Demurrer to SAC
Case No. CU24-01023
Demurrer to SAC
Defendant AECOM Technical Services, Inc.’s demurrer to Plaintiffs’ second amended complaint is sustained without leave to amend.
The court takes judicial notice of the Organizational Record Forms for Defendant AECOM dated December 10, 2008 and September 8, 2023 as the records of a state administrative agency. (Evid. Code § 452(c); Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750.)
The requirement of a certificate of merit applies to every action “arising out of the professional negligence of a person holding a valid architect’s certificate ... or of a
person holding a valid registration as a professional engineer”. (Code Civ. Proc. § 411.35(a), emphases added.) The failure to file a certificate is grounds for a demurrer. (Code Civ. Proc. § 411.35(g).)
A corporation may be a “person holding a valid registration as a professional engineer”. (Bus. & Prof. Code § 6738(a); see, e.g., Curtis Eng’g Corp. v. Superior Court (2017) 16 Cal.App.5th 542, 545-546 [applying section 411.35 to a corporate provider of engineering services]; Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 357 [same].) The judicially noticed records establish that Defendant AECOM was a corporate provider of professional engineering services with licensed engineers as owners or officers in charge at all times relevant to Plaintiffs’ claims. (RJN, Exhs. A-B.)
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Despite Plaintiffs’ attempt to argue otherwise, all of their claims against Defendant AECOM arise out of its alleged professional negligence. Plaintiffs explicitly alleged that Defendant “is in the business of providing construction design services” (SAC, ¶ 9) and breached its duty to Plaintiff by negligently “engineering” and “designing” the construction work. (SAC, ¶¶ 35, 45.) More specifically, Plaintiffs allege that Defendant failed to “properly clos[e] off the subject premises to civilian vehicles”. (Ibid.)
Any misconfiguration of the “delineators” that might have improperly permitted unauthorized vehicles into the work area involves engineering judgment and constitutes professional work product. Being able to properly discern issues to address from inspections of the worksite (or to determine whether the manner of inspection is adequate) would also require specialized engineering judgment. Consequently, Plaintiffs’ counsel was required to file and serve the certificate pursuant to section 411.35(b) before the date of service of the complaint on any defendant or, if Plaintiffs’ counsel was unable to obtain the consultation because a statute of limitations would impair the action, within 60 days after filing the complaint.
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