Dore v. Arnold Worlwide 3/24/04 CA2/7

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B162235

Case Date: 07/21/2004

Preview:Filed 3/24/04 Dore v. Arnold Worldwide CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN BROOK DORE, Plaintiff and Appellant, v. ARNOLD WORLDWIDE, INC., et al., Defendants and Respondents. B162235 (Los Angeles County Super. Ct. No. BC260637)

APPEAL from a judgment of the Superior Court of Los Angeles County. Jane L. Johnson, Judge. Affirmed in part; reversed in part with directions. Magana, Cathcart & McCarthy, Clay Robbins III and Marc Carlson for Plaintiff and Appellant. Bergman & Dacey, Gregory M. Bergman and Beth D. Corriea for Defendants and Respondents.

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Plaintiff Brook Dore alleges defendants made false representations of long term employment to induce him to leave his secure position with an advertising agency in Denver and accept a managerial position with defendants in Los Angeles. Twenty-eight months later defendants fired Dore without giving any reason. Dore then brought this action for breach of contract, fraud, negligent misrepresentation and intentional infliction of emotional distress. The trial court granted defendants' motion for summary judgment as to all causes of action finding Dore could not establish an express or implied-in-fact agreement to terminate his employment only for good cause. Dore filed a timely appeal from the judgment. We affirm the judgment as to defendant Arnold Worldwide Partners because the undisputed evidence shows it cannot be held liable for any wrongdoing by its codefendant Arnold Worldwide, Inc. and Dore was not entitled to a continuance to engage in discovery on this issue. We reverse the judgment as to Arnold Worldwide, Inc. because we find triable issues of fact exist as to Dore's causes of action for breach of contract, fraud and intentional infliction of emotional distress. FACTS AND PROCEEDINGS BELOW In 1999 Dore worked in Denver Colorado as a regional account director with a nationwide advertising agency. He had been employed with the agency for the past five years specializing in automobile accounts. Early in 1999 Dore began contemplating a move to California. His current employer agreed to attempt to find him a position in its Los Angeles office. Meanwhile Dore entered into negotiations with two other agencies in Southern California. While these negotiations progressed, Dore learned about the availability of the management supervisor position in the Los Angeles office of Arnold Communications (Arnold).
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Arnold Communications subsequently changed its name to Arnold Worldwide,

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Dore interviewed for the position with several of Arnold's officers and employees. These officers and employees had been with Arnold from five to twenty-five years. In the interviews Dore was told Arnold had landed a new automobile account in its Los Angeles office and needed someone with his background and experience to handle the account on a "long-term" basis. Among other things, Arnold officials told Dore if hired he would "play a critical role in growing the agency," Arnold was looking for "a longterm fix, not a Band Aid," and Arnold employees were treated as "family." Dore also learned the fate of the last two persons to hold the management supervisor position in the Los Angeles office: one was fired for "financial indiscretions" the other was terminated because his work did not satisfy a major client. Arnold offered Dore the management supervisor position by telephone in early April 1999. Dore orally accepted the offer and subsequently signed the bottom of a letter from Arnold signifying his acceptance of "the terms of this offer." Dore acknowledges the letter did not specifically guarantee him a particular period of employment and did not specifically state he could only be terminated for good cause. Nevertheless, Dore testified that based on his conversations with Arnold officials he believed "as long as I did a good job and that my position continued to exist, I would continue to be employed by [Arnold]." Arnold terminated Dore in August 2001 without stating any reason. Dore filed this suit against Arnold and another company, Arnold Worldwide Partners, a few months later. His complaint alleges breach of contract, fraud, negligent misrepresentation and intentional infliction of emotional distress. Both defendants answered and moved for summary judgment. The trial court granted the motions and subsequently entered judgment for the defendants. Arnold filed a timely appeal.

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DISCUSSION I. A TRIABLE ISSUE OF FACT EXISTS AS TO WHETHER DORE'S EMPLOYMENT COULD ONLY BE TERMINATED FOR GOOD CAUSE.

Arnold contends it is entitled to summary judgment on Dore's breach of contract cause of action because Dore cannot establish an express or implied-in-fact agreement his employment could only be terminated for good cause. Arnold principally relies on the terms of its written employment offer which Dore accepted. This offer and Dore's acceptance, Arnold argues, constituted an integrated contract containing an express provision Dore's employment was "at will." The parol evidence rule, therefore, prohibits Dore from introducing any evidence contradicting the "at will" clause. Arnold further argues Dore's evidence of an implied-in-fact agreement not to terminate his employment without good cause is not admissible because Dore testified at his deposition Arnold breached an express "good cause" agreement. Finally, Arnold maintains even if Dore's evidence is admissible it is not sufficient to raise a triable issue of fact about the existence of an implied "good cause" agreement. For the reasons explained more fully below we reject Arnold's arguments and conclude a triable issue of fact exists as to whether Dore's employment could only be terminated for good cause. Whether or not the parties intended the contract term relating to the duration of Dore's employment to be their complete and final agreement on the subject of termination, extrinsic evidence is admissible to show the parties understood Dore could only be terminated for good cause. If the contract was not integrated as to the subject of termination, evidence would be admissible to show a supplementary agreement requiring good cause for termination. If the contract was integrated as to the subject of termination, evidence would still be admissible to show the parties meant the termination clause to include a good cause requirement. The argument Dore's deposition testimony bars introduction of his evidence of an implied-in-fact agreement on termination is totally lacking in merit. Finally, we conclude Dore has presented sufficient evidence to raise a 4

triable issue of fact as to whether his employment agreement with Arnold required good cause for termination. A. The Parol Evidence Rule Does Not Bar Evidence Dore's Employment Could Only Be Terminated For Cause. Arnold maintains its employment contract with Dore was contained in a written offer and acceptance which the parties intended to be the complete and exclusive expression of their agreement. Under the parol evidence rule such a fully integrated written contract cannot be contradicted or supplemented by prior or contemporaneous oral agreements. Thus, Arnold reasons, evidence is not admissible to show the contract required good cause for termination when no such provision was included by the parties in their written agreement. Arnold's senior vice president sent Dore a letter "confirm[ing] our offer to join us as Management Supervisor in our Los Angeles office." The letter stated in relevant part: "The terms of this offer are as follows: . . . You will have a 90-day assessment with your supervisor at which time you will receive initial performance feedback. . . . After your assessment is complete, you and your supervisor will have the opportunity to discuss consideration for being named an officer of Arnold Communications. [

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