NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IV SOLUTIONS, INC., a California 

corporation, 

Plaintiff-Appellant, 

 v. 

PACIFICARE LIFE & HEALTH 

INSURANCE CO., an Indiana corporation; 

DOES, 1-30, inclusive, 

Defendants-Appellees.

No. 17-56609 

D.C. No. 

2:16-cv-07153-SJO-MRW 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted January 8, 2020

Pasadena, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District 

Judge.

IV Solutions, Inc. (“IVS”) appeals the district court’s grant of summary 

judgment on its breach of contract claim in favor of PacifiCare Life & Health 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

FILED

FEB 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Insurance Co. (“PacifiCare”). IVS also appeals the district court’s denial of leave 

to amend its complaint. We have jurisdiction under 28 U.S.C. § 1291, and we 

affirm. As the parties are familiar with the facts, we do not recount them here.

We review de novo a district court’s grant of summary judgment. See

Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018). Summary 

judgment is appropriate when, viewing the evidence in the light most favorable to 

the nonmoving party, “there is no genuine issue of material fact to be determined at 

trial.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). 

We review a district court’s denial of leave to amend for abuse of discretion. See

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

IVS brought a breach of contract claim, alleging that, based on a third-party 

beneficiary theory, PacifiCare had a contractual duty to pay IVS for services that 

IVS provided to PacifiCare’s insured. The district court determined that IVS’s 

breach of contract claim for all but one of its claims for payment (i.e., Claims ‘215 

and ‘245–‘252) was barred by the four-year statute of limitations. See Cal. Civ. 

Proc. Code § 337(a). The parties agree that the four-year statute of limitations 

applies, but they disagree over when it started to run.

The limitations period started running when PacifiCare unequivocally 

denied IVS’s claims for payment. See Vishva Dev, M.D., Inc. v. Blue Shield of 

Cal. Life & Health Ins. Co., 207 Cal. Rptr. 3d 185, 189 (Ct. App. 2016). We agree 
3 

with the district court that PacifiCare’s Explanation of Benefits (“EOBs”) for 

Claims ‘215 and ‘245–‘252 were unequivocal denials. The EOBs contained clear 

language communicating that PacifiCare was denying the claims for payment, and 

nothing in the EOBs suggested that the denials were conditional or tentative. We 

therefore hold that IVS’s breach of contract claim based on Claims ‘215 and ‘245–

‘252 is time-barred because the EOBs for those claims were unequivocal denials,

and IVS filed suit more than four years after the date of the last EOB. 

IVS’s arguments to the contrary are unavailing. First, IVS argues that the 

EOBs were not unequivocal denials because they instructed IVS to “review the 

procedure codes” and “notify [PacifiCare] if any unusual treatments were 

performed or if there is additional information clarifying the services and/or 

charges.” But as the district court correctly noted, PacifiCare did not condition its 

denial of IVS’s claims on the receipt of new information, and its willingness to 

consider such information did not render its denial equivocal. See Vishva Dev, 207 

Cal. Rptr. 3d at 190. Second, IVS argues that the district court failed to consider 

its equitable tolling argument based on PacifiCare’s communications that it was 

reprocessing the claims. But the district court did consider this argument, and it 

determined that, even if the limitations period were equitably tolled for the five 

months during which PacifiCare was reprocessing the claims (from August 2012 to 

January 2013), the breach of contract claim based on Claims ‘215 and ‘245–‘252
4 

would still be barred. IVS fails to show that this conclusion was erroneous. Third, 

IVS points out that in ruling on the motion to dismiss, the district court reached a 

contrary result—it determined that the EOBs were not unequivocal denials. But 

other than pointing out this fact, IVS does not present any legal authority or 

argument showing that the prior decision binds the district court or this court.

We also hold that the district court correctly determined that equitable 

estoppel does not apply to IVS’s time-barred claims. Under California law, 

equitable estoppel does not apply when a plaintiff has ample time to sue after the 

conduct that has induced it to delay its suit ends. See, e.g., Mills v. Forestex Co., 

134 Cal. Rptr. 2d 273, 298 (Ct. App. 2003). PacifiCare’s conduct that allegedly 

induced IVS to delay its suit ceased about three years before the limitations period

lapsed. Three years was more than ample time for IVS to sue, and therefore

equitable estoppel does not apply. See Lobrovich v. Georgison, 301 P.2d 460, 464 

(Cal. Ct. App. 1956).

As for IVS’s breach of contract claim for its one remaining claim for 

payment (i.e., Claim ‘185), the district court determined that the claim failed 

because IVS was not a third-party beneficiary under the operative 2007 contract. 

A third party may enforce a contract if he is an intended beneficiary of the 

contract. See Cal. Civ. Code § 1559. “A third party may qualify as a beneficiary 

under a contract where the contracting parties must have intended to benefit that 
5 

third party and such intent appears on the terms of the contract.” Jones v. Aetna 

Cas. & Sur. Co., 33 Cal. Rptr. 2d 291, 295 (Ct. App. 1994).

We agree with the district court that, under the express terms of the 2007 

contract, IVS was not an intended third-party beneficiary. IVS, however, argues 

that there is a material factual dispute over whether the operative agreement is the

2007 contract or a 2010 contract. In reviewing this argument, we are limited to the 

summary judgment record presented to the district court. See Lippi v. City Bank, 

955 F.2d 599, 604 (9th Cir. 1992). 

PacifiCare submitted evidence supporting that the operative agreement was 

the 2007 contract. In its opposition to summary judgment, IVS mentioned the 

existence of the 2010 contract and provided a heavily redacted copy of the 2010 

contract, but it failed to explain why this was the operative agreement and how this 

agreement affected its claims. This was insufficient to create a genuine factual 

dispute.1 See Hernandez, 343 F.3d at 1112 (stating that nonmoving party “cannot 

defeat summary judgment with allegations in the complaint, or with unsupported 

conjecture or conclusory statements”). Thus, the district court correctly 

1 After oral argument, we ordered supplemental briefing on the applicability 

of the 2010 contract. The parties’ supplemental briefs and supporting documents

reveal that PacifiCare had produced a largely unredacted copy of the 2010 contract 

days before it moved for summary judgment. IVS failed to review the document 

production before filing its opposition. But even after IVS realized that it had a 

copy of the largely unredacted 2010 contract, it did not seek any relief from the 

district court.
6 

determined that IVS’s breach of contract claim as to Claim ‘185 fails because it 

was not an intended third-party beneficiary under the 2007 contract.

 Finally, IVS argues that the district court abused its discretion by denying it 

leave to amend its complaint. But we agree with the district court that IVS’s 

proposed amendments would not save its time-barred claims. The district court 

also found that IVS’s proposed amendments would not save its breach of contract 

claim based on Claim ‘185, and IVS does not dispute that finding on appeal. 

Because IVS’s proposed amendments would be futile, the district court did not 

abuse its discretion. See Bonin, 59 F.3d at 845.

AFFIRMED.2

2 We GRANT PacifiCare’s motion to seal Exhibits 2 and 3 attached to the 

Declaration of Rebecca Paradise. Dkt. No. 51. We also GRANT IVS’s request to 

take judicial notice of Exhibits 2 and 3 attached to the Declaration of Eric 

Levinrad, Dkt. No. 56, which are the corporate Statements of Information for 

Viant, Inc. and Viant Payment Systems, Inc., filed with the California Secretary of 

State. See Fed. R. Evid. 201.