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GRADSTEIN & MARZANO, p.c.


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Henry Gradstein, (State Bar No. 89747)


hgradstein@gradstein.cora
Maryann R. Marzano (StateBarNo. 96867)
tnmarzano@gradstein.com
Matthew A.Slater (State Bar No. 259986)

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Superior Sour? of California
County of Los Angeles

mslater@gradstein.com
6310 San Vicente Boulevard, Suite 510

NOV 1 0 2014

Los Angeles, California 90048

Sherri R. Carter, Executive Officer/Clerk

By UiAjfc**J'JJ^JLj^J
Deputy
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Tel: (323) 776-3100

Cfistinai Grijali)
Grijala

FINK & STEINBERG


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Keith A. Fink (State BarNo. 146841)


kfink@finksteinberg.com
S. Keven Steinberg (State BarNo. 151372)
ksteinberg@finksteinberg.com
OlafJ. Muller (State BarNo. 247372)
omuller@finksteinberg.com
11500 Olympic Boulevard, Suite316
LosAngeles, California 90064
Telephone: (310) 268-0780
Facsimile: (310) 268-0790

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Attorneys for Plaintiff


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THEY COULD BE HEROES, LLC


and THOMAS RABOIN

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^5 vU ^O^MkOkJ

SUPERIOR COURT OF THE STATE OF CALIFORNIA


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COUNTY OF LOS ANGELES, CENTRAL DISTRICT


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THEY COULD BE HEROES, LLC, a


California limitedliability company; and
THOMAS RABOIN, an individual,

- NO.
CASE

BC56 3 47 0

PLAINTIFFS' COMPLAINT FOR:

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Plaintiffs,

1.
2.

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3.

vs.

4.

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GARYSIMSON, an individual; and DOES 1


to 50, inclusive,

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Defendants.

NCE

INTENTIONAL IN
WITH PROSPECT

RELATIONS;

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5.

BREACH OFfl^pilR^|>TY m

6.

DECLARAT^iaMLTEF;,? *

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BREACH OF CONTRACT;
FRAUD;
CONVERSION;

7.

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>

PRELIMINARY^CNrD PERMANENT*

INJUNCTIVE RELIEF S

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j>

[JURY TRIAL DEMANDED]


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PLAINTIFFS' COMPLAINT

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en

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COME NOW PLAINTIFFS THEY COULD BE HEROES, LLC and THOMAS

RABOIN and hereby allege as follows:


PARTIES

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1.

PLAINTIFF THEY COULD BE HEROES, LLC ("Plaintiff" and/or TCBH") is

andat all timesrelevant hereto was a California limited liability company that maintains offices and

does business in Los Angeles County, California.

2.

PLAINTIFF THOMAS RABOIN ("Plaintiff" and/or "Raboin")) is and at all

times relevant hereto was an individual residing in Los Angeles County, California. (TCBH and

Raboin are collectively referred to herein as "Plaintiffs".)

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3.

DEEFENDANT GARY SIMSON ("Defendant" and/or Simson" ) is and at all

times relevant hereto was an individual residing in LosAngeles County, California.


4.

Plaintiffs are unaware of the true names and capacities, whether individual,

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corporate, associate or otherwise, of Defendants DOES 1 to 50, inclusive ("the DOE

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Defendants"), and therefore sue said DOE Defendants by such fictitious names. Plaintiffs will

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seek leave of Court to amend this Complaint to show the true names and capacities of such DOE

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Defendants when the same has been ascertained. Plaintiffs are informed, believe, and thereupon

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allege that each of the fictitiously-named Defendants is responsible to Plaintiffs for the injuries

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suffered and alleged herein, and/oris subject to thejurisdiction ofthe Courtas necessary party for

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the relief herein requested.

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5.

Plaintiffs are informed and believe that Defendant Simson and each of the DOE

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Defendants (collectively, "Defendants") are now and were at all times mentioned herein the

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agents, principals, partners, joint venturers, employees and/or alter-egos of the other Defendants,

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and that allof the acts and conductalleged herein were performed within the course andscope and

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in furtherance of such agency, partnership, joint venture, employment and/or alter-ego

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relationship.

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PLAINTIFFS' COMPLAINT

6.

Jurisdiction and venue are proper in this Court because the wrongful acts and

omissions alleged occurred in the County ofLos Angeles, the harm suffered by Plaintiffs occurred

in the County ofLos Angeles, and Defendant is and atall times relevant herein was doingbusiness

intheCounty ofLos Angeles, State ofCalifornia.


FACTUAL ALLEGATIONS

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7.

Plaintiffs re-allege, and incorporate herein by reference paragraphs 1 through 6,

inclusive, as though fully set forth herein.

8.

In or about February 2008, Plaintiff Raboin was introduced to Defendant Simson

through a shared business associate, Troy Bogert ("Bogert"). Raboin first met with Defendant in

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Burbank, California to discuss a then-untided film project, which came to be known as "They

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Could BeHeroes" (the "Film").

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9.

During this meeting, Defendant Simson described the Film as a project whereby

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some ofthe biggest names in the music industry including but not limited to a number ofcelebrity

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musicians, would be interviewed for the Film. Simson explained that the Film would center on

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Waddy Wachtel, asession musician famous within the music industry for playing and collaborating

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with various high-profile rock musicians, a roster which included but was not limited to Keith

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Richards, Roger Daltry, Robert Plant, Joe Walsh, Stevie Nicks, Iggy Pop, Jackson Browne, James

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Taylor, and many others. Simson specifically represented to Raboin that he could and would

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interview many if not all of these high-profile musicians, among others, in connection with the

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Film to reminisce about their times with Wachtel. In subsequent meetings, Raboin and Simson

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further developed the Film's structure to include live performances of these musicians with

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Wachtel at a rock and roll club then called "the Joint" at 8771 W. Pico Bivd, Los Angeles, CA

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90035, during which segments these musicians would play some of the more famous songs on

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which Wachtel had collaborated. Raboin explained to Simson that the greater the number ofhigh-

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profile musicians and celebrities interviewed by Simson for the Film during production, the easier

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it would be for Raboin to raiseinvestment funds needed to complete the Film.


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PLAINTIFFS' COMPLAINT

10.

During the initial meeting, Simson explained to Raboin that he needed Raboin's

help to raise capital for the Film and to otherwise handle the business affairs ofthis project. Simson

explained that he had already conducted and filmed a number ofthese interviews himself under

the moniker "Gary Simson Productions," which interviews and footage would be incorporated

intothe Film. Simson estimated that the remainder of the Film would takeapproximately one and

one-half (1-1/2) years to complete. Raboin expressed interest in the project, and the two agreed to

continue their discussions.

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On or about March 3, 2008, Defendant Simson e-mailed Plaintiff Raboin his

business plan for making and financing the Film. In this e-mail, Simson set forth his personal

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financial estimates on first returns to investors, a list of prospective interviewees, a discussion

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regarding cost deferment, and his plans relating to a theatrical release of the Film. Simson also

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outlined abudget for the Film, wherein he listed his personal fees for services to be rendered in

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connection with the Film at $52,800 in exchange for twenty-four (24) weeks of work. Simson

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further (under) estimated the cost to obtain music rights for the Film at atotal of $240,000 for the

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useof forty(40) songs.

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Shortly thereafter and over the next four (4) years, the parties commenced filming,

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marketing, developing, and editing the Film as agreed. In reliance on Defendant Simson's conduct

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and comments to Plaintiffs, Plaintiff TCBH purchased thousands ofdollars' worth ofequipment

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to film and edit the Film via capital calls which were funded almost entirely by Plaintiff Raboin

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himself. PlaintiffTCBH also hired various third-party contractors to work on the Film. During this

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time period, the parties regularly referred to one another as "business partners" with one other

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and with third parties including, but not limited to, potential distributors and marketers of the

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Film.

13.

The parties' mutual business associate, Bogert, was initially involved in the Project.

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The parties initially agreed that Bogert would serve as the Film's editor. Within approximately

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nine (9) months of these initial meetings, however, Bogert left the project, frustrated with

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PLAINTIFFS' COMPLAINT

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Defendant Simson's lack ofprogress in securing and conducting the various musician interviews,

which in turn made it exceedingly difficult to raise funding sufficient to pay Bogert's requested

fees.

14.

On or around March 30, 2008, the parties, with Bogert, drafted their first Private

Placement Memorandum ("PPM") wherein they outlined their joint business plan with respect to

the Film for prospective investors in the project. The purpose of the PPM was to raise funds for

the project which would be managed through a limited liability company (the "LLC") they

intended to create.

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In exchange for hiswork filming, editing and conducting mostof the interviews, the

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parties agreed that Defendant Simson would be paid a $52,500 fee from PlaintiffTCBH, which fee

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would be separate from his member share of the LLC's projected future profits (from the Film's

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eventual sale and distribution). The parties referenced this fee in this initial PPM as an expense of

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the LLC. Over the next few years, Simson repeatedly demanded that his fee be increased to

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$93,000, neardouble the originally agreed-upon amount.

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16.

On or about April 23, 2008, Plaintiff Raboin, Defendant Simson, and Troy Bogert

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formed Plaintiff They Could Be Heroes, LLC, as a California limited liability company, for the

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purpose of creating, filming, editing, marketing, developing, and distributing the Film. All three

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individuals initially served as co-Managers ofTCBH. When Bogert leftthe project later that year,

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PlaintiffRaboin and Defendant Simson became thesole remaining co-Managers ofTCBH.

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17.

On or about May 16, 2008, Raboin, Simson and Bogert entered into a written

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Operating Agreement forTCBH (the "Operating Agreement"), which generally memorialized the

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terms of their operation and management of TCBH. A true and correct copy thereofis attached

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hereto as Exhibit A.

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Pursuant to the terms of the OperatingAgreement, Plaintiffand Defendants agreed

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to create, produce, film, edit, market, develop, and distribute the Film under the sole control,

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ownership, and authorship of PlaintiffTCBH. Exhibit A. Pursuant to the terms of the Operating

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PLAINTIFFS' COMPLAINT

Agreement, Plaintiff and Defendants also agreed that the Film and all related materials including,

but not limited to, all video and audio footage, edited materials, derivative materials, marketing

materials, distribution materials, paperwork, correspondence, and other such items, would be

owned (and ultimately distributed and/or sold) solely by Plaintiff TCBH, for which purpose they

formed and managed this entity. Exhibit A.

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In June 2008, Plaintiff Raboin drafted and distributed a new PPM for investment

purposes. Simson personally reviewed and approved it prior to circulation. As set forth inthis new

PPM, the parties sought to raise $1 million in investment funds on or by December 1, 2008.

Further, by its terms, Plaintiff Raboin was to receive a ten per cent (10%) commission on any

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investment funds raised. Notwithstanding Raboin's bestefforts, the parties were able to raise only

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a scant $30,000 bythe December 1,2008 deadline.

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20.

During the first year of TCBH's operations, Simson interviewed a number of

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musicians for the Film, but he was only able to secure and conduct the filmed interview of one

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high-profile musician - George Thorogood.

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21.

On or about October 28, 2008, Plaintiff Raboin pre-registered the copyright for the

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Film on behalf of the LLC. He specifically pre-registered the Film's author/owner as Plaintiff

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They Could Be Heroes, LLC.

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22.

Through 2009, Plaintiff Raboin contacted and contracted with various third parties

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for graphics and editing work in connection with the Film. He hired cameramen, a film editor (to

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replace Bogert), a production assistant, an associate producer, and other individuals to assist

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Simson in the Film's pre-production, filming, and post-production work. He made a point of

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keeping Plaintiff Raboin apprised of his work and progress and regularly sent invoices to Plaintiff

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Raboin to coverthese various Film-related expenses, which PlaintiffRaboin did.

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In 2009, Plaintiff Raboin prepared a third PPM to again try to raise more money for

T 25 the Film project. He again sent it to Simson, who personally reviewed andapproved it beforehand.
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PLAINTIFFS' COMPLAINT

By and through this third PPMS the parties sought to raise $1 million by the end of2009. This

time, PlaintiffRaboin was able to raise $180,000 from various investors.

24.

Through 2009, Defendant Simson interviewed eleven (11) more musicians. As in

2008, only two - Jackson Browne and Mick Fleetwood - were relatively high-profile musicians as

the parties had discussed.

25.

In 2010, after working onthe Film for over two years, Defendant Simson's interest

in the Film appeared to be flagging. Simson only interviewed two (2) musicians during the entire

year, neither ofwhom was particularly well-known.

26.

Around this time in 2010, Defendant Simson abruptly asked Raboin how he could

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"limit his liability" on the Film and in connection with the LLC. Surprised by this query, Raboin

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asked what Simson had in mind. Simson responded by explaining to Raboin that he no longer

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wished to be personally responsible for the Film's sale and distribution, or for the LLC's

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management and operations. He further explained that he merely wanted to produce and direct the

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film inexchange for a flat fee, like the LLC's other third-party contractors. Raboin suggested that

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Simson remove himself as co-Manager ofTCBH, in place ofwhich Raboin, acting on the LLC's

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behalf, would contract with Simson toserve as a producer/director on the project. As part ofthese

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discussions, Simson asked Raboin for a detailed accounting of the LLC's finances, which Raboin

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provided. Raboin also prepared a fourth PPM to seek another round ofinvestor funding for the

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Film, which he again sentto Simson beforehand for his review.

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27.

The parties henceforth commenced negotiations of the terms of Simson's

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producer/director agreement. During the subsequent two (2) year-long negotiations period,

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Simson continued to perform his previously agreed upon producer/director duties for TCBH, but

". 23 ceased performing any LLC management duties as TCBH's co-Manager, leaving Plaintiff Raboin
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as the sole remaining Manager ofPlaintiff TCBH. Simson subsequently confirmed as much in e-

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mails and verbal communications with Plaintiff Raboin.

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PLAINTIFFS' COMPLAINT

28.

In 2011, Defendant Simson managed to secure and film eight (8) additional

musician interviews, the most high-profile of which was that of Fleetwood Mac's vocalist, Stevie

Nicks.

29.

During this same year, Defendant Simson sharply increased his spending ofTCBH

funds for purported Film-related expenses. When Raboin questioned Simson's sudden "need" for

the requested expenditures, Simson complained to Raboin that the Film was underfunded and that

Raboin needed to increase his fundraising efforts on TCBH's behalf. Raboin in turn prepared a

fifth PPM to seek yet another round ofinvestor funding for the project.

30.

During the first few months of 2012, the parties' ongoing negotiations regarding the

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terms of Defendant Simson's producer/director agreement stalled, as Simson increasingly

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demanded exceedingly high fees for his services that Plaintiff TCBH simply could not afford.

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Raboin repeatedly explained to Simson that TCBH simply could not afford to pay Defendant

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Simson his demanded $93,000 fee and cover other production expenses. During these

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negotiations, Simson repeatedly proposed that he personally take over the entire Film project from

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Plaintiffs including, but not limited to, the Film's ownership, distribution, and marketing efforts,

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which offers PlaintiffRaboin politely declined.

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31.

On or aroundMarch 23,2012, Defendant Simson announced to Raboin that he was

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"resigning" from Plaintiff TCBH as a member and as a producer/director and that he wanted

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nothing further to do with Plaintiffs whatsoever. He further demanded that "all references" to his

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name be removed from "the LLC's website, literature, bank account(s), promotional materials,

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and all appropriate government documents." As part of his resignation letter, Simson accused

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Raboin of financially mismanaging the Film and failing to account for various Film-related

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expenses, even though Raboin had repeatedly provided thorough and accurate accountings on

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demand to Simson. Simson's accusation of mismanagement was particularly ironic insofar as

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Simson personally depleted the company's funds through his sudden increase in "expense

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reimbursements" in 2011.

32.

At the time that Defendant Simson cut all ties with the Film in March 2012,

Plaintiff Raboin had raised approximately half a million dollars for the Film's marketing,

development, filming, and editing. The various investors in the Film collectively owned fifteen

percent (15%) ofPlaintiff TCBH at this time. When Simson quit Plaintiff TCBH entirely, Plaintiff

Raboin assumed ownership ofSimson's membership share.

33.

Notwithstanding the same, Defendant Simson refused to relinquish TCBH's

equipment that he had used to film and edit the Film. Unbeknownst to Plaintiffs, moreover,

Defendant Simson failed to relinquish all copies of the Film itself including, but not limited to, all

footage filmed, all edited material and all other physical material relating to the Film in his

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possession, custodyand control.

34.

Ratherthan return LLC property to Plaintiff TCBH and relinquish hisinvolvement

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with the Film,Defendant Simson instead continued to conduct interviews forthe Filmon hisown,

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as if he had never entered into the Operating Agreement or other agreements with Plaintiffs.

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Defendant Simson started an online fundraising campaign in or about 2013 to raise funds to

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continue the filming, editing, marketing and distribution work for the Film, in which campaign

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materials he claimed that the project was his and his alone. He also changed the Film's name to

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"King of the Sidemen," to hide his conversion of the Film for himself from Plaintiffs and their

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investors.

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35.

Plaintiffs have since had no choice but to seek judicial redress for their grievances

against Defendant Simson.

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PLAINTIFFS' COMPLAINT

FIRST CAUSE OF ACTION

BREACH OF WRITTEN CONTRACT

(By Plaintiffs against All Defendants)

36.

Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1-35, inclusive,

as though fully set forth herein.

37.

On orabout May 16,2008, Plaintiff Raboin and Defendant Simson entered into the

Operating Agreement, which generally memorialized the terms oftheir operation and management

of Plaintiff TCBH. Exhibit A.

38.

Pursuant to the terms of the Operating Agreement, Plaintiffs and Defendant

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Simson agreed tocreate, produce, film, edit, market and distribute the Film under the control and

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ownership of Plaintiff TCBH. Exhibit A. Pursuant to the terms of the Operating Agreement,

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Plaintiff Raboin and Defendant Simson also agreed that the Film itself and all footage, marketing

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materials, and related items and property would be owned exclusively by Plaintiff TCBH. Exhibit

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A.

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39.

The Operating Agreement represents a valid and binding written contract, the

terms of which are certain and enforceable.

40.

Plaintiffs performed their obligations under the Operating Agreement, save those

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obligations that have been waived, excused or prevented by Defendants' actions, omissions and/or

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breaches.

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41.

As alleged above, Defendant Simson has converted the Film for his own personal

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use in breach of the Operating Agreement, and he has continued to create, produce, film, edit,

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market and distribute theFilm for his own personal use inbreach oftheOperating Agreement, and

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in derogation ofthe rights ofPlaintiffs and to theirdetriment.

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42.

Defendants' breaches were undertakenwithout justification or excuse.

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43.

Plaintiffs' damages are a certain, foreseeable, and measurable consequence of

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Defendants' breaches. As a direct and proximate result of said breaches, Plaintiffs have been
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PLAINTIFFS' COMPLAINT

damaged in an amount to be proven at trial according to proof, and which they believe to be in

excess of $10 million, plus pre-judgment interestthereon at the maximum legal rate.

SECOND CAUSE OF ACTION

FRAUD

(By Plaintiff Raboin against All Defendants)

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44.

Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1-35, inclusive,

asthrough fully set forth herein.


45.

As alleged above, Defendant Simson repeatedly lied and misrepresented his true

intentions to PlaintiffRaboin to induce him intogoing intobusiness with Defendant, to induce him

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into forming Plaintiff TCBH with Defendant Simson, and to induce Plaintiffs into continuing to

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fund and otherwise assist with the filming, editing, marketing anddistribution of the Film. During

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their initial meetings in 2008, Defendant Simson repeatedly represented to PlaintiffRaboin that he

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had every intention of sharing the profits and control of the Film with Plaintiff Raboin. During

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their subsequent meetings in 2010 - 2012 relating to their producer/director agreement

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negotiations, Defendant Simson repeatedly represented to Plaintiff Raboin that he wished to be

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paid a flat fee for his producer/director services in lieu of any rights to the Film's ownership,

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marketing, control, and profits. At no point in time did Defendant Simson inform Plaintiff Raboin

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that he had no intention of doing any of the above and instead had every intention of taking the

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Film's controland profits for himself.

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46.

Defendant's representations and omissions of material fact were false, false at the

time they were made, and continued to be false through the date offiling this lawsuit.
47.

Defendant knew these representations and omissions of material fact were false,

false at the time they were made, and false through the point intime when he "resigned" from the

^ 24 project in 2012, but he intentionally made them anyway. Defendant intentionally made these false
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representations and omissions of material fact to induce Plaintiff into going into business with

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PLAINTIFFS' COMPLAINT

Defendant and to further induce Plaintiff into continuing to fond and otherwise assist with the

filming, editing, marketing, and distribution oftheFilm.

48.

Had Defendant Simson been honest, forthcoming and truthful about his true

intentions with respect to the Film, Plaintiff Raboin would never have gone into business with

Defendant, and Plaintiff Raboin would never have permitted or authorized Defendant to work on

the Film. Defendant understood this, and yet willfully and fraudulently induced Plaintiff into going

into business with him and funding, editing, marketing and distributing the Film to Plaintiff's

ultimate detriment.

49.

Plaintiff was reasonably justified in relying on the false representations and

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omissions of material fact made by Defendant. Plaintiff relied on these representations and

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omissions because he had no reason to disbelieve these statements given the years-long History of

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working together with Defendant on the Film. Plaintiff otherwise developed a personal friendship

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with Defendant Simson and did not believe that his friend woulddeceive him in such a despicable,

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uglymanner.

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50.

Plaintiffs damages are a certain, foreseeable and measurable consequence of

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Defendants' lies, misrepresentations and omissions. As a direct and proximate result of

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Defendants' wrongful conduct, Plaintiff has been damaged in an amount to be proven at trial

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according to proof, and which they believe to be in excess of $10 million, plus pre-judgment

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interest thereon at the maximum legal rate.

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51.

Defendant's actions were willful, fraudulent and/or malicious within the meaning

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of California Civil Code 3294, thereby entitling Plaintiff to recover exemplary and punitive

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damages in anamount according to proof at trial.

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PLAINTIFFS' COMPLAINT

THIRD CAUSE OF ACTION

CONVERSION

(By Plaintiffs against All Defendants)

52.

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as though fully set forth herein.

53.

Plaintiffs were atall times mention herein, and are currently, the rightful owners of

the Film and ail related materials thereto, including, but not limited to, all footage filmed,

photographs, edited segments of the Film, audio portions of the Film, and all marketing materials,

correspondence, notes, credit sequences, paperwork, papers, and derivative versions oftheFilm.
54.

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55.

Plaintiffs are informed and believe and on that basis allege thatDefendant Simson

has converted the Film and all related materials thereto tohis own personal use.
56.

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Defendant Simson knew at all times relevant herein that the Film and related

materials thereto rightfully belong to the Plaintiffs.

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Defendant Simson has ignored Plaintiffs' requests that he relinquish control of the

Film and all related materials thereto to them.

57.

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Plaintiffs' damages are a certain, foreseeable and measurable consequence of

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Defendant's wrongful conduct. As adirect and proximate result ofDefendant's wrongful conduct,

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Plaintiffs have been damaged in an amount tobe proven at trial according to proof, and which they

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believe to be in excess of $10 million, plus pre-judgment interest thereon at the maximum legal

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Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1- 35, inclusive,

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rate.

58.

Defendant's actions were willful, fraudulent and/or malicious within the meaning

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of California Civil Code 3294, thereby entitling Plaintiffs to recover exemplary and punitive

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damages in anamount according to proofat trial.

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FOURTH CAUSE OF ACTION

INTENTIONAL INTERFERENCE WITH

PROSPECTIVE ECONOMIC RELATIONS

(By Plaintiffs against All Defendants)


59.

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Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1-35, inclusive,

as though fully set forth herein.

60.

PlaintiffRaboin and Defendant Simson agreed to create, produce, film, edit, market

and distribute the Film under the control and ownership ofPlaintiff TCBH. Exhibit A. Pursuant

to the terms ofthe Operating Agreement, Plaintiff and Defendants agreed that the Film would be

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owned entirely by PlaintiffTCBH, for which purpose they formed this entity. Exhibit A.
61.

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After "resigning" from TCBH, Defendant Simson has continued to film, edit,

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market, and distribute the Film to various third parties, including but not limited to raising

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additional funds for the same by soliciting money from the general public using the website

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Kickstarter.com. in breach of the Operating Agreement. Defendant further has "renamed" the

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film "King of the Sidemen" and marketed it as such, as though he never had any business

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relationship relating to the film with Plaintiffs in the first place. This has direcdy interfered with

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Plaintiffs' own ongoing efforts to film, edit, market, and distribute the Film on their own behalf, as

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well as solicit investment to fund the same.

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62.

Defendant Simson's actions were undertaken without justification orexcuse.

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63.

Plaintiffs' damages are a certain, foreseeable and measurable consequence of

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Defendant's wrongful conduct. As adirect and proximate result ofDefendant's wrongful conduct,

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Plaintiffs have been damaged in an amount to be proven at trial according to proof, and which they

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rate.

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PLAINTIFFS' COMPLAINT

64.

of California Civil Code 3294, thereby entitling Plaintiffs to recover exemplary and punitive

damages inan amount according to proofat trial.

FIFTH CAUSE OF ACTION

BREACH OF FIDUCIARY DUTY

(By Plaintiffs against All Defendants)

65.

Plaintiffs repeat, re-allege, and incorporate herein by reference paragraphs 1-35,

inclusive, as though fully set forth herein.


66.

By virtue of his status as TCBH's co-manager pursuant to the terms of the

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Operating Agreement, Defendant Simson owed duties of fiduciary loyalty and care to Plaintiff

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Raboin and Plaintiff TCBH.

67.

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As alleged herein, Defendant Simson breached both of his fiduciary duties to

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Plaintiffs by: (a) failing to interview the celebrity musicians he had purportedly lined up to

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participate in the Film as he had previously promised; (b) requesting reimbursement for excessive

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expenditures, thereby causing TCBH's account to become depleted; and (c) effectively "stealing"

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the Film and related materials from Plaintiffs for his own personal use in breach of the Operating

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Agreement, and to Plaintiffs' detriment.

68.

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Defendant's actions were willful, fraudulent and/or malicious within the meaning

Plaintiffs' damages are a certain, foreseeable, and measurable consequence of

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Defendant's breaches of fiduciary duties. As a direct and proximate result of said breaches,

20

Plaintiffs have been damaged in an amount to beproven at trial according to proof, and which they

21

believe to be in excess of $10 million, plus pre-judgment interest thereon at the maximum legal
rate.

C-

'

23

69.

Defendant's actions were willful, fraudulent and/or malicious within the meaning

Z 24

of California Civil Code 3294, thereby entitling Plaintiffs to recover exemplary and punitive

damages in an amount according to proofat trial.

25

r-

26
-jjt
PLAINTIFFS' COMPLAINT

SIXTH CAUSE OF ACTION

DECLARATORY RELIEF

(By Plaintiffs against All Defendants)

70.

Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1-35, inclusive,

as thoughfully set forth herein.

71.

An actual controversy has arisen and now exists as between Plaintiffs and

Defendant Simson concerning their respective rights and duties under the Operating Agreement

and with respect to the Film and all related materials thereto. Plaintiffs contend that Plaintiff

TCBH owns all rights and title to the Film pursuant to the Operating Agreement, and that

10

Defendant Simson's continued work on the Film for his own personal use is a breach of the

11

Operating Agreement.

72.

12

Plaintiffs are informed and believe, and onthatbasis allege, that Defendant Simson

13

disputes that he has breached the terms of the Agreement as alleged above, and that he further

14

disputes Plaintiffs' contention that they have the sole right to ownership and control over the

15

Film.

16

73.

Plaintiffs desire a judicial determination ofthe parties' respective rights and duties

17

relating to the Film, a declaration that the Operating Agreement has been breached by

18

Defendants, and a declaration that Plaintiff TCBH owns all rights, title and interest inand to the

19

Film and all related materials thereto. Ajudicial determination is necessary and appropriate atthis

20

time under the circumstances in order that the Plaintiffs may ascertain their rights and duties

k- 21

under the Operating Agreement, and to resolve, among other things, the rightful ownership and

k 22

possession of the Film and all related materials thereto.

"~ 23

^ 24
G

r-

25
26
-16-

PLAINTIFFS' COMPLAINT

SEVENTH CAUSE OF ACTION

PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF

(By Plaintiffs against All Defendants)

4
5

74.

Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1-35, inclusive, as

thoughfully set forth herein.

75.

The actions of Defendant alleged above have caused, and continue to cause, great

and irreparable harm to Plaintiffs, which cannot adequately be measured solely by monetary

damages.

76.

Plaintiffs are entided to preliminary and permanent injunctive relief enjoining and

10

prohibiting Defendant Simson, and any and all ofhis agents, servants, assigns and all others acting

11

in concert with or on behalf of Defendant, from taking any action in connection with the Film

12

inconsistent with Plaintiffs' ownership thereof including, without limitation, continuing to create,

13

produce, film, edit, market and distribute the Film, transferring any interest in the Film oraffecting

14

titleto the Film in anymanner.

15
16
17
18

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs THEY COULD BE HEROES, LLC and THOMAS RABOIN

pray for judgment against Defendants GARY SIMSON and DOES 1through 50 as follows:
1.

accordance withproofat the time oftrial, in excess of $10 million;

19
20
{-*.'

2.

3.

y- 25

For a declaration that Plaintiffs own all rights, tide and interest in and to the Film
and all related materials thereto;

r 23

f2 24

For a declaration that the Operating Agreement has been breached by Defendant
Simson;

21

22

For general and compensatory damages, including prejudgment interest, in

4.

For disgorgement/restitution of Defendant's ill-gotten gains, including, but not


limited to, any and all profits made by Defendant Simson in connection with the

~ 26
-17-

PLAINTIFFS' complaint

Film and the immediate return of the Film and all related materials thereto to

Plaintiffs' possession, custody, and control;

For an Order enjoining and prohibiting Defendants and any and all oftheir agents,

servants, assigns and all others acting in concert with or on behalf of Defendants,

from taking any action in connection with the Film inconsistent with Plaintiffs'

ownership thereof including, without limitation, continuing to create, produce,

film, edit, market and distribute the Film, from transferring any interest in the Film,

and from affecting title tothe Film inany manner;

6.

For punitive damages in favor of Plaintiffs in an amount to be determined at trial

10

according to proof;

11

ForPlaintiffs' costs and attorneys' fees, as permitted by law;

12

and

13
14

8.

'

Forsuch other and further relief as the Court may deem just and proper.

Dated: November 10,2014

GRADSTEIN & MARZANO, P.C.


HENRY GRADSTEIN
MARYANN R. MARZANO
MATTHEW A. SLATER

15
16

-and17

FINK & STEINBERG


KEITH A. FINK

18

S.KEVEN STEINBERG

OLAF J. MJ

19
20

21

i- 22

'* 23
K

By:

OLAFjrMULLER
Attorneys for Plaintiffs
THEY COULD BE HEROES, LLC,
and THOMAS RABOIN

24

>- 25
i:

26
-18-

PLAINTIFFS' complaint

1
2
3

DEMAND FOR JURY TRIAL

Plaintiffs demand atrial by jury ofall issues triable by ajury.


Dated: November 10,2014

GRADSTEIN &MARZANO, P.C.


HENRY GRADSTEIN

MARYANN R. MARZANO
MATTHEW A. SLATER

-and6

FINK& STEINBERG

KEITH A. FINK

OLAFJ. Ml

S.KEVEN STEINBERG

9
10
11

12
13
14

15

16
17

18

19 I
20
K-

21

t~ 22

" 23

h: 24
H 25
r.

26

By:

OLAFJ. MULLI
Attorneys for Plaintiffs

THEY COULD BE HEROES, LLC,


and THOMAS RABOIN