Opinion
A148430
05-09-2018
BAY AREA CONSORTIUM FOR QUALITY HEALTH CARE Plaintiff and Appellant, v. ALAMEDA COUNTY et al., Defendants and Respondents
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15763430)
Plaintiff Bay Area Consortium for Quality Health Care (BAC) appeals from a judgment entered in favor of defendant Alameda County (County) following the court's grant of judgment on the pleadings on BAC's action for money and damages in connection with health care services BAC alleged it provided to low-income and uninsured patients in the Bay Area pursuant to contracts with defendant County. The court granted judgment on the pleadings on the ground that BAC's action was barred by its failure to present a timely government claim under the Government Claims Act. (Gov. Code, § 810 et seq.) BAC contends it was exempt from the claims requirement under section 905, subdivision (e) and that the court erred in granting the motion without leave to amend. We agree with BAC that it alleged facts that bring its action within the exemption.
All statutory references are to the Government Code, unless otherwise indicated.
County also moved for judgment on the pleadings as to all causes of action on additional grounds, but the court did not address those grounds and County has not reiterated those grounds in this appeal. On appeal, BAC has not submitted to this court any proposed amendments to the complaint. Nevertheless, as BAC has not had an opportunity to amend its complaint, we shall allow amendment as to those causes of action that are capable of amendment. BAC's claims alleging violation of the Knox-Keene Act (Health & Saf. Code, § 1371 et seq.) fail as a matter of law because there is no private right of action under that Act.
BAC also contends the trial court abused its discretion when it refused to consider BAC's late-filed opposition to the motion for judgment on the pleadings and when it denied BAC's request to set aside the order granting judgment on the pleadings under Code of Civil Procedure section 473, subdivision (b) for counsel's excusable neglect in failing to timely file opposition to the motion, but instead considered that request to be a motion for reconsideration, which it denied. It does not appear the court abused its discretion either in refusing to consider the late-filed opposition or in viewing the motion to set aside for excusable neglect as a motion to reconsider. In any event, neither of these court rulings is dispositive in the circumstances presented.
BACKGROUND
BAC filed its initial complaint for breach of contract and common counts on March 23, 2015. In its first amended complaint for damages against County and defendant Alameda Alliance for Health Care, Inc. (Alliance), BAC alleged it is a California not-for-profit corporation that provided health care services to indigent people in Alameda County under various contracts with County, Alliance and other state and federal agencies. From 2012 through 2014 BAC provided services to patients who were members of Alliance, a not-for-profit organization licensed as a pre-paid health care service plan authorized to do business in California and now in receivership. Alliance did not pay BAC the agreed-upon contract rate for services. BAC also provided health care services for indigent people in Alameda County. BAC alleged it provided health care services to indigent patients under the federal government Medicaid-based targeted case management system (TCM) of County and the County has failed to pay plaintiff for these services. Plaintiff alleged the value of these services is $1,024,408 as stated in an audit report performed by the State of California. BAC wrote County in October 2011, requesting payment of the $1,024,408 and other sums owed BAC by County. County refused and stated it was appealing the audit. On October 29, 2014, BAC made a claim against County, which County denied on December 9, 2014. That claim sought $2,500,000 for under-reimbursement of BAC for services rendered from January 1999 through January 2009, which was alleged to have been discovered in 2011.
Alliance is not a party to this appeal, which is only as to County.
BAC filed its action for breach of contract against County and Alliance on March 23, 2015, and filed its first amended complaint for damages on July 30, 2015. The first amended complaint alleged nine causes of action against defendants, counts one through six against County and Alliance and counts seven through nine against Alliance only.
The first cause of action for breach of contract incorporated the above allegations and further alleged BAC entered into contracts with defendants to provide health care services to indigent residents of Alameda County and to Alliance members. It alleged that BAC had fully performed, but that from 2012 to the present, defendants breached the agreement by refusing or failing to pay BAC after BAC provided medical services to Alliance members and the indigents of County; by making partial payments to BAC on claims submitted; by failing to pay at the proper rate as prescribed by the contract and by law; and by wrongful denial of credentialing for BAC's health care providers. Contracts between County and BAC were attached to the complaint. They appear to cover fiscal years 2007-2008, and 2014-2015 and March 1, 2014 to February 28, 2015 (for HIV/AIDS services to indigent HIV positive county residents).
The wrongful denial of credentialing appears to involve Alliance only.
The second cause of action for breach of the implied covenant of good faith and fair dealing re-alleged the above and alleged the refusal to pay BAC breached the implied covenant and caused damages to BAC.
The third cause of action alleged common counts against defendants, stating that within the last four years defendants became indebted to BAC for money had and received by them from the state and federal governments for the use and benefit of BAC for work, labor, services and materials it rendered at defendants' request and for which defendants promised to pay in a sum according to proof.
The fourth through sixth causes of action alleged various violations of the Knox-Keene Act.
The causes of action in the first amended complaint were based on alleged wrongful conduct "from 2012 to the present time." The claim BAC alleged it had presented to the County on October 29, 2014, charged "unlawful acts from January 1999 to January 2009." Consequently, these are not the acts giving rise to the causes of action in the FAC.
County moved for judgment on the pleadings on January 7, 2016. In addition to challenging the causes of action on other grounds, County argued BAC's claims were barred because it had failed to comply with the Government Claims Act. BAC's opposition was due on January 20, 2015. On January 25, 2016, County filed a reply to BAC's non-opposition, requesting that the court grant its motion for judgment on the pleadings without leave to amend. On January 27, BAC filed an opposition to County's motion and on January 29, County filed its reply. On February 1, the trial court issued its tentative ruling granting the County's motion on the ground BAC had failed to comply with the Government Claims Act. BAC had not explained how it could overcome County's legal arguments. BAC did not request a hearing nor did it offer an explanation how it could amend to cure the deficiencies of its complaint. On February 2, the court granted County's motion for judgment on the pleadings without leave to amend. The court ruled BAC had not complied with the one-year claims presentation requirement of section 915, as required by section 911.2. It granted County's request for judicial notice of the government claim filed by BAC and recognized the causes of action alleged in the first amended complaint were for a later time period than the government claim BAC had submitted in October 2014. The court stated it was not considering BAC's late opposition, citing California Rules of Court, rule 3.1300(d). On the same date, the court also sustained with leave to amend, the demurrer brought by Alliance to the second through ninth causes of action of the BAC complaint on grounds unrelated to the failure to comply with the Government Claims Act.
Section 911.2 provides: "(a) A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action." --------
Judgment was entered in favor of County on February 2, 2016.
BAC moved to set aside the court's order granting defendant's motion for judgment on the pleadings, arguing the reason the motion was granted was BAC's untimely opposition, which was untimely because BAC's counsel was out of the country. County filed its opposition arguing the basis for the judgment was not the failure to file timely opposition, but failure to comply with the Government Code and that in any event, BAC had failed to establish excusable neglect. In its reply to the County's opposition, filed April 15, 2016, BAC argued for the first time that it was exempt from compliance with the Government Claims Act under section 905, subdivision (e). The court issued its tentative ruling, concluding that BAC had mischaracterized its motion as one to "set aside" the order granting County judgment on the pleadings, whereas it should have been filed as a motion for reconsideration and the court treated it as such and denied the motion. The court stated that at the time it granted the motion for judgment on the pleadings, it was aware BAC's counsel had been out of the country. It had exercised its discretion not to consider the late-filed opposition because it was unreasonable for BAC's counsel to just leave without notifying the court or counsel. The court entered judgment in County's favor and this timely appeal followed.
DISCUSSION
I. Standard of Review
"The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer. The trial court determines whether it appears from the pleadings, together with matters that may be judicially noticed, the moving party is entitled to judgment as a matter of law. We review the trial court's determination de novo. In doing so, we assume the truth of, and liberally construe all properly pleaded factual allegations in the complaint. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321.) In determining whether the pleadings entitle the moving party to judgment as a matter of law, we conduct the appropriate analysis without deferring to the reasoning of the trial court. (Id. at p. 322.)" (Shields v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 782, 785 (Shields).)
"[W]hen a judgment on the pleadings is sustained without leave to amend, an appellant may argue for the first time on appeal the complaint may be amended to state a valid cause of action—based on the general rule that a litigant may raise for the first time on appeal a pure question of law based on undisputed facts. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 259-260.) In other words, the appellant may assert the trial court abused its discretion in granting the motion without leave to amend, and it is not a prerequisite to this assertion the appellant first presented to the trial court a specific request to amend or an indication of its legal basis. [Citation.]" (Shields, supra, 205 Cal.App.4th at p. 786.)
"We review the trial court's denial of leave to amend for abuse of discretion, which the plaintiffs must establish by offering proposed amendments to this court that state a legally sufficient cause of action. [Citation]" (Shields, supra, 205 Cal.App.4th at p. 785.)
II. Government Code Section 905 , Subdivision (e).
"Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, § 911.2; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 (Bodde), but see Gov. Code, § 905 [itemized exceptions . . . ].)" (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 (Shirk).) The Government Claims Act applies to claims for breach of contract seeking damages. (City of Stockton v Superior Court (2007) 42 Cal.4th 730, 737 (Stockton).) The California Supreme Court has observed: "Timely claim presentation is not merely a procedural requirement, but is, as this court long ago concluded, ' " 'a condition precedent to plaintiff's maintaining an action against defendant' " ' (Bodde, . . . at p. 1240, quoting Williams v. Horvath (1976) 16 Cal.3d 834, 842), and thus an element of the plaintiff's cause of action. (Bodde, supra, at p. 1240.) Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action. (Bodde, supra, at p. 1245.)" (Shirk, at p. 209, italics added; accord, Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 65 ["plaintiff suing the state or a local public entity must allege facts demonstrating either compliance with the claim presentation requirement or an excuse for noncompliance as an essential element of the cause of action"].)
" 'It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim.' " (Stockton, supra, 42 Cal.4th at p. 738; accord Big Oak Flat-Groveland Unified School Dist. v. Superior Court (2018) 21 Cal.App.5th 403, 413.)
Although BAC argues the court erred in denying its request for leave to amend the first amended complaint, it does not here proffer any proposed amendments to its causes of action. Rather, it contends that it alleged sufficient facts to demonstrate it was excused from compliance with the Government Claims Act by section 905, subdivision (e).
Section 905, subdivision (e) provides in relevant part: "There shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) all claims for money or damages against local public entities except any of the following: [¶] . . . [¶] (e) Applications or claims for any form of public assistance under the Welfare and Institutions Code or other provisions of law relating to public assistance programs, and claims for goods, services, provisions, or other assistance rendered for or on behalf of any recipient of any form of public assistance."
BAC did not allege in its complaint that it was excused from compliance. Rather, it alleged compliance with the Government Claims Act, relying upon a government claim it had made that was clearly irrelevant to the claims made in the first amended complaint, as the court recognized. Nevertheless, BAC is permitted to raise here that it was exempt under subdivision (e) of the statute. (See Dudley v. Department of Transportation, supra, 90 Cal.App.4th at pp. 259-260; Shields, supra, 205 Cal.App.4th at p. 786.)
" 'A cause of action that is subject to the statutory claim procedure must allege either that the plaintiff complied with the claims presentation requirement, or that a recognized exception or excuse for noncompliance exists. . . . If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer.' (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.)" (Nasrawi v Buck Consultants LLC (2014) 231 Cal.App.4th 328, 338 (Nasrawi), italics added.) Further, the factual allegations of the complaint must correspond to the allegations of any claims filed with the local public entity. (Gong, at pp. 375-376.) Nevertheless, if the facts alleged by BAC clearly bring it within the exception, BAC must be allowed to amend the complaint to allege the exception. Courts generally strictly construe the statutory exceptions of section 905. (Nasrawi, at p. 339.) The parties have cited no case construing the statutory exception of section 905, subdivision (e) and we have found none.
In determining whether the section 905, subdivision (e) exception applies here, we are guided by established rules of statutory construction. (See Dalton v. Easy Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1571 (Dalton).) " ' "We begin with the fundamental rule that a court 'should ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] In determining such intent '[t]he court turns first to the words themselves for the answer.' [Citation.] We are required to give effect to statutes 'according to the usual, ordinary import of the language employed in framing them.' [Citations.] 'If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose[,]' [citation]; 'a construction making some words surplusage is to be avoided.' [Citation.] 'When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.' [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]" ' [Citations].)" (Dalton, at p. 1571.)
On its face, subdivision (e) of the statute would appear to except BAC's claims against County for monies owed to BAC for medical services it provided to indigent county residents. The statute appears by its terms to encompass not only applications and claims for public assistance under the Welfare and Institutions Code or other provisions of law relating to public assistance programs by persons directly seeking such public assistance, but also "claims for goods, services, provisions or other assistance rendered for or on behalf of any recipient of any form of public assistance." BAC alleges it provided "health care services to indigent residents of Alameda County" and also that it provided health care services to indigent patients under the federal government Medicaid-based TCM system and that County has failed to pay plaintiff for these services.
BAC's claim for amounts due for services it provided under the TCM system appear to have preceded the time period covered by the first amended complaint and would therefore not be covered by this action. To the extent it may be argued that BAC has failed to specifically allege that the indigent county residents to whom it provided health care services were recipients of some form of public assistance, such allegation, if not implied from the allegations of indigence, could be added by amendment to the complaint.
County responds that the specific exemption does not apply because "BAC is not seeking public assistance or goods, services, or provisions for a recipient of public assistance. BAC is seeking monetary relief for itself for an alleged breach of contract that BAC had with the County." This reading of the statute ignores the second part of the exception, and renders as surplusage the language that excepts from the claims presentation requirement "claims for goods, services, provisions, or other assistance rendered for or on behalf of any recipient of any form of public assistance." (§ 905, subd. (e), italics added.) BAC is seeking money and damages for health care services it alleges it rendered for or on behalf of indigent county residents.
"The legislative history of section 905 indicates the scope of the enumerated exceptions to filing claims was intended to be extremely limited. The study upon which legislation on the filing of claims against public entities was based provides: 'In most of [the subdivisions to section 905] the basic objectives of early investigation to prevent litigation and discourage false claims which support a uniform procedure for tort and inverse condemnation claims are not applicable; and orderly administration of the substantive policies governing the enumerated types of claims strongly suggests that claims procedure should be closely and directly integrated into such substantive policies. Obvious and compelling reasons appear for . . . providing an uncomplicated routine procedure for processing the tremendous volume of salary, [and] pension, [workmen's compensation and public assistance] claims; . . .' (Recommendation and Study Relating to the Presentation of Claims Against Public Entities (Jan. 1959) 2 Cal. Law Revision Com. Rep. (1959) p. A-117.) [¶] Consequently, commentators have construed the section 905 exceptions as essentially nontortious claims 'for which some other adequate claims procedure has already been devised or for which the procedural protection of the Tort Claims Act is believed to be unnecessary.' [Citation.]" (Dalton, supra, 18 Cal.App.4th at pp. 1573-1574; see Cal. Government Tort Liability Practice (CEB 2018 update) § 5.22.)
Citing Dalton, supra, 18 Cal.App.4th at page 1574 and Adler v. Los Angeles Unified School District (1979) 98 Cal.App.3d 280, 286, County asserts: "[b]reach of contract is not a 'nontortious' claim nor is there any other claims procedure that applies to such an action." In Dalton, the court held an action by former and retired employees of a utility district for breach of fiduciary duties and denial of equal protection did not fall under the exception of section 905, subdivision (f) for " 'applications or claims for money or benefits under any public retirement or pension system.' " Although plaintiffs' first cause of action was for breach of contract, the court held plaintiffs were basically alleging tortious wrongdoing by defendants and did not seek money due under the terms of the existing pension system, but were claiming defendants treated them unfairly in administrating the system and sought to change previous administrative decisions. (Dalton, at pp. 1571, 1574; see Nasrawi, supra, 231 Cal.App.4th at p. 339 [§ 905, subd. (f) exception construed "as applying only 'where an individual seeks money due under the terms of an existing pension system' "].) Here, BAC does seek money alleged to be due under the terms of contracts with County for health care services provided by BAC to county indigents.
County does not explain its statement that the breach of contract alleged here is "not a 'nontortious' claim." (Italics added.) As alleged, it is quintessentially nontortious. Nor do we find Adler v. Los Angeles Unified School District, supra, 98 Cal.App.3d 280 to be helpful to County. There, a teacher who was assaulted by a student three days before his resignation became effective, sued for, among other things, loss of future earnings founded upon various alleged breaches of contract by defendants in not providing him a safe place to teach and in not granting him a grievance hearing on his unsatisfactory rating. (Id. at pp. 284-285.) The issue on appeal was the date of accrual of plaintiff's cause of action and whether the claims filing period was tolled. The appellate court held the period was not tolled and affirmed summary judgment for defendants on that cause of action. (Id. at p. 286.)
We are mindful of the general rule that government claims against public entities are now based on statute, that "statutory causes of action must be pleaded with particularity[, and that e]very fact essential to the existence of statutory liability must be pleaded. [Citation.]" (Susman v. Los Angeles (1969) 269 Cal.App.2d 803, 809.) At the same time, "[t]hese rules do not deprive the plaintiff of the benefit of the general principle that the courts should liberally construe a complaint and generously allow amendments to cure deficiencies. [Citations.]" (Cal. Government Tort Liability Practice, supra, § 8.49, citing e.g. Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 937, 939-940.) "[L]eave to amend is properly granted where resolution of the legal issues does not foreclose the possibility that the plaintiff may supply necessary factual allegations. [Citation.] If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment. [Citations.]" (Stockton, supra, 42 Cal.4th at p. 747.)
Where a demurrer is sustained or judgment on the pleadings granted without leave to amend, we " ' must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect; if so [we] will conclude that the trial court abused its discretion by denying the plaintiff leave to amend. [Citation.] The plaintiff bears the burden of establishing that it could have amended the complaint to cure the defect.' [Citation]." (Nasrawi, supra, 231 Cal.App.4th at p. 337.)
It appears from the facts alleged that it is reasonably probable BAC could amend its complaint to allege with particularity, both the existence of the subdivision (e) exception and facts essential to the existence of statutory liability under the exception.
III. Other Grounds for Judgment on the Pleadings
The trial court did not address the other grounds raised by County in its motion for judgment on the pleadings. Neither party here addresses those grounds. However, it is well established that, with certain exceptions, we review the court's decision, and not its reasons. A judgment or order "correct on any theory will be affirmed, even though the trial court's reasoning may have been erroneous." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 8:214, p. 8-166.) As applied to judgment on the pleadings, this rule applies here, if dismissal was required because the complaint failed to state a cause of action and there was no reasonable probability the complaint was susceptible to amendment. (See id., ¶ 8:215.3, pp. 8-167, 8-168.) A. Breach of Contract
County urged below that BAC's breach of contract cause of action was deficient in that it failed to set forth the contract between the parties with sufficient certainty to show BAC's right to performance by County. "A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)" (Careau & Co. v. Security Pacific Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388 (Careau & Co.).)
Specifically, County argued the complaint did not set forth the contract between the parties with sufficient certainty to show plaintiff's right to performance by the defendant or the specific conduct that plaintiff maintains violated the contract. However, BAC did allege it entered into contracts with County for BAC to provide health care services to indigent county residents; that BAC performed; that County then breached the contracts between 2012 and the date of filing the complaint by refusing to pay BAC, by making partial payments to BAC on claims submitted, by failing to pay at the proper rate as prescribed by the contract and by law; and that BAC was damaged as a result. BAC also attached copies of contracts to the complaint. Although it is less than clear which particular contract or contracts or which provisions of those contracts BAC contends County has breached, we cannot say that BAC has failed to state a cause of action for breach of contract here. As Witkin recognizes: "A party whose cause of action or defense in some way involves a written document may, of course, plead its execution and its terms and effect in the same way as he or she pleads other facts. Often, however, the party will merely allege the execution directly, and set forth a copy of the instrument to speak for itself on its terms and effect. Incorporating an exhibit by proper reference to it in the pleading gives the pleader a convenient means of alleging the facts concerning the terms and effect of a document, which may save considerable time and thought and avoid the possibility of inadvertent omission of some essential averments." (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 427, p. 562.) BAC appears to have stated a claim for breach of contract. B. Breach of the Covenant of Good Faith and Fair Dealing
BAC's second cause of action for breach of the covenant of good faith and fair dealing merely restates its cause of action for breach of contract. Hence, it is defective. "A ' "breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself" and it has been held that "[b]ad faith implies unfair dealing rather than mistaken judgment . . . . [Citation.]" [Citation.]' [Citation.]" (Careau & Co., supra, 222 Cal.App.3d at p. 1394; see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352 [a claim that merely realleges the breach of contract as a violation of the covenant is superfluous].)
Although BAC argued below that the court was denying it the opportunity to amend the complaint to fix any defects in its causes of action, it has not on appeal submitted any proposed amendments to cure this or any other defect in its pleadings.
" 'The burden is on the plaintiffs to demonstrate that the trial court abused its discretion and to show in what manner the pleadings can be amended and how such amendments will change the legal effect of their pleadings. [Citations.]' [Citation.] . . . (Code Civ. Proc., § 472c; Careau & Co., supra, 222 Cal.App.3d. at p. 1388.)" (McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1023-1024.) Although this showing may be made for the first time on appeal, BAC has failed to present any such amendment. Nevertheless, it is also the case that "[u]nless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not." (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304; see also Stockton, supra, 42 Cal.4th at p. 747 [where plaintiff has not had opportunity to amend complaint in response to demurrer, "leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment"].) In this instance, the parties have focused their energies on this appeal on the Government Claims Act issue and the court's refusal to grant leave to file belated opposition and to reconsider its decision. No discussion of other alleged defects in the causes of action has been addressed by either party. Recently, the Court of Appeal in Apple Inc. v. Superior Court (2017) 18 Cal.App.5th 222 (Apple), ordered the trial court to grant leave to amend in somewhat analogous circumstances. The court observed that "plaintiffs have not proposed how they would amend the operative complaint if the pleading is deemed inadequate . . . . It is generally the plaintiff's burden to ' "show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading." ' [Citation.]" (Id. at p. 258.) Nevertheless, the court allowed the plaintiffs the opportunity to amend their complaint in response to a demurrer. (Id. at pp. 258-259.) " 'If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment.' ([Stockton], supra, 42 Cal.4th at p. 747.) Because the operative complaint 'does not on its face foreclose any reasonable possibility of amendment,' we will direct the superior court to grant plaintiffs leave to amend, should they seek to do so. (Ibid.)" (Apple, at pp. 258-259.)
Therefore, we conclude the trial court abused its discretion in granting the motion for judgment on the pleadings as to the second cause of action without leave to amend. C. Common Counts
"A common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract." (4 Witkin, supra, Pleadings, § 554, p. 682; see e.g. Kawasho Internat., U.S.A. Inc. v. Lakewood Pipe Service, Inc. (1983) 152 Cal.App.3d 785, 793.) Here, BAC pled that "within the last four years defendants became indebted to BAC for money had and received by them" for BAC's benefit. "The essential elements of an action for money and/or goods had and received are (1) a statement of indebtedness of a certain sum, (2) the consideration made by the plaintiff, and (3) nonpayment of the debt. [Citation.]" (First Interstate Bank v. State of California (1987) 197 Cal. App. 3d 627, 635, italics added; 4 Witkin, supra, § 561, p. 688 ["The count for money had and received states in substance that the defendant is indebted to the plaintiff in a certain sum 'for money had and received by the defendant for the use of the plaintiff' "].) Here, BAC does not allege the sum certain in the third cause of action. In other parts of the first amended complaint, BAC alleges County owes it $1,024,048.40 under the federal TCM contract that expired in 2008. However, the first amended complaint alleges the indebtedness was incurred within four years of the filing of the complaint. Nothing links the TCM contract to this claim. Nevertheless, BAC was not allowed the opportunity to amend its complaint to show such link or to state a sum certain. We cannot say there is no reasonable probability that BAC can amend its cause of action to state such claim. We therefore conclude BAC must be provided an opportunity. (See Stockton, supra, 42 Cal.4th at p. 747; Apple, supra, 18 Cal.App.5th at pp. 257-258.) D. Knox—Keene Act (Health & Saf . Code , § 1340 et seq.)
In its fourth, fifth and sixth causes of action, BAC alleges County violated several provisions of the Knox-Keene Act. County argued that BAC could not maintain a stand-alone private right of action under Knox-Keene and that any private right of action under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) could not be maintained against the County as a public entity. We agree.
We are persuaded by the reasoning of the federal district courts in California Pacific Regional Medical Center v. Global Excel Management, Inc. (N.D.Cal. 2013) No. 13-CV-00540, 2013 WL 2436602 (CPRMC) and Summit Estate, Inc. v. Cigna Healthcare of California, Inc. (N.D.Cal. 2017) No. 17-CV-03871-LHK, 2017 WL 4517111 (Summit), that County is correct as to the first proposition that it cannot maintain a private right of action for violation of the Knox-Keene Act. "[T]he California Court of Appeal has observed that private parties do not have a general power to enforce the Knox-Keene Act. [Citation.]" (CPRMC, at p. *5, citing Blue Cross of California, Inc. v. Superior Court (2009) 180 Cal.App.4th 1237, 1250.) "Instead, the California courts have recognized that the Department of Managed Health Care is charged with enforcing the Knox-Keene Act. See Blue Cross[, at p. 1250] (stating that 'the Knox-Keene Act expressly authorized the [Department of Managed Health Care] to enforce the statute and does not include a parallel authorization for suits by private individuals'); Cal. Med. Ass'n, Inc. v. Aetna U.S. Healthcare of Cal., Inc. [(2001)] 94 Cal.App.4th 151, 161 (stating that 'any standing [plaintiff] has to seek enforcement of section 1371 appears to be limited. [Plaintiff] does not have a general power to enforce Knox-Keene. Instead, such power has been entrusted exclusively . . . to the [Department of Managed Health Care], preempting even the common law powers of the Attorney General'); see also Bell v. Blue Cross of Cal. [(2005)] 131 Cal.App.4th 211, 215 ('The Knox-Keene Act is a comprehensive system of licensing and regulation under the jurisdiction of the Department of Managed Health Care.')" (Summit, at p. *7.)
BAC urged below that it should be allowed to pursue a private right of action for violation of Knox-Keene as a claim under the UCL and should be allowed to amend its complaint to state such a cause of action. California cases recognize that "although the Knox-Keene Act expressly authorizes the [Department of Managed Health Care] to enforce the statute and does not include a parallel authorization for suits by private individuals, private individuals can bring suit under the UCL for violations of the Knox-Keene Act. [Citations.]" (CPRMC, supra, 2013 WL 2436602, at p. *5, citing Bell v. Blue Cross of Cal., supra, 131 Cal.App.4th at pp. 216-217 and Cal. Med. Ass'n, Inc. v. Aetna U.S. Healthcare of Cal., Inc., supra, 94 Cal.App.4th at p. 161.) This does not assist BAC in its action against County.
As we held in People for the Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Bd. (2013) 125 Cal.App.4th 871, 878-879, "the issue of whether a public entity can be sued under the UCL as a 'person' is readily answered by reference to the plain language of section 17201, a section specifically enacted to answer any question of whose conduct the Legislature intended to be subject to the reach of UCL." (Id. at p. 881.) That language omitted "municipal or other public corporation" from the UCL's definition of "person." (Id. at p. 879.) We concluded that had the Legislature wished to include governmental entities in the definition of "persons" subject to UCL liability, it would have done so (ibid.), concluding that under the UCL [t]here is no persuasive way to argue that [the] County is a 'person' . . . ." (People for the Ethical Treatment of Animals, Inc., at p. 881; see e.g., California Medical Assn. v. Regents of University of California (2000) 79 Cal.App.4th 542, 551.)
BAC cannot maintain these causes of action against County. Nor could it state a UCL claim for the alleged violations. The Knox-Keene causes of action are foreclosed on their face.
DISPOSITION
We reverse the judgment granting the motion for judgment on the pleadings without leave to amend as to the causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and common counts. We remand the matter to the trial court with directions to allow an opportunity for BAC to amend its complaint to plead its excuse for failure to comply with the Government Claims Act under section 905, subdivision (e), and to allow BAC an opportunity to amend its causes of action for breach of the implied covenant of good faith and fair dealing and for common counts, and for further proceedings. As to all other causes of action, the judgment is affirmed.
Each party is to bear its own costs on appeal.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.