Opposition ObjectionsCal. Super. - 6th Dist.October 19, 2018MD 00 \J Ch Ln 4> bu b0 hi NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. JOY STEPHENSON-LAWS, ESQ. RICHARD A. LOVICH, ESQ. KARLENE ROGERS-ABERMAN, ESQ. CHRISTOPHER HAPAK, ESQ. GERALDINE S. GARCIA, ESQ. 303 N. Glenoaks B1Vd., Suite 700 Burbank, California 9 1 502 Telephone: (8 1 8) 559-4477 Facsimile: (8 1 8) 559-5484 Attorneys for Plaintiff (SBN 113755) (SBN 113472) (SBN 237883) (SBN 267212) (SBN 3 19561) Electronically Filed by Superior Court oft County of Santa Clara on 10/4/2019 12:57 PM Reviewed By: A. Naka Case #1 8CV336774 Envelope: 3481 591 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, Case No.2 18CV336117 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S V DEMURRER TO PLAINTIFF’S AETNA, INC., A Pennsylvania Corporation, AETNA LIFE INSURANCE COMPANY, A Connecticut Corporation, and SAP FIRST AMENDED COMPLAINT (FAC) Hearing on Demurrer AMERICAN, INC., A Delaware Date: October 17, 2019 Corporation; and DOES 1 Time: 9:00 a.m. THROUGH 25, inclusive, Dept: 2 Judge: Hon. Mark H. Pierce Defendants. Complaint Filed: October 19, 2018 FAC Filed: May 8, 2019 Trial: N0 date set 3A, |moto 22862 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT California Spine and Neurosurgery Institute (“California Spine” 0r “P1aintiff’) hereby submits the following memorandum 0f points and authorities in support 0f its opposition t0 Defendant’s Demurrer t0 the First Amended Complaint (“FAC”) (“Demurrer”) filed Aetna, Inc. and Aetna Life Insurance Company (collectively as “Aetna”) and Defendant SAP America, Inc. (“SAP”). Defendants contend that the cause 0f action for quantum memit fails for failure t0 state sufficient facts t0 constitute an action pursuant t0 Civil Procedure Code Section 430.10(e). Defendants contend that the cause of action for quantum meruit asserted in Plaintiff” s FAC fails for the following reasons: Plaintiff fails t0 show that Aetna expressly 0r impliedly requested that Plaintiffprovided services t0 Patient J.P. 0r Patient R.C. (Def.’s Memo, p. 3: 17-19). Contrary t0 Defendants’ contentions California Spine properly and sufficiently alleged facts comprising the elements for quantum meruit against Defendants. At the pleading stage, the FAC pleaded sufficient facts t0 show there was an implied request by Defendants and/or its agent and an intent and benefit Defendants. Therefore, California Spine respectfully requests that the court overrule Defendants’ Demurrer t0 the cause 0f action for quantum meruit. Alternatively, should the court sustain Defendants’ Demurrer, California Spine respectfully requests the court grant it leave t0 file a Second Amended Complaint. II. 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 22862 - 2 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO cause 0f action under any possible legal theory." Sunset Drive Corp. V. City 0f Redlands, 73 Cal. App. 4th 215, 219 (4th Dist. 1999). "In determining the merits of a demurrer, all materialfacts pleaded in the complaint and those that arise by reasonable implication, but not conclusions 0f fact 0r law, are deemed admitted by the demurringparzjy." Rodas V. Spiegel, 87 Cal. App. 4th 5 13, 5 17 (2nd 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. 3rd 369, 374 (4th Dist. 1986) (emphasis added). "A demurrer tests thepleading alone, and not the evidence 0r thefacts alleged." Citv 0f Atascadero V. Merrill Lynch, Pierce, Fenner & Smith, 1110., 68 Cal.App.4th 445, 459 (1“ Dist. 1998) (emphasis added). For that reason, "courts must assume the truth 0f the complaint’s properly pleaded 0r implied factual allegations." Schifando V. City 0f Los Angeles, 31 Cal. 4th 1074, 1081 (2003) (emphasis added). III. LEGAL ARGUMENT A. The FAC Pled Sufficient Facts t0 Allege a Quantum Meruit Cause of Action Because Defendants Authorized Services and Benefited from the Services Rendered by California Spine Defendants’ bases its Demurrer as t0 the third cause 0f action upon the mistaken belief, t0 sustain a cause of action for quantum meruit, California Spine needed t0 show both an express 0r implied request and that services rendered were intended t0 an did benefit the defendant (Def’ s Memo, p. 3:12-14). As asserted by Defendants in its Demurrer, t0 recover a claim for quantum meruit, a plaintiff must show “both that he 0r she was acting pursuant t0 either an express 0r implied request for such service from the defendantm that the services were intended t0 an did benefit the defendant.” Day v. Alta Bates Med. Ctr., 98 Cal.App.4th 243, 248 (2002). (Def’s Memo, p. 3:12-14). 22862 - 3 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO Plaintiff has met both the request requirement and benefit requirement t0 recover under a theory 0f quantum meruit as set forth in Day. The court in Day wanted the plaintiff t0 show that services were performed at the request 0f defendant, this request must be, “an explicit 0r implicit request for services.” 98 Ca1.App.4th at 249. “When services are rendered by the plaintiff t0 a third person, the courts have required that here be a specific request therefor from the defendant.” Id. Here, Plaintiff rendered services in the form 0f minimally invasive spine surgery t0 a third person, here, R.C. or J.P. Defendants, through Aetna’s client services representatives, informed California Spine that “n0 pre- authorization was required for an outpatient procedure” (FAC 111 5-16, 20-21). This statement by Defendants’ agents suggests that Defendants allow for outpatient procedures Without authorization. On two occasions, California Spine informed Aetna client services representatives 0f the surgery t0 be received by R.C. and the surgery t0 be received by J.P., that is minimally invasive spine surgery. Id. Aetna client services representatives, 0n behalf of Defendants, did not inform California Spine that pre-authorization was required for this type of surgery but rather stated that pre-authorization was not required for these surgeries since they were outpatient procedures. (FAC WI 6, 21). Thus, Without requiring pre- authorization, the surgeries can be inferred as an implied request for outpatient procedures. In addition t0 the request requirement, Plaintiff has met the benefit requirement when Plaintiff rendered services to R.C. 0r J.P. The request 0f the Defendants created an obligation upon Plaintiff t0 perform services and Defendants were well aware 0f the fact that not only would services be received by a beneficiary t0 their health plan but services were rendered at Defendants’ direction. The California Supreme Court has held that “performance 0f services at another’s behest may itself constitute ‘benefit’ such that an obligation t0 make 22862 - 4 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO restitution may arise.” Earhart V. William Low Co., 25 Cal. 3d 503 (1979); see also Regents 0f Univ. 0f Cal. V. Principal Fin. G111, 412 F. Supp. 2d 1037, 1047 (ND. Cal. 2006 )(relying 0n Earhart t0 rej ect the argument that the plaintiff failed t0 state a quantum meruit claim because the benefit conferred was t0 its patient, as opposed t0 the insurer). More broadly, “Quantum meruit refers t0 the well- established principle that ‘the law implies a promise t0 pay for services performed under circumstances disclosing that they were not gratuitously rendered. ’ T0 recover in quantum meruit, a party need not prove the existence 0f a contract, but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was t0 be made.”’ Miller V. Campbell, Warburton, Fitzsimmons, Smith, Mendel & m, 162 Ca1.App.4th 1331, 1344 (2008). The FAC clearly alleged R.C. and J.P. as members 0f the Aetna/SAP plan with a benefits identification card that signified the Aetna/SAP plan. (FAC 111 1). Aetna client service representatives on behalf 0f Defendants, informed California Spine that pre-certification authorization was not required for outpatient procedures. (FAC W 15, 17). In other words, as California Spine pled, Defendants, through their agents made an implied request for services rendered When it stated that n0 pre-certification was required after receiving knowledge 0f the services t0 be rendered. (FAC 1H] 16, 21). When California Spine submitted its claim t0 Aetna, Aetna and SAP received a full appreciation of the fact their beneficiary was served and made a payment less than the agreed upon amount (FAC 1H] 19, 24, 45-46). In short, by providing medically necessary care t0 RC. and J.P., California Spine necessarily conferred a benefit upon Aetna and SAP. Defendants deliver their promises made t0 its plan members by making healthcare available. Thus, California Spine has pled sufficient facts in its FAC to allege a quantum memit cause 0f action. Thus, Defendants’ demurrer t0 this cause of action should be overruled. 22862 - 5 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO V. CONCLUSION It is clear from the foregoing that California Spine relied to its detriment, the conduct, words, and actions 0f the defendants. For all the above-stated reasons, California Spine requests that Aetna and SAP’S Demurrer t0 the cause 0f action for quantum meruit be overruled. If for some reason the Court were t0 sustain Aetna and SAP’S Demurrer in any way, California Spine respectfully requests it be given leave t0 amend the cause 0f action for quantum meruit. Dated: 4 October 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 22862 - 6 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT \DOOQONUIAUJNH NNNNNNNNNHHHr-tp-ap-Ir-AHHH WQOMANNHOKOWNONUIAWNF-‘O 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 ofthe Law Offices 0f Stephenson, Acquisto, & Colman, counsel of record for plaintiff California Spine and Neurosurgery Institute (“California Spine”) in this case. I have personal knowledge ofthe 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 Defendants Aetna, Inc. and Aetna Life Insurance Company (“Aetna”), and Defendant SAP America, Inc. (“SAP”)’S Demurrer to the First Amended Complaint (“FAC”) of Plaintiff California Spine (“Opposition”). 2. I met and conferred with Emily Clark, counsel of record for 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 to the FAC. 3. At this time, we are unable to resolve any part ofthis case. I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. Executed this 4th day of October, in Burbank, California. GERALDINE GARCIA 22862 I - 7 - KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHHr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO PROOF OF SERVICE I am employed in the county 0f Los Angeles, State of California. I am over the age 0f 18 and not a party t0 the within action; my business address is 303 North Glenoaks Boulevard, Suite 700, Burbank, California 91502-3226. On 4 October 2019, I served the foregoing document(s) entitled: PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 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 0f collection and processing correspondence for mailing. Under that practice it would be deposited With the United States Postal Service 0n that same day with postage thereon fully prepaid at Burbank, California in the ordinary course 0f business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date 0r postage meter date is more than one day after date 0f 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 t0 be paid by this firm, t0 be deposited With the Federal Express Corporation at a regularly maintained facility 0n the aforementioned date. [C.C.P. 1013(0) 1013(d)] BY PERSONAL SERVICE: I caused the above-stated document(s) t0 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 0n the aforementioned date. [C.C.P. 1013(0)] BY TELECOPIER: Service was effected 0n all parties at approximately__ am/pm by transmitting said document(s) from this firm's facsimile machine (818/559-4477) t0 the facsimile machine number(s) shown above. Transmission t0 said numbers was successful as evidenced by a Transmission Report produced by the machine indicating the documents had KOOOQONUI-PUJNr-t NNNNNNNNNr-Ar-Ar-tr-tr-tp-tr-tr-tr-tb-t OONQUI-RUJNF-‘OKOOOQONUI-bWNV-‘O been transmitted completely and Without error. C.R.C. 2008(6), Cal. CiV. Proc. Code § 1013(6). [X ] BY ELECTRONIC SERVICE: By emailing true and correct copies t0 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 0n 4 October 2019 in Burbank, California. T0RENA$ENCOMO 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.com eclark@kennadavleavitt.com