Union Pacific v. SFPP
Filed 1/28/09 Union Pacific v. SFPP CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
UNION PACIFIC RAILROAD COMPANY, Plaintiff and Respondent, v. SFPP, L.P. et al., Defendants and Appellants. | B199403 (Los Angeles County Super. Ct. No. BC236852) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] |
THE COURT*:
It is ordered that the opinion filed on December 29, 2008, be modified as follows:
(1) On page 12, the following paragraphs are added after the second full paragraph that begins with Clearly, the trial court did not credit . . . .
In its argument that the course of performance evidence established the limitation on the Pipelines obligation to pay, the Pipeline appears to argue that there was an implied modification of the parties agreement. The Pipeline cites to Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1388 (Wagner) and Warner-Lambert Pharm. Co. v. John J. Reynolds, Inc. (S.D.N.Y. 1959) 178 F.Supp. 655, 667-668 and relies on the following passage from Wagner: When one party has, through oral representations and conduct or custom, subsequently behaved in a manner antithetical to one or more terms of an express written contract, he or she has induced the other party to rely on the representations and conduct or custom. In that circumstance, it would be equally inequitable to deny the relying party the benefit of the other partys apparent modification of the written contract. (Wagner,at p. 1388.) After stating that principle, the Wagner court found no evidence of an implied modification affording an employee permanent employment. (Id. at pp. 1389-1392.)
The Pipeline cites to no evidence in the record in support of its implicit argument that there was an implied modification of the parties written agreement. In its trial brief, the Pipeline argued, (1) the basic tenets of contract interpretation support SFPPs interpretation of the relocation clause in the AREA; (2) the admissions of Union Pacifics own personnel corroborate SFPPs interpretation of the relocation clause; (3) the parties decades-long practice illustrates the limitations on Union Pacifics ability to ask SFPP to relocate at SFPPs expense; and (4) the Court of Appeal opinion did not limit the evidence. (Capitalization omitted.) Neither the alleged inequity in denying the relying party the benefit of the other partys apparent modification of the written contract (Wagner, supra, 216 Cal.App.3d at p. 1388) nor an alleged modification of the written contract was focused on during trial and neither is supported by the record.
The Pipelines reliance on Warner-Lambert Pharm. Co. v. John J. Reynolds, Inc., supra, 178 F.Supp. 655 also is misplaced. In that case, the federal district court was asked to decide whether the defendants were required to make periodic payments for its manufactured and sale of Listerine. (Id. at p. 657.) The court found the language of the parties agreement to unambiguously require payments as long as the defendants manufacture and sold Listerine. (Id. at p. 660.) The court also found the conduct of the
parties over the term of the contract to be persuasive of the intent of the parties. (Id. at p. 667.) As we have explained, although course of performance evidence often is persuasive, the Pipeline has not shown that in this case it is dispositive.
(2) On page 17, footnote 4 is deleted.
There is no change in judgment.
Appellants petition for rehearing is denied.
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*RUBIN, Acting P. J. BIGELOW, J.
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