Waisbren v. Peppercorn Productions, Inc., B088448

• Decision Date: 20 December 1995
• Docket Number: No. B088448,B088448
• Citation: 41 Cal.App.4th 246,48 Cal.Rptr.2d 437
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9734, 95 Daily Journal D.A.R. 16,899 Brad WAISBREN, Plaintiff and Appellant, v. PEPPERCORN PRODUCTIONS, INC., et al., Defendants and Respondents.

Page 437

48 Cal.Rptr.2d 437

41 Cal.App.4th 246, 95 Cal. Daily Op. Serv. 9734,

95 Daily Journal D.A.R. 16,899

Brad WAISBREN, Plaintiff and Appellant, v. PEPPERCORN PRODUCTIONS, INC., et al., Defendants and Respondents.

No. B088448.

Court of Appeal, Second District, Division 1, California.

Dec. 20, 1995.

Rehearing Denied Jan. 17, 1996.

Review Denied March 14, 1996.

Law Offices of Steven D. Waisbren and Steven D. Waisbren, Sherman Oaks, CA, for Plaintiff and Appellant.

Anker & Hymes, Jonathan L. Rosenbloom, New York City, and Douglas K. Schreiber, Encino, CA, for Defendants and Respondents.

MASTERSON, Associate Justice.

In the entertainment industry, talent agents and personal managers perform valuable services for their clients. Talent agents, who seek to procure employment for artists, must be licensed under the Talent Agencies Act (Lab.Code, §§ 1700-1700.47). In contrast, personal managers, who advise and direct artists in the development of their careers, are not subject to any licensing requirements.

This appeal presents the question of whether a personal manager must be licensed under the Talent Agencies Act if he devotes an incidental portion of his business to the function of a talent agent--procuring employment for an artist. We conclude that he must be so licensed.

BACKGROUND

Defendant Peppercorn Productions, Inc. ("Peppercorn") is a California corporation In 1982, plaintiff Brad Waisbren agreed to promote Peppercorn. From 1982 through 1988, he performed numerous services for the company pursuant to an oral agreement. Among other things, Waisbren assisted in project development, managed certain business affairs, supervised client relations and publicity, performed casting duties, advised Peppercorn regarding the selection of artistic talent, coordinated production, and handled office functions, such as the hiring and firing of personnel. Occasionally, Waisbren procured employment for Peppercorn, but his efforts in that regard were incidental to his other responsibilities. For his services, Waisbren was to receive 15 percent of Peppercorn's profits. ¹

specializing in the design and creation of puppets for use in the entertainment industry and advertising media. Peppercorn has also been involved in producing various television projects. Defendants David Pavelonis and Terrie Pavelonis are officers of Peppercorn.

In 1988, Peppercorn terminated its relationship with Waisbren. In 1990, he filed suit against defendants, alleging that they had not paid him in accordance with the parties' agreement. By way of a second amended complaint filed in 1991, Waisbren alleged six causes of action, all of which sought relief based on an alleged breach of the agreement. ²

In March 1994, defendants moved for summary judgment on the ground that the parties' agreement was void because Waisbren had performed the duties of a talent agent--by procuring employment for Peppercorn--without first obtaining the necessary license under the Talent Agencies Act. In opposing summary judgment, Waisbren admitted that he had no such license. However, he argued that a license was unnecessary since his procurement activities were minimal and merely incidental to his other responsibilities. ³ In May 1994, the trial court granted defendants' summary judgment motion. Waisbren filed a timely appeal from the judgment.

DISCUSSION

Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).)

"A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action].... Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action.... In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court.... We must determine whether the facts as With these principles in mind, we turn first to the question of whether Waisbren had to be licensed as a talent agent, even though his efforts to procure employment for Peppercorn were minimal or incidental in relation to his other activities. Finding that a license was necessary, we then examine whether the trial court applied the proper remedy for Waisbren's unlicensed conduct (i.e., declaring the parties' agreement void and precluding Waisbren from seeking any recovery under it).

                shown by the parties give rise to a triable issue of material fact....  In making this determination, the moving party's affidavits are strictly construed while those of the opposing party are liberally construed."  (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1558, 28 Cal.Rptr.2d 70, citations omitted;  see also Code Civ.Proc., § 437c, subd.  (o )(2).)   We accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence.  (Kelleher v. Empresa [41 Cal.App.4th 252] Hondurena de Vapores, S.A.  (1976) 57 Cal.App.3d 52, 56, 129 Cal.Rptr. 32.)   In other words, the facts alleged in the declarations of the party opposing summary judgment must be accepted as true.  (Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1179, fn. 3, 214 Cal.Rptr. 746.)
                

A. The Licensing Scheme

The Talent Agencies Act (the "Act") provides that "[n]o person shall engage in or carry on the occupation of a talent agency without first procuring a license therefor from the Labor Commissioner." (Lab.Code, § 1700.5.) A "talent agency" is "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." (Id. § 1700.4, subd. (a).) ⁴ An "artist," in turn, includes a broad spectrum of persons and entities working in the entertainment field. ⁵

Unlike a talent agent, a "personal manager" is not covered by the Act or any other statutory licensing scheme. (Yanover & Kotler, Artist/Management Agreements and the English Music Trilogy: Another British Invasion? (1989) 9 Loyola Ent.L.J. 211, 211-214.) "Artists typically engage personal managers in addition to talent agents.... [p] ... In essence, the primary function of the personal manager is that of advising, counselling, directing and coordinating the artist in the development of the artist's career. The manager's task encompasses matters of both business and personal significance. As business advisors, they might attend to the artist's finances, and they routinely organize the economic elements of the artist's personal and creative life necessary to bring the client's product to fruition. The personal manager frequently lends money to the neophyte artist, thereby speculating on a return from the artist's anticipated future earnings. The manager also serves as a liaison between the artist and other personal representatives, arranging their interactions with, and transactions on behalf of, the artist. On a more personal level, the manager often serves as the artist's confidant and alter ego.... By orchestrating and monitoring the many aspects of the artist's personal and business life, the personal manager gives the artist time to be an artist. That is, managers liberate artists from burdensome yet essential business and logistical concerns so that artists have the requisite freedom to discharge their artistic function and to concentrate on their immediate creative task.... In this regard, the personal manager is an indispensable element of an artist's career." (O'Brien, Regulation As a practical matter, personal managers may occasionally find themselves in situations where they would like to procure employment for their clients. (See Hertz, The Regulation of Artist Representation in the Entertainment Industry (1988) 8 Loyola Ent.L.J. 55, 58-59, 63 [hereafter The Regulation of Artist Representation ]; Johnson & Lang, The Personal Manager in the California Entertainment Industry (1979) 52 So.Cal.L.Rev. 375, 375-376 [hereafter The Personal Manager ].) That is not the issue before us, however. Rather, we must decide whether a person needs to be licensed under the Act if he occasionally procures employment for an artist. We conclude that a license is required.

of Attorneys Under California's Talent Agencies Act: A Tautological Approach to Protecting Artists (1992) 80 Cal.L.Rev. 471, 481-482, fns. omitted [hereafter Regulation of Attorneys ].)

1. The Plain Meaning of the Act

In construing the provisions of the Act, our goal is to ascertain and effectuate legislative intent. (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672.) In determining that intent, we look first to the language of the statute, giving effect to its plain meaning. (Ibid.)

The Act applies only if a person engages in the "occupation" of procuring employment for an artist. (Lab.Code, §§ 1700.4, subd. (a), 1700.5.) Waisbren contends that because "occupation" is defined as "the principal business of one's life" (see Webster's Third New Internat. Dict. (1981) p. 1560, col. 3, italics added), a license is not needed unless a person's principal responsibilities involve procuring employment for an artist. We disagree.

By limiting the concept of "occupation" to one's "principal" business endeavor, Waisbren ignores the possibility that a person can have more than one job. Plainly, an individual can be engaged in an "occupation" even if he does not spend most of his time in that pursuit. Moreover, Waisbren's argument rests on only one definition of "occupation." That term also means "a craft, trade, profession or other means of earning a living." (Webster's Third New Internat. Dict. (1981) p. 1560, col. 3.) Further, "occupation" is synonymous with "e...