Marie Fortier, on behalf of herself and all others similarly situated v. ANTHEM, INC., and ANTHEM UM SERVICES, INC.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIE FORTIER, on behalf of herself and
all others similarly situated,
Appellant,
v.
ANTHEM, INC., and ANTHEM UM
SERVICES, INC.,
Appellees.
No. 20-56361
D.C. No.
2:20-cv-04952-MCS-MAA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Submitted October 22, 2021**
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District
Judge.
Concurrence by Judge FORREST.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
NOV 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Marie Fortier, on behalf of herself and all others similarly situated, appeals
the district court’s dismissal of her complaint. She claims that Anthem, Inc. and
Anthem UM Services, Inc. (collectively “Anthem”) wrongfully refused coverage for
a peripheral nerve stimulation (“PNS”) treatment for chronic pain in violation of 29
U.S.C. §§ 1132(a)(1)(B) and (a)(3). We have jurisdiction under 28 U.S.C. § 1291.
Reviewing the “district court’s dismissal of a complaint de novo,” Wilson v. Craver,
994 F.3d 1085, 1089 (9th Cir. 2021), we affirm.
1. Fortier challenges Anthem’s determination that her treatment was
“investigative” and “not medically necessary” under the plan’s terms. Her main
contention is that the medical policy that stated that PNS was investigative and not
medically necessary was not part of the plan and could not supplant the definitions
of those terms contained in the plan. “Under California law, for one document to
incorporate another document by reference, ‘[t]he reference to the incorporated
document must be clear and unequivocal and the terms of the incorporated document
must be known or easily available to the contracting parties.’” Cariaga v. Local No.
1184 Laborers Int’l Union of N. Am., 154 F.3d 1072, 1074 (9th Cir. 1998) (alteration
in original) (quoting Slaught v. Bencomo Roofing Co., 30 Cal. Rptr. 2d 618, 621 (Ct.
App. 1994) (internal citations omitted)).
The district court correctly determined that the plan incorporated the medical
policy. The plan states that Anthem “uses clinical coverage guidelines, such as

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medical policy, clinical guidelines, and other applicable policies . . . to help make
medical necessity decisions” and counts “medical policy” as a “source[]” alongside
“clinical guidelines.” The plan also informs members that, upon an adverse benefit
determination, the claims administrator would give “a copy” of any “internal rule,
guideline, protocol, or other similar criterion relied upon in making the claim
determination” to the member. Moreover, the plan explicitly gives participants the
ability to learn more about the medical policy: “If you have any questions about the
utilization review process, the medical policies or clinical guidelines, you may call
the Member Services phone number on the back of your Identification Card.” These
statements all would inform a reader that the medical policies were substantive
documents and would “guide the reader to the incorporated document.” Cariaga,
154 F.3d at 1074.
The medical policy clearly states that PNS is investigative and not medically
necessary. Since the medical policy is part of the plan, that determination is
conclusive. Moreover, the medical policy does not conflict with the plan’s
definitions. It presents an application of the plan’s definitions, even if it is an
application of which Fortier disapproves. Accordingly, PNS is not covered by the
plan and Fortier’s denial of benefits claim under § 1132(a)(1)(B) fails.
2. The district court properly held that Fortier’s claim for equitable relief
under § 1132(a)(3) was only “superficially distinct” from her claim for a denial of

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benefits. Because the denial of benefits claim fails, so too does the claim for
equitable relief. Fortier argues that the equitable claim relies on a distinct theory of
liability, that Anthem “breached its fiduciary duty by implementing internal policy
guidelines inconsistent with her plan.” Kazda v. Aetna Life Ins. Co., No. 19-cv-
2512, 2019 WL 6716306, at *1 (N.D. Cal. Dec. 10, 2019). But, as explained above,
the plan and the medical policy are not inconsistent. Therefore, Fortier’s purportedly
distinct legal theory, which requires an inconsistency, fails to state a claim.
AFFIRMED.

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Fortier v. Anthem, Inc., Case No. 20-56361
Forrest, Circuit Judge, concurring:
I concur in the judgment.
FILED
NOV 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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