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I Michael W, Prozan, CSB # 124893 #i$

M.y General Counsel Group
1
851 N. San Mateo Drive Suite C
San Mateo, CA 94401 -2283
3 Tel: 650 348-1500 lo'
Faxl 650 348-1543 F
{0
4
;
Attarney for Kevin W.iclc
tr.
5

SUPEITiOR COURT OF THE STATE OF CALIFORNIA

9

COLNTY OF SANTA CLARA

10

I(r:vin Wick Case No: 1-15-CV287CI52 |

i1
LNLIMITED COMPLAiNT
t2 SECOND AMENDED AND RESTATED
AFK Broadcast Networks, LLC;
13 Bradiy Fry; BREACH OF CONTRACT I(WRITTEN);
David Fry II; BREACH OF THE COVENANT OF GOOD
14
Cognitive Gaming LLC; and FAITH AND FATR DEALN\.IG
DOES 1-22
15 BREACH OF FiDUC]ARY:DUTY

16
Defendants ACCOL]NTING ,,

FRAUD )

17
IMPLIED IN FACT CONTTTACT
IR BY FAX
t9

PARTIES
i
2A
THE
i
LI
1, )

Plaintiff Kevin Wiek (rPlainti{f) is an individ,ual who currrently rnaintains his

22 i

legal residence in San Mateo County, Califoruia,

I
1-)
2. On information and belief; Defendant AFK Esporrs LLC (',AF'(,) is a California
24
limited liabrlity company with its prinoipai piace of business in Santa Clara
County, California.

Sgcoun AMENDED A.ND REs.IATED coMpLArNT

 .

On information and belief, Defendant AFI( Broadcast Networks

LLC fllda Norlli
I 3,
('NACL') is a California limited liability company with its
2 Ameriean Challenger League LLC

J
principal place of business in Santa Clara County, Calif'or:nia, I

is an individual who, on information ancl belief resides in

4
4, David Fry, II Santa
i
5
Clara County Califbrnia and who, on information ald belief, is a managing,member of NACL
6
and asted as a manager of AFi( on behalf of }{ACL for some of the time period during which the
,?
l

eveRts giving dse to the causes of action staled herein took piace (*David'i). Aecorcling to a
8

document reviewecl by the Plaintiffl David describes himself as a "businessltlan . , . raised by 3

9

sh:'ewd a**holes." As of April 1 g, 2|l6,his twitter tagline reads, "My attorney says that I am
t0

11
too evil."

11 5. Bradley Fly is an individual and brother of David Fr"y, u,ho Qn information and

t3 belief, resides in Santa Clara County California ("Brad") and who, on information and belief, is a

l4 managiug membor of NACL and was the inirial manager of AFK acting on behalf of NACL.
15
According to a document reviewed by the Plaintif{ David describes Brad as "dumb", "an idiot",
16
and a "dumbat*" who "teils everyone to shut up when he cant make a good decision or take
17 i

responsibiiity" fsic]. He fudher says tirat Brad'Just twists everything" and ihas no clue as to
18
whathes doing" [sic]. ,

I9
6. On information and belief, Cognitive Gaming LLC is an entity owned by David
20

al
and or Brad ('CG") and engages in competitive online gaming.

22 UIITTD PAITTIES

z-1
7 ' David Santos is a business associate of Brad and David, on infonnatiol and belief

24 is a mernber of NACL, and participated in the day to clay operations of AFK.

Srcoruo AMENDED AND REsTA"TED coMpLArNT

 I JURISDICTION AND YENUE ,.

2 B, Ju-r'isdiction is proper in this Coul because substantially ali o1'acts giving rise to
J
thr: causes of action herein complained occurred in Santa Clara County and,on infonnation and
4
belief, DEFENDANTS reside in Santa Clara County,
5

6
g. On or about June 16,2014, Plaintiff and his colleague Tyier Peckham forrned
7 l

AFI( for the purpose of owning, opelating, and profiting fi:om a physical location where patrons
d

could come together and palticipate in online gaming.

9

10
10. In the fall of 2014, NACL negotiated an agreement with ,AFK, Piaintitf and
i

1l Peckham where AFK would expand its business to include food and b"r.rug. service (the

t, *Gamer Lounge"); NACL wouid invest Tlu'ee Hundred'Ihousand Dollars ($300,000) for what
i

13 would ultimately be a Slq/o proflts interest; Plaintiff would contribute his half of the business
I

14 plan for what would ultimately be a24J% interest; ald Tyler Peskham would contribute his half
'ls l

of the business plan for what would. ultimately be243% interest. i

t6
11, On information and belief, Bmd, David, and NACL never intsnded to honor this
l7 :

agreement but intended to rnisappropriate funds from revenues of the Garner Lounge for their
lo
own benefit and blur tlie line between AFK ancl NACL so that they could claim that AFK did not
19 :

ow:n its business.

20
12. Specifically, in David's own words witten later, "if brad structured this like I
21

wlote him . . , kevin and tyler have notiing."

22

/.J
i 3. On information and belief, two ways which they planned to aocomplish this were:

24 a. By a creating a series of bank acoounts where some of the funds genemted

,< fi'om the operation of the AFI( business would be d"eposited direct to accounts

-3-
Srcolro AMENDED AND RESTATED coMpLArN,t"
 1
of NACL, Bmd, or David (or entities controlled by them), would never be

2
deposited into an AFI( bank account, zmd would not be counted as revenues
3
on the AFK financial statements, l

4
b" By putting assets of AFK, such as the lease ancl liquor license, in their names
5 i

to make it easier to breach the operating agreemeRt, exert conhol over AFK,
6 :

ancl simply convefi operations of AFK to NACL, or athirdparty entity without

7
purchasing the assets of AFK frorn AFK.
8 I

9
14. Ernployees were all hired by AFI(, i

l0
15. The parties memorjalized ihis agreement in an Amended and,Restated Operating

l1 Agreemerrt dated Novenibel 25, 20!4 astrue and correct copy hereof is attached as Exhibit A
i

12 (the "Operating Agreement"). For a discussion of the Capital Contlibutions cliscussed in

:

13 Paragraph l0, See Section 2.1 of the0perating Agreement.

14 15. Section 1.2 of the Operating Agreernent limited the activities of AFK to "the

15
oprrration of an electronic garning business with food and beverage servicos at 163 W. Santa
16
Clara Street, San Jose, CA."
1n
tt
17, Brad, Peckham, and Plaintiff were the initial Managers,: See Operating
l8
Agreement Seetion 1,7 (i).
19

18' On information ancl belief, later', Davicl took over for. Brad in the capacity of
20

21
Marnager of AFK. i

19'
i

22
Section 4.1i of the Operating Agleement balred NACL fiom operatilg a

cornpetitive facitity within five miles of 163 West Santa Ciara Street,
23 San Jose; CA.

24 2A' Accolding to a later statement by Davi.d, so unimportanl was the operating

i

75 agroelllent to him that he did not bothel to readl it, In hi$

words, 'ono I lavent read sh*1.,,

-4-
SecoNn A.MENDED AND E EsTATED coMpLAtNT
 I 2t. On infolmation and belief, Brad lacked experience in opelating or managing a

2 retstaurarlt.

J
22. Plaintif,f took on the role of General Manager of the Gamer tr"ounge, assuming a
i
4
fuil time employment position which was independent of his responsibilities as a Managing
5
Member, ,

6
23. Despite this lack of experience, Brad admitted in a convelsation which took place
7
on February 4,2016, that he prepared the financial projections for the operation of the Gamer
o
o :

Lounge.
9

10
24. As a Manager of AFI(, Plaintiff is entitled "to oversee the preparation and
:

l1 nraintenance of the Company's [AFK's] books and records and ali reports relating to the

bursiness of the Cornpany. . ," Operating Agreement Section 4.2(a).

:

13 25, On inforrnation and belief, arnong other issues, tiris attempt to divert fiom AFK to

t4 fol the conkol of Blad and David

revenues as set forth in tll3a inciuded, but may uot have been
15
Iimited to,:
16
Putting checks for payments for private parlies, which could be in the tens
t7
ofthousands of dollars per party, directly into the accounts of one of the
18
Defendants or an entity they controlied so that such deposits would not be
19 :

reeorded in the b.ank statements available to Plaintiff and, therefore, would

20

21
not be recorded on the finafioial statements of AFK.
,

b. Characterizing a high percentage of expenses on the financial statements

22

23
as "mi$ceilaneous" to attemptto conceal imploper divers,ion of funcls.
:

24 Tal<ing over operation of the Gamer Lounge and puttingrcash receipts irrto

25 their own bank accounts or accounts controiled by them.

-5-
SscoNo AMENDED AND REST'ATED coMpLArNT
 I cl. Denying Plaintiff timely access rp tlie books and records of AFK,

2
26. In May, 2015, David purported to teiminate the services of the piaintiff as
I

J
Gr:neral Manager dernoted hiur to be,"Events and sociai Media
Manager,,,
4
27, On information and belief, Defendants had no plan to secure a different General
t-
5
Manager because one or more of them r.vanted AFK to f7il,
6
28, i

In May,2015, David wrote to Santos,'iI want it to fail I want tliis to fail now
7
Thats how f*cking underappreciated
8
lll am, . .,,

9
29' In ihe same collvelsation, Santos writes]to Davici, "Kevin is isetting up his ggls
lo
arrj ammo against us. . .Brad literally broke the AFK pperating agreement, and created
l0 bland
i

11
new accounts without the majority votes of 'Iyler, I(ejrin and Brad. Took the money without
I

12 saying anything. Tlley have a case ther.e.,, I

i3

14

15

10
General Manager for some period of time thereafter.
t7
32. On information and beiiej, Defendants i]ad no plan to recruit a new
GM and
18
instead purported to rermi,ate piaintiff as nothing ,ror. t{u, rank bullying.
t9
33.
i

on information, without secudng a licei]se or agreement to pay AFK, NACL

20 I

changed irs name from North Anrerican clrailenger

21 L"ut.,. LLC to AFK Bloadcast Networks
LLC to capitalize on tire goodwiil of the AFK name
22 bj, secunng name recognition tying the
broadcast network to the operating entity
23 without paymen therefore,

)n

25

SEcoNo AMENDED AND REsTATBd coupr-ewr

I
 i

David as Managing Members of NACL and AFK took manY

:

I 34. Brad ancl ot'

i

AilK inciuding, but not limited to,, ott information ancl

2 inrproper actions to give them control over

3
belief:
4
a. Putting the iease for the premises in a confusing and wlol1g name' On
l
5
information and belief, the name was North American Challenger League
6 i

LLC dba AF'I( Esports when, in t'act "AFK Esporls" was nqt a dba of NACL'
7 i

b. Putting the liquor license in the name of NACL' :

c, Putting insurance in the name of NACL,

9

35,
.

In May, 2015, David. admittecl this plan writing, ". . . if bradstructured this like
10
I

1t daveandIwrotehimtoyeaNagokevinandtyierhavenothing.,,,,

LZ 36, And despite the plain language of the op:erating agreement rnaking iegally ciear'

13 tha.t even their atternpts to claim ownership failed, writing:

14 David; re.member 4 months ago where i kept raging at brad to figure out r,vhere

15
afk begins l

16
Santos: ya. .

i
L/
David: and the nacl ends this is u,hy Rightihere once again
18 i

Santos: It's all a convoluted mess right now.

19

SO.
:

David: I TOLD YOU ALL ;

20

21
Santos: I know you did. l

37, Plaintiff confronted David about a nurnber of issues, inclucling, but not limited to:
22

,/.3
Not putting the lease, liquol license and insurance in the name,of AFK.

24 b. Having multiple bank accounts to which Plaintiffdid not have:viewing rights.

25 using company f,unds for urr.reiated businpss i,ter.ests of the Frys.

:-

-7-
STcoNn AMENDED AND REsTATED CoMPLAINT
 l d'Startingrnu1tipieot1rercompanieswiththesimi1arna1.nss.

2 38. David responded by blaming Brad ancl simply taking over the AFK declaling that
a

3
none of the original members "ownecl" the cornpany any more, that "ownerless" cornpany would

4 ,

be
o'wou.nd
down" and its assets absolbed by its "parent'" .

39. NACL and David refused the requests of Plaintilf for f-rnancial statements and
6
related financial information.
1

40, NACL paid only Ninety One Thousand Dollars ($91,000) of :the Tlilee Hundred
8

lLereto,
i

Thousand ($300,000) capital commiturent. See Exhibit B

9 I

10
41. In a conversation which took place between Brad ancl the Plaintiff on February 4,

11
2016,Brad admitted making only $92,000 of the required $300,000 investme4t.

12 42" On information and belief, begirming in April,2015, Defendant NACL

:
as

13 opr:rated by Brad and David, starled treating funds of AFK as its orvn, The following table (witit
I

14 supporting documentation as Exhibit C) lists improper ituklrg of AFK funds I:y one or more
15
De.fendauts known to date:

16
)ffi,ivi
11 4/t0/15 Check #1087 $10,000 Brad Frv Cash "tralsfer"
4/28/15 Check 1126
18
$35,000 Brad {rr "payback and Food/Rent, r1o
supporting documentation.
t9 6t1t1s Check1232 $ 10,000 Davidlsantos Even though payroll taxes
payable to were priid :direct by AFI(,
20
NACI, "payroll taxes."
/.t 6/t6/1s Check 1303 $8,000 David Sanlos Even though payroll taxes were
payablerto paid direct {:y AFK, "payroll
?2 NACI, :
taxes," .

6/23/ts Check 1355 $3,600 David gantos Rent on personal apartment

23
rr/6/ts Cash withdrawal $5,000 Tolbe No known purpose ("NKp,,)
an
LA determfned.
l1/13/1s Cash withdrawal $5,000 TBD
25 NKP
11/30/r5 Cash withdrawal $8,000 TBD NI(P

Srcor.ro AMENDED AND RESTATED coMplArNT

 i

3
43. While the $35,000 check has notation that it is for food and rent, Plaintiff has
l

4
never seen any supporting docuurentation to confirm this claim and believes instead that it was a

5 distlibution.

6 44. On infolmatioir and beliel the checks set forth in \42 wcl'e non pr.o rata

7 distribution in breach of Section 3.7 of the Operating Agreement.

8
45. In a conversation which took place between Br:ad and the Plaintiff on February 4,
9
2016,Bradadrnittedimpropcr.takingoffuirc]sfromAFK.
10
46' on information and belief David Santos took the follor,ving actions at the expense
:
1l
of AFK for the benefit of CG frorn Mid May, 2015 Forwa*l;
1l
a. Paid rent for the Heroes of the storm Team sponsored by
'cG lHeroes of the
13

14
Storm being an oniine game). l

15
Allowed the cG Heroes of the stornt team to practics around the clock

l6 wiflrout payment in a room of AFK which normalry ,"rr*,ro,

$500 per. hour
I

17 which could not be lented because of use by the CG team. i

18 Ailowed the cG Heroes of the stotm. team to eat for.fi.ee

at the expense of
19 AFK,
)(\
47 ' Because Plaintiff has been denied access to the financial books and recorcls of
l

AFK and because some funcls may have been

deposited directly into accounts not belonging to
22
AFK without ever having been deposited into
an AFK account, he canr:.ot know what othel non
)1
pro rata distributions have been nrade
without a fuil accounting.
z.+
48' on September 4,2015' Plaintiff rvas finally.terminated
as an employee of AFK in

tice states as fbllows:

-9"
SpcoNo AMENDED AND REsTATED CoMPLAINT
 1 Kevin is believed to be not acting in the best interests of the company by tnembers of the
ownership team. Tlueatening legal action against the company, resulting in removai
2
fi'om day to day operations. See Exhibit D.

J
49. On information and beliel once Plaintiff was terminated,rl)efendants tooic all
4
cash receipts and deposited them into NACL or other non AFK bank accounts,
J
50. Section 13.2 ofthe Operating Agreement entitles a Mernber,to recover litigation
6
expenses as defined in connection with any action to enforce rights under the Operating
7
A6;reement, l

9
51, In the late fall of 2015, Defeldant NACL simpiy took over the operations and

balk accounts of AFK.

10

l1 52, In November, 2015, Defendant NACL finally provided plaintiff with financial

72 staternents. See Exhibit E herelo. i

53.
1

1J Tn*ese financial statements sufller from numelons cleficiencies, as follows:

14 a, Setterely understated revenue, When compared to bank statements that are avaiiabtre

15
to Plaintiff, the financial statements show a severe understatement of revenue.
l6
Plaintiff reviewed fte bank statements solely
for deposits front u.edit card charges
17
fi'om the poinl; of sale system and excluding cash cleposits and private parties.
lo
Plaintjff found revenues for the period fi'om January L,2015-october.3l,2015
19
to be
Seven Hundred Seventy Five Thousand Two Hundred
1n Fifty Four dollars and frfty two
cents ($775,254,52), By comparison, the financial statements provideci by NACL
21

which ptesumabie included all revenues, including

22 cash sales, and private parties
indicated revenues of Four lJundre<l Thirty
23 Nine Thousancl Two Hundred sixty six
24 dollars and folty nine cents ($4'39,266.49),
Aecordingly the financial statements
25 reported Three Hunclred Thirty Five Thousand
Nine Hr.rndred Eighty Four doliars and

-10-
Seco]'In AMENDED AND REsTATED C0MPLAINT
 I three cents ($335,984.03) less than the point of sale oniy deposits:in the bank account,

2
. even though the financial statements had two additional income streams to be
J
inciuded as t'eveflues (cash sales and private parties), ,

4
b. Concealing funds transfers. The financial statements presented more in

"uncategorized expenses" than in sales.

6

c. Attentpts to conceal additional ret)ew.te s*edm, T'he Expense seotion shows a

7
negative expellse of hundreels of lhousands of dollars of "Comnissions and Fees."
o

As a negative expep.ses, this representeci revenue ancl should have,been categorizecl as

I :

such. Furlher, Plaintiff does not believe that these htmdrecls of thousands of doliars
10

l1 were ever deposited into a bank account to whioh Plaintiff had access,
i

12 54. Effective January 7,2016, NACL took all of AFK employees as their own, See

l3 Exhibit F. ,

14 55. In a eonversation which took place on February 4, 2076, among Plaintiff and Brad

and David, Brad:

16
a. Adrnitted that the Gamer Lounge glossed Two Milli.on ($2,000,000) in its first year of
17
operation.
18
b. Triod to get Plaintiff to pay money fbr the lease and liquor license which Brad
19
irnploperly put in the name of NACL.
20

a1
c- Admitted that the purpose of the operating agreement was to "protect" Brad.
LI

d. Admitted that no other agreement existed between the parties,

22

23
e. stated that the value of the NACL pofion of,the ongoing entity was $3.4 miliion and

24 demanded a payment of that much for NACL to transfer its portion to Plaintiff.

25 Aclmitting diverting revenue from liquor sales to other bank aocoul$s,

SpCONo AMENDED AND RESTATED CoMPLAINT

 I o
b' Admitting diverting eash sales other bank accounts,
)
h. Admitted that AFK was basically a ruse to make Plaintiff disposable so NACL could
3
keep the Gamer Lounge.
4
i. Adrnitted to co mingling of funds.
5
56, In the February 4,Zlrc convemation, Bracl inviteci Plaintifl to:sue him personally
6
for, among other things, violating the terms of the operating agreerlent barring NACL from
7
operatinga1ikefacilitywithinfivemi1es.oftheGamerLounge,
8

F'IRST CAUSE OF ACTION

9

10
BITEACH OF CONTRACT

11
(NACL)

12 57. PLAINTF'F realleges and incotporates by reference paraglaphs i-56 of this

I

13

14 58, As set forth above, Plaintiff entered into a contract with NACLiand AFK.
,< i

59. Plaintiff performed ail or Substantially all obligations required to be performed of

16
hirn under the agreement or:such performance has been exeused.
.1,1

60. All conditions precedent to the performance of the eontract by AFK and NACL
i8
were performed or excused,
t9
61. NACL breached the contract by, including, but not lirnited to,:
20

Failing ro make the ful1 Tiuee Hundred rhousancl Dollar ($300,000)

21

capital contribution in breach of section 2. 1 of the operating Agreement.

22

L3
b' Taking non pro rata distributions in violation Section 3.7 of the Operating
I

24 Agreement.

25

secoNo AMENDED o*L'*urrorED coMpLAiNr

 1 c" Denying Plaintiff the ability to parlicipate in overseeing the preparation of

2 the books and lecorcls of AFK and of access to a1i such books and recolds in

3
violation of Section 4,2(a) of the O1:erating Agreettrent,
4
d, Talcing controi of the Gamer Lounge without propel" approvals'
5
e, Operating the Garner Lounge in violation of the telritorial restlictions of
6
the Operating Agreement,
7
62. Plaintiffhas been harmed as a result of these breaches.
8

o
SECOND CAUSE OF ACTION

IU
BREACH OF THE COVENANT OF GOOD FAITH ANT} FAII{:NNAIIXC
.

i1

12

13 63' PLAINTFF i'ealleges and incorporates by reference paragr:aphs 1-56 of this

14 complaint as though fully set forth herein,

IJ
64. As set fortir above, plaintiff enter.ed into a contract with NACL,
16
65' Piaintiff pelformed all or substantialiy all obligations leqnired to be performed
of
1l
him rurder the agreement or such performa:rce iras been excused.
i8
66. A11 co,ditions for the perforrnanee of the contract by NACL harr 6ss,,.r.d
or wer.e
19
excused.
2A

1_t
6l ' Brad and hIACL have unfairly interfered with the
right of the plaintiff to secure
the benefits of AFK by taking or failing to take a vaiety of actions, including,
22 but irot limjted to,
the followirrg:
23

a' changing the name of NACL to AFI( Broadcast

Networks, LLC to capitalize on
:

25 the name recognition of AFJ( without proper

payfielrt therefore.

STcoNo AMENDED AND RESTATED CoMPLAINT

 :

i b. Putting licenses criticai to the company in the narne of NACL and other third parties,

3
c. Diverting revenues of AFI( to other accomts to deny Plaintiff the profits of AFI( to
4

5
68, Plaintiff has been harrned as a. result ofthis wlongful
Q',
interference,
6

7
BRtrACH OF F',TDUCIARY DUTY CAL.C'ORP,CO DEgl 7 7,04.$9
8

9
,

10
69, PLAINTFF lealleges and incorporates by reference paragraphs 1-58 of this
,

11
complainl as thor.rgh fuliy set forth herein :

l2 70. As set forth above, Brad Fry was a managel' ancl NACL was a mernber of AFK,
:

l2 71. Brad Fry and NACL owed a fiducialy duty to AFI( and to Plaintiff as a rrember

1d
of AFK, including, but not limited to:

15
a. The duty to account for and hold property as a tlustee of AFI(.
i6

l1
c. Refrain from competing with AFK; and I

18
d. Refraj.n fiom engaging in inteutional misconduct or a vioiation of the law,
10
na
IL, As mole particularly described above, Defenclants violated all of the foregoing
20
duties.
)1

/ -). Plaintiff has been harmed as a result of the breaches of fiducialy duty described

herein.

?4

25

1A

sECoND AMENDED ori,IrrrorED coMpLArNr

 I FOURTT{ CAI]SE OF' ACTIOI{

2
ACCOUNTII\G
J
(BRAD FRY AND NACL) .

4
74. PLAINTFF realleges and incorporates by reference paragraphs i-58 of this
5
complaint as though fu1ly set foth herein
6
75, As set forih above, Brad Fry was a manager and NACL was a:member of AFK.
7

76. Brad Fry and NACL owed a fiducialy duty to AFI( and to Plaintiff as a member
8

of AFK, and, violated duties by co mingling fi:nds.

9

l0
77 , Plaintiff has been harmed as a lesult of the actions described ir,r this conrplaint and

1l cannot aseertain the fi:.ll amount because of the co mingiing of funds of the Defendants.

1Z FIFTII CA.USE OF ACTION

13 F'RAUD
.
i
14 (BRAD FRY, DAVID FRY,A.ND NACL) :

15
(PROMTSE WITH NO TNTENTION TO PERFORM)
16
78, PLAINTFF realleges and incorporates by lefbrence paragraphs 1-58 of this
17 :

complaint as though fully set forth herein.

1B
' 79. De endants knowingly made a material promise with no interition to perform in
19
connection with the negotiation and execution of the Operating Agreement,,includirig, but not
lU
.

limited to, the fact that they had no intontion of honoring the agreement.
ZI

22
80. Defendants made these promises lmowingly and with tlie intent to ind.uce Plaintiff

23
to provide his business plan and services to AFl( so thai they could divert funcls for their own rise

24 and take controi of AFK without proper compensation to plaintiff.

25

Secouo AMENDED AND REsTATED coMpLArNT

 1 81. Plaintiff aotually and juslifiably relied on their prom,ise to honor the operating
2
agreement in both deciding to enter into the Operating Agleement and toiprovide selvices to

AFK.
4

5
82. Plaintiff has been halmed for the foregoing which was caused by the fbrgoing
6
plomises of tire Defendants. ,

7
83. The Defendants were guilty of rnalice, fi.aud and oppression,
8

SIXT}{ CAUSE OF ACTION

9

10
IMPLIED IN FACT CONTRACT

11 PLAINTIF'F AS TFIIRD PARTY BENEFICIARY

12 COGNITIVE GAMING, LL,C

13 57, ,

PLAiNTFF realleges and incorporates by reference paraglaphs 1-61 of this

14 complaint as flrough fully set fbrlh herein,

15
58' As set forth above, cG took goods, se,vices and funds fi.om AFI(.
t6
59. CG knew that these goods selvices and funds were valuable and needed to be paid
17
for and did not pay for them.
1R

60. An implied in fact contract was created for Cogntive Gamingrto pay for,goocls,
19
services and loans fi.om AFI(.
1n

a1
62' As a member of AFK and party to its operating agreement, Defe,ndant was a third

party beneficiary of this agreement and has been <lamagecl

')') by the conduct of cG.

23

)A

25

STCONo AMENIDED AND RESTATED CoMPLAINT

 I WHEREFORE, TI-IE PLAINTIFFS PRAY FOR THE FOI-LOWING;
a
l. On the first through third, fifth anci sixth causes of action, payment for his
3
distributive shares ofproceeds wrongfully taken from AFi( i

4
2. On the fourth cause of action, m acsounting to determine the amounts owed
5
pursuant to the other causes of action
6

4. Litigation Expenses as defined in the Operating Agreement and Costs,

8

9
5, Interest (inoludingprejudgment p-ul's-uant to Civil Code Sectio n3257(a)and post

10
judgment), l

11
6' Suoh other relief to which the Plaintiff may be entitled by law or as the Court may

t2 deem just and proper.

13 Jvne 2,2016

14

15

16

17
C o uns e l for P I aintiff Kevin
l8 Wiclc .

t9

20

?l

22

)7

a,1

25

SecoNo AMENDED AND RESTATED coMpLArNT