1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 CHARLES JACKSON, SR., Case No. 22-cv-03142-JSC

7 Plaintiff,

ORDER RE: MOTION FOR

8 v. SUMMARY JUDGMENT

9 THE GUARDIAN LIFE INSURANCE Re: Dkt. No. 27 COMPANY OF AMERICA, et al., 10 Defendants.

11 12 Charles Jackson, Sr. brings this lawsuit against The Guardian Life Insurance Company of 13 America and his employer, Pacific States Petroleum under the Employee Retirement Income 14 Security Act (“ERISA”). 29 U.S.C. §§ 1132(a)(1)(B), (a)(3)(B). Defendants move for summary 15 judgment based on Plaintiff’s failure—in their view—to exhaust administrative remedies under 16 Pacific States’ employee benefit plan prior to filing suit. (Dkt. No. 27.)1 17 After carefully reviewing the parties’ briefs and conducting oral arguments on April 13, 18 2023, Defendants’ motion is DENIED. If a plan “clearly and unambiguously” requires pre-suit 19 exhaustion, a plaintiff must satisfy the plan’s requirements prior to filing suit without exception. 20 Wit v. United Behavioral Health, 58 F.4th 1080, 1098 (9th Cir. 2023). But “a claimant need not 21 exhaust when the plan does not require it.” Spinedex Physical Therapy USA Inc. v. United 22 Healthcare of Arizona, Inc., 770 F.3d 1282, 1299 (9th Cir. 2014). Here, the Pacific States plan 23 does not require exhaustion of administrative remedies. (Dkt. No. 27-1 at 522-524); see also 24 Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 628 (9th Cir. 2008) (courts 25 interpret ERISA plans “as would a person of average intelligence and experience”). So, Plaintiff 26 had no obligation to do so. Spinedex, 770 F.3d at 1299. 27 1 DISCUSSION 2 Plaintiff began working as a tanker truck driver for Pacific States Petroleum in 2012. 3 Guardian administers Pacific States’ employee benefit plan. In January 2020, Plaintiff submitted a 4 || form electing coverage under Pacific States’ long-term disability plan. (Dkt. No. 29-5 at 4.) 5 Around the same time, he began experiencing elbow and shoulder pain. (Dkt. No. 29-497.) He 6 || transitioned to modified office duties to avoid further injury. (/d.) A few months later, Plaintiff 7 submitted a second coverage form, electing both short and long-term disability coverage. (Dkt. 8 No. 29-6 at 5.) Pacific States then sent Plaintiff the following notice: 9 ns i. a = iif ay 11 To: Charles Jackson 12 From: Kelli Collins 13 14 Re: Benefits Deductions

15 Based on the benefits you have chosen for you and your family, starting May 20", 2020 your benefits premium will be the following:

Q 16

Z 18 Guardian Dental $18.49 19 fe 20 Disabili 1 Disabili | Supplemental Life [Yes | BO] S52 BO | [FSAElection [$00 DY. | L a to 23 A If you have any questions, please contact Kelli Collins or Garrett Rizzonelli. 25 Kelli Collins 26 Director of Human Resources 800-679-1700 28

1 (Dkt. No. 29-7 at 2.) Pacific States sent Plaintiff identical notices—again stating Plaintiff had 2 Long-Term Disability Coverage and $34.08 in premiums would be deducted per paycheck—in 3 both December 2021 and October 2022. (Id. at 3, 5.) Shortly after the first notice from Pacific 4 States, Plaintiff took paid short-term disability leave. (Dkt. No. 29 ¶ 12.) Once cleared to return 5 to work, he did so. (Id. ¶ 13.) But, in January 2021, Plaintiff obtained elbow surgery and again 6 went on short-term leave. (Id.) 7 Because his short-term leave was set to expire in April 2021, Plaintiff inquired about the 8 process to obtain his long-term disability benefits. (Id. ¶ 14.) In response, Guardian told Plaintiff 9 he had not applied for long-term benefits because Plaintiff never submitted an “evidence of 10 insurability” form. (Id.) Plaintiff believed he had been accepted for coverage and had been 11 paying for long-term coverage since May 2020. (Id.) Plaintiff submitted another form, again 12 selecting long-term coverage. (Dkt. No. 29-8 at 5.) He also provided an evidence of insurability 13 form, (id. at 7), and confirmed coverage premiums had been deducted from his paycheck, (Dkt. 14 No. 29-9 at 2.) 15 Guardian declined to provide coverage based on Plaintiff’s “history of musculoskeletal 16 disorder” and the “medical history on [Plaintiff’s] application.” (Dkt. No. 27-1 at 638, 642.) 17 Plaintiff requested Guardian waive the “evidence of insurability” requirement because—he 18 wrote—he had no health issues when he started paying for long-term coverage in 2020. (Dkt. No. 19 29-11 at 3.) Guardian declined to waive the requirement. (Id.) 20 In December 2021, after receiving another notice from Pacific States that he had long-term 21 disability coverage, Plaintiff’s counsel requested a claim file from Guardian. (Dkt. No. 29-1 ¶ 2.) 22 A few months later, Guardian sent a letter to Plaintiff’s counsel stating “On 1/25/2022 your claim 23 was set up to review for Long Term Disability benefits. According to our records, you are not 24 insured for Group Long Term Disability coverage with Guardian as your application was denied 25 due to your medical history.” (Dkt. No. 27-1 at 645.) The notice included a section titled “Your 26 Appeal Rights” with attached instructions as to how to appeal an adverse decision. (Id. at 645- 27 651.) Plaintiff’s attorneys assert they never received that letter. (Dkt. No. 29 at 11.) Plaintiff then 1 DISCUSSION 2 Defendants move for summary judgment on one ground: Plaintiff’s failure to exhaust 3 administrative remedies under the plan prior to filing suit. But, even if the Court assumes Plaintiff 4 failed to exhaust administrative remedies under the plan,2 Defendants’ motion fails. Because the 5 plan does not require administrative remedies exhaustion, Plaintiff’s failure to exhaust does not 6 doom his claim. Spinedex, 770 F.3d at 1299. 7 I. Exhaustion 8 “ERISA itself does not require a participant or beneficiary to exhaust administrative 9 remedies in order to bring an action under § 502 of ERISA, 29 U.S.C. § 1132.” Bilyeu v. Morgan 10 Stanley Long Term Disability Plan, 683 F.3d 1083, 1088 (9th Cir. 2012) (quoting Vaught v. 11 Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008)). “Instead, ERISA 12 mandates an opportunity for administrative review, see 29 U.S.C. § 1133(2), and [the Ninth 13 Circuit has] treated completion of this administrative review as a prudential exhaustion 14 requirement.” Wit v. United Behav. Health, 58 F.4th 1080, 1097–98 (9th Cir. 2023) (citing 15 Castillo v. Metro. Life Ins. Co., 970 F.3d 1224, 1228 (9th Cir. 2020)). 16 But, under binding precedent, ERISA exhaustion is ultimately a question of contract. If a 17 plan makes exhaustion optional, exhaustion is optional. Spinedex, 770 F.3d at 1299. If a plan 18 makes exhaustion mandatory, exhaustion is mandatory. Wit, 58 F.4th at 1098. No judge-made 19 exceptions excuse non-compliance. Id. 20 A. Prudential Exhaustion 21 1. Amato v. Bernard 22 The Ninth Circuit first announced the “prudential exhaustion” doctrine in Amato v. 23 Bernard, 618 F.2d 559, 566 (9th Cir. 1980). Amato’s holding rests largely on legislative history. 24 2 The parties dispute, to some extent, whether Plaintiff did attempt to exhaust his administrative 25 remedies. (Dkt. No. 29 at 12 n.2; Dkt. No. 30 at 8.) Plaintiff describes the entire saga listed above as his attempt to appeal Guardian’s denial and evidence further efforts would be futile. (Dkt. No. 26 29 at 12 n.2.) Defendants characterize Plaintiff’s initial communications with Guardian and Pacific States—in April and May 2020—as coverage denials during “open enrollment.” (Dkt. No. 27 30 at 8.) Defendants argue Guardian denied a claim only once, in February 2022. (Id. at 9.) As 1 For example, ERISA’s legislative history linked ERISA to the Labor Management Relations Act. 2 Id. at 567. Because the LMRA requires administrative exhaustion, the Court found the legislative 3 history “clearly suggests that Congress intended to grant authority to the courts to apply the 4 exhaustion requirement in suits arising under [ERISA].” Id. But the Amato court also made 5 arguments from ERISA itself. While ERISA’s text does not require exhaustion, it does require 6 plans to offer administrative remedies and empowers the Secretary of Labor to regulate 7 administrative review. Id. According to the panel, “it would certainly be anomalous if the same 8 good reasons that presumably led Congress and the Secretary to require covered plans to provide 9 administrative remedies for aggrieved claimants did not lead the courts to see that those remedies 10 are regularly used.” Id. at 567. Finally, the Court recognized a practical benefit of exhaustion 11 because “fully considered actions” might “assist the courts when they are called upon to resolve 12 controversy. Id. at 568. So—based on the legislative history, the text, and the policies underlying 13 the text—the Ninth Circuit held “that the federal courts have the authority to enforce the 14 exhaustion requirement in suits under ERISA, and that as a matter of sound policy they should 15 usually do so.” Id. at 568. 16 2. The Exceptions 17 From its inception, however, prudential exhaustion was a matter of discretion—not a 18 bright-line rule. Indeed, Amato announced both the exhaustion requirement and its exceptions. 19 Futility, inadequate remedies, and unreasonable claims procedures each excuse exhaustion. 20 Amato, 618 F.2d at 568; Vaught, 546 F.3d at 626–27. Futility applies only where administrative 21 review is “demonstrably doomed to fail.” Diaz v. United Agr. Emp. Welfare Ben. Plan & Tr., 50 22 F.3d 1478, 1485 (9th Cir. 1995). The “inadequate remedy” exception describes situations where 23 internal review procedures are inadequate to provide a meaningful remedy or unbiased process. 24 Amato, 618 F.2d at 568; Diaz, 50 F.3d at 1484. Similarly, the “unreasonable claims procedures” 25 exception stems from ERISA’s regulations, which state “a claimant shall be deemed to have 26 exhausted the administrative remedies under the plan” if the plan does not follow “reasonable” 27 claims procedures. Id. Vaught, 546 F.3d at 627 (quoting 29 C.F.R. § 2560.503–1(l)). 1 Rather, when an exception applies, “a court is obliged to exercise its jurisdiction and is guilty of 2 abuse of discretion if it does not[.]” Amato, 618 F.2d 568. 3 B. Contractual Exhaustion 4 Two precedential decisions limit the applicability of judge-made “prudential exhaustion.” 5 Under Spinedex Physical Therapy USA Inc. v. United Healthcare of Arizona, Inc., 770 F.3d 1282, 6 1299 (9th Cir. 2014) and Wit v. United Behavioral Health, 58 F.4th 1080, 1098 (9th Cir. 2023), 7 the plan terms control exhaustion. 8 1. Spinedex Physical Therapy USA v. United Healthcare of Arizona 9 In Spinedex Physical Therapy USA v. United Healthcare of Arizona, the plaintiffs argued 10 the ERISA plans did not expressly require exhaustion and so their claims should not be barred for 11 failure to exhaust. 770 F.3d at 1298. The court agreed:

12 A number of our sister circuits have held that a claimant need not exhaust when the plan does not require it. [citations omitted].3 We 13 arguably adopted the same rule in Nelson v. EG & G Energy Measurements Group, Inc., 37 F.3d 1384 (9th Cir. 1994), and we do 14 so explicitly today. In Nelson, we rejected a defendant’s contention “that the plaintiffs were required to bring their valuation claims before 15 the Administrative Committee prior to seeking relief from the courts,” observing that “[n]othing in the Plan requires such action prior to 16 instituting suit.” Id. at 1388. 17 Spinedex, 770 F.3d at 1298-99 (emphasis added) (cleaned up). So, under binding Ninth Circuit 18 precedent, “a claimant need not exhaust when the plan does not require it.” Id. at 1299. 19 Defendants’ attempt to limit Spinedex to when an ERISA plaintiff subjectively believes 20 exhaustion is optional is unpersuasive. Spinedex did note a plan’s language might mislead 21 claimants to believe exhaustion is not a prerequisite to filing suit:

22 ERISA seeks to avoid saddling plaintiffs . . . with the burdens and procedural delays imposed by inartfully drafted plan terms. Where 23 plan documents could be fairly read as suggesting that exhaustion is not a mandatory prerequisite to bringing suit, claimants may be 24 affirmatively misled by language that appears to make the exhaustion 25 3 Spinedex quotes two out-of-circuit opinions during this portion of the opinion: Kirkendall v. 26 Halliburton, Inc., 707 F.3d 173 (2d Cir. 2013) and Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203 (11th Cir. 2003). These cases describe the relevant test in subjective terms—i.e., the 27 question is whether the claimant “reasonably interprets” exhaustion as optional. Id. But, as requirement permissive when in fact it is mandatory as a matter of 1 law.

2 [E]xempting from the general exhaustion requirement those plan participants who “reasonably interpret” their ERISA plan not to 3 impose an exhaustion requirement will have the salutary effect of encouraging employers and plan administrators to clarify their plan 4 terms and, thereby, of leading more employees to pursue their benefits claims through their plan’s claims procedure in the first instance.” 5 6 770 F.3d at 1298-99 (cleaned up). But the court did not hold that only those plaintiffs 7 affirmatively misled are not required to exhaust; instead, it “explicitly” held that “a claimant need 8 not exhaust when the plan does not require it.” Spinedex, 770 F.3d at 1298. Consistent with that 9 holding, the Ninth Circuit remanded the case to the district court to determine whether:

10 (1) the plan required exhaustion of administrative remedies; (2) the claim must be deemed exhausted due to United’s noncompliance with 11 the claims procedures; and (3) the claim was in fact exhausted. 12 Id. at 1299. It did not remand to determine whether the plaintiffs subjectively believed they were 13 not required to exhaust. Indeed, such an inquiry would do what ERISA seeks to avoid: saddle 14 plaintiffs “with the burdens and procedural delays imposed by inartfully drafted plan terms.” Id. at 15 1298 (quoting Kirkendall v. Halliburton, Inc., 707 F.3d 173, 181 (2d Cir. 2013)). Does the court 16 hold a trial to determine if the plaintiff was actually misled? Is the plaintiff barred from claiming 17 he was misled merely because he was represented by counsel, as Defendants claim here? Do 18 Defendants conduct discovery on the question? A test grounded in the plan’s objective terms, 19 rather than these subjective questions, better serves the practical goal of encouraging “employers 20 and plan administrators to clarify their plan terms and, thereby, of leading more employees to 21 pursue their benefits claims through their plan’s claims procedure in the first instance.” See Watts, 22 316 F.3d at 1209–10. 23 Other district courts considering Spinedex have reached the same conclusion. See, e.g., 24 Greiff v. Life Ins. Co. of N. Am., 386 F. Supp. 3d 1111 (D. Ariz. 2019) (describing test in objective 25 terms); In re Out-of-Network Substance Use Disorder Claims Against UnitedHealthcare, No. 19- 26 cv-2075-JVS, 2023 WL 2808747, at *22 (C.D. Cal. Jan. 13, 2023) (same); Adan v. Kaiser Found. 27 Health Plan, Inc., No. 17-CV-01076-HSG, 2018 WL 1174559, at *5 (N.D. Cal. Mar. 6, 2018) 1 20-cv-102-JWH, 2022 WL 757315, at *4 (C.D. Cal. Feb. 2, 2022) (quoting a subjective portion of 2 Spinedex without deciding the exhaustion question). 3 2. Wit v. United Behavioral Health 4 The Ninth Circuit recently confirmed the plan’s language controls whether exhaustion is 5 required. See Wit v. United Behavioral Health, 58 F.4th 1080 (9th Cir. 2023). Wit is largely a 6 mirror image of Spindex. In Wit, the relevant plan stated: “You cannot bring any legal action 7 against us to recover reimbursement until you have completed all the steps [described in the 8 plan].” Id. at 1091. After the district court excused exhaustion on futility grounds, the Ninth 9 Circuit reversed that decision. Id. at 1091. The court first declared:

10 The Supreme Court has explained that “[t]he plan, in short, is at the center of ERISA,” and accordingly, “[t]his focus on the written terms 11 of the plan is the linchpin of ‘a system that is [not] so complex that administrative costs, or litigation expenses, unduly discourage 12 employers from offering [ERISA] plans in the first place.’” While Congress, in enacting ERISA, “empowered the courts to develop, in . 13 . . light of reason and experience, a body of federal common law governing employee benefit plans,” federal common law doctrines 14 cannot alter or override clear and unambiguous plan terms. 15 Id. at 1098 (cleaned up). Accordingly, the court held:

16 [w]hen an ERISA plan does not merely provide for administrative review but, as here, explicitly mandates exhaustion of such 17 procedures before bringing suit in federal court and, importantly, provides no exceptions, application of judicially created exhaustion 18 exceptions would conflict with the written terms of the plan. 19 Id. at 1098. Thus, Wit held prudential exhaustion and its exceptions are not relevant when “clear 20 and unambiguous plan terms” create a “contractual exhaustion requirement.” Id. This holding is 21 consistent with Spinedex’s command that “a claimant need not exhaust when the plan does not 22 require it.” Spinedex, 770 F.3d at 1299. In both cases, the plan’s plain language controls. 23 * * * 24 In sum, “a claimant need not exhaust when the plan does not require it.” Id. But if a plan 25 makes exhaustion mandatory, exhaustion is mandatory.4 Wit, 58 F.4th at 1098. 26 4 As Defendants noted at oral argument, Wit discusses prudential exhaustion (and its exceptions) 27 as good law before holding a claimant must exhaust if the plan requires it. Id. at 1097-98. But Wit 1 C. Application 2 The Court interprets ERISA plans “as would a person of average intelligence and 3 experience.” Vaught, 546 F.3d at 628. The plain language of Pacific States’ plan could reasonably 4 be read as making exhaustion optional prior to an ERISA suit. The plan states: “Appeal of 5 Adverse Benefit Determinations: If a claim is wholly or partially denied, the claimant will have 6 up to 180 days to make an appeal.” (Dkt. No. 27-1 at 522.) During an appeal, the plan requires 7 Guardian provide claimants “the opportunity” to submit evidence, view Guardian’s claim records, 8 and receive a review based on that record. (Id.) And, if Guardian denies an appeal, the plan 9 requires Guardian provide the claimant: “a statement describing the claimant’s right to bring a 10 civil suit under Section 502(a) of the Employee Retirement Income Security Act of 1974” 11 including “any applicable contractual limitations period that applies the claimant’s right to bring 12 such an action.” (Id. at 523.) 13 This language does not require exhaustion. The Wit plan required exhaustion prior to 14 filing a suit in court. Wit, 58 F.4th at 1091. This plan, in contrast, requires an appeal be filed 15 within 180 days. (Id. at 522.) But it does not require an appeal. (Id.) The language implies “that 16 a claimant waives her right to an administrative appeal of a claim denial if she does not file a 17 written request for appeal within the specified timeframe. However, nothing in this language 18 would alert a reasonable claimant that waiving the claimant’s right to an administrative appeal will 19 preclude the claimant from bringing a civil action under Section 502(a) of ERISA.” Greiff v. Life 20 Ins. Co. of N. Am., 386 F. Supp. 3d 1111, 1114–15 (D. Ariz. 2019). Telling a claimant about a 21

22 exhaustion is either reasonably read as mandatory or optional, it is not clear how a court could ever reach the prudential exhaustion requirement (or the exceptions thereupon). In other words, it 23 seems either: (1) a plan makes exhaustion optional and Spinedex means exhaustion is optional; or (2) a plan makes exhaustion mandatory and Wit means exhaustion is mandatory. Thus, applying 24 Spinedex and Wit faithfully, as this Court must, contractual interpretation may have displaced prudential exhaustion and its exceptions. 25

Defendants object this displacement is contrary to Wit’s recognition of prudential exhaustion. The 26 Court disagrees. Wit did not overrule Spinedex. Rather, the Wit court had no reason to consider the non-mandatory counterfactual because the plan there made exhaustion mandatory. Wit, 58 27 F.4th at 1091. Spinedex and Wit are binding precedents with consistent instructions to examine 1 right to an appeal is “not the same as telling a claimant she must appeal or she loses her right to 2 challenge the decision in court.” Laura B. v. United Health Grp. Co., No. 16-cv-01639-JSC, 2017 3 WL 3670782, at *6 (N.D. Cal. Aug. 25, 2017); see also Gallegos v. Mount Sinai Med. Ctr., 210 4 F.3d 803, 810 (7th Cir. 2000) (discussing the absence of penalty language in plan documents as 5 implying voluntary exhaustion). 6 Moreover, the “Alternative Dispute Resolution” section tells claimants the appeal process 7 is a “voluntary resolution dispute resolution option.” (Dkt. No. 27-1 at 524.) Immediately after 8 discussing the appeal process, the plan states: 9 Alternative Dispute Options: The claimant and the plan may have 10 other voluntary alternative dispute resolution options, such as mediation. One way to find out what may be available is to contact 11 the local U.S Department of Labor Office and the State insurance regulatory agency. 12 In addition to any legal rights you may have under section 502(a), if 13 you believe that we have violated ERISAs procedural requirements, you may request that we review any claimed violation(s) and we will 14 respond to you within ten days. 15 (Id. (emphasis added).) “Other” means in addition to that just described above; in other words, the 16 appeal is a voluntary alternative dispute resolution option and mediation is another such option. 17 Similarly, the phrase “[i]n addition to any legal rights you may have under section 502(a)” 18 suggests ERISA rights exist outside this appeal process. (Id.); see also Barnes v. Indep. Auto. 19 Dealers Ass'n of Cal. Health & Welfare Benefit Plan, 64 F.3d 1389, 1393 (9th Cir. 1995) 20 (requiring courts “construe ambiguities in an ERISA plan against the drafter and in favor of the 21 insured.”) Thus, a reasonable reader not only could, but would understand an ERISA suit as an 22 “in addition to” or “alternative” to the appeal process, rather than a prerequisite. 23 Defendants’ contrary arguments are unpersuasive. First, Defendants note that after 24 describing the appellate process, the plan requires Guardian “[p]rovide a statement describing the 25 claimant’s right to bring a civil suit under Section 502(a) of the Employee Retirement Income 26 Security Act of 1974.” (Id. at 523; Dkt. No. 30 at 12.) But that requirement speaks to Guardian’s 27 obligations, not Plaintiff’s. “[T]he language indicates that a claimant has a right to bring a civil 1 claimant does not have a right to bring a civil action under any other circumstances.” Greiff, 386 2 F. Supp. 3d at 1114; see, e.g., Wit, 58 F.4th at 1091 (“You cannot bring any legal action against us 3 to recover reimbursement until you have completed all the steps [described in the plan].”) 4 Defendants ask the Court to infer mandatory exhaustion from the “structure” of the appeals 5 section. (Dkt. No. 27 at 15-16.) But such inferences from ambiguity must be drawn against 6 drafting parties, not in their favor. Barnes, 64 F.3d at 1393. 7 Finally, to the extent Defendants rely on the February 2022 denial letter to establish 8 mandatory exhaustion, that argument also fails. (See Dkt. No. 27-1 at 646.) Spinedex requires the 9 Court to determine if “the plan” requires exhaustion. Spinedex, 770 F.3d at 1299. Defendants 10 give no explanation as to how a letter issued after a claim denial can modify the agreement in the 11 ERISA plan. (See id. at 33 (“The Policy and any riders or amendments hereto, and the 12 Application of the Participating Employer, a copy of which is attached hereto or endorsed hereon 13 and made a part hereof, constitute the entire contract between the parties”); 36 (defining contract); 14 157 (same).) Moreover, consideration of non-plan documents like the denial letter would re-open 15 the subjective inquiry Spinedex seeks to avoid. For example, Plaintiff’s counsel declare they never 16 received the denial letter. (Dkt. Nos. 29-1; 29-2; 29-3.) Does that matter? Must a court conduct a 17 trial to determine if that representation is true? Such an inquiry would be contrary to the Supreme 18 Court’s command that “the plan, in short, is at the center of ERISA” because “focus on the written 19 terms of the plan is the linchpin of a system that is not so complex that administrative costs, or 20 litigation expenses, unduly discourage employers from offering ERISA plans in the first place.” 21 Wit, 58 F.4th at 1098 (quoting Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 108 22 (2013) (cleaned up)). Put differently, if courts mandated exhaustion under these circumstances, it 23 would undermine the very benefits exhaustion purports to promote. 24 In sum, the Pacific States plan does not require exhaustion. “A claimant need not exhaust 25 when the plan does not require it.” Spinedex, 770 F.3d at 1299. So, Defendants’ motion for 26 summary judgment fails because pre-suit exhaustion was optional under the Pacific States plan. 27 // 1 CONCLUSION 2 For the reasons stated above, Defendants’ motion for summary judgment is DENIED. The 3 || deadlines in the stipulated schedule at Dkt. No. 33 remain in place. 4 IT IS SO ORDERED. 5 This Order disposes of Dkt. No. 27. 6 || Dated: April 13, 2023 7 8 ’

AQQUELINE SCOTT CORLE

9 Unitéd States District Judge 10 11 a 12

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