Filed 7/24/15 Lora v. Lancaster Hospital Corp. CA2/4

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


DIORESLY LORA,                                                       B250519

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. MC023074)
         v.
                                                                     MODIFICATION OF OPINION
LANCASTER HOSPITAL
CORPORATION,                                                        [NO CHANGE IN JUDGMENT]

         Defendant and Respondent.



         THE COURT:
         It is ordered that the opinion filed herein on July 22, 2015, be modified as follows:
         The following name is to be added to the attorney listing:
         Fred J. Hiestand, Civil Justice Association of California as Amicus Curiae on
behalf of Defendant and Respondent.




____________________________________________________________________
WILLHITE, Acting P.J.         MANELLA, J.                COLLINS, J.
Filed 7/22/15 Lora v. Lancaster Hospital Corp. CA2/4 (unmodified version)

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


DIORESLY LORA,                                                       B250519

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. MC023074)
         v.

LANCASTER HOSPITAL
CORPORATION,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Victor E.
Chavez, Judge. Affirmed.
         Law Offices of Bruce G. Fagel & Associates, Bruce G. Fagel, Richard P. Akemon,
and Eduardo J. Ascencio, Smith & McGinty, Daniel U. Smith, for Plaintiff and
Appellant.
         Greenberg Traurig, Karin L. Bohmholdt, Kendyl T. Hanks, and Jay Yagoda, for
Defendant and Respondent.
         Cole Pedroza, Curtis A. Cole as Amicus Curiae on behalf of Defendant and
Respondent.
       Plaintiff and appellant Dioresly Lora brought a medical malpractice claim against
defendant and respondent Lancaster Hospital Corporation dba Palmdale Regional
Medical Center (Palmdale). A jury found for Lora and awarded her approximately $12
million in past and future economic damages ($6.6 million in present cash value) and
approximately $3 million in noneconomic damages. On Palmdale’s motion, the court
reduced Lora’s noneconomic damages to $250,000, the maximum allowable under the
Medical Injury Compensation Reform Act of 1975 (MICRA) (Stats. 1975, 2d Ex. Sess.
1975-1976, ch. 1, § 26.6, pp. 3975-3997; Civ. Code, § 3333.2).1
       In the briefing she submitted in connection with this appeal, Lora challenged the
constitutionality of the $250,000 cap on noneconomic damages. She contended that the
cap violates the equal protection clause because the conditions prompting its enactment
no longer exist and because inflation has eroded its value. She also contended that the
cap deprives her and other medical malpractice victims of their constitutional right to a
jury trial. Our Supreme Court and sister courts of appeal have considered and rejected
these very arguments, which Lora unequivocally abandoned during oral argument in
favor of an unbriefed request that we interpret MICRA to account for inflation. We reject
the arguments Lora raised in her briefs, decline to consider the new theory she raised
belatedly at oral argument, and affirm the judgment of the trial court.
                    FACTUAL AND PROCEDURAL SUMMARY
       According to the allegations of the charging pleading, Lora was 24 years old when
she sought treatment for asthma at Palmdale’s telemetry unit in November 2011. Lora
went into respiratory arrest during treatment and was found with no pulse or blood
pressure. She was resuscitated but sustained severe neurological damage.
       By and through her mother and guardian ad litem Hortensia Lora, Lora brought a
medical malpractice suit against Palmdale and prevailed after a jury trial. As is pertinent



1
       All further statutory references are to the Civil Code unless otherwise indicated.


                                             2
here, the jury awarded her $3,072,856.00 in noneconomic damages for past and future
pain and suffering by special verdict on March 22, 2013.
       Palmdale subsequently filed a motion pursuant to MICRA, section 3333.2, to
reduce Lora’s noneconomic damages to $250,000. In a written opposition filed prior to
and in anticipation of Palmdale’s motion, Lora objected that the cap on noneconomic
damages deprived her of her constitutional rights to a jury trial and equal protection of
the laws. She also requested an evidentiary hearing so she could present evidence in
support of her argument that the damages cap no longer had a rational basis in light of
changed conditions. (See Stinnett v. Tam (2011) 198 Cal.App.4th 1412, 1434 (conc. &
dis. opn. of Dawson, J.) (Stinnett).) Lora attached to her filing a declaration from
economist Peter Formuzis, Ph.D., who testified that inflation had eroded the purchasing
power of $250,000 in 1975 dollars to a mere $57,472 in 2013 dollars. Formuzis also
testified that if the $250,000 cap imposed in 1975 had been indexed to inflation, it would
be worth $1,087,477 in 2013 dollars.
       Lora filed a second opposition document after Palmdale filed its motion. In it, she
argued that her noneconomic damages “should not be reduced to the $250,000 cap per
Civil Code § 3333.2, but only to $1,076,000 based on the declaration of Dr. Formuzis.” 2
Lora clarified that she was “not requesting that the court invalidate MICRA or section
3333.2 entirely.” Instead, she “request[ed] the court to interpret the statute to mean that
any limitation in non-economic damages should be in present value since the legislature
would not have intended a limitation placed on non-economic damages 38 years ago to
be worth less and less each year.” Lora also contended that Proposition 103, a measure
passed in 1988 that “prohibits the Insurance Commissioner from approving rates that are
excessive, inadequate, or unfairly discriminatory, and from allowing such rates to remain
in effect” (Chan v. Curran (2015) 237 Cal.App.4th 601, 610, (Chan); see also Cal. Code


2
       Formuzis stated that the $250,000 damages cap would be equivalent to $1,087,477
in 2013 dollars. Lora’s other expert declarant, actuary Allan I. Schwartz, stated that the
cap would be “about $1,060,000” in 2012 dollars if adjusted for inflation. The source of
the amount Lora requested, $1,076,000, is not clear.
                                             3
Regs. tit. 10, §§ 2641.1-2648.4), ensures that a medical malpractice insurance crisis like
the one that led to the passage of MICRA will not recur. She attached a lengthy
declaration from actuary Allan I. Schwartz, stipulations and consent orders between the
Insurance Commissioner and various medical malpractice insurers, and profitability
reports for medical malpractice insurers for the years 1993-2010.
       Lora subsequently filed a request for judicial notice. She provided nine additional
documents from the Department of Insurance that in her view were relevant both to “her
opposition to the reduction of her non-economic damages, and her request that non-
economic damages be expressed in present value.” She contended that the documents –
letters, decisions, and stipulations involving the Department of Insurance – demonstrated
that section 3333.2 “no longer has a “reasonably conceivable” “rational basis” that is
“plausible” because the rational basis for section 3333.2’s [sic] was removed in 1988
when Proposition 103 gave the Insurance Commissioner the power to reduce “excessive”
rates and thereby protect insureds (doctors, hospitals and other healthcare providers) from
skyrocketing rates.” Palmdale opposed Lora’s requests to reduce her damages to
$1,076,000 and for judicial notice.
       The parties appeared in court on May 9, 2013. Lora reiterated to the court that she
“is not asking you to ignore or strike down the MICRA statute that reduces the
noneconomic damages to a maximum of $250,000. [¶] What plaintiff is asking you to
do is what courts are always asked to do when looking at a law passed by the Legislature.
We are asking you to interpret that law in a way that makes both legal and moral sense.”
She argued that the Legislature “could not have intended that in placing such an artificial
cap on the value of human life, that such a value would decrease each year such that
today that value is less than 25 percent of the original cap.” She implored the court, “So
finding that amount in reducing the noneconomic damages from $3,000,000 to 1,000,000,
you are still following the requirements of MICRA, but you are interpreting the law in a
way that makes sense, going back 38 years and saying Legislature, if you are going to
pass this kind of cap and ultimately that places a value on human life in medical
malpractice cases, it much [sic] be indexed for inflation. And if it wasn’t by the

                                             4
Legislature, then it needs to be by the court; otherwise, what we have is every year the
value of human life decreases.”
        The court stated, “I regrettably agree with your position and cannot find the way
you suggest.” It continued, “I have to follow the law, and I think - - as I see the law,
that’s the law. [¶] The Legislature is the place this should be changed, not here, not in
this court unfortunately.” The court accordingly granted Palmdale’s motion and reduced
Lora’s noneconomic damages to $250,000 pursuant to section 3333.2. It did not address
Lora’s requests for an evidentiary hearing and judicial notice, and Lora did not mention
them.
        Lora timely appealed.
                                       DISCUSSION
I.      Issues Presented on Appeal
        In her briefing, Lora presented two issues for consideration on appeal. She
characterized these issues as follows: (1) “Is the discrimination inflicted by MICRA’s
$250,000 noneconomic damages cap on severely injured medical malpractice plaintiffs
an unconstitutional denial of equal protection of the law due to a lack of a rational basis
because the modest increases in medical malpractice insurance rates—regulated since
1988 by the Insurance Commissioner under Proposition 103—no longer threaten the
availability of health care in California?” and (2) “Does MICRA’s $250,000
noneconomic damages cap, fixed since 1975, by reducing noneconomic damages to
$250,000—without regard to the jury’s evidence-based award of damages and without
offering plaintiffs the alternative of a new trial—deny medical malpractice victims their
“inviolate” constitutional right to a jury determination of damages?” At the conclusion of
both her opening and reply briefs, she requested that we “declare the damages cap in
section 3333.2 unconstitutional and modify the judgment to include the jury’s award of
noneconomic damages.”
        Palmdale contended that Lora should not be permitted to raise these issues because
she abandoned them below. Specifically, Palmdale argued that Lora jettisoned the
constitutional challenges in favor of asking the trial court to “interpret” section 3333.2 as

                                              5
though the damages cap were indexed to inflation. In the alternative, Palmdale argued
that Lora’s constitutional arguments failed on the merits. Palmdale came to oral argument
prepared to address the merits of Lora’s constitutional arguments.
       So did we. At oral argument, however, Lora indicated that she no longer wished
to argue that section 3333.2 be declared unconstitutional. Instead, she sought to resurrect
the alternate request she made in the trial court: that we “interpret” section 3333.2 to
account for inflation. She contended that she preserved the argument by discussing
Salgado v. County of Los Angeles (1998) 19 Cal.4th 629 (Salgado) in her reply brief.
       As a general matter, “one cannot raise on appeal material issues which he
abandons at the trial level as a matter of strategy and purely for his own advantage.”
(Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 969.) The record strongly suggests such
tactical maneuvering here. Lora preemptively raised her constitutional challenges before
Palmdale filed its motion to reduce her noneconomic damages. She then altered her
position to request an inflation-adjusted reduction after Palmdale filed its motion and the
court suggested during a hearing that it was inclined to grant the motion despite its
disagreement with MICRA. Lora reiterated her new position at a later hearing, during
which she urged the court to “intepret[ ] the law in a way that makes sense” by reducing
her damages to the inflation-adjusted amount of $1,076,000. Lora made no mention of
her jury trial right, the equal protection clause, or her earlier claims that section 3333.2
was unconstitutional. Instead, she presented the issue exclusively in terms of the
economic value of human life. She abandoned that characterization in her briefing in
favor of pursuing the constitutional claims she originally asserted, then did an about-face
at oral argument by returning to the interpretation argument she entirely failed to brief.
(The two extended quotations from Salgado she included in her reply brief have nothing
to do with her “interpretation” argument and would not have preserved it even if they did.
It is well settled that points raised for the first time in a reply brief will not be considered
unless good cause is shown. (E.g., Allen v. City of Sacramento (2015) 234 Cal.App.4th
41, 65; Webber v. Clarke (1887) 74 Cal. 11, 13; see also 9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 723, pp. 790-791.) Good cause certainly was not shown in this case.)

                                                6
       Lora’s continually shifting legal theories undoubtedly have presented Palmdale
with a moving target. We are not unsympathetic to Palmdale’s plight and indeed have
some inclination to simply dismiss Lora’s appeal in light of her unequivocal
abandonment of the issues the parties briefed. We conclude it is the better course,
however, to address the constitutional challenges the parties briefed. (See San Mateo
Union High School District v. County of San Mateo (2013) 213 Cal.App.4th 418, 436.)
Our review of these purely legal issues is de novo. (See, e.g., Finberg v. Manset (2014)
223 Cal.App.4th 529, 532.)
II.    MICRA & Section 3333.2
       “In May 1975, the Governor—citing serious problems that had arisen throughout
the state as a result of a rapid increase in medical malpractice insurance premiums—
convened the Legislature in extraordinary session to consider measures aimed at
remedying the situation. In response, the Legislature enacted the Medical Injury
Compensation Reform Act of 1975 (MICRA) . . . , a lengthy statute which attacked the
problem on several fronts.” (American Bank & Trust Co. v. Community Hospital (1984)
36 Cal.3d 359, 363 (American Bank).) MICRA “reflects a strong public policy to contain
the costs of malpractice insurance by controlling or redistributing liability for damages,
thereby maximizing the availability of medical services to meet the state’s health care
needs.” (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8
Cal.4th 100, 112.)
       One of MICRA’s provisions, now codified at section 3333.2, “made changes in
existing tort rules in an attempt to reduce the cost of medical malpractice litigation, and
thereby restrain the increase in medical malpractice insurance premiums.” (Fein v.
Permanente Medical Group (1985) 38 Cal.3d 137, 159 (Fein).) Section 3333.2 provides
in pertinent part “(a) In any action for injury against a health care provider based on
professional negligence, the injured plaintiff shall be entitled to recover noneconomic
losses to compensate for pain, suffering, inconvenience, physical impairment,
disfigurement and other nonpecuniary damage. [¶] (b) In no action shall the amount of
damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).”

                                              7
III.   Equal Protection
       Lora contends that section 3333.2 violates her constitutional right to equal
protection of the laws. (Cal. Const., art. I, § 7, subd. (a).) She argues that the damages
cap, which in her view discriminates between severely injured medical malpractice
plaintiffs and all others, currently lacks a rational basis because the insurance crisis that
led to the passage of MICRA has been abated by changed conditions, primarily the 1988
enactment of Proposition 103. We disagree.
       “‘Where, as here, a disputed statutory disparity implicates no suspect class or
fundamental right, “equal protection of the law is denied only where there is no ‘rational
relationship between the disparity of treatment and some legitimate governmental
purpose.’”’ [Citations.]” (Chan, supra, 237 Cal.App.4th at p. 611.) Under the rational
relationship test, there simply must be plausible reasons for the challenged classification;
it is not constitutionally relevant whether the reasoning in fact motivated the Legislature.
(Id. at p. 614.) Parties challenging legislation under the equal protection clause may
introduce evidence supporting their claim that the provision is irrational, but they cannot
prevail if the question of rationality is at least debatable. (Stinnett, supra, 198
Cal.App.4th at p. 1427.) “Thus, ‘[t]o mount a successful rational basis challenge, a party
must “‘negative every conceivable basis’” that might support the disputed statutory
disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-
guess its “‘wisdom, fairness, or logic.’” [Citations.]’ [Citation.]” (Chan, supra, 237
Cal.App.4th at p. 613.)
       The Supreme Court upheld section 3333.2’s damages cap against an equal
protection challenge in 1985. (See Fein, supra, 38 Cal.3d 137.) The court reasoned that
“the Legislature retains broad control over the measure, as well as the timing, of damages
that a defendant is obligated to pay and a plaintiff is entitled to receive, and that the
Legislature may expand or limit recoverable damages so long as its action is rationally
related to a legitimate state interest.” (Id. at p. 158 [emphases in original].) In
determining whether the requisite rational relationship existed, the court conducted a
“serious and genuine judicial inquiry into the correspondence between the classification

                                               8
and the legislative goals.” (Id. at p. 163.) The court concluded that section 3333.2 was
rationally related to legitimate state interests, namely reducing the costs of medical
malpractice insurance and concomitant litigation. (Id. at pp. 158-159.) The court
recognized that section 3333.2 in some cases “will result in the recovery of a lower
judgment than would have been obtained before the enactment of the statute,” but
emphasized that the damages cap reached only noneconomic damages and left other
damages unaffected. (Id. at p. 159.) Moreover, it observed that “no California case . . .
has ever suggested that the right to recover for such noneconomic injuries is
constitutionally immune from legislative limitation or revision.” (Id. at pp. 159-160.)
       Lora acknowledges Fein’s holding but contends it is no longer controlling in light
of the 1988 enactment of Proposition 103, the purpose of which was to ensure that
“‘insurance is fair, available, and affordable for all Californians’” (Calfarm Insurance
Co. v. Deukmejian (1989) 48 Cal.3d 805, 813 (Calfarm)), and the diminution in the cap’s
real value due to inflation. That is, she contends that changed circumstances have
rendered section 3333.2 unconstitutional since Fein was decided in 1985. Two of our
sister courts of appeal recently have considered and rejected virtually identical
arguments. (See Stinnett, supra, 198 Cal.App.4th at pp. 1427-1432; Chan, supra, 237
Cal.App.4th at pp. 611-621.) We find these decisions to be well-reasoned and
persuasive.
       In Stinnett, supra, 198 Cal.App.4th at p. 1427, the plaintiff argued that section
3333.2 was no longer rational because medical malpractice insurance rates were no
longer “skyrocketing” or threatening the availability of health care, and because
Proposition 103 empowered the Insurance Commissioner to regulate and prescribe
malpractice insurance rates. The court of appeal acknowledged that “‘“the
constitutionality of a statute predicated upon the existence of a particular state of facts
may be challenged by showing to the court that those facts have ceased to exist.”’
[Citations.]” (Id. at p. 1428.) It concluded that the principle of changed circumstances
was not applicable, however, because the Supreme Court in Fein “did not find section
3333.2 constitutional based on a particular set of facts, i.e., whether a medical

                                              9
malpractice insurance crisis actually existed, but instead did so based on the Legislature’s
power to determine whether such a crisis existed and to craft remedies to solve the crisis
the Legislature found.” (Id. at p. 1430.)
       The Stinnett court also substantively rejected the plaintiff’s implicit contentions
that section 3333.2 was obsolete or no longer necessary to reduce medical malpractice
costs. Relying on American Bank, supra, 36 Cal.3d at p. 374, the court explained that
“‘the constitutionality of a measure under the equal protection clause does not depend on
a court’s assessment of the empirical success or failure of the measure’s provisions[,]’
and the equal protection clause is satisfied by the court’s conclusion that, from the
information before it, ‘the Legislature could rationally have decided that the enactment
might serve its insurance cost reduction objective.’” (Stinnett, supra, 198 Cal.App.4th at
p. 1430.) The court further explained that the circumstances in which a court may deem a
law unconstitutional in light of changed conditions are “‘quite narrow’ (Santa Monica
Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 973 [])” (Stinnett, supra, 198
Cal.App.4th at p. 1430), and suggested that the plaintiff would be better served by
addressing her concerns to the Legislature, as “it is not the judiciary’s function to
determine when constitutionally valid legislation has served its purpose.” (Id. at pp.
1430-1431; see also id. at p. 1428 [“Generally, modification or repeal of a statute made
obsolete by virtue of changed conditions is a legislative, not a judicial, prerogative.”].)
The court distinguished Brown v. Merlo (1973) 8 Cal.3d 855, 858-859 (Brown), Skalko v.
City of Sunnyvale (1939) 14 Cal.2d 213, 216, Calfarm, supra, 48 Cal.3d at pp. 817-818,
820-821, and Sonoma County Organization of Public Employees v. County of Sonoma
(1979) 23 Cal.3d 296, 314 (Sonoma County), all of which invalidated statutes as
unconstitutional, and ultimately found Fein’s holding that the cap did not violate equal
protection enduring and controlling. (Id. at p. 1431.)
       The plaintiff’s contentions that inflation had eroded the cap did not persuade the
court otherwise. (See Stinnett, supra, at p. 1432.) The court again noted that Fein was
controlling. (Ibid.) It further determined that “[t]he statute does not address purchasing
power; instead, it addresses the maximum dollar amount of noneconomic damages a

                                              10
plaintiff may recover in an action against a health care provider based on professional
negligence, which is the same amount for every such plaintiff.” (Ibid.) The court
explained that “[t]he fact that Stinnett might prefer a different statute, indexed for
inflation, does not render unconstitutional the statue the Legislature enacted,” and
reiterated that the Legislature, not the court, is the appropriate forum at which to direct
such contentions. (Ibid.)
       Nearly four years later, the Court of Appeal for the First Appellate District arrived
at the same conclusions. In Chan, supra, 237 Cal.App.4th at p. 606, as in Stinnett and the
instant case, the plaintiff argued that Fein was no longer controlling because “she has
shown there no longer is a medical malpractice insurance ‘crisis’ and therefore the
rationale for the cap (indeed, for all of MICRA) no longer exists.” She introduced
evidence from an economist showing that inflation eroded the cap’s real value, as well as
a declaration from an actuary stating that medical malpractice insurance premiums have
increased an average of only one percent per year since the passage of Proposition 103.
(See Id. at pp. 609-610.) The court was not persuaded that this evidence of changed
circumstances was sufficient to upend Fein as “the controlling authority as to the
constitutional validity of MICRA’s noneconomic damages cap on equal protection
grounds.” (Id. at p. 621.)
       The Chan court began its analysis with the observation that “[t]he role of ‘changed
circumstances’ in constitutional analysis is fraught with institutional tension and
analytical difficulties.” (Chan, supra, 237 Cal.App.4th at p. 613.) It explained, “‘It is not
. . . easy for courts to step in and say what was rational in the past has been made
irrational by the passage of time, change of circumstances, or the availability of new
knowledge. Nor should it be. Too many issues of line drawing make such judicial
decisions hazardous. What degree of legislative action, or of conscious inaction, is
needed when that (uncertain) point is reached? These difficulties—and many others—
counsel restraint, and do so powerfully.’ [Citations.]” (Id. at pp. 613-614.) The court
further emphasized that the fundamental principles of rational basis review, which
provide that classifications may be based on “‘“rational speculation unsupported by

                                              11
evidence or empirical data,”’” and are permissible so long as they are rationally related to
any “‘“realistically conceivable legislative purpose,”’” also severely circumscribe the
situations in which changed circumstances may render a statute unconstitutional. (Id. at
p. 614.)
       From that premise, the court deemed misplaced the plaintiff’s reliance on Brown,
supra, 8 Cal.3d 855, which invalided California’s guest statute on the basis of changed
circumstances. (Chan, supra, 237 Cal.App.4th at pp. 614-616.) The court concluded that
“MICRA is not afflicted with the peculiar characteristics of the antiquated guest statutes
that colored the equal protection analys[i]s in Brown . . . .” (Id. at p. 616.) “First,
MICRA’s noneconomic damages cap does not wholly deny compensation to medical
malpractice plaintiffs—there is no limitation on the recovery of actual damages (i.e.,
medical costs and lost wages) and there is only a partial limitation on the recovery of
noneconomic damages. Second, MICRA is not based on vestigial analogies to archaic
law. And third, while there is a significant debate about the wisdom and efficacy of
damages caps in controlling medical malpractice insurance costs, it is a matter of
legitimate debate.” (Ibid.) ([Emphasis in original].) The court also distinguished
Calfarm, supra, 48 Cal.3d 805, and Sonoma County, supra, 23 Cal.3d 296, as inapposite
because they did not involve a “changed cirumstances” analysis. (See Chan, supra, 237
Cal.App.4th at p. 617, fn 8.)
       The court found it “significant” that the Fein majority “disregarded two objections
by the dissent which lie at the heart of the equal protection challenge that Chan [and
Lora] now advance[],” namely inflation’s inevitable diminution of the cap’s value and the
“‘fading into the past’” of the medical malpractice insurance crisis. (Chan, supra, 237
Cal.App.4th at p. 616, citing Fein, supra, 38 Cal.3d at pp. 169, 171 (dis. opn. of Bird,
C.J.).) In the court’s view, the emergence and rejection of these concerns at the time of
Fein’s issuance undermined Chan’s contention that the circumstances warranting the
damages cap were “‘totally altered.’” (Chan, supra, 237 Cal.App.4th at p. 617.)
       The court also found wanting Chan’s contention – and evidence – that Proposition
103 supplanted the need for the damages cap. The court explained Proposition 103 does

                                              12
not prohibit increases in malpractice insurance rates or require low rates; rather, its
purpose is to ensure that rates are maintained at levels that fairly reflect insurers’ costs.
(Chan, supra, 237 Cal.App.4th at p. 617.) Proposition 103 does not limit medical costs
and therefore “provides no assurance medical malpractice rates would stay in check
should MICRA’s noneconomic damages cap be removed.” (Id. at pp. 617-618.) Thus,
by relying on Proposition 103, Chan did not demonstrate “that the fundamentals of our
health care system and its interfacewith our tort and insurance systems that gave rise to
the declared insurance crisis [ ] no longer exist, rendering MICRA’s provisions of no
plausible utility” in abating or preventing a medical malpractice insurance crisis. (Id. at
pp. 618-619.) The recent United States Supreme Court case Shelby County v. Holder
(2013) ___ U.S. ___ [133 S. Ct. 2612] did not affect the court’s conclusion, because the
analysis in that case was predicated on principles of federalism and addressed conditions
that were “demonstrably and irrefutably” changed. (See Chan, supra, 237 Cal.App.4th at
p. 620.) By contrast, the Chan court found Chan had presented no evidence “that the
factors that precipitated the medical malpractice insurance crisis addressed by MICRA no
longer exist and the act in no plausible way continues to advance the Legislature’s
purpose in enacting it.” (Ibid.)
       The court was not persuaded by Chan’s citations to extra-state case law rulings
that damages caps bear no rational relationship to controlling insurance costs, including
Estate of McCall v. United States (Fla. 2014) 134 So.3d 894, 910. (Chan, supra, 237
Cal.App.4th at pp. 620-621.) The court noted that courts in numerous other states have
upheld damages caps. (Ibid.) The court further noted that such a split in authority
existed when Fein was decided and that the Fein court nonetheless had concluded that
“no principle of California or federal constitutional law prohibits the Legislature from
‘limiting the recovery of damages in a particular setting in order to further a legitimate
state interest.’ ([Fein, supra, 38 Cal.3d at p. 161].)” (Chan, supra, 237 Cal.App.4th at p.
621.) Like the Stinnett court, the Chan court concluded that Fein remained controlling
and precluded the plaintiff’s equal protection challenge. (Ibid.)


                                              13
       We see no basis on which to distinguish the instant case from Stinnett and Chan,
which thoroughly addressed and in our view correctly rejected every equal protection
argument Lora presently raises.
       Like the plaintiffs in Stinnett and Chan, Lora analogizes her case to Brown, supra,
8 Cal.3d 855, Calfarm, supra, 48 Cal.3d 805, and Sonoma County, supra, 23 Cal.3d 296.
We agree with our colleagues in the First and Fifth Districts that these cases are
inapposite. As the Can court explained, neither Calfarm nor Sonoma County involved a
challenge to a statute that previously had survived constitutional scrutiny. (See Chan,
supra, 237 Cal.App.4th at p. 617, fn. 8.) Brown, which did, involved vastly different
circumstances–guest statutes that prohibited automobile passengers from suing negligent
host drivers, “absurd and illogical” statutory loopholes (Brown, supra, at p. 860), and
“sea changes in the common law of torts and the availability of automobile liability
insurance” (Chan, supra, 237 Cal.App.4th at p. 615.) Notably, Fein distinguished Brown
as well. (See Fein, supra, 38 Cal.3d at p. 163.)
       Lora also makes the familiar contention that the “crisis” of “skyrocketing” medical
malpractice insurance rates no longer exists today and therefore cannot furnish a rational
basis for the damages cap. Specifically, she contends that Proposition 103 has
“remov[ed] any rational basis or MICRA’s cap,” which was ineffectual in any event.
MICRA’s alleged failure is not alone a valid basis on which to find it unconstitutional.
(See American Bank, supra, 36 Cal.3d at p. 374). Nor is Proposition 103 the panacea
Lora suggests. (See Chan, supra, 237 Cal.App.4th at p. 618 [“Proposition 103 . . . is not
the palliative she claims.”].)
       Lora contends her case is distinguishable from Stinnett because she presented the
court with evidence in support of her claim of changed conditions. (See Stinnett, supra,
198 Cal.App.4th at p. 1433, fn. 5; id. at pp. 1434-1435, conc. & dis. opn. of Dawson, J.)
Some of evidence she provided3 appears to be virtually identical to that provided,

3
       We refer only to the evidence Lora provided to the trial court in conjunction with
her briefs. Palmdale opposed her request for judicial notice, on which the court never
ruled. We conclude that the court implicitly denied Lora’s request. In so holding, we
                                             14
considered, and found insufficient in Chan: a declaration from an economist documenting
inflation and a declaration from an actuary discussing Proposition 103. (See Chan,
supra, 237 Cal.App.4th at pp. 609-610.) Lora also furnished three stipulations and
consent orders “rolling back” medical malpractice insurance premiums pursuant to
Proposition 103 and Insurance Code section 1861.01, and data tables illustrating the
“profitability results” of medical malpractice insurers in all 50 states. We do not find
Lora’s evidence particularly demonstrative of hanged circumstances. Notably, her
additional evidence shows that medical malpractice insurers in this state continue to
generate “excessive reserves” and “excessive profits” notwithstanding section 3333.2 and
Proposition 103. Lora argues the financial successes of insurers means they “have no
need to seek the ‘skyrocketing’ rates that triggered the 1975 crisis in the availability of
health care,” but that is certainly not the only conclusion one could draw from her
evidence, and all that is necessary for a statute to survive a rational basis analysis is a
plausible connection to a realistically conceivable legislative purpose. (See Chan, supra,
237 Cal.App.4th at p. 614.)
       Lora also contends that “lack of a rational basis appears in the effect of inflation.”
The fixed damages cap applies equally to all plaintiffs, without precluding seriously
injured plaintiffs like Lora from obtaining complete compensation for medical expenses


acknowledge that the court did not comply with Evidence Code section 456, which
provides that “the court shall at the earliest practicable time so advise the parties [of its
denial of a request for judicial notice] and indicate for the record that it has denied the
request.” We also recognize that in some instances, courts have concluded that a request
was impliedly granted, where there was no specific denial by the trial court, there was no
objection to the request, the request concerned matter for which judicial notice was
proper, and it was evident that the trial court relied on the requested material. (See
Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007)
157 Cal.App.4th 885, 889; Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910,
918-919.) Here, however, Palmdale objected to Lora’s request for judicial notice, and
there is no indication from the record that the court relied on the requested material in
reaching its decision (perhaps due to Lora’s apparent abandonment of the issues to which
the requested material was pertinent.) Lora has not filed a request for judicial notice in
this court. The proffered materials (which are included in our record) would not change
our ruling in any event.
                                              15
or lost earnings, and its fixed nature does not deprive it of a rational basis. Moreover, as
Chan pointed out, the Fein court was cognizant of inflation when making its (still
controlling) ruling. (See Chan, supra, 237 Cal.App.4th at pp. 616-617.) This argument
is one better directed to the Legislature. (See Stinnett, supra, 198 Cal.App.4th at p.
1432.)
         Finally, Lora contends that courts in other states have struck down similar
damages caps. She points in articular to the Florida Supreme Court, which last year
overturned Florida’s damages cap in Estate of McCall v. United States, supra, 134 So.3d
894. Our colleagues in Chan rejected this argument, as do we. (See Chan, supra, 237
Cal.App.4th at p. 620.) First, as Palmdale points out, the Florida Supreme Court
expressly restricted its analysis to wrongful death damages because “[t]he legal analyses
for personal injury damages and wrongful death damages are not the same.” (Estate of
McCall v. United States, supra, 134 So.3d at p. 900, fn. 2.) Thus, Estate of McCall is
facially inapposite to the instant case, and to Chan and Stinnett, all of which involved
medical malpractice rather than wrongful death claims. Second, and more importantly,
the California Supreme Court acknowledged in Fein that “[a] number of state courts have
invalidated statutory provisions limiting damages in medical malpractice actions on a
variety of theories.” (Fein, supra, 38 Cal.3d at p. 161.) The court nevertheless
concluded that it knew of no principle of California or federal constitutional law that
prohibited the Legislature from “limiting the recovery of damages in a particular setting
in order to further a legitimate state interest.” (Ibid.) While the lineup of states on one
side or the other of the debate may have changed since Fein, the principles of federal and
California constitutional law underlying Fein remain sound.
         For all of the reasons stated above, we agree with Stinnett and Chan that Fein
remains controlling.4 Lora’s challenge to section 3333.2 on equal protection grounds
must fail.


4
       The Supreme Court recently declined to review the issue of section 3333.2’s
constitutionality. (See Rashidi v. Moser (2014) 60 Cal.4th 718, 724, 728.)
                                              16
IV.    Right to Jury Trial
       Lora contends that the damages cap in section 3333.2 violates her right to a jury
trial, which is protected by the California Constitution. (Cal. Const., art. I, § 16.) She
argues that Jehl v. Southern Pacific Co. (1967) 66 Cal.2d 821 (Jehl), which upheld the
validity of the additur procedure, requires all alterations to a jury’s damages award to rest
on evidence contrary to the jury’s award and be accompanied by the right to consent to
the alteration or demand a new trial. We are not persuaded.
       The Supreme Court rejected a version of Lora’s argument in American Bank,
supra, 36 Cal.3d at pp. 374-376. In American Bank, a plaintiff challenged the
constitutionality of another ICRA provision, Code of Civil Procedure section 667.7,
which permits defendants to pay “future damages” of $50,000 or more periodically over
the course of time the plaintiff incurs the losses rather than in a lump sum at the time of
judgment. (See Code Civ. Proc., § 667.7; American Bank, supra, 36 Cal.3d at p. 364.)
The plaintiff contended that the jury trial guarantee requires a jury to fix the amount of
future damages and make special findings on any issue that may affect the structuring of
a periodic payment schedule. (American Bank, supra, 36 Cal.3d at p. 375.) The court
disagreed, holding that once the jury found the amount of future damages, the court’s
determination of a periodic payment schedule did not infringe upon the constitutional
right to jury trial. (Id. at p. 36.) The court, quoting Jehl, supra, 66 Cal.2d at pp. 828-
829, reasoned that the jury trial guarantee did not preclude the adoption of new
procedures or limitations “better suited to the efficient administration of justice . . . if
there is no impairment of the substantial features of a jury trial.” (American Bank, supra,
36 Cal.3d at pp.375-376, emphasis in original.) The court further confirmed that “[a]
plaintiff has no vested property right in a particular measure of damages, and that the
Legislature possesses broad authority to modify the scope and nature of such damages.”
(American Bank, supra, 36 Cal.3d at p. 368.)
       The Supreme Court reaffirmed these key principles in Fein and Salgado.. In Fein,
the court reiterated the Legislature’s broad authority to modify the nature and scope of
damages. (Fein, supra, 38 Cal.3d at p. 157.) In Salgado, the court held that the damages

                                               17
cap applies whether noneconomic damages sustained in a medical malpractice case are
paid out in a lump sum or periodically as permitted by Code of Civil Procedure section
667.7, and that the plaintiff was entitled to the same amount under either payment option.
(Salgado, supra, 19 Cal.4th at p. 640.) As is more pertinent here, the court explained that
the damages cap “places no limit on the amount of injury sustained by the plaintiff, as
assessed by the trier of fact, but only on the amount of defendant’s liability therefor.”
(Ibid.) The court further explained that the cap “does not reflect a legislative
determination that a person injured as a result of medical malpractice does not suffer”
noneconomic damages, but rather represents “an attempt to control and reduce medical
malpractice insurance costs by placing a predictable, uniform limit on the defendant’s
liability for noneconomic damages.” (Id. at p. 641.)
       Several appellate courts have relied on these principles and rejected Lora’s
argument in the specific context of section 3333.2. In Yates v. Pollock (1987) 194
Cal.App.3d 195, 200 (Yates), the court characterized it as “an indirect attack upon the
Legislature’s power to place a cap on damages.” Relying on American Bank and Fein,
the Yates court concluded that any such attack could not succeed because “‘the
Legislature retains broad control over the measure, as well as the timing, of damages that
a defendant is obligated to pay and a plaintiff is entitled to receive, and [ . . .] may expand
or limit recoverable damage so long as its action is rationally related to a legitimate state
interest.’ [Citations.]” (Yates, supra, 194 Cal.App.3d at p. 200.) The Yates court further
echoed Fein in emphasizing that “no California case ‘has ever suggested that the right to
recover for such noneconomic injuries is constitutionally immune from legislative
limitation or revision. [Citations.]’ (Fein [], supra, 38 Cal.3d at pp. 159-160.)” (Yates,
supra, 194 Cal.App.3d at p. 200.) Both Stinnett, supra, 198 Cal.App.4th at p. 1433, and
Chan, supra, 237 Cal.App.4th at p. 629, followed Yates. Chan also expressly rejected
plaintiff’s reliance on Jehl. It explained that Jehl upheld the additur procedure “even
though additur reflects a factual finding by the trial court.” (Chan, supra, 237
Cal.App.4th at p. 629, fn. 14, emphasis omitted.) “MICRA’s noneconomic damages cap,


                                              18
in contrast, is not even a species of factfinding, but a legislative limitation on damages
marking the legal boundaries of liability.” (Ibid.)
       We find these cases persuasive and well-reasoned. Once a verdict has been
returned, the constitutional provision operates only to prohibit improper interference with
the jury’s decision. (American Bank, supra, 36 Cal.3d at p. 376.) There is no such
improper interference under MICRA. The issue of damages is still submitted to the jury.
The subsequent reduction of the damages awarded—either under the periodic payment
provision challenged in American Bank (Code Civ. Proc., § 667.7), or under the damages
cap challenged in this case—does not improperly interfere with the jury’s decision.
Unlike the additur procedure approved in Jehl, which involves a court determination of
damages and accordingly permits the affected party to seek a new trial, the reduction in
damages mandated by section 3333.2 “places no limit on the amount of injury suffered
by the plaintiff, as assessed by the trier of fact.” (Salgado, supra, 19 Cal.4th at p. 640.)
It “is not a legislative attempt to estimate the true damages suffered by plaintiffs” (Id. at
p. 641), and therefore properly is not subject to the same restrictions as the additur
procedure.
                                      DISPOSITION
       The judgment of the trial court is affirmed. Costs on appeal are awarded to
Lancaster Hospital Corporation.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                        COLLINS, J.

We concur:


WILLHITE, Acting P. J.


MANELLA, J.



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