They Could Be Heroes v. Gary Simpson

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GRADSTEIN & MARZANO, P.C.

Henry Gradstein, (State Bar No. 89747)
hgradstein@gradstein.com
Maryann R. Marzano (State Bar No. 96867)
mmarzano@gradstein.com
Matthew A. Slater (State Bar No. 259986)
mslater@gradstein.com
6310 San Vicente Boulevard, Suite 510
Los Angeles, California 90048
Tel: (323) 776-3100
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FINK & STEINBERG

Keith A. Fink (State Bar No. 146841)
kfink@finksteinberg.com
S. Keven Steinberg (State Bar No. 151372)
ksteinberg@finksteinberg.com
OlafJ. Muller (State Bar No. 247372)
omuller@finksteinberg.com
11500 Olympic Boulevard, Suite 316
Los Angeles, California 90064
Telephone: (310) 268-0780
Facsimile: (310) 268-0790
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Attorneys for Plaintiff

THEY COULD BE HEROES, LLC
and THOMAS RABOIN
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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COUNTY OF LOS ANGELES, CENTRAL DISTRICT

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THEY COULD BE HEROES, LLC, a

California limited liability company; and
THOMAS RABOIN, an individual,
CASE NO.
PLAINTIFFS COMPLAINT FOR:
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Plaintiffs,
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vs.
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GARY SIMSON, an individual; and DOES 1

to 50, inclusive,
Defendants.
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BREACH OF CONTRACT;
FRAUD;
CONVERSION;
INTENTIONAL INTERFERENCE
WITH PROSPECTIVE ECONOMIC
RELATIONS;
BREACH OF FIDUCIARY DUTY;
DECLARATORY RELIEF;
PRELIMINARY AND PERMANENT
INJUNCTWE RELIEF
[JURY TRIAL DEMANDED]
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PLAINTIFFS COMPLAINT
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COME NOW PLAINTIFFS THEY COULD BE HEROES, LLC and THOMAS

RABOIN and hereby allege as follows:
PARTIES
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1.
PLAINTIFF THEY COULD BE HEROES, LLC (Plaintiff and/or TCBH) is
and at all times relevant hereto was a California limited liability company that maintains offices and
does business in Los Angeles County, California.
2.
PLAINTIFF THOMAS RABOIN (Plaintiff and/or Raboin)) is and at all
times relevant hereto was an individual residing in Los Angeles County, California. (TCBH and
Raboin are collectively referred to herein as Plaintiffs.)
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3.
DEEFENDANT GARY SIMSON (Defendant and/or Simson
is and at all
times relevant hereto was an individual residing in Los Angeles County, California.
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Plaintiffs are unaware of the true names and capacities, whether individual,
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corporate, associate or otherwise, of Defendants DOES 1 to 50, inclusive (the DOE
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Defendants), and therefore sue said DOE Defendants by such fictitious names. Plaintiffs will
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seek leave of Court to amend this Complaint to show the true names and capacities of such DOE
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Defendants when the same has been ascertained. Plaintiffs are informed, believe, and thereupon
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allege that each of the fictitiously-named Defendants is responsible to Plaintiffs for the injuries
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suffered and alleged herein, and/or is subject to the jurisdiction of the Court as necessary party for
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the relief herein requested.
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Plaintiffs are informed and believe that Defendant Simson and each of the DOE
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Defendants (collectively, Defendants) are now and were at all times mentioned herein the
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agents, principals, partners, joint venturers, employees and/or alter-egos of the other Defendants,
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and that all of the acts and conduct alleged herein were performed within the course and scope and
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in furtherance of such agency, partnership, joint venture, employment and/or alter-ego
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relationship.
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-2PLAINTIFFS COMPLAINT
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Jurisdiction and venue are proper in this Court because the wrongful acts and
omissions alleged occurred in the County of Los Angeles, the harm suffered by Plaintiffs occurred
in the County of Los Angeles, and Defendant is and at all times relevant herein was doing business
in the County of Los Angeles, State of California.

FACTUAL ALLEGATIONS
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7.
Plaintiffs re-allege, and incorporate herein by reference paragraphs 1 through 6,
inclusive, as though fully set forth herein.

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In. or about February 2008, Plaintiff Raboin was introduced to Defendant Simson
through a shared business associate, Troy Bogert (Bogert). Raboin first met with Defendant in
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Burbank, California to discuss a then-untitled film project, which came to be known as They
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Could Be Heroes (the Film).
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During this meeting, Defendant Simson described the Film as a project whereby
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some of the biggest names in the music industry including but not limited to a number of celebrity
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musicians, would be interviewed for the Film. Simson explained that the Film would center on
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Waddy Wachtel, a session musician famous within the music industry for playing and collaborating
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with various high-profile rock musicians, a roster which included but was not limited to Keith
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Richards, Roger Daltry, Robert Plant, Joe Walsh, Stevie Nicks, Iggy Pop, Jackson Browne, James
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Taylor, and many others. Simson specifically represented to Raboin that he could and would
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interview many if not all of these high-profile musicians, among others, in connection with the
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Film to reminisce about their times with Wachtel. In subsequent meetings, Raboin and Simson
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further developed the Films structure to include live performances of these musicians with
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Wachtel at a rock and roll club then called the Joint at 8771 W. Pico Blvd, Los Angeles, CA
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90035, during which segments these musicians would play some of the more famous songs on
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which Wachtel had collaborated. Raboin explained to Simson that the greater the number of high
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profile musicians and celebrities interviewed by Simson for the Film during production, the easier
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it would be for Raboin to raise investment funds needed to complete the Film.
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During the initial meeting, Simson explained to Raboin that he needed Raboins
help to raise capital for the Film and to otherwise handle the business affairs of this project. Simson
explained that he had already conducted and filmed a number of these interviews himself under
the moniker Gary Simson Productions, which interviews and footage would be incorporated
into the Film. Simson estimated that the remainder of the Film would take approximately one and
one-half (1-1/2) years to complete. Raboin expressed interest in the project, and the two agreed to
continue their discussions.

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On or about March 3, 2008, Defendant Simson e-mailed Plaintiff Raboin his
business plan for making and financing the Film. In this e-mail, Simson set forth his personal
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financial estimates on first returns to investors, a list of prospective interviewees, a discussion
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regarding cost deferment, and his plans relating to a theatrical release of the Film. Simson also
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outlined a budget for the Film, wherein he listed his personal fees for services to be rendered in
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connection with the Film at $52,800 in exchange for twenty-four (24) weeks of work. Simson
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further (under) estimated the cost to obtain music rights for the Film at a total of $240,000 for the
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use of forty (40) songs.

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Shortly thereafter and over the next four (4) years, the parties commenced filming,
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marketing, developing, and editing the Film as agreed. In reliance on Defendant Simsons conduct
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and comments to Plaintiffs, Plaintiff TCBH purchased thousands of dollars worth of equipment
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to film and edit the Film via capital calls which were funded almost entirely by Plaintiff Raboin
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himself. Plaintiff TCBH also hired various third-party contractors to work on the Film. During this
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time period, the parties regularly referred to one another as business partners with one other
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and with third parties including, but not limited to, potential distributors and marketers of the
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Film.
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The parties mutual business associate, Bogert, was initially involved in the Project.
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The parties initially agreed that Bogert would serve as the Films editor. Within approximately
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nine (9) months of these initial meetings, however, Bogert left the project, frustrated with
Defendant Simson s lack of progress in securing and conducting the various musician interviews,
which in turn made it exceedingly difficult to raise funding sufficient to pay Bogerts requested
fees.
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On or around March 30, 2008, the parties, with Bogert, drafted their first Private
Placement Memorandum (PPM) wherein they outlined their joint business plan with respect to
the Film for prospective investors in the project. The purpose of the PPM was to raise funds for
the project which would be managed through a limited liability company (the LLC) they
intended to create.
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In exchange for his work filming, editing and conducting most of the interviews, the
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parties agreed that Defendant Simson would be paid a $52,500 fee from Plaintiff TCBH, which fee
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would be separate from his member share of the LLC s projected future profits (from the Films
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eventual sale and distribution). The parties referenced this fee in this initial PPM as an expense of
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the LLC. Over the next few years, Simson repeatedly demanded that his fee be increased to
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$93,000, near double the originally agreed-upon amount.
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On or about April 23, 2008, Plaintiff Raboin, Defendant Simson, and Troy Bogert
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formed Plaintiff They Could Be Heroes, LLC, as a California limited liability company, for the
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purpose of creating, filming, editing, marketing, developing, and distributing the Film. All three
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individuals initially served as co-Managers of TCBH. When Bogert left the project later that year,
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Plaintiff Raboin and Defendant Simson became the sole remaining co-Managers of TCBH.
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On or about May 16, 2008, Raboin, Simson and Bogert entered into a written
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Operating Agreement for TCBH (the Operating Agreement), which generally memorialized the
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terms of their operation and management of TCBH. A true and correct copy thereof is attached
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hereto as Exhibit A.
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Pursuant to the terms of the Operating Agreement, Plaintiff and Defendants agreed
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to create, produce, film, edit, market, develop, and distribute the Film under the sole control,
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ownership, and authorship of Plaintiff TCBH. Exhibit A. Pursuant to the terms of the Operating
Agreement, Plaintiff and Defendants also agreed that the Film and all related materials including,
but not limited to, all video and audio footage, edited materials, derivative materials, marketing
materials, distribution materials, paperwork, correspondence, and other such items, would be
owned (and ultimately distributed and/or sold) solely by Plaintiff TCBH, for which purpose they
formed and managed this entity. Exhibit A.
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In June 2008, Plaintiff Raboin drafted and distributed a new PPM for investment
purposes. Simson personally reviewed and approved it prior to circulation. As set forth in this new
PPM, the parties sought to raise $1 million in investment funds on or by December 1, 2008.
Further, by its terms, Plaintiff Raboin was to receive a ten per cent (10%) commission on any
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investment funds raised. Notwithstanding Raboin s best efforts, the parties were able to raise only
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a scant $30,000 by the December 1, 2008 deadline.
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During the first year of TCBHs operations, Simson interviewed a number of
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musicians for the Film, but he was only able to secure and conduct the filmed interview of one
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high-profile musician George Thorogood.
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On or about October 28, 2008, Plaintiff Raboin pre-registered the copyright for the
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Film on behalf of the LLC. He specifically pre-registered the Films author/owner as Plaintiff
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They Could Be Heroes, LLC.
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Through 2009, Plaintiff Raboin contacted and contracted with various third parties
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for graphics and editing work in connection with the Film. He hired cameramen, a film editor (to
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replace Bogert), a production assistant, an associate producer, and other individuals to assist
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Simson in the Films pre-production, filming, and post-production work. He made a point of
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keeping Plaintiff Raboin apprised of his work and progress and regularly sent invoices to Plaintiff
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Raboin to cover these various Film-related expenses, which Plaintiff Raboin did.
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In 2009, Plaintiff Raboin prepared a third PPM to again try to raise more money for
the Film project. He again sent it to Simson, who personally reviewed and approved it beforehand.
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By and through this third PPM, the parties sought to raise $1 million by the end of 2009. This
time, Plaintiff Raboin was able to raise $180,000 from various investors.
24.
Through 2009, Defendant Simson interviewed eleven (11) more musicians. As in
2008, only two Jackson Browne and Mick Fleetwood were relatively high-profile musicians as
the parties had discussed.
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In 2010, after working on the Film for over two years, Defendant Simson s interest
in the Film appeared to be flagging. Simson only interviewed two (2) musicians during the entire
year, neither of whom was particularly well-known.
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Around this time in 2010, Defendant Simson abruptly asked Raboin how he could
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limit his liability on the Film and in connection with the LLC. Surprised by this query, Raboin
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asked what Simson had in mind. Simson responded by explaining to Raboin that he no longer
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wished to be personally responsible for the Films sale and distribution, or for the LLCs
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management and operations. He further explained that he merely wanted to produce and direct the
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film in exchange for a flat fee, like the LLC s other third-party contractors. Raboin suggested that
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Simson remove himself as co-Manager of TCBH, in place of which Raboin, acting on the LLCs
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behalf, would contract with Simson to serve as a producer/director on the project. As part of these
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discussions, Simson asked Raboin for a detailed accounting of the LLCs finances, which Raboin
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provided. Raboin also prepared a fourth PPM to seek another round of investor funding for the
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Film, which he again sent to Simson beforehand for his review.
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The parties henceforth commenced negotiations of the terms of Simsons
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producer/director agreement. During the subsequent two (2) year-long negotiations period,
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Simson continued to perform his previously agreed upon producer/director duties for TCBH, but
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ceased performing any LLC management duties as TCBH s co-Manager, leaving Plaintiff Raboin
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as the sole remaining Manager of Plaintiff TCBH. Simson subsequently confirmed as much in e
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mails and verbal communications with Plaintiff Raboin.
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28.
In 2011, Defendant Simson managed to secure and film eight (8) additional
musician interviews, the most high-profile of which was that of Fleetwood Macs vocalist, Stevie
Nicks.
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During this same year, Defendant Simson sharply increased his spending of TCBH
funds for purported Film-related expenses. When Raboin questioned Simsons sudden need for
the requested expenditures, Simson complained to Raboin that the Film was underfunded and that
Raboin needed to increase his fundraising efforts on TCBHs behalf. Raboin in turn prepared a
fifth PPM to seek yet another round of investor funding for the project.
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During the first few months of 2012, the parties ongoing negotiations regarding the
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terms of Defendant Simsons producer/director agreement stalled, as Simson increasingly
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demanded exceedingly high fees for his services that Plaintiff TCBH simply could not afford.
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Raboin repeatedly explained to Simson that TCBH simply could not afford to pay Defendant
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Simson his demanded $93,000 fee and cover other production expenses. During these
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negotiations, Simson repeatedly proposed that he personally take over the entire Film project from
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Plaintiffs including, but not limited to, the Films ownership, distribution, and marketing efforts,
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which offers Plaintiff Raboin politely declined.
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On or around March 23, 2012, Defendant Simson announced to Raboin that he was
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resigning from Plaintiff TCBH as a member and as a producer/director and that he wanted
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nothing further to do with Plaintiffs whatsoever. He further demanded that all references to his
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name be removed from the LLCs website, literature, bank account(s), promotional materials,
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and all appropriate government documents. As part of his resignation letter, Simson accused
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Raboin of financially mismanaging the Film and failing to account for various Film-related
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expenses, even though Raboin had repeatedly provided thorough and accurate accountings on
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demand to Simson. Simson s accusation of mismanagement was particularly ironic insofar as
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Simson personally depleted the companys funds through his sudden increase in expense
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reimbursements in 2011.
32.
At the time that Defendant Simson cut all ties with the Film in March 2012,
Plaintiff Raboin had raised approximately half a million dollars for the Films marketing,
development, filming, and editing. The various investors in the Film collectively owned fifteen
percent (15%) of Plaintiff TCBH at this time. When Simson quit Plaintiff TCBH entirely, Plaintiff
Raboin assumed ownership of Simsons membership share.
33.
Notwithstanding the same, Defendant Simson refused to relinquish TCBHs
equipment that he had used to film and edit the Film. Unbeknownst to Plaintiffs, moreover,
Defendant Simson failed to relinquish all copies of the Film itself including, but not limited to, all
footage filmed, all edited material and all other physical material relating to the Film in his
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possession, custody and control.

34.
Rather than return LLC property to Plaintiff TCBH and relinquish his involvement
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with the Film, Defendant Simson instead continued to conduct interviews for the Film on his own,
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as if he had never entered into the Operating Agreement or other agreements with Plaintiffs.
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Defendant Simson started an online fundraising campaign in or about 2013 to raise funds to
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continue the filming, editing, marketing and distribution work for the Film, in which campaign
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materials he claimed that the project was his and his alone. He also changed the Films name to
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King of the Sidemen, to hide his conversion of the Film for himself from Plaintiffs and their
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investors.
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35.
Plaintiffs have since had no choice but to seek judicial redress for their grievances
against Defendant Simson.
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FIRST CAUSE OF ACTION
BREACH OF WRITTEN CONTRACT
(By PLAINTIFFS AGAINST ALL DEFENDANTS)
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Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1-35, inclusive,
as though fully set forth herein.

37.
On or about May 16, 2008, Plaintiff Raboin and Defendant Simson entered into the
Operating Agreement, which generally memorialized the terms of their operation and management
of Plaintiff TCBH. Exhibit A.

38.
Pursuant to the terms of the Operating Agreement, Plaintiffs and Defendant
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Simson agreed to create, produce, film, edit, market and distribute the Film under the control and
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ownership of Plaintiff TCBH. Exhibit A. Pursuant to the terms of the Operating Agreement,
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Plaintiff Raboin and Defendant Simson also agreed that the Film itself and all footage, marketing
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materials, and related items and property would be owned exclusively by Plaintiff TCBH. Exhibit
14A.
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39.
The Operating Agreement represents a valid and binding written contract, the
terms of which are certain and enforceable.

40.
Plaintiffs performed their obligations under the Operating Agreement, save those
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obligations that have been waived, excused or prevented by Defendants actions, omissions and/or
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breaches.
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41.
As alleged above, Defendant Simson has converted the Film for his own personal
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use in breach of the Operating Agreement, and he has continued to create, produce, film, edit,
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market and distribute the Film for his own personal use in breach of the Operating Agreement, and
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in derogation of the rights of Plaintiffs and to their detriment.
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42.
Defendants breaches were undertaken without justification or excuse.
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43.
Plaintiffs damages are a certain, foreseeable, and measurable consequence of
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Defendants breaches. As a direct and proximate result of said breaches, Plaintiffs have been
damaged in an amount to be proven at trial according to proof, and which they believe to be in
excess of $10 million, plus pre-judgment interest thereon at the maximum legal rate.
SECOND CAUSE OF ACTION
FRAUD
(By
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44.
PLAINTIFF RABOIN AGAINST ALL DEFENDANTS)
as through fully set forth herein.

45.
As alleged above, Defendant Simson repeatedly lied and misrepresented his true
intentions to Plaintiff Raboin to induce him into going into business with Defendant, to induce him
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into forming Plaintiff TCBH with Defendant Simson, and to induce Plaintiffs into continuing to
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fund and otherwise assist with the filming, editing, marketing and distribution of the Film. During
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their initial meetings in 2008, Defendant Simson repeatedly represented to Plaintiff Raboin that he
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had every intention of sharing the profits and control of the Film with Plaintiff Raboin. During
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their subsequent meetings in 2010
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negotiations, Defendant Simson repeatedly represented to Plaintiff Raboin that he wished to be
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paid a flat fee for his producer/director services in lieu of any rights to the Films ownership,
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marketing, control, and profits. At no point in time did Defendant Simson inform Plaintiff Raboin
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that he had no intention of doing any of the above and instead had every intention of taking the
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Films control and profits for himself.
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46.
2012 relating to their producer/director agreement
Defendants representations and omissions of material fact were false, false at the
time they were made, and continued to be false through the date of filing this lawsuit.
47.
Defendant knew these representations and omissions of material fact were false,
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false at the time they were made, and false through the point in time when he resigned from the
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project in 2012, but he intentionally made them anyway. Defendant intentionally made these false
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representations and omissions of material fact to induce Plaintiff into going into business with
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Defendant and to further induce Plaintiff into continuing to fund and otherwise assist with the
filming, editing, marketing, and distribution of the Film.
48.
Had Defendant Simson been honest, forthcoming and truthful about his true
intentions with respect to the Film, Plaintiff Raboin would never have gone into business with
Defendant, and Plaintiff Raboin would never have permitted or authorized Defendant to work on
the Film. Defendant understood this, and yet willfully and fraudulently induced Plaintiff into going
into business with him and funding, editing, marketing and distributing the Film to Plaintiffs
ultimate detriment.
49.
Plaintiff was reasonably justified in relying on the false representations and
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omissions of material fact made by Defendant. Plaintiff relied on these representations and
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omissions because he had no reason to disbelieve these statements given the years-long history of
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working together with Defendant on the Film. Plaintiff otherwise developed a personal friendship
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with Defendant Simson and did not believe that his friend would deceive him in such a despicable,
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ugly manner.
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50.
Plaintiffs damages are a certain, foreseeable and measurable consequence of
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Defendants lies, misrepresentations and omissions. As a direct and proximate result of
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Defendants wrongful conduct, Plaintiff has been damaged in an amount to be proven at trial
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according to proof and which they believe to be in excess of $10 million, plus pre-judgment
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interest thereon at the maximum legal rate.
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51.
Defendants actions were willful, fraudulent and/or malicious within the meaning
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of California Civil Code
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damages in an amount according to proof at trial.
3294, thereby entitling Plaintiff to recover exemplary and punitive
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THIRD CAUSE OF ACTION
CONVERSION
(BY
52.
PLAINTIFFS AGAINST ALL DEFENDANTS)
Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1- 35, inclusive,
53.
Plaintiffs were at all times mention herein, and are currently, the rightful owners of
the Film and all related materials thereto, including, but not limited to, all footage filmed,
photographs, edited segments of the Film, audio portions of the Film, and all marketing materials,
correspondence, notes, credit sequences, paperwork, papers, and derivative versions of the Film.
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materials thereto rightfully belong to the Plaintiffs.

55.
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Plaintiffs are informed and believe and on that basis allege that Defendant Simson
has converted the Film and all related materials thereto to his own personal use.
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Defendant Simson knew at all times relevant herein that the Film and related
56.
Defendant Simson has ignored Plaintiffs requests that he relinquish control of the
Film and all related materials thereto to them.
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57.
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Defendants wrongful conduct. As a direct and proximate result of Defendants wrongful conduct,
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Plaintiffs have been damaged in an amount to be proven at trial according to proof, and which they
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believe to be in excess of $10 million, plus pre-judgment interest thereon at the maximum legal
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rate.
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3294, thereby entitling Plaintiffs to recover exemplary and punitive
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FOURTH CAUSE OF ACTION
INTENTIONAL INTERFERENCE WITH
PROSPECTIVE ECONOMIC RELATIONS
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59.
60.
Plaintiff Raboin and Defendant Simson agreed to create, produce, film, edit, market
and distribute the Film under the control and ownership of Plaintiff TCBH. Exhibit A. Pursuant
to the terms of the Operating Agreement, Plaintiff and Defendants agreed that the Film would
be
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owned entirely by Plaintiff TCBH, for which purpose they formed this entity. Exhibit A.
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61.
After resigning from TCBH, Defendant Simson has continued to film, edit,
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market, and distribute the Film to various third parties, including but not limited to raising
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additional funds for the same by soliciting money from the general public using the website
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Kickstarter.com, in breach of the Operating Agreement. Defendant further has renamed the
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film King of the Sidemen and marketed it as such, as though he never had any business
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relationship relating to the film with Plaintiffs in the first place. This has directly interfered with
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Plaintiffs own ongoing efforts to film, edit, market, and distribute the Film on their own behalf, as
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well as solicit investment to fund the same.
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62.
Defendant Simson s actions were undertaken without justification or excuse.
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63.
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Defendants wrongful conduct. As a direct and proximate result of Defendants wrongftil conduct,
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rate.
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FIFTH CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY
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65.
Plaintiffs repeat, re-allege, and incorporate herein by reference paragraphs 1-35,
inclusive, as though fully set forth herein.

66.
By virtue of his status as TCBH s co-manager pursuant to the terms of the
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Operating Agreement, Defendant Simson owed duties of fiduciary loyalty and care to Plaintiff
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Raboin and Plaintiff TCBH.

67.
1.2
As alleged herein, Defendant Simson breached both of his fiduciary duties to
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Plaintiffs by: (a) failing to interview the celebrity musicians he had purportedly lined up to
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participate in the Film as he had previously promised; (b) requesting reimbursement for excessive
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expenditures, thereby causing TCBH s account to become depleted; and (c) effectively stealing
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the Film and related materials from Plaintiffs for his own personal use in breach of the Operating
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Agreement, and to Plaintiffs detriment.

68.
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Plaintiffs damages are a certain, foreseeable, and measurable consequence of
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Defendants breaches of fiduciary duties. As a direct and proximate result of said breaches,
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rate.
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69.
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SIXTH CAUSE OF ACTION
DECLARATORY RELIEF
(BY PLAINTIFFS AGAINST ALL DEFENDANTS)
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71.
An actual controversy has arisen and now exists as between Plaintiffs and
Defendant Simson concerning their respective rights and duties under the Operating Agreement
and with respect to the Film and all related materials thereto. Plaintiffs contend that Plaintiff
TCBH owns all rights and title to the Film pursuant to the Operating Agreement, and that
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Defendant Simsons continued work on the Film for his own personal use is a breach of the
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Operating Agreement.
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Plaintiffs are informed and believe, and on that basis allege, that Defendant Simson
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disputes that he has breached the terms of the Agreement as alleged above, and that he further
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disputes Plaintiffs contention that they have the sole right to ownership and control over the
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Film.
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73.
Plaintiffs desire a judicial determination of the parties respective rights and duties
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relating to the Film, a declaration that the Operating Agreement has been breached by
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Defendants, and a declaration that Plaintiff TCBH owns all rights, title and interest in and to the
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Film and all related materials thereto. A judicial determination is necessary and appropriate at this
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time under the circumstances in order that the Plaintiffs may ascertain their rights and duties
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under the Operating Agreement, and to resolve, among other things, the rightful ownership and
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possession of the Film and all related materials thereto.
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SEVENTH CAUSE OF ACTION
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
(B PLAINTIFFS AGAINST ALL DEFENDANTS)
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74.
Plaintiffs repeat, re-allege, and incorporate by reference paragraphs 1-35, inclusive, as
though fully set forth herein.

75.
The actions of Defendant alleged above have caused, and continue to cause, great
and irreparable harm to Plaintiffs, which cannot adequately be measured solely by monetary
damages.
76.
Plaintiffs are entitled to preliminary and permanent injunctive relief enjoining and
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prohibiting Defendant Simson, and any and all of his agents, servants, assigns and all others acting
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in concert with or on behalf of Defendant, from taking any action in connection with the Film
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inconsistent with Plaintiffs ownership thereof including, without limitation, continuing to create,
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produce, film, edit, market and distribute the Film, transferring any interest in the Film or affecting
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title to the Film in any manner.
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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs THEY COULD BE HEROES, LLC and THOMAS RABOIN
pray for judgment against Defendants GARY SIMSON and DOES 1 through 50 as follows:
1.
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accordance with proof at the time of trial, in excess of $10 million;

2.
21
22
25
For a declaration that the Operating Agreement has been breached by Defendant
Simson;
3.
23
24
For general and compensatory damages, including prejudgment interest, in
For a declaration that Plaintiffs own all rights, title and interest in and to the Film
and all related materials thereto;
4.
For disgorgement/restitution of Defendants ill-gotten gains, including, but not

limited to, any and all profits made by Defendant Simson in connection with the
26
Film and the immediate return of the Film and all related materials thereto to
Plaintiffs possession, custody, and control;
5.
For an Order enjoining and prohibiting Defendants and any and all of their agents,
servants, assigns and all others acting in concert with or on behalf of Defendants,
from taking any action in connection with the Film inconsistent with Plaintiffs
ownership thereof including, without limitation, continuing to create, produce,
film, edit, market and distribute the Film, from transferring any interest in the Film,
and from affecting title to the Film in any manner;
6.
10
11
according to proof;
7.
12
13
14
For punitive damages in favor of Plaintiffs in an amount to be determined at trial
For Plaintiffs costs and attorneys fees, as permitted by law;

and
8.
For such other and further relief as the Court may deem just and proper.
Dated: November 10, 2014

HENRY GRAD STEIN
MARYANN R. MARZANO
MATTHEW A. SLATER
15
16
17
and
FINK & STEINBERG

KEITH A. FINK
S. KEVENS
BERG
OLAFJ.M LE
18
19
20
21
By:
OL
LLER
Attorneys for Plaintiffs
THEY COULD BE HEROES, LLC,
and THOMAS RABOIN
.
22
23
24
25
26
1
2
3
DEMAND FOR JURY TRIAL

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

HENRY GRADSTEIN
MARYANN R. MARZANO
MATTHEW A. SLATER
and
FINK & STEINBERG

KEITH A. FINK
S. KEVEN STEINBERG
OLAFJ.MU
7
8
9
10
11
12
By:
OLAFJ. MULL
and THOMAS RABOIN
13
14
15
16
17
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19
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22
23
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EXHIBIT A
They Could Be Heroes, LLC

Operating Agreement
A. TEllS OPERAT]NG AGREEMENT of They Could Be Heroes, LLC (the
Company) is entered into as of the date set forth on the signature page hereto by each of the
persons named in Exhibit A hereto (referred to individually as a Member and collectively as the
Members).
B. The Members have formed a limited liability company under the Beverly-Killea
Limited Liability Company Act (California Limited Liability Company Act). The articles of
organization of the Company filed with the California Secretary of State are hereby adopted and
approved by the Members.
C. The Members enter into this agreement to provide for the governance of the Company
and the conduct of its business, and to specify their relative rights and obligations.
NOW ThEREFORE, the Members agree as follows:
ARTICLE 1: DEFINITIONS
Capitalized terms used in this agreement have the meanings specified in this Article or
elsewhere in this agreement and when not so defined shall have the meanings set forth in the
California Limited Liability Company Act.
Capital Conthbution means the amount of cash, property or services coniributed to the
Company.
Company means They Could Be Heroes, LLC, a California limited liability company.
Member means a Person who acquires Membership Interests, as permitted under this
agreement, and who becomes or remains a Member.
Membership Interests means either Percentage Interest or Units, based on how
ownership in the Company is expressed on Exhibit A.
Percentage Interest means a percent ownership in the Company entitling the holder to
an e onomc and voting interest in the Company.
Person means an individual, partnership, limited partnership, Irust, estate, association,
corporation, limited liability company, or other entity, whether domestic or foreign.
Unit means a unit of ownership in the Company entitling the Member holding such
Unit to an economic interest and a voting interest in the Company.
ARTICLE 2: CAPITAL AND CAPITAL CONTRIBUTIONS

2.1 Initial Capital Contributions and Membership Interests. The Capital
Contributions of the initial Members, as well as the Membership Interests of each Member, are
listed in ExhibiiA, which is made part of this agreement. Membership Interests in the Company
may be expressed either in Units or directly in Percentage Interests.
2.2 Subsequent Contributions. No Member shall be obligated to make additional
capital contributions unless unanimously agreed by all the Members.
2.3 Capital Accounts. Individual capital accounts may be maintained for each Member
consisting of that Members Capital Contribution, (1) increased by that Members share of
profits, (2) decreased by that Members share of losses and company expenses, (3) decreased by
that Members distributions and (4) adjusted as required in accordance with applicable tax laws.
2.4 Interest. No interest shall be paid on Capital Contributions or on the balance of a
Members capital account.
2.5 Limited Liability. A Member shall not be bound by, or be personally liable for, the
expenses, liabilities, or obligations of the company except as otherwise provided in this
agreement or as required by law.
ARTICLE 3: ALLOCATIONS AN]) DISTRIBUTIONS
3.1 Mloeations. The profits and losses of the Company and all items of Company
income, gain, loss, deduction, or credit shall be allocated, for Company book purposes and for
tax purposes, pro rata in proportion to relative Membership Interests held by each Member.
3.2 Distributions. The Company shall have the right to make distributions of cash and
property to the Members pro rata based on the relative Membership Interests. The timing and
amount of distributions shall be determined by the Managers in accordance with California law.
ARTICLE 4: MANAGEMENT
4.1 Management. The business of the Company shall be managed by one or more
Managers. The Members initially nominate and elect the person(s) set forth in Exhibit B to serve
as Manager(s) of the Company. Managers shall serve at the pleasure of the Members and may
be elected or removed by Members holding a majority of the Membership Interests. Exhibit B
-2-
shall be amended from time to time to reflect any changes in Managers. In the event of a dispute
between Managers, final determination shall be made by a vote of the majority ofthe Managers.
Any Manager may bind the Company in all matters in the ordinary course ofbusiness.
4.2 Meetings of Managers Regular meetings of the Managers are not required but may
be held at such time and place as the Managers deem necessary or desirable for the reasonable
management of the Company. Meetings may take place in person, by conference telephone or
by any other means permitted under California law. In addition, actions may be taken without a
meeting if all of the Managers sign a written consent reflecting the action taken.
4.3 Banking. The Managers are authorized to set up one or more bank accounts and are
authorized to execute any banking resolutions provided by the institution where the accounts are
being set up. All funds of the Company shall be deposited in one or more accounts with one or
more recognized financial institutions in the name of the Company.
4.4 Officers. The Managers are authorized to appoint one or more officers from time to
time. The officers shall hold office until their successors are chosen and qualified. Subject to
any employment agreement entered into between the officer and the Company, an officer shall
serve at the pleasure of the Managers. The current officers of the Company are listed on Exhibit
C.
ARTICLE 5: ACCOUNTS AND ACCOUNTING

5.1 Accounts. Complete books of account ofthe Companys business, in which each
Company transaction shall be fully and accurately entered, shall be kept at the Companys
principal executive office and shall be open to inspection and copying on reasonable notice by
any Member, Manager or their authorized representatives during normal business hours for
purposes reasonably related to the interest of such person as a Member or Manager. The costs of
such inspection and copying shall be borne by the Member or Manager.
52 Records. At all times during the term of existence of the Company, and beyond that
term if the Managers deems it necessary, the Manigers shall keep or cause to be kept the
following:
(a) A current list of the full name and last known business or residence address of
each Member and Manager, together with the Capital Contribution, the amount and terms
of any agreed upon future Capital Contribution, and Membership Interest of each
Member;
(b) A copy of the articles of organization and any amendments;
(e) Copies of the Companys federal, state, and local income tax or information
returns and reports, if any, for the six most recent taxable years; and
-3-
(d) An original executed copy or counterparts of this agreement and any

amendments.
5.3 Income Tax Returns. Within 45 days after the end of each taxable year, the
Company shall use its best efforts to send to each of the Members all information necessary for
the Members to complete their federal and state income tax or information returns and a copy of
the Companys federal, state, and local income tax or infonnation returns for such year.
5.4 Tax Matters Member. Gary Simson shall act as tax matters member of the
Company to represent the Company (at the Companys expense) in connection with all
examinations of the Companys affairs by tax authorities and to expend Company funds for
professional services and costs associated therewith.
ARTICLE 6: MEMBERSHIPMEETINGS, VOTING
6.1 Members and Voting Rights. Members shall have the right and power to vote on
all matters with respect to which this agreement or California law requires or permits such
Member action. Voting shall be based on Membership Interests. Unless otherwise stated in this
Agreement or under California law, the vote ofthe Members holding a majority of the
Membership Interests shall be required to approve or carry an action.
6.2 Meetings. Regular or annual meetings ofthe Members are not required but may be
held at such time and place as the Members deem necessary or desirable for the reasonable
management of the Company.
Meetings may be called by any member or members holding 10% or more ofthe
Membership Interests, for the purpose of addressing any matters on which the Members may
vote. A written notice shall be given not less than 10 days nor more than 60 days before the date
of the meeting to each member entitled to vote at the meeting. In any instance in which the
approval of the Members is required under this agreement, such approval may be obtained in any
manner permitted by California law, including by conference telephone or similar
communications equipment. In addition, notice to any meeting may be waived, and any action
which could be taken at a meeting can be approved if a consent in writing, stating the action to
be taken, is signed by the holders of the ninnrnm Membership Interest needed to approve the
action.
-4-
ARTICLE 7: WITHDRAWAL AND TRANSFERS OF MEMBERSHIP iNTERESTS
7.1 Withdrawal. A Member may withdraw from the Company prior to the dissolution
and winding up of the Company with the unanimous consent of the other Members, or if such
Member transfers or assigns all of his or her Membership Interests pursuant to Section 7.2
below. A Member which withdraws pursuant to this Section 7.1 shall be entitled to a distribution
in an amount equai to such Members Capital Account.
7.2 Restrictions on Transfer. A Member shall not transfer any Membership Interests,
whether now owned or later acquired, unless Members holding a two-thirds majority ofthe
Membership Interests not subject to transfer consent to such transfer. A person may acquire
Membership Interests directly from the Company upon the written consent of all Members. A
person which acquires Membership Interests in accordance with this section shall be admitted as
a Member of the Company after the person has agreed to be bound by the terms of this Operating
Agreement by executing a consent in the form of Exhibit D.
ARTICLE 8: DISSOLUTION AND WINDING UP

8.1 Dissolution. The Company shall be dissolved upon the first to occur of the
following events:
(a) The vote of Members holding a majority of the outstanding Membership
Interests to dissolve the Company.
(b) Entry of a decree of judicial dissolution under Section 17351 ofthe California
Corporations Code.
(c) At any time there are no Members, provided that the Company is not
dissolved and is not required to be wound up if, within 90 days after the occurrence of the
event that terminated the continued membership of the last remaining Member, the legal.
representative of the last remaining Member agrees in writing to continue the Company
and to the admission of the legal representative of such Member or its assignee to the
Company as a Member, effective as of the occurrence of the event that terminated the
continued membership ofthe last remaining Member.
8.2 No automatic dissolution upon certain events. Neither the death, incapacity,
disassociation, bankruptcy or withdrawal of a Member shall automatically cause a dissolution of
the Company.
-5-
ARTICLE .9: INDEMNIFICATION

9.1 Iiidemniflcation. The Company shall have the power to indemnify any Person who
was or is a party, or who is threatened to be made a party, to any proceeding by reason of the fact
that such Person was or is a Member, Manager, officer, employee, or other agent of the
Company, or was or is serving at the request of the Company as a director, manager, officer,
employee, or other agent of another limited liability company, corporation, parinership, joint
venture, trust, or other enterprise, against expenses, judgments, lines, settlements, and other
amounts actually and reasonably incurred by such Person in connection with such proceeding, if
such Person acted in good faith and in a manner that such Person reasonably believed to be in the
best interests of the Company, and, in the case of a criminal proceeding, such Person had no
reasonable cause to believe that the Persons conduct was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction, or upon a plea of nob contendere or its
equivalent, shall not, of itself, create a presumption that the Person did not act in good faith and
in a manner that such Person reasonably believed to be in the best interests of the Company, or
that the Person had reasonable cause to believe that the Persons conduct was unlawful.
To the extent that an agent of the Company has been successful on the merits in defense
of any proceeding, or in defense of any claim, issue, or matter in any such proceeding, the agent
shall be indemnified against expenses actually and reasonably incurred in connection with the
proceeding. In all other cases, indemnification shall be provided by the Company only if
authorized in the specific case unanimously by all of the Members.
Proceeding, as used in this section, means any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative.
9.2 Expenses. Expenses of each Person indemnified under this agreement actually and
reasonably incurred in connection with the defense or settlement of a proceeding may be paid by
the Company in advance of the final disposition of such proceeding, as authorized by the
Members or Managers, as the case may be, who are not seeking indemnification upon receipt of
an undertaking by such Person to repay such amount unless it shall ultimately be determined that
such Person is entitled to be indemnified by the Company.
Expenses, as used in this section, includes, without limitation, attorney fees and
expenses of establishing a right to indemnification, if any, under this section.
ARTICLE 10: GENERAL PROVISIONS
10.1 Entire Agreement; Amendment. This agreement constitutes the whole and entire
agreement ofthe parties with respect to the subject matter of this agreement, and it shall not be
modified or amended in any respect except by a written instrument executed by all ofthe
Members. This agreement replaces and supersedes all prior written and oral agreements by and
among the Members.
10.2 Governing Law; Severability. This agreement shall be construed and enforced in
accordance with the internal laws of the State of California. If any provision of this agreement is
determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or
unenforceable to any extent, that provision shall, ifpossible, be construed as though more
narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or
unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity,
illegality, or unenforceability, be severed, and the remaining provisions of this agreement shall
remain in effect.
10.3 Benefit. This agreement shall be binding on and inure to the benefit of the parties
and their heirs, personal representatives, and permitted successors and assigns.
10.4 Number and Gender. Whenever used in this agreement, the singular shall include
the plural and the plural shall include the singular, and the neuter gender shall include the male
and female as well as a trust, finn, company, or corporation, all as the context and meaning of
this agreement may require.
10.5 No Third Party Beneficiary. This agreement is made solely for the benefit of the
parties to this agreement and their respective permitted successors and assigns, and no other
person or entity shall have or acquire any right by virtue of this agreement.
-7-.
TN WITNESS RKOF,
pC have executed or caused to be executed Ibis
Operating Agreement as of the date below.
Dated:___________
Tom Raboin
4-
EXHIBIT A
MEMBERS
The following persons are the initial Members of the Company, and their initial capital
contributions and ownership is set forth below.
Name
Gary Simson
Tom Rabom
Capital Contribution ($)

$0.00
$0.00
-9-
Percentage Interest
35%
15%
EXHIBIT B
MANAGERS
The foilowing person(s) are elected as Manager(s) ofthe Conipauy
GuyS
Tom Raboin
-10-
EXHIBIT C
OW[CERS
The following person(s) are elected as officers ofthe Company:
Title
President
Vice President
Name of Officer
Gary Simson
Tom Raboin
11
EXHIBIT D
NEW MEMBERS CONSENT
The undersigned agrees to be bound as a Member by the terms of the Operating Agreement of
They Could Be Heroes, LLC as if the undersigned was a signatory thereof.
(Signature)
Name:
Date:
-12-
1
2
3
DEMAND FOR JURY TRIAL

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

HENRY GRADSTEIN
MARYANN R. MARZANO
MATTHEW A. SLATER
4
5
and
FINK & STEINBERG

KEITH A. FINK
S. KEVEN STEINBERG
OLAFJ.MU
7
8
9
10
II
12
By:
OLAFJ. MULL
and THOMAS RABOIN
13
15
16
17
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19
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EXHIBIT D
NEW MEMBERS CONSENT
The undersigned agrees to be bound as a Member by the terms of the Operating Agreement of
They Could Be Heroes, LLC as if the undersigned was a signatory thereof.
(Signature)
Name:
Date:
-12-

They Could Be Heroes v. Gary Simpson

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They Could Be Heroes v. Gary Simpson

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1

GRADSTEIN & MARZANO, P.C.

FINK & STEINBERG

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, CENTRAL DISTRICT

THEY COULD BE HEROES, LLC, a

GARY SIMSON, an individual; and DOES 1

[JURY TRIAL DEMANDED]

COME NOW PLAINTIFFS THEY COULD BE HEROES, LLC and THOMAS

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

does business in Los Angeles County, California.

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

Raboin are collectively referred to herein as Plaintiffs.)

DEEFENDANT GARY SIMSON (Defendant and/or Simson

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

the relief herein requested.

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

in the County of Los Angeles, State of California.

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

inclusive, as though fully set forth herein.

Could Be Heroes (the Film).

continue their discussions.

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

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

use of forty (40) songs.

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

formed and managed this entity. Exhibit A.

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

During the first year of TCBHs operations, Simson interviewed a number of

high-profile musician George Thorogood.

They Could Be Heroes, LLC.

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

the parties had discussed.

year, neither of whom was particularly well-known.

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

The parties henceforth commenced negotiations of the terms of Simsons

mails and verbal communications with Plaintiff Raboin.

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

which offers Plaintiff Raboin politely declined.

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

Raboin assumed ownership of Simsons membership share.

Notwithstanding the same, Defendant Simson refused to relinquish TCBHs

possession, custody and control.

against Defendant Simson.

FIRST CAUSE OF ACTION

BREACH OF WRITTEN CONTRACT

(By PLAINTIFFS AGAINST ALL DEFENDANTS)

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

as though fully set forth herein.

of Plaintiff TCBH. Exhibit A.

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

terms of which are certain and enforceable.

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

Defendants breaches were undertaken without justification or excuse.

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

SECOND CAUSE OF ACTION

PLAINTIFF RABOIN AGAINST ALL DEFENDANTS)

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

as through fully set forth herein.

their subsequent meetings in 2010

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

Films control and profits for himself.

2012 relating to their producer/director agreement