Dominguez v. Bonta ( 2023 )

Filed 12/19/22; Modified and Certified for Pub.1/6/23 (order attached)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TRACY DOMINGUEZ et al.,
F082053 & F082208
Plaintiffs and Appellants,
(Super. Ct. No. BVC-20-101229)
v.
ROB BONTA, as Attorney General etc., et al., OPINION
Defendants and Respondents.
APPEALS from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Carpenter, Zuckerman & Rowley; Carpenter & Zuckerman, Robert J. Ounjian;
and Nicholas C. Rowley for Plaintiffs and Appellants.
Rob Bonta, Attorney General, Thomas S. Patterson, Assistant Attorney General,
Anthony R. Hakl and Jerry T. Yen, Deputy Attorneys General, for Defendant and
Respondent Rob Bonta as Attorney General.
Vanessa L. Holton, Robert G. Retana and Sean T. Strauss for Defendant and
Respondent Ruben Duran as Chairman of the Board of Trustees of the State Bar of
California.
Tucker Ellis, Traci L. Shafroth and Aggie B. Lee for California Medical
Association, California Dental Association, California Hospital Association and the
American Medical Association as Amici Curiae on behalf of Defendants and
Respondents.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson and Cassidy C.
Davenport for Anthony Allen, M.D., Bay Imaging Consultants Medical Group, Robert
Binder, M.D., Cedars-Sinai Medical Center, Justin Davis, P.A., East Bay Neurospine,
Kathryn Klima, M.D., Thomas J. Mampalam, M.D., Stuart Martin, M.D., Kathryn
Sharma, M.D., Sutter Bay Hospitals, doing business as Alta Bates Summit Medical
Center, Sara Vaughn, M.D., and Hans C. Yu, D.O., as Amici Curiae on behalf of
Defendants and Respondents
-ooOoo-
Tracy Dominguez, Ruben Xavier DeLeon and Carpenter, Zuckerman & Rowley
(CZR) (collectively, plaintiffs) appeal from a judgment of dismissal after the trial court
sustained, without leave to amend, a demurrer brought by Rob Bonta as the Attorney
General of the State of California (the Attorney General), and joined by Ruben Duran, 1
Chairman of the Board of Trustees of the State Bar of California (the Chairman)
(collectively, demurring defendants). 2
We affirm the judgment of dismissal.
1The lawsuit originally named Xavier Becerra in his capacity as the Attorney General of
the State of California and Alan Steinbrecher in his capacity as Chairman of the Board of
Trustees of the State Bar of California. We substitute the names of the current officeholders.
(Cal. Style Manual (4th ed. 2000) § 6:19.)
2Plaintiffs filed two notices of appeal in connection with the matter. The first notice of
appeal was filed on November 17, 2020 (case No. F082053) and the second notice of appeal was
filed on December 21, 2020 (case No. F082208). Substantively, the notices of appeal are
identical. On June 23, 2021, plaintiffs moved this court to consolidate the appeals. On July 28,
2021, this court granted the motion and designated case No. F082053 as the lead case.
2.
FACTUAL AND PROCEDURAL BACKGROUND
On May 26, 2020, plaintiffs filed a complaint for declaratory and injunctive relief
against the Attorney General, the Chairman, Mercy Hospital of Bakersfield (hospital),
Arthur Park, M.D. (Dr. Park), and Hans C. Yu, D.O. (Dr. Yu). (Hospital, Dr. Park, and
Dr. Yu are referred to collectively as healthcare defendants.) The facts and plaintiffs’
contentions, as alleged in the complaint, follow.
Allegations in Appellant’s Complaint
Healthcare defendants are the defendants in a separate medical malpractice case
(medical malpractice case) brought by plaintiffs Tracy Dominguez and Ruben Xavier
DeLeon (heirs) in which healthcare defendants are alleged to have provided negligent
medical care to Demi Ruben Dominguez and Malakhi Ruben DeLeon (collectively,
decedents) resulting in decedents’ deaths. 3 Heirs are alleged to be the wrongful death
heirs of decedents. Heirs have suffered damages as a result of the alleged wrongful death
of decedents, which “are primarily, if not entirely, noneconomic losses.” CZR is a law
firm that “exclusively represents injury victims in tort matters on a contingency basis.” If
successful on appeal of this matter, CZR seeks to represent heirs in the medical
malpractice case.
In this action, plaintiffs challenge the constitutionality of two California statutes—
Civil Code section 3333.2, which caps the amount of damages a plaintiff may recoup for
noneconomic losses at $250,000 (Civ. Code, § 3333.2, subd. (b)); and Business and
Professions Code section 6146, which sets limits on the amount of contingency fees a law
firm may charge in representing a plaintiff in a professional negligence action against a
health care provider. (Civ. Code, § 3333.2 and Bus. & Prof. Code, § 6146 are sometimes
referred to collectively as the challenged statutes.)
3Dominguez v. Yu (Super. Ct. Kern County, 2019, No. BCV-19-102255).
3.
Heirs “sought to retain the legal services of CZR to represent [them] in the
medical malpractice action against [healthcare defendants].” However, CZR contends it
is not economically feasible for it to represent heirs on a contingency basis given the
limitations on recovery for noneconomic losses under Civil Code section 3333.2 and the
limitations on contingency fee arrangements under Business and Professions Code
section 6146. “CZR is ready, willing, and able to represent [heirs] if it is permitted to
charge the contingency fee it ordinarily charges in personal injury matters and if the
$250,000 cap on noneconomic damages is lifted.”
Heirs desire to retain CZR but “cannot waive the statutory fee restrictions set forth
above and CZR would be subject to discipline by the State Bar” if it accepted the
engagement in violation of Business and Professions Code section 6146. The complaint
alleges “the limitation on noneconomic damages … has deprived [heirs] of the ability to
obtain legal redress for the medical negligence suffered to fully prosecute their action.”
Plaintiffs allege Civil Code section 3333.2’s cap on noneconomic damages was
“enacted in 1975 and has not been adjusted—for inflation or otherwise—in the
intervening nearly 45 years.” Plaintiffs allege “CZR will spend at least $200,000 in costs
to prosecute” heirs’ claims against healthcare defendants; and because “the limit on
contingent fees applies to [a] client’s net recovery,” CZR would only recover “a mere
$20,000 in fees” on a maximum award of $250,000 for noneconomic damages.
Heirs “are currently paying their counsel an hourly rate to prosecute the
underlying medical malpractice action.” However, heirs “are of limited means and
cannot afford to fully prosecute the action by paying their counsel on an hourly basis.”
Heirs “can only afford to be represented on a contingency fee basis.”
Plaintiffs allege that whereas “medical malpractice plaintiffs … have caps
imposed on their litigation expenditures,” medical malpractice defendants (for various
reasons) are incentivized to “incur costs approaching or even exceeding the $250,000
maximum judgment knowing that the plaintiffs will be forced to spend more than the
4.
plaintiffs can legally recover and will therefore be forced to abandon an otherwise
meritorious action.” Plaintiffs allege that medical malpractice plaintiffs “necessarily
need to match the defendants’ experts at least one-for-one at trial” and that “[b]y
requiring the plaintiffs and [the] defendant to be on different financial footing, the
[challenged statutes] require the plaintiff[s], at least in terms of expert witnesses, to only
be able to bring a knife to the defendant’s gunfight.”
Plaintiffs further allege the concerns that led to passage of the challenged statutes
(i.e., increasing insurance rates and fewer insurance companies willing to write medical
malpractice insurance) are no longer of sufficient concern to justify the continued
application of the statutes. They allege, among other things, that with the passage of
Proposition 103 in 1988 insurance companies can “earn a reasonable return”; “premium
increases have been moderate”; insurers “have been highly profitable”; there is a
competitive medical malpractice insurance market; and “a large portion of payments
made by insurance companies … are to insurance company defense attorneys and …
defense costs.” Plaintiffs allege “radically rising medical malpractice insurance rates …
is not reasonably foreseeable.”
In their complaint, plaintiffs assert various claims of unconstitutionality with
regard to the challenged statutes. We discuss those claims in more detail in a subsequent
part of this opinion.
Relevant Procedural Background Following the Filing of the Complaint
On August 25, 2020, the Attorney General demurred to plaintiffs’ complaint and
each cause of action therein on the grounds that plaintiffs “do not have standing to assert”
any of the alleged causes of action, and each cause of action “fails to state facts sufficient
to constitute a cause of action.” On August 26, 2020, the Chairman joined in the
Attorney General’s notice of demurrer and demurrer.
On September 9, 2020, plaintiffs opposed the Attorney General’s demurrer.
5.
On September 14, 2020, plaintiffs filed a request that the complaint be dismissed
with prejudice as to hospital only. The clerk of the court entered the dismissal as
requested.
On September 15, 2020, the Attorney General filed his reply in support of his
demurrer to plaintiffs’ complaint.
On September 16, 2020, the Attorney General filed a notice of four related cases.
According to the notice, CZR was handling three of the related cases and was making
“identical arguments challenging the constitutionality of the [challenged statutes].” 4 The
fourth related case, among other things, purportedly “[arose] from the same or
substantially identical transactions, incidents, or events requiring the determination of the
same or substantially identical questions of law ….” 5
Also on September 16, 2020, plaintiffs filed a request that the complaint be
dismissed without prejudice as to Dr. Park only. The clerk of the court entered the
dismissal as requested.
On September 22, 2020, the demurrer came on regularly for hearing. All parties
appeared through counsel. A tentative ruling was announced, the parties argued the
matter, and the matter was deemed submitted.
On September 29, 2020, the trial court issued its ruling on the demurrer. It
accepted the Chairman’s joinder and sustained the demurrer, without leave to amend,
finding that plaintiffs “are without standing to pursue the claims alleged and have failed
to adequately allege[] facts to support the claims they purport to allege.” The court
indicated the complaint “does not state nor can it state a justiciable controversy as to [the]
demurring Defendants.” In its ruling, the trial court explained:
4Luo v. Becerra (Super. Ct. Alameda County, No. RG20057577); Mosley v. Becerra
(Super. Ct. Los Angeles County, No. 20STCV12669); and Johnson v. Becerra (Super. Ct. Los
Angeles County, No. 20STCV12766).
5Miranda v. Becerra (Super. Ct. Los Angeles County, No. 20STCV19825).
6.
“As to standing, none of the Plaintiffs alleges any injury conveying an
ability to pursue their claims. This is apparent on the face of the Complaint
and Plaintiffs concede in their opposition that the injury at issue has not yet
occurred, referring to it as an ‘impending injury should the Court deny the
declaratory relief sought.’ … Beyond this threshold problem, whether Civil
Code section 3333.2 … and Business & Professions Code section 6146 are
as flawed as Plaintiffs allege has been litigated and determined contrary to
Plaintiffs’ position on several occasions by the California Supreme Court.
Plaintiffs’ Complaint seeks relief that is more appropriately sought before
the Legislature.”
The trial court further noted it was plaintiffs’ burden to demonstrate how their
complaint could be amended to correct any defects and that plaintiffs “fail[ed] to discuss
how they can amend to overcome the demurrer.” The court directed the Attorney
General to prepare an order conforming to the court’s ruling.
On October 14, 2020, the trial court issued its order and judgment sustaining the
Attorney General’s demurrer without leave to amend and dismissing, with prejudice, the
Attorney General and the Chairman from the action (judgment).
On November 17, 2020, notice of entry of the judgment was served and filed.
Also on November 17, 2020, plaintiffs filed a timely notice of appeal from the judgment.
On December 21, 2020, plaintiffs filed a substantively identical (and timely) notice of
appeal from the judgment. The appeals have been consolidated. (See fn. 2, ante.) Two
amicus curiae briefs were filed in support of demurring defendants’ position. 6
6An amicus curiae brief was filed on behalf of the California Medical Association, the
California Dental Association, the California Hospital Association, and the American Medical
Association. A separate amicus curiae brief was filed on behalf of Anthony Allen, M.D., Bay
Imaging Consultants Medical Group, Robert Binder, M.D., Cedars-Sinai Medical Center, Justin
Davis, P.A., East Bay Neurospine, Kathryn Klima, M.D., Thomas J. Mampalam, M.D., Kathryn
Sharma, M.D., Sutter Bay Hospitals doing business as Alta Bates Summit Medical Center, Sara
Vaughn, M.D., and healthcare defendant Dr. Yu.
7.
DISCUSSION
I. Standard of Review
“‘We review the ruling sustaining the demurrer de novo, exercising independent
judgment as to whether the complaint states a cause of action as a matter of law.’
[Citation.] ‘“[W]e give the complaint a reasonable interpretation, reading it as a whole
and its parts in their context.”’ [Citation.] ‘When conducting this independent review,
appellate courts “treat the demurrer as admitting all material facts properly pleaded, but
do not assume the truth of contentions, deductions or conclusions of law.”’” (Kahan v.
City of Richmond (2019) 35 Cal.App.5th 721, 730.) Similarly, we “‘may not consider
conclusions of fact …, opinions, speculation or allegations which are contrary either to
law or to judicially noticed facts’” (Monterey Coastkeeper v. Central Coast Regional
Water Quality Control Bd., etc. (2022) 76 Cal.App.5th 1, 16.) We also do not accept as
true “‘adjectival descriptions’ … or ‘unsupported speculation.’” (Doe v. Roman Catholic
Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 960.) We may, however,
“consider matters subject to judicial notice ….” (Collins v. Thurmond (2019) 41
Cal.App.5th 879, 891.) 7
II. Plaintiffs’ Contentions
Plaintiffs allege one or both of the challenged statutes, separately or in tandem, (1)
impair heirs’ “right to petition the government for redress of grievances” under the First
7Plaintiffs do not contend on appeal that the trial court’s decision to deny them leave to
amend was error. Consequently, we do not consider whether plaintiffs could amend their
complaint to state a valid cause of action. (Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852 [“It is not [an appellate court’s] place to construct theories or arguments to
undermine the judgment and defeat the presumption of correctness”].)
8.
Amendment 8 and Fourteenth Amendment 9 of the United States Constitution and article I,
section 3 of the California Constitution; 10 (2) constitute “a government taking [of]
private property without just compensation” in violation of the Fifth Amendment 11 and
Fourteenth Amendment of the United States Constitution and article I, section 19 of the
California Constitution; 12 (3) ”violate the equal protection provisions” provided by the
Fourteenth Amendment to the United States Constitution and article I, section 7 13 and
article IV, section 16 14 of the California Constitution (as stated in two separate claims by
plaintiffs); (4) “violate the due process provisions” (as stated in two separate claims by
plaintiffs) and the “right to petition the government for redress of grievances” under the
Fourteenth Amendment to the United States Constitution and article I, section 7,
8The First Amendment provides: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” (U.S. Const., Amend. I.)
9The Fourteenth Amendment provides, in relevant part: “No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const.,
Amend. XIV, § 1.)
10Article I, section 3 of the California Constitution provides, in part: “The people have
the right to instruct their representatives, petition government for redress of grievances, and
assemble freely to consult for the common good.” (Cal. Const., art. I, § 3, subd. (a).)
11The Fifth Amendment provides, in relevant part: “No person shall be … deprived of
life, liberty, or property, without due process of law; nor shall private property be taken for
public use, without just compensation.” (U.S. Const., Amend. V.)
12Article I, section 19 of the California Constitution provides, in relevant part: “Private
property may be taken or damaged for a public use and only when just compensation, ascertained
by a jury unless waived, has first been paid to, or into court for, the owner….” (Cal. Const., art.
I, § 19, subd. (a).)
13Article I, section 7, subdivision (a) of the California Constitution provides, in relevant
part: “A person may not be deprived of life, liberty, or property without due process of law or
denied equal protection of the laws ….” (Cal. Const., art. I, § 7, subd. (a).)
14Article IV, section 16 of the California Constitution provides, in relevant part: “All
laws of a general nature have uniform operation.” (Cal. Const., art. IV, § 16, subd. (a).)
9.
subdivision (a) of the California Constitution; 15; and (5) deprive heirs of their “right to a
jury trial as protected by” article I, section 16 of the California Constitution. 16 Based on
the above allegations, plaintiffs seek a judicial declaration that “Civil Code § 3333.2’s
cap on noneconomic damages separately and, especially when coupled with Business and
Professions Code § 6146’s restriction on attorneys’ fees, violate the U.S. and California
Constitutions.”
III. Plaintiffs’ Request for Judicial Notice
On August 19, 2021, plaintiffs requested this court take judicial notice of certain
documents filed in the medical malpractice case, namely (1) heirs’ notice of motion and
motion to continue a hearing on a motion for summary judgment brought by Dr. Yu or,
alternatively, to stay the medical malpractice case pending resolution of this appeal (stay
motion), including a memorandum of points and authorities, and declarations from a CZR
attorney and heirs’ attorney in the medical malpractice case; (2) Dr. Yu’s opposition to
the stay motion; (3) heirs’ reply brief in support of the stay motion including additional
declarations from a CZR attorney, heirs’ attorney in the medical malpractice case, and
heirs; and (4) the order on the stay motion (collectively, medical malpractice filings).
Plaintiffs also requested we take judicial notice of an “Accusation” filed before the
Medical Board of California, Department of Consumer Affairs (Medical Board).
(Unnecessary capitalization omitted.) We deferred ruling on plaintiffs’ request pending
consideration of the appeal on the merits.
Plaintiffs contend the medical malpractice filings are relevant to the appeal
because they demonstrate the alleged inability of heirs to afford counsel to represent them
15Plaintiffscontend “the procedural component of the due process clause ensures a fair
adjudicatory process before a person is deprived of life, liberty, or property,” citing Mullane v.
Central Hanover Tr. Co. (1950) 339 U.S. 306, 313.)
16Article I, section 16 of the California Constitution provides, in part: “Trial by jury is an
inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render
a verdict….” (Cal. Const., art. I, § 16.)
10.
in the medical malpractice case, and heirs “will lose a motion for summary judgment and
be deprived of a determination on the merits.” As for the “Accusation” before the
Medical Board, plaintiffs contend it is relevant “to show [heirs] have a meritorious case
and their inability to retain counsel is not due to the weakness of their case, but the
restrictions of MICRA [Medical Injury Compensation Reform Act of 1975].”
“Courts can take judicial notice of the existence, content and authenticity of public
records and other specified documents, but do not take judicial notice of the truth of the
factual matters asserted in those documents.” (Glaski v. Bank of America (2013) 218
Cal.App.4th 1079, 1090, italics added (Glaski).) Plaintiffs do not contend that the mere
existence, content, or authenticity of the medical malpractice filings are relevant to their
challenge of the trial court’s disposition of demurring defendants’ demurrer. Rather, they
seek to have this court judicially notice the truth of averments made in the various
declarations and other medical malpractice filings, including findings made by the trial
court in the medical malpractice case. This we cannot do. (Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1567–1568 [holding it improper to take judicial notice of the truth of a
court’s factual findings where principles of res judicata or collateral estoppel do not
apply]; Glaski, at p. 1090.) Accordingly, we decline to take judicial notice of the medical
malpractice filings.
As for the “Accusation” filed before the Medical Board, nothing in the Accusation
suggests there has been a finding on the merits of heirs’ case or any related allegation
contained in the Accusation. The mere existence, content and authenticity of the
Accusation does not enable this court to determine the truth of allegations therein.
(Glaski, supra, 218 Cal.App.4th at p. 1090.) Accordingly, we decline plaintiffs’ request
to judicially notice this document.
Plaintiffs’ request for judicial notice is denied.
11.
IV. The Medical Injury Compensation Reform Act (MICRA)
The challenged statutes (i.e., Civ. Code, § 3333.2 and Bus. & Prof. Code, § 6146)
were enacted in 1975 as part of MICRA. (Roa v. Lodi Medical Group, Inc. (1985) 37
Cal.3d 920, 923 (Roa).)
A. The Legislature’s Rationale for Enacting MICRA
In enacting MICRA, “[t]he Legislature found that ‘there is a major health care
crisis in the State of California attributable to skyrocketing malpractice premium costs
and resulting in a potential breakdown of the health delivery system, severe hardships for
the medically indigent, a denial of access for the economically marginal, and depletion of
physicians such as to substantially worsen the quality of health care available to citizens
of this state. The Legislature, acting within the scope of its police powers, finds the
statutory remedy herein provided is intended to provide an adequate and reasonable
remedy within the limits of what the foregoing public health and safety considerations
permit now and into the foreseeable future.’” (6 Witkin, Summary of Cal. Law (11th ed.
2017) Torts, § 1073, pp. 252–253, quoting Stats. 1975, 2d Ex. Sess., ch. 2, § 1, subd. (b).)
“In broad outline, the act (1) attempted to reduce the incidence and severity of
medical malpractice injuries by strengthening governmental oversight of the education,
licensing and discipline of physicians and health care providers, (2) sought to curtail
unwarranted insurance premium increases by authorizing alternative insurance coverage
programs and by establishing new procedures to review substantial rate increases, and (3)
attempted to reduce the cost and increase the efficiency of medical malpractice litigation
by revising a number of legal rules applicable to such litigation.” (American Bank &
Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 363–364 (American Bank).)
“In the Legislature’s view, ‘[t]he continuing availability of adequate medical care
depends directly on the availability of adequate insurance coverage, which in turn
operates as a function of costs associated with medical malpractice litigation.’ [Citation.]
‘Accordingly, MICRA includes a variety of provisions all of which are calculated to
12.
reduce the cost of insurance by limiting the amount and timing of recovery in cases of
professional negligence.’” (Chan v. Curran (2015) 237 Cal.App.4th 601, 607 (Chan).)
B. Civil Code Section 3333.2
“‘[Civil Code s]ection 3333.2 constitutes a key component of [MICRA].’” (Chan,
supra, 237 Cal.App.4th at p. 608.) It provides, in relevant part: “(a) In any action for
injury against a health care provider based on professional negligence, the injured
plaintiff shall be entitled to recover noneconomic losses to compensate for pain,
suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary
damage. [¶] (b) In no action shall the amount of damages for noneconomic losses exceed
two hundred fifty thousand dollars ($250,000).” (Civ. Code, § 3333.2, subds. (a) & (b).)
Amici curiae correctly point out that “the Legislature has considered and rejected
modifications to [Civil Code s]ection 3333.2 on a least three occasions”—in the late
1990’s to increase the cap on noneconomic damages to $700,000. (Assem. Bill No. 250
(1997–1998 Reg. Sess.)); two years later “to enact a bill that would have adjusted the
limitation based on the Consumer Price Index.” (Assem. Bill No. 1380 (1999–2000 Reg.
Sess.)); and, in 2014, “the Legislature declined to advance a bill meant to address the
$250,000 limitation by stating an intent ‘to bring interested parties together to develop a
legislative solution to issues surrounding medical malpractice injury compensation.’”
(Sen. Bill No. 1429 (2013–2014 Reg. Sess.)
Also, “[i]n the November 4, 2014, general election, California voters defeated
Proposition 46, which, in part, would have modified MICRA’s noneconomic damages
limitation to reflect inflation, raising the cap to approximately $1.1 million as of
January 1, 2015, and calling for annual adjustments thereafter.” (Chan, supra, 237
Cal.App.4th at p. 607, fn. 2.)
13.
C. Business and Professions Code Section 6146
Business and Professions Code section 6146, the other challenged statute,
provides, in relevant part: “(a) An attorney shall not contract for or collect a contingency
fee for representing any person seeking damages in connection with an action for injury
or damage against a health care provider based upon such person’s alleged professional
negligence in excess of the following limits: [¶] (1) Forty percent of the first fifty
thousand dollars ($50,000) recovered. [¶] (2) Thirty-three and one-third percent of the
next fifty thousand dollars ($50,000) recovered. [¶] (3) Twenty-five percent of the next
five hundred thousand dollars ($500,000) recovered. [¶] (4) Fifteen percent of any
amount on which the recovery exceeds six hundred thousand dollars ($600,000).” (Bus.
& Prof. Code, § 6146, subd. (a).)
D. Select Prior Decisions Addressing the Constitutionality of the
Challenged Statutes and Other Statutes Enacted as Part of MICRA
1. California Supreme Court Case Law
a. American Bank
In one of the earliest MICRA-related cases decided by the California Supreme
Court, American Bank, supra, 36 Cal.3d 359, the court considered a challenge to Code of
Civil Procedure section 667.7, a provision in MICRA allowing an award of future
damages to be paid in periodic installments rather than as a lump sum. (American Bank,
at pp. 363–364.) The plaintiff challenged the constitutionality of the statute, arguing it
“violate[d] the state and federal constitutional guarantees of due process, equal
protection, and the right to jury trial.” (Id. at p. 364.) The court rejected each of these
challenges. 17 (Id. at pp. 368–370, 373–374, 377.)
17With regard to the jury trial right claim, the American Bank court acknowledged
ambiguity in the statute could lead to constitutional infirmity but interpreted the statute in a
manner that “avoid[ed] a potential conflict with the right to trial by jury.” (American Bank,
supra, 36 Cal.3d at p. 364; see id. at pp. 376–377.)
14.
With regard to the plaintiff’s due process challenge, the American Bank court
wrote: “It is well established that a plaintiff has no vested property right in a particular
measure of damages, and that the Legislature possesses broad authority to modify the
scope and nature of such damages.” (American Bank, supra, 36 Cal.3d at p. 368.) “So
long as the measure is rationally related to a legitimate state interest, policy
determinations as to the need for, and desirability of, the enactment are for the
Legislature.” (Id. at 369.)
In rejecting the plaintiff’s equal protection claims, the American Bank court
referred to the medical malpractice insurance crisis that had arisen. (American Bank,
supra, 36 Cal.3d at p. 371.) The court noted “a periodic payment of damages procedure
could reasonably be applied across the entire tort spectrum,” and, although the statute
does treat medical malpractice defendants differently from other defendants, “the equal
protection clause does not prohibit a Legislature from implementing a reform measure
‘one step at a time’ [citation], or prevent it ‘from striking the evil where it is felt most.’”
(Ibid.) The court also rejected the plaintiff’s attempts to “challenge the factual accuracy”
of the Legislature’s rationale for enacting the provision. (Id. at pp. 371–372.) The court
wrote: “It is not the judiciary’s function … to reweigh the ‘legislative facts’ underlying a
legislative enactment.” (Id. at p. 372.) “Finally, and most fundamentally,” the court
wrote, “the constitutionality of a measure under the equal protection clause does not
depend on a court’s assessment of the empirical success or failure of the measure’s
provisions.” (Id. at p. 374.) “‘Whether in fact the Act will promote [the legislative
objectives] is not the question: the Equal Protection Clause is satisfied by our conclusion
that the [state] Legislature could rationally have decided that [it] … might [do so] ….’”
(Ibid.) The court held “the provisions of [Code of Civil Procedure] section 667.7 are
rationally related to [the Legislature’s] objective” of “reduc[ing] insurance costs in the
medical malpractice area.” (Id. at p. 373.)
15.
b. Barme
The same year American Bank was decided, our state high court decided Barme v.
Wood (1984) 37 Cal.3d 174 (Barme), a case in which the court “face[d] a somewhat
similar challenge to another provision of MICRA, Civil Code section 3333.1, subdivision
(b) ….” (Id. at p. 177.) That provision provided “‘[n]o source of collateral benefits
introduced pursuant to subdivision (a)[ 18] shall recover any amount against the plaintiff
nor shall it be subrogated to the rights of a plaintiff against a defendant.’” (Id. at p. 180.)
In Barme, a police officer “suffered a heart attack while on duty” and “sustained
brain damage” allegedly due to the professional negligence of his health care providers.
(Barme, supra, 37 Cal.3d at p. 177.) The officer and his wife filed suit against the
officer’s health care providers. (Ibid.) The City of Huntington Beach, desiring to recoup
monies it expended “in providing workers’ compensation benefits” to the officer pursuant
to Labor Code section 3852, intervened in the action. (Ibid.) Thereafter, the defendants
successfully moved for summary judgment against the city on the ground that recovery
was barred under Civil Code section 3333.1, subdivision (b). (Barme, at p. 178.) The
city appealed, contending said provision “violat[ed] its rights to both due process and
equal protection.” (Id. at p. 180.) The California Supreme Court disagreed, holding the
statute did not violate the city’s due process rights because it was “rationally related to
the objective of reducing the cost of medical malpractice insurance”—a legitimate public
interest. (Ibid.)
18Subdivision (a) of Civil Code section 3333.1 provides: “In the event the defendant so
elects, in an action for personal injury against a health care provider based upon professional
negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a
result of the personal injury pursuant to the United States Social Security Act, any state or
federal income disability or worker’s compensation act, any health, sickness or income-disability
insurance, accident insurance that provides health benefits or income-disability coverage, and
any contract or agreement of any group, organization, partnership, or corporation to provide, pay
for, or reimburse the cost of medical, hospital, dental, or other health care services. Where the
defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount
which the plaintiff has paid or contributed to secure his right to any insurance benefits
concerning which the defendant has introduced evidence.”
16.
The Barme court also rejected the city’s equal protection argument—i.e., that the
provision “afford[ed] medical malpractice defendants benefits not afforded to other tort
defendants and impos[ed] a burden on employers who provide benefits to victims of
medical malpractice that is not imposed on employers in other situations.” (Barme,
supra, 37 Cal.3d at pp. 181–182.) The high court noted it had rejected a similar argument
in American Bank. (Barme, at p. 182.)
c. Roa
The following year, 1985, Roa was decided. In Roa, the California Supreme
Court considered a challenge to Business and Professions Code section 6146, also
challenged here, on grounds the statute violated due process, equal protection, and the
separation of powers. (Roa, supra, 37 Cal.3d at p. 925.) In considering the due process
challenge, the court noted “the right to be represented by retained counsel in civil
actions” is embraced by the due process guarantee. (Ibid., italics added, citing Powell v.
Alabama (1932) 287 U.S. 45, 68–69 and Mendoza v. Small Claims Court (1958) 49
Cal.2d 668, 673.) Powell clarified the proposition. Noting that due process entails notice
and an opportunity to be heard, the Powell court wrote: “What, then, does a hearing
include? Historically and in practice, in our own country at least, it has always included
the right to the aid of counsel when desired and provided by the party asserting the
right.” (Powell, supra, at p. 68, italics added; accord, Mendoza, supra, at p. 673, citing
Powell, at p. 68.) The Roa court determined Business and Professions Code section 6146
“does not in any way abrogate the right to retain counsel, but simply limits the
compensation that an attorney may obtain when he represents an injured party under a
contingency fee arrangement.” (Roa, supra, at p. 926.)
The Roa court also noted that “[s]tatutory limits on attorney fees are not at all
uncommon, either in California or throughout the country generally. In this state,
attorney fees have long been legislatively regulated both in workers’ compensation
17.
proceedings (Lab. Code, § 4906) and in probate matters. (Prob. Code, §§ 910, 901.)
Some states have adopted maximum fee schedules which apply to all personal-injury
contingency fee arrangements [citations]; others have enacted limits which, like
[Business and Professions Code] section 6146, apply only in a specific area, such as
medical malpractice. [Citations.] Congress has passed numerous statutes limiting the
fees that an attorney may obtain in representing claimants in a variety of settings. (See,
e.g., 28 U.S.C. § 2678 [limit on attorney fee in actions under the Federal Tort Claims
Act]; 42 U.S.C. § 406(b)(1) [limit on attorney fee in actions under the Social Security
Act]; 38 U.S.C. § 3404 [limit on fee for claims under the Veterans Benefit Act].)” (Roa,
supra, 37 Cal.3d at p. 926.) The court further acknowledged “[t]he validity of such
legislative regulation of attorney fees is well established.” (Ibid.; see id. at pp. 926–927
[citing numerous U.S. Supreme Court cases and California case law].) The high court
stated, “These decisions establish that … legislative ceilings on attorney fees are in no
respect ‘constitutionally suspect’ or subject to ‘strict’ judicial scrutiny.” (Id. at p. 927.)
In considering the equal protection challenge to Business and Professions Code
section 6146, the Roa court gave a handful of examples of how the statute was rationally
related to the objectives of MICRA. (Roa, supra, 37 Cal.3d at pp. 930–932.) The court
also rejected the plaintiffs’ separation of powers argument, which was premised on the
contention the judiciary has “inherent power to review attorney fee contracts and to
prevent overreaching and unfairness” and “the question of the appropriateness of attorney
fees is a matter committed solely to the judicial branch.” (Id. at p. 933.) Noting the
historical legislative practice of “impos[ing] limits on attorney fees in a variety of fields,”
the court wrote, “Applicable California authority expressly refutes the claim that the
Legislature has no power to act in this setting.” (Ibid.)
18.
d. Fein
The same year Roa was decided, our state high court decided Fein v. Permanente
Medical Group (1985) 38 Cal.3d 137 (Fein). In Fein, the plaintiff received a damages
award of approximately $1 million, which included $500,000 for noneconomic damages.
(Id. at pp. 142, 145.) At the defendant’s request, the trial court modified the judgment by,
among other things, reducing the award of noneconomic damages to $250,000 pursuant
to Civil Code section 3333.2 (also at issue here). (Fein, at p. 145.) On appeal, the
plaintiff argued the trial court erred in applying Civil Code sections 3333.2 and 3333.1.
(Fein, supra, at p. 142.) The “plaintiff’s argument track[ed] the constitutional objections
to other provisions of MICRA that [the high court] ha[d] recently rejected in American
Bank, Barme and Roa.” (Id. at p. 157.)
In rejecting the plaintiff’s due process argument, the Fein court noted the issue
was somewhat different from that posed in American Bank in that the latter case involved
the postponement of a plaintiff’s receipt of damages by allowing periodic, rather than
lump sum, payments. (Fein, supra, 38 Cal.3d at p. 158.) The court wrote, “That
difference, however, does not alter the applicable due process standard of review. As our
language in American Bank itself suggests, our past cases make clear that the Legislature
retains broad control over the measure, as well as the timing, of damages that a defendant
is obligated to pay and a plaintiff is entitled to receive, and that the Legislature may
expand or limit recoverable damages so long as its action is rationally related to a
legitimate state interest.” (Id. at p. 158.) The court held that Civil Code section 3333.2
“is rationally related to the objective of reducing the costs of malpractice defendants and
their insurers.” (Fein, at p. 159; see id. at p. 160.)
The Fein court also rejected an equal protection challenge to Civil Code section
3333.2, premised on the dual argument “it impermissibly discriminates between medical
malpractice victims and other tort victims, imposing its limits only in medical
malpractice cases, and … improperly discriminates within the class of medical
19.
malpractice victims, denying a ‘complete’ recovery of damages only to those malpractice
plaintiffs with noneconomic damages exceeding $250,000.” (Fein, supra, 38 Cal.3d at
pp. 161–162.) In rejecting the first argument, the court noted the Legislature was
“responding to an insurance ‘crisis’ in that particular area and that the statute is rationally
related to the legislative purpose” as stated in American Bank, Barme, and Roa. In
rejecting the second argument, the court determined, among other things, that the equal
protection clause “does not require the Legislature to limit a victim’s recovery for out-of-
pocket medical expenses or lost earnings simply because it has found it appropriate to
place some limit on damages for pain and suffering and similar noneconomic losses.”
(Fein, at p. 162.) The court further noted that “Just as the complete elimination of a
cause of action has never been viewed as invidiously discriminating within the class of
victims who have lost the right to sue, the $250,000 limit—which applies to all
malpractice victims—does not amount to an unconstitutional discrimination.” (Ibid.)
For these and other reasons we need not catalog, the court rejected the plaintiff’s equal
protection challenge. (Id. at pp. 162–163.)
2. Other Case Law
a. Stinnett
In 2011, this court decided Stinnett v. Tam (2011) 198 Cal.App.4th 1412(Stinnett), which involved a constitutional challenge to Civil Code section 3333.2 on
grounds the reduction of the plaintiff’s jury award from $6 million to $250,000
“constituted (1) a violation of her right to equal protection of the laws guaranteed by the
Fourteenth Amendment to the United States Constitution and by article I, section 7,
subdivision (a) of the California Constitution and (2) a violation of [the plaintiff’s] right
to a jury trial under article I, section 16 of the California Constitution.” (Id. at p. 1417.)
In support of her argument before the trial court, the Stinnett plaintiff proffered a
declaration from an attorney “‘heavily involved with the medical malpractice insurance
20.
industry’” who had “co-authored Proposition 103, the insurance reform initiative
California voters enacted in 1988.” (Stinnett, supra, 198 Cal.App.4th at p. 1419.) The
gist of the attorney’s declaration was similar to allegations made by plaintiffs herein. The
attorney’s declaration stated that, as of 2008, the circumstances that led to enactment of
MICRA had changed such that “malpractice insurance rates were declining, dozens of
traditional and nontraditional malpractice insurers were writing coverage, new carriers
were entering the industry, claims payments were decreasing and malpractice insurance
profits had been excessive for at least a decade; (2) while eliminating the MICRA cap on
noneconomic damages would increase malpractice claims costs, ‘eliminating the cap
should not have a material effect on rates, since California malpractice insurers would
still have been able to earn at least an adequate profit for the last ten years had the cap not
existed, and would continue to be able to earn such a profit if the cap were eliminated
today’; and (3) data from states that have not limited noneconomic damages indicate that
malpractice insurers have been able to prosper in such states.” (Stinnett, supra, at p.
1419.) The plaintiff likewise submitted an expert declaration indicating the “value of
$250,000 in 1975” was reduced to “a present value in 2008 of approximately $58,857.”
(Ibid.)
We rejected the Stinnett plaintiff’s equal protection challenge noting, among other
things, that, in Fein, our state Supreme Court had already determined Civil Code section
3333.2 is “‘rationally related to a legitimate state interest’ and ‘rationally related to the
legislative purpose.’” (Stinnett, supra, 198 Cal.App.4th at p. 1432.)
We also rejected the Stinnett plaintiff’s jury trial right challenge. (Stinnett, supra,
198 Cal.App.4th at p. 1433.) The Stinnett plaintiff contended the Legislature lacked
authority to cap damages for noneconomic injury and that “only a jury” has such
authority. (Ibid.) We concluded the plaintiff’s argument went against our state Supreme
Court’s pronouncements that “‘a plaintiff has no vested property right in a particular
measure of damages, and … the Legislature possesses broad authority to modify the
21.
scope and nature of such damages’ (American Bank, supra, 36 Cal.3d at p. 368)” and
“‘the Legislature retains broad control over the measure, as well as the timing, of
damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and …
the Legislature may expand or limit recoverable damages so long as its action is
rationally related to a legitimate state interest’ (Fein, supra, 38 Cal.3d at p. 158).”
(Stinnett, supra, 198 Cal.App.4th at p. 1433.) Noting we are bound by our high court’s
precedents, we likewise recognized a jury trial right challenge to Civil Code section
3333.2 was previously rejected in Yates v. Pollock (1987) 194 Cal.App.3d 195, 200,
which relied on Fein and American Bank for its holding.
b. Chan
Several years after Stinnett was decided, and like Stinnett and the case before us,
the First District Court of Appeal had occasion to consider the plaintiff’s argument that,
due to changed circumstances, the “noneconomic damages cap is no longer rationally
defensible.” (Chan, supra, 237 Cal.App.4th at p. 613.) The Chan plaintiff challenged
Civil Code section 3333.2 on grounds it violated “equal protection, due process and the
right to jury trial.” (Chan, at p. 605.) The plaintiff contended she had “shown there no
longer is a medical malpractice insurance ‘crisis’ and therefore the rationale for the cap
(indeed, for all of MICRA) no longer exists.” (Id. at p. 606.)
The Chan plaintiff introduced evidence (1) the $250,000 cap “in 2012 dollars
equaled only $59,000 in 1975 dollars”; (2) the cost of legal services had risen
“approximately sixfold” in the intervening period; (3) “the $250,000 noneconomic
damages cap discourages contingent-fee lawyers from taking many malpractice cases”;
(4) there has been “a precipitous increase in the cost of medical services and medical
experts’ hourly fees”; (5) that many personal injury lawyers “refuse to consider medical
malpractice cases altogether, or take only those cases that appear strong and involve large
economic damages” and that “according to these attorneys, cases involving severe injury
22.
or death to the elderly and unemployed often do not reach the courts because economic
damages are likely to be small, since lost wages are usually nonexistent and, if the victim
is deceased, there are no future medical costs”; (6) that “insurance-industry lawyers can
far outspend and outstaff cases because their clients pay by the hour and MICRA does
not limit the amount of collectable fees”; (7) that the costs of trying the case on behalf of
the plaintiff “far exceeded the jury award after the adjustment under MICRA …, let alone
the maximum allowable contingency fee thereon”; and (8) with the passage of
Proposition 103 in 1988, “medical malpractice insurance premiums rose an average of 14
percent per year, but since 1988, premiums have increased an average of only 1 percent
per year” and that “California medical malpractice insurers are enjoying a period of high
profits ….” (Chan, supra, 237 Cal.App.4th at pp. 609–610.)
The Chan court noted the “‘“standard of rationality does not depend upon whether
lawmakers ever actually articulated the purpose they sought to achieve. Nor must the
underlying rationale be empirically substantiated. [Citation.] While the realities of the
subject matter cannot be completely ignored [citation], a court may engage in ‘“rational
speculation”’ as to the justifications for the legislative choice [citation]. It is immaterial
for rational basis review ‘whether or not’ any such speculation has ‘a foundation in the
record.’”’” (Chan, supra, 237 Cal.App.4th at p. 612.)
“‘While parties challenging legislation under the equal protection clause may
introduce evidence supporting their claim that the legislation is irrational, they cannot
prevail if it is evident that “‘the question is at least debatable.’”’ [Citations.] Thus, ‘[t]o
mount a successful rational basis challenge, a party must “‘negative every conceivable
basis’” that might support the disputed statutory disparity. [Citations.] If a plausible
basis exists for the disparity, courts may not second-guess its “‘wisdom, fairness, or
logic.’”’” (Chan, supra, 237 Cal.App.4th at pp. 612–613.)
The Chan court further noted, “The role of ‘changed circumstances’ in
constitutional analysis is fraught with institutional tension and analytical difficulties. ‘It
23.
is not … easy for courts to step in and say that what was rational in the past has been
made irrational by the passage of time, change of circumstances, or the availability of
new knowledge. Nor should it be. Too many issues of line drawing make such judicial
decisions hazardous. Precisely at what point does a court say that what once made sense
no longer has any rational basis? What degree of legislative action, or of conscious
inaction, is needed when that (uncertain) point is reached? These difficulties—and many
others—counsel restraint, and do so powerfully.’” (Chan, supra, 237 Cal.App.4th at pp.
613–614.)
“[C]ourts are extremely chary of invalidating legislative acts that have previously
been held constitutional. Our Supreme Court has done so only on rare occasions ….”
(Chan, supra, 237 Cal.App.4th at p. 606.) Chan reiterated this court’s observation that
“‘[g]enerally, modification or repeal of a statute made obsolete by virtue of changed
conditions is a legislative, not a judicial, prerogative.’” (Id. at p. 614, citing, Stinnett,
supra, 198 Cal.App.4th at p. 1428.)
The Chan court determined the plaintiff had “not shown there is no reasonably
plausible purpose presently advanced by [Civil Code] section 3333.2.” (Chan, supra,
237 Cal.App.4th at p. 606.) The court concluded “Fein remains the controlling authority
as to the constitutional validity of MICRA’s noneconomic damages cap on equal
protection grounds and reject[ed the plaintiff’s] equal protection challenge to [Civil
Code] section 3333.2.” (Chan, supra, 237 Cal.App.4th at p. 621.)
Chan likewise rejected a similar due process argument as that made by plaintiffs—
that the $250,000 cap on noneconomic damages “does not yield enough in contingency
fees to make prosecuting most medical malpractice claims economically feasible,
effectively denying most malpractice victims access to the courts.” (Chan, supra, 237
Cal.App.4th at p. 623.) The court noted this argument was “essentially the same due
process argument that was advanced in Roa …,” which “involved a challenge to
24.
MICRA’s attorney fees provision limiting contingency percentages (Bus. & Prof. Code,
§ 6146), not to the act’s damages provisions.” (Ibid., italics omitted.)
The Chan court noted the plaintiff’s argument “is that noneconomic damages be
potentially sufficient to cover attorney fees.” (Chan, supra, 237 Cal.App.4th at p. 623.)
The court described the plaintiff’s position as “difficult to reconcile with the fact
California ascribes to the ‘American Rule’ under which parties must bear their own
attorney fees unless a statute or contract expressly provides for such.” (Id. at pp. 623–
624.) It also concluded it could not “reconcile [the plaintiff’s] argument with the general
rule that there ‘is no due process right to counsel in civil cases.’” (Id. at p. 625.)
In rejecting the plaintiff’s due process challenge, the Chan court concluded
“MICRA’s damages cap does not invariably close the courthouse doors to malpractice
plaintiffs. Even assuming it diminishes the number of cases taken by lawyers on
contingency, it does not prevent individuals from pursuing their own cases, hiring an
attorney on an hourly basis, or seeking pro bono legal assistance. [Citations.] A
malpractice victim may also negotiate a resolution of his or her claim, even if that may
prove difficult.” (Chan, supra, 237 Cal.App.4th at p. 627.)
Finally, Chan rejected the plaintiff’s jury trial argument, which it characterized as
a “variation” of the argument made in American Bank and noted “[t]he Supreme Court
concluded that as long as the jury was the finder of fact as to the amount of future
damages, the directive that the trial court fix the periodic payment schedule did not
infringe on the right to jury trial.” (Chan, supra, 237 Cal.App.4th at p. 628.) This
holding, Chan noted, was reaffirmed in Salgado v. County of Los Angeles (1998) 19
Cal.4th 629, and that Salgado “[i]n discussing the noneconomic damages cap, …
explained it ‘places no limit on the amount of injury sustained by the plaintiff, as assessed
by the trier [of] fact, but only on the amount of the defendant’s liability.’” (Chan, at p.
629, quoting Salgado, at p. 640.) Chan described the plaintiff’s jury trial right challenge
as “‘an indirect attack upon the Legislature’s power to place a cap on damages’” and that
25.
“our Supreme Court has repeatedly held ‘the Legislature retains broad control over the
measure, as well as the timing, of damages that a defendant is obligated to pay and a
plaintiff is entitled to receive ….’” (Chan, at p. 629.)
The foregoing authorities demonstrate that plaintiffs have chosen a daunting task
in seeking to invalidate the challenged statutes. Their arguments on appeal raise some of
the same or similar arguments as those raised in past challenges to MICRA’s various
provisions—albeit some with variations on those familiar themes.
Although sometimes couched in different ways, plaintiffs’ lawsuit appears to
challenge several principles set forth in prior California Supreme Court and Court of
Appeal decisions, including, without limitation (1) whether a party has a “vested property
right in a particular measure of damages” (American Bank, supra, 36 Cal.3d at p. 368
[holding no such right exists]); (2) whether the Legislature, as opposed to the judiciary
should “reweigh the ‘legislative facts’ underlying a legislative enactment” (id. at p. 372
[concluding it should not]); (3) whether “legislative ceilings on attorney fees” are
“‘constitutionally suspect’ or subject to ‘strict’ judicial scrutiny” (Roa, supra, 37 Cal.3d
at p. 927 [answering both questions in the negative]); (4) whether capping noneconomic
damages at $250,000 amounts to unconstitutional discrimination (see Fein, supra, 38
Cal.3d at p. 162 [holding it does not]) or violates a plaintiff’s jury trial rights (see
Stinnett, supra, 198 Cal.App.4th at p. 1433 [holding it does not]; Yates v. Pollock, supra,
194 Cal.App.3d at p. 200 [same]; Chan, supra, 237 Cal.App.4th at pp. 629–630 [same]);
(5) whether a party has a right to counsel in civil proceedings (see Chan, at p. 625 [no
due process right to counsel]); and (6) whether changed circumstances have rendered the
challenged statutes unconstitutional because they are no longer rationally related to a
legitimate state purpose (see Stinnett, supra, at pp. 1428–1432 [rejecting such a
challenge]; Chan, supra, at pp. 621–622 [same]).
The trial court sustained demurring defendants’ demurrer on both grounds asserted
by demurring defendants to each cause of action, namely: (1) plaintiffs lack standing to
26.
pursue the claims alleged in their complaint; and (2) plaintiffs failed to allege sufficient
facts to constitute a cause of action. Because we conclude, post, that plaintiffs lack
standing to pursue the claims they have alleged, we need not determine whether their
allegations are sufficient to state one or more valid causes of action.
V. Plaintiffs Lack Standing to Challenge Civil Code Section 3333.2 and Business
and Professions Code Section 6146
“Courts are created to resolve cases and controversies and not to render advisory
opinions or resolve questions of purely academic interest. Accordingly, courts will not
consider issues tendered by a person whose rights and interests are not affected.”
(B. C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929, 947–948.)
To have standing, “a party attacking the constitutionality of the statute must show
some actual or threatened injury.” (Burns v. State Compensation Ins. Fund (1968) 265
Cal.App.2d 98, 104.) “A person who invokes the judicial process lacks standing if he, or
those whom he properly represents, ‘does not have a real interest in the ultimate
adjudication because [he] has neither suffered nor is about to suffer any injury of
sufficient magnitude reasonably to assure that all of the relevant facts and issues will be
adequately presented.’” (Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707–
708.)
“‘To have standing, a party must be beneficially interested in the controversy; that
is, he or she must have “some special interest to be served or some particular right to be
preserved or protected over and above the interest held in common with the public at
large.” [Citation.] The party must be able to demonstrate that he or she has some such
beneficial interest that is concrete and actual, and not conjectural or hypothetical.’”
(Teal v. Superior Court (2014) 60 Cal.4th 595, 599, original italics omitted, italics
added.) This standard “is equivalent to the federal ‘injury in fact’ test ….” (Associated
Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352,
362.) “‘“Without standing, there is no actual or justiciable controversy, and courts will
27.
not entertain such cases.”’” (Schoshinski v. City of Los Angeles (2017) 9 Cal.App.5th
780, 790.) “[A] difference of opinion as to [the] validity [of a statute] … is obviously not
enough by itself to constitute an actual controversy.” (Pacific Legal Foundation v.
California Coastal Com. (1982) 33 Cal.3d 158, 173 (Pacific Legal).)
“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist. See Black’s
Law Dictionary 506 (10th ed. 2014). When we have used the adjective ‘concrete,’ we
have meant to convey the usual meaning of the term—‘real,’ and not ‘abstract.’
Webster’s Third New International Dictionary 472 (1971); Random House Dictionary of
the English Language 305 (1967). Concreteness, therefore, is quite different from
particularization.” (Spokeo, Inc. v. Robins (2016) 578 U.S. 330, 340.) “The essence of
the standing inquiry … is whether a dispute has matured to the point that it is proper for
resolution by the judicial branch, i.e., whether ‘the issues presented are “definite and
concrete, not hypothetical or abstract.” [Citation.] In assuring that this jurisdictional
prerequisite is satisfied, we consider whether the plaintiffs face “a realistic danger of
sustaining a direct injury as a result of the statute’s operation or enforcement,” [citation,]
or whether the alleged injury is too “imaginary” or “speculative” to support
jurisdiction.’” (Coral Construction, Inc. v. City and County of San Francisco (2004) 116
Cal.App.4th 6, 25.)
The term “conjectural” is defined as “1: of the nature of or involving or based on
conjecture …. [¶] 2: given to conjectures.” ( [as of Dec. 19, 2022].) The term “conjecture” in
this context is defined as “1a: inference formed without proof or sufficient evidence [¶] b:
a conclusion deduced by surmise or guesswork …. [¶] c: a proposition (as in
mathematics) before it has been proved or disproved.” ( [as of Dec. 19, 2022]; see
[as of Dec. 19, 2022], [defining the noun conjecture as
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“1 the formation or expression of an opinion or theory without sufficient evidence for
[sic] proof [¶] 2 an opinion or theory so formed or expressed; guess; speculation”].)
A. CZR Does Not Have Standing
Plaintiffs make no argument concerning whether CZR has standing to pursue an
attack, constitutional or otherwise, on the challenged statutes. Nor are we able to discern
a basis for CZR’s standing in this matter. “[A]n appellant’s failure to discuss an issue in
its opening brief forfeits the issue on appeal.” (Christoff v. Union Pacific Railroad Co.
(2005) 134 Cal.App.4th 118, 125.) Accordingly, we affirm the judgment of dismissal as
it pertains to CZR on grounds CZR lacks standing to pursue the claims alleged.
B. Heirs Do Not Have Standing
1. Heirs’ Alleged Injuries Are Insufficient to Confer Upon Them
Standing to Challenge the Statutes in Question
In their opening brief, plaintiffs first address the standing issue by anticipating
demurring defendants “will argue that [plaintiffs] lack standing because [heirs] retained
[counsel] to represent them on an hourly fee per task basis” in the medical malpractice
case. In response to this anticipated argument, plaintiffs contend “the only evidence
before this court is that [heirs’ medical malpractice attorney] will no longer represent
[heirs] and will withdraw. As such, [heirs] are—for all practical purposes—in pro per.”
Plaintiffs further contend the trial court made findings that heirs’ “‘financial situation
leaves them in a position of being unable to present evidence in opposition to [Dr.] Yu’s
motion for summary judgment [in the medical malpractice case], even though such
evidence exists in the form of contrary expert witness declarations’”; that their
declaratory relief action at issue in the present case “‘will determine whether [heirs] may
retain the firm of [CZR] to litigate this matter under a contingency fee agreement that
does not meet the confines of Business and Professions Code § 6146’”; and that without
“controverting expert evidence,” the summary judgment motion is “likely to be granted.”
29.
The above factual assertions are premised solely on statements contained in the
medical malpractice filings that plaintiffs requested we judicially notice. As previously
mentioned, we are unable to take judicial notice of the truth of those assertions. (Glaski,
supra, 218 Cal.App.4th at p. 1090.)
Our review of the complaint reveals there are no allegations (1) that heirs’ current
medical malpractice attorney intends to withdraw from representing heirs in the medical
malpractice case; (2) that heirs will be unable to present evidence in opposition to a
pending motion for summary judgment in that matter; or (3) that evidence in opposition
to the motion for summary judgment “exists in the form of contrary expert witness
declarations.” The only related allegation in the complaint appears to be that heirs “are of
limited means and cannot afford to fully prosecute the action by paying their counsel on
an hourly basis.” Moreover, nothing in the complaint (or, for that matter, in the
documents plaintiffs have requested we judicially notice) indicate heirs’ current medical
malpractice attorney has actually moved to withdraw from the litigation, or that the court
has taken action on such a motion. To the contrary, the medical malpractice filings
reveal that, at least as of the date of their filing, said attorney continues to represent heirs
in the medical malpractice case. Although there is an averment of heirs’ financial
inability to pay future attorney costs, there is no averment that heirs have not paid fees
and costs incurred as of the date of the medical malpractice filings.
Although the trial court in the medical malpractice case apparently opined (or
found) that Dr. Yu’s summary judgment motion would “likely be granted” in the absence
of controverting expert evidence—which, as mentioned, we cannot assume to be true—
we note the court did not state whether Dr. Yu had met his burden on summary judgment
such that the burden would shift to heirs to present evidence sufficient to raise a triable
issue of fact. Obviously, if Dr. Yu has not met his burden on summary judgment, the
motion would properly be denied. Moreover, the court does not appear to have had the
30.
benefit of an opposition from heirs. We cannot presume the success or defeat of Dr. Yu’s
pending motion for summary judgment in the medical malpractice case.
Based on the allegations of the complaint, heirs have had access to the court
system with respect to their medical malpractice claims and are currently represented in
that action. “[W]hile MICRA’s noneconomic damages cap may well influence an
attorney’s decision to take or reject a medical malpractice case on contingency, the cap
does not violate a due process right to court access.” (Chan, supra, 237 Cal.App.4th at p.
627.) “MICRA’s damages cap does not invariably close the courthouse doors to
malpractice plaintiffs.” (Ibid.)
Moreover, even if we were to assume that heirs’ medical malpractice attorney will
withdraw from the litigation, heirs have no due process right to an attorney in the medical
malpractice case. (Chan, supra, 237 Cal.App.4th at p. 625.) “[T]he general rule is that
there is no due process right to counsel in civil cases. [Citation.] Generally speaking, the
right to counsel has been recognized to exist only where the litigant may lose his physical
liberty if he loses the litigation.” (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116,
citing Lassiter v. Department of Social Services (1981) 452 U.S. 18, 25, and Salas v.
Cortez (1979) 24 Cal.3d 22, 34.) As the Chan court aptly noted, “[e]ven assuming it
diminishes the number of cases taken by lawyers on contingency, it does not prevent
individuals from pursuing their own cases, hiring an attorney on an hourly basis, or
seeking pro bono legal assistance.” (Chan, supra, at p. 627.) The potential that heirs
may ultimately have to prosecute their medical malpractice case in propria persona in the
event their current medical malpractice counsel withdraws does not rise to the level of a
cognizable injury for standing purposes in the case at bar.
The allegations of plaintiffs’ complaint further establishes that heirs have yet to
receive a final award or adjudication (favorable or unfavorable) in the medical
malpractice case. At this stage of the medical malpractice litigation, to arrive at the
conclusion that heirs have suffered or are about to suffer a concrete and actual injury to
31.
their interests, we would have to engage in rank speculation that heirs will ultimately
prevail in that litigation—even though experience teaches us they may not prevail even
with a meritorious case; that an assumed jury award in their favor will exceed the
$250,000 noneconomic damages cap—even though any assumed award in their favor
may actually prove to be less; that heirs could not obtain a similarly favorable award
absent CZR undertaking their representation in the medical malpractice case—even
though it is within the realm of possibility plaintiffs could secure a similar or more
favorable award under alternative representation (e.g., pro bono representation, or self-
representation), 19 and that the case would not settle before any assumed jury award was
rendered—even though experience teaches us that is often the case.
Unlike Stinnett and Chan, where the plaintiffs in those cases actually obtained a
favorable verdict in excess of the $250,000 noneconomic damages cap (Stinnett, supra,
198 Cal.App.4th at p. 1417 [$6 million noneconomic damage award reduced to
$250,000]; Chan, supra, 237 Cal.App.4th at p. 605 [$1 million noneconomic damages
award reduced to $250,000]), and thus could establish standing for purposes of their
respective appeals, heirs have only an unrealized expectation of a favorable award in
excess of MICRA’s noneconomic damages cap that may, or may not, ever come into
fruition. It is not within our province to speculate as to the outcome of heirs’ medical
malpractice case and we express no opinion in that regard. At this stage of the medical
malpractice case, however, heirs’ alleged injuries are neither concrete nor actual. They
are, at present, conjectural and hypothetical.
19Although we recognize, as a practical matter, it is often more difficult for a self-
represented plaintiff to present his or her case to a trier of fact, we cannot assume or presume
plaintiffs would be unable to do so effectively.
32.
2. The Trial Court Did Not Err in Deciding Plaintiffs’ Declaratory
Relief Cause of Action on Demurrer
Plaintiffs contend they have alleged an actual controversy, it was improper for the
trial court to decide plaintiffs’ declaratory relief cause of action on demurrer, and they
“were entitled to an opportunity to conduct discovery and present their case.” In essence,
plaintiffs contend they have alleged sufficient facts demonstrating “a constitutionally
significant change in circumstances” to warrant a trial of the matter.
Amici curiae note plaintiffs allege that heirs “have a property right in the non-
economic damages owed” to them by healthcare defendants and that the right is
assignable. However, amici argue that assignability does not equate with a vested
property right and that California Supreme Court authority confirms there is “no property
right to a particular measure of damages.” Amici further note the case is not ripe for
adjudication because there has been no jury verdict in excess of $250,000, the dispute is
not sufficiently concrete, and heirs have not and cannot show they “‘will suffer hardship
if judicial consideration is withheld.’” Amici further argue the challenge to Business and
Professions Code section 6146 requires this court “to speculate that [heirs] will not be
able to achieve through the underlying action what [CZR] could have achieved had it
accepted the case” and that this court is being “‘asked to speculate on the resolution of
hypothetical situations’ of what could potentially result in that litigation.” Amici
contend, “[w]ithout the application of MICRA’s provisions to an existing jury verdict,
there is no ‘hardship to the parties of withholding court consideration,’ ‘as the difference
of opinion regarding the [statutes’] validity [is] not enough by itself to constitute an
actual controversy,’” citing Pacific Legal, supra, 33 Cal.3d at pages 172–173.
Code of Civil Procedure section 1060 provides, in part:
“Any person interested under a written instrument, excluding a will or a
trust, or under a contract, or who desires a declaration of his or her rights or
duties with respect to another, or in respect to, in, over or upon property, or
with respect to the location of the natural channel of a watercourse, may, in
cases of actual controversy relating to the legal rights and duties of the
33.
respective parties, bring an original action or cross-complaint in the
superior court for a declaration of his or her rights and duties in the
premises, including a determination of any question of construction or
validity arising under the instrument or contract….” (Italics added.)
Plaintiffs’ cause of action for declaratory relief is derivative of plaintiffs’ other
claims. Their declaratory relief cause of action incorporates all prior allegations
contained in the complaint and then alleges “[a]n actual and justiciable controversy exists
between Plaintiffs and Defendants because Plaintiffs contend, and Defendants dispute,
that Defendants’ actions, inactions, and intended actions as described above have and will
violate the constitutional provisions cited herein” and “Plaintiffs seek a declaration that
Civil Code § 3333.2’s cap on noneconomic damages separately and, especially when
coupled with Business and Professions Code § 6146’s restrictions on attorneys’ fees,
violate the U.S. and California Constitutions.” No additional facts are alleged in this
cause of action.
“‘The “actual controversy” language in Code of Civil Procedure section 1060
encompasses a probable future controversy relating to the legal rights and duties of the
parties. [Citation.]’ [Citation.] It does not embrace controversies that are ‘conjectural,
anticipated to occur in the future, or an attempt to obtain an advisory opinion from the
court.’ [Citation.] Thus, while a party may seek declaratory judgment before an actual
invasion of rights has occurred, it must still demonstrate that the controversy is
justiciable. [Citation.] And to be justiciable, the controversy must be ripe.” (Wilson &
Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582.) “‘To
determine whether an issue is ripe for review, we evaluate two questions: the fitness of
the issue for judicial decision and the hardship that may result from withholding court
consideration.’” (Ibid.) The two-pronged test for ripeness has also been described as
follows: “(1) whether the dispute is sufficiently concrete so that declaratory relief is
appropriate; and (2) whether the parties will suffer hardship if judicial consideration is
withheld.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 64.)
34.
Plaintiffs’ argument that it was improper for the trial court to sustain the demurrer
as to plaintiffs’ declaratory relief cause of action is premised on their contention they
have articulated an actual controversy—i.e., a controversy that is ripe for adjudication
under the tests described above.
We have already explained our determination that plaintiffs’ alleged injuries are
neither concrete nor actual, and that they are, at the present time, conjectural and
hypothetical. For the same reasons supporting that determination, we cannot conclude
plaintiffs will suffer hardship if declaratory relief is withheld. We would have to engage
in all manner of speculation to arrive at such a conclusion. At present, plaintiffs and
demurring defendants merely have “a difference of opinion as to [the] validity [of the
challenged statutes,]” which our high court has stated, “is obviously not enough by itself
to constitute an actual controversy.” (Pacific Legal, supra, 33 Cal.3d at p. 173.)
Notably, none of the authorities cited by plaintiffs stand for the proposition that an
appellant may avoid a demurrer merely by alleging an unripe dispute constitutes an
“actual controversy.” (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82
Cal.App.4th 592, 604–605 [each party, through their pleadings, admitted facts
demonstrating an actual controversy]; Wellenkamp v. Bank of America (1978) 21 Cal.3d
943, 947 [“It is clear that the complaint shows the existence of an actual controversy
sufficient to state a cause of action for declaratory relief”], superseded by statute and
regulation on unrelated grounds in Fidelity Federal Sav. & Loan Assn. v. de la Cuesta
(1982) 458 U.S. 141, 170, fn. 24.)
Even plaintiffs’ cited authority of Alfaro v. Terhune (2002) 98 Cal.App.4th 492held that the trial court did not err in sustaining a demurrer to the plaintiffs’ constitutional
claim (asserted in a declaratory relief cause of action) where the claim was capable of
being resolved as a question of law. (Id. at pp. 498, 509–510; see Coffman Specialties,
Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1144, 1155
[demurrer sustained as to declaratory relief cause of action alleging statute’s
35.
unconstitutionality upheld on appeal]; Monsanto Co. v. Office of Environmental Health
Hazard Assessment (2018) 22 Cal.App.5th 534, 550–551 [judgment on pleadings and
demurrer sustained as to declaratory relief cause of action alleging unconstitutionality of
statute upheld on appeal].)
“A demurrer raises only a question of law, as the allegations of fact contained in
the complaint must be accepted as true by the court for purposes of review.” (Cellular
Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231.) We have reviewed the
allegations of the complaint and conclude, as a matter of law, that plaintiffs have not
alleged an actual controversy for purposes of Code of Civil Procedure section 1060.
We conclude plaintiffs lack standing to challenge Civil Code section 3333.2 and
Business and Professions Code section 6146.
DISPOSITION
The judgment of dismissal is affirmed. Demurring defendants the Attorney
General and the Chairman are entitled to their costs on appeal.
PEÑA, J.
WE CONCUR:
HILL, P. J.
SNAUFFER, J.
36.
Filed 1/6/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TRACY DOMINGUEZ et al.,
F082053 & F082208
Plaintiffs and Appellants,
(Super. Ct. No. BVC-20-101229)
v.
ORDER MODIFYING OPINION AND
ROB BONTA, as Attorney General etc., et al., CERTIFYING OPINION FOR
PUBLICATION
Defendants and Respondents. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on December 19, 2022, be modified as
follows:
At the end of the third paragraph on page 3, add as footnote 4 the following
footnote, which will require renumbering of all subsequent footnotes:
4In2022, the Legislature enacted Assembly Bill No. 35 (2021–2022
Reg. Sess.), which amends Civil Code section 3333.2, Business and
Professions Code section 6146, and other related statutes. However, the
newly enacted legislation is not at issue in this appeal. Effective January 1,
2023, Civil Code section 3333.2, among other things, increases the dollar
amount limitation of damages awards for noneconomic losses in medical
malpractice cases (1) to $350,000 for injury not involving wrongful death,
with specified annual increases to this dollar amount limitation until it
reaches $750,000; and (2) to $500,000 for injuries involving wrongful
death, with specified annual increases to this dollar amount limitation until
it reaches $1 million. (Stats. 2022, ch. 17, § 3.) In addition, the new law
establishes three separate categories of health care defendants against
whom a plaintiff may seek damages. (Ibid.) Effective January 1, 2023,
Business and Professions Code section 6146, among other things,
restructures the contingency fee percentages an attorney may charge a
plaintiff in a medical malpractice action, and authorizes different
contingency fee percentages depending on the stage of litigation in which
recovery is obtained. (Stats. 2022, ch. 17, § 2.)
There is no change in the judgment. Except for the modification set forth, the
opinion previously filed remains unchanged.
The opinion in the above-entitled matter filed on December 19, 2022, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.
PEÑA, J.
WE CONCUR:
HILL, P. J.
SNAUFFER, J.
2.