Judd V Weinstein Cal Senate Amicus Brief

Case: 19-55499, 08/30/2019, ID: 11417022, DktEntry: 17, Page 1 of 26
No. 19-55499
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
ASHLEY JUDD, an individual
Plaintiff-Appellant,
v.
HARVEY WEINSTEIN, an individual
Defendant-Appellee.
On Appeal from the United States District Court

for the Central District of California
No. 2:18-cv-05724-PSG-FFM
Hon. Philip S. Gutierrez
BRIEF OF THE CALIFORNIA STATE SENATE AS AMICUS CURIAE IN

SUPPORT OF APPELLANT
Diane F. Boyer-Vine (SBN: 124182)

Legislative Counsel
Robert A. Pratt (SBN: 137704)
Principal Deputy Legislative Counsel
Brent W. Westcott (SBN: 294980)
Deputy Legislative Counsel
Office of Legislative Counsel
1315 10th Street, Room 3021
Sacramento, California 95814
(916) 341-8244
brent.westcott@lc.ca.gov
Counsel for Amicus Curiae

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................. iii
STATEMENT OF INTEREST ................................................................................ 1
SUMMARY OF ARGUMENT ............................................................................... 2

ARGUMENT ........................................................................................................... 4
I. THE LEGISLATIVE HISTORY SHOWS THAT SB 224

CLARIFIED SECTION 51.9 BY ADDING "DIRECTOR OR
PRODUCER" TO THE LIST OF EXAMPLE RELATIONSHIPS ... 5
A. A Statute That Merely Clarifies Existing Law Must Be

Applied To Conduct Occurring Before Its Enactment ............ 5
B. Courts Must Consider Evidence Of Legislative Intent When

Interpreting A Statute's Effect, Including Legislative
History ....................................................................................... 6
C. The District Court Failed To Properly Weigh The One Piece

Of Legislative History It Had Before It .................................... 7
D. Additional Pieces of Legislative History Show That SB 224

Clarified Section 51.9 By Adding "Director Or Producer" To
The List Of Example Relationships .......................................... 9
II. DISMISSAL OF PLAINTIFF'S SECTION 51.9 CLAIM WOULD

IGNORE SB 224's HISTORICAL CONTEXT AND FRUSTRATE
THE LEGISLATURE'S GOAL OF COMBINING SEXUAL
HARASSMENT ................................................................................ 13
A. The Circumstances Surrounding SB 224's Enactment Show

That The Legislature Clarified Section 51.9 By Adding New
Relationships To The List of Examples ................................. 13
i
B. The Legislature Enacted SB 224 To Ensure That Victims

Like Plaintiff Are Protected From Sexual Harassment ............. 16
CONCLUSION ......................................................................................................... 18
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ii
TABLE OF AUTHORITIES
Page(s)
Cases
ABKCO Music, Inc. v. LaVere,
217 F.3d 684 (9th Cir. 2000) ....................................................................5, 13
Aramark Facility Servs. v. Serv. Employees Int'l Union, Local 1877, AFL CIO,
530 F.3d 817 (9th Cir. 2008) ......................................................................... 10
Arce v. Douglas,
793 F.3d 968 (9th Cir. 2015) ....................................................................... 10
Carter v. Cal. Dept. of Veteran Affairs,
38 Cal. 4th 914 (2006) ................................................................................5, 6
DuBois v. Workers’ Comp. Appeals Bd.,
5 Cal. 4th 382 (1993) ......................................................................................7
Dyna-Med, Inc. v. Fair Emp’t & Hous. Comm’n.,
43 Cal. 3d 1379 (1987) .................................................................................16
Hassan v. Mercy Am. River Hospital,
31 Cal. 4th 709 (2003) ..............................................................................9, 12
Hughes v. Pair,
46 Cal. 4th 1035 (2009) ................................................................................15
Huson v. County of Ventura,
80 Cal. App. 4th 1131 (2000) ................................................................ 13, 16
Jevne v. Superior Court,
35 Cal. 4th 935 (2005) ..................................................................................12
Kern v. County of Imperial,
226 Cal. App. 3d 391 ............................................................................. 14, 16
S. Bay Creditors Trust v. Gen. Motors Acceptance Corp.,
69 Cal. App. 4th 1068 (1999) .......................................................................13
Scott v. City of San Diego,
38 Cal. App. 5th 228, 2019 WL 3491428 (Aug. 1, 2019)............................12
iii
Tyler v. State of California,

134 Cal. App. 3d 973 (1982) ..........................................................................6
W. Sec. Bank v. Superior Court,
15 Cal. 4th 232 (1997) ................................................................. 5, 6, 7, 8, 14
Statutes
Cal. Civ. Code § 51.9 (2000-18) ...............................................................................2
Cal. Civ. Code § 51.9.................................................................................................2
Rules
Fed. R. Evid. 201 .....................................................................................................10
Other Authorities
Cal. Assem. Comm. on Judiciary, Analysis of Sen. Bill No. 224
(June 29, 2018) .........................................................................................................11
Cal. Assem. Comm. on Rules, Floor Analysis of Sen. Bill No. 224
(Aug. 8, 2018) .......................................................................................................... 11
Cal. Assem. Comm. on Rules, Floor Analysis of Sen. Bill No. 224
(Aug. 23, 2018) ........................................................................................................ 11
Cal. Sen. Comm. on Judiciary, Analysis of Sen. Bill No. 224
(Jan. 8, 2018) ............................................................................................................10
Cal. Sen. Comm. on Rules, Floor Analysis of Sen. Bill No. 224
(Jan. 11, 2018) .......................................................................................................... 10
Senate Bill No. 224, 2018 Cal. Legis. Serv. Ch. 951 ................................................2
Senate Bill No. 820, 2018 Cal. Legis. Serv. Ch. 951 .............................................. 14
Senate Bill No. 1300, 2018 Cal. Legis. Serv. Ch. 955 ............................................ 14
Senate Bill No. 1343, 2018 Cal. Legis. Serv. Ch. 956 ............................................ 14
iv
STATEMENT OF INTEREST1
Amicus curiae, the California State Senate, is the upper house of the
California Legislature. California’s Constitution vests the Legislature with the
“legislative power” in California, including the power to pass laws protecting
victims of sexual harassment.
As the legislative body that originated Senate Bill No. 224, the Senate has a
strong interest in this case. SB 224 clarified that relationships between actors and
producers—like the one between the parties in this case—are and have always
been subject to section 51.9 of the California Civil Code, which prohibits sexual
harassment in “business, service, or professional” relationships. But in dismissing
Plaintiff’s claim the district court held that this clarification instead changed
section 51.9’s scope. The Legislature has an interest in ensuring that courts
interpret SB 224’s effect on section 51.9 in a manner that is consistent with the
Legislature’s intent and serves the bill’s purpose: protecting victims of sexual
harassment that occurs outside the workplace. It therefore submits this amicus brief
encouraging reversal of the district court’s order.
1
Pursuant to Federal Rule of Appellate Procedure 29, amicus certifies that all
parties have consented to the filing of this brief. Amicus further certifies that no
party’s counsel authored this brief in whole or in part; that no party or a party’s
counsel contributed money that was intended to fund preparing or submitting this
brief; and that no person other than amicus, its members, or its counsel
contributed money that was intended to fund preparing or submitting this brief.
1
SUMMARY OF ARGUMENT
In 2018, the Legislature passed a series of bills to combat sexual misconduct
in this state. The legislation was prompted by the global #MeToo movement and
reports of widespread sexual misconduct by powerful individuals—including
Harvey Weinstein, the defendant in this case.
Senate Bill No. 224, 2018 Cal. Legis. Serv. Ch. 951, was one of these bills.
SB 224 emphasized protections for victims of sexual harassment in certain
industries by amending section 51.9 of the California Civil Code. Originally
enacted in 1994, section 51.9 broadly prohibits sexual harassment in all “business,
service, or professional” relationships. Even before it was amended by SB 224,
section 51.9 contained a varied, nonexclusive list of example relationships covered
by the law—everything from relationships with physicians and attorneys to those
with collection services and building contractors. Cal. Civ. Code § 51.9(a)(1)(A)-
(E) (2000–18). It also covered all relationships “substantially similar” to those on
the list. Id. at subparagraph (F).
SB 224 added relationships with investors, elected officials, lobbyists and—
relevant here—directors and producers to section 51.9’s list of example
relationships. See § 51.9(a)(1)(B), (F)-(H). Although section 51.9 already covered
these relationships, SB 224 expressly referenced them to make it crystal clear they
2
were covered, and to reinforce section 51.9’s deterrent effect by giving individuals
in those industries explicit notice of potential liability.
While statutes generally do not operate retroactively unless the Legislature
clearly intended them to do so, a statute that merely clarifies existing law must be
applied to conduct occurring before its enactment. A clarifying statute does not
raise any retroactivity concerns because it simply states what the law already is. SB
224’s addition of “director or producer” to section 51.9 was this type of clarifying
amendment.
The district court, however, concluded that SB 224 changed, rather than
clarified, section 51.9, and thus held that the amended version did not apply in this
case. The district court then found that the relationship between the parties was not
covered by the pre-SB 224 version of section 51.9 and dismissed Plaintiff’s section
51.9 claim.
In reaching this conclusion the district court improperly disregarded ample
evidence of the Legislature’s intent in passing SB 224. It gave insufficient weight
to a Senate floor analysis—a valuable piece of legislative history—showing the
Legislature’s intent to clarify section 51.9 by adding “director or producer” to the
list of example relationships. This intent is made even clearer by a more thorough
review of the legislative history, specifically additional committee analyses, which
the district court did not address in its decision. The district court also failed to
3
consider SB 224’s historical context and the Legislature’s stated purpose of
fortifying existing protections for victims of sexual harassment.
It is clear under California law that legislative intent cannot be disregarded
in this fashion. Rather, California law requires courts to duly consider legislative
intent—including the Legislature’s views on the effect of its statutes on existing
law. And a statute’s legislative history is clear evidence of legislative intent. Courts
must also consider the wider historical context of a statute’s enactment and
interpret statutes in a way that serves the Legislature’s purpose.
A proper application of these principles leads to the conclusion that the
addition of “director or producer” merely clarified section 51.9, and that the
relationship between the parties in this case is one that has always been covered by
the statute. Accordingly, the district court’s order should be reversed.
ARGUMENT
The Senate submits this brief in support of Plaintiff’s appeal. The Senate
agrees that Plaintiff’s relationship with Defendant falls within section 51.9’s scope
when the terms “business, service, or professional relationship” are given their
plain meaning and, in the alternative, that the relationship is substantially similar to
the example relationships included in the statute before SB 224 added “director or
producer” to the list.
The Senate contends that the district court improperly disregarded the
4
Legislature’s intent to clarify section 51.9’s scope—as clearly expressed
throughout SB 224’s legislative history—and that an affirmation of the district
court’s order would undermine the Legislature’s efforts to combat sexual
harassment in California.
I. THE LEGISLATIVE HISTORY SHOWS THAT SB 224 CLARIFIED

SECTION 51.9 BY ADDING “DIRECTOR OR PRODUCER” TO THE
LIST OF EXAMPLE RELATIONSHIPS
A. A Statute That Merely Clarifies Existing Law Must Be Applied

To Conduct Occurring Before Its Enactment
The district court erred in concluding that the addition of “director or
producer” to section 51.9’s list of example relationships changed, rather than
clarified, existing law.
It is a general rule that “statutes do not operate retrospectively unless the
Legislature plainly intended them to do so.” W. Sec. Bank v. Superior Court, 15
Cal. 4th 232, 243 (1997). “A statute has retrospective effect when it substantially
changes the legal consequences of events.” Id.; see also Carter v. Cal. Dept. of
Veteran Affairs, 38 Cal.4th 914, 922 (2006). The Senate does not contend that the
Legislature intended SB 224’s amendments to section 51.9 to apply retroactively.
But “a statute that merely clarifies, rather than changes, existing law does
not operate retrospectively even if applied to transactions predating its enactment.”
W. Sec. Bank, 15 Cal. 4th at 243; see also ABKCO Music, Inc. v. LaVere, 217 F.3d
684, 689 (9th Cir. 2000) (“We have long recognized that clarifying legislation is
5
not subject to any presumption against retroactivity and is applied to all cases
pending as of the date of its enactment.”). This type of “legislative act has no
retrospective effect because the true meaning of the statute remains the same.” W.
Sec. Bank, 15 Cal. 4th at 243; see also Tyler v. State of California, 134 Cal. App.
3d 973, 976–77 (1982) (“The rationale of this exception is that in such an instance,
in essence, no retroactive effect is given to the statute because the true meaning of
the statute has always been the same.”).
Because relationships with “directors or producers” were already covered by
section 51.9, SB 224’s addition of these relationships merely clarified existing law.
As a result, the district court should have applied section 51.9—as amended by SB
224—to Plaintiff’s claims.
B. Courts Must Consider Evidence Of Legislative Intent When

Interpreting A Statute’s Effect, Including Legislative History
SB 224’s legislative history demonstrates the Legislature’s intent to clarify
section 51.9 by adding “director or producer” to the statute’s list of example
relationships.
Unless the California Supreme Court has “finally and definitively”
interpreted a statute, courts must consider “a declaration of a later Legislature as to
what an earlier Legislature intended.” Carter, 38 Cal. 4th at 922 (citation and
quotation marks omitted). Not only are “the Legislature’s expressed views on the
prior import of its statutes . . . entitled to due consideration,” but a court “cannot
6
disregard them.” W. Sec. Bank, 15 Cal. 4th at 244 (emphasis added). This
requirement is a logical extension of California statutory interpretation law, which
requires courts to “ascertain the intent of the Legislature so as to effectuate the
purpose of the law.” DuBois v. Workers' Comp. Appeals Bd., 5 Cal. 4th 382, 387
(1993).
In its order entering final judgment on Plaintiff’s section 51.9 claim, the
district court correctly noted that “there have been very few decisions from any
court addressing the types of relationships covered by § 51.9 and none that have
addressed whether sexual harassment committed by producers is covered under the
statute.” ER 12. Nor has the California Supreme Court rendered a “final and
definitive” interpretation of section 51.9’s scope. Thus, in interpreting the effect of
SB 224’s amendments on section 51.9, the district court was prohibited from
disregarding the Legislature’s views, and was instead required to give those views
due consideration.
C. The District Court Failed To Properly Weigh The One Piece Of

Legislative History It Had Before It
Before dismissing Plaintiff’s section 51.9 claim, the district court took
judicial notice of the final Senate floor analysis of SB 224. ER 19 n.3. This
analysis—spanning just seven pages—states that the addition of “director or
producer” to section 51.9’s list of example relationships “clarifies” or “is
declaratory of” existing law in three separate places. ER 47 (“Because the current
7
list of examples is not exclusive, this bill is declaratory of existing law.”), ER 50
(“[T]his bill’s explicit mention of [the new] relationships is almost certainly
declaratory of existing law.”), ER 52 (“All of the relationships implicated are
almost certainly covered under existing California law.”).
Yet the district court dismissed this valuable legislative history in
determining that the bill “expanded the reach of § 51.9 rather than merely
clarifying it.” ER 19. Instead, it concluded that “whatever value legislative history
documents might have in statutory interpretation when they are created by the
Legislature that enacted a statute, the views of the 2018 Legislature on the meaning
of a statute enacted in 1999 are surely entitled to even less weight.” Id.
This conclusion ignores California law. It is true that the California Supreme
Court has recognized some “incongruity in the notion that one Legislature may
speak authoritatively on the intent of an earlier Legislature’s enactment.” W. Sec.
Bank, 15 Cal. 4th at 244. But it still commands courts to give “due consideration”
to “the Legislature’s expressed views on the prior import of its statutes” and
forbids courts from disregarding those views. Id.
That due consideration was lacking here. Beyond summarily dismissing the
Senate floor analysis, the district court ignored SB 224’s legislative history. The
district court is correct that “[s]tatutory interpretation is the province of the
judiciary, not the legislature.” ER 19. But that does not grant it license to disregard
8
valuable evidence of the Legislature’s intent.
The district court made a similar error when it decided to “not rely” on the
Senate floor analysis “as evidence that the previous version of [section 51.9]
covered producers like [Defendant],” even if it found that SB 224 did not clarify
existing law. ER 20. The district found that the “authors of [SB 224’s] analysis had
every reason to portray the previous version of § 51.9 as already encompassing”
directors and producers and that “the 2018 Legislature . . . may have been engaged
in wishful thinking” by stating that SB 224 declared existing law. Id. This
conclusion runs contrary to California law—which directs courts to consider
evidence of the Legislature’s intent, including committee analysis, when
interpreting a statute. See Hassan v. Mercy Am. River Hospital, 31 Cal. 4th 709,
717 (2003). And, as explained below, the district court’s treatment of the Senate
floor analysis ignores the valuable role that committees play in California’s
legislative process. The district court should have accepted the Senate floor
analysis as clear evidence of the Legislature’s intent to clarify section 51.9’s scope,
not discarded it while questioning the motives of its authors.
D. Additional Pieces Of Legislative History Show That SB 224

Clarified Section 51.9 By Adding “Director Or Producer” To The
List Of Example Relationships
A more thorough review of SB 224’s legislative history provides even
stronger evidence that the Legislature clarified section 51.9 by adding “director or
9
producer” to the list of example relationships.
The amendments adding “director or producer” to section 51.9 first appeared
in the January 3, 2018 version of SB 224. The Senate Committee on the Judiciary
prepared the first analysis of this version of the bill. It wrote the following in the
description of SB 224 on the first page of the analysis:
“This bill adds investor, elected official, lobbyist, director, and

producer to the list of examples of relationships that are covered by
Civil Code Section 51.9’s imposition of civil liability for sexual
harassment in business, service, or professional contexts. Because the
current list of examples is not exclusive, this bill is declaratory of
existing law. Nonetheless, it serves to highlight that investors, elected
officials, lobbyists, directors, and producers can be subject to liability
if they engage in sexual harassment.”
Cal. Sen. Comm. on Judiciary, Analysis of Sen. Bill No. 224, as amended Jan. 3,
2018, 2017–18 Reg. Sess., at 1 (Jan. 8, 2018) (emphasis added).2 Nearly identical
language appeared in the initial Senate floor analysis of SB 224, which would have
been available to each Senator before the Senate voted on the bill. See Cal. Sen.
Comm. on Rules, Floor Analysis of Sen. Bill No. 224, as amended Jan. 3, 2018,
2017–18 Reg. Sess., at 1 (Jan. 11, 2018). SB 224 passed the Senate by a vote of
38-0.
2
Each committee analysis cited in this amicus brief is publically available on the
California Legislative Information website (available at
http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=20172018
0SB224). This court may take judicial notice of these state legislative materials
pursuant to Federal Rule of Evidence 201. See Aramark Facility Servs. v. Serv.
Employees Int'l Union, Local 1877, AFL CIO, 530 F.3d 817, 826 n.4 (9th Cir.
2008); Arce v. Douglas, 793 F.3d 968, 979 n.4 (9th Cir. 2015).
10
The Assembly Committee on the Judiciary prepared the next analysis of SB
224. On the issue of whether the addition of “director or producer” declared
existing law, it reached the same conclusion as the Senate:
“Because all of the professional and business relationships that this

bill proposes to add to Section 51.9—investor, elected official,
lobbyist, and director or producer—are arguably all “substantially
similar” to the relationships now listed in statute, they appear to
already be covered by existing law. Nevertheless, this bill helpfully
further clarifies that investors, lobbyists, elected officials, directors or
producers are, in fact, liable for any sexual harassment committed in
the context of their business, professional, or service relationships.”
Cal. Assem. Comm. on Judiciary, Analysis of Sen. Bill No. 224, as amended Jan.
3, 2018, 2017–18 Reg. Sess., at 4 (June 29, 2018) (emphasis added). As in the
Senate, similar language appeared in Assembly floor analyses before the Assembly
voted on the bill. See Cal. Assem. Comm. on Rules, Floor Analysis of Sen. Bill
No. 224, as amended July 5, 2018, 2017–18 Reg. Sess., at 3 (Aug. 8, 2018)
(statement of Senator Hannah-Beth Jackson); Cal. Assem. Comm. on Rules, Floor
Analysis of Sen. Bill No. 224, as amended Aug. 23, 2018, 2017–18 Reg. Sess., at 3
(Aug. 23, 2018) (same). The Assembly passed SB 224, with amendments not
relevant here, by a vote of 78-0.
SB 224 then returned to the Senate for a concurrence vote. Again, the floor
analysis available to every Senator stated that that the bill’s addition of “director or
producer” to section 51.9’s list of example relationships is “declaratory of existing
law.” ER 47. The Senate concurred in the Assembly amendments by a vote of 39-0
11
and SB 224 was signed into law. In sum, language indicating that SB 224’s
addition of “director or producer” declared existing law and merely clarified the
scope of section 51.9 appeared in every committee and floor analysis prepared by
both houses of the Legislature.
The value of a committee analysis cannot be overstated. Staffed by subject-
matter experts who often serve under multiple committee chairs over the course of
many years, the committees serve a key function in the legislative process.
Committee staff vet legislative proposals and work with authors, sponsors, and
stakeholders on bill language, prior to a committee holding public hearings. The
sum total of this work is captured in the committee’s analysis of a bill. The
analysis is available to each member of the committee before the committee votes
on the bill. The same is true of a bill’s floor analysis, a copy of which is available
to each Member before that house votes on the bill. A committee analysis is
therefore a key indicator of legislative intent. See Hassan, 31 Cal. 4th at 717
(relying on Assembly Judiciary Committee analysis); Jevne v. Superior Court, 35
Cal. 4th 935, 948 (2005) (relying on analyses prepared by the Assembly Judiciary
Committee and Senate Rules Committee).
Not surprisingly, courts in California routinely emphasize committee
analysis in deciding that amendments clarify existing law. See, e.g., Scott v. City of
San Diego, 38 Cal. App. 5th 228, 2019 WL 3491428, at *5-6 (Aug. 1, 2019)
12
(citing Senate Judiciary Committee analysis in support of holding that amendments
clarified existing law governing cost awards in FEHA cases); S. Bay Creditors
Trust v. Gen. Motors Acceptance Corp., 69 Cal. App. 4th 1068, 1079-80 (1999)
(relying on Senate and Assembly Judiciary Committee analyses in finding that
amendments clarified existing law relating to the California New Motor Vehicle
Board’s jurisdiction); Huson v. County of Ventura, 80 Cal. App. 4th 1131, 1136-37
(2000) (citing Senate Rules Committee analysis and Assembly Revenue and
Taxation Committee report in concluding that Legislature intended to clarify law
related to the inclusion of improvement bonds in property tax assessments); see
also ABKCO Music, 217 F.3d at 690-91 (relying on congressional materials in
holding that amendment to Copyright Act of 1909 clarified existing law).
Likewise, SB 224’s legislative history should be relied on here to conclude that the
addition of “director or producer” clarified section 51.9.
II. DISMISSAL OF PLAINTIFF’S SECTION 51.9 CLAIM WOULD

IGNORE SB 224’S HISTORICAL CONTEXT AND FRUSTRATE
THE LEGISLATURE’S GOAL OF COMBATING SEXUAL
HARASSMENT
A. The Circumstances Surrounding SB 224’s Enactment Show That

The Legislature Clarified Section 51.9 By Adding New
Relationships To The List Of Examples
SB 224’s historical context—in the midst of the global #MeToo movement
and widespread reports of sexual misconduct in California—provides more support
for the conclusion that the bill clarified section 51.9’s scope.
13
The “surrounding circumstances” of a legislative act “can indicate that the
Legislature made material changes in statutory language in an effort to only clarify
a statute’s true meaning.” W. Sec. Bank, 15 Cal. 4th at 243; see also Kern v.
County of Imperial, 226 Cal. App. 3d 391, 400 (“The legislative history of a statute
and the wider historical circumstances of its enactment are legitimate and valuable
aids in divining statutory purpose.”) (emphasis added).
In 2018, the Legislature engaged in a wide-ranging effort to combat sexual
harassment in California. Spurred on by the global #MeToo movement and reports
of sexual harassment in California and the State Capitol community, the
Legislature passed a package of bills to protect victims of sexual harassment and
hold wrongdoers accountable. See, e.g., Senate Bill No. 820, 2018 Cal. Legis.
Serv. Ch. 951 (prohibiting settlement agreements that preclude the disclosure of
factual information in sexual assault, sexual harassment, and sex discrimination
actions); Senate Bill No. 1300, 2018 Cal. Legis. Serv. Ch. 955 (prohibiting
employers from requiring employees to sign a release of claims, or a
nondisparagement or nondisclosure agreement, as a condition of receiving a raise
or bonus or continuing employment); Senate Bill No. 1343, 2018 Cal. Legis. Serv.
Ch. 956 (expanding required sexual harassment training for California businesses).
Taken together this legislation was an unprecedented attempt to address sexual
misconduct in this state.
14
SB 224 was a key piece of this effort. Introduced in response to reports of
sexual harassment in the financial services, entertainment, government, and public
policy industries, the bill sought to underscore and clarify protections for victims
of sexual harassment occurring outside a formal workplace. See ER 50-52
(highlighting reports of sexual misconduct in these industries).
Even before SB 224, section 51.9 applied broadly to all “business, service,
or professional” relationships outside the employment context. See Hughes v. Pair,
46 Cal. 4th 1035, 1048 (2009) (noting that section 51.9 “covers a wide variety of
business relationships outside the workplace”). The statute contained a wide-
ranging, nonexclusive list of example relationships covering everything from
relationships with physicians and attorneys to those with collection services and
building contractors, as well as any relationship “substantially similar” to those on
the list. § 51.9(a)(1)(A)-(B), (F) (2000–18).
The Legislature recognized that the relationships added to the list by SB 224
were already covered by section 51.9. But given reports of rampant sexual
misconduct in the industries targeted by SB 224, the Legislature wanted to make it
as clear as possible that the new relationships were covered. See ER 52-53
(“[R]eferencing [the new relationships] explicitly in the statute may serve as a
greater deterrent by highlighting the fact that the behavior is unlawful and giving
potential harassers additional notice of the liability they could face . . . .”).
15
Thus, the “surrounding circumstances” of SB 224’s passage are additional
evidence that the Legislature clarified section 51.9’s scope by adding “director or
producer” to the list of covered relationships. See Huson, 80 Cal. App. 4th at 1137
(noting that a clarifying bill was enacted “following inconsistent property
assessment practices in Orange County.”).
B. The Legislature Enacted SB 224 To Ensure That Victims Like

Plaintiff Are Protected From Sexual Harassment
Affirming the district court’s order dismissing Plaintiff’s section 51.9 claim
would subvert the goal of SB 224: strengthening protections for victims of sexual
harassment occurring outside the workplace.
The “first task in construing a statute is to ascertain the intent of the
Legislature so as to effectuate the purpose of the law.” Dyna-Med, Inc. v. Fair
Emp’t & Hous. Comm’n., 43 Cal. 3d 1379, 1386 (1987) (emphasis added); see also
Kern, 226 Cal. App. 3d at 400 (same).
As detailed above, the Legislature passed SB 224 in response to reports of
sexual misconduct in key industries, including the entertainment industry. See ER
50-52 (citing reports of sexual harassment in the venture capital, entertainment,
and government industries). Indeed, the Senate floor analysis cites to reports of
sexual misconduct by Defendant, noting that “producers wield enormous power
over what films, shows, and plays see the light of day” and that “[t]ogether with
directors, they also exert tremendous influence over who gets to be a part of the
16
production.” Id. at 50. The Legislature wanted to protect victims like Plaintiff and
to strengthen section 51.9’s deterrent effect when it enacted SB 224. See ER 52-53.
Affirming the district court’s order would have the opposite effect: it would deny
Plaintiff the protections that California has afforded victims of sexual harassment
for decades—protections that SB 224 merely clarified.
Moreover, a decision affirming the district could be read as an indication
that none of the new relationships added by SB 224 were previously covered by
section 51.9. This would undoubtedly prevent victims from the other industries
targeted by SB 224 from coming forward with meritorious claims. Indeed, the
district court recognized this danger in deciding to enter final judgment on
Plaintiff’s section 51.9 claim. See ER 12 (“[T]he Court’s decision that the 2019
amendment cannot be applied retroactively has implications for other individuals
like Plaintiff who allege that they have discovered only recently that” they were
harmed “because of sexual harassment.”).
Finally, affirming the district court’s order could also cause the Legislature
to avoid adding new example relationships in the future even if problems of sexual
harassment arise in those industries. When it passed SB 224 the Legislature
recognized that creating “[a]n extensive list of examples could eventually lead a
court interpreting [section 51.9] to conclude erroneously that by spelling out such a
long list of examples, the Legislature had some intent to exclude relationships by
17
omission.” ER 53. To avoid this result, a “middle path” was chosen and SB 224
added “a few examples of relationships that have recently proven especially
problematic” without adding “each and every relationship that [section 51.9]
nonetheless covers.” Id.
Just as the Legislature anticipated, the district court erroneously concluded
that “the fact that the Legislature found it necessary to amend the statute to
explicitly include producers and others is evidence that it may have had some
doubts as to whether these relationships were covered by existing law.” ER 20.
This logic improperly ties the Legislature’s hands. Future Legislatures may wish to
further clarify section 51.9’s scope by adding new relationships. But if the district
court’s order is affirmed, the Legislature may hesitate to add those new
relationships. This would only leave courts and potential victims to guess whether
those relationships are protected. This result can’t be squared with section 51.9’s
purpose.
CONCLUSION
The judgment of the district court should be reversed.
18
Date: August 30, 2019 Respectfully submitted,
/s/ Brent W. Westcott
Diane F. Boyer-Vine
Robert A. Pratt
Brent W. Westcott
Counsel for Amicus Curiae
19
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 29(a)(4)(G), Fed. R. App. P. 32(a)(7)(C), and
Ninth Circuit Rule 32-1, I certify that this brief complies with the type-volume
limitation because this brief contains 4,235 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
Pursuant to Fed. R. App. P. 32(a)(5) and (6), I certify that this brief complies
with the typeface and type style requirements because this brief has been prepared
in a proportionately spaced typeface using Microsoft Word 2010 in Times New
Roman 14-point font.
Date: August 30, 2019 /s/ Brent W. Westcott

Brent W. Westcott
CERTIFICATE OF SERVICE
I hereby certify that on August 30, 2019, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Date: August 30, 2019 /s/ Brent W. Westcott

Brent W. Westcott

Judd V Weinstein Cal Senate Amicus Brief

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Judd V Weinstein Cal Senate Amicus Brief

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Case: 19-55499, 08/30/2019, ID: 11417022, DktEntry: 17, Page 1 of 26

IN THE UNITED STATES COURT OF APPEALS

ASHLEY JUDD, an individual

HARVEY WEINSTEIN, an individual

On Appeal from the United States District Court

BRIEF OF THE CALIFORNIA STATE SENATE AS AMICUS CURIAE IN

Diane F. Boyer-Vine (SBN: 124182)

Counsel for Amicus Curiae

TABLE OF AUTHORITIES .................................................................................. iii

STATEMENT OF INTEREST ................................................................................ 1

SUMMARY OF ARGUMENT ............................................................................... 2

I. THE LEGISLATIVE HISTORY SHOWS THAT SB 224

A. A Statute That Merely Clarifies Existing Law Must Be

B. Courts Must Consider Evidence Of Legislative Intent When

C. The District Court Failed To Properly Weigh The One Piece

D. Additional Pieces of Legislative History Show That SB 224

II. DISMISSAL OF PLAINTIFF'S SECTION 51.9 CLAIM WOULD

A. The Circumstances Surrounding SB 224's Enactment Show

B. The Legislature Enacted SB 224 To Ensure That Victims

Tyler v. State of California,

California Legislature. California’s Constitution vests the Legislature with the

“legislative power” in California, including the power to pass laws protecting

victims of sexual harassment.

harassment in “business, service, or professional” relationships. But in dismissing

encouraging reversal of the district court’s order.

In 2018, the Legislature passed a series of bills to combat sexual misconduct

reports of widespread sexual misconduct by powerful individuals—including

Harvey Weinstein, the defendant in this case.

SB 224 emphasized protections for victims of sexual harassment in certain

industries by amending section 51.9 of the California Civil Code. Originally

service, or professional” relationships. Even before it was amended by SB 224,

section 51.9 contained a varied, nonexclusive list of example relationships covered

by the law—everything from relationships with physicians and attorneys to those

(E) (2000–18). It also covered all relationships “substantially similar” to those on

the list. Id. at subparagraph (F).

SB 224 added relationships with investors, elected officials, lobbyists and—

relevant here—directors and producers to section 51.9’s list of example

relationships. See § 51.9(a)(1)(B), (F)-(H). Although section 51.9 already covered

in those industries explicit notice of potential liability.

While statutes generally do not operate retroactively unless the Legislature

In reaching this conclusion the district court improperly disregarded ample

evidence of the Legislature’s intent in passing SB 224. It gave insufficient weight

to a Senate floor analysis—a valuable piece of legislative history—showing the

Legislature’s intent to clarify section 51.9 by adding “director or producer” to the

review of the legislative history, specifically additional committee analyses, which

consider SB 224’s historical context and the Legislature’s stated purpose of

fortifying existing protections for victims of sexual harassment.

It is clear under California law that legislative intent cannot be disregarded

intent—including the Legislature’s views on the effect of its statutes on existing

interpret statutes in a way that serves the Legislature’s purpose.

A proper application of these principles leads to the conclusion that the

the statute. Accordingly, the district court’s order should be reversed.

producer” to the list.

Legislature’s intent to clarify section 51.9’s scope—as clearly expressed

throughout SB 224’s legislative history—and that an affirmation of the district

court’s order would undermine the Legislature’s efforts to combat sexual

I. THE LEGISLATIVE HISTORY SHOWS THAT SB 224 CLARIFIED

A. A Statute That Merely Clarifies Existing Law Must Be Applied

The district court erred in concluding that the addition of “director or

producer” to section 51.9’s list of example relationships changed, rather than

clarified, existing law.

It is a general rule that “statutes do not operate retrospectively unless the

Legislature plainly intended them to do so.” W. Sec. Bank v. Superior Court, 15