NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

Defendant Blue Shield of California (Blue Shield, doing business as California Physicians' Service) denied the claims of plaintiff IV Solutions, Inc. for payment for home infusion services rendered to a Blue Shield PPO Plan member, Ellen W. The plan provided that home infusion services rendered by a nonpreferred provider "are not covered, unless prior authorized by Blue Shield." Blue Shield denied the claims on the grounds that the services were rendered by a nonpreferred provider without prior authorization and were not medically necessary.

After obtaining an assignment of Ellen W.'s rights and claims, IV Solutions sued Blue Shield, alleging derivative claims for breach of contract and breach of the duty of good faith and fair dealing, and a direct claim for breach of oral contract.1 The trial court granted Blue Shield's summary judgment motion and entered judgment for Blue Shield. In this appeal from the judgment, IV Solutions contends that: (1) as to the derivative claims, there are triable issues of material fact regarding medical necessity and preauthorization; (2) as to the direct claim, the lack of an agreement on price is not fatal to the formation of an oral contract; and (3) certain evidence was erroneously excluded. We reject these contentions and affirm the judgment.2

BACKGROUND

In January 2004, Ellen W. enrolled in a Blue Shield PPO Plan for City of Pasadena employees (Plan). In April 2004, she began receiving home infusion services from IV Solutions, a nonpreferred or nonparticipating provider.3

The Plan's Evidence of Coverage and Disclosure Form (Evidence of Coverage or EOC) states that home infusion services are covered "when medically necessary and prescribed by a Doctor of Medicine. All Services must be prior authorized by Blue Shield."4 The EOC further states that "Services rendered by Non-Participating Home Health Care and Home Infusion Agencies are not covered, unless prior authorized by Blue Shield."

Without obtaining prior authorization for its services, IV Solutions submitted claims to Blue Shield for home infusion services provided to Ellen W. on the following dates (claims): April 20 and 21, May 25, June 4, 28, 29, and 30, August 25 and 26, and November 2 and 4, 2004. According to Blue Shield's Explanation of Benefits forms (EOB's) dated June 11, August 3 and 20, October 8, November 30, and December 23, 2004, the claims were denied for lack of prior authorization from Blue Shield.

After further investigation, Blue Shield also denied the claims for lack of medical necessity. After examining Ellen W.'s medical history, physical examination records, and indications for treatment, Blue Shield issued a September 20, 2004 denial on the ground that the home infusion services were not medically necessary.

In response to IV Solutions' request for "retro-authorization" of its prior services, Blue Shield submitted the claims to a medical advisor. The medical advisor reviewed the records and also found that the home infusion services were not medically necessary. The medical advisor concluded that Ellen W. had multiple medical problems, but none that met the criteria for home infusion services. Accordingly, Blue Shield issued a May 3, 2005 denial on that basis.

On July 21, 2005, Blue Shield denied the claims for lack of medical necessity and lack of prior authorization.

IV Solutions appealed the denial of its claims. Dr. Brooker, a Blue Shield medical director, examined IV Solutions' supplemental documents on appeal and found that Ellen W. "suffered from multiple conditions that were specifically excluded from Blue Shield's Commercial Injectable Guidelines, such as chronic fatigue syndrome." Dr. Brooker reviewed the laboratory studies submitted by IV Solutions in support of its position that the home infusion services were medically necessary. Dr. Brooker concluded that the studies "did not document standard measurement of immunoglobulin or subclasses. Rather, Dr. Brooker concluded, there were a variety of studies showing increased IGG levels specific to certain fungi, which might indicate an allergy. Dr. Brooker further concluded that there was no indication that Ellen W. had an immunoglobulin deficiency. Accordingly, Dr. Brooker concluded that IVIG [intravenous immunoglobulin] was not medically necessary for Ellen W."

In December 2005, Blue Shield issued a denial of IV Solutions' appeal.

On February 13, 2008, IV Solutions obtained an assignment of Ellen W.'s rights, claims, and causes of action against Blue Shield. On February 27, 2008, IV Solutions filed a prior action against Blue Shield, alleging derivative claims for breach of contract and breach of the duty of good faith and fair dealing, and a direct claim for breach of oral contract.5 (IV Solutions, Inc. v. Blue Shield of California (Super. Ct. L.A. County, No. BC386334).) On March 3, 2009, IV Solutions voluntarily dismissed the prior action without prejudice.

On May 1, 2009, IV Solutions filed the present action against Blue Shield for breach of contract, breach of duty of good faith and fair dealing, and breach of oral contract. (IV Solutions, Inc. v. Blue Shield of California (Super. Ct. L.A. County, BC412913).)

On January 6, 2010, Blue Shield moved for summary judgment of the second amended complaint, the operative pleading. The trial court granted the motion "as to all causes of action for all the reasons set forth in Blue Shield's opening and reply briefs." In the order granting the motion, the trial court adopted the following grounds cited by Blue Shield in support of the motion:

After granting the summary judgment motion, the trial court entered judgment for Blue Shield. This timely appeal followed.

DISCUSSION

I. Standard of Review

The standard of review for summary judgment is well established. The motion "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A moving defendant has met his burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196.)

We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North, supra, 135 Cal.App.4th at p. 1196.) In performing our independent review of the evidence, "we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue." (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)

In determining whether there are triable issues of material fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We accept as true the facts supported by plaintiff's evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148), resolving evidentiary doubts or ambiguities in plaintiff's favor (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768).

II. Medical Necessity and Preauthorization

IV Solutions contends that Blue Shield's Commercial Injectable Guidelines (Guidelines) provided coverage for the use of IVIG in the treatment of primary immunodeficiency disorders and therefore preauthorization was not required in this case. We conclude the record fails to support this contention.

A. The Evidence Below

Blue Shield's medical director, Dr. Brooker, stated in his declaration as follows. In his opinion, Ellen W.'s medical records failed to show that home infusion services were medically necessary. Although the Guidelines do not exclude home infusion services for primary immunodeficiency disorders, there was no indication that Ellen W. was diagnosed with a primary immunodeficiency disorder or that she had an immunoglobulin deficiency. Dr. Ordog's medical records for Ellen W. were "cryptic and in some cases contradictory," and contained "a series of mostly unintelligible bullet points that didn't amount to a diagnosis of any type." Although Dr. Ordog's records mentioned chronic fatigue syndrome, that is a condition for which home infusion services are excluded under the Guidelines. Given that "the laboratory studies submitted by IV Solutions did not document standard measurement of immunoglobulin or subclasses," there was "no indication that Ellen W. had an immunoglobulin deficiency. Accordingly, Dr. Brooker concluded that IVIG was not medically necessary for Ellen W."

In opposition, IV Solutions agreed that the laboratory studies "did not document standard measurement of immunoglobulin or subclasses." However, IV Solutions disagreed that "IVIG was not medically necessary for Ellen W."

In support of its theory that the home infusion services were medically necessary, IV Solutions argued as follows: (1) according to the Guidelines, IVIG is a covered treatment for primary immunodeficiency disorders; (2) Dr. Ordog diagnosed Ellen W. with "Chemical Induced Immune Deficiency Syndrome," which is a primary immunodeficiency disorder; and (3) as a result of the alleged diagnosis, the Guidelines provided coverage for the use of IVIG without prior authorization.

Other than the Guidelines and the medical records, IV Solutions submitted no declarations or deposition testimony to rebut Dr. Brooker's opinion that Dr. Ordog's medical records for Ellen W. were "cryptic and in some cases contradictory," and contained "a series of mostly unintelligible bullet points that didn't amount to a diagnosis of any type." Although IV Solutions attempted to rely on the declaration of its attorney, Gary L. Tysch, to explain that the Guidelines provided coverage for the use of IVIG without prior authorization, the trial court sustained Blue Shield's evidentiary objection that because Tysch lacks foundation to interpret the Guidelines, his interpretation is irrelevant and constitutes impermissible argument. Accordingly, IV Solutions was left to rely on the Guidelines to support its argument that, "by denying coverage for IVIG in the treatment of Ellen W., BLUE SHIELD violated its own internal policies and guidelines which provided coverage for IVIG in the treatment of Ellen W.'s condition."

In reply, Blue Shield argued that because the Plan constituted its entire agreement with Ellen W., the Guidelines could not be used to eliminate the express contractual obligations for preauthorization and medical necessity. Blue Shield further argued that "IV Solutions offers no admissible evidence that Ellen W. was diagnosed with a condition requiring in-home IVIG treatment. None of the medical records produced in this action have been authenticated by Dr. Ordog, nor do they reflect any discernible diagnosis. [Fn. omitted.]"

B. The Parties' Contentions on Appeal

In its opening brief, IV Solutions contends that because IVIG was medically necessary, the Guidelines provided coverage without requiring preauthorization from Blue Shield. It argues that summary judgment of the derivative claims for breach of contract and breach of the duty of good faith and fair dealing must be reversed because: (1) the Guidelines authorized the use of IVIG for the treatment of primary immunodeficiency disorders; (2) Dr. Ordog diagnosed Ellen W. with "Chemical Induced Immune Deficiency Syndrome," which is a primary immunodeficiency disorder for which he prescribed IVIG; (3) Dr. Ordog provided Ellen W. with IVIG at his office for a number of years, which was paid for by her prior insurer, Blue Cross; (4) Blue Shield mistakenly paid another provider, ITS, for IVIG provided to Ellen W. on April 20 and May 25, 2004; and (5) Blue Shield informed IV Solutions on multiple occasions that no prior authorization was required for the administration of IVIG to Ellen W.

In its respondent's brief, Blue Shield asserts that: (1) the Guidelines are an internal document that cannot alter or trump the parties' agreement as set forth in the Plan's EOC, which requires preauthorization for coverage of home infusion services; (2) in any event, the record is devoid of any evidence that Dr. Ordog diagnosed Ellen W. with a primary immunodeficiency disorder;7 (3) the payments by Ellen W.'s prior insurer are irrelevant; (4) Blue Shield's mistaken payment to other providers does not alter the contract terms and does not preclude Blue Shield from denying the claims;8 and (5) there is no evidence that prior to providing the home infusion services to Ellen W., IV Solutions was informed by Blue Shield that preauthorization was not required, and, therefore, IV Solutions could not have been induced to provide the services without preauthorization in reliance on the purported statements.

C. Analysis

We conclude that IV Solutions has failed to establish the existence of triable issues of material fact as to medical necessity and preauthorization.

According to the Plan's EOC, home infusion services rendered by a nonpreferred provider "are not covered, unless prior-authorized by Blue Shield." The evidence is undisputed that no prior authorization was given by Blue Shield. IV Solutions seeks to circumvent this requirement by relying on the Guidelines. However, there is no evidence in the record to suggest that the Guidelines may be construed to create coverage for home infusion services that the Plan does not cover in the absence of prior authorization. Such an interpretation is unreasonable given that the Guidelines do not refer to the EOC, and the EOC does not refer to the Guidelines. It does not appear that the Guidelines are part of the insurance contract between Blue Shield and Ellen W.

In addition, IV Solutions failed to rebut Dr. Brooker's declaration that Dr. Ordog's medical records contained no recognizable diagnosis of a primary immunodeficiency disorder. IV Solutions also failed to rebut Dr. Brooker's declaration that because "the laboratory studies submitted by IV Solutions did not document standard measurement of immunoglobulin or subclasses," there was "no indication that Ellen W. had an immunoglobulin deficiency. Accordingly, Dr. Brooker concluded that IVIG was not medically necessary for Ellen W." In the absence of a primary immunodeficiency disorder diagnosis, IV Solutions' reliance on the Guidelines is misplaced.

Given that the record is devoid of any admissible evidence of a primary immunodeficiency disorder diagnosis, IV Solutions' argument that coverage existed under the Guidelines necessarily must fail. The undisputed evidence supports Blue Shield's position that it reasonably rejected the claims on the ground that home infusion therapy was not medically necessary and therefore was not covered by the Plan. IV Solutions has therefore failed to identify a triable issue of material fact. "An issue of fact can only be created by a conflict of evidence. It is not created by `speculation, conjecture, imagination or guess work.' [Citation.] Further, an issue of fact is not raised by `cryptic, broadly phrased, and conclusory assertions' [citation], or mere possibilities [citation]." (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197.)

III. The Oral Contract Claim

IV Solutions contends that the summary adjudication of the breach of oral contract claim must be reversed because an agreement on price is not necessary to the formation of an oral contract. The contention lacks merit.

The trial court granted summary judgment on the breach of oral contract claim for the various reasons set forth in the margin.9 Even if we were to assume for the sake of argument that an agreement on price is not necessary to the formation of a contract, the opening brief contains no analysis or argument regarding the other grounds on which the motion was granted. For example, although the trial court found no evidence of a promise to pay insurance benefits, the opening brief fails to explain why such a promise was unnecessary. As we have no obligation to develop or discuss an argument not raised in the opening brief (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1; Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007), the issue requires no further discussion.10

IV. Evidentiary Rulings

IV Solutions challenges the trial court's exclusion of certain evidence. Preliminarily, we note the parties disagree on the proper standard of review. IV Solutions argues that the de novo standard of review applies to evidentiary rulings on summary judgment motions, but Blue Shield argues that the abuse of discretion standard applies. The more common view is that the abuse of discretion standard applies. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 ["the weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard"]; Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1456.) We conclude that under either standard, the evidence was properly excluded.

A. Paragraph 9 and Exhibit C to the Tysch Declaration

Caremark Therapeutic Services, a participating provider, submitted a claim to Blue Shield for providing IVIG to Ellen W. in a medical office. Exhibit C is the EOB that purportedly documents the payment of Caremark's claim.

The trial court sustained Blue Shield's objection to exhibit C, which Tysch referred to in paragraph 9 of his declaration as follows: "Attached hereto as Exhibit `C' and incorporated herein as if set forth in full is a true and correct copy of an Explanation of Benefits statement showing that Caremark Therapeutic Services was paid for a provision of IVIG to Ellen W. on April 20, 2004."

The court sustained Blue Shield's objection that Tysch, as the attorney for IV Solutions, was not qualified to authenticate or explain a document that ostensibly was prepared by Blue Shield. In addition to excluding exhibit C for lack of foundation, the trial court excluded the document as irrelevant.

On appeal, IV Solutions contends that exhibit C was "produced in this case, and, given its relevance, the trial court should have conditionally admitted it pursuant to Evidence Code section 403(b)." Blue Shield, on the other hand, argues that the document was properly excluded for lack of foundation because the record contains no "indication of where the document came from or that it is authentic." Blue Shield also argues that the purported payment to Caremark was irrelevant because Caremark is a participating provider that supplied IVIG in a medical office setting, and its "relatively modest" claim "of $2,884.80 for 28 units" is distinguishable from IV Solutions' claim for "nearly one million dollars" for home infusion services. Blue Shield contends that the Plan's rules for home infusion treatments rendered by a nonparticipating provider do not apply to Caremark.

We find no abuse of discretion. The Plan's EOC differentiated between IVIG supplied by a preferred provider in a medical office and by a nonpreferred provider in a patient's home. With regard to the latter situation, the EOC stated that a nonpreferred provider's home infusion services "are not covered, unless prior authorized by Blue Shield." Here, it is undisputed that no prior authorization was obtained for the home infusion services rendered by IV Solutions, a nonpreferred provider. Given Caremark's entirely different circumstance as a preferred provider of IVIG in a medical setting, IV Solutions has failed to establish the relevance of exhibit C to this case.

B. Paragraph 8, Lines 22-28 of the Vara Declaration

Alex Vara, the owner of IV Solutions, attested that his company was repeatedly advised by Blue Shield that prior authorization was not required in this case. Vara sought to introduce exhibit B, an internal IV Solutions document that purportedly contained the notes of a telephone conversation in which an employee was told by Blue Shield that prior authorization was not required. The employee, however, did not authenticate exhibit B. Instead, IV Solutions sought to authenticate exhibit B through Vara's declaration, even though he was not privy to the conversation.

In paragraph 8, lines 22-28 of Vara's declaration, he stated: "[Exhibit B] indicates that IV Solutions was told on two occasions (or by two separate employees of Blue Shield[)] that no prior authorization was required for home infusion of IVIG under Ellen W.'s policy with Blue Shield. The box for `No' next to prior authorization has two check marks next to it, signifying that IV Solutions was told two times that no prior authorization was required or necessary for this patient. The form also verifies that Blue Shield was expressly advised that IV Solutions was an out of network (not a preferred) provider during these conversations."

Blue Shield objected to Vara's statement on the following grounds: "Secondary Evidence Rule (Cal. Evid. Code §§ 1521, 1523); impermissible argument (Hayman v. Block, 176 Cal.App.3d 629, 638-639 (1986); Marriage of Heggie, 99 Cal.App.4th 28, 30, n. 3 (2002), Cal. Civ. Proc. Code § 437c(d)); irrelevant (Cal. Evid. Code §§ 210, 350) because the contract governs; lack of foundation and personal knowledge (Cal. Evid. Code §§ 702, 800)."

The trial court sustained the objection on all grounds. In particular, it found that Vara lacked personal knowledge of the employee's conversation with Blue Shield.

IV Solutions argues on appeal that exhibit B was erroneously excluded. It contends that exhibit B reflects "that on February 24, 2004, Shilpa of IV Solutions, Inc. contacted and spoke to Blue Shield representatives to obtain information and verification that Ellen W. was a subscriber of Blue Shield and that she had benefits as a member of Blue Shield."

The problem, however, is that Shilpa did not authenticate exhibit B, and there is no evidence to suggest that Vara had the personal knowledge necessary to do so. Vara did not attest to any personal knowledge of Shilpa's conversation with Blue Shield. Without such personal knowledge, Vara is not competent to attest to Shilpa's purported conversation with Blue Shield. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 692, fn. 1 [where a witness is not testifying from his own perception of the events he describes, his personal knowledge must be shown before the witness may testify concerning the matter].) We therefore conclude that the objection was properly sustained for lack of personal knowledge and lack of foundation.

C. Paragraph 10 of the Vara Declaration

In paragraph 10 of his declaration, Vara stated: "Based upon these representations, IV Solutions was induced to and did render home infusions of IVIG to Ellen W. as an out of network provider beginning on April 20, 2004 and continuing through November, 2004." The trial court sustained Blue Shield's objection to this paragraph on the grounds of "[i]mpermissible argument and conclusion."

IV Solutions argues on appeal that the objection was improper because "Mr. Vara plainly has sufficient personal knowledge to testify as to why Appellant rendered home infusions to Ellen W. and as to the time frames, and his testimony is relevant to the issues why IV Solutions rendered services and to IV Solutions' reasonable belief that written pre-authorization was either not required or was waived by Respondent, a belief that might be shared by a trier of fact. Again, this testimony is not a legal argument or conclusion, and the objection should have been overruled." We are not persuaded.

As Blue Shield points out in its respondent's brief, waiver of the preauthorization requirement was not established by the evidence: "Moreover, IV Solutions never explained to Blue Shield that these alleged communications justified its failure to obtain written pre-authorization, even when Blue Shield repeatedly denied its claims on that precise basis. Instead, IV Solutions acknowledged that the services were not pre-authorized and requested that Blue Shield grant it `retro-authorization.' [Record reference omitted.] In that written request, IV Solutions provided an entirely different explanation for its failure to obtain pre-authorization: `The member was diagnosed with an illness that required professional treatment and medication. In compliance to an immediate request, IV Solutions provided and rendered services in good faith, which plays a crucial role on the patients [sic] health and healing process.' [Record reference omitted.] Thus, at the time, IV Solutions asserted it performed the services on some sort of emergency or urgent basis — a claim it has since abandoned. [¶] IV Solutions suggests in passing that Blue Shield waived its right to assert its pre-authorization requirement. But waiver cannot be established absent clear and convincing evidence that the party intended to waive its rights, and IV Solutions bears the burden on this issue. [Citations.] [¶] . . . IV Solutions offered no clear and convincing evidence that Blue Shield intended to dispense with the pre-authorization condition, and no evidence that Ellen W. supplied additional consideration in exchange for the waiver of that material term."

For all of the reasons set forth above, we conclude that the objection was properly sustained. Additionally, to the extent that Vara had personal conversations with Blue Shield regarding the need for preauthorization, the relevance of those conversations is unclear in light of his failure to state the exact date or dates on which they occurred. To the extent Vara is relying on the date noted on exhibit C to the Tysch declaration, the reliance is misplaced because the notations on that document were excluded below.

DISPOSITION

The judgment is affirmed. Blue Shield is awarded its costs on appeal.

EPSTEIN, P. J. WILLHITE, J., concurs.