Opinion
For Opinion on Hearing, see 89 Cal.Rptr. 737, 474 P.2d 689
Musick, Peeler & Garrett and Bruce A. Bevan, Jr., Los Angeles, for defendant and appellant.
Benjamin Neuman, Beverly Hills, for plaintiff and respondent.
KINGSLEY, Associate Justice.
Defendant contracted with plaintiff Shirley M. Parker (professionally know as Shirley MacLaine) to play the leading role in a musical film based on the musical stage production known as "Bloomer Girl" for a compensation of $750,000. Thereafter, defendant decided not to proceed with the production of that film and so notified plaintiff. It offered, instead of the contemplated employment in "Bloomer Girl," to employ plaintiff as a leading lady in a projected non-musical film entitled "Big Country, Big Man," at the same compensation. Plaintiff refused the offer and sued to recover the agreed guaranteed compensation. The trial court granted her motion for summary judgment. Defendant has appealed. We affirm the judgment.
The employment contract also called for reimbursement of expenses in the amount of $50,000. Plaintiff makes no claim to that reimbursement (since she had none of the expense contemplated) and that provision is not in issue.
It is admitted that, under the contract by which plaintiff was hired to perform in "Bloomer Girl," the defendant was entitled to cancel the production, or to dispense with plaintiff's services, so long as it paid her the guaranteed compensation. Plaintiff's cause of action, therefore, is not actually for a breach of her employment contract by an unlawful discharge; rather it is for a recovery under the contract according to its terms. The parties also are in agreement that defendant's alternative obligation to pay plaintiff $750,000 if it did not utilize her services in "Bloomer Girl" was subject to an implied condition that she mitigate defendant's obligation by accepting other suitable employment. Defendant concedes that, because of the
The "Bloomer Girl" contract gave plaintiff rights to receive royalties on any phonograph albums made of the production; since "Big Country, Big Man" was a non-musical, presumably no phonograph albums were contemplated. The difference is not material. Under the contract, if defendant cancelled production, plaintiff was entitled only to the $750,000 guaranteed salary.
We have decided the case at bench on the theory stated in the text. Since it was tried below, and was briefed and argued here, on that theory, we assume that the parties have correctly interpreted their mutual intention as to the particular contract herein involved. Our acceptance of the theory of mitigation for the purpose of this opinion, however, is not a determination that, in some other lawsuit, involving other parties to another similar contract, the validity of that theory might not be raised.
At some earlier date, prior to the execution of the "Bloomer Girl" contract, plaintiff had read a script of "Big Country, Big Man" and had, at that time, expressed an interest in being considered for a part therein. The "Bloomer Girl" contract had called for plaintiff to both sing and dance, had given her the right to approve the dance director, certain rights with reference to the approval of the picture director and the right to approve the script of the screenplay. The offer to employ her in "Big Country, Big Man," eliminated the provision relative to approval of a dance director on the ground that the substitute play contained no dancing sequences, it eliminated the right of approval of the director of the picture on the stated ground that the time remaining before production was to start was too short to permit "negotiation" over that aspect, and it eliminated the matter of script approval on the theory that plaintiff had already read the script, and again because of the shortage of time. The filming of "Bloomer Girl" was to have taken place in Los Angeles; the filming of "Big Country, Big Man" was to take place in Australia.
On this appeal, defendant contends: (1) that whether the offer to employ plaintiff in "Big Country, Big Man" was one that the law required plaintiff to accept involved issues of fact not capable of being resolved on a motion for summary judgment; and (2) that, if the summary judgment procedure was proper, the record shows that plaintiff was not justified in rejecting the substitute offer. We reject both contentions.
I
Under section 437c of the Code of Civil Procedure, a motion for summary judgment is properly granted where no triable issues exist.
Defendant first argues that the lower court erred in determining that the "Bloomer Girl" contract was "peculiar." Defendant seizes on the word "peculiar" and takes it out of the context in which it was used by the trial court. The lower court used the word "peculiar" in two instances. In referring to the "Bloomer Girl" contract the court said: "This peculiar limited liability of Defendant arises out of the language of Paragraph 2." The court also said: "Since the motion is with reference to a contract, it is necessary to make a few observations as to its peculiar terms."
Defendant argues that, by the use of the word "peculiar," the trial court indicated that it thought that the provision permitting defendant to cancel the production so long as it still paid plaintiff was something unusual and uncommon, and defendant argues that such clauses are, in fact, in common use in the motion picture industry. But we do not read that meaning into the trial court's language. We read the passages above quoted as doing no more than to state the obvious fact that the court, in determining the sufficiency of the substitute offer, must look at the particular provisions of the two contracts before it, whether those provisions appear in, or do not appear in, other contracts not involved in the lawsuit. Defendant's second point is that the lower court erred in determining, as a matter of law, that plaintiff was not required to accept the role in "Big Country, Big Man" to mitigate damages. Defendant argues that if an issue of fact is presented a summary judgment cannot be granted (Gale v. Wood (1952) 112 Cal.App.2d 650, 656, 247 P.2d 67; Haumeder v. Lipsett (1949) 90 Cal.App.2d 167, 202 P.2d 819), and that the question of whether or not respondent did what was reasonable and necessary to mitigate damages is a question of fact for the jury. (Gonzales v. Internat. Assn. of Machinists (1963) 213 Cal.App.2d 817, 29 Cal.Rptr. 190.)
The proposition that a summary judgment cannot be granted if an issue of fact exists is clearly correct as a general statement of the law relating to summary judgments; the second proposition (that the reasonableness of an alleged opportunity to mitigate is a question of fact) is true in some cases, but it is not necessarily an accurate statement of the law for all cases. Defendant has cited no cases dealing with the particular issue herein involved, and it admits that it knows of none. It has cited language, principally from plagiarism cases, in which the appellate courts held that, on the records in those cases, trial courts had properly submitted the issue of similarity to a jury. Those cases are not persuasive. Insofar as defendant relies on cases dealing with other than mitigation of damages in employment cases, they are of no help. In the typical plagiarism case, the similarities and differences are such that reasonable men could differ over the question of copying. And even the cases dealing with employment do not decide the issue herein involved. We agree that, in some instances, the significance of variations in the terms or conditions of employment may be such that it will require a trial to determine whether or not they were of the character that met the rule (discussed hereinafter) that the differences must be substantial. But in other cases, the differences will be such that a court may, and should, determine as a matter of law that the substitute employment relied on was so far removed from that originally contracted for as not to impose on an employee any duty of acceptance. Each case must turn on its own record. We reject the contention that summary judgment may never be used in a case such as the one at bench.
II
As we have pointed out above, the case at bench is not one of an unlawful discharge, but rather one for breach of the provision providing for an employee's compensation. In other words, the present suit is to enforce a contract still in force and not one to recover for an unlawful attempt to terminate a contract. However, the decisions dealing with the problem of mitigation of damages in unlawful discharge cases offer the only analogy to the case before us and we turn to those cases for help in deciding whether or not the trial court ruled correctly as to this case.
One wrongfully discharged from employment is not required to accept other employment of a different or inferior kind in order to mitigate damages. (Gonzales v. Internat. Assn. of Machinists, supra (1963) 213 Cal.App.2d 817, 29 Cal.Rptr. 190; De La Falaise v. Gaumont-British Picture Corp. (1940) 39 Cal.App.2d 461, 469, 103 P.2d 447.) The issue before the trial court, and before us, therefore is whether as a matter of law the employment tendered to plaintiff was so different or so inferior as to fall within that rule. We conclude that it was.
It is obvious that the two plays differed widely: One was a musical with opportunities for plaintiff to display her talents as a singer and dancer; the substitute offered no such opportunity. One was to be filmed in Los Angeles; the other in a foreign country. As to one, plaintiff had the right of detailed script approval; as to the other, she was required to accept a script already fixed. In one, she was to work under the direction either
Defendant contends that the lower court found for plaintiff because the court disbelieved defendant's evidence and that the court is not entitled to determine the truth or falsity of facts in a declaration in opposition to a motion for summary judgment but must leave that for trial. (Stirton v. Pastor (1960) 177 Cal.App.2d 232, 2 Cal.Rptr. 135.) However, it is apparent that the lower court did not disbelieve defendant's facts but found that there were no facts raised by defendant.
Chiefly, defendant relies on the affidavit of Richard Zanuck, its officer in charge of motion picture production. But that affidavit did no more than to state Mr. Zanuck's conclusions that the offer of "Big Country, Big Man" was "in the same general line" of employment as was "Bloomer Girl," that it was not inferior to the employment in "Bloomer Girl," that plaintiff would not suffer in her public image by appearing in "Big Country, Big Man," and that she was not injured by the differences above set forth.
Assuming that the declaration constituted admissible expert opinion as to the matters to which it was directed, it stated no facts--opinion or otherwise--that bore on the issue before the trial court. As we have pointed out above, the issue in this case is not whether acceptance by plaintiff of the offer to perform in "Big Country, Big Man" would have injured her professional standing and reputation, nor even whether such acceptance might actually have enhanced that reputation and standing. The issue was whether the proffered employment was, as a matter of law, so different in material factors from that which she had accepted that she was under no duty to accept it as a substitute. On that issue, Zanuck's declaration gave no factual assistance and it was properly disregarded as immaterial and irrelevant.
The judgment is affirmed.
FILES, P.J., and DUNN, J., concur.
Hearing granted; MOSK, J., did not participate.