Defendants' Reply Brief Supporting Motion To Dismiss

7/29/2019 Defendants' Reply Brief Supporting Motion To Dismiss

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DEFENDANTSREPLY IN SUPPORT OF MOTIONTO DISMISS

1 CASENO.12-09620DDP(RZX)

KAMALA D.HARRISAttorney General of CaliforniaDOUGLAS J.WOODSSenior Assistant Attorney GeneralMICHAEL GLENN WITMERDeputy Attorney GeneralState Bar No. 110717

300 South Spring Street, Suite 1702Los Angeles, CA 90013Telephone: (213) 897-4902Fax: (213) 897-1071E-mail: [email protected]

Attorneys for Edmund G. Brown Jr., GovernorKamala D. Harris, California Attorney Generaland Julie Su, California Labor Commissioner

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

NATIONAL CONFERENCE OFPERSONAL MANAGERS, INC., a

NEVADA not-for-profit corporation,

Plaintiff,

v.

EDMUND G. BROWN JR., Governorof the State of California, in his officialcapacity; KAMALA D. HARRIS,Attorney General of California, in herofficial capacity; JULIE A. SU,California Labor Commissioner, in herofficial capacity,

Defendants.

12-09620 DDP(RZx)

DEFENDANTSREPLY IN SUPPORT OF

MOTION TO DISMISS COMPLAINT

Date: February 25, 2013Time: 10:00 a.m.Courtroom: 3

Judge: The Hon. Dean D. PregersonTrial Date: None setAction Filed: 11/9/2012

Case 2:12-cv-09620-DDP-RZ Document 15 Filed 02/11/13 Page 1 of 18 Page ID #:175


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TABLE OF CONTENTS

Page

DEFENDANTSREPLY IN SUPPORT OF MOTIONTO DISMISS i CASENO.12-09620DDP(RZX)

I. The Absence of Criminal or Civil Penalties in the TalentAgency Act Does Not Mean Violations Have No Remedy ................. 3

II. The Opposition Does Not Overcome Sovereign Immunity ofThe Governor or Attorney General ....................................................... 6

III. The Opposition Does Not Establish the Existence of a Case orControversy Between the Commissioner and Plaintiff ....................... 7

IV. Plaintiff Lacks Article III Standing Because It and Its MembersHave Suffered No Harm Caused by State Action................................. 8

V. Plaintiff Has Not Alleged or Shown Any Instance of Arbitrary,Inconsistent or Discriminatory Application .......................................... 9

VI. All Of Plaintiffs Remaining Arguments Lack Merit ......................... 11

A. The TAA Does Not Burden Interstate Commerce ................... 11

B. The Act Cannot Violate the Contracts Clause .......................... 12

C. The Act Cannot Violate the Thirteenth Amendment As ItDoes Not Compel Anyone to Work Against Their WillFor Another ............................................................................... 12

D. The Act Cannot Violate the First Amendment ......................... 12

E. Plaintiff Should Be Barred From Conducting DiscoveryUnless and Until It Can State a Viable Theory ........................ 13

Conclusion ............................................................................................................... 13



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TABLE OF AUTHORITIES

Page

DEFENDANTSREPLY IN SUPPORT OF MOTIONTO DISMISS ii CASENO.12-09620DDP(RZX)

CASES

Astoria Federal Savings & Loan Association v. Solimino501 U.S. 104 (1991) .................................................................................................................. 4

City of Chicago v. Morales527 U.S. 41 (1999) .............................................................................................................. 9, 10

Common Cause/Ga. v. Billups554 F.3d 1340 (11th Cir. 2009) ................................................................................................. 8

Ex parte Young209 U.S. 123 (1908) .................................................................................................................. 6

Hewitt v. Joyner940 F.2d 1561 (9th Cir.1991) .................................................................................................... 4

I.N.S. v. St. Cyr533 U.S. 289 (2001) ................................................................................................................ 11

Kolender v. Lawson, 461 U.S. 352 (1983) .............................................................................................................. 10

Lawrence Livermore Nat. Laboratory131 F.3d 836 (9th Cir. 1997) ..................................................................................................... 6

Los Angeles County Bar Assn. v. Eu979 F.2d 697 (9th Cir. 1992) ..................................................................................................... 6

Lujan v.Defenders of Wildlife

504 U.S. 555 (1992) .................................................................................................................. 9

Marathon Entertainment, Inc. v. Blasi42 Cal. 4th 974 (2008) .................................................................................................. 3, 4, 6, 7

N.A.A.C.P. v. Browning522 F.3d 1153 (11th Cir. 2008) ................................................................................................. 8

Siegel v. Bradstreet2008 WL 4195949 .................................................................................................................... 7

Siegel v. BradstreetNo. CV 08-2480 CAS ............................................................................................................... 7

Smith v. Gougen

415 U.S. 566 (1972) ................................................................................................................ 10



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TABLE OF AUTHORITIES

Page

DEFENDANTSREPLY IN SUPPORT OF MOTIONTO DISMISS iii CASENO.12-09620DDP(RZX)

Styne v. Stevens26 Cal. 4th 42 (2001) .......................................................................................................... 3, 11

Village of Hoffman Estates v. Flipside, Hoffman Estates455 U.S. 489 (1982) ................................................................................................................ 10

Wachs v. Curry13 Cal. App. 4th 616 (1993) ................................................................................................... 11

STATUTES

Civil Code

1599 .................................................................................................................................... 3, 4

Labor Code 1700 . ...................................................................................................................................... 7 1700.4 (a) ............................................................................................................................... 4

1700.5 ..................................................................................................................................... 4

1700.10 ................................................................................................................................... 5

1700.15 ................................................................................................................................... 5 1700.16 ................................................................................................................................... 5

1700.23 ................................................................................................................................... 5

1700.24 ................................................................................................................................... 5 1700.25 ................................................................................................................................... 5

1700.26, 1700.27 .................................................................................................................. 5

1700.32 ................................................................................................................................... 5 1700.33 ................................................................................................................................... 5

1700.34 ................................................................................................................................... 5

1700.35 ................................................................................................................................... 5 1700.38 ................................................................................................................................... 5

1700.39 ................................................................................................................................... 5

1700.40 ................................................................................................................................... 5

1700.41 ................................................................................................................................... 5 1700.44 ................................................................................................................................... 5

1700.44 (a) ............................................................................................................................. 8

CONSTITUTIONAL PROVISIONS

First Amendment ....................................................................................................................... 2, 12

Fifth Amendment .......................................................................................................................... 12

Eighth Amendment ................................................................................................................... 2, 12Eleventh Amendment ...................................................................................................................... 6

Thirteenth Amendment ............................................................................................................. 2, 12



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KAMALA D.HARRISAttorney General of CaliforniaDOUGLAS J.WOODSSenior Assistant Attorney GeneralMICHAEL GLENN WITMERDeputy Attorney GeneralState Bar No. 110717

300 South Spring Street, Suite 1702Los Angeles, CA 90013Telephone: (213) 897-4902Fax: (213) 897-1071E-mail: [email protected]

Attorneys for Edmund G. Brown Jr., GovernorKamala D. Harris, California Attorney Generaland Julie Su, California Labor Commissioner

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

NATIONAL CONFERENCE OFPERSONAL MANAGERS, INC., a

NEVADA not-for-profit corporation,

Plaintiff,

v.

EDMUND G. BROWN JR., Governorof the State of California, in his officialcapacity; KAMALA D. HARRIS,Attorney General of California, in herofficial capacity; JULIE A. SU,California Labor Commissioner, in herofficial capacity,

Defendants.

12-09620 DDP(RZx)

DEFENDANTSREPLY IN SUPPORT OFMOTION TO DISMISS COMPLAINT

Date: February 25, 2013Time: 10:00 a.m.Courtroom: 3

Judge: The Hon. Dean D. PregersonTrial Date: None setAction Filed: 11/9/2012

Defendants Edmund G. Brown Jr., Governor, Kamala D. Harris, California

Attorney General, and Julie Su, California Labor Commissioner, submit this Reply

in support of their motion to dismiss.

The opposition is unavailing and the motion should be granted for at least four

reasons:



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

consequenceseven if the statute lacks criminal or civil penalties. Many of the

oppositions arguments collapse on the flawed idea that the two are equivalent.

2. The opposition fails to show how the Governor or Attorney General

is directly involved in the enforcementof the challenged statute, so it does not

overcome their sovereign immunity.

3. The opposition ignores the fact that the TAA is enforced by private

parties, in private disputes, where the Commissioner acts solely as a neutral

adjudicator. Hence, there is no live controversy between plaintiff and the

Commissioner.

4.

The complaints various constitutional claims all contain deep

conceptual flaws:

a. The due process claim rests on the assumption that the TAA is

enforced by criminal penalties.

b. The interstate commerce theory rests on the false allegation that

licensure requires California residency.

c.

The Eighth Amendment impairment of contracts theory ignoresthe fact that the amendment only protects contracts that existed

when the challenged statute was enacted.

d. The Thirteenth Amendment theory asserts nonsensically that a

contract remedy can somehow constitute involuntary servitude.

e. The First Amendment theory falsely assumes that the statute

regulates expression, burdens free speech and involves state

action.

These fundamental conceptual flaws cannot possibly be overcome with

discovery or cured by amendment. The motion should be sustained without leave

to amend.



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I. THE ABSENCE OF CRIMINAL OR CIVIL PENALTIES IN THE TALENT

AGENCY ACT DOES NOT MEAN VIOLATIONS HAVE NO REMEDY

Plaintiffs case hangs from the erroneous notion that because the TAA

contains no penalties, a violation of it can have no consequences. Ergo, plaintiff

tries to refute the reality that the TAA is remedial, ignoring state case law to the

contrary. Plaintiff argues, an act cannot be remedial if it has no remedy for a

violation. Opp. 9:7-8. But this simply ignores the long-held judicial view that

[t]he 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);see alsoMarathon Entertainment, Inc. v. Blasi, 42 Cal. 4th 974, 984

(2008). Just because the Legislature chose to eliminate criminalsanctions for

violation of the Act does not mean it intended to nullify the Act.

The California Supreme Court has recognized that in enacting talent agency

laws, the Legislature was concerned that those representing aspiring artists might

take advantage of them. . . . Exploitation of artists by representatives has remained

the Acts central concern through subsequent incarnations to the present day.

Marathon, 42 Cal. 4th at 984 (citing Styne, 26 Cal. 4th at 50). With this concern inmind, the California Supreme Court inMarathonconsidered,

What is the artistsremedy for a violation of the Act? In particular, whena manager has engaged in unlawful procurement, is the manager always

barred from any recovery of outstanding fees from the artist[,] or may thecourtorLabor Commissionerapply the doctrine of severability(Civ.Code, 1599) to allow partial recovery of fees owed for legally

provided services?

Marathon, 42 Cal. 4th at 990 (emphasis added). The Court noted that while the Act

contains no remedy for illegal procurement, Civil Code section 1599 does. Id. at

991. Where a contract has several distinct objects, of which one at least is lawful,

and one at least is unlawful, in whole or in part, the contract is void as to the latter

and valid as to the rest. Cal. Civ. Code 1599 (emphasis added). Applying



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ordinary rules of statutory interpretation, the Supreme Court inMarathonread

section 1599 and the Act so as to, to the extent possible, give effect to both. Id.

It concluded that the two are not in conflict; indeed the Civil Code provides a

remedy where the Act is silent:

The Act defines conduct, and hence contractual arrangements, that areillegal: An unlicensed talent agency may not contract with talent to

provide procurement services. (Lab.Code, 1700.4, subd. (a), 1700.5.)The Act provides no remedy for its violation, but neither does it repudiatethe generally applicable and long-standing rule of severability. Hence,that rule applies absent other persuasive evidence that the Legislatureintended to reject the rule in disputes under the Act.

Id. In short, the California Supreme Court interpreted the TAA to provide the artist

with a remedy, whether before a court or the Labor Commissioner. That remedy is

to deny the unlicensed agent recovery of fees to the extent they are for employment

procurement services. The California Supreme Courts interpretation of the TAA

governs here. When interpreting state law, federal courts are bound to follow

the decisions of the states highest court. Hewitt v. Joyner, 940 F.2d 1561, 1565

(9th Cir.1991). AndMarathoncompletely refutes the argument that the

Commissioner has created a remedy that the Legislature withheld. Opp. 10:11-15Plaintiff argues that [s]tatutes should not be construed so as to avoid

rendering superfluous any statutory language. Opp. 11:20-22 (citingAstoria

Federal Savings & Loan Association v. Solimino, 501 U.S. 104, 112 (1991)). But

plaintiff then turns this principle on its head, to essentially argue that the TAA

should be nullified in its entirety. Opp. 11:20-27.

Plaintiff also makes the argument that the Commissioner interprets the Act as

if it regulates conduct, an interpretation impossible to reconcile with the Acts

codified verbiage. The only way to accept the Commissioners conclusions is to

accept that the Act includes language that in fact does not [sic]. Opp. 10:22-25.

This argument ignores most of the Acts provisions, for in truth the Act regulates



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almost nothing but conduct.1 Its requirements and prohibitions address a far wider

range of abuses than merely the procurement of work for artists at houses of

prostitution or other unsavory venues they themselves controlled and/or owned.

Opp. 9:12-15. Paradoxically, plaintiff complains about the nonexistence of barriers

to licensure2as though that were something improper. Opp. 9:20-25. To the

contrary, this actually demonstrates that the Act does not curb competition or favor

1The Act requires:

The talent agents license must be renewed annually. 1700.10.

The agent must post a surety bond of $50,000. 1700.15. This bond secures

the licensees obligation to comply with the Act, pay all sums due on funds

received for the artist, and pay any damages resulting from misstatements orunlawful acts or omissions. 1700.16.

The agent must submit to the Commissioner the form of contract it will usewith artists and get her approval of it. 1700.23.

The agent must file and post its fee schedule. 1700.24.

The agent must comply with detailed requirements for handling, booking anddisbursing trust funds ( 1700.25), and maintain and produce records forinspection. 1700.26, 1700.27.

The agent must reimburse the artists travel costs if he sends the artist to an

out-of-town job that does not materialize. 1700.41. All controversies arising under the TAA must be referred to the

Commissioner, who must hear and determine the same, subject to a de novoappeal to the superior court. 1700.44.

The Act prohibits:

Publishing any false or misleading information. 1700.32.

Sending an artist to any unsafe place. 1700.33.

Sending a minor anywhere liquor is sold and consumed. 1700.34.

Employing persons of bad character. 1700.35.

Securing employment for an artist where a strike, lockout or other labor

trouble exists, without notifying the artist. 1700.38.

Splitting fees with an employer. 1700.39.

Collecting registration or referral fees, or securing employment with any entity

in which the agent has any financial interest. 1700.40.2Contrary to the opposition, California residency is notrequired.



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one group over another; instead it facilitates good business conduct by talent agents

by bringing them all under the regulatory umbrella as licensees.

The remedy for acting as an agent without a license is not something the Labor

Commissioner created; it is entirely statutory. As stated by Californias highest

court inMarathon,the remedy is a bar on enforcement of an illegal contract. This

is not a penalty imposed by the Commissioner; it is a remedy enforced by artists.

II.

THE OPPOSITION DOES NOT OVERCOME SOVEREIGN IMMUNITY OF

THE GOVERNOR OR ATTORNEY GENERAL

The opposition fails to show any Governor or Attorney General involvement

in enforcement of the challenged statute. Plaintiff concedes that these defendants

have been named solely based on Plaintiffs good faith belief that each plays an

important part in the development, implementation and enforcement of the TAA.

Opp. 3:20-22. Even accepting the dubious assertions that defendants possess[] the

influence and legal capacity to abolish or correct wrongful and/or unconstitutional

enforcement of state statutes or have a responsibility to ensure no one is

compromised by enforcement (id.), such generalized abilities would be irrelevant

to the question of sovereign immunity.As described in the moving brief, a suit for prospective injunctive relief

[against a state official] provides a well-established, but narrow, exception to

Eleventh Amendment immunity. Lawrence Livermore Nat. Laboratory, 131 F.3d

836, 839 (9th Cir. 1997) (citingEx parte Young, 209 U.S. 123 (1908)). Even in

such cases, the defendant official must have a direct connection with the

enforcement of the allegedly unconstitutional enactment. Los Angeles County Bar

Assn. v. Eu, 979 F.2d 697, 704 (9th Cir. 1992). [A] generalized duty to enforce

state law or general supervisory power over the persons responsible for enforcing

the challenged provision will not subject an official to suit. Id. The opposition

ignores these authorities and principles.



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The exception to sovereign immunity is based on an enforcement role, not a

supposed duty of the Governor to investigate the legality of a bill before he signs

it into law (Opp. 17:17-20) or of the Attorney General to recognize and correct

deficiencies in state law or end wrongful enforcement. Opp. 17:20-22. These

defendants have no enforcement role, and are therefore immune from this suit.

III.

THE OPPOSITION DOES NOT ESTABLISH THE EXISTENCE OF A CASE

OR CONTROVERSYBETWEEN THE COMMISSIONER AND PLAINTIFF

As the moving points and authorities showed, the Commissioner is not a

proper defendant because she plays a purely adjudicatory role in the enforcement of

the TAA. The opposition tries to cast doubt on the Labor Commissioners status as

a neutral adjudicator by arguing (with no factual or legal support) that again and

again the defendant [Labor Commissioner] has acted more like a prosecutor than an

adjudicator. Opp. 13:5-6. As evidence of the Long History of Controversy

Between the Labor Commissioner and Plaintiff (Opp. 13:1-2), plaintiff points to a

request from Commissioner to the California Supreme Court to depublish the court

of appeal decision inMarathon. This is apparently intended to show that the

Commissioner acts as an enforcer rather than an arbiter. Opp. 13:7-16. The

reference apparently comes from an unreported order dismissing the complaint in

the unpublished case of Siegel v. Bradstreet,No. CV 08-2480 CAS (SSx)2008 WL

4195949, C.D. Cal, Sept. 8, 2008. That order states that the Commissioners

request for depublication argues that incorporating severability into Cal. Lab.Code

1700 et seq. and allowing a personal manager who has engaged in unlicensed

procurement to potentially recover commissions severely undermines the incentive

for compliance with the Act envisioned by the Commission. Siegel v. Bradstreet

2008 WL 4195949, p.*3 at n.4. A depublication request based on such an argument

does not support plaintiffs inference that the Commissioner does not ordinarily act



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as an impartial arbiter, particularly where the Commissioner was a defendant in that

case.

Plaintiff goes on to argue, without support, the majority of the [complaints]

allegations are related to the Labor Commissioners 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 ones right to the benefit of their labor without due process.

Opp. 14:3-7. But the complaint alleges no facts to suggest that the Commissioner

lassos anyone, and the opposition cites no cases as examples of such conduct. To

the contrary, the Commissioners adjudicatory functions are mandated by law:

In cases of controversy arising under this chapter, the parties involvedshallrefer the matters in dispute to the Labor Commissioner, whoshallhear and determine the same . . . .

1700.44 (a) (emphasis added). All of the other alleged ultra viresacts quoted

above are essentially judicial in nature, even if plaintiff disagrees with them.

In sum, the plaintiffs section 1983 claims against the Commissioner must fail

because she is a neutral adjudicator, and hence not a proper defendant to this suit.

IV.

PLAINTIFF LACKS ARTICLE III STANDING BECAUSE IT AND ITS

MEMBERS HAVE SUFFERED NO HARM CAUSED BY STATE ACTION

Plaintiff suggests that it has standing to sue on its own behalf if the

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

organization to divert resources to counteract those illegal acts. Opp. 18:2-6

(quoting Common Cause/Ga. v. Billups, 554 F.3d 1340, 1350 (11th Cir. 2009), and

N.A.A.C.P. v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008)). But the

organizational plaintiffs in the cases plaintiff cites incurred direct losses in dealing

with allegedly unconstitutional enactments. Common Cause/Georgia, 554 F.3d at

1350-51;Browning, 522 F.3d at 1164. The present complaint does not allege any

such damages, and so there is no similar basis for standing here.



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But even if the complaint did allege such damages here, it still would not meet

the central point of the motion: Nostate actionhas caused harm to plaintiff or its

members. As stated in the moving brief, even if the Commissioner were enjoined

from enforcing the TAA as prayed in the complaint, a personal managers contract

made in violation of the TAA would remain voidable by the artist as contrary to

public policy. Motion 14:7-10. The opposition simply ignores the fundamental

requirements of injury in fact, causation, and redressability that were discussed in

the moving brief. SeeMotion, pp. 13-15 (citingLujan v.Defenders of Wildlife,504

U.S. 555, 560-61 (1992)).

Plaintiffs simple repetition of its flawed claim that Defendants . . . mete out

criminal penalties without statutory authority (Opp. 18:17-19) is insufficient to

overcome its lack of standing.

V.

PLAINTIFF HAS NOT ALLEGED OR SHOWN ANY INSTANCE OF

ARBITRARY,INCONSISTENT OR DISCRIMINATORY APPLICATION

In support of its facial challenge to the TAA, plaintiff cites City of Chicago v.

Morales, 527 U.S. 41, 55 (1999),for the proposition that no law should be drafted

or interpreted to encourage or facilitate arbitrary and potentially discriminatoryenforcement.

City of Chicagoinvolved an ordinance that required police, upon observing

people reasonably suspected of being street gang members loitering in any public

place, to order them to disperse. Failure to obey such an order was made a criminal

violation. The Supreme Court held this to be unconstitutionally vague in failing to

provide fair notice of prohibited conduct and in failing to establish minimal

guidelines for enforcement.

[T]he vagueness of this enactment makes a facial challenge appropriate. . . It is a criminal law that contains no mens rearequirement . . . , andinfringes on constitutionally protected rights. . . . When vagueness

permeates the text of such a law, it is subject to facial attack.



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527 U.S. at 55. The case is inapplicable here, because the TAA is not a criminal

statute, and is not enforced by state action.

The other cases cited by plaintiff to support the argument are distinguishable

for the same reasons. The claim inKolender v. Lawson, 461 U.S. 352 (1983), was

a facial challenge to a statute making it a misdemeanor to loiter or wander on the

streets, to fail to provide a credible and reliable identification and to fail to

account for presence on demand by police. The statute was held unconstitutionally

vague for failing to clarify what constituted a credible and reliable identification.

461 U.S. at 353-54. In Smith v. Gougen,415 U.S. 566 (1972), the petitioner had

been convicted under a statute dealing with desecration and contempt of the United

States flag for sewing a small flag onto the seat of his pants. The Supreme Court

held the flag-contempt portion of the statute was impermissibly vague because the

words treats contemptuously did not provide a readily ascertainable standard of

guilt. 415 U.S. 572-73. Because flags are commonly displayed on garments and

vehicles, the statute left uncertain what conduct it prohibited, and so could

encourage arbitrary arrests and convictions, particularly because it had never been

interpreted by the courts. Id.Significantly, the opinions in bothKolenderand Smithnoted that the statutes

in question had no history of judicial interpretation to clarify their meaning. Smith,

415 U.S. at 573;Kolender, 461 U.S. at 353-54. In evaluating a facial challenge to

a state law, a federal court must, of course, consider any limiting construction that a

state court or enforcement agency has proffered. Id. (citing Village of Hoffman

Estates v. Flipside, Hoffman Estates,455 U.S. 489, 494 (1982)). In the present

case, the TAA has a long history of judicial interpretation and application of the

term procure employment, discussed at length in the moving brief.

Plaintiff asserts, without citation or elaboration, that history of enforcement

of the TAA by the Labor Commission show several examples of inconsistent,

contrary interpretations by the Labor Commission, at times in almost



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simultaneously handed down determinations. Opp. 19, n.7. Leaving plaintiffs

inaccurate characterizations aside, what is important for present purposes is the

complete consistency of the published California decisions interpreting and

applying the Acts key term, procure employment, discussed in the moving brief

at 17:8-24. See, e.g.,Wachs v. Curry, 13 Cal. App. 4th 616, 629 n.3 (1993)

(observing [t]he term procure in connection with employment is used in

numerous California statutes . . . [and] is well understood; Styne, 26 Cal. 4th at 50.

These authorities show that, when applying the statute, the term procure

employment is understood according to ordinary common sense usage, which has

sufficed for decades. This being so, plaintiff cannot carry its burden to show both

that the statute is so vague that a person of ordinary intelligence cannot ascertain

what is prohibited, and that it is impermissibly vague in all of its applications.

VI.

ALL OF PLAINTIFFS REMAINING ARGUMENTS LACK MERIT

A.

The TAA Does Not Burden Interstate Commerce

Plaintiffs theory that the Act requires California residency has no basis in fact

Plaintiff s opposition addresses just one aspect of the showing in the motion that

out of state actors can get talent agency licenses. But even this narrow attempt fails

to offer any specific factual allegations to show that anyone has ever been denied a

license because he or she did not have a California domicile.

The theory rests on the weak foundation that since one provision of the Act

omits to ask licensees to provide their state of residence, 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. Opp. 21:5-9.

Such a reading is too strained to be valid. Moreover, as a matter of statutory

construction, such a far-fetched inference would not apply in any event, since

courts avoid statutory constructions that render an act unconstitutional. (I.N.S. v. St

Cyr, 533 U.S. 289, 300 (2001) (If an otherwise acceptable construction of a statute



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would raise serious constitutional problems, and where an alternative interpretation

of the statute is fairly possible, we are obligated to construe the statute to avoid

such problems.)

B.

The Act Cannot Violate the Contracts ClausePlaintiff fails to address the fact that the complaint does not allege the

continued existence of any contract that was entered into prior to the enactment of

the Act. Presumably, all existing contracts were formed after the Act was adopted,

and are presumed to incorporate the laws that exist at the time they are entered.

Additionally, as the moving brief pointed out, the Contracts Clause is directed

against impairment by legislation, not by adjudication.

C.

The Act Cannot Violate the Thirteenth Amendment As It

Does Not Compel Anyone to Work Against Their Will for

Another

The opposition offers no answer to the authorities discussed in the moving

brief. It instead repeats the irrelevant argument that the Commissioner enforces

criminal penalties without statutory authorization. The theory fails because the

remedy for violating the Act is a private, civil remedy, not involuntary servitude.This fact also rebuts oppositions alternative theoriesthat the Act imposes cruel

and unusual [punishment] and therefore [is] in violation of the Eighth Amendment

and the meting out of a criminal penalty without the right to a jury trial or full

discovery is also a violation of the due process clause of the Fifth Amendment.

Opp. 23:14-20.

D.

The Act Cannot Violate the First Amendment

The opposition does not address any of the authorities discussed in the part of

the moving brief devoted to the First Amendment claim. That is, the Act regulates

conduct not expression, it is content-neutral and there is no state action involved in



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its enforcement viz--viz personal managers. Plaintiffs silence confirms the merit

of the motion on this issue.

E. Plaintiff Should Be Barred from Conducting Discovery

Unless and Until It Can State a Viable TheoryThe Opposition closes with a plea to be permitted to conduct discovery,

apparently in the hope that plaintiff may learn some fact that will rescue its lawsuit.

But the facts that it hopes to discover, e.g., (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 Plaintiffs members that have been affected by the TAA; and (4) how

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

all matters that by their nature are best known to plaintiff and its alleged members.

If plaintiff cannot obtain such information without discovery, that would suggest its

claim to represent personal managers is questionable at the threshold.

CONCLUSION

For the reasons set forth here and in the motion, this case should be dismissed

without leave to amend.

Date : Fe ruary 11, 2013

Respect u y su m tte ,

KAMALA D.HARRISAttorney General of CaliforniaDOUGLAS J.WOODSSenior Assistant Attorney General

/S/ Michael Glenn WitmerMICHAEL GLENN WITMER

Deputy Attorney GeneralAttorneys for Edmund G. Brown Jr., GovernorKamala D. Harris, California Attorney Generaland Julie Su, California Labor Commissioner

SA2012108768

60942056.doc



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CERTIFICATE OF SERVICE

Case Name: National Conference of Personal

Managers, Inc. v. Brown,

Edmund G., et al.

No. CV12-09620 DDP(RZx)

I hereby certify that on February 11, 2013, I electronically filed the following documents with

the Clerk of the Court by using the CM/ECF system:

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS COMPLAINT

I certify that allparticipants in the case are registered CM/ECF users and that service will be

accomplished by the CM/ECF system.

I declare under penalty of perjury under the laws of the State of California the foregoing is trueand correct and that this declaration was executed on February 11, 2013, at Los Angeles,California.

Angela Artiga /s/ Angela Artiga

Declarant Signature

60944046.doc


Defendants' Reply Brief Supporting Motion To Dismiss

Documents

Transcript of Defendants' Reply Brief Supporting Motion To Dismiss