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Macklin v. City of Santa Cruz2/5/2002
egarding the covenant of good faith] is plainly subject to the exception that the parties may, by express provisions of the contract, grant the right to engage in the very acts and conduct which would otherwise have been forbidden by an implied covenant of good faith and fair dealing. . . . [ ] This is in accord with the general principle that, in interpreting a contract `an implication . . . should not be made when the contrary is indicated in clear and express words.'. . . As to acts and conduct authorized by the express provisions of the contract, no covenant of good faith and fair dealing can be implied which forbids such acts and conduct. And if defendants were given the right to do what they did by the express provisions of the contract there can be no breach.' " (Carma Developers, (Cal.) Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374.) Stated in another way, where there are a valid express contract and an implied contract on the same subject, they cannot require different results.
In interpreting a contract, a reviewing court applies the following rules. "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ. Code, § 1636.) "The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity." (Civ. Code, § 1638.) "When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . . ." (Civ. Code, § 1639.) The determination of the existence of an ambiguity in a contract is a question of law, and is subject to independent review on appeal. (WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710.)
Here the terms of the Agreement are clear and unambiguous. The purpose of the Agreement is the rehabilitation of the employee. To achieve this purpose the City provides a program that requires, among other things, that the employee submit to "unannounced frequent follow-up alcohol and/or controlled substance testing pursuant to APO II-43, Section F(5)." The APO, in turn, states: "The employee will be subject to at least six (6) unannounced drug/alcohol tests during the first year back to the safety-sensitive position following the violation. Upon the advice of the substance abuse professional, the City may require additional follow-up testing for a period not to exceed sixty (60) months from the date of the employee's return to duty." After receiving Lawrence's recommendation, the City required that Macklin be tested for two years. Since the Agreement clearly specified "unannounced" testing for a maximum period of five years, the City was not required to inform Macklin as to the exact duration of this testing period. Moreover, to impose a notification requirement on the City would undermine the purpose of the Agreement, which is to deter and rehabilitate the employee. Accordingly, when the City complied with the express terms of the Agreement by not informing Macklin as to the duration of testing, it did not breach the covenant of good faith and fair dealing.
Macklin contends that the City breached the covenant of good faith and fair dealing by refusing to provide a retest of the split urine sample.
"In reviewing the evidence on such an appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether the
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