Shankar v. Medpoint Management CA2/1

Filed 1/30/23 Shankar v. Medpoint Management CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ARVIND SHANKAR, B309862

Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No. 18STCV00530)

MEDPOINT MANAGEMENT, INC.,

Defendant and Respondent.

APPEAL from orders of the Superior Court of Los Angeles
County, Maren Nelson, Judge. Affirmed in part and reversed in
part.
Robert C. Moest for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest
Slome and Joseph C. Campo for Defendant and Respondent.
_________________________
 INTRODUCTION
Plaintiff and appellant Arvind Shankar1 alleges he has a
persistent throat infection that requires specialized treatment,
but that he has been denied such treatment. To address this
alleged wrong, he sued among others a healthcare management
company named Medpoint Management, Inc. (Medpoint) that
allegedly provided utilization review services to his insurer on
claims for negligence, intentional infliction of emotional distress
(IIED), breach of contract, and violation of the unfair competition
law (UCL; Bus. & Prof. Code, § 17200 et seq.).2 Shankar brought
these claims not only on his own behalf, but also on behalf of a
proposed class of patients referred to a medical specialist for
services who were unable to timely obtain such services. The
trial court granted Medpoint’s demurrer to the causes of action
for breach of contract and violation of the UCL. It overruled the
demurrer as to the negligence and IIED claims, but sustained it
as to any class action allegations on those two claims.
Shankar now appeals that ruling. We conclude that
Shankar’s breach of contract claim, which is premised on a third
party beneficiary theory, and his UCL claim both fail to state
viable claims and that the court did not err in sustaining the
demurrer to both claims without leave to amend. As for the class
action allegations, we affirm the trial court’s order sustaining the
demurrer to class treatment of the negligence and IIED causes of

1Shankar initiated his lawsuit under the fictitious name
“James Poe,” but the trial court ordered him to reveal his identity
and use his real name.
2 Unspecified statutory references are to the Business and
Professions Code, unless otherwise indicated.

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action because Shankar fails to show a community of interest
among class members with respect to those claims, and there is
no reasonable possibility that Shankar can amend his allegations
to cure this defect.
FACTUAL AND PROCEDURAL BACKGROUND
A. Shankar’s Allegations
Shankar alleges in the operative second amended
complaint (SAC) that since 2016 he has had a throat infection
that causes a burning sensation, irritation, increased mucus
production, and pain and soreness in the tissues adjacent to the
infection site. Initially, Shankar’s symptoms were mild. In
August 2017, they rapidly became more severe, including greatly
increased production of mucus and phlegm, pain in numerous
joints, neck stiffness, and burning and pressure sensations in
various parts of his body. Shankar went to the emergency
department of an unidentified hospital three times that month.
He was prescribed two courses of antibiotics, which both had
temporary positive results, but his symptoms soon returned to
their prior severity. Shankar attempted to arrange an evaluation
by a primary care provider to obtain a referral to an infectious
disease specialist but was unable to do so.
Shankar therefore decided to enroll in a different health
plan. On or about September 12, 2017, Shankar became a
member of a health plan offered by defendant Local Initiative
Health Authority for Los Angeles County doing business as L.A.
Care Health Plan (L.A. Care). On or about September 13, 2017,
Shankar chose to be assigned to Pioneer Medical Group (Pioneer).
Medpoint “provide[s] management services to [Pioneer] and other
medical groups in the Los Angeles area, which include
[u]tilization [r]eview services.” Shankar saw physicians at

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Pioneer on September 14 and 26, 2017. The physician who
examined Shankar on September 26 concluded that he should be
seen by an infectious disease specialist “and also should be
examined at a specialty clinic within [Pioneer].”
A few days later, Pioneer informed Shankar that the
referral to the infectious disease specialist had been approved by
utilization review. However, despite the referral being approved,
Shankar has been unable to obtain an evaluation by an infectious
disease specialist. Shankar alleges that Medpoint failed to
arrange for an infectious disease specialist to examine him
despite his multiple requests. Shankar “has received no
treatment, and has thereby suffered loss of sleep, significant
harm to his health, significant pain and suffering, and
impairment in his daily activities.”
L.A. Care and one of its employees were named defendants
in the initial complaint. Those parties settled with Shankar, are
no longer defendants, and are not involved in this appeal.
Medpoint’s chief executive officer was named as a defendant in
earlier versions of the complaint, but not in the SAC, and she is
not involved in this appeal. Pioneer is not a named defendant in
this case; it is, however, a defendant in a related case filed by
Shankar involving similar allegations that he was improperly
denied treatment for his throat infection (Henry Poe v. Pioneer
Medical Group, Inc. (Super. Ct. L.A. County, 2018, No.
BC721826)).3 Thus, the only remaining defendant in this case is
Medpoint.

3 We take judicial notice of the existence of this complaint,
which is part of the record because the trial court took judicial
notice of the complaint in ruling on the demurrer to the SAC.

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B. Shankar’s Causes of Action
The SAC asserts four causes of action against Medpoint:
negligence, IIED, breach of contract, and violation of the UCL.
There are also class allegations seeking relief for putative class
members who have been injured by Medpoint’s alleged conduct.
Shankar alleges that Medpoint was negligent “by failing to
take reasonable steps to provide for access to specialist care
within the time interval prescribed by” California Code of
Regulations, title 28, section 1300.67.2.2, subdivision (c)(5)(B)
(section 1300.67.2.2(c)(5)(B)). According to Shankar, this
regulation required that Shankar “must have an opportunity to
see the specialty physician within 96 hours of [when his primary
care physician] determines that specialty care is necessary.” The
full text of the regulation provides that “each [health care service]
plan shall ensure that its network has adequate capacity and
availability of licensed health care providers to offer enrollees
appointments” for “[u]rgent care appointments for services that
require prior authorization . . . within 96 hours of the request for
appointment,” provided, however, that “[t]he applicable waiting
time for a particular appointment may be extended if the
referring or treating licensed health care provider, or the health
professional providing triage or screening services, as applicable,
acting within the scope of his or her practice and consistent with
professionally recognized standards of practice, has determined
and noted in the relevant record that a longer waiting time will
not have a detrimental impact on the health of the enrollee.”
(Cal. Code Regs., tit. 28, § 1300.67.2.2, subds. (c)(5)(B), (G).)
Shankar’s IIED cause of action is premised on the
allegation that Medpoint “ignored, disregarded, gave false
responses to, or otherwise obstructed numerous efforts by

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[Shankar], or efforts made by others on behalf of [Shankar],
through which [Shankar] was attempting to obtain a consultation
from a competent [i]nfectious [d]isease specialist.”
In his breach of contract cause of action, Shankar alleges
based on information and belief that Medpoint has written
contracts with L.A. Care and Pioneer. Shankar acknowledges
that he has never seen these contracts but alleges he “is informed
and believes that the legal effect of the aforesaid written
contracts is to impose an obligation upon [Medpoint] to promptly
review referrals for specialty medical services made by primary
care physicians, to determine whether those referrals are
appropriate and reasonably medically necessary, and to promptly
arrange for appropriate specialists to render those specialty
medical consultations. Among the obligations of [Medpoint] in
the aforesaid contracts is to comply with all applicable
regulations promulgated by the State of California, and also to
comply with the standards of practice prevailing in the medical
profession.” Shankar alleges he “is also informed and believes
that the legal effect of the aforesaid written contracts is to make
[Shankar] and others similarly situated to be explicitly intended
third party beneficiaries of the aforesaid written contracts.”
As for the UCL, Shankar alleges Medpoint’s violation of
section 1300.67.2.2(c)(5)(B) constitutes both an “unlawful” and an
“unfair” business practice. Shankar does not allege he has yet
suffered any monetary injury, instead asserting he “is being
forced to imminently use his own financial resources to pay for a
specialty consultation and to pay for the medication that is likely
to be necessary.” Shankar seeks injunctive relief, restitution and
attorney fees on the UCL cause of action.

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 In addition to his individual claims, Shankar seeks to
assert all of his causes of action against Medpoint on behalf of a
“class of persons seeking damages from [Medpoint]” defined as
“all patients who obtained medical services at any medical
practice or medical group for which these defendants provided
management services, and who were referred to obtain medical
services from a specialist physician, and who were unable to
obtain specialty medical services in compliance with the specific
deadlines imposed by the California Code of Regulations. The
class will be limited to those patients who suffered harm from
any of these types of tortious conduct within a period of five years
prior to the filing of the [c]omplaint in this action, and it will
include patients who have suffered such harm after the
[c]omplaint was filed.”
C. The Court’s Ruling on Medpoint’s Demurrer
Medpoint filed a demurrer to the SAC. After briefing and
argument, the trial court issued a written ruling sustaining the
demurrer as to the breach of contract and UCL causes of action.
With regard to the breach of contract claim, the court concluded
Shankar “failed to plead the specific contract provisions he
contends were breached and further, failed to allege facts
showing he is an intended third party beneficiary of any
Med[p]oint contract” and denied leave to amend. As to the UCL
cause of action, the court concluded Shankar failed to allege
Medpoint engaged in “unlawful” business practices by not
arranging an appointment with an infectious disease specialist
within the time period allegedly required by section
1300.67.2.2(c)(5)(B) because that regulation applies only to
“health care service plans” (HCSP) and Shankar did not allege
that Medpoint was an HCSP. It further concluded that Shankar

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had failed to adequately allege that Medpoint engaged in “unfair”
business practices because he did not sufficiently identify what
conduct by Medpoint was “unfair” and instead alleged “unfair”
conduct by incorporating all prior allegations. Finally, noting
that UCL remedies are limited to injunctive relief and
restitution, the court held the SAC improperly sought attorney’s
fees. The court granted Shankar leave to amend his UCL cause
of action to allege that Medpoint is an HCSP, but Shankar
elected not to do so.
The court overruled the demurrer as to the negligence and
IIED causes of action, but sustained it with leave to amend with
respect to the class action allegations related to those two
claims.4 With respect to those class action allegations, the court
concluded that individual issues would predominate over common
issues as the inquiry into whether class members were harmed
would necessarily be individualized and might in some cases
require expert testimony.
On December 22, 2020, Shankar filed a timely notice of
appeal of the trial court’s ruling on Medpoint’s demurrer to the
SAC.
DISCUSSION
Shankar contends that each component of the trial court’s
ruling sustaining the demurrer was error. After discussing the
appealability of the trial court’s order and the standard of review,
we examine the court’s ruling on each of the SAC’s claims. We

4 The court did not address the demurrer to the class action
allegations on the breach of contract or UCL claims, finding it
moot in light of its ruling on the underlying claims.

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begin with the breach of contract and UCL claims before turning
to the class action allegations.5
A. Appealability of the Trial Court’s Order Granting
Medpoint’s Demurrer
Shankar appeals the trial court’s order sustaining
Medpoint’s demurrer, which did not entirely dispose of all claims
in the case. Although normally an order granting a demurrer is
not appealable, the parties agree, as do we, that Shankar’s appeal
is proper under the death knell doctrine given that the demurrer
ruling disposed of all Shankar’s class claims.

5 In the reply brief, at pages 36 through 45, Shankar’s
counsel engages in a rambling discussion of the United States
Supreme Court’s decision in Dobbs v. Jackson Women’s Health
Organization (June 6, 2022, No. 19-1392) ___ U.S. ___ [142 S.Ct.
2228, 213 L.Ed.2d 545], and several matters involving judges and
prosecutors from across the country, all of which he claims have
undermined the public’s confidence in the judiciary and
“demonstrate a general breakdown in the foundations of
American society.” Neither the Dobbs decision, nor any of the
other matters referenced in this discussion has any connection to
this case, and we fail to perceive how any of this discussion is
relevant to any proper argument in this appeal. In addition, in
his supplemental brief on the issue of standing under the UCL
(at pages eight through 10), Shankar’s counsel again engages in
an irrelevant and improper discussion regarding the judiciary
and law enforcement prosecutorial priorities. Accordingly, we do
not consider the material on pages 36 through 45 of Shankar’s
reply brief, and on pages eight through 10 of his supplemental
brief. (See Matuz v. Gerardin Corp. (1989) 207 Cal.App.3d 203,
207 [court disregards irrelevant matters discussed in an
appellate brief; “irrelevant matters in a brief have no persuasive
weight in determining an appeal”].)

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 A recent case succinctly explained the death knell doctrine:
“ ‘Under the one final judgment rule, “ ‘an appeal may be taken
only from the final judgment in an entire action.’ ” [Citations.]
“ ‘The theory [behind the rule] is that piecemeal disposition and
multiple appeals in a single action would be oppressive and
costly, and that a review of intermediate rulings should await the
final disposition of the case.’ ” ’ [Citation] An exception to the
rule, however, exists for the denial of class certification. Known
as the ‘death knell doctrine,’ the rule is a ‘ “ ‘tightly defined and
narrow’ ” exception to the one-final-judgment rule . . . .’
[Citation] [¶] ‘Under this exception, an order is appealable when
“it effectively terminates the entire action as to [a] class, in legal
effect being ‘tantamount to a dismissal of the action as to all
members of the class other than plaintiff.’ ” [Citations.] Thus, an
order determining that a plaintiff cannot “maintain his [or her]
claims as a class action but [can] seek individual relief” is
immediately appealable. . . .’ [Citation.]” (Allen v. San Diego
Convention Center Corp., Inc. (2022) 86 Cal.App.5th 589, 595.)
“[A]n order sustaining a demurrer to class allegations will
generally qualify as a death knell order, regardless of whether
leave to amend is granted to reallege class claims, because the
order in effect strikes the allegations from the complaint.”
(Williams v. Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060,
1064, 1070-1071.)
B. Standard of Review
“In reviewing the sufficiency of a complaint against a
general demurrer, we are guided by long-settled rules. ‘We treat
the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially

10
noticed.’ [Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their
context. [Citation.] When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause
of action. [Citation.] And when it is sustained without leave to
amend, we decide whether there is a reasonable possibility that
the defect can be cured by amendment: if it can be, the trial court
has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm. [Citations.] The burden of
proving such reasonable possibility is squarely on the plaintiff.
[Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We
will affirm if the trial court’s decision was correct on any theory.
[Citation.]” (Gutierrez v. California Commerce Club, Inc. (2010)
187 Cal.App.4th 969, 976.)
C. Shankar Fails to Plead a Viable Cause of Action for
Breach of Contract under the Third Party
Beneficiary Doctrine
To allege a cause of action for breach of a written contract,
“the plaintiff must plead the existence of a contract, its terms
which establish the obligation in issue, the occurrence of any
conditions precedent to enforcement of the obligation, and the
breach of that obligation.” (FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 383.) Further, “it is absolutely
essential to plead the terms of the contract either in haec verba or
according to legal effect.” (Twaite v. Allstate Ins. Co. (1989) 216
Cal.App.3d 239, 252.) Lastly, when seeking to assert a third
party beneficiary theory, as Shankar does here, a plaintiff also
must allege facts indicating why he or she is a third party
beneficiary of the contract at issue. (Goonewardene v. ADP, LLC
(2019) 6 Cal.5th 817, 826-837 (Goonewardene).)

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 In Goonewardene, our Supreme Court affirmed the
sustaining of a demurrer to a third party beneficiary breach of
contract claim. The court began by noting that “an individual or
entity that is not a party to a contract . . . may bring a breach of
contract action against a party to a contract only if the third
party establishes not only (1) that it is likely to benefit from the
contract, but also (2) that a motivating purpose of the contracting
parties is to provide a benefit to the third party, and further
(3) that permitting the third party to bring its own breach of
contract action against a contracting party is consistent with the
objectives of the contract and the reasonable expectations of the
contracting parties.” (Goonewardene, supra, 6 Cal.5th at p. 821.)
Goonewardene involved a wage claim in which the plaintiff
employee asserted she was a third party beneficiary of a contract
between her employer and a payroll company. In seeking to sue
the payroll company for breach of contract, the complaint alleged
“on information and belief” that the employer and the payroll
company had entered into a contract (the specific terms of which
were unknown to the employee) under which the payroll company
agreed to perform the employer’s payroll tasks for the benefit of
both the employer and its employees. (Goonewardene, supra, 6
Cal.5th at p. 832.) Those payroll tasks allegedly included
maintaining employee earnings records, adding hours on their
time cards, calculating wages under the applicable labor laws,
and preparing the paychecks and pay stubs for the employees.
(Id. at p. 826.) The complaint alleged the payroll company failed
to comply with its contractual obligations by negligently failing to
provide plaintiff with paychecks and pay stubs that accurately
reflected the wages she was due under the applicable labor
statutes and wage orders. (Ibid.)

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 Analyzing the three prongs it found were required to
establish a third party beneficiary, the Goonewardene court held
these allegations insufficient to state a claim. As to the first
prong that the third party is likely to benefit from the contract,
the court assumed without deciding that the hiring of a payroll
company would generally benefit employees with regard to the
wages they receive. (Goonewardene, supra, 6 Cal.5th at p. 835.)
We likewise assume, without deciding, that the retention of an
entity to provide utilization review will generally benefit patients
in making sure patients receive appropriate care.6 That said,
“the fact that the [third party] will generally obtain a benefit
from the contract is not sufficient in itself to authorize the [third
party] to sue . . . under California’s third party beneficiary
doctrine.” (Id. at p. 835.)
As to the second prong, that a motivating purpose of the
contracting parties is to provide a benefit to the third party, the
court held that the plaintiff’s allegations were insufficient
“because providing a benefit to employees is ordinarily not among
the motivating purposes of a contract between an employer and a
payroll company.” (Goonewardene, supra, 6 Cal.5th at p. 837.)
“Instead, the relevant motivating purpose is to provide a benefit
to the employer, with regard to the cost and efficiency of the tasks
performed and the avoidance of potential penalties.” (Id. at
p. 835.)

6 Given that utilization review includes decisions regarding
medical necessity, and potential disapproval of certain
procedures a patient may desire, this assumption is open to
question—particularly given the vague and conclusory assertions
of benefit set forth in the SAC.

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 Finally, as to the last prong that permitting the third party
to bring a breach of contract action against a contracting party is
consistent with the contract’s objectives and the contracting
parties’ reasonable expectations, the court found the plaintiff’s
allegations insufficient. (Goonewardene, supra, 6 Cal.5th at
p. 837.) “[T]here is no need to permit a third party employee to
bring suit to enforce an alleged breach by [the payroll company]
of its obligations under the contract, because [the employer] is
available and is fully capable of pursuing a breach of contract
action against [the payroll company] if, by failing to comply with
its contractual responsibilities, [the payroll company] renders
[the employer] liable for any violation of the applicable wage
orders or labor statutes. Simply put, permitting an employee to
sue [the payroll company] for an alleged breach of its contractual
obligations to [the employer] is not necessary to effectuate the
objectives of the contract.” (Id. at p. 836.) With respect to the
contracting parties’ reasonable expectations, the court held that
interpreting the alleged contract to allow employees to sue the
payroll company “would clearly impose substantial additional
costs on the payroll company,” which “would likely lead a payroll
company to pass these additional litigation costs on to the
employer through a higher price for its payroll services, an
increased cost that an employer would typically prefer to avoid.”
(Ibid.) Given all these deficiencies, the court found the
complaint’s allegations were insufficient to state a cause of action
for breach of contract by the plaintiff against the payroll company
under the third party beneficiary doctrine. (Id. at p. 837.)7

7Compare Lucas v. Hamm (1961) 56 Cal.2d 583, in which
our Supreme Court held that the intended beneficiaries of a will

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 The trial court here properly sustained the demurrer to the
breach of contract claim without leave to amend because
Shankar’s third party beneficiary allegations are insufficient for
the reasons explained in Goonewardene. Shankar does not allege
the specific terms of the alleged contracts, nor does he attach a
copy of them. Instead, he alleges on information and belief that
there are contracts (the terms of which he does not know)
between Medpoint and L.A. Care, and Medpoint and Pioneer,
related to Medpoint’s provision of utilization review services. The
alleged terms of these contracts are too vague and conclusory to
demonstrate (as Goonewardene requires at the pleading stage)
that the contracting parties expressly or impliedly authorized
patients to maintain a breach of contract action against
Medpoint.
The SAC’s allegations are insufficient to show a motivating
purpose of the contracts was to provide a benefit to persons like
Shankar, as opposed to providing benefits to the insurer and
Shankar’s primary physician medical group “with regard to the
cost and efficiency of the tasks performed and the avoidance of
potential penalties.” (Goonewardene, supra, 6 Cal.5th at p. 835.)

could sue under a contract between the testator and the attorney
who prepared the will. (Id. at p. 590.) The Goonewardene court
explained that result, noting that “Because, after the testator’s
death, the testator was no longer available to bring a breach of
contract action against the attorney, it was consistent with the
objectives of the contract and the reasonable expectation of the
contracting parties to permit the intended beneficiaries of the
will to bring such an action at that time to enforce the attorney’s
alleged breach of the contract.” (Goonewardene, supra, 6 Cal.5th
at p. 832.)

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 Shankar’s allegations are also insufficient “because it
would be inconsistent with the objectives of the contract and the
reasonable expectations of the contracting parties to permit”
patients to sue Medpoint for an alleged breach of its contract with
either L.A. Care or Pioneer. (Goonewardene, supra, 6 Cal.5th at
p. 837.) The SAC’s allegations do not show that permitting a
patient to sue Medpoint for an alleged breach of its contractual
obligations to L.A. Care and/or Pioneer is necessary to effectuate
the objectives of the purported contracts. (Id. at p. 836.) L.A.
Care and Pioneer are available (and were themselves sued), and
both L.A. Care and Pioneer are fully capable of pursuing a breach
of contract action against Medpoint if, by failing to comply with
its contractual responsibilities, Medpoint renders L.A. Care or
Pioneer liable for any violation of the applicable statutes and
regulations.8 Nor do the allegations show how permitting a third
party to sue is consistent with the contracting parties’ reasonable
expectations. Instead, permitting a patient to sue as a third
party beneficiary on the conclusory allegations set forth in the
SAC “would clearly impose substantial additional costs” on
Medpoint, which would likely lead it and others similarly
situated “to pass these additional litigation costs on to [physician
groups and insurers] through a higher price for its [utilization
review] services, an increased cost that” the contracting parties
“would typically prefer to avoid.” (Id. at p. 836.)

8 We note in this regard that Shankar alleges in this
lawsuit and his related one against Pioneer that both L.A. Care
and Pioneer had the very duty to arrange for a referral to an
infectious disease specialist which he alleges Medpoint is
contractually obligated to provide and which forms the basis for
his breach of contract claim against Medpoint.

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 In sum, we conclude that Shankar fails to plead a viable
breach of contract cause of action. Shankar requests leave to
amend but he fails to carry his burden of showing a “reasonable
possibility that the defect can be cured by amendment.” (Blank v.
Kirwan, supra, 39 Cal.3d at p. 318.) The only amendment
Shankar proposes is to allege “how many contracts were
involved,” but that does not address the more fundamental defect
in his claim which is the lack of factual allegations showing that
the motivating purpose of the alleged contracts was to benefit
him and other patients and that allowing him and other patients
to sue Medpoint is consistent with the reasonable expectations of
the contracting parties. Notably, in sustaining Medpoint’s
demurrer to the breach of contract cause of action as stated in the
first amended complaint, the trial court set out the elements of a
third party beneficiary claim as articulated in Goonewardene and
granted Shankar leave to amend his claim. Yet in his SAC
Shankar failed to allege any additional facts to satisfy the
Goonewardene elements. This, combined with Shankar’s failure
to identify to this court any factual allegations he could add to
satisfy the Goonewardene elements, leads us to conclude that
there is no reasonable possibility Shankar will be able to cure the
defect in his breach of contract cause of action and that the trial
court did not abuse its discretion in denying Shankar leave to
amend.
D. Shankar Fails to Plead a Viable Cause of Action for
Violation of the UCL
The UCL authorizes causes of action, among other things,
to redress “unfair competition.” (§ 17203.) In turn, section 17200
defines “unfair competition” under the UCL as “any unlawful,
unfair or fraudulent business act or practice and unfair,

17
deceptive, untrue or misleading advertising and any act
prohibited by Chapter 1 (commencing with Section 17500) of Part
3 of Division 7 of the Business and Professions Code.” Because
“section 17200 is in the disjunctive, it prohibits practices that are
‘unfair,’ ‘unlawful’ or ‘fraudulent.’ [Citations.]” (Countrywide
Financial Corp. v. Bundy (2010) 187 Cal.App.4th 234, 256.)
Shankar alleges that Medpoint violated section
1300.67.2.2(c)(5)(B), which he contends required Medpoint to
arrange for him to be examined by an infectious disease specialist
within 96 hours, and that this violation was both an “unlawful”
business practice and an “unfair” business practice. As is
discussed below, we conclude that Shankar fails to allege
“unlawful” or “unfair” conduct by Medpoint.
1. Shankar Fails to Plead that Medpoint Engaged in
“Unlawful” Business Practices
Shankar contends his allegation that Medpoint violated
section 1300.67.2.2(c)(5)(B) supports a cause of action under the
UCL for “unlawful” business practices. Medpoint responds, and
we agree, that this regulation only applies to an HCSP. As
Shankar does not contend Medpoint is an HCSP, the complaint
fails to state a claim for unlawful business practices.
As explained above, section 1300.67.2.2(c)(5)(B) applies
only to “[a] health care service plan that provides or arranges for
the provision of hospital or physician services . . . or provides
mental health services pursuant to a contract with a full service
plan.” (Cal. Code Regs., tit. 28, § 1300.67.2.2, subd. (a)(1).)
Health and Safety Code section 1345, subdivision (f) defines a
“ ‘[h]ealth care service plan’ ” (and a “ ‘specialized health care
service plan’ ”) as either of the following: “Any person who
undertakes to arrange for the provision of health care services to

18
subscribers or enrollees, or to pay for or to reimburse any part of
the cost for those services, in return for a prepaid or periodic
charge paid by or on behalf of the subscribers or enrollees.” (Id.,
subd. (f)(1).)
Shankar does allege that L.A. Care is an HCSP. He does
not allege that Medpoint is an HCSP, nor does he allege any facts
suggesting that Medpoint receives “a prepaid or periodic charge
paid by or on behalf of the subscribers or enrollees,” within the
meaning of Health and Safety Code section 1345, subdivision
(f)(1). In addition, the trial court specifically granted Shankar
leave to amend that Medpoint is an HCSP, but Shankar elected
not to amend. “Where . . . ‘ “a plaintiff is given the opportunity to
amend his complaint and elects not to do so, strict construction of
the complaint is required and it must be presumed that the
plaintiff has stated as strong a case as he can.” ’ [Citation.]”
(Tarkington v. California Unemployment Ins. Appeals Bd. (2009)
172 Cal.App.4th 1494, 1502.) Based on the foregoing, we
conclude that Shankar has failed to allege that Medpoint is an
HCSP.
Shankar argues that even if Medpoint is not an HCSP, it
can still be deemed to have engaged in “unlawful” business
practices under the UCL based on three theories. None of his
theories has any merit. The first is that Medpoint “had a
contractual obligation to perform its duties so that the entities
with whom it had contracted complied with their statutory and
regulatory obligations.” But even if Medpoint had such a
contractual duty, it was not bound by the regulation and thus
would not be engaging in “unlawful” conduct by itself failing to
act in accordance with a regulation that does not apply to it.
Shankar’s second theory is that Medpoint “ ‘aided and abetted’

19
other entities in violating the applicable regulations.” Even
assuming an entity can be held liable for aiding and abetting a
violation of the regulation, Shankar does not allege sufficient
facts showing that Medpoint aided and abetted L.A. Care, or any
other HCSP, in violating the regulation. Contrary to Shankar’s
characterization, section 1300.67.2.2(c)(5)(B) does not require
that appointments be scheduled within 96 hours of the request
for an appointment; instead, it requires that an HCSP “ensure
that its network has adequate capacity and availability of
licensed health care providers to offer enrollees appointments
that meet” certain time frames subject to caveats that permit
appointments beyond those guidelines. (Cal. Code Regs., tit. 28,
§ 1300.67.2.2, subds. (c)(5)(B), (G.) Shankar has not and cannot
reasonably allege that Medpoint aided and abetted L.A. Care, or
any other HCSP, in failing to ensure its network of providers was
adequate.
Shankar’s third theory is that conduct is “unlawful” under
the UCL if it subjects a party to liability under tort law, and thus
Medpoint can be found to have acted “unlawfully” if it is found
liable for negligence or IIED. This theory fails because conduct
that subjects a party to tort liability is not the equivalent of
“unlawful” conduct for purposes of the UCL. (See Klein v. Earth
Elements, Inc. (1997) 59 Cal.App.4th 965, 969 [rejecting
argument that claims for strict products liability and breach of
implied warranty of fitness can support a claim of “unlawful”
conduct under the UCL; “While these doctrines do provide for
civil liability upon proof of their elements they do not, by
themselves, describe acts or practices that are illegal or otherwise
forbidden by law”].)

20
 In summary, Shankar has failed to allege that Medpoint
engaged in “unlawful” business practices in violation of the UCL.
2. Shankar Fails to Plead that Medpoint Engaged in
“Unfair” Business Practices
Shankar’s UCL cause of action is considered a “consumer”
case. (See Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163, 187, fn. 12 [distinguishing
between “an action by a competitor alleging anticompetitive
practices” and “actions by consumers or by competitors alleging
other kinds of violations of the unfair competition law”].) “In this
court, the test for determining whether a business practice is
unfair in consumer cases arising under the UCL is the same as
that used under section 5 of the Federal Trade Commission Act
(15 U.S.C. § 45(n)). (Camacho v. Automobile Club of Southern
California (2006) 142 Cal.App.4th 1394, 1403 . . . ; Klein v.
Chevron U.S.A., Inc.[ (2012)] 202 Cal.App.4th [1342,] 1376 &
fn. 14.) ‘[A] business practice is “unfair” if (1) the consumer
injury is substantial; (2) the injury is not outweighed by any
countervailing benefits to consumers or competition; and (3) the
injury could not reasonably have been avoided by consumers
themselves.’ (Klein, at p. 1376 & fn. 14 [applying and following
Camacho].)” (Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th
870, 880.)
We conclude Shankar’s allegations are not sufficient to
show that Medpoint engaged in “unfair” conduct under the UCL.
Shankar alleges that Medpoint’s “conduct . . . in violating . . .
[section] 1300.67.2.2(c)(5)(B) also constituted unfair business
practices” under the UCL. However, as discussed above in
connection with Shankar’s claim under the “unlawful” prong of
the UCL, section 1300.67.2.2(c)(5)(B) does not apply to Medpoint,

21
which is not alleged to be an HCSP. Shankar’s allegation that
Medpoint violated section 1300.67.2.2(c)(5)(B) is a legal
contention we do not accept as true. (Blank v. Kirwan, supra, 39
Cal.3d at p. 318.) Shankar further alleges “(i) the conduct is a
violation of public policy that is explicitly tethered to a specific
regulatory provisions [sic]; (ii) the conduct offends established
public policy and is unethical, oppressive, unscrupulous, and
substantially injurious to consumers; and (iii) the injury is
substantial, and it is neither outweighed by countervailing
benefits nor avoidable by victims of that conduct.” These
allegations are legal or factual conclusions that parrot tests
adopted by various courts for determining whether conduct is
“unfair” under the UCL, including the test adopted by this court
in Rubenstein v. The Gap, Inc., supra, 14 Cal.App.5th at page
880. (See Blank v. Kirwan, supra, at p. 318 [in ruling on a
demurrer a court does not accept as true “ ‘contentions,
deductions or conclusions of fact or law’ ”].) These allegations do
not support Shankar’s UCL claim because they do not identify
any specific conduct by Medpoint that was allegedly an “unfair”
practice under the UCL, and because as explained above
Medpoint was not bound by the regulation on which Shankar
relies.
Therefore, we conclude that Shankar fails to state a claim
under the “unfair” practices prong of the UCL. The trial court
afforded Shankar three opportunities to state a claim for “unfair”
practices under the UCL before denying him further leave to
amend. Shankar’s appellate briefing does not identify any
further allegations he could make that would state a viable claim
of “unfair” practices under the UCL. Therefore, the trial court

22
did not abuse its discretion in granting the demurrer to the UCL
“unfair” practices claim without leave to amend.
E. Shankar Fails to Plead a Viable Class Action with
Respect to his Negligence and IIED Causes of Action
We turn finally to the trial court’s sustaining of the
demurrer to the class action allegations on the negligence and
IIED causes of action.9 “Class actions are statutorily authorized
‘when the question is one of common or general interest, of many
persons, or when the parties are numerous, and it is
impracticable to bring them all before the court . . . .’ (Code Civ.
Proc., § 382.)” (Newell v. State Farm General Ins. Co. (2004) 118
Cal.App.4th 1094, 1100.) “The party advocating class treatment
must demonstrate the existence of an ascertainable and
sufficiently numerous class, a well-defined community of interest,
and substantial benefits from certification that render proceeding
as a class superior to the alternatives. [Citations.]” (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021
(Brinker).) “ ‘[T]he “community of interest requirement embodies
three factors: (1) predominant common questions of law or fact;
(2) class representatives with claims or defenses typical of the

9 In his reply brief, Shankar references a document
published by the Department of Managed Health Care which he
claims “provides useful and interesting information about
business entities such as Med[p]oint.” Shankar indicates he is
not requesting us to take judicial notice of the document, but
suggests we “may wish to do so” on our own motion. We do not
take judicial notice of this document, and we will not consider
information outside the record which is presented for the first
time in the reply brief.

23
class; and (3) class representatives who can adequately represent
the class.” ’ [Citation.]” (Ibid.)
1. Standard of Review
The general principles regarding review of an order
granting a demurrer apply to review of an order granting a
demurrer to class allegations. (Newell v. State Farm General Ins.
Co., supra, 118 Cal.App.4th at pp. 1099-1100; see Blakemore v.
Superior Court (2005) 129 Cal.App.4th 36, 54 [review of order
granting motion to strike class action allegations is de novo].)
Thus, “ ‘[t]he reviewing court gives the complaint a reasonable
interpretation, and treats the demurrer as admitting all material
facts properly pleaded. [Citations.] The court does not, however,
assume the truth of contentions, deductions or conclusions of law.
[Citation.]’ ” (Newell, supra, at pp. 1099-1100, quoting Aubry v.
Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
“When class certification is challenged by demurrer, ‘the
trial court must determine whether “there is a ‘reasonable
possibility’ plaintiffs can plead a prima facie community of
interest among class members . . . .” [Citation.] “ ‘The ultimate
question in every case of this type is whether, given an
ascertainable class, the issues which may be jointly tried, when
compared with those requiring separate adjudication, are so
numerous or substantial that the maintenance of a class action
would be advantageous to the judicial process and to the
litigants.’ [Citations.]” (Newell v. State Farm General Ins. Co.,
supra, 118 Cal.App.4th at p. 1101, quoting Silva v. Block (1996)
49 Cal.App.4th 345, 349-350.) The answer to this question
“hinges on ‘whether the theory of recovery advanced by the
proponents of certification is, as an analytical matter, likely to
prove amenable to class treatment.’ [Citation.]” (Brinker, supra,

24
53 Cal.4th at p. 1021.) “ ‘As a general rule if the defendant’s
liability can be determined by facts common to all members of the
class, a class will be certified even if the members must
individually prove their damages.’ [Citations.]” (Id. at p. 1022.)
Thus, “[t]o assess predominance, a court ‘must examine the
issues framed by the pleadings and the law applicable to the
causes of action alleged.’ [Citation.] It must determine whether
the elements necessary to establish liability are susceptible of
common proof or, if not, whether there are ways to manage
effectively proof of any elements that may require individualized
evidence.”10 (Brinker, supra, 53 Cal.4th at p. 1024.)
2. Shankar’s Cause of Action for Negligence is not
Amenable to Resolution on a Class-wide Basis
“To establish a cause of action for negligence, the plaintiff
must show that the ‘defendant had a duty to use due care, that he
breached that duty, and that the breach was the proximate or
legal cause of the resulting injury.’ [Citation.]” (Brown v. USA
Taekwondo (2021) 11 Cal.5th 204, 213.) While the existence of
duty is a legal question for the court (ibid.), whether a party has
breached a legal duty generally depends on the facts present in
each case. “ ‘[N]egligence is conduct which falls below the
standard established by law for the protection of others against
unreasonable risk of harm.’ [Citation.] Thus, as a general
proposition one ‘is required to exercise the care that a person of

10 Shankar argues that “Nowhere in [Brinker], nor in any
other published opinion, is there any indication that the criteria
to be analyzed [to determine whether a case can proceed as a
class action] depend upon the particular legal theory or cause of
action being advanced against a particular defendant.” As shown
by the above quotation, Brinker stands for this very proposition.

25
ordinary prudence would exercise under the circumstances.’
[Citations.] Because application of this principle is inherently
situational, the amount of care deemed reasonable in any
particular case will vary, while at the same time the standard of
conduct itself remains constant, i.e., due care commensurate with
the risk posed by the conduct taking into consideration all
relevant circumstances. [Citations].” (Flowers v. Torrance
Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997, fn.
omitted; see Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546
[“In most cases, courts have fixed no standard of care for tort
liability more precise than that of a reasonably prudent person
under like circumstances”].)
Assuming for purposes of argument that Medpoint owes a
duty of due care to patients with respect to arranging evaluations
by medical specialists, whether Medpoint breached that duty is a
question of fact that must be decided independently with regard
to each patient.11 The evidence upon which the reasonableness of
Medpoint’s action will be determined is different for each patient,
and will involve the patient’s specific medical condition, how

11 Shankar contends that “[t]he [c]ourt must assume as
true the allegations in the SAC pertaining to [Medpoint], namely
that it brazenly violates applicable regulations and the standards
of the medical profession by delaying and denying referrals to
specialty physicians, and that such conduct is causing substantial
suffering, severe physical harm, or death to a large number of
individuals, likely in the thousands.” However, Shankar does not
identify any such allegations, and he does not allege that he has
any knowledge of Medpoint’s handling of referrals for other
patients. We cannot reasonably infer from Shankar’s allegations
regarding Medpoint’s handling of his referral that Medpoint has
a policy or practice of handling all referrals in the same manner.

26
urgently the patient needed to see a specialist, and the
availability of an appropriate medical specialist.12
Shankar’s proposed class definition encompasses patients
“who were unable to obtain specialty medical services in
compliance with the specific deadlines imposed by the California
Code of Regulations.” To the extent Shankar contends that
Medpoint can be held liable for negligence whenever it fails to
arrange for a specialty consultation within specific time frames,
his contention fails. The regulation Shankar relies upon—section
1300.67.2.2(c)(5)—does not apply to Medpoint, which is not
alleged to be an HCSP. (Cal. Code Regs., tit. 28,
§ 1300.67.2.2(a)(1).) Furthermore, while that regulation imposes
a duty on an HCSP to “ensure that its network has adequate
capacity and availability of licensed health care providers to offer
enrollees appointments that meet” certain timeframes (id.,
§ 1300.67.2.2.(c)(5)(C)), it also makes clear those timeframes are
not hard and fast rules. The regulation goes on to state that
“[t]he applicable waiting time for a particular appointment may
be extended if the referring or treating licensed health care
provider, or the health professional providing triage or screening
services, as applicable, acting within the scope of his or her

12 Depending on the facts specific to each patient, Medpoint
could be entitled to raise various issues such as whether a
referral was even medically necessary. We disagree with
Shankar’s argument that “[t]he necessity of medical care is
determined by the primary care provider if referral to a specialist
is necessary.” While the primary care provider’s opinion may be
relevant if the necessity of specialized care is a disputed issue,
Medpoint would be entitled to present contrary evidence and
have the fact-finder decide the issue if it is disputed.

27
practice and consistent with professionally recognized standards
of practice, has determined and noted in the relevant record that
a longer waiting time will not have a detrimental impact on the
health of the enrollee” (id., § 1300.67.2.2.(c)(5)(G)), and further
that certain types of services and follow up care “may be
scheduled in advance consistent with professionally recognized
standards of practice as determined by the treating licensed
health care provider acting within the scope of his or her
practice.” (Id., § 1300.67.2.2.(c)(5)(H).) Moreover, a different
subdivision sets a less specific requirement that an HCSP “shall
provide or arrange for the provision of covered health care
services in a timely manner appropriate for the nature of the
enrollee’s condition consistent with good professional practice.”
(Id., § 1300.67.2.2(c)(1); see Health and Saf. Code, § 1367.03,
subd. (a)(1) [an HCSP “that provides or arranges for the provision
of hospital or physician services . . . [¶] . . . shall provide or
arrange for the provision of covered health care services in a
timely manner appropriate for the nature of the enrollee’s
condition consistent with good professional practice”].)
In short, even assuming that these regulatory standards
could be applied to Medpoint (which is not alleged to be an
HCSP) through negligence law, determining whether this
standard has been met cannot be accomplished on a class-wide
basis. As shown by the above regulations, the time frame in
which any patient is seen depends on highly individualized
determinations regarding among other things the medical
condition(s) at issue, the nature of the referral, the professional
judgment of the physicians making the referral as well as those
treating the referred patient, and any potential detriment (or
lack thereof) in a longer waiting time.

28
 In addition, to establish liability each patient must not only
show a breach of duty by Medpoint but must also show that the
breach caused them a cognizable injury. Such a showing must be
made on an individualized, case-by-case basis for each patient,
and the nature and amount of damages will vary significantly
from patient to patient. Even if there has been an unreasonable
delay in scheduling a patient’s referral to a medical specialist, it
does not necessarily follow that the patient has been injured. For
example, it might be that the patient’s condition does not cause
any pain or discomfort and does not deteriorate. And even if a
patient experiences pain or discomfort, or their condition
deteriorates, it does not necessarily follow that seeing a specialist
sooner would have made the situation better. Finally, if patients
were in fact injured, the extent of those injuries will vary
significantly from patient to patient based on a host of
individualized factors.
In sum, Medpoint’s liability to class members under a
negligence theory will depend on individualized proof relating to
the specific circumstances of each patient. Conversely, Shankar
fails to identify any common issues. In his opening brief, he
argues that “[t]he key common question is how often [Medpoint]
fails to comply with its obligations in a manner that causes
injury.” This question is stated in extremely vague terms, and
the question how often Medpoint fails to comply with its
obligations is not a common question. In his SAC, Shankar
alleges one common question of fact applicable to his tort claims:
“whether [Medpoint] routinely disregards the standards of the
medical profession as well as California regulations when
arranging for specialty medical services for patients.” Again, this

29
statement is extremely vague, and whether Medpoint acts
“routinely” is not a common question.
This case is similar to Brown v. Regents of University of
California (1984) 151 Cal.App.3d 982, where the plaintiffs sought
to pursue a class action against the University of California,
Davis, Medical Center. The plaintiffs alleged 11 causes of action,
including intentional concealment, negligent and intentional
misrepresentation, and negligence, arising from coronary care
provided by the medical center. (Id. at pp. 986-987.) The trial
court granted the medical center’s demurrer to the class action
allegations, and the Court of Appeal affirmed. (Id. at p. 991.)
The court concluded that the concealment and misrepresentation
claims were not amenable to class wide adjudication because,
among reasons, “A class member’s particular medical condition
and method of treatment must be examined in order to determine
proximate cause of any claimed damage and the actual extent of
such damage.” (Id. at p. 989.) As to the negligence claim, the
court stated, “While the regulations and standards alleged to
have been violated are general enough to apply to any patient,
the proof of the fact of the actual violations and resulting
damages raise substantial individual questions. ‘In general,
mass tort actions for personal injuries are not appropriate for
class-action treatment . . . in that the major elements in tort
actions for personal injuries—liability, causation, and damages—
may vary widely from claim to claim. Reluctance to extend class-
action treatment to mass torts governs even those types of claims
which necessarily contain common questions of law and fact.’ ”
(Id. at p. 991, quoting Rose v. Medtronics, Inc. (1980) 107
Cal.App.3d 150, 155.)

30
 We recognize that the trial court sustained the demurrer to
the class action allegations with leave to amend, noting Shankar
could potentially seek non-damages relief that might potentially
be amenable to class treatment. Shankar, however, makes no
argument for any non-damages relief nor proffers any way in
which he could amend the class action allegations to cure the
defects noted above. We accordingly conclude that there is no
reasonable possibility Shankar will be able to establish a
community of interest among the potential class members with
respect to his cause of action for negligence because individual
issues predominate over common questions of law and fact. The
demurrer to the class allegations as to the negligence cause of
action was therefore properly sustained, and further leave to
amend is not appropriate or necessary.
3. Shankar’s Cause of Action for IIED is not Amenable
to Resolution on a Class-wide Basis
“A cause of action for intentional infliction of emotional
distress exists when there is ‘ “ ‘ “(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.]
A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as
to exceed all bounds of that usually tolerated in a civilized
community.’ ” ’ [Citation.] And the defendant’s conduct must be
‘ “ ‘intended to inflict injury or engaged in with the realization
that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009) 46
Cal.4th 1035, 1050-1051.) “Severe emotional distress means
‘ “emotional distress of such substantial quality or enduring

31
quality that no reasonable [person] in civilized society should be
expected to endure it.” ’ [Citations.]” (Potter v. Firestone Tire &
Rubber Co. (1993) 6 Cal.4th 965, 1004.) In Hughes v. Pair, the
court held that the “plaintiff’s assertions that she has suffered
discomfort, worry, anxiety, upset stomach, concern, and agitation
. . . do not comprise ‘ “ ‘emotional distress of such substantial
quality or enduring quality that no reasonable [person] in
civilized society should be expected to endure it.’ ” ’ [Citation.]”
(Hughes, supra, at p. 1051.)
Thus, in order for a would-be class member to establish
that Medpoint is liable to them for IIED, they would have to
prove that Medpoint engaged in “extreme and outrageous
conduct,” that Medpoint intended to cause that class member to
suffer emotional distress or acted with reckless disregard of
causing the class member emotional distress, that they suffered
“severe or extreme emotional distress,” and that their emotional
distress was proximately caused by Medpoint’s conduct. All of
these elements require highly individualized proof and, thus,
there is no reasonable possibility that Shankar will be able to
establish a community of interest among the potential class
members. (See Bennett v. Regents of University of California
(2005) 133 Cal.App.4th 347, 359 [trial court did not abuse its
discretion in finding that the difficulty of establishing each class
member’s claim outweighed the benefit of jointly trying common
issues where class members would have had to prove severe
emotional distress].)
In conclusion, Shankar’s IIED cause of action, like his
negligence cause of action, is unsuitable for class-action
treatment. There is no reasonable possibility that Shankar can
plead a prima facie community of interest among class members

32
with respect to his causes of action for negligence or IIED because
individual issues predominate over common issues for both
causes of action. As with the negligence cause of action, Shankar
makes no argument for any non-damages relief nor proffers any
way in which he could amend the class action allegations to cure
the defects noted above. The demurrer to the class allegations as
to the IIED cause of action was therefore properly sustained, and
further leave to amend is not appropriate or necessary.
DISPOSITION
We affirm the trial court’s order sustaining Medpoint’s
demurrer to Shankar’s causes of action for breach of contract and
violation of the UCL without leave to amend, and to the class
action allegations related to Shankar’s causes of action for
negligence and IIED. We reverse the trial court’s grant of further
leave to amend the class action allegations on the negligence and
IIED claims, and deny Shankar further leave to amend those
allegations. Medpoint is awarded its costs on appeal.
NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

33