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2d Civil No. B214056
CALIFORNIA COURT OF APPEAL
FOR THE SECOND APPELLATE DISTRICT
DIVISION FOUR
ALAN ROSENBERG, ANNE-MARIE JOHNSON,KENT MCCORD AND DIANE LADD,
Plaintiffs/Appellants.
SCREEN ACTORS GUILD,
Defendant/Respondent.
From the Superior Court for Los Angeles CountyHonorable Judge James C. Chalfant
Los Angeles Superior Court Case No. BC406900
RESPONDENT SCREEN ACTORS GUILD'SMOTION TO DISMISS APPEAL AS MOOT
Bingham McCutchen LLPDaniel Alberstone (SBN 105275)
Roland Tellis (SBN 186269)Sara Jasper Epstein (SBN 240577)
Fourth Floor, North Tower1620 26th Street
Santa Monica, CA 90404-4060Telephone: 310.907.1000Facsimile: 310.907.2000
Attomeys for Respondent Screen Actors Guild
Ai73036123.7/3009810-0000337304
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS(Cal. Rules of Court, rule 8.208)
There are no interested entities or persons to list in this certificate.
(Cal. Rules of Court, Rule 8.208(e)(3).)
DATED: May 20, 2009
Ai7JOJ612J.7/300981 0-0000337304
Bingham McCutchen LLP
By:'-----------------Roland Tellis
Attorneys for RespondentScreen Actors Guild
TABLE OF CONTENTS
I. INTRODUCTION 1
II. STATEMENT OF RELEVANT FACTS 2
A. Events Leading up to Appellants' Filing of the Action 2
B. The January 26, 2009 Written Assent... 3
C. Appellants Unsuccessfully Attempt to Enjoin SAGfrom Acting Pursuant to the Written Assent... 4
D. SAG Holds a Special Meeting to Reaffirm the ActsPassed by the January 26, 2009 Written Assent.. 6
E. Appellants Unsuccessfully Seek Expedited"E tr d' " W 't R' . TI' C i 8x aor mary n eVlew m llS OUI .•••......................
III. THE APPEAL IS MOOT AND SHOULD BE DISMISSED 8
IV. SAG'S FEBRUARY 8, 2009 BOARD MEETING CUREDANY ALLEGED DEFECT IN THE JANUARY 26, 2009WRITTEN ASSENT 11
A. The February 8, 2009 Board Meeting Was DulyNoticed 12
B. Robeli's Rules Were Not Violated at the February 8,2009 Board Meeting 14
C. Opponents of the Written Assent Had the OpportunityTo - And Did - Debate its Merits at the February 8,2009 Board Meeting 17
V. CONCLUSION 18
A173036 J23.7/30098 J0·0000337304
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Talton v. Behncke,199 F. 2d 471 (7th Cir. 1952) 17, 18
STATE CASES
Calif. Trial Lawyers Ass'n v. Superior Court,187 Cal. App. 3d 575 (1986) 15
Califomia Prune & Apricot Growers' Assn. v. Pomeroy OrchardCo., 195 Cal. 264 (I 925) 10
Chambers v. Ashley,33 Cal. App. 2d 390 (1939) 9
Chase v. Brooks,187 Cal. App. 3d 657 (1986) 10
Childress v. L. Dinkelspiel Co., Inc,203 Cal. 262 (1928) 8
Clark v. Mazgani,170 Cal. App. 4th 1281 (2009) 8
Ebensteiner Co.. Inc. v. Chadmar Group,143 Cal. App. 4th 1174 (2006) 8
Eye Dog Found. v. State Bd. of Guide Dogs for the Blind,67 Cal. 2d 536 (1967) 8
Finnie v. Tiburon,199 Cal. App. 3d 1 (1988) 10
Giles v. Hom,100 Cal. App. 4th 206 (2002) 9
Jeppi v. Brockman Holding Co.,34 Cal. 2d 11 (1949) 13
Kurz v. Fed. ofPetangue,146 Cal. App. 4th 136 (2006) 14, 15
Long v. Hultberg,27 Cal. App. 3d 606 (1972) 2
Af73036123.713009810-0000337304 II
TABLE OF AUTHORlTIES
Page
MHC Operating Limited Partnership v. City of San Jose,106 Cal. App. 4th 204 (2003) 8,9
Norco Delivery Serv.. Inc. v. Owens-Corning Fiberglas,64 Cal. App. 4th 955 (1998) 2
Robertson v. Hartman,6 Cal. 2d 408 (1936) 13
Roscoe v. Goodale,105 Cal. App. 2d 271 (1951) 9
Shamel v. Lite Products Sales. Inc.,131 Cal. App. 2d 33 (1955) 13
Wright v. Bd. of Public Works of Los Angeles163 Cal. 328 (1912) 10
STATE STATUTES
Cal. Bus. & Prof. Code § 17200 ..4, 5
Cal. Civ. Proc. Code § 2015.5 2
Cal. Corps. Code § 7211 (a)(8) 14
STATE RULES
Cal. Rules of Court, rule 8.54(a) 2
OTHER AUTHORITIES
2 Fletcher Cyclopedia of the Law of Corporations(2005-2006 Rev.) § 429 13
2 Fletcher Cyclopedia of the Law of Corporations(Supp. 2008-2009) § 752 13
Robeli's Rules, Newly Revised, 10th ed.§§ 10,23,24,37, 43 passim
9 Witkin, Cal. Proc. 5th (2008) Appeal § 752 10
A17J036123.7/3009810-0000337304 III
I. INTRODUCTION
The crux of this appeal is a January 26, 2009 "written assent" (the
"Written Assent") passed by a majority vote of the Board of Directors of
Respondent Screen Actors Guild ("SAG"). Despite a decades-long practice
of utilizing the written assent procedure including during Appellants'
leadership tenure - Appellants now contend that this Written Assent is
invalid because it deprived all SAG Board members from casting a vote at
a duly-noticed Board meeting. In fact, the majority vote written assent
procedure is authorized under SAG's Constitution and Bylaws. Appellants'
real complaint is that they found themselves on the losing side of a majority
vote. Their candidate for SAG's leadership was not supported by the
majority of SAG's Board, and they refuse to accept defeat.
Sour grapes aside, this appeal is now legally moot. After the court
below denied Appellants' request for a temporary restraining order to
enjoin SAG from acting pursuant to the Written Assent, SAG's new
leadership nevertheless deferred to Appellants' demands for a Board
meeting. On February 8, 2009, a Board meeting was held, and evelJI Board
member was represented. A larger majority of SAG's Board again
approved the actions previously approved by the Written Assent.
The credits have rolled, and no good cause exists to plunge this
Court into an internecine feud.
AI73036123.713009810·0000337304 1
II. STATEMENT OF RELEVANT FACTS
A. Events Leading up to Appellants' Filing of the Action
Begilming in April 2008, SAG began negotiations with the Alliance
of Motion Picture and Television Producers ("AMPTP") regarding the
terms of SAG's collective bargaining agreement. (Appellants' Opening
Brief ["AOB"], at p. 5.) SAG's Chief Negotiator and National Executive
Director ("NED") at that time was Douglas Allen ("Allen"). (Id.) The
most controversial subject of the SAG/AMPTP negotiations was the
manner in which SAG members would receive residual payments from
content presented in "new media" electronic formats-such as from DVDs
and the Internet. (Id. at p. 7.)
By January 2009, the SAG/AMPTP negotiations were at a standstill,
and a deep rift had formed among SAG's members regarding the manner in
which SAG should approach the negotiation process.
On January 12 and 13,2009, SAG's Board of Directors (the
"Board") held a 28-hour "marathon" meeting. (Declaration ofMichelle
Bennett ["Bennett Decl."], at 'U8.)! Appellant Alan Rosenberg
("Rosenberg"), SAG's President, presided over the meeting as its
! This Court has the power to tilke additional evidence (Cal. Rules of Court,rule 8.54(a); Code CIV. Proc. § 2015.5), and should do so when suchadditional evidence "shows that events occurring after judgment and noticeof appeal have rendered the appeal moot." Long v. Hultberg, 27 Cal. App.3d 606, 608 (1972); see also Norco Delivery Serv., Inc. v. Owens-CommgFiberglas, 64 Cal. App. 4th 955, 961, fn. 3 (1998) ("rule 41 [thepredecessor to rule 8.54] expressly provides for the submiSSIOn of evidencevia affidavits to support any motion filed on appeal").
A!73036123.713009810-0000337304 2
chairperson. At the meeting, various members of SAG's Board expressed
displeasure with Allen's negotiation tactics, and proposed a motion to
remove Allen as NED. (AOB, at p. 9.) However, Appellants and their
allies on the Board employed a variety of filibustering tactics in order to
prevent the Board from voting on the motion. (See Bennett Dec!., at ~ 8.)
B. The January 26, 2009 Written Assent
On or about January 26, 2009, SAG Board members holding 52.52%
of the votes signed a "written assent," which was circulated by email and
fax, and delivered it to SAG (the "Written Assent"). (Bennett Dec!., at ~ 9,
Ex. A; AOB, at pp. 10-11; see also AA, Vo!. I, Ex. 5, pp. 00231-233.)
Among other things, the Written Assent tem1inated Allen as NED and
ChiefNegotiator and installed David White ("White") as interim NED and
John T. McGuire ("McGuire") as interim Chief Negotiator. (Id.)
Polls taken by email and/or fax are the conm10nly used f01111 of
written assent provided for by Article V, Section 1(1)(4) of SAG's
Constitution and By-Laws, and have been considered valid acts of SAG's
Board for many years. (Bennett Dec!., at ~ 3.) Pursuant to that provision of
the Constitution and By-Laws, the written assent of a majority of the votes
of the Board is required for action to be taken by written assent. (Id.)
Since June of2004, SAG has conducted ten separate email/fax polls
of the Board, resulting in decisions on thirteen different questions
submitted to the Board. (Bennett Dec!., at ~ 4.) The types of issues
A!73036123.713009810-0000337304 3
considered by the Board by email/fax poll range from relatively minor to
those of major importance, including the delegation of authority to hire
senior executive staff, approval of the tennination of the offering of certain
collective bargaining agreements, appointment of candidates to outside
boards or trusteeships, approval of the creation of taskforces and
appointment of their members, and delegation of the authority to call a
strike of the membership. (Id. at ~~ 4-5.)
Appellants themselves concede that SAG has employed the "written
assent" procedure, without objection, in order to allow the Board to validly
act by majority vote without a meeting. (AA Vol. I, Ex. 5, p. 00196,
McCord Decl., ~ 17.) And, as recently as April 2009, Appellant Anne-
Marie Johnson, SAG's First Vice President, has employed the "written
assent" procedure to approve the appointment of a Hollywood Division Co-
Chair of SAG's Interactive Negotiating Committee. (Bennett Decl., at ~ 5.)
None of the written assents by email/fax poll approved since June 2004
have ever been unanimously approved by all Board members. (Id. at '[4.)
C. Appellants Unsuccessfully Attempt to Enjoin SAG fromActing Pursuant to the Written Assent
On February 3, 2009, Appellants filed a Complaint against SAG and
several of its individual board members for Breach of Fiduciary Duty and
Violation of California Business & Professional Code § 17200.2 (AA, Vol.
2 Appellants recently dismissed the individual board members.
A173036 J23.7/30098 J0·0000337304 4
I, Ex. 1, pp. 00001-20.) Appellants alleged that the January 26, 2009
Written Assent wrongfully "dispensed with the need for prior notice or
actual Board meeting, discharged Mr. Allen from his position, and
disbanded the TV/Theatrical Committee." (Id. at ~ 59, pp. 00009-10.)
Contemporaneous with the filing of their Complaint, Appellants also
filed an Ex Parte Application for a temporary restraining order ("TRO") to
seek to enjoin SAG, its Board, and its newly-appointed interim NED, Chief
Negotiator and Negotiation Taskforce from taking any action under the
January 26, 2009 Written Assent. (AOB, at p. 15; AA, Vol. 1, Ex. 2, pp.
00021-00132.) The relief sought by Appellants' TRO application included
a request that the tem1S of the Written Assent be "lawfully presented to and
approved by a binding vote of the full SAG Board at a properly noticed and
lawful Board meeting ...." (AOB, at p. 16; AA, Vol. I, Ex. 2, p. 00022, II.
6-12; AA, Vol. II, Ex. 6, pp. 00322:2-00323:8.) The Court denied
Appellants' Ex Parte Application on procedural grounds. (AOB, at p. 15.)
On February 5, 2009, Appellants filed a First Amended Complaint
for Declaratory Relief and Violation of Business & Professions Code §§
17200 et seq., again challenging the January 26, 2009 Written Assent, and
renewed their Ex Parte Application for a TRO. (AOB, at p. 16; AA, Vols.
I-II, Exs. 3-6, pp. 00133-320.) A lengthy hearing ensued, at which the
merits of Appellants' Ex Parte Application were argued extensively. (AA,
Vol. II, Ex. 9, pp. 404-437.) The trial court denied the TRO Application;
AI7J036123.7/30098I 0-0000337304 5
ruling, among other things, that Appellants had failed to establish a
probability of success on the merits. (AOB, at pp. 16-17; AA, Vol. II, Ex.
9, p. 00436, 11. 14-23 & Ex. 11, pp. 00444-447.)
D. SAG Holds a Special Meeting to Reaffirm the Acts Passedby the January 26, 2009 Written Assent
On February 3, 2009, the same day that Appellants first filed their
Complaint below, White, as SAG's NED, noticed a special meeting of
SAG's Board for Febmary 8, 2009, pursuant to the requirements of the
SAG's Constitution and By-Laws, including Article V, Section 1(1)(3).
(Bennett Decl., at ~1O; AA, Vol. I, Ex. 5, p. 00245.)
On February 5, 2009, a notice was sent to all members and alternates
of the Board by SAG's standard notification process, advising them that the
agenda for the meeting of February 8, 2009, had been posted to the secure
section of the SAG website designated for Board members and alternates,
and that each attending member would receive a hard copy of the agenda in
advance of the meeting, either by overnight mail or in person. (Bennett
Decl., at ~ 11.) Item 2 on the meeting agenda was the "Adoption and
Reaffirmation of Written Assent of January 26, 2009." (Id. at ~ 11, Ex. B;
RJN, Ex. C, Vol. II, pp. 00460-461,464.)
On February 8, 2009, SAG's Board of Directors convened at a duly-
noticed meeting. (See Bennett Decl., ~~ 10-12.) Each and every member
of the Board was represented. (Id. at ~ 12.) Appellant Rosenberg presided
Ai7J036123.713009810·0000337304 6
over the meeting for nearly its entire duration. (Id.) Rosenberg began the
February 8, 2009 Meeting by adopting the agenda circulated to the
members at White's direction. (Id. at ~ 13 & Ex. C, p. 4.)
At no time prior to the vote adopting the agenda did any Board
member - Appellants included - make a point of order regarding the
validity of the manner in which the meeting was noticed. (Id. at ~ 13.)
And, at no time during the twelve-hour meeting did Rosenberg relinquish
his chair to debate. (See Id. at ~ 12.)
At the meeting, a majority of SAG's Board dealt a fatal blow to the
instant Appeal by affirming and readopting the acts previously passed by
the Written Assent. (See Bennett Dec!., ~ 14.) The matter was debated for
approximately one hour. (Id.) By a resounding 59.02% majority larger
than the 52.52% majority that originally passed the written assent - the
Board voted to reaffirm and readopt the acts previously passed by written
assent. (rd., Ex. C, pp. 12-13.)
Appellants made and seconded a motion to reconsider the vote, and
a point of order was immediately raised, asserting that the motion for
reconsideration was out of order. (rd. at ~ 15, Ex. C, at pp. 13-14.)
Although Rosenberg, as the meeting's chair, ruled that the motion for
reconsideration was in order, he was overruled by a majority of the Board,
who deemed Appellants' motion to reconsider to be out of order. (rd.)
A173036123.71300981 O-OOOOlJ7304 7
E. Appellants Unsuccessfully Seek Expedited"Extraordinary" Writ Review in This Court
On or about February II, 2009, Appellants filed a Petition for Writ
of Mandate ("Writ Petition") in this Court, by which they requested
expedited review of the lower Court's denial of their temporary restraining
order. (RIN, Exhibit A.) Appellants' Writ Petition was summarily denied
on February 13,2009.
III. THE APPEAL IS MOOT AND SHOULD BE DISMISSED
Appellate courts decide only actual controversies and will not
render "advisory opinions." Ebensteiner Co., Inc. v. Chadmar Group, 143
Cal. App. 4th 1174, 1178-79 (2006). As such, "an action, originally based
upon a justiciable controversy, cannot be maintained on appeal if the
questions raised therein have become moot by subsequent events." Clark v.
Mazgani, 170 Cal. App. 4th 1281, 1290, n. 5 (Cal. App. 2d Dist. 2009).
"A case is moot when the decision of the reviewing court can have
no practical impact or provide the parties effectual relief." MHC Operating
Limited Partnership v. City of San Jose, 106 Cal. App. 4th 204, 214 (2003)
("MHC") (internal citations and quotation marks omitted); Eye Dog Found.
v. State Bd. of Guide Dogs for the Blind, 67 Cal. 2d 536, 541 (1967); see
also Childress v. L. Dinkelspiel Co.. Inc, 203 Cal. 262, 263 (1928) (plaintiff
obtained an order enjoining a special board of directors' meeting to elect an
additional corporate director, appeal therefrom was dismissed as moot by
AI7J036 123.713009810·0000337304 8
virtue of the fact that a subsequent annual board meeting had by then been
held, and an entirely new board elected); Chambers v. Ashley, 33 Cal. App.
2d 390, 392 (1939) (order denied mandamus to keep judicial candidate's
name off ballot; appeal was dismissed where judge was elected and
assumed office).
It logically follows that "[w]hen no effective relief can be granted,
an appeal is moot and will be dismissed." MHC, at 214. Indeed, even if
the appeal presents an "interesting question" on the merits, it should
nevetiheless be dismissed as moot where "there is nothing that could be
accomplished" by an order granting the relief previously sought. See
Roscoe v. Goodale, 105 Cal. App. 2d 271, 273 (1951) (granting motion to
dismiss appeal from order denying alternative writ of mandate, where
appellants sought to rescind an allegedly unauthorized city council
resolution in reference to a public improvement project, but where evidence
filed in support of the motion demonstrated that the work referred to in the
resolution had already been completed).
The mootness doctrine has been regularly employed where, as here,
injunctive relief is sought and, pending appeal, the act sought to be enjoined
has been performed. Giles v. Horn, 100 Cal. App. 4th 206, 227 (2002).
For example, if the lower court refuses to restrain the defendant from doing
a particular act, and pending the plaintiff s appeal the defendant does it, an
appeal solely from the order denying the injunction is rendered moot.
A!730J6123.713009810-0000337304 9
9 Witkin, Cal. Proc. 5th (2008) Appeal, § 752, p. 8 I8. See,~, California
Prune & Apricot Growers' Assn. v. Pomeroy Orchard Co., 195 Cal. 264,
266 (1925) (declining to decide statutory arguments and dismissing as moot
an appeal from an order denying an injunction against the sale of a crop,
where crops already had been sold to third parties); Wright v. Bd. ofPublic
Works of Los Angeles 163 Cal. 328, 329 (1912) ("[A] court of equity will
not undertake to restrain the doing of an act, single and complete in its
nature, that has already been performed."); Finnie v. Tiburon, 199 Cal.
App. 3d I, 10 (1988) (dismissing as moot an appeal from an order denying
injunction against a municipal election that was subsequently held while
appeal was pending); Chase v. Brooks, 187 Cal. App. 3d 657, 662 (1986)
(dismissing appeal as moot and denying appellants' request that an election
be treated as a nullity based upon alleged procedural irregularities in
election petition, based upon a finding that the controversy had become
moot once the election was held).
In the contested proceedings below, Appellants expressly sought
injunctive relief prohibiting SAG and the individual defendants "from
taking any action pursuant to the 'written assent' circulated on January 26,
2009 to the members of the Board, until and ifthe terms ofthat written
assent are lawfitllv presented to and approved bv a binding vote ofthe full
SAG Board at a proper/v noticed and lawfitl Board meeting." (AA, Vol. II,
Ex. 6, pp. 00322:20-00323:8 [[Proposed] Order re: Ex Parte Application for
A!730J612J.7/3009810-0000337304 10
Temporary Restraining Order]) (emphasis added).)
Less than two weeks later, on February 8, 2009, the very condition
that Appellants had placed on SAG's ability to take any further action
pursuant to the Written Assent was satisfied: the terms of the disputed
Written Assent were lawfitllv presented to and approved bv a binding
majoritv vote ofSAG 's Board ofDirectors at a properlv noticed and lawfitl
Board meeting. (See Bennett Dec!. at ~~ 10-15.)
Appellants' challenge to the validity of the January 26, 2009
Written Assent is moot-there is no further relief for this Court to grant.
IV. SAG'S FEBRUARY 8, 2009 BOARD MEETING CURED ANYALLEGED DEFECT IN THE JANUARY 26, 2009 WRITTENASSENT
Cognizant of their predicament, Appellants' Opening Brief mounts
an attack on purported procedural and substantive irregularities in the
February 8, 2009 meeting of SAG's Board. (AOB, at pp. 35-37.)
Specifically, Appellants complain oftIu'ee purported "defects" with respect
to the February 8, 2009 Board meeting: (I) that White, SAG's interim
National Executive Director, "was not properly appointed and thus had no
authority to notice any meeting of the Board;" (2) that the February 8
meeting "was conducted in violation of various provisions of Robert's
Rules;" and (3) that the President was "prohibited" from voicing his
position at the February 8, 2009 meeting. (AOB at p. 36.)
Appellants are wrong on all counts.
A173036123.713009810-000033 7304 II
A. The February 8, 2009 Board Meeting Was Duly Noticed
As a threshold matter, Appellants' contention that the February 8,
2009 meeting was improperly noticed is too little, too late. Indeed, in
accordance with Robert's Rules of Order - which Appellants themselves
concede govem all Board meetings by express provision of the SAG
Bylaws (AOB, at p. 36; AA, Vol. I, Ex. 5, p. 00251, Bylaws, Art. V, Sec. 5)
- any member of the Board could have timely challenged the validity of the
notice by raising a point of order to that effect at the outset of the February
8, 2009 meeting. Robert's Rules of Order, Newly Revised, 10th ed.
("Robert's Rules"), § 23, p. 243, 11. 18-20 (providing that a point of order
"must be raised promptly at the time the breach occurs"). However, at no
time prior to the vote adopting the agenda did any member of the National
Board - Appellants included - make a point of order regarding the validity
of the manner in which the meeting was noticed. (Bennett Decl., 'TI 13.)
Quite simply, Appellants have waived their right to complain about the
manner in which the meeting was noticed, and their post-hoc attempt is
unavailing.
In any event, White's Febmary 3, 2009 notice of meeting complied
with the requirements set forth in Article V, Section 1(J)(3) of the Bylaws,
which provides that the National Executive Director may call "[a]dditional
meetings" of the Board of Directors, as long as the Directors are provided
at least three business days notice of such meeting. (Bennett Decl., 'TI 10;
A17J036123. 7/3009810-0000337304 12
AA, Vol. I, Ex. 5, p. 00245.) Indeed, notice of the February 8 meeting was
presumptively proper because every member of SAG's Board was present
or otherwise represented at the meeting. Shamel v. Lite Products Sales,
Inc., 131 Cal. App. 2d 33, 36 (1955) (presence of all directors at a board
meeting waives notice requirement). (See also Bennett Decl., ~ 12.)
Where a corporation ratifies or acquiesces in a board action deemed
procedurally irregular, the action "must stand as the validly authorized act
of the corporation." Robertson v. Hartman, 6 Cal. 2d 408, 412 (1936); see
also Jeppi v. Brockman Holding Co., 34 Cal. 2d 11, 15 (1949) (decision of
board of directors was binding on corporation despite lack of corporate
fOffi1alities, where board's actions were consistent with custom and
practice). Accord, 2 Fletcher Cyclopedia of the Law of Corporations §§
429 (2005-2006 Rev.), p. 293 ("[A]cts of directors at a meeting that was
illegal because of want of notice may be ratified by the directors at a
subsequent legal meeting or by the corporation's course of conduct."), 752
(Supp. 2008-2009), p. 8 (same). As such, Appellants' contentions
regarding illlJI. purported irregularities in the procedures employed by the
Board at the February 8, 2009 meeting are o(no consequence because the
Board exhibited a clear intent to /"atiA' the terms set forth in the Written
Assent-twice.
Furtheffi10re, the reaffirmance of the Written Assent was placed on
the agenda for the February 8, 2009 meeting in accordance with SAG's '
A!7303612J.7/30098 10-0000337304 13
customary notification procedures, and copies of the agenda were
distributed to all of the members of the Board in advance of the meeting.
(Bennett Decl., ~ II, Ex. B.) It was well within Rosenberg's power as the
Chair of the meeting to object to any agenda item at the outset of the
February 8, 2009 meeting. He did not.
The Board's reaffinnation of the acts passed by the Written Assent
at a duly held meeting at which each and every Board member was
represented obviates any relief requested by Appellants. See Cal. Corps.
Code § 7211(a)(8) ("[A]n act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present is the
act of the board.").
B. Robert's Rules Were Not Violated at the February 8, 2009Board Meeting
Appellants next argue that SAG failed to comply with "various
provisions of Robert's Rules" during the February 8, 2009 meeting. (AOB,
at pp. 19,36.) In doing so, Appellants improperly ask this Court to
substitute its judgment for that of SAG's Board on the proper management
of an internal Board meeting. Such relief would plunge this Court into the
"dismal swamp" of an internal union dispute. Kurz v. Fed. ofPetangue,
146 Cal. App. 4th 136, 149-50 (2006). California public policy weighs
heavily against judicial intervention in the internal disputes of unions and
other organizations. See. e.g., Kurz, at 149-50; Calif. Trial Lawyers Ass'n
A173036123.713009810-0000337304 14
v. Superior Court, 187 Cal. App. 3d 575, 580 (1986). Judicial "reluctance
to intervene in internecine controversies ... is premised on the principle
that the judiciary should generally accede to any interpretation by an
independent voluntalY organization of its own rules which is not
unreasonable or arbitraly." Calif. Trial Lawyers, 187 Cal. App. 3d at 580.
Surely, it is not this Court's responsibility to police the conduct of
Respondent's internal board meetings.
Nevertheless, Appellants' first claimed violation of Robert's Rules is
that "[m]otions to 'reaffirm' a position previously taken by motion or
resolution are not in order." (AOB, at p. 19.) Robert's Rules explains that
"[s]uch a motion serves no useful purpose because the original motion is
still in effect. ..." Robert's Rules, § 10, p. 100,11. 11-13. Here, however,
the Written Assent was not "a position previously taken by motion or
resolution." In fact, and ironically, Appellants here contend that the
Written Assent did not constitute a valid Board act at all. Appellants
cannot have it both ways.
Next, Appellants claim that Robert's Rules were violated because,
after the votes were taken and the Written Assent was affim1ed, a Board
member in the minority made a motion to "reconsider and enter on the
minutes" which should have caused the matter to be tabled for
reconsideration at the next meeting. (AOB, at p. 19). Not so. When the
motion to reconsider and enter on the minutes was made, Appellant
A!73036\23.7130098\ 0-0000337304 15
Rosenberg ruled that it was in order. (Bennett Decl., ~ 15.) Thereafter,
however, an appeal from Rosenberg's ruling was moved and seconded,
and, in accordance with Section 24 of Robert's Rules, the Board ruled that
the motion for reconsideration was out of order. (Id.) See Robert's Rules,
§ 24, p. 247, ll. 21-25.
It is important to note that Robert's Rules provide that the purpose of
the procedural mechanism of a "motion to reconsider and enter on the
minutes" is "to prevent a temporal)! majority from taking advantage of an
unrepresentative attendance at a meeting to vote an action that is opposed
by a majority of a society's or a convention's membership." Id. at § 37, pp.
321:35-322:5 (emphasis added).) This is precisely the opposite of the
events that transpired at the February 8, 2009 Board meeting, at which a
minority of the Board sought to upset the majority's decision to reaffiml the
Written Assent by bringing a motion for reconsideration. Indeed, Robert's
Rules caution that a "motion to reconsider and enter on the minutes" is
subject to abuse by a minority group because it "gives any two members
power to hold up action taken by a meeting"-the very abuse that
Appellants were attempting to perpetrate. See Id. at § 37, p. 324, II. 17-22.
Thus, the "motion to reconsider and enter on the minutes" was itself
procedurally improper.
A173036123.713009810-0000337304 16
471,474 (7th Cir. 1952) (where a corporate officer willingly refuses to
perfonn an obligatory clerical duty, he is estopped from complaining that
the meeting went on without him).
V. CONCLUSION
Subsequent to the filing of Appellants' appeal, SAG's Board held a
duly-noticed meeting and reaffinned the acts previously passed by the
Written Assent. As such, any purported defect that existed in the January
26, 2009 Written Assent has long been cured and this appeal is moot.
Accordingly, Respondents respectfully request that this Court dismiss the
Appeal.
DATED: May 20, 2009
A17J036123.713009810-0000337304
Bingham McCutchen LLP
By,---:__--r(~~Z-_Roland Tellis
Attorneys for RespondentScreen Actors Guild
18
CERTIFICATE OF WORD COUNT
I certify that this Motion to Dismiss contains 4,249 words, as
counted by the Microsoft Word 2003 software used to generate it.
DATED: May 20, 2009
A1730J6123.713009810-0000337304
Bingham McCutchen LLP
By:.....:_-----?~-- l--__Roland Tellis
Attorneys for RespondentScreen Actors Guild
19
PROOF OF SERVICE
I am over eighteen years of age, not a party in this action, and employed in
Los Angeles County, California at The Water Garden, Fourth Floor, NOlih Tower, 1620
26th Street, Santa Monica, California 90404-4060. I am readily familiar with the
practice of this office for collection and processing of correspondence for mail/fax/hand
delivery/next business day delivery, and they are deposited that same day in the ordinary
course of business.
On May 20, 2009, I served the attached:
RESPONDENT SCREEN ACTORS GUILD'S MOTION TO DISMISS APPEALAS MOOT
~ (BY MAIL) by causing a true and correct copy of the above to be placed in theUnited States Mail at Santa Monica, California in sealed envelope(s) with postageprepaid, addressed as set forth below. I am readily familiar with this law firm's'practice for collection and processing of correspondence for mailing with theUnited States Postal Service. Correspondence is deposited with the United StatesPostal Service the same day it is left for collection and processing in the ordinarycourse of business.
Sec Attached Service List
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on May 20,
2009, at Santa Monica, California.
N73042763.1/300981 0-0000337304
Eric M. GeorgeSonia Y. LeeBROWNE WOODS GEORGE LLP2121 Avenue of the Stars, 24th FloorLos Angeles CA 90067Tel: 310.274.7100Fax: [email protected]@bwgfirm.com
Vincent F. PittaBarry N. SaltzmanPitta & Giblin LLP499 Park AvenueNew York NY 10022
N73042763.1/300981 0-0000337304
SERVICE LIST
Los Angeles Superior CourtDept. 85 - Judge James C. ChalfantIII North Hill StreetLos Angeles CA 90012
Los Angeles Superior CourtDept. 19 - Judge Judith Chirlin111 N. Hill StreetLos Angeles CA 90012(courtesy copy)