Dore v. Arnold Worldwide, Inc.

BAXTER, J., Concurring.

I agree with the result reached by the majority and with the bulk of their reasoning. Dore signed, and admitted he read, understood, and did not disagree with, Arnold Worldwide’s (AWI) letter stating the terms of his employment. This letter could hardly have made it clearer that the employment was “at will.” The letter used that exact phrase, the meaning of which admits no ambiguity. Nor did the letter introduce ambiguity by saying further that this meant Dore could be terminated “at any time[,] just as [Dore] ha[d] the right to terminate [his] employment with [AWI] at any time.” On the contrary, that is precisely how our statutory law explains the concept of “at will” employment. (See Lab. Code, § 2922 [“An employment, having no specified term, may be terminated at the will of either party on notice to the other.” (Italics added.)].)

No rational person could believe this language meant both parties were obliged to continue the employment relationship except upon “good cause.” The words “at will” and “at any time,” as used in the letter, would make no sense if the parties really meant the opposite—that good cause was required for termination.

It follows beyond doubt that the letter expressed the parties’ mutual understanding the relationship could be terminated by either party as desired, for any or no reason. I therefore concur in the majority’s conclusion that the letter contained no ambiguity, patent or latent, and that the extrinsic evidence proffered by Dore could not contradict the letter’s plain meaning.

*395However, I cannot join the majority’s general endorsement of Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33 [9 Cal.Rptr. 561, 442 P.2d 641] (Pacific Gas). Pacific Gas essentially abrogated the traditional rule that parol evidence is not admissible to contradict the plain meaning of an integrated agreement by concluding that, even if the agreement “appears to the court to be plain and unambiguous on its face,” extrinsic evidence is admissible to expose a latent ambiguity, i.e., the possibility that the parties actually intended the language to mean something different. (Id. at p. 37.)

Read in its broadest sense, Pacific Gas thus stretched the unremarkable principle that extrinsic evidence is admissible to resolve a contractual ambiguity into a rule that parol evidence is always admissible to demonstrate ambiguity despite facial clarity. The effect is that, despite their best efforts to produce a clear written agreement, parties can never confidently conduct their affairs on the basis of the language they have drafted.

Predictably, the Pacific Gas decision has drawn strong criticisms. (See, e.g., Karlin & Karlin, The California Parol Evidence Rule (1992) 21 Sw.U. L.Rev. 1361, 1374—1385.) Judge Kozinski succinctly expressed them in Trident Center v. Connecticut General Life Ins. Co. (9th Cir. 1988) 847 F.2d 564: “Under Pacific Gas, it matters not how clearly a contract is written, nor how completely it is integrated, nor how carefully it is negotiated, nor how squarely it addresses the issue before the court: the contract cannot be rendered impervious to attack by parol evidence. If one side is willing to claim that the parties intended one thing but the agreement provides for another, the court must consider extrinsic evidence of possible ambiguity. If that evidence raises the specter of ambiguity where there was none before, the contract language is displaced and the intention of the parties must be divined from self-serving testimony offered by partisan witnesses whose recollection is hazy from passage of time and colored by their conflicting interests.” (Trident Center, supra, at p. 569.)1

To their credit, it appears the majority here have declined to apply Pacific Gas quite so broadly. On the one hand, they repeat mischievous statements from Pacific Gas and its progeny that extrinsic evidence of intent may be *396admissible even when the contract’s language appears “ ‘unambiguous on its face.’ ” (Maj. opn., ante, at p. 391.) On the other hand, however, they assert that “ ‘[a]n ambiguity arises [only] when language is reasonably susceptible of more than one application to material facts.’ ” (Ibid., italics added.)

If I understand the majority’s premise, a “latent” ambiguity is simply one that becomes manifest when one attempts to apply the contract’s language to the specific facts that gave rise to the parties’ legal dispute. Even then, extrinsic evidence is admissible only to prove a meaning the contract’s language will reasonably accommodate. Thus here, the majority are able to say, in effect, that the language of AWI’s letter is not ambiguous as applied to the particular facts (i.e., Dore’s termination) that gave rise to the dispute between AWI and Dore.

I entirely agree that Pacific Gas should be limited at least to the extent the majority imply. I hope the majority’s limiting “gloss” will be noted by the bench and bar, and will signal that written agreements whose language appears clear in the context of the parties’ dispute are not open to claims of “latent” ambiguity.

Still, it may be time for a fuller reconsideration of the meaning and scope of Pacific Gas. I am open to undertaking such a comprehensive reexamination in an appropriate case. With that caveat, I concur in the majority’s reasoning and result.

Corrigan, J., concurred.

In this court, Justice Mosk soon stated his own misgivings about his participation in the Pacific Gas majority, noting that the decision had “contributed” “toward emasculation of the parol evidence rule.” (Delta Dynamics, Inc. v. Arioto (1968) 69 Cal.2d 525, 531 [2 Cal.Rptr. 785, 446 P.2d 785] (dis. opn. of Mosk, J.).) Expressing sentiments later echoed by Judge Kozinski, Justice Mosk observed that “it has become virtually impossible under recently evolving rules of evidence to draft a written contract that will produce predictable results in court. The written word, heretofore deemed immutable, is now at all times subject to alteration by self-serving recitals based upon fading memories of antecedent events. This, I submit, is a serious impediment to the certainty required in commercial transactions." (Id. at p. 532.)