Nelson v. Tucker Ellis, LLP ( 2020 )

Filed 5/5/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
EVAN C. NELSON,
Plaintiff and Appellant, A153661
v.
TUCKER ELLIS, LLP, (City & County of San Francisco
Defendant and Respondent. Super. Ct. No. CGC-13-535453)
This is an appeal from judgment on the pleadings entered by the trial
court in favor of defendant Tucker Ellis, LLP (Tucker Ellis), a law firm.
Plaintiff Evan C. Nelson, an attorney, brought this tort action against his
former employer Tucker Ellis based on its production of materials in response
to a valid out-of-state subpoena. According to Nelson, these materials were
his privileged and confidential work product communications not subject to
disclosure without his consent. He asserts causes of action for negligence,
invasion of privacy, intentional and negligent interference with contract,
intentional and negligent interference with prospective economic advantage,
and conversion.
On appeal, Nelson seeks reversal of the judgment, arguing the trial
court prejudicially erred when finding each of his causes of action barred
under the law of the case as determined by this court in Tucker Ellis LLP v.
Superior Court (2017) 12 Cal.App.5th 1233 (Tucker Ellis III). In
Tucker Ellis III, we held inter alia that Tucker Ellis, not Nelson, was the
1
holder of the work product privilege with respect to the materials in question.
Nelson also challenges the trial court’s alternative ruling that the litigation
privilege codified in Civil Code section 47 barred each of his claims, as well as
the court’s subsequent denial of his request to amend the complaint. For
reasons set forth below, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the name of judicial efficiency, we begin with a recitation of the facts
relevant to this appeal as set forth in Tucker Ellis III.
“Nelson is a California attorney specializing in asbestos defense, and
was employed by Tucker Ellis as a trial attorney in the firm’s mass tort and
product liability practice group in San Francisco beginning in November of
2007. In late 2009, Nelson was promoted to the position of ‘non-capital
partner,’ a position he held until November of 2011, when he left Tucker Ellis
to join a competing law firm in the same practice area.
“When Nelson joined Tucker Ellis, he signed an employment
agreement, stating that he ‘agree[d] to conform to the rules, regulations and
policies of the Firm.’ During Nelson’s employment, Tucker Ellis also
provided employees with a nonpartner attorney personnel handbook, which
stated, ‘[a]ll records and files maintained by Tucker Ellis & West LLP’ were
‘the property of Tucker Ellis & West LLP,’ and ‘[a]ll documents, including
email and voice mail, received, created or modified by any attorney are the
property of Tucker Ellis & West LLP.’ The 2007 Tucker Ellis & West LLP
practice policy manual similarly provided that, ‘Firm provided Technology
Systems are Firm property.’
“As part of his employment, Nelson worked with a group of scientific
consulting experts at the Gradient Corporation (Gradient). Gradient was
retained by Tucker Ellis to assist in litigation for a Tucker Ellis client. In
2
2008, Nelson exchanged a series of e-mails with Gradient consultants about
medical research articles relating to smoking and/or radiation (rather than
asbestos) as causes of mesothelioma (hereinafter also referred to as ‘attorney
work product e-mails’). Around the same time, Tucker Ellis entered into an
agreement with Gradient to research existing scientific studies on the causes
of mesothelioma, and summarize them in a published review article that was
ultimately titled, ‘Ionizing radiation: a risk factor for mesothelioma.’
“In September of 2011, while Nelson was still employed at Tucker Ellis,
the law firm was contacted by counsel of record in Durham v. General Electric
Co. (Durham), a litigation matter pending in Kentucky. Durham counsel
advised that Tucker Ellis would be served with a subpoena seeking
documents related to payments made by Tucker Ellis to Gradient to fund
medical research articles and communications between Tucker Ellis and
Gradient regarding such articles. Tucker Ellis’s managing partner discussed
the anticipated subpoena with Nelson, albeit the parties disagree about the
contents of those conversations.
“After Nelson left Tucker Ellis, the law firm was served with the
anticipated subpoena issued in Ohio pursuant to an out-of-state commission
in the Durham case. The subpoena sought, in pertinent part, the production
of ‘[a]ny and all emails, letters or other communications between Tucker,
Ellis & West LLP and Goodman, Gradient or Exponent regarding the
research or publication’ of ‘any literature or studies related to mesothelioma,
asbestos or radiation-induced mesothelioma’ funded by Tucker Ellis,
including the noted published review article. Tucker Ellis reviewed the
subpoena and withheld certain documents on the basis of attorney-client and
the attorney work product privileges. Ultimately, Tucker Ellis produced the
attorney work product e-mails authored by Nelson, which are the subject of
3
this litigation. After Nelson was subpoenaed for deposition, he wrote a
‘clawback’ letter to Tucker Ellis and Durham counsel, asserting the e-mails
contained his privileged attorney work product and demanding they be
sequestered and returned to him. Tucker Ellis did not respond to Nelson’s
letter.
“Nelson filed this lawsuit against Tucker Ellis, alleging claims for
negligence, negligent and intentional interference with contract, negligent
and intentional interference with prospective economic advantage,
intentional invasion of privacy, and conversion. Nelson asserted that as a
result of Tucker Ellis’s production of his e-mails, his attorney work product
was made available on the Internet and disseminated to over 50 asbestos
plaintiffs’ attorneys, interfering with his ability to work effectively with
experts in the asbestos field, and ultimately resulting in his termination from
his new law firm and an inability to find new employment in his practice
field.” (Tucker Ellis III, supra, 12 Cal.App.5th at pp. 1237–1238.)
As discussed in more depth in our previous decision (Tucker Ellis III,
supra, 12 Cal.App.5th at p. 1238), Tucker Ellis initially moved to compel
arbitration of Nelson’s claims pursuant to an arbitration clause in Nelson’s
employment agreement. The trial court denied the motion, concluding the
arbitration clause was procedurally and substantively unconscionable under
California law. Tucker Ellis appealed this ruling, and we affirmed it.
(Nelson v. Tucker Ellis LLP (Dec. 15, 2014, A141121) [nonpub. opn.].) Tucker
Ellis then filed a special motion to strike the complaint as a strategic lawsuit
against public participation pursuant to Code of Civil Procedure section
425.16 (the anti-SLAPP statute),1 and the trial court denied the motion.
1 Unless otherwise stated herein, all statutory citations are to the Code
of Civil Procedure.
4
Tucker Ellis again appealed, and we again affirmed. (Nelson v. Tucker Ellis
LLP (Nov. 24, 2015, A142731) [nonpub. opn.]; see Tucker Ellis III, supra, 12
Cal.App.5th at p. 1239.)
Following discovery, Nelson filed a motion for summary adjudication,
seeking a determination that Tucker Ellis had a legal duty to protect his
attorney work product from improper disclosure to third parties pursuant to
section 2018.030.2 On July 19, 2016, the trial court granted his motion,
ruling that “ ‘Tucker Ellis LLP owed Plaintiff Evan C. Nelson a legal duty to
take appropriate steps to ensure that work product created by Plaintiff which
contains his impressions, conclusions and opinions and in [Tucker Ellis’s]
possession was not disclosed to others without Plaintiff’s permission.’ ”
(Tucker Ellis III, supra, 12 Cal.App.5th at pp. 1239–1240, 1248.)
Tucker Ellis responded with a petition for a writ of mandate in this
court challenging the court’s summary adjudication ruling. After requesting
and receiving informal briefing, we temporarily stayed the matter in the
lower court and issued an order to show cause. Then, after considering the
parties’ written pleadings, the record, and oral argument, we concluded
Tucker Ellis was entitled to writ relief because Tucker Ellis, not Nelson, was
the holder of the attorney work product privilege with respect to the subject
materials and, thus, owed Nelson no legal duty to take appropriate steps to
ensure the materials were not disclosed without his permission.
(Tucker Ellis III, supra, 12 Cal.App.5th at pp. 1236, 1240, 1242.) We
therefore let issue a peremptory writ of mandate directing the trial court to
2Nelson originally sought summary adjudication of multiple issues
before narrowing his motion to the sole issue of whether Tucker Ellis owed
him a legal duty to take the necessary precautions to protect his alleged work
product.
5
vacate its summary adjudication order and enter a new order consistent with
our decision. (Id. at p. 1248.)
After this court directed the trial court to vacate its prior summary
adjudication ruling, Tucker Ellis moved immediately for judgment on the
pleadings, arguing that, under our Tucker Ellis III decision, Nelson had no
viable legal theory. The trial court granted Tucker Ellis’s motion without
leave to amend, finding each of Nelson’s causes of action barred by the law of
the case as established in Tucker Ellis III or, alternatively, by the litigation
privilege codified in Civil Code section 47, subdivision (b). After Nelson
unsuccessfully moved for new trial, judgment was entered in favor of Tucker
Ellis, prompting this appeal.
DISCUSSION
Nelson raises the following issues on appeal: (1) Did the
Tucker Ellis III opinion compel the trial court to grant Tucker Ellis’s motion
for judgment on the pleadings? (2) Is the litigation privilege under Civil Code
section 47, subdivision (b) a complete bar to Nelson’s claims? (3) Was Nelson
entitled to leave to amend his complaint? We address each issue below.
I. Law of the Case.
In Tucker Ellis III, we considered as between Nelson and Tucker Ellis
who was the holder of the attorney work product privilege codified in section
2018.030 with respect to the documents Nelson created during and in the
course of his Tucker Ellis employment, which Tucker Ellis then disclosed in
response to the valid out-of-state subpoena. (Tucker Ellis III, supra, 12
Cal.App.5th at pp. 1236, 1242.) After analyzing California law in light of the
facts presented by the parties in connection with the summary adjudication
motion, we held: (1) Under the parties’ employment agreement and other
firm policies in effect during Nelson’s employment, “Tucker Ellis owned the
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documents in question” (id. at p. 1241); (2) Tucker Ellis was the holder of the
attorney work product privilege as to the documents (id. at p. 1242); and
(3) as a result, Tucker Ellis “had no legal duty to secure Nelson’s permission
before disclosing the documents to others.” (Ibid.) We therefore directed the
trial court to, first, vacate its summary adjudication finding that Tucker Ellis
had a legal duty to take appropriate steps to ensure the subject documents
were not disclosed without Nelson’s permission and, second, enter a new
order consistent with our decision. (Id. at pp. 1236, 1248.)
After Tucker Ellis III was filed, Tucker Ellis immediately moved for
judgment on the pleadings. The trial court granted Tucker Ellis’s motion
without leave to amend, concluding that Nelson could not state a viable claim
given the law of the case established in Tucker Ellis III and, alternatively,
that his claims were barred as a matter of law under the litigation privilege
(Civ. Code, § 47, subd. (b)).
On appeal, Nelson contends the trial court erred in relying on
Tucker Ellis III to grant judgment in favor of Tucker Ellis on the pleadings
because he is “entitled to disprove the facts the Court treated as true in
analyzing whether summary adjudication was appropriate” and “to cure any
deficiencies in the complaint at this early stage through amending his
Complaint.” For reasons that follow, we disagree.
“Where an appellate court states in its opinion a principle or rule of law
necessary to its decision, that principle or rule becomes the law of the case.
(Clemente v. State of California (1985) 40 Cal.3d 202, 211 [219 Cal.Rptr. 445,
707 P.2d 818].) The law of the case must be adhered to both in the lower
court and upon subsequent appeal. (Ibid.) This is true even if the court that
issued the opinion becomes convinced in a subsequent consideration that the
former opinion is erroneous. (Ibid.)” (Santa Clarita Organization for
7
Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th
149, 156.) “ ‘ “The rule of ‘law of the case’ generally precludes multiple
appellate review of the same issue in a single case. . . . [Citations.]” ’
[Citation.] [¶] . . . [¶] We will apply the law of the case doctrine where the
point of law involved was necessary to the prior decision and was ‘ “actually
presented and determined by the court.” ’ [Citation].” (People v. Gray (2005)
37 Cal.4th 168, 196–197.)
This doctrine also applies where the prior appeal is from a decision
short of a full trial. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 14–15.)
Where there is no substantial difference between the evidence presented by
the parties in connection with the previous appellate decision and the present
appeal, the court’s previous decision becomes the law of the case. (Ibid.; see
Weightman v. Hadley (1956) 138 Cal.App.2d 831, 841 [“law of the case”
applies when “the issues and facts found remain substantially the same, and
has no application where the facts alleged and found are materially different
from those considered on a former appeal”].)
Here, Nelson argues the “law of the case” doctrine does not apply
because Tucker Ellis III was based on facts “necessarily . . . read in the light
most favorable to Tucker Ellis.” Nelson is incorrect. As stated in
Tucker Ellis III, “a writ of mandate may issue to prevent trial of
nonactionable claims after an erroneous decision on a motion for summary
adjudication. [Citations.] Since a motion for summary adjudication ‘involves
pure matters of law,’ we review the trial court’s ruling de novo.”
(Tucker Ellis III, supra, 12 Cal.App.5th at p. 1240, italics added.) Thus, after
finding writ relief appropriate, we concluded the evidence presented by the
parties in connection with Nelson’s summary adjudication motion established
as a matter of law that Tucker Ellis held the work product privilege with
8
respect to the subject material and therefore owed no legal duty to seek
Nelson’s permission before disclosing it to third parties. (Id. at pp. 1236,
1240, 1242.) Under the authority cited above, our previous legal
determination therefore constitutes the “law of the case” so long as the
material facts in the record on this appeal are the same as the facts we
previously considered when reaching our determination. (Bergman v. Drum,
supra, 129 Cal.App.4th at pp. 18–19; People v. Gray, supra, 37 Cal.4th at pp.
196–197.)
Nelson does not identify any new or additional evidence presented to
the trial court before judgment on the pleadings was entered in favor of
Tucker Ellis.3 He does identify several facts that he claims remain in dispute
in this case, including: (1) whether he gave up his right to claim protection
for documents containing his “mental work product” by creating documents
owned by Tucker Ellis; (2) whether the subject “confidential communications”
were related to the research articles written by Gradient for Tucker Ellis; and
(3) whether the Durham subpoena “sought and received communications
concerning the [Gradient] articles . . . .” Even assuming for the sake of
argument these factual disputes exist, Nelson fails to demonstrate how they
3 Nelson argues that he “also alleged additional facts not in the
Tucker Ellis III record concerning his development, before his work at Tucker
Ellis, of unique, proprietary and valuable theories and information,” which,
“taken as true, establish that, Tucker Ellis did not own [his] confidential and
proprietary legal defenses, strategies and opinions relating to asbestos
defense litigation, and that [he] retained his privacy interest in keeping his
expertise confidential.” However, as set forth in the Tucker Ellis III opinion,
before granting writ relief to Tucker Ellis we “reviewed the parties [sic]
written pleadings, the record, and had the benefit of oral argument.”
(Tucker Ellis III, supra, 12 Cal.App.5th at p. 1240.) If Nelson was aware of
additional facts supporting his legal theories that were outside the parties’
pleadings or the appellate record, he should have presented them to the trial
court when opposing judgment on the pleadings.
9
undermine our determination in Tucker Ellis III that, as a matter of law,
Tucker Ellis (and not Nelson) holds the work product privilege with respect to
the subject materials. (See Bergman v. Drum, supra, 129 Cal.App.4th at pp.
18–19.) Thus, because Tucker Ellis III stands for a point of law actually
presented and determined by this court and necessary to its holding, we
conclude the trial court correctly regarded it as the law of the case when
ruling on Tucker Ellis’s motion for judgment on the pleadings. (People v.
Gray, supra, 37 Cal.4th at pp. 196–197; see Kowis v. Howard (1992) 3 Cal.4th
888, 894 [“When the appellate court issues an alternative writ, the matter is
fully briefed, there is an opportunity for oral argument, and the cause is
decided by a written opinion. The resultant holding establishes law of the
case upon a later appeal from the final judgment”].)
Remaining for our consideration, however, is whether our
determination in Tucker Ellis III that Tucker Ellis holds the work product
privilege with respect to the subject materials compels judgment on the
pleadings. For this inquiry, we consider each of Nelson’s causes of action in
light of the following standard of review.
“A motion for judgment on the pleadings is tantamount to a general
demurrer [citations], although it is not governed by statute and may be made
at any time prior to a final judgment (6 Witkin, Cal. Procedure (3d ed. 1985)
Proceedings Without Trial, § 267, pp. 567–568). On appeal from the granting
of the motion, the standard of review is the same as for a judgment of
dismissal following the sustaining of a general demurrer.” (Orange Unified
School Dist. v. Rancho Santiago Community College Dist. (1997) 54
Cal.App.4th 750, 764.) “In determining the merits of a demurrer [and motion
for judgment on the pleadings], all material facts pleaded in the complaint
and those which arise by reasonable implication, but not conclusions of fact
10
or law, are deemed admitted by the [moving] party. [Citations.] On appeal,
we do not review the validity of the trial court’s reasoning but only the
propriety of the ruling itself.” (Id. at p. 757.)
A. Intentional Interference with Contract and Intentional
Interference with Prospective Economic Advantage (Third
and Fifth Causes of Action).4
Nelson’s third cause of action for intentional interference with contract
requires evidence of: (1) a valid contract between plaintiff and a third party;
(2) Tucker Ellis’s knowledge of this contract; (3) Tucker Ellis’s intentional
acts designed to induce a breach or disruption of the contractual relationship;
(4) actual breach or disruption of the contractual relationship; and
(5) resulting damage. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19
Cal.4th 26, 55.) Nelson’s fifth cause of action, intentional interference with a
prospective economic advantage, requires evidence of: (1) the existence
between Nelson and a third party of an economic relationship containing the
probability of future economic benefit to Nelson; (2) Tucker Ellis’s knowledge
of the relationship; (3) Tucker Ellis’s intentionally wrongful acts designed to
disrupt the relationship; (4) actual disruption of the relationship; and
(5) resulting damage. (Roy Allan Slurry, Inc. v. American Asphalt South, Inc.
(2017) 2 Cal.5th 505, 512.)
In his complaint, Nelson alleged as to his third cause of action that
Tucker Ellis intentionally interfered with his employment and representation
of clients by “intentionally publicly disclosing the work product
Communications,” and that as a direct and proximate result he was
damaged. As to his fifth cause of action, Nelson alleged on information and
belief that Tucker Ellis intentionally interfered with his prospective economic
4 Nelson analyzes these two causes of action together, as do we.
11
advantage (consisting of attorneys’ fees earned by defending clients in
asbestos litigation) by “intentionally publicly disclosing the confidential work
product Communications.” Nelson further alleged this public disclosure of
his confidential work product “Communications was wrongful, independent of
the resulting interference, because the Communications are attorney-client
privileged and Nelson’s ‘absolute’ work product, and the law and ethical rules
governing the conduct of attorneys prohibit disclosure or use (and also
require retrieval) of documents once a party has been notified of a claim of
privilege or work product.”
The trial court found Nelson could not state a claim for intentional
interference with contract or prospective economic advantage as a matter of
law because he did not plead and could not prove that Tucker Ellis engaged
in an independently wrongful act, citing Reeves v. Hanlon (2004) 33 Cal.4th
1140 (Reeves). Nelson disputes that he is required to allege and prove an
independently wrongful act in order to state viable claims for intentional
interference, citing Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39, 45
(Popescu).
In Reeves the former employer (a law firm) of several at-will employees
sued the employees’ current employer (also a law firm), claiming the current
employer induced these employees to leave the former employer to come work
for it. (Reeves, supra, 33 Cal.4th at pp. 1145–1146.) The California Supreme
Court held that, because the plaintiff/former employer was alleging
interference with an at-will employment relation, it was required to plead
and prove the defendant/current employer engaged in an “independently
wrongful act in disrupting the relationship,” meaning “ ‘an act . . . proscribed
by some constitutional, statutory, regulatory, common law, or other
determinable legal standard.’ ” (Id. at p. 1152.) In so holding, the court
12
distinguished economic relationships between parties to contracts that are
terminable at will from relationships between parties to other legally binding
contracts, explaining that “ ‘courts provide a damage remedy against third
party conduct intended to disrupt an existing contract precisely because the
exchange of promises resulting in such a formally cemented economic
relationship is deemed worthy of protection from interference by a stranger to
the agreement. Economic relationships short of contractual, however, should
stand on a different legal footing as far as the potential for tort liability is
reckoned.’ [Citation.]” (Id. at p. 1151.)
The reviewing court in Popescu distinguished Reeves on the grounds
that Reeves involved a plaintiff/former employer suing a current employer of
at-will employees, while Popescu involved a plaintiff/at-will employee suing a
third party for intentional interference. Concluding the lower court had
erroneously interpreted and applied Reeves as compelling the conclusion that
the plaintiff could not state a claim for intentional interference with contract,
the Popescu court reasoned: “Reeves . . . concerned a type of claim that is not
at issue here—a claim by a former employer whose at-will employee was
hired away by a new employer. Because of the dual policy concerns of
employee mobility and the promotion of legitimate competition, the
California Supreme Court held in Reeves that the former employer had to
show that the new employer’s conduct in recruiting and hiring its at-will
employee was independently wrongful. (Reeves, supra, 33 Cal.4th at pp.
1149–1153.) Those same policy considerations do not exist here. This case
involves an employee—not his former employer—suing a third party for
interfering with his employment agreement. We thus hold that Reeves does
not require Popescu to allege or prove as part of his contract interference
claim that Apple’s conduct in interfering with his at-will employment
13
contract was independently wrongful.” (Popescu, supra, 1 Cal.App.5th at p.
45.)
We respectfully disagree with our Popescu colleagues’ reasoning. The
California Supreme Court’s holding in Reeves—requiring the plaintiff to
allege and prove an independently wrongful act to state a claim for
intentional interference with contract—was not based on the identity of the
plaintiff but on the type of employment relationship the defendant had
allegedly interfered with, to wit, an at-will relationship. The court explained
that the economic relationship between parties to contracts that are
terminable at will is distinguishable from the relationship between parties to
other legally binding contracts, in that “any interference with it that induces
its termination is primarily an interference with the future relation between
the parties, and the plaintiff has no legal assurance of them.” (Reeves, supra,33 Cal.4th at p. 1151.) Thus, the court held that “a plaintiff may recover
damages for intentional interference with an at-will employment relation
under the same California standard applicable to claims for intentional
interference with prospective economic advantage. That is, to recover for a
defendant’s interference with an at-will employment relation, a plaintiff must
plead and prove that the defendant engaged in an independently wrongful
act—i.e., an act ‘proscribed by some constitutional, statutory, regulatory,
common law, or other determinable legal standard’ [citation]—that induced
an at-will employee to leave the plaintiff.” (Id. at pp. 1152–1153.) We follow
this binding case law, declining to interpret our high court’s holding in the
limited manner proposed by the Popescu court.
Accordingly, we agree with the trial court that Nelson was required to
plead or prove Tucker Ellis engaged in an independently wrongful act by
intentionally disclosing “confidential work product Communications” because
14
Nelson is presumptively an at-will employee of his clients under Labor Code
section 2922. We further agree that, under the law of the case, Nelson cannot
meet this requirement because Tucker Ellis owned and held the work product
privilege as to these communications and had “no legal duty” to obtain his
permission before disclosing them. (Tucker Ellis III, supra, 12 Cal.App.5th at
p. 1248.) Tucker Ellis’s act of disclosing its own communications to a third
party in response to a valid subpoena was not wrongful. (See Melendrez v.
Superior Court (2013) 215 Cal.App.4th 1343, 1353 [as the “exclusive holder of
the work product privilege,” an attorney “can waive the work product
privilege without the consent of the client”].)
Last, we address Nelson’s argument that, even if an independently
wrongful act were necessary for him to state a claim for intentional
interference with contract or prospective economic advantage, this
requirement could be satisfied on this record because it was independently
wrongful for Tucker Ellis to “deliberately and publicly produce[] materials not
called for by the subpoena which were designed to make it impossible for
[him] to compete with them [in the legal field] after he left the firm.”
According to Nelson, the fact that Tucker Ellis holds the work product
privilege with respect to these materials is irrelevant to this inquiry. We
again disagree.
To be independently wrongful, an act must be proscribed by “ ‘some
constitutional, statutory, regulatory, common law, or other determinable
legal standard’ [citation] . . . .” (Reeves, supra, 33 Cal.4th at pp. 1152–1153.)
Nelson identifies no determinable legal standard proscribing Tucker Ellis’s
act. Instead, he insists Tucker Ellis’s intentionally produced materials
outside the scope of the subpoena to “make it impossible for Nelson to
practice law with other clients and firms.” However, an “act is not
15
independently wrongful merely because defendant acted with an improper
motive.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134,
1158.) And even if it were, as we previously stated, “to the extent th[e] task
[of complying with requests for disclosure while preserving the privilege]
involves former attorneys who created work product for current firm clients,
as here, the purpose of the attorney work product privilege will be better
served by allowing the firm itself—with current knowledge of ongoing
litigation and client issues and in the context of the firm’s ongoing attorney-
client relationships—to speak with one voice regarding the assertion of the
privilege.” (Tucker Ellis III, supra, 12 Cal.App.5th at p. 1247.) Permitting
Nelson to allege an independently wrongful act based on Tucker Ellis’s
assessment of whether certain information is privileged would undermine the
important policy concerns underlying the attorney work product privilege.
Accordingly, we conclude the trial court correctly granted the motion
for judgment on the pleadings as to the third and fifth causes of action.
B. Invasion of Privacy (Sixth Cause of Action).
Nelson’s invasion of privacy cause of action was premised on the
allegation that Tucker Ellis “negligently and/or intentionally publicly
disclos[ed] his confidential and private absolute work product.” The trial
court found Nelson failed to state a valid claim as to this cause “because the
holder of the communications and the privilege is Tucker Ellis, not [Nelson].”
This finding is correct.
Nelson’s claim for invasion of privacy required him to plead and prove
(1) a legally protected privacy interest; (2) reasonable expectation of privacy
under the circumstances; and (3) a serious invasion of such privacy interest.
(International Federation of Professional & Technical Engineers, Local 21,
AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 338 (International Fed.).)
16
“Four distinct kinds of activities have been found to violate this privacy
protection and give rise to tort liability. These activities are (1) intrusion into
private matters; (2) public disclosure of private facts; (3) publicity placing a
person in a false light; and (4) misappropriation of a person’s name or
likeness.” (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125,
1129 (Moreno).)
Here, we are concerned with the second type of activity—Tucker Ellis’s
alleged wrongful disclosure of private facts consisting of Nelson’s
communications with expert consultants regarding asbestos litigation
defense. “The elements of this tort are ‘ “(1) public disclosure (2) of a private
fact (3) which would be offensive and objectionable to the reasonable person
and (4) which is not of legitimate public concern.” ’ [Citation.] The absence of
any one of these elements is a complete bar to liability.” (Moreno, supra, 172
Cal.App.4th at pp. 1129–1130, italics added.)
Nelson’s claim fails due to the absence of private facts. Simply put,
Nelson cannot have a legally protected privacy interest or a reasonable
expectation of privacy with respect to communications that he did not own or
hold privileged. Nor can Tucker Ellis “serious[ly] inva[de]” a privacy interest
in communications that are its own. (International Fed., supra, 42 Cal.4th at
p. 338.) As the Moreno court notes, an invasion of privacy claim arises from
“ ‘ “ ‘the right to define one’s circle of intimacy—to choose who shall see
beneath the quotidian mask.’ ” . . . ’ [Citation.]” (Moreno, supra, 172
Cal.App.4th at p. 1130; see id. at p. 1129 [the tort of invasion of privacy
arises from “a distinct interest associated with an individual’s control of the
process or products of his or her personal life”].) Under the law of the case,
the right to control disclosure of the allegedly confidential attorney work
product communications was Tucker Ellis’s alone. (Tucker Ellis III, supra, 12
17
Cal.App.5th at pp. 1247–1248.) Judgment on the pleadings in Tucker Ellis’s
favor as to this cause of action was thus correct.
C. Negligence, Negligent Interference with Contract and
Negligent Interference with Prospective Economic
Advantage (First, Second and Fourth Causes of Action).
Each of Nelson’s negligence causes of action was premised on his
allegation that Tucker Ellis owed “ethical duties, statutory duties and a duty
of care to take reasonable steps to prevent public disclosure of [his]
confidential work product Communications.” Thus, given our previous
holdings that the confidential work product communications were Tucker
Ellis’s work product and that Tucker Ellis had no legal duty to secure
Nelson’s permission before disclosing them (Tucker Ellis III, supra, 12
Cal.App.5th at pp. 1242, 1248), the trial court correctly found Nelson failed to
state a claim for negligent breach of duty under these three theories.5
Nelson responds that the facts alleged in his complaint trigger ethical
or professional duties distinct from the attorney work product privilege that
were owed by Tucker Ellis, including a fiduciary duty to protect its client’s
privacy interests, a duty to “preserve the client’s right and ability to continue
to use Nelson as its attorney of choice,” a duty of good faith and fair dealing
with respect to Nelson’s right to practice law, and a duty to protect his right
5 The elements of negligent interference with contract or prospective
economic advantage are (1) the existence of a valid contractual relationship
or other economic relationship between the plaintiff and a third party
containing the probability of future economic benefit to the plaintiff; (2) the
defendant’s knowledge (actual or construed) of the relationship; (3) the
defendant’s knowledge (actual or construed) that the relationship would be
disrupted if the defendant failed to act with reasonable care; (4) the
defendant’s failure to act with reasonable care; (5) actual disruption of the
relationship; and (6) resulting economic harm. (Venhaus v. Shultz (2007) 155
Cal.App.4th 1072, 1077–1078; SCEcorp v. Superior Court (1992) 3
Cal.App.4th 673, 677.)
18
to be protected from public scrutiny as he developed defense strategies for his
clients. Nelson’s argument fails.
First, as to the first two of these proposed duties, even assuming for the
sake of argument that Tucker Ellis owed a duty to protect or preserve a
client’s right to choose a particular lawyer or to maintain its privacy
interests, it would be for the client, not Nelson, to assert this right in court.
(See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 936 [“In
general, California law does not give a party personal standing to assert
rights or interests belonging solely to others”].) Nelson responds that “[t]he
person who was the lawyer at the time of the confidential communication”
may assert the attorney-client privilege on the client’s behalf. (Evid. Code,
§ 954, subd. (c).) While this proposition may be correct as a general matter,
we have already held that Tucker Ellis, not Nelson, was the attorney and
holder of the work product privilege with respect to the alleged confidential
materials. (Tucker Ellis III, supra, 12 Cal.App.5th at p. 1242.)
Moreover, with respect to Nelson’s proposed duties relating to his law
practice or development of defense strategies for clients, as we just explained
our previous opinion held that Tucker Ellis owed Nelson no legal duty to
secure his permission before disclosing the subpoenaed materials.
(Tucker Ellis III, supra, 12 Cal.App.5th at p. 1248.) Notwithstanding
Nelson’s repeated attempts to reframe Tucker Ellis’s legal duties, the essence
of his complaint relates to the firm’s handling of these subpoenaed materials.
Accordingly, his attempts fail for the same reason identified above. Under
the binding law of the case, Tucker Ellis alone had the right to assert—or not
to assert—the attorney work product privilege with respect to the material
subpoenaed in the Durham litigation. (Id. at pp. 1242, 1248.) “ ‘Litigants are
not free to continually reinvent their position on legal issues that have been
19
resolved against them by an appellate court.’ ” (Joyce v. Simi Valley Unified
School Dist. (2003) 110 Cal.App.4th 292, 304.)
D. Conversion (Seventh Cause of Action).
Nelson alleged Tucker Ellis intentionally took possession of his work
product materials and converted them to its use, thereby substantially
interfering with his right of possession. The trial court found Nelson failed to
state a claim for conversion “because [he] does not own the communications
that form the basis of his complaint.” The trial court’s finding is correct
under the law of the case. (Tucker Ellis III, supra, 12 Cal.App.5th at p. 1241
[“Tucker Ellis owned the documents in question”].) To prevail on a claim of
conversion, the plaintiff must prove “ ‘ “an ownership or right to possession of
the property at the time of the conversion.” ’ ” (Shopoff & Cavallo LLP v.
Hyon (2008) 167 Cal.App.4th 1489, 1507.)
Accordingly, because the confidential communications at the heart of
Nelson’s complaint were not his property, the trial court properly granted
Tucker Ellis’s motion for judgment on the pleadings as to this cause of action.
II. Litigation Privilege.
The trial court granted Tucker Ellis’s motion for judgment on the
pleadings on the alternative ground that each of Nelson’s causes of action
was barred by the litigation privilege under Civil Code section 47,
subdivision (b).6 Under this privilege, which courts interpret broadly,
defendants are immunized from tort liability for any communication
“ ‘(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and
6Civil Code section 47, subdivision (c) was amended effective
January 1, 2019. (Stats. 2018, ch. 82, § 1, No. 2, Deering’s Adv. Legis.
Service, pp. 722–723.) Subdivision (b) of the statute, which is applicable
here, was not amended. (Ibid.)
20
(4) that [has] some connection or logical relation to the action.’ ” (Action
Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241;
see Silberg v. Anderson (1990) 50 Cal.3d 205, 216 [the litigation privilege is
absolute in nature, applying “to all publications, irrespective of their
maliciousness”] (Silberg).) The primary purpose of this privilege is “ ‘to afford
litigants and witnesses [citation] the utmost freedom of access to the courts
without fear of being harassed subsequently by derivative tort actions.’ ”
(Action Apartment Assn., Inc., supra, at p. 1241.)
Here, the tortious conduct at the heart of Nelson’s lawsuit is Tucker
Ellis’s disclosure of attorney work product communications to a third party in
response to a valid subpoena commissioned by an out-of-state court. On its
face, this conduct is based on (1) communications (disclosure of attorney work
product); (2) made in judicial proceedings (the Durham litigation); (3) by a
participant authorized by law (Tucker Ellis, as the subpoenaed party); (4) to
achieve the object of the litigation (to assist the plaintiff/subpoenaing party to
advance its case); and (5) that have some connection to the case (the
subpoenaed communications reflected Tucker Ellis’s involvement in the
funding and/or the creation of defense expert articles). Accordingly, the trial
court correctly found the litigation privilege was a complete bar to this
lawsuit.
Nelson unconvincingly argues at least some of Tucker Ellis’s conduct
was noncommunicative in nature and therefore falls outside the scope of the
litigation privilege. The relevant question when applying this privilege is
whether the gravamen of Nelson’s action was communicative or
noncommunicative conduct. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1061
(Rusheen).) In this case the conduct was communicative. Nelson alleged he
was aggrieved by Tucker Ellis’s disclosure in response to a valid subpoena of
21
communications he created in the course of his legal representation of clients,
conduct falling squarely within the scope of the privilege. (See Foothill
Federal Credit Union v. Superior Court (2007) 155 Cal.App.4th 632, 635
[defendant’s disclosure of documents in response to a valid discovery request
was communicative conduct protected by the litigation privilege] (Foothill).)
While Nelson focuses on allegations relating to Tucker Ellis’s failures—
mainly, its failures to withhold confidential materials in its subpoena
response, to produce them under a protective order and to comply with its
implied agreement with him to withhold the materials—these failures to act
when responding to the subpoena were necessary corollaries of Tucker Ellis’s
act of disclosing material, which cannot be distinguished for purposes of our
analysis. To hold otherwise would thwart application of the litigation
privilege when in fact we are supposed to broadly apply it in order to further
the important public policies that support it. (See Rusheen, supra, 37 Cal.4th
at p. 1065 [“the litigation privilege extends to noncommunicative acts that
are necessarily related to the communicative conduct”].)
Nelson attempts to distinguish Foothill, a case with facts quite similar
to ours, in which the appellate court held that the litigation privilege was a
complete bar to the plaintiffs’ invasion of privacy claim that was based on the
defendant’s act of responding to a subpoena in an allegedly overbroad
manner. (Foothill, supra, 155 Cal.App.4th at p. 634.) There, the relevant
records (consumer bank records) were produced pursuant to Code of Civil
Procedure section 1985.3, a statute that authorizes the production of bank
records after the consumer receives notice and the opportunity to object. (Id.
at p. 639.) According to Nelson, unlike in our case, the Foothill court’s
application of the litigation privilege did not contravene the relevant statute,
Code of Civil Procedure section 1985.3. Nelson reasons: “Code of Civil
22
Procedure section 2018.030 [attorney work product privilege] and Civil Code
section 3426.11 [trade secrets privilege] contain the intent to prevent
discovery and the specific guarantee of complete confidentiality missing in
Code of Civil Procedure section 1985.3.” Thus, he concludes, “the litigation
privilege cannot trump a later-enacted statute that explicitly prohibits the
act for which Tucker Ellis seeks the protection of the litigation privilege.”
Nelson’s argument is yet another attempt to relitigate our previous
holding, binding in this case, that Tucker Ellis and not Nelson is the holder of
the attorney work product privilege with respect to the relevant
communications. (Tucker Ellis III, supra, 12 Cal.App.5th at p. 1248.) As
such, the litigation privilege is not being applied to permit an act prohibited
by statute because Tucker Ellis, the owner of the privileged materials and
holder of the work product privilege, had the right to waive the privilege and
produce them. (Melendrez v. Superior Court, supra, 215 Cal.App.4th at p.
1353; see People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 713 [“the
custodian of materials protected by an evidentiary privilege owes a duty to
the holder of the privilege to claim the privilege and to take actions necessary
to ensure that the materials are not disclosed improperly” (italics added)];
Civ. Code, § 3426.11, 1st par. [“the voluntary, intentional disclosure of trade
secret information, unauthorized by its owner, to a competitor or potential
competitor of the owner of the trade secret information . . . is not privileged”
(italics added)].)
Last, we briefly address Nelson’s claim that Tucker Ellis’s subpoena
response did not fulfill a necessary or useful step in the Durham litigation
because the material was inadmissible and irrelevant. As in Foothill, the
documents were produced to provide the subpoenaing party with potential
evidence in the Durham litigation. (Foothill, supra, 155 Cal.App.4th at p.
23
636.) Nothing more was required to meet the litigation privilege standard.
(See Silberg, supra, 50 Cal.3d at pp. 219–220 [“The requirement that the
communication be in furtherance of the objects of the litigation is, in essence,
simply part of the requirement that the communication be connected with, or
have some logical relation to, the action, i.e., that it not be extraneous to the
action”].)
As the California Supreme Court in Rusheen explained, “with the
litigation privilege, ‘it is desirable to create an absolute privilege . . . not
because we desire to protect the shady practitioner, but because we do not
want the honest one to have to be concerned with [subsequent derivative]
actions . . . .’ [Citation.] . . . Thus, the ‘salutary policy reasons for an absolute
[litigation] privilege supersede individual litigants’ interests in recovering
damages for injurious publications made during the course of judicial
proceedings.’ ” (Rusheen, supra, 37 Cal.4th at p. 1064.) “[A]pplication of the
litigation privilege gives the recipient of a subpoena duces tecum freedom to
respond to that subpoena without fear of being harassed subsequently by
derivative tort actions.” (Foothill, supra, 155 Cal.App.4th at p. 637.)
Accordingly, we affirm the trial court’s application of this privilege to
bar Nelson’s tort claims directed at Tucker Ellis’s communicative conduct as
a participant in the Durham litigation. Judgment on the pleadings was
proper.
III. Denial of Leave to Amend.
“ ‘ “Where the complaint is defective, ‘[i]n the furtherance of justice
great liberality should be exercised in permitting a plaintiff to amend his [or
her] complaint . . . .’ ” ’ [Citation.] We determine whether the plaintiff has
shown ‘in what manner he [or she] can amend [the] complaint and how that
amendment will change the legal effect of [the] pleading.’ [Citation.] ‘[L]eave
24
to amend should not be granted where . . . amendment would be futile.’
[Citations.]” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 996–
997.)
Here, the trial court correctly denied Nelson leave to amend his
complaint when granting Tucker Ellis’s motion for judgment on the pleadings
because amendment would have been futile. Nelson’s legal theories were
soundly rejected by our decision in Tucker Ellis III, which is law of the case,
and even if they had not been, the litigation privilege serves as a complete
bar to his claims. Moreover, Nelson has not identified any additional facts
that he can allege to overcome these legal barriers. (See Schifando v. City of
Los Angeles (2003) 31 Cal.4th 1074, 1081 [“plaintiff has the burden of proving
that an amendment would cure the defect”].) The judgment therefore stands.
DISPOSITION
The judgment is affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Fujisaki, J.
A153661/Nelson v. Tucker Ellis, LLP
26
A153661/Nelson v. Tucker Ellis, LLP
Trial Court: Superior Court of the City and County of San Francisco
Trial Judge: Gail Dekreon, J.
Counsel: Kerr & Wagstaffe, Wagstaffe, von Loewenfeldt, Busch & Radwick,
James M. Wagstaffe, Michael von Loewenfeldt, Frank Busch;
Lincoln Law and Tessa Mayer Santiago for Plaintiff and
Appellant.
Long & Levit, Joseph P. McMonigle, Kathleen M. Ewins, David S.
McMonigle and Jonathan Rizzardi for Defendant and
Respondent.
27