Case 2:18-cv R-AS Document 21 Filed 04/16/18 Page 1 of 23 Page ID #:127. Deadline

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1 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE PAUL D. MURPHY (SBN DAVID E. ROSEN (SBN MARK J. NAGLE (SBN 00 Wilshire Boulevard, Suite 00 Santa Monica, California 00- Telephone: (0-00 Facsimile: (0 - pmurphy@murphyrosen.com drosen@murphyrosen.com mnagle@murphyrosen.com Attorneys for Defendant Morgan Spurlock and Warrior Poets Inc. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA TURNER ENTERTAINMENT NETWORKS, INC., vs. Plaintiff, MORGAN SPURLOCK, and WARRIOR POETS INC., Defendants. CASE NO. :-cv-0 R (ASx DEFENDANTS OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Date: May, Time: 0;00 a.m. Place: Courtroom 0 PRINTED ON RECYCLED PAPER

2 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: TABLE OF CONTENTS Page(s 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE I. PRELIMINARY STATEMENT... II. STATEMENT OF RELEVANT FACTS... A. Warrior Poets.... B. The Production Services Agreement.... C. Spurlock s December, Tweet.... III. ARGUMENT... A. The Legal Standard for a Preliminary Injunction.... B. TEN Has Not Established it is Likely to Succeed on the Merits.... C. TEN Has Not Established that Injunctive Relief is Necessary to Avoid... Irreparable Injury.... D. A Balance of the Hardships Weighs in Favor of Defendants.... IV. CONCLUSION... -i- PRINTED ON RECYCLED PAPER

3 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE Cases TABLE OF AUTHORITIES -ii- Page(s Caribbean Marine Services Co., Inc. v. Baldridge, F.d (th Cir...., Friends of the Wild Swan v. Weber, F.d (th Cir.... Herb Reed Enters., LLC v. Fla Entertainment Mgmt., F.d (th Cir.... IRIS Management Grp., LLC v. Malan, F.App x (th Cir. 0..., Kimber v. Grant, U.S. Dist. LEXIS (S.D. Cal. March,... Los Angeles Memorial Coliseum Comm. v. National Football League, F.d (0..., Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., F.d (th Cir Mazurek v. Armstrong, U.S., S. Ct. (... 0 National Meat Ass n v. Brown, F.d 0 (th Cir Ohio National Life Assurance Corp. v. Davis, 0 WL (C.D. Cal Perfect 0, Inc. v. Amazon, Inc., F.d 0 (th Cir Sampson v. Murray, U.S., S. Ct. (... Sanborn Mfg., Inc. v. Campbell Hausfeld/Scott Fetzer Co., F.d (th Cir.... PRINTED ON RECYCLED PAPER

4 Case :-cv-00-r-as Document Filed 0// Page of Page ID #:0 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE Sun Microsystems, Inc. v. Microsoft Corp., F.d (th Cir Thalheimer v. City of San Diego, F.d 0 (th Cir U.S.A. Express Cab, LLC v. City of San Jose, 0 U.S. Dist. LEXIS (N.D. Cal. December, 0... Winter v. NRDC, Inc., U.S. (0... -iii- PRINTED ON RECYCLED PAPER

5 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE I. PRELIMINARY STATEMENT In March, Turner Entertainment Networks, Inc. ( TEN or Turner entered into a Production Services Agreement ( Agreement with Warrior Poets, Inc. ( Warrior Poets. Pursuant to the Agreement, Warrior Poets was retained to ( produce a television series for TEN and ( furnish Morgan Spurlock (one of the producers at Warrior Poets as executive producer. In December, Spurlock tweeted a statement in which he admitted to various incidents from his past. Because of the tweet, TEN decided it no longer wanted Warrior Poets or Spurlock to be affiliated with the project. Now, without citation to any evidence and based on nothing more than the allegations of its unverified complaint, TEN seeks a preliminary injunction prohibiting Warrior Poets or Spurlock from disbursing any funds from Warrior Poets general operating account and affirmatively requiring Warrior Poets and Spurlock to pay all funds in that account to TEN. For numerous reasons, the Court should deny the motion. First, TEN necessarily did not satisfy its burden of establishing a substantial likelihood of success because it presents no evidence to support its position. It is well-settled that the allegations of an unverified complaint are insufficient to support a preliminary injunction. In any event, TEN cannot establish a substantial likelihood of success. TEN s motion is premised on the false assumption that Spurlock s tweet somehow breached the Agreement. It did not. If TEN wants to walk away from the project, so be it. But that does not mean Warrior Poets breached the Agreement. Furthermore, TEN is not entitled The Motion (p. identifies by account number the bank account it alleges upon information and belief was the separate bank account for the production. This is not accurate. The account that is the subject of this Motion is Warrior Poets general operating account. -- PRINTED ON RECYCLED PAPER

6 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE to the funds in the production account. As the Agreement makes clear, the only circumstance under which TEN is entitled to the funds in that account is if TEN exercises its right to take over the production. To date, TEN has not chosen to exercise this right. And TEN certainly is not entitled to the funds in Warrior Poets general operating account, which is what its Motion actually seeks. Second, TEN did not, and cannot, establish irreparable harm. This is a breach of contract case where the only remedy sought is readily ascertainable money damages. Financial harm is not irreparable. Though TEN argues there is real concern that Defendants will commingle and/or use the funds... in violation of the PSA, it presents absolutely no evidence whatsoever to support this assertion. Instead, this concern is alleged only upon information and belief. (Complaint,. Furthermore, the Motion argues nothing more than the possibility of irreparable harm. (Motion, p.. As the Supreme Court has made clear, a possibility of irreparable harm is never enough. Third, there is no basis to grant any relief against Spurlock. He is not a party to the Agreement. Because the only claim asserted in the complaint is for breach of a contract between TEN and Warrior Poets, injunctive relief cannot be granted against Spurlock. This is a simple breach of contract case with basic money damages at issue. It is far from the type of case in which provisional relief is appropriate. TEN s Motion is a transparent attempt to gain the upper-hand in the litigation, and granting the Motion would be akin to granting an attachment without requiring TEN to meet the high burden associated with an attachment order. Furthermore, because the Motion erroneously seeks all of the funds in Warrior Poets general operating account rather than the project s production account, granting the Motion would cripple Warrior Poets entire business operations. The Motion is devoid of evidence and unsupported by law, and should be denied. -- PRINTED ON RECYCLED PAPER

7 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE II. STATEMENT OF RELEVANT FACTS A. Warrior Poets. Warrior Poets is a New York based production studio formed in 0. Over the years, Warrior Poets has been credited with more than 0 motion picture and television productions. These projects run the gamut of subject matters. Motion picture projects include: The Greatest Movie Ever Sold; Where in the World is Osama Bin Laden?; Rats; and One Direction: This Is Us. Television projects include: 0 Days (FX; I Hart Food (Food Network; Morgan Spurlock: Inside Man (CNN; and Springfield of Dreams (Fox Sports/Fox/MLB. (Spurlock Decl.,. By, Warrior Poets employed three critically acclaimed lead staff producers: Spurlock, Matthew Galkin and Jeremy Chilnick. Spurlock is an award-winning writer, director and producer. His first film, Supersize Me, won him Best Directing honors at the Sundance Film Festival and was nominated for an Academy Award for Best Feature Documentary. Matthew Galkin has produced many documentary films and television series for Warrior Poets, including a number of award winning projects. Jeremy Chilnick is an Emmynominated writer and producer who produced and executive produced many Warrior Poets projects. (Id. at. In, Chilnick also served as the Chief Operating Officer for Warrior Poets and was primarily responsible for running the day-to-day operations of the company. He signed the Agreement at issue here on behalf of Warrior Poets and, along with the Production Manager, were the primary contacts with TEN during Warrior Poets work on the project. Though Spurlock was the Chief Executive Officer of Warrior Poets and ultimately responsible for the company and the Project, Spurlock s day-to-day focus was on the creative side of the company, not the business side. (Id. at. -- PRINTED ON RECYCLED PAPER

8 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE B. The Production Services Agreement. In March 0, TEN retained Warrior Poets to produce and executive produce a television series entitled Who Runs The World? ( the Project. The terms of the deal are set forth in a Production Services Agreement (the Agreement and Standard Terms and Conditions ( Standard Terms dated as of March, 0. (Compl., Ex. A. Though the Agreement provides that Warrior Poets will designate Spurlock to be the executive producer of the Project, Spurlock is not a party to the Agreement or the Standard Terms. Instead, both documents make clear that the only legally responsible parties are Warrior Poets Inc. ( Producer and Turner Entertainment Networks, Inc. ( Turner. Though Spurlock s signature appears at the end of the Agreement, as the notation above his signature makes clear, he signed the document solely for the purpose of acknowledging that the Agreement concerns his services and/or rights. Specifically, section of the Agreement requires that Spurlock consent to TEN s use of his name, voice, likeness and biography, and section (e of the Agreement requires that Warrior Poets make Spurlock available for various appearances at marketing events. To the extent Spurlock has any obligations under the Agreement, they are simply to offer his services as executive producer and agree to the provisions of sections (e and. The Agreement contains no morals clause. Nor does it contain any other provision that grants TEN the right to declare a default under the Agreement if TEN disapproves of prior conduct of Warrior Poets personnel. The Agreement provides that TEN will fund the Project on a mutually approved cash flow schedule. (Id. at. The Agreement contains no provision allowing TEN to demand repayment of the incremental funds provided to Warrior Poets. -- PRINTED ON RECYCLED PAPER

9 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE If TEN believes that Warrior Poets is unable to continue on the Project, the Standard Terms sets forth a very specific procedure for TEN to takeover the production: Turner shall have the right to require Producer to provide proof reasonably satisfactory to Turner that Producer has the capacity (including the financial capacity to complete and Deliver the Episodes as required hereunder. In the event Producer fails to make such satisfactory showing within the time period reasonably required by Turner..., Turner shall have the right, exercisable by written notice to Producer, to takeover production of the Series. If Turner exercises its takeover rights, Turner shall be deemed to be appointed the manager and agent of Producer for the purpose of completing such episodes and Producer shall, at Turner s request, place at Turner s disposal and under Turner s control, the production account and any and all other assets, personnel and equipment employed and used by producer.... (Standard Terms, (emphasis added. Under the Agreement and Standard Terms, the only circumstance under which TEN is entitled to take control of the Warrior Poets production account is if TEN exercises its takeover rights. To date, TEN has not exercised its takeover rights. C. Spurlock s December, Tweet. On December,, Spurlock tweeted the phrase I am Part of the Problem along with a link to a statement. In the statement, reflecting on the widespread reporting of misconduct in the entertainment industry, Spurlock wrote, I ve come to understand after months of these revelations, that I am not some innocent bystander, I am also a part of the problem. (Compl., Ex. C. He -- PRINTED ON RECYCLED PAPER

10 Case :-cv-00-r-as Document Filed 0// Page 0 of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE states that if I m going to truly represent myself as someone who has built a career on finding the truth, then it s time for me to be truthful as well. Spurlock then details three specific reasons why he is part of the problem. The first involved an incident while Spurlock was in college (he graduated from NYU in. The second involved verbal incidents with an assistant approximately eight years earlier. The third involved infidelity with former spouses and girlfriends. In the statement, Spurlock also describes his problems with alcohol abuse. Spurlock concluded by stating, I am also part of the solution. By recognizing and openly admitting what I ve done to further this terrible situation, I hope to empower the change within myself. (Id. On December,, Spurlock checked himself into a rehabilitation facility to seek treatment and therapy. Also on December, Spurlock advised Mr. Chilnick and Mr. Galkin that, while he sought treatment, he would temporarily step down from his leadership role at Warrior Poets. Spurlock remained at the rehabilitation facility for thirty days. (Spurlock Decl.,. D. TEN Suspends Production and Decides Not to Take Over the Project. On December,, based solely on Spurlock s tweet, TEN sent a letter to Warrior Poets suspending production of the Project. (Compl., Ex. D. Thereafter, TEN advised Warrior Poets that it was considering whether to exercise its takeover rights, which would allow TEN to take control of the production account. (Compl., Ex. E. To date, however, TEN has not taken over the production. The complaint does not seek completion of the production. Instead, the only relief TEN seeks for the alleged breach of contract is money damages, and the only injunctive relief sought is either a return of funds or a prohibition of use of funds. Though the Motion purports to seek a return of the funds in the Project production account, the account TEN identifies is actually Warrior Poets general operating account. -- PRINTED ON RECYCLED PAPER

11 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE III. ARGUMENT A. The Legal Standard for a Preliminary Injunction. [A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, U.S.,, S. Ct. (. This burden is correctly placed on the party seeking to demonstrate entitlement to the extraordinary remedy of a preliminary injunction at an early stage of litigation, before the defendant has had the opportunity to undertake extensive discovery or develop its defenses. Perfect 0, Inc. v. Amazon, Inc., F.d 0, (th Cir. 0. In deciding whether to grant a preliminary injunction, the Court must balance the plaintiff s likelihood of success against the relative hardships to the parties. Sun Microsystems, Inc. v. Microsoft Corp., F.d, (th Cir.. In order to prevail, plaintiff must demonstrate that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tip in his favor, and that an injunction is in the public interest. National Meat Ass n v. Brown, F.d 0, 0 (th Cir. 0 (quoting Winter v. National Res. Def. Council, Inc., S. Ct., (0. TEN has not come close to meeting its burden under this test. B. TEN Has Not Established it is Likely to Succeed on the Merits. The burden of proof at the preliminary injunction phase tracks the burden of proof at trial. Thalheimer v. City of San Diego, F.d 0, (th Cir.. This requires the moving party to present evidence sufficient to establish the likelihood of success on the merits in order to shift the burden to defendants to present contrary evidence. Id. -- PRINTED ON RECYCLED PAPER

12 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE Here, TEN necessarily has failed to meet this burden because TEN literally presents no evidence whatsoever in support of its Motion. Instead, TEN relies solely and exclusively on the bare allegations contained in its unverified complaint. A motion for preliminary injunction based on nothing more than an unverified complaint must be denied. See U.S.A. Express Cab, LLC v. City of San Jose, 0 U.S. Dist. LEXIS at * fn. (N.D. Cal. December, 0 ( an application for a temporary restraining order or preliminary injunction cannot be supported by an unverified complaint ; K- Ski Co. v. Head Ski Co., F.d 0, 0 (th Cir. ( [a] verified complaint or supporting affidavits may afford the basis for a preliminary injunction. Even if TEN had presented admissible evidence in support of its Motion, it still would be unable to establish a substantial likelihood of success. First, TEN s fundamental assumption that Spurlock s tweet breached the Agreement is false. There is nothing in the Agreement that prohibits Spurlock (or anyone else at Warrior Poets from having engaged in any particular conduct (whether appropriate or not in their pasts, and there is nothing in the Agreement that prohibits Spurlock from publicly admitting his prior conduct. If TEN does not want Spurlock to be the executive producer on the Project, or does not want Warrior Poets to provide production services, then TEN can walk away from the Project. But it does not mean Warrior Poets or Spurlock (who is not even a party to the Agreement have breached or otherwise defaulted under the Agreement. Second, the fact that Spurlock temporarily stepped down from his leadership role at Warrior Poets while he sought treatment for 0 days does not constitute a breach of the Agreement. In fact, TEN made it clear that it did not even want Spurlock to be performing any services on the production during that period of time. Third, unless and until TEN takes over the production, Warrior Poets has no obligation to return any funds to TEN or to turn the production account over -- PRINTED ON RECYCLED PAPER

13 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE to TEN. As section of the Standard Terms makes clear, these obligations only arise if Turner exercises its takeover rights. Because TEN has not taken over the production, Warrior Poets has absolutely no obligation to turn over the production account. Fourth, even if TEN could prove a breach of the Agreement, TEN does not automatically get the funds in the production account. Instead, TEN s damages are limited to what it can prove were directly and proximately caused by the alleged breach. There is nothing in the Agreement that, absent a takeover of the production, entitles TEN to a return of funds paid into the production account. And certainly there is nothing that would require Warrior Poets to turn over to TEN all of the funds in its general operating account. Fifth, there is no circumstance under which TEN can establish the likelihood of success on its breach of contract claim against Spurlock for the simple reason that Spurlock is not a party to the Agreement or the Standard Terms. Spurlock signed the Agreement not as a party, but solely for the purpose of acknowledging that the Agreement concerns his services and/or rights. In any event, even if Spurlock was deemed to be a party to the Agreement with respect to the services he was providing, Spurlock has not breached the Agreement. He never refused to serve as executive producer of the Project and his tweet did not violate any provision of the Agreement. Because TEN failed to present evidence in support of its Motion, the burden of proof never even shifted to Defendants. Even if it had, the evidence establishes that it is far from likely that TEN will succeed on the merits. As such, the Motion must be denied. C. TEN Has Not Established that Injunctive Relief is Necessary to Avoid Irreparable Injury. To establish a likelihood of irreparable harm, conclusory or speculative allegations are not enough. Herb Reed Enters., LLC v. Fla Entertainment Mgmt., -- PRINTED ON RECYCLED PAPER

14 Case :-cv-00-r-as Document Filed 0// Page of Page ID #:0 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE F.d, 0 (th Cir.. Instead, in order to prevail, TEN must establish through a specific factual showing that, absent the extraordinary relief it seeks, it will suffer serious, immediate, and irreparable injury for which there is no adequate remedy at law. Caribbean Marine Services Co., Inc. v. Baldridge, F.d, (th Cir.. TEN cannot meet this burden.. TEN Seeks Only Monetary Damages. It is well established that monetary harm alone does not constitute irreparable harm. See, e.g., Los Angeles Memorial Coliseum Comm. v. National Football League, F.d, (0 ( it is well established, however, that such monetary injury is not normally considered irreparable. As explained by the United States Supreme Court: The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended... are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Sampson v. Murray, U.S., 0, S. Ct. ( (quoting Virginia Petroleum Jobbers Association v. Federal Power Commission, F.d, (D.C. Cir.. Here, the sole and exclusive relief sought by TEN is monetary damages. Furthermore, TEN does not deny that the monetary damages it seeks are readily ascertainable. As such, TEN is not entitled to a preliminary injunction. TEN argues that it nonetheless should be granted injunctive relief because there is a serious possibility that Warrior Poets may collapse and/or have no funds to pay a judgment to TEN. (Motion, p.. This argument fails and two separate and distinct reasons. First, TEN presents absolutely no evidence whatsoever to support this assertion. Instead, the assertion is based entirely on -0- PRINTED ON RECYCLED PAPER

15 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE the conclusory and speculative allegations of its unverified complaint. Such allegations are insufficient to support a claim for preliminary injunction. See Caribbean Marine Services Co., Inc. v. Baldridge, F.d, (th Cir. ( a plaintiff seeking preliminary injunctive relief must demonstrate that it will be exposed to irreparable harm. Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction. A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief. Second, a possibility of irreparable harm is insufficient to support injunctive relief. Instead, even under the sliding scale approach, the moving party must at least establish that irreparable harm is likely. See Winter v. NRDC, Inc., U.S., (0 ( the Ninth Circuit's possibility standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. See also, Friends of the Wild Swan v. Weber, F.d, (th Cir. (after analyzing the distinction between the possibility and the likelihood of irreparable harm, the court concluded we nonetheless affirm the denial of the preliminary injunction because Wild Swan has not established a likelihood of irreparable harm. Because TEN alleges nothing more than a possibility of irreparable harm, the motion must be denied.. The Remedies Provision in the Agreement Does Not Help TEN. In its Motion, TEN suggests that the preliminary injunction sought is allowed under the Remedies provision of the Standard Terms. (Motion, p.. Not so. Section of the Standard Terms provides as follows: In the event of a breach by Turner, Producer specifically acknowledges and agrees that the damage, if any, caused -- PRINTED ON RECYCLED PAPER

16 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE thereby will not be irreparable or otherwise sufficient to entitle Producer to injunctive or other equitable relief.... Producer acknowledges that the Services to be provided by Producer hereunder are of a unique nature, that Turner may not be adequately compensated at law for any breach by Producer and that Turner shall be entitled to seek, among other remedies, injunctive relief. (Standard Terms, Compl. Ex. A,. As this provision makes clear, the right to seek injunctive relief stems from the potential irreparable harm caused because of the unique nature of the production services provided by Warrior Poets. But this lawsuit has nothing to do with protecting or enforcing these unique services. This case is about money precisely the type of remedy that the first part of section acknowledges is insufficient to support injunctive relief.. The Motion is Particularly Inappropriate Because it Seeks a Mandatory Injunction. TEN s Motion seeks a mandatory injunction. Specifically, it seeks an order that defendants are required to return the funds in the Production Bank Account to TEN, or, in the alternative, to place the funds in a secure escrow account. ([Proposed] Order. A mandatory injunction goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored. In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., F.d, - (th Cir. 0. See also, Kimber v. Grant, U.S. Dist. LEXIS, at * (S.D. Cal. March, ( [w]hen a plaintiff seeks a court order requiring another party to take affirmative action, the relief is treated as a mandatory injunction, which requires -- PRINTED ON RECYCLED PAPER

17 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE the plaintiff to establish that the law and facts clearly favor her position not simply that she is likely to succeed. Here, as explained throughout, TEN has not come close to meeting the standard for a prohibitory injunction, and it certainly cannot meet the standard for a mandatory injunction. Moreover, not only does the Motion seek a mandatory injunction, but it seeks a mandatory injunction over the wrong bank account. The account identified in the Motion is not the production account for the Project. Instead, it is Warrior Poets general operating account. (Spurlock Decl.,.. The Cases Cited by TEN are Wholly Inapposite. In support of its position, TEN cites to two cases that purport to have granted a preliminary injunction requiring defendants to deposit funds into escrow: Ohio National Life Assurance Corp. v. Davis, 0 WL (C.D. Cal. 0 and IRIS Management Grp., LLC v. Malan, F.App x (th Cir. 0. In one instance, TEN simply misstates the case. In the other instance, the case is based on Nevada law and has no application here. TEN describes the Ohio National holding as granting injunction and requiring defendant to deposit premium payments received in escrow. (Motion, p.. This is demonstrably false. In fact, the injunction did not place any affirmative requirement on defendant. To the contrary, the injunction allowed plaintiff (the moving party to deposit premium payments it received with the clerk of the court. Furthermore, the motion in that case (a matter involving life insurance fraud was unopposed, and the court specifically found irreparable harm because calculating damages based on the speculative nature of a person s death will be difficult to ascertain. (Id. at *-0. The IRIS Management case (which contains very little legal or factual analysis was decided under Nevada law. Nevada, unlike California, has a statute that specifically allows a preliminary injunction to be issued when it is -- PRINTED ON RECYCLED PAPER

18 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE established that defendant is doing or threatens, or is about to do some act tending to render the judgment ineffectual. (Id. at -. Though the court does not describe what evidence was presented in support of the motion for preliminary injunction, the court concluded that sufficient evidence was presented to meet the requirements contained in the Nevada preliminary injunction statute. (Id. These cases have no application here. D. A Balance of the Hardships Weighs in Favor of Defendants. Traditional standards for granting a preliminary injunction impose a duty on the court to balance the interests of all parties and weigh the damage to each, mindful of the moving party's burden to show the possibility of irreparable injury to itself and the probability of success on the merits. Los Angeles Memorial Coliseum Com. v. National Football League, supra, F.d at. Here, the balancing of the interests strongly weighs against TEN. TEN has filed a simple breach of contract action in which it seeks only monetary damages that are readily ascertainable. Injunctive relief is not appropriate in such cases. Though TEN argues that there is real concern that Defendants will commingle and/or use the funds... in violation of the PSA, they present absolutely no evidence to support this assertion. Furthermore, TEN s Motion is premised on the false assumption that Spurlock s tweet somehow breached the Agreement, which it clearly did not. In fact, there is little, if anything, that weighs in favor of granting injunctive relief. On the other hand, there are strong reasons to deny injunctive relief. First and foremost, TEN has wholly failed to meet its burden of establishing irreparable harm and the likelihood of success on the merits by far the most critical factors in the analysis. Second, granting the relief requested is tantamount to granting TEN an attachment on Warrior Poets bank account without requiring TEN to meet the -- PRINTED ON RECYCLED PAPER

19 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE standard for an attachment. Similarly, granting the injunction effectively grants TEN the relief it would seek at the trial on the merits. Such injunctions are disfavored and are subject to a heightened standard. See, e.g., Sanborn Mfg., Inc. v. Campbell Hausfeld/Scott Fetzer Co., F.d, (th Cir.. Third, locking the production account will prejudice Warrior Poets. The mere fact that TEN has chosen not to proceed with the Project does not mean that Warrior Poets should be precluded from paying expenses that have been incurred in connection with the Project. Fourth, if TEN wants to get control of the production account, the Agreement gives it a mechanism to do so, by taking over the production. If TEN chooses not to take over the production, this Court should not grant it benefits to which TEN is not entitled under the Agreement. Fifth, though the Motion purports to seek return of the funds in the Project production account, it actually seeks disgorgement of all funds in Warrior Poets operating account. If granted, this would cripple Warrior Poets business operations. Sixth, granting an injunction against Spurlock is patently unfair as he is not even a party to the Agreement, and has no financial obligations under the Agreement. Motion. /// /// /// /// /// /// /// A balancing of the equities weighs strongly in favor of denying the -- PRINTED ON RECYCLED PAPER

20 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court deny the motion for preliminary injunction, in its entirety. DATED: April, Respectfully Submitted, By: /s/ David E. Rosen Paul D. Murphy David E. Rosen Mark J. Nagle Attorneys for Defendants Morgan Spurlock and Warrior Poets Inc. -- PRINTED ON RECYCLED PAPER

21 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE DECLARATION OF MORGAN SPURLOCK I, Morgan Spurlock, hereby declare as follows:. I am a party to this action. I am also an officer and director of Warrior Poets Inc. ( Warrior Poets. I make this declaration in opposition to Turner Entertainment Networks, Inc. s ( TEN motion for preliminary injunction. The facts set forth herein are personally known by me to be true and correct and if called upon as a witness, I would competently testify thereto.. Warrior Poets is a New York based production studio formed in 0. Over the years, Warrior Poets has been credited with more than 0 motion picture and television productions. These projects run the gamut of subject matters. Motion pictures include: The Greatest Movie Ever Sold; Where in the World is Osama Bin Laden?; Rats; and One Direction: This Is Us. Television projects include: 0 Days (FX; I Hart Food (Food Network; Morgan Spurlock: Inside Man (CNN; and Springfield of Dreams (Fox Sports/Fox/MLB.. By, Warrior Poets employed three lead staff producers: me, Matthew Galkin and Jeremy Chilnick. I am a writer, director and producer. My first film, Supersize Me, won me Best Directing honors at the Sundance Film Festival and was nominated for an Academy Award for Best Feature Documentary. Matthew Galkin has produced many documentary films and television series for Warrior Poets, including a number of award winning projects. Jeremy Chilnick is an Emmy-nominated writer and producer who produced and executive produced many Warrior Poets projects.. In, Mr. Chilnick also served as the Chief Operating Officer for Warrior Poets and was primarily responsible for running the day-to-day operations of the company. Though I was the Chief Executive Officer of Warrior Poets and ultimately responsible for the company, my day-to-day focus was on the creative side of the company, not the business side. -- PRINTED ON RECYCLED PAPER

22 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 00 WILSHIRE BOULEVARD, SUITE 00 SANTA MONICA, CA 00- TELEPHONE 0--00; FACSIMILE In March, TEN retained Warrior Poets to produce and executive produce a television series entitled Who Runs The World? ( the Project. The terms of the deal are set forth in a Production Services Agreement (the Agreement. The Agreement provides that Warrior Poets will furnish me as executive producer of the Project. However, I am not a party to the Agreement. I signed the document solely for the purpose of acknowledging that the Agreement concerns my services and/or rights. This was necessary because the Agreement requires me to consent to TEN s use of my name, voice, likeness and biography, and requires Warrior Poets to make me available for various appearances at marketing events.. Consistent with my overall role in Warrior Poets, my work on the Project focused on the creative side, not the business side. I was not involved in the process of determining how the money funded by TEN was spent or how those funds were accounted for. I did not sign any checks in connection with the Project. I have not received any compensation for my work on the Project. (My compensation would have come at the end of the Project.. On December,, I tweeted the phrase I am Part of the Problem along with a link to a statement that I wrote. A copy of that statement is attached as Exhibit C to the complaint. On December,, I checked myself into a rehabilitation facility to seeking treatment and therapy. Also on December, I advised Mr. Chilnick and Mr. Galkin that I would be temporarily stepping down from my leadership role at Warrior Poets while I sought treatment. I remained at the rehabilitation facility for thirty days. I have since returned to work for Warrior Poets. /// /// /// /// -- PRINTED ON RECYCLED PAPER

23 Case :-cv-00-r-as Document Filed 0// Page of Page ID #: 0 N a ~ m M ~,-N~ W"'tQ...J --.-.,... ' (' z U;;; ~ LLJO;g~ U a:: 0 /J O~ctf 0::: ~ <( 0 ~ :,oa O-M a.. m~ w ~ 0 a:::~~~ ::Ull--..- ~ZM :E ~;]j ~ g ~ - ~ w r 0. In the Motion, TEN identifies by account number the bank account it asserts is the Project's Production Bank Account. I have been told by Warrior Poets' accountant that, in fact, the account identified is not the Production Bank Account, but is actually Warrior Poets' general operating account. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this h day of April,, at New York, New York. -- PRINTED ON RECYCLED PAPER OPPOSITION TO MOTION FOR PRELlMINARY INJUNCTION