Loeb v. Vergara

• Decision Date: 27 January 2021
• Docket Number: No. 2020-CA-0261,2020-CA-0261
• Citation: 313 So.3d 346
• Parties: Nick LOEB, Human Embryo #3 HB-A, Embryo #4 HB-A v. Sofia VERGARA
• Court: Court of Appeal of Louisiana — District of US

313 So.3d 346

Nick LOEB, Human Embryo #3 HB-A, Embryo #4 HB-A

v.Sofia VERGARA

No. 2020-CA-0261

Court of Appeal of Louisiana, Fourth Circuit.

JANUARY 27, 2021

William A. Roe, ATTORNEY AT LAW, 2011 Milan Street, New Orleans, LA 70115, Pierre V. Miller, II, PATRICK, MILLER, BURNSIDE & BELLEAU, L.L.C., 400 Poydras Street, Suite 1680, Texaco Center, New Orleans, LA 70130, Jalesia McQueen, McQueen Kuenzel, LLC, 10805 Sunset Office Drive, Suite 300, St. Louis, MO 63127, COUNSEL FOR PLAINTIFF/APPELLANT

Kyle D. Schonekas, Ellie T. Schilling, SCHONEKAS EVANS McGOEY & McEACHIN, L.L.C., 909 Poydras Street, Suite 1600, New Orleans, LA 70112, George Pivach II, PIVACH, PIVACH, HUFFT, THRIFFILEY & DUNBAR, L.L.C., 8311 Highway 23, Suite 104, P. O. Box 7125, Belle Chasse, LA 70037, Fred Silberberg, FRED SILBERBERG PROFESSIONAL CORP., 1223 Wilshire Blvd., No. 451, Santa Monica, CA 90403, CA 90212, Godfrey Bruce Parkerson, Matthew T. Habig, Jamie F. Jacks, PLAUCHE’ MASELLI PARKERSON, LLP, 701 Poydras Street, Suite 3800, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE, James Harmon, 400 Poydras Street, Suite 1680, New Orleans, LA 70130

(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods )

This case presents a res nova issue for the State of Louisiana; it involves the resolution of whether the Uniform Child Custody Jurisdiction and Enforcement Act codified in La. R.S. 13:1801 ("UCCJEA") applies to a petition for custody over two embryos pursuant to the Louisiana Human Embryo Statutes codified in La. R.S. 9:121 -133 ("Human Embryo Statutes").

The current action involves a dispute between two donors over two embryos that are now, and have always been, since their creation, physically located in a reproductive facility in the State of California. Plaintiffs-Appellants, who purport to be domiciled and residents of Louisiana, filed a lawsuit in the 25th Judicial District Court in Plaquemines Parish, Louisiana to establish custodial rights over the embryos. Defendant-Appellee, a resident of the State of California, filed a lawsuit against one of the Plaintiffs-Appellants, prior to the instant action being filed against her. In response to the instant action, Defendant-Appellee filed various dilatory, declinatory and peremptory exceptions. The trial court sustained all of the exceptions and dismissed the lawsuit with prejudice. It is from that judgment that Plaintiffs-Appellants have filed the instant appeal. For the reasons that follow, we reverse in part, amend in part, affirm in part and render in part, the judgment of the trial court.

FACTUAL BACKGROUND

In January 2010, Plaintiff-Appellant, Nick Loeb ("Mr. Loeb") and Defendant-Appellee, Sofia Vergara ("Ms. Vergara") met in West Hollywood, California and began a romantic relationship. Ms. Vergara, an actress and model, was, at all relevant times, and continues to be, a resident of the State of California. Mr. Loeb was a citizen of the State of Florida, who also maintained a residence in New York City. On July 10, 2012, Mr. Loeb and Ms. Vergara became engaged to be married.

In early 2013, Mr. Loeb and Ms. Vergara contracted with Assisted Reproductive Technologies ("ART") in Beverly Hills, California to undergo in vitro fertilization ("IVF")¹ in order to produce biological children to be carried to term by a gestational surrogate. Ms. Vergara and Mr. Loeb selected a friend and employee of Ms. Vergara to be the surrogate and entered into a "Gestational Surrogate Parenting Agreement" with her. Subsequently, Ms. Vergara and Mr. Loeb underwent several IVF treatments, which resulted in several pre-embryos.² Genetic testing was performed on the pre-embryos and it was determined that only two of the pre-embryos were viable. Ms. Vergara and Mr. Loeb attempted two (2) separate unsuccessful implantations of the pre-embryos into the surrogate's uterus.

During the summer of 2013, Ms. Vergara and Mr. Loeb met in Los Angeles, California with a representative from a surrogacy agency to discuss finding another gestational surrogate. Mr. Loeb avers that he, along with Ms. Vergara and the agency signed a "Surrogacy Program Retainer Agreement." After the agency presented two (2) candidates to Ms. Vergara and Mr. Loeb, Ms. Vergara, via email dated June 24, 2013, indicated to Mr. Loeb that she wanted to meet the candidates in person. In turn, Mr. Loeb sent an email to the agency indicating that he and Ms. Vergara would plan to meet the candidates in August 2013, when he and Ms. Vergara would both be in California.

On November 16, 2013, Mr. Loeb and Ms. Vergara executed another contract with ART to initiate another round of IVF. They executed a "General Informed Consent for Procedures Involved in [IVF]" ("the contract") which included a "Directive for Partners Regarding the Storage and Disposition of CryoPreserved Materials Which May Include Embryos,"³ ("the Directive") requiring both parties to consent to uterine transfer of the embryos.⁴ The Directive provided three (3) options for the embryos in the event of the death of either Ms. Vergara or Mr. Loeb: (1) donate the embryos to research; (2) thaw the embryos with no further action; or (3) if one party died, allow the embryos to be used in a living partner. Mr. Loeb asserts that Ms. Vergara forced him to choose option number two (2).

The latest IVF procedure resulted in several pre-embryos. However, genetic testing of the pre-embryos revealed that only two were viable, to wit: female pre-embryos, Plaintiffs-Appellants, Human Embryo #3 HB-A and Embryo #4 HB-A ("the embryos").⁵ Because Mr. Loeb and Ms. Vergara had not yet chosen a surrogate, the embryos were cryopreserved at ART.

According to Ms. Vergara, in March 2014, she and Mr. Loeb began discussing ending their relationship. She asserts that they spent several weeks in Florida together in April 2014, where they saw a therapist and agreed to end their relationship.

From May 1, 2014, until July 4, 2014, Ms. Vergara rented a house in New Orleans, Louisiana, while she was filming a movie in the city. On May 3, 2014, Ms. Vergara and Mr. Loeb attended the White House's Correspondents’ Dinner together as they had previously planned. During that time, Mr. Loeb asked Ms. Vergara if he could stay with her in New Orleans while he performed his first stint as a volunteer deputy at the Plaquemines Parish Sheriff's Office. Ms. Vergara asserts that Mr. Loeb arrived on May 7, 2014, and they resided together until he left on May 12, 2014. They made a public announcement about their breakup on May 23, 2014. Ms. Vergara claims that Mr. Loeb returned to New Orleans in June 2014, in an attempt to reconcile with Ms. Vergara, to no avail.

Contrarily, Mr. Loeb asserts that on May 12, 2014, he and Ms. Vergara argued about their relationship, and their relationship did not end until May 13, 2014, while he was driving to the Louis Armstrong New Orleans International Airport. He asserts that even after the relationship ended, he repeatedly attempted to communicate with Ms. Vergara about the embryos and his desire to have them transferred to a surrogate for further development, but Ms. Vergara was unwilling. He also asserts that he asked Ms. Vergara to confirm that the embryos would not be destroyed, and to allow the surviving person to have custody if the other should die, or to give him full custody. Allegedly, Ms. Vergara refused all of his requests.

Ms. Vergara disputes Mr. Loeb's assertions and avers that Mr. Loeb did not bring up the status of the pre-embryos when their relationship ended. According to Ms. Vergara, in September 2014, she received a telephone message from a lawyer representing Mr. Loeb asking for her attorney's contact information, but she never responded. Instead, Ms. Vergara, who was in New York at the time, sent a text message to Mr. Loeb asking why a lawyer had contacted her. She met with Mr. Loeb, who, for the first time she claims, brought up the pre-embryos. She asserts that she was surprised that Mr. Loeb wanted to try to bring the pre-embryos to term and told him that she wanted them to remain cryopreserved.

Irrespective of whose version of events is correct surrounding their breakup, presently, the embryos remain in cryopreservation

at ART in California, where they were created and have always been located.

PROCEDURAL HISTORY

On August 29, 2014,⁶ Mr. Loeb filed suit against Ms. Vergara and ART in Santa Monica Superior Court located in California seeking a declaratory judgment for full custody of the pre-embryos, as well as an order directed to ART to allow him to bring the embryos to term without Ms. Vergara's consent.⁷ In that suit, Mr. Loeb asserted that venue was proper in California because the acts and omissions giving rise to the suit occurred in California. Also, in that lawsuit, Mr. Loeb asserts that he was a citizen of the State of Florida.

On November 30, 2016, Mr. Loeb created the Louisiana Trust ("the Trust"). On December 5, 2016, Mr. Loeb modified the Trust to benefit Emma and Isabella, the names he gave to the embryos, if they were born alive; the Trust was then renamed the "Emma and Isabella Louisiana Trust No. 1." James Charbonnet, a Louisiana attorney, was named as trustee.

On December 6, 2016, Mr. Loeb filed a request for voluntary dismissal of his California lawsuit, without prejudice. Ms. Vergara asserts that Mr. Loeb dismissed the lawsuit because during the litigation it had come to light that two of Mr. Loeb's former girlfriends had abortions, which called into question Mr. Loeb's intentions for filing the California lawsuit.⁸ According to Ms. Vergara, when Mr. Loeb failed to disclose the identities of the former girlfriends and disobeyed a court order to do so, Ms. Vergara filed a motion for discovery sanctions, which was set for hearing one day after a previously filed motion for summary judgment. However, according to Ms. Vergara, less than one week before the hearing date on the motions, Mr. Loeb voluntarily dismissed his...