Cal. Consumer Health Care Council v. Aetna Health

Filed 7/22/08 Cal. Consumer Health Care Council v. Aetna Health CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment (order of dismissal) of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Affirmed.

Cheong, Denove, Rowell & Bennett and John D. Rowell for Plaintiff and Appellant.

Paglia Law Offices and Antoinette D. Paglia; Gibson, Dunn & Crutcher and Kirk A. Patrick for Defendants and Respondents.

INTRODUCTION

Health and Safety Code section 1363.1 mandates the provider of health care service plans to disclose on its enrollment form any requirement to submit disputes to binding arbitration. In this case, plaintiff California Consumer Health Care Council brought suit against several providers of health care service plans for violation of the Unfair Competition Law (UCL). Plaintiff alleged that although defendants enrollment forms did not disclose that defendants required plan members to submit disputes to binding arbitration, defendants were nonetheless misrepresenting to claimants that they must arbitrate their disputes.

After plaintiff filed its action, Proposition 64 changed the standing requirements for bringing an UCL action. Proceedings in this case were stayed pending appellate resolution of Proposition 64s application to a pending lawsuit such as plaintiffs. After the California Supreme Court held that the new law did apply to pending actions and that a plaintiff should be given an opportunity to move for leave to file an amended complaint to conform to the new law, the parties agreed that plaintiff would seek leave to file a first amended complaint. The trial court ultimately denied plaintiffs motion, finding multiple incurable defects in the proposed amended complaint.

Thereafter, plaintiff, for the first time, urged that Code of Civil Procedure section 472 (section 472) gave it an absolute right to file an amended pleading. The trial court implicitly rejected that argument and, in an effort to resolve the case and give the plaintiff an appealable order, proposed to treat its earlier ruling denying leave to file an amended pleading as the functional equivalent of an order sustaining without leave to amend a demurrer to the proffered pleading. Defendants agreed to that procedure and plaintiff raised no objection to it. The court entered an order of dismissal, from which plaintiff now appeals.

Plaintiffs primary contention is that section 472 gave it the unqualified right to file an amended pleading. We disagree. We conclude that the section does not apply to this case; and, even if it did, plaintiff forfeited any right conferred by the statute when it agreed to proceed by way of motion seeking leave to file an amended complaint; and that, in any event, plaintiff has not been prejudiced because it has failed to establish even on this appeal how a further amended pleading could cure the multiple defects the trial court had identified in its proposed amended complaint. Secondarily, plaintiff contends that it was denied due process when the trial court re-characterized its earlier ruling denying leave to amend as sustaining a demurrer without leave to amend. We conclude that plaintiff has forfeited any claim of error about that procedure because it failed to pose any objection when the trial court proposed that course of action. We therefore affirm the judgment (order of dismissal).

FACTUAL AND PROCEDURAL BACKGROUND

1. The Original Complaint

On August 10, 2004, plaintiff filed its complaint as a Private Attorney and on behalf of the general public against related defendants[1]who sell health care service plans. Plaintiff described itself as a grassroots, volunteer-governed and operated public benefit corporation concerned with protecting the interests of health care consumers. It brought the lawsuit on behalf of members of defendants plan. Its theory was that defendants were in violation of the UCL. (Bus. & Prof. Code, 17200 et seq.)

The complaint alleged that, in violation of Health and Safety Code section 1363.1, defendants enrollment forms failed to contain any mention of or reference to submitting disputes to binding arbitration. Citing decisional law, plaintiff alleged that failure meant defendants had no right to compel arbitration of claims brought by its members. Plaintiff alleged that notwithstanding that deficiency, defendants have falsely represented to their members that said members are bound by an arbitration provision and required to arbitrate disputes. According to plaintiff, this misrepresentation is included in defendants Evidence of Coverage forms, Disclosure forms, newsletters as well as other written materials. Plaintiff alleged this conduct was misleading, deceptive, unfair and fraudulent within the meaning of Business and Professions Code section 17200. Plaintiff sought equitable relief to enjoin defendants from falsely representing to their members that they are bound by arbitration and to direct defendants to notify its plan members that they are not bound by arbitration. Plaintiff also sought the recovery of attorneys fees (Code Civ. Proc.,  1021.5).

2. Proposition 64 is Enacted

On November 2, 2004, the electorate approved Proposition 64, which took effect the next day. Proposition 64 amended two sections of the Business and Professions Code to change the requirement of standing to bring an action under the UCL. Before, standing did not depend upon the plaintiff establishing injury or damage. Business and Professions Code section 17204, as amended, now requires the plaintiff to have suffered injury in fact and [have] lost money or property as a result of the unfair competition. In addition, Proposition 64 amended Business and Professions Code section 17203 which authorizes courts to enjoin unfair competition, by adding the following qualification: Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure. (Italics added.)

On November 22, 2004, defendants filed a demurrer, raising two grounds. The first was that under recently enacted Proposition 64, plaintiff lacked standing to prosecute the claim. The second was that the action was an improper attempt to privately enforce Health and Safety Code section 1363.1.

3. Trial Court Proceedings Are Stayed

On January 6, 2005, before the scheduled date for the hearing on defendants demurrer, the parties filed a stipulation to stay all proceedings in the case. The stipulation recited that the complaint did not allege that the plaintiff suffered any injury in fact as a result of the [defendants] conduct. Consequently, the parties agreed that in the interest of judicial economy and to avoid possible unnecessary expenses . . . that the Demurrer be put over pending appellate resolution of Proposition 64s application to pending cases. Thereafter, the parties filed joint reports with the trial court setting forth the status of the appellate litigation.

4. The California Supreme Court Interprets Proposition 64

In July 2006, the California Supreme Court held that the provision of Proposition 64 requiring a plaintiff who seeks relief under the UCL to have suffered actual injury applied to all pending cases. (Californians for Disability Rights v. Mervyns, LLC (2006) 39 Cal.4th 223.) In a companion case, the court held that a plaintiff in a pending case could seek leave to file an amended complaint to substitute in or add a party to satisfy Proposition 64s new standing requirements. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235 (Branick).) The Supreme Court held that the trial court should decide the motion by applying the established rules governing leave to amend set forth in section 473 of the Code of Civil Procedure. (Id. at p. 239.)

On October 11, 2006, the parties filed a joint report in the trial court about the Supreme Courts decisions. The report advised that plaintiff would seek leave to amend to add one or more plaintiffs to meet the new standing requirement. The parties therefore asked the trial court to lift the stay and set a deadline for plaintiff to file a motion for leave to amend. If the court denied the motion, they requested the court to set a hearing on the demurrer and to permit both parties to file briefs discussing the two recent decisions from the California Supreme Court.

5. Trial Court Proceedings Resume

On October 25, 2006, the trial court issued a minute order reading: The Court lifts its stay of this matter. [] The matter is set for hearing on a motion to amend the complaint on 12/1/06 at 8:30 a.m. in this department. Moving party [here, plaintiff] to comply with California Rules of Court [rule] 327.[[2]] [] Should the motion to amend be denied, the Court will discuss with counsel at that time its proposed further course of action.

On November 30, 2006, plaintiff attempted to file an amended complaint. The trial court declined to accept the filing. The next day, the court took the matter off of the December 1 calendar and instructed plaintiff to file a motion for leave to file an amended pleading.

6. Plaintiff Seeks Leave to File An Amended Pleading

On December 20, 2006, plaintiff filed a motion for leave to file a first amended complaint to add an additional plaintiff: Gustav Metkowski. The new pleading alleged that Gustav Metkowski was a member of defendants plans; that defendants falsely told him that he was required to arbitrate all disputes with them; that he reasonably believed those misrepresentations; that when a dispute arose and after being told . . . that he had no right to a jury trial and that his dispute would have to be arbitrated, acted to resolve the dispute in the context of the loss of his right to a jury trial. As a result, Gustav Metkowski suffered (unspecified) actual damage. The proposed pleading also included the allegation that the action was brought on behalf of the general public pursuant to Business and Professions Code section 17200 et seq. Although various exhibits were attached to the proposed pleading, none was related to Gustav Metkowskis enrollment in defendants plans or his allegation that he was forced to arbitrate his dispute.

On December 22, 2006, defendants filed a Case Management Statement. In regard to the pleadings, defendants explained: A Demurrer was filed in [November 2004] to the original complaint. That Demurrer was never heard because the parties and the Court agreed to stay the matter until the California Supreme Court ruled on the applicability of Proposition 64 to existing UCL cases. Should the Motion for Leave to Amend [filed on December 20] be denied, [defendants] request that their original Demurrer be placed back on the Courts calendar and heard. However, if the Motion for Leave to Amend is granted, [defendants] anticipate filing another Demurrer to the First Amended Complaint.

Subsequently, defendants filed opposition to the motion for leave to amend. They argued that plaintiffs proposed allegations about Gustav Metkowski failed to establish standing for two reasons. The first reason was that he had, in fact, been properly informed that any dispute would be submitted to binding arbitration for resolution. In that regard, defendants produced copies of the forms Gustav Metkowski had signed first when he enrolled in the health plan and later when he elected to continue coverage through COBRA.[3] The second reason was that Gustav Metkowski had never submitted a claim to arbitration. In that regard, a declaration from one of defendants employees established that Gustav Metkowski had included his wife Urzula Metkowski as a dependent in the plan; that Urzula Metkowski subsequently had a dispute with defendants about coverage of a claim; that Urzula Metkowski filed a request for arbitration with the American Arbitration Association (AAA); that AAA sent her a letter stating it would conduct arbitration only if she signed a letter agreeing to that procedure; that Urzula Metkowski signed off on the AAA request; and that the arbitration was resolved in defendants favor but, pursuant to Urzula Metkowskis request, defendants bore her share of the arbitration costs.

Significantly, Plaintiffs reply to the defense opposition did not challenge the authenticity of the two enrollment forms which established that Gustav Metkowski had been informed that any dispute would be resolved by binding arbitration and did not argue that the arbitration disclosure in those two forms failed to meet the requirements of Health and Safety Code section 1363.1. Nor did plaintiff challenge the fact that it was Urzula Metkowski, not Gustav Metkowski, who had participated in arbitration. On the latter issue, plaintiff simply offered a declaration from Gustav Metkowski explaining that Urzula Metkowski had died and that he was bringing this claim on her behalf. To establish financial injury, Gustav Metkowski averred that he had paid fees in order to conduct the arbitration [of his wifes dispute]. He further averred that his wife had had him handle her claim and that he was told by [defendants] . . . that the only remedy [he] had was to arbitrate the claim. He concluded: I was misled by conduct which is just the sort of conduct expressly alleged in the original and proposed amended complaint. Plaintiffs reply concluded by urging that the defense arguments were more properly left to resolution by demurrer, summary judgment or trial. Contrary to what plaintiffs attorney suggested at argument on this appeal, the trial court did consider the evidentiary matter tendered in the reply.[4]

Following an unreported hearing conducted on January 17, 2007, the trial court denied plaintiffs motion for leave to file an amended complaint. The court filed a four-page ruling explaining its decision. After carefully examining the proposed first amended complaint and its attachments as well as the documents proffered by defendants in support of their opposition, the trial court concluded that the new pleading failed to meet the standing requirements enacted by Proposition 64 and that plaintiff would not be able to cure that defect even given further leave to amend. In particular, the court explained: The alleged grievance of [Gustav] Metkowski seems separate from the gravamen of Plaintiffs complaints, which is a violation of Bus. & Prof. Code 17200 et seq. specifically caused by failure to include disclosures required by Cal. Health & Safety Code 1363.1 (where the contract contains a binding arbitration clause, it must be prominently displayed in a certain part of the writing). The FAC contains extensive allegations and argument that certain Aetna agreements were non-compliant, but there is no allegation that the agreements [Gustav] Metkowski was party to were similarly non-compliant, and no attachment of this agreement. Without this, the FAC does not allege, nor does Plaintiffs reply explain, what independent basis there is for [Gustav] Metkowski to assert a claim. [] . . . [Defendants opposition] attaches copies of the agreement between themselves and [Gustav] Metkowski, which contain the arbitration provision in the required place, in compliance with the Health and Safety Code.[5] (Italics added.) The courts minute order concluded by setting a status conference [i]n view of the discussion at the close of argument with respect to disposition of this matter.

7. Proceedings Following the Trial Courts Denial of Plaintiffs Motion for

Leave to File an Amended Complaint

Thereafter, the parties filed separate status reports. Plaintiff indicated that it believed it had an absolute right to file a first amended complaint. Plaintiff relied on section 472, a provision it had not previously cited to the court. The statute provides, in relevant part: Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue on law thereon, by filing the same as amended and serving a copy on the adverse party. Plaintiff explained that before filing an amended pleading pursuant to section 472, it desired to bring [the] statute and issue to the courts attention. It is not plaintiff counsels intention or desire to contravene any court order in this case. If the court intended, by its ruling of January 18, 2007 [denying plaintiffs request for leave to file an amended pleading] to deny plaintiff recourse to [section] 472, then plaintiff will of course, not attempt to file pursuant to that statute. [] At the suggestion of [defendants counsel], the parties agreed to raise the issue with the Court at the Status Conference. Plaintiff did not attach a copy of the pleading it sought to file pursuant to section 472 and did not explain how such a pleading would overcome any of the many deficiencies that the trial court had found when it denied the motion for leave to file an amended pleading.

Defendants status report rejected plaintiffs reliance on section 472. It reasoned that whatever right plaintiff may have had under section 472, it had given up that right when, in the October 2006 joint status report, it agreed to file a motion for leave to file an amended pleading to conform to the California Supreme Courts recent decisions. Consequently, defendants urged that because the trial court had denied plaintiff leave to file a first amended complaint, the pending pleading was the original complaint; that its demurrer to that pleading should be sustained without leave to amend; and the case should then be dismissed. Defendants argued that [p]laintiff should not be permitted a do over through the guise of filing another pleading.

On March 9, 2007, the trial court conducted a reported status conference. The court pointed out that after Branick had been decided, the parties had agreed plaintiff would file a motion for leave to file an amended complaint and that said motion had been brought and denied. Plaintiffs counsel responded that it was only after the trial court had denied that motion that he remembered [section] 472 provides an absolute right to file an amended pleading if no answer has been filed. Although plaintiffs counsel stated that he could state a cause of action, he made no offer as to any new allegations. He explained that he was uncertain whether the trial courts order precluded him from filing another pleading in reliance upon section 472. He concluded: If youre ruling that I cant do a 472, thats fine. The court replied: Why dont we deem the denial of the motion to amend as being the functional equivalent of the sustaining of the demurrer without leave to amend so that a dismissal falls thereon and [plaintiff] can appeal from that. Is that fair enough? Defense counsel agreed to that procedure[6]and plaintiffs counsel raised no objection to it.

On March 15, 2007, the trial court entered its order of dismissal. The order recited that at the March 9 status conference, the court had heard argument concerning whether plaintiff had a right, pursuant to [section] 472, to file an Amended Complaint as a matter of right. Following argument the Court held that its January 18, 2007 ruling was the functional equivalent of the filing, pursuant to [section] 472, of the First Amended Complaint and the sustaining demurrer thereto, without leave to amend, and it was appropriate to enter a dismissal on that basis.

This appeal by plaintiff followed.

DISCUSSION

1. Application of Section 472

Plaintiffs premise that section 472 includes the right to file an amendment adding a new party as plaintiff is correct. (Gross v. Department of Transportation (1986) 180 Cal.App.3d 1102 (Gross).) However, given the particular procedural posture of this case, plaintiff errs in claiming that section 472 gives it the absolute right to file an amended pleading.

Here, the pertinent chronology is the following. Plaintiff filed its complaint. The electorate enacted Proposition 64. Defendants filed a demurrer based on Proposition 64. The parties agreed to stay trial court proceedings pending appellate resolution of the application of Proposition 64 to pending cases. After Branick held that a plaintiff could move for leave to file an amended complaint to conform to the new standing requirements enacted by Proposition 64, the parties agreed that plaintiff would file such a motion. Plaintiff did so, with defendants filing opposition to the request. In ruling upon a motion for leave to file an amended pleading, the trial court has the discretion to deny the request when the pleading is deficient as a matter of law and the defect cannot be cured by further amendment. (Yee v. Mobilehome Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1428-1429; Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231; California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281.) Here, the trial court, in a detailed ruling the merits which plaintiff does not seriously challenge on appeal,[7]denied plaintiffs motion for leave to file the new pleading. It found the proposed pleading to be deficient and incapable of amendment that would cure the deficiency. It was only after the trial court had rendered that ruling that plaintiff claimed that section 472 gave it the absolute right to file an amended pleading.

In light of the above chronology, plaintiffs position is at odds with the rationale behind section 472. As one leading practice guide has explained: Each party has the right to amend its pleadings oncewithout leave of courtwithin a brief time after its original pleading is filed. The purpose is to facilitate prompt correction of errors or deficiencies in the original pleading. [] . . . [] This enables plaintiff to concede any error or objection to the complaint raised by the defendant, or otherwise discovered, and immediately draft and file an amended complaint. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) 6:603, p. 6-153.) Here, plaintiff has already had one opportunity to correct the error raised by defendants (lack of standing) but simply failed to proffer an adequate pleading. Section 472 should not be interpreted to give plaintiff the absolute right to try again.

Furthermore, plaintiffs reliance upon section 472 conflicts with the limitations contained in the statute itself. Section 472, by its terms, expressly applies to amendments made to the pleadings before the filing of responsive pleadings. . . . The only limitations expressed in section 472 are that the amendment be made before the answer or demurrer is filed, or after the demurrer but before it is heard. (Gross, supra, 180 Cal.App.3d at p. 1105, italics added.) After the responsive pleadings are filed an amendment to a complaint . . . requires leave of court. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 175.) In this matter, the trial courts detailed ruling denying plaintiffs motion for leave to amend indicates that it effectively treated defendants opposition as the equivalent of a demurrer to the proposed pleading. Hence, because there was the functional equivalent of a ruling upon a demurrer, the time had passed for plaintiff to rely upon section 472.

In any event, to the extent section 472 had at some time applied to this proceeding, plaintiff forfeited any right to rely upon that statute. After Branick was decided, the parties agreed that, in conformity with that decision, plaintiff would seek leave to file an amended pleading. That procedure necessarily entailed plaintiffs acquiescence to the principle that the trial court has the discretion to grant or deny a request to file an amended pleading.[8] Having submitted to that procedure, plaintiff cannot, after losing its motion, suddenly invoke section 472 to claim an absolute right to file an amended pleading. If plaintiff believed section 472 gave it an unqualified right to file an amended pleadinga course of action neither contemplated nor condoned by Branickplaintiff should have relied upon section 472 when the trial court first lifted the stay after Branick had been decided and filed a pleading on that basis. It did not do so and therefore was estopped from subsequently relying upon section 472 to file another pleading. (See Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686 [[W]here a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error].)

Lastly, plaintiff cannot show prejudice from the trial courts rejection of its reliance upon section 472. It is plaintiffs burden to show how a further amended pleading could cure the defects in the pleading rejected by the trial court. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Plaintiff has not done so. The crux of plaintiffs claim is that defendants enrollment forms fail to comply with the disclosure requirements of Health and Safety Code section 1363.1. But defendants proffered two forms signed by Gustav Metkowski, each of which included the required disclosure. Plaintiff did not challenge the authenticity of the two forms or the adequacy of the disclosure contained in them. The trial court noted this fatal deficiency in denying the motion for leave to file an amended complaint. Nonetheless, when plaintiff subsequently raised section 472 in the trial court, first in its status report and then at the March 9, 2007 hearing, it made no offer of proof as to how another pleading would overcome that or any of the other deficiencies identified by the trial court at the January 17, 2007 hearing. Although plaintiffs appellate briefs include multiple references to its desire to file an amended pleading, those briefs make no showing as to how such a pleading would cure any of the inadequacies in its proffered (but rejected) first amended pleading. (See fn. 5, ante.) And at oral argument on this appeal, plaintiff still was unable to identify with any specificity what an amended pleading would allege.

2. The Trial Court Did Not Deny Plaintiff Due Process

Plaintiff also contends that the trial courts ruling at the March 9, 2007 status conference denied it due process because the parties had not agreed to convert [the hearing into one] on a demurrer either to the original complaint or to an amended complaint. This contention misconstrues what actually happened.

On January 18, 2007, the trial court denied plaintiffs motion for leave to file an amended pleading. Thereafter, the parties filed separate reports for the upcoming status conference, the purpose of which was to determine how to proceed in the case. For the first time, plaintiff raised section 472 and sought a ruling from the trial court as to its applicability. The defense status report disagreed with plaintiffs reliance on section 472 and asked the trial court to sustain without leave to amend its demurrer to the original complaint (the only pending pleading) and to dismiss the case.

At the status conference, plaintiff reiterated that it was asking the court to rule whether section 472 applied. The trial court never directly addressed that issue at the hearing.[9] Instead, it proposed to deem its earlier ruling denying leave to amend the equivalent of an order sustaining without leave to amend a demurrer to the proposed pleading.[10] In that way, a judgment of dismissal could be entered and plaintiff could seek appellate review on the merits of the trial courts earlier ruling. The court asked the parties if they agreed to that procedure. Defense counsel stated he did. (See fn. 6, ante.) Plaintiff raised no objection to this proposed procedure. This record refutes plaintiffs appellate claim that the trial court failed to allow [plaintiff] to brief the issue or even allow reasonable opportunity to marshal [its] thoughts and arguments. Plaintiff was given the opportunity to respond but simply failed to avail itself of that opportunity.

Plaintiffs failure to object triggers the well-settled principle that a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Here, plaintiffs failure to object to the procedure or to propose a different course of action constitutes a forfeiture of its right to complain about it for the first time on appeal. This also includes a forfeiture of its right to complain that the trial courts decision to convert the opposition to the motion for leave to amend to a demurrer was error because its ruling [denying that motion] was based upon a [disputed] factual presentation.

DISPOSITION

The judgment (order of dismissal) is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. SUZUKAWA, J.

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[1] Defendants are Aetna Health of California, Inc., formally known as Aetna U.S. Healthcare of California, Inc., Aetna U.S. Health Care, Inc., Aetna, Inc., and Aetna Health Plans of California, Inc.

[2] Former California Rules of Court rule 327, now renumbered as rule 3.1324, sets forth the procedure to follow in filing a motion to amend a pleading.

[3] Each reads: Arbitration: Any dispute arising from or related to Health Plan membership will be determined by submission to binding arbitration, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. This agreement to arbitrate includes, but is not limited to, disputes involving alleged professional liability or medical malpractice, that is, whether any medical service covered by the Agreement were unnecessary were unauthorized or were improperly negligent or incompetently rendered. The Health Plan agreement also limits certain remedies and precludes the award of punitive damages. See the Evidence of Coverage for further information.

I understand that I am giving up the constitutional right to have disputes decided in a court of law before a jury, and instead am accepting the use of binding arbitration. This means that members will not be able to try their case in court. I further understand that the agreement contains limitations on certain remedies and that members cannot recover punitive damages.

Gustav Metkowskis signature appears immediately after the two paragraphs set forth above.

[4] The trial courts minute order stated that although plaintiffs reply had been filed two days late, the court would, in an exercise of its discretion, consider the reply.

[5] The trial court noted other reasons why the proposed pleading would be subject to demurrer such as: (1) the allegations that Gustav Metkowski had been forced to arbitrate were vague and unsupported; (2) there were no clear allegations that Gustav Metkowski had been deprived of money or property as a result of the arbitration; and (3) the pleadings failure to allege that Gustav Metkowski was a member of plaintiff so that it could bring suit on his behalf (Code Civ. Proc., 382). The court concluded that because plaintiffs reply to defendants opposition failed to offer any facts or evidence to refute defendants showing that Gustav Metkowski lacked standing, plaintiff would be unable to state a claim with [Gustav] Metkowski as its person who has been injured in fact even were it given further leave to amend.

[6] Defense counsel stated: Thats fair enough. All we were looking for was the mechanism to get the dismissal. Hes entitled to appeal, obviously, but he cant appeal till we have a dismissal.

[7] Plaintiffs opening brief states that one issue on appeal is whether the trial court abused its discretion in denying the motion for leave to file an amended complaint. However, neither the opening brief nor reply brief contains any analysis or argument about that issue. It is not our responsibility to develop plaintiffs argument for it. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) Plaintiffs deficient presentation constitutes a forfeiture of its right to seek appellate review of the trial courts ruling denying leave to file an amended complaint. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)

[8] Contrary to plaintiffs unsupported assertion, there is no requirement that a waiver be express. It can be implied from the circumstances. (See, e.g., Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743, and Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 856-857.)

[9] The subsequent order of dismissal did address section 472. It explained that the court construed its earlier ruling on January 18, 2007 as permitting a filing pursuant to section 472 of the first amended complaint, following which a demurrer to it was sustained without leave to amend.

[10] Plaintiffs appellate claim that defense counsel proposed this procedure is not correct.