Filed 7/27/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ATON CENTER, INC.,

Plaintiff and Appellant,

v.

UNITED HEALTHCARE INSURANCE 

COMPANY et al.,

Defendants and Respondents.

 D080122

 (Super. Ct. No. 37-2019-

00054459-CU-BC-NC)

APPEAL from a judgment of the Superior Court of San Diego County, 

Cynthia A. Freeland, Judge. Affirmed.

Law Office of John W. Tower and John W. Tower for Plaintiff and 

Appellant. 

Dorsey & Whitney, Kent J. Schmidt, Michelle S. Grant and Alan J. 

Iverson (pro hac vice) for Defendants and Respondents.

INTRODUCTION

This lawsuit arises from a payment dispute between a healthcare 

provider and an insurance company. The provider contends it was underpaid 

for substance abuse treatment that it rendered to 29 patients. Seeking to 
2

recover the difference directly from the insurance company, the provider filed 

suit in superior court, alleging the insurer entered into binding payment 

agreements during verification of benefits and authorization calls with the 

provider and otherwise misrepresented or concealed the amounts it would 

pay for treatment. The trial court entered summary judgment against the 

provider, from which the provider now appeals. We conclude the court did 

not err in determining one or more elements of the provider’s causes of action 

could not be established. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Factual Background1

United Healthcare Insurance Company, United Behavioral Health 

operating under the brand Optum (“UBH”), and United Healthcare Services, 

Inc. (collectively, “United”) are insurers and third-party claims 

administrators for group health plans sponsored by employers that provide 

health benefits to their covered employees and dependents. United provides 

covered individuals with access to a network of providers who have 

contracted to accept established fees in exchange for being included in 

United’s provider network. United does not have rate agreements with 

providers that are not part of its network. Before admitting or providing 

treatment to an individual covered by a policy issued or administered by 

United, out-of-network providers often contact United by phone to confirm 

the individual has out-of-network benefits. After verifying the individual’s 

1 “Following the usual standard of review from the granting of a 

summary judgment, we view all conflicting facts in favor of [plaintiff], the 

party who opposed the motion for summary judgment.” (Davis v. Nadrich

(2009) 174 Cal.App.4th 1, 3, fn. 1.)
3

consent, United provides the out-of-network provider with the requested 

information, including whether the individual has out-of-network insurance 

benefits, and individual member responsibility amounts, such as copayments, co-insurance, and deductible. This is known as a verification of 

benefits (VOB) call.

AToN Center, Inc. (Aton) is an inpatient substance abuse treatment 

facility. Described by its chief executive officer, James Brady, as a “luxury” 

treatment center, it has offered residential substance abuse and subacute 

detoxification services since 2009. 

At all relevant times, Aton was not part of United’s provider network 

and had no in-network contract with United. Before admitting prospective 

patients covered by healthcare plans issued or underwritten by United, three 

Aton employees who were members of Aton’s “intake team” (James Reed, 

Lauren Mann, and Greg Liggett) placed VOB calls to United to confirm the 

prospective patient’s policy provided out-of-network benefits. Information 

obtained during the VOB calls was memorialized by Aton’s intake team on a 

standardized “ ‘Insurance Quote of Benefits’ ” form (VOB form). The VOB 

form asked for, among other information, a “ ‘rate of reimbursement.’ ” The 

Aton intake team member filling out the form would respond to this question 

by selecting one of the following four options: the usual, customary, and 

reasonable (UCR) rate; the maximum non-network reimbursement (MNRP) 

rate; the Medicare (MCR) rate; or the allowed amount (AA). 

During VOB calls, Aton’s employees asked only whether the rate of 

reimbursement was “based on UCR, MCR, MNRP, or AA.” They did not ask 

how much Aton could expect to be paid. Brady preauthorized Aton’s intake 

team to admit prospective patients whose policies provided out-of-network 

coverage using the UCR reimbursement rate. For patients whose policies 
4

provided out-of-network coverage at a reimbursement rate other than UCR, 

the admission decision was made by Brady. 

This action arises out of United’s alleged underpayment of claims 

pertaining to 29 individuals who sought and received treatment from Aton

between November 2016 and May 2019. During VOB calls, United’s 

representatives advised members of Aton’s intake team that the 

reimbursement rate for 20 of the 29 individuals was based on the MNRP or 

Medicare rates, and that the MNRP reimbursement methodology relied on 

rates published by Medicare. Brady personally approved the admission of 

these 20 individuals. For the remaining nine individuals, United’s 

representatives informed Aton’s intake team during VOB calls that the rate 

of reimbursement was UCR. Aton contends that United should have 

reimbursed 50 percent of Aton’s billed charges for those plans with 

reimbursement rates based upon the MNRP or Medicare rates, and 100 

percent of Aton’s billed charges for those plans whose reimbursement rate 

was based upon the UCR rate. Instead, United allegedly paid Aton a 

substantially lesser amount. 

II.

Procedural Background

A. Pleadings

In a complaint filed in superior court in October 2019, Aton asserted 

causes of action for (1) breach of oral contract, (2) intentional 

misrepresentation, (3) negligent misrepresentation, (4) fraudulent 

concealment, (5) promissory estoppel, (6) quantum meruit, (7) violation of 

Business and Professions Code section 17200 (the Unfair Competition Law 

(UCL)), and (8) breach of implied contract. 
5

United demurred, arguing in part that Aton’s causes of action were 

preempted by section 514 of the Employee Retirement Income Security Act of 

1974 (ERISA).2 United also demurred on the ground certain causes of action

failed to state facts sufficient to constitute a cause of action.

In opposition, Aton argued its causes of action were not preempted by 

section 514 of ERISA because it was “not alleging a breach of the ERISA 

plan, nor [wa]s it requesting plan benefits” or seeking to advance claims 

“based on assignments of plan rights from its patients.” Rather, it was only 

asserting state law causes of action “which are not based on an insurance 

policy or plan, but rather on the course of dealing between [Aton] and 

[United] and the verbal representations and agreements that were made 

during . . . verification of benefit and authorization communications.” 

The trial court sustained United’s demurrer as to Aton’s cause of action 

for quantum meruit based on deficiencies in its supporting allegations. The 

court overruled the demurrer on all other grounds, including ERISA 

preemption, explaining that “[a]t this stage of the case, the Court is unable to 

conclude that the complaint’s causes of action are preempted by ERISA 

Section 514.”

2 Section 514 of ERISA provides, in relevant part, that ERISA 

“supersede[s] any and all State laws insofar as they . . . relate to any 

employee benefit plan.” (29 U.S.C. § 1144(a); see Pilot Life Ins. Co. v. 

Dedeaux (1987) 481 U.S. 41, 48 [holding that § 514(a) preempts “common law 

causes of action . . . based on alleged improper processing of a claim for 

benefits under an employee benefit plan”]; Fast Access Specialty 

Therapeutics, LLC v. UnitedHealth Group, Inc. (S.D.Cal. 2021) 532 F.Supp.3d 

956, 963–972 [concluding out-of-network pharmacy’s state common law 

claims against insurer for inadequate payment of claims were preempted by 

ERISA where they were premised on preapproval letters and terms of the

patient’s insurance plan].) 
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B. United’s Motion for Summary Judgment or Alternatively, Summary 

Adjudication

After conducting discovery, United moved for summary judgment or 

alternatively, summary adjudication of the remaining causes of action in the 

complaint. It submitted the following evidence in support of its motion.

1. United’s Moving Evidence

a. Declaration of Lisa Schmidt

Lisa Schmidt, UBH’s director of customer service, oversaw call agents 

taking inbound VOB calls from providers. 

Schmidt averred that United representatives conducting VOB calls are 

not authorized to enter into commitments or contracts to pay or to guarantee 

coverage. The representatives merely give the provider “preliminary 

information” about a particular member’s insurance benefits; they do not 

determine how claims associated with the member’s treatment will be paid. 

At the verification stage, UBH does not know what services will ultimately be 

provided, what codes will be used to bill for those services, what rates will be 

charged by the provider, or whether the services will be provided and billed 

in accordance with billing guidelines, among other conditions in the member’s 

benefit plan. For an out-of-network provider, the amount that will be paid on 

a particular claim is only determined after receiving the claim, reviewing it, 

and applying the plan’s terms and limitations to the provider’s charge. To 

the extent the terms of the member’s out-of-network benefit plan result in 

United paying an out-of-network provider less than the amount billed, the 

provider may bill the member for any difference between the amount 

reimbursed and the billed charge. 

b. Aton’s VOB Forms

United also submitted Aton’s VOB forms memorializing VOB calls 

relating to the terms of insurance plans covering the subject 29 patients. 
7

These forms showed that in the VOB calls, United representatives had 

informed Aton the rate of reimbursement provided by plans covering 20 

patients was based on MNRP or Medicare rates; for plans covering the 

remaining nine patients, United representatives had informed Aton’s intake 

team the rate of reimbursement was “based on UCR.” 

c. Deposition Testimony of Aton’s Intake Team

Aton employees Reed, Mann, and Liggett were responsible for placing 

VOB calls to insurers. 

Reed, Aton’s intake director, created the VOB form in addition to 

conducting VOB calls. The VOB process “is to call and using that [VOB] form 

to get the information that we need.” During VOB calls, Reed and his team 

“try to get information about rates of reimbursement,” but their primary 

concern “is whether or not the coverage is there and the patient is eligible for 

services.” During the VOB process, the insurer does not “agree . . . to pay.” 

The VOB calls were not “a promise to pay.” Reed testified that he views the 

VOB form as information, not as a contract. Aton does not know at the VOB 

stage how much an insurer will pay for a particular claim. 

Reed further testified that the verification of benefits process happens 

prior to admission. Upon admission, Aton requires patients to sign an 

“Insurance Agreement” form stating: “ ‘[I]t is essential to understand that no 

guarantees are made in advance or at any time that insurance will cover 

treatment and at what rate.’ ” When patients complete this form, Aton does 

not know how much the insurer will pay. Aton could not guarantee “how [the 

patient’s] insurance company is going to reimburse,” because as Reed 

explained, “We can’t give those numbers, because we don’t have them.” At 

the time of admission, Aton also requires patients to sign a “Financial 

Agreement” form that says the patient is “ ‘wholly responsible’ ” for Aton’s 
8

daily rate, including any portion not reimbursed by the insurer. Neither

Reed nor Liggett could remember a single promise United made during a 

VOB call. Mann testified that Aton does not inform United during VOB calls 

that Aton expects to collect a percentage of its billed charges. She did not 

know what monetary amounts were associated with the reimbursement rates 

listed on the VOB form or whether they were the “ ‘same or different’ ” from 

billed charges. 

d. Deposition Testimony of Aton’s CEO

Brady testified on behalf of Aton regarding the facts supporting each of 

Aton’s claims, including breach of contract. He had not listened to nor read 

transcriptions of VOB calls and was “not sure of what verbiage goes back and 

forth.” He testified, “I get the meat and potatoes [from] the VOB forms . . . . 

That’s all I have to look at. We don’t record [United’s] calls.”

Brady described the oral contracts between Aton and United as follows: 

“Us calling and asking for the benefit. The benefit being quoted. Us under 

that benefit quoted having an acceptance by taking the patient into the 

facility. [¶] Us then performing under the conditions noted in the 

verification; be it . . . the prior authorization and having the proper licensure, 

accreditation, and then providing the services that meet or exceed the level of 

care . . . that were being billed to United or Optum . . . . [¶] And then the 

final piece of the contract is I guess reimbursement or compensation, and 

that’s the reason we’re here is we believe that wasn’t fully met on [United’s] 

side.” “So again, there’s been an offer, it seems, the VOB. An acceptance; the 

admission of the patient. Performance; which we’ve treated the patient. And 

then compensation is somewhat lacking.” 

Brady specifically considered “the verification of benefits quotation” to 

be an offer. It was his belief that “when Aton affirmatively calls United and 
9

asks questions and United responds to those questions, . . . that’s an offer[.]” 

Brady did not know whether United representatives conducting VOB calls 

have the authority to enter into contracts. 

Aton did not ask during VOB calls whether reimbursement rates 

corresponded with billed charges. Brady testified that when Aton had asked 

that question in the past, “the answer has been, ‘We don’t know. You’ll know 

when the claim processes.’ ” When Aton is quoted the UCR or MNRP 

reimbursement rates, Aton “believes” it knows what those rates should be. 

Brady testified that UCR means the “usual and customary rate.” He

understands UCR to correspond to 100 percent of Aton’s billed charges. He 

explained: “[W]hat I bill is reasonable because I bill it, I bill it to everybody 

the same way, and I know what my geographic area is and therefore that is 

UCR.” He believed United understands UCR the same way based on how 

Aton was typically paid on UCR policies. 

On the topic of the MNRP reimbursement rate, Brady testified his 

understanding that MNRP means 50 percent of billed charges is derived in 

part from a United plan document “[p]lus hundreds of payments at 50 

[percent] of [the] billed charge.” When asked if he knows whether United 

understands MNRP to be 50 percent of billed charges “in all cases,” Brady 

stated, “I’m not United. I can’t figure out what United thinks.” 

Brady was unaware whether United representatives “intentionally 

concealed anything[.]” He testified, “I’m unaware of what their intention 

was. I do know that we have been misquoted benefits if we’re paid contrary 

to what our historical reimbursement was, and [the] number of plans I’ve 

looked at[.]”
10

e. Evidence Relating to the Preauthorization Process

Dr. Kevin Murphy is tasked by Aton with demonstrating to insurers 

that a patient meets the criteria for “this level of care.” The purpose of the 

authorization process is to demonstrate medical necessity. Murphy never 

discusses rates of reimbursement during authorization. During the 

authorization process, United makes no representations to Murphy regarding 

payment.

Between December 2016 and May 2019, United sent Aton over 50 

letters authorizing “SA Detox Residential Adult” or “SA Residential Adult” 

services. Each authorization letter contained the following language: 

“ ‘Payment for services described in this letter is subject to the member’s 

eligibility at the time services are provided, including employment or 

Healthcare Exchange premium payment status, benefit plan limitations, and 

availability of remaining coverage. An eligibility disclaimer was given at the 

time of this benefit request. Please discuss this with the member.’ ” (Italics 

added.) Brady acknowledged Aton had received these letters and that United 

had repeatedly advised Aton that payment of claims would be subject to plan 

limitations. 

2. United’s Moving Arguments

Based on the foregoing evidence, United argued that Aton could not 

establish one or more elements of each of the complaint’s remaining causes of 

action. 

More specifically, United argued summary adjudication of Aton’s 

breach of oral and implied contract causes of action was appropriate because 

Aton could not demonstrate the existence of mutual assent or consideration. 

United had not agreed during VOB calls to reimburse 100 percent or 50 

percent of the amounts Aton billed for treatment. United’s payment 
11

obligation was dependent on the terms of the operative benefit plans and was 

determined only after claims were submitted. 

No evidence of actual, affirmative or knowing misrepresentations 

existed to support Aton’s causes of action for intentional misrepresentation 

and negligent misrepresentation. Aton could not show United 

representatives conducting VOB calls intentionally concealed any facts, nor 

could it prove United had a duty to disclose the amount it would pay, 

defeating its fraudulent concealment cause of action. Nor could Aton

establish the unfair, unlawful, or fraudulent business practices needed to 

support its cause of action for violation of the UCL.

C. Aton’s Opposition to United’s Motion

1. Aton’s Evidence Filed in Support of Its Opposition

In opposition to United’s motion, Aton submitted additional testimony 

from Brady, Reed, Mann, Liggett, and Schmidt, as well as testimony of three 

other individuals (Nikki Weidlund, an Aton employee who filled out one of 

the VOB forms submitted in support of United’s motion; and Chi Mao and 

Denise Strait, both representatives of United), and an expert witness (Luisa 

Davis). 

Aton’s evidence did not include transcripts, recordings, or other like 

evidence establishing what United’s representatives said during the VOB 

calls at issue. Instead, its evidence generally concerned Aton’s understanding 

that UCR and MNRP reimbursement rates equated to 100 percent and 50 

percent, respectively, of the amount Aton billed for its services. Brady was 

the chief source of this understanding. 

In the excerpts of Brady’s deposition testimony submitted by Aton, 

Brady testified that during VOB calls, “they [i.e., United representatives] do 

not give us anything other than it’s an MNRP, and they may throw in that it 
12

is tied to a percentage of Medicare, which we know doesn’t exist. So that’s 

nebulous.” His understanding “is [that] there is not a Medicare rate[.]” 

Referring to language in United’s MNRP plans that apparently gave a pointby-point explanation of the manner in which MNRP reimbursement rates 

were calculated,3 Brady testified: “we believe that the MNRP is pointing us 

to they are going to reduce our billing by 50[ percent] typically, and that’s 

what we see.” Aton also submitted the same deposition excerpts relied on by 

United in which Brady testified to his belief that the UCR reimbursement 

rate corresponded to 100 percent of Aton’s billed charges. 

Aton also submitted a declaration from Brady in which he averred that 

at the time of the “claims at issue in this lawsuit,” his understanding was 

that “United’s MNRP pricing method was based on Medicare rates for the 

service provided.” Because there was no Medicare rate for residential 

substance abuse treatment, Brady “understood based on payment history and 

[his own] understanding of the [United] plans that United was to pay 

50[ percent] of billed charges.” 

Aton’s excerpts of the Reed, Mann, and Liggett depositions largely 

overlapped with the excerpts submitted by United and did not change the 

substance of the testimony relied upon by United. 

In Aton’s excerpts of Schmidt’s deposition testimony, Schmidt agreed 

United representatives gave providers accurate information about members’ 

3 It appears the plan language discussed by Brady gave United the 

option of using a so-called “GAP methodology” to calculate the MNRP 

reimbursement rate. Brady testified “the GAP methodology doesn’t apply, so 

the ultimate end result is 50[ percent].” United’s use of this GAP 

methodology when calculating reimbursement of certain claims covered by 

MNRP plans appears to be one source of Aton’s claim that it was underpaid. 
13

insurance benefits. The representatives would only provide “the method, the 

reimbursement program,” which would be either “UCR or MNRP.” To her 

knowledge, United’s representatives did not ever inform providers “that one 

of the methods of payment could be 50 percent of a bill [sic] charge[.]” 

Weidlund, the Aton employee who completed one VOB form, testified 

she understood when she filled out the form that MNRP meant a rate of 

reimbursement of 50 percent of the billed charge. However, the source of her 

understanding of the meaning of MNRP was not established.

The specific duties or position of Mao, the apparent United employee, 

were not established. In the deposition excerpt submitted by Aton, Mao 

responded to questions about United’s “plan language.” Mao agreed United 

was required to pay claims in accordance with the terms of its plans. Strait, 

another apparent United employee whose duties and role at United were not 

established, answered questions about United’s pricing methodologies, 

although it was not clear she had information about the specific claims at 

issue in the litigation.

Davis, an expert on medical and substance use disorder claim billing 

and bill review, opined: “[F]or the VOB’s in which [Aton] was informed the 

allowed amount was to be based on the UCR, [Aton] should be paid it’s [sic] 

billed amount. In the VOB’s in which [Aton] was informed that the MNRP 

CMS/Medicare rate pricing methodology would be used to determine allowed 

amounts, the allowed amount should have been 50[ percent] of the billed 

amount.” 
14

Finally, Aton submitted one page of a 12-page explanation of benefits it 

received from United. The page reflected payment for several days of 

treatment of one of the 29 patients whose claims were at issue.4 

2. Aton’s Opposition Arguments

In opposition, Aton argued its VOB and authorization processes created 

binding oral and/or implied contracts with United because Aton alleged that 

it was told it “would be paid” based on the UCR or MNRP reimbursement 

methods. Aton argued that United, “[b]y representing that it would pay the 

UCR . . . [,] provided a recognized method by which the amount it would pay 

would be objectively determined.” Aton also emphasized that Brady 

“understood that [Aton] and [U]nited were entering into oral or implied 

agreements.” 

As for its promissory estoppel cause of action, Aton asserted that 

“[s]pecific representations/promises regarding payment rates” are “an 

appropriate factual predicate for promissory estoppel,” but it cited no 

evidence of the purported promises. 

Aton argued it possessed evidentiary support for its intentional 

misrepresentation, negligent misrepresentation, and fraudulent concealment 

causes of action based on the VOB forms United filed in support of summary 

judgment, which Aton claimed showed United “misrepresented its payment 

methodologies to [Aton].” Aton maintained its misrepresentation and 

4 We do not summarize evidence excluded by the trial court in response 

to United’s objections. Aton does not challenge the court’s rulings on United’s 

evidentiary objections on appeal, and as a result, the rulings excluding the 

evidence from consideration are binding on appeal. (See, e.g., RMR 

Equipment Rental, Inc. v. Residential Fund 1347, LLC (2021) 65 Cal.App.5th 

383, 392 (RMR Equipment Rental) [unchallenged trial court ruling is binding 

on appeal].) 
15

fraudulent concealment causes of action were also adequately supported by 

evidence that United’s MNRP payment methodology operated in a way that 

was “contrary to its plans.” Finally, Aton argued its cause of action for 

violation of the UCL had evidentiary support because it “alleges two 

intentional fraud claims” which were supported by “allegations [that] clearly 

state a claim for deceptive business practices.” 

D. United’s Reply

In reply, United argued in part that Aton, having previously disavowed 

reliance on the terms of the patients’ underlying ERISA plans when it 

opposed United’s demurrer, was judicially estopped from relying on plan 

terms to oppose summary judgment. 

United also argued Aton had failed to carry its burden of presenting

evidence that United representatives made payment promises or 

commitments during VOB calls, much less promises or commitments to pay 

100 percent or 50 percent of the amount Aton ultimately billed for those 

claims, and that Aton also failed to introduce evidence showing United 

fraudulently misrepresented or concealed facts during the calls. 

E. Trial Court’s Ruling

The trial court granted United’s summary judgment motion in a 

detailed minute order issued in November 2021. 

As an initial matter, the court ruled that Aton was foreclosed from 

relying on the terms of United’s plans to support its claims. The court 

explained that Aton had contended, and the court had accepted in partially 

overruling United’s demurrer on ERISA preemption grounds, that Aton was 

not “(1) attempting to assert an ERISA claim; (2) alleging a breach of an 

ERISA plan; (3) requesting plan benefits; or (4) alleging claims based upon 

what the policies and/or plans may set as the payment rate.” As a result, 
16

Aton was judicially estopped from taking a contrary position on summary 

judgment.

The trial court then analyzed the parties’ evidence and arguments 

pertaining to each of Aton’s causes of action and concluded United had 

succeeded in showing, as to each cause of action, that Aton could not 

establish one or more necessary elements. The court granted United’s motion 

in its entirety. Judgment in favor of United and against Aton was entered in 

December 2021. Aton was served with notice of the judgment’s entry in 

January 2022. 

DISCUSSION

In challenging entry of summary judgment, Aton largely focuses on 

establishing the trial court committed legal errors. To a lesser extent, it 

attempts to demonstrate its evidentiary showing was sufficient to create a 

factual dispute precluding entry of summary judgment. As we discuss, Aton

fails to establish that summary judgment was erroneously granted.

I.

Standard of Review

“Summary judgment is appropriate only ‘where no triable issue of 

material fact exists and the moving party is entitled to judgment as a matter 

of law.’ ” (Regents of University of California v. Superior Court (2018) 4 

Cal.5th 607, 618.) A triable issue of material fact exists only if “the evidence 

would allow a reasonable trier of fact to find the underlying fact in favor of 

the party opposing the motion in accordance with the applicable standard of 

proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 

(Aguilar).) 

A defendant moving for summary judgment has the initial burden of 

presenting evidence that a cause of action lacks merit because the plaintiff 
17

cannot establish an element of the cause of action or there is a complete 

defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at 

p. 853.) If the defendant does so, the burden then shifts to the plaintiff to 

produce admissible evidence demonstrating a triable issue of material fact as 

to the claim or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at 

p. 850.) Theories that are not supported by evidence will not raise a triable 

issue. (Code Civ. Proc., § 437c, subd. (p)(2) [“[t]he plaintiff or crosscomplainant shall not rely upon the allegations or denials of its pleadings to 

show that a triable issue of material fact exists”]; Sangster v. Paetkau (1998) 

68 Cal.App.4th 151, 163, 166 [“bare assertion” that the moving parties 

“ ‘fabricated’ ” evidence insufficient to avoid summary judgment].)

Whether the trial court erred by granting United’s motion for summary 

judgment is a question of law we review de novo. (See Samara v. Matar

(2018) 5 Cal.5th 322, 338.) “ ‘[W]e examine the facts presented to the trial 

court and determine their effect as a matter of law.’ ” (Regents of University 

of California v. Superior Court, supra, 4 Cal.5th at p. 618.) “We review the 

entire record, ‘considering all the evidence set forth in the moving and 

opposition papers except that to which objections have been made and 

sustained.’ [Citation.] Evidence presented in opposition to summary 

judgment is liberally construed, with any doubts about the evidence resolved 

in favor of the party opposing the motion.” (Ibid.)

“ ‘[A]lthough we use a de novo standard of review here, we do not 

transform into a trial court.’ ” (Dinslage v. City and County of San Francisco 

(2016) 5 Cal.App.5th 368, 379 (Dinslage).) We approach a summary 

judgment appeal, as with any appeal, with the presumption the appealed 

judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) 

Therefore, “ ‘ “[o]n review of a summary judgment, the appellant has the 
18

burden of showing error, even if he did not bear the burden in the trial 

court.” ’ ” (Dinslage, at p. 379.)

II.

Oral and Implied Contract Causes of Action

A. Relevant Legal Principles

The elements of a breach of oral contract cause are: “(1) existence of 

the contract; (2) plaintiff’s performance or excuse for nonperformance; 

(3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” 

(CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239 [elements 

of breach of contract]; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th

437, 453 [elements of breach of oral contract and breach of written contract 

claims are the same].) “A cause of action for breach of implied contract has 

the same elements as does a cause of action for breach of contract, except that

the promise is not expressed in words but is implied from the promisor’s 

conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th

172, 182; Civ. Code, § 1621 [“An implied contract is one, the existence and 

terms of which are manifested by conduct.”].) “ ‘[B]oth types of contract are 

identical in that they require a meeting of minds or an agreement [citation]. 

Thus, it is evident that both the express contract and contract implied in fact 

are founded upon an ascertained agreement or, in other words, are 

consensual in nature, the substantial difference being in the mode of proof by 

which they are established [citation].’ ” (Pacific Bay Recovery, Inc. v. 

California Physicians’ Services, Inc. (2017) 12 Cal.App.5th 200, 215 (Pacific 

Bay Recovery).) 
19

B. The Trial Court’s Ruling

The trial court granted summary adjudication of Aton’s breach of oral

contract cause of action on the ground United succeeded in showing Aton

could not establish the existence of an oral contract. 

The essential elements of a contract are: “1. Parties capable of 

contracting; [¶] 2. Their consent; [¶] 3. A lawful object; and, [¶] 4. A 

sufficient cause or consideration.” (Civ. Code, § 1550.) “ ‘[T]he vital elements 

of a cause of action based on contract are mutual assent (usually 

accomplished through the medium of an offer and acceptance) and 

consideration.’ ” (Pacific Bay Recovery, supra, 12 Cal.App.5th at p. 215.) The

court found the evidence of both these elements to be lacking, although its 

decision focused primarily on the absence of evidence of mutual consent.

“Contract formation requires mutual consent, which cannot exist 

unless the parties ‘agree upon the same thing in the same sense.’ ” 

(Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208 (Bustamante), 

quoting Civ. Code, § 1580.) “ ‘Mutual assent is determined under an objective 

standard applied to the outward manifestations or expressions of the parties, 

i.e., the reasonable meaning of their words and acts, and not their 

unexpressed intentions or understandings.’ ” (Bustamante, at p. 208.) “The 

question is what the parties’ objective manifestations of agreement or 

objective expressions of intent would lead a reasonable person to believe.” 

(Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) 

In determining that Aton could not show the mutual consent required 

to form an oral contract, the trial court compared the asserted basis of Aton’s 

oral contract cause of action (that the VOB calls constituted offers, and Aton’s 

admission of patients constituted acceptances) with the evidence produced by 

the parties. The court elaborated in detail on the facts and evidence that in 
20

its view tended to show there was “no mutual assent or meeting of the minds 

between [Aton] and [United] during the VOB process as to the subject 

claims.” These facts included the following:

United representatives conducting VOB calls only verify benefits and

are not authorized to enter into commitments or contracts to pay or 

guarantee coverage. They did not know at the verification stage what 

services would ultimately be provided or the rates the provider would charge 

for those services. During VOB calls, insurers do not agree to pay at a 

specific reimbursement rate or promise to pay a certain amount, nor does 

Aton learn how much it will be paid for a particular claim. Liggett could not 

recall a single promise made by United or an occasion when he believed a 

contract was formed during a VOB call. 

Brady admitted he did not know whether United representatives were 

authorized to enter into contracts, nor did he know whether Aton informed 

United of its belief that the VOB calls were contracts. He also did not know 

whether United’s representatives possessed information about the correlation 

between UCR, MNRP, and the percentage of billed charges. While Brady 

believed UCR meant 100 percent of Aton’s billed charges, he was unable to 

state based on anything other than United’s payment history whether United 

held the same view. When asked whether he believed United understood the 

MNRP rate to be 50 percent of billed charges, Brady responded that he did 

not know what United “thinks.” He also admitted that Aton does not ask 

during VOB calls what it will be paid; rather, when Aton is quoted UCR or 

MNRP reimbursement rates, it “ ‘believes’ ” it knows what those rates 

“should be.”

The trial court concluded: “At best, [Aton] has established that it

believed oral contracts were formed during the VOB process. However, there 
21

is no evidence . . . [Aton] ever communicated that belief to [United], or [that 

United] held the same view.” 

Turning to Aton’s implied contract cause of action, the trial court stated 

it shared a common factual predicate with Aton’s oral contract cause of 

action. The court ruled that for the same reasons Aton failed to demonstrate 

mutual assent to enter an oral contract, it also failed to demonstrate mutual 

assent to enter an implied-in-fact contract. To the extent Aton’s implied 

contract claim was based on previous payments, historical knowledge, or the 

parties’ history, Aton failed to establish that United “agreed to pay the 

subject claims the same as it had paid previous claims.”

C. Analysis of Aton’s Contentions on Appeal

1. Aton’s Reliance on Unpublished Federal Cases Upholding 

Contract Claims Fails to Persuade Us the Trial Court Erred

Aton contends the trial court erred as a matter of law by concluding its 

evidence fell short of establishing the mutual consent necessary to form oral 

or implied agreements between itself and United. Its challenge is principally 

derived from a line of cases in which courts have considered the viability of 

breach of contract claims predicated on contracts allegedly formed during 

VOB and/or authorization calls between a provider and insurer. 

In several of the cases cited by Aton, contract claims based on such 

communications were rejected on the ground that “ ‘within the medical 

insurance industry, an insurer’s verification is not the same as a promise to 

pay.’ ” (TML Recovery, LLC v. Humana Inc. (C.D. Cal. Mar. 4, 2019) 

No. SACV 18-00462 AG (JDEx), 2019 WL 3208807, *4 [dismissing oral and 

implied contract claims pursuant to Federal Rule of Civil Procedure 12(b)(6)

(Rule 12(b)(6)) for failure to state a claim; “Plaintiffs allege that they verified 

the patients’ benefits and obtained authorization as necessary. . . . But 

‘within the medical insurance industry, an insurer’s verification is not the 
22

same as a promise to pay.’ ”]; TML Recovery LLC v. Cigna Corporation (C.D. 

Cal. Mar. 29, 2021) No. SA CV 20-00269-DOC-(JDEx), 2021 WL 5238575, *5 

[same]; Aton Center, Inc. v. Blue Cross and Blue Shield of South Carolina

(S.D. Cal. Aug. 17, 2020) No. 3:20-cv-00496-WQH-BGS, 2020 WL 4747752, *5 

[dismissing oral contract claim based on VOB calls pursuant to Rule 12(b)(6) 

for failure to state a claim].) As one of these courts explained, “VOB and 

authorization phone calls alone are generally insufficient to form the basis for 

an oral or implied contract because they lack a manifestation of intent to 

enter into a contract.” (Aton Center, Inc. v. Blue Cross and Blue Shield of 

South Carolina, supra, 2020 WL 4747752 at p. *3.) 

In Pacific Bay Recovery, supra, 12 Cal.App.5th 200, this court reached a 

similar conclusion and affirmed a trial court’s ruling sustaining a demurrer 

to a breach of implied contract cause of action. There, the provider alleged it 

contacted the insurer to obtain prior authorization, was advised the 

prospective patient was insured for the treatment to be rendered and that the 

provider “would be paid” for the treatment, and “ ‘was led to believe that it 

would be paid a portion or percentage of its total billed charges, which 

charges correlated with usual, reasonable and customary charges.’ ” (Id. at 

p. 216.) We held these allegations “lack[ed] the specific facts required for us 

to determine there was any meeting of the minds between the parties,” 

including because “it does not appear the parties reached any sort of 

agreement as to the rate [the insurer] would pay [the provider].” (Ibid.) We 

further held the provider failed to state a cause of action for estoppel because 

it “has not alleged a promise clear and unambiguous in its terms.” (Id. at 

p. 215, fn. 6.) 

Aton does not dispute the consensus reached by the above district 

courts, namely, that “ ‘within the medical insurance industry, an insurer’s 
23

verification is not the same as a promise to pay.’ ” (TML Recovery, LLC v. 

Humana Inc., supra, 2019 WL 3208807, at p. *4.) It argues the cases 

rejecting contract claims premised on verification and/or authorization calls 

are distinguishable because in each of them, “the insurers were only asked 

and the providers were only informed that the subject patient was ‘insured, 

covered, and eligible for coverage’ under [the insurers’] plan for the services 

[the provider] provided.” It contends the viability of its contract claims 

should instead be decided in accordance with the following cases where courts 

have upheld such claims.

In Summit Estate, Inc. v. Cigna Healthcare of California, Inc. (N.D.

Cal. Oct. 10, 2017) No. 17-CV-03871-LHK, 2017 WL 4517111, the district

court denied the defendant insurers’ motion pursuant to Rule 12(b)(6) to

dismiss the plaintiff provider’s breach of oral contract claim. The court

explained: “Plaintiff’s complaint does not allege that Defendants merely 

verified coverage to Plaintiff. Instead, Plaintiff’s complaint alleges that, ‘in 

all cases,’ Defendants told Plaintiff that ‘Defendants would pay for treatment 

at the usual, reasonable and customary rate.’ [Citation.] Thus, Plaintiff has 

alleged sufficient facts to plausibly suggest that Defendants exhibited 

outward conduct indicating Defendants’ intent to contract with Plaintiff.” 

(Summit Estate, Inc., at p. *3, italics added.) 

In Aton Center, Inc. v. Blue Cross and Blue Shield of Illinois (S.D. Cal. 

Feb. 16, 2021) No. 3:20-cv-00500-WQH-BGS, 2021 WL 615051, the court 

denied a Rule 12(b)(6) motion to dismiss an oral contract claim where the 

provider alleged it “ ‘was advised in . . . VOB calls . . . [the insurer] would pay

for inpatient treatment, based on the usual, customary and reasonable rate 

(UCR) and/or prior payment history’ ”; that for certain patients, the insurer 

told the provider it “ ‘would pay 60[ percent] of [the provider’s] billed 
24

charges’ ” and for others it “ ‘would pay 80[ percent] of [the provider’s] billed 

charges.’ ” (Id. at p. *5, italics added.) The complaint also affirmatively 

alleged the provider and insurer “ ‘entered into agreements’ ” whereby the 

provider would provide treatment to the insured patients. (Ibid.) The court 

explained “[t]he factual allegations of oral contract go beyond VOB and 

authorization calls describing the type of treatment and specific billing rates” 

and there were “sufficient facts to infer mutual consent in which ‘the parties 

all agree[d] upon the same thing in the same sense.’ ” (Ibid.) 

And in Aton Center, Inc. v. Carefirst of Maryland, Inc. (D. Md. Dec. 14, 

2021) No. DKC 20-3170, 2021 WL 5909101, the district court granted the 

provider leave to amend its complaint to assert a breach of express contract 

claim where the proposed pleading alleged the defendant insurers stated 

during VOB calls they “ ‘would pay for inpatient treatment’ ” at specified 

percentages of the provider’s billed charges. (Id. at p. *3, italics added.) The 

court concluded the complaint alleged “sufficiently definite promises” 

including because it “specif[ied] the precise percent of the billed amount that 

[the insurer] allegedly promised to pay during the VOB calls[.]” (Ibid.)

Aton contends its oral and implied contract claims are like the contract 

claims in these three cases because “[t]he evidence before the trial court here

went well beyond simply verifying coverage” and showed “United informed 

[Aton] it would pay for either of its treatments (detox care or residential 

treatment) under the UCR or MNRP pay rates.” (Italics added.) Aton

argues, “where (as here) facts go beyond mere verification of coverage and 

into promises to pay for treatment . . . at a specific rate,” courts allow 

contract claims to proceed. United responds that the cases Aton relies upon 

are distinguishable because they were decided in procedural contexts other 

than summary judgment. 
25

In our view, the problem with Aton’s reliance on these cases is factual 

rather than procedural.5 Although the cases involved pleadings challenges 

rather than summary judgment, they nevertheless addressed the sufficiency 

of contract claims based on verification calls, and each determined that 

particular factual allegations supported an inference of mutual assent. They 

are therefore at least potentially persuasive authority for the proposition that 

the same conclusion should be reached in another case involving similar 

facts. 

Instead, our difficulty with Aton’s challenge to the trial court’s ruling is 

that it is built on two unfounded factual assertions: that its evidence showed 

United’s representatives conducting VOB calls used words constituting an 

offer or promise (e.g., that United “would pay” Aton); and that United and 

Aton mutually understood the “UCR or MNRP pay rates” corresponded with 

100 percent and 50 percent, respectively, of Aton’s billed charges. As we shall 

discuss, Aton produced no evidence tending to show United’s representatives 

made promises or offers during VOB calls. It also failed to introduce evidence 

that both sides possessed the same understanding of the UCR and MNRP 

reimbursement rates. For these reasons, Aton’s authorities are inapposite. 

As Aton implicitly concedes by repeatedly asserting that the evidence 

before the trial court showed United representatives told Aton that United 

“would pay” Aton for certain types of treatment at specific rates, the use of 

such words during VOB calls is material to Aton’s claim that an oral contract 

was formed during the calls. In the case of an express agreement, mutual 

5 Unpublished federal court cases like those on which Aton relies are 

citable only for their persuasive value. (Gray v. Quicken Loans, Inc. (2021) 61 

Cal.App.5th 524, 528, fn. 2.) 
26

assent is manifested in words, usually “through the medium of an offer . . .

communicated to the offeree and an acceptance . . . communicated to the 

offeror.” (1 Witkin, Summary of Cal. Law (11th ed. 2017) Contracts, § 117, 

pp. 158–159 [citations omitted].) “ ‘ “An offer is the manifestation of

willingness to enter into a bargain, so made as to justify another person in

understanding that his assent to that bargain is invited and will conclude

it.” ’ ” (City of Moorpark v. Moorpark Unified Sch. Dist. (1991) 54 Cal.3d 921,

930.) Determining whether a particular communication reasonably

constitutes an express offer requires an examination of the words used by the

purported offeror as well as the circumstances surrounding the offer. (See

e.g., ibid.; 1 Witkin, Summary of Cal. Law, supra, Contracts, §§ 130–132,

pp. 170–173.) 

As Aton acknowledges and as courts like those in the cases referenced

above have held, when an insurer merely provides information about a

prospective patient’s healthcare plan in response to a provider’s inquiries,

this does not, on its own, amount to a promise to pay. (See, e.g., TML 

Recovery, LLC v. Humana Inc., supra, 2019 WL 3208807, at p. *4 [“ ‘within 

the medical insurance industry, an insurer’s verification is not the same as a 

promise to pay’ ”].) But when (as in the cases relied on by Aton) the insurer 

goes further and tells the provider it will pay the provider for a particular 

patient’s treatment, the insurer may be found to have extended an offer or 

promise because such words reasonably signal an intent to transact. (See 

e.g., Aton Center, Inc. v. Blue Cross and Blue Shield of Illinois, supra, 2021 

WL 615051, p. *5 [intent to contract could be inferred from allegations 

insurer advised provider during VOB calls it “would pay for inpatient 

treatment,” “ ‘would pay 60[ percent] of [the provider’s] billed charges’ ” and “ 

‘would pay 80[ percent] of [the provider’s] billed charges’ ” (italics added)]; 
27

and see generally Richards v. Flower (1961) 193 Cal.App.2d 233, 235–236

(Richards) [rejecting argument that a defendant made a binding offer to sell

property “merely because he chose to answer certain inquiries” by the

plaintiffs]; Leo F. Piazza Paving Co. v. Bebek & Brkich (1956) 141 Cal.App.2d

226, 228–232 [subcontractors prepared detailed price quotations in response

to general contractor’s request, on which the general contractor relied; held,

not a firm offer].) We do not suggest that a contract is created whenever an 

insurer’s representative uses the words “will pay” during a VOB call. 

Instead, we merely hold that to the extent Aton relies on decisions allowing 

contract claims to proceed on the basis of such facts, it fails to establish those 

facts exist in this case.

The difficulty with Aton’s challenge is that contrary to its contentions, 

no evidence was introduced showing United representatives conducting VOB 

calls used words objectively manifesting contractual offers or promises of 

payment. United’s moving evidence established that its representatives who

conducted VOB calls were not authorized to enter into commitments or

contracts or guarantee payment, which supported a reasonable inference that

no express promises or offers to pay were made during the VOB calls at issue. 

United further established through Reed’s testimony that during the VOB

process, insurers do not agree to pay at a specific reimbursement rate. Reed

also testified he regarded VOB forms as information rather than as contracts. 

In the excerpts of Brady’s deposition testimony submitted by United, Brady

described the VOB calls as “[Aton] calling and asking for the benefit. The

benefit being quoted.” Brady’s description established only that United

provided plan information in response to Aton’s inquiries, the very sort of

communications that have been held to fall short of forming the basis of an

oral contract. United’s moving evidence thus supported the conclusion the
28

VOB calls were devoid of communications objectively manifesting an intent to

contract.

In opposition, Aton introduced no evidence at all of the actual words

used by United representatives during VOB calls, much less evidence tending

to show United’s representatives conducting VOB calls used words

reasonably constituting an offer or promise to pay. Instead, it relied on the

complaint’s allegations “that [Aton] was told it would be paid[.]” A party

cannot avoid summary judgment by relying on “the allegations or denials of

its pleadings.” (Code Civ. Proc., § 437c, subd. (p)(2).) Although Aton pointed

to testimony that Brady “understood” Aton and United were entering into

oral or implied agreements during the VOB calls, the evidence established

Brady did not participate in or listen to the calls. His unilateral, subjective

impression of their effect falls short of establishing mutual assent. (See

Bustamante, supra, 141 Cal.App.4th at p. 208 [“ ‘If there is no evidence 

establishing a manifestation of assent to the “same thing” by both 

parties, then there is no mutual consent to contract and no contract 

formation.’ [Citation.] ‘Mutual assent is determined under an objective 

standard applied to the outward manifestations or expressions of the parties, 

i.e., the reasonable meaning of their words and acts, and not their 

unexpressed intentions or understandings.’ ”].)

On appeal, Aton again cites no evidence establishing that United

representatives said anything during VOB calls that, when reasonably

interpreted, conveyed an intent to enter into a contract. Instead, Aton

asserts, “United informed [Aton] it would pay for either of its treatments

(detox care or residential treatment) under the UCR or MNRP pay rates.” 

(Italics added.) Aton cites two pages of VOB forms (one completed by Reed,

the other by Liggett) in support of this assertion. However, these forms only
29

reflect that Reed and Liggett learned from a United representative that a

prospective patient’s policy used the UCR or MNRP reimbursement rate. 

They do not indicate what the United representative’s actual words were or

otherwise reflect that the representative said United “would pay” for the

prospective patient’s treatment. Moreover, Reed, the creator of the VOB

forms, testified Aton’s VOB forms are merely informational. Aton’s citation

to the forms therefore fails to establish that its communications with United

went “beyond VOB . . . calls describing the type of treatment and specific 

billing rates.”6 (Aton Center, Inc. v. Blue Cross and Blue Shield of Illinois, 

supra, 2021 WL 615051, at p. *5.) 

Turning to Aton’s second argument—that both sides did or should have 

understood that MNRP meant “50[ percent] of the provider’s billed charges” 

and UCR meant “100[ percent] of [Aton’s] billed charges”—this contention

also does not withstand scrutiny. Although Aton cites evidence ostensibly 

supporting its assertion, an examination of the evidence reveals it does not 

provide factual support for Aton’s claim. 

6 In reply, Aton, citing excerpts of Mann’s deposition testimony

submitted in opposition to summary judgment, argues for the first time on 

appeal that Mann “believed the VOB calls represented promises to pay.” 

This argument, and the testimony on which it relies, do not compel reversal 

of summary judgment. Mann testified about two specific VOB forms and 

calls, not VOB calls in general. Mann’s subjective belief the calls

“represented” a promise does not establish the same conclusion would be 

reached under an objective standard. (Bustamante, supra, 141 Cal.App.4th 

at p. 208.) Mann was interpreting the VOB forms and did not indicate she 

had an independent recollection of the calls. And at the summary judgment 

hearing, Aton’s counsel told the trial court none of the intake employees, 

including Mann, “remember these calls.” 
30

Aton relies in part on Brady’s declaration that United “historically 

paid” 50 percent of Aton’s billed charges “under the MNRP method.” 

However, this only establishes Brady’s unilateral expectation that United’s 

future reimbursements would reflect its historical payment rates; it does not 

establish that the parties mutually agreed during VOB calls that United’s 

payment of the subject claims would comport with its payment of prior 

claims. Aton also relies on Brady’s deposition testimony that UCR means 

“[u]sual, customary, reasonable” and Aton “meet[s] all those criteria.”7 

Again, however, this evidence shows only that Brady believed Aton’s rates 

were usual, customary, and reasonable, not that United held the same belief. 

Aton also attempts to rely on “the language United uses in its own 

plan.” We decline to consider this evidence. Aton has not challenged the trial 

court’s ruling that Aton is judicially estopped from asserting claims “based 

upon what the policies and/or plans may set as the payment rate.” As a

result, the ruling is binding on appeal (RMR Equipment Rental, supra 65 

Cal.App.5th at p. 392) and Aton may not rely on the terms of United’s plan to 

resurrect its claims.

Aton also relies on the averment of its expert that for “ ‘the VOB[s] in 

which [Aton] was informed that the allowed amount was to be based on the 

UCR, [Aton] should be paid its billed amount.’ ” However, this statement 

merely reflects the expert’s opinion of the operation of the UCR 

reimbursement methodology in hindsight. It does not establish that United 

7 Although Aton also cites three other parts of the record (one pertaining 

to Brady’s declaration and two pertaining to Brady’s deposition testimony), 

the citations are either not comprehensible or fail to address the UCR.
31

held the same view or that it agreed during VOB calls to fully reimburse Aton

whatever it ultimately billed for a particular treatment. 

Finally, although Aton refers to United’s authorization of treatment in 

the heading of the relevant section of its opening brief on appeal, it does not 

go on to present a developed argument explaining how the authorizations 

evidenced agreements to pay Aton at specified rates. Any such argument has 

been forfeited. (Oak Valley Hospital Dist. v. State Dept. of Health Care 

Services (2020) 53 Cal.App.5th 212, 228 [undeveloped arguments are forfeited 

on appeal].) Even if we were to consider the authorizations, we would not 

regard them as evidence of payment agreements independent of the terms of 

United’s plans. United’s evidence pertaining to authorizations established 

that payment was not addressed during the authorization process. Dr. 

Murphy testified that rates of reimbursement or payment are not discussed 

by him or United during authorization. United’s authorization letters were 

devoid of information about the cost of anticipated treatment. To the 

contrary, they cautioned that “[p]ayment for services described in this letter 

is subject to,” among other things, “benefit plan limitations.” This evidence 

tends to negate, rather than establish, that any rate agreement was formed 

during the authorization process, much less an agreement that was 

independent of existing plan terms. (See Pacific Bay Recovery, supra, 12 

Cal.App.5th at p. 216 [no implied contract formed during prior authorization 

process where “it does not appear the parties reached any sort of agreement 

as to the rate [the insurer] would pay [the provider]”].) 

In short, Aton fails to cite record evidence supporting either of its 

factual assertions. As a result, it fails to establish that the trial court erred 

by concluding it lacked evidence to prove the mutual assent necessary to 

establish the existence of an oral or implied contract with United.
32

Aton’s appellate reliance on Bristol SL Holdings, Inc. v. Cigna Health 

and Life Ins. Co. (9th Cir. Jan. 14, 2022) 2022 WL 137547 (mem. dispo.) 

(Bristol SL Holdings) does not persuade us to reach a different conclusion 

about the viability of its contract claims. There, the district court granted 

summary judgment in favor of Cigna after concluding there was “a lack of 

discussion between the two parties over the ‘usual, customary, and 

reasonable rate’ (UCR)” and because it determined that automatic 

disclaimers played before verification and authorization calls prevented 

formation of any contract. (Id. at p. *1.) The Ninth Circuit reversed in a 

memorandum disposition, holding the first of these determinations was 

simply incorrect—the provider did, in fact, “introduce evidence of discussions 

over UCR, which the district court improperly ignored.” (Ibid.) As for the 

disclaimers, the appellate court held they did not eliminate the possibility 

contracts were formed during the calls. (Ibid.) 

Unlike Bristol SL Holdings, here we have been presented with no 

evidence of “discussions over UCR” that the trial court improperly ignored. 

Although the trial court did note the existence of disclaimers in United’s 

authorization letters, it cited this as one of numerous factors supporting its 

finding that Aton failed to establish mutual assent, unlike Bristol SL 

Holdings in which the district court viewed such disclaimers as 

independently precluding contract formation. Moreover, Bristol SL Holdings 

did not address ERISA preemption, and the disclaimer language it

considered (that any information provided “ ‘does not guarantee coverage or 

payment’ ”) was unlike the disclaimer language discussed above. (See Bristol 

SL Holdings, supra, 2022 WL 137547 at p. *1.) The court therefore had no 

occasion to consider the extent to which disclaimers like those at issue in this 

case tend to dispel the implication the insurer’s authorizations created 
33

payment agreements independent of plan terms. In short, the reasoning of 

Bristol SL Holdings does not persuade us that the trial court in this case 

erred.

2. Aton’s Additional Arguments Lack Merit

Aton separately advances seven additional arguments challenging the 

trial court’s summary adjudication of its oral and implied contract causes of 

action. We address each and conclude none justify reversal of summary 

judgment.

Aton’s first argument is addressed to the trial court’s finding that 

United representatives responsible for conducting VOB calls were not 

authorized to enter into contracts to pay or guarantee coverage on United’s 

behalf. Aton asserts the authority of United’s representatives “could not be 

adjudicated at the summary judgment stage because their agency in that 

regard presented a question of fact.” It is well settled, however, that issues of 

fact appropriately serve as the basis for entry of summary judgment when 

they are not in dispute. (See Code Civ. Proc., § 437c, subd. (p)(2).) There is 

nothing unique about an employee’s scope of agency that might exempt it 

from this rule. (See, e.g., Universal Bank v. Lawyers Title Ins. Corp. (1997) 

62 Cal.App.4th 1062, 1066 [summary judgment is appropriate where the 

evidence of agency is undisputed and susceptible of only one inference].) No 

material dispute was presented as to United VOB representatives’ lack of 

authority to contract on behalf of United, and the trial court did not err by 

relying on this undisputed fact in reaching its decision.

Aton contends “a jury could find [United representatives’] actual or 

ostensible authority was implied” based on evidence United’s representatives 

provided “payment rates” to Aton. We are not persuaded. “Ostensible 

authority is such as a principal, intentionally or by want of ordinary care, 
34

causes or allows a third person to believe the agent to possess.” (Civ. Code,

§ 2317.) “A corollary derived from this principle is that ostensible authority 

of an agent cannot be based solely upon the agent’s conduct.” (Pierson v. 

Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 635.) 

Aton’s ostensible agency theory relies on the conduct of United’s

representatives. Because it cites no evidence of acts by United that caused it

to believe United’s VOB representatives possessed authority to contract,

Aton’s argument fails.

Second, Aton maintains the parties did not have to inform each other of

their intent to enter into a contract for a contract to be formed. This point is

true enough. (See, e.g., Rest. 2d Contracts, § 21, com. a. [explaining that the 

parties’ “accurate understanding of the applicable law” and “intention to 

affect legal relations . . . may be important in interpreting their 

manifestations of intention . . . but they are not essential to the formation of a 

contract”].) However, Aton fails to explain how it establishes reversible error.

It leaps from this point to the following conclusion: “Therefore, the evidence 

in this case satisfies all of the necessary elements of the existence of a

contract.” We are not required to address such an undeveloped argument 

and instead pass on it without further consideration. (See Dinslage, supra, 5

Cal.App.5th at p. 379 [“ ‘ “On review of a summary judgment, . . . ‘it is the

appellant’s responsibility to affirmatively demonstrate error’ ” ’ ” which

requires it to both “ ‘direct the court to evidence that supports [its]

arguments’ ” and “ ‘explain how [its cited authority] applies in [its] case’ ”].) 

Aton’s third argument consists of a series of disconnected assertions 

that again fail to establish reversible error. It argues (1) “it does not matter 

that both sides may have differing views on the meaning of the VOB calls” 

because mutual consent is determined under an objective standard; 
35

(2) mutual consent is ultimately an issue of fact; (3) to the extent Brady’s 

understanding of VOB calls differed from that of Aton’s intake team, Brady’s 

understanding “is the one that matters,” and any internal misunderstanding 

raises a factual issue precluding summary judgment. The first and second 

points are true, but do not establish reversible error given our conclusion the 

summary judgment record was devoid of evidence of communications during 

the VOB calls that objectively manifested mutual assent. The third point

lacks merit because Brady’s unilateral, undisclosed, subjective interpretation

of the VOB calls (which, we note, was not informed by actual knowledge of

what was said during the calls) is not evidence of mutual assent. (See

Founding Members of the Newport Beach Country Club v. Newport Beach

Country Club, Inc. (2003) 109 Cal.App.4th 944, 956 [“The parties’ undisclosed 

intent or understanding is irrelevant to contract interpretation.”].) 

And to the extent Aton claims its own internal misunderstanding about

the VOB calls “raises . . . a factual dispute, precluding summary judgment,” it

confuses the issue. The mutual assent required for United and Aton to form

a contract is assent between United and Aton, not between Aton’s employees

and its CEO. (See Civ. Code, § 1565 [consent of the parties to a contract must

be “[f]ree,” “[m]utual,” and “[c]ommunicated by each to the other”]; Rest. 2d 

Contracts, § 18 [“Manifestation of mutual assent to an exchange requires that

each party either make a promise or begin or render a performance” (italics

added)].) 

Aton’s fourth argument relies on California Lettuce Growers v. Union

Sugar Co. (1955) 45 Cal.2d 474, 482 and Civil Code section 1610. In

California Lettuce Growers, our high court applied the rule that “[t]he

absence of price provisions does not render an otherwise valid contract void”

in holding that an agreement to grow sugar beets was not void for want of a
36

price provision. (See California Lettuce Growers, supra, 45 Cal.2d at pp. 481,

482, italics added.) And Civil Code section 1610 states: “When a 

consideration is executory, it is not indispensable that the contract should 

specify its amount or the means of ascertaining it. It may be left to the 

decision of a third person, or regulated by any specified standard.” (Italics 

added.) Both authorities presuppose the existence of a valid contract onto 

which the element of consideration can be superimposed. Here, the essential 

problem is that Aton failed to introduce evidence of the mutual assent 

required to form contracts with United. Without mutual assent, there are no 

extant contracts, and no basis for employing the foregoing authorities to fill 

in the assertedly missing payment term. 

Fifth, Aton contends the trial court’s reliance on the “boilerplate 

disclaimer” contained within “some authorization letters United issued after

the VOB calls” is misplaced because a meeting of the minds could objectively 

be found “from the verification calls alone.” However, Aton identifies no 

record evidence supporting its assertions. As we have already discussed, 

Aton failed to introduce evidence of statements during verification calls from 

which an objective manifestation of intent to enter a binding agreement 

might be gleaned. We again pass on Aton’s unexplained, unsupported 

assertion to the contrary. (Dinslage, supra, 5 Cal.App.5th at p. 379 [“An 

appellant who fails to pinpoint the evidence in the record indicating the 

existence of triable issues of fact will be deemed to have waived any claim the 

trial court erred in granting summary judgment.”].) 

Aton’s sixth challenge to the trial court’s ruling is directed at the 

contract element of consideration. As a separate ground for granting 

summary adjudication, the trial court ruled that Aton’s oral contract cause of 

action failed because “[d]uring the VOB process . . . [Aton] did not need to 
37

treat [United’s] members and [United] was under no obligation to pay [Aton] 

for services”; as a result, there was no “bargained-for-exchange” between the 

parties. We need not and do not address Aton’s challenge to this ruling, 

which served as an independent basis for the court’s decision to grant 

summary adjudication. Mutual consent and consideration are separate 

elements of contract formation (see Civ. Code, § 1550), and summary 

adjudication is properly granted where the moving party succeeds in 

establishing that a single element of a cause of action cannot be proven (Code 

Civ. Proc., § 437c, subd. (p)(2)). Because Aton has failed to establish error in 

the court’s mutual consent ruling, we would not reverse the grant of 

summary adjudication even if we were to agree with Aton’s appellate 

challenge to the court’s ruling on consideration. 

Aton’s seventh argument is that the trial court erred in its resolution of 

Aton’s breach of implied contract cause of action. According to Aton, the 

court erroneously relied only on “the verbal promises alleged” and failed to 

consider that “there was also a course of conduct, including treatment, 

authorization calls, and a prior payment history at rates consistent with 

[Aton’s] expectations.” 

We disagree that the court failed to comprehend the full scope of Aton’s 

implied contract claim. The court expressly considered that Aton’s implied 

contract claim, in addition to relying on VOB calls, also relied on “previous 

payments, historical knowledge, [and] the parties’ history.” The court 

concluded its reliance on these matters was unavailing as Aton “provides no 

evidence that [United] agreed to pay the subject claims the same as it had 

paid previous claims.” Aton, responding to the latter point about the paucity 

of its evidence, points to evidence that the claims of one of the 29 subject 

patients were paid at disparate rates. We disagree that this is evidence of an 
38

implied agreement to pay at any particular rate.8 (See Pacific Bay Recovery, 

supra, 12 Cal.App.5th at p. 216 [no implied contract where plaintiff alleged 

the insurer “did pay a portion of the billed charges, but [the provider] 

argue[d] it was not enough”].) 

In sum, Aton fails to establish that the trial court erred by granting 

summary adjudication of its oral and implied contract causes of action.

III.

Promissory Estoppel Cause of Action

“The elements of a promissory estoppel claim are ‘(1) a promise clear 

and unambiguous in its terms; (2) reliance by the party to whom the promise 

is made; (3) [the] reliance must be both reasonable and foreseeable; and 

(4) the party asserting the estoppel must be injured by his reliance.’ ” (US 

Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.) 

The trial court granted summary adjudication of Aton’s promissory

estoppel cause of action on the ground that “[Aton’s] evidence fails to

demonstrate that [United] made any promises to [Aton] during the VOB

process, much less promises to reimburse as a percentage of billed charges. 

8 Similarly, to the extent Aton argues Brady’s testimony showed United 

had a history of “consistently” paying Aton’s bills at 100 percent of the billed 

amount “under the UCR” and 50 percent of the billed amount “on MNRP 

quotations,” we disagree with this description of his testimony. In the cited 

testimony, Brady discussed his understanding of MNRP and UCR, and he 

stated Aton had received “numerous” prior payments of 50 percent of its 

billed charges when the MNRP rate was quoted, but he did not specify how 

frequently this had occurred. (Cf. Pacific Bay Recovery, supra, 12 

Cal.App.5th at p. 216 [no implied contract where insurer only paid for six of 

31 total days of treatment]; IV Sols., Inc. v. United Healthcare Servs. (C.D. 

Cal. Sept. 27, 2017) 2017 WL 6372488, *14 [no implied contract based on 

allegations of past payment where the referenced payments amounted to no 

more than 51 percent of overall claims].)
39

At best, [United] provided [Aton] with coverage information for its

insureds/[Aton’s] potential patients, which does not amount to a clear and

unambiguous promise to pay a certain dollar amount or a percentage of billed

charges.” 

Aton challenges this conclusion, arguing, “United did more than merely

provide coverage information in vague terms. It gave reimbursement

methods often supported by specific percentages, and then authorized specific

treatment for patients for a specific duration. That is enough for a trier of

fact to find a clear promise.” (Italics added.)

We disagree. “ ‘ “[A] promise is an indispensable element of the 

doctrine of promissory estoppel. The cases are uniform in holding that this

doctrine cannot be invoked and must be held inapplicable in the absence of a

showing that a promise had been made upon which the complaining party

relied to his prejudice . . . .” [Citation.] The promise must, in addition, be

“clear and unambiguous in its terms.” [Citation.] “Estoppel cannot be

established from . . . preliminary discussions and negotiations.” ’ ” 

(Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 417

(Granadino); see Pacific Bay Recovery, supra, 12 Cal.App.5th at p. 215, fn. 6

[provider failed to state a cause of action for estoppel because it did not allege

“a promise clear and unambiguous in its terms”].) 

Aton is confusing the requirement of specificity with the requirement of

the existence of a promise. “A ‘promise’ is an assurance that a person will or 

will not do something.” (Granadino, supra, 236 Cal.App.4th at p. 417.) As

we have already discussed, United’s moving evidence tended to establish that

no commitments were made by United representatives during VOB calls. To

the contrary, United’s evidence established that VOB calls were not

“promises to pay.” In opposition, Aton identified no evidence supporting a
40

reasonable inference that clear and unambiguous promises or assurances of

payment at rates corresponding to Aton’s billed charges were actually made

during the VOB calls at issue or the authorization process. Aton’s appellate

assertions, which are unsupported by citations to record evidence, that

United “gave” reimbursement methods and then authorized treatment fall

short of establishing that United promised to pay Aton in accordance with

Aton’s expectations.9 

The unpublished federal court cases on which Aton relies do not

demonstrate otherwise. For reasons we have already explained, Bristol SL 

Holdings, supra, 2022 WL 137547, is inapposite. The other cases cited by 

Aton are distinguishable because they were decided at the pleadings stage 

and involved alleged facts distinct from the facts that were proven here. (See, 

e.g., Aton Center, Inc. v. Blue Cross and Blue Shield of Illinois, supra, 2021 

WL 615051, at p. *6 [where complaint alleged sufficient facts to state a claim 

for breach of oral contract, it also alleged facts “to infer a clear and 

unambiguous promise”]; California Spine and Neurosurgery Institute v. 

Oxford Health Ins. Inc. (N.D. Cal. Nov. 20, 2019) No. 19-cv-03533-DMR, 2019 

WL 6171040, *2–5 [denying motion to dismiss and permitting promissory 

9 We disagree with Aton’s contention that the reimbursement methods

provided during VOB calls were “often supported by specific percentages,” to

the extent Aton implies the specific percentages pertained to its own charges. 

The VOB forms, in addition to asking for a rate of reimbursement, asked for

the percentage “[r]eimbursed after the deductible is met[.]” Reed, the creator

of the VOB forms, testified this percentage corresponded to the rate of

reimbursement reflected in the form. He agreed, by way of example, that for

a VOB form indicating a rate of reimbursement of MNRP and a “percent

reimbursed” of 90 percent, this meant “the amount of reimbursement . . . is

90 percent of the MNRP[.]” The forms did not “say anything about

percentage of total charges.” 
41

estoppel claim to proceed where “the parties have not yet had the opportunity 

to develop evidence of industry custom about whether Defendants’ 

authorization of services coupled with a verification call constitutes a promise 

to pay”].) 

IV.

Intentional Misrepresentation, Negligent Misrepresentation, and Fraudulent 

Concealment

In a single section of its opening brief on appeal, Aton collectively

challenges the trial court’s summary adjudication of its second, third, and

fourth causes of action for intentional misrepresentation, negligent

misrepresentation, and fraudulent concealment. The trial court granted

summary adjudication of these causes of action after determining evidence

supporting several elements of each cause of action was lacking. 

The elements of intentional misrepresentation “are (1) a 

misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance,

(4) actual and justifiable reliance, and (5) resulting damage.” (Chapman v.

Skype Inc. (2013) 220 Cal.App.4th 217, 230–231.) The trial court granted

summary adjudication of Aton’s intentional misrepresentation upon

concluding that United succeeded in showing that Aton could not prove

United made misrepresentations, knew any alleged misrepresentations were

false, or intended to induce Aton’s reliance on the purported

misrepresentations. 

The elements of negligent misrepresentation are: “(1) the 

misrepresentation of a past or existing material fact, (2) without reasonable 

ground for believing it to be true, (3) with intent to induce another’s reliance 

on the fact misrepresented, (4) justifiable reliance on the misrepresentation, 

and (5) resulting damage.” (Apollo Capital Fund LLC v. Roth Capital 
42

Partners, LLC (2007) 158 Cal.App.4th 226, 243.) The trial court found that 

United succeeded in showing Aton could not establish a misrepresentation of 

a past or existing material fact (since misrepresentations about future 

payment rates concerned future conduct), or United’s intent to induce Aton’s 

reliance on the purported misrepresentation. 

The elements of fraudulent concealment are “(1) concealment or 

suppression of a material fact; (2) by a defendant with a duty to disclose the 

fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by 

intentionally concealing or suppressing the fact; (4) the plaintiff was unaware 

of the fact and would not have acted as he or she did if he or she had known 

of the concealed or suppressed fact; and (5) plaintiff sustained damage as a 

result of the concealment or suppression of the fact.” (Graham v. Bank of 

America, N.A. (2014) 226 Cal.App.4th 594, 606.) The trial court concluded 

that Aton could not establish the elements of United’s concealment or 

suppression of a material fact; United’s duty to disclose the purported 

material fact; and United’s intent to defraud Aton. 

Aton asserts five collective challenges to these rulings. First, it asserts 

that its “fraud claims . . . raise factual issues.” (Boldface and italics omitted.) 

In part, Aton points to two unpublished federal district court orders. 

(Summit Estate, Inc. v. Cigna Health and Life Insurance Co. (N.D. Cal. Mar. 

30, 2022) No. 5:20-cv-04697-EJD, 2022 WL 958380, *3–4; Broad Street 

Surgical Center, LLC v. UnitedHealth Group, Inc. (D.N.J. Mar. 6, 2012) 

No. 11–2775 (JBS/JS), 2012 WL 762498, *12.) However, these decisions are 

inapposite because they addressed the sufficiency with which the provider’s 

complaint alleged fraud or negligent misrepresentation. Aton’s only attempt 

to identify a factual dispute precluding summary adjudication of its “fraud 

claims” is this assertion: “Given that United paid substantially less than 
43

what was promised and less than how it had even historically reimbursed 

[Aton] provides the sort of circumstantial evidence needed to support the 

fraud claims.” This argument runs afoul of the rule that “ ‘something more 

than nonperformance is required to prove the defendant’s intent not to 

perform his promise.’ ” (Tenzer v. Superscope (1985) 39 Cal.3d 18, 30.) “[I]f 

plaintiff adduces no further evidence of fraudulent intent than proof of 

nonperformance of an oral promise, he will never reach a jury.” (Id. at p. 31.) 

Accordingly, we reject Aton’s first argument.

Aton’s second and third arguments are perfunctory and undeveloped. 

Its second argument is: “that United’s VOB team may have only innocently

passed on information United provided it does not get United off the hook for

fraud” because “ ‘a principal may be liable where he intentionally misinforms

or withholds information from the agent and the agent thereon innocently

misrepresents.’ ” However, Aton cites no record evidence establishing that

United intentionally misinformed or withheld information from its agents. 

Its third argument is: “fraud usually presents a question of fact” and

“[c]ertainly, whether United intended to defraud or induce reliance raises

factual issues.” This argument is also unaccompanied by citation to evidence

purportedly showing United’s intent to defraud or induce Aton’s reliance. 

Again, Aton’s obligation as the appealing party is to “ ‘direct the court to

evidence that supports [its] arguments’ ” and “explain how [its cited

authority] applies in [its] case.” (Dinslage, supra, 5 Cal.App.5th at p. 379.) It

is not our duty to “ ‘comb through the record for evidentiary items to create a 

disputed issue of material fact.’ ” (Ibid.) Aton’s failure to properly support its

second and third arguments with citations to record evidence results in

forfeiture of both points.
44

Aton’s fourth argument is that United has a duty “to accurately provide

the payment reimbursement rate when it voluntarily agrees to do so.” Its

fifth argument makes the related point that “triable issues of fact remain

whether representations concerning the rate of percentage promised were

accurate” given that “at minimum, reimbursement at 50[ percent] was

promised.” In support of the latter argument, Aton cites testimony from a 

United representative regarding the interpretation of language of a 

particular insurance plan. Simply put, the cited testimony does not support 

Aton’s factual assertion. We also agree with United’s contention that the

trial court’s unchallenged judicial estoppel ruling applies, and as a result,

Aton is foreclosed from attempting to revive its claims by relying on evidence

of “what the policies and/or plans may set as the payment rate.” We thus

reject Aton’s fourth and fifth arguments. In sum, we conclude Aton has failed

to establish that the trial court erred by summarily adjudicating its causes of

action for intentional misrepresentation, negligent misrepresentation, and

fraudulent inducement.

V.

Violation of the UCL

The last cause of action disposed of on summary judgment was Aton’s 

cause of action for violation of the UCL. “Business and Professions Code 

section 17200 et seq. prohibits unfair competition, including unlawful, unfair, 

and fraudulent business acts. The UCL covers a wide range of conduct. It 

embraces ‘ “ ‘ “anything that can properly be called a business practice and 

that at the same time is forbidden by law.” ’ ” ’ ” (Korea Supply Co. v. 

Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143, fn. omitted.) Because 

the UCL “ ‘is written in the disjunctive, it establishes three varieties of unfair 

competition—acts or practices which are unlawful, or unfair, or fraudulent.’ 
45

[Citation.] An act can be alleged to violate any or all of the three prongs of 

the UCL—unlawful, unfair, or fraudulent.” (Berryman v. Merit Property 

Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) However, the 

remedies available for violation of the UCL are limited. Only equitable 

remedies can be obtained; damages cannot be recovered. (Korea Supply Co., 

at p. 1144.)

The trial court ruled that Aton’s cause of action for violation of the UCL 

failed for a number of reasons. It found that Aton could not maintain its 

UCL claims, which were equitable in nature, because it had an adequate 

remedy at law—its other causes of action for which it sought money damages, 

which the court ruled was “true even if the plaintiff’s non-UCL claims 

ultimately fail.” It also found that United had succeeded in demonstrating 

that Aton could not establish that United actually engaged in any unlawful, 

unfair, or fraudulent business act or practice. 

On appeal, Aton challenges the trial court’s ruling only insofar as it 

held Aton could not establish the fraud prong of its UCL claim. Aton asserts 

that if this court reverses the summary adjudication of its intentional 

misrepresentation or fraudulent concealment causes of action, we “must 

likewise reverse judgment on the UCL claim.” We are not reversing the 

court’s summary adjudication of Aton’s intentional misrepresentation or 

fraudulent concealment causes of action, so Aton’s UCL claim cannot be 

revived on the basis of the asserted merit of those causes of action.

Next, Aton contends fraud was sufficiently established because it 

“alleges a . . . continuing pattern of conduct by United in underpaying claims” 

which creates a financial risk for patients as well as the potential for relapse. 

This argument runs afoul of the summary judgment statute, which provides 

that a party opposing summary judgment may not “rely upon the allegations 
46

or denials of its pleadings to show that a triable issue of material fact 

exists[.]” (Code Civ. Proc., § 437c, subd. (p)(2).) 

Finally, Aton asserts that it “should be allowed to plead claims for both 

monetary damages under the fraud claims and injunctive relief as alternative 

remedies.” However, even if the opportunity to amend the complaint 

remained available at this late juncture, the trial court ruled that Aton’s UCL 

claim fails for reasons independent of concerns about Aton’s ability to seek 

overlapping legal and equitable remedies. The proposed amendment would 

not resolve these additional concerns, which are fatal to the viability of its 

UCL claim. (See Vailette v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th

680, 685 [“leave to amend should not be granted where . . . amendment would 

be futile”].) Aton thus fails to establish that the trial court erred in granting 

summary adjudication of its cause of action for violation of the UCL.

DISPOSITION

The judgment is affirmed. United is entitled to its costs on appeal. 

(Cal. Rules of Court, rule 8.278(a)(1).)

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.