Simon Bae, publisher and editor
Korea Unity Press, U.S.A.
3010 Wilshire Blvd.
Los Angeles, California 90010
Telephone: (213) 305-7100
Plaintiff in pro per
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
SIMON BAE; and MEMBERS OF THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. SIMILARLY SITUATED,
Plaintiffs,
vs.
KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.; YONG TAE LEE,
and DOES 1 to 50, inclusive,
Defendants )
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) Case No.:
EX-PARTE APPLICATION AND SUPPORTING DOCUMENTS FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUCTION
To Korean American Federation of Los Angeles, Inc., Yong Tae Lee and Does 1 to 50, inclusive and their attorneys of record:
NOTICE IS HEREBY GIVEN that on October 30, 2005, at 8:30 a.m. in Department ___ of this court, located at 111 North Hill Street, Los Angeles, California, Plaintiffs will move the court for a temporary restraining order enjoining and restraining the above-named defendants and their officers, agents, employees, representatives, and all person acting in concert or participating with them, from
1. Engaging in or performing directly or indirectly, any and all of the following acts:
a. From calling or conducting any meetings of Defendant Korean American Federation of Los Angeles, Inc. (hereinafter, “KAFLA”);
b. From installing as President, remaining in, or allowing Defendant KAFLA;
c. To deliver all assets, books, and records of Defendant KAFLA, including but not limited to the seal of KAFLA, the records, minutes, corporate books, financial statements and files to Plaintiffs; and
d. From issuing any statements or announcements regarding any related business of Defendant KAFLA; and
2. Ordering all enjoining defendants, and each of them, and their agents, servants, and employees, and all persons acting under, in concert with, or for them to:
a. Remove Defendant Lee as President of KAFLA;
b. Remove the amendments to the 2004 bylaws;
c. Restore the bylaw of KAFLA to the bylaw of 1999;
d. Hold a new re-election of President of KAFLA by the restored bylaw within a reasonable period; and
e. Execute the 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.
This application is made on the grounds that it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; and that the restraint is necessary to prevent a multiplicity of judicial proceedings, and on the further ground that great and irreparable injury will result to plaintiffs before the matter can be heard on notice. This application is based on the complaint on file herein and on the attached declarations and exhibits as may be presented at the hearing of the motion.
Respectfully submitted.
DATED: September 28, 2005
By: ______________________________
Simon Bae
Plaintiff in pro per
Simon Bae, publisher and editor
Korea Unity Press, U.S.A.
3010 Wilshire Blvd.
Los Angeles, California 90010
Telephone: (213) 305-7100
Plaintiff in pro per
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
SIMON BAE; and MEMBERS OF THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. SIMILARLY SITUATED,
Plaintiffs,
vs.
KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.; YONG TAE LEE,
and DOES 1 to 50, inclusive,
Defendants )
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) Case No.:
COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUCTION, AND PERMANENT INJUNCTION
Plaintiffs allege:
1. Plaintiff Simon Bae and other members of the Korean American Federation of Los Angeles similarly situated are and were at all times, residents of Los Angeles, and members of the Korean American federation.
2. Defendant, Korean American Federation of Los Angeles, Inc., (hereinafter “KAFLA”), is and at all times herein mentioned was, a corporation organized and existing under the Nonprofit Corporation Law of California with its principle place of business at 981 South Western Avenue, Suite 401, Los Angeles, California 90006. Its members are comprised of all ethnic Koreans living in Los Angeles.
3. Defendant, Yong Tae Lee (hereinafter, “Lee”) is and at all times herein mentioned was, a resident of Los Angeles and the former president of Defendant KAFLA.
4. Defendants Does 1 through 50, inclusive, are sued in this complaint under fictitious names. Their true names and capacities are unknown to Plaintiffs. When their true names and capacities are ascertained, Plaintiffs will amend this complaint by inserting their true names and capacities herein.
5. KAFLA was incorporated in on June 14, 1962. Its bylaws are ratified each year by the bylaws committee.
6. KAFLA’s stated objective is to represent Korean society and advocate the rights and interests of its members. It seeks to ensure the healthy development of Korean society and contributes to the cultural exchange and integration of ethnic Koreans in Los Angeles.
7. On or about March of 2004, Defendant Lee was elected President of Defendant KAFLA without actual voting by the members of KAFLA.
8. The Bylaws had not been amended or altered since 1962 until 1999 in the way of violating both Sections 5150 (a) and 5150 (b) of the Code of Non-profit Corporate Laws (hereinafter, “the Code”).
9. In 2000, immediately former president of KAFLA, Kee Hwan Ha (hereinafter, “Ha”), amended the bylaws of KAFLA unlawfully while violating Sections 5150 (a) and 5150 (b) of the Code and continued another term as the president by using the unlawfully amended bylaws. And Plaintiff Bae and other Plaintiffs filed the complaint of BC275912 in about June of 2002, and Plaintiffs won the permanent injunction against Ha and KAFLA through Judge Recana. However, this case was remanded by the Appellate Court and it was judged against Plaintiffs on August 30, 2005 by Judge Freeman. Nevertheless, it has been appealed and this case is still undecided and pending in the California court system.
10. On about April of 2005, Plaintiff found the newly amended bylaws of KAFLA as seen in the Korean part of Exhibit 1, which was amended by Defendants Lee and KAFLA in about July of 2004. For convenience, it will be called as “the 2004 bylaws”. Exhibit 1 shows both Korean original and translated English version. Exhibit 2 attached hereto and made part of this application is a copy of the 1999 Bylaws with translated English version.
11. Plaintiff found that one of the critical article, Article 17, was amended from “a revision of the Bylaws shall require favorable votes from two thirds of the registered members” to “a revision of the Bylaws shall require favorable votes from two thirds of the registered directors”. This amendment clearly violates not only Section 5150(b) but also Section 5150(a) of the Code. But at this time, it violates Section 5150(b) regardless violating Section 5150(a).
12. 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).
13. 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 KAFLA. 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 like Secretary of the State and Secretary of Defense and Secretary of Commerce and so on, figuratively.
14. Therefore, the amendment of Bylaw of KAFLA shall be based on Section 5150 (b). Regardless of the actual 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: …
15. According to this Section of the Code, Article 21 of the 1999 Bylaws complies with the California law. Article 21 states, “Revision of the Bylaws shall require favorable votes from two thirds of the registered members.”
16. On the contrary, if and only if the bylaws of any non-profit organization for the public benefits like KAFLA has an explicit statement, “Revision of the Bylaws shall require favorable votes from two thirds of the registered directors,” 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; …
17. Another critical part among the amendments by Defendants in 2004 is the amendment of Article 20 Paragraph 1 of the 1999 bylaws, which states: “Annual Meeting: The Annual Meeting shall be called by the new President every two years between July 1 and July 30 to examine and resolve important matters, including revisions of the Bylaws and the Election Administration Rules, organization of the Chairman’s Group, deciding the Board of Directors fee, and examining the business plan and the budget.”
18. On the other hand, the above paragraph was amended in the 2004 bylaws as: “Annual Meeting: The newly appointed directors for the Annual Meeting shall be called by the new President every two years between July 1 and July 31 to examine and resolve important matters, including revisions of the Bylaws and the Election Administration Rules, organization of the Chairman’s Group, deciding the Board of Directors fee, and examining the business plan and the budget. Nevertheless, the revision of the bylaws can be moved and deliberated in the annual meeting only, and the revision of the bylaws cannot be moved and deliberated in the monthly meeting.”
19. The directors meetings are titled as so, as seen in Paragraphs 2 and 3 of Article 16. The title of Paragraph 1 was not and is not “Annual directors meeting”. It is clear that this meeting is not a directors meeting as shown in the title itself, and this should not be the third kind of directors meeting.
20. The title of the meeting of Article 16 Paragraph 1 even in the 2004 bylaws is not a directors meeting either. The directors in 2004 amended and added the contents that paragraph, but they forgot to amend the title. Hence, the contents do not match with the title. The directors amended to “The newly appointed directors for the Annual Meeting shall be called by the new President…” from “The Annual Meeting shall be called by the new President…” so that this annual meeting becomes the third kind of directors meeting. Further, the directors (not the members) added, “Nevertheless, the revision of the bylaws can be moved and deliberated in the annual meeting only, and the revision of the bylaws cannot be moved and deliberated in the monthly meeting.” This amendment looks very awkward and illogical.
21. The directors in 2004 seemed to amend it in an attempt to justify their amendment of Article 17, because Article 20 Paragraph 1 in the 1999 bylaws is contradictory to Article 17 in the 2004 bylaws otherwise. In other words, the directors of KAFLA should amend both provisions in an attempt to take the voting right to amend the bylaws of a public benefit non-profit organization from the members perfectly. Of course, it is unlawful and violates both Section 5150(a) as well as 5150(b) of the Code. And this amendment is against the basic democratic principle, “KAFLA of the members by the members for the members”. Worsely, they were not perfect and they forgot to amend the title, since the title still does not indicate it is a kind of directors meeting.
22. According to Plaintiff’s information and belief, during the term of the current president of KAFLA, Lee, in the regular meeting of the board of directors, about in July of 2004, the bylaws were amended without asking the approval of the members of KAFLA. 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” from “2/3 votes of registered members.”
23. This form of amendment of KAFLA bylaws by the directors not by the members violates the Section 5150(b) of the Code, according to Section 21 of the 1999 bylaws.
24. Moreover, the directors took the voting right from the members with their own resolution without asking the opinion of the members who are being deprived of the voting right to amend the bylaws. Now, by this amendment, Defendants KAFLA and Yong Tae Lee materially and adversely affected the rights, privileges, preferences, restrictions or conditions of the members of KAFLA in a more formal fashion. Of course, all of these amendments violate Section 5150(a) of the Code as well as Section 5150(b).
25. KAFLA continues to govern in accordance with the unlawfully amended Bylaws, and refuses to allow its members the chance to vote on this issue.
26. The directors of KAFLA under President Yong Tae Lee also amended other provisions of the bylaws.
27. Hereby, Plaintiff found some trends in these amendments. Some of the amended provisions strengthened the power of the directors and/or weakened the right of the members. For example, Article 10 Paragraph 1, Article 21, Article 25 strengthened the power of the directors through resolution of the board of directors or recommendation of the board of directors.
28. Another trait is that the 2004 bylaws emphasize the annual directors meeting (though they forgot to change the title of the meeting) a lot more as seen in Article 20 and Article 21. In this way, they tried to strengthen the role of the annual directors meeting through which they can even amend the bylaws exclusively.
29. To strengthen the authority of directors also mean to strengthen the authority of the President of KAFLA, because the directors are appointed by the President. It also implies that the authority of the general members was relatively weakened.
30. As a conclusion, the 2004 bylaws amendment materially and adversely affected the rights of voting and being voted, privileges, preferences, restrictions or conditions of the members of KAFLA without participation or approval of the members, and thus it violates Section 5150 (a) of the Code per se, regardless of violating Section 5150 (b).
31. Plaintiffs have continually requested that Defendants and each of them, cease their activity as each and every action of Defendants and each of them, are illegal actions. Defendants and each of them, have refused and still refuses to refrain from their conduct.
32. Defendants’ wrongful conduct, unless and enjoined and restrained by order of this court will cause great and irreparable injury to Plaintiffs in that Plaintiffs will not be allowed to have a fair and equitable election, and not be able to conduct the business of the KAFLA.
33. Plaintiffs have no other adequate remedy at law for the injuries currently being suffered in that, unless restrained by this court, the actions of the KAFLA in a manner consistent with its stated objectives and Bylaws and it will be impossible for Plaintiffs to determine the precise amount of damage that it will suffer if Defendants’ conduct is not restrained, and Plaintiffs will be forced to institute a multiplicity of suits.
WHEREFORE, Plaintiff prays judgment against Defendants, and each of them as follows:
3. For an order requiring Defendants to show cause, if any they have, why they should not be enjoined as set forth in this complaint, during the pendency of this action;
4. For a temporary restraining order, a preliminary injunction, and permanent injunction, all enjoining Defendants, and each of them, and their agents, servants, and employees, and all persons acting under, in connection with, or for them:
a. From calling or conducting any meetings of Defendant KAFLA;
b. From installing as President, remaining in, or allowing Defendant Lee to remain in office as President of KAFLA;
c. To deliver all assets, books, and records of Defendant KAFLA, including but not limited to the seal of KAFLA, the records, minutes, corporate books, financial statements and files to Plaintiffs; and
d. From issuing any statements or announcements regarding any related business of Defendant KAFLA; and
5. Ordering all enjoining defendants, and each of them, and their agents, servants, and employees, and all persons acting under, in concert with, or for them to:
a. Remove Defendant Lee as President of KAFLA;
b. Remove the amendments to the 2004 bylaws;
c. Restore the bylaws of KAFLA to the 1999 bylaws;
d. Hold a new re-election of President of KAFLA by the restored bylaw within a reasonable period; and
e. Execute the 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.
6. For costs of suit herein incurred; and
7. For such other and further relieves as the court may deem proper.
Dated: September 30, 2005
Respectively submitted,
________________________
Simon Bae
Plaintiff in pro per
VERIFICATION
I, Simon Bae, declare:
I am individually and as an association, Plaintiffs in the above-entitled action, and I have been authorized to make this verification on its behalf.
I have read the foregoing complaint and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe them to be true.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed at Los Angeles, California on September 30, 2005.
_______________________________
By and for: Simon Bae, Publisher
Personally and for the Korea Unity
Press of U.S.A.
DECLARATIION OF SIMON BAE
I, Simon Bae, declare:
1. I am one of the plaintiffs in this action and make this declaration in support of this application. I am also the Publisher of the Korea Unity Press, U.S.A.
2. I am a member of the Korean Federation of Los Angeles, Inc. (hereinafter “KAFLA”).
3. KAFLA was incorporated in 1962 in California. Its Bylaws state that it is a nonprofit corporation.
4. The Bylaws had not been amended or altered since 1962 until 1999 in the way of violating Sections 5150 (a) and 5150 (b) of the Code of Non-profit Corporate Laws (hereinafter, “the Code”).
5. In 2000, immediately former president of KAFLA, Kee Hwan Ha (hereinafter, “Ha”), amended the bylaws of KAFLA unlawfully while violating Sections 5150 (a) and 5150 (b) of the Code and continued another term as the president by using the unlawfully amended bylaws. And I filed the complaint of BC275912 in about June of 2002, and I won the permanent injunction against Ha and KAFLA through Judge Recana. However, this case was remanded by the Appellate Court and it was found against me on August 30, 2005 by Judge Freeman. Nevertheless, it has been appealed and this case is still undecided and pending in the California court system.
6. I wanted to include another and more blatant amendment by Defendant Lee in the above case. However, I realized that the new facts in 2004 could not be included in the existing case filed in 2002. That is why I should file a separate case.
7. On about April of 2005, I found the newly amended bylaws of KAFLA as seen in the Korean part of Exhibit 1, which was amended by Defendants Lee and KAFLA in about July of 2004. For convenience, he calls it as “the 2004 bylaws”. Exhibit 1 shows both Korean original and English translated version.
8. Exhibit 2 attached hereto and made part of this application is a copy of the 1999 Bylaws with English translated version.
9. I found that one of the critical article, Article 17, was amended from “a revision of the Bylaws shall require favorable votes from two thirds of the registered members” to “a revision of the Bylaws shall require favorable votes from two thirds of the registered directors”. This amendment clearly violates not only Section 5150(b) but also Section 5150(a) of the Code. But at this time, it violates Section 5150(b) regardless violating Section 5150(a).
10. By help of Jin Ree, a California State certified court interpreter, I found other amended parts of the bylaws.
11. According to my information and belief, during the term of the current president of KAFLA, Lee, in the regular meeting of the board of directors, about in July of 2004, the bylaws was amended 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” from “2/3 votes of registered members.” Now, by this amendment, Defendants KAFLA and Yong Tae Lee materially and adversely affected the rights, privileges, preferences, restrictions or conditions of the members of KAFLA in a more formal fashion. Of course, all of these amendments violate Section 5150(b) and Section 5150(a) of the Code, and are unlawful.
12. Another critical part among them is the amendment of Article 16 Paragraph 1, which states: “Annual Meeting: The Annual Meeting shall be called by the new President every two years between July 1 and July 30 to examine and resolve important matters, including revisions of the Bylaws and the Election Administration Rules, organization of the Chairman’s Group, deciding the Board of Directors fee, and examining the business plan and the budget.”
13. On the other hand, the above paragraph was amended in the 2004 bylaws as: “Annual Meeting: The newly appointed directors for the Annual Meeting shall be called by the new President every two years between July 1 and July 31 to examine and resolve important matters, including revisions of the Bylaws and the Election Administration Rules, organization of the Chairman’s Group, deciding the Board of Directors fee, and examining the business plan and the budget. Nevertheless, the revision of the bylaws can be moved and deliberated in the annual meeting only, and the revision of the bylaws cannot be moved and deliberated in the monthly meeting.”
14. The directors meetings are titled as so, as seen in Paragraphs 2 and 3 of Article 16. The title of Paragraph 1 was not and is not “Annual directors meeting”. It is clear that this meeting is not a directors meeting as shown in the title itself, and this should not be the third kind of directors meeting.
15. The title of the meeting of Article 16 Paragraph 1 even in the 2004 bylaws is not a directors meeting either. The directors in 2004 amended and added the contents that paragraph, but they forgot to amend the title. Hence, the contents do not match with the title. The directors amended to “The newly appointed directors for the Annual Meeting shall be called by the new President…” from “The Annual Meeting shall be called by the new President…” so that this annual meeting becomes the 3rd kind of directors meeting. Further, the directors added, “Nevertheless, the revision of the bylaws can be moved and deliberated in the annual meeting only, and the revision of the bylaws cannot be moved and deliberated in the monthly meeting.” This amendment looks very awkward and illogical.
16. The directors in 2004 seemed to amend it in an attempt to justify their amendment of Article 17, because Article 16 Paragraph 1 in the 2000 bylaws is contradictory to Article 17 in the 2004 bylaws otherwise. In other words, the directors of KAFLA should amend both provisions in an attempt to take the voting right to amend the bylaws of a public benefit non-profit organization from the members perfectly. Of course, it is unlawful and violates both Section 5150(a) as well as 5150(b) of the Code. And this amendment is against the basic democratic principle, “KAFLA of the members by the members for the members”. Worsely, they were not perfect and they forgot to amend the title, since the title still does not indicate it is a kind of directors meeting.
17. The directors took the voting right from the members with their own resolution without asking the opinion of the members who are being deprived of the voting right to amend the bylaws. This is an unlawful coup de-tat by the President and directors against the members of KAFLA, and this coup took place relatively secretly.
18. As a member, I was never given notice or allowed to cast a vote as to any amendments in the Bylaws.
19. To the best of my knowledge, no other member was given the opportunity to vote on amending the Bylaws.
20. The 2004 bylaws amendment materially and adversely affected the rights of voting and being voted, privileges, preferences, restrictions or conditions of the members of KAFLA without participation or approval of the members, and thus it violates Section 5150 (a).
21. KAFLA continues to govern in accordance with the unlawfully amended Bylaws, and refuses to allow its members the chance to vote on this issue.
22. Furthermore, KAFLA did not have an election for President in 2004 year at all. The stated reason was that there was only one candidate, Defendant Lee.
23. The directors of KAFLA under President Yong Tae Lee also amended other provisions of the bylaws.
24. Hereby, Plaintiff found some trends in these amendments. Some of the amended provisions strengthened the power of the directors and/or weakened the right of the members. For example, Article 10 Paragraph 1, Article 21, Article 25 strengthened the power of the directors through resolution of the board of directors or recommendation of the board of directors.
25. Another trait is that the 2004 bylaws emphasize the annual directors meeting (though they forgot to change the title of the meeting) a lot more as seen in Article 20, Article 21. In this way, they tried to strengthen the role of the annual directors meeting through which they can even amend the bylaws uniquely.
26. To strengthen the authority of directors also mean to strengthen the authority of the President of KAFLA, because the directors are appointed by the President. It also implies that the authority of the general members was relatively weakened.
27. All of the other potential candidates were removed or disqualified by KAFLA.
28. Defendants and each of them must be restrained from this action, or calling or conducting any business on behalf of KAFLA until a new election under the lawful Bylaws can take place.
29. Defendants should not be allowed to call any meetings or there will be great damage to KAFLA.
30. Unless a temporary restraining order is granted, great and irreparable injury will result to the Plaintiffs in that our right to a fair election and democratic process will be sacrificed to the unlawful actions of Defendants. Furthermore, it will be impossible to quantify our damages as the Defendants will continue to govern KAFLA according to an unlawfully amended set of Bylaws.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated: September 28, 2005
________________________
Simon Bae
Simon Bae, publisher and editor
Korea Unity Press, U.S.A.
3010 Wilshire Blvd.
Los Angeles, California 90010
Telephone: (213) 305-7100
Plaintiff in pro per
SUPERIOR COUNRT OF CALIFORNIA
COUNTY OF LOS ANGELES
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 )
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) Case No.: BC275912
NOTICE OF APPEAL
TO THE CLERK OF THE COURT AND ANY OTHER RELEVANT PERSON:
NOTICE IS GIVEN that Plaintiffs SIMON BAE, AND MEMBERS OF THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. SIMILARLY SITUATED hereby appeal from JUDGMENT dated August 30, 2005.
DATED: September 26, 2005 Respectfully submitted,
By: ______________________________
Simon Bae
Plaintiff in pro per
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