Preview
DEPARTMENT: 204
Hearing: 01/11/2022 9:00 am|
Sheila K. Robello (SBN 209300) ELECTRONICALLY
Jessie J. Burgueno (SBN 332678)
Solan, Park & Robello FILED
Superior Court of California,
354 Pine Street, 7" Floor County of San Francisco
San Francisco, California 94104
Telephone: (415) 777-3300 10/20/2021
Clerk of the Court
Facsimile: (415) 777-3301 BY: MICHAEL RAYRAY
Deputy Clerk
Attorneys for Petitioner
Leo F. Bautista, Successor Trustee
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
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11 In Re Case No.: PTR-12-296124
12 [Signature by Facsimile]
13 San Lee and Mui Chow Lee PETITION TO APPROVE
Revocable Trust dated SETTLEMENT AGREEMENT AND
14 March 24, 1995, as amended MUTUAL RELEASE; AND
December 22, 2004 ENFORCEMENT OF SETTLEMENT
15 AGREEMENT PURSUANT TO CAL
CIV. PRO. CODE § 664.6; REQUEST
16 FOR AUTHORITY TO SELL REAL
PROPERTY AND TO ENTER INTO AN
17 EXCLUSIVE RIGHT-TO-SELL
AGREEMENT
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Date:
19 Time: 9:00AM
Dept.: 204
20 Petitioner Leo F. Bautista, Successor Trustee of the San Lee and Mui Chow Lee
Revocable Trust dated March 24, 1995, as amended, respectfully alleges as follows:
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1 Standing. Petitioner is the sole trustee of the San Lee and Mui Chow Lee
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Revocable Trust dated March 23, 1995, as amended, and thus has standing to bring this petition.
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25 2 Statement of Facts. San Lee and Mui Chow Lee, husband and wife, executed
26 the San Lee and Mui Chow Lee Revocable trust on March 24, 1995. The Trust was amended
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
five times with the last amendment revoking all prior amendments and setting forth new
provisions.
3 San Lee died on October 4, 1996. Mui Chow Lee, died on November 25, 2009.
As a result of the settlors’ death, and pursuant to the terms of the trust, the settlors’ niece Crystal
Chow was named as the successor trustee of the Trust and served in that role from January 2010
until her resignation effective February 29, 2012.
4 The second named successor trustee, Jeanette Lau St. Onge, neither declined to
serve nor assumed the role of successor trustee thereby creating a vacancy in the office of
10 trustee.
11 5 Petitioner filed with this Court a Petition to be appointed the role of successor
12 trustee.
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6 On December 13, 2013, this Court appointed Petitioner as successor trustee of the
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Trust. At all times since, he has been and is currently the successor trustee of the Trust.
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7 The Chow Lee Trust consists of one primary asset: 134 Athens Street, San
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Francisco, California (hereinafter, the “Athens Property”).
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18 8 In an unfortunate event, the Athens Property caught fire and was burned to the
19 ground.
20 9 Following the fire, the Petitioner took significant steps to research the feasibility
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of rebuilding the Athens Property and selling it. Through and by those efforts, Petitioner found
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and hired a professional, licensed architect to discuss a rebuild.
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10. On July 9, 2014, the Petitioner as Successor Trustee petitioned this Court for
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25 instructions on rebuilding and selling the property at 134 Athens, San Francisco, California.
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTI RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV, PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
Il. In that Petition for Instructions filed on July 9, 2014, the Petitioner presented
three viable options available to the Successor Trustee. To summarize, those options were to:
(1) Sell the property “as-is”; (2) Rebuild the Previously Existing Home; and (3) Improve and
Rebuild the Property.
12, With the consent of the beneficiaries, and the approval of this Court, Petitioner
chose the third option to improve and rebuild the property. The decision was influenced by the
greatest projected return to the Chow Lee Trust.
12. The Trustee and the architect encountered several procedural and architectural
10 roadblocks that ultimately led to significant delays in constructing the new property, and thus,
11 delayed any distributions proceeds to the five beneficiaries.
12 13. History of Proceedings. A Petition for Instructions on Rebuilding and Sale
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of Real Property was filed on July 9, 2014. An Order granting and authorizing Option 3 to
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rebuild and improve the property was entered on August 27, 2014.
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14, Thereafter, plans were submitted to the San Francisco Building and Planning
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17 Department (hereinafter, the “Department”) who ultimately approved the plans but not until July
18 of 2017. Over the last three years, the cost estimates of rebuilding the home, the amount needed
19 to complete the project, the amount remaining in the trust after payment of carrying costs and the
20 potential sale price of the finished property have changed significantly. A non-exhaustive list of
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impactful changes to the per foot rebuild cost had almost doubled from the 2014 estimates such
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as the ability to secure bids on the rebuild was hindered by the growth of construction in San
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Francisco as well as the rebuilding being done from the North Bay fires. Labor shortages and
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25 cost of supplies are also a factor.
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV, PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
15. Given the changed numbers, the Trustee filed the a petition with the court
outlining changes, despite already having authority to build the property. The beneficiaries are
aware that a change in the anticipated sale price triggers additional terms of payment to the
architect based on a sale price over $500,000.
16. A Petition for Order Authorizing Trustee to Continue Rebuild of Trust Property
and to Obtain a Loan Secured by the Trust Property to Finance the Rebuild was filed on January
1, 2018. More than three years have lapsed since the filing of the Petition and the Petition has not
yet been heard as the Trustee, architect, and beneficiaries have been embroiled in pre-litigation
10 negotiations concerning the reconstruction and improvements of the property.
1 17. On April. 29, 2019 Alexander Korn d.b.a Catamount Design (“Architect”) filed
12 his Complaint To Foreclose Mechanics’ Lien: For Breach of Contract; and Quantum Meruit and
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Notice that Plaintiff Does not Intend to Waive any Right to Arbitration; C.C.P 1281.50 [CGC-19-
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575572]. The Architect in that petition requests enforcement of the contract that provides for a
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payment of $26,550 plus 9% of the sale price of the property in excess of $500,000, and an
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17 hourly rate for all time expended on the project after one year at the rate of $140 per hour plus
18 interest and attorney fees. Both a mechanic’s lien for $63,127 and a lis pendens was recorded
19 on the property at 134 Athens Street, San Francisco.
20 18. The trustee and the Architect stipulated to binding arbitration and the court
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ordered the matter to binding arbitration on October 22, 2019. A Settlement was reached
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between the architect and the trustee and approved by this court on March 17, 2021. The
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settlement proved that the architect was to receive a lien against the property in the amount of
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25 $68,000 plus interest beginning six months after the court approval of the settlement. The
26 Complaint was dismissed on March 24, 2021.
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
I PETITION TO DISCONTINUE REBUILD OF PROPERTY ON
AUTHORIZATION TO SELL REAL PROPERTY.
15. The Court authorized Petitioner to rebuild the property by court order dated
August 27, 2014. However, after the filing of this petition, -the remainder beneficiaries Crystal
Chow, Jeanette St. Lau, and the successor trustee, Leo F, Bautista, have agreed to sell the real
property “as-is,” thus purging the need for continued authority to rebuild. Therefore, Petitioner
withdraws his request for authorization to continue the rebuild of 134 Athens and supplants it
with the request that the remainder settlement agreement be approved, that he be authorized to
sell the real property “as is” and that he be allowed to enter into an exclusive right-to-sell
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agreement.
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I. PETITION FOR INSTRUCTIONS APPROVING REMAINDER OF
12 SETTLEMENT AGREEMENT AND MUTUAL RELEASE;
13 ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT
TO CAL. CIV. PRO. CODE § 664.
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16. Parties Have Reached Settlement. The parties have reached a resolution
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involving all pending concerns about the 134 Athens property. For the following reasons, the
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17 Successor Trustee proposes to enter into a settlement agreement with the remainder beneficiaries
18 for the following reasons:
19 a. Continued delay is not productive or cost-effective. Considerable efforts have been
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made to address the concerns ofthe remainder beneficiaries following the filing of
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the underlying petition.
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The trustee believes that the negotiated settlement is in the best interest of the trust as
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it reduces further costs to the trust for further and final discovery, costs of arbitration,
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25 provides finality as to all remaining claims, and secures the completed plans for sale
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
with the property and protects against the uncertainty of the outcome of continued
litigation.
The carrying costs of the real property continue to drain the assets of the trust estate
to the detriment of the trust. The trust continues to pay for property maintenance
(cutting the grass), property tax, renewal fees for the approved building permits,
property insurance and monthly fees for the fencing required by the city. These are in
addition to the extensive trustee and attorney fees incurred in defending, responding
and attempting to resolve the legal claims of the Architect and the informal claims of
10 the remainder beneficiaries. The trust has no liquid assets to continue to pay these
11 ongoing expenses. In fact, expenses during the fourth accounting period were paid by
12 the trustee. The trustee has not been compensated for his services for the previous
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two accounting periods. Further delays are detrimental to the trust and will
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aggravate any future possibility of settlement.
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Settlement is not prejudicial to the trust beneficiaries as the pecuniary beneficiaries
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17 and remainder beneficiaries are still conferred benefits of the trust and its corpus. Of
18 major concern is the issue that the trust does not have sufficient funds to continue to
19 pay the carrying costs of the property—delays will only dilute and/or continue to
20 deplete the assets thus reducing the distribution to the remainder beneficiaries.
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The pecuniary beneficiaries distribution is unaffected by the proposed settlement
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agreement. The signed Settlement Agreement and Mutual Release are attached hereto and
incorporated herewith as Exhibit A.
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25 17. Term of the Settlement Agreement and Mutual Release.
26 The pertinent terms ofthe Settlement agreement are as follows:
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV, PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND.
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
The property to be sold with Fetemah Nikchehi for a total commission of four
percent (4%):
The sale of the property shall include disclosures containing the approved plans
and all other documents agreed upon by the parties as necessary for the sale of
the property;
The parties have agreed that all documents to be provided to the buyer are
contained in Drop Box which shall be referred to herein as the “Disclosure Drop
Box.” The parties have reviewed and approved the documents provided and
have agreed that the “Disclosure Drop Box” contains all documents that the
parties have or will provide to each other or to the Buyers.
The following items are to be paid from escrow in the following order of
priority, in the event funds received are inadequate to cover all of the items
below:
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Realtor commission of four percent (4%));
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All costs of sale. $5,000 (estimated) (for items including but not limited to
12 escrow fees, transfer tax, notary fees etc.)*;
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$68,000 to Architect Alex Korn in exchange for release of the Architect’s
14 lien on the property plus interest at ten percent (10%) per annum on
Architect’s Lien. beginning six months after the approval of the settlement
15S agreement with the Architect and through the date of payment of the lien;
16 Accrued and unpaid property tax (plus any accrued interest or penalties
17 through close of escrow);
18 $12,099.52 Cost advanced by SPR and Bautista as follows:
i $4,912.12 to Bautista (this includes costs for yard work, tax preparation
19 fee, bond, extension fee, fencing to date);
UL. $3,464.57 to SPR ($1,252.57 from 3" account, $462 filing fee 3" acct,
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$450 filing fee petition for instruction and $1,300 unreimbursed
21 arbitration fee);
iti $1,695.00 for anticipated expenses to SPR ($465 filing fee for petition
22 for settlement and authority to sell, $465 for 4"" acct, $465 for final
accounting and $300 messenger fees)*;
23 iv. $718.69 anticipated property insurance tax due 3/19/21;
V. $109.44 anticipated annual fencing costs*; and
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vi $1,200 anticipated annual yard work.*
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$5,000 for reserve for final tax preparation;
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$170,000 for payment to the three pecuniary beneficiaries;
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND.
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
h. $51,162 Trustee and Attorney fees to SPR and Bautista to be allocated as
agreed to by SPR and Bautista in a separate agreement. These fees represent
a compromise of trustee and attorney fees already ordered by the court but
that have not yet been paid due to the illiquidity of the trust estate;
The trustee shall retain funds in escrow from the distribution to residual
beneficiaries for payment of fees and costs due and owing to Bryan Hinshaw. 5
attorney for the remainder beneficiaries, upon receipt of joint instructions
from Bryan Hinshaw and the remainder beneficiaries. It is anticipated that
upon the sale of the property, there may be a need for a reserve for fees to
complete and address matters arising from the sale and closing of escrow. In
the event of a dispute between the remainder beneficiaries over the amount
due, the undisputed portion shall be paid, and the disputed portion held until
the dispute is resolved.
10 Remainder Beneficiaries Jeanette and Crystal will receive all remaining
assets after payment of the above for any sale price up to $700,000. For
11 purposes of illustration only, the remainder interest would be approximate
$160,045.48, less payment of fees to Bryan Hinshaw for a sale at $500,000
12 and approximately $352,045.48 for a sale of $700,000, less payment of fees
13 to Bryan Hinshaw, adjusted for realtor fees.
14 If the property sells for more than $700,000 then the additional net sale
proceeds shall be distributed 30% to Bautista and SPR up to the total amount
15 of court ordered fees and 70% to remainder beneficiaries Jeannette and
Crystal.
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17 5. The Remainder Beneficiaries agree to be responsible for any capital gain taxes
on the sale of the property; except that in the event that the property sells for
18 more than $700,000, Bautista and SPR shall pay 30% of the capital gains tax on
the portion of the gain above $700,000.
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Any remaining amounts from the reserve will be proportionately distributed to
20 the remainder beneficiaries.
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The proposal outlines the order of payment and shall be used as the escrow
22 instructions.
23 18. Reservation of Jurisdiction Pursuant to Cal. Civ. Pro. Code § 664.6.
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The Settlement Agreement and Mutual Release provides for reservation of this Court’s
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jurisdiction to enforce the terms of the Settlement Agreement under Cal. Civ. Pro. Code § 664.
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PETITION TO APPROVE SET EMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT.
Petitioner requests that the Court specify on this Petition that it is reserving jurisdiction to
enforce terms of the Settlement Agreement and Mutual Release.
19, Trustee and Attorney Fees.
The Settlement Agreement provides for $51,162.00 in attorneys and trustees fees. These
fees represent less than the total granted by the court over the last three accountings and what
will be granted in the order approving the fourth accounting petition. Petitioner is therefore
requesting less than has been ordered by the court with regard to trustees and attorneys fees by
calculating the amount based on the sale of the property.
10 II. PETITION FOR AUTHORITY TO SELL REAL PROPERTY AND
ENTER INTO AN EXLUSIVE RIGHT-TO-SELL
I AGREEMENT.
12 20. Petitioner realleges and incorporates the foregoing paragraphs.
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21. Request for Authority to Sell Real Property. The Petitioner and Successor
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Trustee, LEO F. BAUTISTA, seeks court authority to sell property necessary to make the
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distributions outlined above and to pay the fees and costs of the successor trustee and of his
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17 attorneys’, Solan, Park & Robello.
18 22. Accordingly, the Successor Trustee need authority to sell real property located at
19 134 Athens Street, San Francisco, California, more particularly described as follows:
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COMMENCING at point on the northwesterly line of Athens Street, distant
21 thereon 200 feet southwesterly from the southwesterly line of Peru Street;
running thence southwesterly along said line of Athens Street 25 feet; thence
22 at a right angle northwesterly 100 feet; thence at a right angle northeasterly
25 feet; and thence at a right angle southwesterly 100 feet to the point of
23 commencement.
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BEING part of Block 67, EXCELSIOR HOMESTEAD ASSOCIATION.
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23. Petitioner and all five beneficiaries of the Trust have stipulated and have agreed to
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sell the trusts interest in the 134 Athens Street property.
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND.
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT.
24, Request for Authority to Enter into Exclusive Right-to-Sell Agreement. As
part of the sale process, Petitioner will require assistance of an experienced real estate agent.
Petitioner respectfully requests authority to enter into an exclusive listing agreement with realtor
Fetemah Nikchehi of Own Real Estate, to assist in the listing, marketing, negotiation, and
ultimate sale of the property. The listing shall not exceed one hundred and eighty (180) days
from the date of the court order authorizing Petitioner to retain said realtor, with any offer of sale
subject to the approval of the court and subject to overbid, and for total commission of no more
than two percent (2%) to be paid to the seller’s agent and no more than two percent 2% to be
10 paid to the buyer’s agent. The proposed exclusive listing agreement is attached hereto and made
11 part hereof as Exhibit B.
12 25. No Affiliate Relation. During the period of the account, there was no
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relationship or affiliation between Petitioner and any agent hired by Petitioner during the
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accounting.
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26. Trust Beneficiaries. The names, ages, and addresses of the beneficiaries of the
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17 Trust as known to the Petitioner are:
18 Brian Leland Chow Adult 25 Essex St. #609
San Francisco, CA 94105
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Fiona Chow Adult 9961 Waxberry Court
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Las Vegas, NV 89178
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Justin Chow Adult 9961 Waxberry Court
22 Las Vegas, NV 89178
23 Crystal Chow Adult 125 Olmstead Street,
San Francisco, CA 94134
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25 Jeannette Lau St. Onge Adult 1893 Sweetwood Drive
Daly City, CA 94015
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND.
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
27. Request for Special Notice. Request for Special Notice has been requested by
1
2 the following parties and will be notified of the filing of this instant Petition:
3 Brian J. Trowbridge, Esq.
Trowbridge Law Office
1901 Harrison Street, 14" Floor
Oakland, California 94612
Attorneys for Alexander Korn
D/B/A Catamount Designs
WHEREFORE, Petitioner respectfully requests that the Court order as follows:
1 No further notice be required;
2 The Settlement and Mutual Release be approved in its entirety;
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3 This Court reserves jurisdiction pursuant to Cal. Civ. Pro. Code § 664.6 to enforce
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the terms of the Partial Settlement Agreement and Mutual Release;
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4 Authorizing and directing Successor Trustee, LEO F. BAUTISTA, to discontinue
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14 rebuild of real property at 134 Athens, San Francisco, California;
15 5 Authorizing and directing Successor Trustee, LEO F. BAUTISTA, to sell the real
16 property located at 134 Athens, San Francisco, California, more particularly described as
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follows:
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COMMENCING at point on the northwesterly line of Athens Street, distant
19 thereon 200 feet southwesterly from the southwesterly line of Peru Street;
running thence southwesterly along said line of Athens Street 25 feet; thence
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at a right angle northwesterly 100 feet; thence at a right angle northeasterly
21 25 feet; and thence at a right angle southwesterly 100 feet to the point of
commencement.
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BEING part of Block 67, EXCELSIOR HOMESTEAD ASSOCIATION.
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6. Authorizing and directing Successor Trustee, LEO F. BAUTISTA, to enter into
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25 an exclusive right-to-sell agreement with Fetemah Nikchehi of Keller Williams Realty, to assist
26 in the listing, marketing, negotiation, and ultimate sale of the property. The listing shall not
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
exceed one hundred and twenty (120) days from the date of the court order authorizing Petitioner
to retain said realtor, with any offer of sale subject to the approved of the court and subject to
overbid, and for total commission of no more than two percent (2%) to be paid to the seller’s
agent and no more than two percent 2% to be paid to the buyer’s agent.
7 For other such orders as the Court deems just and necessary.
Dated: /0//2/27 Respectfully Submitted,
SOLAN, PARK & ROBELLO
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BY: Y-
11 SHEILA K. ROBELLO
Attorney for Petitioner, Leo F. Bautista
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND.
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT.
VERIFICATION
I, Leo F. Bautista, am the Successor Trustee of the San Lee and Mui Chow Lee
3 Revocable Trust dated March 24, 1995. as amended, and am the petitioner herein, | have read the
foregoing PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL
RELEASE: AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO
CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL
PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
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and know its contents. The matters stated therein are truc of my own knowledge, save and except
10 those matters stated on information and believe and, as to those matters, | believe them to be
1] true.
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{ declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct,
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Executed this SE day of October, 2021, a Le California.
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Leo F. Bautisia
Ia,
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PETITION TO APPROV TL NT AGRI Mi FAND M ML AND ENFORCEM oF
A MENT PURSUA) o¢ PRO, yp! 66 R ST EC RETY SELL REAL PROPERTY AND
ro 1. HT-10. IREEM
VERIFICATION
I, Sheila K. Robello, am the attorney for Leo F. Bautista, the Successor Trustee of the San
Lee and Mui Chow Lee Revocable Trust dated March 24, 1995, as amended. I have read the
foregoing PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL
RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO
CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL
PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
and know its contents. The matters stated therein as they related to the petition for attorneys’ fees
10 and reimbursement of costs are true of my own knowledge, save and except those matters stated
11 on information and believe and, as to those matters, I believe them to be true.
12 I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Executed this 19" day of October 2021, at San Francisco, California.
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17 Mae
Sheila K. Robello
Pte
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PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT
AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND
TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT
SETTLEMENT AGREEMENT
AND
MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release (“this Agreement”) is made
effective as of September 16, 2021, by and between LEO F. BAUTISTA (“Bautista”) as Trustee
of the San Lee and Mui Chow Lee Revocable Trust dated March 24, 1995, as amended
December 22, 2004 (“the Trust”), Sheila K. Robello on behalfof Solan, Park & Robello
(“SPR”), attorney for Leo F. Bautista, JEANNETTE LAU ST. ONGE (“Jeannette”) and
CRYSTAL CHOW (“Crystal”) (collectively referred to as “Parties” and/or “Remainder
Beneficiaries”) in their individual capacities as beneficiaries or claimaints to the Trust (San
Francisco Superior Court Case No, PTR-12-296124).
A Nature and Effect of Agreement.
1 This Agreement consists of a compromise and settlement of each party’s claims
against the others arising from the circumstances/disputes described below in Paragraph B, and a
release given by each party to the other party relinquishing all claims arising from the
circumstances, dispute, and litigation described below. By executing this Agreement, each party
intends to, and does hereby, extinguish all obligations existing between them and arising from
the circumstances and dispute described herein, unless otherwise specifically excepted and/or
excluded in this Agreement.
2 This Agreement is not and shall not be treated as an admission of liability by any
ofthe parties.
3 This Agreement is conditioned upon the approval of this Agreement by the
Probate Department of the Superior Court of California, County of San Francisco, Case No.
PTR-12-296124, because this trust is under court supervision. The entire Agreement will
become binding immediately upon approval by the Probate Court. If this Agreement is not
approved by the Probate Court, the agreement is null and void, and shall not be disclosed in
arbitration and/or litigation, as it will be considered confidential settlement communication.
4 This Agreement, if approved by the Probate Court, shall bind upon and for the
benefit of the Parties and their business entities, affiliated companies, insurers, representatives,
predecessors, and successors in interest, successor trustees, heirs, assigns, beneficiaries, and their
past, present and future principals, officers, directors, shareholders, servants, members, partners,
subsidiaries, subcontractors, affiliated companies, agents, employees, employers, assignees,
devisees, representatives, and attorneys.
B Nature and Status of Circumstances/Dispute.
1 This Trust is for the benefit of five beneficiaries—three specific bequest
beneficiaries and two remainder beneficiaries entitled to the residue of the trust estate. During
EXHIBIT
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3 A
the course of the trust administration, disputes arose regarding the real property located at 134
Athens Street, San Francisco, California, which have stalled the sale ofthe real property and
ultimately the distribution of the proceeds to the beneficiaries of this trust.
2. It is the Parties’ intention to settle and dispose of, fully and completely, all claims,
demands, and causes of action, whether known or unknown relating to or arising out of the
circumstances described herein and in the pleadings in the civil action and binding private
arbitration. This Agreement shall govern the compensation of the trustee and his counsel
necessary to sell the property and distribute the sales proceeds and complete the administration
of the trust, for which they will receive no further compensation or fees, but will be reimbursed
for out of pocket expenses incurred after the date this Agreement is effective.
Cc. Terms of Settlement Agreement.
The property to be sold with Fetemah Nikchehi for a total commission of four percent
(4%) and Fatemah Nikchehi will open excrow with Kelin M. Ingalls at First American
Title Company and the Trustee will sign the papers to list he property within five days of
receipt of court approval of this settlement agreement;
The sale of the property shall include disclosures containing the approved plans and all
other documents agreed upon by the parties as necessary for the sale of the property.
The parties have agreed that all documents to be provided to the buyer are contained in a drop
box which shall be referred to herein as the “Disclosure Drop box.” The parties have reviewed
and approved of the documents provided and have agreed that the “Disclosure Drop box”
contains all documents that the parties have provided to each other and intend as of the date of
this agreement to provide to prospective buyers or their agents and contractors, except for a copy
of the permit extension issued in January of 2021. In addition, the Drop Box will also contain
any additional documents that the parties become aware of that the trustee agrees should be
included in the disclosures.
3. The following items to be paid from escrow in the following order of priority, in the
event funds received are inadequate to cover all of the items below:
a. Realtor commission (subject to change but estimated at $20,000 based on a
$500,000 sale at four percent (4%));
All costs of sale. $5,000 (estimated) (for items including but not limited to escrow
fees, transfer tax, notary fees etc.)*;
$68,000 to Architect Alex Korn in exchange for release of the Architect’s lien on
the property plus interest at ten percent (10%) per annum on Architect’s Lien
beginning six months after the approval of the settlement agreement with the
Architect and through the date of payment of the lien.
d. Accrued and unpaid property tax (plus any accrued interest or penalties through
close of escrow- Currently at $7,200);
€ $12,099.52 Cost advanced by SPR and Bautista as follows:
I $4,912.12 to Bautista (this includes costs for yard work, tax preparation
fee, bond, extension fee, fencing to date);
W $3,464.57 to SPR ($1,252.57 from 3" account, $462 filing fee 3 acct,
$450 filing fee petition for instruction and $1,300 unreimbursed arbitration
fee);
iii $1,695.00 for anticipated expenses to SPR ($465 filing fee for petition for
settlement and authority to sell, $465 for 4"" acct, $465 for final
accounting and $300 messenger fees)*;
iv $718.69 anticipated property insurance tax due 3/19/21;
v $109.44 anticipated annual fencing costs*; and
vi $1,200 anticipated annual yard work*
$5,000 for reserve for final tax preparation;
$170,000 for payment to the three pecuniary beneficiaries or to the remainder
beneficiaries as follows: The sum of$50,000 each for Fiona Chow and Justin
Chow shall be held in trust and a portion or all of this sum shall be distributed to
the remainder beneficiaries for the sole purpose of reimbursing them for payment
to their attorneys, Bryan Hinhsaw, based on amounts and payments as directed by
either or both of Crystal Chow or Jeanette Lau. The total payments shall be no
greater than 40% (or 20% for each of them)of the total fees and expenses paid by
Jeannette Lau and Crystal Chow to Bryan Hinshaw, pursuant to the terms and
conditions of the written agreements between each of them and the remainder
beneficiaries;
The sum of $70,000 shall be distributed to Brian Chow ;
$51,162 Trustee and Attorney fees to SPR and Bautitsta to be allocated as agreed
to by SPR and Bautista in a separate agreement;
The trustee shall retain funds in escrow from the distribution to residual
beneficiaries for payment of fees and costs due and owing to Bryan Hinshaw,
attorney for the remainder beneficiaries, upon receipt of joint instructions from
Bryan Hinshaw and the remainder beneficiaries. It is anticipated that upon the sale
of the property, there may be a need for a reserve for fees to complete and address
matters arising from the sale and closing of escrow. In the event of a dispute
between the remainder beneficiaries over the amount due, the undisputed portion
shall be paid and the disputed portion held until the dispute is resolved.
Remainder Beneficiaries Jeanette and Crystal will receive all remaining assets after
payment of the above for any sale price up to $700,000. For purposes of
3
illustration only, the remainder interest would be approximate $160,045.48, less
payment of fees to Bryan Hinshaw for a sale at $500,000 and approximately
$352,045.48 for a sale of $700,000, less payment of fees to Bryan Hinshaw,
adjusted for realtor fees.
If the property sells for more than $700,000 then the additional net sale proceeds
shall be distribued 30% to Bautista and SPR up to the total amount of court
ordered fees and 70% to remainder beneficiaries Jeannette and Crystal.
4. The Remainder Beneficiaries agree to be responsible for any capital gain taxes on the sale
of the property; except that in the event that the property sells for more than $700,000,
Bautista and SPR shall pay 30% of the capital gains tax on the portion of the gain above
$700,000.
Any remaining amounts from the reserve will be proportionately distributed to the
remainder beneficiaries.
The proposal outlines the order of payment and shall be used as the escrow instructions
with Kelin M. Ingalls at First American Title Company.
Mutual General Releases
D. Releases by all Parties. Subject to the obligations imposed by this Agreement or
otherwise available by law, each Party, for himself//herself and for each of his/her agents,
assigns, successors, heirs, children, devisees, personal representatives, insurers, attorneys,
spouses and employees, hereby fully and forever release and discharges each other Party,
both individually and in any representative capacity, and each of his/her respective agents,
successors, heirs, personal representatives, insurers, children, beneficiaries, attorneys,
spouses, and assigns, from and against any and all claims, causes of action, liabilities, duties,
suits, fees, costs, damage, and damages, arising from or concerning in any way this dispute or
trust matter.
E. Civil Code §1542 Waivers.
The Parties do hereby waive the provisions of Section 1542 of the Civil Code, which
reads as follows:
A general release does not extend to claims which the creditor or releasing
party does not know or suspect to exist in his or her favor at the time of executing
the release, which if known by him or her must have materially affected his or her
settlement with the debtor or released party.
The Parties understand that there may be facts known or unknown to each ofthem which
might affect this Agreement, and that other, greater of different damages may exist from those
pleaded. Nonetheless, each of the Parties agree that the forgoing releases are to be in all
4
respects full and final releases as to the subject matter thereof, and are intended to release all
such claims, known or unknown, suspected or unsuspected, foreseen or unforeseen.
F. Assignment.
The Parties represent to each other that (i) the undersigned have not assigned, transferred,
sold, pledged or otherwise encumbered the undersigned’s’ interest in the claims, liens, demands,
damages, debts, actions, suits, judgements, liabil ies, losses, costs, and expenses herein released
and (ii) the undersigned have not filed any action or proceedings ofany nature against the Parties
herein released except as specifically set forth above, and covenant not to do so.
G. Counterparts.
This Agreement (or its execution pages) may be executed in one of more counterparts
and as executed shall constitute one and the same agreement binding upon each of the Parties
hereto and on each party so signing.
H. Entire Agreement.
This Agreement constitutes the complete and entire agreement of the Parties as to its
subject matter, and supersedes all prior correspondence, negotiations, drafts or agreements, oral
or written.
Cooperation.
The Parties agree to promptly take whatever steps, and execute, acknowledge, and deliver
whatever documents, may be necessary or desirable to effectuate the purposes of this Agreement.
J. Construction.
This Agreement and any claimed uncertainty or ambiguity herein shall not be constructed
for or against any, but shall instead be constructed as if all Parties to this Agreement jointly
prepared it.
K Voluntary Execution.
Each of the Parties hereto declares that, prior to and in connection with execution of this
Agreement, such party has been apprised of sufficient relevant data, either through experts, legal
counsel or other sources of that party’s own selection, so as to exercise that party’s judgement
intelligently in
Preview
DEPARTMENT: 204 Hearing: 01/11/2022 9:00 am| Sheila K. Robello (SBN 209300) ELECTRONICALLY Jessie J. Burgueno (SBN 332678) Solan, Park & Robello FILED Superior Court of California, 354 Pine Street, 7" Floor County of San Francisco San Francisco, California 94104 Telephone: (415) 777-3300 10/20/2021 Clerk of the Court Facsimile: (415) 777-3301 BY: MICHAEL RAYRAY Deputy Clerk Attorneys for Petitioner Leo F. Bautista, Successor Trustee SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 11 In Re Case No.: PTR-12-296124 12 [Signature by Facsimile] 13 San Lee and Mui Chow Lee PETITION TO APPROVE Revocable Trust dated SETTLEMENT AGREEMENT AND 14 March 24, 1995, as amended MUTUAL RELEASE; AND December 22, 2004 ENFORCEMENT OF SETTLEMENT 15 AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST 16 FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN 17 EXCLUSIVE RIGHT-TO-SELL AGREEMENT 18 Date: 19 Time: 9:00AM Dept.: 204 20 Petitioner Leo F. Bautista, Successor Trustee of the San Lee and Mui Chow Lee Revocable Trust dated March 24, 1995, as amended, respectfully alleges as follows: 22 1 Standing. Petitioner is the sole trustee of the San Lee and Mui Chow Lee 23 Revocable Trust dated March 23, 1995, as amended, and thus has standing to bring this petition. 2 25 2 Statement of Facts. San Lee and Mui Chow Lee, husband and wife, executed 26 the San Lee and Mui Chow Lee Revocable trust on March 24, 1995. The Trust was amended 27 1 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT five times with the last amendment revoking all prior amendments and setting forth new provisions. 3 San Lee died on October 4, 1996. Mui Chow Lee, died on November 25, 2009. As a result of the settlors’ death, and pursuant to the terms of the trust, the settlors’ niece Crystal Chow was named as the successor trustee of the Trust and served in that role from January 2010 until her resignation effective February 29, 2012. 4 The second named successor trustee, Jeanette Lau St. Onge, neither declined to serve nor assumed the role of successor trustee thereby creating a vacancy in the office of 10 trustee. 11 5 Petitioner filed with this Court a Petition to be appointed the role of successor 12 trustee. 13 6 On December 13, 2013, this Court appointed Petitioner as successor trustee of the 14 Trust. At all times since, he has been and is currently the successor trustee of the Trust. 15 7 The Chow Lee Trust consists of one primary asset: 134 Athens Street, San 16 Francisco, California (hereinafter, the “Athens Property”). 17 18 8 In an unfortunate event, the Athens Property caught fire and was burned to the 19 ground. 20 9 Following the fire, the Petitioner took significant steps to research the feasibility 21 of rebuilding the Athens Property and selling it. Through and by those efforts, Petitioner found 22 and hired a professional, licensed architect to discuss a rebuild. 23 10. On July 9, 2014, the Petitioner as Successor Trustee petitioned this Court for 24 25 instructions on rebuilding and selling the property at 134 Athens, San Francisco, California. 26 27 2 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTI RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV, PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT Il. In that Petition for Instructions filed on July 9, 2014, the Petitioner presented three viable options available to the Successor Trustee. To summarize, those options were to: (1) Sell the property “as-is”; (2) Rebuild the Previously Existing Home; and (3) Improve and Rebuild the Property. 12, With the consent of the beneficiaries, and the approval of this Court, Petitioner chose the third option to improve and rebuild the property. The decision was influenced by the greatest projected return to the Chow Lee Trust. 12. The Trustee and the architect encountered several procedural and architectural 10 roadblocks that ultimately led to significant delays in constructing the new property, and thus, 11 delayed any distributions proceeds to the five beneficiaries. 12 13. History of Proceedings. A Petition for Instructions on Rebuilding and Sale 13 of Real Property was filed on July 9, 2014. An Order granting and authorizing Option 3 to 14 rebuild and improve the property was entered on August 27, 2014. 15 14, Thereafter, plans were submitted to the San Francisco Building and Planning 16 17 Department (hereinafter, the “Department”) who ultimately approved the plans but not until July 18 of 2017. Over the last three years, the cost estimates of rebuilding the home, the amount needed 19 to complete the project, the amount remaining in the trust after payment of carrying costs and the 20 potential sale price of the finished property have changed significantly. A non-exhaustive list of 21 impactful changes to the per foot rebuild cost had almost doubled from the 2014 estimates such 22 as the ability to secure bids on the rebuild was hindered by the growth of construction in San 23 Francisco as well as the rebuilding being done from the North Bay fires. Labor shortages and 24 25 cost of supplies are also a factor. 26 27 4 3 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV, PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT 15. Given the changed numbers, the Trustee filed the a petition with the court outlining changes, despite already having authority to build the property. The beneficiaries are aware that a change in the anticipated sale price triggers additional terms of payment to the architect based on a sale price over $500,000. 16. A Petition for Order Authorizing Trustee to Continue Rebuild of Trust Property and to Obtain a Loan Secured by the Trust Property to Finance the Rebuild was filed on January 1, 2018. More than three years have lapsed since the filing of the Petition and the Petition has not yet been heard as the Trustee, architect, and beneficiaries have been embroiled in pre-litigation 10 negotiations concerning the reconstruction and improvements of the property. 1 17. On April. 29, 2019 Alexander Korn d.b.a Catamount Design (“Architect”) filed 12 his Complaint To Foreclose Mechanics’ Lien: For Breach of Contract; and Quantum Meruit and 13 Notice that Plaintiff Does not Intend to Waive any Right to Arbitration; C.C.P 1281.50 [CGC-19- 14 575572]. The Architect in that petition requests enforcement of the contract that provides for a 15 payment of $26,550 plus 9% of the sale price of the property in excess of $500,000, and an 16 17 hourly rate for all time expended on the project after one year at the rate of $140 per hour plus 18 interest and attorney fees. Both a mechanic’s lien for $63,127 and a lis pendens was recorded 19 on the property at 134 Athens Street, San Francisco. 20 18. The trustee and the Architect stipulated to binding arbitration and the court 21 ordered the matter to binding arbitration on October 22, 2019. A Settlement was reached 22 between the architect and the trustee and approved by this court on March 17, 2021. The 23 settlement proved that the architect was to receive a lien against the property in the amount of 24 25 $68,000 plus interest beginning six months after the court approval of the settlement. The 26 Complaint was dismissed on March 24, 2021. 27 4 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT I PETITION TO DISCONTINUE REBUILD OF PROPERTY ON AUTHORIZATION TO SELL REAL PROPERTY. 15. The Court authorized Petitioner to rebuild the property by court order dated August 27, 2014. However, after the filing of this petition, -the remainder beneficiaries Crystal Chow, Jeanette St. Lau, and the successor trustee, Leo F, Bautista, have agreed to sell the real property “as-is,” thus purging the need for continued authority to rebuild. Therefore, Petitioner withdraws his request for authorization to continue the rebuild of 134 Athens and supplants it with the request that the remainder settlement agreement be approved, that he be authorized to sell the real property “as is” and that he be allowed to enter into an exclusive right-to-sell 10 agreement. 1 I. PETITION FOR INSTRUCTIONS APPROVING REMAINDER OF 12 SETTLEMENT AGREEMENT AND MUTUAL RELEASE; 13 ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL. CIV. PRO. CODE § 664. 14 16. Parties Have Reached Settlement. The parties have reached a resolution 15 involving all pending concerns about the 134 Athens property. For the following reasons, the 16 17 Successor Trustee proposes to enter into a settlement agreement with the remainder beneficiaries 18 for the following reasons: 19 a. Continued delay is not productive or cost-effective. Considerable efforts have been 20 made to address the concerns ofthe remainder beneficiaries following the filing of 21 the underlying petition. 22 The trustee believes that the negotiated settlement is in the best interest of the trust as 23 it reduces further costs to the trust for further and final discovery, costs of arbitration, 24 25 provides finality as to all remaining claims, and secures the completed plans for sale 26 27 5 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT with the property and protects against the uncertainty of the outcome of continued litigation. The carrying costs of the real property continue to drain the assets of the trust estate to the detriment of the trust. The trust continues to pay for property maintenance (cutting the grass), property tax, renewal fees for the approved building permits, property insurance and monthly fees for the fencing required by the city. These are in addition to the extensive trustee and attorney fees incurred in defending, responding and attempting to resolve the legal claims of the Architect and the informal claims of 10 the remainder beneficiaries. The trust has no liquid assets to continue to pay these 11 ongoing expenses. In fact, expenses during the fourth accounting period were paid by 12 the trustee. The trustee has not been compensated for his services for the previous 13 two accounting periods. Further delays are detrimental to the trust and will 14 aggravate any future possibility of settlement. 15 Settlement is not prejudicial to the trust beneficiaries as the pecuniary beneficiaries 16 17 and remainder beneficiaries are still conferred benefits of the trust and its corpus. Of 18 major concern is the issue that the trust does not have sufficient funds to continue to 19 pay the carrying costs of the property—delays will only dilute and/or continue to 20 deplete the assets thus reducing the distribution to the remainder beneficiaries. 21 The pecuniary beneficiaries distribution is unaffected by the proposed settlement 22 agreement. The signed Settlement Agreement and Mutual Release are attached hereto and incorporated herewith as Exhibit A. 24 25 17. Term of the Settlement Agreement and Mutual Release. 26 The pertinent terms ofthe Settlement agreement are as follows: 27 6 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV, PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND. TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT The property to be sold with Fetemah Nikchehi for a total commission of four percent (4%): The sale of the property shall include disclosures containing the approved plans and all other documents agreed upon by the parties as necessary for the sale of the property; The parties have agreed that all documents to be provided to the buyer are contained in Drop Box which shall be referred to herein as the “Disclosure Drop Box.” The parties have reviewed and approved the documents provided and have agreed that the “Disclosure Drop Box” contains all documents that the parties have or will provide to each other or to the Buyers. The following items are to be paid from escrow in the following order of priority, in the event funds received are inadequate to cover all of the items below: 10 Realtor commission of four percent (4%)); it All costs of sale. $5,000 (estimated) (for items including but not limited to 12 escrow fees, transfer tax, notary fees etc.)*; 13 $68,000 to Architect Alex Korn in exchange for release of the Architect’s 14 lien on the property plus interest at ten percent (10%) per annum on Architect’s Lien. beginning six months after the approval of the settlement 15S agreement with the Architect and through the date of payment of the lien; 16 Accrued and unpaid property tax (plus any accrued interest or penalties 17 through close of escrow); 18 $12,099.52 Cost advanced by SPR and Bautista as follows: i $4,912.12 to Bautista (this includes costs for yard work, tax preparation 19 fee, bond, extension fee, fencing to date); UL. $3,464.57 to SPR ($1,252.57 from 3" account, $462 filing fee 3" acct, 20 $450 filing fee petition for instruction and $1,300 unreimbursed 21 arbitration fee); iti $1,695.00 for anticipated expenses to SPR ($465 filing fee for petition 22 for settlement and authority to sell, $465 for 4"" acct, $465 for final accounting and $300 messenger fees)*; 23 iv. $718.69 anticipated property insurance tax due 3/19/21; V. $109.44 anticipated annual fencing costs*; and 24 vi $1,200 anticipated annual yard work.* 25 $5,000 for reserve for final tax preparation; 26 $170,000 for payment to the three pecuniary beneficiaries; 27 7 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND. TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT h. $51,162 Trustee and Attorney fees to SPR and Bautista to be allocated as agreed to by SPR and Bautista in a separate agreement. These fees represent a compromise of trustee and attorney fees already ordered by the court but that have not yet been paid due to the illiquidity of the trust estate; The trustee shall retain funds in escrow from the distribution to residual beneficiaries for payment of fees and costs due and owing to Bryan Hinshaw. 5 attorney for the remainder beneficiaries, upon receipt of joint instructions from Bryan Hinshaw and the remainder beneficiaries. It is anticipated that upon the sale of the property, there may be a need for a reserve for fees to complete and address matters arising from the sale and closing of escrow. In the event of a dispute between the remainder beneficiaries over the amount due, the undisputed portion shall be paid, and the disputed portion held until the dispute is resolved. 10 Remainder Beneficiaries Jeanette and Crystal will receive all remaining assets after payment of the above for any sale price up to $700,000. For 11 purposes of illustration only, the remainder interest would be approximate $160,045.48, less payment of fees to Bryan Hinshaw for a sale at $500,000 12 and approximately $352,045.48 for a sale of $700,000, less payment of fees 13 to Bryan Hinshaw, adjusted for realtor fees. 14 If the property sells for more than $700,000 then the additional net sale proceeds shall be distributed 30% to Bautista and SPR up to the total amount 15 of court ordered fees and 70% to remainder beneficiaries Jeannette and Crystal. 16 17 5. The Remainder Beneficiaries agree to be responsible for any capital gain taxes on the sale of the property; except that in the event that the property sells for 18 more than $700,000, Bautista and SPR shall pay 30% of the capital gains tax on the portion of the gain above $700,000. 19 Any remaining amounts from the reserve will be proportionately distributed to 20 the remainder beneficiaries. 21 The proposal outlines the order of payment and shall be used as the escrow 22 instructions. 23 18. Reservation of Jurisdiction Pursuant to Cal. Civ. Pro. Code § 664.6. 24 The Settlement Agreement and Mutual Release provides for reservation of this Court’s 25 jurisdiction to enforce the terms of the Settlement Agreement under Cal. Civ. Pro. Code § 664. 26 27 8 28 PETITION TO APPROVE SET EMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT. Petitioner requests that the Court specify on this Petition that it is reserving jurisdiction to enforce terms of the Settlement Agreement and Mutual Release. 19, Trustee and Attorney Fees. The Settlement Agreement provides for $51,162.00 in attorneys and trustees fees. These fees represent less than the total granted by the court over the last three accountings and what will be granted in the order approving the fourth accounting petition. Petitioner is therefore requesting less than has been ordered by the court with regard to trustees and attorneys fees by calculating the amount based on the sale of the property. 10 II. PETITION FOR AUTHORITY TO SELL REAL PROPERTY AND ENTER INTO AN EXLUSIVE RIGHT-TO-SELL I AGREEMENT. 12 20. Petitioner realleges and incorporates the foregoing paragraphs. 13 21. Request for Authority to Sell Real Property. The Petitioner and Successor 14 Trustee, LEO F. BAUTISTA, seeks court authority to sell property necessary to make the 15 distributions outlined above and to pay the fees and costs of the successor trustee and of his 16 17 attorneys’, Solan, Park & Robello. 18 22. Accordingly, the Successor Trustee need authority to sell real property located at 19 134 Athens Street, San Francisco, California, more particularly described as follows: 20 COMMENCING at point on the northwesterly line of Athens Street, distant 21 thereon 200 feet southwesterly from the southwesterly line of Peru Street; running thence southwesterly along said line of Athens Street 25 feet; thence 22 at a right angle northwesterly 100 feet; thence at a right angle northeasterly 25 feet; and thence at a right angle southwesterly 100 feet to the point of 23 commencement. 24 BEING part of Block 67, EXCELSIOR HOMESTEAD ASSOCIATION. 25 23. Petitioner and all five beneficiaries of the Trust have stipulated and have agreed to 26 sell the trusts interest in the 134 Athens Street property. 2 9 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND. TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT. 24, Request for Authority to Enter into Exclusive Right-to-Sell Agreement. As part of the sale process, Petitioner will require assistance of an experienced real estate agent. Petitioner respectfully requests authority to enter into an exclusive listing agreement with realtor Fetemah Nikchehi of Own Real Estate, to assist in the listing, marketing, negotiation, and ultimate sale of the property. The listing shall not exceed one hundred and eighty (180) days from the date of the court order authorizing Petitioner to retain said realtor, with any offer of sale subject to the approval of the court and subject to overbid, and for total commission of no more than two percent (2%) to be paid to the seller’s agent and no more than two percent 2% to be 10 paid to the buyer’s agent. The proposed exclusive listing agreement is attached hereto and made 11 part hereof as Exhibit B. 12 25. No Affiliate Relation. During the period of the account, there was no 13 relationship or affiliation between Petitioner and any agent hired by Petitioner during the 14 accounting. 15 26. Trust Beneficiaries. The names, ages, and addresses of the beneficiaries of the 16 17 Trust as known to the Petitioner are: 18 Brian Leland Chow Adult 25 Essex St. #609 San Francisco, CA 94105 19 Fiona Chow Adult 9961 Waxberry Court 20 Las Vegas, NV 89178 21 Justin Chow Adult 9961 Waxberry Court 22 Las Vegas, NV 89178 23 Crystal Chow Adult 125 Olmstead Street, San Francisco, CA 94134 24 25 Jeannette Lau St. Onge Adult 1893 Sweetwood Drive Daly City, CA 94015 26 27 10 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND. TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT 27. Request for Special Notice. Request for Special Notice has been requested by 1 2 the following parties and will be notified of the filing of this instant Petition: 3 Brian J. Trowbridge, Esq. Trowbridge Law Office 1901 Harrison Street, 14" Floor Oakland, California 94612 Attorneys for Alexander Korn D/B/A Catamount Designs WHEREFORE, Petitioner respectfully requests that the Court order as follows: 1 No further notice be required; 2 The Settlement and Mutual Release be approved in its entirety; 10 3 This Court reserves jurisdiction pursuant to Cal. Civ. Pro. Code § 664.6 to enforce 11 the terms of the Partial Settlement Agreement and Mutual Release; 12 4 Authorizing and directing Successor Trustee, LEO F. BAUTISTA, to discontinue 13 14 rebuild of real property at 134 Athens, San Francisco, California; 15 5 Authorizing and directing Successor Trustee, LEO F. BAUTISTA, to sell the real 16 property located at 134 Athens, San Francisco, California, more particularly described as 17 follows: 18 COMMENCING at point on the northwesterly line of Athens Street, distant 19 thereon 200 feet southwesterly from the southwesterly line of Peru Street; running thence southwesterly along said line of Athens Street 25 feet; thence 20 at a right angle northwesterly 100 feet; thence at a right angle northeasterly 21 25 feet; and thence at a right angle southwesterly 100 feet to the point of commencement. 22 BEING part of Block 67, EXCELSIOR HOMESTEAD ASSOCIATION. 23 6. Authorizing and directing Successor Trustee, LEO F. BAUTISTA, to enter into 24 25 an exclusive right-to-sell agreement with Fetemah Nikchehi of Keller Williams Realty, to assist 26 in the listing, marketing, negotiation, and ultimate sale of the property. The listing shall not 27 lI 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT exceed one hundred and twenty (120) days from the date of the court order authorizing Petitioner to retain said realtor, with any offer of sale subject to the approved of the court and subject to overbid, and for total commission of no more than two percent (2%) to be paid to the seller’s agent and no more than two percent 2% to be paid to the buyer’s agent. 7 For other such orders as the Court deems just and necessary. Dated: /0//2/27 Respectfully Submitted, SOLAN, PARK & ROBELLO 10 BY: Y- 11 SHEILA K. ROBELLO Attorney for Petitioner, Leo F. Bautista 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 12 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND. TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT. VERIFICATION I, Leo F. Bautista, am the Successor Trustee of the San Lee and Mui Chow Lee 3 Revocable Trust dated March 24, 1995. as amended, and am the petitioner herein, | have read the foregoing PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE: AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT 8 and know its contents. The matters stated therein are truc of my own knowledge, save and except 10 those matters stated on information and believe and, as to those matters, | believe them to be 1] true. 12 { declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, l4 Executed this SE day of October, 2021, a Le California. 15 16 18 19 Leo F. Bautisia Ia, 20 21 22 22 23 24 25 26 27 13 28 PETITION TO APPROV TL NT AGRI Mi FAND M ML AND ENFORCEM oF A MENT PURSUA) o¢ PRO, yp! 66 R ST EC RETY SELL REAL PROPERTY AND ro 1. HT-10. IREEM VERIFICATION I, Sheila K. Robello, am the attorney for Leo F. Bautista, the Successor Trustee of the San Lee and Mui Chow Lee Revocable Trust dated March 24, 1995, as amended. I have read the foregoing PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT and know its contents. The matters stated therein as they related to the petition for attorneys’ fees 10 and reimbursement of costs are true of my own knowledge, save and except those matters stated 11 on information and believe and, as to those matters, I believe them to be true. 12 I declare under penalty of perjury under the laws of the State of California that the 13 foregoing is true and correct. 14 Executed this 19" day of October 2021, at San Francisco, California. 15 16 17 Mae Sheila K. Robello Pte 18 19 20 21 22 23 24 25 26 27 14 28 PETITION TO APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE; AND ENFORCEMENT OF SETTLEMENT AGREEMENT PURSUANT TO CAL CIV. PRO. CODE § 664.6; REQUEST FOR AUTHORITY TO SELL REAL PROPERTY AND TO ENTER INTO AN EXCLUSIVE RIGHT-TO-SELL AGREEMENT SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE This Settlement Agreement and Mutual General Release (“this Agreement”) is made effective as of September 16, 2021, by and between LEO F. BAUTISTA (“Bautista”) as Trustee of the San Lee and Mui Chow Lee Revocable Trust dated March 24, 1995, as amended December 22, 2004 (“the Trust”), Sheila K. Robello on behalfof Solan, Park & Robello (“SPR”), attorney for Leo F. Bautista, JEANNETTE LAU ST. ONGE (“Jeannette”) and CRYSTAL CHOW (“Crystal”) (collectively referred to as “Parties” and/or “Remainder Beneficiaries”) in their individual capacities as beneficiaries or claimaints to the Trust (San Francisco Superior Court Case No, PTR-12-296124). A Nature and Effect of Agreement. 1 This Agreement consists of a compromise and settlement of each party’s claims against the others arising from the circumstances/disputes described below in Paragraph B, and a release given by each party to the other party relinquishing all claims arising from the circumstances, dispute, and litigation described below. By executing this Agreement, each party intends to, and does hereby, extinguish all obligations existing between them and arising from the circumstances and dispute described herein, unless otherwise specifically excepted and/or excluded in this Agreement. 2 This Agreement is not and shall not be treated as an admission of liability by any ofthe parties. 3 This Agreement is conditioned upon the approval of this Agreement by the Probate Department of the Superior Court of California, County of San Francisco, Case No. PTR-12-296124, because this trust is under court supervision. The entire Agreement will become binding immediately upon approval by the Probate Court. If this Agreement is not approved by the Probate Court, the agreement is null and void, and shall not be disclosed in arbitration and/or litigation, as it will be considered confidential settlement communication. 4 This Agreement, if approved by the Probate Court, shall bind upon and for the benefit of the Parties and their business entities, affiliated companies, insurers, representatives, predecessors, and successors in interest, successor trustees, heirs, assigns, beneficiaries, and their past, present and future principals, officers, directors, shareholders, servants, members, partners, subsidiaries, subcontractors, affiliated companies, agents, employees, employers, assignees, devisees, representatives, and attorneys. B Nature and Status of Circumstances/Dispute. 1 This Trust is for the benefit of five beneficiaries—three specific bequest beneficiaries and two remainder beneficiaries entitled to the residue of the trust estate. During EXHIBIT 33 3 A the course of the trust administration, disputes arose regarding the real property located at 134 Athens Street, San Francisco, California, which have stalled the sale ofthe real property and ultimately the distribution of the proceeds to the beneficiaries of this trust. 2. It is the Parties’ intention to settle and dispose of, fully and completely, all claims, demands, and causes of action, whether known or unknown relating to or arising out of the circumstances described herein and in the pleadings in the civil action and binding private arbitration. This Agreement shall govern the compensation of the trustee and his counsel necessary to sell the property and distribute the sales proceeds and complete the administration of the trust, for which they will receive no further compensation or fees, but will be reimbursed for out of pocket expenses incurred after the date this Agreement is effective. Cc. Terms of Settlement Agreement. The property to be sold with Fetemah Nikchehi for a total commission of four percent (4%) and Fatemah Nikchehi will open excrow with Kelin M. Ingalls at First American Title Company and the Trustee will sign the papers to list he property within five days of receipt of court approval of this settlement agreement; The sale of the property shall include disclosures containing the approved plans and all other documents agreed upon by the parties as necessary for the sale of the property. The parties have agreed that all documents to be provided to the buyer are contained in a drop box which shall be referred to herein as the “Disclosure Drop box.” The parties have reviewed and approved of the documents provided and have agreed that the “Disclosure Drop box” contains all documents that the parties have provided to each other and intend as of the date of this agreement to provide to prospective buyers or their agents and contractors, except for a copy of the permit extension issued in January of 2021. In addition, the Drop Box will also contain any additional documents that the parties become aware of that the trustee agrees should be included in the disclosures. 3. The following items to be paid from escrow in the following order of priority, in the event funds received are inadequate to cover all of the items below: a. Realtor commission (subject to change but estimated at $20,000 based on a $500,000 sale at four percent (4%)); All costs of sale. $5,000 (estimated) (for items including but not limited to escrow fees, transfer tax, notary fees etc.)*; $68,000 to Architect Alex Korn in exchange for release of the Architect’s lien on the property plus interest at ten percent (10%) per annum on Architect’s Lien beginning six months after the approval of the settlement agreement with the Architect and through the date of payment of the lien. d. Accrued and unpaid property tax (plus any accrued interest or penalties through close of escrow- Currently at $7,200); € $12,099.52 Cost advanced by SPR and Bautista as follows: I $4,912.12 to Bautista (this includes costs for yard work, tax preparation fee, bond, extension fee, fencing to date); W $3,464.57 to SPR ($1,252.57 from 3" account, $462 filing fee 3 acct, $450 filing fee petition for instruction and $1,300 unreimbursed arbitration fee); iii $1,695.00 for anticipated expenses to SPR ($465 filing fee for petition for settlement and authority to sell, $465 for 4"" acct, $465 for final accounting and $300 messenger fees)*; iv $718.69 anticipated property insurance tax due 3/19/21; v $109.44 anticipated annual fencing costs*; and vi $1,200 anticipated annual yard work* $5,000 for reserve for final tax preparation; $170,000 for payment to the three pecuniary beneficiaries or to the remainder beneficiaries as follows: The sum of$50,000 each for Fiona Chow and Justin Chow shall be held in trust and a portion or all of this sum shall be distributed to the remainder beneficiaries for the sole purpose of reimbursing them for payment to their attorneys, Bryan Hinhsaw, based on amounts and payments as directed by either or both of Crystal Chow or Jeanette Lau. The total payments shall be no greater than 40% (or 20% for each of them)of the total fees and expenses paid by Jeannette Lau and Crystal Chow to Bryan Hinshaw, pursuant to the terms and conditions of the written agreements between each of them and the remainder beneficiaries; The sum of $70,000 shall be distributed to Brian Chow ; $51,162 Trustee and Attorney fees to SPR and Bautitsta to be allocated as agreed to by SPR and Bautista in a separate agreement; The trustee shall retain funds in escrow from the distribution to residual beneficiaries for payment of fees and costs due and owing to Bryan Hinshaw, attorney for the remainder beneficiaries, upon receipt of joint instructions from Bryan Hinshaw and the remainder beneficiaries. It is anticipated that upon the sale of the property, there may be a need for a reserve for fees to complete and address matters arising from the sale and closing of escrow. In the event of a dispute between the remainder beneficiaries over the amount due, the undisputed portion shall be paid and the disputed portion held until the dispute is resolved. Remainder Beneficiaries Jeanette and Crystal will receive all remaining assets after payment of the above for any sale price up to $700,000. For purposes of 3 illustration only, the remainder interest would be approximate $160,045.48, less payment of fees to Bryan Hinshaw for a sale at $500,000 and approximately $352,045.48 for a sale of $700,000, less payment of fees to Bryan Hinshaw, adjusted for realtor fees. If the property sells for more than $700,000 then the additional net sale proceeds shall be distribued 30% to Bautista and SPR up to the total amount of court ordered fees and 70% to remainder beneficiaries Jeannette and Crystal. 4. The Remainder Beneficiaries agree to be responsible for any capital gain taxes on the sale of the property; except that in the event that the property sells for more than $700,000, Bautista and SPR shall pay 30% of the capital gains tax on the portion of the gain above $700,000. Any remaining amounts from the reserve will be proportionately distributed to the remainder beneficiaries. The proposal outlines the order of payment and shall be used as the escrow instructions with Kelin M. Ingalls at First American Title Company. Mutual General Releases D. Releases by all Parties. Subject to the obligations imposed by this Agreement or otherwise available by law, each Party, for himself//herself and for each of his/her agents, assigns, successors, heirs, children, devisees, personal representatives, insurers, attorneys, spouses and employees, hereby fully and forever release and discharges each other Party, both individually and in any representative capacity, and each of his/her respective agents, successors, heirs, personal representatives, insurers, children, beneficiaries, attorneys, spouses, and assigns, from and against any and all claims, causes of action, liabilities, duties, suits, fees, costs, damage, and damages, arising from or concerning in any way this dispute or trust matter. E. Civil Code §1542 Waivers. The Parties do hereby waive the provisions of Section 1542 of the Civil Code, which reads as follows: A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor or released party. The Parties understand that there may be facts known or unknown to each ofthem which might affect this Agreement, and that other, greater of different damages may exist from those pleaded. Nonetheless, each of the Parties agree that the forgoing releases are to be in all 4 respects full and final releases as to the subject matter thereof, and are intended to release all such claims, known or unknown, suspected or unsuspected, foreseen or unforeseen. F. Assignment. The Parties represent to each other that (i) the undersigned have not assigned, transferred, sold, pledged or otherwise encumbered the undersigned’s’ interest in the claims, liens, demands, damages, debts, actions, suits, judgements, liabil ies, losses, costs, and expenses herein released and (ii) the undersigned have not filed any action or proceedings ofany nature against the Parties herein released except as specifically set forth above, and covenant not to do so. G. Counterparts. This Agreement (or its execution pages) may be executed in one of more counterparts and as executed shall constitute one and the same agreement binding upon each of the Parties hereto and on each party so signing. H. Entire Agreement. This Agreement constitutes the complete and entire agreement of the Parties as to its subject matter, and supersedes all prior correspondence, negotiations, drafts or agreements, oral or written. Cooperation. The Parties agree to promptly take whatever steps, and execute, acknowledge, and deliver whatever documents, may be necessary or desirable to effectuate the purposes of this Agreement. J. Construction. This Agreement and any claimed uncertainty or ambiguity herein shall not be constructed for or against any, but shall instead be constructed as if all Parties to this Agreement jointly prepared it. K Voluntary Execution. Each of the Parties hereto declares that, prior to and in connection with execution of this Agreement, such party has been apprised of sufficient relevant data, either through experts, legal counsel or other sources of that party’s own selection, so as to exercise that party’s judgement intelligently in