Nelson v. Tucker Ellis, LLP

48 Cal.App.5th 827

262 Cal.Rptr.3d 250

Evan C. NELSON, Plaintiff and Appellant,

v.TUCKER ELLIS, LLP, Defendant and Respondent.

A153661

Court of Appeal, First District, Division 3, California.

Filed May 5, 2020

Kerr & Wagstaffe, San Francisco, Wagstaffe, von Loewenfeldt, Busch & Radwick, James M. Wagstaffe, Michael von Loewenfeldt, San Francisco, Frank Busch ; Lincoln Law, Pleasant Hill, and Tessa Mayer Santiago for Plaintiff and Appellant.

Long & Levit, Joseph P. McMonigle, Kathleen M. Ewins, David S. McMonigle and Jonathan Rizzardi, San Francisco, for Defendant and Respondent.

Jackson, J.

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, 220 Cal.Rptr.3d 382 ( Tucker Ellis III ). In Tucker Ellis III , we held inter alia that Tucker Ellis, not Nelson, was the 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 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 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, 220 Cal.Rptr.3d 382.)

As discussed in more depth in our previous decision ( Tucker Ellis III , supra , 12 Cal.App.5th at p. 1238, 220 Cal.Rptr.3d 382 ), 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. Tucker Ellis again appealed, and we again affirmed. ( Nelson v. Tucker Ellis LLP, 2015 WL 7568165 (Nov. 24, 2015, A142731) [nonpub. opn.]; see Tucker Ellis III , supra , 12 Cal.App.5th at p. 1239, 220 Cal.Rptr.3d 382.)

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, 220 Cal.Rptr.3d 382.)

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, 220 Cal.Rptr.3d 382.) We therefore let issue a peremptory writ of mandate directing the trial court to vacate its summary adjudication order and enter a new order consistent with our decision. ( Id . at p. 1248, 220 Cal.Rptr.3d 382.)

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...