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Email: ckavens@enensteinlaw.com
ENENSTEIN RIBAKOFF LAVINA & PHAM
SEP 03 2015
r, Executive Officer/Clerk
Fax: (310)496-1930
Attorneys for Plaintiff
^^
,., Deputy
Judi Lara
Drew Newman
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v.
CASE NO.
COMPLAINT FOR:
1. BREACH OF PARTNERSHIP
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AGREEMENT
2. BREACH OF THE IMPLIED
Defendants.
3. PARTNERSHIP DISSOLUTION
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4. ACCOUNTING
5. BREACH OF FIDUCIARY DUTY
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6. DECLARATORY RELIEF
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DEMAND FOR JURY TRIAL
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COMPLAINT
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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
2.
The true names and capacities of Defendants sued herein as DOES 1 through 20,
inclusive, are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.
Plaintiffwill amend this Complaint when their true names and capacities are ascertained. Plaintiff
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is informed and believes and thereon alleges that each of the fictitiously-named Defendants is
responsible in some manner for the occurrences herein alleged, and is liable on the claims
hereinafter set forth.
3.
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Defendants and each of them, including DOES 1 through 20, are collectively
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referred to herein as "Defendants." References hereafter made to any one Defendant shall be
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deemed to refer to and include each of the other Defendants, as well as the fictitiously-named
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Defendants sued as DOES I through 20, unless the context indicates otherwise.
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
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4.
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Plaintiff, Tolliver, and Grayson Kessenich ("Kessenich") formed Ives the Band
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(the "Band") in 2005. The Band has described itself as an "adventure rock" band and was
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partnership agreement to govern the Band. At that time, there were six members of the band, but
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CO
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The partnership agreement resulted in Plaintiff, Tolliver, and Kessenich being able
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to open a checking account at Bank of America. This account was used to write checks for the
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partnership.
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COMPLAINT
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
was a common cause, and that they were acting in goodfaith. Plaintiffand Tolliver both referred
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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
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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.
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As of approximately 2008, Kessenich left the Band, and has not been an active
In 2008, Plaintiff created a Facebook page for the Band. Bryce Newman managed
In 2009, the members of the Band at the time released an album titled "The
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
As of 2010, Plaintiff and Tolliver were the only persons with their names on the
In 2010, Bryce Newman created a Twitter account for the Band. Since 2010,
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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.
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. The Band members at
this time were Plaintiff, Tolliver, Bryce Newman, and Kyle Moore.
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The Album is at yet unreleased and is titled "The Fighters (a.k.a. Rio Grande)."
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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 and do a radio
interview.
24.
The agreement between the Band and Riley was an oral agreement.
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25.
If the Band cannot perform the shows in the oral agreement, Plaintiffis informed
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and believes that the partnership is potentially exposed to claims for the cost of the recording time
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as a partnership expense.
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As the Band cannot perform the shows, the Partnership is potentially exposed to
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On March 3, 2014, the Band signed a "Work-For-Hire Agreement" with Bob Rosa
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for "professional engineering (mixing) services." This contract was made between Bob Rosa for
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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.
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In May 21, 2014, the Band sent an email to Kyle Moore regarding his exit from
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the band. That email was sent from the email address ivesmusic@gmail.com and was signed by
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Bryce Newman, Plaintiff, and Tolliver. In that email, under the heading of "Song Rights" the
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band members stated "The partners of Ives did indeed agree at the beginning of the writing
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process of Rio Grande to grant an equal split of the remaining credit (left after any additional
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writers) between the active participants of the band at that point. In addition, the partnersof Ives
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also awarded you the same benefits to the songs appearing on The Incredible Story of Mr Birch
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after the album was completed. All songs on both of these albums have already been registered at
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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
In 2014, the Band renovated its website. The Band moved the website to a new
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hosting platform, Squarespace. Plaintiff put the website together for the Band. Plaintiff arranged
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The Band's "one sheet" from 2014 indicates that the Band "is currently
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independently operated." The contact for the band is listed as Plaintiff. The Band's website is
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listed as www.ivestheband.com.
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35.
Tolliver has not performed any obligations of the Band since his dissociation in
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December 2014.
36.
In December 2014, when Tolliver dissociated from the Band, he left a variety of
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equipment belonging to the Band in the trailer the Band used. That trailer belonged to Plaintiff
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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
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unable to perform its obligations under the oral agreement with Riley. As a direct result of
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Tolliver's dissociation from the Band, the partnership is potentially exposed to claims for the cost
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of recording fees.
in
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COMPLAINT
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expenses.
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The Band owes Plaintiffs wife, Sarah Newman, approximately $7,649.28 for
The Band owes Plaintiff at least $2,000 for expenses. Plaintiff incurred these
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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
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limited to the rights to the albums released by the Band, The Incredible Story of Mr. Birch and
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On July 20, 2015,Tolliver's counsel sent Plaintiffa letter informing him thaton
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The July 20, 2015 letter also claimed that Tolliver "ownsan exclusive right" in
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the partnership's intellectual property assets. According to Tolliver, these rights include: "the
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released album, entitled 'The Incredible Story of Mr. Birch' and the unreleased album, entitled
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'The Fighters (a.k.a. Rio Grande)' [...]; the songs; mixtapes; singles; musical compositions; key
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arts; name; trade name and trademark of the band; and all other forms of branding contained
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therein; social mediapages and handles and theircontent (including but not limited to twitter,
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Facebook, Instagram, MySpace, etc.); websites, URL, domain nameand other intellectual
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property assets." Tolliver claims this exclusive right "pursuant to 17 U.S. Code Section 106 (the
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The July 20, 2015 letter also claimed Tolliver has a right in the name of the band
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"Ives" and that use of the name of the band, "Ives" would constitute infringement of Tolliver's
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trademark.
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The July 20,2015 letter also claimed that use of Tolliver's name, voice, signature,
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photograph and likeness violated Section 3344 of the California Civil Code.
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COMPLAINT
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In 2007, Plaintiffand Tolliver had a written agreement that they were 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
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Tolliver's dissociation from the Band and withdrawal from the partnership
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was damaged by Tolliver's breach because the partnership is potentially exposed to claims for the
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cost of recording fees. Plaintiff has also been damaged because he cannot realize the
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Plaintiff and Tolliver entered into a contract, namely the partnership agreement.
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Plaintiffdid all of the significant things that the contract required him to do. He
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Tolliver's actions in dissociating from the Band have unfairly interfered with
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COMPLAINT
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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.
(Dissolution of Partnership)
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Tolliver's dissociation from the Band and withdrawal from the partnership
Tolliver's actions in dissociating from the Band have made it not reasonably
Under the provisions of California Corporate Code section 16801(5)(A) and (B),
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(Accounting)
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64.
As a partner, Tolliver owed a fiduciary duty of loyalty and care to his partner
partnership.
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COMPLAINT
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
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As a direct result, the partnership is potentially exposed to claims for the cost of
recording fees.
6Z.
(Declaratory Relief)
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69.
An actual controversy has arisen and now exists between Plaintiff and Tolliver
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concerning their respective rights to the Intellectual Property of the band, as well as the use of the
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name of the Band "Ives" and the right to control of the use of Tolliver's "name, voice, signature
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photograph and likeness ... including without limitation those contained in the Album and the
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71.
Plaintiff contends that the Intellectual Property created by the Band belongs to the
partnership.
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Plaintiff contendsthat the Intellectual Property belonging to the Band includes but
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are not limited to: the album "The Incredible Story of Mr. Birch"; the album "The Fighters (a.k.a.
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Rio Grande); any and all songs created by the Band; any and all mixtapes created by the Band; any
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and all singles created by the Band; any and all musical compositions created by the Band; key
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arts; the name of the Band "Ives"; trade name and trademark of the Band "Ives"; and all other
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forms of branding contained therein; social media pages and handles and theircontent created by
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the Band; the Band's website ivestheband.com. including the URL, domain name, and all content
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Plaintiff contends that, insofar as Tolliver's "name, voice, signature photograph and
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likeness" is contained in the Intellectual Property belonging to the partnership, the partnership has
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COMPLAINT
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
Tolliver's counsel sent a letter on July 20, 2015 claiming that use of the name of
the Band "Ives" is an infringement on his trademark. The letter also claims that this is unfair
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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
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A judicial declaration is therefore necessary and appropriate at this time under the
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circumstances so that the parties may ascertain their respective rights to the Intellectual Property,
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including use of the name of the Band "Ives," and the right to the use of Tolliver's "name, voice,
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PRAYER FOR RELIEF
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1.
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A.
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B.
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C.
For such other and further relief as the Court may deem just and proper.
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2.
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A.
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B.
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C.
For such other and further relief as the Court may deem just and proper.
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3.
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A.
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B.
COMPLAINT
C.
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4.
A.
For such other and further relief as the Court may deem just and proper.
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;
B.
C.
For such other and further relief as the Court may deem just and proper.
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A.
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B.
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C.
For such other and further relief as the Court may deem just and proper.
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6.
A.
For a declaration of the rights of the parties to the Intellectual Property assets of
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the Band, including the right to the name of the Band "Ives," as well as right to the
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B.
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C.
For such other and further relief as the Court may deem just and proper.
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By
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COMPLAINT
ENS, ESQ.
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COUR'FNE-MrflAVENS, ESQ.
Attorney for Plaintiff
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y?
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{
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VERIFICATION
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HI
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Iam aparty to this action. The matters stated in the foregoing documents are true ofmy
own knowledge except as to those matters which are stated on information and belief and
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Iam informed and believe and on that ground allege that the matters stated in the
The matters stated in the foregoing document are true of my own knowledge except
as to those matters which are stated on information and belief, and as to those
matters I believe them to be true.
absent from the county ofaforesaid where such attorneys have their offices and 1make
this verification for and on behalf of that party for that reason. I am informed and believe
and 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 the
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., a party to this
action, and am authorized to make this verification for and on its behalf, and Imake this
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of
Drew^New
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VERIFICATION TO COMPLAINT