Opposition To Demurrer

Opposition

Cal. Super. - 6th Dist.October 10, 2018

© 00 9 ON Un BA W N ND ND N N N N N N ND E E EE Em em em el em co JN ON Wn BA W N = © OO 0 NN ON BA W N = O LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. JOY STEPHENSON-LAWS, ESQ. RICHARD A. LOVICH, ESQ. KARLENE ROGERS-ABERMAN, ESQ. DAVID F. MASTAN, ESQ. GERALDINE S. GARCIA, ESQ. 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, Vv. BLUE CROSS OF CALIFORNIA doing business as ANTHEM BLUE CROSS, a California for profit corporation; FLEXTRONICS INTERNATIONAL USA, INC,, a California for profit corporation; and DOES 1 THROUGH 25, inclusive, Defendants. (SBN 113755) (SBN 113472) (SBN 237883) (SBN 152109) (SBN 319561) Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/7/2019 2:50 PM Reviewed By: S. Vera Case #18CV336117 Envelope: 2600209 Case No.: 18CV336117 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER Hearing on Demurrer Date: March 21, 2019 Time: 9:00 a.m. Dept.: 8 Judge: Hon. Sunil Kulkarni Complaint Filed: October 10, 2018 Trial: No date set 22861 a PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 0 J O N Wn BA W N ND N N N N N ND N N = m mm e m e m e m e m e m e m C O NN O N Ln BA A W I N D = O O 0 0 N O D B R E W I N = O TABLE OF CONTENTS Page TADLE OF CONLENLS eee ieee eee eee eee ee eee eee eee ee ee eee eee eee e eee e ee ea ease anaes eeaa ee aeaeeeennns 1 TADIE Of AULNOTILIES «eee ee eee eee eee eee eee eee eee eee aeee eee e ee eaee ee eaee ee eee ee enanns 11-111 I. INTRODUCTION AND SUMMARY OF ARGUMENT ....cooveeeeeeeeiinnn, 2 11. FACTUAL BACKGROUND ....eeeee eee eee eee eee eee eeee ee ee eeee aaa 3 III. STANDARD OF REVIEW... coisas eee eee eee eeeeee ee eeaaeaae ee aaaes 4 IV. LEGAL ARGUMENT ....ooeoeeeeeeeeeeeeeee ee eee ee eee eee e e ee e aaetee ee a aaeaae e aaaes 5 A. The Complaint Alleges Sufficient Facts to Allege the Existence of an Implied-tn-Fagt Conran : sss sm sms ms mms ous smn sms sss sw news 5 I. There are Facts Supporting Consent to Contract & Facts Supporting Reimbursement of the Usual and Customary Rate.6 B. The Complaint Alleges Sufficient Facts in the Cause of Action for Breach of EXpress CONtract ..........eoeeeeeeeiieeriieeeniiie erica 8 C. The Complaint Alleges Sufficient Facts in the Cause of Action for QUANTUI METUTE «ove eee eee eee eee eee ae ae eee eens eenannes 8 D. Plaintiff’s Claims are Not Fatally Uncertain for Alleging Defendants COLLECTIVELY eevee eit eaae eee 10 VV. CONCLUSION ....ooiiiiiitiieeeetet esters sees esses sees 11 22861 -i- ~~ PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 0 J O N Wn BA W N ND N N N N N ND N N = m mm e m e m e m e m e m e m C O NN O N Ln BA A W I N D = O O 0 0 N O D B R E W I N = O TABLE OF AUTHORITIES Page(s) Cases Cedars Sinai Med. Ctr. v. Mid-W. Nat. Life Ins. Co., 118 F.Supp.2d 1002,1013 (C.D. Cal. 2000) .......ceerreeenreerreerrieeieeeiieeveeeseveeenens 9 City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal. App.4th 445, 459 (1st Dist. 1998)......ccecveriieiiiiiiiecieesie cece ens 5,11 Gressley v. Williams, 193 Cal. App.2d 636, 643-644 (1961) ..cccueiiciiieiiieiieeieieiee cece ee e e e s 10 Haggerty v. Warner, 115 Cal. App.2d 468,475; 252 P.2d 373 (1953) ..eeeieeeiieiieeiieeie ee ee eee 9 Joslin v. H.A.S. Insurance Brokerage, 184 Cal. App. 3rd 369, 374 (4th Dist. 1986) ......ccccueeriiieniieeiieeieeeiee c ce 5 Khoury v. Maly's of Calif. Inc., 14: Cal Appin GlL2, GIG 1993) sons ssw samensames aammntsmonsmes samosas esos: wns 10 Kraner v. Halsey, 82 Cal. 209, 213 (1889)... icici eee sees aaa 10 Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011) cue eee ee eee 6 Orthopedic Specialists of Southern California v. Public Employees’ Retirement System, 228 Cal. APP.4th 644 (2014) c..eeeieeie eee sre ens 7 San Joaquin General Hospital, 2017 WL 1093835 at *2 (E.D. Cal. March 23, 2017) cccccoovueeieieeeeieeeeiiieieeeeeeee 6 Schifando v. City of Los Angeles, 31 Cal. 4th 1074, TO8T (2003) ...uveeeieiieieee ieee eee eee eee eases ee eee 5 Stevens v. Superior Court, 73 Cal. App. 4th 394, 601 (2nd Dist. 1999) ci cass isssnsssuns sammnsasuns sins ssmssssuss sens sss 4 Sunset Drive Corp. v. City of Redlands, 73 Cal. App. 4th 215, 219 (4th Dist. 1999) ....cccovviiiiiiniiiiieeeeee eee 4 Tenet Health system Desert, Inc. v. Fortis Ins. Co., Inc., 520 F.Supp.2d 1184 (2007) .eeeuveeeieeeieeeiieeeeeeiie stes eiie e vee sit est see esse enna eens 6,7 Weitzenkorn v. Lesser, 40 Cal.2d 778, 794; 256 P.2d 947 (1953) ...ccoieeeeeeeeeee e e 6 22861 -i- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 0 J O N Wn BA W N ND N N N N N N N ND F E E EE Em Em em e e e m c o NN O N Ln BA A W N = © 0 0 N O N B E W N D = OO Statutes Cal. Civ. Proc. Code § 430.1008) ...uuuieieeeeeieiiiiiieee c ce cc ntrics eeeeerrrar area ase s en 5 Cal. Civ. Proc. Code § 430.100) .uvviriiiieeeiiiieieeeee cece 5 Cal. (Civ Proc. A008. §r 2h 5 arms mss sass smn msm 5m S055. 560505 S855 5500 525005 $5554 4 22861 - iii- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O INTRODUCTION AND SUMMARY OF ARGUMENT California Spine and Neurosurgery Institute (“California Spine”) brought this action for an easily understood reason: it wants to be fully paid for the medical care it rendered. However, Defendants Blue Cross of California dba Anthem Blue Cross (“Blue Cross”) and Flextronics International USA, Inc. (Flex) have underpaid the costs of medical services provided to a patient who is a beneficiary of their health plan. California Spine sufficiently pled the requisite elements for three (3) causes of action: breach of implied-in-fact contract, breach of express contract, and quantum meruit. Blue Cross and Flex (collectively known as “Defendants™) responded by filing a demurrer to the Complaint. Defendants contend that the three causes of action asserted in Plaintiff’s Complaint fail for the following reasons: (1) As to the first and second causes of action for breach of implied-in-fact contract and breach of express contract, the plaintiff does not - and cannot - allege a promise to pay plaintiff's full billed charges. (Demurrer 5:14-16). (2) As to the quantum meruit cause of action, plaintiff is not entitled to reimbursement beyond the plan and the Complaint does not allege that [Blue Cross] requested plaintiff’s services or received a benefit from -plaintiff. (Demurrer 9:17-20). Contrary to Defendants’ contentions California Spine properly and sufficiently alleged facts comprising the elements of each cause of action, and thus claims have been properly stated for breach of implied-in-fact contract, breach of express contract, and quantum meruit against Defendants. Also, at the pleading stage, the Complaint pleaded sufficient facts against each of the named defendants. Moreover, the Complaint is not uncertain because it pleaded sufficient facts to put both Blue Cross and Flex on notice of the issues raised by California Spine. 22861 - 2 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O Therefore, California Spine respectfully requests that the court overrule Defendants’ Demurrer. Alternatively, should the court sustain Defendants’ Demurrer, California Spine respectfully requests the court grant it leave to file a First Amended Complaint. IL. FACTUAL BACKGROUND This is an action for payment of amounts due and owing to California Spine in connection with medically necessary care rendered to Patient L.M.D., whose health insurance benefits were sponsored or administered by Defendants. Compl. q 11. At all relevant times, each of the defendants, including the defendants named “Doe” were and are the agent, employee, employer, joint venture, representative, alter ego, subsidiary, [or] partner of one or more of the other defendants ...” Compl. {7. On July 21, 2018, California Spine provided minimally invasive neurospine surgical treatment to Patient L.M.D. Compl. | 16. On or about June 22, 2018, Patient L.M.D. sought initial consultation for the purpose of seeking future treatment from California Spine and, as is custom and practice in the health care industry, Blue Cross verified that Patient L.M.D. was enrolled in a health plan sponsored by Defendants. Compl. { 13-14. Further, California Spine alleges that it was informed that under the terms of Patient L.M.D.’s health plan, no pre-authorization was required for an outpatient procedure such as the surgery received by Patient L.M.D. Compl. 15. By such conduct, an implied-in-fact contract and express contract was formed and it was understood between California Spine and Defendants that, in exchange for California Spine providing medically necessary care to Patients, Defendants would pay California Spine the reasonable value, which California Spine alleges is its usual and customary billed charges. Compl. { 17. Also, because Defendants, through its agents, not only confirmed coverage under the health plan, but also 22861 - 3 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O informed California Spine that pre-authorization was not required for outpatient surgery, a contract was formed. Compl. q 13-15. Such conduct is as good as an implied or express request by Defendants to confer the benefit of treatment provided by California Spine to Patient L.M.D. Id. California Spine and Defendants do not have a written agreement providing discounted reimbursement rates for healthcare services rendered to members of Defendants’ health plan. As such, California Spine timely and properly billed Blue Cross its usual and customary charges for the medically necessary services provided to Patient L.M.D. In California Spine providing medically necessary services to Patient L.M.D., Defendants’ beneficiary, a benefit was conferred upon Defendants because it allowed Defendants to make good on promises made to its members. California Spine’s usual and customary charges for medical necessary services, supplies and/or equipment rendered to Patient L.M.D. amounted to total charges of $91,500. Compl. | 17. Defendants paid only a fraction of the amount due to California Spine, and failed and refused to pay over $89,000 in for medical services rendered. Compl. 17-19. In order to recover the unpaid balance, California Spine filed a Complaint for damages against Defendants. IIL. STANDARD OF REVIEW In determining whether a demurrer has merit, a complaint must be construed "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). 22861 -4 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O "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" 369, 374 (4™ 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* 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™ 1074, 1081 (2003) (emphasis added). Defendants based its demurrer upon Cal. Civ. Proc. Code § 430.10(e); i.e., California Spine allegedly "fail[ed] to state facts sufficient to constitute a cause of action;" and Cal. Civ. Proc. Code § 430.10(f); i.e., California Spine’s “entire Complaint is uncertain, ambiguous, and unintelligible.” (Notice to Demurrer 1:19- 21). However, only by misleading the Court and misconstruing the nature of California Spine’s allegations do Defendants arrive at such unsupported conclusions. IV. LEGAL ARGUMENT A. The Complaint Alleges Sufficient Facts to Allege the Existence of an Implied-in-Fact Contract Defendants filed their Demurrer for both breach of implied-in-fact and express contract on the grounds that Plaintiff does not establish the existence of a contract for reimbursement of its full, billed charges or mutual consent to that reimbursement term. (Demurrer 6:16-17). California Spine properly pled its facts with sufficient basis to establish formation and breach of contract to be explained below. 22861 -5- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O California law recognizes, “contracts are implied in fact where the parties’ evidence an intention to create a binding contract. Weitzenkorn v. Lesser, 40 Cal.2d 778, 794, 256 P.2d 947 (1953).” In California, the elements for breach of contract are “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” San Joaquin General Hospital, 2017 WL 1093835 at *2 (E.D. Cal. March 23, 2017) citing Oasis W. Realty, LLC v. Goldman, 51 Cal. 4™ 811, 821 (2011). The elements of a cause of action for breach of implied-in-fact contract are essentially the same as those for breach of an express contract except there must be allegations of the conduct that formed the basis of the implied-in-fact contract. Weitzenkorn v. Lesser, supra, 40 Cal.2d at 794. Here, California Spine, by its Complaint, plainly alleges that the implied agreement was created when California Spine telephoned Blue Cross to verify Patient L.M.D.’s medical eligibility benefits, the Blue Cross representative expressly or impliedly assured California Spine that Defendants carried the financial responsibility to pay for Patient L.M.D.’s anticipated medical care at the reasonable and customary value for such care, and that no pre-authorization was required for an outpatient procedure such as the surgery received by Patient L.M.D. Compl. {13-15. 1. There are Facts Supporting Consent to Contract & Facts Supporting Reimbursement of the Usual and Customary Rate Defendants, in their contention that a benefit verification phone call does not amount to consent to enter a contract was made in reliance on Tenet Health system Desert, Inc. v. Fortis Ins. Co., Inc. 520 F.Supp.2d 1184 (2007). However, Tenet is distinguishable from this case because the insured patient was insured by defendants under a medical policy that explicitly stated that the policy did not Ce cover the “medical advice, diagnosis, treatment or services’ received by the insured within the six month period prior to the [p]olicy’s effective date.” Tenet at 22861 - 6 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O 1190 (2007). Moreover, the medical provider in Tenet attempted its verification of eligibility through multiple phone calls and believed that through these phone calls for verification of benefits, that pre-authorization was supported with the reference numbers for the phone calls. Id. at 1189. In this instant case, far more than mere “verification” occurred on the claim and Defendants’ actions demonstrated that an agreement was formed: California Spine verified Patient L.M.D.’s eligibility in its phone call to Blue Cross on June 22,2018. Communicated in the phone call by Blue Cross’ client services representative, “May J.,” was the assurance that California Spine would be reimbursed its usual and customary rate. Compl. {13-14. In addition, in the same day of the phone call, California Spine was assured that Defendants carried the financial responsibility to pay for Patient L.M.D.’s anticipated medical care and that such care had no pre-authorization required because it was an outpatient procedure. Compl. 13, 15. Defendants also contended that “authorization is not ‘an agreement to pay or guarantee to pay for medical services provided to an insured’.” (Demurrer 7:3-4). Defendants’ contention relied on Tenet and Orthopedic Specialists of Southern California v. Public Employees’ Retirement System 228 Cal. App.4th 644 (2014). Orthopedic Specialists, like Tenet, is also distinguishable because the oral promise for payment was asserted against a government agency. Id. at 649. Defendant Blue Cross 1s a for profit corporation and Defendant Flex is also a for profit corporation. Compl. | 2-3. These classifications have been left undisputed by Defendants and thus, neither defendant has claims to be a government agency. In Orthopedic Specialists, the court states that it did not reach the issue as to whether an oral promise was created under the circumstances because of the strong interest to protect the public entity. Id. In this case, California Spine asserts the assurances made over the phone with Blue Cross’ client services representative that California Spine would be paid its usual and customary rate. Compl. 13. Thus, California 22861 -’/ - PLAINTIFF’S MEMORANDUM OF POINTS| AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O Spine alleges this assurance against two non-government agencies. Thus, the considerations that were at play in Orthopedic Specialists are not at play here. California Spine pled that “based upon existence of an identification card issued by Blue Cross and Flex, the telephone call with Blue Cross, and the indication that pre-authorization was not required ... on behalf of Blue Cross [or] Flex, and the express [or] implied resultant assurances that California [Spine] would be paid the reasonable and customary value of its medical services,” California Spine provided medically necessary and minimally invasive spine surgery on Patient L.M.D. Compl. {16. In other words, as California Spine pled, Defendants made an implied request for the services rendered. Id. As such, a reasonable and logical inference may be drawn from the totality of circumstances that were mutual intent to comply with the implied contract between the parties. Accordingly, California Spine properly stated a cause of action for breach of implied-in-fact contract. B. The Complaint Alleges Sufficient Facts in the Cause of Action for Breach of Express Contract Should the court find that California Spine has sufficiently stated a claim for breach of implied-in-fact contract, it should also find that California Spine has sufficiently stated a claim for breach of express contract because it involves in the same alleged communications and same alleged consideration. C. The Complaint Alleges Sufficient Facts in the Cause of Action for Quantum Meruit Defendants argue that the Complaint failed because Plaintiff is not entitled to reimbursement beyond the plan and that the Complaint does not allege that Blue Cross requested Plaintiff’s services or received a benefit from Plaintiff. 22861 - 8 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O The elements of a claim based on quantum meruit are: “(1) that the plaintiff performed certain services for the defendant, (2) their reasonable value of the services, (3) that they were rendered as defendant’s request, and (4) that they are unpaid.” Cedars Sinai Med. Ctr. v. Mid-W. Nat. Life Ins. Co., 118 F.Supp.2d 1002, 1013 (C.D. Cal. 2000) (citing Haggerty v. Warner, 115 Cal.App.2d 468, 475; 252 P.2d 373 (1953)). As illustrated below, the Complaint did plead facts alleging that Defendants requested services to be rendered to Patient L.M.D.: eo The claim at issue here is for Patient L.M.D., who 1s a member of a health plan sponsored, administered and/or financed by Defendants. Compl. 11. e California Spine alleged that it timely and properly submitted a bill in the amount of $91,500 to Blue Cross for medical services rendered to Patient L.M.D. Compl. |17. e California Spine obtained verification and the indication that pre- authorization was not required for an outpatient procedure from Defendants for the medically necessary treatment of Patient L.M.D. (Compl. 13, {15); by its words and/or conduct, Defendants requested that California Spine provide medically necessary services, supplies and/or equipment. Compl. 13-18. e Acting pursuant to Defendants’ implied and/or express request, California Spine rendering of medically necessary services, supplies and/or equipment to Patient L.M.D. was intended to and benefited Patient L.M.D. and therefore benefited Defendants. Compl. 16, {18 and q 38-39. e The balance of $89,825.53 continues to be left unpaid by Defendants. Compl. 18-19. 22861 -9 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O Accordingly, the Complaint satisfied the “request” prong under the quantum meruit and Defendants’ Demurrer should be overruled. D. Plaintiff’s Claims are Not Fatally Uncertain for Alleging Defendants Collectively The complaint alleges sufficient facts to inform Blue Cross and Flex of the basis of California Spine’s relief sought. However, Blue Cross and Flex contend that California Spine’s allegations are fatally uncertain because Blue Cross and Flex are collectively referred to as Defendants throughout the Complaint. (Demurrer 11: 17-18). “All that is required of a complaint, even as against a special demurrer, is that it set forth the essential facts of plaintiff's case with reasonable precision and with particularity sufficiently specific to acquaint defendant of the nature, source, and extent of the cause of action.” Gressley v. Williams, 193 Cal.App.2d 636, 643-644 (1961); see also Kraner v. Halsey, 82 Cal. 209, 213 (1889) [“a demurrer on the ground of ambiguity should be overruled, if enough appear to render the pleading demurred too easy of comprehension and free from reasonable doubt™].) Furthermore, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif. Inc., 14 Cal. App.4th 612, 616(1993). Interestingly, this may very well be a case of the pot calling the kettle black. Here, Blue Cross and Flex are represented jointly and prepare and submit their Demurrer. The Demurrer is written in such a way that it is unclear which of the named defendants is making the contentions. In addition, the Complaint alleges that each of the defendants, including defendants named “Doe” were and are the 22861 - 10 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 O N Un BA W N NN N N ND N N ND N N mm e m p m p m p m p m p m e m e m c o J O N Ln BA W N = © 0 0 NN O N PBN N W D = O agent, employee, employer, joint venture, representative, alter ego, subsidiary, and/or partner of one or more of the other defendants. Compl. {[7. A demurrer tests the pleading along, and not the evidence or the facts alleged. City of Atascadero, supra 68 Cal. App.4th at 459. Thus, at this demurrer stage, contending that the allegations are not sufficient enough to apprise each defendant of the issues is an improper basis to challenge the Complaint. As discussed above, Blue Cross and Flex’s joint demurrer has plead sufficient facts to plausibly allege breach of implied-in-fact contract, breach of express contract, and quantum meruit causes of action against both Defendants, Blue Cross and Flex; and thus, is not uncertain. V. CONCLUSION It is clear from the foregoing that California Spine relied to its detriment, the conduct, words, and actions of the defendants. For all the above-stated reasons, California Spine requests that Blue Cross and Flex’s Demurrer be overruled. If for some reason the Court were to sustain Blue Cross and Flex’s Demurrer in any way, California Spine respectfully requests it be given leave to amend. 22861 -11 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER © 00 9 ON Un BA W N DN DN NN NN NN NY NY No No p- p- p- p- p- p- p- p- p- p- co J ON Ln BA W N = © 0 0 NN ON PB NN W D = O Dated: 7 March 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 22861 - 12 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER NO 0 9 O N Un D W N N N N DN N N N N N = em m m e m e d p m em e m pe 0 N N BR W N = O VO N N N D R A W N eR DECLARATION OF GERALDINE GARCIA I, GERALDINE GARCIA, declare: 1. Tam 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 Plaintiffs Opposition to Defendant Anthem Blue Cross (“Blue Cross”) and Defendant Flextronics International U.S.A., Inc. (“Flex”) Demurrer to the Complaint of Plaintiff California Spine (“Opposition”). 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. 3 I met and conferred with Nicole Medeiros, counsel of record of Defendant Flex regarding Blue Cross’ Demurrer. I advised that we would be opposing Blue Cross’ Demurrer. 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 7% day of March, in San Diego, California. ] GERALDINE GARCIA i © 0 J O N Wn BA W N ND N N N N N ND N N = m mm e m e m e m e m e m e m C O NN O N Ln BA A W I N D = O O 0 0 N O D B R E W I N = O 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 7 March 2019, I served the foregoing document(s) entitled: PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER by placing a true copy thereof enclosed in a sealed envelope addressed per the attached Service List. [] [X] [] [] [] 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)] 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 © 0 J O N Wn BA W N ND N N N N N ND N N = m mm e m e m e m e m e m e m C O NN O N Ln BA A W I N D = O O 0 0 N O D B R E W I N = O been transmitted completely and without error. C.R.C. 2008(e), 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 on 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 of perjury under the laws of the State of California that the above is true and correct. Executed on 7 March 2019 in Burbank, California. (CL LORENA BENCOMO Ibencomo @sacfirm.com SERVICE LIST Kenneth N Smersfelt, Esq. ksmersfelt@reedsmith.com 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