BEFORE THE LABOR COMMISSIONER OF THE STATE OF CALIFORNIA ) DETERMINATION OF CONTROVERSY ) ) )

Transcription

1 6 STATE OF CAIFORNIA Department of Industrial Relations Division of abor Standards Enforement BY: EDNA GARCIA EAREY, State Bar No W. 4 Street, Suite 430 os Angeles, California Tel.: (3) 897- Attorney for the abor Commissioner BEFORE THE ABOR COMMISSIONER OF THE STATE OF CAIFORNIA NIA VARDAOS, An Individual, ) CASE NO TAC 2-03 Petitioner, ) ) ) vs. ) ) RICHARD SIEGE, an individual; MARATHON ENTERTAINMENT, INC., A ) California Corporation, ) Respondent. The above-aptioned petition was filed by Nia Vardalos (hereinafter, petitioner ) on January 0, 03. Petitioner alleges, inter alia, therein that respondents Rihard Siegel, an individual and Marathon Entertainment In., a California Corporation (hereinafter olletively referred to as respondents ) violated the Talent Agenies At (hereinafter, also referred to as the At ) by ating in the apaity of a talent agent without being liensed, in violation of abor Code setion Petitioner and respondents entered into an oral agreement (hereinafter referred to as, Agreement ) in or about November 997, whereby respondents agreed to at as a personal manage for petitioner and agreed to seek to proure employment for petitioner as a de fato talent agent. In

2 return, petitioner agreed to pay respondents % ommissions on all gross earnings petitioner reeived in onnetion with ativities and/or servies by petitioner as an ator or writer resulting fron agreements entered into or negotiated during the term of the Agreement. The Agreement was terminated by petitioner in or about Otober, 00. Petitioner herein seeks a determination from the abor Commissioner that: respondents have violated setion 00 et seq. of the abor Code; that the Agreement is void ab initio and is therefore unenforeable; and, that petitioner has no liability thereon to respondents and respondents have no rights or privileges thereunder. Respondents onede that they are not liensed talent agents but deny that they violated the Talent Agenies At. Respondents argue that petitioner has no standing to enfore the at as an employer sine the abor Code only serves to protet employees. Respondents also argue that petitioner does not have standing beause she is not an artist as defined by abor Code setion 00 et seq., sine she did not render professional servies diretly to respondents; respondents also argue that the petition is barred by the appliable statute of limitations; and lastly, to the extent respondents ondut is found to be prourement of employment, respondents argue their ondut was at all relevant times in onjuntion with a liensed talent agent. The matter ame on for hearing on September, 03, before Edna Garia Earley, Speial Hearing Offier, in os Angeles, California. Petitioner appeared through her attorneys, Martin D. Singer and Paul N. SorreTiTEZv45~idiSi@~7 Respondents appeared through their attorney, Tanya M. Aker of Fox & Spillane, P. Called as witnesses by petitioner were: Nia Vardalos, Jennifer Cusentino, Gary Goetzman, John Kelly, and Nikitas Nestoros (by telephoni deposition taken on September, 03). Called as witnesses by respondents were Rihard Siege and Jonathan D. Respondents also argue that the relief petitioner seeks to enfore is in violation of Californii Business & Professions Code, setion 0. However, the hearing offier was not persuaded by thi argument. Moreover, reognizing that this is not a valid defense under the Talent Agenies At, ther will no.t be any hrther disussion with respet to this argument, in this determination. 2

3 and evidene reeived at this hearing, the abor Commissioner adopts the following determination o ontroversy. A. My Big Fat Greek Wedding FINDINGS OF FACT Petitioner beame aquainted with respondents through her husband, Ian Gomez, who was a lient of respondents. Petitioner, who is an atress and writer, asked respondents to represent her a a manager. Respondents initially delined representation beause they were already representing petitioner s husband. However, a ouple of months later, respondent Rik Siegel learned that Rita Wilson, atress and wife of ator Tom Hanks, was planning on attending petitioner s one-woman show and deided to attend the show as well. After the show, respondent Rik Siegel learned that Rita Wilson was interested in obtaining a opy of the sreenplay written by petitioner whih was based on the one-woman show, and offered to send Rita Wilson a opy. This at, (followed by an oral agreement entered into between the parties), ommened respondents three year representatio of petitioner. As petitioner s new manager, respondent Rik Siegel not only sent the sreenplay to Rita Wilson but also admitted during the hearing on this matter, sending the sreenplay to anyone and ;re-*i-asd-think of that ould potentially help us in reahing our objetive made. (R.T. 97: -3). Those who reeived the sreenplay from respondent Rik Siegel inluded, but were not limited to, Sony Classis, Sreen Gems, Fine ine, Fox Searhlight, and Patriot Pitures. Throughout his representation of petitioner, respondent Rik Siegel also beame atively involved in negotiating amendments to a pre-existing ontrat petitioner had with MPH Entertainment, a prodution ompany, to produe the movie based on petitioner s sreenplay. Respondent Rik Siegel admitted to negotiating modifiations to the MPH agreement in 998 and 999. Furthermore, a letter written by respondent Rik Siegel to MPH demonstrates the ative role he took as petitioner s main negotiator with respet to the projet. (See Exhibit 7) 3

4 During respondents representation of petitioner, Rik Siegel was also the main person responsible for updating PAYTONE Pitures on all developments related to making the movie My Big Fat Greek Wedding. Gary Goetzman of PAYTONE Pitures, testified that respondent Rik >* -+r-- d t - -, C I( ; : 6 ia IT Siegel had disussions with PAYTONE Pitures about replaing MPS Entertainment as one of the prodution ompanies involved in making My Big Fat Greek Wedding. Mr. Goetzman also testifie that respondent Rik Siegel was the main person responsible for maintaining PAYTONE Piture s interest in making My Big Fat Greek Wedding, espeially during moments when PAYTONE Pitures onsidered abandoning the projet. Notably, while petitioner was also represented by liensed talent agents Bressler-Kelly & Assoiates between 999 and the beginning of 0, petitioner s witness and former liensed talent agent, John Kelly, testified that he did not partiipate in getting the projet My Big Fat Greek Wedding developed into a film. In fat, the only partiipation Bressler-Kelly had in the projet was to provide petitioner with some ounsel when she was having trouble with the diretor, both during and after pre-prodution and during atual prodution of the movie My Big Fat Greek Wedding. B. Film, Theatrial and Television Sitoms In addition to negotiating and working to get the movie My Big Fat Greek Wedding made, starring petitioner, respondents also admitted to prouring work for petitioner as an atress in film, theatrial and television sitoms. Among the film, theatrial and television sitom auditions that roured for petitioner during the period of Marh 00 through Otu amzisi: me Paul Rodriguez Show, the television series entitled My Wve and Kids, the television pilot entitled BETTE, a potential movie alled Animal Husbandry, and THE BEAST. Respondent Rik Siegel testified that most of the time he submitted petitioner for auditions, he did so in onjuntion with petitioner s liensed talent agents. However, the evidene presented, inluding the testimony by respondents former employees, petitioner s talent agent, and respondent Rik Siegel himself, establish that respondent was not ating in onjuntion with the talent agents when prouring work for petitioner. Nikitas Nestoros, a former employee of respondent testified that the purpose of respondent s 4

5 I F s IC ompany was to proure employment for its lients Ms Nestoros testified that this was done on a daily basis by going though a publiation know as breakdowns, whih lists roles, identified speifi roles that were felt suitable for speifi lients, and then to submit to the asting diretors head shots and resumes of those ators. This was then followed up with a all on that day or the next day to th( asting diretors. (R.T. of Telephoni Deposition of Nikitas Nestoros, :s- ). Mr. Nestoros als testified that respondents submitted head shots for petitioner withoutjrst ontmuniatiiig with an agent and that the only ommuniation that an agent ould be guaranteed to reeive would be a report that was sent to them anytime up to a week afrer the submission was made. Jennifer Cusentino, also a former _employee of respondents, testified that respondent Rik - Siegel instruted her to make submissions on behalf of petitioner for the purpose of prouring work for petitioner. Ms. Cusentino testified that there were oasions while working for respondents, when she submitted petitioner for an ating role without first disussing it with petitioner s liensed talent agent. John Kelly of Bressler-Kelly testified that he represented petitioner as a talent agent during the end of 999 to the beginning of 0. His testimony revealed that he did not request respondent Rik Siegel to ontat asting diretors for potential employment and did not instrut respondent Rik Siegel to try to get work for petitioner. Finally, respondent Rik Siegel testified that there were many times where the agent didn t mffflfii;aiion with the asting diretor before it happened.(r.t. 76: 0-.). Thus, a while it is evident that respondents proured work for petitioner, it is also evident that most times, it was not in onjuntion with a liensed talent agent. CONCUSIONS OF AW. abor Code setion 00.44() provides No ation or proeeding shall be brought pursuant to this hapter with respet to any violation whih is alleged to have ourred more than one year prior to ommenement of the ation or proeeding. Respondents argue that this petition is barred by abor Code setion 00.44() beause it was brought more than a year after respondents demand for payment for monies related to the My Big Fat Greek Wedding projet. 5

6 However, petitioner has raised the At as a defense As suh, the statute of limitations ontained in abor Code Setion 00 44() does not bar petitioner s defense sine it does not involve a laim fo affirmative relief. A defense may be raised at any time, even if the matter alleged would be barred by a statute of limitations if asserted as the basis for affirmative relief Stytie v. Stevens (0) Cal.4th 42, 09 Cal.Rptr.2d. Petitioner s laim is not barred by abor Code setion 00.44(). I < ( : : : It ; s 2 2. Respondents argue that petitioner is not an artist within the meaning of the Talent Agenies At beause she did not render professional servies diretly to respondents. abor Code setion 00.4(b) defines artists as ators and atresses rendering servies or the legitimate stag4 aiid iii.& prodzrtion of motion pitures, radio artists, musial artists, musial organizations, diretors of legitimate stage, motion piture and radio produtions, musial diretors, writers, inematographers, omposers, lyriists, arrangers, models and other artists and persons rendering professional servies in motion piture, theatrial, radio, television and other entertainment enterprises. [Emphasis added] Nowhere in the ode does it require the artist to render servies diretly to respondents. In this ase, petitioner is an atress who has rendered servies in the prodution of motion pitures (My Big Fat Greek Wedding) as well as theater and television. Additionally, petitioner is a writer. There is absolutely no question that she falls under the definition of artist ontained in abor Code setion 00.4(b). Aordingly, the abor Commissioner has jurisdition to determine this ontroversy pursuant to the provisions of that setion. 3: Responaents argue that petitioner has no standing to enfore the at as an empioyer sine the abor Code only serves to protet employees. Respondents ignore the fat that there exists an entire statutory sheme in the abor Code speifially set up to protet artists as defined in abor Code setion 00.4(b). Statutes must be given a reasonable and ommon sense onstrution in aordane with the apparent purpose and intention of the lawmakers... Buhwald v. Katz (967) 4 Cal.App.2d 347, 355 iting to 45 Cal.Jur.2d, Statutes, $ 6, pp Here, the California legislature has determined that the at of prouring employment for artists is an oupation neessitating regulatory oversight and statutory protetion. Respondents argument that petitioner has no standing beause she hired respondents to be her personal managers ompletely 6

7 C e I E s ignores the legislature s intent to protet artists Sine petitioner is an artist as defined hereinabove, she has standing to enfore the Talent Agenies At. 4 Respondents next argue that to the extent that they proured work for petitioner, the did so at the request of and in onjuntion with a liensed talent agent. Aordingly, they are exemp from the prohibitions of the law under the provisions of abor Code setion 00.44(d). The assertion of this defense neessitates arefid analysis. To qualifjl under these express provisions requires the satisfation of a twofold burden of proof, i.e., the person laiming the exemption must prove the he or she ated both () at the request of, and (2) in onjuntion with, a liensed talen agent during the ourse of the events in question. In this ase, respondents presented no evidene that eah of their employment prourement ativities on behalf of petitioner, were undertaken at the request of a liensed talent went. In fat the overwhelming evidene revealed that most times, respondents did not at at the request of a talent agent. Mr. Nestoros and Ms. Cusentino, former employees of respondents, testified that the standard pratie while working for respondents, was to first submit petitioner for ertain television and film roles and then to inform petitioner s talent agent of the submissions by providing the talent agent with a weekly breakdown of the submissions made on behalf of petitioner. Mr. Kelly, petitioner s talent agent fiom the end of 999 to the beginning of 0, testified that he did not request respondents to submit petitioner for many of the roles respondents admitted to having submitted on behaif of petitioner. Notab ly, even respondent Rik Siegel admitted that many times the agent did not know in advane that he would be having disussions with asting diretors relatint to prourement ativities on petitioner s behalf. Respondent Rik Siegel testified that he often made the submissions without first ontating petitioner s talent agents only beause the role or type of work respondents were submitting on behalf of petitioner may not have been an area in whih petitioner s talent agent was knowledgeable. The problem however, is that the at requires that respondents be liensed or at at the request of a liensed talent agent on every single submission and prourement ativity done on behalf of petitioner. (See Waisbren v. Pepperorn Produtions, In. (995) 4 Cal.App.4th 6). In 982, 7

8 , 4 E s ( 3 It 9 AB 997 established the California Entertainment Commission. Pursuant to statutory mandate, the Commission studied and analyzed the Talent Agenies At. In onsidering when a personal manage ould engage in asual onversations onerning the suitability of an artist for a role or part, the Commission expressed that it is not enough that the talent agent grants overall permission for the manager to seek employment. The agent must advise the manager or request the manager s ativity for eah and every submission. At the very minimum an agent must be aware of the manager s prourement ativity.(commission Report pp. 0-2). By knowingly making submissions on petitioner s behalf without being requested to do so by petitioner s liensed talent agent, respondents were learly ating as unliensed talent agents in violation of the At. Respondents have also failed to present any evidene that their employment prourement ativities on behalf of petitioner were done in onjuntion with a liensed talent ayent. In fat, th evidene indiates just the opposite. Signifiantly, it was undisputed that respondents sent the sreenplay petitioner wrote based on her one-woman show to numerous prodution ompanies, negotiated modifiations to petitioner s ontrat with MPH Entertainment to produe My Big Fat Greek Wedding and were instrumental in maintaining PAYTONE Pitures interest in produing th movie, all without working in onjuntion with a liensed talent agent. Petitioner s liensed talent agent at the time, John Kelly, testified that his role in getting My Big Fat Greek Wedding was limited to ounseling petitioner during pre-prodution and prodution of the movie. This. an only mean tha resp6tident R&-3iq+E s ative rvkb-gerting the movie made was done alone and not in onjuntioi with a liensed talent agent as required by the At. Respondents have not met their burden of proof showing they are exempt from the prohibitions of the law under the provisions of abor Code setion 00.44(d). 5. In onlusion, it is lear that respondents violated abor Code setion 00.5, in that they engaged in and arried on the oupation of a talent ageny without first prouring a liense therefor from the abor Commissioner. Consequently, the verbal agreement entered into between Detitioner and respondents in or about November 997, is void ab initio and is unenforeable for all mrposes. 8

9 . 4 I E C ORDER For the above-stated reasons, IT IS HEREBY ORDERED that the 997 oral ontrat between Petitioner NIA VARDAOS and Respondents RICHARD SIEGE, an individual and MARATHON ENTERTAINMENT, INC., a California orporation, is unlawkl and void ab inilio. Petitioner NIA VARDAOS has no liability thereon to Respondents RICHARD SIEGE, an individual and MARATHON ENTERTAINMENT, INC., a California orporation and respondents RICHARD SIEGE, an individual and MARATHON ENTERTAINMENT, INC., a California orporation have no rights or privileges thereunder. Attorney for the abor Commiss ner le/ ADOPTED AS THE DETERMINATION OF THE ABOR COMMISSIONER: 9 Atini Wuty Chief abor Commissioner

10 . J I am employed in the County of os Angeles, State of California I am over the age of and not a party to the within ation My business address is DIVISION OF ABOR STANDARDS ENFORCEMENT, Department of Industrial Relations, 3 W 4"' Street, Suite 430, os Angeles, CA 9003 On Januarv,04, I served the following doument desribed as on the interested parties in this ation [TAC 2-03] by plaing [ 3 the originals ' [ ] [x] [ 3 [ ] [ ] BY MAI I deposited suh envelope in the United States Mail at os Angeles, California, postage prepaid. BY MAI I am readily familiar with the firm's business pratie of olletion and proessing of orrespondene for mailing with the United States Postal Servie and said orrespondene is deposited with the United States Postal Servie the same day. BY EXPRESS MAI I am readily familiar with the firm's business pratie of olletion and proessing of orrespondene for mailing with the United States Postal Servie and said orrespondene is deposited with the United States Postal Servie the same day. BY FACSIMIE I sent a opy of said doument by fax mahine for instantaneous transmittal via telephone line to the offies of the addressee(s) listed above using the following telephone number( s) : BY PERSONA SERVICE I delivered a opy of said doument to the parties set forth above, as follows: Exeuted on January, 04, at os Angeles, California. I delare under penalty of perjury the foregoing is true and orret. Proof of Servie Rhina Miheo