SIMON BAE KOREAN UNITY PRESS, U.S.A. 3010 WILSHIRE BLVD. #1000 LOS ANGELES, CALIFORNIA 90010 TEL. (213) 305-7100
Plaintiff in pro per
COURT OF APPEAL, SECOND APPELLATE DISTRICT DIVISION THREE STATE OF CALIFORNIA
SIMON BAE,
Plaintiff and Appellant,
vs.
KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. AND KEE WHAN HA.
Defendants and Respondents.
) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. B186395 Civil Case No. BC 275912
APPELLANT’S OPPOSITION TO RESPONDENTS’ MOTION TO AFFIRM TRIAL COURT’S DECISION, OR TO AUGMENT RECORD ON APPEAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
I. STATEMENT OF FACTS In 2000, Defendants and Respondents, Korean American Federation of Los Angeles (hereinafter “KAFLA”) and its former president Kee Whan Ha (hereinafter “HA”), amended the bylaws of KAFLA through the directors meeting in 2000. In June 2002, Plaintiff and Appellant, Simon Bae sued against KAFLA and HA, alleging the amendment was ineffective. The trial court decided in favor of Plaintiff. In January 2003, Defendant appealed. In March 2005, the appellate court reversed the trial court’s decision and remanded the case. The trial court reviewed the issue of whether the 2000 revision was effective. In August 2005, the trial court decided in favor of Defendant. In September 2005, Plaintiff appealed. In October 2006, Respondents filed the motion to affirm trial court’s decision, or in the alternative, to augment record on appeal. II. MAIN ISSUES AND EVIDENCE The issue that the trial court reviewed was whether the amendment of KAFLA’s bylaws in 2000 was valid. Appellant contended that the 2000 amendment was invalid because (1) the directors meeting did not have 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 failed to acquire the approval from two thirds of the directors.
1. First Issue: Whether Directors Meeting Had the Right to Amend the Bylaws For the first issue, both Appellant and Respondents presented their own translations of the 1999 bylaws originally written in Korean. The only major difference between the translations is about section 21 of the 1999 bylaws. Under Respondents’ translation, section 21 requires for the amendment of the bylaws the approvals from two thirds of “those registered” while according to Plaintiff’s translation, it requires the approvals from two thirds of “registered members’ votes” are required. Other than section 21, there is substantially no difference between the translations. As Appellant’s Opening Brief discusses, even Respondents’ translation obviously supports that the directors meeting did not have the right to amend the bylaws. To show that the directors meeting did not have the right to amend the bylaws, Appellant as the plaintiff at trial argued based on not only his own translation of the 1999 bylaws but also Respondents’ translation and the 1982 bylaws. Such arguments were presented through not only himself but also his attorney Andrew Kim. (Clerk’s Transcript 180-193) Appellant attached Respondents’ translation of the 1999 bylaws and the 2000 bylaws, and the 1982 bylaws to his Opening Brief. As discussed in Appellant’s Opening Brief, Respondent’s translation of the 1999 bylaws and the original 1982 bylaws does not show that the directors meeting had the right to amend the bylaws. Rather, they show that it was the registered members who had the right to amend. 2. Second Issue: Whether Directors Meeting Had the Right to Amend the Bylaws For the second issue, Respondent presented the attendance list and the declarations of HA, Francis Hur, and Grace Han which alleged twenty six (26) directors were present, three (3) directors authorized proxies, and thirteen (13) directors voted via fax. However, Respondents has never submitted the attendance list to the trial court and the trial court did not consider the attendance list in its decision. Therefore, without the attendance list, Respondents presented only the declarations of HA, his colleague and Grace Han as evidence to show the approvals from two thirds of the directors. Appellant presented Grace Han’s handwritings stating that she has never signed on any declaration in connection with the case, in ‘Plaintiff’s Written Submission in Trial By Declaration’ filed by Plaintiff’s attorney, Andrew Kim. (CT 70, 73) Appellant as the plaintiff at trial argued that the directors meeting failed to acquire approvals from two thirds of directors, based on Grace Han’s written statements as well as the attendance list and the declarations presented by Respondents. Respondents’ evidence for the approvals from two third of directors were not trustworthy because the attendance list does not have any signature nor any information about the thirteen (13) directors who were alleged to vote via fax. Further, one of the three declarants stated in written that she never signed on the declaration. For the appeal, Appellant designated relevant records and attached to his opening brief additional relevant evidence including Respondents’ translation of the 1999 bylaws and the 1982 bylaws. III. DISCUSSION 1. Respondents’ Motion to Affirm Trial Court’s Decision Should Be Denied. Respondents’ motion to affirm trial court’s decision should be denied because the cited cases do not support Respondent’s motion and the records can be augmented or diminished upon showing a good cause. Most of all, Respondents motion to affirm trial court’s decision failed to appropriately cite relevant cases. In Gee v. American Realty & Const., Inc. and Maria P. v. Riles, the courts affirmed trial courts’ decisions not because the appellants did not designate records filed by respondents but the appellants failed to furnish an adequate record to show an error in trial courts’ decisions. 99 Cal. App. 4th 1412, 1416; 43 Cal.3d 1281, 1295-96. Therefore, the cited cases do not support Respondents’ motion to affirm trial court’s decision. Further, as discussed above, Appellant designated and attached material evidence and record for each of the material issues to show errors in the trial court’s decision. Motion to dismiss appeal must be denied where the reviewing court cannot decide motion without examining records on appeal or disposition of motion requires consideration of appeal on its merits. Rasmussen v. Fresno Traction Co. (1936), 11 Cal. App. 2d 357, 358; Estate of Wunderle (1947), 30 Cal. 2d 274, 279. Moreover, the records can be augmented or diminished upon showing a good cause by the moving party. Cal. Rules Court R. 12 (West 2006). Accordingly, Respondents’ motion to affirm trial court’s decision should be denied. 2. Respondents’ Motion to Augment Record on Appeal Should Be Granted Only to the Extent That the Requested Record Is Materially Relevant to the Material Issues. Respondents’ motion to augment record on appeal should be granted only to the extent that the requested record is materially relevant to the material issues. As discussed above, the material issues were (1) whether the directors meeting had the right to amend the bylaws in 2000 and (2) whether, assuming arguendo the directors had such a right, the directors meeting actually acquired the approvals from two thirds of the directors. In determining the issues, a party’s alleged motive is irrelevant because the first issue should be determined based on what the bylaws provide and the second issue should also be determined based on any objective evidence. Accordingly, Respondents’ motion to augment records which are only to allege Appellant’s motive should be denied. (Respondents’ Motion, Exhibit 11 and 12, pages 179-214) 3. Respondents’ Request for Diminution of the Record Designated by Appellant Should Be Granted on the Conditions That the Undisputed Facts Stated in Appellant’s Opening Brief Shall Not Be Attacked Based on the Diminution of the Record And That the Records Filed by Appellant’s Attorney Shall Be Designated. Most of all, after the trial courts decision, Appellant was served with only the notice of the judgment. (Clerk’s Transcript 460-462) Appellant has never been informed about the contents of the Reporter’s Transcript of Proceedings attached to Respondents’ Motion as Exhibit 19. Appellant has not known that the documents filed by Appellant in pro per were not considered by the trial court and his translation of the 1999 bylaws was found inadmissible. Therefore, Appellant designated the records that Appellant considered important to show that there was no substantial evidence supporting the trial court’s decision in favor of Respondents. For the fair appellate proceedings, if the amendment of Appellant’s Opening Brief cannot be allowed, Respondents’ Request for diminution of the record should be granted on three conditions as discussed below. First, the undisputed facts stated in Appellant’s opening brief should be not attacked based on the diminution of the record unless the amendment of the brief would be allowed. For example, the brief states that KAFLA formed in 1962 (Clerk’s Transcript 43), 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), in August 2005, the trial court decided in favor of Defendant (CT 3), and in September 2005, Plaintiff appealed (CT 3). Basically, Appellant wrote his brief based on undisputed facts. Therefore, unless otherwise disputed, the facts stated in Appellant’s brief should not be attacked solely for the reason of the removal of the relevant part from the designated record. Second, the documents filed by Appellant’s attorney, Andrew Kim should be designated. During the trial, especially in March and April, 2005, Appellant filed four (4) documents through his attorney other than documents filed by Appellant in pro per. If the documents filed by Appellant in pro per should be removed from the record, Appellant would have only the four documents that he could designate. Among them, three have been already designated in the Clerks Transcript. (Clerk’s Transcript 60-96; 177-215; and 216-220) Therefore, “Plaintiff’s Reply to Defendants’ Opposition to the Written Submission in Trial by Declaration” filed on April 8, 2005 should be designated. (A true and correct copy of Plaintiff’s Reply to Defendants’ Opposition to the Written Submission in Trial by Declaration is attached as Exhibit 1) IV. CONCLUSION As discussed, Respondents’ motion to affirm trial court’s decision should be denied and to augment and diminish the record should be granted upon the conditions stated above.
DATED: November 2, 2006 By: APPELLENT Simon Bae in pro per
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