Iv Solutions Inc vs Blue Cross And Blue Shield of Georgia In

Motion for Summary Judgment

Cal. Super. - 2nd Dist.July 23, 2015

C O U N S E L O R S A T L A W T H E O D O R A © O R I N G H E R © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Todd C. Theodora, Esq. (State Bar No. 120426) ttheodora@ tocounsel.com Jessica Hernandez Diotalevi (State Bar No. 244501) jdiotalevi@ tocounsel.com Adam G. Wentland, Esq. (State Bar No. 280010) awentland@ tocounsel.com Andrew G. Prout, Esq. (State Bar No. 287325) aprout@ tocounsel.com THEODORA ORINGHER PC 535 Anton Boulevard, Ninth Floor Costa Mesa, California 92626-7109 Telephone: (714) 549-6200 Facsimile: (714) 549-6201 Attorneys for Plaintiff and Cross-Defendant IV SOLUTIONS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES IV SOLUTIONS, INC., a California corporation, Plaintiff, VS. BLUE CROSS AND BLUE SHIELD OF GEORGIA, INC., aGeorgia corporation; BLUE CROSS OF CALIFORNIA dba ANTHEM BLUE CROSS, a California corporation, and DOES 1 through 25, inclusive, Defendants. BLUE CROSS OF CALIFORNIA dba ANTHEM BLUE CROSS, a California corporation, and ANTHEM BLUE CROSS LIFE AND HEALTH INSURANCE COMPANY, a California corporation Cross-Complainant, VS. IV SOLUTIONS, INC., aCalifornia corporation, and ROES 1 through 25, inclusive, Cross-D efendants. 1151004.2/81360.05014 Case No. BC588973 Assigned For All Purposes To: Hon. Patricia D. Nieto IV SOLUTIONS, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES [Filed Concurrently with Separate Statement of Undisputed M aterial Facts; Declaration of M arlene Casillas; Declaration of Adam G. W entland; Compendium of Evidence; [Proposed] Order; Notice of Motion and Motion to Seal; and [Proposed] Order on Motion to Seal] HEARING: Date: March 18, 2019 Time: 8:30 a.m. Dept.: 24 RESID: 181029360544 Action Filed: July 23, 2015 Trial Date: April 23,2019 IV SOLUTIONS, INC."SNOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, INTHE ALTERNATIVE, SUMMARY ADJUDICATION C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o TO EACH PARTY AND TO COUNSEL OF RECORD FOR EACH PARTY: YOU ARE HEREBY NOTIFIED THAT on March 18, 2019, at 8:30 a.m., or as soon thereafter as the matter may be heard in Department 24 of the above-captioned court, located at 111 North Hill Street, Los Angeles, California90012, Cross-Defendant IV Solutions, Inc. (“IV Solutions”) will move, under Code of Civil Procedure section 437c, for summary judgment in favor of IV Solutions and against Cross-Complainants Blue Cross of California dba Anthem Blue Cross and Anthem Blue Cross Life and Health Insurance Company (collectively, “Anthem”), and for costs incurred herein and such otherrelief as may be just. IV Solutions is entitled to summary judgment against Anthem’s Cross-Complaint because (1) there is no genuine dispute of material fact that IV Solutions serviced A nthem’s members and billed A nthem in full compliance with the law and, in the alternative, because (2) Anthem failed to timely bring this Cross-Complaint under the K nox-K eene Act. Therefore, IV Solutionsis entitled to judgment as a matter of law on A nthem’s Cross-Complaint. Inthe alternative, IV Solutions will move the Court for an order adjudicating the five causes of action’ set forth in A nthem’s Cross-Complaint and adjudicating A nthem’s claim for punitive damages against IV Solutions for the following reasons: (a) Issue 1: Anthem’s First Cause of A ction for Intentional M isrepresentation has no merit because A nthem cannot demonstrate that IV Solutions made any misrepresentation of fact to A nthem, that A nthem reasonably or actually relied, or that A nthem was damaged.. (b) Issue 2: Anthem’s Second Cause of Action for Negligent Misrepresentation has no merit because A nthem cannot demonstrate that IV Solutions made any misrepresentation of fact to Anthem, that Anthem reasonably or actually relied, or that A nthem was damaged. (c) Issue 3: Anthem’s Third Cause of Action for Violation of Cal. Bus. & Prof. Code § 17200 has no merit because Anthem cannot demonstrate a predicate act or damage. (d) Issue 4: Anthem'’s Fifth Cause of Action for Money Had and Received, as pled by Anthem, has no merit because A nthem cannot demonstrate that IV Solutions received any money not for Anthem’s benefit, that IV Solutions made any misrepresentation of fact to A nthem, that A nthem 1 Anthem’s fourth cause of action for unjust enrichment was dismissed on demurrer. 1151004.2/81360.05014 2 NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P P c o ~ N o o u i A W w W N N F P O O V 0 0 N N o o u l B A W N O- -, o O o reasonably relied, or that A nthem was harmed. (e) Issue 5: Anthem's Sixth Cause of A ction for Intentional Interference with Contractual Relations has no merit because A nthem cannot demonstrate that IV Solutions intentionally caused a breach or disruption of the contractual relationship between A nthem and its members, or that A nthem was damaged. (g) Issue 6: Anthem’s claim for punitive damages has no merit because IV Solutions did not act with oppression, fraud, or malice as to Anthem, and A nthem’s boilerplate and conclusory allegations cannot support a punitive damages claim. IV Solutions’ Motion will be based on this Notice, the attached M emorandum of Points and Authorities, the Separate Statement of Undisputed Material Facts, the Declarations of Marlene Casillas and Adam G. Wentland filed with this Motion, the files and records in this action, and any further evidence or argumentat or before the hearing on this matter. DATED: January 2, 2019 THEODORA ORINGHER PC Todd C.ora Jessica Hernan fotalevi Adam G. Wentland Andrew G. Prout Attorneys for Plaintiff and Cross-Defendant IV SOLUTIONS, INC. 1151004.2/81360.05014 3 NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION C O U N S E L O R S A T L A W T H E O D O R A © O R I N G H E R © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o TABLE OF CONTENTS Page l. PRELIMINARY STATEMENTcoinsessesnes7 Il. FACTUAL BACKGROUNDoiiennaener en see sn en ens ne 8 A. IV Solutions Properly Serviced Anthem’s Members and Properly Billed Anthem fOr THESE SEIVICES ..viiviiiiiiiiie is8 1. JDee---------------------9 2. SG1RROOPSTR10 3. LYeeeereseterna nr eran 11 B. Anthem’s Deficient Discovery Responses and Lack of Evidence...........ccccovennnn. 11 HE. ARGUMENTocceerstereese eersteeens r ener ns 14 A. Standard for Summary Judgment and Summary A djudication...........cceeeeviiiennenn 14 B. Anthem’s First and Second Causes of Action Are NotViable...15 1. Anthem Cannot Establish a Misrepresentation of Fact Made to ANENEM.c c------------16 2. Anthem Cannot Establish Reasonable Reliance. ........ccccvviviiviiiiiciiinnenn, 16 3. Anthem Cannot Establish Any DamagesS......cccouvveevcieienie sence sie seen 16 Anthem’s Cause of Action for Unfair Business Practices Is Not Viable................ 17 Anthem’s Cause of Action for Money Had and Received Is Not Viable................ 17 Anthem’s Cause of Action for Intentional Interference with Contractual Relations IS NOt Viableviiisrs18 F. Anthem Failed to Timely Request a Refund Under the Knox-Keene Act............... 19 1. Anthem Did Not Comply with the Knox-Keene Act......c.cccovvveieiiiennnnne, 19 G. Anthem’s Claim for Punitive Damages Is Not Viable. .....cccovvviiiiiciieceien, 21 IV. CONCLUSIONcoereerste eerste eersteeerste neta nr ener 21 1151004.2/81360.05014 4 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W T H E O D O R A © O R I N G H E R © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o TABLE OF AUTHORITIES Page(s) CASES Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826....ccviviiiriiieiiciiesree15 Anderson v. Deloitte & Touche (1997) 56 Cal. App. 4th 14B8.......c.ooveiiiiciieccsre16 Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 CalLAPP.AN 945...cccreeserere rere 18 Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.APP.Ath 858......ciiiiiciie ic16 Certain Underwriters at Lloyd's of London v. Superior Ct. (1997) 56 Cal.APP.Ath952...15 Dey v. Continental Cent. Credit (2008) 170 CalLAPP.AEN 721eeesteerersree renee 17 Grahamv. Bank of Am., N.A. (2014) 226 Cal. APP. Ath 594.....ooieeceeceeereerere 16 Ingels v. Westwood One Broad. Servs., Inc. (2005) 129 Cal.APP.4th 1050...ciiiiiiiieirciscieseesererrerere 17 Jones v. P.S. Development Company, Inc. (2008) 166 Cal. 4th 707.....cciiiriieirciiecreerrererenner ne 15 LeslieG. v. Perry & Associates (1996) 43 CallAPPAtN AT2coorseee15 Majd v. Bank ofAmerica, NA (2015) 243 CalLAPP.AEh 1293...reeseeserebar 15 National Union Fire Ins. Co. of Pittsburgh, Penn v. Cambridge Integrated Services Group, Inc. (2009) 17 Cal.APP.ALh 35...eeeereres 15 Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118...icicirere18 Popescu v. Apple Inc. (2016) 1 Cal.APP.SEN39...eeerere 18 Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.APP.Ath 979...eeeres 15 Saelzler v. Advanced Group 400 (2001) 25 Cal.Ath 763....cceiiiicriieirciserere15 Scheiding v. Dinwiddie Constr. Co. (1999) 69 CalAPP.AIN BA...seeseeeeeeere be s re bes be eee ree e eres 15 Scott v. Phoenix Schs., Inc. (2009) 175 CalLAPP.AEN T02...cueceesteerereres seers 21 Tenet HealthSystem Desert, Inc. v. Fortis Ins. Co., Inc. (2007) 520 F.SUPP.20 1184.....ooiiiciieiieiiecrestsreeserene ne 16 1151004.2/81360.05014 5 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W T H E O D O R A © O R I N G H E R © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P P c o ~ N o o u i A W w W N N F P O O V 0 0 N N o o u l B A W N O- -, o O o Union Bank v. Superior Court (1995) 31 Cal.APP.Ath 573.cecesreeree sbeebs ee rears 15 STATUTES Cal. BUS. & Prof. Code § 17200...crisireeireieeniesresbessressrssesbesbbesb ae sre sree ere sbae aren 17 OF TI OF AVA OoTo[RTC PAL1 )FR21 Cal. Code Civ. Pu 8 437C(A)(1) civicsessere eerste sbeebs sbeebs sheen e beens 14,15 Cal. Health & Saf. Code § 1367.03...sesss bbe sresbe ar besr ens 18 Cal. Health & Saf. Code § 1371.1(3)(1)eeveesbeebserasers 20 OTHER AUTHORITIES Judicial Council of California Civil Jury Instruction NO. 370 (2017) .ecvcieiiiececececesreees 17 REGULATIONS TO CL.CLR.G 2240.1.bes ste t seb e sbeebs shes sts e tes b esa b sab be eben eres be eres 18 28 C.C.R.§ 1300.67.21iiiereabe sheers eee eb e haereer bearers eres 18 28 C.C.R.§ 1300.71iiieectssree sbeebs shee sbeebs ere ebb beers e sbeebs arenas 19, 20 1151004.2/81360.05014 6 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o MEMORANDUM OF POINTSAND AUTHORITIES 1. PRELIMINARY STATEMENT From 2002 through 2015, IV Solutions provided home infusion and injection services to hundreds of patients with health insurance through Anthem. Many of these patients faced life- threatening illnesses that only home infusion could treat or cure. All of these patients had faithfully paid their premiums to A nthem for health insurance. IV Solutions treated these patients when no other provider would. 1V Solutions did not charge the patients for the treatment,it charged A nthem. IV Solutions charges were well-known to A nthem. IV Solutions had treated A nthem members since 2002. Anthem had paid IV Solutions’ charges many times before. Anthem knew that IV Solutions was not in any of Anthem’s networks - IV Solutions had not agreed to any of Anthem’s network rates or restrictions. As an out-of-network provider, IV Solutions was entitled to charge whatever price it wanted and had always charged fifty times the average wholesale price for a medication. If Anthem did not like IV Solutions’ prices, Anthem was free not to authorize IV Solutions’ service, to not permit referrals to IV Solutions, or to tell IV Solutions that A nthem would not pay IV Solutions’ prices at all. For the three patients at issue in this case, Anthem did none of these things. Instead, A nthem permitted IV Solutions to treat the patients. After IV Solutions did so, IV Solutions billed Anthem. Anthem ultimately paid most, but not all, of IV Solutions’ charges. In 2015, IV Solutionsfiled the underlying Complaint for A nthem’s failure to pay IV Solutions for treatments provided to one patient, J .R. (IV Solutions also filed other lawsuits against A nthem for its failure to pay for treatments provided to other patients.) In 2017, Anthem filed the present Cross- Complaint. The essence of this Cross-Complaintis that A nthem allegedly overpaid IV Solutions for three patient (not J .R.) and that IV Solutions has to refund the money. A nthem does not dispute that the three patients at issue had a debilitating illness (multiple sclerosis), that they were insured by Anthem, that they needed home injections, that their physicians referred the patients to IV Solutions, that IV Solutions provided the home injections, and that IV Solutions had a right to paymentfor the treatments. A nthem’s claim is that A nthem overpaid IV Solutions and IV Solutions owes a refund. Anthem has no right to a refund of its payments to IV Solutions for IV Solutions’ good faith treatment of these three patients. First, Anthem actually paid lessthan IV Solutions’ billed charges for 1151004.2/81360.05014 7 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R TH EO DO RA © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o treating each of the three patients at issue. Second, in discovery, IV Solutions requested any and all evidence showing that IV Solutions did something wrong with these three patients that merits a refund. 1V Solutions was careful to ask about each and every paragraph in Anthem’s Cross- Complaint. IV Solutions wanted to give A nthem every opportunity in discovery to produce evidence of some kind of wrongdoing on IV Solutions’ part that would require IV Solutions to return the payments. Anthem has not been able to produce an iota of evidence. Why? BecauselV Solutionsdid not violate any law or breach any obligation in its treatment of these three patients. IV Solutions followed the physicians’ instructions for each of the patients and helped the patients to recover. Anthem’s Cross-Complaint is without any evidentiary support. Not only is Anthem’s Cross-Complaint without merit, itis too late. Thereisalimitto when Anthem may seek a refund from a health care provider such as IV Solutions for an alleged overpayment. Under the Knox-K eene Act, Anthem has 365 days from date of payment to seek a refund. The most recent payment A nthem made for any of these three patients was in 2015. Anthem did not comply with the K nox-K eene A ct’s requirements for seeking a refund until A nthem filed its Cross-Complaint in 2017. Anthem is time-barred from seeking refund of these payments now. For all of these reasons, IV Solutions respectfully requests the Court to grant this motion and issue judgment in favor of IV Solutions. I. FACTUAL BACKGROUND A. IV Solutions Properly Serviced Anthem’s M embers and Properly Billed Anthem for These Services IV Solutions provided home infusion therapy to hundreds of A nthem members. IV Solutions treated patients only with a physician referral for home infusion. These patients had compromised immune systems; they could not visit a hospital without risk of secondary infections. A patient's physician must refer directly to IV Solutions. IV Solutions never accepted walk-in patients. (Casillas Decl. 193-5.) Four of the Anthem members whom IV Solutions treated were D.B.,J.D.,K.N.,and I.Y . (the “Patients”), three of whose accounts are at issue in this case. (Undisputed Fact [“UF”] 1.) Anthem has withdrawn its claim as to patient D.B. (UF 1), who received the same daily treatment from IV 1151004.2/81360.05014 8 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Solutions and for whom IV Solutions billed inthe same manner as for) .D.,K.N.,andl.Y. (UF 5.) In arecentarbitration proceeding over D.B.’s account, Anthem’s Person M ost K nowledgeable admitted IV Solutions billed correctly and did not commit fraud as to D.B. and Anthem. (UF 5.) In other words, Anthem admitted that the method that IV Solutions billed Anthem for).D.,K.N., and l.Y . was legitimate and not misleading. (UF 5.) IV Solutions correctly billed Anthem forthe) .D., K.N., and l.Y. accounts, and Anthem did not overpay. (UF 2, 3,4.) IV Solutions treated each of these patients per their physicians’ out-of-network referral. (UF 6.) Foreach Patient, IV Solutions provided Copaxone forthe Patients’ M ultiple Sclerosis based on an out-of-network referral from an Anthem physician. (UF 7.) IV Solutions provided all of the home infusion or home injections that the patients required, as well as all of the equipment and assistance that the patients needed. (UF 7.) IV Solutions then sent Anthem claims on CM S-1500 forms accurately representing and coding the services. (UF 8.) IV Solutions never duplicated any charges. (UF 9, 18.) There is no dispute that IV Solutions performed all of its obligations as a home care provider for these patients. IV Solutions also billed A nthem for these treatments. A nthem does not, and cannot, contend that IV Solutions billed for services thatit did not provide. To the contrary, there is no dispute that IV Solutions billed Anthem only for the treatments that IV Solutions actually provided. (UF 5-8.) Theres also no dispute that Anthem never paid more than IV Solutions’ total billed charges for any of the Patients. (UF 12.) The actual dispute raised by Anthem’s Cross- Complaint is that IV Solutions somehow tricked Anthem into paying more for the services than Anthem actually wanted to pay. Anthem claims it is owed a refund for payments made to IV Solutions for treatment that IV Solutions provided to these three A nthem members. As the following summary shows, IV Solutions correctly billed Anthem for the services IV Solutions provided to each member. Anthem never overpaid on any of these accounts. lL. LD. OnMay 13,2011, IV Solutions received an out-of-network referral to treat patient) .D. from the University of Southern California M edical Center, Department of Neurology. The prescription called for 20mg daily treatments of Copaxone (glatiramer acetate) for 90 days plus injection devices. Based on the prescription and physician’sinstructions, IV Solutions provided Copaxone and necessary 1151004.2/81360.05014 9 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o supplies and equipment to patient ].D. for daily use. Anthem authorized IV Solutions to treat ].D. (Declaration of Marlene Casillas [“Casillas Decl.”], 19 16-20.) After rendering treatment to) .D., IV Solutions submitted insurance reimbursement claims to Anthem on industry-standard forms. |V Solutions used only those billing codes that matched the actual treatment provided and matched the physician's prescription and Anthem’s authorizations. (Casillas Decl., 1920-22.) Anthem issued initial paymentto IV Solutions for the) .D. account within afew months from when IV Solutions sent its claims. For patient] .D., IV Solutions issued a total of $4,682,304.48 in claims for services rendered, and Anthem only paid $2,364,681.78, leaving a balance of $2,317,622.70. (Casillas Decl., 124.) On March 29, 2016, IV Solutions received a letter from Anthem demanding a refund of interest payments only (not the principal amount for the services). IV Solutions responded on A pril 18, 2016. IV Solutions told A nthem that, per California Health & Safety Code § 1371.35, Anthem was obligated to pay 15% per annum for delayed claims payments. In fact, Anthem had paid only 10% interest for the delay, and A nthem still owed another 5% of interest. A nthem never responded to IV Solutions’ letter, and never corrected its underpayment of interest (or of principal) owed to IV Solutions. (Casillas Decl., 129.) 2. KN. On or about November 23, 2010, IV Solutions received an out-of-network referral to treat patient K.N. from the University of Southern California Medical Center, Department of Neurology. The prescription called for 20mg daily treatments of Copaxone for 30 days plus glass syringe injection devices. (Casillas Decl., 1931-32.) Based on the doctor's prescription, IV Solutions provided Copaxone and necessary supplies and equipment to patient K.N. for daily use from November 24, 2010, through April 29, 2012. Anthem authorized IV Solutions to treat K.N. with Copaxone. (Casillas Decl., § 33.) After rendering treatment to K.N., IV Solutions submitted insurance reimbursement claims to Anthem on industry-standard forms. IV Solutions used the proper billing codes for the drugs and services rendered by IV Solutions, per the physician's prescription and Anthem’s authorizations. 1151004.2/81360.05014 10 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o (Casillas Decl., 1934-35.) IV Solutions issued a total of $2,971,015.78 in claims for services rendered, and A nthem paid $2,741,040.23. (Casillas Decl., 137.) 3. LY. In June 2012, IV Solutions received a referral to treat patient I.Y. from Dr. Nelson J. Owyoung, M.D. Dr. Owyoung prescribed daily injections of Copaxone of 20 mg to treat a multiple sclerosis. After receiving Dr. Owyoung's prescription, IV Solutions requested authorization from Anthem. Anthem did not deny or grant the request for authorization. Knowing that!.Y . needed the treatments, IV Solutions provided the treatments in good faith expecting payment due to 1.Y.'s medical need for life-preserving care. (Casillas Decl., 1 39.) Anthem told IV Solutions to seek authorization from a third-party medical group, Pacific Independent Physician Association. 1V Solutions did so, and the Pacific Independent Physician Association authorized the treatment. (Casillas Decl., 1 26.) IV Solutions submitted standard insurance reimbursement claims to Anthem. IV Solutions used the correct billing codes for 20mg of glatiramer acetate injection and necessary supplies. 1V Solutions also arranged nursing visits for 1.Y . at the commencement of the Copaxone treatmentto train 1.Y . on properly injecting the Copaxone, which were coded asa homenursing visit. These codes accurately reflect the drugs and services rendered by IV Solutions to patient1.Y ., per Dr. Owyoung's prescription and the authorization of Anthem’s designee, the Pacific Independent Physician Association. (Casillas Decl., 1946-47.) Anthem paid for the first part of 1.Y.’s treatment, so IV Solutions continued treating 1.Y . However, before Anthem paid IV Solutions for the second part of 1.Y.'s treatment, A nthem found another, less expensive home pharmacy to provide I.Y . with Copaxone. (Casillas Decl., Ex. 25, Bill Notes at p. 17.) Anthem then directed the patient to the less expensive option, and never paid IV Solutions for the later treatments that IV Solutions provided. Anthem still owes IV Solutions $1,925,126.74 for those services. (Casillas Decl., § 38; Ex. 28, Patient Account Ledger.) B. Anthem'’s Deficient Discovery Responses and L ack of E vidence. On May 10, 2017, Anthem filed its Cross-Complaint. The Cross-Complaintraises causes of 1151004.2/81360.05014 11 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o action for (1) Intentional Misrepresentation, (2) Negligent Misrepresentation, (3) Violation of Business & Professions Code Section 17200, (5) Money Had and Received, and (6) Intentional Interference with Contractual Relations.? There is no dispute that A nthem has paid less than what |V Solutions billed A nthem for its services for these Patients. (UF 2-4.) The gravamen of the Cross- Complaint is that Anthem wishes that it had paid lessfor the services, and now wants some ofits money back. However, Anthem was at all times free not to use IV Solutions’ services. Knowing IV Solutions’ prices, Anthem kept the patient with IV Solutions anyway. (Casillas Decl., 96.) IV Solutions billed the way it had always billed (ibid.), and Anthem paid what it wanted to pay. That Anthem wishes it had paid even less is not actionable. On March 19, 2018, IV Solutions propounded discovery on Anthem to figure out whatlegal and factual bases A nthem thought it had for seeking a refund from IV Solutions. In particular, IV Solutions propounded 56 special interrogatories seeking the facts, witnesses, and documents supporting the cross-claims. For Anthem’s convenience, and to leave no stone unturned, the interrogatories tracked A nthem’s allegations in the Cross-Complaint, paragraph by paragraph. 1V Solutions propounded identical requests to Blue Cross of California dba Anthem Blue Cross and Anthem Blue Cross Life and Health Insurance Company, the two Cross-Complainants.® (UF 15.) On April 30,2018, Anthem responded to IV Solutions’ interrogatories. Anthem’s discovery responses contained pages and pages of objections to the requests, and Anthem’s responses also referenced a Board of Pharmacy decision finding misconduct as to four other patients, not the patients atissuein Anthem’s Cross-Complaint. The Board of Pharmacy decision referenced by A nthem was delivered after IV Solutions treated the three patients at issue in the Cross-Complaint, and the Board of Pharmacy had full access to investigate IV Solutions’ service and billing as to those three patients. However, the Board of Pharmacy never raised any issue as to IV Solutions’ treatment or billing of 2 The fourth cause of action for unjust enrichment was dismissed after [V Solutions’ demurrer. See Notice of Ruling filed October 23, 2017. 3 IV Solutions propounded identical requests on the Anthem entities, but the requests are numbered differently and contained in different sets because Anthem Blue Cross Life and Health Insurance Company was not among the A nthem entities originally sued in the Complaint and to which IV Solutions had already directed discovery to support its Complaint. 1151004.2/81360.05014 12 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o J.D.,1.Y., or K.N., the only three patients at issue in Anthem’s Cross-Complaint. (UF 16.) Not only did the Board of Pharmacy not find any problem related to these three patients, Anthem’s discovery responses also do not identify any evidence of any misconduct regarding IV Solutions’ treatment of or billing for J.D., I.Y ., or K.N. Anthem’s discovery responses could not identify a single fact to support A nthem’s cross-claims. (UF 16, 17. 18.) For example, IV Solutions’ Special Interrogatory No. 51 to Blue Cross of California asked, “State all facts relating to Y OUR allegation that IV Solutions concealed ‘the fact that it was a non- participating provider’ as alleged in Paragraph 26 of YOUR CROSS-COMPLAINT.” (Ex. 34, Special Interrogatories, Set Two, to Anthem Blue Cross, p. 2.) On April 30, 2018, Blue Cross of California responded with lengthy boilerplate objections and a reference to the Board of Pharmacy decision that expressly did not find any problem with IV Solutions’ treatment of or billing for ).D., LY. orK.N.: Discovery is ongoing and A nthem Blue Cross has not yet identified all facts which relate to its allegation that IV Solutions concealed the fact that it was a non- participating provider. Between 2008 and 2011, the California Board of Pharmacy received and investigated numerous consumer complaints filed against IV Solutions. Based on these investigations, the Board filed an A ccusation against IV Solutions on February 25, 2011, seeking to revoke IV Solutions’ pharmacy permit. On September 29, 2014, the Board filed a Third Amended Accusation against IV Solutions and one of its PICs, Renee Sadow, pursuant to various sections of the B usiness and Professions Code Section and the California Code of Regulations governing pharmacies and pharmacists. After a full hearing, at which Alex Vara, Marlene Casillas, Renee Sadow, and experts offered by IV Solutions testified, among others, the Board rendered a decision on M arch 5, 2015, revoking IV Solutions’ pharmacy license, and specifically forbidding Ale x Vara from ever operating any other pharmacy. The Board made a numberof adverse fact findings against IV Solutions, including that IV Solutions failed to inform two of its patients that it was an out of network provider. See, e.g., Cross-Complaint (“Cross-Compl.”), Ex. A, at 1986, 97. The Board further found that IV Solutions’ [SIC] intentionally acted in a deceitful manner ....by concealing information that it had a duty to provide, which conduct was motivated by a desire to maximize charges to the patients’ insurance companies.” Cross-Compl., Ex. A, at p. 43. On information and belief, Anthem Blue Cross believes that IV Solutions engaged in a similar course of conduct in providing treatment to Anthem Blue Cross's members. (Ex. 36, Anthem Blue Cross’ Responses to Special Interrogatories, Set Two, pp. 3-5.) Anthem'’s response references the Board of Pharmacy’s findings as to otherpatients, but does not reference any Board of Pharmacy finding - or any other fact- astoJ.D.,1.Y ., and K.N. - the only patients at issue in Anthem'’s Cross-Complaint. (/d.; UF 1.) 1151004.2/81360.05014 13 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o All of the other Anthem responses to IV Solutions’ requests regarding the Cross-Complaint are nearly identical and similarly deficient. Not one of them identifies a single fact showing any misconduct as to the only patients at issue here. IV Solutions gave A nthem another chance to identify any evidence in support of its claims. On November 1, 2018, IV Solutions served A nthem with Supplemental Interrogatories. (UF 19; see Exhs. 37-38.) On December 6, 2018, Anthem responded to IV Solutions’ Supplemental Interrogatories as follows: Other than the documents produced by Cross-Defendant in this action, [Anthem] is unaware of any later acquired information bearing on its written responses to Cross- Defendant's Form Interrogatories (Set One) and Special Interrogatories (Set One) previously served and responded to in this action. Discovery is ongoing and [A nthem] believes that further witness and expert discovery may lead to additional responsive information. Although not required, [Anthem] expressly reserves its right to supplement this response. (Ex. 39, p. 5; Ex. 40, p. 5.) Anthem’s responses were verified by a “legal specialist” at the company. (Ibid.) Tellingly, Anthem’s responses do not identify any specific document showing any misconduct on IV Solutions’ part as to the patients at issue here. That is because there is no such document, because IV Solutions did not violate any law or break any obligation as to patients ).D., 1.Y ., or K.N. (See passim Exhs. 35-36, 39-40.) IV Solutions’ counsel addressed the glaring deficiencies with A nthem'’s case, demanding that Anthem dismiss the case or face a malicious prosecution action. (Wentland Decl., 113.) Anthem refused to dismiss its case yet still was unable to cite to any evidence for its claims. (/bid.) Accordingly, IV Solutions is filing the present Motion. Il. ARGUMENT A. Standard for Summary | udgment and Summary Adjudication Summary judgment must be granted where the “action has no merit.” (Cal. Code Civ. P. § 437c(a)(1).) IV Solutions bears the initial burden of showing that: (1) one or more elements of the cause of action cannot be established; or (2) there is a complete defense to a cause of action. (Cal. “All of Anthem'’s responses are attached to the accompanying Compendium of Evidence for the Court's review. See Exhs. 35-36 (original responses). 1151004.2/81360.05014 14 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Code Civ. P. § 437c(c); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) In meeting this burden, IV Solutions may point to the absence of evidence to support Anthem'’s Cross- Complaint. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780.) This burden does not require IV Solutions to “conclusively” negate an element; IV Solutions need only show that A nthem does not presently possess the needed evidence and cannot reasonably obtain it. (Jones v. P.S. Development Company, Inc. (2008) 166 Cal.4th 707, 710.) Once this burden of “showing” has been met, the burden then shifts to Anthem to present evidence that a triable issue of material fact exists. (CCP §437c(p)(2); see also, Saelzler, supra, 25 Cal.4th at 780.) Anthem must set forth the specific facts which prove the existence of a triable issue of material fact. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 578.) Because Anthem cannot identify a single fact in support of its claims for refund on patients J.D.,K.N.,orl.Y., IV Solutions is entitled to summary judgment against A nthem’s Cross-Complaint. (Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 76; Leslie G. v. Perry & Associates (1996) 43 Cal .App.4th 472, 476; Certain Underwriters at Lloyd's of London v. Superior Ct. (1997) 56 Cal.App.4th 952, 958; seealso Aguilar, supra., 25 Cal.4th at 864-65 (“A ll that the defendant need do is to ‘show . . that one or more elements of the cause of action... cannot be established’ by plaintiff”).) B. Anthem’s First and Second Causes of Action Are Not Viable Anthem’s first and second fifth causes of action - for intentional misrepresentation and negligent misrepresentation - fail without evidence of a misrepresentation,reliance, or damages. Both intentional misrepresentation and negligent misrepresentation require proving that the defendant (here IV Solutions) made a misrepresentation of fact that the plaintiff (here A nthem) relied upon. Robinson Helicopter Co., Inc. v.Dana Corp. (2004) 34 Cal.A pp.4th 979, 990; Majd v. Bank of America, NA (2015) 243 Cal.App.4th 1293, 1307; National Union Firelns. Co. ofPittsburgh, Penn v. Cambridge Integrated Services Group, Inc. (2009) 17 Cal.A pp.4th 35, 50. Anthem has no evidence to support and cannot establish that IV Solutions misrepresented a fact that Anthem relied upon in paying IV Solutions. Therefore, Anthem’s intentional misrepresentation and negligent misrepresentation causes of action fail as a matter of law. 1151004.2/81360.05014 15 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R TH EO DO RA © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o 1. Anthem Cannot Establish a M isrepresentation of Fact M ade to A nthem. As established by Marlene Casillas's declaration submitted herewith, IV Solutions did not make any misrepresentation to Anthem or its members in relation to IV Solutions’ treatment of Anthem’s members or IV Solutions’ billing for these services. IV Solutions did not suppress or conceal any facts so as to constitute concealment or nondisclosure. Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.A pp.4th 858, 868. 2. Anthem Cannot Establish Reasonable Reliance. Anthem’s causes of action for intentional misrepresentation and negligent misrepresentation for a second and independent reason: Anthem could not have reasonably relied on any alleged misrepresentations, because A nthem had all of the material facts available to it at all times, from the moment IV Solutions first billed Anthem for its treatmentof the Patients. Justifiable reliance is a necessary elements of Anthem’s intentional and negligent misrepresentation causes of action. See Anderson v. Deloitte & Touche (1997) 56 Cal. A pp. 4th 1468, 1474 (intentional misrepresentation); Graham v. Bank ofAm., N.A. (2014) 226 Cal. A pp. 4th 594, 606 (fraudulent concealment); Tenet HealthSystem Desert, Inc. v. Fortis Ins. Co., Inc. (2007) 520 F.Supp.2d 1184, 1195 (negligent misrepresentation). Therefore, without a showing of reasonable reliance, these causes of action fail for this independent reason. Anthem cannot show that it reasonably relied on any alleged misrepresentation by IV Solutions. Anthem knew IV Solutions was an out-of-network provider, meaning it was not bound by any of Anthem’s network contracts as to how much IV Solutions could charge. Anthem knew IV Solutions’ pricing formula atall times. IV Solutions sent truthful and complete reimbursement claims to Anthem for processing. The Board of Pharmacy investigations that A nthem cites date back to February 2011 - well before A nthem paid IV Solutions on these patients - and the investigations were a matter of public record. Anthem had available to it all of the facts at issue. Even if, assuming arguendo, that Anthem could somehow establish a misrepresentation on behalf of IV Solutions, Anthem cannotestablish reasonable reliance. 3. Anthem Cannot Establish Any Damages Finally, Anthem has presented no evidence that any alleged conduct by IV Solutions (none of 1151004.2/81360.05014 16 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W T H E O D O R A © O R I N G H E R © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o which is supported by evidence), caused A nthem any harm. In fact, to date A nthem has paid less than IV Solutions’ billed charges. C. Anthem's Cause of Action for Unfair Business Practices Is Not Viable Anthem asserts a separate cause of action under California's Unfair Competition Law (the “UCL,” California Business & Professions Code Section 17200, etseq.). Anthem alleges only that IV Solutions breached the UCL (and violated a statutory mandate for the Board of Pharmacy and the Penal Code) by engaging in “unlawful” business acts or practices with the same alleged conduct giving rise to Anthem’s fraud causes of action, i.e. dishonest and fraudulent behavior. As described above, Anthem has not and cannot establish viable claims for liability based on such theories. As such, there is no liability on an unfair business practice cause of action. See Dey v. Continental Cent. Credit (2008) 170 Cal.A pp.4th 721, 730 (affirming trial court's “determin[ation] that the allegation... does not support a cause of action.” where plaintiff “did not meet his burden of showing a contract or statute prohibits defendants’ collection fee”). The UCL prohibits acts or practices that are: (1) unlawful; (2) fraudulent; or (3) unfair. Cal. Bus. & Prof. Code § 17200. In supportof itsUCL claim, Anthem simply re-alleges conduct that form the basis of its fraud claims (1955-57) and parrot the three UCL prongs (159-61), without making any attemptto differentiate or explain how any allegations satisfy a specific prong. Anthem’s vague and conclusory pleading is insufficient to statea UCL claim. Moreover, A nthem has not sufficiently alleged a predicate act giving rise to liability under the UCL. Because Anthem’s predicate causes of action for intentional and negligent misrepresentation and money had and received fail for the reasons described above, Anthem’s UCL claim also fails. See, e.g., Ingelsv. Westwood One Broad. Servs., Inc. (2005) 129 Cal.A pp.4th 1050, 1068 (UCL claim fails where claim it is predicated on fails). D. Anthem's Cause of Action for Money Had and Received Is Not Viable A common count for “money had and received” requires that A nthem prove that IV Solutions received money that was not used for the benefit of Anthem. (Judicial Council of California Civil Jury Instruction No. 370 (2017).) Here, however, the undisputed evidence shows that the money was paid to IV Solutions for treatments rendered to one of Anthem’s insureds, fulfilling A nthem’s legal 1151004.2/81360.05014 17 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o obligations underits health plan. Anthem benefited from the money given to IV Solutions, because Anthem owed a contractual obligation to provide for its insureds’ treatment, and IV Solutions provided that treatmentto the insureds. Furthermore, Anthem'’s theory on which this cause of action was based is that IV Solutions made misrepresentations, and A nthem paid IV Solutions wrongfully. (Cross-Complaint, p. 18, 172.) But as set forth above, Anthem has no evidence of any misrepresentation, let alone reasonable or actual reliance or damage. As such, Anthem’s fifth cause of action lacks merit as a matter of law. E. Anthem's Cause of Action for Intentional Interference with Contractual Relations Is Not Viable To prevail on its cause of action for intentional interference with contractual relations, Anthem must show that IV Solutions intended to induce A nthem’s members to breach or disrupt their contract with Anthem, and that the contract was actually breached. Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal.App.4th 945, 958; Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39, 51. The plaintiff must have “resulting damage” from the purported interference. Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126. Foremost, A nthem can present no evidence that IV Solutions agreed with the Patients to waive deductible or co-payments. (See Cross-Complaint, p. 19, 178.) Anthem admitted that the Patients did not breach their contracts, and Anthem simply cited back to its unsupported allegations of “overpayment” for why it was purportedly harmed. (See Ex. 35, Responses to Special Interrogatories, Set One, by Anthem Blue Cross Life and Health Insurance Company, No. 50 at pp. 50-51 and No. 53 at pp. 52-53.) As shown above, Anthem was not overpaid. (UF 2-4.) Without an actual breach by one of its patients or evidence of any purported agreement to waive costs, Anthem’s claim is meritless. Second, IV Solutions neverinterfered with the A nthem health insurance policies, but rather, fulfilled A nthem’s obligations thereunder to provide medically necessary treatment as ordered by Anthem'’s physicians and authorized by Anthem itself. (UF 6-12; see Cal. Health & Saf. Code § 1367.03; 28 C.C.R. § 1300.67.2; 10 C.C.R. § 2240.1 (insurer and managed care plans required to 1151004.2/81360.05014 18 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o provide medically necessary treatment, even if no in-network provider can treat the patient).) A nthem cannot authorize IV Solutions to treat its insureds to fulfill Anthem’s obligation arising from those policies, then turn around and claim IV Solutions interfered with those policies by doing exactly what Anthem authorized in the first place. Anthem’s claim is nonsensical and contradicts its out-of- network referrals and authorizations. Third, Anthem could not have been harmed underits theory that IV Solutions agreed not to charge the patients co-payments. Under Anthem’s theory, IV Solutions would be the party harmed, since the patients pay the provider, IV Solutions, any co-payment amounts. And in reality, Anthem deducted amounts that it paid to IV Solutions for co-payments. (See, e.g., Ex. 6, p. 3 (Anthem deducted co-insurance from payment to IV Solutions by $22.50), p. 4 (A nthem deducted co-insurance from payment to IV Solutions by $22.50), etc.) Therefore, Anthem cannot establish any of the elements of its contractual interference claim. F. Anthem Failed to Timely Request a Refund Under the Knox-K eene A ct 1. Anthem Did Not Comply with the Knox-Keene Act. Each of Anthem’s cross-claims is based on the overarching theory that IV Solutions improperly billed Anthem and A nthem “overpaid” IV Solutions for services IV Solutions provided to Anthem’s members. The Knox-K eene Act (“the Act”) governs the procedures health care service plans like Anthem must follow for collecting overpayments to providers. The Act imposes obligations on Anthem and IV Solutions as a provider in the overpayment context. Anthem cannot recover on its cross-claims because A nthem failed to properly address and adjudicate any alleged overpayments, under the K nox-K eene Act (“Act”). The A ct requires that “[a]ll health care service plans and their capitated providers that pay claims. . . shall establish a fast, fair and cost-effective dispute resolution mechanism to process and resolve contracted and non-contracted provider disputes.” (28 CCR § 1300.71.38.) California law allows K nox-K eene plans 365 days from the date of payment in which to request a refund. 28 C.C.R. § 1300.71 (b)(5) (“A plan... shall not request reimbursement for the overpayment, . . . unless the plan . . . sends a written request for reimbursement to the provider within 365 days of the D ate of Payment on the over paid claim.”). The only exception to the 365-day time limitis for fraud, but as established above, A nthem has no triable 1151004.2/81360.05014 19 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o issue of material fact as to IV Solutions committing fraud here. If a health care service plan determines that an overpayment has been made to a provider, the A ctrequires the plan to send the provider a “notice of reimbursement of the overpayment of a claim.” (See 28 CCR § 1300.71(b)(3)-(4); see also Cal. Health & Saf. Code § 1371.1(a)(1).) Thus, the plan must “notif[y] the provider in writing through a separate notice identifying the overpayment and the amount of the overpayment.” (Cal. Health & Saf. Code § 1371.1(a)(1).) The notice “[ must] clearly identify[] the claim, the name of the patient, the date of service. ...” Additionally, the notice “Imust] includ[e] a clear explanation of the basis upon which theplan .. . believes theamount paid on the claim was in excess of the amount due, including interest and penalties on the claim.” (28 CCR § 1300.71(d)(3).) “If the provider contests the. . . notice of reimbursement of the overpayment of a claim. .. within 30 working days of the receipt of the notice of overpayment of a claim,” then “[t]he plan or the plan's capitated provider shall receive and process the contested notice of overpayment of a claim as a provider dispute pursuant to Section 1300.71.38 oftitle 28.” (28 CCR § 1300.71(b)(4).) Unless the plan finds that the provider dispute is incomplete and that further, reasonably relevant information is required from the provider in order to process the dispute (28 CCR 1300.71.38(d)(2)-(3)), the “plan or the plan's capitated provider shall resolve each provider dispute, ... and issue a written determination stating the pertinent facts and explaining the reasons for its determination within 45 working days after the date of receipt of the provider dispute. ...” (28 CCR § 1300.71.38(f).) Anthem never complied with any of these requirements as to any of the Patients at issue here. The only request for refund that Anthem sent was as to patient J .D., but the request was only for refund of interest payments (not payments for services) and the request did not satisfy the Act. On March 29, 2016, Anthem demanded a refund of interest payments made to IV Solutions for the .D. account. IV Solutions responded on April 18, 2016, contesting notice of reimbursement of the overpayment - within 30 working days of the receipt of the notice of the alleged overpayment. (UF 20.) Under the Act, Anthem was then required to “receive and process the contested notice of overpayment of a claim as a provider dispute.” Anthem was further required to issue a written 1151004.2/81360.05014 20 MEMORANDUM OF POINTS AND AUTHORITIES C O U N S E L O R S A T L A W O R I N G H E R T H E O D O R A © © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o determination stating the pertinent facts and explaining the reasons for its determination within 45 working days after the date of receipt of the provider dispute. However, in violation of its obligations under the Act, Anthem took no further action. Because Anthem failed to follow the required overpayment procedures under the A ct as to any of the Patients at issue,its Cross-Complaint is time-barred. G. Anthem’s Claim for Punitive Damages Is Not Viable A plaintiff may recover punitive damages “for the sake of example and by way of punishing the defendant” if it proves “by clear and convincing evidence that the defendant had been guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a); Scott v. Phoenix Schs., Inc. (2009) 175 Cal.App.4th 702, 715. A nthem'’s punitive damages allegations are conclusory and boilerplate, and A nthem’s request for punitive damages is not supported by factual allegations or evidence. Anthem failed to produce any evidence in its discovery responses to support its punitive damages allegations. Consequently, Anthem’s claim for punitive damage award against IV Solutions, and this claim should be dismissed. IV. CONCLUSION Because IV Solutions has met its initial and Anthem has not and cannot show any triable issues of fact, and because A nthem is time-barred from recovering alleged overpayments, summary judgment should be granted on Anthem’s Cross-Complaint. Alternatively, summary adjudication of each of the causes of action in Anthem’s Cross-Complaint and of Anthem’s claim for punitive damages should be granted against A nthem and for IV Solutions. DATED: January 2, 2019 THEODORA ORINGHER PC By: Todd C. Thaodora > ) J essica Hernandez Dietalevi Adam G. Wentland Andrew G. Prout Attorneys for Plaintiff and Cross-Defendant IV SOLUTIONS, INC. 1151004.2/81360.05014 21 MEMORANDUM OF POINTS AND AUTHORITIES