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Analysis of Reply Brief

Analysis of Reply Brief

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Published by rick7562
Rick Siegel makes an analysis of each of the issues raised by Defendants Governor/ Labor Commissioner/Attorney General in support of their motion to have the lawsuit dismissed.
Rick Siegel makes an analysis of each of the issues raised by Defendants Governor/ Labor Commissioner/Attorney General in support of their motion to have the lawsuit dismissed.

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Categories:Types, Business/Law
Published by: rick7562 on Feb 12, 2013
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12/14/2013

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ANALYSIS OF THE DEFENDANTS’ REPLY BRIEF SUPPORTING THEIR MOTION FOR DISMISSAL
The overriding theme of the Defendants’ defending the current enforcement of the Talent Agencies Act is that it has stood almost without change for decades, and precedent after precedent reaffirms its validity. This is in direct contrast to the Plaintiff’s overriding theme; that to discern whether the Act has been enforced aligned or misaligned to law, the Court must look at whether the precedents should be ignored because they follow the CA Labor Commissioner’s wrongful interpretation of the written statutes. The Defendants cite four reasons why the suit should be dismissed: (1) “
Violations of the Talent Agency Act (Act or TAA) can have civil consequences even if the statute lacks criminal or civil penalties.”
Just the idea of this is contrary to the fundamental need for notice: “…
in order for a consequence to be implied from a statute there must be greater justification for its inclusion than a consistency or compatibility with the act from which it is implied. A necessary implication within the meaning of the law is one that is so strong in its probability that the contrary thereof cannot reasonably be supposed.” Grubb & Ellis Co. v. Bello
,
19 Cal. App. 4th 231 (1993). "Elementary notions of fairness enshrined in this Court's constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose." (
 BMW of America v. Gore
 (1995) 517 U.S. 559, 574.)
 
"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;
 Lambert v. CA
. (1957) 355. U.S. 225, 228.) The Defendants cite 2001 and 2008 precedents to argue that despite the Plaintiff’s protestations, the TAA is remedial. But they conveniently omit that both those cases are founded upon
 Buchwald v. Katz,
 8 Cal.3d 493 (1972), a case decided when the Act had a penalty provision. That provision was removed temporarily in 1982 and permanently through codification in 1986, and there’s been no penalty provision in the Act ever since. (See
 Marathon v. Blasi
42 Cal. 4
th
 974, 985(2008); See Complaint, pg. 5, ln. 1 –  pg. 10, ln. 1 for legislative history.) Without a remedy, the TAA cannot be remedial: California prohibits administrative agencies from creating “a remedy which the Legislature withheld.”
 Dyna-Med, Inc. v. Fair Employment & Housing Comm.
, 43 Cal. 3d at 1385-1388 (1987). Similarly, as the Plaintiff predicted in their Answer brief, the Defendants offer no legislative or material evidence to support the quoted dicta, “the clear object of the Act is prevent improper persons from  becoming artists’ managers…” Every other state occupational scheme demands certification of education, apprenticeship and/or accomplishment. While the TAA has several statutes regulating an agent’s conduct, relationship with their client and record keeping, the TAA as written is completely silent as to qualifications, certifications or limitations of past indiscretions that would forfeit one’s right to obtain a talent agency license. Likewise, past requiring two affidavits from two people stating they “know
 
[the applicant] to be of good moral character (DLSE Affidavits of Character for Application for a Talent Agency License) and attesting as to whether there is a history of found criminality (without statement of whether that is a disqualification), there is no demand of any proof of qualification relevant to holding money in trust for clients or any other material issue. It is impossible to reconcile this lack of discernment to a finding that the Act in any way efforts to qualify applicants who request talent agent licensure.
(2) The opposition fails to show how the Governor or Attorney General is directly involved in the enforcement of the challenged statute, so it does not overcome their sovereign immunity.
The Federal Rules Of Civil Procedure require plaintiffs arguing the constitutionality of a state statute to name the state’s Governor and Attorney General as parties. If it is so plainly ingrained into our system of law that the Governor and Attorney General are to serve as defendants to such actions, it is not understandable why the Defendants are claiming such actions are improper.
3. The opposition ignores the fact that the TAA is enforced by private parties, in private disputes, where the Commissioner acts solely as a neutral adjudicator. Hence, there is no live controversy between plaintiff and the Commissioner.
 The Plaintiff’s foundational argument is that the Labor Commission wrongly ensnares personal managers into controversies and then punishes them for violating laws that do not exist. The defendants argue that because the act is silent as to remedy, it somehow, without reference in the Act itself, defaults the remedy to Civil Code 1599, which is the doctrine of Severability, where legal parts of a

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