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1 NANCY HERSH (SBN 49091)
KATE HERSH-BOYLE (SBN 278864)
2 MONTANA BAKER (SBN 319491)
HERSH and HERSH ELECTRONICALLY
3 601 Van Ness Avenue, Suite 2080 F I L E D
San Francisco, CA 94102 Superior Court of California,
4 Telephone: 1-415-441-5544 County of San Francisco
Facsimile: 1-415-441-7586
03/24/2020
5 Clerk of the Court
Attorneys for Plaintiff BY: ERNALYN BURA
6 CASEY FREITAS Deputy Clerk
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
9
10 CASEY FREITAS, an individual, ) Consolidated Case No. CGC-19-580309
)
11 ) Case No. CGC-19-580659
Plaintiff, )
12 ) DECLARATION OF NANCY HERSH
v. ) IN SUPPORT OF PLAINTIFF’S
13 ) OPPOSITION TO DEFENDANTS’
) DEMURRER TO PLAINTIFF’S
14 DANIELLE E. LANE, M.D., an individual; ) COMPLAINT
MARK FAN, M.D., an individual; )
15 DANIELLE LANE, M.D., INC, A ) Reservation No. 01290304-06
PROFESSIONAL CORPORATION, a )
16 Corporation; DANIELLE E. LANE, M.D., ) Date: April 7, 2020
INC. DBA LANE FERTILITY INSTITUTE, ) Time: 9:30 a.m.
17 a Corporation; and LANE FERTILITY ) Dept: 302
INSTITUTE, a Corporation; and DOES 1 to ) Judge: Hon. Ethan P. Schulman
18 50, inclusive, )
) Complaint Filed: November 8, 2019
19 )
Defendants. )
20 )
)
21 )
22
I, NANCY HERSH, declare as follows:
23
1. I am an attorney licensed to practice before all Courts of the State of California and
24
a partner in the law firm of Hersh & Hersh, located at 601 Van Ness Avenue, Suite 2080, San
25
Francisco, attorneys for Plaintiff in the above-entitled matter.
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1
DECLARATION OF NANCY HERSH IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
TO PLAINTIFF’S COMPLAINT
1 2. The matters referred to in this declaration are based upon my personal knowledge,
2 except where otherwise indicated and, if called as a witness, I could and would testify competently
3 thereto.
4 3. Plaintiff’s Complaint was filed on November 8, 2019. Attached hereto as Exhibit A
5 is a true and correct copy of Plaintiff’s Complaint.
6 4. Defendants sent Plaintiff a meet and confer letter dated December 27, 2019
7 challenging the sufficiency of the allegations contained in the Complaint regarding the Second,
8 Third, Fourth, Fifth and Sixth causes of action. Attached hereto as Exhibit B is a true and correct
9 copy of Defendants’ meet and confer letter dated December 27, 2019.
10 5. On February 10, 2020, the parties agreed and entered into a stipulation to consolidate
11 this action, Freitas v. Danielle E. Lane, M.D., et al., Case No. CGC-19-580659 (“Case B”), with
12 another action before this Court, Rodriguez v. Danielle E. Lane, M.D., et al., Case No. CGC-
13 19580309 (“Case A”). The parties agreed, pursuant to the stipulation, that the two matters present
14 substantially similar issues of law and fact and should be consolidated to avoid unnecessary
15 duplicative efforts. Attached hereto as Exhibit C is a true and correct copy of the parties Stipulation
16 to Consolidate Cases.
17 6. On February 11, 2020, this Court heard Defendants’ Demurrer in Case A, Rodriguez
18 v. Danielle E. Lane, M.D., et al., Case No. CGC-19580309, and overruled Defendants’ Demurrer in
19 its entirety. Attached hereto as Exhibit D is a true and correct copy of the Court’s Order denying in
20 full Defendants’ Demurrer.
21 7. Based on this Court’s Order in Case A and the parties stipulation to consolidate the
22 matters, Plaintiff’s counsel sent a letter dated February 27, 2020 to Defendants requesting that
23 Defendants’ Demurrer to this matter, Case B, be taken off calendar as a waste of judicial resources.
24 Attached hereto as Exhibit E is a true and correct copy of Plaintiff’s letter dated February 27, 2020.
25 8. On March 3, 2020, the Court ordered the consolidation of this action, Case B, Freitas
26 v. Danielle E. Lane, M.D., et al., Case No. CGC-19-580659), with Case A, Rodriguez v. Danielle E.
27 Lane, M.D., et al., Case No. CGC-19580309. Attached hereto as Exhibit F is a true and correct copy
28 of the Court’s Order.
2
DECLARATION OF NANCY HERSH IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
TO PLAINTIFF’S COMPLAINT
1 9. On March 18, 2020, once again, Plaintiff’s counsel requested that Defendants take
2 the instant Demurrer off calendar as a waste of judicial resources. Attached hereto as Exhibit G is
3 a true and correct copy of Nancy Hersh’s email correspondence to Defendants’ counsel on March
4 18, 2020.
5 10. That same day, Counsel for Plaintiff received a letter from Defendants refusing to
6 take the demurrer off calendar, agreeing to “withdraw the demurrer as to the ‘Failure to Obtain
7 Informed Consent’ cause of action only.” Attached hereto as Exhibit H is a true and correct copy
8 of Defense counsel’s email correspondence to Plaintiff’s counsel on March 18, 2020.
9 11. The parties have been unable to reach an agreement settling the pleading to date.
10 12. Defendants Demurrer is without merit and therefore Plaintiff now requests the Court
11 grant Plaintiff $3,750.00 in reasonable attorneys’ fees and costs against Defendant. My associate,
12 Montana Baker, worked 10 hours drafting this Opposition and the accompanying documents at an
13 hourly rate of $375.00.
14
15 I declare under penalty of perjury under the laws of the State of California that the
16 foregoing is true and correct.
17
18 Executed this 23th day of March 2020 in San Francisco, California.
19
20
_________________________________
21 NANCY HERSH
22
23
24
25
26
27
28
3
DECLARATION OF NANCY HERSH IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
TO PLAINTIFF’S COMPLAINT
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
Subject: Feitas v. Lane tal.
Date: Wednesday, March 18, 2020 at 9:53:43 AM Pacific Daylight Time
From: Nancy Hersh
To: Rob Deering
CC: Lauren Diaz, Montana Baker, Madeleine Lough-Stevens
Rob,
We are preparing the OpposiRon to your demurrer in the referenced case. As you know, the same demurrer
was filed in the Williams Rodriguez case and you lost except for porRons of the moRon to strike re the B&P
Code. We have previously offered to sRp to the same Order but have received no response so are forced to
proceed. We are going to request sancRons due to the foregoing. If you wish to sRp as previously requested,
please advise now as we have to complete and file the Opp.
Nancy Hersh
***********************************************************
The informaRon in this e-mail is confidenRal and may be legally
privileged. It is intended solely for the addressee. Access to this
e-mail by anyone other than the intended recipient is unauthorized.
If you receive this email in error, please noRfy sender immediately.
***********************************************************
NANCY HERSH
HERSH & HERSH, A Professional CorporaRon
2080 Opera Plaza, 601 Van Ness Avenue
San Francisco, CA 94102-6388
Phone: 415.441.5544; Fax: 415.441.7586
EXHIBIT H
J SUPPLE LAW
A PROFESSIONAL CORPORATION
Madeleine Lough-Stevens
MLough-Stevens@jsupplelaw.com
March 18, 2020
Via Email
nhersh@hershlaw.com
khershboyle@hershlaw.com
mbaker@hershlaw.com
Nancy Hersh, Esq.
Kate Hersh-Boyle, Esq.
Montana Baker, Esq.
HERSH & HERSH
601 Van Ness Avenue, Suite 2080
San Francisco, CA 94102
Re: Patrick and Claudious Williams Rodriguez v. Danielle E. Lane, M.D.
Casey Freitas v. Danielle E. Lane, M.D.
Dear Counsel:
Please allow this correspondence to serve as Defendants’ response to Plaintiffs’
correspondence of February 27, 2020, requesting the Freitas Demurrer and Motion to Strike be taken
off calendar. As an initial matter, Defendants agree to withdraw the demurrer as to the “Failure to
Obtain Informed Consent” cause of action only. However, for the reasons highlighted herein, it is
Defendants’ position the remaining causes of action alleged in the Freitas Complaint contain unique
issues unrelated to Defendants’ Demurrer and Motion to Strike in Rodriguez, and as such, the Freitas
Complaint remains appropriate for an independent Demurrer and Motion to Strike.
Causes of Action for Intentional Misrepresentation, Negligent Misrepresentation, and
Fraudulent Concealment
The Freitas Complaint fails to allege facts sufficient to support intentional misrepresentation,
negligent misrepresentation, or fraudulent concealment as it specifically pertains to Ms. Freitas. The
elements of fraud are: (a) misrepresentation, (b) knowledge of falsity, (c) intent to defraud, i.e., to
induce reliance; (d) justifiable reliance; and (e) resulting damage. (See, Lazar v. Superior Court
(1996) 12 Cal.4th 631, 638.) As you may know, fraud cases of action must be pled with specificity,
i.e., facts sufficient to show “how, when, where, to whom, and by what means the [fraudulent]
representations were tendered.” (Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 167, 184.) Thus,
in order to plead a cause of action for fraud, “[e]very element of the cause of action for fraud must be
alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient
specificity to allow defendant to understand fully the nature of the charge made.” (Roberts v. Ball,
Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.)
990 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901
T. 415.366.5533
F. 415.480.6301
WWW.JSUPPLELAW.COM
Nancy Hersh, Esq.
Kate Hersh-Boyle, Esq.
Montana Baker, Esq.
March 18, 2020
Page 2
Here, as support for these causes of action, Ms. Freitas claims the allegedly fraudulent
representations were that Defendants “knew that [Plaintiff] should not become pregnant,” and that
the representation that Plaintiff could be the gestational carrier for “the couple” was made “with the
intent to induce the couple to engage Defendants for fertility services,” (Complaint, ¶¶ 39, 40.) This
is completely insufficient. Essentially, Ms. Freitas argues the allegedly fraudulent statements were
designed to induce reliance by the couple and thereby caused damage to them – not Ms. Freitas. There
are no facts alleged in the Complaint support this cause of action as to how Ms. Freitas’ alleged
reliance on any fraudulent representations were made to induce her reliance – instead, the facts focus
on the alleged induced reliance of “the couple.” It is undisputed that whether or not “the couple” were
induced to rely on the statements, Ms. Freitas still needs to allege facts sufficient to support this cause
of action in her individual capacity. Based on the facts alleged in the complaint, Ms. Freitas is unable
to support the strict fraud pleading requirements as it pertains to her individual claims. Thus, these
fraud cause of actions remain subject to demurrer.
Violation of B&P section 17200
Simply put, Ms. Freitas does not have standing to bring this cause of action. An individual
has standing to bring a UCL claim only if that individual (1) “has suffered injury in fact,” and (2)
“has lost money or property as a result of such unfair competition.” (Hall v. Time, Inc. (2008) 158
Cal.App.4th 847, 852; see Bus. & Prof. Code § 17204.) While Ms. Freitas might be able to argue that
she suffered injury related to the injections, the miscarriage, and residual bleeding after the
miscarriage, she cannot show that she has lost money or property as a result of the unfair competition.
While she may allege that she lost “wages,” California case law is clear that very few monetary
injuries will satisfy this requirement. These include 1) expending money due to the defendant’s acts
of unfair competition (Aron v. U–Haul Co. of California (2006) 143 Cal.App.4th 796, 802–803); 2)
lost money or property through third party actions (see Huntingdon Life Sciences, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1240, 1262 [plaintiff's home
and car were vandalized by animal rights protestors]) or; 3) been denied money to which he or she
has a cognizable claim, such as an insurance claim (see Progressive West Ins. Co. v. Superior Court
(2005) 135 Cal.App.4th 263, 269–270, 285, fn. 5.) It is undisputed that “lost wages” does not fall
into any of these categories.
Thus here, Ms. Freitas fails to meet the first criteria, as she does not allege that she suffered
an injury in fact under any of these three elements. Instead, Plaintiff alleges Defendants accepted her
as a gestational carrier for the couple “purely for financial gain and economic benefit with conscious
disregard of the risk to her and the fetus” and “so that the couple would pay Defendants for fertility
services, for which they should not have been charged.” (Complaint ¶ 27 [emphasis added].) Again,
the fact that “the couple” suffered an alleged injury in fact and allegedly lost money or property is
immaterial to Ms. Freitas’ personal cause of action. As she has not alleged facts sufficient to support
the first prong of this test, she does not have standing to bring this cause of action.
For these reasons, this cause of action is subject to a demurrer, as well as a motion to strike
for the inappropriate prayers for relief, including injunctive relief, civil penalties, and restitution.
990 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901 T. 415.366.5533 F. 415.480.6301 WWW.JSUPPLELAW.COM
Nancy Hersh, Esq.
Kate Hersh-Boyle, Esq.
Montana Baker, Esq.
March 18, 2020
Page 3
Allegations of Punitive Damages in Violation of Code of Civil Procedure §425.13(a)
The Freitas Complaint improperly alleges punitive damages against a healthcare provider in
violation of §425.13(a). As discussed in Defendants’ Motion to Strike:
In any action for damages arising out of the professional negligence of
a health care provider, no claim for punitive damages shall be included
in a complaint or other pleading unless the court enters an order
allowing an amended pleading that includes a claim for punitive
damages to be filed. The court may allow the filing of an amended
pleading claiming punitive damages on a motion by the party seeking
the amended pleading and on the basis of the supporting and opposing
affidavits presented that the Plaintiffs have established that there is a
substantial probability that the Plaintiffs will prevail on the claim
pursuant to Section 3294 of the Civil Code.
Furthermore, section 425.13 applies even if a plaintiff asserts non-medical malpractice or
negligence claims that relate to actions against health care providers, such as intentional torts.
(Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.)
Here, the Freitas Complaint has improperly included a prayer for punitive damages against
three healthcare providers without following the strict requirements codified in statutory law.
(Complaint, 15:14.) California case law is clear that even when alleging causes of action unrelated to
medical malpractice or negligence, the requirements of CCP section 425.13, subdivision (a) must be
followed. By including a prayer for punitive damages in an initial Complaint, Ms. Freitas is in clear
violation of section 425.13, subdivision (a). Thus, this prayer for relief is completely inappropriate
and subject to a motion to strike.
For the abovementioned reasons, Defendants continue to believe the Freitas demurrer and
motion to strike present arguments highlighting unique deficiencies in the complaint unrelated to the
Rodriguez Complaint. Please advise as to your position relating to the foregoing concerns.
Very truly yours,
J SUPPLE LAW
A Professional Corporation
Madeleine Lough-Stevens
MLS:ks
C:\Users\ksovyak\AppData\Local\Microsoft\Windows\INetCache\Content.Outlook\K0A3SWGQ\RODRIGUEZ - Ltr to opc re Freitas Demurrer.docx
990 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901 T. 415.366.5533 F. 415.480.6301 WWW.JSUPPLELAW.COM
Preview
1 NANCY HERSH (SBN 49091) KATE HERSH-BOYLE (SBN 278864) 2 MONTANA BAKER (SBN 319491) HERSH and HERSH ELECTRONICALLY 3 601 Van Ness Avenue, Suite 2080 F I L E D San Francisco, CA 94102 Superior Court of California, 4 Telephone: 1-415-441-5544 County of San Francisco Facsimile: 1-415-441-7586 03/24/2020 5 Clerk of the Court Attorneys for Plaintiff BY: ERNALYN BURA 6 CASEY FREITAS Deputy Clerk 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 9 10 CASEY FREITAS, an individual, ) Consolidated Case No. CGC-19-580309 ) 11 ) Case No. CGC-19-580659 Plaintiff, ) 12 ) DECLARATION OF NANCY HERSH v. ) IN SUPPORT OF PLAINTIFF’S 13 ) OPPOSITION TO DEFENDANTS’ ) DEMURRER TO PLAINTIFF’S 14 DANIELLE E. LANE, M.D., an individual; ) COMPLAINT MARK FAN, M.D., an individual; ) 15 DANIELLE LANE, M.D., INC, A ) Reservation No. 01290304-06 PROFESSIONAL CORPORATION, a ) 16 Corporation; DANIELLE E. LANE, M.D., ) Date: April 7, 2020 INC. DBA LANE FERTILITY INSTITUTE, ) Time: 9:30 a.m. 17 a Corporation; and LANE FERTILITY ) Dept: 302 INSTITUTE, a Corporation; and DOES 1 to ) Judge: Hon. Ethan P. Schulman 18 50, inclusive, ) ) Complaint Filed: November 8, 2019 19 ) Defendants. ) 20 ) ) 21 ) 22 I, NANCY HERSH, declare as follows: 23 1. I am an attorney licensed to practice before all Courts of the State of California and 24 a partner in the law firm of Hersh & Hersh, located at 601 Van Ness Avenue, Suite 2080, San 25 Francisco, attorneys for Plaintiff in the above-entitled matter. 26 /// 27 /// 28 1 DECLARATION OF NANCY HERSH IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT 1 2. The matters referred to in this declaration are based upon my personal knowledge, 2 except where otherwise indicated and, if called as a witness, I could and would testify competently 3 thereto. 4 3. Plaintiff’s Complaint was filed on November 8, 2019. Attached hereto as Exhibit A 5 is a true and correct copy of Plaintiff’s Complaint. 6 4. Defendants sent Plaintiff a meet and confer letter dated December 27, 2019 7 challenging the sufficiency of the allegations contained in the Complaint regarding the Second, 8 Third, Fourth, Fifth and Sixth causes of action. Attached hereto as Exhibit B is a true and correct 9 copy of Defendants’ meet and confer letter dated December 27, 2019. 10 5. On February 10, 2020, the parties agreed and entered into a stipulation to consolidate 11 this action, Freitas v. Danielle E. Lane, M.D., et al., Case No. CGC-19-580659 (“Case B”), with 12 another action before this Court, Rodriguez v. Danielle E. Lane, M.D., et al., Case No. CGC- 13 19580309 (“Case A”). The parties agreed, pursuant to the stipulation, that the two matters present 14 substantially similar issues of law and fact and should be consolidated to avoid unnecessary 15 duplicative efforts. Attached hereto as Exhibit C is a true and correct copy of the parties Stipulation 16 to Consolidate Cases. 17 6. On February 11, 2020, this Court heard Defendants’ Demurrer in Case A, Rodriguez 18 v. Danielle E. Lane, M.D., et al., Case No. CGC-19580309, and overruled Defendants’ Demurrer in 19 its entirety. Attached hereto as Exhibit D is a true and correct copy of the Court’s Order denying in 20 full Defendants’ Demurrer. 21 7. Based on this Court’s Order in Case A and the parties stipulation to consolidate the 22 matters, Plaintiff’s counsel sent a letter dated February 27, 2020 to Defendants requesting that 23 Defendants’ Demurrer to this matter, Case B, be taken off calendar as a waste of judicial resources. 24 Attached hereto as Exhibit E is a true and correct copy of Plaintiff’s letter dated February 27, 2020. 25 8. On March 3, 2020, the Court ordered the consolidation of this action, Case B, Freitas 26 v. Danielle E. Lane, M.D., et al., Case No. CGC-19-580659), with Case A, Rodriguez v. Danielle E. 27 Lane, M.D., et al., Case No. CGC-19580309. Attached hereto as Exhibit F is a true and correct copy 28 of the Court’s Order. 2 DECLARATION OF NANCY HERSH IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT 1 9. On March 18, 2020, once again, Plaintiff’s counsel requested that Defendants take 2 the instant Demurrer off calendar as a waste of judicial resources. Attached hereto as Exhibit G is 3 a true and correct copy of Nancy Hersh’s email correspondence to Defendants’ counsel on March 4 18, 2020. 5 10. That same day, Counsel for Plaintiff received a letter from Defendants refusing to 6 take the demurrer off calendar, agreeing to “withdraw the demurrer as to the ‘Failure to Obtain 7 Informed Consent’ cause of action only.” Attached hereto as Exhibit H is a true and correct copy 8 of Defense counsel’s email correspondence to Plaintiff’s counsel on March 18, 2020. 9 11. The parties have been unable to reach an agreement settling the pleading to date. 10 12. Defendants Demurrer is without merit and therefore Plaintiff now requests the Court 11 grant Plaintiff $3,750.00 in reasonable attorneys’ fees and costs against Defendant. My associate, 12 Montana Baker, worked 10 hours drafting this Opposition and the accompanying documents at an 13 hourly rate of $375.00. 14 15 I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct. 17 18 Executed this 23th day of March 2020 in San Francisco, California. 19 20 _________________________________ 21 NANCY HERSH 22 23 24 25 26 27 28 3 DECLARATION OF NANCY HERSH IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G Subject: Feitas v. Lane tal. Date: Wednesday, March 18, 2020 at 9:53:43 AM Pacific Daylight Time From: Nancy Hersh To: Rob Deering CC: Lauren Diaz, Montana Baker, Madeleine Lough-Stevens Rob, We are preparing the OpposiRon to your demurrer in the referenced case. As you know, the same demurrer was filed in the Williams Rodriguez case and you lost except for porRons of the moRon to strike re the B&P Code. We have previously offered to sRp to the same Order but have received no response so are forced to proceed. We are going to request sancRons due to the foregoing. If you wish to sRp as previously requested, please advise now as we have to complete and file the Opp. Nancy Hersh *********************************************************** The informaRon in this e-mail is confidenRal and may be legally privileged. It is intended solely for the addressee. Access to this e-mail by anyone other than the intended recipient is unauthorized. If you receive this email in error, please noRfy sender immediately. *********************************************************** NANCY HERSH HERSH & HERSH, A Professional CorporaRon 2080 Opera Plaza, 601 Van Ness Avenue San Francisco, CA 94102-6388 Phone: 415.441.5544; Fax: 415.441.7586 EXHIBIT H J SUPPLE LAW A PROFESSIONAL CORPORATION Madeleine Lough-Stevens MLough-Stevens@jsupplelaw.com March 18, 2020 Via Email nhersh@hershlaw.com khershboyle@hershlaw.com mbaker@hershlaw.com Nancy Hersh, Esq. Kate Hersh-Boyle, Esq. Montana Baker, Esq. HERSH & HERSH 601 Van Ness Avenue, Suite 2080 San Francisco, CA 94102 Re: Patrick and Claudious Williams Rodriguez v. Danielle E. Lane, M.D. Casey Freitas v. Danielle E. Lane, M.D. Dear Counsel: Please allow this correspondence to serve as Defendants’ response to Plaintiffs’ correspondence of February 27, 2020, requesting the Freitas Demurrer and Motion to Strike be taken off calendar. As an initial matter, Defendants agree to withdraw the demurrer as to the “Failure to Obtain Informed Consent” cause of action only. However, for the reasons highlighted herein, it is Defendants’ position the remaining causes of action alleged in the Freitas Complaint contain unique issues unrelated to Defendants’ Demurrer and Motion to Strike in Rodriguez, and as such, the Freitas Complaint remains appropriate for an independent Demurrer and Motion to Strike. Causes of Action for Intentional Misrepresentation, Negligent Misrepresentation, and Fraudulent Concealment The Freitas Complaint fails to allege facts sufficient to support intentional misrepresentation, negligent misrepresentation, or fraudulent concealment as it specifically pertains to Ms. Freitas. The elements of fraud are: (a) misrepresentation, (b) knowledge of falsity, (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (See, Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) As you may know, fraud cases of action must be pled with specificity, i.e., facts sufficient to show “how, when, where, to whom, and by what means the [fraudulent] representations were tendered.” (Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 167, 184.) Thus, in order to plead a cause of action for fraud, “[e]very element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) 990 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901 T. 415.366.5533 F. 415.480.6301 WWW.JSUPPLELAW.COM Nancy Hersh, Esq. Kate Hersh-Boyle, Esq. Montana Baker, Esq. March 18, 2020 Page 2 Here, as support for these causes of action, Ms. Freitas claims the allegedly fraudulent representations were that Defendants “knew that [Plaintiff] should not become pregnant,” and that the representation that Plaintiff could be the gestational carrier for “the couple” was made “with the intent to induce the couple to engage Defendants for fertility services,” (Complaint, ¶¶ 39, 40.) This is completely insufficient. Essentially, Ms. Freitas argues the allegedly fraudulent statements were designed to induce reliance by the couple and thereby caused damage to them – not Ms. Freitas. There are no facts alleged in the Complaint support this cause of action as to how Ms. Freitas’ alleged reliance on any fraudulent representations were made to induce her reliance – instead, the facts focus on the alleged induced reliance of “the couple.” It is undisputed that whether or not “the couple” were induced to rely on the statements, Ms. Freitas still needs to allege facts sufficient to support this cause of action in her individual capacity. Based on the facts alleged in the complaint, Ms. Freitas is unable to support the strict fraud pleading requirements as it pertains to her individual claims. Thus, these fraud cause of actions remain subject to demurrer. Violation of B&P section 17200 Simply put, Ms. Freitas does not have standing to bring this cause of action. An individual has standing to bring a UCL claim only if that individual (1) “has suffered injury in fact,” and (2) “has lost money or property as a result of such unfair competition.” (Hall v. Time, Inc. (2008) 158 Cal.App.4th 847, 852; see Bus. & Prof. Code § 17204.) While Ms. Freitas might be able to argue that she suffered injury related to the injections, the miscarriage, and residual bleeding after the miscarriage, she cannot show that she has lost money or property as a result of the unfair competition. While she may allege that she lost “wages,” California case law is clear that very few monetary injuries will satisfy this requirement. These include 1) expending money due to the defendant’s acts of unfair competition (Aron v. U–Haul Co. of California (2006) 143 Cal.App.4th 796, 802–803); 2) lost money or property through third party actions (see Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1240, 1262 [plaintiff's home and car were vandalized by animal rights protestors]) or; 3) been denied money to which he or she has a cognizable claim, such as an insurance claim (see Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 269–270, 285, fn. 5.) It is undisputed that “lost wages” does not fall into any of these categories. Thus here, Ms. Freitas fails to meet the first criteria, as she does not allege that she suffered an injury in fact under any of these three elements. Instead, Plaintiff alleges Defendants accepted her as a gestational carrier for the couple “purely for financial gain and economic benefit with conscious disregard of the risk to her and the fetus” and “so that the couple would pay Defendants for fertility services, for which they should not have been charged.” (Complaint ¶ 27 [emphasis added].) Again, the fact that “the couple” suffered an alleged injury in fact and allegedly lost money or property is immaterial to Ms. Freitas’ personal cause of action. As she has not alleged facts sufficient to support the first prong of this test, she does not have standing to bring this cause of action. For these reasons, this cause of action is subject to a demurrer, as well as a motion to strike for the inappropriate prayers for relief, including injunctive relief, civil penalties, and restitution. 990 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901 T. 415.366.5533 F. 415.480.6301 WWW.JSUPPLELAW.COM Nancy Hersh, Esq. Kate Hersh-Boyle, Esq. Montana Baker, Esq. March 18, 2020 Page 3 Allegations of Punitive Damages in Violation of Code of Civil Procedure §425.13(a) The Freitas Complaint improperly alleges punitive damages against a healthcare provider in violation of §425.13(a). As discussed in Defendants’ Motion to Strike: In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the Plaintiffs have established that there is a substantial probability that the Plaintiffs will prevail on the claim pursuant to Section 3294 of the Civil Code. Furthermore, section 425.13 applies even if a plaintiff asserts non-medical malpractice or negligence claims that relate to actions against health care providers, such as intentional torts. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) Here, the Freitas Complaint has improperly included a prayer for punitive damages against three healthcare providers without following the strict requirements codified in statutory law. (Complaint, 15:14.) California case law is clear that even when alleging causes of action unrelated to medical malpractice or negligence, the requirements of CCP section 425.13, subdivision (a) must be followed. By including a prayer for punitive damages in an initial Complaint, Ms. Freitas is in clear violation of section 425.13, subdivision (a). Thus, this prayer for relief is completely inappropriate and subject to a motion to strike. For the abovementioned reasons, Defendants continue to believe the Freitas demurrer and motion to strike present arguments highlighting unique deficiencies in the complaint unrelated to the Rodriguez Complaint. Please advise as to your position relating to the foregoing concerns. Very truly yours, J SUPPLE LAW A Professional Corporation Madeleine Lough-Stevens MLS:ks C:\Users\ksovyak\AppData\Local\Microsoft\Windows\INetCache\Content.Outlook\K0A3SWGQ\RODRIGUEZ - Ltr to opc re Freitas Demurrer.docx 990 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901 T. 415.366.5533 F. 415.480.6301 WWW.JSUPPLELAW.COM