APPELANT’S URGENT WRITTEN SUPPLEMENT TO ORAL ARGUMENT (2002년 항소심 재판에 대한 원고인 긴급 서면 보충서)
글꼴크기 :
B186395
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION 3
SIMON BAE; and MEMBERS OF THE KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. SIMILARLY SITUATED,
Plaintiff/ Appellant,
vs.
KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.; KI HWAN HA,
and DOES 1 to 50, inclusive,
Defendants/ Respondent
Los Angeles County Superior Court – Case No. BC275912
HONORABLE KENNETH R. FREEMAN, JUDGE
________________________
APPELANT’S URGENT WRITTEN SUPPLEMENT TO ORAL ARGUMENT; DECLARATION OF SIMON BAE IN SUPPORT THEREOF
________________________
Simon Bae, publisher and editor
Korea Unity Press TV, U.S.A.
3010 Wilshire Blvd.
Los Angeles, California 90010
Telephone: (213) 305-7100
Plaintiff/ Appellant in pro per
APPELANT’S URGENT WRITTEN SUPPLEMENT TO ORAL ARGUMENT; DECLARATION OF SIMON BAE IN SUPPORT THEREOF
TO THE HONORABLE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION 3
AND RESPONDENTS
I. Statement of apology
As described in Appellant’s declaration, he had some serious omissions in the process of preparing the reply brief, which were supposed to cover some insufficient points in the opening brief. But he made even more serious his own mistakes in the reply brief, whereas the situation in opening brief was a kind of force majeure.
In this situation, Appellant planned to address several critical issues in the oral argument, all of which have been omitted or insufficiently explained in his opening and reply briefs. However, during the oral arguments, mainly because he is not an attorney, he did not fully understand what are the concerns of this Court and he did not fully and effectively address those concerned issues.
Therefore, Appellant wants to supplement the insufficient and ineffective explanations on the concerned issues in the oral argument and thus he needs to submit urgently URGENT WRITTEN SUPPLEMENT TO ORAL ARGUMENT; DECLARATION OF SIMON BAE IN SUPPORT THEREOF (“written supplement”).
In this circumstance, Appellant in pro per who has insufficient knowledge of laws deeply apologizes to this Court and to Respondents.
II. Exhibits and Documents that will be cited in Appellant’s oral argument
1. Plaintiff’s substitution of attorney filed on April 4, 2006 (Exhibit 1 of this written supplement)
2. Certified interpreter Jacki Noh’s translation (Exhibit 2 of reply brief)
3. Reporter’s transcript dated August 9, 2006 (Exhibit 19 of Respondent’s motion to augment)
4. Plaintiff’s reply filed on April 8, 2005 (CT 221-259) (“April 8 reply”)
5. Plaintiff’s additional report for the trial filed on April 29, 2006 (CT 260-339) (“April 29 report”)
6. Plaintiff’s trial brief filed on March 14, 2005 (CT 17-59). This was filed before filing Exhibit 1 on April 4, 2005. However, because this trial brief is closely related to the legitimate documents filed in Simon Bae’s name after April 4, 2005, this document also should be considered.
7. Plaintiff’s opposition to defendants’ written supplement in trial by declaration filed on March 28, 2005 (CT 177-215).
III. It is a serious abuse of discretion and error of the trial court not to consider the documents in the name of Simon Bae, Plaintiff in pro per, while considering the documents only in the name of Andrew Kim, the dismissed attorney
Besides the arguments in Appellant’s opening brief, the trial court made one very serious abuse of discretion and error, which was found by Appellant very late about March of 2006 as stated in Declaration. The trial court considered only documents filed in the name of Andrew Kim who was dismissed about on April 2, 2005 and ignored any documents filed in the name of Simon Bae, Plaintiff in pro per. The dismissal was also confirmed in writing with the submission of Exhibit 1 dated April 4, 2005. Nevertheless, all documents filed in the name of Simon Bae even after April 4, 2005 including the reply brief and any other documents are totally disregarded in the judgment and this is a very serious error and abuse of discretion.
This information is confirmed by Exhibit 19 of Respondent’s motion to augment. At P252 L4-6, it reads, “Okay. Plaintiff’s papers submitted in pro per are not appropriately considered as doing so would substantially prejudice the Defendants.” Also at P252 L14-15, it reads, “Thus, only the papers submitted by Plaintiff’s counsel have been considered by the court.”
The fact that the trial court disregarded any documents filed in the name of Simon Bae is already sufficient ground that this case should be remanded to the trial court. Appellant formally dismissed attorney Andrew Kim on April 4, 2005 in writing and after that dismissal, Appellant was suppose to file legal documents in his own name. Even after the dismissal, Attorney Kim filed a reply brief on April 8, 2005 and that is one of the reasons why Appellant filed a complaint against Kim to the state bar in January of 2007.
IV. Major differences between Bae Version from Kim Version
There are further serious issues on the above abuse of discretion by the trial court. The quality and arguments between the documents in the name of Attorney Kim (“Kim Version”) and those in the name of Simon Bae (“Bae Version”) are very different. The major arguments which are in Bae Version but not in Kim Version are mysteriously different and there are two major material differences between those versions.
A. First material difference of Bae Version from Kim Version: Jacki Noh’s translation is trustworthy
Bae Version stated and analyzed the fraud and false representation of Respondent Ha involved in the trustworthiness of the translation by certified translator Jacki Noh. Since Appellant found some related information even after April 4, 2005, he continued to submit new discoveries to the trial court. Previously, to this Court of Appeal, Respondent Ha misrepresented that Jackie Noh’s translation was not trustworthy because a 4 page Korean document was translated into 24 page English version. It is clearly a false statement and in order to prove the misrepresentation of Respondent Ha, Appellant collected information and now he has found it.
That translation went from 24 Korean pages into 24 English pages, not 4 into 24. It was found in late April of 2006 and was reported to the trial court. And afterwards, Appellant sufficiently contended why Ha’s representation is false and sufficiently explained why Jacki Noh’s translation is trustworthy in April 8 reply (P226 L20 – P228 L22 of CT) and April 29 report (P264 L21 – P265 L2 of CT). Appellant concluded, “Plaintiff believes that the whole arguments of Defendants regarding the translation of Jacki Noh cannot and shall not work any more, and her certificate is trustworthy and her translation is reliable, regardless of the opinion of the Appellate Court. (P228 L20-22 of CT).” But they were also ignored by the trial court because of the same reason that the trial court did not consider Simon Bae’s documents. Please remember these two documents (April 6 reply and April 29 report) were filed after dismissing Attorney Kim on April 4, 2005.
After many efforts, recently around late November of 2006, Appellant found the whole 24 pages of the English translation from Paragon, the translation company, and the 24 pages contained 2 pages of agreement, about 14 pages of election administration rules and about 8 pages of the bylaw. Appellant used only 8 pages of the bylaws and the Korean originals are also 8 pages, 4 pages of 1999 bylaw and other 4 pages of 2000 bylaw. This was shown in Exhibit 2 of the reply brief.
This means that 4 pages of bylaw in Korean become 4 pages of bylaw in English in 1999 and 2000 respectively. It is clear that Respondent Ha misled this Court of Appeal previously and caused it to rule the translation by Jacki Noh was untrustworthy.
Exhibit 19 of Respondent’s motion to augment also demonstrates that the trial court erroneously relied on the false representation of Respondent Ha. At P252 L18-22, it reads, “The declaration of the interpreter/translator states that she translated the attached 24-page document from Korean into English. The Korean language document attached to the certificate consists of only four pages.” Also, at P253 L8-12, it reads, “The Appellate Court acknowledged these inconsistencies and agreed the document was erroneously admitted. The court noted Bae’s failure to present a contrary argument as a concession that the document was erroneously admitted.”
However, as indicated above, Bae Version already succeeded in presenting the contrary argument, whereas only Kim Version failed it. Jacki Noh’s certificate is perfectly legitimate and trustworthy, since it has her signature and judge’s signature and seal of Paragon (translation agency) at every English page, etc. There is absolutely no reason why her translation and her certificate are not trustworthy. In addition, now, Bae presented the physical evidence against Ha’s false representation through Exhibit 2 of the reply brief.
B. Second material difference of Bae Version from Kim Version: Bylaw amendment of some provisions affects the rights of members adversely and materially
Some of the provisions amended by the directors in 2000 including the extension of presidential term affect the members’ voting rights adversely and materially. Even if it were interpreted as the board of directors has the power to amend some minor provisions, the provisions which affect the members’ rights adversely and materially should be amended by the members or at least approved by the members. In this issue, Respondent violated the court of state law Corporate Code Section 5150(b), which provides, “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; …”
This argument is fully stated in Bae Version as seen in April 8 reply and the trial brief and the opposition. In addition, Respondent’s brief did not handle it either, because this issue was also omitted in opening brief.
For example, April 8 reply of Bae Version stated how Respondents violated Section 5150(b) as:
The government of the United States of America (USA) of the people by the people for the people is the basic idea and principle of democracy of USA. Likewise, KAFLA of the members by the members for the members is the basic idea and principle of democracy of KAFLA, which is a non-profit organization for public benefits of the members. KAFLA is neither a private company for private benefits of the owner nor a gangster organization for benefits of a few big brothers, but is a non-profit organization for public benefits of the members.
Therefore, any provisions of the bylaws or election rules of KAFLA or their interpretations against this basic principle of democracy of non-profit organization for public benefits shall be unlawful; and any amendments of the bylaws or election rules of KAFLA against this basic principle of democracy of non-profit organization for public benefits shall be unlawful. All of the amendments of the bylaws or election rules of KAFLA including but not limited to the extension of president term during Defendant Ha’s terms are against this basic principle of democracy of non-profit organization for public benefits. Therefore, the amendments of the bylaws by Defendants during Ha’s terms are unlawful.
…. The amendments of the material provisions of the bylaws of KAFLA such as the extension of president term, re-running, etc. require the opinions of the members.
Nevertheless, the trial court never handled this issue at all erroneously, because it ignored Bae Version completely erroneously.
V. The issue of disregarding Bae Version was fully shown to the trial court but still the trial court disregarded Bae version
Probably because Respondents were more afraid of Bae Version than of Kim Version, they requested the trial court to disregard Bae Version completely but consider Kim Version only in their opposition.
Then, after dismissing Andrew Kim formally on April 4, 2005, in the reply filed on April 8, 2005, at P222 L15-19 of CT, Appellant states, “Plaintiff was frightened again by the suspicious acts of Defendants, who attempted to disregard the documents in the name of in pro per and to respond to the documents in the name of attorney only. As a result, Plaintiff orally dismissed the attorney for Plaintiff on April 2, 2005 at about 3:30 PM. The substitution of attorney was filed with the court and was served to the attorney for Defendants on April 4, 2005.”
This implies that the fact of dismissal of Attorney Kim and the reasons for the dismissal are fully shown to the trial court. It proves the negligence of the trial court, that apparently even did not read the reply of Bae Version for the 3 months at all before its formal judgment. This is an obvious negligence and obvious abuse of discretion of the trial court.
Furthermore, in April 8 reply, Appellant also stated why two trial briefs were filed and why he tried to dismiss Attorney Kim even about on March 14, 2005 at P222 L20 - P223 L5 of CT, “How were the two briefs filed? Plaintiff prepared a draft of the brief with the help of a California State certified court interpreter, Jin Ree, and showed it to the attorney, Andrew Kim, to complete the final version of the brief while incorporating the whole draft in the brief. However, when Plaintiff saw the final version prepared by the attorney (hereinafter, “attorney version”) on March 14, 2005, he was disappointed since it does not incorporate the draft fully. The total pages are even fewer in the version than the draft (mathematically it should be more). At that time, Plaintiff decided to ignore the attorney version and adopt the version prepared by Plaintiff in pro per (hereinafter, “in pro per version”), and informed the attorney of the dismissal. Plaintiff had Jin Ree edit the draft as a final version hurriedly and print it. Then, Plaintiff filed it with the court. Afterwards, on the same day, Plaintiff heard from the attorney that the attorney version also should be filed. He was persuaded and withdrew the dismissal and let the attorney version also be filed with the court at the late afternoon.”
VI. Conclusion
The fact that the trial court disregarded any documents filed in the name of Simon Bae is already sufficient ground that this case should be remanded to the trial court, since Appellant formally dismissed attorney Andrew Kim on April 4, 2005 in writing. Moreover, Kim Version was very poor and omitted material information and discussions in this case, whereas Bae Version had them. Therefore, this case should be reversed and remanded to the trial court again.
Respectfully submitted,
Dated: March 22, 2007
By: ______________________________
Simon Bae
Plaintiff/ Appellant in pro per
DECLARATIION OF SIMON BAE
I, Simon Bae, declare:
1. I am Appellant/ Plaintiff in pro per in this action and make this declaration in support of this written supplement.
2. I am weak in English, and I am not strong in laws either. Thus, I have been helped by a translator and legal document preparer (“Preparer”) in most of legal documents in this case and other related case (BC349669). Especially, most of the documents in my name in pro per are prepared by Preparer. I also expected I would be helped by him in this appeal including opening brief and reply brief.
3. In Case BC340669, Defendants’ demurrer to the first amended complaint was overruled on May 1, 2006 after four-time hearings. During these hearings, for the first time, I found that Judge Freeman did not consider the documents filed in the name of Plaintiff in pro per, Simon Bae, whereas he considered only the documents filed by my temporary attorney, Andrew Kim. It was known to me for the first time about December of 2005 by Preparer, who read the reporter’s transcript dated August 9, 2005, which was served as an exhibit by the adverse attorney in Case BC340669.
4. However, during the period of February – March of 2005, I was not satisfied with Andrew Kim’s works and I dismissed him orally about on April 2, 2005 and filed the substitution of attorney on April 4, 2005 in writing (Exhibit 1). Therefore, I had believed that the trial court considered the documents filed in my name only after April 4, 2005. However, actually, I was surprised at that non-consideration information shown in the reporter’s transcript (Exhibit 19 of Respondents’ motion to augment)
5. By the way, at the time of preparing opening brief, I suffered serious problems, mainly because Preparer was suffering a very serious horrible disaster for some period including the period from late May through early August of 2006, so-called Absent Period. (This disaster and the related Absent Period are described in the First Amended Complaint of BC355792 in detail.) Thus, I could not be helped by him, and I had to prepare the opening brief by myself first.
6. I continued to have difficulty to prepare the opening brief a few times while suffering returning of the briefs, and at this period I could not fully understand the real personal situation of Preparer. Eventually, Respondent filed motion to dismiss appeal, but the motion was denied. Around at that time, I could really understand the serious situation of opening brief. So, at that time, I had to choose to use another person who is a prospective attorney. However, opening brief still did not fully reflect the ideas and opinions of Preparer. After filing the opening brief, I was able to understand better the real horrible situation of Preparer during late May through early August. Since then, I re-continued to use his service and opinion and so on. At this time of preparing the reply brief, I planned to reflect his ideas and opinions.
7. About in November of 2006, I found total 24 pages of the translation translated by a certified interpreter, Jacki Noh, from Paragon, the translation agency. Since Respondent Ha made false representation about the trustworthiness of Jacki Noh’s translation while alleging 4 pages of Korean become 24 pages of English. Thus, I attempted to collect the evidence against his false representation.
8. Now, I was successful to collect those total 24 pages from Paragon. It was not an easy job. I attached those pages in Exhibit 2 of the reply brief. But the actual reply brief did not fully explain about the trustworthiness of Jacki Noh’s translation by using Exhibit 2 of reply brief, though I attached it there.
9. At first, I requested Preparer to make the initial draft of the reply brief before showing it to the prospective attorney. And around at that time, I also requested him to prepare some complaint against Attorney Andrew Kim to the state bar. But he was reluctant to prepare the complaint against Kim. I was mad at him and I demanded him to withdraw also from the reply brief work. It was about one day in early December 2006. In this way, I could not be helped by him not only for state bar complaint against Kim but also for the reply brief, though I heard many his ideas and opinions on how to make the reply brief.
10. I was preparing the oral argument with Preparer and he had already demanded for me to show reply brief and other documents to him from about late December of 2006. But I delayed showing them to him.
11. On about February 24, 2007, I showed the reply brief and the other documents to him to prepare the oral argument. And then on about February 27 and afterwards, he began to tell me that the reply brief lacked some serious issues, and after that I realized I made very serious omissions in the process of making the reply brief. One of them is that the reply brief did not have an exhibit of the substitution of attorney dated April 4, 2006 and thus did not describe this issue at all. Secondly, there is no clear sufficient explanation on the 24 pages of the English translation from Paragon.
12. I planned to address several critical issues (about 3) in the oral argument, all of which have been omitted or insufficiently explained in my two briefs. However, mainly because I am not an attorney, I think I did not fully understand what are the concerns of this Court and I did not fully and effectively address those issues during the oral arguments.
13. Now, fortunately, I understand much better what this Court is concerned about, and thus as a supplement to oral argument, I came to prepare this written supplement. Therefore, I pray this Court consider the issues in this written supplement fully.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated: March 22, 2007
________________________
Simon Bae
PROOF OF SERVICE
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is, 110 N. Berendo St., Los Angeles, California 90004.
On March 23, 2007, I served the foregoing documents described as APPELANT’S URGENT WRITTEN SUPPLEMENT TO ORAL ARGUMENT; DECLARATION OF SIMON BAE IN SUPPORT THEREOF on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:
Henry M. Lee
3530 Wilshire Blvd. Suite 1130
Los Angeles, CA 90010
Dana Moon
3435 Wilshire Blvd. Suite 1060
Los Angeles, CA 90010
BY MAIL
I caused such envelope to be deposited in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with this firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. postal service on the same day in the ordinary course of business. I am aware that on a motion by party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the “date of deposit for mailing" in Affidavit.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on March 23, 2007 at Los Angeles, California.
___________________
Jin Ree
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