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District Court of Appeal, Second District, Division 2, California.

WEST COVINA ENTERPRISES, Inc., a corporation, Plaintiff and Respondent, v. John H. CHALMERS, Defendant and Appellant.*

Civ. 22108.

Decided: April 17, 1957

Morrow & Morrow, Los Angeles, for plaintiff and respondent. Louis M. Welsh, Los Angeles, David H. Thompson, San Diego, for defendant and appellant.

Appellant argues in support of his petition for rehearing that his contract could not be performed lawfully because it was impossible to secure an architect's certificate in time to do so; that this impossibility grew out of absence of opportunity to take an examination and thus prove his qualifications.

That the contract did not call for a violation of the law plainly appears from the agreement to comply with the requirements and regulations of the California State Department of Public Health, and the further fact that § 406(b) of those regulations provides: ‘Plans and specifications shall be prepared by a duly licensed architect or a registered civil engineer.’ As pointed out in our previous opinion there were two ways to comply with this regulation, the obtaining of a temporary certificate under § 5540, Business & Professions Code, or a permanent certificate under §§ 5550–5551.

Counsel claim that § 5540 is inapplicable because it refers to one ‘who is engaged in the practice of architecture outside this State’ and plaintiff had moved to California before the contract was signed. True, that signing was on April 12, 1954, and plaintiff had become a resident of California in March of that year. He began his work in February and his pay started in that month. But the contract is dated January 2, 1954, and, as performance had begun at least two months before the actual signing, the presumption that January 2 is the true date, Code Civ.Proc. § 1963, subd. 23, should prevail. To say the least, its provisions are retroactive to January 2nd. Appellant was a nonresident at the time the actual arrangement was made and then was certificated within the State of Nebraska. We find it too narrow a construction of § 5540 to hold that it demands residence in a sister state as a condition of issuance of a temporary certificate here. We think its object is fulfilled, during the transition period that it covers, by the existence of a certificate to practice elsewhere, regardless of whether the architect is then actually residing in the one state or the other. In fact, one who holds a Nebraska certificate but resides in Kansas comes within the terms of § 5540.

So far as procuring a permanent California certificate is concerned the following considerations are pertinent. The quoted regulation 406(b) plainly applies to final plans and specifications, which in this instance were to be submitted to the owner on or before September 1, 1954. The preliminary plans were to be completed by May 1st, but it is the final set which must be approved by the Department of Public Health ‘prior to commencement of construction’, § 406(a) of Regulations, and that was to occur not later than October 1st.

Counsel quote § 117 of Title 16, Administrative Code, a regulation of the Board of Architectural Examiners, to the effect that examinations ‘may be held in June and/or December of each year.’ They assume that such examinations are given in June and, nothing appearing to the contrary, we shall do likewise. There appears to be no element of impossibility of obtaining a certificate, or otherwise complying with the regulations, which grows out of this combination of facts: Applicant starts work in California in February, 1954; becomes a resident of this state in March; furnishes preliminary plans by May 1st; takes examination in June; completes final plans by September 1st and seeks approval of those final plans by the Board prior to commencement of construction on October 1st. This spacing of events affords ample time for appellant to take and pass the requisite examination.

Counsel's argument is based upon the assumption that the certificate must be obtained before the contract is made. In this they err. The object of the statute (forgetting § 5537 for the moment) is to prevent persons practicing architecture who have not proved to the Board of Architectural Examiners their fitness in character and skill to serve others as experts in that field. If this showing is made through procuring a certificate before the work is performed, the object of the statute has been fulfilled and the initial absence of a license does not preclude recovery for the services. The same approach should be made to Rule 406(b) of the Department of Public Health. ‘The main object of the act, so far as furnishing plans and specifications alone is involved, was to secure the erection of buildings from plans prepared by those who were sufficiently schooled in the profession to secure a license from the state board and who had complied with the state law by securing such license.’ Walter M. Ballard Corp. v. Dougherty, 106 Cal.App.2d 35, 40, 234 P.2d 745, 748. In Fitzhugh v. Mason, 2 Cal.App. 220, 223, 83 P. 282, 284, this court, considering an action for recovery of an architect's fees, said: ‘[I]n order to carry out the contract, it would have been necessary for the plaintiff to take out his certificate. But we can see no reason why it should be held that a contract made in advance of the issue of a certificate should be void.’

See, also, Gatti v. Highland Park Builders, Inc., 27 Cal.2d 687, 689, 166 P.2d 265; Lewis & Queen v. N. M. Ball Sons, 48 Cal.2d 141, 308 P.2d 713.

It fairly appears that defendant could have procured a certificate (assuming his professed qualifications) before completion of the final plans and specifications, and that such a certificate would have been sufficient to sustain a recovery on his contract. Certainly he cannot repudiate that agreement because of his lack of a certificate due to his own inaction with respect to obtaining one.

A somewhat persuasive analogy exists in the law governing real estate brokers. The statute forbids practice without a license (now § 10130, Bus. & Prof.Code), but sanctions recovery for services where a license is procured before the work is completely done. Under § 10136 the plaintiff must allege and prove possession of a license ‘at the time the alleged cause of action arose.’ See Houston v. Williams, 53 Cal.App. 267, 271, 200 P. 55; Radich v. Cernokus, 65 Cal. App. 452, 454, 224 P. 124; Wise v. Radis, 74 Cal. App. 765, 772, 242 P. 90; Brenneman v. Lane, 87 Cal.App. 414, 416, 262 P. 400; Davis v. Chipman, 210 Cal. 609, 622–623, 293 P. 40.

Petition for rehearing is denied.


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