(age 1 of 33) EE @ 00 @ 452\ | Mactn J. Berab (State Bar No. 47419) 1 |). Raymond Hamrick, III (State Bar No, 93821) sei LED, [Charles C. Rainey, (State Bar No. 294754) “County of Los Angeles | ack Aug 24 2017 | Olive Ave. Ste, 3 || Burbank, California 91505 -+1,818.763,5292 (ph) Shera R Capes Bee Otek 4 |] 41:818:763.2308 (fax) By. 5 |] Attoreys for Plainsitt eee «|| WILLIAMS. NYE i CPK 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 ~ ) : 11 |] WILLIAMS. NYE a/k/a BILLNYE, an) CaseNo: BO 67373 6 R individual, ee meee) be COMPLAINT FOR DAMAGES FOR: | gs8 2 Plaintiff, 3% 4 big } a WALT DISNEY COMPANY, a Delaware } 1. FRAUDULENT CONCEALMENT 5 15 || corporation, BUENA VISTA * ) 2. FALSE PROMISE g TELEVISION, LLC, a California limited} 3. BREACH OF CONTRACT 254 16 |jiisbility company fila BUENA VISTA) 4. BREACH OF FIDUCIARY DUTY a TELEVISIONS, INC., TOUCHSTONE ) $8. ACCOUNTING 17 | TELEVISION PRODUCTIONS, INC, 2) 6, BREACH OF THE COVENANT OF Delaware corporation; ABC }” GOOD FAITH OF FAIR DEALING 18 || TELEVISION, INC., a New York } 7. MONIES HAD AND RECEIVED corporation; DISNEY EDUCATIONAL 19 || PRODUCTIONS, INC,, a California JURY TRIAL DEMANDED corporation; THE DISNEY MOVIE. 20 || CLUB, entity unknown; BUENA VISTA ' HOME ENTERTAINMENT, INC, 2 21 | Calfoia corporation and DOES | 2 |] tuoust 100, inclusive, 3 Ba he Defendants, ) ae EB o ge 23 2 jitiff WILLIAM S, NYE a/k/a BILL NYE (the “Plaintiff” ee R Sand ia ’ 2 25 ||through his counsel, A. Raymond Hamrick, Martin J. Barab, and Charles C, Pd of| 3 © 26 [Hammack & BvaNs i, complains and alleges as follows against Defendants BUENA-V BTA | 6 ~ 27 ||TELEVISION, LLC fa BUENA VISTA TELEVISION, INC, THE WALT [SREY 28 | COMPANY, TOUCHSTONE TELEVISION PRODUCTIONS, ABCETELEWISION: INC., ‘COMPLAINT FOR DAMAGES 1 ‘ocd 1 Pages 1 - Dee 10 = 1797933605 ~ Doe type = OnEoan 2 ot 39 vo @ ® 1 |] DISNEY EDUCATIONAL PRODUCTIONS, INC., DISNEY MOVIE CLUB, and DOES 1 through 100 (collectively, the “Defendants”: NATURE OF THE ACTION 1, The present action arises ftom the Defendants’ failure to account for and pay the Plaintiff his owed share of revenue participation from the sale, distribution and other exploitation of a children’s television program, which the Plaintiff co-created and starred in throughout much of the 1990s, entitled “Bill Nye the Science Guy.” JURISDICTION AND VENUE wear auveun 2. All of the parties to this case reside or conduct business in the County of Los 10 }] Angeles in the State of California. 11 || 3. The acts and conduct of the Defendants, as alleged herein, were committed | 12 |] principally inthe County of Los Angeles inthe Sete of California ae 13 || 4 Plaintiff claims damages exceeding Twenty. Five Thousand dollars | & i 14 |} (USD$25,000.00), making this matter properly filed under this Court's unlimited jurisdiction. 223 15] 5. Venue tsproperin the County of Los Angeles in accordance with Seton 395()of| el 16 |} the California. Code of Civil Procedure, because each of the Defendants routinely conducts 2 17 |) business within the County of Los Angeles, and the events alleged herein that gave rise to the : 18 |} present action principally occurred within the County of Los Angeles. 19 PARTIES 20 || 6, Plaintiff WILLIAM S. NYE (hereafter refered to as “Plaintiff” or “Mr, Nye") is an 21 || individual and resident of the County of Los Angeles inthe State of California. 22|| 7. Defendant WALT DISNEY COMPANY (hereafter referred to as “WDC”) is a 23 || Delaware corporation, registered with the California Secretary of State as a foreign corporation 24 || conducting business within the State of California, operating its business in Los Angeles County at 500 S. Buena Vista Street, Burbank, California 91521. 26 || 8 Defendant BUENA VISTA TELEVISION, LLC (hereafter, referred to as “BVT”) is 27 |} a California limited liability company, operating its business in Los Angeles County at 500 S. 28 || Buena Vista Street, Burbank, California 91521. * LUWTVT YO a ‘COMPLATNT FOR DAMAGES 2 ‘ect 1 Paged 2 - Doo 1D = 1707913608 ~ Doo Type = OnIERrage 3 of 33) te @ e i 1 |} 9. Defendant TOUCHSTONE TELEVISION “PRODUCTIONS, INC. (bereafter, referred to as “TTP”) is a Delaware corporation, registered with the California Secretary of| State as 2 foreign corporation conducting business within the State of Califomia, operating its business in Los Angeles County at 500 8. Buena Vista Street, Burbank, California 91521. 10. Defendant ABC TELEVISION, INC. (hereafter, referred to as “ABC”), is a New ‘York corporation, registered as a foreign corporation conducting business within the State of| \California, with its registered office located at 18 W. 7" Street, Ste. 930, Los Angeles, Catifornia 90017 i Defendant DISNEY EDUCATIONAL PRODUCTIONS, INC. (hereafter referred to 10 j]as DEP") is a California corporation, with its principal place of business located in Los 11 |} Angeles County at $00 8. Buena Vista Street, Burbank, California 91521, 12 |] 12 Defendant DISNEY MOVIE CLUB (hereafter referred fo as “DMC") is a business 13 |Jentity or division of unknown structure, conducting business within the State of California, in 91508, 14 ||County of Los Angeles, at 500 8. Buena Vista Street, Burbank, California 91521; despite its 15 |} best efforts, Plaintiff's counsel was unable to determine the business structure of DMC; while 16 ||DMC operates a website, DisneyMovieClub.com, and lists its primary offices as located in HAMRICK & EVANS, LLP £2600 W, Olive Ave. Suite 1020 ‘Burbank, Cal 17 |[Burbank, California, there is no listing with the California Secretary of State for any entity by 18 ||the name “Disney Movie Club,” nor is there any fictitious firm name on file with the County of 19 |]Los Angeles for any business operating under the name “Disney Movie Club,” nor is there any 20 || federally registered trademark forthe phrase “Disney Movie Club.” 21 || 13, Defendant BUENA VISTA HOME ENTERTAINMENT, INC, a California 22 || corporation (hereafter referred to as “BVHE”) is a California corporation, with its principal 23 || place of business located in Los Angeles County at 500 S, Buena Vista Street, Burbank, 24 || California 91521 25 |] 14. Plaintiff is unaware of the true namés, capacities, or lability of Defendants DOES 1 LTeT9T/8O 26 || through 100, inclusive, and therefore sues such Defendants by their fictitious names,’ Plaintif| 27 || shall endeavor to amend this Complaint to allege Such Defendants’ true names, capacities, and 28 |) liability when the Plaintiff has ascertained such information, Plaintiff is informed and believes, ‘COMPLAINT FOR DAMAGES 3 ‘Doct 1 Fager § - Doe XD = 1707983605 - Doo type = omeRage 4 of 39 vos e e and based thereon alleges, that DOES 1 through 100, inclusive, and each of them, are in some manner liable to Plaintiff and responsible forall or some of the damages alleged herein. 15. Unless otherwise stated herein, at all times relevant inthis action, each Defendant, ‘including those fictitiously named, was the agent, servant, subsidiary, parent, employer, employee, partner, joint venture, or surety of the othe? Defendants and acting within the scope of said relationship with the knowledge and consent or ratification of each of the other Defendants in committing the acts alleged herein, 16. Plaintiff is informed and believes and thereon alleges that Defendants WDC, TTP, JABC, DEP, DMC, and cach of them, are “affiliates” of BVT, as the terms “affiliate” and 10 ||“affiliated company” are used in that certain BVT Agreement (referenced and defined below). 11 }| 17, Plaintiff is informed and believes and thereon alleges that Defendants BVT, TTP, 12 || ABC, DEP, and DMC, are subsidiaries of WDC, subject to WDC’s ultimate authority and 8 13 || control and routinely relying upon shared professional and administrative resources, including, 14 || without limitation, legal and accounting resources. 15 COMMON ALLEGATIONS 16 || A. THE DEVELOPMENT OF THE BNSG SERIES 17|| 18. The Piaintiff, Mr. Nyc, is a well-known television personality, widely recognized as HAMRICK & EVANS, LL 2600 W. Olive Ave, Suite 1020 ‘Burbank, Caliorsia 9 18 ||the host and co-creator of the television program “Bill Nye the Science Guy” — a child:en’s 19 |} educational program that originally aired from 1992 to 1997 (hereafter, referred to as “BNSG”). FH 20} 19. Mr. Nye developed the tte character persona for BNSG over several years prior to 21 || the launch ofthe television program, while performing on stage, radio and television in and 22 |} around the Seattle area, 23] 20. Mr. Nye ised his background as a mechanical engineer and alumnus of Comell 24 || University with an enthusiastic interest in science, along with the lessons he'd learned as a, 25 | comedic performer on stage and television, to develop the presentational style of the BNSG LGU PT BO 26 |} persona, 27] 21. The Plaintff-is the sole registered owner of the federal trademark “Bill Nye the 28 || Science Guy” (Registration Numnber: 2010276). ‘COMPLAINT FOR DAMAGES 4 ‘ook 4 Page 4 ~ Boe 1D 707933605 - Doe type = OnEceage 8 of 33) Lo ® e 22. In the late 1980's and early 1990's, Mr. Nye made multiplé appearances on “Almost Live,” a sketch comedy show, broadcasted on NBC's Seattle affiliate station, KING-TV. 23. While working on “Almost Live,” Mr. Nye became acquainted with producers James. McKenna (“McKenna”) and Erren Gotlieb (“Gottlieb”), 24, in 1992, in collaboration with McKenna and Gottlieb, Mr. Nye developed the BNSG television program as a children’s educational program to be broadcast over the Public! Broadcasting Service (PBS), substantially underwritten by the Department of Energy and the| [National Science Foundation, and produced in partnership with Seattle PBS affiliate KCTS-TV KCTS”). 10 25. In o about late 1992, Nye, McKenna, Gottlieb, and KCTS further partnered with 11 |/Rabbit Ears Productions, Inc, (“Rabbit Ears”) to in developing the BNSG television show, g 12 26. Nyc, McKenna, Gottlieb, KCTS-TV and Rabbit Bars are hereafter collectively 38 13 || referred to as the “BNSG Owners.” 14 |] © 27. Om or about March 31 1993, BVT entered into a written agreement with the BNSG 3 15 |]Owners, whereby BVT agreed to promote, market and distribute the BNSG television series i 16 ||(the “BVT Agreement”), i 17 |B. THE BVT AGREEMEN’ 18 || 28. Under the terms of the BVT Agreement, the BNSG Owners are collectively entitled 19 || to Fifty Percent (50%) of the Net Profits derived from the exploitation of the BNSG series. HAMRICK & EVANS, LLP 20 |). 29. The further allocation of Net Profits amongst the BNSG Owners was defined in a 21 || separate agreement amongst the BNSG Owners, dated April 13, 1993 (the “Owner Allocation, 22 ||Agreement’, in which the BNSG Owners agreed to further divide their Fifty Percent (50%) 23 ||share of the Net Profits as follows: ‘Thirty ‘Three Percent (33%) to Mr. Nye; Twenty Five 24 || percent (25%) to be shared between McKenna and Gottlieb; Twenty One Percent (21%) to KCTS, and Twenty One Percent (21%) to Rabbit Ears, 26 || 30. Otherwise stated, reading the BVT Agreeiment and the Owner Allocation Agreement togetter, Mr. Nye is entitled to no Jess than Sixteen and % percent (16.5%) of One Hundred 28 || (100%) of the Net Profits from the BNSG series. LVL PEO R ‘COMPLAINT FOR DAMAGES 5 eee eee Deck 1 Pages § - Doo XD = 1707932605 - Zoe Type = OERrage 6 of 33) 1 || 31. The BVT Agreement defines “Net Profits” as receipts remaining from Gross Receipts after deducting certain further defined amounts: (1) distribution fees, (2) direct expenses, (3) interest on monies expended on production costs calculated at one percent (1%) annually, (4) the production costs of the series, and (5) other Net Profit participations not to exceed ten percent (10%) of the Net Profit, : 32, The BVT Agreement defines “Gross Receipts” as “all sums actually received by, or credited to, BVT from all sources from the exploitation of rights to the Series, including [nonrefundable security deposits, nonrefundable advances, and other nonrefundable sums, but Ce a awk en less refundable security deposits, refundable advances, and other refundable sums received but 10 ||not yet eamed or forfeited, and amounts received and thereafter refunded,” but then goes on to 11 ||carve out two (2) exceptions to the foregoing definition of “Gross Receipts”; one exception. 12 ||relating to Video Device exploitation by affiliated companies, and another relating to the 38g 13 ||exploitaion of certain subsidiary rights (.e., merchandising, commercial tie-ins, inter-active é J 14 || media) cared out by affiliated companies. ; # 15 a. The BVT Agreement carves out an exception for “Video Device” exploitation in 2 Tis! cases where BVT grants one ofits “affliated companies te right to manufacture BR oy and distibute such Video Devices”. Under such limited circumstances, the 18 Gross Receipts are defined as a “royalty in an amount equal to Twenty Percent ' 19 (20%) of the sums actually received by such affliated company (less taxes, : 20 credits and returns) from its distribution thereof.” The BVT Agreement defines a Video Device as “audio visual cassette, video disc, or any similar device 2 ‘embodying the Series.” B b. The BVT Agreement carves out an exception for the exploitation of subsidiary Bu tights, where BVT grant one of its “affiliated companies the right to manufacture 3 and distribute such products.” Gross Receipts is defined as “all sums from all 3 sources, to BVT and its affiliated companies excluding retail sales (but including 25 6 2 the wholesale selling price paid by a retailer), less refundable security deposits, 8 refundable advances, other refundable sums received but not yet eamed or ‘COMPLAINT FOR DAMAGES 5 ee ‘Dood £ Pagel € - Boo 1D = 1707932605 - Doo type ~ omrage 7 of 33) aaa ® e ' L forfeited and amounts received and thereafter refunded and all costs associated 1 2 with producing the product or service including but not limited to advertising, 3 promotion, manufacturing, and distribution expenses.” 4 |] 33. Under the BVT Agreement, BVT Agreed to provide the BNSG Owners quarterly 5 |] accounting statements commencing six (6) months after the initial broadcast ofthe first episode 6 || of the BNSG series “and for so long as Gross Receipts are received by BVT hereunder.” 7 34. The BVT Agreement further grants Mr. Nye and the other owners of BNSG the right 8 ||t0 examine the books and records of BVT to account for and audit the accuracy of statements 9 |Jend payments issued by BVT in relation tothe owner's profit participation, 10 |} 35. ‘The BVT Agreement is governed by the laws of the State of California. IL |} 36. Plaintiff is informed and believes that BVT has assigned and/or delegated all or| 12 || some of the rights and/or responsibilities granted under the BVT Agreement to one or more of| 13 || Defendants WDC, TTP, ABC, DEP, and/or DOES 1-5, inclusive, 14 || C. BNSG’S BROADCAST AND RECEPTION * 15 |; 37, BNSG was an unquestionable success. ‘ave, Sule 1620, Worn 91505 16 || 38. BNSG would eventually become the first television program concurrently aired in 17 || national syndication while also broadcast on PBS. [HAMRICK & EVANS, LLP @ 19 lla Television Critics Association award, and a host of other industry awards for technical 20 |} achievements. 21}) 40. BVT eventually distributed BNSG on home video (VHS and DVD) through 22 || Defendants DEP, DMC, BVHE, and other dis | 18} 39. BNSG received nineteen (19) Emmy awards, two (2) Environmental Media awards, : fs and distribution outlets, and the show 1 23 ||remains, even today, available for sale in DVD format from most major retailers (i.e., Walmart, 8 24 || Target, Best Buy, Barnes & Noble, Et.) 1 25 || 41. As recently as 2013, as part of the twentieth anniversary of BNSG’s frst broadcast, "3 26 || WDC promoted the sale of DVD box sets of the series, retailing for approximately One ™ 27 |) Thousand Five Hundred dollars (USDS1,500.00). 28 “COMPLAINT FOR DAMAGES 7 ‘Dood 4 Pagel 7 ~ Dee ED = 1707992606 ~ Doo type = OnIER(eage 8 of 33) 1 |} 42. In addition to its success on television and home video, BNSG is exhibited in [classrooms throughout the United States; the series is even marketed and sold to educators with supporting materials and lesson plans; BNSG remains a flagship product of Disney Educational Productions, a division of WDC that sells educational media and other content to teachers and educators throughout the worl. 43. BNSG still, to this day, nearly twenty-five (25) years since its first broadcast, airs in Jimited syndication; meanwhile, Thirty-One (31) of BNSG’s One Hundred (100) episodes are! curently available on Netflix and Apple iTunes, /D. THE “ACCOUNTING ERROR” OF 2008 10 || 44, In or about April 2008, BVT sent Mr. Nye a statement for the preceding calendar 11 |] year and a corresponding participation payment in the amount of Five Hundred Eighty Five| 12 |} Thousand One Hundred Twenty Three dollars (USDS$585,123.00), representing Mr. Nye’s share | 13 || of Net Profit participation in BNSG. 14 |} 45. However, just a few months later, on July 22, 2008, BVT sent Mr. Nye a second| 15 || letter retracting its prior calculation of Mr. Nye’s Net Profit share, claiming that BVT had made | 16 || mistake in its prior calculation, and that Mr. Nye now owed BVT Four Hundred Ninety Six 17 || Thousand One Hundred Bleven dollars (USDS496,111) HAMRICK & EVANS, LLP 2600 W. Olive Ave, Sue 1020 ‘Berean, Coola 91805 18 || 46. The disturbing size of the supposed “accounting error,” coupled with the seeming | 19 ||indifference of both BVT and WDC, left Mr. Nye suspi 20 || statements he had been receiving from BVT over the years. 21 || 47. Moreover, as of July 22, 2008, BVT ceased making any further royalty or s of the veracity of the secounting 22 | participation payments to Mr. Nye, insisting that he fits repay the amount ellegedly owed from 23 || the “overpayment” 48. On: October 9, 2009, after more than a year of futile discussions with BVT, Mr. Nye’s attorney, Andrew Salter, dispatched a letter to Alan Braverman, the Sr. Executive Vice 26 ||President and General Counsel of WDC, in which Salter detailed specific objections to the LUT PTI ¥E 27 ||accounting, challenged the validity of BVI's payment calculations, and demanded that WDC 28 ||come to the negotiating table in good faith to resolve this matter. ‘COMPLAINT FOR DAMAGES 8 ‘Dect 1 Page# 0 - Doo 1D = 1707932605 - Doo type = oma(age 9 of 23) foe e ® 1 49. — Unfortunately, WDC did not come to the negotiating table, nor did it act in good faith to resolve the dispute; instead, WDC encouraged Mr. Nye to launch an audit that WDC had no intention of ever accommodating. 50. For several months, Salter and Braverman exchanged letters, but WDC was wholly intransigent, not only insisting that its accounting and the accounting of its subsidiary BVT was infallible, but that Mr. Nye must either repay hundreds of thousands of dollars to BVT or allow BVT to deduct those monies from his future participation earnings. 51. Meanwhile, the statements provided by BVT appeared dubious, in that the statements claimed BNSG had prossed revenues of over Twenty Six Million dollars 10 || (USD826,000,000.00) but had somehow also accumulated deductions of over Twenty Million 11 || dollars (USD$20,000,000.00). 12 || 52. The foregoing deductions were especially suspicious given that underwriting funds 13 |] from the Department of Energy, the National Science Foundation, and other organizations 14 || covered the vast majority of BNSG's costs of production. 15 |} 93. Nevertheless, BVT and WDC steadfastly refused to negotiate, instead taunting Mr. 16 |{Nye to audit BVT's accounting, knowing that BVT and WDC would make such an audit unduly HAMRICK & EVANS, LLP 12600 W. Olive Ave, Suite 1020 ‘Bsbank, Celiforie 91505 17 j{burdensome, costly, and tine consuming. 18 || E, DERENDANTS’ INTENTIONAL INTERFERENCE WITH PLAINTIFF'S 19 RIGHT TO AN AUDIT 20 |} 54. Finally, after more than four (4) years of futile negotiations, attempting to obtain 21 |Jrecords and accounting to explain the accounting error from 2008, Mr. Nye was left with no 22. ||choice but to hire a professional auditor to examine BVT's records, 23 |] 55. In December of 2013, Mr. Nye engaged the services of Compliance Auditors 24 li Hurewite and Company (the “Auditor’). : 56. Then, on January 8 2014, Mr. Nye’s legal counsel sent BVT formal, written notice 26 ||of Mr. Nye’s intent to inspect and audit BVT's records pertaining to the accounting of all LUBTet ee aR 21 || proceeds and expenses from BNSG. 28 ‘COMPLAINT FOR DAMAGES 9 ‘och 4 Pageh 9 - Doo XD = 1707993605 - Doe Type ~ OnIER(rage 10 of 33) ‘| 1] 57. Howeves, the following mont, more tana week afer the Autor contacted WDC, requesting available dates to conduct its Geldwork, Naney Jenkins from WDC notified the ‘Auditor that WDC was backlogged with auits and tat Mr, Nye would have fo waitin line for three () to four @) years before commencing the audit 58.___ After some discussion with Mr. Ne's legal counsel, Ms. Jenkins finally agreed that the Auaitor could contact her later in 2014 at which time she might be abe to give the Auditor more concrete dates. 59, While WDC offered to provide Mr. Nye’s legal counsel with a tolling leter agreeing to toll any applicable statutes of limitations or other deadlines pending the audit, counsel for 10 || WDC sought to insert language in the letter that was detrimental to Nye, ‘ 11 |] 60. Only afer months of difficult negotiations between the parties did WDC finally 12 |) agree to provide Mr. Nye’s legal counsel with a tolling letter that actually tolled the applicable if 13 || deadlines and statutes of limitations, a s a 14 ]] 61. Moreover, when the Auditor contacted Ms. Jenkins later that yea, in October, she 335-15 joi the Auditor to vit another yar, indicating that she was unable to provide ny fieldwork i 4 16 |] dates, no matter how far offinto the future they might be; instead, she told the Auditor to check 17 || back with her some time in late 2015 (seven years after the original incident that triggered the 18 || audit). 19 |) 62, However, aftr significant pressing from Mr. Nye’s legal counsel and his Aueitor, 20 || Ms. Jenkins finally offered the Auditor a tentative start dat for the adit to commence in April, 21 /}2016. 2 63. Still, WDC fought over the Janguage of the tolling letter for the next year, 23 || consstenty trying to insert language designed to preclude Mr. Nye fom raising any material B 24 || claims against BVT's accounting : B25 || "64. Moreover as of April 1, 2016, WDC had sil yet to provide the Auditor with any 13 26 || contnned dats forthe audit to commence or carry out fieldwork. 7 : 28 ‘COMPLAINT FOR DAMAGES to ect 1 Pages 1€ - Doe 1 = 1707953605 - Dee Type = OTRerage 12 of 38) L 65. Finally, on April 25, 2016, Mario Lopez, a Director at WDC, dispatched a letter to Mr. Nye’s legal counsel stating thatthe audit may commence the following week, on May 2, 2016. 66. However, when the audit finally commenced, the Defendants failed to engage in the process in good faith. : 67. Time and again, the Auditor would request documents that WDC and BVT would simply fai to produce; in some instances, WDC and/or BVT would offer to provide documents at a later date, while in other instances WDC would claim that the documents were beyond the wee rae eon scope of the audit; however, even those documents that were promised at a later date were 10 || typically omitted from later production. 11 || 68. After many months of uncooperative exchanges with WDC and BVT, and numerous 12 |[requests, the Aucitor was ultimately denied access to documents essential to carrying out its 328 15 | examination, including, bt ot mite tothe flowing: Sy ou ‘The BNSG license agreement between WDC/BVT and Netix; 238 5 ». ‘The BNSG license agreement between WDC/BVT and Apple iTunes; al 16 c. The BNSG license agreement between WDC/BVT and the second Symphony of | as ‘Science music education video by composer John Boswell; 18 || 4. Any information (including any agreements between WDC/BVT and the book » publisher Basic Books) related to revenue WDC ot BVT received for BNSG 20 books; 21|| "—e Any detailed sales or income data for WDC's sales on its websites, such as n www DisneyStore.com, www DisneyEducationalProducts com 3 | f. Any detailed sales or income data for Disney Educational Products’ sales or - Ball other exploitation of BNSG; B as f 8. Any detailed sales or income data of affiliated entities related tothe sale, lcease 2 26 or other exploitation of BNSG, including Video Device sales of affiliated “or entities; and 2B ‘h. Any agreement that govern sales of BNSG to BVT’s affiliate DMC, ‘COMBLAINT FOR DAMAGES n Dect 2 Pagel 12. ~ Boo 2D = 3707533605 - Dee type ~ onerage 32 of 3) 69. Without gaining access to necessary documents, including the foregoing, the Auditor ‘was unable fo complete the Audit. 70. Nevertheless, even in the absence of these essential documents, even without the ability to fully examine the accounting and related records of the Defendants, or their a ited entities, using the limited documentation provided, the Auditor was able to provide the Plaintiff ‘with preliminary, draft findings in late June of 2017, in which the Auditor identified hundreds of thousands of dollars in underreported payments owed to Mr. Nye. ‘71. The auditor has since conducted further analysis of the li wee raw een ited documentation 10 || furnished by the Defendants and determined that the underreported payments owed to Mr. Nye 11 tora! no tess than Nine Million Three Hundred Fifty Thousand Five Hundred Sixty dollars 12 |] cusDs9,350,565.00), 13 ‘72. — Prior to receiving the Auditor's analysis, Mr. Nye was unaware of the Defendants’ 14 || underreporting of payments and further unaware of the damage he had suffered as a result, 15 || 73. ‘The full extent of the damage is still unknown at this time, given that WDC, BVT 16 ||and the other Defendants filed to cooperate with the Auditor's requesis for the documentation HAMRICK & BVANS, LLP 17 {reasonably necessary to assess such damage. 18] 74. Nevertheless, with the limited documentation still available to the Auditor, the 19 |] Auditor identified statements where BVT had applied the wrong rates for distribution fees, 20 || skewing the Net Profits calculation in BVT"s favor. 2 ‘75. The Auditor identified statements where BVT mischaracterized revenues to 22. || substantially reduce the Net Profit participation of the BNSG Owners. 23 |) 76. The Auditor noted royalties that went unzeported, : 4 Ti. The Auditor noted how BVT had improperly deducted foreign withholding taxes as ‘an expense against the Net Profits, even though those taxes would have been credited back R through BVT’s parent company, and even though taking such a deduction from the Net Profits LTUTset/ 88 R 27 || directly contradicted the plain language of the BVT Agreement. 28 ‘COMPLAINT FOR DAMAGES 2 ‘Doo 1 Page# 22 ~ Doe 10 = 1707939605 - Doe Type = oTHER(age 13 of 33) 1]| 78. The foregoing estimate of underreported payments is merely the sum initially 2 |)identified by the Auditor based upon the limited documentation that WDC disclosed during the 3 |] aut : 4 || 79. The Plaintft is informed and believes that the actual sum owed is substantially 5 |) larger. 6] 80. The Defendants, and each of them, have engaged in an ongoing, deliberate 7 || conspiracy to deceive Mr. Nye and the BNSG Owners, and deprive them of their rightly owed 8 || share of the Net Profits from the BNSG series and derivative works. 9|| 81. One glaring example of this is the way in which BVT recorded “Video Device” 10 || sates. 11 || 82. Asalready noted, the term “Video Device” was defined in the BVT Agreement as an 12 ||audio visual cassette, video disc, or any similar device embodying the Series.” eer 13 |] 83. Moreover, under the BVT Agreement, BVT could pay the BNSG owners a Be 14 {| substantially lower calculation of Gross Receipts (20% versus 100%) if it used an affiliated 3 8 15 | entity to “manufacture and distribute such Video Devices.” : Hl 16 || 84. In further breach of the BVT Agreement, BVT characterized its license of streaming 17 |[rights to Netflix as a Video Device sale manufactured by an affiliated entity, wrongfully 18 || calculating the Gross Revenue at just 20% (as opposed to 100%), thereby paying Mr. Nye one 19 || fith (/2) of what he was actually owed. 20 || 85. Moreover, the Auditor noticed tht a substantial potion of BNSG Video Device 21 jjsales derived from invoices issued to an entity called the “Disney Movie Club” (“DMC”), selling the videos to DMC at a purchase price of just Six and "/4go dollars (USD$6.76). 23 || 86. The Auditor further observed that BVT was calculating the Gross Revenue from the B24 ||sales to DMC by taking just Twenty Percent (20%) ofthe total purchase price paid by DMC to] S25 |[Bvr. © 26] 87. However, the BVT Agrecinent, as already noted herein, specifically stated thatthe er ; ion of Mr. Nye’s Nat Profit participation in Video Device sales from affiliated entities, 28 | Sricrsane ooh 2 Paget 13 - Boa 1b = 1707933605 - Doo sype = OnmRrage 34 of 33) 10 : n | 2 Bf | 15 6 HAMRICK & EVANS, LLP a 18 19 2 n 23} 4 2s 6 LIBT9T ee 28 like DMC, is not based upon the revenues received by BVT, but is instead based upon the revenues received by the affiliated entity, 88, As such, the 20% calculation of Gross Revenue cannot be besed upon invoices paid by DMC to BVT, but instead must be based upon the amounts paid to DMC by third party customers. 89; The Auditor wanted BVT and WDC to provide records and sales data for DMC; however, BVT and WDC refused to provide such data, insisting that it was beyond the scope of| the audit, : 90. WDC is a farge, publicly traded company with a well-staffed and well-trained accounting department, 91. ‘The Defendants were well aware of their wrongdoing. 92. The Defendants, and each of them, willfully decsived Mr. Nye and the other BNSG (Owners in a deliberate effort to deprive the BNSG Owners of their rightly eared share of Not Profits from the BNSG series. _ 93. ‘The Defendants, and each of them, further carried out their deception by withholding and concealing documents during the audit to deprive the Auditor the ability to fully and fairly assess the entirety of the damage caused to the BNSG Owners. FIRST CAUSE OF ACTION (Fraudulent Concealment) (Against all Defendants and DORS 1-50) 94, Plaintiff re-alleges and incorporates herein by reference, all of the previous paragraphs ofthis Complaint, as though fully set forth herein. 95. The Defendants, and each of them, possessed exclusive knowledge not known to the Plaintiff, namely the revenues and expenses related to and arising out of the license, sale and | exploitation of the BNSG series and its derivative works. 96. Defendant BVT, and its assignees and/or delegees, incliding, without limitation, TTP, ABC, and WDC, acted as a fiduciary to the Plaintiff, whereby the parties to the BVT Agreement all shared in the proceeds and profits of from the BNSG series, and the Plaintiff ‘COMPLAINT FOR DAMAGES 4 ‘Boob 4 Pageh 14 ~ Doo 1D = 1707832605 - Dec Type = OMEN(age 35 of 33) 2600 W. Olive Ave, Suite 1020 ‘Burbank, California 91505, HAMRICK & EVANS, LLP ETOT Ptr eo ce raueen 10 il 2 B 14 1s 16 "7 18 19 20 a 2 4 Py 28 ® e Jentrusted the Defendants, and their related’ entities, to properly account for all expenses, revenues and otber accounting related to andor arising ut of the license, sale and exploitation lof the BNSG series and its derivative works, and to further distribute to the Plaintiff his contractually owed share of the Net Profits. 97, The Defendants, and each of them, failed, and continue to fail, to disclose, and have ! actively concealed and/or suppressed, material facts related to the revenues and expenses and other accounting related to and/or arising out of the license, sale and exploitation of the BNSG series and its derivative works, 98. Defendants, and each of them, colluded and conspired to prevent the Plaintiff fom receiving a full, accurate and reasonable accounting of the ‘evenues and expenses of the BNSG series and its derivative works, 99, Defendant BVT, and its successors and assigns, including, without limitation, ‘Defendants WDC, TTP and ABC, concealed revenues eamed by the BNSG series and its derivative works. 100, Defendants DEP and DMC, as well as other WDC divisions and subsidiaries, and DOES 1-50, inclusive, actively assisted and cooperated with BVT, WDC, TIP and ABC in fraudulently concealing from the Plaintiff the actual revenues, expenses and other accounting information related to the BNSG series, even, in some instances, going so far as to construct falsified invoices and accounting statements, 101. Other than the limited information recently revealed to the Plaintiff by the Auditor, Plaintiff has never had nor does he now have knowledge of the many facts relating to accounting and payment of Net Profits owed to him from the exploitation of the BNSG series and related derivative works; prior to the filing of the present lawsuit, Plaintiff had reasonably relied upon Defendants’ statements and intentional concealment of pertinent facts, trusting ‘Defendants’ well-staffed and well-trained accounting personnel to provide full, accurate and complete accounting of the revenues from the BNSG series and related derivative works. 102.. Plaintiff is informed and believes and thereon alleges that as a direct and proximate result of the Defendants” fraudulent concealment, Plaintiff has suffered damages in the amount ‘COMPLAINT FOR DAMAGES: 5 ‘Dood 1 Pagel 44 ~ Doo 1D = 1707933605 ~ Doc type = ommR(@age 16 of 30) 1 fJof not less than Nine Million Three Hundred Fifty Thousand Five ‘Hundred Sixty dollars (USD$9,350,565.00), the final amount to be proven at trial. 103. Plaintiff is further informed and believes and thereon alleges that the Defendants, ‘through their acts of fraudulent concealment, ensiched themselves, at the expense of the BNSG ‘Owners, obtaining ill-gotten profits of not less than Twenty Eight Million Fifty One Thousand ‘Six Hundred Ninety Five dollars (USD$28,051,695.00).. 104, Plaintiff is further informed and believes and thereon alleges that the Defendants? foregoing fraudulent conduct entities the Plaintiff to an award of punitive and/or exemplary we araunren Jdamages pursuant to Califomia Civil Code § 3294, in en amount appropiiate to punish and set 10 ||n example of Defendants, and each of them, and to deter such conduct inthe future, the exact 11 ||amount of such punitive damages subject to proof at the time of ral ace SECOND CAUSE OF ACTION 438 3 (Fraudulent Inducement/False Promise) 3 pa 4 (Against WDC, BVT, TTP, ABC) BZE 15 ]] 105. Plain cesalleges and incorporates herein by reference, all of the previous B 16 | paragraphs of this Complaint, as though fully set forth herein, 3° 17 106. Defendants WDC, BVT, TTP, and ABC, and each of them, in accounting 18 |}statements, in correspondence, and in other documentation, intentionally misrepresented to the 19 || Plaintiff and the other BSG Owners the revenues and expenses related to and arising out of the 20 ||license, sale, and other exploitation of the BNSG series. ‘COMPLATNT FOR DAMAGES 6 21 || 107. Such misrepresentations included, without limitation: 2 i a. the intentional mischaracterization of Gross Receipts as the sale of “Video 23) Devices” manufactured by third party ailites, when such receipts were clearly Bull red from other sources, such as Intemet streaming third party licenses, with Pas |i the intention of depriving the Plaintiff of his share of the Net Profits of the 3 26 || BNSG series and related derivative works; San) ’. the calculation of Gtoss Receipts from invoices issued fo affiliated entities when 2B , such calculations should have been based upon the tota! sales revenues received ‘ack 1 Paged 16 ~ boa XD = 2707932605 - boo type = ontage 17 of 33) a ® e 1 by those affiliated entities, in a deliberate attempt to undervalue the revenues | 2 received fiom BNSG and, in tum, deprive the Plaintiff of his share of the Net 3 Profits of the BNSG series and related derivative works; ! 4 ¢, the intentional misclassification of distribution costs, so as to apply a higher rate 5 distribution fee against the Gross Receipts of BNSG, thereby reducing the total 6 ‘Net Profits calculation and ultimately depriving the Plaintiff and the other BNSG 7 Owners of their respective shares of the Net Profits of the BNSG series and | 8 related derivative works; | 9 4. ‘The intentional mistepresentation to the BNSG Owners of certain expenses, such : 10 as foreign tax withholding, as deductible from the Net Profits calculation -of ! n BNSG when the Defendants knew such expenses to be erroneous and disallowed t eeeee ia ‘under the BVT Agreement; : 2 B e. the intentional misrepresentation of expenses and revenues related to the Z gs 4 distribution, sale, licensing and other exploitation of the BNSG series and related 233 15 derivative works, in a deliberate effort to deprive the Plaintiff and the other | 16 1 BNSG Overs of their respective shares of the Net Profits of the BNSG series BR | and related derivative works; 18 £ the intentional failure to réport sales of BNSG Video Devices to non-Disney- 19 | owned businesses and entities based on 100% of its Gross Receipts received; 20 g. the intentional failure to report retail sales of BNSG Video Devices and 2 merchandise by affiliated businesses and entities, in a deliberate effort to deprive 2 ‘the Plaintiff and the other BNSG Owners of their respective shares of the Net 3B Profits ofthe BNSG series and related derivative works; and Bom h, the deduction from Mr. Nye’s share of Net Profits of certain commissions and B os other expenses thet the Defendants knew to be non-deductible per the BVT | 2 26 || ‘Agreement. | “a7 || 108. ‘The Pini is informed and believes, and thereon alleges, that Defendants WDC, 28 ||and BVT, and each of them, rade the foregoing mistepresentations on an ongoing, usually CONFLATNTFORDINAGES Lo. ‘Dock 4 Paged £7 ~ Boo HD ~ 1707933605 ~ Doo Type = OTHER“HAMRICK & EVANS, LLP AVOUT 88 weer aneun 10 | 12 3 4 15 16 7 8 19 a 23 25 26 2 28 annual basis, year after year, since the very first statement issued pursuant to the BVT Agreement. 109, Defendants TTP and ABC, as the agents, assignées and/or delegees of BVT, made the same foregoing mistepresentations in accounting statements and ecmespondence periodically delivered tothe Plaintiff and the other BNSG Owners. 110. Defendants, and each of them, were fully aware that said accounting statements and correspondence delivered tothe Plaintiff contained numerous false representations. 111. Defendants, and each of them, made these false representations to the PI deliberate effort to. induce the Plaintiff to accept Net Profit participation payments from the ina BNSG series that were substantially lower than the amounts actually owed to the Plaintiff under the BVT Agreement. 112, Plaintiff, to his detriment, reasonably relied upon the Defendants false representations in receiving and accepting certain annual participation statements and payments consisting of substantially less than the PlaintifF was actually owed under the BVT Agreement. 113. Upon receiving Plaintiff's objection to the accounting of BVT, WDC further induced the Plaintiff spend time, money and other resources on an audit, under the false representation that WDC would provide the Plaintiff with the records and documentation necessary to conduct such an audit, nieanwhile WDC had no intention of participating in that audit in good faith, nor | did WDC have any intention of ever complying with any request for an awit of the records related to the BNSG series. 114, Plaintiff is informed and believes and thereon alleges that as a direct and proximate result ofthe Defendants’ fraudulent inducements set forth above and/or false promises, Plaintiff has suffered damages in the amount of not Jess than Nine Million Three Hundred Fifty Thousand Five Hundred Sixty dollars (USD$9,350,565.00), the final amount to be proven at trial. 115. Plaintiff is further informed and believes and thereon alleges that the Defendants, through their acts of fraudulent conduct, enriched themselves, atthe expense of the Plaintiff and ‘COMPLAINT FOR DAMAGES B ‘Dood 1 Pages 18 ~ Doo ID = 3707932605 - Doo Type = OrIaReae 38 oe an ae @ e 1 || the other BNSG Owners, obtaining ill-gotten profits of not less than Twenty Bight Million Fifty JOne Thousand Six Hundred Ninety Five dollars (USD$28,051,695.00). 116. Plaintiff is further informed and believes and thereon alleges that the Defendants’ {foregoing fraudulent conduct entitles the Plaintiff to an award of punitive and/or exemplary ween Jéamages pursuant to California Civil Code § 3294, in an amount appropriate to punish and set Jan example of Defendants, and each of them, and to deter such conduct in the future, the exact, amount of such punitive damages subject to proof atthe time of trial ‘THIRD CAUSE OF ACTION (Breach of Contract) 10 (Against Defendants BYT, WDC, TTP, ABC, and DOES 1-10) 11] 17, Plaintiff re-atleges and incorporates herein by reference, all of the previous 12 || paragraphs of this Complaint, as though fully set forth herein. 13 118. The Plaintiff and Defendant BVT entered into the BVT Agreement — a contract 14 |] whereby Plaintiff would develop, produce and perform in the BNSG television program, while [BVT would market and exploit the BNSG television series and other derivative works. 16 || 119. Plaintiff is informed and believes that BVT has assigned and/or delegated all or HAMRICK & EVANS, LLP 22600 W. Olive Ave. Suit 1020 ‘Bran, Caltoria 91503, 17 }|some of the rights and/or responsibilities granted under the BVT Agreement to one or more of| 18 |]Defendants WDC, TTP, ABC, and/or DOES 1-5, inclusive; and to the extent that BVT hes 19 ||assigned and/or delegated any contractual rights and/or duties under the BVT Agrecment to any 20 |/other Defendant or third party, then Plaintiff restates, reasserts and re-alleges each of the 21 allegations set forth under this cause of action against each such assignee and/or delegee, 2 120. By all conceivable measures, Plaintiff fully performed all obligations owed under the 23 || BVT Agreement, to create and perform in the episodes of BNSG series. ‘ ' 24 || 121. As part of the BVT Agreement, Plaintiff is entitled to no less than Sixteen and % percent (16.5%) of all Net Profits fiom the BNSG series, and itis the responsibility of BVT to 188 accurately account for and distribute such Net Profit participation to the Plaintiff on a regular 27 basis. ‘COMPLAINT FOR DAMAGES 9 LOTT ‘boot 4 Bageb 19 - Doo 1D ~ 1707939605 - Doo Type ~ OmIER(@age 20 ot 33) 1 |} 122, Furthermore, under the BVT Agreement, Plaintiff is entitled to inspect and audit the records of BVT, and its affliated companies, to determine whether and to what extent BVT is accurately accounting and reporting the proceeds from the sale and exploitation of BNSG. 123. BVT, however, has materially failed to perform its obligations owed to Plaintiff under the BVT Agreement, 124. BVT has, amongst other material breaches of the BVT Agreement: () underreported the Plaintiff's Net Profit participation in BNSG; (i) failed to reasonably allow the Plaintiff's ‘Auditor access to documents and records essential to its examination; and (i) failed to provide the Plaintiff with quarterly accounting statements and profit pa ion payments since the 10 || inception of the BVT Agreement. i1 |} 125, Plaintiffis informed and believes and thercon alleges that as direct and proximate 12 |)result of the Defendants’ breach of contract, Plaintiff has suffered damages in the amount of not 13 [less than Nine Million Three Hundred Fifty Thousend Five Hundred Sixty dollars 14 |] (USDS9,350,565.00), the final amount to be proven at trial. FOURTH CAUSE OF. IN 16 (Breach of Fiduciary Duty) 1 (Against Defendants BVT, WDC, TTP, ABC, and DOES 1-10) HAMRICK & EVANS, LLP ‘Bordon Califa 91508, 2600 W. Olive Avey Sue 1020 18 || 126. Plaintiff re-alleges and incorporates herein by reference, all of the previous 19 || paragraphs ofthis Complaint, as though fully set forth herein, 20 |} 127. Under the terms of the BVT Agreement, BVT, Plaintiff, and the other BNSG 21 [JOwners, jointly agreed to carry out the business enterprise of producing and commercially 22 |Jexploiting the BNSG series, the express agreeient that the parties would share in the 23 || proceeds from the commercial exploitation of the BNSG series, and the further express 24 ||agreement that the parties would each have joint control over the production and other aspects 25 || ofthe enterprise teers B26 || 128. Pursuant to the terms of the BVT Agreement, BVT owes certain fiduciary duties to 27 ||the BNSG Owners, which include, without imitation, the following: 2B ‘COMPLAINT FOR DAMAGES 2» oct + Paget 20 ~ Des 1D = 1707933605 - Doo type = omanage 22 of 30) 1 a. 10 properly account to the BNSG Owners, on a quarterly basis, for all revenues and expenses related to or arising out of the sale, license, or other exploitation of |, the BNSG series and other derivative works; b. to receive, hold in trust, and quarterly distribute in good faith to the BNSG 2 3 4 3 ‘Owners the Net Profits earned from the sale, license, or other exploitation ofthe 6 BNSG series and certain other derivative works; and 7 . reasonably permit the Plaintiff, at Plaintiff's expense, an opportunity to examine 8 BVT’s books and records, as much as once per each twelve month period, to 9 verify the accuracy of the accounting provided by BVT. 10 |} 129. Pain 11 its fiduciary duties to Defendants WDC, TTP, ABC, and/or DOES 1-10, inclusive, thereby 12 obligating such assignee and/or delegee to act as a fiduciary to the Plaintiff and the other BNSG 13 || Owners. ro 130. BVT, together with its assignees and/or delegees, acted as a fiduciary to the Plaintiff, informed and believes that BVT assigned and/or delegated one or more of| ‘whereby the Plaintiff entrusted such Defendants to properly account for all expenses, revenues 16 and other accounting related to andlor arising out of the license, sale and exploitation of the HAMRICK & EVANS, LLP 2600 W, Ove Ave. Suite 1620 ‘Butbank, Calvomia 91508 v7 axso series and certain related derivative works, 18 || 131. Defendant BVT, and its assignees and/or delegees, reached tee fiduciary duties to 19 |: the Plaintiff by, amongst other things: 20 a. Intentionally underreporting the Plaintiff's Net Profit participation in the BNSG a series and other derivative works; 2 . Intentionally misclassifying distribution fees, so as to impose higher rates and 3B deprive the BNSG Owners of their respective shares of the Net Profits from the = sale, license and other exploitation of the BNSG series and other derivative! = 5 works; 3 26 c. Intentionally misclassifying licensing and other revenues as “Video Device” e a7 sales so as to understate Gross Receipts, and thereby deprive the Plaintiff and ‘COMPLAINT FOR DAMAGES a ‘Doct 1 Page# Al = Dac 1 = 3707922605 - nce type = ommage 22 oe 39 Loe ® e 1 other BNSG Owners of their respective shares of the Net Profits from the sale, license and other exploitation of the BNSG series and other derivative works; Intentionally Omitting revenues from accounting reports, and thereby depriving the Plaintiff and other BNSG Owners of their respective shares of the Net Profits fiom the sale, license and other exploitation of the BNSG series and other derivative works; and Intentionally deducting disallowed expenses, such as foreign tax withholding, from the calculation of Net Profits, and thereby depriving the Plaintiff and other BNSG Owners of their respective shares of the Net Profits from the sale, license ° 10 and other exploitation of the BNSG series and other derivative works. 11 || 132. Altematively, to the extent that any one of the foregoing misrepresentations, 12 |lomissions, concealments, or errors wes unintentional, such act was performed with such gross 13 || negligence, so brazenly in violation of the standard ofthe fiduciary duty of care owed to the| 14 || Plaintiff, that such negligence constituted a breach of the Defendants’ fiduciary duty. 1S 133. Defendant BVT, and its assignees and/or delegees, further breached their fiduciary 16 |! duties to the Plaintiff by, amongst other things, refusing to reasonably grant the PlaintifPs HAMRICK & EVANS, LLP 2600 W, Olive ve, Suite 1020 Burbank, Calorie 91503 17 |; Auditor access to documents and records necessary to the full and accurate examination of the 18 j]accounting of BNSG during the relevant examination period, : 19 || 134, Plaintiff'is informed and believes and thereon alleges that as a direct and proximate 20 | result of the Defendants" breach of fidueiary duty, Plaintiéf has suffered damages in the amount 21 |}of not Jess than Nine Million Three Hundred Fifty Thousand Five Hundred Sixty dollars 22 || (USD$9,350,565.00), the final amount fo be proven at trial. 23 || 135, _Plaintiffis further informed and believes and thereon alleges that the Defendants, by 24 || breaching their fiduciary duties, enriched themselves, at the expense of the Plaintiff and the etree 25 || BNSG Owners, obtaining ill-gotten profits of not less than Twenty Eight Million Fifty One | Thousand Six Hundred Ninety Five dollars (USD$28,051,695.00). 187 Z a7il- 28 || ‘COMPLAINT FOR DAMAGES 2 Doct 1 Paget 22 - Des 2D = 1707933605 - Doo type = OnErage 23. of 33) 1 FIFTH CAUSE OF ACTION 2 (Accounting) 3 (Against Defendants BVT, WDC, TTP, ABC, and DOES 1-10) 136. Plaintiff re-alleges and incorporates herein by reference, all of the previous paragraphs of this Complaint, as though fully set forth heréin. 137, —__ Defendants BVT, WDC, TIP, ABC, and DOES 1-10, and each of them, have received monies and taken possession of Net Profits ftom the license, sale and exploitation of the BNSG series and certain derivative works, a portion thereof rightfully belonging to the Plaintiff. 10 138. Defendants BVT, WDC, TTP, ABC and DOES 1-10, and each of them, have 11 || retained possession of such monies belonging to the Plaintiff, the exact amount of which 12 }}remains unknown to the Plaintiff, due to accounting information that remains in the exclusive 13 || custody and control of the Defendants, 14 139 Defendants BVT, WDC, TIP, ABV, and DOES 1-10, and each of them must | 15 || account to the Plaintiff for the full amount owed to the Plaintiff. 16 |} 140. Although not a required element of a cause of action for an accounting, HAMRICK & EVANS, LLP 2600 W. Olive Ave, Suite 1020 ‘Burbank, Colfrtia 91508 17 || Defendants BVT, as well as its successors, assignees, and delegees, owe certain fiduciary duties 18 j|to the Plaintiff arising from their shared control and interest in the BNSG series and the Net 19 || Profits derived therefrom, 20 || 141. Plaintiff is informed and believes and thereon alleges that the monies retained by the 21 || foregoing Defendants belonging to the Plaintiff are not less than Nine Million Three Hundred 22 || Fifty Thousand Five Hundred Sixty dollars (USD$9,350,565.00), the final amount to be proven 23 | at trial, Bw ‘SIXTH CAUSE OF ACTION 7 25 (Breach of the Covenant of Good Faith and Fair Dealing) B26] (Against Defendants BVT, WDC, TTP, ABC, and DOES 1-10) 27|| 142. Plaintiff re-alleges and incorporates herein by reference, all of the previous 28 || paragraphs of this Complaint, as though fully set forth herein, ‘COMPLAINT FOR DAMAGES B oct 1 Paged 22 - Doo 1D = 1707939605 - Dee type ~ OnE,cogs 24 of 3 ee & e 1 |] 143, Inevery contract there is an implied duty of good faith and fair deating that neither party will do anything that would injure the right of the other to receive the benefits of the agreement. 144. The coveriant of good faith finds particular application in situations where one party js invested with a discretionary power effecting the rights of another. 145. Such power must be exercised in good faith. 146. The Plaintiff and Defendant BVT entered into the BVT Agreement ~ a contract, whereby Plait ‘would develop, produce and perform in the BNSG television program, while Cer anneen BYT would market and exploit the BNSG series and other derivative works. 10 || 147, Plaintiff is informed and believes that BVT has assigned and/or delegated all or 11 ||some of the rights and/or responsibilities granted under the BVT Agreement to one or more of| 12 |}Defendants WDC, TTP, ABC, and/or DOES 1-10, inclusive. 13 || 148, BVT, together with its assignees and/or delegees, breached their covenant of good 14 | faith and fair dealing when they, inter alia, understated the Plaintiff's Net Profit participation in 15 |JBNSG, and then proceeded to withhold fom the Pléintiff, from his legal counsel, and 16 || eventually ftom his Auditor, information, records and documentation related thereto. ‘Borba, Calon 91505, HAMRICK & EVANS, LLP 2600 W. Olive Ave. Suite 1020 17|| 149, Plaintiff is informed and believes and thereon alleges that as a direct and proximate 18 ||result of the Defendants’ contractual breach of the covenant of good faith and fair dealing, 19 ||Plaintif has subfered damages in the amount of not less than Nine Million Three Hundréd Fifty 20 |) Thousand Five Hundred Sixty dollars (USD$9,350;565.00), the final amount to be proven at 21 | eal, 2 ‘SEVENTH CAUSE OF ACTION 2B (Money Had and Received) Su (Against all Defendants and DOES 1-80) 'S 25|] 150. Plainitf realleges and incorporates herein by reference, all of the previous 3 26 || paragraphs of this Complaint, 28 though fully set forth herein, aa, 8 : ‘COMPLAINT FOR DAMAGES a4 ‘Doct 1 Payoh 24 - Boo 10 ~ 1707952605 - Doc Type = o7maR(eager25 of 33) wore ® e 1 || 151. By failing to accurately report the monies owed to the Plaintiff under the BVT ‘Agreement, and corespondnglyremiting undervalued participation payments tothe Plaintiff, the Defendants, and each of them, misappropriated funes rightly belonging tothe Plant. 152, Defendants, and each of them, are indebted to the Plaintiff for funds received and used by the Defendants, which rightly belong to the Plaintiff, 153. In all equity and good conscience, such funds received by the Defendants rightly, belonging tothe Plaintiff, shouldbe retuned to the Plant. 154, Plain? is informed and believes and thereon alleges that asa direct and proximate result ofthe Defendants’ actions, Plaintiff hs suffered damages in the amount of not less than 10 || Nine Million Three Hundred Fifty Thousand Five Hundred Sixty dollars (USD$9,350,565.00), wera narnern 11 |] the final amouit to be proven a trial, 2 PRAYER FOR RELIEF B WHEREFORE, the Plaintiff requests that this Court enter a judgment in its favor against 14 || the Defendants for each cause of action set forth above, as follows: 5 1, For an order compelling the Defendants, and each of them, to account to the HAMRICK & EVANS, LLP 2600 W, Olive Aves Suite 1020 16 ) Plaintiff for any and all sums of money owed to the Plaintiff in the possession of the 17 ||Defendants, or any one of them; 18 2. For compensatory and/or special damages against Defendants, and each of them, 19 |[jointly and severally, according to proof at trial, together with interest at the maximum 20 jJallowable rate under the laws . a 3. For punitive damages, pursuant to California Civil Code § 3294, in an amount appropriate to punish and set an example of Defendants, and each of them, and to deter such 2 23 |lconduct inthe future, the exact amount of such punitive damages subject to proof atthe time of B24 ||iot Ey 25 |i ae For the disgorgement of all profits reccived by the Defendants, and each of them, 3 26 ftom the license, sale, or other exploitation of BNSG of any kind, where the receipt of such “© 27 | profits canbe traced to any at of fraudulent concetlment, false promise, or breach of fiduciary 28 duty; ‘COMPLAINT FOR DAMAGES 25 L a ‘Doot 3 Paget 25 ~ Doc ID ~ 1707933605 — nee type = ora(age 26 of 33 1 5. For the imposition of a constructive trust upon all profits and proceeds related to 2 |jor arising out of the BNSG Series presently in the possession, custody or control of the 3 || Defendants; 4 6. For attomey’s fees, expenses and costs incurred in pursuing the claims asserted 5 (herein, against Defendants and each of them, jointly and séverally, as may be provided by 6 || contract and/or law; 7 . 7. For attorney's fees, expenses and costs incurred in collecting or collection of or 8 |[on any judgment obtained against Defendants and each of them, jointly and severally, as may be 9 || provided by contract and/or law; 10 8, For prejudgment and poit judgment interest at the maximum allowable rate of| lerest under the law; and Bee 9.” For such other and further relief'as the Court may deem just and proper. “$8 328 13 |}Respectfully submitted this August 23, 2017. gee : Sue 14 & is 15 g 16 crainey@hamricklaw.com - a HAMRICK & EVANS LL? bY 2600 W. Olive Ave., Ste. 1020 18 Burbank, California 91505 +1.702,425,5100 (ph) 19 +1.818.763.2308 (ax) Attorney for Plaintiff 20 a a2 23 g 24 2 as 3 26 |! ae 28 7 ‘COMPLAINT FOR DAMAGES 26 ‘Doct 4 Page 26 ~ Boo 12 ~ 1707922605 - oe Type = omrope 27 of ‘Burbank, Cafomia 91805 HAMRICK & EVANS, LLP 2600 W. Olive Ave. Suite 1020 EVOL PED a 10 ul 12 B 4 1s 16 " 18 19 20 a 2 2B 4 25 26 un matter. @ e DEMAND FOR A JURY TRIAL ‘The Plaintiff hereby demands a trial by jury on all issues related to or arising out of this| Respectfully submitted this August 23, 2017. crainey@hamricklaw.com Hamrick & BVANS LLP 2600 W. Olive Ave., Ste. 1020 Burbank, California 91505 1.702.425.5100 (ph) #1.818.763.2308 (fax) Attorney for Plaintiff ‘COMPLAINT FOR DAMAGES 2 ‘Dock 1 Paged 27 ~ Doo 1D = 1707933608 ~ Doo Type = OnNERrage 28 of 38) (arn [rear amare Roca Cee ‘ARayrond Hamvic, (SBN 83021) Charles ©. Rainy(SBN 294754) Hanviek Evans, LP 2600 W, Clive Ave, Ste. 1020, Burbank, CA 91508 roe: 818763-5252 ‘ae: 818.788-2508 FILE smomerrongws_ Paint Witla 8. Nye Susie Comrie ura coun oF carota. count or Los Angeles ‘County of Los Angeles ‘eetaness 111 NH Steet sntnesoouas 111 Ni Steet AUG 24 2017 hvmoseezee: Los Angeles, CA 90012 wonnne Stanley Mosk Courhouse Shor R. Cape Dee Otek Mass Ste ‘IVIL CASE COVER SHEET ConplexCaseDasinafon — |™™RE B79 7G G Unlined .C) Limes ; Pe nerd ameanl CI counter ded | | emandes Samancedis | Fed wit fret appearence by dtonent ssceede 525009) $25 000rlass)| (Cal Rubs of Cou rae 2.403) | cen ‘tems 1-6 Below must be completed (see inivetons on pogo 2) 1 Check one box below forthe case type hel best describes tis case: date Tor Conrat Provost Complex Chi Ligetion CL] Awe ea) (Z_Brwach of contvactvarranty (06) (Cah Rules of Court, rules 2.400-3.403) Uninsured matorist (46) C] Rute 3.740 collections (08) 1 AnttwsTrade regulation (03) her FIPOMD PeronalinunfProperty —[] cneresacton (2) coracton dict 10 Sumagensongha Det Tot 1 nasoes coverage (16) E)_ Masato 40) ‘asbestos (4) BB otweconac 7) 1 secures tigation 25 Crete ty 2 Res Property 1 Eacrmeattentat a0) (ttescatmapacice (6) Criren carivinere _-)_newnca coreg ca aig tom ne D1 _Other pupa 3) ‘condemnation (14) _atove sted provisionally complex case Nop PUPDIWD (Ota Tor 1 Wirgtsevcten (3) ies (I ewinss ovina ices races or) C] Onarresl cpr 28) Enforcement of Judgmont CT cwasights cos) Unlawful Detainer 1 Eptorcement of udgment (20) Datamation (13) 1 Commercial 31) Miscellaneous Clvil Comptaint GF rmac (estan 2 7 voen Intetlectral property (19) O_ Drugs (38) C1 otter compisint (ot specited above) (42) Presa eelaece 25) Judes Review canons Ciel Peon (ther nom PUPONIO tot (88) 1 rset fotonae (05) C1 Pansersip ana corporate governanc (21) Employment 1 Pettion we: artraon awava (inj) Other potion rot spect above) (3) L] Wrongtut termination (38) D1 whit cfrmandate (02) 1 onrerenptornen 5) O_oberiesciatrsew oo 2 This caso Bis Cis not complex under ule 3400 ofthe California Rules of Cout the cane Is complex, mark the {actors requieng excepioaljudal management 2. [J Lavge number of soparateyropesented paries 6, ] Large numberof winesses ‘». [Extensive motion practice rising difficult or novel e. [] Coordination with related actions pending in one or more courts ieaues that wl be time-consuming to resove in oer counties, ates, o counties, rina federal ccurt c. B Substantial amount of documentary evidence —_f._[]_ Substantial postiudgment judicial supervision Remedies sought (check al that sepby: a. monetary b.[Jronmonetany: dacaratoryorinnctve retot — puitve Number of causes of acon (spect): 7 Triscase Cl is (isnot aclss action st tthe are any krowm related cases, fe and serve ania of lta case DalezAugust 24, 2017 Chales C. Rainey, Esq — ri Bain must fle this cover sheet withthe fst {der the Prebate Code, Family Code, or Wola ‘nanctons. ¢ File this cover sheet in adsiton to any cover sheet required by local cout rue. * ils casa corplex under ule 3.400 at c0g of Ina Calfora Res of Cour, you must sen a copy of tis cover shoaton all ‘other partes fo te action or proceeding. + Unless this a colecons case under ue 3740 ora complex case this cover shoot wil be used for slatial purposes ony ed inthe acfon or proceeding (excoptsinal dais cases or cases fed nd Institutions Code. (Cal, Rules of Cou, ule 3220) Falco to fle may result “yaenccma” ‘CIVIL CASE COVER SHEET BYR Sinan meses oct 1 Faget 28 — Gao 7D = 1707939605 - Doe type = om(rage 29 of 33) at @ @ mora INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plintfs and Others Filing Ftst Papers. If you are fling a fest paper (or example, 2 complain) In a civil case, you must complete and fie, alng wih your first paper, the Civil Cese Cover Shet contained on page 1. This information wil be used to comple Statistics abou! the les and numbers of cases fed. You must compote items 1 through & en the sheet, In ert 1, you must check ‘one box forthe case type that best descibes the case. ithe case fis both a general and a more specc type of case Usted in tam 1, heck the mare specific one. the case has mule causes of ection, check the box that best indicates the primary cause of action, ‘To assist you in completing he sheet, exampies ofthe cases that belong under each case type inilem 1 are provided below. A cover sheet must be fied ony wilh your rial paper. Fale to le @ cover sheet with the Sst paper fied ina cil case may subjct a pat, ts counsel, or both to sanctions under rules 230 and 3220 ofthe Colfomia Rules of Cor. ‘To Parties in Rule 3.740 Collections Cases. A “clections case" under rule 3.740 is defined as an action for recovery of money ‘ved in a sum stated tobe certain tha isnot mare then $25,000, exclusive ofinorest and stomey's fees, arising fom a vansecton in whic property, sendces, or money was acquied on credit A collections ease does not nce an acion seating the folowing: (1) fot damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal prover, or (6) @ preludgment writ of ‘attacment. The ientfcaion of 2 case 0s rule 3.740 cofections case on iis form means that wil be exempt fom the general ‘ime for-senice requirements and cage mansgement rules, uniess a defendant fles a responsive pleading. A rule 3.740 cofections ‘ase ill be subject to he requirements for saree and cbtsining a judgment in re 3.740. ‘To Parties in Complex Cases. in complex cases only, patios must also use the Civil Case Cover Shee! to designate whether the case is compe. Ifa plant beloves the case is complax under rle 3.400 of the Calforia Rues of Court, this must be indicated by ‘comrlatng the appropite boxes in items 4 and 2. Ia paint designates a case as carpe, the cover sheet must be served wih the ‘complaint on all parbes tothe action. A defandant may fle and serve no later than the time ofits fst appearance a jlnder in the plains designation, a countr-designaton that the cass not comple, or, ifthe planifhas mage no designation, « designation that thocate compen CASE TYPES AND EXAMPLES ‘ut Tor Conaet ®rovslanaly Complex Ci Litgaton (x. ‘le (2)-Panal yropey “Beat of Concern (09) fies of Gout Ros 350-3405), ernest Brat react Renate ‘nares (3) insted test 8) tm ono et ni etn onstin Dae 1), ate ces evbarred rong eon) {hn et an To 0 ‘mgr cnn sate conan Bese Seler ‘Secures ignon 2) ‘ton cerns tem Pai oar gore) EnutonertaTon Tet (0) cou rt ae Negipe ese ofCenos svar ote hs ter Por (Persona a "ara ater fom rosea. 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Oa Nevig ten ont fe Trscomen) Spec Bowes ‘he: eal Prenaty tet oirot enenestan na Pre aw soma rotten er Ste Carmo Conti Non pup Other Tort Feta) ‘ese ynionherconp) Suess Teele Sess Usa ean omer wi Complain facie on Commas) rentounons cate 4, ccrnnaton, fengenal(2) ieatonadus Gl Petition ‘seamen te Dre 86 casinos ies! Paty rd Coot ‘reser Shag hak tm ahe, Serene (th Delanoton tps Comm or Peco ne Pete el seood ety) Juicer | eon) Pa 9) estou 0) Giese ‘see Peper 9) Feton fe Akon Act) Wotpbcs tne ‘Retesorat eater (3) ‘ita (2) Esependen Aut © Legal Malpractice ‘Wt-Adminisirative Mandamus “Abuse: 15 Direc apace ‘Wrchlndereson ee Gaot redo Covet 1B etree oe Cate Peter rae Cha "Girton PuPOMO Ten 5) iiter is Cort Coe Peg or at Fem te Employment eve ‘Gatn engl Temtton 8) er esl even 9) onerexPeten empl) eval Hen onze Ore Nant pester Conmenener Apes Sree re CIVIL GASE COVER SHEET rent eo, ‘Dock 1 Pagey 29 ~ boo 1D © 1707832605 - Doo aype = OME