Transcript
7/23/2019 Benson v. DJ Paul - Super High Me.pdf
http://slidepdf.com/reader/full/benson-v-dj-paul-super-high-mepdf 1/20
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Early 28
su l l ivan
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MTOflKCWATtAW
Devin A. McRae, State Bar Number 223239
dmcrae@earfysullivan.com
Kevin S. Sinclair, State Bar Number 254069
ksinclair@earfysullivan.com
Mark C.Humphrey, State Bar
Number
291718
mhumphrey@earfysullivan.
com
EARLY SULLIVAN WRIGHT
GIZER &
McRAE LLP
6420WilshireBoulevard, 17th Floor
Los
Angeles,
California 90048
Telephone: (323)301-4660
Facsimile: (323)301-4676
i \
FILED
Superior CourtOfCalifornia
CountyOfLosAngetti
DEC 18 2015
Sbem wj-u.*., c.woiuveOfiica/Cletk
y
^ f f u f t ^ V°W
Attorneys for Plaintiff
DOUG
BENSON
SUPERIOR
t>-31 KAartlUarvna/o
l
COURT OF THE STATE OF CALIFORN1
N
FOR THE COUNTY OFLOS ANGELES CENTRAL
ISTRI T
DOUG BENSON, CA |H^f?V» duu^(
Plaintiffs,
v s .
DAVID JOSHUA PAUL aka DJ PAUL, an
individual;ALEXCAMPBELL, an
individual;WABIPICTURES,INC.,a
suspended
California
corporation; PBR
STREETGANG, INC., a suspended
Californiacorporation; VIGORISH
PRODUCTIONS, LLC,a Californialimited
..
liability company;
and DOES 1-10,Kl*wt
Defendants,
and
FOUR TWENTY PARTNERS, LLC, a
wrongfully canceled
California
limited
liability company,
Nominal Defendant.
Case No.:
BC6 04 419
DOUG BENSON S DERIVATIVE AND
INDIVIDUAL
COMPLAINT FOR:
1. DECLARATORY RELIEF;
2.
BREACH
OF
FIDUCIARY
DUTY;
3. CONVERSION;
4. BREACH OF FIDUCIARY
DUTY;
5.
CONSTRUCTIVE
FRAUD;
6. FRAUDULENT
CONCEALMENT;
A N D
7.
BREACH OF CONTRACT
JURY TRIAL
DEMANDED
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120160.1
7/23/2019 Benson v. DJ Paul - Super High Me.pdf
http://slidepdf.com/reader/full/benson-v-dj-paul-super-high-mepdf 2/20
Plaintiff
Doug Benson ( Benson ) alleges as follows:
THE
SUPERWC.HME
DOCUMENTARY
1.
Benson
is
a
successful
stand-up comedian and actor
with
a
loyal
legion of
passionate
fans. Much
of
his comedy has
focused
on his
copious
use
of
cannabis.
In 2006,
High
Times magazine named Benson its Stoner ofthe Year.
2.
In 2007, just as Benson s career was taking
off,
Benson formed nominal defendant
Four Twenty
Partners, LLC
(the
Company )
with defendant
DJ
Paul
( Paul ),
defendant Alex
Campbell ( Campbell ) and non-party Michael Blieden ( Blieden ) fo r the purpose ofproducing
. adocumentary
entitled
Super High
Me
(the Documentary ). The Documentary sought to
10 document the
effects
of cannabis on Benson, by following him through
thirty
straight days of
cannabis-free living,
immediately
followed
by
thirty
straight days of
non-stop
use.
As
made clear
2 by the operating
agreement
for the Company
(the
Agreement ), the
production
of this
one
3
project was
the
sole
and
exclusive purpose for
the Company s
formation and existence.
14 3. The Agreement identified the original members
of
the Company as Benson,
.5 Michael Blieden on behalfof non-party The Claw, Inc.
(Blieden s
company,
hereinafter
Claw ),
16 Paul on
behalf
of defendant
Wabi
Pictures, Inc. (Paul s company, hereinafter Wabi ) and
7
Campbell
on
behalf
of
defendant
PBR
Streetgang,
Inc.
(Campbell s
company,
hereinafter
8
PBR ).
The
Agreement
also appointed Wabi and PBR as the
managers
of the
Company.
19 4. On March
2,2007,
the Company registered its
copyright
in the Documentary with
20
the United
States
Copyright Office under
Registration
Number
PAu003112331 (the
2 Registration ). The Company had previously registered
its
copyright in
the
screenplay for the
22
Documentary with
the United States Copyright Office
on December
28,2006 under Registration
23 Number PAu003124392.
24
5.
The
Company
released the Documentary
in
2008. It has
since
become
a
cult
25 classic.
26 PAUL AND
CAMPBELL
MISAPPROPRIATE thf DOCUMENTARY
27 6. Benson is
informed
and believes that, on or about
April 1,2011,
Paul
and
Campbell formed
a
limited liability
company
in California, defendant Vigorish Productions, LLC
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120160.1
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( Vigorish ).1
Upon the formation of
Vigorish, Benson
is informed and believes
that
Vigorish
began
to
unlawfully
exploit the copyrighted materials that were the subject ofthe Registration.
Paul
and
Campbell
never
disclosed to
Benson that
they had formed Vigorish,
nor did
they
disclose that their
new company
(i.e.,
Vigorish) had begun
to
exploit
the copyrighted works
belonging
to
their old company
(i.e.,
the
Company). Instead, they simply pretended that the
Documentary
had
ceased
to generate significant revenues.
This, ofcourse,
was
a
half-truth:
the
Documentary had ceased to generate significant
revenues/or
the Company,
because
Vigorish
had begun to
unlawfully
exploit the Company s intellectual
property.
7. Stated simply, for more
than
four years, the principals
of
the
Company s two
entity-managers
led Benson to
believe
that the Company was agoing
concern,
and that the
Company was
continuing to exploit its copyrighted
works. In
reality,
Benson s
fiduciaries had
misappropriated
the Company s key asset
(the Documentary) and were now actively engaged
in
a
conspiracy to
hide
this
fact from Benson.
BENSON
UNCOVERS THE
SCAM
8. More than six years after the Company had completed the one project which it was
formed to create, Campbell contacted Benson s manager several
times
in
2014
and again in early
2015
about Campbell
and
Paul
creating
and
releasing
a
new
documentary project entitled
Super
High Me
Redux (the
Redux ),
consisting ofunused footage
from
the Documentary. The Redux
would
detail
the
making of
the Documentary
(i.e.,
the one
project
in which
Benson
agreed to
participate)
from Campbell s and Paul s perspectives.
Campbell
made it
clear that
he
already
knew that Benson would notbein favor of the Redux, butasked Benson's manager totryto
enlist
him nonetheless.
It
was
repeatedly
made
clear
in
these conversations that
the
Redux would
happen with
orwithout Benson s cooperation.
9.
In
support
of
the Redux, Paul and
Campbell
created
a
trailer
consisting
of
unused
footage from the Documentary. Benson
did
not want
this
footage released (in a trailer
or
1 The significance ofthe name
selected by
Paul and Campbell for
their
new entity is not
lost
on
Benson. The
term vigorish
refers
to
the interest
charged by a
loan shark
ona
usurious
loan.
DOUG
BENSON S COMPLAINT
120160.1
7/23/2019 Benson v. DJ Paul - Super High Me.pdf
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otherwise) as he feared it wouldinjurehis reputation, alienate andupsethis fans, and potentially
causeirreparable harmto hiscarefully-cultivated career. Accordingly, Bensonrefused to consent
to suchan expansionof the Company's business. PaulandCampbell paid littleheedto Benson's
objections, claiming that the
Agreement
specifically authorized
them
(through the entities
they
controlled, Wabi and PBR) tomake the Redux. It did not.
10. AfterPaulandCampbell showed no signs of relenting, Benson filed a demand for
arbitrationonMay22,2015 with theAmericanArbitrationAssociation(the AAA ) pursuant to
Section23 of the Agreement (The Arbitration ). Among otherthings, Bensonsought a
declaration thatCampbell's andPaul's planned actions violated theAgreement.
11. Ina
preliminary conference call with the AAA,
an
attorney named
Richard
Albert
appeared
on
behalf
ofPaul and
Campbell,
but not
Wabi
and PBR as
he claimed that the
entities
no longer [existed].
According
to Albert (and unbeknownst to
Benson),
the
California
Franchise TaxBoard had suspended PBR'scorporate status in 2008, andWabi'scorporate status
i n 2 009.
12. Following this conference call, Benson, through
his
counsel, communicated with
Albert
multiple times regarding Paul s and
Campbell s purported right
tomake the Redux and
their
unauthorized
possession
of
Company property (i.e., the unused footage). Throughout these
conversations, Albert repeatedly maintained that hisclients
did
not require Benson s permission
to make the Redux because anyone can make a movie.
13. Then,
in
anticipation
of a
preliminary hearing with the arbitrator, Paul and
Campbell, represented by new counsel, objected to the AAA s jurisdiction,
this
time
revealing
thatWabi andPBRhaddissolved the
Company
in
2011
(several yearsafter the Franchise Tax
Board hadsuspended Wabi's
and
PBR'scorporate status). This
came
as a shock toBenson: At
no
time
prior
to
Paul and Campbell
asserting
this
objection
in
the
Arbitration
did anyone
notify
him thattheCompany no longer
existed,
much less seek his
consent
to
dissolve
theCompany, as
specifically required by the Agreement.
14. According to Paul and Campbell, because the
Company
had been dissolved, the
Agreement had effectively blinked out ofexistence. Thus, Paul
and
Campbell (and their
3
DOUG
BENSON S
COMPLAINT
120160.
7/23/2019 Benson v. DJ Paul - Super High Me.pdf
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suspended entities) refused to
participate in
the
Arbitration.
Benson
therefore
planned to
obtain
default reliefin theArbitration, and then enforce thatreliefthrough the courts.
15. Then, in August
2015,
Benson learned for
the first time that Paul
and Campbell
(allegedly
on
behalf
of
the
Company)
had
apparently
formed
Vigorish,
and
purported
to
assign
the
copyright in all of
the
intellectual
property
the Company owned to Vigorish, by way of
a
short
form assignment
(the
Assignment )
recorded with
the United States Copyright
Office
on
June
23, 2014.
16. The Assignment
was
executed
by
Paul and Campbell individually
as
Managers of
the Company
in
mid-June 2014, and purported
to
retroactively assign
the
copyright in
the
Documentary
effective April 1,2011 (i.e., two days after the Company
was allegedly
dissolved).
Benson suspects that
Paul and Campbell
created and recorded the Assignment
in
June
2014
because they had begun
to
formulate plans
for the
Redux.
THE
DISSOLUTION
OFTHECOMPANY TS A
NULLITY
17.
Under California law, Except
for filing an
application
for tax-exempt
status or
amending the
articles of incorporation
to
establish a
new
corporate
name,
a
suspended
corporation is
disqualified from exercising any
right, power or
privilege. Cal W. Bus. Servs.,
Inc.
v.
Corning Capital
Grp.,
221
Cal.
App.
4th 304, 310 (2013).
18.
By
the time that
Wabi
and PBR2 attempted to
dissolve the Company, the
California Franchise
Tax
Board had already suspended their corporate status. Thus, at the
time
that
Wabi and
PBR (i.e.,
the named
managers of
the
Company)
purported to dissolve the
Company, they
had
no
power
to
do anything (including dissolve the Company) until they revived
their corporate status.
19.
Furthermore, even ifWabi and PBR had
the basic power
to
function
as
corporations
in
California
in
2011
(which they did not),
paragraph 9(c)(vii)
of
the Agreement
2 The Agreement
purports
to name Paul and Campbell on
behalf
of'Wabi and PBR,
respectively,
£
the managers of the
Company. Paul
and Campbell are
thus agents
of Wabi and
PBR, such
that
Wabi
and
PBR are
bound
by Paul s and Campbell s actions and
are
thus the de
facto managers ofthe
Company.
4
DOUG
BENSON S
COMPLAINT
120160.1
7/23/2019 Benson v. DJ Paul - Super High Me.pdf
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MCRAE LLP
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made clear
that
the
managers could not
attempt todissolve or
withdraw
from
the Company
without the unanimous written consent of all of the members, including Benson.
20. Because Benson never gave any such consent, neither Wabi andPBR, northeir de
facto
alter
egos Paul and
Campbell,
could
dissolve
the Company.
Accordingly,
the
purported
dissolution was a nullity.
THE
ASSIGNMENT
IS ALSO
INVALID
21. As set forth
above,
WabiandPBRpurported to assignthe copyright in the
intellectual property
owned
bytheCompany to
Vigorish.
22. For the reasons set forth inthe above
paragraphs
18and19,by the
time
of the
alleged assignment (i.e.,
April 2011),
neither
Wabi nor PBRhad the ability under
California
law
to do anything, much
less assign aproperty
interest.
Apparently
for
this reason,
Paul and
Campbell purported to
sign
the
Assignment
as the
managers
ofthe
Company. However, neither
of those
individuals was
ever
appointed
to
act
as
the managers
of the
Company. For this reason,
alone, the Assignment is void.
23. Furthermore, paragraph 9(c)(vii) of
the Agreement
also prohibited the managers
from
assigning] rights
in
specific
Property [i.e., any
assets of
the Company], for
other
than
a
Company purpose without
the
unanimous
written consent
of
the members. Per
paragraph
4
of
the Agreement, the sole purpose
of
the Company was
to
develop the Documentary.
24. Assigning intellectual property
rights
to Vigorish
served
no
Company purpose,
and
therefore required
the
unanimous written consent
of the
members (which consent
was never
sought
or given).
As
such,
the
Assignment
was also invalid for this
reason,
as well.
BENSONMAY PROPERLYBRING A DERIVATIVE ACTIONTO VINDICATETHE
RIGHTS
OF
THE COMPANY
25. To
the
extent
required, Benson brings this
action derivatively
in
the
right and
for
the benefit of the
Company
to
redress
injuries suffered,
and
to
be
suffered by
the
Company as a
direct
result
ofWabi'sandPBR's violations of law. The
Company
is named as a nominal
defendant solely in a derivative capacity.
26.
Benson was
amember of
the Company
at the
time
of
the
wrongs of
which
he
DOUG
BENSON S
COMPLAINT
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complains, and
he has
continuously
remained
as
a
member
of
the
Company
since.
27.
Asset forth above, the Company
has
purportedly
been
dissolved. Pursuant to
California
law, the
shareholders or members ofa
dissolved
California corporation or
limited
liability
company
may
nonetheless maintain
a
derivative action in the
name
of
the
company,
notwithstanding its corporate status. Thus, Paul, Campbell, Wabi and PBR could
not
extinguish
the claims against them by simply purporting to cancel the
Company s corporate
status.
28. Benson has informed the managers in writing
of
the
ultimate
facts
of
each cause
of
action asserted against them herein.
29. Benson has not made
a
demand
on the
Company
to
institute this
action because
sucha demand would havebeena futile,
wasteful,
and
useless
act.
30. Demand
is
excused
because
Wabi
and PBR are the
only managers
of
the
Company
and face a substantial likelihood ofliability, so
they
are hardly disinterested or independent. It is
inconceivable that
Wabi
and PBR,
as managers
of the Company, would authorize aderivative
suit against
themselves
in order to prosecute
their
own egregious misconduct.
31. Additionally,
demand is excused
because
Wabi and PBR are
suspended California
corporations
and, under
California
law, they have
no
power to take any
action
for any business
purpose. Any
action
Paul and Campbell would
purport
to
take on
Wabi s
and
PBR s behalf
would
thus
be
ineffectual, further making
demand
futile.
32. Furthermore, demand is excused because
Wabi
and PBR are Paul s
and
Campbell s companies,
respectively,
and they
purport
to act on Wabi s and
PBR s.behalf. As
such,
Wabi
and PBR are
controlled by wrongdoers
who would
ultimately
decide
whether
to
authorize
a
derivative action, and it
is
inconceivable that they would authorize
a
suit against
themselves.
33.
Lastly, demand
is
excused because
Wabi s
and
PBR s
conduct
is
not
a
valid
exercise ofbusiness judgment.
They
have looted
the
Company s
sole
asset, purported to dissolve
the
Company
without unanimous consent
of
the members, and
have
unlawfully
exploited
Company
property, depriving
the Company
of
financial
benefit
as
aresult.
In
addition,
they
concealed
these
actions
from
the other members ofthe
Company for more
than four years. There
6
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is no legitimate business judgment involved in such activity
and,
as Wabi and
PBR
are liable
for
their own illegal
conduct
and
are
the
managers
of the
Company, demand
would be
futile.
JURISDICTION
AND
VENUE
34.
Pursuant
to
Article
VI,
Section
10
of
the
California Constitution,
subject
matter
jurisdiction is proper in the Superior Court
of
California for the
County ofLos
Angeles.
35. Pursuant to
Code
ofCivil
Procedure
Sections
392,395,
and 395.5, venue is
proper
in the
Superior Court of
California for the County
of
Los Angeles.
T H E P A R T I E S
36. Benson is an individual
residing
in Los
Angeles
County, California.
37.
Benson
is
informed
and
believes,
and
based
thereon alleges, that Paul is an
individual
residing
in
Los
Angeles
County, California.
38.
Benson
is informed and believes, and
based
thereon alleges,
that Campbell
is an
individual
residing inAlameda County, California.
39. Benson is informed and believes, and based thereon alleges, that
Wabi was a
corporation
organized
under
the laws
of California,
which
has since
been
suspended
by the
California Franchise Tax Board.
40. Benson is informed and believes, and based
thereon
alleges, that PBR
was
a
corporation
organized
under the laws
of California,
which has since been suspended by the
California Franchise Tax Board.
41. Benson is informed and believes, and based thereon alleges, that
the
Company was
a
limited liability company
organized
under
the
laws
ofCalifornia,
which Wabi
and
PBR
wrongfully purported
to dissolve.
42.
Benson
is
informed
and believes,
and
based thereon alleges,
that
Vigorish is a
limited liability
company organized under
the laws
of
California.
43. Benson
is
unaware
ofthe
true identities
of
the defendants sued by the
fictitious
names DOES 1-10. Benson will
amend
his pleading to identify these persons and entities by
their
true
names as
they
become known to Benson.
DOUG BENSON S COMPLAINT
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MCRAE LLP
ATTOKKtVSATlAW
F IR S T C A U SE OF A C T I O N
(Declaratory ReliefAgainst All Defendants Except Vigorish)
44. Bensonherebyincorporates by referenceeach
of
the allegationsmade in
paragraphs 1 through 43, inclusive, as though fully set forth herein.
45. Benson is informed and believes, and based thereon alleges, that an actual
controversy exists between himself, on the one hand, and Paul, Campbell, Wabi and PBR, on the
other hand, insofar as Benson contends, and Paul, Campbell, Wabi and PBR dispute, that the
purported dissolution
of
the Company is a nullity.
46. In light of this dispute,Benson seeks a judicial determinationthat the dissolution
of the
Company was
a
nullity,
andthattheCompany s corporate
status
should be
restored
and
revived, and that Bensonmaytake anyactionrequired by theCalifornia Secretary ofStateto
effect the restoration and revival of the Company.
SECOND CAUSE OF A C T I O N
(Breach of Fiduciary Duty
Owed
to the Company -
Against All Defendants Except Vigorish)
47. Bensonhereby incorporates by referenceeach of the allegationsmade in
i
paragraphs
1
through
46,
inclusive,
as
though
fully
set
forth herein.
48. In theircapacity as
managers, Wabi
and
PBR
owed
certain fiduciary
duties to the
Company, including duties of care and loyalty.
49. PaulandCampbell (whocontrolled Wabiand PBR)breached thosedutiesby,
among other things, attempting to misappropriate theCompany's sole asset- theintellectual
property rights- by purporting to assignthemtoVigorish for no consideration.
50. Benson is informed and believes, and based thereon alleges, that Wabi and PBR
also breached their fiduciary duties by failing to pay the Company's taxes.
51. As a result
of
these breaches, Benson is informed and believes that the Company
suffered damages.
52. Additionally, thesedefendants maliciously andoppressively actedwith a callous
disregard for the rightsof the
Company,
thereby exposing themto punitive
damages under
8
DOUG
B E N S O N S
C O M P L A I N T
120160.1
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H
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5
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2
22
h
IV
h
5
o
• 26
^ 27
O
RLY 28
sullivan
Wright
GIZER b
MCRAE LLP
ATTOONEHSATIAW
California
law.
53. Furthermore, Wabi and PBR
were not
authorized to act as
corporations
under
California law.
Therefore,
the
liability shield
ordinarily
afforded
to
shareholders
did not exist.
Accordingly,
Paul and
Campbell
are
jointly
and
severally liable
for the
torts
of
their corporate
instrumentalities.
54. Even if
suspension did
not
nullify
the liability shield, Benson is informed
and
believes that Wabi
and
PBRwere the mere alter-egos ofPaul and
Campbell. Benson is
informed
and believes that
Wabi
and
PBR
existed solely
as
liability shields for the purpose
ofthe
production of the
Documentary
(and formation
of
the Company), that neither
had any
separate
assets and that amanifest injustice would result unless the
Court
disregarded the corporate
form.
In addition to
monetary relief;
pursuant to Cal. Corp. Code §17706.02(e)(1) Benson hereby
applies, on behalf
of the
Company, for an order dissociating Wabi and PBR from the Company,
and terminating them asmanagers of the Company.
THIRTi C A U S E OF A C T I O N
(Conversion -
Against
All
Defendants)
55. Benson
hereby
incorporates by
reference
each of
the allegations
made
in
paragraphs
1
through
54,
inclusive,
as though fully set forth
herein.
56. As set forth above, the
Agreement
prohibited
anyone
from transferring the
Company s
intellectual property rights without the unanimous consent of
the
members. Because
such consent
was
not given, and because they were
never
appointed as managers of
the
Company,
Paul
and Campbell
lacked
the authority to enter into the Assignment on behalf
of
the Company.
57.
The Assignment amounted
to actionable conversion and misappropriation
of
the
Company s assets, resulting
in damages
to the Company.
58.
The
defendants
named
herein maliciously
and
oppressively acted with
a
callous
disregard
for the rights
of the Company,
thereby exposing them
to punitive damages under
California law.
59. For the reasons set forth
in
the above paragraphs 53 and
54,
Benson contends that
Paul
and
Campbell
are
liable for the wrongs
ofWabi
and PBR.
9 . .
DOUG BENSON S COMPLAINT
120160.1
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3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
* 23
IV
2 4
t,,:.
25
r ;.i
26
f v
2 7
1 -.'
EARLY 28
iSULUVAN
WRIGHT
GIZER
&
MCRAE LLP
ATTOBKRSATLAW
FOURTH CAUSE OF
A C T I O N
(Breach of Fiduciary Duty Owed to the
Members
-
Against All Defendants Except Vigorish)
60. Bensonhereby incorporatesby referenceeach
of
the allegationsmade in
paragraphs 1 through 59, inclusive, as though fully set forth herein.
61. In their capacityas managers, Wabiand PBRowedcertainfiduciary dutiesto the
members
of
the Company, includingduties of care and loyalty.
62. Wabiand PBR breachedthose duties by, among other things, purportingto
wrongfully
dissolve the
Company
without the unanimous written consent of the membership.
63. As a result of these breaches, Benson has.suffered damages.
64. Additionally, Wabi and
PBR
maliciously and oppressively acted witha callous
disregard
for
the rights
of the members in
the
Company,
thereby exposing
them
to punitive
damages under California law.
65. Forthe
reasons
set
forth
in the
above
paragraphs 53and54,
Benson
contends that
Pauland
Campbell
are
liable
for the
wrongs
of
Wabi
and
PBR.
66. As a result of these breaches, Benson has suffered damages.
FIFTH
C A U S E
OF
A C T I O N
(Constructive
Fraud
- AgainstAH Defendants ExceptVigorish)
67.
Benson hereby
incorporates by reference
each
ofthe
allegations
made in
paragraphs
1 through 66, inclusive, as though fully setforth herein.
68.
As
alleged
above,
Wabi,
PBR, Paul,
and
Campbell
owed
certain fiduciary duties to
Benson, in their capacity as agents of the Company.
69.
Asset
forth
in the above paragraphs 9 through 15, Paul, Campbell, Wabi
and PBR
concealed
from Benson
the
fact
that
they
hadboth
purported
to
dissolve
the
Company,
andthe
fact that they hadpurported to assignthe copyright toVigorish.
70. Up until
Benson
initiated the Arbitration and shortly thereafter,
Paul, Campbell,
Wabi
and PBRcontinually
made
statements and represented that theCompany
was
a going
concern and
purported to take actions onits
behalf
as its
managers. These
actions
included
10 .
DOUG
BENSON S
COMPLAINT
120160.1
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IV
O
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2 6
27
feARLY
28
SULLIVAN
WRIGHT
GIZER
6
MCRAE LLP
ATTORNEYS »T WW
licensing the Documentary and collecting
monies
and revenues
from
its exploitation.
71. Bensondid not learnof the purported dissolution of theCompany or thepurported
Assignmentuntil he initiatedthe Arbitration. Consequently, Bensonwasprevented from
discovering that his rights as a member
of
the Company had been violated, and that the
Company's sole asset had been stolen. Paul, Campbell, Wabi and PBR sought to deceive Benson
by concealing these facts from him.
72. Had these facts been disclosed, Benson would have taken action to protect his and
the Company's rights before these defendants compounded their misdeeds by unlawfully
exploiting the Documentary.
73. As a result, Benson suffered harm, which was substantially caused by Paul,
Campbell, Wabi and PBR.
74. As a result
of
Paul's, Campbell's, Wabi's and
PBR s
fraudulent conduct, Benson
is also entitled to exemplary and punitive damages under California law.
S I X T H C A U S E
OF A C T I O N
(Fraudulent Concealment - Against All
Defendants Except
Vigorish)
75. Benson hereby incorporates by reference each of the allegations made in
paragraphs 1 through 74, inclusive, as though fully set forth herein.
76. As set forth in the above paragraphs 9 through 15, Paul, Campbell, Wabi and PBR
knowingly and intentionally concealed from Benson the fact that they had both purported to
dissolve the Company, and the fact that they had purported to assign the copyright to Vigorish.
77. Up until Benson initiated the Arbitration and shortly thereafter, Paul, Campbell,
Wabi and PBR continually made statements and represented that the Company was a going
concern and purported to take actions on its behalfas its managers. These actions included
licensing the Documentary and collecting monies and revenues from its exploitation.
78. Benson did not learn of the purported dissolution of the Company or the purported
Assignment until he initiated the Arbitration. Consequently, Benson was prevented from
discovering that his rights as a member of the Company had been violated, and that the
Company's sole asset had been stolen. Paul, Campbell, Wabi and PBR sought to deceive Benson
11
DOUG B E N S O N S C O M P L A I N T
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UlGffl
tv
C
fv
C i
1
2
3
4
5
6
7
8
9
1
11
12
13
14
15
16
17
18
19
2
21
22
23
4
25
6
7
Early 28
St|LLIVAN
Wright
Gize r b
MCRAE LLP
ATTOKNEYSATIAW
byconcealing these facts fromhim.
79. Had these facts been disclosed, Bensonwould have taken action (i.e., Benson
would have sought to arbitrate or instituted other legal action) toprotect his and the
Company s
rights before these defendants compounded
their
misdeeds
by
unlawfully exploiting
the
Documentary.
80.
Asa result, Benson suffered harm, which was substantially caused byPaul,
Campbell, Wabi and PBR.
81. As a result ofPaul's,
Campbell s,
Wabi s and PBR s fraudulent conduct, Benson
isalso entitled toexemplary
and
punitive damages under
California
law.
SEVENTH
CAUSE OF
ACTION
(Breach of
Contract
-
Against
All
Defendants
Except
Vigorish)
82. Benson
hereby incorporates
by reference each
of
the
allegations
made in
paragraphs
1
through 81,
inclusive, as
though
fully
set forth herein.
83.
Benson,
Claw,
Wabi
and
PBR entered
into the
Agreement.
84.
Benson has
done
everything required of him bytheAgreement.
85.
Wabi
and
PBR have
breached
the
Agreement
by, among
other things, purporting
to
dissolve
the
Company
and
purporting
to
change
the
Company s
primary business
(i.e.,
by
threatening to make the Redux),
all
without the unanimous consent ofthe members.
86. As
a
result
ofWabi s
and PBR s breaches, Benson has suffered
damages.
87. For the reasons set forth in the above paragraphs 53 and 54, Benson contends that
Paul and
Campbell
are
liable
for the
wrongs of
Wabi and
PBR.
12
DOUG
BENSON S COMPLAINT
120160.1
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t-. I
I •
2
3
4
5
6
7
8
9
1
11
12
13
14
15
16
17
18
19
21
3
4
25
6
7
RLY
28
SULLIVAN
WRIGHT
GIZER b
MCRAE LLP
ATTORHCWATIAW
•
P R A Y E R FOR RELIEF
On the
First
Cause
o f
Action
1. Ajudicial
declaration that
the
dissolution
of the
Company
was a
nullity,
and
that
the
Company s
corporate status should
be
restored
and
revived,
and
that Benson
may
take
any
action
required
by theCalifornia Secretary of Stateto effectthe restoration and revival of the
Company.
On t he Second Cause
o f Action
2.
For
an
order pursuant
toCal. Corp. Code §
17706.02(e)(1) dissociating Wabi and
PBR
from
the Company, and terminating them
as
managers
of
the Company.
On the Second through Seventh Causes of Action
3. For actualdamages according to proof.
4. For punitivedamages, pursuant to Cal. Civ. Code§ 3294.
On All Causes o f
Action
5. For costs of suit.
6. For attorneys' fees and costs, to the extentthatany reliefgrantedarisesout of a
dispute on the Agreement.
7. For such other and
further
reliefas theCourtmay
deem
just or
appropriate.
J U R Y D E M A N D
Benson demands a trial byjury on all causes
of
action so triable.
Dated: December 18,2015
EARLY SULLIVAN WRIGHT
GIZER
& McRAE LLP
c
DEVIN
A.
MCRAE
Attorneys for Plaintiff
DOUG BENSON
13
DOUG
BENSON S COMPLAINT
120160.1
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CD
CD
late Bar miTTORNEYOR PARTY WITHOUT ATTORNEY Name. SlateBarnumber, and
address :
- Devin A.
McRae
(SBN 223239)
Kevin S. Sinclair (SBN 254069)
EARLY SULLIVAN WRIGHT GIZER & McRAE LLP
6420 Wilshire Blvd., 17th Floor, Los Angeles, CA 90048
telephone no.: 323-301-4660 faxno.: 323-301-4676
attorney for
mam . PlaintiffDougBenson
SUPERIOR COURT
OF CALIFORNIA, COUNTYOF LOS ANGELES
street
aodress:
111 N. H i ll S tr ee t
MAILING AOORESS:
CITY AND 2IP
CODE:
Los Angeles,
CA
90012
branch
name.
Central
District
CASE NAME:
Benson v. Paul , et al.
CM-010
FOR
OURT
US
ONLY
FILED
SuperiorCourt
OfCalifornia
CaantyOft*« Angeles
DEC
18 2015
Sherri jv^uu..,^ccuuve Officer/Clerk
By
Tjki <0fflJl0 d-~,
Deputy
Knstirawugay
CIVIL
CASE COVER SHEET
[7] Unlimited
Limited
(Amount (Amount
demanded demanded is
exceeds 25,000) 25,000 or
less)
Complex Case Designation
I I Counter I I
Joinder
Filed withfirstappearance by defendant
(Cal. Rules of Court, rule 3.402)
CASENI
JUOGE:
DEPT:
6 0 4
419
Items 1- 6
below
must be completed
see
instructions on page 2 .
1. Check on e box below for the case type that best describes this case:
Auto
Tor t
IZD Auto (22)
I I
Uninsured motorist
(46)
Other
PI/PD/WD
(Personal
Injury/Property
Oamage/Wrongflil Death) Tort
CD
Asbestos (04)
I I Product liability (24)
I I
Medical
malpractice
(45)
Other PI/PD/WD
(23)
Non-PI/PD/WD
(Other)
Tort
Contrac t
I
J Breach
ofcontract/warranty (06)
I I
Rule
3.740
collections
(09)
I I
Other collections
(09)
I I Insurance
coverage (18)
I I
Other
contract
(37)
Real Property
I I Eminentdomain/Inverse
condemnation (14)
I I Wrongful eviction (33)
Business
tort/unfair business practice (07)
LZD
Other real
property
(26)
I I
Civil
lights (08)
I I Defamation
(13)
Fraud
(16)
L_J
Intellectual property
(19)
I I
Professional negligence
(25)
CZl Other
non-Pl/PD/WD
tort
(35)
5 l o ymen t
Wrongfultermination (36)
I I Other employment (15)
TZHs
his
case I I is
L/J
isnot complex under
rule
3.400 ofthe
California
Rules of
Court. If
thecase iscomplex,
mark
the
factors requiring exceptional judicial management:
d. I ILarge
number
ofwitnesses
e. I ICoordination
with
related actions pendingin one ormore courts
in
other counties,
states,
orcountries, or
in
a federal court
f.
I I
Substantial postjudgment judicial supervision
c. I / Ipunitive
Unlawful
Deta iner
Commercial (31)
d ] Residential
(32)
Drugs (38)
Judic ia l
Review
I I Asset
forfeiture
(05)
I I
Petition re: arbitration award (11)
I i Writ ofmandate (02)
| |
Other
judicial review (39)
Provisionally Complex Civil Litigation
(Cal.
Rules
of
Court, rules
3.400-3.403)
I I
Antitrust/Trade
regulation (03)
I I
Construction
defect
(10)
CZ]
Mass tort (40)
I I Securities
litigation (28)
I I Environmental/Toxic
tort
(30)
I I
Insurance coverage claims arising from the
above
listed provisionally
complex case
types (41)
Enforcement of Judgment
I I Enforcement ofjudgment
(20)
Miscellaneous
Civil
Complaint
RICO
(27)
I I
Other complaint not specified
above)
(42)
Miscellaneous
Civil
Petition
I 1
Partnership and corporate governance (21)
I I
Other petition not specified above) (43)
a. I I
Large number
of
separately represented parties
b. I I Extensive
motion
practice
raising
difficult or novel
issues
that
will be time-consuming to resolve
c. I I Substantial amountofdocumentary evidence
3.
Remedies sought check all that
apply : a.CZl
monetary b.GZH nonmonetary; declaratory orinjunctive relief
4. Number
of
causes of action specify):
~~J
l~5.
This
case
I I is I / I is not a class action suit.
> 6. if there are any known related cases, file and serve a noticeof related case. You
mayuse
form
.Date: December 18, 2015 \
Devin
A.McRae
*
(TYPE OR
PRINT NAME)
FormAdopted lor Mandatory Use
Judicial Council of Catlfomfa
CM-O10(R«v. July1.20071
NOTICE
Plaintiff must file this cover sheetwiththe firstpaper filed inthe actionor proceeding (except small claimscases or cases
filed
underthe Probate Code,
Family
Code, or
Welfare
and
Institutions Code).
(Cal. Rulesof Court, rule3.220.)
Failure
to file mayresult
in sanct ions .
File this
cover
sheet in addition to any
cover
sheet required by local court rule.
If this case is complex under rule 3.400 et seq. ofthe CaliforniaRules ofCourt, you must serve a copy ofthis cover sheet on all
other parties to the action or proceeding.
« Unless this is a collections
case
under rule 3.740 or a complex case, this cover sheet will be used forstatistical purposes only
CIVIL CASE
COVER SHEET
1 0 2
™a«
Cat. Rules ofCourt. rUes2.30. 3.220.3.400-3.403, 3.740:
Cal.
Standards
of Judicial Administration, std. 3.10
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the case
is complex.
Auto
Tor t
Auto (22)-Personal Injury/Property
Damage/Wrongful Death
Uninsured Motorist (46)
{ifthe
case involves
an
uninsured
motorist claim subject to
art>itratk>n, check this item
instead ofAuto
Other PI/PD/WD (Personal Injury/
Property Damage/Wrongful Death)
Tort
Asbestos (04)
Asbestos Property Damage
Asbestos Personal Injury/
Wrongful Death
Product Liability
not asbestos or
toxic/environmental (24)
Medical Malpractice (45)
Medical
Malpractice-
Physicians &Surgeons
Other Professional
Health
Care
Malpractice
Other
PI/POAfVD
(23)
Premises Liability (e.g., slip
and
fall)
Intentional Bodily Injury/PD/WD
(e.g., assault, vandalism)
Intentional
Infliction
of
Emotional
Distress
Negligent Infliction of
Emotional
Distress
Other
PI/PD/WD
Non-Pi/PD/WD (Other)
Tort
Business Tort/Unfair Business
Practice
(07)
; Civil Rights (e.g., discrimination,
• ' false arrest)
notcivil
k
i harassment
(08)
' ' Defamation(e.g., slander,
libel)
(13)
. F raud (16)
H- IntellectualProperty (19)
Professional Negligence (25)
,.: Legal Malpractice
Other Professional
Malpractice
not medical or legal
k ; Other Non-PI/POAA/D Tort (35)
Employment
C [i
Wrongful Termination
(36)
Other Employment (15)
h-
CM-010[Rev. July 1.20071
CASE TYPES
AND EXAMPLES
Contrac t
Breach of Contract/Warranty (06)
Breach of Rental/Lease
Contract
not unlawfuldetainer
or wrongful eviction
Contract/WarrantyBreach-Seller
Plaintiff
not fraudornegligence
Negligent Breach of Contract/
Warranty
Other Breach of Contract/Warranty
Collections (e.g., money owed,
open
book accounts) (09)
Collection Case-Seller
Plaintiff
Other Promissory Note/Collections
Case
Insurance Coverage
notprovisionally
complex (18)
AutoSubrogation
Other Coverage
Other Contract (37)
Contractual Fraud
Other
Contract Dispute
Real
Property
Eminent
Domain/inverse
Condemnation (14)
Wrongful Eviction (33)
Other Real Property (e.g., quiet title)(26)
Writ of
Possession
of Real Property
Mortgage Foreclosure
Quiet
Title
Other Real Property not eminent
domain, landlordAenant, or
foreclosure
Unlawful Deta ine r
Commercial (31)
Residential (32)
Drugs (38)
ifthe case involves illegal
drugs, check this item;otherwise,
report
as
Commercialor Residential
Judicial
Review
Asset
Forfeiture (05)
Petition Re: Arbitration Award (11)
Writ of Mandate (02)
Writ-Administrative Mandamus
Writ-Mandamus on
Limited
Court
Case Matter
Writ-Other
Limited
Cour t Case
Review
Other
Judicial
Review
(39)
Rev iew of
Health Officer Order
Notice of Appeal-Labor
Commissioner Appeals
CIVIL C A S E C O VE R S HE E T
INSTRUCTIONS
ON HOW
TO COMPLETE
THE
COVER SHEET CM-010
To Plaintiffs and Others Filing First Papers. If you are
filing
a
first
paper
(for
example, a complaint) in a civil case, you must
complete
and file,
along
with yourfirst paper,the
Civil
CaseCover Sheetcontained onpage 1. This information
will
be usedtocompile
statisticsabout the types and numbers of cases
filed. You
must complete items 1
through
6 on the sheet. In
item
1, youmust check
one box forthe case typethat best describes the case. Ifthe case fits botha general and a more specifictype ofcase listedin item 1,
check the more specificone. Ifthe case has
multiple
causes of
action,
check the box that best indicates the primary cause of
action.
T6assist you
in
completing thesheet,
examples
ofthe cases thatbelong
under
each case type
in
item 1are
provided
below. A
cover
sheet must be
filed only with
your
initial
paper.
Failure
to
file
a coversheet with the
first
paper
filed
in a
civil
case may subjecta
party,
its counsel, or both to sanctions under rules 2.30
and
3.220 of the California Rules of Court.
To Parties in Rule 3.740 Collections Cases. A collections case under rule 3.740 is defined as an action for recoveryof money
owed in a
sum stated
to
be
certain that is not more than 25,000, exclusive of interest and attorney's fees, arising from a transaction in
whichproperty, services, or money was acquired on credit. A collections case does not include an action seeking the
following:
(1) tort
damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of
attachment. The identification of a case as a rule 3740 collections case on this
form
means that itwill be exempt
from
the general
time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections
case
will be subject to the requirements for service and obtaining a judgment inrule 3.740.
To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case CoverSheet to designate whether the
case
is complex. Ifa plaintiff believes the
case
is complex under rule 3.400 of the CaliforniaRules of Court, this must be indicated by
completing the appropriate boxes in items 1 and 2. Ifa plaintiffdesignates a case
as
complex, the
cover
sheet must be served with the
complaint on all parties to the action. A defendant may file and serve no later than the time of its first
appearance
a joinder in the
plaintiffs designation, a counter-designation that the case is not complex, or, ifthe plaintiffhas made no designation, a designation that
Provisionally
Complex
Civil Litigation (Cal.
Rules of Court Rules 3.400-3.403)
Antitrust/Trade Regulation (03)
Construction Defect (10)
Claims Involving Mass Tort (40)
Securities Litigation (28)
Environmental/Toxic Tort (30)
Insurance Coverage Claims
arising fromprovisionallycomplex
case type listed above (41)
Enforcement of Judgment
Enforcement of Judgment (20)
Abstract of Judgment (Out of
County)
Confession of Judgment
non-
domes tic relations
Sister State
Judgment.
Administrative Agency Award
not unpaid taxes
Petition/Certification of Entry of
Judgment on Unpaid Taxes
Other
Enforcement of
Judgment
Case
Miscellaneous Civil Complaint
RICO (27)
Other Complaint not specified
above (42)
Declaratory Relief Only
Injunctive Relief Only(non-
harassment
Mechanics
Lien
Other
Commercial Complaint
Case non-totVnon-complex
Other CivilComplaint
non-tort/non-complex
Miscellaneous Civil
Petition
Partnership
and
Corporate
Governance
(21)
Other Petition
not specified
above
(43)
Civil
Harassment
Workplace Violence
Elder/Dependent
Adult
Abuse
Election Contes t
Petition for Name Change
Petition
for
Relief
F rom La te
Claim
Other
Civil Petition
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