R. v. California Physicians’ Service

New Evidence in Reply Blue Shield submitted new evidence in reply consisting of the Declaration of LaShonda Hernandez, and Exhibits 72, 73, and 74. This evidence has not been considered by the court. “The reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving or opposing papers.” (Code Civ. Proc. § 437c(b)(4).)

Law regarding Summary Judgment A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if he or she shows one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c(p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense. (Ibid.) A plaintiff must set forth specific facts showing that a triable issue of material fact exists as to a cause of action or a defense thereto. (Ibid.)

A cause of action has no merit if either (1) one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded; or (2) a defendant establishes an affirmative defense to that cause of action. (Code Civ. Proc. § 437c(o).)

“A summary judgment may be granted only where it is shown that the entire ‘action’ ‘has no merit.’ [Citation.]” (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 834.)

The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.) “ ‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’ [Citation.] ‘[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.’ [Citation.]” (Nicoletti v.

Kest (2023) 97 Cal.App.5th 140, 143–144.)

In determining a motion for summary judgment, the court is “required to view the evidence and the reasonable inferences therefrom in the light most favorable to the party opposing the summary judgment motion; doubts as to whether there are any triable issues must be resolved in favor of the opposing party; and equally conflicting evidence or inferences require denial of a summary judgment motion.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1522.)

Declarations provided in opposition to motions for summary judgment or summary adjudication are liberally construed while the moving party’s evidence is strictly construed. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this

subdivision, if not made at the hearing, shall be deemed waived. (Code Civ. Proc. § 437c(d).)

There is a three-step analysis for the court to determine a summary judgment motion. (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) “First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact.” (Ibid.)

First Cause of Action – Breach of Contract The first cause of action for breach of contract alleges that on or about 2024, Defendant, California Physicians’ Service dba Blue Shield of California (“Blue Shield”), breached the terms of the health plan issued to V.R. by denying a request for treatment on July 12, 2024, which V.R.’s doctor, Dr. Ying Peng, determined was medically necessary for the treatment of V.R. (Comp., at pp. 3-4.) It is also alleged that Blue Shield denied V.R.’s appeal on August 1, 2024, leaving V.R. with no treatment options and a rapidly worsening disease. (Comp. at:23- 24.) It is alleged that Blue Shield has wrongfully denied V.R. the only treatment available to her on two occasions. (Comp.: 5:2-3.)

Here, the following facts are undisputed. The Evidence of Coverage (“EOC”) of the operative health plan contains a provision for exclusions and limitations which states, “drugs and medicines that have received FDA approval for marketing for one or more uses will not be denied on the basis that they are being prescribed for an off-label use if the conditions set forth in California Health & Safety Code Section 1367.21 have been met.” (Plaintiffs’ Separate Statement of Undisputed Material Facts (“UMF”), 2, 3, 6.)

On July 10, 2024, a request was submitted under Plaintiffs’ health plan for prior authorization of treatment for V.R. (UMF, 9.) On July 12, 2024, Blue Shield issued a written response to Plaintiffs and Dr.

Peng, denying the request for prior authorization. (UMF, 10-12.)

On July 23, 2024, a grievance was submitted to Blue Shield in connection with the denial for prior authorization. (UMF, 14.) On July 24, 2024, Blue Shield referred Plaintiffs’ grievance to Advanced Medical Reviews (“AMR”), where Plaintiffs’ request was reviewed by a Board-certified specialist. (UMF, 15.) On August 1, 2024, Blue Shield issued a letter to Plaintiffs upholding its original denial. (UMF, 18.)

Blue Shield’s denials on July 12, 2024, and August 1, 2024, were based on a finding that the requirements of Health & Safety Code § 1367.21 for off-label use were not met. (UMF, 13, 18.) However, Blue Shield presents no evidence, argument, or facts showing that these denials were proper, and that the conditions of Health & Safety Code § 1367.21 for off-label use were not met, as required under the EOC. As such, Blue Shield fails to meet its initial burden of production and persuasion.

The court is prohibited from granting summary judgment when the moving party has not met its initial burden of proof. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086 [finding that unless the moving party has met its initial burden of proof, the court does not have discretion under subdivision (b) of section 437c to grant summary judgment based on the opposing party’s failure to file a proper separate statement].) “[I]f the showing by the defendant does not support judgment in his favor, the burden does not shift to the plaintiff and the motion must be denied without regard to the plaintiff’s showing. [Citation.]” (Crouse v.

Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534.) Where a defendant fails to establish every fact necessary to show the causes of action against them are without merit, they fail to meet their initial burden and the motion must be denied. (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1310.)

Blue Shield argues it eventually authorized, covered, and paid all claims for treatment submitted by Plaintiffs

from December 5, 2024, through December 14, 2025. Although it is undisputed that Blue Shield eventually authorized Plaintiffs’ request for treatment, and issued a letter dated October 29, 2024, to Plaintiffs informing them of this authorization, Blue Shield previously denied coverage on July 12, 2024, and continued to deny coverage on August 1, 2024, after Plaintiffs submitted a grievance on July 23, 2024. Blue Shield cites to no authority supporting its argument that eventual coverage precludes liability for prior denials of coverage, i.e., prior withholding of benefits at the time the prior requests for authorization were made.

Plaintiffs cite McCormick v. Sentinel Life Ins. Co. (1984) 153 Cal.App.3d 1030 for the proposition that an insurer cannot avoid liability merely because it eventually provides coverage, but that case addressed a claim of bad faith, not breach of contract. “[T]he eventual payment of medical expenses does not bar recovery for insurance bad faith. [Citations.]” (McCormick v. Sentinel Life Ins. Co. (1984) 153 Cal.App.3d 1030, 1050-1051.) “[A]n ‘ultimate tender of benefits . . . does not defeat [a cause] of action for insurance bad faith . . . . Rather, it merely mitigates damages.’ [Citation.]” (Id. at p. 1051.)

Nevertheless, implicit in Blue Shield’s definition of “withholding of benefits” is that it means a denial of benefits after the grievance process and review has been completed, and Blue Shield maintains its denial. But if this were the case, then an insured would have no viable cause of action for breach of contract until after Blue Shield essentially denied a request for prior authorization three times.

Second Cause of Action – Breach of Implied Covenant Blue Shield asserts that a claim for bad faith cannot be maintained unless the insurer or health plan unreasonably withheld benefits, and that Plaintiffs’ claim for bad faith fails as a matter of law because the benefits at issue were paid “fully and promptly,” that no benefits were withheld at all, much less in an unreasonable manner, and that Plaintiffs cannot that Blue Shield unreasonably delayed in granting coverage as Blue Shield timely reversed its initial denial pursuant

to a contractual grievance procedure that is expressly contemplated in the relevant plan document.

“Tort liability for breach of the implied covenant of good faith and fair dealing has been variously measured. The primary test is whether the insurer withheld payment of an insured’s claim unreasonably and in bad faith. [Citation.] Where benefits are withheld for proper cause, there is no breach of the implied covenant. [Citation.] The duty imposed by law is not unreasonably to withhold payments due under the policy. [Citation.]” (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1151.) “[T]here are at least two separate requirements to establish breach of the implied covenant: (1) benefit due under the policy must have been withheld; and (2) the reason for withholding benefits must have been unreasonable or without proper cause. [Citations.]” (Ibid.)

The second cause of action incorporates the prior allegations above, and also alleges that Blue Shield breached its duty of good faith and fair dealing by unreasonably and wrongfully failing to provide V.R. with timely coverage of medically necessary care and treatment. (Comp., 7:5-8.) It is more specifically alleged that Blue Shield breached its duty of good faith and fair dealing under the health plan by “[u]nreasonably denying benefits due under the plan,” “[u]nreasonably refusing to cover critically necessary services,” “[u]nreasonably failing to adequately investigate the request for benefits,” [u]nreasonably making treatment decisions based on financial concerns,” “[u]nreasonably using utilization guidelines that are unreasonably stringent and stop members from receiving coverage for medically necessary care,” “[u]nreasonably failing and refusing to give at least as much consideration to Plaintiffs’ interests as they gave to their own interests,” and “[u]nreasonably engaging in the practice of preventing plan member from using covered services in order to save money.” (Comp., 7:9-20.)

Blue Shield makes the same argument as in the first cause of action, i.e., that benefits were not withheld and were paid fully and promptly because it eventually

authorized, covered, and paid all claims for treatment submitted by Plaintiffs, and relies on the same 38 material facts upon which the first cause of action relies. Blue Shield fails to meet its initial burden of persuasion and production for the same reasons discussed above as it fails to show that its denials on July 12, 2024, and August 1, 2024, were reasonable. Additionally, “the eventual payment of medical expenses does not bar recovery for insurance bad faith. [Citations.]” (McCormick v. Sentinel Life Ins. Co. (1984) 153 Cal.App.3d 1030, 1050-1051.} “[A]n ‘ultimate tender of benefits . . . does not defeat [a cause] of action for insurance bad faith . . . . Rather, it merely mitigates damages.’ [Citation.]” (Id. at p. 1051.)

Third Cause of Action - UCL The motion for summary adjudication of the third cause of action for violation of the UCL is GRANTED. “A UCL action is equitable in nature; damages cannot be recovered.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144.) “Injunctive relief and restitution are the only remedies available under the UCL. [Citation.]” (Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 53.)

The Complaint prays for damages, interest, and attorney’s fees. The third cause of action alleges that Plaintiffs have suffered injury in fact and have lost money or property, including incurring monetary expenses for medication, as a result of Defendant’s conduct. (Complaint, 9:12-13.) Neither injunctive relief nor restitution was sought. The argument in Plaintiffs’ opposition that injunctive relief is necessary to prevent further denials or delays of coverage (Opposition, 18:2- 9), was not alleged in the Complaint, and cannot be a basis to deny the motion.

On a motion for summary judgment, the pleadings define the issues. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885.) In the absence of some request for amendment, there is no occasion to inquire about possible issues not raised by the pleadings. (Ibid.) “ ‘ “The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint. A ‘moving party need not “. . . refute

liability on some theoretical possibility not included in the pleadings.” [Citation.]’ . . . ‘ “[A] motion for summary judgment must be directed to issues raised by the pleadings. The [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.” ’ ” [Citation.]’ [Citation.]” (Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 304.)

Punitive Damages The Complaint alleges that Blue Shield’s conduct was “intended by Blue Shield to cause injury to Plaintiffs or was despicable conduct carried on by Blue Shield with a willful and conscious disregard of their rights, or was an intentional misrepresentation, deceit, or concealment of a material fact known to Blue Shield with the intention to deprive Plaintiffs of property, legal rights or to otherwise cause injury, such as to constitute malice, oppression or fraud under California Civil Code section 3294, thereby entitling Plaintiffs to punitive damages.” (Comp., 8:7-11.)

Here, Blue Shield relies on the same 38 material facts that are asserted for the first and second causes of action. As discussed above regarding the first cause of action, Blue Shield fails to produce evidence establishing that its first two denials on July 12, 2024, and August 1, 2024, were properly made on the ground that the conditions for off-label use under Health & Safety Code section 1367.21 have not been met. In turn, Blue Shield fails to show that those denials, and subsequent delays, do not constitute oppression, malice, or fraud.

Evidentiary objections The court sustains Plaintiffs’ objections 1-7. The declarant does not establish personal knowledge of any of the facts stated in the declaration, and therefore the matters to which objection is raised lack foundation. Exhibit 16 is hearsay without an exception, as no facts establish the business records exception applies.

The court declines to rule on Defendant’s objections to Plaintiffs’ evidence. Since Blue Shield did not meet its

initial burden, the burden did not shift to Plaintiffs and the motion must be denied without regard to Plaintiffs’ evidence. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to the disposition of the motion.” (Code Civ. Proc. § 437c(q).)

Moving Party to give notice.

111 Ramirez v. FCA US, 2023-01367066 MOTION FOR SUMMARY JUDGMENT – GRANTED

Defendant FCA US, LLC (“Defendant”) moves for summary judgment on Plaintiff’s complaint under the Song-Beverly Act.

The Unopposed Motion is GRANTED pursuant to Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189. Defendant sustained its burden to establish the causes of action lack merit under Rodriguez because the subject vehicle was purchased used by Plaintiff (UMF No. 1-3) and the Song-Beverly Act only provides protection to purchasers of new motor vehicles.

Thus, the burden shifted to Plaintiff to establish the existence of a triable issue of material fact. Plaintiff failed to file any opposition; and therefore failed to sustain his burden.

Defendant to give notice and submit a proposed judgment.

112 Savalia v. Cigna Healthcare of Calif., 2026-01550386 DEMURRER TO COMPLAINT – SUSTAINED WITH LEAVE TO AMEND

Defendant demurs to all 7 causes of action in Plaintiff’s complaint. Plaintiff has not filed opposition to the demurrer. The Court may construe Plaintiff’s failure to oppose the demurrer as an abandonment of Plaintiff’s claims or an admission that the demurrer has merit. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue