1

Filed 6/17/22 Certified for Publication 7/8/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

DAR SAINI,

Plaintiff and Appellant,

v.

SUTTER HEALTH,

Defendant and Respondent.

A162081

(Alameda County

Super. Ct. No. RG19008395)

Plaintiff Dar Saini appeals a judgment entered after the trial court 

sustained without leave to amend the demurrer of defendant Sutter Health

to plaintiff’s third amended complaint. The amended complaint alleges a

violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code,1 § 1750 

et seq.) based on defendant’s failure to disclose, prior to providing emergency 

medical treatment, that its bill for emergency services would include an 

evaluation and management services fee (EMS Fee), by visibly posting 

“signage in or around defendant’s emergency rooms or at its registration 

windows/desks.” Plaintiff acknowledges that Division One of this court 

recently held that identical allegations do not state a cause of action under 

1 All statutory references are to the Civil Code unless otherwise noted.
2

the CLRA. (Gray v. Dignity Health (2021) 70 Cal.App.5th 225 (Gray).)

2

Plaintiff’s arguments that Gray was wrongly decided are not persuasive.3 Nor 

has plaintiff established that the trial court abused its discretion in denying 

further leave to amend. Accordingly, we shall affirm the judgment.

Background

Plaintiff’s original pleadings alleged causes of action for declaratory 

judgment, violation of the unfair competition law (UCL) (Bus. & Prof. Code, 

§ 17200 et seq.), and violation of the CLRA. Following two successful 

demurrers by defendant, plaintiff filed a third amended complaint (hereafter 

complaint) eliminating the causes of action for declaratory judgment and 

violation of the UCL, and asserting a single cause of action for violation of 

section 1770, subdivisions (a)(5) and (a)(14) of the CLRA.4

2 After briefing was complete, the Fifth Appellate District issued Torres 

v. Adventist Health System/West (2022) 77 Cal.App.5th 500 affirming a 

judgment on the pleadings in favor of the defendant hospital on an identical 

claim, albeit on different grounds. (See fn. 8, post.)

3 Plaintiff’s opening brief indicates that his attorney, who also 

represented Gray, had filed a petition for review and request for 

depublication of Gray with the California Supreme Court. Defendant’s 

request that we take judicial notice of the January 26, 2022, order denying 

that request is denied as unnecessary. 

4 Section 1770 reads in relevant part: “(a) The unfair methods of 

competition and unfair or deceptive acts or practices listed in this subdivision 

undertaken by any person in a transaction intended to result or that results 

in the sale or lease of goods or services to any consumer are unlawful: [¶] . . .

[¶] (5) Representing that goods or services have sponsorship, approval, 

characteristics, ingredients, uses, benefits, or quantities that they do not 

have or that a person has a sponsorship, approval, status, affiliation, or 

connection that the person does not have. [¶] . . . [¶] (14) Representing that a 

transaction confers or involves rights, remedies, or obligations that it does 

not have or involve, or that are prohibited by law.”
3

The complaint alleges that in April 2016, after being treated at 

defendant’s emergency room, he was billed an EMS Fee in addition to the

charges for individual items of service and treatment he received. His total 

charges of $4,593 (before discounts) included the undisclosed EMS Fee in the 

amount of $2,811. The complaint continues, “Plaintiff is informed and 

believes and thereon alleges that, unlike other items billed to emergency

room patients, this [EMS Fee] is charged to emergency room patients simply 

for seeking treatment in the emergency room and is designed to cover 

‘overhead’ and general operating and staffing expenses for operating an

emergency room on a 24 hour basis. It is not like other individual billable 

items of treatment or services. Rather, it is . . . charged to every emergency 

room patient who presents and is treated at any one of defendant’s

emergency rooms. Further, the fact that defendant intends to charge an EMS 

Fee to patients simply for being seen in the emergency room is not visibly 

posted on signage in or around defendant’s emergency rooms or at its 

registration windows/desks, where a patient would at least have the 

opportunity of knowing of its existence . . . .” Plaintiff alleges that patients 

“have a right to know about [the EMS Fee], and defendant owed/owes 

plaintiff and class members a corresponding duty to notify them of such fee in 

advance of providing treatment that triggers it.” The complaint emphasizes, 

“To be clear, the signage that plaintiff would deem sufficient to notify 

prospective emergency room patients would be a simple, inexpensive matter, 

and would be of immense benefit to consumers, who would greatly benefit 

from a simple, prominent sign placed in defendant’s emergency rooms.”

California’s “Payers’ Bill of Rights,” Health and Safety Code 

section 1339.50 et seq., sets forth obligations California hospitals owe to 

consumers with respect to the pricing of medical services. Under the Payers’ 
4

Bill of Rights, California hospitals must publish on the hospital’s website or 

at the hospital itself a “charge description master” (chargemaster) listing the 

hospital’s uniform charges for its services. (Health & Saf. Code, § 1339.51, 

subds. (a)(1), (b)(1)5; see also 42 U.S.C. § 300gg-18(e) [Medicare participating 

hospitals must disclose, in addition to their chargemaster, a “list” of 

“standard charges” in accordance with guidelines promulgated by the 

Secretary of Health and Human Services.]; 45 C.F.R. § 180.60, subd. (a)(1);

84 Fed.Reg. 65524-01, 65564 [Medicare participating hospitals must “post 

standard charges for at least 300 shoppable services that can be planned in 

advance.”].) In addition, the Payers’ Bill of Rights requires the hospital to 

“post a clear and conspicuous notice in its emergency department” informing 

patients that the chargemaster is available for review and how it may be 

accessed. (Health & Saf. Code, § 1339.51, subd. (c).)

Plaintiff’s complaint alleges that defendant complies with the above

requirements by listing the EMS Fee in its chargemaster, which is published 

on defendant’s website. The complaint clarifies that plaintiff’s claim is “not 

that defendant fails to list an EMS Fee as a line item in its published 

chargemasters, or that defendant fails to list the price of such fees in its 

chargemasters.” (Fn. omitted.) But, the complaint further alleges, “the 

requirement for hospitals to post their chargemasters online . . . is not 

5 Health and Safety Code section 1339.51, subdivisions (a) and (b) read 

in relevant part: “(a) . . . a hospital . . . shall make a written or electronic copy 

of its charge description master available, either by posting an electronic copy 

of the charge description master on the hospital’s Internet Website, or by 

making one written or electronic copy available at the hospital location. 

[¶] . . . [¶] (b) For purposes of this article, the following definitions shall 

apply: [¶] (1) ‘Charge description master’ means a uniform schedule of 

charges represented by the hospital as its gross billed charge for a given 

service or item, regardless of payer type.” 
5

intended to and does not inform emergency room patients of a hospital’s 

intent to bill an [EMS] Fee for an emergency room visit, which is a matter 

that is not addressed by the requirements for online posting of the 

chargemaster. The two issues, posting of a chargemaster, and notifying 

prospective emergency room patients of the intention to assess an [EMS] Fee, 

are completely separate and very distinct issues.”

The trial court sustained the hospital’s demurrer to the amended 

complaint without leave to amend, concluding that defendant has no duty to 

post notice of the EMS Fee in its emergency room. The trial court ruled that 

the allegations of the complaint show that defendant has complied with its

statutory disclosure obligations and that there is no duty to make an 

additional disclosure of the EMS Fee in light of the public policy reflected in 

federal and state statutes that emergency room care be provided to patients 

without delay or questioning about their ability to pay. (See Health & Saf. 

Code, § 1317, subd. (d) [Hospitals must render emergency services “without 

first questioning the patient or any other person as to his or her ability to pay 

therefor.”]; 42 U.S.C. § 1395dd(a) & (h) (Emergency Medical Treatment and 

Active Labor Act or EMTALA) [Medicare participating hospitals must 

provide emergency services upon request and may not delay the provision of 

services “in order to inquire about the individual's method of payment or 

insurance status.”].) 

Plaintiff timely filed a notice of appeal from the subsequently entered 

judgment.

Discussion

“ ‘ “ ‘The [CLRA], enacted in 1970, “established a nonexclusive statutory 

remedy for ‘unfair methods of competition and unfair or deceptive acts or 

practices undertaken by any person in a transaction intended to result or 
6

which results in the sale or lease of goods or services to any consumer. . . .’

[Citation.]” ’ [Citation.] ‘The self-declared purposes of the act are ‘to protect 

consumers against unfair and deceptive business practices and to provide 

efficient and economical procedures to secure such protection.’ ” ’ ” (Gray, 

supra, 70 Cal.App.5th at pp. 242–243.)

In Gray, supra, 70 Cal.App.5th at page 245, the court held that the 

plaintiff’s assertion that the hospital failed to disclose, prior to providing

medical emergency treatment, that its billing for such treatment would 

include an emergency room charge (ER Charge) does not state a CLRA claim, 

under section 1770, subdivision (a)(5) or (a)(14).

6 In a well-reasoned opinion, 

the court found that requiring such disclosure would be inconsistent with the

“strong legislative policy” reflected in the applicable “multi-faceted statutory 

and regulatory scheme” designed “to ensure that emergency medical care is 

provided immediately to those who need it, and that billing disclosure 

requirements are not to stand in the way of this paramount objective.” (Id. at 

p. 241, citing Health & Saf. Code, §§ 1317, subd. (d), 1339.51, subd. (c); 42 

U.S.C. §§ 1395dd(a) & (h), 300gg-18(e); 45 C.F.R. § 180.60, subd. (a)(1), 84 

Fed.Reg. 65524-01 at p. 65564.) The court explained, “Not only did [the 

hospital] fully comply with all state and federal disclosure requirements, 

including the requirement that there be signage in its emergency room 

departments stating how its pricing information can be accessed [citation], 

but requiring individualized disclosure that the hospital will include an ER 

Charge in its emergency room billing, prior to providing any emergency 

medical services, is at odds with the spirit, if not the letter, of the hospital’s 

statutory and regulatory obligations with respect to providing emergency 

6 There is no dispute that the “ER Charge” referred to in Gray is the 

same fee as the EMS Fee at issue in the present case.
7

medical care.” (Id. at p. 240.) The court added, “Gray claims Dignity owes this 

pretreatment disclosure duty in order to accomplish an objective antithetical 

to state and federal law—to discourage some patients from remaining in the 

emergency room and receiving medical care. He asserts, for example, that if 

signage were posted—identifying the cost of each of the five levels of ER 

Charges (ranging from $984 to $7,356), each level accompanied by a one-word 

descriptor (ranging from ‘minor’ to ‘complex/life-threatening’), with a caveat 

that these are ‘gross’ charges prior to insurance and any other reduction and 

‘[y]our . . . costs may be substantially less’—this would be ‘particularly 

beneficial’ to patients with ‘relatively minor ailments’ and go a long way 

towards making emergency departments ‘less crowded.’ Even if lessening the 

load on our emergency rooms might be a laudable goal, Gray’s sweeping 

assumption that those seeking care at an emergency department can 

accurately diagnose whether their ailment is ‘relatively minor’ and whether 

they can safely transport themselves or be transported to a lower acuity 

facility, is unsupportable. And while Gray complains this is a ‘paternalistic’

attitude and asserts every person has a right to decide for him or herself 

whether to seek medical treatment at an emergency department, and to do so 

based on readily accessible cost information, this disregards the long 

standing regulatory environment within which emergency departments 

operate, which emphasizes that no one in need of emergency care should be 

deterred from receiving it because of its cost.” (Id. at pp. 241–242.)

7

7 The court also held that the same allegations failed to state a cause of 

action under section 1170, subdivision (a)(14). (Gray, supra, 70 Cal.App.5th 

at p. 245.) The court explained, “Gray does not allege any collateral oral 

misrepresentation by Dignity that is at odds with the terms of the hospital’s 

[conditions of admission (COA)]. Nor does he allege that Dignity’s COA 

contains any term prohibited by law. The only allegation Gray makes with 
8

We agree defendant does not have a duty under the CLRA to disclose 

the EMS Fee by posting additional signage in its emergency rooms. As 

plaintiff’s complaint acknowledges, the EMS Fee is disclosed in the hospital’s 

chargemaster in compliance with state and federal law. Making the 

unsupported assumption that this disclosure is insufficient and does not in 

fact convey the necessary information to one seeking this information before 

receiving emergency room treatment, there nonetheless is no basis to require 

further disclosure. Courts have “identified four situations in which a failure 

to disclose a fact constitutes a deceptive practice actionable under the CLRA. 

[Citation.] Those situations arise when the defendant is the plaintiff’s 

fiduciary, when the defendant has exclusive knowledge of material facts not 

known or reasonably accessible to the plaintiff, and when the defendant 

actively conceals a material fact. In addition, the duty to disclose exists ‘when 

the defendant makes partial representations that are misleading because 

some other material fact has not been disclosed.’ [Citation.] . . . In other 

words, a defendant has a duty to disclose when the fact is known to the 

defendant and the failure to disclose it is ‘ “misleading in light of other facts 

. . . that [the defendant] did disclose.” ’ ” (Gutierrez v. Carmax Auto 

Superstores California (2018) 19 Cal.App.5th 1234, 1258 (Gutierrez).) The 

existence of a duty to disclose under the CLRA presents a legal question 

subject to our de novo review. (Ibid.)

respect to the hospital’s COA is that ‘under Hospital’s Contract,’ he is 

assertedly ‘not required to pay’ the ‘undisclosed’ ER Charge. At most, he has 

alleged a breach of contract, which, alone, is not sufficient to state a claim 

under Civil Code section 1770, subdivision (a)(14).” (Ibid.) Here, plaintiff’s 

complaint does not include any allegations regarding defendant’s COA. His 

contention that he can amend the complaint to add such allegations and a 

cause of action for breach of contract is addressed post.
9

Plaintiff argues that defendant had a duty to disclose under the CLRA 

based on its “exclusive knowledge” and “intentional concealment” as alleged 

in his complaint. In this regard, plaintiff’s complaint alleges that defendant 

had “exclusive knowledge that it would be billing plaintiff and class members 

such an [EMS] Fee;” that “this fact was not known or reasonably accessible to 

plaintiff or class members at the time of their emergency room visits”; that 

“[s]uch charges are effectively hidden by defendant’s intentional failure to 

provide notice of them in its emergency rooms;” and that “defendant 

intentionally conceals such fees.” 

In sustaining defendant’s demurrer, the trial court acknowledged that 

defendant “had a duty to disclose medical care fees generally” based on its 

“exclusive knowledge of material facts not known or reasonably accessible to 

the plaintiff,” but concluded that defendant did not have an additional duty 

to disclose the EMS Fee in the manner alleged in the complaint. We agree 

with the trial court’s reasoning. The hospital has a duty under the CLRA, as 

well as the many statutes cited above, to disclose the fees it intends to charge 

for its goods and services, including the EMS Fee. It does so in its 

chargemaster, to which signage in the emergency room directs those 

interested.8 The question here, however, is whether defendant has a duty to 

8 In Torres v. Adventist Health System/West, supra, 77Cal.App.5th at 

page 513, the court held that the hospital’s compliance with the statutory 

disclosure standards, including publication of its chargemaster, did not 

establish that plaintiff had reasonable access to the material facts about its 

EMS Fee. Relying on allegations in the plaintiff’s complaint that the 

hospital’s “chargemaster was ‘unusable and effectively worthless for the 

purpose of providing pricing information to consumers’; the chargemaster 

failed to include the standardized [current procedural terminology] codes 

recognized in the industry; and the chargemaster used coding and highly 

abbreviated descriptions that are meaningless to consumers” (id. at p. 512), 
10

call attention to the EMS Fee by additional signage in the emergency room 

visible to a person seeking emergency care. The Gray court concluded that for 

the reasons it explained no such duty exists, and we agree.

Plaintiff faults the Gray decision for failing to distinguish between 

discouraging treatment by questioning patients as to their “ability to pay” for 

the treatment and merely providing information about the cost of treatment 

so that the patient can make an informed decision. He argues that neither 

the letter nor purpose of the state and federal statutes “is to require a 

hospital to withhold pricing information or fail to inform the patient as to the 

hospital’s intent to assess an [EMS] Fee for their emergency room visit.” But 

there is no withholding of information that is provided on the hospital’s 

chargemaster.

Moreover, the court in Gray carefully considered the competing 

interests served by ensuring that patients are fully apprised in advance of 

the costs of emergency services and ensuring that patients have timely access 

the court reasoned that it could not “conclude as a matter of law that an 

objectively reasonable person who reviewed Hospital’s chargemaster . . .

could discern the circumstances in which the EMS Fee is charged or how the 

amount of the EMS Fee is determined” (id. at p. 513). We need not reach this 

issue, however, as plaintiff’s complaint expressly disavows any claim that 

“defendant fails to list an EMS Fee as a line item in its published 

chargemasters, or that defendant fails to list the price of such fees in its 

chargemasters.” Moreover, the chargemaster is required to be filed annually 

with the Office of Statewide Health Planning and Development (Health & 

Saf. Code, § 1339.55, subd. (a)) and that department is charged with 

investigating claims alleging a violation of the statute and requiring 

corrective action. (Health & Saf. Code, § 1339.54 [“Any person may file a 

claim with the department alleging a violation of this article. The department 

shall investigate and inform the complaining person of its determination 

whether a violation has occurred and what action it will take.”].) Accordingly,

we do not imply that defendant’s chargemaster provides insufficient notice of 

the existence of the EMS Fee.
11

to emergency services. The court observed, “It is also telling that in 

expanding the pricing disclosure obligations of hospitals under the [Patient 

Protection and Affordable Care Act (Pub.L. No. 111-148 (Mar. 23, 2010) 124 

Stat. 119) (Affordable Care Act)], federal regulators took care to ensure that 

these new obligations do not interfere with the emergency treatment 

obligations under the EMTALA. As we have discussed, the new pricing 

disclosure requirements are focused on ‘shoppable’ medical services, that is, 

services that can be scheduled in advance and, by definition, are not 

emergency medical services. Thus, the new pricing information is to be posted 

on-line in a readily accessible format for use by consumers planning for 

scheduled medical treatment. People seek emergency medical treatment, in 

contrast, for serious, and often grave, unplanned accidents or medical 

calamities.” (Gray, supra, 70 Cal.App.5th at p. 241.) The court also cited

legislative history showing that “when concern was raised that the new 

federal disclosure requirements [under the Affordable Care Act] might 

interfere with a hospital’s obligations under the EMTALA—including 

providing emergency treatment to any person who seeks it and providing 

such treatment before any discussion about ability to pay—the [Centers for 

Medicare & Medicaid Services] stated, ‘the price transparency provisions . . .

do not require that hospitals post any signage or make any statement at the 

emergency department regarding the cost of emergency care or any hospital 

policies regarding prepayment of fees or payment of co-pays and deductibles. 

[Citation.] And while the [Centers for Medicare & Medicaid Services] lauded 

hospitals that go beyond posting the new pricing information, the efforts it 

identified were post-treatment financial counseling and workable payment 

strategies.” (Gray, supra, 70 Cal.App.5th at p. 241.) 
12

Plaintiff cites to additional legislative history suggesting that the 

Centers for Medicare & Medicaid Services has considered whether hospitals 

should make public standard charges and “offer consumers opportunities for 

informed decision-making by providing them with information about the cost 

of care which, for example, they might consider prior to visiting a hospital 

emergency department for treatment of a non-life threatening condition.” 

(Citing 84 Fed.Reg. 65524-01 at p. 65536.) But, as Gray makes clear, the 

state and federal legislative bodies are in a superior position to balance these 

competing interests and have done so in crafting the applicable “multifaceted 

statutory and regulatory scheme.” (Gray, supra, 70 Cal.App.5th at p. 241.) 

Our conclusion is consistent with the balance struck by the existing 

regulatory scheme and does not, as plaintiff suggests, disregard the 

“important policy in favor of providing pricing transparency to medical 

patients.”

This reasoning applies with equal force to the alleged omission under 

section 1770, subdivision (a)(14). Plaintiff’s complaint does not distinguish 

between alleged omissions with respect to the “services and/or supplies” it 

provides and omission regarding the “transaction” between it and plaintiff.9

9 Plaintiff’s complaint alleges, “At all relevant times, defendant violated 

the CLRA by engaging in and continuing to engage in deceptive practices, 

unlawful methods of competition, and/or unfair acts to the detriment of 

plaintiff and the class, including, but not limited to, the following: [¶] (a) In 

violation of Civil Code section 1770(a)(5), which applies in the context of 

omissions as well as affirmative misrepresentations, defendant’s acts and 

practices constitute omissions/concealment that the services and/or supplies 

in question had characteristics, uses and/or benefits which they did not have; 

and [¶] (b) In violation of Civil Code section 1770(a)(14), which also applies in 

the context of omissions as well as affirmative misrepresentations, defendant 

omits/conceals that a transaction involves obligations which it does have.”
13

Plaintiff’s remaining arguments that Gray was wrongly decided also 

lack merit. Initially, plaintiff argues that Gray is inapposite because it 

primarily addresses Gray’s claims under the UCL. While much of the 

analysis quoted above is found within the court’s discussion of Gray’s claim 

under the UCL (Gray, supra, 70 Cal.App.5th at pp. 240–242), the court then 

concluded, with respect to Gray’s CRLA claims, that “[f]or all the reasons we 

have discussed in connection with Gray's ‘unfair’ business practice claim, 

Dignity did not owe Gray the duty he claims was owed in this case—to 

disclose, prior to providing any medical emergency treatment, that its billing 

for such treatment would include an ER Charge.” (Id. at p. 244.)

Plaintiff also argues that the Gray decision incorrectly relies on Nolte v. 

Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401 because the facility 

fee at issue in Nolte is distinguishable from the EMS Fee and ER Charge at 

issue here and in Gray. In Nolte, the court held that the plaintiff failed to 

state a cause of action under the UCL based on allegations Cedars-Sinai had 

not “specifically, separately, and individually disclose[d]” an administrative 

charge prior to the plaintiff receiving services from a physician at a hospital 

medical facility. (Id. at p. 1408.) The court explained that Nolte’s complaint 

did “not allege (and the law does not provide) that Nolte had the right to have 

every individual charge specifically disclosed to him in advance before Cedars 

issued a bill. Cedars’s obligation to Nolte and other consumers of medical 

services was that Cedars make a written or electronic copy of its schedule of 

charges available in the manner codified in section 1339.51 of the Health and 

Safety Code, and there is no allegation that Cedars did not do so. Further, 

‘there is no requirement [under the UCL] that reasonable notice has to be the 

best possible notice.’ ” (Nolte, at p. 1409.) The court in Gray found that Nolte

was analogous and agreed with its holding. (Gray, supra, 70 Cal.App.5th at 
14

p. 238.) Although plaintiff here is correct that the “facility fee” at issue in 

Nolte is different from the fee at issue in Gray and the present case, the 

situation nonetheless remains analogous. As the court in Gray explained, 

“This is essentially the same claim Gray advances here—that, prior to 

providing any emergency medical services, Dignity is required to disclose that 

its billing for such services will include an ER Charge. The factual 

distinctions to which Gray points are immaterial.” (Gray, at p. 240.) We agree 

that Nolte is analogous and well-reasoned. 

Plaintiff contends the court in Gray improperly implied a “safe harbor” 

for the hospital’s alleged omission. In Cel-Tech Communications, Inc. v. 

Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182, the court held 

that where specific legislation provides a “safe harbor,” plaintiffs “may not 

use the general unfair competition law to assault that harbor.” The court held 

further, however, that there is no implied “safe harbor” under California law 

for claims asserted under the UCL. As defendant notes, Cel-Tech did not 

address claims asserted under the CLRA. In any event, the Gray court’s 

conclusion that the proposed duty would interfere with the statutory and 

regulatory requirements that hospitals provide emergency care without first 

addressing the costs for care or the patient’s ability to pay does not imply a

“safe harbor” for the alleged omission. (Gray, supra, 70 Cal.App.5th at 

p. 241.)

Nor did the Gray court conclude that defendant’s duty to disclose the 

EMS Fee under the CLRA is expressly preempted by the EMTALA.

10 To the 

contrary, the court found that imposing a duty to disclose prior to providing 

10 Section 1395dd, subdivision (f) of the EMTALA states, “The 

provisions of this section do not preempt any State or local law requirement, 

except to the extent that the requirement directly conflicts with a 

requirement of this section.”
15

any emergency medical services “is at odds with the spirit, if not the letter, of 

the hospital’s statutory and regulatory obligations with respect to providing 

emergency medical care.” (Gray, supra, 70 Cal.App.5th at p. 240.)

Finally, plaintiff argues for the first time on appeal that the defendant 

could reasonably be required to disclose on its website that “if a patient goes 

to the emergency room rather than an urgent care center, the patient will 

incur an [EMS Fee] in addition to the costs of the diagnostic testing and 

treatments that are provided (and mentioned on the website).” Plaintiff’s 

complaint, however, alleges only that defendant’s failure to visibly post 

signage in defendant’s emergency rooms prior to treatment violates the 

CLRA. Contrary to plaintiff’s assertion, additional website disclosure is not 

“within the scope of relief sought” in his complaint.

Accordingly, the trial court properly sustained defendant’s demurrer to 

plaintiff’s cause of action under the CLRA. Moreover, the court did not, as 

plaintiff suggests, abuse its discretion in denying plaintiff leave to amend.

Plaintiff asserts that he should be given leave to amend his complaint to 

allege a cause of action for breach of contract. He argues that the COA form 

he signed provides that the patient is responsible only for charges “for care 

and services” provided to the patient and that insofar as the EMS Fees are 

designed to cover the hospital’s overhead, operating, and administrative 

expenses, they are not recoverable under the terms of the agreement.

11

11 The form signed by plaintiff and submitted by defendant in 

connection with its demurrer reads in relevant part, “HOSPITAL CHARGES: 

The Hospital’s charges for care and services are calculated in accordance with 

the Charge Description Master (‘CDM’) in effect at the time services are 

provided. If you would like to review the CDM charges, please request an

appointment with a Patient Financial Services Counselor. You can also view 

the Hospital’s CDM online at: www.oshpd.ca.gov.” The form adds with 
16

However, these allegations were included in plaintiff’s original complaint to 

which a demurrer was sustained and they were not realleged in his amended

complaint. By amending his complaint to omit the contract allegations, 

rather than appealing the trial court’s order, plaintiff waived any argument

that those allegations sufficiently alleged a cause of action for breach of 

contract. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966.)

Disposition

The judgment is affirmed. Defendant shall recover its costs on appeal. 

POLLAK, P. J.

WE CONCUR:

STREETER, J.

NADLER, J.*

respect to patients with insurance, “If my insurance does not pay all of the 

Hospital’s charges calculated in accordance with the Hospital’s CDM, for the 

services and items provided to me, I agree to pay the unpaid balance.”

* Judge of the Sonoma County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
1

Filed 7/8/2022

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

DAR SAINI,

Plaintiff and Appellant,

v.

SUTTER HEALTH,

Defendant and Respondent.

A162081

(Alameda County

Super. Ct. No. RG19008395)

ORDER CERTIFYING

OPINION FOR PUBLICATION

THE COURT:

The opinion in the above-entitled matter filed on June 17, 2022, was 

not certified for publication in the Official Reports. For good cause it now 

appears that the opinion should be published in the Official Reports and it is 

so ordered.

July 8, 2022 POLLAK, P.J.
2

Trial court: Alameda County Superior Court

Trial judge: Honorable Winifred Smith

Counsel for plaintiff and 

appellant:

CARPENTER LAW 

Gretchen Carpenter

LAW OFFICE OF BARRY KRAMER

Barry L. Kramer

Counsel for defendant and 

respondent:

KING & SPALDING LLP 

Glenn E. Solomon 

Amanda L. Hayes-Kibreab 

Ariana E. Fuller