Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA885465
`03/23/2018
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding.
`
`92066804
`
`Plaintiff
`Laurence Grante
`
`Defendant
`Richard Breakspear
`
`Yes
`
`Applicant
`
`Other Party
`
`Have the parties
`held their discov-
`ery conference
`as required under
`Trademark Rules
`2.120(a)(1) and
`(a)(2)?
`
`Motion for Suspension in View of Civil Proceeding With Consent
`
`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly,
`Laurence Grante hereby requests suspension of this proceeding pending a final determination of the civil ac-
`tion. Trademark Rule 2.117.
`Laurence Grante has secured the express consent of all other parties to this proceeding for the suspension
`and resetting of dates requested herein.
`Laurence Grante has provided an email address herewith for itself and for the opposing party so that any or-
`der on this motion may be issued electronically by the Board.
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`of record by Email on this date.
`Respectfully submitted,
`/AnabellaBonfa/
`AnabellaBonfa
`abonfa@w-wlaw.com
`ccoate@abramscoate.com
`03/23/2018
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`LAURENCE GRANTE,
`
`Cancellation No. 92066804
`
`Petitioner,
`
`vs.
`
`RICHARD BREAKSPEAR,
`
`Respondent.
`
`In re Registration No.5264123
`
`CONSENTED MOTION FOR SUSPENSION OF PROCEEDINGS
`
`ORIALTERNATIVELY RE UEST TO CONTINUE DEADLINES BY 90 DAYS
`
`
`
`
`
`Pursuant to C.F.R. Part 2, Rules of Practice Rule 2.117(b)(c) and TBMP §§ 510 and 511
`
`plaintiff Laurence Grante and defendant Richard Breakspear hereby move. the Trade Mark Trial
`
`and Appeal Board (“Board”) for: 1) An order to grant a suspension of this Trademark action until
`
`December 1, 2018 or, alternatively; 2) An order to continue deadlines in the action herein by 90
`
`days due to a pending civil action, in the Superior Court of California, County of Los Angeles
`
`Case No. BC648462, in Dept. 50 before the Honorable Teresa A. Beaudet.
`
`The Los Angeles Superior Court Action was filed initially by Respondent herein, Richard
`
`BreakSpear, and Breaknite, Inc. on January 26, 2017 (a true and correct copy is attached hereto
`
`as Exhibit “A”) and alleges causes of action for: l) Breach of Fiduciary Duties; 2) Constructive
`
`Fraud; 3) Accounting; 4) Imposition of Constructive Trust; and 5) Breach of Oral Partnership
`
`Agreement. On September 7, 2017, Petitioner Laurence Grante herein filed a cross—complaint
`
`against Breakspcar. The operative cross—complaint is the First Amended Cross-Complaint filed
`
`

`

`on October 13, 2017 (a true and correct copy is attached hereto as Exhibit “B”) which alleges
`
`the following causes of action:
`
`1) Intentional Misrepresentation— Fraud; 2) Breach of Oral
`
`Contract; 3) Conversion; 4) Tortious Interference with Prospective Economic Advantage; and
`
`5) Fraudulent Registration of Trademark 15 U.S.C.§1120; 15 U.S.C. § 1119. A demurrer to the
`
`First Amended Cross—Complaint has been filed and is pending hearing on May 14, 2018.
`
`The facts raised in the Los Angeles Superior Court Action, —raise cross-over issues of fact
`
`and law as in the current action before this court as they both involve the use and registration of
`
`the trademark Thinkup Anger currently being litigated in this action.
`
`To avoid duplicate
`
`discovery, cost and disparate legal rulings of law and fact, the parties seek to either suspend the
`
`current action until after trial of the Los Angeles Superior Court action, or at least continue
`
`deadlines in this action by 90 days as the parties haVe a Mandatory Settlement Conference
`
`scheduled on May 22, 2018 in the Los Angeles Superior Court Action which may resolve both
`
`actiOns. A suspension or temporary suspension would benefit both the court and the parties. A
`
`trial date on November 7, 2018 and Final Status Conference on October 26, 2018 have been set
`
`in the Los Angeles Superior Court action, therefore, suspension until December 1, 2018 would
`
`be appropriate in the action herein.
`
`///
`
`///
`
`

`

`The parties respectfully request either a suspension to December 1, 2018: or at least a 90
`
`day suspension of deadlines in the current matter. Currently, in this matter, the parties’ expert
`
`disclosures are due on April 13, 2018 and discovery closes on May 13, 2018. Therefore,
`
`continuation of deadlines is necessary.
`
`Dated: March AZ}, 2018
`
`Respectfully Submitted,
`
`By: {Anabella Q. Bonfaf
`
`Anabella Q. Bonfa
`Cal. Bar No. 82897
`
`abonfad—Ilw-wlawcom
`
`Wellman & Warren LLP
`
`24411 Ridge Route, Suite 200
`Laguna Hills, California 92653
`
`Phone: (949) 580-3737
`
`Fax: (949) 580-3 73 8
`Counsel for Petitioner
`
`Laurence Grante
`
`Respectfull Submitted,
`
`
`Cal Bar No. 140404
`
`r:cnzrlct‘mahrnmscnalu.com
`
`Abrams Coate LLP
`
`1240.0 Wilshire‘ Blvd, Suite 10160
`
`Los Angeles, CA 90025.
`Phone (310) 5766161
`
`Dated: March%, 2018
`
`

`

`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that on this 23rd day of March 2018, I electronically served the
`
`foregoing, CONSENTED MOTION FOR SUSPENSION OF PROCEEDINGS
`
`OR/ALTERNATIVELY, REQUEST TO CONTINUE DEADLINE BY 90 DAYS
`
`on the following by forwarding said copy Via email to:
`
`Charles M. Coate
`
`Abrams Coate, LLP
`
`12400 Wilshire Blvd., Suite 1060
`
`Los Angeles, CA 90025
`
`Email: ccoalenfuabrumscoatecom
`
`Dated: March 23, 2018
`
`By: /Havaia Frljuckic/
`
`

`

`EXHIBIT A
`
`

`

`
`
`Charles M. Coate,,Eszg. (SBN 140404)
`Shian Brisbois, EsmaBN2 279072)
`ABRAMS COAT
`12400 Wilshire Blvd. Ste. 1060
`IfifisAn £11205), $7.661 960185
`Fax:8310) 5766160
`Emai ccoate
`abramscoatecom
`Attorneys for
`laintiffs Richard Breakspear
`and BreakNite, Inc, a California corporation
`
`one:
`
`1
`
`-
`
`1
`
`FILED
`SuperiorCourtofCalifomia
`Countv M 1m Aneeles
`.
`JAN 26 2017
`ShemR.Carter.ExecutiveUtficerlClerk
`BYM' _ ,,
`.Deputy
`M0805 Solo
`
`.
`
`_
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`COUNTY OF LOS ANGELES
`
`(BEWO‘ET
`9’50 IRRESA 1A-
`RICHARD BREAKSPEAR, an
`Case N0-= BC 6 4 8 4 6 2
`1nd1v1dual, and BREAKN'ITE, INC., a
`COMPLAINT FOR:
`California corporat1on,
`
`
`
`
`
`.
`
`.
`
`‘
`
`l. BREACH OF FIDUCIARY DUTIES
`2.
`CONSTRUCTIVE FRAUD -
`3.
`FRAUD
`4. ACCOUNTING
`5.
`IMPOSITION OF CONSTRUCTIVE
`TRUST
`BREACH OF ORAL
`PARTNERSHIP AGREEMENT
`
`6.
`
`DEMAND FOR JURY TRIAL
`
`Pl
`
`.ff
`.
`ainti
`S,
`
`VS'
`
`,
`.
`_
`- LAURENCE GRANTE, an 1nd1V1dual;
`GRANITE PRODUCTIONS, INC., a
`Florida corporation, dba in California as
`"Think Up Anger," and DOES 1 through
`10, inclusive,
`
`Defendants.
`
`
`
`JURISDICTION AND VENUE
`
`£1.13!
`H
`fir-Jam,
`.1
`California Code of Civil Procedure §410. 10. The amount in coiiirgversy "ingegcessjo t
`4-1]: If“)
`$150,000.00 exclusive of interest and costs. Furthermore, venue'is'piioper innthgsgudima-
`UT?‘-
`district pursuant to C.C.P. §395, since the Defendants are domiciled in Los{Engelo
`Hm
`County and the conduct giving rise to harm to Plaintiff occurredin Los AngelerfiEounty
`an 5.4
`-
`City of Los Angeles.
`m
`5":
`he 5a?-
`lfr if]
`
`1 E . F 53 F“ E"
`
`COMPLAINT
`a EEG?! PEAL
`
`
`
`10
`
`11
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`12
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`13
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`14
`
`15
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`16
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`18
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`19
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`20
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`21
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`22
`
`110111010
`
`
`
`
`
`This Court has personal jurisdiction over the Defendantsin this act1’3113:1313HIMMic}id
`
`Wt]
`
`"1wigssa ma
`
`C: h:-
`
`
`
`
`
`
`
`
`

`

`O _
`
`'
`
`5
`
`THE PARTIES
`
`ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
`
`1.
`
`RICHARD BREAKSPEAR (“BREAKSPEAR” or “Plaintiff”) is a citize
`
`of the State of California, residing in the City of Los Angeles and is the President of an
`
`sole shareholder of BREAKNITE, INC. ("BREAKNITE”), a California corporation.
`
`BREAKSPEAR now holdsxa 100 percent (100 %) ownership interest in BREAKNITE.
`2.
`Plaintiffs allege that Plaintiff BREAKNITE,
`INC.
`is a Califomi
`
`corporation, which maintains its principal place of business in the city of Los Angeles,
`County of Los Angeles, State of California, 410 N. Rossmore Ave., #410, Los Angeles,
`
`California 90004.
`
`3.
`
`Plaintiffs allege that Defendant LAURENCE GRANTE (“GRANTE”) is
`
`citizen of the State of California, residing in Los Angeles, California. At relevant time
`
`herein, GRANTE was prior to his resignation, an officer and shareholder of, and th'
`Treasurer and the Chief Financial officer of, a director of and a 50% shareholder o
`
`BREAKNITE, INC. ("BREAKNITE"), a California corporation. Previously, GRAN
`
`
`
`
`
`
`
`
`held a fifty percent (50 %) ownership interest in BREAKNITE, which he has disclaime
`by his written resignation on December 16, 2016. As a result, BREAKSPEAR is the sol
`shareholder and officer of BREAKNITE, and according to GRANTE, "as of th
`
`
`
`Resignation Date my affiliation and participation in any and all activities of BreakNite
`Inc. has permanently ceased". Accordingly, BREAKSPEAR is BREAKNITE'S sol
`
`
`("GRANITE") is a Florida corporation doing business in California as "Think Up Anger"
`which maintains its principal place of business in the city of Los Angeles, County of L0
`
`acting director as well. A true and correct copy of GRANTE's December 16, 2016 lette
`
`of resignation is attached hereto and incorporated by reference herein as Ex. "A."
`4.
`Plaintiffs
`allege
`that Defendant GRANITE PRODUCTIONS,
`
`INC
`
`Angeles, State of California, 410 N. Rossmore Ave., #410, -Los Angeles, Califomi
`90004. Plaintiffs are informed and believe and on that basis allege that GRANTE is th
`
`2
`
`COMPLAINT
`
`
`
`
`
`
`
`
`
`
`
`10
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`11
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`12
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`14
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`15
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`I6
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`17
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`18
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`19
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`20
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`21
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`22
`
`LIBZIL-Zn'1,0
`
`

`

`
`
`O.'
`
`b
`
`President of (“GRANITE”).
`
`
`
`5.
`
`Plaintiffs are further
`
`informed and believe and allege thereon tha
`
`GRANTE is an “alter-ego” of GRANITE. Plaintiffs are fiirther informed and believe an
`
`alleges thereon that at all relevant times herein mentioned there existed a unity of interes
`
`and ownership between GRANTE, on the one hand, and GRANITE on the other hand
`
`u
`
`such that any individuality and separateness between GRANTE and GRANITE ha
`
`ceased. Plaintiffs are further informed and believe that, GRANTE at all relevant time.
`
`mentioned herein, through such ownership exercised complete control and dominanc
`
`over GRANITE to such an extent
`
`that any purported individuality or separatenes
`
`shell, instrumentality and/or conduit through which GRANTE conducted his business an
`
`10
`
`affairs, and here particularly his conduct against Plaintiffs as alleged herein.
`
`11
`
`12
`
`13
`
`14
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`15
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`16
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`17
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`18
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`6.
`
`Plaintiffs are also informed and believe and alleges thereon that at relevan
`
`times, GRANITE was not adequately capitalized, and that there was a failure to maintai
`
`minutes or adequate corporate records of the transactions at issue in this action.
`
`7.
`
`Plaintiffs are informed and believe and allege thereon that adherence to th
`
`fiction of the separate existence of GRANITE as an entity distinct from GRANTE would
`
`sanction fraud, permit an abuse of the corporate privilege and promote injustice.
`
`Therefore, for purposes of this action, as a matter of equity, the corporate identity 0
`
`GRANITE should be disregarded and Defendants GRANTE and GRANITE should 1)
`
`found jointly and severally liable for the conduct of each other, without regard to th
`
`corporate existence of GRANITE.
`
`8.
`
`The true names and capacities of defendants sued as DOES 1 through 1
`
`19
`
`are unknown to Plaintiffs, who therefore sue such defendants by these fictitious names.
`
`20
`
`21
`
`Plaintiffs will seek leave of court'to amend this Complaint to allege their true names an
`
`capacities when they have been ascertained. Each of the DOE defendants is responsibl
`
`in some manner for the events referred to in this Complaint and has caused damages t
`
`22
`
`Plaintiffs. The Defendants, and each of them, at all relevant times, were the agents,
`
`
`
`3
`
`COMPLAINT
`
`
`
`11331313418
`
`
`
`
`
`
`
`

`

`existing Florida corporation, defendant GRANITE which in turn conducted and continues.
`
`10.
`
`Following a positive working relationship with each other over the years, i
`
`or about 2014, BREAKSPEAR and GRANTE decided to form a business partnershi‘j
`together and manifested an intent to equally partner together on a 50/50 basins in a musij
`
`O.'
`
`U
`
`servants, representatives and/or employees of each other, and were acting within th
`
`course and scope of their agency, service, representative capacity and/or employment,
`
`and with the full knowledge and/or ratification of their supervisor, principal and/0
`
`employer.
`
`'GENERAL ALLEGATION S
`
`9.
`
`Plaintiffs re-alleges and incorporate herein Paragraphs 1 - 8.
`
`production business. GRANTE had previously conducted business through the pre
`
`10
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`11
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`12
`
`13
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`I4
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`15
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`16
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`17
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`18
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`19
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`to conduct business
`
`in California under
`
`the name "Think Up Anger." Initiall
`
`BREAKSPEAR and GRANTE agreed to utilize Grante's pre-existing corporate entit
`
`GRANITE for purposes of billing clients on their joint behalf and for their joint benefi
`
`but then later both agreed as their business together grew that the creation of a new entit
`
`going forward made sense.
`
`11.
`
`In March 2016 BREAKSPEAR and GRANTE as equal partners jointl
`
`formed a new and separate corporate entity "BreakNite, Inc." that was jointly owned an
`
`operated by both of them to further facilitate their business partnership in musi
`
`production together. The formation of this new entity further manifested an intent h
`
`each to equally partner together in their music production business. Attached hereto and
`
`incorporated by reference herein as Ex. "B" is a true and correct copy of the Articles 0
`
`Incorporation of BreakNite, Inc. (CA Corp. No. 3881432) and the Unanimous Consent 0
`
`Its Directors.
`
`12.
`
`In addition to being governed by the California Corporations Code th
`
`20
`
`Unanimous Consent of Directors of Breaknite,
`
`Inc. made clear "that no contrac
`
`obligation involving the transfer of any substantial right
`
`in any major asset of th
`
`corporation shall be so signed and no substantial indebtedness shall be incurred withou
`
`21
`
`22
`
`4
`
`COMPLAINT
`
`
`
`
`
`
`
`
`111017.!liv'Ifi
`
`
`

`

`.,'
`
`6
`
`prior approval of the Board of Directors or any Committee thereof duly authorized to
`
`give such approval."
`13.
`In 2016 BREAKSPEAR became aware that GRANTE was usurping]
`
`BreakNite, Inc. assets and opportunities for his own exclusive personal gain, including b
`
`partnership and or BreakNite, Inc. opportunities and converting partnership and 0:]
`personally as well as GRANITE. GRANTE has further failed to account and pay In
`
`diverting clients ofand payments due to the partnership and/or BreakNite, Inc. to himselj
`licensing monies on shared works for which BREAKSPEAR rendered services as
`
`
`BREAKSPEAR as to GRANTE's prior failure to disclose and pay licensing on share
`
`
`"resigning" from BreakNite, Inc. Previously, GRANTE held a fifty percent (50 %
`ownership interest in BREAKNITE, which he has disclaimed and transferred all share
`
`and interest
`in by his written resignation on December 16, 2016. As a result
`
`
`equal partner and or through BreakNite, Inc. just because payment was diverted t
`
`GRANTE himself and/or GRANITE.
`
`14.
`
`In response to a- demand for
`
`full disclosure and an accounting b
`
`BREAKSPEAR is the sole shareholder and officer of BREAKNITE, and according t
`
`GRANTE, "as of the Resignation Date my affiliation and participation in any and a1
`
`
`
`activities of BreakNite, Inc. has permanently ceased." Accordingly, BREAKSPEAR i
`
`16
`
`BREAKNITE's sole acting director as well.
`
`15.
`
`BREAKSPEAR alleges that GRANTE's recent unilateral "resigning" from
`
`BreakNite,
`
`Inc. and "releasing" his shares in BreakNite,
`
`Inc.
`
`in no way absolve
`
`GRANTE from liability for usurping partnership and/or BreakNite, Inc. opportunities an
`
`converting such assets for his own exclusive personal gain. Plaintiff further alleges Lha
`
`GRANTE's failing to account and pay for licensing monies on shared works for whic
`
`BREAKSPEAR rendered services as an equal partner just because payment was diverted
`
`to GRANITE does not transmute such monies into GRANTE's sole property. Presently,
`
`
`
`
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`
`
`"181!in‘IEJj
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`19
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`20
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`21
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`22
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`
`
`5
`
`COMPLAINT
`
`
`
`

`

`._'
`
`U
`
`
`GRANTE/GRANITE continues to refuse to disclose and produce requisite documents,
`
`
`
`result in serious adverse tax consequences for BREAKSPEAR, which GRANTE has effective]
`
`ignored. Further, although GRANTE recently promised to provide such requisite information I
`the BreakNite's tax accountant, while refusing to speak to BREAKSPEAR, or counsel, he ha
`
`subsequently failed to do so.
`
`FIRST CAUSE OF ACTION
`(Egg Plaintiffs For Breach of Fiduciary Duties against
`Defendants GRANTE, GRANITE and Does l - 111.)
`
`
`
`
`
`
`
`10
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`11
`
`12
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`13
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`14
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`15
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`16
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`17
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`16.
`
`Plaintiffs
`
`re-allege and incorporate by reference the allegations 0
`
`the correct operation and supervision of company activities, no self dealing, and ful
`disclosure .of any conflicts of interest, inter alia. GRANTE, on his own behalf, and o
`behalf of Does 1 through 10, inclusive, had the duty to avoid conflicts of interest wi
`
`Plaintiffs, not to compete with his partner, and officers, directors and shareholders o
`BreakNite, Inc., and to otherwise act honestly, faithfully and in the highest good fai
`with respect to Plaintiffs. Further, GRANTE was not permitted to obtain any advantag
`over Plaintiffs in the affairs of the partnership or BreakNite, Inc. by the sliglltes
`
`
`paragraphs 1 through 15 of this Complaint.
`
`17.
`As an equal partner of BREAKSPEAR'S, and in his capacity as an office
`and Director of BreakNite, Inc., and as a equal shareholder in BreakNite, Inc., GRANT
`
`
`
`
`
`
`misrepresentation, concealment, threat or adverse pressure of any kind.
`18.
`Plaintiffs are informed and believe, and on that basis alleges that in 201
`
`GRANTE engaged in self dealing and usurped partnership and or BreakNite,
`
`lntj
`
`opportunities and converting partnership and or BreakNite, Inc. assets and opportunities
`
`6
`
`COMPLAINT
`
`
`
`iiflliitrifl
`
`18
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`19
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`20
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`21
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`22
`
`
`
`
`
`
`I
`
`

`

`
`
`O _
`
`O
`
`for his own exclusive personal gain, including by diverting clients of and payments (in
`
`to himself personally and/or GRANITE
`Inc.
`to the partnership and/or BreakNite,
`GRANTE has further failed to account and pay for licensing monies on shared works f0
`
`which Plaintiff rendered services as an equal partner and or through BreakNite, Inc. just
`
`because payment was diverted to GRANTE himself and/or GRANITE.
`
`19.
`Despite Plaintiffs' demand for full disclosure as to what opportunities have:
`been usurped by GRANTE and Plaintiffs' legal entitlement to an accounting of monies!
`received and or diverted by GRANTE, GRANTE has refused and continues to refuse to]
`
`properly disclose any of the foregoing.
`20.
`The above actions and omissions, which were made by GRANTE t
`
`
`
`
`
`
`
`
`Plaintiffs in a fiduciary capacity, were utterly false and/or constituted material omission
`
`of fact in violation of a duty to disclose.
`
`21.
`
`As alleged above, GRANTE has breached his fiduciary duties on his ow
`
`behalf and on behalf of Does 1 through 10, inclusive, to Plaintiffs herein. This conduc
`
`has damaged Plaintiffs to their extreme economic detriment.
`
`22.
`
`As a direct and proximate result of the foregoing breaches of fiduciar
`
`duties, Plaintiffs have been damaged1n an amount which13 not yet fully ascertained, bu
`
`which Plaintiffs are informed and believe, and alleges thereon, equals or exceed
`
`$150,000.00. Plaintiffs may also suffer adverse tax consequences by virtue o
`
`Defendants' conduct.
`
`23.
`
`The conduct and breaches of fiduciary duties on the part of GRANTE wer
`
`undertaken maliciously, willfully, wantonly, fraudulently and with a conscious disregard
`
`for. the rights of Plaintiffs. Plaintiffs are entitled to an award of punitive damages agains
`GRANTE and his alter ego GRANITEin an amount sufficient to punish and make a
`
`example of him according to his wealth and the reprehensibility of her conduct.
`
`///
`
`///
`
`///
`
`7
`
`COMPLAINT
`
`10
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`12
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`13
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`15
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`16
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`'17
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`18
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`20
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`21
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`22
`
`1111-1110111
`
`
`
`
`

`

`._'
`
`U
`
`SECOND CAUSE OF ACTION
`
`CONSTRUCTIVE FRAUD
`(By Plaintiffs Against Defendants GRANTE, GRANITE and Does l -10)
`Plaintiffs re-allege and incorporate the allegations in paragraphs 1 through 23 o4.
`24.
`
`this Complaint.
`25.
`' As alleged above, at relevant times mentioned herein, GRANTE owed fiduciar
`
`
`
`duties to Plaintiffs as a fellow equal partner and or officer, director and equal shareholder oi
`
`BreakNite, Inc. and was required to act honestly, faithfully, competently and with undivide
`
`loyalty to Plaintiffs' interests at all times, and/or to refrain from intentional misconduct, fraud
`knowing violations ofthe law.
`
`]
`
`26.
`
`At
`
`relevant
`
`times mentioned herein, Plaintiffs justifiably relied upon th
`
`representations made to them by GRANTE as a fellow equal partner and as an officer, directo
`
`and equal shareholder of BreakNite, Inc. Plaintiffs were further justified in believing that r15]
`
`material fact would be concealed by GRANTE in the context of their relationship as fellow equ
`
`partners and or as an officer, director and equal shareholder of BreakNite, Inc. As alleged abov
`in paragraphs 1
`through 25, GRANTE failed to disclose material facts to Plaintiffs whic
`GRANTE had a duty to disclose to Plaintiffs based on their relationship as fellow equal partner
`
`and or as an officer, director and equal shareholder of BreakNite, Inc. As a result of th
`
`constructive fraud of GRANTE described above, Plaintiff have sustained damages in an amoun
`
`which is not yet fully ascertained, but are informed and believe thereon allege that such damage
`
`are equal
`
`to or
`
`in excess of $150,000.00.
`
`Plaintiffs may also suffer adverse ta
`
`
`
`
`
`10
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`ll
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
`
`21
`
`22
`
`I'll/If)
`[Nil
`
`consequences by virtue of Defendants' conduct.
`27.
`Plaintiffs alleges that GRANTE, on his own behalf individually, and on behalf 0'
`
`Does 1 through 10, inclusive, was a partner of BREAKSPEAR and/or an officer and managin
`agent of BreakNite, Inc., and a managing agent of GRANITE liable for fraud as defined b
`California law by virtue of the above referenced conduct. Plaintiffs are entitled to recove
`punitive damages in an amount sufficient to punish and deter GRANTE, his alter ego GRANIT ‘
`and Does 1 through 10, inclusive, from repeating such conduct in the future.
`
`M
`
`S
`
`COMPLAINT
`
`
`
`
`
`
`
`
`
`

`

`
`
`C
`
`‘
`
`U
`
`THIRD CAUSE OF ACTION
`
`FRAUD
`(By Plaintiffs Against Defendants GRANTE, GRANITE and Does 1 - 10)
`
`28.
`
`Plaintiffs re-allege and incorporate the allegations in paragraphs 1 through 19 o
`
`this Complaint.
`
`29.
`
`As an equal partner of BREAKSPEAR's, and in his capacity as an officer,
`
`Director and equal shareholder of BreakNite, Inc., GRANTE had a fiduciary duty to
`Plaintiffs and the highest duty known to law to the stockholders of BreakNite, Inc. andi
`that duty included a high degree of care and effort
`to the correct operation and
`
`supervision of company activities, no self dealing, and full disclosure of any conflicts 01}
`
`GRANTE engaged in self dealing and usurped partnership and or BreakNite, Inc.
`
`interest, inter alia.
`
`30.
`
`Plaintiffs are informed and believe, and on that basis alleges that in 2016'
`
`
`
`
`
`
`
`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`opportunities and converting partnership and or BreakNite, Inc. assets and opportunitie
`for his own exclusive personal gain, including by diverting clients of and payments du
`
`to the partnership and/or BreakNite,
`
`Inc.
`
`to himself personally and/or GRANITE.
`
`GRANTE has further failed to account and pay for licensing monies on shared works f0
`
`which Plaintiff rendered services as an equal partner and or through BreakNite, Inc. jus
`
`because payment was diverted to GRANTE himself and/or GRANITE.
`31.
`Despite Plaintiffs' demand for full disclosure as to what opportunities hav
`
`been usurped by GRANTE and Plaintiffs' legal entitlement to an accounting of monie
`
`received and or diverted by GRANTE and/or GRANITE, GRANTE on his own behalf
`
`and on behalf of GRANITE has refused and continues to refuse to properly disclose an
`
`18
`
`of the foregoing.
`
`1181-7{1"ID
`
`19
`
`20
`
`32.
`
`The above actions and omissions, which were made by GRANTE t
`
`Plaintiffs in a fiduciary capacity, were utterly false and/or constituted material omission
`
`of fact in violation of a duty to disclose. This conduct has damaged Plaintiffs to thei
`
`21
`
`extreme economic detriment.
`
`22
`
`33. When GRANTE made the representations or failed to disclose the materia
`
`9
`
`COMPLAINT
`
`

`

`
`
`I 7
`
`b
`
`omissions of fact alleged in paragraphs 1 - 19 and 25 through 28, he knew of the falsity
`of such representations and/or had no reasonable grounds to believe such representations‘
`to be true. Further, GRANTE made such representations and/or failed to disclose such
`material facts with the intent to defraud Plaintiffs of their share of the profits and {0|
`
`induce BREAKSPEAR to render services in the furtherance of their partnership and or
`
`In justifiable reliance on GRANTE'S representations and ignorant of theirI
`
`BreakNite, Inc. for their mutual benefit.
`34.
`falsity, BREAKSPEAR in 2014 agreed to render services on behalf of a partnership with
`GRANTE and later on behalf of the company they formed together BreakNite, Inc. Had
`
`BREAKSPEAR known that the above representations were not truthful, or were mad
`
`without any grounds for believing them to be true, he would not have entered into
`partnership with GRANTE and later formed a company BreakNite, Inc. with GRANTE.
`35.
`As a result of the misrepresentations and omissions of material fac
`
`described above, Plaintiffs are informed and believe and on that basis, allege that the
`
`have sustained damages equal to or in excess of $150,000.00 as well as costs, interest an
`
`attorneys’
`
`fees.
`
`Plaintiffs may also suffer adverse tax consequences by virtue o
`
`Defendants' conduct.
`
`36.
`
`Plaintiffs alleges that GRANTE, on his own behalf individually, and 0
`
`behalf of his alter ego GRANITE, and Does 1 through 10, inclusive, was a partner andfo
`officer and managing agent of BreakNite, Inc., and managing agent of GRANITE, liabl
`
`for fraud as defined by California law by virtue of the above referenced conduct.
`Plaintiffs are entitled to recover punitive damages in an amount sufficient to punish an
`
`deter GRANTE, GRANITE and Does 1
`
`through 10,
`
`inclusive, from repeating sue
`
`conduct in the future.
`
`///
`
`///
`
`m
`
`COMPLAINT
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
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`19
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`20
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`21
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`22
`
`Li’flZz‘iZf‘Ifl
`
`
`
`

`

`O.'
`
`U
`
`FOURTH CAUSE OF ACTION
`(For An Accounting By Plaintiffs Against Defendants GRANTE, GRANITE and
`
`Does 1 - 10)
`
`37.
`
`Plaintiffs
`
`reallege' and incorporate by reference the allegations
`
`0
`
`paragraphs 1 through 36 of this Complaint.
`38.
`As more particularly alleged above, Defendants have received direct and
`
`indirect financial benefits in the nature of secret profits resulting from the fulfillment 0
`
`their own conflicting interests over the interests of Plaintiffs herein.
`
`39.
`
`. GRANTE and GRANITE are in sole possession and control of the financial
`
`information with respect to these secret profits, and have either concealed it from o
`
`refused to make it available to the Plaintiffs herein.
`
`40.
`
`Plaintiffs are entitled to an accounting from GRANTE and GRANITE t
`
`each and every way in which Defendants have secretly profited as a result of thei
`
`conduct and breaches of fiduciary duty as to Plaintiffs herein.
`
`Defendants hold each and every such secret profit in constructive trust 0
`41.
`behalf of Plaintiffs by virtue of the prohibition against the making of secret profits b
`
`their fiduciaries.
`
`FIFTH CAUSE OF ACTION
`(fly Plaintiffs against Defendant GRANTE, GRANITE and Does 1 —10
`For Imposition OfA Constructive Trust)
`
`42.
`
`Plaintiffs
`
`re-allege and incorporate by reference the' allegations
`
`i
`
`paragraphs 1 through 41 of this Complaint.
`
`43.
`
`As a result of the foregoing, as a matter of equity, Plaintiffs seek th
`
`imposition of a constructive trust as against Defendants GRANTE, GRANITE and Doc
`1
`through 10,
`inclusive, with respect to any and all monies secretly held by sai
`
`Defendants such that Defendants shall hold any and all such monies for the expres
`
`benefit of Plaintiffs as constructive trustees therefore.
`
`I
`
`1
`
`COMPLAINT
`
`
`
`
`
`10
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`11
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`12
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`13
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`14
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`15
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`16
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`18
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`19
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`20
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`21
`
`22
`
`
`
`Zr’l'ili‘tfi
`
`5::
`H71
`
`

`

`
`
`..'
`
`hr
`
`SIXTH CAUSE OF ACTION
`{By Plaintiff BREAKSPEAR Against Defendants GRANTE, GRANITE and Does 1 - 10
`For Breach of Oral Partnership Agreement, In the Alternative}
`BREAKSPEAR re-alleges and incorporates by reference the allegations iri
`
`44.
`
`Following a positive working relationship with each other over the years, in
`production business. GRANTE had previously conducted business through the pre-
`
`paragraphs 1 through 23 of this Complaint.
`45.
`or about 2014, BREAKSPEAR and GRANTE decided to form a business partnershi
`
`together and manifested an intent to equallypartnertogether on a 50/50 basis in a musii]
`
`existing Florida corporation, defendant GRANITE which in turn conducted and continues!
`to conduct business
`in California under
`the name "Think Up Anger." Initiall
`BREAKSPEAR and GRANTE agreed to utilize Grante's pre-existing corporate emit
`GRANITE for purposes of billing clients on their joint behalf and for their joint benefi
`but then later both agreed as their business together grew that the creation of a new entit
`
`
`
`10
`
`ll
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
`
`21
`
`tta
`!7LL
`
`'th
`
`22
`
`
`
`
`
`going forward made sense.
`46.
`Under the terms of their oral partnership agreement, they agreed to jointl
`pool efforts for the equal benefit of each other, such that their efforts would be made on
`behalf of the partnership and jointly inure to the benefit of the partnership, such that th
`costs, benefits and profits from their partnership efforts would be equally split 50/50 a
`
`between each other.
`47.
`BREAKSPEAR has performed all conditions, covenants and promise
`required under the oral partnership agreement except those conditions, covenants and
`promises which have been prevented or otherwise excused by the conduct of GRANTE.
`48.
`As a direct and proximate result of the aforementioned breaches of contrac
`by GRANTE, BREAKSPEAR has been damaged in an amount which is not fully
`ascertained, but which it is informed and believes is equal to or in excess of $150,000.00,
`
`costs and attorneys’ fees.
`
`M
`
`12
`
`COMPLAINT
`
`
`
`

`

`O.'
`
`U
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiffs pray forjudgment against Defendants as follows:
`
`1.
`
`For general and compensatory damages currently equal to or exceedin
`
`USD $150,000.00 in an amount to be proven at trial, including allowable legal interest 0
`
`the sum according to proof;
`
`2.
`
`For a constructive trust to be imposed on all wrongful gains, profits an
`
`advantages as proven herein;
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`For costs of suit herein;
`
`For allowable attorney fees to the extent permitted by law;
`
`For an accounting;
`
`For prejudgment interest to the extent provided by law;
`
`For an award of punitive damages in an amount sufficient
`
`to punish
`
`Defendants according to their wealth and assets and the reprehensibility of their conduct,
`
`and to deter Defendants from repeating such conduct in the future.
`
`8.
`
`For such other and further relief as the Court deems proper.
`
`Dated: January 25, 2017
`
`
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`10
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`11
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`12
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`13
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`14
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`15
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`Respectfully submitted,
`
`ABWTELLP
`By: WW
`
`Charles M. Coate, Esq.
`Attorneys for Plaintiffs Richard Breakspear and
`BreakNite, Inc.
`
`13
`
`COMPLAINT
`
`
`
`1101!1.111-8
`
`16
`
`17
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`18
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`19
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`20
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`21
`
`22
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`
`
`
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`
`

`

`U
`
`DEMAND FOR JURY TRIAL
`
`Plaintiffs demand a jury trial on all issues so triable.
`
`Dated: January 25, 2017
`
`Respectfully submitted,
`
`ABRAMS COATE LLP
`
`Maj/afar
`
`
`
`Charles M. Coate, Esra.
`Attorneys for Plaintif '5 Richard Breakspear and
`BreakNite, Inc.
`
`
`
`10
`
`11
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`12
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`13
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`14
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`15
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`16
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`17
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`l4
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`COMPLAINT
`
`20
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`21
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`22
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`
`
`
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`1111187
`£1131
`
`

`

`3Sum$3..»
`
`EXHIBIT A
`
`
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`

`

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`LIBEIiZIIB
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`

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`1' fimugnu-shy'a-n'fidra-{wéflJ-wah
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`
`
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`
`
`
`
`
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`ans-noon.vo‘sa'aam'901gum"Emmano»
`
`
`l'!E1$906.32
`
`
`ébEU-nsh‘ISEL'I‘IE'I
`
`
`Studio Equipment Divided
`
`Larry Gear
`
`Couch - $400 (owe 200)
`
`Rack - $300 (owe 150]
`
`Big Knob - $300 (owe 300]
`
`Folkmk Instruments $1.650 (owe 825)
`
`Shure SM57 - $100 (owe 50)
`
`Furman Power Conditioner - $120 [owe 120)
`
`L Owes = $1,645
`
`Reg Gear
`
`Roll Seaboard Rise - $600 (-300)
`
`Auratone Speakers $480 (-240)
`
`L Owes = $1,105
`
`xmN-)
`‘r-’
`
`£187.!
`
`
`
`

`

`

`

`
`
`
`
`
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`QHSQhwmww
`
`EXHIBIT B
`
`
`
`

`

`
`
`UNANIMOUS CORSENT OEDIRECTORS
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`BmékNité INC.
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