Hergott's Declaration In Support of Preliminary Injunction
William K. Vogeler SBN 147445
Gruenbeck & Vogeler
Six Venture, Suite 270
Irvine, Calif. 92618
Phone: 949.453.1874
Fax: 949.453.1875
Attorneys for Plaintiffs
HERGOTT PRODUCTIONS, INC.
MUFFIN CLUB ENTERTAINMENT, INC.
And JAMES HERGOTT
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
HERGOTT PRODUCTIONS, INC., a California corporation; MUFFIN CLUB
ENTERTAINMENT, INC., a California corporation; and JAMES HERGOTT, an
individual,
Plaintiffs,
vs.
IMPERIA ENTERTAINMENT, INC.; a Nevada corporation; IMPERIA
INTERNATIONAL DISTRIBUTION, INC., a Nevada corporation; MULLER MEDIA,
INC., a Nevada corporation; NEVER SUBMIT, LLC., a Nevada limited
liability company; KENNETH EADE, an individual; and DOES 1 through
10,
Defendants. )
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))))))))))))) Case No.: SACV07-553 DOC (MLGx)
DECLARATION OF JAMES HERGOTT IN SUPPORT OF REPLY TO OPPOSITION TO
MOTION FOR PRELIMINARY INJUNCTION
DATE: June 12, 2007
TIME: 10:30 a.m.
PLACE: Dept. 9D
I, JAMES HERGOTT, declare:
1. I am a named plaintiff in the above-captioned matter. I know the
facts set forth in this declaration are true of my own knowledge,
except those facts stated upon information and belief, and I believe
those facts to be true. If called upon, I would testify competently to
these facts.
2. I wrote and developed the original movie script called "Never
Submit" (hereafter "Original Script") over years. In the original
version of my script, I used the working title "King Without a Crown."
3. As I completed each version, I registered it with the Writer's
Guild of America. I registered the latest version of the Original
Script with the U.S. Copyright Office on March 30, 2007.
4. I obtained a federal copyright for my Original Script because
Kenneth Eade and his company Imperia Entertainment, Inc. terminated my
contract to direct a movie based on the Original Script, and I feared
they were going to use it without my permission. I am informed and
believe that I had to register my Original Script with the U.S.
Copyright Office before I could seek legal protection in the federal
courts.
5. After filing my copyright complaint in this case, I gained
possession of a copy of my Original Script that Mr. Eade and his
companies have been using to produce a movie called "Never Submit." I
received the copy from a member of the cast. (See the copy,
hereinafter referred to as "the Copy," attached Exhibit A.)
6. I have compared the Copy to my Original Script, and the Copy
contains exactly the same story that I wrote: it is an inspirational
story about a young, mixed martial arts fighter who learns that
revenge in the ring is not a worthy prize. (See the Original Script
and copyright registration attached together as Exhibit A to the
Declaration of James Hergott in Support of Motion for Preliminary
Injunction.)
7. However, the Copy contains additional material for a character
that I created for the Original Script. The difference is that the
Copy changes the name to a Russian name and includes more dialogue for
the character.
8. I am informed and believe that the character name was changed and
dialogue added in the Copy because Mr. Eade has cast his wife Agata
Gavoto in the role, and he wanted to give her more lines than in the
Original Script. Indeed, I believe Mr. Eade terminated my director's
contract because I did not want to cast his wife for the role in the
Original Script.
9. In addition, the Copy has modified the names of certain
characters. For example, the Original Script's character names for
"Don Eden" and "Marcus Taylor" have been changed in the Copy to "Jack
Eden" and "Bob Marcus."
10. Other than the character names and the additional dialogue for
Mr. Eade's wife, the Copy is virtually the same as the Original
Script. Most of the Copy is a verbatim copy of the Original Script. To
illustrate the similarities, I have highlighted in orange on the Copy
all the material that was taken from my Original Script.
11. I also have examined the purported copyright registration that
Mr. Eade submitted in opposition to my motion for preliminary
injunction in this case. I am informed and believe that his purported
registration is not bona fide because it is not listed in the U.S.
Copyright Office's database, which I accessed on the Internet on June
7, 2007. Only my copyright registration is listed on the website. (See
print-out of Search Records Results for "Never Submit" from the U.S.
Copyright Office database attached as Exhibit B.)
12. Mr. Eade has not been truthful in his purported claim to a
copyright in this case. In Mr. Eade's declaration in opposition, he
admits that he lied about changes to the dialogue in my Original
Script. He states at paragraph 14 of his declaration that he and his
wife made the changes, but in his correspondence he falsely stated
that another scriptwriter made the changes. (See email dated Feb. 20,
2007, attached as Exhibit C.)
12. In addition to this false claim, Mr. Eade has misrepresented that
he is the sole author of the script. In his declaration, Mr. Eade
states in paragraph 6 that he "rewrote the entire script." Then in
paragraph 14, Mr. Eade declares that he and Agata Gotova "rewrote all
the dialogue in the script."
13. Yet in the Internet Movie Database, which is reportedly the
largest database with information about movies, Mr. Eade has listed
himself and Don Dunn as the authors of the script. (See IMDB printout
attached as Exhibit D.)
14. To add to the confusion, Mr. Eade and his companies have continued
to trade on my good name without my permission to promote the movie.
As set forth in my declaration in support of this motion for
preliminary injunction, Mr. Eade and his companies have persisted in
using my name in association with their activities even after I
resigned as president of Imperia and after they terminated me as
director of the movie.
15. I am informed and believe that they have continued this pattern of
deception to promote stock sales in Imperia Entertainment, Inc.,
Imperia Distribution, Inc., Muller Media, Inc. and membership units in
Never Submit, LLC. I believe this is fraud on the public and
particularly shareholders because Mr. Eade knows that I am the author
of the Original Script and that he is not entitled to used it.
Moreover, I am informed and believe that none of these entities is
qualified to do business in California, where Mr. Eade has conducted
all of his businesses.
16. This concerns me because I recently received an email from an
investor, who asked whether I was still president of Imperia because
he wanted to know whom to serve with a lawsuit. I am informed and
believe that other shareholders of Imperia are considering legal
action against Mr. Eade and his companies, and I want no part of it.
17. One investor, Richard Moore, told me and my lawyer that Mr. Eade
still owed him $60,000 on a personal loan. Dr. Moore also told me that
Mr. Eade, who is an attorney, once took $200,000 of Dr. Moore's money
out of his attorney-client trust account without informing him. (See
email dated June 7, 2007, attached as Exhibit E.)
18. As for my Original Script, Mr. Eade has acknowledged in
correspondence and by contract that I am the author. As recently as
Feb. 16, 2007, (nine days before his purported copyright application)
Mr. Eade said in an email to me that my story "would not be fucked
with at all. The story is gold." (See email dated Feb. 16, 2007,
attached as Exhibit F.)
19. Mr Eade said in another email four days later that my story had
not been changed at all, despite his deceptive claim that he had
submitted it to a scriptwriter. "I told him not to change your story
(which he did not, one bit.)" (See email attached as Exhibit C
referenced in paragraph 12 above.)
20. Although Mr. Eade had suggested I work with a scriptwriter to
improve the dialogue, I wrote virtually every word of the Original
Script.
21. By the Writer/Director's Agreement dated Jan. 3, 2007, Mr. Eade
also acknowledged my rights as the author of the Original Script. The
contract provides that Imperia would pay me to direct the movie and to
use my Original Script "in exchange for all the right, title and
interest to the story and the Script." The contract also states that
"all rights to the story, script and name, 'Never Submit,'" would
revert to me if Imperia did not begin production within 12 months. The
contract further provides that I retained "the rights to any sequel
motion picture," but Imperia would have right of first refusal to
negotiate for any sequel. (Italics added here for emphasis. See
Writer/Director's Agreement attached as Exhibit G.)
22. In other words, Mr. Eade and his companies knowingly contracted
for the rights to my Original Script. But, I am informed and believe,
they lost any rights to my Original Script when they terminated my
services as director.
23. Through my attorney at the time, I communicated my position in
this regard to Mr. Eade. I demanded that Mr. Eade reinstate me as
director or that the Writer/Director's Agreement was rescinded and my
Original Script and all rights reverted to me. (See demand letter
dated April 4, 2007, attached as Exhibit H.)
24. Because Mr. Eade has continued to use my Original Script without
regard to my rights, I have sought the court's intervention. Among
other concerns, I am suffering irreparable harm because Mr. Eade and
his companies have taken control of my intellectual property and they
apparently intend to continue using it without my permission.
25. I invested a significant part of my life developing my Original
Script, and I am powerless to stop Mr. Eade and his companies from
exploiting my work. In the process, they are depriving me of my
artistic rights to the Original Script as a director. Many of the
elements of the Original Script are based on my childhood memories,
romantic relationships and feelings about deceased family members.
Many of the scenes are based on deep emotional values in my life. If
they are allowed to continue to using my Original Script, I will have
lost all creative control of a work that I have developed over the
past decade.
26. I am also asking the court to stop Mr. Eade and his companies from
using my Original Script because I have never wavered in my belief and
desire that I would direct the film based upon my Original Script,
which would include a credit "A Film by James Hergott." I would never
have agreed to sell my Original Script for money alone.
27. And I do not believe Mr. Eade or his companies will fairly
compensate me for my work. For example, the Writer/Director's
Agreement provides that Mr. Eade and his companies pay me a flat fee
of $35,000 for directing services "in guaranteed compensation, payable
weekly upon commencement of 'hard' pre production, through principal
photography." Although production apparently started in March,
according to Mr. Eade's declaration, they have not paid me any money
for directing services or to use my Original Script.
28. In fact, I resigned as president of Imperia Entertainment, Inc.
because I had not been paid under a separate executive agreement with
the company for nearly half a year. I am informed and believe Mr. Eade
and his companies do not have the money to pay me or their other debts
as the come due.
29. As set forth in Mr. Eade's declaration, he owes $107,000 in unpaid
production expenses. In addition, he states, his companies are
obligated to pay contracts totaling more than $100,000. These
obligations do not include approximately $60,000 a former client
loaned him; $25,000 in service fees he owes my company; and $4,500 he
owes a former producer. (See Declaration of Cindy Ortiz.)
30. If the court concludes that I am entitled to injunctive relief in
this case, I ask that the court not impose a bond to cover Mr. Eade's
past due obligations of nearly $300,000. And although Mr. Eade claims
he will lose $400,000 in rebates if the injunction is granted, I am
informed and believe that the rebates would be granted in the form of
tax credits only if Mr. Eade and his companies qualified for them.
31. I have reviewed the qualifications required for the rebates on the
Missouri Film Commission's website, and I do not believe Mr. Eade and
his companies can qualify for the tax credits. Among other
requirements, the companies would have to spend at least $800,000 on
the production in Missouri and they would have to be located in the
state for at least 180 days. Moreover, the commission must be able to
verify all the expenditures before the credits may be applied. (See
print-out from Missouri Film Commission website attached as Exhibit
I.)
32. According to Mr. Eade's declaration, his production company has
been in Missouri about 60 days, has spent $239,000 on the movie and is
in debt more than $200,000. He does not state whether these expenses
were incurred in Missouri, but I am informed and believe that all of
the main cast members are not Missouri residents.
33. For some reason, Mr. Eade's proposed budget is not attached to his
declaration but to the unsworn memorandum of points and authorities
submitted by his lawyer. In any case, it appears to me that Mr. Eade
and his companies will not qualify for tax credits from the Missouri
Film Commission.
34. For these reasons, I ask the court to grant my request for
preliminary injunction and not to post a bond to cover Mr. Eade's
operating losses. Significantly, Mr. Eade and his companies apparently
incurred their losses after my lawyer demanded that they stop using my
Original Script.
35. Having worked for Mr. Eade, I am informed and believe that he has
made little money on his movies other than by promoting the stock in
his companies. His first movie "Fallacy" was never completed, and his
recently completed movie "Say It in Russian" has made no money.
36. As a struggling writer and director, I ask the court not to order
a large bond in this case. If anything, I ask the court to base any
bond on Mr. Eade's past productions rather than his speculations about
"Never Submit." If appropriate, I ask the court to order no bond
because Mr. Eade and his companies have taken my Original Script, paid
me nothing for it and have not paid me for my executive services for
more than half a year.
37. I declare under penalty of perjury under the laws of the United
States of America and the State of California that the foregoing is
true and correct.
Dated: June ___, 2007
___________________________________
JAMES HERGOTT
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