Luo v. Bonta CA1/5

Filed 9/29/23 Luo v. Bonta CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION FIVE

YU LUO et al.,
Plaintiffs and Appellants, A164164
v.
ROB BONTA, as Attorney General, (Alameda County
etc., et al., Super. Ct. No. RG20057577)
Defendants and Respondents.

The collective plaintiffs, Yu Luo, Wei Lin, Carpenter, Zuckerman &
Rowley (CZR), and Bhanji Law Firm, appeal from an order sustaining
without leave to amend defendants’ demurrers to collective plaintiffs’ first
amended complaint challenging the constitutionality of certain provisions of
the Medical Injury Compensation Reform Act (MICRA).1 We affirm.

1 The general rule is that an order sustaining a demurrer without leave

to amend is not appealable but that a party may appeal from the entry of
dismissal after such order. (Melton v. Boustred (2010) 183 Cal.App.4th 521,
527, fn. 1.) Here, no judgment of dismissal is in the record. However, “ ‘when
the trial court has sustained a demurrer [without leave to amend] to all of the
complaint’s causes of action, appellate courts may deem the order to
incorporate a judgment of dismissal, since all that is left to make the order
appealable is the formality of the entry of a dismissal order or judgment.’
[Citation.]” (Ibid.) That is the case here, and we deem the order on the

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 FACTUAL AND PROCEDURAL BACKGROUND
On March 6, 2020, collective plaintiffs filed a complaint for declaratory
and injunctive relief against the Attorney General of the State of California
(Attorney General); Alan Steinbrecher in his capacity as Chairman of the
Board of Trustees of the State Bar of California; Thomas Mampalam, M.D.;
Robert Binder, M.D.; Kathryn Klima, M.D.; Justin Davis, P.A.; Anthony
Allen, M.D.; East Bay Neurospine; Bay Imaging Consultants Medical Group;
Alta Bates Summit Berkeley; Alta Bates Summit Oakland; and Sutter
Health Hospital. We refer to Thomas Mampalam, M.D., Robert Binder, M.D.,
Kathryn Klima, M.D., Justin Davis, P.A., Anthony Allen, M.D., East Bay
Neurospine, Bay Imaging Consultants Medical Group, Alta Bates Summit
Berkeley, Alta Bates Summit Oakland, and Sutter Health Hospital
collectively as the healthcare defendants.
The healthcare defendants are also named in a separate, medical
malpractice lawsuit filed by Yu Luo and Wei Lin, in pro. per. (Super. Ct.
Alameda County, No. RG19048064). Luo and Lin allege claims for medical
negligence and loss of consortium and seek general damages; past and future
medical and related expenses; and “[e]conomic and non-economic damages
according to proof and not limited by California Civil Code § 3333.2, which is
unconstitutional . . . .”
In this action, collective plaintiffs challenge the constitutionality of two
provisions of MICRA: former Civil Code section 3333.2, which capped the
amount of damages a medical malpractice plaintiff may recover for
noneconomic damages at $250,000 (former Civ. Code, § 3333.2, subd. (b)), and
former Business and Professions Code section 6146, which limited the

demurrers to incorporate a judgment of dismissal and will review the order.
(Ibid.)

2
amount of contingency fees a law firm may charge medical malpractice
plaintiffs.2
The Attorney General demurred to collective plaintiffs’ original
complaint on the basis that each claim failed to state facts sufficient to
constitute a cause of action. The Attorney General argued that each of
collective plaintiffs’ constitutional challenges have been rejected by either the
California Supreme Court or the Courts of Appeal. On February 2, 2021, the
trial court sustained the demurrer with leave to amend. The order states
that “[i]n amending, plaintiffs shall allege the basis for the law firm plaintiffs’
standing to assert the claims alleged in this case.”3 Collective plaintiffs’ first

2 Effective January 1, 2023, the challenged statutes were amended by

Assembly Bill No. 35 (2021–2022 Reg. Sess.). Civil Code section 3333.2
currently states that civil liability for noneconomic damages against health
care providers in professional negligence actions filed on or after January 1,
2023, and not involving wrongful death, shall not exceed $350,000. (Civ.
Code, § 3333.2, subd. (b).) In actions involving wrongful death, noneconomic
damages shall not exceed $500,000. (Civ. Code, § 3333.2, subd. (c).) In
addition, the respective dollar amounts shall increase by set amounts
through January 1, 2033, and thereafter shall be adjusted for inflation each
year, by 2 percent. (Civ. Code, § 3333.2, subds. (g) & (h).)
Business and Professions Code section 6146 was amended, effective
January 1, 2023, to state that in negligence actions against healthcare
providers an attorney may contract for a contingency fee of up to 25 percent
of the net recovery prior to the filing of a complaint or arbitration demand or
33 percent of the net recovery amount after the filing of a complaint or
arbitration demand. (Bus. & Prof. Code, § 6146, subds. (a)(1) & (2), (c)(1).)
Additionally, in actions tried in court or arbitrated, the attorney or the
plaintiff may file a motion seeking an increased contingency percentage, for
good cause. (Bus. & Prof. Code, § 6146, subd. (a)(3).) Former Business and
Professions Code section 6146 provided the following schedule for
contingency fees: 40 percent of the first $50,000 recovered; 33 1/3 percent of
the next $50,000 recovered; 25 percent of the next $500,000 recovered; and
15 percent of any recovery amount over $600,000.
3 The healthcare defendants filed a motion for stay of action, which was

heard on the same day as the Attorney General’s demurrer. The healthcare

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amended complaint (FAC) contains the same claims as the original
complaint. The FAC alleges that Luo and Lin sought to retain CZR and
Bhanji Law Firm (law firm plaintiffs) to represent them in their medical
malpractice action against the healthcare defendants. However, because Luo
and Lin’s damages are primarily noneconomic, it is not economically feasible
for the law firm plaintiffs to represent them. Specifically, the FAC alleges
that the law firm plaintiffs will spend at least $200,000 in costs to prosecute
the case against the healthcare defendants and that given the $250,000
noneconomic damages cap and the contingency fee structure, the law firm
plaintiffs’ maximum attorney’s fee recovery is $20,000. Luo and Lin allegedly
were unable to locate any alternative lawyer willing to accept their
representation based on the MICRA fee schedule, and they filed their
separate complaint against the healthcare defendants in pro. per.
The FAC asserts that the rationale for adopting MICRA is no longer
valid. It alleges that since the 1988 enactment of rate regulation under
Proposition 103, medical malpractice insurance premiums have increased an
average of 0.5 percent per year and that it is not reasonably foreseeable that
rising medical malpractice insurance rates will threaten the availability of
health care. It further alleges that Civil Code section 3333.2’s cap on

defendants argued that the collective plaintiffs’ claims were not ripe for
determination because Luo and Lin’s medical malpractice action was pending
and there had been no determination of liability or the amount of
noneconomic damages. The trial court denied the motion in part, stating that
“plaintiffs’ claim that the challenged MICRA provisions impermissibly
restrict their access to the courts is ripe for adjudication.” However, it stayed
discovery pending a decision on the pleadings.

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noneconomic damages has not been adjusted for inflation since 19754 and
that based upon inflationary changes, $250,000 in 1975 is worth about
$55,000 today.
Collective plaintiffs claim that the combination of MICRA’s restrictions
on noneconomic damages and on contingency fee agreements deprive Luo and
Lin of the ability to obtain legal redress for the medical negligence they have
suffered. They allege the challenged statutes are unconstitutional based on
(1) the right to petition the government for redress of grievances under the
First Amendment and Fourteenth Amendment of the United States
Constitution and article I, section 3, of the California Constitution; (2) the
prohibition against government taking private property without just
compensation under the Fifth and Fourteenth Amendments of the United
States Constitution and article I, section 19, of the California Constitution;
(3) the equal protection clauses under the Fourteenth Amendment to the
United States Constitution and article I, section 7, and article IV, section 16,
of the California Constitution; (4) the due process clauses of the Fourteenth
Amendment to the United States Constitution and article I, section 7,
subdivision (a), of the California Constitution; and (5) the right to a jury trial
under article I, section 16, of the California Constitution. 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 restriction on attorneys’ fees, violate the U.S. and California
Constitutions.” (Sic.)

4 Plaintiffs’ opening brief acknowledges that Assembly Bill No. 35

(2021–2022 Reg. Sess.) recently amended Civil Code section 3333.2 and
Business and Professions Code section 6146. (See footnote 2, ante, page 2.)

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 The Attorney General demurred to the FAC, arguing first that the law
firm plaintiffs had no standing to challenge the constitutionality of MICRA
and that they failed to comply with the trial court’s prior order to allege the
basis for their standing in the amended complaint. The Attorney General
further argued that each of the collective plaintiffs’ constitutional challenges
have been rejected by either the California Supreme Court or the Courts of
Appeal and, therefore, they fail to state a claim. Defendant Steinbrecher
filed a motion to join the Attorney General’s demurrer. The healthcare
defendants also demurred to the FAC. They too argued that the law firm
plaintiffs lack standing. They further argued that the plaintiffs’ claims were
not ripe for adjudication because the asserted constitutional challenges
contemplate events that had not occurred, to wit, there had been no jury
verdict in the underlying medical malpractice litigation awarding
noneconomic damages over $250,000. In addition, the healthcare defendants
raised the same arguments as the Attorney General that each of the
constitutional challenges fails as a matter of law.
The trial court granted defendant Steinbrecher’s motion to join the
Attorney General’s demurrer and sustained the demurrers without leave to
amend. The order summarizes the changes in the FAC as follows: “The
amended complaint . . . omits the introductory language, and adds allegations
to the first cause of action for right to petition alleging that Roa v. Lodi
Memorial Group, Inc. (1985) 37 Cal.3d 920, did not address the right to
petition, so the court cannot read such a holding into the case, adds
allegations to the first through seventh cause of action arguing that Chan v.
Curran (2015) 237 Cal.App.4th 601, does not address plaintiffs’ constitutional
challenges because none of the alternative litigation options suggested in
Chan (i.e., that litigants could retain counsel on an hourly basis, seek

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pro bono assistance, or litigate in pro per), are available to them because of
either lack of competence by Mr. Luo, or indigence.” The order further
addresses each of collective plaintiffs’ constitutional challenges and finds that
the issues raised have been rejected by prior appellate and California
Supreme Court decisions. The trial court denied leave to amend because the
collective plaintiffs failed to demonstrate how they could amend their
complaint to overcome the legal arguments raised in the demurrer, and it
dismissed the complaint. The trial court did not address the Attorney
General’s argument that the law firm plaintiffs lacked standing. However, it
rejected the healthcare defendants’ argument that the claims were not ripe,
stating that its prior order denying the healthcare defendants’ motion to stay
rejected the same argument.
DISCUSSION
I. Standard of Review
On an appeal from a judgment of dismissal after a demurrer is
sustained without leave to amend, we first review the complaint de novo to
determine whether it alleges facts sufficient to state a cause of action under
any legal theory. (San Francisco Unified School Dist. ex rel. Contreras v.
Laidlaw Transit, Inc. (2010) 182 Cal.App.4th 438, 444–445.) We treat the
demurrer as admitting all material facts properly pleaded but not
contentions, deductions or conclusions of fact or law. (Id. at p. 445.) Next, we
determine whether the trial court abused its discretion by sustaining the
demurrer without leave to amend. (Morris v. JPMorgan Chase Bank, N.A.
(2022) 78 Cal.App.5th 279, 292.) To establish an abuse of discretion,
plaintiffs must show that there is a reasonable possibility they could cure the
defect by amending the complaint. (Ibid.)

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II. MICRA
MICRA was enacted in 1975 in response to a healthcare crisis in
California. (Chan v. Curran (2015) 237 Cal.App.4th 601, 607–608 (Chan).)
“ ‘The Legislature . . . enacted a comprehensive, multifaceted scheme
designed to address a perceived threat to our state’s health care system by
reducing the cost of medical malpractice insurance.’ ” (Id. at p. 608.) Civil
Code section 3333.2 (capping noneconomic damages) and Business and
Professions Code section 6146 (limiting contingency fees in medical
malpractice actions) are both part of MICRA’s interrelated provisions. (Ibid.)
III. Analysis
A. Standing and Ripeness
Both the Attorney General and the healthcare defendants argued in
their demurrers that the law firm plaintiffs lack standing because they have
suffered no injury and the FAC does not allege a violation of the law firm
plaintiffs’ constitutional rights. The trial court did not address this argument
either at the hearing or in its order. On appeal, the Attorney General and
the healthcare defendants raise the issue of the law firm plaintiffs’ standing
in the respondents’ briefs.
The Attorney General further argues, for the first time on appeal, that
Luo and Lin have no standing because they have not alleged how they have
been injured by the challenged statutes. The healthcare defendants, in the
trial court and on appeal, raise the related issue of ripeness, arguing that Luo
and Lin’s claims are not ripe for adjudication because they contemplate
events that have yet to occur. They argue that there has been no
determination of liability or noneconomic damages in the underlying
malpractice action.

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 We question whether the plaintiffs, particularly the law firm plaintiffs,
have standing. (See Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 414.)5
However, we do not need to address these issues because we affirm the trial
court’s sustaining the demurrer on the basis that none of the plaintiffs’
constitutional claims state facts sufficient to constitute a cause of action.
Before reaching the constitutional arguments, we address collective
plaintiffs’ contention that the trial court’s order should be reversed because
the granting of the demurrer was procedurally improper. They assert that
because they have alleged an actual controversy relating to the legal rights
and duties of the parties, their claim is sufficient to survive a demurrer and
they should be permitted to develop an evidentiary record before the
constitutional issues are resolved. Collective plaintiffs argue that the FAC
alleges facts that demonstrate “a constitutionally-significant change in
circumstances such that MICRA’s cap on non-economic damages and limit on
contingency fee can no longer pass constitutional muster.” They refer to their
allegations regarding the Legislature’s original basis for enacting MICRA to

5 The respondents notified us of the recent Fifth Appellate District

decision in Dominguez v. Bonta, supra, 87 Cal.App.5th 389, which affirmed a
dismissal of a lawsuit filed by a medical malpractice plaintiff and CZR
alleging the same constitutional challenges to MICRA as in this case. In
Dominguez, the medical malpractice plaintiffs alleged they were currently
paying their counsel an hourly rate to prosecute the underlying medical
malpractice action but that they could not afford to continue doing so and
that they could only afford to be represented on a contingency basis. (Id. at p.
395.) The trial court sustained the Attorney General’s demurrer without
leave to amend, finding that none of the plaintiffs had standing because they
did not allege injury. (Id. at p. 397.) The trial court further found that the
constitutional issues raised in the complaint had previously been litigated
and rejected in other cases and that the relief sought in plaintiffs’ complaint
“ ‘is more appropriately sought before the Legislature.’ ” (Ibid.) The Fifth
District Court of Appeal affirmed the trial court’s ruling on the basis that the
plaintiffs lacked standing. (Id. at pp. 412, 417, 419.)

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address an insurance and healthcare crisis, and their factual assertions that
45 years later, insurance rate increases are moderate, insurance companies
are profitable, there is significant competition in the insurance market, and a
large portion of payments made by insurers are for defense costs rather than
settlement or verdict payments to injured parties.
As explained in Coffman Specialties, Inc. v. Department of
Transportation (2009) 176 Cal.App.4th 1135, it is well settled that the
validity of both facial and as-applied challenges to the constitutionality of
statutes may be decided on demurrer. (Id. at p. 1144, citing Kasler v. Lockyer
(2000) 23 Cal.4th 472, 478; Breneric Associates v. City of Del Mar (1998) 69
Cal.App.4th 166, 172; Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 509–510
[“the propriety of resolving a constitutional claim on demurrer does not
depend upon whether a challenge is styled facial or as applied; rather, it
depends on whether the complaint sets forth a claim that can be resolved as a
question of law”].) As we explain post, plaintiffs “changed circumstances”
allegations have been rejected by other courts and fail to establish that the
challenged statutes violate the plaintiffs’ constitutional rights.
B. Constitutional Challenges
As our colleagues in Division One summarized in Chan, “During the
1980’s the Supreme Court upheld many of MICRA’s provisions against
constitutional challenges, including section 3333.2 (Fein [v. Permanente
Medical Group (1985)] 38 Cal.3d [137,] 159 [upholding § 3333.2]; Roa v. Lodi
Medical Group, Inc. (1985) 37 Cal.3d 920, 931–932 [211 Cal.Rptr. 77, 695
P.2d 164] (Roa) [upholding Bus. & Prof. Code, § 6146, limiting contingency
fees]; Barme v. Wood (1984) 37 Cal.3d 174 [207 Cal.Rptr. 816, 689 P.2d 446]
(Barme) [upholding § 3333.1, limiting collateral source recovery from
malpractice defendants]; American Bank [& Trust Co. v. Community Hospital

10
(1984)] 36 Cal.3d [359,] 372 [upholding Code Civ. Proc., § 667.6, governing
periodic payouts of and imposing some limits on future damages].)” (Chan,
supra, 237 Cal.App.4th at p. 608.) We analyze collective plaintiffs’ claims
and further discuss the relevant precedents post.
1. Right to Petition
Collective plaintiffs allege that the challenged statutes infringe on their
right to petition the courts. They argue the challenged statutes effectively
preclude them from prosecuting their medical malpractice action. They
further contend that their claims involve “ ‘litigation funding decisions,’ ” and
they cite Buckley v. Valeo (1976) 424 U.S. 1 (Buckley) in support of their
contention that the strict scrutiny standard applies.6
We find that collective plaintiffs’ claim based on a violation of the right
to petition the courts fails as a matter of law. First, the FAC alleges that Luo
and Lin filed a medical malpractice complaint in pro. per.7 Thus, the
challenged statutes have not prevented the plaintiffs from accessing the
courts. (Chan, supra, 237 Cal.App.4th at p. 627 [holding MICRA’s
noneconomic damages cap does not prevent access to courts].) Very similar
arguments were made and rejected in Roa v. Lodi Medical Group, Inc. (1985)
37 Cal.3d 920 (Roa) and Chan. In Roa, the California Supreme Court

6 Under the strict scrutiny standard of review, a statute will be upheld

if the state establishes a compelling interest justifying the statute and
demonstrates that distinctions in the statute are necessary to further the
state’s compelling interest. (People v. Yang (2022) 78 Cal.App.5th 120, 136.)
7 The FAC alleges that plaintiffs lack the mental capacity to represent

themselves and that the court in the underlying medical malpractice case
appointed a guardian ad litem for Luo because he suffers from dementia and
brain damage. These allegations do not alter our determination that the
challenged statutes do not impermissibly infringe on the plaintiffs’ right to
petition the courts. Their complaint, filed in pro. per., may proceed with
Luo’s interest being represented through his guardian ad litem.

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considered a constitutional challenge to Business and Professions Code
section 6146. It stated that “[s]tatutory limits on attorney fees are not at all
uncommon, either in California or throughout the country generally,” and
that the validity of such legislative regulation of attorney fees is well
established. (Roa, at pp. 926–927.) Roa concluded that “legislative ceilings
on attorney fees are in no respect ‘constitutionally suspect’ or subject to
‘strict’ judicial scrutiny.” (Id. at p. 927.)
Collective plaintiffs attempt to distinguish Roa by arguing that it did
not consider arguments relating to the right to petition but, instead, only
considered whether Business and Professions Code section 6146 violated due
process, equal protection, and the separation of powers. We decline to read
Roa so narrowly.
Roa states that the plaintiffs’ constitutional arguments were based on
alleged violations of due process, equal protection, and separation of powers.
However, the court also addressed, and rejected, an argument made by one
amicus curiae that the statute violated the right to petition and should be
subject to a strict scrutiny analysis. (Roa, supra, 37 Cal.3d at pp. 924, 927,
fn. 5.) The amicus curiae’s argument relied on Buckley, supra, 424 U.S. 1,
51–54, which invalidated, on First Amendment grounds, statutory limits on
the amount candidates for public office can spend on their campaigns. Roa
rejected the amicus curiae’s argument that MICRA violates plaintiffs’ right
under the First Amendment to decide for themselves how much to spend on
attorneys’ fees. (Roa, supra, 37 Cal.3d at p. 927, fn. 5.) The California
Supreme Court described the argument as “creative” but found “its logic
clearly proves too much” in that it would preclude any statutory limitation on
attorneys’ fees. (Ibid.) Here, plaintiffs similarly argue that Buckley’s holding
applying a strict scrutiny standard should be extended to apply to them

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because “[i]n the judicial context, the expenditure of money for attorneys’ fees
is no less essential to the exercise of First Amendment rights.” This
argument was rejected in Roa. (Roa, at p. 927, fn. 5.)
Collective plaintiffs further attempt to distinguish Roa by arguing that
they, in contrast to the plaintiffs in Roa, have pleaded facts supporting their
claim. Collective plaintiffs are correct that Roa references the lack of any
factual support for the plaintiffs’ factual assertions. (Roa, supra, 37 Cal.3d at
p. 930.) The procedural posture in Roa was an appeal from an attorney fees
order entered after the trial court approved settlement of a medical
malpractice action. (Id. at p. 924.) The attorney fees order rejected the
plaintiffs’ constitutional challenges to Business and Professions Code section
6146 and the plaintiffs’ request to award a contingency fee at a percentage
higher than that permitted under the statute. (Roa, at p. 924.) Thus, the Roa
plaintiffs were able to retain counsel and pursue their claim and had no
factual support for their claimed constitutional violations based on an
inability to retain counsel in medical malpractice actions.
In contrast, Luo and Lin here allege that they have not been able to
retain counsel due to the fee limitation and the nonecomonic damages cap.
However, we do not agree that these facts are sufficient to state a claim that
the challenged statutes are unconstitutional because they infringe on their
right to petition the government for redress of grievances. Luo and Lin’s
alleged inability to retain an attorney has not prevented them from accessing
the courts, which they have done in pro. per. As our colleagues in Division
One explained in Chan, “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

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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.) Although Chan does not
specifically address the right to petition, it analyzes the same alleged harm in
the context of a due process claim and finds that “while 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.” (Ibid.) Similarly, here, although it is
alleged that MICRA’s contingency fee limitation and the noneconomic
damages cap have resulted in Luo and Lin’s inability to retain an attorney,
this does not violate collective plaintiffs’ right to petition the government for
redress of claims. (Ibid.)
2. Challenged MICRA Provisions Do Not Constitute an
Unconstitutional Taking
Collective plaintiffs allege that the challenged provisions are
unconstitutional because they constitute a taking of private property without
just compensation, which is prohibited by article I of the California
Constitution and the Fifth and Fourteenth Amendments to the United States
Constitution. They assert that Luo and Lin have a property right in the
noneconomic damages owed to them by the healthcare defendants. However,
they concede that the California Supreme Court rejected the same claim in
Fein v. Permanente Medical Group (1985) 38 Cal.3d 137. Fein explained that
“ ‘[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.’ ” (Fein, at p. 157,
italics omitted.) Fein held that MICRA’s noneconomic damages cap was
rationally related to the Legislature’s objective of reducing the costs of
malpractice insurance and healthcare. (Id. at pp. 158–159.)

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 Collective plaintiffs argue that Fein’s “analysis is improper,” and they
cite Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972 (Yoshioka) in
support of their position that the noneconomic damages cap deprives them of
“every reasonable method of securing just compensation.” Not only are we
bound by Fein, but Yoshioka does not support collective plaintiffs’ position.
Yoshioka rejected a constitutional challenge to the application of a statute
prohibiting uninsured motorists and drunk drivers from recovering
noneconomic damages in any action arising out of the operation or use of a
motor vehicle. (Yoshioka, at p. 978.) The court stated that “a state and its
people may alter” the “right to recover specific types of damages” and that
“[s]uch alteration is only forbidden when at the very least the party is
deprived of every reasonable method of securing just compensation. This does
not encompass instances where the plaintiff would not recover as much as he
would have had the former rule continued.” (Id. at p. 982.) Collective
plaintiffs argue that the cap on noneconomic damages deprives plaintiffs of
“the entirety of damages,” but this is not so. Unlike in Yoshioka, where the
statute at issue barred all noneconomic damages and was still upheld against
constitutional challenges (id. at pp. 978, 993), the MICRA cap at issue here
allows for noneconomic damages up to $250,000.8
3. Equal Protection
Collective plaintiffs assert that the challenged statutes deny them
equal protection of the laws both facially and as applied. They claim the

8 Collective plaintiffs’ opening brief references wrongful death claims

involving non-wage earners and newborns, who do not have economic
damages. However, as the defendants note, the FAC does not include a
wrongful death claim; nor does it involve injury to a newborn. It appears this
reference in plaintiffs’ opening brief may be related to another similar action
filed by CZR in one of the actions the trial court judicially noticed.

15
challenged statutes arbitrarily negatively impact only medical malpractice
victims and disproportionally burden the most seriously injured medical
malpractice victims. They further complain that the challenged statutes only
limit malpractice plaintiffs’ litigation expenditures and not defense costs
incurred by malpractice defendants and their insurers. Finally, they assert
the challenged statutes treat wealthy plaintiffs differently because wealthy
plaintiffs are able to pay hourly attorney fees.
The California Supreme Court and several Courts of Appeal have
considered and rejected similar claims. (Fein, supra, 38 Cal.3d at pp. 162–
164 [noneconomic damages cap does not violate equal protection principles
because the statutory classifications are rationally related to the legislative
purpose]; Roa, supra, 37 Cal.3d at pp. 930–933 [contingency fee limits do not
violate equal protection because they are rationally related to the
Legislature’s objective to reduce malpractice costs]; Chan, supra, 237
Cal.App.4th at p. 621 [rejects equal protection challenge to noneconomic
damages cap]; Stinnett v. Tam (2011) 198 Cal.App.4th 1412, 1432 [same].)
Collective plaintiffs attempt to circumvent this settled authority with
two arguments. First, they assert that circumstances have changed since
MICRA’s passage in 1975 and therefore the statute is no longer
constitutional. Second, they assert that the challenged statutes must be
evaluated under a strict scrutiny analysis because they infringe on plaintiffs’
fundamental right to petition the government and due process right to retain
counsel, and they “instill the wealth classification . . . .” Neither argument is
compelling.
Chan rejected the same “changed circumstances” argument. There, the
plaintiffs argued that there was no longer a medical malpractice insurance
crisis; Proposition 103, under which the California Insurance Commissioner

16
sets medical malpractice rates, stabilized the insurance market; and the
impact of inflation significantly decreased the economic significance of the
$250,000 noneconomic damages cap. (Chan, supra, 237 Cal.App.4th at p.
613.) Chan explained that when Fein was decided in 1985, the majority
disregarded objections made by the dissent that the malpractice insurance
crisis was “ ‘fading into the past’ ” and that inflation would reduce the value
of the $250,000 noneconomic damages cap. (Id. at p. 616.) “Thus, the very
circumstances that underlie Chan’s purported ‘changed circumstances’
argument were already emergent and rejected when the court decided Fein.”
(Id. at p. 617.)
In Chan, the record included attorney declarations “claiming 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”; that MICRA discourages attorneys from taking medical malpractice
cases where economic damages are not large; and the costs and legal fees
incurred in Chan’s case exceeded the total jury award after the MICRA
adjustments. (Chan, supra, 237 Cal.App.4th at pp. 609–610.) The record
also included the declaration of an economist who stated that $250,000 in
2012 dollars equaled only $59,000 in 1975 dollars. (Id. at p. 609.) Collective
plaintiffs, here, make similar assertions of fact in their FAC which were
considered and rejected in Chan. (Id. at pp. 609–610; see Stinnett v. Tam,
supra, 198 Cal.App.4th at p. 1432 [“The fact that [plaintiff] might prefer a
different statute, indexed for inflation, does not render unconstitutional the
statute the Legislature enacted. ‘ “We are not equipped to decide desirability;
and a court cannot eliminate measures which do not happen to suit its tastes
if its [sic] seeks to maintain a democratic system. The forum for correction of
ill-considered legislation is a responsive legislature” ’ ”].)

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 Collective plaintiffs make a cursory argument that their claims should
be analyzed under the strict scrutiny test because of the “wealth
classifications inherent in MICRA’s caps” combined with the challenged
statutes’ violation of the right to petition the government and due process
right to retain counsel. We disagree. Equal protection claims are evaluated
under the rational relationship test when the statutory disparity implicates
no suspect class or fundamental right. (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 881.) As discussed ante, the challenged statutes do not
infringe on the right to petition the government; nor do they violate due
process.9 Nor is wealth level, by itself, a suspect class that warrants strict
scrutiny. (Kadrmas v. Dickinson Public Schools (1988) 487 U.S. 450, 458.)
Given that the challenged statutes do not infringe on collective
plaintiffs’ fundamental rights, their reliance on Serrano v. Priest (1976) 18
Cal.3d 728 is misplaced. Serrano involved an equal protection challenge to
the state public school financing system. (Id. at p. 735.) The California
Supreme Court specifically did not determine that all government
classifications based on wealth are subject to a strict scrutiny analysis under
California’s equal protection provisions. (Id. at p. 766, fn. 45.) Instead, it
found that where the classification is based on wealth and “clearly affects the
fundamental interest of the children . . . in education, . . . this combination of
factors warrants strict judicial scrutiny under our state equal protection
provisions.” (Ibid.) Collective plaintiffs do not argue that strict scrutiny
should apply solely because the challenged statutes negatively impact them

9 To the extent the plaintiffs are asserting that they have a

fundamental right to counsel in civil actions, this is contrary to “the general
rule that there ‘is no due process right to counsel in civil cases.’ ” (Chan,
supra, 237 Cal.App.4th at p. 625.)

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based on their income level. Nor do they cite any case authority in support of
such a claim.
4. Due Process
Collective plaintiffs’ due process claims reassert their prior allegations
based on changed circumstances, the right to petition the government, and
equal protection of the laws. These claims fail for the same reasons. (Fein,
supra, 38 Cal.3d at pp. 158–159 [noneconomic damages cap does not violate
due process because it is rationally related to legitimate state interest in
reducing insurance premiums]; Roa, supra, 37 Cal.3d at p. 930 [contingency
fee limit does not violate due process]; Chan, supra, 237 Cal.App.4th at p. 627
[“while 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”].)
5. Right to Jury Trial
The FAC alleges that MICRA’s cap on noneconomic damages violates
the collective plaintiffs’ right to a jury trial. Collective plaintiffs acknowledge
in both their FAC and their opening brief that this argument was rejected in
Chan. However, they assert, without further analysis, their “belie[f] [that]
Chan was wrongly decided” and that we should review their claim. We agree
with our colleagues’ thorough analysis of this issue in Chan and with their
conclusion rejecting the right to jury trial challenge to MICRA’s noneconomic
damages cap. (Chan, supra, 237 Cal.App.4th at p. 629 [finding jury trial
right challenge is “ ‘an indirect attack upon the Legislature’s power to place a
cap on damages’ ” and that “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’ ”]; see Stinnett v. Tam, supra, 198 Cal.App.4th at p. 1433 [noting

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multiple cases holding “Legislature possesses broad authority to modify the
scope and nature of recoverable damages”]; Yates v. Pollock (1987) 194
Cal.App.3d 195, 200 [contention that noneconomic damages cap
unconstitutionally infringes on right to jury trial is indirect attack on
Legislature’s power to place a cap on damages].)
C. Leave to Amend
Collective plaintiffs do not argue that the trial court abused its
discretion in denying leave to amend a second time. Thus, they have not
established that there is a reasonable probability they could amend their
complaint to overcome the legal arguments raised in the demurrer. (Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879–880.)10
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on
appeal.

10 The healthcare defendants requested that we take judicial notice of a

complaint filed by the law firm plaintiffs on behalf of Luo and Lin against
multiple defendants alleging violation of residents rights, elder abuse and
neglect, negligence, violation of the Unruh Civil Rights Act, and negligent
infliction of emotional distress. They also request that we take judicial notice
of the register of actions indicating the plaintiffs filed a request for dismissal
of the complaint. We find these documents are not necessary to our analysis
of the issues presented in the appeal, and we deny the healthcare defendants’
request for judicial notice.

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 _________________________
Jackson, P. J.

WE CONCUR:

_________________________
Simons, J.

_________________________
Chou, J.

A164164/Luo v. Bonta

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