Strauch v. Superior Court

• Decision Date: 18 June 1980
• Citation: 107 Cal.App.3d 45,165 Cal.Rptr. 552
• Court: California Court of Appeals
• Parties: Harold B. STRAUCH, M. D., et al., Petitioners, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; Wesley J. WELKER, Real Party in Interest. Civ. 19285.

Page 552

165 Cal.Rptr. 552

107 Cal.App.3d 45

Harold B. STRAUCH, M. D., et al., Petitioners, v.The SUPERIOR COURT OF SACRAMENTO COUNTY, RespondentWesley J. WELKER, Real Party in Interest.

Civ. 19285.

Court of Appeal, Third District, California.

June 18, 1980.

Hardy, Erich & Brown, Dayton, Van Longyear and John Quincy Brown, Jr., Sacramento, for petitioners.

No appearance for respondent.

William H. Shade and Richard S. Simmons, Sacramento, for real party in interest.

BLEASE, Associate Justice.

PetitionersHarold 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 partyWesley 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extraordinary relief to enforce statutory provisions applicable at the time of the trial court's decision but since repealed.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 411.30¹ provided that "no complaint (for medical malpractice) shall be accepted for filing unless it is accompanied by" a certificate of merit or a certificate of inability to timely comply.Welker provided neither.

Subsequent to the trial court's action permitting Welker to file the certificate of merit, section 411.30 was amended, effective January 1, 1980, to repeal the provision and to require that the certificate of merit be filed on or before the date of service of the complaint on any defendant and to make the complaint subject to demurrer for failure to comply.²

The amended provisions presently operate to authorized the filing of a certificate of merit after the filing of a medical malpractice complaint and validate Welker's filings.

Statutes are presumed to operate prospectively.(Civ.Code, § 3.)"A statute is not made retroactive merely because it draws upon facts existing prior to its enactment.Thus changes in procedural law have been held applicable to existing causes of action.The effect of such statutes is actually prospective since they relate to the procedure to be followed in the future."(Olivas v. Weiner(1954)127 Cal.App.2d 597, 600-601, 274 P.2d 476, 479.)

A statute is procedural when it neither creates a new cause of action nor deprives defendant of any defense on the merits.(Owens v. Superior Court(1959)52 Cal.2d 822, 833, 345 P.2d 921.)An amendment of a procedural statute applies to cases pending at the time of its enactment, providing vested rights are not affected.(San Bernardino County v. Indus. Acc. Com.(1933)217 Cal. 618, 630, 20 P.2d 673;Maguire v. Cunningham(1923)64 Cal.App. 536, 553, 222 P. 838;Lincoln v. Superior Court(1934)2 Cal.2d 127, 129-130, 39 P.2d 405;Dept. of Alcoholic Bev. Control v. Superior Court(1968)268 Cal.App.2d 67, 75- 76, 73 Cal.Rptr. 780;Owens v. Superior Court, supra, 52 Cal.2d at p. 833, 345 P.2d 921.

The 1979amendments to section 411.30 are procedural for they do not create a new cause of action or deprive a malpractice defendant of any defense on the merits or affect vested rights.

The manifest policy of section 411.30 is to require that a plaintiff provide some independent support of the merits of the action before the action is pursued.Welker has satisfied the policy.Although Welker did not file the certificate of merit in advance of service of the complaint, as is required by the 1979amendments to section 411.30, the failure is demurrable only and curable, as here, by the filing of the certificate.

Because of the intervening effect of the amendments to section 411.30, we need not review petitioners' claims regarding Code of Civil Procedure section 473.

The petition for writ of mandate is denied and the alternative writ of mandate is discharged.

REGAN, Acting P. J., and SAKUMA, ^* J., concur.

1Section 411.30 was enacted by Statutes 1978, chapter 1165, section 1, effective January 1, 1979.The section provided in pertinent part as follows: "(a) In any action for damages arising out of the professional negligence of a person holding a valid physician's and surgeon's certificate . . . no complaint shall be accepted for filing unless it is accompanied by the certificate specified in subdivision (b).(P)(b) A certificate shall be executed by the attorney for the plaintiff declaring either: (P)(1) That the attorney has reviewed the facts of the case, that the attorney has consulted with at least one physician and...