On April 26, 2019 a Motion-Secondary 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.
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MARIO A. MOYA (State Bar No. 262059) 1 REBECCA M. HOBERG (State Bar No. 224086) 2 MOYA LAW FIRM 1300 Clay Street, Suite 600 ELECTRONICALLY 3 Oakland, California 94612 Telephone: 510.926.6521 FILED 4 Superior Court of California, Fax: 510.340.9055 County of San Francisco 5 Email: mmoya@moyalawfirm.com 06/14/2023 rhoberg@moyalawfirm.com Clerk of the Court BY: JUDITH NUNEZ 6 Deputy Clerk Attorneys for Plaintiffs 7 H.H. and D.H. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 12 COORDINATION PROCEEDING Case No. CJC-19-005021 SPECIAL TITLE (RULE 3.550) (Pacific Fertility Cases) 13 PACIFIC FERTILITY CASES (orig. filed as CGC-19-572788) 14 15 DECLARATION OF MARIO A. MOYA IN 16 SUPPORT OF MOTION OF PLAINTIFFS H.H. and D.H., H.H. & D.H. TO REMAND ACTION FOR 17 FURTHER PRETRIAL PROCEEDINGS 18 Plaintiffs, AND TRIAL 19 v. Date: July 12, 2023 Time: 2:00 p.m. 20 PACIFIC FERTILITY CENTER, et al., Dept.: 613 21 Judge: Hon. Andrew Y.S. Cheng Defendants. 22 [CRC 3.542, C.C.P. § 404.1] 23 24 25 26 27 28 1 DECL. OF MARIO A. MOYA I.S.O. MOT. OF PLAINTIFFS H.H. & D.H. TO REMAND ACTION 1 I, Mario A. Moya, declare: 2 1. I am an attorney duly admitted to practice before the State of California and 3 in all state and federal courts of the State of California. I am the owner of the Moya Law 4 Firm in Oakland, which is located at 1300 Clay Street, Suite 600, Oakland, California 5 94612. I have personal knowledge of the facts set forth herein, except as to those stated on 6 information and belief, and, as to those, I am informed and believe them to be true. If called 7 as a witness, I could and would competently testify to the matters stated herein. 8 2. I am counsel for Plaintiffs H.H. and D.H. in this action. I submit this 9 declaration in support of Plaintiffs H.H. and D.H.’s motion for remand. 10 3. Plaintiffs H.H. and D.H. filed their original complaint in case No. 11 CGC-19-572788 on Jan. 15, 2019. On Apr. 26, 2019, their case was ordered consolidated 12 for pretrial purposes into Case No. CGC-18-565215. A subsequent petition to appoint a 13 leadership structure on May 13, 2019 resulted in a leadership group involving other counsel 14 being appointed to lead the consolidated case (CGC-18-565215) for pretrial purposes. 15 Shortly thereafter, in June 2019, Defendant Chart, Inc. joined in a motion to compel 16 arbitration and stay prosecution of the consolidated lawsuit, which was denied by order of 17 Dept. 613 on July 18, 2019. Chart subsequently filed a notice of appeal on July 23, 2019, 18 which effectively stayed discovery in this action until a remittitur was eventually returned to 19 this Court almost four years later on or about Feb. 7, 2023. 20 4. During this intervening period of Chart’s appeal and the automatic stay of 21 proceedings per C.C.P. § 916 in Case No. CGC-18-565215, the various plaintiffs’ cases 22 were eventually marshaled into a JCCP in late February 2020, after one stray case had been 23 filed by one group of plaintiffs in San Mateo County. 24 5. On March 2, 2020, Plaintiff's H.H. and D.H.’s case was designated as 25 complex and coordinated into JCCP 5021 as an add-on case pursuant to Code of Civil 26 Procedure section 404.1. 27 6. During the week of March 17, 2023, I learned from a public news report 28 2 DECL. OF MARIO A. MOYA I.S.O. MOT. OF PLAINTIFFS H.H. & D.H. TO REMAND ACTION published in the Washington Post that the lead plaintiffs’ group had confidentially settled 1 their pending lawsuits with Chart along with other federal plaintiffs, including several 2 federal plaintiffs who had obtained victories after a well-publicized federal trial in June 3 2021. I confirmed this fact from an investigation of documents filed in other proceedings, 4 including Chart’s appeal of the federal verdict before the U.S. Court of Appeals for the 5 Ninth Circuit. 6 7. On May 8, 2023, the Plaintiffs’ liaison counsel and the remaining Defendants 7 in this action, Chart, Inc., Praxair Distribution, Inc., and Praxair, Inc., filed a Joint Case 8 Management Statement with this Court. I understand from reviewing this Joint CMC 9 Statement and the online case docket that all Plaintiffs in the JCCP, except for our clients 10 H.H. and D.H., have filed Requests for Dismissal of their cases, and that those Requests for 11 Dismissal have been accepted by the Court. I further understand from this Joint CMC 12 Statement, as well as communications I’ve had with counsel, that all parties stipulate to 13 remanding the action filed by Plaintiffs H.H. and D.H. pursuant to California Rule of Court 14 3.542. See Joint CMC Statement (5/8/2023) at 2:10–13 15 8. To date, there has not been any discovery requests or responses served on 16 Plaintiffs H.H. or D.H. or the undersigned law firm by any party to this action. Plaintiffs are 17 now prepared to move forward with discovery in their case to ensure a fair adjudication on 18 the merits. Plaintiffs H.H. and D.H. have served a first set of written discovery to Chart 19 (who disputes plaintiff’s ability to serve independent discovery in this JCCP proceeding), so 20 plaintiff respectfully requests that they be freed of the constraints of the JCCP and the 21 consolidated action to independently prosecute their case. 22 9. Before all other plaintiffs had dismissed their lawsuits, I was unable to obtain 23 the agreement of all parties (including other plaintiffs) to sign a stipulation for this relief. 24 Now that all other plaintiffs have dismissed their cases, my law office has asked counsel for 25 Chart and the Praxair defendants if they would agree to stipulate to the relief requested by 26 this motion. On Friday July 9, 2023, my colleague Rebecca M. Hoberg sent an email to 27 counsel for Chart and the Praxair defendants asking for this stipulation (on which email I 28 3 DECL. OF MARIO A. MOYA I.S.O. MOT. OF PLAINTIFFS H.H. & D.H. TO REMAND ACTION was cc’ed). My law office did not receive any response. On Monday June 12, 2023, I sent 1 a follow up inquiry asking about Ms. Hoberg’s prior email and if the defendants would 2 agree to the stipulation circulated. Again, we did not receive any response. Based on the 3 statements made in the May 8 Case Management Conference statement previously filed by 4 the defendants and the lead plaintiffs (the latter of whom have since dismissed their claims), 5 I believe in good faith that this motion will be unopposed. 6 10. This motion is made in good faith and not for any improper purpose. 7 8 I declare under penalty of perjury under the laws of California that the foregoing is 9 true and correct. 10 Executed this 14th day of June 2023 at San Rafael, California. 11 12 13 ______________________________________ 14 Mario A. Moya 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DECL. OF MARIO A. MOYA I.S.O. MOT. OF PLAINTIFFS H.H. & D.H. TO REMAND ACTION