Appellee Answer Brief Oct 12 2018

Case: 18-55569, 10/12/2018, ID: 11044745, DktEntry: 13, Page 1 of 55
18-55569
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK SIEGEL,
Plaintiff-Appellant,
v.
JULIE A. SU,
Defendant-Appellee.
On Appeal from the United States District Court

for the Central District of California
No. 2:17-cv-07203 CAS (SSx)
Hon. Christina A. Snyder, District Judge
APPELLEE’S ANSWERING BRIEF
XAVIER BECERRA JOHN W. KILLEEN

Attorney General of California Deputy Attorney General
THOMAS S. PATTERSON State Bar No. 258395
Senior Assistant Attorney General 1300 I Street, Suite 125
BENJAMIN M. GLICKMAN P.O. Box 944255
Supervising Deputy Attorney Sacramento, CA 94244-2550
General Telephone: (916) 210-6045
Fax: (916) 324-8835
Email: [email protected]
Attorneys for California Labor
Commissioner Julie A. Su
TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................... 1
JURISDICTIONAL STATEMENT .............................................................. 3
STATEMENT OF ISSUES ........................................................................... 4
STATEMENT REGARDING ADDENDUM............................................... 5
STATEMENT OF THE CASE ..................................................................... 5
I. California’s Talent Agencies Act Is Designed to Protect
Performers ................................................................................. 5
A. The History of the TAA .................................................. 5
B. The TAA Requires Talent Agencies to Be
Licensed .......................................................................... 6
C. The TAA Is Enforced by the Labor Commissioner ....... 8
II. In 2008, the District Court Dismissed Siegel’s Challenge
to the Constitutionality of the TAA, a Decision Which
This Court Affirmed. ............................................................... 11
III. Siegel’s 2017 Complaint Again Challenged the
Constitutionality of the TAA .................................................. 12
IV. The District Court Again Dismissed Siegel’s Complaint ....... 13
SUMMARY OF ARGUMENT ................................................................... 14
ARGUMENT ............................................................................................... 15
I. Standard of Review ................................................................. 15
II. The District Court Properly Dismissed Siegel’s
Vagueness Claims. .................................................................. 16
A. Issue Preclusion Bars the Complaint’s Vagueness
Claims ........................................................................... 16
B. The TAA Is Not Unconstitutionally Vague.................. 21
1. Legal Standard for Vagueness Claims ............... 21
i
TABLE OF CONTENTS
(continued)
Page
2. It Is Clear Who Is Subject to Regulation

Under the TAA ................................................... 23
3. It Is Clear What Activity Is Regulated by the
TAA .................................................................... 26
4. It Is Clear What the Consequences Are for
Violating the TAA .............................................. 28
III. The District Court Properly Dismissed Siegel’s Dormant
Commerce Clause Claims. ...................................................... 34
A. The District Court Correctly Determined that
Siegel’s Dormant Commerce Claims Were Barred
by Claim Preclusion ...................................................... 35
B. The District Court Correctly Determined that Even
if Siegel’s Dormant Commerce Claims Were Not
Barred by Claim Preclusion, the TAA Does Not
Violate the Dormant Commerce Clause ....................... 36
1. Legal Standard for Dormant Commerce
Clause Claims ..................................................... 36
2. The TAA Does Not Operate
Extraterritorially ................................................. 38
CONCLUSION ............................................................................................ 42
STATEMENT OF RELATED CASES ....................................................... 43
ADDENDUM TO APPELLEE’S ANSWERING BRIEF .......................... 44
CERTIFICATE OF COMPLIANCE........................................................... 46
ii
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris
729 F.3d 937 (9th Cir. 2013) ................................................................... 39
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth.

476 U.S. 573 (1986)........................................................................... 36, 37
Chinatown Neighborhood Ass’n v. Harris

794 F.3d 1136 (9th Cir. 2015) ..................................................... 38, 39, 41
Grayned v. City of Rockford

408 U.S. 104 (1972)................................................................................. 21
Gregg v. Haw. Dep’t of Pub. Safety
870 F.3d 883 (9th Cir. 2017) ................................................................... 15
Healy v. Beer Inst.

491 U.S. 324 (1989)................................................................................. 36
Hill v. Colorado
530 U.S. 703 (2000)........................................................................... 22, 23
Hoye v. City of Oakland
653 F.3d 835 (9th Cir. 2011) ................................................................... 22
Lauwrier v. Garcia
No. 12-07381 MMM (C.D. Cal. Mar. 8, 2013), 2013 WL
11238497 ................................................................................................. 25
Legal Aid Servs. of Or. v. Legal Servs. Corp.

608 F.3d 1084 (9th Cir. 2010) ................................................................. 22
Lopez-Valenzuela v. Arpaio
770 F.3d 772 (9th Cir. 2014) ................................................................... 16
iii
(continued)
Page
Nat’l Ass’n of Optometrists & Opticians

682 F.3d 1144 (9th Cir. 2012) ........................................................... 36, 37
Nat’l Conference of Pers. Managers v. Brown
No. 12-09620 DDP (RZX) (C.D. Cal. Aug. 13, 2015), 2015
WL 4873541 ............................................................................................ 27
Pest Comm. v. Miller

626 F.3d 1097 (9th Cir. 2010) ................................................................. 22
Pharm. Research & Mfrs. of Am. v. Cnty. of Alameda

768 F.3d 1037 (9th Cir. 2014) ........................................................... 38, 39
Pickup v. Brown
740 F.3d 1208 (9th Cir. 2014) ................................................................. 22
Pike v. Bruce Church, Inc.
397 U.S. 137 (1970)................................................................................. 37
Reyn’s Pasta Bella, LLC v. Visa USA, Inc.

442 F.3d 741 (9th Cir. 2006) ................................................................... 17
Safeco Ins. Co. of Am. v. Guyton
692 F.2d 551 (9th Cir. 1982) ................................................................... 33
Sam Francis Found. v. Christies

784 F.3d 1320 (9th Cir. 2015) ..................................................... 38, 39, 40
Sarver v. Chartier
813 F.3d 891 (9th Cir. 2012) ................................................................... 35
Sidney v. Zah
718 F.2d 1453 (9th Cir. 1983) ................................................................. 20
Siegel v. Bradstreet
360 F. App’x 832 (9th Cir. Dec. 29, 2009) ............................................. 12
iv
(continued)
Page
Siegel v. Brown
No. 08-2480 CAS (SSx) (C.D. Cal. Apr. 15, 2008) .......................... 11, 24
Styers v. Ryan
811 F.3d 292 (9th Cir. 2015) ................................................................... 26
United Nurses Ass’ns of Cal. v. Nat’l Labor Relations Bd.
871 F.3d 767 (9th Cir. 2017) ............................................................. 35, 38
STATE CASES
Buchwald v. Katz
503 P.2d 1376 (Cal. 1972) ............................................................. 9, 20, 33
Buchwald v. Superior Court
254 Cal. App. 2d 347 (1967) ....................................................... 30, 31, 33
Golba v. Dick’s Sporting Goods, Inc.
238 Cal. App. 4th 1251 (2015) ................................................................ 29
Kashani v. Tsann Kuen China Enter. Co.

118 Cal. App. 4th 531 (2004) .................................................................. 28
Marathon Entm’t, Inc. v. Blasi
42 Cal. 4th 974 (2008) ...................................................................... passim
McIntosh v. Mills
121 Cal. App. 4th 333 (2004) .................................................................. 29
MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works

Co.
115 P.3d 41 (Cal. 2005) ........................................................................... 30
R.M. Sherman Co. v. W.R. Thomason, Inc.
191 Cal. App. 3d 559 (1987) ................................................................... 28
v
(continued)
Page
Styne v. Stevens
26 P.3d 343 (Cal. 2001) .................................................................... passim
Vitek v. Alvarado Ice Palace, Inc.
34 Cal. App. 3d 586 (1973) ............................................................... 30, 33
Wachs v. Curry
13 Cal. App. 4th 616 (1993) .................................................................... 27
Waisbren v. Peppercorn Prods., Inc.

41 Cal. App. 4th 246 (1995) ............................................................. passim
Yoo v. Robi
126 Cal. App. 4th 1089 (2005) .............................................. 20, 30, 31, 33
STATUTES
28 United States Code
§ 1291 .........................................................................................................4
§ 1331 .........................................................................................................3
§ 2201(a) .....................................................................................................3
§ 2202 .........................................................................................................3
California Business & Professions Code

§ 143 ........................................................................................................ 28
§ 6125 ...................................................................................................... 29
§ 6126 ...................................................................................................... 29
California Civil Code

§ 1550 ...................................................................................................... 28
§ 1596 ...................................................................................................... 28
§ 1598 ................................................................................................ 28, 31
§ 1599 ................................................................................................ 28, 31
§ 1608 ...................................................................................................... 28
§ 1667 ...................................................................................................... 28
§ 3513 ...................................................................................................... 28
vi
(continued)
Page
California Labor Code

§ 1700 ...................................................................................................... 24
§ 1700.4 ............................................................................................ passim
§ 1700.5 ............................................................................................ passim
§ 1700.6-1700.41 ........................................................................................8
§ 1700.44(a) ........................................................................................... 8, 9
§ 1700.46 ................................................................................................. 30
CONSTITUTIONAL PROVISIONS
United States Constitution, Article I, § 8, cl. 3 ......................................... 5, 36
COURT RULES
Ninth Circuit Rule 28-2.7 ................................................................................5
Federal Rules of Appellate Procedure
Rule 4(a)(1)(A) ...........................................................................................4
Federal Rules of Civil Procedure
Rule 12(b)(6) ........................................................................................... 15
Rule 12(c) ................................................................................................ 15
OTHER AUTHORITIES
1 B.E. Witkin, Summary of California Law Contracts (11th ed.
June 2018 update) .................................................................................... 28
Geoffrey C. Hazard, Jr., Preclusion as to Issues of Law: The
Legal System’s Interest, 70 Iowa L. Rev. 81 (1984) ............................... 19
Restatement (Second) of Judgments (1982)

§ 26(1)(d) ................................................................................................. 19
§ 28 .......................................................................................................... 19
vii
INTRODUCTION
This is a constitutional challenge to a professional licensing statute.
Since 1913, California has protected aspiring artists—those who want to
perform in the movies, television, radio, or on the stage—by requiring those
who profit from such artists’ efforts, as their talent agents, to be licensed and
regulated. In its current iteration, California’s Talent Agencies Act,
Cal. Lab. Code §§ 1700 et seq. (“TAA”), requires those who “procure”
“employment” for “artists” to obtain a license from California’s Labor
Commissioner (currently Julie A. Su). Under the TAA, artists may procure
employment for themselves, but anyone who represents them in their
dealings, for example with movie studios or television companies, must be
licensed. Plaintiff Rick Siegel, appearing pro se, is a “personal manager”
who has provided various services to artists but who is not licensed as a
“talent agent” in California. Siegel would like to procure employment for
artists and receive a commission for that procurement, but would prefer not
to be licensed as a talent agent. Rather than submit to licensure, Siegel has
sued, alleging that the TAA’s licensing requirement is unconstitutional
based on a variety of theories. The district court properly rejected all of
Siegel’s arguments and dismissed the complaint. The district court’s
judgment should be upheld.
1
The paramount goal of the TAA is to protect artists, and particularly
young artists, from exploitation by unscrupulous promoters who offer them
“a foot in the door,” only then to take a disproportionate share of earnings or
to arrange unsuitable professional engagements. To curb such abuses, the
TAA requires licensed “talent agencies” and “agents”1 to safeguard artists’
physical safety and financial interests. The Labor Commissioner oversees
talent agencies to ensure that they are complying with the TAA’s detailed
requirements.
Like other professional licensing statutes, the TAA prohibits unlicensed
work. Just as an unlicensed person is prohibited from practicing law, acting
as a general contractor, or acting as a real estate broker in California, so too
an unlicensed person is prohibited from “procuring” “employment” for
“artists.” The remedy for unlicensed procurement is the same as for other
unlicensed work in California: a contract made in violation of the licensing
statute is void. Just as an unlicensed general contractor is barred from
recovering for his or her unlicensed work, an unlicensed person who
procures employment for an artist cannot compel the artist to turn over a
commission on the artist’s earnings.
1
Though the TAA regulates “agencies,” licensed individuals are also
referred to as “agents.”
2
This is not Siegel’s first challenge to the TAA. In 2008, he filed a
complaint alleging that the TAA was unconstitutional. The district court
dismissed the complaint, a decision which this Court affirmed.
Ten years later, Siegel filed his complaint in this case. Portions of the
complaint are virtually identical to Siegel’s 2008 complaint. The same
district court dismissed Siegel’s complaint again. In granting the Labor
Commissioner’s motion for judgment on the pleadings, the district court
held that Siegel’s claims were barred by issue preclusion and claim
preclusion because they were brought or could have been brought in Siegel’s
2008 case. The district court also held that, even if Siegel’s claims were not
precluded, the complaint did not plausibly state a claim for relief because the
TAA is not unconstitutionally vague and does not violate the dormant
Commerce Clause. Because these rulings were correct, the Labor
Commissioner requests that the Court affirm the district court’s judgment.
JURISDICTIONAL STATEMENT
The district court had jurisdiction of this action under 28 U.S.C.
§ 1331, 28 U.S.C. §§ 2201(a) and 2202.
The district court dismissed the case in its entirety with prejudice.
3
4 ER-286. The district court entered judgment in favor of the Labor
Commissioner on March 27, 2018. SER-002. Its order was therefore final.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
Siegel filed his notice of appeal on April 25, 2018. 4 ER-326.
The appeal is timely under rule 4(a)(1)(A) of the Federal Rules of Appellate
Procedure.
STATEMENT OF ISSUES
1. Whether the district court properly determined that the complaint’s
vagueness claims were barred by issue preclusion, because these same
claims were raised and decided in Siegel’s 2008 case.
2. Whether the district court properly determined that, even if the
complaint’s vagueness claims were not precluded, the complaint failed to
plausibly allege that the TAA is unconstitutionally vague, because the TAA
uses commonly understood terms that courts have had no difficulty in
applying.
3. Whether the district court properly determined that the complaint’s
dormant Commerce Clause claims were barred by claim preclusion, because
these claims could have been, but were not, raised in Siegel’s 2008 case.
4. Whether the district court properly determined that, even if the
complaint’s dormant Commerce Clause claims were not precluded, the
4
complaint failed to plausibly allege that the TAA violates Article I, Section 8
(the Commerce Clause) of the United States Constitution, because the TAA
allows both in-state and out-of-state residents to obtain a talent agent license
in California and the TAA does not regulate extraterritorially.
STATEMENT REGARDING ADDENDUM

In accordance with Ninth Circuit Rule 28-2.7, the addendum to this
brief includes sections 1700.4 and 1700.5 of the California Labor Code.
STATEMENT OF THE CASE
I. CALIFORNIA’S TALENT AGENCIES ACT IS DESIGNED TO

PROTECT PERFORMERS
A. The History of the TAA
“In Hollywood, talent . . . is represented by two groups of people:
agents and managers.” Marathon Entm’t, Inc. v. Blasi (Marathon), 42 Cal.
4th 974, 980 (2008).2 Agents procure roles; they put artists on the screen, on
the stage, behind the camera. Id. Managers coordinate everything else; they
counsel and advise, take care of business arrangements, and chart the course
of an artist’s career. Id. The Talent Agencies Act requires that anyone who
acts as a talent agent be licensed.
2
Because the Westlaw version of Marathon does not include citations
to the Pacific Reporter (perhaps mistakenly), for the convenience of the
Court and parties, when relying on Marathon the Labor Commissioner will
cite to the California Reports.
5
“The Act’s roots extend back to 1913, when the [California]
Legislature passed the Private Employment Agencies Law and imposed the
first licensing requirements for employment agents.” Marathon, 42 Cal. 4th
at 984. From an early time, the Legislature was concerned that those
representing aspiring artists might take advantage of them, whether by
concealing conflicts of interests when agents split fees with the venues
where they booked their clients, or by sending clients to houses of ill-repute
under the guise of providing “employment opportunities.” Id. Exploitation
of artists by their representatives has remained the Act’s central concern
through subsequent incarnations up to the present day. Id.
B. The TAA Requires Talent Agencies to Be Licensed

“In its present incarnation, the Act requires anyone who solicits or
procures artistic engagement for artists to obtain a talent agency license.”
Marathon, 42 Cal. 4th at 985; see Cal. Lab. Code §§ 1700.5 (requiring
license), 1700.4 (defining “artist”), 1700.1-1700.3 (other definitions). A
“talent agency” is defined as “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.”3 Cal. Lab. Code
3
The Act exempts from licensure those who procure “recording
contracts” for artists. Cal. Lab. Code § 1700.4(a).
6
§ 1700.4(a). The TAA “regulates conduct, not labels; it is the act of
procuring (or soliciting), not the title of one’s business, that qualifies one as
a talent agency.” Marathon, 42 Cal. 4th at 986.
The TAA “establishes detailed requirements for how licensed talent
agencies conduct their business, including a code of conduct, submission of
contracts and fee schedules to the state, maintenance of a client trust
account, posting of a bond, and prohibitions against discrimination,
kickbacks, and certain conflicts of interest.” Marathon, 42 Cal. 4th at 985
(citing Cal. Lab. Code §§ 1700.23-1700.47).
No separate analogous licensing or regulatory scheme extends to
personal managers. Marathon, 42 Cal. 4th at 985. “In 1978, the Legislature
considered establishing a licensing scheme for personal managers,” but
abandoned the idea. Id. at 984. Because the TAA is “narrowly focused on
efforts to secure professional ‘employment or engagements’” for artists, it
does not regulate “other services for which artists often contract, such as
personal and career management (i.e. advice, direction, coordination, and
oversight with respect to an artist’s career or personal or financial affairs).”
Styne v. Stevens (Styne), 26 P.3d 343, 349 (Cal. 2001). Nor does it govern
assistance in an artist’s business transactions other than for professional
employment. Id.
7
Accordingly, the TAA has no effect on personal managers’ activities
unless and until they elect to “procure” “employment” for “artists.” Only to
the extent they engage in this specific activity must they be licensed as talent
agents. See Marathon, 42 Cal. 4th at 986 (“a personal manager who solicits
or procures employment for his artist-client is subject to and must abide by
the Act”); Cal. Lab. Code §§ 1700.5, 1700.4(a).
C. The TAA Is Enforced by the Labor Commissioner

The California Labor Commissioner issues licenses to prospective
talent agencies and oversees their compliance with the TAA’s requirements.
See Cal. Lab. Code §§ 1700.6-1700.41. While the Labor Commissioner
does not directly regulate personal managers, a personal manager may come
within her jurisdiction if the manager and an artist have a dispute regarding
whether the manager has “procured” “employment” for the artist without
being licensed as a talent agent. See Styne, 26 P.3d at 351-52; Cal. Lab.
Code § 1700.44(a).
The Commissioner’s authority is limited to hearing and determining the
TAA-related dispute between artist and manager, or else certifying that there
is no controversy. See Cal. Lab. Code § 1700.44(a). The TAA gives the
Commissioner “original and exclusive jurisdiction over issues” arising under
its provisions. Marathon, 42 Cal. 4th at 981 n.2 (citing Cal. Lab. Code
8
§ 1700.44(a)). But the Commissioner’s determinations are not final; either
party may appeal to the superior court within 10 days for a trial de novo.
See Cal. Lab. Code § 1700.44(a). While such a trial is de novo, the parties
can and do rely on evidence, testimony, and pleadings that were presented in
the Commissioner’s hearing. See Buchwald v. Katz, 503 P.2d 1376, 1380
(Cal. 1972); see also Marathon, 42 Cal. 4th at 982. If no trial is requested
(or is requested but the required bond is not posted), the prevailing party
may petition to confirm the Commissioner’s award and enforce the resulting
judgment. See Buchwald, 503 P.2d at 1380.
The fact pattern in Marathon (which involved Siegel) reflects a typical
dispute between an artist and a personal manager:
In Marathon, Siegel’s company Marathon, which was not licensed as a
talent agency, and the actor Rosa Blasi “entered into an oral contract for
Marathon to serve as Blasi’s personal manager.” Marathon,
42 Cal. 4th at 981. “Marathon was to counsel Blasi and promote her career;
in exchange, Blasi was to pay Marathon 15 percent of her earnings from
entertainment employment obtained during the course of the contract.” Id.
After Blasi appeared in a film and television series, she allegedly reneged on
her oral agreement by not remitting the full 15% of her earnings to
9
Marathon. Id. Marathon sued Blasi, “seeking to recover unpaid . . .
commissions.” Id.
“After obtaining a stay of the action, Blasi filed a petition with the
Labor Commissioner alleging that Marathon had violated the Act by
soliciting and procuring employment for Blasi without a talent agency
license.” Marathon, 42 Cal. 4th at 981. The Labor Commissioner
“[c]oncluded that one or more acts of solicitation and procurement by
Marathon violated the Act.” Id. at 981. As a remedy, the Labor
Commissioner “voided the parties’ contract ab initio and barred Marathon
from recovery.” Id. at 981.
Following Marathon’s appeal from the Labor Commissioner to the
superior court, the dispute eventually reached the California Supreme Court,
which (1) affirmed the propriety of voiding artist-manager contracts when a
personal manager has illegally procured employment for the artist; but
(2) held that personal managers could be entitled to recover for the non-
procurement services they lawfully provided to an artist. Marathon,
42 Cal. 4th at 986-98.
///
///
10
II. IN 2008, THE DISTRICT COURT DISMISSED SIEGEL’S CHALLENGE

TO THE CONSTITUTIONALITY OF THE TAA, A DECISION WHICH
THIS COURT AFFIRMED.
Shortly after the California Supreme Court issued its opinion in
Marathon, Siegel filed a lawsuit in the district court, challenging the
constitutionality of the TAA. See Siegel v. Brown, No. 08-2480 CAS (SSx)
(C.D. Cal. Apr. 15, 2008); SER-029. Among other claims, Siegel’s
complaint alleged that the TAA was unconstitutionally vague because
“There Is Uncertainty With Regard To Who Is Within The Scope Of The
Act,” SER-035; “There Is Uncertainty With Regard To What Conduct Is
Prohibited,” SER-036; and “There Is Uncertainty About the Punishment
That Should Be Imposed,” SER-032. After the Labor Commissioner filed a
motion to dismiss the complaint, on July 14, 2008, the district court granted
the motion with leave to amend. SER-061.
On July 25, 2008, Siegel filed a first amended complaint. SER-063.
Although framed as different causes of action, much of the content of the
first amended complaint mirrored the content of the initial complaint. SER-
067 to SER-068. After the Labor Commissioner filed a second motion to
dismiss, the district court dismissed the first amended complaint, this time
without leave to amend. SER-070, also available at 2008 WL 4195949. On
11
December 29, 2009, this Court affirmed the district court’s ruling in an
unpublished memorandum opinion. See Siegel v. Bradstreet,
360 F. App’x 832 (9th Cir. Dec. 29, 2009).
III. SIEGEL’S 2017 COMPLAINT AGAIN CHALLENGED THE

CONSTITUTIONALITY OF THE TAA
“After a decade away from the [personal manager] profession,” on July
24, 2017, Siegel filed the operative complaint in state court. 1 ER-2. The
Labor Commissioner filed an answer to the complaint and removed the case
to the district court. SER-104; SER-108. The district court determined that
the complaint was related to Siegel’s 2008 case and the case was reassigned
to District Judge Christina A. Snyder, who had presided over Siegel’s 2008
case. SER-103.
As in his 2008 complaint, Siegel alleged that the TAA is
unconstitutionally vague on its face and as-applied to him because it is
unclear “(1) who is being subjected to the regulation, (2) what activity is
being regulated, and (3) the consequences for ignoring the
limitations/prohibitions of the regulation.” 1 ER-3 [¶ 17]; see also id. ER-7
[¶¶ 29-31], ER-7 to ER-8 [¶¶ 31-33], ER-8 to ER-9 [¶¶ 34-41], ER-9 to ER-
10 [¶¶ 42-46], ER-11 [¶¶ 47-48], ER-11 to ER-12 [¶¶ 49-54.]. Siegel also
12
alleged that the TAA “violates the Interstate Commerce Clause of the U.S.
Constitution.” 1 ER-12.4
IV. THE DISTRICT COURT AGAIN DISMISSED SIEGEL’S COMPLAINT

Since the Labor Commissioner answered the complaint in state court,
she moved for judgment on the pleadings. 1 ER-18. Five days later, Siegel
moved for summary judgment. 2 ER-99. At a combined hearing on the
motions, the district court provided a tentative ruling to the parties. 3 ER-
246.
After hearing argument and taking the case under submission, the
district court issued a minute order granting the Labor Commissioner’s
motion for judgment on the pleadings and denying Siegel’s motion for
summary judgment. 4 ER-275. Specifically, the district court determined
that:
(1) issue preclusion barred the complaint’s vagueness claims,
4 ER-280 to ER-281;
(2) even if issue preclusion did not bar the complaint’s vagueness
claims, the TAA is not unconstitutionally vague, 4 ER-281 to ER-283;
4
The complaint contained two other causes of action that Siegel later
removed from the complaint. SER-101.
13
(3) claim preclusion barred the complaint’s dormant Commerce Clause
claims, 4 ER-284 to ER-285; and
(4) even if claim preclusion did not bar the complaint’s dormant
Commerce Clause claims, the TAA does not violate the dormant Commerce
Clause, 4 ER-285 to ER-286.
On March 27, the district court entered judgment in favor of the Labor
Commissioner. SER-001. That same day, Siegel filed a motion for
reconsideration, 4 ER-287, which the district court denied on April 25,
4 ER-322.
Also on April 25, Siegel timely filed a notice of appeal. 4 ER-326.
SUMMARY OF ARGUMENT
The district court correctly determined that the complaint is barred by
issue preclusion and claim preclusion. The district court also correctly
determined that, even if the complaint were not precluded, then as a matter
of law, the complaint fails to state a claim upon which relief can be granted.
The complaint’s vagueness claims are barred by issue preclusion
because in 2008 the same party (Siegel) raised the same claims before the
same court, and those claims were considered and decided.
Even if not barred by issue preclusion, the complaint’s vagueness
claims fail to state a claim upon which relief can be granted because the
14
TAA, as interpreted by the California courts, provides a constitutionally
sufficient standard.
The complaint’s dormant Commerce Clause claims are barred by claim
preclusion because they could have been, but were not, litigated in Siegel’s
earlier constitutional challenge.
Even if not barred by claim preclusion, the complaint’s dormant
Commerce Clause claims fail to state a claim upon which relief can be
granted because the TAA does not discriminate against interstate commerce,
substantially burden interstate commerce, or regulate outside the state.
ARGUMENT
I. STANDARD OF REVIEW
This Court reviews a district court’s grant of a motion for judgment on
the pleadings de novo. See Gregg v. Haw. Dep’t of Pub. Safety,
870 F.3d 883, 886-87 (9th Cir. 2017). “Because 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.” Id. at 887 (internal citations
and quotations omitted). The allegations of the complaint “must plausibly
suggest an entitlement to relief.” Id. “A judgment on the pleadings is
properly granted when, taking all the allegations in the pleadings as true, the
moving party is entitled to judgment as a matter of law.” Id.
15
This Court reviews a district court’s denial of a motion for summary
judgment de novo. See Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 777
(9th Cir. 2014) (en banc). The Court reviews a challenge to the
constitutionality of a statute de novo as well. Id.
II. THE DISTRICT COURT PROPERLY DISMISSED SIEGEL’S

VAGUENESS CLAIMS.
The district court correctly determined that the complaint’s vagueness
allegations failed to state a claim upon which relief could be granted.
4 ER-279 to ER-283.
A. Issue Preclusion Bars the Complaint’s Vagueness Claims

The district court correctly determined that issue preclusion barred
Siegel’s vagueness claims. 4 ER-280 to ER-281. Siegel seeks to relitigate
the same issues that he raised and that were decided by the same district
judge in 2008.
“Issue preclusion bars relitigation of issues adjudicated in an earlier
proceeding if three requirements are met: (1) the issue necessarily decided at
the previous proceeding is identical to the one which is sought to be
relitigated; (2) the first proceeding ended with a final judgment on the
merits; and (3) the party against whom collateral estoppel is asserted was a
16
party or in privity with a party at the first proceeding.” Reyn’s Pasta Bella,
LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir. 2006) (citation omitted).
It is undisputed that Siegel’s 2008 case ended with a final judgment on
the merits. SER-078; see 360 F. App’x 832. It is also undisputed that Siegel
and the Labor Commissioner were the same parties in the first proceeding.
SER-070 (prior Labor Commissioner sued in her official capacity); see
Appellant’s Opening Brief (AOB) at 5 (describing Siegel’s 2008 lawsuit as
against “Gov. Brown and Appellee for similar constitutional claims”).
It is even undisputed that the vagueness issues decided in the previous
proceeding are identical to the issues Siegel seeks to relitigate here. Siegel
candidly admits that he “sued the Labor Commissioner in 2008, making
many of the same claims.” AOB at 9; see also AOB at 14 (noting “the 2008
ruling on these same issues with the same parties . . .”); 4 ER-280 (“Siegel
does not dispute that he is seeking to re-litigate these issues.”). Specifically,
the complaint makes three claims related to vagueness that were raised and
decided in Siegel’s 2008 lawsuit:
First, the complaint alleges that the TAA is unconstitutionally vague
because it is unclear “(1) who is being subjected to the regulation.” 1 ER-3
(¶ 17); see id. ER-4 to ER-5 (¶¶ 18-22), ER-7 to ER-8 (¶¶ 29-33). Siegel
raised this claim in 2008. SER-030 (¶ 6: “(1) what persons are affected by
17
the law”); SER-052 (“Siegel alleges that it is not clear who is subject to the
TAA.”). And this claim was decided in 2008. SER-048 (describing TAA);
SER-075 to SER-076 (rejecting Siegel’s claim).
Second, the complaint alleges that the TAA is unconstitutionally vague
because it is unclear “(2) what activity is being regulated.” 1 ER-3 (¶ 17);
see also ER-5 (¶ 23), ER-8 to ER-10 (¶¶ 34-46). Siegel raised this claim in
2008. SER-030 (¶ 6: “what conduct is considered to be unlawful”); SER-
036 to SER-037; SER-053 (“Siegel also alleges that because the TAA does
not define the term ‘procurement,’ it does not provide fair warning of the
prohibited conducted [sic].”). And this claim was decided in 2008. SER-
059 (“Nor cannot [sic] it be said that the TAA failed to put Siegel, a person,
on notice that the TAA would apply to him . . .”).
Third, the complaint alleges that the TAA is unconstitutionally vague
because it is unclear what are “(3) the consequences for ignoring the
limitations/prohibitions of the regulation.” 1 ER-3 (¶ 17); see also ER-5
(¶ 24), ER-11 to ER-12 (¶¶ 47-54). Siegel raised this claim in 2008.
SER-030 (¶ 6: “uncertainty as to what, if any penalties should be imposed
for those found to have violated the Act.”); SER-053 (“Siegel attacks the
application of the TAA because the statute does not give notice of the
penalty for engaging in prohibited conduct.”). And this claim was decided
18
in 2008. SER-060 (rejecting argument); SER-075 to SER-076 (recognizing
rejection of argument).
Because all three requirements for issue preclusion are satisfied here,
the district court’s judgment should be affirmed. 4 ER-280 to ER-281.
Siegel argues that an exception to the doctrine of issue preclusion
applies. See AOB at 34. Siegel relies on a law review article and the
Restatement of Judgments, which describes a potential exception to the
general rule of claim preclusion when:
(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 . . . .
Restatement (Second) of Judgments § 26(1)(d) (1982).
This exception is not relevant here. It is an exception to the general
rule of claim preclusion, not to issue preclusion. See Geoffrey C. Hazard,
Jr., Preclusion as to Issues of Law: The Legal System’s Interest, 70 Iowa L.
Rev. 81, 83-84 (1984); cf. Restatement (Second) of Judgments § 28 (1982)
(“Exceptions to the General Rule of Issue Preclusion”).5 And even if this
5
In the district court, Siegel relied on other sections of the
Restatement that were relevant to the issue of issue preclusion. 4 ER-280.
On appeal, he has not renewed these arguments and has therefore waived
19
exception to the general rule of claim preclusion had any relevance to the
question of issue preclusion, such an exception is “narrow.” Sidney v. Zah,
718 F.2d 1453, 1459 (9th Cir. 1983). Siegel does not explain how the 2008
judgment is “inconsistent with the fair and equitable implementation of” the
Constitution or the TAA; he simply disagrees with it. But the paramount
goal of the TAA is to protect artists from exploitation, not to protect the
profits of personal managers who stray into the role of an agency without
obtaining a license. Marathon, 42 Cal. 4th at 984; see also Yoo v. Robi, 126
Cal. App. 4th 1089, 1104 (2005) (“The public policy of the Act” is “to deter
personal managers from engaging in illegal activities.”). Nor has Siegel
identified any change in circumstances—intervening constitutional
interpretation, new statutory authority, or anything else—that would justify
not applying issue or claim preclusion based on the 2008 judgment.
The only change in circumstances proffered by Siegel is his legal
argument that a California case from 1967 (Buchwald) is inconsistent with
California cases from 1914 (Wood), 1920 (Smith), 1947 (Severance) and
1949 (Loving). See AOB at 34. As the district court recognized, this legal
any claim on appeal concerning them. See United Nurses Ass’ns of Cal. v.
Nat’l Labor Relations Bd., 871 F.3d 767, 780 (9th Cir. 2017).
20
argument could just as easily have been made in 2008 and is not a valid
reason to deny preclusive effect to the 2008 judgment. 4 ER-280.
B. The TAA Is Not Unconstitutionally Vague

Although the district court determined that the complaint’s vagueness
claims were issue-precluded, the district court also correctly ruled that even
if the vagueness claims were not barred by issue preclusion, they failed as a
matter of law. 4 ER-281.
The critical error in all of Siegel’s vagueness arguments is that, in an
attempt to sidestep the line of governing California cases construing the
TAA, Siegel urges the Court instead to conduct its own de novo
interpretation of California law, focusing only on the text of the statute and
authorities that have nothing to do with the TAA. The flaw in this approach
is that the Court is not free to substitute its interpretation of California law
for that of the California courts. Instead, the proper inquiry is for the Court
to take the California courts’ understanding of the TAA and then assess
whether the law as so interpreted is constitutional. It undoubtedly is, as the
district court correctly determined.
1. Legal Standard for Vagueness Claims

“It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.” Grayned v. City of
21
Rockford, 408 U.S. 104, 108 (1972). Though facial and as-applied
challenges “differ in the extent to which the invalidity of a statute need be
demonstrated,” Legal Aid Servs. of Or. v. Legal Servs. Corp., 608 F.3d 1084,
1096 (9th Cir. 2010), the “substantive legal tests used in the two challenges
are ‘invariant,’” Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011)
(quoting Legal Aid Servs. of Or., 608 F.3d at 1096). “To determine whether
a statute is unconstitutionally vague as applied, a two-part test is used: a
court must first determine whether the statute gives the person of ordinary
intelligence a reasonable opportunity to know what is prohibited and then
consider whether the law provides explicit standards for those who apply it.”
Pest Comm. v. Miller, 626 F.3d 1097, 1111 (9th Cir. 2010); see Hill v.
Colorado, 530 U.S. 703, 733 (2000) (applying same standard in facial
challenge).
In applying this standard, “perfect clarity and precise guidance have
never been required” of a statute. Pickup v. Brown, 740 F.3d 1208, 1233, as
amended on denial of petition for reh’g (9th Cir. 2014) (citation omitted),
abrogated on other grounds by Nat’l Inst. of Family & Life Advocates v.
Becerra, 138 S. Ct. 2361 (2018). “While there is little doubt that
imagination can conjure up hypothetical cases in which the meaning of [ ]
terms will be in nice question, because we are condemned to the use of

22
words, we can never expect mathematical certainty from our language.”
Hill, 530 U.S. at 733 (citations and quotations omitted).
The complaint alleges that the TAA is unconstitutionally vague because
it is unclear “(1) who is being subjected to the regulation, (2) what activity is
being regulated, and (3) the consequences for ignoring the
limitations/prohibitions of the regulation.” 1 ER-3 (¶ 17); see also AOB at 8
(similar formulation). But as explained below, the meaning of the scope of
the TAA is well-understood and has been consistently applied by courts for
decades.
2. It Is Clear Who Is Subject to Regulation Under the

TAA
First, Siegel alleges that the TAA is unconstitutionally vague because
“it is impossible for an ordinary person to ascertain whether the [TAA]
regulates only those who hold themselves out as title-holders of the specialty
of talent agent, or whether the Act . . . incorporates anyone regardless of
claimed occupation, who engages in the defined activities of the talent
agency.” 1 ER-7; see also AOB at 1 (“The TAA has no written statute that
reserves any activity for licensees . . .”), 8 (“[T]he TAA has no provision
either prohibiting non-licensees from helping artists procure employment or
expressly reserving that activity for licensees.”), 23-30.
23
Siegel first made a variant of this argument to the California Supreme
Court in 2008, when he argued that the Labor Commissioner lacked
authority to regulate non-licensed personal managers because the TAA was
intended to regulate only talent agencies, and no one else. See Marathon, 42
Cal. 4th at 986. The California Supreme Court rejected this argument:
The Act establishes its scope through a functional, not a

titular definition. It regulates conduct, not labels. It is
the act of procuring (or soliciting), not the title of one’s
business, that qualifies one as a talent agency and
subjects one to the Act’s licensure and related
requirements. (§ 1700.4, subd. (a).) Any person who
procures employment—any individual, any corporation,
any manager—is a talent agency subject to regulation.
(§§ 1700, 1700.4, subd. (a).) Consequently, as the
Courts of Appeal have unanimously held, a personal
manager who solicits or procures employment for his
artist-client is subject to and must abide by the Act.
Id.
Under California law, it is clear who is regulated by the TAA and who
is not. Personal managers, or anyone else, are not regulated by the TAA
unless and until they elect to “procure” “employment” for “artists. Only to
the extent they engage in this specific activity must they be licensed as talent
agents. See Marathon, 42 Cal. 4th at 986 (explaining that “a personal
manager who solicits or procures employment for his artist-client is subject
to and must abide by the Act”); Cal. Lab. Code §§ 1700.5, 1700.4(a); see
24
also Lauwrier v. Garcia, No. 12-07381 MMM (SHx) (C.D. Cal. Mar. 8,
2013), 2013 WL 11238497, *6 (relying on Siegel). The TAA does not
regulate “other services for which artists often contract, such as personal and
career management (i.e. advice, direction, coordination, and oversight with
respect to an artist’s career or personal or financial affairs).” Styne, 26 P.3d
at 349. Nor does it govern assistance in an artist’s business transactions
other than professional employment. Id. Accordingly, the TAA has no
effect on personal managers’ activities until they engage in prohibited
conduct without a license. See Cal. Lab. Code §§ 1700.5 (prohibiting
unlicensed work), 1700.4 (defining what specific activities are prohibited).
As the district court recognized in 2008 and again in 2018, far from being
unconstitutionally vague, the TAA’s scope is clear. 4 ER-281 to ER-282;
see also SER-048; SER-075 to SER-076 (rejecting Siegel’s claim).
In response, Siegel baldly states that “[t]his 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.” AOB at 23. But that was precisely the question decided by
the California Supreme Court in Marathon, which held that personal
managers “remain exempt from regulation insofar as they do those things
that personal managers do, but they are regulated under the Act to the extent
25
they stray into doing the things that make one a talent agency under the
Act.” Marathon, 42 Cal. 4th at 989.
Though Siegel urges the Court to conduct its own de novo review of
California law, see AOB at 23-32, the Court is “constrained to defer to the
highest state court on a matter of state law and may not construe [state law]
differently than did the [state] Supreme Court.” Styers v. Ryan,
811 F.3d 292, 297 n.5 (9th Cir. 2015). Marathon and Styne make clear that,
as a matter of California law, the TAA “establishes its scope through a
functional, not a titular, definition.” Marathon, 42 Cal. 4th at 986.
Regardless of one’s title or self-designation, if one procures employment for
an artist without a talent agent license, one is violating the TAA. If one
provides other services to an artist, one is not violating the TAA. There is
nothing vague about this clear, definitive interpretation of state law.
3. It Is Clear What Activity Is Regulated by the TAA

Second, the complaint alleges that the TAA is unconstitutionally vague
because it is not clear what the term “procuring . . . employment” means.
1 ER-3; id. ER-5 (¶ 23), ER-8 to ER-10 (¶¶ 34-46); see Cal. Lab. Code
§ 1700.4. As it had in 2008, here the district court correctly held that the
term “procuring . . . employment” is not unconstitutionally vague. 4 ER-
26
282; see also SER-059 (“Nor cannot [sic] it be said that the TAA failed to
put Siegel, a person, on notice that the TAA would apply to him . . . .”).
Although Siegel refers in passing to this aspect of his vagueness
argument, see AOB at 11 (contending that the term “‘procure employment’
is still undefined”), he never distinctly argues that the district court erred on
this ground, and he therefore appears to have abandoned this specific claim
on appeal. See, e.g., AOB at 3 (not listed in statement of issues), 13-14
(same); see also AOB at 30 (not disputing that “the terms ‘procure’ and
‘employment’ are easily understood”). In any event, “procure . . .
employment” is a commonly understood phrase that has been consistently
interpreted by the courts for decades. See, e.g., Nat’l Conference of Pers.
Managers v. Brown, No. 12-09620 DDP (RZX) (C.D. Cal. Aug. 13, 2015),
2015 WL 4873541, *6-7, aff’d, 690 F. App’x 461 (9th Cir. Apr. 25, 2017)
(same phrase not unconstitutionally vague); Wachs v. Curry,
13 Cal. App. 4th 616, 626 (1993), abrogated on other grounds as recognized
in Marathon, 42 Cal. 4th at 987 (same phrase not unconstitutionally vague).
Accordingly, the district court’s judgment on this issue should be affirmed.
///
///
27
4. It Is Clear What the Consequences Are for Violating

the TAA
Finally, the complaint alleges that the TAA is unconstitutionally vague
because it is unclear what are “(3) the consequences for ignoring the
limitations/prohibitions of the regulation.” 1 ER-3; see ER-5 (¶ 24), ER-11
to ER-12 (¶¶ 47-54). According to Siegel, because the TAA on its face does
not inform unlicensed individuals that their illegal contracts will be
unenforceable, it is unconstitutionally vague. See AOB at 3, 9, 14-22. The
district court also correctly rejected this argument. 4 ER-282 to ER-283.
As the district court recognized, under California law, the general rule
is that “where a statute prohibits or penalizes certain conduct, the courts will
infer a prohibition of contracts based on such conduct.” R.M. Sherman Co.
v. W.R. Thomason, Inc., 191 Cal. App. 3d 559, 565 (1987); see Cal. Civ.
Code §§ 1550, 1596, 1598, 1599, 1608, 1667, 3513; 1 B.E. Witkin,
Summary of California Law Contracts §§ 432, 487 et seq. (11th ed. June
2018 update); cf. Cal. Bus. & Prof. Code § 143. That illegal contracts may
be void has been the law in California since at least 1872. See Cal. Civ.
Code § 1598; cf. Kashani v. Tsann Kuen China Enter. Co., 118 Cal. App.
4th 531, 540-43 (2004) (survey of contract illegality). This general remedy
of contract voidness is independent of any other criminal or civil penalty that
28
might be found in a specific statutory scheme. See Waisbren v. Peppercorn
Prods., Inc., 41 Cal. App. 4th 246, 261 (1995) (“Nothing in the case law
requires the existence of criminal penalties as a prerequisite to declaring an
illegal contract to be void.”).
This rule has been applied generally in the context of professional
licensing. It is not a mystery that a contract related to a licensee’s illegal
conduct may be void, even if any given licensing statute does not
specifically say so. For example, if an unlicensed attorney were to look at
the text of California Business and Professions Code sections 6125 and
6126, which prohibit the unauthorized practice of law, they would not see
statutory text informing them that they might not be compensated for their
unlawful work. Yet there is no question that contracts to unlawfully practice
law are void. See Golba v. Dick’s Sporting Goods, Inc., 238 Cal. App. 4th
1251, 1261 (2015); see also McIntosh v. Mills, 121 Cal. App. 4th 333, 343-
44 (2004) (illegal fee-sharing agreement).
This rule has also been consistently applied in the specific context of
the TAA: “[A]n unlicensed person’s contract with an artist to provide the
services of a talent agency is illegal and void.” Styne, 26 P.3d at 349; see id.
at 352 (“[T]he Commissioner may declare the contract void . . . .”);
Marathon, 42 Cal. 4th at 992 n.11 (approving Styne), 994 (“the Labor
29
Commissioner has the ‘power’ to void contracts . . . .”); Yoo, 126 Cal. App.
4th at 1103 (“California courts have uniformly held that a contract . . . is
void ab initio”); Waisbren, 41 Cal. App. 4th at 261; Buchwald v. Superior
Court, 254 Cal. App. 2d 347, 351 (1967). For at least the last fifty years, it
thus has been clear what the sanction is for violating the TAA.
The general rule of contract voidness is subject to exceptions. See MW
Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., 115 P.3d 41,
55 (Cal. 2005). The determination whether a contract should be voided
requires a case-by-case analysis of legislative intent “to find out whether the
makers meant a contract in contravention of it should be void.” Vitek v.
Alvarado Ice Palace, Inc., 34 Cal. App. 3d 586, 591-92 (1973).
As relevant here, California courts have consistently concluded that the
intention of the California Legislature was for contracts between artists and
unlicensed managers to be illegal and void. For example, in Waisbren, the
court confronted one of the arguments that Siegel raised in the district court:
“Waisbren nevertheless contends that declaring the parties’ agreement to be
void is too severe a penalty, especially in light of the fact that the Act does
not contain criminal penalties for licensing violations.” Waisbren, 41 Cal.
App. 4th at 261. The court disagreed. It noted that predecessors to the TAA
had a criminal sanction, but the Legislature removed it because it believed

30
that the sanction of contract voidness was the proper remedy for a violation
of the TAA. See Waisbren, 41 Cal. App. 4th at 261-62; SER-017, SER-022
(enactment and repeal of former California Labor Code section 1700.46). In
this way, the Legislature “approved the remedy of declaring agreements void
if they violate the Act. Thus, an agreement that violates the licensing
requirement is illegal and unenforceable despite the lack of criminal
sanctions.” Waisbren, 41 Cal. App. 4th at 262; see Yoo, 126 Cal. App. 4th at
1104 (same).
Similarly, in Marathon, the California Supreme Court noted the
absence of a specific remedy in the text of the TAA. Marathon, 42 Cal. 4th
at 991. But instead of concluding that no remedy existed (as Siegel urges), it
read the TAA and its legislative history in conjunction with California’s
general contract law, “giv[ing] effect to both.” Id. (discussing Civil Code
sections 1598 and 1599). It reiterated that “an unlicensed person’s
contract . . . is illegal and void”—the long-standing position of California
courts based on the general rule described above. Id. at 992 n.11 (citing
Styne), 994 (explaining that “the Labor Commissioner has the ‘power’ to
void contracts”); see also Styne, 26 P.3d at 349; id. at 352; Yoo, 126 Cal.
App. 4th at 1103; Waisbren, 41 Cal. App. 4th at 261; Buchwald, 254 Cal.
App. 2d at 351.
31
Applying general contract principles “fully to disputes under the Act,”
the California Supreme Court then determined that a contract between an
unlicensed person and an artist could be severed between its lawful portion
and its unlawful portion. Marathon, 42 Cal. 4th at 996.
Thus, as interpreted by the California courts, the remedy for violating
the TAA is clear and not unconstitutionally vague; an unlicensed person may
procure employment for an artist, but they do so knowing that they may not
be compensated for their illegal procurement.
In response, Siegel raises several arguments that the district court
rejected below:
First, Siegel characterizes Marathon’s and Styne’s voidness rulings as
“dicta.” AOB at 17-18; see Styne, 26 P.3d at 349 (“[A]n unlicensed person’s
contract with an artist to provide the services of a talent agency is illegal and
void.”); see id. at 352 (“[T]he Commissioner may declare the contract
void . . . .”). While the Marathon court characterized the language in Styne
as dicta, it did so favorably, and it then relied on the language as a baseline
for its own analysis of whether the legal portions of a contract could be
severed from the illegal portions—the case’s central holding. See Marathon,
42 Cal. 4th at 992 n.11. Indeed, just a few pages later, the Marathon court
32
affirmatively reiterated “what all parties recognize—that the Labor
Commissioner has the ‘power’ to void contracts.” Id. at 994.
What may have been dicta in Styne was not dicta in Marathon. Not one
but two California Supreme Court decisions, in addition to relevant
California appellate court opinions, have made clear that voiding the illegal
contract is the California Legislature’s intended remedy for violations of the
TAA. See also Yoo, 126 Cal. App. 4th at 1103; Waisbren, 41 Cal. App. 4th
at 261; Buchwald, 254 Cal. App. 2d at 351.
Next, Siegel urges the Court to disregard all cases interpreting the TAA
in the last 50 years—ranging from Buchwald in 1967 to Marathon in 2008—
because they allegedly are inconsistent with California cases decided
between 1914 and 1954. See AOB at 15 (contending that “Buchwald is bad
law”). But none of these other cases involved the TAA or any of its
predecessor statutes. See id. Different licensing schemes have different
aims, and ascertaining the legislative intent of any given scheme requires a
case-by-case inquiry. See Vitek, 34 Cal. App. 3d at 591-92. Despite
Siegel’s invitation to do so, the Court cannot simply ignore the relevant
TAA precedents, all of which have stated the remedy for violating the TAA
with great clarity. Additionally, even if there were a conflict between these
earlier state-court cases and the line of TAA cases starting with Buchwald
33
(1967) and ending with Marathon (2008), the Court “must follow the most
recent decisions of the highest court of the state,” i.e., Marathon and Styne—
in interpreting state law. Safeco Ins. Co. of Am. v. Guyton, 692 F.2d 551,
554 n.2 (9th Cir. 1982). 6 California courts have determined that the clear
intention of the California Legislature was for contracts between artists and
unlicensed managers to be illegal and void, and that intention has been
universally recognized for at least 50 years. The TAA is not
unconstitutionally vague.
For all of these reasons, Siegel’s vagueness claims fail, and the Court
should affirm the judgment of the district court.
III. THE DISTRICT COURT PROPERLY DISMISSED SIEGEL’S

DORMANT COMMERCE CLAUSE CLAIMS.
The district court correctly determined that the complaint’s dormant
Commerce Clause allegations must be dismissed as a matter of law.
4 ER-284 to ER-286.
Although Siegel identifies the district court’s dormant Commerce
Clause ruling as one the issues presented in his appeal, see AOB at 3, he
6
Although the Court need not reach the issue here, the Labor
Commissioner also explained in the district court why there was no actual
conflict between these older cases and the relevant TAA cases. 3 ER-218 to
ER-221.
34
addresses it only in passing. See AOB at 9, 12-13, 35. Siegel has waived
this argument by failing to adequately brief it, and the Court should not
consider it. See United Nurses Ass’ns of Cal. v. Nat’l Labor Relations Bd.,
871 F.3d 767, 780 (9th Cir. 2017). However, out of an abundance of
caution, the Labor Commissioner will also explain why the district court’s
ruling was correct.
A. The District Court Correctly Determined that Siegel’s

Dormant Commerce Claims Were Barred by Claim
Preclusion
The district court first determined that Siegel’s dormant Commerce
Clause claims were claim-precluded because Siegel could have raised, but
did not raise, these claims in his 2008 lawsuit. 4 ER-284 to ER-285 (citing
Turtle Island Island Restoration Network v. U.S. Dep’t of State, 673 F.3d
914, 918 (9th Cir. 2012)). Because Siegel “failed in his opening brief to
argue any error” concerning this determination, the district court’s ruling can
be affirmed on this basis alone. Sarver v. Chartier, 813 F.3d 891, 906 n.10
(9th Cir. 2016).
///
///
35
B. The District Court Correctly Determined that Even if

Siegel’s Dormant Commerce Claims Were Not Barred by
Claim Preclusion, the TAA Does Not Violate the
Dormant Commerce Clause
Although the district court determined that Siegel’s dormant Commerce
Clause claims were claim-precluded, in the alternative, it also determined
that the Labor Commissioner was entitled to judgment on the pleadings on
the complaint’s dormant Commerce Clause claims. 4 ER-285. This ruling
was correct.
1. Legal Standard for Dormant Commerce Clause

Claims
The Commerce Clause includes an implied limitation on the states’
authority to adopt legislation that affects interstate commerce. This implied
limitation is often referred to as the negative or dormant Commerce Clause.
See Healy v. Beer Inst., 491 U.S. 324, 326 n.1 (1989); U.S. Const. art. I, § 8,
cl. 3. “Modern dormant Commerce Clause jurisprudence primarily is driven
by concern about economic protectionism – that is, regulatory measures
designed to benefit in-state economic interests by burdening out-of-state
competitors.” Nat’l Ass’n of Optometrists & Opticians v. Harris,
682 F.3d 1144, 1148 (9th Cir. 2012) (quotation omitted).
Courts apply a two-tiered analysis to dormant Commerce Clause
claims. Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S.
36
573, 578-79 (1986). First, a statute that directly regulates or discriminates
against interstate commerce, or that favors in-state economic interests over
out-of-state interests, is generally invalid per se. Id. at 579. Most
regulations found to conflict with the dormant Commerce Clause are found
to discriminate in one of these ways. See Nat’l Ass’n of Optometrists &
Opticians, 682 F.3d at 1148.
Second, although a statute that regulates evenhandedly and has only
indirect effects on interstate commerce generally does not offend the
dormant Commerce Clause, in a limited class of these cases the Supreme
Court has applied the “Pike test,” in which it examines “whether the State’s
interest is legitimate and whether the burden on interstate commerce clearly
exceeds the local benefits.” Brown-Forman Distillers Corp., 476 U.S. at
579 (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
The district court held that the TAA did not discriminate against
interstate commerce because, like any other licensing regime, “talent agency
licenses are available on equal terms to both residents and nonresidents.”
4 ER-285.
On appeal, Siegel does not contend that the TAA is discriminatory. See
AOB at 12-13. Instead, Siegel appears to argue only that the TAA
unlawfully applies extraterritorially, that is, that the TAA unlawfully

37
regulates out-of-state conduct. See AOB at 12-13 (citing Sam Francis
Found. v. Christies, 784 F.3d 1320 (9th Cir. 2015).7 The district court
rightly rejected this argument. 4 ER-285 to ER-286.
2. The TAA Does Not Operate Extraterritorially

A statute may violate the dormant Commerce Clause if it “facially
regulates a commercial transaction that takes place wholly outside of the
State’s borders.” Sam Francis Found., 784 F.3d at 1323-24. Like other
state licensing statutes, the TAA regulates only conduct—specifically, the
“engag[ing] in or carry[ing] on the occupation of a talent agency”—that has
some connection to California, not transactions that occur wholly outside of
California’s borders. Cal. Lab. Code § 1700.5.
To the extent that the TAA regulates out-of-state residents who engage
in procurement within California, “even when state law has significant
extraterritorial effects, it passes Commerce Clause muster when . . . those
effects result from the regulation of in-state conduct.” Chinatown
7
The district court also found that the TAA does not impose any
significant burden on interstate commerce. 4 ER-286. In a single cryptic
sentence, Siegel cites Pike and states in a conclusory manner that the district
court erred. See AOB at 12 (citing Pike, 397 U.S. at 145). Because Siegel
provides no meaningful argument, he has waived any claim that the TAA
unlawfully burdens interstate commerce. See United Nurses Ass’ns of Cal.,
871 F.3d at 780.
38
Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1145 (9th Cir. 2015)
(citations omitted). “[T]here is nothing unusual or unconstitutional per se
about a state or county regulating the in-state conduct of an out-of-state
entity when the out-of-state entity chooses to engage the state or county
through interstate commerce.” Pharm. Research & Mfrs. of Am. v. Cnty. of
Alameda, 768 F.3d 1037, 1043-44 (9th Cir. 2014). Just as California can
regulate sellers of shark fins (Chinatown Neighborhood Ass’n), sellers of
foie gras (Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729
F.3d 937, 949 (9th Cir. 2013)), and prescription drug manufacturers (County
of Alameda) who elect to engage in business in California, California can
regulate individuals who engage in the business of talent agencies in
California.
Likewise, to the extent the TAA regulates California personal managers
who engage in the procurement of employment for artists (even if some
aspects of the transaction occur outside California), such regulation is
permissible because “a state may regulate commercial relationships ‘in
which at least one party is located in California.’” Chinatown Neighborhood
Ass’n, 794 F.3d at 1145 (citing Gravquick A/S v. Trimble Navigation Intern.
Ltd., 323 F.3d 1219, 1224 (9th Cir. 2003)).
39
Sam Francis is readily distinguishable. In that case, the statute on its
face “regulate[d] a commercial transaction that [took] place wholly outside
of the State’s borders.” Sam Francis, 784 F.3d at 1323-24. The TAA, on its
face, does no such thing. See Cal. Lab. Code, §§ 1700.4, 1700.5. It
regulates the conduct of personal managers within California, not just their
residency in California. Contra Sam Francis, 784 F.3d at 1323 (stating that
the transactions had “no necessary connection with the state other than the
residency of the seller”).
Moreover, as demonstrated in the district court, the TAA has not been
applied in a way that would run afoul of the extraterritoriality principles
articulated in Sam Francis. The Labor Commissioner has consistently
examined parties’ contacts with California before exercising jurisdiction
over a TAA dispute. Where sufficient contacts exist, the Labor
Commissioner will hear the dispute. See, e.g., SER-087 (Breuer v. Top
Draw Entm’t, Inc.). But where sufficient contacts do not exist, the Labor
Commissioner will not hear the dispute. See, e.g., SER-080 (James v.
Thompson Mgmt.).
For example, in James, a Pennsylvania personal manager, who was not
licensed as a talent agent in California, and an actor signed a management
agreement under which the actor (James) agreed to pay his manager a 15%
40
commission on his gross earnings. SER-081. The personal manager
successfully obtained a television role for James in New York. Id. After
James moved to California, he petitioned the Labor Commissioner to void
the contract. SER-081 to SER-082.
Even though James was a California resident when he filed the petition,
the Labor Commissioner declined to void the contract because it lacked
jurisdiction over the personal manager. The Labor Commissioner found no
showing that the personal manager had “business interest or relations with
California or that it conduct[ed] business in California on a regular and
continual basis.” SER-082. “Nor was there evidence that” the manager
“came out to California for the purpose of submitting petitioner to casting
calls or other employment or engagements.” Id. Rather, the only possible
connection to California was that “on one occasion,” the personal manager
used a telephone or facsimile to attempt to procure work for the actor in
California. SER-082. The Labor Commissioner found that this isolated
incident was not enough conduct in California to subject the personal
manager to California’s jurisdiction. SER-083 to SER-084. Therefore, it
refused to void the personal management contract. SER-085.
As James illustrates, because the TAA does not “attempt to regulate
transactions conducted wholly out of state” or require other states “to adopt
41
California standards,” it is not an “impermissible direct regulation of
extraterritorial conduct.” Chinatown Neighborhood Ass’n, 794 F.3d at 1146.
Only transactions with a clear connection to California will fall within the
Labor Commissioner’s jurisdiction.
CONCLUSION
For the foregoing reasons, the Labor Commissioner respectfully
requests that the Court affirm the judgment of the district court.
Dated: October 12, 2018 Respectfully submitted,
XAVIER BECERRA
Attorney General of California
THOMAS S. PATTERSON
Senior Assistant Attorney General
BENJAMIN M. GLICKMAN
Supervising Deputy Attorney General
/s/ John W. Killeen

JOHN W. KILLEEN
Deputy Attorney General
Attorneys for California Labor
Commissioner Julie A. Su
SA2018101281
13176138_4.docx
42
18-55569
RICK SIEGEL,
v.
JULIE A. SU,
Defendant-Appellee.
STATEMENT OF RELATED CASES

This case is related to Siegel v. Bradstreet (No. 08-56991), which the Court
disposed of by unpublished memorandum on December 29, 2009. See 360 F.
App’x 832 (9th Cir. Dec. 29, 2009). Siegel v. Bradstreet involved the same parties
and some of the same claims raised by Appellant in this case.
Dated: October 12, 2018 Respectfully Submitted,
XAVIER BECERRA
Attorney General of California
/s/ John W. Killeen
JOHN W. KILLEEN
Deputy Attorney General
Attorneys for California Labor Commissioner
Julie A. Su
43
18-55569
RICK SIEGEL,
v.
JULIE A. SU,
Defendant-Appellee.
ADDENDUM TO APPELLEE’S ANSWERING BRIEF
Cal. Lab. Code § 1700.4. Talent Agency and Artists defined
(a) “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, except that the activities of procuring,
offering, or promising to procure recording contracts for an artist or artists shall not
of itself subject a person or corporation to regulation and licensing under this
chapter. Talent agencies may, in addition, counsel or direct artists in the
development of their professional careers.
(b) “Artists” means actors and actresses rendering services on the legitimate
stage and in the production of motion pictures, radio artists, musical artists,
musical organizations, directors of legitimate stage, motion picture and radio
productions, musical directors, writers, cinematographers, composers, lyricists,
arrangers, models, and other artists and persons rendering professional services in
motion picture, theatrical, radio, television and other entertainment enterprises.
///
44
Cal. Lab. Code § 1700.5. Necessity of talent agency license; posting an

advertisement; renewal of prior licenses
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
license shall be posted in a conspicuous place in the office of the licensee. The
license number shall be referred to in any advertisement for the purpose of the
solicitation of talent for the talent agency.
Licenses issued for talent agencies prior to the effective date of this chapter
shall not be invalidated thereby, but renewals of those licenses shall be obtained in
the manner prescribed by this chapter.
45
Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-l(f),
29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 18-55569
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief
I certify that (check appropriate option):
D This brief complies with the length limits permitted by Ninth Circuit Rule 28.1-1.
The brief is words or I pages, excluding the portions exempted by Fed. R. App. P.
I
32(±), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
lg] This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.
The brief isl 8.511 [words or I pages, excluding the portions exempted by Fed. R. App. P.
I
32(±), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
D This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
The brief is I [words or I pages, excluding the portions exempted by Fed. R. App. P.
I
32(±), if applicable, and is filed by (1) D separately represented parties; (2) D a party or parties filing a
single brief in response to multiple briefs; or (3) D a party or parties filing a single brief in response to a
longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.
32(a)(5) and (6).
D This brief complies with the longer length limit authorized by court order dated '-----�--..d....,
The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is �I --�
words or pages, excluding the portions exempted by Fed. R. App. P. 32(±), if applicable.
D This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is I words or
I pages, excluding the portions exempted by Fed. R. App. P. 32
(f), if applicable. The briefs type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).
D This brief is accom anied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is f I
words or I pages, excluding the portions exempted by Fed. R.
I
App. P. 32(±), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6).
D This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is I words orI I pages, excluding the portions exempted by Fed. R. App. P.
I
32(±), if applicable. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
Signature of Att�r?ey or I Date J 10/12/18

/s/ John W. Killeen
Unrepresented Litigant
�----------------�
("s/" plus typed name is acceptable for electronically-filed documents)
(Rev.12/1/16)
46
CERTIFICATE OF SERVICE
Case Name: Siegel, Rick v. Julie Su No. 18-55569
(APPEAL)
I hereby certify that on October 12, 2018, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
APPELLEE’S ANSWERING BRIEF
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on October 12, 2018, at Sacramento,
California.
Tracie L. Campbell /s/ Tracie Campbell

Declarant Signature
SA2018101281
13286679.docx
47

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What is the purpose of the Talent Agencies Act?

What is the purpose of the Talent Agencies Act?

What entity enforces the Talent Agencies Act?

What entity enforces the Talent Agencies Act?

Case: 18-55569, 10/12/2018, ID: 11044745, DktEntry: 13, Page 1 of 55

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

On Appeal from the United States District Court

APPELLEE’S ANSWERING BRIEF

XAVIER BECERRA JOHN W. KILLEEN

2. It Is Clear Who Is Subject to Regulation

Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth.

Chinatown Neighborhood Ass’n v. Harris

Grayned v. City of Rockford

Healy v. Beer Inst.

Legal Aid Servs. of Or. v. Legal Servs. Corp.

Nat’l Ass’n of Optometrists & Opticians

Pest Comm. v. Miller

Pharm. Research & Mfrs. of Am. v. Cnty. of Alameda

Reyn’s Pasta Bella, LLC v. Visa USA, Inc.

Sam Francis Found. v. Christies

Kashani v. Tsann Kuen China Enter. Co.

MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works

Waisbren v. Peppercorn Prods., Inc.

California Business & Professions Code

California Civil Code

California Labor Code

Restatement (Second) of Judgments (1982)

Since 1913, California has protected aspiring artists—those who want to

perform in the movies, television, radio, or on the stage—by requiring those

regulated. In its current iteration, California’s Talent Agencies Act,

“employment” for “artists” to obtain a license from California’s Labor

employment for themselves, but anyone who represents them in their

dealings, for example with movie studios or television companies, must be

licensed. Plaintiff Rick Siegel, appearing pro se, is a “personal manager”

“talent agent” in California. Siegel would like to procure employment for

to be licensed as a talent agent. Rather than submit to licensure, Siegel has

sued, alleging that the TAA’s licensing requirement is unconstitutional

based on a variety of theories. The district court properly rejected all of

Siegel’s arguments and dismissed the complaint. The district court’s

judgment should be upheld.

The paramount goal of the TAA is to protect artists, and particularly

young artists, from exploitation by unscrupulous promoters who offer them

“a foot in the door,” only then to take a disproportionate share of earnings or

to arrange unsuitable professional engagements. To curb such abuses, the

TAA requires licensed “talent agencies” and “agents”1 to safeguard artists’

physical safety and financial interests. The Labor Commissioner oversees

Like other professional licensing statutes, the TAA prohibits unlicensed

work. Just as an unlicensed person is prohibited from practicing law, acting

as a general contractor, or acting as a real estate broker in California, so too

an unlicensed person is prohibited from “procuring” “employment” for

unlicensed work in California: a contract made in violation of the licensing

statute is void. Just as an unlicensed general contractor is barred from

recovering for his or her unlicensed work, an unlicensed person who

commission on the artist’s earnings.

This is not Siegel’s first challenge to the TAA. In 2008, he filed a

dismissed the complaint, a decision which this Court affirmed.

complaint are virtually identical to Siegel’s 2008 complaint. The same

district court dismissed Siegel’s complaint again. In granting the Labor

Commissioner’s motion for judgment on the pleadings, the district court