------------------------------
TABLE OF CONTENTS
Page
I. STATEMENT OF THE CASE ……………………………………………......1
II. APPELLABILITY AND STANDARD OF REVIEW ……………………….1
II. STATEMENT OF FACTS ……………………………………………………2
III. DISCUSSION ………………………………………………………………..4
1. DEFENDANT FAILED TO SHOW THAT THE DIRECTORS MEETING HAD THE RIGHT TO REVISE THE BYLAWS. RATHER, EVIDENCE SHOWS THAT THE BOARD COULD NOT REVISE THE BYLAWS. ……………………………………….......5
(1) Even According to Defendant’s Translation, It Is Clear That the 1999 Bylaws Gave the Right to Revise the Bylaws Not to the Directors Meeting but the Biannual Meeting. …………..5
(2) The Languages of the 1982 Bylaws and the 1999 Bylaws Clearly Establish That the Underlying Intent of the 1999 Revision Was to Divest the Right to Revise the Bylaws from the Directors Meeting. ……………………………………….6
(3) Even According to Defendant’s Translation, It Is Clear That the 1999 Bylaws Required Two Thirds of Votes of the “Registered Members” for Revision of the Bylaws. ….……..6
(4) Under California Law, Express Terms Shall Control Course of Performance. ……………………………….………………..8
(5) The 1982 Bylaws Did Not Govern the Revision of the Bylaws in 2000. ………………………………………………….…..9
TABLE OF CONTENTS
(continued)
Page
(6) Defendant’s Attack on the Trustworthiness of Plaintiff’s Translation of the 1999 Bylaws Has No Ground. ………….10
2. GRANTING ARGUENDO THAT THE DIRECTORS MEETING HAD THE RIGHT TO REVISE THE BYLAWS, DEFENDANT FAILED TO PRESENT SUFFICIENT EVIDENCE SUPPORTING THAT THE DIRECTORS MEETING IN 2000 ACQUIRED TWO THIRDS OF DIRECTORS’ VOTES. ………………………..…….11
3. THE INVALID 2000 REVISION HAS SERIOUSLY HARMED AND WILL SERIOUSLY HARM THE RIGHTS AND INTERESTS OF KAFLA AND ITS MEMBERS. ……………………………………12
(1) The Second Term of Kee Whan Ha As the President Is Ineffective Because the Invalid 2000 Bylaws Could Not Justify His Re-election. Further, If the Current System Is Not Corrected, the Second Term of Any Other Re-elected President in the Future Would Be Ineffective. ……………..13
(2) Under the Invalid 2000 Revision, Ineligible Persons Could Be Elected Or Appointed As an Officer Or a Director. Therefore, the Effectiveness of Their Official Activities Would Be Seriously Questioned. ……………………….……..………13
(3) Transparency and Reliability of KAFLA’s Accounting System Have Been and Will Be Seriously Harmed. ………………..14
TABLE OF CONTENTS
(continued)
Page
(4) The Legitimacy of KAFLA’s Official Activities Based on the Invalid 2000 Bylaws Have Been And Will Be in Serious Question. Therefore, If Not Corrected, Substantial Part of KAFLA’s Official Activities Could Again Be Litigated. …..14
(5) Plaintiff as a Member Had to Spend Insurmountable Effort, Time And Money, And Suffer Emotional Distress, In His Efforts to Minimize Impairment of the Rights and Interests of KAFLA and Its Members. ..……….…........................…….15
(6) The Circumstances And Evidences Establish That Exemplary Damages Should Be Given. ………………………………..15
IV. CONCLUSION ……………………………………………………………..17
TABLE OF AUTHORITIES
Page
CASES
Los Angeles County Office of the Dist. Attorney v. Civil Serv. Comm’n,
55 Cal. App. 4th 187, 198-99 (1997) ………………………………….1, 2
Am. Ctr. Educ. v. Cavnar,
26 Cal. App. 3d 26, 32 (1972) …………………………………………..8
STATUTES
Cal. Code Civ. Proc:
§ 902 ……………………………………………………………………1
§ 904.1 ………………………………………………………………….1
§ 4 ………………………………………………………………………8
§ 16 ……………………………………………………………………..8
Cal. U. Com. Code:
§ 2208 …………………………………………………………………..8
Cal. Civ. Code:
§ 3294(a) ………………………………………………………………15
I. STATEMENT OF THE CASE
Plaintiff is a member of a non-profit organization, Korean American Federation of Los Angeles (“KAFLA”). In 2000, KAFLA’s board of directors revised the bylaws in violation of the 1999 bylaws. The 2000 revision of bylaws was invalid because (1) the board of directors did not have the right to amend bylaws under the 1999 bylaws and (2) granting arguendo the board had such right, the directors meeting failed to acquire two thirds of the directors’ votes. Because of the invalid revision of the bylaws, KAFLA and its members including Plaintiff have been suffering serious damages. Accordingly, Plaintiff has sought remedies for any damages caused by the violation and a declaratory judgment that KAFLA appropriately correct this matter.
II. APPELLABILITY AND STANDARD OF REVIEW
The trial court made a final decision on the merit in favor of Defendant. In result, Plaintiff has been aggrieved because he could not get appropriate remedies for the harms that he has been suffering as a member of KAFLA. Therefore, pursuant to California Code of Civil Procedure § 902 and § 904.1, Plaintiff decided to appeal. Cal. Code Civ. Proc. §§ 902, 904.1 (West 2006).
The key issue was whether the revision of the bylaws by the directors meeting in 2000 was valid. For that, the trial court had two factual questions: (1) whether the directors’ meeting had the right to revise the bylaws under the 1999 bylaws and (2) whether, granting arguendo the board had such right, the directors’ meeting acquired two thirds of the directors’ votes. The court decided in favor of Defendant. Therefore, the standard of review on appeal is whether there was substantial evidence supporting the trial court’s decision. Los Angeles County Office of the Dist. Attorney v. Civil Serv. Comm’n, 55 Cal. App. 4th 187, 198-99 (1997). Substantial evidence is not synonymous with any evidence. Id. Rather, it must be reasonable, credible, and of solid value. Id. As discussed below, Defendant failed to present substantial evidence at the trial.
II. STATEMENT OF FACTS
KAFLA formed in 1962. (Clerk’s Transcript 43) It became incorporated in 1982 as a non-profit public benefit corporation under the name of Korean Federation of Los Angeles, and article 19 of the 1982 bylaws provide that the board of directors had the right to amend the bylaws. (A true and correct copy of the 1982 bylaws is attached as Exhibit 1)
In April 2000, Kee Whan Ha was elected as the President. Ha formed a bylaws revision committee chaired by Grace Han, and the committee proposed a number of changes to the bylaws and the election procedures. On June 12, 2000, the board of directors passed the proposals. Defendant presented as evidence the Declarations of Kee Whan Ha, Francis Hur and Grace Han stating that there were twenty six (26) directors present, three (3) directors authorized proxies, and thirteen (13) directors voted via fax. However, Grace Han stated that she has never signed on the declaration submitted by Ha under the name of Grace Han. (CT 40) Further, she stated that there were only eighteen (18) to twenty (20) directors present at the meeting. (A true and correct copy of Grace Han’s Statement is attached as Exhibit 2)
According to Defendant’s translation, section 20 of the 1999 bylaws provides that amendments of the bylaws shall be resolved by a “Biannual meeting” which “the newly elected President” convenes “either on April 1st or on 20th every other year.” (A true and correct copy of Defendant’s Translation of the 1999 bylaws is attached as Exhibit 3) It also provides that Regular Board meetings and Special Board meetings shall be convened by the Chairperson, not the President. (Exhibit 3) Section 21 of the 1999 bylaws provides that two thirds of votes of “those registered” are necessary in order to revise the bylaws. (Exhibit 3) According to Plaintiff’s translation, section 21 of the 1999 bylaws provides that two thirds of “registered members’ votes” are required. (CT 46)
The 2000 revision made substantial changes. (CT 52-54; Exhibit 3) Section 9 of the 1999 bylaws prohibited any person from serving as the President more than once. (Exhibit 3) The 2000 revision removed this prohibition. (CT 53) Section 8 and 14 of the 1999 bylaws provide that an officer or a director should not have any criminal record of imprisonment (a felony prior, or misdemeanor prior in unethical, immoral conducts) or interdiction. (Exhibit 3) The 2000 revision removed these requirements. (CT 52-53) Section 31 of the 1999 bylaws provides that one of the two auditors must be a certified public accountant, the other must be selected among respected members within the Korean community, the two auditors will audit KAFLA’s financial statements once a year, and the audit results must be reported to the board of directors and published in a daily newspaper. (Exhibit 3) The 2000 revision removed these requirements. (CT 54)
Based on the 2000 revision, Ha could serve his second term from 2002 to 2004 without election because Ha was the sole candidate in 2002 election. During Ha’s second term, there was no detailed audit performed by a certified public accountant, and any audit result has not been published in a daily newspaper. (A true and correct copy of an audit report by Kee Whan Ha’s Financial Report is attached as Exhibit 4) The one-page financial report presented at the end of Ha’s second term was not even signed by auditors. (Exhibit 4) Even these days, there is no real audit because the audit was performed without disclosure of detailed information and documents. (A true and correct copy of an audit report by CPA Steve Cha is attached as Exhibit 5) In 2004, before the end of his second term, Ha again revised the bylaws through a directors meeting. (CT 268)
In June 2002, Plaintiff, Simon Bae sued against KAFLA and Kee Whan Ha, filing an original complaint with the Superior Court of Los Angeles County. (CT 14) The trial court decided in favor of Plaintiff. (CT 8) In January 2003, Defendant appealed. (CT 8) In March 2005, the appellate court reversed the trial court’s decision and remanded the case. The trial court reviewed whether the 2000 revision was effective. (CT 217) In August 2005, the trial court decided in favor of Defendant. (CT 3) In September 2005, Plaintiff appealed. (CT 3)
III. DISCUSSION
Defendant failed to present sufficient evidence supporting that (1) the directors meeting had the right to revise the bylaws in 2000 and (2) granting arguendo that the directors meeting had the right to revise the bylaws, the directors meeting actually acquired the number of votes necessary for the revision. Rather, evidences have shown that the directors meeting did not have the right to revise the bylaws, the biannual meeting had the right to revise, and two thirds of registered members’ votes were required to revise the bylaws.
1. DEFENDANT FAILED TO SHOW THAT THE DIRECTORS MEETING HAD THE RIGHT TO REVISE THE BYLAWS. RATHER, EVIDENCE SHOWS THAT THE BOARD COULD NOT REVISE THE BYLAWS.
(1) Even According to Defendant’s Translation, It Is Clear That the 1999 Bylaws Gave the Right to Revise the Bylaws Not to the Directors Meeting but the Biannual Meeting.
Defendant argued that 1999 bylaws conferred the right to revise the bylaws on the board of directors. For this contention, Defendant presented as evidences its translation of the 1999 bylaws. However, even according to Defendant’s translation, section 20 of the 1999 Bylaws expressly and unambiguously provides that amendments of the bylaws shall be resolved by a “Biannual meeting” which “the newly elected President” convenes “either on April 1st or on 20th every other year.” It also provides that “Regular Board meeting” and “Special Board meeting” shall be convened by the Chairperson, not the President. Clearly, as Judge Recana found at the first trial, a biannual meeting is different from a regular or special board meeting.
Here, the meeting in question was not a biannual meeting because it was neither held in April nor convened by the President. Rather, it was obviously a directors’ meeting because it was convened by the Chairperson who could convene not a biannual meeting but only a regular or special directors meeting. Therefore, it is obvious that, even under Defendant’s translation, the 2000 revision violated the 1999 bylaws because it was made by a directors’ meeting convened by the Chairperson in June while the 1999 bylaws conferred the right to revise the bylaws on the biannual meeting which should be convened by the newly elected President and held in April.
(2) The Languages of the 1982 Bylaws and the 1999 Bylaws Clearly Establish That the Underlying Intent of the 1999 Revision Was to Divest the Right to Revise the Bylaws from the Directors Meeting.
Defendant’s evidences, the 1982 bylaws and the translated 1999 bylaws, clearly show that the underlying intent of the 1999 revision was to divest the directors meeting of the right to revise the bylaws. First, the 1982 bylaws specified only regular and temporary directors meetings in article 18 while the 1999 bylaws provided four different types of meetings in section 20. Second, article 9.1 of the 1982 bylaws expressly provided that the directors meeting had the right to revise the bylaws while section 20.1 of the 1999 bylaws expressly and unambiguously provided that the biannual meeting had the right to revise. Third, not surprisingly, article 20.2 of the 1982 bylaws required the Chairman, not the President, to convene directors meetings while article 20.1 of the 1999 bylaws provided the President should convene biannual meetings.
These obviously different contexts and languages clearly show that the 1982 bylaws and the 1999 bylaws conferred the right to revise the bylaws on two different bodies: directors meetings and biannual meetings. If they did not, there is no reason for the 1999 bylaws to create new meetings by providing clearly different rules and languages. Accordingly, the directors meeting did not have the right to revise the bylaws in 2000.
(3) Even According to Defendant’s Translation, It Is Clear That the 1999 Bylaws Required Two Thirds of the Votes of “Registered Members” for Revision of the Bylaws.
Defendant’s evidence, the translation of the 1999 bylaws, establishes that two thirds of not directors’ votes but registered members’ votes were necessary for the revision of the bylaws. First, section 21 of the 1999 bylaws, according to Defendant’s translation, provides that amendment of bylaws requires more than two thirds of “those registered.” As Judge Recana found at the first trial, the word “registered” does not apply to directors because they are not registered but appointed or designated. Further, the word does not apply to officers either, because the officers are elected or appointed. Therefore, it is obvious that what the 1999 bylaws meant by “registered those” were neither directors nor officers. The only concept which fits to the language of “registered” is the “members.”
Second, section 21 of the 1999 bylaws provides that a biannual meeting will be held “every other year” and convened by the “newly elected President” in “April right after the election.” These languages clearly show the 1999 bylaws intended to put limitations on time and manner of the revision. Therefore, the bylaws could be revised only in April every other year right after the Presidential election. Right after the election, it would be so clear who the registered members are because members should register for the Presidential election. Further, the revision of the bylaws are allowed only once out of two years because, as Defendant argues, it would be costly to have registered members vote on proposed revisions especially in any year in which KAFLA did not have any election.
Third, to the contrary of Defendant’s allegation, there was the concept of “registered members” even in 1982. Article 9.2 of the 1982 bylaws required members to pay “the membership dues.” From this, it can be reasonably inferred that, at least, KAFLA tried to collect the membership dues for which members would need to be registered. Accordingly, all these languages and circumstances clearly support that the directors meeting in 2000 did not have the right to revise the bylaws and that the 1999 bylaws intended to confer the right to revise the bylaws on registered members.
(4) Under California Law, Express Terms Shall Control Course of Performance.
Defendant alleged that there was no registered member and the revisions of the bylaws have been made by the director’s meeting. However, these allegations can hardly support Defendant’s contention that the directors meeting had the right to revise the bylaws in 2000. Under California law, bylaws are to be construed according to the general rules governing the construction of statutes and contracts. Am. Ctr. Educ. v. Cavnar, 26 Cal. App. 3d 26, 32 (1972).
Under California Code of Civil Procedure, the statutes are to be liberally construed with a view to effect its objects and to promote justice, and words and phrases are construed according to the context and the approved usage of the language. Cal. Code Civ. Proc. §§ 4, 16 (West 2006). Further, California Uniform Commercial Code provides that express terms shall control course of performance, course of dealing and usage of trade. Cal. U. Com. Code §2208 (West 2006). Therefore, for construction of express terms of bylaws, it is required to consider its objects, justice, context, approved usage of language, and the express terms should control any course of performance.
As discussed above, the comparative analysis of the 1982 bylaws and the 1999 bylaws clearly shows the underlying intent to divest the right to revise the bylaws from the directors meeting and thereby to promote members’ participation in KAFLA’s activities, which would serve for the promotion of democracy and justice. Further, as discussed above, the context and the plain meaning of the languages clearly establish that the 1999 bylaws gave the right to revise the bylaws not to the directors meeting but the biannual meeting and the revision required two thirds of registered members’ votes. Moreover, as discussed above, there was the concept of “registered members” even in 1982 because article 9.2 of the 1982 bylaws shows KAFLA tried to collect the membership dues which would require the registration of members.
In result, it is obvious that the bylaws expressly gave the right to revise the bylaws to the registered members not the directors meeting. Accordingly, these express terms should control any course of performance alleged by Defendant.
(5) The 1982 Bylaws Did Not Govern the Revision of the Bylaws in 2000.
Defendant contended that, if the 1999 bylaws did not authorize the board to revise the bylaws, the 1982 bylaws should govern the 2000 revision because all bylaws revisions were made by directors’ meetings in the past. For this contention, Defendant submitted the 1982 bylaws which expressly provided that the directors’ meeting had the right to revise the bylaws by two thirds of Directors’ votes.
However, this argument has a clear error in itself. Under the 1982 bylaws, the directors’ meeting had the right to revise the bylaws. Therefore, the revision of the 1982 bylaws made by the directors meeting would be effective because it meets the requirements for the revision under the 1982 bylaws. Until any subsequent revised bylaws deprive the directors meeting of the right to revise the bylaws, any subsequent revision made by directors meetings would be effective. In 2000, KAFLA had the 1999 bylaws which expressly and unambiguously provided that the directors meeting did not have the right to revise the bylaws. Therefore, the directors meeting could not revise the bylaws. Whether or not there was any bylaws prior to the 1999 bylaws, which deprived the directors meeting of the right to revise, the 2000 revision is always invalid because the directors meeting did not have the right to revise anyways.
(6) Defendant’s Attack on the Trustworthiness of Plaintiff’s Translation of the 1999 Bylaws Had No Ground.
Defendant contended that Plaintiff’s translation of the 1999 bylaws was not trustworthy but failed to present any substantial evidence in support of such contention. First, Defendant pointed out that Plaintiff’s translation amounted twenty-four (24) pages while the original version of the 1999 bylaws written in Korean consisted of just four (4) pages. It was a frivolous and misleading contention because, as it was obvious from what the translator’s declaration said, Plaintiff submitted the translations of not only the 1999 bylaws but also the KAFLA rules of election and an agreement. (CT 42) Therefore, this misleading contention can never be reasonably understandable because Defendant would have never made such a serious mistake had Defendant read Plaintiff’s translation even just once. To the contrary of Defendant’s groundless allegation, Plaintiff’s translation of the 1999 bylaws amounts only five pages including the cover page. (CT 43-47)
Second, Defendant alleged that Plaintiff’s translation lacked the appropriate certification. For the allegation, Defendant pointed out that the attached copy of Plaintiff’s translation to his opening brief submitted for the first appeal did not include the translator’s certification. Again, this was an unreasonably frivolous contention. During the first trial, the certification has been already given to Defendant, and Defendant had numerous opportunities to review the certification and the translation. Therefore, it must have been obvious to Defendant that Plaintiff’s translation was duly certified. In spite of the circumstances supporting Defendant’s actual knowledge, Defendant again made the frivolous contentions during the second trial.
2. GRANTING ARGUENDO THAT THE DIRECTORS MEETING HAD THE RIGHT TO REVISE THE BYLAWS, DEFENDANT FAILED TO PRESENT SUFFICIENT EVIDENCE SUPPORTING THAT THE DIRECTORS MEETING IN 2000 ACQUIRED TWO THIRDS OF DIRECTORS’ VOTES.
Defendant alleged that twenty six (26) directors were present at the meeting in 2000, three (3) directors authorized proxies, and thirteen (13) directors voted via fax. However, Defendant failed to present any trustworthy evidence. This issue could have been resolved so clear and easy had Defendant submitted the copies of the proxy documents signed by three directors and the copies of thirteen directors’ votes delivered via fax. But Defendant failed to present them.
Rather, Defendant presented only three (3) declarations (Kee Whan Ha, Francis Hur, and Grace Han) and one-page attendance record for the meeting which did not have any signature of any person. These evidences failed to show substantial ground for Defendant’s allegation.
First, Grace Han’s declaration is not trustworthy because Han herself claims her signature was forged. She states that she has never signed on the declaration submitted by Defendant under her name. Therefore, there has been a serious doubt about the genuineness of Defendant’s important evidence. Without Grace Han’s declaration, Defendant could present only the declarations of Defendant himself and his closest colleague (Hur) who used to be the executive officer in 2000, and the one-page attendance record with no signature of any person.
Second, to the contrary of the declarations of Ha and Hur, Han states only eighteen (18) to twenty (20) directors were present at the director’s meeting in 2000. This again raises the trustworthiness issue of Defendant and Sur’s declarations which state twenty six (26) directors were present.
Under the circumstances, the only evidence left is just one-page attendance record with no signature of any person, which can hardly be a substantial evidence to support Defendant’s allegation. (Exhibit 6) In result, Defendant’s evidences lacked trustworthiness while other evidences support that the directors’ meeting in 2000 actually failed to acquire two thirds of directors’ votes.
3. THE INVALID 2000 REVISION HAS SERIOUSLY HARMED AND WILL SERIOUSLY HARM THE RIGHTS AND INTERESTS OF KAFLA AND ITS MEMBERS.
The 2000 revision of the bylaws made substantial changes. Even though the changes were invalid, substantial part of KAFLA’s activities has been based on the changes. In result, the rights and interests of KAFLA and its members have been seriously harmed. If not corrected, the current system will again seriously harm the interests and benefits of KAFLA and its members, which would subject KAFLA to potential litigations in the future.
At the time of filing his first complaint, Plaintiff as a member of KAFLA was concerned about the problems discussed below. That was why he sought the court’s orders enjoining Ha from beginning his second term as the President and the 2000 revision from being executed. After all, things have been happening as Plaintiff worried.
(1) The Second Term of Kee Whan Ha As the President Is Ineffective Because the Invalid 2000 Bylaws Could Not Justify His Re-election. Further, If the Current System Is Not Corrected, the Second Term of Any Other Re-elected President in the Future Would Be Ineffective.
In 2000, the directors meeting illegally changed section 9 of the 1999 bylaws which prohibits any person from serving as the President more than once. Not surprisingly, Kee Whan Ha was re-elected based on the invalid 2000 bylaws and served his second term as the President from 2002 to 2004. In result, KAFLA and its members had to have as the President Ha who was not eligible for the position, and the effectiveness of Ha’s official activities during his second term is seriously questioned. Further, if not corrected, the current system will repeat the same problems in the future.
(2) Under the Invalid 2000 Revision, Ineligible Persons Could Be Elected Or Appointed As an Officer Or a Director. Therefore, the Effectiveness of Their Official Activities Would Be Seriously Questioned.
Section 8 and 14 of the 1999 bylaws provide that an officer (including the President) or a director should not have any criminal record of imprisonment (a felony prior or misdemeanor prior in unethical, immoral conducts) or interdiction. However, the 2000 revision removed these requirements. Therefore, under the invalid revision, persons with criminal record of imprisonment or interdiction can become a President, any other officer or a director even though they are not eligible for those positions. In result, this again impairs KAFLA members’ rights and interests because they have to have ineligible person(s) as President, officer or director, and the effectiveness of such President, officer or director’s official activities would be seriously questioned.
(3) Transparency and Reliability of KAFLA’s Accounting System Have Been and Will Be Seriously Harmed.
Section 31 of the 1999 bylaws provides that (1) one of the two auditors must be a certified public accountant, (2) the other must be selected among respected members within the Korean community, (3) the two auditors will audit KAFLA’s financial statements once a year, and (4) the audit results must be reported to the board of directors and published in a daily newspaper. Such requirements were reasonably necessary to maintain the transparency and reliability of KAFLA’s activities. However, the invalid 2000 revision removed all of these requirements.
Not surprisingly again, there was no real audit during Ha’s second term, and the one-page financial report presented at the end of Ha’s second term was not even signed by auditors. (Exhibit 4) Even these days, there is no real audit because the audit was performed without disclosure of detailed information and documents. (Exhibit 5) Further, the audit result has never been published in any daily newspaper. In result, KAFLA members’ right to be appropriately reported has been and will be seriously impaired. Further, there is no real inspection of KAFLA’s earnings and expenditures, which would again seriously harm the financial interests of KAFLA and its members.
(4) The Legitimacy of KAFLA’s Official Activities Based on the Ineffective 2000 Bylaws Have Been And Will Be in Serious Question. Therefore, If Not Corrected, Substantial Part of KAFLA’s Official Activities Could Again Be Litigated.
Due to the above problems of the illegitimate officer/director(s) and any other KAFLA’s activities based on the invalid 2000 revision, in the past and the future, the effectiveness of substantial part of KAFLA’s activities would be seriously questioned. In such a case, all of the time, effort and money spent for such activities would be just a waste. In result, the rights and interests of KAFLA and its members would be seriously harmed.
Most of all, the members will suffer from the same harms if the problems of the current system are not corrected. Accordingly, in order to stop this vicious circle, KAFLA and its members need the court’s order to correct the matters discussed above.
(5) Plaintiff as a Member Had to Spend Insurmountable Effort, Time And Money And Suffer Emotional Distress, In His Efforts to Minimize Impairment of the Rights and Interests of KAFLA and Its Members.
Plaintiff as a member of KAFLA was concerned about the above problems at the time of filing his first complaint. In his efforts to minimize the impairment of the rights and interests of KAFLA and its members, Plaintiff has had to painstakingly spend a lot of effort, time and money and suffer pain, anxiety, inconvenience, annoyance and other emotional distress.
(6) The Circumstances And Evidences Establish That Exemplary Damages Should Be Given.
Section 3294 of the California Civil Code provides that the plaintiff may recover exemplary damages where clear and convincing evidence shows that the defendant has been guilty of oppression, malice or fraud. Cal. Civ. Code 3294(a) (West 2006). Malice means despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights of others. Id. Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Id. The evidence and circumstances in the present case clearly establish malice and oppression because Defendant Ha willfully and consciously disregarded the rights of KAFLA and its members and thereby subject them to cruel and unjust hardship.
As obviously shown from the illegal changes, the 2000 revision was not intended to serve the interests of KAFLA and its members. Rather, as discussed above, they have not only impaired the interests of KAFLA and its members but also disserved democracy and justice. The invalid 2000 revision allowed ineligible persons to be elected or appointed as the President, an officer or a director. KAFLA members could not have any real access to the information about KAFLA’s earnings and expenditures because the invalid 2000 revision does not require any financial audit.
Not surprisingly, Ha was re-elected as the President in 2000 and served his second term without conducting any real financial audit. In result, substantial part of KAFLA’s official activities faces serious question about its effectiveness. All those problems were clearly and reasonably foreseeable at the time of the revision, and have been materialized exactly as foreseen.
Further, Ha deliberately violated the 1999 bylaws when he attempted to revise the bylaws in 2000 through the directors meeting. As discussed above, it was clear and obvious that the directors meeting did not have the right to revise the bylaws. The 1999 bylaws clearly and expressly provided that the biannual meeting, not the directors meeting, had the right to revise the bylaws, that the biannual meeting should be held in April right after the Presidential election, that the biannual meeting should be convened by the newly elected President, and that the revision requires two thirds of “registered” members’ votes, not “designated or appointed” directors.
However, in spite of all those clearly foreseeable problems, Ha as the President and a director attempted to revise the bylaws through the directors meeting, in violation of the 1999 bylaws. Not surprisingly, all changes of the 2000 revision have served the interests of Ha, neither KAFLA nor its members. Rather, the rights and interests of KAFLA and its members have been and will be seriously harmed.
All these circumstances clearly establish that Ha intended to serve his interests at the expense of KAFLA and its members. Therefore, Ha willfully and consciously disregarded the rights of KAFLA and its members, and because of his conscious disregard, KAFLA and its members have been subject to cruel and unjust hardship.
IV. CONCLUSION
As discussed above, there was no substantial evidence to support that the directors meeting in 2000 had the right to revise the bylaws or the directors meeting met the requirements of the quorum and two thirds of directors’ votes. Therefore, the trial court’s decision in favor of Defendant was in error.
It should be decided that the 2000 revision and its subsequent revision are invalid, KAFLA should correct the matters of the bylaws, Ha’s second term is ineffective, KAFLA should perform audits based on the 1999 bylaws, Plaintiff should be given remedies for his financial losses and emotional distress, and exemplary damages should also be given.
DATED: September 13, 2006
By:
APPELLENT Simon Bae in pro per
--------------------------------------
* 발행인님에 의해서 게시물 복사되었습니다 (2006-09-13 17:32)
* 발행인님에 의해서 게시물 복사되었습니다 (2006-09-13 17:33)
|
NEWS IN ENGLISH
