ORDER GRANTING-IN-PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

PAUL S. GREWAL, United States Magistrate Judge.

Two years ago, a patient insured by Defendant Aetna Life Insurance Company sought treatment on three separate occasions from Plaintiff Community Hospital of the Monterey Peninsula. Aetna verified that the patient was eligible for coverage, but refused CHOMP's demand that it pay 100 percent of the charges billed. CHOMP then filed this suit against Aetna, alleging that Aetna's refusal to pay $167,704.11 plus interest constituted, among other things, negligent misrepresentation, breach of implied contract and unfair competition.1 Aetna now seeks summary judgment on all but one of CHOMP's claims. With certain exceptions noted below, the court agrees with Aetna that the causes of action at issue do not concern disputed material facts and must be resolved in Aetna's favor as a matter of law.

I.

Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Material facts are those that may affect the outcome of the case.2 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.3 All evidence must be viewed in the light most favorable to the non-moving party.

CHOMP is a health care provider doing business primarily in Monterey County, California. Aetna provides and administers health care benefits plans to members. CHOMP and Aetna "had a preferred provider agreement in place until 2011 which called for payment by [Aetna] of 100% of the billed charges for services provided to its members. [But] that agreement expired on January 1, 2011."4 This case centers on CHOMP's allegation that during the time CHOMP was an out-of-network noncontracted provider"5 "Aetna... failed to pay in full the charges due to [CHOMP] concerning the care and treatment provided to Patient" during three separate emergency room visits.6

As to the first visit in February 2013, CHOMP admitted the patient to its emergency room for "severe diabetic ketoacidosis." CHOMP promptly contacted Aetna for authorization to treat the patient, and Aetna verified the patient's insurance eligibility.7 CHOMP alleged that it relied on this verification in treating the patient during her stay at the hospital.8 The day after the patient was released, "Aetna's utilization review department provided express retro-active approval, both oral and written, for the treatment provided to Patient."9 CHOMP later billed Aetna "$87,519.00 for the [February] services provided to Patient."10 Aetna "paid $11,147.14 and denied $76,383.86 on the principal basis that the `[charges] exceed contract.'"11

As to the second visit in July 2013, CHOMP re-admitted the patient to its emergency room for the same medical condition.12 "At the time of admission ... Aetna again verified Patient's insurance eligibility."13 During this stay, CHOMP informed Aetna of the patient's condition and requested authorization for treatment almost daily.14 While Aetna requested that the patient be transferred to another hospital — that was in-network15 — "Aetna cancelled the transfer request on [two consecutive days] because the Patient was not stable to move."16 Instead, Aetna verbally authorized additional treatment for the patient as an "out of network admit"17 and said that it "would review further authorization for continued treatment again the following day."18 CHOMP alleged that it relied on these authorizations in providing continued treatment.19 "Subsequent to Patient's July [] discharge, [CHOMP] received written authorization from [Aetna] for Patient's treatment which included extensive disclaimer language."20 CHOMP later billed Aetna "$84,711.00 for the [July] services provided to Patient."21 Aetna "paid $20,458.59 and denied $64,162.41 on the principal basis that the `[charges] exceed contract.'"22

As to the third visit in September 2013, CHOMP admitted the patient to its emergency room for diabetic ketoacidosis yet again.23 "At the time of admission ... Aetna again verified Patient's insurance eligibility."24 CHOMP alleged that it relied on this verification in treating the patient during her stay at the hospital.25 The day after the patient was released from the hospital, "Aetna's utilization review department [again] provided express authorization, both oral and written, for the treatment provided to Patient."26 CHOMP later billed Aetna "$40,869.00 for the services provided to Patient."27 Aetna "paid $13,711.16 and denied $27,157.84 on the principal basis that the `[charges] exceed contract.'"28

This suit followed. CHOMP asserts six causes of action against Aetna, each of which is based on all three of the patient's emergency room visits.29 Aetna now moves for summary judgment on the first through fifth causes of action.30 In opposition, CHOMP abandoned its claims based on the February and September visits as to the first, second and fifth causes of action.31 The claims left for present consideration are: (1) negligent misrepresentation based on the patient's July visit; (2) breach of implied contract based on the patient's July visit; (3) violation of California's Unfair Competition Laws32 based on all three visits; (4) common count-open book account based on all three visits and (5) common count-services rendered based on the July visit.33

II.

This court has jurisdiction under 28 U.S.C. § 1332. The parties further consent to the jurisdiction of the undersigned under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72(a).

III.

At this stage of the case, a court "does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial."34 Initially, the moving party bears the burden to show that no genuine issue of material fact exists.35 If this burden is met, the burden shifts to the non-moving party.36 Applying these standards to CHOMP's claims at issue, the court finds that while certain claims survive for trial, the majority do not.

First, no reasonable jury could find that Aetna is liable for negligent misrepresentation based on the July visit. "The elements of negligent misrepresentation are (1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage."37 CHOMP must prove each element for this claim to succeed.38 CHOMP alleges that both "Aetna's verification[] of Patient's eligibility for benefits and [Aetna's] authorization of services" constituted misrepresentations that "Aetna would pay for each of Patient's admission[], care, and treatment."39 But Aetna's eligibility verification cannot constitute a misrepresentation of a past or existing material fact — "[i]t is undisputed that the Patient was an Aetna plan member and Aetna verified this fact."40

The suggestion that Aetna's authorization constitutes a misrepresentation also fails as a matter of law. CHOMP argues that the "authorizations associated with [the patient's July visit] came in advance of treatment and induced the Hospital to act, thereby forming a basis for the Hospital's negligent misrepresentation claim."41 CHOMP reasons that because "authorization of services can amount to an agreement to pay for those services," Aetna's authorization and subsequent failure to pay in full amounted to a misrepresentation.42 This logic is flawed for two reasons. For one, CHOMP conflates the analysis of whether the authorization formed an implied-in-fact contract with whether the authorization constituted a misrepresentation of a past or existing material fact.43 The formation of a contract — or lack thereof — is not an element of negligent misrepresentation.44 And two, even construing the authorization as a promise to pay, that promise is "manifestly about what [Aetna would be required to] do in the future. As California law requires a representation of a `past or existing material fact,' this ... alleged misrepresentation is inadequate."45

Second, no reasonable jury could find that Aetna breached any implied contract. To prevail on a breach of contract claim, CHOMP must show (1) "existence of the contract," (2) "performance by the plaintiff or excuse for nonperformance," (3) "breach by the defendant" and (4) "damages."46 "An implied [in fact] contract is one, the existence and terms of which are manifested by conduct."47 "Whether the parties' conduct creates an implied [in fact contract] is a question of fact determined by looking at the totality of the circumstances."48 Here, there is a genuine dispute whether a contract existed between CHOMP and Aetna. Aetna plainly authorized treatment for the patient during the July visit.49 Other courts have held that an authorization "call can constitute a promise to pay for purposes of contract creation."50 Relying on Aetna's authorization, CHOMP provided services to the patient.51 Aetna's subsequent payment for those services52 is evidence that, by authorizing treatment, Aetna intended to be bound to pay CHOMP for services provided to the patient.

But the dispositive issue here is not whether there was a contract in place, but whether there is any genuine issue that full payment was expected under the contract. CHOMP contends that "Aetna's verifications of Patient's benefits and authorization of services amounted to a mutual agreement that [CHOMP] would provide the health care services to Patient as medically necessary, and, in exchange, Aetna would pay [CHOMP] for all billed charges incurred in such care and treatment."53 CHOMP's expectation of 100 percent payment of billed charges, however, is irreconcilable with the underlying evidence presented to the court. During Aetna's first authorization call, it explicitly notified CHOMP that the patient was "an out of network admit."54 Indeed Aetna's subsequent authorization letter for the July visit "informed CHOMP that they would be paid at an out-of-network or non-preferred benefit level for non-emergent services and that Aetna had not yet verified dollar limits under the plan."55 Given these facts, the regularity with which CHOMP interacts with Aetna and other insurance providers and the standard practice in the industry, it would have been unreasonable for CHOMP to expect that Aetna's authorization constituted a promise to pay 100 percent of billed charges. No reasonable jury could find otherwise.56

Third, no reasonable jury could find that Aetna is liable for unfair competition, with one limited exception.57

The UCL prohibits "any unlawful, unfair or fraudulent business act or practice."58 "[I]t establishes three varieties of unfair competition-acts or practices which are unlawful, or unfair, or fraudulent. In other words, a practice is prohibited as unfair or deceptive even if not unlawful and vice versa."59

CHOMP alleges that "Aetna's rescission of the verifications of benefits and authorizations of treatment subsequent to [CHOMP's] provision of health care service to Patient" violated Cal. Health & Safety Code § 1371.8 and Cal. Ins.Code § 796.04 and that this conduct "constitute[d] an unfair business practice in violation of" Cal. Bus. & Prof.Code § 17200.60 This claim falls under the "unlawful" prong of the UCL. Sections 1371.8 and 796.04 state that once a health insurer has authorized treatment for services, it "shall not rescind or modify [the] authorization after the provider renders the health care service in good faith and pursuant to the authorization for any reason." There is no evidence that Aetna rescinded or modified its authorization in any way. As to the February and September visits, Aetna issued written authorizations after the patient was released-explicitly stating that coverage was subject to certain exclusions based on the patient's benefit plan.61 As to the July visit, Aetna verbally notified CHOMP that the patient was "an out of network admit,"62 later confirming the same in a written authorization letter that was largely identical to the February and September letters.63 It is undisputed that Aetna paid CHOMP for its services.64 That CHOMP disputes the amount due — without providing evidence that Aetna withdrew authorization65 — does not support a claim of rescission.66

CHOMP's UCL claim alleging violation of Section 1371 is on different footing. Section 1371.4 provides: "[a] health care service plan ... shall reimburse providers for emergency services and care provided to its enrollees."67 In Bell, the court found that "the statute must be read to require reasonable reimbursement."68 The heart of this lawsuit lies in a determination of the reasonable value of CHOMP's services — a question that will be presented to the jury in the form of CHOMP's quantum meruit claim, which Aetna does not challenge here. Because the Section 1371.4 claim is dependent on a jury determination of what a reasonable reimbursement is, this narrow prong of CHOMP's UCL claim survives.69

Fourth, CHOMP's claim for common count-services rendered based on the July visit cannot survive summary judgment because no reasonable jury could conclude that Aetna requested CHOMP's services. "A common count is not a specific cause of action ... rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness."70 To succeed on a claim of common count for services rendered, CHOMP must show that the services "were performed at the request of defendant."71 CHOMP alleges that "Aetna became indebted to [CHOMP] for services rendered to Patient at Aetna's request for which Aetna is obligated to pay."72 This allegation is conclusory at best. According to CHOMP's own statement of facts, "Aetna's utilization review department provided express authorization, both oral and written, for the treatment provided" during the patient's July visit.73 Authorizing, by definition, means "[t]o give legal authority" or "[t]o formally approve."74 In the health insurance context, it is the patient who first requests service in the form of treatment. Then, the provider — in this case CHOMP — must seek authorization to provide such treatment from the insurer — in this case Aetna. No reasonable jury could conclude that CHOMP "performed services at [Aetna's] request,"75 when in fact CHOMP initiated contact with Aetna as to authorization. CHOMP's common count-services rendered claim fails as a matter of law.

Fifth, CHOMP's claim for common count-open book account presents a question of disputed fact for the jury.76 CHOMP bases this common count claim on an allegation of open book account with Aetna.77 A book account is "a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation."78 It "may furnish the basis for an action on a common count ... when [the account] contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant."79 The book also must "show against whom the charges are made ... [and] in whose favor the charges run."80 Whether the book account exists, whether its charges are accurate and whether it is open81 or closed are questions of fact.82 The court has already concluded above that an implied contract exists for the July visit. Similarly, the written authorizations Aetna delivered to CHOMP for the February and September visits demonstrate Aetna's intention to bind itself to pay CHOMP according to the patient's benefit plan.83 CHOMP's itemized bills84 "supply evidence from which it can be reasonably determined what amount" CHOMP claims it is owed.85 Aetna counters that CHOMP cannot unilaterally submit an invoice for 100 percent of billed charges and then claim an open book on that amount.86 But Aetna cites no authority to support the proposition that the parties must agree on the amount of the book account. And CHOMP has at least "furnish[ed] the basis for an action on a common count."87 Because the amount due under the book account is a question of fact, it must go to the jury.88

IV.

The motion for summary judgment is GRANTED-IN-PART.

SO ORDERED.