Motion For Preliminary Injunction Denied In “Never Submit” Case
CORONA DEL MAR, Calif., June 14, 2007 – Hergott Productions, Inc./Muffin Club Entertainment Inc. President James Hergott announced today that Judge David O Carter has denied the motion for preliminaryinjunction.
Hergott comments, “I believe when you battle, rather in the ring, in the courtroom etc, that you should fight your hardest for what you believe in, but I also believe in conducting yourself with class and when the round is done, you accept the situation and not be a sore loser or a poor winner. Mr. Eade has sent me multiple taunting emails since this motion was denied and to me that is a reflection of his character. I am not a sore loser and accept the judge’s decision in this matter and will proceed on with the lawsuit. I am glad this chapter is closed, and I have no regrets about fighting for my rights in this matter. I have a number of projects moving forward and will now have the time to devote to them. I want to thank everyone who hasstood by me; I have very much appreciated all of your support. I lost this round and have accepted it and look forward to focusing on the future and my next project.”
This however does not stop our lawsuit from moving forward. The judge and defendants have agreed that Mr. Hergott is the creator, author and copyright holder of “Never Submit” but that Mr. Hergott assigned hisrights to the defendant in a contract.
We believe in court we will be able to prove the contract is void, and then we will seek a permanent injunction after completion of filming. Mr. Hergott comments, “The judge stated to me in court that if we do get a preliminary injunction, be careful you don’t win the battle but lose the war. I believe that we have lost the battle but will win the war.”
In trial Hergott will seek to void this contract on a number of grounds including the following:
In this case, the Defendants argue that Mr. Hergott could not direct the movie because of his nationality. But at the time Mr. Hergott entered into the Writer/Director’s Agreement, he had no reason to know that his nationality would be an issue and it was a basic assumption that he would direct the movie based upon his Original Script. So if he was in fact removed as director because of his nationality, thenthe parties were under a mistake of law that made performance impracticable and rendered the contract void. 1. Under Section 152 of the Restatement, a contract is voidable if “at the time a contract is made both parties made an erroneous, material assumption. Moreover, the question of impracticability orimpossibility of performance is a matter of law to be decided by the court. Monroe v. Oakland Unified School Dist., (1981) 114 Cal. App. 3d804, 813. 2. In addition, a contract by a corporation doing business in California while that corporation has failed to perform its franchise tax obligations is voidable at the option of any party to the contract, other than the delinquent taxpayer. Cal. Rev. & Tax Code Sec. 23304. The contract is voidable even though the corporation’sprivileges have not been suspended or forfeited by the Secretary of State. White Dragon Productions, Inc. v. Performance Guarantees, Inc.,(1987) 196 Cal. App. 3d 163, 171. 3. In this case, Imperia Entertainment, Inc. was not legally qualified to do business in California at the time it entered the Writer/Director’s Agreement. In their opposition, Defendants completely ignore this allegation as set forth in the motion andcomplaint. 4. Accordingly, the Plaintiffs contend the Writer/Director’s Agreement is void and does not as a matter of law justify the Defendants’ taking Mr. Hergott’s Original Script in violation of his copyright.
ABOUT JAMES HERGOTT
James Hergott was born in Cornwall, Ontario in 1976. Always an imaginative spirit, Hergott’s film career began in high school at age thirteen when he got his first home video camera. His cast and crew were comprised of other kids in his neighborhood. Though Hergott struggled with a learning disability in his early years, he was found to be of superior intellectual caliber with an escalated sense of ingenuity and creativity. While in college at York University, Hergott started his own business, a 1-900 job line servicing all of Canada. His new venture skyrocketed, and he even turned his dorm room into his corporate headquarters, but he never lost his true passion for filmmaking. In 1999, his biggest break yet came when he metHollywood producer Tarquin Gotch at the Toronto Film Festival. The two formed an instant friendship and working relationship. Gotch was so impressed with Hergott’s tenacity and love of filmmaking that he tookhim under his tutelage. Together they developed the Showtime biopic “Call Me Donald” on real estate mogul Donald Trump. The collaboration garnered national media attention for Hergott in the industrycornerstone Variety which reported “Young Buck, Plays Trump Card” in their April 1999 issue. The Don himself also praised Hergott’s work and in a personal letter to the young filmmaker, Mr. Trump wrote that he was “extremely talented” and wished him the best in his “burgeoning career.” Hergott also went on to co-write the feature film “Brothers” with Gotch, which is scheduled to begin production in Canada in early2008. The partnership led to the co-founding of Steinberg Gotch Entertainment with Hergott, Gotch and famous sports agent Leigh Steinberg. In 2004, Hergott went solo with the production anddirection of his first feature film “All That I Need.” The film debuted at the Cannes International Film Festival Market in 2005 as part of a roster of films presented by a Beverly Hills production company. Following the success of the film at Cannes, executivesdecided to offer Hergott the presidency of the company, a challenge he eagerly accepted. In this position, he was able to secure a limited theatrical release of “All That I Need” with the Regal/UA Theatrechain that exhibited the film on screens across the country. Hergott has also been featured in over 200 media outlets throughout the U.S. and Canada as well as a number of national publications includingIndie Slate and Create Magazines.