Vergara v. Loeb CA2/5 ( 2022 )

Filed 9/22/22 Vergara v. Loeb CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
SOFIA VERGARA, B313234
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC650580)
v.
NICHOLAS LOEB,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rafael A. Ongkeko, Judge. Affirmed.
Merritt J. McKeon for Defendant and Appellant.
Fred Silberberg Family Law and Fred Silberberg; Jeffer
Mangels Butler & Mitchell and Susan Allison for Plaintiff and
Respondent.
——————————
Defendant Nicholas Loeb appeals from the judgment in
favor of plaintiff Sofia Vergara, following an order granting
Vergara’s motion for summary adjudication under Code of Civil
Procedure section 437c, subdivision (f).1 After a de novo review of
the evidence and legal arguments relevant to the defenses Loeb
asserted against Vergara’s claims for declaratory relief and
preliminary injunction, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We begin with a review of the undisputed facts and
relevant procedural history of prior and current litigation
between Loeb and Vergara.
A. The Parties’ Relationship and the Form Directive
In 2013, Vergara and Loeb underwent in vitro fertilization
(IVF) treatments at a fertility clinic in California (the clinic),
which resulted in the creation of two pre-embryos (the pre-
embryos) that were then cryopreserved at the clinic.2
1All further statutory references are to the Code of Civil
Procedure, unless otherwise stated.
2 We adopt the terminology used in Loeb v. Vergara (2021)
313 So.3d 346. “ ‘Generally, the procedure for IVF starts with the
woman’s ovaries being hormonally stimulated so that the woman
can produce multiple eggs. The eggs that the woman produces
are then removed by either ultrasound-directed needle aspiration
or laparoscopy, and the eggs are then put into a glass petri dish
where the eggs are introduced to sperm. After the egg is
2
Prior to the treatments, Loeb and Vergara executed a
document entitled “Directive for Partners Regarding Storage and
Disposition of Cryopreserved Material Which May Include
Embryos” (the Form Directive). The Form Directive provided, in
pertinent part, 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].
[¶] . . . [¶] [A]ny and all changes to [this Form Directive] must be
mutually agreed to between both partners. One person cannot
fertilized by a sperm cell, this fusion, also known as a prezygote
or preembryo, keeps dividing until the prezygote gets to the four-
to-eight cell stage, at which time several of the prezygotes are
transferred into the woman’s uterus by means of a cervical
catheter. If the procedure is successful, an embryo will affix itself
to the wall of the woman’s uterus, differentiate, and grow into a
fetus.’ Marisa G. Zizzi, The Preembryo Prenup: A Proposed
Pennsylvania Statute Adopting A Contractual Approach to
Resolving Disputes Concerning the Disposition of Frozen
Embryos, 21 Widener L.J. 391, 393–95 (2012).” (Id. at p. 353,
fn. 1.)
“ ‘ “Pre-embryo” is a medically accurate term for a zygote or
fertilized egg that has not been implanted in a uterus. It refers
to the approximately 14-day period of development from
fertilization to the time when the embryo implants in the uterine
wall and the “primitive streak,” the precursor to the nervous
system, appears.’ Right of Husband, Wife, or Other Party to
Custody of Frozen Embryo, Pre-embryo, or Pre-zygote in Event of
Divorce, Death, or Other Circumstances, 87 A.L.R. 5th 253 (2001)
(citing Coleman, Procreative Liberty and Contemporaneous
Choice: An Inalienable Rights Approach to Frozen Embryo
Disputes, 84 Minn. L. Rev. 55 (1999)).” (Loeb v. Vergara, supra,
313 So.3d at p. 353, fn. 2.)
3
use the [c]ryopreserved [m]aterial 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 [a
clinic p]hysician staff member or [its] staff). All changes must be
in writing and signed by both parties. Unilateral changes cannot
be honored by the [clinic].” (Italics added.)
Before the pre-embryos were implanted successfully into a
surrogate, Loeb and Vergara ended their relationship. Vergara
has never provided consent to Loeb for use of the pre-embryos.
B. The Santa Monica Action
On August 29, 2014, Loeb filed an action against Vergara
and the clinic in the Superior Court of Los Angeles County,
seeking to establish and enforce a right to use the pre-embryos
for implantation into a surrogate (the Santa Monica action).
Loeb asserted five causes of action for declaratory relief, one for
breach of oral contract, and one for promissory estoppel. In
support of those claims, he alleged, among other things, that: the
Form Directive signed by the parties prior to the fertility
treatments did not invalidate the parties’ preexisting oral
agreement that the pre-embryos would be immediately implanted
into a surrogate; the Form Directive was not an agreement with
Vergara, but instead a consent form intended to benefit and
protect the clinic; and the Form Directive was unenforceable
because there was no consideration, it was uncertain, and he
signed it under duress. In his prayer for relief, Loeb sought
declarations 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
4
into a surrogate; (3) the clinic’s Form Directive executed by the
parties was void and unenforceable; (4) the Form Directive was
unconscionable; (5) the Form Directive was subject to rescission
because Loeb signed it under duress; and (6) Vergara was an egg
donor under the Family Code with no parental or financial
obligations to any resulting children. (Vergara v. Loeb (Jan. 28,
2019, B286252) [nonpub. opn.] (the anti-SLAPP opinion.)
On December 6, 2016, on the eve of a hearing on Vergara’s
motion for sanctions based on discovery violations and for
summary judgment/adjudication, Loeb voluntarily dismissed the
Santa Monica action against Vergara without prejudice. On
August 11, 2017, the trial court entered judgment after dismissal
in favor of Vergara that included a cost award. (Vergara v. Loeb,
supra, B286252.)
C. Louisiana Action I
On November 30, 2016, Loeb as settlor created the Nick
Loeb Louisiana Trust No. 1 (the trust) for the future benefit of
the two principal beneficiaries of the trust, his “two daughters,
Isabella Loeb and Emma Loeb, who [were] presently in a
cryopreserved embryonic state” at the clinic. Loeb designated a
third party as trustee and funded the trust with an initial
conveyance of $28,000 which, after Loeb’s death, was to be used
by the trustee, in his discretion, for the “health, education,
maintenance, or support” of the principal beneficiaries.
On December 7, 2016, Loeb directed the filing of a lawsuit
naming the pre-embryos, the trust, and the trustee as plaintiffs
against Vergara in state court in Louisiana (the Louisiana
Action I). Loeb was not personally a party to the Louisiana
5
Action I. The complaint filed on behalf of the pre-embryos and
the trust sought relief similar to what Loeb had sought on his
own behalf in the Santa Monica action, including granting Loeb
control over the pre-embryos and termination of Vergara’s
parental rights, as well as additional relief, including a finding
that Vergara had tortiously interfered with the pre-embryos’
ability to inherit from the trust by preventing transfer to a
surrogate.
Vergara removed the Louisiana Action I to federal court.
As noted by that court, “Louisiana has the most favorable state
laws regarding the rights pertaining to IVF created embryos,
which make them juridical people that have the right to sue and
be sued and cannot be intentionally destroyed. [Citation.] The
plaintiffs in this suit are the pre-embryos [and the trust].”
(Vergara v. Loeb, supra, B286252.)
In the fall of 2017, the federal court dismissed Louisiana
Action I for lack of personal jurisdiction over Vergara. (Vergara
v. Loeb, supra, B286252.)
D. The Current Lawsuit, Anti-SLAPP Appeal
1. Vergara’s Complaint
On February 14, 2017, before the Santa Monica action and
the Louisiana Action I were dismissed, Vergara initiated the
current lawsuit in Los Angeles Superior Court against Loeb. Her
complaint sought declaratory relief and permanent injunctive
relief, and asserted causes of action for breach of contract,
promissory fraud, promissory estoppel, and malicious
prosecution. Among other things, Vergara alleged that Loeb
6
breached the parties’ agreement in the Form Directive not to use
the pre-embryos without her written consent by filing and
litigating for two years the Santa Monica action and creating the
trust to pursue the Louisiana Action I, which actions caused her
to suffer damages in the form of two years of litigation costs. In
addition to damages, Vergara alleged that Loeb’s actions in
litigating the Santa Monica action and creating the trust to
pursue the Louisiana Action I entitled her to declaratory and
injunctive relief to prevent Loeb from engaging in any future
attempt to use the pre-embryos without her written consent.
Vergara further alleged that Loeb’s filing and litigation of the
Santa Monica action supported a claim for malicious prosecution
entitling her to damages.
2. Anti-SLAPP Motion and Appeal
In April 2017, Loeb filed a special motion to strike under
section 425.16, often referred to as the anti-SLAPP statute.3 In
November 2017, Loeb appealed the trial court’s denial of his anti-
SLAPP motion. In a plurality opinion filed on January 28, 2019,
this Division reversed the court’s denial of the anti-SLAPP
motion as it related to the malicious prosecution claim only, but
3 “A special motion to strike under section 425.16—the so-
called anti-SLAPP statute—allows a defendant to seek early
dismissal of a lawsuit that qualifies as a SLAPP. ‘SLAPP is an
acronym for “strategic lawsuit against public participation.” ’
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732,
fn. 1.)” (Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th
1027, 1035.)
7
upheld the court’s denial of Loeb’s motion as to the remaining
claims. (Vergara v. Loeb, supra, B286252.)
E. Louisiana Action II
On January 9, 2018, while the anti-SLAPP appeal
remained pending, Loeb filed a petition on behalf of himself and
the pre-embryos in Louisiana against Vergara (the Louisiana
Action II), seeking custody of the pre-embryos pursuant to the
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), as codified in Louisiana. Loeb’s petition alleged 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. In a published opinion dated January 27, 2021,
the Court of Appeal of Louisiana held, among other things, 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. (Loeb v. Vergara (2021)
313 So.3d 346, 392, 395, 401.)
F. The Current Lawsuit, Motions for Summary
Judgment and/or Adjudication
In late March 2020, both Loeb and Vergara filed motions
seeking summary judgment and/or adjudication in the current
case.
In his motion, Loeb sought the following determinations,
among others: (1) the Form Directive is void as a matter of public
8
policy for not complying with Health and Safety Code
section 125315, because it did not address the disposition of the
pre-embryos in the event of separation between Vergara and
Loeb; (2) the Form Directive is an informational directive only,
and not a legally enforceable contract between Vergara and Loeb;
and (3) declaratory relief is not ripe for adjudication because no
child was created from the pre-embryos. After a hearing on
November 10, 2020, the trial court entered an order denying
Loeb’s motion in its entirety.
Vergara’s motion sought the following determinations
relevant to the current appeal: (1) the Form Directive is valid
and enforceable; (2) the Form Directive is not void or voidable
based on Loeb’s duress defense; (3) the Form Directive prohibits
Loeb from taking any action to seek unilateral control of the pre-
embryos to implant them in a surrogate; (4) Loeb has not
established any enforceable oral agreement with Vergara
authorizing him to implant the pre-embryos in a surrogate to be
born; (5) Loeb breached the Form Directive by unilaterally
creating the trust naming the pre-embryos as beneficiaries; and
(6) Vergara is entitled to a permanent injunction enjoining Loeb
from breaching the Form Directive by making any use of the
trust or engaging in any other means to seek unilateral control of
the pre-embryos without Vergara’s written consent.
On January 28, 2021, the trial court issued a ruling that
set forth the basis for denying Loeb’s motion for summary
judgment and for granting summary adjudication as to Vergara’s
claims for declaratory and injunctive relief. As relevant here, the
court granted declaratory relief: (1) that the Form Directive is a
valid and enforceable contract; (2) that the Form Directive is not
void or voidable based on a duress defense as to its execution; and
9
(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. On Vergara’s breach of contract cause of action, the court
granted relief that Loeb breached the Form Directive by his
unilateral actions in filing and pursuing Louisiana Action I. On
Vergara’s claim for injunctive relief, the court stated it would
later order a more specific injunction, and permanently enjoined
Loeb from using the pre-embryos to create a child without
Vergara’s explicit written consent.
On March 2, 2021, the trial court entered an order granting
Vergara’s motion for summary adjudication. The order was
consistent with the court’s January 28, 2021 ruling, and further
provided that “Loeb is permanently enjoined from using the [pre-
e]mbryos ‘to create a child (whether or not he or she intends to
rear the child) without the explicit written consent of the other
person (either by Notary or witnessed by [the clinic’s physician or
staff].’ ” The order further enjoined Loeb from engaging in any or
all of the following conduct: “(i) Unilaterally attempting to create
juridical persons from the [pre-embryos] to create standing to
sue; (ii) unilaterally suing on behalf of the [pre-embryos];
(iii) unilaterally asserting any claim(s) by or on behalf of the [pre-
embryos] to seek Loeb’s exclusive custody and/or exclusive
parental rights over the [pre-embryos]; and (iv) unilaterally
asserting any claim(s) by or on behalf of the [pre-embryos] to seek
relief for the purpose of unilaterally bringing the [pre-embryos] to
term without Vergara’s consent.”
10
Final judgment was entered on March 29, 2021. Loeb
timely appealed on May 26, 2021.4
DISCUSSION
On appeal, Loeb contends that the judgment in favor of
Vergara is erroneous, because the trial court incorrectly granted
summary adjudication on two of his defenses to Vergara’s claim
for declaratory relief that the Form Directive is a valid and
enforceable contract.5 Loeb argues that as a matter of law, the
Form Directive is void or voidable because the clinic failed to
include certain language required by Health and Safety Code
section 125315. Loeb also argues that he presented a duress
defense sufficient to survive summary judgment. More
specifically, he claims the trial court failed to credit his evidence
that Vergara subjected him to a pattern of abuse in their
relationship sufficient to raise an issue that he signed the Form
Directive under duress, rendering the agreement unenforceable.
Loeb further contends that the anti-SLAPP opinion (Vergara v.
Loeb, supra, B286252) resolved the issue of duress in his favor,
such that law of the case precluded the trial court from rejecting
his affirmative defense of duress.
Moving beyond the validity of the Form Directive, Loeb
contends the trial court erred in finding no triable issue of fact on
4Vergara’s June 30, 2021 motion to dismiss Loeb’s appeal
based on disentitlement is denied.
5 Loeb’s April 6, 2022 motion to file his reply brief under
seal is granted.
11
the existence of an enforceable oral agreement between Loeb and
Vergara. He argues his testimony presented sufficient evidence
of a separate oral agreement with Vergara giving him the right to
seek to implant the pre-embryos in a surrogate without Vergara’s
further consent. Loeb also contends that the trial court was
precluded by the law of the case from ruling to the contrary.
As detailed below, we reject each of Loeb’s contentions on
appeal and affirm the judgment of the trial court.
A. Standard of Review
A party is entitled to summary judgment “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.” (§ 437c, subd. (c); see Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843.) A plaintiff may move for
summary judgment on the ground there is no defense to the
action; a defendant may move for summary judgment on the
ground plaintiff’s action lacks merit. (§ 437c, subd. (a)(1);
Aguilar, at p. 843.) Once the moving party establishes a prima
facie showing of the absence of a defense, or lack of merit, as the
case may be, the other party may defeat summary judgment by
presenting evidence “that a triable issue of one or more material
facts exists as to the cause of action or a defense thereto.”
(§ 437c, subd. (p)(1); Aguilar, at p. 850.) “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, at p. 850, fn. omitted.)
12
We review a grant or denial of summary judgment de novo.
(Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499.)
We consider the record before the trial court at the time of its
ruling, with the exception of evidence to which the court
sustained objections; we liberally construe the evidence in
support of the party opposing summary judgment; and we resolve
any doubts regarding the evidence in favor of that same party.
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
“ ‘In order to demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.’ ” (United Grand Corp.
v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) We
are not required to develop appellants’ arguments for them.
(Ibid.) “We may and do ‘disregard conclusory arguments that are
not supported by pertinent legal authority or fail to disclose the
reasoning by which the appellant reached the conclusions he
wants us to adopt.’ ” (Ibid.)
B. Validity under Health and Safety Code Section
125315
When a couple receives fertility treatment from a health
care provider, Health and Safety Code section 125315 requires
the provider to supply information for making “an informed and
voluntary choice regarding the disposition of any human embryos
remaining following the fertility treatment.” (Health & Saf.
Code, § 125315, subd. (a).) The statute mandates the use of a
form setting forth specified alternatives for disposition of any
unused pre-embryos in the event of the death of one or both
parties, divorce or separation, or a decision to stop paying for
13
storage of the pre-embryos. (Id., subd. (b).) Failure to provide
the required information “constitutes unprofessional conduct”
under a portion of the Business and Professions Code. (Id.,
subd. (a).)6
6 The relevant statutory language states:
“(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: [¶] . . . [¶]
“(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.
14
It is undisputed that the Form Directive did not meet the
statutory requirements, because it did not enumerate all
available alternatives in the event the parties separated or failed
to pay storage fees. Most relevant here, Loeb and Vergara were
not asked to state their plan for disposition of the pre-embryos in
the event they separated as a couple. The Form Directive did,
however, include language governing the disposition of the pre-
embryos, regardless of whether Loeb and Vergara separated or
remained in a relationship. Referring to the pre-embryos as
“Cryopreserved Material,” the Form Directive expressly stated
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 person (either by
notary or witnessed by [clinic] Physician staff member or [clinic]
staff.) All changes must be in writing and signed by both parties.
Unilateral changes cannot be honored by the [clinic].” The Form
Directive also provided that “failure to make a mutual decision
about continued storage, use and disposition of Cryopreserved
Materials and to notify the [clinic] of the decision . . . will result
in the abandonment of the Cryopreserved Material” which would
give the clinic “the right, permission and authority to dispose of
or use the Cryopreserved Material.”
In rejecting Loeb’s argument that the Form Directive’s
statutory noncompliance rendered the document void as against
public policy, the trial court reasoned that the language of Health
and Safety Code section 125315 does not state that any
deficiencies in the form would make it void or voidable. “When a
“(E) Donation to another couple or individual.
“(F) Other disposition that is clearly stated.” (Health &
Saf. Code, § 125315.)
15
statute creates a right and provides an explicit remedy, that
statutory remedy is the exclusive remedy available for statutory
violations.” We agree with this reasoning.
Loeb argues the statutory remedy is inadequate, and
because a failure to comply with the Health and Safety Code is
negligence per se, the trial court should have permitted him to
pursue remedies available under the common law, including
declaring the Form Directive (in particular the mutual consent
requirement) unlawful and unenforceable under Civil Code
sections 1599 and 1667. Loeb’s arguments are unpersuasive, as
his proposed alternative remedy would not only override the
contracting parties’ reasonable expectations, they also run afoul
of existing law and defy basic logic.
Loeb’s proposed remedy—permitting him to void the Form
Directive—would also place the parties here at risk of violating
Penal Code section 367g, subdivision (b), which makes it
unlawful for anyone to knowingly implant an embryo without the
signed written consent of both the provider and recipient.
Because Vergara provided the ova from which the pre-embryos
were created, implantation without her consent would be
unlawful. The remedy Loeb seeks to impose—declaring Form
Directive’s mutual consent requirement void for noncompliance
with Health and Safety Code section 125315, subdivision (b)—
would do nothing to clarify the parties’ rights and obligations to
each other with respect to those pre-embryos. Indeed, Loeb has
no explanation for why the clinic’s failure to comply with the
Health and Safety Code—which was a failure to advise Vergara
equally as much as a failure to advise Loeb—should void the
written agreement to proceed by mutual consent.
16
Finally, it would be illogical for the Legislature to require
providers to inform patients about their options and
simultaneously permit the parties’ express choice to be rendered
void or voidable simply because additional options were not
included. Such an approach would leave the parties, and the pre-
embryos, in a state of legal limbo, with no governing document to
guide decisionmaking.
Accordingly, we conclude that when IVF participants have
not been advised of all the options for embryo disposition as
required by Health and Safety Code section 125315, but they
nevertheless agree to make future decisions by mutual consent,
statutory non-compliance by the IVF provider does not make the
agreement void or voidable at the election of one of the parties.7
C. Duress
The parties dispute whether Loeb’s evidence raises a
material factual issue on Loeb’s duress defense, and whether
statements in our prior decision preclude summary adjudication
of the duress issue, under the doctrine of law of the case.
1. Relevant Law
A contract obtained by duress is voidable, not void. (See
Barnette v. Wells Fargo Nevada Nat. Bank of San Francisco
7 Vergara’s March 17, 2022 motion requesting judicial
notice of filings from a separate lawsuit between Loeb and the
clinic is denied, as the materials from this separate lawsuit are
not relevant to our analysis.
17
(1926) 270 U.S. 438, 444 [“Acts induced by duress . . . are not void
in law, but are voidable only, at the election of him whose act was
induced by it”].) “A voidable transaction . . . ‘is one where one or
more parties have the power, by a manifestation of election to do
so, to avoid the legal relations created by the contract, or by
ratification of the contract to extinguish the power of avoidance.’ ”
(Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919,
930.)
a. Duress in Family Law Cases
There is a significant amount of case law examining duress
in the family law context, when one spouse seeks to set aside a
judgment or agreement obtained under duress. (See e.g., In re
Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684–686
(Rosevear) [under Family Code, section 2122, spouse seeking to
set aside judgment must show duress or one of four other
statutory grounds for relief, as well as inequity of the prior
judgment at the time it was obtained]; In re Marriage of Baltins
(1989) 212 Cal.App.3d 66, 84–87 (Baltins) [husband intentionally
used coercion to induce wife’s consent to an unconscionable
marital settlement agreement and default judgment dissolving
the marriage]; In re Marriage of Gonzalez (1976) 57 Cal.App.3d
736, 743–748 (Gonzalez) [recission of marital settlement
agreement based on duress].) As explained in these cases, “ ‘ “a
contract . . . obtained by so oppressing a person by threats
regarding the safety or liberty of himself, or of his property . . . as
to deprive him of the free exercise of his will and prevent the
meeting of minds necessary to a valid contract, may be avoided
on the ground of duress.” ’ ” (Gonzalez, at pp. 743–744; Baltins,
18
at p. 84; In re Marriage of Broderick (1989) 209 Cal.App.3d 489,
499 (Broderick) [finding no duress].) The party seeking relief
must prove the offending party’s specific intent to exercise
duress, accompanied by a corresponding level of proximateness
between the threat and the action it is purported to have caused.
(Gonzalez, at pp. 743–744.) The test does not turn on the nature
of the threats, but on the state of mind induced in the victim. (Id.
at p. 744.) Whether duress has occurred is viewed in light of the
specific circumstances of a situation, taking into consideration
the attributes or characteristics of the party claiming duress,
including his or her ability to resist. (Ibid.) “The coercion must
induce the assent of the coerced party, who has no reasonable
alternative to succumbing.” (Baltins, at p. 84.)
The bar to establish duress is high. First, the party
seeking relief must demonstrate that the other party’s threats
were made intentionally to induce him to commit or to refrain
from committing certain acts to his own detriment. (In re
Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1073, fn. 6.) It
is not enough that threats were merely a factor in the moving
party’s decision. They must be the dominating factor and
actually deprive the moving party of free will. (Gonzalez, supra,
57 Cal.App.3d at pp. 743–744; Baltins, supra, 212 Cal.App.3d at
p. 84; Broderick, supra, 209 Cal.App.3d at p. 499.) If there were
other reasonable alternatives to succumbing to the threats, but
the moving party chose instead to comply rather than to follow
one or more of those alternatives, the party did not act under
duress. (Rosevear, supra, 65 Cal.App.4th at p. 686.)
Second, as a related principle, no duress will be found if the
moving party had mixed motives for agreeing to a contract.
(Broderick, supra, 209 Cal.App.3d at p. 499.) As an example, no
19
duress was found in Broderick, where a wife who had been the
victim of past threats and domestic violence conceded that she
assigned a quitclaim deed to her husband because she wanted to
leave him and needed money to do so. (Ibid.)
Third, passage of time between the alleged coercion and
execution of the disputed agreement can defeat a claim of duress
by rebutting the inference that a party was deprived of the
exercise of free agency, or lacked any reasonable alternative but
to agree to what he later claimed was a coerced agreement. (See
Rosevear, supra, 65 Cal.App.4th at p. 686 [fact that alleged
violence took place months before settlement agreement was
signed rebutted inference of duress]; Broderick, supra, 209
Cal.App.3d at p. 499.) In short, if a contracting party has
adequate time to reflect on the terms of an agreement and to
obtain legal advice, but nevertheless signs an agreement he later
regrets, he is not a victim of duress. Rather, he is merely
suffering “ ‘buyer’s remorse.’ ” (Rosevear, supra, 65 Cal.App.4th
at p. 686.)
b. Duress in Other Cases
Outside of the family law context, “[d]uress generally exists
whenever one is induced by the unlawful act of another to make a
contract or perform some other act under circumstances that
deprive him of the exercise of free will.” (Tarpy v. County of San
Diego (2003) 110 Cal.App.4th 267, 276 (Tarpy).)8 Statutory
8 In Tarpy, supra, 110 Cal.App.4th 267, a dog owner filed
suit against the county after his dog died following a neuter
surgery he authorized to avoid paying additional shelter release
20
duress requires a person or his property to be unlawfully or
fraudulently confined or detained. (Civ. Code, § 1569.)
“Economic duress requires an unlawful or ‘wrongful act which is
sufficiently coercive to cause a reasonably prudent person faced
with no reasonable alternative to succumb to the perpetrator’s
pressure.’ ” (Hester v. Public Storage (2020) 49 Cal.App.5th 668,
679 (Hester).)9
fees. (Id. at pp. 270–272.) Summary judgment in favor of the
county was granted and affirmed on appeal, based on a signed
liability waiver, despite the dog owner’s claim he signed under
duress. The court rejected the dog owner’s argument that his
assent to the waiver of liability was negated by duress stemming
from the county’s mental coercion through the lack of reasonable
alternatives and the county’s allegedly unlawful detention of the
dog. (Id. at pp. 276–278.)
9 In Hester, supra, 49 Cal.App.5th 668, the appellate court
explained that “[e]conomic duress requires an unlawful or
‘wrongful act which is sufficiently coercive to cause a reasonably
prudent person faced with no reasonable alternative to succumb
to the perpetrator’s pressure.’ ” (Id. at p. 679.) Defendant
storage company’s form agreement gave the company authority
to declare a lien sale of storage unit contents null and void. (Id.
at p. 679.) Plaintiff argued that he signed under economic
duress, because refusing to sign the agreement would effectively
bar him from participating in the lien sales, causing him to lose
25 percent of his income. The court found no triable factual issue
of economic duress, not only because there was no evidence of
coercive conduct or bad faith, but also because “plaintiff has not
established that he lacks a reasonable alternative to accepting
the null and void clauses.” (Id. at p. 680.)
21
2. Evidence Before the Trial Court
In its ruling on Vergara’s motion for summary adjudication,
the court gave a list of six bullet points describing “the entirety of
Loeb’s evidence” on the issue of duress. Five of those bullet
points review testimony that was filed and considered by the
court, including testimony by Loeb that he signed the Form
Directive because he did not want to get yelled and screamed at
by Vergara, who was being “loud,” “intense,” “bossy,” “pushy,”
and “irritable,” making him feel embarrassed and humiliated,
that her demeaning treatment of him was a constant theme, she
would call him “loser,” and use obscenities against him. One
bullet point did not include a citation to any evidence, instead
stating: “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.”
It remains an open question whether specific pages of
Loeb’s deposition testimony concerning physical abuse were filed
with—and considered by—the trial court when it granted
Vergara’s motion for summary adjudication. In this opinion, we
will refer to those pages at issue as the “missing pages,” because
they were initially missing from an exhibit to a declaration by
Loeb’s former counsel, Jalesia McQueen. As the trial court
explained in its November 10, 2020 ruling, “Unfortunately, the
unredacted courtesy copy of Exhibit D that the court received (in
binders prepared by Vergara’s counsel) does not contain [the
missing pages.] The court, therefore, cannot analyze the
substance of that testimony.” The trial court postponed deciding
22
Vergara’s motion for summary adjudication and ordered 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 [F]orm [D]irective.”
According to its January 28, 2021 ruling, the trial court
received a courtesy copy of the McQueen declaration sometime
before December 7, 2020, but Loeb never filed the document with
the court. On December 22, 2020, Loeb filed a “Notice of
Lodging-Documents under Seal,” but did not file or serve the
document itself. The trial court noted “[t]here is a procedure for
the electronic filing of a confidential record, but Loeb has not
followed it.” Nevertheless, the court sua sponte ordered the
confidential document filed as of December 22, 2020 “to assure an
accurate record.”
The parties take starkly opposing views on whether the
“missing pages” were part of the courtesy copy lodged with and
considered by the trial court at the time of its January 28, 2021
order. In an April 6, 2022 filing titled Appellant Nicholas Loeb’s
motion for the court to further augment the record, and to order
those sealed documents filed under seal, Loeb asks that this court
order the trial court to “order the lodged and then filed
documents previously lodged on 12/22/2020, sent under seal to
the Court.” On April 11, 2022, Vergara filed an opposition to
Loeb’s motion to further augment the record, together with her
own motion to correct the record. Vergara’s opposition and
motion to correct pointed out that on November 8, 2021, this
court granted an earlier augmentation request, so the missing
pages were already part of the appellate record. Vergara’s
23
motion to correct the record seeks an order under California
Rules of Court, rule 8.155(c)(1), to reflect that the missing pages
were not part of the document lodged with the trial court.10
Ultimately, whether the missing pages were before the trial
court or not, Loeb has not raised a material factual issue on his
duress defense to the Form Directive’s validity and enforceability.
Because resolution of the parties’ dispute over whether the
missing pages were part of the record before the trial court would
not affect our decision, we discuss the evidence with the caveat
that the record question remains unresolved.
3. Analysis
Even when viewed in the light most favorable to Loeb, and
even assuming the missing deposition pages were part of the trial
court record, the evidence Loeb relies on to raise duress as a
defense to the Form Directive’s enforceability does not raise a
material factual issue, because Loeb unquestionably had mixed
motives for signing the Form Directive, and he also had
reasonable alternatives. (Tarpy, supra, 110 Cal.App.4th at
pp. 277–278; Broderick, supra, 209 Cal.App.3d at p. 499.)
Loeb’s duress argument must show that Vergara’s abuse
so deprived him of the exercise of his own free will and he had no
10 Given that Loeb’s claim of duress fails regardless of
whether the missing pages were part of the trial court’s record
and considered by the trial court, both Loeb’s April 6, 2022
motion to further augment the record and Vergara’s April 11,
2022 motion to correct the record are denied. Vergara's April 11,
2022 motion to file and seal her motion to correct the record and
opposition to Loeb's motion to further augment is granted.
24
reasonable alternative than to succumb and sign the Form
Directive. (Baltins, supra, 212 Cal.App.3d at p. 84; Gonzalez,
supra, 57 Cal.App.3d at pp. 743–744.) The problem with this
argument is that it ignores the fact that Loeb’s own testimony
indicates he was motivated by his desire to have the couple
undergo the IVF treatment, and the clinic would not have created
or cryopreserved the pre-embryos at issue without both parties’
signatures on the Form Directive. Loeb focuses his claim of
duress not on his decision to sign the documents necessary to
obtain IVF treatment with Vergara and the clinic, but only on
one aspect of the Form Directive: the requirement that he and
Vergara had to mutually consent to take future action to have the
pre-embryos implanted in a surrogate. Although Loeb argues
Vergara verbally pressured him to sign the Form Directive at the
clinic, he does not assert that absent such pressure he would not
have participated in the IVF process that created the embryos at
issue. At most, Loeb presented testimony that he felt too
embarrassed and humiliated to raise his desire for unilateral
control, and he equates those feelings to duress. Viewing the
evidence in the light most favorable to Loeb, he has not raised a
material factual issue on his duress defense, because Loeb
concedes he was also motivated by the desire for the couple to
undergo the IVF treatment with the clinic. (Broderick, supra,
209 Cal.App.3d at p. 499 [no duress will be found if the moving
party had mixed motives for agreeing to a contract].) Even if
Loeb felt he had no option but to sign the agreement if he wanted
the IVF process to proceed, he has not shown that Vergara’s
conduct was intended to coerce him into seeking IVF.
Loeb’s contention that he was suffering under duress fails
for another reason. There is no evidence that Vergara intended
25
to coerce Loeb to agree to the mutual consent provision. He
claims that what was forced upon him was the language in the
Form Directive requiring further mutual consent with Vergara to
have the embryos implanted. But that is a provision that was
presented by the clinic, not Vergara. To the contrary, Loeb has
consistently maintained that he believed he and Vergara already
had an oral agreement that gave him the authority to implant
the embryos, regardless of the language of the Form Agreement.
So even accepting Loeb’s evidence of physical and verbal abuse,
there is no evidence that the purpose of Vergara’s words or
actions was to induce Loeb to sign the mutual consent provision
to his own detriment.
The record viewed in the light most favorable to Loeb does
not establish a material dispute of fact that could support a
finding of duress. Rather, Loeb’s evidence at most suggests that
he would or already had obtained everything he wanted by
signing the agreement.
4. Duress and Law of the Case
Loeb argues that statements in the anti-SLAPP opinion
(Vergara v. Loeb, supra, B286252) about his claims of duress
precluded the trial court from summarily adjudicating his duress
defense to Vergara’s contract claims, purportedly under the law
of the case doctrine. Loeb’s contention has no merit.
Under the law of the case doctrine, when a prior appellate
court opinion states a rule of law necessary to the decision of the
case, the prior opinion “ ‘ “conclusively establishes that rule and
makes it determinative of the rights of the same parties in any
subsequent retrial or appeal in the same case.” ’ ” (Leider v.
26
Lewis (2017) 2 Cal.5th 1121, 1127.) “Generally, the doctrine of
law of the case does not extend to points of law which might have
been but were not presented and determined in the prior appeal.
[Citation.] As an exception to the general rule, the doctrine is . . .
held applicable to questions not expressly decided but implicitly
decided because they were essential to the decision on the prior
appeal.” (Estate of Horman (1971) 5 Cal.3d 62, 73.) The doctrine
“precludes a party from obtaining appellate review of the same
issue more than once in a single action.” (Katz v. Los Gatos–
Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th
47, 62, see Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425,
434.)
The portions of the anti-SLAPP opinion Loeb now relies on
appear in the context of our discussion of Vergara’s malicious
prosecution claim.11 (Vergara v. Loeb, supra, B286252.) As we
explained in the anti-SLAPP opinion, Vergara’s malicious
prosecution claim was based on Loeb’s pursuit of the Santa
Monica case, which he ultimately dismissed without prejudice.
(Vergara v. Loeb, supra, B286252.) For Vergara’s malicious
11 Our anti-SLAPP opinion held Loeb’s anti-SLAPP motion
should have been granted, but only as to Vergara’s malicious
prosecution cause of action. Our anti-SLAPP opinion affirmed
the trial court’s decision to deny Loeb’s anti-SLAPP motion as to
Vergara’s contract-based causes of action. The only defense to
Vergara’s contract-based claims considered in our prior opinion
was the litigation privilege, which did not preclude Vergara from
proceeding with those claims. The dissent took the position that
the trial court’s order denying Loeb’s anti-SLAPP motion as to
Vergara’s breach of contract claims was also subject to reversal.
(Vergara v. Loeb, supra, B286252 (dis. opn. of Kim, J).)
27
prosecution claim to survive Loeb’s anti-SLAPP motion, she had
the burden to show, among other things, that Loeb brought the
Santa Monica case without probable cause. (Sheldon Appel Co. v.
Albert & Oliker (1989) 47 Cal.3d 863, 871–872.) Focusing in on
whether there was any evidence to support Vergara’s allegation
that Loeb filed the Santa Monica lawsuit without probable cause,
we cited to caselaw explaining that the question of probable cause
is a relatively low bar, examining whether the prior action was
legally tenable, even if unlikely to succeed. (Vergara v. Loeb,
supra, B286252.) Our opinion noted that Loeb’s testimony about
signing the Form Directive under duress was sufficient to meet
the low bar required to avoid liability for malicious prosecution.
In other words, Vergara could not show her malicious prosecution
claim had minimal merit because she could not establish that the
Santa Monica action was brought without probable cause. The
anti-SLAPP opinion did not consider whether Loeb’s evidence
was sufficient to meet his burden, on summary judgment, to show
there were material issues of disputed fact to support a duress
defense to Vergara’s contract-based claims. Because the matter
was not considered, much less decided, in the prior opinion, it
does not constitute law of the case.
D. Oral Contract
In connection with her cause of action for declaratory relief,
Vergara asked the trial court to determine that there was no
enforceable oral contract between Loeb and Vergara authorizing
Loeb to implant the pre-embryos in a surrogate to be born.
Loeb argues on appeal that the trial court erred when it
found no material factual issue on the oral contract question. In
28
addition, Loeb again raises the law of the case doctrine, in
reliance on this court’s limited mention of an Illinois appellate
case—Szafranski v. Dunston (Ill.Ct.App. 2015) 34 N.E.3d 1132(Szafranski)—in the anti-SLAPP opinion; Loeb contends this
court’s discussion of Szafranski constitutes a ruling that
precluded summary adjudication of his oral contract defense.12
We reject Loeb’s arguments.
1. Loeb’s Oral Contract Contention of Error
Loeb’s evidence on the existence and enforceability of an
oral contract consisted solely of his own testimony and responses
to interrogatories. Describing this evidence in his opening brief,
Loeb asserts that he and Vergara “agreed they were ‘prolife,’
supportive of the belief that life begins at conception, and that all
of the embryos would ultimately be implanted in a surrogate and
brought to term.” In addition, they agreed that Loeb would find a
surrogate and that the embryos would be implanted
“immediately.”
The trial court noted that the only evidence of an oral
agreement was Loeb’s testimony (summarized above) and that
the testimony was insufficient to support that the parties had an
oral contract giving Loeb unilateral authority to seek to implant
the pre-embryos in a surrogate. The trial court cited Mason v.
Woodlawn Sav. & Loan Ass’n (1967) 254 Cal.App.2d 41, 44, and
12 Loeb’s November 5, 2021 request for judicial notice
relating to various non-California authorities is denied. A court
may consider cases from other states, and there is no need to take
judicial notice of those cases.
29
Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793,
811 for the propositions that contract terms must be sufficiently
definite that the performance promised is reasonably certain, and
that allegations that are too indefinite do not create a binding
contract. In particular, the trial court found the testimony about
the oral agreement lacking specific terms for performance,
including: the timing of implantation of a pre-embryo (whether it
was to be within six months, a year, or two years); the terms that
would govern if a party changed his or her mind, or one of the
parties died, or they separated; and the consequences of a breach,
among other unaddressed issues.
In his opening brief, Loeb criticizes the trial court’s
decision, but fails to identify either a material factual issue or a
legal theory under which assertion of an oral contract precludes
summary adjudication in Vergara’s favor. Loeb does not discuss
the legal authorities cited by the trial court; he does not cite to
any other authorities regarding the specificity necessary for the
parties to have come to an enforceable oral agreement; and he
does not analyze or discuss his evidence as it relates to the law of
contract formation. Rather, Loeb argues only that the “issue[] of
fact” that shows the trial court erred in granting Vergara’s
motion is encompassed in a question: “Is An Oral Contract for
Embryo Implantation Required to be More Specific Than a
Written Contract?” Loeb then asserts, without legal or factual
analysis, that the Form Directive suffered from the lack of most
of the same terms that the trial court found missing from the
alleged oral agreement.
A brief must contain reasoned argument and legal
authority to support its contentions or the court may treat the
claim as waived. (Cal. Rules of Court, rule 8.204(a)(1)(B); People
30
v. Stanley (1995) 10 Cal.4th 764, 793; Bullock v. Philip Morris
USA, Inc. (2008) 159 Cal.App.4th 655, 685 [“An appellant must
affirmatively demonstrate error through reasoned argument,
citation to the appellate record, and discussion of legal
authority”].) It is plain that what Loeb contends is a material
issue of fact is not a factual issue at all. A jury could not be asked
to answer the question Loeb poses. To the extent Loeb poses a
legal question about potential differences between oral and
written contracts, it is an abstract question that serves no
purpose: he does not identify, discuss, analyze, or apply any law
as it relates to the facts of the case or the trial court’s ruling.
Accordingly, we treat as waived Loeb’s claims on appeal
challenging the trial court’s determination that there was
insufficient evidence to raise a material factual issue on the
existence of an oral contract granting Loeb exclusive control to
implant the pre-embryos.
2. California Law on Oral Amendments to a Written
Agreement
Even if we were to overlook Loeb’s waiver, the ruling of the
trial court must be affirmed. Vergara denies the existence of an
oral agreement. But even if we were to assume that there is
sufficient evidence of a factual dispute as to whether Loeb and
Vergara reached an oral agreement prior to signing the Form
Directive, any aspect of the oral agreement that would give Loeb
unilateral control over the embryos was extinguished by the
Form Directive’s mutual consent requirement.
“A contract not in writing may be modified in any respect
by consent of the parties, in writing, without a new consideration,
31
and is extinguished thereby to the extent of the modification.”
(Civ. Code, § 1697.) In other words, even assuming Vergara and
Loeb had orally agreed that Loeb had unilateral decisionmaking
authority over the embryos’ disposition, their purported oral
agreement would have been extinguished when Loeb signed the
Form Directive, in which he agreed 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 person.” For this reason, Loeb fails to show that the
trial court erred in determining that “[t]here is no triable issue of
material fact that Loeb has an enforceable oral agreement with
[Vergara] which authorizes Loeb to implant the embryos in a
surrogate to be born.”
3. Application of the Law of the Case Doctrine to the Oral
Contract
Loeb argues that statements in the anti-SLAPP opinion, in
particular our limited discussion of Szafranski, supra, 34 N.E.3d
1132, precluded the trial court from summarily adjudicating his
oral contract defense to Vergara’s claims under the law of the
case doctrine. We disagree.
Szafranski, 34 N.E.3d 1132, was an Illinois appellate
opinion holding that in the absence of a written agreement
providing for disposition of embryos in the event of the parties’
separation, the available extrinsic evidence supported an
interpretation that the parties never intended to be bound to a
particular disposition of the embryos when they signed a consent
form that—like the Form Directive at issue in the current case—
32
provided “‘no use can be made of these [pre-embryos] without the
consent of both partners.’” (Id. at pp. 1138, 1157.)
As with in our discussion of the law of the case doctrine in
connection with the issue of duress, the discussion of Szafranski
in our prior opinion only concerned Vergara’s claim for malicious
prosecution, and whether Vergara could meet her burden to show
that Loeb had no tenable legal basis for filing his Santa Monica
action. Although Safranski was decided by an Illinois appellate
court, in the absence of controlling California law to the contrary,
we determined that Loeb had a good faith legal basis for
contending that the Form Directive’s language did not preclude
him from arguing for control of the pre-embryos. (Vergara v.
Loeb, supra, B286252.) We made no determination about the
ultimate merit of Loeb’s claims in the Santa Monica lawsuit; nor
did we assess whether his evidence in support of the existence,
meaning, and enforceability of a purported oral contract could
survive a motion for summary adjudication. We only determined
that Vergara could not show Loeb’s filing of the Santa Monica
action lacked probable cause for want of a tenable legal basis.
In addition, we note that different states have taken
varying approaches to the issue of how to balance the competing
rights of parents when a dispute over custody of frozen pre-
embryos arises. (See, e.g., 2 Haralambie & Quinn, Handling
Child Custody (2021) Abuse and Adoption Cases, § 9:8:50
[disposition of unused frozen embryos, reviewing various state
cases].) While we noted the existence of Szafranski to explain
why Loeb’s claims had a tenable legal basis, we had no need to
consider or decide—expressly or implicitly—how a California
appellate court would determine whether a contributor of genetic
material could, based on an oral agreement, successfully assert
33
control over the embryos created by that genetic material,
regardless of the other party’s opposition. That was not the
question we were asked to decide in the prior appeal, and it is not
the question we are being asked to decide in the current appeal
either.
E. Terms of Injunctive Relief
In its judgment, the trial court permanently enjoined Loeb
from using the pre-embryos to create a child without Vergara’s
express written consent, either notarized or appropriately
witnessed. The court’s injunction, on this issue, precisely tracks
the language of the Form Directive that Loeb and Vergara
signed. The judgment further provides a listing of conduct
encompassed in the prohibition against Loeb using the pre-
embryos to create a child. Loeb is specifically enjoined from
taking unilateral actions “by” or “on behalf” of the pre-embryos
that are clear steps toward creating a child, including bringing
the pre-embryos to term, having the pre-embryos seek to give
Loeb exclusive custody, having the pre-embryos seek standing for
and filing suit.
On appeal, Loeb appears to contend that these provisions
are contrary to our anti-SLAPP opinion, or otherwise
impermissibly burden Loeb’s own access to the courts. Loeb’s
contentions have no merit. In our prior opinion, we explained the
distinction between (a) Loeb accessing the courts on his own
behalf and (b) Loeb making unilateral decisions for or on behalf of
the pre-embryos, or causing the pre-embryos to take litigation
positions favorable to Loeb. Far from running contrary to
reasoning of the prior opinion, the trial court’s judgment hews
34
carefully to this important distinction. Loeb’s additional points—
that he is “dutybound” to act for the pre-embryos because
Vergara will not give her consent pursuant to the Form Directive
to bring them to term and will not abide by the parties’ alleged
oral agreement—fail for the reasons we have already discussed.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded
Sofia Vergara.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
35