Actress Sofia Vergara can move forward with her lawsuit that seeks to stop her former fiance from using the frozen pre-embryos that they created at the ART Reproductive Center in Beverly Hills unless he first obtains her permission, a judge ruled Tuesday.
Los Angeles Superior Court Judge Rafael Ongkeko denied a motion by lawyers for 42-year-old Nick Loeb to dismiss the case. He alleged the "Modern Family" star sued him to punish him for filing two previous actions regarding the pre-embryos, one in Santa Monica Superior Court and the other in Louisiana.
But Ongkeko said the issues are rooted in a contract between Loeb and Vergara that is not protected by the so-called "litigation privilege" asserted by the defense.
"It's very clear both parties have to agree and Mr. Loeb isn't doing any of that by his actions," the judge said.
Ongkeko said his decision was "an easy call."
In a separate ruling, the judge said Vergara's lawyers will have to shore up their client's fraud allegation against Loeb in order for it to remain part of the case. Vergara alleges Loeb made false promises to her to convince her to undergo an in-vitro fertilization procedure.
Loeb's attorney, Jennifer McGrath, told the judge she will appeal the denial of the motion to dismiss Vergara's case, arguing that the complaint infringed on her client's right to pursue litigation.
Vergara, 45, sued Loeb on Feb. 14. She seeks a court order declaring that any attempts by Loeb to bring the pre-embryos to term is a breach of their original contract.
Vergara says in a sworn declaration that she and Loeb were romantically involved from January 2010 until May 2014. She further says that in February 2013, she agreed to IVF treatments so they could have children together, even though she had one son from a previous relationship and "did not feel strongly about having more children."
The first attempt to have children failed when the surrogate mother, a friend of Vergara's, did not get pregnant, she says. The actress said she underwent a second round of treatments in November 2013 that resulted in two viable pre-embryos, but their relationship ended shortly after that "on very hostile terms."
After Vergara and Loeb broke up, Loeb asked if he could have full custody of the pre-embryos, according to Vergara.
"However, I did not want Nick to be able to bring them to term without my involvement, so I refused," she said.
Vergara says she believes Loeb sued her in an attempt to "embarrass and harass me publicly about this very private and sensitive issue."
Loeb dropped the Santa Monica lawsuit last December. In it, he sought to determine his rights regarding the pre-embryos.
In the Louisiana action, Loeb tried to establish a trust on the pre-embryos' behalf through a third party with the goal of enforcing his rights to bring them to term. But a judge in that state said in August that he had no jurisdiction over the parties or the pre-embryos and he dismissed the case.
Vergara has an adult son, Manolo. She married actor Joe Manganiello in November 2015.