Judge David S. Cunningham, Case 19STCV05681 2023-02-14 Tentative Ruling

Judge: David S. Cunningham, Case: 19STCV05681, Date: 2023-02-14 Tentative Ruling

Moving Party: Cedars-Sinai Medical Center (“Cedars-Sinai” or “Defendant”)

Defendant’s first and second objections to Plaintiff’s trial plan are overruled.

More information is needed to decide Defendant’s third objection. The feasibility of applying Plaintiff’s damages formula to all putative class members is unclear. The Court anticipates discussing this issue with the attorneys during oral arguments.

This is a class action. The operative complaint is the second amended complaint (“SAC”). Plaintiff alleges that Cedars-Sinai charges an undisclosed fee – the ER Visitation Fee – for seeking treatment at Cedars-Sinai’s emergency room.

The initial complaint alleged causes of action for declaratory relief, violation of the Unfair Competition Law (“UCL”), and violation of the Consumer Legal Remedies Act (“CLRA”).

On 12/10/20, Judge Ann Jones granted Plaintiff’s first motion for class certification as to all three causes of action.

On 4/27/21, Judge Jones denied Cedars-Sinai’s motion for judgment on the pleadings.

Then Cedars-Sinai filed a petition for writ of mandate, which the Court of Appeal denied.

On 4/18/22, this Court granted Plaintiff leave to file the first amended complaint (“FAC”), adding a cause of action for breach of contract.

On 6/16/22, the Court overruled the demurrer as to the breach of contract and declaratory relief causes of action and sustained it with leave to amend as to the UCL and CLRA causes of action.

On 9/30/22, Plaintiff moved to certify the breach of contract cause of action and filed a trial plan.

Defendant’s first objection to the trial plan is that “large swaths of patients do not have an actionable claim as a matter of law in that they had prior knowledge/notice that Cedars-Sinai would assess an ED Visitation Fee.” (Objection to Trial Plan, p. 2.)

The Court disagrees. The first objection is overruled for the reasons stated in the class certification tentative ruling:

The Court’s task at the certification stage is to assess whether common issues predominate, “not [to] consider the merits of the claim[.]” (Edmon & Karnow, supra, at ¶ 14:100.) Defendant’s own discovery responses show common policies of (1) requiring patients to sign the COAs, and (2) charging ER Visitation Fees. (See, e.g., Carpenter Decl., Ex. E, p. 7 [attaching response to special interrogatory no. 6, which states that state that “[e]ach patient was/is required to sign a [COA] agreement”]; see also, e.g., id. at Ex. C, p. 4 [attaching response to request for admission no. 5, which admits that “Defendant’s policy was to request its emergency room patients or their guarantors to sign its standard CONTRACT”]; id. at Ex. C, p. 3 [attaching response to request for admission no. 1, which admits that “Defendant had a policy and practice of billing emergency room patients who visited and received treatment at Defendant’s emergency room an ER LEVEL FEE”].) The COAs are common form contracts; they all contain the “services rendered” language. (Id. at Ex. B [attaching the COAs utilized during the putative class period].) Given these commonalities, it is a predominating common question whether charging the ER Visitation Fees breached/breaches the “services rendered” language, especially since Plaintiff claims ER Visitation Fees “do not relate to the care of an individual patient who is charged the Fee, and are not for services rendered to the patient[.]” (Motion, p. 11 n.5.)

. . . [T]he Court doubts that it will need to conduct individualized inquiries as to knowledge. (See Opposition, pp. 16-18.) Plaintiff contends the COAs expressly prohibit ER Visitation Fees because they are not for services rendered. (See Reply, p. 6.) The core question is whether the contractual language “permits or forbids Defendant from charging” them. (Id. at p. 7.) It is a predominating common question that necessitates interpretation of common form contract terms according to an objective standard, notwithstanding what some patients allegedly may have known. (See, e.g., id. at pp. 8-9.)

(2/14/23 Tentative Ruling Re: Motion for Class Certification, pp. 7-8, footnotes omitted.)

Next, Defendant objects on the ground that, even if the contracts are “evaluated under a ‘reasonable person’ standard[,]” individual issues predominate because some putative class members “expected to be charged an ED Visitation Fee[.]” (Objection to Trial Plan, p. 3.)

The Court disagrees. The second objection is overruled because, in effect, it is a rehash of the first objection, and individual issues do not predominate. (See 2/14/23 Tentative Ruling Re: Motion for Class Certification, pp. 4-9; see also, e.g., Reply Re: Objection to Trial Plan, p. 4.)

Defendant’s third objection to the trial plan is that “there is no class-wide method to compute damages.” (Objection to Trial Plan, p. 3 [“Fundamentally, there is no common method to exclude class members who do not have a contract claim against Cedars-Sinai (i.e., patients who understood that Cedars-Sinai would assess an ER Visitation Fee for admission to the ED). Moreover, the amount billed by Cedars-Sinai for the ER Visitation Fee varied from patient-topatient based on a myriad of factors. Therefore, each patient encounter would have to be individually reviewed to determine: (1) the total amount actually billed to a patient, (2) the amount charged specific to the ED Visitation Fee, (3) the percentage of the ED Visitation Fee charge as compared to the total amount billed to a patient, (4) the out-of-pocket payment(s) made by a patient towards a bill, and (5) the corresponding pro-rata damage amount owed to each patient. That computation is not feasible for a class that numbers more than 400,000. Also, Plaintiff’s suggested formula does not account for patients who made out-of-pocket payments for less than the full balance due on a bill. For example, if Cedars-Sinai billed a patient $100.00 with $10.00 allocated to the ER Visitation Fee, and the patient remits payment in the amount of $50.00, there is no universal method to determine how much of the $50.00 payment is actually attributable to the ER Visitation Fee (i.e., $10.00, $5.00, $0.00)[.]”].)

The Court needs more information to decide this objection. As explained in the class certification tentative ruling, Plaintiff’s damages formula is viable and can be used to calculate pro rata damages, but the feasibility of applying it to 400,000 patients should be discussed at the hearing:

* Defendant contends Plaintiff’s damages formula is deficient because “there is no common method to exclude . . . patients that knew an ER Visitation Fee would be assessed[.]” (Opposition, p. 19.) The Court disagrees. One, the contention is based on Defendant’s unavailing knowledge argument. Two, the formula appears functional and effective in terms of evaluating the patients’ pro rata damages. Plaintiff’s trial plan states that “each member of the Breach of Contract Class will be entitled to recover that percentage of the amount paid which is attributable to the ER Visitation Fee.” (Trial Plan, pp. 4-5.) For instance, “if the total bill is $10,000, the . . . Fee is $4,000 (40% of the $10,000 total), and the Breach of Contract Class member paid $500 on their bill, they would recover $200 (40% of their payment).” (Id. at p. 5.) “Similarly, with respect to outstanding balances, if the outstanding balance due . . . is $500, the Breach of Contract Class member would be entitled to a reduction of 40% of the outstanding balance, or a $200 reduction in the outstanding balance due.” (Ibid.) Plaintiff represents that data “contained in Defendant’s electronic records” can be plugged into the formula for any member. (Reply, p. 14.)

* Defendant contends the formula “does not account for patients who made out-of-pocket payments for less than the full balance due on a bill.” (Opposition, p. 20.) To illustrate, Defendant argues that, “if Cedars-Sinai billed a patient $100.00 with $10.00 allocated to the ER Visitation Fee, and the patient remits payment in the amount of $50.00, there is no universal method to determine how much of the $50.00 payment is actually attributable to the ER Visitation Fee (i.e., $10.00, $5.00, $0.00)[.]” (Ibid.) The Court disagrees. Plaintiff’s formula is suited to handle this situation. “Where 10% of the patient’s bill is attributable to the ER Visitation Fee and the patient pays only $50 of the $100 due,” “the patient would receive a refund of 10% of the $50 payment and 10% of the remaining $50 balance, for a total of $10 in benefits.” (Reply, p. 16.)

The potential caveat pertains to Defendant’s argument that computing the individual damages amounts “is not feasible for a class that numbers more than 400,000.” (Opposition, p. 19.) Defendant claims:

[T]he amount billed by Cedars-Sinai for the ER Visitation Fee varied from patient-to-patient based on the myriad of factors discussed, including whether the patient was insured and the terms of the policy itself; there is no “fixed” or “flat” charge that is easily identifiable. Therefore, each patient encounter would have to be individually reviewed to determine: [1] the total amount actually billed to a patient, [2] the amount charged specific to the ED Visitation Fee, [3] the percentage of the ED Visitation Fee charge as compared to the total amount billed to a patient, [4] the out-of-pocket payment(s) made by a patient towards a bill, and [5] the corresponding pro-rata damage amount owed to each patient.

All of the information is electronically available in Defendant’s records, and these calculations can easily be done, essentially with the push of a button. Indeed, Defendant itself has already produced a spreadsheet in discovery which contains much of the necessary information. The computation is more than “feasible;” it is extremely simple to do electronically, regardless of the size of the Breach of Contract Class. The damage calculations can readily be performed electronically on an Excel spreadsheet in a matter of seconds, based on known information, which Defendant has already demonstrated it has available. There is no difficulty whatsoever in calculating individual damages, whether for 400,000 or 4,000,000 patients. The simple, basic point is that no individual trials or hearing will be necessary when damages can be calculated electronically.

Neither side cites supporting evidence. While Plaintiff’s formula works, the ease and manageability of utilizing it to ascertain 400,000 patients’ damages amounts is unclear. This issue should be addressed during oral arguments, and, depending on what is said, the Court might continue the hearing to give the parties a chance to supplement the record.

Opposing Party: Cedars-Sinai Medical Center (“Defendant” or “Cedars-Sinai”)

Whether a normal class or just an issue class should be certified depends on the feasibility of applying Plaintiff’s damages formula to all putative class members. Further discussion – and maybe evidence – is needed. The Court anticipates addressing this issue with the attorneys during oral arguments.

The initial complaint alleged causes of action for declaratory relief, violation of the Unfair Competition Law (“UCL”), and violation of the Consumer Legal Remedies Act (“CLRA”).

On 12/10/20, Judge Ann Jones granted Plaintiff’s first motion for class certification as to all three causes of action.

On 4/27/21, Judge Jones denied Cedars-Sinai’s motion for judgment on the pleadings.

Then Cedars-Sinai filed a petition for writ of mandate, which the Court of Appeal denied.

On 4/18/22, this Court granted Plaintiff’s motion for leave to file the first amended complaint (“FAC”), adding a cause of action for breach of contract.

On 6/16/22, the Court overruled the demurrer as to breach of contract and declaratory relief causes of action and sustained it with leave to amend as to the UCL and the CLRA causes of action.

On 7/22/22, Cedars-Sinai filed a demurrer to the SAC, challenging the UCL and CLRA causes of action.

On 9/30/22, Plaintiff filed a motion to certify the breach of contract cause of action.

The issue now is whether the second motion for class certification should be granted.

The plaintiff bears the burden of demonstrating that class certification is proper. (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460; see also Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 654.) To do so, [t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.)

A class is “ascertainable when it is defined ‘in terms of objective characteristics and common transactional facts’ that make ‘the ultimate identification of class members possible when that identification becomes necessary.’” (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 980.)

“The class must be ‘numerous’ in size. But there is no fixed minimum or maximum number . . . The numerosity analysis is limited to how many individuals fall within the class definition and whether their joinder is impracticable, not how many ‘net’ class members there might be after considering affirmative defenses.” (Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2022) ¶ 14:21, emphasis in original.)

“A party seeking class certification bears the burden of satisfying the requirements of Code of Civil Procedure section 382, including numerosity, and the trial court is entitled to consider ‘the totality of the evidence in making [the] determination’ of whether a ‘plaintiff has presented substantial evidence of the class action requisites.’” (Soderstedt v. CBIZ S. California, LLC (2011) 197 Cal.App.4th 133, 154.)

All individuals who, from February 22, 2015 to the date of class certification, (1) received treatment at Cedars-Sinai Medical Center’s [] emergency room, (2) signed Defendant’s form Conditions of Admission [(“COA”)] Contract (personally or through an agent), (3) were charged an ER Visitation Fee, and (4) made a payment and/or have an outstanding balance due. (For purposes of this class definition, ER Visitation Fee refers to Defendant’s charges for emergency department visits that are billed using one of five Current Procedural Terminology [] codes: 99281, 99282, 99283, 99284, and 99285) (the “Breach of Contract Class”).

Excluded from the Breach of Contract Class are any officers or directors of Defendant, together with the legal representatives, heirs, successors, or assigns of Defendant, and any judicial officer assigned to this matter and his or her immediate family.

* “The Breach of Contract Class is defined in terms of objective characteristics and common transactional facts that make the ultimate identification of Breach of Contract Class members possible when that identification becomes necessary.” (Id. at p. 14.)

* The “Breach of Contract Class members here can actually be identified, and readily so.” (Ibid.) “First, Defendant’s electronic records will clearly show who received treatment at Defendant’s emergency room during the Breach of Contract Class Period.” (Ibid.) “Second, with respect to whether there is a signed COA, Defendant’s policy was to request that all emergency room patients sign its COA.” (Ibid.) “Third, with respect to whether a patient was charged an ER Visitation Fee, again, Defendant’s policy was to charge such a Fee for all emergency room visits.” (Id. at 15.) “Finally, consistent with Defendant’s admission that it maintains electronic billing records for its patients, and as clearly shown in the spreadsheet produced by Defendant in discovery [citation], Defendant’s electronic records will also easily identify those patients who made a payment and/or have an outstanding balance on their account.” (Ibid.)

* Numerosity is satisfied. “[F]or most of the Breach of Contract Class Period, from April 1, 2015 through June 30, 2022, Defendant had 418,185 emergency room patient visits.” (Id. at p. 16.) “Defendant had a policy to request that all emergency room patients sign its COA, as well as a policy to bill ER Visitation Fees to all patients who presented to the emergency room.” (Ibid.) “Further, as shown on the spreadsheet produced by Defendant in discovery in this case [citation], a very large number of emergency room patients have made a payment and/or have an outstanding balance due.” (Ibid.)

Defendant contends the class definition “consist[s] of numerous individuals who have no viable claims against Cedars-Sinai as a matter of law.” (Opposition, p. 20 [arguing: (1) “Plaintiff’s theory requires that [A] the COA does not authorize the ER Visitation Fee and [B] the patient did not otherwise authorize the fee[;]” and (2) “Plaintiff’s proposed class, as evidenced, necessarily includes swaths of current and former patients who knew of — and authorized — the ER Visitation Fee”], emphasis in original.)

The Court agrees with Plaintiff. The proposed definition includes sufficient objective characteristics and common transactional facts, and Plaintiff demonstrates reasonable means of identification and more than enough putative class members to establish numerosity. (See Motion, pp. 14-16 [citing evidence].)

Defendant’s overbroad argument is speculative and unavailing. (See, e.g., Reply, pp. 16-17.) It is based on a compendium of declarations filed in support of Defendant’s opposition to the first motion for class certification. (See Opposition, p. 20.) The compendium is not part of the record here, and Defendant failed to file a request for judicial notice. While it was part of the record before Judge Jones, she held that common issues predominate and granted certification. Furthermore, as discussed in the commonality section, individualized issues do not predominate with respect to knowledge.

[The] breach of contract cause of action will require the trier of fact to interpret the language and meaning of Defendant’s common COA. The overriding common question presented is whether Defendant’s COA, which only allows Defendant to charge for services actually rendered to the patient, and only requires patients to pay for services actually provided to them, permits Defendant to charge, and requires Plaintiff and Breach of Contract Class members to pay, an ER Visitation Fee, which Plaintiff alleges (and which expert testimony will show, on a common basis) is not a charge for services rendered to a patient, but rather, is a charge intended to cover the general overhead, operational, and administrative expenses in operating an emergency room on a 24-hour a day, 7-day a week, basis. Notably, Plaintiff’s breach of contract interpretation theory involves (1) a common admissions COA form, and (2) Defendant’s common conduct in billing emergency room patients ER Visitation Fees which Plaintiff contends are not authorized by the COA. The predominating issues to be decided are whether ER Visitation Fees are fees for services actually rendered to individual patients and whether Defendant’s COA allows Defendant to charge ER Visitation Fees. The answers to these questions, underlying Plaintiff’s cause of action for breach of contract, will be proved by common facts.

* “[C]ontract interpretation is subject to an ‘objective,’ common standard[.]” (Motion, p. 18.)

* “[I]ndividual damage issues” “do not preclude class certification.” (Ibid.)

* “Defendant’s ‘defense’ arguments . . . present predominating common issues.” (Id. at p. 20.)

* Plaintiff’s interpretation argument is misplaced. The key issue in assessing commonality for the breach of contract issue is the issue of breach, an individualized issue. It will be necessary to conduct “individualized inquiries into each putative class member’s personal knowledge or personal authorization of the ER Visitation Fee — which makes this particular cause of action ill-suited for class treatment.” (Opposition, pp. 16-18 [citing Thompson v. Automobile Club of Southern California (2013) 217 Cal.App.4^th 719 for the proposition that “the mere existence of a form contract is insufficient to determine that common issues predominate when the questions of breach and damage are essentially individual” and analogizing Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442].)

* Adjudicating Plaintiff’s contract theory “will require an individualized inquiry into precisely what services were ‘rendered’ to each class member.” (Id. at p. 18.) “Such individualized inquiries into a party’s performance under a contract are grounds to deny certification.” (Ibid. [arguing that “the only means to resolve that issue is to obtain privacy waivers and releases from every class member”].)

* “[T]he amount and entitlement to damages requires individualized inquiries.” (Ibid.) “If Plaintiff successfully proves that the COA did not authorize Cedars-Sinai to assess the ER Visitation Fee, the Court will become inundated with hundreds of thousands of min-trials regarding each class member’s right to recover damages following ‘class judgment.’” (Id. at p. 19.) “A putative class member is not harmed merely because Cedars-Sinai ‘charged’ an ER Visitation Fee in connection with a visit, as the actual reimbursement rate associated with the charges vary widely amongst the class.” (Ibid.) “For example, more than 50% of the visits to Cedars-Sinai’s ED during the putative class period resulted in a 100% insurance cost share, meaning there were no actual charges to the patient, and the patient had $0.00 out-of-pocket responsibility.” (Ibid.) “In fact, two-thirds of all of the visits to Cedars-Sinai’s ED during the putative class period resulted in an insurer covering 90-100% of the allowed amount, with little (or no) out-of-pocket obligation by the patient.” (Ibid.) “The evidence is clear that the putative class was not uniformly damaged or impacted by the alleged misconduct, and more than 50% of the putative class paid nothing, and cannot claim to have been harmed by the alleged breach whatsoever.” (Ibid.)

* Knowledge is not an element of the breach of contract cause of action. (See Reply, pp. 8-9; see also id. at 10-13 [claiming Thompson and Fletcher are distinguishable].)

* Determining which “services were rendered” is unnecessary. (See id. at pp. 13-14.)

* “[I]ndividual damage calculations do not defeat class certification.” (Id. at p. 14, bolding and capitalizing deleted.)

It is useful to begin the analysis by explaining the theory behind Plaintiff’s breach of contract cause of action. Plaintiff describes the theory this way:

Plaintiff’s breach of contract claim is based on Defendant’s breach of its common form COA used in its emergency room, which provides for payment only for “services” actually “rendered” to a patient, but does not authorize Defendant to charge, and does not include an agreement by a patient to pay, a separate ER Visitation Fee, which is not a fee for “services rendered” at all, but rather, is a separate fee designed to cover the administrative and overhead expenses of operating an emergency room on a 24-hour a day, 7-day a week basis.

The agreement set forth in Defendant’s common form COA [citation] is to pay for hospital services “rendered to the patient,” and the type and nature of such services which were consented to and contemplated within the COA are described in multiple sections. The “Financial Agreement” section of the COA (¶ 10) specifically refers to the patient “receiv[ing] services from the hospital.” Similarly, the “Assignment of Insurance Benefits” section of the COA (¶ 11) refers to an assignment of benefits for “emergency services if rendered.” The “Health Plan and Insurance” section of the COA (¶ 12) provides only that the patient agrees to pay “for all services rendered to me by the hospital.” [emphasis added] And the “Financial Responsibility Agreement by Person Other Than the Patient or the Patient’s Legal Representative” section, which refers to “the terms of Financial Agreement, Assignment of Insurance Benefits, and Health Plan Obligation provisions above,” provides for “financial responsibility for services rendered to the Patient” [emphasis added]. It is this clear limitation in the COA as to what services are consented to and agreed upon for payment that lies at the heart of Plaintiff’s breach of contract claim. The limitation of services for which a patient agrees to pay are those services actually rendered to a patient, as expressed throughout the COA. This is particularly so when the Contract is read as a whole.

In the SAC, Plaintiff clearly alleges that ER Visitation Fees are not fees for services actually rendered to a patient. As alleged in Paragraph 2 of the SAC:

Defendant’s ER Visitation Fee is a fee billed to emergency room patients simply for seeking treatment in the emergency room; it is separate from, independent of, and in addition to the charges for the individual items of treatment and services provided to a patient. Rather than being tied to the individual items of treatment and services a patient receives in the emergency room, a separate ER Visitation Fee is charged to all patients who receive treatment in the emergency room, regardless of what services and treatment they actually receive and are charged for. These ER Visitation Fees are basically designed to cover Defendant’s general operating, administrative, and overhead costs incurred in operating an emergency room on a 24-hour, 7 day a week basis. They are not fees for services actually rendered to the patient.

[Citation.] Because the ER Visitation Fee is not a charge for “services rendered” to the patient, it is not authorized by Defendant’s COA, and the COA contains no agreement by a patient to pay such a Fee. . . .

Defendant’s demurrer to the breach of contract cause of action was overruled. This Court reasoned that Defendant’s interpretation – the COA “covers ER Visitation Fees” – “appears to make the ‘services rendered’ term surplusage.” (6/16/22 Tentative Ruling Re: Demurrer, p. 7.) The Court held that “the term should be given meaning” “[a]t the pleading stage,” “it at least creates an ambiguity[,]” and “[e]vidence is needed to determine the parties’ intent and the correct construction.” (Ibid.) In essence, the Court found that interpretation of the COA is a legal issue – a merits issue – that should be resolved via summary judgment or trial.

First, the Court doubts that it will need to conduct individualized inquiries as to knowledge. (See Opposition, pp. 16-18.) Plaintiff contends the COAs expressly prohibit ER Visitation Fees because they are not for services rendered. (See Reply, p. 6.) The core question is whether the contractual language “permits or forbids Defendant from charging” them. (Id. at p. 7.) It is a predominating common question that necessitates interpretation of common form contract terms according to an objective standard, notwithstanding what some patients allegedly may have known. (See, e.g., id. at pp. 8-9.)[2]

Second, figuring out which services were rendered to individual patients is unnecessary. (See Opposition, p. 18.) As Plaintiff points out, “[t]he common question presented is whether ER Visitation Fees, uniformly billed to all emergency room patients, are fees for ‘services rendered’ to a patient, or whether they are . . . separate fees designed to cover the overhead, administrative, and operating costs of operating an emergency room on a 24-hour, 7-day a week basis.” (Reply, p. 14, emphasis in original.) “The answer to this question . . . has nothing to do with what individual ‘services’ were rendered to a particular patient.” (Ibid.)

Third, except for one potential caveat, the Court finds Defendant’s damages arguments unpersuasive:

* Defendant claims “more than 50% of the visits” to Defendant’s emergency room “resulted in a 100% insurance cost share, meaning . . . the patient[s] had $0.00 out-of-pocket responsibility.” (Opposition, p. 19.) This is a red herring since Plaintiff concedes that “patients with no out-of-pocket responsibility are not members of the Breach of Contract Class.” (Reply, p. 14, emphasis in original.)

If Plaintiff ends up failing to show feasibility, the Court believes there is enough commonality to warrant certification of an issue class. (See Edmon & Karnow, supra, at ¶ 14:103.5 [instructing that “[a] class may be certified solely for determination of liability issues (e.g., whether [a] product was defective), with causation and damages for each class member to be determined in separate trials”]; see also Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4^th 908; Sarun v. Dignity Health (2019) 41 Cal.App.5^th 1119.)

“The ‘test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’” (Edmon & Karnow, supra, at ¶ 14:29 [quoting Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4^th 362, 375].)

“That the purported class representative's claims must be ‘typical’ does not mean they must be identical to the claims of other class members. It is sufficient that the representative is similarly situated so that he or she will have the motive to litigate on behalf of all class members.” (Id. at ¶ 14:29.2.) “Thus, it is not necessary that the class representative have personally incurred all of the damages suffered by each of the other class members.” (Ibid., emphasis in original.)

Plaintiff contends she is typical because the contract claim “is exactly the same for Plaintiff as with every Breach of Contract Class member, since it arises from the same contract language, the same practice or course of conduct that gives rise to the claims of the other Breach of Contract Class members, and the same legal theory.” (Motion, p. 21 [stating that “[t]ypicality is based on the fact that Defendant’s common form COA does not authorize Defendant to charge, and does not obligate Plaintiff or Breach of Contract Class members to pay, an ER Visitation Fee”].)

Defendant asserts that Plaintiff is atypical because (1) “she is subject to individualized defenses related to personal knowledge and authorization[,]” (2) she “was insured under a commercial plan, which is representative of less than 1/3 of all patient encounters during the putative class period[.]” and (3) “she had an insurance cost share equal to 72.1%, which is below the 25^th percentile of insurance cost sharing during the period.” (Opposition, p. 21, emphasis in original.)

The Court agrees with Plaintiff. Substantively, her personal contract claim – the alleged breach, harm, etc. – is identical to the class contract claim. She is typical.

Differences in insurance coverage go to damages and individual recoveries. The Court reiterates that Plaintiff’s formula provides a common method for calculating the patients’ pro rata damages, and feasibility will be discussed at the hearing.

“The class representative, through qualified counsel, must be capable of ‘vigorously and tenaciously’ protecting the interests of the class members.” (Edmon & Karnow, supra, at ¶ 14:36.)

“The prospective class representative must file a declaration stating that he or she desires to represent the class and understands the fiduciary obligations of serving as class representative. Counsel’s declaration to that effect will not suffice.” (Ibid.)

The Court finds that Plaintiff’s evidence meets her burden. (See Plaintiff’s Decl., ¶¶ 1-2, 6-7; see also Carpenter Decl., ¶¶ 1-10; Kramer Decl., ¶¶ 1-11.)

“In certifying a class action, the court must also conclude that litigation of individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently.” (Duran v. U.S. Bank Nat. Assn. (2014) 59 Cal. 4th 1, 28-29.) “Trial courts must pay careful attention to manageability when deciding whether to certify a class action. In considering whether a class action is a superior device for resolving a controversy, the manageability of individual issues is just as important as the existence of common questions uniting the proposed class.” (Id. at 29.)

Defendant claims the class method is inferior because (1) “there are highly individualized issues unique to both liability and damages[,]” and (2) “Plaintiff ignores that her recourse is to pursue an administrative action with the Department of Public Health to curb the purported improper practices of Cedars-Sinai.” (Opposition, p. 22.)

The Court rejects point (2). Per the statute’s plain language, “any person may file a claim with the department alleging a violation of this article” – i.e., Article 11, the Payers’ Bill of Rights. (Cal. Health & Saf. Code § 1339.54, emphasis added.) The contract claim is not about violations of Article 11; it is about Defendant’s alleged breaches of the COA terms. Section 1339.54 is inapplicable and does not present a superior means of adjudicating the contract claim.

Apart from the potential caveat concerning the feasibility of applying Plaintiff’s damages formula to 400,000 patients, this prong is satisfied. The class method is hands down the best, most efficient way to address the common contract interpretation issue.

And, to repeat, if Plaintiff ends up failing to demonstrate feasibility, the Court is inclined to certify an issue class.

[1] The moving brief states:

Plaintiff will establish through expert testimony that the bundled ER Visitation Fees Defendant charges are intended to cover such items as salaries for emergency room registration personnel around the clock; salaries for emergency room janitorial services personnel around the clock; salaries for management staff around the clock; amortized cost of office equipment, tables, chairs, etc. necessary for an emergency room; equipment maintenance, depreciation, repairs, and replacement; utilities in the emergency room, such as air conditioning, heating, electricity, telephone, and internet; supplies in the emergency room; printing and brochures; administrative expenses; billing personnel; collection personnel; accounting costs and fees; security personnel; personnel for assistance with financial aid and Medi-Cal; advertising; website maintenance; insurance; legal fees; computer equipment and software; property taxes; etc.

(Ibid.)

[2] This distinction makes Thompson and Fletcher distinguishable.

The initial complaint alleged causes of action for declaratory relief, violation of the Unfair Competition Law (“UCL”), and violation of the Consumer Legal Remedies Act (“CLRA”).

On 12/10/20, Judge Ann Jones granted Plaintiff’s first motion for class certification as to all three causes of action.

On 4/27/21, Judge Jones denied Cedars-Sinai’s motion for judgment on the pleadings.

Then Cedars-Sinai filed a petition for writ of mandate, which the Court of Appeal denied.

On 4/18/22, this Court granted Plaintiff leave to file the first amended complaint (“FAC”), adding a cause of action for breach of contract.

On 6/16/22, the Court overruled the demurrer as to the breach of contract and declaratory relief causes of action and sustained it with leave to amend as to the UCL and CLRA causes of action.

On 7/22/22, Cedars-Sinai filed a demurrer to the SAC, challenging the UCL and CLRA causes of action.

On 112922, Cedars-Sinai filed an opposition to the second motion for class certification.

The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(Cal. Rules of Court, rule 2.550(d), emphasis added.) “These findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. (Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2021) ¶ 9:418, emphasis in original.)

Plaintiff asks the Court to seal portions of two documents: (1) Defendant’s opposition to the second motion for class certification; and (2) Plaintiff’s deposition transcript. Plaintiff contends the documents contain her private health information. (See, e.g., Motion, p. 4 [claiming the information is protected under the Health Insurance Portability and Accountability Act].)

* Defendant’s opposition brief – “the sentences starting and ending on pages 13:7-8, 13:17-19, and 13:20-22[.]” (Motion, p. 3; see also Carpenter Decl., ¶ 2 [same].)

* Declaration of Geoffrey Thorne, Exhibit 1 – “pages/lines[] 98:24-99:4, 99:11-12, 99:15-23, 104:24-25, 105:24-106:2, 106:8-15, 106:21- 107:2, 108:4-5, 108:13-14, 108:20-109:8, 113:6-8, 113:11-16, 114:16-21, 115:12-15, 115:22-25, 116:19-21, 116:23-24, 118:1-3, 118:11-12, 118:20, 118:23-24, 119:1-2, 119:5-24, 120:1-2, 120:11- 25, 131:11-12, 149:2-5, 149:10-150:3, 150:6-9, 150:13-18, 151:4, 201:10-12, and 208:9-10[.]” (Motion, p. 3; Carpenter Decl., ¶ 2 [same].)

* “‘[A] person’s medical history . . . falls within the zone of informational privacy protected’ by the state and federal Constitutions.” (Oiye v. Fox (2012) 211 Cal.App.4^th 1036, 1068; see also Grafilo v. Wolfsohn (2019) 33 Cal.App.4^th 1024, 1034 [stating that the “right to privacy with respect to information contained in . . . medical records” is “well-settled”]; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4^th 1, 52 [stating that a plaintiff’s “interest in the privacy of medial treatment and medical information is [] a protectable interest”]; Cross v. Superior Court (2017) 11 Cal.App.5^th 305, 325 [stating that “patients have a state constitutional right to privacy that protects information contained in their medical records”]; Medical Bd. of California v. Chiarottino (2014) 225 Cal.App.4^th 623, 631 [stating that “[i]t is established that patients do have a right to privacy in their medical information under out state Constitution”]; People v. Martinez (2001) 88 Cal.App.4^th 465, 474-475 [stating that “[i]t is settled that a person’s medical history . . . falls within the zone of informational privacy protected under Section 1” of the California Constitution].)

* An overriding interest exists in protecting Plaintiff’s confidential and private medical information from disclosure to the public.

* There is a substantial probability that the medical information will be disclosed to the public and that Plaintiff will suffer prejudice if it is not sealed.

* The proposed sealing is narrowly tailored and the least restrictive means of protection since it only seals the medical information.