AN AMICUS LETTER FROM RICK SIEGEL In the Matter of Echo Lake Management LLC v. Meg Deloatch Van Nuys Superior Court Case No. 21VECP00262 Department 30, Van Nuys Courthouse East Dear Your Honor. Tam requesting this amicus letter be accepted for the following reasons: + This is a review of the CA Labor Commission's (“CLC”) administrative agency ruling and that ‘Friend of the Court’ submissions are appropriate for appeals; and The two issues raised hereinunder have never been raised in a State Court action. As stated in Conerly v. State Personal Board, (2006) 37 Cal Ath 1169 at 1177, Amici curiae "perform a valuable role for the judiciary precisely because they are nonparties who often have a different perspective from the principal litigants. “Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the partics. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions.” Thave served as an expert witness for both artists and personal managers, have authored over a dozen articles published by the Los Angeles Daily Joumal on the implications and enforcement of the Talent Agencies Act (“Act,” “TAA”) and relatedly, the winning party in the landmark State Supreme Court case Marathon Entertainment v. Rosa Blasi, (2008) 42 Cal. 4th 974, DOES THE TAA’S STATUTORY CONSTRUCTION GIVE ADJUDICATORS THE, RIGHT TO EXTINGUISH VIOLATORS’ CONTRACTUAL RIGHTS? Modern enforcement of the Talent Agencies Act goes back to 1967, when Marty Balin (nee Buchwald) sued to get he and his band, the Jefferson Airplane, out of the obligations of their manager/client contract with Matthew Katz. Per Buchwald v. Superior Court, (1967). 254 Cal. App.2d 347 at 351, “Since the clear object of the [Talent Agencies Act]! is to prevent improper persons from becoming [talent agents] and to regulate such activity for the protection of the public, a contract 1 Before 1978, ho TAA was called the Anists” Managers Act apd talent agents were called artists” managersbetween an unlicensed artists’ manager and an artist is void. (See Wood v. Kreps, (1914) 168 Cal. 382, 386; Loving & Evans v. Blick, (1945) 33 Cal. 2d 603, 608-609; Contracts otherwise violative of the Act are void (see Severance v. Knight- Counihan Co., (1947) 29 Cal. 2d 561, 568; Smith v. Bach, (1920)183 Cal. 259, 262.” All subsequent TAA licensing disputes where the CLC finds an unlicensed person has procured employment opportunities for their artist clients use Buchwald as the authority to void a violator’s contractual rights either in part? or entirety. However, there is a question as to whether Buchwald, and thus all TAA licensing cases thereafter, is tainted by judicial error, as Buchwald conflicts with all four higher court holdings it claims to follow. The Wood (at 386) Court refused to void a contract because the licensing scheme in question did not “declare that a contract made by any one in the conduct of the various businesses for which licenses are provided to be procured ... be invalid; nor is there any provision therein indicating in the slightest this failure was intended to affect in any degree the right of contract.” The TAA has no such declarations either. As stated in Marathon (at 989): “The Act is silent ~ completely silent ~ on the subject of the proper remedy for illegal procurement.” “The Act provides no remedy for its violation.” Marathon at 990. Had Buchwald properly followed Wood, it would have refused to void Buchwald’s contractual obligations to the Airplane’s personal manager because the TAA has no provision in the slightest indicating a failure to get a talent agency license invalidates or in any way is to affect the unlicensed person’ right to contract. As Buchwald was a Court of Appeals decision, and thus forced to follow the higher court’s holding, even had that Court disagreed with Mood, it did not have the judicial power to do rule otherwise. "Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior Before Marathon Snieriainmentv. Blas), the CLC would void ab initio a found violator’s contractual rights even {or single act of unlicensed procurement ina multi-year relationship. Marathon holds thatthe administrative agency must consider the theorem of severabibty imo their dectstons.jurisdiction. Otherwise. the doctrine of stare decisis makes no sense.” Aulo Equity Sales, Ine. v. Superior Court (1962) 57 Cal 2d 450, 455. Per Loving at 608, “[I]thas been repeatedly declared in this state that ‘a contract made contrary to the terms ofa law designed for the protection of the public amd prescribing a penalty for the violation thercof is illegal and void, and no action may be brought to enforce such contract."” (Emphasis added.) Without the TAA having the requisite prescribed penalty, to properly follow Loving, Buchwald was to upheld Ketz’s contractual rights: as stated above, a Court of Appeals ruling cannot conflict with a State Supreme Court holding. Per Severance at 568: “The general rule controlling in cases of this character is that where a statute prohibits or attaches a penalty to the doing of an act, the act is void, and this, notwithstanding that the statute does not expressly pronounce it $0, and it is immaterial whether the thing forbidden is malum in se or merely malum prohibitum.” “If the statute does not provide expressly that its violation will deprive the parties to sue on the contract and the denial of the relief is wholly out of proportion to the requirements of public policy or appropriate individual punishment, the right to recover will not be denied.” id. at 572 The TAA does not attach a penalty for unlicensed procurement, and the Act does not expressly provide that anyone found to have procured for an artist without a talent agency license is to be deprived of their rights to sue to preserve their contractual rights. Had Buchwald properly followed Severance, it would have upheld rather than extinguished Katz’s contractual rights. Smith (at 262) holds, “The imposition by statute of a penalty implies a prohibition of the act to which the penalty is attached, and a contract founded upon such act is void.” Had Buciweald properly followed Smith, as the Legislature did not impose by statute any penalty to the activity of procuring employment for an artist without a license, it would have held that an unlicensed representative’s contract, inespective of whether they procured employment for the artist or not, are not to be voided.While Buchwald posits the high court cases it cites gives adjudicators authority to extinguish a violator’s contractual rights, just the opposite, all four unequivocally cement the contractual rights of unlicensed persons inside licensing schemes, like the Talent Agencies Act, without express penalties for engaging in the specific act under controversy or clearly state a found violator has no contractual rights. Itis irrelevant whether the jurists did not recognize the specifies of the TAA’s statutory construction or misread the precedents; Buchwald wrongfully strays from the courts with superior jurisdiction and adjudicators weighing whether an unlicensed representative’s efforts to procure an employment opportunity for their client was lawful should thus look to Wood, Smith, Loving and Severance for precedential guidance. This is not a close call. Just the opposite, outside of the judicial error causing the anomaly of TAA enforcement, “Where a statute fails to provide a penalty it has been uniformly held that it is beyond the power of the court to prescribe a penalty.” New Jersey ». Fair Lawn. Service Center, Inc. (N.J. 1956) 120 A.2d 233, 236. “Elementary notions of fairness enshrined in this Court's constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose.” BMIV of America v. Gore 517 US. 559, 574 (1995); De Anza Santa Cruise Mobil Estates Homeowners Assn. v. De Anza Sania Cruz Mobile Fstates, 94 Cal.App 4th 890, 904. “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 arc assessed.” Lambert v, CA. 335 US. 225, 228 (1957) As stated by the United States Supreme Court, violations of law are “made up of two parts, forbidden conduct and a prescribed penalty. The former without the latter is no [violation].” (5. ¥. Evans, 333 U.S. 483, 486. In Evans, the U.S. Supreme Court held that no matter how obvious it is that a Icgislature may want to punish a violator, notice is needed. At issue was a federal statuteprohibiting both smuggling undocumented persons into the country and harboring undocumented persons already in the country. However, because Congress had only codified a remedy ~ five years in prison ~ for the smuggling, and Evans had harbored an undocumented person, the Court ruled itself without authority to decide upon and mete out a remedy. Assigning a penalty without statutory guideposts “is a task outside the bounds of judicial interpretation;” reserved only for and by legislative action. Id at 495. ‘The CA Supreme Court has specifically prohibited administrative agencies like the Labor Commission to assign uncodified remedies: “An administrative agency cannot by its own regulations create a remedy which the Legislature has withheld. "Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to strike down such regulations.”” Dyna-Med Inc. v. Fair Empl. & Housing Comm., 43 Cal. 3d 1385,1388 (1987), “It is fundamental an administrative agency may not usurp the legislative function.” Id quoting Agricultural Lab. Relations Bd. v. Sup. Court, 16 Cal.3d 392, 419 (1976). Dyna-Med limited its review and prohibition to creating a remedy to punitive damages. In Peralta v. Fair Empl. & Housing Comm., 52 Cal. 34 40, 60 (1990) the State Supreme Court similarly held that without statutory authority, administrative agencies are barred from creating compensatory remedies. The State Contractors Act expressly states that non-licensees cannot “bring or maintain any action, or recover in law or equity in any action, in any court in this state for the collection of compensation for the performance of any act or contract where a license is required ... regardless of the merits of the cause of action.” See BPC § 7031. The TAA provides no such or similar notice. Ttis “a public offense punishable by a fine” up to $20,000, and/or “by imprisonment” of up to six months for those “acting as a real estate broker, real estate salesperson, or mortgage loan originator ... or who advertises using words indicating” the same. All the other licensing schemes that regulate activities — reserve some activities only forlicensees — have like statutes so those considering engaging in those actions without first qualifying and obtaining a license know the risks. The TAA provides no such notice. As the TAA has no prohibitionary statute or penalty provision, and with Peralia and Dyna-Med barring, the Labor Commissioner and all administrative agencies from creating remedies that the Legislature has withheld, itis natural to ask: why have unlicensed representatives been so compromised by TAA enforcement? ‘CAN THE TAA WITHSTAND A VOID FOR VAGUENESS AS APPLIED (CHALLENGE WITHOUT DELINEATING WHICH ELEMENTS OF PROCUREMENT ARE RESERVED FOR LICENSEES For a statute to pass the bar of constitutionality, there must be clarity as to (1): who is being regulated; (2): whai conduct is being regulated; and (3): which, if any remedy is there for ignoring the relevant regulations. See VA Law Review, “Due Process Limitations on Occupational Licensing” Vol. 59, No. 6 (Sept. 1973) "Statutes, regardless of whether criminal or civil in nature, must be sufficiently clear as to provide adequate notice of the prohibited conduct as well as to establish a standard of conduct which can be uniformly interpreted by the judiciary and administrative agencies." Hall v. Bureau of Employment Agencies, 64 Cal. App 3d 482, 491 (1976) Marathon (at 989) notes how the TAA “contains no definition, and the Commissioner has struggled over time to better delineate which actions involve mere general assistance to an artist’s career and which stray across the line to illicit procurement.” The Labor Commissioner has gone on record about this lack of clarity. As chair of the California Entertainment Commission (“CEC”), created in 1982 to recommend to the Legislature how to best enforce the TAA, the Commissioner authored its final Report, which in part spoke to the problems of the Act not delineating what procurement elements are reserved for licensees: ‘There is “an inherent inequity — and some question of constitutional due process — in subjecting one to criminal sanctions in violation of a law which is so unclear and ambiguous as to leave reasonable persons in doubt about the meaning of the language or whether a violation has occurred, 6“Procure employment’ is just such a phrase ... [and it] has left the personal manager uncertain and highly apprehensive about the permissible parameters of their daily activity” Exhibit 1, Report of the CA. Ent. Commission, Pg. 25 If those encharged with the enforcement of the Act cannot discern the bright line between which activities are lawful and which are illicit, that in and of itself should render the enforcement of unlicensed procurement unconstitutionally vague. The U.S. Supreme Court has established specific guidelines for constitutional clarity: “Living under a rule of law entails various suppositions, one of which is that ‘fall persons] are entitled to be informed as to what the State commands or forbids, FCC v. Fox Television Stations, Inc., 132 8. Ct. at 2317. Civil matters must receive the “same basic protections against ‘judgments without notice’ as criminal matters.” BMW v. Gore, $17 US. 559, 574 (1996). “tis a basic principle of due process that an cnactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. Rockford, 408 U.S. 104, 108 (1972) In 2014, a * Circuit Court invalidated an ordinance banning people from sleeping in their cars was found void for vagueness because it failed “to draw a clear Tine between innocent and criminal conduct.” Desertrain v. City of Los Angeles, 754 F.3d 1147, “The Deserirain court pointed to a litany of questions the statute left unanswered: “Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain?” Those unanswered questions created ambiguities making it, “impossible for citizens to know how to keep their conduct within the pale.” /d. at 1156. The most accepted responsibility for a personal manager is to work with neophyte clicats the appropriate talent agents. Per Labor Code § 1700.44 (d), personal managers can work in conjunction with, and at the request of, a licensed talent agency, but does not clarify whether personal managers can proactively work to get agents come aboard. Is it lawful for an unlicensed person to reach out to a talent agency about a client, working to put the artist's sales team together? ‘The Act, as written, leaves this unanswered.Itis universally accepted that personal managers choose the clients 8° by 10”. refine the resume, and edit the videos that first are used to garner an agent's interest and then used by the agent to pitch buyers. Is it lawful for a personal manager to ercate the sales materials, an essential part of procurement? The Act, as written, left this unanswered. Is it lawful for personal managers to forward these materials to buyers? In a reply briefto a legal challenge brought in Federal Court by the National Conference of Personal Managers, the Labor Commissioner wrote that it was inside the legal line to, “send [] out resumes, photographs, videotapes, or written materials for an artist.” The Act, as written, left this unanswered, If one accepts that it is lawful for personal managers to send out an artist's marketing materials, is it unlawful to follow up that submission with 2 call or email? The Act, as written, left this unanswered. Is it unlawful if the recipient of the marketing materials proactively calls the unlicensed representative about the artist? The Act, as written, left this unanswered Is it unlawful ifa buyer proactively contacts an unlicensed representative about the availability of a client? The Act, as written, leaves this unanswered. 1s it unlawfal if an unlicensed representative receives a call from a buyer late at night who cannot reach the client’s agent and want to hire the actor to report to work at GAM ‘the next morning? If receiving the call is legal, if the manager tells the artist about the ‘opportunity, has the legal line been crossed? What if the artist takes the job: has that made the manager’ actions unlawful, even if the manager just received an offer and passed it on and did not engage in procurement past sharing information with the client? The Act, as written, left this unanswered Assuming that it is lawful for an unlicensed representative to receive a call and can inform their client about a job starting hours away, if, in that situation, the manager asks the for more money that originally offered by the buyer; have the manager’s actions now changed from law-abiding to law-breaking? The Act, as written, left this unanswered. ‘To repeat the landmark holding in Grayned’ “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” And torepeat the holding in Desertrain, a statute should be voided for vagueness if it fails “to draw a clear line between innocent and criminal conduct.” § 1700.4 (a) fails that test. “The due process clause [of] the fourteenth amendment requires a statute be declared void when itis so vague that “men of common intelligence must guess at its meaning and ). 385, 391 (1926). ‘These two issues ~ the Legislature neither defining the elements of procurement, and differ as to its application...” Conally v General Consirn. Co., 269 U. the Act's lack of a penalty provision — seem related. There is no legislative history indicating the State ever wanted to prohibit personal managers from procuring employment for artists and penalize them should the prohibition be ignored. Relatedly, there would be no reason for the Legislature to delineate which elements of procurement are reserved for licensees if they never had any intention of making any of the elements unlawful While ‘friends of the court’ filings are most ofien submitted after one or both parties file their principal briefs, here the objective is to inform the court of important and heretofore unraised issues and give both parties the full opportunity to either buttress or explain why they may not be applicable. ‘on Entertainment 22971 Darien Steet Woodland Hills CA 91364PROOF OF SERVICE ‘STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Lam over the age of 18 and not party to this action. Jama resident of or employed in the county where the mailing occurred. On December 23, 2021, | served the parties attorneys and Jessica Hernandez of the California State Labor Commission in the action entitled ECHO LAKE ENTERTAINMENT v. MEG DELOATCH via email toand US. MAIL [x] BYU. MAIL (| BYFax (J BYMESSENGER |] BY PERSONAL (xy stare {| FEDERAL | deposited such an envelope in the mail at Calabasas, California, with postage thereon fully prepaid, delivered to DAVID JONELIS, LAVELY & SINGER 2049 CENTURY PARK EAST, STE 2400, LACA 90067 ‘MAX SPRECHER, LAW OFFICES OF MAX. SPRECHER ‘5850 CANOGA AY. 4"! FL WOODLAND HILLS CA 91364 JESSENYA Y HERNANDEZ, DEPT. OF INDUSTRIAL RELATIONS, DLSE 6150 VAN NUYS BLVD, STE 206, VAN NUYS CA 91402 | caused such decuments to be faxed to the abave mentioned address(es) | caused stich envelope to be mescengered to the above mentioned address(es) I caused suich envelope to be delivered by hand to the offices of tna SERVICE address(es), I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. | dectare that lam employed in the office of a member of the bar of this Court whose direction the service was made. Executed on December 23, 2021 in Woodland Hills, California Jennie Nigrosh. 10exhib ck | Reportoftte CA, Extertaiument Gpwssee~ Issue 3 Should the criminal sanctions of the Act removed by AB 997 be reinstated and, if so, in what forn? Conclusion It is the majority view of the Commission that the industry woulé be best served without the imposition of civil or criminal sanctions for violation of the Act. Recommendation The Commission recommends that the criminal sanctions which were removed from the Act by AB 997, not be restored to the Act. It is further reconmended that a new sentence be added to Section 1700.84 of the Act as follower Any provision of any law or provision in the State of California to the contrary notwithstandang, failure of any person to obtain a license from the Labor Commissioner under this Act shall not be considered a 24eriminal act under any law of this state, Discussions ‘The criminal penalties which were contained in the Act prior to their removal by AB 997 have been invoked on a number of occasions. There is, however, an inherent inequity--and sone question of constitutional due process-~in subjecting one to criminal sanctions in violation of a law which 1s so uncleer and ambiguous #0 to leave reasonable persons in Goubt about the meaning of the Janguage or whether @ violation has occurred. "Procure employment" is just such a phrese. while a majority of the Commission believes that there should be no unlicensed ac; ity, anvelving any aspect of the procurement of employment for artists, the uncertainty of knowing when such activity may or may not have occurred at pain of criminal punishment has left the personel maneger uncertain and highly apprehensive about the pernissible parameters of their daily activity. Therefore, the Commission indicated in its early discussions that if criminal penalties vere to be reinstated, the failure to obtain a license should be no more than an infraction meaning that monetary but no criminal penalties should attach to the failure to obtain a licence. i 25PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Jam over the age of 18 and not party ta this action, Tam a resident of or employed in tne county where the mailing occurred. On December 23, 2021, | served the parties attorneys and [essica Hernander of the California State Labor Commission in the action entitled ECHO LAKE ENTERTAINMENT V. MEG DELQATCH via email toand US. MAIL. De] BY US MAIL LJ ByFax (] BY MESSENGER [1 BYPERSONAL. [x] Stal U1 FEDERAL. 1 deposited such an envelope in the mail at Calabasas, California, with Postage thereon fully prepaid, delivered to DAVID JONELIS, LAVELY & SINGER 2049 CENTURY PARK EAST, STE 2400, LACA 90067 MAX SPRECHER, LAW OFFICES OF MAX |. SPRECHER 5850 CANOGA AV.. 4™ FL WOODLAND HILLS CA 91364 JESSENYA Y HERNANDEZ, DEPT. OF INDUSTRIAL RELATIONS, DLSE 6150 VAN NUYS BLVD, STE 206, VAN NUYS CA 91401 caused such documents to he faxed to the above mentioned address(es), | caused such envelope to be messengered to the above mentioned address(es). [caused stich envelope to be delivered by hand to the offices of the SERVICE address(es) | declare under the penalty of perjury under the laws of the State of Calitornia that the foregoing is true and correct. | declare that lam employed in the office of a member of the bar of ‘this Court whose direction the service was mace. Executed on December 23, 2021 in Woodland Hills, California Jennte Nigrosh