Civil Case No. BC 406900CALIFORNIA 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 County Honorable Judge James C. Chalfant Los Angeles Superior Court Case No. BC406900

RESPONDENT'S BRIEF

Bingham McCutchen LLP Daniel Alberstone (SBN 105275) Roland Tellis (SBN 186269) Sara Jasper Epstein (SBN 240577) Fourth Floor, North Tower 1620 26th Street Santa Monica, CA 90404-4060 Telephone: 310.907.1000 Facsimile: 310.907.2000 Attorneys for Respondent Screen Actors Guild

A173023949.5

TABLE OF CONTENTS

1.

INTRODUCTION STATEMENT OF RELEVANT FACTS A. B.C.

I 4 4 5 7 8 10 II

II.

Events Leading up to Appellants' Filing ofthe Action The January 26, 2009 Written Assent... Appellants Unsuccessfully Attempt to Enjoin SAG from Acting Pursuant to the Written Assent... SAG Holds a Special Meeting to Reaffirn1 the Acts Passed by the January 26, 2009 Written Assent.. Appellants Unsuccessfully Seek Expedited "Extraordinary" Writ Review in This Court... SAG's Membership Overwhelmingly Votes to Ratify a New Contract with the AMPTP

D. E. F. III.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANTS' EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER A. B. C. D. E. F. The Trial Court's Order Did Not "Exceed the Bounds of Reason" California Law Authorizes SAG's Enactment of Bylaws that Govern Voting Procedures SAG's Majority-Vote Written Assent Procedure Does Not Conflict With Section 7211(b) The Tasks Accomplished by the Majority-Vote Written Assent Do Not Conflict With SAG's Bylaws Public Policy Weighs Heavily Against Court Involvement in Internecine Issues Appellants' Requested Temporary Restraining Order Was Flawed

II II 12 16 19 21 24 25 31

IV. V.

THE APPEAL SHOULD BE DISMISSED AS MOOT CONCLUSION

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TABLE OF AUTHORITIES

FEDERAL CASES

Motion Picture & Videotape Editors Guild Local 776, IATSE v. Int'! Sound Technicians Local 695 800 F.2d 973 (9th Cir. 1986)CALIFORNIA CASES

22

Allen v. Hotel & Restaurant Employees' Int'I Alliance & Bartenders' Int'I League 97 Cal. App. 2d 343 (1950) Archdale v. Am. Int'I Specialty Lines Ins. Co. 154 Cal. App. 4th 449 (2007) Association for Los Angeles Deputy Sheriffs v. County of Los Angeles 166 Cal. App. 4th 1625 (Cal. App. 2d Dist. 2008) Blank v. Kirwan 39 Cal. 3d 311 (1985) Braude v. Havenner 38 Cal. App. 3d 526 (1974) Calif. Trial Lawyers Ass'n v. Superior Court 187 Cal. App. 3d 575 (1986) California Dental Ass'n v. Am. Dental Ass'n 23 Cal. 3d 346 (1979) Californians for Fair Representation-No on 77 v. Superior Court 138 Cal. App. 4th 15 (2006) Chantiles v. Lake Forest II Master Homeowners Ass'n 37 Cal. App. 4th 914 (1995) Chernett v. Jacques 202 Cal. App. 3d 69 (1988) Colburn Biological Inst. v. Shaffer 12 Cal. 2d 168 (1938)

24 30

11 12 21, 28 22 21, 22 28 28 25 15

TABLE OF AUTHORITIES (continued)

Conservatorship of Wendland 26 Cal. 4th 519 (2001) Con!'1 Baking Co. v. Katz 68 Cal. 2d 512 (1968) Daily Journal Com. v. County of Los Angeles 172 Cal. App. 4th 1550 (Cal. App. 2d Dist. 2009) Dominguez v. Superior Court 139 Cal. App. 3d 692 (1983) Downtown Palo Alto Com. for Fair Assessment v. City Council 180 Cal. App. 3d 384 (1986) Envtl. Charter High School v. Centine1a Valley Union High School Dist. 122 Cal. App. 4th 139 (Cal. App. 2d Dist. 2004) Giles v. Horn 100 Cal. App. 4th 206 (2002) Haynes v. Annandale Golf Club 4 Cal. 2d 28 (1935) Jennings v. Strathmore Public Util. Dist. 102 Cal. App. 2d 548 (1951) Kurz v. Fed. of Petanque U.S.A. 146 Cal. App. 4th 136 (2006) Marriage of Varner 55 Cal. App. 4th 128 (1997) MHC Operating Ltd. P'ship v. City of San Jose. 106 Cal. App. 4th 204 (2003) Oakland Raiders v. Nat'! Football League 131 Cal. App. 4th 621 (2005) People v. Garde1ey 14 Cal. 4th 605 (1996)

28 24 25,27 30 25

28 27,29 21 27 22 12 29 22 19

111A!73023949.5

TABLE OF AUTHORITIES (continued)

People v. Travis 139 Cal. App. 4th 1271 (2006) Robbins v. Superior Court 38 Cal. 3d 199 (1985) Salazar v. Eastin 9 Cal. 4th 836 (1995) Stewart v. Superior Court of San Diego County 100 Cal. 543 (1893) Walker v. Superior Court 53 Cal. 3d 257 (1991) White v. Davis 30 Cal. 4th 528 (2003) Williams v. Inglewood Bd. of Realtors. Inc. 219 Cal. App. 2d479 (1963)CALIFORNIA STATUTES

28

12

12

24

12

28

15, 21

Business & Professions Code Inoo Civil Code 2313 Corporations Code 307 Corporations Code 307(b) Corporations Code 7150 Corporations Code 7150(c) Corporations Code 7151 Corporations Code nIl Corporations Code nIl (a)(8) Corporations Code nll(b) Corporations Code n20IVA173023949.5

7, 8 29, 30 17, 18 18 13,14 13 13, 16 17 18, 26 passim 13, 14

TABLE OF AUTHORITIES (continued)

Corporations Code 7224 Corporations Code 7512 Corporations Code 7613 Corporations Code 7615OTHER AUTHORITIES

13 13 13 13

13 Cal. Law Revision Comm'n Reports, Recommendations and Studies 2201, 2228 (1976) 3-19 Ballantine and Sterling California Corporation Laws (2008) 405.02[1] 3-19 Ballantine and Sterling California Corporation Laws 404.04[1] Notes of Decisions No.2, Deering's Ann. Cal. Corps. Code. 7151 (2008)

18

14, 15

21

15

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I.

INTRODUCTION

Appellants ask this Court to do as they say, but not as they do. Respondent Screen Actors Guild ("SAG") and its members are governed by SAG's duly-enacted Constitution and Bylaws. For decades, that Constitution and Bylaws have permitted the use of a "written assent" procedure allowing SAG's governing Board of Directors to take action without a meeting, so long as the Board action was supported by a majority vote. Indeed, during the presidency oflead Appellant Alan Rosenberg andthe vice-presidency ofAppellant Ann-Marie Johnson, SAG's Board has

utilized, without objection, the majority-vote "written assent" procedure onnumerous occasions. So what changed? In a nutshell, Appellants 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 refused to accept defeat. Appellants filibustered a Board meeting vote, and so SAG utilized its long-standing, majority-vote written assent procedure. Appellants now claim on appeal that the lack of a Board meeting renders SAG's majority-vote "written assent" election process invalid. In doing so, Appellants urge this Court to disregard a decadeslong, accepted practice explicitly permitted by SAG's governing documents, and would require SAG to adopt inapplicable provisions of the California Corporations Code. Moreover, Appellants apparently choose to ignore the fact that the identical acts passed by the contested written assentIA!73023949.5

were subsequently reaffirmed and readopted by a majority of SAG's Board at a duly held meeting, at which every member of the Board was represented. Settled Califomia law and public policy weigh heavily against this Court's involvement in this intemecine feud. Appellants contend that California law prohibits SAG from acting by majority written assent in accordance with its longstanding Bylaws and Constitution (see Appellants' Opening Brief ["AOB"], at p. 2)-even though Appellants themselves have utilized the exact same procedure on numerous occasions. Appellants further contend that this appeal presents "a critical question of first impression in the courts of the state" that will "provide guidance ... for all California corporations and for all future cases involving such corporations." (AOB, at p. 21.) Appellants are wrong on both counts. First, SAG's Board consists of71 members, who reside in different states and who collectively represent the diverse interests of SAG's approximately 120,000 members. Appellants' proposed interpretation of California Corporations Code Section 7211 (b) would prevent the Board from taking any action in the absence of a formal meeting unless all 71members of the Board reached unanimous agreement. Appellants' position

is not only contrary to a straightforward reading of Section 7211 (b) and its greater statutory scheme but would effectively paralyze SAG's goveming body and cripple its ability to efficiently make decisions, given the unique

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size and structure of its Board. Indeed, it was SAG's choice to avoid the unanimous written consent procedure suggested by Section 7211 (b) by instituting a majority-vote provision in its Bylaws and Constitution that would better suit its needs. Appellants' proposed rigid interpretation of Section 7211 (b) finds no support in California law or public policy. Not only has our Legislature made clear that strong principles of corporate self-determination lay at the heart of the Califomia Corporations Code, but our Courts have similarly been loath to interfere in the corporate sphere. Second, contrary to Appellants' elevated rhetoric, this appeal does not present a "critical" or unsettled issue that requires this Court's inm1ediate attention. Rather, these proceedings are little more than a pretext for Appellants' attempt to end-run a months-old decision made by a majority of SAG's governing Board. Appellants were neither "prejudiced" nor "disempowered" by the acts passed by a majority of the Board on January 26, 2009-they were simply outvoted. Indeed, there is very good reason why this Court has never before felt the need to comment on Section 7211(b). With few exceptions, the minutiae ofa corporation's selfgovernance decisions are best left in the boardroom, /lot the courtroom. The lower court exercised sound discretion when it correctly found that the California Legislature has sanctioned a company's use of bylaws to regulate the conduct of its affairs, and that SAG's enactment of bylaws that 3A173023949.5

provide for a majority-vote "written assent" procedure is authorized by, and does not conflict with, settled California law. Respondent SAG respectfully requests that the Court deny this appeal and affirm the trial court's February 5, 2009 order denying Appellants' ex parte application for a temporary restraining order. II. STATEMENT OF RELEVANT FACTS

A.

Events Leading up to Appellants' Filing of the Action

Beginning in April 2008, SAG began negotiations with the Alliance of Motion Picture and Television Producers ("AMPTP") regarding the tenns of SAG's collective bargaining agreement. (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 theSAG/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 after many months of bargaining, and a deep rift had fornled among SAG's members regarding the manner in which SAG should approach the negotiation process. Fueled by concerns about the state of the economy, many members of SAG's governing Board believed that a change in SAG's leadership would revive the contract negotiations and avoid further job losses.4AJ73023949.5

On January 12 and 13,2009, SAG's Board of Directors (the "Board") held a 28-hour "marathon" meeting. (Respondent's Request for Judicial Notice ["RRJN"], Ex. 2, pp.034-35, Declaration of Michelle Bennett ["Bennett Decl."], at ~ 8.) Appellant Alan Rosenberg ("Rosenberg"), SAG's President, presided over the meeting as its 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 RRJN, Ex. 2, pp. 03435, Bennett Decl., 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"). (RRJN, Ex. 2, pp. 035& 039-40, Bennett Decl., at ~ 9; AOB, at pp. 10-11; see also Appellants'

Appendix ["AA"], Vol. 1, Ex. 5, pp. 00231-233.) Among other things, the Written Assent terminated Allen as NED and Chief Negotiator and installed David White ("White") as interim NED and Jolm T. McGuire ("McGuire") as interim Chief Negotiator. (rd.) Polls taken by email and/or fax are the commonly used fonn of written assent provided for by Article V, Section 1(J)(4) of SAG's

5Ai73023949.5

Constitution and By-Laws, and have been considered valid acts of SAG's Board for many years. (RRJN, Ex. 2, p. 031, 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 of 2004, SAG has conducted ten separate email/fax polls of the Board, resulting in decisions on thirteen different questions submitted to the Board. (RRJN, Ex. 2, pp. 031-32, Bennett Dec!., at'l14.) The types of issues 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 tem1ination 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 ~'114-5.) 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, Vo!. 1, Ex. 5, p. 00196, McCord Dec!., '1117.) And, as recently as April 2009, Appellant AnneMarie Jolmson, SAG's First Vice President, has employed the "written assent" procedure to approve the appointment of a Hollywood Division CoChair of SAG's Interactive Negotiating Committee. (RRJN, Ex. 2, p. 032,6AI7J023949.5

Belmett Decl., at 'If 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 pp. 031-32, Bennett Decl., 'If 4.)C. Appellants Unsuccessfully Attempt to Enjoin SAG from Acting 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. 1 (AA, Vol.1, Ex. 1, pp. 00001-20.) Appellants alleged that the January 26, 2009

Written Assent wrongftilly "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 'If 59, pp. 00009:27-10:1.) 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. 00021-00 I32.) The relief sought by Appellants' TRO application included a request that the tenllS 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 ...." (AA, Vol. 1, Ex. 2, p. 00022, II. 6-12; AA,

I

Appellants recently dismissed the individual board members.7

A/7J023949.5

Vol. 2, Ex. 6, pp. 00322:20-00323:8.) 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. 1-2, Exs. 3-6, pp. 00133-320.) A lengthy hearing ensued, at which the merits of Appellants' Ex Parte Application were argued extensively. (AA, Vol. 2, Ex. 9, pp. 404-437.) The trial court denied the TRO Application, ruling, among other things, that Appellants had failed to establish a probability of success on the merits. (AOB, at pp. 16-17; AA, Vol. 2, Ex. 9, p. 00436, II. 14-15, 19-23 & Ex. 11, pp. 00444-447.)

D.

SAG Holds a Special Meeting to Reaffirm the Acts Passed by 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 February 8, 2009, pursuant to the requirements of the SAG's Constitution and By-Laws, including Article V, Section I(J)(3). (RRJN, Ex. 2, pp. 035-36, Bennett Decl., at '1110; 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

8A173023949.5

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 ovemight mail or in person. (RRJN, Ex. 2, p. 36, Bennett Dec!., at ~ II.) Item 2 on the meeting agenda was the "Adoption and Reaffirmation of Written Assent of January 26, 2009." (Id. at pp. 36,41; Appellants' Request for Judicial Notice ["ARJN"], Ex. C, pp. 00460-461, 00464, Declaration of Alan Rosenberg, at ~ 16.) On February 8, 2009, SAG's Board of Directors convened at a dulynoticed meeting. (See RRJN, Ex. 2, pp. 035-37, Bennett Dec!., ~~ 10-12.) Each and every member of the Board was represented. (Id. at ~ 12.) Appellant Rosenberg presided 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 pp. 037, 046, Bennett Dec!., ~ 13.)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. (RRJN, Ex. 2, p. 37, Bennett Dec!.,~

13.) And, at no time during the twelve-hour meeting

did Rosenberg relinquish his chair to debate. (See Id. at pp. 036-37, Bennett Dec!.,~

12.)

9AI7J023949.5

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 RRJN, Ex. 2, pp. 037-38, 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. (RRJN, Ex. 2, pp. 054-55.) 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. (RRJN, Ex. 2, pp. 038 & 055-56, Bennett Dec!., ~ IS.) Although Rosenberg, as the meeting's chair, ruled that the motion for reconsideration was in order, he was ovemJied by a majority of the Board, who deemed Appellants' motion to reconsider to be out of order. (RRJN, Ex. 2, p. 038, Belmett Dec!., ~ IS.)

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. (ARIN, Ex. A.) Appellants' Writ Petition was summarily denied on February 13,2009.

10A173023949.5

F.

SAG's Membership Overwhelmingly Votes to Ratify a New Contract with the AMPTP

On June 9, 2009, SAG's members voted to approve a two-year TV/Theatrical contract with the AMPTP, by a vote of78 percent to 22 percent, with more than 30,000 members voting in favor. (RRJN, Exs. 4, 5, pp. 101, 105.) This is the same contract that was the subject of the negotiations that led to SAG's passage and subsequent reaffirmation of the January 26, 2009 Written Assent. Among other things, the Written Assent removed a committee that had been involved in the negotiation of the same TV/Theatrical contract that was ratified on June 9, 2009. (AOB, at p. 11.) SAG's new two-year agreement covers film and digital television programs, motion pictures and new media productions, and expires on June 30,2011. (RRJN, Ex. 4, at p. 101.)

III.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANTS' EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER A. The Trial Court's Order Did Not "Exceed the Bounds of Reason"

In view of the discretion vested in the trial court in addressing an application for temporary restraining order or motion for a preliminary injunction, appellate review of a trial court's ruling in such a proceeding is extremely deferential. Ass'n for Los Angeles Deputy Sheriffs v. County of Los Angeles, 166 Cal. App. 4th 1625, 1634 (Cal. App. 2d Dist. 2008) (affirming denial of motion for preliminary injunction). As Appellants 11A173023949.5

concede (see AOB, at p. 23), a reviewing court shall not disturb a trial court's decision to grant or deny a motion for a preliminary or temporary injunction absent a showing that the h'ial court abused its discretion. Salazar v. Eastin, 9 Cal. 4th 836, 849-50 (1995); see also Robbins v. Superior Court, 38 Cal. 3d 199,205 (1985). The test for abuse of discretion is whether the trial court "exceeded the bounds of reason." Walker v. Superior Court, 53 Cal. 3d 257, 272 (1991); see also Blank v. Kirwan, 39 Cal. 3d 311, 331 (1985) ("unless a clear case of abuse is shown and unless there has been a miscarriage ofjustice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power."); Marriage of Varner, 55 Cal. App. 4th 128, 138 (1997) ("[t]he showing on appeal is wholly insufficient ifit presents a state of facts ... which ... merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.") (internal quotation marks omitted). The hefty burden of establishing an abuse of discretion lies squarely on Appellants. See Blank, at 331.

B.

California Law Authorizes SAG's Enactment of Bylaws that Govern Voting Procedures.

Appellants concede that SAG's bylaws authorize a majority-vote "written assent" procedure without a meeting. (AOB, at p. 21.) Specifically, Article V, 1 (J) (4) of SAG's bylaws provides:

12AI7J023949.5

Except as provided otherwise in this Constitution, any acts shall be validfor all

purposes with or without a meeting if approved by the written assent ofa majority ofthe votes ofthe Board ofDirectors, or such higherpercentage of the Board votes as may be required by this Constitution. (See AA, Vol. 1, Ex. 5, p. 00245 [emphasis added].) Appellants do not - because they cannot - dispute that SAG has utilized and implemented such majority-vote written assent procedures on numerous occasions in the past. (See AA, Vol. 1, Ex. 5, p. 00196, Declaration of Kent McCord, ~ 17 [describing SAG's use of the majoritymle written assent procedure].) Indeed, such practice was utilized multiple times under the Presidency of Plaintiff Alan Rosenberg and First Vice President Anne-Marie Johnson, respectively. (See RRJN, Ex. 2, pp. 03132, Bennett Decl., ~~ 3-5.) Section 7150 of the Corporations Code provides that a non-profit may adopt bylaws "[e]xcept as provided in subdivision (c) and Sections 7151,7220,7224,7512,7613 and 7615." Corp. Code 7150. Section 7211 (b) of the Corporations Code, on which Appellants rely, is not

13A173023949.5

included in the list of statutes that are not subject to variation by bylaws. 2 SAG's ability to regulate its affairs through bylaws is unremarkable and, indeed, the preferred practice. A leading corporate treatise in California explains that the Nonprofit Mutual Benefit Corporation Law, under which SAG was organized, "provide[s] relatively detailed statutory rules respecting the conduct of directors' meetings, but with relatively few exceptions these can be changed by the articles or bylaws." See 3-19 Ballantine and Sterling California Corporation Laws (2008) 405.02[1] (emphasis added). Therefore, when drafting bylaws, "consideration should be given at that stage to the need or desirability of altering the statuto I)!

scheme infavor ofone exactly tailored to a cOlporation 's needs." Id.(emphasis added). (AA, Vol. 2, Ex. 8, p. 00400.) The treatise further explains that "[t]he bylaws of a nonprofit corporation, like those of a business corporation, mainly regulate the internal affairs of the corporation. However, to the extent that they specifY membership rights (as they frequently do), the bylaws ofa nonprofit

cOlporation serve a more important jililction than those ofa business cOlporation, the rights of whose shareholders must appear in the articles."

By way of example, Section 7220, which is expressly named in Section 7150 as a statute that cannot be varied by a corporation's bylaws, provides: "[n} 0 amendment ofthe articles or bylaws may extend the term oj a director beyond that for which the dIrector was elected, nor may any bylaw provision increasing the terms of directors be adopted without approval of the members...." Corps. Code 7220(a) (emphasis added). No such prohibitory language appears in Section 7211 (b).2

14A173023949.5

Id. at 404.04[1] (emphasis added). (AA, Vol. 2, Ex. 8, p. 00399.) Our Supreme Court has upheld and enforced corporate bylaws providing for a majority vote of the corporation's goveming members without a meeting. Colbum Biological Inst. v. Shaffer, 12 Cal. 2d 168, 169 (1938) (holding that where bylaws of corporation provided for a threefourths (3/4) majority of trustees to make decisions on behalf of the organization by a written resolution without a meeting, the vote of three trustees over the objection of a fourth was valid and binding on the corporation); see also Notes of Decisions No.2, Deering's Ann. Cal. Corps. Code. 7151 (2008). The Colbum decision is entirely consistent with the lower court's ruling in this case, that the "written assent" procedure provided in Article 5 I (J)(4) of SAG's bylaws does not violate - and if anything, is harmonious with - longstanding Califomia law. Courts should abstain from wholesale interference in a corporation's chosen manner of self-govemance. Williams v. Inglewood Bd. of Realtors, Inc., 219 Cal. App. 2d 479, 488 (1963) ("In general the by-laws of associations organized for social, charitable, moral, or religious purposes will not be scrutinized closely by the courts, nor will they be interfered with unless there has been an abuse of discretion and a clear, unreasonable and arbitraly invasion of private rights.").

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C.

SAG's Majority-Vote Written Assent Procedure Does Not Conflict With Section 7211(b).

Appellants argue, for the first time, that SAG's majority-vote written assent procedure violates Section 7151 of the Corporations Code, which provides that "[t]he bylaws may contain any provision ...not in conflict with law...." Corps. Code 7151. According to Appellants, because SAG's majority-vote, written assent procedure "conflicts" with Section 7211(b)'s unanimous-vote, written consent procedure, SAG's bylaws violate Section 7151. Not so. First, Section 7211(b) provides that "[a]n action required or permitted to be taken by the board may be taken without a meeting, if all members of the board shall individually or collectively consent in writing to that action." Corps. Code 7211(b) (emphasis added). By its terms, Section 7211 (b) applies only to acts for which a board meeting is required. Here, however, SAG's majority vote, written assent procedure is an act for which a board meeting is not required. 3 Bylaws, Art. V I (J)(4). (AA, Vol. I, Ex. 5, p. 00245.) Aside from the plain language of SAG's written assent bylaw, multiple provisions governing the voting and3 SAG's bylaws specify the particular types of board actions that require a meeting. See, e.g., Art. V 1 (J)(2)(a)(b) [vote to extend length ofa board meeting] (AA, Vol. I, Ex. 5, p. 00245); Art. V 3 (H) (1)-(2) [nomination and election of individual to fill vacancies in offices of President and Secretary-Treasurer] (AA, Vol. I, Ex. 5, pp. 00250-51); Art. XVIII I(a) [amendment, adoption or repeal of ConstItution or By-laws] (AA, Vol. I, Ex. 5, p. 00269); Art. XI 3(A), incorporating by reference Appendix I, (I)(C) [voting at Joint Board of Directors' meetings of the American Federation of Television and Radio Artists ("AFTRA") and SAG] (AA, Vol. I, Ex. 5, pp. 00264 & 00275).

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quorum procedures attendant to meetings of SAG's Board of Directors expressly affirm the Board's right to act without a meeting by the written assent of a majority of votes of its members. See Art. V I (J)(5)(f) [governing the counting of votes at SAG board meetings less than two directors are present from each division of the organization] ("Nothing in this Section shall be construed so as to limit the authority of the Board of Directors to act by written assent as provided by Section 4 of this Article.") (AA, Vol. I, Ex. 5, p. 00246); Art. V. I (J)(6) [requiring that all voting at board meetings be done in person or by telephone or videoconference] (" ... this shall not preclude the right of the Board of Directors to act by written assent of a majority of votes of its members, or such higher percentage of the Board votes as may be required by this Constitution.") (AA, Vol. I, Ex. 5, p. 00247). Accordingly, where SAG's bylaws clearly authorize the Board to act by majority assent without a meeting, imposition of Section nil (b)'s onerous unanimity requirement - which applies to board acts that require a board meeting - would impose a far greater burden on SAG's decisionmaking procedures than SAG's founding documents contemplate. Second, Section nil (b) can only be construed as a "default" statute that is subject to variation by bylaws adopted by a non-profit corporation for its own self-governance. An examination of the Legislative history of Section 1211's sister statute - Corporation Code Section 307 - is 17A173023949.5

instructive in this regard. Section 307(b) is identical to Section 7211(b), but it applies to for-profit corporations. See 13 Cal. Law Revision Comm'n Reports, Recommendations and Studies 220 I, 2228 (1976) (stating that, in recommending the provisions of the Corporations Code that presently govern nonprofit corporations, the provisions of the new non-profit chapter generally follow the substance of the General Corporation Law). (AA, Vol. 2, Ex. 8, p. 00403.) The legislative comments contained in the annotations to Section 307 expressly state that it may be amended by bylaws, as follows: "This section contains technical mles relating to the calling, noticing and functioning of board meetings ... all ofthese provisions are

subject to alteration in the articles (including any 'super-majority' vote requirement) or bylaws." Legis. Com. com., Deering's Ann. Cal. Corps.Code 307 (2008) (emphasis added). (AA, Vol. 2, Ex. 8, p. 00384.) It would be anomalous to treat Section 7211 (b), which parallels Section 307(b) verbatim, any differently. Finally, it is important to note that in enacting the Corporations Code, the California legislature made it a point to note when its provisions

cannot be varied by a company's bylaws. For example, Section 7211(a)(8)provides "[t]he articles or bylaws may not provide that a lesser vote than a majority of the directors present at a meeting is the act of the board." Corps. Code 7211(a)(8) (emphasis added). No such prohibitory language appears in Section 7211 (b). And, as Appellants aptly note in their Opening 18A173023949.5

Brief, no such prohibitOlY language should be implied where the Legislature has intentionally excluded it. (See AOB, at p. 25, citing People v. Gardeley, 14 Cal. 4th 605, 621-22 (1996) ["When the Legislature has used a tenn or phrase in one part of a statute but excluded it from another, courts do not imply the missing term or phrase in the part of the statute from which the Legislature has excluded it."].)

D.

The Tasks Accomplished by the Majority-Vote Written Assent Do Not Conflict With SAG's Bylaws

Appellants erroneously contend that one of the acts accomplished by the majority-vote written assent - disbanding the TV/Theatrical Committee and fonning a "Negotiation Taskforce" in its stead - violated Article VI, Section 7(A) of SAG's bylaws, which requires a two-thirds vote of the Board to "remove any conmlittee member, alternate or co-chair." (AOB, at pp. 31-32; AA, Vol. I, Ex. 5, p. 00254.) In support of their contention, however, Appellants repeat the same erroneous arguments that the Court below already considered and rejected. Appellants mischaracterize the written assent's wholesale disbanding of the TV/Theatrical Committee as the effective "removal" of 12 "committee members," in an attempt to bring the Board's action within the purview of the two-thirds requirement of Article VI, Section 7(A). (AOB, at p. 34.) However, no committee members were removed from a committee, and Appellants simply apply the wrong bylaw provision to the

19A173023949.5

Board's conduct. Critically, SAG's bylaws permit the Board to establish committees "which shall serve at its pleasure." See Article V, Section 1(I)(3). (AA, Vo!. 1, Ex. 5, p. 00244.) Additionally, SAG's Article V, Section 1(I)(4), provides that "the Board of Directors may, from time to time, delegate any of its powers and duties to any committees, which delegation shall be

revocable by the Board ofDirectors at any time." (1d. [emphasis added].)This is precisely what SAG's Board accomplished by the written assent. It exercised its right to disband the TV/Theatrical Committee in its entirety, and did not "remove" any of its individual conmlittee members. Appellants improperly conflate the concepts of a "COlmnittee" and a "Taskforce," which are accorded disparate and distinct roles under SAG's longstanding rules of govemance. (RRJN, Ex. 2, pp.033-34, Bennett Dec!., at ~ 7.) Appellants lament that the Taskforce created by the Written Assent is actually the "TV/Theatrical Committee in disguise." (AOB, at p. 33.) Appellants are misguided. While SAG's National Board has the power under Article V, Section 1(1)(4) to delegate its authority to a committee, there is no authority for the Board to delegate its authority to a "taskforce." (AA, Vo!. 1, Ex. 5, p. 00244.) Thus, unlike the TV/Theatrical Committee, the Taskforce has no authority to act on the Board's behalf, but can only make recommendations on which the Board has discretion to act. (RRJN, Ex. 2, pp. 033-34, Bennett Dec!., at ~ 7.) 20A!73023949.5

E.

Public Policy Weighs Heavily Against Court Involvement in Internecine Issues

SAG has the authority to adopt, amend, or repeal bylaws, but that power is subject to limitations contained in its articles of incorporation, in the Nonprofit Mutual Benefit Corporation Law, and in the bylaws themselves once adopted. Within these limits, SAG has a "free hand" in regulating its affairs, "the only other test of the validity of bylaws being whether they operate reasonably and equally as to all members." See 3-19 Ballantine and Sterling California Corporation Laws 404.04[1] (AA, Vol. 2, Ex. 8, p. 00399); accord Braude v. Havenner, 38 Cal. App. 3d 526, 533 (1974); Haynes v. Annandale Golf Club, 4 Cal. 2d 28,30 (1935). Courts must guard against unduly interfering with an organization's autonomy by substituting judicial judgment for that of the organization in an area where the competence of the court does not equal that of the organization. See California Dental Ass'n v. Am. Dental Ass'n, 23 Cal. 3d 346, 353-354 (1979). "The practical and reasonable construction of the constitution and bylaws of a voluntary organization by its governing body is binding on the membership and will be recognized by the courts." Williams, supra, 219 Cal. App. 2d at 486. Below, Appellants did not challenge SAG's enactment of its bylaws. Instead, they asked the trial court, and now this Court, to substitute its judgment for that of SAG's Board of Directors on questions such as the

21AI7J023949.5

proper interpretation of SAG's governing documents and the proper management of SAG. Such relief would plunge this Court into the "dismal swamp" of an internal union dispute. Kurz v. Fed. ofPetangue U.S.A., 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; Oakland Raiders v. Narl Football League, 131 Cal. App. 4th 621, 644-45 (2005); Calif. Trial Lawyers Ass'n v. Superior Court, 187 Cal. App. 3d 575, 580 (1986); Motion Picture & Videotape Editors Guild, Local 776, etc. v. Inri Sound Technicians, etc., Local 695, 800 F.2d 973, 975 (9th Cir. 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 voluntary organization of its own rules which is not unreasonable or arbitrary." Calif. Trial Lawyers, 187 Cal. App. 3d at 580. Courts may also decline to exercise jurisdiction over intemal organizational disputes if "the resulting burdens on the judiciary outweigh the interests of the paliies at stake." Calif. Dental Ass'n, 23 Cal. 3d at 353. Appellants half-heartedly argue - without any factual or legal support - that "public policy" considerations mandate reversal of the lower Court's order and require that a corporation's "written assent must be unanimous." (AOB, at pp. 29-31.) Indeed, Appellants' cited authoritiesmost of which are either unpublished or hail from other jurisdictions - are 22A173023949.5

inapposite. And, Appellants' assertion that "there was no exchanging of views and no deliberate consideration of any issue" is belied by the facts. In reality, Appellants and the other opponents ofthe Written Assent had a full and fair opportunity - and did - debate its merits on at least two occasions. The issues encompassed by the challenged Written Assent were first debated at a 28-hour-long Board meeting that took place on January 12 and 13,2009, at which Appellants and their allies opted to filibuster at the 28-hour January meeting instead of allowing the Board to vote. (See RRJN, Ex. 1, p. 009 & Ex. 2, pp. 034-35, Bennett Dec!., at ~ 8). Upon Appellants' insistence that SAG convene a formal Board meeting, theidentical issues were debated yet again for approximately one hour at the

February 8, 2009 Board meeting, at which a majority of SAG's Board of Directors voted to reaffiml and readopt the acts previously passed by the Written Assent. (RRJN, Ex. 1, pp. 023-24 & Ex. 2, pp. 036-38, Bennett Dec!., at ~~ 12-14.) By all accounts, the issues passed by the January 26, 2009 Written Assent - and subsequently re-affirmed at a duly-held Board meeting - were deliberately vetted and considered by SAG's Board of Directors. The notion of "negotiated consensus" upon which Appellants dwell is purely aspirational and has no practical application here. All that is required by California law - and by SAG's governing documents - is that a majority of SAG's Board reach a reasoned decision in order to bind the corporation. 23A173023949,5

It is ironic that Appellants purport to base this appeal on principals

of democratic self-govemance, yet complain that SAG's actions contravene "public policy" when they find themselves on the losing side of a democratically-administered vote.

F.

Appellants' Requested Temporary Restraining Order Was Flawed

A temporary restraining order or preliminary injunction is not designed to restore the parties to the status they occupied prior to the acts complained of. See Cont'l Baking Co. v. Katz, 68 Cal. 2d 512, 528 (1968) ("The general purpose of [a preliminary] injunction is the preservation of the status quo until a final determination of the merits of the action."); Stewart v. Superior Court of San Diego County, 100 Cal. 543, 546 (1893) ("The office of a writ of injunction, as its name imports, is peculiarly a preventive and not a remedial one; it is to restrain the wrongdoer, not to punish him after the wrong has been done or to compel him to undo it."); see also Allen v. Hotel & Restaurant Employees' Int'l Alliance & Bartenders' Int'I League, 97 Cal. App. 2d 343, 348 (1950). Here, however, Appellants' requested temporary restraining order did not seek to preserve the status quo - it sought to radically alter it. In essence, Appellants asked the Court below, under the guise of a temporary restraining order, to suasponte revise SAG's bylaws, and restore SAG's former leadership. That is

not the function of a temporary restraining order, and the trial Court acted

24A!73023949.5

correctly in denying Appellants' request. Accordingly, the very relief that Appellants seek on this appeal- for this Court to "undo" the events of the past six months and to restore the parties to the positions they occupied before January 26, 2009 - is not only impracticable, but is contrary to law.

IV.

THE APPEAL SHOULD BE DISMISSED AS MOOTSAG's previously filed motion to dismiss this appeal as legally moot

was denied by this Court on June 9, 2009. Since then, additional events have transpired that - in themselves - moot important aspects of this appeal, including, inter alia, Appellants' efforts to restore a negotiating conmlittee whose primary charge was to negotiate the same TV/Theatrical Agreement ratified by SAG's membership on June 9, 2009. SAG respectfully renews its challenge to this appeal as moot. See Chernett v. Jacques, 202 Cal. App. 3d 69, 71 (1988) (court may consider merits of dismissability issue following initial denial of motion to dismiss appeal)."It is well settled that an appellate court will decide only actual

controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed." Daily Journal Corp. v. County of Los Angeles, 172 Cal. App. 4th 1550, 1557 (Cal. App. 2d Dist. 2009); accord Downtown Palo Alto Com. for Fair Assessment v. City Council, 180 Cal. App. 3d 384,391 (1986) ("[A]n appeal presenting only abstract or academic questions is subject to dismissal as moot."). On February 8, 2009, following the Respondent Court's denial of Appellants' 25A173023949.5

Ex Parte Application for a temporary restraining order, SAG's Board of Directors convened at a duly-noticed meeting. (See RRJN, Ex. 2, pp. 03537, Bennett Dec!., "iI"iI 10-12.) At the meeting, a majority of SAG's Board removed any doubt as to the legitimacy of its actions by affirming and

readopting the acts previously passed by written asset. Based on this fact alone, the entire Appeal should be dismissed as moot.As an initial matter, Appellants mischaracterize the Board's February 8, 2009 vote as an affirmance of an illegal act. (AOB, at pp. 3637; RRJN, Ex. 3, p. 70, Opp. to Motion to Dismiss.) However, the Board's majority decision to affirm and readopt the acts passed by the January 26, 2009 Written Assent was not a vote to "retroactively validate" the Written Assent. To the contrary, the February 8, 2009 vote - which took place at a duly held meeting at which every Board member was represented constituted an independent and presumptively valid act of the Board. See Corps. Code 7211(a)(8). (See also RRJN, Ex. I, pp. 018-024.) That act superseded the January 26, 2009 Written Assent and rendered the instant appeal moot. Indeed, much to Appellants' chagrin, the Board's February 8, 2009 vote reaffinned the same acts passed by the January 26, 2009 Written Assent by an even larger majority. (RRJN, Ex. 2, pp. 037-38, Bennett Dec!.,

'1 14.)

Appellants' purported attack on the procedures applied at the

Board's February 8, 2009 meeting is nothing more than a transparent, "Hail Mary" attempt to reverse the majority's decision. 26A173023949,5

Yet another subsequent event moots at least part of this appeal. On June 9, 2009, an overwhelming majority of SAG's membership ratified a new TV/Theatrical contract with the AMPTP. (RRJN, Exs. 4, 5, pp. 101, 105). The instant appeal, however, predominantly concerns Appellants' challenge to SAG's January 26, 2009 Written Assent, which, among other things, disbanded a TV/Theatrical Negotiating Conunittee whose primary charge was to negotiate the Vel)1 same contract with the AMPTP that has now been ratified. (See AOB, at p. 11; RRJN, Ex. 2, p. 039.) Clearly, this Court can no longer restore a conunittee for the purpose of negotiating the TV/Theatrical agreement-because those contract negotiations have already concluded. See, ~ Daily Journal Corp., 172 Cal. App. 4th at 1557 (appeal that sought to unwind and declare invalid a contract that had already expired by its own tenns was moot); Giles v. Hom, 100 Cal. App. 4th 206, 219 (2002) (appeal in action to enjoin county's expenditure of public funds to hire private contractors dismissed as moot where contracts expired and were fully perfonned pending appeal); Jennings v. Strathmore Public Util. Dist., 102 Cal. App. 2d 548, 549 (1951) (dismissing appeal as moot where plaintiff appealed trial court's denial of injunction to declare a public utility district contract invalid, after the contract had been awarded and work under the contract fully completed). In their opposition to Respondents' Motion to Dismiss Appeal as Moot, Appellants correctly identified two well-established discretionary 27A173023949.5

exceptions to the rules regarding mootness: (l) when the case presents an issue of broad public interest that is likely to recur; (2) or when there may be a recurrence of the controversy between the parties. See Envtl. Charter High School v. Centinela Valley Union High School Dist., 122 Cal. App. 4th 139, 144 (Cal. App. 2d Dist. 2004). (RRJN, Ex. 3, pp. 093-94.) However, neither of those exceptions applies here. First, this case - which involves a challenge by a highly litigious minority faction of an entertainment guild to the Board's decision to replace members of the union's leadership - does not present an issue of "substantial and continuing public interest." California's appellate courts have historically invoked the "public interest" exception to the mootness doctrine only in cases that either affect a large subset of California's population,4 or present issues of widespread constitutional or fiscal impact. 5

4 See, e.g., Chantiles v. Lake Forest II Master Homeowners Ass'n, 37 Cal. App. 4th 914,922 (1995) (analogizing homeowners associations to "minigovernments" that affect "a large number" of California citizens); Braude v. Havenner, 38 Cal. App. 3d 526, 529-30 (1974) (considering proxy voting procedures within the one-million-member Automobile Club of Southern California). See, e.g., White v. Davis, 30 Cal. 4th 528, 536-37 (2003) (deeming a taxpayer action to enjoin California controller's disbursement of funds without the enactment of an emergency appropriation bill an issue of "profound public significance"); Conservatorship of Wendland, 26 Cal. 4th 519, 524, fn. I (2001) (considering limitations on conservators' power to withhold life-sustaining treatment to a conscious conservatee); People v. Travis, 139 Cal. App; 4th 1271, 1279-80 (2006) (considering whether mandatory collection of DNA samples violates fourth amendment's prohibition against nonconsensual searches and seizures); Californians for Fair Representation - No on 77 v. Superior Court, 138 Cal. App. 4th 15,22 (2006) (finding that "[t]he purity of elections and the full disclosure of all contributions and expenditures are matters of public interest.").5

28A173023949.5

Notwithstanding Appellants' lofty rhetoric, the instant appeal simply does not rise to the level of "profound public significance" necessary to warrant consideration on its merits. Second, the issue is not likely to recur between the parties. Indeed, SAG's decades-old bylaw providing for majority written assent has neverbefore been challenged by members of its board. This appeal involves a specific "Written Assent" that took place on January 26, 2009 under very

specific factual circumstances that involved the negotiation of a new TV/Theatrical contract. Such fact-dependent questions are more properly decided on a case-by-case basis. See MHC Operating Ltd. P'ship v. City of San Jose, 106 Cal. App. 4th 204, 215 (2003); Giles, 100 Cal. App. 4th at 228 ("Because plaintiff s claim is a particularly factual determination that must be resolved on a case-by-case basis, dependent upon the specific facts of a given situation, it is not one on which we would exercise our discretion to address on the merits, despite the fact that it is moot.,,).6 In addition, Appellants erroneously contend, based on a misapplication of Civil Code section 2313, that the corporate acts taken by a majority of SAG's Board of Directors at the Febmary 8, 2009 Board meeting are "unenforceable." (RRJN, Ex. 3, pp. 086-87.) However,

6 Appellants are not without a remedy, should they continue to dispute SAG's longstanding majority written assent procedure. Pursuant to Article XVIII, Section 1 of SAG's Bylaws, Appellants may institute proceedings to amend the contested bylaw. (See AA, Vol. 1, Ex. 5, p. 00269.) 29A17302J949.5

Section 2313 of the Civil Code has no application here, for a whole host of reasons. That statute - which applies to the narrow situation in which aprincipal ratifies an unauthorized act by an agent - is irrelevant to this case,

which involves a corporate body's reaffinnance of its own prior act. 7 Moreover, Appellants' contention that they "would be prejudiced if the February 8 Motion was deemed to ratify the January 26 written assent" is unintelligible. (RRJN, Ex. 3, pp. 086-87.) Appellants - each of whom is a member of SAG's Board of Directors - are decidedly not third parties to the acts of SAG's Board. And, being on the losing side of a democratically-administered majority vote does not constitute the kind of "prejudice of third persons" contemplated in Section 2313. Even if Civil Code Section 2313 were somehow deemed to apply to this case, it would still be irrelevant here because Appellants effectively gave their "consent" to the February 8, 2009 board meeting's procedure and agenda. The agenda - which Appellant Rosenberg himself adopted - prominently featured the very action item that Appellants now purport to challenge-the "Adoption and Reaffinnation of Written Assent of January 26, 2009."(RRJN, Ex. 2, pp. 036-37 & 041, Bennett Decl., ~~ II, 13.)7

As such, the Archdale and Dominguez decisions cited by Appellants which considered the unrelated issue of whether a defendant, as a third party to the plaintiffs attorney-client relationship, would be prejudiced if the plaintiffs post-filing ratification of its complaint were to preclude the defendant from asserting a statute of limitations defense - are inapplicable. See Archdale v. Am. Int'! Specialty Lines Ins. Co., 154 Cal. App. 4th 449, 480 (2007); Dominguez v. Superior Court, 139 Cal. App. 3d 692,695 (1983). 30A173023949.5

SAG's Board has met and voted in favor of the acts previously passed by written assent. This Appeal is legally moot.

V.

CONCLUSIONThe relief requested by Appellants is not only unwaITanted, but this

Court is not capable of providing any effective relief, in light of SAG's Board's affinnance and readoption of the acts passed by the disputed Written Assent. The Court should not interject itself into this internal union matter, and, in any event, the trial court acted properly and within its discretion, and certainly did not "exceed the bounds of reason." SAG's enactment of bylaws that provide for a majority-vote written assent procedure is authorized by California law. Nor do such bylaws conflict with Section 7211(b) or any other provision oflaw. The appeal should be denied and the lower court's ruling affirnled. Alternatively, the Court should dismiss the appeal as moot.

DATED: July 1,2009

Bingham McCutchen LLP By:_

'--_~L-

Roland Tellis Attorneys for Respondent Screen Actors Guild

31A173023949.5

CERTIFICATE OF WORD COUNT

I certify that this Motion to Dismiss contains 7,509 words, as counted by the Microsoft Word 2003 software used to generate it.

DATED: July 1,2009

Bingham McCutchen LLP

L~/By:

. =) 2-

=------'----------Roland Tellis Attomeys for Respondent Screen Actors Guild

32AI7J023949.5

PROOF OF SERVICEI 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, North Tower, 1620 26th Street, Santa Monica, California 90404-4060. I am readily familiar with the practice of this office for collection and processing of con-espondence for mail/fax/hand delivery/next business day delivery, and they are deposited that same day in the ordinary course of business. On July 1,2009, I served the attached:

RESPONDENT'S BRIEF

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See Attached Service ListI declare under penalty ofpeljury under the laws of the State of California that the foregoing is true and con-ect and that this declaration was executed on July 1,2009, at Santa Monica, California.

N73080632.1/300981 0-0000337304

SERVICE LIST

Eric M. George Sonia Y. Lee BROWNE WOODS GEORGE LLP 2121 Avenue of the Stars, 24th Floor Los Angeles CA 90067 Tel: 310.274.7100 Fax: 310.275.5697 egeorge@bwgfirm.com slee@bwgfirm.com Vincent F. Pitta Barry N. Saltzman Pitta & Giblin LLP 120 Broadway New York NY 10271 Tel: 212.652.3890 Fax: 212.652.3891

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