NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE COMPENSATION INSURANCE No. 16-55501 FUND, a Public Enterprise Fund and Independent Agency of the State of California, D.C. No. 8:12-cv-01072-CJC-JCG Plaintiff-Appellant, Central District of California, Santa Ana v.
SANA ULLAH KHAN, an individual; ORDER ALEXANDER ZAKS, an individual; DAVID M. HOLMES, an individual; DANIEL A. REYES, an individual; BRUCE MCINTYRE ROTH, an individual; ACCIDENT HELP LINE MEDICAL GROUP, INC., a California corporation; ALEXANDER ZAKS, M.D., DBA Millcreek Surgery Center Medical Group, a California corporation; ALTA SURGERY CENTER MEDICAL CLINIC, INC., a California corporation; TECHNICAL SURGERY SUPPORT MEDICAL CLINIC SERVICES, INC., a California corporation; RELIABLE MEDICAL SUPPLY LLC, a California limited liability company; VALLEY INTERPRETING SERVICES, LLC, a California limited liability company; COMPREHENSIVE OUTPATIENT SURGERY CENTER, LLC, a California limited liability company; PHYSICIANS MOBILE MEDICAL GROUP, INC., DBA TVN Medical Group and Excell Comprehensive Diagnostics, a California corporation; PRECISION CARE MEDICAL GROUP, a California corporation; TRUE IMAGING MEDICAL GROUP, DBA True View Radiology Medical Group, a California professional corporation; WINDSTAR MEDICAL ASSOCIATES, DBA True Neurology Medical Centers, a California professional corporation; CRESCENT DIAGNOSTIC MEDICAL GROUP, INC., a California corporation; CRESCENT COMPREHENSIVE MANAGEMENT, INC., DBA Excell Diagnostic and Mobile Medical Imaging Xperts, a California corporation,
Defendants-Appellees.
Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,* District Judge.
The memorandum disposition filed on January 17, 2018, is amended as
follows: The paragraph running from page 5, line 19 to page 6, line 6, beginning
with and ending with , is deleted.
Judge M. Smith and Judge Friedland vote to deny the petition for rehearing
en banc, and Judge Rakoff so recommends. The full court has been advised of the
petition for rehearing en banc, and no judge requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc filed on
January 31, 2018, is DENIED. No further petitions for panel rehearing or
* The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation.
2 rehearing en banc will be entertained.
3 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE COMPENSATION INSURANCE No. 16-55501 FUND, a Public Enterprise Fund and Independent Agency of the State of California,
Plaintiff-Appellant, D.C. No. 8:12-cv-01072-CJC-JCG v.
SANA ULLAH KHAN, an individual; AMENDED ALEXANDER ZAKS, an individual; MEMORANDUM* DAVID M. HOLMES, an individual; DANIEL A. REYES, an individual; BRUCE MCINTYRE ROTH, an individual; ACCIDENT HELP LINE MEDICAL GROUP, INC., a California corporation; ALEXANDER ZAKS, M.D., DBA Millcreek Surgery Center Medical Group, a California corporation; ALTA SURGERY CENTER MEDICAL CLINIC, INC., a California corporation; TECHNICAL SURGERY SUPPORT MEDICAL CLINIC SERVICES, INC., a California corporation; RELIABLE MEDICAL SUPPLY LLC, a California limited liability company; VALLEY INTERPRETING SERVICES, LLC, a California limited liability company; COMPREHENSIVE OUTPATIENT SURGERY CENTER, LLC, a California limited liability company; PHYSICIANS
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. MOBILE MEDICAL GROUP, INC., DBA TVN Medical Group and Excell Comprehensive Diagnostics, a California corporation; PRECISION CARE MEDICAL GROUP, a California corporation; TRUE IMAGING MEDICAL GROUP, DBA True View Radiology Medical Group, a California professional corporation; WINDSTAR MEDICAL ASSOCIATES, DBA True Neurology Medical Centers, a California professional corporation; CRESCENT DIAGNOSTIC MEDICAL GROUP, INC., a California corporation; CRESCENT COMPREHENSIVE MANAGEMENT, INC., DBA Excell Diagnostic and Mobile Medical Imaging Xperts, a California corporation,
Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding
Argued and Submitted January 8, 2018 Pasadena, California
Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,** District Judge.
Plaintiff-Appellant State Compensation Insurance Fund (State Fund) appeals
the district court’s grant of summary judgment to Defendants-Appellees. We have
** The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation.
2 jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
As the facts and procedural history are familiar to the parties, we do not
recite them here.
1. The district court properly granted summary judgment to Defendants-
Appellees Alexander Zaks; David M. Holmes; Daniel A. Reyes (together with
Zaks and Holmes, the Individual Zaks Defendants); Accident Help Line Medical
Group, Inc.; Alexander Zaks, M.D., Inc.; Alta Surgery Center Medical Clinic, Inc.;
Technical Surgery Support Medical Clinic Services, Inc.; Reliable Medical Supply
LLC; Valley Interpreting Services, LLC; and Comprehensive Outpatient Surgery
Center, LLC, because State Fund’s claims against these Defendants-Appellees
were precluded by the broad liability releases contained in the 2010 Settlement
Agreements. The district court correctly determined that the releases protected all
of these Defendants-Appellees because even State Fund’s claims against the
Individual Zaks Defendants were premised on acts within the scope of their agency
relationships with lien claimants, such that liability was precluded by the releases’
plain terms.
The court also correctly held that there were no grounds for rescinding the
2010 Settlement Agreements. California Civil Code § 1689 provides that “[a]
party to a contract may rescind the contract” if his consent thereto was “obtained
through duress, menace, fraud, or undue influence, exercised by or with the
3 connivance of the party as to whom he rescinds.” Id. § 1689(b)(1). For fraud to
justify rescission, however, it must be extrinsic. California “will not relieve a party
from the effect of a judgment claimed to have been obtained by fraud” if the fraud
charged “relates to matters upon which the judgment was regularly obtained and
where an opportunity was given to the party against whom it was entered to contest
the matters in issue, or present any defense which was available,” or if the fraud
“was directed to or bore upon the claim or issue which was before the court for
determination, as when a judgment is entered upon a fraudulent claim, or is
procured by false testimony, where the party had an opportunity to be heard as to
these matters.” Flood v. Templeton, 92 P. 78, 81 (Cal. 1907); see also La Salle v.
Peterson, 32 P.2d 612, 612-13 (Cal. 1934).
Here, there was no extrinsic fraud to justify rescission. All of the allegations
of fraud relate to the negotiation of the 2009 Settlement Agreement, so it is almost
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE COMPENSATION INSURANCE No. 16-55501 FUND, a Public Enterprise Fund and Independent Agency of the State of California, D.C. No. 8:12-cv-01072-CJC-JCG Plaintiff-Appellant, Central District of California, Santa Ana v.
SANA ULLAH KHAN, an individual; ORDER ALEXANDER ZAKS, an individual; DAVID M. HOLMES, an individual; DANIEL A. REYES, an individual; BRUCE MCINTYRE ROTH, an individual; ACCIDENT HELP LINE MEDICAL GROUP, INC., a California corporation; ALEXANDER ZAKS, M.D., DBA Millcreek Surgery Center Medical Group, a California corporation; ALTA SURGERY CENTER MEDICAL CLINIC, INC., a California corporation; TECHNICAL SURGERY SUPPORT MEDICAL CLINIC SERVICES, INC., a California corporation; RELIABLE MEDICAL SUPPLY LLC, a California limited liability company; VALLEY INTERPRETING SERVICES, LLC, a California limited liability company; COMPREHENSIVE OUTPATIENT SURGERY CENTER, LLC, a California limited liability company; PHYSICIANS MOBILE MEDICAL GROUP, INC., DBA TVN Medical Group and Excell Comprehensive Diagnostics, a California corporation; PRECISION CARE MEDICAL GROUP, a California corporation; TRUE IMAGING MEDICAL GROUP, DBA True View Radiology Medical Group, a California professional corporation; WINDSTAR MEDICAL ASSOCIATES, DBA True Neurology Medical Centers, a California professional corporation; CRESCENT DIAGNOSTIC MEDICAL GROUP, INC., a California corporation; CRESCENT COMPREHENSIVE MANAGEMENT, INC., DBA Excell Diagnostic and Mobile Medical Imaging Xperts, a California corporation,
Defendants-Appellees.
Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,* District Judge.
The memorandum disposition filed on January 17, 2018, is amended as
follows: The paragraph running from page 5, line 19 to page 6, line 6, beginning
with and ending with , is deleted.
Judge M. Smith and Judge Friedland vote to deny the petition for rehearing
en banc, and Judge Rakoff so recommends. The full court has been advised of the
petition for rehearing en banc, and no judge requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc filed on
January 31, 2018, is DENIED. No further petitions for panel rehearing or
* The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation.
2 rehearing en banc will be entertained.
3 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE COMPENSATION INSURANCE No. 16-55501 FUND, a Public Enterprise Fund and Independent Agency of the State of California,
Plaintiff-Appellant, D.C. No. 8:12-cv-01072-CJC-JCG v.
SANA ULLAH KHAN, an individual; AMENDED ALEXANDER ZAKS, an individual; MEMORANDUM* DAVID M. HOLMES, an individual; DANIEL A. REYES, an individual; BRUCE MCINTYRE ROTH, an individual; ACCIDENT HELP LINE MEDICAL GROUP, INC., a California corporation; ALEXANDER ZAKS, M.D., DBA Millcreek Surgery Center Medical Group, a California corporation; ALTA SURGERY CENTER MEDICAL CLINIC, INC., a California corporation; TECHNICAL SURGERY SUPPORT MEDICAL CLINIC SERVICES, INC., a California corporation; RELIABLE MEDICAL SUPPLY LLC, a California limited liability company; VALLEY INTERPRETING SERVICES, LLC, a California limited liability company; COMPREHENSIVE OUTPATIENT SURGERY CENTER, LLC, a California limited liability company; PHYSICIANS
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. MOBILE MEDICAL GROUP, INC., DBA TVN Medical Group and Excell Comprehensive Diagnostics, a California corporation; PRECISION CARE MEDICAL GROUP, a California corporation; TRUE IMAGING MEDICAL GROUP, DBA True View Radiology Medical Group, a California professional corporation; WINDSTAR MEDICAL ASSOCIATES, DBA True Neurology Medical Centers, a California professional corporation; CRESCENT DIAGNOSTIC MEDICAL GROUP, INC., a California corporation; CRESCENT COMPREHENSIVE MANAGEMENT, INC., DBA Excell Diagnostic and Mobile Medical Imaging Xperts, a California corporation,
Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding
Argued and Submitted January 8, 2018 Pasadena, California
Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,** District Judge.
Plaintiff-Appellant State Compensation Insurance Fund (State Fund) appeals
the district court’s grant of summary judgment to Defendants-Appellees. We have
** The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation.
2 jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
As the facts and procedural history are familiar to the parties, we do not
recite them here.
1. The district court properly granted summary judgment to Defendants-
Appellees Alexander Zaks; David M. Holmes; Daniel A. Reyes (together with
Zaks and Holmes, the Individual Zaks Defendants); Accident Help Line Medical
Group, Inc.; Alexander Zaks, M.D., Inc.; Alta Surgery Center Medical Clinic, Inc.;
Technical Surgery Support Medical Clinic Services, Inc.; Reliable Medical Supply
LLC; Valley Interpreting Services, LLC; and Comprehensive Outpatient Surgery
Center, LLC, because State Fund’s claims against these Defendants-Appellees
were precluded by the broad liability releases contained in the 2010 Settlement
Agreements. The district court correctly determined that the releases protected all
of these Defendants-Appellees because even State Fund’s claims against the
Individual Zaks Defendants were premised on acts within the scope of their agency
relationships with lien claimants, such that liability was precluded by the releases’
plain terms.
The court also correctly held that there were no grounds for rescinding the
2010 Settlement Agreements. California Civil Code § 1689 provides that “[a]
party to a contract may rescind the contract” if his consent thereto was “obtained
through duress, menace, fraud, or undue influence, exercised by or with the
3 connivance of the party as to whom he rescinds.” Id. § 1689(b)(1). For fraud to
justify rescission, however, it must be extrinsic. California “will not relieve a party
from the effect of a judgment claimed to have been obtained by fraud” if the fraud
charged “relates to matters upon which the judgment was regularly obtained and
where an opportunity was given to the party against whom it was entered to contest
the matters in issue, or present any defense which was available,” or if the fraud
“was directed to or bore upon the claim or issue which was before the court for
determination, as when a judgment is entered upon a fraudulent claim, or is
procured by false testimony, where the party had an opportunity to be heard as to
these matters.” Flood v. Templeton, 92 P. 78, 81 (Cal. 1907); see also La Salle v.
Peterson, 32 P.2d 612, 612-13 (Cal. 1934).
Here, there was no extrinsic fraud to justify rescission. All of the allegations
of fraud relate to the negotiation of the 2009 Settlement Agreement, so it is almost
a logical impossibility that such fraud would be extrinsic to the 2010 Settlement
Agreements. Specifically, State Fund had the opportunity to be heard regarding
the validity of the 2009 Settlement before the arbitrator and decided to negotiate
the superseding 2010 Settlements instead. State Fund had the opportunity to
investigate the fraudulence of the Zaks Entities’ billings before entering into the
2010 Settlements and did so in depth, with the help of outside counsel. State Fund
then had the opportunity to contest the fairness of the 2010 Settlements before the
4 arbitrator as well, and did not. These facts decide the issue. The inclusion of a
conspiracy allegation does not “operate to change what would otherwise be
intrinsic fraud into extrinsic fraud.” Tracy v. Muir, 90 P. 832, 835 (Cal. 1907).
There was also no connivance. For connivance to justify rescission, a
contracting party who enters into a contract under duress must show that another
contracting party, although not responsible for the duress, “knows that it has taken
place and takes advantage of it by enforcing the contract, particularly a contract
made with inadequate consideration.” Chan v. Lund, 116 Cal. Rptr. 3d 122, 134
(Ct. App. 2010) (citing Leeper v. Beltrami, 347 P.2d 12 (Cal. 1959) (en banc), as
modified on denial of reh’g (Dec. 30, 1989)), as modified on denial of reh’g (Oct.
28, 2010). State Fund cannot make such a showing. The 2010 Settlement
Agreements all contained a provision that stated that “[n]o party executed [the]
Agreement under duress, economic or otherwise.” Because any assertion that the
Zaks Defendants connived with respect to the 2010 Settlement Agreements
depends on the notion that Roth’s entry into the 2009 Agreement and Defendants’
attempt to enforce the 2009 Agreement coerced State Fund into entering the 2010
Agreements, this provision waives and thus forecloses State Fund’s connivance
argument.
2. The district court properly granted summary judgment to Defendant-
Appellee Bruce Roth because there was insufficient evidence of concerted action
5 between Roth and any other Defendant-Appellee. State Fund has failed to
establish essential elements of its RICO and RICO conspiracy claims: State Fund
has not introduced evidence to show that Roth was associated together with any
other Defendants-Appellees for a common purpose of engaging in a course of
conduct, and intended to participate in the association in fact.
3. The district court properly granted summary judgment to Defendants-
Appellees Sana Ullah Khan; Physicians Mobile Medical Group, Inc.; Precision
Care Medical Group; True Imaging Medical Group; Windstar Medical Associates;
Crescent Diagnostic Medical Group, Inc.; and Crescent Comprehensive
Management, Inc. because State Fund’s claims against them were barred by the
four-year statute of limitations for civil RICO actions. See, e.g., Pincay v.
Andrews, 238 F.3d 1106, 1108 (9th Cir. 2001). State Fund has not introduced
evidence of new acts or injuries within the four years preceding this suit; a third-
party’s collection of claims no longer owned by these Defendants-Appellees does
not restart the statute of limitations with regard to State Fund’s claims against
them. Cf. Grimmett v. Brown, 75 F.3d 506, 509-14 (9th Cir. 1996) (concluding
that statute of limitations began to run when plaintiff filed an adversary complaint
in a related bankruptcy proceeding and rejecting notion that more recent acts
inflicted any new injury).
For the foregoing reasons, the district court’s grant of summary judgment to
6 all Defendants-Appellees is AFFIRMED.