Professional Documents
Culture Documents
1 Pfeiffer Thigpen Fitzgibbon & Ziontz LLP: Superior Court of The State of California The County of Los Angeles
1 Pfeiffer Thigpen Fitzgibbon & Ziontz LLP: Superior Court of The State of California The County of Los Angeles
OF ORIGINAL FU..ED
1 PFEIFFER THIGPEN FITZGIBBON & ZIONTZ LLP Los Angeles Superior Court
JON PFEIFFER (State Bar No. 118601)
2 233 Wilshie Boulevard, Suite 220 APR 19 2011
Santa Monica, Calfornia 90401
3 Telephone: (310) 451-5800 John A. larke. t~c~utjve Offcer/Clerk
By
. Depue.
4 Facsime: (310) 451-1599
6 BC459841
5 Attorneys
7
for Plaintifs
Anson Wilams, Maron Ross, Don Most, Eri Moran and Patrcia Bosley
27 epitomie what is worst in corporate America, exemplifg the worst business practices.
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2 "Happy Days" merchandise. Despite this on-going obligation, Defendants adopted a "don't
3 ask, don't pay" policy. If you don't ask, then we don't pay. Plaintiffs intend through this
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lawsuit to make Defendants pay what they promised to pay.
5
THE PARTIES
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3. Plaintiff Anson Wilams ("Wiliams") is, and at al ties relevant hereto was, an
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i: 9 4. Plaintiff Marion Ross ("Ross") is, and at al ties relevant hereto was, an individual
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i: residing in Los Angeles County, Calornia.
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5. Plaintiff Don Most ("Most") is, and at al ties relevant hereto was, an individual
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i: .s a 14 6. Plaitiff Eri Moran ("Moran") is, and at al ties relevant hereto was, an individual
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i- residig in Los Angeles County, Calornia.
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i: 7. Plaintiff Patrcia Bosley ("Bosley") and at al ties relevant hereto was, an individual
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18 residig in Riverside County, Calforna. Patricia Bosley was married to Tom Bosley unti his
25 doing business with ths judicial distrct of Los Angeles County, California. In addition,
26 Paramount entered into written agreements with Plaitiffs to be performed in ths judicial
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distrct of Los Angeles County, Calfornia.
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2 Studios, Inc. ("CBS") is, and at al ties relevant hereto was, a Delaware corporation and is
3 doing business with ths judicia district of Los Angeles County, Calfornia.
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10. CBS is the successor in interest to Paramount. CBS has ratiied and contiued al of
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the actions and conduct of Paramount.
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11. Does 1 through 25 are fictitious names of defendants sued herein under the
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8 provision of Section 474 of California Code of Civil Procedure because their tre names and
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II =:E 14 12. Plaintiffs are informed and believe, and on that basis alege, that at al ties
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i- relevant hereto, the defendants, and each of them, were actig on behalf o~ and as the
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i: employee, agent and/or representative of each other and with the consent, knowledge and
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18 permission of each other and with the consent, knowledge and permission of each of the
19 remaining defendants, and were actig within the course, scope and purpose of said
20 employment, agency, authority and/or representation. Plaintiffs also are informed and
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believe, and on that basis alege, that al defendants sued herein as Does, and each of them,
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acted in concert, participated in and aided and abetted in the acts aleged herein, or are in
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24 some manner responsible for the acts aleged herein. Plaintiffs futher are informed and
25 believe, and on that basis alege, that some or al of the acts and omissions aleged herein and
26 some or al of the damages sustained by Plaintiffs occurred within this
judicia distrct of Los
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Angeles County, Calfoinia.
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2 "Defendants."
8 around the television and be captivated by the Cunninghams' and their friends' adventues
9 durig the 1950s. Although the show has since wrapped, "Happy Days" has had a lastig
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i: effect on Americans as well as American television and is sti an integral part of pop culture
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~~~ even today.
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C)~ro 13 15. According to CBS, the show is a "Television Icon," the "#12 TV Series of Al-
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i- vi 15 16. Plaintiffs were cast members of "Happy Days." Anson Wilams played the role of
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i: Warren "Potsie" Weber, Maron Ross played the role of Maron Cunningham, Don Most
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18 played the role of Raph Malph, Eri Moran played the role of J oanie Cunningham and Tom
. 1 9 Bosley played the role of Howard Cunningham.
20 17. Throughout "Happy Days'" successfu ru and through the present, the show has
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generated endless merchandise. Defendants licensed Plaintifs' images to third parties for
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hundreds of merchandising products such as lunch boxes, tee shits, board gaes, greetig
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24 cards, drinkig glasses, etc. that resulted in a signficant revenue stream for Defendants.
25 18. Most recently, Plaintifs began seeing their images on gamblig machines. Plaintiffs
26 are informed and believe that Defendants licensed the Plaintiffs' images (sti images and video
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clips) to third parties for use on slot machines in casinos across the world. Plaitifs are also
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3 19. Defendants added to their income stream by releasing the fist five'seasons of the
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television show on DVD. Defendants utize Plaintifs images in connection with
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merchandising rights to help market and sel the DVDs.
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20. "Happy Days - The Complete First Season" was released by Defendants on or
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8 about August 17, 2004 ("First Season DVD"). The First Season DVD box cover art features a
i: 9 photo that includes the images of Wilams and Most in a jukebox. The back of the box
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i: features several photos of the cast that include the images of Ross and Tom Bosley in one
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Q) en photograph and the images of Wilams, Most and Moran in another photograph.
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C)~ro 21. There are 3 individual sli cases for each disc that slide out from the DVD box.
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11,= :E 14 Al 3 slim cases have photos on the front with the episode titles, summaries and origial
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i- airdates on the back. The case for Disc 1 has a photo on the front that includes the images of
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i: Wiliams and Most. Inside are photos that include images of Wilams and Ross. The case for
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Disc 2 has a photo on the front that includes the images of Ross, Tom Bosley, and Moran and
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19 a photo on the back that includes the images of Wilias and Most. Inside are photos that
20 include images of Wilams, Most, Moran and Tom Bosley. The case for Disc 3 has a photo
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on the back with the images of Bosley and Ross. Inside are photos that include the images of
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Ross, Tom Bosley, Wiliams, Most, and Moran.
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24 22. "Happy Days - The Second Season" was released by Defendants on or about Apri
25 17,2007 ("Second Season DVD"). The Second Season DVD was released as a 4-disc set in a
26 multi-DVD case. The cover art features a photo that includes the images of Ross, Tom
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3 23. "Happy Days - The Third Season" was released by Defendants on or about
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November 27, 2007. ("Third Season DVD"). The Thid Season DVD was released as a 4-disc
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set in a multi-DVD case. The cover art featues the images ofWilams and Most. The back of
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Most, Tom Bosley and Ross.
7 the case features photos of the cast that include the images of
8 24. "Happy Days - The Fourth Season" was released by Defendants on or about
i: 9 December 9, 2008 ("Fourth Season DVD"). The Fourth Season DVD was released as a 4-disc
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i: set in a multi-DVD case. The cover art featues the images ofWilams and Most. The back of
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i:~ro the case features photos of the cast that include the images of Most, Wils, Tom Bosley,
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II '5:E 14 25. The First Season DVD, the Second Season DVD, the Thid Season DVD and the
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i- Fourth Season DVD were released not only in the United States and internationaly.
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i: 26. Plaitiffs are informed and believe that Defendants have released DVDs of the
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20 because, accordig to the CBS Consumer Products website, "Happy Days" has "Strong
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purchase-intent among women 18-54 and men 18-34."
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28. In addition to the revenue generated from licenses to third parties, Defendants sell
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24 "Happy Days" related merchandise on-lie. On its CBSstore.com website, Defendants display
25 images of Wiliams and Most in connection with merchandising rights to help market and sell
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2 29. Except for the specific amount of compensation to be paid to each actor for each
3 episode, Plaitiffs entered into substantiy identical contracts with Paramount. The
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contracts were titled "Agreement Between Player and Paramount Television, a Division of
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Paramount Pictures Corporation." Attached hereto as Exhibit "A" is a tre and correct copy
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7 of the operative agreement (the "Agreement").
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i: 31. As the successor in interest to Paramount, CBS and Does 1 through 25 have
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~~~ assumed Paramount's rights and obligations under the Agreement.
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13 32. Defendants agreed to pay Plaintifs each
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II =:E 14 was used in connection with merchandising rights. Paragraph 18 of the Agreement sets forth
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i- Defendants' obligations concerng merchandising as follows:
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i: Where Player's name, voice, likeness or endorsement used in connection with
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merchandising rights, Player wi receive 5% of 100% of net proceeds, to be
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19 reduced to 2-1/2% of 100% if used in conjunction with name, voice, lieness
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DEFENDANTS' FAILURE TO PROVIDE REVENUE REPORTS
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not monitor merchandising.
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2 determie whether Plaintifs were owed money related to merchandise. Plaitifs did
3 not have access to ths information.
18 Moran made the same inquir and received the same response - no money was owed
19 to her. This was false.
20 38. Plaintiffs did not.and could not have reasonably discovered facts constitutig
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Defendants' breach of contact, fraud and conversion of monìes unti Plaintifs learned there
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were "Happy Days" slot machines in casinos.
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39. Defendants have entered into tolling agreements such that the period of tie for
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25 defining, calculatig, or determg whether the applicable statutes of litations have ru
26 shal not include any of the ~e from July 29, 2010 to the present.
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Paragraphs 1 through 39, inclusive, of this Complaint.
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41. Defendats owed Plaintifs a duty of good faith and fai dealg by virtue of the
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7 Agreement. This duty included the obligation act in fairly and in good faith when determg
8 whether to "deduct 50% of gross as handlg fee."
i: 9 42. Defendants' Business Conduct Statement provides that "(o)beyig both the letter
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and spirit of the law is one of the foundations of CBS's ethical standards."
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i:~", 43. Defendants have failed and refused to pay the amounts owed to Plaintifs for
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II =:E 14 with merchandising rights (in al its forms).
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i- 44. Plaintiffs are informed and believe, and thereon alege, that Defendants intend to
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i: always deduct "50% of gross as handling fee" from amounts owed to Plaintifs.
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45. Plaintiffs have performed al conditions, covenants and promises under the
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1 9 Agreement requied of them except for those that have been excused due to the failure of
20 performance by Defendants.
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46. Defendants' refusal and failure to pay the amounts owed to Plaintiffs for revenue
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received as a result of the use of the actors' name, voice or lieness in connection with
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24 merchandising rights (in al its forms) constitutes a material breach of the Agreement.
25 47. Defendants intention to always deduct "50% of gross as handlg fee" regardless of
26 the actual handlg costs violates Defendants' Business Conduct Statement and constitutes a
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materi breach of the implied covenant of good faith and fair dealg in the Agreement.
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2 Plaintiffs are informed and believe, and thereon alege, that they have been damaged in the
3 amount exceedig Ten Miion Dollrs ($10,000,000.00), together with interest thereon at the
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full lega rate.
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SECOND CAUSE OF ACTION
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7 (By Plaintifs Against Defendants For Fraud by Concealent)
8 49. )?laìntifs realege and incorporate by reference the alegations set forth in
19 Plaintiffs are informed and believe, and thereon alege, that they have been damaged in the
20 amount exceeding Ten Milion Dollars ($10,000,000.00), together with interest thereon at the
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full lega rate.
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55. Defendants are guilty of oppression, fraud and malce and Plaintiffs are entitled to
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24 recover ex~mplary and punitive damages pursuant to Section 3294 of the Calforna Civi
25 Code, for the sake of example and by way of punishing Defendants, in an amount to be
26 determied by the
trier of fact.
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8 percentage of the monies received. Defendants also promised Plaintiffs that theywould
9 provide periodic revenue statements when revenue had been generated relatig to
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i: merchandise. These promises were importat to the transaction.
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i:~", 58. Defendants did not intend to fuy perform the promises when they made them.
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14 by faiing to provide revenue statements. In addition, Defendants did not intend to pay the
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i- money to Plaintifs as they promised.
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i: 59. Plaintiffs reasonably reled upon Defendants promises.
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60. Defendants did not keep their promises and Plaintiffs reliance upon Defendants'
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19 false promises was a substantial factor in causing Plaintifs har.
20 61. As a direct and proximate result of Defendants' false promises, Plaintifs are
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informed and believe, and thereon alege, that they have been damaged in the amount
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exceedig Ten Miion Dollars ($10,000,000.00), together with interest thereon at the fu lega
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24 rate. '
25 62. Defendants are guilty of oppression, fraud and malce and Plaintiffs are entitled to
26 recover exemplar and punitive damages pursuant to Section 3294 of the Calfornia Civi
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" 8 64. Defendants had exclusive control over the use of Plaintiffs' name, voice or likeness
i: 9 in connection with merchandising rights. Defendants also had the exclusive right to collect
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i: amounts owed to Plaintifs for revenue received as a result of the use of the Plaintifs name,
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i:~", voice or lieness in connection with merchandising. As such, Defendants acted as Plaintifs'
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i- 65. Defendants collected and received money in connection with merchandising rights.
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i: Defendants knew that a specific amount of the money it collected and received in connection
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18 with merchandising rights belonged to Plaitifs. Plaitifs had an imedite right to "
19 possession of these sums. Despite this knowledge, Defendants kept the money for their own
20 use.
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66. Despite a demand from Plaintifs, Defendants have faied and refused to pay the
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recover exemplary and punitive damages pursuant to Section 3294 of the Calforna Civi
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Code, for the sake of example and by way of punishing Defendants, in an amount to be
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7 determied by the trier of fact.
8 WHEREFORE, Plaitifs pray for relief as follows:
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a. For actual damages in an amount to be determined accordig to proof, but in no
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event less than Ten Mion Dollars ($10,000,000.00), plus interest thereon at the maximum
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7 rate alowed by law;
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By:
NORTH HOLLYWOOD
C~r.IFOIS:rA 91602
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"THE HAPPY DAYS II
::e:::;:::-_: THIRTY (30) MINUTE SERIES
::. . ?.ole: JOAN
IE
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_... --~-=~'-;~~~-.~-I
~. - --- ~ay~ents ~a??~ica~:e o~~y - . ~ per~i~episode
$1,600.00
~o ?rosr~=s . ~_=~~ye~
~è~cn
~e~~ers se~vices a::¿ ap?ears ::eccg~~z~ly ot~er t~an ~n ~~e stan-
c~::~ o?e~ings 1 br~¿~es! cl~si~gs l ieac-i~s a~d iea¿-ó~~s. thereof) :
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SAG MinimUm plus 10%
(b) Theatrical Release:
(i) u.s.: .50% of applicable initial program payment
(ii) Foreign Release: 50% of applicable initial progrp.m pa):
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::: ;:::~:e::::v:::::t:run:~G ~J:::m:nimum .: Æ~~- ~J l ..., ...-.. ,'l; 1
15. Payor Play: All guarantees herein are payor play subject to our
termnation and suspension rights herein.
16 . Billing: The fOllowing billing will be accorded Player on English
language prints of each episode and the pilot in which Player appears
recognizably (other than in standard openings, 'closings, bridges,
lead-ins and lead-outs). Any inadvertent failure to accord Player
such credit will not be construed as a breach of this agreement.
Feature billing; placement and trea~~ent at Producer's discretion.
19. Persona.l Appearances: For sponsor (s) r buyer (s) and/or. netviork sub-
ject to Player1savailability. Player will be furnished first-elassr
round-trip transportation plus reasonable living expenses.
20. Grant of Rights; Assignment and Loanout; SAG Bene.fits: Player
hereby grants to us all rights to his services hereunder and,
in and to the res ul ts and proceeds. thereof. We shall have the
right to assign any and all of our rights under this agreement
or any of our rights to such services, or the results and
proceeds thereof, or to loan out the services of Player for the
pilot and/or series. Further, except as specifically othen.¡ise
herein provided,. t.¡e shall 'be entitled to .the maximum benefits
of the SAG Agreement for the minimum payments, including, with-
out limitation, the right to use the maximum numer of weeks to
produce the series. Player acknowledges that this paragraph
satisfies any provision of the SAG Agreement requiring Player's
specific agrea~ent in Player's individual contract (including,
without limitation, Player. s agreement to perform services
and/or appear, without additional compensation, in standard
openings, closings, bridges,
lead-ins and lead-outs).
21 ~ EXClusivity: Player's services for television and the use of
Player's nãfe, voice, likeness and endorsement'
shallthe
to us during the term of this agreement and through be network
exclusive
broadcasts (including repeats) of the programs hereunder, except
that, provided Player is not in default hereunder, Player may do
three (3) television guest appearances which may be in prime time,
in each thirteen °C 13) week period, unlimt ted radio guest
appearances and unlimited non-prime time game, panel or talk show
television guest appearances (provided same do not conflict or
interfere with Player's obligations hereunder and subject to the
limi tations on such appearances set forth herein). Player may ..
render services other than in connection with radio and tele-
vision (provided same do not conflict or interfere with Player's
obligations hereunder) and authorize use of his name and likeness
to advertise and publicize such permtted outside services or
those arising from contracts
entered into prior to the date
hereof subject to paragraph 17. It is understood that no
appearance or other activities permtted hereunder shall be in
connection with or on programs sponsored by products or services
competitive to the products or services being advertised by the
l1majo_r" sponsor(s) of the series. A "major" sponsor is one ,,-¡ho
Sponsors at least .
eight . (8) minutes of a. ..thirteen(l3). week periõd,
regardless of the length of time of the series. No television or
radio appearance hereunder may be in a continuing role, the Player
may not portray the same continuing character as he portrays in
the series (or a parody of such role without our approval), and
no such appearance may be made on any program scheduled to be
broadcast during the regularly scheduled time period of the series.
22. Reinstatement: Ninety (90) day turn-around right.
23. Player's Personal Information:
~~'\Pcc¡ ~
Address
~~¡$'C\'; ~
U. S .A. ~'- ~l'(.i~ 1)
Telephone No. Ci tizenship Birth Date
2/13/73 -4-
(( 't A c.~b
Social Security No.
Draft Status
Player will advise us promptly of any change in abOVê information.
any
such. application shall be denied in whole or in part, any such
denial shall not consti tute a breach of this agreement by the
Producer nor shall Player be excused during the pendency of
such .application or after such denial from furnishing and
rendering his services at the times and in the manner herein
provided.
26. l1emorandwn Agre'ement: The parties agree that those customary
provisions which are normally included in employment agreements
of this type are deemed included herein. These customary pro-
visions shall include
i without limitation, those relating to
rr~rals and equitable relief (which provisions shall, in' any event,
conform to the provisions of the applicable agre~üents with
sponsors, networks or ot~er buyers respecting broadcasting of
the series or program). Subject to good fai th n~gotia-tions, v7e.
may prepare a formal agreement inc9rporating the provisions of
this Memorandum Agreement and the aforesaid customary provisions,
which each party. shall then execute but, pending such preparation
and execution, this Memorandum Agreement shall constitute the
~greement of the parties.
PARM10UNT TELEVISION, ~
A DIVISION OF
PARA'íOUNT PICTURES CO æORATION
1JBY
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