State Codes and Statutes

Statutes > California > Ccp > 411.10-411.35

CODE OF CIVIL PROCEDURE
SECTION 411.10-411.35



411.10.  A civil action is commenced by filing a complaint with the
court.


411.20.  (a) If the clerk accepts for filing a complaint or other
first paper, or any subsequent filing, and payment is made by check
which is later returned without payment, the clerk shall, by mail,
notify the party who tendered the check that (1) the check has been
returned without payment, (2) the administrative charge specified in
subdivision (g) has been imposed to reimburse the court for the costs
of processing the returned check and providing the notice specified
in this subdivision, and (3) the party has 20 days from the date of
mailing of the notice within which to pay the filing fee and the
administrative charge, except as provided in subdivision (e). The
notice also shall state that the administrative charge and the filing
fee shall be paid in cash, by certified check, or by other means
specified by the court, but not by traveler's check or personal
check. If the person who tendered the check is not a party to the
action or proposed action, but only is acting on behalf of a party,
the clerk shall notify not only the person who tendered the check,
but also the party or that party's attorney if the party is
represented. The clerk's certificate as to the mailing of notice
pursuant to this section establishes a rebuttable presumption that
the fees were not paid. This presumption is a presumption affecting
the burden of producing evidence.
   (b) The clerk shall void the filing if the party who tendered a
returned check or on whose behalf a returned check was tendered has
not paid the full amount of the fee and the administrative charge by
a means specified in subdivision (a) within 20 days of the date on
which the notice required by subdivision (a) was mailed. Any filing
voided by this section can be disposed of immediately after the 20
days have elapsed without preserving a copy in the court records,
notwithstanding Section 68152 of the Government Code.
   (c) If an adverse party files a response to a complaint, paper or
filing referred to in subdivision (a), together with a filing fee,
and the original filing is voided pursuant to subdivision (b), the
responsive filing is not required and shall be voided. The court
shall, by mail, provide notice to the parties or their attorneys that
the initial paper and the response have been voided. The responding
party's filing fee shall be refunded upon request, provided that the
request for a refund is made within 20 days from the date on which
the notice was mailed. Upon receipt of the request, the court shall
refund the responding party's filing fee without imposing any
administrative charge. A refund under this subdivision is available
if the adverse party has filed only a responsive pleading, but not if
the party has also filed a cross-complaint or other first paper
seeking affirmative relief for which there is a filing fee.
   (d) If an adverse party, or a person acting on behalf of the
adverse party, tenders a check for a required filing fee that is
later returned without payment, the procedures in subdivisions (a)
and (b) shall apply.
   (e) If any trial or other hearing is scheduled to be heard prior
to the expiration of the 20-day period provided for in subdivision
(a), the fee shall be paid prior to the trial or hearing. Failure of
the party to pay the fee prior to the trial or hearing date shall
cause the court to void the filing and proceed as if it had not been
filed.
   (f) If the clerk performs a service or issues any document for
which a fee is required and payment is made by check which is later
returned without payment, the court may order further proceedings
suspended as to the party for whom the check was tendered. If the
court so orders, the clerk shall, by mail, notify the party who
tendered the check that proceedings have been suspended until the
receipt of payment of the required fee and the administrative charge
specified in subdivision (g), by cash cashier's check, or other means
specified by the court, but not by personal check or traveler's
check. If the person who tendered the check is not a party to the
action or proposed action, but only is acting on behalf of a party,
the clerk shall notify not only the person who tendered the check,
but also the party or that party's attorney if the party is
represented. The clerk's certificate as to the mailing of notice
pursuant to this section establishes a rebuttable presumption that
the fees were not paid. This presumption is a presumption affecting
the burden of producing evidence.
   (g) The clerk shall impose an administrative charge for providing
notice that a check submitted for a filing fee has been returned
without payment and for all related administrative, clerical, and
other costs incurred under this section. The administrative charge
shall, in each instance, be either twenty-five dollars ($25) or a
reasonable amount that does not exceed the actual cost incurred by
the court, as determined by the court. The notices provided by the
court under subdivisions (a) and (f) shall state the specific amount
of the administrative charge that shall be paid to the court. Each
administrative charge collected shall be distributed to the court
that incurred the charge as described in Section 68085.1 of the
Government Code.



411.21.  (a) If a complaint or other first paper is accompanied by
payment by check in an amount less than the required fee, the clerk
shall accept the paper for filing, but shall not issue a summons
until the court receives full payment of the required fee. The clerk
shall, by mail, notify the party tendering the check that (1) the
check was made out for an amount less than the required filing fee,
(2) the administrative charge specified in subdivision (g) has been
imposed to reimburse the court for the costs of processing the
partial payment and providing the notice specified in this
subdivision, and (3) the party has 20 days from the date of mailing
of the notice within which to pay the remainder of the required fee
and the administrative charge, except as provided in subdivision (f).
If the person who tendered the check is not a party to the action or
proposed action, but only is acting on behalf of a party, the clerk
shall notify not only the person who tendered the check, and also the
party or that party's attorney, if the party is represented. The
clerk's certificate as to the mailing of notice pursuant to this
section establishes a rebuttable presumption that the fees were not
paid. This presumption is a presumption affecting the burden of
producing evidence. This subdivision does not apply to an unlawful
detainer action.
   (b) The clerk shall void the filing if the party who tendered a
check in an amount less than the required filing fee or on whose
behalf a check in an amount less than the required filing fee was
tendered has not paid the full amount of the fee and the
administrative charge by a means specified in subdivision (a) within
20 days of the date on which the notice required by subdivision (a)
was mailed. Any filing voided by this section may be disposed of
immediately after the 20 days have elapsed without preserving a copy
in the court records notwithstanding Section 68152 of the Government
Code.
   (c) If a check for less than the required fee was tendered, the
remainder of the required fee and the administrative charge were not
paid within the period specified in subdivision (a), and a refund of
the partial payment has not been requested in a writing mailed or
presented by the party or person who tendered the check within 20
days from the date on which the remainder of the required fee was
due, the partial payment shall be remitted to the State Treasurer to
be deposited in the Trial Court Trust Fund, except for the amount of
the administrative charge described in subdivision (g), that shall be
deducted from the partial payment and shall be distributed as
described in subdivision (g) to the court which incurred the charge.
If the party or person who tendered the check for partial payment
requests a refund of the partial payment, in writing, within the time
specified in this subdivision, the clerk shall refund the amount of
the partial payment less the amount of the administrative charge
imposed by that court. All partial payments that the court received
before January 1, 2006, and that remain on deposit for filings that
the clerk voided pursuant to this section, once three years have
passed from the date that the filing was voided, shall be remitted to
the State Treasurer for deposit into the Trial Court Trust Fund.
   (d) If an adverse party files a response to a complaint or other
first paper referred to in subdivision (a), together with a filing
fee, and the original filing is voided pursuant to subdivision (b),
the responsive filing is not required and shall be voided. The court
shall, by mail, provide notice to the parties that the initial paper
and the response have been voided. The responding party's filing fee
shall be refunded upon request, provided that the request for a
refund is made in writing within 20 days from the date on which the
notice was mailed. Upon receipt of the request, the court shall
reimburse the responding party's filing fee without imposing any
administrative charge. A refund under this subdivision is available
if the adverse party has filed only a responsive pleading, but not if
the party has also filed a cross-complaint or other first paper
seeking affirmative relief for which there is a filing fee.
   (e) If an adverse party, or a person acting on behalf of the
adverse party, tenders a check for a required filing fee in an amount
less than the required fee, the procedures in subdivisions (a), (b),
and (c) shall apply.
   (f) If any trial or other hearing is scheduled to be heard prior
to the expiration of the 20-day period provided for in subdivision
(a), the fee shall be paid prior to the trial or hearing. Failure of
the party to pay the fee prior to the trial or hearing date shall
cause the court to void the filing and proceed as if it had not been
filed.
   (g) The clerk shall impose an administrative charge for providing
notice that a check submitted for a filing fee is in an amount less
than the required fee and for all related administrative, clerical,
and other costs incurred under this section. The administrative
charge shall, in each instance, be either twenty-five dollars ($25)
or a reasonable amount that does not exceed the actual cost incurred
by the court, as determined by the court. The notices provided by the
court under subdivision (a) shall state the specific amount of the
administrative charge that shall be paid to the court. Each
administrative charge collected shall be distributed to the court
that incurred the charge as described in Section 68085.1 of the
Government Code. When a partial payment is to be remitted to the
State Treasurer under subdivision (c), the court shall notify the
Administrative Office of the Courts of the amount of (1) the partial
payment collected, and (2) the administrative charge to be deducted
from the payment and to be distributed to the court.



411.35.  (a) In every action, including a cross-complaint for
damages or indemnity, arising out of the professional negligence of a
person holding a valid architect's certificate issued pursuant to
Chapter 3 (commencing with Section 5500) of Division 3 of the
Business and Professions Code, or of a person holding a valid
registration as a professional engineer issued pursuant to Chapter 7
(commencing with Section 6700) of Division 3 of the Business and
Professions Code, or a person holding a valid land surveyor's license
issued pursuant to Chapter 15 (commencing with Section 8700) of
Division 3 of the Business and Professions Code on or before the date
of service of the complaint or cross-complaint on any defendant or
cross-defendant, the attorney for the plaintiff or cross-complainant
shall file and serve the certificate specified by subdivision (b).
   (b) A certificate shall be executed by the attorney for the
plaintiff or cross-complainant declaring one of the following:
   (1) That the attorney has reviewed the facts of the case, that the
attorney has consulted with and received an opinion from at least
one architect, professional engineer, or land surveyor who is
licensed to practice and practices in this state or any other state ,
or who teaches at an accredited college or university and is
licensed to practice in this state or any other state, in the same
discipline as the defendant or cross-defendant and who the attorney
reasonably believes is knowledgeable in the relevant issues involved
in the particular action, and that the attorney has concluded on the
basis of this review and consultation that there is reasonable and
meritorious cause for the filing of this action. The person consulted
may not be a party to the litigation . The person consulted shall
render his or her opinion that the named defendant or cross-defendant
was negligent or was not negligent in the performance of the
applicable professional services.
   (2) That the attorney was unable to obtain the consultation
required by paragraph (1) because a statute of limitations would
impair the action and that the certificate required by paragraph (1)
could not be obtained before the impairment of the action. If a
certificate is executed pursuant to this paragraph, the certificate
required by paragraph (1) shall be filed within 60 days after filing
the complaint.
   (3) That the attorney was unable to obtain the consultation
required by paragraph (1) because the attorney had made three
separate good faith attempts with three separate architects,
professional engineers, or land surveyors to obtain this consultation
and none of those contacted would agree to the consultation.
   (c) Where a certificate is required pursuant to this section, only
one certificate shall be filed, notwithstanding that multiple
defendants have been named in the complaint or may be named at a
later time.
   (d) Where the attorney intends to rely solely on the doctrine of
"res ipsa loquitur," as defined in Section 646 of the Evidence Code,
or exclusively on a failure to inform of the consequences of a
procedure, or both, this section shall be inapplicable. The attorney
shall certify upon filing of the complaint that the attorney is
solely relying on the doctrines of "res ipsa loquitur" or failure to
inform of the consequences of a procedure or both, and for that
reason is not filing a certificate required by this section.
   (e) For purposes of this section, and subject to Section 912 of
the Evidence Code, an attorney who submits a certificate as required
by paragraph (1) or (2) of subdivision (b) has a privilege to refuse
to disclose the identity of the architect, professional engineer, or
land surveyor consulted and the contents of the consultation. The
privilege shall also be held by the architect, professional engineer,
or land surveyor so consulted. If, however, the attorney makes a
claim under paragraph (3) of subdivision (b) that he or she was
unable to obtain the required consultation with the architect,
professional engineer, or land surveyor, the court may require the
attorney to divulge the names of architects, professional engineers,
or land surveyors refusing the consultation.
   (f) A violation of this section may constitute unprofessional
conduct and be grounds for discipline against the attorney, except
that the failure to file the certificate required by paragraph (1) of
subdivision (b), within 60 days after filing the complaint and
certificate provided for by paragraph (2) of subdivision (b), shall
not be grounds for discipline against the attorney.
   (g) The failure to file a certificate in accordance with this
section shall be grounds for a demurrer pursuant to Section 430.10 or
a motion to strike pursuant to Section 435.
   (h) Upon the favorable conclusion of the litigation with respect
to any party for whom a certificate of merit was filed or for whom a
certificate of merit should have been filed pursuant to this section,
the trial court may, upon the motion of a party or upon the court's
own motion, verify compliance with this section, by requiring the
attorney for the plaintiff or cross-complainant who was required by
subdivision (b) to execute the certificate to reveal the name,
address, and telephone number of the person or persons consulted with
pursuant to subdivision (b) that were relied upon by the attorney in
preparation of the certificate of merit. The name, address, and
telephone number shall be disclosed to the trial judge in an
in-camera proceeding at which the moving party shall not be present.
If the trial judge finds there has been a failure to comply with this
section, the court may order a party, a party's attorney, or both,
to pay any reasonable expenses, including attorney's fees, incurred
by another party as a result of the failure to comply with this
section.
   (i) For purposes of this section, "action" includes a complaint or
cross-complaint for equitable indemnity arising out of the rendition
of professional services whether or not the complaint or
cross-complaint specifically asserts or utilizes the terms
"professional negligence" or "negligence."

State Codes and Statutes

Statutes > California > Ccp > 411.10-411.35

CODE OF CIVIL PROCEDURE
SECTION 411.10-411.35



411.10.  A civil action is commenced by filing a complaint with the
court.


411.20.  (a) If the clerk accepts for filing a complaint or other
first paper, or any subsequent filing, and payment is made by check
which is later returned without payment, the clerk shall, by mail,
notify the party who tendered the check that (1) the check has been
returned without payment, (2) the administrative charge specified in
subdivision (g) has been imposed to reimburse the court for the costs
of processing the returned check and providing the notice specified
in this subdivision, and (3) the party has 20 days from the date of
mailing of the notice within which to pay the filing fee and the
administrative charge, except as provided in subdivision (e). The
notice also shall state that the administrative charge and the filing
fee shall be paid in cash, by certified check, or by other means
specified by the court, but not by traveler's check or personal
check. If the person who tendered the check is not a party to the
action or proposed action, but only is acting on behalf of a party,
the clerk shall notify not only the person who tendered the check,
but also the party or that party's attorney if the party is
represented. The clerk's certificate as to the mailing of notice
pursuant to this section establishes a rebuttable presumption that
the fees were not paid. This presumption is a presumption affecting
the burden of producing evidence.
   (b) The clerk shall void the filing if the party who tendered a
returned check or on whose behalf a returned check was tendered has
not paid the full amount of the fee and the administrative charge by
a means specified in subdivision (a) within 20 days of the date on
which the notice required by subdivision (a) was mailed. Any filing
voided by this section can be disposed of immediately after the 20
days have elapsed without preserving a copy in the court records,
notwithstanding Section 68152 of the Government Code.
   (c) If an adverse party files a response to a complaint, paper or
filing referred to in subdivision (a), together with a filing fee,
and the original filing is voided pursuant to subdivision (b), the
responsive filing is not required and shall be voided. The court
shall, by mail, provide notice to the parties or their attorneys that
the initial paper and the response have been voided. The responding
party's filing fee shall be refunded upon request, provided that the
request for a refund is made within 20 days from the date on which
the notice was mailed. Upon receipt of the request, the court shall
refund the responding party's filing fee without imposing any
administrative charge. A refund under this subdivision is available
if the adverse party has filed only a responsive pleading, but not if
the party has also filed a cross-complaint or other first paper
seeking affirmative relief for which there is a filing fee.
   (d) If an adverse party, or a person acting on behalf of the
adverse party, tenders a check for a required filing fee that is
later returned without payment, the procedures in subdivisions (a)
and (b) shall apply.
   (e) If any trial or other hearing is scheduled to be heard prior
to the expiration of the 20-day period provided for in subdivision
(a), the fee shall be paid prior to the trial or hearing. Failure of
the party to pay the fee prior to the trial or hearing date shall
cause the court to void the filing and proceed as if it had not been
filed.
   (f) If the clerk performs a service or issues any document for
which a fee is required and payment is made by check which is later
returned without payment, the court may order further proceedings
suspended as to the party for whom the check was tendered. If the
court so orders, the clerk shall, by mail, notify the party who
tendered the check that proceedings have been suspended until the
receipt of payment of the required fee and the administrative charge
specified in subdivision (g), by cash cashier's check, or other means
specified by the court, but not by personal check or traveler's
check. If the person who tendered the check is not a party to the
action or proposed action, but only is acting on behalf of a party,
the clerk shall notify not only the person who tendered the check,
but also the party or that party's attorney if the party is
represented. The clerk's certificate as to the mailing of notice
pursuant to this section establishes a rebuttable presumption that
the fees were not paid. This presumption is a presumption affecting
the burden of producing evidence.
   (g) The clerk shall impose an administrative charge for providing
notice that a check submitted for a filing fee has been returned
without payment and for all related administrative, clerical, and
other costs incurred under this section. The administrative charge
shall, in each instance, be either twenty-five dollars ($25) or a
reasonable amount that does not exceed the actual cost incurred by
the court, as determined by the court. The notices provided by the
court under subdivisions (a) and (f) shall state the specific amount
of the administrative charge that shall be paid to the court. Each
administrative charge collected shall be distributed to the court
that incurred the charge as described in Section 68085.1 of the
Government Code.



411.21.  (a) If a complaint or other first paper is accompanied by
payment by check in an amount less than the required fee, the clerk
shall accept the paper for filing, but shall not issue a summons
until the court receives full payment of the required fee. The clerk
shall, by mail, notify the party tendering the check that (1) the
check was made out for an amount less than the required filing fee,
(2) the administrative charge specified in subdivision (g) has been
imposed to reimburse the court for the costs of processing the
partial payment and providing the notice specified in this
subdivision, and (3) the party has 20 days from the date of mailing
of the notice within which to pay the remainder of the required fee
and the administrative charge, except as provided in subdivision (f).
If the person who tendered the check is not a party to the action or
proposed action, but only is acting on behalf of a party, the clerk
shall notify not only the person who tendered the check, and also the
party or that party's attorney, if the party is represented. The
clerk's certificate as to the mailing of notice pursuant to this
section establishes a rebuttable presumption that the fees were not
paid. This presumption is a presumption affecting the burden of
producing evidence. This subdivision does not apply to an unlawful
detainer action.
   (b) The clerk shall void the filing if the party who tendered a
check in an amount less than the required filing fee or on whose
behalf a check in an amount less than the required filing fee was
tendered has not paid the full amount of the fee and the
administrative charge by a means specified in subdivision (a) within
20 days of the date on which the notice required by subdivision (a)
was mailed. Any filing voided by this section may be disposed of
immediately after the 20 days have elapsed without preserving a copy
in the court records notwithstanding Section 68152 of the Government
Code.
   (c) If a check for less than the required fee was tendered, the
remainder of the required fee and the administrative charge were not
paid within the period specified in subdivision (a), and a refund of
the partial payment has not been requested in a writing mailed or
presented by the party or person who tendered the check within 20
days from the date on which the remainder of the required fee was
due, the partial payment shall be remitted to the State Treasurer to
be deposited in the Trial Court Trust Fund, except for the amount of
the administrative charge described in subdivision (g), that shall be
deducted from the partial payment and shall be distributed as
described in subdivision (g) to the court which incurred the charge.
If the party or person who tendered the check for partial payment
requests a refund of the partial payment, in writing, within the time
specified in this subdivision, the clerk shall refund the amount of
the partial payment less the amount of the administrative charge
imposed by that court. All partial payments that the court received
before January 1, 2006, and that remain on deposit for filings that
the clerk voided pursuant to this section, once three years have
passed from the date that the filing was voided, shall be remitted to
the State Treasurer for deposit into the Trial Court Trust Fund.
   (d) If an adverse party files a response to a complaint or other
first paper referred to in subdivision (a), together with a filing
fee, and the original filing is voided pursuant to subdivision (b),
the responsive filing is not required and shall be voided. The court
shall, by mail, provide notice to the parties that the initial paper
and the response have been voided. The responding party's filing fee
shall be refunded upon request, provided that the request for a
refund is made in writing within 20 days from the date on which the
notice was mailed. Upon receipt of the request, the court shall
reimburse the responding party's filing fee without imposing any
administrative charge. A refund under this subdivision is available
if the adverse party has filed only a responsive pleading, but not if
the party has also filed a cross-complaint or other first paper
seeking affirmative relief for which there is a filing fee.
   (e) If an adverse party, or a person acting on behalf of the
adverse party, tenders a check for a required filing fee in an amount
less than the required fee, the procedures in subdivisions (a), (b),
and (c) shall apply.
   (f) If any trial or other hearing is scheduled to be heard prior
to the expiration of the 20-day period provided for in subdivision
(a), the fee shall be paid prior to the trial or hearing. Failure of
the party to pay the fee prior to the trial or hearing date shall
cause the court to void the filing and proceed as if it had not been
filed.
   (g) The clerk shall impose an administrative charge for providing
notice that a check submitted for a filing fee is in an amount less
than the required fee and for all related administrative, clerical,
and other costs incurred under this section. The administrative
charge shall, in each instance, be either twenty-five dollars ($25)
or a reasonable amount that does not exceed the actual cost incurred
by the court, as determined by the court. The notices provided by the
court under subdivision (a) shall state the specific amount of the
administrative charge that shall be paid to the court. Each
administrative charge collected shall be distributed to the court
that incurred the charge as described in Section 68085.1 of the
Government Code. When a partial payment is to be remitted to the
State Treasurer under subdivision (c), the court shall notify the
Administrative Office of the Courts of the amount of (1) the partial
payment collected, and (2) the administrative charge to be deducted
from the payment and to be distributed to the court.



411.35.  (a) In every action, including a cross-complaint for
damages or indemnity, arising out of the professional negligence of a
person holding a valid architect's certificate issued pursuant to
Chapter 3 (commencing with Section 5500) of Division 3 of the
Business and Professions Code, or of a person holding a valid
registration as a professional engineer issued pursuant to Chapter 7
(commencing with Section 6700) of Division 3 of the Business and
Professions Code, or a person holding a valid land surveyor's license
issued pursuant to Chapter 15 (commencing with Section 8700) of
Division 3 of the Business and Professions Code on or before the date
of service of the complaint or cross-complaint on any defendant or
cross-defendant, the attorney for the plaintiff or cross-complainant
shall file and serve the certificate specified by subdivision (b).
   (b) A certificate shall be executed by the attorney for the
plaintiff or cross-complainant declaring one of the following:
   (1) That the attorney has reviewed the facts of the case, that the
attorney has consulted with and received an opinion from at least
one architect, professional engineer, or land surveyor who is
licensed to practice and practices in this state or any other state ,
or who teaches at an accredited college or university and is
licensed to practice in this state or any other state, in the same
discipline as the defendant or cross-defendant and who the attorney
reasonably believes is knowledgeable in the relevant issues involved
in the particular action, and that the attorney has concluded on the
basis of this review and consultation that there is reasonable and
meritorious cause for the filing of this action. The person consulted
may not be a party to the litigation . The person consulted shall
render his or her opinion that the named defendant or cross-defendant
was negligent or was not negligent in the performance of the
applicable professional services.
   (2) That the attorney was unable to obtain the consultation
required by paragraph (1) because a statute of limitations would
impair the action and that the certificate required by paragraph (1)
could not be obtained before the impairment of the action. If a
certificate is executed pursuant to this paragraph, the certificate
required by paragraph (1) shall be filed within 60 days after filing
the complaint.
   (3) That the attorney was unable to obtain the consultation
required by paragraph (1) because the attorney had made three
separate good faith attempts with three separate architects,
professional engineers, or land surveyors to obtain this consultation
and none of those contacted would agree to the consultation.
   (c) Where a certificate is required pursuant to this section, only
one certificate shall be filed, notwithstanding that multiple
defendants have been named in the complaint or may be named at a
later time.
   (d) Where the attorney intends to rely solely on the doctrine of
"res ipsa loquitur," as defined in Section 646 of the Evidence Code,
or exclusively on a failure to inform of the consequences of a
procedure, or both, this section shall be inapplicable. The attorney
shall certify upon filing of the complaint that the attorney is
solely relying on the doctrines of "res ipsa loquitur" or failure to
inform of the consequences of a procedure or both, and for that
reason is not filing a certificate required by this section.
   (e) For purposes of this section, and subject to Section 912 of
the Evidence Code, an attorney who submits a certificate as required
by paragraph (1) or (2) of subdivision (b) has a privilege to refuse
to disclose the identity of the architect, professional engineer, or
land surveyor consulted and the contents of the consultation. The
privilege shall also be held by the architect, professional engineer,
or land surveyor so consulted. If, however, the attorney makes a
claim under paragraph (3) of subdivision (b) that he or she was
unable to obtain the required consultation with the architect,
professional engineer, or land surveyor, the court may require the
attorney to divulge the names of architects, professional engineers,
or land surveyors refusing the consultation.
   (f) A violation of this section may constitute unprofessional
conduct and be grounds for discipline against the attorney, except
that the failure to file the certificate required by paragraph (1) of
subdivision (b), within 60 days after filing the complaint and
certificate provided for by paragraph (2) of subdivision (b), shall
not be grounds for discipline against the attorney.
   (g) The failure to file a certificate in accordance with this
section shall be grounds for a demurrer pursuant to Section 430.10 or
a motion to strike pursuant to Section 435.
   (h) Upon the favorable conclusion of the litigation with respect
to any party for whom a certificate of merit was filed or for whom a
certificate of merit should have been filed pursuant to this section,
the trial court may, upon the motion of a party or upon the court's
own motion, verify compliance with this section, by requiring the
attorney for the plaintiff or cross-complainant who was required by
subdivision (b) to execute the certificate to reveal the name,
address, and telephone number of the person or persons consulted with
pursuant to subdivision (b) that were relied upon by the attorney in
preparation of the certificate of merit. The name, address, and
telephone number shall be disclosed to the trial judge in an
in-camera proceeding at which the moving party shall not be present.
If the trial judge finds there has been a failure to comply with this
section, the court may order a party, a party's attorney, or both,
to pay any reasonable expenses, including attorney's fees, incurred
by another party as a result of the failure to comply with this
section.
   (i) For purposes of this section, "action" includes a complaint or
cross-complaint for equitable indemnity arising out of the rendition
of professional services whether or not the complaint or
cross-complaint specifically asserts or utilizes the terms
"professional negligence" or "negligence."


State Codes and Statutes

State Codes and Statutes

Statutes > California > Ccp > 411.10-411.35

CODE OF CIVIL PROCEDURE
SECTION 411.10-411.35



411.10.  A civil action is commenced by filing a complaint with the
court.


411.20.  (a) If the clerk accepts for filing a complaint or other
first paper, or any subsequent filing, and payment is made by check
which is later returned without payment, the clerk shall, by mail,
notify the party who tendered the check that (1) the check has been
returned without payment, (2) the administrative charge specified in
subdivision (g) has been imposed to reimburse the court for the costs
of processing the returned check and providing the notice specified
in this subdivision, and (3) the party has 20 days from the date of
mailing of the notice within which to pay the filing fee and the
administrative charge, except as provided in subdivision (e). The
notice also shall state that the administrative charge and the filing
fee shall be paid in cash, by certified check, or by other means
specified by the court, but not by traveler's check or personal
check. If the person who tendered the check is not a party to the
action or proposed action, but only is acting on behalf of a party,
the clerk shall notify not only the person who tendered the check,
but also the party or that party's attorney if the party is
represented. The clerk's certificate as to the mailing of notice
pursuant to this section establishes a rebuttable presumption that
the fees were not paid. This presumption is a presumption affecting
the burden of producing evidence.
   (b) The clerk shall void the filing if the party who tendered a
returned check or on whose behalf a returned check was tendered has
not paid the full amount of the fee and the administrative charge by
a means specified in subdivision (a) within 20 days of the date on
which the notice required by subdivision (a) was mailed. Any filing
voided by this section can be disposed of immediately after the 20
days have elapsed without preserving a copy in the court records,
notwithstanding Section 68152 of the Government Code.
   (c) If an adverse party files a response to a complaint, paper or
filing referred to in subdivision (a), together with a filing fee,
and the original filing is voided pursuant to subdivision (b), the
responsive filing is not required and shall be voided. The court
shall, by mail, provide notice to the parties or their attorneys that
the initial paper and the response have been voided. The responding
party's filing fee shall be refunded upon request, provided that the
request for a refund is made within 20 days from the date on which
the notice was mailed. Upon receipt of the request, the court shall
refund the responding party's filing fee without imposing any
administrative charge. A refund under this subdivision is available
if the adverse party has filed only a responsive pleading, but not if
the party has also filed a cross-complaint or other first paper
seeking affirmative relief for which there is a filing fee.
   (d) If an adverse party, or a person acting on behalf of the
adverse party, tenders a check for a required filing fee that is
later returned without payment, the procedures in subdivisions (a)
and (b) shall apply.
   (e) If any trial or other hearing is scheduled to be heard prior
to the expiration of the 20-day period provided for in subdivision
(a), the fee shall be paid prior to the trial or hearing. Failure of
the party to pay the fee prior to the trial or hearing date shall
cause the court to void the filing and proceed as if it had not been
filed.
   (f) If the clerk performs a service or issues any document for
which a fee is required and payment is made by check which is later
returned without payment, the court may order further proceedings
suspended as to the party for whom the check was tendered. If the
court so orders, the clerk shall, by mail, notify the party who
tendered the check that proceedings have been suspended until the
receipt of payment of the required fee and the administrative charge
specified in subdivision (g), by cash cashier's check, or other means
specified by the court, but not by personal check or traveler's
check. If the person who tendered the check is not a party to the
action or proposed action, but only is acting on behalf of a party,
the clerk shall notify not only the person who tendered the check,
but also the party or that party's attorney if the party is
represented. The clerk's certificate as to the mailing of notice
pursuant to this section establishes a rebuttable presumption that
the fees were not paid. This presumption is a presumption affecting
the burden of producing evidence.
   (g) The clerk shall impose an administrative charge for providing
notice that a check submitted for a filing fee has been returned
without payment and for all related administrative, clerical, and
other costs incurred under this section. The administrative charge
shall, in each instance, be either twenty-five dollars ($25) or a
reasonable amount that does not exceed the actual cost incurred by
the court, as determined by the court. The notices provided by the
court under subdivisions (a) and (f) shall state the specific amount
of the administrative charge that shall be paid to the court. Each
administrative charge collected shall be distributed to the court
that incurred the charge as described in Section 68085.1 of the
Government Code.



411.21.  (a) If a complaint or other first paper is accompanied by
payment by check in an amount less than the required fee, the clerk
shall accept the paper for filing, but shall not issue a summons
until the court receives full payment of the required fee. The clerk
shall, by mail, notify the party tendering the check that (1) the
check was made out for an amount less than the required filing fee,
(2) the administrative charge specified in subdivision (g) has been
imposed to reimburse the court for the costs of processing the
partial payment and providing the notice specified in this
subdivision, and (3) the party has 20 days from the date of mailing
of the notice within which to pay the remainder of the required fee
and the administrative charge, except as provided in subdivision (f).
If the person who tendered the check is not a party to the action or
proposed action, but only is acting on behalf of a party, the clerk
shall notify not only the person who tendered the check, and also the
party or that party's attorney, if the party is represented. The
clerk's certificate as to the mailing of notice pursuant to this
section establishes a rebuttable presumption that the fees were not
paid. This presumption is a presumption affecting the burden of
producing evidence. This subdivision does not apply to an unlawful
detainer action.
   (b) The clerk shall void the filing if the party who tendered a
check in an amount less than the required filing fee or on whose
behalf a check in an amount less than the required filing fee was
tendered has not paid the full amount of the fee and the
administrative charge by a means specified in subdivision (a) within
20 days of the date on which the notice required by subdivision (a)
was mailed. Any filing voided by this section may be disposed of
immediately after the 20 days have elapsed without preserving a copy
in the court records notwithstanding Section 68152 of the Government
Code.
   (c) If a check for less than the required fee was tendered, the
remainder of the required fee and the administrative charge were not
paid within the period specified in subdivision (a), and a refund of
the partial payment has not been requested in a writing mailed or
presented by the party or person who tendered the check within 20
days from the date on which the remainder of the required fee was
due, the partial payment shall be remitted to the State Treasurer to
be deposited in the Trial Court Trust Fund, except for the amount of
the administrative charge described in subdivision (g), that shall be
deducted from the partial payment and shall be distributed as
described in subdivision (g) to the court which incurred the charge.
If the party or person who tendered the check for partial payment
requests a refund of the partial payment, in writing, within the time
specified in this subdivision, the clerk shall refund the amount of
the partial payment less the amount of the administrative charge
imposed by that court. All partial payments that the court received
before January 1, 2006, and that remain on deposit for filings that
the clerk voided pursuant to this section, once three years have
passed from the date that the filing was voided, shall be remitted to
the State Treasurer for deposit into the Trial Court Trust Fund.
   (d) If an adverse party files a response to a complaint or other
first paper referred to in subdivision (a), together with a filing
fee, and the original filing is voided pursuant to subdivision (b),
the responsive filing is not required and shall be voided. The court
shall, by mail, provide notice to the parties that the initial paper
and the response have been voided. The responding party's filing fee
shall be refunded upon request, provided that the request for a
refund is made in writing within 20 days from the date on which the
notice was mailed. Upon receipt of the request, the court shall
reimburse the responding party's filing fee without imposing any
administrative charge. A refund under this subdivision is available
if the adverse party has filed only a responsive pleading, but not if
the party has also filed a cross-complaint or other first paper
seeking affirmative relief for which there is a filing fee.
   (e) If an adverse party, or a person acting on behalf of the
adverse party, tenders a check for a required filing fee in an amount
less than the required fee, the procedures in subdivisions (a), (b),
and (c) shall apply.
   (f) If any trial or other hearing is scheduled to be heard prior
to the expiration of the 20-day period provided for in subdivision
(a), the fee shall be paid prior to the trial or hearing. Failure of
the party to pay the fee prior to the trial or hearing date shall
cause the court to void the filing and proceed as if it had not been
filed.
   (g) The clerk shall impose an administrative charge for providing
notice that a check submitted for a filing fee is in an amount less
than the required fee and for all related administrative, clerical,
and other costs incurred under this section. The administrative
charge shall, in each instance, be either twenty-five dollars ($25)
or a reasonable amount that does not exceed the actual cost incurred
by the court, as determined by the court. The notices provided by the
court under subdivision (a) shall state the specific amount of the
administrative charge that shall be paid to the court. Each
administrative charge collected shall be distributed to the court
that incurred the charge as described in Section 68085.1 of the
Government Code. When a partial payment is to be remitted to the
State Treasurer under subdivision (c), the court shall notify the
Administrative Office of the Courts of the amount of (1) the partial
payment collected, and (2) the administrative charge to be deducted
from the payment and to be distributed to the court.



411.35.  (a) In every action, including a cross-complaint for
damages or indemnity, arising out of the professional negligence of a
person holding a valid architect's certificate issued pursuant to
Chapter 3 (commencing with Section 5500) of Division 3 of the
Business and Professions Code, or of a person holding a valid
registration as a professional engineer issued pursuant to Chapter 7
(commencing with Section 6700) of Division 3 of the Business and
Professions Code, or a person holding a valid land surveyor's license
issued pursuant to Chapter 15 (commencing with Section 8700) of
Division 3 of the Business and Professions Code on or before the date
of service of the complaint or cross-complaint on any defendant or
cross-defendant, the attorney for the plaintiff or cross-complainant
shall file and serve the certificate specified by subdivision (b).
   (b) A certificate shall be executed by the attorney for the
plaintiff or cross-complainant declaring one of the following:
   (1) That the attorney has reviewed the facts of the case, that the
attorney has consulted with and received an opinion from at least
one architect, professional engineer, or land surveyor who is
licensed to practice and practices in this state or any other state ,
or who teaches at an accredited college or university and is
licensed to practice in this state or any other state, in the same
discipline as the defendant or cross-defendant and who the attorney
reasonably believes is knowledgeable in the relevant issues involved
in the particular action, and that the attorney has concluded on the
basis of this review and consultation that there is reasonable and
meritorious cause for the filing of this action. The person consulted
may not be a party to the litigation . The person consulted shall
render his or her opinion that the named defendant or cross-defendant
was negligent or was not negligent in the performance of the
applicable professional services.
   (2) That the attorney was unable to obtain the consultation
required by paragraph (1) because a statute of limitations would
impair the action and that the certificate required by paragraph (1)
could not be obtained before the impairment of the action. If a
certificate is executed pursuant to this paragraph, the certificate
required by paragraph (1) shall be filed within 60 days after filing
the complaint.
   (3) That the attorney was unable to obtain the consultation
required by paragraph (1) because the attorney had made three
separate good faith attempts with three separate architects,
professional engineers, or land surveyors to obtain this consultation
and none of those contacted would agree to the consultation.
   (c) Where a certificate is required pursuant to this section, only
one certificate shall be filed, notwithstanding that multiple
defendants have been named in the complaint or may be named at a
later time.
   (d) Where the attorney intends to rely solely on the doctrine of
"res ipsa loquitur," as defined in Section 646 of the Evidence Code,
or exclusively on a failure to inform of the consequences of a
procedure, or both, this section shall be inapplicable. The attorney
shall certify upon filing of the complaint that the attorney is
solely relying on the doctrines of "res ipsa loquitur" or failure to
inform of the consequences of a procedure or both, and for that
reason is not filing a certificate required by this section.
   (e) For purposes of this section, and subject to Section 912 of
the Evidence Code, an attorney who submits a certificate as required
by paragraph (1) or (2) of subdivision (b) has a privilege to refuse
to disclose the identity of the architect, professional engineer, or
land surveyor consulted and the contents of the consultation. The
privilege shall also be held by the architect, professional engineer,
or land surveyor so consulted. If, however, the attorney makes a
claim under paragraph (3) of subdivision (b) that he or she was
unable to obtain the required consultation with the architect,
professional engineer, or land surveyor, the court may require the
attorney to divulge the names of architects, professional engineers,
or land surveyors refusing the consultation.
   (f) A violation of this section may constitute unprofessional
conduct and be grounds for discipline against the attorney, except
that the failure to file the certificate required by paragraph (1) of
subdivision (b), within 60 days after filing the complaint and
certificate provided for by paragraph (2) of subdivision (b), shall
not be grounds for discipline against the attorney.
   (g) The failure to file a certificate in accordance with this
section shall be grounds for a demurrer pursuant to Section 430.10 or
a motion to strike pursuant to Section 435.
   (h) Upon the favorable conclusion of the litigation with respect
to any party for whom a certificate of merit was filed or for whom a
certificate of merit should have been filed pursuant to this section,
the trial court may, upon the motion of a party or upon the court's
own motion, verify compliance with this section, by requiring the
attorney for the plaintiff or cross-complainant who was required by
subdivision (b) to execute the certificate to reveal the name,
address, and telephone number of the person or persons consulted with
pursuant to subdivision (b) that were relied upon by the attorney in
preparation of the certificate of merit. The name, address, and
telephone number shall be disclosed to the trial judge in an
in-camera proceeding at which the moving party shall not be present.
If the trial judge finds there has been a failure to comply with this
section, the court may order a party, a party's attorney, or both,
to pay any reasonable expenses, including attorney's fees, incurred
by another party as a result of the failure to comply with this
section.
   (i) For purposes of this section, "action" includes a complaint or
cross-complaint for equitable indemnity arising out of the rendition
of professional services whether or not the complaint or
cross-complaint specifically asserts or utilizes the terms
"professional negligence" or "negligence."