Filed 9/15/14 Marquez v. The County of Riverside CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



GEORGE MARQUEZ, JR., a Minor, etc.,

         Plaintiff and Respondent,                                       E057369

v.                                                                       (Super.Ct.No. RIC10020000)

THE COUNTY OF RIVERSIDE et al.,                                          OPINION

         Defendants;

NATHANIEL J. FRIEDMAN et al.,

         Objectors and Appellants.



         APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.

Affirmed with directions.

         Nathaniel J. Friedman for Objectors and Appellants.

         No appearance by Respondent.

                                                             I

                                                 INTRODUCTION

         After the jury returned a verdict in favor of plaintiff George Marquez, Jr., a minor,
                                                             1
in a medical malpractice action against Guillermo Gomez, M.D., the trial court entered an

order approving compromise, which included $158,000 in attorney fees. Several months

later, the trial court conducted an OSC1 hearing regarding reducing the attorney fees

award and, over plaintiff’s attorney’s objection, ordered the fees reduced to $99,416.67.

The balance, $58,583.33, was ordered deposited in the minor’s blocked account.

       Plaintiff’s attorneys, Nathaniel Friedman and Nathaniel Friedman, a professional

corporation (Friedman), appeal the trial court order entered on October 3, 2012, revoking

the May 3, 2012 order approving compromise.2 Friedman contends the trial court lacked

jurisdiction to reconsider and modify the order approving compromise, was estopped

from reducing the original attorney fees award, and erred in reducing the attorney fees

award based on MICRA.3 Friedman also argues that the judge who reconsidered and

reduced the attorney fees award, did not have authority to reconsider the order of another

judge in the same court. Friedman urges this court to disregard MICRA Business and

Professions Code section 61464 on the ground the statute has outlived its usefulness and

is unconstitutional.


       1   Order to show cause.
       2   Friedman was not a party in the underlying lawsuit. He only represented the
plaintiff in the lawsuit.
       3  Medical Injury Compensation Reform Act of 1975 (Stats. 1975, 2d Ex. Sess.,
ch. 1, § 25, pp. 3969-3970, ch. 2, § 1.192, pp. 3991-3992).

       4 Unless otherwise noted, all statutory references are to the Business and
Professions Code.


                                            2
         We reject Friedman’s contentions and affirm the judgment. We conclude the trial

court had jurisdiction to reconsider and reduce the original attorney fees award, and

appropriately did so in accordance with MICRA limitations on attorney fees awarded in

medical malpractice actions.

                                             II

                      FACTS AND PROCEDURAL BACKGROUND

         In September 2010, Imelda Martinez and Jorge Marquez, the parents of George

Marquez, Jr. retained Friedman to represent their son, George Marquez, Jr., in a medical

malpractice lawsuit. The attorney contingency fee agreement stated that if the case was

resolved by settlement or judgment, Friedman would be entitled to MICRA fees.

         In October 2010, George Marquez, Jr., through his guardian ad litem, Jorge

Marquez (plaintiff), filed a complaint, alleging medical malpractice against defendants

County of Riverside, doing business as Riverside County Regional Medical Center, A.

Romain, R.N., Guillermo Gomez, M.D., and Herb S. Brar, M.D.5 Plaintiff alleged Dr.

Gomez should have performed a cesarean section on Imelda Martinez, instead of a

vaginal delivery. His failure caused George Marquez, Jr., to suffer shoulder dystocia6 at

birth.


         5
         Defendants County of Riverside doing business as Riverside County Regional
Medical Center, Herb S. Brar, M.D., and A. Romain, R.N., were dismissed from the
action prior to trial.

         6“Slow or difficult labor or delivery.” (Merriam-Webster’s Collegiate Dict.
(10th ed. 1996) p. 361.) During George Marquez, Jr.’s, birth, Dr. Gomez “pulled on
Plaintiff’s head in an attempt to alleviate the shoulder dystocia. As a consequence,
                                                                [footnote continued on next page]

                                             3
        In April 2012, the case was tried to a jury, resulting in a verdict in favor of George

Marquez, Jr., and against defendant Guillermo Gomez, M.D., in the amount of $477,674.

During mediation after the trial, the parties reached a settlement of $395,000, not

including interest and costs. Thereafter, plaintiffs’ attorney, Friedman, filed a petition

and amended petition to approve a minor’s compromise (Petition). In the Petition,

Friedman requested $158,000 in attorney fees to be paid from the $395,000 in settlement

proceeds. In support of the Petition, Friedman provided a declaration stating that the

amount of requested attorney fees was calculated based on the “reasonable fee standard,”

under California Rules of Court rule 7.955.7 Friedman further stated that the requested

$158,000 in attorney fees amounted to 40 percent of the plaintiff’s gross recovery, and

was reasonable and “proportionate to the value of the services performed, given the

relevant considerations.”

        By court order dated May 3, 2012, Judge Pro Tem Swortwood approved the

minor’s compromise. During the hearing on the Petition, the court noted that the

settlement would become final upon Jorge Marquez signing the settlement documents.

The settlement proceeds were ordered deposited in a blocked account for the minor. The

court further ordered a review hearing set for August 1, 2012, to confirm the settlement

proceeds had been deposited in the minor’s blocked account. On May 4, 2012, the case

[footnote continued from previous page]
George suffered injury to the brachial plexus, “[a] network of nerves lying mostly in the
armpit and supplying nerves to the chest, shoulder, and arm.” (Merriam-Webster’s
Collegiate Dict. (10th ed. 1996) p. 137.)

        7   Undesignated rule references are to the California Rules of Court.

                                               4
was dismissed with prejudice. On May 7, 2012, $164,787 of the settlement proceeds was

deposited in a blocked account for George Marques, Jr. On May 16, 2012, plaintiff filed

a receipt and acknowledgment of order for the deposit of money into a blocked account.

       In August 2012, Commissioner Burgess, on the court’s own motion, set an OSC

hearing regarding why the May 3, 2012 order approving compromise should not be

reconsidered pursuant to section 6146, subdivision (a), and rule 7.955, and whether the

attorney fees award should be reduced to $99,416.67, with the remaining $58,583.33

ordered deposited in the minor’s blocked account.

       In response to the OSC notice, Friedman filed a declaration stating that the trial

court lacked jurisdiction after the trial court clerk entered on May 4, 2012, a dismissal

without prejudice, as requested by plaintiff. Friedman asserted that the court was

estopped from reducing the attorney fees award because, in reliance on the court’s May 3,

2012 order approving compromise, Friedman had disbursed the $58,583 in attorney fees.

Friedman further argued that under the recent case of Gonzalez v. Chen (2011) 197

Cal.App.4th 881 (Gonzalez), MICRA section 6146, subdivision (a), was inapplicable and

rule 9.755 exclusively controlled the amount of attorney fees awarded.

       In a supplemental declaration, Friedman noted he had not stipulated to a

commissioner hearing the matter and asserted that Commissioner Burgess erred in

deciding the matter and was subject to liability for money damages if she did not dismiss

the OSC, since the commissioner was not immune from liability. The trial court

concluded Friedman had refused to stipulate to Burgess conducting the OSC hearing and

therefore assigned the matter to Judge Cahraman. Friedman filed a peremptory challenge

                                             5
for cause under Code of Civil Procedure section 170.6 against Judge Cahraman. Judge

Cahraman initially denied the challenge and then later, after reconsideration, granted it.

The matter was transferred to Judge Fisher.

       On October 3, 2012, Judge Fisher heard the OSC regarding reducing attorney fees

approved in Judge Swortwood’s May 3, 2012 order approving compromise. After

reviewing the court file, including the petition for order approving compromise and

Friedman’s declarations opposing reducing the attorney fees award, Judge Fisher ordered

attorney fees reduced from $158,000, to $99,416.67, which Judge Fisher concluded was

the maximum attorney fees permitted under section 6146.8 Judge Fisher further ordered

that Friedman return the excess sum of $58,583.33 to the minor by depositing the amount

in the minor’s blocked account. The court set an OSC hearing re: status of deposit of the

$58,583.33 in George Marquez, Jr.’s, blocked account. On October 5, 2012, the court

clerk sent notice of the court’s order only to Friedman and his attorney who represented

him during the hearing.

       8  Since there is no respondent or respondent’s brief explaining why the trial court
ruled as it did, this court appreciates Judge Fisher’s clear and concise statement of the law
and facts relied upon in concluding the trial court had jurisdiction to hear the matter and
order attorney fees reduced. As noted in Gonzalez v. Chen, supra, 197 Cal.App.4th at
page 887, which involved similar circumstances, “[t]he defendant in a medical
malpractice case has no interest in how the settlement proceeds are allocated. Once the
malpractice carrier has reached a settlement figure approved by the court, the health care
provider is out of the picture. Further, the minor’s guardian ad litem, often a relative, is
rarely skilled in the law and usually depends on the minor’s attorney for advice. If the
minor’s attorney argues, as he did here, that he is entitled to additional attorney fees
under MICRA, the guardian ad litem may not even question the argument. The trial
court itself must develop and resolve any counterarguments on behalf of the minor, lest
the attorney receive an excessive award of fees.”


                                              6
                                             III

         JURISDICTION TO MODIFY ORDER APPROVING COMPROMISE

       Before reaching the attorney fees issue on the merits, this court must determine

whether the trial court on October 3, 2012, had jurisdiction to reduce the May 3, 2012

attorney fee award, after the trial court had entered an order approving compromise and

dismissed the case with prejudice. The trial court (Judge Fisher) concluded that under

Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), In re Marriage of Barthold

(2008) 158 Cal.App.4th 1301 (Barthold), and New Tech Developments v. Bank of Nova

Scotia (1987) 191 Cal.App.3d 1065 (New Tech), the trial court had inherent authority to

reconsider the May 3, 2012 order approving compromise.

       In Le Francois, supra, 35 Cal.4th 1094, the trial court denied the defendants’

motion for summary judgment. The defendants filed another summary judgment motion

based on the same grounds and facts. The motion was transferred to a different judge

than the one who decided the previous summary judgment motion. The trial court

granted the second motion. (Id. at pp. 1096-1097.) The California Supreme Court held

in Le Francois that “sections 437c, subdivision (f)(2), and 1008 prohibit a party from

making renewed motions not based on new facts or law, but do not limit a court’s ability

to reconsider its previous interim orders on its own motion, as long as it gives the parties

notice that it may do so and a reasonable opportunity to litigate the question.” (Id. at p.

1097.) The court in Le Francois reversed because the second judge had not decided the

matter on its own motion. (Id. at p. 1109.) Here, the OSC to reduce attorney fees was

brought on the court’s own motion.

                                              7
         The Le Francois court stated in a footnote that it was not addressing an opinion on

“when and under what circumstances one judge may revisit a ruling of another judge.”

(Le Francois, supra, 35 Cal.4th at p. 1097, fn. 2.) The court in New Tech, addressed this

issue. In New Tech, supra, 191 Cal.App.3d 1065, a judge pro tem granted the plaintiff a

preliminary injunction. Later, the defendant moved to dissolve the preliminary

injunction. A regular judge dissolved the preliminary injunction, and the plaintiff

appealed. On appeal, the court in New Tech rejected the defendant’s contention that the

trial court did not have jurisdiction to hear the defendant’s motion to dissolve the

injunction because the defendant’s motion was not heard by the same judge who granted

the injunction. (Id. at pp. 1067, 1070.)

         As the court in New Tech explained, “The general rule is once a matter has been

assigned to one department of the superior court for hearing and determination, and there

has been no final disposition, ‘it is beyond the jurisdictional authority of another

department of the same court to interfere with the exercise of the power of the department

to which the proceeding has been so assigned.’ [Citation.] The policy basis for such a

rule is clear. It prevents the certain confusion generated by ‘conflicting adjudications of

the same subject-matter by different departments of the one court’ (ibid.) and invidious

forum-shopping within the superior court.” (New Tech, supra, 191 Cal.App.3d at p.

1069.)

         As in New Tech, in the instant case, the first order (on May 3, 2012) was entered

by a judge pro tem and the subsequent order setting aside the initial order was entered by

a regular judge. The court in New Tech rejected the defendant’s objection to the regular

                                              8
judge deciding the matter instead of the original judge pro tem. The New Tech court

explained: “‘The appointment of a temporary judge to hear a particular “cause” carries

with it the power to act until the final determination of that proceeding.’ [Citation.] This

means the judge pro tempore has the authority to hear the matter if the parties so

stipulated [citations],[] but it does not mean that only the judge pro tempore is

empowered to rule on the matter. Although the record does not reveal details of

Commissioner Danoff’s tenure as a judge pro tempore, it does indicate he was

unavailable to preside over the subsequent hearing.” (New Tech, supra, 191 Cal.App.3d

at p. 1069.)

       Friedman argues the October 3, 2012 order reducing attorney fees must be set

aside because the matter was not reconsidered and decided by Judge Swortwood, the

same judge who entered the May 3, 2012 order. But it can be reasonably inferred, in the

absence of any evidence to the contrary, that Judge Swortwood, who was serving as a

judge pro tem, was unavailable to hear the OSC matter on October 3, 2012. “In the

absence of evidence to the contrary, we presume that the court ‘knows and applies the

correct statutory and case law.’ [Citations.]” (People v. Thomas (2011) 52 Cal.4th 336,

361.) To overcome this presumption, “[t]he party attacking the judgment must clearly

and affirmatively demonstrate that the trial court relied on improper considerations.

[Citation.]” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 835.) Friedman

has not met his burden of establishing Judge Swortwood was available to hear the OSC

matter.

       The record shows that the OSC matter was assigned to Commissioner Burgess.

                                              9
Friedman would not consent to Commissioner Burgess hearing the matter. The matter

was reassigned to Judge Cahraman, against whom Friedman filed a peremptory challenge

under Code of Civil Procedure section 170.6, which was granted. The matter was

transferred to the civil supervising judge, Judge Fisher, who ultimately heard the matter.

Since there is no evidence to the contrary, it is presumed Judge Swortwood was not

available to hear the matter and the matter was properly heard by Judge Fisher.

       Friedman also argues that the trial court did not have jurisdiction to reconsider the

May 3, 2012 attorney fees award because it was a final order. The court in Le Francois

mentioned in a footnote that, “What we say about the court’s ability to reconsider interim

orders does not necessarily apply to final orders, which present quite different concerns.”

(Le Francois, supra, 35 Cal.4th at p. 1105, fn. 4.) “The general rule is that once a

judgment has been entered, the trial court loses its unrestricted power to change that

judgment. The court does retain power to correct clerical errors in a judgment which has

been entered. However, it may not amend such a judgment to substantially modify it or

materially alter the rights of the parties under its authority to correct clerical error.”

(Craven v. Crout (1985) 163 Cal.App.3d 779, 782.)

       The court in Barthold, supra, 158 Cal.App.4th 1301, addressed the issue of

whether the court could reconsider a final order. In Barthold, a marital dissolution

action, the trial court granted the wife’s motion for reconsideration of a trial court ruling

denying the wife’s motion relating to the division of proceeds from the sale of her home.

The order at issue in Barthold was a final, appealable postjudgment order, not an interim

order. (Id. at p. 1312.) The Barthold court rejected the husband’s argument that

                                               10
Le Francois was inapplicable because it only pertained to interim orders, not final orders.

(Ibid.) The court explained: “Given that section 1008 itself draws no distinction between

the reconsideration of interim and final orders, both general types of orders are

encompassed by section 1008, absent one presenting special concerns to which our high

court alluded in its footnote.” (Ibid.) “Thus, the fact that the order in this case was

issued after judgment, and in that sense was ‘final,’[] does not take it outside the ambit

either of section 1008, or the construction given to that statute by the Supreme Court in

Le Francois.” (Id. at p. 1313.)

       In a footnote, the Barthold court added that, “In another sense, however, the

original order was not yet ‘final’ at the time the judge reconsidered it, because the time to

appeal it had not yet expired. Thus, this appeal does not present, and we therefore do not

decide, the issue whether a trial court can reconsider an appealable order on its own

motion after the time to appeal from that order has expired. This circumstance may well

have been the issue the Supreme Court had in mind when it indicated in Le Francois that

‘. . . final orders . . . present quite different concerns’ from interim orders. (Le Francois,

supra, 35 Cal.4th at p. 1105, fn. 4, italics omitted.)” (Barthold, supra, 158 Cal.App.4th at

p. 1313, fn. 9.)

       Unlike in the instant case, in Le Francois, Barthold, and New Tech, the second

ruling setting aside the initial ruling, occurred within the 60-day period to file an appeal.

The trial court in the instant case cited Pettigrew v. Grand Rent-A-Car (1984) 154

Cal.App.3d 204 (Pettigrew) for the proposition that, even though the 60-day period to file

an appeal had run, the trial court still had jurisdiction to reconsider the May 3, 2012 order

                                              11
approving compromise. In Pettigrew, the jury returned a $150,000 verdict and the trial

court entered a judgment on the verdict in September 1981. In December 1981, after the

time to appeal had run and the judgment was final, the defendant moved under Code of

Civil Procedure section 473, to vacate the judgment or modify it to comply with the

statutory limits. The trial court granted the motion and entered an order correcting the

$150,000 judgment by reducing it to $15,000, to conform to the statutory limit under

Vehicle Code section 17151. (Pettigrew, at p. 207.) This statutory provision limits a

vehicle owner’s liability for damages caused by another driving with the owner’s

permission. The Pettigrew court affirmed, holding that the error was a clerical error and

the trial court had authority to correct clerical mistakes in the judgment at any time.

       Code of Civil Procedure section 473, subdivision (d), provides in relevant part:

“The court may, upon motion of the injured party, or its own motion, correct clerical

mistakes in its judgment or orders as entered, so as to conform to the judgment or order

directed, and may, on motion of either party after notice to the other party, set aside any

void judgment or order.”

       The court in Pettigrew explained the trial court had the power to reduce the

judgment because “Section 473 expressly empowers a court to correct clerical mistakes

in its judgments, even after entry. The statute imposes no time limitation on that power.

[¶] The power of a court to correct clerical mistakes in its judgments is also an inherent

power. [¶] . . . ‘The power is unaffected by the pending of an appeal or a habeas corpus

proceeding. [Citation.] The court may correct such errors on its own motion or upon the

application of the parties. [Citation.]’ [Citation.]” (Pettigrew, supra, 154 Cal.App.3d at

                                             12
p. 209.) Under Pettigrew, the trial court can correct clerical mistakes any time, even after

the time to appeal has run. Therefore, in the instant case, if the trial court made a clerical

mistake in approving attorney fees exceeding MICRA caps, the trial court had

jurisdiction to correct the error at any time.

       The court in Pettigrew explained that “‘The distinction between a clerical error

and a judicial error does not depend so much on the person making it as it does on

whether it was the deliberate result of judicial reasoning and determination. [Citations.]’

[Citation.] [¶] A clerical error in a judgment, ‘“as regards correction, includes one made

by the court which cannot reasonably be attributed to exercise of judicial consideration or

discretion.”’ [Citations.] [¶] ‘Clerical error, . . . is to be distinguished from judicial error

which cannot be corrected by amendment. The distinction between clerical error and

judicial error is “whether the error was made in rendering the judgment, or in recording

the judgment rendered.” [Citation.] Any attempt by a court, under the guise of

correcting clerical error, to “revise its deliberately exercised judicial discretion” is not

permitted. [Citation.]’ [Citation.]” (Pettigrew, supra, 154 Cal.App.3d at pp. 209-210.)

       The Pettigrew court further explained: “Witkin has said that the test as to whether

an error in a judgment is a clerical or a judicial error ‘is simply whether the challenged

judgment was made or entered inadvertently (clerical error) or advertently (judicial

error).’ (4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 65, p. 3226.) ‘The general

rule with respect to the power of the court to modify a judgment does not preclude the

court from correcting clerical errors and misprisions either in the entry of the judgment or

due to inadvertence of the court. The term “clerical error” covers all errors, mistakes, or

                                                 13
omissions which are not the result of the exercise of the judicial function. If an error,

mistake, or omission is the result of inadvertence, but for which a different judgment

would have been rendered, the error is clerical and the judgment may be corrected to

correspond with what it would have been but for the inadvertence. [Citations.] The court

has inherent power to correct such errors. This power extends to striking out findings of

fact and conclusions of law and a judgment and substituting wholly different findings of

fact and conclusions of law and judgment. In correcting a clerical error or mistake the

trial judge may give effect to facts within his personal knowledge and to his recollection.

[Citations.]’ [Citation.]” (Pettigrew, supra, 154 Cal.App.3d at p. 210.)

       In Pettigrew, the court concluded that, “[i]n the absence of a record compelling a

conclusion to the contrary, we hold that the excessive amount of the award as originally

entered, $150,000, was the result of inadvertence on the part of the court and the clerk. It

clearly was not ‘the deliberate result of judicial reasoning and determination,’ [citation]

nor could it ‘reasonably be attributed to the exercise of judicial consideration or

discretion.’ [Citation.] [¶] It cannot be presumed that the court intended deliberately to

render and enter a judgment which was contrary to law. Thus, there was an error in the

judgment which was made inadvertently; it was a clerical error and could be corrected by

the court under its statutory and inherent power so to do.” (Pettigrew, supra, 154

Cal.App.3d at p. 211.)

       Where the MICRA statute limiting attorney fees was overlooked through

inadvertence by the court, and counsel did not bring the statute to the court’s attention,

any error in awarding excessive attorney fees in violation of MICRA, may properly be

                                             14
characterized as inadvertent clerical error. (Pettigrew, supra, 154 Cal.App.3d at pp. 211-

212.) Furthermore, in the instant case, when entering the May 3 2012 order, the trial

court merely approved the parties’ settlement agreement without exercising discretion in

determining the amount of settlement proceeds allocated to attorney fees. Accordingly,

we conclude that, if the initial attorney fees award violates MICRA limits, the error

constitutes clerical error and Judge Fisher did not err in modifying the order approving

compromise by reducing the fees to conform to the limits of attorney fees permissible

under MICRA. (Pettigrew, at p. 212.)

       Citing Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228

(Rochin), Friedman argues that, even assuming the attorney fees were impermissible

under MICRA, entry of the order was not a clerical error because the trial court intended

to make the order and the trial court lost jurisdiction to correct the error because the time

to appeal had run. In Rochin, a personal injury action, the jury allocated fault using a

special verdict form. (Id. at p. 1232.) At first, fault was allocated to the plaintiff, the

defendant, and “others.” (Ibid.) After polling the jury, the court ordered the jury to

recalculate fault, excluding “others.” (Ibid.) The jury did so after further deliberation,

and based upon the new calculation, the court entered judgment. (Id. at p. 1233.)

Thereafter, the defendant submitted a proposed amended judgment reflecting the original,

lower percentage of fault the jury had originally allocated, which the court subsequently

signed. (Ibid.)

       On appeal, the plaintiff argued the amended judgment was void, representing a

“‘wholesale modification of a regularly entered judgment,’ which was not accomplished

                                              15
in the manner prescribed by statute.” (Rochin, supra, 67 Cal.App.4th at p. 1237.) The

Court of Appeal agreed and reversed, rejecting the defendant’s claim that the court was

merely correcting a clerical error. (Id. at p. 1238.) “The court’s signing of the amended

judgment, which reinstated the stricken allocations of fault, substantially altering the

judgment can only be viewed as an attempt to correct prior perceived judicial error in

directing the jury to disregard the fault of nonparties. The trial court had no jurisdiction

to so amend the judgment, and the resulting amended judgment is thus void and of no

effect.” (Ibid.)

       Rochin, supra, 67 Cal.App.4th 1228 is distinguishable because, as discussed

above, the error in the instant case was clerical, rather than judicial error. In Rochin, the

trial court committed judicial error by exercising its discretion in erroneously instructing

the jury to disregard third party fault and recalculate fault. In the instant case, the trial

court error consisted of an inadvertent oversight in approving attorney fees which

exceeded MICRA limits, committed by the trial court when approving a minor’s

compromise.

       Rochin is also distinguishable because, in the instant case, the record on appeal

does not demonstrate that the time to appeal had actually run. The record on appeal,

including the court register of actions, does not show notice of the May 3, 2012 order

approving compromise or a notice of entry of judgment was served on the parties by

either the court clerk or the parties prior to the trial court entering the October 3, 2012

order. As a consequence, under California Rules of Court, rule 8.104(a)(1), the time to

appeal the May 3, 2012 order did not run until 180 days after entry of judgment. The

                                               16
time to appeal thus did not run until November 2012, after the trial court ordered the

attorney fees reduced on October 3, 2012. Any error in approving $158,000 in attorney

fees constituted clerical error and therefore Judge Fisher had jurisdiction to reconsider the

award and correct it at the OSC hearing on October 3, 2012.

                                              IV

                                         ESTOPPEL

       Friedman alternatively contends Judge Fisher was estopped from modifying Judge

Swortwood’s October 3, 2012 order approving compromise. The record does not support

a finding of estoppel in the context of this case.

       Friedman asserts that, because he relied on Judge Swortwood’s May 3, 2012 order

approving $158,000 in attorney fees, Judge Fisher was estopped from ruling the May 3,

2012 order was invalid and reducing the attorney fee award. In support of this

contention, Friedman quotes Greene v. State Farm Fire & Casualty Co. (1990) 224

Cal.App.3d 1583 (Greene), which states: “‘If a trial court encounters statements or

conduct by a defendant which lulls the plaintiff into a false sense of security resulting in

inaction, and there is reasonable reliance, estoppel must be available . . . .’” (Id. at p.

1592, quoting Borglund v. Bombardier, Ltd. (1981) 121 Cal.App.3d 276, 281.) The court

in Greene noted that “The above quoted principle applies with no less force to statements

and conduct by a court, upon which a plaintiff surely should be able to rely.” (Greene, at

p. 1592.) “‘[E]stoppel may be asserted against the government “where justice and right

require it.”’ [Citations.] Nor is the executive branch of government the only one of the

three branches which may find its interest in conflict with the interest of a litigant, such

                                              17
that it might be estopped from pursuing that interest to the detriment of that litigant.” (Id.

at p. 1590.)

       Judge Fisher was not estopped from modifying the October 3, 2012 order

approving compromise. “‘The doctrine of equitable estoppel is founded on concepts of

equity and fair dealing. It provides that a person may not deny the existence of a state of

facts if he intentionally led another to believe a particular circumstance to be true and to

rely upon such belief to his detriment. The elements of the doctrine are that (1) the party

to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be

acted upon, or must so act that the party asserting the estoppel has a right to believe it

was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he

must rely upon the conduct to his injury.’” (Greene, supra, 224 Cal.App.3d at p. 1590,

quoting Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.)

       Estoppel does not apply here. Equity and fair dealing do not support a finding of

estoppel here, where, as discussed below, Friedman knowingly and inappropriately

requested attorney fees in excess of MICRA limits. Judge Fisher and the trial court in

general were not estopped from changing Judge Swortwood’s May 3, 2012, erroneous

order, approving attorney fees in violation of MICRA attorney fee limits.

                                              V

                             MICRA ATTORNEY FEES CAP

       In arguing the trial court unlawfully ordered his attorney fees reduced in

conformity with MICRA section 6146, Friedman asserts that section 6146 is



                                              18
unconstitutional.9 Friedman acknowledges that the California Supreme Court held in

Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 923 (Roa), that section 6146 is

constitutional. Nevertheless, Friedman urges this court to reconsider Roa and hold that

section 6146 is unconstitutional on the ground the rationale for enacting MICRA has

ceased to exist. We decline to do so. This court is bound by our high court’s holding in

Roa that section 6146 is constitutional. (See Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455-456.) Unless the California Supreme Court revisits the issue,

or our Legislature amends the statute, or the United States Supreme Court decides

otherwise, we must affirm the trial court’s reliance on section 6146.

       Furthermore, Friedman has not established changed factual circumstances

demonstrating the purpose for enacting section 6146 no longer exists. The Legislature

explained in the preamble to MICRA the rationale for enacting MICRA: “‘The

Legislature finds and declares that there is a major health care crisis in the State of

California attributable to skyrocketing malpractice premium costs and resulting in a

       9  Section 6146 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).
        “The limitations shall apply regardless of whether the recovery is by settlement,
arbitration, or judgment, or whether the person for whom the recovery is made is a
responsible adult, an infant, or a person of unsound mind.”

                                              19
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 safety considerations permit now and into the

foreseeable future.’ (Stats. 1975, Second Ex. Sess. 1975-1976, ch. 2, § 12.5, p. 4007.)”

(American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 372, fn. 11.)

       The court in Roa, held that section 6146’s attorney fees limits are rationally related

to the MICRA scheme, in part, because, “In order to reduce malpractice insurance costs,

MICRA incorporated a number of provisions that place special limits on, or that at least

may tend to reduce, a malpractice plaintiff’s recovery, provisions that are not applicable

to other personal injury plaintiffs. . . . The Legislature may reasonably have concluded

that a limitation on contingency fees in this field was an ‘appropriate means of protecting

the already diminished compensation’ of such plaintiffs from further reduction by high

contingency fees. [Citation.]” (Roa, supra, 37 Cal.3d at p. 932.)

       Friedman argues that the purpose in enacting MICRA was to address the medical

malpractice crisis and protect California’s health care delivery system by reducing the

cost of medical malpractice insurance. Citing a 2007 Los Angeles Times article,

Friedman maintains that there is no longer a medical malpractice crisis in California and

therefore no remaining justification for relying on Roa’s holding that section 6146 is

constitutional. However, Friedman has not established there is no longer a rational basis

                                              20
for adhering to section 6146. Even assuming medical malpractice litigation has

decreased since enactment of MICRA in 1975, this does not necessarily establish that the

need for MICRA no longer exists. Any decrease can also be viewed as supporting the

proposition that MICRA has been an effective deterrent to medical malpractice litigation

and suggests that, if MICRA provisions, such as section 6146, were eliminated, medical

malpractice litigation would increase.

       Friedman further argues that under Gonzalez, supra, 197 Cal.App.4th 881,

MICRA no longer controls attorney fee awards in medical malpractice actions. Friedman

asserts that the court in Gonzalez held under almost identical facts as in the instant case

that the trial court was required to award attorney fees in medical malpractice actions

based exclusively on the reasonable standard set forth in rule 7.955. Friedman

misconstrues the holding in Gonzalez. In Gonzalez, supra, 197 Cal.App.4th at page 885,

the court held that the trial court erred in automatically awarding the maximum attorney

fees allowable under MICRA, without considering whether the fees were reasonable

under rule 7.955. Rule 7.955 generally governs the determination of whether attorney

fees are reasonable. The Gonzalez court emphasized that “MICRA establishes caps on a

recovery, not guarantees. (Gonzalez, at pp. 885, 888.)

       Although the court in Gonzalez, supra, 197 Cal.App.4th at page 888, stated that

the trial court was required to “redetermine the award of attorney fees under California

Rules of Court, rule 7.955, not a local rule or MICRA,” this language, when taken in the

context of the Gonzalez decision as a whole, does not intimate that MICRA attorney fees

caps no longer apply. We construe the language in Gonzalez as indicating that the trial

                                             21
court must not assume the maximum amount of attorney fees permissible under MICRA

constitutes reasonable fees. Rather, the trial court is required to determine whether,

within the limitations of MICRA, the requested fees are reasonable under rule 7.955.

       In the instant case, on October 3, 2012, the trial court appropriately reduced the

attorney fees awarded in the May 3, 2012 order approving compromise, on the ground the

attorney fees exceeded MICRA attorney fee limits under section 6146.

                                            VI

                                      DISPOSITION

       The judgment is affirmed and the matter is remanded to the trial court for further

action consistent with this opinion. No costs to be awarded.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                CODRINGTON
                                                                                            J.

We concur:


RICHLI
                Acting P. J.


MILLER
                          J.




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