United States District Court, S.D. California
ORDER GRANTING DEFENDANTS’ MOTIONS TO
Ted Moskowitz, Chief Judge
Party Plaintiff KMP Plumbing (“KMP”) filed a
Third Party Complaint on October 22, 2015, against Third
Party Defendants Platt/Whitelaw Architects, Inc.
(“Platt”), and Deck Engineering Consultants, Inc.
(“DEC”). (ECF No. 50.) Platt and DEC each moved
separately to dismiss. (ECF Nos. 53, 54.) For the reasons
discussed below, Defendants’ motions are GRANTED.
issues in this case arise out of damage to a property in San
Diego allegedly caused by a hot water heater. (Compl. ¶
11, ECF No. 1.) The original complaint was brought by
Hartford Casualty Insurance Company against A.O. Smith
Corporation. (Compl. p. 1.) Following initial discovery, the
Court granted the parties’ joint motion for leave to
file a Third Party Complaint for indemnity and contribution
against KMP. (ECF Nos. 25, 28.) KMP in turn requested, and
was granted, leave to file a Third Party Complaint against
Platt and DEC. (ECF Nos. 45, 49.) Defendants filed separate
motions to dismiss. (ECF Nos. 53, 54.)
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) should be granted only where a plaintiff's
complaint lacks a "cognizable legal theory" or
sufficient facts to support a cognizable legal theory.
Balistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9th Cir. 1988). When reviewing a motion to dismiss, the
allegations of material fact in plaintiff’s complaint
are taken as true and construed in the light most favorable
to the plaintiff. See Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
detailed factual allegations are not required, factual
allegations “must be enough to raise a right to relief
above the speculative level.” Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007). “A
plaintiff’s obligation to prove the
‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not show[n] that the pleader is entitled
to relief.” Ashcroft v. Iqbal, 565 U.S. 662,
679 (2009) (internal quotation marks omitted). Only a
complaint that states a plausible claim for relief will
survive a motion to dismiss. Id.
Defendants filed separate motions to dismiss, the motions
each make the same arguments: that California law requires
KMP to file a certificate of merit, and that KMP failed to
plead facts sufficient to state a claim. Each argument is
discussed in turn.
Certificate of Merit
Civil Procedure Code § 411.35 requires that a
plaintiff’s counsel alleging negligence on the part of
an architect, engineer, or surveyor include a certificate of
merit attesting that the attorney has consulted with and
received an opinion of at least one professional, and
subsequently determined from the opinion that the case is
meritorious. See Cal. Civ. Proc. Code §
411.35(b)(1). Because KMP did not include a certificate of
merit with the TPC, Defendants argue that such a deficiency
requires dismissal. KMP argues that the requirement is
procedural and therefore not applicable in cases filed in
federal court pursuant to diversity jurisdiction.
cite two cases from the Northern District of California for
the proposition that the certificate requirement is
procedural and therefore, under the Erie doctrine,
does not apply to diversity cases. See Apex Directional
Drilling, LLC v. SHN Consulting Eng’rs &
Geologists, Inc., 119 F.Supp.3d 1117 (N.D. Cal. 2015);
Rafael Town Ctr. Investors v. Weitz Co., No. C
06-6633 SI, 2007 WL 1577886 (N.D. Cal. May 31, 2007). The
Court finds these decisions persuasive.
for the reasons outlined by Judge Seeborg in Apex
Drilling, 119 F.Supp.3d at 1129-30, the merit
certificate requirement is a rule of procedure that does not
apply in this diversity case.
Third Party Complaint (“TPC”) contains an
“Introductory Allegations” section that merely
recites the procedural history of this case. (See
TPC, ECF No. 50, ¶¶ 1-9.) In this section, KMP
states that, “Hartford’s purported damages were
not caused by KMP’s conduct but, instead, were caused,
in whole or in part, by Platt and DEC’s conduct and
actions.” (TPC ¶ 9.) In KMP’s first cause of
action for implied indemnity, KMP again states that,
"the damages, if any, . . . were directly and