Sag - Motion To Dismiss Appeal As Moot

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 County Honorable Judge James C. Chalfant Los Angeles Superior Court Case No. BC406900

RESPONDENT SCREEN ACTORS GUILD'S MOTION TO DISMISS APPEAL AS MOOT

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 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

Bingham McCutchen LLP By:

'----------------Roland Tellis Attorneys for Respondent Screen Actors Guild

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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 SAG from Acting Pursuant to the Written Assent...

4

SAG Holds a Special Meeting to Reaffirm the Acts Passed by the January 26, 2009 Written Assent..

6

Appellants Unsuccessfully Seek Expedited "E xtraord'mary " W n't R ' . TI' eVlew m llS C OUIi

8

D. E.

.•••......................

III.

THE APPEAL IS MOOT AND SHOULD BE DISMISSED

8

IV.

SAG'S FEBRUARY 8, 2009 BOARD MEETING CURED ANY ALLEGED DEFECT IN THE JANUARY 26, 2009 WRITTEN ASSENT

11

A. B. C.

V.

The February 8, 2009 Board Meeting Was Duly Noticed

12

Robeli's Rules Were Not Violated at the February 8, 2009 Board Meeting

14

Opponents of the Written Assent Had the Opportunity To - And Did - Debate its Merits at the February 8, 2009 Board Meeting

17

CONCLUSION

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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 Orchard Co., 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) Af73036123.713009810-0000337304

2

II

TABLE OF AUTHORlTIES Page MHC Operating Limited Partnership v. City of San Jose, 106 Cal. App. 4th 204 (2003) Norco Delivery Serv.. Inc. v. Owens-Corning Fiberglas, 64 Cal. App. 4th 955 (1998) Robertson v. Hartman, 6 Cal. 2d 408 (1936)

8,9

2

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 Angeles 163 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 9 Witkin, Cal. Proc. 5th (2008) Appeal § 752

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III

passim 10

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.

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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 of Michelle 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 such additional evidence "shows that events occurring after judgment and notice of appeal have rendered the appeal moot." Long v. Hultberg, 27 Cal. App. 3d 606, 608 (1972); see also Norco Delivery Serv., Inc. v. Owens-Commg Fiberglas, 64 Cal. App. 4th 955, 961, fn. 3 (1998) ("rule 41 [the predecessor to rule 8.54] expressly provides for the submiSSIOn of evidence via affidavits to support any motion filed on appeal"). A!73036123.713009810-0000337304

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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 Chief Negotiator 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

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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 AnneMarie Johnson, 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. (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 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 2

Violation of California Business & Professional Code § 17200. (AA, Vol.

2

Appellants recently dismissed the individual board members.

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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;

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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 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 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 dulynoticed meeting. (See Bennett Decl., ~~ 10-12.) Each and every member of the Board was represented. (Id. at ~ 12.) Appellant Rosenberg presided

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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.)

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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

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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.

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9 Witkin, Cal. Proc. 5th (2008) Appeal, § 752, p. 8 I 8.

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. of Public 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

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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 ANY ALLEGED DEFECT IN THE JANUARY 26, 2009 WRITTEN ASSENT 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.

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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;

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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 '

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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, 2009 Board 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

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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

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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.

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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

Bingham McCutchen LLP By,---:_ _

--r(~~Z-_

Roland Tellis Attorneys for Respondent Screen Actors Guild

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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

Bingham McCutchen LLP

_-----?~-- l-__

By:.....:

Roland Tellis Attorneys for Respondent Screen Actors Guild

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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 APPEAL AS MOOT ~

(BY MAIL) by causing a true and correct copy of the above to be placed in the United States Mail at Santa Monica, California in sealed envelope(s) with postage prepaid, addressed as set forth below. I am readily familiar with this law firm's' practice for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence is deposited with the United States Postal Service the same day it is left for collection and processing in the ordinary course 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 0-000033 7304

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 [email protected] [email protected] Vincent F. Pitta Barry N. Saltzman Pitta & Giblin LLP 499 Park Avenue New York NY 10022

N73042763.1/300981 0-000033 7304

Los Angeles Superior Court Dept. 85 - Judge James C. Chalfant III North Hill Street Los Angeles CA 90012 Los Angeles Superior Court Dept. 19 - Judge Judith Chirlin 111 N. Hill Street Los Angeles CA 90012 (courtesy copy)