Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1991)

No. 88-6184.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and CANBY, Circuit Judges, and REED,*  District Judge.

MEMORANDUM** 

Jacqueline Hanna and other female longshoreworkers (henceforth "Hanna") appeal the district court's order denying their motion to intervene and enforce their interpretation of paragraph B.5 of the dissent decree in Golden v. Pacific Maritime Ass'n, Civ. No. 80-4770-RMT (C.D. Cal.) . We reverse.

BACKGROUND

Hanna is a longshoreworker in the Los Angeles-Long Beach Port and is, therefore, a member of the plaintiff class in Golden, which charged gender discrimination in hiring practices for longshoreworkers and clerks at the Port. Hanna was denied permission to take the test qualifying her to transfer to clerk registration, because she had not worked for five years as a longshoreworker, which the collective bargaining agreement specified as a prerequisite for transfer.

Hanna moved to intervene and asked the district court to enforce the consent decree by ordering her transfer to clerk registration. Her motion was based on paragraph B.5 of the consent decree, which requires that "no less than thirty percent (30%) of the persons transferred from longshore work to clerk registration at the port shall be women." The district court denied her motion, adopting the interpretation of the consent decree offered by A. Thomas Hunt, the attorney for the Golden class.1  Hunt interpreted paragraph B.5 as requiring 30% of all new clerk registrations to be women, regardless of source. He based that interpretation on other provisions in the consent decree which, according to him, rendered the literal terms of paragraph B.5 ambiguous, and on the intent of the parties, as supported by extrinsic evidence.

We review de novo the district court's interpretation of the consent decree, but that review is tempered by deference to the interpretation of the district court, which oversaw the process leading up to the consent decree. Vertex Dist. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 893 (9th Cir. 1982).

The critical issue in interpreting this consent decree is whether extrinsic evidence is admissible to modify the literal terms of paragraph B.5. That issue must be resolved by applying principles of California contract law. Miller v. Fairchild Industries, Inc., 797 F.2d 727, 733 (1986).

Under California law, " [t]he 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 contract is reasonably susceptible." Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal. Rptr. 561, 564 (1968). Thus, even if a contract appears completely unambiguous, the court must admit extrinsic evidence, as a threshold matter, to see whether that evidence creates an ambiguity. "However, if the extrinsic evidence advances an interpretation to which the contract is not reasonably susceptible, the extrinsic evidence is not admissible." Barris Industries, Inc. v. Worldvision Enterprises, Inc., 875 F.2d 1446, 1450 (9th Cir. 1989).

The defendant-appellees here introduced extrinsic evidence that the parties intended paragraph B.5's 30% requirement to apply to all new clerk registrants, regardless of source. The question, then, is whether, that interpretation provides "a meaning to which the language of the contract is reasonably susceptible." Thomas Drayage, 69 Cal. Rptr. at 564. We hold that it does not.

The relevant portions of the consent decree provide as follows:

Paragraph B.4 The defendants shall adopt the long range goal of employing women as marine clerks at the Port in sufficient numbers to eliminate the continuing effects of any possible past discrimination. This long range goal shall be deemed achieved when twenty-five (25.0%) of all registered marine clerks at the Port are women....

Paragraph B.5 In order to meet the long range goal, each calendar year beginning in 1983, no less than thirty percent (30.0%) of the persons transferred from longshore to clerk registration at the Port shall be women. During the effective term of this Decree, defendants shall in good faith engage in reasonable efforts to meet the above percentage goals. The above-stated percentage goals shall apply without regard to the method adopted by the ILWU and PMA to fill marine clerk positions at the Port.

Paragraph D.11 The defendants shall not add to the marine clerk registry by any method during the calendar year 1982, other than as previously set forth, provided that nothing in this Decree shall prohibit the defendants from registering the children of deceased longshoreman and marine clerks in accordance with the terms of the "permissive rule" set forth more particularly in the Pacific Coast Longshore and Clerk Contract Agreement.

Paragraph D.12 All persons who become registered marine clerks or registered longshore workers at the Port, whether by new registration, by transfers, or by other procedures, shall be counted in determining whether the goals of this Decree have been met.

By its terms, the first sentence of paragraph B.5 unambiguously requires that 30% of the transfers from longshore to clerk be women. The last sentence of paragraph B.5, and Paragraph D.12 may be ambiguous, given the clear mandate of the first sentence of paragraph B.5. It is not a reasonable clarification of that ambiguity, however, to contradict or ignore the literal terms of the first sentence in paragraph B.5, especially when all of those provisions can be harmonized by a perfectly natural and unstrained interpretation which give effect to each clause. The rule of Pacific Gas & Electric v. Thomas Drayage does not displace the rules that the contract must be read so as to give effect to every part thereof, Cal.Civ.Code Sec. 1641, and that consent decrees must be interpreted according to the "natural sense" of their language, United States v. Armour & Co., 402 U.S. 673, 678 (1971), rather than adopting a "strained interpretation." United States v. Atlantic Refining Co., 360 U.S. 19, 22 (1959).

A perfectly natural and unstrained interpretation of the last sentence of paragraph B.5 is that it requires that all persons, however hired, who become registered as clerks shall be counted toward the long-term goal that 25% of the clerks be women. Thus, the last sentence of paragraph B.5 complements the first: regardless of how the 25% goal is met, 30% of the longshore-to-clerk transfers must be women. In short, to reach the goal of 25%, defendants can register women clerks from any source, so long as 30% of those transferred from longshore positions are women.

Paragraph D.12 conforms to that interpretation. Not only does it repeat the requirement we have just offered for the last sentence of paragraph B.5; there is a natural explanation for why that repetition is appropriate. Referring to the provision of paragraph D.11, paragraph D.12 requires that children of deceased longshoreworkers registered as clerks via the "permissive" method must be counted in determining whether the 25% and 30% requirements of paragraph B are met.

The interpretation which appellees urge, and for which appellees offer supporting extrinsic evidence, requires that an express term of the consent decree be contradicted. Where all the provisions of the consent decree can be harmonized without resort to strained interpretation, we decline to find that an interpretation contradicting an express term provides "a meaning to which the language of the contract is reasonably susceptible." Thomas Drayage, 69 Cal. Rptr. at 564.

CONCLUSION

The order of the district court is reversed. We remand for further proceedings consistent with this decision.

REVERSED.

 *

The Honorable Edward C. Reed, Jr., Chief Judge, United States District Court for the District of Nevada, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Hanna's motion was both a motion to intervene and a motion to enforce her interpretation of the consent decree. Although the district court's order states, "the motion ... for leave to intervene and for enforcement of the Consent Decree is respectfully denied," we read the order as a decision on the merits, but not as a denial of Hanna's right to intervention. The parties all agree that Hanna was entitled to intervention. Our review of the record convinces us that Hanna was not taken by surprise when the court ruled on the merits of the disputed interpretation of the decree. Hanna had ample opportunity to present its position on that issue