Welch v. Metro-Goldwyn-Mayer Film Co.

• Decision Date: 23 December 1988
• Docket Number: No. B022873,METRO-GOLDWYN-MAYER,B022873
• Citation: 207 Cal.App.3d 164,254 Cal.Rptr. 645
• Parties: Previously published at 207 Cal.App.3d 164 207 Cal.App.3d 164, 121 Lab.Cas. P 56,863 Raquel WELCH, an individual, and Raquel Welch Productions, Inc., Plaintiffs and Appellants, v.FILM CO., et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 645

254 Cal.Rptr. 645

Previously published at 207 Cal.App.3d 164

207 Cal.App.3d 164, 121 Lab.Cas. P 56,863

Raquel WELCH, an individual, and Raquel Welch Productions, Inc., Plaintiffs and Appellants, v. METRO-GOLDWYN-MAYER FILM CO., et al., Defendants and Appellants.

No. B022873.

Court of Appeal, Second District, Division 4, California.

Dec. 23, 1988.

As Modified on Denial of Rehearing

Jan. 13, 1989.

Review Granted March 2, 1989.

Latham & Watkins, Max L. Gillam, Milton A. Miller and Reba W. Thomas, Los Angeles, for defendants and appellants.

Slaff, Mosk & Rudman, Edward Mosk and Valerie V. Flugge, Los Angeles, for plaintiffs and appellants.

ARLEIGH M. WOODS, Presiding Justice.

This lawsuit arises from the firing of the motion picture actress Raquel Welch from her starring role in the film "Cannery Row." The jury found in favor of Welch and Raquel Welch Productions, Inc. (hereinafter sometimes collectively referred to as Welch) on counts of breach of contract, conspiracy to induce breach of contract, slander, and breach of the implied covenant of good faith and fair dealing (bad faith). Welch recovered $2 million in compensatory damages and over $8 million in punitive damages from appellants Metro-Goldwyn-Mayer Film Co. (MGM), several successor corporations to MGM (TBS Entertainment Co., Production, Inc., Lab, Inc., and Lot, Inc.), David Begelman (the president of MGM), and Michael Phillips (the producer of the film).

Welch filed a cross-appeal from the trial court's granting of summary judgment on a count of intentional infliction of emotional distress, but has abandoned the cross-appeal in her briefing.

Appellants raise numerous issues on appeal, including that (1) there is no basis for a conspiracy between Phillips and MGM because Phillips's actions were privileged as a matter of law; (2) Welch as an individual lacked standing to sue for conspiracy to induce breach of contract or bad faith because the contract for her services was between MGM and Raquel Welch Productions, Inc.; (3) the trial court should not have permitted the bad faith count to be added at the close of Welch's case-in-chief as an amendment to conform to proof; (4) the bad faith cause of action cannot stand because there was no evidence of a special relationship between Welch and MGM similar to that of an insured to an insurer, and/or because the jury was not instructed on that issue; (5) there was insufficient evidence to show either a conspiracy to induce breach of contract or a bad faith breach of contract; (6) there was insufficient evidence of slander; (7) Welch's counsel committed misconduct in his closing argument; (8) the successor corporations cannot be held liable for the wrongful acts of MGM; and (9) various errors occurred in the jury's award of compensatory and punitive damages.

We find no error, and affirm.

The evidence showed that Welch appeared in about 30 films between 1965 and 1980 and had a reputation as a strong willed professional actress who sometimes clashed with directors. She was considered a sex symbol, and the only serious dramatic role was as a roller derby queen in "Kansas City Bomber." She turned down all film offers between 1977 and 1980, concentrating during that period on a television special and a television drama about an American Indian woman, for which she served as producer as well as actress.

Prior to 1980, Michael Phillips and David Ward had collaborated on two films, one of which was the Academy Award winner, "The Sting." Over several years, Phillips and Ward developed a film package based on the John Steinbeck novellas "Cannery Row" and "Sweet Thursday." Ward wrote the screenplay and was to be the director, although he had never directed a commercial film before. Phillips was to be the producer. An actor named Nick Nolte was to portray the leading male character.

Phillips and Ward had difficulty finding financing for the film. In early 1980, the project was finally accepted by David Begelman, who had just become president of MGM. Phillips and Ward signed contracts with MGM which gave the studio the right to replace either of them if their service proved unsatisfactory.

Begelman insisted that an actress with a recognizable name be selected for the leading female character, a prostitute named Suzy. Numerous actresses were considered, among whom were Welch and Debra Winger.

At 40 years old, Welch relished the chance to direct her career towards more serious roles. She agreed to audition for the part, which was not customary for an established actress, and to perform nude scenes, which she had previously refused to do in any film.

When Welch first met with Ward and Phillips, they asked her about rumors of problems with the director of the television drama. She assured them the problems had concerned her dual role as both producer and actress, not temperament. She agreed with them that Suzy should be a nonglamorous, natural-looking girl with little or no makeup. Ward and Phillips were impressed with Welch's enthusiasm and her reading of the role. They decided they wanted her for the film.

On October 8, 1980, Raquel Welch Productions, Inc. (RWPI), a "loan-out" company utilized by Welch for tax purposes, entered into a contract with MGM to provide Welch's services on the film. Welch was promised $250,000, with payment divided into weekly increments during filming. She agreed to participate in nine weeks of actual filming, and to be available for rehearsals and wardrobe fittings for two weeks before shooting began.

The contract included a standard "pay or play" clause, under which the studio could terminate Welch from the film at any time, but was obligated to pay her the full contract price, unless she failed to fulfill her contractual obligations. It further required that Welch be provided a fully equipped, "star-type" trailer for makeup purposes; her choice of hairdresser and makeup artist, on first call to her; and a wardrobe assistant.

Before filming began, Welch participated in all but one and one-half days of the two-week rehearsal period. She also prepared for her role by going to vintage clothing shops with the costume designer, talking to Ward about her character, and studying historical pictures. She told Begelman that she was delighted to be working on the film, and that if Ward, as a first-time director, was nervous about discussing her performance with her, Begelman could call her directly.

The production company gave the performers a call sheet at the end of each day of filming, indicating which scenes to prepare for and what time to report for makeup and for shooting on the set the next day. Shooting began at 8:00 or 8:30 a.m. each day. In general, the other actors had makeup calls of 7:00 or 7:30 a.m., and set calls of 8 or 8:30 a.m. Welch had requested, and was given, three hours in which to makeup. She actually needed only two hours for makeup and hair, but had a preparatory routine which included yoga and exercise. The call sheets gave her makeup times of 6:00, 6:30 or 7:00 a.m., and set times three hours later, except for one day on which the makeup period was two and one-half hours.

Welch was initially provided a trailer which lacked enough room for a makeup chair in front of the mirror. She asked Kurt Neumann, the production manager, for a larger trailer. She was given a larger, attractive trailer in which a makeup mirror and chair were installed. In her opinion, the new trailer still did not meet her needs. Its narrowness meant that it became very crowded when her assistants were preparing her, and the makeup artist could not move around the makeup chair without climbing over her or the television set. The television set was eventually removed at Welch's request. She also had dark tinting taken off the windows so that natural light could be used. She asked for, and received, a small empty trailer for exercise purposes.

Principal photography began on December 1, 1980. Welch was first called for shooting on Thursday, December 4. The picture was already behind schedule and $84,000 over budget. Welch arrived at her trailer for her scheduled makeup call at 7 a.m., was ready for her 10 a.m. set call, and waited until 5 p.m. before she was used. She had only a long shot and no lines that day.

Welch had no acting call for the next day, December 5. She came into the studio for some publicity photographs, again making up at her trailer.

Welch's next scheduled call was on Monday, December 8. She arrived at the studio early for her 7 a.m. makeup call, was on time for her 10 a.m. set call, and was not asked to perform a scene until after lunch.

The next day, December 9, she was at the studio early for makeup, but her makeup artist arrived late. As they began their preparations, the director, David Ward, came in and asked if she could be ready for an over-the-shoulder shot in about 45 minutes. She agreed, and told him that she was willing to waive the 12-hour period the Screen Actors Guild normally required between performances. Her work that day involved only a few lines of dialogue.

On the next day of filming, December 10, Welch awoke with severe cramps. She had the hairdresser come to her home that morning. She put on her own makeup there with an MGM makeup mirror which Kurt Neumann had had delivered to her home. She arrived at the studio at 9 a.m., one hour before her set call. She told Neumann that she had been able to get ready much faster at home, and that she would like to speed up her makeup time by doing it at home until the trailer problem was sorted out. Neumann said it was "okay" for her to make up at home. Neither Phillips nor Ward told her anything to the contrary. ¹

Actually, Phillips and Ward were not happy about the making up at home, and agreed to it only to avoid a confrontation with Welch. Ward was also unhappy about Welch's late set calls, as he had to begin work each day on scenes which did not require her presence, tended to begin...