Electronically Filed by Superior Court of California, County of Orange, 08/03/2021 11:51:00 AM.

30-2021-01207553-CU-BC-CJC - ROA # 146 - DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Clerk.

1 BRAD D. BRIAN (State Bar No. 79001)

brad.brian@mto.com
2 E. MARTIN ESTRADA (State Bar No. 223802)
martin.estrada@mto.com
3 JOHN L. SCHWAB (State Bar No. 301386)
john.schwab@mto.com
4 JOHN B. MAJOR (State Bar. No. 306416)
john.major@mto.com
5 MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, Fiftieth Floor
6 Los Angeles, California 90071-3426
Telephone: (213) 683-9100
7 Facsimile: (213) 687-3702

8 Attorneys for Proposed Intervenor

TGB PROMOTIONS, LLC
9

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA

11 COUNTY OF ORANGE

12

13 PARADIGM SPORTS MANAGEMENT, Case No. 30-2021-01207553-CU-BC-CJC

LLC,
14
Plaintiff, INTERVENOR TGB PROMOTIONS,
15 LLC’S OPPOSITION TO PLAINTIFF’S
vs. MOTION FOR PRELIMINARY
16 INJUNCTION
EMMANUEL DAPIDRAN PACQUIAO; [Declaration of Tom Brown filed concurrently
17 and DOES 1-50, inclusive, herewith]

18 Defendants. Judge: Hon. Walter P. Schwarm

Date: August 6, 2021
19 Time: 11 a.m.
Dept.: C19
20

21 Action Filed: June 25, 2021

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Case No. 30-2021-01207553-CU-BC-CJC

TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 TABLE OF CONTENTS
2 Page
3 OPPOSITION.....................................................................................................................................4

4 I. THE BALANCE OF HARDSHIPS FORECLOSE PLAINTIFF’S DRASTIC AND

UNSUPPORTED REQUEST FOR INJUNCTIVE RELIEF.................................................4
5
A. Numerous Innocent Parties Would Be Grievously Harmed By Plaintiff’s
6 Proposed Injunction....................................................................................................4

7 B. The Harms to Innocent Parties Clearly Outweigh Any Harm to Plaintiff .................7

8 II. PLAINTIFF’S ATTACK ON TGB’S AGREEMENT WITH PACQUIAO,

CONTAINED ONLY IN AN ATTORNEY DECLARATION, IS WITHOUT
9 MERIT ...................................................................................................................................9

10 A. Plaintiff Lacks Standing to Challenge the Existence or Enforceability of the

TGB Agreement .......................................................................................................10
11
B. The Undisputed Evidence Is That the TGB Agreement Predates Any
12 Agreement with PSM and Covers the Pacquiao/Spence Bout .................................11

13 III. CONCLUSION ....................................................................................................................13

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2 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 TABLE OF AUTHORITIES
2 Page(s)
3 STATE CASES

4 Bleavins v. Demarest
(2011) 196 Cal.App.4th 1533 .....................................................................................................10
5
Doe v. Yim
6
(2020) 55 Cal.App.5th 573 .........................................................................................................10
7
Guthrey v. State of California
8 (1998) 63 Cal.App.4th 1108 .........................................................................................................9

9 Hatchwell v. Blue Shield of California

(1988) 198 Cal.App.3d 1027 ......................................................................................................10
10
Henderson v. Drake
11 (1953) 42 Cal.2d 1 ......................................................................................................................12
12
Kennedy v. Elridge
13 (2011) 201 Cal.App.4th 1197 .....................................................................................................10

14 Killian v. Millard
(1991) 228 Cal.App.3d 1601 ......................................................................................................10
15
In re Marriage of Heggie
16 (2002) 99 Cal.App.4th 28 ...........................................................................................................10
17
Socialist Workers etc. Committee v. Brown
18 (1975) 53 Cal.App.3d 879 ............................................................................................................4

19 Thayer Plymouth Center, Inc. v. Chrysler Motors Corp.

(1967) 255 Cal.App.2d 300 ..........................................................................................................8
20
Travelers Ins. Co. v. Workmen’s Compensation Appeals Bd.
21 (1967) 68 Cal.2d 7 ......................................................................................................................12
22 Vo v. City of Garden Grove

23 (2004) 115 Cal.App.4th 425 .........................................................................................................4

24 ENCYCLOPEDIAS AND PRACTICE GUIDES

25 2B Cal.Jur.3d (2021) Affidavits and Declarations, § 18 ....................................................................9

26 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2021 update) ¶ 9:49.5 ............................................................................................9, 10, 13
27

28
3 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 OPPOSITION
2 Plaintiff Paradigm Sports Management LLC (“Plaintiff”)’s Motion for a Preliminary

3 Injunction should be denied. Plaintiff’s proposed injunction, which seeks to have Defendant

4 Emmanuel Dapidran Pacquiao (“Pacquiao”) “barred from participating in his scheduled August

5 21, 2021, bout in Las Vegas against Errol Spence, Jr.,” would needlessly cause substantial and

6 irreparable harm to numerous innocent third parties. And if Plaintiff could prove its claims, it

7 would have an adequate damages option against Pacquiao that renders such drastic preliminary

8 relief unnecessary.

9 Intervenor TGB Promotions, LLC (“TGB”) 1 joins in all of the arguments set forth in the

10 Opposition of Pacquiao, as well as in Pacquiao’s evidentiary objections. Pursuant to the Court’s

11 guidance, TGB will not reiterate those arguments here. Instead, TGB addresses two key issues

12 that directly concern TGB and other innocent parties: (1) the harm that will be suffered by TGB,

13 Errol Spence, Jr. (“Spence”), and numerous other third parties if the injunction is ordered, and (2)

14 Plaintiff’s procedurally improper and substantively meritless attempt to challenge the validity and

15 existence of the contractual relationship between TGB and Pacquiao.

16 I. THE BALANCE OF HARDSHIPS FORECLOSE PLAINTIFF’S DRASTIC AND

UNSUPPORTED REQUEST FOR INJUNCTIVE RELIEF
17
A. Numerous Innocent Parties Would Be Grievously Harmed By Plaintiff’s
18 Proposed Injunction
19 It is black letter law that, before any preliminary injunction may be granted, the Court must

20 weigh the harms to Pacquiao and other parties if the injunction is ordered against the harm to

21 Plaintiff if its Motion is denied. (See, e.g., Socialist Workers etc. Committee v. Brown (1975) 53

22 Cal.App.3d 879, 888 [“[T]he court considers whether a greater injury will result to the defendant

23 (and to third persons) from granting the injunction or to the plaintiff from refusing it.”]; see also

24 Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 435 [similar].)

25

26

27 1
This morning, August 3, 2021, the Court granted TGB’s Motion to Intervene. TGB therefore
28 files this Opposition pursuant to the briefing schedule set on July 30, 2021.
4 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 Plaintiff focuses only on harm to Pacquiao (Plaintiff’s Motion for a Preliminary Injunction

2 (“Mot.”) at p. 17), and ignores that this balancing test requires the Court to consider potential

3 harms to third parties and the public at large. Plaintiff does so for an obvious reason: the harms to

4 other parties, including TGB and Spence, would be severe and irreparable, and would therefore

5 easily outweigh the harm Plaintiff suggests it will face without an injunction.

6 First, as detailed in the accompanying declaration of Tom Brown (“Brown Decl.”), TGB

7 itself would suffer significant monetary and reputational harm. Plaintiff asks this Court to, in

8 essence, cancel a major sports event—encompassing numerous moving parts, such as other boxing

9 matches, sponsorships and other businesses, spectators, hospitality and service workers, and other

10 economic benefits—that is scheduled to take place in less than three weeks. If the event were

11 cancelled, TGB would lose millions of dollars in sunk costs alone, not including the revenue it

12 expects to receive if this major boxing event proceeds. (Brown Decl. ¶ 31.) Those sunk costs are

13 a direct result of the enormous lengths TGB has gone to in order to make the August 21 event a

14 reality. Among other things, TGB evaluated potential sites for the event, eventually chose the T-

15 Mobile Arena in Las Vegas, and entered into agreements pursuant to that choice; worked with its

16 broadcast partner, Fox Sports, to prepare the pay-per-view telecast; negotiated agreements with

17 foreign distributors; solicited sponsors and advertisers and entered into agreements with several

18 businesses to promote and market the event; identified and made deals with sixteen other fighters
19 to fill out the “undercard” of the event; and arranged for sanctioning by the state athletic

20 commission and boxing sanctioning organizations. (Brown Decl. ¶ 29.) All of that work and all

21 of that money would be lost if the Pacquiao-Spence match were prohibited from proceeding on

22 August 21. (Brown Decl. ¶ 30.)

23 Moreover, TGB would suffer substantial harm to its reputation. TGB and Tom Brown

24 have long-standing and respected reputations in boxing, reputations that were built over decades.

25 (Brown Decl. ¶ 32.) Those reputations are premised on the idea that TGB can make major fights

26 happen and promote them successfully. (Ibid.) If the match is stopped, that reputation would

27 suffer. Boxers expect TGB to successfully stage major events for them. (Ibid.) Spence, and the

28 dozens of other boxers currently under contract with TGB, could view the last-minute dissolution
5 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 of the August 21 Pacquiao-Spence match, and the event as a whole, as TGB’s failure. (Ibid) As

2 result, some or all of those fighters could consider terminating or not renewing their contracts with

3 TGB. Other fighters could be reluctant to work with TGB in the future if the August 21 Pacquiao-

4 Spence match were cancelled and those fighters similarly viewed that cancellation as a failure on

5 TGB’s part. (Ibid.)

6 Second, Spence would suffer substantial monetary harm and be prevented from continuing

7 to grow his reputation as one of the world’s best fighters. Spence is one of the best boxers in the

8 sport today. (Brown Decl. ¶ 33.) He is undefeated and in the prime of his career. (Ibid.) The

9 August 21 Pacquiao-Spence match is a marquee bout that would enhance Spence’s ability to earn

10 significantly more money in future bouts. (Ibid.) Spence has spent substantial time training for

11 the August 21 Pacquiao-Spence match, and incurred the costs that attach to training for a major

12 bout. (Ibid.)

13 In agreeing to fight Pacquiao, Spence has passed up other potential fights, and the revenue

14 that would be associated with those bouts. (Id. ¶ 34.) At this late date, just weeks before August

15 21, it would be impossible for TGB to find an adequate replacement for Pacquiao. (Id. ¶ 33.)

16 TGB could not arrange for a new bout for Spence until December 2021 at the absolute earliest.

17 More likely, any Spence fight would not occur until 2022 and would necessarily be against a

18 fighter with less stature than Pacquiao. (Ibid.) Any such fight would be for a considerably smaller
19 purse than what Spence would stand to receive from the August 21 Pacquiao-Spence match. (Id.

20 ¶ 35.) And, if the August 21 Pacquiao-Spence match does not happen now, Spence will likely

21 never get the opportunity to fight Pacquiao, a legend in the sport, ever again. (Id. ¶ 36.) In short,

22 Plaintiff’s proposed injunction would deprive Spence of an irreplaceable opportunity, render all of

23 his work and expenses to date worthless, and force him to wait until next year before he can

24 continue his career by fighting another, lesser fighter.

25 Third, numerous other innocent parties would be harmed if the court were to stop the

26 August 21 Pacquiao-Spence match from going forward. To name just a few: The other 16

27 fighters on the card and their respective teams (trainers, sponsors, etc.) would lose a major payday

28 and the opportunity to gain publicity from being associated with a Pacquiao-Spence bout. (Brown
6 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 Decl. ¶ 37.) Thousands of interested spectators who have already purchased tickets to the event

2 would lose the opportunity to watch the August 21 Pacquiao-Spence match (as of last week, more

3 than 14,000 tickets had been sold and more will be sold between now and August 21). (Id. ¶ 38.)

4 TGB’s broadcast partner, Fox Sports, and other distributors, both foreign and domestic, have

5 invested time and substantial resources into promoting the fight that would be lost. (Id. ¶ 39.)

6 Sponsors and other businesses who have contracted based on the fight going forward would lose

7 the opportunities that they have worked for and expended resources on, in reliance on the event

8 going forward. (Id. ¶ 40.) Drivers, waiters, ushers, concession operators, ticketing agents,

9 security personnel, casino and hotel employees, restaurant employees, valets, police and EMT

10 workers providing services, and numerous other categories of workers would be harmed if the

11 fight is halted. (Id. ¶ 41.) And the local and state governments in Nevada will lose millions of

12 dollar in live-gate taxes and taxes from increased tourism if the fight is cancelled. (Id. ¶ 42.)

13 The severity of these harms has been increased by Plaintiff’s dilatory conduct. Plaintiff

14 has known about the August 21 Pacquiao-Spence match for months, and filed its complaint in this

15 matter more than a month ago. Yet it waited until this past Friday to file a request for a

16 preliminary injunction. While Plaintiff dallied and delayed, TGB, Spence and all of these other

17 parties continued to work towards putting on the August 21 Pacquiao-Spence match, and

18 continued to expend time, money and effort that will be lost if Plaintiff’s last-minute demand for
19 an injunction is granted.

20 B. The Harms to Innocent Parties Clearly Outweigh Any Harm to Plaintiff

21 The harms to TGB, Spence, and many others clearly outweigh the two harms Plaintiff

22 claims will occur absent an injunction. Plaintiff first claims harm to its reputation. As Pacquiao

23 has already explained, California law does not provide for a remedy, in a breach of contract case,

24 for reputational harm. (Defendant’s Opposition to Motion for Preliminary Injunction (“Pacquiao

25

26

27

28
7 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 Opp.”) at pp. 10–11.) Plaintiff’s purported harm is therefore not a recognizable injury as a matter

2 of law, and cannot provide a basis for imposing a preliminary injunction. 2

3 Next, Plaintiff says it will suffer monetary harms. The very existence of a money damages

4 remedy is, of course, a basis to deny a preliminary injunction, not to grant it. “[I]f monetary

5 damages afford adequate relief and are not extremely difficult to ascertain, an injunction cannot be

6 granted.” (Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300,

7 306.) As Pacquiao has already explained, Plaintiff here has a contractual “General Damages”

8 remedy that sets forth, in detail, the measure of money damages. (Pacquiao Opp. at p. 12.)

9 Pacquiao has also fully explained why Plaintiff’s claim that Pacquiao might “abscond” rather than

10 face a court judgment is baseless and improperly based on inadmissible argument in declarations.

11 (Id. at 16–18.) TGB would add only that Plaintiff’s inadmissible argument is also incorrect, at

12 least as to in TGB. The Burstein declaration goes on at great length about how promoters accede

13 to “unethical requests” to hide income from bouts. (Burstein Decl. ¶ 11.) TGB does not structure

14 fighter income so that most proceeds are received from non-U.S. sources. (Brown Decl. ¶ 27.) If

15 Mr. Burstein has been involved in, and therefore has personal knowledge of, such “unethical”

16 transactions, that is Mr. Burstein’s issue. But his cynical speculation simply does not apply to

17 TGB. (Ibid.)

18 Plaintiff’s Motion pretends that the only question is whether Plaintiff’s potential harm

19 outweighs the potential harm to Pacquiao. That is incorrect as a matter of established California

20 law. (See supra pp. 4–5.) What Plaintiff asks this Court to do would have a drastic negative

21 impact on TGB, Spence, and numerous other innocent parties. Those harms far outweigh

22 Plaintiff’s speculative hardships, and plainly establish that the balance of the equities cuts against

23 ordering the extraordinary relief that Plaintiff demands.

24
2
25 To the extent Plaintiff argues that its alleged reputational harm must be weighed as heavily as
TGB’s harm, discussed supra, Plaintiff is mistaken. The failure in Plaintiff’s argument is that, as
26 the party moving for preliminary relief, it must establish that it will prevail on the merits of the
claim that it alleges requires such relief. Because Plaintiff cannot, as a matter of law, recover for
27
reputational harm on a contract claim, it has no likelihood of succeeding on a demand that it be
28 recompensed for harm to its reputation based on its pleadings in this case.
8 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 II. PLAINTIFF’S ATTACK ON TGB’S AGREEMENT WITH PACQUIAO,
CONTAINED ONLY IN AN ATTORNEY DECLARATION, IS WITHOUT MERIT
2

3 As explained in detail in the accompanying Declaration of Tom Brown, and discussed

4 below, TGB Promotions entered into a multi-fight agreement with Pacquiao in 2018 and

5 subsequently amended that agreement three times (the “TGB Agreement”). The TGB Agreement

6 establishes that, contrary to Plaintiff’s allegations, Pacquiao and TGB had a contractual

7 relationship covering the Pacquiao/Spence bout and that relationship pre-existed any agreement

8 with Plaintiff. As Pacquiao has already explained, the TGB Agreement is therefore a “previous

9 contractual obligation” that, under Pacquiao’s agreement with Plaintiff, is given “priority” ahead

10 of the Pacquiao/Plaintiff agreement. (Pacquiao Opp. at pp. 5–9, 10–11.)

11 Despite the fact that the TGB Agreement is devastating to Plaintiff’s merits position and

12 was provided to Plaintiff prior to its filing of the Motion, its Motion makes no argument at all

13 about TGB, or TGB’s contractual relationship with Pacquiao. Instead, Plaintiff has chosen to

14 make those arguments in the declaration of its lead counsel, Judd Burstein. The Burstein

15 Declaration makes repeated arguments about the TGB Agreement with Pacquiao, including about

16 the meaning and applicability of the TGB Agreement (Burstein Decl. ¶¶ 7–11), all purportedly

17 based on Mr. Burstein’s “personal knowledge regarding the industry standards in professional

18 boxing” (id. ¶ 6). Those arguments, and indeed Mr. Burstein’s entire declaration, are inadmissible
19 under the rules of evidence and in violation of California’s rules of ethics—in particular, the

20 prohibition against attorneys simultaneously acting as both an advocate and witness.

21 Under the rules of evidence, the “declaration is inadmissible [because] it contains

22 argument, conclusions, and hearsay.” (2B Cal.Jur.3d (2021) Affidavits and Declarations, § 18;

23 accord, e.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119 [declaration

24 “properly excluded” because it was “based on opinion, not facts”].) Indeed, the declaration is not

25 actually a declaration at all but, rather, a memorandum-type argument labelled a declaration as a

26 “ruse to avoid page limits in a memorandum of points and authorities.” (Weil & Brown, Cal.

27 Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021 update) ¶ 9:49.5.)

28
9 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 Under the rules of ethics, the declaration is forbidden because in it, Mr. Burstein “act[s]

2 both as an advocate and a witness,” purporting to offer both “proof [and] an analysis of the proof.”

3 (Doe v. Yim (2020) 55 Cal.App.5th 573, 581–582.) Simultaneously taking both roles is forbidden

4 by the advocate-witness rule, a basic “tenet of ethics in the American legal system” that is

5 necessary for “[a]voiding a ‘[c]arnival [a]tmosphere.’” (Kennedy v. Elridge (2011) 201

6 Cal.App.4th 1197, 1208, citation omitted.) In short, by “includ[ing] argument in [his]

7 declaration[],” Mr. Burstein has violated basic rules of both evidence and ethics and made “a

8 mockery of the requirement that declarations be supported by statements made under penalty of

9 perjury.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30 fn. 3.)

10 The entire declaration—including all of its argument relating to TGB—must be

11 disregarded as contrary to the rules of evidence and ethics. Even beyond that obvious, and fatal,

12 failing, Plaintiff also lacks standing to challenge the TGB Agreement and fails to contradict the

13 undisputed evidence that the TGB Agreement predated any agreement with PSM, covers the

14 August 21 Pacquiao-Spence match, and is still in effect.

15 A. Plaintiff Lacks Standing to Challenge the Existence or Enforceability of the

TGB Agreement
16

17 Even if the Court were to permit Plaintiff’s wholly improper “ruse to avoid page limits in a

18 memorandum of points and authorities” (Weil & Brown, supra, ¶ 9:49.5.), Plaintiff would still
19 lack standing to advance the arguments in the Burstein Declaration about the TGB Agreement.

20 Plaintiff is neither a party to the TGB Agreement nor an intended beneficiary. It therefore “lacks

21 standing to assert any claim concerning the contractual relationship between” TGB and Pacquiao.

22 (Bleavins v. Demarest (2011) 196 Cal.App.4th 1533, 1542; see also Killian v. Millard (1991) 228

23 Cal.App.3d 1601, 1605 [because plaintiff “had no substantive right in the contract …. [h]e lacked

24 standing to seek to void that contract”]; Hatchwell v. Blue Shield of California (1988) 198

25 Cal.App.3d 1027, 1029 [plaintiff was “is neither a party nor an express third party beneficiary to

26 her husband's insurance contract and therefore lack[ed] standing.”].) TGB set forth this

27 established California law in its Reply in support of its Motion to Intervene, yet Plaintiff makes no

28 argument and provides no explanation why it may challenge the existence or applicability of the
10 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 TGB Agreement in this proceeding, much less raise such a challenge in the declaration of its lead

2 counsel. The arguments contained in the Burstein Declaration must be disregarded for this reason,

3 as well.

4 B. The Undisputed Evidence Is That the TGB Agreement Predates Any

Agreement with PSM and Covers the Pacquiao/Spence Bout
5

6 As TGB has now explained multiple times, Pacquiao is—and remains—contractually

7 obligated to participate in a third match with TGB, the August 21 Spence bout. TGB will not

8 repeat all of the details regarding its contractual relationship again here; they are set forth in in

9 TGB’s Motion to Intervene, Pacquiao’s Opposition, and in the Brown Declaration filed

10 concurrently with this Opposition. In short, TGB and Pacquiao entered into the TGB Agreement

11 in 2018. (Brown Decl. ¶ 12.) The TGB Agreement originally covered two fights but, after

12 Pacquiao won his first fight under the TGB Agreement, TGB and Pacquiao amended the

13 Agreement for a second time (the “Second Amendment”). 3 (Id. ¶ 14–15.) The Second

14 Amendment provided for a third fight pursuant to the TGB Agreement. (Ibid.) The parties later

15 executed a Third Amendment, which continued to require three Pacquiao fights, but permitted

16 Pacquiao to pursue a possible fight in Saudi Arabia up until the end of March, 2020. (Id. ¶ 17.)

17 If Pacquiao did not secure the Saudi bout by that time, he was required to participate in the third

18 TGB bout by the end of 2020. (Ibid.) After the Saudi bout failed to materialize, COVID struck in
19 early 2020 and turned the world upside down. (Id. ¶ 20.) COVID completely halted live sporting

20 events in the Spring of 2020 and caused tremendous uncertainty in the boxing world regarding

21 when matches might be held with live audience. (Ibid.) TGB and Pacquiao quickly realized that

22 it would not be economically feasible to stage a major fight, with a fighter of Pacquiao’s fame, in

23 the midst of the pandemic, including because any fight in 2020 would have to occur without a full-

24 capacity live audience and, therefore, without the attendant ticket sales that form a large part of a

25 bout’s revenue (Id. ¶¶ 21–22.) Rather than enforce its contractual right to a 2020 bout, therefore,

26

27 3
The first amendment of the TGB Agreement related to the first fight under the Agreement,
28 against Adrien Broner, and did not expand the number of fights under the Agreement.
11 Case No. 30-2021-01207553-CU-BC-CJC
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 1 TGB asked Pacquiao if he would be willing to hold a third fight in 2021. (Id. ¶ 23.) Pacquiao

2 agreed and, eventually, agreed to fight Spence on August 21, 2021. (Id. ¶¶ 23–24.)

3 In its Opposition to TGB’s Motion to Intervene, Plaintiff argued that the TGB Agreement

4 had expired at the end of 2020. But as TGB explained, Plaintiff’s argument is factually false and

5 contrary to well-established law that permits the parties to a contract to amend that contract,

6 including amending the time for performance (see, e.g., Travelers Ins. Co. v. Workmen's

7 Compensation Appeals Bd. (1967) 68 Cal.2d 7, 17), or may waive their right to rely on a

8 contractual timing provision (see, e.g., Henderson v. Drake (1953) 42 Cal.2d 1, 5).

9 Plaintiff has now apparently dropped this argument, in favor of the Burstein declaration’s

10 argument that TGB “has failed to provide any evidence that Pacquiao has a contractual obligation

11 to participate in the Spence Bout.” (Burstein Decl. ¶ 9.) Putting aside the patent impropriety of

12 Burstein arguing what is, and what is not, evidence in an attorney declaration, the argument is

13 wrong. Both Pacquiao and TGB have attested that Pacquiao is contractually obligated to fight

14 Spence on August 21. (See Declaration of Emmanuel Dapidran Pacquiao ¶¶ 6–8, 12–13; Brown

15 Decl. ¶¶ 11–26 & Exs. A–D.) That is competent evidence that establishes Pacquiao is so obligated

16 and it stands in stark contrast to the attorney argument and faux “expert opinion” set forth in the

17 Burstein declaration. Indeed, as TGB explains, the TGB Agreement is not, as Burstein argues, a

18 “mere[] promotional agreement[],” (Burstein Decl. ¶ 9), but rather a binding agreement that
19 requires Pacquiao to fight three times for TGB (Brown Decl. ¶ 13).

20 In sum, it is Plaintiff’s burden to prove that it is likely to prevail on the merits. Even if the

21 Burstein declaration were considered by the Court—and for all the reasons set forth above, it

22 should not be—it utterly fails to point to any competent evidence to support Burstein’s false

23 insinuation that there is no agreement between Pacquiao and TGB for the August 21 Pacquiao-

24 Spence match. Indeed, all the evidence is to the contrary.

25 Plaintiff’s only other “evidence” is the claim in the Attar declaration that Plaintiff allegedly

26 performed “due diligence” which revealed that there was no contractual obligation between TGB

27 and Pacquiao except for “an option held by TGB only for a future, potential fight against Floyd

28 Mayweather.” (Attar Decl. ¶ 12.) Of course, what diligence Plaintiff did or did not undertake is
12 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 meaningless. Plaintiff’s entire argument highlights the absurdity of a non-party to an agreement

2 attempting to challenge that agreement. It is the parties to the TGB Agreement who control that

3 contractual relationship and no amount of purported “diligence” can contradict the undisputed

4 evidence of the parties. 4 That undisputed evidence establishes that TGB and Pacquiao contracted

5 for three fights, that the third of those fights is to occur on August 21, and that the Agreement

6 between TGB and Pacquiao predates any agreement between Pacquiao and Plaintiff. The

7 agreements speak for themselves. (See Brown Decl. Exs. A–D.) The TGB Agreement therefore

8 has “priority” ahead of Pacquiao’s agreement with Plaintiff, according to the terms of Plaintiff’s

9 own deal with Pacquiao.

10 The existence of the TGB Agreement dooms Plaintiff’s claim on the merits. Plaintiff’s

11 purported challenge to that Agreement is entirely improper, including because it is set forth only

12 in declarations, and wholly meritless for the reasons explained above. The Court should reject

13 Plaintiff’s attempt to run roughshod over TGB’s contractual rights and cause massive and

14 irreparable harm to TGB, Spence, and numerous other innocent parties.

15 III. CONCLUSION
16 For all of the reasons set forth in this Opposition, in Pacquiao’s Opposition, and in

17 Pacquiao’s Evidentiary Objections, TGB respectfully requests that the Court deny Plaintiff’s

18 request for a preliminary injunction.

19

20

21

22
4
Even if Plaintiff’s alleged “diligence” were relevant to the inquiry here, the Attar declaration
23
falls far short of establishing that there is no agreement between Pacquiao and TGB. As with the
24 Burstein declaration, the Attar declaration is filled with argument and allegations not referenced in
the Motion, as part of Plaintiff’s “ruse to avoid page limits in a memorandum of points and
25 authorities.” (Weil & Brown, supra, ¶ 9:49.5.) And while Attar does not explain what sort of
“diligence” Plaintiff supposedly performed, it is undisputed that its “diligence” did not include
26 simply asking TGB about its contract with Pacquiao—even though Attar admits that Plaintiff was
aware that Pacquiao had a preexisting deal with TGB. (Brown Decl. ¶ 26.) Had Plaintiff simply
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inquired with TGB as part of its claimed “diligence,” TGB would have informed Plaintiff that
28 Pacquiao remained contractually committed to TGB. (Ibid.)
13 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
 1 DATED: August 3, 2021 MUNGER, TOLLES & OLSON LLP
BRAD D. BRIAN
2 E. MARTIN ESTRADA
3 JOHN L. SCHWAB
JOHN B. MAJOR
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5 By: /s/ E. Martin Estrada

E. MARTIN ESTRADA
6
Attorneys for Proposed Intervenor
7 TGB Promotions, LLC

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14 Case No. 30-2021-01207553-CU-BC-CJC
TGB’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION