move to the next case on the argument counter which is i v solutions inc vs empire health choices surance inc the counsel for that case could please come forward i'm going to focus the argument on two particular issues obviously will answer any questions of the court has the st question i want to ask or focus on is whether there was ever even a denial in this case much less equivocal or unequivocal until two thousand and fourteen and then the nd questions that i want to focus on is the leave to amend issue as to why leave was not granted and in our view should have been used me and this court unlike in this case the district court unlike the pacific  case they both side of the same statute with respect to the statue of limitations there's no no limitations in the contract so we're going to apply a reasonable time in our view in the pacific here case they appropriately reconcile that with meaning that there has to be an unequivocal denial and i find the cases don't necessarily always tie them together but the reality is that it's fair to say and i think the way it's reconciled is that it is unreasonable to believe are going to get paid after there's an unequivocal denial and i think that really is is the central issue with respect to what triggers the statue limitations and work it's confusing it's also an issue i thought the polling i thought this case remind me if i'm not remembering the record right i thought in this case though you got partial payment on each of the claims yes there were payments and then there were further payments as late as july of two thousand and thirteen ok but to me that just seems like a different case that takes us out of the unequivocal denial realm because then equivocal denial cases as i understand them it's more were you haven't been paid yet and so you're kind of there's a back and forth and you're waiting to see what happens but when someone says here's the check i know you sent me a bill for one hundred thousand dollars but here's a check for fifty dollars and you know i'm done presumably representing that that's the payment on i think you're entitled to i don't know why why why would you think that that's not that big they denied your claim to the extent that you wanted more than die that they gave you well again and in this case so essentially would it in response to the court's question in this case there is nothing of record as to what was said in of two thousand and twelve there is a record in the complaint it says that they got less than what they were entitled to respectfully i think that the unequivocal denial specially and again this is goes into the issue of the amendment had we been able to sleep facts more facts relating to the health care industry which is unusual it's frankly not uncommon to receive a partial payment and then further discussions both sides recognizing this is what we're paying we need some for the records it is a back and forth process so your honor i don't believe that mere short pay it should be at least in the health care industry in this kind of situation dealing with out out of state network would guess what you will knowledge in the complaint empire agreed to pay you your bill charges that's  a situation where there's calls for the payment of money and it can be done instantly and it must be performed immediately upon the thing to be done being exactly ascertained and you and your allegation is they agreed to pay everything that you build which can be exactly ascertained at the moment you bill it well it went to ascertain if assuming again that's why the industry is important if this were delivery of lumber and we gave an invoice there could be no reasonable dispute that all is due but again the facts that we wanted and i didn't have the opportunity but i outlined at the end when i talk about the amendment it is not uncommon even though you say going to get bill charge well what were you bill charges i mean that that's an issue they may ask for but they may ask for more medical records or they may ask for what exactly was this work that needed to be done what was this code how did it relate to this it's just the industry itself the billing system every time there's an inquiry it goes back it's thirty to sixty days back and forth is the kind of allegations that would have been made to explain and to address your honor's point because it is that that's the whole point is that it's a i think the case law talking about  that particular statute says it is circumstantial you have to understand the setting and the industry and i think that the court cut off the opportunity to at least have the opportunity to explain why that statute did not apply in this essentially i think that really is critical both to the issue of whether or not there was an i denial that triggered the statue of limitations and then whether or not there should have been leave to a man both require an understanding of what the surrounding circumstances and what particular industry you're dealing with and the court the track would simply never have the opportunity to hear that information already because he doesn't like in terms of what exactly you said you wanted to do in your amendment tell me what exactly you said you wanted to add as allegations we would explain we could have actually gone through each specific on what you told the district court we didn't double we didn't have the opportunity happened was or what it what do you say in your brief here in the brief we outlined essentially an example of the types of issues without even going through that input in exact records as to what the record shows but the kinds of issues that we would look at that billing in these situations are not cookie cutter st of all secondly there's delays in this in this issue a lot of times buildings are actually delayed you get dates of service and then buildings are delayed you wait till all the service of the service is finished  you hold off till treatments completed since not a contract member these and out of state out of out of network provider oftentimes insurance companies have additional requests for information and that can take a long time in and then we further with allege that every time a request for information which is not uncommon it takes thirty dollars to sixty dollars days bottom line what we would have explained is that the court was bothered it just simply cannot feature possible that seventeen months after you're not getting paid and that would be absolutely accurate if you were dealing with a delivery of lumber and a bill and that's really the difference well i think i would understand your argument if you had never been paid anything and you know that you were just kind of you weren't getting a denial they were you just kept getting the runaround basically right that well we need more in from a or supply more information and you can then they say well we need more information or we're thinking about it and so you're getting strong along and in that context i understand why you would say hey we need to show you that in the in this industry at least get in trouble long for seventeen months is not uncommon and it wasn't unreasonable for us to think that we were still going to get paid at the end of that it just seems to me it's a different scenario where you send the bill and  your contention is that no you're entitled to one hundred percent of that right that's your yes your assertion that the contract was they agreed to pay us one hundred percent of what we sent them so in that scenario where they send you a payment it's just seems to me it's clear they're saying no we're not we don't think you're entitled to whatever you think the contract is we don't think you're entitled to this this is what we're going to pay you are i have to stand the issue and i agree that i still think that understanding the industry with allegations would be helpful but on top of it in this particular case not it's not just a matter of paying and that was the end of it and getting the runaround we get sites is very specific communications were just the opposite was said it wasn't an unequivocal denial it was in april of two thousand and twelve we're reviewing the claims and as the complaint indicated that's a term of art in april of two thousand and twelve they said there was a confirmation of the services were provided one hundred percent working on processing claims as late as two thousand and twelve and then in july two thousand and thirteen within the four years of the action being filed they said we're repricing and we're going to make additional payments so we got more on some payments and september of two thousand and thirteen we got some additional small payments and there was less than four years after before  the june july th communication of one assumes that was not being you know no question in the court and actually the case there are cases that say there's some point where you just can't put your head in the sand is what the court i think is suggesting in this case both because it's not that abnormal in the industry to get that string strung along coupled with the affirmative out statements that were being made i think that at the very least the i v s should been provided the opportunity to make that showing to the joy of the court to have a loud a court to make that determination yeah there's a line of california cases i think but what you're tell me if i'm wrong on this that  says you know essentially when you get that initial denial let's just say in this context it's more in the other case but let's just say you get an initial denial they just say you know what we're not paying this and if you'd like to have us reconsider feel free to provide us more information we have a line of california cases that says no the claim accrues when they tell you no and we could we don't want to discourage insurers or other you know  from allowing some kind of an appeal an internal appeals process but the claim accrues and because it's a four year statute of limitations that's plenty of time for all this back and forth we're not going to be worried about you're sort of getting shut out and so if that line of cases applies in this context it seems to me that the district court could say that it's irrelevant you're that what you want to add to the complaint doesn't matter if i treat the partial payment as the equivalent of that initial denial and then your claim accrued and you had four years after that to do this back and forth the law and we will be addressing if you don't get tired of me in the other case a little bit a little more detail about when you get a you'll be whether or not that actually triggers it but the cases really don't focus it could be any o b that says we're paying with dollar we're paying you zero we're paying you ninety percent it's really the e o p right and whether or not it's a statement that that's their last position in this case according to the complaint there there is nothing that stated there's just a short payment in april of two thousand and twelve there's no evidence that they did they asked for more information that they say with this all we're paying all we have in this case is the short pay and standing alone your honor i think under the circumstances that would not be even under the caliph other life cases and unequivocal donato i i that's what i said understand i could i think i understand if they send you a letter back saying thank you we received this outrageous bill and there's no way we're going to pay this unless you give us more information and it's kind of left in limbo and then you get into but when you send a bill and somebody says here's the payment that i think you're entitled to it seems to me that's the equivalent in the e o p context of the sort of denial and then but you're free if you think that we're we've short page you feel free  to avail yourself of our sort of internal appeals process that's fine but your claim has accrued when you get that check and realize oh no they've not given us our full i think the statute triggers when there is this unequivocal denial a short payment and again i'm bleeding over t pacific here because that we know what was communicated to me in this case i never or i d s never had the opportunity because if they made it short pain april of two thousand and twelve and they are not just invited or if you want to appeal for all we know and the record is not clear they may have said but we need these for the records to further consider this or there we just don't know from on the basis of the complaint it's not a situation that your honor is pointing to where they say this is it is what we think we're paying it's not and can be viewed as an unequivocal denial it's your complaint i mean you were in a position to allege whatever you thought was necessary in terms of they at me because i gather what you're saying is that we should interpret the partial payment as here's a good faith sort of down payment on what we think is ultimately owed we recognize that we're going to have to pay you more later because that's not the saddle i'm not as i'm not asking the court to interpret it one way or the other i'm asking the court for an opportunity to elaborate further because seeing where the codes in the courts district courts focus was i should have been given that opportunity because we don't know like i'm not going to i can't report indicating off the record and that's why the courts are so liberal about granting but can i point out though the your what you gave us at the end of your brief your blue brief in terms of what you would add had nothing to do with what i was talking about so i don't see why you would be why would we give you now an opportunity to amend your complaint to fix this problem when you should have laid out whatever you thought was relevant on the point that yes they gave us a partial payment but they made clear that this wasn't in their mind the end of the story and they were going to give us more any later what i put at the end of the brief was hypothetical i did not want to go outside the record because i was never given the opportunity to go outside the record but these are all the issues that the court addressed are issues that could have been raised or hood have been discussed the only question is given what the court given what the court was faced with in the complaint and understanding the industry and based on the kinds of issues that could be raised the motivation should apply but let's continue the conversation we're having assuming there's a poor statue limitations and hopefully we'll get to the two year you're absolutely right that the partial payments would be at least a point at which limitations perry would start we think it's actually earlier than that for the comment about the six hundred and fifty seven immediate payment rule i heard counsel respond to that question by saying well this industry is different the law doesn't change depending on the industry here we heard the concession from my opposing from opposing counsel that the contract said that there were cases that there was a line of cases also isn't there that says you know if the time for payment is not stated and here there's no allegation that it was like you know invoice paid within thirty days we don't know if no time is stated then that's sort of a reasonable time and it seems to me it would very much matter what's reasonable in that industry if it's common for you know seventeen months to elapse between standing of the invoice and receipt receipt of payment in a particular industry then it doesn't seem crazy to me that a party in the point of shoes would would not feel like they have been stiffed even though they're still waiting all these months later your honor there's a lot of help to get the chance to unpack it whether or not someone feels like they're being steph does not go to the a cruel of the it goes to equitable stoppel which we can also discuss but there are two sentences in section six hundred and fifty seven the st sentence is what you've been talking about the nd sentence is what we believe applies here that section expressly indicates that when the thing to be done is capable of being done immediately and it specifies the payment of money only which is what we're talking about here that has to be done immediately once the thing to be done is exactly ascertained that's the language of the statute and one dollar of the things that troubles me about this case on less everything is just totally for of all of us i mean this strikes me as a very unusual procedural posture and i understand your arguments but why was this fair  the world but i haven't seen the us i think and that has happened your honor i'm sure it has and but the more important point is that it should happen when the complaint by its terms shows that the suit is untimely that itself is going to be rare but i think that's what this complaint does but that combined with no leave to a man and at all i mean if it's absolutely true that nothing they could say could save the district court can enter the same ruling after twelve and there was a five year statue of limitations and the complaint was not brought until two thousand and nineteen but then the court doesn't have to give leave to amend because it's clear from the face of the complaint that there is it would be a futility to go through that there's nothing that could be said that would save the complaint so the question is why do you think this fits into that kind of charges and that is the contract we've all heard that is when duty to pay arose when the payments were not made in fact when small payments in fact were made certainly i v s could have gone to court there's no way that the california courts would say that empire could unilaterally keep i v s out of court by stringing them along it wouldn't matter that's the law why in this context why shouldn't they be allowed for example to a judge that normal trade usage normal customs of the trade mean that even if you're promising to pay a bill charges that bill charges as a term of art and that when you're looking at bill charges these are i mean you're billing big numbers in this industry there's all this back and forth and paying a small amount doesn't mean it's the end of it and the trade usages you have this dialogue that goes on for a year or two years i mean maybe that's nonsense but why shouldn't they be given the opportunity to make that alec because you know it would have when this was when this case was concluded on a motion to dismiss not on a motion for summary judgment after they had the opportunity for discovery your honor because those allegations would not be pertinent to the legal viability of this claim so under the statute and the statute does not change depending on the industry the statute is categorical under the statute when the thing to be done is just the payment of money you can bring the suit immediately that's the a cruel of the claim it's what insures that someone who is not getting the money they're owed can get to court and not allow themselves to be strung along if they don't want to even if even if what they were alleged theoretically in an amended complaint is that industry practice is there's always a way into the back and forth where there are big numbers involved between the provider and the insurer the provider and the payer well well let's be clear like this is an unusual contract that's alleged here even for this industry if there is to be a contract normally that contract would speak to dispute resolution but the contract that they allege here is very unusual under their contract there was no such thing that paragraph forty six according them sets forth verbatim the terms of the contract there's nothing there i just picked this resolution so it could be that in most industry instances in the industry there would be this time for a back and forth that would be built into the contract such that there would be no breach until after that it's palm and it's a theoretical matter about could there could be an allegation that that's built into the term build charges in the industry theoretically we just heard from counsel that thought so he agreed that once the bills were sent empire was up to pay that's that's what i heard him say out there today and i think that's what the complaint says so so under at least this contract that the complaint as written that it should be the nd clause of one thousand six hundred and fifty seven that would apply and that that would be an alternate ground for affirming the district court's decision but that we viewed the district court's base basing its decision on the st clause of one thousand six hundred and fifty seven as in error wouldn't that be a reason for saying that perhaps that may have colored the district court's decision not to allow amendment and that that might be a reason to give the district court an opportunity to reconsider whether or not it ought to allow amendment no your honor of course this and if if amending would be futile there would be no reason to send that just record the parties back that's absolutely true if if if we were to determine that amendment would be futile there would be no point in sending it back and my point is that amendment would be futile because this complaint by its terms already shows that there is that the suit was untimely and no amendment could show that consist of the allegations of this complaint so we've been talking about the four years definitely patient but if i'm mad like to take a moment to talk about why i believe th two years nationalization should apply as a matter of law rendering our entire discussion here irrelevant the two year statute limitations and the four years to actual imitation is are set forth in california code of civil procedure sections three hundred and thirty seven thousand three hundred and thirty nine and the key under  statutory language and the california supreme court case law as whether or not the later writings are contracts in themselves so our complaint affirmatively alleges and this is not disputed that this was documented and memorialized and that's what it was saying that's what they say that's that's a quote from the complaint so we will take that its word document or more last the meaning of that allegation is that the later writings provided evidence of the earlier oral contract but the california supreme court has made express in cases like mccarthy and o'brien that it is not sufficient that a later writing merely provide evidence of the earlier oral agreement that but doesn't the plaintiff allege that the at least the time period covered by one or more of those retro authorizations is broader than the time period covered by the the initial all agreement such that what they are suing on in fact is whatever's in that written retro authorization no your honor what they're saying is that the oral contract had no time limitation at that written retro authorizations and this is another point i would want to get to are inconsistent with the all contract in that their time limited and that they presuppose that authorizations were necessary when in fact the suppose that contract didn't speak a word about authorizations so this is a separate point which is that the later writings could not be a basis for the contract action when they are inconsistent with the terms of as i thought what they had said about the initial oral agreement was that it only covered treatment between point a and point b no and then the  later the subsequent written authorization kind of expanded that so that it was a longer period that's not correct now i don't have that great they say that these are the verbiage in terms of the contract you're there working for them this is america forty six honor a few points already got a response to that though the st is that of course we're looking to whether or not the complaint plausibly shows an attack of much relief they have never even alleged let alone plausibly that the later written memorial earlier oral agreement and indeed the kind of the complaint never sets forth any basis upon which any court could conclude that the later writings were contracts in themselves there was no word of offer acceptance no meeting of the minds no consideration indeed later writings only added to the suppose an earlier oral authorizations so there would be no separate consideration well i mean if if what you're saying is correct i mean wouldn't that be something that typically someone would have the opportunity to remember on where the allegation news that their complaint on doesn't lay out an offer as opposed to that the complaint is inconsistent with that allegation normally that would  but again i have to go back to the point this complaint is affirmatively inconsistent with any theory that will allow them to invoke the for your stash limitation that's all for a few differences st as i indicated the written authorizations were affirmatively inconsistent with the supposed contract contract the oral one if that's the case and again mccarthy and o'brien other cases make this clear it's not enough it's not enough merely to provide evidence of an oral agreement in order to try to get the for your stash limitations that would be consistent with the statutory text which requires that the contract action be founded upon the written instrument these writings were not according to the terms of this complaint ok thank you thank you counsel you have a little bit of time left before the o'brien case and the other case that they cite are situations where the writing doesn't have the terms that you're relying on one of the cases said oh you'll be the superintendent that said nothing about compensation so i don't think those cases are distinguishable the final point wrestles with the issue of whether or not that is a an unequivocal denial in april of two thousand and twelve and the leonard case is consistent under six hundred and fifty seven dollars this is there has to be a demand and a refusal now is a partial payment refusal that's the argument i don't think in this industry a mere refusal to pay out actually a mere short pay is constitutes a refusal lenard requires a refusal coming to you think the short pay is just kind of the opening bid in a negotiation as to what we're finally going to arrive i'm going to acknowledge your honor that on the basis of what's in the complaint this is we don't know that's the truth that the trial court didn't have that information and the fundamental unfairness was no oral argument and opposite it basically a ruling where it rejected the reasoning of both sides said it's a difference that's an imitation it's never an opportunity to even explain why a motion to amend would be granted so i think since we can review to know  whether your proposed amendment would be futile or not then we can look at what you've said in your oral argument now and in your brief is what you would say in your amended complaint is there anything else he was saying your mandate complaint that you haven't told us all i would do that i have not done your honor because while i drafted the complaint i would also look for those communications to see if they were requesting more information or were they giving the runaround in other words a little more detail but i think that you have the jet that you're on is have the gist of what would be said in that amended complaint aside from i think it is critical to explain what happened in april of two thousand and twelve there might be maybe i have not really fully followed you would say in your amended complaint st that the industry practice is to extend these situations over a long period time with a back and forth and secondly that that was true here or you don't know that it's true i know that it's true here that aspect what i don't know is true is whether and candidly in april of two thousand and twelve was it something that could be construed as an absolute denial or just a short break but i would want to address that issue in the amended complaint ok thank you very much thank you counsel case just argued is submitted