Case No.

18-55569

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Rick Siegel
Plaintiff/Appellant

vs.

Julie Su, in her official capacity

As California State Labor Commissioner

Appeal for United States District Court, Southern District of California

District Court CV
The Honorable Christina A. Snyder, Judge, Presiding

APPELLANT’S OPENING BRIEF

RICK SIEGEL, pro per

22647 Ventura Boulevard, Ste 151
Woodland Hills CA 91364
323.864.7474
 TABLE OF CONTENTS

I. INTRODUCTION Pg. 1

II. STATEMENT OF JURISDICTION Pg. 2

III. STATEMENT OF ISSUES PRESENTED FOR REVIEW Pg. 3

IV. PERTINENT LEGAL PROVISIONS Pg. 3

V. STATEMENT OF THE CASE Pg. 4

VI. STANDARD OF REVIEW Pg. 6

VII. SUMMARY OF ARGUMENT Pg. 7

VIII. ARGUMENT Pg. 10

A. As The TAA Has No Penalty Provision, The Appellee

Has No Authority To Mete Out Penalties Pg. 14

B. The Order Wrongly Found The TAA Reserves

Procurement For Licensees Pg. 23

C. Appellee’s Arguments Rely On Three Assumptions That

Contradict Every Principle of Statutory Construction Pg. 31

D. Appellee Disingenuously Argues Buchwald Is Good

Law But The Precedents Buchwald Cited For Its
Authority Are Non-Applicable Pg. 32

E. The Order Wrongly Did Not Determine This Action

Satisfies An Exception To The Issue And Claim
Preclusion Rules Pg. 34

IX. CONCLUSION Pg. 35

ii
FEDERAL CASES

BMW of America v. Gore, 517 U.S. 559 (1995) Pg. 20

Berger v. City of Seattle, 569 F.3d 1029 (2009) Pg. 7

Bernhardt v. County of Los Angeles, 279 F.3d 862 (2002) Pg. 7

Desertrain v. City of Los Angeles, 754 F 3d 1147 (9th Circuit, 2014) Pg. 12

FCC v. Fox Television Stations, Inc., 132 S. Ct. (2012) Pg. 29

Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (1997) Pg. 6

Grayned v. City of Rockford 408 U.S. 104 (1972) Pg. 10

Gregg v. Hawaii Dept. of Pub Safety, 870 F.3d 883 (2017) Pg. 8

Lambert v. California 355 U.S. 225 (1957) Pg. 20

Lanzetta v. New Jersey, 306 U.S. 451 (1939) Pg. 12

LSO, Ltd v. Stroh, 205 F.3d 1146 (2000) Pg. 6

Marbury v. Madison, 1 Cranch 137, 163, 2L.Ed. 60 (1803) Pg. 7

Pike v. Bruce Church Inc, 397 U.S. 137, 142 (1970) Pg. 12-13

Sam Francis Foundation v. Christies, 784 F.3d 1320 (2015) Pg. 12-13

Starr v. Baca, 652 F.3d 1202 (2011) Pg. 6

U.S. v. Evans, 333 U.S. 483, 495 (1948) Pg. 14

U.S. v. Redwood City, 640 F.2d 963 (1981) Pg. 6

U.S. v. Sahhar, 45 F.3d 1026, 1028 (1995) Pg. 7

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CALIFORNIA STATE CASES

Agricultural Lab. Relations Bd. v. Superior Court, 16 Cal.3d 392 (1976) Pg. 20

Albaugh v. Moss Constr. Co., 125 Cal. App. 2d 126 (1945) Pg. 15

Buchwald v. Superior Court, 254 Cal. App. 2d 347 (1967) Pg. 14-15, 18, 33

Dyna-Med. v. Fair Emp. & Housing Comm., 43 Cal. 3d 1385 (1987) Pg. 19-20

Grubb & Ellis Co. v. Bello, 19 Cal.App. 4th 231 (1993) Pg. 23

Loving & Evans v. Blick, 33 Cal. 2d 603 (1949) Pg. 15, 19, 32, 33, 34

Marathon v. Blasi, 42 Cal. 4th 974 (2008) Pg. 14, 17 -18, 33

Morris v. Williams, 67 Cal 2d 733 (1967) Pg. 19-20

Severance v. Knight-Counihan Co., 29 Cal.2d 561 (1947) Pg. 15-16, 19, 22, 32, 33, 34

R.M. Sherman Co. v. W.R. Thomason, Inc., 191 Cal. App. 3d 559 (1987) Pg. 16, 23

Smith v. Bach, 183 Cal. 259 (1920) Pg. 15-16, 19, 22 32, 33, 34

Styers v. Ryan, 811 F.3d 292 Pg. 17, 19-20

Styne v. Stevens, 26 Cal. 4th 42 (2001) Pg. 17-18, 30, 32

Wachs v. Curry, 13 Cal. App. 4th 616 (1993) Pg. 11, 13

Waisbren v. Peppercorn Prods., Cal App.4th 246, 261 (1995) Pg. 18

Wolff v. Fox, 68 Cal. App. 3d 280 (1977) Pg. 18, 22

Wood v. Krepps, 168 Cal. 382 (1914 Pg. 15, 19, 22, 32, 33, 34

NEW JERSEY STATE CASES

New Jersey v. Fair Lawn Service Center, 20 NJ 468 (NJ 1956) Pg. 9

iv
FEDERAL STATUTES

28 U.S.C. 1291 Pg. 2

28 U.S.C. §1331 Pg. 2
28 U.S.C. §2201 Pg. 2
28 U.S.C. §2202 Pg. 2

Fed.R.App.P. 4(a)(1) Pg. 2

Restatement (Second) of Judgments § 26(1)(d) Pg. 34

STATE STATUTES

CA Civil Code
§ 1598 Pg. 21-22
§ 3530 Pg. 23

CA Labor Code
§ 1700 et al Pg. 1, 3, 15, 16
§ 1700.4 (a) Pg. 1, 3, 4, 13, 23-28, 30-34, 36
§ 1700.5 Pg. 1, 3, 4, 36

CA Business & Professions Code (BPC)

§ 2903 Pg. 26
§ 5051 Pg. 26
§ 5615 Pg. 26
§ 7026.1 (a) (1-2.6) Pg. 24
§ 7026.3 – 7026.12 Pg. 24
§ 7027 Pg. 24
§ 7027.1 Pg. 24
§ 7027.2 Pg. 24
§ 7028.1 – 7028.2(h) Pg. 25
§ 7316 Pg. 25
§ 7317 Pg. 25
§ 7802.1 Pg. 26
§ 7803 Pg. 26
§ 10136 Pg. 17
§ 10139 Pg. 17

TALENT AGENCIES ACT CASES

Breuer v. Top Draw Ent, TAC 18-95 Pg. 13

Solis v. Blancarte, TAC-27089 (2013) Pg. 12

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LAW REVIEW ARTICLES/BOOKS

Talent Agents, Personal Managers, And Their Conflict In The New

Hollywood, David Zelinski, So. CA. L. Rev., Vol 76 (2002-3) Pg. 1

Due Process Limitations on Occupational Licensing, Virginia Law Review Pg. 8

Canons of Construction, from “The Interpretation of Legal Texts,

Justice Antonin Scalia and Bryan A. Garner Pg. 27 -32

Preclusion as to Issues of Law: The Legal System’s Interest,

Geoffrey C. Hazard Jr., Yale Law Faculty Scholarship Series
Pepperdine Law Review Pg. 34

STATE REPORTS

Report of the CA Entertainment Commission, Pg. 25 Pg. 11

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 I. INTRODUCTION

The Talent Agencies Act (“Act,” “TAA”) defines the occupation of ‘talent

agent’ by the activities they engage in: “a person or corporation who engages in the

occupation of procuring, offering, promising, or attempting to procure employment

or engagements for an artist or artists…[and] may, in addition counsel or direct the

development of their professional careers.” CA. Lab. Code § 1700.4(a)

Per CA. Labor Code § 1700.5: “No person shall engage in or carry on the

occupation of a talent agency without first procuring a license therefor from the

Labor Commissioner.”

The TAA has no written statute that reserves any activity for licensees or a

codified penalty provision giving notice of consequences should a non-licensee

engage in any specific activity.

With no further statutory explanation, the Labor Commissioner interprets,

and courts have accepted Appellee’s interpretation, that CA. Lab. Code § 1700.4 (a)

prohibits those without a talent agency license from procuring employment for

artists but does not reserve either counseling or directing to licensees.

The issue to be decided here is whether the District Court’s acceptance of

this interpretation was correct, or as Appellant contends, the prohibition and penalty

provisions been wrongfully created and unconstitutionally disgorged more than a

quarter-billion dollars of earned and deserved compensation from personal

managers, producers, attorneys, publicists and others who represent artists.

Appellant asks this Court to examine the facts and rule appropriately.

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 II. STATEMENT OF JURISDICTION

The District Court had jurisdiction of this action under to 28 U.S.C. 1331, 28 U.S.C.

§§2201 and 2202 and 42 U.S.C. 1983. This Court has jurisdiction under 28 U.S.C. 1291.

The District Court Motion For Reconsideration Denied (Excerpt of Record (“ER”), Vol. 4,

p. 322) entered April 25, 2018, is the final, appealable order in that action.

Plaintiff filed a Notice of Appeal on April 27, 2018 (ER, Vol. IV, p. 326). As such,

this appeal is timely pursuant to Fed.R.App.P. 4(a)(1) of the Federal Rules of Appellate

Procedure.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

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 III. STATEMENT OF ISSUES PRESENTED FOR REVIEW

The District Court’s dismissal of this matter with prejudice, granting

Appellee’s Motion For Judgment on the Pleading, left the following issues

Appellant now asks the Court to review:

1) Does the TAA have a provision that with clarity gives notice that only those

with the requisite license can procure employment for an artist, but anyone can

direct and counsel artists, and if not, is it on its face unconstitutional?

2) As the TAA has no penalty provision, does Appellee have any authority to

affect the contract of anyone found to have procured employment for an artist

without a license, and if not, is the Act, as applied by Appellee, unconstitutional?

3) Does the Act, as applied by Appellee, violate the Dormant Commerce

Clause of the U.S. Constitution?

4) If the Court finds the TAA to be unconstitutional, meaning the 2008

determination on these same issues left an unfair, inequitable implementation of the

statutory scheme, does the exception to the Issue and Claim Preclusion Rules apply?

IV. PERTINENT LEGAL PROVISION

The Complaint refers to the Talent Agencies Act, CA Labor Code § 1700, et

seq. in toto; and in particular, § 1700.4. (a). Does the statute, a list of the three

defining activities of a talent agent, with no verbiage reserving any activity for

licensees, clearly give notice that non-licensees cannot procure employment for

artists, but they can counsel and direct artists?

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 V. STATEMENT OF THE CASE

Appellant Rick Siegel is a personal manager. Over the years, he has worked

to develop the careers of, among others, Ellen DeGeneres, Seth Rogen, Craig

Ferguson, Leah Remini, and Nia Vardalos. He also has served multiple times as an

expert witness, sometimes representing personal managers and other times the artist,

testifying on the application and interpretation of the Talent Agencies Act and the

standards and practices of talent representation and post-termination compensation.

A personal manager is the CEO of an artist’s business. The artist is both the

chairman of the board and the product; sort of like being Lee Iacocca and the

Chrysler; Steve Jobs and the iPhone. Talent agents serve as the vice president of

sales; the publicist is the VP of public relations; the transactional attorney is the VP

of business affairs; and the business manager is the VP of finance. The agent,

publicist, attorney and business manager all report to the personal manager.

The TAA is a regulatory business licensing scheme. There is no rational way

for a personal manager to properly do the job outlined above without being involved

in the revenue creation process, but as written, the TAA puts no limitations on any

effort to create revenue by those working in the artist’s interest.

Appellant filed a Complaint in CA. Superior Court on July 24, 2017 asking

for declarative relief from the enforcement of the CA Labor Code §§ 1700.4(a) and

1700.5 of Appellee Julie Su, acting in her official capacity as the State Labor

Commissioner, forwarding facial and ‘as applied’ constitutional challenges.

4
 The CA Legislature empowered the Labor Commissioner to enforce and

administrate the Talent Agencies Act. Though the Act was created to bar employers

from also serving as employment counselors, Appellee has repeatedly ignored

problems related to those issues. See Plaintiff Motion Of Summary Judgment, Pgs.

2-4; Excerpt of Record (“ER”) Vol. 2, Pgs. 107-109. Instead Appellee has focused

on enforcing instances of alleged procurement by unlicensed talent representatives.

Appellees filed a request to have the case moved to Federal Court before the

Honorable Judge Christina A. Snyder, who in 2008 presided over a suit Appellant

initiated against Gov. Brown and Appellee for similar constitutional claims.

On November 30, 2017, Appellee filed a Motion for Judgment on the

Pleadings (ER Vol. 1, Pg 18). Appellant opposed the motion in a brief submitted to

the Court on December 29, 2018. ER Vol. 2, Pg. 139.

On December 4, 2017, Appellant filed a Motion for Summary Judgment (ER

Vol. 2, Pg. 99), a motion Appellant Opposed in a brief submitted to the Court on

January 19, 2018. ER Vol. 3, Pg. 175.

Appellee’s Reply Brief in support of her motion was submitted on January

26, 2018 (ER Vol. 3, Pg. 200); and Appellant’s Reply Brief in support of his motion

was submitted on January 29, 2018. ER Vol. 3 Pg. 225.

The hearing on both motions, preceded by a tentative order distributed to the

parties, (ER Vol. 2, Pg. 246) was heard on February 12, 2018. During the hearing

the Bench withdrew the Tentative. On March 16, 2018, the Court distributed the

Order (Vol 4, Pg. 275) that granted Appellee’s Motion for Judgment on the

5
Pleadings and denied Appellant’s Summary Judgment Motion. Appellant’s

complaint was dismissed with prejudice.

Appellant filed a Motion for Reconsideration on March 27, 2018 (Vol 4, Pg.

287) and the Opposition to that Motion was filed by Appellee on April 9, 2018. ER

Vol. 4, Pg. 307. Appellant’s Reply brief was submitted on April 16, 2018 (ER Vol.

4, Pg. 316) and the Court distributed Civil Minutes denying the Motion on April 25,

2018. ER Vol. 4, Pg. 322. Appellant filed his Notice of Appeal to the Ninth Circuit

of Appeals on April 27, 2018. ER Vol. 4, Pg. 326.

VI. STANDARD OF REVIEW

As “a Rule 12(c) motion is functionally identical to a Rule 12(b)(6) motion,

the same standard of review applies to motions brought under either rule.” Gregg v.

Hawaii Dept. of Pub Safety, 870 F.3d 883, 887 (2017).

This Court reviews de novo a District Court’s dismissal of a complaint for

failure to state a claim under FRCP Rule 12(b)(6). Starr v. Baca, 652 F.3d 1202,

1205 (2011) Rule 12(b)(6) motions are viewed with disfavor and rarely granted.

Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (1997). It is only under

extraordinary circumstances that dismissal is proper. United States v. Redwood

City, 640 F.2d 963, 966 (1981). When considering such motions, the court must

accept as true all factual allegations in the complaint as well as all reasonable

inferences that may be drawn from such allegations. LSO, Ltd. v. Stroh, 205 F.3d

1146, 1150 (2000).

6
 Facial and applied constitutionality is a question of law this Court reviews de

novo. Bernhardt v. County of Los Angeles, 279 F.3d 862, 867 (2002). The district

court’s rulings are questions of law reviewed de novo, United States v. Sahhar, 56

F.3d 1026, 1028 (1995). The same standard applies to any mixed questions of law

and fact underlying these judgments, Berger v. City of Seattle, 569 F.3d 1029, 1035

(2009).

VII. SUMMARY OF ARGUMENT

“The very essence of civil liberty certainly consists in the right of every

individual to claim the protections of the laws, whenever he receives an injury."

Marbury v. Madison, 1 Cranch 137, 163, 2L.Ed. 60 (1803).

During the February 12, 2018 oral argument, Judge Christina A. Snyder told

Appellant he was making, “a case that the law is incorrect. But you’re in the wrong

forum. You belong before the state legislature if you want them to rewrite the law.”

Pg. 10, lns. 6-9; ER Vol. 4, Pg. 266, lns. 6-9. 1

But the Talent Agencies Act, as written, is not the issue. Instead the problem

is how Appellee enforces non-existent statutory provisions never codified and

courts that have followed Appellee’s incorrect interpretation.

1
The Court’s comment that Appellant should be petitioning the Legislature versus making constitutional challenges
through litigation was confusing. Since Marbury, those who believe their civil liberties have been compromised ate
to look for relief through litigation. Courts have the power to make monumental and needed changes to the law.
When Brown had a problem with the local Board of Education, when the Lovings wanted to be married, when Ms.
Roe wanted the right to choose what to do with her body, they rightfully went to courts to affect change.

7
 Which is why Appellant replied,

“I would love to go to the state legislature, but what

would I ask the state legislature to do? Would I ask them
to remove the prohibitions? [The TAA has] no prohibition
[statute] to remove. Would I ask them to remove the
penalty provisions? There are no penalty provisions to
remove. There is nothing to ask the state legislature
because the Act as written is fine. It would be like [asking]
the state legislature to please affirm that you can drive
straight on a green light. No one would ask a state
legislature to do that because it’s obvious; what isn’t
prohibited is supposed to be assumed to be legal, and
there’s nothing inside that Act that makes procurement of
any kind illegal.”
Id., ln. 15 – Pg. 11, ln. 3.

For a law to be constitutional there must be clear notice of: (1) who is subject

to the enacted regulation; (2) what conduct is being regulated; and (3) what are the

consequences found violators of the statute may face (see Due Process Limitations

on Occupational Licensing, Virginia Law Review (Sept. 1973), Vol. 59, No. 6, pg.

1108).

As detailed below, the TAA has no provision either prohibiting non-licensees

from helping artists procure employment or expressly reserving that activity for

licensees. Without such provisions, Appellee has no constitutional authority to

penalize anyone from engaging in that activity. Similarly, as the Act has no penalty

provision, the Defendant has no constitutional authority to affect the contractual

rights of anyone who engages in such actions.

8
 If Appellee cannot point to a prohibition provision, or at minimum a

penalty provision inside the Act that would satisfactorily imply a prohibition –

an impossibility as no such statutes exist – the Court should find the Act facially

and as Appellee applies it, unconstitutional.

In addition, as Appellee accepts controversies and makes rulings against non-

licensees for transactions where the procurement and services take place outside of

California, and other times when the artist is not a California citizen, the TAA

violates the Dormant Commerce Clause. The TAA was created to protect

California’s artists, not every artist that may step foot in California.

Siegel sued the Labor Commissioner in 2008, making many of the same

claims which were ultimately rejected. However, as will be clear from this process,

the original findings are in direct opposition to all other determinations on similar

issues. For instance, there are no published state or federal cases where an agency,

municipality or state was found to rightly create a penalty when no penalty provision

was ever codified. “Where a statute fails to provide a penalty it has been uniformly

held that it is beyond the power of the court to prescribe a penalty.” New Jersey v.

Fair Lawn Service Center, 20 N.J. 468, 473 (NJ 1956). No exceptions; uniformly

held. Except when Siegel challenged the constitutionality in 2008, when the district

court made the anomalous conclusions.

The findings in the 2008 matter are plainly inconsistent to the lawful,

constitutional execution of licensing/statutory schemes. Thus, per the conditions of

the issue/claim preclusion rules, this matter should be decided on its merits.

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 VIII. ARGUMENT

As held by the United States Supreme Court:

“It is a basic principle of due process that an enactment

is void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values.
“First, because we assume that man is free to steer
between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not
providing fair warning.
“Second, if arbitrary and discriminatory enforcement
is to be prevented, laws must provide explicit standards for
those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis, with
the attendant dangers of arbitrary and discriminatory
application.
“Third, but related, where a vague statute "abut[s]
upon sensitive areas of basic First Amendment
freedoms," it "operates to inhibit the exercise of [those]
freedoms." Uncertain meanings inevitably lead citizens to
‘steer far wider of the unlawful zone' . . . than if the
boundaries of the forbidden areas were clearly marked."
Grayned v. City of Rockford, 408 US 104, 108-109.

In his last District Court filing, Appellant wrote how he did “not need this

Court to affirm the Talent Agencies Act’s unconstitutionality; [Appellee] did that in

1986 when, in a Report the Labor Commissioner authored and submitted to the State

Legislature, stated that the term ‘procure employment’ [in CA Lab. Code 1700.4(a)]

‘so unclear and ambiguous as to leave reasonable persons in doubt about the

10
meaning of the language or whether a violation has occurred.’” Plaintiff’s Reply To

Motion For Reconsideration, Pg. 5, ln. 27 – Pg. 6, ln. 2; ER Vol. 4, Pgs. 320-321.

Appellee’s 1986 statement was not made lightly; made only after a four year

examination of the TAA as the chairperson of the CA. Entertainment Commission

(CEC), a body created to “recommend to the Legislature a model bill regarding this

licensing (of the TAA).” In the Report summarizing the Commission’s findings,

Appellee wrote how,

“There is [ ] an inherent inequity – and some

question of constitutional due process – [ ] of a law so
unclear and ambiguous as to leave reasonable persons
in doubt about the meaning of the language or whether
a violation has occurred.
‘Procure employment’ is just such a phrase. While a
majority of the Commission believes there should be no
unlicensed activity …the uncertainty of knowing when
such activity may or may not have occurred at pain [ ]
has left personal managers uncertain and highly
apprehensive about the permissible parameters of
their daily activity.”
Report of the CEC, Pg. 25; Plaintiff’s Reply Brief for Motion for Summary
Judgment, Pg. 2; ER. Vol 3, Pg. 231.)

The Act’s current verbiage mirrors that of 1986; the Act’s inherent inequity

and due process issues remain because ‘procure employment’ is still undefined.

The ambiguity of what procure employment, as applied, means and how it

has led to arbitrary and often opposite Labor Commission conclusions is detailed in

the Plaintiff’s Motion For Summary Judgment (“MSJ”) (Pgs. 8 – 10, ER Vol. 2,

Pgs. 111 – 113; Pgs. 15-16, ER Vol 2, Pgs. 119-120; Pgs. 19-20, ER Vol. 2, Pgs

11
123-124). Plaintiff asked the District Court to follow this Court’s reasoning for

voiding a Los Angeles municipal ordinance banning people from sleeping in their

cars because it failed “to draw a clear line between innocent and criminal conduct.

… A ‘statute cannot require the public to speculate as to its meaning while risking

[] property in the process.’ See Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).”

Desertrain v. City of Los Angeles, 754 F 3d 1147, 1155 (Ninth Circuit, 2014),

This was just one of the many related arguments the District Court wrongly

decided. Others included:

• Related to the nebulousness of the elements of ‘procuring employment,’

“negotiating” is not “procuring;” the terms are in no way synonymous. The District

Court should have ruled that negotiating a contract offer that the representative did

not procure, as enforced in Solis v. Blancarte, TAC-27089 (2013), proves the

arbitrary nature of vague statutes that must be voided. MSJ, Pg. 19, ER Vol. 2, 123.

• The District should have found the TAA, as applied, by finding personal

managers violate the TAA if they use out-of-state, unlicensed talent agents to help

get their clients work outside of California, MSJ Pg. 27; ER Vol. 2, Pg. 131violated

the Dormant Commerce Clause.

It should have followed Pike v. Bruce Church Inc., 397 U.S. 137, 145 (the

TAA as applied “‘requir[es] business operations to be performed in the home State

that could more efficiently be performed elsewhere.”) and Sam Francis Foundation

v. Christies, 784 F.3d 1320, 1323-24 (Ninth Circuit 2015), where this Court

12
determined that California did not have jurisdiction on transactions that took place

wholly outside of the state.

In her Motion for Judgment on the Pleadings, Appellee pointed to Breuer v.

Top Draw Ent., TAC 18-95 as an example of how she properly and constitutionally

applied jurisdictional analysis to actions that had extra-territorial components. In

Breuer, a New York-domiciled comedian who had been hired to be a cast regular

on SATURDAY NIGHT LIVE, a New York City production, wished to extinguish

his financial obligations through extinguishing the contractual rights of his New

York-domiciled personal manager. The artist presented evidence showing the

manager had sent written materials to a potential talent buyer in Pacific Palisades

and one in Burbank, and that the manager and client visited Los Angeles for eight

days and did showcases at various comedy clubs. Id., Pg. 3, lns 1-16.

Appellee found there was sufficient contact with California to give it

“jurisdiction to hear and determine this controversy,” (Id., Pg 4, lns. 24-26),

interpreting the Act so it protects non-domiciled artists getting out-of-state jobs if

they simply spend a week in California looking for work. This seems indefensible

with an examination of Pike and Sam Francis.

Appellant asks this Court for a de novo examination of these issues.

This brief focuses on the following judicial errors of the Order:

(1) that the TAA does not, as written, reserve any activities to those with

valid talent agency licenses, and thus inarguably fails the void for vagueness test;

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 (2) that as the TAA has no provisions for fine, penalty or consequence, the

remedy of affecting a found violator’s contractual rights has been wrongfully and

unconstitutionally created and applied;

and,

(3) as the TAA, therefore, is on its face and as applied unconstitutional, the

2008 ruling on these same issues with the same parties was plainly inconsistent with

the fair and equitable implementation of a statutory and constitutional scheme, so

the District Court should have ruled that the only way to protect the statute’s fairness

and constitutionality going forward was to deny the Appellee’s preclusion claims.

A. As The TAA Has No Penalty Provision, The Order Should Have Found The
Legislature Did Not Give Adjudicators Authority To Mete Out Penalties

The Talent Agencies Act has no penalty provision. “[T]he TAA does not

define a penalty for engaging in unlicensed procurement of artists…” Order at 8.

The Act “is silent -- completely silent – on the subject of the proper remedy

for illegal procurement.” Marathon v. Blasi, 42 Cal. 4th 974, 987.

With no penalty provision, no statutory fine, penalty or consequence, no

adjudicator has authority to penalize: creating statutory guideposts “is a task outside

the bounds of judicial interpretation”. U.S. v. Evans, 333 U.S. 483, 495 (1948).

Buchwald v. Superior Court, 254 Cal.App2d 347 was the first reported case

(Id. at 357) to consider whether an unlicensed artists’ representative found to be

procuring employment offers for their clients were acting unlawfully, and if

representative were found to have been acting unlawfully, what remedy the violator

14
should face. It found the TAA did provide authority to mete out penalties; in

particular, to void a found violator’s contract.

"Since the clear object of the Act is to prevent

improper persons from becoming [talent agents] 2 and to
regulate such activity for the protection of the public, a
contract between an unlicensed [agent] and an artist is
void. (See Wood v. Krepps, 168 Cal. 382, 386; Loving &
Evans v. Blick, 33 Cal. 2d 603, 608-609, Albaugh v. Moss
Constr. Co., 125 Cal. App. 2d 126, 131-132. Contracts
otherwise violative of the Act are void (see Severance v.
Knight-Counihan Co. (1947) 29 Cal2d. 561 568 (1947);
Smith v. Bach, 183 Cal 259, 262.”
Buchwald at 351.

But, as detailed to the District Court, Buchwald is bad law. It either

consciously or in error misconstrued the holdings of each referenced precedents, all

of which require the existence a penalty provision before a judge or administrative

agency can affect anyone’s contractual rights. The CASC holdings are as follows:

• Wood (at 386) refused to void a contract because the ordinance did not

“declare that a contract made by any one in the conduct of the various businesses

for which licenses are provided to be procured … be invalid; nor is there any

provision therein indicating in the slightest this failure was intended to affect in any

degree the right of contract.” The TAA has no codified provision giving authority

to affect the contractual rights of an unlicensed procurer. Following Wood,

Buchwald should have determined the Act, as enforced, was unconstitutional.

Motion For Summary Judgment (“”MSJ”), Pgs. 23-24; ER Vol. 2, Pgs. 127-128.

2
Until 1978, it was the Artists Managers Act and talent agents were referred to as Artists’ Managers.

15
 • Smith at 262: “The imposition by statute of a penalty implies a prohibition

of the act to which the penalty is attached, and a contract founded upon such act is

void.” The TAA has no penalty statute, per Smith, no adjudicator can impinge on

any party’s contract. MSJ, Pg. 24, ER Vol. 2, Pg. 128.

• Loving at 608: “[I]t has been repeatedly declared in this state that ‘a

contract made contrary to the terms of a law designed for the protection of the public

and prescribing a penalty for the violation thereof is illegal and void, and no action

may be brought to enforce such contract.’” As the TAA has no prescribed penalty,

Buchwald should have followed Loving and found there was no authority to declare

a contract void. MSJ, Pg. 24, ER Vol. 2, Pg. 128.

Severance at 568: “The general rule controlling in cases of this character is

that where a statute prohibits or attaches a penalty to the doing of an act, the act is

void, and this, notwithstanding that the statute does not expressly pronounce it so,

and it is immaterial whether the thing forbidden is malum in se or merely malum

prohibitum. ... The imposition by statute of a penalty implies a prohibition of

the act to which the penalty is attached, and a contract founded upon such act

is void.’ Smith v. Bach at 262."

Severance at 572: “If the statute does not provide expressly that its violation

will deprive the parties to sue on the contract and the denial of the relief is wholly

out of proportion to the requirements of public policy or appropriate individual

punishment, the right to recover will not be denied.” Petitioners in TAA disputes do

not claim damages. Just the opposite, they initiate proceedings so that, if successful,

16
they will not have to pay for the benefit of the accused labors – voiding contractual

obligations to remit the agreed-to percentage of their revenues. No public policy

requires litigants already whole to be further enriched, which is what happens when

an artist’s fiscal obligations are disgorged.

"Where the enabling statute is essentially remedial,

and does not carry a penal program declaring certain
practices to be crimes or provide penalties or fines in
vindication of public rights, an agency does not have
discretion to devise punitive measures such as the
prescription of penalties or fines. …
“An administrative agency cannot by its own
regulations create a remedy which the Legislature has
withheld. 'Administrative regulations that alter or amend
the statute or enlarge or impair its scope are void and
courts not only may, but it is their obligation to strike
down such regulations.' Morris v. Williams, 67 Cal 2d
733, 748 (1967).” Dyna-Med Inc. v. Fair Empl. &
Housing Comm., 43 Cal. 3d 1385,1388 (1987).

“It is fundamental an administrative agency may not

usurp the legislative function, no matter now altruistic
its motives are.' Agricultural Lab. Relations Bd. v.
Superior Court, 16 Cal.3d 392, 419 (1976)."
Motion for Reconsideration (MFR), Pg. 17, lns. 4-7; ER Vol. 4, Pg. 301.

As the Order (at 8) noted, the District Court was “constrained to defer to the

highest state court on a matter of state law, Styers v. Ryan, 811 F.3d 292, 298 (9th

Cir. 2015)” and how “the California Supreme Court (CASC) has repeatedly held

that a contract made in violation of the TAA is voidable. See Marathon v. Blasi, 42

Cal.4th 974, 992, n.11; Styne v. Stevens, 26 Cal. 4th at 45.”

17
 But neither of these citations are holdings; they are dicta. Marathon (Pg. 992,

n. 11) expressly refers to how Styne, “noted in dicta that ‘an unlicensed person’s

contract with an artist to provide the services of a talent agency is illegal and void.’

(Waisbren v. Peppercorn Prods., Cal App.4th 246, 261 (1995), Buchwald at 351.)”

In point of fact, the CASC has never been asked to consider and subsequently

held that a contract made in violation of the TAA is voidable; it has only accepted

that conclusion in dicta. Marathon considered and made holdings on two issues:

whether adjudicators of TAA disputes should consider severability, and whether the

TAA applied to personal managers. Styne (at 45) considered whether the statute of

limitations bars a TAA defense with no claim for affirmative relief and if TAA

claims must, “if colorable, … first be referred to the Commissioner for resolution.”

Neither Marathon nor Styne considered whether voidance was appropriate,

they simply followed (see Id. at 51) Waisbren v. Peppercorn Prods., Cal App.4th

246, 261 (1995) and Buchwald v. Superior Court, 254 Cal.App2d 347, 351 for the

authority to void.

Nor was the presence/need of a penalty provision an issue at bar or essential

to Waisbren. Waisbren at 261 simply cites Buchwald. And both Waisbren and

Buchwald, like the Order, cite Severance at 568: “The general rule controlling in

cases of this character is that where a statute prohibits ... the doing of an act, the act

is void, and this [is the consequence], notwithstanding that the statute does not

expressly pronounce it so.'"

18
 However, Severance, in full, does not stand for the notion prohibitions imply

voidance, but instead, that a penalty provision implies a prohibition.

“The general rule controlling in cases of this character is that

where a statute prohibits or attaches a penalty to the doing of
an act, the act is void, and this, notwithstanding that the statute
does not expressly pronounce it so, and it is immaterial whether
the thing forbidden is malum in se or merely malum
prohibitum. ... The imposition by statute of a penalty implies
a prohibition of the act to which the penalty is attached,
and a contract founded upon such act is void.’ Smith v. Bach
at 262." Severance at 568. (Emph. Added)

Leaving out the requirement of ‘imposition by statute of a penalty’ is

analogous to leaving ‘not’ out of the sentence, “You cannot legally run a red light.”.

The Order, constrained by the tenet embodied in Styers, what to follow the

CASC holdings of Severance, Wood, Smith and Loving, not the dicta of Marathon

and Waisbren referencing the three Court of Appeals cases which for whatever

reason misconstrued the Severance/Smith CASC holding.

Per Styers, the Order was also constrained to follow the CASC holdings

barring the Labor Commissioner from creating a non-codified remedy:

"Where the enabling statute is essentially remedial, and

does not carry a penal program declaring certain practices
to be crimes or provide penalties or fines in vindication of
public rights, an agency does not have discretion to devise
punitive measures such as the prescription of penalties or
fines. …
“An administrative agency cannot by its own
regulations create a remedy which the Legislature has
withheld. 'Administrative regulations that alter or amend
the statute or enlarge or impair its scope are void and

19
 courts not only may, but it is their obligation to strike
down such regulations.' Morris v. Williams, 67 Cal 2d
733, 748 (1967).” Dyna-Med Inc. v. Fair Empl. &
Housing Comm., 43 Cal. 3d 1385,1388 (1987).

“It is fundamental an administrative agency may not

usurp the legislative function, no matter now altruistic its
motives are.' Agricultural Lab. Relations Bd. v. Superior
Court, 16 Cal.3d 392, 419 (1976)."
Motion for Reconsideration (MFR), Pg. 17, lns. 4-7; ER Vol. 4, Pg. 301.

Per Styers, the Order should have followed Dyna-Med and Agricultural Lab.

and determine the Act, as enforced, is unconstitutional.

The Order (at 7) cites multiple cases finding civil statutes constitutional with

less clarity than criminal statutes. This simply does not apply because here: the issue

is not degree of notice, but that the TAA provides zero notice. A statute without

notice does not in result in less clarity, it results in zero clarity… and while the

“strict constitutional safeguards afforded to criminal defendants are not applicable

to civil cases … the basic protection against 'judgments without notice' afforded by

the Due Process clause [citation] is implicated by civil penalties.” BMW of America

v. Gore, 517 U.S. 559, 574. MFR, Pg. 16, Lns. 22-25; ER Vol. 4, Pg. 300.

“Engrained in our concept of due process is the requirement of notice. Notice

is sometimes essential so that the citizen has the chance to defend charges. Notice

is required before property interests are disturbed, before assessments are made,

before penalties are assessed.” Wolff v. Fox, 68 Cal. App. 3d 280 (1977) citing

Lambert v. California 355 U.S. 225, 228 (1957). MSJ, Pg. 21; ER Vol. 2, Pg 125.

20
 In summarizing Appellant’s position ten years ago during the 2008 oral

argument, Judge Snyder said she had “to determine whether there is sufficient notice

of penalty in the statute.” Transcript of Oral Argument, September 8, 2008, Judicial

Notice Exhibit 1, Pg. 12, lns. 14-18. (Emphasis added.)

The 2008 Order determined that the Talent Agencies Act, §§ 1700 et seq of

the CA. Labor Code, did have sufficient notice of penalty. It did not, however,

despite the Court’s directive to itself, find that notice inside the TAA, or even in the

Labor Code. Rather, the 2008 Order determined that the penalty provision for the

Talent Agencies Act, without any internal reference, can be found in § 1598 of the

CA. Civil Code, the statutory embodiment of the doctrine of severability.

When the parties arrived for oral argument on February 12, 2018, there was

a tentative order, which again included the determination that the notice of penalty

in CA. Labor Code 1700 et seq. was, without reference, in CA. Civil Code § 1598.

During argument, Appellant told the judge about how, ten years before…

“I left your courtroom ten years ago happier than I had

ever been in my life. I was a former standup comedian and I
was used to standing ovations, but when you took away the
tentative and you said, ‘Mr. Siegel, I understand. I must find
a penalty provision inside the TAA or it is ruled
unconstitutional, I walked out knowing we had won and it
was over.

“That afternoon, as high as I was that morning, to read

that you had found the penalty provision inside of the TAA,
but not even inside the [] Labor Code, but inside the Civil
Code inside the severability statute, I was as low as I’ve ever
been in my life … particularly with time to recognize that

21
 not only is that … the epitome of vagueness where someone
was asked to look to see what the penalty is has to know to
look in a completely separate set of codes, but that the
severability statute is not a notice of penalty.

“In fact, [§ 1598 gives] notice that there may be partial

compensation due … [A court has already found] reason for
voidness,” and only after that does severability become
relevant, meaning § 1598 is notice of the potential for
payment, not a notice for penalty. See Oral Argument, Pg.
4, Line 22 – Pg. 6, Ln. 1.

The finding in the Tentative Order of February 12, 2018 that the penalty

provision for Labor Code §§ 1700 et seq can be found in the Civil Code § 1598 was

not in the district court Order of March 16, 2018. However, despite saying in 2008

there had to be sufficient notice of a penalty inside TAA for it to be constitutional,

in 2018 the Court ruled otherwise accepting the TAA was constitutional without

having any notice of remedy.

It is impossible to know, had the district court not wrongly found § 1598 of

the Civil Code was sufficient notice, whether the 2008 Order would have been in

favor of the Appellant, another reason for Issue Preclusion not to apply. Clearly, had

the 2018 Order followed Judge Snyder’s original instinct from the oral hearing in

2008, that there must be “sufficient notice inside the statute” for the TAA to be

constitutional, she would have followed, as the law requires, Styers, Wood, Smith,

Loving, Severance, Dyna-Med, Agricultural Lab. Relations Bd., Wolfe, Lambert,

Evans, BMW and Lambert and Appellant would have prevailed.

Appellant respectfully requests this Court corrects that error.

22
B. The Order Wrongly Found The TAA Reserves Procurement For Licensees

Per CA. Civil Code 3530, “That which does not appear to exist is to be

regarded as if it did not exist.”.

As noted above, in finding only a prohibition provision was needed to void

TAA contracts, the Order (at 8) relied on ‘the general rule’ “where a statute prohibits

or penalizes certain conduct, the courts will infer a prohibition of contracts based on

such conduct.’ R.M. Sherman Co. Supra.

As detailed above, the TAA’s lack of penalty provision is an insurmountable

barrier. Equally compromising: The TAA, as written, does not bar non-licensees

from any activities licensees engage in.

This question has never been answered: though it is accepted that procuring

employment for artists is the exclusive domain of licensees, no court has ever ruled

on a challenge to that assumption.

“[I]n order for a consequence to be implied from a statute there must be

greater justification for its inclusion than a consistency or compatibility with the act

from which it is implied. A necessary implication within the meaning of the law is

one that is so strong in its probability the contrary thereof cannot reasonably be

supposed.” Grubb & Ellis v. Bello, 19 Cal.App. 4th 231, 240 (1993).

All state licensing schemes identify practitioners of the regulated occupation

with statutes defining their activities. Labor Code § 1700.4(a) defines talent agents

as those who: (1) effort to procure employment opportunities for actors, writers,

23
directors and other artists, and some may (2) direct and (3) counsel their artist

clients(booking agents are talent agents, but only give clients offers, they do not

offer advice as to whether their artist should take the booking).

§ 1700.4 (a) has no verbiage in any way limiting these activities to licensees.

BPC § 6980 (j) defines the occupation of locksmith through a list of the

variety of activities locksmiths engage. It also has a second statute, § 6980.10 (a),

that expressly limits those activities to those with licenses. Per § 6980.10 (a), no one

in California can engage “in the activities of a locksmith as defined in subdivision

(j) of Section 6980, unless the person holds a valid locksmith license, is registered

pursuant to the provisions of [that] chapter, or is exempt from” those provisions as

explained fully in § 6980.12.

BPC § 7026.1 (a) (1-2.6) and § 7026.3 - § 7026.12 defines the term

‘contractor’ by the activities contractors engage.

BPC § 7027 is a prohibition statute; reserving the title of ‘contractor’ to those

having a valid contractor’s license; prohibiting non-licensees from holding

themselves out as contractors.

PBC § 7027.1 makes it a misdemeanor to advertise to do construction work

without a license, excepting those with building or engineering contractor licenses.

BPC § 7027.2 gives notice exempting general handymen contracting for

work costing less than $500 can engage in the otherwise-prohibited activities.

24
 BPC § 7028.1 – 7028.2(h) gives notice that those without a contractor’s

license cannot engage in “acts covered by this chapter” and violators face

misdemeanor charges, fines and imprisonment.

The Talent Agencies Act has neither a statute expressly reserving the title

“talent agent” to licensees nor one prohibiting non-licensees from engaging in the

occupation’s defined activities in Labor Code § 1700.4(a).

BPC § 7316 of the State Barbering and Cosmetology Act defines the practice

of barbering as all or any combination of the many elements of beautifying and

maintaining one’s scalp face and neck. Per § 7317, anyone who engages in any of

those activities without a license, or provides services outside “those areas for which

they are licensed,” is “subject to an administrative fine and may be subject to a

misdemeanor.” Here again, the TAA has no such statutes.

Each of Appellant’s lower court briefs detail how almost all of California’s

business licensing schemes have codified statutes: (1) reserving the defined

activities to licensees / prohibiting non-licensees from engaging in the defined

activities, and (2) notice of remedy for ignoring that prohibition.

Appellant’s Motion for Summary Judgment (“RSMSJ”) examines the few

exceptions; licensing schemes constructed, like the Talent Agencies Act, without

statutes limiting the defined activities of landscape architects, psychologists, or

accountants, to licensees. See RSMSJ, Pgs. 11-13; ER Vol. 2, Pgs. 115-117.

Appellant knows of no instance, and Appellee did not introduce any to the

District Court, where California found those using the defining activities of the

25
Landscape Architects Act (BPC § 5615/maintaining and beautifying outdoor areas);

the Geologists Act (BPC §§ 7802.1/7803, examining the Earth’s materials); the

Psychologists Act (BPC § 2903/psychological principles to affect someone else’s

behavior); and State Accountancy Act (BPC § 5051/keeping a business’s financial

records) had violated that Act’s licensing scheme. Appellee’s interpretation and

enforcement of the TAA is an anomaly.

Each of these Acts have codified provisions that reserve the title of geologist,

psychologist, landscape architect or accountant to those with licenses, and give

notice that those found using the title without a license face consequence.

The TAA has neither a provision reserving its defining activities to licensees

nor bars those without a valid license from using the title of the regulated profession.

Without the Legislature codifying any prohibitions of activities, no court has the

authority to assume or create any prohibition or remedy. As noted above, doing so,

“is a task outside the bounds of judicial interpretation.” U.S. v. Evans Supra.

As this Court knows, there are a litany of rules of statutory interpretation. All

the applicable ones stand for the same notion, that it is absurd to interpret Labor

Code 1700.4 (a) to prohibit anyone from doing anything, all it does is list three

activities defining a talent agent’s responsibilities.

Among the rules of statutory interpretation that the current enforcement of

the TAA conflicts with…

26
 • Harmonious-Reading Canon: “The provisions of a text should be

interpreted in a way that renders them compatible, not contradictory.” 3

Interpreting Labor Code § 1700.4 (a) to reserve the defined activities for

licensees is anomalous to how all the other licensing schemes are interpreted.

• Constitutional-Doubt Canon/Avoidance Canon: A statute should be

interpreted in a way that avoids placing its constitutionality in doubt.” Id.

The TAA is interpreted opposite to every other licensing scheme with similar

statutory construction – Nurses, Landscape Architects, Accountancy, Psychologists,

etc. – where no activities are reserved for licensees. There would be no doubt about

the ‘as applied’ constitutionality of the TAA if the interpretation of the Act matched

its statutory construction.

Absurdity Doctrine: “A provision may be either disregarded or judicially

corrected as an error (when the correction is textually simple) if failing to do so

would result in a disposition that no reasonable person could approve.” Id.

No reasonable person would look at § 1700.4 (a) in a vacuum…

“‘Talent agency’ means a person or corporation who

engages in the occupation of procuring, offering, promising,
or attempting to procure employment or engagements for an
artist or artists…[and] may, in addition counsel or direct the
development of their professional careers.”

http://www.law.uh.edu/faculty/adjunct/dstevenson/2018Spring/CANONS%20OF%20CON
3

STRUCTION.pdf ; “Canons of Construction,” adapted from the book “The Interpretation of

Legal Texts” authored by Justice Antonin Scalia and Bryan A. Garner.

27
 …and conclude it in any way reserves any of the three listed activities for

licensees; there is no verbiage of prohibition in this statute. It is even more absurd

to think that someone could look at this statute and conclude that non-licensees are

prohibited from procuring but can engage in counseling and directing artists. How

would anyone make those distinctions? As stated by Justice Scalia and his co-

author, this court should and must judicially correct this error by finding Appellee’s

application of the Act, that anyone can counsel and direct artists but only licensees

can procure, to be void for vagueness.

Surplusage Canon: “If possible, every word and every provision is to be

given effect (verba cum effectu sunt accipienda). None should be ignored. None

should needlessly be given an interpretation that causes it to duplicate another

provision or to have no consequence.” Id.

If, as § 1700.4 (a) has been interpreted, the very listing of defining activities

of a regulated occupation bars non-licensees from engaging in those activities, as

every occupation is defined by its practitioners’ activities, there was no need for the

Contractor’s Act statutes reserving a litany of already-defined activities for

licensees. Or any licensing scheme to ever codify prohibition statutes; the

prohibitions would be axiomatically implied by them being a defined activity.

Conversely, if the defined activities of a regulated occupation axiomatically

reserve those activities for licensees, it is therefor unlawful for someone to mow a

lawn, weed a garden, or otherwise beautify and maintain an outdoor area without a

landscape architect license; or for a salesman, pastor, life coach, consultant or

28
teacher to use psychological principles to affect another’s behavior without first

satisfying the requirements and obtaining a psychologist’s license. And that, of

course, is absurd.

It is just common sense. The TAA does not have a provision reserving any

activity so Appellee should apply the Act as such.

As noted in the Opposition to Defendant’s Motion For Judgment On The

Pleadings (OMJP) Pg 15, lines 4-6, "Living under a rule of law entails various

suppositions, one of which is that ‘[all persons] are entitled to be informed as to

what the State commands or forbids.' FCC v. Fox Television Stations, Inc., 132 S.

Ct. at 2317.”

Appellee accedes to the need of notice: none of their district court filings

dispute this claim in the Complaint (at 9, ER Vol. 1, Pg. 9, lns. 24-27) and presented

in detail in Plaintiff’s Motion For Summary Judgment (Pgs. 11-13, Pgs. 18-19; ER

Vol. 2, Pgs. 115-117; Pgs. 122-123) and in Plaintiff’s Opposition To Motion for

Judgment On The Pleadings (Pg. 13, line 21 – Pg. 15, line 7; ER 2, Pgs. 157-159).

Unless Appellee shows the Court a statute that reserves procurement – but

not counseling or directing – for valid licensees, then this Court should follow FCC

and find that since no one has been informed as to what the State commands or

forbids, find 1700.4 (a) on its face and as Appellee applies it is unconstitutional.

29
 It her Motion For Judgment on the Pleadings (“MJP”), Appellee claims that

as the terms “procure” and “employment” are easily understood, § 1700.4 (a) is not

in any way vague. MJP Pg. 10, Ln. 21 – Pg. 12, ln. 18; ER Vol. 1, Pgs. 36-38.

As a provision defining the activities talent agents engage in, Appellee is

correct; it is not vague. But that is not the question at bar; rather it is whether there

is sufficient constitutional clarity in § 1700.4 (a) as a prohibition provision without

it having any language barring non-licensees from engaging in the defined activities

or reserving the defined activities to licensees. Appellee did not answer that in any

of her district court briefs and will not answer it now because the question is

unanswerable: despite Appellee’s steadfastness that 1700.4 (a) “prohibits

unlicensed persons from ‘procuring employment’ for artists” (Id., Pg. 13, Lns. 8-9;

ER Pg. 39), it does no such thing: it has none of the needed, restrictive verbiage to

be a prohibition provision. Unless Appellee can explain why §1700.4 (a) does not

need the restrictive verbiage all other prohibition provisions provide, § 1700.4 must

be ruled unconstitutionally vague.

Likewise, while Appellee (MSJ, Pg. 12, Lns. 19-27; ER Vol. 1, Pg. 12) notes

that no license is needed to counsel and direct artists, two of the three defining

activities of a talent agent she offers no explanation as to why those activities are

lawful and procurement unlawful without § 1700.4 (a) having any clarifying

verbiage. Appellee cannot rely on the dicta of Styne to answer this; it is a statutory

construction question: how can a reasonable person reading § 1700.4 (a) ascertain

that they can direct and counsel but not procure for artists?

30
C. Appellee’s Arguments Rely On Three Assumptions That Contradict Every
Principle of Statutory Construction

Appellee’s argument, in summary, is that:

(1) The Legislature intended to and created a prohibition of non-licensees

from procuring employment for artists in Lab. Code § 1700.4 (a) without expressing

that prohibition statutorily;

(2) The Legislature intended to and created an exception to the prohibition in

Labor Code § 1700.4 (a) allowing non-licensees to lawfully direct and counsel

artists, the other defined activities of a talent agent, without expressing those

exceptions statutorily;

(3) The Legislature intended to and created the remedy of voiding the

contractual rights of found violators of this statutorily unexpressed prohibition

without expressing the remedy statutorily, and

(4) Despite studying the TAA for four years and subsequently authoring a

Legislative Report saying that the term “procure employment” was ambiguous and

created due process issues, § 1700.4 (a) passes the constitutional bar of clarity.

Along with all the previously stated canons of statutory construction, to

accept these assumptions as true legislative intent also requires violating the

‘Omitted-Case Canon: Nothing is to be added to what the state texts or reasonably

implies (casus omissus pro omisso habenus est). That is, a matter not covered is to

be treated as not covered.” 4

4
“Canons of Construction” supra.

31
 “The Whole Text Canon: The text must be construed as a whole.” The

consistency to the text of the TAA is its lack of prohibitions and penalty. This, in

concert with the legal maxim, ““That which does not appear to exist is to be regarded

as if it did not exist” makes it clear that Appellee should interpret the lack of a written

prohibition or penalty as that there are no prohibitions of penalties. Relatedly, per the “Rule

of Lenity, “Ambiguity in a statute defining a crime or imposing a penalty should be resolve

in the [violator’s] favor.” 5 As there is no clarity, at most there is ambiguity, and as such it

should be interpreted as there is no imposition of penalty or prohibition.

There are ways to show evidence of Legislative Intent. Appellee has not

submitted anything; instead simply asking District Court to accept, “Because I said

so.” Perhaps Appellee can find evidence to present the Court of Appeal.

D. Appellee Disingenuously Argues Buchwald Is Good Law But The Precedents

Buchwald Cited For Its Authority Are Non-Applicable

Appellee convinced the District Court and will now ask this Court to follow

Buchwald and the dicta of Styne over the holdings in Wood, Smith, Loving and

Severance. Appellee claims Appellant used “cherry-picked quotations” (Opposition

to Plaintiff’s MSJ, Pg. 15, Ln. 1 – Line 3; ER Vol. 3, Pg. 195) to “derive [] the rule

that the contract must be illegal and void unless the Legislature has prescribed a

cumulative sanction in the licensing scheme” from cases that in no way “involved

the TAA or any of its predecessor statutes.

5
“Canons of Construction” supra.

32
 Appellee was being disingenuous; she knew Appellant did not ‘cherry-pick’

but rather pointed to the exact cites referenced by Buchwald:

“Since the clear object of the Act is to prevent improper

persons from becoming artists' managers and to regulate
such activity for the protection of the public, a contract
between an unlicensed artists' manager and an artist is void.
(See Wood v. Krepps, 168 Cal. 382, 386; Loving & Evans
v. Blick, 33 Cal. 2d 603, 608-609; … Contracts otherwise
violative of the Act are void (see Severance v. Knight-
Counihan Co., 29 Cal. 2d 561, 568; Smith v. Bach, 183
Cal. 259, 262.”

Appellee took great pains to attack Appellant’s credibility by claiming, “The

Court did not refuse to void the contract because the ordinance did not prescribe a

penalty, as Siegel suggests,” but “because the ordinance [in Wood] was a revenue-

raising statute, not a regulatory statute. See Wood, 143 P. at 693-94.” (Opposition

to Plaintiff’s MSJ, Pg. 14, Lns. 10-13; ER Vol. 3, Pg. 194)

If Appellee has the winning hand, why deceive the court, ‘cherry-picking’ a

different Wood quote than Buchwald used?

This Court must reject Appellee’s claim that Buchwald is good law, but the

holdings Buchwald used as authority to make its finding are non-applicable. Instead,

the general rule for business licensing should be followed – that even if there is no

prohibition, the imposition of a penalty for engaging in activity is a satisfactory

implication that the engaging in that activity without a license is prohibited.

Appellee cannot show the TAA has a penalty provision, the CASC made it

clear in Marathon (at 987) that the Act “is silent -- completely silent – on the subject

33
of the proper remedy for illegal procurement.” Equally important, Appellant cannot

defend the decades-long assumption that without any words barring non-licenses or

otherwise reserving any defined activities for licensees, CA. Labor Code 1700.4 (a)

qualifies as a prohibition provision. With neither a prohibition nor penalty provision,

there must be a finding that the TAA is unconstitutionally void for vagueness.

E. The Order Wrongly Did Not Determine This Action Satisfies An Exception To
The Issue And Claim Preclusion Rules

As stated in Plaintiff’s Opposition to the Defendant’s Motion For Judgment

On The Pleadings, “Issue Preclusion, even when the same parties are litigating the

same issues as was argued in a past court case, is not an absolute:

“There are exceptions to the rule. These are defined in

Restatement (Second) of Judgments § 26(1)(d): ‘The
judgment in the first action was plainly inconsistent with
the fair and equitable implementation of a statutory or
constitutional scheme, or it is the sense of the scheme that
the plaintiff should be permitted to split his claim. … [T]he
first decision involve[s] an issue of law.’”
Preclusion as to Issues of Law: The Legal System’s Interest, Geoffrey C.

Hazard Jr., Yale Law Faculty Scholarship Series, Pg. 83-84.

Buchwald is plainly inconsistent with the CASC holdings of Wood, Smith,

Loving, and Severance. Re-litigation and re-examination are the only ways to

guarantee the scheme’s continued implementation will be fair and equitable.

For a business licensing scheme to be fair and equitable, there must be notice

of what, if any, activities are reserved for licensees, and the remedy citizens face

34
should they choose to ignore the prohibitions. Unless Appellee magically can conjure

up prohibition and penalty provision statutes inside the TAA, the only way for this

Court to ensure the fair and equitable implementation of the TAA is to recognize that

the 2008 action is plainly inconsistent with how business licensing schemes are to be

implemented and to allow this matter to be decided on its merits.

This Court is, per the standard of review, consider all of these issues de novo.

For the TAA to be constitutional, the Court must find Labor Code § 1700.4 (a)

expressly reserves procurement for licensees and allows anyone to direct and counsel

artists; it must find that the TAA gives notice of remedy, and that as applied, the

TAA is never enforced in a way that violates the Dormant Commerce Clause. If it

cannot do any of those things, the Court should find the Order contained material

judicial errors.

VIII. CONCLUSION

The CA. Legislature never enacted a law prohibiting anyone from helping an

artist find employment, never reserved the title of Talent Agent to those with talent

agency licenses, and it never codified a remedy for action it never prohibited. Thus,

the TAA is facially and CA. Labor Code § 1700.4 (a) is, as applied, unconstitutional.

Appellee proudly points a case of a New York-based comedian who utilized

to TAA to extinguish the contractual rights of a New York-based personal manager

to avoid paying commissions on a show produced live in New York City. Nothing

better highlights how the TAA as applied violates the Dormant Commerce Clause.

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 While the Court can return this matter to the District Court with instructions

to recognize that the Talent Agencies Act is devoid of the needed elements for

constitutional clarity, Appellant requests the Court use its authority to declare these

statutes on their face and Appellee’s application of them unconstitutional, and give

the deserved declarative relief requested in Appellee’s complaint.

Dated August 13, 2018

Respectfully Submitted,

By: /s/ Rick Siegel

Rick Siegel, Pro Per Attorney for Rick Siegel
22647 Ventura Boulevard, Ste. 451
Woodland Hills CA 91364

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 CERTIFICATE OF COMPLIANCE

I hereby certify this brief does not exceed the type-volume limitation imposed

by Federal Rules of Appellate Procedure 32(a)(7)(B). The brief was prepared using

Microsoft Word For Mac and contains 8,824 words of proportionally spaced text.

The typeface is Times New Roman, 13-point font.

By: /s/ Rick Siegel

RICK SIEGEL, pro per

22647 Ventura Boulevard, Ste 451
Woodland Hills, CA 91364
Tel: (323) 864-7474

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 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Reply Brief for

Appellant with the Clerk of the Court for the United States Court of Appeals for

the Ninth Circuit by using the appellate CM/ECF system on August 13, 2018. All

persons who are required to be served are registered CM/ECF users, who will be

served by the appellate CM/ECF system.

By: /s/ Rick Siegel

38