DemurrerCal. Super. - 6th Dist.November 14, 2017\OOOQQ'JIALANH h NNb-‘l-‘i-II-Hb-‘HD-li-IF‘ BS-OWOOQOM-DWNHO . _.,.A . AN 4:. 255 . “:26 'y 27 g 28 RAINES FELDMAN LLP Richard J. Decker, Esq. (Bar No. 119673) rdecker@raineslaw.com Marc Berkemeier, Esq. (Bar No. 234912) mberkemeier@raineslaw.com 1800 Avenue of the Stars, 12lh Floor Los Angeles, CA 90067 Telephone: (310) 440-4100 Facsimile: (310) 691-1367 Attorneys for Defendants AETNA LIFE AND HEALTH INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION VILASINI GANESH, M.D., an individual, Plaintiff, vs. AETNA LIFE AND HEALTH INSURANCE COMPANY, (A California Corporation) and DOES 1 through 25 inclusive, Defendants. v 06a tuna F136 :5 9p 2. , Case No. 17CV319129 {By Fax Assigned for all purposes to HOIE‘P'Eter ‘ Kirwan, Dept. D-l9 DEFENDANT AETNA LIFE AND HEALTH INSURANCE COMPANY’S NOTICE OF DEMURRER; DEMURRER TO FOUR CAUSES OF ACTION IN PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MARC BERIGEMEIER Date: May 10, 2018 Time: 9:00 am. Location: 191 North First Street San Jose, CA 95113 Dept.: D-l9 DEFENDANT AETNA LIFE AND HEALTH INSURANCE COMPANY'S NOTICE OF DEMURRER; AND DEMURRER T0 COMPLAINT \oooqoxm-hwwh- NNNNNé-H~H_._.__.._. aggaewmt-oowqo‘mm-‘o TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 10, 2018 at 9:00 am, or as soon thereafier as counsel may be heard in Department D-19 of the above-entitled Court located at 191 North First Street, San Jose, CA 95113, Defendant Aetna Life and Health Insurance Company (“Defendant”) will and hereby does generally and specifically demur to Plaintiff Vilasini Ganesh M.D.’s (“Plaintiff”) complaint. Defendant’s Demurrer is based upon California Code of Civil Procedure § 430.10(e) and (t), on the grounds that the purported first, second, third, and fourth causes of action do not state facts sufficient to constitute causes of action and/or these causes of action are uncertain. Specifically, Defendant demurs on the following grounds: Demurrer to the First Cause of Action 1. Defendant demurs to the first cause of action for Breach of Contract on the grounds that Plaintiff has failed to state sufficient facts to support a cause of action. 2. Defendant demurs to the first cause of action for Breach of Contract on the grounds that it is vague and uncertain, as it does not attach the written contract nor cite verbatim the contract alleged to be breached. 3. Defendant demurs to the first cause of action for Breach of Contract on the grounds that it is barred by the statute of limitations, as pled. 4. Defendant demurs to the first cause of action for Breach of Contract on the grounds that Plaintiff has not shown a contractual basis nor improper, illegal or otherwise malicious actions on the part of Defendant that would support a claim for punitive damages. Dcmurrer to Second Cause of Action 5. Defendant demurs to the second cause of action for Negligent Interference With an Economic Advantage and a Prospective Economic Advantage on the grounds that Plaintiff has failed to state sufficient facts to constitute a cause of action. 6. Defendant demurs to the second cause of action for Negligent Interference With an Economic Advantage and a Prospective Economic Advantage on the grounds that it is barred by the statute of limitations, as pled. 1 DEFENDANT AETNA LIFE AND HEALTH INSURANCE COMPANY ’3 NOTICE OF DEMURRER; AND DEM URRER TO COMPLAINT WOOQOt-DDJNr-t NNNNNNNNNHHHI-l-‘HHHD-‘b-i mflmm-fiWNHOWOOQO‘xm-D-WNI-IO Demurrer to Third Cause of Action 7. Defendant demurs to the third cause of action for Intentional Interference With An Economic Advantage And A Prospective Economic Advantage on the grounds that Plaintiff has failed to state sufficient facts to constitute a cause of action. 8. Defendant demurs to the third cause of action for Intentional Interference With An Economic Advantage And A Prospective Economic Advantage on the grounds that it is barred by the statute of limitations, as pled. 9. Defendant demurs to the third cause of action for Intentional Interference With An Economic Advantage And A Prospective Economic Advantage on the grounds that Plaintiff has not shown improper, illegal or otherwise malicious actions on the part of Defendant that would support a claim for punitive damages. Demurrer to Fourth Cause of Action 10. Defendant demurs to the fourth cause of action for Unfair Business Practices on the grounds that Plaintiff has failed to state sufficient facts to constitute a cause of action. 11. Defendant demurs to the fourth cause of action for Unfair Business Practices on the grounds that it is vague and uncertain as it in no way identifies the alleged unfair, unlawful, and fraudulent conduct. 12. Defendant dcmurs to the fourth cause of action for Unfair Business Practices on the grounds that Plaintiff has not pied a basis for injunctive relief. 13. Defendant demurs to the fourth cause of action for Unfair Business Practices on the grounds that Plaintiff has not pled a basis for attorneys’ fees under this claim. /// / / / / / / 2 DEFENDANTAETNA LIFE AND HEALTHZNSURANCE COMPANY ’S NOHCE 0F DEMURRER; AND DEMURRER T 0 COMPLAINT KOOOQQMDUJN- NNNNNNNNNP-‘D-‘h-Iu-Ib-IHD-I-‘b-ID-l WQQMAWNHOWOONQMQWNHO This Demurrer is based upon this Notice, the supporting Memorandum of Points and Authorities filed concurrently herewith, the complete records and files in this action, all matters of which the Court may take judicial notice including Defendant’s concurrently filed Request For Judicial Notice, ‘and upon such further oral and documentary evidence as the Court may consider at the hearing on this Demurrer. Date: February 5, 2018 RAlNES FELDMAN LLP HEALTH INSURANCE COMPANY 3 DEFEADANTAETNA LIFE AND HEALTH INSURANCE COMPANY'S NOTICE OF DEMURRER; AND DEM URRER T0 COMPLAINT \OWQQMAWNH NNNNNNNi-IHt-It-Ii-aHHi-In-ai-a gBQM-AWNHOKOOOQQvWNI-‘o W I. INTRODUCTION .................................................................................................................. 1 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ......................................... 2 III. C.C.P. § 430.30 AUTHORIZES DEFENDANT TO DEMURRER ...................................... 3 IV. ALL FOUR CAUSES OF ACTION IN PLAINTIFF’S COMPLAINT ARE INSUFFICIENTLY PLED AND SHOULD BE DISMISSED .............................................. 4 A. Plaintiff F ails To State A Claim For Breach Of Contract ............................................... 4 B. The Second And Third Causes Of Action For Negligent And Intentional Interference With An Economic Advantage And Prospective Economic Advantage Are Insufficiently Pled ........................................................................................................... 5 i. Plaintiff’s Interference Claims Are Not Recognized Causes of Action .................... 5 ii Plaintiff‘s Remaining Interference Claims Are Time-Barred By The Applicable Statute of Limitations ................................................................................................ 6 iii. Plaintiff‘s Remaining Interference Claims Are Insufliciently Pled .......................... 6 C. The Fourth Cause Of Action For Unfair Business Practices Is Insufficiently Pled And Fails To State A Basis For Injunctive Relief ................................................................... 8 i. PlaintifTHas Not Pled Unlawful Or Fraudulent Acts ............................................... 8 ii. Plaintiff Has Not Sufficiently Pled A Basis For Injunctive Relief ......................... 10, V. CONCLUSION ..................................................................................................................... 1] i MEMORANDUM OF POINTS AND A UT HORHYES \OOOQQLIIAU’NH NNNNNNt-Ih-Ib-t-I-Ai-av-An-Ip-IH W Cases Asahi Kasei Pharma Corp. (2013) 222 Cal.App.4th 945, 961 ............................................................................................................. 6 Bethman v. City okiah (1989) 216 Cal. App. 3d 1395 .................................................................................................................. 4 Blank v. Kirwan (1985) 39 Cal. 3d 31] ...................................................... ‘ ......................................................................... 4 Bush v. California Conservation Corp. (1967) 255 Cal. App. 2d 300 .................................................................................................................. 10 Crogan v. Metz (1956) 47 CaJ.2d 398, 405) ...................................................................................................................... 5 Della Penna v. Toyota Motor Sales, USA Inc. (1995) 11 Cal.4th 376, 393 ................................................................................................................... 7, 8 Gianelli Distributing Co. v. Beck & Co., (1985) 172 Cal. App. 3d 1020, 1053 ........................................................................................................ 7 Kennedy v. Baxter Healthcare Corp. (1996) 43 Ca1.App.4th 799, 807 ............................................................................................................... 4 Khoury v. Maly's ofCalifornia, Inc., (1993) 14 Cal.App. 4lh 612 ...................................................................................................................... 9 Knoell v, Petrovich, 76 Cal. App. 4‘h 164, 168 (1999) .................................................................................................. 6 Korea Supply Co. v. Lockheed Martin Corp. (2003) 29Ca.l.4th1134,1158 .............................................................................................................. 5,7 LiMandri v. Judkins, (1997) 52 Cal. App. 4th 326, 339 ............................................................................................................. 7 Marin Tug & Barge, Inc. v. Westport Petroleum, Inc. (9th Cir.2001) 271 F.3d 825, 832 ................................................................................................. 7 Olsen v. Breeze, Inc., (1996) 48 Cal. App. 4lh 608 ...................................................................................................................... 9 Otwarth v. Southern Pac. Trans. Co. (1985) 166 Cal.App.3d 452, 459 .............................................................................................................. 4 Paul v. MilkDepots Inc., (1964) 62 Cal. 2d 129 ............................................................................................................................. 10 People v. T oomey, (1984) 157 Cal. App. 3d 1 ...................................................................................................................... 10 PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 CaJ.App.4th 579, 603 ............................................................................................................... 7 ii MEMORANDUM OF POINTSANDAUTHORIYZES \OOOQO‘llJluhbJN-e NNNNNNNNNH-‘t-‘h-Iy-Ir-IHHH-a OO\]O\U‘-§WI\J>-IO\OOO\IO\‘JIJ>WN'-o Rodriguez v. Campbell Industries (1978) 87 Cal. App. 3d 494 ...................................................................................................................... 4 Silva v. Block (1996) 49 Cal.App.4th 345, 350 ............................................................................................................... 4 Staples v. Arthur Murray, Inc. (1967) ' 253 Ca1.App.2d 507 ...................................................................................................................... 4 State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal. App. 4“] 1093 .................................................................................................................... 9 Statutes Evidence Code §451 .......................................................................................................................... 4 Evidence Code §452 .......................................................................................................................... 4 Evidence Code § 452(d) .................................................................................................................... 4 Rules Code of Civil Procedure §337 ........................................................................................................... 5 Code of Civil Procedure § 430.10(e) ................................................................................................ 3 Code ofCivil Procedure §43010(f) ............................................................. 3 Code of Civil Procedure section 526 ............................................................................................... 10 Code of Civil Procedure§ 430.30(a) ............................................................................................. 3, 4 Regulations United States Code, Section 1347 ..................................................................................................... 3 iii MEMORANDW 0F POINTS AND A UTHORI TIES m “a.-- .__.._.__.._ __..__,.___..--- O\OOO\)O\U14>UJI\J>-‘ NNNNNNNl-‘Ht-‘h-‘r-Ih-Ii-Ir-Ii-Ai-t gBmUl-kwwHoWOOQaUI-PWNH W I. INTRODUCTION Plaintiff Vilasini Ganesh, M.D. (“Plaintiff”) has filed a complaint seeking damages based upon an alleged unfair termination of her preferred provider contract with Defendant Aetna Life and Health Insurance Company (“Defendant”) in or around September 2013. Plainu'ff also contends that Defendant interfered with her relationships with her patients as a result of the termination. Plaintiffs complaint is premised upon four causes of action for: (1) breach of contract; (2) negligent interference with an economic advantage and a prospective economic advantage; (3) intentional interference with an economic advantage and a prospective economic advantage; and (4) unfair business practices. Plaintiff seeks attorneys’ fees and punitive damages in relation to some of these claims. Despite Plaintiff‘s allegations, all of these causes of action fail to state a claim and/or are uncertain for the following reasons: a Plaintiff‘s first cause of action should be dismissed because Plaintiff has not attached a copy of the alleged contract between the parties, nor stated the terms of such an agreement verbatim. There is also no legal basis for seeking punitive damages under this claim. - Plaintiff’s second cause of action for negligent interference with an economic advantage and a prospective economic advantage should be dismissed because: (1) interference with an existing economic advantage is not a recognized cause of action in California; (2) this claim is barred by the statute of limitations, as pled; and (3) and this claim does not include any allegations of independently wrongful actions by Defendant that are separate from the interference itself. - Plaintiffs third cause of action for intentional interference with an economic advantage and a prospective economic advantage should be dismissed because: (1) interference with an existing economic advantage is not a recognized cause of action in California; (2) this claim is barred by the statute of limitations, as pled; and (3) and this claim does not include any allegations of independently wrongfiJl actions by Defendant that are l AIEMORANDUM 0F POINTS AND A UTHORITIES \OOOQQKJIbUJNy-I NNNNNNND-‘HHi-‘i-‘b-IV-‘b-IHH gBOflUIAWNt-‘ODOOQOUIAWNHO separate from the interference itself. Plaintiff also pleads no facts which support punitive damages under this claim. - Plaintiff’s fourth cause of action for unfair business practices should be dismissed because: (1) Plaintiff’s only pled allegations relate to the breach of contract, which cannot serve as a basis for an unfair business practices claim when contract damages are available; (2) Plaintiff cites to no law that Defendant violated; and (3) Plaintiff has not pled a legal basis for injunctive relief or attorneys’ fees. For all of these reasons, the four causes of action in Plaintiff‘s complaint and her requests for attorneys’ fees and punitive damages should be dismissed, with prejudice, and without leave to amend.1 Pursuant to Code of Civil Procedure § 430.4], the parties have met and conferred over the issues discussed above. They were unable to reach an ageement that would avoid the filing of this Demurrer. (See Declaration of Marc Berkemeier, 1[ 2.) II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiff pleads that she is a physician who owns and operates a family physician practice in Saratoga, California. (Complaint (“Compl.”), 1| 2.) Plaintiff specifically pleads that she provides and renders professional medical services at Saratoga Los Gatos Medical Group, formerly lcnown as Campbell Medical Group. (Compl, 1[ 3.) Plaintiff alleges that Defendant is licensed by the Director of the California Department of Managed Health Care to operate a health care service plan doing business within the City of Saratoga and surrounding areas within Santa Clara County. (Compl, 1] 4.) Plaintiff alleges that in or about May 2004, she and Defendant entered into a contract on behalf of herself and the Campbell Medical Group related to reimbursement amounts for services provided to Defendant’s insureds. Plaintiff specifically pleads that she and her practice agreed to become part of Defendant’s “participating provider networ ” whereby she and her practice would agree to see and treat Defendant’s insureds at reduced rates. (Compl, 1] 8.) She alleges that, in 1 Defendant is concurrently filing a motion to strike the attomeys’ fees and punitive damages requests. 2 MEMORANDUM OFPOINTSAND AUTHORITYES ..~..-_-..,..._._.__-._...___-.--. M~._’_-_~_m~_‘-~_-uwur... ,. . . \OOO\IO\khJ>LaJN)-I N NNNNNNNI-‘h-‘i-Ii-nu-au-a--.-ni_a OOBONM-Pr-dowmflomwHO exchange for this agreement, Defendant promised to make prompt payments based on a pre- determined schedule of fees. (1d,) Plaintiff admits that, from May 2004 to late November 2013, Defendant provided prompt payment for services she rendered to Defendant’s insureds. (Compl, 1] 9.) She then alleges that Defendant sent her notice of its termination of their contract in or about September 2013, and that, starting in December 2013, Defendant no longer paid claims in accordance with the contract. (Compl., 1] 11, 16.) Plaintiff alleges that she then received complaints from her patients that they were receiving phone calls from Defendant asking them to see other physicians in the area and requesting that they stop seeing Plaintiff for medical services. (Compl, 1119.) Plaintiff pleads that she never received an explanation as to why Defendant terminated the contract and never had the opportunity to offer any documents/materials to refute Defendant’s termination. (Compl, 1117.) Plaintiff neglects to mention that a criminal case was filed against her by the United States Attorney in the US. District Court for the Northern District of California on May 19, 2016, and that she was recently found guilty of multiple counts of health care fraud related to her medical billings to multiple insurance companies, including Defendant, for billings made during the time period 2012 - 2014. (See Request for Judicial Notice, United States v. Vilasini Genes/1, et (11., US. District Court Northern District of California, Case No. l6-CR-00211-LHK, court docket and jury verdict.) In fact, she was found guilty on Count 6 for “Health Care Fraud, as to a claim for reimbursement submitted to Aetna (i.e. Defendant) for care claimed to have been provided on or about September 21, 2012, in violation of Title 18, United States Code, Section 1347, as charged in Count Six of the Indictment.” (Id) Her sentencing hearing is presently scheduled for April 25, 2018.2 (Id) Plaintiff filed her complaint in the above-captioned case on November 14, 2017 asserting four causes of action. A case management conference is scheduled for March 6, 2018. III. C.C.P. 6 430.30 AUTHORIZES DEFENDANT TO DEMURRER The party against whom a complaint or cross-complaint has been filed may object, by demurrer, “when any ground for obj ection to a complaint, cross-complaint or answer appears on the 2 This calls into question Plaintiffs ability to further prosecute the above-captioned case, considering her upcoming sentencing. 3 MEMORANDUM OF POINTS AND A UIHORITYES \OWQQMAWNb-I NNNNNNNNNi-v-HHHHHHH... ooqoxmtr-‘Okoooflmm-kr-O face thereof...” Code of Civil Procedure§ 430.30(a). A demurrer is appropriate where a complaint does not state facts sufficient to constitute a cause of action. Code of Civil Procedure § 430.10(e). Dcmurrers may also be filed for uncertainty in a pleading. Code of Civil Procedure §430.10(f). When considering a demurrer, the Court should treat all material facts as true if they are properly pled, however, the Court should not consider as true any contentions, deductions, or conclusions of fact or law. (See, Silva v. Block (1996) 49 Cal.App.4th 345, 350 (citing Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 807)). When a pleading fails to set forth facts amounting to any cause of action, a general demurrer is proper. (See, Bethman v. City of Ukiah (1989) 216 Cal. App. 3d 1395.) General demurrers are also proper as to alleged causes of action which are merely redundant, i.e., purported causes of action which add nothing new. (S ee, Rodriguez v. Campbell Industries (1978) 87 Cal. App. 3d 494.) Demurrers are sustained without leave to amend when it is clear there is no possibility of any cause of action being pled. (See, Blank v. Kirwan (1985) 39 Cal. 3d 311.) In ruling on a demurrer, the California Code of Civil Procedure specifically authorizes the Court to consider any matter which the Court must or may judicially notice under Evidence Code §§ 451, 452. (See C.C.P. § 43 0.30(a).) This includes the court records in any action pending in any court of record in the United States, including the United States District Court for the Northern District of California. (See Evidence Code § 452(d).) 1V. ALL FOUR CAUSES OF ACTION 1N PLAINTIFF’S COMPLAINT ARE INSUFFICIENTLY PLED AND SHOULD BE DISMISSED A. Plaintiff Fails To State A Claim For Breach 01' Contract Plaintiff‘s first cause of action for breach of contract fails to state a claim because it is pled to be based upon a written contract, but no contract is attached to the Complaint. A complaint alleging a cause of action for breach of a written contract must include a copy of the contract alleged to be breached, or must recite the contract verbatim. See, Staples v. Arthur Murray, Inc. (1967) 253 Cal.App.2d 507; see also Orworth v. Southern Pac. Trans. C0. (1985) 166 Cal.App.3d 452, 459 (the court held that, “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and 4 MEMORANDUM OF POINTS AND A UYHORJTIES WOOQO‘lUI-hkfilvu-a NNNNNNNH-r-‘i-r-IHi-Ii-Ab-IH ggoU‘l-DWNF-‘OKOOOQQMAWNt-o incorporated by reference”). Plaintiff uses neither of these options here. Plaintiff‘s failure to attach the written contract is especially relevant to this case since Plaintiff is alleging that the contract was terminated improperly. The wording of the contract’s termination provisions are material, including, for example, any options to terminate the contract for fraudulent billing. Further, Plaintiff seeks punitive damages under her breach of contract claim, but includes no reference to any contract provision that would permit same (considering that California law does not provide for punitive damages under a breach of contract, Crogan v. Metz (1956) 47 Ca].2d 398, 405).3 As noted in Otworth, the failure to attach the contract or to cite its terms verbatim is fatal. Plaintiff‘s first cause of action for breach of contract, therefore, should be dismissed.4 B. The Second And Third Causes Of Action For Negligent And Intentional Interference With An Economic Advantage And Prospective Economic Advantage Are Insufficiently Pled i. Plaintiff‘s Interference Claims Are Not Recognized Causes of Action Plaintiffs second cause of action for “Negligent Interference With An Economic Advantage And A Prospective Economic Advantage” and third cause of action for “Intentional Interference With An Economic Advantage And A Prospective Economic Advantage” are mutations of claims that together (and separately) are not all recognized causes of action in California. Specifically, there is no California cause of action for interference (whether negligently or intentionally) with an existing economic advantage. Instead, California permits causes of action for intentional interference with contractual relations and interference (negligently or intentionally) with a prospective economic advantage. See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1158. Note that there is no recognized negligent interference with contractual relations 3 Defendant is requesting that these punitive damages be struck in its concurrently filed motion to strike. 4 Although ambiguous in the Complaint, Plaintiff suggests that Defendant wrongfully terminated the parties’ contract (and therefore breached it) in September 2013. This is over four years prior to the filing of her complaint on November 14, 2017. Her breach of contract claim is therefore barred by the four-year statute of limitations. See C. C.P. §3 37. 5 MEMORANDUM OF POINTS AND A UYHORIYYES kOOO\IO\UI-¥>UJNt-I N N N N N’ N \--‘ >--| )-| )-A p-I r-- D-l ,_. D-l v-I claim in California. Here, Plaintiff does not assert an intentional interference with contractual relations claim, and she pleads nothing in the complaint about having existing contracts with any of the patients she argues that Defendant interfered with. Thus, her “claims” for intentional interference with an existing economic advantage and negligent interference with an existing economic advantage fail, and should be dismissed, Without leave to amend.5 ii. Plaintiff’s Remaininrz Interference Claims Are Time-Barred Bv The Applicable Statute of Limitations Although California does recognize causes of action for negligent and intentional interference with prospective economic advantage, Plaintiff‘s claims here are time barred, as pled. Plaintifl‘s complaint specifically alleges that Defendant wrongfully terminated the parties’ contract in September 2013, and stopped paying claims in December 2013,. (Compl, W11, 16.) Plaintiff then alleges that she started hearing from her patients that they were receiving phone calls and letters from Defendant asking them to see other physicians, and that they did stop seeing Plaintiff. (Compl, 1119.) This alleged conduct, however, happened four years prior to when Plaintiff filed her complaint on November 14, 2017. In California, “causes of action for interference with contractual relations and interference [with] prospective business advantage [are governed] by the two-year statute of limitations.” Knoell v. Petrovr'ch, 76 Cal. App. 4'h 164, 168 (1999) (citing Cal. Civ. Proc. Code § 339(1)). Here, none of the conduct alleged by Plaintifi" happened within two years prior to November 14, 2017. Thus, Plaintiffs negligent and intentional interference with prospective economic advantage causes of action are time-barred, as pled, and should be dismissed without leave to amend. iii. Plaintiff‘s Remaining Interference Claims Are Insufficientlv Pied Even if Plaintiffs negligent and intentional interference with prospective economic advantage claims were not time barred (they are), Plaintiff has failed to state a claim for both. The 5 Although not apparent in Plaintiff’s vague and ambiguous pleading, if Plaintiff is attempting to assert a claim that Defendant intentionally interfered with its contract with Plaintiff, that too is barred in California because a contracting party cannot be held liable in tort for interfering with its own contract. See Asahi Kasei Pharma Corp. (2013) 222 Ca].App.4th 945, 961. 6 AIEMORANDUM 0F POINTS AND AUTHORITIES _. O\OOO\IO\UI-l>-DJN NNNNNNNNNHHHh-IHHHp-AHH OONQMQWNr-‘OKOOOQQUIAUJNW elements of a claim for interference with prospective economic advantage are: (1) the existence of a valid contract or some other economic relationship between the plaintiff. and a third party containing a probability of future economic benefits to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional or negligent acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) damages to the plaintiff proximately caused by the defendant’s-acts. LiMandri v. Judkins, (1997) 52 Cal. App. 4th 326, 339; Gianelli Distributing Co. v. Beck & C0., (1985) 172 Cal. App. 3d 1020, 1053. With respect to the third element that the defendant engaged in negligent or intentional acts designed to disrupt the relationship, the interfering conduct must be wrongful by some legal measure other than the fact of the interference itself. Della Penna v. Toyota Motor Sales, USA Inc. (1995) 11 Cal.4th 376, 393. This conduct must also fall outside of the privilege of fair competition. PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 603 (disapproved on other grounds in Korea Supply Co. v. Lockhead Martin Corp. (2003) 29 Cal.4th 1134, 1159, fn. 11). Thus, to establish a claim for interference with prospective economic advantage, a plaintiff must plead that the defendant engaged in an independently wrongful act. Korea Supply Co., supra, 29 Cal.4th at 1158 (citing Della Penna, supra, 11 Cal.4th at p. 393). “An act is not independently wrongful merely because defendant acted with an improper motive”. 1d. As the California Supreme Court stated in Della Penna, “the law usually takes care to draw lines of legal liability in a way that maximizes areas of competition free of legal penalties." Id. (citing Della Penna, supra, 11 Cal.4th at p. 392). “The tort of intentional interference with prospective economic advantage is not intended to punish individuals or commercial entities for their choice of commercial relationships or their pursuit of commercial objectives, unless their interference amounts to independently actionable conduct.” 1d. (citing Marin Tug & Barge, Inc. v. Westport Petroleum, Inc. (9th Cir.2001) 271 F .3d 825, 832.) “We conclude, therefore, that an act is independently wrongful if it is unlawfiil, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Id. (citing Marin Tug &Barge, supra, at p. 835; Della Penna, supra, l l Cal.4th at p. 408). Here, Plaintiff fails to plead this independent wrongfulness by Defendant based on a legal , 7 LEMORANDUM 0F POINTS AND A UYTIORITIES \OWQOMAUJNt-I NNNNNNNb-IHHHI-Ib-Ih-Ih-li-‘b-I SJOQQUIAU’NHOOOOQQMAWNHO standard. Instead, all that Plaintiff claims is that Defendant: “(1) drafied correspondence to Dr. Ganesh’s existing and potential patients, explaining that Dr. Ganesh was no longer part of their network, and asking them to begin seeing other medical providers besides Dr. Ganesh; (2) phoning Dr. Ganesh’ existing and prospective patients and asking them to discontinue their physician/patient relationship with her and instead to begin seeing other physicians besides Dr. Ganesh; and (3) sending Dr. Ganesh’ existing patients correspondence explaining that their costs would increase if they continued to retain Dr. Ganesh as their physician of choice.” (Comp1., 1| 33). Plaintiff refers to no statute or standard that would find this conduct independently wrongful “by some legal measure.” See Della Penna, supra. 11 Cal.4th at 393. Instead, Plaintiff has only pled reasonable and prudent business practices taken by an insurance company to notify its members that a provider is no longer in network/contracted. Defendant has an obligation to its members to advise them when their physician is no longer in network and that, as a result, their member responsibility amounts could increase once the provider is considered. non-parlout-of-network. Defendant also has an obligation to its members to provide them with cost-effective coverage. Since Plaintiff was now an out-of-network provider alter the contract termination, her services would be more expensive to Defendant’s members and, if Defendant’s members sought cheaper care, they were advised to seek it from a contracted provider. To put it simply, Plaintiff has only pled that Defendant notified its members of a change in their insurance benefits. This is a far cry from any conduct that is independently wrongful by some legal measure. For these reasons, Plaintiff’s second and third causes of action fail to state a claim, and should be dismissed, without leave to amend. C. The Fourth Cause Of‘Action For Unfair Business Practices Is lnsufficiently Pled And Fails To State A Basis For Injunctive Relief i. Plaintiff Has Not Pled Unlawful Or Fraudulent Acts Plaintiff also has failed to state a claim for unfair business practices (is. her fourth cause of action). In order to state a proper cause of action under Business and Professions Code § 17200, 8 MEMORANDUM OFPOINTSAND AUTHORIYYES \Omflmmhww- NNNNNNHHHHi-i-Ib-fib-lb-iy-I Plaintiff must specifically plead that the alleged business act or practice was “unlawful," “unfair,” or ”fraudulent.” State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal. App. 4"b 1093. “The ‘unlawful business activity’ which is proscribed by section 17200 includes ‘anything that can properly be called a business practice and that at the same time is forbidden by 1aw.”’ Id at 1103. “[A]n ‘unfair’ business practice occurs when that practice ‘offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or- substantially injurious to consumers."’ 1d at 1104. As for “hand,” it bears little resemblance to common law fiaud or deception. Instead, the test is whether the public is likely to be deceived.” Id at 1105. To pass pleading requirements for a section 17200 claim, a plaintiff must plead with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly 's of California, Inc, (1993) 14 Cal. App. 4“ 612. Here, Plaintiff‘s fourth cause of action fails to satisfy any of these requirements. Plaintiff does not allege with certainty, let alone with “reasonable particularity,” any facts that would support a conclusion of unfair business conduct on the part of Defendant. Rather, as noted above, Plaintiff only describes prudent business practices taken by an insurance company to contact its members about a change in their insurance coverage, in order to better serve its members. Such actions are far from unlawfiil or unfair. Further, Plaintiff has not pled any statutes that Defendant allegedly violated, in relation to this cause of action. In Khoury, the court sustained the demurrer because the complaint “identifies no particular section of the statutory scheme which was violated and fails to describe with any reasonable particularity the facts supporting [a] violation.” Here, Plaintiff alleges what she believes to be wrongful conduct on the part of Defendant, but cites to no actual law or regulation. These vague allegations are a far cry from stating with ‘reasonably particularity’ facts supporting a violation of section 17200. In addition, to sufficiently plead a section 17200 claim, a “plaintiff must show that members of the public are likely to be deceived” by the actions of the defendant. Olsen v. Breeze, Inc. , (1996) 48 Cal. App. 4lh 608. The complaint here is devoid of any factual showing that the public is likely to be deceived by Defendant’s prudent business practices. Instead, Defendant made sure its 9 WMORANDUM 0F POINTS AND A UTY-I'ORIIYES OOONQMAWNI-I NNNNNNHD-‘D-‘F-lh-lh-IF-li-IHH aggmewmwoomwmweww_o members were not deceived about what type of coverage they would have (i.e. out-of-network coverage) if they continued to see Plaintiff as their physician after the termination of the preferred provider contract. ii. Plaintiff Has Not Sufficientlv Pled A Basis For Iniunctive Relief Although a plaintiff can obtain injunctive relief when there is a clear violation of Business and Professions Code Sections 17200, et seq., Plaintiff has not pled a basis for injunctive relief here (considering that she has not pled any unfair, unlawful, or fraudulent conduct). Plaintiff argues that, without an injunction, Defendant “will continue to cause [Plaintiff] great and irreparable injury which cannot be adequately compensated or measured in money.” (Complaint, para. 47.) However, to obtain such an injunction under § 17200, Plaintiff must make the traditional showing under Code of Civil Procedure section 526 (which sets forth instances when an injunction can be granted). As part of this showing, Plaintiff must establish that she has no adequate remedy at law for damages available to it. Bush v. California Conservation Corp. (1967) 255 Cal. App. 2d 300 (injunction improper where plaintiff had an adequate remedy of damages for breach of contract). An injunction, where an adequate remedy at law is available, would serve no purpose in preventing future wrongful acts. Here, an injunction is unnecessary because Plaintiff already has an adequate remedy at law - she can (and does) seek contractual damages for Defendant’s alleged wrongful conduct (albeit her breach of contract claim is insufficiently pled). The threat of a civil action is sufficient to deter any “future bad acts.” Paul v. Milk Depots Inn, (1964) 62 Cal. 2d 129; People v. Toomey, (1984) 157 Cal. App: 3d 1. There is no reason to determine (and Plaintiff has not pled one) that injunctive relief is appropriate here in addition to the “remedies at law” available to Plaintiff.“ / / / / / / /// 6 Oddly, Plaintiff also seeks attomeys’ fees under her §17200 claim, but includes no basis for same. Defendant addresses this further in the concurrently filed motion to strike. 10 WMORANDW 0F POINTS AND A UYTIORJTES \DOONOLA-bUJNh- MNNNNNHH-a._._.__.-_o._ V. CONCLUSION For the reasons set forth above, Defendant respectfully requests that its Demurrer be sustained and that the four causes of action be dismissed, with prejudice, and without leave to amend. Since Plaintiff‘s prayer for attorneys‘ fees and punitive damages are based upon these causes of action, they too should be dismissed, without leave to amend. Date: February 5, 2018 RA'INES FELDMAN LLP Wker erkemeier Attorneys for Defendant AE'I'NA LIFE AND HEALTH INSURANCE COMPANY l 1 MEMORANDUM OF POINTS AND A UTHORITIES O \O 00 \1 O\ U! A U) N --l ' NMNNNNN-->----a-i-.-ai-t- gBQMAwN-‘owooqoxmbwmw DECLARATION OF MARC BERKEMEIER 1, Marc Berkemeier, declare as follows: 1. I am an attorney duly admitted to practice before this court. I am a partner with the firm Raines Feldman LLP, attorneys of record for Defendant Aetna Life and Health Insurance Company (“Defendant"). I submit this declaration in support of Defendant’s Notice of Demurrer and Demurrer to Plaintiff Vilasini Ganesh, M.D.’s (“Plaintiff”) Complaint. If called as a witness, ] could and would competently testify to all facts within my personal knowledge except where stated upon information and belief. 2. Pursuant to Code of Civil Procedure §430.41, l telephoned and emailed counsel for Plaintiff, Vilasini Ganesh, M.D., on January 31, 2018 to meet and confer regarding the subject matter of Defendant’s demurrer to Plaintiff’s complaint and related motion to strike. On February 1, 2018, counsel for Plaintiff and I met and conferred by telephone regarding same. As a result of that discussion, the parties were unable to reach an agreement resolving the objections raised in the demurrer and motion to strike. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 5th day of February, 2018, at Los Angeles, California. (7 RKEMEIER l DECLARATION OF MARC BERKEMEIER _. O‘OOONO\'J1AUJN NNNNNN--.-._H-_~H.- gggm4>ww~o©mxlmmAWM~ FILED 21118 FEB '51 P 2: 11 STATE OF CALIFORNIA, COUNTY OF LOS ANGELE‘S' "If“ ,3 I PROOF OF SERVICE (OFT EC T I am employed in the County of Los Angeles, State of Califomiadf years and not a party to the within action; my business address is 1800 A u ofthe-$%‘s'fi?l’2e .’ Floor, Los Angeles, CA 90067. On February 5, 201,8, 1 served the following document(s) on the interested parties in this action: DEFENDANT AETNA LIFE AND HEALTH INSURANCE COMPANY’S NOTICE OF DEMURRER; DEMURRER TO FOUR CAUSES OF ACTION IN PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MARC BERKEMEIER by placing true copies thereof enclosed in sealed envelopes addressed as follows: Heather B. Gibson, Esq. Law Offices of Heather Gibson, RC. 187] Martin Avenue Santa Clara, CA 95050 Tel.: (669) 230-3405 Email: hgibsondbgibsonhealth-law.com IE (BY MAIL) I caused such envelope to be deposited in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I placed such envelope with postage thereon prepaid in the United States mail at Los Angeles, California. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the US. postal service on that same day with postage thereon fully prepaid in Los Angeles, California in the ordinary course of business. E] (BY E-MAIL) I sent such document to the individual(s) identified at the email referenced above. m (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 5, 2018, at Los Angeles, California. StephahjeSegovia ‘4 1 PROOF OF SER VICE
