Preview
SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111-3598
SHARTSIS FRIESE LLP
ROBERT CHARLES WARD (Bar #160824)
SANJEET GANJAM (Bar #285615)
One Maritime Plaza, Eighteenth Floor
San Francisco, CA 94111-3598
Telephone: - (415) 421-6500
Facsimile: (415) 421-2922
Email: rward@sflaw.com
Email: sganjam@sflaw.com
Attorney for Defendant DESMOND TAN
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
08/31/2017
Clerk of the Court
BY: VANESSA WU
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCELYN LEE,
Plaintiff,
Vv.
DESMOND TAN, and DOES 1-20, inclusive,
Defendants.
Case No, CGC 15-547404
REPLY MEMORANDUM IN SUPPORT
OF MOTION TO ENFORCE
SETTLEMENT AGREEMENT [CODE
CIV. PROC. § 664.6]
Reservation No. 08110908-01
Date: September 8, 2017
Time: 9:30 a.m.
Dept.: 302
Judge: Hon. Harold E. Kahn ~
Complaint Filed: April 19, 2016
Case No.
C16-00747
REPILY MEMORANDUM ISO MOTION TO ENFORCE
SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]&
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1 INTRODUCTION
The opposition papers filed on behalf of Joycelyn Lee (“Lee”) only confirm that judicial
intervention is necessary to put this case to rest. Tan’s motion seeks to do so in the simplest
available way: enter judgment exactly as the handwritten settlement agreement states, with the
Court clarifying the one issue that causes the impasse -- the assignability of the trademark license
granted by Tan to Lee. The Court need only resolve who is correct regarding whether the license
is assignable, and otherwise enter judgment in strict conformity with the handwritten settlement
agreement.
Il. LEE HAS NO fC ROUNDS TO SEEK THE RELIEF IN THE FRO OSED ORDER
Bi Ss D CANNOT
RFORMI ENDER THE SETTLEMENT AGREEMENT
SE
First, procedurally, Lee has no motion pending. Therefore, the Court’s choices are (a)
grant Tan’s motion, (b) deny it, or (c) grant the motion with modifications that the Court
determines are appropriate. The proposed: order submitted on behalf of Lee should not be
considered because it secks affirmative relief for breach of the Settlement Agreement rather than
entry of judgment in conformity with the Settlement Agreement.
Substantively, the Court cannot grant Lee the relief she seeks in her Opposition because
Lee cannot prove that she has performed, satisfied, or been excused from all conditions,
covenants, and obligations required under the Settlement Agreement. Lee asks for more than
entry of judgment in conformity with the Settlement Agreement. Lee asks the Court to find Tan
in breach of the Settlement Agreement, and thereon award damages based on the acceleration
provision. A party seeking damages for breach of contract must prove that she has performed.
CACI 303; Richman vy. Hartley, 224 Cal. App. 4th 1183, 1186 (2014).
Lee has failed to satisfy a material obligation under the Settlement Agreement -- she
failed to “execute a formal settlement agreement that will include mutual releases” and “an
attorneys’ fees clause.” Declaration of Desmond Tan In Support Of Motion To Enforce
Settlement Agreement (“Tan Decl.”) Ex. 1, § 8. Lee refused to perform this obligation because
the parties disagree over the terms of the license provided for in Paragraph 4. The formal
documentation — especially the release — is an obvious condition precedent to payment, Parties
-1-
Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE
C16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR:
SAN FRANCISCO, CA 94111-3598
do not make settlement payments with a release.
Lee’s partial performance of some obligations (see Opposition at 8) does not entitle her to
cherry-pick provisions to enforce. Lee filed a Notice of Settlement because she was facing a
June 19 trial date. She withdrew her opposition in the pending trademark proceeding because
she was facing, deadlines in that action as well. Lee took these actions to avoid running up her
legal bills further. These actions were not “all or substantially all” of what Lee was obligated to
do under the Settlement Agreement. CACI 303. There was no dismissal with prejudice nor
execution of a release.
Without any citation to authority, Lee argues that Tan’s “payment obligation was
completely independent of finalizing the formal agreement.” Opposition at 7:24-27. Where is
there such a provision in the Settlement Agreement? Obligations to perform do not become
separately enforceable by fiat. The prima facie elements of breach of contract confirm that all
material obligations on both sides must be performed. See, e.g., Richman, 224 Cal. App. 4th at
1186. If Lee wanted to get paid even if she otherwise failed to comply with all terms in the
Settlement Agreement, she should have bargained for and obtained language to that effect in the
document. In the absence of such language making the payment obligations “completely
independent,” the Court can use common sense as well as litigation custom and practice to
interpret the Settlement Agreement. Consistent with such custom and practice, the obviously
correct interpretation is: no release, no payment.
The Court could conclude that Tan is unreasonably refusing to move forward with the
final documentation and Lee can be excused from the obligation to execute a release. But such is
not the case. Tan submitted nearly the entire chain of communications in his moving papers to
show that he is not at fault. If the Court has any doubt as to whether Tan acted in good faith in
attempting to finalize the settlement documents, the Court should review the entire thread — as
unpleasant as it is. Tan’s counsel sent out draft documents with a month and a half to complete
them. Declaration of S. James Lee In Support Of Motion To Enforce Settlement Agreement
(“Lee Decl.”) Exs. 1, 4, 6. Counsel for Lee did not respond until the week that the first payment
would otherwise have been due. Jd. Ex. 5. The conduct of Lee’s attorney in these negotiations
to
Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE
C16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111-3598
was troubling. On a number of occasions, counsel for Lee actually refused to continue
negotiations, actually refused to serve his client, unless he (Robert Matz) got paid by Tan. Lee
Decl., Exs. 6-1 1.) With Lee’s attorney waiting until the last minute and making the negotiations
difficult and strange, Tan had no reasonable comfort that the parties would reach agreement on
final terms. As it turned out, the parties did reach an impasse on a material issue.
TW. THE TRADEMARK LICENSE PROVIDED FOR IN THE SETTLEMENT
AGREEMENT IS NOT ASSIGNABLE
The Settlement Agreement is silent on whether the irrevocable license granted by Tan to
Lee for the “3 SF restaurants” is assignable. As discussed in the moving papers, the “universal
rule is that trademark licenses are not assignable in the absence of a clause expressly authorizing
assignment.” Miller v. Glenn Miller Productions, Inc. 454 F.3d 975, 988 (9th Cir. 2006)
(emphasis added); see also Opening Memorandum at 10. Lee’s best hope is to argue that the
Settlement Agreement is ambiguous rather than silent, because if it is silent, it is not assignable.
Yet Lee’s opposition argues (wrongly) that parol evidence is not admissible. Lee also makes the
bizarre argument that the black letter law regarding the assignability of trademark licenses relates
to trademark licenses but not settlement agreements with trademark licenses in them. Opposition
at section III.C. That argument makes no sense.
For the dispute over whether the trademark license granted in the Settlement Agreement
is assignable, there are two potential steps for the Court. The first would be for the Court simply
to find that the trademark license is not assignable because the Settlement Agreement is silent as
to assignability. The “universal rule” therefore would apply. The Court could go to a second
step, deciding that the Settlement Agreement is ambiguous as to assignability, and consider parol
evidence. The result would be the same.
Lee’s opposition incorrectly argues that parol evidence is inadmissible to interpret the
" Lee’s counsel, Robert Matz, wrote statements such as, “As I explained, as soon as I receive
payment [from Tan for. Matz’s attorneys’ fées], I’ll clear my calendar and work on the
agreements.” Lee Decl., Ex. 21, page 4, June 19, 2017, 10:57 AM email. “If your client pays
my bill, I promise I'll spend all day tomorrow going over the documents with you.” Jd., page 3,
12:20 email.
-3-
Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE
16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111-3598
Settlement Agreement. Opposition at 3:22-4:6. Lee cites to Riverisland Cold Storage, Inc. v.
Fresno-Madera Production Credit Association, 55 Cal. 4th 1169 (2013), for the proposition that
“parol evidence is only admissible to prove fraud in the inducement.” That is so obviously not
the law. Riverisland did not overturn Pacific Gas & Electric v. GW. Thomas Drayage. &
Rigging Co., 69 Cal, 2d 33 (1968), and all of its progeny, which set the standard for admissibility
of parol evidence as “whether the offered evidence is relevant to prove a meaning to which the
language of the instrument is reasonably susceptible.” Jd, at 37, “The court must explain the
contract ‘by reference to the circumstances under which it was made, and the matter to which it
relates.” DVD Copy Control Assn., Inc. v. Kaleidescape, Inc., 1716 Cal. App. 4th 697, 712
(2009) (quoting Civil Code section 1647).
The Declarations of Tan and Lee included admissible parol evidence of the negotiations
relating to the trademark license, providing complete explanations that Lee tried to get Tan to
agree to the license being assignable so that she could sell the restaurants, but Tan disagreed.
Tan Decl., § 6; Lee Decl., { 28. The only evidence submitted on these negotiations by Lee is
Paragraph 9 of the Matz Declaration, which does not even rebut the statements of Tan and James
Lee. The Matz Declaration does not address the explicit discussion in which Lee asked for but
Tan did not agree to an assignable license because that discussion confirms that the silence of the
Settlement Agreement regarding assignability was intentional. There is no provision regarding
assignability to get around the “universal rule” because Lee asked for such a provision but Tan
did not agree.”
Lee’s opposition also includes the argument the most recent draft of the formal license
agreement “confirms” that Tan agreed that the license was assignable. Opposition at 10-11. Lee
does not cite the Court to this “most recent draft,” so it is unclear to what the opposition is
referring. This is more argument without evidence. Tan consistently has refused to agree to any
2 Lee's opposition also gratuitously attacks Tan for domestic abuse without evidence.
Paragraphs 10 and 11 of the Matz declaration are patently not admissible evidence of anything.
To make such odious statements without any actual evidence is beyond inappropriate. The
family law proceedings by which Lee and Tan resolved out custody and support arrangements
for their daughter are public record and include absolutely no findings supporting Matz’s
unsupported accusations.
-4-
Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE
C16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111-3598
terms that would lose control over a trademark he has spent much of his professional life
building. Lee is free to sell restaurants. Two are not even branded as Burma Superstar so the
trademark is irrelevant to any sale of those two restaurants. Tan Decl., { 6. If Lee wants to sell
the San Francisco Burma Superstar, she can do so without the mark. It is in a great location and
can be rebranded. If she wants to sell it as a Burma Superstar, she failed to bargain for the
trademark but remains free to ask for consent from the licensor.
The order that Lee seeks would not resolve this dispute over the assignability of the
trademark, Ordering the partics to “negotiate.in good faith” over the assignability of the mark is
pointless. Tan has already tried that, exhaustively and exhaustingly, as the James Lee
Declaration shows. Lee asks the Court to adopt that same position she has dug into: Tan must
perform all of his obligations under the Settlement Agreement while Lee is allowed to continue
to be disagreeable over a material term. That is not how settlements should work.
IV. CONCLUSION
For the reasons set forth above and in the original moving papers, Tan respectfully
requests that the Court put this dispute to rest and enforce the settlement agreement as requested
by Tan.
Dated: August 30, 2017 SHARTSIS FRIESE LLP
ROBERT CHARLES WARD
Attorney for Defendant DESMOND TAN
8042624.v1
-5-
Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE
C16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111-3598
Com ND
PROOF OF SERVICE
I, Janis L. Ing, declare:
I am a citizen of the United States and employed in the City and County of San
Francisco, California by Shartsis Friese LLP at One Maritime Plaza, Eighteenth Floor, San
Francisco, California 94111. I am over the age of eighteen years and am not a party to the
within-entitled action.
On August 31, 2017 at Shartsis Friese LLP located at the above-referenced address, and,
pursuant to California Rules of Court, Federal Rules of Civil Procedure, Civil Code of
Procedure, and local rules, I served on the interested parties in said cause a copy of the within
document(s):
REPLY MEMORANDUM IN SUPPORT OF MOTION TO ENFORCE
SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]
M by consigning the document(s) listed above to an express delivery service for
guaranteed delivery on the next business day to the person(s) at the address(es) set
forth below:
O by personal delivery by messenger service of the document(s) above to the
person(s) at the address(es) set forth below:
oO by facsimile transmission on this date before 5:00 p.m. (PST) of the document(s)
listed above from sending facsimile machine main telephone number (415) 421-
2922, and which transmission was reported as complete and without error (copy
of which is attached), to facsimile number(s) set forth below: (C1 by agreement /
U not by agreement)
M by electronically delivering the document(s) listed above on this date from
electronic address sflaw.com, and after which transmission I did not receive
within a reasonable time any electronic message or other indication that the
transmission was unsuccessful, to electronic mail address(es) set forth below: (1
by agreement / O not by agreement)
M by E-Service in conjunction with E-Filing the document(s) listed above through
an e-filing vendor approved by this Court. The name of the vendor and the
transaction receipt I.D. are given in the vendor’s emailed Notification of Service.
-6-
Case No. PROOF OF SERVICE,
CGC 15-547404SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111-3598
‘SERVICE LIST
Robert C, Matz, Esq.
Matz Law Group
2425 Webb Avenue, Suite 200
Alameda, CA 94501
Telephone: (510) 263-8775
Email: robert@matzlawgroup.legal
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on August 31, 2017, at San Francisco, California.
Ania On
U Janis L. Ing O
8044168.v1
-7-
Case No. PROOF OF SERVICE
CGC 15-547404
Preview
SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP ROBERT CHARLES WARD (Bar #160824) SANJEET GANJAM (Bar #285615) One Maritime Plaza, Eighteenth Floor San Francisco, CA 94111-3598 Telephone: - (415) 421-6500 Facsimile: (415) 421-2922 Email: rward@sflaw.com Email: sganjam@sflaw.com Attorney for Defendant DESMOND TAN ELECTRONICALLY FILED Superior Court of California, County of San Francisco 08/31/2017 Clerk of the Court BY: VANESSA WU Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCELYN LEE, Plaintiff, Vv. DESMOND TAN, and DOES 1-20, inclusive, Defendants. Case No, CGC 15-547404 REPLY MEMORANDUM IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6] Reservation No. 08110908-01 Date: September 8, 2017 Time: 9:30 a.m. Dept.: 302 Judge: Hon. Harold E. Kahn ~ Complaint Filed: April 19, 2016 Case No. C16-00747 REPILY MEMORANDUM ISO MOTION TO ENFORCE SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]& a 3 S85 wy + gees mano BEES 2222 moO 082 S658 “3 1 INTRODUCTION The opposition papers filed on behalf of Joycelyn Lee (“Lee”) only confirm that judicial intervention is necessary to put this case to rest. Tan’s motion seeks to do so in the simplest available way: enter judgment exactly as the handwritten settlement agreement states, with the Court clarifying the one issue that causes the impasse -- the assignability of the trademark license granted by Tan to Lee. The Court need only resolve who is correct regarding whether the license is assignable, and otherwise enter judgment in strict conformity with the handwritten settlement agreement. Il. LEE HAS NO fC ROUNDS TO SEEK THE RELIEF IN THE FRO OSED ORDER Bi Ss D CANNOT RFORMI ENDER THE SETTLEMENT AGREEMENT SE First, procedurally, Lee has no motion pending. Therefore, the Court’s choices are (a) grant Tan’s motion, (b) deny it, or (c) grant the motion with modifications that the Court determines are appropriate. The proposed: order submitted on behalf of Lee should not be considered because it secks affirmative relief for breach of the Settlement Agreement rather than entry of judgment in conformity with the Settlement Agreement. Substantively, the Court cannot grant Lee the relief she seeks in her Opposition because Lee cannot prove that she has performed, satisfied, or been excused from all conditions, covenants, and obligations required under the Settlement Agreement. Lee asks for more than entry of judgment in conformity with the Settlement Agreement. Lee asks the Court to find Tan in breach of the Settlement Agreement, and thereon award damages based on the acceleration provision. A party seeking damages for breach of contract must prove that she has performed. CACI 303; Richman vy. Hartley, 224 Cal. App. 4th 1183, 1186 (2014). Lee has failed to satisfy a material obligation under the Settlement Agreement -- she failed to “execute a formal settlement agreement that will include mutual releases” and “an attorneys’ fees clause.” Declaration of Desmond Tan In Support Of Motion To Enforce Settlement Agreement (“Tan Decl.”) Ex. 1, § 8. Lee refused to perform this obligation because the parties disagree over the terms of the license provided for in Paragraph 4. The formal documentation — especially the release — is an obvious condition precedent to payment, Parties -1- Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE C16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR: SAN FRANCISCO, CA 94111-3598 do not make settlement payments with a release. Lee’s partial performance of some obligations (see Opposition at 8) does not entitle her to cherry-pick provisions to enforce. Lee filed a Notice of Settlement because she was facing a June 19 trial date. She withdrew her opposition in the pending trademark proceeding because she was facing, deadlines in that action as well. Lee took these actions to avoid running up her legal bills further. These actions were not “all or substantially all” of what Lee was obligated to do under the Settlement Agreement. CACI 303. There was no dismissal with prejudice nor execution of a release. Without any citation to authority, Lee argues that Tan’s “payment obligation was completely independent of finalizing the formal agreement.” Opposition at 7:24-27. Where is there such a provision in the Settlement Agreement? Obligations to perform do not become separately enforceable by fiat. The prima facie elements of breach of contract confirm that all material obligations on both sides must be performed. See, e.g., Richman, 224 Cal. App. 4th at 1186. If Lee wanted to get paid even if she otherwise failed to comply with all terms in the Settlement Agreement, she should have bargained for and obtained language to that effect in the document. In the absence of such language making the payment obligations “completely independent,” the Court can use common sense as well as litigation custom and practice to interpret the Settlement Agreement. Consistent with such custom and practice, the obviously correct interpretation is: no release, no payment. The Court could conclude that Tan is unreasonably refusing to move forward with the final documentation and Lee can be excused from the obligation to execute a release. But such is not the case. Tan submitted nearly the entire chain of communications in his moving papers to show that he is not at fault. If the Court has any doubt as to whether Tan acted in good faith in attempting to finalize the settlement documents, the Court should review the entire thread — as unpleasant as it is. Tan’s counsel sent out draft documents with a month and a half to complete them. Declaration of S. James Lee In Support Of Motion To Enforce Settlement Agreement (“Lee Decl.”) Exs. 1, 4, 6. Counsel for Lee did not respond until the week that the first payment would otherwise have been due. Jd. Ex. 5. The conduct of Lee’s attorney in these negotiations to Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE C16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111-3598 was troubling. On a number of occasions, counsel for Lee actually refused to continue negotiations, actually refused to serve his client, unless he (Robert Matz) got paid by Tan. Lee Decl., Exs. 6-1 1.) With Lee’s attorney waiting until the last minute and making the negotiations difficult and strange, Tan had no reasonable comfort that the parties would reach agreement on final terms. As it turned out, the parties did reach an impasse on a material issue. TW. THE TRADEMARK LICENSE PROVIDED FOR IN THE SETTLEMENT AGREEMENT IS NOT ASSIGNABLE The Settlement Agreement is silent on whether the irrevocable license granted by Tan to Lee for the “3 SF restaurants” is assignable. As discussed in the moving papers, the “universal rule is that trademark licenses are not assignable in the absence of a clause expressly authorizing assignment.” Miller v. Glenn Miller Productions, Inc. 454 F.3d 975, 988 (9th Cir. 2006) (emphasis added); see also Opening Memorandum at 10. Lee’s best hope is to argue that the Settlement Agreement is ambiguous rather than silent, because if it is silent, it is not assignable. Yet Lee’s opposition argues (wrongly) that parol evidence is not admissible. Lee also makes the bizarre argument that the black letter law regarding the assignability of trademark licenses relates to trademark licenses but not settlement agreements with trademark licenses in them. Opposition at section III.C. That argument makes no sense. For the dispute over whether the trademark license granted in the Settlement Agreement is assignable, there are two potential steps for the Court. The first would be for the Court simply to find that the trademark license is not assignable because the Settlement Agreement is silent as to assignability. The “universal rule” therefore would apply. The Court could go to a second step, deciding that the Settlement Agreement is ambiguous as to assignability, and consider parol evidence. The result would be the same. Lee’s opposition incorrectly argues that parol evidence is inadmissible to interpret the " Lee’s counsel, Robert Matz, wrote statements such as, “As I explained, as soon as I receive payment [from Tan for. Matz’s attorneys’ fées], I’ll clear my calendar and work on the agreements.” Lee Decl., Ex. 21, page 4, June 19, 2017, 10:57 AM email. “If your client pays my bill, I promise I'll spend all day tomorrow going over the documents with you.” Jd., page 3, 12:20 email. -3- Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE 16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111-3598 Settlement Agreement. Opposition at 3:22-4:6. Lee cites to Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Association, 55 Cal. 4th 1169 (2013), for the proposition that “parol evidence is only admissible to prove fraud in the inducement.” That is so obviously not the law. Riverisland did not overturn Pacific Gas & Electric v. GW. Thomas Drayage. & Rigging Co., 69 Cal, 2d 33 (1968), and all of its progeny, which set the standard for admissibility of parol evidence as “whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.” Jd, at 37, “The court must explain the contract ‘by reference to the circumstances under which it was made, and the matter to which it relates.” DVD Copy Control Assn., Inc. v. Kaleidescape, Inc., 1716 Cal. App. 4th 697, 712 (2009) (quoting Civil Code section 1647). The Declarations of Tan and Lee included admissible parol evidence of the negotiations relating to the trademark license, providing complete explanations that Lee tried to get Tan to agree to the license being assignable so that she could sell the restaurants, but Tan disagreed. Tan Decl., § 6; Lee Decl., { 28. The only evidence submitted on these negotiations by Lee is Paragraph 9 of the Matz Declaration, which does not even rebut the statements of Tan and James Lee. The Matz Declaration does not address the explicit discussion in which Lee asked for but Tan did not agree to an assignable license because that discussion confirms that the silence of the Settlement Agreement regarding assignability was intentional. There is no provision regarding assignability to get around the “universal rule” because Lee asked for such a provision but Tan did not agree.” Lee’s opposition also includes the argument the most recent draft of the formal license agreement “confirms” that Tan agreed that the license was assignable. Opposition at 10-11. Lee does not cite the Court to this “most recent draft,” so it is unclear to what the opposition is referring. This is more argument without evidence. Tan consistently has refused to agree to any 2 Lee's opposition also gratuitously attacks Tan for domestic abuse without evidence. Paragraphs 10 and 11 of the Matz declaration are patently not admissible evidence of anything. To make such odious statements without any actual evidence is beyond inappropriate. The family law proceedings by which Lee and Tan resolved out custody and support arrangements for their daughter are public record and include absolutely no findings supporting Matz’s unsupported accusations. -4- Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE C16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111-3598 terms that would lose control over a trademark he has spent much of his professional life building. Lee is free to sell restaurants. Two are not even branded as Burma Superstar so the trademark is irrelevant to any sale of those two restaurants. Tan Decl., { 6. If Lee wants to sell the San Francisco Burma Superstar, she can do so without the mark. It is in a great location and can be rebranded. If she wants to sell it as a Burma Superstar, she failed to bargain for the trademark but remains free to ask for consent from the licensor. The order that Lee seeks would not resolve this dispute over the assignability of the trademark, Ordering the partics to “negotiate.in good faith” over the assignability of the mark is pointless. Tan has already tried that, exhaustively and exhaustingly, as the James Lee Declaration shows. Lee asks the Court to adopt that same position she has dug into: Tan must perform all of his obligations under the Settlement Agreement while Lee is allowed to continue to be disagreeable over a material term. That is not how settlements should work. IV. CONCLUSION For the reasons set forth above and in the original moving papers, Tan respectfully requests that the Court put this dispute to rest and enforce the settlement agreement as requested by Tan. Dated: August 30, 2017 SHARTSIS FRIESE LLP ROBERT CHARLES WARD Attorney for Defendant DESMOND TAN 8042624.v1 -5- Case No. REPLY MEMORANDUM ISO MOTION TO ENFORCE C16-00747 SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6]SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111-3598 Com ND PROOF OF SERVICE I, Janis L. Ing, declare: I am a citizen of the United States and employed in the City and County of San Francisco, California by Shartsis Friese LLP at One Maritime Plaza, Eighteenth Floor, San Francisco, California 94111. I am over the age of eighteen years and am not a party to the within-entitled action. On August 31, 2017 at Shartsis Friese LLP located at the above-referenced address, and, pursuant to California Rules of Court, Federal Rules of Civil Procedure, Civil Code of Procedure, and local rules, I served on the interested parties in said cause a copy of the within document(s): REPLY MEMORANDUM IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT [CODE CIV. PROC. § 664.6] M by consigning the document(s) listed above to an express delivery service for guaranteed delivery on the next business day to the person(s) at the address(es) set forth below: O by personal delivery by messenger service of the document(s) above to the person(s) at the address(es) set forth below: oO by facsimile transmission on this date before 5:00 p.m. (PST) of the document(s) listed above from sending facsimile machine main telephone number (415) 421- 2922, and which transmission was reported as complete and without error (copy of which is attached), to facsimile number(s) set forth below: (C1 by agreement / U not by agreement) M by electronically delivering the document(s) listed above on this date from electronic address sflaw.com, and after which transmission I did not receive within a reasonable time any electronic message or other indication that the transmission was unsuccessful, to electronic mail address(es) set forth below: (1 by agreement / O not by agreement) M by E-Service in conjunction with E-Filing the document(s) listed above through an e-filing vendor approved by this Court. The name of the vendor and the transaction receipt I.D. are given in the vendor’s emailed Notification of Service. -6- Case No. PROOF OF SERVICE, CGC 15-547404SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111-3598 ‘SERVICE LIST Robert C, Matz, Esq. Matz Law Group 2425 Webb Avenue, Suite 200 Alameda, CA 94501 Telephone: (510) 263-8775 Email: robert@matzlawgroup.legal I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 31, 2017, at San Francisco, California. Ania On U Janis L. Ing O 8044168.v1 -7- Case No. PROOF OF SERVICE CGC 15-547404