Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C09-00659
McGuiness, P.J.
Appellant Marci L. Pinkard (Pinkard), in propia persona, appeals from the trial court’s order granting respondent Blue Shield of California’s (Blue Shield) motion for summary judgment in her breach of contract and fraud action. Her primary contention on appeal is that the trial court abused its discretion in denying her request to amend her complaint. We reject the contention and affirm the judgment.
Factual and Procedural Background
Pinkard filed a complaint against Blue Shield on March 5, 2009, alleging she entered into a contract with Blue Shield for healthcare coverage in 2001 and paid more than $35,000 to Blue Shield before terminating the contract in 2008. She “received few medical and dental benefits” during the coverage period and Blue Shield “systematically delayed, denied, and refused medical procedures, ” raised premiums, and “instituted yearly out-of-pocket expenses.” Blue Shield also charged higher prices for prescriptions than retail pharmacies did, and on one occasion, threatened to cancel her policy if she made another late payment within 12 months, even though she had made her payment on the date her insurance agent told her it was due. She alleged two causes of action—breach of contract and fraud. Blue Shield filed its first amended answer on September 17, 2009.
On October 2, 2009, Blue Shield filed a motion for summary judgment or summary adjudication. In its separate statement, Blue Shield presented undisputed facts—based primarily on Pinkard’s deposition and the insurance contract—in opposition to all of the allegations in the complaint. For example, Blue Shield stated it denied Pinkard’s request for a virtual colonoscopy because, as Pinkard admitted, it was not covered under the contract. There was also no provision in the contract providing that a dental appointment be completed in a specified amount of time or that Blue Shield would be responsible for the acts of a third party provider. After Blue Shield denied Pinkard’s request for a Hepatitis B inoculation on the grounds it was not medically necessary, Pinkard did not request an independent medical review and did not otherwise show the medical necessity of the procedure, as Pinkard conceded the contract required her to do. The denial of the Hepatitis B inoculation occurred in 2002, and the contract provided that any claims to recover benefits “shall be commenced no later than two years after the date the coverage for the benefits in question were first denied.” The contract gave Blue Shield the right to institute yearly out-of-pocket expenses and to periodically raise dues. Pinkard admitted she never paid any out-of-pocket expenses and also acknowledged her dues could change according to what age bracket she was in. Pinkard admitted Blue Shield did not deny her any prescription drugs and that there was nothing in the contract requiring Blue Shield to provide her with prescriptions for less than what retail pharmacies charged.
Blue Shield argued judgment should be entered in its favor as to the breach of contract cause of action because the undisputed facts showed there was no evidence Blue Shield failed to do something the contract required it to do and no evidence Pinkard suffered any damages. Blue Shield alternatively argued that some of Pinkard’s allegations were time-barred. As to the fraud cause of action, Blue Shield argued Pinkard failed to proffer any evidence of misrepresentation on which she relied to her detriment.
Pinkard did not oppose the motion on the merits but asserted the motion was effectively a request for judgment on the pleadings because it was based on the argument that she failed to establish one or more of the elements of her causes of action. She argued that because Blue Shield did not file a demurrer to her complaint before filing its motion for summary judgment or summary adjudication, she had not had the opportunity to amend her complaint, which she requested that she be allowed to do.
At the hearing on the motion, Pinkard stated that by arguing that her claims “fail as a matter of law because... one or more material elements cannot be established, ” Blue Shield had “actually requested... not a summary judgment, but a judgment on the pleadings.” Blue Shield responded that its motion was a “fully factually-supported motion for summary judgment and not a demurrer on the pleadings.” The trial court stated: “If, in fact, I was ruling simply on the failure to plead facts sufficient to constitute a valid cause of action, the only way I would consider giving you a chance to amend is if you gave me some information of what you could add to the complaint that would amend it to make it a valid complaint.” It also stated that Blue Shield had presented sufficient undisputed facts to show that Pinkard could not prevail on either of her causes of action. It concluded, “[s]o on both grounds, if it was construed as a motion for judgment on the pleadings... you have no basis for me to allow you time to amend because I do not see any basis for that. [¶] On the other hand, if it’s being dealt with as a motion for summary judgment, it is a valid motion [for] summary judgment.”
The trial court issued a written order granting summary judgment in which it found Blue Shield had made a prima facie showing that there was no genuine issue of material fact as to both of Pinkard’s causes of action. It found Pinkard did not oppose the motion on its merits, did not file a separate statement, and otherwise failed to produce any evidence in opposition to the motion.
Discussion
Pinkard’s primary contention on appeal is that the trial court abused its discretion in denying her request to amend her complaint. She reiterates the argument she made below that Blue Shield’s motion was effectively a request for judgment on the pleadings and that she should therefore have been allowed to amend her complaint. We reject the contention.
Pinkard also asserts in two short paragraphs that the trial court abused its discretion by revealing at the settlement conference that it had granted Blue Shield’s motion for summary judgment, thereby “obviat[ing] any significant settlement negotiations between the parties....” We decline to address this argument, which is made without citation to the record or legal authority. We further note there is a section in the opening brief in which Pinkard requests that we take judicial notice of her “pleadings in re motion to tax and reply memorandum to tax, and respondent’s opposing papers in this matter.” She points out the trial court “postponed and never rescheduled appellant’s motion to tax respondent’s costs.” We deny the request for judicial notice and also decline to address this issue, as Pinkard does not cite to the record and presents no argument or legal authority as to why her motion should have been granted.
A motion for summary judgment, which presupposes that the pleadings are adequate to put a cause of action at issue (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382), is based on the argument that the moving party is entitled to judgment as a matter of law because there is no triable issue as to any material fact. (Code Civ. Proc., § 437c, subd. (c).) In contrast, where a pleading is defective in failing to allege an element of a cause of action, “the moving party need not address a missing element or, obviously, respond to assertions which are unintelligible or make out no recognizable legal claim.” (FPI Development, Inc. v. Nakashima, supra, 231 Cal.App.3d at p. 382.) In such situations, a motion for summary judgment is “necessarily transmuted into a test of the pleadings and the summary judgment motion into a motion for judgment on the pleadings.” (Ibid.)
Here, Blue Shield’s motion was a motion for summary judgment premised on the factual negation of Pinkard’s allegations that Blue Shield failed to do something the contract required it to do, that Blue Shield made misrepresentations on which she relied to her detriment, and that she suffered damages. It was not a facial challenge to the complaint but one that rested on undisputed facts derived from evidence outside the pleadings, e.g., the contract and Pinkard’s deposition. The trial court properly considered it a motion for summary judgment rather than a motion for judgment on the pleadings.
Pinkard does not argue the merits of the motion for summary judgment. We nevertheless note the record supports the order granting summary judgment.
Moreover, a party that seeks to avoid summary judgment by going outside the pleadings must move to amend in a timely fashion. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 [“If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing....”].) In moving to amend, the party must “[i]nclude a copy of the proposed amendment or amended pleading.” (Cal. Rules of Court, rule 3.1324(a)(1); cf. 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1200, p. 632 [in absence of proposed amendment, it will be “almost impossible to show an abuse of discretion in denying the motion”].) “ ‘ “[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown.” ’ ” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.)
Here, Pinkard made no showing below of how she intended to amend her complaint. In her opening brief, she simply lists, without explanation, eight causes of action—including breach of contract, breach of contract for failure to perform, fraud and negligent misrepresentation—she would allege if she were allowed to amend her complaint. For the first time in her reply brief, she sets forth various allegations she would make in an amended complaint. However, the allegations are essentially the same as those she made in her original complaint, i.e., that Blue Shield breached its contract and defrauded her by denying her coverage for inoculations, charging a higher premium, and causing undue delays. Thus, even assuming Pinkard had good reason for waiting until the reply brief to show how she would amend her complaint, (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [“Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before”], we conclude she has not shown she can amend her complaint to state a valid cause of action. The trial court did not abuse its discretion in denying her request to amend her complaint.
Disposition
The judgment is affirmed. Blue Shield shall recover its costs on appeal.
We concur: Pollak, J, .Siggins, J.