Analysis of Reply Brief

7/29/2019 Analysis of Reply Brief

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ANALYSIS OF THE DEFENDANTS REPLY BRIEF

SUPPORTING THEIR MOTION FOR DISMISSAL

The overriding theme of the Defendants defending the current

enforcement of the Talent Agencies Act is that it has stood almost without

change for decades, and precedent after precedent reaffirms its validity.

This is in direct contrast to the Plaintiffs overriding theme; that to

discern whether the Act has been enforced aligned or misaligned to law, the

Court must look at whether the precedents should be ignored because they

follow the CA Labor Commissioners wrongful interpretation of the written

statutes.

The Defendants cite four reasons why the suit should be dismissed:

(1) Violations of the Talent Agency Act (Act or TAA) can have civil

consequences even if the statute lacks criminal or civil penalties.

Just the idea of this is contrary to the fundamental need for notice:

in order for a consequence to be implied from a statute there must

be greater justification for its inclusion than a consistency or compatibility

with the act from which it is implied. A necessary implication within the

meaning of the law is one that is so strong in its probability that the contrary

thereof cannot reasonably be supposed. Grubb & Ellis Co. v. Bello, 19 Cal.

App. 4th 231 (1993).

"Elementary notions of fairness enshrined in this Court's

constitutional jurisprudence dictate that a person receive fair notice not onlyof the conduct that will subject him to punishment but also of the severity of

the penalty that a State may impose." (BMW of America v. Gore(1995) 517

U.S. 559, 574.)


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"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(1977)

68 Cal. App. 3d 280;Lambert v. CA. (1957) 355. U.S. 225, 228.)

The Defendants cite 2001 and 2008 precedents to argue that despite

the Plaintiffs protestations, the TAA is remedial. But they conveniently

omit that both those cases are founded uponBuchwald v. Katz,8 Cal.3d 493

(1972), a case decided when the Act had a penalty provision. That provision

was removed temporarily in 1982 and permanently through codification in

1986, and theres been no penalty provision in the Act ever since. (See

Marathon v. Blasi 42 Cal. 4th974, 985(2008); See Complaint, pg. 5, ln. 1

pg. 10, ln. 1 for legislative history.)

Without a remedy, the TAA cannot be remedial: California prohibits

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).

Similarly, as the Plaintiff predicted in their Answer brief, the

Defendants offer no legislative or material evidence to support the quoted

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

becoming artists managers Every other state occupational scheme

demands certification of education, apprenticeship and/or accomplishment.

While the TAA has several statutes regulating an agents conduct,

relationship with their client and record keeping, the TAA as written is

completely silent as to qualifications, certifications or limitations of past

indiscretions that would forfeit ones right to obtain a talent agency license.

Likewise, past requiring two affidavits from two people stating they know


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contract can remain in affect while the illegal ones would be voided. It is the

very embodiment of unconstitutionally vague: that a reasonable person

wanting to know that the penalty of a statutory scheme in the Labor Code

would somehow know, without direction, to look to the Civil Code for the

notice of penalty. It is such an obscure reach, that it had never been

mentioned by any court or by the Labor Commission in any of the previous

four decades of rulings, and only in issue because of a personal manager in

Marathonquestioning why a finding of a single violation in a long term

relationship should be enough to void the benefit of years of labor. It is

patently absurd to accept this labyrinth to meet the constitutional bar of

clarity of notice. Or to believe that somehow the Legislature was inferring

the use of Civil Code 1599 as a replacement remedy when they repealed

the criminal penalty in 1982. California law bars attorneys from forwarding

defenses they know are subterfuge and without merit (except when they are

representing someone accused of a criminal act); it is heinous that the

arguments of an attorney in the Attorney Generals office is making such

claims to defend indefensible enforcements.

Another foundational part of the Plaintiffs argument is that the TAA

should be enforced similarly to the other occupational schemes that do not

specifically prohibit a non-licensee from engaging in a defined activity of a

regulated profession. The Defendants make no attempt to skewer this

inarguable argument, leaving the Court to somehow on its own explain why

one can lawfully do accounting work or maintain outdoor areas without

violating the Accountancy or Landscape Architects Acts, but with mirroring

language one cannot lawfully procure employment for an artist. Relatedly,

the Defendants do not effort to explain why non-licensees can lawfully

engage in two of the three defined activities of a talent agent, but not the


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third, despite no stated distinction anywhere in the statutory scheme.

Perhaps most importantly, the Defendants do not explain how the

forfeiture of ones labor is a constitutional and not criminal penalty. Per the

13th

Amendment, the only constitutional forfeiture of labor is when has been

lawfully convicted of a criminal act, and the TAA specifically states (

1700.44(b)) that no violation can be considered criminal. Yes, BPC 7031

states that an unlicensed contractor has no right to contract and therefore can

lose the right to be paid for their labor in a civil dispute; but several

provisions in BPC 7028 clearly state that engaging in contractors activities

without a license is a misdemeanor a criminal offense.

Finally, the Defendants argue that the Plaintiff inaccurately

characterizes TAA determinations as arbitrary and often contrary, and that

the Plaintiffs claims must be rejected because no citation or elaboration was

offered.

Again, this is disingenuous. The Defendants know that at this stage, a

court is to accept such claims as true, and rule only whether if true there

would be viable rationale for a ruling in the Plaintiffs favor. But for

edification, consider these contrary findings

In Gittleman v Karolat, TAC 24-02, the Labor Commissioner ruled

that, A talent agency license is not required for the procurement of a guest

appearance on a talk show provided the appearance does not involve the

rendition of artistic services. (Id., pg. 27.)

But in Blasi v. Marathon Entertainment, TAC 15-03, a determination

made the same month, MEI was found to have violated the Act by helping

Rosa Blasi procure an appearance on Politically Incorrect, where she

rendered no artistic services. (Id., pg. 21.)


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In Wesley Snipes v. Delores Robinson (TAC 36-96), the

determination states that, The requirements of the [Safe Harbor] statute

cannot be construed to call for a game of Mother May I? every time an

artist manager takes some action during a long term relationship To find

otherwise would be to ignore the realities of the day to day life in the

[entertainment] industry.

But in Tool v. Lamkin Management (TAC-35-01), the Labor

Commission determined that the personal manager had violated the

unlicensed procurement statute and not acted inside the Safe Harbor because

the manager had called the William Morris Agency about an opportunity,

the agency had not called the management firm.

In Parker Posey v. Lila Richardson (TAC 7-02), the Labor

Commission disgorged the contractual rights of an attorney for procuring

without a talent agency license.

But in Jewel v. Inga Vainshtein (TAC 21-00), the Labor Commission

disgorged the contractual rights of the personal manager but left the

contractual rights of the attorney untouched because the artist chose only to

initiate a controversy to avoid paying the personal manager.

In Macy Gray v. Lori Leve Management (TAC 18-00), the managers

right to contract was affirmed; the Labor Commission finding that the

showcase Leve, put together for Gray was to procure a recording contract,

and indeed Epic Records did sign Gray as a direct result of the showcase

and Gray did not commission the engagement.

But in Park v. Deftones (TAC 9-97), the manager was found to have

violated the Act for organizing 84 similar showcases for his clients until on

the 84theffort, the band was signed to Maverick Records. There is nowhere

written in the Act, If at first you dont succeed, dont try again, but this


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differentiation penalizes the representative for his persistence instead of

honoring his belief that his clients, who went on to have significant success,

had that potential and he was hell-bent on showcasing until he could find

other believers.

The Defendants do not offer reference to a bright line of what only

licensees can do, nor do they comment on the cites where even the Labor

Commissioner rues the lack of such a demarcation between lawful and

unlawful. They say that procure employment is commonly understood, but

they do not state whether creating marketing materials that lead to

procurement is lawful or unlawful; what can and cannot be said to a casting

director, network executive or producer about a client without being in

violation, or whether accepting an offer is lawful, and if so, can any terms of

that offer be changed without it becoming unlawful. And they make no

claim that helping a client get a party with a third party is in any way a

public concern.

In claiming that Interstate Commerce is not interfered with, the

Defendants ignore Plaintiffs claim that the Act creates an unconstitutional

barrier for personal managers looking to best represent their clients. In Baker

v. Bash, TAC 12-96, a contract was voided because the manager negotiated

an endorsement deal for Anita Baker for a Paris-based concern, and because

the singers booking agent was Associated Booking Corporation (ABC).

ABC was the agency for virtually very major performing artist of color since

Billie Holliday and Louis Armstrong (Armstrong was one of the founding

partners (http://www.associatedbooking.com/ab.html)), but it was based in

New York City. Any manager looking out for his clients best interests

would put Ms. Baker with Associated.


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In Robi v. Wolf, TAC 29-00, the personal manager sought out

regional agents to help The Platters get engagements at county and state fairs

across the country because there were no licensed agents in California doing

such work. To stay inside TAA enforcement, Wolf would have had to share

compensation with a licensed agent in California doing nothing but offering

cover from future TAA controversies. That is in inarguable unconstitutional

barrier, and the Defendants make no effort to rebut it.

===

There is never a guarantee of how a judge or jury will rule. However,

the bar for the Defendants motion is high: A 12(b)(6) motion should not be

granted unless it appears beyond doubtthat the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.Sutton v.

Utah StateSchool for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)

With all of the above, it seems highly unlikely that the Defendants

motion will be successful.

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