Can Specific Performance of a San Diego Personal Service Contract be Ordered?

As a general rule, San Diego personal service contracts are enforceable under California law. An example might be a personal service contract for in-home nursing care for a certain number of months or years. If the nurse — in our example — breaches the agreement by failing to provide the services, then the nurse can be sued for breach of contract. In such a lawsuit, the nurse would be subject to all the available breach of contract damages and those set forth in the agreement including:

• General or consequential damages — examples: cost of replacement, lost profits, cost of repair, loss of use, and more
• Specific damages — damages specifically bargained for
• Liquidated damages — as set forth in the contract
• Nominal damages — if no other damages can be proven
• Rescission/cancellation of the contract — might allow for restitution of pre-paid monies for example

How about the remedy of specific performance? Specific performance is an order from the courts commanding the person to continue performing — such as the nursing services. Strangely enough, there is a statutory provision (California Labor Code 2855(a)) which seems to say “yes” to the availability of this remedy as long as the person is not ordered to provide the services for longer than seven years. The statute states:

“… a contract to render personal service … may not be enforced against the employee beyond seven years from the commencement of service under it. Any contract, otherwise valid, to perform or render service of a special, unique, unusual, extraordinary, or intellectual character, which gives it peculiar value and the loss of which cannot be reasonably or adequately compensated in damages in an action at law, may nevertheless be enforced against the person contracting to render the service, for a term not to exceed seven years from the commencement of service under it.”

The language is interesting given the prominence here in California of the intellectual and performing arts. The Act specifically references employees contracted to “render personal service in the production of phonorecords …” The Act, passed in 1937, clearly intends to allow enforcement of contracts covering singers and songwriters. The Act was amended as recently as 2007, so there is evidence that the General Assembly still looks with favor on the enforceability of personal service contracts. The courts have enforced such contracts against artists and songwriters. See, for example, De Haviland v. Warner Bros. Pictures, 67 Cal. App. 2d 225 (Cal. App. 2nd Dist. 1944) holding the such a provision enforceable against actress Olivia De Haviland, but not for longer than seven years.

Section 2855 is an exception to the general rule that a contract to render personal services cannot be specifically enforced. The general rule is set out in California Civil Code, §3390(a) and (b), which forbids specific enforcement of “an obligation to render personal service” and “an obligation to employ another in personal service.” The general rule is a practical one since forcing a person to perform personal services like nursing care does not generally lead to good service. In addition, the typical personal service contract tends to be focused on one or a few persons receiving the service. By contrast, by their nature, artistic services are more amenable to being compelled since the artistic expression is aimed at a large audience and only the ownership of the expression is really at issue.

Interestingly enough, section 2855(a) seems to be an exception to the general rule in California forbidding restraints of trade. In general, an employer may not make a contract that interferes with an employee’s ability to exercise his or her trade if the employee quits or is fired. Section 2855 applies a different rule to those providing personal services.

Contact San Diego Corporate Law

If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard provides legal services related to business law, private securities offerings/sales, the sale/purchase of a business, and for mergers and acquisitions. Mr. Leonard can be reached at (858) 483-9200 or via email.

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