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Parker [actress Shirley MacLaine] v. Twentieth Century-Fox Film Corp.
3 Cal. 3d 176 (Cal. 1970)
Burke, J.
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 the 34 numbered provisions or articles of the original contract. n1 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. n2 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 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.
Also, the court may consider facts stipulated to by the parties and facts which are
properly the subject of judicial notice.
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. 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.
In the present case defendant has raised no issue of reasonableness of
efforts by plaintiffs 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. n5
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.
Statements found in affidavits submitted by defendant in opposition to
plaintiff's summary judgment motion, to the effect that the "Big County" 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
judgment.
In view of the determination that defendant failed to present any facts
showing the existence of a factual issue with respect to its sole defense -- plaintiff's
rejection of its substitute employment offer in mitigation of damages -- we need not
consider plaintiff's further contention that for various reasons, including the provisions
of the original contract set forth in footnote 1, ante, plaintiff was excused from
attempting to mitigate damages.
The judgment is affirmed.
Sullivan, Acting C. J. (dissenting)
The basic question in this case is whether or not plaintiff acted
reasonably in rejecting defendant's offer of alternate employment. The answer depends upon
whether that offer (starring in "Big Country, Big Man") was an offer of work
that was substantially similar to her former employment (starring in "Bloomer
Girl" ) or of work that was of a different or inferior kind. To my mind this is a
factual issue which the trial court should not have determined on a motion for summary
judgment. The majority have not only repeated this error but have compounded it by
applying the rules governing mitigation of damages in the employer-employee context in a
misleading fashion. Accordingly, I respectfully dissent.
The familiar rule requiring a plaintiff in a tort or contract action to
mitigate damages embodies notions of fairness and socially responsible behavior which are
fundamental to our jurisprudence. Most broadly stated, it precludes the recovery of
damages which, through the exercise of due diligence, could have been avoided. Thus, in
essence, it is a rule requiring reasonable conduct in commercial affairs. This general
principle governs the obligations of an employee after his employer has wrongfully
repudiated or terminated the employment contract. Rather than permitting the employee
simply to remain idle during the balance of the contract period, the law requires him to
make a reasonable effort to secure other employment. n1
He is not obliged, however, to seek or accept any and all types of work which may be
available. Only work which is in the same field and which is of the same quality need be
accepted. n2
Over the years the courts have employed various phrases to define the
type of employment which the employee, upon his wrongful discharge, is under an obligation
to accept. Thus in California alone it has been held that he must accept employment which
is "substantially similar;" "comparable employment;" employment
"in the same general line of the first employment;" "employment in a
similar capacity;" employment which is "not . . . of a different or
inferior kind.
For reasons which are unexplained, the majority cite several of these
cases yet select from among the various judicial formulations which they contain one
particular phrase, "Not of a different or inferior kind," with which to analyze
this case. I have discovered no historical or theoretical reason to adopt this phrase,
which is simply a negative restatement of the affirmative standards set out in the above
cases, as the exclusive standard. Indeed, its emergence is an example of the dubious
phenomenon of the law responding not to rational judicial choice or changing social
conditions, but to unrecognized changes in the language of opinions or legal treatises.
However, the phrase is a serviceable one and my concern is not with its use as the
standard but rather with what I consider its distortion.
The relevant language excuses acceptance only of employment which is of
a different kind. It has never been the law that the mere existence of differences
between two jobs in the same field is sufficient, as a matter of law, to excuse an
employee wrongfully discharged from one from accepting the other in order to mitigate
damages. Such an approach would effectively eliminate any obligation of an employee to
attempt to minimize damage arising from a wrongful discharge. The only alternative job
offer an employee would be required to accept would be an offer of his former job by his
former employer.
Although the majority appear to hold that there was a difference
"in kind" between the employment offered plaintiff in "Bloomer Girl"
and that offered in "Big Country," an examination of the opinion makes crystal
clear that the majority merely point out differences between the two films (an obvious
circumstance) and then apodically assert that these constitute a difference in the kind of
employment. The entire rationale of the majority boils down to this: that the "mere
circumstances" that "Bloomer Girl" was to be a musical review while
"Big Country" was a straight drama "demonstrates the difference in
kind" since a female lead in a western is not "the equivalent of or
substantially similar to" a lead in a musical. This is merely attempting to prove the
proposition by repeating it. It shows that the vehicles for
the display of the star's talents are different but it does not prove that her employment
as a star in such vehicles is of necessity different in kind and either inferior or
superior.
I believe that the approach taken by the majority (a superficial
listing of differences with no attempt to assess their significance) may subvert a
valuable legal doctrine. n5 The inquiry in cases such
as this should not be whether differences between the two jobs exist (there will always be
differences) but whether the differences which are present are substantial enough to
constitute differences in the kind of employment or, alternatively, whether they render
the substitute work employment of an inferior kind.
It seems to me that this inquiry involves, in the instant case at
least, factual determinations which are improper on a motion for summary judgment.
Resolving whether or not one job is substantially similar to another or whether, on the
other hand, it is of a different or inferior kind, will often (as here) require a critical
appraisal of the similarities and differences between them in light of the importance of
these differences to the employee. This necessitates a weighing of the evidence, and it is
precisely this undertaking which is forbidden on summary judgment.
This is not to say that summary judgment would never be available in an
action by an employee in which the employer raises the defense of failure to mitigate
damages. No case has come to my attention, however, in which summary judgment has been
granted on the issue of whether an employee was obliged to accept available alternate
employment. Nevertheless, there may well be cases in which the substitute employment is so
manifestly of a dissimilar or inferior sort, the declarations of the plaintiff so complete
and those of the defendant so conclusionary and inadequate that no factual issues exist
for which a trial is required. This, however, is not such a case.
It is not intuitively obvious, to me at least, that the leading female
role in a dramatic motion picture is a radically different endeavor from the leading
female role in a musical comedy film. Nor is it plain to me that the rather qualified
rights of director and screenplay approval contained in the first contract are highly
significant matters either in the entertainment industry in general or to this plaintiff
in particular. Certainly, none of the declarations introduced by plaintiff in support of
her motion shed any light on these issues. Nor do they attempt to explain why she
declined the offer of starring in "Big Country, Big Man." Nevertheless, the
trial court granted the motion, declaring that these approval rights were
"critical" and that their elimination altered "the essential nature of the
employment."
. . .
I cannot accept the proposition that an offer which eliminates any
contract right, regardless of its significance, is, as a matter of law, an offer of
employment of an inferior kind. Such an absolute rule seems no more sensible than the
majority's earlier suggestion that the mere existence of differences between two jobs is
sufficient to render them employment of different kinds. Application of such per se rules
will severely undermine the principle of mitigation of damages in the employer-employee
context.
I remain convinced that the relevant question in such cases is whether
or not a particular contract provision is so significant that its omission creates
employment of an inferior kind. This question is, of course, intimately bound up in what I
consider the ultimate issue: whether or not the employee acted reasonably. This will
generally involve a factual inquiry to ascertain the importance of the particular contract
term and a process of weighing the absence of that term against the countervailing
advantages of the alternate employment. In the typical case, this will mean that summary
judgment must be withheld.
In the instant case, there was nothing properly before the trial court
by which the importance of the approval rights could be ascertained, much less evaluated.
Thus, in order to grant the motion for summary judgment, the trial court misused judicial
notice. In upholding the summary judgment, the majority here rely upon per se rules which
distort the process of determining whether or not an employee is obliged to accept
particular employment in mitigation of damages.
I believe that the judgment should be reversed so that the issue of
whether or not the offer of the lead role in "Big Country, Big Man" was of
employment comparable to that of the lead role in "Bloomer Girl" may be
determined at trial.