I. INTRODUCTION

20 21 Before the Court is Defendant Empire HealthChoice Assurance, Inc.’s 22 (“Empire”) Motion to Dismiss the First Amended Complaint (“Motion” and “FAC,” 23 respectively) filed by Plaintiff IV Solutions, Inc. (“IVS”). (Mot. to Dismiss FAC 24 (“Mot.”), ECF No. 41.) The issue is fully briefed. (See Mot.; Opp’n to Mot. 25 (“Opp’n”), ECF No. 42; Reply ISO Mot. (“Reply”), ECF No. 43.) For the following 26 27 28 1 reasons, the Court GRANTS Empire’s Motion and DISMISSES IVS’s FAC 2 WITHOUT LEAVE TO AMEND.1 3 II. PROCEDURAL HISTORY 4 IVS initiated this action for fraud, breach of contract, and open book account in 5 the Los Angeles County Superior Court on June 23, 2017. (Notice of Removal 6 (“NOR”) ¶ 1, ECF No. 1; Decl. of Farah Tabibkhoei Ex. 1 (“Compl.”), ECF No. 1-2.) 7 After removing the case to this Court, Empire moved to dismiss IVS’s Complaint 8 under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Mot. to Dismiss Compl., 9 ECF No. 10.) At the time, the Court granted Empire’s motion to dismiss with 10 prejudice because the applicable statutes of limitations barred IVS’s claims, and 11 neither equitable tolling nor equitable estoppel applied in this case. (Am. Order 12 Granting Mot. to Dismiss Compl. (“MTD Order”), ECF No. 25.) IVS appealed. 13 (Notice of Appeal, ECF No. 29.) 14 Upon review, the U.S. Court of Appeals for the Ninth Circuit affirmed the 15 Court’s dismissal of IVS’s breach of contract claim, as well as the Court’s rejection of 16 the doctrines of equitable tolling and equitable estoppel. IV Sols., Inc. v. Empire 17 HealthChoice Assurance, Inc., 800 F. App’x 499, 500 (9th Cir. 2020). However, the 18 Ninth Circuit reversed and remanded the Court’s denial of leave to amend because, in 19 its view, IVS “had no opportunity . . . to address the [C]ourt’s basis for dismissal,” 20 and IVS may have been “able to allege additional facts in an amended complaint that 21 show, in the health insurance context, its breach of contract claim is not barred by 22 either provision of section 1657.” Id. at 501. After the Ninth Circuit issued its ruling, 23 IVS filed its FAC alleging only breach of contract, and Empire once again moves to 24 dismiss. (See FAC, ECF No. 38; Mot.) 25 26 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 III. FACTUAL BACKGROUND 2 The alleged facts have not changed much. IVS is a home infusion pharmacy 3 that provided medical services to Empire’s insured, M.M.2 (See generally FAC.) 4 After being diagnosed with hypogammaglobulinemia, M.M. was prescribed an 5 “urgent administration of intravenous immunoglobulin” (“IVIG”). (FAC ¶ 6.) M.M. 6 was referred to IVS because it was the only provider able to promptly administer the 7 prescribed IVIG treatments. (FAC ¶ 8.) 8 IVS first administered IVIG treatments to M.M. on February 25, 2011, which 9 Empire subsequently authorized. (FAC ¶¶ 9–10.) Similarly, Empire authorized IVS 10 to provide M.M. with IVIG treatments through June 1, 2011. (FAC ¶ 10.) In 11 July 2011, Empire informed IVS that it was “no longer authorized” to provide IVIG 12 treatments to M.M. because IVS was an out-of-network provider. (FAC ¶ 11.) 13 However, there was no in-network provider available to administer IVIG treatments to 14 M.M. (FAC ¶ 11.) On February 20, 2012, Empire again authorized IVS to provide 15 medical services to M.M. through February 2013. (FAC ¶¶ 12, 13(a).) Empire agreed 16 to pay IVS “for its services at a rate of 100% of [IVS’s] billed charges for such 17 services.” (FAC ¶ 13(a); see also FAC ¶¶ 13(b)–17.) Based on this alleged 18 agreement, IVS provided IVIG services to M.M. from February 25, 2011 to 19 September 2012, and IVS claims it “is entitled to be paid its billed charges for the 20 services provided to M.M.” (FAC ¶¶ 15, 18.) IVS billed Empire a total of 21 $5,954,020.89 for services provided to M.M., but Empire paid only $103,050.63. 22 (FAC ¶ 19.) 23 Now, IVS further alleges that, in general, healthcare insurers like Empire are 24 not required to pay for billed charges until after a claim has been submitted, reviewed, 25 verified, and reprocessed as necessary. (FAC ¶ 21–23.) In this case, IVS alleges that 26 Empire “did not complete the reprocessing of [IVS]’s claims until July 29, 2013 at the 27 earliest, when [Empire] informed [IVS] that it had ‘repriced’ [IVS]’s claims and 28 2 M.M.’s identity is known to Empire and will remain confidential to protect his or her privacy. 1 would be paying additional amounts to [IVS] based on such repricing.” (FAC ¶ 24.) 2 Thus, IVS claims that “the payments due [IVS] for the services rendered were not 3 reasonably due until July 29, 2013, at the earliest.” (FAC ¶ 24.) Notably, though, 4 IVS alleged in its initial Complaint that it notified Empire of shortfalls in Empire’s 5 payments “[b]eginning in and about April 3, 2012.” (Compl. ¶ 26; see also FAC ¶ 25 6 (omitting mention of shortfalls in payments and alleging that the parties “engaged in 7 the processing and reprocessing of claims” during that time).) Moreover, IVS 8 maintains that on October 4, 2012, Empire told IVS that it “was working on getting 9 the 2012 claims processed that were denied in error.” (FAC ¶ 26(c); see also Compl. 10 § 27(c).) 11 IV. LEGAL STANDARD 12 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 13 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 14 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 15 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 16 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 17 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 18 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 19 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 20 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 21 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 22 The determination of whether a complaint satisfies the plausibility standard is a 23 “context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. at 679. A court is generally limited to the 25 pleadings and must construe all “factual allegations set forth in the complaint . . . as 26 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 27 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 28 1 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 2 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 3 “A party cannot amend pleadings to ‘directly contradict an earlier assertion 4 made in the same proceeding.’” Airs Aromatics, LLC v. Op. Victoria’s Secret Stores 5 Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014) (brackets omitted) (quoting 6 Russell v. Rolfs, 893 F.2d 1033, 1307 (9th Cir. 1990)); see also Reddy v. Litton Indus., 7 Inc., 912 F.2d 291, 296–97 (9th Cir. 1990) (“[An] amended complaint may only 8 allege ‘other facts consistent with the challenged pleading.’” (quoting Schreiber 9 Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). 10 “Where allegations in an amended complaint contradict those in a prior complaint, a 11 district court need not accept the new alleged facts as true, and may, in fact, strike the 12 changed allegations as ‘false and sham.’” Azadpour v. Sun Microsystems, Inc., 13 No. C06-03272 MJJ, 2007 WL 2141079, at *2 n.2 (N.D. Cal. July 23, 2007) (citing 14 Reddy, 912 F.2d at 296). 15 Where a district court grants a motion to dismiss, it should generally provide 16 leave to amend unless it is clear the complaint could not be saved by any amendment. 17 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 18 F.3d 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 19 determines that the allegation of other facts consistent with the challenged pleading 20 could not possibly cure the deficiency.” Schreiber, 806 F.2d at 1401 (emphasis 21 added). Thus, leave to amend “is properly denied . . . if amendment would be futile.” 22 Carrico v. City and Cty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011). 23 V. DISCUSSION 24 The Court once again examines whether IVS’s breach of contract claim is 25 precluded by the statute of limitations. A district court may dismiss claims if the 26 running of the statute of limitations is apparent on the face of the complaint and if “the 27 assertions of the complaint, read with the required liberality, would not permit the 28 plaintiff to prove that the statute was tolled.” Cervantes v. Countrywide Home Loans, 1 Inc., 656 F.3d 1034, 1045 (9th Cir. 2011) (quoting Jablon v. Dean Witter & Co., 614 2 F.2d 677, 682 (9th Cir. 1980)). 3 The statute of limitations for a written contract is four years. Cal. Civ. Proc. 4 Code § 337. A claim for breach of contract “accrues at the time of breach, which then 5 starts the limitations period running.” Cochran v. Cochran, 56 Cal. App. 4th 1115, 6 1120 (1997). When a contract does not specify a time for performance, California 7 Civil Code section 1657 determines when performance is due and, in turn, when the 8 statute of limitations begins to run. Under section 1657, a party must perform within a 9 reasonable time, but if performance can be “done instantly--as, for example, if it 10 consists in the payment of money only--it must be performed immediately upon the 11 thing to be done being exactly ascertained.” Cal. Civ. Code § 1657. 12 In this case, the Ninth Circuit “conclude[d] that IVS’s claim is untimely under 13 either the reasonable time provision or the immediate payment provision, given the 14 allegations pleaded in the [C]omplaint.” IV Sols., 800 F. App’x at 501. Applying the 15 immediate payment provision, the Ninth Circuit found that “Empire’s obligation to 16 pay was ascertainable by October 4, 2012, at the latest, because the alleged agreement 17 provided that Empire would pay ‘IVS’s billed charges.’ So Empire was required to 18 immediately pay at that time under section 1657.” Id. Further, “Empire’s failure to 19 pay on that date was a breach, and the statute of limitations started running.” Id. 20 Thus, the Ninth Circuit held that IVS’s claim, as pleaded, fell outside of the four-year 21 statute of limitations. Id. In so holding, the Ninth Circuit presumably relied on 22 paragraph 27(c) of the Complaint, which was the only mention of October 4, 2012, 23 anywhere in that pleading. (See Compl. ¶ 27(c) (“In [sic] October 4, 2012, Lynn 24 Hounihan, an employee of Defendant, informed Sheina Saeger, an employee of 25 Plaintiff, that she was working on getting the 2012 claims processed that were denied 26 in error.”).) 27 Notably, that same allegation regarding October 4, 2012, reappears verbatim in 28 paragraph 26(c) of IVS’s FAC. (Compare FAC ¶ 26(c) with Compl. ¶ 27(c).) Thus, 1 Empire contends that the Ninth Circuit’s analysis applies again here with equal force, 2 and that IVS’s FAC should be dismissed for the same reasons the Ninth Circuit 3 affirmed dismissal of IVS’s Complaint. (See Mot. 7–10 (“Indeed, all this has already 4 been settled by the Ninth Circuit.”). The Court agrees. Having amended its 5 Complaint, IVS maintains that Empire agreed to pay 100% of IVS’s billed charges. 6 (FAC ¶¶ 13(a), 15, 18.) And the necessary inference to be drawn from the 7 communication alleged in paragraph 26(c) of the FAC is that Empire must have 8 “denied” IVS’s claims for payment of billed charges sometime prior to October 4, 9 2012. (See FAC ¶ 26(c).) Therefore, the Court agrees with that which the Ninth 10 Circuit has already concluded—IVS’s breach of contract claim, as alleged, accrued no 11 later than October 4, 2012. IV Sols., 800 F. App’x at 501. 12 IVS attempts to rely on the principle “that where no time is specified for 13 performance under a contract, a claim for breach of contract does not accrue until 14 demand for performance is made, and is refused.” (Opp’n 7 (citing Leonard v. Rose, 15 65 Cal.2d 589, 592 (1967)).) Specifically, IVS attempts to demonstrate that its breach 16 of contract claim is timely by clarifying in its FAC when Empire refused to pay IVS’s 17 billed charges. IVS alleges that based on industry custom, Empire was not required to 18 pay for billed charges until after a claim had been submitted, reviewed, verified, and 19 reprocessed as necessary. (FAC ¶ 21–23.) According to IVS, only after such 20 processing and reprocessing could Empire have refused to pay IVS’s billed charges, 21 thereby triggering accrual of IVS’s claim. (See Opp’n 7.) And in its FAC, IVS 22 alleges that Empire “did not complete the reprocessing of [IVS]’s claims until July 29, 23 2013 at the earliest, when [Empire] informed [IVS] that it had ‘repriced’ [IVS]’s 24 claims and would be paying additional amounts to [IVS] based on such repricing.” 25 (FAC ¶ 24.) Thus, IVS contends that “the payments due [IVS] for the services 26 rendered were not reasonably due until July 29, 2013, at the earliest.” (FAC ¶ 24.) 27 28 1 Problematically, IVS’s new allegations contradict statements made in its 2 Complaint, some of which remain in the FAC.3 Most significantly, IVS alleges that 3 on October 4, 2012, Empire informed IVS that it was “working on getting the 2012 4 claims processed that were denied in error.” (Compl. ¶ 27(c); FAC ¶ 26(c) (emphasis 5 added).) This allegation necessarily implies that IVS’s claims had been denied—i.e., 6 Empire had completed the initial processing and reprocessing of IVS’s claims—at 7 some point before October 4, 2012. Thus, whatever processing and reprocessing may 8 have occurred before that denial is beside the point, and IVS’s breach of contract 9 cause of action remains largely unaffected by its new allegations regarding the general 10 practice of healthcare billing. Further, the Court need not accept IVS’s new allegation 11 that Empire was not obligated to pay IVS’s billed charges “until July 29, 2013, at the 12 earliest,” because this allegation contradicts IVS’s claims that Empire had denied the 13 relevant insurance claims prior to October 4, 2012. See Airs Aromatics, 744 F.3d 14 at 600; Reddy, 912 F.2d at 296–97; Azadpour, 2007 WL 2141079, at *2 n.2. 15 IVS insists that paragraph 26(c) of the FAC, “read in its entirety, establishes 16 that Empire had not yet completed its processing of the claims and that the previous 17 denials of the 2012 claims had been in error.” (Opp’n 14.) However, IVS’s urged 18 interpretation ultimately neglects to address the unambiguous assertion that the claims 19 had, at one point, been “denied.” (FAC ¶ 26(c).) Although IVS was free to request 20 reconsideration of that denial—which it appears is what occurred here—the law is 21 clear that such reconsideration after a denial does not toll the statute of limitations. 22 Singh v. Allstate Ins. Co., 63 Cal. App. 4th 135, 143–44 (1998). 23 24 3 The Court notes that certain details from the Complaint are strikingly absent from the FAC. For 25 example, the Complaint appears to indicate that IVS contacted Empire in April 2012 to request full payment on billed charges that Empire had only partially paid, but the FAC replaces that explanation 26 with new, vague language. (Compare Compl. ¶ 26 (alleging that IVS “notified Defendant of the shortfall of Defendant’s payments and requested that Defendant remedy that shortfall”) with FAC 27 ¶ 25 (alleging that IVS and Empire “engaged in the processing and reprocessing of claims as 28 described above”).) Indeed, in certain respects, IVS’s FAC introduces more ambiguity than it resolves. 1 Thus, as the Ninth Circuit similarly concluded based on identical language, the 2 Court finds that IVS’s claim for breach of contract began accruing when Empire 3 denied its request for payment of 100% of its billed charges, which allegedly occurred 4 no later than October 4, 2012. See IV Sols., 800 F. App’x at 501 (applying the 5 immediate payment provision under section 1657 to find that IVS’s breach of contract 6 cause of action, as alleged in the Complaint, had accrued “by October 4, 2012, at the 7 latest”); see also Leonard, 65 Cal.2d at 592 (explaining how, in a case such as this, a 8 cause of action accrues upon denial of payment). Whereas IVS filed its claim for 9 breach of contract on June 23, 2017, its claim is barred by the four-year statute of 10 limitations. Furthermore, IVS concedes—and the Ninth Circuit has indicated—that 11 IVS’s claim cannot be saved by the doctrines of equitable tolling or equitable 12 estoppel. (See Opp’n 15); IV Sols., 800 F. App’x 501–02. Accordingly, the Court 13 GRANTS Empire’s Motion and DISMISSES IVS’s First Amended Complaint. See 14 Cervantes, 656 F.3d at 1045 (affirming dismissal where “[t]he running of the 15 limitations periods on both claims [wa]s apparent on the face of the complaint”). 16 Additionally, the Court finds that it would be futile to grant IVS leave to amend 17 its First Amended Complaint because the only way IVS could show its claim is timely 18 would be to contradict statements and allegations made in its prior pleadings. See Airs 19 Aromatics, 744 F.3d at 600; Reddy, 912 F.2d at 296–97. For instance, both the 20 Complaint and FAC explain that IVS’s payment claims had been denied by Empire 21 prior to October 4, 2012. (Compl. ¶ 27(c); FAC ¶ 26(c).) Further, IVS has expressly 22 and impliedly conceded that there is no basis for which the statute of limitations 23 should be equitably tolled. (Opp’n 15; see generally FAC.) Moreover, IVS has now 24 had a chance to amend its allegations, yet its claim remains time-barred on its face. 25 Thus, IVS’s request for leave to amend is DENIED. 26 // 27 // 28 // 1 VI. CONCLUSION 2 In summary, the Court GRANTS Empire’s Motion and DISMISSES IVS’s 3 | First Amended Complaint WITHOUT LEAVE TO AMEND. The Clerk of Court shall close the case. 5 6 IT IS SO ORDERED. 7 8 September 29, 2020 9 “A ff

11 OTIS D. WRIGHT, II b UNITED STATES DISTRICT JUDGE

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