                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 30 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CALIFORNIA SPINE AND                            No. 19-15192
NEUROSURGERY INSTITUTE, DBA San
Jose Neurospine, a California corporation,      DC No. 4:18 cv-04777-PJH

                Plaintiff-Appellant,
                                                MEMORANDUM*
 v.

BLUE CROSS OF CALIFORNIA, DBA
Anthem Blue Cross,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                       Argued and Submitted June 12, 2020
                            San Francisco, California

Before:      TASHIMA and HUNSAKER, Circuit Judges, and SELNA,** District
             Judge.

      California Spine and Neurosurgery Institute, dba San Jose Neurospine

(“California Spine”), appeals from the district court’s judgment dismissing its


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable James V. Selna, Senior United States District Judge
for the Central District of California, sitting by designation.
claims under the Employment Retirement Income Security Act of 1974 (“ERISA”)

against Blue Cross of California, dba Anthem Blue Cross (“Blue Cross”). We

have jurisdiction under 28 U.S.C. § 1291. The district court concluded that the

ERISA plan’s anti-assignment provision required dismissal of this action and that

Blue Cross had neither waived the anti-assignment provision, nor could be

equitably estopped from asserting the provision. We review de novo a district

court’s dismissal for failure to state a claim. Puri v. Khalsa, 844 F.3d 1152, 1157

(9th Cir. 2017).

      1.     The district court erred in determining waiver was inapplicable.

California Spine alleged that it notified Blue Cross it would provide surgical

services to a member of an ERISA plan administered by Blue Cross. Later,

California Spine submitted a reimbursement claim to Blue Cross indicating it was

acting as the member’s assignee, and Blue Cross partially denied the claim on a

basis other than the anti-assignment provision. These allegations are sufficient to

plead that Blue Cross waived its ability to rely on the anti-assignment provision.

See Spinedex Physical Therapy USA Inc. v. United Healthcare of Ariz., Inc., 770

F.3d 1282, 1296 (9th Cir. 2014) (considering an anti-assignment provision and

explaining that “an administrator may not hold in reserve a known or reasonably

knowable reason for denying a claim, and give that reason for the first time when

the claimant challenges a benefits denial in court.”); Harlick v. Blue Shield of Cal.,


                                          2                                      19-15192
686 F.3d 699, 720 (9th Cir. 2012) (“ERISA and its implementing regulations are

undermined where plan administrators have available sufficient information to

assert a basis for denial of benefits, but choose to hold that basis in reserve rather

than communicate it to the beneficiary.” (internal quotation marks and citations

omitted)).

      2.     The district court also erred in concluding that California Spine failed

to satisfy three equitable estoppel factors. California Spine sufficiently alleged that

it was not aware of the true facts, the anti-assignment provision was ambiguous,

and Blue Cross’s representations were not an impermissible amendment or

modification of the plan. See Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 945,

955-57 (9th Cir. 2014) (setting forth equitable estoppel factors in an ERISA

action). Because the district court analyzed only three of the equitable estoppel

factors, see id., the record is insufficiently complete for us to determine whether

the district court erred in its equitable estoppel analysis. We decline to reach the

remaining factors for the first time on appeal.

      Accordingly, we reverse the district court’s judgment as to waiver and

vacate the judgment as to equitable estoppel. The district court should consider the

remaining estoppel factors on remand.

      Each party shall bear its own costs on appeal.

      REVERSED in part, VACATED in part, and REMANDED.


                                           3                                     19-15192
