1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 ALEK ROIS-MENDEZ, Case No. 20-cv-02227-MMC

8 Plaintiff, ORDER DENYING DEFENDANT'S 9 v. MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT 10 CALIFORNIA PHYSICIANS' SERVICE DBA BLUE SHIELD OF CALIFORNIA, 11 Defendant. 12 13 Before the Court is defendant California Physicians’ Service dba Blue Shield of 14 California’s (“Blue Shield”) Motion, filed October 28, 2020, “to Dismiss Plaintiff’s First 15 Amended Complaint.” Plaintiff Alek Rois-Mendez (“Rois-Mendez”) has filed opposition, 16 to which Blue Shield has replied. Having read and considered the papers filed in support 17 of and in opposition to the motion, the Court rules as follows.1 18 BACKGROUND2 19 At all relevant times, Rois-Mendez was an enrolled Subscriber in a “group 20 employee welfare benefit plan” (“the Plan”) administered by Blue Shield. (See FAC 21 ¶¶ 12-14.) In 2019, Rois-Mendez was diagnosed with parotid gland cancer,3 after which 22 a team of treating physicians at Cedars-Sinai Samuel Oschin Comprehensive Cancer 23 Institute (“Cedars-Sinai”) determined proton beam radiation therapy (“PBRT”)4 “was the 24 1 By order filed January 19, 2021, the Court took the matter under submission. 25 2 The following facts are taken from the operative complaint, the First Amended 26 Complaint (“FAC”). 27 3 Parotid gland cancer is “cancer of the salivary gland.” (See FAC ¶ 16.) 1 best course of treatment for [him]” and referred him to California Protons Cancer Therapy 2 Center (“California Protons”) for that treatment. (See id. ¶¶ 1, 9, 16, 17.) 3 On June 10, 2019, California Protons submitted, to Blue Shield, a Request for 4 Prior Authorization for Rois-Mendez’s PBRT treatment, which request Blue Shield denied 5 on the ground that PBRT is “investigational.” (See FAC ¶¶ 18-20 (internal quotation and 6 citation omitted).) On July 1, 2019, Rois-Mendez and California Protons submitted, to 7 Blue Shield, a request for expedited appeal of its denial of prior authorization, which 8 request Blue Shield denied, and, on August 8, 2019, California Protons received a letter 9 from Blue Shield, dated August 2, 2019, “wherein Blue Shield upheld its denial of [Rois- 10 Mendez’s] request for PBRT ‘because [his] health plan specifically exclude[d] benefits for 11 services that are experimental or investigational.’” (See id. ¶¶ 21-22, 24 (quoting id. Ex. 12 C).) “Meanwhile, due to medical exigency,” Rois-Mendez began his PBRT treatment with 13 California Protons and paid for that treatment “out-of-pocket” (see id. ¶¶ 23, 47), after 14 which, on January 23, 2020, he submitted, to Blue Shield, a post-service claim for his 15 out-of-pocket payments (see id. ¶¶ 23, 25). As of the date the FAC was filed, April 3, 16 2020, Rois-Mendez has not received any response from Blue Shield regarding his post- 17 service claim. (See id. ¶ 27.) 18 Based on the above, Rois-Mendez asserts, pursuant to the Employee Retirement 19 Income Security Act of 1974 (“ERISA”), two Causes of Action, titled, respectively, “Denial 20 of Plan Benefits Under ERISA” and “Equitable Relief.” 21 DISCUSSION 22 A. Motion to Dismiss 23 In its Motion to Dismiss, Blue Shield argues the FAC is subject to dismissal, 24 pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject 25 matter jurisdiction. Specifically, Blue Shield argues, Rois-Mendez lacks standing to bring 26 that, when PBRT is administered, “protons deposit much of their radiation directly in the 27 tumor and then stop,” thereby allowing patients to receive higher doses of radiation “while 1 the instant claims because, contrary to the allegations in the FAC, Blue Shield has 2 already paid California Protons “for the majority of the PBRT [he] has received,” and has 3 denied the “small number of remaining unpaid claims . . . for reasons other than the 4 investigative/experimental exclusion.” (See Mot. at 1:9-14 (emphasis omitted); see also 5 Mot. at 2:25-27.) In support of such argument, Blue Shield submits numerous 6 “Explanations of Benefits,” which provide information as to Blue Shield’s review and 7 processing of the claims submitted by California Protons. (See Decl. of Leslie Crawford 8 ¶¶ 4-5, Exs. A & B.) 9 “Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” See White v. 10 Lee,

(9th Cir. 2000). In a facial attack, “the challenger asserts that 11 the allegations contained in a complaint are insufficient on their face to invoke federal 12 jurisdiction.” See Safe Air for Everyone v. Meyer,

(9th Cir. 2004). 13 In a factual attack, such as the one made here by Blue Shield, “the challenger disputes 14 the truth of the allegations that, by themselves, would otherwise invoke federal 15 jurisdiction.” See

In resolving a factual attack on jurisdiction, “the district court may 16 review evidence beyond the complaint without converting the motion to dismiss into a 17 motion for summary judgment,” and “[t]he court need not presume the truthfulness of the 18 plaintiff's allegations.” See

The party opposing the motion bears the burden of 19 establishing subject matter jurisdiction, and, once the moving party has submitted 20 declarations or other admissible evidence, the party opposing the motion must submit 21 evidence sufficient to satisfy that burden. See id.5 22 To establish Article III standing, a plaintiff must have “suffered an injury in fact” that 23 is “fairly traceable to the challenged conduct” and is “likely to be redressed by a favorable 24 judicial decision.” See Spokeo, Inc. v. Robins,

(2016). Here, Blue 25 Shield, relying on the first two requirements, argues Rois-Mendez “has not suffered any 26

27 5 In this instance, Rois-Mendez has attached exhibits to the FAC and, in response 1 injury alleged in the FAC” and has not alleged the requisite “causation” (see Mot. at 6:1, 2 6:18), because, as noted, it assertedly has paid California Protons for the majority of 3 Rois-Mendez’s PBRT and, to the extent it denied payment, it was for reasons other than 4 the reason alleged in the FAC. Blue Shield does not, however, dispute Rois-Mendez’s 5 allegation or supporting evidence that it initially denied prior authorization for Rois- 6 Mendez’s PBRT treatment or that it did so on the basis that such treatment is 7 “investigational,” nor does it dispute that it later upheld such decision on appeal. (See 8 FAC ¶¶ 19, 24; Decl. of Alek Rois-Mendez (“Rois-Mendez Decl.”) ¶ 2; Decl. of Timothy J. 9 Rozelle (“Rozelle Decl.”) Ex. G at 8.)6 Similarly, there is no dispute that Rois-Mendez 10 paid California Protons directly for his PBRT treatment,7 and that, as of the date of the 11 FAC, he had not received from Blue Shield a response to his post-service claim nor any 12 reimbursement from Blue Shield for the costs of his PBRT treatment. (See Rois-Mendez 13 Decl. ¶¶ 2-3, 6, 9.) The undisputed facts thus show, contrary to Blue Shield’s assertions, 14 Rois-Mendez has suffered an injury, specifically, out-of-pocket payments for his PBRT 15 treatment, and that such injury is “fairly traceable” to Blue Shield’s above-described 16 conduct as well as “likely to be redressed by a favorable judicial decision.” See Spokeo, 17

. 18 Accordingly, the Court will deny Blue Shield’s Motion to Dismiss. 19 B. Rois-Mendez’s Request for Leave to Amend FAC 20 In his opposition to the instant motion, Rois-Mendez requests leave to amend the 21 FAC to add two causes of action, namely, “intentional interference with contractual 22 6 The page numbers for exhibits attached to the FAC and declarations submitted in 23 connection with the instant motion, as used herein, are those affixed to the top of each page by this district’s electronic filing program. 24 7 Blue Shield’s argument that such payment is “irrelevant,” because “ERISA 25 provides for recovery of benefits due under a plan . . . not damages” (see Mot. at 6 n.4 (emphasis omitted)), is unavailing, given that the Plan expressly requires payments for 26 services obtained from a non-Plan provider to be made “directly to the Subscriber” (see FAC Ex. A at 116), and Blue Shield does not dispute California Protons’ status as a non- 27 Plan provider (see Rozelle Decl. Ex. G at 45). In other words, Rois-Mendez did not 1 relations” and “violation of his attorneys’ equitable lien.” (See Opp. at 17:20-22.) “[l]t is 2 axiomatic,” however, “that the complaint may not be amended by briefs in opposition to a 3 || motion to dismiss.” See Sathianathan v. Smith Barney, Inc., No. C 04-2130 SBA, 2004 4 || WL 3607403, at *9 n.13 (N.D. Cal. June 6, 2005) (internal quotation and citation omitted). 5 Accordingly, the Court will deny Rois-Mendez’s request for leave to amend the 6 || FAC, without prejudice to his filing a noticed motion pursuant to the Local Rules of this 7 || District. See Civil L-R. 7-1. 8 CONCLUSION 9 For the reasons stated above: 10 1. Blue Shield’s Motion to Dismiss is hereby DENIED. 11 2. Rois-Mendez’s request for leave to amend the FAC is hereby DENIED, 12 || without prejudice to his filing a noticed motion requesting such leave. 5 13 IT IS SO ORDERED.

15 || Dated: January 25, 2021 (rere Chats INE M. CHESNEY 0 16 United States District Judge g 17

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