National Conference of Peronal Managers Inc v. Edmund G Brown Jr et al

Filing 27

ORDER GRANTING MOTION TO DISMISS 11 , 14 IN ACCORDANCE WITH THE MANDATE OF NINTH CIRCUIT COURT OF APPEALS 25 by Judge Dean D. Pregerson: The Court finds that, while Plaintiff has standing and has appropriately sued the Labor Commissioner, Plaintiff has failed to state a claim. For these reasons, the motion to dismiss is GRANTED. Because any amendment would be futile, the Court grants the Motion with prejudice. (lc). Modified on 8/13/2015. (lc).

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[CLOSED]

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NATIONAL CONFERENCE OF
PERSONAL MANAGERS, INC., a
Nevada non-for-profit
corporation,

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Plaintiff,
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v.
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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; JULIE A. SU,
California Labor
Commissioner, in her
official capacity,
Defendants.
___________________________

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Case No. CV 12-09620 DDP (RZx)
ORDER GRANTING MOTION TO DISMISS
IN ACCORDANCE WITH THE MANDATE OF
NINTH CIRCUIT COURT OF APPEALS
[Dkt. Nos. 11, 24]

Presently before the Court is a motion to dismiss Plaintiff’s

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Complaint brought by Defendants Edmund G. Brown, Jr., Governor of

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the State of California, in his official capacity (the “Governor”);

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Kamala D. Harris, Attorney General of California, in her official

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capacity (the “Attorney General”); and Julie A. Su, California

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Labor Commissioner, in her official capacity (the “Labor

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Commissioner”).

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that order was vacated by the Ninth Circuit and remanded with

3

instructions to rule on certain jurisdictional and case-or-

4

controversy questions.

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Circuit panel vacating previous order and remanding).)

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therefore resumes consideration of the motion in this order.

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I.

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9

Although the Court previously ruled on the motion,

(See Dkt. No. 24 (memorandum of the Ninth
The Court

BACKGROUND
Plaintiff National Conference of Personal Managers, Inc. is a

national trade association of United States citizens employed as

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personal managers who provide representation to “artists” as

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defined in Cal. Labor Code § 1700.4(b).

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explained in Plaintiff’s Opposition papers, a personal manager

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oversees the work of others working for the artist, such as the

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publicist, business manager, transactional attorney, and various

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talent agents.1 (Opp. at 2.)

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(Compl. ¶ 10.)

As

California’s Talent Agencies Act (“TAA”) provides that “[n]o

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person shall engage in or carry on the occupation of a talent

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agency without first procuring a license therefor from the Labor

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Commissioner.”

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defined as “a person or corporation who engages in the occupation

Cal. Labor Code § 1700.5.

A “[t]alent agency” is

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26
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The California Supreme Court has explained:

Agents procure roles; they put artists on the screen, on
the stage, behind the camera; indeed, by law, only they
may do so. Managers coordinate everything else; they
counsel and advise, take care of business arrangements,
and chart the course of an artist's career.
This division largely exists only in theory. The reality
is not nearly so neat. The line dividing the functions of
agents, who must be licensed, and of managers, who need
not be, is often blurred and sometimes crossed.
Marathon Ent., Inc. v. Blasi, 42 Cal. 4th 974, 980 (2008).
2

1

of procuring, offering, promising, or attempting to procure

2

employment or engagements for an artist or artists . . . .”

3

Labor Code § 1700.4.

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artist without a license, the Labor Commissioner is empowered to

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void the contract.

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Cal.

If a person has procured employment for an

(Compl. ¶ 38.)

The California Supreme Court case Marathon Ent., Inc v. Blasi

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demonstrates how the TAA functions.

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There, Marathon, a personal manager, sued Rosa Blasi, an actress,

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for its commission on her earnings from a television show, alleging

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that Blasi had reneged on her oral agreement to pay a commission on

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her employment earnings.

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action and filed a petition with the Labor Commissioner, alleging

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that Marathon had violated the TAA by procuring employment for her

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without a talent agency license.

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voided the contract.

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ruling to the superior court.

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appeals, the California Supreme Court held that the TAA does apply

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to personal managers and that personal managers may not recover

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fees for employment procured in violation of the TAA.

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It affirmed the court of appeal’s decision, which had severed and

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voided the illegal portion of the contract only.

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Id.

42 Cal. 4th 974 (2008).

Id. at 981.

Id.

Blasi obtained a stay of the

The Commissioner agreed and

Marathon appealed the Commissioner’s
Id. at 981-82.

After a series of

Id. at 986.

Id. at 982.

Plaintiff challenges the constitutionality of the TAA on

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several grounds.

Plaintiff asserts that its members do not have

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notice of which acts they can or cannot perform for its clients

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without obtaining a license.

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unconstitutionally vague because it does not define “procure

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employment,” that it results in involuntary servitude because

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Plaintiff is not properly compensated for its labor in violation of

It alleges that the TAA is

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1

the Thirteenth Amendment, that it interferes with interstate

2

commerce because it discriminates against out-of-state personal

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managers in violation of the Commerce Clause, and that it restricts

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Plaintiff’s commercial speech in violation of the First Amendment.

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Defendants moved to dismiss on the grounds that the Governor

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and Attorney General have sovereign immunity, no case or

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controversy exists with the Labor Commissioner, Plaintiff lacks

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standing, and the Complaint fails on the merits.

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the Court granted Defendants’ Motion to Dismiss on the merits after

On March 5, 2013,

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finding that the Plaintiff “likely has standing,” that the Labor

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Commissioner “was likely the appropriate party to sue,” and that

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the Governor and Attorney General “likely have sovereign immunity.”

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(Dkt. No. 17.)

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On March 6, 2015, the Ninth Circuit vacated the Court’s order

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and remanded for a determination of the jurisdictional and standing

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issues.

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II. LEGAL STANDARD

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(Dkt. No. 24.)

A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

20

relief that is plausible on its face.”

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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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“accept as true all allegations of material fact and must construe

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those facts in the light most favorable to the plaintiff.”

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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need not include “detailed factual allegations,” it must offer

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“more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.”

Ashcroft v. Iqbal, 556 U.S.

When considering a Rule 12(b)(6) motion, a court must

Iqbal, 556 U.S. at 678.
4

Resnick

Although a complaint

Conclusory allegations or

1

allegations that are no more than a statement of a legal conclusion

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“are not entitled to the assumption of truth.” Id. at 679.

3

other words, a pleading that merely offers “labels and

4

conclusions,” a “formulaic recitation of the elements,” or “naked

5

assertions” will not be sufficient to state a claim upon which

6

relief can be granted.

7

quotation marks omitted).

8
9

In

Id. at 678 (citations and internal

“When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they

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plausibly give rise to an entitlement of relief.”

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Plaintiffs must allege “plausible grounds to infer” that their

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claims rise “above the speculative level.”

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555. “Determining whether a complaint states a plausible claim for

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relief” is a “context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense.”

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556 U.S. at 679.

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III. DISCUSSION

Id. at 679.

Twombly, 550 U.S. at

Iqbal,

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A. Jurisdiction

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Defendants argue that the Governor and the Attorney General

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have sovereign immunity and that no case or controversy exists

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between Plaintiff and the Labor Commissioner. They also assert that

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Plaintiff does not have standing to bring the case.

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finds that the Governor and Attorney General have sovereign

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immunity.

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appropriate party to sue for her non-adjudicatory acts and that

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Plaintiff has standing to bring its claims.

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The Court

The Court also finds that the Labor Commissioner was the

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1. Governor and Attorney General
Federal courts can adjudicate only those cases that the

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Constitution and Congress authorize them to adjudicate.

4

United States, 490 U.S. 545, 558-59 (1990).

5

Rules of Civil Procedure, the court must dismiss an action if it

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determines “at any time” that it lacks subject matter jurisdiction.

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Fed. R. Civ. P. 12(h).

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9

Finley v.

Under the Federal

With certain exceptions, the Eleventh Amendment has been
construed to bar an action brought in federal court by a private

10

person against a state or a state agency.

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U.S. 651, 662-63 (1974); Alabama v. Pugh, 438 U.S. 781, 782 (1978).

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One such exception permits suits brought against named state

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officials in which the plaintiff seeks prospective relief.

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v. Jordan, 440 U.S. 332, 337 (1979).

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Edelman v. Jordan, 415

Quern

To sue a state official under this exception, the official

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“must have some connection with the enforcement of the act, or else

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it is merely making him a party as a representative of the state,

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and thereby attempting to make the state a party.”

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209 U.S. 123, 157 (1908).

20

Davis, 307 F.3d 835, 846-47 (9th Cir. 2002)(when seeking to enjoin

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the enforcement of a statute banning certain animal traps, a suit

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against the Governor and the Secretary of Resources was barred

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because there was “no showing that they have the requisite

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enforcement connection,” but a suit against the Director of the

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California Department of Fish & Game, who had “direct authority

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over and principal responsibility for enforcing” the statute, was

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not barred).

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200 F.3d 614, 619 (9th Cir. 1999) (finding that the Attorney

Ex Parte Young,

See, e.g., Nat’l Audubon Soc’y, Inc. v.

Cf. Culinary Workers Union, Local 226 v. Del Papa,

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General’s cease and desist letter, which threatened to refer

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information about violations to prosecutors, established sufficient

3

connection with the enforcement of the statute).

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Here, the Governor and Attorney General are not alleged to

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have any specific connection to the enforcement of the TAA.

The

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Complaint states that the Governor is “responsible for executing

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the laws of California” and that the Attorney General is “the

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‘chief law officer of the State,’ with a duty to ‘see that the laws

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of the State are uniformly and adequately enforced.’”

(Compl.

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¶¶ 12-13.)

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TAA (or any bill) into law, he should have ordered an investigation

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of the legality and constitutionality of the law.”

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Because the Attorney General is “obligated to recognize any

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deficiencies in state law . . . and to work to end such wrongful

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enforcement,” she is “either actively or passively allowing an

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unconstitutional enforcement on the people of California.”

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Plaintiff claims that “before the Governor signed the

(Opp. at 17.)

(Id.)

However, these allegations of general enforcement of laws do

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not establish the “requisite enforcement connection” between the

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defendants and the TAA.

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47; see also Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992)

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(per curiam) (“We doubt that the general supervisory powers of the

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California Attorney General are sufficient to establish the

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connection with enforcement required by Ex parte Young”).

See Nat’l Audubon Soc’y, 307 F.3d at 846-

The Court finds that these general duties do not establish a

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sufficient connection between the Governor or the Attorney General

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and the enforcement of the TAA to meet the requirements of Ex Parte

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Young.

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2. Labor Commissioner
Unlike the Governor and the Attorney General, the Labor

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Commissioner has particular responsibility in the enforcement of

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the TAA.

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1700.3), accept license applications (§ 1700.6), perform

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investigations in relation to licenses (§ 1700.7), collect the bond

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for licenses (§ 1700.15), and revoke and suspend licenses

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(§ 1700.21).

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regulations as are reasonably necessary” to enforce the TAA

She has the authority and duty to issue licenses (§

She may “adopt, amend, and repeal such rules and

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(§ 1700.29).

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Parte Young analysis, as she has “some connection with the

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enforcement of the act.”

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Plaintiffs allege that the Labor Commissioner is responsible for

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applying, enforcing, and interpreting the TAA in a way that

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violates their rights.

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She therefore is the proper party to sue under the Ex

Ex Parte Young, 209 U.S. at 157.

(Compl. ¶¶ 1, 14.)

Section 1983 creates a civil cause of action for the

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“deprivation of any rights, privileges, or immunities secured by

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the Constitution and laws” by any person acting “under color of any

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statute, ordinance, [or] regulation.”

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Injunctive relief shall not be granted “in any action brought

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against a judicial officer for an act or omission taken in such

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officer’s judicial capacity,” unless declaratory relief is

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unavailable or a declaratory decree was violated.

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ordinarily, no ‘case or controversy’ exists between a judge who

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adjudicates claims under a statute and a litigant who attacks the

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constitutionality of the statute.”

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148 (9th Cir. 1994) (quoting In re Justices of Supreme Court of

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Puerto Rico, 695 F.2d 17, 21 (1st Cir. 1982).
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42 U.S.C. § 1983.

Id.

“[A]t least

Grant v. Johnson, 15 F.3d 146,

Thus, “judges

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adjudicating cases pursuant to state statutes may not be sued under

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§ 1983 in a suit challenging [a] state law.” Id.

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Defendants argue that the Labor Commissioner “acts in a quasi-

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judicial capacity” and therefore may not be sued for injunctive

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relief under section 1983.

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acts “solely as an adjudicator in disputes involving the TAA, and

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otherwise exercises no regulatory authority over personal

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managers.” (MTD at 10.)

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the matters in dispute shall be referred to the Labor Commissioner,

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“who shall hear and determine the same, subject to an appeal within

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10 days after determination, to the superior court where the same

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shall be heard de novo.”

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appeal is not timely filed, the Commissioner’s determination is

14

final and binding.

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(citing REO Broad. Consultants v. Martin, 81 Cal. Rptr. 2d 639,

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642-643 (Ct. App. 1999)).

17

(MTD at 9.)

The Labor Commissioner

When a controversy arises under the TAA,

Cal. Labor Code § 1700.44(a).

If an

Preston v. Ferrer, 552 U.S. 346, 355 (2008)

However, it is not clear that these adjudicatory functions are

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the sole basis for Plaintiff’s suit.

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particular controversy is an adjudicatory decision, the Labor

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Commissioner’s role in establishing the parameters of such

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proceedings and relevant regulations is not adjudicatory, but

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instead part of her function as an agency executive.

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Plaintiff alleges that the Labor Commissioner is responsible for

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licensing, for her “wrongful interpretation that the Act restricts

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any activity relevant to procurement,” and for her discrimination

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against out-of-state participants in the entertainment industry by

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not allowing licenses for non-Californians.

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9

Though a decision on a

Additionally,

(Compl. ¶¶ 69, 80.)

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Although the Complaint is not explicit in its factual

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allegations pertaining to the Labor Commissioner’s non-adjudicatory

3

functions, the Court finds that the Labor Commissioner is the

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appropriate party to sue in such a case.

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3. Standing
The federal judiciary can hear cases involving a controversy

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arising under the Constitution or other laws of the United States.

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U.S. Const. art. III, § 2, cl. 1.

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substantial” and “definite and concrete, touching the legal

A controversy must be “real and

10

relations of parties having adverse legal interests.” Aetna Life

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Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41

12

(1937).

13

standing:

Three requirements must be met to establish Article III

14

(1) injury in fact, which means an invasion of a legally

15

protected interest that is (a) concrete and particularized,

16

and

17

hypothetical; (2) a causal relationship between the injury

18

and the challenged conduct, which means that the injury

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fairly can be traced to the challenged action of the

20

defendant, and has not resulted from the independent action

21

of some third party not before the court; and (3) a

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likelihood that the injury will be redressed by a favorable

23

decision, which means that the prospect of obtaining relief

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from the injury as a result of a favorable ruling is not

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too speculative.

(b)

actual

or

imminent,

not

conjectural

26

Bras v. Cal. Pub. Util. Comn’n, 59 F.3d 869, 872 (9th Cir.

27

1995)(citing

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(1992)).

or

Lujan v. Defenders of Wildlife, 504 U.S. 555, 559

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1

To obtain declaratory and injunctive relief, a Plaintiff must

2

“show a very significant possibility of future harm in order to

3

have standing.”

4

statute that “may or may not ever be applied to plaintiffs” is

5

insufficient to establish a case or controversy for the purposes of

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Article III or the Declaratory Judgment Act.

7

Watt, 643 F.2d 618, 627 (9th Cir. 1981).

8
9

Bras, 59 F.3d at 873.

The “mere existence” of a

W. Mining Council v.

Defendants argue that the TAA is not generally applied to
Plaintiff because the “activities for which a license is required

10

. . . are not an inherent part of the functions for which personal

11

managers contract with artists.” (MTD at 15.)

12

clear dividing line between the roles of talent agencies and

13

managers; the line is “often blurred and sometimes crossed.”

14

Blasi, 42 Cal. 4th at 980.

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managers sometimes procure work.

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procurement of employment opportunities may be standard operating

17

procedure for many managers and an understood goal when

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not-yet-established talents . . . hire managers to promote their

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careers.”

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coordinate” an artist’s career and “advise in both business and

21

personal matters.” Id. at 984 (citing Park v. Deftones, 71 Cal.

22

App. 4th 1465, 1469-1470 (1999)).

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personal managers engage in conduct that is considered procuring

24

employment, the TAA is appropriately applied to managers.

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at 986-89.

Id.

However, there is no

“Agents sometimes counsel and advise;
Indeed, the occasional

Personal managers “advise, counsel, direct, and

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11

Therefore, to the extent that

See id.

1

Defendants argue that Plaintiff has not alleged an actual

2

injury suffered as a result of the Labor Commissioner’s conduct.2

3

(MTD at 14.)

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members are “actually and directly impacted by the TAA and the

5

manner in which it has been applied.” (Compl. ¶ 10.)

6

alleges that it has been “unfairly singled out without due process

7

and denied its ability to pursue lawful business opportunities to

8

the detriment of Plaintiff and the Artists that it represents.”

9

(Compl. ¶ 33.)

The Complaint generally asserts that Plaintiff’s

Plaintiff

Plaintiff also makes a conclusory allegation that

10

“Defendants’ wrongful enforcement has destroyed careers, ruined,

11

even shortened lives.” (Opp. at 10.)

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that any one of its members has actually been engaged in a dispute

13

that has been referred to the Labor Commissioner, and it is not

14

clear if the Labor Commissioner will imminently determine a

15

controversy against Plaintiff’s members.

16

Plaintiff has not alleged

However, “a real and reasonable apprehension that [a

17

plaintiff] will be subject to liability” creates a case or

18

controversy suitable to seek declaratory relief that a patent is

19

invalid.

20

Co., 655 F.2d 938, 944 (9th Cir. 1981).

21

must cause the apprehension.

22

Feiner and Co., 896 F.2d 1542, 1556 (9th Cir. 1989).

23

of apprehension “need not be substantial” if the plaintiff is

Societe de Conditionnement en Aluminium v. Hunter Eng’g
The defendant’s actions

Hal Roach Studios, Inc. v. Richard
The showing

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25
2

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27
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Defendants do not address the existence of a case or
controversy between Plaintiff and the Governor and Attorney
General, concentrating instead on Eleventh Amendment immunity.
Because the Court agrees that the Governor and Attorney General
were not appropriate parties under Ex Parte Young, Plaintiff’s
standing will be addressed solely as to the Labor Commissioner.
12

1

engaged in an ongoing activity that could be a violation.

2

Id.

(citing Societe de Conditionnement, 655 F.2d at 944).

3

By comparison here, Plaintiff has a “real and reasonable

4

apprehension” that its members will be subject to liability if they

5

do not receive a declaration that the TAA is unconstitutional. (See

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Compl. ¶ 44.)

7

have indeed faced liability because of the Labor Commissioner’s

8

actions.

9

4357854, at *2 (Cal. Ct. App. September 20, 2011) (“The other two

Prior cases reveal that other unlicensed parties

See Marathon Ent., Inc. v. Fox & Spillane, LLP, 2011 WL

10

matters were heard by the Labor Commission, and eventually

11

proceeded to trial.”); Blasi, 42 Cal.4th at 981 (“the Commissioner

12

voided the parties’ contract ab initio and barred [the manager]

13

from recovery”).

14

personal managers’ professional responsibilities, its members are

15

“threatened by this enforcement on a round-the-clock basis” and are

16

“always at risk” of enforcement to their detriment. (Opp. at 2-3.)

17

Plaintiff asserts that, due to the nature of

Defendants assert that even if the Labor Commissioner were

18

enjoined from enforcing the TAA, a contract made in violation of

19

the TAA would still be voidable as contrary to public policy, and

20

thus the remedy that Plaintiff seeks would not provide proper

21

redress. (MTD at 14.)

22

The Court disagrees that declaratory or injunctive relief

23

would not resolve Plaintiff’s injury.

24

TAA, there is no cause of action for procuring employment without a

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talent agency license.

26

for breach, unconscionablility, or public policy reasons, but that

27

is true with or without enforcement of the TAA.

28

seeking to avoid liability for those causes of action.

Without enforcement of the

Individual contract claims can be brought

13

Plaintiff is not
Declaratory

1

and injunctive relief, as Plaintiff seeks (Compl., Prayer ¶¶ 1-5),

2

will provide redress for the injury claimed. (See Compl.

3

¶¶ 10, 33.)

4

The Court finds that there is a case or controversy and that

5

Plaintiff has standing to bring suit against the Labor

6

Commissioner.

7

Plaintiff’s claims.

The Court therefore addresses the merits of

8

B. Vagueness

9

Plaintiff makes a facial challenge to § 1700.44, alleging that

10

its failure to define the meaning of “procure employment” renders

11

the statute unconstitutionally vague in violation of the Fourteenth

12

Amendment.

13

never been defined by any court.

14

such activity may or not have occurred has left Plaintiff uncertain

15

and highly apprehensive about the permissible parameters of its

16

daily activity.”

17

Plaintiff alleges that “‘[p]rocure employment’ has
The uncertainty of knowing when

(Compl. ¶ 59.)

A law is not unconstitutionally vague if it provides a “person

18

of ordinary intelligence a reasonable opportunity to know what is

19

prohibited, so that he may act accordingly.”

20

Rockford, 408 U.S. 104, 108 (1972).

21

a term in a statute, we construe that term according to its

22

ordinary, contemporary, common meaning.”

23

Inc. v. Brumsickle, 624 F.3d 990, 1021 (9th Cir. 2010) (quoting

24

United States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009)).

25

statute may be unconstitutional if it “is so standardless that it

26

authorizes or encourages seriously discriminatory enforcement.”

27

Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2718 (2010)

28

(quoting United States v. Williams, 553 U.S. 285, 304 (2008)).
14

Grayned v. City of

“When Congress does not define

Human Life of Washington

A

1

Plaintiff has not made any allegations that suggest that the

2

statute is standardless.

3

“[a]lmost any act undertaken by Plaintiff, even as innocuous as

4

helping choose a headshot, could and has been linked to the

5

ultimate goal of any artist represented by Plaintiff to get a job.”

6

(Opp. at 20.)

7

the Complaint, indicates only that the phrase “procure employment”

8

could be interpreted so as to comprise a broad range of activities,

9

broader than is desirable in the eyes of Plaintiff.

In its Opposition, Plaintiff claims that

However, this allegation, which does not appear in

This breadth

10

does not render the statute standardless; it may indicate that the

11

activities of personal managers and talent agents have significant

12

overlap with respect to procuring employment for artists.

13

Even if such an allegation were sufficient to be the basis for

14

a claim that the statute is standardless, it is not sufficient to

15

state a claim when California courts have previously interpreted

16

the phrase and determined that its meaning is not vague.

17

‘procure’ means ‘to get possession of: obtain, acquire, to cause to

18

happen or be done; bring about.”

19

616, 628-29 (1993)(quoting Webster’s New Int’l Dict. (3d Ed. 1981)

20

at p. 1809).

21

sense.

22

‘procure’ in connection with employment is used in numerous

23

California statutes. The fact none of these statutes has ever been

24

challenged is some evidence the term is well understood.”

25

(footnote omitted).

26

“To

Wachs v. Curry, 13 Cal. App. 4th

The TAA uses the word “procure” in this ordinary

The California Court of Appeal pointed out that “[t]he term

Id.

The Court finds that the TAA is not unconstitutionally vague.

27

///

28

///
15

1

C. Thirteenth Amendment

2

The Thirteenth Amendment is “an absolute declaration that

3

slavery or involuntary servitude shall not exist in any part of the

4

United States.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438

5

(1968) (quoting Civil Rights Cases, 109 U.S. 3, 20 (1883)). The

6

Supreme Court has traditionally found involuntary servitude to

7

exist only where “the victim had no available choice but to work or

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be subject to legal sanction.” United States v. Kozminski, 487 U.S.

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931, 943 (1988).

See also, e.g., United States v. Reynolds, 235

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U.S. 133 (1914) (finding that a criminal surety system imposing

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criminal sanctions on those who failed to work off a debt

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constituted involuntary servitude ); Clyatt v. United States, 197

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U.S. 207, 218 (1905) (finding that the state of peonage, in which

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the threat of legal sanction coerces a debtor to work off a debt,

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constitutes involuntary servitude).

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To prove compulsion, the plaintiff must show that he had, or

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believed he had, no choice but to continue his state of servitude.

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See Kozminski, 487 U.S. at 963 (Brennan, J., concurring) (requiring

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the plaintiff to show that he or she “actually felt compelled to

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live in a slavelike condition of servitude”); United States v.

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Shackney, 333 F.2d 475, 486 (2d Cir. 1964) (requiring the plaintiff

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to show that he had, or believed he had, “no way to avoid continued

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service or confinement”); Watson v. Graves, 909 F.2d 1549, 1552

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(5th Cir. 1990) (stating that “[w]hen the employee has a choice,

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even though it is a painful one, there is no involuntary

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servitude.”) Upon demonstrating compulsion, it is for the trier of

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fact to decide “whether the physical or legal coercion or threats

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thereof could plausibly have compelled the victim to serve.” United
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1

States v. Veerapol, 312 F.3d 1128, 1132 (2002) (quoting Kozminksi,

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487 U.S. at 952) (O’Connor, J., majority)).

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Here, Plaintiff alleges that the enforcement of the TAA

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infringes on its right to be free from involuntary servitude except

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as punishment for a crime.

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that its unlicensed members are subject to involuntary servitude

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when they are denied a commission due to the voiding of their

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contracts by the Labor Commissioner.

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being compensated for work performed does not inevitably make that

(Compl. ¶¶ 66-74.)

Plaintiff alleges

Plaintiff is incorrect.

Not

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work involuntary servitude.

Plaintiff’s members have choices.

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They have the choice to refrain from procuring employment for their

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clients, to procure employment without a license and risk the

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voiding of parts of their contracts, or to obtain a license.

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Because they have a range of options, Plaintiffs have not stated a

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claim for involuntary servitude in violation of the Thirteenth

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Amendment.

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D. Commerce Clause

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Plaintiff alleges that the TAA interferes with interstate

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commerce because it “has no provision for the issuance of a License

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to an applicant with an out-of-state business address.”

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¶ 76.)

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§ 1700.19(b) of the Act states that a license must contain “a

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designation of the city, street, and number of the premises in

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which the licensee is authorized to carry on the business of a

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talent agency.”

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draws the inference that “[n]o provision is made in the Act for

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identification of any State location other than California.”

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(Compl. ¶ 77.)

(Compl.

Plaintiff’s sole factual basis for this allegation is that

Based on this single factual allegation, Plaintiff

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1

The Court finds that this inference is weak and is not

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plausible in light of public documents offered by Defendants

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indicating that an applicant for a license must indicate city,

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state, and zip code.

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http://www.dir.ca.gov/dlse/talent_agency_license.html.)

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this evidence makes Plaintiff’s inference implausible, and because

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Plaintiff does not allege that any of its members were refused

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licenses because they were located outside of California, Plaintiff

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has not stated a claim for violation of the Commerce Clause.

(See RJN Exh. 1,
Because

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E. First Amendment

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Plaintiff alleges that the TAA and its enforcement violate the

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First Amendment because it “restricts Plaintiff’s commercial speech

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and does not directly advance a substantial state interest and is

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far more extensive than necessary.

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enforcement of the TAA imposes more than an incidental burden on

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protected expression and imposes a burden based on the content of

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speech and the identity of the speaker.”

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Court disagrees.

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not limit the speech of a personal manager; it limits the personal

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manager’s ability to enforce contractual obligations when that

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person engages in the conduct of procuring employment.

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The TAA and Defendants’

(Compl. ¶¶ 94-95.)

The TAA regulates conduct, not speech.

The

It does

The fact that the activity of procuring employment takes place

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through speech does not mean that the TAA is a regulation of

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speech.

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speech or press to make a course of conduct illegal merely because

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the conduct was in part initiated, evidenced, or carried out by

27

means of language, either spoken, written, or printed.”

28

Empire Storage & Ice Co., 336 U.S. 490, 502 (1949).

“[I]t has never been deemed an abridgement of freedom of

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Giboney v.

Here, speech

1

is not made illegal.

The Court agrees with Defendants that “the

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TAA licenses the conduct of procuring employment for artists, not

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the expressive means by which employment is procured.”

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at 22.)

(Mot.

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F. Contracts Clause

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The Contracts Clause of the United States Constitution

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provides that “[n]o State shall . . . pass any . . . Law impairing

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the Obligation of Contracts.”

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generally asks three questions: “whether there is a contractual

Art. I, § 10, cl. 1.

The inquiry

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relationship, whether a change in law impairs that contractual

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relationship, and whether the impairment is substantial.”

12

Motors Corp. v. Romein, 503 U.S. 181, 186 (1992).

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must be in existence when the law allegedly impairing it is enacted

14

or altered; a party who enters into a contract after a law is

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enacted is subject to that law.

16

Bldg. & Loan Ass’n of Newark, 310 U.S. 32, 38 (1940) (when the

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petitioner “purchased into an enterprise already regulated in the

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particular to which he now objects, he purchased subject to further

19

legislation upon the same topic.”).

20

Gen.

The contract

See, e.g., Veix v. Sixth Ward

Here, Plaintiff does not allege that the law has been altered

21

in any way subsequent to the formation of a particular contract.

22

Because Plaintiff points to no contract in existence when the TAA

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was enacted or altered, Plaintiff has failed to state a claim for a

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violation of the Contracts Clause of the Constitution.

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IV. CONCLUSION

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The Court finds that, while Plaintiff has standing and has

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appropriately sued the Labor Commissioner, Plaintiff has failed to

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state a claim.

For these reasons, the motion to dismiss is
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GRANTED.

Because any amendment would be futile, the Court grants

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the Motion with prejudice.

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IT IS SO ORDERED.

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Dated: August 13, 2015
DEAN D. PREGERSON
United States District Judge

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