1

Filed 4/12/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

EDWARD WILLIAM KUNTZ et al.,

Plaintiffs and Appellants,

v.

KAISER FOUNDATION HOSPITAL et al.,

Defendants and Respondents.

C087967

(Super. Ct. No. 

34201400165348CUPOGDS)

APPEAL from a judgment of the Superior Court of Sacramento County, 

Christopher E. Krueger, Judge. Affirmed.

The Law Office, Edward P. Dudensing, Jay P. Renneisen and Andrew J. Collins

for Plaintiffs and Appellants.

Muro & Lampe, Inc., Mark A. Muro, Marion’s Inn LLP, Mark Palley, Yvonne M. 

Pierrou and Denise Ngo for Defendants and Respondents.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of Parts I – II.
2

Plaintiffs, consisting of the estate of decedent Edward William Kuntz (decedent), 

his wife, and his three children, sued, among others, the Kaiser Foundation Hospital and 

the Permanente Medical Group, Inc. (collectively Kaiser), asserting against Kaiser causes 

of action sounding in elder abuse, negligent infliction of emotional distress, and wrongful 

death. Kaiser filed a petition to stay the action and compel arbitration. The trial court 

granted the petition as to the elder abuse cause of action, staying the other causes of 

action. Ultimately, the trial court entered judgment in favor of Kaiser. 

On appeal, plaintiffs assert that (1) Kaiser failed to satisfy its burden of producing 

a valid agreement to arbitrate, and (2) Kaiser failed to comply with the mandatory 

requirements of Health and Safety Code section 1363.1 concerning the disclosure of 

arbitration requirements.

1

 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs commenced this action against Kaiser, among others, by filing a 

complaint alleging causes of action to recover damages, inter alia, for elder abuse (Welf. 

& Inst. Code, § 15600 et seq.), negligent infliction of emotional distress,2 and wrongful 

death. Decedent’s estate asserted the elder abuse cause of action, while decedent’s wife 

and children asserted the negligent infliction of emotional distress and wrongful death 

causes of action. We dispense with the underlying factual allegations because they are 

not relevant to any issue presented on appeal.

1

 Further undesignated statutory references are to the Health and Safety Code.

2

 “ ‘[T]he negligent causing of emotional distress is not an independent tort but the tort 

of negligence . . . .’ ” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 

Cal.3d 583, 588; accord, Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.)
3

Petition to Stay Action and Compel Arbitration

Kaiser filed a petition to stay the action and compel arbitration. Kaiser asserted 

that decedent was enrolled as a member of the Kaiser Foundation Health Plan, Inc. 

(Health Plan), pursuant to his wife’s employment under an “Agreement for Group 

Coverage” (CalPERS Agreement) between Health Plan and the Board of Administration 

of the California Public Employees’ Retirement System (CalPERS). Decedent and his 

wife enrolled under the CalPERS Agreement by an enrollment process administered 

exclusively by CalPERS. 

According to Kaiser, an arbitration provision required binding arbitration of all of 

plaintiffs’ claims. The arbitration provision was contained in the versions of the

CalPERS Combined Evidence of Coverage and Disclosure Form for the Basic Plan

operative in 2012 and 2013, the time period relevant to plaintiffs’ claims. This document 

is incorporated into the CalPERS Agreement. 

Kaiser included a copy of the Combined Evidence of Coverage and Disclosure 

Form for the Basic Plan, effective January 1, 2013, as an exhibit in support of its petition. 

The arbitration provision in that document, under the heading, “Binding Arbitration,” 

stated, in part, “For all claims subject to this ‘Binding Arbitration’ section, both 

Claimants and Respondents give up the right to a jury or court trial and accept the use of 

binding arbitration.”3 The 2012 version of the Combined Evidence of Coverage and 

Disclosure Form for the Basic Plan contained essentially the same arbitration provisions.

Kaiser further asserted that section 1363.1, which requires that the enrollment 

form signed by the subscriber contain a prominently displayed arbitration notice, did not 

3

 We need not set forth the applicable arbitration provisions in any further detail. No 

issue is raised on appeal concerning, for example, the scope of disputes subject to the 

arbitration provisions or the definitions of Member Parties or Kaiser Parties.
4

apply to CalPERS enrollments.4 Kaiser relied on Government Code section 22869, 

which states that information disseminated by the CalPERS Board pursuant to section 

22863 “shall be deemed to satisfy the requirements of Chapter 2.2 (commencing with 

Section 1340) of Division 2 of the Health and Safety Code.” Chapter 2.2, known as the 

Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene Act) (§ 1340), includes 

section 1363.1. Kaiser asserted that CalPERS administers its own enrollment process 

with its own enrollment forms, and that Health Plan is not allowed to substitute its own 

enrollment form or modify CalPERS’s enrollment forms. Thus, because the enrollment 

materials at issue are disseminated pursuant to Government Code section 22869 by the 

CalPERS Board and not by Kaiser, those materials are deemed to satisfy the requirements 

of the Knox-Keene Act, and specifically section 1363.1.

In a declaration submitted with Kaiser’s petition, Angela Kohls, Area Vice

President, Strategic Accounts, described CalPERS’s practice of providing enrollment 

publications to CalPERS members prior to the open enrollment period each year. Kohls 

also stated that these publications were available through the CalPERS website. The 

Health Benefit Summary advised CalPERS members that the Kaiser plan required

binding arbitration of claims, and indicated that the applicable arbitration provision was 

set forth in the Kaiser Evidence of Coverage, which was posted on the CalPERS website. 

Kohls also stated that, each year, prior to open enrollment, CalPERS mailed to its 

4

 As will be discussed in greater detail post, section 1363.1 addresses binding arbitration 

provisions included as a contract term. Such a disclosure “shall appear as a separate 

article in the agreement issued to the employer group or individual subscriber and shall 

be prominently displayed on the enrollment form signed by each subscriber or enrollee.” 

(§ 1363.1, subd. (b).) Subdivision (d) of section 1363.1 requires that, “[i]n any contract 

or enrollment agreement for a health care service plan, the disclosure required by this 

section shall be displayed immediately before the signature line provided for the 

representative of the group contracting with a health care service plan and immediately 

before the signature line provided for the individual enrolling in the health care service 

plan.”
5

members an open enrollment packet that included a newsletter, a Health Benefit 

Statement, and a business reply card for requesting a written copy of the Health Benefit 

Summary and other information. Further, CalPERS’s agreement with Health Plan 

required Health Plan to mail subscribers an Evidence of Coverage after confirmation of 

enrollment, which Health Plan routinely did. Additionally, beginning in 2009, each year, 

Health Plan sent subscribers a card that could be submitted to request a copy of the new 

Evidence of Coverage. The card also instructed subscribers how to view and download 

the Evidence of Coverage online. Kohls stated that Health Plan could not unilaterally 

amend the Evidence of Coverage, and that any change Health Plan proposed had to be 

approved by CalPERS. 

In another declaration, Alice E. Davis, Operations Manager of Special Accounts at 

Kaiser Permanente California Service Center, stated that her responsibilities included 

verifying eligibility of past and present members of the Health Plan. Davis stated that she 

accessed Health Plan’s membership records for decedent. Those records indicated that 

decedent “was continuously enrolled as a Health Plan member, as either a subscriber or a 

spousal dependent, on various accounts, since 1983.” Davis stated that Health Plan’s 

records showed that, as of October 1, 2008, decedent was enrolled as a member “by way 

of his spouse’s employment, under an agreement between Health Plan and” CalPERS. 

Decedent “remained continuously enrolled on that account, though with a change in subgroup, until his death.” Davis stated that Health Plan had no involvement in the 

CalPERS enrollment process, and that CalPERS administered its own enrollment process 

with its own enrollment forms. She further stated that Health Plan had never been 

permitted to substitute its enrollment forms, or to modify CalPERS enrollment forms. 

Plaintiffs’ Opposition

Plaintiffs opposed Kaiser’s petition to stay the action and compel arbitration. 

Plaintiffs asserted that Kaiser failed to meet its burden of producing a valid agreement to 

arbitrate because Kaiser had not “produced an enrollment form demonstrating that 
6

[decedent] was a Kaiser member, let alone that he or anyone else connected with him 

agreed to arbitration.” According to plaintiffs, Kaiser presented no evidence to establish 

that decedent or a family member was a CalPERS employee or received health care 

benefits through CalPERS. Plaintiffs repeatedly referred to Kaiser’s failure to produce an 

enrollment form. 

Plaintiffs further asserted that Kaiser had not complied with the mandatory 

requirements of section 1363.1. Again, plaintiffs emphasized that Kaiser produced no 

enrollment form, and therefore asserted that Kaiser failed to establish that any such 

enrollment form complied with the requirement of section 1363.1 that an arbitration 

agreement be prominently displayed on the enrollment form. Plaintiffs disputed Kaiser’s 

contention that it was not required to satisfy the requirements of section 1363.1. 

Plaintiffs maintained that Kaiser failed to prove that the CalPERS board satisfied the 

requirements of Government Code section 22863 such that it could invoke Government 

Code section 22869. Additionally, plaintiffs asserted that “section 22869 does not 

exempt Kaiser from complying with . . . section 1363.1” (Italics added.) Plaintiffs 

further asserted that there was no evidence that CalPERS prohibited Kaiser from 

complying with section 1363.1, and therefore there was no evidence that compliance was 

impossible. 

Kaiser’s Reply

Kaiser filed a reply, asserting that it had shown the existence of a valid arbitration 

agreement through the authenticating declarations, the agreements between Health Plan 

and CalPERS, the Evidence of Coverage documents, the arbitration provision in the 2012 

Evidence of Coverage, and Davis’s declaration stating that decedent’s membership 

records indicated that he had been enrolled as a Health Plan member since 1983 and had 

been enrolled through his wife’s employment since October 1, 2008. With the reply 

papers, Kaiser included a supplementary declaration by Davis and a printout of 

decedent’s membership records. In her supplemental declaration, Davis explained certain 
7

data from the printout: “Attached as Exhibit A is a true and correct copy of a screen print 

of Health Plan’s computerized membership history records screen for [decedent], with 

[decedent’s] birth date, medical record number, Social Security number, and home 

address redacted for privacy. The purchaser ID number ‘3’ indicates that [decedent] was 

a CalPERS enrollee. Group 3 is CalPERS. This is also shown by the reference to ‘State 

of California.’ ” 

Kaiser reiterated its position that the requirements of section 1363.1 do not apply 

to CalPERS enrollments such as decedent’s. Kaiser asserted that Government Code 

sections 22869 and 22863 exempt CalPERS enrollments from the section 1363.1 

requirements. And Kaiser again asserted it had no authority to require a different 

enrollment form than what CalPERS employs. 

Tentative Ruling

In a tentative ruling, the trial court granted Kaiser’s motion to compel arbitration 

as to the elder abuse cause of action asserted against Kaiser. The court stayed 

proceedings as to the other causes of action. 

The trial court concluded that Kaiser’s records showed that decedent was 

continuously enrolled as a Health Plan member, either as a subscriber or a spousal 

dependent, since 1983. As of October 1, 2008, decedent was enrolled as a member 

through his wife’s employment under an agreement between Health Plan and CalPERS, 

and he remained continuously enrolled as such until his death. The court concluded that 

Kaiser’s evidence, including the Davis declarations and the membership records printout,

were sufficient to demonstrate the existence of a valid arbitration agreement. 

The trial court agreed with Kaiser that CalPERS enrollments were exempt from 

the requirements of section 1363.1. The court concluded that CalPERS was required to 

disclose certain information to each enrollee in a health benefit plan, that Kaiser did not 

have the ability to modify or substitute the CalPERS forms, and that the enrollment forms 

CalPERS employed were exempt from the requirements of section 1363.1. 
8

Oral Argument in the Trial Court

At the hearing in the trial court, plaintiffs’ attorney stated he did not “see how you 

can input [sic] an agreement to arbitration when we don’t have a signed agreement by 

anyone agreeing to any terms of anything.” The trial court asked, “He was covered by 

CalPERS; right?”, to which plaintiffs’ attorney responded that he did not know whether 

the evidence supported that conclusion. The trial court responded: “Tell you what, I’m 

not going to play games with it. . . . You can file additional papers to prove what his 

enrollment was, or what his employment was, because the problem is . . . he either was or 

was not. If you want to go and try the case and try to prove that up, I’ll let you do that.” 

Plaintiffs’ attorney stated his argument was that an enrollee has to sign an enrollment 

form, and no enrollment form was produced in this case. The court noted, “you should 

know, and your client should know whether or not [decedent] was a CalPERS enrollee. 

If you’re not willing to admit that, . . . you can try that issue and they can put in evidence. 

. . . Maybe how it comes out is that he really was not covered, but from what I have seen, 

I think there is sufficient proof to show, at least on the papers, that the Kaiser plan that he 

was covered under was pursuant to a CalPERS employment.” Plaintiffs’ attorney stated 

his argument was more narrow: “It’s just a question of whether an enrollment form was 

signed, because the enrollment form is what incorporates the whole evidence of 

coverage.” 

Kaiser’s attorney emphasized Davis’s declaration, stating that, as of October 1, 

2008, decedent was enrolled as a member through his wife’s employment under an 

agreement between Health Plan and CalPERS, and he remained continuously enrolled as 

such, with only a change in sub-group, until his death. 

As plaintiffs’ attorney continued to argue that an enrollment form was required, 

the trial court stated it would give plaintiffs the opportunity to prove that at trial. 

However, the court also stated that “I think that the evidence that was submitted is 

certainly sufficient to raise the issue and carry the day on a motion like this, but if the 
9

plaintiff wants to challenge the custodian’s rendition of the contents of various records 

. . . and probe further . . . .” Kaiser’s attorney then emphasized the computer printout of 

decedent’s member history and Davis’s supplemental declaration. 

Plaintiffs’ attorney stated, “I’m not arguing so much about whether he’s a 

CalPERS or CalPERS Kaiser member. I’m saying you’ve got to sign an enrollment 

form.” The trial court asked if there were cases stating that “a CalPERS-covered member 

of a Kaiser plan, that every CalPERS member has to sign an enrollment form every time 

they switch coverage, or anything in order to be subject to the arbitration plan?” 

Plaintiffs’ attorney stated that there was “no case on CalPERS, period.” 

Turning to the other issue, plaintiffs’ attorney asserted that the court in its tentative 

ruling “has taken a very broad view of the scope of those provisions as saying that the 

Knox-Keene Act does not apply to CalPERS.” The court responded that “22863 says 

that information disseminated under 22869 according to 22863[5] . . . ‘shall be deemed to 

satisfy the requirements of Chapter 2.2.’ [¶] Now, I’m not sure how they could state it 

any more broadly . . . .” 

Plaintiffs’ attorney asserted that what mattered was whether CalPERS 

disseminated the relevant information; “if CalPERS had disseminated information 

relating to the arbitration issue, then that would be subject to 22869.”

Kaiser’s attorney asserted that Kaiser submitted ample evidence to establish that 

the relevant material was disseminated pursuant to Government Code section 22863, so 

as to comply with the requirements of the Knox-Keene Act. Kaiser’s attorney

emphasized that the CalPERS Board did mention arbitration, and notified potential 

5

 The trial court appears to have reversed reference to the section numbers. Government 

Code section 22869 provides that information disseminated pursuant to Government 

Code section 22863 shall be deemed to satisfy the requirements of Chapter 2.2, the KnoxKeene Act. 
10

enrollees that there were arbitration notices in various documents and referred enrollees 

and potential enrollees to the Evidence of Coverage documents. Moreover, Kaiser’s 

attorney noted the evidence concerning the distribution of the Evidence of Coverage 

documents, which contained the arbitration provisions. Therefore, according to Kaiser, 

the exemption applied. Kaiser’s attorney further asserted: “[t]he regulation . . . says that 

the contracting agency, the employing agency has to give people the enrollment form that 

is prescribed by the Board.[6] That is in our re[p]ly brief. Prescribed by the Board. So 

that means the Board is controlling the shots here. It’s controlling the information. It 

does so and Kaiser can’t change the forms, can’t change anything about that. The 

exemption applies.” 

Ruling on the Submitted Matter

Following argument and submission of the matter, the trial court adopted the 

tentative ruling. The court added the following: “At oral argument, Plaintiffs argued that 

[Kaiser] failed to satisfy their burden to demonstrate: (1) that [decedent] was enrolled as 

a member of Kaiser, and (2) that CalPERS disseminated the information required by 

Gov’t Code §22863. [¶] The Court disagrees. Here, [Kaiser] ha[s] proffered sufficient 

evidence showing that [decedent] was enrolled with Kaiser. (Declaration of Alice E. 

Davis; Supplemental Declaration of Alice E. Davis and Exhibit A [membership history 

printout].) [Kaiser] ha[s] also demonstrated that each year CalPERS mails or delivers 

enrollment applications to CalPERS members prior to the open enrollment period. 

(Declaration of Angela Kohls.) CalPERS also disseminates the information required by 

Gov’t Code § 22863 via its website. (Id., Ex. F.) Thus, the Court finds that [Kaiser has] 

satisfied [its] burden.” 

6

 Kaiser’s attorney was referring to California Code of Regulations, title 2, section 

599.515, which we shall discuss in part III.D. of the Discussion, post.
11

Arbitration Award, Dismissal of Remaining Causes of Action, and Judgment

Upon granting Kaiser’s motion for summary judgment as to the elder abuse cause 

of action, the only cause of action before him, the arbitrator issued the final award in 

favor of Kaiser, denying the claim asserted by plaintiffs. The trial court granted Kaiser’s 

unopposed petition to confirm the arbitration award and lifted the stay previously 

imposed. 

Plaintiffs filed a first amended complaint, asserting only causes of action to 

recover damages for negligent infliction of emotional distress and wrongful death. The 

trial court sustained Kaiser’s demurrer without leave to amend as to the negligent 

infliction of emotional distress cause of action, and overruled the demurrer as to the 

wrongful death cause of action. Subsequently, plaintiffs voluntarily dismissed, without 

prejudice, the wrongful death cause of action insofar as asserted against Kaiser. 

Thereafter, the trial court entered judgment in favor of Kaiser. 

DISCUSSION

Plaintiffs seek reversal of the trial court’s order granting Kaiser’s motion to 

compel arbitration as to plaintiffs’ elder abuse cause of action.7 Plaintiffs seek reversal 

on two grounds: (1) Kaiser failed to satisfy its burden of producing a valid agreement to 

arbitrate, and (2) Kaiser failed to comply with the mandatory requirements of section 

1363.1. 

I. Arbitration Agreements and Standards of Review

“California courts ‘have consistently found a strong public policy favoring 

arbitration agreements.’ [Citation.] ‘Although “[t]he law favors contracts for arbitration 

7

 Plaintiffs’ notice of appeal stated that they appeal from the judgment of dismissal after 

an order sustaining a demurrer and from a judgment entered after arbitration and order 

sustaining demurrer. On appeal, the only issues raised by plaintiffs are addressed to the 

trial court’s order compelling arbitration.
12

of disputes between parties” [citation], “ ‘there is no policy compelling persons to accept 

arbitration of controversies which they have not agreed to arbitrate . . . .’ ” [Citations.]’ 

[Citation.] ‘The party seeking to compel arbitration bears the burden of proving the 

existence of a valid arbitration agreement. [Citations.] Petitions to compel arbitration are 

resolved by a summary procedure that allows the parties to submit declarations and other 

documentary testimony and, at the trial court’s discretion, to provide oral testimony. 

[Citations.] If the facts are undisputed, on appeal we independently review the case to 

determine whether a valid arbitration agreement exists.’ ” (Goldman v. Sunbridge 

Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1169.)

“[W]e . . . review the order compelling arbitration de novo.” (Abramson v. 

Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 650, citing NORCAL Mutual Ins. 

Co. v. Newton (2000) 84 Cal.App.4th 64, 71-72 & Herman Feil, Inc. v. Design Center of 

Los Angeles (1988) 204 Cal.App.3d 1406, 1414.) “ ‘ “[T]o the extent the trial court’s 

determination that the arbitration agreement was [valid] turned on the resolution of 

conflicts in the evidence or on factual inferences to be drawn from the evidence, we 

consider the evidence in the light most favorable to the trial court’s ruling and review the 

trial court’s factual determinations under the substantial evidence standard.” ’ ” (Brown 

v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 497 (Brown).) “ ‘ “Substantial 

evidence” is evidence of ponderable legal significance, evidence that is reasonable, 

credible and of solid value.’ ” (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1045.)

II. Validity of the Arbitration Agreement

A. Parties’ Contentions

Plaintiffs assert that Kaiser failed to meet its burden of establishing that decedent

agreed to arbitration. According to plaintiffs, Kaiser’s efforts to force arbitration are 

premised on the facts that (1) decedent or a family member was a CalPERS employee, (2) 

decedent or a family member agreed to pay for and receive health care benefits through 

CalPERS, and (3) decedent or a family member elected to use Kaiser and agreed to be 
13

bound by Kaiser’s agreement with CalPERS with regard to the terms and conditions of 

the health care coverage. Plaintiffs assert that Kaiser failed to offer admissible evidence 

to support any of these premises. Plaintiffs claim that there is no evidence in the record 

to establish that decedent or a family member was a CalPERS employee or received 

health care benefits through CalPERS. Plaintiffs emphasize that Kaiser produced no 

enrollment form. 

Kaiser responds that it provided ample evidence, through Davis’s two declarations 

and the business records she authenticated, to prove decedent was enrolled as a member 

through CalPERS. Kaiser asserts that its evidence constituted sufficient proof and that it 

was not required to furnish an enrollment form, which would not reflect that the wouldbe enrollee was actually enrolled or the dates of enrollment. Kaiser emphasizes that the 

material terms of a writing were not at issue here; it was decedent’s status as an enrollee 

that was at issue. 

B. Analysis

Kaiser offered the declaration of Davis. In it, she stated that she “accessed Health 

Plan’s membership records for [decedent]. Health Plan’s membership records show that 

[decedent] was continuously enrolled as a Health Plan member, as either a subscriber or a 

spousal dependent, on various accounts, since 1983. Health Plan’s membership records 

show that effective October 1, 2008, [decedent] was enrolled as a member by way of his 

spouse’s employment, under an agreement between Health Plan and [CalPERS]. He 

remained continuously enrolled on that account, though with a change in sub-group, until 

his death.” 

In its reply papers, Kaiser included a supplementary declaration by Davis, who 

repeated the foregoing representations from her original declaration. Davis also stated 

that, “[b]ecause CalPERS administers its own enrollment process with its own enrollment 

forms, Health Plan does not have an enrollment form signed by [decedent’s wife] for the 

CalPERS enrollment beginning October 1, 2008. As explained in my previous 
14

declaration, CalPERS reports enrollment information to Health Plan by electronic means 

rather than by providing Health Plan with copies of paper enrollment forms.” 

Along with the supplemental Davis declaration, Kaiser submitted a printout of 

decedent’s computerized membership history. In their reply brief on appeal, plaintiffs 

assert that the printout “should be rejected as it was new evidence produced on reply.” 

As stated in the case on which plaintiffs rely, “[n]ew evidence is generally not permitted 

with reply papers.” (Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 

1076, 1089.) Plaintiffs are correct that this evidence was offered in the trial court with 

Kaiser’s reply papers in further support of the petition to compel arbitration. However, 

plaintiffs failed to object, including at oral argument when Kaiser made arguments based 

directly on this evidence, and despite the fact that the trial court relied on this evidence in 

its tentative ruling. Because plaintiffs failed to raise this contention before the trial court, 

it is forfeited. (Evid. Code, § 353, subd. (a); In re D.D. (2019) 32 Cal.App.5th 985, 992 

[party forfeited challenge by failing to object to the evidence in the trial court].) 

Moreover, even on appeal, plaintiffs failed to raise this issue in their opening brief. 

(Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 

Cal.App.5th 609, 630, fn. 9 (Citizens for Positive Growth), quoting Allen v. City of 

Sacramento (2015) 234 Cal.App.4th 41, 52 (Allen) [“ ‘[w]e do not consider points raised 

for the first time in the reply brief absent a showing of good cause for the failure to 

present them earlier’ ”].)

Taking this evidence into consideration, the membership history records are what 

Davis relied on in making her representations concerning decedent’s status as a Health 

Plan enrollee through CalPERS. We conclude that the foregoing was relevant and 

sufficient to prove decedent was enrolled with Health Plan through CalPERS at the 

relevant times. (See generally Evid. Code, § 351 [“[e]xcept as otherwise provided by 

statute, all relevant evidence is admissible”].)
15

Despite their insistence that an enrollment form was required, plaintiffs fail to 

identify any statutory or case law requiring a provider to produce an enrollment form to 

prove an individual was enrolled in a health care plan. Nor have we, in our independent 

research, discovered any such requirement applicable to the circumstances presented 

here.

Citing Evidence Code section 1523, subdivision (a), plaintiffs assert, as they did 

before the trial court, that the evidence Kaiser produced was insufficient under the 

secondary evidence rule, and consequently, Kaiser was required to produce the 

enrollment form. Evidence Code section 1523, subdivision (a), provides: “Except as 

otherwise provided by statute, oral testimony is not admissible to prove the content of a 

writing.” However, to make its showing that decedent was a Health Plan member 

enrolled through CalPERS, Kaiser was not required to prove the contents of an 

enrollment form, which would prove only that the prospective enrollee at a particular 

time sought to enroll in the subject health plan.

The most probative proof of decedent’s enrollment would be the provider’s 

enrollment records, which is what Kaiser produced in reply papers with Davis’s 

supplemental declaration. We note here that, a “printed representation of computer 

information or a computer program is presumed to be an accurate representation of the 

computer information or computer program that it purports to represent.” (Evid. Code, 

§ 1552, subd. (a).) Other than asserting that Kaiser was required to produce the 

enrollment form, plaintiffs did not object to the membership history records printout as 

inaccurate or unreliable. (Ibid. [“If a party to an action introduces evidence that a printed 

representation of computer information or computer program is inaccurate or unreliable, 

the party introducing the printed representation into evidence has the burden of proving, 

by a preponderance of evidence, that the printed representation is an accurate 

representation of the existence and content of the computer information or computer 

program that it purports to represent”].)
16

Moreover, under the Secondary Evidence Rule, subject to exceptions, “[t]he 

content of a writing may be proved by otherwise admissible secondary evidence.” (Evid. 

Code, § 1521, subd. (a).) Plaintiffs did not argue in the trial court that a “genuine dispute 

exists concerning material terms of the writing and justice requires the exclusion,” or that 

“[a]dmission of the secondary evidence would be unfair.” (Id., subd. (a)(1)-(2).) Indeed,

beyond asserting that an enrollment form was required, plaintiffs did not object to the 

Davis declarations and the computer printout of membership history records, and, as 

such, have forfeited any other objection to that evidence. (Evid. Code, § 353, subd. (a); 

In re D.D., supra, 32 Cal.App.5th at p. 992.) Plaintiffs’ assertion in their opening brief 

that Kaiser presented no admissible evidence to establish that decedent was enrolled with 

Health Plan through CalPERS at the relevant times is unsupported by citation to 

authority, forfeited, and without merit. Additionally, plaintiffs’ objection to the computer 

printout of the membership history records as incompetent evidence was forfeited as it 

was not made in the trial court (In re D.D., at p. 992) or in their opening brief, but instead 

is raised for the first time in their reply brief with no showing of good cause for the 

failure to raise it earlier. (Citizens for Positive Growth, supra, 43 Cal.App.5th at p. 630, 

fn. 9; Allen, supra, 234 Cal.App.4th at p. 52.)

Kaiser’s evidence in the form of Davis’s declaration and supplemental declaration 

and the membership history records were competent evidence, relevant and probative to 

prove that decedent was a Health Plan member enrolled through CalPERS at all relevant 

times. To the extent that the issue of decedent’s status as an enrollee in Health Plan 

through CalPERS turned on factual issues, we conclude Kaiser’s evidence constituted 

substantial evidence supporting the trial court’s determination. (Brown, supra, 197 

Cal.App.4th at p. 497.)

Furthermore, Kaiser submitted its Combined Evidence of Coverage and 

Disclosure Form for the Basic Plan. It also submitted Kohls’s declaration detailing 

CalPERS’s practices of furnishing enrollment materials and publications to members and 
17

Health Plan’s practices of providing Evidence of Coverage publications. This evidence 

established the existence of the arbitration provision to which decedent was subject as a 

Health Plan subscriber enrolled through CalPERS and the dissemination of these 

materials.

Kaiser met its burden of proving the existence of a valid arbitration agreement. 

III. Section 1363.1

A. Plaintiffs’ Contentions

Plaintiffs assert that, even if Kaiser established that decedent was a CalPERS 

Kaiser patient, Kaiser’s motion to compel arbitration should have been denied because 

Kaiser failed to comply with section 1363.1. Plaintiffs assert that section 1363.1 

requires, among other things, that any agreement to arbitrate must be “ ‘prominently 

displayed’ ” on the enrollment form and must clearly state whether the enrollee is 

waiving the right to a jury trial, and all disclosures must appear “ ‘immediately before the 

signature line.’ ” According to plaintiffs, because Kaiser did not produce any enrollment 

form, Kaiser has necessarily failed to establish compliance with section 1363.1.

Addressing Kaiser’s position that section 1363.1 does not apply because decedent

was enrolled through CalPERS, and provisions of the Government Code state that 

dissemination of certain information shall be deemed to satisfy the requirements of the 

Knox-Keene Act, plaintiffs assert Kaiser has failed to demonstrate that the Government 

Code provisions apply. Specifically, plaintiffs assert that Kaiser has not established that 

the CalPERS Board satisfied the requirements of Government Code section 22863 such 

that Government Code section 22869 applied. According to plaintiffs, Kaiser’s evidence, 

in the form of a declaration stating CalPERS general practices, rather than what it 

actually did, does not satisfy the applicable requirements. Further, plaintiffs assert that 

Government Code section 22869 does not exempt Kaiser from complying with section 

1363.1. 
18

B. Applicable Statutory Provisions

Section 1363.1 provides: “Any health care service plan that includes terms that 

require binding arbitration to settle disputes and that restrict, or provide for a waiver of, 

the right to a jury trial shall include, in clear and understandable language, a disclosure 

that meets all of the following conditions: [¶] (a) The disclosure shall clearly state 

whether the plan uses binding arbitration to settle disputes, including specifically whether 

the plan uses binding arbitration to settle claims of medical malpractice. [¶] (b) The 

disclosure shall appear as a separate article in the agreement issued to the employer group 

or individual subscriber and shall be prominently displayed on the enrollment form 

signed by each subscriber or enrollee. [¶] (c) The disclosure shall clearly state whether 

the subscriber or enrollee is waiving his or her right to a jury trial for medical 

malpractice, other disputes relating to the delivery of service under the plan, or both, and 

shall be substantially expressed in the wording provided in subdivision (a) of Section 

1295 of the Code of Civil Procedure. [¶] (d) In any contract or enrollment agreement 

for a health care service plan, the disclosure required by this section shall be displayed 

immediately before the signature line provided for the representative of the group 

contracting with a health care service plan and immediately before the signature line 

provided for the individual enrolling in the health care service plan.”

Government Code section 22863, subdivision (a), provides: “The [CalPERS] 

board[8]shall make available to employees and annuitants eligible to enroll in a health 

benefit plan information that will enable the employees or annuitants to exercise an 

informed choice among the available health benefit plans. Each employee or annuitant 

enrolled in a health benefit plan shall be issued an appropriate document setting forth or 

summarizing the services or benefits to which the employee, annuitant, or family 

8

 “ ‘Board’ means the Board of Administration of the Public Employees’ Retirement 

System” (Gov. Code, § 22762), or the CalPERS Board.
19

members are entitled to thereunder, the procedure for obtaining benefits, and the principal 

provisions of the health benefit plan.”

Government Code section 22869 provides: “Information disseminated by the 

board pursuant to Section 22863, and compliance with regulations of the board adopted 

pursuant to subdivision (a) of Section 22846 and Sections 22800 and 22831, shall be 

deemed to satisfy the requirements of Chapter 2.2 (commencing with Section 1340) of 

Division 2 of the Health and Safety Code.” Section 1363.1 is part of Chapter 2.2.

C. Principles of Statutory Interpretation

“ ‘ “Under settled canons of statutory construction, in construing a statute we 

ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We 

must look to the statute’s words and give them their usual and ordinary meaning.

[Citation.] The statute’s plain meaning controls the court’s interpretation unless its words 

are ambiguous.” [Citations.] ’ ” (People v. Lucero (2019) 41 Cal.App.5th 370, 394-395, 

quoting People v. Arias (2008) 45 Cal.4th 169, 177; accord, Union of Medical Marijuana 

Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1183-1184.)

D. Analysis

There is no ambiguity here. The plain language of Government Code section 

22869 provides that information disseminated by the CalPERS board pursuant to 

Government Code section 22863 “shall be deemed to satisfy the requirements of Chapter 

2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code ” – the 

Knox-Keene Act. (Gov. Code, § 22869.) Section 1363.1 is part of Chapter 2.2, the 

Knox-Keene Act. (§ 1340 [“[t]his chapter,” which includes section 1363.1, “shall be 

known . . . as the Knox-Keene Health Care Service Plan Act of 1975”].) Thus, under the 

plain meaning of Government Code section 22869, information disseminated by the 

CalPERS Board pursuant to Government Code section 22863 shall be deemed to satisfy 

the requirements of, among other things, section 1363.1.
20

Kohls, Area Vice President, Strategic Accounts, stated in her declaration that 

CalPERS provided enrollment publications to CalPERS members prior to open 

enrollment. These publications were also available on the CalPERS website. The Health 

Benefit Summary advised CalPERS members that the Kaiser plan required binding 

arbitration of claims, and indicated that the applicable arbitration provision was set forth 

in the Kaiser Evidence of Coverage, which was posted on the CalPERS website. Kohls 

also stated that, each year, prior to open enrollment, CalPERS mailed to its members an 

open enrollment packet that included a newsletter, a Health Benefit Statement, and a 

business reply card for requesting a written copy of the Health Benefit Summary and 

other information. Further, CalPERS’s agreement with Health Plan required Health Plan 

to mail subscribers an Evidence of Coverage after confirmation of enrollment. Beginning 

in 2009, each year, Health Plan sent subscribers a card for use in requesting a copy of the 

new Evidence of Coverage. The card also instructed subscribers how to view and 

download the Evidence of Coverage online. Health Plan could not unilaterally amend the 

Evidence of Coverage. 

Davis, in her declaration, stated that Health Plan was not involved in the CalPERS 

enrollment process, and that CalPERS administered its own enrollment process with its 

own enrollment forms. She further stated that Health Plan had never been permitted to 

substitute its enrollment forms, or to modify CalPERS enrollment forms. 

According to Kohls, the material that CalPERS disseminates to would-be and 

current enrollees, constitutes information disseminated pursuant to Government Code 

section 22863, subdivision (a), the text of which is set forth in part III.B. of the 

Discussion, ante.

We further note that the applicable regulations (Cal. Code Regs., tit. 2, § 599.500 

et seq.) provide, with regard to enrollment, that the “contracting agency shall make 

available to its employees and annuitants information concerning health benefit plans and 

procedures for enrollment and the enrollment forms prescribed by the Board.” (Cal. 
21

Code Regs., tit. 2, § 599.515, subd. (c), italics added.) Further, as Kaiser notes, the 

applicable regulations define “ ‘[e]nroll’ ” as “to file with the employing office a properly 

completed Health Benefits Plan Enrollment Form electing to be enrolled in a health 

benefits plan,” and define “ ‘[e]mploying office,’ ” in pertinent part, as “any office of the 

state or contracting agency to which jurisdiction and responsibility for health benefits 

action for the employee concerned have been delegated.” (Cal. Code Regs., tit. 2, 

§ 599.500, subds. (f), (b), italics added.) As asserted by Kaiser, the regulatory scheme 

indicates that Kaiser has no option to unilaterally insist on any enrollment materials or 

collect enrollment forms, and Davis’s and Kohls’s declarations support this view. 

Because the enrollment forms are those prescribed by the CalPERS Board, as Kaiser 

asserts, it would not be possible, nor necessary, for Kaiser to comply with the 

requirements of section 1363.1.

Thus, the trial court correctly concluded that the plain and unambiguous language 

of Government Code section 22869 exempts CalPERS enrollments from the requirements 

of section 1363.1 where the CalPERS Board disseminates information pursuant to 

Government Code section 22863. We further conclude that the evidence submitted by 

Kaiser established that decedent’s enrollment with Kaiser was through CalPERS, and 

that, in connection with that enrollment, the CalPERS Board disseminated relevant 

information pursuant to Government Code section 22863, which included, among other 

things, notice of the arbitration requirement. Accordingly, we conclude that the trial 

court correctly determined that the arbitration agreement was not invalid for failure of 

Kaiser to satisfy the requirements of section 1363.1.9

9

 Kaiser filed a request that we take judicial notice of documents pertaining to the 

legislative history of section 1363.1. Decision on the request was deferred pending 

calendaring and assignment of the panel. We deny Kaiser’s request for judicial notice on 

the ground that the subject documents are not necessary to our resolution of the issues 

presented on appeal. (San Diego City Firefighters, Local 145 v. Board of Administration 
22

We disagree with plaintiffs’ contentions that Kaiser has not offered sufficient 

evidence to demonstrate that CalPERS disseminated information, including the 

arbitration notification, pursuant to Government Code section 22863, and that it has not 

laid an adequate foundation for this evidence. We do not agree that, to make this 

showing, Kaiser was required to produce a declaration from a CalPERS employee. 

Rather, the declaration of Kohls, Area Vice President, Strategic Accounts, describing 

CalPERS’s practices in connection with Health Plan enrollments of providing enrollment 

publications to CalPERS members, was sufficient to make this showing. She stated that 

her statements in the declaration, including her descriptions of CalPERS’s and Health 

Plan’s practices concerning the dissemination of relevant information to enrollees and 

would-be enrollees, was within her personal knowledge. 

Also unavailing are plaintiffs’ assertions that Kaiser’s disclosures in the CalPERS 

Agreement are deficient for failure to comply with section 1363.1, and that “Kaiser’s 

interpretation of these government code sections makes no sense when one considers that 

1363.1 requires Kaiser to make the disclosures not only to the enrollees but also directly 

to CalPERS.” Assuming this is relevant to plaintiffs’ circumstances and that they have 

standing to raise it, the section 1363.1, subdivision (b) requirement that the disclosure be 

“prominently displayed” applies to the section 1363.1 enrollment form, not the contract 

between the health care service plan and the employer group. Subdivision (b)’s only 

requirement applicable to an agreement between the health care service plan and the 

employer group is that the disclosure “appear as a separate article in the agreement . . . .” 

(§ 1363.1, subd. (b).) The arbitration provision is indeed a separate article, article 9.7, in 

the CalPERS Agreement. 

of San Diego City Employees’ Retirement System (2012) 206 Cal.App.4th 594, 600, fn. 3 

[judicial notice denied because “the document at issue is not necessary to our resolution 

of this appeal”].)
23

Subdivision (d) of section 1363.1 requires that, in the contract, the disclosure 

“shall be displayed immediately before the signature line provided for the representative 

of the group contracting with a health care service plan . . . .” (§ 1363.1, subd. (d).) On 

the signature page of the CalPERS Agreement, immediately before the lines reciting that 

the parties were executing the agreement by their respective officers’ signatures, appears 

the following disclosure: “By entering this Agreement, the parties agree to have certain 

member disputes (including medical malpractice) decided by neutral, binding arbitration. 

Both of the parties recognize that this may constitute a waiver of the right to a jury or 

court trial for these disputes for members who elect to enroll in the plan. See Section 9. 

General Provisions, Item 9.7. Arbitration, and Attachment 1, the Combined Evidence of 

Coverage & Disclosure Form for the Basic Plan and the Managed Medicare Plan of this 

Agreement.” We conclude that this complies with the requirement in section 1363.1, 

subdivision (d), that, in the contract, the arbitration disclosure is displayed immediately 

before the signature line. (Contra, Robertson v. Health Net of California, Inc. (2005) 132 

Cal.App.4th 1419, 1424-1428 [three paragraphs intervene between the arbitration 

provision on the enrollment form and the signature line; enrollment form failed to comply 

with requirement of section 1363.1, subd. (d)]; Malek v. Blue Cross of California (2004) 

121 Cal.App.4th 44, 62 [arbitration provision on enrollment form not immediately before 

signature line, but, instead, immediately before signature line is a paragraph authorizing 

the release of medical information and the arbitration provision is on the left side of the 

form while the signature line is on the right side].)

Thus, Kaiser’s disclosures to CalPERS comply with the requirements of section 

1363.1. Plaintiffs fail to adequately and persuasively explain why the fact that 

Government Code section 22869 says nothing about the disclosures that must be made by 

Kaiser to CalPERS and does not act to remedy any deficiencies in agreements between 

health plans and CalPERS means that Kaiser’s, and our, interpretation of these provisions 

“makes no sense.” Government Code section 22869 is not addressed to agreements 
24

between health plans and CalPERS; it is concerned with information disseminated by the 

CalPERS Board to employees and annuitants. (§§ 22869, 22863.)

As they did in the trial court, plaintiffs rely on Medeiros v. Superior Court (2007) 

146 Cal.App.4th 1008 (Medeiros). However, that case is inapposite. In that case, the 

writ petitioners (Medeiros) challenged the trial court’s order compelling them to arbitrate 

a dispute with their health insurer, Health Net. (Id. at p. 1010.) They asserted that the 

arbitration provision was not enforceable because Health Net failed to comply with the 

requirements of section 1363.1. Health Net countered that, “as a member of a group 

health plan negotiated between Health Net and Medeiros’s employer,” Medeiros was not 

entitled to the protection of these section 1363.1 requirements, “the requirements of 

section 1363.1 do not apply to the ‘benefits election form’ Medeiros signed and 

submitted to his employer in order to enroll in the group health plan,” and “section 

1363.1’s disclosure obligations would only have been triggered if [Health Net] had 

required Medeiros to sign an ‘enrollment form’ in order to enroll in the health plan.” 

(Medeiros, at p. 1011.) The Court of Appeal reversed the trial court’s order compelling 

Medeiros to arbitrate and directed the court to issue an order denying Health Net’s 

motion to compel arbitration. (Id. at p. 1019.) The court determined that the 

requirements of section 1363.1 were mandatory, and that Medeiros “was entitled to the 

same disclosure from Health Net concerning the arbitration provisions as any individual 

subscriber who signed an enrollment form.” (Medeiros, at p. 1019.) 

Medeiros is not helpful to plaintiffs. CalPERS was not involved in Medeiros and, 

as such, Government Code sections 22863 and 22869 had no applicability. Under the 

circumstances of this case, these sections are dispositive to plaintiffs’ claim concerning 

section 1363.1.

Plaintiffs also rely on Consumer Watchdog v. Department of Managed Health 

Care (2014) 225 Cal.App.4th 862, 880 (Consumer Watchdog), for the proposition that 

“[r]ecent case law has explicitly held that CALPERS is indeed subject to certain
25

provisions of the Knox-Keene Act,” and that Kaiser reads Government Code section 

22869 too broadly. Without delving into the rather complicated details of Consumer 

Watchdog, while plaintiffs may correctly cite Consumer Watchdog for the proposition 

that a state government agency is “subject to certain provisions of the Knox-Keene Act,” 

that fact does not help plaintiffs. Kaiser is not contending that no aspect of the KnoxKeene Act applies to enrollments through CalPERS, a contention to which Consumer 

Watchdog could theoretically be relevant. Rather, Kaiser is simply relying on the express 

language of Government Code section 22869. The plain language of that section 

controls, and provides that “[i]nformation disseminated by the [CalPERS] board pursuant 

to Section 22863 . . . shall be deemed to satisfy the requirements of” the Knox-Keene 

Act. This is not to say that CalPERS is not subject to any provisions of the Knox-Keene 

Act, an issue we need not address here. Our more narrow conclusion, based on the plain 

language of the relevant Government Code provisions, is that information the CalPERS 

Board disseminates pursuant to Government Code section 22863 shall be deemed to 

satisfy those requirements of the Knox-Keene Act, including those found in section 

1363.1, applicable to the disseminated information. (Gov. Code, § 22869.) Consumer 

Watchdog is silent on, and does not undermine, this proposition, and does not support 

plaintiffs’ position to the extent that they assert that a CalPERS-administered plan must 

satisfy the requirements of section 1363.1.

Ultimately, we agree with Kaiser that, pursuant to the plain language of 

Government Code section 22869, the information that CalPERS disseminated pursuant to 

Government Code section 22863, which includes the arbitration provisions and 

disclosures, shall be deemed to satisfy the requirements of the Knox-Keene Act. None of 

the legal or factual arguments advanced by plaintiffs persuade us otherwise. 

Accordingly, we conclude that plaintiffs’ contention that the order to compel arbitration 

of the elder abuse claim should be reversed for Kaiser’s failure to satisfy the requirements 

of section 1363.1 is without merit.
26

DISPOSITION

The judgment is affirmed. Kaiser is awarded its costs on appeal. (Cal. Rules of 

Court, rule 8.278, subd. (a)(1), (2).)

 /s/

MURRAY, J.

We concur:

 /s/

ROBIE, Acting P. J.

 /s/

KRAUSE, J.