NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 29 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

IV SOLUTIONS, INC.,                             No.    18-55613

                Plaintiff-Appellant,            D.C. No.
                                                2:17-cv-05615-ODW-SK
 v.

EMPIRE HEALTHCHOICE                             MEMORANDUM*
ASSURANCE, INC., DBA Empire Blue
Cross Blue Shield,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                      Argued and Submitted January 8, 2020
                              Pasadena, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District
Judge.

      IV Solutions, Inc. (“IVS”) appeals the district court’s order dismissing its

breach of contract claim with prejudice on statute of limitations grounds. We have



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s dismissal of the

breach of contract claim, but we reverse its denial of leave to amend and therefore

remand with instructions to grant IVS leave to amend. We affirm the district

court’s rejection of the doctrines of equitable tolling and equitable estoppel.

      We review a district court’s dismissal on statute of limitations grounds de

novo, “accepting all factual allegations in the complaint as true and drawing all

reasonable inferences in favor of the nonmoving party.” Gregg v. Hawaii, Dep’t of

Pub. Safety, 

, 886–87 (9th Cir. 2017) (internal quotation marks

omitted) (quoting TwoRivers v. Lewis, 

, 991 (9th Cir. 1999)). De

novo review also applies to “a decision granting a motion to dismiss with

prejudice, i.e., without leave to amend.” Schmier v. U.S. Court of Appeals for

Ninth Circuit, 

, 824 (9th Cir. 2002). “The district court’s decision

regarding equitable tolling is ‘generally reviewed for an abuse of discretion, unless

the facts are undisputed, in which event the legal question is reviewed de novo.’”

Hensley v. United States, 

, 1056 (9th Cir. 2008) (quoting Santa

Maria v. Pac. Bell, 

, 1175 (9th Cir. 2000), overruled on other

grounds by Socop-Gonzalez v. INS, 

(9th Cir. 2001) (en banc)). And

we review a district court’s decision on equitable estoppel for an abuse of

discretion. See O’Donnell v. Vencor Inc., 

, 1109 (9th Cir. 2006) (per

curiam).


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      Drawing all reasonable inferences in favor of IVS, the complaint sufficiently

alleges that the breach of contract claim is founded upon a written instrument.

Thus, the district court correctly determined that IVS’s breach of contract claim is

subject to a four-year statute of limitations. See Cal. Civ. Proc. Code § 337. The

district court also correctly concluded that, based on the allegations in the

complaint, IVS’s breach of contract claim is barred by the statute of limitations.

      The parties’ contract didn’t specify a time for Empire HealthChoice

Assurance, Inc.’s (“Empire’s”) performance, so the parties agree that California

Civil Code section 1657 determines when Empire needed to perform, and in turn

when the statute of limitations started running. Section 1657 specifies that a party

must generally perform within a reasonable time, but if the party’s act can be

“done instantly--as, for example, if it consists in the payment of money only--it

must be performed immediately upon the thing to be done being exactly

ascertained.” Cal. Civ. Code § 1657.

      Though the district court relied exclusively on the reasonable time provision

in section 1657—an issue the parties did not brief—we conclude that IVS’s claim

is untimely under either the reasonable time provision or the immediate payment

provision, given the allegations pleaded in the complaint.

      Applying the immediate payment provision under section 1657, we can

reasonably infer from the complaint that Empire’s obligation to pay was


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ascertainable by October 4, 2012, at the latest, because the alleged agreement

provided that Empire would pay “IVS’s billed charges.” So Empire was required

to immediately pay at that time under section 1657. Empire’s failure to pay on that

date was a breach, and the statute of limitations started running. See Cochran v.

Cochran, 

, 340 (Ct. App. 1997). Thus, as pleaded, IVS’s

breach of contract claim brought in June 2017 was barred by the statute of

limitations.

      Likewise, for IVS’s claim to be timely under the reasonable time period

approach, the breach must have occurred, at the earliest, on June 23, 2013, four

years before IVS filed its complaint. At that time, over nine months had passed

since IVS provided its last treatment. IVS’s complaint does not allege any facts

that would make Empire’s failure to pay reasonable by that point in time.

      While either approach supports the district court’s conclusion, the district

court should have allowed IVS to amend its complaint. Empire argues that leave

to amend is improper because it would be clearly futile. We disagree.

      “Dismissal without leave to amend is improper unless it is clear, upon de

novo review, that the complaint could not be saved by any amendment.” Polich v.

Burlington N., Inc., 

, 1472 (9th Cir. 1991). On the limited record, it

is not clear “beyond doubt that amendment of the complaint would be futile.” Ctr.

for Biological Diversity v. Veneman, 

, 1114 (9th Cir. 2005). IVS


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may be able to allege additional facts in an amended complaint that show, in the

health insurance context, its breach of contract claim is not barred by either

provision of section 1657.1 See, e.g., IV Solutions, Inc. v. Connecticut Gen. Life

Ins. Co., 

, at *11 (C.D. Cal. Jan. 29, 2015). IVS was denied

even one chance to amend its complaint, and it had no opportunity below to

address the district court’s basis for dismissal. Without oral argument, the district

court dismissed with prejudice IVS’s claim on a ground that Empire did not raise

and neither party briefed. Moreover, the district court offered no reason why IVS

should be denied leave to amend. We therefore remand to the district court with

instructions to grant IVS leave to amend.

      The district court properly determined that equitable tolling does not apply

based on IVS’s allegations. See Cervantes v. City of San Diego, 

, 1277

(9th Cir. 1993). The California Supreme Court “has applied equitable tolling in

carefully considered situations to prevent the unjust technical forfeiture of causes

of action, where the defendant would suffer no prejudice.” Lantzy v. Centex

Homes, 

, 523 (Cal. 2003). And “[i]n each prior instance, the brevity of

the literal limitations period would otherwise have caused forfeiture of a cause of




1
 We express no opinion on whether the proposed amendments in IVS’s briefs
would save its breach of contract claim.

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action, or other undue hardship, despite the plaintiff’s diligent efforts to pursue his

claim in a correct and orderly way.” 

      Here, the allegations do not support that an “unjust technical forfeiture”

would result absent equitable tolling. IVS had four years to bring its breach of

contract claim. And even after IVS received Empire’s unequivocal denial it still

had over two years to file a timely suit. Thus, the allegations fail to show that

equitable tolling possibly applies.

      We also affirm the district court’s rejection of equitable estoppel. Equitable

estoppel does not apply when the plaintiff has ample time to sue within the

statutory period after the conduct that has induced it to forbear suing ends. See,

e.g., Mills v. Forestex Co., 

, 298 (Ct. App. 2003). And in

California a little more than five weeks is sufficient time to file suit. See

Lobrovich v. Georgison, 

, 464 (Cal. Dist. Ct. App. 1956). Here, the

conduct that allegedly induced IVS to delay its suit ceased when Empire

unequivocally denied the claim in June 2014. At that time IVS still had over two

years to timely bring its suit, which was more than ample time.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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