Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

Exercise 5

FACTS Shirley MacLaine Parker, a well-known actress, contracted with Twentieth Century-Fox Film Corporation in August 1965 to play the female lead in Fox's upcoming production of Bloomer Girl, a motion picture musical that was to be filmed in California. Fox agreed to pay Parker $750,000 for fourteen weeks of her services. Fox decided to cancel its plans for Bloomer Girl before production had begun and, instead, offered Parker the female lead in another film, Big Country, Big Man, a dramatic western to be filmed in Australia. The compensation offered was identical, but Parker's right to approve the director and screenplay would have been eliminated or altered by the Big Country proposal. She refused to accept and brought suit to recover the $750,000 for Fox's breach of the Bloomer Girl contract. Fox's sole defense in its answer was that it owed no money to Parker because she had deliberately failed to mitigate or reduce her damages by unreasonably refusing to accept the Big Country lead. Parker filed a motion for summary judgment. Fox, in opposition to the motion, claimed, in effect, only that the Big Country offer was not employment different from or inferior to that under the Bloomer Girl contract. The trial court granted Parker a summary judgment and Fox appealed.
DECISION Summary judgment affirmed.
OPINION Burke, J. 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. [Citations.] Also, the court may consider facts stipulated to by the parties and facts which are properly the subject of judicial notice. [Citations.]
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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 *** 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. [Citation.]
INTERPRETATION A court will grant summary judgment when there are no issues of fact to be determined by trial.
CRITICAL THINKING QUESTION When should a court grant summary judgment? Explain.