Judge: Stephen I. Goorvitch, Case: 20STCV21752, Date: 2022-10-18 Tentative Ruling

Case Number: 20STCV21752    Hearing Date: October 18, 2022    Dept: 39

Nicholas Loeb v. ART Reproductive Center, Inc.

Case No. 20STCV21752

Order #1 of 2

[TENTATIVE] Orders

Plaintiff’s Motions in Limine

            The Court rules as follows on Plaintiff’s motions in limine:

            A.        Procedural History

Plaintiff filed this action against Defendant on June 9, 2020, and asserted four causes of action in the first amended complaint: (1) professional negligence, (2) negligence/negligence per se, (3) fraud (misrepresentation), and (4) fraud (concealment).  Defendant demurred to the second, third, and fourth causes of action and moved to strike the prayer for punitive damages.  On April 14, 2021, the Court sustained the demurrer to the second cause of action without leave to amend, and sustained the demurrer to the third and fourth causes of action with leave to amend.  The Court also granted the motion to strike the prayer for punitive damages with leave to amend.  Plaintiff elected not to file a second amended complaint, so the case will proceed to trial solely on a claim for professional negligence.  According to Defendant, Plaintiff has waived any claim for non-economic damages “relating to not being able to have a relationship with these unborn children.”  Instead, Plaintiff seeks “attorney’s fees . . . resulting from the expensive and protracted litigation [with Sofia Vergara].”  (Plaintiff’s Memorandum of Points & Authorities in Opposition to Defendant’s Motion to Compel, p. 3:12-14.)  Plaintiff also seeks non-economic damages resulting from his litigation with Sofia Vergara.     

Plaintiff’s professional negligence claim is based on Defendant’s alleged failure to comply with Health and Safety Code section 125315, which requires a “health care provider delivering fertility treatment” to provide “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.”  (Health & Safety Code, § 125315, subd. (a).)  Specifically, Plaintiff alleges that Defendant should have presented him “with the option of storing any unused embryos, donating them to another individual, discarding the embryos, or donating the remaining embryos for research.”  (Health & Safety Code, § 125315, subd. (b).)  Plaintiff alleges that Defendant was negligent in not providing “a form . . . that sets forth advanced written directives regarding the disposition of embryos.”  (Health & Safety Code, § 125315, subd. (b).)

            B.        Plaintiff’s Motion in Limine #1 – DENIED

            Plaintiff seeks to preclude evidence and argument disputing the applicability of Health and Safety Code section 125315 to this case.  Plaintiff argues that the District Court of Appeal, Second District, Division Five recently resolved the underlying case between Sofia Vergara and Plaintiff, and as a result, this court must grant “a directed verdict for the Plaintiff and let the jury decide the damages.”  (Plaintiff’s Motion in Limine #1, p. 8:14-15.)  Plaintiff’s counsel is incorrect.  Effectively, Plaintiff seeks summary judgment on the issue of liability based upon the Second District’s opinion, which is improper by way of motion in limine.  The motion is denied on that basis alone.  In the alternative, the Court denies the motion on the merits.  The Court interprets the statute’s use of the term “separation” to apply broadly to all couples, and not just couples who are married or in domestic partnerships.  Regardless, Defendant is entitled to argue that there was no causation (as discussed in the ruling on Plaintiff’s Motion in Limine #2) or that it complied with the statute (as discussed in the ruling on Plaintiff’s Motion in Limine #3).  Therefore, Plaintiff’s Motion in Limine #1 is DENIED. 

C.        MIL #2 – To preclude the testimony of Sofia Vergara – DENIED

            To establish professional negligence, Plaintiff must prove the following: (1) Defendant had a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) Defendant breached the duty; (3) There is a causal connection between the negligent conduct and the resulting injury; and (4) There was actual loss or damage resulting from the professional negligence.  (Nicholas v. Keller (1993) 15 Cal.App.4th 1672, 1682.)  Causation requires proof that the defendant’s conduct was a “substantial factor” in bringing about the harm.  (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132, citations omitted.)  “Professional negligence need not be established as the sole cause of the client’s loss, but the plaintiff must show by the evidence presented that a result was more likely than not caused by a wrongful act or omission.”  (Ibid., citations omitted.)    

            Plaintiff’s theory is that the absence of an advanced directive concerning the disposition of the embryos resulted in litigation between Sofia Vergara and Plaintiff, resulting in Plaintiff having incurred legal fees and related expenses.  Therefore, Defendant is entitled to call Ms. Vergara to dispute Plaintiff’s theory of causation.  Specifically, Defendant is entitled to call Ms. Vergara to testify that “both partners were in agreement that the unborn embryos should be disposed of in the event of a separation or death of one of the partners.”  (Defendant’s Memorandum of Points and Authorities in Opposition to Plaintiff’s Motion in Limine #2, p. 1:17-18.)  Defendant may call Ms. Vergara to testify about any oral agreement, and to testify that Defendant signed the written directive agreeing that neither party would use the embryos to create a child without the written permission of the other.  Defendant also may call Ms. Vergara to testify why she sued Plaintiff, forcing him to incur legal expenses. 

            Based upon the foregoing, the Court denies Plaintiff’s motion in limine.  The testimony is probative because the jury may conclude that the failure to comply with the terms of section 125315 did not cause Plaintiff’s injuries because there was, in fact, an agreement between the parties and a directive on file with Defendant.  The testimony is probative because the jury may reasonably conclude that this litigation stemmed not from Defendant’s failure to provide an advance directive form, but rather from Plaintiff’s efforts to access the embryos, in violation of his agreement with Ms. Vergara.  The Court finds no undue prejudice, per Evidence Code section 352.  The mere fact that Ms. Vergara is a celebrity is not a basis to exclude her testimony.  Plaintiff’s counsel argues that the proffered testimony is inadmissible hearsay.  Plaintiff’s counsel is incorrect.  Evidence of an agreement is not hearsay.  (See, e.g., J & A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 18-19, citations omitted.)           

            Based upon the foregoing, Plaintiff’s Motion in Limine #2 is DENIED.  However, Defendant’s counsel should be prepared to discuss whether Defendant intends to file a motion for summary adjudication on the issue of causation so the Court may set a hearing date. 

            3.         MIL #3 – To preclude the testimony of Defendant’s medical expert – GRANTED IN PART; DENIED IN PART

            Plaintiff seeks to preclude the testimony of Defendant’s medical expert, Dr. Charles March, M.D., who purportedly will testify that “the custom and practice in the IVF community was that the (mandatory) provisions of [Health and Safety Code section 125315] were not followed.”  (Plaintiff’s Memorandum of Points & Authorities in Support of Motion in Limine #1, p. 2:12-15.)  Section 125315 establishes the standard of care for the instant case.  “Under the doctrine of negligence per se, compliance with the standard of conduct established by the relevant statute, ordinance, or regulation is adopted as the duty of care.”  (Jones v. Award (2019) 39 Cal.App.5th 1200, 1210, citation omitted.)  “This creates a rebuttal presumption of negligence where the statute, ordinance or regulation is violated.”  (Ibid., citation omitted.) 

Defendant cannot call an expert to testify that the standard of care should be different.  (See N.N.V. v. American Assn. of Blood Banks (1995) 75 Cal.App.4th 1358, 1385.)  Therefore, the Court grants Plaintiff’s motion with respect to any testimony suggesting that the standard of care is, or should be different.  Nevertheless, the Court denies the motion with respect to any testimony that IVF providers comply with the purpose of this statute in different ways, and that Defendant’s advance directive form satisfies the standard of care. 

Order #2 of 2

[TENTATIVE] Orders

Defendant’s Motions in Limine

A.        MIL #1 – To preclude Plaintiff from referring to any past, present, or future claims or accusations against Defendant (Unopposed) – GRANTED

B.        MIL #2 – To preclude Plaintiff from referencing the fact that Defendant has professional liability insurance (Unopposed) – GRANTED

            C.        MIL #3 – To preclude Plaintiff from referencing the effect of Civil Code sections 3333.1 and 3333.2, as well as Code of Civil Procedure section 667.7 (Unopposed) – GRANTED

            D.        MIL #4 – To preclude Plaintiff from offering rebuttal testimony on a matter that should properly be anticipated in the case-in-chief or expert testimony (Opposed) – The Court will address this issue during trial if necessary.

            E.         MIL #5 – To limit testimony of Plaintiff’s expert witnesses to those opinions and conclusions expressed during their depositions (Opposed) – The Court will address this issue during trial if necessary and directs the parties’ attention to Kennemur v. State of California (1982) 133 Cal.App.3d 907.

            F.         MIL #6 – To preclude Plaintiff from introducing any evidence, asserting any contentions of negligence or claims of damages not identified in response to written discovery – (Opposed) – The Court will address this issue during trial if necessary.

            G.        MIL #7 – Motion in limine to bifurcate trial – DENIED WITHOUT PREJUDICE

            Defendant argues issues of causation, i.e., whether Penal Code section 367(g) bars this litigation and whether the failureto provide the form required by section 125315 was the reason for Plaintiff’s litigation with Ms. Vergara.  However, these issues are better addressed by a motion for summary judgment, not bifurcation.  Therefore, the Court’s tentative is to deny this motion without prejudice to revisiting the issue of bifurcation at a later stage. 

            H.        MIL #8 – To preclude Plaintiff’s counsel from referencing the jurors’ or community interest, including but not limited to the “Golden Rule” and the “Reptile Theory” (Opposed) – GRANTED IN PART; DENIED IN PART.

            The Court grants Defendant’s motion in limine to preclude arguments referencing jurors’ or the community interest, including but not limited to the “Golden Rule” and the “Reptile Theory.”  The motion is granted in this respect. 

            Plaintiff suggests that he should be able to reference his religious beliefs during trial. Plaintiff has waived non-economic damages with respect to “not being able to have a relationship with these unborn children.”  Plaintiff has further stipulated that “[his] claims for Emotional Distress in this case are limited to the emotional distress caused by the litigation with Sofia Vergara.”  Plaintiff may testify about his own religious beliefs in this context.

            Based upon the foregoing, the motion is granted in part and denied in part.  Plaintiff may testify about his own religious beliefs in the context of his claim for non-economic damages, and Plaintiff’s counsel may reference them in closing to argue why his client is entitled to certain damages.  Plaintiff’s counsel may not use this evidence to argue public policy considerations

            I.          MIL #9 – To preclude lay witnesses from testifying as to the standard of care and damages – GRANTED

            J.          MIL #10 – To exclude evidence of Plaintiff’s attorney’s fees – GRANTED IN PART; DENIED IN PART

            The Court grants Defendant’s motion in that Plaintiff may not reference the amount of attorney’s fees spent on this case.  The motion is denied with respect to his litigation with Sofia Vergara, since those are the attorney’s fees he seeks to recover as a result of Defendant’s alleged failure to comply with section 125315. 

            K.        MIL #11 – To exclude irrelevant evidence based upon Plaintiff’s stipulation

            Plaintiff has stipulated that he waives non-economic damages with respect to “not being able to have a relationship with these unborn children.”  Plaintiff has further stipulated that “[his] claims for Emotional Distress in this case are limited to the emotional distress caused by the litigation with Sofia Vergara.”  The Court grants this stipulation.  The Court will address this issue during trial if necessary. 

            L.         MIL #12 – To exclude evidence of future speculative damages – The Court will address this issue during trial if necessary.