Elevated Health, Inc. v. Anthem Blue Cross Life and Health Insurance Company

not provided Plaintiff with responses to the RFAs. (Rochlin Declaration P. 4.) Defendant's responses to the RFAs were due by June 8, 2026. Defendant failed to provide responses by that date. (Rochlin Declaration P. 4.)

Thus, Plaintiff is entitled to an order deeming the truth of the matters specified in the RFAs admitted as to Defendant. Plaintiff requests $2,435.00 in monetary sanctions against Defendant in the notice of Motion but requests $2,310.00 in monetary sanctions against Defendant in the Motion. (Motion p. 5.) This reflects the $60.00 filing fee, 1.0 hour of attorneys' fees drafting the Motion, and an anticipated 0.5 hours of attorneys' fees reviewing Defendant's opposition and preparing a reply and 1.0 hour to appear at the Motion's hearing, at $950.00 per hour. (Rochlin Declaration P. 5.)

Defendant failed to timely serve Plaintiff with responses to the RFAs. Thus, sanctions are mandatory. The court further finds fees relating to the opposition and reply are not warranted because Defendant filed no opposition. Thus, the court grants Plaintiff's request for monetary sanctions against Defendant in the reduced sum of $1,960.00, reflecting the $60.00 filing fee and 2.0 of attorneys' fees to prepare the Motion, at $950.00 per hour.

IV. CONCLUSION

For the foregoing reasons, the Motion is granted. The court also grants Plaintiff's request for monetary sanctions against Defendant in the reduced sum of $1,960.00, to be paid by Defendant to Plaintiff's counsel within thirty (30) days of this order.

Dated: August 28, 2026 _______- ___________________________ Hon. Eric Harmon Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT | Elevated Health, Inc., Plaintiff, v. Anthem Blue Cross Life and Health Insurance Company, Defendant. |

Case Number Department 25VECV04899 107 | COURT'S [TENTATIVE] ORDER RE: Demurrer without Motion to Strike¿ | [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: Sustain without leave to amend.

I. BACKGROUND

Starting January 1, 2021, Plaintiff Elevated Health, Inc. ("Plaintiff") "provided vital COVID-19 diagnostic testing and screening services to individuals insured or covered by healthcare plans administered or underwritten by Defendants." (Third Amended Complaint ["TAC"] P. 12.) Plaintiff provided these services "as an independent, out-of-network, non-participating provider." (TAC P. 13.) Defendants are financially responsible for paying healthcare providers and suppliers for COVID-19 testing and diagnostic services performed for their insureds and members. (TAC P. 13.) "Plaintiff maintained and published a uniform baseline cash price of $125.00 for its COVID-19 diagnostic testing and screening services on its publicly accessible website." (TAC P. 14.)

Plaintiff submitted claims to Defendants for the services rendered. (TAC P. 15.) Defendants did not instruct Plaintiff to cease providing services or issue notices that claims would be rejected. (TAC P. 16.)

Between January 1, 2021, and February 6, 2024, Plaintiff provided over 100,000 COVID-19 diagnostic and testing services for Defendants' insureds. (TAC P. 17.) Defendants failed to pay Plaintiff for these services. (TAC P. 17.)

Between January 8, 2021, and August 22, 2023, Plaintiff provided another 14,856 COVID-10 diagnostic and testing services to Defendants' insureds. (TAC P. 18.) Defendants made partial, nominal, and incomplete payments for these services. (TAC P. 18.)

Between January 9, 2021, and November 23, 2021, Plaintiff provided an additional 7,706 COVID-19 diagnostic screening services to Defendants' insureds. (TAC P. 19.) Defendants refused to pay Plaintiff for these services, bypassed the out-of-network provider, and "claims to have reimbursed their own insureds an approximate aggregate sum of $575,000.00 . . ." (TAC P. 19.)

On August 28, 2025, Plaintiff filed a complaint against Defendants Anthem Blue Cross Life and Health Insurance Company and Does 1 through 25, alleging causes of action for: (1) breach of implied contract; and (2) goods and services rendered.

On December 2, 2025, Plaintiff filed a first amended complaint against Defendants Anthem Blue Cross Life and Health Insurance Company and Does 1 through 25, alleging causes of action for: (1) breach of implied contract; (2) goods and services rendered; and (3) statutory liability for violation of Senate Bill 510 and the CARES Act.

On February 19, 2026, Plaintiff filed a second amended complaint against Defendants Anthem Blue Cross Life and Health Insurance Company and Does 1 through 25, alleging causes of action for: (1) breach of implied contract; (2) goods and services rendered; (3) statutory liability for violation of Senate Bill 510, the CARES Act, and Insurance Code section 10110.7; (4) violation of California Business and Professions Code section 17200, et seq.; (5) open book account; (6) account stated; (7) unjust enrichment; and (8) declaratory relief.

On March 24, 2026, Defendant Anthem Blue Cross Life and Health Insurance Company ("Defendant") filed a demurrer without motion to strike.

On April 27, 2026, the court sustained the demurrer as to the first, third, fifth, sixth, and seventh causes of action and overruled it as to the second, fourth, and eighth causes of action. (04/27/26 Minute Order p. 14.) The court granted Plaintiff leave to amend. (04/27/26 Minute Order p. 14.)

On May 27, 2026, Plaintiff filed a third amended complaint against Defendant and Does 1 through 25, alleging causes of action for: (1) breach of implied contract; (2) good and services rendered; (3) violation of California Business and Professions Code section 17200, et seq.; (4) open book account; (5) account stated; and (6) declaratory relief.

On June 30, 2026, Defendant filed a demurrer without motion to strike. On July 15, 2026, Plaintiff filed an opposition. On July 21, 2026, Defendant filed a reply.

II. TIMELINESS

¿ " A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint." (Code Civ. Proc., Sec.¿430.40, subd. (a).)¿ Electronic service extends the deadline by two court days. (Code Civ. Proc., Sec. 1010.6, subd. (a)(3)(B).) Per Code of Civil Procedure section¿1005, subdivision (b), moving papers must be filed at least 16 court days before the set hearing, oppositions must be filed at least nine court days before the set hearing, and replies must be filed at least five court days before the set hearing.

Plaintiff served Defendant with the third amended complaint by electronic service on May 27, 2026. (TAC pdf pp. 3888-3889.) Defendant timely filed the demurrer thirty days, plus two court days for electronic service, after May 27, 2026. The demurrer, opposition, and reply were also timely filed under Code of Civil Procedure section 1005, subdivision (b).

III. MEET AND CONFER

¿ California Code of Civil Procedure section¿430.41, subdivision (a) requires parties to "meet and confer in person, by telephone, or by video conference" before the filing of a demurrer to attempt to resolve the objections raised in the demurrer.¿The demurring party is required to file and serve with the demurrer a declaration either confirming that parties were unable to resolve the issues raised by the demurrer despite having met and conferred or that the opposing party failed to meet and confer with the demurring party in good faith. (Code Civ. Proc., Sec.¿430.41, subd. (a)(3).)

The court continued the hearing on the demurrer and ordered Defendant's counsel to submit a supplemental declaration showing sufficient meet and confer efforts. (07/28/26 Minute Order p. 5.) Defendant's counsel submits a declaration stating they met and conferred with Plaintiff's counsel by telephone, but the parties agreed to proceed with the hearing. (Ellis Declaration (filed 08/21/26) P. 3.) Defendant satisfied the meet and confer requirement.

IV. LEGAL STANDARD

"A demurrer tests the pleading alone, and not the evidence or the facts alleged." (E-Fab, Inc. v. Accountants, Inc. Servs. (" E-Fab ") (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint's properly pleaded or implied factual allegations. (Id.) The court also considers "judicially noticed matters." (Id.)

A complaint must contain "[a]¿statement¿of the¿facts¿constituting the cause of action, in ordinary and concise language." (Code Civ. Proc., Sec.¿425.10, subd. (a)(1).) A "complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts." (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) ¿ A party may demur to a complaint because the complaint "does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., Sec. 430.10, subd. (e).) ¿

V. DISCUSSION

Defendant demurs to Plaintiff's first cause of action for breach of implied contract, fourth cause of action for open book account, and fifth cause of action for account stated. (Demurrer p. 3.) Defendant argues Plaintiff fails to state facts sufficient to constitute these causes of action. (Demurrer p. 3.)

First Cause of Action - Breach of Implied Contract: Defendant argues Plaintiff fails to plead facts showing a meeting of minds on a material term, what Defendant was obligated to pay for Plaintiff's services. (Demurrer pp. 7-8.) Defendant notes the third amended complaint is internally inconsistent because Plaintiff alleges Defendant agreed to pay $125.00 per test but also alleges in the attached exhibits that Plaintiff charged $130.25 for the services. (Demurrer p. 11.) Defendant also argues Plaintiff fails to plead other facts showing the existence of an implied contract. (Demurrer pp. 11-13.) Defendant notes there is no conduct alleged showing Defendant agreed to reimburse Plaintiff's posted cash price, billed charges, or other specific amount. (Demurrer p. 13.)

In opposition, Plaintiff indicates the alleged $130.25 was an "administrative billing" charge and does not defeat the allegation the parties agreed to the $125.00 rate. (Opposition p. 4.) Plaintiff also argues that "Defendant's own performance under this arrangement confirms their understanding and assent, because Defendants repeatedly accepted the benefits of the services, knew the posted statutory rate, and paid without objection." (Opposition p. 5.)

In reply, Defendant argues Plaintiff relies on facts not pled in the third amended complaint. (Reply p. 3.) Defendant argues Plaintiff's allegation that Defendant's conduct shows an implied-in-fact contract is insufficient because it is conclusory and does not show meeting of the minds. (Reply pp. 5-6.) Finally, Defendant argues its partial payments do not establish an implied contract. (Reply p. 6.)

Contracts require mutual assent and consideration. (Allied Anesthesia Medical Group, Inc. v. Inland Empire Health Plan (" Allied ") (2022) 80 Cal.App.5th 794, 808.) "An implied contract is one, the existence and terms of which are manifested by conduct." (Id.) "As to the basic elements, there is no difference between an express and implied contract. While an express contract is defined as one, the terms of which are stated in words [citation], an implied contract is an agreement, the existence and terms of which are manifested by conduct [citation.]" (Id.) Both types "require a meeting of minds or an agreement[.]" (Id.) "Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established." (Id.)

Plaintiff alleges: Starting January 1, 2021, Plaintiff provided COVID-19 diagnostic and screening services to Defendants' insureds. Plaintiff explicitly anticipated, and Defendants by their course of conduct understood, that the baseline statutory and agreed-upon price of the services was the published cash price of $125.00 per testAt times, there were additional services beyond the COVID-19 diagnostic and screening, and Defendants paid for these additional services. Through this uniform course of conduct, a valid implied-in-fact contract was formed between Plaintiff and Defendants. (TAC P. 11.)

Plaintiff also alleges it "maintained and published a uniform baseline cash price of $125.00 for its COVID-19 diagnostic testing and screening services on its publicly accessible website." (TAC P. 14.) Further, Plaintiff alleges: Despite clear knowledge that Plaintiff was continuing to perform daily diagnostic testing on their members, Defendants never instructed Plaintiff to cease providing services, nor did they issue notices that testing claims would be rejected in full. Instead, Defendants continued to accept the medical data, administrative discharge of statutory coverage duties, and healthcare benefits generated by Plaintiff's clinical operations. (TAC P. 16.)

The amount a party would pay for services "is a material term of any contract, such that, absent an allegation that the parties agreed on that amount, no implied-in-fact contract was formed." (Allied, supra, 80 Cal.App.5th at p. 810.) The facts alleged here are insufficient to show the parties agreed on the sum Defendant was obligated to pay for the COVID-19 diagnostic screening and testing. Plaintiff's theory appears to be that because Defendant paid for some services, then Defendant agreed to pay for all services.

However, that theory was rejected by the Court of Appeal in Pacific Bay Recovery, Inc. v. California Physicians' Services, Inc. (" Pacific Bay ") (2017) 12 Cal.App.5th 200, 216, with the Court stating: Pacific Bay maintains that it pled an implied contract in two ways. First, it argues Blue Shield's conduct of paying a portion of the invoices Pacific Bay submitted shows the existence of an implied contract. Not so. The fact that Blue Shield only paid for six of the 31 days of treatment undermines Pacific Bay's claim that the parties ever agreed to the same contractual terms.

By way of Blue Shield's conduct, it appears that it believed it was to pay for only six days. In contrast, Pacific Bay argues that it was to be paid for the entire length of treatment. Thus, the allegations in the FAC, based on Blue Shield's payment of some of the invoices, does not exhibit any mutual intent as to the essential terms of the implied contract.

Likewise, here, Plaintiff's allegation Defendant continued to pay the invoices does not show the existence of an implied contract. Plaintiff also alleges "Defendant's conduct accepting the testing services and paying for the services formed an implied-in-fact contract for those services." (TAC P. 21.) This paragraph suggests Plaintiff is alleging mutual assent exists because Defendant accepted the services. In Pacific Bay, Pacific Bay argued it alleged an implied contract by alleging it contacted Blue Shield to obtain prior authorization, Blue Shield representatives advised the subscriber was insured, covered, and eligible for coverage, Pacific Bay would be paid, and Pacific Bay "was led to believe that it would be paid a portion or percentage of its total billed charges, which charges correlated with usual, reasonable and customary charges." (Pacific Bay, supra, 12 Cal.App.5th at p. 216.)

The Court stated that the allegations lacked specific facts and "[a]t best, Pacific Bay's allegations show that Blue Shield admitted that the subscriber was covered under one of its health plans and that it would pay something for Pacific Bay's treatment of the subscriber. What type of treatment or the extent of treatment is not described." (Id.) The Court further noted that the parties did not reach an agreement as to a rate. (Id.)

Plaintiff alleges it "published a uniform baseline cash price of $125.00 for its COVID-19 diagnostic testing and screening services on its publicly accessible website." (TAC P. 14.) But Plaintiff does not allege specific facts showing Defendant agreed to pay this price. The demurrer on this ground is sustained.

Fourth Cause of Action - Open Book Account: Defendant argues Plaintiff fails to allege facts showing an open book account cause of action because Plaintiff alleges no contractual or fiduciary relationship. (Demurrer p. 14.) In opposition, Plaintiff argues it sufficiently alleges the breach of contract cause of action, so the derivative cause of action for open book account is also sufficiently alleged. (Opposition pp. 5-6.)

Under Code of Civil Procedure section 337a, subdivision (a): The term "book account" means a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or to backing but detachable therefrom, or (3) on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner. A "book account" does not include consumer debt.

Plaintiff does not sufficiently allege a contractual relationship. Plaintiff also alleges no fiduciary relationship. The demurrer on this ground is sustained.

Fifth Cause of Action - Account Stated: Defendant argues Plaintiff fails to allege an account stated cause of action because Plaintiff fails to allege an agreement as to the specific amount due or a promise to pay that amount. (Demurrer pp. 15-16.) In opposition, Plaintiff argues it sufficiently alleges a breach of contract cause of action, so the derivative cause of action for account stated is also sufficiently alleged. (Opposition pp. 5-6.)

"The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due." (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.)

Plaintiff alleges Plaintiff and Defendant "had a contract with each other involving the payment for COVID-19 testing and services performed by Plaintiff for Defendants and Defendants' members." (TAC P. 45.) Plaintiff alleges that "Plaintiff, in the regular course of business, kept an electronic account of the debits and credits involved in the contract between Plaintiff and Defendants." (TAC P. 46.) Plaintiff further alleges that "Defendants owe Plaintiff money for the services provided pursuant to their contract from previous financial transactions involving the payment for COVID-19 testing and services rendered for Defendants and Defendants' members." (TAC P. 47.)

Plaintiff also alleges "Defendants, by paying some of Plaintiff's claims in whole or in part, and by other words and conduct, agreed that Plaintiff is to be compensated for its COVID-19 testing and services, as contemplated by federal and California laws." (TAC P. 48.)

Plaintiff alleges no agreement between Plaintiff and Defendant, express or implied, on the amount due or a promise by Defendant, express or implied, to pay the amount due. Plaintiff's allegation that Defendant paid some claims is insufficient to show Defendant agreed to pay the amount due. (TAC P. 48.) The demurrer on this ground is sustained.

IV. LEAVE TO AMEND

"Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, 'leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.'" (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)¿ Plaintiff has had three opportunities to amend the complaint. The same issues present in the second amended complaint continue to be present in the third amended complaint. (04/27/26 Minute Order pp. 5-6, 11-12.) In opposition, Plaintiff identifies no facts that can be alleged to cure the defects identified above. Thus, the court finds no reasonable possibility Plaintiff can cure the defects identified above.

V. CONCLUSION

¿ For the foregoing reasons, the demurrer is sustained without leave to amend.

Dated: August 28, 2026 __________________________________ Hon. Eric Harmon Judge of the Superior Court