Opposition ObjectionsCal. Super. - 6th Dist.October 19, 2018 22862 - 1 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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. AETNA, INC., A Pennsylvania Corporation, AETNA LIFE INSURANCE COMPANY, A Connecticut Corporation, and SAP AMERICAN, INC., A Delaware Corporation; and DOES 1 THROUGH 25, inclusive, Defendants. Case No.: 18CV336774 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER Hearing on Demurrer Date: April 30, 2019 Time: 9:00 a.m. Dept.: 2 Judge: Hon. Mark H. Pierce Complaint Filed: October 19, 2018 Trial: No date set Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/16/2019 4:41 PM Reviewed By: K. Nguyen Case #18CV336774 Envelope: 2767882 18CV336774 Santa Clara - Civil K. Nguyen 22862 - i- PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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. FACTUAL BACKGROUND ........................................................................ 3 III. STANDARD OF REVIEW ............................................................................ 5 IV. LEGAL ARGUMENT ................................................................................... 7 A. The Complaint Alleges Sufficient Facts to Allege the Existence of an Implied-in-Fact Contract. ..................................................................... 7 B. The Complaint Alleges Sufficient Facts in the Cause of Action for Breach of Express Contract ................................................................ 11 C. The Complaint Alleges Sufficient Facts in the Cause of Action for Quantum Meruit. ................................................................................ 11 10 V. CONCLUSION ............................................................................................ 13 22862 - ii- PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 Barlow Respiratory Hospital v. CareFirst of Maryland, Inc., 2014 WL 12573394 ............................................................................................. 10 Cedars Sinai Med. Ctr. v. Mid-W. Nat. Life Ins. Co., 118 F.Supp.2d 1002 (C.D. Cal. 2000) ............................................................. 8, 11 City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal.App.4th 445 (1st Dist. 1998) ...................................................................... 6 Enloe Medical Center v. Principal Life Ins. Co., 2011 WL 6396517……………………………………………………………….8 Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988)…………………………………………………………....9 Friedman v. Friedman, 20 Cal.App.4th 876 (1993)……………………………………………………....8 Gregory v. Albertson's, Inc., 104 Cal.App.4th 845, 850 (2002)……………………………………………….6 Haggerty v. Warner, 115 Cal.App.2d 468; 252 P.2d 373 (1953) .......................................................... 12 Hoag Memorial Hospital v. Managed Care Administrators, 820 F.Supp. 1232 (C.D.Cal 1993)……………………………………………9,10 Joslin v. H.A.S. Insurance Brokerage, 184 Cal. App. 3rd 369 (4th Dist. 1986) ................................................................. 6 Kashmiri v. Regents of Univ. of Cal., 156 Cal.App.4th 809 (2007)……………………………………………………..8 Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811 (2011) ........................................................................................... 8 Ristau v. Madhvani, 1991 WL 283666………………………………………………………………...8 San Joaquin General Hospital, 2017 WL 1093835 (E.D. Cal. March 23, 2017) .................................................... 8 Schifando v. City of Los Angeles, 31 Cal. 4th 1074 (2003) ......................................................................................... 6 Stevens v. Superior Court, 75 Cal. App. 4th 594 (2nd Dist. 1999) .................................................................. 5 Sunset Drive Corp. v. City of Redlands, 73 Cal. App. 4th 215 (4th Dist. 1999) ................................................................... 6 22862 - iii- PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 Weddington Productions, Inc. v. Flick, 60 Cal.App.4 th 793 (1998)……………………………………………………….8 Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947 (1953) ................................................................... 7,8 Statutes Cal. Civ. Proc. Code § 430.10(e) ............................................................................... 6 Cal. Civ. Proc. Code § 430.10(f) ............................................................................... 7 Cal. Civ. Proc. Code § 452 ........................................................................................ 5 22862 - 2 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 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 Aetna, Inc. and Aetna Life Insurance Company (collectively as “Aetna”) and Defendant SAP America, Inc. (“SAP”) have underpaid the costs of medical services provided to patients who are beneficiaries 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. Aetna and SAP (collectively known as “Defendants”) responded by filing Defendant’s Demurrer to Plaintiff’s Complaint (“Defs’ Demurrer”) and Defendants’ Memorandum of Points and Authorities in Support of Demurrer to Plaintiff’s Complaint (“Defs’ Memo”). Defendants contend that the three causes of action asserted in Plaintiff’s Complaint fail for the following reasons: (1) As to Plaintiff’s breach of implied-in- fact contract cause of action, Plaintiff does not allege sufficient facts demonstrating an actual agreement between the parties, and the Complaint is uncertain because Plaintiff does not attached relevant portions of the contract from the EOC. (Defs’ Memo 6:1-3). (2) As to Plaintiff’s breach of express contract cause of action, for the same reasons the implied-in-fact claim is deficient. (Defs’ Memo 8:8-9). (3) As 22862 - 3 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 to Plaintiff’s quantum meruit cause of action, Plaintiff is not entitled to payment beyond that which is stated in the EOC, nor can Plaintiff allege that Aetna requested services or received a benefit from Plaintiff. (Defs’ Memo 9:24-26). 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 Aetna and SAP on notice of the issues raised by California Spine. 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. II. 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 R.C. and Patient J.P. whose health insurance benefits were sponsored or administered by Defendants. Compl. ¶ 11. At all relevant times, each of the defendants, including the defendants named “Doe” were and are the agent, employee, employer, joint 22862 - 4 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 venture, representative, alter ego, subsidiary, [or] partner of one or more of the other defendants ...” Compl. ¶ 7. California Spine performed respective orthopedic spine surgeries on Patient R.C. on August 8, 2017 and on patient J.P. on May 25, 2017. Compl. ¶ 17, 22. As is custom and practice in the health care industry, around the time Patient R.C. and Patient J.P. sought their initial consultations for the purpose of seeking future treatment from California, California Spine verified with Aetna that patient R.C. and Patient J.P. were enrolled in a health plan sponsored by Defendants. Compl. ¶9-11, 14. Further, California Spine alleges that it was informed that under the terms of Patient R.C. and Patient J.P.’s health plans, no pre-authorization was required for an outpatient procedure such as the surgery received by Patient R.C. and Patient J.P. Compl. ¶16, 21. By such, 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 R.C. and J.P., Defendants would pay California Spine a reasonable value, which California Spine alleges is at least 80% of its usual and customary billed charges. Compl. ¶15, 18, 23. Also, because Defendants, through its agents, not only confirmed coverage under the health plan, but also informed California Spine that pre-authorization was not required for outpatient surgery, a contract was formed. Compl. ¶16, 21. Such conduct is as good as an implied or express request by Defendants to confer the benefit of treatment provided by California Spine to 22862 - 5 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 Patients R.C. and J.P. 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. ¶9. As such, California Spine timely and properly billed Aetna its usual and customary charges for the medically necessary services provided to Patient R.C. and Patient J.P. ¶18, 23. In California Spine providing medically necessary services to Patient R.C. and Patient J.P., Defendants’ beneficiaries, a benefit was conferred upon Defendants because it allowed Defendants to make good on promises made to its members. ¶50. California Spine’s usual and customary charges for medical necessary services, supplies and/or equipment rendered to Patients R.C. and J.P. amounted to total charges of $208,500. Compl. ¶33. Defendants paid only a fraction of the amount due to California Spine, and failed and refused to pay its obligation of 80% of the usual and customary rate, leaving over $116,000 unpaid for medical services rendered. Compl. ¶25. In order to recover the unpaid balance, California Spine filed a Complaint for damages against Defendants. III. 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. 22862 - 6 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 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). "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). For that reason, “[t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. ... [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” Gregory v. Albertson's, Inc., 104 Cal.App.4th 845, 850 (2002). Defendants based its demurrer upon Cal. Civ. Proc. Code § 430.10(e); i.e., 22862 - 7 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 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 “complaint fails for uncertainty, insufficient facts, and is contrary to the law.” (Defs’ Memo 3:17). 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 to implied-in-fact contract cause of action stating the “complaint does not state that Aetna agree to pay a specific payment rate, nor that there was meeting of the minds as to the amount Plaintiff would be paid.” (Defs. Memo: 6:28, 7:1-2). Although California Spine did not plead a “specific payment rate,” California Spine properly pled its facts with sufficient basis to establish formation and breach of contract to be explained below. 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 22862 - 8 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 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 th 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. Also, “[i]n 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.4 th 793, 811 (1998). For example, California courts also found “partial payment to be evidence that parties entered into an agreement.” San Joaquin General Hospital, supra, 2017 WL 1093835 at *3 citing Ristau v. Madhvani, 1991 WL 283666, at *3. Moreover, 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, 67 Cal.Rptr.3d 635 (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). And in order to rebut the inference, the courts will consider whether “there is another explanation for the conduct.” Foley v. 22862 - 9 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 Interactive Data Corp., 47 Cal. 3d 654, 677, 765 P.2d 373, 385 (1988). Here, California Spine, by its Complaint, plainly alleges that the implied agreement was created when California Spine telephoned Aetna to verify Patient R.C. and Patient J.P.’s medical eligibility benefits, the Aetna representative assured California Spine that Defendants carried the financial responsibility to pay for Patient R.C. and J.P.’s anticipated medical care at 80% of its usual and customary value for such care, and that no pre-authorization was required for an outpatient procedure such as the surgery received by Patient R.C. and Patient J.P. Compl. ¶14, 16, 21. Prior to treatment rendered by California Spine to Patients R.C. and J.P, through custom and practice, California Spine and Defendants had an implied agreement and understood that California Spine would render medically necessary services to Defendants’ health plan beneficiaries, submit bills for such services to Defendants, and that Defendants would pay California Spine 80% of the usual and customary value for the medically necessary services rendered to Patients R.C. and J.P. Compl. ¶15-23. "Insurance companies and the plan administrators must recognize the implications of their unqualified verifications of coverage; [w]hen 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." Hoag Memorial Hospital v. Managed Care Administrators, 820 F.Supp. 1232, 1238-9 (C.D.Cal 1993). Thus, in California Spine’s telephone call to Aetna for 22862 - 10 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 verification of coverage, Aetna’s representation that the beneficiaries had benefits under the plan and that outpatient procedures did not require authorization, the Defendants created an implied-in-fact contract that obligated them to reimburse California Spine. Moreover, there are a number of case laws that support that the facts alleged in this case confirm an existence of an implied-in-fact contract. In Hoag, the court found that it is custom and practice in the healthcare industry that when an insurance company verifies coverage to a health care provider, "it should realize that either it is consenting to the payment of plan benefits or it should 'accept [the] consequences for a false representation of coverage that the provider reasonably relied upon.'" Hoag, supra, 820 F.Supp. at 1236 (citing in part to Memorial Hospital System v. Northbrook Life Insurance Company, 904 F.2nd 236 (5th Cir. 1990)). In Barlow Respiratory Hospital v.CareFirst of Maryland, Inc., Case No. CV-14-01335-MWF-(SSx), 2014 WL 12573394, at *8 (C.D. Cal. June 24, 2014), when a medical provider and insurer engage in direct communications as to the eligibility, authorization and the method of payment, it may as a matter of law be deemed to have entered into an implied -in-fact contract regarding the provisions of care to a specific patient. (March 1, 2018 Minute Order at p.7, Dkt. 35). In other words, the mutual agreement or intent may be inferred from the conduct of the parties - that is, the phone call for verification of benefits, followed by the assurance that reimbursement is at 80% of the provider’s usual and 22862 - 11 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 customary value for medical necessary services, the statement that outpatient procedures do not require authorization, the provider rendering of medically necessary services and provider’s timely submission of total billed charges to the insurer, and payment of some amount by either Defendant Aetna or Defendant SAP. Thus, the Defendants cannot argue there was no mutual assent or lack of consideration when there are multiple outward manifestations to 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 conduct 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 which is stated in the Explanation of Costs (“EOC”) and that the Complaint does not allege Aetna request or received a benefit from California Spine. 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, 22862 - 12 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 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 Patients R.C. and J.P.: The claims at issue here are for Patients R.C. and J.P., who are members of a health plan sponsored, administered and/or financed by Defendant Aetna and Defendant SAP. Compl. ¶11. California Spine alleged that it timely and properly submitted a bill in the amount of $87,500 to Aetna for medical services rendered to Patient R.C. and a bill in the amount of $121,000 to for medical services rendered to Patient J.P. Compl. ¶17, 23. 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 Patients R.C. and J.P. (Compl. ¶16, 21); by its words and/or conduct, Defendants requested that California Spine provide medically necessary services, supplies and/or equipment. Compl. ¶14-15, 20. Acting pursuant to Defendants’ implied and/or express request, California Spine rendering of medically necessary services, supplies and/or equipment to Patients R.C. and J.P. was intended to and benefited Patients R.C. and J.P. and therefore benefited Defendants. Compl. ¶14-15, ¶20 and ¶ 43-44. 22862 - 13 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER 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 The balance of $116,098.50 continues to be left unpaid by Defendants. Compl. ¶22. Accordingly, the Complaint satisfied the “request” prong under the quantum meruit and Defendants’ Demurrer should be overruled. V. CONCLUSION It is clear from the foregoing that California Spine relied to its detriment, the conduct, words, and actions of the defendants. For all the above-stated reasons, California Spine requests that Aetna and SAP’s Demurrer be overruled. If for some reason the Court were to sustain Aenta and SAP’s Demurrer in any way, California Spine respectfully requests it be given leave to amend. Dated: 16 April 2019 LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. /s/Geraldine S. Garcia GERALDINE S. GARCIA Attorneys for CALIFORNIA SPINE AND NEUROSURGERY INSTITUTE, a California for profit corporation OONQLA$UJNH NNNNNNNNNb-‘r-‘HHHHr-Ap-Ah-y-A OOVQM-bWNHOCOOQQM-AWNHOO 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 0f the facts stated in this declaration and if called t0 testify as a witness, I could and would completely testify thereto. I submit this declaration in support of Plaintiff” s Opposition t0 Defendants Aetna, Inc. and Aetna Life Insurance Company (“Aetna”), and Defendant SAP America, Inc. (“SAP”)’s Demurrer to the Complaint of Plaintiff California Spine (“Opposition”). 2. I met and conferred with David Bass, prior counsel of record of Defendants Aetna, Inc. and Aetna Life Insurance Company and Defendant SAP America, Inc., regarding Defendants’ Demurrer. I advised that we would be opposing Defendants’ Demurrer. 3. At this time, we are unable t0 resolve any part 0f this case. I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed this 16th day of April, in Burank, California. “?QWW 952% GERALDINE GARCIA 22862 _ 14 _ 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 16 April 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. [ ] 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: Ideclare under penalty 0f perjury under the laws 0f the State of California that the above is true and correct. Executed on 16 April 2019 in Burbank, California.W LORENA EENCOMO lbencomo sacfirm.com SERVICE LIST Curtis S. Leavitt, Esq. Tawinder K. Sandhu Emily Clark, Esq. tsandhu@kennadavleavitt.com KENNADAY LEAVITT OWENSBY PC 621 Capitol Mall, Suite 2500 Sacramento, CA 95814 (916) 732-3060 cleavitt@kennadavleavitt.corn eclark@kennadayleavitt.corn
