Judge: Maurice A. Leiter, Case: 19STCV32486, Date: 2025-06-10 Tentative Ruling

Case Number: 19STCV32486    Hearing Date: June 10, 2025    Dept: 54

Hearing Date: June 10, 2025

Department 54, Judge Maurice A. Leiter

Motion for Summary Adjudication

Moving Party: Defendants Walzer Melcher LLP, Christopher C. Melcher, and Peter M. Walzer

Responding Party: Plaintiff Edward M. Lyman III

T/R:     DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION OF THE FOURTH, NINTH, AND TENTH CAUSES OF ACTION IS GRANTED.

DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION OF THE REMAINING CAUSES OF ACTION IS DENIED.

DEFENDANTs TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On March 2, 2020, Plaintiff Edward Lyman III filed the operative first amended complaint against Defendants Walzer Melcher LLP, Peter Walzer, and Christopher Melcher, asserting thirteen causes of action including wrongful termination, retaliation, breach of contract and PAGA claims. Plaintiff was employed as an attorney at the Defendant law firm. Plaintiff alleges he was terminated for complaining about violations of the State Bar Act, the State Bar Rules, the Rules of Professional Conduct, the Business and Professions Code, the Penal Code, and FEHA and for his disability.

EVIDENCE OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q).) Defendants’ objections to Plaintiff’s declaration are OVERRULED.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. First Cause of Action for Whistleblower Retaliation and Third Cause of Action for Wrongful Termination in Violation of Public Policy

Defendants assert that the claims for whistleblower retaliation and wrongful termination fail because they are barred by the attorney-client privilege. Evidence Code § 952 states: "As used in this article, 'confidential communication between client and lawyer' means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship."

Defendants contend that the claims are predicated on Plaintiff’s complaint about the firm’s handling of a marriage dissolution action and must be evidentiarily supported by attorney-client communications. In opposition, Plaintiff asserts that the claims are based on several complaints that ranged from complaints about the firm having charged unconscionable fees, a named partner accepting gifts from an opposing party, gross mismanagement, patterns of attorney misconduct that was harming their clients, and wage discrepancies between male and female paralegals. These do not all implicate the attorney-client privilege. For example, accepting a gift from an opposing party is not a confidential communication between and attorney and client. Nor are complaints about internal employment practices.

Defendants have failed to meet their burden to establish that no triable issue of fact exists as to the claims for retaliation and wrongful termination. Defendants’ motion for summary adjudication of the claims for retaliation and wrongful termination is DENIED.

B. Fourth Cause of Action for Failure to Prevent Disability Discrimination, Harassment and Retaliation

Defendant moves for summary adjudication of the claim for failure to prevent discrimination, harassment and retaliation based on disability discrimination in the fourth cause of action. This cause of action alleges Defendants failed to prevent discrimination, harassment and retaliation based on “gender, sex, and/or disability…" Defendants represent that Plaintiff testified that the allegation that he was subjected to discrimination, harassment, and/or retaliation based on "disability" was a mistake and that he is not claiming disability discrimination in this lawsuit. Plaintiff concedes this opposition.

Defendants’ motion for summary adjudication of the claim for failure to prevent discrimination, harassment and retaliation based on disability is GRANTED.

C. Sixth Cause of Action for Labor Code Violations and Seventh Cause of Action for PAGA Penalties

Defendants move for adjudication of the sixth and seventh causes of action on the ground that they are barred by the applicable statutes of limitation.

Defendants assert that the claims for violations of Labor Code §§ 204 and 226.8 may only be enforced via PAGA and are subject to the PAGA one-year statute of limitation (plus tolling for the sixty-five-day notice period to the LWDA). Plaintiff was terminated on March 15, 2018, making the PAGA deadline May 19, 2019. Plaintiff provided timely notice to the LWDA on January 29, 2019 but did not file this action until September 12, 2019.

In opposition, Plaintiff argues that the strict statute of limitation listed in Labor Code 2699 was not enacted until 2024. Prior to this enactment, the Courts of Appeal interpreted the PAGA statute of limitation to continue past the date of the individual Plaintiff’s termination because the other employees remained employed and continued to experience violations. (See Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924.) “Assembly Bill No. 2288 was adopted, in part, to supersede Johnson, supra, 66 Cal.App.5th 924, 281 Cal.Rptr.3d 478 by permitting only those who suffer an alleged Labor Code violation during the one-year statute of limitations to bring a representative PAGA claim. (See Sen. Com. on Judiciary, Rep. on Assem. Bill No. 2288 (2023-2024 Reg. Sess.) as amended June 21, 2024, pp. 15-16.)” (Osuna v. Spectrum Sec. Servs., Inc. No. 2D CIV. B338047, 2025 WL 1501995, at *5 (Cal. Ct. App. May 27, 2025)

As the statute of limitation listed by Defendants was not in effect at the time Plaintiff filed their LWDA notice and this action, the Court cannot grant summary adjudication on this basis.

Defendant’s motion for summary adjudication of the Labor Code and PAGA claims is DENIED.

D. Ninth and Tenth Causes of Action for Breach of Express Oral Contract and Breach of Implied-In-Fact Contract

Defendants argue that ninth and tenth cause of action fail because there was no implied-in-fact contract to terminate Plaintiff only for cause. California courts analyze the employment relationship based on the "totality of the circumstances" and have identified four factors that indicate whether an implied contract to terminate for good cause has been established: (1) personnel policies or practices of the employer; (2) the employee's longevity of service; (3) actions or communications by the employer reflecting assurance of continued employment; and (4) practices of the industry in which the employee is engaged. (Pugh v. See's Candies, Inc. (1991) 116 Cal.App.3d 311, 327.)

Defendants assert that no one at the firm implied that termination was anything but at-will, as stated in the employee handbook. In opposition, Plaintiff concedes that the ninth cause of action lacks merit. Plaintiff states that there is evidence that supports an implied-in-fact contract but fails to list, cite, or describe this evidence in the points and authorities.

Defendants’ motion for summary adjudication of the ninth and tenth causes of action is GRANTED.

E. Eleventh Cause of Action for Defamation

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.) 

Defendants argue that the eleventh cause of action fails because it is barred by the litigation privilege. Civ. Code section 47 provides in relevant part:

A privileged publication or broadcast is one made:

(a) In the proper discharge of an official duty.

(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other procedure authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure….

(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the communication….

Plaintiff alleges Defendants after his termination "sent a letter containing false and fraudulent statements" about him to the State of California Employment Development Department (the "EDD"), in response to his application for unemployment insurance benefits. In opposition, Plaintiff disputes that the EDD application is an “official proceeding” under the litigation privilege. Plaintiff presents evidence showing there are no required hearings, and the parties are not subject to the penalty of perjury. Defendants do not present authority applying the litigation privilege to EDD applications. Plaintiff has established a triable issue of fact as to defamation.

Defendants’ motion for summary adjudication of the eleventh cause of action is DENIED.

F. Punitive Damages

Defendants assert that the only actionable conduct against Defendants for punitive damages is the claim for defamation. As stated, Plaintiff has established a triable issue of fact as to defamation.

Defendants’ motion for summary adjudication of the claim for punitive damages is DENIED.