Filed 4/2/21 Avetisyan v. Drinker Biddle & Reath CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANI AVETISYAN,

Plaintiff and Appellant,

v.

DRINKER BIDDLE & REATH LLP,

Defendant and Respondent.

 B294671

 (Los Angeles County

Super. Ct. No. BC551859)

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.

_______________________
2

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. 
3

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.].)
4

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.” 
5

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. 
6

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. 
7

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. 
8

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 
9

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. 
10

“‘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 
11

344, 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, 
12

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 
13

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.”].)
14

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
15

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 
16

at 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 
17

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.) 
18

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 
19

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 atwill. (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-infact contract limiting defendant’s right to discharge him 
20

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, 
21

[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 
22

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 
23

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 
24

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 impliedin-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 
25

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”].)
26

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.
27

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 
28

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 
29

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) 
30

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 
31

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 
32

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 
33

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 
34

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 
35

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. 
36

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 
37

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 
38

[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.
39

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 
40

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.
41

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 
42

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. 
43

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.