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 affidavits of the moving party are strictly construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. 3 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. Summary judgment is proper only if the affidavits or declarations fn. The court may not pass upon the issue itself. 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.
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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. 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." 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. 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. The complaint sets forth two causes of action. Plaintiff then commenced this action seeking recovery of the agreed guaranteed compensation. 2 Plaintiff was given one week within which to accept she did not and the offer lapsed. Also, certain terms in the proffered contract varied from those of the original. "Bloomer Girl" was to have been filmed in California "Big Country" was to be produced in Australia. 1 Unlike "Bloomer Girl," however, which was to have been a musical production, "Big Country" was a dramatic "western type" movie. The compensation offered was identical, as were 31 of the 34 numbered provisions or articles of the original contract.
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.īy 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"). 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. As will appear, we have concluded that the trial court correctly ruled in plaintiff's favor and that the judgment should be affirmed. Bevan, Jr., for Defendant and Appellant.īenjamin Neuman for Plaintiff and Respondent.ĭefendant 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. Separate dissenting opinion by Sullivan, Acting C. (Opinion by Burke, J., with McComb, Peters and Tobriner, JJ., and Kaus and Roth, JJ., concurring. TWENTIETH CENTURY-FOX FILM CORPORATION, Defendant and Appellant. SHIRLEY MACLAINE PARKER, Plaintiff and Respondent, v.