Avetisyan v. McTigue

ANI A. AVETISYAN, Plaintiff and Appellant, v. MICHAEL W. MCTIGUE JR., et al., Defendants and Respondents.

B275931

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

March 27, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

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

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

Drinker Biddle & Reath, Alan J. Lazarus, Kate S. Gold and Philippe A. Lebel for Defendants and Respondents.

____________________

INTRODUCTION

Ani Avetisyan, a former associate at the law firm of Drinker Biddle & Reath LLP, sued the firm for, among other things, breach of contract, wrongful discharge, and fraud, after the firm terminated her employment in December 2013. Avetisyan also asserted causes of action against four of the firm's partners, Michael W. McTigue Jr., Sheldon Eisenberg, George T. Caplan, and Kristopher S. Davis (collectively, the partners), for libel, slander, intentional and negligent interference with prospective economic relations, intentional interference with contractual relations, and violation of Labor Code section 1050.

Avetisyan appeals from the judgment dismissing her complaint against the partners after the trial court sustained their demurrer to each cause of action against the partners—and most of the causes of action against the firm—without leave to amend. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND¹

A. Avetisyan Starts at the Firm

Avetisyan began her legal career in 2009 as an associate at Sidley Austin. Two years later, Avetisyan decided to make a lateral move, and in February 2012 Drinker Biddle, aPhiladelphia-based law firm with offices nationwide, hired her as a litigation associate in its Los Angeles office.

Avetisyan worked primarily on litigation matters with Caplan and Davis, in coordination with another attorney, Paul Gelb, and her work was "apparently well received." With Caplan's permission, Avetisyan also worked on an appellate matter for Eisenberg, who initially was not entirely satisfied with her work, but, after providing guidance, was impressed with her revised work product.

Things began to go awry two months after she started at Drinker Biddle, when the firm asked Avetisyan to interview Tessa Raisin, a lateral associate candidate with one more year of experience than Avetisyan. Avetisyan reported that Raisin was too informal during the interview and Avetisyan recommended against hiring Raisin. Caplan and Davis did not appreciate Avetisyan's review of Raisin. Ultimately, the firm hired Raisin, at the insistence of Caplan and Davis, for whom she would work exclusively, along with Gelb. Meanwhile, the firm asked Avetisyan to take on a part-time, in-house secondment assignment with one of the firm's data privacy clients.² Her secondment assignment went well, and the firm's data privacy team encouraged Avetisyan to consider joining their practicegroup full time. The data privacy client also offered Avetisyan a job. At the time, however, Avetisyan felt secure in her position with the firm and the litigation group.

B. The Firm Reviews Avetisyan's Performance

In November 2012 Avetisyan received her first annual performance evaluations, some of which were positive and extolled Avetisyan's professionalism and "her high level of competency" in handling her secondment. However, the reviews by Caplan, Davis, and Eisenberg—on which Avetisyan based her libel cause of action—took her by surprise. Avetisyan claimed the evaluations by Caplan and Davis were "unfair and inaccurate" and were in retaliation for her recommendation against hiring Raisin, whom Caplan and Davis, for "various personal and business reasons," sought to protect. Avetisyan alleged Eisenberg's review, while admittedly "accurate to some extent," was unfair, tailored to support Caplan's and Davis's reviews, and intended to motivate Avetisyan either to join the firm's data privacy group or to accept the client's job offer.

Avetisyan had her associate review meeting with the chair of the litigation practice group, Wilson Brown. Brown told her "he did not read or perceive the reviews as negatively as Avetisyan did" and "indicated that there was no issue, as far as he was concerned, that could not be resolved." Caplan and Davis, however, began to exclude Avetisyan from case-related discussions and strategy sessions, in part because Avetisyan, unlike Raisin, did not approve of using profane language or participating in racy conversations about personal matters. Avetisyan also believed Caplan and Davis excluded her fromcertain case meetings and discussions because they knew she would not follow improper instructions or engage in misconduct.

In March 2013 Avetisyan expressed her interest in joining the firm's data privacy group to one of its members, who responded enthusiastically. That same day, Avetisyan spoke with Eisenberg about her future in the litigation department, and he encouraged her to pursue the data privacy opportunity. Eisenberg warned Avetisyan that her interim performance review, scheduled for the following week, was not going to be entirely positive and that he felt it was not working out for her in the litigation department.

Avetisyan's interim performance reviews were mixed and included some positive evaluations, particularly in connection with her data privacy secondment. While Caplan and Davis did not provide reviews, Avetisyan claimed Eisenberg's review was "even more unfair, disingenuous, and tailored to serve the interests of Caplan and Davis than before." At her interim review meeting with Brown and Eisenberg, Brown stated it was his hope, and the firm's goal, that Avetisyan would remain at the firm and succeed long term, despite Eisenberg's previous intimations she should start looking for a new job or move out of the litigation group. Avetisyan remained in the litigation group for the next five months, believing Caplan and Davis viewed her work favorably.

C. The Firm Decides To Make a Change

In August 2013 Eisenberg and McTigue, the new chair of the litigation group, met with Avetisyan and delivered an unexpected message: The firm wanted her to find new employment by the end of the year, but would be flexible if sheneeded more time. Eisenberg and McTigue told her certain lawyers in the firm "continued to lack confidence in her ability to handle the work they would want to give her" and "did not feel 'comfortable' giving her the kind of work they do." Avetisyan thought these reasons were false. She believed the firm was firing her because the firm wanted to appease Caplan and Davis, did not have enough billable work to support two litigation associates and preferred to keep Raisin, and wanted to avoid bad publicity for laying off associates.

In mid-December 2013 McTigue informed Avetisyan the firm would officially terminate her employment at the end of the year, even though she was in the middle of scheduling interviews with other firms. As a result, at her interviews in January 2014 Avetisyan had to inform prospective employers that the firm had ended her employment as of December 31. She also had to repeat the firm's stated reasons for the termination of her employment: certain partners lacked "confidence in," or were not comfortable with, having her work on their cases. Avetisyan believed the firm, or certain lawyers in the firm, repeated those reasons to prospective employers. Avetisyan ultimately received one job offer, which she declined because the salary was lower, the position required a great deal of travel, and she did not have experience in the practice area. On July 14, 2014 Avetisyan commenced a solo law practice.

D. Avetisyan Decides To Sue; The Trial Court Dismisses Her Case Against the Partners

Two days later Avetisyan filed this action. Her original complaint contained 16 causes of action, eight of which were against the firm only, including breach of contract, fraud,promissory estoppel, and wrongful discharge. The other eight causes of action were against the firm and one or more of the firm's partners, including for libel, slander, intentional interference with prospective economic relations, negligent interference with prospective economic relations, intentional interference with contract, and violation of Labor Code section 1050.³ The defendants demurred to all causes of action against the partners, and most of the causes of action against the firm, and filed a motion to strike certain allegations in Avetisyan's complaint. The trial court sustained the demurrer to all causes of action with leave to amend and granted the motion to strike.

Avetisyan's operative first amended complaint contained some new factual allegations but also reasserted allegations the trial court had stricken from the original complaint. The defendants again demurred to all causes of action against the partners and all but two causes of action against the firm, and again moved to strike the portions of Avetisyan's complaint they had previously moved successfully to strike.

The trial court sustained the demurrer without leave to amend and granted the motion to strike. Avetisyan timelyappealed from the trial court's judgment of dismissal of Avetisyan's complaint against the partners.⁴

DISCUSSION

A. Standard of Review

"In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory." (T.H. v. Novartis Pharmaceuticals Corporation (2017) 4 Cal.5th 145, 162; accord, Association of Irritated Residents v. Department of...