NCOPM Opposition to Motion To Dismiss

1 OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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RYAN H. FOWLER (SBN 227729) [email protected] CHRISTOPHER B. GOOD (SBN 232722) [email protected] FRANK W. FERGUSON, II (SBN211694) [email protected] FOWLER & GOOD LLP 15303 Ventura Blvd., 9th Floor Sherman Oaks, CA 91403 Telephone: (818) 302-3480 Facsimile: (818) 279-2436 Attorneys for Plaintiff National Conference of Personal Managers

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

NATIONAL CONFERENCE OF PERSONAL MANAGERS, a NEVADA non-for-profit corporation

Plaintiff,

Vs. EDMUND G. BROWN, JR. Governor of the State of California, in his official capacity; KAMALA D. HARRIS, Attorney General of California in her official capacity; California Labor Commissioner JULIE A. SU, in her official capacity and Does 1-10

Defendants.

Civil Case No. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

COMES NOW Plaintiff, and herewith provides its Opposition to Defendants’

Motion to Dismiss Plaintiff’s complaint. Plaintiff also objects to Defendants’

request of this Court to take judicial notice of the documents and information

offered by Defendants.


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INTRODUCTION

In the entertainment industry, the artist is both the Chairman of the Board of

his/her business and also the product, like being both Microsoft and Bill Gates.

Personal managers serve as the Chief Executive Officer of and for the artist,

overseeing and working with the artist’s publicist (VP of public relations), business

manager (VP of finance), transactional attorney (VP of business affairs), and talent

agents (VP’s of sales).1

It is patently absurd for a chief executive officer of an entity to be barred from

getting involved in the company’s creation of revenue. Yet due to the interpretation

and enforcement of California’s Talent Agencies Act (TAA) by the state’s Labor

Commissioner, personal managers are forced to sublimate that instinct. However, no

matter how hard the effort to separate the direction and counseling functions from

procurement, there are always actions that personal managers must perform to fulfill

their contractual duties and obligations put them in jeopardy, especially as the

occupational scheme offers no guidance on this issue and the interpretation and

enforcement of the Act by the Defendants is inconsistent.2

A personal manager properly executing their responsibilities is threatened by

this enforcement on a round-the-clock basis. Should a 1AM phone call come in

because a job opened up that begins later that morning, the manager must decide

either to negotiate and procure the opportunity or abide by the letter of the law as

enforced and ignore the reason the manager was hired: to maximize the quality and

quantity of their client’s career opportunities.

Even in normal circumstances, a personal manager looking out for the welfare

of a client is always at risk of that client later utilizing the Defendants’ enforcement

1 A single artist may have several agents; individual representatives for film, television, literary, music, publishing, voiceovers, speaking engagements and personal appearances. 2 If allowed to present argument in full, Plaintiff will cite TAA determinations where the same actions are alternately found lawful in one instance and unlawful in another.


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of the Act to the manager’s detriment. In determinations compromising a personal

manager, the Labor Commission itself has written of the need to ascertain a bright

line of what an unlicensed talent representative can and cannot do.3

This risk is infinitely greater for a talent representative – any talent

representative, including a talent agent domiciled outside of California and licensed

by the state where they work and reside.4 Before setting up an audition that could

lead to work in a California based TV series or film, the out-of-state rep either has to

convince their client to add to their financial burden by taking on a licensed in-state

agent, which could in time lead to the client’s leaving the ‘regional representative’,

or be unable to defend themselves if that job is procured and the client, now working

in California, chooses to use the Act as a method of avoiding their otherwise-owed

obligation.

Plaintiff has filed suit, having no other means of seeking a hearing and

possible redress for grievances that have and continue to result in ongoing and

future financial damages. The basis for this action is Plaintiff’s belief that the TAA,

§§ 1700 et seq. of the California Labor Code, is in direct violation of multiple

provisions of the United States Constitution.

Plaintiff brings this Opposition in the hope this Court will allow Plaintiff to

proceed and for the issues raised in Plaintiff’s complaint to be fully explored and

scrutinized. Plaintiff has named these Defendants solely based on Plaintiff’s good

faith belief that each plays an important part in the development, implementation

and enforcement of the TAA. Each Defendant possesses the influence and legal

capacity to abolish or correct wrongful and/or unconstitutional enforcement of state

statutes; and each has a responsibility to ensure no one is compromised by

3 If allowed to present argument in full, Plaintiff will cite TAA determinations where the presiding officer rued the lack of certainty as to when a violation of the Act has occurred. 4 Florida is the only other state that has a separate licensing scheme for talent agents; a few others put the occupation of talent agent under the employment agency licensing umbrella.


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enforcement in opposition to the written tenets of state law. The motion to dismiss

based on a specious claim of sovereign immunity must, therefore, be rejected.

Defendants request a dismissal based on the Plaintiff’s failure to offer basis

for their claims before the providing of basis is procedurally proper. They hope to

bar Plaintiff from conducting even cursory discovery or present the legal rationale

needed to provide this Court with an opportunity to once and for all determine

whether the TAA, subject to decades of law review and courtroom controversy, is in

fact lawful under the Constitution of the United States, or the actions of the

Defendants unconscionable.

Contrary to the claims in the motion to dismiss, the issue is not whether

Plaintiff’s Complaint proves that a constitutional violation has occurred on the

merits. That issue must wait for trial. The only acceptable rationales for a motion to

dismiss are when a Complaint fails to state a colorable legal claim that Defendants’

grant and exercise of power is not subject to constitutional review. A colorable

claim is simply one that is not “wholly insubstantial or frivolous.” Bernstein v. U.S.

Dep’t of State, 922 F. Supp. 1426, 1433 (N.D. Cal. 1996). Plaintiff has alleged more

than sufficient legal grounds and allegations of harm to satisfy the liberal standards

of pleading. Sutton v. Utah State School for Deaf & Blind, 173 F.3d 1226, 1236

(10th Cir. 1999) (“A 12(b)(6) motion should not be granted ‘unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.’”) (Emphasis added). Given the importance

of the constitutional challenges it raises, Plaintiff should not be deprived of the

opportunity to illuminate the full extent of the many harms created by the

defendants enforcement and to contest the (spurious) historical and economic claims

asserted by the government in support of such. See Reno v. ACLU, 521 U.S. 844,

849 (1997) (factual “findings provide the underpinnings of the legal issues” for

constitutional challenge). Defendants’ motion should be denied.


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SUMMARY OF ARGUMENT

Plaintiff alleges Defendants’ support and implementation of the TAA is in

violation of and in direct contradiction to multiple provisions of the U.S.

Constitution. Actions by government officials taken that are unsupportable by

statutory authority cannot be avoided through claims of immunity.

The Defendants blanket denial on the merits is based on (1) the TAA is a

remedial statute; (2) that the Labor Commissioner’s determinations can be appealed

and therefore do not affect due process; (3) that the TAA regulates conduct and

provides ample reasonable notice of the conduct it prohibits; (4) the Act reflects

long-standing public policy; (5) the TAA does not favor California residents nor

imposes unfair burden on nonresidents; (6) the Act does not require involuntary

servitude; and (7) because the Act governs conduct, not speech, the defendants

claim it does not implicate the First Amendment. The defendants are mistaken on

all counts.

The Act is unconstitutionally ambiguous as to who is to be regulated; what, if

any, activities are being regulated; and as the Act has no statutory remedies, it can

neither be characterized as remedial nor that it governs conduct.

Found violators of the Act lose their rights to the benefit of their labor,

something that can only be constitutional when someone has been duly convicted of

a crime. The Act specifically states that no violation of the Act can be considered

criminal, and therefore it bars criminal penalties, making the disgorgement of wages

violative of the 13th Amendment. By meting out a criminal penalty without first

providing the accused with the full right to discovery or a jury trial and has no

rational basis between the act and the consequence as enforced, the disgorgement of

salaried compensation also violates the 5th and 8th Amendments.

Defendants conclude and proclaim that the TAA provides reasonable notice

to the public as to what constitutes “procurement of employment.” It has been


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acknowledged by the judiciary that such a definition has never been articulated.

Defendants’ determination of reasonableness is self-serving and improper as it

should be up to the trier of fact and a jury as to whether the stated notice is in fact

reasonable and adequate.

Among the conduct determined to be “procuring employment” under the

TAA by the Labor Commissioner: conversations a personal manager had with a

casting director or producer. So the Act as applied absolutely restricts free

commercial speech.

One would expect that the Governor, Attorney General and Labor

Commissioner of the State of California would be quick to investigate a claim that

its citizenry have been robbed of their constitutional rights and not, as they have

done here, put up a barrier to an investigation. The Plaintiff and an entire industry

hope the Court will allow for a full examination.

ARGUMENT

I. LEGAL STANDARD IS MET BY PLAINTIFF’S COMPLAINT

It is important to note that the traditional function of a Rule 12(b)(6) motion,

similar to the common law general demurrer; i.e., is to test the legal sufficiency of the

claims stated in the complaint. In resolving a Rule 12(b)(6) motion, the court is to (1)

construe the complaint in the light most favorable to the plaintiff; (2) accept well-

pleaded factual allegations as true; and (3) determine whether plaintiff can prove any

set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co.,

(9th Cir. 1996) 80 F.3d 336, 337-338. Unless the answer is unequivocally “no,” the

motion must be denied. Conley v. Gibson, 355 US 41, 45-46 (1957); De La Cruz v.

Tormey, 582 F2d 45, 48 (9th Cir. 1978.) Thus, the only time a Rule 12(b)(6) dismissal is proper is where there is either a

“lack of cognizable legal theory” or “the absence of sufficient facts alleged under a

cognizable legal theory.” Balistreri v. Pacifica Police Dept, 901 F2d 696, 699 (9th


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Cir. 1990). Per Rule 8 of the Federal Rules of Civil Procedure, a complaint shall not

be dismissed for failure to state a claim so long as it puts the defendant on notice of

the gravamen of the plaintiff’s complaint and includes the “short and plain statement

of the claim showing that the pleader is entitled to relief.” Detailed factual

allegations are not required to survive a challenge to the complaint. The U.S.

Supreme Court set out the pleading requirement decades ago in a case that has been

almost universally cited ever since. In Conley v. Gibson, 355 U.S. 41 (1957), the

Court laid down what it termed “the accepted rule that a complaint should not be

dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle him to

relief.” Federal courts have applied that standard for 50 years to refuse to dismiss

complaints containing only the barest of allegations.

Defendants rely on the “plausibility standard” first articulated in Bell Atlantic

Corp. v. Twombly, 127 S. Ct. 1955 (2007). Twombly was an antitrust case alleging

that local telephone exchange carriers entered into a conspiracy both to prevent

competitive entry into local telephone and Internet service markets and to avoid

competing with each other in their respective markets. This matter is not analogous

to Twombly as it seeks to determine the constitutionality of a State statute and

whether the enforcement of the Act has been unconstitutional; not whether parties

have conspired to fix prices charged to the consumer.

Defendants also rely heavily, and wrongly, on Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) in promoting the “plausibility standard” first articulated in

Twombly. The Ashcroft case involved allegations that in the wake of the September

11, 2001 attacks, Respondent Iqbal was denied constitutional protections while in

federal custody. Ashcroft has no applicability to the instant matter.

Regardless of which standard is applied, Plaintiff has met its burden.

Plaintiff’s complaint goes to great lengths to provide a history of the TAA and the


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manner in which its application and enforcement have been at odds with the Act as

written, and this enforcement continues to wrongfully harm Plaintiff.

Defendants make the disingenuous claim the Plaintiff’s complaint is a

collection of possible scenarios and “hypothetical” situations and that there does not

exist any “actual justiciable controversy.” Plaintiff takes great exception to this false

characterization. As stated in the complaint, Plaintiff continues to be actually and

truly harmed on a daily basis with no reason to anticipate that the damages alleged

will abate absent intervention from this Court.

This matter meets the conditions necessary for it to be justiciable by a Federal

Court: (1) The parties are not seeking an advisory opinion; Plaintiff is seeking

declarative and injunctive relief; (2) There is an actual controversy between the

parties, (Muskrat v. United States, 219 U. S. 346 (1911)); and (3) The question is

neither unripe nor moot (Poe v. Ullman, 367 U. S. 497 (1961); DeFunis v.

Odegaard, 416 U. S. 312 (1974).).

Plaintiff’s complaint requests a finding that the Talent Agencies Act is

facially and as applied unconstitutional. Defendants clearly intend to defend this

enforcement, as they see the California Constitution demands (the Constitution only

requires defense of codified law, not enforcement in discord with codified law),

until a court affirms Plaintiff’s challenges Without resolution of the issues raised

here, either judicial or legislative (and the judiciary cannot, as the legislature may,

avoid a measure because it approaches the confines of the Constitution (see Ex

Parte Young, 209 U.S. 123 (1908)), the licensing questions regarding the Talent

Agencies Act will be perennially ripe. Plaintiff respectfully requests that this Court

allow this matter to proceed and to rule once and for all on the constitutionality of

the TAA.

II. THE BACKGROUND AND OPERATION OF THE TAA


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A. DEFENDANTS IGNORE THE JUDICIAL MEANING OF THE

REMOVAL OF THE TAA’S PENALTY STATUTES AND THE

HISTORICAL RATIONALE OF THE CREATION OF THE ACT

Defendants defend the current enforcement by noting that, “The Act is

remedial; its purpose is to protect artists seeking professional employment from the

abuses of talent agencies.” Styne v. Stevens, 26 Cal.4th 42, 50-51 (2001). An Act

cannot be “remedial,” if it has no remedy for violation. The Act has never had any

codified civil sanctions and the Legislature chose to “eliminate criminal sanctions

for violations of the Act” in 1982. Marathon v. Blasi, 42 Cal.4th 974, 985 (2008)

As the defendants note, the relevant statutes were first created in large part to

stop employers from masquerading as employment counselors who would often

purport to obtain “work” for their clients when in fact the opportunities these

“agents” had were often at houses of prostitution or other unsavory venues they

themselves controlled and/or owned. See 28 Pepp. L. Rev. Supra at p. 381.

Further, there is no legislative or material evidence to support the repeatedly

quoted dicta, “the clear object of the Act is to prevent improper persons from

becoming artists’ managers…” Every other state occupational scheme demands

certification of education, proof of competency, apprenticeship and/or

accomplishment. While the TAA has several statutes regulating agents’ conduct and

record keeping, the Act is silent as to qualifications, certifications or limitations of

past indiscretions that would forfeit one’s right to obtain a talent agency license.

Without such barriers to licensure, it is impossible to conclude the Act efforts

to prevent anyone, irrespective of their background or competence, from becoming a

talent agent.

Defendants also claim that their enforcement is aligned with public policy.

While the Plaintiff acknowledges that courts have accepted their enforcement as

aligned, the defendants will be unable to present, because there is none, any


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evidence in the legislative history of the Act showing a public concern of a talent

representative helping an artist find work with an independent third party.

As detailed in the complaint, the public concern was about those who held

themselves out as talent agents and their conduct. The TAA was a reaction to the

owners of burlesque halls and bordellos masquerading as talent agents to lure young

women into working for them. The Act was created to ensure that talent agents

would help artists find work with third parties, not to address the qualifications of

those who became agents or were otherwise lawfully helping artists find creative

opportunities with third parties.

The most foundational public policy Defendants ignore is how administrative

agencies are barred from creating remedies the legislature has withheld: “fixing

penalties are legislative, not judicial functions.” U.S. v. Evans, 333 U.S. 483, 486

(1948) Adjudicators of law should not “substitute [their] judgment … for that of the

elected legislators.” (Parker vs. Merlino, 646 F.2.d, 848, 855 (3rd Cir. 1981.)

The Defendants’ wrongful enforcement has destroyed careers, ruined, even

shortened lives. The Court is urged to allow a full hearing, and if the Defendants

cannot offer explanation aligned with law and precedent, that this Court should then

end this draconian nightmare.

B. DEFENDANTS IGNORE PLAINTIFF’S ARGUMENT THAT THE

OPERATION AND ENFORCEMENT OF THE TAA IS

ANOMALOUS TO ITS CODIFIED VERBIAGE

The Labor Commissioner interprets the Act as if it regulates conduct, an

interpretation impossible to reconcile with the Act’s codified verbiage. The only

way to accept the Commissioner’s conclusions is to accept that the Act includes

language that in fact does not.

The TAA, as written is similar in nature and scope to the California licensing

schemes that regulate title but not conduct. The Defendants’ enforcement, however,


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is aligned with the licensing schemes with written statutes that reserve certain

activities to licensees, which state that engaging in those activities without a license

is either a misdemeanor or felony, and that being found to have wrongfully engaged

in such activities forfeits any right to contract. These anomalies between

construction and enforcement leave the Labor Commissioner’s interpretation in

clear discord with the ejusdem generis doctrine. With no law requiring one to have a

license to procure employment for an artist, the agency has no adjudicative right to

accept petitions for such controversies; it is vigilante enforcement with the

Defendants enforcing the Act as if these statutes existed.

The enforcement conflicts with a basic canon of statutory construction:

“A statute should be construed so that effect is given to all its provisions, so

that no part will be inoperative or superfluous, void or insignificant.” Corley v. U.S.,

129 S.Ct. 1558 (2009). “The ‘surplusage rule’ is based on the principle that each

word or phrase of a statute is meaningful and useful, and thus, an interpretation that

would render a word or phrase redundant or meaningless should be rejected.” (A

Guide To Reading, Interpreting And Applying Statutes, The Writing Center at

Georgetown University Law Center citing Cases And Materials On Legislation:

Statutes And The Creation Of Public Policy (3d. ed. 2001, William N. Eskridge, Jr.,

Philip P. Frickey & Elizabeth Garrett, pg. 833.)

Statutes should not be construed “so as to avoid rendering superfluous” any

statutory language. Astoria Federal Savings & Loan Association v. Solimino, 501

U.S. 104, 112 (1991). The Labor Commissioner’s interpretation makes the notice of

regulated activity and consequence superfluous. If one can be found to act

unlawfully and be punished without stated statutes, as the TAA is interpreted, there

is no need for such statutes that give notice to activities reserved for licensees and of

the consequence to those who engage in them without license that are found the

Contractors, Locksmiths and other like schemes.


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“It is a cardinal principle of statutory construction that a statute ought, upon

the whole, to be so construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 122 S.Ct.

441 (2001). “The cardinal rule that, if possible, effect shall be given to every clause

and part of a statute.” D. Ginsberg & Sons v. Popkin, 52 S.Ct. 322 (1932).

Plaintiff and others have the right to expect the TAA will be interpreted in

accord with the cardinal principles of statutory construction, the doctrines of

ejusdem generis and surplusage, making Defendants’ application of the TAA

violative of the due process clause of the 14th Amendment of the United States

Constitution, satisfying the legal standard for an action requesting injunction.

Nulla poena sine lege is an ancient legal principle that remains accepted today

and poignantly relevant in this instance. It demands adjudicators accept that one

cannot be punished for doing something that is not prohibited by law.

When the words of a statute are clear, adjudicators “may not add to or alter

them to accomplish a purpose that does not appear on the face of a statute or from its

legislative history.” Burden v. Snowden, 2 Cal.4th 556, 562 (1995).” There is no

statute in the TAA that limits any activity to licensees. Defendants’ claim that §

1700.4 (a) which defines talent agents as those who procure employment, reserves

that action to licensees. But that statute speaks to three activities; no one reading the

Act could know that procurement is unlawful but they may lawfully “counsel or

direct artists in the development of their professional careers.” Only the arbitrary

interpretation of the Labor Commissioner creates that enforcement pattern. And as

stated in Marathon, the TAA has had no penalty provision since 1982, therefore

anything that in any way impairs one’s contractual rights, including the acceptance

of a petition for controversy, violates the due process clause of the 14th Amendment

of the Constitution.


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III. HISTORY SHOWS A LONG HISTORY OF CONTROVERSY

BETWEEN THE LABOR COMMISSIONER AND PLAINTIFF

The Talent Agencies Act gives the Labor Commissioner a variety of duties

well beyond that of merely adjudicating capacity that their motion claims. And

while one of these duties include lobbying for tougher enforcement of the Act, again

and again the defendant has acted more like a prosecutor than an adjudicator.

In 2006, the Labor Commissioner, in a clear advocate role, filed a Request for

the Depublication of the Marathon v. Blasi Court Of Appeals determination that

required the Labor Commission to consider the doctrine of severability with TAA

controversies because of their concern that the “decision will have a deleterious

effect on enforcement” and their ability to punish “will be greatly eroded.”

In the CLC’s Depublication request letter, the Defendant writes that anything

short of disgorgement “is contrary to the findings and recommendations of the

California Entertainment Commission (CEC).”5 The Marathon court later

memorialized how CEC recommended the permanent repeal of the Act’s penalty

provision and the Legislature codified the CEC’s recommendations.

Adjudicators must follow the most basic legal tenet of all: that one must be

presumed to have acted lawful until proven otherwise. As part of that impartiality,

CA Government Code 11425.30(a)(b) bars adjudicators from presiding over an

adjudicative proceeding if “the person has served an investigator, prosecutor or

advocate in the proceeding or it preadjudicative stage.” As such, the advocative

action of requesting depublication disqualifies the Labor Commissioner from

hearing controversies that the legislature requires go through her agency.

It is clear the defendants are disingenuous in claiming this court should find

applicability between their actions and the holding they cite from Grant v. Johnson,

5 If afforded the right to make a full argument, plaintiff will present examples of how the Labor Commission has advocated for TAA enforcement versus staying objective as required for five decades.


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15 F.3d 146, 147 (9th Cir.1994) – “[J]udges adjudicating cases pursuant to state

statutes may not be sued under § 1983 in a suit challenging a state law.”

As Defendants are aware, this action does make a single facial challenge, the

majority of the allegations are related to the Labor Commissioner’s actions outside

of statutory authority; whether the agency has been lassoing lawful people into

controversies, finding violations of laws that do not exist, and/or meting out criminal

penalties -- forfeiting one’s right to the benefit of their labor -- without due process.

That is in no way applicable to the issues Grant raises.

More important, Grant does not hold what the Defendant states it holds.

Grant quotes In Re Justices of Supreme Court of Puerto Rico, 695 F. 2d 17 (1st Cir.

1982), “[A]t least ordinarily, no ‘case or controversy’ exists between a judge who

adjudicates claims under a statute and a litigant who attacks the constitutionality of

the statute.” (Emphasis added.) Ordinarily is not a prohibition, but as Grant

characterized it, a “general rule.”

Per both Grant and In Re Justices, the rule exists because, “Judges sit as

arbiters without a personal or institutional stake on either side of the constitutional

controversy.... Almost invariably, they have played no role in the statute's

enactment, they have not initiated its enforcement, and they do not even have an

institutional interest in following their prior decisions (if any) concerning its

constitutionality if an authoritative contrary legal determination has subsequently

been made (for example, by the United States Supreme Court). In part for these

reasons, one seeking to enjoin the enforcement of a statute on constitutional grounds

ordinarily sues the enforcement official authorized to bring suit under the statute;

that individual's institutional obligations require him to defend the statute. One

typically does not sue the court or judges who are supposed to adjudicate the merits

of the suit that the enforcement official may bring.” Grant Supra citing In Re

Justices Supra. (Emphasis added.)


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The Defendant’s petition asking the CA. Supreme Court to depublish the

Marathon court of appeals decision is just an example of the agency’s activist role

in the statute’s enforcement; they clearly have an institutional interest in following

their prior decisions. The California Labor Commission administrates and enforces

the Talent Agencies Act,6 making it the entity ‘ordinarily’ sued. Per CA. Labor

Code 98.4, once ruling for a Artist claiming a TAA violation, the Defendant is even

authorized to represent that Claimant in the de novo proceeding. Furthermore, as

stated in their request for depublication, the Labor Commission is also in charge of

administrating and enforcing the TAA and has the institutional obligations to defend

the statute, making it the entity “ordinarily” sued under the statute. As such, the

general rule Grant characterizes does not apply to the instant matter.

Defendants’ ignoring of Plaintiff’s expressed concerns7 has left Plaintiff no

choice but to ask this court to opine on these issues. This is the only avenue that was

left; now. Defendants wrongfully claim Plaintiff cannot even turn here, leaving

those affected by TAA enforcement with no way to achieve justice.

The defendants’ reliance on the Supreme Court’s dicta in Preston v. Ferrer

552 U.S. 346 (2008) is ill founded. While that matter noted the Labor

Commissioner’s role as an impartial arbiter, it focused on whether parties who had

an arbitration clause were obligated to resolve a TAA dispute in a courtroom or

arbitration setting. That Court was not asked to consider or rule as to whether the

agency plays any other role along with serving as an arbiter and if those

responsibilities or the Commissioner’s conduct affect the right to/immunity from

suit.

6 Among other responsibilities, CA. Labor Commission issues talent agencies licenses (§1700.3(b)); all license applications are made to the Labor Commission (§1700.6); the Labor Commissioner investigates the location and character of talent agency applicants (§1700.7); collects the bond (§1700.15); and has the power to revoke or suspend a license (§1700.21). 7 If allowed to present argument in full, Plaintiff will present several examples of efforts asking the Labor Commissioner for clarification on issues that went ignored.


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IV. THE DEFENDANTS DO NOT HAVE 11th AMENDMENT IMMUNITY

In claiming Eleventh Amendment immunity, the Defendants cite authority

that when fully examined, bolsters rather than compromises Plaintiff’s arguments.

There are three main exceptions to the sovereign immunity of a state. First,

the 11th Amendment does not stop a federal court from issuing an injunction against

a state official violating federal law. Although a state official may be abiding by

state law, they have no permission to violate federal law, and a federal court can

order him to stop the action with an injunction. [Ex Parte Young, 209 U.S. 123

(1908)] The second exception focuses on payment of monetary damages. While not

relevant to this matter, it does further illuminate the fact that the immunity claimed

by Defendants is not absolute. The 11th Amendment does not automatically protect

political subdivisions of the state from liability. Moor v. County of Alameda, 411

U.S. 693 (1973).

Finally, the states surrendered a portion of the sovereign immunity that had

been preserved for them by the Constitution when the Fourteenth Amendment was

adopted. This exception allows Congress to authorize private suits against non-

consenting states to enforce the constitutional guarantees of the Fourteenth

Amendment. Again the immunity is not absolute.

In Ex Parte Young, the Supreme Court provided an important exception to the

Eleventh Amendment sovereign immunity States enjoy known as the “Stripping

Doctrine.”

The Stripping Doctrine is a legal fiction that allows injunctive relief against

what are essentially state actions. While the Eleventh Amendment immunizes States

from actions by private parties, the Stripping Doctrine argues that when a State

officer takes an unconstitutional action, she acts beyond the scope of her authority,

as no State could have authorized her to act unconstitutionally. When acting outside

such authority the officer was "stripped" of her official power and cannot invoke the


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State's immunity, although she remains subject to the consequences of her official

conduct. It is this unconstitutional action that Plaintiff has alleged is being

undertaken by the Labor Commissioner that should allow this matter to proceed.

The stripping doctrine is a legal fiction because the officer, in acting

unconstitutionally, was outside her official duties, but the citizen can now sue her

for injunctive relief in her official capacity. Unless a citizen can enjoin the action the

officer took in her official capacity, no remedy could be provided for an otherwise

unconstitutional action (as the State itself is immune from prosecution).

The Supreme Court decisions in Ex Parte Young, and Edleman v Jordan, 415

U.S. 651 (1974), hold that federal courts may grant injunctions against

unconstitutional actions taken by State Officers. Since the officers were acting

outside the scope of what a State could authorize them to do they were stripped of

their power, and their official actions are as such void. Such relief is necessary to

protect the Constitution’s Supremacy Clause; otherwise immune states could take

unconstitutional actions with impunity, invalidating the supremacy of our

Constitution.

By the same exception, before the Governor signed the TAA (or any bill) into

law, he should have ordered an investigation of the legality and constitutionality of

the law. The Attorney General is obligated to properly carry out the enforcement of

all laws in the State of California. The Attorney General is obligated to recognize

any deficiencies in state law, like a statutory scheme being enforced though devoid

of penalties, and to work to end such wrongful enforcement. The Attorney General

is either actively or passively allowing an unconstitutional enforcement on the

people of California, which directly and materially contradicts his sworn oath. The

exact involvement of all three defendants can only be ascertained with any certainty

if Plaintiff is allowed to conduct appropriate discovery to that end.

V. PLAINTIFF HAS STANDING TO BRING THIS LAWSUIT


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“‘[A]n organization has standing to sue on its own behalf if the defendant’s

illegal acts impair its ability to engage in its projects by forcing the organization to

divert resources to counteract those illegal acts.’” Common Cause/Ga. v. Billups,

554 F.3d 1340, 1350 (11th Cir. 2009) quoting N.A.A.C.P. v. Browning 522 F.3d

1153, 1165 (11th Cir. 2008).

In this matter Plaintiff is alleging that the TAA is unconstitutionally vague on

its face and that Defendants’ enforcement will continue to inflict harm unless they

are barred from enforcement that is not supported by statutory authority.

Defendants argue that there is not actual case or controversy because, “The

mere existence of a statute, which may or may not ever be applied to plaintiffs, is

not sufficient to create a 'case or controversy' within the meaning of Article III,

[citation] and is thus insufficient to satisfy the 'actual controversy' requirement of

the Declaratory Judgment Act." Western Min. Council v. Watt, 643 F.2d 618, 627

(9th Cir. 1981) (citing Jensen v. National Marine Fisheries Service (NOAA), 512

F.2d 1189, 1191 (9th Cir. 1975)).

Again, the above cite has no applicability here. The fundamental claims of

this action are that Defendants, pursuant to the TAA, mete out criminal penalties

without statutory authority, without the “mere existence of a statute.”

VI. THE TERM “PROCURE EMPLOYMENT” IS UNDEFINED AND

IMPERMISSIBLY VAGUE

All persons have a constitutional right to a reasonable opportunity to know

what is required and what is prohibited. No law should be drafted or interpreted to

encourage or facilitate arbitrary and potentially discriminatory enforcement. See

City of Chicago v. Morales 527 U.S. 41, 52, 58-59 (1999); Kolender v. Lawson 461

U.S. 352, 357 (1983); Smith v. Gougen 415 U.S. 566, 575(1972). The vague,

uncertain and inconsistent provisions and enforcement of the TAA violate Plaintiff’s

substantive due process rights because there is no clarity that will enable Plaintiff to


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reasonably ascertain what specific activities are being restricted and the lack of

clarity will continue to make application of the TAA in a uniform manner

unattainable.8 As written the TAA fosters multiple interpretations with no standards

to govern application of its provisions, in violation of law. E.g., Kugler v. Yocum 69

Cal.2d 371, 376-77 (1968); State Board of Education v. Honig 13 Cal.App.4th 720,

750 (3rd Dist. 1993).

Even if the TAA had clarity as to who and what is to be regulated, the

legislature’s decision not to include a penalty provision for unlicensed procurement

bars the legal meting out of a penalty. California bars administrative agencies from

creating “a remedy which the Legislature withheld.” Dyna-Med, Inc. v. Fair

Employment & Housing Comm. 43 Cal. 3d at 1385-1388 (1987). It is not just state

law; the Federal Government prohibits any adjudicator meting out of penalties

without notice of consequence:“Engrained in our concept of due process is the

requirement of notice. Notice is sometimes essential so that the citizen has the

chance to defend charges. Notice is required before property interests are disturbed,

before assessments are made, before penalties are assessed.” Wolff v. Fox 68 Cal.

App. 3d 280 (1977) citing Lambert v. California 355 U.S. 225, 228 (1957).

Defendants dedicate a significant portion of their motion to this issue. Yet

their motion is devoid of any authority or instance in which the term “procure

employment” has been defined and what specific actions constitute procuring has

been clearly defined for purposes of notice. Nor can they, as the term never has been

defined. (See Marathon Supra at 990: “ The Act contains no definition, and the

Labor Commissioner has struggled over time to better delineate which actions

involve general assistance to an artist’s career and which stray across the line to

illicit procurement.”)

8 If allowed to present argument in full, Plaintiff will show several examples of inconsistent, contrary interpretations of the Labor Commissioner, at times in almost simultaneously handed down determinations.


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Almost any act undertaken by Plaintiff, even as innocuous as helping choose

a headshot, could and has been linked to the ultimate goal of any artist represented

by Plaintiff to get a job. Not the Defendants, the TAA or the Courts have ever

provided a specific definition which would alert Plaintiff as to what activities or

actions specifically constitute procuring employment versus promotion, networking

and responding to all manner of inquiries fielded by Plaintiff on behalf of a client.

Whether the “notice” claimed to have been offered is reasonable should determine

by this Court and not Defendants’ opinion and claims in their motion.

VII. THE TAA DOES VIOLATE INTERSTATE COMMERCE

Defendants mislead this Court in their motion in claiming that the licensees

listed are “out of state” and therefore Plaintiff’s allegations are without merit. The

“six licensees in New York City” and the “others in Minnesota, Massachusetts,

Oregon, Tennessee and Texas” which Defendants claim are examples of out-

of-state-licensees, all have physical offices in California. To conclude that

these licensees are examples of out-of-state businesses is a conclusory

allegation, unwarranted deduction of fact and/or unreasonable inference.

Whether these are in fact out of state agencies is a triable issue of fact that

should be left for the Court to decide. In addition Defendant seeks to ignore

the significant operations in Los Angeles of the William Morris Agency

choosing to rely solely on its State of incorporation, and seems unaware that

William Morris merged and became a different agency in 2008.

Section 1700.19 of the TAA states that “Each license shall contain all of the

following: (a) The Name of the licensee; (b) A designation of the city, street, and

number of the premises in which the licensee is authorized to carry on the business

of a talent agency and (c) The number and date of issuance of the license.”

A basic principle of statutory interpretation is that the courts should “give

effect, if possible, to every clause and word of a statute, avoiding, if it may be, any


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construction which implies that the legislature was ignorant of the language it

employed.” Montclair v. Ramsdell, 107 U. S. 147, 152 (1883).

Since the California Legislature did not include a designation of the state in

which the licensee is authorized to “engage in or carry on the occupation of a talent

agency,” it is a reasonable inference that the California Legislature only intended for

licenses to be issued to “carry on the business of a talent agency” in the State of

California. Again, this issue should be subjected to the discovery process.

Sec. 1700.44 (d) of TAA clearly establishes a discriminatory two-tier system

for talent representation in violation of the dormant Commerce Clause. Since TAA

precludes out-of-state license applicants and requires non-licensed out-of-state

entities to engage in the negotiation of an employment contract only with the

involvement and consent of a licensed California talent agency, the Act materially

burdens and discriminates against interstate commerce, impedes the flow of trade

across state lines and deprive out-of-state competitors of access to local markets.

The TAA, to Plaintiff’s direct injury and detriment, discriminates in favor of

California economic activity and against out-of-state participants in the

entertainment industry. This protectionist measure has insulated California

economic interests in talent representation from interstate competition.

The Supreme Court has applied the dormant Commerce Clause to “prohibit []

economic protectionism—that is, regulatory measures designed to benefit in-state

economic interests by burdening out-of-state competitors.” New Energy Co. v.

Limbach 486 U.S. 269, 273 (1988). “Thus, where simple economic protectionism is

effected by state legislation, a virtually per se rule of invalidity has been erected.

The TAA also grossly favors California residents over the rest of the country;

effectively barring personal managers from bringing their clients to thousands of

talent, literary and booking agents that do not have California operations; and in

doing so, for the reasons alleged, interferes with interstate commerce.


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VIII. THE TAA VIOLATES THE CONTRACTS CLAUSE

“Legislation adjusting the rights and responsibilities of contracting parties

must be upon reasonable conditions and of a character appropriate to the public

purpose justifying its adoption.” United States Trust Co. v New Jersey, 431 U.S. 1,

22, 97 S.Ct. 1505 (1977). Justice Holmes succinctly put the matter of the

Government’s use of this police power in his opinion for the Court in Hudson Water

Co. v. McCarter, 209 U.S. 349, 357 (1908) stating "One whose rights, such as they

are, are subject to state restriction, cannot remove them from the power of the State

by making a contract about them. The contract will carry with it the infirmity of the

subject-matter."

If allowed to stand as presently written, the TAA shall continue to restrict

Plaintiff’s right to contract with any degree of certainty as the manner in which it is

applied is vague as well as the conditions and restrictions contained in the TAA.

IX. THE TAA VIOLATES THE THIRTEENTH AMENDMENT

Whether accidental or as an intentional attempt to confuse the court, in trying

to moot the Plaintiff’s claim, the Defendants cite a precedent which has nothing to

do with the issue being raised.

The 13th Amendment states in part: “Neither slavery nor involuntary

servitude, except as a punishment for crime whereof the party shall have been

duly convicted, shall exist within the United States, or any place subject to their

jurisdiction.” (Emphasis added.)

Therefore, the only way voiding one’s right to the benefit of their labor can

be constitutionally compliant is when there is: (1) a statute stating that such labor

was criminal; and (2) the person losing their right to the benefit of their labor has

been found duly convicted of that crime. The Defendants’ enforcement fails.

The TAA expressly states that per § 1700.44(b), the “failure of any person

to obtain a license from the Labor Commissioner pursuant to this chapter shall not


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be considered a criminal act under any law of this state.” As no one can be duly

convicted of a crime for violating a TAA statute, voiding the contractual rights of

those the Labor Commissioner finds to be ‘unlicensed procurers’ is a clear violation

of the 13th Amendment.

Though not claiming none exists, the Plaintiff could not find precedents

affirming or rejecting the instant issue. One would not expect to see such a material,

institutional misreading of a statutory scheme by the agency empowered to

administrate and enforce it. The Labor Commission ignores the prohibition against

creating remedies and instead creates a criminal penalty for an infraction that does

not exist, and even if it did, could not be characterized as criminal. It would not be

surprising if such actions are unprecedented.

Relatedly, the meting out of a criminal penalty without the right to a jury trial

or full discovery – the Labor Commission refuses parties the right to conduct

depositions – is also therefore a violation of the due process clause of the Fifth

Amendment; and the meting out a criminal penalty for a civil infraction is cruel and

unusual and therefore in violation of the Eighth Amendment. Plaintiff should be

given the full opportunity to detail these arguments and thus the Defendants’ motion

should be rejected.

X. THE TAA IMPEDES PLAINTIFF’S FIRST AMENDMENT RIGHTS

Defendants claim that the activity of “procuring employment” is what is

regulated under the TAA and therefore is not speech. As stated repeatedly, “procure

employment” is not defined in the TAA and therefore Defendants via their present

motion cannot sua sponte determine whether speech is exempted from the “activity

of procuring employment.” It is inevitable, as has often been the case in the past,

that Plaintiff will in the course of carrying out its duties and obligations to a client

verbally make statements which will be cited as violating the TAA’s prohibition on

procuring employment by an unlicensed party by a client that seeks to avoid paying


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his manager pursuant to their agreement. Worse, the present scheme provides the

breaching party with assistance and support of Defendants to Plaintiff’s continuing

detriment and financial loss.

A state must justify restrictions on truthful, non-misleading commercial

speech by demonstrating that its actions “directly advance” a substantial state

interest and are no more extensive than necessary to serve that interest. Central

Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U. S.

557 (1980). No such substantial interest is being directly advanced by the TAA.

The TAA and Defendants’ enforcement of the TAA “imposes more than an

incidental burden on protected expression” and “imposes a burden based on the

content of speech and the identity of the speaker,” which the U. S. Supreme Court

has declared to be inconsistent with the commercial free speech protections

guaranteed by the First Amendment. Sorrell v. IMS Health 603 F. 3d 263 (2011).

XI. PLAINTIFF SHOULD BE ALLOWED TO CONDUCT

DISCOVERY AND BE AFFORDED AN EVIDENTIARY HEARING

A motion to dismiss is proper if and only if it is beyond doubt that a legal

claim cannot be stated. Sutton Supra at 1236. In this case, plaintiffs have pointed to

substantial authorities that support the legal sufficiency of their claims. Their

allegations far surpass the low threshold of establishing a “non-frivolous”

constitutional claim.

Given the importance of the constitutional issues raised to both artists and the

public, Plaintiff should be afforded the opportunity to conduct discovery and to

develop a complete factual record. Discovery and an evidentiary hearing will allow

the plaintiffs to illuminate for this Court: (1) the full extent of the harms suffered by

Plaintiff because of the TAA; (2) historical data related to the TAA; (3) the number

of Plaintiff’s members that have been affected by the TAA; and (4) how the

financial, creative process and artistic endeavors suffer because of the TAA.


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CONCLUSION

For the foregoing reasons Defendants’ motion should be denied or in the

alternative Plaintiff given the opportunity to amend its complaint.

February 1, 2013 FOWLER & GOOD LLP

By: CHRISTOPHER B. GOOD F. WILLIAM FERGUSON, II RYAN H. FOWLER

Attorneys for Plaintiff


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PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 15303 Ventura Blvd., 9th Floor, Sherman Oaks, CA 91403. On February 1, 2013, I served the within documents:

[X] by transmitting the document(s) listed above via e-mail on this date before 5:00 p.m. and receiving confirmation that the document(s) were successfully transmitted. [ ]by placing [ ] the original [ ] a true and correct copy of the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sherman Oaks, CA, addressed as set forth below. [X]by causing overnight delivery by______________ of the document(s) listed above to the person(s) at the address(es) set forth below. [ ] by causing personal delivery by_______________ of the document(s) listed above to the person(s) at the address(es) set forth below. [ ] by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below.

I am readily familiar with the firm’s practice for the collection and processing of correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit.

[X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on February 1, 2013, at Sherman Oaks, California.

Christopher Good

NCOPM Opposition to Motion To Dismiss

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Transcript of NCOPM Opposition to Motion To Dismiss