Defendants' Reply Brief Supporting Motion To Dismiss

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DEFENDANTS REPLY IN SUPPORT OF MOTION
TO DISMISS
1 CASE NO. 12-09620 DDP(RZX)

KAMALA D. HARRIS
Attorney General of California
DOUGLAS J. WOODS
Senior Assistant Attorney General
MICHAEL GLENN WITMER
Deputy Attorney General
State Bar No. 110717
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 897-4902
Fax: (213) 897-1071
E-mail: Michael.Witmer@doj.ca.gov
Attorneys for Edmund G. Brown Jr., Governor
Kamala D. Harris, California Attorney General
and Julie Su, California Labor Commissioner
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
NATIONAL CONFERENCE OF
PERSONAL MANAGERS, INC., a
NEVADA not-for-profit corporation,
Plaintiff,
v.
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; JULIE A. SU,
California Labor Commissioner, in her
official capacity,
Defendants.
12-09620 DDP(RZx)
DEFENDANTS REPLY IN SUPPORT OF
MOTION TO DISMISS COMPLAINT

Date: February 25, 2013
Time: 10:00 a.m.
Courtroom: 3
Judge: The Hon. Dean D. Pregerson
Trial Date: None set
Action 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

TO DISMISS
i CASE NO. 12-09620 DDP(RZX)

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

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

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

IV. Plaintiff Lacks Article III Standing Because It and Its Members
Have 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 It
Does Not Compel Anyone to Work Against Their Will
For Another ............................................................................... 12

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

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

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

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TABLE OF AUTHORITIES

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TO DISMISS
ii CASE NO. 12-09620 DDP(RZX)

CASES
Astoria Federal Savings & Loan Association v. Solimino
501 U.S. 104 (1991) .................................................................................................................. 4
City of Chicago v. Morales
527 U.S. 41 (1999) .............................................................................................................. 9, 10
Common Cause/Ga. v. Billups
554 F.3d 1340 (11th Cir. 2009) ................................................................................................. 8
Ex parte Young
209 U.S. 123 (1908) .................................................................................................................. 6
Hewitt v. Joyner
940 F.2d 1561 (9th Cir.1991) .................................................................................................... 4
I.N.S. v. St. Cyr
533 U.S. 289 (2001) ................................................................................................................ 11
Kolender v. Lawson
, 461 U.S. 352 (1983) .............................................................................................................. 10
Lawrence Livermore Nat. Laboratory
131 F.3d 836 (9th Cir. 1997) ..................................................................................................... 6
Los Angeles County Bar Assn. v. Eu
979 F.2d 697 (9th Cir. 1992) ..................................................................................................... 6
Lujan v.Defenders of Wildlife
504 U.S. 555 (1992) .................................................................................................................. 9
Marathon Entertainment, Inc. v. Blasi
42 Cal. 4th 974 (2008) .................................................................................................. 3, 4, 6, 7
N.A.A.C.P. v. Browning
522 F.3d 1153 (11th Cir. 2008) ................................................................................................. 8
Siegel v. Bradstreet
2008 WL 4195949 .................................................................................................................... 7
Siegel v. Bradstreet
No. CV 08-2480 CAS ............................................................................................................... 7
Smith v. Gougen
415 U.S. 566 (1972) ................................................................................................................ 10
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TABLE OF AUTHORITIES

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TO DISMISS
iii CASE NO. 12-09620 DDP(RZX)

Styne v. Stevens
26 Cal. 4th 42 (2001) .......................................................................................................... 3, 11
Village of Hoffman Estates v. Flipside, Hoffman Estates
455 U.S. 489 (1982) ................................................................................................................ 10
Wachs v. Curry
13 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, 12
Eleventh Amendment ...................................................................................................................... 6
Thirteenth Amendment ............................................................................................................. 2, 12
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TO DISMISS

KAMALA D. HARRIS
DOUGLAS J. WOODS
State Bar No. 110717
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 897-4902
Fax: (213) 897-1071
E-mail: Michael.Witmer@doj.ca.gov
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
NATIONAL CONFERENCE OF
PERSONAL MANAGERS, INC., a
NEVADA not-for-profit corporation,
Plaintiff,
v.
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; JULIE A. SU,
California Labor Commissioner, in her
official capacity,
Defendants.
12-09620 DDP(RZx)
DEFENDANTS REPLY IN SUPPORT OF
MOTION TO DISMISS COMPLAINT

Date: February 25, 2013
Time: 10:00 a.m.
Courtroom: 3
Judge: The Hon. Dean D. Pregerson
Trial Date: None set
Action 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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TO DISMISS

1. Violations of the Talent Agency Act (Act or TAA) can have civil
consequences even 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 enforcement of 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 ignores
the 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 also Marathon Entertainment, Inc. v. Blasi, 42 Cal. 4th 974, 984
(2008). Just because the Legislature chose to eliminate criminal sanctions 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 in
mind, the California Supreme Court in Marathon considered,
What is the artists remedy for a violation of the Act? In particular, when
a manager has engaged in unlawful procurement, is the manager always
barred from any recovery of outstanding fees from the artist[,] or may the
court or Labor Commissioner apply 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 in Marathon read
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 are
illegal: 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 repudiate
the generally applicable and long-standing rule of severability. Hence,
that rule applies absent other persuasive evidence that the Legislature
intended 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). And Marathon completely refutes the argument that the
Commissioner has created a remedy that the Legislature withheld. Opp. 10:11-15.
Plaintiff argues that [s]tatutes should not be construed so as to avoid
rendering superfluous any statutory language. Opp. 11:20-22 (citing Astoria
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.
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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 licensure
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as though that were something improper. Opp. 9:20-25. To the
contrary, this actually demonstrates that the Act does not curb competition or favor

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The 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 or
unlawful acts or omissions. 1700.16.
The agent must submit to the Commissioner the form of contract it will use
with 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 and
disbursing trust funds ( 1700.25), and maintain and produce records for
inspection. 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 novo
appeal 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.
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Contrary to the opposition, California residency is not required.
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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 in Marathon, 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) (citing Ex 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 CONTROVERSY BETWEEN 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 in Marathon. 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 involved
shall refer the matters in dispute to the Labor Commissioner, who shall
hear and determine the same . . . .
1700.44 (a) (emphasis added). All of the other alleged ultra vires acts 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: No state action has 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. See Motion, pp. 13-15 (citing Lujan 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 discriminatory
enforcement.
City of Chicago involved 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 rea requirement . . . , and
infringes 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 in Kolender 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 both Kolender and Smith noted 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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TO DISMISS

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 Clause
Plaintiff 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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TO DISMISS

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 Theory
The 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.

Dated: February 11, 2013

Respectfully submitted,
KAMALA D. HARRIS
DOUGLAS J. WOODS
/S/ Michael Glenn Witmer
SA2012108768
60942056.doc

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 all participants 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 true
and correct and that this declaration was executed on February 11, 2013, at Los Angeles,
California.

Angela Artiga /s/ Angela Artiga
Declarant Signature

60944046.doc

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