Talent managers penalized by a law that doesn't say so

The California Talent Agencies Act (TAA) has been misinterpreted to penalize talent managers for "unlawful procurement," i.e., getting gigs for talent. As a result, the talent management industry is being destroyed, leaving a gaping hole for artists unable to secure representation by talent agents.

Courts and the California Labor Commission, which regulates the TAA, have interpreted the TAA to prohibit unlicensed persons from procuring employment for creative artists, but the TAA itself says no such thing. It only lists the defining activities of a talent agent: procuring employment and directing and counseling artists.

Likewise, though the commissioner voids the contracts of unlicensed procurers, the TAA does not statutorily put a consequence on an unlicensed person that procures.

In a Petition for Review filed on Feb. 13, 2025 (Pardoe v. Salazar, S288947), the State Supreme Court is being asked to determine if, despite the lack of a codified prohibition or remedy, the Act has been enforced constitutionally.

The law is on the side of the challengers: Courts have repeatedly held, "Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed." Lambert v. CA. 355 U.S. 225, 228 (1957). See Consumer Advocacy Group v. Kintetsu Enterprises of America, 150 Cal.App.4th 953, 960 (2007).

Appellant's Petition claims the Appeals Court mistakenly found "all of the issues raised on appeal have been previously determined" and "as an immediate appellate court, we are bound to follow the decisions of the California Supreme Court." It specifically details how this Court has considered and opined on the constitutionality of the Act's applicability.

The facts also are on the side of the Petitioner.

While the TAA has been around for almost five decades, only six published cases exist. The first, Wachs v. Curry, 13 Cal.App. 4th 616 (1993), was a facial challenge, specific to whether "occupation of procuring employment" lacked constitutional clarity. Wachs found the phrase was not "so patently vague and so wholly devoid of objective meaning that it provides no standard at all." The Wachs court, however, punted on the issue of constitutionality of the TAA, saying: "Whether the (TAA) is unconstitutional as applied to plaintiffs is a question for another day." Id. at 629.

Park v. Deftones, 71 Cal.App.4th 1465 (1999) and Waisbren v. Peppercorn Productions Inc., 41 Cal.App.4th 246 (1995) only mention the term 'constitutional' in referencing Wachs. Yoo v. Robi, 126 Cal.App.4^th 1089 (2005) neither mentions nor discusses constitutional issues.

Likewise, one of the two TAA high court cases, Styne v. Stevens, 26 Cal. 4th 42 (2002), never mentions 'constitutionality'; the other, Marathon v. Blasi, 42 Cal.4th 974 (2008), limited its comments to the Act's title, not constitutionality limiting its enforcement to those identifying as talent agents.

The Marathon court noted three times (at 991, 991, 996) that the Act had no remedy should one be found to have procured without a talent agency license, but was not asked and did not opine on its implications, the questions being raised in the Petition.

However, the Court of Appeals opinion in that matter, Marathon v. Blasi, 140 Cal.App.4th 1001, 1010 (2006) clearly stated that the TAA is NOT a statute barring unlicensed persons from procuring:

"The [Talent Agencies] Act does not expressly prohibit the enforcement of contracts made by unlicensed talent agencies. Unlicensed contractors, real estate brokers, and insurance adjusters, on the other hand, are all expressly prohibited by statute from suing to recover on contracts made in violation of their respective business licensing statutes. (Bus. Prof. Code, §§ 7031, 10136; Ins. Code, § 15006.)"

The California Court of Appeals also addressed the implications of the TAA not having a remedy for unlicensed procurement:

In Wood v. Krepps (1914) 168 Cal. 382 [ 143 P. 691], the Supreme Court enforced a promissory note despite the plaintiff pawnbroker's violation of a municipal business licensing statute that, like the [TAA], did not expressly prohibit the enforcement of contracts made in violation of the statute. The Supreme Court stated that there "is no law in this state making the business of loaning money on personal property illegal ... nor is there any provision therein indicating in the slightest that this failure was intended to affect in any degree the right of contract." (168 Cal. at p. 387.)  

Administrative agencies are bound to follow all changes in enforcement as created by case law. After the landmark California Supreme court ruling in Marathon v. Blasi, the Labor Commissioner immediately began to consider severability. However, the Labor Commission wrongfully chose the Marathon Court of Appeals decision, holding that "our long-standing position, supported by case law and legislative history, is that a contract [of an unlicensed procurer] is void ab initio." Smith v. Harris, TAC 53-05, Pg. 16, lns. 21-26.

The Labor Commission continues voiding management contracts, despite Marathon and Wood v. Krepps, a high court holding in place before and after the Court of Appeals and Supreme Court Marathon proceedings. Claims of "unlicensed procurement' are untenable in the face of the TAA itself. The Labor Commission, by misinterpreting the TAA, has left the communities of personal managers, attorneys, producers, publicists, and marketing executives at perpetual risk of financial devastation.

Like Dorothy in the Wizard of Oz, the courts have had the power to right the wrong of unlawful constructions of the TAA all along. It has been said that history repeats itself twice, the first time as a tragedy and the second as a farce. It is high time that the court resolves the wrongful interpretation of the TAA and granted a hearing on the pending Petition to right this wrong for this second time. And this time to be sure, everyone will notice.