Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 1 of 14
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`CALIFORNIA SPINE AND
`NEUROSURGERY INSTITUTE,
`Plaintiff/Counter-Defendant,
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`v.
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`UNITED HEALTHCARE INSURANCE
`COMPANY, et al.,
`Defendants/Counter-Plaintiff.
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`Case No. 19-CV-02417-LHK
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY
`JUDGMENT AND DENYING
`DEFENDANT’S MOTION FOR
`SUMMARY JUDGMENT
`Re: Dkt. Nos. 66, 67
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`Northern District of California
`United States District Court
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`Plaintiff California Spine and Neurosurgery Institute (“Plaintiff”) sues Defendant United
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`Healthcare Insurance Company (“Defendant”) and Does 1 through 25 for breach of implied in fact
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`contract and breach of express contract. ECF No. 30 (“SAC”) ¶¶ 46–60. Defendant asserts a
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`counterclaim against Plaintiff for money had and received. ECF No. 51 ¶¶ 22–24. Before the
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`Court are Plaintiff’s motion for summary judgment on Defendant’s counterclaim, ECF No. 66,
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`and Defendant’s motion for summary judgment, or in the alternative, for partial summary
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`judgment, on Plaintiff’s Second Amended Complaint, ECF No. 67.1 Having considered the
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`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
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`
`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 2 of 14
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`parties’ submissions, the relevant law, and the record in this case, the Court DENIES Plaintiff’s
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`motion for summary judgment and DENIES Defendant’s motion for summary judgment.
`I.
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`BACKGROUND
`A. Factual Background
`Plaintiff is a “medical facility dedicated to the care and treatment of spine injuries and/or
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`conditions” located in Campbell, California. SAC ¶¶ 1, 8. In March 2018 and July 2018, Plaintiff
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`rendered “medically necessary” “spine surgeries” to three patients—D.B., L.M., and M.B.—
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`whose health insurance benefits were sponsored and administered by Defendant.2 SAC ¶¶ 12, 20,
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`25, 30, 36, 41; Onibokun Decl. ¶ 6, Exhs. A, D, H. All three patients worked for the same
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`employer, Apple, Inc. (“Apple”), and were “beneficiar[ies] of a health plan . . . administered” by
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`Defendant. SAC ¶¶ 11, 24, 35; Onibokun Decl. ¶ 6.
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`All patients owned an identification card from Defendant that was presented to medical
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`providers in order to obtain medical care. SAC ¶¶ 11, 24, 35. Defendant instructed patients to
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`present an identification card “to assure medical providers that they would be paid for medical
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`care . . . at a percentage of the usual and customary value for such care.” Id. Furthermore, the
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`patients’ employer published a summary of the benefits of patients’ medical plans and noted that
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`the plans paid 70% of eligible expenses for care from out-of-network providers.3 Id. ¶¶ 12, 25, 36.
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`Plaintiff was an out-of-network provider under the health plans administered by Defendant. Id.
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`¶ 9.
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`D.B., L.M., and M.B. experienced back pain and sought medical services from Plaintiff.
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`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
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`
`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 3 of 14
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`Id. ¶¶ 13, 26, 37. For each patient, Plaintiff contacted Defendant to verify medical eligibility
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`benefits, and Defendant’s client services representatives “either expressly or impliedly assured”
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`Plaintiff that Defendant “carried the financial responsibility to pay for” all three patients’
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`“anticipated medical care at 70% of the usual and customary value for such care.” SAC ¶¶ 17, 27,
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`38; Ernster Decl. Exh. A at 144–45; Onibokun Decl. Exhs. B, E, I. Defendant’s affiliate then
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`allegedly sent Plaintiff authorization letters for the services to Patients D.B., L.M., and M.B., each
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`of which specified the services to be performed by procedure code and stated that “[a]fter review
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`of the information submitted and your plan documents, it was determined that this service is
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`covered by your plan.” Onibokun Decl. Exhs. C, G, J.
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`Based on the existence of an identification card issued by Defendant, the pre-authorization
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`discussions and the authorization letter, and “the express and/or implied resultant assurances” that
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`Plaintiff “would be paid at least 70% of the usual and customary value of its medical services
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`anticipated to be rendered,” Plaintiff provided treatment to D.B., L.M., and M.B. and submitted
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`claims for payment at the usual and customary rate for such services. SAC ¶¶ 20–21, 30–31, 41 –
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`42. Plaintiff alleges, however, that Defendant significantly underpaid Plaintiff and owes
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`$206,909.66 plus interest and other costs. Id. ¶¶ 21–23, 31–34, 42–45, 69. Conversely, Defendant
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`alleges that Defendant overpaid Plaintiff for the services to Patient D.B. by $98,140.00. ECF No.
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`51 ¶¶ 22–24.
`B. Procedural History
`On December 20, 2018, Plaintiff filed suit against UHC of California doing business as
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`UnitedHealthcare of California, Apple, and Does 1 through 25 in the Superior Court of Santa
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`Clara County. ECF No. 1-1 Ex. A (“FAC”). Plaintiff’s complaint asserted three causes of action
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`against the defendants: breach of implied in fact contract, breach of express contract, and quantum
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`meruit. Id.
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`On February 25, 2019, Plaintiff amended the complaint and replaced UHC of California
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`with United Healthcare Insurance Company. FAC ¶ 5. On April 23, 2019, Plaintiff filed a request
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
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`3
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`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 4 of 14
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`for dismissal of Apple in state court. ECF No. 1-1 Ex. E. On April 30, 2019, Plaintiff also filed a
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`request for dismissal of UHC of California in state court. ECF No. 1-1 Ex. F. United Healthcare
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`Insurance Company was the only remaining named defendant. On May 3, 2019, Defendant
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`removed the case to this Court. ECF No. 1.
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`On May 10, 2019, Defendant moved to dismiss all three causes of action in Plaintiff’s First
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`Amended Complaint. ECF No. 7. On September 17, 2019, the Court granted in part and denied in
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`part Defendant’s motion to dismiss. ECF No. 28. First, the Court denied Defendant’s motion to
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`dismiss Plaintiff’s claims for breach of implied in fact contract and breach of express contract
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`because Plaintiff pled that “Defendant gave ‘express and/or implied resultant assurances’ that
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`Plaintiff ‘would be paid at least 70% of the usual and customary value of its medical services
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`anticipated to be rendered.’” Id. at 6 (quoting FAC ¶¶ 17, 27, 38). As a result, the Court concluded
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`that Plaintiff had adequately alleged that Defendant exhibited an intent to contract. Id. at 6–7.
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`Second, the Court granted Defendant’s motion to dismiss Plaintiff’s quantum meruit claim
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`with leave to amend. Id. at 8–10. Among other things, a quantum meruit claim requires that
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`services were performed at the defendant’s request. Id. at 8–9. Because Plaintiff had only alleged
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`that Plaintiff requested services, the Court dismissed the quantum meruit claim with leave to
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`amend. Id. at 9–10.
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`On October 17, 2019, Plaintiff filed its Second Amended Complaint and realleged the
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`same three causes of action for breach of implied in fact contract, breach of express contract, and
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`quantum meruit. ECF No. 30 (“SAC”) ¶¶ 46–69. Plaintiff, however, added only two new
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`paragraphs. See id. ¶¶ 63-64. Those paragraphs allege that “[p]rior to surgery for Patient D.B.,
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`California Spine received a pre-procedure authorization letter from OrthoNet, on behalf of United”
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`and that “[p]rior to surgery for Patient L.M. and Patient M.B., California Spine was informed, by
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`agents of United as stated above, that the pre-authorization process was not required.” Id.
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`On October 31, 2019, Defendant filed a motion to dismiss Plaintiff’s quantum meruit
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`claim. ECF No. 32. On February 24, 2020, the Court granted Defendant’s motion to dismiss
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
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`4
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`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 5 of 14
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`Plaintiff’s quantum meruit claim with prejudice. ECF No. 49. The Court concluded that Plaintiff
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`had not alleged that the services were performed at the defendant’s request, as required for a
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`quantum meruit claim. Id. at 6–8. Because Plaintiff had failed to cure deficiencies identified in the
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`Court’s prior order, the Court concluded that amendment would be futile and dismissed Plaintiff’s
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`quantum meruit claim with prejudice. Id. at 8.
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`On March 9, 2020, Defendant filed a counterclaim against Plaintiff for money had and
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`received. ECF No. 51 ¶¶ 22–24. Defendant alleges that Defendant overpaid Plaintiff for the
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`services rendered to D.B. in the amount of $98,140.00. Id. ¶ 3.
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`On November 20, 2020, Plaintiff filed a motion for summary judgment on Defendant’s
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`counterclaim. ECF No. 66 (“Plaintiff’s MSJ”). That same day, Defendant filed a motion for
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`summary judgment, or in the alternative, for partial summary judgment, on the Second Amended
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`Complaint. ECF Nos. 67, 68 (“Defendant’s MSJ”). On December 4, 2020, Plaintiff and Defendant
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`filed oppositions. ECF No. 69 (“Plaintiff’s Opp”); ECF No. 70. (“Defendant’s Opp.”). On
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`December 11, 2020, Plaintiff and Defendant filed replies. ECF No. 73 (“Defendant’s Reply”);
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`ECF No. 77 (“Plaintiff’s Reply”).4
`II.
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`LEGAL STANDARD
`Summary judgment is proper where the pleadings, discovery, and affidavits show that
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`there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as
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`a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of
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`the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact
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`is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving
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`party. See id.
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`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
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
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`Northern District of California
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 6 of 14
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`The Court will grant summary judgment “against a party who fails to make a showing
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`sufficient to establish the existence of an element essential to that party's case, and on which that
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`party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an
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`essential element of the nonmoving party's case necessarily renders all other facts immaterial.”
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`Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial burden
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`of identifying those portions of the record that demonstrate the absence of a genuine issue of
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`material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings, and
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`by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
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`designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal
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`quotations omitted). If the nonmoving party fails to make this showing, “the moving party is
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`entitled to judgment as a matter of law.” Id. at 323.
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`For purposes of summary judgment, the Court must view the evidence in the light most
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`favorable to the nonmoving party; if the evidence produced by the moving party conflicts with
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`evidence produced by the nonmoving party, the Court must assume the truth of the evidence
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`submitted by the nonmoving party. Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). The
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`Court's function on a summary judgment motion is not to make credibility determinations or
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`weigh conflicting evidence with respect to a disputed material fact. T.W. Elec. Serv. v. Pac. Elec.
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`Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
`III. DISCUSSION
`Defendant moves for summary judgment, or in the alternative, for partial summary
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`judgment on Plaintiff’s Second Amended Complaint. Defendant’s MSJ at 2–3. Plaintiff moves for
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`summary judgment on Defendant’s counterclaim for money had and received. Plaintiff’s MSJ at 5.
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`The Court first addresses Defendant’s motion for summary judgment. The Court then addresses
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`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
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`
`6
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`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 7 of 14
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`Complaint: (1) breach of implied in fact contract and (2) breach of express contract. Defendant’s
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`MSJ at 2. In the alternative, Defendant moves for partial summary judgment. Id. at 3.
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`Under California law, a cause of action for breach of contract requires “(1) existence of the
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`contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4)
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`the resulting damages to the plaintiff.” Chung v. Nationstar Mortg., 2013 WL 12321999, at *4
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`(C.D. Cal. Oct. 29, 2013) (quoting Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (Cal.
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`2011)). “A cause of action for breach of implied contract has the same elements as does a cause of
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`action for breach of contract, except that the promise is not expressed in words but is implied from
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`the promisor's conduct.” Yari v. Producers Guild of Am., Inc., 161 Cal. App. 4th 172, 182 (2008)
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`(citing Chandler v. Roach, 156 Cal. App. 2d 435, 440 (1957)).
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`Contract formation, in turn, requires “(1) parties capable of contracting; (2) their consent;
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`(3) a lawful object; and (4) a sufficient cause or consideration.” Summit Estate, Inc. v. Cigna
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`Healthcare of Cal., Inc., 2017 WL 4517111, at *3 (N.D. Cal. Oct. 10, 2017) (citing Cal. Civ. Code
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`§ 1550). “In order to satisfy the consent requirement, there must be ‘objective’ and ‘outward
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`manifestations’ that the parties intended to be bound by an agreement.” Id. (quoting Weddington
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`Prods., Inc. v. Flick, 60 Cal. App. 4th 793, 811 (1998)).
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`Defendant contends that there is no genuine issue of material fact regarding whether a
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`contract existed between Plaintiff and Defendant for two reasons. First, Defendant argues that the
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`verification of benefits calls and authorization of services letters do not create a genuine issue of
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`material fact regarding whether a contract existed. Defendant’s MSJ at 13–16. Second, Defendant
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`argues there is no genuine issue of material fact regarding whether a contract existed because the
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`parties had different understandings of what rate Defendant would pay for the services rendered.
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`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
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`
`7
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`Northern District of California
`United States District Court
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`

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`verification of benefits calls placed by Plaintiff’s representatives to Defendant’s representatives,
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`and (2) Defendant’s authorization of services letters. Defendant’s MSJ at 13–16. The Court
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`considers each in turn.
`a. The verification of benefits calls
`Defendant contends that the verification of benefits calls do not demonstrate that a contract
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`existed. Defendant’s MSJ at 13–15. In support of this argument, Defendant cites cases holding that
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`a verification of benefits call between a healthcare provider and an insurer did not create a contract
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`requiring the insurer to pay. For example, in Stanford Hospital & Clinics v. Multinational
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`Underwriters, Inc., another court in this district granted summary judgment to an insurer because
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`the only evidence of a contract stemmed from a verification of benefits call and “the relevant case
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`law weigh[ed] against a finding that verification of benefits alone constitutes consent.” 2008 WL
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`5221071, at *6 (N.D. Cal. Dec. 12, 2008). Similarly, in Cedars-Sinai Medical Center v. Mid-West
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`National Life Insurance Company, another district court concluded that “verification of coverage”
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`could not be “viewed objectively as exhibiting an intent to contract” and thus granted summary
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`judgment to the insurer. 118 F. Supp. 2d 1002, 1008 (C.D. Cal. 2000).
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`However, there are two flaws with Defendant’s argument. First, although some cases have
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`held that a verification of benefits call is insufficient to form a contract, other cases have
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`concluded that a verification of benefits call is sufficient. See, e.g., Enloe Med. Ctr. v. Principal
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`Life Ins. Co., 2011 WL 6396517, at *6 (E.D. Cal. 2011) (finding that “in some instances, a
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`contract may be created on an authorization call”).
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`Second, the instant case is distinguishable from Stanford and Cedars-Sinai because, unlike
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`the insurer in those cases, Defendant sent letters explicitly authorizing the specific services to be
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`provided in addition to the verification of benefits call. See Onibokun Decl. Exhs. C, G, J. Thus,
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`the facts of this case are closer to Regents of the University of California v. Principal Financial
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`Group, where another court in this district denied summary judgment and held that there was a
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`genuine issue of material fact regarding whether the insurer-defendants exhibited an intent to
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`
`8
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`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 9 of 14
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`contract because “defendants in this case provided both verification of coverage and explicit
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`authorization for the hospital stay.” 412 F. Supp. 2d 1037, 1042 (N.D. Cal. 2006). The Court next
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`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
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`that a contract existed. Defendant’s MSJ at 15–16. Specifically, Defendant points to a disclaimer
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`at the end of each letter, which states that “[t]his approval does not guarantee that the plan will pay
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`for the service” in certain circumstances. Onibokun Decl. Exhs. C, G, J.
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`However, Defendant’s argument is unpersuasive. The disclaimer states that “[t]his
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`approval does not guarantee that the plan will pay for the service, when, for example”: (1)
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`“[y]ou’re no longer a member of the plan on the date you receive services” or “the plan ended
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`before you received services”; (2) “you never received services” or “services are found to be a
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`case of fraud, waste, or abuse”; (3) “payment of covered services depends on other plan rules”; or
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`(4) when “services were provided by a doctor, health care professional, or facility that was
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`sanctioned or excluded from government programs at the time of service.” See id. Defendant does
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`not argue that any of those limited circumstances applies here. Thus, the Court concludes that the
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`verification of benefits calls, together with the authorization letters, create a genuine issue of
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`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
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`allegedly formed, Plaintiff and Defendant had different understandings of what rate Defendant
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`would pay for the services Plaintiff provided. Defendant’s MSJ at 16–20. According to Defendant,
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`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.
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
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`Northern District of California
`United States District Court
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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 10 of 14
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`Plaintiff “alleges that an express contract existed between Plaintiff and Defendant by which
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`Defendant agreed to pay Plaintiff at least 70% of Plaintiff’s billed charges for the services,” but
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`Defendant never agreed to pay Plaintiff at least 70% of Plaintiff’s billed charges. Id. at 16.
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`However, Plaintiff does not claim that Defendant agreed to pay 70% of Plaintiff’s billed
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`charges. Rather, Plaintiff’s complaint alleges that Defendant “confirmed that they would pay at
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`least 70% of the usual and customary value of [Plaintiff’s] care” and “agreed to pay for
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`[Plaintiff’s] care at a rate of at least 70% of the usual and customary value of [Plaintiff’s] care.”
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`SAC ¶¶ 48, 56. Similarly, Dr. Onibokun, Plaintiff’s person most knowledgeable regarding
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`payments made by Defendant to Plaintiff for the services rendered to the three patients at issue,
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`testified in a deposition that Defendant’s representative told Plaintiff that the reimbursement
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`“[was] going to be based on UCR [the usual and customary rate].” Ernster Decl. ¶ 4; Exh. A at
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`144:25–145:2. In addition, Plaintiff’s notes documenting the calls with Defendant state that
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`Defendant’s representative said that reimbursement would be “based on UCR.” Onibokun Decl.
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`Exhs. B, E, I. Accordingly, Plaintiff is not claiming that a contract was formed to pay 70% of
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`Plaintiff’s billed charges. Rather, Plaintiff is claiming that a contract was formed to pay 70% of
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`the usual and customary rate of the services Plaintiff provided.
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`Thus, there is a genuine issue of material fact as to whether a contract existed between
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`Plaintiff and Defendant to pay 70% of the usual and customary rate of the services Plaintiff
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`provided. Accordingly, the Court DENIES Defendant’s motion for summary judgment. The Court
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`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
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`received for four reasons. First, Plaintiff contends that Defendant cannot make a showing on the
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`elements of money had and received. Plaintiff’s MSJ at 5–7. Second, Plaintiff contends that
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`Defendant’s request for overpayment was untimely. Id. at 8–10. Third, Plaintiff argues that
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`Defendant’s counterclaim violates the holding of Peterson v. UnitedHealth Group, 242 F. Supp.
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`
`10
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`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 11 of 14
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`3d 834, 847 (D. Minn. 2017). Id. at 7–8. Finally, Plaintiff argues that Defendant has impeded
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`Plaintiff from pursuing Patient D.B., on whose treatment Defendant allegedly overpaid, for
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`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
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`and received. Plaintiff’s MSJ at 5–7. The Court disagrees for the reasons explained below.
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`“A cause of action for money had and received is stated if it is alleged the defendant ‘is
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`indebted to the plaintiff in a certain sum for money had and received by the defendant for the use
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`of the plaintiff.’” Farmers Ins. Exchange v. Zerin, 53 Cal. App. 4th 445, 460 (1997) (quoting
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`Schultz v. Harney, 27 Cal. App. 4th 1611, 1623 (1994)). The cause of action is viable “wherever
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`one person has received money which belongs to another, and which in equity and good
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`conscience should be paid over to the latter.” Gutierrez v. Girardi, 194 Cal. App. 4th 925, 937
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`(2011) (quoting Weiss v. Marcus, 51 Cal. App. 3d 590, 599 (1975)). “[T]he plaintiff must prove
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`that the defendant received money ‘intended to be used for the benefit of [the plaintiff],’ that the
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`money was not used for the plaintiff’s benefit, and that the defendant has not given the money to
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`the plaintiff.” Avidor v. Sutter’s Place, Inc., 212 Cal. App. 4th 1439, 1454 (2013) (quotation
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`omitted).
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`At the heart of Defendant’s money had and received claim is Defendant’s allegation that
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`Defendant overpaid Plaintiff for the services rendered to Patient D.B. by $98,140.00. ECF No. 51
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`¶¶ 3, 22–24. Plaintiff argues that Defendant cannot show the essential elements of money had and
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`received for three reasons: (1) Defendant cannot show that Plaintiff received an overpayment; (2)
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`Defendant cannot show that the money received by Plaintiff was intended to be used for
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`Defendant’s benefit; and (3) Defendant had not made a prior request for return of the alleged
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`overpayment. Plaintiff’s MSJ at 6–7. The Court addresses each argument in turn.
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` First, Plaintiff contends that Defendant cannot show that Defendant received an
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`overpayment for the services rendered to Patient D.B. Id. at 6. Specifically, Plaintiff contends that
`11
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`
`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 12 of 14
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`Defendant has paid Plaintiff only $60,330.30 for the services rendered to Patient D.B., which is a
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`lower amount than the $98,140.00 that Defendant alleges that Defendant overpaid Plaintiff for the
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`services rendered to Plaintiff D.B. Id. However, there is a genuine issue of material fact regarding
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`how much Defendant paid Plaintiff for the services rendered to Patient D.B. Indeed, Defendant
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`points to evidence that Defendant has paid Plaintiff a total of $153,000.00 for the services
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`rendered to Patient D.B. Specifically, Defendant issued a Provider Remittance Advice to Plaintiff,
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`which states that Defendant paid a total of $153,000.00: $60,330.30 via transfer to Plaintiff, and
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`$92,669.70 by reducing an overpayment made on a claim for Patient M.H., who is not at issue in
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`the instant case. Onibokun Decl. in support of Plaintiff’s MSJ, Exh. B at 3, 6. Thus, there are
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`genuine issues of material fact regarding whether Defendant overpaid Plaintiff for the services
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`rendered to Patient D.B.
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`Second, Plaintiff contends that Defendant cannot show that the money received by Plaintiff
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`was intended to be used for Defendant’s benefit. Plaintiff’s MSJ at 6. Specifically, Plaintiff argues
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`that the money received by Plaintiff was intended to be used for the benefit of Patient D.B.
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`because Patient D.B. had paid premiums for healthcare benefits provided by Apple and
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`administered by Defendant. Id. However, Defendant was the administrator of Patient D.B.’s health
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`plan, and “[i]t is not uncommon that an insurance company, bank, or other third-party will raise a
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`Money Had and Received claim even though the insured or payee was the one who literally
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`received the benefit of the money at issue.” Lincoln Nat’l Life Ins. Co. v. McClendon, 230 F.
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`Supp. 3d 1180, 1191–92 (C.D. Cal. 2017) (evaluating claim for money had and received under
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`California law).
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`Finally, Plaintiff argues that Defendant had not made a prior request for the overpayment.
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`However, a claim for money had and received does not require that the plaintiff has made a prior
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`request for the overpayment. Rather, the claim requires only “that the defendant has not given the
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`money to the plaintiff.” Avidor, 212 Cal. App. 4th at 1454 (quotation omitted). Plaintiff never
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`contends that Plaintiff has given the allegedly overpaid money back to Defendant. Thus, there are
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`Case No. 19-CV-02417-LHK
`ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT
`
`12
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`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-02417-LHK Document 83 Filed 02/12/21 Page 13 of 14
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