Preview
ONE MARITIME PLAZA.
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111-3598
SHARTSIS FRIESE LLP
SHARTSIS FRIESE LLP
ROBERT CHARLES WARD (Bar #160824) ELECTRONICALLY
One Maritime Plaza, Eighteenth Floor FILED
San Francisco, CA 94111-3598 Superior Court of Catifornia,
Telephone: (415) 421-6500 County of San Francisco
Facsimile: (415) 421-2922 10/12/2017
Email: rward@sflaw.com Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk
Attorneys for Defendant DESMOND TAN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCELYN LEE, Case No. CGC 15-547404
Plaintiff, DECLARATION OF ROBERT
CHARLES WARD IN SUPPORT OF
v. DESMOND TAN’S MEMORANDUM IN
SUPPORT OF PROPOSED ORDER
DESMOND TAN, and DOES 1-20, inclusive, AND JUDGMENT
Defendants. Reservation No. 08110908-01
Original Date: September 8, 2017
New Date: October 30, 2017
[Continued by Judge Kahn on 10/6/17]
Time: 9:30 a.m.
Dept.: 302
Judge: Hon. Harold E. Kahn
Complaint Filed: August 17, 2015
Trial Date: June 19, 2017
I, ROBERT CHARLES WARD, declare:
1. J am an attorney admitted to practice before all courts of the State of California. I
am a member of the firm of Shartsis Friese LLP, counsel of record for Defendant Desmond Tan
in this action. I have personal knowledge of the facts stated herein and, if called as a witness, I
could and would testify thereto under oath.
2. Attached hereto as Exhibit 1 is a true and correct copy of Robert Matz’s April 4,
2016 email to me.
ii
Case No. DECLARATION OF WARD ISO DESMOND TAN’S
CGC 15-547404 MEMORANDUM ISO PROPOSED ORDER AND JUDGMENTONE MARITIME PLAZA
EIGHTEENTH FLOOR,
SAN FRANCISCO, CA 941113598
3. Attached hereto as Exhibit 2 is a true and correct copy of Robert Matz’s October
12, 2016 email to me.
4. Attached hereto as Exhibit 3 is a true and correct copy of an excerpt from
Desmond Tan’s mediation statement. Page 14 is another confirmation that ownership of the
packaged food business and use of the Burma SuperStar trademark for purposes other than the
existing restaurants were subjects of the settlement negotiations between Lee and Tan.
5. Attached hereto as Exhibit 4 is a true and correct copy of the Settlement Terms
entered into on March 24, 2017.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and of my personal knowledge. Executed this 11th day of October,
Dl Arn LY
ROBERT CHARLES WARD *
2017 at San Francisco, California.
8062769
-2-
Case No. DECLARATION OF WARD ISO DESMOND TAN’S
CGC 15-547404 MEMORANDUM ISO PROPOSED ORDER AND JUDGMENTEXHIBIT 1Seabrook, Elizabeth
From: Ward, Robert Charles
Sent: Thursday, April 14, 2016 4:11 PM
To: Ing, Janis L.
Subject: FW: Lee/Tan: Joycelyn's Lee's Initial Thoughts Re: Division of Monies, Properties,
Businesses, Intellectual Property, Etc.
From: Robert Matz [mailto:robert@matzlawgroup.|legal]
Sent: Monday, April 04, 2016 5:32 PM
To: Ward, Robert Charles
Subject: Re: Lee/Tan: Joycelyn's Lee's Initial Thoughts Re: Division of Monies, Properties, Businesses, Intellectual
Property, Etc.
Extension granted.
Sent from Robert Matz's iPhone (510) 599-6323; May Contain Information Protected By Attorney-Client Privilege, or
Reference Trade Secret, Confidential, or Proprietary Information. Use/Review Intended for Recipient Only.
On Apr 4, 2016, at 4:04 PM, Ward, Robert Charles wrote:
Robert-
Iam working on a substantive response to your outline below. While I have Desmond's initial
input, I need to get it into writing, and allow time for Desmond and for James Lee to review. I
think this can all happen such that I have a response to you by Wednesday.
Td like a 15 day extension on the response to the complaint, which otherwise would be due this
Friday, April 8. If you will not agree to an extension, I will have to shift my focus to drafting
the answer and the cross-complaint and settlement discussions will have to be put on hold to
allow time for me to do so.
Please let me know as soon as possible. I am responding to your other emails separately.
Robert
Robert Charles Ward
Shartsis Friese LLP
One Maritime Plaza
San Francisco, CA 94111
415-421-6500
www. sflaw.com
From: Robert Matz [mailto:robert@matzlawaroup. legal]
Sent: Monday, March 28, 2016 5:02 PM
To: Ward, Robert Charles
Subject: Lee/Tan: Joycelyn's Lee's Initial Thoughts Re: Division of Monies, Properties, Businesses,
Intellectual Property, Etc.SETTLEMENT COMMUNICATION
CONFIDENTIAL AND PRIVILEGED PURSUANT TO CALIFORNIA
EVIDENCE CODE SECTIONS 1152, 1154, and FEDERAL RULES OF
EVIDENCE SECTION 408
Robert:
The following ate my client’s initial thoughts as to a possible structure for a settlement
between the parties. As this takes into account only information known to her at
ptesent, some of these deal points could change depending upon latet-acquired facts.
1. Burma Superstar SF: Joycelyn continues to operate Burma Superstar in San
Francisco and can sell her rights in this restaurant to a third party if she so
desires, Desmond assists in paying the cost of a new lease, Desmond is taken
off his salatied position at Burma Superstar in San Francisco, Joycelyn is the
co-owner of all Burma Superstat recipes and other trade secrets and can use
them and license others to use them.
2. Burma Superstar Trademartk/Franchising Rights. Joycelyn should be
listed as a co-owner of the federally registered trademark and can use it in
connection with her activities and license others to use it as well. Joycelyn is
given an exclusive right to use the Burma Superstar trademark in San Francisco,
including uses by affiliated entities. Desmond agrees to supply tea leaves for
the tea leaf salad for any Burma Superstar restaurant in SF at cost plus 2%. As
for franchising opportunities, Joycelyn is entitled to 50% of any franchise fees
obtained for Burma Superstat or any entity using Burma Superstar recipes,
trade dress, trademarks, etc., and 50% of any royalty payment obtained from
any Burma Superstar related franchise.
3. Tea Leaf Salad and Other Retail. To the extent the product derives from
Burma Superstar recipes, Joycelyn is given either a lump sum of money of a
reasonable royalty for each product sold. This would include the tea leaf salad,
lotus chips, cutties, hot sauces, and other products.
4. B-Stat/Beehive Café. The lease is assigned to an entity owned by Joycelyn
and she is allowed to use these premises as she sees fit.
5. Eats/B-Star: To the extent Joycelyn has not shated in the profits of these
entetptises but has worked for them for yeats, she needs to be financially
compensated for this work. :
6. Tax Liability. As Desmond and the accountant have controlled the income
from Burma Superstar and been responsible for taxes (both corporate and
petsonal) Desmond needs to agree that in the event of an audit of either Burma
Superstar SF, or Joycelyn’s personal taxes, he will pay for legal representation
2and — if the audit compels the payment of additional monies — he will be
responsible for the payment of those taxes.
7. Book. Joycelyn is concerned the book will be presenting her in a false light
and/or that she will be effectively written out of its history. The contributions
she made to the enterprise ate something Joycelyn will need on her resume, so
to speak, going forward. Desmond needs to work with the publisher to get her
an advance review of the work before it goes to printing so she can review it
and ensure she is being portrayed accurately and that her contributions are
noted. Joycelyn is entitled to a portion of any advance for the book and the
ptoceeds of the book.
8. Condominium. Joycelyn retains ownership of the condominium. A valuation
of this property and the assets of all other entities is performed to determine if
Joycelyn is receiving equivalent value. This evaluation needs to take into
account that Joycelyn contributed her own monies to the condominium ovet
the yeats.
9. Access to Books and Records and Accounting. Joycelyn needs to
informed of all cash Desmond has taken from Burma Superstar SF and all
loans Desmond has taken out as Burma Superstar ot in connection with any
Burma Supetstat entity, she needs to know the source of the money he used to
purchase 991 Mission Street and fund his other restaurants and
ventures. Joycelyn believes the money came from Burma Superstar SF. If so,
he needs to agtee to pay it back. She’d also like to see the books for Burma
Superstar Oakland and Burma Superstar Alameda and all other entities
Desmond is involved with in order to evaluate whether she is receiving a fair
share of the proceeds of their enterprise.
10. Replenish Trust for Daughter. At the time the house was sold, Joycelyn
used $100,000 of the proceeds to fund a trust for their daughtet’s
education. Some money has been taken out; there needs to be a mechanism
wheteby Desmond agrees to contribute to this fund to keep it at a pre-
determined level (pethaps enough money to pay for 4 years at a university).
11.
5
Equalizing Payment/Cooperation/Assistance. As set forth above,
Joycelyn is likely entitled to an equalizing payment from Desmond because she
did not teceive a share of the profits from B-Stat, Eats but worked for them
for yeats, and because funds were taken out of Burma SF to fund Burma
Oakland and Alameda. Joycelyn is interested in purchasing a building. Some
of the cash payment would be used fot a down payment, but Joycelyn may
need Desmond’s assistance in obtaining financing for this building.
With respect to books and records, although you noted there might be issues
pteventing a true/accurate accounting, thete should be records of monies taken out of
Burma SF by Desmond over the years, and certainly records of monies in his
3possession over the yeats. As set forth in the Complaint, the money to fund all these
ventutes came from Burma Superstat SF. Therefore, it is only right that thete be
some accounting of this use of funds and to the extent Desmond has dipped more
heavily into those funds than Joycelyn — which is likely true since Joycelyn did not
receive a salary for her work at Burma SF — he should make an equalizing payment.
Please review this with your client and then we can discuss next steps. As mentioned
above, these ate only Joycelyn’s initial thoughts and she understands there will likely
be significant back and forth before an agreement can be reached.
Regards,
Robert
Robert C. Matz, Managing Partner |Matz Law Group] 2425 Webb Avenue, Suite 200,
Alameda, CA 94501|510-263-8775| Mobile: 510-599-6323|mailto:robert@matzlawgroup.legal
NOTICE: This e-mail may contain information that is attorney-client privileged or attorney
work product. If you are not the intended recipient, please notify the sender and then delete
the e-mail and all attachments. Thank you for your anticipated cooperation,EXHIBIT 2Seabrook, Elizabeth
From: Ward, Robert Charles
Sent: Tuesday, October 18, 2016 1:28 PM
To: Ing, Janis L.
Subject: _ FW: Lee/Tan: Joycelyn Needs Copies of Tax Returns for All Restaurant Entities and
Maya Foods
From: Robert Matz [mailto:robert@matzlawgroup.legal]
Sent: Wednesday, October 12, 2016 3:47 AM
To: Ward, Robert Charles
Subject: Re: Lee/Tan: Joycelyn Needs Copies of Tax Returns for All Restaurant Entities and Maya Foods
Yes, let's push the date slightly. The more info that is provided, the more likely it is the parties will settle.
I'll be in court until early afternoon tomorrow, but reachable by email.
Robert
Sent from Robert Matz's iPhone (510) 599-6323; May Contain Information Protected By Attorney-Client Privilege, or
Reference Trade Secret, Confidential, or Proprietary Information. Use/Review Intended for Recipient Only.
On Oct 11, 2016, at 6:03 PM, Ward, Robert Charles wrote:
Robert-
Getting you the tax returns for the restaurants by this Friday should not be a problem, although
I will have to discuss the Mya Foods return with my client. This Friday is also, per JAMS rules,
our due date for mediation statements. However, I propose that we agree to push that date to
next Tuesday, October 18. I don’t think Judge Westerfield plans to review mediation statements
a week in advance, so I am sure JAMS will not have a problem with this. Please let me know if
you are in agreement.
Thanks,
Robert
Robert Charles Ward
Shartsis Friese LLP
One Maritime Plaza
San Francisco, CA 94111
www.sflaw.com
From: Robert Matz [mailto:robert@matzlawaroup.legal]
Sent: Tuesday, October 11, 2016 2:11 PM
To: Ward, Robert Charles
Subject: Lee/Tan: Joycelyn Needs Copies of Tax Returns for All Restaurant Entities and Maya FoodsRobett:
A while ago, you agreed to produce tax returns for all of the restaurant entities once
we decided on a mediator and a date subject to mutual nondisclosure agreements. (See
Below).
Joycelyn would like to avail herself of this information and she and I agree to keep the
tax returns received confidential and we will not disclose this to any third parties other
than possibly one other attorney assisting in the mediation and an accountant. Ideally,
we'd get Mya Foods returns as well.
Please confirm these returns will be sent to me on or before Friday, October 14, 2016
by 5:00 p.m.
Thanks,
Robert
Robert C. Matz, Managing Partner |Matz Law Group| 2425 Webb Avenue, Suite 200,
Alameda, CA 94s01|510-263-8775|Mobile: 510-599-6323|mailto:robert@matzlawgroup.legal
NOTICE: This e-mail may contain information that is attorney-client privileged or attorney
work product, If you are not the intended recipient, please notify the sender and then delete
the e-mail and all attachments. Thank you for your anticipated cooperation,
From: Robert Matz
Sent: Tuesday, June 7, 2016 3:59 PM
To: Ward, Robert Charles
Cc: James Lee
Subject: Re: Lee/Tan: Status Report, Moving Forward - Confidential Settlement Communication
Yes. We need to figure out a venue, format, and mediator.
Send me your proposals in this regard.
Robert
Sent from Robert Matz's iPhone (510) 599-6323; May Contain Information Protected By Attorney-Client
Privilege, or Reference Trade Secret, Confidential, or Proprietary Information. Use/Review Intended for
Recipient Only.
On Jun 7, 2016, at 3:15 PM, Ward, Robert Charles wrote:Robert-
I'm following up. Are we going to be proceeding with scheduling a mediation?
Robert
Robert Charles Ward
Shartsis Friese LLP
One Maritime Plaza
San Francisco, CA 94111
www. sflaw.com
From: Ward, Robert Charles
Sent: Friday, May 27, 2016 11:05 AM
Te ‘obert Matz"
Cc: ‘James Lee!
Subject: RE: Lee/Tan: Status Report, Moving Forward - Confidential Settlement
Communication
Robert-
As I've tried to make clear in the past, Desmond is not going to provide all
financial information that your client seeks. They were not married. Desmond will
have a privilege and not have to produce his personal returns in litigation. While
they still may co-own some businesses, Desmond has been operating separately
from Joycelyn for a long time now, just as Joycelyn has been free to pursue her
own business interests in that time.
That said, Desmond will produce returns for the last three years for all of the
restaurant entities, subject to appropriate and mutual nondisclosure agreements.
Desmond will produce the returns when we have confirmed a mediator, a
mediation date and both sides have posted their half of the mediation fees.
Given that most good mediators book 30 to 60 days out, this will give you and
your client adequate time to review what Desmond provides. Desmond does not
want to use Ms. Ly. She may be an effective settlement judge in a department
that handles primarily asbestos and mass tort cases. We have no basis to
conclude that she is a good choice for a complicated business dissolution. Iam a
strong believer that you get what you pay for when you hire neutrals. Desmond
concurs. We want a JAMS judge or the equivalent. If you want to nominate 5
candidates from JAMS who are acceptable to you and your client, I'll review
them with Desmond and we'll probably be able to agree on one of them.
Let's do this quickly. I know there is a holiday weekend commencing, and you're
in court today, but let’s get a mediation calendared and try to make that happen
next week (the scheduling, not the mediation, obviously). I've tried to make clear
that Desmond is more accommodating the sooner we settle. The longer this
waits, the more inclined Desmond will be to see where the legal chips fall.
RobertFrom: Robert Matz [mailto:robert@matzlawaroup. legal]
Sent: Thursday, May 19, 2016 11:17 AM
To: Ward, Robert Charles
Subject: Lee/Tan: Status Report, Moving Forward
Robert:
Apologies for the radio silence; I have been focusing on the mandatory
settlement conference in the e-coli case filed against Burma Superstar SF
fot obvious teasons.
‘The case was settled at the mandatory conference yesterday, and I wrote
the ad hoc settlement agreement (a formal one will be drafted and entered
into later) that specifically released not only Burma SF and Joycelyn, but
also your client, Desmond Tan, even though he had no lawyer present. I
thought it prudent to do so given Plaintiffs were contemplating deposing
him, and were seeking $3.2 million in compensation. I hope your client
will see this as a demonstration of good faith.
To get our client’s property division back on track, can you please
confirm that Desmond is making his personal return and returns for all
businesses he is involved with available to Joycelyn? ‘The accountant is
once again saying she does not have authority to do this. Also, can you
confirm that Joycelyn will be able to access all tax returns (¢., not
limited to the last couple years).
Once we (a) get access to the returns, and (b) complete this review, we
should be able to get back to you with respect to your offer.
By the way, yesterday’s mandatory settlement conference was before
Pang Ly, a former judge who is now in charge of a settlement division
within SF Superior Court. She is a vety good mediator and may be a
good fit for the patties (she is local, she is familiar with Burma SP, e¢z); 1
was wondering if your client would consider participating in a settlement
conference before Pang Ly. She said that although out judge would
have to refer the case to her, she could indicate to the judge that she has
familiarity with Burma SF due to the litigation and for that reason might
be a good fit.
Let me know,
RobertRobert C. Matz, Managing Partner |Matz Law Group| 2425 Webb Avenue,
Suite 200, Alameda, CA 94501|510-263-8775| Mobile: s10-s99-
6323|mailto:robert@matzlawgroup.legal
NOTICE: This e-mail may contain information that is attorney-client
privileged or attorney work product. If you are not the intended recipient,
please notify the sender and then delete the e-mail and all attachments. Thank
you for your anticipated cooperation.EXHIBIT 3SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR,
SAN FRANCISCO, CA 94111-3598
Ce IW DAH A WN
Bw NNN YR RN ND Be Be ee ee ee ee
eo ND AW BF BW YN KF SCS De YD DH FF BW NY KY SCS
SHARTSIS FRIESE LLP
ROBERT CHARLES WARD (Bar #160824)
One Maritime Plaza, Eighteenth Floor
San Francisco, CA 94111-3598
Telephone; (415) 421-6500
Facsimile: (415) 421-2922
Email: rward@sflaw.com
Attorneys for Defendant
DESMOND TAN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCELYN LEE, Case No. CGC 15-547404
Plaintiff, CONFIDENTIAL MEDIATION
STATEMENT OF RESPONDENT
v. DESMOND TAN
DESMOND TAN, and DOES 1-20, inclusive, Date: October 21, 2016
Time: 10:00 a.m.
Defendants. Location: JAMS
Two Embarcadero Center
Suite 1500
San Francisco, CA 94111
Neutral: © Hon, Rebecca Westerfield
(Ret.)
I INTRODUCTION
This mediation is an attempt to unwind the business interests of Desmond Tan and
Joycelyn Lee. The assets involved are a number of profitable restaurants, a trademark, and some
real estate, There are no written contracts between Tan and Lee that would help the mediator
assess the legal nature of their relationship and who now is entitled to what. Tan is an aggressive
entrepreneur who found the capital to buy the original Burma Superstar restaurant in San
Francisco and, after building Burma Superstar into a profitable and critically acclaimed
restaurant, engineered the founding of a number of new, also successful restaurants. Lee, who
was in a committed relationship with Tan at the time that Tan acquired Burma Superstar SF,
originally came to work part-time for Burma Superstar, for which she was paid. After losing her
-1-
Case No. CONFIDENTIAL MEDIATION STATEMENT OF
CGC 15-547404 RESPONDENT DESMOND TANEIGHTEENTH FLOOR,
SAN FRANCISCO, CA 94111-3598
SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
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gross revenues of the East Bay restaurants, and that income stream is reasonably reduced to a
present-valued dollar amount. This would not amount to a one-half ownership interested in the
East Bay restaurants but rather would be a cash amount owed by those businesses to the owner of
the trademark (East-West Holdings). If Tan and Lee are half owners of that business, Lee would
only be entitled, in a partnership dissolution analysis as noted above, to one-half of that liquidated
amount. If she wants:to emerge from this with full ownership of the Burma Superstar SF
businesses, an intellectual property approach would not change her owing Tan to buy him out.
Vv. SETTLEMENT ALTERNATIVES
Tan is offering to confirm the status quo. Lee gets the townhouse on California and the
three Burma Superstar SF restaurants (including B Star and Eats), This gives her over $1 million
in annual income. She will have to work hard to keep those restaurants operating at the high level
that they are, because that is the life of a restaurateur, But Lee claims to have worked hard all
along, to have made valuable contributions to the restaurants, so this demands nothing more of
her than what she claims to have been doing. Tan would keep the two East Bay Burma Superstar
businesses and Burma Love, Mya Myanmar (the nascent packaged food company), and the real
estate that is in his name in the East Bay. As of today, this is a very close to even split in terms of
the annual net income of the various businesses, and perhaps generous to Lee with regard to real
estate. The Burma Superstar trademark would be shared through Lee withdrawing her opposition
to the renewal of the mark by Tan, and Tan granting Lee an irrevocable license to use the mark
with both side agreeing to protect the mark, including reasonable limits on use of the mark,
Lee’s disagreement with such a settlement appears to be rooted in some believe that she is
entitled to a share of Tan’s post-separation and future endeavors, As discussed above, claiming
an interest in the new business opportunities that Tan is pursuing is not supported by the facts or
the law. Tan is giving Lee what is right now essentially half of a group of businesses that Tan
created and built. If this were litigated, it would be the same result if Lee wins -- Tan ends up
with half of what there was as of the separation, which Lee acknowledges was the end of their
“partnership.” If Lee loses, she ends up with no ownership of anything, or half-ownership of
what Tan is offering to her. Lee claims are premised on sweat equity, yet she wants a piece of
-14-
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By: 7 ROBERT CHARLES WARD
Attorneys for Defendant DESMOND TAN
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Preview
ONE MARITIME PLAZA. EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP SHARTSIS FRIESE LLP ROBERT CHARLES WARD (Bar #160824) ELECTRONICALLY One Maritime Plaza, Eighteenth Floor FILED San Francisco, CA 94111-3598 Superior Court of Catifornia, Telephone: (415) 421-6500 County of San Francisco Facsimile: (415) 421-2922 10/12/2017 Email: rward@sflaw.com Clerk of the Court BY: WILLIAM TRUPEK Deputy Clerk Attorneys for Defendant DESMOND TAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCELYN LEE, Case No. CGC 15-547404 Plaintiff, DECLARATION OF ROBERT CHARLES WARD IN SUPPORT OF v. DESMOND TAN’S MEMORANDUM IN SUPPORT OF PROPOSED ORDER DESMOND TAN, and DOES 1-20, inclusive, AND JUDGMENT Defendants. Reservation No. 08110908-01 Original Date: September 8, 2017 New Date: October 30, 2017 [Continued by Judge Kahn on 10/6/17] Time: 9:30 a.m. Dept.: 302 Judge: Hon. Harold E. Kahn Complaint Filed: August 17, 2015 Trial Date: June 19, 2017 I, ROBERT CHARLES WARD, declare: 1. J am an attorney admitted to practice before all courts of the State of California. I am a member of the firm of Shartsis Friese LLP, counsel of record for Defendant Desmond Tan in this action. I have personal knowledge of the facts stated herein and, if called as a witness, I could and would testify thereto under oath. 2. Attached hereto as Exhibit 1 is a true and correct copy of Robert Matz’s April 4, 2016 email to me. ii Case No. DECLARATION OF WARD ISO DESMOND TAN’S CGC 15-547404 MEMORANDUM ISO PROPOSED ORDER AND JUDGMENTONE MARITIME PLAZA EIGHTEENTH FLOOR, SAN FRANCISCO, CA 941113598 3. Attached hereto as Exhibit 2 is a true and correct copy of Robert Matz’s October 12, 2016 email to me. 4. Attached hereto as Exhibit 3 is a true and correct copy of an excerpt from Desmond Tan’s mediation statement. Page 14 is another confirmation that ownership of the packaged food business and use of the Burma SuperStar trademark for purposes other than the existing restaurants were subjects of the settlement negotiations between Lee and Tan. 5. Attached hereto as Exhibit 4 is a true and correct copy of the Settlement Terms entered into on March 24, 2017. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and of my personal knowledge. Executed this 11th day of October, Dl Arn LY ROBERT CHARLES WARD * 2017 at San Francisco, California. 8062769 -2- Case No. DECLARATION OF WARD ISO DESMOND TAN’S CGC 15-547404 MEMORANDUM ISO PROPOSED ORDER AND JUDGMENTEXHIBIT 1Seabrook, Elizabeth From: Ward, Robert Charles Sent: Thursday, April 14, 2016 4:11 PM To: Ing, Janis L. Subject: FW: Lee/Tan: Joycelyn's Lee's Initial Thoughts Re: Division of Monies, Properties, Businesses, Intellectual Property, Etc. From: Robert Matz [mailto:robert@matzlawgroup.|legal] Sent: Monday, April 04, 2016 5:32 PM To: Ward, Robert Charles Subject: Re: Lee/Tan: Joycelyn's Lee's Initial Thoughts Re: Division of Monies, Properties, Businesses, Intellectual Property, Etc. Extension granted. Sent from Robert Matz's iPhone (510) 599-6323; May Contain Information Protected By Attorney-Client Privilege, or Reference Trade Secret, Confidential, or Proprietary Information. Use/Review Intended for Recipient Only. On Apr 4, 2016, at 4:04 PM, Ward, Robert Charles wrote: Robert- Iam working on a substantive response to your outline below. While I have Desmond's initial input, I need to get it into writing, and allow time for Desmond and for James Lee to review. I think this can all happen such that I have a response to you by Wednesday. Td like a 15 day extension on the response to the complaint, which otherwise would be due this Friday, April 8. If you will not agree to an extension, I will have to shift my focus to drafting the answer and the cross-complaint and settlement discussions will have to be put on hold to allow time for me to do so. Please let me know as soon as possible. I am responding to your other emails separately. Robert Robert Charles Ward Shartsis Friese LLP One Maritime Plaza San Francisco, CA 94111 415-421-6500 www. sflaw.com From: Robert Matz [mailto:robert@matzlawaroup. legal] Sent: Monday, March 28, 2016 5:02 PM To: Ward, Robert Charles Subject: Lee/Tan: Joycelyn's Lee's Initial Thoughts Re: Division of Monies, Properties, Businesses, Intellectual Property, Etc.SETTLEMENT COMMUNICATION CONFIDENTIAL AND PRIVILEGED PURSUANT TO CALIFORNIA EVIDENCE CODE SECTIONS 1152, 1154, and FEDERAL RULES OF EVIDENCE SECTION 408 Robert: The following ate my client’s initial thoughts as to a possible structure for a settlement between the parties. As this takes into account only information known to her at ptesent, some of these deal points could change depending upon latet-acquired facts. 1. Burma Superstar SF: Joycelyn continues to operate Burma Superstar in San Francisco and can sell her rights in this restaurant to a third party if she so desires, Desmond assists in paying the cost of a new lease, Desmond is taken off his salatied position at Burma Superstar in San Francisco, Joycelyn is the co-owner of all Burma Superstat recipes and other trade secrets and can use them and license others to use them. 2. Burma Superstar Trademartk/Franchising Rights. Joycelyn should be listed as a co-owner of the federally registered trademark and can use it in connection with her activities and license others to use it as well. Joycelyn is given an exclusive right to use the Burma Superstar trademark in San Francisco, including uses by affiliated entities. Desmond agrees to supply tea leaves for the tea leaf salad for any Burma Superstar restaurant in SF at cost plus 2%. As for franchising opportunities, Joycelyn is entitled to 50% of any franchise fees obtained for Burma Superstat or any entity using Burma Superstar recipes, trade dress, trademarks, etc., and 50% of any royalty payment obtained from any Burma Superstar related franchise. 3. Tea Leaf Salad and Other Retail. To the extent the product derives from Burma Superstar recipes, Joycelyn is given either a lump sum of money of a reasonable royalty for each product sold. This would include the tea leaf salad, lotus chips, cutties, hot sauces, and other products. 4. B-Stat/Beehive Café. The lease is assigned to an entity owned by Joycelyn and she is allowed to use these premises as she sees fit. 5. Eats/B-Star: To the extent Joycelyn has not shated in the profits of these entetptises but has worked for them for yeats, she needs to be financially compensated for this work. : 6. Tax Liability. As Desmond and the accountant have controlled the income from Burma Superstar and been responsible for taxes (both corporate and petsonal) Desmond needs to agree that in the event of an audit of either Burma Superstar SF, or Joycelyn’s personal taxes, he will pay for legal representation 2and — if the audit compels the payment of additional monies — he will be responsible for the payment of those taxes. 7. Book. Joycelyn is concerned the book will be presenting her in a false light and/or that she will be effectively written out of its history. The contributions she made to the enterprise ate something Joycelyn will need on her resume, so to speak, going forward. Desmond needs to work with the publisher to get her an advance review of the work before it goes to printing so she can review it and ensure she is being portrayed accurately and that her contributions are noted. Joycelyn is entitled to a portion of any advance for the book and the ptoceeds of the book. 8. Condominium. Joycelyn retains ownership of the condominium. A valuation of this property and the assets of all other entities is performed to determine if Joycelyn is receiving equivalent value. This evaluation needs to take into account that Joycelyn contributed her own monies to the condominium ovet the yeats. 9. Access to Books and Records and Accounting. Joycelyn needs to informed of all cash Desmond has taken from Burma Superstar SF and all loans Desmond has taken out as Burma Superstar ot in connection with any Burma Supetstat entity, she needs to know the source of the money he used to purchase 991 Mission Street and fund his other restaurants and ventures. Joycelyn believes the money came from Burma Superstar SF. If so, he needs to agtee to pay it back. She’d also like to see the books for Burma Superstar Oakland and Burma Superstar Alameda and all other entities Desmond is involved with in order to evaluate whether she is receiving a fair share of the proceeds of their enterprise. 10. Replenish Trust for Daughter. At the time the house was sold, Joycelyn used $100,000 of the proceeds to fund a trust for their daughtet’s education. Some money has been taken out; there needs to be a mechanism wheteby Desmond agrees to contribute to this fund to keep it at a pre- determined level (pethaps enough money to pay for 4 years at a university). 11. 5 Equalizing Payment/Cooperation/Assistance. As set forth above, Joycelyn is likely entitled to an equalizing payment from Desmond because she did not teceive a share of the profits from B-Stat, Eats but worked for them for yeats, and because funds were taken out of Burma SF to fund Burma Oakland and Alameda. Joycelyn is interested in purchasing a building. Some of the cash payment would be used fot a down payment, but Joycelyn may need Desmond’s assistance in obtaining financing for this building. With respect to books and records, although you noted there might be issues pteventing a true/accurate accounting, thete should be records of monies taken out of Burma SF by Desmond over the years, and certainly records of monies in his 3possession over the yeats. As set forth in the Complaint, the money to fund all these ventutes came from Burma Superstat SF. Therefore, it is only right that thete be some accounting of this use of funds and to the extent Desmond has dipped more heavily into those funds than Joycelyn — which is likely true since Joycelyn did not receive a salary for her work at Burma SF — he should make an equalizing payment. Please review this with your client and then we can discuss next steps. As mentioned above, these ate only Joycelyn’s initial thoughts and she understands there will likely be significant back and forth before an agreement can be reached. Regards, Robert Robert C. Matz, Managing Partner |Matz Law Group] 2425 Webb Avenue, Suite 200, Alameda, CA 94501|510-263-8775| Mobile: 510-599-6323|mailto:robert@matzlawgroup.legal NOTICE: This e-mail may contain information that is attorney-client privileged or attorney work product. If you are not the intended recipient, please notify the sender and then delete the e-mail and all attachments. Thank you for your anticipated cooperation,EXHIBIT 2Seabrook, Elizabeth From: Ward, Robert Charles Sent: Tuesday, October 18, 2016 1:28 PM To: Ing, Janis L. Subject: _ FW: Lee/Tan: Joycelyn Needs Copies of Tax Returns for All Restaurant Entities and Maya Foods From: Robert Matz [mailto:robert@matzlawgroup.legal] Sent: Wednesday, October 12, 2016 3:47 AM To: Ward, Robert Charles Subject: Re: Lee/Tan: Joycelyn Needs Copies of Tax Returns for All Restaurant Entities and Maya Foods Yes, let's push the date slightly. The more info that is provided, the more likely it is the parties will settle. I'll be in court until early afternoon tomorrow, but reachable by email. Robert Sent from Robert Matz's iPhone (510) 599-6323; May Contain Information Protected By Attorney-Client Privilege, or Reference Trade Secret, Confidential, or Proprietary Information. Use/Review Intended for Recipient Only. On Oct 11, 2016, at 6:03 PM, Ward, Robert Charles wrote: Robert- Getting you the tax returns for the restaurants by this Friday should not be a problem, although I will have to discuss the Mya Foods return with my client. This Friday is also, per JAMS rules, our due date for mediation statements. However, I propose that we agree to push that date to next Tuesday, October 18. I don’t think Judge Westerfield plans to review mediation statements a week in advance, so I am sure JAMS will not have a problem with this. Please let me know if you are in agreement. Thanks, Robert Robert Charles Ward Shartsis Friese LLP One Maritime Plaza San Francisco, CA 94111 www.sflaw.com From: Robert Matz [mailto:robert@matzlawaroup.legal] Sent: Tuesday, October 11, 2016 2:11 PM To: Ward, Robert Charles Subject: Lee/Tan: Joycelyn Needs Copies of Tax Returns for All Restaurant Entities and Maya FoodsRobett: A while ago, you agreed to produce tax returns for all of the restaurant entities once we decided on a mediator and a date subject to mutual nondisclosure agreements. (See Below). Joycelyn would like to avail herself of this information and she and I agree to keep the tax returns received confidential and we will not disclose this to any third parties other than possibly one other attorney assisting in the mediation and an accountant. Ideally, we'd get Mya Foods returns as well. Please confirm these returns will be sent to me on or before Friday, October 14, 2016 by 5:00 p.m. Thanks, Robert Robert C. Matz, Managing Partner |Matz Law Group| 2425 Webb Avenue, Suite 200, Alameda, CA 94s01|510-263-8775|Mobile: 510-599-6323|mailto:robert@matzlawgroup.legal NOTICE: This e-mail may contain information that is attorney-client privileged or attorney work product, If you are not the intended recipient, please notify the sender and then delete the e-mail and all attachments. Thank you for your anticipated cooperation, From: Robert Matz Sent: Tuesday, June 7, 2016 3:59 PM To: Ward, Robert Charles Cc: James Lee Subject: Re: Lee/Tan: Status Report, Moving Forward - Confidential Settlement Communication Yes. We need to figure out a venue, format, and mediator. Send me your proposals in this regard. Robert Sent from Robert Matz's iPhone (510) 599-6323; May Contain Information Protected By Attorney-Client Privilege, or Reference Trade Secret, Confidential, or Proprietary Information. Use/Review Intended for Recipient Only. On Jun 7, 2016, at 3:15 PM, Ward, Robert Charles wrote:Robert- I'm following up. Are we going to be proceeding with scheduling a mediation? Robert Robert Charles Ward Shartsis Friese LLP One Maritime Plaza San Francisco, CA 94111 www. sflaw.com From: Ward, Robert Charles Sent: Friday, May 27, 2016 11:05 AM Te ‘obert Matz" Cc: ‘James Lee! Subject: RE: Lee/Tan: Status Report, Moving Forward - Confidential Settlement Communication Robert- As I've tried to make clear in the past, Desmond is not going to provide all financial information that your client seeks. They were not married. Desmond will have a privilege and not have to produce his personal returns in litigation. While they still may co-own some businesses, Desmond has been operating separately from Joycelyn for a long time now, just as Joycelyn has been free to pursue her own business interests in that time. That said, Desmond will produce returns for the last three years for all of the restaurant entities, subject to appropriate and mutual nondisclosure agreements. Desmond will produce the returns when we have confirmed a mediator, a mediation date and both sides have posted their half of the mediation fees. Given that most good mediators book 30 to 60 days out, this will give you and your client adequate time to review what Desmond provides. Desmond does not want to use Ms. Ly. She may be an effective settlement judge in a department that handles primarily asbestos and mass tort cases. We have no basis to conclude that she is a good choice for a complicated business dissolution. Iam a strong believer that you get what you pay for when you hire neutrals. Desmond concurs. We want a JAMS judge or the equivalent. If you want to nominate 5 candidates from JAMS who are acceptable to you and your client, I'll review them with Desmond and we'll probably be able to agree on one of them. Let's do this quickly. I know there is a holiday weekend commencing, and you're in court today, but let’s get a mediation calendared and try to make that happen next week (the scheduling, not the mediation, obviously). I've tried to make clear that Desmond is more accommodating the sooner we settle. The longer this waits, the more inclined Desmond will be to see where the legal chips fall. RobertFrom: Robert Matz [mailto:robert@matzlawaroup. legal] Sent: Thursday, May 19, 2016 11:17 AM To: Ward, Robert Charles Subject: Lee/Tan: Status Report, Moving Forward Robert: Apologies for the radio silence; I have been focusing on the mandatory settlement conference in the e-coli case filed against Burma Superstar SF fot obvious teasons. ‘The case was settled at the mandatory conference yesterday, and I wrote the ad hoc settlement agreement (a formal one will be drafted and entered into later) that specifically released not only Burma SF and Joycelyn, but also your client, Desmond Tan, even though he had no lawyer present. I thought it prudent to do so given Plaintiffs were contemplating deposing him, and were seeking $3.2 million in compensation. I hope your client will see this as a demonstration of good faith. To get our client’s property division back on track, can you please confirm that Desmond is making his personal return and returns for all businesses he is involved with available to Joycelyn? ‘The accountant is once again saying she does not have authority to do this. Also, can you confirm that Joycelyn will be able to access all tax returns (¢., not limited to the last couple years). Once we (a) get access to the returns, and (b) complete this review, we should be able to get back to you with respect to your offer. By the way, yesterday’s mandatory settlement conference was before Pang Ly, a former judge who is now in charge of a settlement division within SF Superior Court. She is a vety good mediator and may be a good fit for the patties (she is local, she is familiar with Burma SP, e¢z); 1 was wondering if your client would consider participating in a settlement conference before Pang Ly. She said that although out judge would have to refer the case to her, she could indicate to the judge that she has familiarity with Burma SF due to the litigation and for that reason might be a good fit. Let me know, RobertRobert C. Matz, Managing Partner |Matz Law Group| 2425 Webb Avenue, Suite 200, Alameda, CA 94501|510-263-8775| Mobile: s10-s99- 6323|mailto:robert@matzlawgroup.legal NOTICE: This e-mail may contain information that is attorney-client privileged or attorney work product. If you are not the intended recipient, please notify the sender and then delete the e-mail and all attachments. Thank you for your anticipated cooperation.EXHIBIT 3SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR, SAN FRANCISCO, CA 94111-3598 Ce IW DAH A WN Bw NNN YR RN ND Be Be ee ee ee ee eo ND AW BF BW YN KF SCS De YD DH FF BW NY KY SCS SHARTSIS FRIESE LLP ROBERT CHARLES WARD (Bar #160824) One Maritime Plaza, Eighteenth Floor San Francisco, CA 94111-3598 Telephone; (415) 421-6500 Facsimile: (415) 421-2922 Email: rward@sflaw.com Attorneys for Defendant DESMOND TAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCELYN LEE, Case No. CGC 15-547404 Plaintiff, CONFIDENTIAL MEDIATION STATEMENT OF RESPONDENT v. DESMOND TAN DESMOND TAN, and DOES 1-20, inclusive, Date: October 21, 2016 Time: 10:00 a.m. Defendants. Location: JAMS Two Embarcadero Center Suite 1500 San Francisco, CA 94111 Neutral: © Hon, Rebecca Westerfield (Ret.) I INTRODUCTION This mediation is an attempt to unwind the business interests of Desmond Tan and Joycelyn Lee. The assets involved are a number of profitable restaurants, a trademark, and some real estate, There are no written contracts between Tan and Lee that would help the mediator assess the legal nature of their relationship and who now is entitled to what. Tan is an aggressive entrepreneur who found the capital to buy the original Burma Superstar restaurant in San Francisco and, after building Burma Superstar into a profitable and critically acclaimed restaurant, engineered the founding of a number of new, also successful restaurants. Lee, who was in a committed relationship with Tan at the time that Tan acquired Burma Superstar SF, originally came to work part-time for Burma Superstar, for which she was paid. After losing her -1- Case No. CONFIDENTIAL MEDIATION STATEMENT OF CGC 15-547404 RESPONDENT DESMOND TANEIGHTEENTH FLOOR, SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP ONE MARITIME PLAZA a A wA PF YW ND gross revenues of the East Bay restaurants, and that income stream is reasonably reduced to a present-valued dollar amount. This would not amount to a one-half ownership interested in the East Bay restaurants but rather would be a cash amount owed by those businesses to the owner of the trademark (East-West Holdings). If Tan and Lee are half owners of that business, Lee would only be entitled, in a partnership dissolution analysis as noted above, to one-half of that liquidated amount. If she wants:to emerge from this with full ownership of the Burma Superstar SF businesses, an intellectual property approach would not change her owing Tan to buy him out. Vv. SETTLEMENT ALTERNATIVES Tan is offering to confirm the status quo. Lee gets the townhouse on California and the three Burma Superstar SF restaurants (including B Star and Eats), This gives her over $1 million in annual income. She will have to work hard to keep those restaurants operating at the high level that they are, because that is the life of a restaurateur, But Lee claims to have worked hard all along, to have made valuable contributions to the restaurants, so this demands nothing more of her than what she claims to have been doing. Tan would keep the two East Bay Burma Superstar businesses and Burma Love, Mya Myanmar (the nascent packaged food company), and the real estate that is in his name in the East Bay. As of today, this is a very close to even split in terms of the annual net income of the various businesses, and perhaps generous to Lee with regard to real estate. The Burma Superstar trademark would be shared through Lee withdrawing her opposition to the renewal of the mark by Tan, and Tan granting Lee an irrevocable license to use the mark with both side agreeing to protect the mark, including reasonable limits on use of the mark, Lee’s disagreement with such a settlement appears to be rooted in some believe that she is entitled to a share of Tan’s post-separation and future endeavors, As discussed above, claiming an interest in the new business opportunities that Tan is pursuing is not supported by the facts or the law. Tan is giving Lee what is right now essentially half of a group of businesses that Tan created and built. If this were litigated, it would be the same result if Lee wins -- Tan ends up with half of what there was as of the separation, which Lee acknowledges was the end of their “partnership.” If Lee loses, she ends up with no ownership of anything, or half-ownership of what Tan is offering to her. Lee claims are premised on sweat equity, yet she wants a piece of -14- Case No. CONFIDENTIAL MEDIATION STATEMENT OF CGC 15-547404 RESPONDENT DESMOND TANeC em IN DW PF BW N Se oe Be ew em BoB NF GS EIGHTEENTH FLOOR m a ONE MARITIME PLAZA SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP NN NY YN NN NY Se Ee Se IYI Aa FO nv fF SO wA DTD nN oO businesses that she’s never sweat for. Dated: October (4, 2016 . SHARTSIS FRIESE.LLP By: 7 ROBERT CHARLES WARD Attorneys for Defendant DESMOND TAN 7831563.v2 -15- Case No. CONFIDENTIAL MEDIATION STATEMENT OF CGC 15-547404 RESPONDENT DESMOND TANEXHIBIT 4Settimat Teor / Me 5 iS A a5 gis oe Qebarets able a Fyalys gets th 3 SEP resture AS: gS Desrend as The otha. 2 0Stturadts AO. Wurna Supacoh, W nde Ss Des mend at a “em g00 oe oo floo, 000 Bt, oe madly Bo IS 2@ Aewest= WIT TO Page eee iad te PEE 12 riagmcoue 6, Soya ly 7 ats 4279 CaliGvrad a (PECL) 4. 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