22
23 J Wick Productions, LLC (“J Wick”) for its claims for relief against Defendant Michael
24 Singer (“Singer”) alleges as follows:
25 INTRODUCTION
26 J Wick brings this complaint to compel the turnover of approximately $1.74 million of funds
27 comprising property of the estate that have been improperly withheld from J Wick through the hyper
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1 aggressive litigation tactics of Singer. As more fully described in a separate complaint filed by jointly
2 administered debtor and affiliate MJW Films, LLC (“MJW” and together with J Wick, “Debtors”),
3 Singer, despite holding no direct legitimate claim against J Wick, has sued J Wick and various
4 defendants in litigation in California with the single aim of stepping over the priorities and interests of
5 the creditors of MJW and J Wick by attaching revenues due to J Wick. There are multiple claimants
6 and beneficial claimants on this fund, all of whom have superior rights to Singer. This litigation is
7 brought to ensure that no single creditor can usurp relative debt priorities and misappropriate assets
10 1. MJW was formed to produce quality movies. Its work is sometimes completed
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
11 through specific subsidiaries formed for each discrete project in light of discrete investors, talent, and
Phoenix, Arizona 85012
12 distribution agreements.
13 2. MJW formed J Wick, for the financing and production of what would eventually
14 become the hit film John Wick, a film starring Keanu Reeves that was received positively by
19 5. Mr. Eyde received his 50% interest in exchange for guaranteeing an approximately
20 $7,000,000 loan, which was required to complete John Wick and render it as a marketable
21 commercial film.
22 6. In 2014, MJW ran short of operating cash for one of its projects.
23 7. To resolve its short term cash needs, MJW turned to Singer, a hard-money lender in
24 the movie industry for a short-term loan of $235,000.00 (the “Singer Loan”).
25 8. Singer has thereafter used all his means to leverage the relatively small $235,000
26 unsecured Singer Loan to MJW into an alleged secured claim of more than $2.3 million against not
27 only MJW, but also J Wick (MJW has separately filed for relief from Singer’s actions against its
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1 respective assets).
2 9. As part and parcel of his attempt to leverage a settlement, Singer has tried to extend his
3 claims against MJW to J Wick, as if they were the same entity, despite the fact that J Wick has
5 10. Singer has sought to exercise considerable pressure (as a self-described “multi-centric
6 millionaire” litigant holding a relatively unlimited war chest) against the financially strapped Debtors
7 to extract concessions from them and extraordinary relief through litigation before the California
9 11. On information and belief, Singer is motivated by ill-will toward one of the principals
10 of MJW (which he has indiscriminately imputed to J Wick, other affiliates of MJW, and all of their
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
11 creditors and investors). Singer’s aim is to strip J Wick and its legitimate creditors and interest
Phoenix, Arizona 85012
12 holders from realizing recovery from revenues that are otherwise due to J Wick from the revenues of
14 12. Singer sought and continues to seek to assert his advantage in a “race to the
15 courthouse” against all other creditors and equity holders in contravention of the fair and equitable
16 requirements of the distribution priorities under the Bankruptcy Code and applicable law.
17 13. In light of the foregoing, this adversary proceeding prays for: (1) turn over of monies
18 held constructively by Singer pursuant to 11 U.S.C. §§ 105, 541 and 542; (2) avoidance and recovery
19 for the benefit of its estate of any inchoate liens and interests Singer may claim as to the assets of J
20 Wick pursuant to 11 U.S.C. §§ 544 et seq., 547 and 550; (3) determination of the extent, validity, and
21 priority of Singer’s claims against J Wick and its estate assets; and (4) equitable subordination of
24 Wick’s bankruptcy schedules as well as any subsequent proof of claim that may be filed by Singer.
26 15. On October 22, 2018 (the “Petition Date”), J Wick filed a voluntary petition for relief
27 under chapter 11 of Title 11 of the U.S. Code (the “Bankruptcy Code”). Since the Petition Date, J
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1 Wick has remained in possession of its assets (except those improperly distrained by and at the behest
3 11 U.S.C. §§ 1107 and 1108. J Wick has all of the rights and powers of a trustee in bankruptcy
6 a foreign entity with the Arizona Corporation Commission and with its principal place of business in
7 Gilbert, Arizona.
9 18. Singer loaned monies to MJW and asserted claims against J Wick prior to the Petition
10 Date.
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
11 19. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 157(b) and 1334
Phoenix, Arizona 85012
13 20. This adversary proceeding constitutes a core proceeding within the meaning of
14 28 U.S.C. § 157(b)(2)(A), (B), (E), (F), (G), (H), (K) & (O). J Wick consents to final judgment by
16 21. Singer asserts an invalid and/or avoidable secured claim against, among other things, J
17 Wick’s income stream from John Wick, which constitutes property of J Wick’s bankruptcy estate.
18 22. This Complaint arises under Chapter 5 of Title 11 of the United States Code,
19 specifically 11 U.S.C. §§ 502, 506(d), 541, 542, 544, 547, and 550.
20 23. Resolving these causes of action is a necessary step in the allowance or disallowance
21 of Singer’s claims, determining the validity of any asserted liens, and formulating equitable
23 24. J Wick’s reorganization case is properly venued in the Phoenix Division of the United
24 States Bankruptcy Court for the District of Arizona. As such, venue is proper for this Adversary.
26 25. In approximately July of 2013, Mike Witherill (“Witherill”) and John Glassgow
27 (“Glassgow”) formed MJW with Witherill serving as its Chief Operating Officer and Glassgow as its
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1 Chief Financial Officer. MJW was formed to produce motion pictures.
2 26. In 2013, MJW caused J Wick to be formed in order to produce John Wick.
3 27. While John Wick was in production, MJW and certain others separately formed an
4 entity called Stuck Productions, LLC (“Stuck Productions”), an entity formed to produce a film called
5 Stuck.
6 28. The film Stuck was primarily produced on a budget financed by third party loans to
7 Stuck Productions with MJW as co-borrower or guarantor. Stuck was filmed in 2014 after primary
8 production of John Wick, and wrapped production just prior to the John Wick release.
9 29. During the production of Stuck, MJW and Stuck Productions experienced a series of
10 financial setbacks including a shortfall in funding at the very end of Stuck’s production which
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
11 threatened Stuck Productions’ ability to make union production payroll that could potentially shut-
Phoenix, Arizona 85012
12 down filming.
13 30. MJW bridged Stuck’s financial gap by undertaking the Singer Loan for the benefit of
14 Stuck Productions.
15 31. True and correct copies of the Singer Loan documents are attached hereto collectively
16 as Exhibit A.
18 33. MJW subsequently defaulted under the terms of the Singer Loan.
19 34. On October 7, 2014, Singer sued MJW and Witherill in the California Court in a case
20 styled as Singer v. MJW Films, LLC, et al, Case No. BC559972 (the “Singer Judgment Action”) in
22 35. On information and belief, on or after October 22, 2014, the parties exchanged
23 signatures to a Settlement Agreement dated October 10, 2014 (“Singer Settlement Agreement”)
24 pursuant to which MJW and Witherill jointly agreed to pay a total settlement sum of $700,000 to
25 Singer in order to satisfy MJW’s and Witherill’s obligations for the Singer Loan and an additional
26 approximately $1.44 million of claims alleged by Singer against Witherill arising in connection with a
27 prior film project that did not involve MJW (the “Singer H&W Claims”).
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1 36. A true and correct copy of the Singer Settlement Agreement is attached hereto as
2 Exhibit B.
3 37. The Singer Settlement Agreement further required MJW and Witherill to execute and
4 deliver a “pocket judgment” to Singer providing for a judgment against both MJW and Witherill in
5 favor of Singer in the collective amount of $2 million (the “Singer Judgment”) that Singer was
6 entitled to lodge with the California Court upon default by MJW and Witherill under the terms of the
8 38. MJW and Witherill were unable to timely raise the funds necessary to satisfy their
9 obligations under the Singer Settlement agreement and Singer subsequently lodged and obtained
11 39. A true and correct copy of the Singer Judgment is attached hereto as Exhibit C.
Phoenix, Arizona 85012
12 40. On December 27, 2016, Singer subsequently filed a complaint (the “Singer
13 Complaint”) to initiate a supplemental proceeding before the California Court in a case styled as
14 Singer v. MJW Films, LLC, et al, Case No. BC 644917 (the “Singer Enforcement Action”) against
15 MJW, Witherill, and certain third parties including, among others, J Wick, Freeway CAMA B.V., and
16 Freeway Entertainment Group B.V. (collectively, “Freeway”). A true and correct copy of the Singer
18 41. Through the Singer Enforcement Action, Singer sought to enforce the Singer
19 Judgment and, among other things, directly and improperly reach John Wick’s revenues payable
20 directly to J Wick under that certain Collection Account and Management Agreement (“CAMA”)
21 between and among J Wick, and certain third parties involved in the production of John Wick.
22 42. The CAMA is consistent with common practice in the film industry, under which a
23 third party collection and payment agent is retained to collect and distribute proceeds of a film to the
24 various persons and entities that are entitled to share in the income stream.
25 43. In response to Singer’s efforts in the Singer Enforcement Action, Freeway filed a
26 cross-complaint for interpleader and has subsequently deposited approximately $1.754 million with
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1 44. There are additional funds in the CAMA in which J Wick holds an interest, which are
2 subject to claims of other creditors and interest holders, and additional funds will continue to be
3 deposited in the CAMA for the benefit of J Wick, as additional royalties and other payments due are
4 received.
5 45. On or about September 19, 2018, Scott Weisenberger, a creditor of J Wick, sought to
6 intervene in the Singer Enforcement Action in order to protect his interests in the Interpleader Funds.
7 46. On October 17, 2018, the California Court issued a minute entry (the “Weisenberger
8 Order”) denying Weisenberger’s request to intervene. A true and correct copy of the Weisenberger
10 47. The California Court indicated in denying the intervention request that, among other
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
12 48. As of the entry of the Weisenberger Order, the California Court had under advisement
13 a form of order lodged by Singer pursuant to which the California Court was to order the foreclosure
15 49. As of the Petition Date, the California Court’s docket for the Singer Enforcement
17 50. As of the Petition Date, the Singer Enforcement Action was stayed with respect to the
19 51. Following the Petition Date, counsel for Singer served a form of order of foreclosure
20 purportedly entered by the California Court on or about October 18, 2018 ordering the sale of MJW’s
22 52. The property of J Wick’s bankruptcy estate includes, among other things, its interests
24 53. On information and belief, Singer asserts an interest in the Interpleader Funds.
25 54. On information and belief, Singer asserts a claim against J Wick of more than $2.3
26 million.
27 55. J Wick objects to any claim by Singer as to J Wick and its estate and requests
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1 disallowance of the same.
2 56. Some or all of the Singer Judgment is avoidable pursuant to 11 U.S.C. § 544(b) and
3 A.R.S. § 44-1001 et seq. MJW has separately filed an adversary proceeding to avoid its obligations
5 COUNT I
Injunctive Relief to Compel Turnover of Interpleader Funds
6 Pursuant to 11 U.S.C. §§ 105, 541, and 542 and Enforce Automatic Stay.
7 57. J Wick incorporates by reference the allegations set forth in the preceding paragraphs
9 58. In the Singer Complaint, Singer asserts eight counts against all named defendants,
10 including MJW and J Wick: (1) seeking garnishment as to Freeway and J Wick to attach obligations
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
11 of such parties to MJW; (2) accounting by all defendants as to monies owed to MJW and Witherill;
Phoenix, Arizona 85012
12 (3) imposing a constructive trust on any property, rents, issues or profits in the possession of the
13 defendants that directly or indirectly belong to MJW or Witherill (defined by Singer as “Funds”); (4)
14 conversion claims against defendants in connection with allegedly improper disbursements of CAMA
15 funds by Freeway in 2016; (5) injunctive relief determining that Singer may execute upon the Funds;
16 (6) claims for fraud and deceit in the handling of the Funds; (7) fraudulent transfer claims seeking to
17 avoid and recover Funds as actually and constructively fraudulent; and (8) unjust enrichment claims
19 59. Singer’s prosecution of claims against Freeway resulted in Freeway depositing the
21 60. Singer’s actions have deprived J Wick of its rightful use and access of and to the
22 Interpleader Funds.
23 61. J Wick has separate and discrete interest holders from those in MJW, all of whom are
24 entitled to have their claims paid in accordance with the relative bankruptcy priorities of their interest,
25 and all of whom will be prejudiced if the Singer Enforcement Action is permitted to improperly
27 62. Other than J Wick, none of the defendants in the Singer Enforcement Action claim an
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1 interest in the Interpleader Funds.
2 63. As a result of the Singer Enforcement Action, Singer is constructively holding the
3 Interpleader Funds.
4 64. Pursuant to 11 U.S.C. §§ 541 and 542 Singer is required to cooperate with the turnover
5 of the Interpleader Funds to J Wick for the benefit of its bankruptcy estate.
6 65. On information and belief, Singer refuses to cooperate with the turnover of the
7 Interpleader Funds to J Wick, which are property of the J Wick estate, in violation of the automatic
9 WHERFORE, J Wick requests that this Court enter judgment in its favor and against Singer
10 on Count I granting injunctive relief (i) determining that the Interpleader Funds and all future
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
11 revenues payable to J Wick under the CAMA comprise assets of the J Wick’s bankruptcy estate; (ii)
Phoenix, Arizona 85012
12 compelling Singer to cooperate with the turnover of the Interpleader Funds 1; and (iii) awarding J
13 Wick appropriate damages for Singer’s willful violation of the automatic stay.
14 COUNT II
Avoidance of and Recovery of Preferential Transfer and Exercise of Strong-Arm Powers
15 Pursuant to 11 U.S.C. §§ 544 et. Seq., 547 and 550
16 66. J Wick incorporates by reference the allegations set forth in the preceding paragraphs
18 67. The Foreclosure Procedure Order is alleged to have been entered on October 18, 2018,
20 68. Singer purported to be a creditor of J Wick at the time of the entry of the Foreclosure
21 Procedure Order.
22 69. On information and belief, Singer alleges that the Foreclosure Procedure Order
23 resulted in an inchoate lien in favor of Singer as to MJW’s 50% interest in J Wick and the revenues
24 1
On information and belief, the California Court will abide by an order of this Court requiring
turnover of funds in its registry to this Court’s registry or to J Wick as debtor-in-possession as may be
25
ordered. Debtors reserve the right to seek process as to the California Court as a nominal party or a
26 “custodian” of such interpleaded funds.
2
In the event it is determined that the Foreclosure Procedure Order was entered after the Petition Date
27 nunc pro tunc, MJW reserves its right to pursue avoidance of the order pursuant to 11 U.S.C. § 549.
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1 from John Wick otherwise payable to J Wick under the CAMA (the “Lien Transfer”).
2 70. The Lien Transfer was made to or for the benefit of Singer, within the meaning of
3 11 U.S.C. § 547(b)(1), because the Lien Transfer purportedly arose on account of an antecedent debt
5 71. J Wick is presumed to have been insolvent at the time of the Lien Transfer pursuant to
6 11 U.S.C. § 547(f).
7 72. The Lien Transfer, if maintained, would enable Singer to receive more on account of
8 antecedent debts owed by J Wick than Singer would have received if, as of the date of the Lien
9 Transfer, J Wick had commenced a case under chapter 7 of the Bankruptcy Code, the Lien Transfer
10 had not been made, and Singer received payment on account of the corresponding antecedent debt to
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
12 73. To the extent any lien or inchoate lien has been granted to or for the benefit of Singer
13 as to his claims, such lien is inferior to that of J Wick as debtor-in-possession under § 544 of the
14 Bankruptcy Code.
15 WHEREFORE, J Wick requests that this Court enter judgment in its favor and against
16 Singer on Count II as follows: (i) declaring that the Lien Transfer is an avoidable preference
17 pursuant to 11 U.S.C. § 547(b); (ii) declaring that J Wick may recover the Lien Transfer from Singer
18 pursuant to 11 U.S.C. § 550 for the benefit of its estate; (iii) declaring that any lien or inchoate lien
19 that has been granted to or for the benefit of Singer as to his claims is inferior to that of J Wick as
20 debtor-in-possession under § 544 of the Bankruptcy Code; and (iv) granting such other and further
22 COUNT III
Objection to Singer’s Alleged Claim and Request for Determination
23 of the Extent, Validity of any Lien and Allowance of Claim
24 74. J Wick incorporates by reference the allegations set forth in the preceding paragraphs
26 75. Singer alleges a claim against J Wick in an amount that exceeds $2.3 million (the
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1 76. Singer alleges an interest in, among other property of the estate, the Interpleader Funds
2 and future funds distributable under the CAMA as security for his claim.
3 77. Further, Singer is a transferee of transfers that may be avoided under 11 U.S.C. § 547
4 and A.R.S. § 44-1001 et seq., and J Wick may recover such transfers from Singer under 11 U.S.C.
5 § 550.
6 78. J Wick objects to the allowance of the Singer Alleged Claim in any amount and the
7 extent of any interests Singer may claim in property of its estate as security for the Singer Alleged
8 Claim.
9 79. Moreover, to the extent that any transfers alleged hereinabove are avoided, the Singer
10 Alleged Claim must be reclassified or disallowed so that Singer is treated as the holder of one non-
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
12 WHEREFORE, J Wick requests that this Court enter judgment in its favor and against Singer
13 on Count III as follows: (i) determining the extent, validity, and allowance of the Singer Alleged
14 Claim and (ii) granting such other and further relief as the Court deems just and equitable.
15 COUNT IV
Equitable Subordination Pursuant to 11 U.S.C. § 510
16
17 80. J Wick incorporates by reference the allegations set forth in the preceding paragraphs
19 81. Through the Singer Settlement Agreement and Singer Judgment Action, Singer abused
20 his position as a discrete lender to MJW and through gross inequitable conduct induced MJW to agree
21 to a stipulation for judgment and judgment against MJW in an amount that far exceeded any amounts
23 82. Singer has consistently demonstrated personal animus towards Witherill, which has
24 been visited upon J Wick and other affiliates that have arms-length, third party creditors and
25 investors. As a result of such animus, Singer has exhibited his unwillingness to deal in good faith
26 with MJW, J Wick, their affiliates, or their third party creditors and investors.
27 83. Singer has asserted that other creditors of J Wick may not participate in the Singer
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1 Enforcement Action, depriving such creditors of a forum to redress their asserted interests in the
3 84. Singer has wrongfully used his claim against MJW, a mere member of J Wick, to
4 exercise dominion and control over property of J Wick in which MJW had no direct interest, thus
6 85. Singer has and continues to threaten to use his considerable economic resources to
7 conduct a war of attrition against MJW and J Wick to the detriment of J Wick and its creditors and
8 equity holders.
9 86. Since the Petition Date, Singer has threatened to engage in scorched earth tactics
10 including an attempt to disqualify counsel for J Wick solely for litigation and tactical gain.
3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
11 87. Singer’s conduct has been grossly inequitable and resulted in injury to J Wick, its
Phoenix, Arizona 85012
13 88. Singer’s actions giving rise to the Singer Alleged Claim, including his actions and
14 representations to the California Court in the process of his obtaining relief in the Singer Enforcement
15 Action, and his continued prosecution of the action in violation of the automatic stay (addressed in a
16 separate complaint by MJW), have been so egregious and amount to such gross inequitable conduct
17 that the Singer Alleged Claim, to the extent it is allowed at all, should be equitably subordinated to
18 those of other creditors in the J Wick case, including, without limitation, subordination of any liens
20 WHEREFORE, J Wick requests that this Court enter judgment in its favor and against Singer
21 on Count IV as follows: (i) determining the extent, validity, and allowance of the Singer Alleged
22 Claim; (ii) subordinating the Singer Alleged Claim as appropriate under the facts and circumstances
23 of this proceeding; and (iii) granting such other and further relief as the Court deems just and
24 equitable.
25 ///
26 ///
27 ///
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1 DATED this 10th day of December, 2018.
8
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3636 North Central Avenue, Suite 700
ENGELMAN BERGER, P.C.
11
Phoenix, Arizona 85012
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EXHIBIT “A”
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LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is entered into between MJW Films, LLC, an Arizona limited liability
company ("Borrower"), on the one hand, and Michael Singer, an individual ("Lender"), on the other hand, with
respect to the theatrical motion picture presently entitled "Stuck" (the "Picture") to be produced by Borrower.
A. WHEREAS, Lender, through H&W Movie Partners, LLC ("H&W"), previously advanced
$1,250,000 to Lender as an equity investment in Lender (the "H&W Investment");
B. WHEREAS, Lender, through H&W, previously extended to Warrior Films, LLC ("Warrior"), which
owns a 15% interest in Lender, a bridge loan in the amount of $550,000, of which $205,000
remains owing to Warrior (the "H&W Bridge Loan");
C. WHEREAS, Borrower requires funds for the purpose of covering certain costs and expenses in
connection with the production of the Picture;
D. WHEREAS, Lender is willing to loan $235,000 to Borrower (the "Loan") to be used in connection
with the Picture in consideration for certain returns and credits as set forth herein and the
Promissory Note attached as Exhibit A;
E. WHEREAS, in connection with the Loan, Borrower shall give Lender a security interest in the
Collateral (as defined in the Security Agreement attached as Exhibit B);
F. WHEREAS, in connection with the Loan, Lender and Borrower also wish to restructure the
parties' rights and obligations under the H&W Investment and the H&W Bridge Loan.
1. Loan. Pursuant to the Promissory Note attached hereto and related agreements, Lender shall
wire the sum of $235,000 (the "Principal") to Borrower on or before July 10, 2014. Interest shall accrue
and be payable on the Principal amount of the Loan at the rate of $5,000 per day from the date of
Borrower's receipt of the Principal (the "Interest").
2. Return. Interest shall be payable until such time as the entire Principal, together with any
accrued Interest and other unpaid charges or fees hereunder, is paid in full. Such payments shall be
made to Lender at such place as Lender may designate. Such payments received hereunder shall be
applied, first, to any costs incurred by Lender in collecting such payment; second, to accrued Interest;
and third, to Principal. Notwithstanding the foregoing, Borrower may prepay Interest and/or Principal at
any time without penalty.
3. H&W Investment and H&W Bridge Loan. As further consideration for the Loan, Lender and
Borrower agree that in lieu of Lender's obligations under the agreement(s) entered into in connection
with the H&W Investment and/or the H&W Bridge Loan (collectively, the "H&W Agreements"), Lender
shall be entitled to receive an amount equal to 50% of all profit distributions from Lender to Michael J.
Witherill (i.e., Michael J. Witherill's share of Lender profits) and 50% of all personal income received by
Michael J. Witherill from Lender (i.e., in the form of salary, fees, and other forms of compensation) until
such time as Lender has recouped the full amount of the H&W Investment and the outstanding balance
of the H&W Bridge Loan (the "H&W Obligation"). At such time as the H&W Obligation has been
Further, Lender acknowledges and agrees that there shall be no crossing of Borrower's obligations
or Lender's rights in connection with the Loan and the H&W Obligation (e.g., Borrower's breach or
default in connection with the H&W Obligation shall not constitute a breach or default of the Loan
evidenced by this Agreement and vice versa, and in no event shall Lender be entitled to exercise its
rights in connection with the Loan by virtue of a breach or default of the H&W Obligation). Further,
Lender represents and warrants that Lender has the full right and authority to enter into this
Agreement on behalf of H&W.
5. Further Assurances. From time to time, as requested by Lender, Borrower shall execute and
deliver, or cause to be executed and delivered all such documents and instruments and will take, or
cause to be taken, all such reasonable actions, as Lender may reasonably deem necessary or desirable to
consummate the transactions contemplated by this Agreement.
6. Notices. Any notice or other communication required or permitted pursuant to this Agreement
shall be deemed given (i) when personally delivered to any officer of the party to whom it is addressed,
(ii) on the earlier of actual receipt thereof or five (5) days following posting thereof by certified mail,
postage prepaid, return receipt requested, or (iii) upon actual receipt thereof when sent by a recognized
overnight delivery service, or (iv) upon actual receipt thereof when sent by facsimile to the number set
forth below with electronic confirmation of receipt and subsequently confirmed by registered or certified
mail, return receipt requested, or by recognized overnight delivery service to the address set forth
below, in each case addressed to the applicable party at its address set forth below or at such other
address as has been furnished in writing by such party to the other by like notice:
If to Borrower:
i) uA
or at such other address, facsimile or telephone number or to the attention of such other individual or
department as the party to which such information pertains may hereafter specify for the purpose in a
notice to the other specifically captioned "Notice of Change of Address."
7. Confidentiality. Each party agrees that it will not, without the prior consent of the other party,
disclose to any person not a party hereto any of the terms of this Agreement and will use all reasonable
efforts to have all such information kept confidential, except that each party may use, retain, and
disclose any such information (a) to its counsel, accountants, auditors, lenders, members and their
respective legal counsel or other agents who agree to hold such information confidential, (b) that has
been publicly disclosed (other than by such party in breach of this Section) or has rightfully come into the
possession of such party on a non-confidential basis, or (c) as required by law, rule, regulation, or any
governmental agency or authority.
8. Construction, Headings. All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the identity of the persons, entity or entities may
require. Unless the context otherwise requires, references to agreements shall be deemed to mean and
include such agreements as the same may be amended, supplemented or otherwise modified from time
to time. Paragraph and section headings contained in this Agreement are inserted for convenience of
reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any
way define or affect the meaning, construction or scope of any of the provisions hereof.
9. Severability. The provisions of this Agreement are intended to be severable. If for any reason
any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
11. Governing Law. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California without giving effect to its conflicts of law principles.
12. Jurisdiction. Each party hereby irrevocably submits to the non-exclusive jurisdiction of any
Arizona State or United States Federal Court sitting in Los Angeles, California, over any action or
proceeding arising out of or relating to this Agreement, and each party hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in such California State or
Federal Court. Each party irrevocably consents to the service of any and all process in any such action or
proceeding by the serving of copies of such process to such party at its address. Each party agrees that
By:
Michael Singer
By:'
Michaej/J. Witherill
Its: Manager
FOR VALUE RECEIVED, this Promissory Note (the "Note") is made and executed as of the date referred to above,
by and between MJW Films, LLC, an Arizona limited liability company ("Borrower"), and Michael Singer, an
individual ("Lender"). By this Note, Borrower promises and agrees to pay to the order of Lender, at
or at such other place as Lender may designate in writing, the principal sum of
Two Hundred Thirty Five Thousand Dollars ($235,000.00) (the "Principal") together with interest in the amount of
Five Thousand Dollars ($5,000.00) per day (the "Interest") until all Principal and Interest are paid in full pursuant to
the terms of the Loan Agreement of even date herewith (the "Loan Agreement") to which reference is hereby
made. All the definitions, terms, covenants and conditions of the Loan Agreement and any instrument referenced
in the Loan Agreement are hereby made a part of this Note and are deemed incorporated herein by reference as
though fully set forth.
Prepayment in whole or part may occur at any time hereunder without penalty. All payments received by Lender
hereunder will be applied, first, to any costs or expenses incurred by Lender in collecting such payment; second, to
accrued interest, and third, to principal.
Failure to pay the Principal or Interest to Lender when due will be an Event of Default. Upon the occurrence of an
Event of Default, this Note may, without demand, notice or legal process of any kind, be declared due and
payable in full as to all then outstanding principal and accrued interest, and upon such declaration the Note will
immediately become due and payable in full, without declaration, as to all then outstanding principal plus accrued
interest.
This Note is also entitled to the benefit and security of the security agreement entered into between Lender and
Borrower as of July 10, 2014 (the "Security Agreement"), to which reference is hereby made for a statement of all
the terms and conditions under which the Note evidenced hereby has been made and is to be repaid. All the
definitions, terms, covenants and conditions of the Security Agreement and any instrument referenced in the
Security Agreement are hereby made a part of this Note and are deemed incorporated herein by reference as
though fully set forth. The Borrower consents to the filing and perfection of the Lender's security interest in the
Collateral (as defined in the Security Agreement).
This Note is also entitled to the benefit and security of the personal guaranty entered into between Lender and
the principal of Borrower, Michael J. Witherill, and Stuck Subway Movie, Inc., as of July 10, 2014 (the "Guaranty"),
to which reference is hereby made for a statement of all the terms and conditions under which the Note has been
made and is to be repaid. All the definitions, terms, covenants and conditions of the Guaranty and any instrument
referenced in the Guaranty are hereby made a part of this Note and are deemed incorporated herein by reference
as though fully set forth.
In the event that Borrower fails to pay when due any payment due under this Note, Borrower will be liable for all
costs, including without limitation legal and other expenses incurred in connection with the collection and
satisfaction of the obligations hereunder.
Wherever possible each provision of this Note will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Note will be prohibited or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder
of such provision or remaining provisions of this Note.
BORROWER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS NOTE OR ANY OF THE OTHER LOAN
DOCUMENTS, WHETHER ARISING IN CONTRACT OR TORT OR OTHERWISE.
1
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THIS NOTE WILL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF,
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
BORROWER HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN LOS
ANGELES, CALIFORNIA, WILL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTE BETWEEN BORROWER AND LENDER PERTAINING TO THIS NOTE OR TO ANY MATTER ARISING
OUT OF OR RELATING TO THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS.
By>
Name:
Title:
MICHAEL J. WITHERILL
An Individual
By:
2
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Personal Guaranty
WHEREAS, MJW Films, LLC, an Arizona limited liability company ("Borrower"), desires
to obtain a loan from Michael
^Singer, an individual ("Lender"), as evidenced by the Loan Agreement and Promissory
Note attached hereto as Exhibits A
and B, respectively, and incorporated herein by this reference (the "Loan");
WHEREAS, Lender is unwilling to extend the Loan to Borrower unless it receives this guaranty
of the undersigned covering
the Liabilities of Borrower to Lender, as hereinafter defined (the "Guaranty").
NOW THEREFORE, in consideration of the promises and other good and valuable consideratio
n contained herein, and in
order to induce Lender to extend the Loan and other consideration and credit to Borrower
of whatever nature, whether
now existing or hereafter incurred, whether created directly or acquired by Lender by
assignment or otherwise, whether
matured or unmatured and whether absolute or contingent (all of which are herein
collectively referred to as the
"Liabilities of Borrower"), the undersigned hereby agree to bind themselves and to personally
guaranty and pay Lender on
demand all of Borrower's obligations under the Loan Agreement and Promissory Note
whenever Borrower shall fail to
timely satisfy such obligations. Further, the undersigned hereby subordinates any indebtednes
s that Borrower may owe to
the undersigned to the indebtedness of Borrower to Lender. The undersigned agree
to pay and perform in accordance
with the Loan documents between Lender and Borrower, without requiring Lender
to exercise, pursue or enforce any right
or remedy Lender has against Borrower, any co-guarantor (whether hereunder or
under a separate instrument) or any
other party.
The undersigned agrees that, with or without notice or demand, the undersigned shall
reimburse Lender, to the extent
that Borrower fails to make such reimbursement, for all expenses (including without limitation
reasonable outside counsel
fees) incurred by Lender in connection with any of the Liabilities of Borrower orthe collection
thereof.
This Guaranty is a continuing guaranty and shall remain in full force and effect irrespective
of any interruptions in the
business relations of Borrower with Lender.
All monies available to Lender for application in payment or reduction of the Liabilities
of Borrower may be applied by
Lender in such manner and in such amounts and at such time or times as it may see fit
to the payment or reduction of such
of the Liabilities of Borrower as Lender may elect, and the obligations pursuant to this Guaranty
shall not be affected by
any surrender or release by Borrower of any other security held by it for any claim
hereby guaranteed.
The undersigned hereby waives: (a) notice of acceptance of this Guaranty and of extensions
of credit by Lender to
Borrower; (b) presentment and demand for payment of any of the Liabilities of
Borrower; (c) protest and notice of
dishonor or default to the undersigned or to any other party with respect to any of the
Liabilities of Borrower; (d) all other
notices to which the undersigned might otherwise be entitled; and (e) any demand for payment
underthis Guaranty.
This is a Guaranty of payment and not of collection and the undersigned further waives any
right to require that any action
be brought against Borrower or any other person or to require that: (a) resort be had
to any security; or (b) to any balance
of any deposit account or credit on the books of Lender in favor of Borrower or any other
person.
No delay on the part of Lender in exercising any rights hereunder or failure to exercise
the same shall operate as a waiver
..of such rights; no notice to or demand on the undersigned shall be deemed to be a
waiver of the obligations of the
mdersigned or of the right of Lender to take further action without notice or demand as provided
herein; nor in any event
•This Guaranty is, and shall be deemed to be, a contract entered into under and
pursuant to the laws of the State of
California and shall be in all respects governed, construed, applied and enforced in accordance
with the laws of said State,
and no defense given or allowed by the laws of any other state of the United States
of America shall be interposed in any
action hereon unless defense is also givenojiallowed by the laws of the State of California.
By:
Mich^epc Witherill
Address: j r£_ (
ArZ-
Witness:
-S*
{0099999.0012/00701096.DOCX / }
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£
RECITALS
1
#177<92v3
AGREEMENT
1. Incorporation of Recitals.
2
#!77492v3
B. Performance by Singer:
&
3
#177492v3
B. ' If MJW Films and Witherill breach this Agreement and fail to
cure said
breach according to the terms provided herein, Singer shall be entitled
to a judgment against
MJW Films and Witherill in the amount identified in the Stipulati
on for Judgment, attached
hereto as Exhibit "A", less any amounts paid, as set forth in the
Stipulation for Judgment.
—•i With respect to the matters being released pursuant to this Agreeme
nt, MJW
Films and Witherill hereby expressly waive and relinquish all the
rights and benefits which they
might otherwise have or claim to have, with regard to any purporte
:r< d claims, rights, causes of
action, or damages as alleged in the Recitals or in the lawsuit under
:_d the provisions of Section
1 542 of the California Civil Code, which provides as follows:
.
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#1 77492 v3
Xa. i
MJW Fi' With!
7. No Assignment of Claim.
. Each of the Parties hereto represents and warrants to the other Parties
that it has
not previously assigned, transferred, or purported to assign or transfer
to any person, corporation,
or Other entity, either voluntarily or involuntarily, any claim,
cause of action, or right based on or
arising out of or in connection with any matter, fact, or thing
to which this release was given or •
to Which this Agreement pertains. '
8. Governing Law.
9. Binding on Successors.
i •
This Agreement is and shall be binding upon and shall inure to the benefit
of the
. predecessors, successors, subsidiaries, affiliates, representatives, assigns,
directors, partners, co-
owners, officers, agents, attorneys, and employees of each of the Parties
hereto, and their heirs,
attorneys, and assigns. ' ; . ' ' -
10. Notices.
For purposes of any notice herein, including, but not limited to, this Agreeme
nt,
notices all shall be sent as follows:
%
—•I
3
Fax:
" • :,d
Telephone:
V As to Singer:
3 Sanford Michelman, Esq.
,.;i Michelman & Robinson, LLP
Li
15760 Ventura Boulevard, 5th Floor
Encino, CA. 91436
5
#]77492v3
13. Construction.
14. Authorization.
V
The Parties each warrant and represent to the others that each has'
CD' full and •
complete authority and right to execute this Agreement and such executio
n shall constitute a full
and final resolution of all differences, allegations, and claims as described
in the Agreement.
CD
—•!
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# 1 77492 v3
-DATED:-Octobcr:---2Q14— -•
'• "'-By;--;
Michael Witherill, Managing Member
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EXHIBIT "A1
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EXHIBIT D-l
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' 7
10 CENTRAL DISTRICT
11
MICHAEL SINGER, an individual
CASE NO.: BC559972
12'
17 Defendants.
18
i
19
TO THE HONORABLE COURT, ALL PART
20
IES AND THEIR ATTORNEYS OF
RECORD:
21
IT IS HEREBY STIPULATED BY AND BETW
;i
EEN MICHAEL SINGER, an
22
. ,~-i ~f individual ("SINGER"), on one hand, and MJW
FILMS, LLC, an Arizona limited liability
23 company ("MJW FILMS") and MICHAEL J. WITHERILL
("WITHERILL") on the other hand,
3
24 as follows:
b.i .
25. 1. SINGER shall have Judgment against MJW
FILMS and WITHERILL in the
26 amount calculated as follows: Two Million Dollar
s ($2,000,000.00), less payments received
3 from and/or through MJW FILMS and WITHERIL
27 L after execution of this Stipulation ol
& 28
#177491
STIPULATION FOR JUDGMENT
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.7 • MJW Films, LLC, an Arizona limited &'
liability company F
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Michael Witherill I
15. I
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DATED: October ,2014 i •
: .. J.7..
.Michael Singer.:......: (
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STIPULATION FOU JUDGMENT
NEW NOTE
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EXHIBIT D-2
#I7?192v2
{0099999.0012/00701096.DOCX / }
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Main Document Page 36 of 63
'4
Suiperior Court 6f California
County of Loi Angeles
10
13 .v.
14 ifi&j JUDGMENT
MJW FILMS, LLC an Arizona limited liability
company; MICHAEL J. WITHERILL; and
15
DOES 1 through 100, inclusive. .
16 Complaint filed: 10/7/14
Defendants.
17
18
19
24 III
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25 III
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#178124
I^ROPOSE&I JUDGMENT
1 Jucgment against Defendants MJW FILMS. LLC an Arizona limited liability company
2 and MICHAEL J. WITHERILL, in the total sum of $1,962,425,00, which sum is comprised
of
3 $1,960,000.00 left due and owing to Plaintiff MICHAEL SINGER, an individual, pursuant
to a
4 Stipulation for Judgment, plus attorneys' fees in the sum of $2,425.00.
7
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178124
JUDGMENT
Dsptiy
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{0099999.0012/00701096.DOCX / }
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SANFORD L. MICHELMAN (SBN 179702)
l
JEFFREY D. FARROW (SMN 180019)
FILED
STEVEN S. DAVIS (SBN 79019)
2
MICHELMAN & ROBINSON, LLP
DEC 2 7 2016
3 10880 Wilshire Boulevard, 19th Floor
Los Angeles, California 90024 SheniR. ive Officer/Clerk
4 Telephone: (310)564-2670 By. jDepity
Sfaun^Boldai
Facsimile: (310)564-2671
5
smichelman@mrllp.com
jfarrow@mrllp.com
ft,
6
sdavis@mrllp.com
i
7
Attorneys for Plaintiff, MICHAEL SINGER
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
11
14 v. 1. CREDITOR'S SUIT.
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o COMPLAINT o o o o o
2 1. At all times herein mentioned, Plaintiff MICHAEL SINGER ("Singer"! was and
4 2. At all times herein mentioned, Defendant MJW FILMS, LLC, an Arizona limited
5 liability company ("MJW Films"), was and is a limited liability company duly organized and
6 existing under the laws of the state of Arizona, and has been authorized to conduct, and is
9 individual ("Witherill") was and is an individual residing in the State of Arizona, and has been,
11 4. At all times herein mentioned, Defendant and Third Party FREEWAY CAM B.V.
12 ("Freeway Cam"), was and is a Netherlands company that conducts business within this judicial
16 company that conducts business within this judicial district, with its principle place of business
17 in Amsterdam, The Netherlands. Freeway Cam and Freeway Entertainment are sometimes
19 6. At all times herein mentioned, Defendant and Third Party TMF Group Services
20 B.V. ("TMF"). was and is a United Kingdom company that conducts business within this judicial
2] district, with its principle place of business in London, England. Singer is informed and believes,
22 and thereon alleges, that TMF is the majority owner of and controls Freeway CAM and Freeway
:^4 7. At all times herein mentioned, Defendant and Third Party J WICK
PRODUCTIONS, LLC ("J Wick"), was and is a Delaware limited liability company that
27
28
1
COMPLAINT
3 9. Singer has a money judgment against MJW Films and Witherill, joint and several,
4 dated November 7, 2014, in the principal sum of $1,962,425. ("Money Judgment"). The time
5 for enforcement of the Money Judgment has not expired. The balance due on the Money
6 Judgment exceeds $2,600,000, including interest at the legal rate since November 7, 2014. In
7 addition, Singer is entitled to attorneys' fees and costs expended to satisfy the Money Judgment.
8 MJW Films and Witherill are sometimes collectively referred to as "Judgment Debtors".
9 10. Third Parties have and had possession or control of property in which Judgment
10 Debtors have an interest, including rents, issues and profits which directly or indirectly belong
11 to the Judgment Debtors ("Funds"). Singer is informed and believes and on that basis alleges
12 that the Third Parties are indebted to the Judgment Debtors in excess of the value of the Funds.
13 11. The Third Parties conduct business in the County of Los Angeles, California, and
15 12. Service of the Summons and Complaint on the Third Parties creates a lien on
16 Judgment Debtors' interest in the Funds possessed or controlled by the Third Parties or on the
18 13. Singer is unaware of the true identity and capacity of each of the Defendants
19 named herein as DOES 1-50, inclusive. Singer will seek leave to amend this Complaint to state
20 the name and capacity of the DOE Defendants when ascertained. Singer is informed and believes
21 and thereon alleges that each of the DOE Defendants and Defendants was responsible for and
22 contributed to the acts hereinafter alleged and that Singer's damages were proximately caused
>v23 by the acts and omissions of the Doe Defendants and Defendants.
-j 24 14. Singer is informed and believes and on that basis alleges that, in engaging in the
"vl
op 25 acts hereinafter alleged, each of the Defendants was the agent, servant, and employee of each of
^'26 the other Defendants, and performed each of the acts hereinafter alleged within the course and
27
28
2
COMPLAINT
3 GENERAL ALLEGATIONS
4 15. Singer invested money with the Judgment Debtors for the purpose of being
5 involved in movie production. Singer ultimately took issue with Judgment Debtors' use of
6 production funds and he withdrew from their production arrangement and sought return of his
7 money. To this end, the parties stipulated to a Money Judgment in favor of Singer and against
8 the Judgment Debtors, jointly and severally, in the amount of $1 ,962,425. Singer has not been
10 16. Judgment Debtors produce and finance commercial motion pictures, typically
11 setting up distinct single purpose entities for each movie. The Judgment Debtors formed such a
12 single purpose entity - J Wick - for the purpose of producing a movie called John Wick. The
13 sole purpose of J Wick was the production, financing and participation in the profits of the John
14 Wick movie.
15 17. Singer is informed and believes and thereon alleges, that the movie John Wick
16 was released and theatrically distributed beginning in or about October 2014 both in the United
18 1 8. Singer is informed and believes and thereon alleges, that Freeway acts as a third-
19 party collection agent that collects and distributes to the Judgment Debtors, and others, proceeds
20 from the distribution and commercial exploitation of the John Wick movie, among other movies.
21 1 9. On or about December 1 1 , 201 5, Singer learned that Freeway held for the benefit
22 of MJW Funds in the amount of $1,165,777 and that Freeway held for the benefit of J. Wick
23 Funds in the amount of $293,742. Counsel for Judgment Debtors assured Singer, in writing, that
-4 24 the Funds would be held by Freeway and not dispersed to Judgment Debtors, or anyone else,
"-4
4? 25 without the consent of, among others, Singer.
""26 20. On or about December 14, 2015, Singer delivered to Defendants, including but
27 not limited to Third Parties, written demand that all sums held by Freeway for the benefit of
28
3
COMPLAINT
2 demanded that Defendants, including but not limited to the Third Parties, interplead all such
\
3 funds held by them or for the benefit of MJW, Witherill or J Wick to the Los Angeles Superior
4 Court in that certain action entitled Michael Singer v. Michael Witherill and MJW Films, LLC,
6 21. Despite the aforesaid written demand by Singer and written assurances by counsel
7 for Judgment Debtors, Singer is informed and believes, and thereon alleges, that Freeway, in or
8 about January 2016, disbursed all the Funds to or for the benefit of MJW, Witherill and J Wick.
9 Despite repeated demands, Defendants, including but not limited to the Third Parties, have
10 refused to pay the Funds, or any portion thereof, to Singer or, in the alternative, interplead such
11 Funds to the Los Angeles Superior Court. Further, Defendants knew but concealed from Singer
12 that the Funds would be disbursed to or for the benefit of MJW, Witherill and J Wick, despite
13 the written assurances by counsel for Judgment Debtors to the contrary. In addition, Defendants
14 concealed from Singer that the Funds had been disbursed in January 2016, which first became
16 22. Singer is informed and believes and thereon alleges, that there is such a unity of
17 interest and ownership between and among Defendants Witherill and MJW on the one hand, and
18 J Wick on the other hand, that Witherill and MJW are the equitable owners of J Wick, and the
19 separate personalities of Witherill and MJW on the one hand and J Wick on the other hand do
21 23. Singer is informed and believes and thereon alleges, that there would be an
22 inequitable result to the detriment of Singer unless the Court disregards any purported separate
i £23 existence of J Wick, on the one hand, apart from Witherill or MJW, on the other hand, such that
i
i -J
24 the Court can and should treat the acts, assets and property of J Wick as if they were committed
26
27
28
4
COMPLAINT
2 Creditor's Suit
(CCP § 708.210)
3
(Against All Defendants)
4
24. Singer refers to and incorporates herein by reference the allegations contained in
5
paragraphs 1 through 23, above, as if specifically set forth herein.
6
25. Singer is informed and believes and thereon alleges, the Third Parties have
7
possession or control of Funds in which the Judgment Debtors have an interest and which directly
8
or indirectly belong to the Judgment Debtors.
26. Singer is informed and believes and thereon alleges, that the Third Parties are
10
indebted to Judgment Debtors and that the Funds should be applied to Singer's Money Judgment
11
against Judgment Debtors until the Money Judgment is satisfied in full.
12
27. Service of summons on the Third Parties creates a lien on the interest of the
13
Judgment Debtors in the Funds or other property or on the debt owed by the Third Parties to the
14
Judgment Debtors that is the subject of this action
15
SECOND CAUSE OF ACTION
16
Accounting
17
(Against All Defendants)
18
28. Singer refers to and incorporates herein by reference the allegations contained in
19
paragraphs 1 through 27, above, as if specifically set forth herein.
20
29. An accounting is necessary to determine the amount of lost profits and other
21
damages Singer has suffered due to the Defendants' aforesaid wrongful conduct as described
22
above in paragraphs 19-23, and the accounts are so complicated that an ordinary legal action
23
'•Vv
28
5
COMPLAINT
2 CONSTRUCTIVE TRUST
4 31. Singer refers to and incorporates herein by reference the allegations contained in
6 32. By reason of the wrongful manner in which the aforesaid Defendants, or any of
7 them, obtained their alleged right, claim or interest in and to the Funds, the Defendants, and each
8 of them, have no legal or equitable right, claim or interest therein, but, instead, the aforesaid
9 Defendants, and each of them are involuntary trustees holding the Funds and profits therefrom
10 in constructive trust for Singer with the duty to convey the same to Singer forthwith.
12 CONVERSION
14 33. Singer refers to and incorporates herein by reference the allegations contained in
16 34. At all times herein mentioned, Singer was, and still is, entitled to the possession
17 of the Funds, and such monies are readily identifiable to the aforesaid Defendants through
18 tracing.
19 35. On or about December 14, 2015, the aforesaid Funds had a value of at least
20 $1,459,519.
21 36. In or about January 2016, Defendants took the aforesaid Funds belonging and
22 which should have been paid to Singer and converted the same to their own use.
^25 38. The acts of the aforesaid Defendants were willful and malicious in that their
:7> 26 conduct was intended to cause injury to Singer and was carried on with a conscious disregard for
27 Singer's rights, thereby warranting the assessment of exemplary and punitive damages pursuant
28
6
COMPLAINT
6 39. Singer refers to and incorporates herein by reference the allegations contained in
8 40. An actual controversy exists between the parties regarding the parties' rights and
9 obligations arising out of the Defendants' transactions with respect to the Funds: Specifically,
10 whether title to and/or possession of the Funds should be adjudicated in Singer's or Defendants'
11 favor.
13 possession of the Funds, including all readily identifiable and traceable cash, proceeds, personal
14 property and real property. Singer is informed and believes, and on the basis of that information
15 and belief alleges, that unless restrained by this Court, Defendants will continue to deprive Singer
17 42. Such aforesaid wrongful conduct by Defendants will result in irreparable harm to
18 Singer in that if left unrestrained, it will result in loss of assets belonging to Singer. The potential
19 damages that could proximately result from Defendants' continued aforesaid wrongful conduct
•V JC
(Against All Defendants)
XT)
26 44. Singer refers to and incorporates herein by reference the allegations contained in
28
7
COMPLAINT
2 concealed material facts from Singer as set forth above in paragraphs 19-23, which each of
4 46. The aforesaid Defendants concealed material facts from Singer by failing to
5 disclose the substance and nature of the aforesaid transactions knowing that Singer was a creditor
6 of the Judgment Debtors and that the Third Parties had in their possession moneys that properly
8 47. The aforesaid Defendants had a duty to make full disclosures to Singer of the
9 concealed information, and the concealment of material facts was made by the aforesaid
10 Defendants with the intent to defraud and deceive Singer and with the intent to induce Singer to
12 48. At and during the time the aforesaid Defendants concealed the aforesaid material
13 facts from Singer, Defendants had no intention of divulging the material facts which each had a
14 duty to disclose.
15 49. Singer, at the time the aforesaid concealment of material facts was made and at
16 the time Defendants took the actions herein alleged, was unaware of the material facts concealed
17 by the aforesaid Defendants and was ignorant of Defendants' secret intention not to divulge the
18 material facts. Singer could not, in the exercise of reasonable diligence, have discovered the
19 aforesaid Defendants' secret intentions and concealment of the aforesaid material facts.
20 50. At all relevant times Singer was unaware of the aforesaid material facts, and was
21 induced to and did, inter alia, act in the manner alleged to his substantial detriment and damage.
22 51 . Had Singer known the actual facts and true intentions concealed by Defendants,
^23 Singer would not have acted as he did and would not have been damaged as alleged herein.
::U4 52. Singer's reliance on Defendants' concealment of material facts was justified
25 because the Defendants had exclusive knowledge of the truth, which was unavailable at the time
""26 to Singer because Defendants were in the sole custody, control and/or possession of their secret
27 intentions.
28
8
COMPLAINT
2 concealment and omission of material facts, Singer has suffered and continues to suffer
3 substantial damages in excess of $1 ,459,5 19, the exact amount to be ascertained at trial according
4 to proof.
5 54. The acts of Defendants were willful and malicious in that their conduct was
6 intended to cause injury to Singer and was carried on with a conscious disregard for Singer's
7 rights, thereby warranting the assessment of exemplary and punitive damages pursuant to Cal.
8 Civ. Code§ 3294 against each of the aforesaid Defendants, jointly and severally, in an amount
14 55. Singer refers to and incorporates herein by reference the allegations contained in
16 56. This Cause of Action arises under and is alleged pursuant to Civil Code §§ 3439,
17 et seq.
18 57. Defendants, and each of them, conspired with one another to transfer the Funds
19 as alleged herein for the purpose of hindering, delaying, and/or defrauding Singer. Defendants,
20 and each of them, were aware that the foregoing conduct was and continues to be fraudulent.
22 Defendants made the transfer (or incurred the obligation) with actual intent to hinder, delay,
"V.J
24 59. The transfer of the Funds as alleged herein was made without receiving a
3 *"J
25 reasonably equivalent value in exchange for the transfer, leaving the Judgment Debtors with
:7> 26 remaining assets that are unreasonably small in relation to the business of the Judgment Debtors.
27
28
9
COMPLAINT
2 S inger has suffered and continues to suffer substantial damages in excess of $ 1 ,45 9,5 1 9, the exact
4 61 . Singer is entitled to avoidance of the aforesaid transfer of the Funds to the extent
5 necessary to satisfy his Money Judgment against the Judgment Debtors, jointly and severally,
6 and equitable relief in the form of an injunction against further transfer of the Funds, and/or
7 appointment of a Receiver.
8 62. Singer is informed and believes and thereon alleges that in doing the things
9 alleged herein, Defendants, and each of them, acted fraudulently, oppressively, maliciously, and
10 in conscious disregard of the rights of Singer. Therefore, Singer is entitled to recover punitive
11 and/or exemplary damages from Defendants in an amount to be established at the time of trial.
13 UNJUST ENRICHMENT
14 (Against AH Defendants)
15 63. Singer refers to and incorporates herein by reference the allegations contained in
i 17 64. Defendants received money (or property acquired through the proceeds of the
19 65. The Funds were not used for the benefit of Singer.
20 66. Despite repeated demands, Defendants have not provided the Funds to Singer.
21 67. As a result of the wrongful conduct of Defendants as alleged herein, Singer has
-o
23 $1,459,519.
-'24
-•<>25
sp
••^26
27
28
10
COMPLAINT
2
WHEREFORE, Plaintiff Michael Singer prays for Judgment against Defendants, jointly
3
and severally, as follows:
4
On the First Cause of Action for Creditor's Suit
5
1. That the Funds be applied to Singer's Money Judgment against Judgment Debtors
6
until satisfied in full.
7
2. That Defendants not transfer the Funds or any other debt owed to Judgment
8
Debtors.
9
3. Judgment for possession of the Funds in favor of Singer.
11 1. For an accounting of the Funds and any other monies or profits owed to Judgment
12 Debtors.
14 1. For imposition of a Constructive Trust over the Funds for the benefit of Singer.
15 On the Fourth Cause of Action for Conversion and Sixth Cause of Action for Fraud
and Deceit
16
I
17 1. For damages in an amount to be determined according to proof at trial in excess
18 of $1,459,519.
19 2. For exemplary damages as provided under section 3294 of the California Civil Code.
20
On the Fifth Cause of Action for Declaratory and Injunctive Relief and Seventh
Cause of Action to Set Aside Fraudulent Transfer
21
22
1. For a judicial declaration:
23
a. That Singer is entitled to an Order granting execution on the Funds and other
•-vj
24 monies or profits belonging to Judgment Debtors until Singer's Money
•"•V
q?
25 Judgment is satisfied.
:T" 26 b. Voiding the fraudulent transfer of the Funds to the extent necessary for Singer
28
11
COMPLAINT
2 remedies as a creditor.
3 2. Alternatively, that Singer as Judgment Creditor recover Judgment for the value of the
Funds transferred, against the transferee or any other later transferee who took from
4
the transferee, except for a good-faith transferee as adjusted for the value of the Funds
5
when transferred.
6
3. An order attaching the Funds.
7
4. An order enjoining further transfer of the Funds and other monies or profits belonging
i 8
to Judgment Debtors until Singer's Money Judgment is satisfied.
9
5. Appointment of a Receiver to take charge of the Funds and other monies or profits
10
belonging to Judgment Debtors until Singer's Money Judgment is satisfied.
11
6. Any other relief the circumstances may require.
12
On the Eighth Cause of Action for Unjust Enrichment
13
1. For damages in an amount to be determined according to proof at trial in excess of
14
$1,459,519.
15
On All Causes of Action
16
1. For costs of suit, including attorney fees.
17 2. For such other and further relief as the Court deems just and proper.
18
19
22
-23
jkvktJ
By:.
-24 Sanford L. Michelman
-,>J
Jeffrey D. Farrow
'•-25 Steven S. Davis
Attorneys for Plaintiff and Judgment Creditor,
'26 Michael Singer
27
28
12
COMPLAINT
3. Remedies sought (check all that apply): a.l I monetary b. I I nonmonetary; declaratory or injunctive relief c. I / I punitive
4. Number of causes of action (specify): Eight - see attachment
5. -This case I I is I / I is not a class action suit.
6. :;;;if there are any known related cases, file and serve a notice of related case. PCou may use form CM-015.) <.
Datp: December 27, 2016
Steven S. Davis
(TYPE OR PRINT NAME) (SIGNATURE OF PARTY PR ATTORNEYTOR PARTY)
I Z NOTICE
.„ •j-piaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed
c •—L. under the Probate Code. Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result
~—3» in sanctions.
— • File this cover sheet in addition to any cover sheet required by local court rule.
• If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all
( Q other parties to the action or proceeding.
• Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.
'age 1 of 2
flC=5SSS=
Desc
Main Document Page 54 of 63
CM-010
INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET
To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) In a civil case, you must
complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1 . This information will be used to compile
statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1 , you must check
one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1 ,
check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action.
To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover
sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party,
its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.
To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money
owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in
which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort
damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of
attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general
time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections
case will be subject to the requirements for service and obtaining a judgment in rule 3.740.
To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the
case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by
completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the
complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the
plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that
the case is complex. CASE TYPES AND EXAMPLES
Contract Provisionally Complex Civil Litigation (Cal.
Auto Tort
Breach of Contract/Warranty (06) Rules of Court Rules 3.400-3.403)
Auto (22)-Personal Injury/Property
Breach of Rental/Lease Antitrust/Trade Regulation (03)
Damage/Wrongful Death
Contract (not unlawful detainer Construction Defect (10)
Uninsured Motorist (46) (If the
or wrongful eviction) Claims Involving Mass Tort (40)
case involves an uninsured
Contract/Warranty Breach-Seller Securities Litigation (28)
motorist claim subject to
Plaintiff (not fraud or negligence) Environmental/Toxic Tort (30)
arbitration, check this item
Negligent Breach of Contract/ Insurance Coverage Claims
instead of Auto)
Warranty (arising from provisionally complex
Other PI/PD/WD (Personal Injury/
Other Breach of Contract/Warranty case type listed above) (41)
Property Damage/Wrongful Death)
Collections (e.g., money owed, open Enforcement of Judgment
Tort
book accounts) (09) Enforcement of Judgment (20)
Asbestos (04)
Collection Case-Seller Plaintiff Abstract of Judgment (Out of
Asbestos Property Damage County)
Asbestos Personal Injury/ Other Promissory Note/Collections
Case Confession of Judgment (non-
Wrongful Death
insurance Coverage (not provisionally domestic relations)
Product Liability (not asbestos or
complex) (18) Sister State Judgment
toxic/environmental) (24)
Auto Subrogation Administrative Agency Award
Medical Malpractice (45)
Other Coverage (not unpaid taxes)
Medical Malpractice-
Petition/Certification of Entry of
Physicians & Surgeons Other Contract (37)
Judgment on Unpaid Taxes
Other Professional Health Care Contractual Fraud
Other Enforcement of Judgment
Malpractice Other Contract Dispute Case
Other PI/PD/WD (23) Real Property
Miscellaneous Civil Complaint
Premises Liability (e.g., slip Eminent Domain/Inverse
Condemnation (14)
RICO (27)
and fall)
Other Complaint (not specified
Intentional Bodily Injury/PD/WD Wrongful Eviction (33)
above) (42)
(e.g., assault, vandalism) Other Real Property (e.g., quiet title) (26)
Declaratory Relief Only
Intentional Infliction of Writ of Possession of Real Property Injunctive Relief Only (non-
Emotional Distress Mortgage Foreclosure harassment)
Negligent Infliction of Quiet Title Mechanics Lien
Emotional Distress Other Real Property (not eminent
Other Commercial Complaint
Other PI/PD/WD domain, landlord/tenant, or
Case (non-tort/non-complex)
Non-PI/PD/WD (Other) Tort foreclosure)
Other Civil Complaint
Business Tort/Unfair Business Unlawful Detainer (non-tort/non-complex)
Practioe (07) Commercial (31)
Miscellaneous Civil Petition
Civil Rights (e.g., discrimination, Residential (32) Partnership and Corporate
false arrest) (not civil Drugs (38) (if the case involves illegal Governance (21)
-.j harassment) (08) drugs, check this item; otherwise, Other Petition (not specified
..Defamation (e.g., slander, libel) report as Commercial or Residential) above) (43)
o (13) Judicial Review Civil Harassment
--Fraud (16) Asset Forfeiture (05) Workplace Violence
"-Intellectual Property (19) Petition Re: Arbitration Award (11) Elder/Dependent Adult
^'Professional Negligence (25) Writ of Mandate (02) Abuse
Legal Malpractice Writ-Administrative Mandamus Election Contest
Other Professional Malpractice Writ-Mandamus on Limited Court Petition for Name Change
(not medical or legal) Case Matter Petition for Relief From Late
Other Non-PI/PD/WD Tort (35) Writ-Other Limited Court Case Claim
Employment Review Other Civil Petition
Wrongful Termination (36) Other Judicial Review (39)
Other Employment (15) Review of Health Officer Order
Notice of Appeal-Labor
Commissioner Appeals
Page 2 of 2
CNW10 [Rev. July 1, 2007)
CIVIL CASE COVER SHEET
3 (2) Accounting
5 (4) Conversion
10
11
12
13
14
15
16
17
18
19
20
21
22
2i£
24
I ~-r'
2|
:.7
26 (Required for verified pleading) The items on this page stated on information and belief are (specify item numbers, not line
numbers):
27
This page may be used with any Judicial Council form or any other paper filed with the court. Page 3.
This form is required pursuant to Local Rule 2.3 in all new civil case filings in the Los Angeles Superior Court.
Step 1 : After completing the Civil Case Cover Sheet (Judicial Council form CM-010), find the exact case type in
Column A that corresponds to the case type indicated in the Civil Case Cover Sheet.
Step 2: In Column B, check the box for the type of action that best describes the nature of the case.
Step 3: In Column C, circle the number which explains the reason for the court filing location you have
chosen.
Fax
Applicable Reasons for Choosing Court Filing Location (Column C)
1. Class actions must be filed in the Stanley Mosk Courthouse, Central District. 7. Location where petitioner resides.
3. Location where cause of action arose. 9. Location where one or more of the parties reside.
4. Mandatory personal injury filing in North District. 10. Location of Labor Commissioner Office.
11. Mandatory filing location (Hub Cases - unlawful detainer, limited
5. Location where performance required or defendant resides.
non-collection, limited collection, or personal injury).
A B c
Civil Case Cover Sheet Type of Action Applicable Reasons -
Category No. (Check only one) See Step 3 Above
Auto (22) A71 00 Motor Vehicle - Personal Injury/Property Damage/Wrongful Death 1,4, 11
3 -c
3 o
< Uninsured Motorist (46) A7110 Personal Injury/Property Damage/Wrongful Death -Uninsured Motorist 1,4.11
i
§L °
Product Liability (24) A7260 Product Liability (not asbestos or toxic/environmental) 1, 4, 11
2 £
cl <e
o
£> Q A7210 Medical Malpractice - Physicians & Surgeons 1,4, 11
,
1L-2
-=~cn
Medical Malpractice (45)
1,4,11
A7240 Other Professional Health Care Malpractice
I
LACIV 109 (Rev 2/16) CIVIL CASE COVER SHEET ADDENDUM Local Rule 2.3
LASC Approved 034)4 AND STATEMENT OF LOCATION Page 1 of 4
Case 2:18-ap-00528-SHG Doc 1 Filed 12/10/18 Entered 12/10/18 10:32:40 Desc
Main Document Page 57 of 63
V
A B C Applicable
Civil Case Cover Sheet Type of Action Reasons - See Step 3
Category No, (Check only one) Above
Business Tort (07) A6029 Other Commercial/Business Tort (not fraud/breach of contract) 1.2,3
8 -
0. § Defamation (13) A6010 Defamation (slander/libel) 1,2,3
2. .2
c en
Fraud (16) A6013 Fraud (no contract) 1,2,3
ra |
§ S A6017 Legal Malpractice 1.2,3
I*
c 1
Professional Negligence (25)
A6050 Other Professional Malpractice (not medical or legal) 1,2,3
O A
Z Q
Other (35) A6025 Other Non-Personal Injury/Property Damage tort 1,2,3
E
>«
A6024 Other Employment Complaint Case 1,2,3
°
Q. Other Employment (1 5)
E A6109 Labor Commissioner Appeals 10
ui
Eminent Domain/Inverse
A7300 Eminent Domain/Condemnation Number of parcels. 2,6
Condemnation (14)
£
OJ
a.
Wrongful Eviction (33) A6023 Wrongful Eviction Case 2,6
o
CL
A A6018 Mortgage Foreclosure 2,6
at
„JB£ Other Real Property (26) A6032 Quiet Title 2,6
'-•V O A6060 Other Real Property (not eminent domain, landlord/tenant, foreclosure) 2,6
Unlawful Detainer-Commercial
A6021 Unlawful Detainer-Commercial (not drugs or wrongful eviction) 6,11
-Q) (31)
-jg Unlawful Detainer-Residential
JS A6020 Unlawful Detainer-Residential (not drugs or wrongful eviction) 6,11
q3 1321
3 Unlawful Detainer-
A6020F Unlawful Detainer-Post-Foreclosure 2, 6,11
% Post-Foreclosure (34)
JS
c
Z3 Unlawful Detainer-Drugs (38) A6022 Unlawful Detainer-Drugs 2,6,11
LACIV 1 09 (Rev 2/16) CIVIL CASE COVER SHEET ADDENDUM Local Rule 2.3
LASC Approved 03-04 AND STATEMENT OF LOCATION Page 2 of 4
Case 2:18-ap-00528-SHG Doc 1 Filed 12/10/18 Entered 12/10/18 10:32:40 Desc
Main Document Page 58 of 63
SHORT TITLE: CASE NUMBER
Michael Singer v. Michael J. Witherill, et al.
A B C Applicable
Civil Case Cover Sheet Type of Action Reasons - See Step 3
Category No. (Check only one) Above
Other Judicial Review (39) A6150 Other Writ /Judicial Review 2,8
I*
2
0
O A6030 Declaratory Relief Only 1,2,8
c £
A6040 Injunctive Relief Only (not domestic/harassment) 2,8
- £ Other Complaints
S o (Not Specified Above) (42)
% A601 1 Other Commercial Complaint Case (non-tort/non-complex) 1,2,8
Partnership Corporation
A6113 Partnership and Corporate Governance Case 2,8
Governance (21)
LACIV 109 (Rev 2(16) CIVIL CASE COVER SHEET ADDENDUM Local Rule 2.3
Step 4: Statement of Reason and Address: Check the appropriate boxes for the numbers shown under Column C for the
type of action that you have selected. Enter the address which is the basis for the filing location, including zip code.
(No address required for class action cases).
ADDRESS:
Chatsworth CA 91331
Step 5: Certification of Assignment: I certify that this case is properly filed in the Central District of
the Superior Court of California, County of Los Angeles [Code Civ. Proc., §392 et seq., and Local Rule 2.3(a)(1)(E)].
PLEASE HAVE THE FOLLOWING ITEMS COMPLETED AND READY TO BE FILED IN ORDER TO PROPERLY
COMMENCE YOUR NEW COURT CASE:
4. Civil Case Cover Sheet Addendum and Statement of Location form, LACIV 109, LASC Approved 03-04 (Rev.
02/16).
5. Payment in full of the filing fee, unless there is court order for waiver, partial or scheduled payments.
6. A signed order appointing the Guardian ad Litem, Judicial Council form CIV-010, if the plaintiff or petitioner is a
minor under 18 years of age will be required by Court in order to issue a summons.
7. Additional copies of documents to be conformed by the Clerk. Copies of the cover sheet and this addendum
must be served along with the summons and complaint, or other initiating pleading in the case.
O
"-f
--vj
"•V
LACIV 109 (Rev 2/16) CIVIL CASE COVER SHEET ADDENDUM Local Rule 2.3
LASC Approved 03-04 AND STATEMENT OF LOCATION Page 4 of 4
Case 2:18-ap-00528-SHG Doc 1 Filed 12/10/18 Entered 12/10/18 10:32:40 Desc
Main Document Page 60 of 63
EXHIBIT “E”
{0099999.0012/00701096.DOCX / }
Case 2:18-ap-00528-SHG Doc 1 Filed 12/10/18 Entered 12/10/18 10:32:40 Desc
Main Document Page 61 of 63
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 42
APPEARANCES:
For Plaintiff(s): Jeffrey Dean Farrow by Steven S. Davis, Esq. (x)
For Defendant(s): Arash Beral by Jeffrey S. Goodfriend, Esq. (x)
NATURE OF PROCEEDINGS:
Ex parte application is denied. Moving party fails to show good cause for exercise of the court’s
ex parte jurisdiction. There is no showing of irreparable harm or immediate danger in the
absence of ex parte relief. CRC 3.1202(c). Moving party has also failed to provide good cause
for the relief sought.
The ex parte application of non-parties Weisenburger for leave to intervene is denied, without
prejudice. In addition, there is opposition to the proposed intervention. This is not a matter for an
ex parte. No good cause has been presented as to why there is any basis to intervene. In addition,
no good cause has been presented why this application was not filed sooner. Likewise, these new
non-parties apparently have no interest in the dispute at issue in this lawsuit. This court is not a
bankruptcy court.
Defendant seeks by ex parte an earlier hearing date, but the court does not have available an
earlier date. The court’s hearing schedule is extremely congested, due to the closing of
courtrooms and redistribution of additional cases to this court. The parties are ordered to use the
CRS reservation system to find the earliest date available for a noticed motion hearing.