Appellant's Opening Brief: NCOPM v. Brown Et Al

Case No.
13-55545
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________________________________________________________
National Conference of Personal Managers, Inc.
Plaintiff-Appellant
vs.
Edmund G. Brown, Jr. et al
DefendantsAppellees
__________________________________________________________
Appeal from United States District Court, Southern District of California
District Court Case Number CV 12-09620
The Honorable Dean D. Pregerson, Judge, Presiding
__________________________________________________________
APPELLANTS OPENING BRIEF
__________________________________________________________
STEPHEN F. ROHDE (SBN 51446) RYAN H. FOWLER (SBN 227729)
ROHDE & VICTOROFF CHRISTOPHER B. GOOD (SBN 232722)
1880 Century Park East, Suite 411 FRANK W. FERGUSON, II (SBN 211694)
Los Angeles, CA 90067 FOWLER & GOOD LLP
Tel: (310) 277-1482 15303 Ventura Boulevard, 9
th
Floor
Fax: (310) 277-1485 Sherman Oaks, CA 91403
Tel: (818) 302-3480
Fax: (818) 279-2436

Attorneys for Appellant National Conference of Personal Managers, Inc.
Case: 13-55545 10/08/2013 ID: 8814615 DktEntry: 9-1 Page: 1 of 64
ii
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Appellant
is a Nevada based private not-for-profit corporation, with no subsidiaries or
affiliates that has issued shares to the public.

iii
TABLE OF CONTENTS
I. STATEMENT OF JURISDICTION ...................................................................... 1
II. STATEMENT OF ISSUES PRESENTED FOR REVIEW ................................. 2
III. STATEMENT OF THE CASE ............................................................................ 2
IV. PROCEDURAL HISTORY ................................................................................ 3
V. STATEMENT OF FACTS AND SUMMARY OF COMPLAINT ..................... 4
VI. SUMMARY OF ARGUMENT ........................................................................... 7
VII. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING
LEAVE TO AMEND................................................................................................. 9
VIII. STANDARD OF REVIEW ............................................................................12
IX. ARGUMENT .....................................................................................................13
A. THE DISTRICT COURT ERRED IN FINDING THE TAA IS NOT
UNCONSTITUTIONALLY VAGUE..................................................................13
1. The TAA Is Unclear As To What Activities It Regulates ..........................13
2. The TAA Lacks Clarity As To Who Is Regulated ......................................15
3 The Ambiguity of the TAA Has Resulted In Conflicting And Arbitrary
Determinations by the Commissioner ...............................................................20
4 The TAA As Applied Exceeds Commissioners Statutory Authority .........24
5. The Commissioner Selective Enforcement of the TAA Violates The Equal
Protection Clause Of The Fourteenth Amendment ...........................................26
B. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF HAS NOT
STATED A CLAIM FOR INVOLUNTARY SERVITUDE ...............................27


iv
C. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF DID NOT
STATE A CLAIM FOR VIOLATION OF THE COMMERCE CLAUSE .........30
D. THE DISTRICT COURT ERRED IN FINDING THE TAA REGULATES
CONDUCT AND NOT SPEECH ............................39
E. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF FAILED TO
STATE A CLAIM FOR A VIOLATION OF THE CONTRACT CLAUSE OF
THE CONSTITUTION ........................................................................................43
F. THE DISTRICT COURT ERRED BY NOT CONSIDERING
PLAINTIFFS COMPLAINT IN ITS ENTIRETY..............................................46
X. CONCLUSION .................................................................................................488


v
TABLE OF AUTHORITIES

SUPREME COURT CASES
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ................................................................13
Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104 (1991) ...18

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) .................................................32
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ................................................41
BMW of America v. Gore, 517 U.S. 559 (1995) ......................................................24
Board of Trustees v. Fox, 492 U.S. 469 (1989) .......................................................43
Central Hudson Gas & Electric Co. v. Public Service Commn.,
447 U.S. 557 (1980) ....................................................................................... 42, 43

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003) ...............................................31
City of Chicago v. Morales, 527 U.S. 41 (1999) .....................................................20
Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992) ......................................15
Costello v. United States, 365 U.S. 265 (1961) .......................................................38
Crutcher v. Commonwealth of Kentucky, 141 U.S. 47 (1891) ................................37
Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400 (1983) ...............44
Foman v. Davis, 371 U.S. 178 (1962) .....................................................................10
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) ..................................40
Gonzales v. Raich, 545 U.S. 1 (2005) ......................................................................31
Granholm v Heald, 544 U.S. 460 (2005) .................................................................36

vi
Grayned v City of Rockford, 408 U.S. 104 (1972) ..................................................19
H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949)....................................36
Halliburton Oil Well Cementing Co.v. Reily, 373 U.S. 64 (1963) ..........................36
Ibanez v. Florida Dept. of Business and Professional Regulation, 512, U.S. 136
(1994) ....................................................................................................................41

Interstate Circuit, Inc. v City of Dallas, 390 U.S. 676 (1968).................................16
Iselin v. United States, 270 U.S. 245 (1926)............................................................32
Kolender v. Lawson, 461 U.S. 352 (1983) ...............................................................20
Lambert v. California, 355 U.S. 225 (1957) ............................................................24
Lanzetta v. New Jersey, 306 U.S. 451 (1939) ..........................................................16
License Cases, 46 U.S. 504 (1847) ..........................................................................32
McCall v. People of The State of California, 136 U.S. 104 (1890) .........................37
Oneale v. Thornton, 10 U. S. (6 Cranch) 53, 68 (1810) ..........................................14
Oregon Waste Sys., Inc. v. Dept. of Envir. Quality of Oregon,
511 U.S. 93 (1994) ................................................................................................36

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ....................................................36
Robertson v. Baldwin, 165 US 275 (1897) ..............................................................28
Rubin v. United States, 449 U. S. 424 (1981) ..........................................................14
Smith v. Gougen, 415 U.S. 566 (1972) ....................................................................20
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308 (2007) ............. 9, 13, 46
U.S. v. Evans, 333 U.S. 483 (1948) 24

vii
United States v. Eaton, 144 U.S. 677 (1892) ...........................................................25
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) ...............................42
United States v. Evans, 333 U.S. 483 (1948) .................................................... 16, 24
United States v. Goldenberg, 168 U. S. 95 (1897) ..................................................14
United States v. Kozminski, 487 U.S. 931 (1988) ................................................7, 28
United States v. Lopez, 514 U.S. 549 (1995) ...........................................................30
United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989) .........................14
United States v. Schubert, 348 U.S. 222 (1955) ......................................................31
Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.
748 (1976) .40
FEDERAL CASES
Astaire v. Best Film, 116 F.3d 1297 (1997) .............................................................14
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 701 (9th Cir.1990) ....................11
Chang v. Chen, 80 F.3d 1293 (9th Cir.1996) ................................................... 11, 12
City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440 (9th Cir. 2011) ........10

DCD Programs, Ltd. v. Leighton, 833 F.2d 183 (9th Cir.1987) .............................10
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003).................10
Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997) ........................... 12, 13
Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1292
(9th Cir.1983) ........................................................................................................10

Krainski v. Nevada ex rel. Bd. of Regents of NV. System of Higher Educ., 616 F.3d
963 (9th Cir.2010) .................................................................................................11

viii

Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000) .........................................................11
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242 (5th Cir.1997) ..............................10
LSO, Ltd. v. Stroh, 205 F.3d 1146 (9th Cir. 2000) ..................................................13
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708 (9th Cir.2001) ...............10
Pacific Merchant Shipping Association v. Goldstene, 639 F.3d 1154 (9th Cir.
2011) .....................................................................................................................35

Palatine Ins. Co. v. Ewing et al, 92 Fed 111 98 (1899) ...........................................45
Schwartz v. Northern Life Ins. Co., 25 F.2d 555 (9th Cir. 1928) ............................37
Shwarz v. United States, 234 F.3d 428 (9th Cir. 2000) ...........................................13
Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ..........................................................12
U.S. v. Sutcliffe, 505 F.3d 944 (9th Circuit, 2007)...................................................31
United States v. Clayton, 108 F.3d 1114 (9th Cir. 1997)) .......................................31
United States v. Redwood City, 640 F.2d 963 (9th Cir. 1981) ................................12
Walling v. Peavy Wilson Lumber Co., 49 F. Supp. 846 (1943) ...............................16
Ward v. Maryland, 12 Wall. 418 (1871) ..................................................................36
Western Union Telegraph Company v. State of Kansas on the Relation of Coleman,
216 U.S. 1 (1910) ..................................................................................................37

Wicks v. Southern Pacific Co., 231 F. 2d 130 (9th Cir. 1956) ................................28


ix
STATE CASES
Barajas v City of Anaheim, 15 Cal.App. 4th 1808 (1993) .......................................25
Calwood Structures v. Herskovic, 105 Cal.App.3d 519 (1980) ..............................45
Dyna-Med, Inc. v. Fair Employment & Housing Comm., 43 Cal. 3d 1385 (1987) .25
Felix v. Zlotoff, 90 Cal.App.3d 155 (1979) ..............................................................45
Kugler v. Yocum, 69 Cal.2d 371 (1968) ..................................................................20
Marathon Entertainment v. Blasi, 42 Cal. 4th 974 (2008) ............... 5, 16, 20, 29, 42
Matthau v. Superior Court, 151 Cal. App. 4th 593 (2007) .....................................29
Morris v. Williams, 67 Cal 2d 733 (1967) ...............................................................25
Norwood v. Judd, 93 Cal.App.2d 276 (1949) ..........................................................45
Quintano v. Mercury Cas. Co., 11 Cal.4th 1049 (1995) .........................................14

Royal Co. Auctioneers, Inc. v. Coast Printing Equipment Co., 138 Cal.App.3d 868
(1987) ....................................................................................................................25

State Board of Education v. Honig, 13 Cal.App.4th 720 (1993) .............................20
Styne v. Stevens, 26 Cal. 4th 42 (2001) ....................................................................42
Southfield v. Barrett, 13 Cal.App.3d 290 (1970) .............................................. 44, 45
Vitek Inc. v. Alvarado Ice Palace, Inc., 34 Cal.App.3d 586 (1973) ........................45
Wachs v. Curry, 13 Cal.App. 4th 616 (1993) ..........................................................19
Wolff v. Fox, 68 Cal. App. 3d 280 (1977) ................................................................24
Wood v. Krepps, 168 Cal 382 (1914) ................................................................ 25, 45
Yoo v. Robi, 126 Cal. App.4th 1089 (2005) .............................................................38

x
STATUTES
28 U.S.C. 1291 ........................................................................................................... 1
28 U.S.C. 1331 ........................................................................................................... 1
28 U.S.C. 2201 .......................................................................................................1, 2
28 U.S.C. 2202 .......................................................................................................1, 2
42 U.S.C. 1983 .......................................................................................................1, 2
CA BPC 5000 et seq .............................................................................................16
CA BPC 2000 et seq ...........................................................................................16
CA BPC 2900 et seq ...........................................................................................16
CA BPC 4000 et seq ...........................................................................................16
CA BPC 5615 et seq ...........................................................................................16
CA BPC 6980 et seq ...........................................................................................16
CA BPC 7000 et seq ...........................................................................................16
CA BPC 7065.4 ........................................................................................................33
CA BPC 1200 et seq ............................................................................................16
CA Labor Code 1700 ..................................................................................... 16, 17
CA Labor Code 1700.10 .......................................................................................18
CA Labor Code 1700.12 (b) .................................................................................32
CA Labor Code 1700.15 .......................................................................................18
CA Labor Code 1700.19 (b) .................................................................................32

xi
CA Labor Code 1700.20 .......................................................................................32
CA Labor Code 1700.23 .......................................................................................18
CA Labor Code 1700.24 .......................................................................................18
CA Labor Code 1700.4(a) .......................................................................... 4, 13, 15
CA Labor Code 1700.41 .......................................................................................18
CA Labor Code 1700.44 (d) .................................................................................35
CA Labor Code 1700.44(b) ..................................................................................28
CA Labor Code 1700.5 .....................................................................................4, 15
CA Labor Code 1700 et seq. (Talent Agencies Act) ............................................ 2
CA Labor Code 1700.25-27 ................................................................................18
California Education Code, Sections 44252, 44253.3, 44257, 44274.2, 44279.1,
44280, 44281, and 44282 ......................................................................................33

Title 5, California Code of Regulations, Section 80413.3 .......................................33
OTHER AUTHORITIES
Albert, Taking Away an Artists Get Out of Jail Free Card: Making Changes
and Applying Basic Contract Principles to Californias Talent Agencies Act,
Pierce L. Rev., Vol. 8, No. 3 (2010). ....................................................................24

American Federation of Television and Radio Artists, Regs. Governing Agents,
rule 12-C ...............................................................................................................27

CA Talent Agency License Database ......................................................................34
Devlin, Reconciling the Controversies Surrounding Lawyers, Managers, and
Agents Participating in California's Entertainment Industry, Pepperdine L. Rev.,
Vol. 28, 381 (2001). ..............................................................................................23

xii

Johnson & Lang, The Personal Manager in the California Entertainment Industry,
52. S. Cal. L. Rev. 375 (1979) ..............................................................................23

LaFave & Scott, Substantive Criminal Law 1.2(d) (1986); .....................................24
OBrien, Regulation of Attorneys Under Californias Talent Agencies Act; A
Tautological Approach to Protecting Artists, CA. L. Rev., Vol. 80, Is. 2, 492
(1992). ...................................................................................................................23

Robertson, Dont Bite The Hand That Feeds: A Call For A Return To An Equitable
Talent Agencies Act Standard, Hastings Comm. & Ent. L. J., 223, 233 (1997). .23

Screen Actors Guild, Codified Agency Regs., Rule 16(g) ......................................27
Zarin, The California Controversy over Procuring Employment: A Case for the
Personal Managers Act, Fordham Intell. Prop. Media & Ent. L.J., Vol. 7 Is. 2,
943 (1997). ............................................................................................................42

Zelinski, Conflicts in the New Hollywood, So. Ca. L. Rev., Vol. 76:979, pp. 989-
990 (2003) .............................................................................................................28

RULES
CA Rules of Court 9.47, 9.48 ..................................................................................31
Fed.R.App.P. 26.1 ..................................................................................................... ii
Fed.R.App.P. 4(a)(1) .................................................................................................. 1
Fed.R.Civ.P. 12 ........................................................................................................33
Fed.R.Civ.P. 12(b)(1) ................................................................................................. 3
Fed.R.Civ.P. 12(b)(6) .......................................................................... 3, 9, 12, 32, 46
Fed.R.Civ.P. 15 ........................................................................................................10
Fed.R.Civ.P. 15(a) ....................................................................................................10

xiii
Fed.R.Civ.P. 57 .......................................................................................................... 3
Fed.R.Civ.P. 65 .......................................................................................................... 3
CONSTITUTIONAL PROVISIONS
Article I, Section 10 (Contracts Clause) ............................................... 2, 3, 9, 44, 46
Article I, Section 8 (Commerce Clause) ............................................... 2, 3, 8, 38, 39
Fifth Amendment ....................................................................................................... 9
First Amendment ............................................................................................. 2, 3, 42
Fourteenth Amendment ................................................................................ 3, 26, 27
Tenth Amendment ................................................................................................8, 32
Thirteenth Amendment ................................................................... 2, 3, 7, 27, 28, 29
LABOR COMMISSION DETERMINATIONS
Baker v. Bash, (TAC 12-96) ....................................................................................38
Behr v Dauer And Assoc., TAC 21-00 .....................................................................21
Billy Blanks Jr. v. Ricco, (TAC 7163) .....................................................................27
Blasi v. Marathon Entertainment, (TAC 15-03)......................................................22
Creative Artists Group v. Jennifer ODell, (TAC 26-99) ........................................21
Gittleman v Karolat, (TAC 24-02) ..........................................................................22
James Breuer v. Top Draw Entertainment, Inc.; Antonio U. Camacho,
(TAC 8-95) ............................................................................................................18

James Breuer v. Top Drawer Entertainment, (TAC 18-95) ....................................39

xiv
Jewel v. Inga Vainshtein, (TAC 02-99) ...................................................................22
Kelly Garner vs. Gillaroos, David Delorenzo, David Gillaroos, Chris Wood,
(TAC 1994-65)......................................................................................................39

Krutonog v. Chapman, (TAC 3351) ........................................................................26
Macy Gray v. Lori Leve Management, (TAC 18-00) ..............................................22
Marathon Entertainment v. Nia Vardalos, (TAC 02-03) ........................................26
Martha Robi v. Howard Wolf, (TAC 29-00) ...........................................................38
Nick Sevano v. Artistic Productions, Inc., (TAC 8-93) ...........................................18
Park v. Deftones, (TAC 9-97) ..................................................................................22
Parker Posey v. Lita Richardson, (TAC 7-02) ........................................................21
Thomas Haden Church v. Ross Brown, (TAC 52-92) .............................................18
Tool v. Larrikin Management (TAC-35-01) ............................................................21
Transeau v. 3 Artist Mgmt., (TAC 7306) .................................................................21
Wesley Snipes v. Delores Robinson, (TAC 36-96) ..................................................21


1
I. STATEMENT OF JURISDICTION
The District Court has jurisdiction of this action under to 28 U.S.C. 1331, 28
U.S.C. 2201 and 2202 and 42 U.S.C. 1983. This Court has jurisdiction under
28 U.S.C. 1291. The District Court Order (Excerpt of Record (ER), Vol. I, p.1)
entered March 5, 2013, is the final appealable order in this action. Plaintiff filed a
Notice of Appeal on April 2, 2013 (ER, Vol. II, p.18). This appeal is timely
pursuant to Fed.R.App.P. 4(a)(1).

2
II. STATEMENT OF ISSUES PRESENTED FOR REVIEW
The District Courts dismissal with prejudice, without leave to amend, of
Appellant National Conference of Personal Managers (NCOPM) Complaint
for failure to state a claim raises the following issues:
1. Whether NCOPM stated a claim that California Talent Agencies
Act (the TAA) is unconstitutionally vague on its face.
2. Whether NCOPM stated a claim that enforcement of the TAA
regulates speech and violates the First Amendment rights of
Plaintiff and its members, as applied.
3. Whether NCOPM stated a claim for involuntary servitude in
violation of the Thirteenth Amendment.
4. Whether NCOPM stated a claim that the TAA violates the
Commerce Clause of the U. S. Constitution.
5. Whether NCOPM stated a claim that enforcement of the TAA
violates the Contracts Clause of the U. S. Constitution.
6. Whether the District Court abused its discretion by dismissing
NCOPMs Complaint without granting leave to amend.
III. STATEMENT OF THE CASE
NCOPMs Complaint presented actionable and plausible facial and as
applied constitutional challenges to California Labor Code 1700 et seq., known
as the California Talent Agencies Act (ER, Vol. IV, p. 174, 1) arising under 42
U.S.C. 1983 and the United States Constitution. (ER, Vol. IV, p. 174, 5)
NCOPM seeks declaratory relief as authorized by 28 U.S.C. 2201 and 2202

3
and by Rules 57 and 65 of the Federal Rules of Civil Procedure. (ER, Vol. IV,
pp. 175-176, 6)
Plaintiff-Appellant NCOPM, a Nevada not-for-profit corporation, is a
national trade association of individuals employed in the occupation of personal
management, who manage and represent talent engaged in entertainment, media
and the performing arts. (ER, Vol. IV, p. 175, 10)
Defendants-Appellees are Edmund G. Brown, Jr., Governor of the State of
California; Kamala D. Harris, Attorney General of the State of California;

and
Julie A. Su, California Labor Commissioner, all in their official capacities. (ER,
Vol. IV, p. 176, 12-14)
The Complaint alleges NCOPMs constitutional rights and the constitutional
rights of its members are violated by Appellees interpretation and enforcement
of the TAA in violation of Article I, Sections 8 and 10, the First Amendment, the
Thirteenth Amendment and the Due Process and Equal Protection Clauses of the
Fourteenth Amendment of the U.S. Constitution. (ER, Vol. IV, p. 174, 2)
IV. PROCEDURAL HISTORY
On November 9, 2012, NCOPM filed its Complaint. The Complaint was
never amended. On January 11, 2013, Appellees filed a Motion To Dismiss
pursuant to FRCP Rules 12(b)(1) and 12(b)(6), (ER, Vol. IV, p. 141:5-14) On
March 5, 2013, the District Court issued its Order finding:
1. Plaintiff likely has standing; (ER, Vol. I, p. 5, 15-16)
2. The Labor Commissioner was likely the appropriate party to sue
for her non-adjudicatory acts; (ER, Vol. I, p. 5, 6-18)
3. The Governor and Attorney General likely have sovereign
immunity. (ER, Vol. I, p. 5, 18-19)
4. Plaintiff failed to state a claim. (ER, Vol. I, p. 5, 6-18)

4
5. Because any amendment to the Complaint would be futile, the
Motion to Dismiss was granted with prejudice. (ER, Vol. I, p. 5,
15-16)
Plaintiff filed a timely Notice of Appeal on April 2, 2013. (ER, Vol. II, p.
18)
V. STATEMENT OF FACTS AND SUMMARY OF COMPLAINT
Labor Code 1700.5 states: No person shall engage in or carry on the
occupation of a talent agency without first procuring a license therefor from the
Labor Commissioner.
Labor Code 1700.4(a) states: Talent agency means a person or
corporation who engages in the occupation of procuring, offering, promising, or
attempting to procure employment or engagements for an artist or artists, except
that the activities of procuring, offering, or promising to procure recording
contracts for an artist or artists shall not of itself subject a person or corporation
to regulation and licensing under this chapter. Talent agencies may, in addition,
counsel or direct artists in the development of their professional careers.
The TAA has no provisions expressly reserving any of the three defining
activities of a talent agent to licensees nor any notice of consequences should
non-licensees engage in any such activity and/or occupation of talent agent.
The Complaint arose from a decades-long controversy:
The state Legislature has grappled with the procurement of
employment in the entertainment industry for decades. The ongoing
regulatory tension comes from the attempt to simultaneously govern
personal managers and talent agents - professions that overlap.
Managers often have no choice but to seek employment for clients who
are unable to get licensed agents.


5
The enactment of the TAA in 1978 established the current
regulatory framework. The growing concern was the attempt to
bifurcate the roles and regulation of personal managers and talent
agents. The TAA aimed to clarify this distinction by redefining artists'
managers as talent agents. According to the TAA, talent agents are
individuals engaged in the occupation of procuring, offering, promising
or attempting to procure employment for an artist. Personal managers,
in theory, act strictly as coordinators and advisors for an artist's career
opportunities. The TAA establishes that no person can act as a talent
agent without first obtaining a license from the labor commissioner.

A disgruntled artist believing a personal manager has violated the
TAA can file a "petition to determine controversy" with the labor
commissioner, and the decision then may be tried de novo in superior
court

Until 2008, the vast majority of claims resulted in management
contracts being voided ab initio and all earned commissions being
forfeited or, if previously paid, ordered disgorged. That year, the state
Supreme Court decided Marathon Entertainment v. Blasi, 42 Cal. 4th
974 (2008), which held that while fully voiding the parties' contract is
an available remedy, the labor commissioner has discretion to apply the
doctrine of severability to enforce the remaining lawful portions of
management agreements

Despite the increasing use of severability, however, the
commissioner still voids management contracts ab initio (Johnson
& Mueller, Talent Agency the TAA Survives Suit, Clarity Remains
Elusive, Los Angeles Daily Journal, May 10, 2013). (Article reprint
available at http://www.jjllplaw.com/2013/05/11/talent-agency-act-
survives-suit-clarity-remains-elusive.)

In the 1900s, talent agents were referred to as Artist Managers and the
relevant occupational scheme was entitled the Artists Managers Act. In 1978, in
part due to the growing number of personal managers, California considered new
legislation to determine who was to be regulated. While the Legislature
recognized that a variety of professionals talent agents, personal managers,

6
publicists and attorneys work to advance artists careers, it chose only to
regulate one occupation: talent agent. (ER, Vol. IV, pp. 177-181, 16-32) The
schemes new title, the Talent Agencies Act, versus the Artists Representatives
Act, underscores the Legislatures thinking. (ER, Vol. IV, pp. 179-180, 23-24)
Between 1982-1986 the Legislature again revisited and rejected the idea of
regulating the occupation of personal manager. It did amend the Act. Most
relevantly it first temporarily, then permanently, repealed the only penalty
provision ever written into the TAA; under which the selling of a talent agency
without the Commissioners consent was a criminal misdemeanor, punishable by
fine or imprisonment. Since then the TAA has never contained any statutory
notice setting forth the consequences for any action undertaken in connection
with its licensing provisions. (ER, Vol. IV, pp. 181, 32)
Against this background, the Complaint asked the District Court to declare
that the TAA:
(1) fails to provide adequate notice as to who is subject to the TAA (ER,
Vol. IV, pp. 182, 34) or what acts, if any, are regulated Id.;
(2) has no provision granting the Commissioner, who hears all TAA
controversies, authority to impair contracts or order disgorgement if the TAA
regulations are violated (ER, Vol. IV, pp. 182, 37);
(3) contains no remedy for the TAA violations (ER, Vol. IV, pp. 183, 41);
4) unconstitutionally interferes with interstate commerce. (ER, Vol. IV, pp.
182, 38); and
(5) is unconstitutional as applied, lacking any statutory foundation for
Appellees enforcement in practice. (ER, Vol. IV, pp. 183, 40)
The Complaint alleges the enforcement of the TAA injures the NCOPM and
its members and interferes with their right to life, liberty and property, justifying
declaratory and injunctive relief. (ER, Vol. IV, pp. 183-184, 45-49)

7
The Complaint alleges the Commissioners enforcement of the TAA is
unconstitutional and contrary to the California laws prohibiting administrative
agencies from creating remedies withheld by the Legislature and requiring
statutory provisions for forfeiture of rights to contract in occupational licensing
schemes. (ER, Vol. IV, pp. 185, 56- 57)
The Complaint alleges that the Commissioner routinely orders disgorgement
of compensation earned from lawful services from alleged violators of the TAA,
without statutory authority based on a finding of fraud, failure to perform or a
criminal conviction, thereby creating involuntary servitude in violation of the
Thirteenth Amendment. (ER, Vol. IV, pp. 186, 61-64)
VI. SUMMARY OF ARGUMENT
1. Neither the Legislature, the Commissioner nor any court have ever
provided specific notice as to what constitutes illicit procurement or attempted
procurement. The District Court concluded, based solely on the limited
information it possessed at the initial pleading stage (and without granting
Plaintiff leave to amend), the TAA provides a person of ordinary intelligence a
reasonable opportunity to know what is permitted and what is prohibited, so they
may act accordingly. Yet the Commissioner and California Supreme Court
acknowledge an ongoing struggle with articulating clear and reliable definitions
of procurement. Thus, ruling Plaintiff failed to state a plausible claim that the
TAA is unconstitutionally vague was a reversible error.
2. The U. S. Supreme Court defined involuntary servitude as a condition of
servitude in which the victim is forced to work by the use or threat of physical
restraint or physical injury or by the use or threat of coercion through law or the
legal process. United States v. Kozminski 487 U.S. 931 (1988) (emphasis
added). When the Commissioner voids a personal management contract ab initio,

8
ordering the manager to disgorge previously lawfully earned compensation, the
manager is forced through the legal process to have worked without
compensation in a private business and for the benefit of the artist, thus
subjecting them to indentured servitude ex post facto.
3. The Commerce Clause grants congressional authority and restricts States
powers to regulate. The dormant Commerce Clause refers to the implied
prohibition against States passing legislation discriminating against or
excessively burdening interstate commerce. Under the Tenth Amendment and the
Interstate Commerce Clause, California only has the power to issue licenses for
the conduct of businesses within its sovereign borders; not for the operation of
businesses wholly outside its borders. The TAA precludes out-of-state persons
from getting licensed and, therefore engaging in Californias entertainment
industry. As this favors Californias economic interests over their out-of-state
counterparts, the TAA on its face is discriminatory and per se invalid, and
unconstitutional as applied.
4. Citing a case predating the development of the commercial speech
doctrine, the District Court erred in finding the TAA regulates conduct and does
not regulate speech. Speech, which does no more than propose a commercial
transaction, is protected and is the essence of a personal managers contractual
responsibility to promote a clients career. The facial and as applied restrictions
imposed by the TAA on commercial speech cannot be justified under the current
test for restraints on commercial speech.
5. Based solely on the limited information it possessed at the initial pleading
stage (and without granting leave to amend), the District Court concluded the
TAA regulates conduct; that, it limits the personal managers ability to enforce
contractual obligations when that person engages in the conduct of procuring
employment. (ER, Vol. I, p. 10:5-7) The TAA has no provisions that (1)

9
expressly prohibit unlicensed persons from engaging in procuring employment;
(2) reserve the right of procurement or the other defined activities of a talent
agent solely to licensees, or (3) impede the right to contract of non-licensees who
engage in the act of procuring employment for artists. Yet, without the required
statutory authority, the Commissioner under color of law routinely and arbitrarily
voids personal management contracts ab initio. She has ordered past
compensation disgorged even when the services were fully and lawfully
performed years before, and without serving any significant or legitimate
purpose. Plaintiff stated a plausible claim that the enforcement of the TAA is in
violation of the Contracts Clause. The Commissioner enforced imaginary
provisions, and as the deprivation of the right to contract for ones labor without
findings of fraud or non-performance is a criminal penalty, such actions violate
the due process provision of the Fifth Amendment of the Constitution.
6. Contrary to Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308
(2007) (courts must consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule 12(b)(6) motions) the
District Court failed to consider all of the claims asserted in the Complaint and,
therefore the dismissal should be reversed and remanded to the District Court.
VII. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING
LEAVE TO AMEND
The District Court's denial of leave to amend the Complaint is reviewed for
an abuse of discretion. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.
2004). When reviewing a district court's decision for abuse of discretion, [w]e
first look to whether the trial court identified and applied the correct legal rule to
the relief requested. Second, we look to whether the trial court's resolution of the
motion resulted from a factual finding that was illogical, implausible, or without

10
support in inferences that may be drawn from the facts in the record. City of
Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 454 (9th Cir. 2011).
Generally, under FRCP Rule 15, leave shall be freely given when justice so
requires. This policy is to be applied with extreme liberality. Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001). Foman v. Davis,
371 U.S. 178 (1962) held in the absence of any apparent or declared reason -
such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment, etc. - the leave sought should, as the rules require, be freely
given. Id. at 182. As this circuit and others have held, it is the consideration of
prejudice to the opposing party that carries the greatest weight. See DCD
Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir.1987). Absent prejudice,
or a strong showing of any of the remaining Foman factors, there exists a
presumption under Rule 15(a) in favor of granting leave to amend. See Lowrey v.
Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir.1997). A simple denial of
leave to amend without any explanation by the district court is subject to reversal.
Such a judgment is not an exercise of discretion; it is merely abuse of that
discretion and inconsistent with the spirit of the Federal Rules. Foman, 371 U.S.
at 182, 83 S.Ct. 227; Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau,
701 F.2d 1276, 1292-93 (9th Cir.1983) Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003).
The District Court did not find Appellees would be prejudiced had leave to
amend been granted. And for good reason: the case was in its initial stage. The
Complaint had been filed on November 9, 2012 and had never been amended.
Appellees moved to dismiss on January 11, 2013. A Hearing was promptly held
on February 25, 2013 and the District Court granted the motion on March 3,

11
2013. No prejudice whatsoever would have befallen Appellees had Plaintiff been
granted twenty (20) days to amend. Appellees never offered even a hint how
they would suffer any prejudice whatsoever if leave to amend was granted. (ER,
Vol. IV, pp. 139-172)
Dismissal with prejudice and without leave to amend is not appropriate
unless it is clear on de novo review the complaint could not be saved by
amendment. Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996). A district court's
failure to consider the relevant factors and articulate why dismissal should be
with prejudice instead of without prejudice may constitute an abuse of discretion.
(Citations omitted). Id. at 1052. The standard for granting leave to amend is
generous. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 701 (9th Cir.1990).
Here, the District Court failed to apply the correct legal standard. There was no
evidence of delay, prejudice, bad faith, or previous amendments, and the District
Court did not find any of those factors were present. Instead, without conducting
the necessary and required analysis, the District Court simply announced,
[b]ecause any amendment would be futile, the court grants the Motion with
prejudice. (ER, Vol. I, p. 11, ll. 15-16)
Under the appropriate futility analysis, [d]ismissal without leave to amend
is improper unless it is clear, upon de novo review, that the complaint could not
be saved by any amendment. Krainski v. Nevada ex rel. Bd. of Regents of NV.
System of Higher Educ., 616 F.3d 963, 972 (9th Cir.2010); see also Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir.2000); Balistreri, 901 F.2d at 701.
Ironically, rather than finding the Complaint could not be cured by
allegations of other facts, the District Court itself presented a potential cure. It
noted how NCOPM claimed, [a]lmost any act undertaken by Plaintiff, even as
innocuous as helping choose a headshot, could and has been linked to the
ultimate goal of any artist represented by Plaintiff to get a job, but the allegation

12
does not appear in the Complaint. (ER, Vol. I, p. 6, 20-21) That and other
allegations could have been added with leave to amend. Balistreri at 701; Lopez
at 1130-31.
Plaintiff expressly requested leave to amend (ER, Vol. II, p. 78: 5) and
specifically indicated the precise allegations it would add.
1
It is clear on de novo
review that the Complaint could be saved by amendment. Chang at 1296.
The District Court's failure to consider the relevant factors and articulate
why dismissal should be with prejudice, instead of without prejudice,
constitutes an abuse of discretion and reversible error. The Order dismissing the
Complaint with prejudice should be reversed.
VIII. STANDARD OF REVIEW
This Court reviews de novo a District Courts dismissal of a complaint for
failure to state a claim under FRCP Rule 12(b)(6). Starr v. Baca, 652 F.3d 1202,
1205 (9th Cir. 2011) Rule 12(b)(6) motions are viewed with disfavor and rarely
granted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9
th
Cir. 1997). It is
only under extraordinary circumstances that dismissal is proper. United States v.
Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). When considering such
motions, the court must accept as true all factual allegations in the complaint as
well as all reasonable inferences that may be drawn from such allegations. LSO,
Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9
th
Cir. 2000). Such allegations must be

1
Plaintiff will cite the TAA determinations where the same actions are alternately found
lawful in one instance and unlawful in another; (ER, Vol. II, P. 55, fn2); Plaintiff will present
examples of how the Labor Commissioner has advocated for the TAA enforcement versus
staying objective as required for five decades; (ER, Vol. II, P. 66, fn4); Plaintiff will present
several examples of efforts asking the Labor Commissioner for clarification on issues that went
ignored; (ER, Vol. II, P. 68, fn6); and Plaintiff will show several examples of inconsistent,
contrary interpretations by the Labor Commissioner, at times in almost simultaneous handed
down determinations. (ER, Vol. II, p. 72, ll. 26-27)

13
construed in the light most favorable to the nonmoving party. Shwarz v. United
States, 234 F.3d 428, 435 (9th Cir. 2000). The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support
the claims. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997).
Under FRCP Rule 8(a), the Court must determine whether the complaint contains
sufficient factual matter that, taken as true, state a claim for relief is plausible
on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Courts must consider the
complaint in its entirety when deciding a Rule 12(b)(6) motion to dismiss.
Tellabs, Inc., 551 U.S. at 322.

IX. ARGUMENT
A. THE DISTRICT COURT ERRED IN FINDING THE TAA IS NOT
UNCONSTITUTIONALLY VAGUE
1. The TAA Is Unclear As To What Activities It Regulates
Labor Code 1700.4(a) defines a talent agent as one who (a) engages in the
occupation of procuring, offering, promising, or attempting to procure
employment or engagements, (b) counsels artists in the development of their
professional careers and (c) directs artists in the development of their
professional careers. The TAA does not specify which of these activities are
reserved exclusively for licensees. Nor is there a provision prohibiting those
without licenses from engaging in any or all of these defining activities, nor is
there any provision giving notice that one engaging in any or all of those
activities is thereby engaging in the occupation of a talent agent.
Despite finding the TAA is not standardless, the District Courts own words
support NCOPMs claim of unconstitutional vagueness. The District Court

14
acknowledged, the activities of personal managers and talent agents have
significant overlap with respect to procuring employment, but concluded
without reasoning or explanation, this breadth does not render the statute
standardless. Id., p. 6: 23-24. If the District Court cannot articulate which
activities constitute procuring employment and which do not, how can people of
ordinary intelligence be expected to do so?
We begin by reviewing California law on statutory interpretation.
The California Supreme Court recently stated [the] first task in
construing a statute is to ascertain the intent of the legislature so as to
effectuate the purpose of the law. Quintano v. Mercury Cas. Co., 11
Cal.4
th
1049 (1995).
In determining such intent, a court must first look to the words of
the statute themselves, giving to the language its usual, ordinary import
and providing significance, if possible, to every word, phrase and
sentence in pursuance of the legislative purpose The words of the
statute must be construed in context, keeping in mind the statutory
purpose, and statutes and statutory sections relating to the same subject
must be harmonized, both internally and with each other, to the extent
possible. Dyna-Med, Inc. v. Fair Employment & Housing Commission
43 Cal.3d 1379 (1987).

"[I]n interpreting a statute a court should always turn to one
cardinal canon before all others. . . .[C]ourts must presume that a
legislature says in a statute what it means and means in a statute what it
says there." See, e. g., United States v. Ron Pair Enterprises, Inc., 489
U. S. 235, 241-242 (1989); United States v. Goldenberg, 168 U. S. 95,
102-103 (1897); Oneale v. Thornton, 6 Cranch 53, 68 (1810). 112 S. Ct.
1146, 1149. Indeed, "when the words of a statute are unambiguous,
then, this first canon is also the last: 'judicial inquiry is complete.'"
Rubin v. United States, 449 U. S. 424, 430 (1981); see also Ron Pair
Enterprises, supra, at 241. Connecticut Nat'l Bank v. Germain, 503
U.S. 249, 254 (1992) (CNB).

Following CNB (at 254), courts must presume the Legislature meant to
allow anyone to lawfully engage in any of the defining activities, so long as they
are not engaged in the occupation of talent agent. As interpreted and enforced

15
by the Commissioner, but not as enacted by the Legislature, the TAA only
prohibits unlicensed procurement but not unlicensed directing and unlicensed
counseling of artists. The selective disconnect between the TAAs actual
language and its enforcement renders the statute unconstitutionally vague as
applied.
Despite the fact the District Court found the TAA is not vague because the
term procure is easily understandable, the operative question is not just what
procuring, offering, promising, or attempting to procure employment or
engagements means, but at what stage does it become unlawful? (ER, Vol. IV,
p. 184, 47-48) The Complaint alleges a Legislative Commission empanelled to
create a model Act found procuring employment such an ambiguous phrase it left
reasonable persons in doubt about the meaning of the language or whether a
violation has occurred.(ER, Vol. IV, p. 177, 18)
The TAA requires those endeavoring to engage in the occupation of talent
agent to first procure a talent agency license. (CA. Labor Code 1700.5). As
noted, under 1700.4(a), talent agents have three defining responsibilities: (1)
procuring or attempting to procure employment opportunities; (2) directing artists
and/or (3) counseling artists. The Commissioner enforces 1700.4(a) and 1700.5
(defining artists) as if only licensees can procure employment and anyone can
counsel or direct artists.
To show the disconnect between the Commissioners interpretation and the
legislative intention behind the TAA, it is important to recognize what is and is
not part of the Acts plain language.
2. The TAA Lacks Clarity As To Who Is Regulated
"[C]ourts must presume that a legislature says in a statute what it means and
means in a statute what it says there." CNB Supra. The statute is entitled the

16
Talent Agencies Act, not the Talent Procurement Act, which would have
signaled that anyone who procures employment opportunities must be regulated.
Nor is it entitled the Artists Representatives Act. Following CNB, courts must
presume the Legislature expressly chose to regulate only those in the
occupation of talent agent, not all representatives of talent who procure
employment opportunities for artists as an incident of acting as an attorney,
accountant, business manager or personal manager.
For Appellees enforcement of the TAA to pass constitutional muster, there
must be clear notice of who is regulated by the Act, Lanzetta v. New Jersey, 306
U.S. 451 (1939); what conduct is regulated by the Act, Interstate Circuit, Inc. v
City of Dallas, 390 U.S. 676 (1968); and what consequences alleged violators
would face. United States v. Evans, 333 U.S. 483 (1948). The TAA fails all three
tests.
In concluding that those in the occupation of personal management are
subject to the provisions of the TAA, the California Supreme Court referenced
how in 1700, person is expressly defined to include any individual,
company, society, firm, partnership, association, corporation, limited liability
company, manager, or their agents or employees. Marathon v. Blasi, 42 Cal.
4th 974, 984 (2008). That dicta misinterprets the Acts verbiage. That list
references ones place in a company, not their occupation. According to the
statutory canon of ejusdem generis, where, the general words shall be construed
as applicable only to persons or things of the same general nature or kind as those
enumerated," Walling v. Peavy Wilson Lumber Co., 49 F. Supp. 846, 859 (1943),
courts are required to interpret the term manager similarly to the other terms in
that list. Neither firm nor society nor any of the others are occupations; the
list refers to ones place in an organization. Further, 1700 offers no specificity
as to which managers might be being regulated. Must all managers personal

17
managers, business managers, property managers, retail store managers obtain
licenses irrespective of occupation and responsibilities? Following Walling, if
personal managers were to be regulated by the TAA, the Legislature would have
included the word personal in 1700. (ER, Vol. IV, p. 184, 46)
Most California business licensing schemes
2
include provisions limiting that
professions defined activities to licensees; making it a criminal offense when
unlicensed people ignore those restrictions. The TAA has no such provisions; it
mirrors verbiage of licensing schemes
3
that as written and applied do not
regulate conduct. Only licensees can hold themselves out as, for example,
accountants, landscape architects or psychologists, but anyone can engage in
those professions defined activities.
The Canon of In Pari Materia obliges courts to compare verbiage and
interpretation of similar statutes when a statute is ambiguous. The words of the
TAA are of the same general nature as those enumerated in the Psychologists and
Landscape Architects Acts, where it is not conduct, but the occupational title that
is reserved for licensees. The TAA is anomalously interpreted and enforced. It is
not treated like the licensing schemes with similar verbiage but instead like
licensing schemes with provisions that expressly restrict conduct. (ER, Vol. IV,
p. 186, 62-64.)
The TAA has no provision for penalty, fine, remedy or consequence should
an unlicensed person procure employment for an artist. The surplusage rule is
the principle whereby each word and phrase of a statute is meaningful and useful.

2
See, among others, the Clinical Laboratory Technology Act (BPC 1200 et seq., 1270(a)), the
Medical Practice Act (BPC 2000 et seq. 2050); the Pharmacy Act (BPC 4000 et seq.,
4320); the Locksmiths Act (BPC 6980 et seq., 6980.10), and the Contractors State Licensing
Law (BPC 7000 et seq., 7027-2031).
3
Examples: The CA. Landscape Architects Act (BPC 5615 et seq.), the CA. Psychologists
Act (BPC 2900 et seq.), and among others, the CA Accountancy Act (BPC 5000 et seq.).

18
Statutes should be construed so as to avoid rendering superfluous any statutory
language. Astoria Federal Savings & Loan Association v. Solimino, 501 U.S.
104, 112 (1991). The Commissioners interpretation makes notice of regulated
activities and consequences superfluous. If one can be punished without codified
provisions, there is no need for provisions that give notice of activities reserved
for licensees or of consequences for those who engage in them without a license
as are contained in the Contractors, Locksmiths and similar schemes.
The Legislatures decision not to include prohibitive and consequential
provisions in the TAA obliges courts to assume unlicensed procurement of
employment opportunities for artists is lawful and thus Appellees enforcement to
the contrary must be viewed as ultra vires and unconstitutional as applied. (ER,
Vol. IV, p. 186, 62).
Appellees Motion to Dismiss cites the seven different steps one must take
to comply with the TAAs precepts. Licensed talent agents are required to
annually renew their license (1700.10); post a $50,000 bond (1700.15); file
their contractual forms with the Labor Commissioner (1700.23); post and file
their fee schedules (1700.24); comply with trust fund and records requirements
(1700.25-27); reimburse travel costs for job opportunities that are not finalized
(1700.41); and refer controversies to the Labor Commissioner. (ER, Vol. IV, p.
153 11-27).
Appellees Reply also cites the six express prohibitions of the TAA, to wit:
agents cannot publish false or misleading information (1700.32); send artists to
unsafe places (1700.33); employ persons of bad character (1700.35); secure
employment for an artist where there is labor unrest without notifying the artist
(1700.38), split fees with employers (1700.39), or collect fees or secure
employment with entities the agent has a financial interest (1700.40). (ER, Vol.
II, p. 39:8-27).

19
The canon of Expressio unius est exculsio aterius obliges courts to assume
that only regulations the Legislature chose to enforce are those expressly
included in a list of requirements and/or prohibitions in the statute. The
Legislature did not include on the TAAs list of requirements a provision
whereby one must have a license to procure employment for an artist. And
the Legislature did not include on the list of its prohibitions, the act of
procuring employment opportunities for artists without a license.
In rejecting NCOPMs vagueness challenge, the District Court relied on
Wachs v. Curry, 13 Cal.App. 4
th
616, 628-29 (1993) and Grayned v City of
Rockford, 408 U.S. 104, 108 (1972) and used a generic dictionary definition of
procurement rather than consider legal precedents and real-world realities.
Wachs concluded that on its face, the term occupation of procuring
[employment] is not so patently vague and wholly devoid of objective meaning
that it provides no standard at all. However, the Court specifically noted,
Whether the Act is unconstitutional as applied to Plaintiffs is a question for
another day. Id at 504. This is that day.
Citing Grayned, the District Court stated a law is not unconstitutionally
vague if it provides a person of ordinary intelligence with a reasonable
opportunity to know what is prohibited, so he or she may act accordingly. (ER,
Vol. I, p. 6:3-5) In 1982, the Legislature created the California Entertainment
Commission (CEC) to recommend changes to the TAA. Chaired by the
Labor Commissioner, the CEC was comprised of four talent agents, four
personal managers, and four artists, assumedly all of at least ordinary
intelligence. Its recommendation, which the Legislature subsequently adopted,
was that no licensing violation be considered criminal, specifically because they
could not discern what was or was not prohibited by the Act, finding:

20
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 of whether a
violation has occurred.

Procuring employment is just such a phrase the
uncertainty of knowing such activity may or may not have occurred
has left the personal manager uncertain and highly apprehensive about
the permissible parameters of their daily activity. (See The Report of
the California Entertainment Commission, p. 25.) (Emphasis added.)

Californias judicial branch is equally confounded as to what constitutes
procurement. The California Supreme Court has stated:
The Act contains no definition, and the Labor Commissioner has
struggled over time to better delineate which actions involve general
assistance to an artists career and which stray across the line to illicit
procurement. Marathon at 990.
4

3. The Ambiguity of the TAA Has Resulted In Conflicting And
Arbitrary Determinations by the Commissioner
No law should be drafted, interpreted or enforced to facilitate arbitrary and
discriminatory enforcement. City of Chicago v. Morales 527 U.S. 41, 58-59
(1999); Kolender v. Lawson 461 U.S. 352, 357 (1983); Smith v. Gougen 415 U.S.
566, 575 (1972). There are a litany of examples showing the Commissioner has
fluctuated between multiple and conflicting interpretations without standards in
enforcing the TAAs application. Kugler v. Yocum (1968) 69 Cal.2d 371, 376-77;
State Board of Education v. Honig 13 Cal.App.4
th
720, 750 (1993). The
Commissioner has ordered disgorged lawful compensation earned by personal
managers for such common free speech activities as sending out resumes and

4
Marathon did not address the constitutional challenges presented here by NCOPM.

21
photographs,
5
distributing resume and videotapes,
6
and sending written
materials introducing the client to the casting and development communities.
7

Managers lawfully create sales/marketing materials and prepare their clients
for market, making a bright line test between marketing and sales completely
impossible. Managers must possess the unfettered ability to interact with, and
speak with their clients and other industry professionals to intelligently advise
and counsel their clients.
The Commissioner herself has determined the requirements of the [Safe
Harbor] statute cannot be construed to call for a game of Mother May I? every
time an artist manager takes some action during a long term relationship To
find otherwise would be to ignore the realities of the day to day life in the
[entertainment] industry. Wesley Snipes v. Delores Robinson (TAC 36-96),
Creative Artists Group v. Jennifer ODell (TAC 26-99).
But conversely, the Commissioner has found it unlawful when a personal
manager proactively procures once without the request of a licensed agent.
Behr v Dauer and Assoc. (TAC 21-00). In Tool v. Larrikin Management (TAC-
35-01), the Commissioner found the personal manager did not qualify for the
Safe Harbor because the manager called the talent agency about an opportunity
rather than the agency calling the personal manager. See also Transeau v. 3 Artist
Mgmt. (TAC 7306).
In Parker Posey v. Lita Richardson (TAC 7-02), the Commissioner voided
the contractual rights of an attorney for procuring without a license. However, in
Jewel v. Inga Vainshtein (TAC 02-99), the Commissioner left the contractual

5
Thomas Haden Church v. Ross Brown, (TAC 52-92), California Labor Commission.
6
Nick Sevano v. Artistic Productions, Inc., (TAC 8-93), California Labor Commission.
7
James Breuer v. Top Draw Entertainment, Inc.; Antonio U. Camacho (TAC 8-95), California
Labor Commission.

22
rights of the attorney intact because the artist only petitioned to void and
recapture her previous payments to her manager.
It is noteworthy the Commissioner acknowledges her difficulty in discerning
violations. It goes without saying there will not always be a bright line between
what constitutes arranging for the placement of an artist, and what constitutes
selling a product or service, on the other. For close cases, there is no single
formulation that can delineate on which side of the line the activity falls. Todd v.
Meagher (TAC 13148). This is the very embodiment of unconstitutional
vagueness: if those empowered to enforce the law cannot clearly discern
where lawfulness ends and lawlessness begins, how can a reasonable
layperson of average intelligence do so?
Without judicial redress, the Commissioner will continue to mete out
inconsistent, arbitrary rulings on the meaning of procurement. Gittleman v
Karolat, (TAC 24-02), holds that a talent agency license is not required for the
procurement of a guest appearance on a talk show provided the appearance does
not involve the rendition of artistic services. Id., p. 27. But in Blasi v. Marathon
Entertainment, (TAC 15-03), decided the same year as Gittleman, the
Commissioner ruled that helping an actress procure appearances on three talk
shows (where the actor was not acting) did violate the Act. Id., p. 21. Same facts,
same year, opposite rulings.
In Macy Gray v. Lori Leve Management, (TAC 18-00), the managers right
to enforce a contract with an artist was affirmed even though Commissioner
found the showcase the manager arranged was to procure a recording contract.
Indeed Epic Records promptly signed the artist as a direct result of the
showcase. But in Park v. Deftones, (TAC 9-97), the manager was found to have
violated the TAA for organizing 83 showcases for his client until, on the 84
th

effort, the band was signed to Maverick Records. The managers in both actions

23
took identical actions but the Commissioner reached opposite results. Ironically,
the manager in Deftones was punished for his tenacious commitment to his client.
Since 1979, the vagueness of the TAA has been an ongoing subject of
commentary in a wide array of law review articles:
Two questions that remain unresolved after passage of the TAA
are when, if ever, procurement activity is permissible by an
unlicensed talent agent, and what quantum of activity constitutes
procurement activity. Johnson & Lang, The Personal Manager in the
California Entertainment Industry, 52. S. Cal. L. Rev. 375 (1979).

Ambiguous language renders the Act inherently unjust because it
does not give fair and adequate warning of the type of activity that
constitutes procurement and it does not provide a consistent standard
that the Labor Commissioner can apply to determine whether an
individual has violated the Act. OBrien, Regulation of Attorneys
Under Californias Talent Agencies Act; CA. L. Rev., Vol. 80, Is. 2,
492 (1992).

The Legislature fostered confusion by failing to stipulate precisely
which individuals and specific activities fall beneath the umbrella of the
new licensing requirements. Robertson, Dont Bite The Hand That
Feeds: A Call For A Return To An Equitable Talent Agencies Act
Standard, Hastings Comm. & Ent. L. J., 223, 233 (1997).

The TAA, the TAA's predecessors and amendments, the CEC,
California courts, and the Labor Commissioner have each failed to
define precisely which activities constitute procurement. Devlin,
Reconciling the Controversies Surrounding Lawyers, Managers, and
Agents Participating in California's Entertainment Industry, Pepperdine
L. Rev., Vol. 28, 381 (2001).

[I]nconsistent interpretations by the Labor Commissioner and
courts, [have created] an environment where no one is quite sure what
is allowed. The ambiguity leaves unlicensed personal managers unfairly
exposed to staggering potential liability. Taking Away an Artists Get
Out of Jail Free Card, Pierce L. Rev., Vol. 8, No. 3 (2010).

24
4. The TAA As Applied Exceeds Commissioners Statutory Authority
The District Court ignored Plaintiffs claim that the Commissioners
enforcement is rendered unconstitutional because the TAA gives no notice of any
penalty. The Complaint cited multiple instances where the Commissioner ordered
the disgorgement of compensation despite there being no statutory authority to do
so. (ER, Vol. IV, pp. 182-191, 37-42, 56-58, 70, 72-73, 76, 79-80, 93-97)
Engrained in our concept of due process is the requirement of notice.
Notice is sometimes essential so that the citizen has the chance to defend charges.
Notice is required before property interests are disturbed, before assessments are
made, before penalties are assessed. Wolff v. Fox (1977) 68 Cal. App. 3d 280
citing Lambert v. California 355 U.S. 225, 228 (1957); BMW of America v. Gore
517 U.S. 559, 574 (1995) (one is entitled to fair notice not only of the conduct
that will subject him to punishment but also of the severity of the penalty that a
State may impose.) Trying to assign a penalty without statutory guideposts is a
task outside the bounds of judicial interpretation reserved only by legislative
action. U.S. v. Evans 333 U.S. 483, 495 (1948). (ER, Vol. IV, p. 183, 40)
In Evans, the statute prohibited both bringing undocumented persons into the
country and harboring them, but only contained a penalty for the former. While
noting Congress wanted to prohibit both actions, the Court stated it was
powerless to create a penalty for harboring because only Congress can assign
penalties. Violations of law are "made up of two parts, forbidden conduct and a
prescribed penalty. The former without the latter is no [violation]." LaFave &
Scott, Substantive Criminal Law 1.2(d) (1986); see Evans at 486.
The District Court ignored the allegation that without notice of a penalty, the
TAA is unconstitutional. (ER, Vol. IV, p. 178-181, 21 32; p. 185, 57; p.
186, 62 64)

25
The general rule is that "[w]here the enabling statute is essentially
remedial, and does not carry a penal program declaring certain practices
to be crimes or provide penalties or fines in vindication of public rights,
an agency does not have discretion to devise punitive measures such as
the prescription of penalties or fines

An administrative agency cannot by its own regulations create a
remedy which the Legislature has withheld. [Citations]. 'Administrative
regulations that alter or amend the statute or enlarge or impair its scope
are void and courts not only may, but it is their obligation to strike
down such regulations.' Morris v. Williams, 67 Cal 2d 733, 748
(1967). Dyna-Med, Inc. v. Fair Employment & Housing Comm., 43
Cal. 3d 1385, 1388 (1987). (ER, Vol. IV, p. 185, 56)

The District Court overlooked how Appellees ignored that the Legislature,
first temporarily in 1982 and then permanently in 1986, repealed the TAAs only
penalty provision; a change by which it is presumed that it intended to effect a
substantial change in the law. Royal Co. Auctioneers, Inc. v. Coast Printing
Equipment Co. 138 Cal.App.3d 868, 873(1987); Barajas v City of Anaheim 15
Cal.App. 4
th
1808, 1814 (1993). The Commissioner acted as if there had been no
change; continuing to accept Petitions for Controversy, hold hearings, void
contracts and order disgorgement. For a contract to be voided, there must be a
provision indicating the failure to obtain a license was intended to affect in any
degree the right of contract. Wood v. Krepps, 168 Cal 382, 387 (1914). The
TAA has no such provision. The Commissioner alone created the penalty.
"A violation of reasonable rules regulating the use and occupancy of
the property is made a crime, not by the Secretary, but by Congress. The
statute, not the Secretary, fixes the penalty." United States v. Eaton, 144
U.S. 677, 688 (1892). The Commissioner routinely violates this admonition.

26
5. The Commissioner Selective Enforcement of the TAA Violates The
Equal Protection Clause Of The Fourteenth Amendment
The Complaint alleges the TAA, as enforced, is discriminatory and violates
the Equal Protection Clause of the Fourteenth Amendment. (ER, Vol. IV, p. 174-
182, 1, 29, 37) Along with the arbitrary nature of the enforcement, where the
same action is sometime lawful, sometimes not, an examination of past TAA
Determinations spotlights how, on occasion, the infraction does not appear to be
about the specific activity, but specifically because the accused is labeled a
personal manager. For instance, in Marathon Entertainment v. Nia Vardalos
(TAC 02-03), attorney Jon Moonves and producer Gary Goetzman testified to
helping put together My Big Fat Greek Wedding, but only the personal
manager was found to have acted unlawfully. (Vardalos Supra, p. 2:27 p. 3:1).
Another appalling example is Krutonog v. Chapman, (TAC 3351), where the
Commissioner regulated the status, not the conduct, of Boris Krutonog, an actor
and producer. A producer who never held himself out as a personal manager,
Krutonog optioned the life story rights of Duane Dog Chapman, a colorful
bounty hunter. For eight years Krutonog spent his time and money on the project,
routinely renewing the option, customary producer activities. Id., Pg. 5:11-19. In
2003, the A&E Network agreed to produce a reality show based on Chapman,
and Krutonog signed an agreement to serve as a series co-executive producer. Id.,
p. 6, lines 1-7. But the Commissioner found many of the tasks Krutonog rendered
as a producer were rendered as a personal manager who also acted as a talent
agent. Id., p. 13:24-25.
There was no evidence Krutonog had any personal management clients
before, during or after his relationship with Chapman and A&E. He testified all
his efforts were done as a producer. Yet because there was evidence others

27
assumed Krutonog was Chapmans manager,
8
the Commissioner labeled
Krutonog a personal manager and ordered him to disgorge the considerable
amount of $539,450.21 in otherwise lawful, previously earned compensation.
This finding was irrelevant to conduct; Krutonogs actions mirror those of
producers. Rather it was based on the assumption of his being a personal
manager.
Similarly, in Billy Blanks Jr. v. Ricco, (TAC 7163), a business partner was
found to have unlawfully procured an appearance for an artist on the ELLEN
show Id., p. 9, lines 16-17, expressly because he also agreed to be the artists
manager. Id., lines 20-22.
The Commissioner presumptively views personal managers as acting
unlawfully, requiring them to prove their innocence. Just being a manager
converts what the Commissioner deems lawful for others into unlawfulness.
Such enforcement violates the Equal Protection clause of the Fourteenth
Amendment.
The District Court erred in finding Plaintiff failed to state a claim that the
TAA is unconstitutionally vague. The Order should be reversed or in the
alternative this matter should be remanded to allow amendment of the Complaint.
B. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF HAS
NOT STATED A CLAIM FOR INVOLUNTARY SERVITUDE
Section 1 of the Thirteenth Amendment of the U. S. Constitution states,
Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.

8
The evidence all referenced the term manager, not personal manager. One can certainly
manage others affairs without being in the specific entertainment-industry occupation of a
personal manager.

28
The essence of slavery or involuntary servitude is that the worker must
labor against his will for the benefit of another. Wicks v. Southern Pacific Co.,
231 F. 2d 130 (9th Cir. 1956). Involuntary servitude can only exist lawfully as a
punishment for crime of which the party shall have been duly convicted. Such is
the plain reading of the Constitution. A condition of enforced service, even for a
limited period, in the private business of another, is a condition of involuntary
servitude. Robertson v. Baldwin, 165 US 275 (1897).
The Supreme Court defines involuntary servitude as a condition of
servitude in which the victim is forced to work for [another] by the use or threat
of physical restraint or physical injury or by the use or threat of coercion
through law or the legal process. United States v. Kozminski 487 U.S. 931
(1988).
When the Commissioner issues an administrative determination voiding a
personal management contract ab initio and ordering the personal manager to
disgorge their compensation, the personal manager has no choices whatsoever to
avoid being subjected to involuntary servitude.
The TAA expressly states the 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. 1700.44(b) (emphasis added).
Indentured servitude can only exist lawfully in the United States as a
punishment for a crime of which the party shall have been duly convicted. Since
failure to obtain a the TAA license is not a criminal violation, the
Commissioners routine practice of voiding contracts ab initio and ordering the
disgorgement of past compensation without a provision of criminal penalty,
violates the involuntary servitude prohibition of the Thirteenth Amendment.
NCOPMs claim that such enforcement infringes on the rights of its members to
be free from involuntary servitude is therefore plausible.

29
In finding NCOPM did not state a claim for involuntary servitude in
violation of the Thirteenth Amendment, the District Court found Plaintiffs
members have choices: they could refrain from procuring employment for their
clients, to procure employment without a license and risk the voiding of parts of
their contracts, or to obtain a license. (ER, Vol. I, p. 8:23-26)
The Court, however, did not answer this important question: can ones
compensation for labor be forfeited without a finding of non-performance, fraud,
or conviction of a crime, without violating the Thirteenth Amendment, which
expressly forbids involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted? The Complaint alleges a
plausible case that the answer is no.
The District Court stated NCOPMs members have the option to obtain a
license. One might ask, Why doesnt a personal manager simply obtain a talent
agency license? First, persons of reasonable intelligence who recognize personal
management as a separate, yet incidentally connected to the occupation of talent
agent, so without statutory imperatives, would see no reason to acquire such a
license.
Furthermore, a personal manager applying for and granted a TAA license
would make them talent agents, eliminating their ability to be compensated when,
as is standard in the industry, they co-represent a client with a bona fide talent
agency. The major creative labor guilds limit compensation paid by a guild
member to a talent agent to 10% of the members earnings.
9
After the bona fide
agency is paid its standard 10%, there is no compensation available for the

9
See Marathon at 979: Artists Guilds bylaw restrictions typically include a cap on the commission
charged (generally 10 percent) (Screen Actors Guild, Codified Agency Regs., Rule 16(g); American
Federation of Television and Radio Artists, Regs. Governing Agents, rule 12-C; Matthau v. Superior
Court (2007) 151 Cal. App. 4
th
593, 596-597; Zelinski, Conflicts in the New Hollywood, So. Ca. L.
Rev., Vol. 76:979, pp. 989-990 (2003); Birdthistle, A Contested Ascendancy, 20 Loy. L.A. Ent. L. Rev.
493, p. 503 (2000).

30
personal manager if they are now licensed as a talent agency. Thus, the option of
a personal manager obtaining a talent agency license is not a real-world option.
C. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF DID
NOT STATE A CLAIM FOR VIOLATION OF THE COMMERCE
CLAUSE
NCOPM alleged the TAA, as written, in practical effect and as enforced,
violates the Commerce Clause of the U.S. Constitution, Art. 1 Sec. 8, (ER, Vol.
IV, pp. 188-190, 75-89) and Appellees, under color of law, have deprived
NCOPM and its members of their rights, privileges and immunities secured by
the Constitution in violation of the Commerce Clause (ER, Vol. IV, p. 188-190,
75-89). Dennis v. Higgins, 498 U.S. 439 (1991).
Art. 1 Sec. 8, of the U.S. Constitution grants Congress the power to
regulate Commerce among the several states. The Tenth Amendment to the
U.S. Constitution states: The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people. Derived from the Tenth Amendment and
established in Gibbons v. Ogden, 22 U.S. 1 (1824), the dormant Commerce
Clause doctrine expressly grants Congress the power to regulate interstate
commerce and prohibits states from passing legislation discriminating against or
directly burdening interstate commerce.
United States v. Lopez, 514 U.S. 549, 558 (1995) defined three broad
categories of activity subject to interstate commerce regulation: (1) the use of
the channels of interstate commerce; (2) the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat
may come only from intrastate activities; and (3) those activities having a
substantial relation to interstate commerce.

31
NCOPM and its members regularly use channels and instrumentalities of
interstate commerce, including cellular telephones (see United States v. Clayton,
108 F.3d 1114, 1117 (9th Cir. 1997)), telephone lines and the Internet (see U.S. v.
Sutcliffe, 505 F.3d 944, 952-53 (9
th
Circuit, 2007)).
The Commerce Clause applies when purely local activities that are part of
an economic class of activities have a substantial effect on interstate
commerce. Gonzales v. Raich, 545 U.S. 1, 2 (2005). Entertainment is a class
of activities with a substantial relation to interstate commerce. Entertainment
industry activities that have a substantial relation to interstate commerce include:
the production, distribution and exhibition of motion pictures, producing,
booking and presenting legitimate theatrical attractions and the booking and
presentation of vaudeville acts, even though individual showings of a film or
performance of a stage attraction is of course a local affair. United States v.
Schubert, 348 U.S. 222, 225-28 (1955).
Commerce Clause power may be exercised in individual cases without
showing any specific effect upon interstate commerce if in the aggregate the
economic activity in question would represent a general practice . . . subject to
federal control. Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-7 (2003).
The Court need not determine whether the activities of NCOPM and its
members taken in the aggregate, substantially affect interstate commerce in
fact, but only whether a rational basis exists for so concluding. Gonzales at 2.
NCOPM alleges the TAA discriminates against interstate commerce by limiting
the TAA licenses to only talent agencies with in-state premises, thus denying
licenses to non-residents with premises located wholly out-of-state.
The States traditional police power, also derived from the Tenth
Amendment, is the authority to provide for the public health, safety, and
morals. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991). It is a states

32
power to govern men and things within the limits of its dominion. License
Cases, 46 U.S. 504, 583 (1847) (emphasis added).
Section 1700.19 (b) requires the TAA License application to contain: A
designation of the city, street and number of the premises in which the licensee
is authorized to carry on the business of a talent agency and 1700.20 states,
No license shall protect any places other than those designated in the
license. In addition, 1700.12 (b) mandates an annual license fee of Fifty
dollars ($50) for each branch office maintained by the talent agency in this
state. (Emphasis added.)
As written, the TAA neither provides for the issuance of a License to an
applicant with an out-of-state business address nor requests identification of any
state location. A statute with particularity, and in plain, unambiguous
language, cannot be enlarged by construction to cover other cases omitted
through presumable inadvertence of the legislature. Iselin v. United States, 270
U.S. 245, 250 (1926).
The District Court found NCOPMs claim that only California residents may
obtain a talent agency license is weak and is not plausible in light of public
documents offered by Appellees (ER, Vol. I, p. 9:15-16). This finding was
incorrect because: (1) on a 12(b)(6) Motion, the district court only considers the
facts presented by a plaintiff, or judicially noticed; (2) the public documents
presented by Appellees
10
and accepted by the District Court as undeniable fact do
not show, as, Appellees allege, that there are TAA Licensees wholly located
in states other than California. (ER, Vol. IV, p. 166:1-4); and, (3) when

10
Appellees submitted a Premise Certification, which as part of a talent agents license
application, contains spaces for city, state and zip (ER, Vol. IV, pp. 165:25-166:01);
and the Commissioners talent agency license database.

33
genuine issues of material fact exist, it should not be resolved on a Motion
to Dismiss. FRCP Rule 12.
The Premise Certification (ER, Vol. III, p. 2) is an administrative
form prescribed by the Commissioner, not by the Legislature. The form
asks applicants for their State domicile, but that information is not mandated
by provision; thus it is ultra vires and not statutorily authorized.
Secondly, Appellees purported to submit twelve TAA Licensees who
allegedly had out-of-state addresses. (ER, Vol. III, pp. 86-91). However, each
of those Licensees has California residency status:
Digital Development Management Inc. (ER, Vol. III, pp. 86) has
offices in Burlingame, Los Angeles and San Diego.
(www.ddmagency.com)

Allensworth Entertainment Inc. (ER, Vol. III, pp. 87) has an office
in Beverly Hills. (See www.allensworthentertainment.com.)

Atlas Agency (ER, Vol. III, pp. 88) has an office in West
Hollywood. (www.atlastalent.com.)

CAMI Composer Management, LLC (ER, Vol. III, pp. 88) has a
booking representative in San Francisco. (www.cami.com.)

Common Chord LLC (ER, Vol. III, pp. 88) is a Florida limited
liability company whose principal is Sony Music Entertainment. (See
http://www.florida-annual-report.com/COMMON-CHORD-
LLC.html), a wholly owned subsidiary of Sony Corporation of
America, which has offices throughout California.
(www.sonymusic.com.)

Ford Models Inc. (ER, Vol. III, pp. 88) has an office in Los Angeles.
(www.fordmodels.com.)

IMG Talent Agency, Inc. (ER, Vol. III, pp. 88) has multiple offices
in Los Angeles and San Francisco. (www.icm.com.)


34
N. S. Bienstock Inc. (ER, Vol. III, pp. 88) has a resident agent in
Sacramento. (www.kepler.sos.ca.gov.)

Next Management, LLC (ER, Vol. III, pp. 88) has an office in
Beverly Hills. (www.nextmanagement.com.)

Mod Media Professional Talent Representation LLC (ER, Vol. III,
pp. 89), which no longer holds an active TAA license, has a resident
agent in Culver City. (www.kepler.sos.ca.gov.)

25 Live LLC (ER, Vol. III, pp. 90) is Florida-owned, by Word
Entertainment LLC (www. http://www.florida-companies-info.com).
Word Entertainment, LLC is co-owned by Warner Music Group and
Curb Records of Burbank.
(http://start.cortera.com/company/research/k7m7ssn6q/warner-music-
group-corp.)

Linda McAlister Talent (ER, Vol. III, pp. 91) has an office in
Pasadena. (www.lmtalent.com.)

All 719 TAA Licensees (as of October 1, 2013) on the Commissioners
database (http://www.dir.ca.gov/databases/dlselr/talag.htm) have instate
resident status; none are wholly domiciled outside of the State of California.
Unlike other California statutes and regulations governing licensing of
non-resident occupations and professions,
11
the TAA has no jurisdictional
definitions, State reciprocity agreements or any other provision for
licensing non-residents to carry on the occupation of a talent agency.
It is plausible inference that people of reasonable intelligence would
understand that TAA Licenses are neither available to, nor required of, non-
residents with an out-of-state business premise.

11
See CA Rules of Court 9.47, 9.48; California Business and Professions Code 7065.4; and
California Education Code, 44252, 44253.3, 44257, 44274.2, 44279.1, 44280, 44281, and
44282, and Title 5, California Code of Regulations, 80413.3.

35
Appellees claim the lack of an affirmative state residency requirement is
what makes the TAA constitutional. (ER, Vol. IV, p. 166:25) Just the opposite
is true: licensing non-residents to carry on the occupation of a talent agency at
wholly out-of-state domiciles violates the prohibition established in Pacific
Merchant Shipping Association v. Goldstene, 639 F.3d 1154, 1178 (9th Cir.
2011):
" the Commerce Clause prohibits state legislation regulating
commerce that takes place wholly outside of the state's borders,
regardless of whether the commerce has effects within the state.

NCOPM also claims the TAA discriminates against, and directly burdens,
interstate commerce by only allowing unlicensed parties to act in the negotiation
of an employment contract in conjunction with, and at the request of, a licensed
talent agency 1700.44 (d). (ER, Vol. IV, p. 190, 81).
In effect, any non-resident person or entity with a business premise located
wholly out-of-state (who is therefore, according to Pacific Merchant, ineligible
for a TAA License), even a talent agency licensed elsewhere, can enter the
California talent marketplace only with the consent of one of the 719 in-state
TAA Licensees. Conversely, the TAA in practical effect requires in-state
personal managers to use in-state licensed agents even when the managers client
is looking for employment opportunities outside California. (1700.44(d).)
By licensing the occupation of a talent agency at premises located only
within the State of California and permitting unlicensed parties to act in the
negotiation of an employment contract only in conjunction with, and at the
request of, a licensed talent agency, the TAA facially discriminates against, and
directly burdens, interstate commerce.
We have viewed with particular suspicion state statutes requiring
business operations to be performed in the home State that could more
efficiently be performed elsewhere. Pike v. Bruce Church, Inc. (1970)

36
397 U.S. 137, 145. New Yorks in-state presence requirement runs
contrary to our admonition that States cannot require an out-of-state
firm to become a resident in order to compete on equal terms.
Halliburton Oil Well Cementing Co v. Reily 373 U.S. 64, 72 (1963).

The mere fact of non-residence should not foreclose a producer in
one State from access to markets in other States. H. P. Hood & Sons,
Inc. v. Du Mond, 336 U.S. 525, 539 (1949). See also Ward v.
Maryland, 12 Wall. 418 (1871). Granholm v Heald 544 U.S. 460, 472
(2005).

States may not enact laws that burden out-of-state producers or
shippers simply to give a competitive advantage to in-state
businesses Granholm supra.

In Oregon Waste Sys., Inc. v. Dept. of Envir. Quality of Oregon, 511 U.S.
93, 93 (1994), the Court ruled:
The first step in analyzing a law under the negative Commerce
Clause is to determine whether it discriminates against, or regulates
evenhandedly with only incidental effects on, interstate commerce. If
the restriction is discriminatory i.e., favors in-state economic
interests over their out-of-state counterpartsit is virtually per se
invalid.

The TAA by its own terms violates the Oregon Waste proscription and
therefore is per se invalid.
The TAA also directly burdens interstate commerce by mandating an
annual license fee of $225.00 as a condition of carrying on the occupation of a
talent agency, which as a general practice involves channels, instrumentalities
and activities that have a substantial relation to interstate commerce.
We have repeatedly decided that a state law is unconstitutional
and void which requires a party to take out a license for carrying
on interstate commerce, no matter how specious the pretext may be
for imposing it. Crutcher v. Commonwealth of Kentucky, 141 U.S. 47,
58 (1891). (Emphasis added.)


37
"... no state has the right to lay a tax on interstate commerce in
any form, whether by way of duties laid on the transportation of the
subjects of that commerce, or on the receipts derived from that
transportation, or on the occupation or business of carrying it on, for
the reason that such taxation is a burden on that commerce, and
amounts to a regulation of it, which belongs solely to congress.'"
McCall v. People of The State of California, 136 U.S. 104, 107-108
(1890) (Emphasis added)

neither licenses nor indirect taxation of any kind, nor any
system of state regulation, can be imposed upon interstate, any more
than upon foreign, commerce, and that all acts of legislation producing
any such result are, to that extent, unconstitutional and void.
Crutcher at 62. (Emphasis added.)

We are aware of no decision by this court holding that a state
may, by any device or in any way, whether by a license tax in the
form of a fee, or otherwise, burden the interstate business
Western Union Telegraph Company v. State of Kansas on the Relation
of Coleman, 216 U.S. 1, 26 (1910). (Emphasis added.)

The Court rejected NCOPMs Commerce Clause claim in part because
Plaintiff does not allege any of its members were refused licenses because they
were located outside of California. (ER, Vol. I, p. 9:20-23). The Appellant made
no claim that any of its members were refused TAA licenses or engaged in the
occupation of a personal manager yet applied for a License to engage in the
occupation of a talent agency, an ancillary occupation but not the principal
business of a personal manager. NCOPM claims that accepting out-of-state
licensees, irrespective of profession, is unconstitutional.
This Court defined occupation in Schwartz v. Northern Life Ins. Co., 25
F.2d 555, 560 (9
th
Cir. 1928) as: the principal business of ones life employment
or calling and that which engages his attention and time as distinguished from
that which is incidentally connected with the life of men at any or all
occupations In Costello v. United States, 365 U.S. 265, 276 (1961), in
determining a persons occupation, the Court considered how he derived his

38
principal income, how he spent any appreciable time conducting his affairs
and whether he made it his central business concern.
Furthermore, as applied, the Commissioners administration and
enforcement of the TAA under color of law also discriminates against and
directly burdens interstate commerce, as shown in numerous TAA
Determinations.
In Martha Robi v. Howard Wolf, (TAC 29-00) (also see Yoo v. Robi, 126
Cal. App.4th 1089 (2005)), a personal manager who used out-of-state booking
agents to obtain work for The Platters at county and state fairs throughout the
Midwest was found to have violated the TAA by employing unlicensed out-of-
state talent agencies.
In Baker v. Bash, (TAC 12-96), singer Anita Bakers management contract
was voided after the Commissioner found the use of: (1) a New York-based live
bookings agency, the Associated Booking Corporation, co-founded by Louis
Armstrong and recognized as the premiere talent agency for urban artists; and (2)
a Paris-based agency for a French endorsement deal for singer Anita Baker
violated the TAA. Requiring in-state agency representation, as the Labor
Commission decreed in Wolf and Baker, when out-of-state agents are more
qualified to accomplish the objectives, puts up a protectionist barrier that clearly
violates the Commerce Clause. (See Pike supra.)
Just as the Commissioner has acknowledged in Determinations and as Chair
of the CEC the difficulty of ascertaining a clear line for procurement, the
Commissioner has acknowledged a TAA controversy can directly burden
interstate commerce. In Kelly Garner vs. Gillaroos, David Delorenzo, David
Gillaroos, Chris Wood, (TAC 1994-65), the Commissioner dismissed the
controversy acknowledging Respondents were engaged in interstate commerce
and Petitioner's claims arose precisely because of their involvement in interstate

39
commerce. The Commissioner declined to apply California's tolling provisions
against a non-resident engaged in interstate commerce.
Yet in James Breuer v. Top Drawer Entertainment, (TAC 18-95), the
Commissioner exercised jurisdiction over a New York-based personal manager
who arranged a Los Angeles showcase for his New York domiciled client that
resulted in the artist obtaining employment and moving to California to accept
such employment.
The TAA, both facially and as applied, impedes the flow of trade across
state lines and deprives out-of-state competitors of equal access to local markets
and therefore discriminates against NCOPM and its members and directly
burdens interstate commerce in violation of the Commerce Clause.
The finding that NCOPM did not state a plausible claim for violation of the
Commerce Clause was premature and erroneous. This Court should find the TAA
per se invalid or, in the alternative, reverse and remand this case to the District
Court.
D. THE DISTRICT COURT ERRED IN FINDING THE TAA
REGULATES CONDUCT AND NOT SPEECH
The District Court rejected NCOPMs claim that as a result of the TAAs
lack of specificity, personal managers wishing to avoid crossing the illusive line
between undefined lawful and unlawful conduct must restrict their speech to the
point where performing their contractual duties is all but impossible. The chilling
effect is far more than incidental; it implicates a significant public interest
preventing individuals to lawfully pursue life, liberty and property as a direct
result of unconstitutional interference by the Commissioner, far beyond the
authority granted by the Legislature.

40
The Courts finding on this mixed question of fact and law, that the TAA
only regulates conduct and does not regulate speech, made without the benefit
of a full record, fails to consider the real-world realities of how personal
managers actually carry out their daily duties. Most everything a manager does
for a client is facilitated and communicated via the spoken or written word. Other
than a handshake or a nod of the head, there is no conduct without speech that
can be cited let alone regulated that does not limit or silence a manager and
abridge their ability to perform their job for a client as agreed to by contract.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949), cited by
the District Court, is inapplicable. Giboney dealt with the efforts of the Ice and
Coal Drivers and Handlers Local Union 953 urging of non-union ice peddlers to
join the union, a violation of a Missouri criminal statute. It was not, as in the
present case, a question of whether the unconstitutional enforcement of laws that
do not exist prevented the performance of a vocation. The picketers sought to
force one holdout distributor to stop selling ice to non-union peddlers. The
picketing was deemed violative of a criminal statute, and the Court was unwilling
to extend any commercial speech protections to an extent that would support a
criminal act in restraint of trade.
Moreover, Giboney predates the Supreme Courts groundbreaking
development of the commercial speech doctrine. Twenty-seven years after
Giboney, the Court voided a statute that declared it unprofessional conduct for
a licensed pharmacist to advertise the prices of prescription drugs. Virginia State
Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
The Court held speech that does no more than propose a commercial transaction
is nonetheless of such social value as to be entitled to protection. Id. at 763-64.
State interests asserted supporting the ban, such as protection of professionalism

41
and the quality of prescription goods, were either badly served or served not at all
by the statute.
The primary function of personal managers is to maximize the quality and
quantity of their clients career opportunities. In doing so the manager proposes
commercial transactions in which the client is the beneficiary. These efforts are
facilitated via commercial speech and therefore should not be inhibited by the
vague and ambiguous language of the TAA.
Certainly there have been situations in which commercial speech has been
restrained. In distinguishing its ruling in Bates v. State Bar of Arizona, 433 U.S.
350, 356 (1977), the Court refused to extend the prohibition against in-person
solicitation by an attorney to solicitation by a certified public accountant,
explaining that CPAs, unlike attorneys, are not professionally trained in the art
of persuasion,'' and the typical business executive client of a CPA is far less
susceptible to manipulation.'' The state may only prohibit such speech if it is
false, deceptive or misleading. If it is not, the state can only restrict "commercial
speech" if it is shown the restriction directly and materially advances a
substantial state interest. Even in these situations, the state's restriction may be no
more extensive than is necessary to serve its interest. Ibanez v. Florida Dept. of
Business and Professional Regulation, 512, U.S. 136 (1994).
Personal managers are not attorneys. So as long as their speech is not false,
deceptive or misleading, California cannot offer any substantial state interest that
justifies the total restriction imposed on NCOPM and its members by the TAA.
The Court has developed a four-pronged test to measure the validity of restraints
upon commercial expression. Under the first prong, certain commercial speech is
not entitled to any protection; the informational function of advertising is at the
heart of the First Amendment. If it does not accurately inform the public about

42
lawful activity, it can be suppressed. Central Hudson Gas & Electric Co. v.
Public Service Commn, 447 U.S. 557, 563, 564 (1980).
Second, when speech is protected, the interest of the government in
regulating and limiting it must be assessed. The State must assert a substantial
interest to be achieved by restrictions on commercial speech. Id. at 568-69.
Third, the restriction cannot be sustained if it provides only ineffective or
remote support for the asserted purpose. Id at 569. The regulation must, directly
advance'' the governmental interest. Id. The Court resolves this issue with
reference to aggregate effects, and does not limit its consideration to effects on
the challenging litigant. United States v. Edge Broadcasting Co., 509 U.S. 418,
427 (1993).
Appellees claim the, [e]xploitation of artists by representatives has
remained the Acts central concern through subsequent incarnations to the
present day. (ER, Vol. IV, p. 153:16-17), Marathon at 984 citing Styne v.
Stevens 26 Cal. 4
th
42, 50 (2001). With respect, this is incorrect. Californias
Legislature created the statutes now known as the TAA to stop owners of
burlesque halls and bordellos from fronting as talent representatives to lure
ingnues to work for them. (See Zarin, The California Controversy over
Procuring Employment: A Case for the Personal Managers Act, Fordham Intell.
Prop. Media & Ent. L.J., Vol. 7 Is. 2, 943 (1997).)
To the best of NCOPMs knowledge, not one TAA controversy is based
upon claims that an employer masqueraded as an employment counselor to find
employees. TAA Petitions are not about a personal manager taking advantage of,
or exploiting, an artist, but almost without exception involve opportunistic artists
making the foundational claim that the successful efforts of their managers to
promote and further artists careers amounts to a harmful act for which the
artists may elect to withhold all compensation to which managers are otherwise

43
contractually entitled. California has never expressed an interest, let alone a
substantial interest, in punishing people for helping others to find gainful
employment as an actor, writer, musician or director.
Fourth, if the governmental interest could be served as well by a more
limited restriction on commercial speech, the excessive restriction cannot
survive. Central Hudson at 569-71. While the Court has rejected the idea that a
least restrictive means' test is required, what is necessary is a reasonable fit'
between means and ends, with the means narrowly tailored to achieve the
desired objective. Board of Trustees v. Fox, 492 U.S. 469, 480 (1989).
The restrictions on commercial speech imposed by the TAA cannot be saved
or justified. The enforced restriction limits efforts to procure a lawful commercial
transaction for that benefit of the Artist. The personal managers speech is being
expressed pursuant to an agreement between the client and the manager. The
managers efforts directly benefit the client who retains the ability to refuse any
such proposals generated as a result of the commercial speech.
NCOPM has stated a plausible claim that the TAA violates Commercial Free
Speech rights under the First Amendment. The District Courts finding that the
TAA regulates conduct and does not regulate speech is premature at best; in error
at worst. It must be reversed, or in the alternative, this matter should be remanded
to allow the NCOPM the opportunity to amend its Complaint.
E. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF FAILED
TO STATE A CLAIM FOR A VIOLATION OF THE CONTRACT
CLAUSE OF THE CONSTITUTION
Finding, Plaintiff does not allege that the law has been altered in any way
subsequent to the formation of a particular contract. Because Plaintiff points to
no contract in existence when the TAA was enacted or altered, Plaintiff has failed
to state a claim for a violation of the Contract Clause of the Constitution (ER,

44
Vol. I, p. 11:6-10) was a misunderstanding of NCOPMs claim. The Complaint
does not advance a facial, but an applied challenge to the TAAs constitutionality
under the Contracts Clause.
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 waived in deference to a States 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. Energy Reserves Group v.
Kansas Power & Light, 459 U.S. 400, 401 (1983). Here, there is no regulation,
only enforcement of unwritten provisions.
The Court laid out a three-part test for whether a law conforms to the
Contract Clause in Energy Reserves. First, the state regulation must not
substantially impair a contractual relationship. The TAA 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. 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 Acts legislative purpose.
NCOPM readily acknowledges the 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

45
of an illegal agreement or one against public policy'" Felix v. Zlotoff, 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. Id. 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 at 591-
592; Calwood Structures v. Herskovic (1980) 105 Cal.App.3d 519, 522.
Commenting on why courts are loath to void contracts, Calwood noted,
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 disproportionately harsh in relation to the
violation involved." Southfield v. Barrett 13 Cal.App.3d 290, 294
(1970) Calwood supra.

[F]orfeitures are not favored in law, and the 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). [N]or does this court favor the idea of giving one's
goods to another without compensation. Wood v. Krepps, 168 Cal 382, 387
(1914).
As stated above, the TAA controversies involving personal managers are
almost without fail initiated by artists that were benefited, not harmed, by their
representatives actions. There is no claim of moral turpitude; the payment of
compensation was completed for transactions between the parties and any

46
forfeiture unjustly enriched the artist and disproportionately penalized the person
working to achieve the artists professional objectives.
NCOPM stated a plausible claim that the enforcement of the TAA is in
violation of the Contracts Clause. The District Courts finding that NCOPM has
failed to state a plausible claim for a violation of the Contract Clause of the U. S.
Constitution is clearly in error and should be reversed.
F. THE DISTRICT COURT ERRED BY NOT CONSIDERING
PLAINTIFFS COMPLAINT IN ITS ENTIRETY
In Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308 (2007), the
USSC held on a Rule 12(b)(6) motion, courts must consider the complaint in its
entirety, as well as other sources courts ordinarily examine when ruling on Rule
12(b)(6) motions. The District Court erred by not considering NCOPMs
Complaint in its entirety, including these claims:
1. The vagueness of the TAA does not provide Plaintiff with notice as to
what specific behavior is to be restrained. It fails to state with
specificity who is subject to regulation and what acts specifically
constitute a violation of the Act. (ER, Vol. IV, p. 183, 34)
2. There is neither statutory nor constitutional foundation for Appellees
enforcement of the TAA. It is enforced as if there were codified
statutes restricting activity to licensees; there are not. (ER, Vol. IV, p.
184, 40)
3. Despite there not being a defined punishment or penalty for alleged
violation of the TAA or the Act expressly stating that no violation can
be considered criminal, the Commissioner routinely determines there
to be illegal behavior and disgorges the violators contractual rights to
be paid for their labor, a criminal penalty. (ER, Vol. IV, p. 184, 42)

47
4. The TAA fails to provide clear notice that: (1) anyone who attempts to
procure is being regulated, (2) clear notice that only those licensed as
talent agents may procure, and (3) clear notice of what the
consequence/penalty will be if one wrongly engages in the regulated
activity. (ER, Vol. IV, p. 185, 57)
5. The TAA fails to set forth with any ascertainable certainty who or
what person(s) are subject to the TAA restrictions. (ER, Vol. IV, p.
185, 58)
6. The Labor Commissions creation of remedies the states Legislature
withheld is against California law, unconstitutional as applied and
thus unconstitutional. If there is no notice of penalties, no penalties
can be meted out. (ER, Vol. IV, p. 186, 62)
7. As the enforcement of the TAA violates every tenet of statutory
construction, it is thus unconstitutional. (ER, Vol. IV, p. 187, 68)
8. As the enforcement disgorges ones compensation for labor without
claims of non-performance, fraud, or being duly convicted of a crime,
it is thus unconstitutional. ER, Vol. IV, p. 187, 68)

/ / /

48
X. CONCLUSION
The District Courts premature dismissal of the Complaint disregarded the
serious constitutional questions and the compelling public policy issues presented
in this case. NCOPM seeks a reversal of the District Courts Order, based on this
Courts finding that the TAA is facially unconstitutional or in the alternative to
remand this matter to the District Court with instructions to allow NCOPM the
opportunity to amend its Complaint.

Dated: October 8, 2013
Respectfully submitted,

STEPHEN F. ROHDE (SBN 51446)
ROHDE & VICTOROFF
1880 Century Park East, Suite 411
Los Angeles, CA 90067
Tel: (310) 277-1482
Fax: (310) 277-1485

RYAN H. FOWLER (SBN 227729)
CHRISTOPHER B. GOOD (SBN 232722)
FRANK W. FERGUSON II (SBN 211694)
FOWLER & GOOD LLP
15303 Ventura Blvd., 9
th
Floor
Sherman Oaks, CA 91403
Tel: (818) 302-3480
Fax: (818)279-2436

Attorneys for the Appellant
National Conference of Personal Managers Inc.

49
STATEMENT OF RELATED CASES
Pursuant to Circuit Rule 28-2.6, I state that I am not aware of any other cases
that are related to this appeal.

ROHDE & VICTOROFF
Tel: (310) 277-1482
Fax: (310) 277-1485

FOWLER & GOOD LLP
th
Floor
Tel: (818) 302-3480
Fax: (818)279-2436



50
CERTIFICATE OF COMPLIANCE

I hereby certify that this brief does not exceed the type-volume limitation
imposed by Federal Rules of Appellate Procedure 32(a)(7)(B). The brief was
prepared using Microsoft Word 2008 and contains 13,766 words of proportionally
spaced text. The typeface is Times New Roman, 14-point font.

ROHDE & VICTOROFF
Tel: (310) 277-1482
Fax: (310) 277-1485

FOWLER & GOOD LLP
th
Floor
Tel: (818) 302-3480
Fax: (818)279-2436



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