AB 2106 requires plaintiffs who sue licensed architects, landscape architects, professional engineers, professional geologists, professional geophysicists, or land surveyors for claims arising out of professional services to file a separate "certificate of merit" signed by a qualified practitioner in the same discipline before or at the time the complaint is served. The certificate must state that the attorney reviewed the facts, consulted with a qualified practitioner who is not a party or former employee or the design professional in charge, and concluded there is a reasonable and meritorious cause to file the action; the practitioner must state whether the defendant was negligent.
The bill adds procedural consequences and protections: one certificate per named defendant/discipline, a narrow exception when a plaintiff relies solely on res ipsa loquitur or failure to inform, a provisional filing route when a statute of limitations threatens (with a 60‑day cure period), a limited privilege protecting the consultant’s identity and the consultation, and remedies including demurrer/motion to strike and potential discipline for violations. The measure substantially raises pre‑suit screening and evidence expectations in design‑professional liability litigation and shifts costs and gatekeeping onto plaintiffs and their counsel.
At a Glance
What It Does
The bill requires an attorney to file a separate certificate of merit signed by a licensed practitioner in the same discipline as the defendant, stating that the attorney reviewed the case, obtained a consultation, and that the practitioner believes there is reasonable and meritorious cause. It prescribes practitioner qualifications, a provisional filing path when the statute of limitations would otherwise bar suit, and procedural consequences for noncompliance.
Who It Affects
Licensed architects, landscape architects, professional engineers, professional geologists, professional geophysicists, and land surveyors; plaintiff attorneys bringing malpractice or related claims against those professionals; defense counsel and professional liability insurers; and trial courts asked to adjudicate privilege and compliance.
Why It Matters
AB 2106 converts what is often a post‑complaint expert disclosure into a required pre‑filing screening step for design‑professional claims, likely reducing marginal suits but increasing up‑front costs and logistics for plaintiffs. It also creates new privilege and in‑camera review rules that courts and parties will need to operationalize.
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What This Bill Actually Does
AB 2106 imposes a pre‑filing certification requirement tailored to malpractice and related claims against design professionals. Before or when serving a complaint or cross‑complaint naming a licensed architect, landscape architect, professional engineer, professional geologist, professional geophysicist, or land surveyor, the plaintiff’s attorney must file a separate certificate stating they reviewed the facts and consulted with at least one qualified practitioner in the same discipline who provided an opinion that there is a reasonable and meritorious basis to sue.
The practitioner must state whether, in their opinion, the named defendant was negligent.
The bill sets who may serve as the consulting practitioner: they cannot be a party, a current or former employee of a party, or the design professional in charge of the project at issue. They must be an architect, landscape architect, professional engineer, professional geologist, professional geophysicist, or land surveyor and must meet experience or academic thresholds — either licensed and practicing in the state for at least 15 years in the same discipline or a teacher at an accredited college who is licensed in that discipline and has been licensed for at least 15 years.
Where multiple defendants span different disciplines, the statute contemplates one certificate per named defendant covering that defendant’s discipline.There are limited exceptions and special procedures. The rule does not apply when the attorney is relying solely on res ipsa loquitur or exclusively on a failure‑to‑inform theory; in that case the attorney must so certify instead of filing a certificate of merit.
If a statute of limitations would impair the action before an expert consultation can be obtained, the attorney may file a provisional certificate asserting that inability and then must file the full certificate within 60 days. Alternatively, the attorney may certify that after three separate good‑faith attempts with three separate practitioners no one would agree to consult.AB 2106 also creates confidentiality and enforcement rules.
The practitioner and the attorney have a privilege to refuse to disclose the identity of the consulted practitioner and the content of the consultation, though the court may require disclosure if the attorney claims inability to obtain a consultation. Failure to file the required certificate is grounds for demurrer or a motion to strike, and violations can amount to unprofessional conduct; the bill allows the trial court, after a favorable outcome to the defendant, to conduct an in‑camera verification of compliance and to sanction noncompliance by ordering payment of reasonable expenses, including attorney fees.
The Five Things You Need to Know
The certificate must be filed and served separately from the complaint or cross‑complaint and must state that the attorney reviewed the case and consulted a qualified practitioner who opined there is reasonable and meritorious cause.
A practitioner must be licensed in the same discipline, not a party or current/former employee, not the design professional in charge for the project, and must have at least 15 years’ licensure in that discipline (or be a college teacher with the same 15‑year licensing threshold).
If a statute of limitations prevents obtaining the consultation before filing, the attorney may file a provisional certificate and then must file the full certificate within 60 days of filing the complaint.
The consultation and the identity of the consulted practitioner are protected by privilege, but the court may demand disclosure if the attorney claims inability to obtain a consultation or for in‑camera verification after a defendant’s favorable outcome.
Failure to file the certificate is a procedural defect subject to demurrer or motion to strike and may constitute unprofessional conduct; the court may order payment of reasonable expenses for noncompliance.
Section-by-Section Breakdown
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Scope and filing requirement
This subsection sets the baseline obligation: in any action (including cross‑complaints) arising out of professional services by listed design professionals, the plaintiff’s attorney must file and serve a separate certificate of merit. The language ties the requirement to holding a valid license or registration on or before service, anchoring the rule to licensure status at the time claims are made.
Contents of the certificate and practitioner opinion
Subdivision (b) requires that the certificate be executed by a licensed practitioner who confirms the attorney reviewed the facts, that a consultation occurred, and that there is reasonable and meritorious cause to sue; the practitioner must also state whether the named defendant was negligent. This subsection also creates two procedural workarounds: a provisional certificate where a statute of limitations would otherwise bar the claim (with a 60‑day cure) and a certification that three good‑faith attempts failed to secure a consultation.
Practitioner qualifications and disqualifications
The bill spells out who may serve as the consulting practitioner: they must be the same discipline as the defendant, not a party or current/former employee, and not the design professional in charge of the contested project. They must either have been licensed and practicing in the state for at least 15 years in that discipline or be a licensed teacher at an accredited college with at least 15 years of licensure. Those thresholds narrow the eligible pool and affect expert sourcing.
Single‑certificate rule and specified exceptions
Subdivision (c) limits certificates to one per named defendant by discipline, preventing duplicative filings for the same professional role. Subdivision (d) makes the rule inapplicable when the attorney is relying solely on res ipsa loquitur or solely on a failure‑to‑inform claim, provided the attorney files a certification that those doctrines alone support the complaint.
Privilege, in‑camera review, and post‑litigation verification
The bill grants a privilege to the attorney and consulted practitioner to refuse disclosure of the consultant’s identity and consultation contents, subject to Section 912 of the Evidence Code. However, the court may require disclosure if the attorney claims inability to obtain a consultation, and after a favorable outcome for a defendant the court may conduct an in‑camera verification of compliance and then, if it finds failure to comply, order payment of reasonable expenses including fees.
Enforcement, sanctions, and broad definition of covered claims
The statute makes violations potentially unprofessional conduct and explicitly provides that failure to file supports a demurrer or motion to strike. It also clarifies that 'action' reaches not only negligence claims but indemnity, fraud, misrepresentation, nuisance, and any claim arising from rendition of professional services, broadening the statute’s procedural reach beyond explicitly labeled malpractice suits.
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Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Licensed design professionals (architects, engineers, surveyors, geologists, geophysicists): The pre‑filing certification raises the bar for plaintiffs and can reduce the number of marginal or speculative suits they must defend.
- Professional liability insurers: Insurers are likely to see fewer meritless claims reach full litigation and may benefit from earlier case screening and potentially reduced defense exposure.
- Trial courts and judicial efficiency advocates: The certificate creates a procedural mechanism to dispose of deficient claims earlier via demurrer or motion to strike, preserving judicial resources.
Who Bears the Cost
- Plaintiffs and plaintiff attorneys: They must obtain timely consultation from a qualified, experienced practitioner (often at cost), manage provisional filings when limitations loom, and navigate privilege and disclosure rules — increasing pre‑suit expense and logistical complexity.
- Smaller or newer design professionals as consultants: The bill’s 15‑year licensing threshold and in‑state practice requirement shrink the pool of available consultants, concentrating demand on highly experienced practitioners who can command higher fees.
- Courts and judges: Judges will face in‑camera reviews, privilege dispute resolution, and enforcement hearings, which create workload and require careful handling to protect confidentiality while policing compliance.
Key Issues
The Core Tension
The bill balances two legitimate aims—stopping frivolous or speculative design‑professional litigation through early expert screening, and preserving access to court for plaintiffs with valid claims—by imposing costly pre‑filing requirements and narrow consultant eligibility that can both deter meritless suits and unintentionally block or delay meritorious ones while creating confidentiality and enforcement headaches for courts and parties.
AB 2106 creates practical and doctrinal tensions. Requiring a pre‑filing expert consultation improves early screening but shifts cost and time burdens to plaintiffs and their counsel, potentially discouraging meritorious claims where plaintiffs cannot afford or quickly secure an eligible practitioner.
The 15‑year licensure requirement and in‑state practice/teaching predicates narrow the consultant pool; for specialized disciplines or small markets this could be a real bottleneck that raises expert fees and delays filings.
The privilege and disclosure scheme is simultaneously protective and conditional. Giving the attorney and practitioner a privilege to withhold the consultant’s identity and communication preserves confidentiality, but allowing the court to demand disclosure if the attorney claims inability to obtain a consultation invites litigation over good‑faith efforts and may undermine the practical confidentiality claim.
The in‑camera post‑litigation verification mechanism protects public disclosure but places judges in the position of policing orthodoxy of expert selection and may generate further motions and appeals. Finally, the bill’s broad definition of "action" extends the certificate requirement to many theories of recovery tied to professional services, increasing uncertainty for plaintiffs about when the rule applies.
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