This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 08:32:22 (UTC).

SOFIA VERGARA VS NICHOLAS LOEB ET AL

Case Summary

On 02/14/2017 SOFIA VERGARA filed an Other lawsuit against NICHOLAS LOEB. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0580

  • Filing Date:

    02/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

VERGARA SOFIA

Defendants and Respondents

ART REPRODUCTIVE CENTER INC

DOES 1 TO 20

LOEB NICHOLAS

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SILBERBERG FRED ESQ.

SILBERBERG FRED

Defendant Attorneys

PAREDES ROBERT

PHILIPS PAUL N.

MCGRATH JENNIFER J.

CASPINO MICHAEL

 

Court Documents

REQUEST FOR ENTRY OF DEFAULT

10/26/2017: REQUEST FOR ENTRY OF DEFAULT

Certificate of Mailing for

12/17/2018: Certificate of Mailing for

Proof of Service by Mail

4/26/2019: Proof of Service by Mail

SUMMONS

2/14/2017: SUMMONS

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT NICHOLAS LOEB'S MOTION TO STRIKE PURSUANT TO CIV. PROC. CODE SECTION 425.16

4/14/2017: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT NICHOLAS LOEB'S MOTION TO STRIKE PURSUANT TO CIV. PROC. CODE SECTION 425.16

*REDACTED* NOTICE OF MOTION AND MOTION OF DEFENDANT NICHOLAS LOEB TO STRIKE COMPLAINT PURSUANT TO CIV. PROC. CODE 425.16

4/14/2017: *REDACTED* NOTICE OF MOTION AND MOTION OF DEFENDANT NICHOLAS LOEB TO STRIKE COMPLAINT PURSUANT TO CIV. PROC. CODE 425.16

PROOF OF SERVICE: 1. PLAINTIFF SOFIA VERGARA'S REPLY IN SUPPORT OF HER MOTION TO ALLOW USE OF DISCOVERY AND TRANSCRIPTS FROM LOS ANGELES SUPERIOR COURT PROCEEDING NO. SS 024581 IN THE OPPOSITIONS TO D

7/11/2017: PROOF OF SERVICE: 1. PLAINTIFF SOFIA VERGARA'S REPLY IN SUPPORT OF HER MOTION TO ALLOW USE OF DISCOVERY AND TRANSCRIPTS FROM LOS ANGELES SUPERIOR COURT PROCEEDING NO. SS 024581 IN THE OPPOSITIONS TO D

RULING RE SUBMITFED MATTER (PLAINTIFF'S MOTION TO USE DISCOVERY FROM LASC CASE SS024581)

7/21/2017: RULING RE SUBMITFED MATTER (PLAINTIFF'S MOTION TO USE DISCOVERY FROM LASC CASE SS024581)

Minute Order

7/21/2017: Minute Order

Minute Order

8/3/2017: Minute Order

DECLARATION OF FRED SILBERBERG IN SUPPORT OF PLAINTIFF VERGARA'S EX PARTE APPLICATION FOR THE COURT TO ENTER A PROTECTIVE ORDER

8/21/2017: DECLARATION OF FRED SILBERBERG IN SUPPORT OF PLAINTIFF VERGARA'S EX PARTE APPLICATION FOR THE COURT TO ENTER A PROTECTIVE ORDER

PLAINTIFF'S NOTICE OF ASSOCIATION OF COUNSEL

8/28/2017: PLAINTIFF'S NOTICE OF ASSOCIATION OF COUNSEL

DEFENDANT NICHOLAS LOEB'S REPLY TO PLAINTIFF'S OPPOSITION TO THE DEMURRER TO PLAINTIFF'S COMPLAINT

9/15/2017: DEFENDANT NICHOLAS LOEB'S REPLY TO PLAINTIFF'S OPPOSITION TO THE DEMURRER TO PLAINTIFF'S COMPLAINT

PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PLAINTIFF'S EVIDENCE OFFERED IN OPPOSITION TO MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 425.16

9/20/2017: PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PLAINTIFF'S EVIDENCE OFFERED IN OPPOSITION TO MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 425.16

PROOF OF SERVICE: CASE MANAGEMENT STATEMENT

9/22/2017: PROOF OF SERVICE: CASE MANAGEMENT STATEMENT

NOTICE OF INTENT NOT TO AMEND COMPLAINT AFTER RULING ON DEMURRER.

10/6/2017: NOTICE OF INTENT NOT TO AMEND COMPLAINT AFTER RULING ON DEMURRER.

PROOF OF SERVICE: 1. REQUEST FOR ENTRY OF DEFAULT 2. PROOFS OF SERVICE

10/27/2017: PROOF OF SERVICE: 1. REQUEST FOR ENTRY OF DEFAULT 2. PROOFS OF SERVICE

NOTICE OF FILING OF NOTICE OF APPEAL U(UNLIMITED JURISDICTION)

11/13/2017: NOTICE OF FILING OF NOTICE OF APPEAL U(UNLIMITED JURISDICTION)

139 More Documents Available

 

Docket Entries

  • 06/15/2020
  • Hearingat 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 06/01/2020
  • Hearingat 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/17/2019
  • Hearingat 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Attorney Fees

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  • 09/10/2019
  • Hearingat 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to be Admitted Pro Hac Vice

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  • 08/14/2019
  • Hearingat 15:45 PM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)

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  • 08/09/2019
  • DocketMotion to Be Admitted Pro Hac Vice; Filed by Nicholas Loeb (Defendant)

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  • 07/31/2019
  • DocketNotice of Lien; Filed by Nicholas Loeb (Defendant)

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  • 07/11/2019
  • Docketat 08:30 AM in Department 73; Status Conference - Held

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  • 07/11/2019
  • Docketat 08:30 AM in Department 73; Hearing on Motion for Attorney Fees ((Res ID5757)) - Held - Continued

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  • 07/11/2019
  • DocketCase Management Order; Filed by Clerk

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289 More Docket Entries
  • 03/01/2017
  • DocketPROOF OF SERVICE: 1. DEMAND FOR JURY TRIAL; ETC.

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  • 02/23/2017
  • DocketDemand for Jury Trial; Filed by Sofia Vergara (Plaintiff)

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  • 02/23/2017
  • DocketCIVIL DEPOSIT

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  • 02/23/2017
  • DocketDEMAND FOR JURY TRIAL

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  • 02/23/2017
  • DocketReceipt; Filed by Sofia Vergara (Plaintiff)

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  • 02/23/2017
  • DocketNotice; Filed by Sofia Vergara (Plaintiff)

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  • 02/23/2017
  • DocketNOTICE OF POSTING JURY FEES.

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  • 02/14/2017
  • DocketComplaint; Filed by Sofia Vergara (Plaintiff)

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  • 02/14/2017
  • DocketSUMMONS

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  • 02/14/2017
  • DocketCOMPLAINT FOR DECLARATORY RELIEF [CCP 1060]; PERMANENT INJUNCTIVE RELIEF [CCP 526(A)1; BREACH OF CONTRACT; PROMISSORY FRAUD; PROMISSORY ESTOPPEL; AND MALICIOUS PROSECUTION.

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Tentative Rulings

Case Number: BC650580    Hearing Date: January 28, 2021    Dept: 73

1/28/2021

Dept. 73

Rafael Ongkeko, Judge presiding

SOFIA VERGARA v. NICHOLAS LOEB, et al. (BC650580)

Counsel for Plaintiff/moving party: Fred Silberberg; Susan Allison, Lauren Babst (Jeffer Mangels Butler & Mitchell LLP)

Counsel for Defendant: Michael W. Caspino, Michael Weiler (Buchalter); Jalesia McQueen (McQueen Kuenzel, LLC)

VERGARA’s MOTION FOR TERMINATING AND MONETARY SANCTIONS (filed 12/9/2021)

TENTATIVE RULING

None at this time. The court intends to hear argument on Plaintiff’s MSA and issue a ruling before hearing this sanctions motion.

Further, the court will conduct an informal discovery conference in an effort to narrow or eliminate the need to hear this motion. Loeb is ordered to lodge all unredacted copies of his papers at least 10 days before the IDC.  The IDC will be scheduled on _______________.

Finally, further briefing may be requested on this sanctions motion depending on the MSA ruling.

The sanctions motion is continued to ________________.

Case Number: BC650580    Hearing Date: January 08, 2021    Dept: 73

1/8/2021

Dept. 73

Rafael Ongkeko, Judge presiding

SOFIA VERGARA v. NICHOLAS LOEB, et al. (BC650580)

Counsel for Plaintiff: Fred Silberberg; Susan Allison, Lauren Babst (Jeffer Mangels Butler & Mitchell LLP)

Counsel for Defendant: Michael W. Caspino, Michael Weiler (Buchalter); Jalesia McQueen (McQueen Kuenzel, LLC)

Counsel for Defendant Art Reproductive Center, Inc.: Paul Philips; Samantha Mirabello

MATTER:

VERGARA’S MOTION FOR SUMMARY ADJUDICATION (filed 3/20/2020)

The court issues its tentative ruling and intends to set the matter for further hearing on a date to be determined, from among the following choices: Jan. 19, 21, 26, 28, 2021 at 10 a.m. The parties shall meet and confer and advise the clerk within the next three court days.

TENTATIVE RULING

Vergara’s motion for summary adjudication:

1. First Cause of Action for Declaratory Relief: The court grants summary adjudication on the first cause of action for declaratory relief, in part, as follows:

a. The court grants declaratory relief and makes a judicial determination that the form directive entered by the parties on November 16, 2013 is a valid enforceable contract.

b. The court grants declaratory relief and makes a judicial determination that, by the express terms of the form directive, “any unilateral action undertaken by Defendant Loeb that seeks to cause the implantation of the Pre-Embryos in a surrogate, by other means of gestation, constitutes a violation” of the form directive.

2. Third Cause of Action for Breach of Contract: The court grants summary adjudication, in part, on Vergara’s third cause of action for breach of contract and finds that the undisputed facts establish that, by Loeb’s actions in the Louisiana actions, Loeb materially frustrated the purpose and intent of the Form Directive and, therefore, breached the Form Directive. As a result of that breach, Vergara is entitled to declaratory relief and a judicial determination that Loeb breached the Form Directive by his conduct in the Louisiana actions. As for Vergara’s other request for relief (i.e., essentially specific performance (perform the contract) and injunctive relief (prohibit certain actions), the court discusses these issues in the next section.

3. Second Cause of Action for Injunction: The court grants summary adjudication on the second cause of action for injunction, in part, as follows: Loeb is permanently enjoined from using “the Cryopreserved Material 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 ART Physician staff member or ART staff.)”

DISCUSSION

Brief factual and procedural history

Plaintiff Sofia Vergara (“Vergara”) and Defendant Nicholas Loeb (“Loeb”) were formerly in a romantic relationship and were, at one time, engaged to be married.  During their relationship, the parties discussed the possibility of having a child together using in-vitro fertilization (“IVF”) and a third-party surrogate.  On November 16, 2013, the parties visited ART Reproductive Center (“ART”) to undergo the IVF procedure. 

Before undergoing the procedure, the parties signed an agreement entitled “Directive for Partners Regarding the Storage and Disposition of Cryopreserved Material Which May Include Embryos” (Form Directive).  Among other things, the Form Directive provided that “[o]ne person cannot use the Cryopreserved Material to create a child (whether or not he intends to rear the child) without explicit written consent of the other person (either by notary or witnessed by ART Physician staff member or ART staff).” 

After doing so, the parties began the IVF process.  Vergara’s eggs were retrieved, and Loeb provided sperm.  Two pre-embryos were created and survived to viability (the “embryos”).[1]

On August 29, 2014 Loeb initiated a court action in Santa Monica to obtain full custody of the embryos and bring them to term (the “Santa Monica Action”).  Vergara contends that Loeb’s filing of the Santa Monica Action constituted a breach of the Form Directive.  It is alleged that Loeb cited his strong “pro-life” views as a reason for violating the terms of the Form Directive.  Vergara alleges that during the course of discovery in the Santa Monica Action, Loeb disclosed that he had previously consented to abortions involving two prior girlfriends, calling into doubt the credibility of his “pro-life” claims.  Loeb refused to reveal the identities of his previous girlfriends, and Vergara obtained a court order requiring Loeb to disclose this information.  Loeb persisted in his refusals.  Based on Loeb’s failure to comply with the court’s discovery orders, Vergara filed a motion for terminating sanctions, which was set to be heard on December 14, 2016.  Vergara also filed a motion for summary judgment set for hearing on December 15, 2016.  Rather than opposing these motions, Loeb dismissed the Santa Monica Action without prejudice on December 6, 2016. 

Prior to dismissing the Santa Monica Action, Loeb established a trust for the embryos in Louisiana, a state that recognizes embryos as judicial persons.  Loeb named the embryos Emma Loeb and Isabella Loeb, naming the embryos as Loeb’s daughters and beneficiaries. On December 7, 2016 the day after dismissing the Santa Monica Action, a complaint was filed in Louisiana by the trustee of the trust for the embryos (the “Louisiana Action I”).  Loeb instructed the trustee of the trust to file a lawsuit on behalf of the embryos against Vergara. Louisiana Action I alleged that Vergara was preventing the embryos from receiving their inheritance under the trust by refusing to bring the embryos to term.  Before the court made a determination on the enforceability of the Form Directive, Louisiana I was dismissed with prejudice on October 4, 2017 for lack of personal jurisdiction over Vergara.

On January 9, 2019 another lawsuit was filed in a federal district court in Louisiana, naming Loeb and both the Embryos as petitioners (“Louisiana Action II”). Louisiana Action II did not mention the directive, but alleged that the embryos were living children. Loeb sought sole and full custody of them. On October 11, 2019 the court dismissed all of Loeb’s claims in the Louisiana Action II with prejudice, based on multiple grounds. Loeb appealed this judgment and there is an appeal pending in Louisiana.

On February 14, 2017 Vergara initiated this action seeking declaratory and injunctive relief against Loeb.  Vergara seeks a declaration that Loeb’s repeated court actions constitute breaches of the Form Directive and requests an injunction preventing Loeb from taking any further actions inconsistent with the Form Directive.   

Vergara’s complaint brings causes of action for:  

(1) Declaratory Judgment  

(2) Permanent Injunctive Relief 

(3) Breach of Contract  

(4) Promissory Fraud 

(5) Promissory Estoppel

(6) Malicious Prosecution. (dism. after appeal)

On April 14, 2017 Loeb filed a demurrer and motion to strike portions of the complaint.  Loeb also filed an anti-SLAPP motion.   On September 27, 2017 the court denied Loeb’s anti-SLAPP motion, and sustained with leave to amend Loeb’s demurrer as to the promissory estoppel claim.  Plaintiff elected not to re-plead that claim.  On November 9, 2017 Loeb filed a notice of appeal from the anti-SLAPP denial, challenging the five causes of action remaining.  On January 28, 2019 the Court of Appeal reversed the court’s denial of the anti-SLAPP motion as it related to the malicious prosecution claim, but upheld the court’s denial of Loeb’s motion as to the remaining claims.  On April 24, 2019 the California Supreme Court denied Loeb’s writ of certiorari regarding the remaining claims.  On April 29, 2019 the Court of Appeal issued a remittitur.   

On March 20, 2020 Loeb filed a motion for summary judgment, or, alternatively, summary adjudication. The motion was heard on Nov. 10, 2020. The court’s 22-page ruling denying Loeb’s motion was issued the same day.

Vergara’s Motion for Summary Adjudication

On March 20, 2020 Vergara filed a motion for summary adjudication on the following issues:

· First Cause of Action—Declaratory Relief

o Issue 1: Vergara is entitled to declaratory judgment that the form directive is valid and enforceable.

o Issue 2: Vergara is entitled to declaratory judgment that the directive is not void or voidable based on Loeb’s duress defense.

o Issue 3: Vergara is entitled to declaratory judgment that the form directive prohibits Loeb from taking any action to seek unilateral control of the two pre-embryos to implant them in a surrogate.

o Issue 4: Vergara is entitled to declaratory judgment that Loeb has not established any enforceable oral agreement with Vergara authorizing him to implant the pre-embryos in a surrogate to be born.

· Third Cause of Action—Breach of Contract

o Issue 5: Vergara is entitled to judgment on the third cause of action given that Loeb breached the form directive by unilaterally creating the “Emma and Isabella Louisiana Trust No. 1 (the “Louisiana Trust”)

· Second Cause of Action—Permanent Injunction

o Issue 6: Vergara is entitled to a permanent injunction enjoining Loeb from breaching the directive “by making any use of the Louisiana Trust or engaging in any other means to seek unilateral control of the Pre-embryos without express written consent from Vergara.”

On April 20, 2020 Loeb filed an opposition. On September 14, 2020 Vergara filed a reply.

Missing pages from Loeb’s Exhibit D. On Nov. 10, 2020 the court’s tentative ruling (at footnote 5) raised the issue of pages missing from Loeb’s Exhibit D, specifically, Loeb’s 8/7/2015 deposition transcript at 251:22-25 and 252-254:1-19. The tentative ruling noted:

However, because the court does not have the evidence of the alleged pattern of abuse that Loeb cites, the court cannot issue a ruling at this time. The court orders Loeb to file a copy of the opposition declaration of Jalesia McQueen, which contains a complete version of Exhibit D, attaching the deposition testimony that Loeb contends supports his contention that a pattern of abuse occurred that caused the duress in signing the form directive. The court will take the motion under submission and, to the extent necessary, re-notice a hearing on the motion for a later date if that testimony is insufficient to create a triable issue of fact.

As a result, the remainder of Vergara’s MSA issues were not addressed, as noted in that tentative ruling:

The remainder of the issues that Vergara raises hinges on the enforceability of the form directive against Loeb. If there is a triable issue of fact regarding an essential element of the form directive that makes it unenforceable (i.e., consent), then triable issues of fact necessarily exist for Vergara’s first through third causes of action (i.e., no declaratory relief, no injunctive relief, and no breach of contract judgment can be entered on summary adjudication if a triable issue of fact exists regarding the enforceability of the very contract that Vergara is trying to enforce). The court, therefore, will not rule on the remaining issues until the court receives the full version of Loeb’s Exhibit D.

At the hearing on Nov. 10, 2020, Loeb’s counsel agreed to provide the missing pages from Exhibit D (which was part of Jalesia McQueen’s declaration). The court issued several minute orders between Nov. 17, 2020 and Dec. 7, 2020 noting Loeb had not yet filed the full Exhibit D document, and continued the hearing to Jan. 8, 2021. On its Dec. 7, 2020 minute order, the court noted it had received a lodged courtesy copy of a “Confidential” filing from Loeb (the McQueen declaration), but the document was not properly filed. Loeb was again ordered to file that document. However, on Dec. 22, 2020 Loeb only filed a “Notice of Lodging-Documents Under Seal,” not the confidential document itself. There is a procedure for the electronic filing of a confidential record, but Loeb has not followed it. Nevertheless, because the court has been provided with a courtesy copy of the confidential document with the notice of lodging, the court will file the confidential document sua sponte to assure an accurate record. The confidential McQueen declaration provided with the Notice of Lodging will be ordered filed as of Dec. 22, 2020. The court discusses the substance of Exhibit D below.

ANALYSIS

I. Standard for Motions for Summary Judgment/Summary Adjudication

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Id., § 437c, subd. (c).)

“A party may move for summary adjudication of issues, either by itself or as an alternative to summary judgment. If it appears that the proof supports the granting of the motion for summary adjudication as to some but not all the issues involved in the action, or that one or more of the issues raised by a claim is admitted, or that one or more of the issues raised by a defense is conceded, the court shall, by order, specify that those issues are without substantial controversy. Moreover, upon a motion for summary adjudication, the court shall, by written order or oral order recorded verbatim, specify those issues raised by the motion for summary adjudication as to which there exists a material, triable controversy, and shall specifically refer to the evidence which establishes a triable issue of fact regarding each of those issues ....” (Cal. Code. Civ. Proc. § 437c(f)).

A defendant moving for summary judgment/summary adjudication must show “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also, Code Civ. Proc., § 437c, subd. (o).)

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But… the defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [italics in original].) “In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action--for example, that the plaintiff cannot prove element X.” (Id., at 853.) The court in Aguilar distilled summary judgment to “a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case . . . the ‘court should grant’ the motion ‘and “avoid a . . . trial’ rendered ‘useless’ by nonsuit or directed verdict or similar device. (Id. at 855.)

As noted in Aguilar, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at 850.) Thus, courts usually follow a three-step analysis: “First, we identify the issues framed by the pleadings . . . . [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. . . . [¶] When a . . . motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Ojavan Investors, Inc. v. Cal. Coastal Comm. (1997) 54 Cal.App.4th 373, 385 [citation and footnote omitted].)

The California Supreme Court has recently confirmed that the purpose of the 1992 and 1993 amendments to the summary judgment statute was “ ‘to liberalize the granting of [summary judgment] motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) It is no longer called a “disfavored” remedy. “Summary judgment is now seen as a ‘particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.)

Opposing parties must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084.) “A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” (Hunter v. Pacific Mechanical Corp (1995) 37 Cal.App.4th 1282, 1286, disapproved on other grounds by Aguilar, supra, at 865; accord Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 [“‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’”].)

Courts “construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754; internal citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th1378,1392.)

The parties’ motions

As noted in the court’s Nov. 10, 2020 ruling on Loeb’s own motion, the parties made very similar and overlapping arguments. In the following pages (7-19), for convenience only, the court has “cut and paste” its analysis of the overlapping issues in Loeb’s motion in which the court has already ruled. To the extent that the same issues are raised in Vergara’s motion, the court’s earlier analysis shall also apply. Additional discrete issues in Vergara’s motion are also addressed.

II. Loeb’s Motion for Summary Judgment/Adjudication

A. Evidentiary Issues/Requests for Judicial Notice- OMITTED.

B. Is the Form Directive Void as Against Public Policy?

Loeb argues that the form directive is void as against public policy because it does not comply with California Health & Safety Code § 125315 by not containing a provision regarding divorce or separation.

Section 125315 provides, in pertinent part:

(a) A physician and surgeon or other health care provider delivering fertility treatment shall provide his or her patient with timely, relevant, and appropriate information to allow the individual to make an informed and voluntary choice regarding the disposition of any human embryos remaining following the fertility treatment. The failure to provide to a patient this information constitutes unprofessional conduct within the meaning of Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code.

(b) Any individual to whom information is provided pursuant to subdivision (a) shall be presented with the option of storing any unused embryos, donating them to another individual, discarding the embryos, or donating the remaining embryos for research. When providing fertility treatment, a physician and surgeon or other health care provider shall provide a form to the male and female partner, or the individual without a partner, as applicable, that sets forth advanced written directives regarding the disposition of embryos. This form shall indicate the time limit on storage of the embryos at the clinic or storage facility and shall provide, at a minimum, the following choices for disposition of the embryos based on the following circumstances:

(1) In the event of the death of either the male or female partner, the embryos shall be disposed of by one of the following actions:

(A) Made available to the living partner.

(B) Donation for research purposes.

(C) Thawed with no further action taken.

(D) Donation to another couple or individual.

(E) Other disposition that is clearly stated.

(2) In the event of the death of both partners or the death of a patient without a partner, the embryos shall be disposed of by one of the following actions:

(A) Donation for research purposes.

(B) Thawed with no further action taken.

(C) Donation to another couple or individual.

(D) Other disposition that is clearly stated.

(3) In the event of separation or divorce of the partners, the embryos shall be disposed of by one of the following actions:

(A) Made available to the female partner.

(B) Made available to the male partner.

(C) Donation for research purposes.

(D) Thawed with no further action taken.

(E) Donation to another couple or individual.

(F) Other disposition that is clearly stated.

(4) In the event of the partners’ decision or a patient’s decision who is without a partner, to abandon the embryos by request or a failure to pay storage fees, the embryos shall be disposed of by one of the following actions:

(A) Donation for research purposes.

(B) Thawed with no further action taken.

(C) Donation to another couple or individual.

(D) Other disposition that is clearly stated . . .

The parties agree that the form directive does not contain all of the above, but states the following regarding “Disposition of Cryopreserved Materials:”

“We declare…reached a mutual decision and are in agreement…We declare that in the event of death of either one or both of us, our mutual intention and desire regarding the disposition of Cryopreserved Material is described below.

“For each possible event, we have the choice of having the Cryopreserved Material:

· Donated to research; will go to the Center for purposes of clinical research with the understanding that the materials will never be used for procreative purposes. Specimens are used for on-site research and training by and for the laboratory staff of the Center and disposed of in accordance with FDA and OSHA guidelines.

· Thawed with no further action; which will result in its permanent and irretrievable destruction. All cryopreserved materials will be thawed by a member of the lab staff of the Center.

· Used by the living partner. If the Cryopreserved Material is used by my partner after my death, it is my desire and stated intention that the child be recognized in law as my child. (Applies to question 1 below only).

1. Disposition in the event of my death, or my partner’s death.

In the event of the death of either the Patient or Partner, the embryo’s disposition shall be as follows: (Note: write-in one choice listed above and both parties initial)

“Thawed with no further action” [handwritten; initialed]

2. Disposition in the event of death of both partners.

In the event of the death of both partners, the embryo’s disposition shall be as follows: (Note: write-in one choice listed above and both parties initial)

“Thawed with no further action” [handwritten; initialed]

Mov. Loeb Decl., Ex. 1 at PL 0000015 (emphasis in original)

a. Does the statute’s (b)(3) paragraph re “separation or divorce” apply?

Loeb argues that because the form directive does not include all of the information that § 125315 requires, it is void per se as a matter of public policy. Loeb argues that by enacting §125315, it was the intention of the legislature to adequately inform consumers of their options and, especially given that the provisions of the statute are compulsory (“shall”), the failure to include a provision as to what happens to the embryos upon “separation or divorce,” makes the form directive void per se.

Vergara argues that the provision for “separation or divorce” does not apply because Vergara and Loeb were never married. Under family law principles, a couple must be married (or registered domestic partners) to become legally separated. Fam. C. §§ 2310 & 299. Further, in family law, “date of separation” is defined based on the occurrence expressed intent to end a marriage. Fam. C. § 70. Accordingly, Vergara argues that, as an unmarried couple, they could not be separated and divorced such that the disposition of the pre-embryos would be the same whether or not the form directive contained an express provision for separation or divorce. [ART does not address this issue in its “limited opposition”].

Loeb replies that the form directive refers to Vergara and Loeb as “partners,” and that this term must have some meaning such that the term “separation” must also have some meaning. Further, Loeb argues that because the parties have a “weaker bargaining position” than ART, the terms of the statute should be read in favor of requiring more disclosure and informed consent, not less.

The court agrees with both parties in part.

First, the court agrees with Loeb regarding the applicability of the “separation” paragraph. “It is a settled principle of statutory interpretation that if a statute contains a provision regarding one subject, that provision's omission in the same or another statute regarding a related subject is evidence of a different legislative intent. [Citations.]” (People v. Arriaga Day v. City of Fontana Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC Wells v. One2One Learning Found. Here, the plain language of the statute states “[i]n the event of separation or divorce of the partners.” The statute plainly uses the words “separation” and “partner,” not “legal separation” or “domestic partnership.” The general purpose of the statute is to inform the IVF parties (“partners”) of their options for disposition of embryos when providing fertility treatments/procedures. That purpose would be frustrated if one were to narrowly interpret “partners” as domestic partners and “separation,” as legal separation, as Vergara suggests. Further, the language in the form directive tracks the language of the statute—identifying Loeb as the “partner.” Taken together—the statute referencing the separation of “partners,” and Loeb’s being referred to as the “partner” in the form directive, the court finds that the “separation” paragraph (3) of HSC § 125315, subd. (b) applies in this case.

However, the court strongly disagrees with Loeb that the failure of the directive to include that subsection is relevant to the validity and/or enforceability of the form directive. As Vergara argues, the statute expressly states the exclusive remedy for violating HSC §125315. The statute expressly states that “failure to provide to a patient this information constitutes unprofessional conduct…” HSC §125315(a). The statute does not state that the failure to include this information makes the form directive void or voidable—had the Legislature intended this result, it would have expressly so stated. When a statute creates a right and provides an explicit remedy, that statutory remedy is the exclusive remedy available for statutory violations. (De Anza Santa Cruz Mobile Estates Homeowners Ass'n v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912 (“Where a statute creates new rights and obligations not previously existing in the common law, the express statutory remedy is deemed to be the exclusive remedy available for statutory violations.”); accord, Estate of Starkweather (1998) 64 Cal.App.4th 580, 593; Palo Alto-Menlo Park Yellow Cab Co. v. Santa Clara Cty. Transit Dist. (1976) 65 Cal.App.3d 121, 131. Further, while the form directive does not specifically use the express language of HSC §125315 regarding the disposition of the embryos upon separation, as the court explains in the next section, the form directive does express the parties’ intent regarding how the embryos would be disposed if the parties’ did not agree.[2] In other words, whether the parties were still together or no longer in a relationship, the parties expressed their intent that a mutual decision must be made regarding the disposition of the embryos.

That the form directive does not exactly track HSC §125315, in and of itself, does not make the form directive void, particularly when it expresses the parties’ intent regarding how the disposition of the embryos should be handled.

b. Is the Form Directive Void as Against Public Policy?

Defendant argues that the form directive is void as against public policy because: (1) it does not contemplate how the embryos would be disposed, thus leaving the embryos in an indefinite state of limbo; and (2) that Loeb is in a weaker bargaining position than the ART, such that the risk of any ambiguity should be interpreted in favor of the weaker party. Finally, Defendant argues that even if the contract is not void as a matter of law, it is inherently wrong (malum in se).

The court disagrees.

First, the form directive does, in fact, clearly contemplate how the decisions relating to the embryo would be handled under various situations:

· “Unless otherwise directed by both of us in writing in person at ART or by notarized letter, the Center shall continue to store the Cryopreserved Material for an indefinite period of time.”

· The Cryopreserved Material shall be stored exclusively “[s]o long as Patient and Partner continue participation in the IVF and Cryo Programs …” (Mov. Loeb Decl., Ex. 1 at PL0000015) (emphasis added).

· “We understand that participation in this clinical procedure is voluntary, and that we are free to withdraw our consent and to discontinue our participation at any time.” (Id., PL0000017-18).

· Disposition in the Case of Abandonment . . . “In the event of non-payment after two years, the authority for disposition of the cryopreserved materials will revert to the Center. (Not to be used for procreative purposes) [Note: write-in “I UNDERSTAND AND AGREE and both parties initial].” (Id., PL0000016-17 (emphasis in original). This was followed by handwritten “I understand and agree.” with handwriting initials SV and NL. (Id. (emphasis in original))

· “We understand and are aware that we may change this Directive. However, any and all changes must be mutually agreed to between both named partners. One person cannot use the Cryopreserved Material 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 ART Physician staff member or ART staff). All changes must be in writing and signed by both parties. Unilateral changes cannot be honored by the Center.” (Id. at 17) (emphasis added).

· “In addition to non-payment of storage charges, failure to make a mutual decision about continued storage, use and disposition of Cryopreserved Materials and to notify the Center of the decision by providing them with a certified copy of this executed document will result in the abandonment of the Cryopreserved Material to the Center as described above. All authority and responsibility shall pass to the Center and the Center shall have the right, permission, and authority to dispose of or use the Cryopreserved Material.” (Id. (emphasis added)).

As seen by the language of the form directive, the clear and express intention of the parties was reiterated multiple times—that while the parties intended to undergo treatments now, their current intention was subject to change under certain delineated conditions. Per the express terms of the directive, even if their intentions changed, unless both agreed, the parties would have no choice regarding the disposition of the embryos—i.e., the embryos would be thawed and destroyed (in the event of death of any partner) or the embryos would be abandoned to ART (in the event that the parties fail to pay storage fees or do not reach a decision on the disposition of the embryos). Accordingly, the parties intended that, in the event that Loeb and Vergara were no longer romantically involved, both parties must agree to the disposition—otherwise the embryos would be abandoned back to ART.

Second, the court does not find any procedural unconscionability in the bargaining power between ART and the parties. The form directive expressed the parties’ intentions to ART and does not contain any terms that disproportionately favor ART over the parties. Loeb does not point to any ambiguities in the language of the form directive that “should be interpreted” in Loeb’s favor (e.g., there was not another term in the form directive that allowed any party to make a unilateral decision). Indeed, there are at least six different sections of the form directive that reiterate the parties’ intention at the time of contract—i.e., that the parties’ desires regarding the disposition of the embryos could change over time, that any decision required mutual consent, and that, without mutual consent, the embryos could be abandoned. Even assuming that Loeb is correct—i.e., that a form directive that does not include every paragraph and subparagraph of HSC §125315 is void/voidable—what is the basis for choosing Loeb’s preference of the disposition of the embryos over Vergara’s? Admittedly, under Loeb’s theory, the ART has the stronger bargaining power, putting Loeb and Vergara at the same equal footing of the “weaker” bargaining position as the non-drafters. Loeb presumes, without any authority or analysis, that a void form directive automatically means that Loeb’s unilateral decision, after the fact, controls. As the court describes in the next paragraph, even in the absence of any form directive or agreement between the parties regarding the disposition of the embryos, California law, by default, makes a unilateral decision on the disposition of an embryo unlawful.

Ultimately, contrary to Loeb’s argument the form directive is void as against public policy malum in se, the express language of California law holds the opposite. In California, it is a crime to use any genetic material including, ova or embryos, without the consent of the other party who created them. (Cal. Penal Code § 367g). Further, “[i]t shall be unlawful for anyone to knowingly implant sperm, ova, or embryos, through the use of assisted reproduction technology, into a recipient who is not the sperm, ova, or embryo provider, without the signed written consent of the sperm, ova, or embryo provider and recipient.” Cal. Penal Code § 367g(b). Accordingly, even if the parties’ intent in the form directive were unclear (it is not), California public policy requires the consent of both parties. Allowing one party to make the unilateral decision to implant an embryo into a surrogate, without the consent of the other, is not only against public policy, it is unlawful.

The court finds that, based on the express language of the form directive, the exclusive remedy set forth in HSC §125315, and the express legislative intent making it unlawful to make a unilateral decision regarding the implantation of an embryo as set forth in Penal Code section 367g, Loeb fails to show that the form directive, as a matter of law, is void as a matter of public policy.[3] The motion is denied on these grounds.

C. Is a Form Directive Considered a Valid Agreement?

Loeb’s next argument is that a form directive, per se, is merely an informative health document and not a valid agreement between the parties because it lacks consideration or a mutual exchange between the parties. In other words, Loeb argues that a form directive—i.e., any form directive regarding the disposition of embryos—is not an agreement per se, as a matter of law. In so arguing, Loeb cites to a line of cases that hold that the primary purpose of a consent form is to “explain to the donors the benefits and risk of freezing, and to record the donors’ desires for disposition of the frozen” embryos, but is not by itself a binding agreement between the two parties. (Citing A.Z. v. B.Z. (2000) 43 Mass. 150, 158; In re Marriage of Witten (2003 Iowa) 672 N.W. 768 (informed consent does not control once one of the parties changed his or her mind regarding the disposition of the embryos)).

In response, Plaintiff argues that, while California courts have not directly addressed agreements relating to a dispute over the disposition of frozen embryos, they have addressed disputes related to donated genetic material in the context of probate proceeds and parentage disputes. Further, Plaintiff argues that majority of other jurisdictions that have addressed this issue have enforced similar form directives as binding agreements. Similarly, ART argues that the form directive is an enforceable contract given California law on similar private family issues and given persuasive authority in other states regarding directives regarding the disposition of embryos.

Based on the parties’ arguments, the court focuses the following analysis on the discrete issue of whether or not a form directive, in general (not the specific form directive between Loeb and Vergara) is or is not an agreement, per se, or merely an informative health document. [4]

The court first analyzes California cases on agreements relating to reproductive rights, which tend to uphold agreements between the parties regarding the disposition of their genetic material and/or relating to agreements regarding reproductive rights (particularly when a party later changes his/her mind).

For example, as part of the IVF process, a husband provided sperm to the clinic, which was frozen and stored. (In re Estate of Kievernagel (2008) 166 Cal. App. 4th 1024, 1026). The sperm storage agreement provided that the sperm was the husband’s sole property and was to be discarded if the husband died or became incapacitated. (Id.) After the husband unexpectedly died, the wife petitioned the court to obtain the frozen sperm, while the husband’s parents objected. (Id.) The court held that the husband’s intent, as stated in the sperm storage agreement, governed the disputed. (Id. at 1032-1033).

In Johnson v. Calvery (1993) 5 Cal. 4th 84, a married couple created an embryo which was implanted into a surrogate. The surrogacy agreement stated that the married couple would be parents and the surrogate relinquished parental claims. (Id. at 87). During the pregnancy, the surrogate changed her mind. The court upheld the intentions of the parties pursuant to the surrogacy agreement. (Id. at 93).

Similarly, while California has not specifically addressed agreements relating to the disposition of embryos, a majority of other jurisdictions which have directly addressed this issue have decided to uphold the parties’ intent as stated in their directive/storage agreement.

As a general framework, courts across the country have applied three analytical frameworks in attempting to resolve disputes over the disposition of embryos: (1) the contractual approach; (2) the balancing approach; and (3) the contemporaneous mutual consent approach. Bilbao v. Goodwin (Conn. 2019) 217 A.3d 977, 984.

· Contractual approach: “Under the contractual approach, an agreement between progenitors governing disposition of the pre-embryos is presumed valid and enforceable in a dispute between them. [Citation] These agreements often appear as consent forms or storage agreements between progenitors and a fertility clinic. [Citation]” (Id. at 984).

· Balancing approach: “Under the balancing approach, a court weighs each progenitor's interest in the pre-embryos. Factors to consider include the intended use of the pre-embryos, the ability of each respective spouse to reproduce through other means, reasons for pursuing in vitro fertilization, emotional consequences, and bad faith.” (Id. at 985).

· Contemporaneous mutual consent approach: “Under the contemporaneous mutual consent approach, both progenitors must agree to a disposition at the time of the disposition. . . . If the parties do not agree, the pre-embryos remain in storage indefinitely.” (Id.)

The majority of state courts which have addressed this issue have first applied the contractual approach, enforcing the parties’ intent to the extent there is an agreement/consent directive, and, if not, utilizing the balancing approach in the absence of an agreement. See, e.g. (Connecticut) Bilbao v. Goodwin, 217 A.3d at 984-987 (applying the contractual approach, finding that the storage agreement was supported by adequate consideration, and holding that the storage agreement was an enforceable contract); (Arizona) Terrell v. Torres (2020) 248 Ariz. 47, 456 P.3d 13, 14 (“We agree that agreements between couples regarding the disposition of their embryos ‘should generally be presumed valid and binding, and enforced in any dispute between them.’”); (Colorado) In re Marriage of Rooks (Colo. 2018) 429 P.3d 579, 592, cert. denied sub nom. Rooks v. Rooks (2019) 139 S.Ct. 1447 (court first considers any existing agreement between the parties; in the absence of such an agreement, a court should seek to balance the parties’ respective interests); (Illinois) Szafranski v. Dunston (Ill. App. Ct. 2013) 993 N.E.2d 502, 514 (“the best approach for resolving disputes over the disposition of pre-embryos created with one party's sperm and another party's ova is to honor the parties' own mutually expressed intent as set forth in their prior agreements” as it honors the parties’ agreement, rather than have the courts decide reproductive choices related to family planning); (New York) Kass v. Kass (1998) 91 N.Y.2d 554, 565 (“agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them.”); (Oregon) In re Marriage of Dahl (Or. Ct. App. 2008) 222 Or. App. 572, 583, review denied, 346 Or. 65, 204 P.3d 95 (2009) (courts should give “effect to the progenitors' intent by enforcing the progenitors' advance directive regarding the embryos”); (Tennessee) Davis v. Davis (Tenn. 1992) 842 S.W.2d 588, 597, cert. denied sub nom. (agreement regarding disposition of any untransferred preembryos in the event of contingencies (such as the death of one or more of the parties, divorce, financial reversals, or abandonment of the program) should be presumed valid and should be enforced as between the progenitors).; (Texas) Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App. 2006), review denied, Texas Supreme Court, Docket No. 06-554 (August 24, 1997), cert. denied, 552 U.S. 1258 (2008) (embryo agreement between former husband and wife which provided that frozen embryos were to be discarded in the event of divorce was valid and enforceable).

The court finds these authorities highly persuasive and adopts the majority contractual approach. In particular, the court finds the following policy reasons and concerns to be compelling reasons to enforce the parties’ intent in a form directive:

· “Although we acknowledge the concern that individuals may change their minds regarding parenthood during the process of in vitro (Szafranski, supra, 993 N.E.2d at 515).

· “Although we acknowledge that this is not an ideal way to resolve a dispute implicating reproductive rights, we note that “what is even worse * * * is to give a possibly antagonized ex-spouse the power to either block parentage or to name the price that potential parentage will cost.” (Id.)

· “Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision.” (Kass, supra, 91 N.Y.2d at 565).

· “Divorce; death, disappearance or incapacity of one or both partners; aging; the birth of other children are but a sampling of obvious changes in individual circumstances that might take place over time. These factors make it particularly important that courts seek to honor the parties' expressions of choice, made before disputes erupt, with the parties' over-all direction always uppermost in the analysis. Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process. Advance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree.” (Id. at 565-66).

· “Moreover, giving effect to a valid agreement evincing the parties' intent regarding disposition of embryos is consistent with our statutory and case law that give similar effect to prenuptial agreements and agreements made during a marriage.” (In re Marriage of Dahl & Angle (2008) 222 Or. App. 572, 583).

A form directive, as a legally enforceable contract, therefore, honors the parties’ intent before emotions and disputes erupt, eliminates uncertainty, and allows the parties, rather than the courts, to decide private reproductive decisions related to family planning.

Further, and contrary to Loeb’s arguments, the court also adopts the reasoning of these courts in holding that a form directive, being an exchange of promises, does not fail for lack of consideration as a matter of law.

Consideration is “[a]ny benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” Cal. Civ. Code § 1605“[T]he exchange of promises is sufficient consideration .... [Citation]” (Bilbao, supra, 217 A.3d at 988–89) In a form directive, the parties “each offer[] one another the opportunity to create pre-embryos by contributing gametic material under the terms spelled out in the agreement . . .” (Id. at 989). As the Bilboa court held:

[T]he parties made mutual promises to contribute gametic material. Specifically, in exchange for the plaintiff's promise to contribute gametic material under the terms of the agreement, the defendant promised to contribute gametic material under the terms of the agreement, and vice versa. Moreover, in exchange for the certainty provided by the parties' election of a disposition in the event of divorce, the center promised to store the pre-embryos. Thus, all parties to the agreement received consideration. Additionally, to the extent that the trial court found that this exchange of promises was inadequate consideration, as a matter of law, we disagree. Although no court has directly addressed the issue in the context of pre-embryo disposition agreements, courts and commentators have opined that this exchange of promises is sufficient. See, e.g., Roman Roman, supra, 193 S.W.3d at 50 n.14 (“consideration in embryo agreements is the gamete donation process that both husband and wife experience”); D. Forman, “Embryo Disposition and Divorce: Why Clinic Consent Forms Are Not the Answer,” 24 J. Am. Acad. Matrim. Law. 57, 103 n.180 (2011) (“contracts also typically require consideration, which in this type of case may be provided by the gamete donation process undergone by both husband and wife”). Generally, though, it is well settled that “the exchange of promises is sufficient consideration ....” Christophersen Blount, supra, 216 Conn. at 511 n.3, 582 A.2d 460.

(Id. at 989-90). The court agrees with this sound reasoning and holds that a form directive, in which each partner agrees to contribute genetic material under the terms of an agreement and a fertility clinic’s agreement to store the material based on those terms contains sufficient consideration, as a matter of law. The terms of a form directive confer rights to the other that the other would not have a right to receive but for the agreement—significantly the use of the other’s genetic material in pre-determined terms to which the parties agreed. The conferment of such rights constitutes consideration.

Accordingly, the court holds that, as a matter of law, a form directive is not a mere informative health document, but constitutes an agreement between the parties that may be enforceable. No triable issue of fact exists regarding this issue. The motion is, therefore, denied on these grounds.

D. Has Vergara Suffered Damages? OMITTED.

E. Are Issues Ripe for Declaratory Relief?

Loeb argues that Plaintiff’s request for declaratory relief is “prospective and remote” and, therefore, not ripe for declaratory judgment. According to Loeb, the form directive states that “[o]ne person cannot use the Cryopreserved Material to create a child (whether or not he or she intends to rear the child” without explicit written consent of the other.” That directive does not prevent Loeb from litigating to determine the disposition of the Embryos. Because Loeb has not actually caused the implantation of the Embryos in a surrogate, there is no actual controversy at this time.

In response, Vergara argues that a dispute regarding the existence and validity of a contract, in and of itself, makes these issues ripe for adjudication. Further, because Loeb has taken actions to frustrate the purpose and intent of the form directive, an actual controversy exists between them.

A claim for declaratory relief is "legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court." (Maguire v. Hibernia Savings & Loan Soc. (1944) 23 Cal.2d 719, 728). An actual controversy as to the rights and obligations of parties to a contract can exist even before either party has engaged in a breach of contract. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 365). Where parties to a contract dispute the nature of their contractual rights and obligations, an "actual controversy" exists for purposes of obtaining declaratory relief. (Cal. Civ. Proc. Code § 1060; Market Lofts Community Assn. v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 931-932). “It is elementary that questions relating to the formation of a contract, its validity, its construction and effect, excuses for nonperformance, and termination are proper subjects for declaratory relief.” (Caira v. Offner (2005) 126 Cal.App.4th 12, 24.

Loeb has challenged and continues to challenge the validity and enforceability of the terms of the form directive. Vergara, on the other hand, contends that the form directive is valid and the agreement between the parties regarding the disposition of the embryos should be enforced. While Loeb has not literally implanted the embryos into a surrogate and created a child, Loeb has unilaterally used the embryos to create judicial persons in creating a trust and filing two lawsuits on behalf of the embryos in an effort to avoid the form directive’s requirement of written consent. Those actions would frustrate the purpose of the form directive, to the extent that the form directive, as between the parties, is enforceable. This constitutes an “actual controversy” for which declaratory relief would be available. The motion is denied on these grounds.

F. The Court’s Ruling on Loeb’s Motion

Given that the remainder of Loeb’s arguments rest on these issues and given that the court has ruled against Loeb on each of these issues, Loeb’s motion is denied in its entirety.

III. Vergara’s Motion for Summary Adjudication

A. Evidentiary Issues/Requests for Judicial Notice

Requests for Judicial Notice:

· Vergara’s Moving RJN (amended): Granted.

· Loeb’s Opposition RJN: Granted.

· Vergara’s Amended Reply RJN: Granted..

Evidentiary Objections:

· Loeb’s objection nos. 1-3 to Silberberg’s declaration: Overruled.

· Vergara’s Objections

o Loeb’s Declaration

§ 1, 4: Overruled.

§ 2, 3: Sustained in part. (Sustain in part as to “The Form Directive does not contemplate a specific choice for disposition of the embryos as in accordance with the Health and Safety Code Section 125315(b)(3) and” only; overruled as to the rest).

o McQueen Declaration

§ 1, 2, 3, 4: Overruled.

o Weiler Declaration

§ 1: Overruled.

o Objections to Loeb’s Memorandum

§ 1-10: Overruled.

o Objections to Loeb’s Separate Statement

o Objections 1-318 are overruled as procedurally improper.

B. First Cause of Action for Declaratory Relief

Vergara’s first issue is that the form directive, specifically as between Vergara and Loeb, is a valid and enforceable contract. The essential elements of a contract are:

1) The parties must have the capacity to enter into a contract

2) The parties must consent to the contract

3) The contract must have a lawful object and

4) There must be sufficient consideration or cause for the parties to enter into the contract.

(Cal. Civil Code § 1550).

Capacity: The parties do not dispute that each had the requisite capacity when they signed the form directive.

Consent

Vergara argues that “the facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successor in interest; but this rule does not apply to the recital of a consideration.” Cal. Evid. Code § 622. Loeb testified that he signed the form directive. (Opp. Loeb Decl., ¶ 3). The form directive contains certifications by the parties confirming that they read the document carefully and “know we should ask questions about anything that is unclear before we decide whether to be participants in this procedure, and that our physician will be happy to answer any of our questions.” (Form Directive, PL0000018 at ¶ B & PL0000020 at ¶ K). The form directive also states that each party had the opportunity to be represented by an attorney. (Id., PL0000017). Furthermore, above Loeb's signature, the Directive states that he signed the directive "willingly" and does so as a "free and voluntary act for the purpose herein expressed." (Id., PL0000020). The court finds that, by this evidence, standing alone, Vergara has met her prima facie burden of establishing that there was consent.

The burden shifts to Loeb to create a triable issue of fact. Loeb argues that there was no free and willing consent as Loeb signed the directive under duress. He argues that the veracity and credibility of that testimony is for a trier of fact to determine. Further, the issue of Loeb’s state of mind is also an issue of fact.

Under the modern rules, “[d]uress, which includes whatever destroys one's free agency and constrains [her] to do what is against [her] will, may be exercised by threats, importunity or any species of mental coercion [citation] ....” (In re Marriage of Baltins (1989) 212 Cal. App.3d 66, 84). “It is shown where a party “intentionally used threats or pressure to induce action or nonaction to the other party's detriment [citation].” (Id.) “To determine whether a contract (or a default judgment) was the product of duress, the courts look not so much to the nature of the threats, but to their effect on the state of the threatened person's mind.” (Id.) Accordingly, duress may be found where the effect that “Wife was ‘very emotional, upset and distraught to the point that ... she was acting under her husband's will.’” (Id.)

While Vergara argues that duress can only occur when one party uses an unlawful action to secure the other party’s consent, the law on duress is not as strict as Vergara contends. Where there is a pattern of abuse between a romantic couple, a triable issue of fact may exist regarding whether or not one party’s berating behavior against another party may constitute mental coercion. The veracity and credibility of Loeb’s claims potentially create a triable issue of fact, but only if Loeb’s testimony sufficiently establishes a long pattern and history of abuse that amounts to mental coercion.

At the prior hearing on Vergara’s motion, however, the court noted that in Loeb’s opposition (2:17-18), Loeb specifically cites to Exhibit D, Loeb’s 8/7/2015 deposition transcript at 251:22-25 and 252-254:1-19 as evidence of that abuse/duress. Unfortunately, the unredacted courtesy copy of Exhibit D that the court received did not contain those pages. Because the court did not have the evidence of the alleged pattern of abuse that Loeb cites, the court could not analyze the substance of Loeb’s testimony or issue a ruling at that time. The court, therefore, ordered Loeb to file a copy of the opposition declaration of Jalesia McQueen, which contained a complete version of Exhibit D, attaching the deposition testimony that Loeb contends supports his contention that a pattern of abuse occurred that caused the duress in signing the form directive. The court then took the motion under submission and, to the extent necessary, stated that the court may re-notice a hearing on the motion for a later date if Loeb’s testimony was insufficient to create a triable issue of fact regarding abuse.

The entirety of Loeb’s evidence, including the recently lodged Exhibit “D,” is as follows:

· Loeb testified that the directive should not be enforced “[b]ecause first of all, it’s a Directive; and two, I was under duress when I signed this.” (McQueen decl., Ex. C, 90:22-25.)

· Loeb testified that Vergara berated him the day of signing, that she was “loud,” “intense,” “bossy,” “pushy” and “irritable.” Loeb was very embarrassed and humiliated and didn’t like “being put down and yelled at and screamed in front of people. It’s embarrassing and humiliating.” Loeb did not want to get “yelled and screamed at, you know, by her. And so I just—I signed it.” Id., Ex. D, 119:3-11, 121:22-122:3.

· Loeb testified that it was a constant theme and that Vergara would call him names like “loser” and use obscenities against him. (Ex. D at 120:1-23).

· Loeb also argues that he testified about a pattern of emotional and physical abuse in the relationship for which he has evidence and for which there are witnesses, all of which is the backdrop for why the events that took place on the day of signing amounted to duress.

· A staff member at ART testified that he witnessed the following during the signing of the form directive: “Not yelling. I mean, they were both kind of testy. He just wanted a thorough explanation, and she was okay with all the forms and had signed them all with little explanation. He just wanted more… More explanation.” (Opposition Decl. of Jalesia McQueen, Ex. E, 42:4-10).

· When asked a follow up question, that witness testified: “[Vergara] had already pre-read them and was comfortable signing them as they were without asking extra questions versus he kept wanting to ask questions, even though they had already signed these prior. And so that why she was just “Let’s go. We’ve done this before. It’s the same thing.” (Id., 89:19-24).

The court finds that this evidence, taken as true, is insufficient to show a substantive, extensive, history of abuse that amounts to duress during the signing of the Form Directive. At most, it shows that the couple was testy, in the middle of a fight, and/or were annoyed with one another when signing the documents with the ART. Loeb’s testimony about abuse is conclusionary, at best, detailing discrete incidences where Loeb claims that Vergara called him certain names like “Loser,” the extent of any alleged abuse, the effect of any alleged abuse, etc. Loeb does not offer any other evidence regarding his mental health as a result of any alleged abuse. Further, Loeb offers no testimony that Vergara called him any names at the time of signing and, other than embarrassment, Loeb offers no specific detail to show that, at the time of signing, Loeb was threatened, in fear, or forced to sign the directive. In other words, Loeb’s testimony does not explain what Loeb believed would have happened if he had not signed the form directive based on the couple’s history—i.e., he had to do it or else… [what?] Accordingly, the court finds there is no triable issue of material fact to show a threatened state of mind, actual mental coercion, or duress at the time of signing.

Lawful Object and Consideration

Loeb repeats the same arguments as he did in his motion for summary judgment in arguing that there was no lawful object or consideration. The court already addressed these issues above and incorporates the court’s analysis on these issues here to find that no triable issue of fact exists that the purpose of the contract is lawful and that consideration was exchanged.

Given that all of the elements of a contract exist, the court finds that the form directive is a valid and binding contract between the parties.

Defenses to Enforceability of Form Directive

Given that the court finds that no triable issue of fact exists that the form directive is a valid and binding contract between the parties, the court next analyzes whether or not Loeb raised any triable issue of fact regarding any affirmative defenses that make the contract unenforceable. The defenses that Loeb raises are (1) duress, (2) an oral agreement, (3) Plaintiff’s own breach, and (4) unconscionability.

1. Duress

As the court explained above, Loeb’s duress defense fails. Loeb failed to offer sufficient evidence to create a triable issue of fact that, at the time of the signing, Loeb was threatened or coerced into signing the form directive.

2. Oral Agreement

Loeb argues that an oral agreement existed between Loeb and Vergara prior to signing the form directive that they would bring any embryo to term.

The terms of an oral contract "must be sufficiently definite or must call for such definite terms in the acceptance, that the performance promised is reasonably certain." (Weddington Productions. Inc. v. Flick (1998) 60 Cal. App. 4th 793, 811). For an oral contract to be binding, the parties must agree to the details of performance—i.e., the terms of the contract must be complete. (Mason v. Woodland Sav. & Loan Ass'n (1967) 254 Cal. App. 2d 41, 44). “[W]here any of the essential terms are left for future determination and it is understood that the agreement is not deemed complete until they are settled ... no binding contract results until this is done.” (Id.) For example, a court found that the following allegations were too indefinite to allege a complete oral contract:

“Plaintiff has in mind the construction of three residences, one on each parcel and the defendant is to loan the plaintiff the money required to enable the plaintiff to pay off some encumbrances already existing against the property and to build the residences. Extensive negotiations went on between the parties from January to May 1965 and they arrived at some agreements. The amount the defendant was to loan was $150,000, to be in the form of three loans of $50,000 each. The rate of interest was determined and the times of payment of the principal and interest. Each $50,000 was to be used first “to complete off-site improvements on Parcels 1, 2 and 3, and thereafter to construct a residential dwelling on each parcel. The threat of inflation always being present, they also agreed to arrange for additional financing in the sum of not less than $9,000 so that there would be sufficient funds to complete construction of the dwellings. About May Day 1965, the parties entered into three escrows to carry out their agreement; but before July was over the defendant refused to loan plaintiff any money or to bring the escrows to a close.”

(Id. at 43-44). The court held that these allegations were uncertain: “We present the purely hypothetical question: ‘What kind of residential dwellings were to be built? One bedroom, one-bath affairs? Of ultra-modern design, that, in defendant's opinion, would have no security value?’ There was nothing in the oral agreement that gave an answer to this question, and it is vital to the scheme and an essential detail of the contract. Oral or written, the agreement between the parties is not complete so long as this ‘detail,’ at the heart of their enterprise, is left unsettled.” (Id. at 44). Accordingly, the court affirmed the judgment of dismissal after a trial court sustained demurrers to plaintiff’s breach of oral contract without leave to amend. (Id. at 45).

Here, the only evidence that Loeb offers is his own testimony that an oral agreement existed. The only terms about which he testifies is that the embryo would be implanted to give Loeb the opportunity to be a parent. Loeb testifies that he does not recall when the oral agreement was reached—at one time he testified that the oral agreement was reached before they created the pre-embryos; at another time he testified that the agreement was reached the day they signed the form directive. (SUMF ## 200-203). There is no testimony regarding any details or specific terms of the agreement. What were the specific terms for performance? When would the embryo have to be implanted? Within six months? One year? Two years? What were the terms if they broke up? What were the consequences for breach by any party? What if one party changed his or her mind? What if one party died? What if both parties both wanted sole custody of the embryo after it was implanted? What was the consideration? Similar to Weddington, too many details are left unsettled. Accordingly, any purported “oral agreement” between the parties is woefully vague, uncertain, and lacking in definite terms to be binding or enforceable. Accordingly, the court finds that Loeb has not offered sufficient evidence to create a triable issue of fact that an oral agreement exists.

3. Plaintiff’s Own Breach

Loeb argues that the form directive is not enforceable because Vergara materially breached the Form Directive by failing to pay the storage fees. The form directive, however, does not absolutely require Vergara to pay storage fees for the terms to be effective and enforceable. Indeed, the Form Directive specifically contemplates Vergara not paying storage fees—and expressly details what would happen if Vergara did not pay storage fees:

· Disposition in the Case of Abandonment . . . “In the event of non-payment after two years, the authority for disposition of the cryopreserved materials will revert to the Center. (Not to be used for procreative purposes) [Note: write-in “I UNDERSTAND AND AGREE and both parties initial].” (Mov. Loeb Decl., Ex. 1, PL0000016-17 (emphasis in original). This was followed by handwritten “I understand and agree.” with handwriting initials SV and NL. (Id. (emphasis in original)).

The court finds that Loeb fails to offer sufficient facts or legal authority to establish that Vergara materially breached the form directive such that the form directive is no longer enforceable.

4. Unconscionability

The court already addressed Loeb’s unconscionability arguments in Loeb’s motion for summary adjudication. Again, the court incorporates the court’s reasoning regarding the unconscionability issue and finds that Loeb has not offered sufficient evidence to create a triable issue of fact that the form directive is unenforceable due to unconscionability.

In sum, the Form Directive meets all of the elements of a contract, and no triable issue of fact exists regarding the viability of Loeb’s “defenses.” The court finds that the undisputed facts establish that Vergara is entitled to declaratory relief in her favor.

Declaratory Relief Sought

In Vergara’s motion, Vergara seeks the following relief:

· Declaratory relief that prohibits Loeb from taking any action to seek unilateral control of the pre-embryos in order to implant them in a surrogate.

· Declaratory relief that there was no duress.

· Declaratory relief that there was no oral agreement.

In Vergara’s complaint, however, Vergara requests the following relief on the first cause of action for declaratory relief: “Plaintiff respectfully requests that this Court enter an order declaring the validity and enforceability of the Contract entered by the Parties on November 16, 2013 that any unilateral action undertaken by Defendant Loeb that seeks to cause the implantation of the Pre-Embryos in a surrogate, by other means of gestation, constitutes a violation of the Contract…” (Complaint ¶ 39). The court finds that the relief that Vergara seeks in the motion is broader than the relief that Vergara seeks in the complaint.

“The pleadings play a key role in a summary judgment motion and ‘ “ ‘set the boundaries of the issues to be resolved at summary judgment.’ ” ’ [Citation.] ‘[T]he scope of the issues to be properly addressed in [a] summary judgment motion’ is generally ‘limited to the claims framed by the pleadings. [Citation.]”

(Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421; see also Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 (“[e]vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings’].)”

The court, therefore, finds that the court is limited to granting Vergara the relief that she seeks in the complaint.

The court grants summary adjudication on the first cause of action for declaratory relief, in part, as follows:

· The court grants declaratory relief and makes a judicial determination that the Form Directive entered into by the parties on November 16, 2013 is a valid and enforceable contract.

· The court grants declaratory relief and makes a judicial determination that, by the express terms of the form directive, “any unilateral action undertaken by Defendant Loeb that seeks to cause the implantation of the Pre-Embryos in a surrogate, by other means of gestation, constitutes a violation” of the Form Directive.

C. Third Cause of Action for Breach of Contract

Given that the court found that the undisputed material facts establish that the Form Directive is a binding and enforceable contract between the parties, the only remaining issue for this cause of action is whether or not Loeb breached. Loeb argues that it would be “an impossibility” that Loeb breached the form directive because the Form Directive states: “One person cannot use the Cryopreserved Material 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 ART Physician staff member or ART staff.)” (Opposition at 9). Loeb argues that Loeb could not have breached those terms because the embryos were never implanted in a surrogate and no child has yet been created. Loeb argues that “naming the embryos, setting up a trust for them, setting up a bank account for them, using their names in social media, and any other alleged “used” only becomes a breach of the Directive if Defendant Loeb actually creates a child from that use.” (Id.) Further, Loeb argues that there are no terms that state that Loeb waives his right to pursue litigation on this issue.

The court agrees in part and disagrees in part with Loeb’s arguments regarding the scope of the terms of the Form Directive. The court agrees that the Form Directive does not prohibit Loeb from litigating the extent, scope, validity, and enforceability of the Form Directive. Loeb’s actions in the Santa Monica Action, therefore, in which Loeb challenged the validity of the Form Directive do not constitute a breach of the terms of the Form Directive.

The court finds, however, that Loeb’s actions in the Louisiana action frustrate the purpose of the Form Directive by trying to create judicial persons from the embryos. It is undisputed that Loeb unilaterally set up a trust for the embryos, unilaterally sued on behalf of the embryos, unilaterally attempted to create judicial persons from the embryos to create standing to sue, unilaterally attempted to gain custody and parental rights over the embryos, and unilaterally sought relief in the Louisiana Action for the purpose of unilaterally bringing the embryos to term without Vergara’s consent. These actions constitute a breach of the Form Directive and establish acts that Loeb, in violation of the express terms of the Form Directive, took actions to try to implant and bring the embryos to term unilaterally, without the consent of the other.

The court, therefore, grants summary adjudication, in part, on Vergara’s third cause of action and finds that the undisputed facts establish that, by Loeb’s actions in the Louisiana actions, Loeb materially frustrated the purpose and intent of the Form Directive and, therefore, breached the Form Directive.

As a result of Loeb’s breach, Vergara requests in her complaint that “this Court enter an order declaring that Defendant Loeb must perform his contractual obligations and duties under the Parties’ Contract and be prohibited from taking any actions inconsistent with its terms and for such other relief as the Court finds just and equitable.” (Complaint, ¶ 55). The court finds that it is just and equitable to grant declaratory relief that Loeb breached the Form Directive by his actions in the Louisiana actions. As for Vergara’s other requests for relief for this cause of action (i.e., essentially specific performance, perform the contract) and injunctive relief (prohibit certain actions), the court discusses these issues in the next section.

D. Second Cause of Action—Injunction (and relief sought in Third Cause of Action for Breach of Contract)

Injunctive relief is properly granted in the following circumstances:

(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

(2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.

(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.

(4) When pecuniary compensation would not afford adequate relief.

(5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.

(6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.

(Cal. Civ. Proc. Code § 526(a); emphasis added). Further, courts have held that an injunction may be issued to prevent the breach of a contract, even though the contract could not be specifically enforced, where there is no adequate remedy at law and the breach of the contract would also give rise to an independent ground for injunction, such as where it would constitute a trespass that would result in irreparable injury. (See Smith v. Mendonsa (1952) 108 Cal.App.2d 540, 543 (it is "well settled" that injunctive relief may be granted in cases involving promises as to the use of property, depending upon the inadequacy of damages); Morris v. Iden (1913) 23 Cal.App. 388, 396 ("[T]he right to an injunction in a certain class of cases to prevent the violation of contracts which cannot be specifically enforced is distinctly recognized and put upon the ground of a want of an adequate remedy at law.")). An injunction, therefore, may be granted to enforce a negative covenant in a contract (i.e., a promise not to do some particular thing); equity grants relief by an injunction restraining the defendant from acting in violation of the contract. (See Smith v. Mendonsa (1952) 108 Cal.App.2d 540, 543 (adjoining landowner's promise not to permit trees to grow more than 15 feet high; noting that it is "well settled" that injunctive relief may be granted in cases involving promises as to the use of property, depending upon the inadequacy of damages); Morris v. Iden (1913) 23 Cal.App. 388, 396 ("[T]he right to an injunction in a certain class of cases to prevent the violation of contracts which cannot be specifically enforced is distinctly recognized and put upon the ground of a want of an adequate remedy at law.").

In the motion, Vergara seeks a permanent injunction enjoining Loeb from breaching the directive “by making any use of the Louisiana Trust or engaging in any other means to seek unilateral control of the Pre-embryos without express written consent from Vergara.” In her complaint, for the second cause of action, Vergara requests that: “this Court issue an injunctive order restraining Defendant Loeb from any actions inconsistent with, and in breach of, the Contract, including, but not limited to, an order requiring Defendant Loeb to take any action necessary to prevent the implantation of the Pre-Embryos in a surrogate without the express written consent of Plaintiff.” (Complaint, ¶ 48). Loeb argues that Vergara’s request for a permanent injunction is not specific or definite and the terms by which Vergara defines Loeb’s actions are broad.

The court finds that, given the merits of Vergara’s breach of contract claim, sufficient grounds exist for injunctive relief under CCP 526(a) (1), (2), (3), (5) & (6). However, the court agrees with Loeb that the scope of the injunctive relief that Vergara seeks in the motion is not definite and/or goes beyond the scope of the Form Directive. Specifically:

· Injunctive relief that prohibits Loeb from “making any use of the Louisiana Trust” goes beyond the relief that Vergara requests in the second cause of action for injunctive relief (See Complaint, ¶ 48). Further, to the extent that it requires the court to enter an order that prohibits Loeb from continuing to pursue his appeals in the Louisiana actions, the Form Directive does not waive Loeb’s rights to litigation.

· Injunctive relief that prohibits Loeb from “engaging in any other means to seek unilateral control of the Pre-embryos without express written consent from Vergara” again is speculative and overbroad. Similarly, injunctive relief restraining Loeb from “any actions inconsistent with” the Form Directive is overly general. What constitutes “any other means” and/or “any actions inconsistent with”? Such broad language could be interpreted as enjoining Loeb from pursuing his litigation rights and/or appealing this order or any judgment in this action, which is improper.

· Injunctive relief that requires Loeb “to take any action necessary to prevent the implantation of the Pre-Embryos in a surrogate without the express written consent of Plaintiff” goes beyond the scope of the Form Directive (and is not injunctive relief, but essentially specific performance). The Form Directive does not affirmatively require any party to take action to prevent the implantation of the pre-embryos/embryos. Further, what does “any action necessary to prevent” entail?

As the cases on injunctive relief establish, injunctive relief needs to specifically identify a definite term in the contract (e.g., Smith v. Mendonsa, supra, adjoining landowner not permitted to grow trees more than 15 feet high based on promise between parties). Accordingly, injunctive relief must be narrowly tailored to the terms of the contract.

The court grants summary adjudication on the second cause of action, in part, as follows:

· Loeb is permanently enjoined from using “the Cryopreserved Material 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 ART Physician staff member or ART staff.)”


[1] The court uses the term “embryos” to track the language off the form directive for consistency. The parties dispute whether “embryo” or “pre-embryo” should be used. Because that is not at issue in this motion, the court’s use of the word “embryos” instead of “pre-embryos” has no legal significance.

[2] In the event of separation of the partners, HSC §125315(b)(3)(F) recognizes an option based on “Other disposition that is clearly stated.”

[3] Indeed, one could easily argue that the directive here advances public policy by presenting a contractual framework informing IVF participants of their options and conditions for the exercise of their options.

[4]Loeb makes brief arguments about the specific form directive not being enforceable as between the parties for lack of consent in his motion but does not elaborate. In Vergara’s motion for summary adjudication, the parties discuss various issues relating to the specific elements of the form directive and Loeb’s various defenses in much more depth. Accordingly, the court analyzes whether triable issues of fact exist relating to the existence and validity of the specific form directive as between the parties in addressing Vergara’s motion for summary adjudication below.

Case Number: BC650580    Hearing Date: November 10, 2020    Dept: 73

11/10/2020

Dept. 73

Rafael Ongkeko, Judge presiding

SOFIA VERGARA v. NICHOLAS LOEB, et al. (BC650580)

Counsel for Plaintiff: Fred Silberberg; Susan Allison, Lauren Babst (Jeffer Mangels Butler & Mitchell LLP)

Counsel for Defendant: Michael W. Caspino, Michael Weiler (Buchalter); Jalesia McQueen (McQueen Kuenzel, LLC)

Counsel for Defendant Art Reproductive Center, Inc.: Paul Philips; Samantha Mirabello

MATTERS:

1. LOEB’S MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES (filed 3/20/2020)

2. VERGARA’S MOTION FOR SUMMARY ADJUDICATION (filed 3/20/2020)

3. VERGARA’S MOTION TO FILE REPLY UNDER SEAL (filed 9/15/2020)

TENTATIVE RULING

1. Loeb’s motion for summary judgment is denied in its entirety.

2. Vergara’s motion for summary adjudication: Defer ruling. Some materials missing.  See footnote 5 below.

3. Vergara’s motion to file reply papers under seal is granted.

Discussion

Procedural History

Plaintiff Sofia Vergara (“Vergara”) and Defendant Nicholas Loeb (“Loeb”) were formerly in a romantic relationship and were, at one time, engaged to be married.  During their relationship, the parties discussed the possibility of having a child together using in-vitro fertilization (“IVF”) and a third-party surrogate.  On November 16, 2013, the parties visited ART Reproductive Center (“ART”) to undergo the IVF procedure. 

Before undergoing the procedure, the parties signed an agreement entitled “Directive for Partners Regarding the Storage and Disposition of Cryopreserved Material Which May Include Embryos” (Form Directive).  Among other things, the Form Directive provided that “[o]ne person cannot use the Cryopreserved Material to create a child (whether or not he intends to rear the child) without explicit written consent of the other person (either by notary or witnessed by ART Physician staff member or ART staff).” 

After doing so, the parties began the IVF process.  Vergara’s eggs were retrieved, and Loeb provided sperm.  Two pre-embryos were created and survived to viability (the “embryos”).[1]

On August 29, 2014 Loeb initiated a court action in Santa Monica to obtain full custody of the embryos and bring them to term (the “Santa Monica Action”).  Vergara contends that Loeb’s filing of the Santa Monica Action constituted a breach of the Form Directive.  It is alleged that Loeb cited his strong “pro-life” views as a reason for violating the terms of the Form Directive.  Vergara alleges that during the course of discovery in the Santa Monica Action, Loeb disclosed that he had previously consented to abortions involving two prior girlfriends, calling into doubt the credibility of his “pro-life” claims.  Loeb refused to reveal the identities of his previous girlfriends, and Vergara obtained a court order requiring Loeb to disclose this information.  Loeb persisted in his refusals.  Based on Loeb’s failure to comply with the court’s discovery orders, Vergara filed a motion for terminating sanctions, which was set to be heard on December 14, 2016.  Vergara also filed a motion for summary judgment set for hearing on December 15, 2016.  Rather than opposing these motions, Loeb dismissed the Santa Monica Action without prejudice on December 6, 2016. 

Prior to dismissing the Santa Monica Action, Loeb established a trust for the embryos in Louisiana, a state that recognizes embryos as judicial persons.  Loeb named the embryos Emma Loeb and Isabella Loeb, naming the embryos as Loeb’s daughters and beneficiaries. On December 7, 2016 the day after dismissing the Santa Monica Action, a complaint was filed in Louisiana by the trustee of the trust for the embryos (the “Louisiana Action I”).  Loeb instructed the trustee of the trust to file a lawsuit on behalf of the embryos against Vergara. Louisiana Action I alleged that Vergara was preventing the embryos from receiving their inheritance under the trust by refusing to bring the embryos to term.  Before the court made a determination on the enforceability of the Form Directive, Louisiana I was dismissed with prejudice on October 4, 2017 for lack of personal jurisdiction over Vergara.

On January 9, 2019 another lawsuit was filed in a federal district court in Louisiana, naming Loeb and both the Embryos as petitioners (“Louisiana Action II”). Louisiana Action II did not mention the directive, but alleged that the embryos were living children. Loeb sought sole and full custody of them. On October 11, 2019 the court dismissed all of Loeb’s claims in the Louisiana Action II with prejudice, based on multiple grounds. Loeb appealed this judgment and there is an appeal pending in Louisiana.

On February 14, 2017 Vergara initiated this action seeking declaratory and injunctive relief against Loeb.  Vergara seeks a declaration that Loeb’s repeated court actions constitute breaches of the Form Directive and requests an injunction preventing Loeb from taking any further actions inconsistent with the Form Directive.   

Vergara’s complaint brings causes of action for:  

(1) Declaratory Judgment  

(2) Permanent Injunctive Relief 

(3) Breach of Contract  

(4) Promissory Fraud 

(5) Promissory Estoppel

(6) Malicious Prosecution. (dism. after appeal)

On April 14, 2017 Loeb filed a demurrer and motion to strike portions of the complaint.  Loeb also filed an anti-SLAPP motion.   On September 27, 2017 the court denied Loeb’s anti-SLAPP motion, and sustained with leave to amend Loeb’s demurrer as to the promissory estoppel claim.  Plaintiff elected not to re-plead that claim.  On November 9, 2017 Loeb filed a notice of appeal from the anti-SLAPP denial, challenging the five causes of action remaining.  On January 28, 2019 the Court of Appeal reversed the court’s denial of the anti-SLAPP motion as it related to the malicious prosecution claim, but upheld the court’s denial of Loeb’s motion as to the remaining claims.  On April 24, 2019 the California Supreme Court denied Loeb’s writ of certiorari regarding the remaining claims.  On April 29, 2019 the Court of Appeal issued a remittitur.   

Pending Motions

1. Loeb’s Motion for Summary Judgment or, alternatively, Summary Adjudication

On March 20, 2020 Loeb filed a motion for summary judgment, or, alternatively, summary adjudication, arguing the following grounds:

· The Form Directive is void as a matter of public policy for not complying with Health & Safety Code §125315 by not addressing the disposition of the embryos upon separation.

· The Form Directive is an informational directive and not a legally enforceable contract.

· Plaintiff has not suffered damages.

· Declaratory relief is not ripe for adjudication because no child was created.

On April 20, 2020 Vergara filed an opposition. Vergara also filed a motion to keep certain portions of her opposition under seal. (That motion was previously granted.) On April 20, 2020 ART filed a limited opposition and on April 22, 2020, a joinder to Vergara’s motion to seal. On September 14, 2002 Loeb filed a reply.

2. Vergara’s Motion for Summary Adjudication

On March 20, 2020 Vergara filed a motion for summary adjudication on the following issues:

· First Cause of Action—Declaratory Relief

o Issue 1: Vergara is entitled to declaratory judgment that the form directive is valid and enforceable.

o Issue 2: Vergara is entitled to declaratory judgment that the directive is not void or voidable based on Loeb’s duress defense.

o Issue 3: Vergara is entitled to declaratory judgment that the form directive prohibits Loeb from taking any action to seek unilateral control of the two pre-embryos to implant them in a surrogate.

o Issue 4: Vergara is entitled to declaratory judgment that Loeb has not established any enforceable oral agreement with Vergara authorizing him to implant the pre-embryos in a surrogate to be born.

· Third Cause of Action—Breach of Contract

o Issue 5: Vergara is entitled to judgment on the third cause of action given that Loeb breached the form directive by unilaterally creating the “Emma and Isabella Louisiana Trust No. 1 (the “Louisiana Trust”)

· Second Cause of Action—Permanent Injunction

o Issue 6: Vergara is entitled to a permanent injunction enjoining Loeb from breaching the directive “by making any use of the Louisiana Trust or engaging in any other means to seek unilateral control of the Pre-embryos without express written consent from Vergara.

On April 20, 2020 Loeb filed an opposition. On September 14, 2020 Vergara filed a reply and, on Sept. 15, 2020, a motion to file her reply documents under seal.

ANALYSIS

I. Vergara’s Motions to File Oppositions Under Seal

A court may order a record sealed if it finds: (1) there exists an overriding interest outweighing the public's right of access; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to protect the overriding interest. (See Cal. Rule of Court ("CRC") 2.550(d); see also Overstock.Com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal. App. 4th 471, 506-08.)

The court grants Vergara’s unopposed motion to file her reply papers under seal.

II. Standard for Motions for Summary Judgment/Summary Adjudication

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Id., § 437c, subd. (c).)

“A party may move for summary adjudication of issues, either by itself or as an alternative to summary judgment. If it appears that the proof supports the granting of the motion for summary adjudication as to some but not all the issues involved in the action, or that one or more of the issues raised by a claim is admitted, or that one or more of the issues raised by a defense is conceded, the court shall, by order, specify that those issues are without substantial controversy. Moreover, upon a motion for summary adjudication, the court shall, by written order or oral order recorded verbatim, specify those issues raised by the motion for summary adjudication as to which there exists a material, triable controversy, and shall specifically refer to the evidence which establishes a triable issue of fact regarding each of those issues ....” (Cal. Code. Civ. Proc. § 437c(f)).

A defendant moving for summary judgment/summary adjudication must show “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also, Code Civ. Proc., § 437c, subd. (o).)

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But… the defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [italics in original].) “In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action--for example, that the plaintiff cannot prove element X.” (Id., at 853.) The court in Aguilar distilled summary judgment to “a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case . . . the ‘court should grant’ the motion ‘and “avoid a . . . trial’ rendered ‘useless’ by nonsuit or directed verdict or similar device. (Id. at 855.)

As noted in Aguilar, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at 850.) Thus, courts usually follow a three-step analysis: “First, we identify the issues framed by the pleadings . . . . [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. . . . [¶] When a . . . motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Ojavan Investors, Inc. v. Cal. Coastal Comm. (1997) 54 Cal.App.4th 373, 385 [citation and footnote omitted].)

The California Supreme Court has recently confirmed that the purpose of the 1992 and 1993 amendments to the summary judgment statute was “ ‘to liberalize the granting of [summary judgment] motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) It is no longer called a “disfavored” remedy. “Summary judgment is now seen as a ‘particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.)

Opposing parties must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084.) “A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” (Hunter v. Pacific Mechanical Corp (1995) 37 Cal.App.4th 1282, 1286, disapproved on other grounds by Aguilar, supra, at 865; accord Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 [“‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’”].)

Courts “construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754; internal citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236Cal.App.4th1378,1392.)

Here, in their respective motions and oppositions, the parties make very similar and overlapping arguments. The court will analyze the issues raised in Loeb’s motion first. To the extent that the same issues are raised in Vergara’s motion, the court’s analysis shall also apply. The court will then address the additional, discrete issues in Vergara’s motion.

III. Loeb’s Motion for Summary Judgment/Adjudication

A. Evidentiary Issues/Requests for Judicial Notice

Vergara’s Request for Judicial Notice in Opposition Papers: Grant.

Vergara’s Objection nos. 1-3 to Loeb’s declaration: Sustained.

B. Is the Form Directive Void as Against Public Policy?

Loeb argues that the form directive is void as against public policy because it does not comply with California Health & Safety Code § 125315 by not containing a provision regarding divorce or separation.

Section 125315 provides, in pertinent part:

(a) A physician and surgeon or other health care provider delivering fertility treatment shall provide his or her patient with timely, relevant, and appropriate information to allow the individual to make an informed and voluntary choice regarding the disposition of any human embryos remaining following the fertility treatment. The failure to provide to a patient this information constitutes unprofessional conduct within the meaning of Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code.

(b) Any individual to whom information is provided pursuant to subdivision (a) shall be presented with the option of storing any unused embryos, donating them to another individual, discarding the embryos, or donating the remaining embryos for research. When providing fertility treatment, a physician and surgeon or other health care provider shall provide a form to the male and female partner, or the individual without a partner, as applicable, that sets forth advanced written directives regarding the disposition of embryos. This form shall indicate the time limit on storage of the embryos at the clinic or storage facility and shall provide, at a minimum, the following choices for disposition of the embryos based on the following circumstances:

(1) In the event of the death of either the male or female partner, the embryos shall be disposed of by one of the following actions:

(A) Made available to the living partner.

(B) Donation for research purposes.

(C) Thawed with no further action taken.

(D) Donation to another couple or individual.

(E) Other disposition that is clearly stated.

(2) In the event of the death of both partners or the death of a patient without a partner, the embryos shall be disposed of by one of the following actions:

(A) Donation for research purposes.

(B) Thawed with no further action taken.

(C) Donation to another couple or individual.

(D) Other disposition that is clearly stated.

(3) In the event of separation or divorce of the partners, the embryos shall be disposed of by one of the following actions:

(A) Made available to the female partner.

(B) Made available to the male partner.

(C) Donation for research purposes.

(D) Thawed with no further action taken.

(E) Donation to another couple or individual.

(F) Other disposition that is clearly stated.

(4) In the event of the partners’ decision or a patient’s decision who is without a partner, to abandon the embryos by request or a failure to pay storage fees, the embryos shall be disposed of by one of the following actions:

(A) Donation for research purposes.

(B) Thawed with no further action taken.

(C) Donation to another couple or individual.

(D) Other disposition that is clearly stated . . .

The parties agree that the form directive does not contain all of the above, but states the following regarding “Disposition of Cryopreserved Materials:”

“We declare…reached a mutual decision and are in agreement…We declare that in the event of death of either one or both of us, our mutual intention and desire regarding the disposition of Cryopreserved Material is described below.

“For each possible event, we have the choice of having the Cryopreserved Material:

· Donated to research; will go to the Center for purposes of clinical research with the understanding that the materials will never be used for procreative purposes. Specimens are used for on-site research and training by and for the laboratory staff of the Center and disposed of in accordance with FDA and OSHA guidelines.

· Thawed with no further action; which will result in its permanent and irretrievable destruction. All cryopreserved materials will be thawed by a member of the lab staff of the Center.

· Used by the living partner. If the Cryopreserved Material is used by my partner after my death, it is my desire and stated intention that the child be recognized in law as my child. (Applies to question 1 below only).

1. Disposition in the event of my death, or my partner’s death.

In the event of the death of either the Patient or Partner, the embryo’s disposition shall be as follows: (Note: write-in one choice listed above and both parties initial)

“Thawed with no further action” [handwritten; initialed]

2. Disposition in the event of death of both partners.

In the event of the death of both partners, the embryo’s disposition shall be as follows: (Note: write-in one choice listed above and both parties initial)

“Thawed with no further action” [handwritten; initialed]

Mov. Loeb Decl., Ex. 1 at PL 0000015 (emphasis in original)

a. Does the statute’s (b)(3) paragraph re “separation or divorce” apply?

Loeb argues that because the form directive does not include all of the information that § 125315 requires, it is void per se as a matter of public policy. Loeb argues that by enacting §125315, it was the intention of the legislature to adequately inform consumers of their options and, especially given that the provisions of the statute are compulsory (“shall”), the failure to include a provision as to what happens to the embryos upon “separation or divorce,” makes the form directive void per se.

Vergara argues that the provision for “separation or divorce” does not apply because Vergara and Loeb were never married. Under family law principles, a couple must be married (or registered domestic partners) to become legally separated. Fam. C. §§ 2310 & 299. Further, in family law, “date of separation” is defined based on the occurrence expressed intent to end a marriage. Fam. C. § 70. Accordingly, Vergara argues that, as an unmarried couple, they could not be separated and divorced such that the disposition of the pre-embryos would be the same whether or not the form directive contained an express provision for separation or divorce. [ART does not address this issue in its “limited opposition”].

Loeb replies that the form directive refers to Vergara and Loeb as “partners,” and that this term must have some meaning such that the term “separation” must also have some meaning. Further, Loeb argues that because the parties have a “weaker bargaining position” than ART, the terms of the statute should be read in favor of requiring more disclosure and informed consent, not less.

The court agrees with both parties in part.

First, the court agrees with Loeb regarding the applicability of the “separation” paragraph. “It is a settled principle of statutory interpretation that if a statute contains a provision regarding one subject, that provision's omission in the same or another statute regarding a related subject is evidence of a different legislative intent. [Citations.]” (People v. Arriaga Day v. City of Fontana Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC Wells v. One2One Learning Found. Here, the plain language of the statute states “[i]n the event of separation or divorce of the partners.” The statute plainly uses the words “separation” and “partner,” not “legal separation” or “domestic partnership.” The general purpose of the statute is to inform the IVF parties (“partners”) of their options for disposition of embryos when providing fertility treatments/procedures. That purpose would be frustrated if one were to narrowly interpret “partners” as domestic partners and “separation,” as legal separation, as Vergara suggests. Further, the language in the form directive tracks the language of the statute—identifying Loeb as the “partner.” Taken together—the statute referencing the separation of “partners,” and Loeb’s being referred to as the “partner” in the form directive, the court finds that the “separation” paragraph (3) of HSC § 125315, subd. (b) applies in this case.

However, the court strongly disagrees with Loeb that the failure of the directive to include that subsection is relevant to the validity and/or enforceability of the form directive. As Vergara argues, the statute expressly states the exclusive remedy for violating HSC §125315. The statute expressly states that “failure to provide to a patient this information constitutes unprofessional conduct…” HSC §125315(a). The statute does not state that the failure to include this information makes the form directive void or voidable—had the Legislature intended this result, it would have expressly so stated. When a statute creates a right and provides an explicit remedy, that statutory remedy is the exclusive remedy available for statutory violations. (De Anza Santa Cruz Mobile Estates Homeowners Ass'n v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912 (“Where a statute creates new rights and obligations not previously existing in the common law, the express statutory remedy is deemed to be the exclusive remedy available for statutory violations.”); accord, Estate of Starkweather (1998) 64 Cal.App.4th 580, 593; Palo Alto-Menlo Park Yellow Cab Co. v. Santa Clara Cty. Transit Dist. (1976) 65 Cal.App.3d 121, 131. Further, while the form directive does not specifically use the express language of HSC §125315 regarding the disposition of the embryos upon separation, as the court explains in the next section, the form directive does express the parties’ intent regarding how the embryos would be disposed if the parties’ did not agree.[2] In other words, whether the parties were still together or no longer in a relationship, the parties expressed their intent that a mutual decision must be made regarding the disposition of the embryos.

That the form directive does not exactly track HSC §125315, in and of itself, does not make the form directive void, particularly when it expresses the parties’ intent regarding how the disposition of the embryos should be handled.

b. Is the Form Directive Void as Against Public Policy?

Defendant argues that the form directive is void as against public policy because: (1) it does not contemplate how the embryos would be disposed, thus leaving the embryos in an indefinite state of limbo; and (2) that Loeb is in a weaker bargaining position than the ART, such that the risk of any ambiguity should be interpreted in favor of the weaker party. Finally, Defendant argues that even if the contract is not void as a matter of law, it is inherently wrong (malum in se).

The court disagrees.

First, the form directive does, in fact, clearly contemplate how the decisions relating to the embryo would be handled under various situations:

· “Unless otherwise directed by both of us in writing in person at ART or by notarized letter, the Center shall continue to store the Cryopreserved Material for an indefinite period of time.”

· The Cryopreserved Material shall be stored exclusively “[s]o long as Patient and Partner continue participation in the IVF and Cryo Programs …” (Mov. Loeb Decl., Ex. 1 at PL0000015) (emphasis added).

· “We understand that participation in this clinical procedure is voluntary, and that we are free to withdraw our consent and to discontinue our participation at any time.” (Id., PL0000017-18).

· Disposition in the Case of Abandonment . . . “In the event of non-payment after two years, the authority for disposition of the cryopreserved materials will revert to the Center. (Not to be used for procreative purposes) [Note: write-in “I UNDERSTAND AND AGREE and both parties initial].” (Id., PL0000016-17 (emphasis in original). This was followed by handwritten “I understand and agree.” with handwriting initials SV and NL. (Id. (emphasis in original))

· “We understand and are aware that we may change this Directive. However, any and all changes must be mutually agreed to between both named partners. One person cannot use the Cryopreserved Material 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 ART Physician staff member or ART staff). All changes must be in writing and signed by both parties. Unilateral changes cannot be honored by the Center.” (Id. at 17) (emphasis added).

· “In addition to non-payment of storage charges, failure to make a mutual decision about continued storage, use and disposition of Cryopreserved Materials and to notify the Center of the decision by providing them with a certified copy of this executed document will result in the abandonment of the Cryopreserved Material to the Center as described above. All authority and responsibility shall pass to the Center and the Center shall have the right, permission, and authority to dispose of or use the Cryopreserved Material.” (Id. (emphasis added)).

As seen by the language of the form directive, the clear and express intention of the parties was reiterated multiple times—that while the parties intended to undergo treatments now, their current intention was subject to change under certain delineated conditions. Per the express terms of the directive, even if their intentions changed, unless both agreed, the parties would have no choice regarding the disposition of the embryos—i.e., the embryos would be thawed and destroyed (in the event of death of any partner) or the embryos would be abandoned to ART (in the event that the parties fail to pay storage fees or do not reach a decision on the disposition of the embryos). Accordingly, the parties intended that, in the event that Loeb and Vergara were no longer romantically involved, both parties must agree to the disposition—otherwise the embryos would be abandoned back to ART.

Second, the court does not find any procedural unconscionability in the bargaining power between ART and the parties. The form directive expressed the parties’ intentions to ART and does not contain any terms that disproportionately favor ART over the parties. Loeb does not point to any ambiguities in the language of the form directive that “should be interpreted” in Loeb’s favor (e.g., there was not another term in the form directive that allowed any party to make a unilateral decision). Indeed, there are at least six different sections of the form directive that reiterate the parties’ intention at the time of contract—i.e., that the parties’ desires regarding the disposition of the embryos could change over time, that any decision required mutual consent, and that, without mutual consent, the embryos could be abandoned. Even assuming that Loeb is correct—i.e., that a form directive that does not include every paragraph and subparagraph of HSC §125315 is void/voidable—what is the basis for choosing Loeb’s preference of the disposition of the embryos over Vergara’s? Admittedly, under Loeb’s theory, the ART has the stronger bargaining power, putting Loeb and Vergara at the same equal footing of the “weaker” bargaining position as the non-drafters. Loeb presumes, without any authority or analysis, that a void form directive automatically means that Loeb’s unilateral decision, after the fact, controls. As the court describes in the next paragraph, even in the absence of any form directive or agreement between the parties regarding the disposition of the embryos, California law, by default, makes a unilateral decision on the disposition of an embryo unlawful.

Ultimately, contrary to Loeb’s argument the form directive is void as against public policy malum in se, the express language of California law holds the opposite. In California, it is a crime to use any genetic material including, ova or embryos, without the consent of the other party who created them. (Cal. Penal Code § 367g). Further, “[i]t shall be unlawful for anyone to knowingly implant sperm, ova, or embryos, through the use of assisted reproduction technology, into a recipient who is not the sperm, ova, or embryo provider, without the signed written consent of the sperm, ova, or embryo provider and recipient.” Cal. Penal Code § 367g(b). Accordingly, even if the parties’ intent in the form directive were unclear (it is not), California public policy requires the consent of both parties. Allowing one party to make the unilateral decision to implant an embryo into a surrogate, without the consent of the other, is not only against public policy, it is unlawful.

The court finds that, based on the express language of the form directive, the exclusive remedy set forth in HSC §125315, and the express legislative intent making it unlawful to make a unilateral decision regarding the implantation of an embryo as set forth in Penal Code section 367g, Loeb fails to show that the form directive, as a matter of law, is void as a matter of public policy.[3] The motion is denied on these grounds.

C. Is a Form Directive Considered a Valid Agreement?

Loeb’s next argument is that a form directive, per se, is merely an informative health document and not a valid agreement between the parties because it lacks consideration or a mutual exchange between the parties. In other words, Loeb argues that a form directive—i.e., any form directive regarding the disposition of embryos—is not an agreement per se, as a matter of law. In so arguing, Loeb cites to a line of cases that hold that the primary purpose of a consent form is to “explain to the donors the benefits and risk of freezing, and to record the donors’ desires for disposition of the frozen” embryos, but is not by itself a binding agreement between the two parties. (Citing A.Z. v. B.Z. (2000) 43 Mass. 150, 158; In re Marriage of Witten (2003 Iowa) 672 N.W. 768 (informed consent does not control once one of the parties changed his or her mind regarding the disposition of the embryos)).

In response, Plaintiff argues that, while California courts have not directly addressed agreements relating to a dispute over the disposition of frozen embryos, they have addressed disputes related to donated genetic material in the context of probate proceeds and parentage disputes. Further, Plaintiff argues that majority of other jurisdictions that have addressed this issue have enforced similar form directives as binding agreements. Similarly, ART argues that the form directive is an enforceable contract given California law on similar private family issues and given persuasive authority in other states regarding directives regarding the disposition of embryos.

Based on the parties’ arguments, the court focuses the following analysis on the discrete issue of whether or not a form directive, in general (not the specific form directive between Loeb and Vergara) is or is not an agreement, per se, or merely an informative health document. [4]

The court first analyzes California cases on agreements relating to reproductive rights, which tend to uphold agreements between the parties regarding the disposition of their genetic material and/or relating to agreements regarding reproductive rights (particularly when a party later changes his/her mind).

For example, as part of the IVF process, a husband provided sperm to the clinic, which was frozen and stored. (In re Estate of Kievernagel (2008) 166 Cal. App. 4th 1024, 1026). The sperm storage agreement provided that the sperm was the husband’s sole property and was to be discarded if the husband died or became incapacitated. (Id.) After the husband unexpectedly died, the wife petitioned the court to obtain the frozen sperm, while the husband’s parents objected. (Id.) The court held that the husband’s intent, as stated in the sperm storage agreement, governed the disputed. (Id. at 1032-1033).

In Johnson v. Calvery (1993) 5 Cal. 4th 84, a married couple created an embryo which was implanted into a surrogate. The surrogacy agreement stated that the married couple would be parents and the surrogate relinquished parental claims. (Id. at 87). During the pregnancy, the surrogate changed her mind. The court upheld the intentions of the parties pursuant to the surrogacy agreement. (Id. at 93).

Similarly, while California has not specifically addressed agreements relating to the disposition of embryos, a majority of other jurisdictions which have directly addressed this issue have decided to uphold the parties’ intent as stated in their directive/storage agreement.

As a general framework, courts across the country have applied three analytical frameworks in attempting to resolve disputes over the disposition of embryos: (1) the contractual approach; (2) the balancing approach; and (3) the contemporaneous mutual consent approach. Bilbao v. Goodwin (Conn. 2019) 217 A.3d 977, 984.

· Contractual approach: “Under the contractual approach, an agreement between progenitors governing disposition of the pre-embryos is presumed valid and enforceable in a dispute between them. [Citation] These agreements often appear as consent forms or storage agreements between progenitors and a fertility clinic. [Citation]” (Id. at 984).

· Balancing approach: “Under the balancing approach, a court weighs each progenitor's interest in the pre-embryos. Factors to consider include the intended use of the pre-embryos, the ability of each respective spouse to reproduce through other means, reasons for pursuing in vitro fertilization, emotional consequences, and bad faith.” (Id. at 985).

· Contemporaneous mutual consent approach: “Under the contemporaneous mutual consent approach, both progenitors must agree to a disposition at the time of the disposition. . . . If the parties do not agree, the pre-embryos remain in storage indefinitely.” (Id.)

The majority of state courts which have addressed this issue have first applied the contractual approach, enforcing the parties’ intent to the extent there is an agreement/consent directive, and, if not, utilizing the balancing approach in the absence of an agreement. See, e.g. (Connecticut) Bilbao v. Goodwin, 217 A.3d at 984-987 (applying the contractual approach, finding that the storage agreement was supported by adequate consideration, and holding that the storage agreement was an enforceable contract); (Arizona) Terrell v. Torres (2020) 248 Ariz. 47, 456 P.3d 13, 14 (“We agree that agreements between couples regarding the disposition of their embryos ‘should generally be presumed valid and binding, and enforced in any dispute between them.’”); (Colorado) In re Marriage of Rooks (Colo. 2018) 429 P.3d 579, 592, cert. denied sub nom. Rooks v. Rooks (2019) 139 S.Ct. 1447 (court first considers any existing agreement between the parties; in the absence of such an agreement, a court should seek to balance the parties’ respective interests); (Illinois) Szafranski v. Dunston (Ill. App. Ct. 2013) 993 N.E.2d 502, 514 (“the best approach for resolving disputes over the disposition of pre-embryos created with one party's sperm and another party's ova is to honor the parties' own mutually expressed intent as set forth in their prior agreements” as it honors the parties’ agreement, rather than have the courts decide reproductive choices related to family planning); (New York) Kass v. Kass (1998) 91 N.Y.2d 554, 565 (“agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them.”); (Oregon) In re Marriage of Dahl (Or. Ct. App. 2008) 222 Or. App. 572, 583, review denied, 346 Or. 65, 204 P.3d 95 (2009) (courts should give “effect to the progenitors' intent by enforcing the progenitors' advance directive regarding the embryos”); (Tennessee) Davis v. Davis (Tenn. 1992) 842 S.W.2d 588, 597, cert. denied sub nom. (agreement regarding disposition of any untransferred preembryos in the event of contingencies (such as the death of one or more of the parties, divorce, financial reversals, or abandonment of the program) should be presumed valid and should be enforced as between the progenitors).; (Texas) Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App. 2006), review denied, Texas Supreme Court, Docket No. 06-554 (August 24, 1997), cert. denied, 552 U.S. 1258 (2008) (embryo agreement between former husband and wife which provided that frozen embryos were to be discarded in the event of divorce was valid and enforceable).

The court finds these authorities highly persuasive and adopts the majority contractual approach. In particular, the court finds the following policy reasons and concerns to be compelling reasons to enforce the parties’ intent in a form directive:

· “Although we acknowledge the concern that individuals may change their minds regarding parenthood during the process of in vitro (Szafranski, supra, 993 N.E.2d at 515).

· “Although we acknowledge that this is not an ideal way to resolve a dispute implicating reproductive rights, we note that “what is even worse * * * is to give a possibly antagonized ex-spouse the power to either block parentage or to name the price that potential parentage will cost.” (Id.)

· “Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision.” (Kass, supra, 91 N.Y.2d at 565).

· “Divorce; death, disappearance or incapacity of one or both partners; aging; the birth of other children are but a sampling of obvious changes in individual circumstances that might take place over time. These factors make it particularly important that courts seek to honor the parties' expressions of choice, made before disputes erupt, with the parties' over-all direction always uppermost in the analysis. Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process. Advance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree.” (Id. at 565-66).

· “Moreover, giving effect to a valid agreement evincing the parties' intent regarding disposition of embryos is consistent with our statutory and case law that give similar effect to prenuptial agreements and agreements made during a marriage.” (In re Marriage of Dahl & Angle (2008) 222 Or. App. 572, 583).

A form directive, as a legally enforceable contract, therefore, honors the parties’ intent before emotions and disputes erupt, eliminates uncertainty, and allows the parties, rather than the courts, to decide private reproductive decisions related to family planning.

Further, and contrary to Loeb’s arguments, the court also adopts the reasoning of these courts in holding that a form directive, being an exchange of promises, does not fail for lack of consideration as a matter of law.

Consideration is “[a]ny benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” Cal. Civ. Code § 1605“[T]he exchange of promises is sufficient consideration .... [Citation]” (Bilbao, supra, 217 A.3d at 988–89) In a form directive, the parties “each offer[] one another the opportunity to create pre-embryos by contributing gametic material under the terms spelled out in the agreement . . .” (Id. at 989). As the Bilboa court held:

[T]he parties made mutual promises to contribute gametic material. Specifically, in exchange for the plaintiff's promise to contribute gametic material under the terms of the agreement, the defendant promised to contribute gametic material under the terms of the agreement, and vice versa. Moreover, in exchange for the certainty provided by the parties' election of a disposition in the event of divorce, the center promised to store the pre-embryos. Thus, all parties to the agreement received consideration. Additionally, to the extent that the trial court found that this exchange of promises was inadequate consideration, as a matter of law, we disagree. Although no court has directly addressed the issue in the context of pre-embryo disposition agreements, courts and commentators have opined that this exchange of promises is sufficient. See, e.g., Roman Roman, supra, 193 S.W.3d at 50 n.14 (“consideration in embryo agreements is the gamete donation process that both husband and wife experience”); D. Forman, “Embryo Disposition and Divorce: Why Clinic Consent Forms Are Not the Answer,” 24 J. Am. Acad. Matrim. Law. 57, 103 n.180 (2011) (“contracts also typically require consideration, which in this type of case may be provided by the gamete donation process undergone by both husband and wife”). Generally, though, it is well settled that “the exchange of promises is sufficient consideration ....” Christophersen Blount, supra, 216 Conn. at 511 n.3, 582 A.2d 460.

(Id. at 989-90). The court agrees with this sound reasoning and holds that a form directive, in which each partner agrees to contribute genetic material under the terms of an agreement and a fertility clinic’s agreement to store the material based on those terms contains sufficient consideration, as a matter of law. The terms of a form directive confer rights to the other that the other would not have a right to receive but for the agreement—significantly the use of the other’s genetic material in pre-determined terms to which the parties agreed. The conferment of such rights constitutes consideration.

Accordingly, the court holds that, as a matter of law, a form directive is not a mere informative health document, but constitutes an agreement between the parties that may be enforceable. No triable issue of fact exists regarding this issue. The motion is, therefore, denied on these grounds.

D. Has Vergara Suffered Damages?

Loeb argues that Vergara has not suffered damages because Plaintiff only seeks the costs of litigation as damages. Under the American Rule, each party is to bear his or her own attorney’s fees. The form directive does not contain an attorneys’ fees provision. Without damages, her claim for breach of contract fails. Vergara responds by arguing that Vergara does not seek monetary damages, but seeks declaratory and injunctive relief. Where a contract sought to be enforced is a negative covenant (i.e., a promise not to do some particular thing), equity grants relief by an injunction restraining the defendant from acting in violation of the contract. (Smith v. Mendonsa (1952) 108 Cal. App. 2d, 540, 543). The court agrees with Vergara. In Vergara’s third cause of action for breach of contract, Vergara alleges: “Therefore, Plaintiff respectfully requests that this Court enter an order declaring Defendant Loeb must perform his contractual obligations and duties under the Parties’ Contract and be prohibited from taking any actions inconsistent with its terms, and for such other relief as the Court finds just and equitable.” (Complaint, ¶ 55). Vergara is not seeking attorneys’ fees as damages, but merely alleges that the two years of litigation with Loeb for his breached has caused her to suffer a great cost such that Vergara is entitled to equitable relief. (Complaint, ¶ 54). The motion is denied on these grounds.

E. Are Issues Ripe for Declaratory Relief?

Loeb argues that Plaintiff’s request for declaratory relief is “prospective and remote” and, therefore, not ripe for declaratory judgment. According to Loeb, the form directive states that “[o]ne person cannot use the Cryopreserved Material to create a child (whether or not he or she intends to rear the child” without explicit written consent of the other.” That directive does not prevent Loeb from litigating to determine the disposition of the Embryos. Because Loeb has not actually caused the implantation of the Embryos in a surrogate, there is no actual controversy at this time.

In response, Vergara argues that a dispute regarding the existence and validity of a contract, in and of itself, makes these issues ripe for adjudication. Further, because Loeb has taken actions to frustrate the purpose and intent of the form directive, an actual controversy exists between them.

A claim for declaratory relief is "legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court." (Maguire v. Hibernia Savings & Loan Soc. (1944) 23 Cal.2d 719, 728). An actual controversy as to the rights and obligations of parties to a contract can exist even before either party has engaged in a breach of contract. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 365). Where parties to a contract dispute the nature of their contractual rights and obligations, an "actual controversy" exists for purposes of obtaining declaratory relief. (Cal. Civ. Proc. Code § 1060; Market Lofts Community Assn. v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 931-932). “It is elementary that questions relating to the formation of a contract, its validity, its construction and effect, excuses for nonperformance, and termination are proper subjects for declaratory relief.” (Caira v. Offner (2005) 126 Cal.App.4th 12, 24.

Loeb has challenged and continues to challenge the validity and enforceability of the terms of the form directive. Vergara, on the other hand, contends that the form directive is valid and the agreement between the parties regarding the disposition of the embryos should be enforced. While Loeb has not literally implanted the embryos into a surrogate and created a child, Loeb has unilaterally used the embryos to create judicial persons in creating a trust and filing two lawsuits on behalf of the embryos in an effort to avoid the form directive’s requirement of written consent. Those actions would frustrate the purpose of the form directive, to the extent that the form directive, as between the parties, is enforceable. This constitutes an “actual controversy” for which declaratory relief would be available. The motion is denied on these grounds.

F. The Court’s Ruling on Loeb’s Motion

Given that the remainder of Loeb’s arguments rest on these issues and given that the court has ruled against Loeb on each of these issues, Loeb’s motion is denied in its entirety.

IV. Vergara’s Motion for Summary Adjudication

A. Evidentiary Issues/Requests for Judicial Notice

Requests for Judicial Notice:

· Vergara’s Moving RJN (amended): Granted.

· Loeb’s Opposition RJN: Granted.

· Vergara’s Amended Reply RJN: Granted..

Evidentiary Objections:

· Loeb’s objection nos. 1-3 to Silberberg’s declaration: Overruled.

· Vergara’s Objections

o Loeb’s Declaration

§ 1, 4: Overruled.

§ 2, 3: Sustained in part. (Sustain in part as to “The Form Directive does not contemplate a specific choice for disposition of the embryos as in accordance with the Health and Safety Code Section 125315(b)(3) and” only; overruled as to the rest).

o McQueen Declaration

§ 1, 2, 3, 4: Overruled.

o Weiler Declaration

§ 1: Overruled.

o Objections to Loeb’s Memorandum

§ 1-10: Overruled.

o Objections to Loeb’s Separate Statement

o Objections 1-318 are overruled as procedurally improper.

B. First Cause of Action for Declaratory Relief

Vergara’s first issue is that the form directive, specifically as between Vergara and Loeb, is a valid and enforceable contract. The essential elements of a contract are:

1) The parties must have the capacity to enter into a contract

2) The parties must consent to the contract

3) The contract must have a lawful object and

4) There must be sufficient consideration or cause for the parties to enter into the contract.

(Cal. Civil Code § 1550).

Capacity: The parties do not dispute that each had the requisite capacity when they signed the form directive.

Consent

Vergara argues that “the facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successor in interest; but this rule does not apply to the recital of a consideration.” Cal. Evid. Code § 622. Loeb testified that he signed the form directive. (Opp. Loeb Decl., ¶ 3). The form directive contains certifications by the parties confirming that they read the document carefully and “know we should ask questions about anything that is unclear before we decide whether to be participants in this procedure, and that our physician will be happy to answer any of our questions.” (Form Directive, PL0000018 at ¶ B & PL0000020 at ¶ K). The form directive also states that each party had the opportunity to be represented by an attorney. (Id., PL0000017). Furthermore, above Loeb's signature, the Directive states that he signed the directive "willingly" and does so as a "free and voluntary act for the purpose herein expressed." (Id., PL0000020). The court finds that, by this evidence, standing alone, Vergara has met her prima facie burden of establishing that there was consent.

The burden shifts to Loeb to create a triable issue of fact. Loeb argues that there was no free and willing consent as Loeb signed the directive under duress. Loeb offers the following evidence:

· Loeb testified that the directive should not be enforced “[b]ecause first of all, it’s a Directive; and two, I was under duress when I signed this.” (McQueen decl., Ex. C, 90:22-25.)

· Loeb testified that Vergara berated him the day of signing, that she was “loud,” “intense,” “bossy,” “pushy” and “irritable.” Loeb was very embarrassed and humiliated and didn’t like “being put down and yelled at and screamed in front of people. It’s embarrassing and humiliating.” Loeb did not want to get “yelled and screamed at, you know, by her. And so I just—I signed it.” Id., Ex. D, 119:3-11, 121:22-122:3. Loeb testified that the berating caused him anxiety and she was getting loud while they were alone, so he didn’t want to fight anymore.

· Loeb testified that it was a constant theme and that Vergara would call him names like “loser” and use obscenities against him. (Ex. D at 120:1-23). Loeb also argues that he testified about a pattern of emotional and physical abuse in the relationship for which he has evidence and for which there are witnesses, all of which is the backdrop for why the events that took place on the day of signing amounted to duress.[5]

Loeb argues that the veracity and credibility of Loeb’s testimony is for a trier of fact to determine. Further, the issue of Loeb’s state of mind is also an issue of fact.

Under the modern rules, “[d]uress, which includes whatever destroys one's free agency and constrains [her] to do what is against [her] will, may be exercised by threats, importunity or any species of mental coercion [citation] ....” (In re Marriage of Baltins (1989) 212 Cal. App.3d 66, 84). “It is shown where a party “intentionally used threats or pressure to induce action or nonaction to the other party's detriment [citation].” (Id.) “To determine whether a contract (or a default judgment) was the product of duress, the courts look not so much to the nature of the threats, but to their effect on the state of the threatened person's mind.” (Id.) Accordingly, duress may be found where the effect that “Wife was ‘very emotional, upset and distraught to the point that ... she was acting under her husband's will.’” (Id.)

While Vergara argues that duress can only occur when one party uses an unlawful action to secure the other party’s consent, the law on duress is not as strict as Vergara contends. Where there is a pattern of abuse between a romantic couple, a triable issue of fact may exist regarding whether or not one party’s berating behavior against another party may constitute mental coercion—i.e., that the past triggered Loeb to be very emotional, embarrassed, and anxious to the point that he was acting under Vergara’s will. The veracity and credibility of Loeb’s claims are an issue for a trier of fact to decide. Loeb’s testimony, to the extent it says what Loeb claims it says, would create a triable issue of fact regarding whether or not Vergara verbally and emotionally coerced him into signing the form directive. Further, while Vergara argues that other witnesses at ART did not witness a fight between Vergara and Loeb and that Loeb did not seem to be under duress, Loeb’s testimony, which contradicts that, necessarily creates a triable issue of fact. Indeed, and further, one of the ART witnesses did testify:

· “Not yelling. I mean, they were both kind of testy. He just wanted a thorough explanation, and she was okay with all the forms and had signed them all with little explanation. He just wanted more… More explanation.” (Opposition Decl. of Jalesia McQueen, Ex. E, 42:4-10).

· When asked a follow up question, that witness testified: “[Vergara] had already pre-read them and was comfortable signing them as they were without asking extra questions versus he kept wanting to ask questions, even though they had already signed these prior. And so that why she was just “Let’s go. We’ve done this before. It’s the same thing.” (Id., 89:19-24).

A trier of fact could infer that that testimony corroborated Loeb’s claims of what occurred while Loeb and Vergara were alone earlier.

However, because the court does not have the evidence of the alleged pattern of abuse that Loeb cites, the court cannot issue a ruling at this time. The court orders Loeb to file a copy of the opposition declaration of Jalesia McQueen, which contains a complete version of Exhibit D, attaching the deposition testimony that Loeb contends supports his contention that a pattern of abuse occurred that caused the duress in signing the form directive. The court will take the motion under submission and, to the extent necessary, re-notice a hearing on the motion for a later date if that testimony is insufficient to create a triable issue of fact.

C. The Remainder of Vergara’s Issues

The remainder of the issues that Vergara raises hinges on the enforceability of the form directive against Loeb. If there is a triable issue of fact regarding an essential element of the form directive that makes it unenforceable (i.e., consent), then triable issues of fact necessarily exist for Vergara’s first through third causes of action (i.e., no declaratory relief, no injunctive relief, and no breach of contract judgment can be entered on summary adjudication if a triable issue of fact exists regarding the enforceability of the very contract that Vergara is trying to enforce). The court, therefore, will not rule on the remaining issues until the court receives the full version of Loeb’s Exhibit D.


[1] The court uses the term “embryos” to track the language off the form directive for consistency. The parties dispute whether “embryo” or “pre-embryo” should be used. Because that is not at issue in this motion, the court’s use of the word “embryos” instead of “pre-embryos” has no legal significance.

[2] In the event of separation of the partners, HSC §125315(b)(3)(F) recognizes an option based on “Other disposition that is clearly stated.”

[3] Indeed, one could easily argue that the directive here advances public policy by presenting a contractual framework informing IVF participants of their options and conditions for the exercise of their options.

[4]Loeb makes brief arguments about the specific form directive not being enforceable as between the parties for lack of consent in his motion but does not elaborate. In Vergara’s motion for summary adjudication, the parties discuss various issues relating to the specific elements of the form directive and Loeb’s various defenses in much more depth. Accordingly, the court analyzes whether triable issues of fact exist relating to the existence and validity of the specific form directive as between the parties in addressing Vergara’s motion for summary adjudication below.

[5] The court notes that in Loeb’s opposition (2:17-18), Loeb specifically cites to Exhibit D, Loeb’s 8/7/2015 deposition transcript at 251:22-25 and 252-254:1-19. Unfortunately, the unredacted courtesy copy of Exhibit D that the court received (in binders prepared by Vergara’s counsel) does not contain those pages. The court, therefore, cannot analyze the substance of that testimony.

Case Number: BC650580    Hearing Date: October 23, 2020    Dept: 73

10/23/2020

Dept. 73

Rafael Ongkeko, Judge presiding

SOFIA VERGARA v. NICHOLAS LOEB, et al. (BC650580)

Counsel for Plaintiff/moving party: Fred Silberberg; Susan Allison, Lauren Babst (Jeffer Mangels Butler & Mitchell LLP)

Counsel for Defendant: Michael W. Caspino, Michael Weiler (Buchalter); Jalesia McQueen (McQueen Kuenzel, LLC)

VERGARA’s MOTION FOR TERMINATING, EVIDENTIARY, AND MONETARY SANCTIONS (filed 9/23/2020)

TENTATIVE RULING (updated 10/23/20 and posted as of approx. 7:54am)

Plaintiff’s motion for an order to seal the requested documents is granted.

The court denies Plaintiff’s request for terminating sanctions. However, the court uses its discretion to fashion the following sanctions:

· Defendant Loeb is precluded from offering any other additional evidence (facts, witnesses, or documents) other than the facts, witnesses, or documents that Loeb included in Loeb’s May 2020 form interrogatory responses at trial for any of Loeb’s affirmative defenses.

· Loeb is precluded from offering any further documentary evidence of an “oral agreement” other than the documents that Loeb identifies in his latest response to RFP No. 15.

· The court reopens discovery for the following narrow purpose: Loeb is ordered to serve further responses to Form Interrogatory 15.1 that identifies only the discrete, relevant facts, discrete witnesses, and discrete documents for each affirmative defense that Loeb alleges within 15 days. Loeb is also ordered to identify any affirmative defense that Loeb does not intend to pursue at trial. To the extent that Loeb’s further responses are still deficient, any discovery motion cut-off is extended to __________ to allow Vergara to file another motion to compel and for sanctions. The court admonishes Loeb that the court may be inclined to impose harsher sanctions if the further responses are still deficient.

The court denies Vergara’s request for an order barring Loeb from introducing evidence at trial related to an alleged oral agreement, duress, and violation of Health and Safety Code section 125315.

The court grants Vergara’s request for monetary sanctions in part and imposes monetary sanctions against Loeb in the amount of $17,208.75.

DISCUSSION

I. Vergara’s Motion to File Documents Under Seal

A court may order a record sealed if it finds: (1) there exists an overriding interest outweighing the public's right of access; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to protect the overriding interest. (See Cal. Rule of Court ("CRC") 2.550(d); see also Overstock.Com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal. App. 4th 471, 506-08.)

In her motion to seal certain documents related to her discovery sanctions motion, Plaintiff requests that the court seal documents containing deposition testimony, discovery responses and private identifying information about the parties, all of which has been designated confidential subject to the protective orders entered in this case and prior cases between the parties. The court finds that the interests of the parties’ privacy overrides and outweighs the public’s right of access. That overriding interest supports sealing, particularly given the sensitive and private nature of the records and given that Plaintiff narrowly tailored her requests to easily identified specific documents. The unopposed motion to seal is granted.

II. Terminating Sanctions Request

On September 23, 2020 Vergara filed a motion for an order granting the following discovery sanctions: (1) striking Loeb’s answer and all affirmative defenses and entering default against him, (2) barring Loeb from introducing evidence at trial to support unpled defenses related to an alleged oral agreement, alleged duress, and violation of Health and Safety Code § 125315, (3) awarding $34,417.50 in monetary sanctions. On October 6, 2020 Loeb filed an opposition. On October 13, 2020, Vergara filed a reply.

A. Legal Standard for Discovery Sanctions

"The purpose of the discovery rules is to 'enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.'" Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389. Discovery should “make a trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” (Crumpton v. Dickstein (1978) 82 Cal. App. 3d 166, 170).

Accordingly, “[t]he discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992). The Discovery Act authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against “anyone engaging in conduct that is a misuse of the discovery process.” Cal. Civ. Proc. Code § 2023.030. Misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery” (§2023.010(d); “[m]aking, without substantial justification, an unmeritorious objection to discovery” (§2023.010(e)); “[m]aking an evasive response to discovery” (§2023.010(f)); and “[d]isobeying a court order to provide discovery” (§2023.010(g)).

For terminating sanctions, the court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate.  (See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1229.)  “[W]here a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’  [Citation.]”  (Los Defensores, Inc. v. Gomez Indeed, “even under the Civil Discovery Act’s incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective. [Citations.]”  (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191-192.)   “The court [is] not required to allow this pattern of abuse to continue ad infinitum.”  (Mileikowsky Healthsystem¿(2005) 128 Cal.App.4th 262, 280.)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”¿ (Los¿Defensores, 223 Cal.App.4th at p. 390 (citing¿Lang,¿supra,¿77 Cal.App.4th at pp. 1244-1246 (discussing cases));¿see, e.g.,¿Collisson¿& Kaplan v.¿Hartunian¿(1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery);¿Laguna Auto Body v. Farmers Ins. Exchange¿(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in¿Garcia v. McCutchen¿(1997) 16 Cal.4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes); Liberty Mut. Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal. App. 4th 1093, 1098 (terminating sanctions appropriate where, despite court orders, responding party’s third supplemental responses to Form Interrogatory 15.1 were still evasive).

Further, as a lesser sanction, the court may prohibit a party who disobeys a court order from introducing designated matters into evidence (Code Civ. Proc., § 2023.030, subd. (c)), the practice of excluding evidence is most appropriate where a party wholly fails to produce the evidence in discovery.  (See, e.g., Deeter Vallbona

B. The Parties’ Positions

1. Form Interrogatory 15.1

Vergara argues that despite a year of meeting/conferring, after serving multiple sets of supplemental responses, Loeb’s responses to Form Interrogatory 15.1 regarding Loeb’s 30 affirmative defenses are still evasive. According to Vergara:

· On May 23, 2019, Vergara served Loeb with Form Interrogatories, Set 1.

· Loeb responded on July 5, 2019, but those responses contained boilerplate objections and incomplete responses.

· The parties met/conferred, and Loeb served unverified responses on July 29, 2019, which added new objections. (Silberberg Decl., Ex. 6)

· On August 14, 2019, the parties attended an informal discovery conference with the court (Judge Lui). The minute order for that informal discovery conference stated: “Defendant to provide supplemental request for admission/form interrogatories and request for production responses and privilege log by 9/13/2019.” (Silberberg Decl., Ex. 8)

· Loeb did not serve any supplemental responses to the form interrogatories by September 13, 2019.

· On September 20, 2019, Vergara filed a motion to compel further responses to form interrogatory 15.1 (among other discovery) the Form Interrogatories and sought monetary sanctions.

· On January 22, 2020, the court granted Vergara’s motion to compel in part, ordering Loeb to serve supplemental responses to, among other interrogatories, form interrogatory 15.1. The court found that “Loeb asserted 30 separate affirmative defenses in his answer. Defendant must have some knowledge of any facts, witnesses, or documents on which he intends to rely in defense of this action.” The court also imposed monetary sanctions against Loeb. (Silberberg Decl., Ex. 9)

· On February 6, 2020, Loeb served a second set of supplemental responses to form interrogatory 15.1 (among others). Loeb’s response was a single seven-page narrative that was copied and pasted 30 times, with the identical response for all 30 affirmative defenses. Loeb’s response identified four individuals (Loeb and three individuals not involved in the IVF procedures as having knowledge of the facts pertaining to all affirmative defenses and stated that all documents pertaining to all his affirmative defenses had "already been produced." (Silberberg Decl., Ex. 11).

· On April 22, 2020, Vergara’s counsel met/conferred with Loeb’s counsel on the further response.

· On May 1, 2020, Loeb serve a third set of supplemental responses to form interrogatory No. 15.1, containing the same 7-page response for all affirmative defenses. (Silberberg Decl., Ex. 12). These responses were served two weeks before the discovery cut-off.

Loeb responds as follows:[1]

· The August 14, 2019 order on the IDC was not a judicial order. Rather, at the IDC, the parties agreed to meet/confer to narrow the discovery issues, and Defendant could provide additional responses by September 13, 2019. Plaintiff’s counsel, Mr. Silberberg, was not present at the Informal Discovery Conference and has no personal knowledge of the informal discussions. Notably, however, Loeb’s counsel does not offer a declaration regarding what transpired at the IDC.

· Defendant did not violate the court’s January 22, 2020 order because Defendant did serve supplemental responses to Form Interrogatory 15.1. Simply because Vergara was not satisfied with those responses does not make those responses a willful violation of a court order.

· After Loeb served the February 6, 2020 supplemental responses to form interrogatory 15.1, plaintiff made no attempt to conduct further discovery on Loeb’s asserted facts and made no attempt to depose the witnesses that Loeb identified.

· Plaintiff made no attempt to meet/confer on Loeb’s February 6, 2020 responses until April 22, 2020 (over two months later). Further, Plaintiff waited until September 23, 2020 to file this motion for sanctions—six months after Loeb served the February 6, 2020 responses. Plaintiff conducted no further discovery and waited well past any reasonable time to challenge Defendants’ purported noncompliance.

2. Requests for Production

Vergara also argues that Loeb continued to misuse the discovery process by his responses to Vergara’s requests for production:

· On February 28, 2017, Vergara served the first set of requests for production on Loeb and re-served the discovery after remittitur from the anti-SLAPP motion ("RFP 1").

· Loeb’s initial responses consisted entirely of objections. (Silberberg Decl., Ex. 15).

· Vergara then met/confer, and Loeb served supplemental responses on July 2, 2019. (Silberberg Decl., Ex. 17). Those responses still included objections and insufficient responses.

· The parties also discussed RFP 1 at the August 14, 2019 IDC, and the court’s order on the IDC reflected the parties’ agreement that Loeb would serve further responses by September 13, 2019.

· On September 12, 2019, Loeb served a second set of supplemental responses, which were unverified and still contained objections. (Silberberg Decl., Ex. 21).

· On October 4, 2019, Vergara filed a motion to compel regarding RFP 1, and the court granted that motion on January 22, 2020. In regard to RFP No. 15, which asked for documents supporting any claim Loeb was making as to an "oral agreement," the January 22 Order directed Loeb either to state that he was not pursuing an "oral agreement defense or to answer that request fully and produce a proper privilege log. (Silberberg Decl., Ex. 9).

· On February 6, 2020, Loeb served a third set of supplemental responses. For RFP No. 15, Loeb merely responded by stating that “documents would be produced.” (Silberberg Decl., Ex. 22).

· After a further meet/confer, Loeb served a fourth set of supplemental responses. The only responsive documents Loeb identified as supporting the alleged oral agreement were the same documents he claimed supported his 30 pleaded affirmative defenses in his responses to Form Interrogatory 15.1. (Silberberg Decl., Ex. 23).

· Vergara served a second set of document requests on Loeb on May 10, 2019. Loeb failed to timely respond to that set and failed to request an extension. Loeb's deficient responses to Demands Set 2 were also the subject of the Court's August 14 and January 22 Orders.

· As for Loeb’s document production, Loeb essentially did a document dump on Vergara, producing over 56,000 pages of documents, many of which were not relevant to any RFPs that Vergara, many were not bates-labeled, not organized to correspond to any document requests, and were duplicative of one another.

Loeb responds as follows:

· Loeb specifically identified the documents that relate to his claimed oral agreement in response to Form Interrogatory 15.1.

· The documents were bates-stamped KR in the prior Louisiana matter, but nonetheless, were bates-stamped and can be easily referenced.

· The reason why Loeb produced so many documents was because Plaintiff’s requests were expansive. Plaintiff was at fault for not narrowly tailoring her discovery requests and cannot now complain about a document dump.

· Loeb eventually verified his responses.

C. Court’s Analysis

The court is troubled by this unnecessary, extensive discovery history between the parties.

As for Form Interrogatory 15.1, the court agrees with Vergara that despite over a year of meeting and conferring, an IDC, a motion to compel, a court order, and three supplemental responses, Loeb’s latest May 1, 2020 supplemental response to Form Interrogatory 15.1 is still deficient. Form Interrogatory 15.1 requires Loeb to state actual discrete evidentiary facts, witnesses, and documents that are relevant for each affirmative defense. Loeb’s copying and pasting a 7-page conclusionary narrative for each affirmative defense is evasive. There is no way from Loeb’s response to gauge the actual relevant facts, the actual witnesses, and the actual documents that Loeb claims support each discrete affirmative defense. For example, how do facts relating to a prior failed surrogacy attempt relate to a violation of freedom of speech (e.g., Loeb’s second affirmative defense). How does Loeb’s version of events relate to the statute of limitations (e.g., Loeb’s 24th affirmative defense)? How did Vergara fail to mitigate damages (Loeb’s 10th affirmative defense)? How is Vergara not entitled to punitive damages when Vergara does not seek punitive damages (Loeb’s 14th-20th affirmative defenses). To the extent that Loeb claims that some affirmative defenses are purely legal such that no facts exist, Loeb should so state. From Loeb’s response, one cannot discern which affirmative defense is viable, which affirmative defense has no factual basis, whether or not Loeb intends to proceed with all 30 affirmative defenses at trial, and the evidence that plaintiff must meet to address each affirmative defense. The court finds Loeb’s continued evasive responses a willful misuse of the discovery process.

As for the requests for production, while Vergara lists a lengthy history, the only request for production that Vergara actually takes issue with is RFP No. 15. The court finds that Loeb’s most recent supplemental response to RFP No. 15 is responsive. Loeb identifies, by bates ranges, the documents that he intends to use for his claimed oral agreement at trial. As for request for production, set two, Vergara does not contend that any subsequent responses after the court’s January 22, 2020 order are deficient—i.e., the January 22, 2020 order already addressed Vergara’s concerns. Finally, as for the document productions, Vergara had the opportunity to file motions to compel to address any deficiencies she claims in those productions. The January 22, 2020 order either already addressed Vergara’s claimed deficiencies or Vergara did not file any subsequent motions to compel after Loeb produced.

As an aside, the court is very wary as to the timing of Vergara’s motion. Why did Vergara wait two months, until April 22, 2020, to address Loeb’s February 6, 2020 response? Even after Loeb served supplemental responses in May 2020, why did Vergara not file further motions to compel and/or even file this motion for sanctions then? Why did Vergara wait until September 2020—months later—to do so? The delay and timing of Vergara’s motion suggests that Vergara is using this motion for sanctions as a punitive litigation strategy rather than a genuine interest in obtaining further discovery.

Given this, the court does not find that terminating sanctions are warranted. However, the court does find that less drastic sanctions are warranted given the length and continued history/pattern of discovery conduct. The court uses its discretion to fashion the following sanctions for Loeb’s misuse of the discovery process, particularly in relation to Form Interrogatory 15.1:

· Loeb is precluded from offering any other additional evidence (facts, witnesses, or documents) other than the facts, witnesses, or documents that Loeb included in Loeb’s May 2020 form interrogatory responses at trial for any of Loeb’s affirmative defenses.

· Loeb is precluded from offering any further documentary evidence of an “oral agreement” other than the documents that Loeb identifies in his latest response to RFP No. 15.

· The court reopens discovery for the following narrow purpose: Loeb is ordered to serve further responses to Form Interrogatory 15.1 that identifies only the discrete, relevant facts, discrete witnesses, and discrete documents for each affirmative defense within 15 days without objection other than privilege objections. To the extent that Loeb contends any documents are privileged, Loeb must serve a detailed privilege log. Loeb is also ordered to identify any affirmative defense that Loeb does not intend to pursue at trial. To the extent that Loeb’s further responses are still deficient, any discovery motion cut-off is extended to __________ to allow Vergara to file another motion to compel and for sanctions. The court admonishes Loeb that the court may be inclined to impose harsher sanctions if the further responses are still deficient.

III. Evidentiary Sanctions Request—Unpled Affirmative Defenses

If a party does not raise an affirmative defense in an answer, matters constituting an affirmative defense are irrelevant at trial. (Carranza v. Noroian (1966) 240 Cal.App.2d 481, 488). Accordingly, a party's failure to raise a particular defense at the earliest possible time may result in a waiver of the defense. (See, e.g., California Concrete v. Beverly Hills S L Assn, 215 Cal.App.3d 260 (1989) (where defendant did not plead defense on which it premised its motion for summary judgment, and delayed in raising the defense without seeking leave to amend, it was properly found to have waived that defense); Minton v. Cavany, 56 Cal.2d 576, 581 (1961) (defendant waived defense by failing to plead it in answer or as ground for demurrer); Philbrick v. Huff, 60 Cal.App.3d 633, 644 (1976) (affirmative defense waived by failing to plead it in appropriate pleading)).

Vergara argues that Loeb failed to plead any defense about any alleged oral agreement, duress, or mention HSC 125315. Late in discovery, however, Loeb raised these issues, which Vergara argues are three defenses which Loeb failed to plead. Accordingly, Vergara asks this court to preclude Loeb from offering any evidence at trial regarding an alleged oral agreement, duress, or violation of HSC 125315.

Loeb argues that his general denials encompass these facts. “In the case of a complaint for breach of contract, a general denial denies that there is a contract, that the plaintiff performed or had an excuse for nonperformance, that the defendant did not perform, or that the plaintiff was damaged. A general denial allows the denying party the opportunity to present evidence to refute the allegations in the complaint.” (Walsh v. West Valley Mission Comm. College Dist. (1998) 66 Cal.App.4th 1532, 1545.)

The court disagrees with Vergara’s narrow argument. The court finds that facts relating to Loeb’s claimed oral agreement and duress are evidentiary facts that support Loeb’s affirmative defenses and/or general denial (e.g., these facts, if true, would tend to support Loeb’s seventh affirmative defense for waiver, estoppel, unclean hands, acquiescence, Loeb’s 28th affirmative defense of Plaintiff’s consent and/or general denial that the form directive is an enforceable contract). The court finds that Loeb’s claims relating to HSC 125315 relate to Loeb’s fifth affirmative defense that “Defendant has not acted with the requisite degree of knowledge, intent, or fault.” Further, Vergara is aware of, and has conducted discovery on, these facts/issues (which the parties have already extensively briefed in their cross motions for summary judgment/adjudication). Vergara, therefore, has not suffered any prejudice, particularly since trial is not even set. Indeed, Vergara has not conducted further discovery and has not requested that the court reopen discovery on any of the “unpled” facts/issues that Loeb raises. Finally, and in any event, given the liberality of allowing amendment of pleadings (even on the eve of trial), if these evidentiary facts are considered “affirmative defenses,” given that Defendant could simply request leave to amend the answer to plead these affirmative defenses, and given that trial has not even been set, such a draconian sanction is inappropriate at this time. The court denies Vergara’s request for evidentiary sanctions.

IV. Monetary Sanctions Request

Finally, Vergara requests $34,417.50 in monetary sanctions for Loeb’s misuse of the discovery process, as follows:

· Babst (4th year associate): 34.1 hours at a rate of $415/hr. ($14,151 total) to research, revising, and summarize procedural history for motion for sanctions.

· Allison (20 year associate): 22.9 hours at $886/hr. ($20,266.50 total) to draft memorandum of points and authorities, revision declarations, and incorporating the evidence in the declaration to the moving papers.

The court finds that, given Loeb’s misuse of the discovery process, monetary sanctions are warranted. The court finds the hourly rate to be reasonable. While the number of hours, at first glance, appears high, the actual work product on this motion is extensive, detailed, and organized. However, because the court did not grant Vergara’s motion in full, the court uses its discretion to reduce the amount of sanctions requested in half. The court, therefore, imposes monetary sanctions against Loeb in the amount of $17,208.75.

Unless waived, notice of ruling by moving party.


[1] Loeb mentions that Vergara did not file a separate statement with the motion.  A separate statement is only required for a motion for a moving party’s request for issue  and evidentiary sanctions.   CRC 3.1345.  Vergara asked for terminating sanctions. Although Vergara seeks evidentiary sanctions for unpled "affirmative defenses," the answer is the dispositive document, not any discovery response.  Finally, even if a separate statement were required, the court may still consider the merits.  

Case Number: BC650580    Hearing Date: September 11, 2020    Dept: 73

9/11/2020

Dept. 73

Rafael Ongkeko, Judge presiding

SOFIA VERGARA v. NICHOLAS LOEB, et al. (BC650580)

Counsel for Plaintiff/moving party: Fred Silberberg (Fred Silberberg PC); Susan Allison, Lauren Babst (Jeffer Mangels Butler & Mitchell LLP)

Counsel for Defendant: Michael W. Caspino, Michael Weiler (Buchalter); Jalesia McQueen (McQueen Kuenzel LLC)

Matters:

  1. LOEB’S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES (filed 5/7/2020)

  2. LOEB’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSIONS SET ONE, AND REQUESTS FOR PRODUCTION, SET ONE (filed 05/15/2020)

  3. VERGARA’s MOTION TO FILE UNDER SEAL OPPOSITION TO LOEB’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSIONS SET ONE, AND REQUESTS FOR PRODUCTION, SET ONE (filed 07/07/2020)

  4. VERGARA’s MOTION TO FILE UNDER SEAL OPPOSITION TO LOEB’S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES (filed 08/03/2020)

 

TENTATIVE RULING

Motions to Seal: The court grants Plaintiff’s unopposed motions to seal. Proposed orders have been served and received by the court.

Loeb’s Motion to Compel Further—Form Interrogatories:

The motion is granted regarding form interrogatory nos. 2.3, 2.4 and 2.6. The motion is denied regarding form interrogatory nos. 2.11, 2.12, 2.13, 6.1, 6.2-6.7, 7.1, 9.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 14.1, and 14.2.

Sanctions are denied.

Loeb’s Motion to Compel Further—RFAs and RFPs:

The motion is denied as to RFA nos. 7, 11, 16, 19, 21, 22, 25, 26, 31, 32, 33.

The motion is denied as to RFP Nos. 3, 4, 5, 6, 7, 9, 14, 16, 17, 18, 19, 20, 22.

The motion is granted as to RFP no. 21 as modified by the court.

Sanctions are denied.

Discussion

Pending Motions

Motion 1: Loeb’s Motion to Compel Further—Form Interrogatories (Vergara’s Motion to File Opposition Under Seal)

On May 7, 2020 Loeb filed a motion to compel further responses regarding form interrogatories against Vergara. On August 3, 2020 Vergara filed an opposition. Vergara also filed a motion to file her opposition to Loeb’s motion under seal. Loeb did not file a reply.

Motion 2: Loeb’s Motion to Compel Further—RFAs and RFPs (Vergara’s Motion to File Opposition Under Seal)

On May 15, 2020 Loeb filed a motion to compel further response regarding requests for admission and requests for production against Vergara. On July 7, 2020 Vergara filed an opposition. Vergara also filed a motion to file her opposition to this motion under seal. Loeb did not file a reply.

ANALYSIS

  1. Vergara’s Motions to File Oppositions Under Seal

A court may order a record sealed if it finds: (1) there exists an overriding interest outweighing the public's right of access; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to protect the overriding interest. (See Cal. Rule of Court ("CRC") 2.550(d); see also Overstock.Com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal. App. 4th 471, 506-08.)

In both motions to seal, Plaintiff requests that the court seal documents containing deposition testimony, discovery responses and private identifying information about the parties, all of which has been designated confidential subject to the protective orders entered in this case and prior cases between the parties. The court finds that the interests of the parties’ privacy overrides and outweighs the public’s right of access. That overriding interest supports sealing, particularly given the sensitive and private nature of the records and given that Plaintiff narrowly tailored her requests to easily identified specific documents. The motions to seal are granted.

  1. Loeb’s Motion to Compel Further—Form Interrogatories

Defendant moves the court for an order compelling Plaintiff to provide further responses to Form Interrogatory Nos. 2.3, 2.4, 2.6, 2.11, 2.12, 2.13, 6.1, 6.2-6.7, 7.1, 9.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 14.1, and 14.2 as evasive, incomplete, or containing general objections without merit. Plaintiff argues that the definition of INCIDENT is overly broad and that the information Defendant seeks by these interrogatories are not relevant to this action.

  1. Legal Standard

[T]he propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete[;] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[; or] (3) An objection to an interrogatory is without merit or too general.” (Cal. Civ. Proc. Code § 2030.300.)   

A party is entitled to seek all discovery that is relevant to the subject matter of the action. (Cal. Civ. Proc. Code § 2017.010.) The test for determining if something is discoverable is whether the requested matters “appears reasonably calculated to lead to the discovery of admissible evidence.” (Id.) Information is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing for trial, or aiding in settlement of the case. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) “A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Ct. (2017) 3 Cal. 5th 531, 540.) Accordingly, courts liberally apply the "relevant" and "reasonably calculated to lead to discovery of admissible evidence" standards and generally rule in favor of permitting discovery.  (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal. 3d 785, 790.)

The answer to each interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits.”  (Cal. Civ. Proc. Code § 2030.220(a); Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 590; Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 145.)  An answer is incomplete if it merely refers to other documents without summarizing them, e.g., “See my deposition,” or “See the financial statement.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783–784 [opinion contains comprehensive list of responses that fail to fully answer interrogatories].)  When an interrogatory cannot be answered completely, it must be answered to the extent possible. (Cal. Civ. Proc. Code § 2030.220(b).) 

On a motion to compel, the responding party has the burden of establishing a valid objection. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220.)

  1. INCIDENT OBJECTION—Form Interrogatory Nos. 2.3, 2.4, 2.11, 2.12, 2.13, 6.1, 6.2-6.7, 7.1, 9.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 14.1, and 14.2

The parties’ main dispute is whether or not Defendant sufficiently defined the word “INCIDENT.” Most of Plaintiff’s objections limit the scope of Plaintiff’s responses to Plaintiff’s own definition of the breaches of the contract that Plaintiff bases her claims (i.e., the Form Directive).

In these form interrogatories, INCIDENT “includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” The crux of Plaintiff’s claims against Defendant are alleged breaches, i.e., whether Defendant’s repeated court actions constitute breaches of the Form Directive. The Discovery Act requires a party to respond as straightforward and complete as possible. This definition asks a responding party to tailor their responses based on their allegations of breaches/conduct that gave rise to this action. The court finds that the definition of INCIDENT is adequate enough to require Plaintiff to respond, but only to the extent of Plaintiff’s understanding of the occurrences or breaches about which Plaintiff alleges gave rise to this action. To the extent that Plaintiff refused to respond to interrogatories altogether based on this objection, Plaintiff’s objections are overruled (particularly given that Plaintiff was able to answer other interrogatories containing the word “INCIDENT.”) To the extent that Plaintiff responded to these interrogatories based on Plaintiff’s understanding of the word “INCIDENT,” Plaintiff’s objections are sustained.

Accordingly, for form interrogatory nos. 2.3 and 2.4, because Plaintiff refused to respond at all based on Plaintiff’s objection to the word “INCIDENT,” the court grants the motion. The court finds that the information sought by these form interrogatories are relevant (i.e., identifying information regarding the main percipient witness and/or other percipient witnesses in this case), particularly given that these form interrogatories are routinely served in civil litigation and approved by the Judicial Council. The scope of discovery is broad and Plaintiff is entitled to this information.

For form interrogatory nos. 2.11, 2.12, 2.13, 6.1, 6.2-6.7, 7.1, 9.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 14.1, and 14.2, the motion is denied. Plaintiff responded directly to these interrogatories as completely as possible based on Plaintiff’s definitions and allegations of what constitutes the “INCIDENT,” which Plaintiff specifically includes in Plaintiff’s responses. If Defendant wants a more specific or expansive definition of INCIDENT than the one provided by Plaintiff, Defendant should have so stated (by identifying the specific further circumstances or events about which Defendant wants further information). Plaintiff asked Defendant to do so during the meet/confer, but Defendant refused to do so. Accordingly, the court finds that Plaintiff’s responses to these interrogatories are sufficient.

  1. Form Interrogatory No. 2.6

INTERROGATORY NO. 2.6—State:

(a) The name, ADDRESS, and telephone number of your present employer or place of

self-employment; and

(b) The name, ADDRESS, dates of employment, job title, and nature of work for each

employer or self-employment you have had from five years before the INCIDENT until

today.

For form interrogatory 2.6, in addition to objecting to the word “INCIDENT,” Plaintiff also raises a privacy objection and refuses to respond based on those objections. Based on these objections, Plaintiff only provided information regarding Plaintiff’s current employment. Defendant argues that a response to this interrogatory is relevant because it may lead to evidence that identifies percipient witnesses. Given the broad scope of discovery, the court finds that this interrogatory is relevant. Further, the court finds that, rather than refusing to respond to this interrogatory altogether based on Plaintiff’s objection to “INCIDENT,” Plaintiff was obligated to respond to the extent possible—i.e., by using Plaintiff’s own definition of “INCIDENT.”

As for Plaintiff’s privacy objections, Plaintiff has failed to meet the Hill test:

The California Constitution grants Californians a right to privacy, which “protects the individual’s reasonable expectation of privacy against a serious invasion.” Pioneer Electronics (USA), Inc. v. Super. Ct. (2007) 40 Cal. 4th 360, 370. To evaluate claims of invasion of privacy (including when deciding the scope of discovery), a court should employ the analytical framework that the California Supreme Court set forth in Hill v. Nat’l. Collegiate Athletic Assn (1994) 7 Cal. 4th 1:

Hill, 7 Cal. 4th at 35-37; Pioneer, 40 Cal. 4th 370-71. If a claimant meets these criteria, then the court must balance the privacy interest at stake against other competing or countervailing interests. Pioneer, 40 Cal. 4th 370-71; Williams, 3 Cal. 5th at 554-555.

Here:

The objections are, therefore, overruled. The motion is granted as to this interrogatory.

  1. Sanctions

Both parties request sanctions. The court finds that the disputes in this motion should have easily been resolved by the parties without the need for court intervention. The court particularly admonishes Defendant’s counsel for not further meeting/conferring on their more specific definition of “INCIDENT.” At this time, the court is disinclined to impose sanctions. The court admonishes the parties to meet/confer more extensively in the future and that the court may consider sanctions the next time that the court must waste judicial time and resources on trivial objections or motions to which the parties should have been able to resolve.

  1. Loeb’s Motion to Compel Further—RFAs and RFPs

Defendant moves the court for an order compelling Plaintiff to provide further responses to:

Plaintiff argues that the information that Defendant seeks in these requests violates Plaintiff’s privacy, is barred from disclosure by the physician-patient privilege, and is irrelevant.

  1. Requests for Admission Nos. 7, 11, 21, 22, 25, 26, 31, 32, 33/ Requests for Production Nos. 17, 19, 20, 22.

These requests ask:

REQUEST FOR ADMISSION NO. 7:

Admit that YOU told DEFENDANT, during the RELATIONSHIP and prior to signing the FORM DIRECTIVE, that YOU opposed elective abortion.

REQUEST FOR ADMISSION NO. 11:

Admit that YOU believe in a woman's right to choose an elective abortion during the first 20 weeks of gestation.

REQUEST FOR ADMISSION NO. 21:

Admit that YOU are the biological mother of one child born alive, who is still living.

REQUEST FOR ADMISSION NO. 22:

Admit that YOU do not have any other embryos currently in cryopreservation with any other partner, other than the FROZEN EMBRYOS.

REQUEST FOR ADMISSION NO. 25:

Admit that YOU provided one of YOUR gestational surrogates with gifts, including mortgage payments for the gestational surrogate's home.

REQUEST FOR ADMISSION NO. 26:

Admit that YOU were aware, during the RELATIONSHIP, of DEFENDANT'S desire to have

children born alive.

REQUEST FOR ADMISSION NO. 31:

Admit that, during the RELATIONSHIP, YOU punched DEFENDANT in the face.

REQUEST FOR ADMISSION NO. 32:

Admit that during the RELATIONSHIP YOU kicked DEFENDANT.

REQUEST FOR ADMISSION NO. 33:

Admit that during the RELATIONSHIP YOU threw YOUR phone at DEFENDANT’s head.

REQUEST FOR PRODUCTION NO. 17:

All DOCUMENTS that RELATE TO and/or refer to COMMUNICATIONS and CORRESPONDENCE between YOU and any THIRD PARTY relating to any other embryos created from a man's sperm and PLAINTIFF'S ova.

REQUEST FOR PRODUCTION NO. 19:

All DOCUMENTS that RELATE, refer, or pertain to any COMMUNICATIONS and CORRESPONDENCE between YOU and any THIRD PARTY related to YOUR alleged desire not to birth any more children using your own uterus.

REQUEST FOR PRODUCTION NO. 20:

All DOCUMENTS that RELATE, refer, or pertain to any COMMUNICATIONS and CORRESPONDENCE between YOU and any THIRD PARTY related to YOUR alleged desire, whether in the past or currently, not to have any more children through surrogacy or otherwise, where DEFENDANT is the biological father.

REQUEST FOR PRODUCTION NO.22:

All DOCUMENTS that pertain, refer to, RELATE or reflect any gifts and/or payments made to YOUR gestational surrogates.

The court finds that these requests ask highly personal, sensitive information that have very little to no relevance to the issues in this case—i.e., whether a breach occurred. Defendant does not identify one defense for which Defendant needs this information, but makes general arguments about Plaintiff’s “state of mind.” Plaintiff’s views on abortion, the number of children Plaintiff has, Plaintiff’s embryos/relationships with surrogates, and/or purported fights that Plaintiff had with Defendant during their relationship have no bearing on any of Plaintiff’s claims or Defendant’s defenses—and Defendant identifies none. The court finds that these requests do not meet the Hill privacy test (as stated above) to warrant the disclosures Defendant now seeks:

Because all three criteria are met, the court must balance the privacy interest at stake against other competing or countervailing interests. (Pioneer, 40 Cal. 4th 370-71; Williams, 3 Cal. 5th at 554-555). Because the court finds very little probative value in this information related to any of Defendant’s defenses, on a balancing test, no compelling interest exists to compel disclosure of Plaintiff’s private information. Further, the court sustains Plaintiff’s objections to requests for admission nos. 31 through 33 on potential self-incrimination grounds. The motion is, therefore, denied as to these requests.

  1. Requests for Admission Nos. 16 and 19

These requests ask:

REQUEST FOR ADMISSION NO. 16:

Admit that YOU did not discuss with DEFENDANT YOUR desire to thaw the FROZEN EMBRYOS as a choice of disposition until on or about November 16, 2013.

REQUEST FOR ADMISSION NO 19:

Admit that YOU do not want the FROZEN EMBRYOS to be brought to birth.

Plaintiff does not object to these requests on relevance or privacy grounds, but objects on the grounds that these requests for admission are vague and ambiguous. Specifically, Plaintiff objects to the word “embryos,” because it is Plaintiff’s contention that the correct word is pre-embryo.

For request for admission nos. 16 and 19, Plaintiff responded fully to these requests for admission subject to Plaintiff’s objections. The court finds that given the importance of key terminology in this action and particularly Plaintiff’s versus Defendant’s definition of embryo, Plaintiff’s objections are well-taken. The motion is, therefore, denied as to these interrogatories.

  1. Requests for Production Nos. 3, 4, 5, 6, 7, 9, 14, 16, 18, 21

On a motion to compel requests for production, the propounding party bears the burden of establishing “good cause” justifying the discovery sought.” Cal. Civ. Proc. Code § 2023.310(b)(1). If good cause is shown, the burden shifts to the responding party to justify his or her objections. Kirkland v. Superior Court (2002) 95 Cal.App. 4th 92, 98 (2002).

For requests for production nos. 3, 4, 5, 6, and 18, while Defendant addresses Plaintiff’s objections, Defendant offers no explanation justifying good cause for this information. Specifically, in neither the motion nor the moving separate statement does Defendant explain why Defendant needs this information or identify Defendant’s defense/allegation to which this information would be relevant. Without a sufficient explanation as to why Defendant needs this information in the first place, the court finds that Defendant did not bear his initial burden of proof on a motion to compel production demands to establish good cause. The motion is denied as to these requests.

For request for production no. 7, which asks:

REQUEST FOR PRODUCTION NO. 7:

All DOCUMENTS that demonstrate that YOU worked in Louisiana in 2013 and 2014.

Defendant argues that this request is relevant because the people who worked with Vergara during this time period could be potential witnesses, and the information sought by this request could establish whether or not Vergara paid storage fees. First, Plaintiff is already obtaining this information from form interrogatory no. 2.6 (see above). That is sufficient to identify any potential witnesses. As framed, Defendant’s request for production is overly broad for the type of information that Defendant seeks and would encompass Plaintiff’s pay stubs, employment contracts, accounting records, credit card bills, banking records, etc.—none of which are relevant to this case. Further, there are more tailored ways to obtain information regarding whether or not Plaintiff paid for storage fees—the court is unsure how Plaintiff’s work in Louisiana even relates to payment of storage fees. The motion is denied as to this request for production.

For request for production no. 9, which asks:

REQUEST FOR PRODUCTION NO. 9:

All DOCUMENTS that RELATE TO and/or reflect YOUR alleged desire to keep the EMBRYOS in cryopreservation indefinitely.

Defendant argues that this is relevant because Plaintiff admitted in a request for admission that she wanted embryos to be in cryopreservation indefinitely. Defendant is entitled to the documents that support this admission. Plaintiff argues that Plaintiff has served further responses that complied with this request and has produced all documents. Based on the court’s review of Plaintiff’s separate statement (page 47), it appears that Plaintiff’s supplemental response withdraws all objections and has stated that plaintiff has complied with this request for production in full. Because Defendant has not filed a reply, the court will rely on that representation by Plaintiff and deny the motion as to this request as moot.

For requests for production nos. 14 and 16, which ask:

REQUEST FOR PRODUCTION NO. 14:

All DOCUMENTS that RELATE TO and/or refer to COMMUNICATIONS and CORRESPONDENCE between YOU and YOUR gestational surrogates relating to the EMBRYOS or any other embryos created from the DEFENDANT's sperm and PLAINTIFF'S ova.

REQUEST FOR PRODUCTION NO. 16:

All DOCUMENTS that RELATE TO and/or refer to COMMUNICATIONS and CORRESPONDENCE between YOU and any THIRD PARTY, to include but not limited to Defendant ART, relating to any other embryos created from the DEFENDANT's sperm and PLAINITFF'S ova.

Defendant argues that these documents go towards Vergara’s state of mind and Loeb’s reliance on the parties’ prior conduct before entering the Form Directive.

Plaintiff responds by arguing that the term embryos is vague and ambiguous, because Plaintiff contends that it is a pre-embryo since the material was never implanted into a surrogate yet. Further, Plaintiff argues that correspondence between Plaintiff and the parties’ original surrogate, Chi Bui, when a prior round of IVF was unsuccessful, is not relevant. The Form Directive was signed at a time in which no surrogate was ever retained or sought. Plaintiff argues that Defendant raises no affirmative defense based on reliance.

The court finds that, if more narrowly tailored, these requests could have some bearing on Defendant’s estoppel affirmative defense (seventh affirmative defense). However, as framed, Defendant’s request is overbroad. The phrase “All DOCUMENTS that RELATE TO and/or refer to” goes far beyond just correspondence that relate to Plaintiff’s state of mind prior to signing the Form Directive. Especially given that, as framed, these documents could include attorney-client privilege, attorney work-product, and/or physician-client privilege, the court finds that these requests are not reasonably particularized. The motion is denied as to these requests for production.

For request for production no. 21, which states:

REQUEST FOR PRODUCTION NO.21:

All DOCUMENTS that pertain, refer to, RELATE or reflect any payments made by YOU to ART.

Defendant argues that this request “goes right to the heart of whether or not Vergara fulfilled her obligations under the Form Directive, which required her to pay for the cryopreservation of the embryos.” Plaintiff argues that this request goes beyond this issue and asks for payments made to ART for any reason. The court agrees with Plaintiff. While Defendant has established good cause for showing payments made by Vergara under the Form Directive are relevant, Defendant has not explained why all payments to ART for any reason is relevant or necessary. The court, therefore, will grant this in part and deny this in part by modifying the request as follows:

Documents demonstrating any payments made by YOU to ART under the Form Directive.

Plaintiff is ordered to serve further responses that withdraw objections to the modified request and produce documents establishing payments by Plaintiff to ART, as required by the Form Directive.

Unless waived, notice of ruling by moving party.

Case Number: BC650580    Hearing Date: August 14, 2020    Dept: 73

8/14/2020

Dept. 73

Rafael Ongkeko, Judge presiding

VERGARA v. LOEB, et al. (BC650580)

Tentative rulings for matters on calendar for 8/14/2020: None at this time.

On the court’s own motion, all matters are CONTINUED TO 9/11/2020, at 10:30 a.m. (not 8:30 a.m.):

(1) Loeb's MTCF re Form Interrogatories

(2) Vergara's Motion to Seal re Opposition to (1),

(3) Loeb's MTCF re RFAs/RFPs and

(4) Vergara's Motion to Seal re Opposition to (3).  

The court requires courtesy copies of the unredacted versions of the following missing documents which should have been conditionally filed under seal:

· Moving Separate Statement and Moving Declaration for Loeb's Motion to Compel Further re RFA/RFP filed (5/15/2020)

· Motion to Seal (Res No. 0507), the moving declaration, and the notice of lodging for that motion (filed 08/3/2020)

Finally, the court requests courtesy copies of the following:

· Loeb’s replies, if any, to his two motions to compel further (Matters (1), (3)).

The clerk will contact the parties re this posting, which is deemed adequate notice.

Case Number: BC650580    Hearing Date: July 16, 2020    Dept: 73

7/16/2020

Dept. 73

Rafael Ongkeko, Judge presiding

VERGARA v. LOEB, et al. (BC650580) Click here to enter text.

Counsel for Plaintiff/moving party:  Fred Silberberg; Susan Allison, Lauren Babst (Jeffer Mangels Butler & Mitchell LLP)

Counsel for Defendant: Michael W. Caspino, Michael Weiler (Buchalter); Jalesia McQueen (McQueen Kuenzel, LLC)

Counsel for Defendant ART Reproductive Center, Inc.:  Paul Philips; Samantha Mirabello (Law Offices of Paul Philips, APLC)

PLAINTIFF’S Motion For Order to seal documents re Plaintiff’s motion for summary adjudication (filed 03/25/2020)

PLAINTIFF’S Motion For Order to seal documents re Plaintiff’s opposition to defendant’s motion for summary judgment (filed 04/22/2020)

PLAINTIFF’S application to file oversized brief (filed as ex parte application on 05/07/2020)

TENTATIVE RULING

The court grants the unopposed motions to seal.  It appears that on 4/22/2020 ART Reproductive Center, Inc. filed and served a Notice of Joinder to Plaintiff’s motion to seal, but does not identify which motion.

The court grants Plaintiff’s application to file oversized brief.  The court will hear argument regarding Loeb’s requests to ameliorate any prejudice as a result of the four extra pages, such as allowing Loeb to file an amended opposition should he wish to do so, thereby requiring the court to allow Plaintiff to file an amended reply.   The court excuses Plaintiff’s late-filed separate statement.

Whenever all the papers are finally in, the parties shall meet and confer and provide the court with an organized set of courtesy copies in binders of all papers by ___________________.

Discussion

Pending Motions

Motion 1:  Seal Documents re Plaintiff’s MSA

On March 20, 2020, Plaintiff filed a motion for summary adjudication (“Plaintiff’s MSA”).  In conjunction with that motion, on March 25, 2020, Plaintiff filed a motion to file the records supporting Plaintiff’s MSA under seal.  No party opposed.   

Motion 2:  Seal Documents re Plaintiff’s Opposition to Defendant’s MSJ

On March 20, 2020 Defendant Loeb filed a motion for summary judgment (“Defendant’s MSJ”).  On April 20, 2020 Plaintiff filed her opposition to Defendant’s MSJ.  In conjunction with that opposition, on April 22, 2020, Plaintiff filed a motion to file the records supporting Plaintiff’s opposition to Defendant’s MSJ under seal.  Defendant Loeb did not oppose the motion.  Defendant ART filed a joinder in the motion.

Motion (Application) 3:  Ex Parte Application to Allow Oversized Brief and Late Separate Statement

On May 7, 2020 Plaintiff filed an ex parte application asking the court to consider the four additional pages in Plaintiff’s MSA and to consider the separate statement in support of Plaintiff’s MSA, which was filed six minutes late.  On June 25, 2020 Defendant Loeb filed an opposition to the motion. 

ANALYSIS

Motions 1 and 2:  To Seal

A court may order a record sealed if it finds: (1) there exists an overriding interest outweighing the public's right of access; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to protect the overriding interest.  (See Cal. Rule of Court ("CRC") 2.550(d); see also Overstock.Com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal. App. 4th 471, 506-08.)

In both motions to seal, Plaintiff requests that the court seal documents containing deposition testimony, discovery responses and private identifying information about the parties, all of which has been designated confidential subject to the protective orders entered in this case and prior cases between the parties.  The court finds that the interests of the parties’ privacy overrides and outweighs the public’s right of access.  That overriding interest supports sealing, particularly given the sensitive and private nature of the records and given that Plaintiff narrowly tailored her requests to easily identified specific documents.  The motions to seal are granted. 

Motion 3:  Ex Parte Application

Plaintiff requests that the court consider the oversized brief for Plaintiff’s MSA and the separate statement for the Plaintiff’s MSA, which was filed six minutes late.

Defendant opposes, arguing that (1) Plaintiff did not comply with Cal. R. Ct. 3.1113 and (2) Defendant would suffer prejudice because Defendant already opposed Plaintiff’s MSA, so allowing an oversized brief after the discovery cut-off would prejudice “Defendant’s ability to conduct discovery on the additional arguments Plaintiff asserted.” 

The court finds that Plaintiff has justified the reasons for filing an oversized brief—i.e., Plaintiff’s counsel made a mistake in applying federal versus California law.    Defendant contends that Defendant suffered prejudice because Plaintiff requested that the court consider the oversized brief after Defendant filed his opposition.  The court will hear any reasonable request to ameliorate whatever Loeb believes is prejudicial as a consequence of this order.  For example, to the extent that Defendant did not address those extra four pages in Defendant’s original opposition, the court will allow the Defendant an additional opportunity to amend Defendant’s opposition by addressing those four additional pages only

Further, the court finds that Defendant’s receiving a separate statement six minutes late (at 12:06 a.m. versus midnight) does not prejudice Defendant.  Defendant offers no evidence that Defendant began working on the opposition at midnight that day and a six-minute delay severely prejudiced Defendant somehow.

The court, therefore, grants the application. 

Case Number: BC650580    Hearing Date: March 12, 2020    Dept: 73

3/12/20

Dept. 73

Rafael Ongkeko, Judge presiding

SOFIA VERGARA v. NICHOLAS LOEB, et al. (BC650580)

Counsel for plaintiff/opposing party: Fred Silberberg (Fred Silberberg P.C.); Susan Allison; Lauren Babst (JMBM LLP)

Counsel for defendant/moving party Nicholas Loeb: Michael Caspino; Michael Weiler (Buchalter APC); Jalesia McQueen (McQueen Kuenzel LLC)

Counsel for defendant/opposing party ART Reproductive Center, Inc.: Paul Philips (Philips, APLC)

DEFENDANT’S MOTION TO BE RELIEVED OF WAIVER OF OBJECTIONS UNDER CCP § 2031.300 (filed 2/7/20)

TENTATIVE RULING

Defendant’s motion to be relieved of waiver of discovery objections is DENIED.

Plaintiff’s request for $8,092 in monetary sanctions pursuant to Code of Civil Procedure section 2031.300 is DENIED.

Plaintiff’s request for monetary sanctions pursuant to Code of Civil Procedure section 1008 is DENIED.

Discussion

On February 7, 2020, Defendant filed this motion seeking relief from waiver of his objections to set 2 of Plaintiff’s Demand for Production of Documents (RFP2 for convenience) pursuant to CCP § 2031.300. Defendant argues that he has already served responses that are in substantial compliance with the Discovery Act and his failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect because Defendant had switched his counsel and the . Finally, Defendant also argues that relief from waiver is important because he seeks to object based on attorney-client privilege relating to money spent on Defendant’s alleged other children.

If a party to whom requests for production of documents are directed fails to serve a timely response, the party waives any objection to the interrogatories or requests for production of documents, including one based on privilege or on the protection for work product. (CCP § 2031.300.) However, a party may be relieved of that waiver if “(1) [t]he party has subsequently served a response that is in substantial compliance with [the Discovery Act]” and “(2) [t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Id., subd. (a).)

The Civil Discovery Act does not include a definition of “substantial compliance,” and few cases have addressed the circumstances under which a response will be deemed not in substantial compliance. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.) Substantial compliance means actual compliance with respect to the substance essential to every reasonable objective of the statute. (Id. at 790.) However, substantial compliance should not be understood as requiring actual compliance with every specific statutory requirement. (Ibid.)

A court may not find that only some portions of a document containing responses are code-compliant, but must instead determine whether the document as whole substantially complies. (Ibid. [this position is supported by the fact that there is an effective statutory vehicle to compel a responding party to cure unsatisfactory responses].)

The statutory language “mistake, inadvertence, or excusable neglect” in the discovery statute should be interpreted using the same general principles developed in application of the identical language in section 473, subdivision (b). (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275.) Although the party moving for relief under section 473 has the burden to show that the mistake, inadvertence, or neglect was excusable, any doubts as to that showing must be resolved in favor of the moving party. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)

Analysis

On May 10, 2019, Plaintiff mail-served RFP2 on Defendant’s previous counsel.

No responses were served before the due date of 6/14/19. After the court ruled on a discovery motion heard on 1/22/20, on 2/7/20, Defendant served supplemental responses to RFP 2. (Weiler Decl. Ex. 9.) A more detailed chronology is set forth below.

The parties dispute whether Defendant satisfies the two conditions for waiver: “(1) [t]he party has subsequently served a response that is in substantial compliance with [the Discovery Act]” and “(2) [t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2031.300, subd. (a).)

Whether Defendant’s responses substantially comply with the Discovery Act

The parties dispute whether Defendant’s responses substantially comply with the Discovery Act.

Defendant claims that his responses to RFP2 are in “substantial compliance.” (Motion 3:13, 7:10, 9:26.) In opposition, Plaintiff argues that Defendant’s responses are not in substantial compliance because his responses “still contain numerous meritless and boilerplate objections.” (Opposition 7:19-20.) In reply, Defendant argues that his responses are “substantial compliance” because Defendant has given everything he could produce. (Reply 2:13-17.)

The court examines Defendant’s responses to RFP2. (Weiler Decl. Ex. 9.) RFP 2 makes 23 demands. First and most importantly, Defendant’s responses are replete with boilerplate objections (e.g., “overly broad, unduly burdensome, irrelevant”) without explanation why they apply here. Additionally, to the extent Defendant seeks to assert valid (assuming not waived) objections based on attorney-client privilege, Defendant fails to include the requisite privilege log. (See Code Civ. Proc., § 2031.240, subd. (c)(1).) Facially deficient responses likely lead to a motion to compel further responses to the extent Defendant does not supplement his responses.

Defendant appears to produce or intends to produce additional documents including “credit card statements, bank statements, and utility statements.” (Weiler Decl. Ex. 9.) However, it is unclear whether Defendant actually produced documents in connection with his responses. Defendant does not refer to their volume (e.g., Bates stamp numbers) or otherwise state whether responses attached responsive documents. (See Weiler Decl. ¶¶ 20, 30.) The evidence regarding production is lacking.

Finally, Defendant’s reply fails to respond adequately to Plaintiff’s opposition arguing that his responses were not in substantial compliance. Defendant merely says he has given “everything he can produce…” and has complied by providing “responses within 15 days of the Hearing…” (Reply 2:13-17)

Defendant has the burden to satisfy the first condition for waiver of his objections. (Code Civ. Proc., § 2031.300, subd. (a).) Defendant fails to meet his burden.

The court denies Defendant’s motion for failing to satisfy the first required condition for waiver of his objections.

Whether Defendant’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect

Because the court denies Defendant’s motion for failing to satisfy the first required condition for waiver of his objections, the court does not need to address the second condition. Nevertheless, the court addresses the second condition.

In order to determine whether Defendant’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect entitled to relief from waiver, it is important to identify the timeline of the discovery request and response.

On 5/10/19, Plaintiff mail-served RFP2 on Defendant’s previous counsel.

On 6/6/19, Defendant’s current counsel substituted in for his previous counsel.

On 6/14/19, responses were due.

On 6/25/19, the parties’ counsel telephonically spoke about Plaintiff’s Request for Production, Set One and Set 2. (See Babst Decl. 10/04/2019[1] Ex. 19.) In that conversation, Plaintiff’s counsel informed Defendant’s counsel that his responses to Set 2 were overdue. “You will respond to same Tuesday, July 2. Any objections on this demand have been waived.” (Id.)

Defendant’s counsel claims that he was unaware of RFP2 until that phone call. (Weiler Decl. ¶¶ 9, 21.) On 6/25/19 Plaintiff’s counsel emailed Defendant’s counsel an electronic courtesy copy of RFP2. (Weiler Decl. Ex. 3.)

On 7/10/19, Defendant served responses to RFP2. (Weiler Decl. Ex. 4.)

On 8/13/19 Plaintiff’s counsel wrote a lengthy meet and confer letter addressing, among other things, RFP2, repeating that “all objections, including those based on privilege, were waived when Loeb failed to respond within the given statutory period.” (Babst decl., 10/4/19, Ex. 22)

On 8/14/19, the court (Judge Christopher Lui) conducted an informal discovery conference. The parties dispute whether the court ordered or the parties otherwise agreed that Defendant could maintain his objections in response to RFP2.

On 1/22/20 this court ordered Defendant to provide verified, code-compliant further responses to RFP 2 without objections. (Weiler Decl. Ex. 8.)

On 2/7/20, Defendant served supplemental responses to RFP2. (Weiler Decl. Ex. 9.)

Defendant maintains that change in counsel eight days before the responses were due and RFP2’s not even within counsel’s knowledge or possession caused the blown deadline. Defendant’s current counsel might have been ignorant of RFP2, but previous counsel could not have been and there is no evidence of that. Defendant’s counsel fails to state in his declaration the actions he took to assess any discovery obligations and deadlines or any events that support a justification for not knowing about RFP2. The court does not find Defendant’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect from the mere timing of counsel’s substitution into the case.

Nevertheless, even if Defendant’s failure to serve a timely response by the original 6/14/19 deadline was the result of mistake, inadvertence, or excusable neglect, the court finds that Defendant should be estopped from making this argument because Defendant inexcusably delayed in filing this motion seeking relief until approximately seven months later. The record reflects that current defense counsel was aware of RFP2 and Plaintiff’s insistence on waiver, at least as early as 6/25/19. More importantly, Plaintiff’s counsel specifically stated a deadline for the response, which Defendant missed by eight days without apparent excuse. Defendant was aware of the need to move for relief from waiver as early as 6/25/19. The record reflects that Plaintiff again reminded Defendant of his inappropriate objections on later dates, including for example on July 18, 2019 and August 13, 2019. (Babst Decl. 10/04/2019 Ex. 21, 22.) To conclude that Plaintiff relinquished such position the next day at the IDC is not reasonable without solid evidence.

Defendant made an active choice not to move for relief from waiver until he received an unfavorable ruling on 1/22/20. Defendant is unable to justify as excusable his long delay in filing this motion. Additionally, there is nothing in the record supporting Defendant’s claim that Plaintiff or the court agreed to allow Defendant to include objections in his response to RFP 2. After all, the discovery conference with Judge Lui was informal. Defendant’s counsel’s self-serving declaration unsupported by any records is insufficient and is disputed by Plaintiff in any event. (Compare Weiler Decl. ¶13 and Babst Decl. ¶2)

Defendant’s additional arguments in reply are also insufficient. Defendant’s insistence that he would not have served supplemental responses with objections if they were not permitted is self-serving and not helpful as solid evidence. (Reply 2:2-3.) Plaintiff’s willingness to discuss Defendant’s meritless objections does not otherwise demonstrate that Plaintiff agreed to waive its long-expressed claim of waiver. (Id. 2:7-12.)

Defendant’s additional arguments: the objections are important and the documents sought are irrelevant

The court rejects Defendant’s argument that the court should grant relief from waiver because of the importance of the objections. (See motion 9:3-16.) Defendant fails to satisfy the conditions required by the Discovery Act for relief from waiver. The court finds no reason to consider this policy argument, especially considering Defendant fails to cite any supporting authority why the court should do so here.

The court rejects Defendant’s argument that the court should grant relief from waiver because the documents sought are irrelevant. (See motion 9:17-23.) Defendant fails to satisfy the conditions required by the Discovery Act for relief from waiver. The Discovery Act does not otherwise allow for relief from waiver of objections because the documents are “irrelevant.”

Monetary sanctions

Plaintiff requests $8,092 in monetary sanctions for two separate reasons.

First, Plaintiff requests monetary sanctions because Defendant has willfully refused to comply with the court’s 1/22/20 order ordering Defendant to provide responses to RFP2 without objections. As a preliminary matter, the court rejects Plaintiff’s reliance on Code of Civil Procedure section 2031.300. (Opposition 10:6-12.) This is a motion for relief from waiver, not a motion (or opposition to a motion) to compel a response to demand for inspection. (Code Civ. Proc., § 2031.300, subd. (c).) The court does have authority to impose a monetary sanction based on Defendant’s failure to obey a court order. (Id., §§2023.010, subd. (g), 2023.030, subd. (a).) However, the court finds the imposition of monetary sanctions is inappropriate because Defendant acted with substantial justification and/or the imposition of a sanction is unjust. The court’s order did not preclude this motion. The court finds that Defendant is exercising his right to make this motion and not disobey a court order.

Second, Plaintiff requests unspecified[2] monetary sanctions because the court should treat Defendant’s unsuccessful motion as an unsuccessful motion for reconsideration pursuant to Code of Civil Procedure section 1008. This is not a reconsideration motion and the court declines to adopt Plaintiff’s liberal interpretation of the controlling authority that Defendant here seeks to reconsider the January 22, 2020 order, which denied Defendant’s oral request for relief from waiver of objections primarily because Defendant did not file a noticed motion. (Weiler Decl. Ex. 8.) The court does not otherwise find Defendant’s conduct merits sanctions under Code of Civil Procedure section 128.7. (CCP § 1008, subd. (d).)

Unless waived, notice of ruling by Plaintiff.


[1] The court notes that Plaintiff did not file the exhibits as part of this motion “for the sake of brevity.” (Opposition 3-4 fn. 1.) Nevertheless, Defendant fails to object on this basis and the court can take judicial notice of documents already filed with the court.

[2] Although Plaintiff does not specify the amount of monetary sanctions, Plaintiff’s opposition appears to argue this justification as an alternative basis to award Plaintiff’s earlier request for $8,092 in monetary sanctions. (See opposition 11:3-5, 12:6-8.)

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