James Woo v. Jose Angel Baez

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

2022COA113

No. 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 2022COA113

Court 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