South Coast Emergency Medical Group Inc et al vs UnitedHealthCare Benefits Plan of CA et al

Case Number

24CV01706

Case Type

Hearing Date / Time

Fri, 03/07/2025 - 10:00

Nature of Proceedings

(3) Demurrers

Tentative Ruling

(1)       For the reasons set forth herein, the demurrers of defendants Cigna Healthcare of California, Inc., and of Aetna Heath of California, Inc., to plaintiffs’ second amended complaint are sustained, without leave to amend, as to the entirety of the complaint as against these defendants solely on the ground of misjoinder of defendants. This ruling is without prejudice to the filing of separate actions.

(2)       For the reasons set forth herein, the demurrer of UnitedHealthcare Benefits Plan of California is sustained, without leave to amend, as to the third (open book account) and sixth (economic duress) causes of action, and is in all other respects overruled. Defendant UnitedHealthcare shall file and serve its answer to plaintiffs’ second amended complaint, as it exists following this ruling, on or before March 24, 2025.

Background:

As alleged in plaintiffs’ second amended complaint (SAC):

Plaintiff South Coast Emergency Physicians Medical Group, Inc., dba Emergency Medical Group of Santa Barbara (South Coast), through its physicians, nurse practitioners, and physician assistants, provide emergency medical services in the emergency rooms of Santa Barbara, Goleta Valley, and Santa Ynez Cottage Hospitals. (SAC, ¶¶ 1, 19.) Plaintiff Mountain View Emergency Physicians Medical Group, Inc., (Mountain View), through its physicians, nurse practitioners, and physician assistants, provides emergency medical services in the emergency rooms of San Antonio Regional Hospital in Upland, California. (SAC, ¶¶ 2, 19.)

Defendants UnitedHealthcare Benefits Plan of California (United), Aetna Health of California, Inc., (Aetna), and Cigna Healthcare of California, Inc., (Cigna) are licensed by the California Department of Managed Healthcare (DMHC) under the Knox-Keene Health Care Services Plan Act (Health & Saf. Code, § 1340 et seq., the Knox-Keene Act) to arrange for the provision of health care services, and to enter into agreements with physicians and health care delivery systems to provide such services to their respective members. (SAC, ¶ 3.) Defendants have numerous members who live and work in or visit areas serviced by plaintiffs, which members have in the past received, and in the future will receive, emergency medical service from plaintiffs. (Ibid.)

Plaintiffs have ethical and statutory duties to treat everyone who comes to their emergency rooms without regard to ability to pay or insurance coverage. (SAC, ¶¶ 19-21; Health & Saf. Code, § 1317.) The claims subject to this action are all for emergency medical service rendered to defendants’ members for which plaintiffs have not been paid the reasonable and customary value or not paid at all. (SAC, ¶ 21.) Since January 1, 2022, plaintiffs have been barred by federal law from billing patients other than for copays, deductibles, and coinsurance amounts. (SAC, ¶ 22.) Defendants have a legal duty to reimburse providers of emergency services. (SAC, ¶ 23.)

Billing for medical care is highly standardized. (SAC, ¶ 7.) After emergency care is provided the plaintiffs’ billing company enters relevant demographic and treatment data into an electronic system. (Ibid.) Both plaintiffs use the same billing company. (Ibid.) The billing company generates claims on a standardized claim form known as a HCFA-1500. (Ibid.) Claims include plaintiffs’ usual and customary charges, i.e., the reasonable value of their services. (Ibid.) The defendants then process the claims and send plaintiffs an electronic response known as an explanation of benefits (EOB) aka remittance advice and payment. (Ibid.) If the defendant receiving the electronic claim agrees that the claims are for emergency services rendered to a patient the defendant has payment responsibility for, that defendant must pay the reasonable value of the claims. (Ibid.)

Medical services are described by Current Procedural Terminology codes (CPT codes) categorized by levels 1 through 5. (SAC, ¶ 8.) The claims at issue mostly involve CPT codes 3, 4, and 5. (Ibid.) All South Coast claims to defendants are based upon the same reasonable values of service for their respective CPT codes. (SAC, ¶ 9.)

Defendants have not contracted with South Coast for their members’ emergency services provided by plaintiffs. (SAC, ¶¶ 10, 13.) Defendants have arbitrarily underpaid, and continue to underpay, plaintiffs South Coast for the reasonable and customary value of emergency services provided to defendants’ members. (SAC, ¶¶ 11-12, 14-15.) Since January 1, 2021, United has refused to pay defendants any amount at all for numerous level 5 claims. (SAC, ¶ 17.)

On March 25, 2024, plaintiff South Coast filed its original complaint in this action.

On April 12, 2024, without any response to the original complaint having been filed, plaintiffs filed their first amended complaint (FAC) asserting seven causes of action: (1) statutory violations of the Knox-Keene Act; (2) quantum meruit; (3) indebitatus assumpsit; (4) open book account; (5) unfair business practices; (6) interference with economic relations; and (7) economic duress.

On June 11, 2024, Aetna, Cigna, and United filed separate demurrers to the FAC, arguing both that the defendants are misjoined and that each cause of action is not sufficiently alleged as to that demurring defendant.

On October 4, 2024, the court sustained the demurrers (i) as to the first cause of action (violations of the Knox-Keene Act), without leave to amend, (ii) as to each cause of action, and to the FAC as a whole, on the grounds of misjoinder, with leave to amend, and (iii) as to the fourth (book account), fifth (Unfair Competition Law), and seventh (economic duress), for failing sufficiently to allege these causes of action, with leave to amend.

On November 11, 2024, plaintiffs filed their SAC asserting six causes of action: (1) quantum meruit; (2) indebitatus assumpsit; (3) open book account; (4) unfair business practices; (5) interference with economic relations; and (6) economic duress. These causes of action assert the same claims as in the FAC, with the former first cause of action omitted. The SAC also continues to assert all causes of action against each of the three defendants.

Each of the defendants now separately demurs to the SAC. The demurrers are opposed by plaintiffs.

Analysis:

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

(1)       Requests for Judicial Notice

In opposition to the demurrers, plaintiffs request that the court take judicial notice of: (Plaintiffs’ Request for Judicial Notice [PRJN], exhibit 1) Judicial Council form PLD-C-001(2), Cause of Action – Common Counts. This request for judicial notice is granted. (See Evid. Code, § 452, subds. (b), (c).) Judicial notice extends only to the existence and text of the form.

(2)       Demurrers of Aetna and Cigna

Defendants Aetna and Cigna each demur to the SAC on the grounds of misjoinder. (The demurrer of United on that ground is discussed separately, below.)

“The party against whom a complaint … has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: [¶] … [¶] (d) There is a defect or misjoinder of parties.” (Code Civ. Proc., § 430.10, subd. (d).)

Each of the defendants assert that the reimbursement claims that form the basis for plaintiffs’ action against each defendant are distinct transactions and must be evaluated separately from transactions involving plaintiffs’ claims against each other defendant.

The general rules of joinder of defendants are set forth in Code of Civil Procedure section 379:

“(a)      All persons may be joined in one action as defendants if there is asserted against them:

            “(1)      Any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or

            “(2)      A claim, right, or interest adverse to them in the property or controversy which is the subject of the action.

“(b)      It is not necessary that each defendant be interested as to every cause of action or as to all relief prayed for. Judgment may be given against one or more defendants according to their respective liabilities.

“(c)      Where the plaintiff is in doubt as to the person from whom he or she is entitled to redress, he or she may join two or more defendants, with the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties.”

In ruling on the prior demurrer, the court sustained the demurrer of each of the defendants on this ground. The court reasoned:

“Plaintiffs argue that the ‘same transaction, occurrence, or series of transactions or occurrences’ rule is satisfied here, citing Petersen v. Bank of America Corp. (2014) 232 Cal.App.4th 238 (Petersen) as dispositive.

“In Petersen, 965 individually named plaintiffs, each alleged to be a borrower of defendant lender, filed a complaint against the lender alleging various breaches of duties owed to plaintiffs for loans the plaintiffs alleged the defendant knew were unaffordable. (Petersen, supra, 232 Cal.App.4th at pp. 240-242.) The defendant demurred to the complaint asserting a misjoinder of plaintiffs. (Id. at p. 240.) The trial court sustained the demurrer, dismissing all but one of the plaintiffs. (Id. at p. 242.) On appeal the Petersen court reversed. (Ibid.)

“The rules of joinder for plaintiffs are set forth in Code of Civil Procedure section 378:

“ ‘(a)    All persons may join in one action as plaintiffs if:

            “ ‘(1)    They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or

            “ ‘(2)    They have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.

“ ‘(b)    It is not necessary that each plaintiff be interested as to every cause of action or as to all relief prayed for. Judgment may be given for one or more of the plaintiffs according to their respective right to relief.’

“ ‘In this case, the key words on which that choice turns are “same ... series of transactions.” As far back as the late 1920’s, in the immediate wake of the 1927 amendment of section 378, our Supreme Court noted that the permissive joinder statute reflected the Legislature’s desire that joinder be liberally construed so as to prevent the diseconomy of a ‘multiplicity’ of cases. Said the court in Joerger v. Pacific Gas & Electric Co. [(1929) 207 Cal. 8, 19]: “One of the objects of the reformed or code procedure is to simplify the pleadings and conduct of actions, and to permit the settlement of all matters of controversy between parties in one action, so far as may be practicable.... To permit a joinder where possible makes manifestly for the expeditious disposition of litigation without working hardship to any party defendant, and for this reason statutes relating to joinder should be liberally construed, unless expressly forbidden, to the end that a multiplicity of suits may be prevented.” ’ (Petersen, supra, 232 Cal.App.4th at p. 249.)

“The Petersen court noted a number of cases in which multiple plaintiffs were permitted to join their claims in one action. In Anaya v. Superior Court (1984) 160 Cal.App.3d 228 (Anaya), the court ‘allowed the joinder of 200 plaintiffs on the basis that exposure to a harmful chemical involved “the same series of transactions” even though the plaintiffs were exposed at different times and in different ways.’ (Petersen, supra, 232 Cal.App.4th at p. 250.) ‘But the Anaya court pointed out that the key question was the existence of “common questions of law and fact,” and not whether, as the defendants had emphasized, there were “differences in the evidence to be presented and in the legal theories to be used by the various plaintiffs.” The “point” of section 378, said the court, is to allow joinder where “ ‘any question of law or fact common to all plaintiffs will arise.’ ” And Anaya thought “any” means “any.” ’ (Ibid.)

“In State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093 (State Farm), abrogated on other grounds in Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 184-185, ‘joinder was allowed in Northridge earthquake litigation because there was an allegedly fraudulent “systematic” practice of deceiving policyholders. State Farm allowed the joinder of 165 Northridge earthquake claimants who asserted that they were the victims of a clever insurance policy switch: Their earthquake endorsements to all risk policies had been replaced with a separate earthquake policy not tethered to the all risk policy, resulting in lower total coverage. [Citation.] Significantly for our purposes, the plaintiffs in State Farm further alleged that after the earthquake they suffered “some 15 different types of ‘improper claims handling processes’ ” which were “ ‘systematically, methodically and generally’ ” implemented by the insurer. [Citation.]’ (Petersen, supra, 232 Cal.App.4th at pp. 250-251.)

“In Adams v. Albany (1954) 124 Cal.App.2d 639, “joinder of no less than 40 sets of home buyers (recent war veterans) was held proper. Even though the defendant argued its allegedly fraudulent scheme involved torts that took place at different times and places, and even though the evidence as to one house would have no probative value as to any other house, the appellate court invoked the ‘series of transactions’ language from section 378 and said it was enough that defendant was alleged to have engaged in a conspiracy to defraud the veterans by selling them substandard housing. As here, Adams is a case where the alleged ‘business plan’ of the defendant was common to multiple defendants, even if their specific damages might vary.” (Petersen, supra, 232 Cal.App.4th at pp. 251–252.)

“The Petersen court identified that the plaintiffs alleged a common plan of the defendant lender. (Petersen, supra, 232 Cal.App.4th at p. 252.) The Petersen court did, however, emphasize that the Petersen case involved essentially only one lender, distinguishing its allegations from federal cases finding misjoinder where there were genuinely multiple defendants. (Ibid.) Thus, the Petersen court concluded that there was no misjoinder of plaintiffs. (Id. at pp. 252-253.)

“Defendants distinguish Petersen because Petersen involved only one defendant and the lack of allegations here of any interrelatedness between claims against each defendant. Defendants point to Moe v. Anderson (2012) 207 Cal.App.4th 826 (Moe), also discussed in Petersen.

“As stated in Petersen: ‘In Moe, two patients alleged they were victims of separate sexual assaults allegedly committed by a physician. To be sure, joinder was not appropriate as to the physician, since the assaults involved “separate and distinct” events “during separate and distinct time periods.” [Citation.] But the claims against the medical group for which the physician worked was a different story. Joinder was appropriate as to the single employer since the same basic issue of negligent supervision and hiring was common to both (otherwise disparate) plaintiffs, and would involve the same evidence against a single defendant. The court said: “Thus, as was the case in Anaya, plaintiffs have asserted a right to relief arising out of the same series of transactions. So too are there common issues of law or fact. The same evidence with respect to Healthworks’s hiring and supervision of Anderson will need to be adduced in separate lawsuits if joinder is not allowed.” [Citation.] Needless to say, in the case before us there is much in the way of common evidence and theories of liability and much of the same evidence will have to be repeatedly produced if joinder is not allowed. Indeed, we shudder to think of the duplication of effort if even a dozen of the 800 or so plaintiffs who have brought this appeal have individual trials on liability issues.’ (Petersen, supra, 232 Cal.App.4th at p. 251.)

“The statutory language of section 379, subdivision (a)(1) requires two elements: that asserted against them is a ‘right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences’ and that there is a ‘question of law or fact common to all’ the defendants. As now alleged, there is no sufficient allegation of joint or several liability among the defendants. There is a generic allegation of mutual agency (FAC, ¶ 5), but this conclusory allegation is insufficient by itself to assert joint or several liability. Moreover, in opposition to these demurrers, plaintiffs do not argue any joint or vicarious liability of one defendant based on the conduct of another. In other words, to the extent that the court ultimately finds that one or more claims for payment by South Coast from United, for example, is meritorious, the judgment based upon that payment would run solely against United and not against any other defendant. Joinder of defendants under section 379 therefore depends upon the alternative that the right to relief is ‘in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences.’

“Plaintiffs do not allege liability of two or more defendants to arise from the same transaction. Plaintiffs allege that they provide emergency medical services to specific patients, each of whom is a person covered at the time by an insurance plan of one defendant. There are no allegations that any specific patient was covered by insurance plans of more than one defendant. There are therefore no common transactions or occurrences as among the defendants. Plaintiffs’ appeal to Petersen is based upon the argument that the alleged failure to pay as required under the Knox-Keene Act constitutes a common series of transactions or occurrences.

“As discussed above, the joinder statute is to be construed liberally towards its purposes of ending a multiplicity of suits and efficient administration of justice. Maintaining this litigation, as now pleaded, as a single action fails to meet this purpose. The common feature alleged is that each defendant is engaging in essentially the same conduct of either not paying or offering to pay at an unreasonably low rate for the services rendered by the plaintiffs to particular patients. The FAC is reasonably construed to allege that each defendant is making that payment determination itself based upon its own considerations. Each defendant’s payment practice will have to be discovered separately. There is no commonality shown which would make a joint trial as to all three defendants efficient, and, as currently pleaded, such a joint trial would be more likely to cause confusion and inefficiencies in order to keep the claims asserted, and defended against, each defendant separate from one another.” (Minute Order, filed Oct. 4, 2024, at pp. 17-20.)

In sustaining the demurrer on the grounds of misjoinder, the court stated: “As to the issue of misjoinder, the court notes that, unless plaintiffs intend to amend to add allegations to support the joinder of defendants, the procedurally appropriate amendment would be to drop two defendants from this action and to file separate actions asserting the claims against each of those two defendants.”

Defendants argue that none of the amendments to the original complaint cures the defect of misjoinder of defendants. Indeed, new allegations more strongly demonstrate the lack of sameness of the transaction, occurrence, or series of transactions or occurrences.

“Each Defendant is severally liable for the claims relating to its members.” (SAC, ¶ 35.) “Pursuant to Code of Civil Procedure 379(b) Plaintiff South Coast is seeking separate judgments against Defendants Aetna, Cigna, United and Does 1 through 50 for the reasonable value of the Underpaid Claims less any amount paid plus interest and penalties.” (SAC, ¶ 36.)

The clear import of these allegations is that injury claimed by plaintiffs is for divisible injuries specific to each defendant, i.e., the nonpayment of specific claims arising from unique services rendered to a member of a particular defendant. There is no claim of overlapping liability to multiple defendants as to any specific service rendered and hence no claim of overlapping liability as between or among defendants.

In addition to the discussion quoted above, the case of action Hoag v. Superior Court (1962) 207 Cal.App.2d 611 (Hoag) is helpful. In Hoag, three individual plaintiffs commenced an action seeking damages against four individual defendants. (Id. at pp. 612-613.) Each of the individual plaintiffs asserted a separate claim against each of the defendants for invasion of privacy based upon each defendant separately and improperly circulating mugshots taken of each plaintiff. (Id. at p. 613.) All of the mugshots were taken on the same day when each plaintiff was arrested in connection with a civil protest. (Ibid.) One plaintiff moved to change venue from Los Angeles County to Orange County based upon his residence there. (Id. at p. 615.) The trial court denied the motion. (Ibid.)

On writ review in Hoag, the court noted that that the issue of venue depended upon the question of whether the moving defendant was properly joined as a defendant. (Hoag, supra, 207 Cal.App.2d at p. 615.)

“Section 395 of the Code of Civil Procedure provides, so far as is pertinent here, as follows: ‘(1) In all other cases, except as in this section otherwise provided, and subject to the power of the court to transfer actions or proceedings as provided in this title, the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action.’ And it is the well-settled rule that ‘[a] defendant is not entitled to have a suit removed to the county of his residence unless it appears that none of the other defendants who are proper parties is a resident of the county in which the action [is] filed. [Citations.]’ [Citation.]” (Hoag, supra, 207 Cal.App.2d at p. 616.)

“It is further established that if the principles relating to joinder of parties defendant [citations] have been satisfied, there is no improper joinder of cause of action [citation]. [Citation.] [¶] However …: ‘The converse of the above rule is that where the action or the joinder is not in good faith and is designed to defeat the normal right of one or more defendants to a trial at residence, venue may be changed, i.e., the residence of a defendant improperly joined will not be sufficient to establish venue. This limitation is stated in C.C.P. 395, as follows: ‘If any person is improperly joined as a defendant, or has been made a defendant solely for the purpose of having the action tried in the county … where he resides, his residence must not be considered in determining the proper place for the trial of the action.’ ” (Hoag, supra, 207 Cal.App.2d at pp. 616–617, citation & fns. omitted.)

The Hoag court concluded: “It is clear that the defendants acted in four entirely different transactions independently of each other. … Thus there has been a misjoinder of causes of action.” (Hoag, supra, 207 Cal.App.2d at p. 618.) “Although the modern joinder statutes are to be liberally construed and applied, neither the statutes nor the case law in California permit unlimited joinder. … ‘Although it is frequently stated that defendants may be joined even though each named defendant is not a party to, or interested in or affected by every count pleaded in the complaint … the holdings seem to demand that there be some sort of factual “nexus” connecting or associating the claim pleaded against the several defendants.’ ” (Ibid.)

“In the instant case, there is no allegation of conspiracy, community of interest, or concerted action in any respect. The complaint demonstrates no doubt as to the person from whom plaintiffs claim they are entitled to redress; nor is there any showing that the acts of defendants operated successively ‘to cause the injury for which recovery is sought.’ [Citation.] There is no one cause in which all defendants are interested or affected [citations].” (Hoag, supra, 207 Cal.App.2d at pp. 618–619, citation & fn. omitted.)

Moreover, Hoag expressly rejected the argument put forward here by plaintiffs: “The existence of possible common questions of law and fact is insufficient in itself to permit joinder.” (Hoag, supra, 207 Cal.App.2d at p. 620; accord, Coleman v. Twin Coast Newspaper, Inc. (1959) 175 Cal.App.2d 650, 654.)

When the claims of the SAC are analyzed, South Coast alleges that Aetna has failed to pay for services rendered to Aetna’s members and that Cigna has failed to pay for services rendered to Cigna’s members. There is no alleged overlap among the members. The commonality alleged is that both Aetna and Cigna had the same legal duty to pay reimbursement that was breached in the same generic way, which is to say, by underpayment or nonpayment. But none of the claims against Aetna arise from transactions or occurrences in which Cigna is alleged to play any part, and none of the claims against Cigna arise from transactions or occurrences in which Aetna is alleged to play any part (and so also as to United). Plainly, South Coast’s claims against Aetna are completely distinct from South Coast’s claims against Cigna, which are all distinct from South Coast’s claims against United. Joinder of these defendants is therefore improper.

The demurrer of Aetna and Cigna for misjoinder of defendants will be sustained.

In opposition, plaintiffs argue that if the court finds misjoinder, the proper remedy should be severance rather than dismissal, citing Code of Civil Procedure sections 1048 and 379.5.

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).)

“When parties have been joined under Section 378 or 379, the court may make such orders as may appear just to prevent any party from being embarrassed, delayed, or put to undue expense, and may order separate trials or make such other order as the interests of justice may require.” (Code Civ. Proc., § 379.5.)

However, severance under either of these sections presupposes that joinder of all parties is appropriate. Even with severance, the case proceeds with all defendants, even if by separate trials. Here, joinder of the defendants is not proper, which is a proper basis for demurrer. (Code Civ. Proc., § 430.10, subd. (d).) Sustaining the demurrer is therefore the proper remedy. The SAC and plaintiffs’ arguments demonstrate that further amendment is not possible to cure this defect. The demurrer will be sustained as to Aetna and Cigna on this ground without leave to amend. Based on this result, it is unnecessary for the court to address the other grounds for demurrer raised by these defendants.

Although sustaining the demurrer without leave to amend will result in the dismissal of these defendants, such dismissal is without prejudice to the filing of a separate action. The court notes that although plaintiffs make a brief argument regarding the application of the statute of limitations in the event of dismissal, the statute of limitations is not before the court in this demurrer and so the court does not here express any opinion as to the applicability, inapplicability, or defense to the statute of limitations as to such other action.

(3)       Demurrer of United

            (A)       Misjoinder

Because the court is sustaining the demurrers of Aetna and Cigna to the SAC on the ground of misjoinder, these parties will no longer be defendants in this action. United is the first named defendant in the SAC and is the only defendant against whom both plaintiffs assert claims. United will thus appropriately be the only named defendant remaining in this action. This eliminates the basis for asserting misjoinder as to United. The demurrer on that ground will be overruled as to United.

Because the demurrer on the ground of misjoinder will be overruled, the court will address United’s other grounds for demurrer as to the third (open book account), fourth (unfair business practices), and sixth (economic duress) causes of action.

            (B)       Open Book Account

Plaintiffs’ third (formerly fourth) cause of action is for an open book account.

“The term ‘book account’ means a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or to backing but detachable therefrom, or (3) on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner. A “book account” does not include consumer debt.” (Code Civ. Proc., § 337a, subd. (a).)

“ ‘A “book account” is “a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith ....” ’ [Citation.] The creditor must keep these records in the regular course of its business and ‘in a reasonably permanent form,’ such as a book or card file. [Citation.] ‘A book account is “open” where a balance remains due on the account.’ [Citation.]” (Professional Collection Consultants v. Lujan (2018) 23 Cal.App.5th 685, 690–691.)

In ruling on the demurrer to this cause of action in the FAC, the court stated:

“The FAC alleges only that plaintiffs have maintained an account of the amounts owed by the defendants. (FAC, ¶ 46.) Unlike a claim for quantum meruit as approved in [Bell v. Blue Cross of California (2005) 131 Cal.App.4th 211], the nature of the debtor and creditor relationship alleged as between the plaintiffs and the defendants does not appear to be the sort for which a book account claim is proper. (See Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752.) In any case, the FAC does not allege that the account maintained constitutes a ‘book account’ within the meaning of Code of Civil Procedure section 337a, subdivision (a).” (Minute Order, filed Oct. 4, 2024, at p. 7.)

United argues that plaintiffs have not cured this defect by their allegations in the SAC. Plaintiffs argue that an open book account is a common count subject to general pleading and that, in any event, the plaintiffs have sufficiently alleged both the debtor-creditor relationship and the “book account.”

The SAC now includes allegations as to the third cause of action:

“Defendants Aetna, Cigna, United and Does 1 through 50 owe Plaintiff South Coast for emergency medical services rendered to their members. Defendants United and Does 1 through 50 owe Plaintiff Mt. View for emergency medical services rendered to its members.” (SAC, ¶ 54.)

“Detailed Record. Plaintiffs have maintained an account of the amounts owed by Defendants. Plaintiffs’ billing company maintains a detailed electronic record of all claims for services rendered by Plaintiffs to Defendants. The record includes, inter alia, for each claim, patient demographics, the date of service, the services rendered by CPT code, and the reasonable amount charged for each claim. The record also shows any amounts paid by Defendants. The record is kept in the regular course of business. Promptly after the Plaintiffs rendered services to Defendants’ members claims are added to the record. A bill, i.e. a claim, is generated based on the record and sent to Defendants. Any payment made on a claim is recorded on the record. The record is maintained electronically. Electronic record keeping is the standard in the industry and indeed required.” (SAC, ¶ 55.)

“Despite demand the amount due has not been paid and is now due and owing in an amount to be proven at trial.” (SAC, ¶ 56.)

As the court previously noted, “ ‘[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 ....’ [Citation.]” (Professional Collection Consultants v. Lujan (2018) 23 Cal.App.5th 685, 690.) “A pleading which is sufficient as a common count is not generally subject to general demurrer or to special demurrer on the ground of uncertainty.” (Moya v. Northrup (1970) 10 Cal.App.3d 276, 279.)

An action for an open book account is generally viewed as a common count (e.g., PRJN, exhibit 1), but the exception for simplified pleading of a common count does not end the matter here. “It is well-established under California procedure that specific pleading controls, limits, and supersedes general pleading found in the same or a prior complaint.” (Henderson v. Superior Court (1978) 77 Cal.App.3d 583, 590; accord, Orloff v. Metropolitan Trust Co. (1941) 17 Cal.2d 484, 489.) “As one court observed: ‘[G]eneral pleadings are controlled by specific allegations.... [¶] For example, where plaintiff alleges a permissible conclusion of law such as the due performance of a condition precedent but also avers specific additional facts which either do not support such conclusion, or are inconsistent therewith, such specific allegations will control “and a complaint which might have been sufficient with general allegations alone may be rendered defective....” [Citations.]’ [Citation.]” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 174–175.)

In this case, plaintiffs expressly incorporate into their third cause of action all of the previous allegations of fact of the SAC. (SAC, ¶ 53.) In these specific allegations, plaintiffs allege no contract or other transactional relationship with United apart from United’s obligations arising under the Knox-Keene Act. (E.g., SAC, ¶¶ 10, 13, 20, 23, 25, 28.) These specific allegations control over the legal conclusions in the third cause of action.

As discussed in the court’s ruling on the prior demurrer, plaintiffs properly assert restitution claims for quantum meruit and assumpsit as explained in Bell v. Blue Cross of California (2005) 131 Cal.App.4th 211 and Prospect Medical Group, Inc. v. Northridge Emergency Medical Group (2009) 45 Cal.4th 497. The court noted that there was, at least for pleading purposes, no substantial distinction between these two causes of action. Moreover, these causes of action are not at issue in this demurrer. But an open book account, although still subject to common count pleading rules, is distinct from common counts of quantum meruit and assumpsit, as statutorily defined in Code of Civil Procedure section 337a, subdivision (a).

The statutory description of a book account arising out of “one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation” makes the transactional relationship of the parties an essential element:

“A book account is created by the agreement or conduct of the parties in a commercial transaction. Nonetheless, the mere recording in a book of transactions or the incidental keeping of accounts under an express contract does not of itself create a book account. Parties to a written or oral contract may, however, provide that monies due under such contract shall be the subject of an account between them.” (H. Russell Taylor’s Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 728.)

In other words, a restitution claim by one party against another does not automatically become a claim for an open book account by keeping a written account of the amounts the plaintiff asserts are due. Here, the specific allegations of the SAC demonstrate the absence of a contractual or fiduciary relationship between plaintiffs and United. These allegations conclusively negate an essential element of the third cause of action. The demurrer to the third cause of action will therefore be sustained without leave to amend.

            (C)       Unfair Competition Law

Plaintiffs’ fourth (former fifth) cause of action is for violation of the Unfair Competition Law (UCL, Bus. & Prof. Code, § 17200 et seq.) In ruling on the demurrer to this cause of action in the FAC, the court concluded by sustaining the demurrer with leave to amend:

“Defendants also argue that the general allegations of this cause of action are insufficient. ‘A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.’ (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The FAC alleges a general practice of the defendants, but, insofar as the UCL claim is dependent upon specific violations of the Knox-Keene Act (e.g., FAC, ¶ 49), reasonable specificity requires at least a concrete example of a violation where each defendant has suffered an injury (pseudonyms for patients being sufficient). (See Khoury, supra, at p. 619 [demurrer sustained where complaint fails to describe with reasonable particularity the facts supporting violation].)” (Minute Order, filed Oct. 4, 2024, at p. 11.)

United argues that this cause of action is insufficiently stated because plaintiffs do not allege how the reasonable values were determined, how the values are unreasonable, or a concrete example of claims.

Plaintiffs have sufficiently alleged the nature of the unfair practices subject to the UCL in its allegations regarding United’s activities in violating the Knox-Keene Act. (E.g., SAC, ¶¶ 20-31.) In response to the court’s sustaining of the demurrer to this cause of action in the FAC, plaintiffs have added allegations of specific examples of underpayment and nonpayment. (E.g., SAC, ¶¶ 59, 60.) Taken together, these allegations provide specificity as to particular incidents sufficient to show a violation of the UCL. It is unnecessary for plaintiffs to allege evidentiary facts as to why or how reasonableness is determined, especially where there are allegations of incidents alleged of arbitrary nonpayment. (See, e.g., Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212-213 [evidentiary facts not necessary for pleading UCL specifically].) These allegations are sufficient to state a cause of action under the UCL. The demurrer to the fourth cause of action will be overruled.

            (D)       Economic Duress

Plaintiffs’ sixth (former seventh) cause of action is for “economic duress.” In sustaining the demurrer to this cause of action in the FAC, the court stated:

“Defendants argue that ‘economic duress’ is a defense and not a cause of action. Plaintiffs’ FAC cites in this cause of action to Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154 (Rich). (FAC, ¶ 74.)

“In Rich, the plaintiff entered into a contract with the defendants for grading and excavating. (Rich, supra, 157 Cal.App.3d at p. 1156.) During performance of the contract, rock was encountered that required blasting, which was outside the scope of the contract. (Ibid.) The defendants agreed to the extra cost of the blasting, even though the extra cost was expressly only estimated at the time. (Ibid.) After the work was done, the plaintiffs submitted a final bill for $72,286.45. (Ibid.) The plaintiff told the defendants that the plaintiff would go broke if not paid because it was a new company. (Id. at pp. 1156-1157.) Although the defendants expressed no complaints about the work or the invoices, the defendants said that they would pay $50,000 or nothing and that the plaintiff could sue if not satisfied by the compromise. (Id. at p. 1157.) The plaintiff signed settlement and release agreements for the $50,000, and subsequently filed suit for the unpaid balance due. (Ibid.) The defendants asserted the settlement as a defense; the trial court found that the settlement and release agreements were signed under duress and unenforceable. (Ibid.) Judgment was rendered in favor of the plaintiff for the balance and the defendants appealed. (Id. at pp. 1155-1156.)

“The Rich court affirmed. (Rich, supra, 157 Cal.App.3d at p. 1161.) The court first noted the basic principles:

“ ‘California courts have recognized the economic duress doctrine in private sector cases for at least 50 years. [Citation; fn.] The doctrine is equitably based [citation] and represents “but an expansion by courts of equity of the old common-law doctrine of duress.” [Citation.] As it has evolved to the present day, the economic duress doctrine is not limited by early statutory and judicial expressions requiring an unlawful act in the nature of a tort or a crime. [Citations.] Instead, the doctrine now may come into play upon the doing of a wrongful act which is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator’s pressure. [Citations.] The assertion of a claim known to be false or a bad faith threat to breach a contract or to withhold a payment may constitute a wrongful act for purposes of the economic duress doctrine. [Citations.] Further, a reasonably prudent person subject to such an act may have no reasonable alternative but to succumb when the only other alternative is bankruptcy or financial ruin.’ (Rich, supra, 157 Cal.App.3d at pp. 1158–1159.)

“The Rich court then concluded that the defendants’ bad faith breach and plaintiff’s economic circumstances constituted duress to render releases unenforceable. (Rich, supra, 157 Cal.App.3d at pp. 1160–1161.) As defendants here correctly note, this application of the doctrine of economic duress was purely defensive in that it rendered a contract unenforceable. The Rich plaintiff sought and obtained a judgment based upon breach of its underlying contract. The Rich plaintiff neither sought nor obtained any damages in tort for defendants’ coercive tactics. Rich thus does not support a claim in tort based upon economic duress. (See also Tarpy v. County of San Diego (2003) 110 Cal.App.4th 267, 277 [‘the law recognizes the concept of economic duress as a basis for vitiating a coerced party’s consent to an agreement’].)

“At the same time, however, Rich does not support the opposite claim, namely, that there is no recovery in tort possible for economic duress. In opposition to the demurrer, plaintiffs cite a different case to support their claim in tort, CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631 (CrossTalk).

“In CrossTalk, the plaintiffs approached the defendant about forming an outside company to contract with CBS to supply video promotional spots. (CrossTalk, supra, 65 Cal.App.4th at p. 636.) After agreeing in principle but while a contract was being negotiated, the defendant demanded the plaintiffs pay the defendant $500 per month to ‘help him out.’ (Ibid.) The plaintiffs were greatly distress and believed that they had no reasonable alternative but to accede to the demand in order to secure the contract with CBS. (Id. at p. 637.) The plaintiffs perceived that the monthly payment was necessary to maintain the contract. (Id. at pp. 637-638.) The defendant then demanded that the monthly payments increase to $1,000, which plaintiffs explained was unaffordable. (Id. at p. 638.) After being told that the plaintiff could not pay the increased demands, the defendant made the plaintiff’s performance under the contract difficult. (Ibid.) The defendant then claimed that there were a number of problems with the plaintiffs’ performance. (Ibid.) The plaintiffs told CBS about the defendant’s demands. (Ibid.) CBS then both terminated the defendant and the plaintiffs’ contract on the basis of the ‘admitted wrongdoing.’ (Id. at pp. 638-639.)

“The plaintiffs in CrossTalk filed suit asserting three legal theories: economic duress, and intentional and negligent infliction of emotional distress. (CrossTalk, supra, 65 Cal.App.4th at p. 639.) The defendant demurred to each cause of action on the grounds of the affirmative defense of unclean hands. (Ibid.) The trial court sustained the demurrer on the theory that the alleged conduct constituted commercial bribery under Penal Code section 641.3 and therefore established the defense of unclean hands. (Ibid.)

“On appeal in CrossTalk, the court applied the test to establish unclean hands set forth in Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048 (Blain) that ‘whether there is a bar depends upon the analogous case law, the nature of the misconduct, and the relationship of the misconduct to the claimed injuries.’ [Citation.]” (CrossTalk, supra, 65 Cal.App.4th at p. 641.)

“ ‘Blain does not compel the conclusion that plaintiffs are barred from suing for the allegedly extortionate actions of defendant. The first prong of the “Blain test” is analogous case law. Defendant has cited no authority finding unclean hands generally to be a defense to claims for extortion or “economic duress” in other factual circumstances, or generally to be a defense to claims for intentional or negligent infliction of emotional distress. Defendant’s authorities merely confirm that application of the unclean hands doctrine depends upon the circumstances of the case, the nature of the claims asserted, and comparison of the parties’ conduct—factual inquiries. “[I]t is not every wrongful act nor even every fraud which prevents a [plaintiff] from obtaining relief.” [Citation.]’ (CrossTalk, supra, 65 Cal.App.4th at p. 642.)

“ ‘The doctrine of “economic duress” can apply when one party has done a wrongful act which is sufficiently coercive to cause a reasonably prudent person, faced with no reasonable alternative, to agree to an unfavorable contract. [Citation.] The party subjected to the coercive act, and having no reasonable alternative, can then plead “economic duress” to avoid the contract. The instant case directly concerns not economic duress, but instead an allegation of extortion. Plaintiffs, however, used the term “economic duress” in their complaint, and the parties have consequently briefed the subject extensively. The economic duress cases do appear to be the type of “analogous case law” referenced in the first prong of the Blain test, and the treatment of the “reasonable alternative” issue in the economic duress cases is instructive.’ (CrossTalk, supra, 65 Cal.App.4th at p. 644.)

“ ‘When a party pleads economic duress, that party must have had no “reasonable alternative” to the action it now seeks to avoid (generally, agreeing to a contract). If a reasonable alternative was available, and there hence was no compelling necessity to submit to the coercive demands, economic duress cannot be established. Whether the party asserting economic duress had a reasonable alternative is determined by examining whether a reasonably prudent person would follow the alternative course, or whether a reasonably prudent person might submit.’ (CrossTalk, supra, 65 Cal.App.4th at p. 644.)

“ ‘Defendant argues there is no cause of action for “economic duress.” It appears, however, that the Supreme Court has noted a general “right ... to be free from acts constituting duress” (Leeper v. Beltrami (1959) 53 Cal.2d 195, 202 [(Leeper)]) and the propriety of a “cause of action for wrongful acts in the nature of duress....” (Id. at pp. 203–205.) Such duress may consist of threats to business or property interests. (Id. at p. 203.) The “wrongful act” must be sufficiently coercive to cause a reasonably prudent person to be faced with no reasonable alternative but to “succumb.” Examples of such “wrongful acts” include the assertion of a claim known to be false, a bad faith threat to breach a contract or a threat to withhold a payment.” (CrossTalk, supra, 65 Cal.App.4th at p. 645, parallel citations omitted.)

“ ‘In Rich & Whillock, a “start up” corporation sued on a contract and was required to argue the economic duress doctrine to avoid being barred from recovery by a release it had signed in order to obtain a reduced payment under the contract. Although there was no “affirmative” claim pleaded for “economic duress,” the court’s discussion of the basis for the doctrine provides support for the proposition that claims such as “economic duress” can be asserted offensively. “The underlying concern of the economic duress doctrine is the enforcement in the marketplace of certain minimal standards of business ethics.... They include equitable notions of fairness and propriety which preclude the wrongful exploitation of business exigencies to obtain disproportionate exchanges of value.... The economic duress doctrine serves as a last resort to correct these aberrations when conventional alternatives and remedies are unavailing.” [Citation.]’ (CrossTalk, supra, 65 Cal.App.4th at p. 645.)

“The above discussion demonstrates that economic duress can, under appropriate circumstances, be a basis for a claim for recovery. CrossTalk’s citation to Leeper, supra, is instructive: ‘The theory of recovery is not clear. But whether it be considered a suit for restitution to recover money paid under duress [citation], or an action for money had and received sounding in tort [citation], or, simply an action for money damages for the tortious conduct of the defendants resulting in injury to the plaintiffs, the basic nature of the wrongdoing of these defendants is duress.’ (Leeper, supra, 53 Cal.2d at p. 207.) ‘However denominated (e.g., extortion, menace, duress), our Supreme Court has recognized a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution. [Citations.] It is essentially a cause of action for moneys obtained by duress, a form of fraud.’ (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426 (Fuhrman), disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 219.)

“Plaintiffs’ allegations, however, do not match this theory. ‘All defendants are refusing to pay the reasonable value of services rendered. Defendant United is also refusing to pay Plaintiffs any amount at all for level 5 services admittedly rendered to its members. Defendants are doing this to force Plaintiffs to comply with their unreasonable demands. Plaintiffs have refused to comply and as a proximate result have not been paid the reasonable value of its services. Additionally, Plaintiffs have not been paid by Defendant United for thousands of level 5 as previously alleged. This is an ongoing problem as Plaintiffs continue to treat Defendants’ members who come to the emergency room and Defendants continue to refuse to pay Plaintiffs promptly and properly.’ (FAC, ¶ 81.)

“As quoted above, plaintiffs allege that defendants are refusing to pay in order to force plaintiffs to comply with their unreasonable demands, but the plaintiffs have refused to comply. Plaintiffs are not alleging that they have been forced by economic duress to accept less than the amounts to which they are entitled and are now seeking to avoid the consequence of such acceptance, as, for example, the Rich plaintiff in seeking to obtain the full amount owed notwithstanding settlement and release agreements ostensibly limiting the amount owed. In other words, plaintiffs allege that defendants’ duress has been unsuccessful in causing damage to plaintiffs and that plaintiffs are simply owed the full amount to which they are entitled under the Knox-Keene Act. That claim for recovery is already asserted under a number of legal theories as discussed above. The demurrer to this cause of action will be sustained.” (Minute Order, filed Oct. 4, 2024, at pp. 12-16.)

United argues that plaintiffs have still not adequately alleged a cause of action for economic duress and have merely added insufficient conclusory language. Plaintiffs argue that they have added sufficient allegations to state this claim:

“Despite Defendants’ knowledge of their statutory obligations to promptly pay Plaintiffs the reasonable value of their services and the public policy basis for those obligations i.e., to protect the health care safety net Defendants refuse to pay the reasonable value of its services. Defendant United also refuses pay any amount for level 5 services admittedly rendered to its members or provide Plaintiffs with the information necessary to bill members for Member Charges. Defendants take these actions to extort concessions from Plaintiffs and force them to accept less than the reasonable value of its services and in United’s case to force Plaintiffs to down code their own legitimate level 5 claims.” (SAC, ¶ 87.)

“Plaintiffs have refused to reduce the reasonable values shown on their claims. However, Plaintiffs have been forced to accept Defendants’ underpayments because they cannot afford to do otherwise given that these three Defendants are three of the biggest Health plans in the country and send thousands of members to Plaintiffs’ emergency rooms Plaintiffs seek to recover the difference between the reasonable value of their service and the unreasonable amount paid by Defendants and accepted under duress.” (SAC, ¶ 91.)

“Defendant United and Does 1 through 5 have refused to pay any amount at all for many of Plaintiffs’ level 5 claims to force Plaintiffs to submit claims at a lower level than justified by the services rendered or get paid nothing. Plaintiffs have refused to do so and continue to bill level 5 services appropriately. United knows Plaintiffs can either refuse to treat or bill United’s members and is using this to extort concessions from Plaintiffs. Resisting such extortion is costing Plaintiffs millions of dollars but they have no choice.” (SAC, ¶ 92.)

Plaintiffs focus upon the fact that they were forced to accept underpayments because plaintiffs could not afford to reject those payments. (SAC, ¶ 7; Opposition, at pp. 18-19.) This focus does not address the principal problem with this cause of action. The focus, as discussed in CrossTalk, supra, instead needs to be on the coercion. This element is most easily illustrated by considering the analogy to a cause of action for fraud. (See Fuhrman, supra, 179 Cal.App.3d at p. 426 [“It is essentially a cause of action for moneys obtained by duress, a form of fraud.”].)

“ ‘The causation aspect of actions for damage for fraud and deceit involves three distinct elements: (1) actual reliance, (2) damage resulting from such reliance, and (3) right to rely or justifiable reliance.’ [Citation.]” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062.) “ ‘Deception without resulting loss is not actionable fraud.’ [Citation.]” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 65.) “If the defrauded plaintiff would have suffered the alleged damage even in the absence of the fraudulent inducement, causation cannot be alleged and a fraud cause of action cannot be sustained. [Citation.]” (Beckwith v. Dahl, supra, at p. 1064.)

Applying these principles to a cause of action for economic duress, if the plaintiff would have suffered the alleged damage even in the absence of the coercion, there is no causation and a cause of action based upon economic duress cannot be stated. What plaintiffs allege here is that they “accepted” the partial payment because they had no financial choice. By “accept,” however, plaintiffs merely mean that they collected the money; there is no allegation that plaintiffs were compelled to “accept” the payment as the full and final payment on the obligation. While plaintiffs alleged that United is “using this to extort concessions from Plaintiffs” (SAC, ¶ 92), plaintiffs allege no concessions that they made as a result of this coercion.

By analogy to contract payments: “In case of a dispute over total money due on a contract and it is conceded by the parties that part of the money is due, the debtor may pay, without condition, the amount conceded to be due, leaving to the other party all remedies to which he might otherwise be entitled as to any balance claimed. [¶] If any conditions are attached to the payment, this section shall not be deemed to have limited the remedies available to the other party under other provisions of law on the original amount claimed.” (Civ. Code, § 1525.) Consequently, plaintiffs’ transactional choice is not a binary choice to accept the underpayment or reject the entire payment. Plaintiffs may accept (i.e., collect) the underpayment and still assert their rights to the balance.

Plaintiffs’ argument is essentially that underpayment of a legally required amount is a tort when the creditor is in a financial condition to need the payment when offered. Even assuming, as is proper on demurrer, the truth of allegations that United knew the full amount of its obligations under the Knox-Keene Act and intentionally failed to make such payments, refusal to pay, by itself, is not a basis for an action for economic duress. Plaintiffs must allege they have done, or not done, something different had there been no coercion, that is, that the coercion caused damage different from mere underpayment.

The demurrer will be sustained to this cause of action. Plaintiff have argued only that they suffered economic duress based upon the actions alleged in the SAC. Plaintiffs do not argue that there are facts not already pleaded in the SAC upon which the cause of action for economic duress can be based. The demurrer will therefore be sustained without leave to amend as to this cause of action.

            (E)       Uncertainty

United also demurs to the third, fourth, and sixth causes of action on the grounds of uncertainty as to the claim for reimbursement plaintiffs allege were not paid or underpaid.

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc., supra, 14 Cal.App.4th at p. 616.)

This ground for demurrer is not supported by discussion in the memorandum in support of the demurrer and is therefore waived. (See Cal. Rules of Court, rule 3.1113(a).) In any event, the details of specific claims for reimbursement need not be alleged; that is a proper matter for discovery. The demurrer for uncertainty will be overruled.