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Wayne E. Beaudoin, State Bar No. 184896LAW OFFICE OF WAYNE E.BEAUDOINA Professional Corporation15165 Ventura Boulevard, Suite 400Sherman Oaks, CA 91403
Telephone No.: (818) 205-2815Fax No.: (818) 788-8104
Theodore A. Penny, State Bar No. 62382Daniel L. Warshaw, State Bar No. 185365PEARSON, SIMON, WARSHAW & PENNY, L.L.P.15165 Ventura Boulevard, Suite 400Sherman Oaks, CA 91403Telephone: (818) 788-8300Facsimile (818) 788-8104
Attorneys for Plaintiffs, Individually and on Behalf of All Others Similarly Situated
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA
BETH MADRONES andMARCIO MADRONES, Individually and onBehalf of all Others Similarly Situated,
Plaintiffs,
v.
SURROGENESIS USA, INC., a CaliforniaCorporation;SURROGENESIS, INC., a NevadaCorporation;SURROGENESIS USA, LLC, a DelawareLimited Liability Company;TONYA A. COLLINS, an individual;MICHAEL CHARLES INDEPENDENTFINANCIAL HOLDINGS GROUP, INC., aNevada Corporation;JACK KISEROW, an individual, and DOES 1
through 250, inclusive,Defendants.
Case No.
CLASS ACTION
CLASS ACTION COMPLAINT FOR:
1. BREACH OF CONTRACT;2. FRAUD;3. CONVERSION;4. VIOLATION OF PENAL CODE
496;5. UNLAWFUL, FRAUDULENT &
UNFAIR BUSINESS PRACTICESACT (CAL. BUS. & PROF. CODE 17200 ET. SEQ.);
6. BREACH OF FIDUCIARY DUTY;7. NEGLIGENCE;8. NEGLIGENT
MISREPRESENTATION;9. ACCOUNTING;
10. CONSTRUCTIVE TRUST; and11. CIVIL CONSPIRACY.
DEMAND FOR JURY TRIAL
/ / /
/ / /
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Defendants conduct business, market and provide their services in the County of Alameda, State
of California.
THE PARTIES
THE PLAINTIFFS
4) Individual and representative plaintiff BETH MADRONES is a resident of Lake
In The Hills, Illinois, who contracted with SURROGENESIS for the latter to assist her with
third-party assisted reproduction services and, at the recommendation and/or insistence of
SURROGENESIS, deposited funds with defendant MICHAEL CHARLES.
5) Individual and representative plaintiff MARCIO MADRONES is a resident of
Lake In The Hills, Illinois, who contracted with SURROGENESIS for the latter to assist him
with third-party assisted reproduction services and, at the recommendation and/or insistence of
SURROGENESIS, deposited funds with defendant MICHAEL CHARLES.
THE DEFENDANTS
6) Plaintiffs are informed and believe and thereon allege that at all times alleged
herein defendant SURROGENESIS USA, INC. is a California Corporation doing business
throughout the United States of America and, in particular, Modesto, California.
7) Plaintiffs are informed and believe and thereon allege that at all times alleged
herein defendant SURROGENESIS, INC. is a defunct Nevada Corporation doing business
throughout the United States of America and has its principal place of business in Modesto,
California.
8) Plaintiffs are informed and believe and thereon allege that at all times alleged
herein defendant SURROGENESIS USA, LLC is a Delaware Limited Liability Company, doing
business throughout the United States of America and has its principal place of business in
Modesto, California.
9) Plaintiffs are informed and believe and thereon allege that defendant TONYA A.
COLLINS (hereinafter referred to herein as COLLINS) is an individual and resident of
Grapevine, Texas and the President and Chief Operating Officer (CEO) of SURROGENESIS
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USA, INC.; SURROGENESIS, INC. and SURROGENESIS USA, LLC. Plaintiffs are further
informed and believe and thereon allege that at all times alleged herein, defendant COLLINS
was an owner, officer, employee and/or agent of defendant MICHAEL CHARLES
INDEPENDENT FINANCIAL HOLDING GROUP, INC. Plaintiffs are further informed and
believe and thereon allege that at all times alleged herein, defendant COLLINS performed the
acts alleged herein while she was a resident of Modesto, California.
10) Plaintiffs are informed and believe and thereon allege that at all times alleged
herein defendant MICHAEL CHARLES INDEPENDENT FINANCIAL HOLDING GROUP,
INC. (hereinafter referred to herein as MICHAEL CHARLES) is a Nevada Corporation, doing
business throughout the United States of America and has its principal place of business in
Modesto, California.
11) Plaintiffs are informed and believe and thereon allege that defendant JACK
KISEROW (hereinafter referred to herein as KISEROW) is an individual and resident of
Sparks, Nevada, and the owner and an officer of defendant MICHAEL CHARLES. Plaintiffs
are informed and believe and thereon allege that at all times alleged herein, defendant
KISEROW performed the acts alleged herein while acting as an owner, officer, agent and
representative of MICHAEL CHARLES, doing business in Modesto, California.
12) The true names and capacities, whether individual, corporate, associate or
otherwise of Defendants DOES 1 through 250, inclusive, and each of their roles in this case, are
known to plaintiffs who therefore sue said Defendants by such fictitious names pursuant to Code
of Civil Procedure 474. Plaintiffs further allege that each of said fictitious Defendants is in
some manner responsible for the acts and occurrences set forth herein. Plaintiffs will amend the
Complaint to show their true names and capacities when the same are ascertained, along with
their roles and the manner in which each fictitious Defendant is responsible.
13) Plaintiffs are informed and believe, and thereon allege, that at all times mentioned
herein, each and every Defendant was the agent, servant, employee, joint venturer, partner,
subsidiary, and/or co-conspirator of each other Defendant and, that in performing or failing to
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otherwise inaccessible to them.
17) This class action seeks disgorgement of profits, restitution, injunctive relief and
actual and punitive damages, where allowed. Excluded from the Plaintiff class are Defendants,
members of Defendants immediate families, officers, directors, employees of Defendants and
any subsidiary affiliate entity in which a Defendants have a controlling interest, and the legal
representatives, heirs, successors and assigns of any excluded person or entity.
18) Plaintiffs claims are typical of the claims of the class because plaintiffs and all
class members sustained damages which arise out of Defendants conduct as alleged herein.
19) Plaintiffs are representative parties who will fully and adequately protect the
interests of the class members, and who have retained class counsel who are experienced and
competent in both class and unfair business practices litigation. Plaintiffs have no interests
which are contrary to or in conflict with those of the class they seek to represent. The number
and identity of the members of the class are determinable from Defendants records.
20) Plaintiffs know of no difficulty to be encountered in the management of this
action which would preclude its maintenance as a class action. Relief concerning plaintiffs
rights under the laws alleged herein and with respect to the class would be appropriate.
21) A class action is superior to other methods for the fair and efficient adjudication
of litigation, since individual joinder of all members of each class is impracticable. Even if any
class member could afford individual litigation, it would be unduly burdensome to the individual
courts. Individual litigation magnifies the delay and expense to all parties. By contrast, the class
action device presents far fewer management difficulties and provides the benefits of unitary
adjudication, economies of scale, and comprehensive supervision by a single court.
Concentrating this litigation in one forum would promote judicial economy and efficiency and
promote parity among the claims of individual class members as well as judicial consistency.
22) A class action presents fewer management difficulties than individual litigation,
conserves the resources of the parties and the court system and protects the rights of each class
member. Notice of the pendency of any resolution of this action can be provided to class
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members by mail, print, broadcast, Internet and multimedia publication. A class action will be
more efficient, and save judicial resources and reduce litigation costs, so that Defendants are able
to pay more of any recovery or other relief to class members as opposed to paying attorneys fees
and costs in duplicative litigation.
23) There is a well defined community of interests in the question of law and fact
between plaintiffs and the class. Questions of law and fact common to the members of the
aforesaid class predominate over any questions which may affect only individual members, in
that Defendants have acted on grounds generally applicable to the entire class. Among the
questions of law and fact common to the class are:
a. Whether defendant SURROGENESIS contracted with Plaintiffs to provide
Plaintiffs with an independent trust company tasked with properly safeguarding Plaintiffs funds;
b. Whether defendant SURROGENESIS breached its contracts with Plaintiffs to
provide Plaintiffs with an independent trust company tasked with properly safeguarding
Plaintiffs funds;
c. Whether defendant SURROGENESIS owed Plaintiffs a fiduciary duty to ensure
that Plaintiffs funds were deposited with an independent trust company that would properly
safeguard Plaintiffs funds;
d. Whether defendant SURROGENESIS breached its fiduciary duty to ensure that
Plaintiffs funds were deposited with an independent trust company that would properly safeguard
Plaintiffs funds;
e. Whether defendant MICHAEL CHARLES owed Plaintiffs a fiduciary duty to
properly safeguard Plaintiffs deposited funds from loss or theft;
f. Whether defendant MICHAEL CHARLES breached its fiduciary duty to
Plaintiffs to properly safeguard Plaintiffs deposited funds from loss or theft;
g. Whether Defendants converted Plaintiffs deposited funds for his, her or its own
benefit;
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h. Whether Defendants misrepresented to Plaintiffs that Plaintiffs funds would be
deposited with an independent trust company tasked with properly safeguarding Plaintiffs
funds;
i. Whether Defendants misrepresentations were made intentionally, with the intent
to defraud Plaintiffs into depositing their funds with MICHAEL CHARLES;
j. Whether Defendant misrepresentations were made negligently, resulting in
Plaintiffs into depositing their funds with MICHAEL CHARLES;
k. Whether Defendants conduct was unlawful;
l. Whether Defendants were unjustly enriched because of their misrepresentations;
m. Whether the members of the class have sustained damages and, if so, what is the
proper measure of damages;
n. Whether the members of the class are entitled to punitive damages; and
o. Whether the members of the class are entitled to other equitable relief.
FIRST CAUSE OF ACTION
(Breach of Contract Against SURROGENESIS and DOES 1-25)
24) Plaintiffs hereby incorporate by reference paragraphs 1 through 23 inclusive of
this Complaint, as though fully set forth in this cause of action. This cause of action is asserted
by all Plaintiffs against defendant SURROGENESIS.
25) Plaintiffs, and each of them, entered into a written contract with
SURROGENESIS (the SurroGenesis Contract) in substantively the identical form as that
attached hereto and incorporated herein as Exhibit A.
26) Pursuant to the terms of the Contract, SURROGENESIS promised to set up an
independent trust fund for the purpose of making fee payments to Plaintiffs intended
surrogates and for the payment of other expenses related to the surrogacy process. Plaintiffs, and
each of them, understood that the term independent meant that the their funds would be
delivered in trust to a company unrelated in any manner to SURROGENESIS, its officers and
employees, and acting in accordance with the SurroGenesis Contract terms, which would then
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ensure the safety and availability of Plaintiffs funds for the purposes of satisfying their financial
obligations with their intended surrogates.
27) SURROGENESIS, in addition to requiring that Plaintiffs agree to the
SurroGenesis Contract, further required that Plaintiffs, and each of them, agree to and execute an
Agreement For Management Of Trust Account, in substantively the identical form as that
attached hereto and incorporated herein as Exhibit B.
28) The Agreement For Management of Trust Account provided that
SURROGENESIS was to administer Plaintiffs trust accounts, the funds of which were to be
deposited with a company identified by SURROGENESIS to be held for safekeeping for the
benefit of Plaintiffs. According to the terms of the Agreement For Management Of Trust
Account, the funds deposited with the trust company were to be clearly segregated from any
accounts holding funds to which SURROGENESIS, after withdrawing its fees, had any claim.
29) The company that SURRGENESIS identified and selected for handling Plaintiffs
trust accounts, and each of them, was MICHAEL CHARLES.
30) Plaintiffs are informed and believe and thereon allege that SURROGENESIS
breached the SurroGenesis Contract with Plaintiffs, and each of them, in that MICHAEL
CHARLES was not an independent trust company. Rather, Plaintiffs are informed and believe
and thereon allege that MICHAEL CHARLES was, for all intents and purposes, operated and
controlled by COLLINS, the President and CEO of SURROGENESIS. Had Plaintiffs, and each
of them, known that MICHAEL CHARLES was operated and controlled by COLLINS, they
would never have agreed to MICHAEL CHARLES holding their funds in trust.
31) Starting in or about November 2008, Plaintiffs were made aware that their
intended surrogates were not receiving payments from MICHAEL CHARLES pursuant to their
surrogacy agreements, or that the payments sent to the surrogates, in the form of checks drawn
from Plaintiffs trust accounts held by MICHAEL CHARLES, were being rejected as NSF for
insufficient funds in those accounts.
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32) In or about March 2009, SURROGENESIS advised Plaintiffs, and each of them,
that the funds held in Plaintiffs trust accounts through MICHAEL CHARLES were gone and
that SURROGENESIS did not know what had happened to their trust funds.
33) Plaintiffs are informed and believe and thereon allege that as a result of
SURROGENESIS breach of the SurroGenesis Contract, whereby SURROGENESIS failed to
arrange for an independent company to safeguard Plaintiffs trust funds, Plaintiffs have been
damaged in that SURROGENESIS, COLLINS and DOES 1-25 were provided unfettered access
and control of Plaintiffs trust accounts and that sometime in the past year, SURROGENESIS,
COLLINS and DOES 1-25 converted Plaintiffs trust funds for their own benefit, or otherwise
denied Plaintiffs the use of or access to their trust funds.
34) Accordingly, as a direct result of SURROGENESIS breach of the SurroGenesis
Contract, Plaintiffs and the class have either lost the approximate $2,500,000.00 in funds they
deposited with MICHAEL CHARLES, or have otherwise been denied the use or access to those
funds.
SECOND CAUSE OF ACTION
(Fraud Against SURROGENESIS and DOES 26-50)
35) Plaintiffs hereby incorporate by reference paragraphs 1 through 34 inclusive of
this Complaint, as though fully set forth in this cause of action.
36) Plaintiffs are informed and believe and thereon allege that SURROGENESIS and
DOES 11-20 knew that the representations made in the SurroGenesis Contract entered into with
Plaintiffs, and each of them, on various dates in the past three (3) years, that Plaintiffs funds
would be deposited with an independent trust company, were false at the time the
SurroGenesis Contracts were entered into. Plaintiffs are informed and believe and thereon allege
that at all times relevant herein, SURROGENESIS knew that MICHAEL CHARLES was not an
independent trust company, but rather MICHAEL CHARLES was operated and controlled by
SURROGENESIS and/or COLLINS.
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37) Plaintiffs are informed and believe that SURROGENESIS and DOES 26-50
intended for Plaintiffs to reasonably rely on the representation in the SurroGenesis Contract that
their funds would be held in trust by an independent trust company.
38) Plaintiffs and the class were unaware of the falsity of the Defendants
representation that their funds would be held by an independent trust company and reasonably
relied upon the misrepresentations made by SURROGENESIS and DOES 26-50.
39) Had Plaintiffs and the class known that MICHAEL CHARLES was operated and
controlled by SURROGENESIS and/or COLLINS, they would never have agreed to MICHAEL
CHARLES holding their funds in trust.
40) Plaintiffs and the class have incurred damages as a result of SURROGENESIS
and DOES 26-50s intentional misrepresentations, as Plaintiffs and the class have either lost the
approximate $2,500,000.00 in funds they deposited with MICHAEL CHARLES, or have
otherwise been denied the use or access to those funds. In addition, Plaintiffs have suffered from
emotional distress, financial distress, annoyance and anxiety, as a result of Defendants actions
alleged herein, and seek damages in an amount to be determined at trial for the same.
THIRD CAUSE OF ACTION
(Conversion Against SURROGENESIS, COLLINS,
MICHAEL CHARLES and DOES 51-100)
41) Plaintiffs hereby incorporate by reference paragraphs 1 through 40 inclusive of
this Complaint, as though fully set forth in this cause of action.
42) At all times herein mentioned, Plaintiffs and the class were, and still are, the
owners and were, and still are, entitled to possession of the approximately $2,500,000.00 in
funds Plaintiffs deposited in trust with MICHAEL CHARLES.
43) Defendants, despite having knowledge that these trust funds belong to Plaintiffs,
continue to hold Plaintiffs trust funds, refuse to return Plaintiffs trust funds and have reaped
financial gain from their wrongful retention of Plaintiffs trust funds.
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44) As a direct and proximate cause of Defendants conversion of Plaintiffs trust
funds, Plaintiffs and the class have suffered damages, the full nature and extent of which are
presently unknown to Plaintiff, but estimated to be approximately $2,500,000.00, which will be
determined according to proof at trial. In addition, Plaintiffs have suffered from emotional
distress, financial distress, annoyance and anxiety, as a result of Defendants actions alleged
herein, and seek damages in an amount to be determined at trial for the same.
45) Defendants acts alleged above were willful, wanton, malicious, and oppressive,
and therefore justify the awarding of exemplary and punitive damages.
FOURTH CAUSE OF ACTION
(Violation of Penal Code 496 - Receiving and/or Concealing Stolen Property
Against SURROGENESIS, COLLINS, MICHAEL CHARLES and DOES 51-100)
46) Plaintiffs hereby incorporate by reference paragraphs 1 through 51 inclusive of
this Complaint, as though fully set forth in this cause of action.
47) Plaintiffs are informed and believe, and thereon allege, that at all times relevant to
this Complaint, Defendants violated California Penal Code section 496 by obtaining property
belonging to Plaintiffs by theft and knowingly withholding the property from Plaintiffs or by
aiding in obtaining and knowingly withholding said property.
48) Plaintiffs have been injured by Defendants violation of California Penal Code
section 496.
49) Pursuant to California Penal Code section 496(c), Plaintiffs and the class are
entitled to three times the amount of their actual damages, an amount to be proven at trial, cost of
suit, and their reasonable attorneys fees for prosecuting this action.
FIFTH CAUSE OF ACTION
(Unfair, Fraudulent & Unfair Business Practices Act Cal. Bus. & Prof. Code 17200 et.
seq. Against All Defendants)
50) Plaintiffs hereby incorporate by reference paragraphs 1 through 49 inclusive of
this Complaint, as though fully set forth in this cause of action.
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51) Defendants have engaged in and continue to engage in unlawful, fraudulent and
unfair practices, which are substantially likely to mislead the public, by representing to members
of the general public seeking assistance in third-party surrogacy services that their funds will be
held in trust by an independent trust company which, as set forth above, is false.
52) Plaintiffs are informed and believe and thereon allege that Defendants conduct
resulted in profits and pecuniary gain received from customers who contracted with
SURROGENESIS to provide third-party surrogacy services and hold their funds in trust with an
independent trust company.
53) The business acts and practices of defendants are unlawful, unfair and deceptive
within the meaning of the consumer protection statutes because, inter alia, Defendants engaged
in fraud by intentionally misrepresenting that Plaintiffs' funds would be held in trust by an
independent trust company, converted Plaintiffs' trust funds for their own use and benefit,
violated Penal Code 496 and otherwise engaged in acts that deceived, or were likely to deceive,
the public.
54) As a direct and proximate result of Defendants conduct, as set forth herein,
Defendants have received ill-gotten gains and/or profits, including, but not limited to money.
Therefore, Defendants were and are unjustly enriched. Pursuant to Business & Professions Code
17203, Plaintiffs and the class request restitution and/or restitutionary disgorgement of all
sums, including profits, obtained in violation of Business & Professions Code 17200, et seq.
55) Plaintiffs and the class seek injunctive relief, restitution and restitutionary
disgorgement of ill-gotten gains from Defendants as specifically provided in Business &
Professions Code 17203. Plaintiffs and the class seek injunctive relief, restitution and
restitutionary disgorgement of the ill-gotten gains from Defendants.
56) Plaintiffs engaged counsel to prosecute this action.
57) Plaintiffs and the class seek to enjoin Defendants from engaging in these wrongful
practices, as alleged herein, in the future. There is no other adequate remedy at law and if an
injunction is not ordered, Plaintiffs and the class will suffer irreparable harm.
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SIXTH CAUSE OF ACTION
(Breach of Fiduciary Duty Against SURROGENESIS, COLLINS, MICHAEL
CHARLES, KISEROW and DOES 1-50)
58) Plaintiffs hereby incorporate by reference paragraphs 1 through 34 inclusive of
this Complaint, as though fully set forth in this cause of action.
59) Defendants SURROGENESIS, COLLINS, MICHAEL CHARLES, KISEROW
and DOES 1 -50, and each of them, owed Plaintiffs a fiduciary duty to make sure that the funds
Plaintiffs deposited in trust with MICHAEL CHARLES would be kept safe, secure, protected
from theft and available to Plaintiffs to fund their third-party surrogacy contracts and related
expenses.
60) Defendants SURROGENESIS, COLLINS, MICHAEL CHARLES, KISEROW
and DOES 1-50, and each of them, breached their fiduciary duties to Plaintiffs and the class in
that they failed to arrange for Plaintiffs funds to be handled by an independent trust company,
failed to safeguard the funds from theft and/or otherwise failed to ensure that Plaintiffs funds
would be available to them for funding their third-party surrogacy contracts and related
expenses.
61) As a direct result of Defendants breach of their fiduciary duties, Plaintiffs and the
class have been damaged in the amount of approximately $2,500,000.00, as Plaintiffs have either
lost the funds they deposited with MICHAEL CHARLES, or have otherwise been denied the use
or access to those funds. In addition, Plaintiffs and the class have suffered from emotional
distress, financial distress, annoyance and anxiety, as a result of Defendants actions alleged
herein, and seek damages in an amount to be determined at trial for the same.
SEVENTH CAUSE OF ACTION
(Negligence Against All Defendants)
62) Plaintiffs hereby incorporate by reference paragraphs 1 through 34 inclusive of
this Complaint, as though fully set forth in this cause of action.
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63) Defendants, and each of them, owed Plaintiffs a duty to make sure that the funds
Plaintiffs deposited in trust with MICHAEL CHARLES would be kept safe, secure, protected
from theft and available to Plaintiffs to fund their third-party surrogacy contracts and related
expenses.
64) Defendants, and each of them, breached their duties to Plaintiffs and the class in
that they negligently failed to arrange for Plaintiffs funds to be handled by an independent trust
company, negligently failed to safeguard the funds from theft and/or otherwise negligently failed
to ensure that Plaintiffs funds would be available to them for funding their third-party surrogacy
contracts and related expenses.
65) As a direct result of Defendants negligence, Plaintiffs and the class have been
damaged in the amount of approximately $2,500,000.00, as Plaintiffs have either lost the funds
they deposited with MICHAEL CHARLES, or have otherwise been denied the use or access to
those funds. In addition, Plaintiffs and the class have suffered from emotional distress, financial
distress, annoyance and anxiety, as a result of Defendants actions alleged herein, and seek
damages in an amount to be determined at trial for the same.
EIGHTH CAUSE OF ACTION
(Negligent Misrepresentation Against SURROGENESIS, COLLINS, MICHAEL
CHARLES, KISEROW and DOES 1-50)
66) Plaintiffs hereby incorporate by reference paragraphs 1 through 34 inclusive of
this Complaint, as though fully set forth in this cause of action.
67) Plaintiffs are informed and believe and thereon allege that Defendants represented
to Plaintiffs and the class, and each of them, through the SurroGenesis Contract and otherwise,
that Plaintiffs funds would be deposited with an independent trust company. Plaintiffs are
informed and believe and thereon allege that Defendants statements were false at the time the
SurroGenesis Contracts were entered into. Plaintiffs are informed and believe and thereon allege
that at all times relevant herein, SURROGENESIS knew that MICHAEL CHARLES was not an
independent trust company, but rather MICHAEL CHARLES was operated and controlled by
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SURROGENESIS and/or COLLINS.
68) Plaintiffs are informed and believe that SURROGENESIS and DOES 1-50
intended for Plaintiffs to reasonably rely on the representation in the SurroGenesis Contract that
their funds would be held in trust by an independent trust company.
69) Plaintiffs and the class were unaware of the falsity of the representation that their
funds would be held by an independent trust company and reasonably relied upon the
misrepresentations made by SURROGENESIS and DOES 1-50, as they had no reason not to
believe the representations at the time they were made.
70) Had Plaintiffs and the class known that MICHAEL CHARLES was operated and
controlled by COLLINS, they would never have agreed to MICHAEL CHARLES holding their
funds in trust.
71) Plaintiffs and the class have incurred damages as a result of SURROGENESIS
and DOES 1-50s intentional misrepresentations, as Plaintiffs have either lost the approximate
$2,500,000.00 in funds they deposited with MICHAEL CHARLES, or have otherwise been
denied the use or access to those funds. In addition, Plaintiffs and the class have suffered from
emotional distress, financial distress, annoyance and anxiety, as a result of Defendants actions
alleged herein, and seek damages in an amount to be determined at trial for the same.
NINTH CAUSE OF ACTION
(Accounting Against All Defendants)
72) Plaintiffs hereby incorporate by reference paragraphs 1 through 71 inclusive of
this Complaint, as though fully set forth in this cause of action.
73) Plaintiffs and the class are unable to ascertain the exact amount of funds they
placed in trust with MICHAEL CHARLES and the amount of funds, if any, that remain in any of
Defendants possession, custody or control. An unknown balance is due to Plaintiffs that cannot
be ascertained without and accounting, the means by which are within the knowledge of
Defendants.
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74) Accordingly, Plaintiffs seek an Order by the Court directing an equitable
accounting of all funds placed in deposit with MICHAEL CHARLES and the amount of funds
remaining in Defendants possession, custody or control.
TENTH CAUSE OF ACTION
(Constructive Trust Against All Defendants)
75) Plaintiffs hereby incorporate by reference paragraphs 1 through 87 inclusive of
this Complaint, as though fully set forth in this cause of action.
76) Defendants knowingly took possession of specific property, namely funds,
belonging to Plaintiffs and the class, knowing they had no entitlement to those funds. The funds
held by Defendants can be traced to Plaintiffs deposit of their funds with MICHAEL
CHARLES, which rightfully belong to Plaintiffs and the class.
77) Because of Defendants wrongful acts, Plaintiffs and the class were deprived of
their property, specifically the funds deposited in trust with MICHAEL CHARLES, which are
now held by Defendants. Defendants breach of contract, fraud, conversion, negligence and
other wrongful acts have caused and will continue to cause Defendants to be unjustly enriched.
78) As a proximate result of Defendants wrongful acts as alleged herein, Plaintiffs
and the class are entitled to a constructive trust in which Defendants, as constructive trustees,
should be required to hold all income, profits, commissions, fees, revenues and other funds,
received by Defendants as a result of their wrongful acts, for the benefit of Plaintiffs and the
class. Plaintiffs and the class are entitled to a constructive trust as against all Defendants who
have gained financially as a result of Defendants wrongful acts.
ELEVENTH CAUSE OF ACTION
(Civil Conspiracy Against All Defendants)
79) Plaintiffs hereby incorporate by reference paragraphs 1 through 78 inclusive of
this Complaint, as though fully set forth in this cause of action.
80) Plaintiffs are informed and believe and thereon allege that sometime between
January 2007 and the present, Defendants did knowingly and willfully conspire and agree among
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themselves to: (1) misrepresent to Plaintiffs and the class that their trust funds would be handled
by an independent trust company; (2) entice Plaintiffs and the class into depositing their trust
funds with MICHAEL CHARLES; and (3) convert Plaintiffs trust funds for their own use and
benefit as set forth herein.
81) In furtherance of said conspiracy and agreement, the aforementioned Defendants
engaged in fraudulent representations, omissions and concealment of facts, acts of cover-up and
statements calculated to obtain Plaintiffs trust funds for the benefit of Defendants and as set
forth in detail in the foregoing paragraphs, which are hereby incorporated herein as though set
forth in full.
82) All of the actions of Defendants set forth in the preceding paragraphs,
incorporated herein, were in violation of the rights of Plaintiffs and the class and committed in
furtherance of the aforementioned conspiracies and agreements. Moreover, each of the
aforementioned Defendants lent aid and encouragement and knowingly financed, ratified and
adopted the acts of the other. As a proximate result of the wrongful acts herein alleged, Plaintiffs
and the class have suffered significant damage, which is estimated to be $2,500,000.00, or
otherwise determined at trial.
83) These acts constituted malicious conduct which was carried on by said
Defendants with willful and conscious disregard for Plaintiffs rights with the intention of
misappropriating Plaintiffs trust funds or otherwise causing injury, and was despicable conduct
that subjected Plaintiffs to a cruel and unjust hardship so as to justify an award of exemplary and
punitive damages. Accordingly, punitive damages should be awarded against Defendants to
punish them and deter them and other such persons from committing such wrongful and
malicious acts in the future.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and all other similarly situated,
pray for relief and judgment against Defendants as follows:
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1. That the court enter an order certifying the plaintiff class and any appropriate sub-
class thereof, and appointing plaintiffs and their counsel to represent the class (All Causes of
Action);
2. For damages according to proof (as to the First, Second, Third, Fourth, Sixth,
Seventh and Eighth Causes of Action against Defendants);
3. That the Court enter an order for restitution and/or restitutionary disgorgement of
profits wrongfully obtained by the Defendants (Fifth Cause of Action);
4. That Plaintiffs and the class be awarded punitive damages sufficient to deter and
make an example of Defendants (As to the Second, Third and Eleventh Causes of Action);
5. For three times the amount of Plaintiffs actual damages, an amount to be proven
at trial, cost of suit, and their reasonable attorneys fees for prosecuting this action, pursuant to
California Penal Code section 496(c);
6. For preliminary and injunctive relief placing a hold on any and all trust or other
accounts established on Plaintiffs behalf by MICHAEL CHARLES and/or SURROGENESIS
(All Causes of Action);
7. For preliminary and injunctive relief on Plaintiffs behalf requiring Defendants to
discontinue representing to the general public seeking third-party surrogacy assistance that their
funds will be handled by an independent trust company (Fifth Cause of Action);
8. For reasonable attorneys fees (as permitted under Penal Code 496, Code of Civil
procedure 1021.5, or as otherwise allowable under law);
9. Pre-judgment and post-judgment interest as permitted by California law;
10. For Plaintiffs costs incurred and;
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DEMAND FOR JURY TRIAL
Plaintiffs, Individually and on behalf of All Others Similarly Situated, hereby demand
that this matter be tried by jury.
DATED: April ___, 2009 LAW OFFICE OF WAYNE E. BEAUDOINA Professional Corporation
By:
Wayne E. BeaudoinAttorneys for Plaintiffs, Individually and on behalf ofAll Others Similarly Situated
DATED: April ___, 2009 PEARSON SIMON WARSHAW & PENNY LLP
By:
Daniel L. WarshawAttorneys for Plaintiffs, Individually and on behalf ofAll Others Similarly Situated
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