1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 SALOOJAS INC., Case No. 22-cv-03267-MMC

8 Plaintiff,

ORDER GRANTING DEFENDANT’S

9 v. MOTION TO DISMISS; AFFORDING

PLAINTIFF LEAVE TO AMEND;

10 BLUE SHIELD OF CALIFORNIA LIFE DENYING WITHOUT PREJUDICE

AND HEALTH INSURANCE DEFENDANT’S MOTION TO STRIKE

11 COMPANY,

12 Defendant.

13 Before the Court is defendant Blue Shield of California Life and Health Insurance 14 Company’s (“Blue Shield”) Motion, filed August 5, 2022, “to Dismiss Plaintiff’s Original 15 Class Action Complaint,” whereby defendant seeks, inter alia, an order dismissing each 16 of plaintiff’s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 17 Plaintiff Saloojas Inc. (“Saloojas”) has filed opposition, to which Blue Shield has replied. 18 The Court having read and considered the parties’ respective written submissions, the 19 motion, as set forth below, will be granted.1 20 By its complaint, Saloojas brings six claims for relief, each identified by a Roman 21 numeral. The Court addresses the claims in the sequence alleged. 22 Motion to Dismiss 23 (a) Claim I, titled “Violation of the FFCRA and the CARES Act,” is subject to dismissal, 24 for the reason that, as the overwhelming majority of district courts to have addressed the 25 issue have found, neither § 6001 of the Families First Coronavirus Response Act 26 27 1 (“FFCRA”), Pub. L. 116-127, 134 Stat. 178 (2020), nor § 3202 of the Coronavirus Aid, 2 Relief, and Economic Security Act (“CARES Act”), Pub. L. 116-136, 134 Stat. 281 (2020), 3 creates a private right of action. See, e.g., Murphy Med. Assocs., LLC v. Cigna Health & 4 Life Ins. Co., 2022 WL 743088, at *6 (D. Conn. Mar. 11, 2022) (concluding, given 5 absence of “clear indication of congressional intent, . . . neither § 6001 of the FFCRA nor 6 § 3202 of the CARES Act contains a private right of action.”) (internal quotation and 7 citation omitted); see also, e.g., Saloojas, Inc. v. Aetna Health of California, Inc., 2022 WL 8 2267786, at *5 (N.D. Cal. June 23, 2022) (holding “[t]he CARES Act does not provide an 9 implied private right of action for Plaintiff to seek reimbursement of its posted cash 10 price”); Betancourt v. Total Prop. Mgmt., 2022 WL 2359286, at *3 (E.D. Cal. June 30, 11 2022) (finding “the CARES Act provides no private right of action”); Horvath v. JP Morgan 12 Chase & Company, 2022 WL 80474, at *5 (S.D. Cal. Jan. 7, 2022) (finding “[p]laintiff 13 does not have a cause of action under the CARES Act.”); Am. Video Duplicating, Inc. v. 14 City Nat’l Bank, 2020 WL 6882735, at *4 (C.D. Cal. Nov. 20, 2020) (noting “every court2 15 to address whether the CARES Act created an implied private right of action has held 16 that it does not.”). 17 (b) Claim II, titled “Violation of Section 501(a)(1)(B) of ERISA,” is subject to dismissal 18 for the reason that Saloojas lacks standing to state a claim under ERISA. See DB 19 Healthcare, LLC v. Blue Cross Blue Shield of Arizona, 852 F.3d 868, 878 (9th Cir. 2017) 20 (holding healthcare providers “are not ‘beneficiaries’ . . . authorized to bring their claims in 21 federal court under ERISA.”). Although “[a] health care provider may have derivative 22 standing to pursue ERISA benefits if he or she was assigned the right to reimbursement 23 by an ERISA plan beneficiary,” see Almont Ambulatory Surgery Ctr., LLC v. UnitedHealth 24 Grp., Inc., 99 F. Supp. 3d 1110, 1128 (C.D. Cal. 2015), Saloojas’s conclusory allegations 25

26 2 Subsequent to American Video, a single decision finding an implied right of action was filed. See Diagnostic Affiliates of Ne. Nous., LLC v. United Healthcare Servs. 27 Inc., 2022 WL 214101 (S.D. Tex. Jan. 18, 2022). The Court has considered said 1 in that regard (see Compl. ¶65 (alleging “[m]any members of [Blue Shield] 2 plans…executed assignment of benefits documents”)) are unavailing, see Ashcroft v. 3 Iqbal, 556 U.S. 662, 678 (2009) (noting courts "are not bound to accept as true a legal 4 conclusion couched as a factual allegation") (internal quotation and citation omitted). 5 Moreover, although “the terms ‘assign’ or ‘assignment’” need not be used, see DB 6 Healthcare, 852 F.3d at 876, the document Saloojas submits with its opposition (see 7 Opp’n at 16:26-17:10 & Exhibit 4)3 does not suffice to constitute an assignment, see DB 8 Healthcare, 852 F.3d at 876 (requiring “words that fairly indicate an intention to make the 9 assignee owner of a claim”) (internal quotation and citation omitted); see also Advanced 10 Women’s Health Ctr., Inc. v. Anthem Blue Cross Life & Health Ins. Co., 2014 WL 11 3689284, at *4 (E.D. Cal. July 23, 2014), aff’d sub nom. DB Healthcare, LLC v. Blue 12 Cross Blue Shield of Ariz., Inc., 852 F.3d 868 (9th Cir. 2017) (holding “assignment must 13 be express and knowing”) (internal quotation and citation omitted). 14 (c) Claim III, titled “Violation of 18 U.S.C. Section 1962(c) (RICO),” is subject to 15 dismissal for the reason that Saloojas fails to allege facts sufficient to support a finding 16 that Blue Shield engaged in racketeering activity. To the extent the claim is predicated 17 on mail and/or wire fraud allegations, Saloojas fails to “state with particularity the 18 circumstances constituting fraud or mistake[,]” see Fed. R. Civ. P. 9(b); see also Swartz 19 v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (holding Rule 9(b) “requires . . . an 20 account of the time, place, and specific content of the false representations as well as the 21 identities of the parties to the misrepresentations”), and to the extent the claim is 22 predicated on embezzlement, Saloojas fails to plead facts showing how a failure to pay a 23 plan benefit can be deemed an embezzlement, see United States v. Andreen, 628 F.2d 24 1236, 1241 (9th Cir. 1980) (noting “the essence of the crime is theft”). 25

26 3 The Court has considered the above-cited exhibit solely as relevant to potential amendment. See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197-201 n.1 (9th Cir. 27 1998) (noting court, in determining motion under Rule 12(b)(6), “may not look beyond the 1 (d) Claim IV, titled “Promissory Estoppel (Non-ERISA),” is subject to dismissal for the 2 || reason that Saloojas fails to plead facts identifying any promise by Blue Shield, let alone 3 a “clear and unambiguous” promise, see Rosal v. First Fed. Bank of California, 671 F. 4 |} Supp. 2d 1111, 1130 (N.D. Cal. 2009), to reimburse Saloojas for the full amount of Covid- 5 19 testing prices, and Saloojas cites no authority supporting its contention that past 6 || payment can be construed as a promise of future payment. 7 (e) Claim V, titled “Injunctive Relief (Non-ERISA),” is, as pleaded, derivative of Claim | 8 through Claim IV and, consequently, is, for the reasons stated above, subject to 9 dismissal. Moreover, injunctive relief is not an independent cause of action, but, rather, a 10 || remedy. See Ajetunmobi v. Clarion Mortg. Cap., Inc., 595 F. App'x 680, 684 (9th Cir. 11 2014) (citing Roberts v. L.A. Cnty. Bar Ass’n, 129 Cal.Rptr.2d, 546, 555 (2003)). 12 (f) Claim VI, titled “Unlawful, Unfair and Fraudulent Business Acts and Practices” and 5 13 brought under § 17200 of the California Business & Professions Code, is, as pleaded, 14 derivative of Claim | through Claim IV and, consequently, is, for the reasons stated 8 15 above, subject to dismissal. é 16 || Leave to Amend G 17 The Court will afford Saloojas leave to amend Claims III, IV, and VI, to cure, if it 5 18 can do so, the deficiencies identified above. 19 CONCLUSION 20 For the reasons stated, Blue Shield’s motion to dismiss is hereby GRANTED, with 21 leave to amend Claims III, IV, and VI. Saloojas’s amended complaint, if any, shall be 22 filed no later than October 25, 2022. Saloojas may not, however, add any new claims or 23 || defendants without obtaining leave of court. 24 25 IT IS SO ORDERED. 26 2 27 || Dated: 10/3/2022 MY.

MAXINE M. CHESNEY

28 United States District Judge