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Filed 2/3/22 Rodriguez v. Eisenhower Medical Center CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

LEONOR RODRIGUEZ,

Plaintiff and Appellant,

v.

EISENHOWER MEDICAL CENTER,

Defendant and Respondent.

E075172

(Super.Ct.No. PSC1706058)

OPINION

APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. 

Affirmed.

McCune Wright Arevalo, Richard D. McCune, Michele M. Vercoski, Steven A. 

Haskins and Tuan Q. Nguyen for Plaintiff and Appellant.

Jones Day and Nathaniel P. Garrett for Defendant and Respondent.
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Plaintiff Leonor Rodriguez appeals from a judgment dismissing her complaint 

against defendant Eisenhower Medical Center after the trial judge granted the hospital’s 

motion for summary judgment. Rodriguez alleged Eisenhower violated California’s 

Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) by failing to

adequately disclose the facility fee associated with her outpatient procedure. She alleged 

she would have gone elsewhere for the procedure had she known of the fee.

In granting Eisenhower’s motion, the judge concluded the evidence indisputably 

demonstrated the hospital complied with the applicable pricing disclosure obligations 

contained in Health and Safety Code section 1339.511(part of the “Payers’ Bill of 

Rights”) and thus had acted both lawfully and fairly under the UCL. Rodriguez argues 

the judge misinterpreted the evidence and dismissed her lawsuit in error. We disagree and 

affirm.

I

FACTS

A. The Payers’ Bill of Rights

A hospital’s duty to inform patients about anticipated pricing before they receive 

treatment is defined by a series of statutes in the Health and Safety Code called the 

Payers’ Bill of Rights. (§ 1339.50 et seq.) Enacted in 2003, the Payers’ Bill of Rights 

recognizes the importance of pricing transparency and endeavors to strike a balance 

between a consumer’s right to make informed choices and the burden of disclosure on 

1 Unlabeled statutory citations refer to the Health and Safety Code.
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hospitals. In this vein, the Payers’ Bill of Rights does not require hospitals to directly 

disclose anticipated fees and charges to patients in all circumstances. Rather,

pretreatment disclosures are required only when an uninsured patient seeks a 

nonemergency service. (§ 1339.585.)2

In all other circumstances, a hospital meets the Legislature’s standard of pricing 

transparency by giving patients access to a “uniform schedule of . . . its gross billed 

charge for a given service or item, regardless of payer type.” (§ 1339.51, subd. (b)(1).) 

This schedule is called a “charge description master” or “chargemaster,” and should 

contain a “list of all the billable medical goods or services” a hospital provides. (Sarun v. 

Dignity Health (2019) 41 Cal.App.5th 1119, 1125.)

There are two requirements for providing adequate chargemaster access under the 

Payers’ Bill of Rights—availability and notice. A hospital must make “a written or 

electronic copy of its charge[master] available, either by posting an electronic copy . . . 

[on its] Web site, or by making one written or electronic copy available at the hospital 

location.” (§ 1339.51, subd. (a)(1).) A hospital must also “post a clear and conspicuous 

notice in its emergency department, if any, in its admissions office, and in its billing 

office that informs patients that the hospital’s charge[master] is available in the manner 

described in subdivision (a).” (§ 1339.51, subd. (c).) The Legislature imposed these 

disclosure obligations with the goal that “making public the chargemaster . . . will bring 

2 While this appeal was pending, the Legislature amended section 1339.585 to 

remove the condition that the uninsured patient request the fee disclosure. (See former 

§ 1339.585.) Now, a hospital must provide the disclosure whether or not the patient 

requests it.
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more transparency to hospital billing practices.” (Assem. Com. On Appropriations, 3d 

reading analysis of Assem. Bill No. 1637 (2003-2004) as amended May 23, 2003, p. 2.)

B. Rodriguez’s Lawsuit

Eisenhower is a licensed hospital that provides 24-hour inpatient care at its main 

campus in Rancho Mirage and also maintains a number of outpatient facilities in the low

desert area. In 2014, 2015, and 2016, Rodriguez underwent elective hyaluronic acid knee 

injections for the treatment of arthritis at one such outpatient facility, the Desert 

Orthopedic Center (DOC) in La Quinta.

In November 2018, Rodriguez filed the operative complaint in Riverside Superior 

Court, a putative class action lawsuit alleging that she and others similarly situated who 

received treatment at the DOC were charged a “facility fee” which Eisenhower failed to 

adequately disclose under section 1339.51. Specifically, she alleged the hospital failed to 

post a copy of their chargemaster on their web site and failed to post chargemaster 

notices in the required areas (emergency, administrative, and billing departments) as well 

as in the DOC. She alleged these violations of section 1339.51 constituted both unlawful 

and unfair business practices under the UCL.

According to the factual allegations in her complaint, Rodriguez received three 

knee injections in 2014 and another three in 2015. On each of those occasions, DOC staff 

provided her with a “Conditions of Admissions” form advising she would be billed both a 

“provider” fee and a “facility” fee for each visit. At that time, she was covered by an 
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HMO insurance policy through Healthnet under which she paid a minimal copay amount 

for each visit.

In 2016, Rodriguez switched to a PPO insurance policy through Anthem Blue 

Cross. She informed DOC staff about the change, and, after looking into her new policy, 

they contacted her to let her know the injections were still covered. That year, the total of 

Rodriguez’s out-of-pocket medical bills for the three injections was $3,810, and she 

believed the facility fees made up about $3,489 of that total.

Rodriguez alleged she was harmed by Eisenhower’s failure to adequately disclose 

their facility fee, because had she known the amount she was going to be responsible for 

under her new insurance policy, she would have either switched back to her previous

policy or “sought medical care at a medical office not owned by a hospital,” as facility 

fees are unique to hospitals.

C. Eisenhower’s Motion for Summary Judgment

After the parties engaged in discovery, Eisenhower filed a motion for summary 

judgment, arguing Rodriguez’s UCL claim failed because the undisputed evidence 

showed they had complied with section 1339.51’s disclosure requirements. In support of 

their argument, Eisenhower attached a declaration from Hallary Scheideman, their 

chargemaster coordinator and analyst, who is responsible for maintaining and updating

their chargemaster. Scheideman said she prepared Eisenhower’s chargemaster in 2016,
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submitted it to the Office of Statewide Health Planning and Development (OSHPD), and 

“arranged for a copy of it to be available for viewing at the hospital.”3

Eisenhower also submitted a declaration from their director of patient access, 

Michael Sythe, who is responsible for posting the hospital’s chargemaster notices. Sythe 

said in 2016, Eisenhower had notices alerting patients to the availability of their 

chargemaster in their “admitting area,” “emergency department,” and “billing office.” 

Eisenhower also submitted a copy of the notice entitled “Payer’s Bill of Rights 

Chargemaster.” The notice contains the following message in English and Spanish: “The 

Payer’s Bill of Rights requires that hospitals make available to the public a master listing 

of retail prices for its services, known as the chargemaster. [¶] This facility’s 

chargemaster is available for your inspection. To make an appointment to view the 

hospital’s chargemaster or obtain a list of the 25 most common outpatient procedures, 

please contact the Admissions Manager at 760-837-8974.”

Rodriguez opposed Eisenhower’s motion and attached deposition testimony from 

Scheideman and Sythe that she argued undercut the hospital’s claim of section 1339.51 

compliance. During her deposition, Scheideman elaborated on how she had “arrange[d]

for a copy of the Chargemaster to be available for viewing at the hospital.” She explained 

she had placed an electronic copy of the document in the hospital’s shared drive. She said 

the admissions department employees have access to the shared drive and can open the 

3 The Payers’ Bill of Rights also requires hospitals to submit their chargemasters 

to the OSHPD on an annual basis. The OSHPD then makes those documents available to 

the public by posting them on their web site. (§§ 1339.55 & 1339.56, subd. (a).)
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chargemaster with their login credentials (username and password). During his 

deposition, Sythe wasn’t able to elaborate on precisely what would happen if a person 

followed the directions on Eisenhower’s chargemaster notice and called the admissions 

manager to make an appointment to view the chargemaster. This was because it had 

never happened before; no patient had ever asked to see the chargemaster. Sythe’s

testimony also made it clear that Eisenhower posted only two copies of the notice in their 

hospital or main campus—one in the emergency department and one in the 

“admissions/billing area.”

Rodriguez also submitted the deposition testimony of Lilian Hoag, Eisenhower’s 

Director of Operations, who said there is no chargemaster notice posted at the DOC.

In reply, Eisenhower submitted deposition testimony from Sythe explaining they

posted only two notices (as opposed to three) because of the main campus’s layout. Sythe

said Eisenhower’s billing area is located within the admissions area. He also said that any 

patient who visits billing would necessarily walk past the chargemaster notice in the 

admissions area because you can’t reach billing without going through admissions.

After a hearing on Eisenhower’s motion, Riverside Superior Court Judge Sunshine 

S. Sykes concluded Rodriguez’s claim failed under both theories, unlawful business 

practices and unfair business practices. As to unlawful practices, the judge found the 

undisputed evidence showed the hospital had complied with both the availability and 

notice requirements in section 1339.51. As to unfair practices, the judge concluded the 

theory failed because it was based on the same alleged conduct as the unlawful practices 
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theory. Whether Eisenhower should have posted their chargemaster notice in more 

locations than required by section 1339.51, the judge reasoned, was “for the Legislature 

to determine.”

The judge granted Eisenhower’s motion and, on March 19, 2020, entered 

judgment in their favor. Rodriguez timely appealed.

II

ANALYSIS

Rodriguez contends the trial judge incorrectly determined there was no triable 

issue of fact on her UCL claim. She argues she presented triable issues of fact in the 

following three areas: (1) whether Eisenhower’s chargemaster was truly “available”

within the meaning of section 1339.51, subdivision (a); (2) whether the practice of 

posting only one chargemaster notice in a combined admissions/billing area satisfies the

notice requirement in section 1339.51, subdivision (c); and (3) whether Eisenhower’s 

disclosure methods constitute unfair practices, even if not unlawful.

A. General Legal Principles

1. Standard of review

A trial court properly grants summary judgment when there are no triable issues of 

material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. 

Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide 

courts with a mechanism to cut through the parties’ pleadings in order to determine 
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whether, despite their allegations, trial is in fact necessary to resolve their dispute.” 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

A defendant who moves for summary judgment bears the initial burden to show 

the action has no merit—that is, “one or more elements of the cause of action, even if not 

separately pleaded, cannot be established, or that there is a complete defense to the cause 

of action.” (Code Civ. Proc., § 437c, subds. (a), (p)(2).) If they clear this initial hurdle, 

the burden shifts to the plaintiff to demonstrate a triable issue of material fact. (Aguilar, 

supra, 25 Cal.4th at pp. 850-851.) We independently review an order granting summary 

judgment, and if the issue involves a question of fact, we view the evidence in the light 

most favorable to the nonmoving party. (Miller v. Department of Corrections (2005) 36 

Cal.4th 446, 460.)

2. The UCL

The purpose of the UCL is “to safeguard the public against the creation or 

perpetuation of monopolies and to foster and encourage competition, by prohibiting 

unfair, dishonest, deceptive, destructive, fraudulent and discriminatory practices by 

which fair and honest competition is destroyed or prevented.” (Bus. & Prof. Code, 

§ 17001.) To achieve this goal, the law prohibits “any unlawful, unfair or fraudulent 

business act or practice and unfair, deceptive, untrue or misleading advertising.” (Bus. & 

Prof. Code, §§ 17200, 17203, 17204.) An “unlawful” act or practice is “anything that can 

properly be called a business practice and that at the same time is forbidden by law.” 
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(Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 

Cal.4th 163, 180 (Cel-Tech), italics added.)

As for what constitutes an “unfair” act or practice, the Cel-Tech court found the 

definitions in prior cases “too amorphous and provid[ing] too little guidance to courts and 

businesses” and so articulated a more concrete definition of unfair in actions between

competitors (as opposed to cases, like this one, brought by a consumer).

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(Cel-Tech, 

supra, 20 Cal.4th at p. 185.) “When a plaintiff who claims to have suffered injury from a 

direct competitor’s ‘unfair’ act or practice invokes section 17200, the word ‘unfair’ in 

that section means conduct that threatens an incipient violation of an antitrust law, or 

violates the policy or spirit of one of those laws because its effects are comparable to or 

the same as a violation of the law, or otherwise significantly threatens or harms 

competition.” (Id. at p. 187.) In other words, the alleged unfair act must be “tethered to 

some legislatively declared policy.” (Id. at p. 186.)

After Cel-Tech, a split of authority developed among the Courts of Appeal for the 

appropriate unfairness test in a consumer action. This district uses the definition of unfair 

articulated in Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 854, which

essentially imports Cel-Tech’s competitor test. “[W]here a claim of an unfair act or 

practice is predicated on public policy, . . . the public policy which is a predicate to the 

4 The prior cases used concepts like “immoral, unethical, oppressive, unscrupulous 

[and] substantially injurious to consumers” to define unfair. (E.g., People v. Casa Blanca 

Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 530.)
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action must be ‘tethered’ to specific constitutional, statutory or regulatory provisions.”5

(See Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 613; Scripps Clinic 

v. Superior Court (2003) 108 Cal.App.4th 917, 940.)

B. Unlawful Practices

As we’ve seen, section 1339.51 requires a hospital to make a written or electronic 

copy of their chargemaster available online or at their hospital location, with notices 

posted in the emergency department, admissions office, and billing office, that the 

schedule is so available. Where, as here, a hospital chooses to use an electronic copy, the

hospital must either post the document on their web site or make it “available at the 

hospital location.” (§ 1139.51, subd. (a).)

1. Availability

Beginning with the availability requirement, it’s undisputed that Eisenhower kept 

an electronic version of the chargemaster at their main campus or “hospital location.” 

Scheideman said she created the chargemaster and placed it in Eisenhower’s internal 

shared drive, where admissions department employees can access it with their login 

5 Other courts apply a pre-Cel-Tech balancing test that weighs the utility of the 

company’s practice against the gravity of harm to the victim. (E.g., Smith v. State Farm 

Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 718-719; Davis v. Ford Motor 

Credit Co. LLC (2009) 179 Cal.App.4th 581, 595.) Others adopt the test from section 5 of 

the Federal Trade Commission Act (15 U.S.C. § 45(n)): “(1) [t]he consumer injury must 

be substantial; (2) the injury must not be outweighed by any countervailing benefits to 

consumers or competition; and (3) it must be an injury that consumers themselves could 

not reasonably have avoided.” (E.g., Camacho v. Automobile Club of Southern California

(2006) 142 Cal.App.4th 1394, 1403.)
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credentials. Rodriguez argues this evidence does not sufficiently demonstrate the 

document was available to the public because it was password-protected. We disagree.

When a statutory provision does not define the term at issue, we look to “the plain

meaning of a word as understood by the ordinary person, which would typically be a 

dictionary definition.” (Hammond v. Agran (1999) 76 Cal.App.4th 1181, 1189.)

Section 1339.51 does not specify what it means to make a chargemaster “available,” but 

our Supreme Court has described the plain meaning of the word as “‘capable of being 

made use of, at one’s disposal, within one’s reach,’” or “‘obtainable.’” (People v. 

Rodriguez (2016) 1 Cal.5th 676, 686.)

The record contains no evidence suggesting a patient would be incapable of 

viewing Eisenhower’s chargemaster by following the instructions in the notice, that is, by 

contacting the admissions manager and asking to see the document. The fact an employee 

would need to enter their login credentials upon such a request does not change the nature 

of the document. These days, one would be hard-pressed to think of a document or 

application that doesn’t require login credentials. Considering that many people need 

them just to watch TV—and an admissions department employee would likely need them 

to simply log on to a hospital computer—we don’t think login credentials qualify as the 

kind of obstacle that would make something unavailable under a common understanding 

of the word. In this context, the extra step is minimal, likely adding a few seconds to the 

patient’s request.
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Rodriguez’s argument appears to be that an electronic copy of a chargemaster is 

not truly available unless it is stored on a public-facing terminal, but if that were the case 

section 1339.51 wouldn’t have given hospitals any options for making an electronic copy 

available other than posting it to their web site. Because the statute does not specify the 

manner in which a hospital can make an electronic copy available “at the hospital 

location” (§ 1139.51, subd. (a)), and because Rodriguez hasn’t produced any evidence 

suggesting the chargemaster was in fact unobtainable (such as evidence an employee was 

unable to access the document or refused to show it to a patient who asked), we conclude 

she hasn’t demonstrated a factual dispute. In other words, the trial judge’s assessment of 

the evidence was correct. 

2. Notice

Next, Rodriguez argues Eisenhower’s failure to post a chargemaster notice in their 

billing area constitutes a violation of section 1339.51’s notice requirement.

The facts concerning this issue are undisputed. Eisenhower posted one notice in 

their emergency department and one notice in their combined admissions and billing 

area. In addition, Eisenhower’s billing area is located within its admissions department

such that anyone who visits billing must walk through admissions and past the notice 

posted there. The dispute is whether this practice satisfies the hospital’s statutory 

obligation. Rodriguez argues section 1339.51 requires three notices, no exceptions. 

Eisenhower contends the statute requires notices in three areas, which, depending on a 

hospital’s layout, may require less than three notices.
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We think Eisenhower has the better argument. In our view, the purpose of section 

1339.51’s notice requirement is plain: to ensure that patients have a reasonable 

opportunity to see a chargemaster notice on any given visit to the hospital. The statute 

achieves this purpose by requiring notices in the areas of a hospital a patient is most 

likely to visit. Thus, if by virtue of a hospital’s layout any of those three areas share the 

same space, we think the hospital satisfies its statutory obligation by posting a notice in 

the one area a patient will necessarily pass. Because the evidence demonstrates

Eisenhower did that, we conclude the trial judge was right to find they complied with the

notice requirement in section 1339.51, subdivision (c).

C. Unfair Practices

Finally, Rodriguez argues the trial judge erred by granting summary judgment on 

the unfair practices theory of her UCL claim. She asserts two grounds for the error—

(i) that Eisenhower failed to provide adequate notice they were moving on this theory and

(ii) the evidence demonstrates Eisenhower’s disclosure methods are unfair even if lawful.

We disagree on both points.

According to Rodriguez, the trial judge was obligated to deny summary judgment 

because Eisenhower’s motion focused on the lawfulness of their conduct and didn’t 

address fairness. But that is not the test for whether an issue is properly before a judge on 

summary judgment. Rather, a judge “may grant summary judgment on a ground not 

specifically tendered by the moving party, so long as the opposing party has notice of and 

an opportunity to respond to that ground.” (Bacon v. Southern Cal. Edison Co. (1997) 53 
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Cal.App.4th 854, 860.) A nonmoving party will be considered to have notice and an 

opportunity to respond where they address the issue in their opposition and attempt to 

show the existence of a factual dispute. (Ibid.)

That was the case here. Rodriguez raised the unfair practices theory in her 

opposition and argued the evidence she presented to show Eisenhower violated section 

1339.51 “constitutes both ‘unlawful’ and ‘unfair’ business practices under the UCL,” and 

Eisenhower then responded to this argument in their reply. Plus, both parties addressed 

the unlawful practices theory at length during the summary judgment hearing. Under 

these circumstances, it cannot be said the issue wasn’t properly before the judge. In any 

event, Rodriguez hasn’t identified any evidence she could have produced on the issue had 

Eisenhower raised it in their opening brief. Her argument is premised solely on the 

hospital’s failure to address her alternate theory in their moving papers. But the law in 

this area is clear, “[t]o require the trial court to close its eyes to an unmeritorious claim 

simply because the operative ground entitling the moving party to summary judgment 

was not specifically tendered by that party would elevate form over substance and would 

be inconsistent with the purpose of the summary judgment statute.” (Juge v. County of 

Sacramento (1993) 12 Cal.App.4th 59, 69.) We therefore conclude the issue was properly 

before the judge and she was correct to rule on it.

Turning to Rodriguez’s second challenge—whether the substance of that ruling 

was correct—we conclude it was. Rodriguez’s complaint bases both the unlawful and 

unfair theories of liability on the same conduct: Eisenhower’s alleged failure to make its 
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chargemaster available to the public and post notice about that availability. During the 

summary judgment hearing, Rodriguez argued Eisenhower’s failure to post chargemaster 

notices at their outpatient facilities constitutes an unfair business practice, even if 

technically lawful. The trial judge concluded this was an issue for the Legislature, and we 

agree.

Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401 is instructive. 

In that case, the patient alleged a hospital engaged in unfair business practices in 

violation of the UCL by failing to affirmatively disclose, before treatment, the existence 

and amount of a facility fee. Like here, the plaintiff had not alleged the facility fee itself 

was unlawful, only that the hospital’s failure to directly disclose it to him before his 

treatment constituted an unfair business practice. (Nolte, at pp. 1407-1408.) The appellate 

court disagreed, concluding that when a hospital complies with the disclosure obligations 

under section 1339.51, failing to directly disclose a facility fee to the patient, 

pretreatment, doesn’t amount to the kind of “‘sharp practice’” the UCL targets. (Nolte, at 

pp. 1407-1408, quoting Searle v. Wyndham Internat., Inc. (2002) 102 Cal.App.4th 1327, 

1334.)

That conclusion applies with equal force here. Section 1339.51 represents a 

considered judgment from our lawmakers about a hospital’s duty to make pretreatment 

disclosures about anticipated or potential charges. Expanding the scope of that duty to 

include outpatient facilities would upset the balance the Legislature chose to strike

between a consumer’s right to information and a hospital’s burden of providing it, and we 
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decline to substitute our judgment for the Legislature’s. (See Superior Court v. County of 

Mendocino (1996) 13 Cal.4th 45, 53 [“The judiciary, in reviewing statutes enacted by the 

Legislature, may not undertake to evaluate the wisdom of the policies embodied in such 

legislation; absent a constitutional prohibition, the choice among competing policy 

considerations in enacting laws is a legislative function”].) Pricing transparency is 

important and we are not unsympathetic to Rodriguez’s claim that Eisenhower’s 

disclosure methods do not, in practice, do enough to alert the public to the availability of 

their chargemaster. But whether Eisenhower should be required to do more in this area is 

not an issue the UCL was designed to address; it is an issue better directed toward our 

Legislature.

III

DISPOSITION

We affirm the judgment. In the interests of justice, the parties shall bear their own 

costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

Acting P.J.

We concur:

FIELDS

J.

MENETREZ

J.