WILLIAM H. ORRICK, District Judge.
On August 21, 2013, the Court heard argument on defendant's Motion to Dismiss and Motion to Strike. For the foregoing reasons, the Court GRANTS in part and DENIES in part both the Motion to Dismiss and the Motion to Strike.
Plaintiff ProTransport-1, LLC filed this complaint on behalf of itself, the United States, and the State of California against Kaiser Foundation Health Plan, Inc. Plaintiff asserts causes of action for violations of the False Claims Act ("FCA," 31 U.S.C. § 3729(a)(1)), violations of the California False Claims Act (Cal. Govt. Code § 12651(a)), violation of California Health and Safety Code § 1278.5, violations of California's Unfair Competition Law ("UCL," Cal. Bus. & Prof. Code § 17200), breach of the implied covenant of good faith and fair dealing, quantum meruit, and unjust enrichment/restitution. Docket No. 1. All of the claims stem from ProTransport's allegations that Kaiser refused to pay ProTransport for its services transporting Kaiser patients with End Stage Renal Disease (ESRD) to and from dialysis treatments and instead required ProTransport to seek reimbursement for its services from Medi-Cal. Complaint ¶¶ 34-39. ProTransport alleges that under the Medicare Act and its implementing regulations, Kaiser was required to pay ProTransport in the first instance, and that requiring plaintiff to seek reimbursement from Medi-Cal was improper and a fraud. Id. ProTransport also alleges that after its representatives complained to Kaiser about its practice, Kaiser retaliated against ProTransport by refusing to pay for any transports made by ProTransport and excluding ProTransport from bidding to provide future services to Kaiser. Id., ¶¶ 42-43, 46, 50-51. In March 2013, the United States and California declined to intervene in the action, and the Court on April 2, 2013 ordered the Complaint served on Kaiser. Docket No. 23.
Kaiser now moves to dismiss the Complaint and strike allegedly immaterial and improper references from the same. In response to the motion to dismiss, plaintiff agreed to dismiss seven out of the ten claims, and opposes dismissal of only the claim under the federal False Claims Act (31 U.S.C. § 3729(a)(1)(D)), violation of the anti-retaliation provision of California Government Code section 1278.5, and violation of the UCL. See Docket No.29 (Notice of Voluntary Dismissal of Claims); Plaintiff's Opposition at 1, 7.
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." See Twombly, 550 U.S. at 555, 570.
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
Plaintiff's FCA claim is brought under 31 U.S.C. section 3729(a)(1)(D) which provides for FCA liability when an entity or person "has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property." In the Complaint, plaintiff alleges that Kaiser violated this section of the FCA ("Reverse False Claims," Complaint at 14) by receiving and controlling money of the federal government and knowingly failing to deliver less than the full sum of that money "for the benefit of its patients," when it required ProTransport to seek payment from Medi-Cal. Complaint, ¶ 54. That conduct, ProTransport alleges, amounted to false or fraudulent claims incurred by the United States. Id. ¶ 55. In its Opposition, plaintiff argues that its FCA claim is a "implied false certification" claim, which arises when an entity has "obligated itself to complying with a law, rule or regulation" and that obligation is implicated by submitting a claim for payment. Oppo. Br. at 11 (quoting Ebeid v. Lungwitz, 616 F.3d 993 (9th Cir. 2010)).
As an initial matter, Kaiser argues that plaintiff's FCA claim is simply a disguised attempt to secure payment for its services, and as such, the case "arises under" the Medicare Act and must be dismissed for failure to exhaust Medicare's administrative procedures.
As the Ninth Circuit has noted: "the Supreme Court has identified two circumstances in which a claim `arises under' the Medicare Act: (1) where the `standing and the substantive basis for the presentation of the claims' is the Medicare Act . . . and (2) where the claims are `inextricably intertwined' with a claim for Medicare benefits." Uhm, 620 F.3d at 1141 (quoting Heckler, 466 U.S. at 614-15). The Ninth Circuit has also found another category of cases that "arise under" the Act, "those cases that are "`[c]leverly concealed claims for benefits.'"" Id. (quoting Kaiser v. Blue Cross, 347 F.3d 1107, 1112 (9th Cir. 2003)).
In support of its argument that its FCA claim does not "arise under" the Medicare Act, plaintiff relies primarily on United States v. Blue Cross & Blue Shield (In re ex rel Body), 156 F.3d 1098 (11th Cir. 1998) and United States v. Tenet Healthcare Corp., 343 F.Supp.2d 922, 928 (C.D. Cal. 2004). In Body, a former employee of the defendant brought a FCA action, asserting that defendant had fraudulently submitted inflated claims for reimbursement under Medicare. The Court noted that section 405(h) was intended to allow "the administrative process the first opportunity to resolve disputes over eligibility or the amount of benefits awarded under the Act" and prevent "beneficiaries and potential beneficiaries from evading administrative review by creatively styling their benefits and eligibility claims as constitutional or statutory challenges to Medicare statutes and regulations." Id. at 1103-04. The Court distinguished the FCA claim at issue there because actions "which do not seek payment from the government and could not be brought under section 405, are therefore not barred by subsection 405(h)." Id. at 1104. The Court concluded that because the standing and basis of the claim alleged was the FCA and not the Medicare Act — although the defendant's application of Medicare rules and regulations "clearly would be determinative of whether false claims were, in fact, submitted" — and because the plaintiff's suit could not go forward under the administrative review process, the action was not barred by section 405(h). Id. at 1105-06.
In Tenent, the United States sued healthcare providers seeking reimbursement of monies the government paid to the providers for Medicare services that were billed at higher-rates than appropriate. The Court found that the government's standing was rooted in the "False Claims Act and similar common law doctrine, which also provide the substantive basis for relief." Id. at 927. The Court concluded that:
Id. at 928.
As in Body and Tenent, here the FCA and not the Medicare Act provide both standing and the substantive basis for ProTransport's claim. While Kaiser argues that ProTransport could seek a determination of whether the transports at issue were covered by Medicare (and should have been paid for by Kaiser in the first instance) through the administrative claims resolution procedures,
Kaiser relies on Do Sung Uhm v. Humana, Inc., 620 F.3d 1134 (9th Cir. 2010). In that case the Ninth Circuit determined that breach of contract and unjust enrichment claims based on a plan's failure to provide prescription drug coverage despite plaintiffs' payment of premiums "arose under" the Medicare Act and were subject to administrative exhaustion. The fact that plaintiffs were not seeking coverage under the plan or reimbursement of lost benefits, but instead seeking breach of contract and unjust enrichment damages, did not alter the Court's conclusion because "at bottom" the plaintiffs were complaining about the denial of a benefit despite their payment of premiums. Id. at 1142-43. The Court found that the breach of contract claim was simply, "a backdoor attempt to enforce the Act's requirements and to secure a remedy for Humana's alleged failure to provide benefits." Id. at 1143. Finally, the Court noted that plaintiffs failed to allege any injury "that could not be remedied through the retroactive payment of Medicare drug benefits" and concluded that plaintiffs' "claim for benefits could have been remedied through the Act's administrative review process." Id. at 1144.
Here, as noted above, ProTransport was actually paid for the services it contends were covered by Medicare, albeit by Medi-Cal. Therefore, payments to ProTransport for services provided in the past are not at issue. Nor are payments that might be made in the future, as ProTransport was allegedly barred by Kaiser from bidding to provide future services. Complaint, ¶¶ 50-51. Moreover, the nature of the claim at issue — False Claims Act — is fundamentally different than the breach of contract and unjust enrichment claims at issue in Uhm. Here, there is no indication that the claims asserted on behalf of the United States — return of monies paid as premiums to Kaiser — could be addressed in the administrative process.
Defendant also relies on Kaiser v. Blue Cross, 347 F.3d 1107 (9th Cir. 2003). There, plaintiffs brought claims alleging violations of various Medicare regulations, the Administrative Procedure Act and the Fifth Amendment based on the Health Care Financing Agency's (now known as Centers for Medicare and Medicaid Services, CMS) issuance of various regulations and their cessation of payments to plaintiffs' business. The Court found that these claims "arose under" the Medicare Act, despite the fact that plaintiff's sought damages beyond the reimbursement of payments available under Medicare because plaintiffs' claims were "inextricably intertwined" with the reimbursement claims of their former business. The FAC claim asserted here stands on different footing because it does not seek recovery for ProTransport's damages.
Kaiser also points out that unlike Tenet, here plaintiff is clearly a "dissatisfied" provider, and that the Court in Body distinguished the FCA claims at issue there from "veiled claims for benefits by a disgruntled beneficiary that could have, and should have, been pursued administratively in the first instance." 156 F.3d at 1109. There is no dispute in this case that ProTransport was a "provider" and is "disgruntled" by Kaiser's conduct. However, under the three claims left in the case, ProTransport is not seeking payment for its Medicare-related transportation services. Indeed, in its Complaint, ProTransport alleges that it was reimbursed for its transports by Medi-Cal (reimbursement it sought only under Kaiser's direction). See Complaint ¶¶ 6, 39 (noting "Medi-Cal approved for payment" ProTransport's claims for transportation). Similarly, ProTransport is not arguing that Kaiser's direction to seek payment from Medi-Cal resulted in lower payments to ProTransport — a claim which would need to be pursued through the administrative claims process. Instead, ProTransport is asserting a claim on behalf of the United States claiming Kaiser's conduct defrauded the government.
Similarly, the fact that the Medicare statute and regulations will need to be interpreted to determine whether Kaiser's conduct violated the FCA does not make this case "inextricable intertwined" with a claim for reimbursement or for benefits. But see Kaiser v. Blue Cross, 347 F.3d at 1114. Indeed, as the Eleventh Circuit noted in Body, 156 F.3d at 1109, "subsection 405(h), viewed within the context in which it was drafted and made applicable to Medicare, simply seeks to preserve the integrity of the administrative process Congress designed to deal with challenges to amounts determinations by dissatisfied beneficiaries, not to serve as a complete preclusion of all claims related to benefits determinations in general."
Kaiser asserted during oral argument that if this Court allows ProTransport's FCA claim to continue, it will open the "floodgates" for dissatisfied service providers to bring claims in court and avoid administrative exhaustion. However, FCA claims can only be alleged based on a particularized allegation of fraud to the United States and can only seek recovery on behalf of the United States; only that narrow class of plaintiffs will be able to proceed directly in federal court. Those who assert disguised claims for benefits or services — like ProTransport's breach of implied covenant and quantum meruit claims — will have to exhaust those claims in the first instance.
In conclusion, the Court finds that plaintiff's FCA cause of action is not a "disguised" claim for benefits nor it is "inextricably intertwined" with a claim for benefits and, therefore, does not "arise under" the Medicare Act.
Kaiser also argues that plaintiff's FCA claim must be dismissed because the Complaint fails to plead the FCA claim with particularity under Federal Rule of Civil Procedure 9(b). In Opposition, plaintiff clarifies that its theory of FCA liability under section 3729(a)(1)(D) is based on an "implied false certification." Opposition Br. at 11. In the Ninth Circuit, the four elements of a false certification claim are: "(1) a false statement or fraudulent course of conduct, (2) made with scienter, (3) that was material, causing (4) the government to pay out money or forfeit moneys due." U.S. ex rel Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1174 (9th Cir. 2006). A theory of implied false certification is "`based on the notion that the act of submitting a claim for reimbursement itself implies compliance with governing federal rules that are a precondition to payment.'" Ebeid v. Lungwitz, 616 F.3d 993, 996 (9th Cir. 2010) (quoting U.S. ex rel. Mikes v. Straus, 274 F.3d 687, 699 (2d Cir. 2001)). As the Ninth Circuit explained in Ebeid:
is a prerequisite to obtaining a government benefit." Id. at 998 (quoting U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir. 1996)).
Under Federal Rule of Civil Procedure 9(b), a party must "state with particularity the circumstances constituting fraud or mistake," including "the who, what, when, where, and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks omitted). As applied here, "[t]o survive a Rule 9(b) motion to dismiss, a complaint alleging implied false certification must plead with particularity allegations that provide a reasonable basis to infer that (1) the defendant explicitly undertook to comply with a law, rule or regulation that is implicated in submitting a claim for payment and that (2) claims were submitted (3) even though the defendant was not in compliance with that law, rule or regulation." Ebeid, 616 F.3d at 998.
The Court has reviewed the Complaint in detail and agrees with Kaiser that it fails to adequately plead the remaining FCA claim. While the Complaint cites to various statutes and regulations to argue that Kaiser's Medical Advantage plan is required to provide the same level of coverage required under Medicare and that medically necessary transports are covered by Medicare, see e.g., Complaint ¶¶24-25, 27-29, the Complaint does not identify which law, rule or regulation Kaiser undertook to comply with that "is implicated in submitting a claim for payment."
Simply put, ProTransport's Complaint does not sufficiently allege the "who, what, when, where, and how" of the asserted implied false certification claim to allow Kaiser to defend. Therefore, Kaiser's Motion to Dismiss is GRANTED with respect to ProTransport's FCA claim. However, as it is not clear that ProTransport would not be able to adequately allege a FCA claim, the dismissal is WITH LEAVE TO AMEND. If ProTransport wishes to amend, it must file an amended complaint within twenty (20) days of the date of this Order.
Kaiser also moves to dismiss ProTransport's claim under California Health and Safety Code section 1278.5, arguing that as a non-contracted transportation service provider ProTransport is not within the scope of the statute's protection. Section 1278.5(b)(1) provides that "[n]o health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has" presented a grievance or complaint to the facility, an agency or any other governmental entity. ProTransport asserts that it is covered by the statute as "any other health care worker" of Kaiser, and that as a "remedial statute" section 1278.5 should be broadly interpreted to include entities like ProTransport. Opp. Br. at 14-15. There are two problems with ProTransport's position.
First, ProTransport is not "any other health care worker" but an entity. There is no evidence in either the statute itself or in its legislative history that the California Legislature intended to cover entities. All of the categories covered by the statute "patient, employee, member of the medical staff, or any other health care worker" are individuals, not entities. ProTransport argues that where the legislature wanted to limit whistleblower protection to specific individuals or classes of individuals it did so. Opp. at 15 (citing Cal. Bus. & Prof. Code 2056 (providing "protection against retaliation for physicians who advocate for medically appropriate health care") (emphasis added); Cal. Bus. & Prof. Code § 510 (providing "protection against retaliation for health care practitioners who advocate for appropriate health care for their patients") (emphasis added)). But simply because the Legislature provided for whistleblower protection for specific categories of professionals within the Business and Professions Code does not mean "entities" are included in the list of persons expressly protected from retaliation by health facilities in section 1278.5.
Moreover, as Kaiser points out, the original statute covered only patients and employees. In 2007, the Legislature — recognizing a gap in coverage for physicians and surgeons who are not typically employees of a health care facility — amended the statute to "[a]dd[] physicians and surgeons to employees of health facilities . . . that have `whistleblower protection. . . ." Assemb. Comm. on Appropriations, Report re A.B. 632, 2007-08 Reg. Session, at 1 (Apr. 24, 2007). The Senate Report noted that — according to the legislation's sponsor — "any other health care worker of the health facility" "could be interpreted to include persons such as blood, organ, and tissue transporters, emergency medical technicians or paramedics, and physical therapists. By adding the phrase `other health care workers' in the protected class, therefore, these persons would enjoy the whistleblower protections now enjoyed only by patients and employees of the health facility." S. Judiciary Comm., Report on A.B. 632, 2007-08 Reg. Sess.. at 6 (July 12, 2007). The legislative history repeatedly refers to individuals — "people" and "these persons" — and there is no indication that the Legislature intended entities to be covered.
Second, ProTransport ignores that only a "health care worker of the health facility" is covered. ProTransport does not work in or for Kaiser's various health care facilities. Instead, it is a non-contracted transportation service, transporting patients of various medical plans to various medical facilities. There is no indication in the statute itself or its legislative history that the California Legislature intended to cover non-contracted entities such as ProTransport under section 1278.5.
ProTransport argues that if the Court finds that entities are not protected by section 1278.5, it will amend to add ProTransport's Chief Executive Officer, Mike Sechrist, as a party. Opp. Br. at n. 4. The Court finds that amendment would be futile because there no argument or evidence presented that ProTransport's CEO is a "health care worker." Moreover, as with ProTransport itself, there is no evidence that ProTransport's CEO is a health care worker "of" a Kaiser facility.
For the foregoing reasons, the California Health and Safety Code section 1278.5 claim is DISMISSED WITH PREDJUDICE.
Kaiser moves to dismiss ProTransport's Unfair Competition Law Claims ("UCL," Cal. Bus. & Prof. Code § 17200 et seq.).
ProTransport also alleges that Kaiser's conduct is "unfair" under the UCL because it refused to pay for medically necessary transports. ProTransport contends that its unfairness allegation is "tethered" to legislative policies against defrauding the government, protecting patients, protecting patients' advocates, and encouraging competitive bidding. Complaint, ¶ 92. In its opposition, ProTransport explains that its "unfairness" claim is based on its allegations that Kaiser retaliated against ProTransport — after ProTransport complained of inadequate patient care and fraud — in that Kaiser refused to pay for any of plaintiff's transports (not just Medicare transports) and Kaiser refused to allow ProTransport to participate in its competitive bidding process. Opp. Br. at 16.
Kaiser argues the "unfairness" allegations are barred for two reasons. First, Kaiser argues ProTransport's consumer protection claims are preempted under the Medicare Statute. Br. at 21-22; Reply Br. at 13-14; see also 42 U.S.C. § 1395w-26 ("The standards established under this part [42 USCS §§ 1395w-21 et seq.] shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA plans which are offered by MA organizations under this part."); 42 C.F.R. § 422.402(a) ("The standards established under this part supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to the MA plans that are offered by MA organizations"). However, the two cases Kaiser relies on Do Sung Uhm v. Humana, Inc., 620 F.3d 1134 and Phillips v. Kaiser Found. Health Plan, Inc., 2011 U.S. Dist. LEXIS 80456 (N.D. Cal. July 25, 2011), do not support its argument here.
In Do Sung Uhm v. Humana, Inc., the Ninth Circuit held that plaintiffs' fraud and consumer protection act claims — based on misrepresentations made by the defendant in marketing its plan — were preempted under the Medicare Act's explicit preemption provision. The Court reached that conclusion because determining whether the marketing at issue was fraudulent and misleading would conflict with a specific "standard" requiring CMS to approve plan marketing materials and determine whether or not they were misleading. Id., 620 F.3d at 1150-53. Here, however, defendant has not identified any particular portion of the Medicare Act or a standard promulgated by CMS that would conflict with ProTransport's claim that Kaiser retaliated against it by refusing to pay for non-Medicare transports and by excluding it from bidding to provide services to Kaiser.
Similarly in Phillips v. Kaiser Found. Health Plan, Inc., the Court determined that that plaintiff's claims were either (a) a disguised attempt to seek benefits, which were subject to exhaustion; or (2) a challenge to the defendant's marketing materials, which was preempted under the same specific standard identified in Uhm. 2011 U.S. Dist. LEXIS 80456 at *28-29. As noted above Kaiser fails to identify any standard that could be implicated by determining whether it was unfair of Kaiser to retaliate against ProTransport by failing to pay ProTransport for non-Medicare transports and excluding ProTransport from its bidding process.
Second, Kaiser argues that ProTransport fails to adequately allege its UCL unfairness claim under Rules 9(b) and 12(b)(6). Reply Br. at 14-15. However, "fraud" is not an element of the remaining "retaliation" unfairness UCL claims, therefore, Rule 9(b) does not apply. As to Rule 12(b)(6), the Court finds that Kaiser has adequately alleged the basis for its assertion that Kaiser unfairly retaliated against it as a result of ProTransport's complaints about billing and patient care.
As such, Kaiser's Motion to Dismiss the UCL claim is GRANTED in part and DENIED in part. ProTransport's "illegal" prong UCL claims are DISMISSED, however, with leave to amend if ProTransport amends its FCA claim.
Kaiser moves to strike various portions of the Complaint which, it contends, contain immaterial and scandalous allegations which will serve only to distract and waste resources. Kaiser also moves to strike portions of ProTransport's requests for relief under its UCL claims, as the requests cover damages and other monies that are not available as restitution under the UCL.
Federal Rule of Civil Procedure 12(f) provides that a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The function of a motion to strike under Rule 12(f) is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing of those issues before trial. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) (citation omitted). Motions to strike "are generally disfavored because they are often used as delaying tactics and because of the limited importance of pleadings in federal practice." Rosales v. Citibank, 133 F.Supp.2d 1177, 1180 (N.D. Cal. 2001). In most cases, a motion to strike should not be granted unless "the matter to be stricken clearly could have no possible bearing on the subject of the litigation." Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004).
The Court GRANTS the Motion to Strike in part. References to Kaiser welcoming deaths, causing deaths or profiting from deaths — unsubstantiated by factual allegations — are immaterial and scandalous and should be stricken.
The Court DENIES the motion to strike. While of questionable relevance, the allegations are not immaterial or impertinent.
The Court GRANTS the Motion to Strike in part. References to Kaiser welcoming deaths, causing deaths or profiting from deaths — unsubstantiated by factual allegations — are immaterial and scandalous and should be stricken.
The Court GRANTS the Motion to Strike in part. References to Kaiser welcoming deaths, causing deaths or profiting from deaths — unsubstantiated by factual allegations — are immaterial and scandalous and should be stricken.
The Court DENIES the Motion to Strike. This allegation, when read in full, is not immaterial or scandalous.
The Court DENIES the Motion to Strike. These allegations are not immaterial.
The Court DENIES the Motion to Strike. While no longer relevant to the case, in light of this claim's dismissal, the allegations are not immaterial.
The Court GRANTS the Motion to Strike. References to Kaiser welcoming deaths, causing deaths or profiting from deaths — unsubstantiated by factual allegations — are immaterial and scandalous and should be stricken.
Exhibit A are not immaterial or impertinent.
Kaiser moves to strike portions of paragraphs 94 and 95 regarding requested remedies for the alleged UCL violations on the grounds that the requested remedies fall outside of restitution allowed under the UCL. Specifically, Kaiser moves the strike:
The Court GRANTS the Motion to Strike. The only form of monetary damages authorized by the UCL is restitution and the "object of restitution is to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest." Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1148-49 (2003). ProTransport opposes the Motion to Strike, arguing that it is "essentially seeking payment of wages for work it completed at the specific direction of Kaiser's own physicians who requested the transport" and it is well-settled that restitution under the UCL includes "lost wages." Opp. Br. at 21. However, the cases Kaiser relies on — which recognize the rights of employees to unpaid but owed wages as "vested property rights," see e.g., Montecino v. Spherion Corp., 427 F.Supp.2d 965 (C.D. Cal. 2006); Hirel Connectors, Inc. v. United States, 2004 U.S. Dist. LEXIS 31036 (C.D. Cal. Jan. 23, 2004) — are not controlling here. The monies ProTransport seeks to recover are disputed reimbursements, which Kaiser is alleged to owe to a service provider. Those claimed damages are in no way akin to earned but unpaid wages of an employee.
Pursuant to the plaintiff's request, and with the Attorney General's consent, plaintiff's second through fifth and eight through tenth claims are DISMISSED WITHOUT PREJUDICE. Plaintiff's first claim — for violation of 31 U.S.C. section 3729(a)(1)(D) is DISMISSED WITH LEAVE TO AMEND within twenty days of the date of this Order. Plaintiff's sixth claim for violation of California Health and Safety Code section 1278.5 is DISMISSED WITH PREJUDICE. Plaintiff's UCL Claim is DISMISSED, in part, WITH LEAVE TO AMEND. Defendant's Motion to Strike is DENIED in part and GRANTED in part.
