On April 26, 2019 a
Jury Demand
was filed
involving a dispute between
A., A.,
A., D.,
Ahlheim, Kimberly,
A., S.,
B., B.,
C., A.,
C., B.,
C., C.,
Christ, Alexandra,
C., M.,
D., B.,
D., D.,
Doe, Jane,
E., E.,
F., B.,
F., C.,
F., F.,
F., J.,
Flaherty, Daniel,
F., S.,
G., F.,
G., G.,
G., K.,
H., D.,
H., G.,
H., H.,
H., T.,
I., I.,
J., A.,
J., I.,
J., J.,
J., Q.,
J., R.,
K., K.,
L., A.,
L., B.,
L., C.,
L., E.,
Levin, Rachel,
L., H. A.,
L., I.,
L., K.,
L., L.,
L., T.,
Luo, Michelle,
M., A.,
M., Amanda,
M., K.,
M., L.,
M., M.,
M., N.,
M., R.,
Nail, Katharine,
Nail, Robert,
N., N.,
N., S.,
O., J.,
O., N.,
O., S.,
O., X.,
P., J.,
Plaintiffs,
P., M.,
P., O.,
P., R.,
P., S.,
Q., P.,
Q., Q.,
R., E.,
Rivera, Sylvia,
R., J.,
Rosenbaum, Amy,
R., Q.,
R., R.,
S., B.,
S., Lucas,
S., S.,
T., G.,
T., M.,
T., S.,
T., T.,
V., U.,
Wallace, Paul,
Walsh, Kelly,
W., K.,
Wong, Lawrence,
Wong, Sharlene,
W., Q.,
Y., N.,
Y., Y.,
Z., A.,
Z., Z.,
and
Chart Inc.,
Chart, Inc.,
Chart Industries, Inc., A Corporation,
Chenette, Philip,
Conaghan, Joseph,
Does 1-100, Inclusive,
Does One Through One Hundred,
Does One Through One Hundred, Inclusive,
Extron Co.,
Extron Company, A Corporation,
Givens, Carolyn,
Herbert, Dr. Carl M.,
Li, Liyun,
Pacific Fertility Center,
Pacific Fertility Center, An Unincorporated Entity,
Pacific Mso, Llc,
Praxair Distribution, Inc.,
Praxair, Inc.,
Prelude Fertility, Inc., A Corporation,
Ryan, Isabelle,
San Francisco Fertility Centers D B A Pacific,
Schriock, Eldon,
for COORDINATION
in the District Court of San Francisco County.
Preview
1
LAW OFFICES OF
WALKUP, MELODIA, KELLY & SCHOENBERGER
2
A PROFESSIONAL CORPORATION
ELECTRONICALLY
650 CALIFORNIA STREET, 26TH FLOOR
3 SAN FRANCISCO, CALIFORNIA 94108-2615 F I L E D
T: (415) 981-7210 · F: (415) 391-6965 Superior Court of California,
County of San Francisco
4
MICHAEL A. KELLY (State Bar #71460) 01/08/2021
Clerk of the Court
5 mkelly@walkuplawoffice.com BY: JUDITH NUNEZ
DORIS CHENG (State Bar #197731) Deputy Clerk
6 dcheng@walkuplawoffice.com
7 Elizabeth J. Cabraser (SBN 083151)
ecabraser@lchb.com
8 Lexi J. Hazam (SBN 224457)
lhazam@lchb.com
9 Sarah R. London (SBN 267083)
slondon@lchb.com
10 Tiseme G. Zegeye (SBN 319927)
tzegeye@lchb.com
11 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
12 San Francisco, CA 94111-3339
Telephone: 415.956.1000
13 Facsimile: 415.956.1008
14 PLAINTIFFS’ LIAISON COUNSEL
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 COUNTY OF SAN FRANCISCO
17
18 COORDINATION PROCEDDING JCCP No. 5021
SPECIAL TITLE [RULE 3.550]
19 [Individual Case No. CGC-18-569718]
PACIFIC FERTILITY CASES,
20 SHORT FORM COMPLAINT FOR
DAMAGES AND DEMAND FOR
21 JURY TRIAL
22 Judge: Hon. Andrew Y.S. Cheng
Dept.: 613
23
24
25
26
27
28
1
SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 [check only one]
2 Plaintiff(s) _________________________ expressly disavows Plaintiffs’
3 Master Complaint and Jury Demand filed in A.C. vs. Pacific Fertility Center, et al.,
4 Case. No. 18-CGC-565215 in the Superior Court of the State of California, on June 5,
5 2019, and adopted by all actions coordinated in this JCCP 5021 by the Court’s March
6 2, 2020 Order. Plaintiff(s)’ Individual Complaint, filed on
7 _________________________, in _________________________ Court, Case No.
8 ________________________ , attached herewith as Exhibit A, is Plaintiffs’ operative
9 Complaint. The following paragraphs do not apply to Plaintiffs.
10 Plaintiff(s) B.L. and S.A. incorporate(s) by reference Plaintiffs’ Master
11 Complaint and Jury Demand filed in A.C. vs. Pacific Fertility Center, et al., Case. No.
12 18-CGC-565215 in the Superior Court of the State of California, on June 5, 2019, and
13 adopted by all actions coordinated in this JCCP 5021 by the Court’s March 2, 2020
14 Order. Plaintiff(s) select and indicate by checking boxes where requested, parties
15 and claims specific to this case. Plaintiff(s) include supporting and additional facts
16 which are alleged below or on an additional sheet attached to this Complaint.
17 Plaintiffs, by and through counsel, allege as follows:
18
I. VENUE
19 1. Venue is proper in this Court in accordance with §395(a) of the
20 California Code of Civil Procedure because the injury occurred in San Francisco
21 County.
22
II. PLAINTIFF(S)
23 2. Plaintiff, B.L. , is a citizen and resident of the state of California.
24 3. Plaintiff, S.A. , is a citizen and resident of the state of California.
25 III. DEFENDANTS
26 4. Plaintiff(s) name the following Defendants in this action [check only
27 those that apply]:
28 Pacific Fertility Center
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET 2
SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 Prelude Fertility, Inc.
2 Pacific MSO, LLC
3 Chart, Inc.
4 Praxair Distribution, Inc.
5 Praxair, Inc.
6 Does One through One Hundred
7 5. Plaintiff(s)’ action is:
8
a new case
9
10 a case previously filed and ordered coordinated into JCCP No. 5021.
11
a case previously filed and pending coordination into JCCP No. 5021.
12
Plaintiff(s)’ add-on petition and supporting documents were filed on
13
__________________________ [date].
14
15 IV. ADDITIONAL PLAINTIFF(S) FACTS
16 5. Reproductive material belonging to Plaintiff(s) was frozen and stored in
17 the cryogenic freezer tank, “Tank 4” at Pacific Fertility Center on March 4, 2018, the
18 date of its failure, as follows:
19 (number) eggs
20 3 (number) embryos
21 6. Plaintiff(s)’ reproductive material in Tank 4 was created:
22 using only Plaintiff(s)’ genetic material.
23 using only donor genetic material.
24 using Plaintiff(s)’ and donor genetic material.
25 7. Plaintiff(s) assert(s) the following additional factual allegations
26 regarding Defendants’ communications, representations, and omissions related to
27 egg or embryo storage at Pacific Fertility Center:
28
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET 3
SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1
2
3
4
5
6 V. INJURIES
7 8. Plaintiff(s) allege(s) the following injuries as a result of the tank failure on
8 March 4, 2018:
9
Plaintiffs have irreplaceably lost the use of their unique, precious and valuable
10 bodily tissue and genetic material. As a direct and legal cause of Defendants’
11 acts and omissions, Plaintiffs’ trust has been irreparably breached and
Plaintiffs have been caused to suffer uncertainty, anxiety, and fear over how to
12 proceed and recover from this mishap. Plaintiffs have sustained and will
continue to sustain severe emotional distress by reason of the damage to their
13 unique embryos. Plaintiffs have suffered non-economic damages in connection
14 with the loss of their bodily tissue and genetic material, as well as for
additional procedures to remediate the loss. It has become necessary for
15 Plaintiffs, and will become necessary for Plaintiffs in the future, to incur
expenses for new and different reproductive services, the services of medical
16 and genetic professionals, doctors, hospitals, and other unknown health care
17 professionals, specialized technicians and other reasonably required supplies
and services, which said services are now necessary in order to remediate the
18 harm caused by the defendants. Plaintiffs have and will suffer and sustain
economic losses including loss of earnings and benefits in order to replace or
19 remedy the loss.
20
21
22
VI. CLAIMS/COUNTS
23
9. The following claims asserted in the Master Complaint, and the
24
allegations with regard thereto in the Master Complaint, are adopted in this Short
25
Form Complaint by reference [check only those that apply]:
26
Count I - Negligent Failure to Recall;
27
Count II - Strict Products Liability – Failure to Warn;
28
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET 4
SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 Count III - Strict Products Liability – Manufacturing Defect;
2 Count IV - Strict Products Liability – Design Defect – Consumer
3 Expectation;
4 Count V - Strict Products Liability – Design Defect – Risk-Benefit;
5 Count VI - Negligence and/or Gross Negligence;
6 Count VII - Negligence and/or Gross Negligence;
7 Count VIII - Conversion;
8 Count IX - Bailment;
9 Count X - Premises Liability;
10 Count XI - Violation of the Unfair Competition Law, Cal. Bus. & Prof.
11 Code § 17200 et seq.;
12 Count XII - Violations of the Consumers Legal Remedies Act, Cal. Civ.
13 Code § 1750 et seq.;
14 Count XIII - Fraudulent Concealment; and
15 Count XIV - Negligent Misrepresentation
16
17 10. In addition to the allegations and causes of action set forth in the
18 Master Complaint, Plaintiff(s) allege(s) the following additional facts and/or causes
19 of action:
20
21
22
23
24
25
26
27
28
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET 5
SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
1 VII. PROCEDURAL REQUIREMENTS FOR CLRA CLAIMS
2 11. For Plaintiffs pursuing claims under the Consumer Legal Remedies
3 Act (“CLRA”), Cal. Civ. Code § 1750:
4 Pursuant to Cal. Civ. Code § 1782(a), Plaintiff(s) sent letters to
5 Defendant(s) notifying them of their CLRA violations and affording them the
6 opportunity to correct their business practices and rectify the harm they caused.
7 Copies of the CLRA letters are filed herewith.
8 In accordance with Cal. Civ. Code § 1780(d), Plaintiff(s)’ CLRA venue
9 declarations are filed herewith.
10 VIII. PRAYER FOR RELIEF
11 WHEREFORE, Plaintiff(s) pray for relief as set forth in the Plaintiffs’ Master
12 Complaint in A.C. vs. Pacific Fertility Center, et al., Case. No. 18-CGC-565215 in the
13 Superior Court of California for the County of San Francisco.
14 IX. DEMAND FOR JURY TRIAL
15 Plaintiff(s) demand a trial by jury on all issues so triable.
16
17 Dated: January 5, 2021 W ALKUP , M ELODIA , K ELLY & S CHOENBERGER
18
19
By:
20 MICHAEL A. KELLY
DORIS CHENG
21
JADE SMITH-WILLIAMS
22 Attorneys for Plaintiff
23
24
25
26
27
28
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET 6
SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
26TH FLOOR
SAN FRANCISCO, CA 94108
(415) 981-7210
EXHIBIT 1
September 14, 2020
Via Certified Mail Return Receipt Requested and Electronic Mail
Pacific Fertility Center
55 Francisco Street, Suite 500
San Francisco, CA 94133
Re: Notice of Violation of California’s Consumers Legal
Remedies Act and Demand for Relief, Pursuant to Cal.
Civ. Code § 1782
To Who It May Concern:
This firms represents Plaintiffs A.L; A.M & K.M.; B.F. & J.R.; B.L. &
S.A.; B.S. & R.P.; C.F. & J.F.; C.L. & M.C.; Jane Doe; H.A.L. & K.W.; I.L. &
E.L.; J.P. & J.O.; J.R.R. & J.R.; M.P.; M.T. & G.T.; Q.W. & X.O.; R.M.; S.F.;
S.P. & A.A.; T.H.; and T.L. & S.N.s As reflected in further detail in the
attached Master Complaint filed in California Superior Court, San Francisco
County, Plaintiffs allege that Pacific Fertility Center, Pacific MSO, and
Prelude engaged in deceptive acts and practices, including by failing to
disclose that their storage tank, electronic monitoring, alarm, and response
systems and processes were inadequate to safely store Plaintiffs’ eggs. As a
result, on March 4, 2018, Pacific Fertility Center discovered that the nitrogen
levels in a storage tank known as “Tank 4” had dropped to an unsafe level for
an undetermined period of time, destroying or jeopardizing the eggs and
embryos stored in the tank, including those belonging to the above-referenced
Plaintiffs.
Defendants’ conduct violates California consumer protection law,
including California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750,
et seq., because Pacific Fertility, Pacific MSO and Prelude:
1) passed off services as those of another;
2) misrepresented the source of goods or services;
3) misrepresented the affiliation, connection, or association
with another;
650 C ALIFORNIA S TREET , 26
F LOOR D ORIS C HENG T ELEPHONE (415) 981-7210
TH
S AN F RANCISCO , CA 94108-2615 dcheng@walkuplawoffice.com F ACSIMILE (415) 391-6965
Pacific Fertility Center
September 14, 2020
Page 2
4) represented that their services had characteristics, uses,
and benefits that they did not have;
5) represented that their services were of a particular
standard, quality, or grade, when they were not;
6) advertised services with intent not to sell them as
advertised; and
7) represented that the subject of a transaction had been
supplied in accordance with a previous representation when it had not.
See Cal. Civ. Code § 1770. This notice, in conjunction with previous
notices issued by other consumers who had stored genetic material in Tank 4,
serve as our demand that you correct your business practices and take
prompt action.
Please direct all communications or responses regarding this notice to
the following counsel:
Michael A. Kelly (State Bar No. 71460)
Doris Cheng (State Bar No. 197731)
Walkup Melodia Kelly & Schoenberger
650 California Street, Fl 26
San Francisco, CA 94108
Tel: (415) 981-7210
Fax: (415) 391-6965
mkelly@walkuplawoffice.com
dcheng@walkuplawoffice.com
REQUESTED REMEDIES
Plaintiffs DEMAND THAT WITHIN THIRTY DAYS you remedy your
violations by doing the following:
Compensate the above-referenced Plaintiffs for all injuries caused by
Pacific Fertility, Pacific MSO, and Prelude’s failure to disclose that their
systems and processes were inadequate to safely store human reproductive
tissue, including Plaintiffs resulting emotional distress, mitigation expenses,
and the costs of Defendants’ services.
Pacific Fertility Center
September 14, 2020
Page 3
Immediately cease selling services while maintaining systems and
processes that are inadequate to safely store human reproductive tissue,
until you:
a. Allow Plaintiffs’ counsel to inspect Pacific Fertility, Pacific MSO,
and Prelude’s current systems and processes; and
b. Implement all system and process improvements demanded by
Plaintiffs’ counsel following inspections.
Pay into a court-approved escrow account an amount of money
sufficient to pay the above-referenced Plaintiffs reasonable attorneys’ fees
and costs.
Very truly yours,
DORIS CHENG
cc: Joseph Picchi, Esq. (jpicchi@glattys.com)
September 14, 2020
Via Certified Mail Return Receipt Requested and Electronic Mail
Prelude Fertility, Inc.
c/o April P. Eckardt
1100 Johnson Ferry Rd. #200
Atlanta, GA 30342
Re: Notice of Violation of California’s Consumers Legal
Remedies Act and Demand for Relief, Pursuant to Cal.
Civ. Code § 1782
To Who It May Concern:
This firms represents Plaintiffs A.L; A.M & K.M.; B.F. & J.R.; B.L. &
S.A.; B.S. & R.P.; C.F. & J.F.; C.L. & M.C.; Jane Doe; H.A.L. & K.W.; I.L. &
E.L.; J.P. & J.O.; J.R.R. & J.R.; M.P.; M.T. & G.T.; Q.W. & X.O.; R.M.; S.F.;
S.P. & A.A.; T.H.; and T.L. & S.N.s As reflected in further detail in the
attached Master Complaint filed in California Superior Court, San Francisco
County, Plaintiffs allege that Pacific Fertility Center, Pacific MSO, and
Prelude engaged in deceptive acts and practices, including by failing to
disclose that their storage tank, electronic monitoring, alarm, and response
systems and processes were inadequate to safely store Plaintiffs’ eggs. As a
result, on March 4, 2018, Pacific Fertility Center discovered that the nitrogen
levels in a storage tank known as “Tank 4” had dropped to an unsafe level for
an undetermined period of time, destroying or jeopardizing the eggs and
embryos stored in the tank, including those belonging to the above-referenced
Plaintiffs.
Defendants’ conduct violates California consumer protection law,
including California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750,
et seq., because Pacific Fertility, Pacific MSO, and Prelude:
1) passed off services as those of another;
2) misrepresented the source of goods or services;
650 C ALIFORNIA S TREET , 26
F LOOR D ORIS C HENG T ELEPHONE (415) 981-7210
TH
S AN F RANCISCO , CA 94108-2615 dcheng@walkuplawoffice.com F ACSIMILE (415) 391-6965
Prelude Fertility, Inc.
September 14, 2020
Page 2
3) misrepresented the affiliation, connection, or association
with another;
4) represented that their services had characteristics, uses,
and benefits that they did not have;
5) represented that their services were of a particular
standard, quality, or grade, when they were not;
6) advertised services with intent not to sell them as
advertised; and
7) represented that the subject of a transaction had been
supplied in accordance with a previous representation when it had not.
See Cal. Civ. Code § 1770. This notice, in conjunction with previous
notices issued by other consumers who had stored genetic material in Tank 4,
serve as our demand that you correct your business practices and take
prompt action.
Please direct all communications or responses regarding this notice to
the following counsel:
Michael A. Kelly (State Bar No. 71460)
Doris Cheng (State Bar No. 197731)
Walkup Melodia Kelly & Schoenberger
650 California Street, Fl 26
San Francisco, CA 94108
Tel: (415) 981-7210
Fax: (415) 391-6965
mkelly@walkuplawoffice.com
dcheng@walkuplawoffice.com
REQUESTED REMEDIES
Plaintiffs DEMAND THAT WITHIN THIRTY DAYS you remedy your
violations by doing the following:
Compensate the above-referenced Plaintiffs for all injuries caused by
Pacific Fertility, Pacific MSO, and Prelude’s failure to disclose that their
systems and processes were inadequate to safely store human reproductive
Prelude Fertility, Inc.
September 14, 2020
Page 3
tissue, including Plaintiffs resulting emotional distress, mitigation expenses,
and the costs of Defendants’ services.
Immediately cease selling services while maintaining systems and
processes that are inadequate to safely store human reproductive tissue,
until you:
a. Allow Plaintiffs’ counsel to inspect Pacific Fertility, Pacific MSO,
and Prelude’s current systems and processes; and
b. Implement all system and process improvements demanded by
Plaintiffs’ counsel following inspections.
Pay into a court-approved escrow account an amount of money
sufficient to pay the above-referenced Plaintiffs reasonable attorneys’ fees
and costs.
Very truly yours,
DORIS CHENG
cc: Erin Bosman, Esq. (ebosman@mofo.com)
September 14, 2020
Via Certified Mail Return Receipt Requested and Electronic Mail
Pacific MSO, LLC
c/o CT Corporation System
818 West Seventh Street, Suite 930
Los Angeles, CA 90017
Re: Notice of Violation of California’s Consumers Legal
Remedies Act and Demand for Relief, Pursuant to Cal.
Civ. Code § 1782
To Who It May Concern:
This firms represents Plaintiffs A.L; A.M & K.M.; B.F. & J.R.; B.L. &
S.A.; B.S. & R.P.; C.F. & J.F.; C.L. & M.C.; Jane Doe; H.A.L. & K.W.; I.L. &
E.L.; J.P. & J.O.; J.R.R. & J.R.; M.P.; M.T. & G.T.; Q.W. & X.O.; R.M.; S.F.;
S.P. & A.A.; T.H.; and T.L. & S.N.s As reflected in further detail in the
attached Master Complaint filed in California Superior Court, San Francisco
County, Plaintiffs allege that Pacific Fertility Center, Pacific MSO, and
Prelude engaged in deceptive acts and practices, including by failing to
disclose that their storage tank, electronic monitoring, alarm, and response
systems and processes were inadequate to safely store Plaintiffs’ eggs. As a
result, on March 4, 2018, Pacific Fertility Center discovered that the nitrogen
levels in a storage tank known as “Tank 4” had dropped to an unsafe level for
an undetermined period of time, destroying or jeopardizing the eggs and
embryos stored in the tank, including those belonging to the above-referenced
Plaintiffs.
Defendants’ conduct violates California consumer protection law,
including California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750,
et seq., because Pacific Fertility, Pacific MSO, and Prelude:
1) passed off services as those of another;
2) misrepresented the source of goods or services;
650 C ALIFORNIA S TREET , 26
F LOOR D ORIS C HENG T ELEPHONE (415) 981-7210
TH
S AN F RANCISCO , CA 94108-2615 dcheng@walkuplawoffice.com F ACSIMILE (415) 391-6965
Pacific MSO, LLC
September 14, 2020
Page 2
3) misrepresented the affiliation, connection, or association
with another;
4) represented that their services had characteristics, uses,
and benefits that they did not have;
5) represented that their services were of a particular
standard, quality, or grade, when they were not;
6) advertised services with intent not to sell them as
advertised; and
7) represented that the subject of a transaction had been
supplied in accordance with a previous representation when it had not.
See Cal. Civ. Code § 1770. This notice, in conjunction with previous
notices issued by other consumers who had stored genetic material in Tank 4,
serve as our demand that you correct your business practices and take
prompt action.
Please direct all communications or responses regarding this notice to
the following counsel:
Michael A. Kelly (State Bar No. 71460)
Doris Cheng (State Bar No. 197731)
Walkup Melodia Kelly & Schoenberger
650 California Street, Fl 26
San Francisco, CA 94108
Tel: (415) 981-7210
Fax: (415) 391-6965
mkelly@walkuplawoffice.com
dcheng@walkuplawoffice.com
REQUESTED REMEDIES
Plaintiffs DEMAND THAT WITHIN THIRTY DAYS you remedy your
violations by doing the following:
Compensate the above-referenced Plaintiffs for all injuries caused by
Pacific Fertility, Pacific MSO, and Prelude’s failure to disclose that their
systems and processes were inadequate to safely store human reproductive
Pacific MSO, LLC
September 14, 2020
Page 3
tissue, including Plaintiffs resulting emotional distress, mitigation expenses,
and the costs of Defendants’ services.
Immediately cease selling services while maintaining systems and
processes that are inadequate to safely store human reproductive tissue,
until you:
a. Allow Plaintiffs’ counsel to inspect Pacific Fertility, Pacific MSO,
and Prelude’s current systems and processes; and
b. Implement all system and process improvements demanded by
Plaintiffs’ counsel following inspections.
Pay into a court-approved escrow account an amount of money
sufficient to pay the above-referenced Plaintiffs reasonable attorneys’ fees
and costs.
Very truly yours,
DORIS CHENG
cc: Erin Bosman, Esq. (ebosman@mofo.com)
EXHIBIT 2
HERSH AND HERSH
March 1, 2019 D>Roy Hernh (1920-2003)
Nancy Hersh
VIA CERTIFIED MAIL Mark E. Burton, Jr.
Charles C. Kelly, II
RETURN RECEIPT REQUESTED
Kate Hersh-Boyle
Montana Baker
Pacific Fertility Center Josue Aparicio
55 Francisco Street, Suite 500
San Francisco, CA 94133
RE: Notice of Violation of California's Consruners Legal Remedies Act and Demand
for Relief, Pursuant to Cal. Civ. Code § 1782
To Who It May Concern:
Hersh & Hersh represents PlaintiffE.R. Plaintiff alleges that Pacific Fertility and Prelude
engaged in deceptive acts and practices, including by failing to disclose that their storage tank,
electronic monitoring, alarm, and response systems and processes were inadequate to safely store
Plaintiff's eggs. As a result, on March 4, 2018, Pacific Fertility discovered that the nitrogen levels
in a storage tank known as "Tank 4" had dropped to an unsafe level for an undetermined period of
time, destroying or jeopardizing the eggs and embryos stored in the tank, including those
belonging to Plaintiff.
Defendants' conduct violates California consumer protection law, including California's
Consruners Legal Remedies Act, Cal. Civ. Code § 1750, et seq., because Pacific Fertility and
Prelude:
1) passed off services as those of another;
2) misrepresented the source of goods or services;
3) misrepresented the affiliation, connection, or association with another;
4) represented that their services had characteristics, uses, and benefits that
they did not have;
5) represented that their services were of a particular standard, quality, or
grade, when they were not;
6) advertised services with intent not to sell them as advertised; and
Hersh & Hersh A Professional Corporation 601 Van Ness Avenue Suite 2080 San Francisco, CA 94102-6316
Telephone (415) 441-5544 Facsimile (415) 441-7586 www.hershlaw.com
HERSHANDHERSH
March 1, 2019
Page 2
7) represented that the subject of a transaction had been supplied in
accordance with a previous representation when it had not
See Cal. Civ. Code§ 1770. With this letter, our firm, on behalf of Plaintiff, demands that you
correct your business practices and take prompt action.
Please direct all communications or responses regarding this notice to the following
counsel:
Kate Hersh-Boyle
HERSH & HERSH
A Professional Corporation
601 Van Ness Avenue, Suite 2080
San Francisco, California 94102-6388
Telephone: (415) 441-5544
Facsimile: (415) 441-7586
Email: kbershboyle@hershlaw.com
REQUESTED REMEDIES
Plaintiff DEMANDS THAT WITHIN THIRTY (30) DAYS you remedy your violations
by doing the following: ·
I. Compensate Plaintiff for all injuries caused by Pacific Fertility and Prelude's
failure to disclose that their systems and processes were inadequate to safely store
human reproductive tissue, including Plaintiff's resulting emotional distress,
mitigation expenses, and the costs of Defendants' services.
IL Immediately cease selling services while maintaining systems and processes that
are inadequate to safely store human reproductive tissue, until you:
a. Allow Plaintiff's counsel to inspect Pacific Fertility and Prelude's current
systems and processes; and
b. Implement all system and process improvements demanded by Plaintiff's
counsel following inspections.
ID. Pay into a court-approved escrow account an amount of money sufficient to pay
Plaintiff's reasonable attorneys' fees and costs.
Hersh & Hersh A Professional.Corporation 601 Van Ness Avenue Suite 2080 San Francisco, CA 94102-6316
Telephone (415) 441-5544 Facsimile (415) 441-7586 www.hersblaw.com
HERSHANDHERSH
March 1, 2019
Page3
Please contact us within thirty (30) days to discuss Pacific Fertility and Prelude's
implementation of these remedies.
11~#
Kate Hersli-Boyle ·
KHB:mbb
Hersh & Hersh A Professional Corporation601 Van Ness Avenue Suite 2080 San Francisco, CA 94102-6316
Telephone (415) 441-5544 Facsimile (415) 441-7586 www.hershlaw.com
HERSHANDHERSH
March 1, 2019 LeRoy Hersh (1920-2003)
Nancy Hersh
VIA CERTIFIED MAIL Mark E. Burton, Jr.
·Charles C. Kelly, II
RETURN RECEIPT REQUESTED
Kate Hersh-Boyle
Montana Baker
Josue Aparicio
Prelude Fertility, Inc.
c/o April P. Eckardt
1100 Johnson Ferry Rd #200
Atlanta, GA 30342
RE: Notice of Violation of California's Consumers Legal Remedies Act and Demand
for Relief, Pursuant to Cal. Civ. Code § 1782
To Who It May Concern:
Hersh & Hersh represents Plaintiff E.R. Plaintiff alleges that Pacific Fertility and Prelude
engaged in deceptive acts and practices, including by failing to disclose that their storage tank,
electronic monitoring, alarm, and response systems and processes were inadequate to safely store
Plaintiffs eggs. As a result, on March 4, 2018, Pacific Fertility discovered that the nitrogen levels
in a storage tank known as "Tank 4" had dropped to an unsafe level for an undetermined period of
time, destroying or jeopardizing the eggs and embryos stored in the tank, including those
belonging to Plaintiff.
Defendants' conduct violates California consumer protection law, including California's
Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq., because Pacific Fertility and
Prelude:
1) passed off services as those of another;
2) misrepresented the source of goods or services;
3) misrepresented the affiliation, connection, or association with another;
4) represented that their services had characteristics, uses, and benefits that
they did not have;
5) represented that their services were of a particular standard, quality, or
grade, when they were not;
6) advertised services with intent not to sell them as advertised; and
Hersh & Hersh A Professional Corporation 601 Van Ness Avenue Suite 2080 San Francisco, CA 94102-6316
Telephone (415) 441-5544 Facsimile (415) 441-7586 www.hershlaw.com
HERSHANDHERSH
March 1, 2019
Page2
7) represented that the subject of a transaction had been supplied in
accordance with a previous representation when it had not.
See Cal. Civ. Code § 1770. With this letter,our firm, on behalf of Plaintiff, demands that you
correct your business practices and take prompt action.
Please direct all communications or responses regarding this notice to the following
counsel:
Kate Hersh-Boyle
HERSH & HERSH
A Professional Corporation
601 Van Ness Avenue, Suite 2080
San Francisco, California 94102-63 88
Telephone: (415) 441-5544
Facsimile: (415) 441-7586
Email: khershboyle@hershlaw.com
REQUESTED REMEDIES
Plaintiff DEMANDS THAT WITHIN THIRTY (30) DAYS you remedy your violations
by doing the following:
I. Compensate Plaintiff for all injuries caused by Pacific Fertility and Prelude's
failure to disclose that their systems and processes were inadequate to safely store
human reproductive tissue, including Plaintiffs resulting emotional distress,
mitigation expenses, and the costs of Defendants' services.
II. Immediately cease selling services while maintaining systems and processes that
are inadequate to safely store human reproductive
Preview
1 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER 2 A PROFESSIONAL CORPORATION ELECTRONICALLY 650 CALIFORNIA STREET, 26TH FLOOR 3 SAN FRANCISCO, CALIFORNIA 94108-2615 F I L E D T: (415) 981-7210 · F: (415) 391-6965 Superior Court of California, County of San Francisco 4 MICHAEL A. KELLY (State Bar #71460) 01/08/2021 Clerk of the Court 5 mkelly@walkuplawoffice.com BY: JUDITH NUNEZ DORIS CHENG (State Bar #197731) Deputy Clerk 6 dcheng@walkuplawoffice.com 7 Elizabeth J. Cabraser (SBN 083151) ecabraser@lchb.com 8 Lexi J. Hazam (SBN 224457) lhazam@lchb.com 9 Sarah R. London (SBN 267083) slondon@lchb.com 10 Tiseme G. Zegeye (SBN 319927) tzegeye@lchb.com 11 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor 12 San Francisco, CA 94111-3339 Telephone: 415.956.1000 13 Facsimile: 415.956.1008 14 PLAINTIFFS’ LIAISON COUNSEL 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 COUNTY OF SAN FRANCISCO 17 18 COORDINATION PROCEDDING JCCP No. 5021 SPECIAL TITLE [RULE 3.550] 19 [Individual Case No. CGC-18-569718] PACIFIC FERTILITY CASES, 20 SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR 21 JURY TRIAL 22 Judge: Hon. Andrew Y.S. Cheng Dept.: 613 23 24 25 26 27 28 1 SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 [check only one] 2 Plaintiff(s) _________________________ expressly disavows Plaintiffs’ 3 Master Complaint and Jury Demand filed in A.C. vs. Pacific Fertility Center, et al., 4 Case. No. 18-CGC-565215 in the Superior Court of the State of California, on June 5, 5 2019, and adopted by all actions coordinated in this JCCP 5021 by the Court’s March 6 2, 2020 Order. Plaintiff(s)’ Individual Complaint, filed on 7 _________________________, in _________________________ Court, Case No. 8 ________________________ , attached herewith as Exhibit A, is Plaintiffs’ operative 9 Complaint. The following paragraphs do not apply to Plaintiffs. 10 Plaintiff(s) B.L. and S.A. incorporate(s) by reference Plaintiffs’ Master 11 Complaint and Jury Demand filed in A.C. vs. Pacific Fertility Center, et al., Case. No. 12 18-CGC-565215 in the Superior Court of the State of California, on June 5, 2019, and 13 adopted by all actions coordinated in this JCCP 5021 by the Court’s March 2, 2020 14 Order. Plaintiff(s) select and indicate by checking boxes where requested, parties 15 and claims specific to this case. Plaintiff(s) include supporting and additional facts 16 which are alleged below or on an additional sheet attached to this Complaint. 17 Plaintiffs, by and through counsel, allege as follows: 18 I. VENUE 19 1. Venue is proper in this Court in accordance with §395(a) of the 20 California Code of Civil Procedure because the injury occurred in San Francisco 21 County. 22 II. PLAINTIFF(S) 23 2. Plaintiff, B.L. , is a citizen and resident of the state of California. 24 3. Plaintiff, S.A. , is a citizen and resident of the state of California. 25 III. DEFENDANTS 26 4. Plaintiff(s) name the following Defendants in this action [check only 27 those that apply]: 28 Pacific Fertility Center LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 2 SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 1 Prelude Fertility, Inc. 2 Pacific MSO, LLC 3 Chart, Inc. 4 Praxair Distribution, Inc. 5 Praxair, Inc. 6 Does One through One Hundred 7 5. Plaintiff(s)’ action is: 8 a new case 9 10 a case previously filed and ordered coordinated into JCCP No. 5021. 11 a case previously filed and pending coordination into JCCP No. 5021. 12 Plaintiff(s)’ add-on petition and supporting documents were filed on 13 __________________________ [date]. 14 15 IV. ADDITIONAL PLAINTIFF(S) FACTS 16 5. Reproductive material belonging to Plaintiff(s) was frozen and stored in 17 the cryogenic freezer tank, “Tank 4” at Pacific Fertility Center on March 4, 2018, the 18 date of its failure, as follows: 19 (number) eggs 20 3 (number) embryos 21 6. Plaintiff(s)’ reproductive material in Tank 4 was created: 22 using only Plaintiff(s)’ genetic material. 23 using only donor genetic material. 24 using Plaintiff(s)’ and donor genetic material. 25 7. Plaintiff(s) assert(s) the following additional factual allegations 26 regarding Defendants’ communications, representations, and omissions related to 27 egg or embryo storage at Pacific Fertility Center: 28 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 3 SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 1 2 3 4 5 6 V. INJURIES 7 8. Plaintiff(s) allege(s) the following injuries as a result of the tank failure on 8 March 4, 2018: 9 Plaintiffs have irreplaceably lost the use of their unique, precious and valuable 10 bodily tissue and genetic material. As a direct and legal cause of Defendants’ 11 acts and omissions, Plaintiffs’ trust has been irreparably breached and Plaintiffs have been caused to suffer uncertainty, anxiety, and fear over how to 12 proceed and recover from this mishap. Plaintiffs have sustained and will continue to sustain severe emotional distress by reason of the damage to their 13 unique embryos. Plaintiffs have suffered non-economic damages in connection 14 with the loss of their bodily tissue and genetic material, as well as for additional procedures to remediate the loss. It has become necessary for 15 Plaintiffs, and will become necessary for Plaintiffs in the future, to incur expenses for new and different reproductive services, the services of medical 16 and genetic professionals, doctors, hospitals, and other unknown health care 17 professionals, specialized technicians and other reasonably required supplies and services, which said services are now necessary in order to remediate the 18 harm caused by the defendants. Plaintiffs have and will suffer and sustain economic losses including loss of earnings and benefits in order to replace or 19 remedy the loss. 20 21 22 VI. CLAIMS/COUNTS 23 9. The following claims asserted in the Master Complaint, and the 24 allegations with regard thereto in the Master Complaint, are adopted in this Short 25 Form Complaint by reference [check only those that apply]: 26 Count I - Negligent Failure to Recall; 27 Count II - Strict Products Liability – Failure to Warn; 28 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 4 SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 1 Count III - Strict Products Liability – Manufacturing Defect; 2 Count IV - Strict Products Liability – Design Defect – Consumer 3 Expectation; 4 Count V - Strict Products Liability – Design Defect – Risk-Benefit; 5 Count VI - Negligence and/or Gross Negligence; 6 Count VII - Negligence and/or Gross Negligence; 7 Count VIII - Conversion; 8 Count IX - Bailment; 9 Count X - Premises Liability; 10 Count XI - Violation of the Unfair Competition Law, Cal. Bus. & Prof. 11 Code § 17200 et seq.; 12 Count XII - Violations of the Consumers Legal Remedies Act, Cal. Civ. 13 Code § 1750 et seq.; 14 Count XIII - Fraudulent Concealment; and 15 Count XIV - Negligent Misrepresentation 16 17 10. In addition to the allegations and causes of action set forth in the 18 Master Complaint, Plaintiff(s) allege(s) the following additional facts and/or causes 19 of action: 20 21 22 23 24 25 26 27 28 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 5 SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 1 VII. PROCEDURAL REQUIREMENTS FOR CLRA CLAIMS 2 11. For Plaintiffs pursuing claims under the Consumer Legal Remedies 3 Act (“CLRA”), Cal. Civ. Code § 1750: 4 Pursuant to Cal. Civ. Code § 1782(a), Plaintiff(s) sent letters to 5 Defendant(s) notifying them of their CLRA violations and affording them the 6 opportunity to correct their business practices and rectify the harm they caused. 7 Copies of the CLRA letters are filed herewith. 8 In accordance with Cal. Civ. Code § 1780(d), Plaintiff(s)’ CLRA venue 9 declarations are filed herewith. 10 VIII. PRAYER FOR RELIEF 11 WHEREFORE, Plaintiff(s) pray for relief as set forth in the Plaintiffs’ Master 12 Complaint in A.C. vs. Pacific Fertility Center, et al., Case. No. 18-CGC-565215 in the 13 Superior Court of California for the County of San Francisco. 14 IX. DEMAND FOR JURY TRIAL 15 Plaintiff(s) demand a trial by jury on all issues so triable. 16 17 Dated: January 5, 2021 W ALKUP , M ELODIA , K ELLY & S CHOENBERGER 18 19 By: 20 MICHAEL A. KELLY DORIS CHENG 21 JADE SMITH-WILLIAMS 22 Attorneys for Plaintiff 23 24 25 26 27 28 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 6 SHORT FORM COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 EXHIBIT 1 September 14, 2020 Via Certified Mail Return Receipt Requested and Electronic Mail Pacific Fertility Center 55 Francisco Street, Suite 500 San Francisco, CA 94133 Re: Notice of Violation of California’s Consumers Legal Remedies Act and Demand for Relief, Pursuant to Cal. Civ. Code § 1782 To Who It May Concern: This firms represents Plaintiffs A.L; A.M & K.M.; B.F. & J.R.; B.L. & S.A.; B.S. & R.P.; C.F. & J.F.; C.L. & M.C.; Jane Doe; H.A.L. & K.W.; I.L. & E.L.; J.P. & J.O.; J.R.R. & J.R.; M.P.; M.T. & G.T.; Q.W. & X.O.; R.M.; S.F.; S.P. & A.A.; T.H.; and T.L. & S.N.s As reflected in further detail in the attached Master Complaint filed in California Superior Court, San Francisco County, Plaintiffs allege that Pacific Fertility Center, Pacific MSO, and Prelude engaged in deceptive acts and practices, including by failing to disclose that their storage tank, electronic monitoring, alarm, and response systems and processes were inadequate to safely store Plaintiffs’ eggs. As a result, on March 4, 2018, Pacific Fertility Center discovered that the nitrogen levels in a storage tank known as “Tank 4” had dropped to an unsafe level for an undetermined period of time, destroying or jeopardizing the eggs and embryos stored in the tank, including those belonging to the above-referenced Plaintiffs. Defendants’ conduct violates California consumer protection law, including California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq., because Pacific Fertility, Pacific MSO and Prelude: 1) passed off services as those of another; 2) misrepresented the source of goods or services; 3) misrepresented the affiliation, connection, or association with another; 650 C ALIFORNIA S TREET , 26 F LOOR D ORIS C HENG T ELEPHONE (415) 981-7210 TH S AN F RANCISCO , CA 94108-2615 dcheng@walkuplawoffice.com F ACSIMILE (415) 391-6965 Pacific Fertility Center September 14, 2020 Page 2 4) represented that their services had characteristics, uses, and benefits that they did not have; 5) represented that their services were of a particular standard, quality, or grade, when they were not; 6) advertised services with intent not to sell them as advertised; and 7) represented that the subject of a transaction had been supplied in accordance with a previous representation when it had not. See Cal. Civ. Code § 1770. This notice, in conjunction with previous notices issued by other consumers who had stored genetic material in Tank 4, serve as our demand that you correct your business practices and take prompt action. Please direct all communications or responses regarding this notice to the following counsel: Michael A. Kelly (State Bar No. 71460) Doris Cheng (State Bar No. 197731) Walkup Melodia Kelly & Schoenberger 650 California Street, Fl 26 San Francisco, CA 94108 Tel: (415) 981-7210 Fax: (415) 391-6965 mkelly@walkuplawoffice.com dcheng@walkuplawoffice.com REQUESTED REMEDIES Plaintiffs DEMAND THAT WITHIN THIRTY DAYS you remedy your violations by doing the following: Compensate the above-referenced Plaintiffs for all injuries caused by Pacific Fertility, Pacific MSO, and Prelude’s failure to disclose that their systems and processes were inadequate to safely store human reproductive tissue, including Plaintiffs resulting emotional distress, mitigation expenses, and the costs of Defendants’ services. Pacific Fertility Center September 14, 2020 Page 3 Immediately cease selling services while maintaining systems and processes that are inadequate to safely store human reproductive tissue, until you: a. Allow Plaintiffs’ counsel to inspect Pacific Fertility, Pacific MSO, and Prelude’s current systems and processes; and b. Implement all system and process improvements demanded by Plaintiffs’ counsel following inspections. Pay into a court-approved escrow account an amount of money sufficient to pay the above-referenced Plaintiffs reasonable attorneys’ fees and costs. Very truly yours, DORIS CHENG cc: Joseph Picchi, Esq. (jpicchi@glattys.com) September 14, 2020 Via Certified Mail Return Receipt Requested and Electronic Mail Prelude Fertility, Inc. c/o April P. Eckardt 1100 Johnson Ferry Rd. #200 Atlanta, GA 30342 Re: Notice of Violation of California’s Consumers Legal Remedies Act and Demand for Relief, Pursuant to Cal. Civ. Code § 1782 To Who It May Concern: This firms represents Plaintiffs A.L; A.M & K.M.; B.F. & J.R.; B.L. & S.A.; B.S. & R.P.; C.F. & J.F.; C.L. & M.C.; Jane Doe; H.A.L. & K.W.; I.L. & E.L.; J.P. & J.O.; J.R.R. & J.R.; M.P.; M.T. & G.T.; Q.W. & X.O.; R.M.; S.F.; S.P. & A.A.; T.H.; and T.L. & S.N.s As reflected in further detail in the attached Master Complaint filed in California Superior Court, San Francisco County, Plaintiffs allege that Pacific Fertility Center, Pacific MSO, and Prelude engaged in deceptive acts and practices, including by failing to disclose that their storage tank, electronic monitoring, alarm, and response systems and processes were inadequate to safely store Plaintiffs’ eggs. As a result, on March 4, 2018, Pacific Fertility Center discovered that the nitrogen levels in a storage tank known as “Tank 4” had dropped to an unsafe level for an undetermined period of time, destroying or jeopardizing the eggs and embryos stored in the tank, including those belonging to the above-referenced Plaintiffs. Defendants’ conduct violates California consumer protection law, including California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq., because Pacific Fertility, Pacific MSO, and Prelude: 1) passed off services as those of another; 2) misrepresented the source of goods or services; 650 C ALIFORNIA S TREET , 26 F LOOR D ORIS C HENG T ELEPHONE (415) 981-7210 TH S AN F RANCISCO , CA 94108-2615 dcheng@walkuplawoffice.com F ACSIMILE (415) 391-6965 Prelude Fertility, Inc. September 14, 2020 Page 2 3) misrepresented the affiliation, connection, or association with another; 4) represented that their services had characteristics, uses, and benefits that they did not have; 5) represented that their services were of a particular standard, quality, or grade, when they were not; 6) advertised services with intent not to sell them as advertised; and 7) represented that the subject of a transaction had been supplied in accordance with a previous representation when it had not. See Cal. Civ. Code § 1770. This notice, in conjunction with previous notices issued by other consumers who had stored genetic material in Tank 4, serve as our demand that you correct your business practices and take prompt action. Please direct all communications or responses regarding this notice to the following counsel: Michael A. Kelly (State Bar No. 71460) Doris Cheng (State Bar No. 197731) Walkup Melodia Kelly & Schoenberger 650 California Street, Fl 26 San Francisco, CA 94108 Tel: (415) 981-7210 Fax: (415) 391-6965 mkelly@walkuplawoffice.com dcheng@walkuplawoffice.com REQUESTED REMEDIES Plaintiffs DEMAND THAT WITHIN THIRTY DAYS you remedy your violations by doing the following: Compensate the above-referenced Plaintiffs for all injuries caused by Pacific Fertility, Pacific MSO, and Prelude’s failure to disclose that their systems and processes were inadequate to safely store human reproductive Prelude Fertility, Inc. September 14, 2020 Page 3 tissue, including Plaintiffs resulting emotional distress, mitigation expenses, and the costs of Defendants’ services. Immediately cease selling services while maintaining systems and processes that are inadequate to safely store human reproductive tissue, until you: a. Allow Plaintiffs’ counsel to inspect Pacific Fertility, Pacific MSO, and Prelude’s current systems and processes; and b. Implement all system and process improvements demanded by Plaintiffs’ counsel following inspections. Pay into a court-approved escrow account an amount of money sufficient to pay the above-referenced Plaintiffs reasonable attorneys’ fees and costs. Very truly yours, DORIS CHENG cc: Erin Bosman, Esq. (ebosman@mofo.com) September 14, 2020 Via Certified Mail Return Receipt Requested and Electronic Mail Pacific MSO, LLC c/o CT Corporation System 818 West Seventh Street, Suite 930 Los Angeles, CA 90017 Re: Notice of Violation of California’s Consumers Legal Remedies Act and Demand for Relief, Pursuant to Cal. Civ. Code § 1782 To Who It May Concern: This firms represents Plaintiffs A.L; A.M & K.M.; B.F. & J.R.; B.L. & S.A.; B.S. & R.P.; C.F. & J.F.; C.L. & M.C.; Jane Doe; H.A.L. & K.W.; I.L. & E.L.; J.P. & J.O.; J.R.R. & J.R.; M.P.; M.T. & G.T.; Q.W. & X.O.; R.M.; S.F.; S.P. & A.A.; T.H.; and T.L. & S.N.s As reflected in further detail in the attached Master Complaint filed in California Superior Court, San Francisco County, Plaintiffs allege that Pacific Fertility Center, Pacific MSO, and Prelude engaged in deceptive acts and practices, including by failing to disclose that their storage tank, electronic monitoring, alarm, and response systems and processes were inadequate to safely store Plaintiffs’ eggs. As a result, on March 4, 2018, Pacific Fertility Center discovered that the nitrogen levels in a storage tank known as “Tank 4” had dropped to an unsafe level for an undetermined period of time, destroying or jeopardizing the eggs and embryos stored in the tank, including those belonging to the above-referenced Plaintiffs. Defendants’ conduct violates California consumer protection law, including California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq., because Pacific Fertility, Pacific MSO, and Prelude: 1) passed off services as those of another; 2) misrepresented the source of goods or services; 650 C ALIFORNIA S TREET , 26 F LOOR D ORIS C HENG T ELEPHONE (415) 981-7210 TH S AN F RANCISCO , CA 94108-2615 dcheng@walkuplawoffice.com F ACSIMILE (415) 391-6965 Pacific MSO, LLC September 14, 2020 Page 2 3) misrepresented the affiliation, connection, or association with another; 4) represented that their services had characteristics, uses, and benefits that they did not have; 5) represented that their services were of a particular standard, quality, or grade, when they were not; 6) advertised services with intent not to sell them as advertised; and 7) represented that the subject of a transaction had been supplied in accordance with a previous representation when it had not. See Cal. Civ. Code § 1770. This notice, in conjunction with previous notices issued by other consumers who had stored genetic material in Tank 4, serve as our demand that you correct your business practices and take prompt action. Please direct all communications or responses regarding this notice to the following counsel: Michael A. Kelly (State Bar No. 71460) Doris Cheng (State Bar No. 197731) Walkup Melodia Kelly & Schoenberger 650 California Street, Fl 26 San Francisco, CA 94108 Tel: (415) 981-7210 Fax: (415) 391-6965 mkelly@walkuplawoffice.com dcheng@walkuplawoffice.com REQUESTED REMEDIES Plaintiffs DEMAND THAT WITHIN THIRTY DAYS you remedy your violations by doing the following: Compensate the above-referenced Plaintiffs for all injuries caused by Pacific Fertility, Pacific MSO, and Prelude’s failure to disclose that their systems and processes were inadequate to safely store human reproductive Pacific MSO, LLC September 14, 2020 Page 3 tissue, including Plaintiffs resulting emotional distress, mitigation expenses, and the costs of Defendants’ services. Immediately cease selling services while maintaining systems and processes that are inadequate to safely store human reproductive tissue, until you: a. Allow Plaintiffs’ counsel to inspect Pacific Fertility, Pacific MSO, and Prelude’s current systems and processes; and b. Implement all system and process improvements demanded by Plaintiffs’ counsel following inspections. Pay into a court-approved escrow account an amount of money sufficient to pay the above-referenced Plaintiffs reasonable attorneys’ fees and costs. Very truly yours, DORIS CHENG cc: Erin Bosman, Esq. (ebosman@mofo.com) EXHIBIT 2 HERSH AND HERSH March 1, 2019 D>Roy Hernh (1920-2003) Nancy Hersh VIA CERTIFIED MAIL Mark E. Burton, Jr. Charles C. Kelly, II RETURN RECEIPT REQUESTED Kate Hersh-Boyle Montana Baker Pacific Fertility Center Josue Aparicio 55 Francisco Street, Suite 500 San Francisco, CA 94133 RE: Notice of Violation of California's Consruners Legal Remedies Act and Demand for Relief, Pursuant to Cal. Civ. Code § 1782 To Who It May Concern: Hersh & Hersh represents PlaintiffE.R. Plaintiff alleges that Pacific Fertility and Prelude engaged in deceptive acts and practices, including by failing to disclose that their storage tank, electronic monitoring, alarm, and response systems and processes were inadequate to safely store Plaintiff's eggs. As a result, on March 4, 2018, Pacific Fertility discovered that the nitrogen levels in a storage tank known as "Tank 4" had dropped to an unsafe level for an undetermined period of time, destroying or jeopardizing the eggs and embryos stored in the tank, including those belonging to Plaintiff. Defendants' conduct violates California consumer protection law, including California's Consruners Legal Remedies Act, Cal. Civ. Code § 1750, et seq., because Pacific Fertility and Prelude: 1) passed off services as those of another; 2) misrepresented the source of goods or services; 3) misrepresented the affiliation, connection, or association with another; 4) represented that their services had characteristics, uses, and benefits that they did not have; 5) represented that their services were of a particular standard, quality, or grade, when they were not; 6) advertised services with intent not to sell them as advertised; and Hersh & Hersh A Professional Corporation 601 Van Ness Avenue Suite 2080 San Francisco, CA 94102-6316 Telephone (415) 441-5544 Facsimile (415) 441-7586 www.hershlaw.com HERSHANDHERSH March 1, 2019 Page 2 7) represented that the subject of a transaction had been supplied in accordance with a previous representation when it had not See Cal. Civ. Code§ 1770. With this letter, our firm, on behalf of Plaintiff, demands that you correct your business practices and take prompt action. Please direct all communications or responses regarding this notice to the following counsel: Kate Hersh-Boyle HERSH & HERSH A Professional Corporation 601 Van Ness Avenue, Suite 2080 San Francisco, California 94102-6388 Telephone: (415) 441-5544 Facsimile: (415) 441-7586 Email: kbershboyle@hershlaw.com REQUESTED REMEDIES Plaintiff DEMANDS THAT WITHIN THIRTY (30) DAYS you remedy your violations by doing the following: · I. Compensate Plaintiff for all injuries caused by Pacific Fertility and Prelude's failure to disclose that their systems and processes were inadequate to safely store human reproductive tissue, including Plaintiff's resulting emotional distress, mitigation expenses, and the costs of Defendants' services. IL Immediately cease selling services while maintaining systems and processes that are inadequate to safely store human reproductive tissue, until you: a. Allow Plaintiff's counsel to inspect Pacific Fertility and Prelude's current systems and processes; and b. Implement all system and process improvements demanded by Plaintiff's counsel following inspections. ID. Pay into a court-approved escrow account an amount of money sufficient to pay Plaintiff's reasonable attorneys' fees and costs. Hersh & Hersh A Professional.Corporation 601 Van Ness Avenue Suite 2080 San Francisco, CA 94102-6316 Telephone (415) 441-5544 Facsimile (415) 441-7586 www.hersblaw.com HERSHANDHERSH March 1, 2019 Page3 Please contact us within thirty (30) days to discuss Pacific Fertility and Prelude's implementation of these remedies. 11~# Kate Hersli-Boyle · KHB:mbb Hersh & Hersh A Professional Corporation601 Van Ness Avenue Suite 2080 San Francisco, CA 94102-6316 Telephone (415) 441-5544 Facsimile (415) 441-7586 www.hershlaw.com HERSHANDHERSH March 1, 2019 LeRoy Hersh (1920-2003) Nancy Hersh VIA CERTIFIED MAIL Mark E. Burton, Jr. ·Charles C. Kelly, II RETURN RECEIPT REQUESTED Kate Hersh-Boyle Montana Baker Josue Aparicio Prelude Fertility, Inc. c/o April P. Eckardt 1100 Johnson Ferry Rd #200 Atlanta, GA 30342 RE: Notice of Violation of California's Consumers Legal Remedies Act and Demand for Relief, Pursuant to Cal. Civ. Code § 1782 To Who It May Concern: Hersh & Hersh represents Plaintiff E.R. Plaintiff alleges that Pacific Fertility and Prelude engaged in deceptive acts and practices, including by failing to disclose that their storage tank, electronic monitoring, alarm, and response systems and processes were inadequate to safely store Plaintiffs eggs. As a result, on March 4, 2018, Pacific Fertility discovered that the nitrogen levels in a storage tank known as "Tank 4" had dropped to an unsafe level for an undetermined period of time, destroying or jeopardizing the eggs and embryos stored in the tank, including those belonging to Plaintiff. Defendants' conduct violates California consumer protection law, including California's Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq., because Pacific Fertility and Prelude: 1) passed off services as those of another; 2) misrepresented the source of goods or services; 3) misrepresented the affiliation, connection, or association with another; 4) represented that their services had characteristics, uses, and benefits that they did not have; 5) represented that their services were of a particular standard, quality, or grade, when they were not; 6) advertised services with intent not to sell them as advertised; and Hersh & Hersh A Professional Corporation 601 Van Ness Avenue Suite 2080 San Francisco, CA 94102-6316 Telephone (415) 441-5544 Facsimile (415) 441-7586 www.hershlaw.com HERSHANDHERSH March 1, 2019 Page2 7) represented that the subject of a transaction had been supplied in accordance with a previous representation when it had not. See Cal. Civ. Code § 1770. With this letter,our firm, on behalf of Plaintiff, demands that you correct your business practices and take prompt action. Please direct all communications or responses regarding this notice to the following counsel: Kate Hersh-Boyle HERSH & HERSH A Professional Corporation 601 Van Ness Avenue, Suite 2080 San Francisco, California 94102-63 88 Telephone: (415) 441-5544 Facsimile: (415) 441-7586 Email: khershboyle@hershlaw.com REQUESTED REMEDIES Plaintiff DEMANDS THAT WITHIN THIRTY (30) DAYS you remedy your violations by doing the following: I. Compensate Plaintiff for all injuries caused by Pacific Fertility and Prelude's failure to disclose that their systems and processes were inadequate to safely store human reproductive tissue, including Plaintiffs resulting emotional distress, mitigation expenses, and the costs of Defendants' services. II. Immediately cease selling services while maintaining systems and processes that are inadequate to safely store human reproductive