1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

YU LUO et al.,

Plaintiffs and Appellants,

v.

ROB BONTA, as Attorney General, 

etc., et al.,

Defendants and Respondents.

 A164164

 (Alameda County

 Super. Ct. No. RG20057577)

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 
2

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.)
3

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 
4

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.
5

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.)
6

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 
7

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.)
8

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.
9

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.)
10

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 
11

(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.
12

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
13

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 
14

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.)
15

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.
16

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 
17

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” ’ ”].)
18

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.)
19

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 
20

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