Newman v. Tolliver - Ives the Band complaint.pdf

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DAVID Z. RIBAKOFF (SBN 162925)Email: dribakojJ@enensteinlaw. comCOURTNEY M. HAVENS (SBN 301116)Email: [email protected] RIBAKOFF LAVINA & PHAM

12121 Wilshire Boulevard, Suite 600Los Angeles, CA 90025Phone:(310)899-2070Fax: (310)496-1930Attorneys for PlaintiffDrew Newman

Superior Court of CaliforniaCounty of Los Angeles

SEP 03 2015

r,Executive Officer/Clerk

^^ ,»., DeputyJudi Lara

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

DREW NEWMAN, an individual,

Plaintiff,v.

JASON TOLLIVER, an individual; andDOES 1 through 20 inclusive,

Defendants.

CASE NO.

COMPLAINT FOR:

1. BREACH OF PARTNERSHIP

AGREEMENT

2. BREACH OF THE IMPLIED

COVENANT OF GOOD FAITH AND

FAIR DEALING

3. PARTNERSHIP DISSOLUTION

4. ACCOUNTING

5. BREACH OF FIDUCIARY DUTY

6. DECLARATORY RELIEF

DEMAND FOR JURY TRIAL

COMPLAINT

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Plaintiff Drew Newman, an individual, ("Plaintiff) hereby complains and alleges as

follows:

PARTIES

1. Plaintiff is informed and believes, and thereon alleges that Defendant Jason

Tolliver ("Tolliver") is an individual, and at all times herein mentioned was a resident of Los

Angeles County, California.

2. The true namesand capacities of Defendants sued hereinas DOES 1 through 20,

inclusive, are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.

Plaintiffwill amend this Complaint whentheir true names and capacities are ascertained. Plaintiff

is informed and believes and thereon alleges that each of the fictitiously-named Defendants is

responsible in some manner for theoccurrences herein alleged, and is liable on theclaims

hereinafter set forth.

3. Defendants and each of them, including DOES 1 through 20, are collectively

referred to herein as "Defendants." References hereafter made to any one Defendant shall be

deemed to refer to and include each of the other Defendants, as well as the fictitiously-named

Defendants sued as DOES I through 20, unless the context indicates otherwise.

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

4. Plaintiff, Tolliver, and Grayson Kessenich("Kessenich") formed Ives the Band

(the "Band") in 2005. The Band has described itself as an "adventure rock" band and was

inspired by California's beach culture.

5. Tolliver was the lead singer for the Band.

6. On or about June 2007, Plaintiff, Tolliver, and Kessenich signed a handwritten

partnership agreement to govern the Band. At that time, there were six members of the band, but

three signatories of the partnership agreement.

7. The partnership agreement resulted in Plaintiff, Tolliver, and Kessenich being able

to open a checking account at Bankof America. This account was used to writechecks for the

partnership.

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1COMPLAINT

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8. From 2007 onward, all business was conducted under the name of the Band,

"IVES" and Plaintiff and Tolliveragreed that everything created by the Band belonged to the

Band. While tliere was no written agreement, Plaintiffand Tolliver both understood that the Band

wasa common cause, and that they were acting in goodfaith. Plaintiffand Tolliver both referred

to the Band as a partnership.

9. Members in the Band who were not partners of the Band were described as

contractors of the Band. Royalties were split equally between members in the Band, including

members who were contractors of the Band.

10. Checks were made to the Band in the name of the Band, "Ives," and expenses

were incurred under the name of the Band and paid from the Band's checking account.

11. As of approximately 2008, Kessenich left the Band, and has not been an active

member of the Band since. Kessinich is no longer a partner in the Band.

12. In 2008, Plaintiff created a Facebook page for the Band. Bryce Newman managed

the Band's Facebook page.

13. In 2009, the members of the Band at the time released an album titled "The

Incredible Story of Mr. Birch."

14. As of 2010, the members of the Band were Plaintiff, Tolliver, Bryce Newman, and

Kyle Moore.

15. As of 2010, Plaintiff and Tolliver were the only members of the partnership. Bryce

Newman and Kyle Moore were both contractors.

16. As of 2010, Plaintiff and Tolliver were the only persons with their names on the

Band's checking account.

17. In 2010, Bryce Newman created a Twitter account for the Band. Since 2010,

Bryce Newman has managed the Twitter account for the Band.

18. From 2010 through 2012, the Band was managed by Todd Bradley ("Bradley").

Bradley's contract was with the Band. Plaintiff negotiated the contract with Bradley for the Band.

19. As of 2013, Plaintiff and Tolliver were the only persons on the checking account.

Plaintiff and Tolliver were the only members of the partnership.

2COMPLAINT

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20. In the Fall of 2013, the Band began recording an album (the"Album"). This

Album used songs the Band members had been working on since 2013. TheBand members at

this time were Plaintiff, Tolliver, Bryce Newman, and Kyle Moore.

21. The Album is at yet unreleased and is titled"The Fighters (a.k.a. Rio Grande)."

22. The Album was produced by Ken Riley ("Riley").

23. The Band had an agreement with Riley in order to get the Album recorded. In

exchange for the value of the recording time, the Band would perform shows anddo a radio

interview.

24. The agreement between the Band and Riley was an oral agreement.

25. If the Band cannot perform the shows in the oral agreement, Plaintiff is informed

and believes that the partnership is potentially exposed toclaims for the costof the recording time

as a partnership expense.

26. As the Band cannot perform the shows, the Partnership is potentially exposed to

claims as a result of its breach of contract.

27. On March 3, 2014, the Band signed a "Work-For-Hire Agreement" with Bob Rosa

for "professional engineering (mixing) services." This contract was made between Bob Rosa for

Bob Rosa Productions, Inc. and IVES.

28. The March 3, 2014 "Work-For-Hire Agreement" acknowledged that the Band "is

and shall be deemed the author and/or exclusive owner" of the Masters.

29. In May 2014, Kyle Moore exited from the band.

30. In May 21, 2014, the Band sent an email to Kyle Moore regarding his exit from

the band. That email was sent from the email address [email protected] and was signed by

Bryce Newman, Plaintiff, and Tolliver. In that email, under the heading of "Song Rights" the

band members stated "The partners of Ives did indeed agree at the beginning of the writing

process of Rio Grande to grant an equal split of the remainingcredit (left after any additional

writers) between the active participantsof the band at that point. In addition, the partnersof Ives

also awarded you the same benefits to the songs appearing on The Incredible Story of Mr Birch

after the album was completed. All songs on both of these albums have already been registeredat

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the pertinent performing rights organizations with the appropriate writers and publishers

percentages."

31. • On May 30, 2014, Kyle Moore signed a Separation Agreement sent to him by

Plaintiff and Tolliver. This agreement laid out the terms of Kyle Moore's separation from the

Band and was entered into "by between Kyle Moore ("Contractor") and Ives The Band

("Partnership") as owned by Drew Newman and Jason Tolliver." Page 4 of the Separation

Agreement identified the BMI Percentages for the songs on both "Rio Grande" and "The

Incredible Story of Mr. Birch."

32. In 2014, the Band renovated its website. The Band moved the website to a new

hosting platform, Squarespace. Plaintiff put the website together for the Band. Plaintiff arranged

for a photographer to take pictures of the Band for the website.

33. The Band's "one sheet" from 2014 indicates that the Band "is currently

independently operated." The contact for the band is listed as Plaintiff. The Band's website is

listed as www.ivestheband.com.

34. On or about December 9, 2014, Tolliver dissociated from the Band.

35. Tolliver has not performed any obligations of the Band since his dissociation in

December 2014.

36. In December 2014, when Tolliver dissociated from the Band, he left a variety of

equipment belonging to the Band in the trailer the Band used. That trailer belonged to Plaintiff

and was at Plaintiffs home.

37. Between December 2014, and March 18, 2015, Tolliver did not communicate with

Plaintiff.

38. On March 18, 2015, Tolliver's counsel sent a letter to Plaintiff claiming the

equipment left in the trailer was his personal property and demanding its return.

39. Given Tolliver's position as the lead singer of the Band, the Band is currently

unable to perform its obligations under the oral agreement with Riley. As a direct result of

Tolliver's dissociation from the Band, the partnership is potentially exposed to claims for the cost

of recording fees.

4COMPLAINT

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40. The Band owes Plaintiffs wife, Sarah Newman, approximately $7,649.28 for

expenses.

41. The Band owes Plaintiff at least $2,000 for expenses. Plaintiff incurred these

expenses to further the Band.

42. Thepartnership assets consist of a number of physical items such as microphones,

microphone input modules, boom stands, cables, cases, headphones, and other items used for the

Band. The partnership assets also include compact disks of the Band's albums, mugs, t-shirts,

and hats.

43. The partnership assets include intellectual property rights, including but not

limited to the rights to thealbums released bythe Band, The Incredible Story of Mr. Birch and

The Fighters (a.k.a. Rio Grande) (collectively, "Intellectual Property").

44. On July 20, 2015,Tolliver's counsel sentPlaintiffa letter informing himthaton

May 18,2015, Tolliver officially withdrew from the partnership.

45. The July 20, 2015 letter also claimed that Tolliver "ownsan exclusive right" in

the partnership's intellectual property assets. According to Tolliver, these rights include: "the

released album, entitled 'The Incredible Storyof Mr. Birch' and the unreleased album, entitled

'The Fighters (a.k.a. Rio Grande)' [...]; the songs; mixtapes; singles; musical compositions; key

arts; name; trade name and trademark of the band; and all other forms of branding contained

therein; social mediapagesand handles and theircontent (including but not limited to twitter,

Facebook, Instagram, MySpace, etc.); websites, URL, domain nameand other intellectual

property assets." Tolliver claims thisexclusive right "pursuant to 17 U.S. Code Section 106 (the

'Copyright Act') and other intellectual property statutes."

46. The July 20, 2015 letter also claimed Tolliver has a right in the name of the band

"Ives" and that use of the name of the band, "Ives" would constitute infringement ofTolliver's

trademark.

47. The July 20,2015 letter also claimed that use of Tolliver's name, voice, signature,

photographand likeness violated Section 3344 of the California Civil Code.

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__JCOMPLAINT

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FIRST CAUSE OF ACTION

(Breach of Partnership Agreement)

48. Plaintiff incorporates Paragraphs 1through 47 into this cause of action as if fully

set forth and realleged herein.

49. In 2007, Plaintiffand Tolliver had a written agreement that theywere partners in

the Band. Plaintiffand Tolliver also hadoral agreements which comprised the partnership

agreement. As part of the partnership agreement, Plaintiff and Tolliver agreed to carry on asco-

owners of the Band for profit. Both Plaintiff and Tolliver were expected to contribute their

money, skills, efforts, and labor to the Band.

50. Tolliver's dissociation from the Band and withdrawal from the partnership

breached the agreement to carry on the Band as a business forprofit.

51. Plaintiff was damaged byTolliver's breach of the partnership agreement. Plaintiff

was damaged by Tolliver's breach because the partnership ispotentially exposed toclaims for the

cost of recording fees. Plaintiff has also been damaged because he cannot realize the

opportunities inherent in continuing the partnership.

SECOND CAUSE OF ACTION

(Breach of Implied Covenant of Good Faith and Fair Dealing)

52. Plaintiffincorporates Paragraphs 1 through 51 into thiscause of action as if fully


53. Plaintiff and Tolliver entered into a contract, namely the partnership agreement.

This contract was both written and oral.

54. Plaintiffdid all of the significant things that the contract required him to do. He

performed all the duties of the partnership agreement.

55. Tolliver's actions in dissociating from the Band have unfairly interfered with

Plaintiffs right to receive the benefits of the contract.

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COMPLAINT

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56. Plaintiff was damaged by Tolliver's conduct. Plaintiff was damaged by Tolliver's

breach because the partnership is potentially exposed to claims for the cost of recording fees.

Plaintiff has also been damaged because he cannot realize the opportunities inherent in continuing

the partnership.

THIRD CAUSE OF ACTION

(Dissolution of Partnership)

57. Plaintiff incorporates Paragraphs 1 through 56 into this cause of action as if fully


58. Plaintiff and Tolliver have formed a partnership to carry on as co-owners of the

Band for profit.

59. Tolliver's dissociation from the Band and withdrawal from the partnership

unreasonably frustrates the economic purpose of the partnership,

60. Tolliver's actions in dissociating from the Band have made it not reasonably

practicable to carry on the business of the Band in partnership with Plaintiff.

61. Under the provisions of California Corporate Code section 16801(5)(A) and (B),

Plaintiff is entitled to a dissolution by court decree.

FOURTH CAUSE OF ACTION

(Accounting)



63. Plaintiff demands an accounting from Tolliver as provided for in California

Corporate Code section 16404(b)(1).

FIFTH CAUSE OF ACTION

(Breach of Fiduciary Duty)

64. Plaintiff incorporates Paragraphs 1 through 63 into this cause ofaction as if fully


65. As a partner, Tolliver owed a fiduciary duty of loyalty and care to his partner

partnership.

7COMPLAINT

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66. Tolliver breached his duty of loyalty and care by knowingly acting against the

Band's interests. He dissociated from the Band, knowing that without him the Band, and thus the

partnership, could not fulfill its contractual duties with Riley.

67. As a direct result, the partnership is potentially exposed to claims for the cost of

recording fees.

6Z. Plaintiff has been harmed by Tolliver's conduct as a partner in the partnership.

SIXTH CAUSE OF ACTION

(Declaratory Relief)



70. An actual controversy has arisen and now exists between Plaintiff and Tolliver

concerning their respective rights to the Intellectual Property of the band, as well as the use of the

nameof the Band "Ives" and the right to control of the use of Tolliver's "name, voice, signature

photograph and likeness ... including without limitation those contained in the Album and the

Intellectual Property Assets."

71. Plaintiff contends that the Intellectual Property created by the Band belongs to the

partnership.

72. Plaintiff contendsthat the Intellectual Property belonging to the Band includes but

are not limited to: thealbum "The Incredible Story of Mr. Birch"; thealbum "The Fighters (a.k.a.

Rio Grande); any andall songs created by theBand; any and all mixtapes created by the Band; any

and all singles created by the Band; any and all musical compositions created by the Band; key

arts; the name of the Band "Ives"; trade name and trademark of the Band "Ives"; and all other

forms of branding contained therein; social media pages and handles and theircontent created by

the Band; the Band's website ivestheband.com. includingthe URL, domain name, and all content

created by the band therein.

73. Plaintiff contends that, insofar as Tolliver's "name, voice, signature photograph and

likeness" is contained in the Intellectual Property belonging to the partnership, thepartnership has

a right to use it.

8COMPLAINT

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74. Tolliver contends that use of the Intellectual Property by the Band infringes on his

copyright. Tolliver's counsel sent a letter on July 20, 2015 claiming that he has an "exclusive

right" in the intellectual property assets of the band.

75. Tolliver's counsel sent a letter on July 20, 2015 claiming that use of the name of

the Band "Ives" is an infringementon his trademark. The letter also claims that this is unfair

competition and false advertising.

76. Tolliver contends that the right to control of the use of Tolliver's "name, voice,

signature photographand likeness ... including without limitation those contained in the Album

and the Intellectual Property Assets," is a statutory violation,

77. A judicial declaration is therefore necessary and appropriate at this time under the

circumstances so that the parties may ascertain their respective rights to the Intellectual Property,

includinguse of the name of the Band "Ives," and the right to the use ofTolliver's "name, voice,

signature photograph and likeness" insofar as it is contained in the Intellectual Property.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment as follows:

1. FIRST CAUSE OF ACTION FOR BREACH OF PARTNERSHIP AGREEMENT

A. For general damages according to proof;

B. For costs of suit herein incurred; and

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

2. SECOND CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT

OF GOOD FAITH AND FAIR DEALING




3. THIRD CAUSE OF ACTION FOR DISSOLUTION OF PARTNERSHIP

A. For a Court Order dissolving the partnership;


COMPLAINT

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4. FOURTH CAUSE OF ACTION FOR ACCOUNTING

A. For accounting of partnership affairs from 2007 to the present, that the account be

settled between Plaintiff and Tolliver, and that Plaintiff have judgment against

Tolliver for whatever sums may be found due and owing to Plaintiff under the

accounting;



5. FIFTH CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY




6. SIXTH CAUSE OF ACTION FOR DECLARATORY RELIEF

A. For a declaration of the rights of the parties to the Intellectual Propertyassets of

the Band, including the right to the name of the Band "Ives," as well as right to the

use of Tolliver's "name, voice, signature photograph and likeness" insofar as it is

contained in the Intellectual Property;



DATED: September 3, 2015 ENENSTEIN RIBAKOFF LAVINA & PHAM

By _£_«ENS, ESQ.

1__COMPLAINT

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Plaintiffs hereby demand a trial byjury of all matters triable byjury.

Dated: September 3, 2015 ENENSTEIN RIBAKOFF LAVINA & PHAM

COUR'FNE¥-MrflAVENS, ESQ.Attorney for Plaintiff


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VERIFICATION

STATE OFCALIFORNIA, COUNTY OF LOS ANGELES

I have read the foregoing COMPLAINT FOR: (1) BREACH OF PARTNERSHIPAGREEMENT; (2) BREACH OF THE IMPLIED COVENANT OF GOOD FAITH ANDFAIR DEALING; (3) PARTNERSHIP DISSOLUTION; (4) ACCOUNTING: (5) BREACHOF FIDUCIARY DUTY; (6) DECLARATORY RELIEF and know its contents

HI Iam aparty to this action. The matters stated in the foregoing documents are true of myown knowledge except as to those matters which are stated on information and belief andto those matters I believe them to be true.

D Iam D an officer D apartner • a of ., a party to thisaction, and am authorized to make this verification for and on its behalf, and Imake thisvsrification for that reason.

D Iam informed and believe and on that ground allege that the matters stated in theforegoing document are true.

• The matters stated in the foregoing document are true of my own knowledge exceptas to those matters which are stated on information and belief, and as to thosematters I believe them to be true.

• I am one of the attorneys for _, a party to this action. Such party isabsent from the county ofaforesaid where such attorneys have their offices and 1makethis verification for and on behalf of that party for that reason. I am informed and believeand on that ground allege that the matters stated in the foregoing document are true.

Executed on 1 September, 2015, at Albuquerque New Mexico.

Ideclare under penalty ofperjury under the laws ofthe State ofCalifornia that theforegoing is true and correct.

Drew^New

VERIFICATION TO COMPLAINT

Newman v. Tolliver - Ives the Band complaint.pdf

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Transcript of Newman v. Tolliver - Ives the Band complaint.pdf