Stinnett v. Tam ( 2011 )

DAWSON, J., Concurring and Dissenting.

I agree with the majority’s view regarding appellant Holly Stinnett’s contention that the noneconomic damages cap of Civil Code section 3333.2¹ violates her right to a jury trial under the California Constitution. We are bound to reject the argument by the California Supreme Court’s opinions in American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 376-377 [204 Cal.Rptr. 671, 683 P.2d 670], and Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 159-160 [211 Cal.Rptr. 368, 695 P.2d 665].

I dissent, however, from the majority’s rejection of appellant’s equal protection arguments, which she makes under both the federal and California Constitutions. I do so because appellant has in effect been denied the opportunity to “introduce evidence supporting [her] claim that[, under circumstances existing today, section 3333.2] is irrational . . . .” (Minnesota v. Clover Leaf Creamery Co. (1981) 449 U.S. 456, 464 [66 L.Ed.2d 659, 101 S.Ct. 715] (Minnesota), citing U.S. v. Carolene Products Co. (1938) 304 U.S. 144, 153-154 [82 L.Ed. 1234, 58 S.Ct. 778].) The trial court appears to have ruled as a matter of law against appellant’s equal protection challenge to the statute. The court labeled the challenge “a legislative matter.” And although respondents Tony Tam and Modesto Surgical Associates registered several objections to appellant’s evidence, the court failed to rule on any of those objections. It appears the court ruled without considering appellant’s evidence.

Appellant, of course, “cannot prevail [on her equal protection claim] so long as ‘it is evident from all the considerations presented . . . that the question [of a logical connection between section 3333.2 and the objective of MICRA²] is at least debatable.’ ” (Minnesota, supra, 449 U.S. at p. 464; see also In re Furnace (2010) 185 Cal.App.4th 649, 664 [110 Cal.Rptr.3d 820] [rational relationship established by showing of “logical connection”].) “The State is not compelled to verify logical assumptions with statistical evidence.” (Hughes v. Alexandria Scrap Corp. (1976) 426 U.S. 794, 812 [49 L.Ed.2d 220, 96 S.Ct. 2488].) This presumption in favor of the statute may well prove to be an insurmountable obstacle to appellant’s attack on section 3333.2. But she is nonetheless entitled to make that attack and to support it with the introduction of evidence. (Minnesota, supra, at p. 464.)

This is not to suggest that the trial court should or even may engage in an examination of legislative purpose or of the success or failure of section 3333.2 in attaining it. (Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 973 [81 Cal.Rptr.2d 93, 968 P.2d 993].) Absent a showing that a standard of review more stringent than the rational relationship test applies, the trial court would be required to determine whether—and only whether— under current circumstances, section 3333.2 is irrational. Appellant would bear “the burden of demonstrating” such irrationality. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 480 [97 Cal.Rptr.2d 334, 2 P.3d 581].)³

Respondents seek to convince this court that there is a rational relationship between section 3333.2 and MICRA’s legislative purpose. They do so in part by offering factual allegations—for example, that “family physicians in both rural and urban areas have either decreased or limited services to lower the cost of their malpractice insurance,” and “there is data supporting the conclusion that, after 1975, MICRA’s noneconomic damage cap continued to impede spiraling malpractice insurance premium charges.” In support, they cite various studies and reports. But they submitted no evidence to the trial court, and these studies and reports are not properly before us. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379 [112 Cal.Rptr.3d 853, 235 P.3d 152].) We are not a factfinding court; we are a Court of Appeal, bound to review factual determinations made by trial courts, not to take evidence or decide questions of fact in the first instance. (1 Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2010) ¶ 8:1 et seq. (rev. # 1, 2010).) Respondents have given us no basis upon which to vary from our normal role here.

The majority, I note, refrains from stating any conclusion about whether the damages cap of section 3333.2, under current circumstances, does or does not remain rationally related to legislative purpose. I join in that restraint.4 What we have before us is a one-sided factual presentation, with no ruling on evidentiary objections and no evaluation by the trial court after informed critical analysis. This is not a record upon which this court should base a ruling resolving a constitutional attack on legislative action.

For these reasons, I would remand this case to the trial court for a new hearing on the continuing validity of section 3333.2.

A petition for a rehearing was denied September 21, 2011, and appellant’s petition for review by the Supreme Court was denied November 30, 2011, S197135. Werdegar, J., and Liu, J., were of the opinion that the petition should be granted.

1 Further statutory references are to the Civil Code unless indicated.

2 MICRA is the acronym for the Medical Injury Compensation Reform Act of 1975. (See Stats. 1975, 2d Ex. Sess. 1975-1976, ch. 1, § 26.6, pp. 3975-3976.)

3 Amici curiae AARP and others assert that the damages cap of section 3333.2 has a disparate impact on the elderly, the poor, the disabled, and homemakers. Appellant, however, has presented no such evidence and has not asserted that any test more stringent than the ratjonal relationship test applies.

I also, however, join in the majority’s rejection of the argument that section 3333.2 violates equal protection because the damages cap is not indexed for inflation. The absence of indexing does not create a distinction for purposes of either federal or state equal protection analysis.