Judge: Mark C. Kim, Case: 19LBCV00632, Date: 2023-03-02 Tentative Ruling

Case Number: 19LBCV00632    Hearing Date: March 2, 2023    Dept: S27

1.     Allegations of the Complaint

Plaintiffs, Kamran Ghadimi, M.D. and Advanced Pain Treatment Medical Center filed this action against Defendants, Oscar and Kathy Abron for breach of contract, common counts, and quantum meruit.  Plaintiffs allege Defendants received medical services on 2/21/13, including a steroid injection for Kathy and six injections and a session of radio frequency nerve ablation for Oscar.  Plaintiffs allege Defendants, prior to receiving such services and as a condition of receiving such services, signed a written contract agreeing to pay any amount not covered by their insurance.  Plaintiffs allege they made multiple attempts to obtain payment from Defendants’ insurance, but as of March of 2018, Plaintiffs understood Defendants’ insurance carrier would not be making any payments for the services.  On 3/26/18, Plaintiffs requested payment from Defendants directly, but did not receive any written response.  Plaintiffs again requested payment from Defendants on 11/27/18, and indicated they would take legal action if Defendants did not respond within seven days.  Defendants did not respond. 


Defendants responded to the complaint by filing a demurrer.  Prior to the hearing on the demurrer, Plaintiffs filed a First Amended Complaint.  The allegations of the FAC are substantially the same as the allegations of the complaint.  On 3/25/21, the Court heard Defendants’ demurrer to the FAC.  The Court sustained the demurrer with leave to amend on the ground that the claim appeared to be barred by the statute of limitations; the Court ordered Plaintiffs to plead specific facts to circumvent the SOL bar.  The Court overruled the demurrer on the ground that the contract was insufficiently pled.  The Court granted a motion to strike Plaintiffs’ prayer for attorneys’ fees without leave to amend. 


On 5/05/21, Plaintiffs filed their Second Amended Complaint.  On 10/28/21, the Court heard and ruled on Defendants’ demurrer to the SAC.  The Court found the SAC was not sufficiently pled, but Plaintiff’s Declaration in support of the opposition to the demurrer contained facts that, if pled, would defeat a demurrer.  The Court therefore ordered Plaintiffs to file a Third Amended Complaint, which they did on 11/17/21. 


2.     Motion for Summary Judgment

a.     Initial Note

There are ten summary judgment motions on calendar today in ten related cases.  The motions are all substantially the same, and the Court will rule on them together. 


b.     Prior Demurrer Ruling on Statute of Limitations Issue

As noted above, the Court previously ruled on Defendants’ demurrer on the ground that the SOL bars Plaintiffs’ action against them.  Because the ruling is highly relevant to the instant summary judgment motion, the Court includes it here by way of reference.  The Court ruled:

The more difficult issue presented by way of the demurrer is the issue of the statute of limitations. The Court, in order to address this issue, has created a timeline of events.  The Court has used both the SAC, the two Ghadimi declarations, and all exhibits and judicially noticeable documents to create this timeline. 

·         2013 – Plaintiffs provide services to Defendants.  (Pled in FAC, no dates of service pled in SAC). 

·         2013-2014 – Ghadimi meets with Sam Alverado, ILWU-PMA’s Director of Health in Southern California and submits all non-paid claims to him with his promise of working on those to be paid.  (Supp. Dec. Ghadimi).

·         March of 2015 – Ghadimi receives a series of emails, attached to his supplemental declaration as Exhibit D. 

o    The first is email dated 12/04/14.  It is from someone at the third party administrator for the benefit plan (Zenith) to various persons at ILUW-PMA, including the manager of health benefits and the senior attorney.  It indicates the CCO (coastal claim office) suggests overturning the denial for various reasons. 

o    The second email is dated 1/07/15.  The email is from someone at ILWU (the plan) to the attorney for Pacific Martime (which also appears to be part of the plan) and various plan directors and trustees.  The 1/07/15 email indicates the Union Trustees agree to grant the appeal for this case, based on various problems with the medical billing records.  The email indicates the Trustees are directing Zenith to properly adjudicate the claims without resubmission. 

o    The third email is dated 1/16/15, and is from the senior attorney for Pacific Maritime Association and to various benefit directors and PMA trustees.  The email indicates Ghadimi, who is suspected of fraud and abuse, is billing the Plan for services purportedly rendered on various dates.  The provider noted inconsistencies, omissions, and duplications and found the records were unreliable.  The provider then noted other problems with the billings.  The provider then indicates it received cloned records that have been modified to include details specific to each date of service, and the provider agrees to remand the claim for an explanation of the significance of the duplication and why it warrants denial of the charges.  The provider is remanding the claim and directing Zenith to contact the provider regarding each of the questions raised and requesting specific information necessary to perfect the claim. 

·         Ghadimi declares that, after he received the emails in March of 2015, CCO started to pay his new claims in full more routinely, but TC3, which had been hired to investigate the prior claims, continued to deny old claims, which were paid slowly and sporadically. 

·         Ghadimi declares that both he and the patients were trying to call CCO, but the lines were busy and it took hours to get through to someone; once a patient or someone at his office got through, CCO just said it was behind on payments and working hard to process claims.

·         Ghadimi declares that he and his wife, who is in charge of his billing, went to the CCO office on 10/19/16, at which time Ghadimi answered all questions about his office and its billing charges. 

·         On 11/28/16, Ghadimi emailed a letter to the persons responsible and requested payment for past-due claims.

·         Ghadimi met with Alverado, ILWU-PMA’s director of health, on three occasions, and he said to be patient and to bring him all outstanding claims to work on.

·         In February of 2018, Ghadimi signed a tolling agreement with ILWU-PMA pursuant to which Ghadimi agreed not to sue any patients pending a March 2018 meeting for settlement.

·         However, ILWU-PMA canceled the meeting twice and stopped corresponding.

·         In June of 2018, 51 patients sued ILWU-PMA for failure to pay claims.  Plaintiffs then sued any patients who did not pay their bills, did not sue ILWU-PMA, and did not communicate with his office. 

·         On 10/24/19, Plaintiffs filed this lawsuit.


The parties agree the four-year statute of limitations for breach of written contract actions applies.  Defendants argue Plaintiffs had notice, no later than the March 2015 email, that the claims had been denied, and therefore the four-year statute of limitations had fun when Plaintiffs filed suit in October of 2019. 


The parties discuss the ruling of Vishva Dev, M.D., Inc. v. Blue Shield of California Life & Health Ins. Co. (2016) 2 Cal.App.5th 1218, 1226 in connection with this issue.  In Vishva, a doctor filed a lawsuit against a health insurance company for failure to pay amounts due on his medical billing claims.  The company moved for summary adjudication on the issue that some of the claims were barred by the statute of limitations.  The court of appeals held that the statute of limitations begins to run when the insurance company unequivocally states that the claims for payment are being denied in whole or in part, and the fact that the insurance company has an internal appeals process does not extend the statute of limitations.


Both parties argue Vishva supports their position.  Defendants argue Plaintiffs cannot rely on tolling of the statute of limitations during any period that the insurance claims were on appeal.  Plaintiffs argue Vishva makes clear that the date of breach is the date the insurance company unequivocally states an intent not to pay the claim, which the insurance company here did not do until March of 2018. 


Vishva is not directly on point to the issue here.  The issue here is whether and when the statute of limitations begins to run between a health care provider and an insured, not an insurance company.  The general rule, of course, is that the statute of limitations begins to run when the defendant breaches the contract.  As a matter of common sense, an insured could not breach a contractual obligation to a doctor unless and until the doctor submits the claim to insurance, the claim is denied or not paid in full, the doctor submits the claim or balance to the insured, and the insured refuses to pay. 


Vishva is also not directly on point because there is no evidence that there was a formal denial of Plaintiffs’ claims at any point prior to the filing of this lawsuit.  Notably, Ghadimi explains, at ¶24 of his supplemental declaration, that ILWU-PMA is not an insurance company but instead an Employee Welfare Benefit, and is therefore not required to follow Federal ERISA laws.  He explains that physicians and medical providers cannot sue ILWU-PMA for non-payments of medical claims, and therefore Plaintiff asked all patients to pay their bills or sue ILWU-PMA themselves for failure to pay. 


The Court finds the SAC, when read in connection with the declaration of Ghadimi and supplemental declaration of Ghadimi, is sufficient to plead timely filing.  Defendants’ argument that the 2015 email correspondence was a “denial” of the claim, similar to the denial in Vishna, and therefore the SOL commenced running at that time, is not well-taken.  While words like “denied” are thrown around in the various emails, it’s also clear that there is some sort of ongoing process at that point in the system.  It is not clear that there was a specific denial, with a specific date, and them some sort of internal appeals process.  It appears, instead, that ILWU-PMA continually asked for more information, and continually promised to pay claims once all information was received and satisfactory.  Under the circumstances, the Court cannot say, as a matter of law, that the SAC shows, on its face, that it is barred by the statute of limitations. 


Defendants, in their demurrer, also focus on the following portion of the Court’s 3/25/21 ruling:

Additionally, the Court notes that the FAC shows, on its face, that Plaintiffs may have been in breach of their own obligations under the terms of the parties’ contract.  The parties’ contract only permits Plaintiffs to collect from Defendants if Plaintiffs first submit the claims to Defendants’ insurance provider, and then the insurance provider denies the claims.  The Court is aware that medical doctors typically have contracts with insurance providers that require claims to be timely submitted, have mechanisms for submission of claims, have mechanisms for review of claims, including payment on the claims, denial of the claims, and further review of the claims, etc.  When Plaintiffs amend their complaint, they must attach a copy of any contract(s) with Defendants’ insurance carrier, and must include allegations specifying what steps they took to comply with all obligations under any existing contract(s).  They must also provide specific allegations concerning any steps taken by Defendants’ insurance carrier, any response Plaintiffs made, etc.  In other words, Plaintiffs must detail, from the date of service to the date they “realized” Defendants’ insurance carrier was denying the claims, all actions, communications, etc., between Plaintiffs and the carrier. 


Defendants argue Plaintiffs did not comply with this portion of the ruling, and therefore the demurrer should be sustained.  Defendants, however, explained that ILWU-PMA is not an insurance provider, but instead an Employee Welfare Benefit.  Thus, the Court’s understanding about how insurance claims work is not relevant in this case, and Plaintiffs adequately explained why in their opposition to the demurrer.  The demurrer on this ground is therefore overruled.


As noted above, the SAC is not a full and complete document.  Instead, it is buttressed by two declarations.  This is not proper.  All information necessary to respond to the pleading must be in the pleading itself.  The Court therefore sustains the demurrer with leave to add the information from the declarations into an amended complaint.  Defendants are admonished, however, that they must not demur to the TAC unless there is some new or different argument to be made other than failure to state the terms of a contract or statute of limitations. 


Plaintiffs must file a Third Amended Complaint, incorporating all information necessary to state a claim, within twenty days.  Defendants must file a responsive pleading within the statutory time thereafter. 


Defendants are ordered to give notice. 


c.     Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this 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 defense thereto.”  (Ibid.) 


The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. 

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)


Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 231 Cal.Rptr.3d. 814, 819-820.


Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)


d.     Evidentiary Objections

Plaintiffs filed objections with their reply papers.  A ruling on the objections is not necessary to a resolution of the merits of the motion, and the Court declines to rule on them.  CCP §437c(q).

e.     Analysis

Defendants’ evidence, submitted with their summary judgment motion, is not materially different from the evidence that was discussed in connection with the demurrer.  Defendants contend, as of 1/07/15, that a plan representative granted an appeal from a denial of payment.  The document relied upon, however, is a 1/16/15 email that was attached to Plaintiff’s declaration in support of his opposition to the demurrer to the SAC; the Court previously found the document was susceptible to Plaintiffs’ interpretation, which is that the document evidences an ongoing investigation of the claim, not a denial of the claim.


Defendants also provide evidence that there was an arbitration in 2015 and 2016, and they contend the evidence shows Plaintiffs “lost” the arbitration.  Defendants, in opposition to the motion, correctly note that the evidence shows there was a fruitless arbitration process due to Defendants’ insurer’s objection to a facility fee. 


Defendants contend there is evidence that, as of 2014, Plaintiffs knew the Plan had “basically stopped paying” for Plaintiffs’ claims.  While the evidence is susceptible to Defendants’ interpretation, the evidence does not show that any determination had been made, at that time, concerning Plaintiffs’ claims as they relate to Defendants’ treatment.  Defendants contend, similarly, that by late 2013, Plaintiffs had stopped treating plan patients because the plan would not pay the claims.  Defendants’ own fact 1, however, states that Defendant visited Plaintiffs in August of 2014 for treatment, which is the subject of this action.  The evidence in this regard is therefore disputed by Defendants’ own evidence.  Similarly, Defendants contend that, by the end of 2013, Plaintiffs were requiring all plan members to pay cash or credit card because the plan did not accept Plaintiffs’ claims; this fact is also belied by Defendants’ own fact 1, which again states that treatment rendered in 2014 and submitted to the claim for reimbursement is the subject of this lawsuit. 

The motion for summary judgment is denied for all of the reasons set forth in the Court’s 10/28/21 ruling on Defendants’ demurrer to the SAC. 


3.     Motion to Quash

Plaintiffs propounded a subpoena duces tecum for production of business records on the Coastwide Claims Office of ILWU-PMA, which sought production of any and all non-privileged documents from 2003 forward in Defendants’ claims file. 


Defendants move to quash the subpoena, contending it seeks production of private records and is overbroad.  Plaintiffs oppose the motion.  They argue attempts to meet and confer prior to bringing the motion were insufficient, and the subpoena can be limited to only relevant records.  They contend the records are necessary to establish their claims are not barred by the statute of limitations.  Defendants, in reply, contend meet and confer was sufficient and the subpoena is patently overbroad.


The Court agrees that the subpoena is overbroad.  It essentially seeks production of Defendants’ entire claims file over a 20-year period.  The Court will hear argument, at the time of the hearing, concerning how the subpoena can be limited so that it only seeks production of documents directly relevant to Defendants’ SOL defense.  It seems that the only records that would be relevant would be (a) records directly relating to Plaintiffs’ claims, and (b) general documents concerning how claims are processed, what obligations Defendants and the plan have to one another, etc. (documents that do not relate to Defendants’ medical care in connection with other providers). 


4.     Conclusion

Defendants’ summary judgment motion is denied.  The related summary judgment motions are also denied.  


The Court will hear argument concerning modifications to the subject subpoena at the time of the hearing.


The Court asks any party appearing at the hearing to make arrangements to do so remotely.


Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.