Opinion
B186395
5-3-2007
SIMON BAE, Plaintiff and Appellant, v. KOREAN AMERICAN FEDERATION OF LOS ANGELES et al., Defendants and Respondents.
Simon Bae, in pro. per., for Plaintiff and Appellant. Henry M. Lee Law Corporation and Henry M. Lee for Defendants and Respondents.
NOT TO BE PUBLISHED
INTRODUCTION
This case involves a dispute as to whether the bylaws of defendant and respondent the Korean American Federation of Los Angeles (KAFLA) were properly amended in 2000. If so, the president (defendant and respondent Kee Whan Ha, hereinafter Ha) properly sought reelection and became president for a second term. Plaintiff and appellant Simon Bae (Bae) brought this case challenging the election and Has presidency. We affirm the trial courts judgment in which it concluded that Bae had not met his burden of proof.
FACTUAL AND PROCEDURAL BACKGROUND
Following the usual standard of review, we construe all disputed facts in favor of the judgment. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766;Escamilla v. California Dept. of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514.)
KAFLAs predecessor organization was formed in 1962. In 1982, KAFLA became an incorporated non-profit corporation. Articles of incorporation were filed at that time. As a non-profit corporation KAFLA is governed by California Corporations Code section 5100 et seq.
The mission of KAFLA is to promote the rights and interests of the Korean American community and to further cultural exchange and friendly relations between the Korean American community and the mainstream society. KAFLA provides a number of services and organizes a number of activities, including providing information to new immigrants.
The original bylaws of 1982 provided that the "Board of Directors shall deliberate and resolve the following: [¶] 1. Matters to amend or enact the Baylaws [sic], Regulations Governing Elections, and other regulations[.]"
In 1984, 1995, 1997, 1998, and 1999, KAFLAs bylaws were amended. Each time, the amendments were passed by a vote of the board of directors.
Most of KAFLAs records have been lost.
KAFLAs bylaws are written in Korean. All of its operations, such as meetings and the text of its minutes, are conducted in Korean. In the ordinary course of its business, KAFLA does not maintain an English translation of its bylaws. KAFLAs 1999 bylaws, which are the focus of the dispute, were written in Korean and translated into English for purposes of this litigation. The 1999 bylaws provided that the president could only serve one term.
The 1999 bylaws provided for two types of membership: "regular" and "honorary." All Korean Americans over the age of 18 residing in Los Angeles County were automatically KAFLA "regular members," by virtue of their ethnicity, and had a right to vote. It was estimated that there were 600,000 Korean Americans living in Los Angeles County, 300,000 of whom were over the age of 18. "Honorary members" were all non-Koreans who supported KAFLAs objectives.
KAFLA set up a process to register voters. This was done to minimize the risk that members would vote more than once in the presidential election. Members names were placed on a master list, and crossed off when the person voted.
Ha was elected president in April 2000, by a vote of the community.
a. The amendments to the 1999 bylaws.
Soon after Ha took office, Grace Han (Han) was selected as chair of a bylaws revision committee. Thereafter, the committee proposed 41 changes to the bylaws and election procedures. One proposal was to permit the president to seek a second term.
On June 6, 2000, Han notified the 43 KAFLA directors that the regularly scheduled board meeting would take place on June 12, 2000. The notice also included a list of the proposed changes.
Half of the board had to be present for a quorum. To amend the bylaws, the resolution had to pass by two-thirds vote. On June 12, 2000, 26 of the board members were present for the meeting. Thirty-nine directors voted to permit KAFLAs presidents to seek a second term. Of the directors who voted for the proposal, 26 were present at the meeting and 13 voted by proxy or absentee ballot. The proposal passed as more than two-thirds of the directors voted for it.
b. The 2002 election.
Ha was the sole, unopposed, candidate for election in 2002. He was installed as KAFLAs president in June 2002.
2. The original trial court proceedings.
a. The complaint and initial proceedings.
On June 17, 2002, the day before Ha was reinstalled as president, Bae filed this lawsuit seeking to remove Ha from office and to obtain a new election. Bae sought a temporary and permanent injunction. The crux of Baes complaint was that KAFLAs board improperly amended the 1999 bylaws to permit Ha to run for a second term. Bae alleged the amendment was improper because the "1999 By-laws unequivocally states that the revision of the By-laws shall require favorable votes from two thirds of the registered members[, and not two thirds vote of the board]." (Italics added.) KAFLA and Ha were named as defendants and appear on appeal as respondents.
Although other plaintiffs originally were named in the complaint, only Bae continues to pursue this litigation.
b. The first trial.
The case proceeded to a court trial. The parties agreed that according to KAFLAs 1999 bylaws, the president could not seek reelection. The major issued addressed was whether the amendment to the 1999 bylaws permitting Ha to run for reelection had to be approved by the board or by the registered members. If, as Bae argued, the "registered members" had to approve a change to the 1999 bylaws, then Has second term had to be voided.
The 1999 bylaws were translated for this litigation. Baes English translation was contained in Exhibit 1. The declaration of the translator stated that 24 pages were translated from Korean to English. However, the attached document in Korean was only four pages. The interpreters declaration indicated that the title of the original document was "Agreement, Bylaws, and Election Administration Rules." However, the title of the translation was only "Bylaws." The translation had a cover page, although the original did not.
According to Exhibit 1, the key provision was contained in Article 21 of the 1999 bylaws. Baes English translation of this key provision was that "All meetings of [KAFLA] shall be effective with the presence of a majority of the members, and all the decisions shall be made by [a] majority vote. However, revision of the Bylaws shall require favorable votes from two thirds of the registered members." (Italics added.)
Article 21 is in a chapter of the bylaws entitled "Meetings." Article 20 delineates the types of KAFLA meetings. Exhibit 1 (the translation provided by Bae) and Exhibit 2 (Baes translation of the 2000 bylaws) listed the four different types of meetings as "annual meeting," "regular directors meeting," "temporary directors meeting," and "operational meeting." Exhibit 14 (the translation submitted by KAFLA and Ha) listed these meetings as "biannual meeting," "regular board meeting," "special board meeting," and "executive meeting."
In Exhibit 1, "annual meeting" was defined as "The Annual Meeting shall be called by the new President every two years between April 1 and April 20 to examine and resolve important matters, including revision of the Bylaws and the Election Administration Rules, organization of the Chairmans Group, a decision on the Board of Directors fee, and examination of the business plan and budget."
Exhibit 14 defined the "biannual meeting" as follows: "The newly elected President shall convene a meeting either on April 1st or on 20th every other year to discuss and resolve amendments of the bylaws and election regulations, the Board member composition, the membership due[s], business plan, budget analysis and other important issues."
Exhibit 14 defined "regular board meeting" as "The Chairperson shall convene a meeting once a month to discuss and resolve important issues."
KAFLA and Ha argued that the 1999 bylaws permitted amendments by a two-thirds vote of the board of directors, as had been done throughout the history of the organization. KAFLA and Ha noted that even though there might have been a process to register voters, there was no such thing as a "registered member" and that given the size of the organization it was impractical and unrealistic to interpret the bylaws to require a vote of the membership to amend the bylaws.
In Exhibit 14, the translation of the bylaws submitted by KAFLA and Ha, Article 21, read: "The quorum for any meeting shall require more than half present and resolutions are passed by majority vote. Amendments of bylaws shall require more than two-third (2/3) of those registered." Another translation submitted by KAFLA and Ha of the 1999 bylaws translated the key provision as: "The quorum to call the meetings to order shall be the majority attendance. Decisions are made by plurality. Amending the bylaws shall require 2/3 votes."
The second English translation of the 1999 bylaws was done by Young S. Suh. (Exhibit 85.) Suhs declaration was not admitted into evidence.
KAFLA and Ha contended that the board had to approve bylaw amendments because there were no meetings of the membership, but only board meetings. They also contended that when Article 21 referred to a "meeting," by necessity it referred to a meeting of the board as described in Article 20, which only defined board meetings. KAFLA and Ha noted that even though Exhibit 1 referred to an "annual meeting" it defined such meetings as being held "every two years." (See fn. 4.)
c. The decision in the first trial.
A court trial was held in January 2003. Thereafter, the trial court entered a judgment in favor of Bae and "Members of the Korean American Federation of Los Angeles, Inc., similarly situated." The trial court held that (1) the 1999 bylaws could not be amended without votes from two-thirds of the registered members; (2) the 1999 bylaws had not been validly amended to permit the president to seek a second term; and (3) Ha could not have properly sought reelection.
The trial court issued a permanent injunction restraining Ha from acting as KAFLAs president and directing Ha to surrender immediately all KAFLA properties. The judgment also included a directive to KAFLA to "immediately conduct an election for the KAFLA presidency."
d. Postjudgment proceedings.
On February 20, 2003, KAFLA and Ha filed a motion for new trial in the trial court on the basis that they had discovered the original 1982 KAFLA bylaws which were in English. The 1982 bylaws provided that the president may serve for two terms and the board had the power to amend the bylaws. The trial court did not consider the new trial motion, concluding it had lost jurisdiction to rule on it because a notice of appeal had been filed on January 17, 2003.
e. The first appellate proceedings.
Bae filed in this court a petition for writ of mandate (B168943) contending the injunction was merely prohibitory and therefore the judgment was not automatically stayed on appeal. Bae sought immediate enforcement of the injunction to preclude Ha from being KAFLAs president pending appeal. Bae also asked that we immediately decide the matter. We deemed the petition for writ of mandate and the application for order shortening time for hearing together as a motion to expedite the appeal.
In an opinion filed on March 10, 2004, in Case No. B164472, we held that the trial court erred because it had jurisdiction to consider the new trial motion. We also held that the trial courts refusal to hear the new trial motion was prejudicial because the newly discovered document warranted a new trial. We concluded that the 1982 bylaws were significant because the trial court had placed great weight on the fact that it did not know what was contained in that document, the original 1982 bylaws would have aided in understanding the past practices of KAFLA, and that if the amendments to the 1999 bylaws had been done improperly, other amendments might also have been invalid, and thus the 1982 bylaws might have controlled the election.
In Case No. B164472, we also stated that the 1982 bylaws had additional significance in light of evidentiary errors: "Exhibit 1 (Baes translation of the 1999 bylaws) was erroneously admitted into evidence as no foundation was laid to demonstrate its reliability. No interpreters certification accompanied Exhibit 1. Further, the copy of Exhibit 1 that had been attached to Baes 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. [¶] Baes entire case probably would have crumbled had Exhibit 1 not been admitted. This was the translation used by Bae to support his position that amendments to the bylaws should have been made by a vote of the `registered members. Exhibit 1 was relied upon extensively by the trial court to support its conclusion that bylaw amendments were to be made by `registered members. The trial court stated in the statement of decision, `Exhibit 1 leave[s] no room for any other interpretation: Revision of the Bylaws shall require favorable votes from two thirds of the registered members. (Original emphasis.)" (Case No. B164472, supra, [at p. 12].)
We additionally held the trial court erred in admitting irrelevant testimony that had "permitted Bae to besmirch Has reputation. Given that Ha was the only witness presented on his and KAFLAs behalf, this error was significant." (Case No. B164472, supra, [at p. 12].)
We reversed and remanded to the trial court.
We also declined to impose sanctions upon Bae.
3. The proceedings on remand.
a. The second trial.
On June 30, 2004, Has term as KAFLAs president expired.
On remand the case was assigned to the Honorable Kenneth R. Freeman.
KAFLA and Ha moved to dismiss the case on the grounds that Ha already had stepped down as president. The trial court denied the motion because a single unresolved issue remained: whether KAFLAs bylaws were properly amended in 2000.
The parties stipulated that the case would be tried by declaration. The trial court ordered the parties to file briefs limited to the single unresolved issue, but informed the parties that they had a right to call witnesses, if notice of such was given prior to the hearing.
The parties submitted briefing. When the case came for hearing, neither party sought to call witnesses. The arguments by the parties tracked those that had been argued in the first trial:
(1) Bae contended that a two-thirds majority of the "registered members" was required to amend the bylaws. Bae submitted Exhibit 1, which was the identical translation and certification he had submitted in the first trial. Additionally, Bae argued that Corporations Code sections 5150, 5220, and 5034 required a vote of the members to amend bylaws. Bae claimed that the July 2, 2002, declaration of Grace Han (chair of the bylaws revision committee) that was submitted by KAFLA and Ha was a forgery.
Corporations Code section 5150 reads:
"(a) 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 materially and adversely affect the rights of members as to voting or transfer.
"(b) Bylaws may be adopted, amended or repealed by approval of members (Section 5034); provided, however, that such adoption, amendment or repeal also requires approval by the members of a class if such action would materially and adversely affect the rights of that class as to voting or transfer in a manner different than such action affects another class.
"(c) The articles or bylaws may restrict or eliminate the power of the board to adopt, amend or repeal any or all bylaws, subject to subdivision (e) of Section 5151.
"(d) Bylaws may also provide that repeal or amendment of those bylaws, or the repeal or amendment of specified portions of those bylaws, may occur only with the approval in writing of a specified person or persons other than the board or members."
Corporations Code section 5220, subdivision (d) reads:
"(d) Subdivisions (a) through (c) notwithstanding, all or any portion of the directors authorized in the articles or bylaws of a corporation may hold office by virtue of designation or selection as provided by the articles or bylaws rather than by election by a member or members. Those directors shall continue in office for the term prescribed by the governing article or bylaw provision, or, if there is no term prescribed, until the governing article or bylaw provision is duly amended or repealed, except as provided in subdivision (e) of Section 5222. A bylaw provision authorized by this subdivision may be adopted, amended, or repealed only by approval of the members (Section 5034), subject, if so provided in the bylaws, to the consent of the person or persons entitled to designate or select the director or directors."
Corporations Code section 5034 reads: " `Approval by (or approval of) the members means approved or ratified by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present (which affirmative votes also constitute a majority of the required quorum) or written ballot in conformity with Section 5513, 7513, or 9413 or by the affirmative vote or written ballot of such greater proportion, including all of the votes of the memberships of any class, unit, or grouping of members as may be provided in the bylaws (subdivision (e) of Section 5151, subdivision (e) of Section 7151, or subdivision (e) of Section 9151) or in Part 2, Part 3, Part 4 or Part 5 for all or any specified member action."
(2) KAFLA and Ha contended that the KAFLA bylaws always have been amended by a vote of the board and the 1999 bylaws conferred the right to amend the bylaws to the board, by a two-thirds vote. KAFLA and Ha presented the declarations of Ha, Francis Hur (KAFLAs executive director from 2000 to 2004) and Han. Hans three-page declaration, signed under penalty of perjury, was dated July 2, 2002. All three persons declared that there were 26 directors present on June 12, 2000, and a total of 39 directors voted to ratify the proposal. Ha and Hur additionally declared that 13 of the votes in favor of the proposal had been submitted by proxy or absentee ballot.
KAFLA and Ha submitted the same two English translations of the 1999 bylaws as they submitted in the first trial. As noted above, the first translated the key provision as: "The quorum for any meeting shall require more than half present and resolutions are passed by majority vote. Amendments of bylaws shall require more than two-third (2/3) of those registered." The second translated the key provision as: "The quorum to call the meetings to order shall be the majority attendance. Decisions are made by plurality. Amending the bylaws shall require 2/3 votes."
In the first trial, there was a problem authenticating the second translation submitted by KAFLA and Ha. (See fn. 6.) This problem was cured in the second trial.
KAFLA and Ha also submitted an English translation of the 1982 bylaws providing that the board was to "amend or enact [bylaws] . . . ."
The matter was taken under submission.
Baes counsel submitted pleadings on Baes behalf. Additionally, Bae individually, in propria persona, submitted briefing to the trial court. The trial court did not consider the pleadings submitted by Bae in propria persona. Thus, we have not considered them.
b. The trial courts decision
The trial court notified the parties by mail that it had ruled in favor of KAFLA and Ha. Thereafter, on August 9, 2005, the trial court issued a statement from the bench explaining its conclusion that Bae had not met his burden of proof.
The trial court reasoned as follows: Bae submitted no admissible evidence of the 1999 bylaws. Baes Exhibit 1 was inadmissible. It consisted of the identical translation and certification that we had found unreliable and inadmissible in the first appeal (Case No. B164472). Baes citation to Corporations Code sections 5150, 5220, and 5034 was unwarranted as these statutes did not require a two-thirds vote of members to amend bylaws. Rather, these sections stated "that the bylaws `may be adopted by the board unless it would materially affect the rights of members. [¶] Section 5220(d) states amendments to bylaws must be approved by members only if the bylaws provide. . . . [Bae] has not submitted any admissible evidence that the bylaws so require. The statutes do not require two-thirds vote by the members." Thus, Bae did not meet his burden of proof. The trial court rejected the sanction request of KAFLA and Ha.
Judgment was entered. Bae filed a notice of appeal.
Although Bae was represented by counsel in the trial court, on appeal he appears in propria persona. In a detailed August 9, 2005, order that included a lengthy explanation, we struck Baes opening brief because it failed to comply with proper appellate procedures. Baes amended opening brief and his reply brief contain many of the same problems.
Although Bae appears on appeal in propria persona, he is afforded no special treatment. Litigants appearing in propria persona are entitled to the same, but not greater, rights as other litigants. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193.)
DISCUSSION
Bae did not meet his burden of proof and KFLA and HA brought forth evidence to prove the board properly amended the bylaws.
1. Bae did not meet his burden of proof.
On appeal, Bae presents two issues: (1) KAFLA and Ha failed to show that the board of directors had the right to revise the bylaws, and (2) even if the board had the right to revise the bylaws, KAFLA and Ha failed to present sufficient evidence proving that the vote to amend the 1999 bylaws acquired a two-thirds vote. In raising these two issues, Bae ignores the trial courts decision and his burden of proof.
Bae brought the underlying action contending the vote to amend the 1999 bylaws was invalid. Bae argued that a two-thirds vote of the "registered members" was required to amend the bylaws. Bae had the burden of proof. Bae submitted the same English translation of the 1999 bylaws (Exhibit 1) as he had presented in the first trial, along with the same certification. In Case No. B164472, we held that "Exhibit 1 . . . was erroneously admitted into evidence as no foundation was laid to demonstrate its reliability[and the accompanying certification] was not trustworthy." (Case No. B164472, supra, [at p. 12].) In the second trial, Bae did not cure these defects. Thus, Bae presented no evidence to support his argument or his interpretation of the 1999 bylaws.
Further, Bae relied upon Corporations Code sections 5150, 5220, and 5034. However, these statutes do not require a two-thirds vote of members to amend bylaws. Together, these statutes permit the board to adopt bylaws, unless to do so would materially affect the rights of members as to voting or transfer rights, or unless the bylaws require otherwise. The amendment here simply permitted the president to serve for a second term.
Having not carried his burden of proof, the trial court did not err in granting judgment in favor of KAFLA and Ha.
Bae ignores the burden of proof and contends on appeal that KAFLA and Ha did not introduce substantial evidence to support the trial courts decision. Although it is unnecessary for us to discuss the substantial evidence argument, we briefly demonstrate why this argument is not persuasive.
2. KAFLA and Ha brought forth evidence to prove the board properly amended the bylaws.
Under the substantial evidence standard of review, " `"When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact." [Citations.]" (Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 766; Escamilla v. California Dept. of Corrections & Rehabilitation, supra, 141 Cal.App.4th at p. 514.)
The only time the concept of being "registered" is discussed in KAFLAs history is when members names are placed on a master list, and crossed off as they vote. KAFLAs bylaws always have been amended by a vote of the board of directors. KAFLA and Ha submitted two translations of the 1999 bylaws. The bylaws provide for "regular" and "honorary" members. The bylaws do not include a category for "registered" members. One translation submitted by KAFLA and Ha stated that, "The quorum to call the meetings to order shall be the majority attendance. Decisions are made by plurality. Amending the bylaws shall require 2/3 votes." The other translated this provision as, "The quorum for any meeting shall require more than half present and resolutions are passed by majority vote. Amendments of bylaws shall require more than two-third (2/3) of those registered." When these documents are construed together, along with the organizations history, it is reasonable to conclude that in 1999, the board voted to amend the bylaws.
Bae argues that even though the declarations of Ha, Han, and Hur all attested that 26 board members were present at the June 12, 2000, meeting and voted to amend the bylaws, the vote of the board did not meet quorum requirements. Bae premises this argument upon the claim that Hans signature on her July 2, 2002, declaration was forged. This argument is supported by (1) Baes statements that Han told him that she had never signed a July 2, 2002, declaration and (2) a letter submitted by Bae that reads in full: "Dec. 27, 2004 [¶] To whom it may concern; [¶] I didnt signed [sic] on July 2, 2002. [¶] Sincerely Yours. [Korean] Grace Han[.]" First, Baes statements as to what Han told him are hearsay. Second, the letter dated December 27, 2004, was not signed under penalty of perjury and thus does not meet the standards of admissibility. (Code Civ. Proc., § 2015.5.) Further, even if the letter was admissible, it would not destroy the conclusion that there was a sufficient quorum, as attested to by Ha and Hur in their declarations. (Evid. Code, § 411 [direct evidence of one witness is entitled to full credit].)
We have not considered a letter purporting to have been written by Han that is attached to Baes opening brief. It was not presented in the trial court and while it purports to be a translation, there is no certification from a translator.
Lastly, Bae argues on appeal that (1) the bylaws were not validly amended because the vote took place at a directors meeting and not at a biannual meeting (see fn. 5); (2) a comparison of the 1982 and 1999 bylaws indicates KAFLA intended to shift authorization for amendments from the board to "registered members;" (3) the bylaws provided that the biannual meeting was to be convened by the newly elected president, such a meeting must be held immediately after the presidential election, when members vote for president they must "register," and thus, "registered members" are the only ones who can vote to amend the bylaws; (4) the concept of "registered members was acknowledged in the original 1982 bylaws because it required membership dues; and (5) KAFLA did not conduct the necessary audits that would have reveal financial improprieties.
These arguments are not persuasive. The definitions of "biannual meeting" and "regular meeting" do not preclude a vote to amend bylaws at a regular board meeting, as a regular board meeting is defined as a meeting to "discuss and resolve important issues." (See fn. 5.) Ha declared that the only time there was a concept of "registering" was when lists were established to preclude fraud in the voting process. Baes analysis of the 1982 bylaws is a stretch. The issue of financial improprieties is not before us. The only issue before the trial court was whether the vote to amend the bylaws was proper; thus, the issue of the audit is irrelevant.
DISPOSITION
The judgment is affirmed. Bae is to bear all costs on appeal.
We concur:
KLEIN, P. J.
KITCHING, J.