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Parker v. Twentieth Century Fox Film Corp., Supreme Court of CA, 1970 Should the court have allowed have allowed Big Country to be used by ∆ in mitigation argument? Issue
Can ∆’s offer of alternate employment mitigate the damages from the breach of the original employment contract?
Reasoning
Rule
Facts
Parker (Shirley MacLaine) contracted with ∆ to be the star of a musical called “Bloomer Girl” and to be filmed in LA. She was to receive $53,571.42 per week for a total of $750K. Studio notified Parker that they were no longer making the movie and offered her another K, under mostly the same terms, to star in another movie “Big Country, Big Man”. The new movie was a western and was to be filmed in Australia – the new K did excluded director and screenplay approvals she had under first K. Studio gave ∏ one week to accept. The O lapsed without her acceptance. She seeks recovery for agreed compensation.
Reasonableness argument was without merit – it is not an element of a discharged employee’s option to reject, or fail to seek, different or inferior employment ∏’s failure to accept ∆’s tendered substitute employment could not be applied in mitigation of damages because the O of the Big Country lead was both different and inferior – the 2 films were very different (one relied on her talents and was in LA; other, a western, takes place in an Australian mine)
A discharged employee can recover the amount of salary agreed upon for period of employment – (minus) what employer can prove employee earned or could reasonably have earned under other employment. Before other employment can be used in mitigation, ∆ has to show that it was comparable and not inferior Deprivation or infringement on an employee’s rights under an original K converts the available “other employment” relied upon by employer to mitigate damages, into inferior employment
Dissent: it should’ve been a factual issue whether the new film was substantially similar rather than inferior. The law requires her to make reasonable effort to secure alternative employment rather than sit idle. The law required her to look for work that is “substantially similar” not “not of a different or inferior kind”. They were different films but they are not different kinds of employment. Removing clauses from Ks does not a matter of law make the new employment inferior without understating the significance of these clauses which ∏ did not offer and court accepted as judicial notice.
Held Procedure P argues D argues
Affirmed Summary judgment for ∏ for $750K. Studio appeals. Suring for: 1) breach of K, and 2) $ due under K K provision said: “we are obligated to pay you the guaranteed compensation herein provided for” Yes there was “anticipatory repudiation” – but not money is due – ∏ did not mitigate her damages by accepting other offer made to her. It is not reasonable of her not to accept Big Country.