Beck v. American Health Group Internat., Inc.

• Decision Date: 13 July 1989
• Docket Number: No. B035652,B035652
• Court: California Court of Appeals Court of Appeals
• Parties: John BECK, M.D., Plaintiff and Appellant, v. AMERICAN HEALTH GROUP INTERNATIONAL, INC., et al., Defendants and Respondents.

Page 237

260 Cal.Rptr. 237

211 Cal.App.3d 1555

John BECK, M.D., Plaintiff and Appellant, v. AMERICAN HEALTH GROUP INTERNATIONAL, INC., et al., Defendants and Respondents.

No. B035652.

Court of Appeal, Second District, Division 7, California.

July 13, 1989.

Review Denied Oct. 11, 1989.

Potter and Reed and Randolph A. Rogers, Lancaster, for plaintiff and appellant

Harrington, Foxx, Dubrow & Canter, Bruce E. Weiner, Greines, Martin, Stein & Richland, Alan G. Martin and Pamela Victorine, Beverly Hills, for defendants and respondents.

LILLIE, Presiding Justice.

Plaintiff, John Beck, M.D., appeals from judgment dismissing his first amended complaint entered after the trial court sustained the demurrer of defendants, American Health Group International, Inc. (Health Group) and Palmdale Health Group, Inc., dba Palmdale Hospital Medical Center (Hospital), without leave to amend.

FACTS

Plaintiff sued defendants for damages for breach of contract, bad faith denial of the existence of a contract, breach of the implied covenant of good faith and fair dealing, and intentional and negligent interference with an economic relationship. Each of these theories of recovery was based on an alleged contract whereby plaintiff, a psychiatrist, was to act as the medical director for mental health services at defendant Hospital.

The first amended complaint contained five causes of action. The first cause of action (breach of contract) alleged: Defendant Health Group is the "parent or an affiliate" of defendant Hospital with a financial interest in the profitability of the Hospital. At all times alleged each defendant was an agent of the other and each acted within the scope of such agency in performing the acts alleged. On May 21, 1987, plaintiff and the Hospital entered into a written contract drafted by the Hospital. ¹ At all times plaintiff stood ready Each of the ensuing causes of action incorporated the allegations of the first cause of action. The second cause of action (denial of existence of contract in bad faith and without probable cause) and the third cause of action (breach of implied covenant of good faith and fair dealing) were directed against both defendants, while the fourth cause of action (intentional interference with economic relationship) and the fifth cause of action (negligent interference with economic relationship) were directed against the Health Group.

willing and able to perform in accordance with the contract. On July 22, 1987, the Hospital, by letter to plaintiff from the Health Group, gave notice that it would not perform the contract and repudiated it. As a proximate result of the Hospital's breach of contract plaintiff sustained general and special damages.

Defendants demurred generally to each cause of action on the following grounds: (1) there was no binding, enforceable contract as shown by the language of the writing attached to and incorporated into the first amended complaint; and (2) if such writing constituted a contract, the contract is illegal in that it allows plaintiff to admit his psychiatric patients to the Hospital and fixes his compensation at 10 percent of the room and board charges of all general psychiatric patients at the Hospital, in violation of Business and Professions Code section 650.

The trial court sustained the demurrer without leave to amend as to all causes of action on the grounds there was no contract or contractual relationship as a matter of law and "any prospective economic benefit to plaintiff is too speculative to support the plaintiff's claims."

Judgment was entered dismissing the first amended complaint. This appeal followed.

DISCUSSION

I

Plaintiff contends the trial court erred in construing the writing upon demurrer because judicial interpretation of a written instrument is proper only after the parties have had the opportunity to present extrinsic evidence bearing upon the intent of the parties and the meaning of the writing.

In support of this contention plaintiff cites Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641, wherein the Supreme Court stated: "The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. [Citations.] [p] A rule that would limit the determination of the meaning of a written instrument to its four corners merely because it seems to the court to be clear and unambiguous, would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained.... [p] ... [T]he meaning of a writing '... can only be found by interpretation in the light of all the circumstances that reveal the sense in which the writer used the words. The exclusion of parol evidence regarding such circumstances merely because the words do not appear ambiguous to the reader can easily lead to the attribution to a written instrument of a meaning that was never intended. [Citations omitted.]' [Citations.].... [p] Accordingly, rational interpretation requires at least a preliminary consideration of all credible evidence offered to prove the intention of the parties. [Citations.] Such evidence includes testimony as to the 'circumstances surrounding the making of the agreement ... including the object, nature and subject matter of the writing ...' so that the court can 'place itself in the same situation in which the parties found themselves at the time of contracting.' [Citations.]" (69 Cal.2d at pp. 37-40, 69 Cal.Rptr. 561, 442 P.2d 641; fn. omitted.)

As plaintiff notes, these principles have been applied to set aside the trial court's sustaining of a demurrer based upon the court's interpretation of a written instrument attached to and incorporated into the complaint. (Southern Pacific Land Co. v. Westlake Farms, Inc. (1987) 188 Cal.App.3d 807, 815-817, 233 Cal.Rptr. 794; Shaw v. Metro-Goldwyn-Mayer, Inc. (1974) 37 Cal.App.3d 587, 598-599, 113 Cal.Rptr. 617.) However, as the court acknowledged in the Southern Pacific Land case, this result obtains only where the plaintiff alleges the meaning which he ascribes to an ambiguous writing attached to and incorporated into the complaint. (188 Cal.App.3d at p. 817, 233 Cal.Rptr. 794.) " '... It is perfectly proper to set out a contract in haec verba. But in such case, if the contract is uncertain, the pleader must put some definite construction on it by averment.' " (Connell v. Zaid (1969) 268 Cal.App.2d 788, 795, 74 Cal.Rptr. 371, quoting Durkee v. Cota (1887) 74 Cal. 313, 315, 16 P. 5.)

Plaintiff's first amended complaint does not allege his interpretation of the attached and incorporated writing, save the conclusional allegation that it is the contract of the parties. Accordingly, the following principles govern the trial court's review of the writing in ruling on the demurrer: " 'Ordinarily, a written contract is sufficiently pleaded if it is set out in full or its terms alleged according to their legal effect.... But if the instrument is ambiguous, the pleader must allege the meaning he ascribes to it. [Citations.]' [Citation.] Where a written contract is pleaded by attachment to and incorporation in a complaint, and where the complaint fails to allege that the terms of the contract have any special meaning, a court will construe the language of the contract on its face to determine whether, as a matter of law, the contract is reasonably subject to a construction sufficient to sustain a cause of action for breach." (Hillsman v. Sutter Community Hospitals (1984) 153 Cal.App.3d 743, 749-750, 200 Cal.Rptr. 605; fn. omitted.) This rule applicable on demurrer "is simply a variation on the well-recognized theme that ' "It is ... solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence." ' [Citations.]" (California Assn. of Highway Patrolmen v. Department of Personnel Admin. (1986) 185 Cal.App.3d 352, 361, 229 Cal.Rptr. 729.)

The first amended complaint merely incorporated a copy of the attached writing by reference, leaving it to speak for itself. Plaintiff did not allege that the writing is ambiguous and is subject to the interpretation that it is a contract. Accordingly, we construe its language in light of the following principles. ²

"Whether a writing constitutes a final agreement or merely an agreement to make an agreement depends primarily upon the intention of the parties. In the absence of ambiguity this must be determined by a construction of the instrument taken as a whole." (Smissaert v. Chiodo (1958) 163 Cal.App.2d 827, 830, 330 P.2d 98.) "Preliminary negotiations or an agreement for future negotiations are not the functional equivalent of a valid, subsisting agreement. 'A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.' [Citation.]" (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 59, 248 Cal.Rptr. 217.) Thus, where it is part of the understanding between the parties that the terms of their contract are to be reduced to writing and signed by the parties, the assent to its terms must be evidenced in the manner agreed upon or it does not become a binding or completed contract. (Duran v. Duran (1983) 150 Cal.App.3d 176, 180, 197 Cal.Rptr. 497; Frankenheimer v. Frankenheimer The letter under consideration begins: "It is a pleasure to draft the outline of our future agreement...." (Emphasis added.) After outlining the terms of the proposed agreement the writer of the letter asks plaintiff to sign it "if this is a general understanding of the...