FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEVERLY OAKS PHYSICIANS 

SURGICAL CENTER, LLC, A 

California Limited Liability 

Company,

Plaintiff-Appellant,

v.

BLUE CROSS AND BLUE SHIELD OF 

ILLINOIS; DOES, 1 through 100,

Defendants-Appellees.

No. 19-55820

D.C. No.

2:18-cv-03866-

RSWL-JPR

OPINION

Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, District Judge, Presiding

Submitted August 14, 2020*

Pasadena, California

Filed December 17, 2020

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
2 BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD

Before: Kim McLane Wardlaw and Richard R. Clifton, 

Circuit Judges, and Jennifer Choe-Groves,** Judge.

Opinion by Judge Choe-Groves

SUMMARY***

Employee Retirement Income Security Act

The panel reversed the district court’s dismissal of a 

healthcare provider’s claim for benefits under the Employee 

Retirement Income Security Act, and remanded the case to 

the district court.

The panel held that plaintiff, an assignee of its patients, 

sufficiently alleged that defendant waived or was equitably 

estopped from raising an anti-assignment provision in 

ERISA plan documents as a reason for denying the benefits 

claim for the first time in litigation. Specifically, defendant 

confirmed that ERISA plan benefits were available during 

pre-surgery conversations, plaintiff submitted the claim 

form to defendant indicating that it sought to recover 

benefits via a patient assignment, and defendant either 

denied in full or underpaid the claims during the 

administrative claim process without asserting the antiassignment provision as a ground for denying a full 

reimbursement.

** The Honorable Jennifer Choe-Groves, Judge for the United States 

Court of International Trade, sitting by designation.

*** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD 3

COUNSEL

Richard D. Williams and Mina Hakakian, Williams Law 

Firm PC, Los Angeles, California, for Plaintiff-Appellant.

Raymond A. Cardozo and David J. de Jesus, Reed Smith 

LLP, San Francisco, California; Martin J. Bishop, Reed 

Smith LLP, Chicago, Illinois; Amir Shlesinger, Reed Smith 

LLP, Los Angeles, California; for Defendant-Appellee Blue 

Cross and Blue Shield Of Illinois.

OPINION

CHOE-GROVES, Judge:

Plaintiff-Appellant Beverly Oaks Physicians Surgical 

Center, LLC (“Beverly Oaks”) appeals the district court’s 

dismissal of its claim for benefits under the Employee 

Retirement Income Security Act of 1974 (“ERISA”). 

Beverly Oaks contends that Defendant-Appellee Blue Cross 

and Blue Shield of Illinois (“Blue Cross”) waived or is 

equitably estopped from raising an anti-assignment 

provision as a reason for denying a benefits claim for the first 

time in litigation when Blue Cross confirmed that plan 

benefits were available during pre-surgery conversations, 

Beverly Oaks submitted the claim form to Blue Cross 

indicating that it sought to recover benefits via a patient 

assignment, and Blue Cross either denied in full or underpaid 

the claims during the administrative claim process without 

asserting the anti-assignment provision as a ground for 

denying full reimbursement. Because we agree that Beverly 

Oaks stated an ERISA claim for benefits under a theory of 

waiver or equitable estoppel, we reverse and remand.
4 BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD

I

Beverly Oaks, an out-of-network healthcare provider, 

performed medical procedures on 14 patients who were 

covered under employer-sponsored health insurance plans 

administered by Blue Cross. Eleven patients were covered 

under the Teamsters Western Region & Local 177 Health 

Care Plan (“Teamsters Plan”). One patient was covered 

under the Williams Lea Health Care Plan (“Williams Lea 

Plan”) and another under the Woodward, Inc. Health Care 

Plan (“Woodward Plan”). The remaining patient with the 

unknown insurance plan is identified in the record as 

“Patient E.”1

The language in the Summary Plan Description2

accompanying the Teamsters Plan bars a participant from 

assigning benefits (“Participants are generally responsible 

for notifying the Fund of changes in family circumstances. 

Benefits are not assignable, although the Fund will honor 

qualified medical child support orders.”). Further, the 

Teamsters Plan Rules and Regulations reiterates that 

benefits are not assignable.3 Both the Williams Lea and 

1 Beverly Oaks does not challenge in this appeal the dismissal of the 

claim as to Patient E.

2 “The [Summary Plan Description] is the statutorily established 

means of informing participants of the terms of the plan and its benefits.” 

Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1329 (9th Cir. 1996) 

(citations omitted).

3 Article X, Section B, of the Teamsters Plan Rules and Regulations

provides:

Benefits payable hereunder shall not be subject in any 

manner to anticipation, alienation, sale, transfer, 

assignment, pledge, encumbrance, or charge by any 
BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD 5

Woodward Plans contain identical provisions barring the 

assignment of benefits.4

As a precondition to receiving medical treatment, the 

patient signed Beverly Oaks’ Financial Responsibility 

Agreement, assigning Beverly Oaks the right to collect 

benefits under their Blue Cross insurance plans. Before 

providing each patient medical services, Beverly Oaks 

contacted Blue Cross to determine benefit coverage and 

eligibility for out-of-network benefits. In these pre-surgery 

conversations, Blue Cross represented to Beverly Oaks that 

benefits were paid on an out-of-network basis at a “typical” 

rate of 50% to 100% of the claim and provided additional 

information such as the deductible amount and the patient’s 

account type.

After surgery, Beverly Oaks submitted a claim to Blue 

Cross on behalf of the patient. Beverly Oaks indicated on 

the claim form that it sought to collect ERISA benefits via a 

person; however any Eligible Employee may direct 

that benefits due him/her, except benefits payable 

under Article III, be paid to an institution in which 

he/she or his/her Dependent is hospitalized, or to any 

provider of medical, dental or vision care services or 

supplies in consideration for Hospital, medical, dental 

or vision care services rendered or to be rendered.

4 The anti-assignment provision reads:

A Covered Patient’s claim for benefits under this 

Health Care Plan is expressly non-assignable and nontransferable in whole or in part to any person or entity, 

including any Provider, at anytime before or after 

Covered Services are rendered to a Covered 

Person. . . . Any such assignment or transfer of a claim 

for benefits or coverage shall be null and void.
6 BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD

patient assignment of benefits. Blue Cross processed and 

adjudicated each claim during the administrative claim 

process, either denying the claim in full or issuing a small 

reimbursement for the amount Beverly Oaks claimed. At no 

time during the pre-surgery conversations or during the 

administrative claim process did Blue Cross advise Beverly 

Oaks that it intended to assert an anti-assignment provision 

as a basis for denying reimbursement sought under a patient 

assignment of benefits.

In short, Beverly Oaks submitted 17 claims to Blue Cross 

totaling over $1,400,000 for services rendered to 14 patients. 

Blue Cross denied in full or reimbursed Beverly Oaks less 

than 10% of the claimed benefits, just over $130,000 in total.

Beverly Oaks brought this action against Blue Cross to 

recover additional benefits on the submitted claims under 

ERISA. Beverly Oaks attached to the complaint the 

Financial Responsibility Agreement between Beverly Oaks 

and its patients, an exemplar of the submitted claim or billing 

form, and a summary chart showing the claims for benefits 

that Beverly Oaks sought to recover. Beverly Oaks alleged 

that Blue Cross waived or was equitably estopped from 

asserting the anti-assignment provision in the plan 

documents because Blue Cross did not assert that provision 

either during the pre-surgery telephone conversations or the 

administrative claim process.

Blue Cross moved to dismiss, arguing that Beverly Oaks 

lacked standing to receive benefits because the antiassignment provision in the patients’ healthcare plans were 

valid, enforceable, and thus barred a non-plan beneficiary or 

participant from collecting benefits. Blue Cross cited cases 

rejecting arguments that a plan administrator waived an antiassignment provision by not asserting it before litigation. 
BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD 7

The district court agreed and dismissed Beverly Oaks’ 

complaint with leave to replead.

Beverly Oaks repleaded the ERISA claim and advanced 

again its argument that Blue Cross waived or was equitably 

estopped from asserting the anti-assignment clause as a basis 

to deny benefits when asserted for the first time in litigation. 

Blue Cross moved to dismiss and reasserted that the antiassignment provisions in the insurance plans barred the 

patient from assigning benefits to a provider such as Beverly 

Oaks and thus Beverly Oaks lacked standing to bring an 

ERISA denial of benefits claim. The district court found that 

the repleaded allegations lacked “any new facts sufficient to 

establish waiver or estoppel” and reaffirmed its conclusion 

that “when raising an [anti-assignment provision] to contest 

standing, it is not waived for failure to raise it during the 

claim administration process.” The district court reiterated 

that evidence of direct communications and payment do not 

show a clear and convincing waiver of the anti-assignment 

provision.5

Beverly Oaks’ appeal followed and we have jurisdiction 

under 28 U.S.C. § 1291.

II

We review de novo the district court’s order granting a 

motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 

2005). In conducting this review, we accept as true the 

pleaded factual allegations and “construe those facts in the 

5 The district court granted Beverly Oaks leave to amend only the 

claims based on the Teamsters Plan. Upon repleading and with Blue 

Cross moving to dismiss, the district court held that the language in the 

Teamsters Plan precluded a patient from assigning benefits.
8 BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD

light most favorable to the plaintiff.” Smith v. Pac. Props. 

and Dev. Corp., 358 F.3d 1097, 1099 (9th Cir. 2004). We 

may also “consider materials that are submitted with and 

attached to the [c]omplaint”; “judicial notice of matters of 

public record”; and “unattached evidence on which the 

complaint necessarily relies if: (1) the complaint refers to the 

document; (2) the document is central to the plaintiff’s 

claim; and (3) no party questions the authenticity of the 

document.” United States v. Corinthian Colls., 655 F.3d 

984, 998–99 (9th Cir. 2011) (internal quotation marks and 

citations omitted).

III

Beverly Oaks contends on appeal that the district court 

erred in finding as a matter of law that it failed to adequately 

plead that Blue Cross’ conduct supported a theory of waiver 

or that Blue Cross was equitably estopped from asserting the 

anti-assignment provision as a defense for the first time in 

litigation as a basis to deny benefits.6 We agree.

A

When making a claim determination under ERISA, “an 

administrator may not hold in reserve a known or reasonably 

knowable reason for denying a claim, and give that reason 

for the first time when the claimant challenges a benefits 

denial in court.” Spinedex Physical Therapy USA Inc. v. 

United Healthcare of Ariz., Inc., 770 F.3d 1282, 1296 (9th 

Cir. 2014) (“Spinedex”); Harlick v. Blue Shield of Cal., 

686 F.3d 699, 719 (9th Cir. 2012) (“A plan administrator 

may not fail to give a reason for a benefits denial during the 

6 Beverly Oaks does not challenge in this appeal the enforceability 

of the anti-assignment provisions.
BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD 9

administrative process and then raise that reason for the first 

time when the denial is challenged in federal court[.]”).

It is settled law that “health care providers are not 

‘beneficiaries’ within the meaning of ERISA’s enforcement 

provisions.” DB Healthcare, LLC v. Blue Cross Blue Shield 

of Ariz., Inc., 852 F.3d 868, 874 (9th Cir. 2017); 29 U.S.C. 

§ 1132(a)(1) (noting that only participants and beneficiaries 

have standing to bring a lawsuit). “[A] non-participant 

health care provider . . . cannot bring claims for benefits on 

its own behalf. It must do so derivatively, relying on its 

patients’ assignments of their benefits claims.” DB 

Healthcare, LLC, 852 F.3d at 874 (quoting Spinedex, 

770 F.3d at 1298).

“Anti-assignment clauses in ERISA health plans are 

valid and enforceable.” Spinedex, 770 F.3d at 1296 (citation 

omitted). Yet, a plan administrator can waive the right to 

enforce an anti-assignment provision. See id. at 1296–97 

(concluding that the defendant-claims administrator did not 

raise the anti-assignment provision during the administrative 

claim process because “there [wa]s no evidence that [the 

claims administrator] was aware, or should have been aware, 

during the administrative process that [the plaintiff-medical 

provider] was acting as its patients’ assignee”).

Waiver is “the intentional relinquishment of a known 

right.” Gordon v. Deloitte & Touche LLP Grp. Long Term 

Disability Plan, 749 F.3d 746, 752 (9th Cir. 2014) (citing 

Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 

1551, 1559 (9th Cir. 1991) (Waiver occurs when “a party 

intentionally relinquishes a right, or when that party’s acts 

are so inconsistent with an intent to enforce the right as to 

induce a reasonable belief that such right has been 

relinquished.”)). To show that Blue Cross waived the antiassignment provision that would otherwise foreclose 
10 BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD

Beverly Oaks from having statutory standing in this ERISA 

action, Beverly Oaks must plead sufficient facts that Blue 

Cross “was aware or should have been aware, during the 

administrative [claim] process that [Beverly Oaks] was 

acting as its patients’ assignee.” See Spinedex, 770 F.3d 

at 1297.

Here, Beverly Oaks pleaded adequately facts supporting 

waiver. On the claim form submitted to Blue Cross, Beverly 

Oaks indicated that it was acting as its patient’s assignee.7 

Blue Cross processed the claim form, denied in full or 

underpaid Beverly Oaks’ billed charges, and at no time 

during the administrative claim process did Blue Cross raise 

the anti-assignment provision as a basis to deny benefits. 

These allegations show plausibly that Blue Cross should 

have at least been aware that Beverly Oaks sought to collect 

plan benefits through a patient assignment because Beverly 

Oaks marked the appropriate box on the claim form 

indicating that it was pursuing plan benefits through a patient 

assignment. See Spinedex, 770 F.3d at 1297. The 

allegations also show plausibly that Blue Cross’ silence and 

payment was “so inconsistent with an intent to enforce” the 

anti-assignment clause as to “induce a reasonable belief that 

[the right to enforce the clause] ha[d] been relinquished.” 

See Intel Corp., 952 F.2d at 1559. Further, that Blue Cross 

“h[e]ld in reserve a known or reasonably knowable reason 

for denying a claim, and g[a]ve that reason for the first time 

when [Beverly Oaks] challenge[d] a benefits denial in court” 

supports the waiver allegations. See Spinedex, 770 F.3d at 

1296; Harlick, 686 F.3d at 720 (“ERISA and its 

implementing regulations are undermined where plan 

7 The claim form attached as an exhibit to the original Complaint 

and First Amended Complaint shows a “Y” in box 53, indicating that 

Beverly Oaks asserted its claim via a patient assignment of benefits.
BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD 11

administrators have available sufficient information to assert 

a basis for denial of benefits, but choose to hold that basis in 

reserve rather than communicate it to the beneficiary.” 

(internal quotation marks and citations omitted)).

The two unpublished decisions of our court upon which 

Blue Cross relies, Brand Tarzana Surgical Institute, Inc. v. 

International Longshore & Warehouse Union-Pacific 

Maritime Ass’n Welfare Plan, 706 F. App’x 442 (9th Cir. 

2017) (“Brand Tarzana”) and Eden Surgical Center v. 

Cognizant Technology Solutions Corp., 720 F. App’x 862 

(9th Cir. 2018) (“Eden Surgical Center”), are unpersuasive. 

Those decisions are not binding on us as precedent, and, as 

such, cannot supersede our holdings in Spinedex and 

Harlick, which are binding. Moreover, those decisions do 

not ultimately support the position advocated by Blue Cross 

here.

In Brand Tarzana, we stated that an “anti-assignment 

provision . . . is a litigation defense, not a substantive basis 

for claim denial.” 706 F. App’x at 443. That statement, 

however, does not undermine Spinedex’s holding that an 

insurer or claim administrator may waive the ability to raise 

an anti-assignment provision as a defense when they take 

action inconsistent with that provision or are aware that the 

claimant is acting as an assignee. See 770 F.3d at 1296. 

Indeed, Brand Tarzana faithfully and accurately applied 

Spinedex. See 706 F. App’x at 443–44 (“There is no 

evidence that the Plan or its vendors took action inconsistent 

with the anti-assignment provision or that they were aware, 

or should have been aware, that Brand was acting as an 

assignee.”) (citing Spinedex, 770 F.3d at 1297).

Eden Surgical Center is similarly unavailing. The court 

there held that the plaintiff’s waiver argument failed because 

the “[d]efendants raised the anti-assignment provision after 
12 BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD

the suit commenced to contest [the plaintiff]’s standing to 

sue, not as a reason to deny benefits.” Eden Surgical Center, 

720 F. App’x at 863. That holding also does not conflict 

with Spinedex.

Absent from Eden Surgical Center and Brand Tarzana 

is a rationale for condoning an insurer or plan 

administrator’s course of conduct in failing to raise the antiassignment provision during the administrative claims 

process and then later asserting that provision as a “litigation 

defense” to avoid payment of benefits. Further, relying on 

Eden Surgical Center and Brand Tarzana to accept the 

“litigation defense” as a basis to deny waiver leaves an 

insurer or plan administrator unaccountable for prior 

conduct contrary to its litigation position.

The district court erred in finding waiver inapplicable as 

a matter of law. Under Spinedex, Beverly Oaks alleged 

plausibly that Blue Cross waived the anti-assignment 

provisions in the Teamsters, Williams Lea, and Woodward 

Plans. Blue Cross thus cannot raise the anti-assignment 

provision for the first time in litigation when Blue Cross held 

that provision in reserve as a reason to deny benefits.

B

Beverly Oaks also alleged facts that showed plausibly 

that Blue Cross made an actionable misrepresentation and 

was thus equitably estopped from raising the antiassignment provisions as a litigation defense contrary to its 

prior conduct. To be sure, Beverly Oaks has actually 

asserted only a single claim, for failure to pay ERISA plan 

benefits. It has argued alternative legal theories to support 

that claim, namely waiver and equitable estoppel, but both 

are offered to support the same claim, so our conclusion 

regarding the waiver argument is enough to reinstate this 
BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD 13

action. Nonetheless, in case it might matter as the case 

proceeds, Beverly Oaks should be allowed to proceed with 

its estoppel argument as well, based on its pleading.

Equitable estoppel “holds the fiduciary to what it had 

promised and operates to place the person entitled to its 

benefit in the same position he would have been in had the 

representations been true.” Gabriel v. Alaska Elec. Pension 

Fund, 773 F.3d 945, 955 (9th Cir. 2014) (internal quotation 

marks and citations omitted). Under this theory of relief, a 

plaintiff must allege the traditional equitable estoppel 

requirements: “(1) the party to be estopped must know the 

facts; (2) he must intend that his conduct shall be acted on or 

must so act that the party asserting the estoppel has a right to 

believe it is so intended; (3) the latter must be ignorant of the 

true facts; and (4) he must rely on the former’s conduct to 

his injury.” Id. (citations omitted). In the ERISA context, 

the plaintiff must allege three additional requirements: 

“(1) extraordinary circumstances; (2) that the provisions of 

the plan at issue were ambiguous such that reasonable 

persons could disagree as to their meaning or effect; and 

(3) that the representations made about the plan were an 

interpretation of the plan, not an amendment or modification 

of the plan.” Id. at 957 (internal quotation marks and 

citations omitted). “[E]xtraordinary circumstances” in this 

context may be established by alleging facts that show a 

defendant made a promise that they reasonably should have 

expected to induce action or forbearance on the plaintiff’s 

part, combined with a showing of repeated 

misrepresentations over time. Id. (internal citations and 

quotation marks omitted).

Drawing all reasonable inferences in Beverly Oaks’ 

favor, it is plausible that (1) Blue Cross knew about the antiassignment provisions; (2) Beverly Oaks had a basis for 
14 BEVERLY OAKS V. BLUE CROSS & BLUE SHIELD

believing that Blue Cross intended to provide benefits for the 

claimed procedures; (3) Beverly Oaks was unaware of the 

anti-assignment provisions; and (4) Beverly Oaks relied on 

Blue Cross’ acquiescence of the patients’ assignment of 

benefits to its detriment. See id. at 955–57. Beverly Oaks 

has also adequately pleaded facts to satisfy the three 

equitable estoppel requirements specific to the ERISA 

context. Beverly Oaks has adequately pleaded extraordinary 

circumstances. It pleaded that Blue Cross made it a promise 

(“[I]n each telephone communication [Blue Cross’] 

representative advised [Beverly Oaks’] representative that 

[Beverly Oaks] was eligible to receive payment as an out of 

network provider[.]”), that was reasonable to expect to, and 

did, induce Beverly Oaks into action (“If [Blue Cross’] 

representatives would have stated in any of these telephone 

communications that [Blue Cross] intended to rely upon an 

anti-assignment clause as a basis to bar payment, [Beverly 

Oaks] would not have performed surgery center facility 

services for the ERISA Plan in question, or any of its 

members or their dependents.”). These misrepresentations 

continued over time throughout the administrative review 

process. Beverly Oaks pleaded that the anti-assignment 

provisions at issue were ambiguous. It pleaded that the 

representations Blue Cross made about the plan were 

interpretations of the plan and not amendments or 

modifications. That was sufficient.

IV

Accordingly, we reverse and remand.

REVERSED and REMANDED.