Saini v. Sutter Health

Filed 6/17/22 Certified for Publication 7/8/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

DAR SAINI,
Plaintiff and Appellant,
A162081
v.
SUTTER HEALTH, (Alameda County
Super. Ct. No. RG19008395)
Defendant and Respondent.

Plaintiff Dar Saini appeals a judgment entered after the trial court
sustained without leave to amend the demurrer of defendant Sutter Health
to plaintiff’s third amended complaint. The amended complaint alleges a
violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code,1 § 1750
et seq.) based on defendant’s failure to disclose, prior to providing emergency
medical treatment, that its bill for emergency services would include an
evaluation and management services fee (EMS Fee), by visibly posting
“signage in or around defendant’s emergency rooms or at its registration
windows/desks.” Plaintiff acknowledges that Division One of this court
recently held that identical allegations do not state a cause of action under

1 All statutory references are to the Civil Code unless otherwise noted.

1
the CLRA. (Gray v. Dignity Health (2021) 70 Cal.App.5th 225 (Gray).)2
Plaintiff’s arguments that Gray was wrongly decided are not persuasive.3 Nor
has plaintiff established that the trial court abused its discretion in denying
further leave to amend. Accordingly, we shall affirm the judgment.
Background
Plaintiff’s original pleadings alleged causes of action for declaratory
judgment, violation of the unfair competition law (UCL) (Bus. & Prof. Code,
§ 17200 et seq.), and violation of the CLRA. Following two successful
demurrers by defendant, plaintiff filed a third amended complaint (hereafter
complaint) eliminating the causes of action for declaratory judgment and
violation of the UCL, and asserting a single cause of action for violation of
section 1770, subdivisions (a)(5) and (a)(14) of the CLRA.4

2 After briefing was complete, the Fifth Appellate District issued Torres
v. Adventist Health System/West (2022) 77 Cal.App.5th 500 affirming a
judgment on the pleadings in favor of the defendant hospital on an identical
claim, albeit on different grounds. (See fn. 8, post.)
3Plaintiff’s opening brief indicates that his attorney, who also
represented Gray, had filed a petition for review and request for
depublication of Gray with the California Supreme Court. Defendant’s
request that we take judicial notice of the January 26, 2022, order denying
that request is denied as unnecessary.
4 Section 1770 reads in relevant part: “(a) The unfair methods of
competition and unfair or deceptive acts or practices listed in this subdivision
undertaken by any person in a transaction intended to result or that results
in the sale or lease of goods or services to any consumer are unlawful: [¶] . . .
[¶] (5) Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that they do not
have or that a person has a sponsorship, approval, status, affiliation, or
connection that the person does not have. [¶] . . . [¶] (14) Representing that a
transaction confers or involves rights, remedies, or obligations that it does
not have or involve, or that are prohibited by law.”

2
 The complaint alleges that in April 2016, after being treated at
defendant’s emergency room, he was billed an EMS Fee in addition to the
charges for individual items of service and treatment he received. His total
charges of $4,593 (before discounts) included the undisclosed EMS Fee in the
amount of $2,811. The complaint continues, “Plaintiff is informed and
believes and thereon alleges that, unlike other items billed to emergency
room patients, this [EMS Fee] is charged to emergency room patients simply
for seeking treatment in the emergency room and is designed to cover
‘overhead’ and general operating and staffing expenses for operating an
emergency room on a 24 hour basis. It is not like other individual billable
items of treatment or services. Rather, it is . . . charged to every emergency
room patient who presents and is treated at any one of defendant’s
emergency rooms. Further, the fact that defendant intends to charge an EMS
Fee to patients simply for being seen in the emergency room is not visibly
posted on signage in or around defendant’s emergency rooms or at its
registration windows/desks, where a patient would at least have the
opportunity of knowing of its existence . . . .” Plaintiff alleges that patients
“have a right to know about [the EMS Fee], and defendant owed/owes
plaintiff and class members a corresponding duty to notify them of such fee in
advance of providing treatment that triggers it.” The complaint emphasizes,
“To be clear, the signage that plaintiff would deem sufficient to notify
prospective emergency room patients would be a simple, inexpensive matter,
and would be of immense benefit to consumers, who would greatly benefit
from a simple, prominent sign placed in defendant’s emergency rooms.”
California’s “Payers’ Bill of Rights,” Health and Safety Code
section 1339.50 et seq., sets forth obligations California hospitals owe to
consumers with respect to the pricing of medical services. Under the Payers’

3
Bill of Rights, California hospitals must publish on the hospital’s website or
at the hospital itself a “charge description master” (chargemaster) listing the
hospital’s uniform charges for its services. (Health & Saf. Code, § 1339.51,
subds. (a)(1), (b)(1)5; see also 42 U.S.C. § 300gg-18(e) [Medicare participating
hospitals must disclose, in addition to their chargemaster, a “list” of
“standard charges” in accordance with guidelines promulgated by the
Secretary of Health and Human Services.]; 45 C.F.R. § 180.60, subd. (a)(1);
84 Fed.Reg. 65524-01, 65564 [Medicare participating hospitals must “post
standard charges for at least 300 shoppable services that can be planned in
advance.”].) In addition, the Payers’ Bill of Rights requires the hospital to
“post a clear and conspicuous notice in its emergency department” informing
patients that the chargemaster is available for review and how it may be
accessed. (Health & Saf. Code, § 1339.51, subd. (c).)
Plaintiff’s complaint alleges that defendant complies with the above
requirements by listing the EMS Fee in its chargemaster, which is published
on defendant’s website. The complaint clarifies that plaintiff’s claim is “not
that defendant fails to list an EMS Fee as a line item in its published
chargemasters, or that defendant fails to list the price of such fees in its
chargemasters.” (Fn. omitted.) But, the complaint further alleges, “the
requirement for hospitals to post their chargemasters online . . . is not

5 Health and Safety Code section 1339.51, subdivisions (a) and (b) read
in relevant part: “(a) . . . a hospital . . . shall make a written or electronic copy
of its charge description master available, either by posting an electronic copy
of the charge description master on the hospital’s Internet Website, or by
making one written or electronic copy available at the hospital location.
[¶] . . . [¶] (b) For purposes of this article, the following definitions shall
apply: [¶] (1) ‘Charge description master’ means a uniform schedule of
charges represented by the hospital as its gross billed charge for a given
service or item, regardless of payer type.”

4
intended to and does not inform emergency room patients of a hospital’s
intent to bill an [EMS] Fee for an emergency room visit, which is a matter
that is not addressed by the requirements for online posting of the
chargemaster. The two issues, posting of a chargemaster, and notifying
prospective emergency room patients of the intention to assess an [EMS] Fee,
are completely separate and very distinct issues.”
The trial court sustained the hospital’s demurrer to the amended
complaint without leave to amend, concluding that defendant has no duty to
post notice of the EMS Fee in its emergency room. The trial court ruled that
the allegations of the complaint show that defendant has complied with its
statutory disclosure obligations and that there is no duty to make an
additional disclosure of the EMS Fee in light of the public policy reflected in
federal and state statutes that emergency room care be provided to patients
without delay or questioning about their ability to pay. (See Health & Saf.
Code, § 1317, subd. (d) [Hospitals must render emergency services “without
first questioning the patient or any other person as to his or her ability to pay
therefor.”]; 42 U.S.C. § 1395dd(a) & (h) (Emergency Medical Treatment and
Active Labor Act or EMTALA) [Medicare participating hospitals must
provide emergency services upon request and may not delay the provision of
services “in order to inquire about the individual's method of payment or
insurance status.”].)
Plaintiff timely filed a notice of appeal from the subsequently entered
judgment.
Discussion
“ ‘ “ ‘The [CLRA], enacted in 1970, “established a nonexclusive statutory
remedy for ‘unfair methods of competition and unfair or deceptive acts or
practices undertaken by any person in a transaction intended to result or

5
which results in the sale or lease of goods or services to any consumer. . . .’
[Citation.]” ’ [Citation.] ‘The self-declared purposes of the act are ‘to protect
consumers against unfair and deceptive business practices and to provide
efficient and economical procedures to secure such protection.’ ” ’ ” (Gray,
supra, 70 Cal.App.5th at pp. 242–243.)
In Gray, supra, 70 Cal.App.5th at page 245, the court held that the
plaintiff’s assertion that the hospital failed to disclose, prior to providing
medical emergency treatment, that its billing for such treatment would
include an emergency room charge (ER Charge) does not state a CLRA claim,
under section 1770, subdivision (a)(5) or (a)(14).6 In a well-reasoned opinion,
the court found that requiring such disclosure would be inconsistent with the
“strong legislative policy” reflected in the applicable “multi-faceted statutory
and regulatory scheme” designed “to ensure that emergency medical care is
provided immediately to those who need it, and that billing disclosure
requirements are not to stand in the way of this paramount objective.” (Id. at
p. 241, citing Health & Saf. Code, §§ 1317, subd. (d), 1339.51, subd. (c); 42
U.S.C. §§ 1395dd(a) & (h), 300gg-18(e); 45 C.F.R. § 180.60, subd. (a)(1), 84
Fed.Reg. 65524-01 at p. 65564.) The court explained, “Not only did [the
hospital] fully comply with all state and federal disclosure requirements,
including the requirement that there be signage in its emergency room
departments stating how its pricing information can be accessed [citation],
but requiring individualized disclosure that the hospital will include an ER
Charge in its emergency room billing, prior to providing any emergency
medical services, is at odds with the spirit, if not the letter, of the hospital’s
statutory and regulatory obligations with respect to providing emergency

6There is no dispute that the “ER Charge” referred to in Gray is the
same fee as the EMS Fee at issue in the present case.

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medical care.” (Id. at p. 240.) The court added, “Gray claims Dignity owes this
pretreatment disclosure duty in order to accomplish an objective antithetical
to state and federal law—to discourage some patients from remaining in the
emergency room and receiving medical care. He asserts, for example, that if
signage were posted—identifying the cost of each of the five levels of ER
Charges (ranging from $984 to $7,356), each level accompanied by a one-word
descriptor (ranging from ‘minor’ to ‘complex/life-threatening’), with a caveat
that these are ‘gross’ charges prior to insurance and any other reduction and
‘[y]our . . . costs may be substantially less’—this would be ‘particularly
beneficial’ to patients with ‘relatively minor ailments’ and go a long way
towards making emergency departments ‘less crowded.’ Even if lessening the
load on our emergency rooms might be a laudable goal, Gray’s sweeping
assumption that those seeking care at an emergency department can
accurately diagnose whether their ailment is ‘relatively minor’ and whether
they can safely transport themselves or be transported to a lower acuity
facility, is unsupportable. And while Gray complains this is a ‘paternalistic’
attitude and asserts every person has a right to decide for him or herself
whether to seek medical treatment at an emergency department, and to do so
based on readily accessible cost information, this disregards the long
standing regulatory environment within which emergency departments
operate, which emphasizes that no one in need of emergency care should be
deterred from receiving it because of its cost.” (Id. at pp. 241–242.)7

7 The court also held that the same allegations failed to state a cause of
action under section 1170, subdivision (a)(14). (Gray, supra, 70 Cal.App.5th
at p. 245.) The court explained, “Gray does not allege any collateral oral
misrepresentation by Dignity that is at odds with the terms of the hospital’s
[conditions of admission (COA)]. Nor does he allege that Dignity’s COA
contains any term prohibited by law. The only allegation Gray makes with

7
 We agree defendant does not have a duty under the CLRA to disclose
the EMS Fee by posting additional signage in its emergency rooms. As
plaintiff’s complaint acknowledges, the EMS Fee is disclosed in the hospital’s
chargemaster in compliance with state and federal law. Making the
unsupported assumption that this disclosure is insufficient and does not in
fact convey the necessary information to one seeking this information before
receiving emergency room treatment, there nonetheless is no basis to require
further disclosure. Courts have “identified four situations in which a failure
to disclose a fact constitutes a deceptive practice actionable under the CLRA.
[Citation.] Those situations arise when the defendant is the plaintiff’s
fiduciary, when the defendant has exclusive knowledge of material facts not
known or reasonably accessible to the plaintiff, and when the defendant
actively conceals a material fact. In addition, the duty to disclose exists ‘when
the defendant makes partial representations that are misleading because
some other material fact has not been disclosed.’ [Citation.] . . . In other
words, a defendant has a duty to disclose when the fact is known to the
defendant and the failure to disclose it is ‘ “misleading in light of other facts
. . . that [the defendant] did disclose.” ’ ” (Gutierrez v. Carmax Auto
Superstores California (2018) 19 Cal.App.5th 1234, 1258 (Gutierrez).) The
existence of a duty to disclose under the CLRA presents a legal question
subject to our de novo review. (Ibid.)

respect to the hospital’s COA is that ‘under Hospital’s Contract,’ he is
assertedly ‘not required to pay’ the ‘undisclosed’ ER Charge. At most, he has
alleged a breach of contract, which, alone, is not sufficient to state a claim
under Civil Code section 1770, subdivision (a)(14).” (Ibid.) Here, plaintiff’s
complaint does not include any allegations regarding defendant’s COA. His
contention that he can amend the complaint to add such allegations and a
cause of action for breach of contract is addressed post.

8
 Plaintiff argues that defendant had a duty to disclose under the CLRA
based on its “exclusive knowledge” and “intentional concealment” as alleged
in his complaint. In this regard, plaintiff’s complaint alleges that defendant
had “exclusive knowledge that it would be billing plaintiff and class members
such an [EMS] Fee;” that “this fact was not known or reasonably accessible to
plaintiff or class members at the time of their emergency room visits”; that
“[s]uch charges are effectively hidden by defendant’s intentional failure to
provide notice of them in its emergency rooms;” and that “defendant
intentionally conceals such fees.”
In sustaining defendant’s demurrer, the trial court acknowledged that
defendant “had a duty to disclose medical care fees generally” based on its
“exclusive knowledge of material facts not known or reasonably accessible to
the plaintiff,” but concluded that defendant did not have an additional duty
to disclose the EMS Fee in the manner alleged in the complaint. We agree
with the trial court’s reasoning. The hospital has a duty under the CLRA, as
well as the many statutes cited above, to disclose the fees it intends to charge
for its goods and services, including the EMS Fee. It does so in its
chargemaster, to which signage in the emergency room directs those
interested.8 The question here, however, is whether defendant has a duty to

8 In Torres v. Adventist Health System/West, supra, 77Cal.App.5th at
page 513, the court held that the hospital’s compliance with the statutory
disclosure standards, including publication of its chargemaster, did not
establish that plaintiff had reasonable access to the material facts about its
EMS Fee. Relying on allegations in the plaintiff’s complaint that the
hospital’s “chargemaster was ‘unusable and effectively worthless for the
purpose of providing pricing information to consumers’; the chargemaster
failed to include the standardized [current procedural terminology] codes
recognized in the industry; and the chargemaster used coding and highly
abbreviated descriptions that are meaningless to consumers” (id. at p. 512),

9
call attention to the EMS Fee by additional signage in the emergency room
visible to a person seeking emergency care. The Gray court concluded that for
the reasons it explained no such duty exists, and we agree.
Plaintiff faults the Gray decision for failing to distinguish between
discouraging treatment by questioning patients as to their “ability to pay” for
the treatment and merely providing information about the cost of treatment
so that the patient can make an informed decision. He argues that neither
the letter nor purpose of the state and federal statutes “is to require a
hospital to withhold pricing information or fail to inform the patient as to the
hospital’s intent to assess an [EMS] Fee for their emergency room visit.” But
there is no withholding of information that is provided on the hospital’s
chargemaster.
Moreover, the court in Gray carefully considered the competing
interests served by ensuring that patients are fully apprised in advance of
the costs of emergency services and ensuring that patients have timely access

the court reasoned that it could not “conclude as a matter of law that an
objectively reasonable person who reviewed Hospital’s chargemaster . . .
could discern the circumstances in which the EMS Fee is charged or how the
amount of the EMS Fee is determined” (id. at p. 513). We need not reach this
issue, however, as plaintiff’s complaint expressly disavows any claim that
“defendant fails to list an EMS Fee as a line item in its published
chargemasters, or that defendant fails to list the price of such fees in its
chargemasters.” Moreover, the chargemaster is required to be filed annually
with the Office of Statewide Health Planning and Development (Health &
Saf. Code, § 1339.55, subd. (a)) and that department is charged with
investigating claims alleging a violation of the statute and requiring
corrective action. (Health & Saf. Code, § 1339.54 [“Any person may file a
claim with the department alleging a violation of this article. The department
shall investigate and inform the complaining person of its determination
whether a violation has occurred and what action it will take.”].) Accordingly,
we do not imply that defendant’s chargemaster provides insufficient notice of
the existence of the EMS Fee.

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to emergency services. The court observed, “It is also telling that in
expanding the pricing disclosure obligations of hospitals under the [Patient
Protection and Affordable Care Act (Pub.L. No. 111-148 (Mar. 23, 2010) 124
Stat. 119) (Affordable Care Act)], federal regulators took care to ensure that
these new obligations do not interfere with the emergency treatment
obligations under the EMTALA. As we have discussed, the new pricing
disclosure requirements are focused on ‘shoppable’ medical services, that is,
services that can be scheduled in advance and, by definition, are not
emergency medical services. Thus, the new pricing information is to be posted
on-line in a readily accessible format for use by consumers planning for
scheduled medical treatment. People seek emergency medical treatment, in
contrast, for serious, and often grave, unplanned accidents or medical
calamities.” (Gray, supra, 70 Cal.App.5th at p. 241.) The court also cited
legislative history showing that “when concern was raised that the new
federal disclosure requirements [under the Affordable Care Act] might
interfere with a hospital’s obligations under the EMTALA—including
providing emergency treatment to any person who seeks it and providing
such treatment before any discussion about ability to pay—the [Centers for
Medicare & Medicaid Services] stated, ‘the price transparency provisions . . .
do not require that hospitals post any signage or make any statement at the
emergency department regarding the cost of emergency care or any hospital
policies regarding prepayment of fees or payment of co-pays and deductibles.
[Citation.] And while the [Centers for Medicare & Medicaid Services] lauded
hospitals that go beyond posting the new pricing information, the efforts it
identified were post-treatment financial counseling and workable payment
strategies.” (Gray, supra, 70 Cal.App.5th at p. 241.)

11
 Plaintiff cites to additional legislative history suggesting that the
Centers for Medicare & Medicaid Services has considered whether hospitals
should make public standard charges and “offer consumers opportunities for
informed decision-making by providing them with information about the cost
of care which, for example, they might consider prior to visiting a hospital
emergency department for treatment of a non-life threatening condition.”
(Citing 84 Fed.Reg. 65524-01 at p. 65536.) But, as Gray makes clear, the
state and federal legislative bodies are in a superior position to balance these
competing interests and have done so in crafting the applicable “multifaceted
statutory and regulatory scheme.” (Gray, supra, 70 Cal.App.5th at p. 241.)
Our conclusion is consistent with the balance struck by the existing
regulatory scheme and does not, as plaintiff suggests, disregard the
“important policy in favor of providing pricing transparency to medical
patients.”
This reasoning applies with equal force to the alleged omission under
section 1770, subdivision (a)(14). Plaintiff’s complaint does not distinguish
between alleged omissions with respect to the “services and/or supplies” it
provides and omission regarding the “transaction” between it and plaintiff.9

9 Plaintiff’s complaint alleges, “At all relevant times, defendant violated
the CLRA by engaging in and continuing to engage in deceptive practices,
unlawful methods of competition, and/or unfair acts to the detriment of
plaintiff and the class, including, but not limited to, the following: [¶] (a) In
violation of Civil Code section 1770(a)(5), which applies in the context of
omissions as well as affirmative misrepresentations, defendant’s acts and
practices constitute omissions/concealment that the services and/or supplies
in question had characteristics, uses and/or benefits which they did not have;
and [¶] (b) In violation of Civil Code section 1770(a)(14), which also applies in
the context of omissions as well as affirmative misrepresentations, defendant
omits/conceals that a transaction involves obligations which it does have.”

12
 Plaintiff’s remaining arguments that Gray was wrongly decided also
lack merit. Initially, plaintiff argues that Gray is inapposite because it
primarily addresses Gray’s claims under the UCL. While much of the
analysis quoted above is found within the court’s discussion of Gray’s claim
under the UCL (Gray, supra, 70 Cal.App.5th at pp. 240–242), the court then
concluded, with respect to Gray’s CRLA claims, that “[f]or all the reasons we
have discussed in connection with Gray's ‘unfair’ business practice claim,
Dignity did not owe Gray the duty he claims was owed in this case—to
disclose, prior to providing any medical emergency treatment, that its billing
for such treatment would include an ER Charge.” (Id. at p. 244.)
Plaintiff also argues that the Gray decision incorrectly relies on Nolte v.
Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401 because the facility
fee at issue in Nolte is distinguishable from the EMS Fee and ER Charge at
issue here and in Gray. In Nolte, the court held that the plaintiff failed to
state a cause of action under the UCL based on allegations Cedars-Sinai had
not “specifically, separately, and individually disclose[d]” an administrative
charge prior to the plaintiff receiving services from a physician at a hospital
medical facility. (Id. at p. 1408.) The court explained that Nolte’s complaint
did “not allege (and the law does not provide) that Nolte had the right to have
every individual charge specifically disclosed to him in advance before Cedars
issued a bill. Cedars’s obligation to Nolte and other consumers of medical
services was that Cedars make a written or electronic copy of its schedule of
charges available in the manner codified in section 1339.51 of the Health and
Safety Code, and there is no allegation that Cedars did not do so. Further,
‘there is no requirement [under the UCL] that reasonable notice has to be the
best possible notice.’ ” (Nolte, at p. 1409.) The court in Gray found that Nolte
was analogous and agreed with its holding. (Gray, supra, 70 Cal.App.5th at

13
p. 238.) Although plaintiff here is correct that the “facility fee” at issue in
Nolte is different from the fee at issue in Gray and the present case, the
situation nonetheless remains analogous. As the court in Gray explained,
“This is essentially the same claim Gray advances here—that, prior to
providing any emergency medical services, Dignity is required to disclose that
its billing for such services will include an ER Charge. The factual
distinctions to which Gray points are immaterial.” (Gray, at p. 240.) We agree
that Nolte is analogous and well-reasoned.
Plaintiff contends the court in Gray improperly implied a “safe harbor”
for the hospital’s alleged omission. In Cel-Tech Communications, Inc. v.
Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182, the court held
that where specific legislation provides a “safe harbor,” plaintiffs “may not
use the general unfair competition law to assault that harbor.” The court held
further, however, that there is no implied “safe harbor” under California law
for claims asserted under the UCL. As defendant notes, Cel-Tech did not
address claims asserted under the CLRA. In any event, the Gray court’s
conclusion that the proposed duty would interfere with the statutory and
regulatory requirements that hospitals provide emergency care without first
addressing the costs for care or the patient’s ability to pay does not imply a
“safe harbor” for the alleged omission. (Gray, supra, 70 Cal.App.5th at
p. 241.)
Nor did the Gray court conclude that defendant’s duty to disclose the
EMS Fee under the CLRA is expressly preempted by the EMTALA.10 To the
contrary, the court found that imposing a duty to disclose prior to providing

10Section 1395dd, subdivision (f) of the EMTALA states, “The
provisions of this section do not preempt any State or local law requirement,
except to the extent that the requirement directly conflicts with a
requirement of this section.”

14
any emergency medical services “is at odds with the spirit, if not the letter, of
the hospital’s statutory and regulatory obligations with respect to providing
emergency medical care.” (Gray, supra, 70 Cal.App.5th at p. 240.)
Finally, plaintiff argues for the first time on appeal that the defendant
could reasonably be required to disclose on its website that “if a patient goes
to the emergency room rather than an urgent care center, the patient will
incur an [EMS Fee] in addition to the costs of the diagnostic testing and
treatments that are provided (and mentioned on the website).” Plaintiff’s
complaint, however, alleges only that defendant’s failure to visibly post
signage in defendant’s emergency rooms prior to treatment violates the
CLRA. Contrary to plaintiff’s assertion, additional website disclosure is not
“within the scope of relief sought” in his complaint.
Accordingly, the trial court properly sustained defendant’s demurrer to
plaintiff’s cause of action under the CLRA. Moreover, the court did not, as
plaintiff suggests, abuse its discretion in denying plaintiff leave to amend.
Plaintiff asserts that he should be given leave to amend his complaint to
allege a cause of action for breach of contract. He argues that the COA form
he signed provides that the patient is responsible only for charges “for care
and services” provided to the patient and that insofar as the EMS Fees are
designed to cover the hospital’s overhead, operating, and administrative
expenses, they are not recoverable under the terms of the agreement.11

11The form signed by plaintiff and submitted by defendant in
connection with its demurrer reads in relevant part, “HOSPITAL CHARGES:
The Hospital’s charges for care and services are calculated in accordance with
the Charge Description Master (‘CDM’) in effect at the time services are
provided. If you would like to review the CDM charges, please request an
appointment with a Patient Financial Services Counselor. You can also view
the Hospital’s CDM online at: www.oshpd.ca.gov.” The form adds with

15
However, these allegations were included in plaintiff’s original complaint to
which a demurrer was sustained and they were not realleged in his amended
complaint. By amending his complaint to omit the contract allegations,
rather than appealing the trial court’s order, plaintiff waived any argument
that those allegations sufficiently alleged a cause of action for breach of
contract. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966.)
Disposition
The judgment is affirmed. Defendant shall recover its costs on appeal.

POLLAK, P. J.

WE CONCUR:

STREETER, J.
NADLER, J.*

respect to patients with insurance, “If my insurance does not pay all of the
Hospital’s charges calculated in accordance with the Hospital’s CDM, for the
services and items provided to me, I agree to pay the unpaid balance.”
*Judge of the Sonoma County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

16
Filed 7/8/2022
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

DAR SAINI,
A162081
Plaintiff and Appellant,
(Alameda County
v. Super. Ct. No. RG19008395)
SUTTER HEALTH, ORDER CERTIFYING
OPINION FOR PUBLICATION
Defendant and Respondent.

THE COURT:
The opinion in the above-entitled matter filed on June 17, 2022, was
not certified for publication in the Official Reports. For good cause it now
appears that the opinion should be published in the Official Reports and it is
so ordered.

July 8, 2022 POLLAK, P.J.

1
Trial court: Alameda County Superior Court

Trial judge: Honorable Winifred Smith

Counsel for plaintiff and CARPENTER LAW
appellant: Gretchen Carpenter

LAW OFFICE OF BARRY KRAMER
Barry L. Kramer

Counsel for defendant and KING & SPALDING LLP
respondent: Glenn E. Solomon
Amanda L. Hayes-Kibreab
Ariana E. Fuller

2