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Aviel v. Sorgen2/22/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
David Aviel appeals from a judgment entered in favor of his former attorney, Michael S. Sorgen, after the court granted Sorgen's motion for summary judgment with respect to Aviel's complaint alleging causes of action for professional malpractice, breach of fiduciary duty, breach of ethical duties, breach of contract and intentional infliction of emotional distress, arising out of Sorgen's representation of Aviel in federal and state litigation against Aviel's employer.
We shall affirm the judgment.
FACTS
The causes of action alleged in Aviel's complaint against Sorgen arose out Sorgen's representation of Aviel in a federal and state lawsuit against Aviel's employer, California State University at Hayward, and Maurice Dance, Wade Morehouse, Bruce McNab, and Richard Zock, (hereafter "University") stemming from disciplinary action that the University attempted to take against Aviel when, in the Spring of 1990, Aviel accepted a temporary teaching assignment in Israel. Aviel successfully grieved the University's decision to demote him and dock his pay, and obtained two arbitration rulings in his favor in August 1991, and September 1992. In the meantime, Aviel, on March 15, 1991, hired Sorgen to file a complaint on his behalf.
On June 14, 1991, Sorgen filed a complaint against the University, in federal court, generally alleging that the defendant attempted to demote Aviel, spread false charges that he had engaged in improper conduct, arbitrarily denied his "research grants and other necessary academic assistance, and [took other actions in an effort to damage Aviel's] academic career and reputation." The complaint further alleged that these actions were taken against him in retaliation for a prior lawsuit he had filed against the University. Based upon these acts, the complaint alleged a claim for violation of Aviel's First Amendment rights under section 1983 of title 42 of the United States Code, and alleged causes of action under state law, for defamation, breach of contract, breach of good faith and fair dealing, interference with contractual relations, interference with prospective advantage, invasion of privacy, intentional and negligent infliction of emotional distress, and injunctive relief.
On August 14, 1991, in response to the University's motion, Sorgen stipulated to an order dismissing the causes of action for breach of contract, and breach of the covenant of good faith and fair dealing based upon his research and conclusion that public employment is governed by statute, not contract. Sorgen also took the depositions of Jay Tontz, Bruce McNab, Maurice Dance, Wade Morehouse, Richard Zock, Marion Snyder, and Professor Jack Kilgour, and conducted some other discovery. On March 4, 1992, the court granted the University's motion for summary judgment with respect to the section 1983 claim on the grounds that neither the statement of Professor Jack Kilgour that suing the University, "somehow [did not] sit well with a lot of people," nor Dean Tontz's statement that he wanted to discipline appellant "to the fullest extent possible" for the unauthorized absence, without conducting a thorough review of his disciplinary record, provided sufficient direct evidence that the University had retaliated against appellant for successfully prosecuting his prior lawsuit. The court also dismissed the pendant state
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