Judge: Robert B. Broadbelt, Case: 19STCV38659, Date: 2022-10-20 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV38659    Hearing Date: October 20, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant California Physicians’ Service dba Blue Shield of California

RESPONDING PARTY:       Unopposed

(1)   Defendant’s Motion to Seal

MOVING PARTY:                Plaintiff David Ward

RESPONDING PARTY:       Defendant California Physicians’ Service dba Blue Shield of California

(2)   Plaintiff’s Motion for Summary Adjudication

The court considered the moving papers filed in connection with the motion to seal filed by defendant California Physicians’ Service dba Blue Shield of California (“Defendant”).  The court considered the moving, opposition, and reply papers filed in connection with the motion for summary adjudication filed by plaintiff David Ward (“Plaintiff”).

JUDICIAL NOTICE

The court denies Plaintiff’s October 14, 2022 request for judicial notice, submitted with Plaintiff’s reply papers in support of his motion for summary adjudication, as an improper attempt to submit evidence in reply.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

EVIDENTIARY OBJECTIONS

The court sustains Defendant’s objections, filed on October 18, 2022, to Plaintiff’s evidence submitted in support of Plaintiff’s reply papers.  (Jay, supra, 218 Cal.App.4th at pp. 1537-1538.)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  For the purposes of motion for summary judgment and summary adjudication, “[a] plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

DEFENDANT’S MOTION TO SEAL

On October 6, 2022, Defendant filed a motion to seal confidential information submitted by Defendant in support of its opposition to Plaintiff’s motion for summary adjudication.  On the court’s own motion, the court advances the hearing on Defendant’s motion to seal from December 16, 2022 to October 20, 2022, and rules as follows. 

Defendant moves the court for an order sealing documents submitted in support of its opposition to Plaintiff’s motion for summary adjudication and all references to those documents within Defendant’s opposition papers.  Specifically, Defendant moves to seal the following. 

First, Defendant moves to seal exhibits A-B and 5-12, attached to Defendant’s filing entitled “Defendant California Physicians’ Service dba Blue Shield of California’s Appendix of Evidence in Support of Blue Shield’s Opposition to Plaintiff David Ward’s Motion for Summary Adjudication,” filed on October 7, 2022. 

Second, Defendant moves to seal the following pages from the document entitled “Defendant California Physicians’ Service dba Blue Shield of California’s Opposition to Plaintiff David Ward’s Motion for Summary Adjudication,” filed by Defendant on October 6, 2022: page 1, lines 6-10, 17-18, and 23-28; page 2, lines 12-15, 17-18, 21, 24, and 26; page 3, lines 8-12, 15-18, and 24-25; page 4, lines 2, 4, 6-10, 14-16, 22, and 26-27; page 5, lines 1-4, 6-12, 14, 16-19, and 21; page 6, lines 1-11, 14-17, and 20-28; page 7, lines 1-3, 6-12, 15, 18, 21, 23, and 26-28; page 8, lines 2-3; page 9, lines 4-7, 11-14, 17-23, and 27-28; page 10, lines 3-4, 6, 15-18, 20-24, and 27-28; page 11, lines 1-2, 5-10, 14-16, 23-24, and 25-26; page 12, lines 3-4, 19-23, and 25-27; page 13, lines 1-3, 5, 11, 14-17, 19, and 23-28; page 14, lines 1-3, 5-8, 10, 12, 17-18, 20-21, and 25-26; page 15, lines 2-9, 13-14, 19-25, and 28; page 16, lines 1, 4, 6-7, 9-10, 13-22, 24-25, and 27-28; page 17, lines 1-4, 14-16, 18-25, and 27-28; page 18, lines 1-2, 4, and 6; and page 19, lines 1 and 5. 

Third, Defendant moves to seal the following portions from the document entitled “Defendant California Physicians’ Service dba Blue Shield of California’s Responsive Separate Statement in Opposition to Plaintiff David Ward’s Motion for Summary Adjudication[,]” filed by Defendant on October 6, 2022: page 1, lines 17 and 28; page 2, lines 1-2, 4-6, 11-18, and 19-27; page 3, lines 3-7, 18-20, and 27; page 4, lines 1, 4-6, 11, 16, 21-22, and 26; page 5, lines 2, 8-9, 11-13, 19-20, and 23-26; page 6, lines 4-19; page 7, lines 18 and 24-27; page 8, lines 1-10, 12, 13-16, 18-21, and 25-27; page 9, lines 1-6, 9-15, 21, 22-23, and 26-28; page 10, lines 1-2, 5, 8-9, 12-16, 20, 24-25, and 27-28; page 11, lines 1-5, 10, 15-18, 21-22, and 24-25; page 12, lines 5-6, 11-14, 16-17, 19-20, and 27-28; page 13, lines 1-5, 6-15, 18-19, 22, and 26-28; page 14, lines 1-2, 5-7, 9, 12, 18-19, 22-24, 25-26, and 27-28; page 15, lines 1-9 and 13-15; page 16, lines 2, 4, 5, 11, 19, and 26-27; page 17, lines 1-3, 5, 8-11, 13-16, and 21-27; page 18, lines 1-7, 9-14, 17-19, 21-23, 24-26, and 27-28; page 19, lines 1-3, 5, 6-7, 8-10, 11-12, 15-16, 22-24, and 26-28; page 20, lines 1-5, 8-10, 20-22, and 26; page 21, lines 506, 11-12, 12-18, and 22-27; page 22, lines 1-2, 4-5, 10-12, 16-17, and 22; page 23, lines 2, 6, 11, 13, 17, 18, and 23-28; page 24, lines 1-3, 7-15, 17, and 22-25; page 25, lines 3-8, 13-15, 19-23, and 28; page 26, lines 2, 5-6, 11-12, 22-23, and 27; page 27, lines 2, 6, 7-9, 11-12, and 17-25; page 28,, lines 10-12, 15-18, 20-21, and 23-27; page 29, lines 1-17, 20-21, and 22-27; page 30, lines 1-3, 5-8, and 12-28; page 31, lines 1-7, 9, 11, 15-17, 21, 22-23, and 26-28; page 32, lines 1-2, 7-9, 13-16, 20-23, and 28; and page 33, lines 1-2, 7-8, and 13.

Defendant moves to seal the described exhibits and references thereto on the ground that (1) the documents contain its member’s protected health information, which Defendant treats as confidential, and (2) Defendant also considers some information to be proprietary information. (October 6, 2022 Garrison Decl., ¶¶ 5-6; May 23, 2022 Garrison Decl., ¶ 4.)

The court finds that (1) there exists an overriding interest that overcomes the right of public access to the exhibits and references to those exhibits, because they contain confidential information relating to its member’s protected health information; (2) this overriding interest supports sealing the record to preserve the confidentiality of Defendant’s member’s medical history; (3) a substantial probability exists that the overriding interests will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored since it seals exhibits containing this information and redacts only portions of Defendant’s opposition and responsive separate statement; and (5) there are no less restrictive means to achieve the overriding interests.  (Cal. Rules of Ct., rule 2.550, subd. (d).)

The court therefore grants Defendant’s motion to seal.

PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION

1.     First Cause of Action for Breach of Implied Duty of Good Faith and Fair Dealing

“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”  (Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 252 [internal quotations omitted].)  “The implied promise requires each contracting party to refrain from doing anything to injure the right of the other to receive the benefits of the agreement.”  (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 818; Sutherland v. Barclays American/Mortgage Corp. (1997) 53 Cal.App.4th 299, 314.)  If an insurer unreasonably refuses a claim, it can be held “liable for breach of the covenant of good faith and fair dealing inherent in every insurance policy.”  (Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th 1617, 1623.)  “Thus, there are at least two separate requirements to establish breach of the implied covenant: (1) benefits due under the policy must have been withheld; and (2) the reason for withholding benefits must have been unreasonable or without proper cause.”  (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1151.)

Plaintiff bases his first cause of action on Defendant’s refusal to pay for the following procedures: (1) lumbar spine MRI and (2) lumbar spine surgery.  (SAC ¶ 23, subd. (f).)  The court notes that Plaintiff’s motion for summary adjudication also takes issue with Defendant’s denial of coverage as to Plaintiff’s CT scan.  (Mot., pp. 1:7-8, 3:15-16.)  Plaintiff’s operative Second Amended Complaint appears to allege only that Defendant unlawfully denied Plaintiff coverage as to the MRI and surgery.  (SAC ¶¶ 16-18, 23, subd. (f).)  The function of the complaint is to delimit the scope of the issues; thus, any allegations not raised in the complaint would be improperly resolved on summary adjudication.  (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381.)  However, while the Second Amended Complaint does not specifically identify the denial of the CT scan in the same manner as the denials of coverage as to the surgery and MRI, the court reads the Second Amended Complaint as alleging this denial to be part of Plaintiff’s cause of action, since Plaintiff alleges that Defendant unreasonably denied coverage as to the surgery “and related medically necessary services.”  (SAC ¶ 16.)  The court therefore interprets Plaintiff’s Second Amended Complaint as alleging the CT scan was a related medically necessary service that Defendant unlawfully denied.

The court finds that Plaintiff has not met his burden of showing that there is no defense to the first cause of action for breach of the implied duty of good faith and fair dealing because Plaintiff has not proved the element establishing that Defendant’s withholding of benefits was unreasonable or without proper cause, or that Defendant acted in bad faith by denying coverage for the specified procedures.

As to the denial of coverage as to the MRI, the court finds that Plaintiff did not meet his burden of submitting evidence to establish that Defendant’s reason for its denial was unreasonable or without proper cause.  Plaintiff submits the following evidence.

On September 18, 2018, Plaintiff received a letter from Defendant denying coverage for the MRI.  (UMF 13; Plaintiff’s Evidence (“Pl. Ex.”) 1, p. 001.)  Defendant denied coverage for the MRI on the ground that the service “would not be covered as medically necessary” under Defendant’s terms, and specifically, under NIA Clinical Guideline 044.  (Id. at pp. 001-002.)  The denial letter states that Plaintiff did not take the steps required to obtain coverage, and that Plaintiff’s doctor did not provide the additional information requested.  (Id. at p. 002.)

The court finds that the evidence submitted by Plaintiff does not establish that he met the requirements set forth in NIA Clinical Guideline 044.  First, although it is undisputed that Plaintiff received three weeks of qualifying active care, Plaintiff did not undergo this care for the required number of weeks as set forth in the guideline.  (UMF No. 6; Ward Decl., ¶ 7; Pl. Ex. 3, NIA Guideline 044, pp. 004, 006.)  Moreover, although Plaintiff states in his declaration that he treated himself “daily,” Plaintiff does not present evidence establishing that Defendant knew of this treatment as of the date of its September 18, 2018 denial.  (Ward Decl., ¶ 10.)  In support of his motion, Plaintiff argues that his self-treatment was known to Defendant based on an October 17, 2018 telephone encounter and its records.  (Pl. Ex. 2.)  However, this encounter is dated October 17, 2018—i.e., after Defendant’s September 18, 2018 denial of coverage.  (Ibid., p. 003.)

Thus, the court finds that Plaintiff has not met his burden of establishing that Defendant withheld coverage as to the lumbar spine MRI unreasonably or without proper cause.  (Love, supra, 221 Cal.App.3d at p. 1151.)  The evidence submitted by Plaintiff establishes that (1) Plaintiff did undergo three weeks of qualifying care, but did not meet all temporal requirements (i.e., Plaintiff did not undergo this care for the period of time required by NIA Clinical Guideline 044); (2) Plaintiff’s self-treatment—although possibly qualifying under the terms of NIA Clinical Guideline 044—was not known to Defendant at the time that coverage was denied, and therefore Defendant cannot be charged with ignoring evidence that supported coverage; and (3) even if Defendant had known of this treatment at the time of the denial of coverage, Plaintiff did not state how long he had been self-treating in this manner, such that Defendant had no evidence that Plaintiff had undergone this treatment for the time period required by NIA Clinical Guideline 044.  (Pl. Ex. 1, p. 001; Pl. Ex. 2; Pl. Ex. 3, pp. 004, 006; Mariscal, supra, 42 Cal.App.4th at p. 1624 [“An insurance company may not ignore evidence which supports coverage”].)  The court therefore finds that Plaintiff’s evidence does not establish that Defendant unreasonably, or without cause, denied coverage for Plaintiff’s MRI.

As set forth above, Plaintiff’s first cause of action is based on allegations that Defendant unreasonably, and without proper cause, failed “to pay for the MRI and the surgery” although Defendant was obligated to do so.  (SAC ¶ 23, subd. (f).)  The court has determined, for the reasons described above, that Plaintiff has not met his burden of establishing that Defendant unreasonably denied coverage for the MRI.  Thus, although Plaintiff presents other evidence and argument as to Defendant’s allegedly unreasonable failure to pay for his surgery and CT scan, the court may not grant summary adjudication based on such evidence, as it would not completely dispose of Plaintiff’s first cause of action.  Instead, doing so would require the court to grant summary adjudication on only portions of Plaintiff’s cause of action, which is improper.  (Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action….”].) 

The court must therefore deny Plaintiff’s motion for summary adjudication as to the first cause of action for breach of the implied duty of good faith and fair dealing. 

Although the court must deny summary adjudication for the reasons set forth above, the court briefly discusses Plaintiff’s other arguments as further support for its ruling. 

As to the denial of the CT scan, the court finds that Plaintiff did not meet his burden of establishing that Defendant’s reason for withholding this coverage was unreasonable or without cause.

On October 12, 2018, Plaintiff received a letter from Defendant denying coverage for his CT scan.  (UMF No. 21; Pl. Ex. 6.)  The denial letter stated that Plaintiff did not satisfy the requirements set forth in NIA Clinical Guideline 045.  (Pl. Ex. 6, p. 036.)  These requirements substantially mirror those set forth in NIA Clinical Guideline 044.  (Pl. Ex. 4, pp. 011, 013.)  As set forth above, while Plaintiff did submit evidence that he underwent certain qualifying care (UMF No. 6), Plaintiff did not submit evidence establishing that he underwent this care for the requisite time period.  (Id. at p. 011.)  Moreover, although Plaintiff relies on the same evidence as to his self-treatment, Plaintiff only establishes that (1) Defendant knew of this treatment on October 17, 2018—after the October 12, 2018 denial of coverage—and (2) Plaintiff did not establish for how long he had been self-treating in this manner, and thus did not provide Defendant with evidence that this self-treatment satisfied the temporal requirements set forth in NIA Clinical Guideline 045.  (See Pl. Ex. 2, p. 003.)  Plaintiff’s evidence, therefore, does not establish that Defendant withheld coverage without cause, since Plaintiff did not meet the specified requirements to obtain coverage.

As to the denial of coverage for the surgery, the court recognizes that Plaintiff has submitted evidence which would appear to have qualified Plaintiff for surgery pursuant to the requirements set forth in the NIA Clinical Guideline 304.  (Pl. Ex. 5, pp. 021 [explaining way in which subject surgery may be used as first line of treatment], 020 [listing subject clinical conditions]; Pl. Ex. 10, p. 059 [October 22, 2018 authorization request stating that Plaintiff had such conditions].)  However, even if the court were to find that this evidence was sufficient to shift the burden to Defendant as to the entire first cause of action, Defendant has presented evidence sufficient to show that a triable issue of material fact exists as to whether Defendant properly denied the coverage, since Defendant has presented evidence disputing whether Plaintiff suffered from the requisite medical conditions.  (Def. Appx. of Evidence, Nelson Decl., ¶¶ 1, 22, 23, 28, 30.)  Moreover, as set forth above, even if the court concluded that Defendant did not meet its burden to show that a triable issue of material fact exists as to the denial of coverage as to the surgery, the court could not grant summary adjudication on such an issue, as it would improperly dispose of only a portion of Plaintiff’s first cause of action.  (Code Civ. Proc., § 437c, subd. (f)(1).)

Finally, the court notes that, in reply, Plaintiff contends that Defendant should have thoroughly investigated its claims and provided coverage for each of the three procedures.  Plaintiff points to evidence submitted by Defendant in support of its opposition in order to argue that Defendant failed to adequately contact Plaintiff’s physician before denying coverage.  (Reply, pp. 8:7-10:14.)  However, Plaintiff did not raise any of these points in support of his moving papers, nor did Plaintiff submit evidence establishing that Defendant’s alleged failure to make contact with his physician constituted a breach of the covenant of good faith and fair dealing.  “‘[P]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’”  (Jay, supra, 218 Cal.App.4th at p. 1538.) 

The court declines to consider these points, raised for the first time in Plaintiff’s reply, because (1) Defendant has not had the opportunity to respond to these arguments, raising due process concerns, and (2) Plaintiff did not submit any evidence of these inadequate attempts to investigate his claims in support of his moving papers, and therefore failed to meet his burden of showing that there is no defense to the first cause of action on this ground.

The court therefore denies Plaintiff’s motion for summary adjudication as to the first cause of action for breach of the implied covenant of good faith and fair dealing. 

ORDER

The court grants defendant California Physicians’ Service dba Blue Shield’s motion to seal.

The court orders that the complete, unredacted versions of the following documents shall be filed under seal: (1) exhibits A-B and 5-12, attached to Defendant’s filing entitled “Defendant California Physicians’ Service dba Blue Shield of California’s Appendix of Evidence in Support of Blue Shield’s Opposition to Plaintiff David Ward’s Motion for Summary Adjudication,” filed on October 7, 2022; (2) the following pages from the document entitled “Defendant California Physicians’ Service dba Blue Shield of California’s Opposition to Plaintiff David Ward’s Motion for Summary Adjudication” filed by Defendant on October 6, 2022: page 1, lines 6-10, 17-18, and 23-28; page 2, lines 12-15, 17-18, 21, 24, and 26; page 3, lines 8-12, 15-18, and 24-25; page 4, lines 2, 4, 6-10, 14-16, 22, and 26-27; page 5, lines 1-4, 6-12, 14, 16-19, and 21; page 6, lines 1-11, 14-17, and 20-28; page 7, lines 1-3, 6-12, 15, 18, 21, 23, and 26-28; page 8, lines 2-3; page 9, lines 4-7, 11-14, 17-23, and 27-28; page 10, lines 3-4, 6, 15-18, 20-24, and 27-28; page 11, lines 1-2, 5-10, 14-16, 23-24, and 25-26; page 12, lines 3-4, 19-23, and 25-27; page 13, lines 1-3, 5, 11, 14-17, 19, and 23-28; page 14, lines 1-3, 5-8, 10, 12, 17-18, 20-21, and 25-26; page 15, lines 2-9, 13-14, 19-25, and 28; page 16, lines 1, 4, 6-7, 9-10, 13-22, 24-25, and 27-28; page 17, lines 1-4, 14-16, 18-25, and 27-28; page 18, lines 1-2, 4, and 6; and page 19, lines 1 and 5; and (3) the following portions from the document entitled “Defendant California Physicians’ Service dba Blue Shield of California’s Responsive Separate Statement in Opposition to Plaintiff David Ward’s Motion for Summary Adjudication” filed by Defendant on October 6, 2022: page 1, lines 17 and 28; page 2, lines 1-2, 4-6, 11-18, and 19-27; page 3, lines 3-7, 18-20, and 27; page 4, lines 1, 4-6, 11, 16, 21-22, and 26; page 5, lines 2, 8-9, 11-13, 19-20, and 23-26; page 6, lines 4-19; page 7, lines 18 and 24-27; page 8, lines 1-10, 12, 13-16, 18-21, and 25-27; page 9, lines 1-6, 9-15, 21, 22-23, and 26-28; page 10, lines 1-2, 5, 8-9, 12-16, 20, 24-25, and 27-28; page 11, lines 1-5, 10, 15-18, 21-22, and 24-25; page 12, lines 5-6, 11-14, 16-17, 19-20, and 27-28; page 13, lines 1-5, 6-15, 18-19, 22, and 26-28; page 14, lines 1-2, 5-7, 9, 12, 18-19, 22-24, 25-26, and 27-28; page 15, lines 1-9 and 13-15; page 16, lines 2, 4, 5, 11, 19, and 26-27; page 17, lines 1-3, 5, 8-11, 13-16, and 21-27; page 18, lines 1-7, 9-14, 17-19, 21-23, 24-26, and 27-28; page 19, lines 1-3, 5, 6-7, 8-10, 11-12, 15-16, 22-24, and 26-28; page 20, lines 1-5, 8-10, 20-22, and 26; page 21, lines 506, 11-12, 12-18, and 22-27; page 22, lines 1-2, 4-5, 10-12, 16-17, and 22; page 23, lines 2, 6, 11, 13, 17, 18, and 23-28; page 24, lines 1-3, 7-15, 17, and 22-25; page 25, lines 3-8, 13-15, 19-23, and 28; page 26, lines 2, 5-6, 11-12, 22-23, and 27; page 27, lines 2, 6, 7-9, 11-12, and 17-25; page 28,, lines 10-12, 15-18, 20-21, and 23-27; page 29, lines 1-17, 20-21, and 22-27; page 30, lines 1-3, 5-8, and 12-28; page 31, lines 1-7, 9, 11, 15-17, 21, 22-23, and 26-28; page 32, lines 1-2, 7-9, 13-16, 20-23, and 28; and page 33, lines 1-2, 7-8, and 13.

Pursuant to California Rules of Court, rule 2.551 subdivision (e), the court directs the clerk to file this order, maintain the records ordered sealed in a secure manner, and clearly identify the records as sealed by this this order. 

The court further orders that no persons other than the court are authorized to inspect the sealed records.

The court denies plaintiff David Ward’s motion for summary adjudication as to the first cause of action for breach of the implied covenant of good faith and fair dealing.

The court orders defendant California Physicians’ Service dba Blue Shield to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 20, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court