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On Behalf of | May 6, 2020 | Firm News

This is an appeal from judgment on the pleadings entered by the trial court in favor of defendant Tucker Ellis, LLP (Tucker Ellis), a law firm. Plaintiff Evan C. Nelson, an attorney, brought this tort action against his former employer Tucker Ellis based on its production of materials in response to a valid out-of-state subpoena.

According to Nelson, these materials were his privileged and confidential work product communications not subject to disclosure without his consent. He asserts causes of action for negligence, invasion of privacy, intentional and negligent interference with contract, intentional and negligent interference with prospective economic advantage, and conversion.

On appeal, Nelson seeks reversal of the judgment, arguing the trial court prejudicially erred when finding each of his causes of action barred under the law of the case as determined by this court in Tucker Ellis LLP v. Superior Court (2017) 12 Cal.App.5th 1233 (Tucker Ellis III). In Tucker Ellis III, we held inter alia that Tucker Ellis, not Nelson, was the  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, the California Court of Appeal affirmed the judgment.

“Where an appellate court states in its opinion a principle or rule of law necessary to its decision, that principle or rule becomes the law of the case. (Clemente v. State of California (1985) 40 Cal.3d 202, 211 [219 Cal.Rptr. 445, 707 P.2d 818].) The law of the case must be adhered to both in the lower court and upon subsequent appeal. (Ibid.)

This is true even if the court that issued the opinion becomes convinced in a subsequent consideration that the former opinion is erroneous. (Ibid.)” (Santa Clarita Organization for  Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156.) “ ‘ “The rule of ‘law of the case’ generally precludes multiple appellate review of the same issue in a single case. . . . [Citations.]” ’ [Citation.] [¶] . . . [¶] We will apply the law of the case doctrine where the point of law involved was necessary to the prior decision and was ‘ “actually presented and determined by the court.” ’ [Citation].” (People v. Gray (2005) 37 Cal.4th 168, 196–197.)

This doctrine also applies where the prior appeal is from a decision short of a full trial. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 14–15.) Where there is no substantial difference between the evidence presented by the parties in connection with the previous appellate decision and the present appeal, the court’s previous decision becomes the law of the case. (Ibid.; see Weightman v. Hadley (1956) 138 Cal.App.2d 831, 841 [“law of the case” applies when “the issues and facts found remain substantially the same, and has no application where the facts alleged and found are materially different from those considered on a former appeal”].)

Under the Civil Code section 47, subdivision (b)  privilege, which courts interpret broadly, defendants are immunized from tort liability for any communication “ ‘(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’ ” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241; see Silberg v. Anderson (1990) 50 Cal.3d 205, 216 [the litigation privilege is absolute in nature, applying “to all publications, irrespective of their maliciousness”] (Silberg).) The primary purpose of this privilege is “ ‘to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.’ ” (Action Apartment Assn., Inc., supra, at p. 1241.)

(See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [“plaintiff has the burden of proving that an amendment would cure the defect”].)

The judgment was affirmed.

See Nelson v. Tucker Ellis, LLP.

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