they could be heroes v. gary simpson

1 GRADSTEIN & MARZANO, P.C.Henry Gradstein, (State Bar No. 89747)

2 [email protected] R. Marzano (State Bar No. 96867)

3 [email protected] A. Slater (State Bar No. 259986)

4 [email protected] San Vicente Boulevard, Suite 510

5 Los Angeles, California 90048Tel: (323) 776-3100

6FINK & STEINBERG

7 Keith A. Fink (State Bar No. 146841)[email protected]

8 S. Keven Steinberg (State Bar No. 151372)[email protected]

9 OlafJ. Muller (State Bar No. 247372)[email protected]

10 11500 Olympic Boulevard, Suite 316Los Angeles, California 90064

11 Telephone: (310) 268-0780Facsimile: (310) 268-0790

12Attorneys for Plaintiff

13 THEY COULD BE HEROES, LLCand THOMAS RABOIN

14SUPERIOR COURT OF THE STATE OF CALIFORNIA

15COUNTY OF LOS ANGELES, CENTRAL DISTRICT

16THEY COULD BE HEROES, LLC, a CASE NO.

17 California limited liability company; andTHOMAS RABOIN, an individual, PLAINTIFFS’ COMPLAINT FOR:

18Plaintiffs, 1. BREACH OF CONTRACT;

19 2. FRAUD;vs. 3. CONVERSION;

20 4. INTENTIONAL INTERFERENCEGARY SIMSON, an individual; and DOES 1 WITH PROSPECTIVE ECONOMIC

21 to 50, inclusive, RELATIONS;5. BREACH OF FIDUCIARY DUTY;

22 Defendants. 6. DECLARATORY RELIEF;7. PRELIMINARY AND PERMANENT

23 INJUNCTWE RELIEF

24 [JURY TRIAL DEMANDED]

25

26-1-•

PLAINTIFFS’ COMPLAINT

1 COME NOW PLAINTIFFS THEY COULD BE HEROES, LLC and THOMAS

2 RABOIN and hereby allege as follows:

3 PARTIES

4 1. PLAINTIFF THEY COULD BE HEROES, LLC (“Plaintiff” and/or TCBH”) is

5 and at all times relevant hereto was a California limited liability company that maintains offices and

6 does business in Los Angeles County, California.

7 2. PLAINTIFF THOMAS RABOIN (“Plaintiff” and/or “Raboin”)) is and at all

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

9 Raboin are collectively referred to herein as “Plaintiffs”.)

10 3. DEEFENDANT GARY SIMSON (“Defendant” and/or Simson” ) is and at all

11 times relevant hereto was an individual residing in Los Angeles County, California.

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

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

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

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

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

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

18 suffered and alleged herein, and/or is subject to the jurisdiction of the Court as necessary party for

19 the relief herein requested.

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

21 Defendants (collectively, “Defendants”) are now and were at all times mentioned herein the

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

23 and that all of the acts and conduct alleged herein were performed within the course and scope and

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

25 relationship.

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-2-PLAINTIFFS’ COMPLAINT

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

2 omissions alleged occurred in the County of Los Angeles, the harm suffered by Plaintiffs occurred

3 in the County of Los Angeles, and Defendant is and at all times relevant herein was doing business

4 in the County of Los Angeles, State of California.

5 FACTUAL ALLEGATIONS

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

7 inclusive, as though fully set forth herein.

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

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

10 Burbank, California to discuss a then-untitled film project, which came to be known as “They

11 Could Be Heroes” (the “Film”).

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

13 some of the biggest names in the music industry including but not limited to a number of celebrity

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

15 Waddy Wachtel, a session musician famous within the music industry for playing and collaborating

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

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

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

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

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

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

22 Wachtel at a rock and roll club then called “the Joint” at 8771 W. Pico Blvd, Los Angeles, CA

23 90035, during which segments these musicians would play some of the more famous songs on

24 which Wachtel had collaborated. Raboin explained to Simson that the greater the number of high

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

26 it would be for Raboin to raise investment funds needed to complete the Film.


1 10. During the initial meeting, Simson explained to Raboin that he needed Raboin’s

2 help to raise capital for the Film and to otherwise handle the business affairs of this project. Simson

3 explained that he had already conducted and filmed a number of these interviews himself under

4 the moniker “Gary Simson Productions,” which interviews and footage would be incorporated

5 into the Film. Simson estimated that the remainder of the Film would take approximately one and

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

7 continue their discussions.

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

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

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

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

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

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

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

15 use of forty (40) songs.

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

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

18 and comments to Plaintiffs, Plaintiff TCBH purchased thousands of dollars’ worth of equipment

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

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

21 time period, the parties regularly referred to one another as “business partners” with one other

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

23 Film.

24 13. The parties’ mutual business associate, Bogert, was initially involved in the Project.

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

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


1 Defendant Simson’ s lack of progress in securing and conducting the various musician interviews,

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

3 fees.

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

5 Placement Memorandum (“PPM”) wherein they outlined their joint business plan with respect to

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

7 the project which would be managed through a limited liability company (the “LLC”) they

8 intended to create.

9 15. In exchange for his work filming, editing and conducting most of the interviews, the

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

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

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

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

14 $93,000, near double the originally agreed-upon amount.

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

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

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

18 individuals initially served as co-Managers of TCBH. When Bogert left the project later that year,

19 Plaintiff Raboin and Defendant Simson became the sole remaining co-Managers of TCBH.

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

21 Operating Agreement for TCBH (the “Operating Agreement”), which generally memorialized the

22 terms of their operation and management of TCBH. A true and correct copy thereof is attached

23 hereto as Exhibit A.

24 18. Pursuant to the terms of the Operating Agreement, Plaintiff and Defendants agreed

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

26 ownership, and authorship of Plaintiff TCBH. Exhibit A. Pursuant to the terms of the Operating


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

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

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

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

5 formed and managed this entity. Exhibit A.

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

7 purposes. Simson personally reviewed and approved it prior to circulation. As set forth in this new

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

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

10 investment funds raised. Notwithstanding Raboin’ s best efforts, the parties were able to raise only

11 a scant $30,000 by the December 1, 2008 deadline.

12 20. During the first year of TCBH’s operations, Simson interviewed a number of

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

14 high-profile musician - George Thorogood.

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

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

17 They Could Be Heroes, LLC.

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

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

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

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

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

23 Raboin to cover these various Film-related expenses, which Plaintiff Raboin did.

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

25 the Film project. He again sent it to Simson, who personally reviewed and approved it beforehand.

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1 By and through this third PPM, the parties sought to raise $1 million by the end of 2009. This

2 time, Plaintiff Raboin was able to raise $180,000 from various investors.

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

4 2008, only two — Jackson Browne and Mick Fleetwood - were relatively high-profile musicians as

5 the parties had discussed.

6 25. In 2010, after working on the Film for over two years, Defendant Simson ‘ s interest

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

8 year, neither of whom was particularly well-known.

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

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

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

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

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

14 film in exchange for a flat fee, like the LLC ‘ s other third-party contractors. Raboin suggested that

15 Simson remove himself as co-Manager of TCBH, in place of which Raboin, acting on the LLC’s

16 behalf, would contract with Simson to serve as a producer/director on the project. As part of these

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

18 provided. Raboin also prepared a fourth PPM to seek another round of investor funding for the

19 Film, which he again sent to Simson beforehand for his review.

20 27. The parties henceforth commenced negotiations of the terms of Simson’s

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

22 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

24 as the sole remaining Manager of Plaintiff TCBH. Simson subsequently confirmed as much in e

25 mails and verbal communications with Plaintiff Raboin.

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

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

3 Nicks.

4 29. During this same year, Defendant Simson sharply increased his spending of TCBH

5 funds for purported Film-related expenses. When Raboin questioned Simson’s sudden “need” for

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

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

8 fifth PPM to seek yet another round of investor funding for the project.

9 30. During the first few months of 2012, the parties’ ongoing negotiations regarding the

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

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

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

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

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

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

16 which offers Plaintiff Raboin politely declined.

17 31. On or around March 23, 2012, Defendant Simson announced to Raboin that he was

18 “resigning” from Plaintiff TCBH as a member and as a producer/director and that he wanted

19 nothing further to do with Plaintiffs whatsoever. He further demanded that “all references” to his

20 name be removed from “the LLC’s website, literature, bank account(s), promotional materials,

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

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

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

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

25 Simson personally depleted the company’s funds through his sudden increase in “expense

26 reimbursements” in 2011.


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

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

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

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

5 Raboin assumed ownership of Simson’s membership share.

6 33. Notwithstanding the same, Defendant Simson refused to relinquish TCBH’s

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

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

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

10 possession, custody and control.

11 34. Rather than return LLC property to Plaintiff TCBH and relinquish his involvement

12 with the Film, Defendant Simson instead continued to conduct interviews for the Film on his own,

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

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

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

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

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

18 investors.

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

20 against Defendant Simson.

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1 FIRST CAUSE OF ACTION

2 BREACH OF WRITTEN CONTRACT

3 (By PLAINTIFFS AGAINST ALL DEFENDANTS)

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

5 as though fully set forth herein.

6 37. On or about May 16, 2008, Plaintiff Raboin and Defendant Simson entered into the

7 Operating Agreement, which generally memorialized the terms of their operation and management

8 of Plaintiff TCBH. Exhibit A.

9 38. Pursuant to the terms of the Operating Agreement, Plaintiffs and Defendant

10 Simson agreed to create, produce, film, edit, market and distribute the Film under the control and

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

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

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

14A.

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

16 terms of which are certain and enforceable.

17 40. Plaintiffs performed their obligations under the Operating Agreement, save those

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

19 breaches.

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

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

22 market and distribute the Film for his own personal use in breach of the Operating Agreement, and

23 in derogation of the rights of Plaintiffs and to their detriment.

24 42. Defendants’ breaches were undertaken without justification or excuse.

25 43. Plaintiffs’ damages are a certain, foreseeable, and measurable consequence of

26 Defendants’ breaches. As a direct and proximate result of said breaches, Plaintiffs have been


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

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

3 SECOND CAUSE OF ACTION

4 FRAUD

5 (By PLAINTIFF RABOIN AGAINST ALL DEFENDANTS)


7 as through fully set forth herein.

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

9 intentions to Plaintiff Raboin to induce him into going into business with Defendant, to induce him

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

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

12 their initial meetings in 2008, Defendant Simson repeatedly represented to Plaintiff Raboin that he

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

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

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

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

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

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

19 Film’s control and profits for himself.

20 46. Defendant’s representations and omissions of material fact were false, false at the

21 time they were made, and continued to be false through the date of filing this lawsuit.

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

23 false at the time they were made, and false through the point in time when he “resigned” from the

24 project in 2012, but he intentionally made them anyway. Defendant intentionally made these false

25 representations and omissions of material fact to induce Plaintiff into going into business with

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

2 filming, editing, marketing, and distribution of the Film.

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

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

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

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

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

8 ultimate detriment.

9 49. Plaintiff was reasonably justified in relying on the false representations and

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

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

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

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

14 ugly manner.

15 50. Plaintiff’s damages are a certain, foreseeable and measurable consequence of

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

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

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

19 interest thereon at the maximum legal rate.

20 51. Defendant’s actions were willful, fraudulent and/or malicious within the meaning

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

22 damages in an amount according to proof at trial.

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1 THIRD CAUSE OF ACTION

2 CONVERSION

3 (BY PLAINTIFFS AGAINST ALL DEFENDANTS)

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


6 53. Plaintiffs were at all times mention herein, and are currently, the rightful owners of

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

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

9 correspondence, notes, credit sequences, paperwork, papers, and derivative versions of the Film.

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

11 materials thereto rightfully belong to the Plaintiffs.

12 55. Plaintiffs are informed and believe and on that basis allege that Defendant Simson

13 has converted the Film and all related materials thereto to his own personal use.

14 56. Defendant Simson has ignored Plaintiffs’ requests that he relinquish control of the

15 Film and all related materials thereto to them.

16 57. Plaintiffs’ damages are a certain, foreseeable and measurable consequence of

17 Defendant’s wrongful conduct. As a direct and proximate result of Defendant’s wrongful conduct,

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

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

20 rate.


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


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1 FOURTH CAUSE OF ACTION

2 INTENTIONAL INTERFERENCE WITH

3 PROSPECTIVE ECONOMIC RELATIONS




7 60. Plaintiff Raboin and Defendant Simson agreed to create, produce, film, edit, market

8 and distribute the Film under the control and ownership of Plaintiff TCBH. Exhibit A. Pursuant

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

10 owned entirely by Plaintiff TCBH, for which purpose they formed this entity. Exhibit A.

11 61. After “resigning” from TCBH, Defendant Simson has continued to film, edit,

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

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

14 Kickstarter.com, in breach of the Operating Agreement. Defendant further has “renamed” the

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

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

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

18 well as solicit investment to fund the same.

19 62. Defendant Simson ‘ s actions were undertaken without justification or excuse.

20 63. Plaintiffs’ damages are a certain, foreseeable and measurable consequence of

21 Defendant’s wrongful conduct. As a direct and proximate result of Defendant’s wrongftil conduct,



24 rate.

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4 FIFTH CAUSE OF ACTION

5 BREACH OF FIDUCIARY DUTY


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

8 inclusive, as though fully set forth herein.

9 66. By virtue of his status as TCBH’ s co-manager pursuant to the terms of the

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

11 Raboin and PlaintiffTCBH.

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

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

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

15 expenditures, thereby causing TCBH ‘s account to become depleted; and (c) effectively “stealing”

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

17 Agreement, and to Plaintiffs’ detriment.

18 68. Plaintiffs’ damages are a certain, foreseeable, and measurable consequence of

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



22 rate.




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1 SIXTH CAUSE OF ACTION

2 DECLARATORY RELIEF

3 (BY PLAINTIFFS AGAINST ALL DEFENDANTS)



6 71. An actual controversy has arisen and now exists as between Plaintiffs and

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

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

9 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.

12 72. Plaintiffs are informed and believe, and on that basis 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 of the 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 in and to the

19 Film and all related materials thereto. A judicial determination is necessary and appropriate at this

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

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

22 possession of the Film and all related materials thereto.

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1 SEVENTH CAUSE OF ACTION

2 PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF

3 (B PLAINTIFFS AGAINST ALL DEFENDANTS)

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

5 though fully set forth herein.

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

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

8 damages.

9 76. Plaintiffs are entitled to preliminary and permanent injunctive relief enjoining and

10 prohibiting Defendant Simson, and any and all of his 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 or affecting

14 title to the Film in any manner.

15 PRAYER FOR RELIEF

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

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

18 1. For general and compensatory damages, including prejudgment interest, in

19 accordance with proof at the time of trial, in excess of $10 million;

20 2. For a declaration that the Operating Agreement has been breached by Defendant

21 Simson;

22 3. For a declaration that Plaintiffs own all rights, title and interest in and to the Film

23 and all related materials thereto;

24 4. For disgorgement/restitution of Defendant’s ill-gotten gains, including, but not

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

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

2 Plaintiffs’ possession, custody, and control;

3 5. For an Order enjoining and prohibiting Defendants and any and all of their agents,

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

5 from taking any action in connection with the Film inconsistent with Plaintiffs’

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

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

8 and from affecting title to the Film in any manner;

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

10 according to proof;

11 7. For Plaintiffs’ costs and attorneys’ fees, as permitted by law;

12 and

13 8. For such other and further relief as the Court may deem just and proper.

14 Dated: November 10, 2014 GRADSTEIN & MARZANO, P.C.HENRY GRAD STEIN

15 MARYANN R. MARZANOMATTHEW A. SLATER

16- and -

17FINK & STEINBERG

18 KEITH A. FINKS. KEVENS BERG

19 OLAFJ.M LE

20

21 By:

____________________________

OL . LLER22 Attorneys for Plaintiffs

THEY COULD BE HEROES, LLC,23 . and THOMAS RABOIN

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1 DEMAND FOR JURY TRIAL

2 Plaintiffs demand a trial by jury of all issues triable by a jury.

3 Dated: November 10, 2014 GRADSTEIN & MARZANO, P.C.HENRY GRADSTEIN


5- and -

6FINK & STEINBERG

7 KEITH A. FINKS. KEVEN STEINBERG

8 OLAFJ.MU

9

10 By:

__________________________

OLAFJ. MULL11 Attorneys for Plaintiffs

THEY COULD BE HEROES, LLC,12 and THOMAS RABOIN

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EXHIBIT A

They Could Be Heroes, LLC

Operating Agreement

A. TEllS OPERAT]NG AGREEMENT ofThey Could Be Heroes, LLC (the“Company”) is entered into as of the date set forth on the signature page hereto by each of thepersons named in Exhibit A hereto (referred to individually as a Member and collectively as theMembers).

B. The Members have formed a limited liability company under the Beverly-KilleaLimited Liability Company Act (“California Limited Liability Company Act”). The articles oforganization of the Company filed with the California Secretary of State are hereby adopted andapproved by the Members.

C. The Members enter into this agreement to provide for the governance of the Companyand the conduct of its business, and to specify their relative rights and obligations.

NOW ThEREFORE, the Members agree as follows:

ARTICLE 1: DEFINITIONS

Capitalized terms used in this agreement have the meanings specified in this Article orelsewhere in this agreement and when not so defined shall have the meanings set forth in theCalifornia Limited Liability Company Act.

“Capital Conthbution” means the amount of cash, property or services coniributed to theCompany.

“Company” means They Could Be Heroes, LLC, a California limited liability company.

“Member” means a Person who acquires Membership Interests, as permitted under thisagreement, and who becomes or remains a Member.

“Membership Interests” means either Percentage Interest or Units, based on howownership in the Company is expressed on Exhibit A.

“Percentage Interest” means a percent ownership in the Company entitling the holder toan e onomc and voting interest in the Company.

“Person’ means an individual, partnership, limited partnership, Irust, estate, association,corporation, limited liability company, or other entity, whether domestic or foreign.

“Unit” means a unit ofownership in the Company entitling the Member holding suchUnit to an economic interest and a voting interest in the Company.

ARTICLE 2: CAPITAL AND CAPITAL CONTRIBUTIONS

2.1 Initial Capital Contributions and Membership Interests. The CapitalContributions of the initial Members, as well as the Membership Interests of each Member, arelisted in ExhibiiA, which is made part of this agreement. Membership Interests in the Companymay be expressed either in Units or directly in Percentage Interests.

2.2 Subsequent Contributions. No Member shall be obligated to make additionalcapital contributions unless unanimously agreed by all the Members.

2.3 Capital Accounts. Individual capital accounts may be maintained for each Memberconsisting of that Member’s Capital Contribution, (1) increased by that Member’s share ofprofits, (2) decreased by that Member’s share of losses and company expenses, (3) decreased bythat Member’s distributions and (4) adjusted as required in accordance with applicable tax laws.

2.4 Interest. No interest shall be paid on Capital Contributions or on the balance of aMember’s capital account.

2.5 Limited Liability. A Member shall not be bound by, or be personally liable for, theexpenses, liabilities, or obligations of the company except as otherwise provided in thisagreement or as required by law.

ARTICLE 3: ALLOCATIONS AN]) DISTRIBUTIONS

3.1 Mloeations. The profits and losses of the Company and all items of Companyincome, gain, loss, deduction, or credit shall be allocated, for Company book purposes and fortax purposes, pro rata in proportion to relative Membership Interests held by each Member.

3.2 Distributions. The Company shall have the right to make distributions of cash andproperty to the Members pro rata based on the relative Membership Interests. The timing andamount of distributions shall be determined by the Managers in accordance with California law.

ARTICLE 4: MANAGEMENT

4.1 Management. The business of the Company shall be managed by one or moreManagers. The Members initially nominate and elect the person(s) set forth in Exhibit B to serveas Manager(s) of the Company. Managers shall serve at the pleasure ofthe Members and maybe elected or removed by Members holding a majority of the Membership Interests. Exhibit B

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shall be amended from time to time to reflect any changes in Managers. In the event ofa disputebetween Managers, final determination shall be made by a vote of the majority ofthe Managers.Any Manage’r may bind the Company in all matters in the ordinary course ofbusiness.

4.2 Meetings of Managers Regular meetings of the Managers are not required but maybe held at such time and place as the Managers deem necessary or desirable for the reasonablemanagement of the Company. Meetings may take place in person, by conference telephone orby any other means permitted under California law. In addition, actions may be taken without ameeting if all of the Managers sign a written consent reflecting the action taken.

4.3 Banking. The Managers are authorized to set up one or more bank accounts and areauthorized to execute any banking resolutions provided by the institution where the accounts arebeing set up. All funds of the Company shall be deposited in one or more accounts with one ormore recognized financial institutions in the name ofthe Company.

4.4 Officers. The Managers are authorized to appoint one or more officers from time totime. The officers shall hold office until their successors are chosen and qualified. Subject toany employment agreement entered into between the officer and the Company, an officer shallserve at the pleasure of the Managers. The current officers of the Company are listed on ExhibitC.

ARTICLE 5: ACCOUNTS AND ACCOUNTING

5.1 Accounts. Complete books of account ofthe Company’s business, in which eachCompany transaction shall be fully and accurately entered, shall be kept at the Company’sprincipal executive office and shall be open to inspection and copying on reasonable notice byany Member, Manager or their authorized representatives during normal business hours forpurposes reasonably related to the interest of such person as a Member or Manager. The costs ofsuch inspection and copying shall be borne by the Member or Manager.

52 Records. At all times during the term of existence of the Company, and beyond thatterm if the Managers deems it necessary, the Manigers shall keep or cause to be kept thefollowing:

(a) A current list of the full name and last known business or residence address ofeach Member and Manager, together with the Capital Contribution, the amount and termsof any agreed upon future Capital Contribution, and Membership Interest of eachMember;

(b) A copy ofthe articles of organization and any amendments;

(e) Copies of the Company’s federal, state, and local income tax or informationreturns and reports, ifany, for the six most recent taxable years; and

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(d) An original executed copy or counterparts of this agreement and anyamendments.

5.3 Income Tax Returns. Within 45 days after the end of each taxable year, theCompany shall use its best efforts to send to each of the Members all information necessary forthe Members to complete their federal and state income tax or information returns and a copy ofthe Company’s federal, state, and local income tax or infonnation returns for such year.

5.4 Tax Matters Member. Gary Simson shall act as tax matters member oftheCompany to represent the Company (at the Company’s expense) in connection with allexaminations of the Company’s affairs by tax authorities and to expend Company funds forprofessional services and costs associated therewith.

ARTICLE 6: MEMBERSHIP—MEETINGS, VOTING

6.1 Members and Voting Rights. Members shall have the right and power to vote onall matters with respect to which this agreement or California law requires or permits suchMember action. Voting shall be based on Membership Interests. Unless otherwise stated in thisAgreement or under California law, the vote ofthe Members holding a majority of theMembership Interests shall be required to approve or carry an action.

6.2 Meetings. Regular or annual meetings ofthe Members are not required but may beheld at such time and place as the Members deem necessary or desirable for the reasonablemanagement of the Company.

Meetings may be called by any member or members holding 10% or more oftheMembership Interests, for the purpose of addressing any matters on which the Members mayvote. A written notice shall be given not less than 10 days nor more than 60 days before the dateof the meeting to each member entitled to vote at the meeting. In any instance in which theapproval of the Members is required under this agreement, such approval may be obtained in anymanner permitted by California law, including by conference telephone or similarcommunications equipment. In addition, notice to any meeting may be waived, and any actionwhich could be taken at a meeting can be approved if a consent in writing, stating the action tobe taken, is signed by the holders of the ninnrnm Membership Interest needed to approve theaction.

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ARTICLE 7: WITHDRAWAL AND TRANSFERS OF MEMBERSHIP iNTERESTS

7.1 Withdrawal. A Member may withdraw from the Company prior to the dissolutionand winding up ofthe Company with the unanimous consent of the other Members, or ifsuchMember transfers or assigns all ofhis or her Membership Interests pursuant to Section 7.2below. A Member which withdraws pursuant to this Section 7.1 shall be entitled to a distributionin an amount equai to such Member’s Capital Account.

7.2 Restrictions on Transfer. A Member shall not transfer any Membership Interests,whether now owned or later acquired, unless Members holding a two-thirds majority oftheMembership Interests not subject to transfer consent to such transfer. A person may acquireMembership Interests directly from the Company upon the written consent of all Members. Aperson which acquires Membership Interests in accordance with this section shall be admitted asa Member of the Company after the person has agreed to be bound by the terms of this OperatingAgreement by executing a consent in the form of Exhibit D.

ARTICLE 8: DISSOLUTION AND WINDING UP

8.1 Dissolution. The Company shall be dissolved upon the first to occur ofthefollowing events:

(a) The vote of Members holding a majority of the outstanding MembershipInterests to dissolve the Company.

(b) Entry of a decree ofjudicial dissolution under Section 17351 ofthe CaliforniaCorporations Code.

(c) At any time there are no Members, provided that the Company is notdissolved and is not required to be wound up if, within 90 days after the occurrence oftheevent that terminated the continued membership of the last remaining Member, the legal.representative of the last remaining Member agrees in writing to continue the Companyand to the admission of the legal representative of such Member or its assignee to theCompany as a Member, effective as of the occurrence of the event that terminated thecontinued membership ofthe last remaining Member.

8.2 No automatic dissolution upon certain events. Neither the death, incapacity,disassociation, bankruptcy or withdrawal of a Member shall automatically cause a dissolution ofthe Company.

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ARTICLE .9: INDEMNIFICATION

9.1 Iiidemniflcation. The Company shall have the power to indemnify any Person whowas or is a party, or who is threatened to be made a party, to any proceeding by reason ofthe factthat such Person was or is a Member, Manager, officer, employee, or other agent of theCompany, or was or is serving at the request of the Company as a director, manager, officer,employee, or other agent of another limited liability company, corporation, parinership, jointventure, trust, or other enterprise, against expenses, judgments, lines, settlements, and otheramounts actually and reasonably incurred by such Person in connection with such proceeding, ifsuch Person acted in good faith and in a manner that such Person reasonably believed to be in thebest interests of the Company, and, in the case of a criminal proceeding, such Person had noreasonable cause to believe that the Person’s conduct was unlawful. The termination of anyproceeding byjudgment, order, settlement, conviction, or upon a plea ofnob contendere or itsequivalent, shall not, of itself, create a presumption that the Person did not act in good faith andin a manner that such Person reasonably believed to be in the best interests of the Company, orthat the Person had reasonable cause to believe that the Person’s conduct was unlawful.

To the extent that an agent of the Company has been successful on the merits in defenseof any proceeding, or in defense of any claim, issue, or matter in any such proceeding, the agentshall be indemnified against expenses actually and reasonably incurred in connection with theproceeding. In all other cases, indemnification shall be provided by the Company only ifauthorized in the specific case unanimously by all of the Members.

“Proceeding,” as used in this section, means any threatened, pending, or completed actionor proceeding, whether civil, criminal, administrative, or investigative.

9.2 Expenses. Expenses of each Person indemnified under this agreement actually andreasonably incurred in connection with the defense or settlement of a proceeding may be paid bythe Company in advance of the final disposition of such proceeding, as authorized by theMembers or Managers, as the case may be, who are not seeking indemnification upon receipt ofan undertaking by such Person to repay such amount unless it shall ultimately be determined thatsuch Person is entitled to be indemnified by the Company.

“Expenses,” as used in this section, includes, without limitation, attorney fees andexpenses of establishing a right to indemnification, if any, under this section.

ARTICLE 10: GENERAL PROVISIONS

10.1 Entire Agreement; Amendment. This agreement constitutes the whole and entireagreement ofthe parties with respect to the subject matter of this agreement, and it shall not bemodified or amended in any respect except by a written instrument executed by all oftheMembers. This agreement replaces and supersedes all prior written and oral agreements by andamong the Members.

10.2 Governing Law; Severability. This agreement shall be construed and enforced inaccordance with the internal laws of the State of California. If any provision of this agreement isdetermined by any court of competent jurisdiction or arbitrator to be invalid, illegal, orunenforceable to any extent, that provision shall, ifpossible, be construed as though morenarrowly drawn, ifa narrower construction would avoid such invalidity, illegality, orunenforceability or, if that is not possible, such provision shall, to the extent of such invalidity,illegality, or unenforceability, be severed, and the remaining provisions ofthis agreement shallremain in effect.

10.3 Benefit. This agreement shall be binding on and inure to the benefit of the partiesand their heirs, personal representatives, and permitted successors and assigns.

10.4 Number and Gender. Whenever used in this agreement, the singular shall includethe plural and the plural shall include the singular, and the neuter gender shall include the maleand female as well as a trust, finn, company, or corporation, all as the context and meaning ofthis agreement may require.

10.5 No Third Party Beneficiary. This agreement is made solely for the benefit of theparties to this agreement and their respective permitted successors and assigns, and no otherperson or entity shall have or acquire any right by virtue of this agreement.

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TN WITNESS RKOF, pC have executed or caused to be executed IbisOperating Agreement as ofthe date below.

Dated:___________

Tom Raboin

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EXHIBIT A

MEMBERS

The following persons are the initial Members of the Company, and their initial capitalcontributions and ownership is set forth below.

Name Capital Contribution ($) Percentage InterestGary Simson $0.00 35%Tom Rabom $0.00 15%

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EXHIBIT B

MANAGERS

The foilowing person(s) are elected as Manager(s) ofthe Conipauy

GuySTom Raboin

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EXHIBIT C

OW[CERS

The following person(s) are elected as officers ofthe Company:

Name of Officer TitleGary Simson PresidentTom Raboin Vice President

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EXHIBIT D

NEW MEMBER’S CONSENT

The undersigned agrees to be bound as a Member by the terms of the Operating Agreement ofThey Could Be Heroes, LLC as if the undersigned was a signatory thereof.

(Signature)

Name: -

Date:

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1 DEMAND FOR JURY TRIAL

2 Plaintiffs demand a trial by jury of all issues triable by a jury.

3 Dated: November 10, 2014 GRADSTEIN & MARZANO, P.C.HENRY GRADSTEIN


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6FINK & STEINBERG

7 KEITH A. FINKS. KEVEN STEINBERG

8 OLAFJ.MU

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10 By:

___________________________

OLAFJ. MULLII Attorneys for Plaintiffs

THEY COULD BE HEROES, LLC,12 and THOMAS RABOIN

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EXHIBIT D

NEW MEMBER’S CONSENT

The undersigned agrees to be bound as a Member by the terms of the Operating Agreement ofThey Could Be Heroes, LLC as if the undersigned was a signatory thereof.

(Signature)

Name: -

Date:

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they could be heroes v. gary simpson

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