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

Ai7JOJ612J. 7/300981 0-000033 7304

 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
D. SAG Holds a Special Meeting to Reaffirm the Acts
Passed by the January 26, 2009 Written Assent.. 6
E. Appellants Unsuccessfully Seek Expedited
"E xtraord'mary " W n't R '
eVlew . TI'
m llS C OUIi .•••...................... 8
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. The February 8, 2009 Board Meeting Was Duly
Noticed 12
B. Robeli's Rules Were Not Violated at the February 8,
2009 Board Meeting 14
C. Opponents of the Written Assent Had the Opportunity
To - And Did - Debate its Merits at the February 8,
2009 Board Meeting 17
V. CONCLUSION 18

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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) 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 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 passim

9 Witkin, Cal. Proc. 5th (2008) Appeal § 752 10

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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.

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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 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
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

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

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 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;

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 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 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-OOOOlJ 7304

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 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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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 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.

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;

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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, 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

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 Bingham McCutchen LLP

By,---:_ _ --r(~~Z-_
Roland Tellis
Attorneys for Respondent
Screen Actors Guild

A17J036123. 713009810-0000337304
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 Bingham McCutchen LLP

_-----?~-- l--
By:.....: __
Roland Tellis
Attorneys for Respondent
Screen Actors Guild

A1730J6123.713009810-000033 7304
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 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 Los Angeles Superior Court

Sonia Y. Lee Dept. 85 - Judge James C. Chalfant
BROWNE WOODS GEORGE LLP III North Hill Street
Los Angeles CA 90012
2121 Avenue of the Stars, 24th Floor
Los Angeles CA 90067 Los Angeles Superior Court
Tel: 310.274.7100 Dept. 19 - Judge Judith Chirlin
Fax: 310.275.5697 111 N. Hill Street
egeorge@bwgfim1.com Los Angeles CA 90012
slee@bwgfirm.com (courtesy copy)

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

N73042763.1/300981 0-000033 7304