MEMORANDUM DECISION DENYING PLAINTIFFS’ MOTION TO REMAND (Doe. 15) AND GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS FIRST AMENDED COMPLAINT AND DIRECTING PLAINTIFFS TO FILE SECOND AMENDED COMPLAINT (Doc. 12)

Before the Court are Plaintiffs’ motion to remand and Defendant’s motion to dismiss the First Amended Complaint.

A. BACKGROUND.

On January 30, 2007, Plaintiffs Maria Quaresma, an individual and successor in interest of Leonel DaRosa, a deceased individual, and Marshal S. Flam, M.D., filed a Complaint in the Fresno County Superi- or Court. Defendants are BC Life & Health Insurance Company and Does 1-10. The Complaint alleged seventeen causes of action. In pertinent part, the Complaint alleged:

[Emphasis deleted].

On February 27, 2007, Blue Cross of California, contending that it was erroneously sued as BC Life & Health Insurance Company, removed the Complaint to this Court. The Notice of Removal asserts in pertinent part:

On March 2, 2007, Defendant filed a motion to dismiss the Complaint. Plaintiffs filed a First Amended Complaint (FAC) on March 23, 2007. (Doc.10). Defendant’s motion to dismiss the Complaint was denied as moot by Order filed on March 30, 2007. (Doc. 11).

The FAC still names the Defendant as BC Life & Health Insurance Company. The FAC alleges twenty-three causes of action, grouped as follows:

Except as alleged below, all references to ERISA have been deleted in the FAC. Paragraph 1 of the FAC alleges:

In addition, the FAC alleges in pertinent part:

On April 4, 2007, Defendant filed a motion to dismiss the First Amended Complaint, (Doc. 12), which motion Plaintiffs oppose. However, on April 20, 2007, Plaintiffs filed a motion to remand the First Amended Complaint to the Fresno County Superior Court. (Doc. 15).

B. MOTION TO REMAND.

Plaintiffs move to remand the action to the Fresno County Superior Court on the ground that “no federal question exists (since all of the causes of action in the [FAC] are state laws) so that there is no federal subject matter jurisdiction.” Plaintiffs assert that BC Life improperly removed the Complaint to this Court:

28 U.S.C. § 1441 provides in pertinent part:

The removal statute is strictly construed against removal and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). The burden of establishing federal jurisdiction falls on the party invoking removal. Harris v. Provident Life and Acc. Ins. Co., 26 F.3d 930, 932 (9th Cir.1994).

In determining the existence of removal jurisdiction, the Court ordinarily looks to the complaint as originally filed, and not as amended. Id. “[Jjurisdiction must be analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent amendments ... Because of this rule, a plaintiff may not compel remand by amending a complaint to eliminate the federal question upon which removal was based.” Sparta Surgical Corp. v. National Ass’n of Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir.1998).

Given that the Complaint alleged a cause of action under ERISA and sought relief under ERISA, Plaintiffs’ contention that the Complaint was improperly removed on the basis of ERISA preemption is totally unfounded. Plaintiffs filed the FAC to compel remand by eliminating the ERISA cause of action. In Barraclough v. ADP Automotive Claims Services, 818 F.Supp. 1310, 1311-1312 (N.D.Cal.1993), the plaintiff filed a complaint in state court asserting a claim under the Americans with Disabilities Act. After defendant removed the action, the plaintiff moved to remand on the ground that the District Court lacked subject matter jurisdiction. The District Court held:

To the extent that Plaintiffs seek remand on the ground that the removal of the Complaint was improper, Plaintiffs’ motion to remand is DENIED.

C. MOTION TO DISMISS.

Defendant moves to dismiss the state law contract and tort claims alleged in the FAC pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, on the ground that these claims are preempted by ERISA. Defendant also contends that Dr. Flam has no standing to pursue an ERISA claim as an assignee of health care benefits because of the anti-assignment provision in the health care plan, nor as a third party beneficiary of the health care plan.

1. GOVERNING STANDARDS.

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729 , 732 (9th Cir.2001). Dismissal of a claim under Rule 12(b)(6) is appropriate only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir.2003). Immunities and other affirmative defenses may be upheld on a motion to dismiss only when they are established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980) When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir.1998).

2. ERISA PREEMPTION.

In contending that ERISA preempts the state law tort and contract claims alleged in the FAC, Defendant submits the Declaration of Susan L. Horthy, employed as a Legal Assistant in Defendant’s Legal Department. Attached to Ms. Horthy’s Declaration is a copy of Leonel DaRosa’s “2-50 Small Group Employee Application”, showing that Mr. DaRosa was employed by Contente Dairy. Mr. DaRosa selected medical coverage “Premier PPO $20 Copay” and “authorize[d] my employer to deduct from my earnings the contribution (if any) required to apply toward the cost of this plan.” Also attached is a copy of Contente Dairy’s “2-50 Small Group Employer Application”. Under the provision for “Employer Medical Contribution Option”, Contente Dairy selected “Traditional Contribution” with the employee to contribute 90% per month.

The parties do not dispute that the insurance policy at issue is an ERISA plan within the meaning of 29 U.S.C. § 1002 (1).

29 U.S.C. § 1144 (a) provides in pertinent part:

Section 1144(b)(2)(A) provides in pertinent part: “[NJothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance .... ”

The starting point for determining whether ERISA preempts a state law is Section 1144(a). The Supreme Court has emphasized the broad effect of Section 1144(a). See California Division of Labor Standards v. Dillingham, 519 U.S. 316, 324 , 117 S.Ct. 832 , 136 L.Ed.2d 791 (1997) (quoting prior cases using the phrases “clearly expansive”, “broad scope”, “expansive sweep”, “broadly worded”, “deliberately expansive”, and “conspicuous for its breadth”.). The Supreme Court has stated that “[a] law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 , 111 S.Ct. 478 , 112 L.Ed.2d 474 (1990). “Where a State’s law acts immediately and exclusively upon ERISA plans ... or where the existence of ERISA plans is essential to the law’s operation ... that ‘reference’ will result in preemption.” Dillingham, 519 U.S. at 325 , 117 S.Ct. 832 . With regard to the phrase “connection with”, the Supreme Court holds: “[T]o determine whether a state law has the forbidden connection, we look both to ‘the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as to the nature of the effect of the state law on ERISA plans.” Dillingham, id. In analyzing these objectives “[t]he basic thrust of the pre-emption clause [is] to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 657 , 115 S.Ct. 1671 , 131 L.Ed.2d 695 (1995). The Supreme Court has also emphasized that “[t]he principal object of the [ERISA] statute is to protect plan participants and beneficiaries.” Boggs v. Boggs, 520 U.S. 833, 845 , 117 S.Ct. 1754 , 138 L.Ed.2d 45 (1997). However, the Supreme Court “has established a presumption that Congress did not intend ERISA to preempt areas of ‘traditional state regulation’ that are “quite remote from the areas with which ERISA is expressly concerned — ‘reporting, disclosure, fiduciary responsibility, and the like.’ ” ” Rutledge v. Seyfarth, Shaw, Fairweather & Geraldson, 201 F.3d 1212, 1217 , amended, 208 F.3d 1170 (9th Cir.), cert. denied 531 U.S. 992 , 121 S.Ct. 482 , 148 L.Ed.2d 456 (2000), citing Dillingham, 519 U.S. at 330 , 117 S.Ct. 832 .

a. DR. FLAM’S FIRST, SECOND AND THIRD CAUSES OF ACTION.

Paragraph 1 of the FAC alleges that “[p]rior to the filing of this First Amended Complaint, Maria Quaresma, as the sole heir and Successor In Interest of Leonel DaRosa, assigned to Dr. Flam Decedent DaRosa’s claim for insurance benefits against Defendants as herein set forth and Dr. Flam is now the legal owner and holder thereof.”

Plaintiffs’ contend that Dr. Flam’s First, Second and Third Causes of Action are not preempted by ERISA because these causes of action are based on a valid assignment of payment by Mr. DaRosa to Dr. Flam. Plaintiffs assert that, therefore, Dr. Flam is a “non-ERISA entity” whose claims against Defendant in these causes of action cannot be preempted.

Plaintiffs cite General American Life Ins. Co. v. Castonguay, 984 F.2d 1518 (9th Cir.1993). In Castonguay , an insurer, General, brought an action against an ERISA trust and its trustee, alleging breach of contract, fraud, and negligent misrepresentation. The ERISA trust provided health and other benefits to participating car dealers and their employees. The ERISA trust bought an insurance policy from General, under which General was to pay part of the claims made the trust’s plan members. The trust was to pay the remainder, but if it could not, General would protect the plan members by paying on their behalf and then seeking reimbursement from the trust. In order to protect itself in the event of the trust’s insolvency, General drafted an agreement to permit either party to cancel the policy on a month’s notice, to permit General to periodically demand audited financial statements, and to permit General to cancel the policy immediately if the trust did not provide audited financial statements. By the end of 1987, the trust was in the red, but General did not look at any financial statements when it renewed the insurance policy in 1988. Instead, General relied on representations of the trust’s agent in the renewal negotiations that the trust was solvent but that no financial statements were available, and in a document provided by the trust’s agent listing the trust’s assets but not its liabilities. When General finally realized that the trust was insolvent, General canceled the insurance policy and brought suit. At issue on appeal was the personal liability of the trustees for the $3 million shortfall. Noting that questions concerning a trustee’s liability for a trust’s debts are normally determined by state law, the Ninth Circuit held:

The key to distinguishing between what ERISA preempts and what it does not lies, we believe, in recognizing that the statute comprehensively regulates certain relationships: for instance, the relationship between plan and plan member, between plan and employer, between employer and employee (to the extent an employee benefit plan is involved), and between plan and trustee ... Because of ERISA’s explicit language ... and because state laws regulating these relationships (or the obligations flowing from these relationships) are particularly likely to interfere with ERISA’s scheme, these laws are presumptively preempted.

984 F.2d at 1521-1522 .

Plaintiffs also contend that “state law claims by a healthcare provider such as Plaintiff Dr. Flam against a medical insurance company such as Blue Cross for benefit payment (such as Plaintiff Dr. Flam’s individual claims in light of the pre-approval, and assigned claims against Defendant Blue Cross) are generally not subject to removal to federal courts because the physieian/provider is neither an ERISA plan ‘beneficiary’ nor a ‘participant.’ ”.

Plaintiffs cite Blue Cross of California v. Anesthesia Care Assocs. Med. Group, Inc., 187 F.3d 1045, 1053 (9th Cir.1999), as authority that a physician provider’s claims do not affect the relationship between the insurance company and the beneficiaries.

In Anesthesia Care Assocs., Blue Cross brought actions to compel arbitration of medical providers’ claims for breach of provider agreements. The litigation arose from a fee dispute between four medical providers who participated in the Prudent Buyer Plan, a medical care plan offered by Blue Cross. As part of the Prudent Buyer Plan, Blue Cross entered into a standardized contract, the Participating Physician Agreement (the provider agreement), with physicians. Under the provider agreements, Blue Cross agreed to identify the participating physicians in the information materials distributed to members of the Prudent Buyer Plan and to direct its subscribers to these physicians. In turn, the physicians agreed to accept payment from Blue Cross for services rendered to Prudent Buyer Plan subscribers according to specified fee schedules. In the provider agreements, the physician agreed to “seek, accept and maintain evidence of assignment for the payment of Medical Services provided to Members by PHYSICIAN under the applicable Prudent Buyer Benefit Agreement”, that “PHYSICIAN shall seek payment only from BLUE CROSS for the provision of Medical Services,” except pursuant to specified exceptions, that “PHYSICIAN agrees to accept the fee schedule as provided in Exhibit B, attached and made part of this Agreement, or PHYSICIAN’S covered billed charges, whichever is less, as payment in full for all Medical Services provided to Members.” The provider agreements provided for review of new fee schedules by the Blue Cross Physician Advisory/Relations Committee prior to adoption. The provider agreements included arbitration provisions in which the parties agreed to submit disputes concerning the terms of the provider agreements to arbitration pursuant to California law. Each of the medical providers had some patients who were enrolled in the Prudent Buyer Plan as part of a health benefit plan covered by ERISA. The dispute between the medical providers and Blue Cross related to changes in the fee schedules that Blue Cross allegedly made in 1993-1995. 187 F.3d at 1048-1049 . The District Court rejected Blue Cross’ argument that the medical providers’ claims related to an ERISA-covered plan under 29 U.S.C. § 1144 (a). On appeal, the Ninth Circuit ruled that the medical providers claims were not preempted by ERISA’s civil enforcement provision, 29 U.S.C. § 1132 (a), or ERISA’s express preemption provision, 29 U.S.C. § 1144 (a). With regard to Section 1132(a), the Ninth Circuit held:

Id., at 1050-1052. With regard to Blue Cross’ argument that ERISA’s express preemption provision applied to the medical providers’ claims on the grounds that the claims will impose economic burdens on ERISA plans and their beneficiaries and will implicate relationships regulated by ERISA, the Ninth Circuit, relying on New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 , 115 S.Ct. 1671 , 131 L.Ed.2d 695 (1995), and De Buono v. NYSA ILA Med. and Clinical Sersv. Fund, 520 U.S. 806 , 117 S.Ct. 1747 , 138 L.Ed.2d 21 (1997), ruled that the economic effects that the medical providers’ claims might have on ERISA plans are not sufficient for preemption to occur. Id. at 1052-1054.

Plaintiffs further assert that “the law is clear that claims under ERISA do not cover such non-enumerated parties as assignees”, citing Allstate Insurance Company v. 65 Security Plan, 879 F.2d 90, 94 (3rd Cir.1989) and Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 934 (9th Cir.1994).

In 65 Security Plan, Allstate brought suit in state court against a beneficiary and an ERISA employee benefit plan providing medical insurance, to determine whether the insurer’s medical coverage or that of the ERISA plan’s was primary. At the time Michael Lindemuth was involved in an automobile accident, he was covered as a dependent under Allstate’s no-fault automobile insurance policy issued to his father, and also covered as a dependent under a medical insurance program provided by the ERISA plan. Following the accident, claims for no-fault insurance benefits were presented to Allstate, which paid the claims. Allstate thereafter contended that its insurance policy only provided “excess” coverage and that the ERISA plan must both reimburse Allstate for its payments to Lindemuth and assume responsibility for all such future payments. The ERISA plan, citing its own “escape” and “excess” clauses, contended that it was not the primary insurer and refused to reimburse Allstate. 879 F.2d at 92 . Allstate’s complaint sought an order that (1) Lindemuth’s medical expenses are included within the coverage of the Plan and that Allstate is only secondarily liable for them; and (2) Allstate is entitled to indemnity or contribution from the Plan for Lindemuth’s medical expenses paid to date. The Third Circuit held that ERISA’s civil enforcement provision, Section 1132 preempted Allstate’s claims:

Id. at 94.

In Harris v. Provident Life, a former employee brought an action alleging state law causes of action for misrepresentation and breach of contract with respect to coverage under the employer’s health care plan, and alleging a claim under ERISA for breach of fiduciary duty. The Ninth Circuit ruled in pertinent part:

Id. at 933. The Ninth Circuit further held that, because Harris was not a plan participant, their state law claims were not within the scope of Section 1132(a) and therefore not completely preempted. Id. at 934.

Plaintiffs’ contention that the First, Second, and Third Causes of Action brought by Dr. Flam as the assignee of Mr. Da Rosa’s claims against BC Life are not subject to ERISA preemption is not supported by the cases upon which Plaintiffs rely and is not supported by Ninth Circuit precedent, precedent not cited or distinguished by Plaintiffs. As Defendant contends, the controlling Ninth Circuit case is Misic v. Building Serv. Employees Health & Welfare Trust, supra, 789 F.2d 1374 (9th Cir.1986), the case distinguished by the Ninth Circuit in Blue Cross of California v. Anesthesia Care Assocs. Med. Group, Inc., supra, 187 F.3d 1045 .

In Misic , a dentist rendered dental services to beneficiaries of an ERISA plan that provided dental benefits of 80 percent of the cost of their dental care. 789 F.2d at 1376 . The beneficiaries assigned their rights to reimbursement to the dentist who in turn billed the plan directly. When the plan did not pay 80 percent of the dentist’s bill, the dentist sued to recover the deficiencies in payment. See id. The Ninth Circuit rejected the argument that, because only the parties named in Section 1132 have standing to sue under ERISA, and assignees are not named, Dr. Misic did not have standing to sue under ERISA:

Id. at 1378-1379 .

Plaintiffs’ failure to discuss Misic and their reliance on cases distinguishable from the allegations in the FAC, compel the conclusion that the First, Second and Third Causes of Action, brought by Dr. Flam as the assignee of Mr. DaRosa’s claims against Defendant under the ERISA plan are governed and pre-empted by ERISA because, as discussed infra, the claims assigned to Dr. Flam by Mr. DaRosa are pre-empted by ERISA.

Defendant contends that Dr. Flam’s causes of action based on the assignment to him by Mr. DaRosa must be dismissed because Part XI, General Provisions, of the Blue Cross Policy, attached to the FAC as Exhibit 2a-c, provides:

Relying on this policy provision, Defendant suggests that Dr. Flam does not have standing to sue for the recovery of Mr. DaRosa’s ERISA benefits. Defendant cites Davidowitz v. Delta Dental Plan of California, Inc., 946 F.2d 1476 (9th Cir.1991).

In Davidowitz , Delta Dental Plan provided dental benefits to employees under a welfare benefit plans governed by ERISA. Under the plans, Delta agreed to pay 70% of the beneficiary’s dental bill and the beneficiary paid the co-payment balance. Some of the dental service providers participated, while others did not. A beneficiary was free to go to either a participating or a non-participating dentist; in either ease, Delta paid the same percentage of the bill. However, Delta paid participating dentists directly, while non-participating dentists must collect from the beneficiary. In consideration for direct Delta payment, participating dentists agreed to bill and attempt to collect the co-payment from beneficiaries, and to meet Delta quality standards. Neither obligation applied to non-participating dentists. To circumvent non-direct payment, some non-participating dentists asked beneficiaries to assign their rights to receive Delta’s checks to the dentists in exchange for a waiver of the co-payment. Delta’s plans provided: “Payment for services provided by a dentist who is not a Participating Dentist shall be made to an Eligible Person, and shall not be assignable.” Appellees, a group of non-participating dentists, sought a preliminary injunction ordering Delta to honor beneficiary assignments. The District Court granted the preliminary injunction and the Ninth Circuit reversed, concluding that “ERISA welfare plan payments are not assignable in the face of an express non-assignment clause in the plan.” 946 F.2d at 1481 .

Plaintiffs respond that Blue Cross’ contention “is based solely on the misinterpretation of a vague and ambiguous clause in the insurance contract which prohibits the transfer of the health care policy itself.” Plaintiffs assert that the above-quoted language in the policy “is a prohibition only to the transfer of the health care policy itself, and not the accounts receivable from Plaintiff Decedent DaRosa and Plaintiff Dr. Flam.” Comparing the “Benefits Not Transferable” provision in the Blue Cross policy to the anti-assignment provision in the Delta Dental plans at issue in Davidowitz , Plaintiffs argue that the Blue Cross provision “is far less expressive about the prohibition of assignment of payment for services” and that “[o]n its face, the language is clearly the prohibition of the transfer of the health care policy [sic].” Plaintiffs cite Royal Indem. Co. v. Kaiser Aluminum & Chemical Corp., 516 F.2d 1067, 1072 (9th Cir.1975):

Plaintiffs also refer to Feit v. St. Paul Fire & Marine Ins. Co., 27 Cal.Rptr. 870 , 209 Cal.App.2d Supp. 825, 828 (1962):

Relying on these cases, Plaintiffs argue that Defendant’s attempt to construe the “Benefits Not Transferable” provision to prohibit the assignment of accounts receivable to Dr. Flam leads to an absurd result:

Plaintiffs’ argument that the “Benefits Not Transferable” provision only prohibits transfer of the policy is belied by the terms of the provision itself. There is no language in that provision from which such a construction can be inferred. The provision very clearly states that the right to benefits cannot be transferred.

Defendant’s motion to dismiss the First, Second and Third Causes of Action of the Amended Complaint asserted by Dr. Flam as assignee of Decadent DaRosa’s claims is GRANTED WITH LEAVE TO AMEND on the basis of ERISA preemption, see discussion infra, and because of Dr. Flam’s lack of standing to assert these claims.

b. Dr. Flam’s Fourth through Twelfth Causes of Action.

Defendant further argues that Dr. Flam’s state law contract or quasi-contract causes of action (B 4-6) and his state law tort claims based on Defendant’s preapproval (C 7-12) are preempted by ERISA.

The Fourth Cause of Action is for breach of contract and/or promissory estoppel and alleges that Dr. Flam and Defendant entered into an oral agreement whereby Defendant agreed to provide health insurance to Decedent DaRosa “so as to pay the bills of Decedent DaRosa’s treating physician (Dr. Flam) as to the aforementioned Alimta treatments”; that Defendant breached its oral agreement by failing to provide health insurance for the Alimta treatments for which Dr. Flam obtained pre-approval from Defendant and by failing to timely reconsider its denial of Decedent DaRosa’s claim upon receiving Decedent DaRosa’s/Dr. Flam’s valid appeal with supporting documents and/or by failing to consult with Dr. Flam.

The Fifth Cause of Action is for declaratory relief and alleges:

The Sixth Cause of Action is captioned “Breach of Quasi-Contract (Common Count of Quantum Meriut)” and alleges that “[b]etween May 2005 and October 2006, on BC Life’s promise to pay the reasonable value of the Alimta treatments provided by Dr. Flam to Decedent DaRosa, Dr. Flam provided Decedent DaRosa with Alimta for the purpose of treating Decedent DaRosa’s cancer” and that BC Life has wrongfully refused to pay for the Alimta treatments despite its pre-approval, and that “[a]s a result of BC Life’s breach of the oral pre-approval agreement and unjustifiable refusal to pay Dr. Flam for the Alimta treatments, Dr. Flam has sustained substantial damages.”

The Seventh Cause of Action is for breach of the implied covenant of good faith and fair dealing. The Seventh Cause of Action alleges that Dr. Flam obtained pre-approval from BC Life and rendered treatment to Decedent DaRosa in reliance of BC Life’s pre-approval promise of payment; that implied within the pre-approval was BC Life’s agreement to act in good faith and deal fairly with Dr. Flam in carrying out its responsibilities under the pre-approval promise; and that BC Life failed in these obligations. The Seventh Cause of Action further alleges:

The Eighth Cause of Action is for negligence. The Eighth Cause of Action alleges that prior to entering into the above-mentioned agreement to pay Dr. Flam, BC Life, through its authorized representatives, represented that Decedent DaRosa would be entitled to health insurance benefits for payment to Dr. Flam; that the policy of insurance clearly provides for the treatment sought by DaRosa and recommended by his doctors; and that, prior to rendering the treatment, Dr. Flam obtained pre-approval for BC Life and rendered the treatment in reliance on BC Life’s pre-approval promise of payment. The Eighth Cause of Action further alleges:

The Eighth Cause of Action also claims that BC Life breached its duty “by acting or failing to act in a manner consistent with the reasonable standard of care required by applicable case law, California statutory law, California regulations, and other similar standards, in its conduct of failing and refusing to timely reconsider a valid appeal with supporting documents relating to the health insurance provided by BC Life to Decedent DaRosa and/or failing to consult with ... Dr. Flam ...” and that “BC Life breached its obligations and duties to act fairly and in good faith towards Dr. Flam” by failing to act with regard to the California Insurance Code provisions and regulations quoted above in Paragraphs 63-64 of the FAC.

The Ninth Cause of Action is for fraud and deceit. The Ninth Cause of Action alleges that, prior to entering into the above-mentioned agreement to pay Dr. Flam, BC Life, through its authorized representatives, represented that Decedent DaRosa would be entitled to health insurance benefits for payment to Dr. Flam; that the policy of insurance clearly provides for the treatment sought by DaRosa and recommended by his doctors; and that, prior to rendering the treatment, Dr. Flam obtained pre-approval for BC Life and rendered the treatment in reliance on BC Life’s pre-approval promise of payment. The Ninth Cause of Action further alleges:

The Tenth Cause of Action is for negligent misrepresentation. The Tenth Cause of Action is based on the same misrepresentations described in the Ninth Cause of Action and alleges that “BC Life made the representations without reasonable grounds for believing them to be true.”

The Eleventh Cause of Action is for fraud — false promise. The Eleventh Cause of Action is based on the same misrepresentations described in the Ninth Cause of Action. The Eleventh Cause of Action further alleges that Dr. Flam “was ignorant of BC Life’s secret intention not to perform and Dr. Flam, could not, in the exercise of reasonable diligence, have discovered BC Life’s secret intention not to perform”; that BC Life failed to abide by its promises; that the conduct of BC Life “was an intentional misrepresentation, deceit, or concealment of a material fact known to BC Life with the intention on the part of BC Life of thereby fraudulently depriving Dr. Flam of legal rights or otherwise causing injury and was despicable conduct that subjected Dr. Flam to cruel and unjust hardships in conscious disregard of Dr. Flam’s rights, so as to justify an award of exemplary and punitive damages.” The Eleventh Cause of Action further alleges that “BC Life breached its obligations and duties to act fairly and in good faith towards Dr. Flam” by failing to act with regard to the California Insurance Code provisions and regulations quoted above in Paragraphs 63-64 of the FAC. The Eleventh Cause of Action alleges:

The Twelfth Cause of Action is for violation of the California Unfair Business Practices Act, Business & Professions Code §§ 17200 et seq. The Twelfth Cause of Action alleges that Defendant engaged in unfair competition and unlawful, unfair or fraudulent business practices “as alleged in this Complaint [sic], including failing to properly reconsider its denial of Dr. Flam’s claim upon receiving Dr. Flam’s appeal with supporting documents and/or failing to consult with Decedent DaRosa’s physicians.” The Twelfth Cause of Action alleges that Defendant “further breached its obligations and duties to act fairly and in good faith” towards Dr. Flam by [by failing to act with regard to the California Insurance Code provisions and regulations quoted above in Paragraphs 63-64 of the FAC.] The Twelfth Cause of Action alleges that Defendant has been “unjustly enriched and should be required to disgorge the funds paid to it and be restrained and enjoined from engaging in such acts in the future” and that:

Plaintiffs argue that these twelve causes of action are not preempted by ERISA because Dr. Flam is a “nonERISA entity” and cannot have his individual claims preempted, citing Allstate Ins. Co. v. 65 Security Plan, supra, 879 F.2d 90 and Harris v. Provident Life and Accident Insurance Co., supra, 26 F.3d 930 .

47 F.3d at 1009-1010 .

In Cedars-Sinai Medical Center v. National League of Postmasters of the United States, 497 F.3d 972 (9th Cir.2007), Cedars-Sinai, a health services provider brought a state court action against the administrator of an ERISA plan, PBP Health, alleging, inter alia, breach of contract and negligent misrepresentation in connection with partial reimbursement of claims for treatment of an employee/plan enrollee. The Ninth Circuit agreed with Cedars-Sinai that its independent, non-derivative claims for breach of contract and negligent misrepresentation were not preempted by ERISA, relying on The Meadows, swpra, and Memorial Hospital System, supra.

These Ninth Circuit decisions support denial of the motion to dismiss to the extent Dr. Flam’s causes of action are based on allegations of breach of contract and misrepresentation based on allegations that Defendants promised or pre-approved reimbursement for the cancer treatment at issue.

However, the Fourth through Twelfth Causes of Action include allegations that Defendant failed to process Decedent DaRosa’s claim within time limits set forth in California Insurance Code § 790.03(h) and 10 California Code of Regulations §§ 2695.2 and 2695.7, and denied Dr. Flam’s claim for reimbursement in violation of California Health & Safety Code § 1367.21 and California Insurance Code § 10123.195. These allegations “relate to” the ERISA plan because these state laws encroach on a relationship regulated by ERISA, i.e., between the ERISA plan and the beneficiary, Decedent DaRosa.

Defendant’s motion to dismiss the Fourth through Twelfth Causes of Action is GRANTED IN PART AND DENIED IN PART WITH LEAVE TO AMEND,

c. Decedent DaRosa’s State Law Causes of Action.

The Thirteenth through Twenty-Third Causes of Action are brought by Decedent DaRosa. As noted above, these causes of action are as follows:

All of these causes of action as well as the First, Second and Third Causes of Action, contain essentially the same allegations as set forth above in connection with Dr. Flam’s state law causes of action.

Defendant moves to dismiss these causes of action on the ground of ERISA preemption.

In Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41 , 107 S.Ct. 1549 , 95 L.Ed.2d 39 (1987), the Supreme Court addressed whether ERISA preempts state common law tort and contract actions asserting improper processing of a claim for benefits under an ERISA plan. The Supreme Court held:

481 U.S. at 47-48, 107 S.Ct. 1549 .

In Cleghorn v. Blue Shield of California, 408 F.3d 1222 (9th Cir.2005), Cleghorn, a health plan participant sued the insurer in state court, alleging on behalf of himself, all others similarly situated, and the general public, claims under the California Unfair Competition Law and California Consumer Legal Remedies Act. Cleghorn’s complaint requested general damages, injunctive relief, disgorgement of illegally-gained profits, and punitive damages. The action was removed on the ground of ERISA preemption. Cleghorn then amended his complaint to delete his individual claims. The District Court denied Cleghorn’s motion to remand and, after Cleghorn declined to amend the complaint to include claims under ERISA’s civil enforcement scheme, dismissed the action. The Ninth Circuit, relying primarily on Aetna Health Inc. v. Davila, 542 U.S. 200 , 124 S.Ct. 2488 , 159 L.Ed.2d 312 (2004), held in pertinent part:

408 F.3d at 1225-1226 .

In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 , 105 S.Ct. 3085 , 87 L.Ed.2d 96 (1985), the Supreme Court held:

Governing case law cited above establishes that the First, Second and Third Causes of Action assigned to Dr. Flam by Decedent DaRosa and Decedent DaRosa’s causes of action alleged in the Thirteenth through Twenty-Third Causes of Action are preempted by ERISA. The motion to dismiss the First, Second, Third and Thirteenth through Twenty-Third Causes of Action is GRANTED WITH LEAVE TO AMEND to seek civil enforcement of ERISA benefits pursuant to 29 U.S.C. § 1132 (a).

d. ERISA “SAVINGS CLAUSE

Plaintiffs argue that all of the causes of action alleged in the Amended Complaint are not preempted because of 29 U.S.C. § 1144 (b)(2)(A): “ [Nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance .... ”

Plaintiffs assert that the “gravamen of every one of the Plaintiffs’ causes of action is based on the alleged violation of the California Insurance Code, California Health & Safety Code, California Business & Professions Code, and/or other California common law duties; all of which reflect a clear State policy of regulating insurance by prohibiting the bad faith failure by insurers such as Defendant Blue Cross to promptly pay the rightful claims of an insured such as Plaintiff Decedent DaRosa and/or his assignee Plaintiff Dr. Flam.”

Plaintiffs cite Lewis v. Aetna U.S. Healthcare, Inc., 78 F.Supp.2d 1202 (N.D.Okla.1999).

In Lewis , following payment of the insurance proceeds, the beneficiary of a decedent’s life insurance policy issued as part of an employee benefit plan sued the insurance company in state court, alleging breach of contract and bad faith based on undue delay in payment, and seeking compensatory and punitive damages. The District Court, discussing the cause of action for tortious breach of the implied covenant of good faith and fair dealing recognized in Oklahoma by Christian v. American Home Assurance Co., 577 P.2d 899 (Okla.1977), ruled that the cause of action constitutes a state law that regulates insurance under 29 U.S.C. § 1144 (b)(2)(A). 78 F.Supp.2d at 1212-1214 .

Plaintiffs do not point out that this holding in Lewis is not followed by the Tenth Circuit or by the Supreme Court of Oklahoma. See Conover v. Aetna U.S. Healthcare, Inc., 167 F.Supp.2d 1317, 1319-1322 (N.D.Okla.2001), aff'd, 320 F.3d 1076 (10th Cir.2003), cert. denied, 542 U.S. 936 , 124 S.Ct. 2902 , 159 L.Ed.2d 812 (2004); Hollaway v. UNUM Life Ins. Co. of America, 89 P.3d 1022 (Okla.2003).

Plaintiffs also cite Hood v. Prudential Insurance Company of America, 460 So.2d 1227 (Ala.1984).

In Hood , a discharged employee, Hood, brought suit against the insurer, Prudential, and an ERISA plan for bad-faith refusal to pay a claim under a group disability policy. The Supreme Court of Alabama agreed with Hood that, pursuant to 29 U.S.C. § 1144 (b)(2)(A), Alabama law governs and regulates insurance companies:

In contrast to the situation in Alessi a bad faith refusal to pay action brought against Prudential, an insurance company, neither directly nor indirectly affects the terms or conditions of employee benefit plans governed by ERISA. See 29 U.S.C. § 1144 (c)(2).

Title 29 U.S.C., § 1144 (b)(2)(B), restricts the application of the saving clause in § 1144(b)(2)(A) for the purpose of directly or indirectly regulating ERISA pension plans. It reads in part:

460 So.2d at 1230-1231 . But see Simmons v. Prudential Ins. Co. of America, 641 F.Supp. 675, 678 (D.Colo.1986) (“In face of over-whelming opinion to the contrary ... [t]he case of Hood v. Prudential Ins. Co., seems to be the aberration, not the rule.”)

Plaintiffs do not cite any Ninth Circuit or Supreme Court authority in support of their position.

Defendant cites Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 493-494 (9th Cir.1988), cert. denied, 492 U.S. 906 , 109 S.Ct. 3216 , 106 L.Ed.2d 566 (1989). In Kanne the Ninth Circuit held that California Insurance Code § 790.03(h) is preempted by ERISA. The Ninth Circuit assumed, without deciding, that Section 790.03(h) is a law regulating insurance under the savings clause, but concluded:

In McBride v. PLM International, Inc., 179 F.3d 737, 744-745 (9th Cir.1999), the Ninth Circuit held that a claim for breach of the implied covenant of good faith and fair dealing was preempted by ERISA. See also Parrino v. FHP, Inc., 146 F.3d 699, 703-704 (9th Cir.), cert. denied, 525 U.S. 1001 , 119 S.Ct. 510 , 142 L.Ed.2d 423 (1998):

In Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329 , 123 S.Ct. 1471 , 155 L.Ed.2d 468 (2003), the Supreme Court ruled:

Id. at 341-342, 123 S.Ct. 1471 . Prior to this holding, the Supreme Court utilized the test first articulated in Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740 , 105 S.Ct. 2380 , 85 L.Ed.2d 728 (1985), and described in UNUM Life Insurance Co. of America v. Ward, 526 U.S. 358 , 119 S.Ct. 1380 , 143 L.Ed.2d 462 (1999) as follows:

A recent Ninth Circuit decision of assistance in resolving this issue is Elliot v. Fortis Benefits Ins. Co., 337 F.3d 1138 (9th Cir.), cert. denied, 540 U.S. 1090 , 124 S.Ct. 965 , 157 L.Ed.2d 796 (2003).

In Elliot , an insured sued a long-term disability benefits insurer, asserting claims under ERISA for the policy benefits, and under Montana’s Unfair Trade Practices Act for non-ERISA compensatory and punitive damages. The district court granted the insurer’s motion for judgment on the pleadings, basing its finding of preemption of two separate ERISA provisions:

337 F.3d at 1141-1142 . The Ninth Circuit discussed the various Supreme Court decisions addressing the application of Section 1144(b)(2)(A), including UNUM Life Insurance Co. of America v. Ward, id. at 1142-1146. The Ninth Circuit stated:

337 F.3d at 1146-1148 .

Subsequent to Elliot , the Supreme Court in Aetna Health Inc. v. Davila, 542 U.S. 200, 216-217 , 124 S.Ct. 2488 , 159 L.Ed.2d 312 (2004) held in pertinent part:

542 U.S. at 216-218 , 124 S.Ct. 2488 . As noted supra, the Ninth Circuit applied Davila in Cleghom v. Blue Shield of California, supra, 408 F.3d at 1225-1226 .

Plaintiffs total failure to cite Supreme Court or Ninth Circuit authority and the force of the decisions quoted are persuasive that Plaintiffs’ assertion that the causes of action alleged in the Amended Complaint are not preempted because of the saving clause of Section 1144(b)(2)(A) are unfounded.

CONCLUSION

For the reasons stated above consistent with this Memorandum Decision and the rulings in open court:

1. Plaintiffs’ motion to remand is DENIED;

2. Defendant’s motion to dismiss is GRANTED IN PART AND DENIED IN PART WITH LEAVE TO AMEND:

a. The First, Second, Third and Thirteenth through Twenty-Third Causes of Action are dismissed with leave to amend to allow Decedent DaRosa to seek civil enforcement of ERISA benefits pursuant to 29 U.S.C. § 1132 (a).

b. The Fourth through Twelfth Causes of Action are dismissed with leave to amend to allege claims by Dr. Flam for breach of contract and misrepresentation based on allegations that Defendants promised or pre-approved reimbursement for the cancer treatment at issue. The Fourth through Twelfth Causes of Action are dismissed without leave to amend based on ERISA pre-emption to the extent these causes of action include allegations that Defendant failed to process Decedent DaRosa’s claim within the time limits set forth in California Insurance Code § 790.03(h) and 10 California Code of Regulations §§ 2695.2 and 2695.7, and denied the claim for reimbursement in violation of California Health & Safety Code § 1367.21 and California Insurance Code § 10123.195.

3. Counsel for Defendant shall prepare and lodge a form of Order within 5 days of the filing date of this Memorandum Decision;

4. Plaintiffs shall file a Second Amended Complaint in compliance with the rulings herein within 30 days of the filing date of the Order.

IT IS SO ORDERED.

. Plaintiffs’ Complaint and Amended Complaint are replete with underlined, bolded and/or italicized passages. This format makes the pleadings extremely difficult to read and serves no valid purpose. Plaintiffs are ordered to refrain from this format in future filings in this Court. . Plaintiffs’ brief in opposition to the motion to dismiss is confusingly worded because it keeps referring to removal as being improper. As ruled above, the removal was proper. References to Plaintiffs’ arguments using the terms "remove” or "removal” in discussing ERISA preemption are because of Plaintiffs’ briefs and not because removal remains an issue in resolving the motion to dismiss. . In an extremely confusing argument, Plaintiffs contend that Defendant's "affirmative defense” of ERISA preemption cannot establish federal subject matter jurisdiction. In so arguing, Plaintiffs cite cases holding that an action may not be removed to federal court on the basis of a federal defense. This argument is without merit. The action was removed because Plaintiff’s Complaint alleged an ERISA claim. Because an ERISA claim was alleged in the Complaint, a federal court had and has subject matter jurisdiction. In a footnote, Plaintiffs assert: [T]he same jurisdictional arguments are pertinent to defeat the instant Motion to Dismiss Because Defendant Blue Cross Relies Solely on its affirmative defense of ERISA preemption [sic]. Plaintiffs cite no authority in support of this contention. In Estes v. Federal Express Corp., 417 F.3d 870, 872-873 (8th Cir.2005), the Eighth Circuit held: Estes also argues that the district court erred by prematurely deciding the defendants’ affirmative defense of preemption. However, in their notice of removal, the defendants raised the doctrine of complete preemption, contending all of Estes' state law claims 'fall within ERISA's civil enforcement scheme', 29 U.S.C. § 1132 (a)(1)(B).' Estes was unmistakenably placed on notice of the defendants' ERISA preemption contention. . Plaintiffs also cite Hermann Hospital v. MEBA Medical & Benefits Plan, 845 F.2d 1286, 1288-1289 (5th Cir.1988). However, Hermann Hospital followed Second Circuit authority and declined to follow Ninth Circuit authority. This Court is bound by Ninth Circuit precedent. Therefore, Hermann Hospital is not discussed further.