California Spine and Neurosurgery Institute v. United Healthcare Insurance Company

Opinion

NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

CALIFORNIA SPINE AND Case No. 19-CV-02417-LHK NEUROSURGERY INSTITUTE, Plaintiff/Counter-Defendant, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY v. JUDGMENT AND DENYING DEFENDANT’S MOTION FOR UNITED HEALTHCARE INSURANCE COMPANY, et al., Re: Dkt. Nos. 66, 67 Defendants/Counter-Plaintiff.

Plaintiff California Spine and Neurosurgery Institute (“Plaintiff”) sues Defendant United Healthcare Insurance Company (“Defendant”) and Does 1 through 25 for breach of implied in fact contract and breach of express contract. ECF No. 30 (“SAC”) ¶¶ 46–60. Defendant asserts a counterclaim against Plaintiff for money had and received. ECF No. 51 ¶¶ 22–24. Before the Court are Plaintiff’s motion for summary judgment on Defendant’s counterclaim, ECF No. 66, and Defendant’s motion for summary judgment, or in the alternative, for partial summary judgment, on Plaintiff’s Second Amended Complaint, ECF No. 67.1 Having considered the 1 Defendant’s motion for summary judgment contains a notice of motion filed and paginated separately from the points and authorities in support of the motion. ECF Nos. 67, 68. Plaintiff’s 1 parties’ submissions, the relevant law, and the record in this case, the Court DENIES Plaintiff’s motion for summary judgment and DENIES Defendant’s motion for summary judgment. A. Factual Background Plaintiff is a “medical facility dedicated to the care and treatment of spine injuries and/or conditions” located in Campbell, California. SAC ¶¶ 1, 8. In March 2018 and July 2018, Plaintiff rendered “medically necessary” “spine surgeries” to three patients—D.B., L.M., and M.B.— whose health insurance benefits were sponsored and administered by Defendant.2 SAC ¶¶ 12, 20, 25, 30, 36, 41; Onibokun Decl. ¶ 6, Exhs. A, D, H. All three patients worked for the same employer, Apple, Inc. (“Apple”), and were “beneficiar[ies] of a health plan . . . administered” by Defendant. SAC ¶¶ 11, 24, 35; Onibokun Decl. ¶ 6. All patients owned an identification card from Defendant that was presented to medical providers in order to obtain medical care. SAC ¶¶ 11, 24, 35. Defendant instructed patients to present an identification card “to assure medical providers that they would be paid for medical care . . . at a percentage of the usual and customary value for such care.” Id. Furthermore, the patients’ employer published a summary of the benefits of patients’ medical plans and noted that the plans paid 70% of eligible expenses for care from out-of-network providers.3 Id. ¶¶ 12, 25, 36. Plaintiff was an out-of-network provider under the health plans administered by Defendant. Id. ¶ 9. D.B., L.M., and M.B. experienced back pain and sought medical services from Plaintiff.

motion for summary judgment contains a notice of motion paginated separately from the points and authorities in support of the motion. ECF No. 66 at 1–2. Civil Local Rule 7-2(b) provides that the notice of motion and points and authorities must be contained in one document with the same pagination. 2 Plaintiff “limited the disclosure of patient identification information pursuant to the privacy provisions of the federal Health Insurance Portability & Accountability Act (“HIPAA”) §§ 1320(d) et seq., and the California Constitution, art. 1, § 1.” SAC at 4 n.1. 3 The Second Amended Complaint alleges that D.B. and L.M. both have the same health plan but that M.B. has a different one. SAC ¶¶ 12, 25, 36. According to the SAC, the health plans reimburse 70% of expenses for care from out-of-network providers with slight differences based on deductibles. Id. For the purposes of the instant motions, these differences are immaterial. 2 Id. ¶¶ 13, 26, 37. For each patient, Plaintiff contacted Defendant to verify medical eligibility benefits, and Defendant’s client services representatives “either expressly or impliedly assured” Plaintiff that Defendant “carried the financial responsibility to pay for” all three patients’ “anticipated medical care at 70% of the usual and customary value for such care.” SAC ¶¶ 17, 27, 38; Ernster Decl. Exh. A at 144–45; Onibokun Decl. Exhs. B, E, I. Defendant’s affiliate then allegedly sent Plaintiff authorization letters for the services to Patients D.B., L.M., and M.B., each of which specified the services to be performed by procedure code and stated that “[a]fter review of the information submitted and your plan documents, it was determined that this service is covered by your plan.” Onibokun Decl. Exhs. C, G, J. Based on the existence of an identification card issued by Defendant, the pre-authorization discussions and the authorization letter, and “the express and/or implied resultant assurances” that Plaintiff “would be paid at least 70% of the usual and customary value of its medical services anticipated to be rendered,” Plaintiff provided treatment to D.B., L.M., and M.B. and submitted claims for payment at the usual and customary rate for such services. SAC ¶¶ 20–21, 30–31, 41 – 42. Plaintiff alleges, however, that Defendant significantly underpaid Plaintiff and owes $206,909.66 plus interest and other costs. Id. ¶¶ 21–23, 31–34, 42–45, 69. Conversely, Defendant alleges that Defendant overpaid Plaintiff for the services to Patient D.B. by $98,140.00. ECF No. 51 ¶¶ 22–24. B. Procedural History On December 20, 2018, Plaintiff filed suit against UHC of California doing business as UnitedHealthcare of California, Apple, and Does 1 through 25 in the Superior Court of Santa Clara County. ECF No. 1-1 Ex. A (“FAC”). Plaintiff’s complaint asserted three causes of action against the defendants: breach of implied in fact contract, breach of express contract, and quantum meruit. Id. On February 25, 2019, Plaintiff amended the complaint and replaced UHC of California with United Healthcare Insurance Company. FAC ¶ 5. On April 23, 2019, Plaintiff filed a request 3 for dismissal of Apple in state court. ECF No. 1-1 Ex. E. On April 30, 2019, Plaintiff also filed a request for dismissal of UHC of California in state court. ECF No. 1-1 Ex. F. United Healthcare Insurance Company was the only remaining named defendant. On May 3, 2019, Defendant removed the case to this Court. ECF No. 1. On May 10, 2019, Defendant moved to dismiss all three causes of action in Plaintiff’s First Amended Complaint. ECF No. 7. On September 17, 2019, the Court granted in part and denied in part Defendant’s motion to dismiss. ECF No. 28. First, the Court denied Defendant’s motion to dismiss Plaintiff’s claims for breach of implied in fact contract and breach of express contract because Plaintiff pled that “Defendant gave ‘express and/or implied resultant assurances’ that Plaintiff ‘would be paid at least 70% of the usual and customary value of its medical services anticipated to be rendered.’” Id. at 6 (quoting FAC ¶¶ 17, 27, 38). As a result, the Court concluded that Plaintiff had adequately alleged that Defendant exhibited an intent to contract. Id. at 6–7. Second, the Court granted Defendant’s motion to dismiss Plaintiff’s quantum meruit claim with leave to amend. Id. at 8–10. Among other things, a quantum meruit claim requires that services were performed at the defendant’s request. Id. at 8–9. Because Plaintiff had only alleged that Plaintiff requested services, the Court dismissed the quantum meruit claim with leave to amend. Id. at 9–10. On October 17, 2019, Plaintiff filed its Second Amended Complaint and realleged the same three causes of action for breach of implied in fact contract, breach of express contract, and quantum meruit. ECF No. 30 (“SAC”) ¶¶ 46–69. Plaintiff, however, added only two new paragraphs. See id. ¶¶ 63-64. Those paragraphs allege that “[p]rior to surgery for Patient D.B., California Spine received a pre-procedure authorization letter from OrthoNet, on behalf of United” and that “[p]rior to surgery for Patient L.M. and Patient M.B., California Spine was informed, by agents of United as stated above, that the pre-authorization process was not required.” Id. On October 31, 2019, Defendant filed a motion to dismiss Plaintiff’s quantum meruit claim. ECF No. 32. On February 24, 2020, the Court granted Defendant’s motion to dismiss 4 Plaintiff’s quantum meruit claim with prejudice. ECF No. 49. The Court concluded that Plaintiff had not alleged that the services were performed at the defendant’s request, as required for a quantum meruit claim. Id. at 6–8. Because Plaintiff had failed to cure deficiencies identified in the Court’s prior order, the Court concluded that amendment would be futile and dismissed Plaintiff’s quantum meruit claim with prejudice. Id. at 8. On March 9, 2020, Defendant filed a counterclaim against Plaintiff for money had and received. ECF No. 51 ¶¶ 22–24. Defendant alleges that Defendant overpaid Plaintiff for the services rendered to D.B. in the amount of $98,140.00. Id. ¶ 3. On November 20, 2020, Plaintiff filed a motion for summary judgment on Defendant’s counterclaim. ECF No. 66 (“Plaintiff’s MSJ”). That same day, Defendant filed a motion for summary judgment, or in the alternative, for partial summary judgment, on the Second Amended Complaint. ECF Nos. 67, 68 (“Defendant’s MSJ”). On December 4, 2020, Plaintiff and Defendant filed oppositions. ECF No. 69 (“Plaintiff’s Opp”); ECF No. 70. (“Defendant’s Opp.”). On December 11, 2020, Plaintiff and Defendant filed replies. ECF No. 73 (“Defendant’s Reply”); ECF No. 77 (“Plaintiff’s Reply”).4 Summary judgment is proper where the pleadings, discovery, and affidavits show that there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. 4 Each side filed evidentiary objections. See ECF Nos. 69-2, 74. However, “to survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.” Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) Thus, the Court OVERRULES WITHOUT PREJUDICE each side’s evidentiary objections. 5 The Court will grant summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings, and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotations omitted). If the nonmoving party fails to make this showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. For purposes of summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party; if the evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the Court must assume the truth of the evidence submitted by the nonmoving party. Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). The Court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. T.W. Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Defendant moves for summary judgment, or in the alternative, for partial summary judgment on Plaintiff’s Second Amended Complaint. Defendant’s MSJ at 2–3. Plaintiff moves for summary judgment on Defendant’s counterclaim for money had and received. Plaintiff’s MSJ at 5. The Court first addresses Defendant’s motion for summary judgment. The Court then addresses Plaintiff’s motion for summary judgment. A. Defendant’s Motion for Summary Judgment Defendant moves for summary judgment on the claims in Plaintiff’s Second Amended 6 Complaint: (1) breach of implied in fact contract and (2) breach of express contract. Defendant’s MSJ at 2. In the alternative, Defendant moves for partial summary judgment. Id. at 3. Under California law, a cause of action for breach of contract requires “(1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) the resulting damages to the plaintiff.” Chung v. Nationstar Mortg., 2013 WL 12321999, at *4 (C.D. Cal. Oct. 29, 2013) (quoting Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (Cal. 2011)). “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor's conduct.” Yari v. Producers Guild of Am., Inc., 161 Cal. App. 4th 172, 182 (2008) (citing Chandler v. Roach, 156 Cal. App. 2d 435, 440 (1957)). Contract formation, in turn, requires “(1) parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficient cause or consideration.” Summit Estate, Inc. v. Cigna Healthcare of Cal., Inc., 2017 WL 4517111, at *3 (N.D. Cal. Oct. 10, 2017) (citing Cal. Civ. Code § 1550). “In order to satisfy the consent requirement, there must be ‘objective’ and ‘outward manifestations’ that the parties intended to be bound by an agreement.” Id. (quoting Weddington Prods., Inc. v. Flick, 60 Cal. App. 4th 793, 811 (1998)). Defendant contends that there is no genuine issue of material fact regarding whether a contract existed between Plaintiff and Defendant for two reasons. First, Defendant argues that the verification of benefits calls and authorization of services letters do not create a genuine issue of material fact regarding whether a contract existed. Defendant’s MSJ at 13–16. Second, Defendant argues there is no genuine issue of material fact regarding whether a contract existed because the parties had different understandings of what rate Defendant would pay for the services rendered. Defendant’s MSJ at 16–20. The Court addresses each of these arguments in turn. 1. Taken together, the verification of benefits calls and authorization of services letters create a genuine issue of material fact regarding whether a contract existed. Defendant argues that the existence of a contract cannot be demonstrated by: (1) the 7 verification of benefits calls placed by Plaintiff’s representatives to Defendant’s representatives, and (2) Defendant’s authorization of services letters. Defendant’s MSJ at 13–16. The Court considers each in turn. a. The verification of benefits calls Defendant contends that the verification of benefits calls do not demonstrate that a contract existed. Defendant’s MSJ at 13–15. In support of this argument, Defendant cites cases holding that a verification of benefits call between a healthcare provider and an insurer did not create a contract requiring the insurer to pay. For example, in Stanford Hospital & Clinics v. Multinational Underwriters, Inc., another court in this district granted summary judgment to an insurer because the only evidence of a contract stemmed from a verification of benefits call and “the relevant case law weigh[ed] against a finding that verification of benefits alone constitutes consent.” 2008 WL 5221071, at *6 (N.D. Cal. Dec. 12, 2008). Similarly, in Cedars-Sinai Medical Center v. Mid-West National Life Insurance Company, another district court concluded that “verification of coverage” could not be “viewed objectively as exhibiting an intent to contract” and thus granted summary judgment to the insurer. 118 F. Supp. 2d 1002, 1008 (C.D. Cal. 2000). However, there are two flaws with Defendant’s argument. First, although some cases have held that a verification of benefits call is insufficient to form a contract, other cases have concluded that a verification of benefits call is sufficient. See, e.g., Enloe Med. Ctr. v. Principal Life Ins. Co., 2011 WL 6396517, at *6 (E.D. Cal. 2011) (finding that “in some instances, a contract may be created on an authorization call”). Second, the instant case is distinguishable from Stanford and Cedars-Sinai because, unlike the insurer in those cases, Defendant sent letters explicitly authorizing the specific services to be provided in addition to the verification of benefits call. See Onibokun Decl. Exhs. C, G, J. Thus, the facts of this case are closer to Regents of the University of California v. Principal Financial Group, where another court in this district denied summary judgment and held that there was a genuine issue of material fact regarding whether the insurer-defendants exhibited an intent to 8 contract because “defendants in this case provided both verification of coverage and explicit authorization for the hospital stay.” 412 F. Supp. 2d 1037, 1042 (N.D. Cal. 2006). The Court next considers the authorization of service letters.5 b. The authorization of service letters Defendant next contends that its authorization of service letters are not sufficient evidence that a contract existed. Defendant’s MSJ at 15–16. Specifically, Defendant points to a disclaimer at the end of each letter, which states that “[t]his approval does not guarantee that the plan will pay for the service” in certain circumstances. Onibokun Decl. Exhs. C, G, J. However, Defendant’s argument is unpersuasive. The disclaimer states that “[t]his approval does not guarantee that the plan will pay for the service, when, for example”: (1) “[y]ou’re no longer a member of the plan on the date you receive services” or “the plan ended before you received services”; (2) “you never received services” or “services are found to be a case of fraud, waste, or abuse”; (3) “payment of covered services depends on other plan rules”; or (4) when “services were provided by a doctor, health care professional, or facility that was sanctioned or excluded from government programs at the time of service.” See id. Defendant does not argue that any of those limited circumstances applies here. Thus, the Court concludes that the verification of benefits calls, together with the authorization letters, create a genuine issue of material fact regarding whether a contract existed between Plaintiff and Defendant. 2. There is a genuine issue of material fact regarding whether a contract existed between Plaintiff and Defendant to pay 70% of the usual and customary rate of the services Plaintiff provided. Defendant next contends that a contract did not exist because, at the time the contract was allegedly formed, Plaintiff and Defendant had different understandings of what rate Defendant would pay for the services Plaintiff provided. Defendant’s MSJ at 16–20. According to Defendant,

5 Defendant also argues that verification of benefits calls are not sufficient to demonstrate the existence of a contract because “[d]uring such calls, Plaintiff’s representatives do not identify the procedure (by CPT codes) that Plaintiff intends to perform on the patients.” Defendant’s MSJ at 14. However, the authorization of services letters identify the specific procedures to be performed. See Onibokun Decl. Exhs. C, G, I. 9 Plaintiff “alleges that an express contract existed between Plaintiff and Defendant by which Defendant agreed to pay Plaintiff at least 70% of Plaintiff’s billed charges for the services,” but Defendant never agreed to pay Plaintiff at least 70% of Plaintiff’s billed charges. Id. at 16. However, Plaintiff does not claim that Defendant agreed to pay 70% of Plaintiff’s billed charges. Rather, Plaintiff’s complaint alleges that Defendant “confirmed that they would pay at least 70% of the usual and customary value of [Plaintiff’s] care” and “agreed to pay for [Plaintiff’s] care at a rate of at least 70% of the usual and customary value of [Plaintiff’s] care.” SAC ¶¶ 48, 56. Similarly, Dr. Onibokun, Plaintiff’s person most knowledgeable regarding payments made by Defendant to Plaintiff for the services rendered to the three patients at issue, testified in a deposition that Defendant’s representative told Plaintiff that the reimbursement “[was] going to be based on UCR [the usual and customary rate].” Ernster Decl. ¶ 4; Exh. A at 144:25–145:2. In addition, Plaintiff’s notes documenting the calls with Defendant state that Defendant’s representative said that reimbursement would be “based on UCR.” Onibokun Decl. Exhs. B, E, I. Accordingly, Plaintiff is not claiming that a contract was formed to pay 70% of Plaintiff’s billed charges. Rather, Plaintiff is claiming that a contract was formed to pay 70% of the usual and customary rate of the services Plaintiff provided. Thus, there is a genuine issue of material fact as to whether a contract existed between Plaintiff and Defendant to pay 70% of the usual and customary rate of the services Plaintiff provided. Accordingly, the Court DENIES Defendant’s motion for summary judgment. The Court next considers Plaintiff’s motion for summary judgment. B. Plaintiff’s Motion for Summary Judgment Plaintiff moves for summary judgment on Defendant’s counterclaim for money had and received for four reasons. First, Plaintiff contends that Defendant cannot make a showing on the elements of money had and received. Plaintiff’s MSJ at 5–7. Second, Plaintiff contends that Defendant’s request for overpayment was untimely. Id. at 8–10. Third, Plaintiff argues that Defendant’s counterclaim violates the holding of Peterson v. UnitedHealth Group, 242 F. Supp. 10 3d 834, 847 (D. Minn. 2017). Id. at 7–8. Finally, Plaintiff argues that Defendant has impeded Plaintiff from pursuing Patient D.B., on whose treatment Defendant allegedly overpaid, for payment. The Court addresses each argument in turn. 1. There are genuine issues of material fact on Defendant’s counterclaim for money had and received. Plaintiff first argues that Defendant cannot make a showing on the elements of money had and received. Plaintiff’s MSJ at 5–7. The Court disagrees for the reasons explained below. “A cause of action for money had and received is stated if it is alleged the defendant ‘is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.’” Farmers Ins. Exchange v. Zerin, 53 Cal. App. 4th 445, 460 (1997) (quoting Schultz v. Harney, 27 Cal. App. 4th 1611, 1623 (1994)). The cause of action is viable “wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.” Gutierrez v. Girardi, 194 Cal. App. 4th 925, 937 (2011) (quoting Weiss v. Marcus, 51 Cal. App. 3d 590, 599 (1975)). “[T]he plaintiff must prove that the defendant received money ‘intended to be used for the benefit of [the plaintiff],’ that the money was not used for the plaintiff’s benefit, and that the defendant has not given the money to the plaintiff.” Avidor v. Sutter’s Place, Inc., 212 Cal. App. 4th 1439, 1454 (2013) (quotation omitted). At the heart of Defendant’s money had and received claim is Defendant’s allegation that Defendant overpaid Plaintiff for the services rendered to Patient D.B. by $98,140.00. ECF No. 51 ¶¶ 3, 22–24. Plaintiff argues that Defendant cannot show the essential elements of money had and received for three reasons: (1) Defendant cannot show that Plaintiff received an overpayment; (2) Defendant cannot show that the money received by Plaintiff was intended to be used for Defendant’s benefit; and (3) Defendant had not made a prior request for return of the alleged overpayment. Plaintiff’s MSJ at 6–7. The Court addresses each argument in turn. First, Plaintiff contends that Defendant cannot show that Defendant received an overpayment for the services rendered to Patient D.B. Id. at 6. Specifically, Plaintiff contends that 11 Defendant has paid Plaintiff only $60,330.30 for the services rendered to Patient D.B., which is a lower amount than the $98,140.00 that Defendant alleges that Defendant overpaid Plaintiff for the services rendered to Plaintiff D.B. Id. However, there is a genuine issue of material fact regarding how much Defendant paid Plaintiff for the services rendered to Patient D.B. Indeed, Defendant points to evidence that Defendant has paid Plaintiff a total of $153,000.00 for the services rendered to Patient D.B. Specifically, Defendant issued a Provider Remittance Advice to Plaintiff, which states that Defendant paid a total of $153,000.00: $60,330.30 via transfer to Plaintiff, and $92,669.70 by reducing an overpayment made on a claim for Patient M.H., who is not at issue in the instant case. Onibokun Decl. in support of Plaintiff’s MSJ, Exh. B at 3, 6. Thus, there are genuine issues of material fact regarding whether Defendant overpaid Plaintiff for the services rendered to Patient D.B. Second, Plaintiff contends that Defendant cannot show that the money received by Plaintiff was intended to be used for Defendant’s benefit. Plaintiff’s MSJ at 6. Specifically, Plaintiff argues that the money received by Plaintiff was intended to be used for the benefit of Patient D.B. because Patient D.B. had paid premiums for healthcare benefits provided by Apple and administered by Defendant. Id. However, Defendant was the administrator of Patient D.B.’s health plan, and “[i]t is not uncommon that an insurance company, bank, or other third-party will raise a Money Had and Received claim even though the insured or payee was the one who literally received the benefit of the money at issue.” Lincoln Nat’l Life Ins. Co. v. McClendon, 230 F. Supp. 3d 1180, 1191–92 (C.D. Cal. 2017) (evaluating claim for money had and received under California law). Finally, Plaintiff argues that Defendant had not made a prior request for the overpayment. However, a claim for money had and received does not require that the plaintiff has made a prior request for the overpayment. Rather, the claim requires only “that the defendant has not given the money to the plaintiff.” Avidor, 212 Cal. App. 4th at 1454 (quotation omitted). Plaintiff never contends that Plaintiff has given the allegedly overpaid money back to Defendant. Thus, there are 12 genuine issues of material fact on Defendant’s counterclaim for money had and received. 2. Defendant’s counterclaim is not untimely. Plaintiff next contends that Defendant’s counterclaim was untimely. Plaintiff’s MSJ at 8– 10. For this argument, Plaintiff relies on California Insurance Code Section 10133.66(b), which states that “[r]eimbursement requests for the overpayment of a claim shall not be made . . . unless a written request for reimbursement is sent to the provider within 365 days of the date of payment on the overpaid claim.” Cal. Ins. Code. § 10133.66(b). Plaintiff argues that Defendant failed to comply with this provision because Defendant paid Plaintiff for Patient D.B.’s treatment on April 26, 2018, but Defendant did not file its counterclaim until March 9, 2020. Plaintiff’s MSJ at 10; ECF No. 51 ¶¶ 22–24. However, Defendant is not requesting reimbursement under the California Insurance Code. Rather, Defendant is bringing a counterclaim under a common count for money had and received. ECF No. 51 ¶¶ 22–24. The statute of limitations for money had and received is two years. See Warren v. Lawler, 343 F.2d 351, 360 (9th Cir. 1965) (concluding that the theory of money had and received is subject to the two-year statute of limitations period set forth in Cal. Code. Civ. Proc. § 339(1)); Cal. Code. Civ. Proc. § 339(1) (establishing a two-year statute of limitations period for liabilities not founded on written instruments); accord Lincoln, 230 F. Supp. 3d at 1188 (“A claim for Money Had and Received [under California law] . . . is subject to a two-year statute of limitations.”). Defendant’s counterclaim was filed within two-year statute of limitations period because Defendant paid Plaintiff for D.B.’s treatment on April 26, 2018, and Defendant filed its counterclaim less than two years later, on March 9, 2020. Thus, Defendant’s counterclaim is not untimely. 3. Peterson is inapposite. Plaintiff also contends that Defendant’s counterclaim violates the holding of Peterson. Plaintiff’s MSJ at 7–8. However, Peterson is inapposite. Unlike the instant case, Peterson involved a claim under the Employee Retirement Income Security Act of 1974 (“ERISA”). 242 F. 13 1 Supp. 3d at 836. The district court had to determine whether UnitedHealth Group’s interpretation 2 of the specific plan at issue in that case, which permitted cross-plan offsetting, was reasonable 3 } under ERISA. /d. at 847. The district court concluded that UnitedHealth Group’s interpretation 4 was unreasonable under ERISA. /d. Because neither Plaintiff nor Defendant has brought an 5 ERISA claim in the instant case, Peterson is inapposite to the instant case. 6 4. Plaintiff's alleged inability to pursue Patient D.B. for payment does not mean that summary judgment should be granted to Plaintiff. 7 Finally, Plaintiff argues that Defendant has impeded Plaintiff from pursuing Patient D.B. 8 for payment. Plaintiff's MSJ at 10-11. However, even assuming that Plaintiff is unable to pursue 9 Patient D.B. for payment, Plaintiff never explains why Plaintiff’s inability to pursue Patient D.B. 10 for payment means that there is an absence of genuine issues of material fact on Defendant’s claim 1] for money had and received. Thus, the Court rejects Plaintiff's four arguments and DENIES 3a 12 Plaintiff's motion for summary judgment on Defendant’s counterclaim. 13 IV. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s motion for summary judgment 15 and DENIES Defendant’s motion for summary judgment. 16 IT IS SO ORDERED. il

Z 18 Dated: February 12, 2021 Gh. 20 Lucy ¥ KOH United States District Judge 22 23 24 25 26 27 14 28 Case No. 19-CV-02417-LHK ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S