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NCOPM Opposition to Motion To Dismiss

NCOPM Opposition to Motion To Dismiss

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Published by rick7562
NCOPM cites law to show that it the legal standard for a court to accept a controversy has been met; that the TAA can't be seen as remedial because there is no codified remedy; that the Act as enforced is not aligned with public concerns voiced in the legislative history or the public policy whereby admin agencies are barred from creating remedies their legislature has withheld; that the Act as enforced violates tenets of statutory construction, ejusdem generis and surplusage; that the Defendants have no 11th Amendment immunity; and that the Defendants' enforcement of the TAA violates two clauses of the 1st, the 5th, 8th, 13, and two clauses of the 14th Amendment of the United States Constitution.
NCOPM cites law to show that it the legal standard for a court to accept a controversy has been met; that the TAA can't be seen as remedial because there is no codified remedy; that the Act as enforced is not aligned with public concerns voiced in the legislative history or the public policy whereby admin agencies are barred from creating remedies their legislature has withheld; that the Act as enforced violates tenets of statutory construction, ejusdem generis and surplusage; that the Defendants have no 11th Amendment immunity; and that the Defendants' enforcement of the TAA violates two clauses of the 1st, the 5th, 8th, 13, and two clauses of the 14th Amendment of the United States Constitution.

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Categories:Types, Business/Law
Published by: rick7562 on Feb 01, 2013
Copyright:Attribution Non-commercial

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02/01/2013

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1 OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
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RYAN H. FOWLER (SBN 227729) rfowler@fowlergood.com CHRISTOPHER B. GOOD (SBN 232722) cgood@fowlergood.com FRANK W. FERGUSON, II (SBN211694)  bferguson@fowlergood.com
FOWLER & GOOD LLP
15303 Ventura Blvd., 9
th
 Floor Sherman Oaks, CA 91403 Telephone: (818) 302-3480 Facsimile: (818) 279-2436 Attorneys for Plaintiff National Conference of Personal Managers UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ATIONAL CONFERENCE OF PERSONAL MANAGERS, a NEVADA non-for-profit corporation Plaintiff, Vs. EDMUND G. BROWN, JR. Governor of the State of California,
in his official capacity
; KAMALA D. HARRIS, Attorney General of California
in her official capacity
; California Labor Commissioner JULIE A. SU,
 in her official capacity
 and Does 1-10 Defendants. Cv Case No.
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
COMES NOW Plaintiff, and herewith provides its Opposition to Defendants’ Motion to Dismiss Plaintiff’s complaint. Plaintiff also objects to Defendants’ request of this Court to take judicial notice of the documents and information offered by Defendants.
 
 
2
OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
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INTRODUCTION
In the entertainment industry, the artist is both the Chairman of the Board of his/her business and also the product, like being both Microsoft and Bill Gates. Personal managers serve as the Chief Executive Officer of and for the artist, overseeing and working with the artist’s publicist (VP of public relations), business manager (VP of finance), transactional attorney (VP of business affairs), and talent agents (VP’s of sales).
1
 It is patently absurd for a chief executive officer of an entity to be barred from getting involved in the company’s creation of revenue. Yet due to the interpretation and enforcement of California’s Talent Agencies Act (TAA) by the state’s Labor Commissioner, personal managers are forced to sublimate that instinct. However, no matter how hard the effort to separate the direction and counseling functions from  procurement, there are always actions that personal managers must perform to fulfill their contractual duties and obligations put them in jeopardy, especially as the occupational scheme offers no guidance on this issue and the interpretation and enforcement of the Act by the Defendants is inconsistent.
2
 A personal manager properly executing their responsibilities is threatened by this enforcement on a round-the-clock basis. Should a 1AM phone call come in  because a job opened up that begins later that morning, the manager must decide either to negotiate and procure the opportunity or abide by the letter of the law as enforced and ignore the reason the manager was hired: to maximize the quality and quantity of their client’s career opportunities. Even in normal circumstances, a personal manager looking out for the welfare of a client is always at risk of that client later utilizing the Defendants’ enforcement
1
 A single artist may have several agents; individual representatives for film, television, literary, music,  publishing, voiceovers, speaking engagements and personal appearances.
2
 
If allowed to present argument in full, Plaintiff will cite TAA determinations where the same actions are alternately found lawful in one instance and unlawful in another.
 
 
 
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OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
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of the Act to the manager’s detriment. In determinations compromising a personal manager, the Labor Commission itself has written of the need to ascertain a bright line of what an unlicensed talent representative can and cannot do.
3
 This risk is infinitely greater for a talent representative – any talent representative, including a talent agent domiciled outside of California and licensed  by the state where they work and reside.
4
 Before setting up an audition that could lead to work in a California based TV series or film, the out-of-state rep either has to convince their client to add to their financial burden by taking on a licensed in-state agent, which could in time lead to the client’s leaving the ‘regional representative’, or be unable to defend themselves if that job is procured and the client, now working in California, chooses to use the Act as a method of avoiding their otherwise-owed obligation. Plaintiff has filed suit, having no other means of seeking a hearing and  possible redress for grievances that have and continue to result in ongoing and future financial damages. The basis for this action is Plaintiff’s belief that the TAA, §§ 1700
et seq.
 of the California Labor Code, is in direct violation of multiple  provisions of the United States Constitution. Plaintiff brings this Opposition in the hope this Court will allow Plaintiff to  proceed and for the issues raised in Plaintiff’s complaint to be fully explored and scrutinized. Plaintiff has named these Defendants solely based on Plaintiff’s good faith belief that each plays an important part in the development, implementation and enforcement of the TAA. Each Defendant possesses the influence and legal capacity to abolish or correct wrongful and/or unconstitutional enforcement of state statutes; and each has a responsibility to ensure no one is compromised by
3
 
If allowed to present argument in full, Plaintiff will cite TAA determinations where the presiding officer rued the lack of certainty as to when a violation of the Act has occurred.
 
4
 
Florida is the only other state that has a separate licensing scheme for talent agents; a few others put the occupation of talent agent under the employment agency licensing umbrella.

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