United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO. 10, 12,
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE
Norine Sylvia Cave brings this action against defendant Delta
Dental of California (“Delta Dental”), alleging
claims of bad faith and a violation of Cave's civil
rights under the Health Insurance Portability and
Accountability Act (HIPAA). Delta Dental moves to dismiss all
claims against it. Because I find that Cave's alleged
claims fail as a matter of law, I DISMISS WITH PREJUDICE
Cave's bad faith and HIPAA claims. But given Rule
15's liberal amendment standard, I GRANT Cave's
request to amend her complaint to add claims under section
502 of the Employee Retirement Income Security Act (ERISA).
obtained dental benefits through the Entertainment Industry
Flex Plan, group number 07578-00001. Complaint (Compl.), Ex.
G at 1 (Dkt. No. 1). On October 21, 2013, Cave consulted with
Dr. Suvidha Sachdeva of Coast Dental of Georgia for dental
services. Id. ¶ 4. As a part of that
consultation, Cave received a comprehensive exam and Dr.
Sachdeva recommended crown replacements of allegedly
fractured veneers on teeth #8 and #9, indicating that the
teeth could no longer support veneers due to decay.
Id. Approximately three months later, Dr. Sachdeva
initiated the procedure to replace the crowns on teeth #8 and
#9. Id. The next day Dr. Sachdeva submitted a
benefits claim to Delta Dental for the crowns. Id.
April 30, 2014, Cave filed a grievance with Delta Dental,
indicating that she suspected that Dr. Sachdeva had committed
fraud in recommending crown replacements. Id.
Specifically, upon review of Cave's x-rays and
documentation, other doctors suggested that teeth #8 and #9
did not require replacement of the veneers. Id. Cave
believes that Dr. Sachdeva diagnosed otherwise in order to
receive payment for the unnecessary dental treatment.
Id. She alleges that once she filed this grievance,
Delta Dental should have examined all records and x-rays to
determine whether she actually needed her veneers replaced
rather than approved the claim by Dr. Sachdeva. Id.
Dental (a California corporation) responded to Cave's
grievance, informing her that California Health and Safety
Code section 1371.5, provides that Delta Dental and Dr.
Sachdeva are responsible for their own acts or omissions and
not liable for the acts and omissions of each other.
Id. ¶ 5, Ex. B. It also advised her that
“the diagnosis for crowns for [her] teeth numbers 8 and
9 were one of the appropriate treatments of choice due to Dr.
Sachdeva's documentation that the existing veneers 8 and
9 were chipped.” Id., Ex. B. But it further
told her that it was “unable to confirm or deny the
acceptability of  crown numbers 8 and 9” because Dr.
Sachdeva did not submit x-rays of diagnostic quality, meaning
that Delta Dental's dental consultant could not have
determined whether she needed new crowns prior to Dr.
Sachdeva's decision to replace her veneers. Id.
Cave alleges that a proper review of the x-rays should have
resulted in Delta Dental not paying the claim because the
x-rays did not reveal any condition that would justify crown
treatments. Id.¶ 6.
2014, Cave requested copies of the treatment plan and x-rays
submitted to Delta Dental by Dr. Sachdeva for her review.
Id. ¶ 7. Delta Dental denied the request,
stating that California Health and Safety Code section 1370
protects the documents that Cave requested from discovery.
Id., Ex. C. It advised her that she could request
copies of treatment notes from the dentist directly under
section 123110 of California's Health and Safety Code,
requiring that a dentist provide copies of x-rays and records
upon written request. Id. It also noted that Georgia
may have a similar law. Id.
September 10, 2014, Cave responded to Delta Dental's
letter with “viable and sufficient” x-rays in
addition to photographs of teeth #8 and #9, taken both before
and after the new crowns. Id. ¶ 9. According to
Cave, these documents demonstrate that her healthy tooth
structure made Dr. Sachdeva's crown placements
unnecessary. Id. Delta Dental responded to this new
information in a letter dated October 4, 2014, standing by
its prior determination that it was Dr. Sachdeva's
responsibility-and not Delta Dental's-to choose the
appropriate treatment plan. Id., Ex. D at 2.
later, Cave served Delta Dental with a request for
“production of documents to a non-party” in
connection with litigation she had commenced against Dr.
Sachdeva in Fulton County, Georgia. Id. ¶ 14.
Delta Dental objected to the request for production based on
California Evidence Code section 1157 and Health and Safety
Code section 1370. Id.
January 24, 2018, Cave filed this action in the Superior
Court of California, County of San Francisco. She asserts two
causes of action: bad faith and violation of her civil rights
under HIPAA. Delta Dental removed the case to the Northern
District of California and now moves to dismiss. After it
filed its motion to dismiss, Cave filed a motion for
continuance, requesting that the hearing on Delta
Dental's motion to dismiss be postponed until the
Department of Health and Human Services Office of Civil
Rights finished its investigation of a complaint Cave filed.
Dkt. No. 18.
reasons explained below, I DENY Cave's request to
postpone consideration of Delta Dental's motion to
dismiss or otherwise stay this case pending the resolution of
the DHR OCR investigation. I GRANT Delta Dental's motion
to dismiss Cave's claims for bad faith because it is
preempted by ERISA and her HIPAA claim because there is no
private right of action under HIPAA. Those claims are
DISMISSED WITH PREJUDICE. However, I am granting Cave leave
to amend to assert a breach of fiduciary duty claim under
Federal Rule of Civil Procedure 12(b)(6), a district court
must dismiss a complaint if it fails to state a claim upon
which relief can be granted. To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must allege “enough
facts to state a claim to relief that is plausible on its
face.” See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible when the
plaintiff pleads facts that “allow the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). There must be
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. While courts do not