Metropolitan News-Enterprise


Wednesday, June 3, 2009


Page 1


Court Tosses Claims by Children Born to Surrogate

Twins’ Support Action Against Father’s Estate Held Untimely


By SHERRI M. OKAMOTO, Staff Writer


This District’s Court of Appeal yesterday threw out the claims of 15-year old twins born to a surrogate mother against the Texas estate of their biological father asserting breach of the surrogacy agreement due to the father’s failure to support them as time-barred.

Div. Four held that Code of Civil Procedure Sec. 366.2’s “one year after the date of death” statute of limitations applies to an action on the liability of a deceased person without regard to the location of the decedent’s estate and granted writ relief directing Los Angeles Superior Court Judge Conrad R. Aragon to dismiss the action against the estate of Harold Farb.

In November 1993, Farb and his then-wife, Julie Benveniste Farb, contracted with a surrogate mother to produce a child. The parties agreed that the surrogate would be implanted with embryos created by the Farbs, who promised to pay the surrogate mother for specified expenses and care for the child after birth.

Pregnancy Confirmed

After the surrogate mother was confirmed pregnant with twins, but before the children were born, Harold Farb filed for divorce.

Julie Farb claimed that her husband insisted she sign a declaration stating he had no children as a result of their marriage, threatening that “he would use his vast financial resources, power and connections to insure [sic] that if she revealed to the family court that they were in the process of having children he would insure [sic] that he was awarded custody and that she would be precluded from ever seeing the children.”

The dissolution became final before the surrogate mother gave birth to Rita and Robert Farb. Harold and Julie Farb were listed as the parents of the children on their birth certificates, but the children lived with Julie Farb and Harold Farb provided no financial support for them.

In 2006, Harold Farb passed away. While probate of his estate, estimated to exceed $120,000,000, was pending in Texas, the children, through their guardian ad litem, brought an action in Los Angeles Superior Court against the estate.

The children contended that they were third party beneficiaries of the surrogacy contract and that Harold Farb had breached the contract by failing to provide for their welfare. They also asserted a cause of action for fraud.

Demurrer Filed

Harold Farb’s estate demurred, contending the children’s action was barred by Sec. 366.2, the children were not third party beneficiaries, and they could not prove the reliance required for a fraud cause of action.

Aragon sustained the demurrer as to the fraud claim without leave to amend, but overruled the demurrer on the contract cause of action and declined to rule on the statute of limitations issue.

In their amended complaint, the children only asserted a breach of contract claim, seeking between $97,280 and $193,280 in support per month for the entirety of their minority. The estate again demurred, but Aragon overruled the demurrer, finding the time bar under Sec. 366.2 only applied to probate proceedings in California.

Writing for the appellate court, Presiding Justice Norman L. Epstein explained that Sec. 366.2 sets forth the limitations period for “an action” brought against a deceased person.

Noting that the statute “makes no reference to the location of the decedent’s estate, contains no language requiring that the probate or trust administration take place in California, and does not exclude actions where the probate or trust is being administered outside of California,” Epstein reasoned that the absence of such language of limitation indicated that Sec. 366.2’s one year deadline applied to the children’s action against their biological father.

Choice of Law

Although the children argued that the dispute should be governed by the Texas statute of limitations because the probate proceedings were taking place in that state, Epstein concluded that the surrogacy contract’s choice of law provision was controlling and therefore that California law, including Sec. 366.2, should be enforced.

He emphasized that the state had a substantial relationship to the parties and the transaction since the parties to the contract were California residents, the parties had selected California law to govern any disputes, the contract was entered into and performed in California, and the children were California residents seeking to enforce the contract in a California court.

Additionally, as Sec. 366.2 expressly provides that its one year limitations period “shall not be tolled or extended for any reason except” the circumstances specifically enumerated in the statute which undisputedly were not applicable, Epstein, joined by Justices Thomas L. Willhite Jr. and Nora M. Manella, rejected the children’s contention that the limitations period was tolled during their minority.

Charles A. Bird, Peter H. Klee, Suzanne Y. Badawi and Theona Zhordania of Luce, Forward, Hamilton & Scripps represented the estate of Harold Farb.

 John L. Dodd of John L. Dodd & Associates and David Schneider of Mitchell Keiter represented the children as real parties in interest.

The case is Farb v. Superior Court (Farb), B209814.


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