3379 Tareco Drive

1 Los Angeles, CA 90068

323.512.2600 phone
2 323.864.7474 mobile
ricksiegel@gmx.com
3 Acting pro per
4
IN THE UNITED STATES DISTRICT COURT
5
FOR THE CENTRAL DISTRICT OF CALIFORNIA
6 WESTERN DIVISION
7
8
)
9 RICK SIEGEL, ) CASE NO. 2:17-CV-07203 CAS (SSX)
)
10 Plaintiff )
) RICK SIEGEL’S NOTICE OF
11 vs. ) MOTION AND MOTION FOR
) SUMMARY JUDGMENT
12 )
JULIE SU, in her official capacity as the ) Courtroom: 8D
13 California Labor Commissioner ) Judge: Hon. Christina A. Snyder
) Trial Date: None Set
14 Defendant. ) Action Filed: September 29, 2017
) Hearing Date: April 30, 2018
15 )
___________________________________ )
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MOTION FOR RECONSIDERATION

 TO ALL PARTIES AND THEIR COUNSEL:
1
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3 PLEASE TAKE NOTICE that on April 30, 2018 at 10:00 a.m. or as soon thereafter

4 as the matter can be heard in Department 8D of the above-entitled Court, Plaintiff Rick
Siegel (“Siegel”) will, and hereby does, move for reconsideration, asking the Court to
5
withdraw it order of March 16, 2018.
6
Issue No. 1: As delineated in the attached motion, the Court manifestly failed to
7
consider material facts submitted by the Plaintiff.
8
Issue No. 2: As delineated in the attached motion, the Court manifestly failed to
9
follow controlling State Law on State matters, instead wrongly deferring to extinguished
10
Court of Appeals determinations and dicta.
11 Issue No. 3: As delineated in the attached motion, the Court manifestly failed to
12 consider controlling Federal law as recently held in the Ninth Circuit relating to both the
13 void for vagueness and Commerce Clause issues.
14 It is clear Plaintiff is entitled to judgment in its favor as a matter of law.
15
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Dated: March 27, 2018 Respectfully submitted,
17
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///Rick Siegel///
19 Rick Siegel
20 Pro Per

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MOTION FOR RECONSIDERATION

 Rick Siegel
1 22647 Ventura Blvd., #451
Woodland Hills CA 91364
2 323.864.7474 mobile
rick@marathonentco.com
3 Acting pro per
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
8
9
10 RICK SIEGEL, an individual, ) CASE NO. 2:17-cv-07203
11 )
Plaintiff, )
12 ) MOTION FOR RECONSIDERATION
vs. ) PER FEDERAL RULE OF COURT
13 ) PROCEDURE 60(b)
JULIA SU, in her official capacity as the )
14 California State Labor Commissioner ) Courtroom: 8D
) Judge: Hon. Christina A. Snyder
15 Defendant. ) Trial Date: None Set
) Action Filed: September 29, 2017
16 ) Hearing Date: April 30, 2018
___________________________________ )
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MOTION FOR RECONSIDERATION

 1
I. INTRODUCTION AND SUMMARY OF ARGUMENT Pg. 7
2

3 II. AUTHORITY Pg. 8

4 III. SUMMARY OF ARGUMENT Pg. 8

5 IV. ARGUMENT Pg. 8
6
A. California Labor Code § 1700.4(a) Would Have Been Found
7 Unconstitutionally Vague On Its Face And As Applied When
All The Material Facts Submitted By Plaintiff And Controlling
8 Law Are Considered
9
1. Quoting The Defendant, The Term “Procure Employment” Pg. 8
10 Is “So Unclear “And Ambiguous As To Leave Reasonable
Persons In Doubt About The Meaning Of The Language
11
Or Whether A Violation Has Occurred
12
2. The TAA Contains No Remedy And Per The Controlling Pg. 13
13 Law, The Defendant Has No Authority To Create One
14 B. Plaintiff’s Claim That Defendant’s Application Of The TAA Pg. 17
15 Violates The Dormant Commerce Clause Mirrors Recent
9th Circuit Decision
16
17 C. If The Plaintiff’s Claims Were Fully Considered, The Court Pg. 18
Would Have Rejected Defendant’s Res Judicata Claim
18
D. The Courtroom Is The Correct Venue For These Issues Pg. 21
19
20 V. CONCLUSION Pg. 22
21
22
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25

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MOTION FOR RECONSIDERATION

 FEDERAL CASES
1
2 Agarwal v. Johnson, 25 Cal. 3d 938, (1979) Pg. 20

3 All Hawaii Tours v Polynesian Cultural Center, 116 F.R.D. 645 Pg. 17
4 BMW of America v. Gore, 517 U.S. 559, 574 (1995) Pg. 16
5 Chinatown Neighborhood Association v. Harris, 794 F.3d 1136 (2015) Pg. 17
6
Desertrain v. City of Los Angeles, 754 F 3d 1147 (2014) Pg. 11-12, 19
7
Dred Scott v. Sandford, 60 U.S. 393 (1857) Pg. 21
8
Grayned v. City of Rockford, 404 U.S. 104 (1972) Pg. 10, 12, 19
9
Hal Roach Studios v. Feiner and Co., 896 F.2d 1542 (1990) Pg. 8, 10, 11
10
11 Kolender v. Lawson, 461 U.S.352,357 (1983) Pg. 8

12 Kona Enterprises, Inc. v Estate of Bishop, 229 F.3d 877 (2000) Pg. 7
13 Lambert v. California 355 U.S. 225, 228 (1957) Pg. 17
14 Madison v. Marbury, 5 U.S. 137 (1803) Pg. 22
15
Plessy v. Ferguson, 163 U.S. 537 (1896) Pg. 21
16
Sam Francis Foundation v. Christies, 784 F.3d 1320 (2015) Pg. 17-18
17
Styers v. Ryan, F.3d 292, 298 (2015) Pg. 13-14
18
Turtle Island Restoration v. U.S. Dep’t of State, 673 F3d 914 (2012) Pg. 19-20
19
20 U.S. v. Evans, 333 U.S. 483, 495 (1948) Pg. 16

21 CALIFORNIA STATE CASES

22 Agricultural Lab. Relations Bd. v. Superior Court, 16 Cal.3d 392 Pg. 17
23 Buchwald v. Superior Court, 254 Cal. App. 2d 347 (1967) Pg. 13
24
Dyna-Med Inc. v. Fair Empl. & Housing Comm., 43 Cal. 3d 1385 (1987) Pg. 13
25
Langley v. Schumacker, 46 Cal.2d 601 (1956) Pg. 20
26
Loving & Evans v. Blick, 33 Cal. 2d 603 (1949) Pg. 15, 16, 21
27
Marathon v. Blasi, 42 Cal. 4th 974 (2008) Pg. 14-16, 20
28
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MOTION FOR RECONSIDERATION

 Morris v. Williams, 67 Cal 2d 733 (1967) Pg. 13
1
2 Severance v. Knight-Counihan Co., 29 Cal.2d 561 (1947) Pg. 15-16, 21

3 Slater v. Blackwood, 15 Cal 3 794 (1975) Pg. 18-19

4 Smith v. Bach, 183 Cal. 259 (1920) Pg. 14, 16, 21
5 Styne v. Stevens, 26 Cal.4th 42 (2001) Pg. 14, 15, 20
6
Wachs v. Curry, 13 Cal. App. 4th 616 (1993) Pg. 9
7
Waisbren v. Peppercorn Prods, Inc., 41 Cal. App. 4th 246, 261 (1995) Pg. 16, 20
8
Wolff v. Fox, 68 Cal. App. 3d 280 (1977) Pg. 16-17
9
Wood v. Krepps, 168 Cal. 382 (1914) Pg. 14, 16, 21
10
11
12 NJ STATE CASES
13 State v. Fair Lawn Service Center, 120 A.3d 233 (NJ 1956) Pg. 16
14 CALIFORNIA STATE STATUTES
15
CA Labor Code
16
§ 1700.4 (a) Pg. 8-12, 20
17
TALENT AGENCIES ACT CASES
18
Baker v. Bash, TAC 12-96 Pg. 17-18
19
20 Park v Deftones, TAC 9-97 Pg. 12

21 PUBLICATIONS
22 Rehnquist Court’s Canons of Statutory Construction, Pg. 13
23 108 Harv. L. Rev. 26, November 1994

24 Judith M. Stinson, Teaching the Holding/Dictum Distinction, Pg. 14

25 19 Perspectives: Teaching Legal Res. & Writing 192 (2011)

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MOTION FOR RECONSIDERATION

 1 I. INTRODUCTION AND SUMMARY OF ARGUMENT
2 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of
3 finality and conservation of judicial resources. Indeed, ‘a motion for reconsideration should

4 not be granted, absent highly unusual circumstances, unless the district court is presented

5 with newly discovered evidence, committed clear error, or if there is an intervening change
in the controlling law.’” Kona Enterprises, Inc. v Estate of Bishop, 229 F.3d 877, 890
6
(2000); All Hawaii Tours, Corp. v Polynesian Cultural Center, 116 F.R.D. 645, 648.
7
Respectfully, as outlined below, the Court did indeed commit clear errors of law, legal
8
authority and errors of fact.
9
The Order defers to two Court of Appeals case holdings over four State Supreme
10
Court holdings; and deferred to uncited dicta of two State Supreme Court cases over four
11
rightfully controlling holdings of highest state court on matters of state law. That is an error
12 of law that requires reconsideration.
13 In finding that the term ‘procure employment’ has the needed constitutional clarity,
14 the Order accepted the allegations of the Moving Party/Defendant over Defendant’s own
15 conclusion from a Report she authored and submitted to the California State Legislature. It
16 also gave wrongful deference to Defendant over the non-moving’s party statement that
17 submitting the sales materials of an artist (pictures/resumes/demos) was historically a violation of
the Act, and that following the Defendant’s statement in a recent Appeals Court Brief, submissions
18
are no longer considered a violation.
19
As this was a Rule 12(c) motion, the Court abused its discretion; by law, the non-
20
moving party’s denial had to be accepted as true. The Order failed to consider a recent 9th
21
Circuit determination that changed the law on the void for vagueness issue, thus mooting
22
the Defendant’s res judicata claim and holding if there are unanswerable questions as to
23 what activities are lawful, the statute is to be invalidated. The Court similarly ignored a 9th
24 Circuit determination, exactly on point, that holding barring Defendant from accepting and
25 ruling on controversies where the entire transaction – the procurement and the labor – were
26 done outside of California, proof the TAA violates the Dormant Commerce Clause.
27 With these understandings and others set forth below, Reconsideration is not only
28 requesting, but the Court is required to reconsider and withdraw its order.
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MOTION FOR RECONSIDERATION

 II. AUTHORITY
1
Plaintiff is relying on FCP Rule 60(b)(1), that there have been material errors of law
2
and fact that if corrected, must lead the Court to withdraw the order and rule in the
3
Plaintiff’s favor. Additionally, Plaintiff seeks an amendment of the order under the ‘catch
4
all’ FCP Rule 60(b)(6), which allows for an amendment for any other reason that justifies
5
relief, which in this instance, is the wrongful interpretation of an unconstitutionally vague
6
statute that as applied, violates the Dormant Commerce Clause.
7 In accordance with the Central District of California, a motion reconsideration is to
8 be made on grounds of: (1) a material difference in fact or law from what was presented at
9 the hearing not known at the time by the moving party; (2) emergence of post-hearing new
10 material facts or law; or (3) a manifest showing of a failure to consider material facts
11 presented to the court before such decision.
12 III. ARGUMENT
13 The Court did not account for many of material facts and claims presented in the
14 Plaintiff’s filings. Moreover, many material errors of law, authority and fact, compel the
15 Plaintiff to humbly and respectfully submit the following:
16 A. California Labor Code § 1700.4(a) Is Unconstitutionally Vague On Its Face
17 And As Applied When All The Material Facts Submitted By Plaintiff And
Controlling Law Are Considered
18
1. Quoting Defendant, The Term “Procure Employment” Is “So
19
Unclear “And Ambiguous As To Leave Reasonable Persons In Doubt
20 About The Meaning Of The Language Or Whether A Violation Has
21 Occurred”

22 As noted in the Civil Minutes in Judge Christina A. Snyder’s court on March 16th,
23 “For the purposes of [the Labor Commissioner’s] motion, the allegations of [Siegel] must
24 be accepted as true, while the allegations of the moving party which have been denied are
25 assumed to be false.” Hal Roach Studios v. Feiner and Co., 896 F.2d 1542, 1550 (1990).
26 In this instance, the Court accepted everything the Labor Commissioner alleged as
27 true, including that the term “Procure Employment” is in no way unclear. Order, Pg. 7.

28
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MOTION FOR RECONSIDERATION

 The Order (at 8) notes how Wachs v. Curry, 13 Cal.App. 4th at 629 “concluded that
1
although the terms “procure” and “employment” are not defined in the TAA, heir plain
2
meaning is readily understood by an ordinary person and not ‘so lacking in objective
3
content as to render the [TAA] facially unconstitutional.’”
4
That is not accurate. Wachs noted that the personal managers “concentrate their
5
attack on the alleged vagueness of the word ‘procure,’” not the term ‘procure
6
unemployment.’ (Id.) And as Plaintiff’s MSJ (at 14) informed the court, Wachs articulated
7 how the only issue at hand was the facial constitutionality. It raised the as applied issue on
8 its own, ending its opinion with the sentence, “Whether the Act is unconstitutional as
9 applied to plaintiffs is a question for another day.” Id. The Order ignores the fact that the
10 instant complaint also made an as applied challenge. Pg. 7, line 20 – Pg. 8, line 10.
11 Plaintiff spotlighted the Defendant’s arbitrary enforcement with a litany of cases
12 where the Labor Commissioner made opposite rulings on the exact same issue, be it, for
13 example, whether it was a violation of the Act to help get an artist a talk show appearance

14 (Pg. 9), whether an attorney working with a personal manager without a licensed agent is
violating the TAA (Pg. 9) or whether the personal manager can act proactively, then inform
15
the licensed agent (MSJ, Pgs. 8-9).
16
Plaintiff also pointed to a small mountain of law review articles on the TAA, all
17
raising the problems of the ambiguity of the TAA’s language. (MSJ, Pg. 7.)
18
Most important, Plaintiff presented the Court with the 1986 Report of the CA.
19
Entertainment Commission, authored by Defendant, in which the Labor Commissioner
20
unequivocally told the Legislature the ambiguity caused by the Act in that not further
21
defining the term ‘procure employment,’ left “an inherent inequity – and some question of
22 constitutional due process -- …of a law so unclear and ambiguous as to leave reasonable
23 persons in doubt about the meaning of the language or whether a violation has occurred.”
24 There is, lamented the Commissioner in her submission of a report handed in after a four-
25 year study, “uncertainty of knowing when [unlawful] activity may or may not have
26 occurred.”
27 As that statute has been left untouched since that Report, the Defendant’s guidance,

28 that ‘procure employment’ is too unclear and ambiguous to provide a person of ordinary
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MOTION FOR RECONSIDERATION

 intelligence a reasonable opportunity to know what is prohibited so they could act
1
accordingly, is still applicable today. The verbiage of the Defendant’s concern matches the
2
holding in Grayned v. City of Rockford, 404 U.S. 104 (1972), the hallmark case on the
3
void-for-vagueness issue. Respectfully, it is manifestly clear the Court failed to consider
4
how, after spending four years studying the Act, the Defendant concluded that the term
5
‘procure employment’ was unconstitutionally vague.
6
Per Roach, the Court has no discretion to accept the Labor Commissioner’s denied
7 accusations, especially when Plaintiff buttressed his denial with such impeaching evidence.
8 As the Labor Commissioner did not deny authorship of the Report and telling the State the
9 term “procure employment” was unconstitutionally vague, that fact should have been
10 considered and been should have been a decisive element in affirming Plaintiff’s Motion of
11 Summary Judgment. Plaintiff also presented (MSJ, Pg. 8) undeniable evidence of
12 Defendant arbitrarily changing her enforcement policies.1 It is impossible to ascertain when
13 the change was made, as the Labor Commissioner does not make public its enforcement

14 changes (see MSJ, Pg. 9, where starting with the Thomas Hayden Church matter, the Labor
Commissioner only required found violators to return one year’s compensation instead of
15
needing to repay every dollar ever paid), but the Labor Commissioner made in clear in her
16
brief in the recent suit brought by the National Conference of Personal Managers, that as of
17
that time: “personal managers do not need a license to send out resumes, photographs,
18
videotapes or written materials for an artist.” That is not just a change: it’s THE definitive
19
action that managers could not do, and now they can. Moreover, the quote was not
20
submitted in a vacuum: the Plaintiff also pointed to multiple TAA rulings where submitting
21
pictures and resumes was found to be a violation.
22 Plaintiff understands the Court did consider this issue and was unmoved: quoting Pg.
23 7, Fn 3 of the Order: “For the reasons explained in the Labor Commissioner’s reply brief,
24
25 1
As made obvious by the murmur of the managers in attendance at the oral hearing when the issue was
26 raised, submitting pictures and resumes had always been unlawful. In fact, back when pictures and resumes
were delivered by messenger, Breakdown Services, the company that sends out the casting notices, would
27 refuse to deliver managers’ submissions.

28
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MOTION FOR RECONSIDERATION

 the Court is not persuaded that the agency is not persuaded by Siegel’s quotation” from the
1
appellate brief. But as a Rule 12(c) motion, following Roach, the Court has no discretion to
2
give more credence to the moving party’s explanation than the Plaintiff’s denial. As per Pg.
3
3 of the Order, “For the purposes of the motion, the allegations of the non-moving party” –
4
in this case Siegel – “must be accepted as true, while the allegations of the [Labor
5
Commissioner],” if denied, “are assumed to be false.”
6
Moreover, Defendant’s explanation as to why the change is not meaningful only
7 confirms the Plaintiff’s vagueness argument. It is irrelevant whether, as the Labor
8 Commissioner implies, that found violators did not “only” submit but subsequently did
9 unlawful things. MSJ Opposition Brief, Pg. 5-6. The question is whether submitting sales
10 materials was unlawful and is now lawful; and amazingly, it is impossible to discern from
11 Defendant’s brief whether it is or is not. By saying that the managers in the cited matters
12 subsequently closed deals implies that it is okay to send materials as long as the client then
13 does not get the job. Either an activity is lawful, or it is not; it cannot depend on the later

14 actions by other parties – in this case the artist through doing a good audition and the buyer
being moved to hire them. On every level, this was a judicial error that the Court now has
15
and should correct.
16
The Court failed to consider the many questions Plaintiff raised relevant to the
17
indiscernible line between legality and illegality. As those questions are unanswered, and
18
unanswerable, the instant matter mirrors and should have followed Desertrain v. City of
19
Los Angeles, 754 F 3d 1147 (Ninth Circuit, 2014). See Opposition to Plaintiff’s Motion For
20
Judgment on the Pleadings (OMJP), Pg. 18, lns. 7-12. Desertrain invalidated a Los Angeles
21
Municipal ordinance banning people from sleeping in their cars was found void for
22 vagueness because it failed “to draw a clear line between innocent and criminal conduct.”
23 The Desertrain opinion listed a number of questions that the statute left unanswered:
24 “Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag?
25 Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out
26 of the rain?” Those ambiguities led the 9th Circuit to invalidate the statute as it was
27 “impossible for citizens to know how to keep their conduct within the pale.” Id. at 1156.

28 The Plaintiff asked similar questions:

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MOTION FOR RECONSIDERATION

 “Can a non-licensed person create the sales materials? Can they send them out? If
1
they can, as noted in the Labor Commissioner’s Ninth Circuit brief, send them out, what
2
happens if there is a response? Is it procurement if a manager is called with a nonnegotiable
3
offer?” The TAA exempts showcase to get a recording deal, but per Park v Deftones, TAC
4
9-97, you cannot facilitate 84 showcases, even if it is the 84th showcase on that gets the
5
band their desired deal. How many showcases can a manager set up for their artist clients
6
before crossing the line? Is that listed anywhere in the TAA? How does repeating a legal
7 action make it unlawful? See MSJ, Pg. 8-9; OMJP, Pg. 17, line 7 – Pg. 18, line 6.
8 Plaintiff did not just forward a series of questions, which, following Roach, should
9 have been sufficient to overcome the 12(b) motion. But it seems the Court did not consider
10 Grayned (at 108) – that the statute did not offer “a reasonable opportunity to know what
11 was prohibited” so personal managers could act accordingly.
12 Ignoring Desertrain, a completely applicable precedent in issue and circumstance, it
13 is a manifest failure to consider material facts presented to the court. At a minimum, a

14 litigant deserves to know why and how the court differentiated the instant matter from a
precedential ruling fully mirroring the issue and circumstances in front of this Court.
15
The Order makes no reference to and thus appear not to have considered Plaintiff’s
16
statutory construction argument. It does not explain how the defined activities of the TAA
17
are expressly reserved for licensees without any statutory provision expressly doing so.
18
This is inconsistent to the interpretation with the Psychologists, Accountancy, Landscape
19
Architects and all other like schemes that have no provisions reserving the defining
20
activities to licensees and do not penalize non-licensees from engaging in the defined
21
activities. If the Court’s interpretation is proper, that no provision expressly reserving the
22 activity for licensees is needed to bar non-licensees from engaging in it, it makes the
23 plethora of provisions reserving the defined activities for licensees superfluous.
24 The Order ignores the Plaintiff’s related argument that if procuring employment --
25 one of three activities listed in CA Labor Code § 1700.4(a) – is reserved for licensees, how
26 would anyone know whether non-licensees are barred from the other two defining activities
27 of that statute: directing and counseling? It remains an unanswered question, a manifest

28 showing that not all the Plaintiff’s facts and claims were considered.
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MOTION FOR RECONSIDERATION

 Per The Rehnquist Court’s Canons of Statutory Construction, 108 Harv. L. Rev. 26,
1
November 1994, courts are to “Avoid interpreting a provision in a way inconsistent with
2
another provision.” Interpreting the Act to prohibit non-licensees from engaging in the
3
defined activities also makes it superfluous for all other licensing schemes to expressly
4
state through statute that non-licensees cannot engage in the defined activities. Courts are to
5
avoid interpreting a provision in a way that makes other provisions superfluous or
6
unnecessary, yet in affirming the Defendant’s motion, the court did just that. It is a material
7 judicial error caused by not giving answer to the Plaintiff’s raised issue.
8 In sum, the Court should explain how this anomaly, allowing the TAA to interpret
9 ‘defined activities’ differently than every other statute in American law – can properly
10 exist without causing due process and statutory construction concerns.
11
2. The TAA Contains No Remedy And Per The Controlling Law, The
12 Defendant Has No Authority To Create One
13 Quoting the Order (at 2), “The TAA does not, however, specify the remedy for a
14 violation of this provision, i.e. the unlicensed procurement of employment on behalf of
15 an artist.”
16 With that understanding of fact, this court, as held by California law, is obliged to
17 strike down the Defendant’s enforcement: “An administrative agency cannot by its

18 own regulations create a remedy which the Legislature has withheld. 'Administrative

19
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.
20
Williams, 67 Cal 2d 733, 748 (1967).” Dyna-Med Inc. v. Fair Empl. & Housing Comm.,
21
43 Cal. 3d 1385,1388 (1987). It cannot be argued that a Court created the voidance
22
consequence. As all TAA controversies must begin at the Labor Commission, the
23
Defendant had to create the remedy. To not do so, ignoring Dyna-Med and in doing so
24
Roach, was a judicial error caused by not fully considering the Plaintiff’s submitted
25
facts.
26 The Order (at 8) explains its rejection of Plaintiff’s argument that Buchwald v.
27 Superior Court, 254 Cal. App. 2d 347 is wrongly decided because, “this court is
28 ‘constrained to defer to the highest state court on the matter of state law.’” Styers v. Ryan,
13
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MOTION FOR RECONSIDERATION

 F.3d 292, 298 (2015). More specifically, courts must defer to upper courts’ holdings, and
1
only the holdings: “that portion of a legal opinion that is ‘necessary to the result,’” and not
2
the case’s dicta. (Judith M. Stinson, Teaching the Holding/Dictum Distinction, 19
3
Perspectives: Teaching Legal Res. & Writing 192 (2011)).
4
“Knowing the distinction is important because when lawyers (and judges) can’t
5
distinguish a case’s holding from its dicta, injustice can occur.” Id. If this reconsideration
6
motion is denied, it will be an injustice. Styne v. Stevens 26 Cal.4th 42 (2001) holds that an
7 artist can maintain a TAA-based defense to a breach of contract claim against them;
8 Marathon v. Blasi, 42 Cal. 4th 974 (2008) holds that: (1) the severability must be
9 considered in TAA disputes and (2) that the TAA can apply to personal managers. Neither
10 Styne nor Marathon asked the Court to discern whether the TAA gave adjudicators
11 statutory authority to void found violators’ contracts, so the Court has no obligation to
12 follow the Marathon or Styne statement on voiding contracts.
13 Per Styers, this Court is to defer to Wood v. Krepps, 168 Cal. 382, 386 (1914),

14 which holds, “the imposition of the penalty amounts to a prohibition against doing the
business without a license and a contract made by an unlicensed person in violation of the
15
statute or ordinance is void.” The TAA has no penalty provision. In Wood, the non-
16
licensee’s contractual rights were left intact because, “The ordinance does not declare that a
17
contract made by any one in the conduct of the various businesses for which licenses are
18
provided to be procured under the ordinances, shall, if a license is not obtained, be invalid;
19
nor is there any provision therein indicating in the slightest that this failure was intended to
20
affect in any degree the right of contract.” Id.
21
As the TAA has no provision indicating in the slightest that the failure to be licensed
22 was intended to affect in any degree the right of contract, following Wood, the Defendant is
23 barred from voiding or in any way affecting the contractual rights of anyone found to have
24 engaged in an activity reserved for a licensee without a license.
25 This Court is to defer to the holding of Smith v. Bach, 183 Cal. 259, 262 (1920):
26 “The imposition by statute of a penalty implies a prohibition of the act to which the penalty
27 is attached, and a contract founded upon such act is void.” As the TAA has no imposition

28
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MOTION FOR RECONSIDERATION

 by statute of a penalty, there is no implied prohibition and thus no contractual rights should
1
be voided.
2
This Court is to defer to Loving & Evans v. Blick, 33 Cal. 2d 603, 608-09 (1949),
3
which holds that, “it has been repeatedly declared in this state that ‘a contract
4
made contrary to the terms of a law designed for the protection of the public and
5
prescribing a penalty for the violation thereof is illegal and void, and no action may be
6
brought to enforce such contract.’” As the TAA has no prescribed penalty, the Labor
7 Commission has no authority to declare that contract void.
8 This Court is to defer to the holding of Severance v. Knight-Counihan Co., 29
9 Cal.2d 561, 572 (1947): “If the statute does not provide expressly that its violation will
10 deprive the parties to sue on the contract and the denial of the relief is wholly out of
11 proportion to the requirements of public policy or appropriate individual punishment, the
12 right to recover will not be denied.” There is no appropriate punishment if the Legislature
13 does not codify any punishment. As those alleging unlawfulness are not claiming any harm

14 – instead hoping only to avoid otherwise owed, contractual compensation – any penalty is
out of proportion with the public policy. And as the TAA has no statute expressly stating
15
that violators cannot sue on a contract, the right to recover is not to be denied. The
16
Defendant’s voiding violators’ contractual rights wrongfully conflicts with Severance and
17
all the above holdings, and as such, and as the Order notes, this Court must defer to these
18
State Supreme Court holdings, it must now bar the Defendant from continuing her wrongful
19
enforcement.
20
The Plaintiff made it clear that no TAA case had ever been asked to decide the
21
validity of meting out penalties without the Act. The Court citing the dicta of Marathon and
22 Styne demonstrates the Court failed to consider material facts. Likewise, in stating that the
23 Court eliminated the criminal penalties for procuring without a license in 1986 necessarily
24 shows that the Court failed to consider the material facts the Plaintiff presented; that the
25 California Legislature eliminated sole penalty statute the TAA in 1982, and it was for
26 selling a talent agency without informing the Labor Commissioner. In 1986 the Legislature
27 followed the California Entertainment Commission’s recommendation to make the

28 elimination of that sanction permanent. The CEC Report also recommended there be no
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MOTION FOR RECONSIDERATION

 criminal sanction for procurement, expressly because, as the Defendant wrote. the statute as
1
written was vague and ambiguous.
2
The Order (at 9) finds that the Plaintiff’s argument “was specifically rejected” in
3
Waisbren v. Peppercorn Productions, 41 Cal. App. 4th at 261, saying Waisbren “held that,
4
‘[n]othing in the case law requires the existence of criminal penalties as a prerequisite to
5
declaring an illegal contract to be void.’”
6
Here again, the Court wrongly employs dicta as a holding. The issue in Waisbren was
7 severance, and it held that, “a personal manager must be licensed under the Talent Agencies
8 Act if he devotes an incidental portion of his business to the function of a talent agent-
9 procuring employment for an artist.” That holding has been overturned by Marathon. As
10 stated in all of Plaintiff’s papers, every – every piece of case law contradicts Waisbren:
11 “Where a statute fails to provide a penalty it has been uniformly held that it is beyond the
12 power of the court to prescribe a penalty.” State v. Fair Lawn Service Center, 120 A.3d 233,
13 236 (NJ 1956). Even if Waisbren was a holding, as that is a Court of Appeals matter and

14 Wood, Smith, Loving and Severance are all State Supreme Court holdings, this Court is
constrained to defer to them. Waisbren is foreclosed by those cases and the general rule that
15
if there is no penalty provision, there is no authority to impair a contract.
16
Federal law also makes it clear that should a Court choose to void, it is wrongfully
17
engaging in a legislative function. “Defining [violations of law] and fixing penalties are
18
legislative, not judicial, functions.” U.S. v Evans, 333 U.S. 483, 486. Creating remedies for
19
unlawful behavior is “a task outside the bounds of judicial interpretation.” Id. at 495.
20
The Order lists (at 7) a number of holdings noting how civil statutes do not have to
21
provide the same level of clarity as criminal statutes. This simply does not apply, the TAA
22 has no notice: a statute without notice does not in result in less clarity, it results in zero
23 clarity. The Supreme Court unequivocally stated: while the “strict constitutional safeguards
24 afforded to criminal defendants are not applicable to civil cases … the basic protection
25 against 'judgments without notice' afforded by the Due Process clause [citation] is implicated
26 by civil penalties.” BMW of America v. Gore, 517 U.S. 559, 574 (1995).
27 “Engrained in our concept of due process is the requirement of notice. Notice is

28 sometimes essential so that the citizen has the chance to defend charges. Notice is
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MOTION FOR RECONSIDERATION

 required before property interests are disturbed, before assessments are made, before
1
penalties are assessed.” Wolff v. Fox, 68 Cal. App. 3d 280 (1977) citing Lambert v.
2
California 355 U.S. 225, 228 (1957). The manager’s contract is a property interest; per
3
Wolff and Lambert, notice is required, and the Order fails to consider these facts.
4
California specifically bars administrative agencies from creating consequences to
5
unlawful activities: `It is fundamental an administrative agency may not usurp the legislative
6
function, no matter now altruistic its motives are.' Agricultural Lab. Relations Bd. v.
7 Superior Court, 16 Cal.3d 392, 419 (1976)."
8 Plaintiff brought all of the above to the attention of the Court. OMJP, Pgs. 19-23. As
9 these material facts were not given proper consideration, it is right for the Order to be
10 reconsidered and withdrawn as the Order failed to consider the relevant facts.
11 B. Plaintiff’s Argument That Defendant’s Application Of The TAA Violates The
12 Dormant Commerce Clause Mirrors Recent 9th Circuit Decision
13 Plaintiff alleges that because the Defendant will accept petitions for controversy
14 when the entire transaction – the Procurement and the labor -- occurs outside of California,

15 the enforcement as applied is a burden on interstate commerce and thus violates the

16 Dormant Commerce Clause.

To show that, Plaintiff spotlighted a few of the TAA controversies where the
17
procurement and labor – the getting of the job and the job itself – were all outside
18
California and went into detail on how the wrongful TAA enforcement aligns with two
19
recent appellate holdings – one in the Ninth Circuit. (OMJP, Pgs 27-29).
20
As evidence that the TAA is not a burden on interstate commerce, the Order points
21
to Chinatown Neighborhood Association v. Harris, 794 F.3d 1136, 1145 (Ninth Circuit
22
2015). But even the Chinatown opinion notes that per Sam Francis Foundation v. Christies,
23 794 F3d 1320, 1323-24 (9th Cir. 2015) is not applicable when the commercial transaction
24 “takes place wholly outside of the State’s borders.” Chinatown at 1146. Per Sam Francis, it
25 is not enough for one party to be a resident of the State that has regulation. If, as what
26 happened in, for instance, Bash v. Anita Baker, TAC 12-96, the procurement is done in
27 New York and Ms. Baker performs in Pennsylvania or Paris, the Defendant’s entwining the
28
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MOTION FOR RECONSIDERATION

 California-based personal manager into a licensing controversy was an unfair burden to
1
interstate commerce and violative of the Dormant Commerce Clause.
2
The Defendant did not challenge the Plaintiff’s contention that this Court should
3
have found that Sam Francis is applicable and should be followed. Should the LC choose to
4
reply to this Request, chances are it will not do so then, either.
5
The Defendant stayed silent about the many questions of what activities surrounding
6
the submission of sales materials was lawful or unlawful, and pointedly, despite being
7 specifically challenged to do so, did not opine as to whether the foundational procurement
8 act of submitting sales materials to a buyer in now or has ever been lawful.
9 The Defendant stayed silent about the Plaintiff’s Statutory Construction argument.
10 She did not try to answer how the Defendant’s interpretation of the verbiage of the Act
11 could rightfully stand as an anomaly to all other American licensing schemes. A litigant
12 that does not comment on the claims of the opposing party is to be seen as acquiescence of
13 the opposition’s position. For this Court to ignore the same issues as the Defendant is a

14 manifest showing that those issues raised by the Plaintiff were not considered, making
reconsideration appropriate.
15
16 C. If Fully Considered, The Court Would Reject Plaintiff’s Res Judicata Claim
17
As noted repeatedly, this Court is obliged to follow the highest state court on the
18 matter of state law. In Slater v. Blackwood, 15 Cal 3 794, 796 (1975), the California
19 Supreme Court “expressly” held that courts are not to follow the res judicata rule when
20 there is “a change in law following the original judgment.”
21 Siegel first sued the Labor Commissioner in 2008, claiming among other things, that
22 because there was no specificity as to what activities were reserved for licensees, there was
23 unconstitutional uncertainty as what procurement tasks were and were not legal and that it

24 led to inconsistent and arbitrary enforcement. That claim was rejected.

25
In 2013, the 9th Circuit held that a Los Angeles statute was unconstitutionally vague
as applied because there was no specificity to what living in a car meant. Though the plain
26
meaning of living in the car was readily understood by an ordinary purpose, because there
27
was no specificity as to when exactly someone was in fact living in their car, and not
28
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MOTION FOR RECONSIDERATION

 napping or eating or waiting for someone, it led to inconsistent and arbitrary enforcement.
1
As the fact pattern, unanswerable questions and legal consequences of Desertrain and the
2
Plaintiff’s claims and arguments match exactly, the Court is obliged to follow Slater and
3
reject the Defendant’s res judicata claim because Desertrain marked a change in the law five
4
years after the first Siegel/Labor Commissioner lawsuit.
5
The Order grants the Defendant’s Claim Preclusion; accepting the Labor
6
Commissioner’s argument that the “facial constitutional claim” could have been brought in
7 his 2008 litigation...” Per the Complaint (Pg 12, lines 14-17), the Cause of Action was “the
8 Commissioner’s Application of the Talent Agencies Act;” it is not a facial challenge. As
9 such, the Court failed to consider many of the Plaintiff’s presented claims and facts.
10 The Court found the Defendant’s explanation that there was no enforcement change
11 more persuasive then the Plaintiff’s claim there was. But as the Order states, as this is a 12(b)
12 motion, the Court has no leeway to side with the moving party; the Court must accept the
13 denial of the non-moving party. Plaintiff is also confused: is the Court saying that it was

14 always lawful for non-licensees to engage in the most fundamental and basic action of
procuring work for an artist, the sending out of the sales materials (picture/resume/reel)? Or
15
that there was a change, but it was immaterial. There was audible shock in the courtroom
16
when the managers heard that per the Ninth Circuit brief, it was now lawful to submit. It is
17
unthinkable that the Court is ruling that (1) submissions has always been lawful, and (2)
18
there was clarity to the affected parties. Per Grayned, ordinary people not only must be able
19
to ascertain what is unlawful, but also what is lawful.
20
If this case were to go forward, every expert in the field would have to testify how
21
submissions may be the ONLY inescapable action of trying to get artists work.
22 The Order states that per Turtle Island Restoration Network v. U.S. Dep’t of State, 673
23 F.3d 914, 917-18 (9th Cir. 2012) the “criteria” that is “most important” in “determining
24 whether there is an “identity of claims” is “(4) whether the two suits arise out of the same
25 transactional nucleus of facts.”
26 There is a very basic reason the 2008 suit and this case have different transactional
27 nuclei of facts. The two suits are based on the actions of different clients. Following the

28 Court’s interpretation, if an electric utility company was sued for intentionally turning off
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MOTION FOR RECONSIDERATION

 someone’s access to power and the utility prevailed, it would never have to worry again
1
about a future suit from the losing litigant even if they did deny the losing litigant power for
2
no valid reason, because the losing party would be foreclosed from suing again. While the
3
arguments are the same – save the change of enforcement because non-licensees can now
4
submit sales materials to buyers – the transaction involved is different.
5
Per Agarwal v. Johnson, 25 Cal. 3d 938, (1979), the defining factor is not as the
6
Defendant argues, that the “claims comprise but one cause of action because they arise from
7 the same set of operative facts. We do not agree. Under the ‘primary rights’ theory adhered
8 to in California it is true there is only a single cause of action for the invasion of one
9 primary right. (Ibid.) But the significant factor is the harm suffered; that the same facts are
10 involved in both suits is not conclusive. (Langley v. Schumacker, 46 Cal.2d 601, 602-603
11 (1956).)” Id. at 954-955. The harm of not getting paid by clients in 2000-2004 has no
12 correlation to whatever monies Ant ultimately receives and owes Plaintiff from his current
13 project.

14 On Page 26 of the OMJP, Plaintiff presented how, per Murray v. Alaska Airlines, 50
Cal 4th 860, 882 (2010), application of collateral estoppel “depends not only on whether the
15
strict requirements for estoppel have been satisfied, but also on whether the core public
16
policies underlying it―preservation of the integrity of the judicial system, promotion of
17
judicial economy, and protection of litigants from harassment by vexatious litigationǁ—
18
support its invocation.” If, after the Court recognizes that the holdings of the Supreme Court
19
cases must be given deference over the dicta of Waisbren, Marathon and Styne and the
20
Court accepts that as the Defendant wrote in her report to the CA Legislature, 1700.4(a) is
21
unconstitutionally vague, then the only way to preserve the integrity of the judicial system is
22 by not allowing bad law and unconstitutional enforcement to continue.
23 Dred Scott v. Sandford, 60 U.S. 393 (1857) held that African Americans could not be
24 considered American citizens. Plessy v. Ferguson, 163 U.S. 537 (1896) allowed States to
25 bar interracial marriage until the Loving v. Virginia, 388 U.S. 1 (1967) decision. Bowers v.
26 Hardwick 478 U.S. 186 (1986) allowed states to criminalize sexually active gay/lesbian
27 relationships. Courts are fallible. Especially when talking about the constitutionality of civil

28
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MOTION FOR RECONSIDERATION

 rights of a group, public policy demands that res judicata petitions to carefully considered to
1
ensure a party’s civil rights will not be denited.
2
This case is a perfect example. In withdrawing the tentative during the 2008 Oral
3
Argument, the Bench stated to the effect of, “I understand that if I cannot find a penalty
4
provision inside of the Act, the Act is unconstitutional.” Had the Court had the same
5
understanding then as it does now – where it now recognizes CA Civil Code § 1599 is not
6
notice of penalty, but instead gives notice to the possibility of that parts of a contract can be
7 honored, , as it ruled in 2008 and included in its rationale in the Tentative Order last month
8 but removed before circulating this final Order – the Plaintiff would have prevailed in 2008.
9 Had the CA Supreme Court recognized the term ‘manager’ in CA Labor Code §1700,
10 was not referencing personal managers, but someone’s place in the organization, or that the
11 Legislature did not reserve any activity for licensees, Siegel may not have ever needed to
12 petition this Court. Had Buchwald properly interpreted Wood, Smith, Loving and
13 Severance, Siegel would have avoided litigation entirely.

14 Most important, the statutorily unauthorized enforcement makes judicial economy

essential to keep others from being wrongfully compromised. This Court now has the
15
opportunity to stop the compromises – the bankruptcies, business dissolutions, divorces and
16
early deaths – by simply following Styers and defer to the California Supreme Court’s
17
repeated interpretations related to voiding contracts; and by recognizing, as this did during
18
oral argument in 2008, and as every upper court ruling save those misinterpreting Wood,
19
Smith, Loving and Severance because of the mistakes of Buchwald, that when there is no
20
penalty provision, there can be no consequence rendered.
21
D. The Courtroom Is The Correct Venue For These Issues
22
In oral argument, when the Court insisted that the Legislature, and not a courtroom,
23
was the right place to resolve these issues, the Plaintiff offered a strong and emotional
24
rebuttal about the judicial system being the safe place for citizens, the way the home is
25
supposed to be the safe place for children While it garnered an applause break, it was not
26
the most appropriate answer.
27
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MOTION FOR RECONSIDERATION

 When Oliver Brown wanted to fight the Board of Education, the battle was not
1
fought in the Kansas Legislature. When Jane Roe needed to have the power to choose what
2
to do with her own body, the battle was not fought in the Texas Legislature. When the
3
Lovings wanted to get married, their battle was not fought in the Kansas legislature. Ever
4
since Madison v. Marbury, 5 U.S. 137 in 1803, the exercise of Judicial review has been the
5
proper way for those wanting to right the wrongs of unconstitutional enforcements and
6
enforcement.
7
IV. CONCLUSION
8
With these understandings, the Court should now reconsider and withdraw its
9
order, instead creating a new order affirming Plaintiff’s Motion for Summary Judgment.
10
11 March 26, 2018 Respectfully Submitted,
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 1 CERTIFICATE OF SERVICE
2

3
4
5 CASE: RICK SIEGEL V JULIE SU
6
7 I hereby certify that on March 27, 2018, I electronically filed the following documents with
8 the Clerk of the Court by using the CM/ECF system.
9
10 NOTICE OF MOTION OF RECONSIDERATION
11 MOTION OF CONSIDERATION
12
13 I CERTIFY that all parties in the case are registered CM/ECF users and that service will be
14 accomplished by the CM/ECF system.
15
16
I DECLARE under penalty of perjury under the laws of the State of California the
17
18 foregoing is true and correct and this declaration was executed on March 27, 2018 in
19 Woodland Hills, California.
20
21
_______Rick Siegel__________ _______///Rick Siegel///_________
22
23 Declarant Signature
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25

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MOTION FOR RECONSIDERATION