Preview
NANCY HERSH (SBN 49091)
1 KATE HERSH-BOYLE (SBN 278864)
MONTANA BAKER (SBN 319491)
2 HERSH and HERSH
601 Van Ness Avenue, Suite 2080 ELECTRONICALLY
3 San Francisco, CA 94102 F I L E D
Telephone: 1-415-441-5544 Superior Court of California,
4 Facsimile: 1-415-441-7586 County of San Francisco
Attorneys for Plaintiff 03/24/2020
5 Clerk of the Court
CASEY FREITAS BY: ERNALYN BURA
Deputy Clerk
6
7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SAN FRANCISCO
9
CASEY FREITAS, an individual, ) Consolidated Case No. CGC-19-580309
10 )
) Case No. CGC-19-580659
11 Plaintiff, )
) PLAINTIFF’S OPPOSITION TO
12 v. ) DEFENDANTS’ DANIELLE LANE,
)
13 ) M.D., MARK FAN, M.D., and
DANIELLE E. LANE, M.D., an individual; ) DANIELLE E. LANE, M.D., INC. dba
14 MARK FAN, M.D., an individual; ) LANE FERTILITY INSTITUTE
DANIELLE LANE, M.D., INC, A ) MOTION TO STRIKE PORTIONS OF
15 PROFESSIONAL CORPORATION, a ) PLAINTIFF’S COMPLAINT
Corporation; DANIELLE E. LANE, M.D., )
16 INC. DBA LANE FERTILITY INSTITUTE, )
a Corporation; and LANE FERTILITY ) Reservation No. 01290304-06
17 INSTITUTE, a Corporation; and DOES 1 to )
50, inclusive, ) Date: April 7, 2020
18 ) Time: 9:30 a.m.
) Dept: 302
19 Defendants. )
) Judge: Hon. Ethan P. Schulman
20 )
) Complaint Filed: November 8, 2019
21
22 I. INTRODUCTION
23 This case arises out of Defendants’ negligent, intentional and fraudulent conduct, which caused
24 Plaintiff, Casey Freitas, a single parent of four children, to act as a gestational carrier. As a result,
25 Plaintiff went through the invitro fertilization treatment that was emotionally and physically painful
26 and which risked her life and the life of any fetus she might have carried. Defendants filed a motion
27 to strike Plaintiff’s prayer for punitive damages and for relief sought under Plaintiff’s Seventh Cause
28 of Action for Violations of Business and Professions Code section 17200, et. seq. only. Plaintiff has
1
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
1 properly pleaded violations of Business and Professions Code section 17200, et seq. and is therefore
2 entitled to relief that flows therefrom. Plaintiff withdraws her prayer for punitive damages.
3 II. PROCEDURAL HISTORY
4 Plaintiff’s Complaint was filed on November 8, 2019. (Declaration of Nancy Hersh (“Hersh
5 Decl.”), Exhibit A, ¶ 3.) Plaintiff pleaded the following six causes of action against all Defendants:
6 (1) Negligence; (2) Failure to Obtain Informed Consent; (3) Intentional Misrepresentation; (4)
7 Negligent Misrepresentation; (5) Fraudulent Concealment; and (6) Violation of Business &
8 Professions Code § 17200, et seq. Defendants sent Plaintiff a meet and confer letter dated December
9 27, 2019 challenging Plaintiff’s prayer for punitive damages and the sufficiency of the allegations
10 contained in the Complaint regarding the Seventh causes of action for Violation of Business &
11 Professions Code § 17200, et seq. (Hersh Decl., Exhibit B, ¶ 4.) On February 3, 2020, Defendants
12 filed the instant Motion to Strike portions of Plaintiff’s Complaint.
13 On February 10, 2020, the parties agreed and entered into a stipulation to consolidate this action,
14 Freitas v. Danielle E. Lane, M.D., et al., Case No. CGC-19-580659 (“Case B”), with another action
15 before this Court, Rodriguez v. Danielle E. Lane, M.D., et al., Case No. CGC-19580309 (“Case A”).
16 The parties agreed, pursuant to the stipulation, that the two matters present substantially similar
17 issues of law and fact and should be consolidated to avoid unnecessary duplicative efforts. (Hersh
18 Decl., Exhibit C, ¶ 5.) Both cases arise out of Defendants’ fertility care and treatment of a couple
19 and their gestational carrier.
20 On February 11, 2020, this Court heard Defendants’ Motion to Strike in Case A, Rodriguez v.
21 Danielle E. Lane, M.D., et al., Case No. CGC-19580309, and granted Defendants’ Motion to Strike
22 in part, striking the awards of civil penalties provided for in Bus. & Prof. Code §§ 17536 and 17206
23 and the prayer for attorneys’ fees. (Hersh Decl., Exhibit D, ¶ 6.) Plaintiff’s counsel sent a meet and
24 confer letter dated February 27, 2020 offering to stipulate to striking Plaintiff’s Complaint at pg.
25 15:7-12 (the award of civil penalties provided for in Bus. & Prof. Code §§ 17536 and 17206) to
26 comport with the Court’s prior ruling in the Rodriguez v. Danielle E. Lane, M.D., et al., Case No.
27 CGC-19580309. (Hersh Decl., Exhibit E, ¶ 7.) Plaintiff’s counsel received no response from
28 Defendants.
2
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
1 On March 3, 2020, the Court ordered the consolidation of this action, Case B, Freitas v. Danielle
2 E. Lane, M.D., et al., Case No. CGC-19-580659), with Case A, Rodriguez v. Danielle E. Lane, M.D.,
3 et al., Case No. CGC-19580309. (Hersh Decl., Exhibit F, ¶ 8.) On March 18, 2020, Counsel for
4 Plaintiff received a letter from Defendants refusing to take the Motion to Strike off calendar, despite
5 the consolidation of cases. (Hersh Decl., Exhibit G, ¶ 9.) The parties have been unable to reach an
6 agreement settling the pleading to date. (Hersh Decl., ¶ 10.)
7 III. STATEMENT OF FACTS
8 Plaintiff Casey Freitas agreed to act as the gestational carrier for a same sex couple (“the
9 couple”), who desperately wanted to have children. (Complaint, ¶ 11.) On January 14, 2019, the
10 couple and Plaintiff had their initial meeting and consultation with Defendant Dr. Lane and
11 Defendant Dr. Fan, wherein, it was disclosed that Plaintiff, the proposed gestational carrier, had had
12 four children and three prior cesarean sections. (Complaint, ¶¶ 12, 13.) Further, Dr. Lane noted
13 Plaintiff’s uterine scar. (Complaint, ¶ 15.) Defendants knew, but did not disclose to the couple or to
14 Plaintiff, their gestational carrier, the fact that Plaintiff’s 3 prior cesarean sections posed a serious
15 and significant risk of abnormal placentation, hemorrhage and death to her and the fetus. (Complaint,
16 ¶ 13.) Despite the serious and significant risks that disqualified CF as a gestational carrier, Defendant
17 Dr. Lane said she, and her practice, would work with Plaintiff as the gestational carrier and accepted
18 the couple and Plaintiff as their patients. (Complaint, ¶ 14.) Defendants did not disqualify Plaintiff
19 from surrogacy, despite knowing, and concealing from Plaintiff that she was ineligible to be a
20 gestational carrier (Complaint, ¶¶ 15, 22, 25 and 27.)
21 Defendants proceeded with the fertility work-up of Plaintiff, including multiple consults, labs,
22 painful injectable medications, monitoring ultrasounds, sonograms, testing endometrial tissue for
23 implantation receptivity, and other invasive treatments over the course of several months.
24 (Complaint, ¶ 22.) Defendants put Plaintiff’s life at risk so that the couple would pay Defendants a
25 substantial sum for fertility services. (Complaint, ¶ 27.)
26 As a further result of Defendants’ intentional, willful, reckless and negligent conduct, Plaintiff
27 lost wages and income. (Complaint, ¶ 29.) Defendants’ misconduct alleged herein constitutes
28 unlawful business practices, as the term is used in Business and Professions Code section 17200.
3
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
1 (Complaint, ¶ 60.) Defendants’ misconduct is immoral, unethical, oppressive, unscrupulous or
2 substantially injurious to general and target consumers, and by engaging in the unlawful, unfair
3 and/or fraudulent business practices complained of herein, Defendants were able to lower their costs
4 and thereby obtained a competitive advantage over law-abiding businesses with which it competes.
5 (Complaint, ¶ 61, 64.)
6 IV. ARGUMENT
7 a. Legal Standard
8 “A motion to strike…challenges the legal sufficiency of the complaint’s allegations, which
9 are assumed to be true.” (Blakemore v. Sup. Ct. (2005) 129 Cal.App.4th 36, 53.) The Court has
10 discretion, pursuant to Code Civ. Proc. § 436, to strike out any “irrelevant, false, or improper matter
11 inserted in any pleading.” (C.C.P. § 436.) At issue here is whether it is appropriate for the Court to
12 exercise such discretion to strike portions of Plaintiff’s Complaint including Plaintiff’s prayer for
13 punitive damages and request for remedies under Business and Professions Code § 17200 et seq.,
14 and Code Civ. Proc. section 1021.5. As demonstrated below, Plaintiff has pleaded factual allegations
15 that support a request for injunctive relief and attorneys’ fees and, accordingly, the Court should
16 deny Defendants’ Motion to Strike as it pertains to Plaintiff’s prayer for restitution, equitable
17 remedies and attorneys’ fees. Plaintiff withdraws her prayer for punitive damages.
18
b. Plaintiff Has Pleaded Facts to Support A Prayer for Restitution and
19 Equitable Remedies
20 Plaintiff’s cause of action asserted under California Business and Professions Code sections
21 17200, et seq. (Unfair Competition Law, “UCL”) is properly pleaded, as further addressed in
22 Plaintiff’s Opposition to Defendants’ Demurrer, filed concurrently. To properly plead a UCL Claim,
23 Plaintiff must allege an “unlawful, unfair, or fraudulent business act or practice.” (Cal. Bus. & Prof.
24 Code § 17200 et seq.; Cel-Tech Communs., Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th
25 163, 180. Three separate types of business practices or acts are prohibited – unfair, unlawful, or
26 fraudulent (i.e.deceptive) business practices or acts. (Cel-Tech, 20 Cal.4th at 180.) Plaintiff’s
27 Complaint properly pleads a UCL Claim by alleging that Defendants’ business practices are
28 “unlawful” and “fraudulent.” Defendant Dr. Lane and Defendants did not disqualify Plaintiff from
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
1 surrogacy, despite knowing, and concealing from Plaintiff that she was ineligible to be a gestational
2 carrier. (Complaint, ¶¶ 15, 22, 25 and 27.) Because of Defendants’ unlawful and fraudulent conduct,
3 Plaintiff lost wages and income. (Complaint, ¶ 29.) Therefore, Plaintiff is entitled to the following
4 relief pursuant to Business and Professions Code § 17200 et seq.
c. Plaintiff is Entitled to Retain Her Prayer for Restitution and Equitable
5 Remedies Under Business and Professions Code § 17200
6 1. Compensatory Damages
7 While the scope of conduct covered by the Unfair Competition Law (“UCL”) is broad, its
8 remedies are limited. (Cel-Tech Communications v. L.A., (1999) 20 Cal.4th 163, 180.) A UCL
9 action is equitable in nature; damages cannot be recovered. (Bank of the West v. Superior Court
10 (1992) 2 Cal.4th 1254, 1266.) Private individuals [] may win restitution or injunctive relief, but
11 they cannot obtain damages or attorney fees.” (De La Torre v. CashCall, Inc. (2018) 5 Cal.5th
12 966, 993.) Therefore, Plaintiff does not oppose the Court striking Plaintiff’s prayer as it pertains to
13 compensatory damages and attorneys’ fees.
14 2. Restitution
15 “The object of restitution is to restore the status quo by returning to the plaintiff funds in which
16 he or she has an ownership interest.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
17 1134, 1149.) A UCL order for restitution is one “compelling a UCL defendant to return money
18 obtained through an unfair business practice to those persons in interest from whom the property
19 was taken, that is, to persons who had an ownership interest in the property or those claiming through
20 that person.” (Id. at 1144-45.) Therefore, in order for an award of restitution to be appropriate against
21 a defendant in any UCL action, that defendant must hold funds in which plaintiff has an ownership
22 interest. Remedies under section 17203 are equitable and “designed to afford specific relief by
23 requiring disgorgement of the particular property or money taken by an unfair business practice.”
24 (Inline, Inc. v. Apace Moving Systems, Inc. (2005) 125 Cal.App.4th 895, 905.)
25 Plaintiff may recover under the California unfair competition law if: 1) Plaintiff has suffered and
26 injury in fact; and 2) Plaintiff has lost money or property as a result of such unfair competition.
27 (Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 849.) Plaintiff has pleaded facts to support both
28 pongs of this test.
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
1 Plaintiff Has Standing Under Section 17203 As She Has Suffered An Injury In Fact: Plaintiff’s
2 Complaint is replete with factual allegations detailing Defendants’ fraudulent business practices,
3 including but not limited to, Defendants’ misrepresentation that Plaintiff could be a gestational
4 carrier, misrepresentations they made purely for financial gain.
5 Defendants’ argument that Plaintiff received the fertility services she agreed to as a gestational
6 carrier is meritless and inconsistent with the facts contained in Plaintiff’s Complaint. Defendants’
7 reliance on the circumstances in Hall v. Time, Inc. is misplaced. In Hall, the plaintiff expended
8 money and received a book in exchange. (Hall v. Time, Inc. (2008) 158 Cal.App.4th 850, 855.) In
9 Hall, the plaintiff “did not allege he did not want the book, the book was unsatisfactory, or the book
10 was worth less than what he paid for it.” (Id.) The circumstances in Hall are readily distinguishable
11 than the circumstances here. Here, Plaintiff’s Complaint absolutely alleges facts that the fertility
12 services she received were unsatisfactory.
13 Defendants knew, but did not disclose to the couple or to Plaintiff, their gestational carrier, the
14 fact that Plaintiff’s 3 prior cesarean sections posed a serious and significant risk of abnormal
15 placentation, hemorrhage and death to her and the fetus. (Complaint, ¶ 13.) Despite the serious and
16 significant risks that disqualified CF as a gestational carrier, Defendant Dr. Lane said she, and her
17 practice, would work with Plaintiff as the gestational carrier and accepted the couple and Plaintiff
18 as their patients. (Complaint, ¶ 14.) Defendants did not disqualify Plaintiff from surrogacy, despite
19 knowing, and concealing from Plaintiff that she was ineligible to be a gestational carrier (Complaint,
20 ¶¶ 15, 22, 25 and 27.)
21 Defendants proceeded with the fertility work-up of Plaintiff, including multiple consults, labs,
22 painful injectable medications, monitoring ultrasounds, sonograms, testing endometrial tissue for
23 implantation receptivity, and other invasive treatments over the course of several months.
24 (Complaint, ¶ 22.) Defendants put Plaintiff’s life at risk so that the couple would pay Defendants a
25 substantial sum for fertility services. (Complaint, ¶ 27.) Clearly Plaintiff has suffered an injury in
26 fact.
27 Plaintiff Has Lost Money as a Result of Such Unfair Competition: Plaintiff suffered monetary
28 losses and damages, including, lost wages and income. (Complaint, ¶ 29.)
6
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
1 Defendants’ argument that Plaintiff would have undergone the same fertility treatments at
2 another clinic is without merit. Defendants have no factual or legal basis for this argument.
3 Defendants knew, but did not disclose to the couple or to Plaintiff, their gestational carrier, the fact
4 that Plaintiff’s 3 prior cesarean sections posed a serious and significant risk of abnormal
5 placentation, hemorrhage and death to her and the fetus. (Complaint, ¶ 13.) Despite the serious and
6 significant risks that disqualified CF as a gestational carrier, Defendant Dr. Lane said she, and her
7 practice, would work with Plaintiff as the gestational carrier and accepted the couple and Plaintiff
8 as their patients. (Complaint, ¶ 14.) As a result of Defendants’ intentional, willful, reckless and
9 negligent conduct, Plaintiff lost wages and income. (Complaint, ¶ 29.) Plaintiff would not have been
10 in this position absent Defendants’ fraudulent business practices. Therefore, Plaintiff has pleaded
11 facts to support both pongs of this test and is entitled to retain her claims for restitution.
12 3. Equitable Relief
13 Section 17203 states that “Any person may pursue representative claims or relief on behalf of
14 others only if the claimant meets the standing requirements of Section 17204. (Bus & Prof. Code §
15 17203). Section 17204 states that a plaintiff has standing if that person has “suffered injury in fact
16 and has lost money or property as a result of the unfair competition.” (Bus & Prof. Code § 17204).
17 As established above, Plaintiff have pleaded facts to support both pongs of this test, and therefore,
18 has standing under section 17204 to bring a UCL claim. Defendants further claim that Plaintiff lacks
19 standing to seek injunctive relief because Plaintiff is no longer a patient of Defendants’ practice.
20 This argument is meritless. Defendants cite no law supporting their contention that Plaintiff’s patient
21 status has any bearing on the ability to pursue a representative claim and seek equitable relief.
22 Additionally, Plaintiff pleaded sufficient facts to support a claim that Defendants’ operation of
23 their fertility clinic is unfair to the point where it must be stopped. Defendants’ unlawful, unfair and
24 fraudulent business practices, which have already deceived Plaintiff, are likely to deceive other
25 members of the general public and targeted consumers. (Complaint, ¶ 63.) Public injunctive relief
26 under the UCL is relief that has the primary purpose and effect of prohibiting unlawful acts that
27 threaten future injury to the general public. (McGill v. Citibank, N.A. (2017) 2 Cal. 5th 945, 955.)
28 Here, Defendants were able to lower their costs by engaging in fraudulent business practices and
7
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
1 thereby obtained a competitive advantage over law-abiding businesses with which it competes.
2 (Complaint, ¶ 64.) Defendants will continue to do or cause to be done, these illegal acts, unless
3 restrained and enjoined by this Court. (Complaint, ¶ 67.)
4
d. Plaintiff Does Not Oppose Defendants’ Motion to Strike as it Pertains to
5 Civil Penalties Only
6 Civil penalties are available under the UCL only in government enforcement actions. (Cal. Bus.
7 & Prof. Code § 17206(a).) Therefore, Plaintiff does not oppose the Court striking Plaintiff’s prayer
8 as it pertains to civil penalties only.
9
10 e. Plaintiff Does Not Oppose Defendants’ Motion to Strike as it Pertains to
Her Prayer for Attorneys’ Fees Pursuant to Code of Civil Procedure
11 1021.5 Only
12 “The UCL, while broad in scope, is limited in remedies. [Citations.] Private individuals []
13 may win restitution or injunctive relief, but they cannot obtain damages or attorney fees.” (De La
14 Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 993.) Therefore, Plaintiff does not oppose the Court
15 striking Plaintiff’s prayer as it pertains to attorneys’ fees only.
16 V. CONCLUSION
17 Plaintiff has adequately pleaded her cause of action for Violations of Business and
18 Professions Code § 17200, et seq., and is therefore entitled to retain their prayer for restitution,
19 equitable remedies and attorneys’ fees. Defendants’ motion to strike must be DENIED.
20
DATED: March 24, 2020 HERSH & HERSH
21 A Professional Corporation
22
23
By:
24 Nancy Hersh
Attorneys for Plaintiff
25
26
27
28
8
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
PROOF OF SERVICE
I, LAUREN DIAZ, declare:
I am employed in the City and County of San Francisco, California. I am over the age
of 18 years and not a party to the within cause; my business address is 601 Van Ness Avenue,
Suite 2080, San Francisco, California 94102-6316.
On March 24, 2020, I served the following documents in said action:
1. Plaintiff’s Opposition to Defendants’ Danielle Lane, M.D., Mark Fan, M.D., and
Danielle E. Lane, M.D., Inc. dba Lane Fertility Institute Motion to Strike Portions of
Plaintiff’s Complaint
2. Declaration of Nancy Hersh in Support of Plaintiff’s Opposition to Defendants’ Motion
to Strike Portions of Plaintiff’s Complaint
by e-mailing a true copy thereof to:
John L. Supple
Robert R. Deering
Madeleine Lough-Stevens
J SUPPLE LAW
990 Fifth Avenue
San Rafael, CA 94901
Telephone: 1-415-366-5533
Facsimile: 1-415-480-6301
E-mail: jsupple@jsupplelaw.com
rdeering@jsupplelaw.com
mlough-stevens@jsupplelaw.com
Attorneys for Defendants
The document(s) were served by the following means:
X (BY ELECTRONIC SERVICE) Based on a court order or an agreement of the
parties to accept electronic service, I caused the documents to be sent to the persons at
the electronic service addresses listed above.
I declare under penalty of perjury that the above is true and correct. Executed on
March 24, 2020 at San Francisco, California.
/s/ LAUREN DIAZ
LAUREN DIAZ
Preview
NANCY HERSH (SBN 49091) 1 KATE HERSH-BOYLE (SBN 278864) MONTANA BAKER (SBN 319491) 2 HERSH and HERSH 601 Van Ness Avenue, Suite 2080 ELECTRONICALLY 3 San Francisco, CA 94102 F I L E D Telephone: 1-415-441-5544 Superior Court of California, 4 Facsimile: 1-415-441-7586 County of San Francisco Attorneys for Plaintiff 03/24/2020 5 Clerk of the Court CASEY FREITAS BY: ERNALYN BURA Deputy Clerk 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SAN FRANCISCO 9 CASEY FREITAS, an individual, ) Consolidated Case No. CGC-19-580309 10 ) ) Case No. CGC-19-580659 11 Plaintiff, ) ) PLAINTIFF’S OPPOSITION TO 12 v. ) DEFENDANTS’ DANIELLE LANE, ) 13 ) M.D., MARK FAN, M.D., and DANIELLE E. LANE, M.D., an individual; ) DANIELLE E. LANE, M.D., INC. dba 14 MARK FAN, M.D., an individual; ) LANE FERTILITY INSTITUTE DANIELLE LANE, M.D., INC, A ) MOTION TO STRIKE PORTIONS OF 15 PROFESSIONAL CORPORATION, a ) PLAINTIFF’S COMPLAINT Corporation; DANIELLE E. LANE, M.D., ) 16 INC. DBA LANE FERTILITY INSTITUTE, ) a Corporation; and LANE FERTILITY ) Reservation No. 01290304-06 17 INSTITUTE, a Corporation; and DOES 1 to ) 50, inclusive, ) Date: April 7, 2020 18 ) Time: 9:30 a.m. ) Dept: 302 19 Defendants. ) ) Judge: Hon. Ethan P. Schulman 20 ) ) Complaint Filed: November 8, 2019 21 22 I. INTRODUCTION 23 This case arises out of Defendants’ negligent, intentional and fraudulent conduct, which caused 24 Plaintiff, Casey Freitas, a single parent of four children, to act as a gestational carrier. As a result, 25 Plaintiff went through the invitro fertilization treatment that was emotionally and physically painful 26 and which risked her life and the life of any fetus she might have carried. Defendants filed a motion 27 to strike Plaintiff’s prayer for punitive damages and for relief sought under Plaintiff’s Seventh Cause 28 of Action for Violations of Business and Professions Code section 17200, et. seq. only. Plaintiff has 1 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 properly pleaded violations of Business and Professions Code section 17200, et seq. and is therefore 2 entitled to relief that flows therefrom. Plaintiff withdraws her prayer for punitive damages. 3 II. PROCEDURAL HISTORY 4 Plaintiff’s Complaint was filed on November 8, 2019. (Declaration of Nancy Hersh (“Hersh 5 Decl.”), Exhibit A, ¶ 3.) Plaintiff pleaded the following six causes of action against all Defendants: 6 (1) Negligence; (2) Failure to Obtain Informed Consent; (3) Intentional Misrepresentation; (4) 7 Negligent Misrepresentation; (5) Fraudulent Concealment; and (6) Violation of Business & 8 Professions Code § 17200, et seq. Defendants sent Plaintiff a meet and confer letter dated December 9 27, 2019 challenging Plaintiff’s prayer for punitive damages and the sufficiency of the allegations 10 contained in the Complaint regarding the Seventh causes of action for Violation of Business & 11 Professions Code § 17200, et seq. (Hersh Decl., Exhibit B, ¶ 4.) On February 3, 2020, Defendants 12 filed the instant Motion to Strike portions of Plaintiff’s Complaint. 13 On February 10, 2020, the parties agreed and entered into a stipulation to consolidate this action, 14 Freitas v. Danielle E. Lane, M.D., et al., Case No. CGC-19-580659 (“Case B”), with another action 15 before this Court, Rodriguez v. Danielle E. Lane, M.D., et al., Case No. CGC-19580309 (“Case A”). 16 The parties agreed, pursuant to the stipulation, that the two matters present substantially similar 17 issues of law and fact and should be consolidated to avoid unnecessary duplicative efforts. (Hersh 18 Decl., Exhibit C, ¶ 5.) Both cases arise out of Defendants’ fertility care and treatment of a couple 19 and their gestational carrier. 20 On February 11, 2020, this Court heard Defendants’ Motion to Strike in Case A, Rodriguez v. 21 Danielle E. Lane, M.D., et al., Case No. CGC-19580309, and granted Defendants’ Motion to Strike 22 in part, striking the awards of civil penalties provided for in Bus. & Prof. Code §§ 17536 and 17206 23 and the prayer for attorneys’ fees. (Hersh Decl., Exhibit D, ¶ 6.) Plaintiff’s counsel sent a meet and 24 confer letter dated February 27, 2020 offering to stipulate to striking Plaintiff’s Complaint at pg. 25 15:7-12 (the award of civil penalties provided for in Bus. & Prof. Code §§ 17536 and 17206) to 26 comport with the Court’s prior ruling in the Rodriguez v. Danielle E. Lane, M.D., et al., Case No. 27 CGC-19580309. (Hersh Decl., Exhibit E, ¶ 7.) Plaintiff’s counsel received no response from 28 Defendants. 2 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 On March 3, 2020, the Court ordered the consolidation of this action, Case B, Freitas v. Danielle 2 E. Lane, M.D., et al., Case No. CGC-19-580659), with Case A, Rodriguez v. Danielle E. Lane, M.D., 3 et al., Case No. CGC-19580309. (Hersh Decl., Exhibit F, ¶ 8.) On March 18, 2020, Counsel for 4 Plaintiff received a letter from Defendants refusing to take the Motion to Strike off calendar, despite 5 the consolidation of cases. (Hersh Decl., Exhibit G, ¶ 9.) The parties have been unable to reach an 6 agreement settling the pleading to date. (Hersh Decl., ¶ 10.) 7 III. STATEMENT OF FACTS 8 Plaintiff Casey Freitas agreed to act as the gestational carrier for a same sex couple (“the 9 couple”), who desperately wanted to have children. (Complaint, ¶ 11.) On January 14, 2019, the 10 couple and Plaintiff had their initial meeting and consultation with Defendant Dr. Lane and 11 Defendant Dr. Fan, wherein, it was disclosed that Plaintiff, the proposed gestational carrier, had had 12 four children and three prior cesarean sections. (Complaint, ¶¶ 12, 13.) Further, Dr. Lane noted 13 Plaintiff’s uterine scar. (Complaint, ¶ 15.) Defendants knew, but did not disclose to the couple or to 14 Plaintiff, their gestational carrier, the fact that Plaintiff’s 3 prior cesarean sections posed a serious 15 and significant risk of abnormal placentation, hemorrhage and death to her and the fetus. (Complaint, 16 ¶ 13.) Despite the serious and significant risks that disqualified CF as a gestational carrier, Defendant 17 Dr. Lane said she, and her practice, would work with Plaintiff as the gestational carrier and accepted 18 the couple and Plaintiff as their patients. (Complaint, ¶ 14.) Defendants did not disqualify Plaintiff 19 from surrogacy, despite knowing, and concealing from Plaintiff that she was ineligible to be a 20 gestational carrier (Complaint, ¶¶ 15, 22, 25 and 27.) 21 Defendants proceeded with the fertility work-up of Plaintiff, including multiple consults, labs, 22 painful injectable medications, monitoring ultrasounds, sonograms, testing endometrial tissue for 23 implantation receptivity, and other invasive treatments over the course of several months. 24 (Complaint, ¶ 22.) Defendants put Plaintiff’s life at risk so that the couple would pay Defendants a 25 substantial sum for fertility services. (Complaint, ¶ 27.) 26 As a further result of Defendants’ intentional, willful, reckless and negligent conduct, Plaintiff 27 lost wages and income. (Complaint, ¶ 29.) Defendants’ misconduct alleged herein constitutes 28 unlawful business practices, as the term is used in Business and Professions Code section 17200. 3 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 (Complaint, ¶ 60.) Defendants’ misconduct is immoral, unethical, oppressive, unscrupulous or 2 substantially injurious to general and target consumers, and by engaging in the unlawful, unfair 3 and/or fraudulent business practices complained of herein, Defendants were able to lower their costs 4 and thereby obtained a competitive advantage over law-abiding businesses with which it competes. 5 (Complaint, ¶ 61, 64.) 6 IV. ARGUMENT 7 a. Legal Standard 8 “A motion to strike…challenges the legal sufficiency of the complaint’s allegations, which 9 are assumed to be true.” (Blakemore v. Sup. Ct. (2005) 129 Cal.App.4th 36, 53.) The Court has 10 discretion, pursuant to Code Civ. Proc. § 436, to strike out any “irrelevant, false, or improper matter 11 inserted in any pleading.” (C.C.P. § 436.) At issue here is whether it is appropriate for the Court to 12 exercise such discretion to strike portions of Plaintiff’s Complaint including Plaintiff’s prayer for 13 punitive damages and request for remedies under Business and Professions Code § 17200 et seq., 14 and Code Civ. Proc. section 1021.5. As demonstrated below, Plaintiff has pleaded factual allegations 15 that support a request for injunctive relief and attorneys’ fees and, accordingly, the Court should 16 deny Defendants’ Motion to Strike as it pertains to Plaintiff’s prayer for restitution, equitable 17 remedies and attorneys’ fees. Plaintiff withdraws her prayer for punitive damages. 18 b. Plaintiff Has Pleaded Facts to Support A Prayer for Restitution and 19 Equitable Remedies 20 Plaintiff’s cause of action asserted under California Business and Professions Code sections 21 17200, et seq. (Unfair Competition Law, “UCL”) is properly pleaded, as further addressed in 22 Plaintiff’s Opposition to Defendants’ Demurrer, filed concurrently. To properly plead a UCL Claim, 23 Plaintiff must allege an “unlawful, unfair, or fraudulent business act or practice.” (Cal. Bus. & Prof. 24 Code § 17200 et seq.; Cel-Tech Communs., Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 25 163, 180. Three separate types of business practices or acts are prohibited – unfair, unlawful, or 26 fraudulent (i.e.deceptive) business practices or acts. (Cel-Tech, 20 Cal.4th at 180.) Plaintiff’s 27 Complaint properly pleads a UCL Claim by alleging that Defendants’ business practices are 28 “unlawful” and “fraudulent.” Defendant Dr. Lane and Defendants did not disqualify Plaintiff from 4 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 surrogacy, despite knowing, and concealing from Plaintiff that she was ineligible to be a gestational 2 carrier. (Complaint, ¶¶ 15, 22, 25 and 27.) Because of Defendants’ unlawful and fraudulent conduct, 3 Plaintiff lost wages and income. (Complaint, ¶ 29.) Therefore, Plaintiff is entitled to the following 4 relief pursuant to Business and Professions Code § 17200 et seq. c. Plaintiff is Entitled to Retain Her Prayer for Restitution and Equitable 5 Remedies Under Business and Professions Code § 17200 6 1. Compensatory Damages 7 While the scope of conduct covered by the Unfair Competition Law (“UCL”) is broad, its 8 remedies are limited. (Cel-Tech Communications v. L.A., (1999) 20 Cal.4th 163, 180.) A UCL 9 action is equitable in nature; damages cannot be recovered. (Bank of the West v. Superior Court 10 (1992) 2 Cal.4th 1254, 1266.) Private individuals [] may win restitution or injunctive relief, but 11 they cannot obtain damages or attorney fees.” (De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 12 966, 993.) Therefore, Plaintiff does not oppose the Court striking Plaintiff’s prayer as it pertains to 13 compensatory damages and attorneys’ fees. 14 2. Restitution 15 “The object of restitution is to restore the status quo by returning to the plaintiff funds in which 16 he or she has an ownership interest.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 17 1134, 1149.) A UCL order for restitution is one “compelling a UCL defendant to return money 18 obtained through an unfair business practice to those persons in interest from whom the property 19 was taken, that is, to persons who had an ownership interest in the property or those claiming through 20 that person.” (Id. at 1144-45.) Therefore, in order for an award of restitution to be appropriate against 21 a defendant in any UCL action, that defendant must hold funds in which plaintiff has an ownership 22 interest. Remedies under section 17203 are equitable and “designed to afford specific relief by 23 requiring disgorgement of the particular property or money taken by an unfair business practice.” 24 (Inline, Inc. v. Apace Moving Systems, Inc. (2005) 125 Cal.App.4th 895, 905.) 25 Plaintiff may recover under the California unfair competition law if: 1) Plaintiff has suffered and 26 injury in fact; and 2) Plaintiff has lost money or property as a result of such unfair competition. 27 (Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 849.) Plaintiff has pleaded facts to support both 28 pongs of this test. 5 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 Plaintiff Has Standing Under Section 17203 As She Has Suffered An Injury In Fact: Plaintiff’s 2 Complaint is replete with factual allegations detailing Defendants’ fraudulent business practices, 3 including but not limited to, Defendants’ misrepresentation that Plaintiff could be a gestational 4 carrier, misrepresentations they made purely for financial gain. 5 Defendants’ argument that Plaintiff received the fertility services she agreed to as a gestational 6 carrier is meritless and inconsistent with the facts contained in Plaintiff’s Complaint. Defendants’ 7 reliance on the circumstances in Hall v. Time, Inc. is misplaced. In Hall, the plaintiff expended 8 money and received a book in exchange. (Hall v. Time, Inc. (2008) 158 Cal.App.4th 850, 855.) In 9 Hall, the plaintiff “did not allege he did not want the book, the book was unsatisfactory, or the book 10 was worth less than what he paid for it.” (Id.) The circumstances in Hall are readily distinguishable 11 than the circumstances here. Here, Plaintiff’s Complaint absolutely alleges facts that the fertility 12 services she received were unsatisfactory. 13 Defendants knew, but did not disclose to the couple or to Plaintiff, their gestational carrier, the 14 fact that Plaintiff’s 3 prior cesarean sections posed a serious and significant risk of abnormal 15 placentation, hemorrhage and death to her and the fetus. (Complaint, ¶ 13.) Despite the serious and 16 significant risks that disqualified CF as a gestational carrier, Defendant Dr. Lane said she, and her 17 practice, would work with Plaintiff as the gestational carrier and accepted the couple and Plaintiff 18 as their patients. (Complaint, ¶ 14.) Defendants did not disqualify Plaintiff from surrogacy, despite 19 knowing, and concealing from Plaintiff that she was ineligible to be a gestational carrier (Complaint, 20 ¶¶ 15, 22, 25 and 27.) 21 Defendants proceeded with the fertility work-up of Plaintiff, including multiple consults, labs, 22 painful injectable medications, monitoring ultrasounds, sonograms, testing endometrial tissue for 23 implantation receptivity, and other invasive treatments over the course of several months. 24 (Complaint, ¶ 22.) Defendants put Plaintiff’s life at risk so that the couple would pay Defendants a 25 substantial sum for fertility services. (Complaint, ¶ 27.) Clearly Plaintiff has suffered an injury in 26 fact. 27 Plaintiff Has Lost Money as a Result of Such Unfair Competition: Plaintiff suffered monetary 28 losses and damages, including, lost wages and income. (Complaint, ¶ 29.) 6 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 Defendants’ argument that Plaintiff would have undergone the same fertility treatments at 2 another clinic is without merit. Defendants have no factual or legal basis for this argument. 3 Defendants knew, but did not disclose to the couple or to Plaintiff, their gestational carrier, the fact 4 that Plaintiff’s 3 prior cesarean sections posed a serious and significant risk of abnormal 5 placentation, hemorrhage and death to her and the fetus. (Complaint, ¶ 13.) Despite the serious and 6 significant risks that disqualified CF as a gestational carrier, Defendant Dr. Lane said she, and her 7 practice, would work with Plaintiff as the gestational carrier and accepted the couple and Plaintiff 8 as their patients. (Complaint, ¶ 14.) As a result of Defendants’ intentional, willful, reckless and 9 negligent conduct, Plaintiff lost wages and income. (Complaint, ¶ 29.) Plaintiff would not have been 10 in this position absent Defendants’ fraudulent business practices. Therefore, Plaintiff has pleaded 11 facts to support both pongs of this test and is entitled to retain her claims for restitution. 12 3. Equitable Relief 13 Section 17203 states that “Any person may pursue representative claims or relief on behalf of 14 others only if the claimant meets the standing requirements of Section 17204. (Bus & Prof. Code § 15 17203). Section 17204 states that a plaintiff has standing if that person has “suffered injury in fact 16 and has lost money or property as a result of the unfair competition.” (Bus & Prof. Code § 17204). 17 As established above, Plaintiff have pleaded facts to support both pongs of this test, and therefore, 18 has standing under section 17204 to bring a UCL claim. Defendants further claim that Plaintiff lacks 19 standing to seek injunctive relief because Plaintiff is no longer a patient of Defendants’ practice. 20 This argument is meritless. Defendants cite no law supporting their contention that Plaintiff’s patient 21 status has any bearing on the ability to pursue a representative claim and seek equitable relief. 22 Additionally, Plaintiff pleaded sufficient facts to support a claim that Defendants’ operation of 23 their fertility clinic is unfair to the point where it must be stopped. Defendants’ unlawful, unfair and 24 fraudulent business practices, which have already deceived Plaintiff, are likely to deceive other 25 members of the general public and targeted consumers. (Complaint, ¶ 63.) Public injunctive relief 26 under the UCL is relief that has the primary purpose and effect of prohibiting unlawful acts that 27 threaten future injury to the general public. (McGill v. Citibank, N.A. (2017) 2 Cal. 5th 945, 955.) 28 Here, Defendants were able to lower their costs by engaging in fraudulent business practices and 7 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 1 thereby obtained a competitive advantage over law-abiding businesses with which it competes. 2 (Complaint, ¶ 64.) Defendants will continue to do or cause to be done, these illegal acts, unless 3 restrained and enjoined by this Court. (Complaint, ¶ 67.) 4 d. Plaintiff Does Not Oppose Defendants’ Motion to Strike as it Pertains to 5 Civil Penalties Only 6 Civil penalties are available under the UCL only in government enforcement actions. (Cal. Bus. 7 & Prof. Code § 17206(a).) Therefore, Plaintiff does not oppose the Court striking Plaintiff’s prayer 8 as it pertains to civil penalties only. 9 10 e. Plaintiff Does Not Oppose Defendants’ Motion to Strike as it Pertains to Her Prayer for Attorneys’ Fees Pursuant to Code of Civil Procedure 11 1021.5 Only 12 “The UCL, while broad in scope, is limited in remedies. [Citations.] Private individuals [] 13 may win restitution or injunctive relief, but they cannot obtain damages or attorney fees.” (De La 14 Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 993.) Therefore, Plaintiff does not oppose the Court 15 striking Plaintiff’s prayer as it pertains to attorneys’ fees only. 16 V. CONCLUSION 17 Plaintiff has adequately pleaded her cause of action for Violations of Business and 18 Professions Code § 17200, et seq., and is therefore entitled to retain their prayer for restitution, 19 equitable remedies and attorneys’ fees. Defendants’ motion to strike must be DENIED. 20 DATED: March 24, 2020 HERSH & HERSH 21 A Professional Corporation 22 23 By: 24 Nancy Hersh Attorneys for Plaintiff 25 26 27 28 8 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT PROOF OF SERVICE I, LAUREN DIAZ, declare: I am employed in the City and County of San Francisco, California. I am over the age of 18 years and not a party to the within cause; my business address is 601 Van Ness Avenue, Suite 2080, San Francisco, California 94102-6316. On March 24, 2020, I served the following documents in said action: 1. Plaintiff’s Opposition to Defendants’ Danielle Lane, M.D., Mark Fan, M.D., and Danielle E. Lane, M.D., Inc. dba Lane Fertility Institute Motion to Strike Portions of Plaintiff’s Complaint 2. Declaration of Nancy Hersh in Support of Plaintiff’s Opposition to Defendants’ Motion to Strike Portions of Plaintiff’s Complaint by e-mailing a true copy thereof to: John L. Supple Robert R. Deering Madeleine Lough-Stevens J SUPPLE LAW 990 Fifth Avenue San Rafael, CA 94901 Telephone: 1-415-366-5533 Facsimile: 1-415-480-6301 E-mail: jsupple@jsupplelaw.com rdeering@jsupplelaw.com mlough-stevens@jsupplelaw.com Attorneys for Defendants The document(s) were served by the following means: X (BY ELECTRONIC SERVICE) Based on a court order or an agreement of the parties to accept electronic service, I caused the documents to be sent to the persons at the electronic service addresses listed above. I declare under penalty of perjury that the above is true and correct. Executed on March 24, 2020 at San Francisco, California. /s/ LAUREN DIAZ LAUREN DIAZ