EXHIBIT 24
EXHIBIT 25
EXHIBIT 26
EXHIBIT 27
EXHIBIT 28
EXHIBIT 29
EXHIBIT 30
EXHIBIT 31
ENDORSED
FILED
Heather Gibson (SBN 240938)
Kevin K. Panahi (SBN 280630)
Law Offices of Heather E. Gibson L.L.P
20398 Blauer Drive
Saratoga, CA 95070
(408) 359-1035
(408) 3 59-1 102 (fax)
legal@basurgical.com
Attorneys for Plaintiff,
FOREST AMBULATORY SURGICAL ASSOCIATES, L.P.
zotz HAR 23 Pil 5: 06
Davidfi,
dk4C4ull
DePutiael
Agmbas
IN THE SUPERIOR COURT OF THE'STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DOWNTOWN SUPERIOR COURT
LIMITED JURISDICTION
”%
FOREST AMBULATORY SURGICAL) Case No. 12CV21
ASSOCIATES, L.P. DBA FOREST)
SURGERY CENTER L.P. (A Limited)) PLAINTIFF FOREST AMBULATORY
SURGICAL ASSOCIATES L.P.'S
Partnership),
COMPLAINT FOR DAMAGES AGAINST
DEFENDANT AETNA LIFE INSURANCE
Plaintiff
COMPANY
V.
AETNA LIFE INSURANCE COMPANY,
and DOES 1 through 25, inclusive,
Defendants
1) Breach of Contract
2) California Business & Professions
Code § 17200 et seq.
3) Negligent Misrepresentation
4) Promissory Estoppel
5) Equitable Estoppel.
DEMAND FOR JURY TRIAL
DEMAND OVER $10,000
PLAINTIFF'S COMPLAINT FOR DAMAGES
INTRODUCTION
1. This is an action for Breach of Contract, for violations of California Business an
Professions Code § 17200 et seq., for Negligent Misrepresentation, Promisso
Estoppel, and Equitable Estoppel against Defendant AETNA LIFE INSURANC
COMPANY. ("AETNA").
2. By the allegations set forth herein, Plaintiff FOREST AMBULATORY SURGICA
ASSOCIATES L.P. DBA FOREST SURGERY CENTER L.P., ("FOREST"), seek
damages for the difference between the amount that AETNA paid FOREST for surgica
procedures performed, and the amount billed by FOREST for those surgical procedure
in addition to other damages, according to proof at trial.
3. Pursuant to AETNA'S agreement with FOREST, AETNA was required to pay 60% o
the cost of approved surgical procedures for out-of-contract providers, such
FOREST.
4. Plaintiff FOREST is now pursuing payment on its own behalf only, for the underpai
surgery by pursuing each Cause of Action against AETNA stated below.
5. Defendant AETNA failed to make full payment to FOREST, and instead paid onl
$14,992.50 of the billed $73,860.00, or approximately 20% rather than the 60')/
promised by AETNA.
6. Plaintiff FOREST is ignorant of the true names and capacities of defendants sue
herein as DOES 1-25, inclusive, and therefore sues defendants by such fictitious names.
Plaintiff FOREST will amend this complaint to allege their true names and capacitie
when ascertained.
7. Plaintiff FOREST is informed and believes and thereon alleges that, at all times herei
mentioned, each of the defendants sued herein was the agent and employee of each o
the remaining defendants and was at all times acting within the purpose and scope o
such agency and employment.
///
///
PLAINTIFF'S COMPLAINT FOR DAMAGES
-2
JURISDICTION AND VENUE
8. This action arises under California law and the amount in controversy exceed
$10,000.00, but is less than $25,000.00 and therefore venue in an limited jurisdiction
appropriate.
9. Jurisdiction is proper pursuant to Cal. Civ. Proc. Code §§ 410.10, 410.50 and 1060.
10.Venue is proper in this judicial district pursuant to Cal. Civ. Proc. Code § 395.
11.This case is not pre-empted by Federal ERISA law, because Plaintiff has alleged direc
causes of action under Califomia state law against its patient's insurer, AETNA, fo
breach of contract, negligent misrepresentation, promissory estoppel, breach of contrac
and equitable estoppel. Kurtz, Richard, Wilson & Co. Inc. v. Insurance Communicator
Marketing Corp. (1993) 12 Cal.App.4th 1249.)
THE PARTIES
12.Plaintiff, FOREST, is, and at all times herein mentioned was, a limited partnership
organized and existing under the laws of the State of California with its principle place
of business located at 2110 Forest Ave Suite 2, in the City of San Jose, County of Santa
Clara.
13.Plaintiff is informed and believes that Defendant AETNA both advertises for, and
conducts business on a continuous basis within the State of California, County of Santa
Clara.
14.The individual upon whom the surgery at issue was performed, identified by AETNA
Member ID W172789787 (in compliance with the Federal Health Insurance Portability
and Accountability Act (HIPAA)) resides within the County of Santa Clara in the State
of California.
15.The surgery upon which this lawsuit is predicated was performed at the Forest Surgery
Center located in San Jose, California, which is managed by the Bay Area Surgical
Management, LLC., located in Santa Clara County California.
///
///
PLAINTIFF'S COMPLAINT FOR DAMAGES
-3
FACTUAL ALLEGATIONS
16.Forest Surgery Center is an ambulatory surgery facility located in San Jose, California.
17. One of FOREST's patients, (identified by AETNA Member ID No. W172789787 and
AETNA Claim ID.: EQAASFQ0K00 in order to preserve the patient's privacy in
compliance with HIPPA laws) hereafter referred to as "PATIENT" was scheduled for
surgery on July 8, 2011 at Forest Surgery Center. Dr. Nicholas Abidi and Dr. Robert
Bruce were scheduled to perform the surgery.
18.The surgery performed by Dr. Abidi and Dr. Bruce consisted of: secondary ankle
ligament repair; the implantation of a prosthetic device; secondary repair of a lower leg
tendon; and shoulder arthroscopy with rotator cuff repair; identified by HIPPS and
Current Procedural Terminology (CPT) Codes: 27698, 27691, 29827, L8699.
19. The PATIENT was insured by AETNA.
20. Prior to the PATIENT's scheduled surgery, on July 7, 2011, Gladys Martin a FOREST
employee verified with an employee of AETNA via phone that pre-authorization was
not necessary for the surgery the PATIENT was scheduled to undergo. The same
AETNA employee then confirmed that the PATIENT was covered under AETNA
health insurance, verified the terms of the PATIENT's insurance coverage, and
provided Gladys Martin with reference number 778203951. (Verification of this
preauthorization is attached hereto as Exhibit A.)
21. In addition, FOREST confirmed that the PATIENT was insured by AETNA online, in
the provider self-service-eligibility and benefits details portion of AETNA's web page.
This online verification further verified that AETNA would cover the PATIENT for at
least 60% of the billed price of procedures on the PATIENT by FOREST, an out of
network provider.
22. On July 8, 2011, Dr. Abidi and Dr. Bruce performed the PATIENT's surgery, as
scheduled, and exactly as described to the AETNA agent who stated that no preauthorization was necessary for the above-stated planned procedures.
PLAINTIFF'S COMPLAINT FOR DAMAGES
-4
23. Shortly following the PATIENT's surgery, FOREST billed AETNA for the
PATIENT's procedure, however, AETNA failed to tender the amount due.
24. Thereafter, FOREST contacted AETNA via written correspondence, sent on August 23,
2011, informing AETNA of the underpaid claim, and requesting that the claim be paid
as promised.
25. Thereafter, FOREST contacted AETNA again via written correspondence, sent on
October 14, 2011 informing AETNA of the underpaid claim, requesting that the claim
be paid according to the PATIENT's insurance benefits as promised, and informing it
of AETNA's intent to file suit in the event that no further payment was made within
fourteen (14) days of AETNA's receipt of FOREST's correspondence.
26. FOREST continued to attempt to contact AETNA via phone during the month of
October and November, and made contact with AETNA's agents who were unable to
state whether any further payment would be made.
27. To date, AETNA has refused to pay the contracted price for the PATIENT's surgical
procedures, therefore FOREST has brought this instant action to recover the amount it
is owed.
FIRST CAUSE OF ACTION
(Breach of Contract Against Defendant AETNA)
28. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
29. On information and belief, on or about January 1, 2011, the PATIENT and Defendant
AETNA, entered into a written contract whereby AETNA agreed to tender payment in
the amount of 60% of the billed price for qualified surgical procedures.
30. Because FOREST was an out-of-network provider at the time that the PATIENT's
surgery was performed, this agreement extended to those procedures performed at
Forest Surgery Center.
31. Prior to performing surgery on PATLENT, FOREST contacted AETNA via phone in
order to verify that the scheduled surgical procedures would be considered "qualified"
PLA1NTIFF'S COMPLA1NT FOR DAMAGES
-5
and therefore covered by AETNA. AETNA verified the PATIENT was covered, and
that no pre-authorization was necessary for the scheduled procedures.
32. Accordingly, Plaintiff performed medically necessary surgery on the PATIENT, an
individual insured by AETNA.
33. Nevertheless, Defendant AETNA breached its contract as described in Irg 20, 21, 22,
and 23 of the instant complaint by failing and refusing to perform in good faith its
promise to honor the contracted agreement and to tender 60% of the billed amount or
$73,860.00 for services rendered.
34. As a result of the breach of Defendant AETNA, in the obligations pursuant to the
contract as described herein for the entire sum of $49,316.00 less the allowed amount
of $21,202.50, or $23,113.50 is now due, owing and unpaid; Plaintiff has made
numerous demands upon Defendant for payment, but no further payment has been
made.
35. To date, Defendant AETNA has failed and refused, and continues to fail and refuse to
tender full payment pursuant to the terms of its contract as described herein for the
$73,860.00 billed for the procedures at issue by Plaintiff FOREST.
36. Defendant has therefore breached its contract with Plaintiff, who has been damaged
thereby in the sum of the difference between the amount allowed by AETNA, and the
amount outstanding, or $23,113.50 plus interest at the legal rate from and after the date
due according to the proof, plus additional damages including the costs of this lawsuit
as stated below according to proof.
SECOND CAUSE OF ACTION
(California Business & Professions Code 17200 et. seq. Against Defendant AETNA)
37. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
38. The Unfair Competition Act (UCA) California Business and Professions Code 17200 et
seq., prohibits any "unlawful, unfair or fraudulent business act or practices..."
39. In the instant case, AETNA unlawfully refused to honor the terms of its contract
described herein in violation of section §235(2) of the Restatement Second of
PLAINTIFF'S COMPLAINT FOR DAMAGES
-6
Contracts, and thus, giving rise to FOREST's claim to damages pursuant to California
Civil Code section §3300 et seq.
40. Defendant AETNA, further illegally attempted to persuade Plaintiff into agreeing to
take less than the contracted amount for services rendered, on numerous occasions, in a
bad faith attempt at settlement, in violation of California Insurance code § 790.03 and
also in contravention of California Business and Professions code §17200. et seq.
41. Defendant AETNA did nothing to correct the apparent illegalities in attempting to
persuade Plaintiff FOREST to settle for a lower amount than what it owed, and instead,
verified those illegalities by doing nothing in response to FOREST's repeated requests
for appropriate payment.
42. Further, there has been no response from DEFENDANT to Plaintiff's written demand
sent on October 14, 2011, and therefore, AETNA has further violated California Ins.
Code §790.03 by failing to respond within the applicable (30) day time period.
43. By engaging in unlawful conduct pursuant to California Civil Code §3300 that violates
the parameters set forth in the Restatement Second of Contracts §235(2), by making
misrepresentations with respect to authorization given for the PATIENT's surgical
procedures and the percentage of the authorized amount that would be paid, and for
violations of insurance code §790.03, AETNA is engaging in unlawful business
practices and is in violation of Business and Professions code §17200 et seq.
THIRD CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION
(Against Defendant AETNA)
44. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
45. Defendant AETNA owed a duty to Plaintiff FOREST to give it accurate statements of
fact with respect to the pre-authorization of surgery scheduled to be performed on the
FOREST PATIENT insured by AETNA.
PLAINTIFF'S COMPLAINT FOR DAMAGES
-
7
46. Defendant AETNA made an incorrect statement to FOREST through its agent, that "no
pre-authorization was necessary" for the surgery that the PATIENT was scheduled to
undergo on July 8, 2011.
47. The AETNA employee and agent who made this statement either knew, or should have
known, that making this statement to the FOREST employee who had called for preauthorization would cause that FOREST employee to rely on that statement and go
forward with the surgery with the understanding that AETNA did not need to expressly
authorize it.
48. FOREST justifiably relied on AETNA's misrepresentations as set forth above, and
went forward with the procedure, reasonably expecting to be reimbursed at the very
least in the amount of 60% of the billed price of the surgery pursuant to the express
statements from AETNA, that out-of-network providers, such as FOREST would be
paid at least 60% of the billed amount.
49. In the event that the AETNA representative had told FOREST that it would not
authorize its insured's scheduled procedure for any reason, or refused to give preauthorization for any reason, then FOREST would not have gone forward with the
PATIENT's surgery as scheduled.
50. As a direct and proximate cause of the misrepresentation made to FOREST, FOREST
went forward with the PATIENT's surgery, and payment was not made at the
contracted for amount, and therefore FOREST suffered damages as a result of its
reliance upon AETNA's misleading and incorrect statements.
51. As a direct and proximate cause of FOREST's justifiable reliance upon AETNA's
misrepresentations, FOREST suffered loss according to proof at trial.
FOURTH CAUSE OF ACTION FOR PROMISSORY ESTOPPEL
(Against Defendant AETNA)
52. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
PLAINTIFF'S COMPLAINT FOR DAMAGES
-
8
53. Defendant AETNA made a clear and definite promise to FOREST when FOREST
contacted AETNA, gave AETNA specific information regarding procedures to be
performed, prior to the PATIENT's surgery, and requested verification that either preauthorization would be given to FOREST, or that no-preauthorization was necessary
for the procedures stated.
54. AETNA responded to FOREST's request by expressly stating that "no preauthorization was necessary" for the procedure codes given. Therefore, FOREST, as an
out-of-network provider would be paid for at least 60% of the billed amount for the
PATIENT's procedure. (Detailed in Exhibit A attached hereto). Therefore, FOREST
went forward with the PATIENT's scheduled surgery in reliance on AETNA's
statement.
55. AETNA made the above-mentioned promise that no pre-authorization was necessary
for the PATIENT's scheduled surgery with the expectation that FOREST would rely on
that promise, and would go forward with the PATIENT's surgery as scheduled.
56. It was foreseeable that FOREST would proceed with the PATIENT's surgery, as
scheduled, based on AETNA's assurance that "no pre-authorization was necessary"
prior to the time that the surgery was performed.
57. FOREST reasonably relied upon AETNA's promise that no pre-authorization was
required, and given for the PATIENT's surgery, and therefore went forward with the
PATIENT's surgery as scheduled.
58. FOREST suffered a detriment of a definite and substantial nature as a -result of its
reasonable reliance upon AETNA's above stated promise in that it was not reimbursed
at the contracted rate for the services rendered to the PATIENT, and in fact, was paid
less than 21% of the cost of the billed surgical procedures performed.
FIFTH CAUSE OF ACTION FOR EOUITABLE ESTOPPEL
(Against Defendant AETNA)
59. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
PLAINT1FF'S COMPLA1NT FOR DAMAGES
-9
60. AETNA had been advised, prior to the date of the PATIENT's surgery, that FOREST
had scheduled surgery for that PATIENT, and had expressly explained to AETNA wha
that surgery would consist of, therefore AETNA had been advised of all relevant facts
prior to the PATIENT's surgery.
61. AETNA was aware that, and intended for, FOREST to proceed with the PATLENT's
surgery, as scheduled, and AETNA's intentions were supported by its refusal to explain
to FOREST that it would not cover any portion of the PATIENT's procedure at the
agreed upon contracted rate of 60% or more of the billed procedure's price. As such,
AETNA's actions and omissions were reckless and malicious.
62. FOREST was ignorant of the true facts, specifically that AETNA had decided not to
cover the PATIENT's scheduled surgical procedure at the rate of 60% or more.
63. FOREST relied, to its detriment upon AETNA's statement that, "no pre-authorization
was necessary" in moving forward with the PATIENT's surgical procedure as
scheduled, instead of cancelling it. FOREST therefore lost a significant amount of
money, in having to complete the PATIENT's surgery, pay for all of the cost and labor
associated with that surgery, and then to be paid less than 21% of the billed price of tha
surgery. Consequently, FOREST has changed its position for the worse in its good
faith reliance upon AETNA's negligent misrepresentations with respect to payment for
the PATIENT's procedure.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for declaratory relief and judgment as follows:
1)
That defendant AETNA must pay to plaintiff the amount of $23,113.5
plus interest at the legal rate accruing from the date of breach;
2)
Pre-judgment and post-judgment interest as allowed by law;
3)
Costs According to proof; and
4)
Such other and further legal and equitable relief as the Court deems jus
and proper.
///
PLAINTIFF'S COMPLAINT FOR DAMAGES
- 10
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury.
///
///
RESPECTFULLY SUBMITTED,
DATED: March 23, 2011
LAW OFFICES OF HEATHER E. GIBSON, LLP.
GIBSON
KEVIN K. PANAHI
Attomeys for Plaintiff Forest Ambulatory
Surgical Associates L.P. DBA Forest
Surgery Center L.P.
PLAINTIFF'S COMPLAINT FOR DAMAGES
- II
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
EXHIBIT A
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAMITIFF'S COMPLAINT FOR DAMAGES
-
12
No. 1915
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ATTACHMENT CV•501 2
CIVIL LAWSUIT NOTICE
CASE NUMBER:
Superlor Court df California, County of Santa Clara
191 N. First St., San Jose, CA 95113
112CV22) 3 28
PLEASE READ THIS ENTIRE FORM
PLAINTIFF (the person suing): Within 60 days after filing the lawsuit, you must serve each Defendant with the Complaint,
Summons, an Altemative Dispute Resolution (ADR) Information Sheet, and a copy of this Civil Lawsuit Notice, and you must file
written proof of such service.
DEFENDANT (The person sued): You must do each of the following to protect your rights:
1.
2.
3.
You must file a written response to the Comp/aint, using the proper legal form or format, in the Clerk's Office of the
Court, within 30 days of the date you were served with the Summons and Complaint
You must serve by mail a copy of your written response on the Plaintiffs attorney or on the Plaintiff if Plaintiff has no
attorney (to "serve by mail" means to have an adult other than yourself mail a copy); and
You must attend the first Case Management Conference.
Warning: lf you, as the Defendant, do not follow these instructions,
you may automatically lose this case.
RULES AND FORMS: You must follow the California Rules of Court and the Superior Court of California, County of Santa Clara
Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive forms, free of charge, from
the Self-Help Center at 99 Notre Dame Avenue, San Jose (408-882-2900 x-2926), www.scselfservice.orq (Select "Civin or from:
•
•
State Rules and Judicial Council Forms: www.courtinfo.ca.00v/forms and www.courtinfo.ca.qov/rules
Local Rules and Forms: htto://www.sccsuperiorcourt.orq/civiltrule1toc.htm
CASE MANAGEMENT CONFERENCE (CMC): You must meet with the other parties and discuss the case, in person or by
telephone, at least 30 calendar days before the CMC. You must also fill out, file and serve a Case Management Statement
(Judicial Council form CM-110) at least 15 calendar days before the CMC.
You or your attomey must appear at the CMC. You may ask to appear by telephone — see Local Civil Rule 8.
9
Your Case Management Judge is: Honorable Mark Pierce Department: The
CMC is scheduled for: (Completed by Clerk of Court)
1 2012 Time:
Date: 1:30 pro in Department:
9
The next CMC is scheduled for: (Completed by party if the l st CMC was continued or has passed)
Date:
Time: in Department:
ALTERNATIVE DISPUTE RESOLUTION (ADR): If all parties have appeared and filed a completed ADR Stipulation Form (local
.form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference.
Visit the Court's website at www.sccsuperiorcourt.oroicivil/ADR/ or call the ADR Administrator (408-882-2100 x-2530) for a list of
ADR providers and their qualifications, services, and fees.
WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court.
Forrn CV-5012 REV 7101108
CIVIL LAWSUIT NOTICE
Page 1 of 1
•
p
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
ALTERNATIVE DISPUTE RESOLUTION
INFORMATION SHEET / CIVIL DIVISION
Many cases can be resolved to the satisfaction of all parties without the necessity of traditional litigation, which can be expensive,
time consuming, and stressful. The Court finds that it is in the best interests of the parties that they participate in alternatives to
traditional litigation, including arbitration, mcdiation, neutral evaluation, special masters and referees, and settlement conferences.
Therefore, all matters shall be referred to an appropriate form of Alternative Dispute Resolution (ADR) before they are set for trial,
unless there is good cause to dispense with the ADR requirement.
What is ADR7
ADR is the general territ Iota wide variety of dispute resolution processes that are alternatives to litigation. Types of ADR
processes include mediation, arbitration, neutral evaluation, special masters and referees, and settlement conferences, among others
(urn is.
st ;17r
if
the
of choosing ADR instead of ihiganon?
ADR can have a number of advantages over litigation:
< ADR can save tune. A dispute can be resolved in a matter of months, or even weeks, while litigation can take years.
< ADR can tare money. Attorney's fees, court costs, and expen lees can be reduced or avoided altogether.
< AD It provides more participation. Parties have more opponunitics with ADR to express their interests and concerns, instead of
focusing exclusively on legal rights.
< A.Dft provides more control and flexibility. Parties can choose the ADR process that is most likel to bring a satisfactory
resolution to their dispute.
< ADR can reduce stress. ADR encourages cooperation and communication, while discouraging the adversarial attnospherc of
litigation. Surveys of parties who have participated in an ADR process have found much greater satisfaction than with parties who
have gone through
Whot arc (Inc main forms 0/ AD!? offered by the Court?
< Mediation is an infonnal, confidential, flexible and non . binding process m the mediator helps thc panics-to understand the
interests of everyone involved, and their practical and legal choices. The mediator helps the parties to communicate better,
explorc legal and practical settlement options, and reach an acceptable solution of the problern. The mediator does not
decide thc solution to the dispute; the parties do.
< Mediation may be appropriate when:
< The parties want a non-adversary procedure
< The parties have a continuing business or personal relationship
< Communication problems are interfering with a resolution
<.There is an emotional element involved
<The parties are interested in an injunction, consent decree, or other form of equitable relief
< Neutral evaluation, sometimes called "Early Neutral Evaluation" or "ENE", is an informal process in which the evaluator, an
experienced neutral lawyer, hears a compact presentation of both sides of the case, gives a non-binding assessment of the
strengths and weaknesses on each side, and predicts the likely outcome. The evaluator can help parties to identify issucs,
prepare stipulations, and draft discovery plans. The parties may use the neutral' s evaluation to discuss settlement.
Neutral evaluation may be appropriate when:
< The parties are far apart in their view of the law or value of the case
< The case involves a technical issue in which the evaluator has expertise
< Case planning assistance would be helpful and would save legal fees and costs
< The parties are interested in an injunction, consent decree, or other form of equitable relief
ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET/ CIVIL DIVISION
CV•5003 REV 6/08
CM- 1
FOR COURT USE ONLY
ATTORKY 013_PABTy WTHOUT ATT_O_RNEY (Name, State Bar number, and address):
Heather E
E. Gibson, 240938
—
Kevin K. Panalii, 280630
20398 Blauer Drive
Saratoga, CA 95070
TELEPHONE NO.:
408.359.1035
FAX NO.:
-ENOORSED
•
FILED
408.359.1038
Al"TORNEY FOR (Name):
SUPERIOR COURT OF CALIFORNIA, COUN'TY OF
STREET ADDRESS:
2011 MAR 23 PM 5 : 06
191 N. First Street
MAILING ADDRESS:
CITY AND ZIP CODE:
BRANCH NAME:
Davidnupio..1i
4 .,:;:,:vorcoult
San Jose 95113
Down Town Superior
w
CASE NAME:
DeMaelk
Forest Surgical L.P. v. AETNA LIFE RsISURANCE COMPANY
CIVIL CASE COVER SHEET
Unlimited
i Limited
El (Amount
CASE NUMBER:
Complex Case DesIgnation
1 /
Joinder
Counter
JUDGE:
Filed with first appearance by defendant
demanded
demanded is
DEPT:
exceeds $25,000)
$25,000 or less)
(Cal. Rules of Court, rule 3.402)
Items 1-6 below must be completed (see instructions on page 2).
1. Check one box below for the case type that best describes this case:
(Amount
Auto Tort
= Auto (22)
= Uninsured motorist (46)
Other PI/PDNVD (Personal Injury/Property
Damage/Wrongful Death) Tort
Asbestos (04)
= Product liability (24)
Medical malpractice (45)
= Other PUPD/VVD (23)
Non-PI/PD/WD (Other) Tort
Business tort/unfair business practice (07)
Civil rights (08)
C=1 DefamatIon (13)
Fraud (16)
Intellectual property (19)
Professional negligence (25)
Other non-PUPDNVD tort (35)
Eruloyment
I WrongfuI termlnatIon (36)
1-1 Other ernployment (15)
El
El
El
El
El
El
El
.. ":1. ::,:titlIata
gy:
Contract
TA Breach of contract/warranty (06)
Rule 3.740 collections (09)
Other collections (09)
Insurance coverage (18)
Other contract (37)
Real Property
Eminent domain/Inverse
condemnation (14)
Wrongful eviction (33)
Other real property (26)
El
El
Unlawful DetaIner
= Commerclal (31)
= Residential (32)
= Drugs (38)
JudIcial RevIew
= Asset forfeiture (05)
onag
p w)ard (11)
re: a i br reiltiw
Pethtletiro:dici
Writ of mandate (02)
El o
El
2CV22 1
328
Provislonally Complex ClvIl LItIgatIon
(Cal. Rules of Court, rules 3.400-3.403)
El Antitrust/Trade regulation (03)
El Construction defect (10)
El Mass tort (40)
El Securities litigation (28)
El Environmentalifoxic tort (30)
Insurance coverage daims arising from the
El above
listed provisionally complex case
types (41)
Enforcement of Judgment
= Enforoement of judgment (20)
MIscellaneous ClvIl ComplaInt
= RICO (27)
= Other complaint (not specified above) (42)
MIscellaneous Civil PetitIon
Partnership and corporate govemance (21)
1-1 Other petitIon (not specitied above) (43)
El
complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the
I-71 is not
2. This case I I is
factors requiring exceptional judicial management:
d. = Large number of witnesses
a = Large number of separately represented parties
Extensive
motion
practice
raising
difficult
or
novel
e. n Coordination with related actions pending in one or more courts
b I- 1
in other counties, states, or countries, or in a federal court
issues that will be time-consuming to resolve f = Substantial postjudgment judicial supervision
c. = Substantial amount of documentary evidence
3. Remedies sought (check all that apply): arn monetary b.= nonmonetary; dedaratory or injunctive relief C. = punitive
4. Number of causes of action (specify): 5
5. This case ri is F-ii is not a dass action suit
6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015 ),/
Date:
3/2//
4difer Cism
(TYPE OR PRINT NAME)
•
•
•
•
(SIGNATURE OF PARTY OR ATTORNEY FOR PARTY)
NOTICE
Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed
under the Probate Code, Family Code, or Welfare and Instituttons Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result
in sanctions.
File this cover sheet in addition to any cover sheet required by local court rule.
lf this case is complex under rule 3.400 et seq. of the Califomia Rules of Court, you must serve a copy of this cover sheet on all
other parties to the action or proceeding.
Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.Psae 1 of 2
Forrn Adopted for Mandatory Use
Jucritial Cound of Caifornia
CM-010 (Rev. July 1. 2007)
CIVIL CASE COVER SHEET
Cel Rules of Court. rutes 2.30. 3.220. 3.400-3.403. 3.7442,
Csd. Standards of Judclet Actnarestration. std. 3.10
www.courenfo.ce.gov
INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET CM-010
To Plaintiffs and Others Filing FIrst Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must
complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile
statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. ln item 1, you must check
one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1,
check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action.
To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover
sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party,
its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.
To Partles ln Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money
owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in
which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort
damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of
attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general
time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections
case will be subject to the requirements for service and obtaining a judgment in rule 3.740.
To Partles In Complex Cases. ln complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the
case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by
completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the
complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the
plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that
the case is complex.
CASE TYPES AND EXAMPLES
ProvIsionally Complex CIvIl LItIgation (Cal.
Auto Tort
Contract
Auto (22)—Personal Injury/Property
Damage/Wrongful Death
Uninsured Motorist (46) (if the
case involves an uninsured
motorist claim subJect to
arbitration, check this item
instead of Auto)
Other PI/PONVD (Personal InIury/
Property DamageNVrongful Death)
Tort
Asbestos (04)
Asbestos Property Damage
Asbestos Personal Injury/
VVrongful Death
Product LIability (not asbestos or
toxic./environmental) (24)
Medical MalpractIce (45)
Medical MalpracticePhysicians & Surgeons
Other Professional Health Care
Malpractice
Other PUPDNVD (23)
Premlses Uability (e.g., slip
and fall)
Intentional Bodily Injury/PD/VVD
(e.g., assault, vandalism)
Intentional Inffiction of
Emotional Distress
Negligent Infliction of
Emotional Distress
Other PI/PDAND
Non-PUPDNVD (Other) Tort
Business Tort/Unfair Business
PractIce (07)
Civil Rights (e.g., discrimination,
false arrest) (not civil
harassment) (08)
Defamation (e.g., slander, libel)
(13)
Fraud (16)
Intellectual Property (19)
Professional Negligence (25)
Legat Malpradice
Other Professional MaIpractice
(not medical or legafi
Other Non-PI/PDNVD Tort (35)
Employment
VVrongful Termination (36)
Other Ernployment (15)
CM-010 (Rev. July 1, 2007)
Breach of ContractNVarranty (06)
Breach of Rental/Lease
Contract (not unlawful detainer
or wrongful eviction)
ContractNVarranty Breach—Seller
PlaIntiff (not fraud or negligence)
Negligent Breach of Contract/
Warranty
Other Breach of ContractNVarranty
CollectIons (e.g., money owed, open
book accounts) (09)
Collection Case—Seller Plaintlff
Other Promissory Note/Collections
Case
Insurance Coverage (not provisionally
complex) (18)
Auto Subrogation
Other Coverage
Other Contract (37)
Contractual Fraud
Other Contract Dispute
Real Property
Eminent DomaiNInverse
Condemnation (14)
VVrongful Eviction (33)
Other Real Property (e.g., quiet title) (26)
Writ of Possession of Real Property
Mortgage Foreclosure
Quiet Title
Other Real Property (not eminent
domain, landlord/tenant, or
foreclosure)
Unlawful Detalner
Commercial (31)
Residential (32)
Drugs (38) (if the case Involves Illegal
dregs, check this item; otherwise,
report as Commercial or Residential)
JudIcIal RevIew
Asset Forfeiture (05)
Petition Re: Arbitration Award (11)
1Nrit of Mandate (02)
VVrit—Administrative Mandamus
VVrit—Mandamus on Umited Court
Case Matter
Writ—Other Limited Court Case
Review
Offter Judicial Review (39)
Review of Health Officer Order
Notice of Appeal—Labor
Commissioner Appeals
CIVIL CASE COVER SHEET
Rules of Court Rules 3.400-3.403)
Antitrust/Trade Regulation (03)
Construction Defect (10)
Claims InvoIving Mass Tort (40)
Securities Litigation (28)
EnvIronmental/Tmdc Tort (30)
InsuranCe Coverage Claims
(arising from previsionally complex
case type listed above) (41)
Enforcement of Judgment
Enforcement ofJudgment (20)
Abstract ofJudgment (Out of
County)
Confession of Judgment (non-
domestic mlations)
Sister State Judgment
Administrative Agency Award
(not unpaid taxes)
PetitioNCertification of Entry of
Judgment on Unpald Taxes
Other Enforcement of Judgment
Case
miscellaneous Civil ComplaInt
RICO (27)
Other Complaint (not specified
above) (42)
Dedaratory Relief Only
Injunctive Relief Only (nonharassment)
Mechanics Uen
Other Commercial Complaint
Case (non-tort/non-complex)
Other Civil Complaint
(non-tort/non-complex)
Miseellaneous CIvit Petition
Partnership and Corporate
Govemance (21)
Other Petition (not specified
above) (43)
Civil Harassment
Workplace Violence
Elder/Dependent Adult
Abuse
Election Contest
Petition for Name Change
Petition for Relief From Late
Claim
Other Civil Petition
Page 2 ol2
EXHIBIT 32
EXHIBIT 33
EXHIBIT 34
EXHIBIT 35
EXHIBIT 36
EXHIBIT 37
EXHIBIT 38
EXHIBIT 39
EXHIBIT 40
EXHIBIT 41
EXHIBIT 42
EXHIBIT 43
EXHIBIT 44
Service of Process
Transmittal
TO:
Myrna Goodrich, U13N, Paralegal
Aetna,Inc.
980 Jolly Road
Blue Bell, PA 19422-1904
RE:
Process Served in California
FOR:
Aetna Life Insurance Company (Domestic State: CT)
05/17/2012
CT Log Number 520533014
ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
TITLE OF ACTION:
Knowles Surgery Center, LLC, Pltf. vs. Aetna Life Insurance Company, etc., et al.,
Dfts.
DOCUMENT(S) SERVED:
Summons, Complaint and Jury Demand, Exhibit(s), Notice(s), Instructions, Cover
Sheet, ADR Packet(s)
COURT/AGENCY:
Santa Clara County - Superior Court - San Jose, CA
Case # 112CV223326
NATURE OF ACTION:
Insurance Litigation - Policy benefits claimed for medical services rendered
ON WHOM PROCESS WAS SERVED:
C T Corporation System, Los Angeles, CA
DATE AND HOUR OF SERVICE:
By Process Server on 05/17/2012 at 15:46
JURISDICTION SERVED:
California
APPEARANCE OR ANSWER DUE:
Within 30 days after service - File written response // 9/4/12 at 1:30 p.m. - Case
Management Conference / / At least 15 days before the Case Management
Conference - File and serve a Case Management Statement
ATTORNEY(S) / SENDER(S):
Heather Gibson
Law Offices of Heather E. Gibson L.L.P.
20398 Blauer Drive
Saratoga, CA 95070
408-359-1035
ACTION ITEMS:
CT has retained the current log, Retain Date: 05/18/2012, Expected Purge Date:
05/23/2012
Image SOP
Email Notification, Desiree Beatt beattyd@aetna.com
Email Notification, Tracy Shorts s,^ortsT@aetna.com
CC Recipient(s)
Lisa Adinolfi, via Customer Pick-up
SIGNED:
PER:
ADDRESS:
C T Corporation System
Nancy Flores
818 West Seventh Street
Los Angeles, CA 90017
213-337-4615
TELEPHONE:
Page 1 of 1 / AT
Information displayed on this transmittal is for CT Corporation's
record keeping purposes only and is provided to the recipient for
quick reference. This information does not constitute a legal
opinion as to the nature of action, the amount of damages, the
answer date, or any information contained in the documents
themselves. Recipient is responsible for interpreting said
documents and for taking appropriate action. Signatures on
certified mail receipts confirm receipt of package only, not
contents.
SUM-100
SUMMONS
•
(CITACION JUDICIAL)
■FOR COPRT yfiE ONLY
(SOLO.PAR4 Ug(Ybt LA CORTE)
NOTICE TO DEFENDANT:
P
(AVISO AL DEMANDADO):
AETNA LIFE INSURANCE COMPANY, (A Foreign Corporation), and
DOES 1 through 25, inclusive
Ft 27 zipd
rzixIH
„
By:
YOU ARE BEING SUED BY PLAINTIFF:
Cut
DeiviGet
(LO ESTA DEMANDANDO EL DEMANDANTE):
KNOWLES SURGERY CENTER, LLC
NOTICEI You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after thls summons and legal papers are served on you to file a written response at this court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more informafion at the Califomia Courts
Online Setf-Help Center (www.courtinfo.ca.goviselfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by defautt, and your wages, money, and property
may be taken without further wamIng from the court.
There are other legal requirements. You may want to call an aftomey right away. If you do not know an attomey, you may waM to call an attorney
referral service. If you cannot afford an attomey, you may be elIgible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the Cafifomla Legal Services Web site (www.lawhelpcalifomia.org), the California Courts Online Self-Help Center
(www.courtinfo.ca.goviseffhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waIved fees and
costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be pald before the court will dismiss the case.
Lo han demandado. Si no responde dentro de 30 dles, Ia corte puede decIdir en su contra sin escuchar su versi6n. Lea informacido a .
continuaciOn.
Tiene 30 DIAS DE CALENDARIO despues de que le entreguen esta citacien y papeles legales para presentar una respuesta por escrito en esta •
corte y hacer que se entregue una copia al demandante. Una carta o una Ilamada telef6n1ca no lo protegen. Su respuesta por escrito tlene que estar
en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulado que usted pueda usar para su respuesta.
Puede encontrar estos formularios de Ia corte y mes informacI6n en el Centro de Ayuda de las Cortes de Califomia (www.sucorte.ca.gov ), en la
biblioteca de leyes de sutondado o en Ia coite que le quede m6s cerca. Si no puede pagar la cuota de presentaci6n, pida al secn3tario deJa corte
que le de un formulario de exenciOn de pago de cuotas. Sirto presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le
podre quitar su sueldo, dinero y bienes sin mes advertencia.
Hay otros requisitos legales. Es recomendable que Ilame a un abogado inmediatamente. S/no conoce a un abogado, puede Ilamar a un servicio de
remisiOn a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un
pregrama de servicios legales sIn fines de lucia. Puede encontrar estos grupos sin firres de lucro en el sitio web de Califomia Legal Services,
(www.lawhelpcalifomia.org), en el Centto de Ayuda de las Cortes de Califomia, (www.sucorte.ca.gov) o poniendose en contacto con Ia corte o el
colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre
cualquier recuperaciOn de $10,000 6 m6s de valor recibfda mediante un acuerdo o una concesiOn de arbitrafe en un ciso de derecho civil. Tiene que
pagar el gravamen de Ia corte antes de que la corte pueda desechar el caso.
The name and address of the court is:
nombre y direcciOn de la corte es):
CASE NUMBER:
Memero del Ceso):
Alttlt%
Santa Clara County Superior
191 North First St., Saii)ose, CA 95113
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attomey, is:
(EI nombre, la direcciOn y el nOmero de telafono del abogado del demandante, o del demandante que no tiene abogado, es):
Heather Gibson, Law Offices of Heather E. Gibson, 20398 Blauer Dr., Saoja, CA; 408-359-1035
teeet.
DATE:
Clerk, by
DAiliDayAmAsida
(FectOR2 202 (Secreta
rio)
, Deputy
(Adjunto)
caidgypentiveOfFvT aetV
(For proof of service of this summons, use Proof of Service of Summons (form POS-010).)
(Para prueba de entrega de esta citatiOn use el formulario Proof of Service of Summons, (POS-010)).
NOTICE TO THE PERSON SERVED: You are served
[SEAL]
1. 1-1 as an individual defendant.
2. r--1 as the person sued under the fictitious name of (specify):
AcTiti4
3.
,,
,
on behalf of (specify): 1 646.(6 m
under
ogrUICE CDA1)64(
copowno Nt.)
CCP 416.10 (corporation)
CCP 416.20 (defunct corporation)
F-1 CCP 416.40 (association or partnership)
E
1i
1-1
CCP 416.60 (minor)
CCP 41.6.70 (conservatee)
CCP 416.90 (authorized person)
other (specify):
4. = by personal delivery on (date):
Pape 1 of 1
•Form Adopted for Mendetcry Use
Judlcial Coundl of Cafrtomla
SUM-10D [Rev. July 1, 2009]
SUMMONS
Code of CMI Procedure §§ 412.20, 485
wmv.courtinto.ca.gov
www.accesslaw.com
Heather E. Gibson (SBN 240938)
Law Oftices of Heather E. Gibson
20398 Blauer Drive
Saratoga, CA 95070
(408) 35971035
(408) 359-1102 (fax)
legal@basurgical.com
Attorneys for Plaintiff,
KNOWLES SURGERY CENTER, LLC
OR 27 irilz
,
E.
atWitAg
Jah.
444M
IN THE SUPERIOR COURT OF THE STATE OF CALIFORN1A
COUNTY OF SANTA CLARA
DOWNTOWN SUPERIOR COURT
LIMITED JURISDICTION-UNDER $10,000
KNOWLES SURGERY CENTER, LLC, ) Case No.
Plaintiff
v.
KNOWLES SURGERY CENTER, LLC.'
) COMPLAINT FOR DAMAGES AGAINS
) DEFENDANT AETNA LIFE INSURANC
) COMPANY
AETNA L1FE 1NSURANCE COMPANY
Foreign Corporation), and DOES 1 through )
)
25, inclusive,
Defendants
Al%"""6
1) Breach of Contract
2) California Business & Professions
Code § 17200 et seq.
3) Negligent Misrepresentation
4) Promissory Estoppel
5) Equitable Estoppel.
) DEMAND FOR JURY TR1AL
) DEMAND UNDER $10,000
PLAIN'FIFF'S COMPLAINT FOR DAMAGES
INTRODUCTION
2
3
1. This is an action for Breach of Contract, for violations of California Business and
4
Professions Code § 17200 et seq., for Negligent Misrepresentation, Promisso
5
Estoppel, and Equitable Estoppel against Defendant AETNA L1FE 1NSURANC
6
COMPANY. ("AETNA").
2 By the allegations set forth herein, Plaintiff KNOWLES SURGERY CENTER, Ile
7
("KNOWLES"), seeks damages for the difference between the amount that AETN
8
paid KNOWLES for surgical procedures performed, and the amount billed b
9
KNOWLES for those surgical procedures in addition to other damages, according t
10
proof at trial.
I1
2. Pursuant to AETNA'S agreement with KNOWLES, AETNA was required to pay 70°/
12
of the cost of approved surgica1 procedures for out-of-contract providers, such
13
KNOWLES.
14
3. Plaintiff KNOWLES is now pursuing payment on its own behalf only, for th
15
underpaid surgery by pursuing each Cause of Action against AETNA stated below.
16
4.
Defendant AETNA failed to make full payment to KNOWLES, and instead paid onl
17
$860.19 of the billed $12,500.00, or approximately 6% rather than the 70% promise
18
by AETNA.
19
5. Plaintiff KNOWLES is ignorant of the true names and capacities of defendants sue
20
herein as DOES 1-25, inclusive, and therefore sues defendants by such lictitious names.
21
Plaintiff KNOWLES will amend this complaint to allege their true names an
22
capacities when ascertained.
23
6. Plaintiff KNOWLES is informed and believes and thereon alleges that, at all time
24
herein mentioned, each of the defendants sued herein was the agent and employee o
25
each of the remaining defendants and was at all times acting within the purpose an
26
scope of such agency and employment.
27
///
28
PLAINTIFF'S COMPLAINT FOR DAMAGES
-2
KRISDICTION AND VENUE
7. This action arises under California law• and the amount in controversy is less tha
$10,000.00, and therefore venue in an limited jurisdiction is appropriate.
8. .lurisdiction is proper pursuant to Cal. Civ. Proc. Code §§ 410.10, 410.50 and 1060.
9. Venue is proper in this judicial district pursuant to Cal. Civ. Proc. Code § 395.
10. This case is not pre-empted by Federal ER1SA law, because Plaintiff has alleged direc
causes of action under California state law against its patient's insurer, AETNA, fo
breach of contract, negligent misrepresentation, promissory estoppel, breach of contrac
and equitable estoppel. Kurtz, Richard, Wilson & Co. Inc. v. Insurance Communicator
Marketing Corp. (1993) 12 Cal.App.4th 1249.)
THE PART1ES
11. Plaintiff, KNOWLES, is, and at all times herein mentioned was, a California Limited
Liability Corporation organized and existing under the laws of the State of California
with its principle place of business located at 555 Knowles Drive Suite 115, Los Gatos,
County of Santa Clara.
12. Plaintiff is informed and believes that Defendant AETNA both advertises for, and
conducts business on a continuous basis within the State of California, County of Santa
Clara.
13. The individual upon whom the surgery at issue was performed, identified by AETNA
Member ID W157266080 (in compliance with the Federal Health Insurance Portability
and Accountability Act (HIPAA)) resides within the County of Santa Clara in the State
of California.
14. The surgery upon which this lawsuit is predicated was performed at the KNOWLES
center located in Los Gatos , California, which is managed by the Bay Area Surgical
Management, LLC., located in Santa Clara County California.
///
PIAINl'IFF'S COMPLA 1NT FOR DAMAGES
-3
FACTUAL ALLEGATIONS
15. KNOWLES is an ambulatory surgery facility located in Los Gatos, California.
16. One of KNOWLES's patients, (identified by AETNA Member ID No. W157266080
and AETNA Claim ID: E334TXTSCOO in order to preserve the patient's privacy in
compliance with HIPPA laws) hereafter referred to as "PATIENT" was scheduled for
surgery on September 8, 2011 at KNOWLES. Dr. Norman J. Kahan was scheduled to
perform the surgery.
17. The surgery performed by Dr. Norman J. Kahan consisted of Right L5 &
SlTransforaminal Epidural Steroid Injection under Fluoroscopic Guidance,.
Epidurogram and use of Fluoroscopic Guidance, Conscious Sedation and Local
anesthetic for sedation by HIPPS and Current Procedural Terminology (CPT) Codes:
724.4, 64483,64484..
18. The PATIENT was insured by AETNA.
19. Prior to the PATIENT's scheduled surgery, on September 7 , 2011, Lisa a KNOWLES
employee verified with an employee of AETNA via phone that pre-authorization was
not necessary for the surgery the PATIENT was scheduled to undergo. AETNA
employee Doray M. and Lory S. provided a reference number of 1047897556 and
1047897556 for this surgery. The same AETNA employee then confirmed that the
PATIENT was covered under AETNA health insurance, and verified the terms of the
PAT1ENT's insurance coverage. In addition, KNOWLES contirmed that the PATIENT
was insured by AETNA online, in the provider self-service-eligibility and benefits
details portion of AETNA's web page. This online verification further verified that
AETNA would cover the PATIENT for at least 70% of the billed price of procedures
on the PATIENT by KNOWLES an out of network provider.
20. On September 8, 2011, Dr. Norman J. Kahan performed the PATIENT's surgery, as
scheduled, and exactly as described to the AETNA agent who stated that preauthorization was not necessary and provided reference numbers for the above-stated
planned procedures.
PLAINTIFFIS COMPLAINT FOR DAMAGES
-
4
21. Shortly following the PAT1ENT's surgery, KNOWLES billed AETNA for the
PATIENT's procedure, however, AETNA failed to tender the amount due.
22. Thereafter, KNOWLES contacted AETNA via written correspondende, sent on
December 22, 2011, informing AETNA of the underpaid claim, and requesting that the
claim be paid as promised.
23. Thereafter, KNOWLES contacted AETNA again via written correspondence, sent on 228-2012 informing AETNA of the underpaid claim, requesting that the claim be paid
according to the PATIENT's insurance benefits as promised, and informing it of
KNOWLES s intent to file suit in the event that no further payment was made within
fourteen (14) days of AETNA's receipt ofKNOWLES's correspondence.
24. To date, AE'TNA has refused to pay the contracted price for the PATIENT's surgical
procedures, therefore KNOWLES has brought this instant action to recover the amount
it is owed.
FIRST CAUSE OF ACTION
(Breach of Contract Against Defendant AETNA)
25. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
26. On information and belief, on or about August 27, 2007, the PATIENT and Defendant
AETNA, entered into a written contract whereby AETNA agreed to tender payment in
the amount of 70% of the billed price for qualified surgical procedures.
27. Because KNOWLES was an out-of-network provider at the time that the PATIENT's
surgery was performed, this agreement extended to those procedures performed at
KNOWLES.
28. Prior to performing surgery on PATIENT, KNOWLES contacted AETNA via phone in
order to verify that the scheduled surgical procedures would be considered "qualified"
and therefore covered by AE'TNA. AETNA verified the PATIENT vvas covered, and
that no pre-authorization was necessary for the scheduled procedures. Reference
numbers were provided: 1047897556 and 1047897556 for this surgery. Accordingly,
PLAINTIFF'S COMPLAINT FOR DAMAGES
-5
1
Plaintiff perfonned medically necessary surgery on the PATIENT, an individual
2
insured by AETNA.
3
29. Nevertheless, Defendant AETNA breached its contract as described in 20, 21, 22,
4
and 23 of the instant complaint by failing and refusing to perform in good faith its
5
promise to honor the contracted agreement and to tender 70% of the billed amount
6
which was it's obligation or $7,639.81 for services rendered.
7
30. As a result of the breach of Defendant AETNA, in the obligations pursuant to the
8
contract as described herein for the entire sum of $12,500.00 less the allowed amounts,
9
or $7,639.81 is now due, owing and unpaid; Plaintiff has made numerous demands
10
upon Defendant for payment, but no further payment has been made.
11
31. To date, Defendant AETNA has failed and refused, and continues to fail and refuse to
12
tender full payment pursuant to the terms of its contract as described herein for the
13
$12,500 billed for the procedures at issue by Plaintiff KNOWLES. Defendant has
14
therefore breached its contract with Plaintiff, who has been damaged thereby in the sum
15
of the difference between the amount allowed by AETNA, and the amount outstanding,
16
or $7,639.81 plus interest at the legal rate from and after the date due according to the
17
proof, plus additional damages including the costs of this lawsuit as stated below
18
according to proof.
19
20
SECOND CAUSE OF ACTION
•
(California Business & Professions Code 17200 eL seq. Against Defendant AETNA)
32. Plaintiff incorporates by reference each and every allegation in the preceding
21
paragraphs.
22
33. The Unfair Competition Act (UCA) California Business and Professions Code 17200 et
23
seq., prohibits any "unlawful, unfair or fraudulent business act or practices..."
24
34.1n the instant case, AETNA unlawfulljf refused to honor the terms of its contract
25
described herein in violation of section §235(2) of the Restatement Second of
26
Contracts, and thus, giving rise to FOREST's claim to damages pursuant to Califomia
27
Civil Code section §3300 et seq.
28
PLAINTIFF'S COMPLAINT FOlt DAMAGES
-6
1
35. Defendant AETNA, further illegally attempted to persuade Plaintiff into agreeing to
2
take less than the contracted arnount for services rendered, on numerous occasions, in a
3
bad faith attempt at settlement, in violation of California Insurance code § 790.03 and
4
also in contravention of California Business and Professions code §17200. et seq.
5
36. Defendant AETNA did nothing to correct the apparent illegalities in attempting to
6
persuade Plaintiff KNOWLES to settle for a lower amount than what it owed, and
7
instead, verified those illegalities by doing nothing in response to KNOWLES's
8
repeated requests for appropriate payment.
9
37. Further, there has been no response from DEFENDANT to Plaintiff's written demand
10
sent on February 28, 2012, and therefore, AETNA has further violated California Ins.
11
Code §790.03 by failing to respond within the applicable (30) day time period.
12
38. By engaging in unlawful conduct pursuant to California Civil Code §3300 that violates
13
the parameters set forth in the Restatement Second of Contracts §235(2), by making
14
misrepresentations with respect to authorization given for the PATIENT's surgical
15
procedures and the percentage of the authorized amount that would be paid, and for
16
violations of insurance code §790.03, AETNA is engaging in unlawful business
17
practices and is in violation of Business and Professions code §17200 et seq.
18
19
20
21
22
THIRD CAUSE OF ACT1ON FOR NEGLIGENT MISREPRESENTATION
(Against Defendant AETNA)
39. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
40. Defendant AETNA owed a duty to Plaintiff KNOWLES to give it accurate statements
of fact with respect to the pre-authorization of surgery scheduled to be performed on
23
24
25
the KNOWLES PATIENT insured by AETNA.
41. Defendant AETNA made a statement to KNOWLES through its agent, that " preauthorization was not necessary" for the surgery that the PATIENT was scheduled to
26
undergo on September 8, 2011, and thereafter provided reference numbers for the
27
28
same.
PLAINTIFF'S COMPLAINT FOlt DAMAGES
-7
42. The AETNA employee and agent who made this statement either knew, or should have
known, that making this statement to the KNOWLES employee who had called for preauthorization would cause that KNOWLES employee to rely on that statement and go
forward with the surgery with the understanding that AETNA had expressly authorized
it.
43. KNOWLES justifiably relied on AETNA's misrepresentations as set forth above, and
went forward with the procedure, reasonably expecting to be reimbursed at the very
least in the amount of 70% of the billed price of the surgery pursuant to the express
statements from AETNA, that out-of-network providers, such as KNOWLES would be
paid at least 70% of the billed amount.
44. In the event that the AETNA representative had told KNOWLES that it would not
authorize its insured's scheduled procedure for any reason, or refused to give preauthorization for any reason, then KNOWLES would not have gone forward with the
PAT1ENT's surgery as scheduled.
45. As a direct and proximate cause of the misrepresentation made to KNOWLES,
KNOWLES went forward with the PATIENT's surgery, and payment was not made at
the contracted for amount, and therefore KNOWLES suffered damages as a result of its
reliance upon AETNA's misleading and incorrect statements.
46. As a direct and proximate cause of KNOWLES's justifiable refiance upon AETNA's
misrepresentations, KNOWLES suffered loss according to proof at trial.
FOURTH CAUSE OF ACTION FOR PROMISSORY ESTOPPEL
(Against Defendant AETNA)
47. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
48. Defendant AETNA made a clear and definite promise to KNOWLES when
KNOWLES contacted AETNA, gave AETNA specific information regarding
procedures to be performed, prior to the PATIENT's surgery, and requested verification
that pre-authorization need not be given to KNOWLES. AETNA responded to
PLAINTIFF'S COMPLAINT FOR DAMAGES
-8
KNOWLES's request by expressly stating that " pre-authorization was not necessary"
for the procedure codes given and thereafter provided reference numbers as stated
herein. Therefore, KNOWLES, as an out-of-network provider would be paid for at
4
least 70% of the billed amount for the PATIENT's procedure. (Detailed in Exhibit A
5
attached hereto). Therefore, KNOWLES went forward with the PAT1ENT's scheduled
6
surgery in reliance on AETNA's statement.
7
49. AETNA made the above-mentioned promise that pre-authorization was not required
8
for the PATIENT's scheduled surgery with the expectation that KNOWLES would rely
9
on that promise, and would go forward with the PATIENT's surgery as scheduled.
10
50. It was foreseeable that KNOWLES would proceed with the PATIENT's surgery, as
11
scheduled, based on AETNA's assurance that " pre-authorization was not necessary"
12
and provided reference numbers prior to the time that the surgery was performed.
13
51. KNOWLES reasonably relied upon AETNA's promise that pre-authorization was not
14
required, and therefore went forward with the PATIENT's surgery as scheduled.
15
52. KNOWLES suffered a detriment of a definite and substantial nature as a result of its
16
reasonable reliance upon AETNA's above stated promise in that it was not reimbursed
17
at the contracted rate for the services rendered to the PATIENT, and in fact, was paid
18
less than 6% of the cost of the billed surgical procedures performed.
19
20
21
22
23
FIFTH CAUSE OF ACTION FOR EQUITABLE ESTOPPEL
(Against Defendant AETNA)
53. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
54. AETNA had been advised, prior to the date of the PATIENT's surgery, that
24
KNOWLES had scheduled surgery for that PATIENT, and had expressly explained to
25
AETNA what that surgery would consist of, therefore AETNA had been advised of all
26
relevant facts prior to the PATIENT's surgery.
27
55. AETNA was aware that, and intended for, KNOWLES to proceed with the PATIENT's
28
surgery, as scheduled, and AETNA's intentions were supported by its refusal to explain
PLAINTIFF'S COMPLA1NT FOR DAMAGES
-9
to KNOWLES that it would not cover any portion of the PATIENT's procedure at the
agreed upon contracted rate of 70')/0 or more of the billed procedure's price. As such,
AETNA's actions and omissions were reckless and malicious.
56. KNOWLES was ignorant of the true facts, specifically that AETNA had decided not to
cover the PATIENT's scheduled surgical procedure at the rate of 70% or more.
57. KNOWLES relied, to its detriment upon AETNA's statement that was given in moving
forward with the PATIENT's surgical procedure as scheduled, instead of cancelling it.
KNOWLES therefore lost a significant amount of money, in having to complete the
PATIENT's surgery, pay for all of the cost and labor associated with that surgery, and
then to be paid less than 6% of the billed price of that surgery. Consequently,
KNOWLES has changed its position for the worse in its good faith reliance upon
AETNA's negligent misrepresentations with respect to payment for the PATIENT's
procedures.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for declaratory relief and judgment as follows:
1)
That defendant AETNA must pay to plaintiff the amount of $7,639.81.00
plus interest at the legal rate accruing from the date of breach;
2)
Pre-judgment and post-judgment interest as allowed by law;
3)
Costs According to proof; and
4)
Such other and further legal and equitable relief as the Court deems jus
and proper.
DEMAND FOR .IURY TRIAL
Plaintiff hereby demands a trial by jury.
LAW OFFICES OF HEATHER E. G1BSON
DATED: April 18, 2012
By:
HEATHER E. GIBSON
Attorney for Plaintiff Knowles Surgery Center, LLC
PLA I NTI FF'S COMPLA I NT FOR DA MAGES
- 10
EXHIBIT A
EXHIBIT A
Dec. 20. 201)
N 0.
8:00AM
KNOWLES SURGERY CENTER
Insurance Verification Forin
Patient Name:
Physician Name: Procedure/ CpT ents:
Employer Name: Employer Address: Workers Comp: Y N Date of Injury: Auth ft:
Adjnster's Name:
Work Phone: Claim #: Phone:
Phone0C4
Insurance Comp
Ciaims ddresS:
Plakei
City:
State: Ahreumr.
Subscriber (if diff rent from p . tien ): •
Relationship to Patient:
Subscriber DOB: Subscribers S.S gt;
ID #: cam
Patients D013:
Zip Code:
.s #: m.f l"
g:C 3
Group #: phone;
Insurance. Company Name: Claims Address: Zip Code: State: City: Subscriber (if different from patient): Relationship to Patient: Subscriber DOB: Patients S,S 41: Subscribers S.S#: Group ID#: Patients DOB: Date Called:
Contracted: Y
Called By;
. Effective Date:
In-Network:
Co-Pay: $
Verified With:_
(ifnot contracted obtain both In and Out Jetvvork)
Deductible: $
rnet: Deductible: $
Co-Ins:
.2 0
AMOUrrt
Out-of-Network:
Co - Pay:
11/ Ins C
BenefSt/ Coirerage Comments:
JN
otrr
tt.
vers
00P
gggi
2000
spmated Charges:
,•
,2C7)
f
pag
Per:
Auth #: Pre-Auth Required: Y
frQce5l ireJCP
Arnount met:
rterin
Daily Max:
DUE FRON PATIENT
DUE POR ANESI'HESIA
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):
—
FOR COURT USE ONLY
Heatber E. Gibson (SBN 240938)
Law Offices of Heather E. Gibson
20398 Blauer Drive, Saratoga, CA 95070
TELEPHONE NO.:
ATTORNEY FOR (Name):
408-359-1035
FAX NO.:
ss.:a3)
-1
.
408-359-1102
Plaintiff Knowles Surgery Center, LLC
4PR. 27
SUPERIOR COURT OF CAUFORNIA, COUNTY OF Santa Clara
STREET ADORESS:
191 North First Street
nai2
MAILING ADDRESS:
San Jose, CA 95112
'
Su p erior
CASE NAME: Knowles Surgery Center, LLC v Aetna Life lns Co
CITY AND ZIP CODE:
BFtANCH NAME:
CIVIL CASE COVER SHEET
El Unlimited
rA
(Amount
demanded
exceeds $25,000)
Limited
(Amount
demanded is
$25,000 or less)
4
1? •
4(cA2
Vithiecit
CASE NUMBER:
Complex Case DesIgnation
Joinder
. Counter
Filed with first appearance by defendant
(Cal. Rules of Court, rule 3.402)
JUDGA
DEPT:
A at
Cl/ v 1
rl
'5 ' Z b
.
Items 1-6 below must be completed (see instructions on page 2).
1. Check one box below for the case type that
Auto Tort
= Auto (22)
Uninsured motortst (46)
Other PUPD/WD (Personal Injury/Property
Damage/Wrongful Death) Tort
Asbestos (04)
= Product liability (24)
Medical malpractIce (45)
Other PI/PDMD (23)
Non-PUPD/WD (Other) Tort
Business tort/unfair business practice (07)
= Civil rights (08)
Defamation (13)
Fraud (16)
Intellectual property (19)
= Professional negligence (25)
Other non-PUPD/WD tort (35)
Ene
l loyment
I
Wrongful termination (36)
Other employment (15)
El
El
El
El
El
LI
best describes thls case:
Contract
[71 Breach of contract/warranty (06)
= Rule 3.740 coltectIons (09)
= Other coIlections (09)
= Insurance coverage (18)
= Other contract (37)
Real Property
Eminent domain/Inverse
condemnation (14)
= Wrongfut eviction (33)
= Other real property (26)
Unlawful Detainer
Commerclal (31)
= Resldential (32)
= Drugs (38)
Judicial Review
Asset forfeiture (05)
Petitton re: arbitration award (11)
Writ of mandate (02)
LI
Provisionally Complex Civil LitlgatIon
(Cal. Rules of Court, rules 3.400-3.403)
=Antitrust/Trade regulation (03)
1-1 ConstructIon defect (10)
= Mass tort (40)
Securities litigation (28)
Environmental/ToxIc tort (30)
Insurance coverage claims arising from the
above listed prcivisionally complex case
types (41)
LI
LI
Enforcement ofJudgment
1-1 Enforcement of judgment (20)
MisceIlaneous Civil Complaint
RICO (27)
= Other complaint (not specified above) (42)
El
Miscellaneous Civil Petition
1-1 Partnership and corporate govemance (21)
Other pelition (not specified above) (43)
1-1 Other judicial review (39)
complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the
2. This case I 1 is
LLI is not
factors requiring exceptional judicial management:
a. = Large number of separately represented parties d n Large number of witnesses
b. = Extensive motion practice raising difficult or novel e ElCoordination with related actions pending in one or more courts
in other counties, states, or countries, or in a federal court
issues that will be time-consuming to resolve f. El Substantial postjudgment judicial supervision
c El Substantial amount of documentary evidence 3. Remedies sought (check all that apply): a.M monetary b.= nonmonetary; declaratory or injunctive relief c. El punitive
4. Number of causes of action (specify):
5. This case = is
17:1 is not a class action suit.
6. lf there are any known related cases, file and serve a notice of related case. (You may use orm CM
Date: April 27, 202
Heather E. Gibson
(SI
(TYPE OR PRINT NAME)
RE OF PARTY OR ATTORNEY FOR PARTY)
NOTICE
• Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result
in sanctions.
• File this cover sheet in addition to any cover sheet required by local court rule.
• lf thls case Is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all
other parties to the action or proceeding.
• Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.
Forrn Adopted for Mandatory Use
JudIdal Coundl of Callfornia
CM-010 (Re . July 1, 2007)
y
CIVIL CASE COVER SHEET
Page 1 of 2
Cal. Rules of Court, ntles 2.30, 3.220, 3.400-3.403, 3.740:
Cal Standards ofJudIcial AdmInIstratIon, std. 3.10
wv.w.coudinfo.ce.gov
www.accesslaw.com
CM-010
,
INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET
To PlaIntiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must
complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile
statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check
one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1,
check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action.
To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover
sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party,
its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.
To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money
owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attomey's fees, arising from a transaction in
which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort
damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ Of
attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general
time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections
case will be subject to the requirements for service and obtaining a judgment in rule 3.740.
To Parties in Complex Cases. ln complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the
case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by
completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the
complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the
plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that
the case is complex.
Auto Tort
Auto (22)—Personal Injury/Property
DamageNVrongful Death
UnInsured MotorIst (46) (lf the
case involves an uninsured
motorist claim subJect to
arbitration, check this item
instead of Auto)
Other PUPDMD (Personal Injury/
Property DaMageANrongfut Death)
Tort
Asbestos (04)
Asbestos Property Damage
Asbestos Personal Injury/
Wrongful Death
Product Llabllity (not asbestos or
toxidenvtronmental) (24)
Medical MalpractIce (45)
Medical Malpractice—
Physicians & Surgeons
Other Professional Health Care
Malpracfice
Other PUPD/VVD (23)
Premlses Liability (e.g., stip
and fall)
Intentional Bodily Injury/PDAND
(e.g., assault, vandalism)
Intentional Inffiction of
EmotIonal Distress
Negtigent Inffiction of
Emotional Distress
Other PUPDIVVD
Non-PUPD/WD (Other) Tort
Business Tort/Unfair Business
Practice (07)
Civil Rights (e.g., dIscrimInatIon,
false arrest) (not civil
harassment) (08)
Defamation (e.g., slander, libel) (13)
Fraud (16)
.
Intellectual Property (19)
Professional Negligence (25)
Legal Malpractice
Other Professlonal Malpractice
(not medical or legal)
Other Non-PUPD/WD Tort (35)
Employment
Wrongful Termlnation (36)
Other Employment (15)
CM-010 (Rev. July 1, 2007)
CASE TYPES AND EXAMPLES
Contract
Breach of ContractNVarranty (06)
Breach of Rental/Lease
Contract (not unlawful detalner
or wrongful eviction)
Contr'acUWarranty Breach—Seller
Plaintiff (not fraud or negligence)
Negligent Breach of Contract/
Warranty
Other Breach of Contract/Warranty
Collections (e.g., money owed, open book accounts) (09)
Collection Case—Seller Plaintiff
Other Promissory Note/Collections
Case
Insurance Coverage (not provisionally
complex) (18)
Auto Subrogation
Other Coverage
Other Contract (37)
Contractual Fraud
Other Contract Dispute
Real Property
Eminent Domain/Inverse
Condemnation (14)
Wrongful Eviction (33)
Other Real Property (e.g., quiet title) (26)
Writ of Possession of Real Property Mortgage Foreclosure
Qulet Title
Other Real Property (not eminent
domain, landlordltenant, or
foreclosure)
Unlawful Detainer
Commercial (31)
Residential (32)
Drugs (38) (if the case involves illegal
drugs, check this item; otherwise,
report as Commercial or Residential)
Judicial Review
Asset Forfeiture (05)
Petition Re: Arbitration Award (11)
Writ of Mandate (02)
Writ—Administrafive Mandamus WrIt—Mandamus on Limited Court
Case Matter
Writ—Other Limited Court Case
RevIew
Other JudIcIal Review (39)
RevIew of Health Officer Order
Notice of AppeaH_abor
Commissloner Appeals
CIVIL CASE COVER SHEET
Provislonally Complex Civil Litigation (Cal.
Rules of Court Rules 3.400-3.403)
Antitrust/Trade Regulation (03)
ConstructIon Defect (10)
ClaIms InvoIvIng Mass Tort (40)
SecuritIes Litigation (28)
Environmental/Toxic Tort (30)
Insurance Coverage Claims
(afising from provisionally complex
case type listed above) (41)
Enforcement of Judgment
Enforcement of Judgment (20)
Abstract ofJudgment (Out of
County)
Confession of Judgment (nondomestic relations)
Sister State Judgment
Administrative Agency Award
(not unpaid taxes)
Petition/Certification of Entry of
Judgment on Unpaid Taxes
Other Enforcement of Judgment
Case
Miscellaneous Civil Complaint
RICO (27)
. Other CompIaint (not speclfied
above) (42)
Declaratory Retief Only
Injunctive Relief Only (nonharassment)
Mechanics Lien
Other Commercial Complaint
Case (non-tort/non-complex)
Other Civil ComplaInt
(non-tortInon-complex)
Miscellaneous Civit Petition
Partnership and Corporate
Govemance (21)
Other Petition (not specified
above) (43)
Civil Harassment
Workplace Violence
Elder/Dependent Adult
Abuse
Eleption Contest
PetItion for Name Change
Petition for Relief From Late
Clalm
Other Civil Petition
Page 2 of 2
ATTACHMENT CV-5012
CIVIL LAWSUIT NOTICE
Superior Court of California, County of Santa Clara
191 N. First St, San Jose, CA 95113
CASE NUMBER:
PLEASE READ THIS ENTIRE
AFIg V 2 2 3 3 6
CI
PLAINTIFF (the person suing): Within 60 days after filing the lawsuit, you must serve each Defendant with the Complaint,
Summons, an Afternative Dispute Resolution (ADR) Information Sheet, and a copy of this Civil Lawsuit Notice, -and you must file
written proof of such service.
DEFENDANT (The person sued): You must do each of the following to protect your rights:
1. You must file a written response to the Complaint, using the proper legal form or format, in the Clerk's Office of the
Court, within 30 days of the date you were served with the Summons and Complaint;
2. You must serve by mail a copy of your written response on the Plaintiffs attomey or on the Plaintiff if Plaintiff has no
attomey (to "serve by mail" means to have an adult other than yourself mail a copy); and
3. You must attend the first Case Management Conference.
Warning: If you, as the Defendant, do not follow these instructions,
you may automatically lose this case.
RULES AND FORMS: You must follow the Califomia Rules of Court and the Superior Court of Califomia, County of Santa Clara
Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive forms, free of charge, from
the Self-Help Center at 99 Notre Dame Avenue, San Jose (408-882-2900 x-2926), www.scselfservice.orq (SeIect "Civil") or from:
•
•
State Rules and Judicial Council Forms: www.courtinfo.ca.qov/forms and www.courtinfo.ca.qov/rules
.Local Rules and Forms: http://www.sccsuperiorcourt.orq/civil/rule 1 toc.htm
CASE MANAGEMENT CONFERENCE (CMC): You must meet with the other parties and discuss the case, in person or by
telephone, at least 30 calendar days before the CMC. You must also fill out, file and serve a Case Management Statement
(Judicial Council form CM-110) at least 15 calendar days before the CMC.
You or your attorney must appear at the CMC. You may ask to appear by telephone — see Local Civil Rule 8.
Your Case Management Judge is: Honorable Mark H. Pierce Department:
The 1.0 CMC is scheduled for: (Completed by Clerk of Court)
Date: SEP 4.- 202 Time: 1:30 PM
in Department: 9
The next CMC is scheduled for: (Completed by party if the 1 s, CMC was continued or has passed)
Date: Time: in Department:
ALTERNATIVE DISPUTE RESOLUTION (ADR): If all parties have appeared and filed a completed ADR Stipulation Form (local
form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference.
Visit the Court's website at www.sccsuperiorcourt.orq/civil/ADR/ or call the ADR Administrator (408-882-2100 x-2530) for a list of
ADR providers and their qualifications, services, and fees.
WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court.
Form CV-5012 REV 7/01/08 .
CIVIL LAWSUIT NOTICE
Page 1 of 1
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
ALTERNATIVE DISPUTE RESOLUTION
INFORMATION SHEET / CIVIL DIVISION
Many cases can be resolved to the satisfaction of all parties without Ihc neccssity of traditional litigation, which can bc expensivc.
time consuming. and stressful. The Court finds that it is in the best interests of the parties that they participatc in altematives to
traditional litigation, including arbitration, mediation, neutral cvaluation, special masters and referees. and settlement conferences.
Therefore, all matters shall be referred to an appropriate form of Alternative Dispute Resolution (ADR) before they arc sct for irial,
unless there is good cause to dispense with the ADR requirement.
What is ADR?
ADR is the general term for a wide variety of dispute resolution processes that are alternatives to litigation. Types of ADR
processes include mediation, arbitration, neutral evaluation, spccial masters and referccs, and senlement confcrences, among others
forms.
IYhat are the advantages of choosing ADR instead of Inigation?
ADR can have a number of advantages over litigation:
< ADR can save time. A dispute can be resolved in a matter of months, or even weeks, while litigation can take years.
< ADR can save money. Attorney's fees, court costs, and expert fees can be reduced or avoided ahogether.
< ADR provides more participation. Parties have more opportunitics with ADR to express thcir intcrcsts and conecrns. insicad of
focusing exclusively on legal rights.
< ADR provides more control and flexibility. Parties can choose . the ADR proccss that is most likely to bring a satisfactory
resolution to their dispute.
< ADR can reduce stress. ADR encourages cooperation and communication, while discouraging the adversarial atmosphere of
litigation. Surveys of parties who have participated in an ADR process havc found much greatcr satisfaction than with partics who
have gone through litigation.
What are the main forms ojADR offered by the Cotsrt?
< Mediation is an informal, confidential, flexible and non-binding process in the mediator helps the parties-to understand the
interests of everyone involved, and their practical and legal choices. Thc mediator hcIps the parties to communicate better.
explore legal and practical settlement options, and rcach an acceplable solution of the problem. The mediator does not
decide the solution to the dispute; the parties do.
< Mediation may bc appropriatc whcn:
< The parties want a non-adversary procedure
< The parties have a cominuing busincss or personal relationship
< Communication problems are intcrfcring with a resolution
< There is an emotional element involvcd
< The parties are interested in an injunction. consent decrec, or other form of equitable relief
< Neutral evaluation, sometimes called "Early Neutral Evaluation" or "ENE", is an informal process in which the evaluator, an
experienced neutral lawyer, hears a compact presentation of both sides of the case, gives a non-binding assessment of the
strengths and weaknesses on each side, and prcdicts the likcly outcome. Thc evaluator can help partics to identify issues,
prepare stipulations, and drafl discovery plans. The parties may use the neutral' s evaluation to discuss seitlement.
Neutral evaluation may be appropriate when:
< The parties are far apart in Iheir view of the law or value of the casc
< The case involves a technical issue in which thc evaluator has expertise
< Case planning assistancc would be helpful and would save Icgal fees and cosis
< The parties are interested in an injunction, consent decree, or other form of equitable relief
-over-
ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET/ CIVIL DIVISION
CV-5003 REV 6/08
< Arbitration is n Icss formal process lhan a Inal, with no jury. The arbitrator hcars thc cvidcncc and arguments of thc parlics, then
makes a writtcn dccision. The parlics can agrec to binding or non-binding arbitration. In binding arbitration, the
arbitrator's dccision is final and completely rcsolvcs the casc, without the opportunity for appeal. In non-binding
arbitration, thc arbdrator's decision could rcsolvc the casc, without the opportunity for appcal, unIcss a party iintely
rcjccts the arbitrator's decision within 30 days and requests n trial. Privatc arbitrators are allowed lo chargc for their timc.
Arbitration may bc appropriate when:
< The action is for personal injury. property datuage, or brcach nrcontract
< Only monetary damagcs arc soughl
< Witness testimony, under oath. nccds to bc evaluated
< An advisory opinion is sought from an expericnced litigator (if a non-binding arbitration)
< Civil Judge ADR allows parties to have a ntediation or sctilement conferencc with an expericnced judgc of the SUperior Coun.
Mcdiation is an informal, confidential, flexible and non-binding proccss in which thc judge hclps thc partics to understand the
interests of cvcryonc involved, and their practical and legal choiccs. A settlemcni confcrence is an infonnal proccss in which the
judgc mccts with thc parties or their attorneys, hcars thc facts of the disptite. hclps itIcntify issues to bc rcsolucd. and normally
suggests a rcsolution that thc partics may acccpt or usc as a basis for furthcr ncgotiations. The request for mcdiation or settletucnt
confercnce may bc made prompily by stipulation (agrecmcnt) upon thc ftling of thc Civil complaint and the answer. Therc is no
charge for this scrvice.
Civil Judgc ADR may bc appropriate when:
< Thc partics havc complex facts to review
< Thc case itwolves multiple parties and problems
< Thc courthouse sumundings would Isc hclpful to thc settlemcnt proccss
< Special masters and referees arc nentral panics who may be appointcd by thc coun to obiain information or to make specitic
fact findings that may Icad to a rcsolution of a dispute.
Special ntastcrs and referces can bc particularly cficctive in complcx eaSes ■vith a numbcr of partics. hke construction dispuics.
< Settlement conferences are informal proecsses in which the neutral (a judgc or an expericnccd attorncy) mcets with the partics or
their attorneys, hears thc facts of thc dispute, hclps identify issucs to bc resolved, and nonnally suggests a rcsolution ihat the partics
may acccpi or usc as a basis for further negotiations.
Sculcmcni conicrenccs can be effcctivc when thc authority or expertise of shc judge or expericnced attorney may hclp thc partics
rcach a resolution.
IVhal kind of dispnics can bc resolvcd by ADR?
Although some disputes must go to court, almost any dispttic can be resolved through ADR. This includcs disputesinvolving
busincss matters; civil rights; collections; corporations: construction; consumer protection: contracts: copyrights; dcfarnation:
disabilitics; discrimination: cmploymcnt: cnvironmcnial prohlerns; fraud; harassment: hcalth care; housing; insurancc; intellectual
property: labor; landlord/icnant; media; mcdical malpractice and other prolessional ncgligcncc: ncighborhood problcms;
pannerships: patcnts: personaI injury; probatc: product liability: property damagc: rcal csiatc: securitics; sports: tradc scerct, and
wrongful dcath, among other matters.
Where cutt you gct assistance with selecting an uppropriate firrnt of ADR and a netural fior your case, infOrmation abont ADR
proccdures, or-answers In other questions about ADR?
Contact:
Santa Clara County Superior Coun
ADR Administrator
408-882-2530
Santa Clara Couniy DRPA Coordinator
408-792-2704
ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET/ CIVIL DIVISION
CV-5003 REV 6108
EXHIBIT 45
EXHIBIT 46
EXHIBIT 47
EXHIBIT 48
Service of Process
Transmittal
TO:
Myrna Goodrich, U13N, Paralegal
Aetna,Inc.
980 Jolly Road
Blue Bell, PA 19422-1904
RE:
Process Served in California
FOR:
Aetna Life Insurance Company (Domestic State: CT)
05/17/2012
CT Log Number 520532605
ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
TITLE OF ACTION:
Bay Area Surgical Group, Inc., etc., Pltf. vs. Aetna Life Insurance Company, etc., et
al., Dfts.
DOCUMENT(S) SERVED:
Summons, Complaint and Jury Demand, Exhibit(s), Notice(s), Cover Sheet, ADR
Packet(s)
COURT/AGENCY:
Santa Clara County - Superior Court - San Jose, CA
Case # 112CV223327
NATURE OF ACTION:
Insurance Litigation - Policy benefits claimed for medical services rendered Seeking $8428.20
ON WHOM PROCESS WAS SERVED:
C T Corporation System, Los Angeles, CA
DATE AND HOUR OF SERVICE:
By Process Server on 05/17/2012 at 15:46
JURISDICTION SERVED:
California
APPEARANCE OR ANSWER DUE:
Within 30 days after service - File written response // 9/4/12 at 3:00 p.m. - Case
Management Conference / / At least 15 days before the Case Management
Conference - File and serve a Case Management Statement
ATTORNEY(S) / SENDER(S):
Heather Gibson
Law Offices of Heather E. Gibson L.L.P.
20398 Blauer Drive
Saratoga, CA 95070
408-359-1035
ACTION ITEMS:
CT has retained the current log, Retain Date: 05/17/2012, Expected Purge Date:
05/22/2012
Image SOP
Email Notification, Desiree Beatty beattyd@aetna.com
Email Notification, Tracy Shorts shortsT@aetna.com
CC Recipient(s)
Lisa Adinolfi, via Customer Pick-up
SIGNED:
PER:
ADDRESS:
C T Corporation System
Nancy Flores
818 West Seventh Street
Los Angeles, CA 90017
213-337-4615
TELEPHONE:
Page 1 of 1 / CM
Information displayed on this transmittal is for CT Corporation's
record keeping purposes only and is provided to the recipient for
quick reference. This information does not constitute a legal
opinion as to the nature of action, the amount of damages, the
answer date, or any information contained in the documents
themselves. Recipient is responsible for interpreting said
documents and for taking appropriate action. Signatures on
certified mail receipts confirm receipt of package only, not
contents.
(5)/,7 747-a°
!
SUM-1 00
SUMMONS
.
(C1TACION JUD1CIAL)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
efofigctuRT USE ONLY
SOLOA
USO DE LA CORTE)
RPR 27
AETNA LIFE INSURANCE COMPANY (A Foreign Corporation), and
DOES 1 through 25, inclusive:!
CabIZar.!aCa,
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):
BAY AREA SURGICAL GROUP, INC. (A Califomia Corporation)
NOTICEI You have been sued. The court may decide against you withOut your being heard unless you respond withIn 30 days. Read the informatIon
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response a thIs court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be In proper legal forrn if ou want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more inform tion at the Catifornia-Courls
Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask
the court cIerk for a fee walver form. If you do not file your response on tIme, you may lose the case by default, and y r wages, money, and property
may be taken without further wamIng from the court.
There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney. y u may want to call an attorney
referral service. If you cannot afford an attomey, you may be eligible for free legal services from a nonprofit legal servi s program. You can locate
these nonprofit groups at the Callfomia Legal Services Web site (www.lawhelpcalifomia.org), the Califomia Courts On ine Self-Help Center
(www.courtinfo.ca.gov/seffheIp), or by contacting your local court or county bar association. NOTE: The court has a st tutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more In a civil case. The court's lien must be paid before th court will dIsmIss the case.
IAVISOI Lo han demandado. Sl no responde dentro de 30 dlas, la corte puede decidir en su contra sin escuchar su rsiOn. Lea Ia informaci6n a
continuaciOn.
Tiene 30 DIAS DE CALENDARIO despuhs de que le entreguen esta citacidn y papeles legales para presentar una spuesta por escrito en esta
cotte y hacer que se entregue una copia al demandante. Una carta o una Ilamada telefdnica no lo protegen. Su respu sta por escrito tiene que estar
en formato legal correcto si desea que procesen su caso en la corte. Es posIble que haya un formulario que usted pu •a usar para su respuesta.
.sucorte.ca.gov), en la
Puede encontrar estos formularios de la corte y mhs informaciOn en el Centro de Ayuda de las Cortes de Califomla
biblloteca de leyes de su condado o en la corte que le quede mhs cerca. SI no puede pagar la cuota de presentacidn, pida al secretario de la corte .
que le dh un formulario de exenciOn de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso or incumplimiento y la corte le
podrh quitar su sueldo, dlnero y bienes sin más advertencia.
Hay otros requisitos legales. Es recomendable que Ilame a un abogado inmediatamente. Si no conoce a un aboga • • , puede Ilamar a un servicio de
remisidn a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servict s legales gratuitOs de un
programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de C lifomia Legal Services,
contacto con la corte o el
(www.lawhelpcalifomla.org), en el Centro de Ayuda de las Cortes de Califomla, (www.sucorte.ca.gov) o ponihndose
• oner un gravamen sobre
colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por
cualquler recuperacidn de $10,000 6 mhs de valor recibida mediante un acuerdo o una concesi6n de arbitraje en un • so de derecho civit Tiene que
pagar el gravamen de la corte antes de que la corte pueda desechar el caso.
The name and address of the court is: sc ,reA5u61,c„,-1•0
(E1 nombre y direcciOn de corte es):
fSAott.i5oSC
+ 5
fq
O(+
CASE NUMBER:
(NOme(o del Ceso):
V 2233 2 1
i5
The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is:
nombre, la direccibn y el nOmero de telbfono del abogado del demandante, o del demandante que no iene abogado, esp
7c, -1, c1 3
4-+\ C.5 e>4-L-ct. ‘Aa
C7;
tf ec.-i-k or
*)-N
ba
VR
DATEI
(Fecha)
co..4c e.1:51'd
2 7 ZU12 altemeazItkr
Clerk, by
(Secretario)
*
T31 ckve,r
1A-351, Deputy /6-/
(Adjunto)
(For proof of service of this summons, use Prodfg4ervice of Summons (foim POS-010).)
(Para prueba de entrega de esta citatiOn use el formulario Proof of Service of Summons, (POS-010)).
(SEAL]
NOTICE TO THE PERSON SERVED: You are served
as an individual defendant.
1. 2. = as the person sued under the fictitious name of (specify):
ft,,,
C,4 L
on behalf of (specify):
Co('` Pki v
7-06°9—Pck)
a-s.(910
Loa. qa9.41--c•T-DO
CCP 4 16.60 (minor)
under. t1 CCP 416.10 (corporation)
CCP 4 16.70 (conservatee)
CCP 416.20 (defunct corporation) CCP 416.40 (association or partnership) 1-1 CCP 4 16.90 (authorized person)
E1
fli
= other (specify):
4. = by personal delivery on (date):
Form Adopted for Mandatory Use
JudIdal Coundl of Califomia
SUM-100 PRev. July1. 20091
SUMMONS
Page I of 1
Code of Civil Procedure §§ 412.20, 485
www.coudirdasegov
www.accesslaw.com
2
3
4
5
Heather Gibson (SBN 240938)
Law Offices of Heather E. Gibson L.L.P
20398 Blauer Drive
Saratoga, CA 95070
(408) 359-1035
(408) 359-1102 (fax)
legal@basurgical.com
Attorneys for Plaintiff,
BAY AREA SURGICAL GROUP, INC.
npR 27 2011
6
7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SANTA CLARA
9
DOWNTOWN SUPERIOR COURT
10
LIMITED JURISDICTION 12
14
15
16
17
1
8
19
20
21
22
1 acv zz33
BAY AREA SURGICAL GROUP, INC. (A) Case No.
)
California corporation),
) PLAINTIFF BAY AREA SURGICAL
) GROUP, INC.'S COMPLAINT FOR
Plaintiff
) DAMAGES AGAINST DEFENDANT
AETNA LIFE 1NSURANCE COMPANY
V.
)
)
1) Breach of Contract
AETNA L1FE INSURANCE COMPANY (A)
2) California Business & Professions
Fo-reign Corporation), and DOES 1 through)
Code § 17200 et seq.
25, inclusive,
)
3) Negligent Misrepresentation
)
)
4) Promissory Estoppel
Defendants
)
5) Equitable Estoppel.
)
) DEMAND FOR JURY TRIAL
) DEMAND UNDER $10,000
)
)
23.
24
25
26
27
28
PLAINTIFF'S COMPLAINT FOR DAMACES
INTRODUCTION
2
1. This is an action for Breach Of Contract, for violations of California Business and
Professions Code § 17200 et seq., for Negligent Misrepresentation, Promisso
3
Estoppet, and Equitable Estoppel against Defendant AETNA LIFE 1NSURANC
COMPANY. ("AETNA").
5
6
2. By the allegations set forth herein, Plaintiff BAY AREA SURGICAL GROUP,INC.
7
California Corporation, ("BASG"), seeks damages for the difference between th
8
amount that AETNA paid BASG for surgical procedures performed, and the amoun
9
billed by BASG for those surgical procedures in addition to other damages, accordin
to proof at trial.
10
11
3. Pursuant to AETNA'S agreement with BASG, AETNA was required to pay 60% of th
12
cost of approved surgical procedures for out-of-contract providers, such as BASG.
13
4. Plaintiff BASG is now pursuing payment on its own behalf only, for the underpai
surgery by pursuing each Cause of Action against AETNA stated below.
14
.
15.
5.
Defendant AETNA failed to make full payment to BASG, and instead paid onl
16
$4204.80 of the billed $17,000, or approximately 25% rather than the 60% promised b
17
AETNA.
18
6. Plaintiff BASG is ignorant of the true names and capacities of defendants sued herei
19
as DOES 1-25, inclusive, and therefore sues defendants by such fictitious names;
20
Plaintiff BASG will amend this complaint to allege their true names and capacitie
21
when ascertained.
22
7. Plaintiff BASG is informed and believes and thereon alleges that, at all times heret
23
mentioned, each of the defendants sued herein was the agent and employee of each o1
24
the remaining defendants and was at all times acting within the purpose and scope oi
25
such agency and employment.
26
///
27
///
28
PLAINTIFF'S COMI'LAIN'r FOR DAMAGES
-2
JURISDICTION AND VENUE
2
3
4
8. This action arises under California law and the amount in controversy is less tha
$10,000.00, and therefore venue in an limited jurisdiction is appropriate.
9. Jurisdiction is proper pursuant to Cal. Civ. Proc. Code §§ 410.10, 410.50 and 1060.
10. Venue is proper in this judicial district pursuant to Cal. Civ. Proc. Code § 395.
6
11. This case is not pre-empted by Federal ERISA law, because Plaintiff has alleged direc
7
causes of action under California state law against its patient's insurer, AETNA, fo
8
breach of contract, negligent misrepresentation, promissory estoppel, breach of contrac
9
and equitable estoppel. Kurtz, Richard, Wilson & Co. Inc. v. Insurance Communicators
10
Marketing Corp. (1993) 12 Cal.App.4th 1249.)
THE PARTIES
11
12
12. Plaintiff, BASG, is, and at all times herein mentioned was, a California Corporation
13
organized and existing under the laws of the State of California with its principle place
14
of business located at 2222 Lafayette Street, Santa Clara, County of Santa Clara.
15
13. Plaintiff is informed and believes that Defendant AETNA both advertises for, and
16
conducts business on a continuous basis within the State of California, County of Santa
17
Clara.
18
14. The individual upon whom the surgery at issue was performed, identified by AETNA
19
Member 1D W177708909 (in compliance with the Federal Health Insurance Portability
20
and Accountability Act (H1PAA)) resides within the County of Santa Clara in the State
21
of California.
22
15. The surgery upon which this lawsuit is predicated was performed at the BASG center
23-
located in Santa Clara, California, which is managed by the Bay Area Surgical
24
Management, LLC., located in Santa Clara County California.
FACTUAL ALLEGATIONS
25
26
16. BASG is an ambulatory surgery facility located in Santa Clara, California.
27
17. One of BASG's patients, (identified by AETNA Member 1D No. W177708909 and
28
AETNA Claim ID.: ETTVSVHOHOO in order to preserve the patient's privacy in
PLAINTIFF'S COM PLA 1NT Fort DAMAGES
-3
compliance with HIPPA laws) hereafter referred to as "PAT1ENT" was scheduled for
surgery on .luly 26, 2011 at BASG. Dr. Valerie Traina was scheduled to perform the
surgery.
18. The surgery performed by Dr. Valerie Traina consisted of a left breast biopsy identified
.by HIPPS and Current Procedural Terminology (CPT) Codes: 0490.
19. The pATIENT was insured by AETNA.
20. Prior to the PATIENT's scheduled surgery, on July 26, 2011, Brooke a BASG
employee verified with an employee of AETNA via phone that pre-authorization was
not necessary for the surgery the PATIENT was scheduled to undergo. The same
AETNA employee then confirmed that the PAT1ENT was covered under AETNA
health insurance, and verified the terms of the PATIENT's insurance coverage. In
addition, BASG confirmed that the PATIENT was insured by AETNA online, in the
provider self-service-eligibility and benefits details portion of AETNA's web page.
This online verification further verified that AETNA would cover the PATIENT for at
least 60% of the billed price of procedures on the PATIENT by BASG an out of
network provider.
21. On July 26, 2011, Dr. Valerie Traina performed the PATIENT's surgery, as scheduled,
and exactly as described to the AETNA agent who stated that no pre-authorization was
necessary for the above-stated planned procedures.
22. Shortly following the PATIENT's surgery, BASG billed AETNA for the PAT1ENT's
procedure, however, AETNA failed to tender the amount due.
23. Thereafter, BASG contacted AETNA via written correspondence, sent on September 1,
2011, informing AETNA of the underpaid claim, and requesting that the claim be paid
as promised.
24. Thereafter, BASG contacted AE'TNA again via written correspondence, sent on 1-122012 informing AETNA of the underpaid claim, requesting that the claim be paid
according to the PATIENT's insurance benefits as promised, and informing it of
PLAINTIFF'S COMPLAINT FOR IMMAGES
-4
AETNA's intent to file suit in the event that no further payment was made within
2
fourteen (14) days of AETNA's receipt of BASG's correspondence.
25. To date, AETNA has refused to pay the contracted price for the PATIENT's surgical
4
procedures, therefore BASG has brought this instant action to recover the amount it is
5
owed.
FIRST CAUSE OF ACTION
(Breach of Contract Against Defendant AETNA)
26. Plaintiff incorporates by reference each and every allegation in the preceding
8
paragraphs.
9
27. On information and belief, on or about January 1, 2011, the PAT1ENT and Defendant
10
AETNA, entered into a written contract whereby AETNA agreed to tender payment in
11
the amount of 60% of the billed price for qualified surgical procedures.
12
28. Because BASG was an out-of-network provider at the time that the PATIENT's
13
surgery was performed, this agreement extended to those procedures performed at
14
BASG.
15
29. Prior to performing surgery on PAT1ENT, BASG contacted AETNA via phone in order
16
to verify that the scheduled surgical procedures would be considered "qualified" and
17
therefore covered by AETNA. AETNA verified the PATIENT was covered, and that
18
no pre-authorization was necessary for the scheduled procedures.
19
20
21
30. Accordingly, Plaintiff performed medically necessary surgery on the PATIENT, an
individual insured by AETNA.
31. Nevertheless, Defendant AETNA breached its contract as described in
Ttf
20, 21, 22,
22
and 23 of the instant complaint by failing and refusing to perform in good faith its
23
promise to honor the contracted agreement and to tender 60% of the billed amount
24
which was it's obligation or $8428.20 for services rendered.
25
32. As a result of the breach of Defendant AETNA, in the obligations pursuant to the
26
contract as described herein for the entire sum of $17,000 less the allowed amounts, or
27
$8428.20 is now due, owing and unpaid; Plaintiff has made numerous demands upon
28
Defendant for payment, but no further payment has been made.
PLAINTIFF'S COMPLAINT FOR DAMAGES
-5
1
33. To date, Defendant AETNA has failed and refused, and continues to fail and refuse to
2
tender full payment pursuant to the terms of its contract as described herein for the
3
$17,000.00 billed for the procedures at issue by Plaintiff BASG.
4
.
34. Defendant has therefore breached its contract with Plaintiff, who has been damaged
5
thereby in the sum of the difference between the amount allowed by AETNA, and the
6
amount outstanding, or $8428.20 plus interest at the legal rate from and after the date
7
due according to the proof, plus additional damages including the costs of this lawsuit
8
as stated below according to proof.
9
10
SECOND CAUSE OF ACTION
(California I3usiness & Professions Code 17200 et. seq. Against Defendant AETNA)
35. Plaintiff incorporates by reference each and every allegation in the preceding
11
paragraphs.
12
36. The Unfair Competition Act (UCA) California Business and Professions Code 17200 et
13
seq., prohibits any "unlawful, unfair or fraudulent business act or practices..."
14
37. In the instant case, AETNA unlawfully refused to honor the terms of its contrace
15
describe.d herein in violation of section §235(2) of the Restatement Second of
16
Contracts, and thus, giving rise to FOREST's claim to damages pursuant to California
17
Civil Code section §3300 et seq.
18
38. Defendant AETNA, further illegally attempted to persuade Plaintiff into agreeing to
19
take less than the contracted amount for services rendered, on numerous occasions, in a
20
bad faith attempt at settlement, in violation of California 1nsurance code § 790.03 and
21
also in contravention of Califomia Business and Professions code §17200. et seq.
22
39. Defendant AETNA did nothing to correct the apparent illegalities in attempting to
23
persuade Plaintiff BASG to settle for a lower amount than what it owed, and instead,
24
verified those illegalities by doing nothing in response to BASG 's repeated requests for
25
appropriate payment.
26
40. Further, there has been no response from DEFENDANT to PlaintifPs written demand
27
sent on January 12, 2012, and therefore, AETNA has further violated California Ins.
28
Code §790.03 by faiIing to respond within the applicable (30) day time period.
PLAINTIFF'S COMPLAINT 1012 DAMACES
-6
41. By engaging in unlawful conduct pursuant to California Civil Code §3300 that violates
.
2
the parameters set forth in the Restatement Second of Contracts §235(2), by making
3
misrepresentations with respect to authorization given for the PAT1ENT's surgical
4
procedures and the percentage of the authorized amount that would be paid, and for
5
violations of insurance code §790.03, AETNA is engaging in unlawfu1 business
6
practices and is in violation of Business and Professions code §17200 et seq.
7
8
9
10
11
1.2
13
14
15
16
17
1.8
19
20
21
THIRD CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION
(Against Defendant AETNA)
42. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
43. Defendant AETNA owed a duty to Plaintiff BASG to give it accurate statements of fact
with respect to the pre-authorization of surgery scheduled to be performed on the
BASG PATIENT insured by AETNA.
44. Defendant AETNA made an incorrect statement to BASG through its agent, that "no
pre-authorization was necessary" for the surgery that the PAT1ENT was scheduled to
undergo on July 26, 2011.
45. The AETNA employee and agent who made this statement either knew, or should have
known, that making this statement to the BASG employee who had called for preauthorization would cause that BASG employee to rely on that statement and go
forward with the surgery with the understanding that AETNA did not need to expressly
authorize it.
46. BASG justifiably relied on AETNA's misrepresentations as set forth above, and went
22
23
24
25
forward with the procedure, reasonably expecting to be reimbursed at the very least in
the amount of 60% of the billed price of the surgery pursuant to the express statements
from AETNA, that out-of-network providers, such as BASG would be paid at least
60% of the billed amount.
26
27
47. ln the event that the AETNA representative had told BASG that it would not authorize
its insured's scheduled procedure for any reason, or refused to give pre-authorization
28
PLAINTIFF'S COMI'LAINT FOR DAMACES
-7
for any reason, then BASG would not have gone forward with the PATIENT's surgery
2
as scheduled.
3
48. As a direct and proximate cause of the misrepresentation made to BASG, BASG went
4
forward with the PATIENT's surgery, and payment was not made at the contracted for
5
amount, and therefore BASG suffered damages as a result of its reliance upon
6
AETNA's misleading and incorrect statements.
7
8
49. As a direct and proximate cause of BASG's justifiable reliance upon AETNA's
misrepresentations, BASG suffered loss according to proof at trial.
9•
FOURTH CAUSE OF ACTION FOR PROMISSORY ESTOPPEL
(Against Defendant AETNA)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
50. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
51. Defendant AETNA made a clear and definite promise to BASG when BASG contacted
AETNA, gave AETNA specific information regarding procedures to be performed,
prior to the PATIENT's surgery, and requested verification that either pre-authorization
would be given to BASG, or that no-preauthorization was necessary for the procedures
stated.
52. AETNA responded to BASG's request by expressly stating that "no pre-authorization
was necessary" for the procedure codes given. Therefore, BASG, as an out-of-network
provider would be paid for at least 60% of the billed amount for the PATI ENT's
procedure. (Detailed in Exhibit A attached hereto). Therefore, BASG went forward
with the PATIENT's scheduled surgery in reliance on AETNA's statement.
53. AETNA made the above-mentioned promise that no pre-authorization was necessary
for the PATIENT's scheduled surgery with the expectation that BASG would rely on
that promise, and would go forward with the PATIENT's surgery as scheduled.
54. lt was foreseeable that BASG would proceed with the PAT1ENT's surgery, as
scheduled, based on AETNA's assurance that "no pre-authorization was necessary"
prior to the time that the surgery was performed.
PLAINTIFT'S COMPLAINT FOR DAMAGES
-8
1
55. BASG reasonably relied upon AETNA's promise that no pre-authorization was
2
required, and given for the PATIENT's surgery, and therefore went forward with the
3
PATIENT's surgery as scheduled.
4
56. BASG suffered a detriment of a definite and substantial nature as a result of its
5
reasonable reliance upon AETNA's above stated promise in that it was not reimbursed
6
at the contracted rate for the services rendered to the PATIENT, and in fact, was paid
7
less than 25% of the cost of the billed surgical procedures performed.
8
9
10
11
FIFTH CAUSE OF ACTION FOR EQU1TABLE ESTOPPEL
(Against Defendant AETNA)
57. Plaintiff incorporates by reference each and every allegation in the preceding
paragraphs.
12
58. AETNA had been advised, prior to the date of the PATIENT's surgery, that BASG had
13
scheduled surgery for that PATIENT, and had expressly explained to AETNA what tha
14
surgery would consist of, therefore AETNA had been advised of all relevant facts prior
15
to the PATIENT's surgery.
16
59. AETNA was aware that, and intended for, BASG to proceed with the PATI ENT's
17
surgery, as scheduled, and AETNA's intentions were supported by its refusal to explain
18
to BASG that it would not cover any portion of the PATIENT's procedure at the agreed
19
upon contracted rate of 60% or more of the billed procedure's price. As such, AETNA's
20
actions and omissions were reckless and malicious.
21
22
60. BASG was ignorant of the true facts, specifically that AETNA had decided not to cover
the PATIENT's scheduled surgical procedure at the rate of 60% or more.
23
61. BASG relied, to its detriment upon AETNA's statement that, "no pre-authorization was
24
necessary" in moving forward with the PATIENT's surgical procedure as scheduled,
25
instead of cancelling it. BASG therefore lost a significant amount of money, in having
26
to complete the PATIENT's surgery, pay for all of the cost and labor associated with
27
that surgery, and then to be paid Iess than 25% of the billed price of that surgery.
28
Consequently, BASG has changed its position for the worse in its good faith reliance
PLAINTIFF'S COMPLAINT FOR DAMAGES
_9
upon AETNA's negligent misrepresentations with respect to payment for the
PAT1ENT's procedure.
PRAYER FOR REL1EF
WHEREFORE, Plaintiff prays for declaratory relief and judgment as follows:
1)
That defendant AETNA must pay to plaintiff the amount of $8428.20 plu
interest at the legal rate accruing from the date of breach;
2)
Pre-judgment and post-judgment interest as allowed by law;
3)
Costs According to proof; and
4)
Such other and further legal and equitable relief as the Court deems jus
and proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury.
DATED: 4/18/2012
LAW OFFICES OF HEAT ER E. G1BSON, LLP.
By:
EATH R E. GIBSON
Attorneys for Plaintiff Bay Area Surgical Group, Inc.
PLAINTIFF'S COMPLAINT FOR DAMAGES
- 10
EXHIBIT A
EXHIBIT A
No. 2465
P. 2/21
BAY AREA SURGICAL GROUP
Insurance Verification Fortn
Patient Name:
Procedure/ Comments:
Physician Na-ne:
DOS: f-i- Vweas-1-- bior.1
Employer Name: Employer Address: Workers Comp: Y N Date of Injury:
Auth #: Adjuster'S Name:
Worlc Phone:
Claim #: Phone:
Insurance CornpanyName: Aetna Ph ne: 808-632-3862
Claims Address: PO Box 14079
40S12
KY Lexington State: City: Subscriber (if differe,nt fr,om patient): Relationship to Patient: Subscriber DOB: _
Patients S.S #: Subscribers S.S #:
-c7 Oc3.702)
Patients DOB; _ ID #: Vu i -17 .701M1 Group #: -3019
rt
Phone: Insurance Company Name: Claims AddreSs: State: City: Subscriber (if different from patient): Relationship to Patient: Subscriber D013: Patients S.S #: Subscribers S.S#: Group tt;
Patients DOB: ID#: Called By:
Effective Date; ) 11
In Network:
Date Called:
Contracted: Y
Co-Pay: $
t:
Amount met:
00P
f
cx)
f 7006
6/0
(00 /0
Pen
Met
e
DUE FROM PATIENT
Procedure/CPT.
Lt.0
Co-Ins: 110 To
0
I\VA
Ins. Covers
IN
OUT
0
Deductible: $
Auth #:
Benefit/ Coverage Comments:
co.
Co-Ins:
Deductible: $ Co-Pay: $ dr°
Pre-Auth Required: Y
0
Zip:
Verified With:P h((ifie
/ .5" (If not contratted obtain both In and Out of ne
Amount met:
Out-of-NetworIt:
0 13
$
Lt
Dally Max:
DUE FOR ANESTHESIA
CM-01 0
ATTORNEY 04 PARTY VVITHOUT ATTORNEY (Name, State Ber number, end address):
—
Heather E. Gibson (SBN240938)
Law Offices of Heather E. Gibson
20398 Blauer Drive, Saratoga, CA 95070
TELEPHONE NO.: 408-359-1035
ATTORNEY FOR (Neme): Plaintiff
FOR COURT USE ONLY
(
FAX NO.:
,....
.._
408-359-1102
Bay Area Surqical Group Inc.
rill
EAP ii 27
SUPERIOR COURT OF CALIFORNIA, COUNTY OF Sallta Ciala
STREET ADDRESS: 191
MAILING ADORESS:
N. First Street
:g:j
San Jose, CA 95113
BRANCH NAME: Su p erior .
CASE NAME: Bay Area Surgical Group, Inc. v Aetna Life Ins Co
CITY AND ZIP CODE:
CIVIL CASE COVER SHEET
lIM Limited
.Unlimited
(Amount
(Amount
demanded
demanded is
exceeds $25,000)
$25,000 or less)
F -. .. ,„
C
-
••• .. s'.:, Z.,:x.::1 Cal
;::::. ,
U;:..7.4
.
?Y:
r
CASE NUMBER:
Complex Case Designation
Joinder
Counter
Filed with first appearanc,e by defendant
(Cal. Rules of Court, rule 3.402)
1
.
JUDGE:
DEPT:
Items 1-6 below must be completed (see Instructtons on page 2).
1. Check one box below for the case type that best describes this case:
Contract
Auto Tort
LI Auto (22)
I ./ 1 Breach of contract/warranty (06)
= Uninsured motorist (46)
Other Pl/PD/WD (Personal Injury/Property
DamageNVrongful Death) Tort
= Asbestos (04)
= Product liabaity (24)
= Medical malpractice (45)
= Other PI/PD/WD (23)
Non-PI/PD/WD (Other) Tort
Business tort/unfair business practice (07)
LI Civil rights (08)
Defamation (13)
Fraud (16)
Intellectual property (19)
= Professional negligence (25)
1-1 Other non-PI/PD/WD tort (35)
LI
LI
p_neloymio
I
Wrongful termination (36)
Other employment (15)
Rule 3.740 collections (09)
Other collections (09)
Insurance coverage (18)
Other contract (37)
Real Property
Eminent domaIn/Inverse
condemnation (14)
Wrongful eviction (33)
Other real property (26)
Unlawful Detainer
= Commercial (31)
= Residential (32)
= Drugs (38)
Judicial RevIew
= Asset forfeiture (05)
= Pelition re: arbitralion award (11)
Writ of mandate (02)
Provisionally Compl x Civil Litigation
(Cal. Rules Qf Court, rules 3.400-3.403)
Antitrustarade regulation (03)
LI Construction d fect (10)
LI Mass tort (40)
LI Securities litig tion (28)
LI EnvIronmental oxic tort (30)
Insurance cov rage claims arising from the
LI above
listed p visionally complex case
types (41)
Enforcement of Jud ment
= Enforcement o judgment (20)
Miscellaneous Civil omplaint
= RICO (27)
= Other complai t (not specified above) (42)
MiscelIaneous Civil Petition
Partnership an. corporate govemance (21)
1-1 Other petition not specified above) (43)
LI
1-1 Other judicial review (39)
is not complex under rule 3.400 of the Califomia Rules of Court. If the ase is complex, mark the
2. This case = is
I
factors requiring exceptional judicial management:
d = Large number of witnesses
a. = Large number of separately represented parties
e. = Coordination with related action pending in one or more court
Extensive
motion
practice
raising
difficult
or
novel
b
in other counties, states, or cou tries, or in a federal court
issues that will be time-consuming to resolve c. = Substantial amount of documentary evidence f = Substantial postjudgment judici I supervision
c.npunitive
—n monetary bj7J nonmonetary; declaratory or injun tive relief
Remedies sought (check all that apply): a. k
Number of causes of action (specify): (5) Breach of Cont; CA B&P Code 17200; Negl Misrep; romisy Estop; Equi Estop
is
117-1 is not a class action suit.
This case Ifthere are any known related cases, file and serve a notice of related case. (You may use form CM-
3.
4.
5.
6.
Date: April 19, 2012
Heather E. Gibson
SIGNA URE OF PARTY 0 A TORNEY FOR PARTY)
(TYPE OR PRINT NAME)
•
•
•
•
NOTICE
Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small cl
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.
in sanctions.
File this cover sheet in addition to any cover sheet required by local court rule.
If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a cop
other parties to the action or proceeding.
Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for
Forrn Adopted for Mandatory Use
JudIcIal Council of Califonta
CM-010 [Rev. Juiy 1, 20071
CIVIL CASE COVER SHEET
ims cases or cases filed
20.) Failure to file may result
of this cover sheet on all
tatistical purposes only.
Papel of 2
Cal. Rules Court, rules 2.30, 3.220, 3.400-3.403 : 3.740:
Cal. tandards of Judlcial Administralion, std. 3.10
rnvw.courtinfo.ce.gov
www.accesslaw.com
CM-010
INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET
To Plaintiffs and Others Filing FIrst Papers. If you are filing a first paper (for example, a complai t) in a civil case, you must
complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This infor ation will be used to compile
statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the she . ln item 1, you must check
one box for the case type that best describes the case. If the case fits both a general and a more specifi type of case listed in itern I,
check the more specific one. If the case has multipte causes of action, check the box that best indicates the primary cause of action.
To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover
sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a c vil case may subject a party,
its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.
To Parties in Rule 3.740 CollectIons Cases. A "collections case" under rule 3.740 is defined as an ction for recovery of money
owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees arising from a transaction in
which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort
damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, r (5) a prejudgment writ of
attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general
time-for-service requirements and case management rules, unless a defendant files a responsive plead ng. A rule 3.740 collections
case will be subject to the requirements for service and obtaining a judgment in rule 3.740.
To Parties in Complex Cases. ln complex cases only, parties must also use the Civil Case Cover S eet to designate whether the
case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of C urt, this must be indicated by
completing the appropriate.boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover heet must be served with the
complaint on all parties to the action. A defendant may file and serve no later than the time of its firs appearance a joinder in the
plaintifrs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no signation, a designation that
the case is complex. Auto Tort
Auto (22)—Personal Injury/Property
Damage/Wrongful Death
Uninsured Motorist (46) (if the
case involves an uninsured
motorist claim subject to
arbitration, check this item
instead of Auto)
Other PI/PD/WD (Personal Injury/
Property Damage/Wrongful Death)
Tort
Asbestos (04)
Asbestos Property Damage
Asbestos Personal Injury/
Wrongful Death
Product LIabllity (not asbestos or
toxic/envIronmental) (24)
Medical Malpractice (45)
Medical MalpracticePhysicians & Surgeons
Other Professional Health Care
Malpractice
Other PUPD/VVD (23)
Premises Liability (e.g., slip
and fall)
Intentional Bodily Injury/PD/WD
(e.g., assault, vandalism)
Intentional Inffiction of
Emotional Distress
Negligent Inffiction of
Emotional D1stress
Other PUPD/VVD
Non-PI/PD/WD (Other) Tort
Business Tort/Unfair Business
Practice (07)
Civil Rights (e.g., discrimination,
false arrest) (not civil
harassment) (08)
Defamation (e.g., slander, fibel)
(13)
Fraud (16)
Intellec,tual Property (19)
Professional Negllgence (25)
Legal Malpractice
Other Professional Malpractice
(not medical or legal)
Other Non-PI/PDNVD Tort (35)
Employment
Wrongful Termination (36)
Other Employment (15)
CASE TYPES AND EXAMPLES
Contract
Breach of ContractNVarranty (06)
Breach of Rental/Lease
Contract (not unlawful detainer
or wrongful eviction)
ContractNVarranty Breach—Seller
PlaIntiff (not fraud or negllgence)
Negfigent Breach of Contract/
Warranty
Other Breach of Contract/Warranty
Collections (e.g., money owed, open
book accounts) (09)
Collection Case—Seller Plaintiff
Other Promissory Note/Collections
Case
Insurance Coverage (not provisionally
complex) (18)
Auto Subrogation
Other Coverage
Other Contract (37)
Contractual Fraud
Other Contract Dispute
Real Property
Eminent Domain/Inverse
Condemnation (14)
Wrongful Eviction (33)
Other Real Property (e.g., quIet title) (26)
Writ of Possession of Real Property
Mortgage Foreclosure
Quiet Tille
Other Real Property (not eminent
domain, landlord/tenant, or
foreclosuns)
Unlawful Detalner
Commercial (31)
Residential (32)
Drugs (38) (if the case involves illegat
drugs, check this item; otherwise,
report as Commercial or Residential)
Judicial RevIew
Asset Forfelture (05)
Petition Re: Arbitration Award (11)
Writ of Mandate (02)
Writ—Administrative Mandamus
Writ—Mandamus on Limited Court
Case Matter
Writ—Other Limited Court Case
Review
Other Judicial Review (39)
Review of Health Officer Order
Notice of Appeal—Labor
Commissioner
eals
ProvIslonal1 Complex ClvIl LItIgatIon (Cal.
Rules of Co rt Rules 3.400-3.403)
rade Regulation (03)
Antitru
Const ction Defect (10)
Claims nvolving Mass Tort (40)
Securiti s Litigation (28)
Enviro mental/Toxic Tort (30)
•
Coverage ClaIms
Insura
(a •ng from provisionally complex
ca e type listed above) (41)
Enforceme t of Judgment
Enfor ment of Judgment (20)
Ab tract of Judgment (Out of
County)
Co fession of Judgment (nondomestic relations)
Sis er State Judgment
Ad inistrative Agency Award
not unpaid taxes)
Pe ition/Certification of Entry of
udgment on Unpaid Taxes
O er Enforcement of Judgment
Case
Miscellane us Civil Complaint
RICO ( 7)
Other lomplaint (not specified
ab ve) (42)
De laratory Relief Only
Inj nctive Relief OnIy (nonharassment)
M chanics Lien
O er Commercial Complaint
Case (non-tottlnon-complex)
O er Civil Complaint
(non-tort/non-complex)
Miscellan ous Civil Petition
Partne hip and Corporate
G vemance (21)
Other etition (not specified
ab ve) (43)
C1 ii Harassment
W rkplace Violence
El erlDependent Adult
Abuse
El cAion Contest
Pe ition for Name Change
Pe ition for Relief From Late
Claim
Ot er Civil Petition
ATTA HMENT CV-5012
CIVIL LAWSU1T NOTICE
Superior Court of California, County of Santa Clara
191 N. First St, San Jose, CA 95113
CASE NUMBER:
w
3
PLEASE READ THIS ENTIRE FORM
PLAINTIFF (the person suing): Within 60 days after filing the lawsuit, you must serve each Defendant with the Complaint,
Summons, an Altemative Dispute Resolution (ADR) Information Sheet, and a copy of this Civil Lawsuit Notice, and you must file
written proof of such service.
DEFENDANT (The person sued): You must do each of the following to protect your rights:
You must file a written response to the Complaint, using the proper legal form or format, in the Clerl, 's Office of the
Court, within 30 days of the date you were served with the Summons and Complaint,
You must serve by mail a copy of your written response on the Plaintiffs atiorney or on the Plaintiff if Plaintiff has no
attomey (to "serve by mail" means to have an adult other than yourself mail a copy); and
You must attend the first Case Management Conference.
1.
2.
3.
Waming: If you, as the Defendant, do not follow these instructions,
you may automatically lose this case.
RULES AND FORMS: You must follow the Califomia Rules of Court and the Superior Court of Califomia, ounty of Santa Clara
Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive form , free of charge, from
the Self-Help Center at 99 Notre Dame Avenue, San Jose (408-882-2900 x-2926), www.scselfservice.orq (S lect "Civil") or from:
•
•
State Rules and Judicial Council Forms: www.courlinfo.ca.00v/forms and wvwv.courtinfo.ca.00v/rul s
Local Rules and Forms: http://www.sccsuperiorcourtoro/civil/rule1toc.htm
CASE MANAGEMENT CONFERENCE (CMC): You must meet with the other parties and discuss the case, in person or by
telephone, at least 30 calendar days before the CMC. You must also fill out, file and serve a Case Manage ent Statement
(Judicial Council form CM-110) at least 15 calendar days before the CMC.
You or your attomey must appear at the CMC. You may ask to appear by telephone— see Loc
Your Case Management Judge is: Honorable Pet er Kirwan
Departme t:
Time: 3 : 00 Pm
in Department
The next CMC Is scheduIed for: (Completed by party if the 1 st CMC was continued or has passed)
Date:
8
"
The 1st CMC Is scheduled for: (Completed by Clerk of Court)
Date: SEP 4..- 2012
Civil Rule
Time:
in DepartmenI:
8
7
ALTERNATIVE DISPUTE RESOLUTION (ADR): lf all parties have appeared and filed a completed ADR Stipulation Form (local
form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an A R Status Conference.
Visit the Court's website at www.sccsuDeriorcoutorgicivil/ADRI or call the ADR Administrator (408-882-2 00 x-2530) for a list of
ADR providers and their qualifications, services, and fees.
WARNING: Sanctions may be imposed if you do not follow the Califomia Rules of Court or the Local Rules if Court.
CIVIL LAWSUIT NOTICE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA C ARA
ALTERNATIVE DISPUTE RESOLUTION
INFORMATION SHEET / CIVIL DIVISION
Many cases can be resolved to the satisfaction of all parties without the necessity of traditional litigation, which be expensive,
time consuming, and stressful. The Court finds that it is in the best interests of the parties that they participate in Iternatives to
traditional litigation, including arbitration, mediation, neutral evaluation, special masters and referees, and settlervent conferences.
Therefore, all matters shall be referred to an appropriate form of Altemative Dispute Resolution (ADR) before th -y are set for trial,
unless there is good cause to dispense with the ADR requirement.
What ADR?
ADR is the general term for a wide variety of dispute resolution processes that are altematives to litigation. Type of ADR
processes include mediation, arbitration, neutral evaluation, special masters and referees, and settlement conferences, among others
forms.
What are the advantages of choosing ADR instead of litigation?
ADR can have a number of advantages over litigation:
< ADR can save time. A dispute can be resolved in a matter of months, or even weelcs, while litigation can take years.
< ADR can save money. Attomey's fees, court costs, and expert fees can be reduced or avoided altogether.
< ADR provides more participation. Parties have more opportunities with ADR to express their interests and concems, instead of
focusing exclusively on legat rights.
< ADR provides more control and flexibility. Parties can choose the ADR process that is most likely to bring a satisfactory
resOtution to their dispute.
< ADR can reduce stress. ADR encourages cooperation and conununication, while discouraging the adversarial atmosphere of
litigation. Surveys of parties who have participated in an ADR process have found much greater satisfaction than with parties who
have gone through litigation.
What are the main forms of ADR offered by the Court?
< Mediation is an informal, confidential, flexible and non-binding process in the mediator helps the parties-to urderstand the
interests of everyone involved, and their practical and legal choices. The mediator helps the parties to ornmunicate better,
explore legal and practical settlement options, and reach an acceptable solution of the problem. The mediator does not
decide the solution to the dispute; the parties do.
< Mediation may be appropriate when:
< The parties want a non-adversary procedure
< The parties have a continuing business or personal relationship
< Communication problems are interfering with a resolution
< There is an emotional element involved
< The parties are interested in an injunction, consent decree, or other forin of equitable relief
< Neutral evaluation, sometimes called "Early Neutral Evaluation" or "ENE", is an informal process in which the evaluator, an
experienced neutrat lawyer, hears a compact presentation of both sides of the case, gives a non-binding assessment of the
strengths and weaknesses on each side, and predicts the likely outcome. The evaluator can help parties to identify issues,
prepare stipulations, and draft discovery plans. 'The parties may use the neutral' s evaluation to discuss settlement.
—
Neutral evaluation may be appropriate when:
< The parties are far apart in their view of the law or value of the case
< The case involves a technical issue in which the evaluator has expertise
< Case planning assistance would be helpful and would save legal fees and costs
< The parties are interested in an injunction, consent decree, or other form of equitable relief
-over-
ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET/ CIVIL DIVISION
CV-5003 REV 6/08
< Arbitration is a less formal process than a trial, with no jury. The arbitrator hears the evidence and argumen s of the parties,.then
makcs a written decision. The parties can agree to binding or non-binding arbitration. In binding arbit ation, the
arbitrator's decision is final and completely resolves the case, without the opportunity for appeal. 1n n n-binding
arbitration, the arbitrator's decision could resolve the case, without the opportunity for appeal, unless party timely
rejects the arbitrator's decision within 30 days and requests a trial. Private arbitrators afe allowed to c arge for their time.
Arbitratiorf may be appropriate wheo:
< The action is for personal injury, property damage, or breach of contract
< Only monetary damages are sought
< Witness testimony, under oath, needs to be evaluated
< An advisory opinion is sought from an experienced litigator (if a non-binding arbitration)
< Civil Judge ADR allows parties to have a mediation or settlement conference with an experienced judge of t
Mediation is an informal, confidential, flexible and non-binding process in which the judge helps the parties to
interests of everyone involved, and their practical and legal choices. A settlement conference is an inforrnal pro
judge meets with the parties or their attomeys, hears the facts of the dispute, helps identify issues to be resolve
suggests a resolution that thc partics may accept or use as a basis for further negotiations. The request for medi
conference may be made proniptly by stipulation (agreement) upon the ftling of the Civil complaint and the ans
charge for this service.
e Superior Court.
nderstand the
ess in which the
and normally
tion or settlement
er. There is no
Civil Judge ADR may be appropriate when:
< The parties have complex facts to review
< The case involves multiple parties and problems
< The courthouse surroundings would he helpful to the settlement process
< Special masters and referees are neutral parties who may be appointed by the court to obtain information or to make specific
fact findings that may lead to a resolution of a dispute.
Special masters and referees can be particularly effective in complex cases with a number of parties, like const
ction disputes.
< Settlement conferences are informal processes in which the neutral (a judge or an experienced attomey) me ts with the parties or
their attomeys, hears the facts of the dispute, helps identify issues to be resolved, and normatly suggests a resol tion that the parties
may accept or use as a basis for further negotiations.
Settlement conferences can be effective when the authority or expertise of the judge or experienced attorney m y help the parties
reach a resolution.
What kind of disputes can be resolved by ADR?
Although some disputes must go to court, almost any dispute can be resolved through ADR. This includes disp
business matters; civil rights; collections; corporations; construction; consumer protection; contracts; copyrigh
disabilities; discrimination; employment; environmental problems; fraud; harassment; health care; housing; ins
property; labor; landlord/tenant; media; medical malpractice and other professional negligence; neighborhood
partnerships; patents; personal injury; probate; product liability; property ciamage; real estate; securities; sports
wrongful death, among other matters.
tes involving
; defamation;
rance; intellectual
roblems;
trade secret; and
Where catt you get assistance tvith selecting an appropriate fortn of ADR and a neutratfor your case, infor ation about ADR
procedures, or-anstvers to other questions about ADR?
Contact:
Santa Clara County Superior Court ADR Administrator
408-882-2530
Santa Clara County
408-792-2910
RPA Coordinator
ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET/ CIVIL DIVISI N
CV-5003 REV 8/08