Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VC 047299. Raul A. Sahagun, Judge.
Balisok & Associates, Inc., Russell S. Balisok and Steven C. Wilheim for Plaintiff and Appellant.
Manatt, Phelps & Phillips, Gregory N. Pimstone, Adam Pines and Joanna S. McCallum, for Defendant and Respondent.
ROTHSCHILD, J.
Moses Espinoza filed suit against several individuals and entities including California Physicians’ Service doing business as Blue Shield of California (Blue Shield) concerning the death of his brother. The trial court sustained Blue Shield’s demurrer without leave to amend and entered judgment dismissing Blue Shield. We affirm.
Plaintiff’s appellate briefs identify him as “Moises Espinoza.” His original complaint, however, identified him as “Moses Espinoza,” and his first amended complaint identified him as “Moses Espinoza, (aka Moises Espinoza).”
Our factual summary is drawn from the properly pleaded factual allegations of the original complaint and the first amended complaint, which we must assume to be true. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Plaintiff Moses Espinoza is both the brother of decedent Ruben Espinoza and the administrator of his estate. At all relevant times before Ruben died, he was enrolled in a Medicare health maintenance organization plan offered by defendant Blue Shield.
Because they share a last name, we will hereafter refer to plaintiff and plaintiff’s decedent by their first names. No disrespect is intended.
On or about September 1, 2004, Ruben was admitted to the hospital “for care and treatment.” “Within days” he was transferred to a “skilled nursing facility” for “rehabilitation and therapy.” He was transferred to a hospital on or about September 16, 2004, then transferred back to the skilled nursing facility on September 24, 2004, where he remained until he died on November 29, 2004. The first amended complaint alleges that Ruben received substandard care in various respects, including inadequate pain management, hydration, and nutrition.
The first amended complaint contains a reference to “knee replacement surgery,” but it does not allege that the knee replacement surgery is the “care and treatment” for which Ruben was admitted to the hospital on September 1, 2004.
The first amended complaint says “July 16, 2004,” but that appears to be a typographical error.
Moses filed suit on behalf of Ruben’s estate against Blue Shield, the operator of the skilled nursing facility, the provider of physician services with which Blue Shield contracted, two individual physicians, and thirty Doe defendants, alleging seven causes of action. The causes of action alleged against Blue Shield were negligence, “wil[l]ful misconduct,” elder abuse, and wrongful death.
Blue Shield demurred to all of the claims against it on various grounds, arguing, inter alia, that Moses failed to allege facts sufficient to constitute a cause of action and that his claims were preempted by federal law. The trial court sustained the demurrer with leave to amend. Moses filed a first amended complaint, and Blue Shield again demurred to all of the claims against it on multiple grounds. The court sustained the demurrer without leave to amend.
The court entered judgment in favor of Blue Shield on October 22, 2007. Moses timely appealed.
DISCUSSION
In the trial court, Moses argued on the basis of McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, that his claims against Blue Shield are not preempted by federal law, and the trial court seems to have agreed. On appeal, Blue Shield argues, as it did in the trial court, that McCall v. PacifiCare of Cal., Inc., supra, is not controlling on that point because it was superseded by a 2003 legislative amendment that broadened the preemption provision in the federal statute.
On appeal, Moses no longer relies exclusively on McCall v. PacifiCare of Cal., Inc., supra. Instead, he argues for the first time that his claims against Blue Shield are based on duties imposed by state licensing laws, which are expressly exempted from the preemption provision that was enacted in 2003. (See 42 U.S.C. § 1395w-26, subd. (b)(3) [“The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to” Medicare HMO plans].) In support of that argument, Moses cites numerous California statutes and regulations (Health & Saf. Code §§ 1367, 1367.01, 1367.02, 1367.03; Cal. Code Regs., tit. 28, §§ 1300.67.8, 1300.70, 1300.75.4.2, 1300.75.4.5, 1300.76) that, he asserts, impose on Blue Shield the duties underlying his claims.
Moses’s failure to raise this argument in the trial court does not preclude him from raising it on appeal from a dismissal after a demurrer was sustained without leave to amend. (See 20th Century Ins. Co. v. Quackenbush (1998) 64 Cal.App.4th 135, 139, fn. 3.)
Assuming for the sake of argument that the cited statutes and regulations are licensing laws within the meaning of the exemption in the federal preemption provision, Moses’s argument fails because he has not adequately developed it or supported it with citations to the record. Moses never identifies the precise statutory or regulatory duties that Blue Shield is alleged to have violated, and he never cites any factual allegations in either the original complaint or the first amended complaint that purportedly show such a violation.
We presume that the decision of the trial court is correct, and we review only the decision itself, not the trial court’s reasoning. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631; J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.) In order to prevail, an appellant must demonstrate both that the trial court’s decision was erroneous and that the error was prejudicial. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) “[A]ny reference to a matter in the record” must be supported by a proper citation to the record (Cal. Rules of Court, rule 8.204(a)(1)(C)), and we “need not consider” such matters if no such citation is given (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16). Thus, even on de novo review, we need not consider points that are not supported by adequate argument and citation to authorities and the record. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
The trial court determined that Moses had not alleged facts sufficient to constitute a cause of action against Blue Shield. In order to show that the court prejudicially erred, Moses would have to show that he did allege facts sufficient to state a cause of action against Blue Shield. And in order to do that, Moses would have to cite factual allegations in his pleadings that show Blue Shield violated the duties imposed by the statutes and regulations he cites. Because Moses does not do that, his challenge to the trial court’s ruling cannot succeed.
Moses does not argue that, if given the opportunity, he could allege additional facts to support his claims against Blue Shield, so the possibility of granting leave to amend is not at issue. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081 [on appeal the plaintiff bears the burden of demonstrating that if granted leave to amend he could allege facts sufficient to cure the defects in the complaint].)
A few examples will illustrate the problem. After stating generally that Blue Shield had a “duty to provide or contract with those health providers who can meet the needs of enrollees,” Moses cites two statutes and five regulations. One of the cited regulations provides that “[a] plan that has capitation or risk-sharing contracts must . . . [e]nsure that each contracting provider has the administrative and financial capacity to meet its contractual obligations” and also must “have systems in place to monitor [quality assurance] functions.” (Cal. Code Regs., tit. 28, § 1300.70, subd. (b)(2)(H)(1).) Moses cites no factual allegations showing that Blue Shield failed to ensure that its providers had the administrative and financial capacity to meet their contractual obligations—he does not even cite allegations identifying any contractual obligations that Blue Shield’s providers allegedly were incapable of meeting. Nor does he cite any allegations showing that Blue Shield failed to have the required systems to monitor quality assurance functions.
Another of the cited regulations imposes certain requirements concerning a plan’s contracts with providers, relating to confidentiality, record keeping, and surcharges. (Cal. Code Regs., tit. 28, § 1300.67.8.) But, again, Moses fails to identify which of those requirements Blue Shield’s contracts allegedly violated, and he cites no factual allegations showing any such violation. To repeat, in the entire 40-page argument section of his opening brief, Moses does not once cite or quote a factual allegation of the original complaint or the first amended complaint as showing a violation of any of the duties imposed by the statutes and regulations he cites.
Similarly, Moses cites two statutes to support his assertion that Blue Shield had a “duty to conduct utilization review to ensure that enrollees receive reasonably needed health care without delay.” One of those statutes (Health & Saf. Code, § 1367.01) has thirteen subdivisions (one of which has six subdivisions of its own), dealing with such matters as the written policies and procedures that plans are required to have (id., § 1367.01, subd. (b)) and the maintenance of telephone access for providers to request authorization for health care services (id., § 1367.01, subd. (i)). The other statute (id., § 1367.03) has nine subdivisions (several of which have multiple subdivisions of their own), requiring the Department of Managed Health Care to develop and adopt regulations concerning the timely provision of medical care (id., § 1367.03, subd. (a)), requiring that the contracts between plans and providers assure compliance with the regulatory standards (id., § 1367.03, subd. (f)(1)), and dealing with related matters. Once again, Moses neither identifies which of all of those statutory requirements were allegedly violated nor cites or quotes any factual allegations showing such a violation.
For all of the foregoing reasons, Moses has failed to carry his burden on appeal. We therefore affirm the trial court’s dismissal of Blue Shield.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs of appeal.
We concur: MALLANO, P. J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.