Avetisyan v. Drinker Biddle & Reath LLP

Decision Date02 April 2021
Docket NumberB294671
CourtCalifornia Court of Appeals Court of Appeals
PartiesANI AVETISYAN, Plaintiff and Appellant, v. DRINKER BIDDLE & REATH LLP, Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC551859)

APPEAL from a judgment of the Superior Court of Los Angeles County. Maureen Duffy-Lewis, Judge. Reversed with directions.

Ani A. Avetisyan, in pro. per., for Plaintiff and Appellant.

Faegre Drinker Biddle & Reath, Alan J. Lazarus and Pascal Benyamini, for Defendant and Respondent.

____________________

INTRODUCTION

Ani Avetisyan, an attorney, sued Drinker Biddle & Reath LLP, her former employer, after Drinker Biddle terminated her employment. Avetisyan alleged, among other things, that Drinker Biddle made unsupported criticisms of her work and yet falsely stated that her employment was secure, that the firm would continue to employ her as long as her work was "average," and that the firm would give her six months' notice before terminating her employment.

The trial court sustained without leave to amend Drinker Biddle's demurrer to most of Avetisyan's causes of action, including her various causes of action for breach of contract and her cause of action for promissory estoppel. The court subsequently granted Drinker Biddle's motion for summary adjudication on Avetisyan's remaining causes of action for fraud and negligent misrepresentation, and for summary judgment. Avetisyan appeals, challenging the trial court's rulings on the demurrer and the motion for summary judgment.

We conclude the trial court erred in sustaining the demurrer to Avetisyan's causes of action for breach of oral contract and promissory estoppel, but did not err in sustaining the demurrer to the remaining causes of action. We also conclude the trial court erred in granting the motion for summary adjudication on Avetisyan's cause of action for fraud, but properly granted the motion on the cause of action for negligent misrepresentation. Therefore, we reverse the judgment with directions to reinstate part of this nearly decade-long dispute.

FACTUAL AND PROCEDURAL BACKGROUND
A. Avetisyan Begins Working for Drinker Biddle and Receives Mixed Performance Reviews

Avetisyan accepted an offer of employment from Drinker Biddle in January 2012 and began working in the firm's litigation department the next month. Avetisyan contends her work was "well received" by two Drinker Biddle partners, George Caplan and Kristopher Davis. She admits a third partner, Sheldon Eisenberg, was initially not satisfied with her work, but claims he was impressed with her response to his feedback. Drinker Biddle contends the partners who worked with Avetisyan were concerned about her skills, performance, and ability to advance in the litigation department.

Drinker Biddle arranged a temporary assignment or "secondment" for Avetisyan,1 where Avetisyan worked for one of Drinker Biddle's clients, under the supervision of Drinker Biddle's data privacy group, three days a week, from June 2012 to March 2013. She also continued to work part time in the litigation department. Avetisyan received positive feedback on her work in the secondment, and in September 2012 lawyers in the firm's data privacy department offered Avetisyan a position. At some point the client Avetisyan worked with also offered Avetisyan a full-time position, but Avetisyan declined the offer.

Drinker Biddle gave Avetisyan a performance review in November 2012, nine months after she started working at the firm. Eisenberg, Davis, and Caplan—the partners Avetisyan worked with in the litigation department—each said Avetisyan needed to improve her legal research, analysis, or writing, or all three. Eisenberg and Davis also expressed concern about Avetisyan's efficiency. Avetisyan considered the reviews "inaccurate and unfair" and expressed her dissatisfaction with the reviews.

Meanwhile, Stanley Crosley, an attorney in the data privacy group who worked with Avetisyan as part of the secondment, gave her a positive review. Crosley stated Avetisyan brought "very strong technical skills" and "performed extremely well." Peter Blenkinsop, who also worked with Avetisyan as part of the secondment, stated he was "extremely impressed" with her.2

On March 21, 2013, shortly before Avetisyan finished her secondment, Avetisyan spoke with Eisenberg. Eisenberg told her things were not "working out" for her in the litigation department, and he encouraged her to work with the attorneys in the data privacy group if they had work for her. According to Avetisyan, Eisenberg told her that, if she insisted on working in the litigation department full time, Drinker Biddle would give her two to three months to look for a new job, which was consistent with the firm's typical practice.

Six days later, on March 27, 2013, Drinker Biddle gave Avetisyan an interim review. This time, only Crosley, Eisenberg, and one other attorney provided a review of Avetisyan's work. The reviews by Crosley and Eisenberg were similar to their November 2012 reviews: Crosley stated Avetisyan had exceeded the expectations of Drinker Biddle's client during the secondment and "created a tremendous amount of goodwill," while Eisenberg said the work she did for him "underscored existing concerns about whether she has the top flight analytical skills that are necessary to succeed" in the litigation department.3

The next day, Avetisyan met with Eisenberg and Wilson Brown, who at the time was the chair of the firm's litigation department. Brown's message was less bleak than Eisenberg's prior statements. He stated that Drinker Biddle wanted her to succeed at the firm, did not want her to look for a new job, and wanted her to focus on a large matter in the litigation department. According to Avetisyan, Brown made various promises to her about her employment, including that Drinker Biddle would continue to employ her as long she "performed as an average associate"; that Drinker Biddle would give her a "fair" chance to succeed; and that, if the firm terminated her employment, Drinker Biddle would give her "plenty of time" to find a new job. Avetisyan finished her secondment on March 29, 2013 and returned to the litigation department full time.

B. Drinker Biddle Terminates Avetisyan's Employment, and Avetisyan Searches for a New Job

Apparently dissatisfied with her employment situation (or perhaps seeing the writing on the firm wall), Avetisyan by July 8, 2013 had decided to leave Drinker Biddle and she applied to work at three other law firms. In August 2013 she inquired about employment at two other firms. On August 22, 2013 Eisenberg and Michael McTigue, the new chair of Drinker Biddle's litigation department, met with Avetisyan. McTigue informed Avetisyan that Drinker Biddle wanted her to find a new job before the end of the year (2013) and that she no longer needed to come into the office.4 On December 16, 2013 McTigue sent an email to Avetisyan confirming that Drinker Biddle would terminate her employment on December 31, 2013, which it did.

Between August 22, 2013 and December 31, 2013 Avetisyan interviewed with at least one law firm and applied to at least three others, but did not receive an offer. In 2014, after Drinker Biddle had terminated her employment, Avetisyan interviewed with several law firms. In March 2014 she received an employment offer from one firm, but did not accept it, in part because her salary would have been lower than her salary at Drinker Biddle. After failing to secure a position she deemed suitable, Avetisyan commenced a solo practice on July 14, 2014.

C. Avetisyan Sues Drinker Biddle

On July 16, 2014 Avetisyan filed this action against Drinker Biddle and several of its partners. As relevant to this appeal, Avetisyan asserted causes of action against Drinker Biddle for breach of written, oral, and implied contract; promissory estoppel; breach of the implied covenant of good faith and fair dealing; deceit (i.e., fraud); and negligent misrepresentation.

D. The Trial Court Sustains Drinker Biddle's Demurrer to Most of Avetisyan's Causes of Action

Drinker Biddle demurred to Avetisyan's causes of action for breach of written contract, breach of implied contract, and breach of the implied covenant of good faith and fair dealing, but not to her causes of action for breach of oral contract, promissory estoppel, fraud, or negligent misrepresentation. The trial court sustained the demurrer with leave to amend, and in August 2015 Avetisyan filed a first amended complaint, asserting the same causes of action. Drinker Biddle demurred again, this time not only to the causes of action it challenged in its first demurrer, but also to Avetisyan's causes of action for breach of oral contract and promissory estoppel. In May 2016 the trial court sustained the demurrer, this time without leave to amend.5 Avetisyan filed an amended (the operative) complaint, asserting only the two causes of action Drinker Biddle had not challenged on demurrer: fraud and negligent misrepresentation.

E. The Trial Court Grants Drinker Biddle's Motion for Summary Adjudication on Avetisyan's Remaining Causes of Action

In January 2018 Drinker Biddle filed a motion for summary adjudication on each of the two remaining causes of action. Drinker Biddle argued Avetisyan could not establish the elements of her fraud or negligent misrepresentation causes of action because they were based on Drinker Biddle's alleged promises during her employment, including Brown's promise that Drinker Biddle would employ Avetisyan if her performance was average, each of which was either a nonactionable opinion or too vague and indefinite...

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