Parker v. Twentieth Century-Fox Film Corp.

• Decision Date: 30 September 1970
• Docket Number: CENTURY-FOX
• Citation: 3 Cal.3d 176,474 P.2d 689,89 Cal.Rptr. 737,44 A.L.R.3d 615
• Court: California Supreme Court
• Parties: , 474 P.2d 689, 44 A.L.R.3d 615 Shirley MacLaine PARKER, Plaintiff and Respondent, v. TWENTIETHFILM CORPORATION, Defendant and Appellant. L.A. 29705.

Page 737

89 Cal.Rptr. 737

3 Cal.3d 176, 474 P.2d 689, 44 A.L.R.3d 615

Shirley MacLaine PARKER, Plaintiff and Respondent, v. TWENTIETH CENTURY-FOX FILM CORPORATION, Defendant and Appellant.

L.A. 29705.

Supreme Court of California,

In Bank.

Sept. 30, 1970.

Rehearing Denied Oct. 28, 1970.

Musick, Peeler & Garrett and Bruce A. Bevan, Jr., Los Angeles, for defendant and appellant.

Benjamin Neuman, Beverly Hills, for plaintiff and respondent.

BURKE, Justice.

Defendant Twentieth Century-Fox Film Corporation appeals from a summary judgment granting to plaintiff the recovery of agreed compensation under a written contract for her services as an actress in a motion picture. As will appear, we have concluded that the trial court correctly ruled in plaintiff's favor and that the judgment should be affirmed.

Plaintiff is well known as an actress, and in the contract between plaintiff and defendant is sometimes referred to as the 'Artist.' Under the contract, dated August 6, 1965, plaintiff was to play the female lead in defendant's contemplated production of a motion picture entitled 'Bloomer Girl.' The contract provided that defendant would pay plaintiff a minimum 'guaranteed compensation' of '53,571.42 per week for 14 weeks commencing May 23, 1966, for a total of $750,000. Prior to May 1966 defendant decided not to produce the picture and by a letter dated April 4, 1966, it notified plaintiff of that decision and that it would not 'comply with our obligations to you under' the written contract.

By the same letter and with the professed purpose 'to avoid any damage to you,' defendant instead offered to employ plaintiff as the leading actress in another film tentatively entitled 'Big Country, Big Man' (hereinafter, 'Big Country'). The compensation offered was identical, as were 31 of [3 Cal.3d 180] the 34 numbered provisions or articles of the original contract. ¹ Unlike 'Bloomer Girl,' however, which was to have been a musical production, 'Big Country' was a dramatic 'western type' movie. 'Bloomer Girl' was to have been filmed in California; 'Big Country' was to be produced in Australia. Also, certain terms in the proffered contract varied from those of the original. ² Plaintiff was given one week within which to accept; she did not and the offer lapsed. Plaintiff then commenced this action seeking recovery of the agreed guaranteed compensation.

The complaint sets forth two causes of action. The first is for money due under the contract; the second, based upon the same allegations as the first, is for damages resulting from defendant's breach of contract. Defendant in its answer admits the existence and validity of the contract, that plaintiff complied with all the conditions, covenants and promises and stood ready to complete the performance, and that defendant breached and 'anticipatorily repudiated' the contract. It denies, however, that any money is due to plaintiff either under the contract or as a result of its breach, and pleads as an affirmative defense to both causes of action plaintiff's allegedly deliberate failure to mitigate damages, asserting that she unreasonably refused to accept its offer of the leading role in 'Big Country.'

Plaintiff moved for summary judgment under Code of Civil Procedure section 437c, the motion was granted, and summary judgment for $750,000 plus interest was entered in plaintiff's favor. This appeal by defendant followed.

The familiar rules are that the matter to be determined by the trial court on a motion for summary judgment is whether facts have been presented which give rise to a triable factual issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits or declarations ³ in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue of fact. The affidavits of the moving party are strictly construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. The moving party cannot depend upon allegations in his own pleadings to cure deficient affidavits, nor can his adversary rely upon his own pleadings in lieu or in support of affidavits in opposition to a motion; however, a party can rely on his adversary's pleadings to establish facts not contained in his own affidavits. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436--437, 74 Cal.Rptr. 895, 450 P.2d 271, and cases cited.) Also, the court may consider facts stipulated to by the parties and facts which are properly the subject of judicial notice. (Ahmanson Bank & Trust Co. v. Tepper (1969) 269 Cal.App.2d 333, 342, 74 Cal.Rptr. 774; Martin v. General Finance Co. (1966) 239 Cal.App.2d 438, 442, 48 Cal.Rptr. 773; Goldstein v. Hoffman (1969) 213 Cal.App.2d 803, 814, 29 Cal.Rptr. 334; Thomson v. Honer (1960) 179 Cal.App.2d 197, 203, 3 Cal.Rptr. 791.)

As stated, defendant's sole defense to this action which resulted from its deliberate breach of contract is that in rejecting defendant's substitute offer of employment plaintiff unreasonably refused to mitigate damages.

The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. (W. F. Boardman Co. v. Petch (1921) 186 Cal. 476, 484, 199 P. 1047; De Angeles v. Roos Bros., Inc. (1966) 244 Cal.App.2d 434, 441--442, 52 Cal.Rptr. 783; De La Falaise v. Gaumont-British P. Corp. (1940) 39 Cal.App.2d 461, 469, 103 P.2d 447, and cases cited; see also Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607--608, 83 Cal.Rptr. 202, 463 P.2d 426.) ⁴ However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee's rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. (Gonzales v. Internat. Assn. of Machinists (1963) 213 Cal.App.2d 817, 822--824, 29 Cal.Rptr. 190; Harris v. Nat. Union, etc., Cooks and Stewards (1953) 116 Cal.App.2d 759, 761, 254 P.2d 673; Crillo v. Curtola (1949) 91 Cal.App.2d 263, 275, 204 P.2d 941; De La Falaise v. Gaumont-British P. Corp, supra, 39 Cal.App.2d 461, 469, 103 P.2d 447; Schiller v. Keuffel & Esser Co. (1963) 21 Wis.2d 545, 124 N.W.2d 646, 651; 28 A.L.R. 736, 749; 22 Am.Jur.2d, Damages, §§ 71--72, p. 106.)

In the present case defendant has raised no issue of Reasonableness of efforts by plaintiff to obtain other employment; the sole issue is whether plaintiff's refusal of defendant's substitute offer of 'Big Country' may be used in mitigation. Nor, if the 'Big Country' offer was of employment different or inferior when compared with the original 'Bloomer Girl' employment, is there an issue as to whether or not plaintiff acted reasonably in refusing the substitute offer. Despite defendant's arguments to the contrary, no case cited or which our research has discovered holds or suggests that reasonableness is an element of a wrongfully discharged employee's option to reject, or fail to seek, different or inferior employment lest the possible earnings therefrom be charged against him in mitigation of damages. ⁵

Applying the foregoing rules to the record in the present case, with all intendments in favor of the party opposing the summary judgment motion--here, defendant--it is clear that the trial court correctly ruled that plaintiff's failure to accept defendant's tendered substitute employment could not be applied in mitigation of damages because the offer of the 'Big Country' lead was of employment both different and inferior, and that no factual dispute was presented on that issue. The mere circumstance that 'Bloomer Girl' was to be a musical review calling upon plaintiff's talents as a dancer as well as an actress, and was to be produced in the City of Los Angeles, whereas 'Big Country' was a straight dramatic role in a 'Western Type' story taking place in an opal mine in Australia, demonstrates the difference in kind between the two employments; the female lead as a dramatic actress in a western style motion picture can by no stretch of imagination be considered the equivalent of or substantially similar to the lead in a song-and-dance production.

Additionally, the substitute 'Big Country' offer proposed to eliminate or impair the director and screenplay approvals accorded to plaintiff under the original 'Bloomer Girl' contract (see fn. 2, Ante), and thus constituted an offer of inferior employment. No expertise or judicial notice is required in order to hold that the deprivation or infringement of an employee's rights held under an original employment contract converts the available 'other employment' relied upon by the employer to mitigate damages, into inferior employment which the employee need not seek or accept. (See Gonzales v. Internat. Asst. of Machinists, Supra, 213 Cal.App.2d 817, 823--824, 29 Cal.Rptr. 190; and fn. 5, ante.)

Statements found in affidavits submitted by defendant in opposition to plaintiff's summary judgment motion, to the effect that the 'Big Country' offer was not of employment different from or inferior to that under the 'Bloomer Girl' contract, merely repeat the allegations of defendant's answer to the complaint in this action, constitute only conclusionary assertions with respect to undisputed facts, and do not give rise to a triable factual issue so as to defeat the motion for summary...