Strauch v. Superior Court

[47]

Opinion

BLEASE, J.

Petitioners Harold B. Strauch, M.D., and Harold B. Strauch, M.D., a medical corporation, petition the court for a writ of mandate directing the superior court to enter an order granting petitioners’ motion to strike the medical malpractice complaint filed by real party Wesley J. Welker and to deny Welker’s motion for relief pursuant to Code of Civil Procedure section 473.

The sole issue we consider is whether Welker complied with Code of Civil Procedure section 411.30 which requires the filing of a certificate of merit incident to the maintenance of a medical malpractice action. We shall deny the writ upon the ground that intervening amendments to section 411.30 apply to validate the filing of a certificate of merit after the filing of a complaint for medical malpractice.

I

On August 22, 1979, Welker filed a complaint for medical malpractice against petitioner but did not

accompany it

with a certificate of merit or a certificate of inability to timely comply as then required by Code of Civil Procedure section 411.30. (Stats. 1978, ch. 1165, § 1.)

Petitioners moved to strike the complaint claiming that Welker’s failure was jurisdictional. Welker sought and was granted relief from late filing for mistake of law pursuant to Code of Civil Procedure section 473 and filed the certificate contemplated by section 411.30. Petitioners’ motion was denied.

II

Petitioners claim that the trial court abused its discretion when it refused to strike Welker’s complaint and granted Welker’s motion for relief from late filing. They seek extraordinary relief to enforce statutory provisions applicable at the time of the trial court’s decision but since repealed.

At the. time Welker filed his complaint for medical malpractice, Code of Civil Procedure section 411.30

1

provided that “no complaint [for