Avetisyan v. Drinker Biddle & Reath CA2/7 ( 2021 )

Filed 4/2/21 Avetisyan v. Drinker Biddle & Reath CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
ANI AVETISYAN, B294671
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC551859)
v.
DRINKER BIDDLE & REATH LLP,
Defendant and Respondent.
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.
2
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.
1 As explained in Avetisyan’s prior appeal, a “secondment” is
an assignment of an individual from one company or firm to
another for a defined period of time. (Presbyterian Church of
Sudan v. Talisman Energy, Inc. (S.D.N.Y. 2006) 453 F.Supp.2d
633, 649; see Avetisyan v. McTigue (Mar. 27, 2018, B275931)
[nonpub. opn.].)
3
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.
2 Another reviewer, who apparently did not work with
Avetisyan as part of the secondment, stated he was “very
pleased” with Avetisyan’s work and had “no significant
criticisms.”
4
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.
3 The other reviewer provided a positive review, but had only
“limited experience” working with Avetisyan on a client
presentation.
5
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.
4 Drinker Biddle contends McTigue informed Avetisyan that
the firm was terminating her employment effective December 31.
Avetisyan contends McTigue stated Drinker Biddle did not
institute a “deadline” and was willing to give her additional time,
if necessary, to find a new job.
6
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.
5 Drinker Biddle demurred to nine other causes of action in
Avetisyan’s first amended complaint. Avetisyan does not
challenge the trial court’s order sustaining Drinker Biddle’s
demurrer to these causes of action.
7
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 to give rise to liability. With respect to
Brown’s alleged promise, Drinker Biddle argued Avetisyan could
not establish that Brown had the requisite fraudulent intent
when he made the promise or that she reasonably relied on the
promise.
The trial court granted Drinker Biddle’s motion, ruling
Avetisyan could not establish any “misrepresentations of fact” or
“reliance upon those facts.” The court entered judgment in favor
of Drinker Biddle, and Avetisyan timely appealed.
DISCUSSION
A. The Trial Court Erred in Sustaining the Demurrer to
One of Avetisyan’s Three Contract Causes of Action
and to Her Promissory Estoppel Cause of Action
1. Standard of Review
“In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
8
facts sufficient to state a cause of action under any legal theory.”
(T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145,
162; accord, Ko v. Maxim Healthcare Services, Inc. (2020)
58 Cal.App.5th 1144, 1149.) “In making this determination, we
must accept the facts pleaded as true and give the complaint a
reasonable interpretation.” (Mathews v. Becerra (2019) 8 Cal.5th
756, 762; accord, Ko, at p. 1150.)
2. Breach of Contract
“‘A cause of action for breach of contract requires pleading
of a contract, plaintiff’s performance or excuse for failure to
perform, defendant’s breach and damage to plaintiff resulting
therefrom.’” (Crossroads Investors, L.P. v. Federal National
Mortgage Assn. (2017) 13 Cal.App.5th 757, 792; see Coles v.
Glaser (2016) 2 Cal.App.5th 384, 391.) Avetisyan alleged three
different contract-based causes of action: breach of oral contract,
breach of written contract, and breach of implied contract. We
conclude the trial court erred in sustaining the demurrer to the
cause of action for breach of oral contract, but did not err in
sustaining the demurrer to the causes of action for breach of
written contract and breach of implied contract.
a. The Trial Court Erred in Sustaining the
Demurrer to Avetisyan’s Cause of Action for
Breach of Oral Contract
Avetisyan alleges several theories in support of her cause of
action for breach of oral contract, including that Brown promised
Drinker Biddle would continue to employ her if she performed as
an “average” associate. Drinker Biddle argues this alleged
promise was too vague and indefinite to enforce.
9
“‘In order for acceptance of a proposal to result in the
formation of a contract, the proposal “must be sufficiently
definite, or must call for such definite terms in the acceptance,
that the performance promised is reasonably certain.” . . . If, by
contrast, a supposed “contract” does not provide a basis for
determining what obligations the parties have agreed to, and
hence does not make possible a determination of whether those
agreed obligations have been breached, there is no contract.’”
(Bowers v. Raymond J. Lucia Companies, Inc. (2012)
206 Cal.App.4th 724, 734; see Garcia v. World Savings, FSB
(2010) 183 Cal.App.4th 1031, 1045.) “‘Whether a contract is
certain enough to be enforced is a question of law for the court.’”
(Bowers, at p. 734.)
A promise to continue employment so long as the
employee’s performance is “average” or the employee performs as
an “average associate,” like an offer to provide “appropriate”
salary increases and bonuses, is a little vague. (See Rochlis v.
Walt Disney Co. (1993) 19 Cal.App.4th 201, 213-214 [employer’s
promises to give an employee increases and bonuses “appropriate
to his responsibilities and performance,” and to provide “‘active
and meaningful’ participation in creative decisions,” were too
vague and indefinite to enforce], disapproved on another ground
in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) A
factfinder may have difficulty determining whether the
employee’s performance was “average.” But this potential
uncertainty is not fatal to Avetisyan’s claim. The “‘“‘law does not
favor but leans against the destruction of contracts because of
uncertainty; and it will, if feasible, so construe agreements as to
carry into effect the reasonable intentions of the parties if [they]
can be ascertained.’”’” (Patel v. Liebermensch (2008) 45 Cal.4th
10344, 349; see California Lettuce Growers v. Union Sugar Co.
(1955) 45 Cal.2d 474, 481.)
Avetisyan alleged facts from which the court could
ascertain the parties’ shared intentions and understanding of
what average meant. Avetisyan alleged Drinker Biddle annually
reviewed the performance of its associates, which suggested
Drinker Biddle had some kind of indicators or metrics to evaluate
and compare the performance of its associates. Avetisyan also
alleged Brown made his promise, that the firm would continue to
employ her as along as she did average work, during a meeting to
discuss Avetisyan’s interim performance review, where the
attorneys Avetisyan worked with gave her feedback on her work
and identified areas where her work was acceptable and where it
was deficient. At the very least, a reasonable interpretation of
Brown’s alleged promise is that Drinker Biddle would continue to
employ her if her deficiencies improved (and her strengths
remained constant) compared to those of other associates at the
firm. (See Serafin v. Balco Properties Ltd., LLC (2015)
235 Cal.App.4th 165, 173 [“‘[m]utual assent is determined under
an objective standard applied to the outward manifestations or
expressions of the parties, i.e., the reasonable meaning of their
words and acts’”].)
Moreover, Avetisyan alleged that Drinker Biddle used
specific indicators to measure the performance of its associates
and that the firm communicated those indicators to Avetisyan.
Eisenberg stated in Avetisyan’s interim review that Avetisyan
continued to “display analytical issues” and failed to “obtain[ ]
detailed feedback from the partners on the litigation team.” In
Avetisyan’s previous review, Eisenberg, Caplan, and Davis all
stated Avetisyan needed to improve her legal research, analysis,
11
or writing, and Eisenberg and Davis expressed concern with
Avetisyan’s efficiency. Again, a reasonable interpretation of
Brown’s promise was that these were the areas of performance
Drinker Biddle would assess and that Drinker Biddle would
continue to employ Avetisyan if her performance was similar to
or better than the performance of other associates in these areas.
It is possible the Drinker Biddle partners’ subjective
judgment played a role in assessing whether Avetisyan’s
performance was average. But even if that were the case,
Brown’s alleged promise was not too vague or indefinite to create
an enforceable agreement. For example, an employer and
employee may agree the employer will not terminate the
employee so long as the employee performs to the “satisfaction” of
the employer. (Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d
743, 766, disapproved on another ground in Guz v. Bechtel Nat.,
Inc. (2000) 24 Cal.4th 317, 351 (Guz); see Guz, at p. 365 [“the
employer and employee may enter ‘“an agreement . . . that . . . the
employment relationship will continue indefinitely, pending the
occurrence of some event such as the employer’s dissatisfaction
with the employee’s services”’”].) That the employer’s
“satisfaction” depends on “fancy, taste, or judgment” does not
mean the contract is too vague or indefinite to enforce. (Pugh, at
p. 766.) If an employer and employee can agree the employer will
only terminate the employee if the employee’s performance is not
“satisfactory” to the employer, there is no reason they cannot also
agree the employer will only terminate the employee if the
employee’s performance is below “average.”6
6 Because Drinker Biddle did not show Avetisyan failed to
state a cause of action for breach of oral contract, we do not
12
b. The Trial Court Did Not Err in Sustaining
the Demurrer to the Cause of Action for
Breach of Written Contract
In support of her cause of action for breach of written
contract, Avetisyan alleged Drinker Biddle breached written
agreements not to terminate her without good cause and to
provide her annual performance reviews. Avetisyan did not
allege sufficient facts to constitute a cause of action under either
theory.
i. Avetisyan Did Not Plead Facts Sufficient
To Show a Written Agreement Drinker
Biddle Would Not Terminate Her Without
Good Cause
Avetisyan argues Drinker Biddle breached “an implied
term” in its offer letter “not to terminate [her] employment
without just cause.” Her allegations did not state facts to
constitute a cause of action. Labor Code section 2922, which
provides that “[a]n employment, having no specified term, may be
terminated at the will of either party on notice to the other,”
creates a “strong” presumption an employment is at-will. (Guz,
supra, 24 Cal.4th at p. 336.) “[T]he employer may act
peremptorily, arbitrarily, or inconsistently, without providing
specific protections such as prior warning, fair procedures,
objective evaluation, or preferential reassignment.” (Id. at p. 350;
address Avetisyan’s other allegations and theories supporting
that cause of action. (See Daniels v. Select Portfolio Servicing,
Inc. (2016) 246 Cal.App.4th 1150, 1169 [“Ordinarily, a general
demurrer may not be sustained . . . to a portion of a cause of
action.”].)
13
accord, Nakai v. Friendship House Assn. of American Indians,
Inc. (2017) 15 Cal.App.5th 32, 42.)
Drinker Biddle did not state in its offer letter, which
Avetisyan attached to her complaint, that Avetisyan’s
employment would be for a specified term, nor did the letter
specify the terms under which Drinker Biddle could terminate
her employment. Therefore, under Labor Code section 2922,
there is a strong presumption Drinker Biddle hired Avetisyan as
an at-will employee.
An employer and employee may agree “to any limitation,
otherwise lawful, on the employer’s termination rights,” including
a limitation on an employer’s right to terminate an employee only
for “‘good cause.’” (Guz, supra, 24 Cal.4th at p. 336.) “‘Good
cause’ . . . is defined as: ‘fair and honest reasons, regulated by
good faith on the part of the employer, that are not trivial,
arbitrary or capricious, unrelated to business needs or goals, or
pretextual.’” (Serri v. Santa Clara University (2014)
226 Cal.App.4th 830, 872; see Guz, at p. 336.) But the employee
has the burden to plead facts sufficient to overcome the
presumption he or she was at-will. (See Popescu v. Apple Inc.
(2016) 1 Cal.App.5th 39, 59 [“conclusory allegations [are]
insufficient to support a claim based upon an alleged employment
contract under which the plaintiff may be terminated only for
good cause”], disapproved on another ground in Ixchel Pharma,
LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1148; Haycock v.
Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473, 1489 [“Because
the presumption of at-will employment is premised upon public
policy considerations, it is one affecting the burden of proof.”].)
Drinker Biddle’s offer letter stated: “At [Drinker Biddle]
associates are evaluated at least annually, with an extensive
14
review during the autumn. Associate compensation is adjusted
annually also on the basis of the associate’s development, the
demand for his or her services, and market factors. Associates
advance through Levels based on their performance and a
consideration of the firm’s and Practice Group’s needs. [¶] [F]or
FY2012 you will be eligible for discretionary bonuses based on
performance, billable hours, and other matters relevant to the
evaluation of associates . . . . Associates are also eligible for a
business development bonus.”
Avetisyan contends Drinker Biddle’s compensation, review,
and advancement policies created an implied term in the written
offer of employment that Drinker Biddle would not terminate her
employment except for just cause. They did not. While relevant,
an employer’s offer to evaluate employees and provide
performance incentives like raises, bonuses, and promotions,
without more, does not overcome the presumption of an at-will
employment agreement. (See Guz, supra, 24 Cal.4th at p. 342
[“[a]bsent other evidence of the employer’s intent, longevity,
raises and promotions are their own rewards for the employee’s
continuing valued service; they do not, in and of themselves,
additionally constitute a contractual guarantee of future
employment security”]; Kelly v. Stamps.com Inc. (2005)
135 Cal.App.4th 1088, 1102-1103 [an employer’s promise of a
two-stage bonus did not create an implied agreement the
employer would not terminate an employee until the second-stage
payment was due]; Lenk v. Total-Western, Inc. (2001)
89 Cal.App.4th 959, 969-970 [an employment term that a
performance review would “‘be completed after (12) months of
employment’” did not establish an implied minimum, one-year
contract term]; Rochlis v. Walt Disney Co., supra, 19 Cal.App.4th
15at pp. 213-214 [promises that an employee would receive salary
increases and bonuses “appropriate to his responsibilities and
performance” did not overcome an at-will employment
agreement].)
ii. Avetisyan Did Not Plead Facts Sufficient
To Show Drinker Biddle Breached Its
Agreement To Provide Performance
Reviews
As discussed, Drinker Biddle’s offer letter stated the firm
would review Avetisyan at least annually, including an
“extensive review” in the fall. Avetisyan contends Drinker Biddle
breached this term by not giving her an annual performance
review in the fall of 2013, even though she was still employed.
Drinker Biddle argues that it complied with this term because it
gave Avetisyan reviews in the fall of 2012 and spring of 2013,
identifying the areas of her performance the firm found deficient,
and that the firm had no obligation to provide an additional
review in the fall of 2013 after it notified Avetisyan in August
2013 it intended to terminate her employment.
Drinker Biddle has the better argument. Drinker Biddle
significantly changed the nature of the employment agreement in
August 2013 after the meeting between McTigue and Avetisyan.
(See Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 619 [“it is
settled that an employer may unilaterally alter the terms of an
employment agreement, provided such alteration does not run
afoul of the Labor Code”].) In addition to telling Avetisyan that
she should find a new job by the end of the year, McTigue
instructed Avetisyan to “transition[ ] her work.” Under this
revised employment arrangement, Avetisyan would no longer
16
perform the work Drinker Biddle had hired and expected her to
do, and Drinker Biddle would pay Avetisyan until either she
found a new job or the end of the year. Avetisyan accepted this
new arrangement by continuing the employment (and accepting
her compensation). (See Schachter, at p. 620 [“An ‘employee who
continues in the employ of the employer after the employer has
given notice of changed terms or conditions of employment has
accepted the changed terms and conditions.’”]; Asmus v. Pacific
Bell (2000) 23 Cal.4th 1, 15 [“Just as employers must accept the
employees’ continued employment as consideration for the
original contract terms, employees must be bound by
amendments to those terms, with the availability of continuing
employment serving as adequate consideration from the
employer.”].)
Under these circumstances, Drinker Biddle’s promise when
it hired Avetisyan to give her an annual review each fall did not
survive the new arrangement. Avetisyan was not doing any new
work for Drinker Biddle; there was nothing to review, and no
point to reviewing the work of an associate who was not working
and not going to remain at the firm. The primary purpose of the
annual review, according to the offer letter, was to inform
associates of the firm’s advancement and compensation decisions,
and Avetisyan was not going to advance or receive compensation
for much longer.7
7 Avetisyan also contends, without any analysis or further
explanation, that Drinker Biddle breached this term by providing
“earlier incomplete and/or false evaluations.” We treat this
contention as forfeited. (See Potter v. Alliance United Ins. Co.
(2019) 37 Cal.App.5th 894, 911.)
17
c. The Trial Court Did Not Err in Sustaining
the Demurrer to the Cause of Action for
Breach of Implied Contract
“An implied contract is one, the existence and terms of
which are manifested by conduct.” (Civ. Code, § 1621.)
“Although an implied in fact contract may be inferred from
the ‘conduct, situation or mutual relation of the parties, the very
heart of this kind of agreement is an intent to promise,’” and like
an express contract, an implied contract “‘“must be founded upon
an ascertained agreement of the parties to perform it.”’”
(Friedman v. Friedman (1993) 20 Cal.App.4th 876, 887; see
Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636.)
To plead a cause of action for breach of implied contract, “the
facts from which the promise is implied must be alleged.”
(Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 247;
accord, Requa v. Regents of University of California (2012)
213 Cal.App.4th 213, 228.)
In support of her cause of action for breach of implied
contract, Avetisyan alleged Drinker Biddle breached implied
agreements not to terminate her without good cause and to give
her at least six months’ notice in the event it terminated her.
Again, neither allegation was sufficient to constitute a cause of
action.
i. Avetisyan Did Not Plead Facts Sufficient
To Show an Implied Agreement Not To
Terminate Her Employment Without
Good Cause
Avetisyan contends that, even if Drinker Biddle’s offer
letter did not contain an implied term that Drinker Biddle would
18
not terminate her employment without good cause, Drinker
Biddle’s conduct during the course of her employment created an
implied agreement Drinker Biddle would not terminate her
employment without good cause (in addition to the oral
agreement that Drinker Biddle would continue to employ her if
she did average work). As discussed, an employer and employee
may agree to limit the employer’s right to terminate an employee
only for good cause. (See Guz, supra, 24 Cal.4th at p. 336.) Such
an agreement “may be implied in fact, arising from the parties’
conduct evidencing their actual mutual intent to create such
enforceable limitations.” (Ibid.) Factors “that may bear upon ‘the
existence and content of an . . . [implied-in-fact] agreement’
placing limits on the employer’s right to discharge an employee
. . . might include ‘“the personnel policies or practices of the
employer, the employee’s longevity of service, actions or
communications by the employer reflecting assurances of
continued employment, and the practices of the industry in which
the employee is engaged.”’” (Id. at pp. 336-337.) The employee
has the burden to plead facts sufficient to show an implied-in-fact
agreement to overcome the presumption the employee was at-
will. (See Gould v. Maryland Sound Industries, Inc. (1995)
31 Cal.App.4th 1137, 1151 [“To state a cause of action . . . the
plaintiff must plead facts which, if proved, may be sufficient for a
jury to find an implied-in-fact contract limiting the defendant’s
right to discharge the plaintiff without cause.”]; see also Popescu
v. Apple Inc., supra, 1 Cal.App.5th at p. 59; cf. Foley v. Interactive
Data Corp. (1988) 47 Cal.3d 654, 682 (Foley) [reversing an order
sustaining a demurrer because the employee “pleaded facts
which, if proved, may be sufficient for a jury to find an implied-in-
fact contract limiting defendant’s right to discharge him
19
arbitrarily—facts sufficient to overcome the presumption of Labor
Code section 2922”].)
In addition to Drinker Biddle’s offer to provide performance
incentives, Avetisyan points to her year-and-a-half term of
employment at the firm, the allegedly positive feedback she
received for her work in the secondment, Brown’s alleged
promises during his March 2013 meeting with Avetisyan, and
positive feedback she allegedly received for her litigation work
after the meeting. Long-term employment, combined with an
employer’s repeated assurances of job security, can create an
implied agreement the employer will not terminate an employee
without good cause. (See Stillwell v. The Salvation Army (2008)
167 Cal.App.4th 360, 365, 381-382 [substantial evidence
supported the jury’s finding there was an implied agreement
where the employee “presented considerable evidence that [the
employer’s] managers had made repeated ‘assurances of
continued employment’” during the plaintiff’s 30-year
employment]; Pugh v. See’s Candies, Inc., supra, 116 Cal.App.3d
at pp. 316-318, 329 [employee made a prima facie showing of an
implied-in-fact agreement where he worked for the employer for
32 years, received multiple promotions, and received no work
criticism, and where the company had a policy of not terminating
employees without good cause].) On the other hand, isolated
assurances of job security, even when coupled with long-term
employment, are generally not sufficient to create an implied
agreement. (See Carter v. CB Richard Ellis, Inc. (2004)
122 Cal.App.4th 1313, 1327-1328 [no implied agreement where
the employee worked with a company for 30 years and the
employer stated during the employee’s initial interview that, “‘as
long as [she] did a good job and performed [her] responsibilities,
20
[she] would continue to advance with the company’”]; Gould v.
Maryland Sound Industries, Inc., supra, 31 Cal.App.4th at
pp. 1151-1152 [no implied agreement where the employee worked
for a company for three years and a supervisor told him that
employees who complete a 90-day probationary period become
“members” of the company and that the company was looking for
“long-term” employees]; Miller v. Pepsi-Cola Bottling Co. (1989)
210 Cal.App.3d 1554, 1559 [no implied agreement where the
employee worked a company for 11 years, and his employer told
him he would “‘have a job for the rest of your life, as long as you
do your job’”].)
One problem for Avetisyan is that, as she admitted in her
complaint, she did not receive repeated assurances of job
security. Most importantly, before Brown allegedly stated
Drinker Biddle would give Avetisyan a fair chance to succeed and
continue to employ her as long as her work was average,
Eisenberg had told Avetisyan that her employment was not
secure. He stated that litigation was not “working out” for her
and that Drinker Biddle would likely terminate her employment
in two or three months if she insisted on working in the litigation
department. Avetisyan also admitted that her impression after
her conversation with Eisenberg was that she could “join [the]
data privacy [group] or leave.” And she admitted that, in her
only two formal performance reviews, Eisenberg, Davis, and
Caplan all stated she needed to improve. Davis described
Avetisyan’s work as “very mediocre” and said he was concerned
about her “inefficiency,” and Eisenberg said she “failed to show
the analytical heft and research skills necessary to perform the
. . . work that we do at [Drinker Biddle].” (Cf. Stillwell v. The
Salvation Army, supra, 167 Cal.App.4th at pp. 382-383 [employee
21
received positive performance reviews, commendations, and
salary increases during a “long and distinguished career” at a
company]; Pugh v. See’s Candies, Inc., supra, 116 Cal.App.3d at
p. 317 [employer frequently indicated the employee’s job was
secure, while making “no formal or written criticism of [the
employee’s] work”].)
Avetisyan also did not allege she received any promotions
or salary increases during her employment, and she admitted
Drinker Biddle did not give her a discretionary bonus. (Cf. Pugh
v. See’s Candies, Inc., supra, 116 Cal.App.3d at p. 318 [employee
“was never denied a . . . bonus”].) And although Avetisyan
alleged she received some positive feedback, particularly on her
work during the secondment, positive feedback is a “‘natural
occurrence[ ] of an employee who remains with an employer for a
substantial length of time’” (Kovatch v. California Casualty
Management Co. (1998) 65 Cal.App.4th 1256, 1276, disapproved
on another ground in Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 853, fn. 19; accord, Miller v. Pepsi-Cola Bottling
Co., supra, 210 Cal.App.3d at p. 1559) and is not enough, without
more, to overcome the presumption of at-will employment. (See
Guz, supra, 24 Cal.4th at pp. 341-342 [“employee’s mere passage
of time in the employer’s service, even where marked with
tangible indicia that the employer approves the employee’s work,
cannot alone form an implied-in-fact contract that the employee
is no longer at will”]; Kovatch, at p. 1276 [evidence of “positive
performance reviews, commendations, salary increases, and
vague assurances that [the employee] would become a sales
manager [were] not sufficient to create a triable issue of fact”
regarding whether the parties had an implied agreement limiting
the employer’s right to terminate the employee]; see also Guz, at
22
p. 337 [not “every vague combination of Foley factors, shaken
together in a bag, necessarily allows a finding that the employee
had a right to be discharged only for good cause”].) This is
particularly true for Avetisyan, whose reviews were, at best,
mixed.
Brown may have promised during his March 2013 meeting
with Avetisyan that Drinker Biddle would continue to employ her
if she performed as an average associate, and therefore offered a
specific term limiting Drinker Biddle’s termination rights (which
Avetisyan accepted). But an oral agreement to employ someone if
he or she performs as an average employee is not the same as an
implied agreement not to terminate except for good cause, even
though both kinds of agreements may restrict the employer’s
rights to terminate the employment. A factfinder may only find
an implied agreement to such an arrangement if “the employer’s
words or conduct, on which an employee reasonably relied, gave
rise to that specific understanding.” (See Guz, supra, 24 Cal.4th
at p. 342.) Avetisyan did not plead facts showing Brown’s alleged
promise that Drinker Biddle would continue to employ her so
long as she did average work gave rise to any other implied
understanding between the parties.
ii. Avetisyan Did Not Plead Facts Sufficient
To Show an Implied Agreement Drinker
Biddle Would Provide Her Six Months’
Notice
Avetisyan next argues Brown’s promise that Drinker
Biddle would give her “plenty of time” to find a new job created
an implied agreement that Drinker Biddle would give her at least
six months’ notice before terminating her employment. Even
23
where an employment agreement is at-will, an employer may still
breach an implied agreement “to follow certain procedural
policies in the termination process.” (Guz, supra, 24 Cal.4th at
p. 348.)
But even if Brown’s promise that the firm would give
Avetisyan “plenty of time” was sufficiently definite to be
enforceable, Avetisyan did not plead sufficient facts to show
Brown meant at least six months when he used the phrase,
rather than the four months Drinker Biddle provided her.
Avetisyan alleged “Brown understood that [Drinker Biddle]
would provide [her] at least up to six months to secure new
employment.” This conclusory allegation about what Brown
understood was insufficient to show an implied contract. (See
Poseidon Development, Inc. v. Woodland Lane Estates, LLC
(2007) 152 Cal.App.4th 1106, 1114 [“The allegation of the parties’
intent” regarding a contract “is a conclusion of fact, which need
not be accepted for purposes of demurrer.”].)
Nor did Avetisyan’s other allegations suggest Brown
intended to guarantee her six months’ notice in the event Drinker
Biddle terminated her employment. According to Avetisyan,
Eisenberg told her Drinker Biddle’s “typical course” was to
provide associates “two to three months,” not six months, to find
a new position. She did not allege that any other person from
Drinker Biddle told her the firm would give her more time or that
Drinker Biddle had ever provided any other associate or
employee six months’ notice. (See Guz, supra, 24 Cal.4th at
p. 336 [“‘“practices of the employer”’” are relevant to an implied-
in-fact agreement]; Foley, supra, 47 Cal.3d at p. 680 [same].)
Avetisyan also alleged Brown “knew that most firms typically
provide two to six months for associates to seek new
24
employment.” While industry standards are relevant to an
implied agreement (see Guz, at pp. 336-337), Avetisyan did not
allege she and Brown discussed other law firms’ termination
practices, and Drinker Biddle’s decision to provide Avetisyan
more than four (but less than six) months was within this range.
Avetisyan did not allege any facts suggesting Brown, by saying
“plenty of time,” was referring to the high end of the industry
standard—particularly given Eisenberg’s prior statement that
Drinker Biddle typically provided associates only two to three
months.8
3. Promissory Estoppel
“[U]nder the doctrine of promissory estoppel, ‘[a] promise
which the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and
which does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the promise.’”
(Kajima/Ray Wilson v. Los Angeles County Metropolitan
Transportation Authority (2000) 23 Cal.4th 305, 310; accord,
Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016)
8 Avetisyan also alleged that other Drinker Biddle partners
exchanged emails several months after Brown’s alleged promise
that “confirmed [the firm’s] intention to provide Avetisyan
‘6 months’ to secure new employment.” But Avetisyan did not
describe the contents of the emails or explain how they
“confirmed” what Brown or Drinker Biddle intended during
Brown’s discussion with Avetisyan several months earlier. And
she did not allege facts showing Brown conveyed the firm’s
alleged intent to her. (See Guz, supra, 24 Cal.4th at p. 337 [an
implied agreement is demonstrated by the “parties’ conduct
evidencing a similar meeting of minds”].)
25
1 Cal.App.5th 727, 733.) “The purpose of this doctrine is to make
a promise binding, under certain circumstances, without
consideration in the usual sense of something bargained for and
given in exchange.” (Youngman v. Nevada Irrigation Dist.,
supra, 70 Cal.2d at p. 249; see Douglas E. Barnhart, Inc. v. CMC
Fabricators, Inc. (2012) 211 Cal.App.4th 230, 242.) Thus,
“‘promissory estoppel is distinct from contract in that the
promisee’s justifiable and detrimental reliance on the promise is
regarded as a substitute for the consideration required as an
element of an enforceable contract.’” (Douglas E. Barnhart, Inc.,
at p. 242; see Newport Harbor Ventures, LLC v. Morris Cerullo
World Evangelism (2016) 6 Cal.App.5th 1207, 1224.)
Avetisyan’s promissory estoppel cause of action was based
on the same alleged promises by Drinker Biddle on which she
based her cause of action for breach of oral contract. In the trial
court, Drinker Biddle only argued that, because each of Drinker
Biddle’s alleged promises to Avetisyan were too vague and
indefinite to create enforceable contracts, they were not
sufficiently “clear and unambiguous” to create enforceable
promises for purposes of promissory estoppel. (See Flintco
Pacific, Inc. v. TEC Management Consultants, Inc., supra,
1 Cal.App.5th at p. 734 [to state a cause of action for promissory
estoppel, the plaintiff must plead, among other things, “‘“a
promise clear and unambiguous in its terms”’”].) As discussed,
Drinker Biddle is incorrect. Therefore, the trial court erred in
sustaining the demurrer to Avetisyan’s cause of action for
promissory estoppel.
26
4. Breach of the Implied Covenant of Good Faith
and Fair Dealing
Avetisyan makes no effort to explain why the court erred in
sustaining Drinker Biddle’s demurrer to her cause of action for
breach of the implied covenant of good faith and fair dealing. She
states that the allegations in support of this cause of action
“buttressed the contract claims,” but she admits that the cause of
action “was arguably superfluous in light of the . . . contract
causes of action.” Avetisyan has not shown the trial court erred
in sustaining the demurrer to her cause of action for breach of the
implied covenant of good faith and fair dealing. (See Denny v.
Arntz (2020) 55 Cal.App.5th 914, 920 [even when “[o]ur review is
de novo,” the “appellant bears the burden of demonstrating
error”]; Morgan v. Imperial Irrigation Dist. (2014)
223 Cal.App.4th 892, 913 [even where the de novo standard of
review applies, “‘“‘review is limited to issues which have been
adequately raised and briefed’”’”].)
5. Leave To Amend
“A trial court abuses its discretion by sustaining a
demurrer without leave to amend where ‘“there is a reasonable
possibility that the defect can be cured by amendment.”’” (Ko v.
Maxim Healthcare Services, Inc., supra, 58 Cal.App.5th at
p. 1150; see City of Dinuba v. County of Tulare (2007) 41 Cal.4th
859, 865.) “The plaintiff has the burden of proving that an
amendment would cure the defect.” (Campbell v. Regents of
University of California (2005) 35 Cal.4th 311, 320; accord, Ko, at
p. 1150; see Association for Los Angeles Deputy Sheriffs v. County
of Los Angeles (2021) 60 Cal.App.5th 327, 335 [“Plaintiff has the
27
burden to show a reasonable possibility the complaint can be
amended to state a cause of action.”].)
Avetisyan argues the trial court should have granted her
leave to amend because she “could have alleged further details”
about Brown’s statements during their March 2013 meeting,
McTigue’s statements during their August 2013 meeting when he
advised her to seek other employment, and “the related
circumstances and conduct of the parties.” But she does not
explain which details she would add or how additional allegations
would cure the defects in her complaint. Therefore, she has failed
to meet her burden of showing the trial court abused its
discretion in sustaining Drinker Biddle’s demurrer without leave
to amend to her causes of action for breach of written contract,
breach of implied contract, and breach of the implied covenant of
good faith and fair dealing.
B. The Trial Court Erred in Granting Summary
Adjudication on Avetisyan’s Fraud Cause of Action
and in Granting Summary Judgment
1. Standard of Review
A court may grant a motion for summary adjudication
when “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.” (Code Civ. Proc., § 437c,
subd. (c); see Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 618.) A defendant moving for summary
adjudication “‘“‘bears the burden of showing the court that the
plaintiff “has not established, and cannot reasonably expect to
establish,”’ the elements of his or her cause of action.”’” (Ennabe
28
v. Manosa (2014) 58 Cal.4th 697, 705; accord, Mattei v. Corporate
Management Solutions, Inc. (2020) 52 Cal.App.5th 116, 122.)
When a defendant moves for summary adjudication on a cause of
action for which the plaintiff has the burden of proof at trial, the
defendant “must present evidence that either ‘conclusively
negate[s] an element of the plaintiff’s cause of action’ or ‘show[s]
that the plaintiff does not possess, and cannot reasonably obtain,’
evidence necessary to establish at least one element of the cause
of action. [Citation.] Only after the defendant carries that initial
burden does the burden shift to the plaintiff ‘to show that a
triable issue of one or more material facts exists as to the cause
of action . . . .’” (Luebke v. Automobile Club of Southern
California (2020) 59 Cal.App.5th 694, 702-703; accord, Mattei, at
p. 122; see Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v.
Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853-854.) “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; accord,
Welborne v. Ryman-Carroll Foundation (2018) 22 Cal.App.5th
719, 724.)
“We review a grant of summary [adjudication] de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law.” (Mattei v. Corporate Management Solutions, Inc., supra,
52 Cal.App.5th at p. 122; see Regents of University of California
v. Superior Court, supra, 4 Cal.5th at p. 618.) We “‘liberally
constru[e] the evidence in favor of the party opposing the motion
and resolv[e] all doubts about the evidence in favor of the
opponent.’” (Ghazarian v. Magellan Health, Inc. (2020)
29
53 Cal.App.5th 171, 182; see Regents of University of California,
at p. 618.)
2. The Trial Court Erred in Granting Summary
Adjudication on the Cause of Action for Fraud
Avetisyan alleged several theories in support of her cause
of action for fraud, including that Brown falsely promised to
employ her if she performed at the level of an average associate.
“‘Promissory fraud’ is a subspecies of the action for fraud . . . . A
promise to do something necessarily implies the intention to
perform; hence, where a promise is made without such intention,
there is an implied misrepresentation of fact that may be
actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th
631, 638; accord, Austin v. Medicis (2018) 21 Cal.App.5th 577,
588; Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th
1481, 1498.) To prevail on a cause of action for promissory fraud
the plaintiff must show “‘a promise made regarding a material
fact,’” the “‘existence of the intent not to perform at the time the
promise was made,’” and “‘nonperformance by the party making
the promise.’” (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 540;
accord, Rossberg, at p. 1498.) The plaintiff must also show, as
with any fraud claim, the defendant had the “‘intent to defraud,
i.e., to induce reliance,’” “‘justifiable reliance,’” and “‘resulting
damage.’” (Lazar, at p. 638; accord, Robinson Helicopter Co., Inc.
v. Dana Corp. (2004) 34 Cal.4th 979, 990; Kumaraperu v.
Feldsted (2015) 237 Cal.App.4th 60, 70.)
With respect to Brown’s purported promise the firm would
continue to employ Avetisyan if she did average associate work,
Drinker Biddle argued in its motion for summary adjudication
that Avetisyan could not establish that Drinker Biddle made a(n
30
enforceable) promise, that the firm intended not to perform the
alleged promise, or that she justifiably relied on the alleged
promise. Drinker Biddle, however, did not show Avetisyan could
not establish any of these elements.
a. The Promise
Drinker Biddle’s first argument was that Brown’s alleged
promise was too vague and indefinite to create an enforceable
promise. But because, as discussed, Brown’s purported promise
was not too vague or indefinite to support Avetisyan’s cause of
action for breach of oral contract, it was not too vague or
indefinite to support her cause of action for promissory fraud. As
the California Supreme Court explained in Lazar v. Superior
Court, supra, 12 Cal.4th 631, an “action for promissory fraud may
lie where a defendant fraudulently induces the plaintiff to enter
into a contract. . . . [If] the defendant’s promise is ultimately
enforceable as a contract,” the plaintiff “‘has a cause of action in
tort as an alternative at least, and perhaps in some instances in
addition to his cause of action on the contract.’” (Id. at p. 638; see
Agosta v. Astor (2004) 120 Cal.App.4th 596, 603.)
b. Intent To Perform
Drinker Biddle also argued that, even if Brown made the
promise, Avetisyan could not prove he had no intention of
performing it. To attempt to meet its burden on summary
adjudication, Drinker Biddle only argued that Avetisyan “ha[d]
no evidence of fraudulent intent.” But it is not enough for a
defendant, to meet its moving burden on summary adjudication,
to “show that the plaintiff does not possess needed evidence”; “the
defendant must also show that the plaintiff cannot reasonably
31
obtain needed evidence . . . .” (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 854; accord, Chavez v. Glock, Inc. (2012)
207 Cal.App.4th 1283, 1302; see Gaggero v. Yura (2003)
108 Cal.App.4th 884, 891 [“[P]ointing out the absence of evidence
to support a plaintiff’s claim is insufficient . . . . The defendant
must also produce evidence that the plaintiff cannot reasonably
obtain evidence to support his or her claim.”].) Drinker Biddle
did not even argue, much less present evidence, Avetisyan could
not reasonably obtain the evidence needed to establish Brown did
not intend to keep his alleged promise. For this reason alone,
Drinker Biddle failed to meet its burden. (See Nazaretyan v.
California Physicians’ Service (2010) 182 Cal.App.4th 1601, 1614
[“trial court erred by granting the [defendant’s] motion for
summary judgment” where the defendant “did not make or
attempt to make such a showing—that . . . plaintiffs lack and
cannot reasonably obtain evidence” necessary to establish their
claims, and the record was “silent as to whether plaintiffs could
reasonably obtain favorable evidence”].)
Worse, Drinker Biddle did not accurately characterize the
“evidence” it asserted showed Avetisyan did not possess evidence
needed to prove Drinker Biddle did not intend to perform the
alleged promise. (See Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 854 [“[s]ummary judgment law in this state . . .
continues to require a defendant moving for summary judgment
to present evidence, and not simply point out that the plaintiff
does not possess, and cannot reasonably obtain, needed
evidence,” for example, “through admissions by the plaintiff
following extensive discovery”]; Professional Collection
Consultants v. Lauron (2017) 8 Cal.App.5th 958, 965 [same].)
Citing an excerpt from Avetisyan’s deposition testimony, Drinker
32
Biddle claimed the “only evidence” of the firm’s “purported
fraudulent intent [was] that [Drinker Biddle] did not fulfill the
alleged promises.”
It is true that the “mere subsequent failure of
performance,” without more, is insufficient to show a promisor
never intended to perform a promise. (Riverisland Cold Storage,
Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th
1169, 1183; see Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30
[“‘something more than nonperformance is required to prove the
defendant’s intent not to perform his promise’”].) But Avetisyan
never said during her deposition that Drinker Biddle’s failure to
perform the promise was the “only” evidence the firm never
intended to perform. When questioned by counsel for Drinker
Biddle at her deposition about what evidence she possessed, she
discussed several pieces of circumstantial evidence. (See
Riverisland Cold Storage, at p. 1183 [“‘fraudulent intent must
often be established by circumstantial evidence’”]; David v.
Hermann (2005) 129 Cal.App.4th 672, 686 [“proof of intent to
deceive, ‘[f]rom the very nature of the inquiry . . . must
necessarily be largely or wholly circumstantial’”].) For example,
Avetisyan stated that, at the time Brown made the purported
promise, Drinker Biddle had decided to gradually lay off
associates because of the firm’s “economic situation,” but that
Davis and Caplan had a specific case “at its heaviest period” they
needed Avetisyan to work on before the firm could terminate her
employment. She also stated that Tessa Raisin, another Drinker
Biddle associate, told Avetisyan that she (Raisin) had suggested
that Caplan and Davis continue to employ Avetisyan because she
had worked on the case, rather than bring in a different Drinker
Biddle associate to take over. And Avetisyan stated Drinker
33
Biddle produced documents showing the partners discussed
terminating Avetisyan’s employment “well in advance” of
August 22, 2013, the date Drinker Biddle ultimately notified
Avetisyan it was terminating her employment. (See Locke v.
Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 368 [“[f]raudulent
intent . . . may be ‘inferred from such circumstances as
defendant’s . . . failure even to attempt performance’”].) Drinker
Biddle did not address any of this evidence or argue that the
evidence, if Avetisyan possessed it, would still be insufficient to
show Drinker Biddle never intended to perform Brown’s alleged
promise. Nor does Drinker Biddle do so on appeal. Instead,
Drinker Biddle merely repeats its inaccurate characterization of
Avetisyan’s deposition testimony.
c. Justifiable Reliance
To prevail on a cause of action for promissory fraud, a
plaintiff must prove both that “she actually relied” on the false
promise (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088;
accord, OCM Principal Opportunities Fund, L.P. v. CIBC World
Markets Corp. (2007) 157 Cal.App.4th 835, 864) and that the
reliance was “‘“‘justifiable’ . . ., i.e., circumstances were such to
make it reasonable for [the] plaintiff to accept [the] defendant’s
statements without an independent inquiry or investigation.”’”
(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780,
794.) Drinker Biddle argued in the trial court, and argues on
appeal, Avetisyan could not establish she actually relied on
Brown’s promise, that Drinker Biddle would continue to employ
her if her performance was average, because Avetisyan admitted
she talked to recruiters and reviewed job postings “as early as
March 2013.” Drinker Biddle relied in its motion on excerpts of
Avetisyan’s deposition testimony. But again, the testimony
34
Drinker Biddle submitted did not support its argument.
Nowhere in the deposition testimony submitted by Drinker
Biddle did Avetisyan state she had talked to recruiters or
reviewed job postings by March 2013.9
Drinker Biddle also submitted evidence that in July 2013
Avetisyan sent applications to other law firms and told those
firms she “plan[ned] to make a ‘final’ lateral move”—a fact
Avetisyan did not dispute. While this may have been sufficient
for Drinker Biddle to meet its initial burden on summary
judgment to show Avetisyan was no longer relying on Brown’s
alleged promise by July, it does not show she did not rely on his
promise between March, when Brown allegedly made the
promise, and July, when she submitted the applications. Drinker
Biddle contends “any such reliance was, at best, temporary and
limited.” Maybe so. But Drinker Biddle does not cite any
authority suggesting that a plaintiff cannot prevail on a
promissory fraud cause of action simply because the plaintiff
relied only temporarily on the alleged promise, so long as the
plaintiff’s temporary reliance results in damages.
And even if Drinker Biddle met its initial burden to show
Avetisyan did not actually or justifiably rely on Brown’s alleged
promise, Avetisyan created triable issues of material fact on both
issues. Drinker Biddle contended any reliance on Brown’s
promise was not justifiable because Avetisyan admitted in her
complaint that, one week before Brown made the promise,
9 Avetisyan did state that at some point between March 21
and August 22 she had “some communication with recruiters”
and considered other job opportunities, but she did not specify
whether those communications were nearer to March 21 or
August 22.
35
Eisenberg told Avetisyan that her future in litigation was not
looking good and that the firm would probably terminate her
employment if she insisted on working in the litigation
department. Drinker Biddle also cited Avetisyan’s deposition
testimony admitting she had reason to distrust Drinker Biddle by
the time Brown made the alleged promise. But in opposition to
the motion, Avetisyan explained in her declaration that while she
distrusted Caplan, Davis, and Eisenberg, the partners with
whom she directly worked, she did not distrust Brown, the chair
of the litigation group, or other Drinker Biddle partners. Drinker
Biddle does not explain why Avetisyan could not have trusted
Brown and justifiably relied on his assurances.
Avetisyan also explained in her declaration that, although
she submitted some applications to law firms before August 22,
2013, she did not “conduct a diligent and thorough search for
employment prior to” that date. She also submitted her
deposition testimony to the same effect, as well as her deposition
testimony that she did not begin looking for in-house positions
until “at least a month or two after” Drinker Biddle informed her
it was terminating her employment.
Eisenberg’s statement that litigation was not looking good
for Avetisyan, and Avetisyan’s admission that she did not trust
Caplan, Davis, and Eisenberg, may be favorable evidence for
Drinker Biddle. But “[q]uestions of materiality and justifiable
reliance constitute questions of fact which cannot be resolved on
summary adjudication, unless, . . . ‘the undisputed facts leave no
room for a reasonable difference of opinion.’” (West Shield
Investigations & Sec. Consultants v. Superior Court (2000)
82 Cal.App.4th 935, 957; see Orozco v. WPV San Jose, LLC (2019)
36 Cal.App.5th 375, 391 [“‘“‘Except in the rare case where the
36
undisputed facts leave no room for a reasonable difference of
opinion, the question of whether a plaintiff’s reliance is
reasonable is a question of fact.’”’”].) There was room for a
difference of opinion here. A factfinder could reasonably find,
based on Avetisyan’s explanation in her declaration, that she
believed Brown, the chair of Drinker Biddle’s litigation group,
spoke on behalf of the firm, even if Brown’s statements were
inconsistent with Eisenberg’s previous statements. A factfinder
could reasonably find Avetisyan, given her limited interaction
with Brown, had no reason to distrust him. And a factfinder
could reasonably find that Avetisyan relied, at least temporarily,
on Brown’s promise and refrained from seeking other
employment, even if she started submitting applications to other
law firms a few months after her meeting with Brown. (See Palm
Springs Villas II Homeowners Assn., Inc. v. Parth (2016)
248 Cal.App.4th 268, 278-279 [“‘declarations of the party
opposing summary judgment . . . are liberally construed to
determine the existence of triable issues of fact’”]; Barry v. Turek
(1990) 218 Cal.App.3d 1241, 1246 [in deciding whether the
plaintiff has created a triable issue of fact, courts “construe
liberally” the plaintiff’s declarations].) It is up to the factfinder to
determine whether Avetisyan’s version of events is true.
d. Damages
Drinker Biddle argues on appeal that Avetisyan cannot
establish any nonspeculative injuries arising from Brown’s
alleged promise. The problem for Drinker Biddle is it did not
move for summary adjudication on this ground. Drinker Biddle’s
motion for summary adjudication included a section titled,
“Avetisyan cannot establish that her purported reliance on any of
37
[Brown’s] statements proximately caused her any injury.” But in
that section, Drinker Biddle addressed only Brown’s alleged
promise that Drinker Biddle would provide her six months’ notice
in the event it terminated her employment, not his alleged
promise that Drinker Biddle would employ her so long as she
performed as an average associate. Drinker Biddle did not meet
its burden to show Avetisyan did not have and could not
reasonably obtain evidence of her alleged damages.10
3. The Trial Court Did Not Err in Granting
Summary Adjudication on the Cause of Action
for Negligent Misrepresentation
“The tort of negligent misrepresentation” is “a species of
the tort of deceit” that “does not require intent to defraud but
only the assertion, as a fact, of that which is not true, by one who
has no reasonable ground for believing it to be true.” (Conroy v.
Regents of University of California (2009) 45 Cal.4th 1244, 1255;
accord, Borman v. Brown (2021) 59 Cal.App.5th 1048, 1060.)
10 Because Drinker Biddle “treated the [fraud] cause of action
as a single claim and sought summary adjudication of the
entirety of this claim” (Rojas-Cifuentes v. Superior Court (2020)
58 Cal.App.5th 1051, 1061), rather than seeking summary
adjudication on distinct parts of the claim, we do not consider
whether Avetisyan could prevail on her other theories of fraud.
(See id. at p. 1058 [“a motion seeking summary adjudication of an
entire cause of action may not be granted unless ‘it completely
disposes of [the] cause of action’”]; see also Code Civ. Proc.,
§ 437c, subd. (f).) There is no suggestion in the record the parties
filed a stipulation pursuant to Code of Civil Procedure section
437c, subdivision (t), for the court to hear a motion for summary
adjudication of an issue that did not completely dispose of the
fraud cause of action.
38
Avetisyan’s cause of action for negligent misrepresentation is
based on alleged promises made by Drinker Biddle before
Avetisyan’s secondment, as well as the alleged promises by
Brown during their March 2013 meeting.
Drinker Biddle relies on Tarmann v. State Farm Mut. Auto
Ins. Co. (1991) 2 Cal.App.4th 153, where a person involved in a
car accident asserted a cause of action against her insurer for
negligent misrepresentation on the ground that the insurer had
failed to fulfill its promise to pay for the damage to the car. (See
id. at pp. 156, 158.) In affirming an order sustaining the
insurer’s demurrer, the court in Tarmann held that “an action
based on a false promise is simply a type of intentional
misrepresentation, i.e., actual fraud,” because a “‘false promise is
[only] actionable on the theory that a promise implies an
intention to perform, that intention to perform or not to perform is
a state of mind, and that misrepresentation of such a state of
mind is a misrepresentation of fact.’” (See id. at pp. 158-159; see
5 Witkin, California Procedure (5th ed. 2008) Pleading, § 721.)
The court in Tarmann “decline[d] to establish a new type of
actionable deceit: the negligent false promise.” (Tarmann, at
p. 159.) We agree a plaintiff cannot maintain a negligent
misrepresentation cause of action for an unfulfilled, “negligently”
made promise. Therefore, the trial court did not err in granting
summary adjudication on this purported cause of action.
Avetisyan contends her negligent misrepresentation cause
of action is also based on Brown’s negligent misrepresentation of
a fact—namely, Brown represented to Avetisyan that he had
obtained Caplan’s and Davis’s consent to give Avetisyan a fair
chance to succeed in the litigation group, when Brown in fact had
not obtained such consent from Caplan and Davis. Avetisyan did
39
not allege this theory in her complaint, however, and she did not
seek leave to amend her complaint in opposition to the motion for
summary adjudication. (See Ignat v. Yum! Brands, Inc. (2013)
214 Cal.App.4th 808, 820 [“In a motion for summary judgment,
the complaint limits the issues. A plaintiff opposing such a
motion cannot defeat it by proffering new, unpleaded theories or
issues.”]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242,
1258 [“The complaint limits the issues to be addressed at the
motion for summary judgment. The rationale is clear: It is the
allegations in the complaint to which the summary judgment
motion must respond.”].) Avetisyan cannot use this theory to
defeat Drinker Biddle’s motion for summary adjudication on the
negligent misrepresentation cause of action.11
11 In any event, had Avetisyan alleged this theory, it would
fail. Avetisyan asserted her negligent misrepresentation cause of
action against Drinker Biddle, not Brown individually. She now
contends Drinker Biddle (through Brown) misrepresented that
the firm obtained the consent of its partners (Caplan and Davis)
to give her a fair chance to succeed. But Drinker Biddle is
generally deemed to have knowledge of the intentions of its
partners. (See Civ. Code, § 2332 [“As against a principal, both
principal and agent are deemed to have notice of whatever either
has notice of, and ought, in good faith and the exercise of
ordinary care and diligence, to communicate to the other.”].)
Therefore, whether it was Brown, Caplan, or Davis who did not
have the requisite intent to fulfill the promise, Avetisyan’s claim
is still based on an alleged promise made by Drinker Biddle
without intent to perform, i.e., promissory fraud.
40
C. Avetisyan Has Not Shown the Trial Court Abused Its
Discretion in Denying Her Motion To Compel
Avetisyan argues the trial court abused its discretion in
denying her motion to compel further responses to “more than
one-hundred discovery requests” and ruling on Drinker Biddle’s
motion for summary judgment “without first hearing
[Avetisyan’s] motion to compel [Drinker Biddle’s] further
appearance for deposition and (further) responses to deposition
questions.” There was no abuse of discretion here.
“‘[I]t is appellant’s burden to affirmatively show error.
[Citation.] To demonstrate error, appellant must present
meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error.’”
(Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457;
accord, Menges v. Department of Transportation (2020)
59 Cal.App.5th 13, 27.) In addition, where, as here, the appellant
challenges the trial court’s discovery order following judgment,
the appellant “must show not only that the trial court erred, but
also that the error was prejudicial.” (Lickter v. Lickter (2010)
189 Cal.App.4th 712, 740; see Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 800 [there is no “presumption of injury from
error,” and the “appellate court [must] examine the evidence to
determine whether the error did in fact prejudice” the
appellant].)
Avetisyan does not identify any of the discovery requests at
issue in her motion to compel, nor does she explain the substance
of her discovery. She does not identify which witnesses she
sought to compel the deposition of or the written discovery she
sought to compel further responses to. She does not cite relevant
authority governing the trial court’s purported errors in denying
41
and continuing her motions to compel. By failing to adequately
identify the issues or to provide meaningful legal analysis, she
has forfeited any contention the trial court abused its discretion.
(See People ex rel. Harris v. Aguayo (2017) 11 Cal.App.5th 1150,
1172 [“‘We need not address points in appellate briefs that are
unsupported by adequate factual or legal analysis.’”].)
Nor has Avetisyan shown that, even if the trial court
abused its discretion, it is reasonably probable the court would
have denied Drinker Biddle’s motion for summary judgment (or
its motion for summary adjudication on her cause of action for
negligent misrepresentation). (See MacQuiddy v. Mercedes-Benz
USA, LLC (2015) 233 Cal.App.4th 1036, 1045 [“we need not
decide if the trial court’s discovery rulings were an abuse of
discretion because, even assuming they were, [the appellant] has
failed to demonstrate it is reasonably probable the outcome of the
trial would have been more favorable to him had the trial court
granted his motion to compel”]; Lickter v. Lickter, supra,
189 Cal.App.4th at p. 740 [“to show prejudicial error in the denial
of their motion to compel, [appellants] would have to persuade us
that had the trial court compelled [the defendant] to answer the
deposition questions . . . it is reasonably probable her answers
would have constituted, or somehow led to, admissible evidence
sufficient to raise a triable issue of fact”].) Avetisyan contends
that, had the trial court granted her motions to compel, she
would have obtained additional evidence in support of her fraud
cause of action. But we are reversing the order granting Drinker
Biddle’s motion for summary adjudication on the fraud cause of
action, and Avetisyan does not argue the trial court’s orders on
her discovery motions prejudiced her with respect to the
negligent misrepresentation cause of action.
42
DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its order sustaining the demurrer by Drinker Biddle
without leave to amend, and to enter a new order overruling the
demurrer to Avetisyan’s causes of action for breach of oral
contract and promissory estoppel and sustaining the demurrer to
her causes of action for breach of written contract, breach of
implied contract, and breach of the implied covenant of good faith
and fair dealing without leave to amend. The trial court is also
directed to vacate its order granting Drinker Biddle’s motion for
summary judgment and to enter a new order denying the motion
for summary adjudication on the fraud cause of action, granting
the motion for summary adjudication on the negligent
misrepresentation cause of action, and denying the motion for
summary judgment. Avetisyan’s request for a new trial judge is
denied. Avetisyan is to recover her costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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