Preview
EIGHTEENTH FLOOR
SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
SAN FRANCISCO, CA 94111-3598
SHARTSIS FRIESE LLP
ROBERT CHARLES WARD (Bar #160824)
One Maritime Plaza, Eighteenth Floor
San Francisco, CA 94111-3598 ELECTRONICALLY
Telephone: (415) 421-6500 FILED
Facsimile: (415) 421-2922 Superior Court of California,
Email: rward@sflaw.com. County of San Francisco
10/12/2017
Attorneys for Defendant DESMOND TAN Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCELYN LEE, Case No. CGC 15-547404
Plaintiff, DESMOND TAN’S MEMORANDUM IN
SUPPORT OF PROPOSED ORDER
Vv. AND JUDGMENT
DESMOND TAN, and DOES 1-20, inclusive, Reservation No. 08110908-01
Defendants. 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. INTRODUCTION AND PROCEDURAL POSTURE
Defendant Desmond Tan submits this motion to request modification of the Court’s
Proposed Order on the Motion to Enforce Settlement pursuant to CCP Section 664.6.
Specifically, Tan agrees with the Court’s Order as is except to request that the Court add back in
the language removed at the hearing on October 6. Specifically, at page 2, line 18 of the Order,
the Court should add back in, “with the understanding that Burma Super Star, Inc., and any other
entity owned or controlled by Mr. Tan, are free to use that mark in any way other than on full-
service restaurants in the City of San Francisco.”
The above-quoted language should be added in order to resolve a dispute between the
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Case No. DESMOND TAN’S MEMORANDUM IN SUPPORT OF
CGC 15-547404 PROPOSED ORDER AND JUDGMENTSHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR,
SAN FRANCISCO, CA 941113598
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parties as to whether Tan can use the Burma SuperStar mark in San Francisco for business
purposes other than full-service restaurants. At the October 6 hearing, counsel for Plaintiff
Joycelyn Lee threatened to send cease-and-desist letters and pursue litigation against Tan in
connection with a packaged food business that Tan currently operates, selling Burma SuperStar-
branded packaged foods in grocery stores in the Bay Area including San Francisco. Therefore,
given the threat, Tan asks the Court to examine the evidence of the negotiations between the
parties to determine that the handwritten settlement agreement of March 24, 2017, limited Lee’s
license to the trademark only to use for a full-service Burma SuperStar restaurant and that Tan is
free to use that trademark in San Francisco for any other type of business.
Il. THE NEGOTIATIONS DEMONSTRATE THAT TAN’S PROPOSED ORDER
MOSTLY CONFORMS TO THE AGREEMENT OF THE PARTIES
A. Tan’s Post-Separation Development Of A Packaged Food Business Was A
Subject Of The Settlement Negotiations
At the hearing, the Court asked the right question: Was the packaged food business
something that existed at the time of the settlement agreement? In other words, was that business
on the table as part of the settlement negotiations? The answer is yes.
Tan and Lee separated in August 2013. At that time, Tan and Lee, through various
entities, owned and operated five restaurants: three in San Francisco (the original Burma
SuperStar, B Star and Eats) and two in the East Bay (BurmaSuperstar Alameda and Oakland).
Tan Decl., (2. After separation, with no involvement or assistance from Lee, Tan launched two
new businesses. First, he opened Burma Love in San Francisco, Second, he founded a company
(Mya Myanmar Foods) to make and market packaged foods. Id. at § 3. The packaged food
business has reached the point at which products are now being sold in Bay Area grocery stores,
such as Whole Foods. Some of the products are branded as Burma SuperStar and some of the
grocery stores selling the products are in San Francisco. Id. at 4 4.
Tan’s development of new businesses was the subject of settlement negotiations. See, e.g.
Ward Decl., Ex. 1 (March 28, 2016 Matz email, paragraphs 2 and 3). Lee’s settlement proposals
included getting some compensation for giving up her claim to an interest in Mya Myanmar
Foods. That the packaged food business was under discussion is also shown by Lee’s request for
'
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Case No. DESMOND TAN’S MEMORANDUM IN SUPPORT OF
CGC 15-547404 PROPOSED ORDER AND JUDGMENTEIGHTEENTH FLOOR
SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
SAN FRANCISCO, CA 941113598
the tax returns for Mya Myanmar Foods, prior to the parties going to mediation. Ward Deecl., Ex.
2.
Tan’s approach to settlement reflected his view that he and Lee had been married in all
but name. He agreed all along that Lee should get half of the business as of their date of
separation, but also therefore disagreed that Lee had any right to new businesses created by Tan
after separation. Tan Decl., 5. The three San Francisco restaurants generated roughly the same
amount of net income as the two East Bay restaurants. Thus, Tan acquiesced when Lee decided
to,take control over the three San Francisco restaurants and leave the East Bay restaurants to him.
Id, at 6. However, when Lee sought an interest in Mya Foods or in other future franchising or
other activities that Tan might pursue, Tan refused. Lee explicitly asked for an interest in the
future business activities of Tan, in written negotiations cited above, during the mediation, and at
the March 24, 2017 meeting which resulted in the handwritten settlement agreement. Id. at { 7.
B. Lee Gave Up Any Claim To Tan’s Non-Restaurant Business Activities In The
Settlement Agreement
Given that non-restaurant businesses developed by Tan were expressly a -topic of
settlement negotiations, the correct interpretation of the handwritten settlement agreement would
include Lee giving up any claimed interest in those businesses. The agreement allocated to Lee
the three San Francisco restaurants. (“Joycelyn gets the 3 SF restaurants.”) Ward Decl., Ex. 4.
Tan was allocated “the other restaurants and Burma Superstar trademark.” Jd. Because Tan (or
rather a corporation owned and controlled by Tan) got the trademark, he is free to use that mark
however he wants, subject only to the limitation in Paragraph 4.
Joycelyn gets an irrevocable license to use the Burma Superstar mark for the 3 SF
restaurants which is exclusive to her in SF. Desmond cannot operate BSS in SF.
The license to Lee was solely for purposes of the existing Burma SuperStar in San Francisco.
Tan’s agreement not to “operate BSS in SF” means that Tan would not open competing Burma
SuperStar restaurants in San Francisco. This is exactly what was discussed and agreed at the
March 24 meeting. Tan Decl., { 8. “Operate” Burma SuperStar clearly means restaurants, not
selling packaged food in grocery stores. The word “operate” makes no sense in that context. If
Paragraph 4 of the agreement were meant to apply to something other than restaurants, if
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Case No. DESMOND TAN’S MEMORANDUM IN SUPPORT OF
CGC 15-547404 PROPOSED ORDER AND JUDGMENTEIGHTEENTH FLOOR
SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
SAN FRANCISCO, CA 94111-3598
ar nw
Paragraph 4 was meant to preclude Tan from selling Burma SuperStar-branded packaged goods
in grocery stores, the language would have been different.
Other provisions in the agreement confirm that Tan was acquiring both the
BurmaSuperstar trademark and the right to use that mark for businesses other than restaurants.
Tan agreed to a substantial payment to. Lee, and Lee relinquishing her claims to the trademark and
Tan’s other business endeavors was part of the consideration for that payment. Ward Decl., Ex.
4. The agreement specifically provides that Lee relinquished “any claim to any other
compensation from” Tan. Jd. With regard to Tan’s use of the trademark in connection with his
packaged food business, the settlement agreement is most correctly interpreted to include Lee
relinquishing any claim to an interest in that business. Therefore, the additional language sought
by Tan clarifies and avoids further dispute on that point.
Tl. CONCLUSION
For the reasons set forth above, Tan respectfully requests that the Court adopt its proposed
order exactly as is, except to add back in the clarifying clause removed at the October 6 hearing.
Dated: October 11, 2017 » SHARTSIS FRIESE LLP
By: ROBERT CHARLES WARD
Attorneys for Defendant DESMOND TAN
8062766
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Case No. DESMOND TAN’S MEMORANDUM IN SUPPORT OF
CGC 15-547404 PROPOSED ORDER AND JUDGMENT
Preview
EIGHTEENTH FLOOR SHARTSIS FRIESE LLP ONE MARITIME PLAZA SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP ROBERT CHARLES WARD (Bar #160824) One Maritime Plaza, Eighteenth Floor San Francisco, CA 94111-3598 ELECTRONICALLY Telephone: (415) 421-6500 FILED Facsimile: (415) 421-2922 Superior Court of California, Email: rward@sflaw.com. County of San Francisco 10/12/2017 Attorneys for Defendant DESMOND TAN Clerk of the Court BY: WILLIAM TRUPEK Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCELYN LEE, Case No. CGC 15-547404 Plaintiff, DESMOND TAN’S MEMORANDUM IN SUPPORT OF PROPOSED ORDER Vv. AND JUDGMENT DESMOND TAN, and DOES 1-20, inclusive, Reservation No. 08110908-01 Defendants. 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. INTRODUCTION AND PROCEDURAL POSTURE Defendant Desmond Tan submits this motion to request modification of the Court’s Proposed Order on the Motion to Enforce Settlement pursuant to CCP Section 664.6. Specifically, Tan agrees with the Court’s Order as is except to request that the Court add back in the language removed at the hearing on October 6. Specifically, at page 2, line 18 of the Order, the Court should add back in, “with the understanding that Burma Super Star, Inc., and any other entity owned or controlled by Mr. Tan, are free to use that mark in any way other than on full- service restaurants in the City of San Francisco.” The above-quoted language should be added in order to resolve a dispute between the -1- Case No. DESMOND TAN’S MEMORANDUM IN SUPPORT OF CGC 15-547404 PROPOSED ORDER AND JUDGMENTSHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR, SAN FRANCISCO, CA 941113598 Cm YN DA HW BF WN ee oe NR fF oO 13 parties as to whether Tan can use the Burma SuperStar mark in San Francisco for business purposes other than full-service restaurants. At the October 6 hearing, counsel for Plaintiff Joycelyn Lee threatened to send cease-and-desist letters and pursue litigation against Tan in connection with a packaged food business that Tan currently operates, selling Burma SuperStar- branded packaged foods in grocery stores in the Bay Area including San Francisco. Therefore, given the threat, Tan asks the Court to examine the evidence of the negotiations between the parties to determine that the handwritten settlement agreement of March 24, 2017, limited Lee’s license to the trademark only to use for a full-service Burma SuperStar restaurant and that Tan is free to use that trademark in San Francisco for any other type of business. Il. THE NEGOTIATIONS DEMONSTRATE THAT TAN’S PROPOSED ORDER MOSTLY CONFORMS TO THE AGREEMENT OF THE PARTIES A. Tan’s Post-Separation Development Of A Packaged Food Business Was A Subject Of The Settlement Negotiations At the hearing, the Court asked the right question: Was the packaged food business something that existed at the time of the settlement agreement? In other words, was that business on the table as part of the settlement negotiations? The answer is yes. Tan and Lee separated in August 2013. At that time, Tan and Lee, through various entities, owned and operated five restaurants: three in San Francisco (the original Burma SuperStar, B Star and Eats) and two in the East Bay (BurmaSuperstar Alameda and Oakland). Tan Decl., (2. After separation, with no involvement or assistance from Lee, Tan launched two new businesses. First, he opened Burma Love in San Francisco, Second, he founded a company (Mya Myanmar Foods) to make and market packaged foods. Id. at § 3. The packaged food business has reached the point at which products are now being sold in Bay Area grocery stores, such as Whole Foods. Some of the products are branded as Burma SuperStar and some of the grocery stores selling the products are in San Francisco. Id. at 4 4. Tan’s development of new businesses was the subject of settlement negotiations. See, e.g. Ward Decl., Ex. 1 (March 28, 2016 Matz email, paragraphs 2 and 3). Lee’s settlement proposals included getting some compensation for giving up her claim to an interest in Mya Myanmar Foods. That the packaged food business was under discussion is also shown by Lee’s request for ' 3+ Case No. DESMOND TAN’S MEMORANDUM IN SUPPORT OF CGC 15-547404 PROPOSED ORDER AND JUDGMENTEIGHTEENTH FLOOR SHARTSIS FRIESE LLP ONE MARITIME PLAZA SAN FRANCISCO, CA 941113598 the tax returns for Mya Myanmar Foods, prior to the parties going to mediation. Ward Deecl., Ex. 2. Tan’s approach to settlement reflected his view that he and Lee had been married in all but name. He agreed all along that Lee should get half of the business as of their date of separation, but also therefore disagreed that Lee had any right to new businesses created by Tan after separation. Tan Decl., 5. The three San Francisco restaurants generated roughly the same amount of net income as the two East Bay restaurants. Thus, Tan acquiesced when Lee decided to,take control over the three San Francisco restaurants and leave the East Bay restaurants to him. Id, at 6. However, when Lee sought an interest in Mya Foods or in other future franchising or other activities that Tan might pursue, Tan refused. Lee explicitly asked for an interest in the future business activities of Tan, in written negotiations cited above, during the mediation, and at the March 24, 2017 meeting which resulted in the handwritten settlement agreement. Id. at { 7. B. Lee Gave Up Any Claim To Tan’s Non-Restaurant Business Activities In The Settlement Agreement Given that non-restaurant businesses developed by Tan were expressly a -topic of settlement negotiations, the correct interpretation of the handwritten settlement agreement would include Lee giving up any claimed interest in those businesses. The agreement allocated to Lee the three San Francisco restaurants. (“Joycelyn gets the 3 SF restaurants.”) Ward Decl., Ex. 4. Tan was allocated “the other restaurants and Burma Superstar trademark.” Jd. Because Tan (or rather a corporation owned and controlled by Tan) got the trademark, he is free to use that mark however he wants, subject only to the limitation in Paragraph 4. Joycelyn gets an irrevocable license to use the Burma Superstar mark for the 3 SF restaurants which is exclusive to her in SF. Desmond cannot operate BSS in SF. The license to Lee was solely for purposes of the existing Burma SuperStar in San Francisco. Tan’s agreement not to “operate BSS in SF” means that Tan would not open competing Burma SuperStar restaurants in San Francisco. This is exactly what was discussed and agreed at the March 24 meeting. Tan Decl., { 8. “Operate” Burma SuperStar clearly means restaurants, not selling packaged food in grocery stores. The word “operate” makes no sense in that context. If Paragraph 4 of the agreement were meant to apply to something other than restaurants, if -3- Case No. DESMOND TAN’S MEMORANDUM IN SUPPORT OF CGC 15-547404 PROPOSED ORDER AND JUDGMENTEIGHTEENTH FLOOR SHARTSIS FRIESE LLP ONE MARITIME PLAZA SAN FRANCISCO, CA 94111-3598 ar nw Paragraph 4 was meant to preclude Tan from selling Burma SuperStar-branded packaged goods in grocery stores, the language would have been different. Other provisions in the agreement confirm that Tan was acquiring both the BurmaSuperstar trademark and the right to use that mark for businesses other than restaurants. Tan agreed to a substantial payment to. Lee, and Lee relinquishing her claims to the trademark and Tan’s other business endeavors was part of the consideration for that payment. Ward Decl., Ex. 4. The agreement specifically provides that Lee relinquished “any claim to any other compensation from” Tan. Jd. With regard to Tan’s use of the trademark in connection with his packaged food business, the settlement agreement is most correctly interpreted to include Lee relinquishing any claim to an interest in that business. Therefore, the additional language sought by Tan clarifies and avoids further dispute on that point. Tl. CONCLUSION For the reasons set forth above, Tan respectfully requests that the Court adopt its proposed order exactly as is, except to add back in the clarifying clause removed at the October 6 hearing. Dated: October 11, 2017 » SHARTSIS FRIESE LLP By: ROBERT CHARLES WARD Attorneys for Defendant DESMOND TAN 8062766 -4- Case No. DESMOND TAN’S MEMORANDUM IN SUPPORT OF CGC 15-547404 PROPOSED ORDER AND JUDGMENT