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Lara Cullinane-Smith, SBN 268671
SHREM & SMITH
11720 San Pablo Ave, Suite C
El Cerrito, California 94530 Se
Telephone: 510-919-3214 FILE
Email: lara@shremlaw.com Teooan. ene a,
Attorneys for Defendant 07/17/2015
SAN FRANCISCO DEPUTY SHERIFFS’ ASSOCIATION Clehof fre Cour
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOHNA PECOT, THOMAS ARATA, RICH Case No. CGC - 10 -501168
OWYANG, STEPHEN TILTON, JOSEPH
LEAKE, and OSCAR TAYLOR, Individually DECLARATION OF LARA
and on behalf of all other similarly situated, CULLINANE-SMITH IN SUPPORT OF
SAN FRANCISCO DEPUTY
Plaintiffs, SHERIFF’S ASSOCIATION’S
v. OPPOSITION TO MOTION TO
CONTEST GOOD FAITH
SAN FRANCISCO DEPUTY SHERIFF’S SETTLEMENT
ASSOCIATION, a California Nonprofit
Corporation, SAN FRANCISCO DEPUTY Date: July 30, 2015
SHERIFF’S FOUNDATION, a California Time: 9:30 a.m.
Nonprofit Corporation, DAVID WONG, an Dept: 302
individual, MICHAEL ZEHNER, an individual,
BRIAN SAVAGE, an individual, SHEDRICK.
McDANIELS, an individual, and DOES 1-100,
Defendants.
I, Lara Cullinane-Smith, declare as follows:
1) Ihave personal knowledge of the information set forth herein, unless noted on
information and belief, all of which is true and correct of my own personal knowledge, and if.
called upon to testify, I could and would competently testify thereto.
2) T represent the San Francisco Deputy Sheriffs’ Association (“SFDSA”) in this
action.
3) I hereby certify that Exhibits 1 to 4 attached hereto, specifically the Settlement
Agreement, Wong’s Arbitration Demand, the Arbitration Award, and the SFDSA’s Demurrer to
the First Amended Complaint (without exhibits) are true and correct copies of those documents.
NECTAR ATION OFT AR A CLIT T INANE_SMITH4) On June 9, 2015, I caused a copy of the SFDSA’s proposed Motion for Sanctions
and all accompanying pleadings, exhibits and declarations to be hand served on Lawrence
Murray, counsel for David Wong, at his place of business at 1781 Union Street, San Francisco,
California, 94123, in accordance with CCP § 877 et seq.
5) My client, the SFDSA, has paid the award of the Arbitrator in the fees arbitration
in full.
6) As a result of the settlement between Wong and the SFDSA, attached hereto as
Exhibit 1, David Wong produced electronic copies of the SFDSA records he had taken from the
SFDSA when he left the Presidency. Those documents were not a full set of the documents
which were produced in the Federal Case, which I have reviewed at Plaintiffs’ counsel’s office,
and which are not otherwise in the possession of the SFDSA. The Plaintiffs have been allowed
to review all relevant documents which are in the SFDSA’s possession.
7) Ihave over 15 years of experience in commercial and business litigation. I have
reviewed this case and believe that the SFDSA would likely prevail in its arguments that it has
no liability because the Plaintiffs have issues regarding standing and because the SFDSA would
likely not be liable for failing to allow review of, or concealing, books and records which were
not in its possession but were in possession of Wong at the time the suit was filed.
8) In my experience, the settlement amount between the SFDSA and the Plaintiffs is
reasonable because while I believe the SFDSA would prevail, the settlement takes into account
the costs of proceeding with discovery and pre-trial motions, as well as the inherent risk in going
forward with litigation. The settlement is a result of a long, arms-length negotiation between
myself and Plaintiffs’ counsel and was reached in good faith, without any intent to harm Wong
in any way.
NECT AR ATION ORT AR A CTITT INANE.SMITHI declare under penalty of perjury of the laws of the State of California that the foregoing
is true and correct and that this declaration was executed in El Cerrito, California on July 17,
2015.
Lara Cullinane-Smith, Esq.
NECTAR ATION OFT AR A CTITT INNANE_SMITHTEXHIBIT 1SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement (“Agreement”), effective February 18, 2013, is made and entered into by and
among the following Parties (as defined below): (i) the Deputy Sheriff's Association of the City and County
of San Francisco, d/b/a/ “San Francisco Deputy Sheriffs’ Association “SFDSA"):(ii) the San Francisco
Deputy Sheriffs’ Foundation (the “SFDSF”); (iii) and David Wong. The Agreement is intended by the
Settling Parties to resolve, discharge, and settle the Released Claims (as defined below), upon and subject to
the terms and conditions hereof.
A. The Litigation
On or about April 15, 2009, Johna Pecot, Thomas Arata, Richard Owyang, Stephen Tilton, Joseph Leake
and Oscar Taylor (collectively referred to as the “Pecot Plaintiffs”) against the San Francisco Deputy
Sheriff's Association, David Wong, Michael Zehner, Brian Savage, and Shedrick McDaniels in the U.S.
District Court for the Northern District of California (N.D.Cal. Case No. CV 08-5125 CRB) (“Pecor I’)
alleging purported causes of action arising under 18 U.S.C. §§ 1862, et seq., California Corporations Code
§$§ 5150, 5223, 5342, 6333 and 6334, Breach of the SFDSA’s Bylaws and Constitution.
On or about June 30, 2010, Johna Pecot, Thomas Arata, Richard Owyang, Stephen Tilton, Joseph Leake,
and Oscar Taylor filed a lawsuit in the Superior Court for the County of San Francisco (Case No. CGC-10-
501168)(“Pecor I’) against the SFDSA, SFDSF, David Wong, Michael Zehner, Brian Savage, and
Shedrick McDaniels alleging purported causes of action for breach of contract, interference with
performance of contract, fraud, unfair competition, and conspiracy, denial of access to corporate records;
wrongful expulsion of corporation members; defamation.
On or about July 23, 2012, the SFDSA filed a lawsuit against the SEDSF and David Wong in the U.S.
District Court for the Northern District of California (N.D. Cal. Case No, CV-12-3823) (the “Trademark
Action”) for violations of the Lanham Act, common law unfair competition, declaratory judgment, breach
of fiduciary duty, and violation of California Business and Professions Code §§ 17200, et seq.
On or about November 29, 2012, the SEDSA filed a lawsuit against the SFDSF and David Wong in the
Superior Court for the County of San Francisco (Case No. CGC-12-526487) (the “Conversion Action”),
alleging causes of action for conversion, and injunctive relief.
David Wong has moved for leave in the Trademark Action to file a counterclaim for the logo utilized by the
SFDSA.
Wong, for acting as an SFDSA official, is seeking indemnity from the SFDSA for all of his fees and costs,
Wong and his attorneys seek the payment of fees and costs in each case, even if Wong is found to have
violated a law, rule or statute. Labor Code section 2802, and O'Hara v. Teamsters,
Mi
il Dv.
4
Ss D>
- DeSETTLEMENT AGREEMENT AND MUTUAL RELEASE 2
Between SFDSA, SFDSF, and David Wong
February 18, 2013
Page
B. TERMS
1.) Within 30 calendar days of the signing of this Settlement Agreement, the San Francisco Deputy
Sheriffs’ Foundation will present to the California Secretary of State Amend Articles Of Incorporation and
any and all other amended documents necessary to seek an amendment of the Articles of Incorporation for
the San Francisco Deputy Sheriffs’ Foundation to change the name and identity of the corporation to the
“Bay Area Deputy Sheriffs’ Charitable Foundation.”
2.) Within 30 calendar days of receiving the Amended Articles Of Incorporation the SFDSF will amend
its designation with the Internal Revenue Service in order to become known as the “Bay Area Deputy
Sheriffs’ Charitable Foundation.” Upon receipt of filed Amended Articles of Incorporation demonstrating a
name change of the SFDSF to “Bay Area Deputy Sheriffs Charitable Foundation,” the SEDSF will send out
a letter to its members in conformity with Exhibit “A,” attached hereto.
3.) Within fourteen calendar days of signing this Agreement, the San Francisco Deputy Sheriffs’
Foundation will cease distribution of any and all pens, “T-shirts, clothing, and other items used to promote
San Francisco Deputy Sheriffs’ Foundation and/or bearing the name “San Francisco Deputy Sheriffs’
Foundation” or “San Francisco Deputy Sheriffs’ Association Foundation” and/or the SEDSA logo. Until
the SFDSF receives its Amended Articles of Incorporation from the California Secretary of State, the
SFDSF may refer to itself as the “San Francisco Deputy Sheriffs’ Foundation.”
4.) The SFDSA waives any claims for the return of client lists derived, compiled, or otherwise
assembled by the San Francisco Deputy Sheriffs’ Foundation since its inception in October 2004.
5.) At no time will the SFDSA, David Wong, the SFDSF, or the Bay Area Deputy Sheriffs Charitable
Foundation, or any of their affiliates, adopt, act as, or utilize the names “San Francisco Deputy Sheriffs’
Foundation,” “San Francisco Deputy Sheriffs’ Charitable Foundation,” or the “San Francisco Deputy
Sheriffs’ Association Foundation” in any activity representation or solicitation. No party will authorize any
individual or entity to use such names. David Wong, the SFDSF, and the Bay Area Deputy Sheriffs’
Charitable Foundation shall not adopt, act as, or utilize any name employing the phrase “San Francisco
Deputy Sheriffs” in any activity or solicitation. Notwithstanding this Paragraph, the SFDSF may continue to
use the name “San Francisco Deputy Sheriffs’ Foundation” and logo until the SFDSF receives the Amended
Articles of Incorporation. If for any reason the California Secretary of State rejects the Amended Articles of
Incorporation changing the SFDSF’s name to Bay Area Deputy Sheriffs’ Charitable Foundation, the parties
shall promptly meet and confer to select a mutually agreeable alternative name for the SEDSF. :
6.) The Bay Area Deputy Sheriffs’ Charitable Foundation shall inform all interested parties and
members of the public who inquire that it is not in any way affiliated with, sponsored by, or endorsed by the
SFDSA.
7.) David Wong hereby assigns the SFDSA any and all rights title and interest in SFDSA’s logo, a copy
of which is attached to this agreement as Exhibit B upon the receipt of a check in the amount of $1000 made
payable to David Wong. The SFDSF agrees to use the name Bay Area Deputy Sheriffs’ Charitable
RI
LO SeSETTLEMENT AGREEMENT AND MUTUAL RELEASE 3
Between SFDSA, SEDSF, and David Wong
February 18, 2013
Page
Foundation the logo attached as Exhibit C, as the logo of the Bay Area Deputy Sheriffs’ Charitable
Foundation in which the words “Bay Area” replace the words “San Francisco” in the existing logo and the
word Charitable” goes in the ribbon. The SFDSA irrevocably consents to the use of the name and image
and logo of the Bay Area Deputy Sheriff's’ Charitable Foundation as demonstrated in Exhibit C. The
SFDSF shall abandon its application for the contested logo. The SFDSF and David Wong will not oppose
registration of the SFDSA’s trademarks.
8.) As and for additional consideration the SFDSA will receive from David Wong a copy of the
documents in his possession which are the property of the SFDSA. These documents will be
provided within seven calendar days after signing this Settlement Agreement. David Wong will
present a copy of any and all emails and or information on SFDSA members which would
contain information as specified in Penal Code sections 832.5 and 832.7 and any other applicable
statues, cases or State or Federal constitutions affecting the privacy of the DSA current or former
members within seven calendar days of signing this Settlement Agreement. To the extent that
any information contained in the documents is information of current or former members as
specified in Penal Code sections 832.5 and 832.7 and any other applicable statues, cases or State
or Federal constitutions affecting the privacy of the DSA current or former members, those
documents shall be removed from any computers connected to the internet and shall be stored in
an area accessible only to David Wong and/or his counsel and may not be used for any purpose
or disseminated at any time whatsoever by David Wong. To the extent that there is any dispute
about the documents produced, the parties agree to submit them to Hon. William Cahill (Ret.).
Said production of documents shall be certified as to completeness and veracity by Hon. William
Cahill (Ret.) To the extent that the SFDSF’s documents are in the possession and control of the
SFDSA or its lawyers, those documents will be returned to Lawrence Murray on behalf of the
SFDSF within fourteen calendar days.
9) It is the intention of the Parties to be legally bound by the terms and conditions of this Settlement
Agreement, and in furtherance of that intention, the Parties expressly waive any and all rights and benefits
conferred or which may be conferred upon them by the provisions of Section 1542 of the California Civil
Code, and any similar law or laws of any state or territory of the United States or any other country in the
world. Section 1542 reads as follows:
"A general release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.”
General Release and Waiver of All Claims. David Wong and the SFDSF unconditionally, irrevocably and
absolutely release and discharge the SFDSA, as well as any of its present or former employees, officers,
agents, attorneys, affiliates, successors, assigns and any other representative of the SFDSA (collectively
“Released Parties”) from all causes of action, judgments, liens, indebtedness, damages, losses, claims,
liabilities, and demands of any kind, known or unknown, including attorneys’ fees and costs, which David
Wong and/or the SFDSF may have against the Released Parties, arising from, or in way related to the
allegations in Pecot II, the Trademark Action and the Conversion Action. This release shall not apply to
eo Tipe '
aSETTLEMENT AGREEMENT AND MUTUAL RELEASE 4
Between SFDSA, SEDSF, and David Wong
February 18, 2013
Page
claims David Wong and the SFDSF may have against Johna Pecot, Thomas Arata, Rich Owyang, Stephen
Tilton, Joseph Leake, and Oscar Taylor. The SFDSA unconditionally, irrevocably and absolutely releases
and discharges the David Wong and the SFDSF, as well as any of its present or former employees, officers,
agents, attorneys, affiliates, successors, assigns and any other representative of the SFDSA (collectively
“Released Parties”) from all causes of action, judgments, liens, indebtedness, damages, losses, claims,
liabilities, and demands of any kind, known or unknown, including attorneys’ fees and costs, which David
Wong and/or the SFDSF may have against the Released Parties, arising from, or in way related to the
allegations in Pecot II, the Trademark Action and the Conversion Action.
10. Each party hereto warrants and represents that they have read, and that they understand, all of the
provisions contained herein. This Settlement Agreement is signed freely by each party. Each person signing
below in a representative capacity for a party has authority to bind that party.
11. Each party hereto represents and warrants that they have consulted with their own attorney
concerning and participated in the drafting of each of the terms contained in this document. No inference,
assumption, or presumption shall be drawn from the fact that one party or its attorney prepared this
Settlement Agreement. It shall be conclusively presumed that each party participated in the preparation of
this Settlement Agreement.
12. Each party hereto agrees that this document, and the interpretation thereof, shall be governed by the
laws of the State of California.
13. Except as otherwise provided in this Settlement Agreement, each party hereto agrees that, should
any action, arbitration or other proceeding be instituted in order to enforce the provisions of this Settlement
Agreement, each party will bear its own attorneys! fees and costs, including expert witness fees. The site of
venue for all purposes in interpretation and enforcement of this Agreement is in San Francisco County,
California.
14. Each of the parties hereto understands that each of the terms and conditions set forth herein are
contractual and material to this Settlement Agreement as a whole, and that none of the terms or conditions
contained herein is a mere recital.
15. This Agreement is the entire agreement between the Parties. No representation, recital, or factual
rendition is of any moment or effect if not contained in this Settlement Agreement. If any part of this
Agreement is determined to be unenforceable, the remaining provisions shall be enforced. This Settlement
Agreement may be executed in counterparts, each of which will be deemed an original. Facsimile signatures
will have the same force and effect as original signatures.
16. Each Party shall, upon the other's reasonable request, take all steps and execute, acknowledge, and
deliver to the others all further instruments necessary or expedient to effectuate the purposes of this
Settlement Agreement. Each party will further not take any action which would interfere with the
performance of this Settlement Agreement or which would adversely affect any of the rights provided
herein. Be)
KD se
BRDSETTLEMENT AGREEMENT AND MUTUAL RELEASE 5
Between SFDSA, SFDSF, and David Wong
February 18, 2013
Page
17 The Parties acknowledge this Settlement Agreement is contingent on the SFDSA’s Board ratifying
it. The SFDSA agrees to call a special Board meeting to ratify this Settlement Agreement within seven (7)
calendar days of signing it. The SFDSA shall promptly notify Lawrence Murray once the Settlement
Agreement is ratified.
Cc. Resolution of Fee Dispute —
Any claims SFDSF and David Wong and their attorneys, Murray & Associates, Lawrence D. Murray, and
Michael Bosworth, may assert against the SFDSA for attorneys fees and costs shall be resolved by binding
arbitration pursuant to JAMS Rule 33 for Final Offer Arbitration before the Hon. William Cahill. This
agreement to arbitrate all claims for fees by and behalf of attorneys for the foundation shall only be binding
if the arbitration is held by the Hon. William Cahill or another JAMS member agreed to by the Parties.
Said arbitration will occur at the earliest opportunity.
The parties agree that the DSA will not be responsible for any fees or costs arising out of any future claims,
motions or litigation brought by David Wong or the Wong Defendants against the Pecot plaintiffs arising or
relating to the Pecot J claims after February 18, 2013.
D. Resolution of All Other Disputes Arising Out of this Settlement Agreement—
It is hereby agreed by and between the parties to this agreement that any claims arising out of this
Settlement Agreement shall be decided in JAMS arbitration before the Hon. William Cahill and only before
judge Cahill or any other JAMS member agreed to by the Parties, Said arbitrations shall occur pursuant to
JAMS rules.
For the San Francisco Deputy Sheriff's Association For the San Francisco Deputy Sheriffs’ Foundation
a SEDSA FRESIOENT heL ba “Biv LIG
Ey Corgee Yer Srose Abel mn Sieongely, fy
G7 PEeeEeE eee reece eee Seas? LEDNAED My KEERL
v Dee amore FoundaWe would like to take this opportunity to announce the creation of a Bay Area
organization, which is the efforts of deputy sheriffs throughout the Bay Area to
support our communities. Today, the “Bay Area Deputy Sheriffs Charitable
Foundation” has begun a track to expand the benefits to our community beyond the
borders of San Francisco.
We, the Deputy Sheriffs of the Bay Area, who have formed and operate this
organization, wish to raise the bar to challenge the entire bay area to work with us
to help the less fortunate and assist our neighbors, which is a benefit to us all. We
are not affiliated with the San Francisco Deputy Sheriffs Association.
We are in the process of identifying those communities where we could be most
effective in making a change and the difference. We would like your thoughts and
assistance in how we as a group can benefit our entire Bay Area with this much
impact as possible given our limited resources. We hope to hear from you in the
near future.
Dud ae
7 Ex 8:7 A *Fehibit BoCase4:12-cv-L_323-SBA Document32 Filed11/14/.. Page38 of 38
Boy Area Detury Sterees Cranage
Feu wDAaTion : lc.EXHIBIT 2Lawrence D. Murray (SBN 77536)
MURRAY & ASSOCIATES
1781 Union Street
San Francisco, CA 94123
Tel: (415) 673-0555 Fax: (415) 928-4084
James A. Lassart
Ropers Majeski Kohn & Bentley
75 Broadway Ste 202
San Francisco, CA 94111
Tel: (415) 543-4800 Fax (415) 972-6301
Attorneys for Claimant David Wong:
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
In Re Arbitration Claims Against The DEPUTY JAMS CASE NO: 1100072797
SHERIFFS ASSOCIATION OF THE CITY
AND COUNTY OF SAN FRANCISCO, NOTICE OF CLAIM BY DAVID. WONG
(JAMS Comprehensive Arbitration Rule #9)
Pursuant to the “SETTLEMENT AGREEMENT AND MUTUAL RELEASE,” dated February
18, 2013, between the Deputy Sheriff's Association of the City and County of San Francisco, (“DSA”);
David Wong, (“Wong”) and San Francisco Deputy Sheriff's Foundation, (“F oundation”) Section C,
Resolution of Fee Dispute, David Wong and the San Francisco Deputy Sheriffs Foundation submit the
following as their claim for fees under said section against the Deputy Sheriffs Association of the City
and County of San Francisco.
The Settlement Agreement recites each of the four cases upon which David Wong was sued, and
now seeks indemnity here, by reason of his position or association with the DSA. The Agreement then
states:
Wong, acting as a DSA official, is seeking indemnity from the DSA for all of his fees and
costs. Wong and his attorneys seek the payment of fees and costs in each case, even if Wong
is found to have violated a law, rule or statute. Labor Code section 2802 and O’Hara v.
Teamsters.
The Settlement Agreement agrees to resolution of these fees as follows:
DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Pagel
NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)C, Claim: Fees for All Litigation, Including This Fee Arbitration —
Any claims SFDSF and David Wong and their attorneys, Murray & Associates, Lawrence D.
Murray, and IPxLaw Group LLP and Michael Bosworth, may assert against the SFDSA for
attorneys fees and costs shall be resolved by binding arbitration pursuant to JAMS Rule 33
for Final Offer Arbitration before the Hon. William Cahill. This agreement to arbitrate all
claims for fees by and on behalf of attorneys for the foundation shall only be binding if the
arbitration is held by the Hon. William Cahill or another JAMS member agreed to by the
Parties. Said arbitration will occur at the earliest opportunity.
‘The parties agree that the DSA will not be responsible for any fees or costs arising out of any
future claims, motions or litigation brought by David Wong or the Wong Defendants against
the Pecot plaintiffs arising or relating to the Pecot J claims after February 18, 2013.
There are five components of the fees being sought, these four cases and the fees generated
seeking indemnity. In each instance, Murray and Associates performed successfully in securing a
dismissal of all claims made by the Pecot Group and the DSA, (with one lingering claim properly
asserted against the DSA only) as well as granting of a dismissal with prejudice in Case 1, and the
granting of a SLAPP order for the individual defendants in Case 2. The DSA has now dismissed with
prejudice Case 3, and Case 4 will likely be dismissed on motion of Wong and the Foundation shortly.
Case #1 Pecot et al. v. DSA, David Wong, RICO ~ Federal Court
The first suit was filed by Jobna Pecot and others in US District Court claiming that Wong, as the
DSA President, was running the DSA as a criminal enterprise, by forming and operating the Foundation.
The first suit claimed Wong breached his fiduciary duty to the DSA. It tied the Foundation as the
necessary “enterprise” for the RICO allegations. That case, entitled Pecot et al. v. San Francisco Deputy
Sheriffs Association, David Wong, US District Court case number CV ~ 08 — 5125 — CRB contended
that Wong formed the Foundation illegally. (Previously Submitted Binder, “PSB” Exhibit DD
As to these claims, the Board of Directors accepted the findings of the investigative committee
that Wong had done nothing wrong. Each complaint was found to be without merit. After filing suit,
the DSA again conducted an investigation, concluding that Wong and the other officials didn’t do
anything wrong and the suit should be dismissed. These findings were the basis for a motion to dismiss
with prejudice brought on behalf of Wong by Murray. (PSB Exhibit 2)
The fees associated with Case #1 — Murray & Associates $ 49,925.25
Less DSA payments: — $ 29,110.00
Remaining Unpaid: $ 20,815.25
DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 2
NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)The theory of the DSA’s obligation for Wong’s fees is:
(a) Indemnity under Labor Code Section 2802 and O’Hara v. Teamsters;
(b) Resolution of the Board of Directors obligating the DSA for fees associated with this case; and
(c) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA
(d) Quantum meruit
Case #2 Pecot et al. v. DSA, David Wong, RICO — State Court
The second case (Pecot II) was brought in Superior Court with the same title, case number CG C
— 10 - 501168, on identical allegations as the case just dismissed in federal court. (PSB Exhibit 7) A
detailed diagram of the identical allegations, shifting from one location in the complaint to another, is set!
out in that exhibit. It was also was the subject of a “Safe Harbor” letter, Civil Code Section 128.5.
During a meeting of defense counsel at the start of this case Murray urged counsel for the DSA,
Lara Cullinane-Smith, to file a SLAPP motion. He was filing a SLAPP motion for the individual
defendants. They declined. The SLAPP motion for Wong and the individual defendants was granted in
July 2011 and the motion for reconsideration has dragged on for almost two years with a tentative ruling
that it is denied. The DSA would likely have gotten out also had it filed a SLAPP motion at that time, or
at least joined in the motion. It was Murray who then went about setting up and instituting the SLAPP
motion, declarations, exhibits and objections to evidence on the basis that the elections and the
arguments raised in the elections were protected, Even though the SLAPP motion that was filed was
denied in the tentative ruling, Murray continued to go forward contesting the tentative ruling. It was
only after oral argument that the court indicated that it would consider the arguments and, after
argument, that the Court issued a ruling granting the SLAPP motion. The Foundation appeared at the
hearing, stated they were joining in, and secured a dismissal, though they did not file any paperwork
designating they joined. The DSA did not even file a joinder, where it could have secured a dismissal.
The fees associated with Case #2 — Murray & Associates $ 173,264.25
The theory of the DSA’s obligation for Wong’s fees is:
(a) Indemnity under Labor Code Section 2802 and O’Hara v. ‘Teamsters;
(b) Resolution of the Board of Directors obligating the DSA for fees associated with this case; and
(c) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA.
(4) Quantum meruit
Case #3 DSA v. Foundation & David Wong, Trademark, “SF Deputy Sheriff” — Fed Court
DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 3
NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)The third case was filed by the DSA against Wong to recover the use of the name “San Francisco
Deputy Sheriff.” (PSB Exhibit 14) Although the DSA chose the name for the entity, set up the
Foundation, paid the fees for its formation, and openly assisted the Foundation to function, it claims a
right to end the Foundation’s use of the name and sue Wong for a breach ofa fiduciary duty in setting up
the Foundation. Wong was sued on the theory that as a DSA officer and President, that he breached of
his fiduciary duty to the union by forming the Foundation. This was in direct contradiction to the
findings by two investigative committees, and the results which were accepted by the board.
Wong, through Murray & Associates, filed a Motion for Judgment on the Pleadings, seeking
dismissal of the Amended Complaint without leave to amend, and leave to file an Amended Answer
with Counter-Claims to preserve the claims for copyright violation of the logo in issue as attached to the
Amended Complaint, Exhibits A and B, should this matter continue. (PSB Exhibit 17, 18, 19)
This case required the assistance of a specialist, Attomey Mike Bosworth for guidance, direction,
research, and advice on the subtleties of trademark, trade name and copyright law. Bosworth was
originally hired by the Foundation to set up the Trademark for the Foundation, which was now the
subject of the suit. In the Motion to Dismiss, generic use, descriptive use, consent, estoppel, latches and
fair use were each presented as part of the defense of the case, as well as the those theories applying to
the use of the logo, where the copyright ownership of the DSA’s logo was asserted on behalf of its
author, David Wong. The motion to dismiss was on the grounds that David Wong committed no act
independent of the Foundation itself. Immediately after the motion was filed, the case settled.
Since Wong was sued for breach of his fiduciary duty to the DSA for acting as a DSA official,
the DSA is required to pay his fees in case three, even if Wong is found to have violated a law, rule or
statute. And, even if any such action had been deemed. material, which is not the case, there is no such
finding. Labor Code Section 2802. O’Hara v. Teamsters (Exhibit 9)
The fees associated with Case #3 — Murray & Associates $ 1 15,712.50
Michael Bosworth $ 20,416.49
The theory of the DSA obligation for Wong’s fees is
(a) Indemnity under Labor Code Section 2802 and O’Hara v. Teamsters;
(b) Resolution of the Board of Directors obligating the DSA for fees associated with this case, and (c)
Rule 11, Federal Rules of Civil Procedure, with a Safe Harbor letter
(c) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA
(d) Quantum meruit
DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 4
NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)Case #4 DSA v. Foundation & David Wong, Possession of Info & Computer, — State Court
The DSA filed a fourth suit against Wong and the Foundation for the return of documents (in
paper or on the computer, (PSB Exhibit 23, Complaint {1 6, 10). The DSA admits in their complaint
that Wong and the Foundation rely on these documents in the first three actions to protect themselves
from liability, even the liability claimed in the third suit (PSB Exhibit 23, Complaint J 18). In this suit,
the DSA sued to strip Wong of these very documents needed for his defense. (Complaint Prayer ] 4,
page 5, “return of all property...”) The DSA seeks to interfere with Wong’s right to discovery, received.
in Federal Court from Case #1 which has been used in all three cases to defend himself. (PSB Exhibit
23, Complaint $18) The suit also claims that the DSA owns the computer in Wong’s possession.
However, Wong in his Safe Harbor letter provided to the DSA lawyer copies of Wong’s credit card
receipts by which the computer was purchased. Regardless, the DSA would not withdraw the suit.
All of the documents in Wong’s possession, (hence attributed to the Foundations? possession) are}
from discovery in the first suit, the Federal Suit, (¢.g., a court proceeding protected by SLAPP.) There
are no documents from any other source in Wong’s possession. The DSA was informed about that
repeatedly, and elected to go ahead anyway. (PSB Exhibit 22, letter to January 4, 2013) As a litigant in
a federal court proceeding, Wong has a right to acquire, hold, review and use such discovery documents.
(Federal Rules of Civil Procedure § 26(a)) Further, since acquisition and possession are part of a
judicial proceeding, such acquisition and possession is protected activity under a SLAPP motion (PSB
Exhibit 24), Motion to Strike (PSB Exhibit 25) and Demurrer (PSB Exhibit 26) are pending.
Even if Wong had other documents, and sensitive documents of the SFDSA, as a member of the
board of directors, he has an absolute right and a qualified right to possess SFDSA documents. (See
below) Even the SFDSA Bylaws mandate the right to SFDSA documents.
The fees associated with Case #4 — Murray & Associates $ 46,587.50
The theory of the DSA’s obligation for Wong and the Foundation’s fees are
(a) Indemmnity under Labor Code Section 2802 and O'Hara v. Teamsters;
(b) Resolution of the Board of Directors obligating the DSA for fees associated with this case, and
(c) SLAPP motion filed with dismissal under Settlement Agreement shortly thereafter by DSA,
(d) Safe harbor letter sent, lack of good faith belief in facts of their case, and no efforts taken to seek
dismiss, hence liability for fees under Civil Code Section 128.7
(e) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA
() Quantum meruit
DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 5
NOTICE OF CLAIM BY DAVID WONG (SAMS Comprehensive Arbitration Rule #9)Case #5 Fees Arbitration
As a result of the cases, Wong necessarily incurred fees for his defense. However, separate
from that, as a result of the DSA’s refusal to carry out its responsibility for payment of fees, Wong
has incurred additional expenses and fees while secking indemnity. This is the fifth component of
his claim. Civil Code Section 2802 requires indemnity for “af that the employee necessarily
expends or loses.” In mediation and argument to the arbitrator, the DSA offers no persuasive
reason why “all” shouldn't be read to mean just that. In fact, having admitted that “all” expenses
include attorney's fees incurred in the original O'Hara action, the Union in that case was ruled to be
responsible for even the fees seeking fees. That Court noted that it was an especially difficult
argument for the DSA because if fees incurred in enforcing indemnity claims were excluded, the
right to claim fees incurred in the original action would be effectively eliminated. An employer
who wished to avoid paying an employee who had proven a right to indemnification under § 2802
could simply refuse; secure in the knowledge that it might very well cost the employee more to
enforce his rights under § 2802 than the amount expended in the original action. Such was the
situation in the present case, where Catherine Leal incurred larger fees in the process of enforcing
her indemnification claim under § 2802 than in defending and settling the underlying action with
OHara.
The costs expended in seeking indemnity: Payments to JAMS $ 10,351.18
The fees associated with Case #5 — Murray & Associates $ 10,000 anticipated
James A. Lassart — $ 20,000 anticipated
The theory of the DSA obligation for Wong’s fees is:
(a) Indemnity under Labor Code Section 2802 and O’Hara v. Teamsters;
(b) Resolution of the Board of Directors obligating the DSA for fees associated with this case.
(c) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA
(d) Quantum meruit
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DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 6
NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)The total claim for all fees and costs are claimed on behalf of David Wong is $ 370,560.08.
Date: May 9, 2013 Respectfully submitted,
MURRAY & ASSOCIATES
awrénce D. Murray
Attémey for Claimant David Weng
DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 7
NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)EXHIBIT 3Hon. William J. Cahill Ret.)
JAMS
Two Embarcadero Center, Suite 1500
San Francisco, CA 94111
Phone: 415-774-2662
Fax: 415-982-5287
Email: jnixon@jamsadr.com
JAMS REFERENCE NO. 1100072797
In re San Francisco Deputy Sheriffs’ FINAL ARBITRATION AWARD
Association
L DU! N
This arbitration was conducted under the terms set forth ina February 18, 2013
Settlement Agreement and Mutual Release (“Agreement”). The three parties to that
Agreement are the Deputy Sheriff's Association (‘SFDSA”) (the respondent in the
arbitration), the San Francisco Deputy Sheriffs’ Foundation (“SFDSF”) and David
Wong (“Wong”) (claimant in the arbitration).
The Agreement resulted in four separate cases being resolved. The four cases
resolved by the settlement were:
1 Pecot, et.al, v. SFDSA, Wong, et.al, (N.D. Cal. Case No. CV 08-5125 CRB)
(“Picot I”).
2. Picot, et., al. v. SFDSA, et., al, (San Francisco Superior Court Case No. CGC-
10-501168 (“Picot II’).
3. SFDSA v. SFDSF, et., et., al., (N.D. Cal. Case No. CV 12-3923) (“Trademark
Action’).
4, SFDSA v. SFDSF, et., al, (San Francisco Superior Court Case No. CGC-12-
526487) (“Conversion Action”).
1|PezeThe arbitration hearing was before the Hon. William Cahill (Ret.) and held in the
San Francisco offices of JAMS and under paragraph C. of the Agreement which reads:
G Res i fFee
Any claims SFDSF and David Wong and their attorneys, Murray
& Associates, Lawrence D. Murray and IPxLaw Group LLP and
Michael Bosworth, may assert against the SFDSA for attorneys’
fees and costs shall be resolved by binding arbitration
pursuant to JAMS Rule 33 for Final Offer Arbitration before the
Hon. William Cahill. This agreement to arbitrate all claims for
fees by and behalf of attorneys for the foundation shall only be
binding if the arbitration is held by the Hon. William Cahill or
another JAMS member agreed by the Parties.
The parties agree that the DSA will not be responsible for any
fees or costs arising out of any future dclaims, motions or
litigation brought by David Wong or the Wong Defendants
against the Pecot plaintiffs arising or relating to the Pecot I
claims after February 18, 2013.
D. Resolution of All Other Disputes Arising Out of this
Settlement Agreement.
It is hereby agreed by and between the parties to this
agreement that any claims arising out of this Settlement
Agreement shall be decided in JAMS arbitration before the Hon.
William Cahill and only before judge (sic) Cahill or any other
JAMS member agreed to by the Parties. Said arbitrations shall
occur pursuant to JAMS rules,
U. JAMS RULE 33
As set forth in the Agreement, the hearing was held pursuant to JAMS
Comprehensive rule 33. At the hearing, the parties confirmed that JAMS Rule 33
applied. In pertinent part that Rule provides (bold added):
Rule 33. Final Offer (or Baseball} Arbitration Cption
(a) Upon agreement of the Parties to use the option set
forth in this Rule, at least seven (7) calendar days before
the Arbitration Hearing, the Parties shall exchange and
provide to JAMS written proposals for the amount of
money damages they would offer or demand, as applicable,and that they believe to be appropriate based on the
standard set forth in Rule 24(c).... At any time prior to
the close of the Arbitration Hearing, the Parties may
exchange revised written proposals or demands, which
shall supersede all prior proposals...
(b) If the Arbitrator has been informed of the written
proposals, in rendering the Award the Arbitrator shail
choose between the Parties’ last proposals, selecting the
proposal that the Arbitrator finds most reasonable and
appropriate in light of the standard set forth in Rule 24(c).
This provision modifies Rule 24(h) in that no written
statement of reasons shall accompany the Award.
(co)...
UL The Parties Written Proposals.
In his January15, 2014 brief, Mr. Lassart, on behalf of his clients made a
written demand under Rule 33 of payment to Murray & Associates for
$585,841.71 and for IPxLAW Group $25,728,72.
In her January 29, 2014 brief, Ms, Smith, on behalf of her clients made a
written Rule 33 offer of $125,000 in three monthly payments, $50,000, $50,000
and $25,000 with the first payment due in 30 days after the award.
NW ECISION UNDER RULE 33.
After review of the evidence, oral and written the arbitrator makes the
following ruling:t
IT IS HEREBY ORDERED:
1. Murray & Associates and IPxLAW Group are award a total of $125,000
to be paid, starting 30 calendar days from the date of this order in 3
payments. The first payment of $50,000 is to be made payable to the
Murphy, Pearson, Bradley & Feeney trust account. The second
payment of $50,000 is to be made thirty days thereafter (60 days after
1In an email dated January 29, 2014, Mr. Lassart objected to the arbitrator
considering a new Exhibit A. That objection is SUSTAINED.this order), and the third payment of $25,000 to be paid in an
additional 30 days (90 days after this order).
2. This order is the final determination of attorneys’ fees that are owed in
regards to Picot J, Picot II, the Trademark case and the Conversion case,
3. This award is final pursuant to JAMS Comprehensive Rules.
IT IS SO ORDERED. b/)
DATE: March 31, 2014 }
Judge William Cahill (Ret)
JAMS
4| PeesEXHIBIT 4Lara Cullinane-Smith, SBN 268671
LAw OFFICE OF LARA C. SMITH
1086 Arlington Blvd. ELECTRONICALLY
El Cerrito, California 94530 FILED
Telephone: 510-919-3214 Superior Court of Catifomia,
Email: laracsmith@gmail.com County of San Francisco
Attorneys for Defendant Bee 2 i: Z oe
SAN FRANCISCO DEPUTY SHERIFFS’ ASSOCIATION BY IWLLIAMT ALOE
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA.
COUNTY OF SAN FRANCISCO
JOHNA PECOT, THOMAS ARATA, RICH Case No. CGC — 10 -501168
OWYANG, STEPHEN TILTON, JOSEPH
LEAKE, and OSCAR TAYLOR, Individually MEMORANDOM OF POINTS AND
and on behalf of all other similarly situated, AUTHORITIES IN SUPPORT OF SAN
FRANCISCO DEPUTY SHERIFE’S
Plaintiffs, ASSOCIATION’S NOTICE OF DEMURRER
Vv. AND DEMURRER WITHOUT LEAVE
AMEND TO PLAINTIFFS’ AMENDED
SAN FRANCISCO DEPUTY SHERIFF'S COMPLAINT OR IN THE ALTERNATIVE,
ASSOCIATION, a California Nonprofit MOTION TO STRIKE CERTAIN CLAIMS
Corporation, SAN FRANCISCO DEPUTY
SHERIFF’S FOUNDATION, a California Date: September 4, 2014
Nonprofit Corporation, DAVID WONG, an Time: 9:30 a.m.
individual, MICHAEL ZEHNER, an individual, Dept: 302
BRIAN SAVAGE, an individual, SHEDRICK Reservation No. 072214-03
McDANIELS, an individual, and DOES 1-100,
Defendants.
COMES NOW Defendant Deputy Sheriffs’ Association of the City and County of San
Francisco, d/b/a San Francisco Deputy Sheriffs’ Association ("SFDSA") and files this Memorandum of
Points and Authorities in support of its Demurrer Without Leave to Amend, or, in the Alternative,
Motion to Strike Certain Claims (the “Demurrer”).
I. FACTS
Plaintiffs’ filed the first Complaint in this action on June 30, 2010, alleging seven causes of
1
MPA IN SUPPORT OF SFDSA’S NOTICE OF DEMURRER AND DEMURRER TO AMENDED
COMPLAINTN
w
action including Fraud and Concealment of Records pursuant to Corporations Code §§ 6333 and 6334. '!
(Request for Judicial Notice [“RJN”] Exhibit 1.) There have been numerous motions, arguments ani
orders in the case, including an order resulting from the individual defendants’ Motion for Judgment on]
the Pleadings. That motion requested that the sixth cause of action be dismissed as to David Wong
because it was not properly brought against an individual and because it was barred by res judicata. The
order on this Motion, entered on September 12, 2013 states, in relevant part:
Defendant David Wong’s, Michael Zehner’s, Brian Savage’s and Shedrick McDaniels’ Motio
for Judgment on the Pleadings is granted with leave to amend. Plaintiffs have properly pled <
cause of action under Cal. Corp Code §§ 6333 and 6334 and the Court grants leave to amend 4
allow Plaintiff the opportunity to separately state a cause of action for concealment. The Cou
cannot look outside the face of the pleadings in ruling on a motion for judgment on the|
pleadings. The sixth cause of action is not res judicata of the U.S. District Court case.
(RIN Exhibit 2.) The SFDSA was not a party to that motion. On June 27, 2014, the Plaintiffs filed an!
Amended Complaint, striking all of their previous causes of action except the sixth (Concealment of
Books and Records), and adding a new eighth cause of action entitled only “Concealment.” (Smit
Decl. Exhibit 1.) Because the Plaintiffs have no standing, and do not properly state a claim against the}
SFDSA, the SFDSA now demurrers to the remaining two causes of action.
IL. ARGUMENT
Plaintiffs do not have standing to bring the remaining claims. Only two of the Plaintiffs are
alleged to have made demands for the books and records and they have not been members of the SEDSAI
since long before this action began. Because those two Plaintiffs no longer challenge their removal fro
the SFDSA, they lack standing to bring this action. Because they made no demands that were denied, the
other Plaintiffs also lack standing. Further, the new cause of action is improperly pled as it either creates|
a tort unknown to California law or improperly pleads fraud. Further, there are no remaining causes o
action which could be brought on behalf of a class and thus Plaintiffs have again failed to state a claim!
' For the purpose of a demurrer, the allegations in the pleading are taken as true, but by bringing this
Demurrer, the SFDSA does not admit any of the allegations in the Amended Complaint, including that it
is a public benefit corporation.
2
MPA IN SUPPORT OF SFDSA’S NOTICE OF DEMURRER AND DEMURRER TO AMENDED
COMPLAINTny
a
oo
upon which relief can be granted. Because these defects cannot be cured, the Complaint must be
dismissed in its entirety without leave to amend. In the alternative, the SFDSA requests that this Cour
strike all the irrelevant material remaining in the Amended Complaint, including the Class allegations.
A. Plaintiff’s Claims are Subject to Demurrer.
Under California law, a “demurrer tests the pleadings alone” and lies “where the defects appea
on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70).” SKF Farm.
v. Superior Court, 153 Cal. App. 3d 902, 905 (1984). Here, the pleadings show such a defects. Because
these defects apparent on its face, the Amended Complaint is subject to demurrer without leave t
amend.
A demurrer is proper where, as here, Plaintiffs lack standing to sue. See Cal. Code. Civ. Pr
431.10; County of Fresno v. Shelton, 66 Cal. App. 4° 996 (1998) (lack of standing is proper subject for al
demurrer). Plaintiff's eighth cause of action is also subject to demurrer because it uncertain under CCP §
431.10(f), as it is both ambiguous and unintelligible. As these defects cannot be cured by amendment.
the demurrer as to the entire Amended Complaint must be sustained without leave to amend.
A. Plaintiffs Lack Standing to Bring the Sixth Cause of Action.
California Code Civil Procedure § 367 requires that a claim be prosecuted by the real party
interest. “A real party in interest ordinarily is defined as the person possessing the right sued upon by
reason of the substantive law.” Here, none of the Plaintiffs have such an interest.
1, Plaintiffs Owyang, Tilton, Leake and Taylor Lack Standing to bring the Sixth Cause of
Action.
The sixth cause of action incorporates Paragraphs 52 to 67 and states that “[t]he failure of
Defendants SFDSA and DAVID WONG to permit Plaintiffs to inspect the accounting books and records,
of the SFDSA is in violation of Corporations Code §§ 6333 and 6334.” (Amended Complaint [*AC”] q
165.) However, those paragraphs allege that only Plaintiffs Arata and Pecot have made proper demands
to the SFDSA which have been denied. (See AC 4 52-62.)
3
MPA IN SUPPORT OF SFDSA’S NOTICE OF DEMURRER AND DEMURRER TO AMENDED
COMPLAINTCal Corp. Code § 6333 allow for the inspection of records “upon written demand” while § 6334
allows that directors have the right to inspection of records at a reasonable time. There are no allegations
that any Plaintiffs other than Arata and Pecot made a written demand to inspect the books, or that
Taylor, the only other alleged director, made any request to inspect and copy the books at a reasonable
time, much less that these demands were denied. This lack of demand by the other Plaintiffs is
emphasized when looking at Paragraphs 113 to 125 of the Second Amended Complaint filed by in
Plaintiffs’ original federal case. (RIN Exhibit 3.) There, the exact same allegations were made. It is
clear from the identical language in the two pleadings that since that case was filed in 2009, no
additional requests made by any Plaintiffs were denied. Thus, Plaintiffs Owyang, Tilton, Leake and
Taylor lack standing to bring the remaining claims against the SFDSA because the complaint makes
clear they never made a proper request under the cited code sections.
2. Plaintiffs Pecot and Arata also Lack Standing to Bring the Sixth Cause of Action.
Pecot and Arata also lack standing to bring these claims but for a different reason. The Amended
Complaint states that Pecot and Arata were both members (and Pecot was a Sergeant at Arms) when
their demands to see the records were made. (AC 4 6,7, 52-65.) Yet the Amended Complaint also
makes clear that both Pecot and Arata were no longer members of the SFDSA by May 2, 2008. (AC 4
86.) Originally, Pecot and Arata were challenging the actions which lead to their removal from the
SFDSA (See RIN Exhibit 1, §§] 68, 77-85, 166-16
Preview
Lara Cullinane-Smith, SBN 268671 SHREM & SMITH 11720 San Pablo Ave, Suite C El Cerrito, California 94530 Se Telephone: 510-919-3214 FILE Email: lara@shremlaw.com Teooan. ene a, Attorneys for Defendant 07/17/2015 SAN FRANCISCO DEPUTY SHERIFFS’ ASSOCIATION Clehof fre Cour Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOHNA PECOT, THOMAS ARATA, RICH Case No. CGC - 10 -501168 OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR, Individually DECLARATION OF LARA and on behalf of all other similarly situated, CULLINANE-SMITH IN SUPPORT OF SAN FRANCISCO DEPUTY Plaintiffs, SHERIFF’S ASSOCIATION’S v. OPPOSITION TO MOTION TO CONTEST GOOD FAITH SAN FRANCISCO DEPUTY SHERIFF’S SETTLEMENT ASSOCIATION, a California Nonprofit Corporation, SAN FRANCISCO DEPUTY Date: July 30, 2015 SHERIFF’S FOUNDATION, a California Time: 9:30 a.m. Nonprofit Corporation, DAVID WONG, an Dept: 302 individual, MICHAEL ZEHNER, an individual, BRIAN SAVAGE, an individual, SHEDRICK. McDANIELS, an individual, and DOES 1-100, Defendants. I, Lara Cullinane-Smith, declare as follows: 1) Ihave personal knowledge of the information set forth herein, unless noted on information and belief, all of which is true and correct of my own personal knowledge, and if. called upon to testify, I could and would competently testify thereto. 2) T represent the San Francisco Deputy Sheriffs’ Association (“SFDSA”) in this action. 3) I hereby certify that Exhibits 1 to 4 attached hereto, specifically the Settlement Agreement, Wong’s Arbitration Demand, the Arbitration Award, and the SFDSA’s Demurrer to the First Amended Complaint (without exhibits) are true and correct copies of those documents. NECTAR ATION OFT AR A CLIT T INANE_SMITH4) On June 9, 2015, I caused a copy of the SFDSA’s proposed Motion for Sanctions and all accompanying pleadings, exhibits and declarations to be hand served on Lawrence Murray, counsel for David Wong, at his place of business at 1781 Union Street, San Francisco, California, 94123, in accordance with CCP § 877 et seq. 5) My client, the SFDSA, has paid the award of the Arbitrator in the fees arbitration in full. 6) As a result of the settlement between Wong and the SFDSA, attached hereto as Exhibit 1, David Wong produced electronic copies of the SFDSA records he had taken from the SFDSA when he left the Presidency. Those documents were not a full set of the documents which were produced in the Federal Case, which I have reviewed at Plaintiffs’ counsel’s office, and which are not otherwise in the possession of the SFDSA. The Plaintiffs have been allowed to review all relevant documents which are in the SFDSA’s possession. 7) Ihave over 15 years of experience in commercial and business litigation. I have reviewed this case and believe that the SFDSA would likely prevail in its arguments that it has no liability because the Plaintiffs have issues regarding standing and because the SFDSA would likely not be liable for failing to allow review of, or concealing, books and records which were not in its possession but were in possession of Wong at the time the suit was filed. 8) In my experience, the settlement amount between the SFDSA and the Plaintiffs is reasonable because while I believe the SFDSA would prevail, the settlement takes into account the costs of proceeding with discovery and pre-trial motions, as well as the inherent risk in going forward with litigation. The settlement is a result of a long, arms-length negotiation between myself and Plaintiffs’ counsel and was reached in good faith, without any intent to harm Wong in any way. NECT AR ATION ORT AR A CTITT INANE.SMITHI declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct and that this declaration was executed in El Cerrito, California on July 17, 2015. Lara Cullinane-Smith, Esq. NECTAR ATION OFT AR A CTITT INNANE_SMITHTEXHIBIT 1SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement (“Agreement”), effective February 18, 2013, is made and entered into by and among the following Parties (as defined below): (i) the Deputy Sheriff's Association of the City and County of San Francisco, d/b/a/ “San Francisco Deputy Sheriffs’ Association “SFDSA"):(ii) the San Francisco Deputy Sheriffs’ Foundation (the “SFDSF”); (iii) and David Wong. The Agreement is intended by the Settling Parties to resolve, discharge, and settle the Released Claims (as defined below), upon and subject to the terms and conditions hereof. A. The Litigation On or about April 15, 2009, Johna Pecot, Thomas Arata, Richard Owyang, Stephen Tilton, Joseph Leake and Oscar Taylor (collectively referred to as the “Pecot Plaintiffs”) against the San Francisco Deputy Sheriff's Association, David Wong, Michael Zehner, Brian Savage, and Shedrick McDaniels in the U.S. District Court for the Northern District of California (N.D.Cal. Case No. CV 08-5125 CRB) (“Pecor I’) alleging purported causes of action arising under 18 U.S.C. §§ 1862, et seq., California Corporations Code §$§ 5150, 5223, 5342, 6333 and 6334, Breach of the SFDSA’s Bylaws and Constitution. On or about June 30, 2010, Johna Pecot, Thomas Arata, Richard Owyang, Stephen Tilton, Joseph Leake, and Oscar Taylor filed a lawsuit in the Superior Court for the County of San Francisco (Case No. CGC-10- 501168)(“Pecor I’) against the SFDSA, SFDSF, David Wong, Michael Zehner, Brian Savage, and Shedrick McDaniels alleging purported causes of action for breach of contract, interference with performance of contract, fraud, unfair competition, and conspiracy, denial of access to corporate records; wrongful expulsion of corporation members; defamation. On or about July 23, 2012, the SFDSA filed a lawsuit against the SEDSF and David Wong in the U.S. District Court for the Northern District of California (N.D. Cal. Case No, CV-12-3823) (the “Trademark Action”) for violations of the Lanham Act, common law unfair competition, declaratory judgment, breach of fiduciary duty, and violation of California Business and Professions Code §§ 17200, et seq. On or about November 29, 2012, the SEDSA filed a lawsuit against the SFDSF and David Wong in the Superior Court for the County of San Francisco (Case No. CGC-12-526487) (the “Conversion Action”), alleging causes of action for conversion, and injunctive relief. David Wong has moved for leave in the Trademark Action to file a counterclaim for the logo utilized by the SFDSA. Wong, for acting as an SFDSA official, is seeking indemnity from the SFDSA for all of his fees and costs, Wong and his attorneys seek the payment of fees and costs in each case, even if Wong is found to have violated a law, rule or statute. Labor Code section 2802, and O'Hara v. Teamsters, Mi il Dv. 4 Ss D> - DeSETTLEMENT AGREEMENT AND MUTUAL RELEASE 2 Between SFDSA, SFDSF, and David Wong February 18, 2013 Page B. TERMS 1.) Within 30 calendar days of the signing of this Settlement Agreement, the San Francisco Deputy Sheriffs’ Foundation will present to the California Secretary of State Amend Articles Of Incorporation and any and all other amended documents necessary to seek an amendment of the Articles of Incorporation for the San Francisco Deputy Sheriffs’ Foundation to change the name and identity of the corporation to the “Bay Area Deputy Sheriffs’ Charitable Foundation.” 2.) Within 30 calendar days of receiving the Amended Articles Of Incorporation the SFDSF will amend its designation with the Internal Revenue Service in order to become known as the “Bay Area Deputy Sheriffs’ Charitable Foundation.” Upon receipt of filed Amended Articles of Incorporation demonstrating a name change of the SFDSF to “Bay Area Deputy Sheriffs Charitable Foundation,” the SEDSF will send out a letter to its members in conformity with Exhibit “A,” attached hereto. 3.) Within fourteen calendar days of signing this Agreement, the San Francisco Deputy Sheriffs’ Foundation will cease distribution of any and all pens, “T-shirts, clothing, and other items used to promote San Francisco Deputy Sheriffs’ Foundation and/or bearing the name “San Francisco Deputy Sheriffs’ Foundation” or “San Francisco Deputy Sheriffs’ Association Foundation” and/or the SEDSA logo. Until the SFDSF receives its Amended Articles of Incorporation from the California Secretary of State, the SFDSF may refer to itself as the “San Francisco Deputy Sheriffs’ Foundation.” 4.) The SFDSA waives any claims for the return of client lists derived, compiled, or otherwise assembled by the San Francisco Deputy Sheriffs’ Foundation since its inception in October 2004. 5.) At no time will the SFDSA, David Wong, the SFDSF, or the Bay Area Deputy Sheriffs Charitable Foundation, or any of their affiliates, adopt, act as, or utilize the names “San Francisco Deputy Sheriffs’ Foundation,” “San Francisco Deputy Sheriffs’ Charitable Foundation,” or the “San Francisco Deputy Sheriffs’ Association Foundation” in any activity representation or solicitation. No party will authorize any individual or entity to use such names. David Wong, the SFDSF, and the Bay Area Deputy Sheriffs’ Charitable Foundation shall not adopt, act as, or utilize any name employing the phrase “San Francisco Deputy Sheriffs” in any activity or solicitation. Notwithstanding this Paragraph, the SFDSF may continue to use the name “San Francisco Deputy Sheriffs’ Foundation” and logo until the SFDSF receives the Amended Articles of Incorporation. If for any reason the California Secretary of State rejects the Amended Articles of Incorporation changing the SFDSF’s name to Bay Area Deputy Sheriffs’ Charitable Foundation, the parties shall promptly meet and confer to select a mutually agreeable alternative name for the SEDSF. : 6.) The Bay Area Deputy Sheriffs’ Charitable Foundation shall inform all interested parties and members of the public who inquire that it is not in any way affiliated with, sponsored by, or endorsed by the SFDSA. 7.) David Wong hereby assigns the SFDSA any and all rights title and interest in SFDSA’s logo, a copy of which is attached to this agreement as Exhibit B upon the receipt of a check in the amount of $1000 made payable to David Wong. The SFDSF agrees to use the name Bay Area Deputy Sheriffs’ Charitable RI LO SeSETTLEMENT AGREEMENT AND MUTUAL RELEASE 3 Between SFDSA, SEDSF, and David Wong February 18, 2013 Page Foundation the logo attached as Exhibit C, as the logo of the Bay Area Deputy Sheriffs’ Charitable Foundation in which the words “Bay Area” replace the words “San Francisco” in the existing logo and the word Charitable” goes in the ribbon. The SFDSA irrevocably consents to the use of the name and image and logo of the Bay Area Deputy Sheriff's’ Charitable Foundation as demonstrated in Exhibit C. The SFDSF shall abandon its application for the contested logo. The SFDSF and David Wong will not oppose registration of the SFDSA’s trademarks. 8.) As and for additional consideration the SFDSA will receive from David Wong a copy of the documents in his possession which are the property of the SFDSA. These documents will be provided within seven calendar days after signing this Settlement Agreement. David Wong will present a copy of any and all emails and or information on SFDSA members which would contain information as specified in Penal Code sections 832.5 and 832.7 and any other applicable statues, cases or State or Federal constitutions affecting the privacy of the DSA current or former members within seven calendar days of signing this Settlement Agreement. To the extent that any information contained in the documents is information of current or former members as specified in Penal Code sections 832.5 and 832.7 and any other applicable statues, cases or State or Federal constitutions affecting the privacy of the DSA current or former members, those documents shall be removed from any computers connected to the internet and shall be stored in an area accessible only to David Wong and/or his counsel and may not be used for any purpose or disseminated at any time whatsoever by David Wong. To the extent that there is any dispute about the documents produced, the parties agree to submit them to Hon. William Cahill (Ret.). Said production of documents shall be certified as to completeness and veracity by Hon. William Cahill (Ret.) To the extent that the SFDSF’s documents are in the possession and control of the SFDSA or its lawyers, those documents will be returned to Lawrence Murray on behalf of the SFDSF within fourteen calendar days. 9) It is the intention of the Parties to be legally bound by the terms and conditions of this Settlement Agreement, and in furtherance of that intention, the Parties expressly waive any and all rights and benefits conferred or which may be conferred upon them by the provisions of Section 1542 of the California Civil Code, and any similar law or laws of any state or territory of the United States or any other country in the world. Section 1542 reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” General Release and Waiver of All Claims. David Wong and the SFDSF unconditionally, irrevocably and absolutely release and discharge the SFDSA, as well as any of its present or former employees, officers, agents, attorneys, affiliates, successors, assigns and any other representative of the SFDSA (collectively “Released Parties”) from all causes of action, judgments, liens, indebtedness, damages, losses, claims, liabilities, and demands of any kind, known or unknown, including attorneys’ fees and costs, which David Wong and/or the SFDSF may have against the Released Parties, arising from, or in way related to the allegations in Pecot II, the Trademark Action and the Conversion Action. This release shall not apply to eo Tipe ' aSETTLEMENT AGREEMENT AND MUTUAL RELEASE 4 Between SFDSA, SEDSF, and David Wong February 18, 2013 Page claims David Wong and the SFDSF may have against Johna Pecot, Thomas Arata, Rich Owyang, Stephen Tilton, Joseph Leake, and Oscar Taylor. The SFDSA unconditionally, irrevocably and absolutely releases and discharges the David Wong and the SFDSF, as well as any of its present or former employees, officers, agents, attorneys, affiliates, successors, assigns and any other representative of the SFDSA (collectively “Released Parties”) from all causes of action, judgments, liens, indebtedness, damages, losses, claims, liabilities, and demands of any kind, known or unknown, including attorneys’ fees and costs, which David Wong and/or the SFDSF may have against the Released Parties, arising from, or in way related to the allegations in Pecot II, the Trademark Action and the Conversion Action. 10. Each party hereto warrants and represents that they have read, and that they understand, all of the provisions contained herein. This Settlement Agreement is signed freely by each party. Each person signing below in a representative capacity for a party has authority to bind that party. 11. Each party hereto represents and warrants that they have consulted with their own attorney concerning and participated in the drafting of each of the terms contained in this document. No inference, assumption, or presumption shall be drawn from the fact that one party or its attorney prepared this Settlement Agreement. It shall be conclusively presumed that each party participated in the preparation of this Settlement Agreement. 12. Each party hereto agrees that this document, and the interpretation thereof, shall be governed by the laws of the State of California. 13. Except as otherwise provided in this Settlement Agreement, each party hereto agrees that, should any action, arbitration or other proceeding be instituted in order to enforce the provisions of this Settlement Agreement, each party will bear its own attorneys! fees and costs, including expert witness fees. The site of venue for all purposes in interpretation and enforcement of this Agreement is in San Francisco County, California. 14. Each of the parties hereto understands that each of the terms and conditions set forth herein are contractual and material to this Settlement Agreement as a whole, and that none of the terms or conditions contained herein is a mere recital. 15. This Agreement is the entire agreement between the Parties. No representation, recital, or factual rendition is of any moment or effect if not contained in this Settlement Agreement. If any part of this Agreement is determined to be unenforceable, the remaining provisions shall be enforced. This Settlement Agreement may be executed in counterparts, each of which will be deemed an original. Facsimile signatures will have the same force and effect as original signatures. 16. Each Party shall, upon the other's reasonable request, take all steps and execute, acknowledge, and deliver to the others all further instruments necessary or expedient to effectuate the purposes of this Settlement Agreement. Each party will further not take any action which would interfere with the performance of this Settlement Agreement or which would adversely affect any of the rights provided herein. Be) KD se BRDSETTLEMENT AGREEMENT AND MUTUAL RELEASE 5 Between SFDSA, SFDSF, and David Wong February 18, 2013 Page 17 The Parties acknowledge this Settlement Agreement is contingent on the SFDSA’s Board ratifying it. The SFDSA agrees to call a special Board meeting to ratify this Settlement Agreement within seven (7) calendar days of signing it. The SFDSA shall promptly notify Lawrence Murray once the Settlement Agreement is ratified. Cc. Resolution of Fee Dispute — Any claims SFDSF and David Wong and their attorneys, Murray & Associates, Lawrence D. Murray, and Michael Bosworth, may assert against the SFDSA for attorneys fees and costs shall be resolved by binding arbitration pursuant to JAMS Rule 33 for Final Offer Arbitration before the Hon. William Cahill. This agreement to arbitrate all claims for fees by and behalf of attorneys for the foundation shall only be binding if the arbitration is held by the Hon. William Cahill or another JAMS member agreed to by the Parties. Said arbitration will occur at the earliest opportunity. The parties agree that the DSA will not be responsible for any fees or costs arising out of any future claims, motions or litigation brought by David Wong or the Wong Defendants against the Pecot plaintiffs arising or relating to the Pecot J claims after February 18, 2013. D. Resolution of All Other Disputes Arising Out of this Settlement Agreement— It is hereby agreed by and between the parties to this agreement that any claims arising out of this Settlement Agreement shall be decided in JAMS arbitration before the Hon. William Cahill and only before judge Cahill or any other JAMS member agreed to by the Parties, Said arbitrations shall occur pursuant to JAMS rules. For the San Francisco Deputy Sheriff's Association For the San Francisco Deputy Sheriffs’ Foundation a SEDSA FRESIOENT heL ba “Biv LIG Ey Corgee Yer Srose Abel mn Sieongely, fy G7 PEeeEeE eee reece eee Seas? LEDNAED My KEERL v Dee amore FoundaWe would like to take this opportunity to announce the creation of a Bay Area organization, which is the efforts of deputy sheriffs throughout the Bay Area to support our communities. Today, the “Bay Area Deputy Sheriffs Charitable Foundation” has begun a track to expand the benefits to our community beyond the borders of San Francisco. We, the Deputy Sheriffs of the Bay Area, who have formed and operate this organization, wish to raise the bar to challenge the entire bay area to work with us to help the less fortunate and assist our neighbors, which is a benefit to us all. We are not affiliated with the San Francisco Deputy Sheriffs Association. We are in the process of identifying those communities where we could be most effective in making a change and the difference. We would like your thoughts and assistance in how we as a group can benefit our entire Bay Area with this much impact as possible given our limited resources. We hope to hear from you in the near future. Dud ae 7 Ex 8:7 A *Fehibit BoCase4:12-cv-L_323-SBA Document32 Filed11/14/.. Page38 of 38 Boy Area Detury Sterees Cranage Feu wDAaTion : lc.EXHIBIT 2Lawrence D. Murray (SBN 77536) MURRAY & ASSOCIATES 1781 Union Street San Francisco, CA 94123 Tel: (415) 673-0555 Fax: (415) 928-4084 James A. Lassart Ropers Majeski Kohn & Bentley 75 Broadway Ste 202 San Francisco, CA 94111 Tel: (415) 543-4800 Fax (415) 972-6301 Attorneys for Claimant David Wong: SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO In Re Arbitration Claims Against The DEPUTY JAMS CASE NO: 1100072797 SHERIFFS ASSOCIATION OF THE CITY AND COUNTY OF SAN FRANCISCO, NOTICE OF CLAIM BY DAVID. WONG (JAMS Comprehensive Arbitration Rule #9) Pursuant to the “SETTLEMENT AGREEMENT AND MUTUAL RELEASE,” dated February 18, 2013, between the Deputy Sheriff's Association of the City and County of San Francisco, (“DSA”); David Wong, (“Wong”) and San Francisco Deputy Sheriff's Foundation, (“F oundation”) Section C, Resolution of Fee Dispute, David Wong and the San Francisco Deputy Sheriffs Foundation submit the following as their claim for fees under said section against the Deputy Sheriffs Association of the City and County of San Francisco. The Settlement Agreement recites each of the four cases upon which David Wong was sued, and now seeks indemnity here, by reason of his position or association with the DSA. The Agreement then states: Wong, acting as a DSA official, is seeking indemnity from the DSA for all of his fees and costs. Wong and his attorneys seek the payment of fees and costs in each case, even if Wong is found to have violated a law, rule or statute. Labor Code section 2802 and O’Hara v. Teamsters. The Settlement Agreement agrees to resolution of these fees as follows: DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Pagel NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)C, Claim: Fees for All Litigation, Including This Fee Arbitration — Any claims SFDSF and David Wong and their attorneys, Murray & Associates, Lawrence D. Murray, and IPxLaw Group LLP and Michael Bosworth, may assert against the SFDSA for attorneys fees and costs shall be resolved by binding arbitration pursuant to JAMS Rule 33 for Final Offer Arbitration before the Hon. William Cahill. This agreement to arbitrate all claims for fees by and on behalf of attorneys for the foundation shall only be binding if the arbitration is held by the Hon. William Cahill or another JAMS member agreed to by the Parties. Said arbitration will occur at the earliest opportunity. ‘The parties agree that the DSA will not be responsible for any fees or costs arising out of any future claims, motions or litigation brought by David Wong or the Wong Defendants against the Pecot plaintiffs arising or relating to the Pecot J claims after February 18, 2013. There are five components of the fees being sought, these four cases and the fees generated seeking indemnity. In each instance, Murray and Associates performed successfully in securing a dismissal of all claims made by the Pecot Group and the DSA, (with one lingering claim properly asserted against the DSA only) as well as granting of a dismissal with prejudice in Case 1, and the granting of a SLAPP order for the individual defendants in Case 2. The DSA has now dismissed with prejudice Case 3, and Case 4 will likely be dismissed on motion of Wong and the Foundation shortly. Case #1 Pecot et al. v. DSA, David Wong, RICO ~ Federal Court The first suit was filed by Jobna Pecot and others in US District Court claiming that Wong, as the DSA President, was running the DSA as a criminal enterprise, by forming and operating the Foundation. The first suit claimed Wong breached his fiduciary duty to the DSA. It tied the Foundation as the necessary “enterprise” for the RICO allegations. That case, entitled Pecot et al. v. San Francisco Deputy Sheriffs Association, David Wong, US District Court case number CV ~ 08 — 5125 — CRB contended that Wong formed the Foundation illegally. (Previously Submitted Binder, “PSB” Exhibit DD As to these claims, the Board of Directors accepted the findings of the investigative committee that Wong had done nothing wrong. Each complaint was found to be without merit. After filing suit, the DSA again conducted an investigation, concluding that Wong and the other officials didn’t do anything wrong and the suit should be dismissed. These findings were the basis for a motion to dismiss with prejudice brought on behalf of Wong by Murray. (PSB Exhibit 2) The fees associated with Case #1 — Murray & Associates $ 49,925.25 Less DSA payments: — $ 29,110.00 Remaining Unpaid: $ 20,815.25 DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 2 NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)The theory of the DSA’s obligation for Wong’s fees is: (a) Indemnity under Labor Code Section 2802 and O’Hara v. Teamsters; (b) Resolution of the Board of Directors obligating the DSA for fees associated with this case; and (c) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA (d) Quantum meruit Case #2 Pecot et al. v. DSA, David Wong, RICO — State Court The second case (Pecot II) was brought in Superior Court with the same title, case number CG C — 10 - 501168, on identical allegations as the case just dismissed in federal court. (PSB Exhibit 7) A detailed diagram of the identical allegations, shifting from one location in the complaint to another, is set! out in that exhibit. It was also was the subject of a “Safe Harbor” letter, Civil Code Section 128.5. During a meeting of defense counsel at the start of this case Murray urged counsel for the DSA, Lara Cullinane-Smith, to file a SLAPP motion. He was filing a SLAPP motion for the individual defendants. They declined. The SLAPP motion for Wong and the individual defendants was granted in July 2011 and the motion for reconsideration has dragged on for almost two years with a tentative ruling that it is denied. The DSA would likely have gotten out also had it filed a SLAPP motion at that time, or at least joined in the motion. It was Murray who then went about setting up and instituting the SLAPP motion, declarations, exhibits and objections to evidence on the basis that the elections and the arguments raised in the elections were protected, Even though the SLAPP motion that was filed was denied in the tentative ruling, Murray continued to go forward contesting the tentative ruling. It was only after oral argument that the court indicated that it would consider the arguments and, after argument, that the Court issued a ruling granting the SLAPP motion. The Foundation appeared at the hearing, stated they were joining in, and secured a dismissal, though they did not file any paperwork designating they joined. The DSA did not even file a joinder, where it could have secured a dismissal. The fees associated with Case #2 — Murray & Associates $ 173,264.25 The theory of the DSA’s obligation for Wong’s fees is: (a) Indemnity under Labor Code Section 2802 and O’Hara v. ‘Teamsters; (b) Resolution of the Board of Directors obligating the DSA for fees associated with this case; and (c) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA. (4) Quantum meruit Case #3 DSA v. Foundation & David Wong, Trademark, “SF Deputy Sheriff” — Fed Court DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 3 NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)The third case was filed by the DSA against Wong to recover the use of the name “San Francisco Deputy Sheriff.” (PSB Exhibit 14) Although the DSA chose the name for the entity, set up the Foundation, paid the fees for its formation, and openly assisted the Foundation to function, it claims a right to end the Foundation’s use of the name and sue Wong for a breach ofa fiduciary duty in setting up the Foundation. Wong was sued on the theory that as a DSA officer and President, that he breached of his fiduciary duty to the union by forming the Foundation. This was in direct contradiction to the findings by two investigative committees, and the results which were accepted by the board. Wong, through Murray & Associates, filed a Motion for Judgment on the Pleadings, seeking dismissal of the Amended Complaint without leave to amend, and leave to file an Amended Answer with Counter-Claims to preserve the claims for copyright violation of the logo in issue as attached to the Amended Complaint, Exhibits A and B, should this matter continue. (PSB Exhibit 17, 18, 19) This case required the assistance of a specialist, Attomey Mike Bosworth for guidance, direction, research, and advice on the subtleties of trademark, trade name and copyright law. Bosworth was originally hired by the Foundation to set up the Trademark for the Foundation, which was now the subject of the suit. In the Motion to Dismiss, generic use, descriptive use, consent, estoppel, latches and fair use were each presented as part of the defense of the case, as well as the those theories applying to the use of the logo, where the copyright ownership of the DSA’s logo was asserted on behalf of its author, David Wong. The motion to dismiss was on the grounds that David Wong committed no act independent of the Foundation itself. Immediately after the motion was filed, the case settled. Since Wong was sued for breach of his fiduciary duty to the DSA for acting as a DSA official, the DSA is required to pay his fees in case three, even if Wong is found to have violated a law, rule or statute. And, even if any such action had been deemed. material, which is not the case, there is no such finding. Labor Code Section 2802. O’Hara v. Teamsters (Exhibit 9) The fees associated with Case #3 — Murray & Associates $ 1 15,712.50 Michael Bosworth $ 20,416.49 The theory of the DSA obligation for Wong’s fees is (a) Indemnity under Labor Code Section 2802 and O’Hara v. Teamsters; (b) Resolution of the Board of Directors obligating the DSA for fees associated with this case, and (c) Rule 11, Federal Rules of Civil Procedure, with a Safe Harbor letter (c) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA (d) Quantum meruit DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 4 NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)Case #4 DSA v. Foundation & David Wong, Possession of Info & Computer, — State Court The DSA filed a fourth suit against Wong and the Foundation for the return of documents (in paper or on the computer, (PSB Exhibit 23, Complaint {1 6, 10). The DSA admits in their complaint that Wong and the Foundation rely on these documents in the first three actions to protect themselves from liability, even the liability claimed in the third suit (PSB Exhibit 23, Complaint J 18). In this suit, the DSA sued to strip Wong of these very documents needed for his defense. (Complaint Prayer ] 4, page 5, “return of all property...”) The DSA seeks to interfere with Wong’s right to discovery, received. in Federal Court from Case #1 which has been used in all three cases to defend himself. (PSB Exhibit 23, Complaint $18) The suit also claims that the DSA owns the computer in Wong’s possession. However, Wong in his Safe Harbor letter provided to the DSA lawyer copies of Wong’s credit card receipts by which the computer was purchased. Regardless, the DSA would not withdraw the suit. All of the documents in Wong’s possession, (hence attributed to the Foundations? possession) are} from discovery in the first suit, the Federal Suit, (¢.g., a court proceeding protected by SLAPP.) There are no documents from any other source in Wong’s possession. The DSA was informed about that repeatedly, and elected to go ahead anyway. (PSB Exhibit 22, letter to January 4, 2013) As a litigant in a federal court proceeding, Wong has a right to acquire, hold, review and use such discovery documents. (Federal Rules of Civil Procedure § 26(a)) Further, since acquisition and possession are part of a judicial proceeding, such acquisition and possession is protected activity under a SLAPP motion (PSB Exhibit 24), Motion to Strike (PSB Exhibit 25) and Demurrer (PSB Exhibit 26) are pending. Even if Wong had other documents, and sensitive documents of the SFDSA, as a member of the board of directors, he has an absolute right and a qualified right to possess SFDSA documents. (See below) Even the SFDSA Bylaws mandate the right to SFDSA documents. The fees associated with Case #4 — Murray & Associates $ 46,587.50 The theory of the DSA’s obligation for Wong and the Foundation’s fees are (a) Indemmnity under Labor Code Section 2802 and O'Hara v. Teamsters; (b) Resolution of the Board of Directors obligating the DSA for fees associated with this case, and (c) SLAPP motion filed with dismissal under Settlement Agreement shortly thereafter by DSA, (d) Safe harbor letter sent, lack of good faith belief in facts of their case, and no efforts taken to seek dismiss, hence liability for fees under Civil Code Section 128.7 (e) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA () Quantum meruit DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 5 NOTICE OF CLAIM BY DAVID WONG (SAMS Comprehensive Arbitration Rule #9)Case #5 Fees Arbitration As a result of the cases, Wong necessarily incurred fees for his defense. However, separate from that, as a result of the DSA’s refusal to carry out its responsibility for payment of fees, Wong has incurred additional expenses and fees while secking indemnity. This is the fifth component of his claim. Civil Code Section 2802 requires indemnity for “af that the employee necessarily expends or loses.” In mediation and argument to the arbitrator, the DSA offers no persuasive reason why “all” shouldn't be read to mean just that. In fact, having admitted that “all” expenses include attorney's fees incurred in the original O'Hara action, the Union in that case was ruled to be responsible for even the fees seeking fees. That Court noted that it was an especially difficult argument for the DSA because if fees incurred in enforcing indemnity claims were excluded, the right to claim fees incurred in the original action would be effectively eliminated. An employer who wished to avoid paying an employee who had proven a right to indemnification under § 2802 could simply refuse; secure in the knowledge that it might very well cost the employee more to enforce his rights under § 2802 than the amount expended in the original action. Such was the situation in the present case, where Catherine Leal incurred larger fees in the process of enforcing her indemnification claim under § 2802 than in defending and settling the underlying action with OHara. The costs expended in seeking indemnity: Payments to JAMS $ 10,351.18 The fees associated with Case #5 — Murray & Associates $ 10,000 anticipated James A. Lassart — $ 20,000 anticipated The theory of the DSA obligation for Wong’s fees is: (a) Indemnity under Labor Code Section 2802 and O’Hara v. Teamsters; (b) Resolution of the Board of Directors obligating the DSA for fees associated with this case. (c) Agreement by the DSA to be responsible for fees in defending these individual officers of the DSA (d) Quantum meruit Ml Mt Mf Mf Mt Mt DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 6 NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)The total claim for all fees and costs are claimed on behalf of David Wong is $ 370,560.08. Date: May 9, 2013 Respectfully submitted, MURRAY & ASSOCIATES awrénce D. Murray Attémey for Claimant David Weng DSASF. vs. SFDSF, et al.; San Francisco Superior Court Case No. CGC — 12 -526487 Page 7 NOTICE OF CLAIM BY DAVID WONG (JAMS Comprehensive Arbitration Rule #9)EXHIBIT 3Hon. William J. Cahill Ret.) JAMS Two Embarcadero Center, Suite 1500 San Francisco, CA 94111 Phone: 415-774-2662 Fax: 415-982-5287 Email: jnixon@jamsadr.com JAMS REFERENCE NO. 1100072797 In re San Francisco Deputy Sheriffs’ FINAL ARBITRATION AWARD Association L DU! N This arbitration was conducted under the terms set forth ina February 18, 2013 Settlement Agreement and Mutual Release (“Agreement”). The three parties to that Agreement are the Deputy Sheriff's Association (‘SFDSA”) (the respondent in the arbitration), the San Francisco Deputy Sheriffs’ Foundation (“SFDSF”) and David Wong (“Wong”) (claimant in the arbitration). The Agreement resulted in four separate cases being resolved. The four cases resolved by the settlement were: 1 Pecot, et.al, v. SFDSA, Wong, et.al, (N.D. Cal. Case No. CV 08-5125 CRB) (“Picot I”). 2. Picot, et., al. v. SFDSA, et., al, (San Francisco Superior Court Case No. CGC- 10-501168 (“Picot II’). 3. SFDSA v. SFDSF, et., et., al., (N.D. Cal. Case No. CV 12-3923) (“Trademark Action’). 4, SFDSA v. SFDSF, et., al, (San Francisco Superior Court Case No. CGC-12- 526487) (“Conversion Action”). 1|PezeThe arbitration hearing was before the Hon. William Cahill (Ret.) and held in the San Francisco offices of JAMS and under paragraph C. of the Agreement which reads: G Res i fFee Any claims SFDSF and David Wong and their attorneys, Murray & Associates, Lawrence D. Murray and IPxLaw Group LLP and Michael Bosworth, may assert against the SFDSA for attorneys’ fees and costs shall be resolved by binding arbitration pursuant to JAMS Rule 33 for Final Offer Arbitration before the Hon. William Cahill. This agreement to arbitrate all claims for fees by and behalf of attorneys for the foundation shall only be binding if the arbitration is held by the Hon. William Cahill or another JAMS member agreed by the Parties. The parties agree that the DSA will not be responsible for any fees or costs arising out of any future dclaims, motions or litigation brought by David Wong or the Wong Defendants against the Pecot plaintiffs arising or relating to the Pecot I claims after February 18, 2013. D. Resolution of All Other Disputes Arising Out of this Settlement Agreement. It is hereby agreed by and between the parties to this agreement that any claims arising out of this Settlement Agreement shall be decided in JAMS arbitration before the Hon. William Cahill and only before judge (sic) Cahill or any other JAMS member agreed to by the Parties. Said arbitrations shall occur pursuant to JAMS rules, U. JAMS RULE 33 As set forth in the Agreement, the hearing was held pursuant to JAMS Comprehensive rule 33. At the hearing, the parties confirmed that JAMS Rule 33 applied. In pertinent part that Rule provides (bold added): Rule 33. Final Offer (or Baseball} Arbitration Cption (a) Upon agreement of the Parties to use the option set forth in this Rule, at least seven (7) calendar days before the Arbitration Hearing, the Parties shall exchange and provide to JAMS written proposals for the amount of money damages they would offer or demand, as applicable,and that they believe to be appropriate based on the standard set forth in Rule 24(c).... At any time prior to the close of the Arbitration Hearing, the Parties may exchange revised written proposals or demands, which shall supersede all prior proposals... (b) If the Arbitrator has been informed of the written proposals, in rendering the Award the Arbitrator shail choose between the Parties’ last proposals, selecting the proposal that the Arbitrator finds most reasonable and appropriate in light of the standard set forth in Rule 24(c). This provision modifies Rule 24(h) in that no written statement of reasons shall accompany the Award. (co)... UL The Parties Written Proposals. In his January15, 2014 brief, Mr. Lassart, on behalf of his clients made a written demand under Rule 33 of payment to Murray & Associates for $585,841.71 and for IPxLAW Group $25,728,72. In her January 29, 2014 brief, Ms, Smith, on behalf of her clients made a written Rule 33 offer of $125,000 in three monthly payments, $50,000, $50,000 and $25,000 with the first payment due in 30 days after the award. NW ECISION UNDER RULE 33. After review of the evidence, oral and written the arbitrator makes the following ruling:t IT IS HEREBY ORDERED: 1. Murray & Associates and IPxLAW Group are award a total of $125,000 to be paid, starting 30 calendar days from the date of this order in 3 payments. The first payment of $50,000 is to be made payable to the Murphy, Pearson, Bradley & Feeney trust account. The second payment of $50,000 is to be made thirty days thereafter (60 days after 1In an email dated January 29, 2014, Mr. Lassart objected to the arbitrator considering a new Exhibit A. That objection is SUSTAINED.this order), and the third payment of $25,000 to be paid in an additional 30 days (90 days after this order). 2. This order is the final determination of attorneys’ fees that are owed in regards to Picot J, Picot II, the Trademark case and the Conversion case, 3. This award is final pursuant to JAMS Comprehensive Rules. IT IS SO ORDERED. b/) DATE: March 31, 2014 } Judge William Cahill (Ret) JAMS 4| PeesEXHIBIT 4Lara Cullinane-Smith, SBN 268671 LAw OFFICE OF LARA C. SMITH 1086 Arlington Blvd. ELECTRONICALLY El Cerrito, California 94530 FILED Telephone: 510-919-3214 Superior Court of Catifomia, Email: laracsmith@gmail.com County of San Francisco Attorneys for Defendant Bee 2 i: Z oe SAN FRANCISCO DEPUTY SHERIFFS’ ASSOCIATION BY IWLLIAMT ALOE Deputy Clerk SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN FRANCISCO JOHNA PECOT, THOMAS ARATA, RICH Case No. CGC — 10 -501168 OWYANG, STEPHEN TILTON, JOSEPH LEAKE, and OSCAR TAYLOR, Individually MEMORANDOM OF POINTS AND and on behalf of all other similarly situated, AUTHORITIES IN SUPPORT OF SAN FRANCISCO DEPUTY SHERIFE’S Plaintiffs, ASSOCIATION’S NOTICE OF DEMURRER Vv. AND DEMURRER WITHOUT LEAVE AMEND TO PLAINTIFFS’ AMENDED SAN FRANCISCO DEPUTY SHERIFF'S COMPLAINT OR IN THE ALTERNATIVE, ASSOCIATION, a California Nonprofit MOTION TO STRIKE CERTAIN CLAIMS Corporation, SAN FRANCISCO DEPUTY SHERIFF’S FOUNDATION, a California Date: September 4, 2014 Nonprofit Corporation, DAVID WONG, an Time: 9:30 a.m. individual, MICHAEL ZEHNER, an individual, Dept: 302 BRIAN SAVAGE, an individual, SHEDRICK Reservation No. 072214-03 McDANIELS, an individual, and DOES 1-100, Defendants. COMES NOW Defendant Deputy Sheriffs’ Association of the City and County of San Francisco, d/b/a San Francisco Deputy Sheriffs’ Association ("SFDSA") and files this Memorandum of Points and Authorities in support of its Demurrer Without Leave to Amend, or, in the Alternative, Motion to Strike Certain Claims (the “Demurrer”). I. FACTS Plaintiffs’ filed the first Complaint in this action on June 30, 2010, alleging seven causes of 1 MPA IN SUPPORT OF SFDSA’S NOTICE OF DEMURRER AND DEMURRER TO AMENDED COMPLAINTN w action including Fraud and Concealment of Records pursuant to Corporations Code §§ 6333 and 6334. '! (Request for Judicial Notice [“RJN”] Exhibit 1.) There have been numerous motions, arguments ani orders in the case, including an order resulting from the individual defendants’ Motion for Judgment on] the Pleadings. That motion requested that the sixth cause of action be dismissed as to David Wong because it was not properly brought against an individual and because it was barred by res judicata. The order on this Motion, entered on September 12, 2013 states, in relevant part: Defendant David Wong’s, Michael Zehner’s, Brian Savage’s and Shedrick McDaniels’ Motio for Judgment on the Pleadings is granted with leave to amend. Plaintiffs have properly pled < cause of action under Cal. Corp Code §§ 6333 and 6334 and the Court grants leave to amend 4 allow Plaintiff the opportunity to separately state a cause of action for concealment. The Cou cannot look outside the face of the pleadings in ruling on a motion for judgment on the| pleadings. The sixth cause of action is not res judicata of the U.S. District Court case. (RIN Exhibit 2.) The SFDSA was not a party to that motion. On June 27, 2014, the Plaintiffs filed an! Amended Complaint, striking all of their previous causes of action except the sixth (Concealment of Books and Records), and adding a new eighth cause of action entitled only “Concealment.” (Smit Decl. Exhibit 1.) Because the Plaintiffs have no standing, and do not properly state a claim against the} SFDSA, the SFDSA now demurrers to the remaining two causes of action. IL. ARGUMENT Plaintiffs do not have standing to bring the remaining claims. Only two of the Plaintiffs are alleged to have made demands for the books and records and they have not been members of the SEDSAI since long before this action began. Because those two Plaintiffs no longer challenge their removal fro the SFDSA, they lack standing to bring this action. Because they made no demands that were denied, the other Plaintiffs also lack standing. Further, the new cause of action is improperly pled as it either creates| a tort unknown to California law or improperly pleads fraud. Further, there are no remaining causes o action which could be brought on behalf of a class and thus Plaintiffs have again failed to state a claim! ' For the purpose of a demurrer, the allegations in the pleading are taken as true, but by bringing this Demurrer, the SFDSA does not admit any of the allegations in the Amended Complaint, including that it is a public benefit corporation. 2 MPA IN SUPPORT OF SFDSA’S NOTICE OF DEMURRER AND DEMURRER TO AMENDED COMPLAINTny a oo upon which relief can be granted. Because these defects cannot be cured, the Complaint must be dismissed in its entirety without leave to amend. In the alternative, the SFDSA requests that this Cour strike all the irrelevant material remaining in the Amended Complaint, including the Class allegations. A. Plaintiff’s Claims are Subject to Demurrer. Under California law, a “demurrer tests the pleadings alone” and lies “where the defects appea on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70).” SKF Farm. v. Superior Court, 153 Cal. App. 3d 902, 905 (1984). Here, the pleadings show such a defects. Because these defects apparent on its face, the Amended Complaint is subject to demurrer without leave t amend. A demurrer is proper where, as here, Plaintiffs lack standing to sue. See Cal. Code. Civ. Pr 431.10; County of Fresno v. Shelton, 66 Cal. App. 4° 996 (1998) (lack of standing is proper subject for al demurrer). Plaintiff's eighth cause of action is also subject to demurrer because it uncertain under CCP § 431.10(f), as it is both ambiguous and unintelligible. As these defects cannot be cured by amendment. the demurrer as to the entire Amended Complaint must be sustained without leave to amend. A. Plaintiffs Lack Standing to Bring the Sixth Cause of Action. California Code Civil Procedure § 367 requires that a claim be prosecuted by the real party interest. “A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.” Here, none of the Plaintiffs have such an interest. 1, Plaintiffs Owyang, Tilton, Leake and Taylor Lack Standing to bring the Sixth Cause of Action. The sixth cause of action incorporates Paragraphs 52 to 67 and states that “[t]he failure of Defendants SFDSA and DAVID WONG to permit Plaintiffs to inspect the accounting books and records, of the SFDSA is in violation of Corporations Code §§ 6333 and 6334.” (Amended Complaint [*AC”] q 165.) However, those paragraphs allege that only Plaintiffs Arata and Pecot have made proper demands to the SFDSA which have been denied. (See AC 4 52-62.) 3 MPA IN SUPPORT OF SFDSA’S NOTICE OF DEMURRER AND DEMURRER TO AMENDED COMPLAINTCal Corp. Code § 6333 allow for the inspection of records “upon written demand” while § 6334 allows that directors have the right to inspection of records at a reasonable time. There are no allegations that any Plaintiffs other than Arata and Pecot made a written demand to inspect the books, or that Taylor, the only other alleged director, made any request to inspect and copy the books at a reasonable time, much less that these demands were denied. This lack of demand by the other Plaintiffs is emphasized when looking at Paragraphs 113 to 125 of the Second Amended Complaint filed by in Plaintiffs’ original federal case. (RIN Exhibit 3.) There, the exact same allegations were made. It is clear from the identical language in the two pleadings that since that case was filed in 2009, no additional requests made by any Plaintiffs were denied. Thus, Plaintiffs Owyang, Tilton, Leake and Taylor lack standing to bring the remaining claims against the SFDSA because the complaint makes clear they never made a proper request under the cited code sections. 2. Plaintiffs Pecot and Arata also Lack Standing to Bring the Sixth Cause of Action. Pecot and Arata also lack standing to bring these claims but for a different reason. The Amended Complaint states that Pecot and Arata were both members (and Pecot was a Sergeant at Arms) when their demands to see the records were made. (AC 4 6,7, 52-65.) Yet the Amended Complaint also makes clear that both Pecot and Arata were no longer members of the SFDSA by May 2, 2008. (AC 4 86.) Originally, Pecot and Arata were challenging the actions which lead to their removal from the SFDSA (See RIN Exhibit 1, §§] 68, 77-85, 166-16