Opposition ObjectionsCal. Super. - 6th Dist.October 4, 2018 22856 - 1 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. JOY STEPHENSON-LAWS, ESQ. (SBN 113755) RICHARD A. LOVICH, ESQ. (SBN 113472) KARLENE ROGERS-ABERMAN, ESQ. (SBN 237883) DAVID F. MASTAN, ESQ. (SBN 152109) GERALDINE S. GARCIA, ESQ. (SBN 319561) 303 N. Glenoaks Blvd., Suite 700 Burbank, California 91502 Telephone: (818) 559-4477 Facsimile: (818) 559-5484 Attorneys for Plaintiff CALIFORNIA SPINE AND NEUROSURGERY INSTITUTE, a California for profit corporation SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION CALIFORNIA SPINE AND NEUROSURGERY INSTITUTE, a California for profit corporation Plaintiff, v. BLUE CROSS OF CALIFORNIA doing business as ANTHEM BLUE CROSS, a California for profit corporation; CANON U.S.A., a New York for profit corporation; and DOES 1 THROUGH 25, inclusive, Defendants. Case No.: 18CV335937 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT (FAC) Hearing on Demurrer Date: June 13, 2019 Time: 9:00 a.m. Dept.: 8 Judge: Hon. Sunil Kulkarni Complaint Filed: October 4, 2018 Trial: No date set 06/11/19 Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/28/2019 5:38 PM Reviewed By: K. Nguyen Case #18CV335937 Envelope: 2939377 22856 - i- PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page Table of Contents ..................................................................................................... i Table of Authorities ............................................................................................. ii-iii I. INTRODUCTION AND SUMMARY OF ARGUMENT ............................ 2 II. STANDARD OF REVIEW ............................................................................ 2 III. LEGAL ARGUMENT ................................................................................... 3 A. The FAC Pled Sufficient Facts to Allege Breach of Implied-in-Fact Contract and Breach of Express Contract Because Conduct of the Parties Demonstrates Consent and Existence of Terms to Enter Into A Contract ................................................................................................ 3 1. Conducts of Defendants Support Consent to Enter Into a Contract ...................................................................................... 5 2. 2.Agreement for Reimbursement Based on Plaintiff’s Usual and Customary Rate Supports Intent to Enter Into a Contact .......... 6 B. The FAC Pled Sufficient Facts to Allege Quantum Meruit Regarding Defendants’ Unjust Enrichment ........................................................... 7 IV. CONCLUSION .............................................................................................. 8 22856 - ii- PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases CDF Firefighters v. Maldonado, 158 Cal.App.4th 1226, 1239 (2008) ...................................................................... 4 Cedars Sinai Medical Center v. Mid-West Nat. Life Ins. Co., 118 F.Supp.2d 1002, 1008 (2002) ......................................................................... 5 City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal.App.4th 445, 459 (1st Dist. 1998) .............................................................. 3 Enloe Medical Center v. Principal Life Ins. Co., 2011 WL 6396517 (E.D. Cal. Dec. 20, 2011) ....................................................... 5 First Commercial Mortgage Co. v. Reece, 89 Cal.App.4th 731, 745 (2001) ............................................................................ 4 Foley v. Interactive Data Corp., 47 Cal.3d 654, 682 (1988) ................................................................................. 4, 5 Friedman v. Friedman, 20 Cal.App.4th 876, 887 (1993) ............................................................................ 5 Hoag Memorial Hospital v. Managed Care Administrators, 820 F.Supp. 1231 (C.D. Cal. 199) ..................................................................... 5, 6 Hoah, 820 F.Supp at 1236. ............................................................................................... 7 Joslin v. H.A.S. Insurance Brokerage, 184 Cal. App. 3rd 369, 374 (4th Dist. 1986) ......................................................... 3 Kashmiri v. Regents of Univ. of Cal., 156 Cal.App.4th 809, 829 (2007) .......................................................................... 5 Memorial Hospital System v. Northbrook Life Insurance Company, 904 F.2nd 236 (5th Circ. 1990) ............................................................................. 7 Pugh v. See's Candies, Inc., 116 Cal.App.3d 311, 329 (1981) ........................................................................... 4 Ristau v. Madhvani, 1991 WL 283666, at *3 (D.D.C. Dec. 20, 1991)................................................... 6 Rodas v. Spiegel, 87 Cal. App. 4th 513, 517 (2nd Dist. 2001) .......................................................... 3 San Joaquin General Hospital v. United Healthcare Insurance Co., 2017 WL 1093835, at *3(E.D. Cal. Mar. 23, 2017) .............................................. 6 22856 - iii- PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Schifando v. City of Los Angeles, 31 Cal. 4th 1074, 1081 (2003) ............................................................................... 3 Stevens v. Superior Court, 75 Cal. App. 4th 594, 601 (2nd Dist. 1999) .......................................................... 3 Sunset Drive Corp. v. City of Redlands, 73 Cal. App. 4th 215, 219 (4th Dist. 1999) ........................................................... 3 Weddington Productions, Inc. v. Flick, 60 Cal.App.4th 793, 811 (1998) ............................................................................ 5 Statutes Cal. Civ. Code § 1621 ................................................................................................ 3 Cal. Civ. Proc. Code § 452 ........................................................................................ 3 California Civil Code §§1549, 1150 .......................................................................... 5 Other Authorities Summary 11th Contracts § 102 (2017) ...................................................................... 4 22856 - 2 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND SUMMARY OF ARGUMENT Blue Cross of California doing business as Anthem Blue Cross (“Anthem”) and Canon U.S.A. (“Canon”)(collectively referred to as “Defendants”) demur to California Spine and Neurosurgery Institute’s (“California Spine”) first, second, and third causes of action in California Spine’s First Amended Complaint (“FAC”). For the reasons stated below, none of the supposed deficiencies with California Spine’s FAC withstands scrutiny. First, Defendants’ demurrer to the first and second cause of action for breach of implied-in-fact contract and breach of express contract fails on the basis that California Spine does not allege a promise by Defendants to pay Plaintiff’s full billed charges and Defendants have conducts that are sufficient to show both agreement on a material term and conducts sufficient of consent to enter into agreement with the Plaintiff. In addition, issue of whether the conduct of the parties pleaded in the facts of the FAC is sufficient to create an implied-in-fact contract or express contract is a question of fact and thus inappropriate for a demurrer. Second, Defendants’ demurrer to the third cause of action for quantum meruit fails on the grounds that California Spine has alleged sufficient facts to support the unjust enrichment of the Defendants to Plaintiff’s detriment. Therefore, California Spine requests that the Court overrule Defendants’ Demurrer to Plaintiff’s FAC. Alternatively, should the court sustain Defendants’ Demurrer to Plaintiff’s FAC, California Spine respectfully requests the court grant it leave to file a Second Amended Complaint. II. STANDARD OF REVIEW In determining whether a demurrer has merit, a complaint must be construed 22856 - 3 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "liberally . . . with a view to substantial justice between the parties." Cal. Civ. Proc. Code § 452; Stevens v. Superior Court, 75 Cal. App. 4th 594, 601 (2nd Dist. 1999). "A complaint is sufficient if it alleges facts which state a cause of action under any possible legal theory." Sunset Drive Corp. v. City of Redlands, 73 Cal. App. 4th 215, 219 (4th Dist. 1999). "In determining the merits of a demurrer, all material facts pleaded in the complaint and those that arise by reasonable implication, but not conclusions of fact or law, are deemed admitted by the demurring party." Rodas v. Spiegel, 87 Cal. App. 4 th 513, 517 (2 nd Dist. 2001) (emphasis added). "A demurrer is simply not the appropriate procedure for determining the truth of disputed facts." Joslin v. H.A.S. Insurance Brokerage, 184 Cal. App. 3 rd 369, 374 (4 th Dist. 1986) (emphasis added). "A demurrer tests the pleading alone, and not the evidence or the facts alleged." City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal.App.4th 445, 459 (1 st Dist. 1998) (emphasis added). For that reason, "courts must assume the truth of the complaint’s properly pleaded or implied factual allegations." Schifando v. City of Los Angeles, 31 Cal. 4 th 1074, 1081 (2003) (emphasis added). III. LEGAL ARGUMENT A. The FAC Pled Sufficient Facts to Allege Breach of Implied-in- Fact Contract and Breach of Express Contract Because Conduct of the Parties Demonstrates Consent and Existence of Terms to Enter Into A Contract Defendants’ argument posits Plaintiff’s first and second cause of action for breach of implied-in-fact contract and breach of express contract fail because “Plaintiff does not - and cannot - allege a promise to pay Plaintiff’s full billed 22856 - 4 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 charges.” (Demurrer to FAC 5:23-24). Defendants’ misapprehend the nature of implied-in-fact contracts and express contracts as well as the facts pled in the FAC. Based upon the totality of the circumstances of the parties’ interactions and conduct, the trier-of-fact here could find that an implied-in-fact contract and express contract existed on the terms Plaintiff alleged. The California Supreme Court held that the “totality of the circumstances" is key to the determination of whether an implied-in-fact contract or oral contract exists and on what terms. Foley v. Interactive Data Corp., 47 Cal.3d 654, 682 (1988). As to establishing a promise requisite of an express or implied contract, “‘oblique language will not, standing alone, be sufficient to establish agreement’; instead, the totality of the circumstances determines the nature of the contract. Agreement may be ‘shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances.’” Id. citing Pugh v. See's Candies, Inc., 116 Cal.App.3d 311, 329 (1981). Thus, following Foley, an implied-in-fact contract as well as an express contract is established by the totality of the circumstances, including conduct and oral representations. In the present case, the FAC sufficiently states a claim for breach of implied-in-fact contract and breach of express contract. The elements of a breach of contract cause of action are “the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant, and damages.” First Commercial Mortgage Co. v. Reece, 89 Cal.App.4th 731, 745 (2001); see also CDF Firefighters v. Maldonado, 158 Cal.App.4th 1226, 1239 (2008). “The distinction between express and implied in fact contracts relates only to the manifestation of assent; both types are based upon the expressed or apparent intention of the parties.” 1 B.E. Witkin, Summary 11 th Contracts § 102 (2017). “An implied contract is one, the existence and terms of which are manifested by conduct.” Cal. Civ. Code § 1621. 22856 - 5 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Plaintiff sought to correct its original Complaint and provide material facts in its FAC. Plaintiff corrected the original demanded amount to in accordance with new facts, that is, the representation made by Defendants’ representative that, “insurance responsibility for reimbursement would be at 60%.” (FAC ¶16). Defendants fail to acknowledge new facts alleged in FAC and incorrectly alleges that Plaintiff is seeking “full billed charges,” or 100% of its usual and customary charges from Defendants in the present case. (Demurrer to FAC 5:23-24). 1. Conducts of Defendants Support Consent to Enter Into a Contract Defendants allege, “Plaintiff is relying on its allegations that Anthem’s lack of representation - or silence - forms the basis for Plaintiff’s claims for both breach of implied-in-fact contract and express contract against Anthem.” (Demurer to FAC 6:23-25). Although a valid contract is formed where there is a mutual consent between two or more parties for consideration. (California Civil Code §§1549, 1150), “In California, a party’s intent to contract is judged objectively, by the party’s outward manifestation of consent.” Cedars Sinai Medical Center v. Mid-West Nat. Life Ins. Co., 118 F.Supp.2d 1002, 1008 (2002) citing Weddington Productions, Inc. v. Flick, 60 Cal.App.4th 793, 811 (1998). Again, whether the parties' conduct creates an implied contract-in-fact is a question of fact determined by looking at the totality of the circumstances.” Enloe Medical Center v. Principal Life Ins. Co., 2011 WL 6396517, at *5 (E.D. Cal. Dec. 20, 2011) citing Kashmiri v. Regents of Univ. of Cal., 156 Cal.App.4th 809, 829 (2007). The mutual intent to promise “may be inferred from the conduct, situation or mutual relation of the parties…” Friedman v. Friedman, 20 Cal.App.4th 876, 887 (1993). Moreover, in order to rebut the inference, the courts will consider whether “there is another explanation for the conduct.” Foley, supra, 47 Cal.3d at 677. In Hoag Memorial Hospital v. 22856 - 6 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Managed Care Administrators, 820 F.Supp. 1231 (C.D. Cal. 199), the court found that the defendant’s verification of benefits was a manifestation of consent. (Holding that “[i]insurance companies and plan administrators must recognize the implications of their unqualified verifications of coverage; [w]when they assure third-party health care providers that the plan will pay for the cost of the care and treatment provided, they are creating independent obligations to the plan.”) Id. at 1238-9. Furthermore, California courts also found “partial payment to be evidence that parties entered into an agreement.” San Joaquin General Hospital v. United Healthcare Insurance Co., 2017 WL 1093835, at *3(E.D. Cal. Mar. 23, 2017) citing Ristau v. Madhvani, 1991 WL 283666, at *3 (D.D.C. Dec. 20, 1991). The FAC alleges the following conducts by Defendants, which collectively manifest consent to the implied-in-fact contract and express contract: verifying eligibility of coverage by Anthem sponsored by Canon (FAC ¶15); affirmation that the health plan is responsible for 60% of California Spine’s usual and customary rate (FAC ¶16); and Anthem’s rendering of partial payment (FAC ¶20-21). Thus, looking at the conduct of the Defendants shows an outward manifestation of consent by Defendants to an implied-in-fact contract and express contract. 2. Agreement for Reimbursement Based on Plaintiff’s Usual and Customary Rate Supports Intent to Enter Into a Contact Defendants alleges, “Plaintiff’s claim for both breach of implied-in-fact and express contract fail, because Plaintiff does not establish the existence of a contract for reimbursement of the its full, billed charges - which it equates to UCR - or mutual consent to that reimbursement term.” (Demurrer to FAC 6-7: 28-2). Defendants continue, “Plaintiff here does not allege sufficient facts to show there was meeting of the minds as to the material term(s) of the alleged contract, in particular the amount to be reimbursed.” (Demurrer to FAC 9:4-5). 22856 - 7 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the reimbursement term agreement upon the parties was for 60% of the usual and customary rate. (FAC ¶16). This statement was affirmed by Anthem representative, on behalf of Defendants, during Plaintiff’s phone call for eligibility benefits. Id. When an insurance company verifies coverage to a health care provider, “it should realize that either it is consenting to the payment of plant benefits or it should ‘accept [the] consequences for false representation of coverage that the provider reasonably relied upon.’” Hoah, 820 F.Supp. at 1236 citing in part to Memorial Hospital System v. Northbrook Life Insurance Company, 904 F.2 nd 236 (5 th Circ. 1990)). Defendants seek to allege that Plaintiff’s claim fails because there was no meeting of the minds regarding the reimbursement amount. (Demurrer to FAC 8:6- 7). Defendants also exemplify “material term” as “specific rate” or “overall reimbursement amounts that Defendants would pay.” (Demurrer to FAC 10:3-4) The FAC does just that with the new facts that Defendants’ representative affirmed reimbursement at 60% of the usual and customary rate of the Plaintiff’s billed charges. Thus, Defendants’ affirmation that reimbursement to Plaintiff would be 60% of the usual and customary rate is sufficient for material term for the parties would have a meeting for the minds and for which an implied-in-fact contract and express contract may arise. Therefore, accordingly, Defendants’ demurrer to the causes of action for breach of implied-in-fact contract and express contract should be overruled. B. The FAC Pled Sufficient Facts to Allege Quantum Meruit Regarding Defendants’ Unjust Enrichment Defendants argue the FAC does not show Plaintiff is entitled to reimbursement beyond the plan and the FAC does not allege that Defendants 22856 - 8 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requested Plaintiff’s services or received a benefit from Plaintiff. (Demurrer to FAC 10:10-13). It is inaccurate for Defendants to state that they did not receive a benefit by Plaintiff’s rendering of medically necessary services to Patient R.C. The purpose of Canon sponsoring an Anthem health plan for Patient R.C. is to arrange for the provision and reimbursement of appropriate medical care for Patient R.C., a paying plan member. The FAC clearly alleged Patient R.C. as a member of the Anthem/Canon plan (FAC ¶11). In exchange for such payment of premiums, the health plan becomes obligated to accept, process, arrange for, and/or pay claims for the value of medical services rendered to the patient. Anthem and Canon impliedly accepted financial responsibility when it came together to create the plan. (FAC ¶13). When California Spine submitted its claim to Anthem, Anthem and Canon received full appreciation of the fact their plan beneficiary was served. (FAC ¶43). Without payment at or near the reasonable value of Plaintiff’s services, Anthem and Canon have retained a benefit. Id. In short, by providing medically necessary care to Patient R.C., Plaintiff necessarily conferred a benefit upon Anthem and Canon. Anthem and Canon delivered its promises made to its plan members to make healthcare available. Thus, Plaintiff has pled sufficient facts in its FAC to allege a quantum meruit cause of action regardless of what the plan’s limitations are. Thus, Defendants’ demurrer to this cause of action should be overruled. IV. CONCLUSION California Spine believes it sufficiently pled each and every cause of action found in its FAC. However, in the event the court holds otherwise, California Spine respectfully request the Court to grant it leave to amend. For the foregoing reasons, California Spine respectively requests 22856 - 9 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ demurrer be overruled. In the event the Court should choose to sustain any other portion of the demurrer, California Spine must ask in the alternative that it be given leave to amend these portions of its FAC to correct any insufficiencies. Dated: 28 May 2019 LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. /s/Geraldine S. Garcia GERALDINE S. GARCIA Attorneys for CALIFORNIA SPINE AND NEUROSURGERY INSTITUTE, a California for profit corporation - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF GERALDINE GARCIA I, GERALDINE GARCIA, declare: 1. I am an attorney licensed to practice in California and I associate with the law firm of the Law Offices of Stephenson, Acquisto, & Colman, counsel of record for plaintiff California Spine and Neurosurgery Institute (“California Spine”) in this case. I have personal knowledge of the facts stated in this declaration and if called to testify as a witness, I could and would completely testify thereto. I submit this declaration in support of Plaintiff’s Opposition to Defendant Anthem Blue Cross (“Blue Cross”) and Defendant Canon U.S.A. (“Canon”) Demurrer to Plaintiff’s First Amended Complaint (“FAC”) 2. I met and conferred with Nicole Medeiros, counsel of record of Defendant Blue Cross, regarding Blue Cross’ Demurrer. I advised that we would be opposing Blue Cross’ Demurrer to the FAC. 3. I met and conferred with Nicole Medeiros, counsel of record of Defendant Canon U.S.A., regarding Blue Cross’ Demurrer. I advised that we would be opposing Blue Cross’ Demurrer to the FAC. 4. At this time, we are unable to resolve any part of this case. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 28 th day of May, in Burbank, California. GERALDINE GARCIA p o s o p - 1 C O M P L A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 303 North Glenoaks Boulevard, Suite 700, Burbank, California 91502-3226. On 28 May 2019, I served the foregoing document(s) entitled: PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope addressed per the attached Service List. [ ] BY U.S. MAIL: 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 United States Postal Service on that same day with postage thereon fully prepaid at Burbank, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [C.C.P. 1013a(3); F.R.C.P. 5(b)] [X ] BY FEDERAL EXPRESS: I caused such envelope(s), with overnight Federal Express Delivery Charges to be paid by this firm, to be deposited with the Federal Express Corporation at a regularly maintained facility on the aforementioned date. [C.C.P. 1013(c) 1013(d)] [ ] BY PERSONAL SERVICE: I caused the above-stated document(s) to be served by personally delivering a true copy thereof to the individuals identified above. [C.C.P. 1011(a); F.R.C.P. 5(b)] [ ] BY EXPRESS MAIL: I caused such envelope(s), with postage thereon fully prepaid and addressed to the party(s) shown above, to be deposited in a facility operated by the U.S. Postal Service and regularly maintained for the receipt of Express Mail on the aforementioned date. [C.C.P. 1013(c)] [ ] BY TELECOPIER: Service was effected on all parties at approximately ___:____ am/pm by transmitting said document(s) from this firm's facsimile machine (818/559-4477) to the facsimile machine number(s) shown above. Transmission to said numbers was successful as evidenced by a Transmission Report produced by the machine indicating the documents had OOOQQUIAUJNt-K NNNNNNNNNb-tr-Ir-tr-tr-H-twp-H WQCNUI-PWNHOOOOQQM-hWNI-‘O been transmitted completely and Without error. C.R.C. 2008(6), Cal. CiV. Proc. Code § 1013(e). [X] BY ELECTRONIC SERVICE: By emailing true and correct copies to the persons at the electronic notification address(es) shown 0n the accompanying service list. The document(s) waS/were served electronically and the transmission was reported as complete and Without error. [ X ] State: I declare under penalty 0f perjury under the laws 0f the State 0f California that the above is true and correct. Executed on 28 May 2019 in Burbank, California.W LORENA éENCOMO lbencomo sacfirm.com SERVICE LIST Kenneth N Smersfelt, Esq. ksmersfelt®reedsmith£om Karen A Braje, Esq. kbraje@reedsmith.com Nicole Medeiros, Esq. nmedeiros@reedsmith.com Reed Smith LLP 355 South Grand Street, Suite 2900 Los Angeles, CA 90071-3659