A judge ruled Tuesday that Sofia Vergara can have a jury decide her breach-of-contract lawsuit dealing with the 2013 agreement the “Modern Family” actress signed with her former fiance to create two frozen pre-embryos and his alleged attempts to take control of them without her consent.
Adopting a tentative ruling he issued Monday , Los Angeles Superior Court Judge Rafael Ongkeko denied Nick Loeb’s motion to dismiss Vergara’s case, finding there were triable issues.
“To me it wasn’t really a close call,” Ongkeko said after hearing arguments.
Ongkeko said he was not ready to rule yet on a separate motion brought by Vergara asking that some of her claims be deemed proven without the necessity of a trial, including her request for an injunction preventing Loeb from trying to seek unilateral control of the embryos without Vergara’s written consent.
Loeb’s attorney, Jalesia McQueen, said she will have additional information by Friday to support her client’s claim that he signed the agreement over the embryos under duress.
The judge said that he will take Vergara’s motion under submission once he receives the additional information from McQueen.
In addition to the lawsuit in Los Angeles, Loeb sued Vergara in Louisiana for control of the two embryos, which were created at the ART Reproductive Center in Beverly Hills in 2013 when they were a couple and were trying to have a child via surrogate.
Loeb’s latest case in Louisiana was dismissed in October 2019, but is on appeal.
In the Los Angeles case, the 48-year-old actress sued Loeb, 45, in February 2016, seeking a court order declaring that any attempts by him to bring the pre-embryos to term is a breach of their original contract.
Among other things, the contract provides that one party cannot use the “cryopreserved material” to create a child without the written consent of the other person.
Loeb’s lawyers maintained in their court papers that the contract is a “form directive” that is void and against public policy because it does not comply with California law because it does not include a provision for what happens in the event of a divorce or separation. Vergara and Loeb ended their relationship in May 2014.
McQueen argued that the form directive did not give the parties a choice and dictated to them what should happen. She said the case represents a new area of law and that her client was not trying to argue who should get the embryos.
But Ongkeko replied that Loeb has “a very difficult task at hand” in trying to disprove the validity of the agreement.
“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,” Ongkeko wrote.
In his duress argument, Loeb testified in his deposition that Vergara berated him the day of signing by being “loud,” “intense,” “bossy,” “pushy” and “irritable,” and that he was “very embarrassed and humiliated” by “being put down” in front of people.
Loeb also testified he did not want to get “yelled and screamed at, you know, by her. And so I just — I signed it,” according to Ongkeko’s ruling.
Vergara’s lead attorney, Fred Silberberg, said that despite what Loeb said in his deposition, he provided no evidence he was under duress when he signed the agreement with Vergara. He said Loeb and the actress had gone through a “prior round of (in vitro fertilization), so it wasn’t as if Mr. Loeb was in some unfamiliar situation.”
McQueen replied that there was a “pattern of physical and emotional abuse” in the former couple’s relationship and that Vergara’s lawyers had not bothered to interview witnesses who would support that claim. However, Silberberg responded that it was up to Loeb’s attorneys to provide declarations from those witnesses.
The embryos were placed in cryogenic storage at ART’s facilities and remain there.
The actress, who has an adult son, married actor Joe Manganiello in November 2015.
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