Vergara v. Loeb

• Decision Date: 22 September 2022
• Docket Number: B313234
• Parties: SOFIA VERGARA, Plaintiff and Respondent, v. NICHOLAS LOEB, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

SOFIA VERGARA, Plaintiff and Respondent,
v.
NICHOLAS LOEB, Defendant and Appellant.

B313234

California Court of Appeals, Second District, Fifth Division

September 22, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC650580 Rafael A. Ongkeko, Judge. Affirmed.

Merritt J. McKeon for Defendant and Appellant.

Fred Silberberg Family Law and Fred Silberberg; Jeffer Mangels Butler &Mitchell and Susan Allison for Plaintiff and Respondent.

MOOR, J.

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Defendant Nicholas Loeb appeals from the judgment in favor of plaintiff Sofia Vergara, following an order granting Vergara's motion for summary adjudication under Code of Civil Procedure section 437c, subdivision (f).^[1] After a de novo review of the evidence and legal arguments relevant to the defenses Loeb asserted against Vergara's claims for declaratory relief and preliminary injunction, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We begin with a review of the undisputed facts and relevant procedural history of prior and current litigation between Loeb and Vergara.

A. The Parties' Relationship and the Form Directive

In 2013, Vergara and Loeb underwent in vitro fertilization (IVF) treatments at a fertility clinic in California (the clinic), which resulted in the creation of two pre-embryos (the preembryos) that were then cryopreserved at the clinic.^[2]

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Prior to the treatments, Loeb and Vergara executed a document entitled "Directive for Partners Regarding Storage and Disposition of Cryopreserved Material Which May Include Embryos" (the Form Directive). The Form Directive provided, in pertinent part, that the "purpose of this document is to declare our intentions and desires with respect to the storage, use and disposition of our cryopreserved material which may include embryos which are created by and stored at the [clinic]. [¶] . . . [¶] [A]ny and all changes to [this Form Directive] must be mutually agreed to between both partners. One person cannot

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use the [c]ryopreserved [m]aterial to create a child (whether or not he or she intends to rear the child) without explicit written consent of the other person (either by notary or witnessed by [a clinic p]hysician staff member or [its] staff). All changes must be in writing and signed by both parties. Unilateral changes cannot be honored by the [clinic]." (Italics added.)

Before the pre-embryos were implanted successfully into a surrogate, Loeb and Vergara ended their relationship. Vergara has never provided consent to Loeb for use of the pre-embryos.

B. The Santa Monica Action

On August 29, 2014, Loeb filed an action against Vergara and the clinic in the Superior Court of Los Angeles County, seeking to establish and enforce a right to use the pre-embryos for implantation into a surrogate (the Santa Monica action). Loeb asserted five causes of action for declaratory relief, one for breach of oral contract, and one for promissory estoppel. In support of those claims, he alleged, among other things, that: the Form Directive signed by the parties prior to the fertility treatments did not invalidate the parties' preexisting oral agreement that the pre-embryos would be immediately implanted into a surrogate; the Form Directive was not an agreement with Vergara, but instead a consent form intended to benefit and protect the clinic; and the Form Directive was unenforceable because there was no consideration, it was uncertain, and he signed it under duress. In his prayer for relief, Loeb sought declarations that: (1) he had a right to possession and custody of the pre-embryos to use them to create children; (2) Vergara was estopped from preventing him from implanting the pre-embryos

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into a surrogate; (3) the clinic's Form Directive executed by the parties was void and unenforceable; (4) the Form Directive was unconscionable; (5) the Form Directive was subject to rescission because Loeb signed it under duress; and (6) Vergara was an egg donor under the Family Code with no parental or financial obligations to any resulting children. (Vergara v. Loeb (Jan. 28, 2019, B286252) [nonpub. opn.] (the anti-SLAPP opinion.)

On December 6, 2016, on the eve of a hearing on Vergara's motion for sanctions based on discovery violations and for summary judgment/adjudication, Loeb voluntarily dismissed the Santa Monica action against Vergara without prejudice. On August 11, 2017, the trial court entered judgment after dismissal in favor of Vergara that included a cost award. (Vergara v. Loeb, supra, B286252.)

C. Louisiana Action I

On November 30, 2016, Loeb as settlor created the Nick Loeb Louisiana Trust No. 1 (the trust) for the future benefit of the two principal beneficiaries of the trust, his "two daughters, Isabella Loeb and Emma Loeb, who [were] presently in a cryopreserved embryonic state" at the clinic. Loeb designated a third party as trustee and funded the trust with an initial conveyance of $28,000 which, after Loeb's death, was to be used by the trustee, in his discretion, for the "health, education, maintenance, or support" of the principal beneficiaries.

On December 7, 2016, Loeb directed the filing of a lawsuit naming the pre-embryos, the trust, and the trustee as plaintiffs against Vergara in state court in Louisiana (the Louisiana Action I). Loeb was not personally a party to the Louisiana

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Action I. The complaint filed on behalf of the pre-embryos and the trust sought relief similar to what Loeb had sought on his own behalf in the Santa Monica action, including granting Loeb control over the pre-embryos and termination of Vergara's parental rights, as well as additional relief, including a finding that Vergara had tortiously interfered with the pre-embryos' ability to inherit from the trust by preventing transfer to a surrogate.

Vergara removed the Louisiana Action I to federal court. As noted by that court, "Louisiana has the most favorable state laws regarding the rights pertaining to IVF created embryos, which make them juridical people that have the right to sue and be sued and cannot be intentionally destroyed. [Citation.] The plaintiffs in this suit are the pre-embryos [and the trust]." (Vergara v. Loeb, supra, B286252.)

In the fall of 2017, the federal court dismissed Louisiana Action I for lack of personal jurisdiction over Vergara. (Vergara v. Loeb, supra, B286252.)

D. The Current Lawsuit, Anti-SLAPP Appeal

1. Vergara's Complaint

On February 14, 2017, before the Santa Monica action and the Louisiana Action I were dismissed, Vergara initiated the current lawsuit in Los Angeles Superior Court against Loeb. Her complaint sought declaratory relief and permanent injunctive relief, and asserted causes of action for breach of contract, promissory fraud, promissory estoppel, and malicious prosecution. Among other things, Vergara alleged that Loeb

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breached the parties' agreement in the Form Directive not to use the pre-embryos without her written consent by filing and litigating for two years the Santa Monica action and creating the trust to pursue the Louisiana Action I, which actions caused her to suffer damages in the form of two years of litigation costs. In addition to damages, Vergara alleged that Loeb's actions in litigating the Santa Monica action and creating the trust to pursue the Louisiana Action I entitled her to declaratory and injunctive relief to prevent Loeb from engaging in any future attempt to use the pre-embryos without her written consent. Vergara further alleged that Loeb's filing and litigation of the Santa Monica action supported a claim for malicious prosecution entitling her to damages.

2. Anti-SLAPP Motion and Appeal

In April 2017, Loeb filed a special motion to strike under section 425.16, often referred to as the anti-SLAPP statute.^[3] In November 2017, Loeb appealed the trial court's denial of his anti-SLAPP motion. In a plurality opinion filed on January 28, 2019, this Division reversed the court's denial of the anti-SLAPP motion as it related to the malicious prosecution claim only, but

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upheld the court's denial of Loeb's motion as to the remaining claims. (Vergara v. Loeb, supra, B286252.)

E. Louisiana Action II

On January 9, 2018, while the anti-SLAPP appeal remained pending, Loeb filed a petition on behalf of himself and the pre-embryos in Louisiana against Vergara (the Louisiana Action II), seeking custody of the pre-embryos pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as codified in Louisiana. Loeb's petition alleged he should be granted full custody of the pre-embryos because Vergara violated her "high duty of care and prudent administration" owed to the pre-embryos by refusing to allow them to be born. In a published opinion dated January 27, 2021, the Court of Appeal of Louisiana held, among other things, that the UCCJEA did not apply to pre-embryos or unborn children, and that the trial court correctly dismissed the case for lack of subject matter jurisdiction, lack of personal jurisdiction over the parties, and for improper venue. (Loeb v. Vergara (2021) 313 So.3d 346, 392, 395, 401.)

F. The Current Lawsuit, Motions for Summary Judgment and/or Adjudication

In late March 2020, both Loeb and Vergara filed motions seeking summary judgment and/or adjudication in the current case.

In his motion, Loeb sought the following determinations, among others: (1) the Form Directive is void as a matter of public

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policy for not complying with Health and Safety Code section 125315, because it did not address the disposition of the pre-embryos in the event of separation between Vergara and Loeb; (2) the Form Directive is an informational directive only, and not a legally enforceable contract between Vergara and Loeb; and (3) declaratory relief is not ripe for adjudication because no child was created from the pre-embryos. After a hearing on November 10, 2020, the trial court entered an order...