NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

IV SOLUTIONS, INC., a California No. 17-56609 corporation, D.C. No. Plaintiff-Appellant, 2:16-cv-07153-SJO-MRW

v.

MEMORANDUM*

PACIFICARE LIFE & HEALTH

INSURANCE CO., an Indiana corporation; DOES, 1-30, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted January 8, 2020 Pasadena, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District Judge.

IV Solutions, Inc. (“IVS”) appeals the district court’s grant of summary

judgment on its breach of contract claim in favor of PacifiCare Life & Health

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Insurance Co. (“PacifiCare”). IVS also appeals the district court’s denial of leave

to amend its complaint. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm. As the parties are familiar with the facts, we do not recount them here.

We review de novo a district court’s grant of summary judgment. See

Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018). Summary

judgment is appropriate when, viewing the evidence in the light most favorable to

the nonmoving party, “there is no genuine issue of material fact to be determined at

trial.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).

We review a district court’s denial of leave to amend for abuse of discretion. See

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

IVS brought a breach of contract claim, alleging that, based on a third-party

beneficiary theory, PacifiCare had a contractual duty to pay IVS for services that

IVS provided to PacifiCare’s insured. The district court determined that IVS’s

breach of contract claim for all but one of its claims for payment (i.e., Claims ‘215

and ‘245–‘252) was barred by the four-year statute of limitations. See Cal. Civ.

Proc. Code § 337(a). The parties agree that the four-year statute of limitations

applies, but they disagree over when it started to run.

The limitations period started running when PacifiCare unequivocally

denied IVS’s claims for payment. See Vishva Dev, M.D., Inc. v. Blue Shield of

Cal. Life & Health Ins. Co., 207 Cal. Rptr. 3d 185, 189 (Ct. App. 2016). We agree

2 with the district court that PacifiCare’s Explanation of Benefits (“EOBs”) for

Claims ‘215 and ‘245–‘252 were unequivocal denials. The EOBs contained clear

language communicating that PacifiCare was denying the claims for payment, and

nothing in the EOBs suggested that the denials were conditional or tentative. We

therefore hold that IVS’s breach of contract claim based on Claims ‘215 and ‘245–

‘252 is time-barred because the EOBs for those claims were unequivocal denials,

and IVS filed suit more than four years after the date of the last EOB.

IVS’s arguments to the contrary are unavailing. First, IVS argues that the

EOBs were not unequivocal denials because they instructed IVS to “review the

procedure codes” and “notify [PacifiCare] if any unusual treatments were

performed or if there is additional information clarifying the services and/or

charges.” But as the district court correctly noted, PacifiCare did not condition its

denial of IVS’s claims on the receipt of new information, and its willingness to

consider such information did not render its denial equivocal. See Vishva Dev, 207

Cal. Rptr. 3d at 190. Second, IVS argues that the district court failed to consider

its equitable tolling argument based on PacifiCare’s communications that it was

reprocessing the claims. But the district court did consider this argument, and it

determined that, even if the limitations period were equitably tolled for the five

months during which PacifiCare was reprocessing the claims (from August 2012 to

January 2013), the breach of contract claim based on Claims ‘215 and ‘245–‘252

3 would still be barred. IVS fails to show that this conclusion was erroneous. Third,

IVS points out that in ruling on the motion to dismiss, the district court reached a

contrary result—it determined that the EOBs were not unequivocal denials. But

other than pointing out this fact, IVS does not present any legal authority or

argument showing that the prior decision binds the district court or this court.

We also hold that the district court correctly determined that equitable

estoppel does not apply to IVS’s time-barred claims. Under California law,

equitable estoppel does not apply when a plaintiff has ample time to sue after the

conduct that has induced it to delay its suit ends. See, e.g., Mills v. Forestex Co.,

134 Cal. Rptr. 2d 273, 298 (Ct. App. 2003). PacifiCare’s conduct that allegedly

induced IVS to delay its suit ceased about three years before the limitations period

lapsed. Three years was more than ample time for IVS to sue, and therefore

equitable estoppel does not apply. See Lobrovich v. Georgison, 301 P.2d 460, 464

(Cal. Ct. App. 1956).

As for IVS’s breach of contract claim for its one remaining claim for

payment (i.e., Claim ‘185), the district court determined that the claim failed

because IVS was not a third-party beneficiary under the operative 2007 contract.

A third party may enforce a contract if he is an intended beneficiary of the

contract. See Cal. Civ. Code § 1559. “A third party may qualify as a beneficiary

under a contract where the contracting parties must have intended to benefit that

4 third party and such intent appears on the terms of the contract.” Jones v. Aetna

Cas. & Sur. Co., 33 Cal. Rptr. 2d 291, 295 (Ct. App. 1994).

We agree with the district court that, under the express terms of the 2007

contract, IVS was not an intended third-party beneficiary. IVS, however, argues

that there is a material factual dispute over whether the operative agreement is the

2007 contract or a 2010 contract. In reviewing this argument, we are limited to the

summary judgment record presented to the district court. See Lippi v. City Bank,

955 F.2d 599, 604 (9th Cir. 1992).

PacifiCare submitted evidence supporting that the operative agreement was

the 2007 contract. In its opposition to summary judgment, IVS mentioned the

existence of the 2010 contract and provided a heavily redacted copy of the 2010

contract, but it failed to explain why this was the operative agreement and how this

agreement affected its claims. This was insufficient to create a genuine factual

dispute.1 See Hernandez, 343 F.3d at 1112 (stating that nonmoving party “cannot

defeat summary judgment with allegations in the complaint, or with unsupported

conjecture or conclusory statements”). Thus, the district court correctly

1 After oral argument, we ordered supplemental briefing on the applicability of the 2010 contract. The parties’ supplemental briefs and supporting documents reveal that PacifiCare had produced a largely unredacted copy of the 2010 contract days before it moved for summary judgment. IVS failed to review the document production before filing its opposition. But even after IVS realized that it had a copy of the largely unredacted 2010 contract, it did not seek any relief from the district court.

5 determined that IVS’s breach of contract claim as to Claim ‘185 fails because it

was not an intended third-party beneficiary under the 2007 contract.

Finally, IVS argues that the district court abused its discretion by denying it

leave to amend its complaint. But we agree with the district court that IVS’s

proposed amendments would not save its time-barred claims. The district court

also found that IVS’s proposed amendments would not save its breach of contract

claim based on Claim ‘185, and IVS does not dispute that finding on appeal.

Because IVS’s proposed amendments would be futile, the district court did not

abuse its discretion. See Bonin, 59 F.3d at 845.

AFFIRMED.2

2 We GRANT PacifiCare’s motion to seal Exhibits 2 and 3 attached to the Declaration of Rebecca Paradise. Dkt. No. 51. We also GRANT IVS’s request to take judicial notice of Exhibits 2 and 3 attached to the Declaration of Eric Levinrad, Dkt. No. 56, which are the corporate Statements of Information for Viant, Inc. and Viant Payment Systems, Inc., filed with the California Secretary of State. See Fed. R. Evid. 201.

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