Opinion
C081793
04-27-2018
JAMSHID SALEH, Plaintiff, Cross-defendant and Respondent, v. MICHAEL HAIGH et al., Defendants, Cross-complainants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 177879)
Plaintiff, cross-defendant and respondent Jamshid Saleh, M.D., doing business as Northern California Neurological Surgery (hereafter Saleh), sued defendants, cross-complainants, and appellants Michael Haigh and Stewart C. Altemus, doing business as Altemus & Wagner (hereafter Altemus; collectively defendants), to recover the difference between what Saleh billed and what Haigh's insurer paid for Haigh's medical care. Ultimately, judgment was entered in favor of Saleh. Haigh and Altemus now appeal, contending the trial court erred in denying their motion to enforce settlement, and in its construction and application of the contractual agreements between the parties. We will affirm the judgment.
Altemus & Wagner is the law firm that represented Haigh in a personal injury lawsuit against Haigh's chiropractor (described in the facts below).
FACTUAL AND PROCEDURAL BACKGROUND
As an advisement to defendants, citation to the "tab number" in the appellants' appendix is neither particularly useful—given that the appendix is filed electronically and does not bear any tabs—nor compliant with the California Rules of Court. (Cal. Rules of Court, rule 8.204(a)(1)(C) [requiring "citation to the volume and page number of the record where the matter appears," italics added]; further rule references are to the California Rules of Court.)
In a separate action not before us in the instant appeal, Haigh sued his chiropractor alleging he suffered a herniated disc (or aggravation of an already herniated disc) in his neck as a result of the chiropractor's performing an adjustment too forcefully. Saleh treated Haigh in connection with Haigh's herniated disc. Saleh saw Haigh for an introductory office visit, performed a discectomy and fusion on Haigh in November 2009, had a followup visit with Haigh in March 2010, and for these services billed a total of $18,745.
In July 2013, Saleh filed suit against defendants alleging causes of action for breach of contract, constructive trust (Civ. Code, § 2224), and conversion. Saleh alleged Haigh entered into a financial policy agreement with him in November 2009 in which Haigh agreed he would be responsible for Saleh's charges, and that Haigh also acknowledged he was creating a lien in favor of Saleh against any and all funds he received as a result of his personal injury action, regardless of the source of the funds. Saleh further alleged that in March 2010 Altemus received notice of the lien and agreed to adhere to the terms of the lien. Saleh also alleged that though Haigh settled his separate personal injury action against his chiropractor and received some unknown sum, he refused to pay Saleh for services rendered as required by the lien agreement. Haigh and Altemus cross-complained against Saleh, alleging causes of action for breach of contract, declaratory relief, account stated, open book account, promissory estoppel, unfair business practices, unjust enrichment, and third party beneficiary.
In February 2015, pursuant to Code of Civil Procedure section 998, Haigh and Altemus moved to enforce settlement and for entry of judgment against Saleh. They claimed Saleh had, through his counsel, improperly and invalidly attempted to withdraw an offer made pursuant to section 998 after defendants had communicated their acceptance to him. The trial court found that Haigh and Altemus had failed to establish that they had conveyed acceptance of the section 998 offer before receiving Saleh's revocation of the offer. Thus, the court denied their motion to enforce settlement and to enter judgment.
Undesignated statutory references are to the Code of Civil Procedure.
At trial, Haigh acknowledged that the intake documents provided to him when he first consulted with Saleh informed him that Saleh was not a contracted provider with Haigh's insurance company, Blue Cross; however, he claimed not to understand what the documents meant. Haigh also acknowledged that he signed a "Financial Policy Agreement" (the Agreement) with Saleh, but claims he did not read the document. The Agreement provides as follows:
When conducted, the first day of "trial" was actually apparently a hearing on a motion in limine to determine whether certain evidence could be presented at trial. On the second day of that hearing, the parties stipulated that instead of a jury trial, the first day of the hearing on the motion in limine and the following day would constitute a court trial.
"With my signature I acknowledge that all the information provided above is true to the best of my knowledge and agree to the terms and conditions listed above which I have indicated by signing my initials. I hereby require and authorize payment of medical and surgical benefits by my insurance to Jamshid Saleh, M.D. I also understand that Northern California Neurological Surgery will bill my insurance company as a courtesy to me and that payment for medical/surgical services provided to me by Dr. Saleh is ultimately my responsibility. If Dr. Saleh has a contractual agreement with my insurance company, he will accept the contracted rates. However, I am responsible for co-pays, deductibles and any charges not covered by my insurance plan. If for any reason, payment is not received from my insurance company, I will be responsible for all charges.
"By signing below I acknowledge that I am creating a lien in favor of Northern California Neurological Surgery/Jamshid Saleh, M.D., against any and all funds I receive as a result of having been treated by Northern California Neurological Surgery/Jamshid Saleh, M.D., regardless of the source of such funds.
"Payment for all services is due within 15 days from the date I am billed. Interest charges at the rate of 1% per month (12% per year) as well as administrative fees for re-billing will be applied for all past due and unpaid charges. I agree that if legal action must be taken to enforce the agreement, I will be responsible for payment of all legal fees including but not limited to attorney & collection agency fees."
Haigh also acknowledged signing a lien in favor of Saleh after meeting with his attorney and discussing the lien, but nonetheless maintained that he did not understand what the lien was. The document Haigh and Altemus (as Haigh's counsel) signed was entitled "Notice of Medical Lien Authorization" (the lien), and it provided in pertinent part as follows: "I hereby authorize and direct you, my attorney, to pay directly to NCNS [(Northern California Neurological Surgery)] such sum as may be due and owing NCNS for medical services rendered to me both by reason of this accident and by reason of any other bills that are due and to withhold such sums from any settlement, judgment or verdict as may be necessary to adequately protect and fully compensate NCNS. And I hereby further give a lien on my case to NCNS against any and all proceeds of my settlement, judgment or verdict which may be paid to you, my attorney, or myself, as a result of the injuries for which I have been treated or injuries in connection therewith. [¶] I fully understand that I am directly and fully responsible to NCNS for all medical bills submitted by NCNS for services rendered me and that this agreement is made solely for NCNS's protection and in consideration of awaiting payment. I further understand that such payment is not contingent on any settlement, judgment or verdict by which I may eventually recover said fee." The lien authorization further provides: "I acknowledge this agreement with my signature and returning [sic] it to NCNS. I have been advised that if my attorney does not wish to cooperate in protecting NCNS's interest, NCNS will not await payment but may declare the entire balance due and payable."
Nevertheless, Altemus acknowledged that after Haigh's case against his chiropractor settled for $85,000, Altemus did not withhold funds as required by the lien. Altemus testified at trial that when he signed the notice of medical lien authorization he understood he "was agreeing to pay whatever Mr. Haigh owed to [Saleh] for the co-pays and deductibles that he owed for his treatment."
Following a court trial, the trial court entered judgment in favor of Saleh. In its statement of decision, which is incorporated in the judgment, the trial court found that while Haigh "appeared to be an honest man and sincere in his conviction," his testimony was not consistent. In contrast, the court found that Saleh's testimony did not present inconsistencies, and that he also "appeared to the court to be honest and sincere."
Haigh and Altemus filed the instant appeal on April 11, 2016. Subsequently, on August 16, 2017, while this case was still pending on appeal, Haigh filed for bankruptcy. However, neither Haigh nor his counsel apparently deemed it necessary to inform this court of that filing. Rather, on January 5, 2018, after this court sent notice to the parties that we were prepared to render a decision in this case, Saleh informed this court of Haigh's bankruptcy filing that triggered an automatic stay of this appeal. We accordingly stayed all proceedings in this matter until we received notice on April 6, 2018, from Haigh and Altemus that the bankruptcy court had entered an order on February 15, 2018, modifying the automatic stay to permit continuation of the instant appeal.
DISCUSSION
Defendants first claim the trial court erred by allowing Saleh to revoke his settlement offer. We disagree because defendants did not prove that the offer was accepted prior to communication of the revocation. Defendants' other contentions center on the Agreement entered into by Haigh and Saleh, and the lien entered into by all parties. Defendants contend the trial court misinterpreted the Agreement when it concluded that it allowed for balance billing, and alternatively that the Agreement is unenforceable for several reasons. We are not persuaded that the Agreement was misinterpreted or that it is unenforceable for any of the reasons proffered by defendants. Altemus further argues that the lien agreement may not be enforced against him because he never intended to provide the balance billed amount to Saleh. Again, we are not persuaded.
"The term 'balance billing' is ordinarily used to refer to a situation in which a provider of medical services accepts payment from Medi-Cal [or an insurance provider] and then seeks to recover the balance of its customary charges from the patient [citation], or when a provider of medical services asserts a lien on a patient's recovery in tort against a third party who is responsible for the patient's injuries [citation]." (Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal.App.4th 693, 701.)
1.0 Section 998 Offer
Defendants contend the trial court erred by allowing Saleh to revoke his offer to compromise made pursuant to section 998. Defendants argue that the offer was irrevocable in the absence of a showing of changed circumstances, that Saleh could not revoke his offer by fax, and that the evidence showed it was more likely than not that the signed notice of acceptance was returned to Saleh's counsel prior to the revocation. We disagree.
1.1 Additional Background
Saleh, through his counsel, served on defendants two offers (one to Haigh and one to Altemus, each for $15,000) to settle the instant case pursuant to section 998. On January 21, 2015, following a trial readiness conference, Altemus contacted Saleh's counsel via telephone at approximately 9:30 a.m. to discuss the offers to settle the case. In that conversation, according to Altemus, he "asked for clarification" regarding the offers, indicated he and Haigh would accept one of the offers so long as it was understood judgment would be entered in a total of $15,000, and "proposed a payment plan" of $500 a month to pay off the judgment. Saleh's counsel averred that Altemus indicated he and Haigh were " 'thinking about' " the offers to compromise but did not express absolute or unequivocal acceptance of the offer. It was his understanding of the conversation that Altemus was proposing a counteroffer dependent on Saleh's being willing to accept the proposed payment plan. Saleh's counsel indicated he would check with Saleh and reach out to Altemus.
After reviewing the offers, Altemus signed the one directed to Haigh on his behalf and placed it in his outbox with instructions to his assistant to mail it with a proof of service to Saleh's counsel. Altemus's assistant estimated, based on her usual practice, that she collected the notice of acceptance from his outbox within a half hour. She further estimates that she placed the signed form along with a proof of service in a sealed and stamped envelope in a "managed service point" in the office within an hour after collecting it from the outbox. Altemus estimated that he signed the offer at 9:35 a.m. The notice of acceptance of the offer was placed in a managed service point prior to its collection by the mail carrier at 11:37 a.m. that morning. However, at 11:01 a.m., Saleh's counsel faxed to Altemus a letter withdrawing the offers to compromise.
Haigh and Altemus unsuccessfully moved to enforce settlement and entry of judgment pursuant to their purported acceptance of the offer to compromise. The trial court found that section 998 requires acceptance of an offer to compromise pursuant to that section to be in writing, and that the offer in question here provided that " '[a]cceptance of this offer is conditioned upon signing the accompanying notice of acceptance and returning it to counsel for Plaintiff . . . within 30 days after the offer is made . . . .' " (Italics added.) It additionally rejected the contentions of the parties that the phone conversation amounted to either an acceptance or a rejection of the section 998 offer, and found that, even using defendants' time estimates, they had not shown the notice of acceptance left their control before the revocation of the offer was faxed to them.
We note that the pertinent offers to compromise themselves are not included in the record on appeal. Therefore, to the extent a party disputes this representation of the language of offer to compromise or contends that it provides for some other mode of acceptance besides what is included in section 998, that contention is forfeited by the failure to present an adequate record on appeal. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
1.2 Analysis
As the pertinent offer to compromise was made pursuant to section 998, we first summarize what that provision requires with regard to acceptance or revocation. Section 998, subdivision (b) requires that a written offer to compromise made pursuant to that section "include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted." It further provides that "[a]ny acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing . . . ." (Ibid., italics added.) Section 998 does not include any provision relating to revocation of an offer to compromise made pursuant to that section. Thus, section 998 does not in itself answer the question we are called upon to decide: Is a faxed revocation made prior to the mailing of a signed acceptance of an offer to compromise effectual?
"When the language of section 998 does not provide a definitive answer for a particular application of its terms, courts may consult and apply general contract law principles. Because the process of settlement and compromise is a contractual one, such principles may, in appropriate circumstances, govern the offer and acceptance process under section 998." (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1020 (Martinez).) However, "a contract law principle will not be found to govern if its application would conflict with section 998 or defeat its purpose." (Ibid.)
Defendants first contend, citing Martinez, supra, 56 Cal.4th 1014 that in the absence of changed circumstances, an offer to compromise made pursuant to section 998 is irrevocable. We are not persuaded. In general, "an offer may be revoked any time before acceptance." (Martinez, supra, 56 Cal.4th at p. 1020, citing Civ. Code, § 1586.) The same is true of an offer made pursuant to section 998. (T. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 283-284 ["It is a well-established principle of contract law that offers may be revoked prior to acceptance. Section 998's purpose of encouraging settlements is best promoted when this fundamental contract principle is applied to offers made pursuant to that section. The Legislature did not expressly provide for the irrevocability of offers in section 998, nor did it limit the applicability of contract law to that section. This court will not imply that offers are irrevocable in the face of well[-]established contract law principles and public policies to the contrary."].) Martinez did not hold otherwise. Indeed, it cited T. M. Cobb with approval. Therefore, defendants have failed to show that offers to compromise are irrevocable in the absence of a showing of changed circumstances.
Defendants next assert that "service" of the revocation by fax was ineffectual. We first note that while section 998 requires that an offer to compromise made pursuant to that section be "serve[d] . . . in writing" (§ 998, subd. (b)), nothing requires service of a revocation of the offer to compromise. Neither have defendants presented any evidence that the offer to compromise itself provided any limitations on the means of communicating a revocation of that offer. Thus, defendants' reliance on the service provisions of section 1013 is unavailing. Further, neither section 998 nor the offer to compromise itself prohibit revocation by facsimile. Thus, we again turn to general contract law to determine whether revocation by facsimile is prohibited. We conclude it is not.
Under general contract law, and as pertinent here, an offer may be revoked, "[b]y the communication of notice of revocation by the proposer to the other party, in the manner prescribed by [Civil Code] Sections 1581 and 1583, before his or her acceptance has been communicated to the former." (Civ. Code, § 1587, subd. (a) .) Civil Code section 1581 provides that "[c]onsent can be communicated with effect, only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such communication." And Civil Code section 1583 provides that "[c]onsent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to [Civil Code] section [1582]." Thus, until acceptance of the offer to compromise was "return[ed] . . . to counsel" for Saleh, Saleh could revoke the offer by communicating the revocation by whichever means "necessarily tend[] to such communication." (Civ. Code, § 1581.) A facsimile transmitted to Altemus in his office during business hours necessarily tends to communicate to him Saleh's revocation of his offer. Thus, we conclude the employment of a facsimile transmission was not per se ineffectual here.
Finally, we turn to defendants' assertion that the evidence demonstrated it was more likely than not that they had transmitted their acceptance of the offer to compromise prior to the communication of the revocation. We recall that in this instance, the offer to compromise requires, as a condition of acceptance, that the signed notice of acceptance must be "return[ed] . . . to counsel" for Saleh. Thus, under general contract law principles, the acceptance was not complete until it was placed in the mail delivery chute to be conveyed to counsel for Saleh. (See Civ. Code, § 1582 ["If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted."].) Here, the trial court found that, even using defendants' time estimates, they had not shown the notice of acceptance left their control before the revocation of the offer was faxed to them. We review the trial court's factual findings for substantial evidence, meaning we determine " 'whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact.' " (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) While evidence in the record indicates the acceptance could have been placed in the mail delivery chute prior to the revocation being transmitted, there was also evidence to support the trial court's finding that the revocation was transmitted prior to the acceptance being returned to counsel for Saleh. Thus, there is substantial evidence to support the trial court's factual findings. Accordingly, we conclude the trial court did not err in declining to enforce the offer to compromise against Saleh.
2.0 Interpretation of Agreement
We next address defendants' contention that the trial court misinterpreted the Agreement when it concluded Saleh could collect from Haigh the difference between what Saleh billed Haigh's insurance for his services and what he received from the insurance provider. We conclude the trial court did not err in finding the Agreement permitted Saleh to balance bill Haigh.
" 'Contract interpretation presents a question of law which this court determines independently. [Citations.] A contract must be interpreted to give effect to the mutual, expressed intention of the parties. Where the parties have reduced their agreement to writing, their mutual intention is to be determined, whenever possible, from the language of the writing alone.' [Citation.] '[T]he parties' expressed objective intent, not their unexpressed subjective intent, governs.' " In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 47.) Thus, a clear and explicit contract term governs, but when it is capable of two or more reasonable constructions, the court must resolve the ambiguity. (State v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195.) In that instance, " '[e]xtrinsic evidence is admissible to prove a meaning to which the contract is reasonably susceptible.' " (Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1, 8.)
Here, though defendants argue that extrinsic evidence supports their interpretation of the Agreement, we decline to address that claim because it is forfeited by defendants' failure to provide a single record citation in support of that factually intensive assertion. (Rule 8.204(a)(1)(C); see Nickell v. Matlock (2012) 206 Cal.App.4th 934, 947 (Nickell); see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16 (City of Lincoln).) Accordingly, our analysis is limited to discerning whether, as defendants claim, the language of the Agreement clearly, and in the absence of extrinsic evidence as a result of the forfeiture by defendants, prohibits balance billing. We conclude it does not.
The Agreement reads, in pertinent part, "I hereby request and authorize payment of medical and surgical benefits by my insurance to Jamshid Saleh, M.D. I also understand that Northern California Neurological Surgery will bill my insurance company as a courtesy to me and that payment for medical/surgical services provided to me by Dr. Saleh is ultimately my responsibility. If Dr. Saleh has a contractual agreement with my insurance company, he will accept the contracted rates. However, I am responsible for co-pays, deductibles and any charges not covered by my insurance plan. If for any reason, payment is not received from my insurance company, I will be responsible for all charges."
It is undisputed that Saleh was not in a contractual agreement with Haigh's insurance company, Blue Cross. Indeed, in the paragraph of the intake documents immediately preceding (on the same page) the financial policy agreement, Haigh initialed acknowledgment of his "understand[ing] that NCNS is not a contracted provider for . . . BLUE CROSS [(Haigh's insurer)] . . . ."
Defendants argue that if Saleh had wished for the Agreement to allow for balance billing, he could have stated "that Haigh would be responsible for charges 'not paid' by Blue Cross" instead of stating "that Haigh would be responsible for charges 'not covered' by Blue Cross." In support of this argument, they claim, without reference to any evidentiary support, that " '[c]overed' in the context of insurance means that a particular treatment or procedure is something for which the insurance company will pay its share of its 'allowed amount' for the particular treatment or procedure." In the absence of some extrinsic evidence to indicate that is the technical meaning of the term in the medical profession, or that the parties agreed it would have that meaning, we instead adhere to the general rule that "[t]he words of a contract are to be understood in their ordinary and popular sense . . . ." (Civ. Code, §1644.) "Covered" as an adjective means "included in the group with respect to which a particular contract or agreement is in force." (Merriam-Webster Unabridged Dict. Online (2018) <http://unabridged.merriam-webster.com/unabridged/covered, par. 2> [as of Apr. 27, 2018], archived at <https://perma.cc/GW4E-4YXT>.) This would tend to support defendants' position. However, here the word "covered" is a verb, which means instead "to be adequate to defray or compensate: defray the cost of: pay for: BALANCE." (Id., <http://unabridged.merriam-webster.com/unabridged/cover, par. 18> [as of Apr. 27, 2018], archived at <https://perma.cc/7BLD-WZLB>.) Thus, the common meaning of the phrase here, would be that Haigh is responsible for "co-pays, deductibles and any charges not [paid for] by [his] insurance plan." (Bracketed italics added.) Therefore, the trial court did not err in determining that the language of the Agreement provides for balance billing.
Moreover, even if the singular word "covered" were susceptible to defendants' interpretation, we do not isolate one word in ascertaining the intent of the parties. (See Epic Communications, Inc. v. Richwave Technology, Inc. (2015) 237 Cal.App.4th 1342, 1349 [" '[t]he character of a contract is not to be determined by isolating any single clause or group of clauses . . . ' "]; see also Lemm v. Stillwater Land & Cattle Co. (1933) 217 Cal. 474, 480 ["the meaning is to be obtained from the entire contract and not from any one or more isolated portions thereof"].) Rather, "[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, § 1641; see City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473 ["Courts must interpret contractual language in a manner which gives force and effect to every provision, and not in a way which renders some clauses nugatory, inoperative or meaningless."].)
Here, in the context of the remainder of the Agreement, the term "covered" is not reasonably susceptible to the interpretation proffered by defendants. The Agreement first provides that though Saleh will bill the patient's insurance "as a courtesy" to the patient, the patient is "ultimately . . . responsib[le]" for paying for the medical services provided by Saleh. It then continues that Saleh will accept contracted rates, if he has a contractual agreement with the patient's insurance company, but the patient is "responsible for co-pays, deductibles, and any charges not covered by " the patient's insurance. Finally, the Agreement states that "[i]f for any reason, payment is not received from [the] insurance company, [the patient] will be responsible for all charges." Any objective reader of the Agreement would read it to mean that where Saleh was not in contract with the patient's insurance provider, he may bill the insurance company as a courtesy to the patient, but that the patient would ultimately be responsible to pay Saleh for all charges, including any copays, deductibles, or any portion of the charges not paid for by the insurance company. We also disagree that this interpretation of the term "covered" in reference to copays and deductibles renders those terms surplusage. This language is a clarifying and explanatory list of the types of costs the patient may expect to pay directly to Saleh. And, for patients who have insurance with which Saleh is contractually obligated, the amount they are responsible for is their copay and deductible, but no more. Accordingly, we conclude the trial court did not err in its interpretation of the Agreement.
3.0 Enforceability of Agreement
Defendants next claim that if the trial court properly construed the Agreement, that agreement is unenforceable for various reasons. Many of the arguments raised by defendants in this regard are forfeited by the failure to provide adequate citation to the record to support their analysis. (Rule 8.204(a)(1)(C); see Nickell, supra, 206 Cal.App.4th at p. 947; see also City of Lincoln, supra, 102 Cal.App.4th at p. 1239 & fn. 16.) As to the claims that are not forfeited, we are not persuaded.
3.1 Bans on Balance Billing
Defendants claim that Saleh's attempt to collect from Haigh the difference between his full charges and what insurance paid was illegal balance billing, making the contract unenforceable. We disagree.
Defendants first assert that balance billing, even when there is no contractual relationship between the health provider and the defendant's insurer, is prohibited by Health and Safety Code section 1379. Section 1379 provides that where there is a contract between an insurance plan and a health care provider, the written contract "shall set forth that in the event the plan fails to pay for health care services as set forth in the subscriber contract, the subscriber or enrollee shall not be liable to the provider for any sums owed by the plan." (Health & Saf. Code, § 1379, subd. (a).) It further provides that where the contract is not " reduced to writing . . . or . . . the contract fails to contain the required prohibition [described above], the contracting provider shall not collect or attempt to collect from the subscriber or enrollee sums owed by the plan." (Id., § 1379, subd. (b).) Finally, it provides that "[n]o contracting provider . . . may maintain any action at law against a subscriber or enrollee to collect sums owed by the plan." (Id., § 1379, subd. (c).) Thus, contrary to defendants' assertion, section 1379 applies only where there is a contract between the insurance plan and the health care provider. (See Prospect Medical Group, Inc. v. Northridge Emergency Medical Group (2009) 45 Cal.4th 497, 506 [noting that § 1379 "ban[s] balance billing when an HMO is contractually obligated to pay the bill"] (Prospect Medical Group).) Here, it is undisputed that Saleh was not in contract with Haigh's insurance provider, Blue Cross, at the time of Haigh's treatment. Therefore, section 1379 does not prohibit Saleh's efforts to collect his fees from Haigh.
Defendants also argue that California courts "have uniformly held that balance billing is not allowed." The cases cited by defendants in support of this proposition relate to those who accept payment from Medi-Cal or Medicare, and for emergency physicians. (See Olszewski v. Scripps Health (2003) 30 Cal.4th 798 [Medi-Cal providers]; Holmes v. California State Auto. Assn. (1982) 135 Cal.App.3d 635, 637 [Medicare provider]; see also Prospect Medical Group, supra, 45 Cal.4th 497 [emergency physicians].) It is undisputed that Saleh was not performing emergency medical treatment on Haigh, and that Haigh was neither a Medi-Cal nor Medicare subscriber. Therefore, the case law cited by defendants is inapposite. Accordingly, we conclude the contract is not unenforceable as permitting illegal balance billing.
3.2 Open Book Account
Defendants further argue, though perfunctorily, that the patient history Saleh maintained on his computer system was an open book account which means Haigh was obligated to pay Saleh only his copayments. We are not persuaded.
A " 'book account' " is "a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or to backing but detachable therefrom, or (3) on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner." (§ 337a.) However, "monies which become due under an express contract . . . cannot, in the absence of a contrary agreement between the parties, be treated as items under an open book account . . . ." (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1343.) Here, as we describe above, there existed an express written contract between Saleh and Haigh in which Haigh was obliged to pay Saleh his full charges for treatment provided, less any amount Haigh's insurance paid on his behalf. Therefore, defendants have failed to show the trial court erred in concluding they had not established the existence of an open book account.
3.3 Forfeited Claims
Among the claims raised by defendants that are dependent upon a factual showing and that are forfeited by defendants' failure to cite the record in support of their analysis are the following: (1) that Haigh was a third party beneficiary of the implied contract Saleh formed with Haigh's insurance provider when he accepted payment from the provider, thereby precluding him from billing Haigh for the difference; (2) that Saleh breached his fiduciary duty to Haigh by failing to explain that Haigh would be liable for the difference between what Saleh charged and what he collected from Haigh's insurance and by offering to settle the bill if Haigh paid promptly; (3) that the Agreement is an unenforceable adhesion contract; (4) that it is procedurally and substantively unconscionable; and (5) that balance billing Haigh pursuant to the Agreement violates the unfair competition law (Bus. & Prof. Code, § 17200 et seq.). (Rule 8.204(a)(1)(C); see Nickell, supra, 206 Cal.App.4th at p. 947; see also City of Lincoln, supra, 102 Cal.App.4th at p. 1239 & fn. 16.)
4.0 Enforceability of Lien
Altemus argues he cannot be liable based on his signing of the lien (1) because he never intended to pay the amount sought by Saleh and (2) because he cannot be liable for any greater amount than that for which Haigh is liable. Altemus has forfeited this contention due to his continued failure to provide any record citation (rule 8.204(a)(1)(C)), and by his failure to develop a cogent legal argument or provide any citation to legal authority in support of his claim (rule 8.204(a)(1)(B); People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: [I]f they are not raised or supported by argument or citation to authority, we consider the issues [forfeited]."]).
DISPOSITION
The judgment is affirmed. Respondent Jamshid Saleh is entitled to his costs on appeal. (Rule 8.278(a)(1), (2).)
BUTZ, J. We concur: ROBIE, Acting P. J. MAURO, J.