다음은, 5월 11일 판결을 앞두고, 피고인이 원고인과 판사에게 {재판할 필요 없다. 기각시켜 달라...}는 등등의 주장에 대해 {아니다, 기각시킬 수 없다. 처벌을 받아야 한다. 한인회는 재선거 하는 동안, 일시 한인회 문을 닫아야 한다...} 등 주장을 폈다. 2002년 6월 부터 2003년 1월 까지 3회에 걸쳐 미주통일신문 발행인 원고가 3회 승소했으나, 피고인이 지연전술을 폈다. 그러나, 원고인도 끝까지 투쟁, 오는 5월 무서운 판결을 예상하고 있다. 다음은, 며칠동안 원고인이 작성한 한글을 공인 영문 번역사가 영작, 월요일에 판사에게 전달한다. 이 같은 솟장 내용을 공개하는 것은 앞으로 100년 후, 한인 커뮤니티의 역사를 증명하기 위해서. 원고인이 지금 피를 흘리고 있다.
SUPERIOR COUNRT OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
SIMON BAE; and MEMBERS OF THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.,Plaintiffs,
vs.
KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.; KI HWAN HA, and DOES 1 to 50, inclusive, Defendants
Case No.: BC275912(Assigned to Hon. Kenneth R. Freeman)PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ TRIAL BRIEF DATE: May 11, 2005TIME: 8:30 AMDEPT.: 64
Plaintiff, SIMON BAE, AND MEMBERS OF THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. SIMILARLY SITUATED, oppose to the Defendants’ Moving Paper in the Trial by Declaration as follows.
I. Explanation of two Plaintiffs’ briefs filed and some corrections
On March 14, 2005, Plaintiffs came to file two kinds of briefs, one was filed in the name of Simon Bae, Plaintiff in pro per, and the other one was filed in the name of Andrew Kim, Attorney for Plaintiffs. However, both versions are equally effective. Especially Part III of in pro per version still contains materials that demonstrate how the amendments by Defendants in 2000 affect materially and adversely the right of other members.
But, some correction about citing statutory laws is needed. Thus, it is to repeat those parts again here with the corrected law codes.
II. Corrected introduction of the brief
During the two terms of Defendant, Kee Hwan Ha (hereinafter, “Ha” or “Defendant”), as the President of THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. (hereinafter, “KAFLA”), many parts of the bylaw of KAFLA (hereinafter, “Bylaw”) including but not limited to the extension of the term of President of KAFLA have been amended. Plaintiffs SIMON BAE; and MEMBERS OF THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. (hereinafter “Plaintiffs”) hereby are informed and believe and thereon allege that those amendments of Bylaw materially and adversely affected the rights, privileges, preferences, restrictions or conditions of the members of KAFLA (hereinafter, “Members”) as to electing or voting and being elected or being voted; and Defendants violated Section 5150 of California Corporations Code (hereinafter, “the Code”).
KAFLA is a non-profit organization for the public benefits of Members of Korean people in Los Angeles County, and thus is governed by Part 2 of the Code (Sections 5110 through 6910). Among the executive officers including president and directors, the only position that is elected by the registered members is President, whereas directors are not elected by the registered members but basically appointed by President. In this sense, the directors do not represent the members, whereas the congressmen represent the people of the United States. The directors’ function are more like the council members appointed by President of the United States, figuratively.
Therefore, the amendment of Bylaw of KAFLA shall be based on Section 5150 (b). Regardless of the real practice of KAFLA, it should be based on that Section, which states:
Bylaws may be adopted, amended or repealed by approval of the members (Section 5034); provided, however, that such adoption, amendment or repeal also requires approval by the members of a class if such action would: …
According to this Section of the Code, Article 21 of Bylaw complies with the California law. Article 21 states, “Revision of the Bylaws shall require favorable votes from two thirds of the registered members.”
On the contrary, Defendants are still contending, “Revision of the Bylaws shall require favorable votes from two thirds of the directors.” And they seem to allege that the governing code is Section 5150(a), which states:
Except as provided in subdivision (c) and Sections 5151, 5220, 5224, 5512, 5613, and 5616, bylaws may be adopted, amended or repealed by the board unless the action would:
(1) Materially and adversely affect the rights of members as to voting, dissolution, redemption, or transfer; …
By the way, unfortunately, most of the amendments of Bylaw by directors not by registered members during Ha’s terms materially and adversely affect the rights of members as to voting, dissolution, redemption, or transfer, as will be specified in Part III. Therefore, Defendants’ act violates not only Section 5150(b) but also Section 5150(a) of the Code.
In addition, the translated version of Bylaw submitted by Plaintiffs is correct and accurate, as will be stated in a section of Part IV.
Moreover, Defendants still failed to meet the two thirds of the directors and failed the lawful process, too, which will be described some sections of Part IV.
Plaintiffs prepared the declarations from victims regarding this case to prove the above issues. Plaintiffs hope that they will aid in Court’s decision.
Some of the declarations are testimonies from people who were going to enter into the election race for president of the Korean American Federation of Los Angeles, Inc. but could not, because the two defendants illegally amended the bylaws and election regulation provisions. They also declare regarding instances of unlawful activities and damages incurred by one of the defendants (Kee Hwan Ha) during his illegal tenure of presidency between the years 2000 to 2002.
III. Plaintiffs’ contention of the invalidity of the 2000 amendments to the bylaws was agreed to by all of the trial courts that considered this matter.
Defendants, during the earlier proceedings in the trial courts, including the trial before Honorable Judge Mel Red Recana (hereinafter, “Judge Recana”), tried to argue that numerous amendments have been made by directors in the past and that, as such, the amendments of 2000 by defendants herein are likewise in accordance with the Bylaws at the time and therefore valid. Their arguments also included that the Bylaws as of 1999, specifically Article 6, Section 2, should be read to require only two third of directors and that it would be ludicrous to require the approval by the members which number in hundreds of thousands in order to amend the Bylaws.
All of above arguments were considered by both Honorable Judge David P. Yaffe of Dept. 86 and Mel Red Recana of Dept. 45 between July of 2002 and January of 2003. Their decisions all agree with plaintiffs’ contention that the 2000 amendments were contrary to the Bylaws of the KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. (hereinafter KAFLA). Both decisions by above judges are attached hereto as Exhibit 1 and 2.
IV. The controlling bylaws immediately prior to the 2000 amendments was the 1999 bylaws as admitted by both parties during the earlier proceedings.
Defendants’ earnest attempt to obtain the “original” Bylaws of KAFLA seems to have started only after the trial has begun. This is fully a year and half after the filing of the lawsuit! The only reason given by defendants is that KAFLA did not have a copy. The more honest response would have been “because KAFLA never considered the 1982 Bylaws which just-happened-to-be-filed- with-the-Franchise-Tax-Board-at-the-moment’s-urgency-to-maintain-the-tax-exempt-status to have any relevance at all during the past twenty (20) years or so.”
Now, only after learning from the trial court judge at the beginning of the trial that the “original bylaws” may shed some light, defendants, all of sudden, found the relevance of whatever version the Bylaws that happen to be filed with the Franchise Tax Board. The truth is that this 1982 Bylaws is not controlling in this case because of the following.
1) The original Bylaws should have been one that was adopted in 1962, the first year of incorporation of KAFLA, not the 1982 version which is fully twenty years after the incorporation.
Defendants here are, in effect, misleading the Court by attempting to label the 1982 Bylaws as the so called “original” Bylaws, despite the facts that the KAFLA was incorporated in 1962, the bylaws were kept in Korean only and that the first Bylaws was translated into English in 1962. (See Declaration of defendant, Kee Whan Ha in support of trial by Declaration, par 6) Their desperate attempts caused them to submit two conflicting account of the year of incorporation in one declaration by Francis Hur. In paragraph 3 of the Hur’s declaration, it is stated that in 1962 the KAFLA was not yet incorporated and that in 1982 the KAFLA was incorporated. However in paragraph 7, he stated that the KAFLA was incorporated in 1962.
The truth is that the KAFLA was incorporated in 1962 and that it was never in dispute until this latest attempt by defendants to rewrite the history of the KAFLA in order to serve their interest. The 1999 Bylaws cover sheet bears the logo of KAFLA, which ubiquitously appears as a symbol of KAFLA in different community functions and on the logo itself the date of incorporation is designated as June 14, 1962. (Exhibit 3)
2) The 1999 Bylaws show fundamental remake of the structure of the organization, which is a substantial departure from the 1982 Bylaws, especially in the language containing the relationship between the members and directors, and as such it would be misleading to attempt to conclude the meanings of the 1999 Bylaws from the 1982 Bylaws.
It is important for the court to note that the comment by Honorable Judge Mel Red Recana inquiring what, if any, light the original bylaws may shed seems to zeroing in on whether the Article 6, Section 2 requires the approval of two thirds of registered members or the two thirds of directors, not whether the directors have the right to amend the Bylaws or not. In this vein, the logical conclusion is that, considering the fact that the 1982 Bylaws is so radically different from the 1999 Bylaws, including but not limited to the whole insertion of new Article under the heading “Meeting”, the 1982 bylaws should not control the reading of the Article 6, Section 2 of the 1999 Bylaws.
3) Both parties, by submitting their respective versions of translation of the 1999 and 2000 Bylaws throughout the prior litigation in the trial court level, admitted to the controlling authority of the 1999 bylaws to adjudicate the validity of the 2000 amendments. Please refer to the Declaration of ANDREW KIM (Exhibit 4).
V. Defendants’ conduct in 2000 also run directly counter to the California non-corporation laws.
The Honorable Judge Mel Red Recana in his Statement of Decision, dated Jan. 14, 2003, laid out three issues on which the case turns. The three issues are as follows.
First, was the 1999 KAFLA Bylaws validly amended enabling the President to run for re-election?
Second, granting arguendo that the Bylaws could be amended by 2/3 vote of the Board of Directors, was there in fact a 2/3 vote of the Board?
Third, granting arguendo that there was a valid amendment of the Bylaws with the 2/3 vote of the Board of Directors, was such amendment consistent with pertinent provisions of the California Corporation Law?
The court ruled against defendants on the first issue alone without further considering the remaining two issues. However, even if the Court considered the remaining two issues, the Court would have ruled in the same way.
On the second issue, plaintiffs, in the moving paper, informed the Court that the signature of the Declaration of Grace Han, the Moderator of Bylaws Revision Committee in 2000, submitted by defendant, was declared by Ms. Han to having been forged. This blatant misdeed forces one to also question other assertions by defendants.
California Corporations Code speaks for itself. It is easy to see that allowing a President that formerly could serve only one term to serve two terms is an action that “materially and adversely affects voting rights” (Corp. Code section 5150(a)). With all of the advantages that the incumbent has, such as the right to amend the bylaws and election regulations, including changing the qualification of candidates, and the power to appoint the election management committee, it is not difficult to see how the whole election landscape can be altered to practically guarantee the victory for the incumbent and his team of directors. It obviously adversely affected Ha’s competition during the 2002 election. Please refer to the attached declaration of Andrew Kim.
VI. The conducts of Defendant Ha and his team of directors who occupied the KAFLA in 2000 are reprehensible and dealt serious blow to the 40 year tradition and credibility of the organization.
It is clear that Mr. Ha and his team of directors who occupied the KAFLA in 2000 until 2004 have very little appreciation as to what kind of damage they have inflicted upon the KAFLA.
Mr. Ha, in his declaration, touts as his good deeds the fact that, during his Presidency, the KAFLA paid for one hundred Korean American senior citizens to travel to the Grand Canyon, raised and donated $1,250,000 to the Red Cross for victims of September 11 and organized an event at the Staples Center to watch Korea play in the World Cup. He seems to have very little appreciation of the fact that such works are only possible when the KAFLA continues to maintain its lofty image as the bona fide representative voice for the Korean American community in the Los Angeles county. He was a beneficiary of many decades of hard works by previous presidents and directors who preceded him. Now, after his four years, unfortunately he left the organization confused and uncertain as to where it stands.
VII. Conclusion
As shown in Exhibit 5, DECLARATION OF SIMON BAE IN SUPPORT OF PLAINTIFFS’ OPPOSTION TO DEFENDANTS’ WRITTEN SUBMISSION IN TRIAL BY DECLARATION, Plaintiff Bae describes more explanations, descriptions and analyses in his own words. Plaintiffs hope that this Court also consider his declaration seriously.
WHEREFORE, Plaintiffs pray for damages and relief against defendant, and each of them as follows:
1. For temporary dissolution of KAFLA and nullification of the current KAFLA as one of California non-profit organizations until the completion of the new re-election (because of the fact that Defendants ignored and disturbed and interfered with the order for re-election of Judge Recana of January of 2003).
2. For the restoration of the bylaw of KAFLA to the bylaw of 1999.
3. For re-election of President of KAFLA by the restored bylaw within a reasonable period.
4. For compensatory damages in an amount to be proven at trial.
5. For damages from emotional distress and mental suffering in an amount to be proven at trial.
6. For consequential damages.
7. For costs of suit incurred herein including attorney fees and interpretation/ translation fees.
8. For punitive and exemplary at damages in an amount to be proven at trial.
9. For such other and further relief as the court deems proper and appropriate.
DATED: March 28, 2005
LAW OFFICES OF ANDREW KIM
By_________________________________
ANDREW KIM, Attorney for Plaintiffs
PROOF OF SERVICE
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is, 110 N. Berendo St., Los Angeles, California 90004.
On March 28, 2005, I served the foregoing documents described as PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ TRIAL BRIEF on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:
Katherine Frenck
Paul, Hasting, Janofsky & Walker, LLP
515 South Flower St., 25th Floor
Los Angeles, CA 90017
BY MAIL
I caused such envelope to be deposited in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with this firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. postal service on the same day in the ordinary course of business. I am aware that on a motion by party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the “date of deposit for mailing" in Affidavit.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on March 28, 2005 at Los Angeles, California.
___________________
Jin Ree
ANDREW KIM, ESQ. (SBN 147015)
LAW OFFICES OF ANDREW KIM
3540 Wilshire Blvd., Suite 1116
Los Angeles, CA 90010
(213) 386-4497
Attorney for Plaintiffs SIMON BAE; and
MEMBERS OF THE KOREAN AMERICAN
FEDERATION OF LOS ANGELES, INC.
SIMILARLY SITUATED
SUPERIOR COUNRT OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
SIMON BAE; and MEMBERS OF THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. SIMILARLY SITUATED, Plaintiffs,
vs
.KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.; KI HWAN HA, and DOES 1 to 50, inclusive, Defendants
Case No.: BC275912(Assigned to Hon. Kenneth R. Freeman)DECLARATION OF SIMON BAE IN SUPPORT OF PLAINTIFFS’ OPPOSTION TO DEFENDANTS’ WRITTEN SUBMISSION IN TRIAL BY DECLARATIONDATE: May 11, 2005TIME: 8:30 AMDEPT.: 64
I, Simon Bae, declare as follows:
I am an individual, over the age of eighteen. Each of the matters stated herein is known to me for my own personal knowledge, except those stated on information and belief which I believe to be true. If called upon as a witness, I could and would competently testify thereto.
I. Rebuttal to Defendants’ allegations
Defendants allege, “This trial is limited to a single issue.” However, Plaintiff is informed and thereon believes that this is not a single issue since he has found the following offenses. Plaintiff points out Defendants’ impudent willfulness that for the last 3 years, Defendants have not admitted the truth and have concealed and shortened and denied the facts willfully.
At the first trial on June 19, 2002, the essence of the trial was to restrain the position of Defendant for the reason of unlawful bylaws amendment and unlawful extension of the president term by two more years. However, because more than10 additional facts have been found until now, Plaintiff is informed and believes and thereon alleges that this matter is also extended to multiple issues. The additional facts include the continuous violation of California non-profit organization laws and unlawful signature forgery and misrepresentation by Defendant Ha and the current president.
Now, Plaintiff requests this Court to punish seriously Defendants, who have continued the intellectual and deliberate acts of avoiding responsibilities.
Defendants allege, “The amendment of the bylaws in 2000 was proper, as it was enacted following a voted and approved by board of directors, who were appointed by President of KAFLA.” However, their allegation ignores the non-profit organization laws.
KAFLA, which is a public benefit organization, is not a private company. Therefore, their fallacious acts restrain the basic rights of the people materially and adversely and are as bad and violent as the acts of communistic despots who ignored the basic principles of democracy. Defendants’ fallacious acts include the extension of president term that is a serious provision, prohibiting the candidate for president for 10 years for the reason of filing a complaint for the unlawful election, demanding additional $30,000 besides the existing $30,000 (this $60,000 can be used as election cost) from candidates, requiring to submit a written promise, “I will not file any complaint because of the election” to get back part of $60,000, the authority of extension of president term is owned by directors not by the registered members who elected the president, etc.
The fact, that Defendants have operated a non-profit organization while violating California laws in the United States based on freedom and legalistic society, is blamable socially, and in this way Defendants transgressed the rights of the registered members as well as of 700,000 Korean people in Los Angeles County and about 300,000 members of KAFLA.
Defendants’ contention, “The only support Plaintiff has offered for his contention that amendment of the bylaws requires a vote by the registered members is his translation of the 1999 bylaws. Plaintiff is barred from replying on this translation at this trial, as the California Court of Appeals found that Plaintiff’s translation of the 1999 bylaws had been erroneously admitted into evidence during the first trials as no foundation was laid to demonstrate its reliability,” is absurd. Mr. Jae Geun Lee (Tel: 213-509-0105; Fax: 562-623-9998), who was the acting president at that time and made the 1982 bylaws and registered with the Federal laws and California laws, told Plaintiff, “The board of directors cannot amend the bylaws. It violates the state law that the board of directors amend the bylaws. In 1982, I used my own personal funds in the amount of $10,000 to invite an attorney from Korea and made the bylaws of KAFLA. I registered the bylaws with the United States Federal laws and with California State laws so that the directors cannot amend the bylaws arbitrarily.” And Mr. Lee promised, “I will testify in the Court if necessary.”
In KAFLA, the members voted the president, and for the last 40 years, the directors had never made any material amendments of the bylaws such as the provisions about the extension of president term, re-running as president, limitation of candidacy, etc. until this case occurred. These acts that materially and adversely affect members’ right had never been made by directors until the acts of Defendants in 2000. These acts made by directors in 2000 are unlawful.
This case was reversed and remanded from Appellate Court in March of 2004. Defendants’ attorney moved to this Court to dismiss this case with prejudice since Defendant Ha retired from presidency.” Plaintiff appreciates that this Court made the ruling, “There is problems. This case cannot be dismissed.”
Defendants states, “Due to Plaintiff’s evident litigious nature, Defendants suspect that, even if they prevail in this matter, this case may not come to an end.” However, it is still shocking that Defendants continue to violate California non-profit organization laws. What is the evident litigious nature?
If Plaintiff wins, and the persons who were elected unlawfully will be punished and the new president will be elected by free election, then the purpose of Plaintiff will be achieved and all the matters of this case will be closed.
Suppose, for example, a despot created bad provisions in the constitution to extend his term and completed the extended term, and one of the followers of the despot succeeds the presidency without voting while excluding other candidates pursuant to those bad provisions. Are these unlawful acts evaluated as proper in history?
Plaintiff oppose to Defendants’ request that the Court dismiss Mr. Ha from this action before ruling on the matter at hand since Ha retired from presidency. The major purpose of including Ha as a Defendant in this case is not to force Ha to expend needless time and expense, but to re-affirm the great value of laws of the United States since Defendants infringed the great value of the laws as indicated by Judge Recana in January of 2003, and to confirm the unlawfulness of Defendants, and to punish them who refused the order of the Court about re-election, payment of attorney fees and other costs to Plaintiff, etc., and to apply the temporary nullification of KAFLA and re-election to the current president elected by the unlawful bylaws, pursuant to California non-profit organization laws.
The bad bylaws still exists, even though Ha finished his 2nd term. Because Defendants changed so many provisions of the bylaws and the election provisions unlawfully, they should admit that Defendant Ha and other 17 directors controlled it unlawfully without complying with California laws while extending president term, limitation of candidates, etc.
Especially, the elections of the president by the registered members over 18 years of age were interrupted two times by limiting and interfering other candidates. The term of Ha during 2002-2004 shall be nullified retrospectively as the extension of the unlawful acts.
If a very strong irrevocable judgment is not made against the offenses by Defendant in this Court, Defendant will disturb the judgment of the Court again and Korean community will fall into a big turmoil, and the people will suspect the speedy and fair legal process, and the followers of Defendant Ha will succeed the presidency one after another. Therefore, in this Court, the despicable Defendants should be punished for their offenses depriving members of the rights, violating California laws, ignoring free democratic voting system.
Whereas Defendant owns tens of millions dollars including real properties, personal properties, overseas properties including unknown ones, Plaintiff has only 34 year of media experience and owns no real property and has suffered a lot of monetary and mental damages with the direct and indirect litigation expenses of about $60,000 for this case for more than 3 years. Plaintiff borrowed private debts for this case and he got the loan with the security of the car in 2004 and the car was lost through auction. Therefore, he believes that Defendant’s allegation of forcing Ha to expend needless time and expense is unreasonable.
II. Comments on the concealment, distortion, fabrication, misrepresentation by Defendants
Defendants state that the amendment of the bylaws were made through the votes of board of directors including 1984. However, this demonstrate the additional evidence of the offenses. Plaintiff has become one of KAFLA members since 1981. Since then, more than 5 presidents were elected directly by the registered members. During those terms, no newspaper announcements for the material proposed amendments of the bylaws such as extension of president term, and the directors of KAFLA changed the bylaws according to the will of the president. It is unlawful by itself.
However, it should be noted that other previous presidents had never amended the provisions of the extension of president term for the purpose that the current president would continue an additional term. Worsely, Defendant Ha broke his own promise not to run the 2nd term by himself, and in order to interrupt other candidates, Defendants amended other provisions as stated in Plaintiffs’ brief, and thus was elected again without voting of the registered members. This kind of bylaws still exist.
The procedure of the extension of president term by board of directors of KAFLA was also unlawful clearly.
Defendant Ha planned to extend the president term for the first time in the history of KAFLA since 1982. Defendants summoned directors for the amendment of the bylaws from about June 6, 2000. But among the directors, some directors who were attorneys refused to meet while telling, “This kind of bylaws amendment cannot be made by directors.” Because of various reasons including the above reason, the summon of directors could not meet the quorum. Plaintiff and other people heard from Grace Han, who was the moderator of the bylaws amendment committee, “For the extension of president term, Ha promised to her, ‘I will not re-run for presidency even though the extension is amended.’ But he broke the promise to re-run. I was embarrassed. Because of that, I have been in uncomfortable relationship with him.”
In addition, on the day of summoning the directors for the extension of president term, only 17 directors among about more than 43 directors were present, and some of those who were not present communicated through fax. Pursuant to California non-profit organization laws, it constitutes an offense against this Court that Defendants are alleging that it was proper to amend the bylaws for extension of president term by the directors while voting through fax without being present.
At the first hearing on June 19, 2002, Judge Yaffee ruled that the amendment for extension of president term and the election thereon is unlawful. If Defendants continue not to admit California statutory laws and the judgment of the judges and harass the poor Plaintiff in this way, Plaintiff may file a complaint against the attorneys for Defendants to California Bar Association.
It was a fabrication to allege the presence of 26 directors for quorum for the extension in June of 2000. The horrible offense of Defendants who forged the signature of Grace Han, the moderator of bylaws amendment committee, and submitted it to the court is additionally punishable. Plaintiff has submitted the exhibit regarding this forged signature to the court.
After the trials started on June of 2002, in about August of the same year, Grace Han, the moderator of the bylaw amendment committee, called Plaintiff and two other Korean persons to a coffee shop and told them, “Defendant Ha seemed to forge my signature in the document submitted to the court. Please check it…” She also signed her signature in her business card to them. Besides Plaintiff, Defendants also submitted the declaration containing that forged signature to the court to prove the amendment of the bylaws. Plaintiff met Grace Han again in February of 2005. She testified, “The signature on the document submitted by Defendants is not my true signature.” And her husband was also surprised while telling, “This signature is not my wife’s signature. Who forged it? How?”
Related to the forgery of the said signature, there is a well-known rumor that one of the followers of Ha is the forger of signatures.
The newspaper, radio and television media also published shocking straight news about the unlawful amendment of the bylaws.
As filed in the court already in 2002, the media in Korean community intensely criticized Defendants about Ha’s intention of re-election without voting after the amendment, less than 2/3 votes of the registered directors, voting through fax, etc. The former presidents also complained severely while telling, “It is improper for the incumbent president to re-run while interrupting other candidates. There is a procedural defects including the election related provisions. It is unethical. It is absurd since KAFLA is not a private company. It is not fair that the incumbent representative director becomes the moderator of election control committee. It is problematic to limit a certain candidate….” When declaring that Defendant was elected unlawfully, more than 50 members including more than 20 chief officers of Korean community organizations demonstrated in front of KAFLA Hall, with the picket of “Dismiss Kee Hwan Ha who was elected unlawfully. Do re-election….”
Moreover, in front of Oriental Mission Church, more than 70 members including chief officers demonstrated against Defendants. There was also signature movements in the streets, which were submitted to the court. The attorney for Defendants does not know about these demonstrations against Ha. Even now, the newspaper, radio, and television media in Korean community continue to release the news about this case pending in this Court, and they are anticipating the judgment on May 11, 2005.
Hereby, this Court should consider the facts that Defendant and his followers exercise professional skill for forgery of documents, many people have given up the case since Defendants have fabricated and exaggerated various exhibits professionally. For the last 10 years, Defendant Ha was involved with about 100 litigation cases regarding real property transactions, etc, and he also has a criminal record of misdemeanor.
III. Some of the specific points against Defendants
Defendants allege in the Appellate Court, “The trial court denied the motion for new trial after submitting 1982 bylaws as a new evidence.” But it is just a Defendants’ attempt to delay the trial. From June of 2002 until January of 2003, two judges heard the allegations of Defendants for 3 times, and especially Judge Recana reprimanded Defendant for damaging the great value of the law for about 20 minutes before reading the judgment.
The acting president of KAFLA in 1982, who registered the bylaws with the Federal laws and with State laws also told that he made the bylaws so that the directors cannot change the bylaws randomly and especially cannot extend the president term unlawfully.
It is a shocking evidence of violation of California non-profit organization laws by Defendants that Defendants are still wrongfully using 1982 bylaws not only in the Appellate Court but also in this Court. Defendants who are not remorseful yet should be punished in this Court.
KAFLA, a public benefit organization, provides Article 6 of Bylaw, which states, “Regular members shall have the right to vote and to be elected, and the obligation to comply with the Bylaws.” This implies that the registered members, who are over 18 years of age and registered for election, have the right and duty to vote for the amendment of the bylaws.
The election of the President of the United States and any amendment of the constitution shall be approved by the people. Likewise, the election of the President of a non-profit organization like KAFLA and any amendment of the bylaws such as the extension of president term shall be approved by the registered members. When amending the provision of extension of president term, Defendant should have announced in the media including newspapers and informed the proposed bylaws amendment, and decided by the public opinion of the members. Defendants cannot deny the fact that they violated California non-profit organization laws. It is a remarkable offense against State laws by Defendants that they are still insisting that the amendment of the bylaws including extension of president term and re-running can be decided by the directors only.
Suppose only the directors have the authority to amend the bylaws as alleged by Defendants. Then, 2/3 votes of the registered directors are required for the amendment. Nevertheless, those facts of the presence of only 17 directors, voting through faxing, forging the signature of Grace Han, and cheating the court as if the bylaws amendment was lawful demonstrate that they deserve additional penalty.
Jae Geun Lee, the acting president of KAFLA in 1982, represented, “The bylaws amendment cannot be made by board of directors” and “I made the bylaws to prevent such a problem.”
The purpose of the offense of Defendants’ changing the provisions of the extension of president term and of election in the bylaws, which had been kept for 40 years, was not for the public benefits of the members. Rather, Defendants changed those provisions of the bylaws with 17 directors who followed Ha for the purpose of extension of his own term. The changes include to interrupt other candidates for the presidency. Under this scheme, Ha re-ran and re-elected without other candidates and without voting. Thus, the punishment will be inevitable.
Another specific evidence to extend his own term is the fraudulent act to extend 6 more months by amending from “December of the expiration of the presidency” to “The elected President’s Group and the directors shall celebrate the inauguration ceremony between June 10 and June 30 of the election year.” (See Article 22 of the unlawfully amended bylaws in 2000.)
One of the most offensive amendments by Defendants is to deprive the members who want to become president of the right to be voted with the provision, “Those who file lawsuit for the wrongful election cannot be candidates for presidency.” This impudent amendment was unprecedented in the history of KAFLA.
In addition, in order to discourage other candidates, Defendants also changed the election related provision from $30,000 to $60,000 of trusted $30,000 plus donated $30,000. And they also changed it to “This money can be used for election cost, and candidate must submit written promise not to file a lawsuit after the election to get back the balance of the trusted amount.” (See Section 5-6 of Election Control Rule.) Thus, poor candidates virtually cannot run for presidency.
Section 4 of Election Control Rule (qualification for the candidate for president) had maintained for 40 years as “Those who have the records of felony or misdemeanor crimes or are unethical cannot be candidates”. But Defendants deleted this provision without asking approval of the registered members. It has been known that Ha has a criminal record of misdemeanor.
Additional offenses have been discovered recently. The current president, Yong Tae Lee, who was elected as president in June of 2004 without voting pursuant to the unlawful amended bylaws and election related provisions after Ha finished the unlawful term (2002-2004) was involved with these newly discovered offenses.
This is a material fact that the bylaws and election related provisions amended by Defendant Ha without the approval of the members have not been restored.
One of the hottest issues is whether the directors or the registered members have the right to amend the bylaws in Article 21 of the bylaws. By the way, it was newly discovered that around June of 2004, the said Article relocated from 21 to 17 and a word, “directors” is inserted there, which can be interpreted as “registered directors” instead of “registered members”. This amazing offense becomes a new factor in this trial. When and how was this provision of the bylaws amended? Was it still amended by 2/3 votes of the registered directors rather than by 2/3 votes of the registered members? If then, when was it amended?
Article 5 of 1999 bylaws, which had been maintained for 40 years, restricted the membership to permanent residents and citizens over 18. However, between Ha and the current President, Yong Tae Lee, they amended this article simply to “Korean Americans residing in Los Angeles County”. Thus, even illegal aliens can become registered members. This idea is dangerous, since we should consider the terror risk, which is concerned by Department of Homeland Security.
KAFLA, a public benefit organization, received more than $300,000 of donations or supports. Pursuant to Articles 30 and 31 of Chapter 9 (Auditor) of the 1999 bylaws, “The Federation shall appoint two auditors to improve the quality of Federation work and ensure fait financial accounting.” “One person from the certified public accountants in Los Angeles and another person of high moral repute in Korean American society shall be appointed as auditors of the Federation. An audit shall be conducted once a year and the result shall be reported to the board of directors, and then announced publicly in the daily newspaper.” However, Defendants deleted whole Chapter 9 and amended and simplified the above provisions to “2 auditors shall be appointed by board of directors.” This amendment is also suspicious.
Defendant Ha never announced it publicly in the daily newspaper. And he never reported specifically to the board of directors according to the representation of the directors. And the current president did not announce the settlement report from the former unlawful president publicly to the members. This implies the offenses of Defendant Ha still continued until the current president who was elected by the unlawfully amended bylaws.
KAFLA with the current president received about $250,000 in a hotel from Korean community and the members in the end of 2004. The usage of the amount is vague and suspicious, and currently about $30,000 may be remained. The donation to KAFLA, a non-profit organization, is shall be investigated.
Especially, during his terms of 2000-2004, Defendant Ha received the amount of about $300,000 - $350,000 per year as donation from Korean community, etc, and the total amount is about $1,200,000 - $1,400,000. Ha never announced how to use this amount to the members. On October 13, 2004, 4 months after Ha retired from presidency, Ha prepared financial settlement report and delivered it to the current president in a restaurant.
The report has no signatures of auditors and no bank statements. It has only signature of Ha. The media is releasing the news that Defendant Ha embezzled about $250,000 - $330,000 out of total received amount of $1,400,000 for 4 years. Plaintiff requested the investigation to California State District Attorney Office and FBI on October 14, 2004. Then, the media and the members requested to show how to use the donations. In response, Ha just said irresponsibly, “If you want to check the settlement report, visit me. I will show it to you.” This person shall be punished judicially for the charge of violation of non-profit organization laws.
Our members cannot know whether or not Ha and newly unlawfully elected president reported the financial report to California State government. And Defendants did not clarified the contents of how to use the enormous amount of money from the members, Korean banks, and companies. The current unlawfully elected president has the duty to confirm it and report it publicly to the members.
In addition, in Chapter 8 of the bylaws (Treasury), Defendants also amended the fiscal year arbitrarily from “April 1 to March 31 of the following year” to “July 1 to June 30 of the following year”. The members became angry who changed more than 10 provisions of the bylaws unknowingly to the members.
Plaintiffs request this Court to punish these despicable Defendants irrevocably and clearly and seriously.
In January of 2003, Judge Recana ordered, “Defendant shall step out from presidency and re-election shall be performed.” But during the preparation of the re-election, a disturbance by the strong organization power, etc. make the order dissolved. Even the members of dispute mediation committee showed suspicion like delaying the time. According to the public opinion of Korean community, in any lawsuit, it will be very difficult to fight with Ha who has a lot of money.
At that time, Plaintiff was frustrated. At this chance, Defendants filed the appeal. During this period of appeal, the Appellate Court delayed the case for 1 year and 3 months, and thus infringed the right of speedy trial of the people. The Appellate Court appreciated Ha’s contribution of donation to Red Cross, though it was disregarded in the trial court.
Anyway, although Plaintiff requested the punishment against the unlawfully elected person of 2 year term through the court in the great United States, the Appellate Court disappointed our Korean community by delaying judgment like a comedy, which allowed Ha to fill his unlawful term of 2 years. Plaintiff sent complaint letter against the 3 judges to the presiding judge of the Appellate Court, etc.
IV. Some of the additional errors and fallacies in Defendants’ brief
Besides indicated in the above 3 parts, Defendants brief and attached documents show a lot more errors and fallacies. Some of them are as follows.
Defendants allege that their acts of amendment of the bylaws and election related provisions did not materially and adversely affect the rights of members as to voting and transfer. However, their allegation is completely wrong. Why their allegation is wrong was already explained and analyzed in Plaintiffs’ brief together with many declarations and the above parts of this opposition.
Once again, the bylaws of KAFLA correspond to the Constitution of the United States. Suppose President of the United States and the council members such as Secretaries of Departments (of State, of Defense, of Justice, of Commerce, of Education, of Transportation, etc.) appointed by President amend the constitution to extend the president term for the third term (then, total 12 years will be available to 1 president). Then, who think this amendment of the constitution will not materially and adversely affect the rights of the people of the United States as to voting and transfer?
The bylaws of KAFLA shall not be amended so easily and so frequently only by the president and the directors appointed by the president, as the Constitution of the United States shall not be. If, fortunately, the president is a modest and not a despotic person, during his or her term, the bylaws may not be amended at all or the minor amendment, if any, will not materially and adversely affect. On the contrary, unfortunately, during the terms of Ha, the bylaws and elections related provisions were amended a lot. As Plaintiff Bae described in detail in his briefs and this opposition, some suspicion about the embezzlement of KAFLA fund by Defendant Ha has been caused mainly by the so easy amendments of the bylaws by the appointed directors but not by the registered members. (Compare Articles 30 and 31 of 1999 bylaws, and Article 25 of 2000 bylaws.)
To prove that 26 directors not 17 directors were present in the meeting of directors on June 12, 2000, Defendants still failed to submit the clear and convincing evidence like 26 declarations of 26 directors or minutes yet. All they did was to utilize the “statement of undisputed material facts”, which contain errors or at best logical fallacies. They utilized Paragraphs 39 and 40 of Exhibit A of Declaration of Frenck instead of actually submitting the minutes. These two paragraphs were marked “Undisputed” in the above Exhibit A prepared by Attorney Endler, who was the former attorney of record of Plaintiffs. Now, for whatever reasons, Plaintiff Bae believes this was a mistake of Attorney Endler. Nevertheless, Mr. Endler marked “Disputed [KAFLA has not submitted minutes.]” all through Paragraphs 34 through 38. If Paragraphs 34 through 38 are disputed, logically Paragraphs 39 and 40 must be also disputed, regardless of the negligence or inadvertent mistake of Mr. Endler. Now, still without showing any clear and convincing evidence like the minutes or 26 declarations, Defendants allege that “This was reflected in the Board meeting minutes” is undisputed, and thus the evidence is sufficient to prove the quorum of 26 presences and 2/3 votes. Conclusively speaking, the evidence of the quorum by Defendants is still insufficient.
Defendants argue, “Bae’s theory regarding registered members is illusory, as KAFLA has no registered members.” However, registered members of KAFLA exist, as registered voters of the United States exist. As analyzed in Plaintiffs’ brief (See attorney version), registered members of KAFLA vote the president of KAFLA, and at that time, they can approve or disapprove any proposed amendments of the bylaws. Then, the amendments of the bylaw will never happen secretly any more from now on. Remember that even Defendant Ha was elected as the president of KAFLA by these registered members.
By quoting the opinion of the Appellate Court, Defendants argue, “Bae’s translation of the 1999 bylaws was erroneously admitted into evidence.” But Plaintiff opposes to their argument.
Let us quote directly from the opinion (P 12), “The copy of Exhibit 1 that had been attached to Bae’s complaint was accompanied by a certification that was not trustworthy. As KAFLA and Ha contend, and as Bae concedes by not presenting a contrary argument on appeal, this document was erroneously admitted.”
It is a fact that Attorney Endler did not present a contrary argument. But it is not a fact that Bae conceded to Ha’s argument. It was simply a negligence of Bae’s attorney.
Until the oral argument in December of 2003, Plaintiff had believed that Plaintiff’s attorney filed the required documents with the Appellate Court already, since in October of 2003, Plaintiff confirmed through other attorney, Mr. Ji Young Kim, by paying $500 to that attorney, that Plaintiff’s attorney filed them with the Court. However, later, Plaintiff found that Plaintiff’s attorney had never filed any document with the Court. Then, the appellate judges reprimanded the attorney, “Did you really pass the bar examination?” Then, the attorney replied he had no experience in the appellate courts. Plaintiff was so astonished and frustrated and upset. For 1 year when this case was pending in the appellate court, Attorney Ender and Attorney Ted Kim pushed their responsibility to each other to delay the process in the Court, even though Plaintiff urged it to the attorney more than 20 times. In this way, Plaintiff was not given any chance to review the Respondent’s brief at all by the attorney before filing it with the Court. This is one of the reasons why it is not a fact that Bae conceded to Ha’s argument.
The certification of Jacky Noh does not clarify whether she is a California State certified court interpreter of Korean or not. That was why the certification looked like untrustworthy, and unfortunately, Mr. Endler did not point it out precisely. Now, in the brief (See the in pro per version), it is clear and convincing that Jacky Noh is a California State certified court interpreter of Korean with the certificate number of 300150. She is actually one of the most competent translators among Korean certified court interpreters and she is one of most senior those interpreters. The number itself, 300150, shows that she has high seniority and longer experience as a certified court interpreter, while the first 3 digits, 300, implies certified court interpreters (100 implies certified administrative hearing interpreters). For example, Jin Ree’s number is 300430, which indicates Jacky Noh has more experience as a certified court interpreter than Jin Ree, since earlier number implies more experience.
Based upon this fact and based upon the negligence of Mr. Endler, the certification of Jacky Noh shall be trustworthy again regardless of the opinion of Appellate Court. Interestingly, we may say the Appellate Court ruled an error but we cannot say it was the fault of the Appellate Court. If it is a fault, it is a fault of Mr. Endler. Therefore, this Court should correct the fault of Mr. Endler rather than the fault of the Appellate Court, and thus should regard the certification of Jacky Noh as a trustworthy one.
V. The problem still continues in this current term of KAFLA
According to the news from March 23, 2005 of Korean community media including Korea Times and televisions, the current KAFLA President, Yong Tae Lee, who is the successor of Defendant Ha, demanded money from Korean politicians who visited KAFLA as form of donations. And it is disclosed that they did not make immediate “financial report”. (See Exhibit 6.) The administrator of KAFLA said that this kind of receiving donations has been a custom and thus he shocked the members.
According to Korea Times, for 2002 – 2004 when Defendant Ha was the president, more than 20 Korean politicians, who visited KAFLA, gave donations mostly in cash (usually travelers give it in cash) to KAFLA. But only one donation was recorded in KAFLA. Currently, it has become a serious issue in Korean community.
In addition, in the regular meeting of the board of directors after the current president was elected pursuant to the unlawfully amended bylaws, about in July of 2004, the bylaws was amended again without asking the approval of the members. They proceeded the meeting in Oxford Palace Hotel while telling, “If you agree, please raise your hands.” In this way, they amended several provisions including amending it to “2/3 votes of registered directors.”
VI. Conclusion
Based on the above statements, Plaintiff requests again strongly the court to order “the immediate re-election, temporary nullification of KAFLA as a non-profit organization until finishing the re-election” rather than simply “re-election”, while considering that Defendant Ha and the current successor have strong fund and organization.
Our members and Plaintiff Bae do not have enough funds to continue to fight against the Defendants who have it. He got the loan of $5,000 with the security of the car in 2004 and the car was lost through auction.
By considering this, Defendant and the current unlawfully elected president who denied the basic principles of democracy should be punished. Plaintiff believes that this Court will realize the judicial justice.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 28, 2005 at Los Angeles, California.
By: ______________________________
Simon Bae
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