Document 13SUPERIOR COURT OF CALIFORNIA fcumealecrarieanns COUNTY OF LOS ANGELES COURTHOUSE ADDRESS: men FLED toss Stanley Mosk Courthouse Sages Co Coa 111 North Hill Street Los Angeles, CA 90012 07/28/2023 vt. Sy, Emer Chk Caan PLAINTIFF) Vel Diane Pardoe et al oa DEFENDANT(S): Jude Salazar NOTICE OF CASE REASSIGNMENT AND ORDER FOR Aeestetalaulcen PLAINTIFF TO GIVE NOTICE (Vacate Dates) |23STCPO0683 TO THE PLAINTIFF(S) AND PLAINTIFF'S ATTORNEY OF RECORD OR PLAINTIFF(S) IN PROPRIA PERSONA: You are hereby notified that effective 07/28/2023 , an order was made that the above- entitled action, previously assigned to Mel Red Recana is now and shall be assigned to Barbara A. Meiers as an Individual Calendar (IC), direct calendaring judge for all purposes, including trial, in department 12 at Stanley Mosk Courthouse (See Chapter 3, Los Angeles Court Rules) Ail matters on calendar in this case are advanced to this date, vacated, to be rescheduled in the newly assigned department indicated above unless otherwise ordered by the court. Notice is further given that plaintiff in propria persona or counsel for the plaintiff is ordered to give notice of this all-purpose case assignment by serving a copy of the notice on all parties to this action within 10 days of service of this notice by the court, and file proof of service thereof within 12 days of this notice. Failure to timely give notice and file proof of service may lead to imposition of sanctions pursuant to Code of Civil Procedure section 177.5 or otherwise. David W. Slayton, Executive Officer / Clerk of Cour Dated; 07/28/2023 By G.Vela Deputy Clerk NOTICE OF CASE REASSIGNMENT AND ORDER FOR PLAINTIFF TO GIVE NOTICE (Vacate Dates) (Proposed LACIV 252) ASC Approved (00/00)Document 14 \seDiane Pardoe/Sarah Pardoe 312 N. Kenwood St. Apt. A Burbank, CA 91505 523.363.3803 Phone diane@iristalentmanagement,com sarah @iristalentmanagement.com ting Pro Per SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT (STANLEY MOSK COURTHOUSE) Case No. 23STCP00683 DIANE PARDOE and Filed: March 2, 2023 SARAH PARDOE, Individuals, Assigned: Hon, Barbara A. Meiers a Department 12 Appellants/Petitioners, APPELLANTS’ SUMMARY vs. DESCRIPTION OF ACTION IN ADVANCE OF CASE MANAGEMEN’ JUDE SALAZAR, an Individual, CONFERENCE Appellee/Respondent. ) Case Management Conference: Date: September 12, 2023 Time: 9:00 AM Dept. 12 I Introduction Appellants Diane Pardoe and Sarah Pardoe submit this brief history and summary of the above-captioned action for the Court’s consideration in advance of the Case Management Conference scheduled for September 12, 2023, in order to provide the Court with some background of the issues and milestones of the action, Tl. History and Nature of the Action Appellants originally filed a limited action Breach of Contract filing (228TLC04635), on July 12, 2022. The action involved a claim by Appellants Diane Pardoe and Sarah Pardoe, together the owners of Iris Talent Management, a personal management firm, for unpaid commissions from Respondent Jude Salazar, an actor and artist, pursuant to a written management contract. 1 APPELLANTS" SUMMARY DESCRIPTION OF ACTION IN ADVANCE OF CASE MANAGEMENT CONFERENCEene In response, Respondent raised a defense under the Talent Agencies Act (“TAA”, Act”), filing a Petition to Determine Controversy with the California Labor Commission (CLC) on August 4, 2022, and moving to stay the Superior Court case in the meantime. | Appellants opposed and appealed the stay, based on the argument that because the TAA has Ino penalty provision, there was no colorable claim. On October 20, 2022, the case was stayed pending the matter being referred to the CLC. After receiving an interlocutory Order from the CLC, Plaintiffs filed an appeal, [pursuant to CA Labor Code § 98.2 and CCP § 437¢, on the original Breach of Contract case, which was received and accepted on December 29, 2022. Plaintifi were then i instructed by the Clerk’s office to re-file, as these appeals must be classified as unlimited land assigned a new case number, department, and judge (23STCP00010). After the CLC’s office issued an inordinately fast final determination on February 17, 2023, Plaintiffs filed (again as required by the Clerk’s office) a third matter |(23STCP00683), appealing that determination, Plaintiffs then chose to vacate the interlocutory appeal, filing a Notice of Entry of Dismissal on June 12, 2023. Respondent filed a Notice of Related Case on March 3, 2023. Appellants followed lup on the status of the ruling on the Notice of Related Case filings, and the cases were ruled as related on July 28, 2023, MM. ~The Talent Agencies Act The Talent Agencies Act is being enforced in a wrongful and extrajudicial way. Though CLC policy is to bar procurement by unlicensed persons and to void the contractual rights of those who are found to have done so, the Act itself has no such prohibition or remedy. The TAA lacks either an express provision reserving the act of procuring |employment opportunities for artists / a provision prohibiting non-licensed persons from engaging in such activities, or a remedy statute giving notice as to what consequence hunlicensed persons face should they try to procure jobs for an artist (as defined in CA, ‘Labor Code 1700.4. (a)) without a license. 2 (Go APPELLANTS" SUMMARY DESCRIPTION OF ACTION IN ADVANCE OF CASE MANAGEMENT CONFERENCE,aa ws The last State Supreme Court case involving the Act, Marathon Entertainment v. Rosa Blasi, 42 Cal. 4th 974, (2008) makes it inarguably clear the TAA has no remedy for junlicensed procurement, memorializing it in three separate sections: The TAA “is silent — completely silent — on the subject of the proper remedy for illegal procurement.” Marathon at 991. “The Act provides no remedy for its violation.” Jd, “The Legislature has not seen fit to specify the remedy for violations of the Act.” Jd, at 996, For an action to be unlawful, “there must be both forbidden conduct and a prescribed penalty. The former without the latter is no violation.” Wayne R. LaFave, Substantive |Criminal Law § 1.2(d), (1986), U.S. v Evans, 333. U.S. 483, 485-586 (1948). Further, per |Evans, no matter how clear a legislature’s intention may be to regulate an activity for licensees or to forbid it completely, if the Legislature does not assign a penalty, no adjudicator can prescribe one. It is a legislative function only; the Judicial branch has no authority, The California Supreme Court (CASC) specifically requires adjudicators to uphold lunlicensed persons’ rights to contract when a licensing scheme has no “provision therein indicating in the slightest this failure [is] intended to affect in any degree the right of contract.” Marathon v. Blasi, 140 Cal.App.4th 1001, 1010 (2006), quoting Wood v. Krepps, 168 Cal. 382, 387 (1914). The CASC expressly bars the CLC and all administrative agencies from “creat[ing] ja remedy which the Legislature has withheld.” Dyna-Med Inc. v. Fair Empl. & Housing ‘Comm., 43 Cal. 3d 1385, 1388 (1987). “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 lobligation to strike down such regulations.” Jd. Respondent's only counter to Appellants’ claims has been that a federal court has already heard and rejected the argument that the TAA has no penalty provision, and that the notice of penalty for the TAA - CA Labor Code § 1700 et seq — are the statutes outlining the doctrine of severability, CA Civil Code §§ 1598 and 1599. Appellants have explained 3 Gl APPELLANTS" SUMMARY DESCRIPTION OF ACTION IN ADVANCE OF CASE MANAGEMENT CONFERENCEyo nw Ce rau that while Federal Court Judge Christina Snyder did make that finding in a 2008 matter, in 2018, recognized: 1. The severability statutes are not penalty provisions, but as stated in Marathon, are to be considered in the cases where a violation had already been found and the voidance ignited, and should the voiding be complete or partial. nv Should the Civil Code statutes be construed as the remedy, as there is nothing in the TAA leading a reader to the separate set of laws, making Civil Code §§ 1598 and 1599 for a licensing scheme in the Labor Code would be the epitome of unconstitutionally vague, no ordinary person would comprehend such. ‘The District Court was to follow State Supreme Court holdings, and Marathon made it clear the Act had no penalty provision. Appellants have also added a claim within their original complaint filings that the statutes the CLC cites in finding violations of law, CA Labor Code §§ 1700.4 (a) and 1700.5, are unconstitutional facially and as applied. IV. Labor Commission Action — TAC-52862 Appellants filed a response to the Labor Commission petition on August 31, 2022, asking the administrative agency to declare that as the CA Legislature had never assigned a remedy for unlicensed procurement, procurement is an unregulated activity and thus the administrative agency has no authority to hear the matter. Appellants pointed out how the four State Supreme Court holdings that Buchwald v. Superior Court, 254 Cal App. 2d 347 (1967), the foundational case that all TAA cases had relied upon to void found violators’ contractual rights — the aforementioned Wood v. Kreps, along with Smith v. Bach, 183 Cal. 259, 262 (1920); Severance v. Knight- Counihan, 29 Cal. 2d 561, 568 (1947); Loving & Evans v. Blick, 33 Cal. 24 603, 608-09 (1949) each hold in different ways: that without both a statute having a prescribed penalty and notice of what activity is regulated, there is no unlawfulness and thus, no penalties can Ibe imposed as there is no colorable claim. The brief included other holdings supporting that the court cannot penalize without a penalty provision, including New Jersey Supreme Court’s admonishment: “Where a statute 4 (Gu APPELLANTS” SUMMARY DESCRIPTION OF ACTION IN ADVANCE OF CASE MANAGEMENT CONFERENCEfails to provide a penalty it has been uniformly held that it is beyond the power of the court {to prescribe a penalty.” State v. Fair Lawn Service Center, (N.J. 1956) 120 A.2d 233, 236, The CLC did not acknowledge Appellants’ filing On December 8, 2022, Appellants submitted a Motion for Directed Verdict to the CLC, based on how Wood and the other relevant CA Supreme Court cases hold that: 1. Licensing schemes must provide clear notice of both what is prohibited and of the penalty attached to ignoring that prohibition, or the contractual rights of the alleged wrongdoer must be upheld; and 2. The CLC and all administrative agencies are expressly barred from creating remedies the legislature has withheld. Respondent did not submit a reply to the Motion for Directed Verdict. On December 19, 2022, Hearing Officer Casey Raymond issued an Order denying their Motion, without commenting on the merits outlined above. 'V. ‘The Labor Commission Hearing and Final Determination, The oral hearing was held on February 15, 2023. Beforehand Appellants were clear: they had sought to maximize the quantity and quality of their client’s career opportunities, were unlicensed, and there was no law they violated. The Respondent, rather than agreeing to Appellants” stipulating to having procured, testified to and brought in a witness to testify Appellants procured. Respondent also testified to obtaining work and hiding employment/withholding those monies. Appellants relied completely on the fact that there was no colorable claim for the CLC to consider. While procuring employment is the first of three activities that define a talent agent (see CA Labor Code § 1700.4 (a)), there is no statute saying that any of those activities are reserved for licensees, nor is there any prescribed remedy. The CLC final determination found that Appellants had violated the Act, based on the TAA having a penalty provision: the two severability statutes in a wholly different set lof laws. 5 {G3 APPELLANTS" SUMMARY DESCRIPTION OF ACTION IN ADVANCE OF CASE MANAGEMENT CONFERENCEVE. Pr wing Forward This appeal is needed because as stated in Marathon (at Pgs. 991, 992 and 995), the ‘Talent Agencies Act has no penalty provision; and as stated in Dyna-Med, “Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but its their obligation to strike down such regulations.” Appellants believe the Labor Commission continues to perpetuate this extrajudicial [behavior by unconstitutionally denying personal managers and other unlicensed talent representatives the lawful benefit of their labors. This has been perpetuated for some 55 years, but this precedence is no excuse for choosing instead to wrongfully compromise lanother generation acting lawfully. Appellants will be ready to file their brief within fourteen days of the Case Management Conference and ask the Court to set a date for the oral hearing at its first time- accepted convenience. Respectflly submitted, iane Pardoe, in Pro Per Sarah Pardoe, in Pro Per DATED: August 24, 2023 6 \GY APPELLANTS" SUMMARY DESCRIPTION OF ACTION IN ADVANCE OF CASE MANAGEMENT CONFERENCEDocument 15 16SSUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Central District, Stanley Mosk Courthouse, Department 12 23STCP00683 September 12, 2023 DIANE PARDOE, et al. vs JUDE SALAZAR 9:00 AM Judge: Honorable Barbara A. Meiers ~ CSR: None Judicial Assistant: G. Vela ERM: None Courtroom Assistant: L. Rodriguez Deputy Sheriff: None RR APPEARANCES: For Plaintiff(s): Diane Pardoe (Self Represented) via LACourtConnect; Sarah Pardoe (Self Represented) via LACourtConnect, For Respondent(s): Jude Salazar (Self-Represented) via LACourtConnect. LER SEeeeeeeeemeeeeeeee NATURE OF PROCEEDINGS: Case Management Conference ‘The matter is called for hearing with related cases 23STCP00683 and 228TLC04635, ‘The Court and counsel confer regarding the status of the case. After conferring with counsel, the Court rules as follows: A court trial in case 23STCP00683 is set for November 09, 2023 at 9:30 AM in Department 12. A Final Status Conference is set for November 1, 2023 at 9:00 AM in Department 12 any trial briefs e.t.c. are due at that time. The question of service on the Labor Board is under submission, but if such service is ordered, the Pardoe appellants must undertake it forthwith, meaning as soon as possible, and include with service of the appeal papers, a notice of this ruling. As to the 22STLC04635 case, a Case Management Conference is set for January 2, 2024 at 9:00 AM in Department 12. The clerk is to give notice. Certificate of Mailing is attached. ‘Minute Order Page 1 of I leeDocument 16 4?Diane Pardoe/Sarah Pardoe 312. N. Kenwood St. Apt. A Burbank, CA 91505 323.363.3803 Phone [email protected] sarah@iristalentmanagement,com ‘Acting Pro Per SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT (STANLEY MOSK COURTHOUSE) Case No. 23STCP00683 Filed: March 2, 2023 DIANE PARDOE and Assigned: Hon, Barbara A. Meiers SARAH PARDOE, Individuals, Department 12 Appellants, APPELLANTS’ EX PARTE APPLICATION a FOR CLARIFICATION OF PROCEDURE ' REGARDING THE APPEAL OF LABOR JUDE SALAZAR, an Individual, COMMISSIONER’S DETERMINATION Respondent. Ex Parte Hearing: Date: September 20, 2023 Time: 8:30 AM. Dept. 12 TO: YOUR HONOR AND RESPONDENT IN PRO PER PLEASE TAKE NOTICE that on September 20, 2023, at 8:30 a.m. in Department 12 of| the Superior Court of the State of California for the County of Los Angeles, Stanley Mosk Courthouse, Appellants Diane Pardoe and Sarah Pardoe! (“Appellants”) will move ex parte for clarification as to the procedure regarding this appeal of the California Labor * Diane Pardoe and Sarah Pardoe are Plaintiffs in the original Breach of Contract Action (22STLC04635, currently stayed), Respondents in the California Labor Commission Talent Agencies Act Controversy (TAC-52862), and. Appellants in this appeal of that controversy. Ms. Salazar is the Defendant in 22STI.C04635, Petitioner in TAC-52862, Jand now Respondent in this appeal 1 APPELLANTS" EX PARTE APPLICATION FOR CLARIFICATION (GeCommissioner's Final Determination. This ex parte application will be based on this Notice of Motion, the Memorandum of Points and Authorities, the Declaration of Appellants served and filed concurrently, the records and files of this Court, and such evidence as may be presented at the hearing, ‘This ex parte application is made on the following grounds: The September 12, 2023 Case Management Conference left ambiguity regarding: 1) who is the answering party to the Appellants’ appeal, whether Respondent or the California Labor Commissioner (“Commissioner”), and 2) what submissions are appropriate. In response to Appellants’ original Breach of Contract Action (22STLC04635), Respondent filed a Petition to Determine Controversy, bringing the Appellants before the |Catifornia Labor Commission (“CLC”). Respondent led the CLC hearing in February 2023 against the Appellants. The CLC acted as adjudicator. Thus, Appellants are unclear as to why they would be expected to present the trial in this case. While the parties are required to serve the Commissioner along with the opposing party on all submitted documentation, as detailed in the below memorandum, relieving Respondent from having to present/respond and defend her position would be an anomaly from previous such actions and proceedings. Relatedly, Appellants proffer that rather than there be a trial with single pre-trial briefs submitted only days beforehand, the Court should align the upcoming submission process Jwith the appeal process of California Rules of Court Rule 8.360, which is also used in the Appellate Division of the Superior Court (Rule 9.6): an opening brief, an answer brief submitted on or before thirty days after the opening brief is submitted, and a reply brief submitted within twenty days of delivery of the answer brief. Standard briefing is particularly appropriate in this appeal. Appellants stipulate that they were unlicensed and procured employment opportunities for Respondent, and the Parties agree to the amount of commissions paid. The remaining question of fact ~ how much commission Respondent has withheld — is only relevant should the breach of contract case move forward. Appellants’ appeal is based on legal arguments that the CLC’s 2 APPELLANTS" EX PARTE APPLICATION FOR CLARIFICATION erenforcement is extrajudicial and unconstitutional because there are no statutes that align /with the current application. These important issues should be articulated through briefing. Appellants gave written notice of this Ex Parte by email to Respondent on September 18, 2023, at 12 p.m., indicating that the application would be heard on September 20, 2023, at 8:30 a.m. in the above-captioned court located at 111 N. Hill St., Los Angeles, CA 90012. In the email, Appellants asked whether Respondent opposed the application, As of the time of submission of this Application for filing, Appellants have not lyet heard back from Respondent. Attached as Exhibit A is a true and correct copy of this email. According to documents filed in this action, Respondent’s name and contact |information are: Jude Salazar 3425 Motor Ave, Apt 326 Los Angeles, CA 90034 P: 562.294.1810 E-Mail: [email protected] We declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, Executed on this 18th day of September, 2023, at Los Angeles, California, DIANE PARDOE SARAH PARDOE In Pro Per In Pro Per 3 APPELLANTS’ EX PARTE APPLICATION FOR CLARIFICATION {10awa wD MEMORANDUM OF POINTS AND AUTHORITIES 1. Introduction & Background CA Labor Code § 1700.44 (a) makes it clear that the moving and responding parties of la CLC dispute remain the moving and responding parties of any appeal resulting from the administrative agency’s ruling: “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, subject to an appeal within 10 days after determination, to the superior court where the same shall be heard de novo.” ‘The CLC can, as this is an appeal, submit an amicus brief, as it has done multiple times over the last 70 years. Tl. Argument a, Clarification Is Needed As the Legislature codified in § 1700.44 (a), it is appropriate to clarify that it is the Respondent’s responsibility to, as she did at the CLC, prosecute her arguments and forward rationale to moot Appellants’ arguments anew. There is nothing in the Talent Agencies Act (“TAA”) or the corresponding Code of Regulations, Title 8, Chapter 6, Subchapter 3, Article 1 detailing the TAA’s general rules and regulations, or the CA Code of Civil Procedure or the CA Rules of Court that outlines one definitive direction on how superior court appeals of a TAA ruling are to be conducted. The question of whether the appeal should be a trial or a hearing based on the submission of appeal briefs then becomes discretionary. Appellants believe a hearing based on the parties’ briefing is more appropriate. There jare no relevant disputes of fact based on the current enforcement of the Act. The Commissioner prosecutes the Act by voiding the contractual rights of unlicensed persons {found to have procured employment opportunities for an artist. Appellants have stipulated both at the CLC and again here that they have never obtained a talent agency license and are not able to, and that they work to maximize the quality and quantity of their artist clients” career opportunities, including procuring employment when it is appropriate. 4 APPELLANTS’ EX PARTE APPLICATION FOR CLARIFICATION cyAppellants argue, and their briefs will show, that they did not violate the TAA because licensing scheme has neither ring the procurement of employment of icensees/bars unlicen: s from procuring, n rovision givit |the administrative agency authority to void or in any way affect an unlicensed procurer’s contractual rights.” b. Ex Parte Relief Is Warranted The Court has set a trial in this case for November 9, 2023, but without clarification of how the Court intends to proceed, all parties are confused how best to prepare. Even if Appellants had sought clarification through a noticed motion the very next court day after {their case management conference on September 12, 2023, that motion could not have been. heard until weeks after November 9, 2023. Therefore, ex parte relief is necessary. IW. Conclusion Appellants recognize that if the Court affirms their position, it will significantly change /how the TAA is enforced. As such, Appellants believe it is essential they fully brief these legal and constitutional issues and Respondent has the opportunity to fully forward any and all counterarguments that might moot Appellants’ claims, providing the Court a complete picture of both sides of the issues so a ruling can be made that, if needed, prepares this matter for further appeal. ‘Therefore, it is appropriate the Court clarify if the Parties can proceed in the manner aligned with standard appeals, and whether the November 9, 2023 trial will instead be changed to an oral hearing based on submitted briefs at a later date, for a determination as to whether Appellants violated the Talent Agencies Act, or as held by the United States Supreme Court, violations of Jaw are “made up of two parts, forbidden conduct and a [prescribed penalty. The former without the latter is no [violation].” U.S. v Evans, 333. US. 483, 485-586 (1948). See Marathon v. Blasi, 42.Cal. 4th 974 (2008) at 991, 992, 996; see Wood v. Krepps, 168 Cal. 382 (1914), which holds (at Pg. 386) that adjudicators are to uphold a violators contmctual rights when @ licensing scheme has no provision indicating that filing to get licensed invalidates or in any way affects anyone's right to contract; see Dyna |Med Inc. ». Fair Empl. & Housing Comm, 43 Cal. 3d 1385 (1987), which (at Pg. 1388) bars administrative agencies from “creat{ing} a remedy thatthe Legislature has withheld,” and obliges cours to “void,” to “strike down” any regulation that “alter(s] or amends] the statute or enlarges} or impair( its scope.” APPELLANTS’ EX PARTE APPLICATION FOR CLARIFICATION Tkwa wn ee aa 10 it 12 B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Dated: September 18, 2023 DIANE PARDOE In Pro Per SARAH PARDOE, In Pro Per 6 APPELLANTS’ EX PARTE APPLICATION FOR CLARIFICATION 3DECLARATION OF DIANE PARDOE & SARAH PARDOE We, Diane Pardoe and Sarah Pardoe, are the Appellants in this action. We have personal knowledge of the facts set forth herein. This declaration is in support of Appellants’ ex parte application requesting clarification as to the procedure of this appeal of the California Labor Commissioner’s Final Determination. We gave written notice of this Ex Parte by email to Respondent on September 18, 2023, at 12 p.m., indicating that the application would be heard on September 20, 2023, at 8:30 am, in the above-captioned court located at 111 N. Hill St, Los Angeles, CA 90012. In the email, we asked whether Respondent opposed the application. As of the time of submission of this Application for filing, we have not yet heard back from Respondent. |Attached as Exhibit A is a true and correct copy of this email. ‘We declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 18th day of September, 2023, at Los Angeles, California, DIANE PARDOE SARAH PARDOE In Pro Per In Pro Per 7 APPELLANTS’ EX PARTE APPLICATION FOR CLARIFICATION wtDocument 17 wsSUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Central District, Stanley Mosk Courthouse, Department 12 23STCPO0683 September 20, 2023 DIANE PARDOE, et al. vs JUDE SALAZAR 830 AM Indge: Honorable Barbara A. Meiers CSR: None Judicial Assistant: G. Vela ERM: None Courtroom Assistant: L. Rodriguez, Deputy Sheriff: None APPEARANCES: For Petitioner(s): Diane Pardoe (SelfRepresented) via LACourtConnect; Sarah Pardoe (Self- Represented) via LACourtConnect For Respondent(s): Jude Salazar (Self-Represented) via LACourtConnect NATURE OF PROCEEDINGS: Hearing on Ex Parte Application for Clarification ‘The matter is called for hearing. After reading the moving documents in support of the above-captioned Ex Parte Application, the Court rules as indicated below: ‘The Appellants’ Ex Parte Motion is granted in that itis explained to the Pardoes and Ms. Salazar that they have a “trial date” of November 9, 2023 as previously set. They can file a trial brief beforchand, and, most importantly, they must, at least 5 calendar days before, submit copies of whatever they filed with the Labor Board. Any trial briefs should also be provided to the Court by then, all by means of courtesy copies. The Labor Commissioner will not, (the Court assumes) be participating, though the appellants must give notice to the Board (presumably to the representative or representatives) who issued the ruling in question. Should the Board wish to participate, the Court assumes the Board will notify the Court and parties along with points and authorities as to any claimed right of participation before the “trial.” The appellants are to give notice of this ruling to the Board. The parties now waive the Final Status Conference based on a stipulation that they will be presenting only those exhibits and witnesses that were used in the earlier Labor Board proceedings On the Court's own motion, the Final Status Conference scheduled for 11/01/2023 is advanced to this date and vacated. The clerk is to give notice. Certificate of Mailing is attached Minute Order Page | of 1 ueDocument I8 1mCer awnen 10 uw 12 2B 14 15 16 7 18 19 20 2 22 23, as 26 27 28 ‘Diane Pardoe/Sarah Pardoe 312.N. Kenwood St. Apt. A Bumbank, CA 91505 DIANE PARDOE and SARAH PARDOE, Individuals, Plaintiffs JUDE SALAZAR, an Individual, Defendant Electronically FILED by Supertor Court of Calltornia, Cotinty of Los Angeles 10/11/2023 9:25 AM David W. Slayton, Executive OfficeriClerk of Court, By V. Sino-Cruz, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT (STANLEY MOSK COURTHOUSE) Case No. 23STCP00683 Hon. Barbara A, Meiers NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES [FILED CONCURRENTLY WITH EPARATE STATEMENT OF UNDISPUTED FACT; DECLARATION OF DIANE AND SARAH PARDOE, AND TABLE OF CALIFORNIA AND FEDERAL AUTHORITIES) DATE: January 3, 2024 TIME: To:00 a. RES ID: 481394326018 NOTICE OF MOTIONMOTION FOR SUNMARY JUDGMENT OF LABOR COMMISSION RULINGCer Aanawn 10 MW 12 13 “4 1S 16 17 18 19 20 a 22 24 25 26 27 28 ‘TO THE HONORABLE COURT AND DEFENDANT, PLEASE TAKE NOTICE that, pursuant to §437c of the Califomia Code of Civil Procedure, on January 3, 2024 at 10:00 a.m. or as soon thereafter as the matter can be heard ‘in Department 12 of the above-entitled Court, Plaintiffs Diane Pardoe and Sarah Pardoe (CPardoes”) will, and hereby does, move for an order granting summary judgment Jovertuming the California Labor Commissioner's determination and in doing so dismiss the affirmative defense of Defendant Jude Salazar in invoking the Talent Agencies Act (“TAA”, }“Act”) against the claims set forth in Pardoes' complaint in related case 22STLC04635. Specifically, Plaintiffs seeks a judgment as to the following claims: Issue No. 1: There is no dispute between the Parties of any material fact regarding defendants’ invocation of the Talent Agencies Act as an affirmative defense to Plaintiffs? claims ~ Plaintiffs admit they are unlicensed and procured employment for the Defendant Artist — and as this Motion shows, there is no law foreclosing the activity of unlicensed [persons procuring employment for artists. Thus, the finding of the Labor Commissioner (‘CLC”, “Commissioner”) that Plaintiffs, who are unlicensed talent representatives, acted unlawfully and thus forfeited their right to contract, was incorrect must be overturned. Issue No. 2: As the Legislature never codified either a provision reserving procurement for licensees or a provision giving adjudicators the right to void or otherwise impair an unlicensed person’s contractual rights, the voidance of Plaintiffs’ contract is unconstitutional /and must be remedied with a ruling for Plaintiffs. The motion for summary judgment will be based upon this Notice, the accompanying Memorandum of Points and Authorities, the Separate Statement of Undisputed Facts, the Declaration of Plaintiffs, the pleadings and papers on file in this action, and upon the argument at the hearing, Respectfully Submitted on October 11, 2023, Bie ound Adee? Diane Pardoe Sarah Pardoe Plaintiff Plaintiff | "NOTICE OF MOTION MOTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING 1749eer auawn 10 cer 12 1B 14 1s 16 7 18 19 20 a 23 25 26 27 28 TABLE OF CONTENTS ‘TABLE OF AUTHORITIES I Lia VI. INTRODUCTION FACTUAL BACKGROUND “DE NOVO” STANDARD OF REVIEW HOW THE COMMISSIONER INTERPRETS PROCUREMENT LEGAL ARGUMENT A. If There Is No Penalty Provision, There Is No Violation of Law B. Buchwald, The Holding All Subsequent Cases Rely For The Authority to Void Violators’ Contractual Rights, ‘Was Wrongly Decided C. Personal Managers Cannot Fulfill Their Responsibilities To Their Clients Without Risking Compromise From Commissioner’s Enforcement D. No Penalties Can Be Imposed Without A Penalty Provision E. The Act, As Applied, Is Unconstitutional 4. There is Confusion As To Who Is Regulated: The CLC’s Application Violates The Equal Protection And Due Process Clauses Of The 14" Amendment 2. With Confusion As To What Is And Is Not Lawful, Application Violates The Equal Protection And Due Process Clauses Of The 14% Amendment And The Free Speech And Contract Clauses Of The 1" Amendment 3. With No Remedy For Unlicensed Procurement, The CLC’S Application Of The TAA Violates The Equal Protection And Due Process Clauses Of The 14" Amendment, The Contract Clause Of The 1 Amendment, And The 8" Amendment CONCLUSION ‘NOTICE OF MOTION MOTION FOR SUNMARY JUDGMENT OF LABOR COMMISSION R Pg.4 Pg.6 Pg.7 Pg.9 Pg.9 Pg.10 Pg. 11 Pg. 12 Pg. 15 Pg. 16 Pg.i7 Pg. 18 Pg. 20 Pg. 25 Pg.29Car auweurn 10 W 12 13 14 15 16 7 18, 19 20 2 22 23 25 26 27 28 TABLE OF AUTHORITIES FEDERAL CASES Austin v United States, 509 U.S. 602 (1993) Pg. 27 BMW of America v. Gore 517 US. $59, 574 (1995) Pg. 25 Conally v General Construction. Co., 269 U.S. 385 (1926) Pg. 25 Desertrain v. City of Los Angeles, 754 F.3d 1147, 1156 (2014) Pg. 23-25 |Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400 (1983) Pg, 26-27 FCC v, Fox Television Stations, Inc., 132 8. Ct. at 2317 (2012) Pg. 23 Grayned v. Rockford, 408 U.S. 104 (1972) Pg. 22-23 Lambert v, CA, 355 US, 225, 228 (1957) Pg. 16 Lanzetta v. New Jersey, 306 U.S. 451 (1939) Pg. 23 Palatine Ins. Co. v. Ewing et al, 92 Fed 111 98 (1899) Pg.27 Solem v. Helm, 463 U.S. 277 (1983) Pg. 29 United States v. Bajakajian, 524 U.8. 321, 336 (1998) Pg. 29 United States v. Evans, 333. U.S. 483 (1948) Pg. 6,11 Waters Pierce Oil Co. v Texas, 212 U.S. 86, 87 (1909) Pg. 29 STATE CASES | Auto Equity Sales, Inc. v. Superior Court, 51 Cal. 24.450 (1962) Pg. 14, 16 [Buchwald v. Katz, 8 Cal. 34.493 (1972) Pg.9 [Buchwald v Superior Court, 254 Cal. App. 2d 347 (1967) Pg. 12-17 Calwood Structures v. Herskovic 105 Cal.App.34 519, 522 (1980) Pg. 28 De Anza Santa Cruise Mobil Estates Homeowners Assn. ¥. De Anza Santa Cruz Mobile Estates, 94 Cal. App.4th 890 (2001) Pg. 25 |Dyna-Med Inc. v. Fair Empl, & Housing Comm., 43 Cal. 3d 1385 (1987) Pgs. 11, 15, 21-22 Felix v. Zlotoff, 90 Cal. App.34 155, 162 (1979) Pg. 28 |Hall v. Bureau of Employment Agencies, 64 Cal.App.3d 482 (1976) Pg. 22 Loving & Evans v. Blick, 33 Cal. 24 603 (1945) Pg. 13-17 ‘Marathon v. Blasi 42 Cal.4* 974, 988 (2008) Pg. 9, 12-14, 17-20, 25 | Moore v. CA Board of Accountancy (1992) 2 Cal. 4th 999 Pg. 18,20 |New Jersey v. Fair Lawn. Service Center, Inc., 120 A.2d 233 (NJ. 1956) Pg. 10 Norwood v. Judd 93 Cal. App.2d 276 (1949) Pg. 28 Park v. Deftones, 71 Cal.App.4th 1465 (1999) Pg. 12-13, Peralta v. Fair Empl. & Housing Comm., 52 Cal. 3d 40, 60 (1990) Pg. 11, 15,17 Radin v. Laurie, 120 Cal. App. 24778 (1953) Pg. 9-10 [Severance v. Knight- Counihan, 29 Cal. 2d 561 (1947) Pg. 13-17 Southfield v. Barrett, 13 Cal.App.3d 290 (1970) Pg. 28 [Smith v. Bach, 183 Cal. 259 (1920) Pg. 9, 13-17 RULNG + ‘NOTICE OF MOTIONIMO TION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING slee 10 ul 12 13 14 15 16 7 18 19 20 2t 23 25 26 27 28 Some v. Stevens, 26 Cal. 4th 42 (2001) Vitek Inc. v. Alvarado Ice Palace, Inc. 34 Cal.App.34 586 (1973) Wachs v. Curry, 13 Cal.App.4th 616 (1993) Waisbren v. Peppercorn Productions, 41 Cal.App.Ath 246 (1996) Western States v. Dept. of Health Services, 99 Cal.App.4th 999 (2002) Wolff. Fox, 68 Cal. App. 3d 280, 287 (1977) Wood v. Kreps, 168 Cal. 382 (1914) Yoo v. Robi, 126 Cal.App.4th 1089 (2005) STATE STATUTES ‘CA Business & Professions Code § 2052 CA Business & Professions Code § 2790 CA Business & Professions Code § 2861 CA Business & Professions Code § 2903 CA Business & Professions Code §§ 3760 (a) and (b) ICA Business & Professions Code § 4825.1 CA Business & Professions Code § 4935 CA Business & Professions Code §§ 5050 and 5051 CA Business & Professions Code § 5120 CA Business & Professions Code § 5460 CA Business & Professions Code § 6730 CA Business & Professions Code § 6980.10 CA Business & Professions Code §§ 7027 - 7058 CA Business & Professions Code § 7830 CA Business & Professions Code § 7872 CA Business & Professions Code § 8550 (a) CA Civil Code §§ 1598 and 1599 CA Code of Civil Procedure § 437¢ CA Labor Code § 98.2 CA Labor Code §§ 1700.4 (a) CA Labor Code § 1700.44 (a) CA Labor Code § 1700.44 (a) OTHER AUTHORITIES Due Process Limitations on Occupational Licensing, VA Law Review (Sept, 1973). [Report of the CA Entertainment Commission /Substantive Criminal Law § 1.2(d), (1986) "~~ NOTICE GF MOTION/OTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING Pg. 9, 13-14 Pg. 28 Pg. 12-13, Pg. 7-8 Pg. 18 Pg. 16 Pg. 13-15, 28 Pg. 12-13 Pg. 21 Pg. 26 Pg. 20 Pg. 19-20 Pg. 21 Pg. 21 Pg. 21 Pg. 21 Pg. 26 Pg. 20 Pg, 21 Pg. 21 Pg. 19, 21, 26 Pg. 21 Pg. 20 Pg. 21 Pg. 10 Pg.3 Pg.3 Pg. 6, 19, 22, 25 Pg. 9 Pg. 23-24 Pg. 6,17 Pg. 22 Pg. 6,11 (SeCaer awnrern 10 ul 12 13 14 15 16 7 18 19 20 21 8 25 26 27 28 I, INTRODUCTION This is an appeal of a determination of the California Labor Commission (“CLC”), which found the Plaintiffs violated the Talent Agencies Act (“Act,” “TAA”) by procuring /employment opportunities for the Defendant/Artist. As this brief details, this ruling cannot be rightly affirmed. For seven decades, the CA [Labor Commissioner (“Commissioner”) has enforced the TAA as if it statutorily reserves the procurement of employment for artists, and the Act has codified a remedy authorizing the voiding of the found violator’s contractual rights. There is neither. ‘The enforcement is incorrect, extrajudicial and unconstitutional. For a licensing scheme to pass the bar of constitutionality, there must be clear notice of: (1) who is subject to the ‘enacted regulation, (2) what conduct is being regulated, and, (3) what are the consequences found violators of the statute face. (See Due Process Limitations on Occupational Licensing, Virginia Law Review (Sept. 1973), Vol. 59, No. 6, pg. 1108.) ‘The Talent Agencies Act fails on all three. Ithas: (1) no statute expressly stating whether just talent agents or all those who represent talent are being regulated, (2) no statute expressly reserving procurement! for licensees or that prohibits unlicensed persons from procuring; and (3) no notice of a remedy should an unlicensed person be found to have procured employment for an artist without a license, ‘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].” Wayne R. LaFave, Substantive Criminal Law § 1.2(d), (1986), U.S. v Evans, 333. U.S. 483, 485-586 (1948). ‘As the TAA has no forbidden conduct or prescribed penalty, procuring without a license is lawful. Rather than voiding Plaintiffs’ contractual rights, it is the prohibition and remedy created the Commissioner rather than enacted by the legislature that must be extinguished. " Bvery future use of the term ‘procure’ means procuring work for an artistas defined in CA Lab. Code 1700.4 (a: actors, writers, directors, performers, and other creative persons rendering services on film, tv or on stage. ‘NOTICE OF MOTION/MOTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING (3a Ce 10 W 12 13 14 15 16 Ww 18 19 20 2 22 23 25 26 27 28 TL, FACTUAL BACKGROUND Plaintiffs are a mother and daughter management team, doing business as Iris Talent /Management.” Like all reputable talent representatives, their compensation is commission- [based, only paid when their clients are employed by a studio, network, production company or other talent buyer. Defendant is an actress. On June 26, 2021, Defendant signed Plaintiffs’ written management agreement to enter a contractual client/manager relationship. As memorialized in the contract, the commission structure was 10% on any entertainment income she or her talent agent initiated, and 15% on job opportunities Iris Talent Management initiated. While a client, Defendant withheld owed commissions fom Plaintiffs for multiple Jcommercials booked during the term of their contract. Following Defendant’s instructions, /her talent agent also withheld information and payment from Plaintiffs. On June 17, 2022, Defendant fired Plaintiffs via email, cc’ing attorney Max Sprecher. ‘The email also stated that no further monies would be paid, claiming the contract was “unenforceable,” and directing Plaintiffs to Sprecher if they wanted clarification, Plaintiffs reached out to Sprecher, who was clear: no further payments to the personal management firm would be made, Moreover, if Plaintifis made any further attempts to receive their owed compensation, Defendant would petition the Labor Commission, on the claim that the managers violated the TAA by unlawfully procuring employment opportunities without a valid talent agency license, and in doing so ask the CLC to have all monies previously remitted returned, Plaintiffs filed suit in Los Angeles Superior Court on July 14, 2022, a limited action Breach of Contract filing (22STLCO4635). As promised, Defendant filed a Petition to ‘Determine Controversy with the CLC on August 4, 2022, claiming Plaintiffs had violated the Talent Agencies Act, and relatedly moving to stay the Superior Court case until that action (this action) had been adjudicated. Plaintiffs filed an Amended Complaint, adding claims that the TAA on its face and how it is applied is unconstitutional. > This, and every future use of the term ‘manager’ means personal manager. esdedetesesbeebssnsusssssiatshennesnstustuseyatQot0b408808tsisHissstSteeteessenstaistastatetsOesORtesteisisit | "NOTICE OF MOTION MOTION FOR StIMMARY JUDGMENT OF LABOR COMMISSION RULING lega 10 u 12 B 14 15 16 7 18 19 21 23 24 25 26 27 Plaintiffs opposed and appealed Defendant's Motion to Stay, based on the argument that as the TAA had no penalty, there could be no colorable claim. Though the Superior Court is to ascertain whether there is a colorable claim before sending it to the CLC (see Styne v. ‘Stevens, 26 Cal. 4th 42, 59 (2001), a substitute judge ruled that issue was for the CLC to decide, On October 20, 2022, the case was stayed pending the matter being referred to the Labor Commissioner, After receiving an interlocutory Order from the CLC, Plaintiffs filed an appeal, pursuant to CA Labor Code § 98.2 and CA Code of Civil Procedure § 437¢, on the original Breach of ‘Contract case, which was received and accepted on December 29, 2022. Plaintiffs were then instructed by the Clerk's office to re-file, as these appeals must be classified as unlimited and assigned a new case number, department, and judge (23STCPO0010). Afier the CLC’s office issued an inordinately fast final determination on February 17, 2023, determining Plaintiffs procured unlawfully (as the administrative agency has been ruling for over 56 years), Plaintiffs filed (again as required by the Clerk's office) a third matter (this case, 23STCP00683), appealing that determination. Plaintiffs then chose to dismiss the interlocutory appeal (23STCPO00010) without prejudice, filing a Request for Dismissal on June 12, 2023, Defendant filed a Notice of Related Case on March 3, 2023. Plaintiffs followed up on the status of the ruling on the Notice of Related Case filings, and the cases were ruled as related on July 28, 2023, loreover, the facts relevant to a T, te are clear and undisputed: © Plaintiffs are personal managers. © Plaintiffs do not have a talent agency license. * Plaintiffs procured employment to help maximize the quality and quantity of Defendant’s employment opportunities. With these understandings, and as explained in fuller detail hereinunder, it is not the /Plantiffs” actions but the CLC’s enforcement of the TAA which has been illegal, and the ‘Commissioner’s ruling against Plaintifis must be reversed, "NOTICE OF MOTION A/OTION FOR SUMMARY JUDGMENT OF LABOR COMMISSIONRULING 8 (osSearxaurnun tt 12 13 14 15 16 7 18 19 20 au 22 23 24 25 26 27 28 TH. “DE NOVO” STANDARD OF REVIEW As stated in CA Labor Code section 1700.44 (a): “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, subject to an appeal within 10 days after determination, to the superior court where the same shall be heard de novo.” ‘Thus, Plaintiffs “are entitled to a complete new hearing—a complete new trial—in the superior court that is in no way a review of the prior proceeding.” Buchwald v. Katz, 8 Cal. 3d 493, 502 (1972) (discussing “de novo” review in the context of a TAA appeal). IV. HOW THE COMMISSIONER INTERPRETS PROCUREMENT While a de novo review assures Plaintiffs of a new hearing on the issues and lew, it does not in and of itself free them from the Commissioner's enforcement. As Styne v, Stevens (at 53) notes, an administrative agency’s “interpretation of a statute [it] is charged with enforcing, eserves substantial weight.” Styne Supra at p. 53 (2001). Substantial weight, but as Marathon v, Blasi 42 Cal.4% 974, 988 (2008) cautions, an agency's interpretation should not be blindly followed: “The Labor Commissioner's views are entitled to substantial weight if not clearly erroneous.” For some 70 years, beginning with an amicus brief the Commissioner submitted in ‘Charles Radin v, Piper Laurie, 120 Cal. App. 24778 (1953), the administrative agency has interpreted the Act as if the TAA reserves the exclusive right to procure employment ‘opportunities for artists to licensed talent agents; and as if the TAA has a penalty provision giving adjudicators the right to void all or part of a found violator’s right to contract. In instructing the Radin Court to extinguish the personal manager’s contractual rights, {the amicus states how, “It has been long held in this state that where a statute contains a penalty, that penalty is equivalent to an express prohibition, and a contract in violation thereof is void. Refusal by our courts to allow any recovery by unlicensed persons where licensing }was required is but one example of this general rule.” Smith v. Bach, 183 Cal. 259, 262 (1920), See Exhibit 1, Pg. 5 of CLC Amicus Brief in Radin v Laurie. Notably, the Commissioner's amicus does not say the Artists’ Manager’s Act (“AMA”) /has a penalty provision, which it does not. (For reference, the AMA was the antecedent title | NOTICE OF MOTIONAOTION FOR SUNMARY JUDGMENT OF LABOR COMMISSIONRULING 18¢Bear aunwn u 12 13 14 15 16 7 18 19 20 au 22 23 24 25 26 27 28 Jof the TAA, when talent agents were referred to as artists’ managers.) Nor does the |Commissioner expressly state the AMA had a penalty provision. Instead, the Amicus infers {the AMA has the needed prohibition and remedy provisions, instructing the Radin court to ‘Void the manager's contract because of enacted prohibitions and remedies found in the similar licensing schemes for booking agents and general employment agents, “The laws of this state [then listing the employment agent, artists’ managers’ and theatrical/booking agent licensing schemes] ... establish a clear intent on the part of the legislature to regulate closely activities lof such agents and managers.” ‘The Commissioner's amicus continues, “It has been long held in this state that where a statute contains a penalty, that penalty is equivalent to an express prohibition, and a contract in violation thereof is void. Refusal by our courts to allow any recovery by unlicensed persons ‘where licensing was required is but one example of this general rule.” Smith v. Bach, 183 Cal. 259, 262 (1920). Just as the AMA attached no penalty to unlicensed procurement in 19533 and there is no penalty associated with unlicensed procurement today, the Commissioner’s enforcement remains unchanged: Salazar v. Pardoe, TAC — 52862 (p. 6, fn 1) dismisses any relevance to the TAA having no penalty provision, continuing to operate asif the TAA has a remedy, citing “Civil Code remedies [§§1598 and 1599}....”. And as detailed below, the Civil Code statutes are not remedies, and even if they were, a Labor Code licensing scheme with remedies in the Civil Code is the epitome of unconstitutionally vague on its fact. ‘The question for the Court: is such enforcement is statutorily and constitutionally valid? V. LEGAL ARGUMENT The instant facts, as related to an alleged TAA violation, are undisputed. Plaintiffs s are junlicensed and unabashedly procured employment opportunities to help maximize the quality and quantity of their clients’ career opportunities. Plaintiffs argue, and hereinunder present a litany of controlling case law supporting their claims, that as the Legislature never enacted statutes prohibiting unlicensed persons from procuring, nor a penalty provision creating consequences for unlicensed procurers, Exhibit 2: Declaration of Jenny S, Lillge ofthe Legislative Intent Service, attesting to the Artists Managers Act having "no penalty provision with regard to unlicensed procurement in 1953." ‘NOTICE OF MOTION MOTION FOR SUNMARY JUDGMENT OF LABOR COMMASSION RULING 127Searauwaun u 12 13 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 junlicensed representatives procuring employment for an artist are not in violation of law, and the Commissioner's interpretation is unconstitutional on its face and as applied. ‘A. If A Statute Has No Penalty Provision, There Is No Violation Of Law ‘As noted above, violations of law are “made up of two parts, forbidden conduct and a [prescribed penalty. The former without the latter is no [violation].” Wayne R. LaFave, | Substantive Criminal Law § 1.2(@), (1986), U.S. v Evans, 333. U.S. 483, 485-586 (1948). As the United States Supreme Court (“USSC”) holds in Evans, it is immaterial whether there is incontrovertible evidence that a legislature wanted to punish a violator; assigning penalties is a legislative function that no adjudicator has the authority to usurp. At issue in Evans was a federal statute prohibiting the act of smuggling undocumented persons into the country and of 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. “It is better for Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it would make, That task it can do with precision. We could do no more than make speculation law.” Id at 495, r “An administrative agency cannot by its own regulations create a remedy which the Legislature has withheld. ‘Administrative regulations that alter or amend the statute ot 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. d& Housing Comm, 43 Cal. 34 1385,1388 (1987). While Dyna-Med limited its review and prohibition to creating a remedy to punitive Jdamages, Peralta v. Fair Empl. & Housing Comm., 52 Cal. 3d 40, 60 (1990) holds that }without statutory authority, administrative agencies are similarly barred from creating |compensatory remedies. ‘NOTICE OF MOTIONIMOTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING 188Car awan 10 rT 12 13 14 15 16 "7 18 19 20 a1 23 24 25 26 27 28 'B. Buchwald, The Holding All Subsequent Cases Rely For The Authority To Void Violators’ Contractual Rights, Was Wrongly Decided Buchwald v Superior Court, 254 Cal. App. 2d 347 (1967) is the only Court of Appeal or ‘State Supreme Court where the parties directly asked for and it specifically held adjudicators ‘have the authority to void contracts. Every subsequent published case that speaks to this issue while deciding other questions does so as dicta, accepting Buchwald. Wachs v. Curry, 13 Cal. App.4th 616, 626 (1993) was asked to decide whether the term ‘procurement’ was unconstitutionally vague. Wachs simply accepts Buchwald at p. 351 is not "so patently vague and so wholly devoid of objective meaning that it provides no standard at all.” Wachs at p. 629. That Court, though not asked, added that while the term procurement }was not vague on its face, “Whether the Act is unconstitutional as applied {] is a question for Janother day.” Waisbren v. Peppercorn Productions, 41 Cal.App.Ath 246, 252-253 (1996) was asked ‘whether and opined that a single instance of unlicensed procurement tainted the entire agreement, At p. 261, Waisbren simply accepts Buchwald at p. 351. Park v. Deftones, 71 Cal.App.Ath 1465, 1471-1472 (1999), was asked to determine and opined that even if there is no compensation involved, setting up live bookings for musicians is a violation of the Act; and to discern whether Waisbren or Wachs should be followed. At p. 1470 Park follows the reasoning of Waisbren, mirroring Waisbren’s accepting Buchwald, ‘The Styne court was asked and opined on two issues: when does the statute of limitations lend when using the TAA as a defense to a breach of contract action; and whether all TAA controversies must begin at the administrative agency. Styne simply accepts (at 51) the holding of Buchwald at 351, Yoo v. Robi, 126 Cal.App.4th 1089, 1104 (2005) the same court that had issued Wachs '». Curry, effectively repudiated its prior interpretation. At 1104, Yoo accepts the interpretations of Park and Waisbren in denying “all recovery”, and as stated above, Park and Waisbren simply accepts Buchwald at 351. Pardoe claims that Marathon holds that the TAA gives adjudicators the right to void contracts. It does not. Marathon was asked to decide and opined that (1), voidance is not always appropriate, and (2), personal managers are vulnerable to being found in violation of the Act, and it simply accepts the holdings of the other cases that Jean on Buchwald, NOTICE GF MOTIONMOTION FOR SUNIMARY JUDGMENT OF LABOR COMMISSION RULING #2 189wee rauneon 10 ul 12 B 14 15 16 7 18 19 20 an 24 25 2 28 ‘Marathon was not asked and did not opine on the relevance of the Act having no remedy. While Waisbren, Park, Styne, Wachs, Yoo and Marathon go back to the same Buchwald cite, “Since the clear object of the Act is to prevent improper persons from becoming artists [managers and to regulate such activity for the protection of the public, a contract between an ‘unlicensed artists' manager and an artist is void,” none of those cases incorporate the four citations Buchwald cites at 351 for its authority to void: Since the clear object of the Act is to prevent improper persons from becoming artists’ managers and to regulate such activity for the protection of the public, a contract between an unlicensed artists' manager and an artist is void,” See Wood v. Krepps, 168 Cal. 382, 386; Loving & Evans v. Blick, 33 Cal. 2d 603, 608-609); Contracts otherwise violative of the Act are void (see Severance v, Knight- Counihan, 29 Cal. 2d 561, 568; Smith ¥, Bach, 183 Cal, 259, 262.” ‘Smith holds, at p. 262: “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”. As the TAA has no such implication, Buchwald should have upheld the contract. As stated above, the Commissioner's amicus in Radin also cites Smith at p. 262: “It has [been long held in this state that where a statute contains a penalty, that penalty is equivalent to an express prohibition, and a contract in violation thereof is void. Refusal by our courts to allow any recovery by unlicensed persons where licensing was required is but one example of this general rule.” ‘As the AMA had and the TAA has no penalty for unlicensed procurement, there is no lequivalence to an express prohibition and thus the contract thereof should not be voided. In Wood, the 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.” Id. at p. 386. Had Buchwald properly followed Wood, as neither the AMA had nor the TAA has no [provision in the slightest indicating a failure to get a license should invalidate or in any way affect anyone’s right to contract, it would have held the court had no authority to invalidate or impair the manager's contractual rights. ‘NOTICE OF MOTIONMGTION FOR SUNMARY JUDGMENT OF LABOR COMMISSION RULING #3 190ee ranean 10 WW 12 1B 14 15 16 7 18 19 20 an 22 23, 25 26 27 28 Loving holds: “{I]t has been repeatedly declared in this state that ‘a contract /made contrary to the terms of a law designed for the protection of the public and prescribing /@ penalty for the violation thereof is illegal and void, and no action may be brought to enforce such contract,”” (Emphasis added.) Id. at 608. Had Buchwald properly followed Loving, as the TAA has no prescribed penalty, it would have held that unlicensed persons contracts are to be enforced. Per Severance: “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 actis void, and this, notwithstanding that the statute does not expressly pronounce it so, and it is, immaterial whether the thing forbidden is malum in se or merely malum prohibitum,” “Ifthe 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 $72. ‘As the TAA has neither a penalty provision nor expressly provides that if an unlicensed person is found to have procured their contractual rights are to be voided, had Buchwald properly followed Severance it would have upheld the manager’s contractual rights, not extinguished them, Buchwald was obliged to follow Wood, Smith, Loving and Severance. "The decisions of [the CA Supreme Court] are binding upon and must be followed by all the state courts of California, Decisions of every division of the District Courts of Appeal are binding upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate ‘court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction, It is not their function to attempt to overrule decisions of a higher court." Auto Equity Sales, Inc. v. Superior Court, 51 Cal. 24 450, 455 (1962) As Buchwald did not accept the law declared by the courts of superior jurisdiction, its holding is unsupportable. Likewise, this Court cannot choose to follow the Buchwald Court of Appeals decision over the Supreme Court rulings in Wood, Smith, Loving and Severance, along with Peralta and Dyna-Med, all of which oblige this Court to find Plaintiffs’ contractual rights are to be upheld. | ROTICE OF MOTION MOTION FOR SONO/ARY JUDGMENT OF LABOR COMMISSION RULING 4 taCoe wa awr urn 10 u 12 13 14 15 16 7 18 19 20 an 23 25 26 a7 28 Had Marathon, Styne, Waisbren, Yoo, Wachs or Park been asked and agreed to opine on the ability for a court to mete out penalties without a penalty provision, they would have found no high court authority allowing them to side with Buchwald: “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 v. Fair Lawn. Service Center, Inc. (N.J. 1956) 120.2233, 236. As such, their rulings most assuredly would have aligned with Wood, Smith, Loving and Severance, C. As the TAA Is Enforced, Managers Cannot Fulfill Their Responsibilities To ‘Their Clients And Not Risk Compromise From Commissioner’s Enforcement Here, the Commissioner's enforcement is erroneous, prejudicial, and unfollowable, Personal management isa wholly legal profession, but the CLC creates a Catch-22 that makes it impossible for a manager to do their job and stay inside the law. In show business, the artist serves as the business's chairman of the board and are the product being sold; synonymous to being both Steve Jobs and the iPhone. The manager is the chief executive officer, guiding the artist while simultaneously supervising all business aspects of their client’s career, The publicist is the vice-president of public relations, the transactional attorney the vice-president of business affairs, the theatrical, literary, live performance, voiceover, and live booking agents being the vice- presidents of sales, all of which report to the personal manager. ‘The Labor Commissioner finds that any procurement activity done by an unlicensed person outside of the safe harbor of working under the supervision ofa licensee is a violation of law. Putting aside the absurdity of prohibiting the chief executive office of an entity from the revenue creation of that business, it is the manager's job to decide which demo tapes, [photos and resume details are to be used, so they create the marketing materials for the agents ‘and publicists to uso. It is a manager’s responsibility to find an appropriate agent for the artist, so they hire the procurement team, The personal manager hires the publicist, so they engage /and oversee the marketing team. They hire and work with the transactional attorney, so they Jare hiring the negotiating team. All of which is part of procurement, making it literally impossible for a manager, no matter how hard they try to not procure, to not engage in [procurement on some level. ‘NOTICE OF MOTIONMOTION FOR SUMMARY JUDGMENT OF LABOR CONBAISSION RULING 141eer ananun 10 iW 12 13 14 15 16 7 18 19 20 2 22 25 26 27 28 ‘To make matters worse, the Labor Commission will not allow personal managers to obtain a license. When one tries to be licensed, they receive a letter rejecting their application, [because they in fact are not wanting to become talent agents. See Exhibit 3, Letter from DLSE Licensing and Registration Unit to personal manager David Belenzon: “Dear Mr. Belenzon, “The DLSE has no jurisdiction over managers. The management agreement is being retuned. Thank you.” Sincerely, J. McBride” The only way a personal manager can get a talent agency license is to change professions and become a talent agent. Managers who obtain a talent agency license can no longer share representation with talent agents, they must instead compete for the client’s loyalty. All the artist guilds —SAG-AFTRA, the Writers and Directors Guilds, Actors Equity (for Broadway performers) — each have bylaws limiting the cumulative agency compensation for television and film work to ton percent. Conventional wisdom is that managers avoid licensure so they can charge higher Jcommissions. It is a misnomer; the TAA places no compensation limit on agents, Managers |do not obtain licenses so they can work with partner with agents and still be compensated. D. No Penalties Can Be Imposed Without A Penalty Provision “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 assessed.” Wolffv. Fox, 68 Cal. App. 3d 280 (1977), Lambert v, CA, 355 U.S. 225 (1957). ‘As explained above, Buchwald is bad law, misinterpreting four State Supreme Court holdings that per, Auto Equity Sales, Buchwald was bound to follow. Every CLC ruling that has voided an unlicensed person’s contract, beginning with Buchwald extinguishing the contractual rights and $12,000,000 in otherwise-owed monies the Jefferson Airplane (Buchwald was Airplane founder Marty Balin’s legal sumame) owed ‘NOTICE OF NOON MOTION FOR SUNMARY JUDGMENT OF LABOR COMMISSION RULING 16 lwweer wraweun 10 nt 12 3 14 15 16 7 18 19 20 a1 22 23 24 25 26 27 28 its manager Matthew Katz, directly or indirectly cites the indefensible holding in Buchwald, making each of them bad law. ‘The CLC’s Pardoe determination dismisses Plaintiffs’ arguments re: the holdings of Peralta, Dyna-Med, Evans, ot Wolff without explanation. More confounding, it ignores the holdings of Wood, Smith, Loving and Severance. Rather than accept or explain their inapplicability, the Labor Commissioner continues an indefensible reliance on Buchwald (at 5, lines 23 ~ 27) for its authority to purge Plaintiffs” right to contract. ‘The determination dismisses the Act's lack of a penalty provision, noting that after Marathon (at p. 991) stated the Act had no remedy regarding procurement, Plaintiffs “ignore the subsequent paragraphs applying Civil Code remedies (§§ 1598 and 1599) for voiding the contract as a whole or severing the contract to contracts including unlawful procurement.” Salazar v. Pardoe, TAC - 52862 at p. 6, fa 1, ‘Those paragraphs were ignored because there was no reason to consider them; they are inapplicable if there is no unlawfulness. The statutes comprise the doctrine of severability, code sections only relevant after findings of illegality, to decide whether a contract should be ‘voided in part or full. Here, as noted earlier, “[v]iolations of law are ‘made up of two parts, forbidden conduct and a prescribed penalty. The former without the latter is no [violation], ”” E. The Act As Applied, Is Unconstitutional For the enforcement of an occupational licensing scheme to pass the bar of constitutionality, there must be clear notice of: (1) who is subject to the enacted regulation; (2) what is the conduct being regulated; and (3) what are the consequences found violators of the statute face. (See Due Process Limitations on Occupational Licensing, Virginia Law Review (Sept. 1973), Vol. 59, No. 6, pg. 1108.) The TAA fails on all three. 47 ‘NOTICE GF MOTIONMOTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING (3wera awa wn 1, There Is Confusion As To Who Is Regulated, The CLC’s Application Violates ‘The Equal Protection And Due Process Clauses Of The 14" Amendment Marathon found that personal managers are regulated because includes the term ‘manager’ is in CA Labor Code § 1700 (the statute that defines what ‘persons’ are regulated in the Act). ‘The term ‘manager’ though, is vague. In § 1700 does not reference one’s occupation, but, like the others in that list defining who is subject to TAA regulation — individual, company, society, firm, partnership, association, corporation, limited liability company, Jagents and employee — one’s position inside of a business. Further, it is unclear whether it references one’s occupation/title or position inside of a business. Does every manager need Ja license? Does Dodgers manager Dave Roberts need a talent agency license? Or the manager of the local GAP? Or property managers at apartment complexes? Marathon was not asked to and did not opine on any constitutional issues; however, just the fact the Marathon court found personal managers are regulated by a regulatory scheme of another occupation is an unconstitutional level of ambiguity. 2, The Ambiguity of the Redline Between Lawful And Unlawful Actions Makes ‘The CLC’s Application Violative Of The Equal Protection And Due Process Clauses Of The 14" Amendment, Along With The Free Speech And Contract ‘Clauses Of The 1 Amendment “In considering the consistency of [a] challenged regulation with the authorizing statute --- [Courts are to] limit review to a determination of whether the [administrative agency] reasonably interpreted its legislative mandate.” Western States v. Dept. of Health Services, 99 Cal.App-4th 999, 1007 (2002). “In construing a statute a court's objective is to ascertain and effectuate the underlying legislative intent.” Moore v. CA Board of Accountancy (1992) 2 Cal. 4th 999, 1012. Without an enacted statute expressly prohibiting unlicensed persons from procuring, it is impossible to conclude the Legislature reserved that activity for licensees. If there is no Ineed to expressly prohibit activities, every statute that prohibits activities, or reserves activities for licensees, is surplusage ~ and lead to nothing but arbitrary rulings. | NOTICE OF MOTIONOTION FOR SUMMARY TODGMENT OF LABOR COMMISSION RUENNG #8 (eyCow anua wn 10 u 12 B 14 15 16 7 18 19 21 23 24 25 26 27 28 Following the Commissioner’s interpretation, unlicensed procurement is considered a violation of CA Labor Code § 1700.4 (a). (See, 0.g, Marathon Supra at 991.) However, § 1700.4 (a) prohibits nothing; it only lists a talent agent’s defining activities: “procuring, promising, or attempting to procure employment or engagements for an artist ot artists,” along with directing and counseling ... and may in addition, counsel or direct artists in the development of their professional careers.” There is no statute expressly stating that only licensees can engage in one, two or all three of these defined occupations, and there is no further language even giving hint that any or all of these activities are reserved for licensees. Anactivity is regulated, reserved for licensees, only when a legislature enacts a provision stating that activity is expressly reserved for those with the requisite license; or conversely, there is a provision expressly memorializing the legislature’s intent to make it unlawful to engage in that action without the proper accreditation. That accreditation at times includes additional certification over and above the basic license (for example, see CA Business & Professions Code (“BPC”) §§ 7028 — 7029 of the State Contractors Act). California has dozens of licensing schemes. Most statutorily bar non-licensees from Jengaging in some or all activities of the regulated profession, some, like the Nursing and ‘Psychology Acts, only reserve the title of the regulated profession to licensees; anyone can engage in the defining activity(ies), Since, as written, the TAA mirrors the schemes that only regulate title, it would make more sense to ascertain and effectuate the underlying legislative intent by finding it a violation only to be saying one is licensed when not. An activity should not be, cannot be considered a regulated activity solely because it is listed as a defining action of a regulated profession or occupation. If that was so, only Licensees could procure, direct or counsel, as all three are listed as defining activities. If that was so, only licensed psychologists could lawfully use psychological principles, BPC § 2903 (a) of the State Psychologists Act defines the practice of psychology as, “rendering or offering to render ... any psychological service involving the application of psychological principles, methods, and procedures of understanding, predicting, and influencing behavior, such as principles pertaining to learning, perception, motivation, emotions, and interpersonal relationships. ‘NOTICE OF MOTIONIMOTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING qswear awer wn 10 i 12 13 14 15 16 7 18 19 20 21 23 24 25 26 27 28 Per BPC § 2903 (c), psychotherapy is using “psychological methods in a professional relationship to assist a person or persons to acquire greater human effectiveness or to modify feelings, conditions, attitudes, and behaviors that are emotionally, intellectually, or socially ineffectual or maladaptive.” Past that definition, the Psychologists Act has no statute expressly reserving these 8 to those with a psychologist’s license. Nor are there examples of Scientologists, ‘who regularly engage in constructing, administering, and interpreting tests of mental abilities, aptitudes, interests, ete. to affect others’ behavior ever being found in violation of § 2903 (c). Nor has any court found a pastor, priest or rabbi, a salesperson, life coach, teacher, trainer, doctor, physical or drug rehabilitation professional, an advertising executive, nurse or any other individual who use psychological principles to understand and influence the behavior of others in violation of that licensing scheme without the accused claiming to be a licensed [psychologist or had committed an unrelated infraction, California has several licensing schemes that do not bar non-licensees from engaging in the defined activities of the regulated profession, No state court has ever found anyone acted unlawfully just for maintaining and beautifying outdoor areas or examining the Earth’s materials, the defining activities of those professions, but both schemes do make it a ‘misdemeanor to claim to be a professional geologist (BPC 7872 (a)) or landscape architect (BPC 5460 (a) and (b)) without first satisfying the licensing requirements, The CA Vocational Nursing Act expressly states that non-licensees can engage in all the activities as a licensee, “provided that such person shall not in any way assume to practice as a licensed vocational nurse.” BPC § 2861. Anyone can not only engage in the defining activities of an accountant, but they also /have the right to advertise their doing so. Non-licensed persons “must be permitted to use the terms ‘accountant,’ ‘accounting,’ or ‘accounting services,’ if the use of those terms is further qualified by an explanation, disclaimer or warning stating that the advertiser is not licensed by the state, or that the services being offered do not require a state license, thereby eliminating any potential or likelihood of confusion re; those terms.” Moore v. CA Board of Accountancy (1992) 2 Cal. 4th 999, 1023. ‘NOTICE OF MOTIONIMOTION FOR SUNMARY JUDGMENT OF LABOR COMMISSION RUEING ~~? U%ewear ane un 10 uw 12 13 14 15 16 7 18, 19 20 a 22 23 24 25 26 27 28 BPC § 5050 of the CA Accountancy Act states, “no person shall engage in the practice Jof public accountancy in this state unless the person is the holder of a valid permit to practice public accountancy.” The legislature did choose to reserve some activities only for licensees. BPC § 5051 (2) to (c) are regulated activities that only licensees can engage in; § 5051 (f) to |@ are defining activities anyone can engage in, with the codicil that the person engaging in those activities “does not hold himself or herself out, solicit or advertise for clients using the certified public accountant or public accountant designation.” Most of California’ licensing schemes limit the defining activities of the regulated [professions to those who have qualified to obtain the requisite license. For instance, the CA. State Contractor's Act makes it unlawful to advertise (BPC § 7027.1 - §7027.4) or engage in the activity of contracting (BPC § 7028), It specifically defined each activity that is reserved for licensees (BPC 7026.3 ~ 7026.12, § 7055 — 7058), including those that require additional certification (BPC 7058.5 7058.7), and assigns individual remedies to each violation. BPC § 7027.1 (c), § 7027.3, § 7028 (a) — (h), § 7028.1 (a) and (b), California law expressly states that only licensed cytotechnologists can Jawfully examine cytological slides (BPC §1270 (a)); only licensed physicians may prescribe drags (BPC § 2052); only those with valid Califomia veterinary licenses can practice veterinary medicine (BPC § 4825.1), and only those with valid locksmith licenses can engage in the activities of a locksmith (BPC § 6980.10). Similarly, the occupational licensing schemes for dentists GPC § 1700), respiratory therapists, (BPC § 3760 (a) and (b)), pharmacists (BPC § 4051 (@), veterinarians (BPC § 4825), acupuncturists (BPC § 4935), professional engineers (BPC § 6730), geologists (BPC § 7830), and among others, structural pest control specialists (BPC § 8550 (a)) create clear demarcation lines between the activities anyone can engage in and those that require a license. The Talent Agencies Act has no like provision. Thus, be it simple common sense, or consideration of the statutory construction canons stare decisis, ejusdem generis and/or surplusage, procurement, just like directing and counselling, must be viewed as a defined activity of talent agenting that does not reserve such action for licensees. “A court must first look to the words of the statute themselves, giving to the language its usual, ordinary import; and according significance, if possible, to every word, phrase and ‘NOTICE OF MOTION MOTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING (V7Sem rxweuawn iW 12 3 14 15 16 7 18 19 an 22 23 24 26 27 28 sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided.” Dyna-Med Supra, 1379, 1386-1387. "Statutes, regardless of whether criminal or civil in nature, must be sufficiently clear as 10 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.34 482, 491 (1976). It is obvious the TAA is insufficiently unclear and the administrative agency's interpretation is arbitrary. Marathon (at p. 989) notes how the TAA “contains no definition [of procurement], and the Labor 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.” That kind of struggle is synonymous with unconstitutional vagueness. It is not just the judiciary that speaks to the Labor Commissioner being unsure of what is and is not lawful; the Cornmissioner has admitted of being similarly unsure. ‘The Commissioner served as chair of the CA Entertainment Commission (CEC); a body empowered to recommend to the Legislature how best to enforee the TAA. After twot years of examination, the Commissioner authored the “1986 Report of the CEC,” with conclusions and recommendations on how to improve the TAA. In it, the Commissioner explains how applying § 1700.4(@) is unconstitutionally vague: “There is, however, 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. ‘Procure employment’ is just such @ phrase ... [and it] has left the personal manager uncertain and highly apprehensive about the permissible parameters of their daily activity.” Report of the CA. Ent. Commission, Pg. 254 ‘The Commissioner’s words mirror those from a foundational case explaining what defines unconstitutional vagueness, Grayned v. Rockford, 408 U.S. 104, 108(1972): “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. ... ‘We (the Supreme Court) insist that laws give the person of + tps: www dir.ca.govidlse/TACICalifmnia®420Rntertainment9420Commission"420Repon%20-%4201985,paF ‘NOTICE OF MOTIONMOTION FOR SUNMARY JUDGMENT OF LABOR COMMISSION RULING (aswear anawn 10 un 12 13 14 15 16 17 18, 19 20 2 22 23 25 26 27 28 ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warming. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. ... Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’... . than if the boundaries of the forbidden areas were clearly marked." It is unthinkable the very person encharged to be the final word on what activities are ‘unlawful admits itis impossible to discern the bright line between lawful and illicit be fine }with compromising Plaintiffs and so many others with this “arbitrary and discriminatory enforcement?” Unthinkable, but also the reality; and an unconstitutional one at that, “Living under a rule of law entails various suppositions, one of which is that ‘[all 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 (2012). ‘A ‘statute camnot require the public to speculate as to its meaning while risking [] property in the process.’ See Lanzetia v. New Jersey, 306 U.S. 451, 453 (1939). In 2014, a 9" Cireuit Court invalidated a Los Angeles ordinance banning people from sleeping in cars, finding it void for vagueness because it failed “to draw a clear line between innocent and criminal conduct.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1156. ‘The Desertrain court listed a number of questions that 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.” id. at 1156, ‘As enforced, only talent agents are legally permitted to engage in the activity of procuring employment opportunities for their artist clients. And the most accepted responsibility for a personal manager is to find their clients the appropriate talent agents, Per Labor Code § 1700.44 (4), 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 to come aboard. As the agents are the procurers, is it lawful | NOTICE OF MOTION MOTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING = (99wear anneun for an unlicensed representative to place a client with a talent agency, in other words, hiring the artist’s sales team? ‘The Act, as written, leaves this unanswered. It is universally accepted that personal managers work with their clients to choose the photos, refine the resume, and edit the videos that first are used garner an agent’s interest and then used by the agent to pitch buyers. Is it lawful for a personal manager to create the sales materials, an essential part of procurement? ‘The Act, as enacted, leaves this unanswered. Is it lawful for personal managers to forward these materials to buyers? In a reply brief. to 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 enacted, leaves 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 a call or email? ‘The Act, as enacted, leaves this unanswered. 1s it unlawful if the recipient of the marketing materials proactively calls the unlicensed representative about the artist? The Act, as enacted, leaves this unanswered, Is it unlawful if @ buyer proactively contacts an unlicensed representative about the availability of a client even if no materials were sent? The Act, as enacted, leaves this unanswered. 1s it unlawful if an unlicensed representative receives @ 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 6AM 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’s 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 enacted, leaves this unanswered. NOTICE OF MOTIONIMOTION FOR SUMMARY JUDGMENT OF LABOR COMMISSION RULING 24 qowear a uanewn 10 n 12 13 14 15 16 17 18 19 20 a 22 23 24 25 26 27 28 ‘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 for more money than 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. Without answers to the litany of above questions, the Commissioner’s application ‘must be found unconstitutional. 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.” CA Labor [Code § 1700.4 (a) fails to reach that bar. “The due process clause [of] the fourteenth amendment requires a statute be declared void when it is so vague that “men of common intelligence must guess at its meaning and iffer as to its application...” Conally v Gen. Construction. Co., 269 U.S, 385, 391 (1926). The Legislature failed to create a bright line as to what activities are reserved for licensees, and Lab. Code §§ 1700.4 (a) and 1700.5 as applied thus unconstitutionally vague. 3. With No Remedy For Unticensed Procurement, The CLC’s Application Of The TAA Violates The Due Process Clauses Of The 14" Amendment, The Contract Clause Of The 1* Amendment, And The 8* Amendment “Elementary notions of faimess 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 State may impose.” BMW of America ¥. Gore 517 US. 559, 574 (1995), De Anza Santa Cruise Mobil Estates Homeowners Assn. ¥. De Anza Santa Cruz Mobile Estates, 94 Cal. App.4th 890, 904 (2001). While Marathon (at pp. 991, 992, 995) repeated stated the TAA has no remedy for illegal procurement,” the Labor Commissioner found the ‘remedies in the Civil Code’ for adjudicators to decide whether severance is applicable as acceptable authority for voiding parts or all of a found violator’s contract. ‘As stated earlier, these civil statutes are not penalty provisions but a doctrine to be incorporated to see if the assigned voidance should be mitigated or total. More important, ]were those statutes indeed remedies for unlicensed procurement, their placement in a wholly ~ NOTICE OF MGTIONMOTION FOR SUMMARY JUDGMENT OF LABOR CONDISSION RULING 25 20lx Car awa 10 u 12 13 4 15 16 7 18 19 20 an 23 25 26 27 28 different set of laws would be the very epitome of unconstitutionally vague: no ordinary [person could know to look in the Civil Code to find the remedy for a Labor Code licensing scheme that gives no written roadmap to look anywhere else. ‘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. {tis “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 Joan 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 or similar notice. Similarly, save the Talent Agencies Act, all the State’s licensing schemes that do not regulate activities have codified consequences for those who hold themselves out as Hicensees, For example, per BPC § 5120, non-licensees engaging in the regulated activities reserved only for those with public accountancy licenses are “guilty of a misdemeanor, punishable for not more than six months,” and/or a fine up to $1,000. Per BPC § 2790, it is a misdemeanor “punishable by imprisonment” for up to six months, and/or “a fine not exceeding” $2,000, for an unlicensed person to claim to be a psychologist. As the TAA has no statute reserving the procuring employment for artists to licensed talent agents, the statutory construction canons stare decisis, ejusdem generis and surplusage, makes it clear that applying a remedy — any remedy ~ is unconstitutional. Until and unless the legislature chooses by legislation to provide authority to penalize, {fine or extinguish a violator’s right to contract, no adjudicator has the authority to mete out any kind of a remedy, no less the draconian remedy of taking away one’s property rights; the rights for personal managers to enjoy the benefits of their labors. Article 1, Section 10 of the U.S. Constitution states, “No State shall enter into any ... ex [post facto Law, or Law impairing the Obligation of Contracts.” This prohibition can be ‘NOTICE OF MOTIONMOTION FOR SONMARY JODGHENT OF LABOR COMMISSION RULING youCm wa ueen 10 uW 12 13 14 15 16 17 18 19 20 a 23 24 25 26 27 28 waived in deference to a State’s inherent police power to safeguard the interests of its people. ‘When substantial impairments are challenged, the State agency that impairs contracts must show significant and legitimate public purpose behind the regulation and the adjustment of the contracting parties’ rights and responsibilities are of a character appropriate to the public purpose justifying the legislation's adoption. See Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400, 401 (1983). Here, there is no regulation, only enforcement of an unadopted, non-existent remedy. Energy Reserves laid out a three-part test for whether a law conforms to the Contract Clause First, the state regulation must not substantially impair a contractual relationship. The TAA, as applied by the CLC, does. Second, the State "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." There is no such purpose here, there is no significant win in prohibiting someone from helping another get employment in an industry that has 90%+ unemployment, Third, the law must be reasonable and appropriate for its intended purpose. 459 U.S. at 411- 413, There is no rationality between the enforcement and the Act’s legislative purpose, which again, never codified a prohibition or remedy for unlicensed procurement, and as such, the |Act as applied violates the Contract Clause. The forfeiture of contractual rights for a licensing infraction where the legislature ]withheld all remedies must be viewed as a violation of The Excessive Fines Clause of the Eighth Amendment. The Amendment, which is applicable whether the disgorgement is considered criminal or civil (see Austin v United States, 509 U.S. 602 (1993), ensures that Jexcessive fines, nor cruel and unusual punishments are not inflicted on its citizens, ‘The Amendment limits the Government's power to extract payments, whether in cash or in kind, as punishment for some offense. Forfeitures — payments in kind — are thus fines if they constitute punishment for an offense and the Government's powers are limited. “[Florfeitures are not favored in law, and courts will seek to find, if fairly possible, such a construction of the contracts of parties as will relieve them from the inequitable consequences arising therefrom.” Palatine Ins. Co. v. Ewing et al, 92 Fed 111 98 (1899). ‘The Commissioner's enforcement does just the opposite; inventing a construction that creates forfeitures never sanctioned or authorized by the Legislature. ‘NOTICE OF MOTIONMOTION FOR SUNMARY JUDGMENT OF LAHOR COMMASSION RULING 203Cm wr auawn 10 iW 12 13 4 15 16 7 18 19 a 22 23 24 25 26 27 28 California has set general rules regarding forfeiture: "the public importance of discouraging such prohibited transactions outweighs equitable considerations of possible injustice between the parties" Southfield v. Barrett, 13 Cal.App.3d 290, 294 (1970); contracts made in violation of a regulatory statute are void, Vitek Inc. v. Alvarado Ice Palace, Inc. 34 Cal.App.3d 586, 591 (1973) and normally, courts will not “lend their aid to the enforcement of an illegal agreement or one against public policy..."" Felix v. Ziotoff, 90 Cal. App.3d 155, 162 (1979); Norwood v, Judd 93 Cal. App.2d 276, 288-289(1949).. However, "the rule is not an inflexible one to be applied in its fullest rigor under any and all circumstances. A wide range of exceptions has been recognized." Southfield Supra at 294, For example, illegal contracts will be enforced to avoid unjust enrichment at the expense of plaintiff, Jd. However, the rule will not be applied where the penalties imposed by the [Legislature exclude by implication the additional penalty of holding the contract void. Vitek lat 591-592; Calwood Structures v. Herskovic, 105 Cal.App.3d 519, 522 (1980). Per Calwood, “The violation of law was one which did not involve serious ‘moral turpitude; the policy of protecting the public from the future consequences of the contract will not be furthered because the transaction has been completed; . . . Appellee [could] be unjustly enriched at the expense of plaintiff... and the penalty resulting from denial of relief [could] be isproportionately harsh in relation to the violation involved." Southfield v. Barrett, 13 Cal.App.34 290, 294 (1970), The 8th Amendment is applicable for civil forfeitures when the forfeiture is directly related to the commission of an infraction and utilized to deter and punish. The CA Supreme Court mirrors the rationale for the Contracts Clause, noting how the Court does not “favor the idea of giving one's goods to another without compensation.” Wood v, Krepps Supra at p. 387. While the disgorging of Plaintiffs’ contracts would result in the loss of no more than $20,000, many such voidings have been in the hundreds of thousands and in several instances /many millions of dollars. As such, even had there been prohibitions and a penalty provision, the penalty would be excessively harsh. The government gets all its requested taxes and [Defendant receive their requested benefit. Thus, there is no rational relationship between | "NOTICE OF MOTIONIMOTION FOR SUMMARY JUBGMENT OF LABOR COMMISSION RUENG 28 204Cera neon 10 W 12 13 14 15 16 7 18 19 20 24 22 23 25 26 27 28 {these disgorgements and the activity. But with no relationship between the remedy meted out and there being no such statute giving authority to such actions, it makes the voidance, or any penalty, infinitely excessive, In describing what constituted "gross disproportionality," the Supreme Court could not {find any guidance from the history of the Excessive Fines Clause and so relied on Cruel and Unusual Punishment Clause case law: We must therefore rely on other considerations in deriving a constitutional excessiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our ‘cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (“Reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments”), United States v. Bajakajian, 524 U.S. 321, 336 (1998) ‘A penalty or fine imposed can be... “...80 excessive a5 to constitute a taking of the defendant's property without due process of law. It is not contended in this, connection that the prohibition of the Bighth Amendment to the federal Constitution against excessive fines operates to control the legislation of the states. The fixing of punishment for crime orpenalties for unlawful acts against its laws is within the police power of the state. We can only interfere with such legislation and judicial action of the states enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of ‘property without due process of law.” Waters Pierce Oil Co. v Texas, 212 US. 86, 87 (1909) The Commissioner’ voidance violated the Eighth Amendment as the penalty assigned ]was outside the police power of the state, creating a grossly excessive deprivation of property. |F, The Demands Of Justice Require Overturning The Long-Standing Enforcement Plaintiffs recognize a ruling in their favor is significant, Butit will not overtum precedent the precedents are the United States Supreme Court and CA Supreme Court holdings — it ‘will silence the wrongful interpretation of the Labor Commissioner that led to the judicial lerror in the Buchwald Court of Appeal matter, | NOTICE GF MOTIONATOTION FOR SUNMARY JUDGMENT OF LABOR COMMISSION RULING 29 25eer ann en 10 ul 12 B 14 15 16 7 18 19 20 2 22 24 2s 26 27 28 Even if Buchwald was the governing precedent, adherence to.a precedent "should depend ‘upon its continuing practicality and the demands of justice." A Change In The Law When To ‘Set Aside Precedent, New York Law Joumal May 6, 2015, quoting People v. Ping, 76 N.Y. 2d 331, 337-338 (1990). Courts should not “slavishily follow an earlier decision ‘where it can Ibe shown that the law has been misapplied, or where the former determination is evidently contrary to reason.” Id, quoting Matier of Eckart, 39 N.Y. 24493, 499 (1976). In such cases, "where justice demands it," it is not only the right but "the duty of courts to re-examine the question." Jd, quoting Woods v, Lancet, 303 N.Y. 349, 354-355 (1951). Plaintiffs forward that itis the duty of courts to re-examine the CLC’s enforcement. V. CONCLUSION As the Legislature never enacted neither a prohibition nor remedy for unlicensed procurement, the TAA has been extrajudicially and unconstitutionally enforced. Along with following the litany of U.S, and CA Supreme Court holdings which oblige this Court to strike down the administrative regulations that wrongly enlarge its scope, allowing Plaintiffs to move forward with its Breach of Contract claims, the Plaintiffs — and all unlicensed representatives ~ should get the deserved declarative and injunctive relief that is needed, barring the Labor Commissioner from ever again infringing on contractual rights for procuring employment opportunities for an artist as the legislature never gave any adjudicator the authority to do so. Respectfully Submitted On October 11, 2023, | NOTCH OF MOTIGNTZOTION FOR SUNMARY JUDGMENT OF LABOR COMMISSION RULING —~30 ZoBear aunun n 12 13 14 15 16 7 18 19 20 an 22 23 24 25 26 27 28 SEPARATE STATEMENT OF FACTS IN SUPPORT OF PLAINTIFFS’ MOTION OF SUMMARY JUDGMENT UNDISPUTED MATERIAL FACT: SUPPORTING EVIDENCE: Claim of Defendant, affirmation by Plaintiffs. Plaintiffs own and operate a personal ‘Exhibit 2: Letter from CA Labor Commission ‘management firm and as such, do not and ‘cannot have a talent agency license, stating personal managers cannot get e talent agency license; also see IMDb listing: hntps:/pro,imb.com/company/co0806699/ Plaintiffs procure employment opportunities, which as the TAA has been enforced, is a violation of law. Claim of Defendant, affirmation by Plaintiffs. During their one-year relationship, Appellee remitted $8,713.34 in commissions earned while with Plaintiffs. Claim of Defendant, affirmation by Plaintiffs. As patties agree on the above three issues — Plaintiffs were not licensed, they procured, and what Defendant paid should Defendant win and CLC was to require repayment of the paid commissions — the only question left to decide is a matter of law; whether itis unlawful to procure without a license, Discussion on conference call with parties and CLC Hearing Officer Casey Raymond, ‘where Mr. Raymond made it clear those were the three material issues of TAA licensing controversy. ‘The Talent Agencies Act (TAA) has no statute expressly reserving procuring ‘employment for artists to licensees. ‘There is no language in the TAA (CA Labor Code 1700 et seg.) stating itis a violation of the chapter to procure w/o @ license, or ‘conversely saying that only persons with a talent agency license can procure. ‘The TAA (Lab, Code §§ 1700 - 1700.45) has no statute giving any notice of remedy, fine or consequence for unlicensed procurement, Per Marathon v. Blasi, 42 Cal.4® 974 (2008) At990: “The Actis silent — completely silent — on the subject of the proper remedy for illegal procurement.” At 991: “The Act provides no remedy for its violation. At 995: “The Legislature has not seen fit to specify the remedy for violations of the Act.” ‘NOTICE OF MOTIONIMOTION FOR SUMMARY JUDGMENT OF LABOR COMMAISSION RULING 3t 207Car auawrn 10 u 12 3 4 15 16 7 18 19 20 a 23 25 26 27 28 UNDISPUTED MATERIAL FACT: SUPPORTING EVIDENCE: Procuring employment for an artist without a talent ageney license is not a criminal act. Per 1700.44(b): “Notwithstanding any other provision of law to the contrary, failure of any person to obtain a license from the Labor Commissioner pursuant to this chapter shall not be considered a criminal act under any law of this state.”) With no prescribed penalty for procuring ‘employment for artists without a license, itis not a violation of law. “Violations of law are ‘made up of two parts, forbidden conduct end a prescribed penalty. The former without the latter is no [violation].’” Wayne R. LaFave, Substantive Criminal Law § 1.2(d), (1986), U.S. v Evans, 333, U.S. 483, 485-586 (1948). As there is no notice of penalty, prescribing a penalty, including disturbing a violator’s right to contract, violates due process. “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 assossments are made, before penalties are assessed.” Wolff. Fox, 68 Cal. App. 3d 280 (1977), citing Lambert x. California, 355 U.S, 225, 228 (1957) ‘The Labor Commission’s invention of the penalty is extra-judicial. “An administrative agency cannot by its own regulations create a remedy which the Legislature has withheld,” Dyna-Med Inc. v. Fair Empl. & Housing Comm., 43 Cal. 34 1385,1388 (1987). Adjudicators are obligated to strike down regulations that have not been enacted by the Legislature. “Administrative regulations that alter or amend the statute or enlarge or impair its soope are void and courts not only may, but it is their obligation to strike down such regulations.” Id ‘When a licensing scheme has no notice that engaging in the regulated activity without a license, adjudicators are to uphold alleged violators contractual rights. Wood v. Krepps, 168 Cal. 382 (1914) upheld an unlicensed locksmith’s contract because the licensing scheme had no “provision therein indicating in the slightest this failure was intended to affect in any degree the right of contract.” Pg. 386. OF MOTONAIGTION FOR SUMMARY JODGMENT OF LABOR COMMISSION RULING 32 208Ce wauneern 10 Ww 12 B 14 45 16 17 18 19 20 24 22 25 27 28 DECLARATION OF DIANE AND SARAH PARDOE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Submitted After Am Order By The CA Labor Commission ‘Department 12, Stanley Mosk Courthouse We, Diane Pardoe and Sarah Pardoe, declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct: 1, We are individuals living and working as personal managers in Los Angeles County. 2, We submit this declaration to explain how we leamed of all the facts, history and legal arguments submitted in our motion. 3, When faced with an ex-client refusing to pay owed compensation and our being told dy the ex-client’s attorney that if we continue to ask for these worked-for and deserved monies, we would face a Talent Agencies Act controversy, we decided to leam all we could to figure out the implications of the Act and did we in fact act unlawfully. 4, What we learned was that, beginning with a judicial error more than a half-century ago, the Talent Agencies Act has been enforced incorrectly and unconstitutionally. 5. As part of our research we found the writings of Rick Siegel, an expert on the history, enforcement and misinterpretation of the licensing scheme, including offering a lecture on these subjects that are certified for MCLE credits. He represented us at the Labor Commission as a non-attomey representative and we have incorporated his ‘papers and drafts into the papers we have submitted. |We declare under penalty of perjury under the laws of the State of California the foregoing is true and correct. By: Ane. By:__ odin Aadoer Diane Pardoe Sarah Pardoe Dated: 10/11/2023 Dated; 10/11/2023 ‘NOTICE OF MOTION MOTION FOR SUMMARY JODGHENT OF LABOR COMMISSION RULING 207