Judge: Stephen I. Goorvitch, Case: 20STCV21752, Date: 2023-04-24 Tentative Ruling

Case Number: 20STCV21752    Hearing Date: April 24, 2023    Dept: 39

Nicholas Loeb v. ART Reproductive Center, Inc.

Case No. 20STCV21752

Motion for Summary Judgment

INTRODUCTION

            Plaintiff Nicholas Loeb (“Plaintiff”) filed this medical/professional negligence action against ART Reproductive Center, Inc. (“Defendant”).  Plaintiff and his then-fiancée, Sofia Vergara, froze several embryos through Defendant.  Plaintiff and Vegara separated, following which they have been involved in litigation over the disposition of the pre-embryos.  Prior to the treatment, Plaintiff and Ms. Vergara executed a form directive stating that neither could use the embryos to create a child without the written consent of the other.  Moreover, Penal Code section 367g(b) prohibits one partner from using the embryos without the written consent of the other.  Nevertheless, Plaintiff filed multiple lawsuits against Vergara in an effort to use the pre-embryos to create children, in response to which Vergara filed her own lawsuit seeking injunctive relief to prevent Plaintiff from doing so, as well as damages.  Now, Plaintiff asserts a professional negligence claim against Defendant, arguing that it failed to comply with Health and Safety Code section 125315, which requires fertility treatment facilities to use a form that lists different options in the event of separation.  Plaintiff alleges that Defendant’s failure to use the correct form—and not his repeated efforts to violate the form directive and Penal Code section 367g(b)—caused him to “incur[] substantial litigation costs trying to preserve the lives that he participated in creating.”  (Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, p. 2:25-26.)  Plaintiff also alleges that he suffered emotional distress damages from the litigation with Vergara (which he started).  Defendant moves for summary judgment, which Plaintiff opposes.  The motion is granted because Plaintiff cannot demonstrate that Defendant’s lack of compliance with section 125315 caused his damages. 

BACKGROUND

            A.        The Parties’ Relationship

            Plaintiff was involved in a romantic relationship with Ms. Sofia Vergara, and they decided to create and freeze embryos using Plaintiff’s sperm and Ms. Vergara’s ova.  (First Amended Complaint, ¶¶ 8-12.)  In Spring 2013, Plaintiff and Ms. Vergara underwent their first round of in vitro fertilization (“IVF”) with Defendant.  (Id., ¶ 12.)  In November 2013, Plaintiff and Ms. Vergara were prepared to undergo the IVF procedure for the second time.  (Id., ¶ 15.)  Plaintiff and Ms. Vergara separated without having any children.  (First Amended Complaint, ¶ 19.)  Vergara has never provided consent to Plaintiff for use of the embryos.  (Request for Judicial Notice, Exh. #1, p. 4.) 

            B.        The Form Directive   

            Prior to the treatments, Plaintiff and Vergara executed a document entitled “Directive for Partners Regarding Storage and Disposition of Cryopreserved Material Which May Include Embryos.”  (Request for Judicial Notice, Exh. #1, p. 3.)  This form directive provided that the “purpose of this document is to declare our intentions and desires with respect to the storage, use and disposition of our cryopreserved material which may include embryos which are created by and stored at the [clinic.]”  Ibid.)  The form directive stated: “Any and all changes to [this Form Directive] must be mutually agreed to between both partners.  One person cannot use the [c]ryopreserved [m]aterial to create a child . . . without the express written consent of the other person . . . .  All changes must be in writing and signed by both parties.  Unilateral changes cannot be honored by the [clinic].”  (Id., pp. 3-4.) 

            C.        Penal Code section 367g(b)

            Penal Code section 367g(b) states: “It shall be unlawful for anyone to knowingly implant . . . embryos through the use of assisted reproduction technology into a recipient who is not the . . . embryo provider, without the signed written consent of the . . . embryo provider and recipient.”

            D.        Health and Safety Code section 125315

            Health and Safety Code section 125315 states that a fertility treatment provider “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.”  (Health & Saf. Code, § 125315(a).)  The statute states that the provider shall use a form that “sets forth advanced written directives concerning the disposition of embryos.”  (Health & Saf. Code, § 125315(b).)  In the event of separation or divorce, the form shall give the couple the option of disposing the embryos as follows: (1) Made available to the female partner; (2) Made available to the male partner; (c) Donation for research purposes; (4) Thawed with no further action; (5) Donation to another couple or individual; and (6) Other disposition that is clearly stated on the form.  (Health & Saf. Code, § 125315(b)(3).) 

PROCEDURAL HISTORY

A.        Plaintiff’s Lawsuit against Vergara – Santa Monica Action

            On August 29, 2014, Plaintiff filed an action against Vergara and Defendant in the Los Angeles County Superior Court, Santa Monica Courthouse, asserting causes of action for declaratory relief.  (Request for Judicial Notice, Exh. #1, p. 4.)  In his prayer for relief, Plaintiff sought a declaration that: (1) He had a right to possession and custody of the pre-embryos to use them to create children; (2) Vergara was estopped from preventing him from implanting the pre-embryos into a surrogate; (3) The form directive was void and unenforceable; (4) The form directive was unconscionable; (5) The form directive was subject to recission because Plaintiff signed it under duress; and (6) Vergara was merely an egg donor with no parental or financial obligations to the children.  (Id., pp. 4-5.)  On December 6, 2016, on the eve of a hearing on Vergara’s motion for sanctions based upon discovery violations and for summary judgment/adjudication, Plaintiff voluntarily dismissed the Santa Monica action without prejudice.  (Id., p. 5.)  The trial court entered a judgment in favor of Vergara that included a costs award.  (Ibid.)

            B.        Plaintiff’s Lawsuit against Vergara – Louisiana Action I

            On November 30, 2016, Plaintiff created a trust for the future benefit of two unborn daughters who were in “a cryopreserved embryonic state” at Defendant’s facility.  (Ibid.)  Plaintiff filed a lawsuit in state court in Louisiana on behalf of the pre-embryos and sought the same relief as the Santa Monica action, including granting Plaintiff control over the pre-embryos and terminating Vergara’s rights.  (Id., p. 6.)  Vergara removed the lawsuit to federal court, which then dismissed the case due to lack of personal jurisdiction over Vergara.  (Ibid.)

C.        Vergara’s Action against Plaintiff – Vergara’s Case

            On February 14, 2017, before the Santa Monica action and Louisiana Action I were dismissed, Vergara filed a lawsuit against Plaintiff.  Vergara sought declaratory and injunctive relief to prevent Plaintiff “from engaging in any future attempt to use the pre-embryos without her written consent.”  (Id., p. 7.)  Vergara also sought monetary damages.  On January 28, 2021, the trial court (Ongkeko, J.) granted summary adjudication to Vergara ruling: (1) The form directive is a valid and enforceable contract; (2) The form directive is not void or voidable based on a duress defense as to its execution; (3) There is no triable issue of material fact supporting Loeb’s defense that he had an enforceable oral agreement with Vergara authorizing him to implant the pre-embryos in a surrogate to be born.  (Id., pp. 9-10.)  The trial court found that Plaintiff had breached the form directive by filing and pursuing the action in Louisiana.  (Id., p. 10.)  The trial court also permanently enjoined Plaintiff from using the pre-embryos to create a child without Vergara’s express written consent.  (Ibid.)  The District Court of Appeal, Second District, Division Five, affirmed the trial court’s order.  (Id., p. 35.) 

            D.        Plaintiff’s Action against Vergara – Louisiana Action II

            On January 9, 2018, Plaintiff filed a petition on behalf of himself and the pre-embryos in Louisiana against Vergara “seeking custody of the pre-embryos pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as codified in Louisiana.”  (Id., p. 8.)  Plaintiff’s petition alleged that he should be granted full custody of the pre-embryos because Vergara violated her “high duty of care and prudent administration owed to the pre-embryos by refusing to allow them to be born.”  (Ibid.)  The Court of Appeal of Louisiana held that the UCCJEA did not apply to pre-embryos or unborn children, and that the trial court correctly dismissed the case for lack of subject matter jurisdiction, lack of personal jurisdiction over the parties, and for improper venue.  (Ibid.) 

            E.         The Instant Action

            Plaintiff filed this action against Defendant on June 9, 2020, and filed a first amended complaint on November 12, 2020.  The first amended complaint asserted four causes of action: (1) Medical/professional negligence, (2) Negligence/negligence per se, (3) Fraud based upon misrepresentation, and (4) Fraud based upon concealment.  Defendant filed a demurrer and motion to strike, and the Court held a hearing on April 14, 2021.  Following the hearing, the Court sustained the demurrer to the second cause of action without leave to amend, finding that “[t]his is a professional negligence claim” because “Plaintiff concedes that Defendant is a medical provider.”  (Court’s Minute Order, dated April 14, 2021, p. 4.)  The Court sustained the demurrer to the fraud claims with leave to amend and ordered Plaintiff to file a second amended complaint within 25 days.  Plaintiff failed to do so.  Therefore, the only remaining cause of action is one for medical/professional negligence.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he 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.”  (Ibid.)  

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”  (Code Civ. Proc., § 437c, subd. (f)(1).) 

EVIDENTIARY ISSUES

            Defendant requests that the Court take judicial notice of an opinion from the District Court of Appeal, Second District, Division Five, in a related case: Sofia Vergara v. Nicholas Loeb, Case No. B313234.  The Court grants the request under Evidence Code section 452(d).  Plaintiff argues that this is an unpublished opinion.  However, California Rules of Court, rule 8.1115(b) this Court may rely on this opinion for the underlying facts and resolution of certain legal issues, as they are relevant to the doctrine of law of the case and collateral estoppel.  The Court denies the remainder of Defendant’s request for judicial notice as moot. 

            Plaintiff requests that the Court take judicial notice of a stipulation stating that Plaintiff’s claim for emotional distress in this case is limited to the litigation with Sofia Vergara, and not any claim of “not being able to have a relationship with these unborn children.”  The Court grants this request under Evidence Code section 452(d). 

DISCUSSION

            The elements of a professional negligence claim are as follows: (1) Defendant was a professional who had a duty to use such skill, prudence and diligence that other members of the profession commonly possess and exercise; (2) Defendant breached that duty; (3) There is a casual connection between Defendant’s allegedly negligent conduct and the resulting injuries; and (4) There were actual losses or damages resulting from the professional negligence.  (See, e.g., Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137.)  Plaintiff’s theory is as follows: (1) Health and Safety Code section 125315 required Defendant’s form to delineate what would happen to the pre-embryos in the event of separation; (2) Defendant’s form failed to do so; (3) As a result of this omission, Plaintiff was forced to file the Santa Monica action and the Louisiana I action against Vergara; (4) In response, Vergara filed her own action against Plaintiff to prevent him from doing so; and (5) As a result, Plaintiff suffered financial and emotional damages. 

            Defendant argues that there is no causal connection between its failure to comply with section 125315 and Plaintiff’s litigation with Vergara.  The Court agrees.  Plaintiff argues that he would not have created the pre-embryos had he known that they would not be brought to life in the event of a separation, necessitating the underlying litigation.  In fact, the underlying litigation was not based upon any failure to comply with section 125315 or his decision to create the pre-embryos.  Rather, Plaintiff filed several cases against Vergara in an effort to take control of the pre-embryos and implant them into a surrogate in the absence of Vergara’s written consent.  Doing so would have violated the form directive—which Judge Ongkeko and the Court of Appeal found was valid—and Penal Code section 367g(b). Vergara’s lawsuit against Plaintiff was in direct response to these efforts.  Accordingly, Plaintiff’s damages stemmed from his own conduct, and not from any negligence of Defendant. 

            In order to establish causation, Plaintiff would have to establish that he filed the underlying litigation in order to achieve the same outcome that would have been achieved had Defendant complied with section 125315.  Essentially, Plaintiff would have to establish that had Defendant complied with section 125315, Vergara would have agreed that the pre-embryos should have been “[m]ade available to the male partner,” and he would have been free to implant the embryos in a surrogate, which is the outcome he sought in litigation.  Plaintiff cannot do so for two reasons.  First, Judge Ongkeko has already found that “there is no triable issue of material fact supporting [Plaintiff’s] defense that he had an enforceable oral agreement with Vergara authorizing him to implant the pre-embryos in a surrogate to be born.”  (Request for Judicial Notice, Exh. #1, p. 10.)  In other words, there is no evidence Vergara would have agreed to give Plaintiff the pre-embryos if asked.  Second, even if Vergara had agreed to do so, both the form directive and Penal Code section 367g(b) still required her written consent before Plaintiff implanted the embryos.  It is undisputed that she will not consent.  Compliance with section 125315 does not alleviate Plaintiff from the responsibility of obtaining Vergara’s written consent before implanting the pre-embryos.    

In the alternative, the Court finds that there is no proximate causation based upon public policy considerations.  “To simply say, however, that the defendant’s conduct was a necessary antecedent of the injury does not resolve the question of whether the defendant should be liable. . . . [T]he law must impose limitations on liability other than simple causality.  These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.”  (See PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315-316.)  Plaintiff seeks to recover damages stemming from litigation that he filed and defended in violation of law, viz., Penal Code section 367g(b).  Plaintiff may not recover damages for litigation seeking to violate the law. 

            The Court has considered Plaintiff’s remaining arguments and finds none to be persuasive.  Therefore, the Court grants Defendant’s motion for summary judgment.

CONCLUSION AND ORDER

            The Court orders as follows:

            1.         The Court grants Defendant’s motion for summary judgment.

            2.         Defendant may lodge a proposed judgment if necessary.

            3.         Defendant’s counsel shall provide notice and file proof of such with the Court.