Dore v. Arnold Worlwide

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 co-
defendant 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).1
1
Arnold Communications subsequently changed its name to Arnold Worldwide,
Inc.

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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 long-
term 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

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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.2
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. [¶] Brook,
please know that as with all of our company employees, your employment with Arnold
Communications, Inc. is at will. This simply means that Arnold Communications has the
right to terminate your employment at any time just as you have the right to terminate
your employment with Arnold Communications at any time.”
The letter concluded by asking Dore to “please sign this letter signifying your
acceptance of these employment terms and return this to me at your earliest
convenience.” Dore signed and returned the letter.
2
Code of Civil Procedure section 1856, subdivision (a); Cerritos Valley Bank v.
Stirling (2000) 81 Cal.App.4th 1108, 1115-1116.

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Arnold maintains the letter and Dore’s acknowledgement created a fully integrated
contract expressly providing Dore’s employment was “at will.” This being the case, the
parol evidence rule prohibits Dore from introducing evidence of a prior or
contemporaneous oral agreement which contradicts, explains or supplements the terms of
the contract.3
We disagree with Arnold’s analysis of the contract. Although the term “at will”
when used in an employment contract normally conveys an intent employment “may be
ended by either party ‘at any time without cause,’” nothing “prevent[s] the parties from
agreeing to any limitation, otherwise lawful, on an employer’s termination rights.”4
In the present case the employer, after telling Dore his employment was “at will”
went on to tell Dore what it meant by “at will.” It told Dore: “This simply means that
Arnold Communications has the right to terminate your employment at any time just as
you have the right to terminate your employment with Arnold Communications at any
time.”
If the contract contained only the first sentence stating Dore’s employment was “at
will” there would be no question it meant Arnold could terminate Dore at any time
without cause. The term “at will” is well understood to have this meaning under
California contract law.5
But the contract contains a second sentence which explains the
term “at will” “simply means that Arnold Communications has the right to terminate your
employment at any time . . . .” (Italics added.)
In addition, the contract provides: “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.”
3
Code of Civil Procedure section 1856, subdivisions (a), (b); Slivinsky v. Watkins-
Johnson Co. (1990) 221 Cal.App.3d 799, 805.
4
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 335-336.
5
Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 336.

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These two provisions taken together, along with the rule any ambiguities in the
terms of a contract are to be construed against the party who drafted it,6
convince us the
term “at will,” as used in Dore’s contract did not mean “at any time for any reason” but
only “at any time.” This is the most fair reading of the explanatory sentence. Moreover,
a contrary interpretation would conflict with the 90-day assessment provision which
would be pointless if Dore could be fired at any time for any reason.
When an employment agreement contains a termination provision covering the
duration of the agreement but is silent as to cause for termination parol evidence is
admissible to show the parties’ intent with respect to cause.7
If the agreement or a particular term is not intended to be the parties’ complete and
exclusive statement of the agreement or term then the agreement or term can “be
explained or supplemented by evidence of consistent additional terms.”8
In Gianelli
Distributing plaintiff beer distributors sued defendant manufacturer for breach of contract
after defendant terminated plaintiffs’ distribution contracts allegedly without cause. The
distribution agreement stated: “This agreement will continue in effect unless and until
terminated at any time after January 1, 1973 by thirty days written notice by either party
to the other.”9
Reversing summary judgment for defendant the Court of Appeal held the
evidence was “sufficient to establish that the agreement was not integrated and to create
an issue of fact as to whether a good cause termination requirement was an implied term
of the contracts.”10
6
Victoria v. Superior Court (1985) 40 Cal.3d 734, 745.
7
Esbensen v. Userware Internat., Inc. (1992) 11 Cal.App.4th 631, 636-638; Wallis
v. Farmers Group, Inc. (1990) 220 Cal.App.3d 718, 729-730; Bert G. Gianelli
Distributing Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020, 1039 (hereafter Ginanelli
Distributing); Sherman v. Mutual Benefit Life Ins. Co. (9th Cir. 1980) 633 F.2d 782, 784
(applying California law).
8
Code of Civil Procedure section 1856, subdivision (b).
9
Gianelli Distributing, supra, 172 Cal.App.3d at page 1037.
10
Gianelli Distributing, supra, 172 Cal.App.3d at page 1039.

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Even if the agreement or a particular term is intended to be the parties’ complete
and exclusive statement of the agreement or term extrinsic evidence is admissible to
explain the meaning of the language used when the language is reasonably susceptible to
more than one interpretation.11
In Wallis v. Farmers Group, Inc., for example, plaintiff’s agent appointment
agreement with defendant provided the agreement “‘may be terminated by either the
Agent or [Farmers] on three (3) months written notice.’”12
The court held the agreement
was integrated with respect to the subject of termination but extrinsic evidence was
admissible to determine whether the termination clause meant the agreement could be
cancelled without cause or only for cause. The court found “the language of the parties’
agreement was reasonably susceptible of either of these meanings.”13
In Sherman v. Mutual Benefit Life Ins. Co., the plaintiff sued defendant for breach
of his general agency contract. Like the contract in the case before us, the contract in
Sherman provided the agreement could be terminated “at any time” by either party.14
Reversing the summary judgment for defendant the Ninth Circuit held the district court
erred in interpreting the phrase “at any time” to necessarily mean Mutual could terminate
with or without cause. “‘At any time,’” the court explained, “could reasonably be
interpreted as referring only to the duration of the agreement and not the permissible
reasons for its termination. If the phrase ‘at any time’ is interpreted as referring only to
duration, then the termination clause does not expressly state whether or not good cause
is a prerequisite.”15
Given the evidence produced on the motion for summary judgment
11
Pacific Gas & Elec. Co. v. G.W. Thomas Drayage Etc. Co. (1968) 69 Cal.2d 33,
37.
12
Wallis v. Farmers Group, Inc., supra, 220 Cal.App.3d at page 730.
13
Wallis v. Farmers Group, Inc., supra, 220 Cal.App.3d at pages 730-731.
14
Sherman v. Mutual Benefit Life Ins. Co., supra, 633 F.2d at page 783.
15
Sherman v. Mutual Benefit Life Ins. Co., supra, 633 F.2d at page 784.

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the court found the termination clause was “reasonably susceptible to an interpretation
requiring good cause for termination.”16
B Dore’s Deposition Testimony Does Not Bar Evidence
Dore’s Employment Could Only Be Terminated For Cause.
Arnold next argues Dore’s evidence of an implied-in-fact agreement not to
terminate except for good cause was inadmissible because it conflicts with his deposition
testimony Arnold violated an express agreement not to terminate without good cause.17
The alleged conflict arises from Dore’s deposition testimony in which he was
asked, referring to the letter agreement: “Were any of the terms that were outlined in this
document ever violated by Arnold Worldwide?” Dore answered: “Yes. . . . The 90-day
performance assessment, which I never ended up receiving, if I’m understanding your
question correctly.” As part of this same answer, Dore explained: “After reviewing this
letter, I was under the opinion that I would be provided with an assessment of my
performance and . . . objectives. And that I would have long-standing employment with
Arnold based upon the discussions of the Arnold management [sic], as long as I achieved
the said objectives and my performance was indicative of that.”
Arnold contends Dore cannot use the “at any time” language in the contract to
support an implied agreement to terminate him only for cause because when asked
whether the contract’s terms were breached Dore did not point to this language but
instead identified the 90-day assessment provision.
This argument borders on the frivolous. Dore was asked: “Were any of the terms
that were outlined in this document ever violated[?]” Dore interpreted this question as
asking whether any of the express terms in the agreement were ever violated by Arnold.
This was a reasonable assumption because the question referred to “terms” which were
16
Sherman v. Mutual Benefit Life Ins. Co., supra, 633 F.2d at page 783.

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“outlined in this document” and because Dore’s complaint alleged violation of “an
express and an implied-in-fact employment contract.” When Dore referred to the 90-day
assessment provision he qualified his answer by stating “if I’m understanding your
question correctly.” Counsel for Arnold let the qualified answer go. She did not respond,
“No, I’m asking you about any implied-in-fact terms.” Arnold cannot now complain
Dore gave an inconsistent answer to a question which was never asked. Furthermore,
contention questions such as the one posed here are inappropriate at a deposition because
they require the party deponent to make law-to-fact applications which are beyond the
competence of most lay persons. If the deposing party wants to know facts, it can ask for
facts, i.e., “Did you receive the 90-day assessment?” If the deposing party wants to know
if deponent contends any express provisions of the contract were violated it should ask
that question in an interrogatory so the answering party may, with the aid of counsel,
marshal the facts and apply the legal reasoning relied upon for each contention.18
C. Dore Produced Sufficient Evidence To Raise A Triable Issue
Of Fact As To Whether His Employment Could Only Be
Terminated For Cause.
In arguing the contract cannot reasonably be interpreted to require good cause for
termination Arnold relies solely on the contract language and the Labor Code
presumption employment is at will, meaning it can be terminated at any time without
cause.19
We have determined, however, the contract is susceptible to an interpretation
requiring good cause for termination20
and the Labor Code presumption is rebuttable.21
17
See Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451 [in determining
existence of triable issue of fact courts disregard declarations which conflict with
witness’s prior deposition testimony].
18
Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1261-1262.
19
Labor Code section 2922; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page
336.
20
See discussion in subpart A, ante.
21
Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677.

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Dore submitted the following evidence in support of his contention the parties
intended his employment to be terminable only for cause.
The contract was introduced into evidence. Its language supports Dore’s
interpretation. As previously noted, the contract contains the statement “your
employment with Arnold Communications, Inc. is at will.” As previously noted, if this
was the only provision in the contract regarding termination Dore would be hard-pressed
to show an implied-in-fact agreement not to terminate his employment except for good
cause. But this is not the only provision. The contract goes on to define the term “at
will” to mean “Arnold Communications has the right to terminate your employment at
any time.” A trier of fact could find that by defining the term “at will” to refer only to the
duration of the contract when it otherwise would have referred to duration and cause,
Arnold impliedly relinquished the right to terminate Dore without cause.
The contract’s 90-day assessment period also supports Dore. This provision of the
contract states after a 90-day assessment period Dore would be considered for a position
as an officer of Arnold Communications. The implication is that during the 90-day
probationary period Dore could be terminated for any or no reason but after 90 days, if
confirmed for an officer position, Dore could only be terminated for cause. If this was
not the parties’ understanding it is difficult to see what purpose the 90-day provision
served. If Dore could be fired at any time without cause no such probationary period
would have been necessary.
As a condition of employment Arnold required Dore to sign a non-competition
and non-disclosure agreement covering a period after his employment ceased equal to the
lesser of two years or his actual length of employment. In Foley v. Interactive Data, our
Supreme Court found such an agreement to be significant evidence in support of an
implied-in-fact agreement not to terminate without cause: “The noncompetition
agreement and its attendant [confidentiality agreement] may be probative evidence that
‘it is more probable that the parties intended a continuing relationship, with limitations
upon the employer’s dismissal authority [because the] employee has provided some

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benefit to the employer, or suffers some detriment beyond the usual rendition of
service.’”22
The employer’s assurances of job security are also relevant evidence of an implied
agreement limiting the grounds for termination.23
Arnold gave Dore such assurances in
his hiring interviews. Francis Kelly, Arnold’s Chief of Marketing, told Dore whoever
was hired for his position “would play a critical role in growing the agency.” Karen
Driscoll, an executive vice president, told Dore Arnold was “being extremely cautious in
filling the position, as they needed a long-term fix, not a Band-Aid.” Paul Nelson, an
account supervisor, stated the Los Angeles office needed a “long-term solution.” A
senior vice president, John Castle, emphasized Arnold’s “family atmosphere.”
Evidence of Arnold’s actual employment practices is a further indicator employees
at the management level were not terminated arbitrarily.24
At the time Arnold hired Dore,
Kelly had been with the company more than 20 years; Driscoll 25 years and Castle over
10 years. This longevity is particularly relevant in light of Arnold’s statement in Dore’s
employment contract “all of our company employees” are employed “at will.” Dore also
learned during his job interviews the last two persons to hold his position were terminated
for cause: one for “financial indiscretions” the other at the insistence of one of Arnold’s
major accounts.
Finally, evidence Dore held his position for more than two years and received a
promotion and a salary increase, while not dispositive, are factors supporting an implied
agreement not to terminate except for cause.25
Viewing the totality of the circumstances surrounding Dore’s employment we
conclude a triable issue of fact has been established as to the existence of an implied-in-
fact agreement not to terminate without good cause.26
22
Foley v. Interactive Data Corp., supra, 47 Cal.3d at page 682, quoting from Pugh
v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 326, first set of brackets added.
23
Foley v. Interactive Data Corp., supra, 47 Cal.3d at page 681.
24
Foley v. Interactive Data Corp., supra, 47 Cal.3d at page 680.
25
Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 342.

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II. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER
ARNOLD FALSELY PROMISED DORE HIS EMPLOYMENT
COULD ONLY BE TERMINATED FOR GOOD CAUSE.
Dore’s complaint alleges Arnold induced him to leave his longstanding, secure
employment with an advertising agency in Denver, decline another viable offer of
employment and relocate to Los Angeles by promising Dore his employment would
continue indefinitely so long as he performed in a proper and competent manner, he
would not be demoted or discharged except for good cause and he would be given notice
and a meaningful opportunity to respond to any unfavorable evaluations of his
performance. Dore alleges these promises were false in that Arnold had no intention of
performing them at the time they were made. Dore, however, justifiably relied on
Arnold’s promises and suffered damages when Arnold failed to perform.
Arnold contends it was entitled to summary judgment on this cause of action for
promissory fraud because “Dore has produced insufficient evidence to establish that there
was any misrepresentation;” “Dore has produced no evidence of an intent not to
perform;” and “Dore has produced no evidence of justifiable reliance.”
The highlighted portions of Arnold’s argument illustrate the first reason why its
motion for summary judgment fails. It is not Dore’s responsibility to produce any
evidence in support of his cause of action until Arnold “has shown that one or more
elements of the cause of action . . . cannot be established, or that there is a complete
defense to that cause of action.”27
A defendant may make this showing by presenting
evidence conclusively negating an element of the cause of action or “by showing”
26
Because summary judgment and summary adjudication address complaints and
causes of action, not the theories underlying them, (Code Civ. Proc., § 437c, subds. (a),
(f)) we have no need to consider Dore’s claim Arnold breached its implied covenant of
good faith and fair dealing in the manner in which it terminated his employment. The
relationship between the theories of breach of an implied-in-fact agreement not to
terminate without cause and breach of the implied covenant of good faith and fair dealing
are discussed in Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pages 352-353.
27
Code of Civil Procedure section 437c, subdivision (p)(2).

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through evidence “that the plaintiff does not possess, and cannot reasonably obtain,
needed evidence[.]”28
Arnold failed to make either showing.
On the misrepresentation element, Arnold produced no evidence of its own to
prove the alleged promises were not made by its officers. Rather it relied on Dore’s
deposition testimony in which he admitted no one at Arnold specifically told him he
would have continued employment so long as his work was satisfactory or that he could
only be fired for good cause. Arnold also submitted excerpts from Dore’s testimony in
which he stated his allegations about the promises made to him were based on his being
told if hired he would become part of the “Arnold family;” Arnold was “looking for some
stability in the L.A. office;” and the position had been open for eight months because
Arnold could not find a qualified person to fill it. Dore testified these representations
together with the salary and relocation benefits offered him led him to believe he was
being offered long-term employment terminable only for cause.
Arnold argues the statements by company officials cited by Dore in his deposition
testimony were too vague to constitute promises of continued employment so long as his
work was satisfactory.
Arnold has not shown by evidence, however, this is all Dore has to offer on the
misrepresentation element of his promissory fraud cause of action. It has not, in the
words of our Supreme Court, “present[ed] evidence that the plaintiff does not possess,
and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff
following extensive discovery to the effect that he has discovered nothing.”29
Deposition
questions and answers normally are not a successful way of presenting evidence of the
plaintiff’s inability to prove his case. The questions are often vague, ambiguous, or call
for legal conclusions but the deponent is typically required to answer them anyway.
“Contention” questions at a deposition are inappropriate for the reasons discussed
28
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854.
29
Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at page 855; footnote omitted.

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above.30
The better procedure is to use a combination of requests for admissions and
interrogatories to ferret out “all facts” on which a particular claim is based.31
Furthermore, even if the representations Dore referred to in his deposition
testimony were all he had to support the fraud element of his cause of action we could not
say the evidence was insufficient as a matter of law to raise a triable issue of fact.
Representations the potential employee would be welcomed into the employer’s “family”
are relevant to show a false promise of continued employment32
as are representations
about opportunity and promotion.33
It is also relevant to show the employer was aware
the potential employee would be giving up secure employment elsewhere.34
In addition,
Arnold is incorrect in arguing Dore’s subjective beliefs based on its representations are
irrelevant.35
Arnold’s argument on the intent element of promissory fraud suffers from the
same evidentiary defect as its argument on the misrepresentation element—Arnold failed
to show Dore does not possess and cannot reasonably obtain the needed evidence.36
Moreover, although proof a promise was made and not fulfilled is insufficient
evidence of intent to survive a motion for nonsuit, it is sufficient to defeat a motion for
summary judgment.37
Finally, Arnold argues Dore cannot establish justifiable reliance on its alleged
promises of long-term employment and no termination without cause. Dore admits he
read, signed and understood a letter stating the terms of his employment and this letter
30
See discussion at pages 9-10, ante.
31
Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186; cited with approval in
Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at page 855, footnote 24.
32
Lazar v. Superior Court (1996) 12 Cal.4th 631, 636, 639.
33
Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 964.
34
Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at page 964.
35
See Lazar v. Superior Court, supra, 12 Cal.4th at page 635-636 [“Rykoff made
representations to Lazar that led him to believe he would continue to be employed by
Rykoff so long as he performed his job and achieved goals”].
36
Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at page 854.

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did not contain the promises he maintains were made. Indeed, the letter specifically
stated Dore’s employment was “at will.” We have previously discussed the meaning of
the term “at will” as used in the letter agreement and so we will not repeat our discussion
here.38
Even though Dore agrees his employment was not for a fixed period of time this
does not contradict his contention Arnold promised him long-term employment so long
as he performed satisfactorily because, if he performed satisfactorily, Arnold would have
no good cause to terminate him.
III. DORE’S COMPLAINT FAILS TO STATE A CAUSE OF
ACTION FOR NEGLIGENT MISREPRESENTATION.
Negligent misrepresentation is “[t]he assertion as a fact of that which is not true by
one who has no reasonable ground for believing it to be true[.]”39
Dore attempts to
convert his cause of action for the intentional tort of promissory fraud40
into a cause of
action for negligent misrepresentation by alleging when Arnold represented to Dore he
would have long-term employment and would be terminated only for cause Arnold had
no reasonable ground for believing these representations to be true.
There is no such tort as negligent false promise.41
This is because the law
distinguishes between the culpability of a party who enters into a contract with no intent
to perform it and a party who enters into a contract with an honest but unreasonable belief
in its ability to perform.42
The party who enters into a contract with no intent to perform
is subjected to tort damages because the party acted in a deceitful manner to induce the
other party to do or not do a particular thing. The party who entered into a contract with
an honest but unreasonable belief in its ability to perform may be liable for contract
37
Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31.
38
See discussion in Part I, ante.
39
Civil Code section 1710 (2).
40
See discussion in Part II, ante.
41
Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.

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damages if it does not perform but because it did not act deceitfully its conduct is not
sufficiently blameworthy to warrant liability for tort damages.
IV. TRIABLE ISSUES OF FACT EXIST AS TO DORE’S CAUSE
OF ACTION FOR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS.
Arnold sought summary judgment on Dore’s cause of action for intentional
infliction of emotional distress on three grounds: (1) Dore’s exclusive remedy for his
alleged emotional injury is a claim under the Workers’ Compensation Act; (2) Dore
cannot establish Arnold acted in an extreme and outrageous manner; and (3) Dore cannot
establish he suffered severe emotional distress. None of these grounds has merit.
A. Dore’s Claim For Intentional Infliction Of Emotional Distress
Arising Out Of His Employer’s Fraudulent Misrepresentations
Regarding His Job Is Not Barred By The Workers’
Compensation Act.
As a general rule, if an employee’s injury is covered by the Workers’
Compensation Act recovery under the Act is the employee’s exclusive remedy.43
Workers’ compensation preemption, however, does not apply when the employer’s
“misconduct exceed[s] the normal risk of the employment relationship,”44
or violates
fundamental public policy.45
42
Tarmann v. State Farm Mut. Auto. Ins. Co., supra, 2 Cal.App.4th at page 159.
43
Shoemaker v. Meyers (1990) 52 Cal.3d 1, 7, 18-20.
44
Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 756.
45
Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1085.

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1. False promises made to induce Dore to leave Denver and
accept a job in Los Angeles fall outside the “compensation
bargain” and violate fundamental public policy.
Dore alleges Arnold made fraudulent misrepresentations about the length of time
his employment would last and how criticisms of his performance would be handled in
order to induce him to cross state lines to become an Arnold employee.
In Lenk v. Total-Western, Inc. the court held workers’ compensation did not
preempt the jury’s award of damages to an employee for emotional distress arising from
the employer’s “misrepresentations related to the financial stability of a company, the
company’s future plans to relocate its operations, and the job applicant’s promotion in the
corporate ranks, all designed to induce employment[.]”46
The court stated the
“misrepresentations made to induce Lenk to become an employee [were] not a normal
part of the employment relationship or a risk reasonably encompassed within the
compensation bargain.”47
This was because fraudulently inducing a person to become an
employee “simply does not reflect matters that can be expected to occur with substantial
frequency in the working environment.”48
Because Dore, like Lenk, alleges emotional
distress resulting from his employer’s fraudulent misrepresentations designed to induce
him to accept employment we conclude Dore’s injury, like Lenk’s, was not incurred as a
normal part of the employment relationship.
In the present case, Dore not only alleges Arnold made false representations to
persuade him to accept a job offer, it induced him to cross state lines to do so. Labor
Code section 970 provides, “No person . . . shall influence, persuade, or engage any
person to change . . . from any place outside to any place within the State” for the
purpose of taking a job “through or by means of knowingly false representations”
concerning either “[t]he kind, character, or existence of such work” or “[t]he length of
46
Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at page 973.
47
Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at page 972.
48
Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at page 972.

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time such work will last[.]”49
In Mercuro v. Superior Court we held section 970 serves a
fundamental public purpose “to protect the community from the harm inflicted when a
fraudulently induced employment ceases and the former employee is left in the
community without roots or resources and becomes a charge on the community.”50
When
an employer’s conduct is “contrary to public policy and sound morality” it “cannot be
deemed ‘a risk reasonably encompassed within the compensation bargain.’”51
Accordingly, Dore’s emotional distress resulting from Arnold’s fraudulent inducement to
cross state lines to accept employment is not exclusively subject to workers’
compensation.52
Arnold objects to Dore relying on alleged misrepresentations concerning cause for
termination to remove his cause of action for emotional distress from the workers’
compensation system. It argues Dore’s complaint did not rely on these alleged
misrepresentations in pleading intentional infliction of emotional distress. Rather, the
complaint cited false and defamatory statements about Dore and his job performance as
the basis for his emotional injury. We are not persuaded by Arnold’s characterization of
Dore’s complaint.
We agree a defendant moving for summary judgment should not have to try to hit
a moving target. For this reason courts have held the pleadings determine the issues on
summary judgment.53
In this case, however, Dore pled Arnold’s false promises about the
length and nature of his employment in his cause of action for fraudulent
misrepresentation which we discussed in Part II, above. That cause of action specifically
alleged Dore was induced “to leave his former employer [and] relocate to Los Angeles
from Denver, Colorado.” The cause of action for intentional infliction of emotional
49
Labor Code section 970.
50
Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 180, footnote omitted.
51
Gantt v. Sentry Insurance, supra, 1 Cal.4th at pages 1100-1101.
52
Compare Gantt v. Sentry Insurance, supra, 1 Cal.4th at pages 1100-1101 [tort
remedies including emotional distress damages available to employee suffering sexual or
racial discrimination].

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distress alleges “[d]efendants did the acts described in this complaint . . . with the specific
intent to injure [plaintiff] emotionally, mentally [etc.].” We believe this allegation,
although perhaps not the most artful, was sufficient to put Arnold on notice Dore based
his emotional distress cause of action, in part, on the false representations about the job.54
In addition, Dore relied on Arnold’s false representations about the job in his trial court
opposition to summary judgment on the emotional distress cause of action. Thus, Arnold
cannot claim unfair surprise or lack of opportunity to respond in the trial court.
2. Claims for emotional distress based on the employer’s
false statements about the employee and his job
performance may fall outside the “compensation bargain.”
In Livitsanos v. Superior Court our Supreme Court left open the question whether
the Workers’ Compensation Act preempts a cause of action for intentional and negligent
infliction of emotional distress based on the employer’s defamatory statements about the
plaintiff.55
The answer to this question would appear to depend on whether the defamatory
statements in a particular case were “outside the scope and normal risks of
employment.”56
In Cole v. Fair Oaks Fire Protection Dist., our Supreme Court observed:
“In order to properly manage its business, every employer must on occasion review,
criticize, demote, transfer and discipline employees.”57
On the other hand, in Livitsanos
the court observed the seriousness of the employer’s allegations against the employee,
53
See Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66-67.
54
Compare Kovatch v. California Casualty Management Co. (1998) 65
Cal.App.4th 1256, 1277-1278 in which the court construed plaintiff’s intentional
infliction of emotional distress cause of action to be based on his claim for wrongful
termination in violation of public policy because the allegations in the latter were
incorporated by reference into the former.
55
Livitsanos v. Superior Court, supra, 2 Cal.4th at page 756.
56
Livitsanos v. Superior Court, supra, 2 Cal.4th at page 757.
57
Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.

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including charging him with embezzlement and sabotaging the company’s product, raised
an issue whether the employer’s conduct was outside the compensation bargain.58
The answer is further complicated by a subsequent Court of Appeal decision,
relying on Livitsanos, which held a cause of action for defamation was not barred by the
Workers’ Compensation Act but a cause of action for intentional infliction of emotional
distress based on the defamation was bared by the Act.59
In the present case the cause of action for intentional infliction of emotional
distress accuses Arnold of “fabricating and manufacturing stories that were false and
defamatory regarding plaintiff, his performance, his work, work habits and personal
integrity . . . in order to justify a cancellation of the contract and agreement with
plaintiff.” An earlier allegation, incorporated by reference into the emotional distress
cause of action, states Arnold officers made “unfair, unfounded, and incomplete
performance evaluations and false statements about plaintiff.” Neither party presented
any evidence on the summary judgment motion clarifying the nature of these “false
statements” in terms of what was said, to whom it was said and when it was said.
Because the burden was on Arnold as the moving party to show “there is no triable
issue as to any material fact and that [it was] entitled to judgment as a matter of law,”60
the total lack of evidence regarding the false statements precludes us from finding the
cause of action for intentional infliction of emotional distress is preempted by workers’
compensation.
B. A Triable Issue Of Fact Exists As To Whether Arnold Engaged
In Outrageous Conduct.
Arnold maintains Dore cannot establish Arnold acted in an extreme and
outrageous manner.
58
Livitsanos v. Superior Court, supra, 2 Cal.4th at page 757.
59
Davaris v. Cubaleski (1993) 12 Cal.App.4th 1583, 1587-1588, 1591.
60
Code of Civil Procedure section 437c, subdivision (c).

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The evidence Arnold presented in the trial court and the argument it made there
and on appeal shows this contention is based on the faulty premise Dore’s cause of action
for intentional infliction of emotional distress arose from his termination. Although Dore
admitted his termination was the event which triggered his emotional distress,61
just as
Lenk’s termination triggered his,62
Dore’s cause of action, like Lenk’s, did not arise from
his termination but from his employer’s false promises designed to induce him to leave
his existing, secure employment and accept an offer of employment with the defendant.63
Dore’s termination without cause was simply the event by which he discovered Arnold’s
promises were false.
It remains a question of fact for a jury whether Arnold fraudulently induced Dore
to accept its offer of employment and, if so, whether Arnold’s conduct was sufficiently
outrageous to warrant an award of damages for intentional infliction of emotional
distress.64
C. A Triable Issue Of Fact Exists As To Whether Dore Suffered
Severe Emotional Distress.
Arnold makes two arguments in support of its contention Dore cannot establish the
severe emotional distress necessary to support an intentional infliction cause of action. It
contends Dore failed to provide any evidence he suffered from severe emotional distress.
61
At Dore’s deposition he was asked: “Why do you believe the emotional injuries
were caused by Arnold Worldwide’s actions?” Dore answered: “Well, the fact that I was,
as I feel, wrongly terminated; it put me at great financial risk, potentially of losing my
house; the quality of life, which I have worked so hard for was gone; I had a wife, she
was pregnant, so, you know, I was – a lot of unknowns at the moment.”
62
Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at page 967.
63
Compare Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at pages 967, 973.
64
Compare Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at pages 970-973
[upholding jury award of emotional distress damages for fraudulently inducing plaintiff
to accept employment].

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Furthermore, Dore’s admissions his emotional distress was not “disabling” and that he
did not seek medical attention for it show his distress, if any, was not severe.
We reject Arnold’s first argument for the reasons explained in Part II of our
opinion—Dore had no duty to provide evidence to support his claim of severe emotional
distress until Arnold produced evidence showing Dore did not suffer such distress or
evidence showing Dore did not possess, and could not reasonably obtain the needed
evidence.65
As to Arnold’s second argument—Dore’s emotional distress was not “disabling”
nor did he seek medical treatment—Arnold has cited no decision in California or
elsewhere holding evidence of either is indispensable in establishing the severity of the
plaintiff’s emotional distress. Rather, the severity of a plaintiff’s emotional distress is a
jury question “inextricably related to the conduct causing that distress.”66
Behavior which
may be considered outrageous includes abuse of a relationship or position which gives
the defendant power to damage the plaintiff’s interest.67
If Dore can prove Arnold
induced him to leave a long-time, secure position with an employer in Denver with false
promises of job security a jury could, but not necessarily would, find Arnold’s behavior
exceeded the bounds of employer conduct tolerated by a decent society.68
V. ARNOLD WORLDWIDE PARTNERS WAS ENTITLED TO
SUMMARY JUDGMENT BECAUSE THE UNDISPUTED
EVIDENCE SHOWS THERE IS NO BASIS FOR HOLDING IT
LIABLE FOR ANY TORT OR BREACH OF CONTRACT ON
THE PART OF ARNOLD WORLDWIDE, INC.
Dore named Arnold Worldwide Partners, Inc. (AWP) as an additional defendant in
this action.
65
Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pages 853-854.
66
Abelson v. National Union Fire Ins. Co. (1994) 28 Cal.App.4th 776, 789, citation
and internal quotation marks omitted.
67
Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.

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AWP moved for summary judgment on the ground it never employed Dore and it
had no relationship with Dore or Dore’s actual employer, Arnold Worldwide, Inc., which
could result in AWP’s liability to Dore under any of his causes of action. The trial court
granted the motion and entered judgment for AWP. The court found there were no
triable issues of fact which could support AWP’s liability to Dore under his complaint.
The following facts are undisputed.
Dore was initially employed by Arnold Communications, Inc. in April 1999. In
the fall of 2000, while Dore was still its employee, Arnold Communications, Inc.
changed its name to Arnold Worldwide, Inc. (Arnold). All of the individuals with whom
Dore dealt before and during his employment were officers or employees of Arnold.
Arnold issued Dore’s paychecks and provided his employee benefits. Arnold has average
annual revenue of $150 million.
AWP was established in January 2001. Its principal function is to act as a liaison
between the various subsidiaries of Snyder Communications and Snyder’s parent
corporation, Havas a French conglomerate. Aside from being subsidiaries of the same
corporation and having the same person as chief executive officer, there are no other
relevant connections between Arnold and AWP. Each company has its own board of
directors, employees, bank accounts and assets; each maintains its own books, has its
own capital and makes its own hiring and firing decisions.
Based on these undisputed facts the trial court correctly granted judgment to
AWP.
Dore contends the trial court abused its discretion in denying his motion for a
continuance in order to conduct additional discovery into AWP’s role in recruiting,
employing and ultimately terminating him.69
The court should have continued AWP’s
68
Agarwal v. Johnson, supra, 25 Cal.3d at page 946.
69
Code of Civil Procedure section 437c, subdivision (h) states in relevant part: “If
appears from the affidavits submitted in opposition to a motion for summary judgment
. . . that facts essential to justify opposition may exist but cannot, for reasons stated, then

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August 2002 motion for summary judgment, Dore argues, because AWP “obstructed Mr.
Dore’s legitimate attempts to obtain statutorily authorized discovery.” The record does
not support Dore’s argument.
Dore contends he was prejudiced because Charles Kiefer, who submitted a
declaration in support of AWP’s motion for summary judgment, was not mentioned as a
person with knowledge of the facts in AWP’s interrogatory responses. Had Kiefer been
mentioned Dore would have had the opportunity to depose him prior to the hearing on the
motion.
We do not find this argument persuasive for several reasons. Dore’s interrogatory
asked AWP to state the names, addresses and telephone numbers of all persons having
knowledge of facts supporting its claim Dore was not an employee of AWP and had no
employment or contractual relationship with AWP. AWP responded on April 29, 2002
with 11 names, not counting Dore’s. Dore does not explain how he was prejudiced by
not having the opportunity to depose Kiefer, who was not even an AWP employee, when
he did have the opportunity to depose any of the 11 persons identified in the interrogatory
answer. Furthermore, Dore knew from the time AWP filed its answer to the complaint in
January 2002 AWP was denying it had any employment relationship with Dore. Dore
did not have to wait for answers to interrogatories but could have immediately noticed the
deposition of the person at AWP most knowledgeable as to that defense.70
Dore further argues AWP thwarted his discovery efforts by refusing to make
available for depositions numerous persons who might have provided information helpful
in establishing the relationship between him and AWP.71
Again, we are unpersuaded. In order to be entitled to a continuance under section
437c, subdivision (h), the party opposing the motion must show by affidavit “facts
essential to justify opposition may exist.” Thus, “[i]t was incumbent upon plaintiff to
be presented, the court shall deny the motion or order a continuance to permit affidavits
to be obtained or discovery to be had . . . .”
70
Code of Civil Procedure section 2025, subdivision (d)(6).

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show by affidavit that the extensive discovery requested,” here 13 depositions, “could
reasonably lead to evidence necessary to refute the essential facts” shown by AWP.72
Dore’s declaration in support of his request for a continuance does not show facts exist
which could defeat AWP’s motion much less than taking the 13 proposed depositions
could reasonably lead to such facts. Rather, as he admits, the purpose of the depositions
is “to cross-examine and test the foundation of the allegations contained in the
declaration filed in alleged support of [AWP’s] motion for summary adjudication.” The
desire to conduct discover for this purpose does not establish good cause for a
continuance, however, because with a few exceptions not applicable here, “summary
judgment may not be denied on grounds of credibility or for want of cross-examination of
witnesses furnishing affidavits or declarations in support of summary judgment . . . .”73
Furthermore, the reason why the party seeking a continuance to conduct discovery must
show facts essential to justify opposition may exist is to prevent a party who may be “hot
on the trail” of evidence which would counter the summary judgment motion from being
unfairly prejudiced by the opposing party scheduling a hearing on the motion before the
necessary discovery can be completed. Continuances are not intended to allow a party to
do what Dore is attempting to do here—wait on discovery until the other party moves for
summary judgment and then use that party’s declarations in support of its motion as a
guide to conducting discovery in opposition to the motion. If this strategy was permitted
summary judgment motions could be continued for months if not years while the
opposing party engaged in its discovery.
We are also less than sympathetic to Dore’s contention AWP deliberately delayed
complying with his discovery requests to obtain an advantage on its summary judgment
motion. The Discovery Act contains remedies in the form of motions to compel and for
sanctions when the other side attempts to abuse the discovery process. As the trial court
71
See Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 174-175.
72
Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 326.
73
Code of Civil Procedure section 437c, subdivision (e).

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pointed out, Dore did not pursue any of these remedies. Because Dore failed to diligently
enforce his right to discovery when he had the opportunity to do so, the trial court did not
abuse its discretion in denying Dore’s untimely petition for relief after the motion for
summary judgment had been filed.
Finally, it was disingenuous for Dore to claim in mid-August he needed more time
to conduct discovery in opposition to AWP’s summary judgment motion when in July he
had urged AWP to file its motion “forthwith,” suggested a hearing date “in early August”
and even chided its counsel for “wait[ing] so long to file such a motion.”
DISPOSITION
The judgment in favor of Arnold Worldwide Partners is affirmed as to its liability
and reversed as to costs. The judgment in favor of Arnold Worldwide, Inc. is reversed.
The cause is remanded to the trial court with the following directions. The court shall
amend the judgment in favor of Arnold Worldwide Partners to award it its proportionate
share of the costs of suit. The court shall vacate its order granting summary judgment to
Arnold Worldwide, Inc. and issue a new order granting summary adjudication on the
cause of action for negligent misrepresentation only. Arnold Worldwide Partners is
awarded its costs on appeal from appellant. Appellant is awarded his costs on appeal
from Arnold Worldwide, Inc.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JOHNSON, J.
We concur:
PERLUSS, P.J. WOODS, J.

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