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. D08 0122

(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 & Whitn ey, 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 underpa id

for substance abuse treatment that it rendered to 29 patients. Seeking to2

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

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

agreements during verific ation 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 Background 1

United Healthcare Insurance Company, Unite d 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 thei r 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

- ne twork 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, suc h as co

payments, 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”

tre atment 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

pa tients 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 o ut

- 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; o r 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 pr ospective patients whose policies provided out

- of

- network

coverage using the UCR reimbursement rate. For patients whose policies4

provided out

- of

- network coverage at a reimbursement rate other than UCR,

the admission decision was made by Brady.

This act ion 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 th e

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

M edicare rate s , and that the MNRP reimbursement methodology relied on

rates published by Medicare. Brady personally approved the admission of

these 20 individuals. For the remaini ng 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 rate s 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. Pleading s
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 m eruit, (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 Retirem ent 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 E RISA 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 cour t 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 c ase, 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 [hol ding 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].)6

B. United’s Motion for Summary Judgment or Alternatively, Summary Adjudication
After conducting discovery, United moved for summary judgment or

alt ernatively

, 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, overs aw call agents

taking inbound VOB calls from providers.

S chmidt 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 provi der “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, wha t 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

- netw ork 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 ben efit 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 mem orializing VOB calls

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

T hese forms showed that in the VOB calls, United representatives had

informed Aton the rate of reimbursement provided by plans covering 20

patients was based o n 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 Ligge tt 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

treat ment 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 ’s8

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 claim s, including breach of contract. H e 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 bei ng 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 se ems, 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 be lief that “when Aton affirmatively calls United and9

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 qu oted 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 t estified, “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 Proc ess

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”

s ervices. 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 st atus, 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 s ummary 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.

Unite d had not agree d during VOB calls to reimburse 100 percent or 50

percent of the amounts Aton billed for treatment. United’s payment11

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 caus e 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 tes timony 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 e vidence 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 equ ated 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 , “th ey [i.e., United representatives] do

not give us anything other than it’s an MNRP, and they may throw in that it12

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 r ate[.]”

Referring to language in United’s MNRP plans that apparently gave a point

by

- 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 charg es.

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 ther e 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, a nd 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 pro viders 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 Uni ted’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 all owed 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 clai ms 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 reim bursement

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,” bu t 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 pa yment 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] c learly

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 judiciall y estopped from relying on plan

terms to oppose summary judgment.

United also argued Aton had failed to carry its burden of present ing

evidence that United representatives made payment promises or

commitments during VOB calls, much less promises or commi tments 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 tri al 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 tak ing a contrary position on summary

judgment.

T he trial court then analyzed the parties’ evidence and arguments

p ertaining 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 Re view

“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.5 th 607, 618. ) A triable is sue 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.4 th 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 plaintiff17

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

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

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

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

Wheth er 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.5 th 322, 338.) “ ‘[W]e examine the facts presented to the trial

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

of California v. Superior Court , supra, 4 Cal.5 th 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 an d

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 her e, we do not

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

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

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

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

Therefore, “ ‘ “[o]n review of a summary judgment, the appellant has the18

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

court.” ’ ” ( Dinslage , at p. 379.)

II.

Oral and Implied Con tract 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 resul t of the breach.”

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

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

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 t hat

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

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

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 th ey are established [citation].’ ” ( Pacific Bay Recovery, Inc. v.

California Physicians’ Services, Inc. (2017) 12 Cal.App.5 th 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 a n 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.’ ” ( Pacifi c Bay Recovery

, supra , 12 Cal.App.5 th at p. 215.) The

court found the eviden ce 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.’ ”

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

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

standard applied to t he 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.4 th 624 , 632.)

In determining that Aton could not show the mutual consent required

to form an oral con tract, 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 in20

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 c harge

for those services. D uring 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 m ade 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 tha t 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, [ A ton ] has established that it

believed oral contracts were formed during the VOB process. However, there21

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

United] held the same view.”

Turning to Aton ’s implied contract caus e 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 conclud ing 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 con tract 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 pursuan t 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 the22

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 gene rally 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 prio r 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 unambigu ous 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’s23

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 on ly 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,’ D efendants 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) mo tion 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] billed24

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

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

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 des cribing 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, I nc. (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 call s 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 prec ise 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 the se three cases because “[t]he evidence before the trial c ourt 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) fact s 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 procedura l 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 suffi ciency

of contract claims based on verification calls , and e ach 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 conclusi on should be reached in another case involving similar

facts.

Instead, o ur 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 speci fic 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 U npublished federal court cases like those on which Aton relies are citable only for their persuasive value. ( Gray v. Quicken Loans, Inc. (2 021) 61 Cal.App.5 th 524, 528, fn. 2.)26

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

. . .

commu nicated to the offeree and an acceptance

. . . communicated to the

offeror.” (1 Witkin, Summary of Cal. Law (11 th 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 reasonabl y

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, Summ ary of Cal. Law, supra , Contracts, §§ 130

– 132,

pp. 170

– 173.)

As Aton ac knowledges 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

go es 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 c harges’ ” 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 “m erely 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 t he 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 all owing

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 conductin g 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 reimbur sement 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 eviden ce thus supported the conclusion the28

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 evi dence 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 j udgment 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 U nited were entering into

oral or implied agreements d uring the VOB calls

, t he evidence established

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

impression of their effect fall s short of establishing mutual assent

. ( See

Bustamante

, supra , 1 41 Cal.App.4th at p. 208 [ “ ‘ If there is no evidence

es tablishing 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 o r 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 call s 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 ad ded.) Aton cites two pages of VOB forms (one completed by Reed,

the other by Liggett) in support of this assertion. However, these forms only29

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

f orms, 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 Cen ter, 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 th e same conclusion would be reached under an objective standard. ( Bustamante

, supra , 141 Cal.App.4th at p. 208.) Mann was interpreting the VOB form s and did not indicat e she had an independent recollection of the call s

. And a t the summary judgment hearin g, Aton’s counsel told the trial court none of the intake employees, including Mann, “remember these calls.”30

Aton re lies 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 ; i t 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, c ustomary, 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 langu age 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 [ At on ] 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 testi mony), 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 relev ant 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. A ny 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. Unit ed’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 evid ence
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 co ntract 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 a ssertions. 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 a n oral or implied contract with United.32

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

and Life Ins. Co. (9 th 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 authoriz ation 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 wi th 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 f

ailed to establish mutual assent, unlike Bristol SL

Holdings in which the district court viewed such disclaimers as
independently preclud ing 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 ex tent to which disclaimers like those at issue in this

case tend to dispel the implication the insurer’s authorizations created33

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 no ne justif y 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 a sserts the authority of United’s r epresentatives “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 i ssues of

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

the y 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.4 th 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 t o 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 c orollary 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.5 th 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 inf orm 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

a ffect 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 poin t 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.5 th 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]

argu ments’ ” 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 judgm ent 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 in formed 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 o r understanding is irrelevant to contract interpretation.”].)

And t o 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 req uired 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” (i talics

added )]. )

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

Sugar C o. (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 b eets was not void for want of a36

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 consi deration 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 foregoin g 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 fr om
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.5 th at p. 379 [“An

appellant who fails to pinpoint the ev idence 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 elemen t 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 to37

treat [United’s] members and [United] was und er 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

su mmary 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 acti on 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 t o 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” a nd 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 th ese 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 an38

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

,

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

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.4 th 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” a nd 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 disagre e. “ ‘ “[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 whic h 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.” ’ ”

( Granadi no v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4 th 411, 417

( Granadino ); see Pacific Bay Recovery

, supra , 12 Cal.App.5 th 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 i n 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.4 th at p. 417.) As

we have a lready 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 identif ied no evidence supporting a40

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 promise d to pay Aton in accordance with

Aton ’s expectations. 9

The unpublishe d 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

f or 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 di smiss 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

fourt h 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 a ction was lacking

.
T he 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.4 th 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 wer e
false, or intended to induce Aton ’s reliance on the purported

misrepresentations.

T he elements of negligent misrepresentation are: “( 1) the

misrepresentation of a past or existing material fact, (2) without reasonable

ground for believing it to be tr ue, (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 Capital42

Partners, LLC (2007) 158 Cal.App.4 th 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 th e 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

in tentionally 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 concealmen t or suppression of the fact.” ( Graham v. Bank of

America, N.A. (2014) 226 Cal.App.4 th 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 th e purported

material fact; and United’s intent to defraud Aton

. Aton asserts five collective challenges to the se rulings . First, it asserts

that its “fraud claims . . . raise factual issues.” (Boldface and italics omitted.)

In part, Aton points to tw o 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, 2 012)

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 d ispute precluding summary adjudication of its “fraud

claims” is this assertion: “Given that United paid substantially less than43

what was promised and less than how it had even historically reimbursed

[ Aton ] provides the sort of circumstantial evidence nee ded 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 u ndevelope d.

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 informati on 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 ques tion 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, Ato n ’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.5 th 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 pro mised 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. W e 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 r elying on evidence

of “what the policies and/or plans may set as the payment rate.” W e 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

acti on 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 C ode

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 tim e is forbidden by law.” ’ ” ’ ” ( Korea Supply Co. v.

Lockheed Martin Corp. (2003) 29 Cal.4 th 1134, 1143, fn. omitted.) Because

the UCL “ ‘is written in the disjunctive, it establishes three varieties of unfair

competition

— acts or practices which are unla wful, 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.4 th 1544, 1554.) However, the

reme dies available for violation of the UCL are limited. Only equitable

remedies can be obtained; damages cannot be recovered. ( Korea Supply Co.

, at p. 114 4 .)

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 n on

- 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 co urt’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

lik ewise 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.

T his argument runs afoul of the summary judgment statute, which provides

that a party opposing summary judgment may not “rely upon the allegations46

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 availabl e 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.4 th

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.