You are on page 1of 14

1 LAW OFFICES OF

WALKUP, MELODIA, KELLY & SCHOENBERGER


2 A PROFESSIONAL CORPORATION

650 CALIFORNIA STREET, 26TH FLOOR


3 SAN FRANCISCO, CALIFORNIA 94108-2615
(415) 981-7210
4
MICHAEL A. KELLY (State Bar #71460)
5 mkelly@walkuplawoffice.com
DORIS CHENG (State Bar #197731)
6 dcheng@walkuplawoffice.com
ATTORNEYS FOR PLAINTIFFS
7

9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF SAN FRANCISCO

11

12 T.L. and S.N., Case No.

13 Plaintiffs, COMPLAINT FOR DAMAGES


14 v.
1. Negligence
15 PRELUDE FERTILITY, INC., SAN 2. Premises Liability
FRANCISCO FERTILITY CENTERS, a
16 medical corporation, PACIFIC FERTILITY 3. Breach of Contract
CENTER, and DOES ONE through TWO 4. Bailment
17 HUNDRED, 5. Unfair Business Practice

18 Defendants. Amount in Controversy Exceeds $25,000


19

20 INTRODUCTION
21 1. On March 4, 2018, a cryopreservation storage tank (identified as Tank #4) owned,
22 operated, serviced and controlled by Defendants PRELUDE FERTILITY, INC., SAN
23 FRANCISCO FERTILITY CENTERS, a medical corporation, PACIFIC FERTILITY CENTER,
24 and DOES ONE through FIFTY, failed and caused irreparable damage to thousands of eggs and
25 embryos.
26 2. On March 11, 2018, Defendants PACIFIC FERTILITY CENTER and DOES ONE
27 through TEN sent an email to Plaintiffs, notifying them that Plaintiffs’ genetic material was in the
28 storage tank when the tank (Tank #4) lost liquid nitrogen for a period of time. In this

COMPLAINT FOR DAMAGES - CASE NO.


1 communication, Defendants indicated that after discovering the failure, the defective storage tank

2 was retired and Plaintiffs’ tissue was transferred to another tank.

3 3. Plaintiffs T.L. and S.N. are domestic partners and were co-owners of twelve high

4 quality embryos which had been stored by the defendants PRELUDE FERTILITY, INC., SAN

5 FRANCISCO FERTILITY CENTERS, A MEDICAL CORPORATION, PACIFIC FERTILITY

6 CENTER, and DOES ONE through ONE HUNDRED, pursuant to a contract, since 2012. As a

7 result of the culpable conduct of the Defendants, hereinafter more fully described, the twelve

8 embryos are not likely to be viable, causing Plaintiffs to suffer injury, damage, loss, and harm.

9 THE PARTIES
10 4. The true names, capacities or involvement, whether individual, corporate,

11 governmental or associate of the defendants named herein as DOE, are unknown to plaintiffs who

12 therefore sue said defendants by such fictitious names. Plaintiffs pray leave to amend this

13 complaint to show their true names and capacities, when the same have been finally determined.

14 Plaintiffs are informed and believe, and upon such information and belief allege, that each

15 of the defendants designated herein as DOE is negligently, strictly, contractually, or otherwise

16 legally responsible in some manner for the events and happenings herein referred to, and

17 negligently, strictly, by way of breach of contract, or otherwise caused injury and damages legally

18 thereby to plaintiffs as is hereinafter alleged.

19 5. At all times herein mentioned, each and every of the defendants herein was the

20 agent, servant, partner, joint venturer, employee and/or franchisee of each of the other defendants,

21 and each was at all times acting within the course and scope of such agency, service, employment,

22 joint venture, partnership and/or franchise.

23 6. At all relevant times herein, Defendant PRELUDE FERTILITY, INC. was a

24 partner, joint venturer, and/or co-owner of defendants SAN FRANCISCO FERTILITY

25 CENTERS, A MEDICAL CORPORATION, PACIFIC FERTILITY CENTER, and DOES ONE

26 through FIFTY and each of them.

27 7. At all relevant times herein defendants SAN FRANCISCO FERTILITY

28 CENTERS, A MEDICAL CORPORATION, PACIFIC FERTILITY CENTER, PRELUDE


LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
2
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 FERTILITY, INC. and DOES ONE through FIFTY conducted their business operations at 55

2 Francisco Street, Suite 500 in San Francisco, California. At all times herein mentioned, said

3 defendants were in the business of oocyte stimulation, egg harvesting, in vitro fertilization, egg

4 cryopreservation, and storage of human eggs, fertilized embryos and genetic material.

5 8. At all times herein mentioned, DOES FORTY through SEVENTY-FIVE were

6 entities or individuals in the business of designing, manufacturing, distributing, inspecting,

7 servicing, repairing and maintaining, cryopreservation products and devices as well as storage

8 tanks and systems utilized in the storage of human eggs, fertilized embryos and genetic material,

9 and more particularly, the storage tank identified hereafter as “Tank #4” on the premises of Pacific

10 Fertility Center on March 4, 2018.

11 9. Plaintiff T.L. was a client of PRECLUDE FERTILITY, INC., PACIFIC

12 FERTILITY CENTER, and DOES ONE through ONE HUNDRED AND FIFTY, and was the co-

13 owner of twelve embryos stored in Tank #4. The name used by Plaintiff T.L. in this Complaint is

14 not the real name of Plaintiff, but a fictitious name used to protect the privacy of Plaintiff.

15 10. Plaintiff S.N. was a client of PRECLUDE FERTILITY, INC., PACIFIC

16 FERTILITY CENTER, and DOES ONE through ONE HUNDRED AND FIFTY, and a co-owner

17 of twelve embryos stored in Tank #4. The name used by Plaintiff S.N. in this Complaint is not the

18 real name of Plaintiff, but a fictitious name used to protect the privacy of Plaintiff.

19 FACTUAL ALLEGATIONS
20 A. Egg Harvesting and IVF Services
21 11. At all times herein mentioned, Defendants PRELUDE FERTILITY, INC., SAN

22 FRANCISCO FERTILITY CENTERS, A MEDICAL CORPORATION, PACIFIC FERTILITY

23 CENTER, and DOES ONE through FIFTY owned, operated, controlled and maintained a facility

24 which offered egg freezing, egg storage, embryo storage, in vitro fertilization and egg donation

25 services, single embryo transfer, and the operation of a frozen donor egg bank in San Francisco,

26 California.

27 12. At all times herein mentioned, the defendant’s targeted and marketed their services

28 to individuals desiring to store eggs and embryos for use in the process of having babies through
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
3
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 IVF and other means at a later date. Defendants advertised egg and embryo freezing services as a

2 means of preserving “a precious resource, limited to just a few years of your life” and represented

3 that freezing reproductive tissue and genetic material could increase an individual’s chances of

4 conception by 5 to 10 times.

5 13. Defendant PRELUDE FERTILITY, INC. acting by and on behalf of the other co-

6 defendants specifically, directed visitors on its internet site to its location in San Francisco.1
7 14. Defendants SAN FRANCISCO FERTILITY CENTER A MEDICAL

8 CORPORATION, PACIFIC FERTILITY CENTER, and DOES ONE through THIRTY-FIVE,

9 acting by and on behalf of the other co-defendants promoted egg harvesting and preservation,

10 representing that human eggs are a limited resource for women.2


11 15. Eggs and embryos are preserved through a rapid freezing process called

12 vitrification, which defendants describe as “technology that is used in the embryo and egg freezing

13 process so that they can be stored for later use.” The eggs are to remain frozen indefinitely, until

14 the person owning them decides to fertilize them. Defendant PACIFIC FERTILITY CENTER,

15 and DOES ONE through THIRTY-FIVE, acting by and on behalf of the other co-defendants,

16 specifically represented that its clients’ eggs would “remain frozen until you need them.” The

17 defendants also represented their newer vitrification process was safer than earlier slow freezing

18 technologies, which could lead to crystallization, threatening the viability of frozen tissue.

19 Defendants also represented that “Avoiding ice formation in this way, successfully protects the

20 embryos from damage and allows them to be warmed later, giving survival rates consistently

21 above 90%.”

22 16. The cost of egg freezing services at the Defendant’s storage facility is expensive.

23 One cycle of freezing and retrieval, including laboratory tests, medications and storage of the

24 frozen eggs for one year, costs as much as $14,000 or more. Defendants charge $600 per annum

25 for storage.

26

27 1
https://www.preludefertility.com/faq; https://www.preludefertility.com/freeze-eggs.
2
28 https://www.pacificfertilitycenter.com/fertility-preservation/reproductive-facts#limited.
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
4
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 17. Defendants PRELUDE FERTILITY, INC. and DOES TWENTY through

2 SEVENTY-FIVE promoted the safety of oocyte storage on their internet site: “Eggs have been

3 safely stored and then thawed after many years with the same success as eggs that are fresh or

4 frozen for a short time. There is currently no evidence that suggests that frozen eggs deteriorate

5 with time.”3 Defendants PRELUDE FERTILITY, INC. and DOES TWENTY through
6 SEVENTY advertised on their internet site that “[e]ggs can be safely stored as long as you need

7 them.”4
8 18. At all relevant times herein and more specifically in March of 2018, Defendants

9 PRELUDE FERTILITY, INC., SAN FRANCISCO FERTILITY CENTERS A MEDICAL

10 CORPORATION, PACIFIC FERTILITY CENTER, and DOES ONE through FIFTY owned,

11 operated, serviced, and controlled the facility in San Francisco, California where oocytes (eggs),

12 sperm, and embryos were frozen and stored at a temperature of -196°C in vacuum lined tanks that

13 are computer controlled, monitored daily, and equipped with a dedicated alarm system.5
14 Defendants represented that frozen embryos coming out of the freezer at -196°C, are warmed to

15 body temperature in 2 to 3 seconds; and thawing must be performed in accordance with

16 SurTransfer™ protocol in order for them to remain viable for implantation.6


17 19. Defendants further advertised that these tanks are monitored for problems including

18 slow leaks or impending tank failure and that the nitrogen in the tanks was topped up daily, since

19 it continuously evaporates at a slow rate.7 Defendants advertised that the Francisco Street facility
20 utilized electronic tank monitoring to ensure that the storage tanks performed consistent with good

21 and accepted safety standards and to required specifications, and that even if the tanks were not

22 physically inspected, or if PACIFIC FERTILITY CENTER could not obtain liquid nitrogen, the

23

24
3
25 https://www.preludefertility.com/freeze-eggs.
4
https://www.preludefertility.com/faq.
26
5
https://www.pacificfertilitycenter.com/treatment-care/sperm-and-embryo-freezing.
27 6
Id.
7
28 Id.
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
5
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 tanks should still hold their temperature for several days.8 Additionally, Defendants advertised
2 that the alarm system on tanks were tested weekly.9
3 20. Defendants and each of them represented that their cryopreservation and storage

4 services were safe.10


5 B. Cryopreservation and Storage of Plaintiffs’ Embryos in Tank #4
6 21. On or about June 9, 2009, Plaintiffs T.L. and S.N. contracted with Defendants

7 PACIFIC FERTILITY CENTER and DOES ONE through FIFTY to procure donor eggs, perform

8 in vitro fertilization and embryo transfer, as well as cryopreserve and store the remaining embryos.

9 These eggs were inseminated with Plaintiff T.L.’s sperm. Plaintiffs T.L. and S.N. consented to

10 and Defendants PACIFIC FERTILITY CENTER, SAN FRANCISCO FERTILITY CENTERS A

11 MEDICAL CORPORATION, and DOES ONE through FIFTY, and each of them, did transfer and

12 implant one embryo to a surrogate, which successfully led to pregnancy and delivery of a healthy

13 baby.

14 22. Plaintiffs have paid the Defendants for each and all of these services; and did not

15 use any insurance for payment. Since June of 2009, Plaintiffs have regularly and timely paid the

16 fees for continued cryopreservation and storage of the remaining embryos.

17 23. Plaintiffs intended to use the remaining embryos for transfer in order to have

18 another child.

19 24. On or about June 9, 2009, plaintiff’s embryos were frozen and stored at the storage

20 facility of the Defendants in San Francisco. There were a total of twelve (12) embryos stored.

21 Eight (8) of the remaining embryos were classified as Grade I. Four (4) of the remaining embryos

22 were classified as Grade II.

23 25. For the past nine years, Plaintiffs believed that their embryos were safe and

24 protected in the storage facilities owned, operated, and maintained by the Defendants, and that

25 said embryos were suitable for implantation and development of a healthy brother or sister for

26
8
Id.
27 9
Id.
10
28 https://www.pacificfertilitycenter.com/fertility-preservation/my-eggs#success.
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
6
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 their current child.

2 C. Defendant’s Storage Tank #4 Failed on March 4, 2018


3 26. On or about March 4, 2018, a liquid nitrogen failure of some type occurred in Tank

4 #4 located on the premises of the Defendants in San Francisco, resulting in irreparable harm and

5 damage to eggs, human tissue, fertilized embryos and other genetic material belonging to

6 Plaintiffs as well as hundreds of men and women who had tissue stored in that tank.

7 27. Upon information and belief at some time on March 4, 2018, a contractor,

8 employee or other individual acting on behalf of the Defendants discovered that the level of liquid

9 nitrogen in Tank #4 fell below the amount required to properly preserve the viability of the stored

10 eggs and embryos. Upon information and belief, plaintiffs embryos were impacted and are no

11 longer suitable, safe or appropriate for implantation and development of a healthy sibling for

12 plaintiffs’ existing child.

13 28. Although Defendants, and each of them, knew that Tank #4 had failed on or around

14 March 4, 2018, neither plaintiffs herein nor the owners of eggs, embryos, tissue and other genetic

15 material were immediately notified about the storage tank failure until around 4:00 a.m. on March

16 11, 2018, at which time a mass email was sent to clients including Plaintiffs herein. The author of

17 the email was Dr. Rusty Herbert, stating, “Earlier this week, a single piece of equipment lost

18 liquid nitrogen for a brief period of time.” The email further stated that embryologists took steps

19 to secure the tissue contained in the defective storage tank. The email also stated, “We felt it was

20 imperative to advise you that your tissue was stored in the affected tank and may have been

21 impacted.”

22 29. The March 11, 2018 email stated that Defendant PACIFIC FERTILITY CENTER

23 acting on behalf of itself and the other defendants had hired “independent experts” and launched

24 an investigation and that they have reviewed their storage equipment and cryopreservation

25 protocols in light of the failure.

26 ///

27 ///

28 ///
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
7
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 FIRST CAUSE OF ACTION
[General Negligence Against Defendants Prelude Fertility Inc., San Francisco Fertility
2 Centers, A Medical Corporation, Pacific Fertility Center, and Does One Through Fifty]
3 30. Plaintiffs hereby refer to, reallege and incorporate by this reference each and every

4 factual allegation of Paragraphs 1-29 and makes them a part of this First Cause of Action, as

5 though set forth in full.

6 31. On and before March 4, 2018, Defendants PRELUDE FERTILITY, INC., SAN

7 FRANCISCO FERTILITY CENTERS A MEDICAL CORPORATION, PACIFIC FERTILITY

8 CENTER, and DOES ONE through ONE HUNDRED, and each of them, knew or should have

9 known that its cryopreservation storage tanks, cryopreservation system and preservation

10 machinery, including Storage Tank #4, required regular and vigilant inspection, testing,

11 monitoring, maintenance and service for it to operate properly and safely and preserve eggs,

12 embryos, and human reproductive tissue at appropriate temperatures. Defendants knew and

13 should have known that fluctuations in temperature would affect and potentially destroy the

14 viability of frozen the human reproductive tissue belonging to plaintiffs, and in that way cause

15 irreparable harm and damage to the tissue.

16 32. On and before March 4, 2018, Defendants PRELUDE FERTILITY, INC., SAN

17 FRANCISCO FERTILITY CENTERS A MEDICAL CORPORATION, PACIFIC FERTILITY

18 CENTER, and DOES ONE through FIFTY, and each of them, were negligent, careless and

19 reckless in and about their inspection, testing, monitoring, maintenance, control, service, and said

20 defendants were negligent and careless in their failure to properly inspect, test, monitor, maintain,

21 service and control their cryopreservation equipment, including Tank #4, such that the tank did not

22 maintain the appropriate temperature, on information and belief, the liquid nitrogen level fell

23 below minimally accepted standards and caused damage, loss, harm and injury to Plaintiffs’ stored

24 embryos.

25 33. By reason of the premises, and as a direct and legal cause thereof, it has become

26 necessary for plaintiffs, and will become necessary for plaintiffs in the future, to incur expenses

27 for new and different reproductive services, the services of medical and genetic professionals,

28 doctors, hospitals, and other unknown health care professionals, specialized technicians and other
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
8
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 reasonably required supplies and services, which said services are now necessary in order to

2 remediate the harm caused by the defendants. Such damages in this respect are presently

3 unascertained, and plaintiffs pray leave to insert their elements of damage in this respect when the

4 same are finally determined.

5 34. By reason of the premises, and as a direct and legal cause thereof, plaintiffs will

6 suffer and sustain economic loses including loss of earnings and benefits in order to replace or

7 remedy the loss of their embryos. Plaintiffs pray leave to insert their elements of economic

8 damage in this respect when the same are finally determined.

9 35. By reason of the premises, and as a direct and legal cause thereof, plaintiffs have

10 lost the use of their unique, precious and valuable personal property, and the ability to have a

11 biologically related sibling for their current child, they have sustained and will continue to sustain

12 severe emotional distress by reason of the damage to their frozen embryos, which are biologically

13 unique to them, all to their to their non-economic damage in amount according to proof. Plaintiffs

14 pray leave to insert their elements of damage in this respect when the same are finally determined.

15 36. By reason of the premises, plaintiffs have been caused to suffer and sustain general

16 (non-economic) damages in a sum in excess of the minimum jurisdictional limits of this court.

17 WHEREFORE, plaintiffs T.L and S.N. pray for judgment against the defendants, and each

18 of them, jointly and severally, as hereinafter set forth.

19
SECOND CAUSE OF ACTION
20 [Premises Liability ]

21 Plaintiffs T.L. and S.N. complain of defendants, and each of them, and for a Second Cause

22 of Action alleges as follows:

23 37. Plaintiffs hereby refer to, reallege and incorporate by this reference each and every

24 allegation of Paragraphs 1-36 and makes them a part of this Second Cause of Action, as though set

25 forth in full.

26 38. At all times herein mentioned, Defendants PRELUDE FERTILITY, INC., SAN

27 FRANCISCO FERTILITY CENTERS A MEDICAL CORPORATION, PACIFIC FERTILITY

28 CENTER, and DOES ONE through FIFTY, and each of them, owned, leased, occupied, and
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
9
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 controlled the cryopreservation machinery, property, premises, dissociated equipment including

2 Storage Tank #4 on the premises at 55 Francisco Street, Suite 500 in San Francisco, California.

3 39. At all times herein mentioned, Defendants PRELUDE FERTILITY, INC., SAN

4 FRANCISCO FERTILITY CENTERS A MEDICAL CORPORATION, PACIFIC FERTILITY

5 CENTER, and DOES ONE through FIFTY, and each of them, had a duty to use reasonable care to

6 keep Plaintiffs’ personal property in a reasonably safe condition and free from defects that would

7 cause injury or harm to the human reproductive tissue which was owned by Plaintiffs.

8 40. At all times herein mentioned, Defendants PRELUDE FERTILITY, INC., SAN

9 FRANCISCO FERTILITY CENTERS A MEDICAL CORPORATION, PACIFIC FERTILITY

10 CENTER, and DOES ONE through FIFTY, and each of them, knew or should have known by

11 reasonable inspection and monitoring of the defective condition of the premises, specifically Tank

12 #4.

13 41. At all times herein mentioned, Defendants PRELUDE FERTILITY, INC., SAN

14 FRANCISCO FERTILITY CENTERS A MEDICAL CORPORATION, PACIFIC FERTILITY

15 CENTER, and DOES ONE through FIFTY, and each of them, were careless and negligent in the

16 ownership, management, control and, maintenance, of the above described real property, such that

17 Plaintiffs’ frozen embryos were caused to suffer permanent injury and damage.

18 42. By reason of the premises, and as a direct and legal cause thereof, plaintiffs have

19 been caused to suffer the injury, loss, harm and damages hereinabove and hereinafter set forth.

20
THIRD CAUSE OF ACTION
21 [Breach of Contract]

22 Plaintiffs T.L. and S.N. complain of defendants, and each of them, and for a Third Cause
23 of Action alleges as follows:
24 43. Plaintiffs hereby refer to, reallege and incorporate by this reference Paragraphs 1-
25 42 and makes them a part of this Third Cause of Action, as though set forth in full.
26 44. Plaintiffs entered into a contract with the Defendants for services including
27 cryopreservation and storage of twelve (12) frozen embryos.
28 45. At all relevant times herein mentioned, Plaintiffs fulfilled all of their obligations
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
10
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 under the terms of the contract, including but not limited to, making timely payment and

2 completing all testing and sperm donation.

3 46. On and before March 4, 2018, Defendants were contractually obligated to maintain

4 the frozen embryos at a temperature of -196°C in vacuum lined tanks that were controlled,

5 monitored daily, and equipped with a dedicated alarm system. Defendants were contractually

6 obligated to ensure that the cryopreservation machinery, equipment and personnel worked

7 properly and that the defendant’s employees, contractors, and agents responded in a timely fashion

8 to any warning or alarm in connection with a malfunction or defect with the cryopreservation

9 storage tanks.

10 47. At all times herein mentioned, Defendants had a contractual obligation to fulfill the

11 obligations set forth in the written agreement and to keep all of the machinery, equipment and

12 personnel responsible for the safeguarding of plaintiffs unique and precious personal property in a

13 reasonably safe condition and free from defects that would cause injury or harm to the human

14 reproductive tissue in the cryopreservation storage tanks.

15 48. Defendants breached their written contractual duties by failing to prevent the harm

16 to Plaintiffs’ frozen embryos within Storage Tank #4, in that the defendants failed to institute and

17 maintain reasonable safeguards, proactive programs to prevent liquid nitrogen failure or increases

18 in temperature in order to maintain viability of the genetic material; and failed to maintain a

19 system of adequate warnings and effective responses to defects or malfunctions in the their storage

20 protocol.

21 49. By reason of the premises, and as a direct and legal cause thereof, plaintiffs

22 suffered the harm and damages hereinabove and hereinafter set forth.

23
FOURTH CAUSE OF ACTION
24 [Bailment]

25 Plaintiffs T.L. and S.N. complain of defendants, and each of them, and for a Fourth Cause
26 of Action allege as follows:
27 50. Plaintiffs hereby refer to, reallege and incorporate by this reference each and every
28 allegation in Paragraphs 1-49 and make them a part of this Fourth Cause of Action, as though set
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
11
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 forth in full.

2 51. Plaintiffs delivered to Defendants PRELUDE FERTILITY, INC., SAN

3 FRANCISCO FERTILITY CENTERS A MEDICAL CORPORATION, PACIFIC FERTILITY

4 CENTER, and DOES ONE through FIFTY, and each of them, fertilized embryos, their unique

5 personal property, to be kept safely and securely for the benefit of Plaintiffs, and to be re-delivered

6 to them upon demand.

7 52. Plaintiffs agreed to pay, and did pay, substantial sums in exchange for Defendants’

8 promises to safeguard their unique personal property, to wit, high quality frozen embryos, for the

9 benefit of Plaintiffs.

10 53. Defendants had a duty to exercise due care in maintaining, preserving, and

11 protecting Plaintiffs’ embryos from and after the time that they were delivered to Defendants.

12 Further, Defendants had a duty to return the eggs and embryos, undamaged, to Plaintiffs upon

13 request and to whom the embryos belonged.

14 54. Defendants invited Plaintiffs to entrust their embryos to Defendants’ care by

15 holding themselves out as competent and capable in the field of cryopreservation storage, and

16 represented that there facility was capable of reasonably caring for plaintiffs eggs and embryos in

17 a safe and secure manner.

18 55. Because of Defendants’ wrongful conduct as set forth hereinabove, Plaintiffs’

19 personal property was irreplaceably damaged, precluding its re-delivery to Plaintiffs as provided

20 for under the terms of the contract.

21 56. By reason of the premises, and as a direct and legal cause thereof, Plaintiffs have

22 been deprived of the opportunity to use the embryos that they entrusted to Defendants.

23 57. By reason of the premises, and as a direct and legal cause thereof, Plaintiffs

24 suffered the harm and damages hereinabove and hereinafter set forth.

25
FIFTH CAUSE OF ACTION
26 [Violation of Unfair Competition Law – Bus. & Prof. Code § 17200]

27 Plaintiffs T.L. and S.N. complain of defendants, and each of them, and for a Fifth Cause of
28 Action alleges as follows:
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
12
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 58. Plaintiffs hereby refer to, reallege and incorporate by this reference as though set

2 forth in full each and every allegation of Paragraphs 1-57 and makes them a part of this Fifth

3 Cause of Action, as though set forth in full.

4 59. The Unfair Competition Law (“UCL”) (Business & Professions Code § 17200

5 prohibits acts of “unfair competition,” including any “unlawful, unfair or fraudulent business act

6 or practice.”

7 60. The conduct of Defendants PRELUDE FERTILITY, INC., SAN FRANCISCO

8 FERTILITY CENTERS A MEDICAL CORPORATION, PACIFIC FERTILITY CENTER, and

9 DOES ONE through ONE HUNDRED, and each of them, was unlawful because it constituted

10 negligence, gross negligence, breach of contract, and defendants destruction and conversion of

11 those items delivered to them as part of the bailment above described.

12 61. The gravity of the harm resulting from Defendants’ conduct detailed above

13 outweighs any conceivable utility of the conduct. There were reasonably available alternatives

14 that would have furthered Defendants’ legitimate business interests, such as ensuring the

15 continued protection of the human reproductive tissue in Defendants’ custody and control.

16 Defendants’ careless and reckless conduct were egregious, oppressive and substantially injurious

17 and constituted unfair business practices.

18 62. Plaintiffs could not have reasonably avoided injury from Defendants’ unfair

19 business practices. Plaintiffs did not know and could not have reasonably known that Defendants

20 were not ensuring the continued protection of the human reproductive tissue that Plaintiffs

21 entrusted to Defendants.

22 63. As a direct and proximate cause of Defendants’ unfair business practices, Plaintiffs

23 have suffered injury in fact and seek appropriate relief under the UCL.

24 WHEREFORE, plaintiffs pray judgment against the defendants, and each of them, jointly

25 and severally as follows:

26 A. For general (non-economic) damages according to proof at the time of trial;

27 B. For special (economic) damages according to proof at the time of trial;

28 C. For prejudgment interest as permitted by law;


LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
13
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.
1 D. For appropriate equitable relief;

2 E. For reasonable attorneys’ fees and costs of suit incurred herein as permitted by law;

3 and

4 F. For such other and further relief as this Court may deem proper.

5 Dated: March 20, 2018 W ALKUP , M ELODIA , K ELLY & S CHOENBERGER


6

8 DORIS CHENG
Attorneys for Plaintiffs
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
LAW OFFICES OF
WALKUP, MELODIA, KELLY
& SCHOENBERGER
A PROFESSIONAL CORPORATION
650 CALIFORNIA STREET
26TH FLOOR
14
SAN FRANCISCO, CA 94108
(415) 981-7210
COMPLAINT FOR DAMAGES - CASE NO.