James Woo v. Jose Angel Baez ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 29, 2022
2022COA113No. 21CA0343, Woo v. Baez — Professional Liability — Actions
Against Licensed Professionals — Certificate of Review;
Constitutional Law — Fourteenth Amendment — Due Process
— Equal Protection
A division of the court of appeals addresses for the first time,
and rejects, an “as-applied” challenge to the constitutionality of the
certificate of review requirement in section 13-20-602, C.R.S. 2021.
COLORADO COURT OF APPEALS 2022COA113Court of Appeals No. 21CA0343
El Paso County District Court No. 19CV227
Honorable Thomas K. Kane, Judge
James Woo,
Plaintiff-Appellant,
v.
Jose Angel Baez, Michelle Medina, and Richard Bednarski,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE TOW
Yun and Vogt*, JJ., concur
Announced September 29, 2022
James Woo, Pro Se
Haddon, Morgan & Foreman, P.C., Jeffrey S. Pagliuca, Adam Mueller, Denver,
Colorado, for Defendants-Appellees Jose Angel Baez and Michelle Medina
Mulliken Weiner Berg & Jolivet P.C., Murray I. Weiner, Colorado Springs,
Colorado, for Defendant-Appellee Richard Bednarski
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2022.
¶1 Plaintiff, James Woo, appeals the judgment dismissing his
claims against defendants Jose Angel Baez and Michelle Medina for
lack of personal jurisdiction and his claims against defendant
Richard Bednarski due to Woo’s failure to file a certificate of review.
¶2 We reverse the dismissal as to the claims against Baez and
Medina because we agree with Woo that the district court erred by
denying substituted service. And we reverse the dismissal as to the
replevin claim against Bednarski. As to the dismissal of Woo’s
other two claims against Bednarski, Woo’s appellate contention
requires us to address, as a matter of first impression, an “as-
applied” challenge to the constitutionality of the certificate of review
requirement in section 13-20-602, C.R.S. 2021. Rejecting that
challenge, we affirm the dismissal of the remaining claims against
Bednarski.
I. Background
¶3 Woo filed a civil complaint against Baez, Medina, and
Bednarski — the lawyers who represented him in his underlying
criminal case — alleging inadequacies in how they represented
1
him.1 Specifically, Woo brought claims against Baez and Medina for
(1) fraud, (2) breach of contract, (3) willful breach of fiduciary duty,
(4) professional negligence, (5) negligent misrepresentation, and (6)
unjust enrichment. Woo brought claims against Bednarski for (1)
willful breach of fiduciary duty, (2) professional negligence, and (3)
replevin. The district court allowed Woo to file his complaint
without prepayment of the filing fee, pursuant to section
13-17.5-103, C.R.S. 2021, because it found he was indigent. Woo
was required to pay the fee in installments.
¶4 In addition, because Woo is incarcerated, the court granted his
request for the court to assist in effectuating service, subject to
Woo’s payment of the expenses over time pursuant to section
13-17.5-103. Process was delivered to the Miami-Dade Police
Department to serve Baez and Medina at a Miami business address
Woo had provided. Woo later provided a new office address for Baez
and Medina in Miami, as well as an alternate business address in
Orlando. Local law enforcement was never able to serve either Baez
or Medina at these addresses, apparently due in part to business
1 Baez and Medina are Florida lawyers who were admitted pro hac
vice in Woo’s criminal case. Bednarski was local counsel.
2
interruptions resulting from the COVID-19 pandemic and
Hurricane Eta. The El Paso County Sheriff’s Department
successfully served Bednarski.
¶5 After the case had been pending for more than a year without
service on Baez and Medina, Woo filed a motion for substituted
service pursuant to C.R.C.P. 4(f). In his motion, Woo asked the
district court to authorize service on Jeffrey Pagliuca — a Colorado
lawyer who was at that time representing Baez and Medina in a
proceeding before the Colorado Office of Attorney Regulation
Counsel that involved the same allegations of misconduct as in this
case.
¶6 The district court denied the motion, explaining:
Plaintiff claims substitute[d] service on an
attorney allegedly defending Baez and Medina
in an investigation by the Office of Regulatory
Counsel. However, the Plaintiff has failed to
show that either of these procedures is
reasonably calculated to give actual notice to
the Defendants. Minshall v. Johnston, 417
P.3d 957 (Colo. App. 2018). The claims here
are for monetary relief and not a challenge to
the conviction and sentence. The Court finds
that the State has expended considerable time
and effort to accomplish out of state service
and the Defendants could not be located.
Given the nature of the claims here, this
motion is denied.
3
¶7 Because Baez and Medina were never served, the district court
dismissed the claims against them. The district court also
dismissed the claims against Bednarski because, despite being
given an extension of time to do so, Woo never filed a certificate of
review containing an expert’s conclusion that the claims against
Bednarski did not lack substantial justification. See
§ 13-20-602(3)(a).
II. Substituted Service — Baez and Medina
¶8 We agree with Woo that the district court erred by denying his
motion for substituted service.
¶9 If, despite having exercised due diligence, a plaintiff is unable
to accomplish personal service on a defendant, they may move the
court to allow substituted service of the defendant on a different
person. See C.R.C.P. 4(f). Among other requirements, the court
must “authorize delivery to be made to the person deemed
appropriate for service” if it is
satisfied that due diligence has been used to
attempt personal service under section (e), that
further attempts to obtain service under
section (e) would be to no avail, and that the
person to whom delivery of the process is
appropriate under the circumstances and
4
reasonably calculated to give actual notice to
the party upon whom service is to be effective.
C.R.C.P. 4(f)(1).
¶ 10 The district court found, with record support, that Woo had
exercised due diligence. We agree.2 Nothing in the record, however,
indicates that serving Pagliuca would not have provided Baez and
Medina with notice of Woo’s civil lawsuit. To the contrary, serving
Pagliuca, who at that time was representing Baez and Medina in
Colorado in a closely related proceeding arising from the same
factual allegations, was reasonably calculated to give actual notice
to Baez and Medina of the civil case. See Warrender Enter., Inc. v.
Merkabah Labs, LLC, No. 1:20-cv-00155-SKC, 2020 WL 2306856,
at *2 (D. Colo. May 8, 2020) (unpublished order) (recognizing that
courts have authorized substituted service on an attorney who
represented the unserved party in other matters when the service
on the attorney was reasonably calculated to give actual notice to
2 “It is unnecessary for us to determine in this case the precise
standard of review applicable to a trial court’s determinations
underlying an order authorizing substitute service under C.R.C.P.
4(f) because we would reach the same conclusions irrespective of
which standard of review we apply: de novo, abuse of discretion, or
clear error.” Minshall v. Johnston, 2018 COA 44, ¶ 19 n.1.
5
the unserved party). The fact that the relief sought differed in the
two proceedings is immaterial. Indeed, nothing in C.R.C.P. 4(f)
suggests that substituted service is only available for certain types
of claims. Thus, we reverse the district court’s order denying the
motion for substituted service.3
¶ 11 In light of that conclusion, we further conclude that the
district court erred by granting Baez and Medina’s motion to
dismiss for lack of personal jurisdiction. We review de novo a
motion to dismiss for lack of personal jurisdiction. Align Corp. Ltd.
v. Boustred, 2017 CO 103, ¶ 8. Since the dismissal was partially
rooted in the district court’s erroneous determination that
substituted service on Pagliuca was not reasonably calculated to
give notice to Baez and Medina, it was error. Thus, we reverse the
judgment dismissing the claims against Baez and Medina.
III. Certificate of Review — Bednarski
¶ 12 We disagree with Woo that the district court erred by granting
Bednarski’s motion to dismiss given Woo’s failure to file a certificate
3 We note that Pagliuca is Baez and Medina’s counsel of record in
this appeal as well. Thus, serving him remains reasonably
calculated to provide actual notice.
6
of review as to the negligence and willful breach of contract claims.
However, we agree with Woo that the district court erred by
dismissing his replevin claim because no certificate of review is
required for that claim.
A. Standard of Review
¶ 13 We review the district court’s ruling requiring a certificate of
review for an abuse of discretion. Redden v. SCI Colo. Funeral
Servs., Inc., 38 P.3d 75, 84 (Colo. 2001). And, as noted, we review
de novo a district court’s ruling on a motion to dismiss. State ex rel.
Suthers v. Mandatory Poster Agency, Inc., 260 P.3d 9, 12 (Colo. App.
2009); see Williams v. Boyle, 72 P.3d 392, 397-402 (Colo. App.
2003).
B. Applicable Law
¶ 14 A plaintiff who asserts a professional negligence claim must,
within sixty days after commencing the action,4 file a certificate of
review certifying that they have “consulted a person who has
expertise in the area of the alleged negligent conduct,” and that the
person “has reviewed the known facts” and “has concluded that the
4The court can also determine “that a longer period is necessary for
good cause shown.” § 13-20-602(1)(a), C.R.S. 2021.
7
filing of the claim . . . does not lack substantial justification.”
§ 13-20-602(3)(a). “Lack of substantial justification” is defined as
“substantially frivolous, substantially groundless, or substantially
vexatious.” § 13-17-102(4), C.R.S. 2021. “The requirement applies
to any claim against a licensed professional that is based upon
allegations of professional negligence and that requires expert
testimony to establish a prima facie case, regardless of the formal
designation of such claim.” Williams, 72 P.3d at 397. This
requirement “should be broadly read and applied.” Id. And it
applies to pro se parties. Yadon v. Southward, 64 P.3d 909, 912
(Colo. App. 2002).
¶ 15 Further, upon the defendant’s request, the court must dismiss
a claim that requires a certificate of review if the plaintiff has not
complied with the statute. § 13-20-602(4) (“The failure to file a
certificate of review in accordance with this section shall result in
the dismissal of the complaint, counterclaim, or cross claim.”)
(emphasis added); see Miller v. Rowtech, LLC, 3 P.3d 492, 495 (Colo.
App. 2000).
8
C. The Necessity of a Certificate of Review for Woo’s Claims
against Bednarski
¶ 16 Woo brought claims against Bednarski for (1) willful breach of
fiduciary duty, (2) professional negligence, and (3) replevin (seeking
return of Woo’s property in Bednarski’s possession). Bednarski
moved to dismiss for failure to file a certificate of review. In
granting the motion, the district court said,
All of the claims against Bednarski would
require expert testimony in order to establish
the standard of professional competence that
the plaintiff alleges were violated by Bednarski.
Those claims don’t need to specifically assert
negligence in order to trigger the requirements
of section 13-20-602. That provision applies
to all claims which require “proof of
professional negligence as a predicate to
recovery, regardless of the formal designation
of such claims.” Teiken v. Reynolds, 904 P.2d
1387, 1389 (Colo. App. 1995). For instance, in
this case a claim of Breach of Fiduciary Duty
would require expert testimony to support the
claim.
1. Professional Negligence
¶ 17 Woo’s professional negligence claim alleged that Bednarski
owed a duty of care to him, pursuant to Colo. RPC 1.16(d), which
Bednarski breached after the conclusion of the representation by
not notifying Woo of court filings and by failing to advise him on
9
how to get his property back. Contrary to Woo’s contention, a
violation of an attorney’s duties under Colo. RPC 1.16(d) is not as
obviously identifiable as a failure to comply with the statute of
limitations. See Giron v. Koktavy, 124 P.3d 821, 825 (Colo. App.
2005) (holding that a certificate of review is not required when the
claim involves failure to timely file a claim, because the negligent
nature of such conduct is “so apparent as to make expert evidence
as to the standard of care and deviation therefrom unnecessary”
(quoting Allyn v. McDonald, 910 P.2d 263, 266 (Nev. 1996))).
Indeed, the preamble to the Colorado Rules of Professional Conduct
states that a “[v]iolation of a Rule should not itself give rise to a
cause of action against a lawyer nor should it create any
presumption in such a case that a legal duty has been breached.”
Colo. RPC Preamble ¶ 20.
¶ 18 Instead, this claim requires expert testimony on the duty of
care owed following the termination of the representation and how
Bednarski breached that duty of care. A lay person would not be
able to determine whether it was reasonable for Bednarski to not
advise Woo on how to retrieve his property or notify him of court
filings once the representation ended. Thus, the district court did
10
not abuse its discretion by determining that a certificate of review
was required for Woo’s professional negligence claim. See Kelton v.
Ramsey, 961 P.2d 569, 571 (Colo. App. 1998) (noting that the
plaintiff’s claims were based on the defendant’s alleged breach of
her professional duties to provide effective assistance of counsel
and thus would require expert testimony to establish the extent of
such duties).
2. Willful Breach of Fiduciary Duty
¶ 19 Woo’s willful breach of fiduciary duty claim similarly alleged
that “Bednarski had a fiduciary duty to employ that degree of care,
knowledge, skill, and judgment ordinarily possessed by members of
the legal profession in carrying out the services for their client”; a
duty of loyalty and good faith; and a duty to represent him with due
diligence. Woo alleged that Bednarski breached these duties by not
objecting to a discovery violation, failing to prepare for his trial until
one month before, agreeing to a protective order, and intentionally
depriving him of his case files and digital property. This claim
required expert testimony on the scope of Bednarski’s professional
duties and how he failed to comply with those duties because a
11
layperson would not be able to determine whether Bednarski’s
actions and inactions were reasonable.
¶ 20 Further, the fact that Woo alleges that Bednarski intentionally
deprived him of his case files and digital property does not mean
that this claim does not sound in negligence. See Williams, 72 P.3d
at 399-400 (concluding that a certificate of review was required for
a fraudulent misrepresentation claim where the plaintiff was
required to prove, among other elements, a knowing
misrepresentation of material fact, but that proof of such knowledge
required an underlying showing of a duty of care). Here, to
establish a willful violation of Bednarski’s fiduciary duty, Woo
would have to present expert testimony on the scope of that duty.
Therefore, again, the district court’s determination that a certificate
of review was required for Woo’s willful breach of fiduciary duty
claim was not an abuse of discretion. See Martinez v. Badis, 842
P.2d 245, 252 (Colo. 1992).
3. Replevin
¶ 21 However, Woo’s replevin claim, pursuant to C.R.C.P. 104, did
not allege that Bednarski acted negligently. Rather, Woo merely
alleged that Bednarski refused to surrender any of Woo’s case files
12
and materials, as well as Woo’s personal property, and that this
detention was wrongful.
¶ 22 Replevin is a possessory action in which a claimant seeks to
recover both possession of personal property that has been
wrongfully taken or detained and damages for its unlawful
detention. C.R.C.P. 104(a), (p). The “basic elements” of a replevin
claim are “the plaintiff’s ownership or right to possession, the
means by which the defendant came to possess the property, and
the detention of the property against the rights of the plaintiff.” City
& Cnty. of Denver v. Desert Truck Sales, Inc., 837 P.2d 759, 764
(Colo. 1992).
¶ 23 Contrary to Bednarski’s assertion, Woo does not have to prove
that Bednarski committed professional negligence as a prerequisite
to proving that he wrongfully retained Woo’s property; rather, Woo
will need to prove that Bednarski retained his property against his
rights. Standing alone, Woo’s replevin claim is not based on
allegations of professional negligence, nor is expert testimony
required to establish a prima facie case. A certificate of review for
this claim is accordingly not required. Therefore, the district court
13
erred by requiring Woo to file a certificate of review for this claim
and, consequently, erred by dismissing Woo’s replevin claim.
D. Constitutional Challenge to the Certificate of Review
Requirement
¶ 24 Finally, we disagree with Woo’s contention that, because he is
indigent, the district court’s dismissal of his claims against
Bednarski for failure to file a certificate of review violated his right
to due process and equal protection under the Fourteenth
Amendment to the United States Constitution and article II, section
25 of the Colorado Constitution, as well as his right to access the
courts under article II, section 6 of the Colorado Constitution.
1. As-Applied Challenge
¶ 25 Woo does not contend that section 13-20-602 is
unconstitutional on its face; therefore, his failure to comply with
C.A.R. 44 — which requires the challenging party to notify the clerk
of the supreme court in writing immediately upon initiating the
challenge to the constitutionality of a statute — does not preclude
us from addressing his as-applied challenge. See In re J.M.A., 240
P.3d 547, 549 (Colo. App. 2010) (concluding that the facial
challenge to the constitutionality of a statute was barred from
14
consideration because of failure to comply with C.A.R. 44 but
considering the as-applied challenge).
¶ 26 A plaintiff bringing an as-applied challenge contends that the
statute would be unconstitutional under the circumstances in
which they acted or propose to act. Sanger v. Dennis, 148 P.3d
404, 410 (Colo. App. 2006). “The practical effect of holding a
statute unconstitutional as applied is to prevent its future
application in a similar context, but not to render it utterly
inoperative. To achieve the latter result, the plaintiff must succeed
in challenging the statute on its face.” Id. at 411 (quoting Ada v.
Guam Soc’y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012
(1992) (Scalia, J., dissenting)).
2. Standard of Review
¶ 27 We review de novo whether a statute is constitutional as
applied. Adams v. Sagee, 2017 COA 133, ¶ 5. “Because we
presume statutes are constitutional, to succeed on an as-applied
challenge, the challenger must establish the unconstitutionality of
the statute, as applied to [them], beyond a reasonable doubt.” No
Laporte Gravel Corp. v. Bd. of Cnty. Comm’rs, 2022 COA 6M, ¶ 40.
15
3. Analysis
a. Due Process and Equal Protection
¶ 28 We first disagree with Woo’s contention that his due process
and equal protection rights under the Fourteenth Amendment to
the United States Constitution and article II, section 25 of the
Colorado Constitution were violated by enforcement of the
certificate of review requirement.
¶ 29 “[T]he United States Constitution does not expressly provide
for a right of access to courts.” See State Farm Mut. Auto. Ins. Co. v.
Broadnax, 827 P.2d 531, 534 (Colo. 1992). “The right of access to
courts cannot be viewed alone because a person necessarily
petitions the court to assert a substantive right.” City & Cnty. of
Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270,
1277 (Colo. 2010). “The fundamental rights inquiry focuses on the
substantive right that a person seeks to vindicate, not on the right
to access the court.” Id. Because Woo does not allege that his
complaint seeks to vindicate a fundamental right, we do not
address whether it does. See Farmer v. Raemisch, 2014 COA 3,
¶ 12 n.3 (declining to address whether complaint sought vindication
of a fundamental interest where plaintiff did not argue that it did).
16
¶ 30 And “neither prisoners nor indigents constitute a suspect class
for equal protection analysis purposes.” Collins v. Jaquez, 15 P.3d
299, 303 (Colo. App. 2000).
¶ 31 Because no fundamental right is at issue and no suspect class
is involved, we apply the rational basis test and will uphold the
statute if it is rationally related to a legitimate state interest. See id.
at 304.
¶ 32 The purpose of section 13-20-602 is “to provide an initial
screening procedure for lawsuits founded upon professional
negligence in an effort to eliminate, at the outset, meritless claims”
and “the expense associated with” such claims. State v. Nieto, 993
P.2d 493, 503 (Colo. 2000). As our supreme court noted, the bill
sponsor described the legislation as “a relatively straightforward
effort to cut down on frivolous lawsuits.” Id. (quoting Hearing on
H.B. 1201 before the H. Judiciary Comm., 56th Gen. Assemb., 1st
Reg. Sess. (Mar. 3, 1987) (statement of Representative David Bath,
sponsor)). In other words, the aim of the statute is “to try to make
an early determination in a case that the case has merit or if the
case is frivolous, and build it into the procedure.” Id. (quoting
Hearing on H.B. 1201 before the H. Judiciary Comm., 56th Gen.
17
Assemb., 1st Reg. Sess. (Mar. 3, 1987) (statement of Neil Hillyard,
President, Colorado Trial Lawyers Association)).5
¶ 33 The General Assembly’s stated intent to limit lawsuits that
impose an undue burden on the state judicial system because they
are frivolous is a legitimate state interest. Requiring a plaintiff who
brings claims based on professional negligence to find an expert to
substantiate those claims early in the case is rationally related to
furthering that interest. Accordingly, the certificate of review
requirement does not violate constitutional guarantees of due
process or equal protection.
b. Access to Courts Under the Colorado Constitution
¶ 34 We also disagree with Woo that the certificate of review
requirement violates his fundamental right of access to courts
guaranteed by article II, section 6 of the Colorado Constitution.
¶ 35 Article II, section 6 of the Colorado Constitution provides:
“Courts of justice shall be open to every person, and a speedy
remedy afforded for every injury to person, property or character;
5 The supreme court described Mr. Hillyard as “a key drafter of the
language of the bill.” State v. Nieto, 993 P.2d 493, 503 (Colo. 2000).
18
and right and justice should be administered without sale, denial or
delay.”
¶ 36 Colorado has “diverged from the federal constitutional model
by creating an express right of access to courts independent of
constitutional due process guarantees.” Broadnax, 827 P.2d at
535. Article II, section 6 of the Colorado Constitution protects
initial access to courts. Thus, when a right accrues under law, the
courts must be available to effectuate that right. See State v.
DeFoor, 824 P.2d 783 (Colo. 1992).
¶ 37 “In a proper case . . . the right of free access to our courts
must yield to the rights of others and the efficient administration of
justice.” People v. Spencer, 185 Colo. 377, 381-82, 524 P.2d 1084,
1086 (1974) (enjoining a pro se plaintiff who filed numerous
unfounded lawsuits from proceeding pro se as a plaintiff in
Colorado courts). And “[t]he right of equal access to courts does not
necessarily mean that a litigant has the right to engage in cost-free
litigation.” City & Cnty. of Broomfield, 239 P.3d at 1278.
¶ 38 “Generally, a burden on a party’s right of access to the courts
will be upheld as long as it is reasonable.” Firelock Inc. v. Dist. Ct.,
19
776 P.2d 1090, 1096 (Colo. 1989) (collecting cases demonstrating
the extent of permissible burdens on the right of access to courts).
¶ 39 The certificate of review requirement is not unreasonable
because Woo will inevitably be required to provide expert testimony
to establish the standard of care that Bednarski owed to him and
how Bednarski breached it. Without such testimony, Woo’s case
would fail. The certificate of review statute merely requires a
plaintiff to establish at an early stage in the litigation that at least
one professional believes that the claims based on professional
negligence do not lack substantial justification. Consequently,
although the statute imposes an additional burden on the plaintiff
in a case involving a licensed professional, it does not create an
insurmountable barrier to a litigant whose case does not lack
substantial justification. And it promotes the goal of efficient
administration of justice.
¶ 40 Further, a district “court cannot waive costs payable to private
parties.” Frazier v. Carter, 166 P.3d 193, 196 (Colo. App. 2007);
Chief Justice Directive 98-01, Costs for Indigent Persons in Civil
Matters, § III (amended Mar. 2021) (providing that a court may not
waive costs for indigent persons in civil matters for an obligation to
20
a person or entity other than the State of Colorado). Nor does a
certificate of review necessarily require a plaintiff to pay an expert
and/or attorney. As Woo acknowledges in his district court
motions, he could have found a pro bono attorney or entered into a
contingency fee relationship with one. And he could have sought —
and, in fact, did seek — a pro bono expert as well.
c. Woo’s Efforts to Obtain a Certificate of Review
¶ 41 Woo also failed to establish that he was unable to file a
certificate of review solely because he was indigent (or incarcerated).
Having previously been granted an extension of time, it was only
after the action had been pending for over seven months that the
district court dismissed the claims against Bednarski. By allowing
Woo an extension of time to file the certificate of review, the district
court assured Woo’s right to meaningful court access was upheld.
See Sherman v. Klenke, No. 11-cv-03091-PAB-CBS, 2014 WL
12939925, at *4 (D. Colo. Feb. 20, 2014) (unpublished opinion)
(finding that the certificate of review requirement was not
unconstitutional as applied where the “plaintiff has been afforded
far more than the statutorily mandated sixty days to file a
Certificate of Review” and had received multiple extensions of time).
21
¶ 42 Woo had also apparently been able to identify and
communicate with potential attorneys and experts regarding
certificates of review. See id. (noting that the “plaintiff does not
argue, and there is no indication in the record, that his ability to
contact lawyers and physicians was unconstitutionally restricted or
frustrated”). According to Woo’s motions, one month after he filed
the complaint, he began contacting attorneys and enlisted the help
of his sister to do so as well. After no attorney would represent him
pro bono, Woo sought representation on a contingency fee basis,
which “encompass[ed] a search for an expert to complete a
certificate of review” should it become necessary. Woo also said
that he “search[ed] for an expert to fulfill [the] certificate of review
[requirement], as it was a more realistic approach than soliciting
attorneys to do a certificate of review pro bono.”
¶ 43 Woo’s sister also contacted attorneys within three to four
months after the complaint was filed. And Woo had her specifically
contact attorneys about the certificate of review. See id. (noting
that there was no “indication plaintiff was limited to contacting only
those professionals listed in a prison law library” but rather
“plaintiff ‘personally and with the help of family members’ contacted
22
30 attorneys and 25 physicians”). Although Woo noted that many
attorneys did not respond, others declined to assist him without
inquiring into the facts of the case or asking for more information.
See id. (rejecting the plaintiff’s argument that his constitutional
injury stemmed from attorneys’ and doctors’ unwillingness to work
with incarcerated, pro se litigants).
¶ 44 In sum, Woo did not show that he has been unable to find an
expert to opine that his claims did not lack substantial justification
solely because he is indigent. In fact, the record shows that Woo
and his sister were able to contact multiple attorneys and experts.
Finally, we may not speculate that Woo was turned down in his
pursuit of expert certification solely because he is indigent; he may
have been turned down for other reasons, including the potential
expert’s opinion that his claim lacked substantial justification.
¶ 45 Accordingly, we conclude that the certificate of review
requirement is not unconstitutional as applied.
IV. Disposition
¶ 46 We reverse the district court’s judgment dismissing the claims
against Baez and Medina and remand with instructions to authorize
substituted service. We reverse the district court’s judgment
23
dismissing the replevin claim against Bednarski and remand for
further proceedings on that claim. We affirm the judgment
dismissing the remaining claims against Bednarski.
JUDGE YUN and JUDGE VOGT concur.
24