# Petition for Writ of Certiorari — Harney & Moore v. Fineberg > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0037%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 852 ## Text OF THE United States OCTOBER TERM, 1989 HARNEY & MOORE, a Partnership and Davip M. HARNEY, Petitioners, VS. JAY MARK FINEBERG, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE Davip M. HARNEY 201 N. Figueroa Street Suite 1300 Los Angeies, California 90012 (213) 482-0881 Counsel of Record Of Counsel THOMAS KaLLay 201 N. FIGUEROA STREET SUITE 1300 Los ANGELES, CALIFORNIA 90012 (213) 482-0881 BowNE OF Los ANGELES, INC., LAW PRINTERS. (213) 742-0600 QUESTIONS PRESENTED 1. Does a construction of California Business and Professions Code, section 6146 which precludes a waiver of the provisions thereof deprive a litigant of the right to a meaningful access to the courts in violation of the First Amendment of the Constitution of the United States? 2. Does a construction of California Business and Professions Code, section 6146 which precludes a waiver of the provisions thereof violate the due process clause of the Fourteenth Amendment of the Constitution of the United States? 3. Does a construction of California Business and Professions Code, section 6146 which precludes a waiver of the provisions thereof deprive a litigant of the right of the equal protection of the laws guaranteed by the Four- teenth Amendment of the Constitution of the United States? LIST OF PARTIES The parties to the proceedings below were the petition- ers David M. Harney and Harney & Moore, a law partner- ship, and the respondent Jay Mark Fineberg., il TABLE OF CONTENTS QUESTIONS PRESENTED..................-:. LIST OF PARTISS. 2... ius esos os erie vee ewe OPINION BELAIW ....cc0h Goi cwes ta Oe eee osu JURISDICTION |. 5 6400350065 he ee ees STATEMENT OF THE CASS ... 0.00.0 cewceees How The Federal Question Was Presented ..... REASONS FOR GRANTING THE WRIT ....... I STATE COURTS ARE REQUIRED TO DECIDE PROPERLY PRESENTED FEDERAL QUES- TIONS, STATE GROUNDS WHICH IN EF- FECT EVADE FEDERAL LAW SHOULD BE DISREGARDED... ... «aso Sa ee eae ee eee I] A CONSTRUCTION OF SECTION 6146 WHICH PRECLUDES A WAIVER THEREOF DE- PRIVES A LITIGANT OF THE CONSTITU- TIONAL RIGHT TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEV- ANCES AND WOULD FURTHER DEPRIVE THAT LITIGANT OF THE RIGHT TO BE REP- RESENTED BY COUNSEL OF HIS OR HER CHOICE . 2. 0 6 ccs css oa ee ea ee eee 6 il TABLE OF CONTENTS Page Ill A CONSTRUCTION OF SECTION 6146 WHICH PRECLUDES A WAIVER THEREOF DE. PRIVES A LITIGANT OF THE CONSTITU- TIONAL RIGHT TO THE EQUAL PROTECTION OF THE LAWS............... 12 ee vo Noa ceensrcecsstecuas i5 APPENDIX A_ Opinion and Judgment of the California Court of Appeal APPENDIX B_ Order Denying Review of the California Supreme Court iv TABLE OF AUTHORITIES Cases Alderman v. Hamilton (1988) 205 Cal.App.3d 1033 American Bank & Trust Co. v. Community Hospital qo 8B Le 8 rer eee Ee ee eee Tee California Motor Transport Co. v. Trucking Unlim- ited (1972) 92 S.Ct. 609, 404 U.S. 508, 30 ME 2 rer eee eee re er eee City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 533 vac. 459 U.S. 1095, reinst’d 33 Cal.3d 727 .. Demorest v. City Bank Farmers Trust Co. (1944) 64 S.Ct. 384, 321 U.S. 36, 88 L.Ed. 526 .......... Dunn v. Blumstain (1972) 405 U.S. 330, 92 S.Ct. RA ce Pe eae tla Re RIG Oa ea Far! ret Mah bn AE Fineberg v. Harney & Moore, 207 Cal.App.3d 1049 ee ee Se ee re Pee et ee CE Ee 1, 5, Hawthorn v. Lovorn (1982) 102 S.Ct. 2421, 457 U.S. Ee IE i ie eet et ne ree Herb v. Pitcairn (1945) 65 S.Ct. 459, 324 U.S. 117, BO es ees eee tre ogi wee Kramer v. Union Freed School District (1969) 395 Tey Tes Pa ex kd eK a ke ee ees Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817 McLaughlin v. State of Florida (1964) 85 S.Ct. 283, 2 Be | er eres ar Pee re ee eee Memphis Nat. Gas Co. v. Beeler (1942) 62.8.Ct. 857, Bae Soe ee CA BE ko ee Kuen ce es Powell v. Alabama (1932) 53 S.Ct. 55, 287 U.S. 45, SUES Bc xa ta Cee enceeta ues s oes Rinaldi v. Yaeger (1966) 86 S.Ct. 1497, 384 U.S. BD . \ . > : We note that Business and Professions Code section 6146 has since been amended to permit more generous fees. A-5 of double payments (‘collateral sources’’); institution of periodic payments and reversionary trusts; limitation of compensation for pain and suffering while insuring fully adequate compensation for all medical costs and loss of earnings; and setting a reasonable statute of limitations for the filing of malpractice claims.’ (Jbid.) As the Hathaway court observed, “[t|he preamble to MICRA states, in part: ‘The Legislature finds and de- clares that there is a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severs hardships for the medi- eally indigent, a denial of access for the economically marginal, and depletion of physicians such as to substan- tially worsen the quality of health care available to citi- zens 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 rea- sonable remedy within the limits of what the foregoing publie health and safety considerations permit now and into the foreseeable future. (Stats. 1975, Seeond Ex. Sess. 1975-1976, ch. 2, $12.5, p. 4007.)” (Hathaway v. Baldwing Park Community Hospital, supra, 186 Cal.App.3d at p. 1250.) Our Supreme Court has upheld MICRA’s provisions (1) ealling for periodie payment of “future damages” that are $50,000 or greater (Code Civ. Proe., § 667.7; American Bank & Trust Ce. v. Commumity Hospital (1984) 36 Cal. 3d 359, 364 [203 Cal.Rptr. 671, 683 P.2d 670, 41 A.L.R.4th 233]), (2) prohibiting “collateral sources” from ob- taining reimbursement from medical malpractice defend- ants or their insurers (Civ. Code, § 333.1, subd. (b); Barme v. Wood (1984) 37 Cal.3d 174, 180 [207 Cal. Rptr. 816 [689 P.2d 446]), (3) hmiting damages for A-6 noneconomie losses to $250,000 (Civ. Code, § 3333.2, subd. (b)) and permitting a defendant to introduce evi- dence of benefits a plaintiff has received from a collateral source (Civ. Code, § 3333.1, subd. (a)), (Fein v. Permanente Medical Group (1985) 38 Cal. 3d 137, 158-159 [211 Cal.Rptr. 368, 695 P.2d 665]). The court has also held (4) that the statute here in question, Business and Professions Code section 6146, limiting the amount of fees an attorney may collect when representing a plaintiff in a medical malpractice action on a contingency basis, is rationally related to the legislations’ legitimate objective and therefore does not violate the due process or equal protection clauses. (Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 931-932 [211 Cal.Rptr. 77, 695 P2d 164].) In each of these eases, the court recognized that the Legislature's purpose in enacting MICRA was to protect California's health care delivery system by reducing the cost of medica! malpractice insurance. (See also Willer v. Seiaront (1985) 172 Cal.App.3d 306, 309-310 [218 Cal.Rptr. 219].) In Hathaway, supra, Division One of this court con- eluded that seetion 6146 prohibits a tral court from awarding attorneys’ fees in excess of the rates provided therein. Hathaway is similar to the present ease, in that the clients petitioned the court, seeking permission to pay their attorney one-third of the amount they recovered in the case, rather than the mueh lower amount preseribed by the statute, thus essentially waiving the protection of the statute. (Hathaway v. Baldwin Park Community Hos- pital, supra, 186 Cal.App.3d 1247, 1249.) Also similar is Roa v. Lodi Medical Group, Inc., supra, 37 Cal.8d 920, where the plaintiffs made a contingeney fee arrangement with their counsel to pay him 25 percent of the amount A-7 recovered by their minor son for injuries suffered as a result of negligent treatment and care during his birth. Following settlement, plaintiffs requested the court to approve payment in accordance with their agreement, claiming section 6146 was unconstitutional on due pro- cess, equal protection and separation of powers grounds. As the court pointed out in that ease, section 6146 “does not in any way abrogate the right to retain counsel, but simply limits the compensation that an attorney may obtain when he represents an injured party under a eontingeney fee arrangement.” (Jd. at p.926.) With re- spect to the Roa plaintiffs’ argument that section 6146 is invalid “beeause the authorized fees are so low that in practice the statute will make it impossible for injured persons to retain an attorney to represent them” (id. at p.928), the court pointed out that the plaintiffs had made ‘no showing to support their factual claim” (ibid.), and “{flurthermore, a comparison of the fees permitted by section 6146 with the fees authorized under ... numerous [other] statutory schemes noted [in the decision] sug- gests that section 6146’s limits are not unusually low.” (Jbid.) The court econeluded that it could not “hold that the amount of the fees permitted renders the statute uneonstitutional on its faee.” (Ibid. ) (2) In the present ease Harney attempted to make a factual showing that the fee limitations in effect at the time of its representation of plaintiff would preclude retention by injured persons of adequate counsel. Implicit in the testimony of both David Harney and his expert is their assumption either that no lawyer would undertake representation of medical malpractice plaintiffs under the statutory fee limitation, or that lawyers engaged in that practice would lower the standard of representation af- forded medical malpractice clients because of the fee limitation. The first of these assumptions is purely specu- SS A-8 lative; the second assumes a willingness on the part of medical malpractice lawyers, as a group, to violate their duty to their clients. We reject both assur »*tions, and find no deprivation of the right to counsel by reason of the statutory provision in question. (1b) We also reject Harney’s claim that the Legisla- ture intended to permit waivers of section 6146. We find nothing in the legislative history of section 6146 to sug- gest an intent to make the statute voidable. The June 12, 1975, amendment to which Harney refers in its brief, which was deleted by a further amendment on June 27, 1975, permitted, as had two previous versions of the statute, contingeney fee agreements containing terms other than those preseribed by the fee schedule set forth in subdivision (a) of seetion 6146, but provided that such a contract “is void unless such contract is approved by the court in whieh the aetion is pending.” In deleting this version of subdivision (b) of the seetion the Legislature did not make such agreements voidable, rather than void; it is eliminated them altogether. Harney also relies on section 6147, requiring, in subdi- vision (a), that eertain provisions be included in contin- geney fee agreements, and providing, in subdivision (b) that “[f]ailure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to colleet a reasonable fee.” Among the recitals required by subdivision (a) are the following: (4) Unless the claim is subjeet to the provisions of Section 6146, a statement that the fee is not set by law but is negotiabie between attorney and client. [©] (5) If the elaim is subject to the provisions of Section 6146, a statement that the rates set forth in that section are the maximum limits for the contingency fee agreement, and that the attorney A-9 and client may negotiate a lower rate.’ Contrary to Harney’s assertion, section 6147 makes abundantly clear the intent of the Legislature to preclude contingency fee agreements providing for rates in excess of the limits set forth in section 6146; it is the failure to recite this which renders an agreement voidable uuder subdivision (b) of section 6147. Finally, the Legislature expressed its purpose in enact- ing MICRA, and that purpose is a publie one, i.e., redue- tion of medical malpractice insurance premiums costs to ensure continued delivery of quality health eare to the citizens of this State. “[A] law established for a publie reason cannot be contravened by a private agreement.” (Civ. Code, § 3513.) We conclude there is nothing in the statutory scheme, or its legislative history, indicating that the Legislature intended to permit waiver of the provisions of Business and Professions Code section 6146 by parties to a contin- geney fee agreement in a medical malpractice case, and moreover, that such waiver is precluded by Civil Code see*ion 3513. (See Waters v. Bourhis (1985) 40 Cal.3d 424, 439, fn. 15 [220 Cal.Rptr. 666, 709 P.2d 469]; Shepherd v. Greene (1986) 185 Cal.App.3d 989, 992 [230 Cal.Rptr. 233].) DECISION The judgment is reversed. Respondents are to bear costs on this appeal. Arabian, J., and Croskey, .J., concurred. ~ «on. Se bd ee. B-1 APPENDIX B ORDER DENYING REVIEW AFTER JUDGMENT BY THE COURT OF APPEAL 2nd Distriet, Division 3, No. BO32887 S009406 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN BANK JAY MARK FINEBERG Vv. HARNEY & MOORE, ETC., ET AL. Respondents’ petition for review DENIED. Mosk, J., is of the opinion the petition should be granted. LUCAS Chief Justice « ro ets Rw oe eee ee PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA 5S . COUNTY OF LOS ANGELES I am a citizen of the United States and a resident of or employed in the City ef Los Angeles, County of Los Angeles; I am over the age of 18 years and not a party to the within action; my business address is 1706 Maple Avenue, Los Angeles, California 90015. On July 21, 1989, I served the within Petition for Writ of Certiorari in re: “Harney & Moore v. Jay Mark Fineberg” in tue United States Supreme Court October Term 1989, N>. , on all parties interested in said action, by placing three copies thereof enclosed in a sealed envelope, with postage thereon fully prepaid, in the United States Post Office mail box at Los Angeles, Cali- fornia, addressed as follows: Sanders, Firestein & Janeway Marshall C. Sanders Thomas H. Janeway 16530 Ventura Boulevard Room 600 Eneino, California 91436 All parties required to be served have been served. I declare under penalty of perjury that the foregoing is true and correct. Executed on July 21, 1989, at Los Angeles, California. of Nordea Neh) J. GORDON HOOPER --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0037%3A1. Public record. Not legal advice.