“Modern Family” star Sofia Vergara wants the judge in her frozen-embryo battle tossed off the case as she tries to stop ex-lover Nick Loeb from creating kids without her written consent.
In court papers filed, lawyer Fred Silberberg alleges that Los Angeles Superior Court Judge William Fahey is prejudiced and that the “Modern Family” actress believes she cannot get a fair hearing or trial before him.
Under the Code of Civil Procedure section cited by Silberberg, he does not need to elaborate further.
The papers trying to oust the judge from the case were filed Thursday.
Vergara’s suit was filed Feb. 14. She wants Loeb stopped from using the frozen pre-embryos that they created at the ART Reproductive Center in Beverly Hills while still together back in 2013 unless he first obtains her consent.
Vergara, 44, wants a court to declare that any attempts by Loeb, 41, to bring the pre-embryos to term is a breach of their original contract and that he should be permanently enjoined from doing so.
Loeb’s lawyers, meanwhile, want a judge to dismiss Vergara’s causes of action for declaratory relief, injunctive relief, breach of contract, fraud and that she relied to her detriment on his promises.
The lawyers maintain the claims are barred on technical grounds under what is known as the Code of Civil Procedure’s compulsory cross-claims statute, meaning she should have brought those allegations in a previous lawsuit Loeb filed against her.
“The purpose of this law is to prevent piecemeal litigation,” Loeb’s attorneys state in their court papers, which say Loeb’s claims in his lawsuit and those of Vergara in her complaint are “nearly identical.”
Some of the claims also are barred by a privilege that allows Loeb to take certain actions in the pursuit of litigation, according to his lawyers’ court papers.
A hearing on Loeb’s motion is scheduled for May 11 before Fahey, but if the judge agrees to step down, a new date would have to be set before another judge.
Vergara and Loeb ended their engagement in May 2014 and the actress married actor Joe Manganiello in November 2015.
— City News Service