Tracy Dominguez, Ruben Xavier DeLeon claimed that Mercy Hospital of Bakersfield, Arthur Park, M.D., and Hans C. Yu, D.O.provided negligent medical care to Demi Ruben Dominguez and Malakhi Ruben DeLeon resulting in their deaths. They claimed to be the wrongful death heirs to the decedents,

The heirs sought to retain the legal services of the firm of Carpenter, Zuckerman & Rowley (CZR) to represent them in the medical malpractice action against the healthcare defendants. However, CZR claimed it was not economically feasible for it to represent heirs on a contingency basis given the limitations on recovery in malpractice cases for noneconomic losses to $250,000 under Civil Code section 3333.2 and the limitations on contingency fee arrangements under Business and Professions Code section 6146.

CZR said however that it is ready, willing, and able to represent the 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.

On May 26, 2020, plaintiffs filed a complaint for declaratory and injunctive relief against the California Attorney General, and the healthcare defendants and 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.

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.

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.”

The trial court 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 of Appeal affirmed in the published case of Dominguez v Bonta – F082053 (January 2023).

The challenged statutes were enacted in 1975 as part of The Medical Injury Compensation Reform Act (MICRA). In enacting MICRA, the Legislature found that ‘there was a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs.”

Plaintiffs alleged that 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 Amendment and Fourteenth Amendment of the United States Constitution and article I, section 3 of the California Constitution;
(2) constitute “a government taking [of] private property without just compensation” in violation of the Fifth Amendment and Fourteenth Amendment of the United States Constitution and article I, section 19 of the California Constitution;
(3) “violate the equal protection provisions” provided by the Fourteenth Amendment to the United States Constitution and article I, section 7 and article IV, section 16 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, subdivision (a) of the California Constitution; ; and
(5) deprive heirs of their “right to a jury trial as protected by” article I, section 16 of the California Constitution.

The Court reviewed a select number of prior decisions addressing the constitutionality of the challenged statutes, including one of the earliest MICRA-related cases decided by the California Supreme Court, American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359. However because it concluded “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.”

Plaintiffs’ cause of action for declaratory relief is derivative of plaintiffs’ other claims.for medical malpractice in another action. The “actual controversy” language in Code of Civil Procedure section 1060, which is required to establish standing, does not embrace controversies that are ‘conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court. Here plaintiffs’ alleged injuries are neither concrete nor actual, and that they are, at the present time, conjectural and hypothetical.

Thus the court concluded that plaintiffs lack standing to challenge Civil Code section 3333.2 and Business and Professions Code section 6146.