1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

6

7 STANFORD HEALTH CARE, Case No. 21-cv-00550-PJH 8 Plaintiff,

9 v. ORDER GRANTING MOTION TO

DISMISS AND GRANTING IN PART

10 USABLE MUTUAL INSURANCE AND DENYING IN PART MOTION TO

COMPANY, STRIKE

11 Defendant. Re: Dkt. Nos. 24, 28 12

13 14 Defendant USAble Mutual Insurance Company’s (“defendant”) motion to dismiss 15 (Dkt. 24) plaintiff Stanford Health Care’s (“plaintiff”) first amended complaint (“FAC”) and 16 motion to strike (Dkt. 28) came on for hearing before this court on July 1, 2021. Plaintiff 17 appeared through its counsel, Jennifer Jiao. Defendant appeared through its counsel, 18 Jason Wu and Michael Naranjo. Having read the parties’ papers and carefully 19 considered their arguments and the relevant legal authority, and good cause appearing, 20 the court hereby GRANTS the motion to dismiss WITH PREJUDICE and GRANTS IN 21 and PART DENIES IN PART the motion to strike. 22 BACKGROUND 23 Plaintiff is a non-profit hospital that principally operates in Northern California. Dkt. 24 23 (FAC) ¶ 1. Title 42 U.S.C. § 1395dd requires plaintiff to treat any person brought to its 25 hospital with emergency medical conditions. Id. ¶ 9. Plaintiff must do so until the patient 26 is stable for transfer or discharge. Id. Defendant is an insurance company with its 27 principal place of business in Arkansas. Id. ¶ 2. Defendant “arranges for the provision of 1 for those services.” Id. 2 On January 22, 2021, plaintiff filed the instant lawsuit against defendant. Dkt. 1. 3 In its operative FAC, plaintiff alleges a claim for breach of implied in fact contract and, 4 alternatively, a claim for quantum meruit. FAC ¶¶ 15-42. Plaintiff seeks to recover over 5 $100,000 for medical services that it provided to an unidentified patient, T.H., in 6 November 2018. Id. 7 On May 4, 2021, defendant filed the instant Rule 12(b)(6) motion to dismiss. Dkt. 8 24. In it, defendant asserts that the two-year statute of limitations bars plaintiff’s claims. 9 Id. at 10-11. Alternatively, defendant argues that plaintiff fails to allege sufficient facts to 10 state a claim. Id. at 11-15. 11 In support of its opposition to that motion, plaintiff proffers two declarations. The 12 first declaration comes from plaintiff’s outside counsel, Jennifer Jiao (“Jiao”). Dkt. 26-1. 13 As part of her declaration, Jiao includes an excerpt of certain portions of defendant’s 14 website (the “website exhibit”). Dkt. 26-3. The second declaration comes from plaintiff’s 15 Director of Patient Financial Services, Antonio Fonseca (“Fonseca”). Dkt. 26-2. The 16 court will collectively refer to the Jiao declaration, the Fonseca declaration, and the 17 website exhibit as the “challenged materials.” 18 On May 25, 2021, defendant filed the subject motion to strike. Dkt. 28. In it, 19 defendant asserts that the court should not consider the challenged materials when 20 deciding the motion to dismiss. Id. 21 As detailed below, the court concludes that the statute of limitations bars plaintiff’s 22 claims. Given that, the court need not decide whether plaintiff alleged sufficient facts to 23 state a claim. The court will detail only the factual allegations, communications, and 24 challenged materials that are necessary to decide the statute of limitations defense. 25 I. T.H.’s Hospital Stay, Treatment, and Insurance 26 On November 5, 2018, an ambulance brought T.H. to plaintiff’s emergency 27 department. FAC ¶ 10. Plaintiff treated T.H. for numerous emergency medical 1 plaintiff admitted T.H. to its hospital. Id. On November 27, 2018, plaintiff discharged T.H. 2 Id. ¶ 24. Between November 5, 2018 and November 27, 2018, plaintiff provided T.H. 3 with “medically necessary emergency and post-stabilization services.” Id. ¶ 10. Plaintiff 4 alleges that, as of November 2018, T.H. was an enrolled member of a health plan 5 sponsored by defendant. Id. ¶ 11. 6 II. The Relevant Communications 7 On November 23, 2018, T.H. provided plaintiff with an insurance card issued by 8 defendant. Id. ¶ 21. That day, plaintiff called third-party Anthem Blue Cross (“Anthem”) 9 to verify T.H.’s eligibility under defendant’s plan. Id. An Anthem representative informed 10 plaintiff that T.H. had mental health coverage with defendant “that is administered by New 11 Directions Behavior Health.” Id. For brevity, the court will refer to the latter entity as 12 “New Directions.” 13 On November 26, 2018, plaintiff called defendant. Id. ¶ 22. In relevant part, a 14 defendant representative “confirmed” that T.H. had active coverage through defendant 15 and “advised” plaintiff that T.H.’s “mental health benefits go through authorization by 16 [New Directions] but that claims are processed by [Anthem].” Id. 17 On November 27, 2018, the same day as plaintiff’s discharge, a New Directions 18 representative contacted plaintiff. Id. ¶ 24. The representative “advised” plaintiff that it 19 “will receive a denial letter for [T.H.] due to late admission notification but that [plaintiff] 20 can immediately appeal the denial and the appeal will be processed by [defendant].” Id. 21 That same day, New Directions sent plaintiff a letter (the “November 27, 2018 22 letter”). Id. In its letter, New Directions states in part “that it is denying benefits for 23 [T.H.’s] inpatient treatment at [plaintiff’s hospital] for lack of authorization prior to 24 treatment.” Id. Defendant attaches the November 27, 2018 letter to its opening brief. 25 Dkt. 24-2 at 7-10. Plaintiff does not disagree that the FAC incorporates that letter by 26 reference. The court will detail and consider the letter’s contents its analysis below. 27 Later that same day, plaintiff called defendant. FAC ¶ 25. During that call, plaintiff 1 plaintiff that “an appeal has to be initiated through [Anthem] and it will be forwarded to 2 [defendant].” Id. 3 On December 22, 2018, plaintiff “submitted its claim for [T.H.] to [Anthem] for 4 processing.” Id. ¶ 26. Plaintiff alleges that a contract between it and Anthem required 5 such submission for plaintiff’s claim to “be appealed.” Id. While plaintiff alleges that 6 defendant was subject to that contract by virtue of defendant’s status as a participant in 7 Anthem’s so-called “Blue Card Program,” plaintiff does not allege that defendant was a 8 party to the Anthem contract. Id. ¶¶ 16-19. 9 On January 22, 2019, Anthem issued a Remittance Advice (“RA”) notice. Id. ¶ 29. 10 The RA notice detailed plaintiff’s “entire bill for [T.H.] under Covered Charges” but 11 “documented that [T.H.’s] primary plan (i.e., [defendant]) . . . allowed $0.00 12 reimbursement.” Id. On February 28, 2019, plaintiff “initiated an appeal, requesting 13 payment for the medically necessary services rendered to [T.H.].” Id. ¶ 30. 14 On March 21, 2019, defendant issued a letter denying the February 28, 2019 15 appeal. Id. Almost two years later, this action followed. 16 DISCUSSION 17 III. Legal Standard 18 A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims 19 alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003). “A 20 claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the 21 applicable statute of limitations only when ‘the running of the statute is apparent on the 22 face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 23 F.3d 954, 969 (9th Cir. 2010). 24 As a general matter, the court should limit its Rule 12(b)(6) analysis to the 25 contents of the complaint, although it may consider documents “whose contents are 26 alleged in a complaint and whose authenticity no party questions, but which are not 27 physically attached to the plaintiff's pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 1 consider a document on which the complaint relies if the document is central to the 2 plaintiff's claim, and no party questions the authenticity of the document”). The court may 3 also consider matters that are properly the subject of judicial notice, Lee v. City of L.A., 4 250 F.3d 668, 688–89 (9th Cir. 2001), exhibits attached to the complaint, Hal Roach 5 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), and 6 documents referenced extensively in the complaint and documents that form the basis of 7 the plaintiff's claims, United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). 8 IV. Analysis 9 California law imposes a two-year statute of limitations on “any action upon a 10 contract, obligation or liability not founded upon an instrument of writing.” Cal. Code Civ. 11 Pro. § 339. This rule applies both to claims for breach of implied in fact contract, Barton 12 v. New United Motor Mfg., Inc., 43 Cal. App. 4th 1200, 1206 (1996), and quantum meruit, 13 Vishva Dev, M.D., Inc. v. Blue Shield of California Life & Health Ins. Co., 2 Cal. App. 5th 14 1218, 1223 (2016) (“Vishva Dev”). “Generally, the statute of limitations commences 15 when a party knows or should know the facts essential to the claim.” Id. 16 In its opposition, plaintiff does not disagree about the applicability of these rules to 17 its claims. Instead, the parties contest when the statute of limitations commenced. 18 Defendant asserts that that period began on November 27, 2018, when New Directions 19 sent its letter. Dkt. 24 at 10 n.1. Plaintiff, on the other hand, asserts that that period did 20 not begin until January 22, 2019, when Anthem sent its RA notice. Dkt. 26 at 10. 21 The critical question, then, is whether plaintiff “knew or should have known” the 22 facts essential to its claims following its receipt of the November 27, 2018 letter. 23 Although the parties disagree about Vishva Dev’s meaning, they agree that that decision 24 controls this question. Compare Dkt. 24 at 11 with Dkt. 26 at 9-10. 25 In Vishva Dev, the Court of Appeal reviewed the trial court’s determination that 26 California Code of Civil Procedure § 339’s two-year statute of limitations barred a 27 healthcare provider’s quantum meruit claim against two insurers for their failure to pay for 1 at 1220. The court affirmed that determination. Id. at 1226. It found that certain written 2 “Explanation of Benefit” (“EOB”) notices sent by the insurers to the providers more than 3 two years before the provider filed suit “unequivocally stated” that the insurers “would not 4 pay [the provider’s] bills” or, with respect to one patient, “only a portion of [the provider’s] 5 bills.” Id. at 1223-24. Based on those statements, the court held that the subject EOB 6 notices “all put [the provider] on notice that its claims for payments were being denied in 7 part or in whole, which was the essential fact of [the provider’s] quantum meruit claims.” 8 Id. at 1224. 9 This court construes Vishva Dev as standing for the proposition that, under 10 California law, a provider should know the facts essential to any claim against an insurer 11 for its provision of emergency medical services when an insurer issues a writing that 12 unequivocally states its denial of the provider’s request that the insurer pay for such 13 services. With that point of law clarified, this court finds that the November 27, 2018 14 letter provided such unequivocal denial. Three aspects of that letter support this finding. 15 First, at the letter’s first paragraph, New Directions states that it “performs 16 managed behavioral health care services on behalf of [defendant].” Dkt. 24-2 at 7 17 (emphasis added). This statement indicates that New Directions acted as defendant’s 18 agent concerning the coverage requested and represented such status to plaintiff during 19 their communications. 20 Second, at its second paragraph, the letter states that it “confirms that New 21 Directions is denying benefits for Inpatient treatment provided on [redacted dates] at 22 Stanford University Medical Center.” Id. (emphasis added). The letter then states that 23 “[o]ur information indicates: Pre-certification for the care requested was not obtained as 24 required in the member’s benefit plan.” Id. At its third paragraph, the letter further 25 characterizes its statements as a “denial.” Id. (“You have a right to request a copy of 26 your benefits . . . and copies of all documents relevant to the denial.”) (emphasis added). 27 These statements show that defendant, acting through New Directions, refused to 1 Third, when outlining the appeal process at its third paragraph, the letter 2 characterizes itself as a “decision.” Id. at 7 ((“If you . . . choose[] to appeal this decision, 3 the appeal may . . .”) (emphasis added). The letter repeats this characterization at its 4 final paragraph. Id. at 8 (“If you would like to speak to someone about this decision, you 5 may . . .”) (emphasis added). These characterizations show that the letter’s denial 6 served as a final determination by defendant concerning the coverage requested. Thus, 7 for the above three reasons, the court finds that the November 27, 2018 letter served as 8 an “unequivocal denial” by defendant of plaintiff’s request to pay for the treatment 9 rendered by plaintiff to T.H. Because plaintiff filed suit on January 22, 2021, the court 10 concludes that the two-year statute of limitations bars its claims. 11 In its opposition, plaintiff challenges this conclusion on three grounds. First, 12 plaintiff asserts that the November 27, 2018 letter was a “denial of authorization,” not a 13 “denial of payment.” Dkt. 26 at 9. Relying on the Fonseca declaration, plaintiff suggests 14 that, as a matter of industry practice, defendant could deny payment only if it issues one 15 of three healthcare UB-04 forms—namely, an EOB, an RA, or an “explanation of 16 coverage” (“EOC”). Dkt. 26 at 10. Second, plaintiff asserts that defendant could not 17 have denied payment on November 27, 2018 because, as of that date, plaintiff “had not 18 even billed [defendant] for services rendered to [T.H.].” Id. Thus, plaintiff rhetorically 19 says, “how can payment be denied if there is no bill submitted?” Id. Third, plaintiff asks 20 the court to “estop” any statute of limitations defense because defendant required plaintiff 21 to “undertake methods of resolution prior to filing legal action.” Id. at 10. 22 None of these counterarguments alters the court’s conclusion. Plaintiff’s first 23 counterargument rests on the merit of the distinction between a denial of “authorization” 24 and a denial of “benefits.” Other allegations undermine that distinction’s merit. At 25 paragraph 24, plaintiff refers to the November 27, 2018 letter as “denying benefits for 26 [T.H.’s] inpatient treatment . . . for lack of authorization prior to treatment.” Id. ¶ 24 27 (emphasis added). At paragraph 25, plaintiff alleges that, immediately following its 1 T.H.’s claim.” Id. ¶ 25 (emphasis added). By plaintiff’s own allegation, then, the 2 November 27, 2018 letter denied “benefits” and denied a “claim.” Critically, neither 3 allegation says anything about denying “authorization.” Instead, as shown by the bolded 4 language in paragraph 24, it was the absence of pre-treatment authorization that 5 compelled the November 27, 2018 letter’s denial of benefits. 6 At oral argument, plaintiff failed to explain how or why T.H.’s insurance “benefits” 7 are any different than “payment.” That explanation is particularly important when, as 8 here, a discharged enrollee has already received the treatment at issue. Plaintiff also 9 failed to explain how a tendered “claim” is different than a request for “payment.” In fact, 10 at paragraph 22 (the precise paragraph that plaintiff relies on to support its proffered 11 distinction), plaintiff alleges that T.H.’s “mental health benefits go through authorization by 12 [New Directions] but claims are processed by [Anthem].” FAC ¶ 22 (emphasis added). 13 Interestingly, when citing that same paragraph in its opposition, plaintiff replaces the word 14 “claim” with “payment and processing.” Dkt. 26 at 9 (“In fact, a [defendant] representative 15 advised that [New Directions] only had the ability to authorize services but that 16 processing and payment goes through Anthem.”) (emphasis added). Thus, after 17 peeling back the various labels used in the FAC and opposition, plaintiff’s own allegations 18 (and logic) show that the November 27, 2018 letter denied payment. 19 Plaintiff’s reliance on the Fonseca declaration does not salvage the merit of its first 20 counterargument. For starters, the Fonseca declaration is not properly before this court. 21 Fonseca signed that declaration on May 17, 2021. Dkt. 26-2. Plaintiff filed its FAC on 22 April 20, 2021. Dkt. 23. By definition, then, the FAC could not have incorporated 23 Fonseca’s declaration by reference. It did not exist.1 24

25 1 On that basis, the court GRANTS defendant’s motion to strike the Fonseca declaration. Dkt. 28. Given its conclusion on the statute of limitation defense, the court does not 26 reach the merits of plaintiff’s claims. In its opposition, plaintiff offers the website exhibit (Dkt. 26-3) only to support its claims’ merits, not to refute the statute of limitations 27 argument. Thus, the court need not decide whether the incorporation by reference 1 But even if the court were to consider that declaration, Fonseca’s discussion of the 2 UB-04 forms generally used to communicate coverage decisions does not establish that 3 an insurer may deny coverage only through such forms. Dkt. 26-2 ¶ 3. To the extent 4 plaintiff argues that Vishva Dev requires a UB-04 form to communicate a denial, Dkt. 26 5 at 10, the court rejects that interpretation. The court in Vishva Dev did not articulate any 6 rule about the type of document that an insurer must use to formalize its coverage 7 decision. It simply found that, on the facts before it, the EOB notices served as 8 sufficiently unequivocal written denials of payment. 9 That leaves only the Fonseca declaration’s discussion of the healthcare industry’s 10 “retro-authorization” process. Dkt. 26-2 ¶ 6. Again, even if the court were to consider 11 that discussion, plaintiff does not explain how the existence of such process (or the 12 possibility that defendant would retroactively authorize coverage) changes the November 13 27, 2018 letter’s clear statements denying coverage for the services at issue. 14 With respect to plaintiff’s second counterargument, defendant aptly answers 15 plaintiff’s rhetorical question: defendant could deny the benefits requested without having 16 reviewed the bill because plaintiff failed to obtain pre-treatment authorization. Dkt. 27 at 17 8. The November 27, 2018 letter validates that answer. Dkt. 24-2 at 7 (“This letter 18 confirms that New Directions is denying benefits for Inpatient treatment provided on . . . 19 Our information indicates: Pre-certification for the care request was not obtained as 20 required in the member’s benefit plan.”). When pressed at oral argument, plaintiff itself 21 ceded that defendant is not required to wait until plaintiff submits a claim for defendant to 22 deny coverage. 23 Plaintiff’s third counterargument similarly lacks merit. Critically, plaintiff does not 24 allege that defendant required plaintiff to appeal the November 27, 2018 letter’s decision. 25 The November 27, 2018 letter itself also does not include any such requirement. Instead, 26 that letter indicates only that plaintiff may appeal its decision. Dkt. 24-2 at 7 (“If you, a 27 representative, or the attending physician chooses to appeal this decision, the appeal 1 provision of a voluntary appeals process as part of a denial “does not change the finality” 2 of that denial. 2 Cal. App. 5th at 1225. Thus, plaintiff may not rely on any appeal 3 following the November 27, 2018 letter as a basis to toll the statute of limitations. Id. 4 (rejecting the provider’s theory of tolling pending an appeal on grounds that “any party 5 engaging in an insurance company's optional appeal process could continuously toll the 6 statute of limitations, thereby rendering it a nullity.”). 7 * * * 8 In short, the court finds that the November 27, 2018 letter unequivocally denied 9 plaintiff’s request that defendant pay for the services that plaintiff rendered to T.H during 10 the period in question. That letter triggered the statute of limitations on plaintiff’s claims, 11 thereby requiring plaintiff to file suit by November 27, 2020. Plaintiff filed suit on January 12 22, 2021. Plaintiff’s claims are therefore barred by the statute of limitations. 13 CONCLUSION 14 For the above reasons, the court GRANTS defendant’s motion to dismiss. 15 Because plaintiff does not explain how it can alter the viability of the statute of limitations 16 defense by amendment, the court will dismiss its claims WITH PREJUDICE. The court 17 also GRANTS defendant’s motion to strike with respect to the Fonseca declaration (Dkt. 18 26-2) and DENIES that motion as moot with respect to the remaining materials. 19 IT IS SO ORDERED. 20 Dated: July 13, 2021 21 /s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

22 United States District Judge 23 24 25 26 27