3 Cal. 3d 176, 474 P.2d 689 (1970)
Plaintiff Shirley MacLaine Parker, a well-known actress, entered into a written contract with defendant Twentieth Century-Fox Film Corporation dated August 6, 1965, under which she was to play the female lead in the contemplated motion picture production of 'Bloomer Girl'.
The contract specified that defendant would pay plaintiff a minimum guaranteed compensation of $53,571.42 per week for fourteen weeks commencing May 23, 1966, for a total of $750,000.1 The production was to be a musical filmed in California.2
On April 4, 1966, defendant notified plaintiff by letter that it had decided not to produce 'Bloomer Girl' and would not comply with its obligations under the contract.3 In the same letter, defendant offered plaintiff the leading role in a different film tentatively entitled 'Big Country, Big Man,' which was to be a dramatic western-type motion picture produced in Australia with identical compensation.4 The substitute offer eliminated or impaired plaintiff's rights to approve the director and screenplay that had been included in the original contract, and it did not require a dance director. Plaintiff was given one week to accept the substitute offer, but she did not do so and the offer lapsed.5
Plaintiff commenced this action seeking recovery of the agreed guaranteed compensation, setting forth causes of action for money due under the contract and for damages resulting from defendant's breach.6 In its answer, defendant admitted the existence and validity of the contract, that plaintiff had complied with all conditions and stood ready to perform, and that it had breached and anticipatorily repudiated the contract, but denied that any money was due and asserted as an affirmative defense that plaintiff had deliberately failed to mitigate damages by unreasonably refusing the substitute employment offer.7
Plaintiff moved for summary judgment under Code of Civil Procedure section 437c, which the trial court granted, entering judgment in plaintiff's favor for $750,000 plus interest.8 Defendant appealed from the summary judgment to the Supreme Court of California.9
Whether the defendant's offer of substitute employment in 'Big Country, Big Man' was of a different or inferior kind from the employment under the original 'Bloomer Girl' contract?10
The established rule governing mitigation of damages in employment contract cases requires that an employer seeking to reduce damages by showing other employment opportunities must demonstrate that the other employment was comparable or substantially similar to the position from which the employee was wrongfully discharged.11 Rejection of employment that is different or inferior in kind may not be used to mitigate damages.12 This principle ensures that an employee is not forced to accept work that alters the fundamental nature of the original agreement, such as changes in the type of production, location, or contractual protections like approval rights over key creative elements.13
Yes. The original contract called for Parker to star in a musical production filmed in California that included specific approval rights over the director and screenplay.14 The substitute offer instead required her to star in a dramatic western filmed in Australia and removed those approval rights while eliminating the need for a dance director.15 These distinctions in the artistic medium, geographic location, and retained contractual protections establish that the offered employment was both different in kind and inferior.16
No triable issue of fact exists on this point because the undisputed contract terms and production details demonstrate the mismatch without requiring further evidence.17
The offer of substitute employment was of a different and inferior kind, so it could not be used to mitigate damages.18
Related opinions on this issue
Justice Sullivan dissented on the ground that the question of whether the two roles were substantially similar or of a different and inferior kind presented a factual issue requiring trial rather than summary judgment.19 He emphasized that differences between films do not automatically translate into differences in the kind of employment.20 The majority's approach of listing obvious distinctions without assessing their significance to the employee distorts the mitigation doctrine.21
Sullivan further contended that the trial court improperly relied on judicial notice of industry practices without affording the parties the required hearing under Evidence Code section 455.22 Per se rules about eliminated contract rights would undermine the obligation to mitigate damages in future cases.23
Whether the plaintiff's refusal of the substitute offer could be used in mitigation of damages?24
Before an employer may deduct projected earnings from other employment in mitigation of damages for breach of an employment contract, the employer bears the burden of proving that the alternative position was comparable or substantially similar to the one lost.25 An employee remains free to reject offers of employment that differ in kind or are inferior without suffering a reduction in recoverable damages.26 This allocation of proof protects the employee's contractual expectations while still encouraging reasonable efforts to secure equivalent work.27
Yes. Defendant admitted breaching the original contract yet offered no evidence that the 'Big Country, Big Man' role was comparable or substantially similar.28 The change from a California musical requiring dance performance and creative approvals to an Australian dramatic western without those protections rendered the substitute inferior as a matter of law.29 Because the employment was different and inferior, Parker's refusal could not be invoked to reduce the damages owed under the guaranteed compensation provision.30
The absence of any factual dispute on this element entitled plaintiff to judgment without trial on the mitigation defense.31
The plaintiff's refusal of the substitute offer could not be used in mitigation of damages.32
Related opinions on this issue
Justice Sullivan maintained that the reasonableness of Parker's refusal and the comparability of the roles constituted factual questions that could not be resolved on summary judgment.33 He argued that the majority's per se conclusion that any loss of approval rights creates inferior employment would discourage mitigation.34 A proper inquiry requires weighing the practical importance of those rights to the particular employee in the context of the entertainment industry.35
Sullivan stressed that the inquiry must focus on whether differences are substantial enough to constitute a difference in kind or render the work inferior.36
Whether the trial court properly granted summary judgment where the defendant raised the mitigation defense based on the substitute offer?37
Summary judgment is appropriate when the moving party's affidavits would sustain a judgment in its favor and the opposing party fails to present facts sufficient to raise a triable issue.38 When the sole defense rests on an offer of employment that is undisputedly different and inferior, no factual dispute exists and summary judgment is proper.39 The court must strictly construe the moving party's showing and resolve doubts against granting the motion, yet may rely on the parties' admissions and the plain terms of the contracts at issue.40
Yes. Defendant's answer admitted the contract, plaintiff's readiness to perform, and the breach, leaving only the mitigation defense.41 The undisputed facts showed the substitute role differed in medium, location, and contractual protections.42 Defendant's opposing declarations contained only conclusionary assertions that the roles were comparable, which are insufficient to create a triable issue under established summary judgment standards.43 The trial court therefore correctly granted judgment for the full guaranteed compensation without needing to reach additional excuses for non-mitigation.44
The trial court properly granted summary judgment for plaintiff.45
Related opinions on this issue
Justice Sullivan concluded that summary judgment was improper because the record lacked sufficient evidence to determine whether the differences between the roles were substantial enough to render the substitute employment inferior.46 He noted that plaintiff's declarations provided no information on the significance of the approval rights or why she declined the offer.47 This forced the trial court to rely on erroneous judicial notice.48
A trial was necessary to weigh the evidence on comparability.49 Sullivan warned that the majority's approach would encourage per se rules that undermine mitigation principles.50