Tentative Decision - ARF Dashnaktsutyun Western U.S.A. v. Armenian Revolutionary Federation WUSA
This is the tentative decision in a sub-lawsuit in the case of ARF Dashnaktsutyun Western U.S.A. v. Armenian Revolutionary Federation WUSA. If the names sound confusing to you, that's one of the main contentions of the lawsuit.
Case Number: 21STCP01785 Hearing Date: January 18, 2022 Dept: 85
Aida Dimenjian, et al. vs. Armenian Revolutionary Federation – Dashnaktsutiun Western, U.S.A., et al., 21STCP01785
Tentative decision on petition to set aside election of directors: denied
Petitioners Aida Dimejian (“Dimejian”), Stepan Boyajian (“Boyajian”), and Khatchig Tazian (“Tazian”) seeks a determination of the validity of the December 28, 2020 election of Respondents Carmen Ohanian (“Ohanian”), Garo Ispenjian (also known as Garo Santour) (“Ispenjian”), Harut Mgrditchian (“Mgrditchian”), Krikor Topalian (also known as Koko Topalian) (“Topalian”), Vahan Bzdikian (also known as Vahan Bezdikian) (“Bezdikian”), Alik Ourfalian (“Ourfalian”), Levon Kirakosian (“Kirakosian”), Toros Kejejian (“Kejejian”), Sarik Berberian (also known as Sako Berberian) (“Berberian”), Shahen Derderian (“Derderian”) and Arto Keuleyuan (“Keuleyan”) (collectively, “Individual Respondents”) as directors of Armenian Revolutionary Federation-Dashnaktsutiun Western, U.S.A. (“ARFDW-USA” and sometimes “Entity Respondent”).
The court has read and considered the moving papers, oppositions,[1] and reply, and renders the following tentative decision.
A. Statement of the Case
Petitioners commenced this proceeding on May 28, 2021. The operative pleading is the First Amended Petitioner (“FAP”) filed on August 30, 2021. The FAP seeks a determination pursuant to Corporations Code[2] section 7616 of the validity of the December 28, 2020 election of the individual Respondents as directors of ARFDW-USA’s Central Committee.
ARFDW-USA is a California, mutual benefit non-profit corporation. ARFDW-USA has 18 chapters known as gomidehoutounes. Those chapters are governed by leaders known as gomidehs. ARFDW-USA is governed by a board of directors known as the Central Committee.
Petitioners Dimejian and Boyajian became members of the Central Committee in September 2019. They participated as members, including voting on all matters that came before the Central Committee.
A Regional Convention is convened every two years for the election of the board directors and called at the notice invitation of the Central Committee. The Regional Convention accepts elected delegates from each local chapter. There is a procedure to determine the number of delegates for the election of the Central Committee. The Regional Convention properly took place in 2018 and a Central Committee was elected which acted as the board of directors.
Due to the pandemic, the Regional Convention scheduled for the end of April 2020 was indefinitely postponed. On October 8, 2020, the Central Committee gave notice that the Regional Convention would take place on December 3 through 6, 2020.
On December 3, 2020, the Central Committee gave notice that the December 3, 2020 meeting had been suspended. This was the last communication regarding the date of the Regional Convention given to all members and chapters as required by ARFDW-USA’s bylaws. No further notice regarding the Regional Convention was given to all chapters and members.
On December 27, 2020, seven members of the 15-member Central Committee purported to hold an emergency meeting. That meeting was invalid because it was called on less than 48 hours' notice and not all Central Committee members were given notice of the meeting. On December 28, 2020, a purported Regional Convention was held. That meeting purported to elect the individual Respondents to the Central Committee.
At the time, Petitioner Tazian was an elected delegate of the San Francisco Chapter for attendance and voting at the Regional Convention. Neither he nor his chapter were given notice of the December 28, 2020 Regional Convention, nor an opportunity to participate in and vote at that meeting.
Petitioners contend that the election was invalid because the Regional Convention was illegal and without effect. Member meetings to elect directors require no less than ten days’ notice, but less than one day’s notice was given. The Regional Convention can only be convened at the noticed invitation of the Central Committee and the Central Committee meeting to call the Regional Convention was not properly noticed and did not have a quorum of members present. Finally, only 11 of the 18 chapters were present whereas the bylaws require two thirds of the gomidehoutiones and gomidehs to be present. As a result, the individual Respondents have improperly been acting as directors of ARFDW-USA by instituting disciplinary proceedings against chapters and members of ARFDW-USA.
Petitioners request the court to require a new election under the auspices of the 15-member Central Committee that was acknowledged in the December 27, 2020, director minutes. For a fair election, Petitioners request the court set up a procedure so that the election will take place under the same circumstances so far as voting power and selection of delegates as it would have on December 28, 2020. Finally, any actions of the improperly elected directors of ARFDW-USA that have changed chapter governance, membership, or changed the selection and number of delegates in any way should be null and void.
B. Applicable Law
1. The Number and Qualification of Directors
Unless such provision is contained in the articles of incorporation (“articles”), in which case it may only be changed by an amendment of the articles, the bylaws of a mutual benefit non-profit corporation (hereinafter, “corporation”) shall set forth the number of directors of the corporation, or the method of determining the number of directors of the corporation, or that the number of directors shall be not less than a stated minimum nor more than a stated maximum with the exact number of directors to be fixed, within the limits specified, by approval of the board or the members in the manner provided in the bylaws. §7151(a).
The bylaws may contain any provisions for the management of the activities and for the conduct of the affairs of the corporation. §7171(c). The articles or bylaws may prescribe the qualifications of the directors. §7221(b). The board, by a majority vote of the directors who meet all of the required qualifications to be a director, may declare vacant the office of any director who fails or ceases to meet any required qualification that was in effect at the beginning of that director’s current term of office. §7221(b).
2. The Use of Delegates
A corporation’s bylaws may provide for delegates having some or all the authority of members. §7152. The bylaws shall set forth delegates’ terms of office, any reasonable method for the delegates’ selection and removal, any reasonable method for calling, noticing, and holding meetings of delegates, and may set forth the manner in which delegates may act by written ballot. §7152. Delegates may only act personally at a meeting or by written ballot and may not act by proxy. §7152. A corporation may provide in its bylaws for voting by its members or delegates on the basis of chapter or other organizational unit, or by region or other geographic grouping. §7153.
3. Special Meetings of the Board of Directors
A minimum of 48 hours’ notice, delivered in person or by telephone, or four days’ notice by first-class mail, is required for a special meeting of the board of directors. §7211(a)(2). The articles or bylaws may not dispense with notice of a special meeting. §7211(a)(2).
Unless otherwise provided in the articles or the bylaws, notice of a meeting need not be given to a director who provided a waiver of notice or consent to holding the meeting or an approval of the minutes thereof in writing, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to that director. §7211(a)(3).
Unless otherwise provided in the articles or the bylaws, a majority of the number of directors authorized in or pursuant to the articles or bylaws constitutes a quorum of the board for the transaction of business. §7211(a)(7).
4. Member Meetings and Voting
a. Notice of Meetings Where Members are Required or Permitted to Act
Whenever members are required or permitted to take any action at a meeting, a written notice of the meeting shall be given not less than ten nor more than 90 days before the date of the meeting to each member who, on the record date for notice of the meeting, is entitled to vote. If notice is given by mail, and the notice is not mailed by first-class, registered, or certified mail, that notice shall be given not less than 20 days before the meeting. §7511(a).
The notice shall state the place, date and time of the meeting, the means of electronic transmission or electronic video screen communication, if any, by which members may participate in the meeting, and in the case of a special meeting, the general nature of the business to be transacted with no other business to be transacted. §7511(a). The notice of any meeting at which directors are to be elected shall include the names of all those who are nominees at the time the notice is given to members. §7511(a). A court may find that notice not given in conformity with these requirements is still valid if given in a fair and reasonable manner. §7511(g).
b. Election of Directors by Written Ballot
Generally, one-third of the voting power, represented in person or by proxy, shall constitute a quorum at a meeting of members. §7512(a). However, a bylaw may set a different quorum. §7512(a).
Unless prohibited in the articles or bylaws, any action which may be taken at a regular or special meeting of members may be taken without a meeting if the corporation distributes a written ballot to every member entitled to vote on the matter. §7513(a).
Directors may be elected by written ballot under this section, where authorized by the articles or bylaws, except that election by written ballot may not be authorized where the directors are elected by cumulative voting pursuant to section 7615. §7513(e). Where directors are to be elected by written ballot and the articles or bylaws prescribe a nomination procedure, the procedure may provide for a closing date for the nominations prior to the printing and distributing of the written ballots. §7513(f).
5. Emergency Actions by the Corporation
An “emergency” means state of emergency proclaimed by a governor or by the President and only so long as a quorum of the corporation’s board of directors cannot be readily convened for action. §7140(m)(5)(D).
During an emergency, the board may not take any action that requires the vote of the members or otherwise is not in the corporation’s ordinary course of business, unless the required vote of the members was obtained prior to the emergency. §7151(g)(2).
In anticipation of or during an emergency, a corporation, in carrying out its activities, can (1) modify lines of succession to accommodate the incapacity of any director, officer, employee, or agent resulting from the emergency and/or (2) relocate the principal office, designate alternative principal offices or regional offices, or authorize the officers to do so as necessary to conduct the corporation’s ordinary business operations and affairs, unless emergency bylaws provide otherwise pursuant to section 7151(g). §7140(m)(1).
During any emergency, a corporation, in carrying out its activities, can (1) give notice to a director or directors in any practicable manner under the circumstances, including, but not limited to, by publication and radio, when notice of a meeting of the board cannot be given to that director or directors in the manner prescribed by the bylaws or section 7211 and/or (2) deem that one or more officers of the corporation present at a board meeting is a director, in order of rank and within the same rank in order of seniority, as necessary to achieve a quorum for that meeting. §7140(m)(2).
In anticipation of or during an emergency, the board may not take any action that requires the vote of the members or is not in the corporation’s ordinary course of business, unless the required vote of the members was obtained prior to the emergency. §7140(m)(3). Any actions taken in good faith in anticipation of or during an emergency binds the corporation and may not be used to impose liability on a corporate director, officer, employee, or agent. §7140(m)(4).
6. Challenge to the Election of Directors
Upon the filing of an action therefor by any director or member, or by any person who had the right to vote in the election at issue, the superior court of the proper county shall determine the validity of any election or appointment of any director of a mutual benefit non-profit corporation. §7616(a).
Upon the filing of the complaint, and before any further proceedings are had, the court shall enter an order fixing a date for the hearing, which shall be within five days unless for good cause shown a later date is fixed, and requiring notice of the date for the hearing and a copy of the complaint to be served upon the corporation and upon the person whose purported election or appointment is questioned and upon any person (other than the plaintiff) whom the plaintiff alleges to have been elected or appointed, in the manner in which a summons is required to be served, or, if the court so directs, by registered mail, and the court may make such further requirements as to notice as appear to be proper under the circumstances. §7617(c).
The court, consistent with the provisions of this part and in conformity with the articles and bylaws to the extent feasible, may determine the person entitled to the office of director or may order a new election to be held or appointment to be made, may determine the validity of the issuance of memberships and the right of persons to vote and may direct such other relief as may be just and proper. §7616(d).
“An action to defeat a corporate election is a broad-based equity action in which the court may examine the entire transaction without being limited to technical or procedural issues and may adjust the rights of the parties to do justice among them.” Goss v. Edwards, (1977) 68 Cal.App.3d 264, 271. The court has broad powers to “examine the entire transaction without being limited to technical or procedural issues and adjust the rights of the parties to do justice among them.” Id. at 271. There is a presumption of legality in the election of directors. See 15 Cal.Jur.3d Corporations §382. As a result, “the burden of proving any irregularity in [an] election of directors rest[s] upon petitioner's shoulders.” Shamel v. Lite Products Sales,¿(1955) 131 Cal.App.2d 33, 36.
“The practical and reasonable construction of the constitution and by-laws of a voluntary organization by its governing board is binding on the membership and will be recognized by the courts”. DeMille v. American Fed. of Radio Artists, (1947) 31 Cal.2d 139, 147.
7. The Statute of Limitations for a Challenge an Election of Directors
An action challenging the validity of any election, appointment or removal of a director or directors must be commenced within nine months after the election, appointment, or removal. §7527(g). If no such action is timely commenced, in the absence of fraud, any election, appointment or removal of a director is conclusively presumed valid nine months thereafter. §7527(g).
C. Statement of Facts
1. Petitioners’ Evidence
The Armenian Revolutionary Federation ("ARF") was founded in 1890 to organize and protect the interests of Armenians in the Ottoman Empire. Kachatourian Decl., ¶4. The ARF was closely affiliated with the short-lived Armenian Republic, which gained independence in 1918, and the ARF has been closely associated with the cause of Armenian independence. Kachatourian Decl., ¶4. Soviet forces invaded Armenia in 1920 and declared it to be a Soviet republic. Kachatourian Decl., ¶4. The ARF was banned, and its leaders expelled by the Soviets. Kachatourian Decl., ¶4.
For the next 70 years, while Armenia was under Soviet control, the ARF transformed itself into a worldwide organization dedicated to preserving the ethnic, social, and cultural identity of Armenians in the diaspora. Kachatourian Decl., ¶4. The ARF, thus, became a decentralized entity. Kachatourian Decl., ¶4. Upon Armenia's independence in 1991 from the Soviet Union, the ARF has re-established some of its presence in Armenia proper. Kachatourian Decl., ¶4.
ARFDW-USA is organized with 18 chapters. Kachatourian Decl., ¶¶ 5-6. Each chapter has its own meetings and activities, and they are part of the corporation. Kachatourian Decl., ¶5. The chapters are known as gomidehoutiune, and each chapter elects a gomideh as its governing entity. Kachatourian Decl., ¶7.
ARFDW-USA is governed by the Central Committee which acts as its board of directors. Kachatourian Decl., ¶8. The Central Committee is elected at the Regional Convention which happens biannually. Kachatourian Decl., ¶8. The election does not occur by the voting of members. Kachatourian Decl., ¶10. Rather, each chapter is assigned a number of delegates based on the total membership of that chapter. Kachatourian Decl., ¶10. Some of the other organizational entities within ARFDW-USA also appoint or elect one or more delegates to attend the Regional Convention. Kachatourian Decl., ¶10. There were 65 voting delegates at the June 2018 Regional Convention. Kachatourian Decl., ¶10.
The Regional Convention in normal times has at least three-months' notice. Kachatourian Decl., ¶12. This gives the chapters time to elect their delegates and determine what issues they want to address. Kachatourian Decl., ¶12. The agenda, which may include any bylaw amendments, is sent to the chapters three months before the Regional Convention so that they can discuss the issues and determine the positions they wish to take. Kachatourian Decl., ¶12.
a. Petitioner Dimejian and Petitioner Boyajian’s Appointment as Directors
Dimejian has been a member of the ARFDW-USA for approximately 40 years and is active in its affairs. Dimejian Decl., ¶2.
Boyajian has been a member of ARFDW-USA since approximately 1991 and is active in its affairs. Boyajian Decl., ¶2.
On September 13, 2019, the Bureau of the Armenian Revolutionary Federation (“Bureau”) sent a letter to ARFDW-USA appointing Petitioner Dimejian, Petitioner Bovajian, and two others as members of the Central Committee. Dimejian Decl., ¶4, Ex. 9; Bovajian Decl., ¶4.
On September 18, the Central Committee issued a letter reluctantly agreeing to accept the four individuals in the letter as members of the Central Committee “to keep order in the ranks of the party.” Dimejian Decl., ¶5, Ex. 10; Bovajian Decl., ¶5. Petitioners Dimejian and Boyajian were recognized as full members of the Central Committee after their appointment. Dimejian Decl., ¶14; Boyajian Decl., ¶14. From that day forward, until December 27, 2019, Dimejian and Bovajian participated in all regards as members of the Central Committee. Dimejian Decl., ¶¶ 6-7, Ex. 11 (minutes illustrating Dimejian and Bovajian’s participation); Bovajian Decl., ¶¶ 6-7.
Petitioners Dimejian and Byajian do not understand how the rogue Central Committee can now claim that they were never members. Dimejian Decl., ¶14; Boyajian Decl., ¶14. They voted at every meeting they attended. Dimejian Decl., ¶14; Boyajian Decl., ¶14. They are even more bothered by how the rogue Central Committee is governing ARFDW-USA by terminating members, barred some chapters from their headquarters, and preventing duly elected gomidehs from controlling chapter bank accounts containing only money raised by the chapter from its members. Dimejian Decl., ¶14; Boyajian Decl., ¶14.
b. Petitioner Tazian’s Role in a Gomideh
Tazian has been a member of the ARFDW-USA since approximately December 1990 and is active in its affairs. Tazian Decl., ¶2. He is a member of the San Francisco Chapter. Tazian Decl., ¶4. The chapters are governed by elected executive boards known as gomidehs. Tazian Decl., ¶4. He has been in the gomideh for the San Francisco Chapter since the 2016-2017 fiscal year and was the gomideh chair in 2019-2021. Tazian Decl., ¶4. Tazian was elected to be the gomideh’s delegate to the 2020 Regional Convention. Tazian Decl., ¶5, Ex. 12.
c. Delays of the 2020 Regional Convention
There was a great deal of uncertainty regarding the 2020 Regional Convention due to the pandemic. Dimejian Decl., ¶10; Boyajian Decl., ¶10; Tazian Decl., ¶9. The Regional Convention was originally set for April 30 through May 3, 2020, which the Central Committee noticed to the membership in a January 9, 2020 letter which also included the agenda for the meeting. Dimejian Decl., ¶10, Ex. 4; Boyajian Decl., ¶10; Tazian Decl., ¶9.
On October 8, 2020, the Central Committee issued circular #52-36 setting the Regional Convention for December 3-6, 2020 and including an agenda. Dimejian Decl., ¶11, Ex. 5; Boyajian Decl., ¶11; Tazian Decl., ¶10.
On December 3, 2020, the Central Committee issued secretarial note #52-162 stating that the Regional Convention meeting on December 3, 2020 would not take place due to a letter received from the Bureau that day. Dimejian Decl., ¶12, Ex. 6; Boyajian Decl., ¶12; Tazian Decl., ¶11. Tazian understood that he would be informed when the Regional Convention would take place. Tazian Decl., ¶11.
On December 6, 2020, the Central Committee issued clerical note #52-163, quoting the Bureau’s letter and cancelling the Regional Convention. Dimejian Decl., ¶13, Ex. 7; Boyajian Decl., ¶13; Tazian Decl., ¶12.
c. Validity of Bylaws
There are two factions within ARFDW-USA, and each contends that a different version of the bylaws are the operative bylaws for the corporation. Dimejian Decl., ¶3, Ex. 1; Boyajian Decl., ¶3; Tazian Decl., ¶3. Respondents -- the group that was allegedly elected at the December 28, 2020 Regional Convention meeting -- claim that the Exhibit 1 bylaws are the operative bylaws. Dimejian Decl., ¶3, Ex. 1; Boyajian Decl., ¶3; Tazian Decl., ¶3.
d. The December 27, 2020 Emergency Meeting and the December 28, 2020 Regional Convention
On December 27, 2020, the Central Committee held an emergency meeting and reported that the Bureau had appointed a Central Committee. Dimejian Decl., ¶8, Ex. 2; Ex. 8.[3] Petitioners Dimejian and Boyajian did not receive notice of the emergency meeting. Dimejian Decl., ¶¶ 8-9; Boyajian Decl., ¶¶ 8-9. The minutes of the meeting state that the San Francisco Chapter and others should not be allowed or invited to the Regional Convention. Tazian Decl., ¶6; see Ex. 2. As the San Francisco Chapter’s duly elected delegate for the Regional Convention, Tazian does not understand how that decision could have been made. Tazian Decl., ¶6.
The Regional Convention took place on December 28, 2020. Dimejian Decl., ¶8, Ex. 3; Boyajian Decl., ¶8; Tazian Decl., ¶7. Petitioners Dimejian, Boyajian, and Tazian did not receive notice of the Regional Convention. Dimejian Decl., ¶¶ 8-9, Ex. 3; Boyajian Decl., ¶¶ 8-9; Tazian Decl., ¶¶ 7, 13. If the San Francisco Chapter had received ten days’ notice of the Convention, Tazian could have attended as the delegate for the gomideh and the chapter might have been able to elect delegates. Tazian Decl., ¶7. However, even with one day’s notice, it would have been difficult to make plans and attend. Tazian Decl., ¶14.
On December 29, 2020, the purportedly newly elected Central Committee sent out a letter, circular #52-037. Dimejian Decl., ¶9, Ex. 13; Boyajian Decl., ¶9; Tazian Decl., ¶¶ 8, 13. This letter reflects that a new Central Committee had been elected. Dimejian Decl., ¶9, Ex. 13; Boyajian Decl., ¶9; Tazian Decl., ¶8. Since Petitioners Dimejian, Boyajian, and Tazian, and some chapters had not been given notice of the emergency Central Committee meeting or of the Regional Convention itself, they do not understand how this can be the case. Dimejian Decl., ¶9; Ex. 13; Boyajian Decl., ¶9; Tazian Decl., ¶¶ 7-8. Tazian does not believe a Regional Convention has ever taken place without notice to all chapters. Tazian Decl., ¶14. The meeting minutes of the Regional Convention show that only 11 of the 18 chapters were present. Tazian Decl., ¶8. It was not until Petitioners received the December 29, 2020, letter did they learn about the emergency meeting and the Regional Convention. Dimejian Decl., ¶9; Boyajian Decl., ¶9; Tazian Decl., ¶8.
2. Respondents’ Evidence[4]
a. Background
ARFDW-USA is a non-profit corporation formed to advance the rights, culture, heritage, and interests of the Armenian community. Ohanian Decl., ¶2. ARFDW-USA was formally incorporated as a mutual benefit corporation under California law in March 2006 and adopted Bylaws to govern the corporation. Ohanian Decl., ¶¶ 3-4; Ex. 1. It has approximately 1,400 members (1,388 as of December 2020) and multiple chapters (gomidehoutiune) in several western states. Ohanian Decl., ¶9. As of December 2020, ARFDW-USA had 17 official chapters. Ohanian Decl., ¶10. ARFDW-USA also has student members who subscribe to student associations and organizations. Ohanian Decl., ¶¶ 4, 11; Ex. 1, Art. 38, Art. 39.
ARFDW-USA is an autonomous organization, which has a membership consisting of Americans of Armenian heritage residing in the Western United States. Ohanian Decl., ¶15. Part of the circumstances out of which the Petition arises relate to the nature of the relationship between ARFDW, on the one hand, and the Armenian Revolutionary Federation (“ARF”), a political party organized under the laws of Armenia, and the ARF’s Bureau, on the other hand. Ohanian Decl., ¶16.
The shared history of the organizations relevant to this matter is as follows. Following the Armenian Genocide, organizations were developed within the diasporic Armenian communities to preserve Armenian heritage. Ohanian Decl., ¶¶ 18-21. The ARF was developed to coordinate amongst different groups of Armenians worldwide. Ohanian Decl., ¶23. Despite their partly similar name and shared ideals, the ARF and ARFDW are separate entities. Ohanian Decl., ¶24.
In August 2012, the Department of Justice (“DOJ”) initiated an investigation regarding ARF’s participation in the activities of ARFDW and whether it would cause ARFDW to register as a foreign agent under federal law. Topalian Decl., ¶3, Ex. 40. This led to a February 3, 2013 letter to DOJ that explained and represented that ARFDW is completely separate and independent from ARF. Topalian Decl., ¶¶ 3-10; Exs. 40-41. Based on these representations, DOJ replied that no foreign registration was required. Topalian Decl., ¶9, Ex. 42.
To ensure the necessary separation between these groups, ARFDW has always relied on organizational decentralization, which means that ARFDW -- and each organization that shares a loose affinity with ARF throughout the world -- operates independently and according to its own laws. Ohanian Decl., ¶25. Neither the Bureau nor ARF has decision-making authority over ARFDW. Ohanian Decl., ¶26.
b. Election of Directors
As set forth in the Bylaws, ARFDW-USA is managed by a board of directors known as the Central Committee. Ohanian Decl., ¶¶ 4-5, Ex. 1, Arts. 46, 48. Every Central Committee member is an unpaid volunteer. Ohanian Decl., ¶6. Central Committee members are elected at a Regional Convention, which is generally held every two years. Ohanian Decl., ¶ 12, Ex. 1, Arts. 40, 47.
c. The 2018 Regional Convention
Commencing June 28, 2018, the ARFDW held its 52nd Regional Convention, in which the following 11 members were elected to the Central Committee, appointed with the following titles and responsibilities: (1) Carmen Ohanian (“Ohanian”), Chairperson, (2) Avedik Izmirlian, External Relations, (3) Garo Ispendjian, Community Representative, (4) Garo Madenlian, Gomideh Relations, (5) Levon Kirakosian, Secretary, (6) Koko Topalian, Treasurer, (7) Razmig Haroun, Advisor, (8) Steve Dadaian, Advisor, (9) Razmig Shirinian, Advisor, (10) Toros Kejejian, Advisor, and (11) Melkon Melkonian, Advisor. Ohanian Decl., ¶¶ 29-30, Ex. 16.
d. The Bureau’s September 2019 Attempted Takeover
In September 2019, the Bureau began a campaign to exert control over ARFDW-USA and wrest it from the democratically elected Central Committee. Ohanian Decl., ¶32. In a September 13, 2019 letter to the Central Committee, the Bureau purported to unilaterally appoint four new members to the Central Committee (Rostom Aintablian, Petitioner Dimejian, Hrayr Garabetian, and Petitioner Boyajian) in addition to the existing 11 elected members. Ohanian Decl., ¶¶ 33-35; Ex. 9. Individual members and chapters were notified of the supposed appointment. Ohanian Decl., ¶37.
The Bureau’s letter and so-called appointments were concerning because they contravened the express terms of the Bylaws, as well as the representations made to DOJ regarding the separation of ARFDW-USA from ARF. Ohanian Decl., ¶38; see generally Topalian Decl. However, as numerous ARFDW-USA members have long-standing relationships with the Bureau, the Central Committee recognized that a quarrel with the Bureau would result in a disruption of ARFDW-USA’s work and create discord in its ranks. As a result, the Central Committee elected to take the most practical approach to resolving this issue. Ohanian Decl., ¶39. As a new election of the Central Committee was imminent and would render the Bureau’s improper actions moot, the Central Committee chose to proceed by scheduling the Regional Convention for the earliest available date. Ohanian Decl., ¶40.
In the meantime, the Central Committee limited any meaningful work to guard against undue influence by the Bureau-appointed Central Committee members. Ohanian Decl., ¶40. Petitioners Boyajian and Dimejian were only allowed to participate in discrete and limited activities. Ohanian Decl., ¶41. They were not provided any material assignments and were not placed on any ARFDW-USA subcommittees. Ohanian Decl., ¶41. They participated in only one Central Committee vote in May 2020. Ohanian Decl., ¶41. There were no other instances in which Petitioners Boyajian and Dimejian voted with the Central Committee. Ohanian Decl., ¶42.
e. Notices for the 2020 Regional Convention
The Central Committee issued numerous notices and correspondence to the chapters and gomidehs of ARFDW-USA regarding efforts to hold a Regional Convention in 2020. Ohanian Decl., ¶43. These notices included deadlines for chapter compliance in selecting delegates for the Regional Convention, as well as the proposed agenda. Ohanian Decl., ¶43.
In January 2020, the Central Committee issued a circular to all chapters and members notifying them that a Regional Convention would be held commencing on April 30, 2020, attaching an agenda, and instructing chapters to hold general meetings (general regional assemblies) to select delegates before April 25, 2020. Ohanian Decl., ¶44, Ex. 4. Gomidehs (local committees) for these chapters were instructed to immediately notify the Central Committee of the dates selected for their general meeting to select delegates. Ohanian Decl., ¶44, Ex. 4.
COVID-19 struck before the April 2020 Regional Convention could be convened. Ohanian Decl., ¶45. Accordingly, on March 24, 2020, the Central Committee issued a memorandum informing chapters and the membership that, due to the pandemic, chapter activities requiring the use of physical centers and meetings would be suspended for two weeks. Ohanian Decl., ¶46, Ex. 17. Additionally, the Regional Convention scheduled for April was also postponed. Ohanian Decl., ¶46, Ex. 17. In the meantime, the Central Committee would focus on engaging with the community and providing a wide range of services to anyone in need or adversely impacted by the pandemic. Ohanian Decl., ¶46, Ex. 17.
On October 8, 2020, due to improvements and trends surrounding the COVID-19 pandemic, the Central Committee issued a new circular which informed members and chapters that the Regional Convention had been rescheduled to commence on December 3, 2020. Ohanian Decl., ¶48, Ex. 5. The letter also detailed health and safety measures that would be taken. Ohanian Decl., ¶48, Ex. 5. The Central Committee noted that the general meetings of the local chapters to select delegates should take place between October 19 and November 23, 2020. Ohanian Decl., ¶48, Ex. 5. In addition to meeting in safe spaces -- including outdoors – the local committees should excuse members who did not feel comfortable attending any meeting. Ohanian Decl., ¶48, Ex. 5. The letter re-circulated the agenda for the Regional Convention. Ohanian Decl., ¶48; Ex. 5.
On November 10, 2020, ARFDW-USA’s counsel sent members a letter that reminded them of the necessity of maintaining separation between ARFDW-USA and the Bureau. Topalian Decl., ¶12, Ex. 43.
Over the next month, four additional circulars were sent to chapters and members relating to the Regional Convention. Ohanian Decl., ¶¶ 49-50, Exs. 18-19. The letters instructed the chapters that the dates for general meetings to elect delegates for the Regional Convention were required to be set immediately and that the chapters needed to inform the Central Committee of the dates by no later than November 19, 2020. Ohanian Decl., ¶¶ 50-51, Exs. 18-19. The letters further instructed that the general meetings to select delegates must occur no later than December 1, 2020 in order to be timely for the December 3, 2020 Regional Convention. Ohanian Decl., ¶¶ 50-51, Exs. 18-19. The Central Committee again included a copy of the agenda for the Regional Convention. Ohanian Decl., ¶¶ 50, 52, Ex. 18.
f. The Chapters Which Failed to Select Delegates
On December 1, 2020, in a coordinated attempt to disrupt the Regional Convention, several chapters, including San Francisco and North Hollywood, notified the Central Committee that they were not holding general meetings to elect delegates. Ohanian Decl., ¶¶ 54-55; Exs. 20 (the gomideh “cannot ask our members to attend an illegal and potentially deadly super spreader event.”), 21.
The San Francisco Chapter’s notification came from Petitioner Tazian. Ohanian Decl., ¶¶ 55-56, Ex. 21. Tazian explained that the San Francisco Chapter had not met due to various COVID-19 issues. Ohanian Decl., ¶¶ 55-56, Ex. 21. However, when asked if the San Francisco Chapter sought an exemption from meeting in-person or taken other measures to facilitate the selection of delegates, Tazian merely responded that the Central Committee was aware of the cancellation and was notified of the chapter’s decision. Ohanian Decl., ¶¶ 55-56; Ex. 21.
While Tazian argued that his chapter had not convened based on the Central Committee’s requirement that the chapters meet in-person, no such instruction came from the Central Committee. Rather, the instruction was made by the Bureau through its purported representative, Viken Yacoubian. Ohanian Decl., ¶57; Ex. 22. These directions were contrary to the Central Committee’s earlier instruction that anyone unable or unwilling to attend any meetings be deemed excused. Ohanian Decl., ¶57, Ex. 22.
The San Jose Chapter convened a meeting but failed to select delegates. Ohanian Decl., ¶58.
The Burbank Chapter also tried to meet but failed to have a quorum. Ohanian Decl., ¶58.
None of these chapters timely elected delegates for the Regional Convention. Ohanian Decl., ¶58.
g. The Central Committee’s Delegate
Throughout ARFDW’s history, nominees for the Central Committee have been nominated at the Regional Convention. Ohanian Decl., ¶13. Additionally, the Central Committee has always designated its Chairperson as the Central Committee’s delegate at the Regional Convention. Ohanian Decl., ¶14. As of December 2020, the Central Committee’s Chair Ohanian was designated as the Central Committee’s delegate for the December 2020 Regional Convention. Ohanian Decl., ¶14.
f. The Bureau’s Cancellation of the December 3, 2020 Regional Convention
On December 3, 2020, the day of the scheduled Regional Convention, the Bureau purported to instruct the Central Committee that it was unilaterally cancelling the Regional Convention, throwing ARFDW-USA into disarray as chapters and members received conflicting instructions how to proceed. Ohanian Decl., ¶¶ 59-60, Ex. 23; Topalian Decl., ¶10.
That same day, the Central Committee circulated a letter notifying the chapters that certain chapters had not met as requested and therefore the Regional Convention would again be postponed. Ohanian Decl., ¶¶ 61-62, Ex. 6. A large majority of delegates had already been voted on 13 of 18 chapters) in accordance with the Central Committee’s instruction. Ohanian Decl., ¶¶ 62-63, Ex. 6. Three chapters had decided not to hold meetings and two chapters had tried to hold meetings but did not have a majority present. Ohanian Decl., ¶64, Ex. 6.
The Central Committee then attempted to reschedule the Regional Convention to a date so all chapters could conduct meetings and attend. Ohanian Decl., ¶64.
g. The Bureau’s December 27, 2020 Appointment of Directors
On December 27, 2020, the Bureau issued a letter directly to ARFDW-USA’s membership claiming to dissolve the Central Committee and unilaterally appoint a new Central Committee to run ARFDW-USA without a vote and in contravention of ARFDW-USA’s Bylaws. Ohanian Decl., ¶¶ 65-66, Ex. 8; Topalian Decl., ¶10; Izmirlian Decl., ¶3.
The Bureau’s newly appointed Central Committee would be: (1) Rostom Aintablian, (2) Knar Kitabjian, (3) Gev lskajyan, (4) Hrayr Garabetian, (5) Miganoush Melkonian, (6) Mkhitar Moradian, (7) Vicken Babikian, (8) Petitioner Boyajian, (9) Vicken Sosikian, (10) Steve Dadaian, and (11) Melkon Melkonian.[5] Ohanian Decl., ¶¶ 66-67, Ex. 25. The Bureau also sent a letter to these individuals purporting to confirm their appointments. Ohanian Decl., ¶68; Ex. 25. This new unlawful edict from the Bureau led to further chaos within the organization. Ohanian Decl., ¶69.
h. The Central Committee’s December 27, 2020 Emergency Meeting
The Central Committee’s goal throughout 2020 was to hold a Regional Convention to elect the next Central Committee in accordance with the Bylaws. Ohanian Decl., ¶70; Topalian Decl., ¶10. Yet, the Bureau was doing everything it could to prevent ARFDW-USA from holding a Regional Convention so that it could obtain control. Ohanian Decl., ¶70.
Fearing a full-scale coup by the Bureau, the Central Committee immediately moved to convene an emergency meeting that same day, December 27, 2020. Ohanian Decl., ¶71. The Central Committee believed in good faith that an emergency meeting was necessary to avoid an immediate takeover of ARFDW-USA by the Bureau and its agents. Ohanian Decl., ¶71; Mgrditchian Decl., ¶6; Kirakosian Decl., ¶6; Izmirlian Decl., ¶¶ 3-4. The Central Committee knew that the Bureau had no right to do what it was attempting and was concerned that the Bureau intended to take ARFDW-USA’s money and property for itself. Ohanian Decl., ¶71; Kirakosian Decl., ¶6; Topalian Decl., ¶13.
Seven members of the 11-member Central Committee attended the December 27, 2020, emergency meeting: (1) Chairperson Ohanian, (2) Avedik Izmirlian, (3) Garo Ispendjian, (4) Levon Kirakosian, (5) Koko Topalian, (6) Razmig Shirinian, (7) Toros Kejejian. Ohanian Decl., ¶¶ 72, 74, Ex. 2; Izmirlian Decl., ¶4.
All properly elected members of the Central Committee who were not actively engaged in an attempted coup of the ARFDW-USA were given notice of the emergency Central Committee meeting on December 27, 2020. Ohanian Decl., ¶¶ 73, 74; Ex. 2. The four persons whom the Bureau had purported to appoint to the Central Committee were not invited to the emergency meeting because they were not actual members of the Central Committee and were not entitled to notice. Ohanian Decl., ¶73. They were also not invited because they were aligned with the Bureau which had just initiated an attempt to disband the elected Central Committee and appoint an entirely new Central Committee. Ohanian Decl., ¶73. Another member of the Central Committee who also was named by the Bureau to its new imposter Central Committee was not invited to the emergency meeting due to a conflict of interest. Ohanian Decl., ¶73.
The Central Committee worked in good faith to attempt to preserve the interests of the organization, fearing disastrous consequences in the Board did not take immediate and necessary action. Ohanian Decl., ¶75, Ex. 2; Topalian Decl., ¶13; Izmirlian Decl., ¶5. The minutes reflect the genuine concern of the members of the Central Committee and their realization of how far the Bureau was willing to go to obtain control of the ARFDW-USA. Ohanian Decl., ¶¶ 74-75; Ex. 2.
At the December 27 emergency meeting, the Central Committee members unanimously voted that the Regional Convention would commence the following day, on December 28, 2020. Ohanian Decl., ¶ 76; Ex. 2; Izmirlian Decl., ¶4. The Central Committee members then split duties to notify those chapters that had elected delegates to attend. Ohanian Decl., ¶ 76, Ex. 2.
The Central Committee members acted in good faith and did the best they could to address the situation properly and fairly. Ohanian Decl., ¶71; Mgrditchian Decl., ¶6. Members of the Central Committee believe that their actions in calling the Regional Convention were proper and saved ARFDW-USA and its members from an unlawful attempted coup. Ohanian Decl., ¶71; Kirakosian Decl., ¶6; Izmirlian Decl., ¶¶ 3-5.
i. The December 28, 2020 Regional Convention
On December 28, 2020, ARFDW-USA held its Regional Convention. Ohanian Decl., ¶¶ 77-78; Ex. 3; Keuleyan Decl., ¶15; Mgrditchian Decl., ¶7; Kirakosian Decl., ¶7; Topalian Decl., ¶11. It proceeded similarly to other Regional Conventions and was valid under the Bylaws. Keuleyan Decl., ¶15; Kirakosian Decl., ¶7; Topalian Decl., ¶14.
The North Hollywood and San Francisco chapters that refused to elect delegates were not in attendance. Nor were the Burbank and San Jose chapters that tried but were not able to select delegates. Ohanian Decl., ¶¶ 78-79; Ex. 3. While the Shant Student Association did select delegates, it advised the Central Committee that it would not be sending any delegates to the Regional Convention for fear of retribution by the Bureau. Ohanian Decl., ¶80.
A number of chapters and the Shant Student Association were in arrears on their dues obligation. Kirakosian Decl., ¶¶ 3-4 (Burbank: $127,983.00, North Hollywood: $187,129.00, San Jose: $69,937.00, San Francisco: $9,595.00, Torrance: $20,185.00, Orange County: $1,500, Shant Student Association: $107,865.00).
The Regional Convention commenced without their participation, and by authority of the Central Committee under the Bylaws it was determined that a quorum existed. Ohanian Decl., ¶81. More than 2/3 of the chapters and gomidehs that elected delegates were present for the Regional Convention with more than a simple majority of delegates present. Ohanian Decl., ¶82; Keuleyan Decl., ¶15; Kirakosian Decl., ¶7; Topalian Decl., ¶14. The election proceeded in good faith and without any procedural irregularities. Keuleyan Decl., ¶15; Mgrditchian Decl., ¶7; Kirakosian Decl., ¶7; Topalian Decl., ¶14.
Eleven out of 13 chapters that had not refused or failed to select delegates and seven of 13 potentially eligible gomidehs (local committees) participated. Ohanian Decl., ¶83. A total of 39 delegates participated out of a possible 53 delegates, including the Central Committee’s delegate. Ohanian Decl., ¶83.
The meeting was streamlined and conducted over the course of a single day rather than the traditional 3-day meeting. Ohanian Decl., ¶84; Mgrditchian Decl., ¶7. All of the necessary business of a Regional Convention was conducted. Ohanian Decl., ¶¶ 78, 84; Ex. 18. Central Committee members were nominated, and a vote was conducted, as has been the procedure at every prior Regional Convention. Ohanian Decl., ¶85. The newly elected Central Committee is composed of (1) Ohanian, (2) Garo Ispendjian, (3) Harut Mgrditchian, (4) Koko Topalian, (5) Vahan Bezdikian, (6) Alik Ourfalian, (7) Levon Kirakosian, (8) Toros Kejejian, (9) Sako Berberian, (10) Shahen Derderian, (11) Arto Keuleyan. Ohanian Decl., ¶¶ 85-86. Following the vote, the ARFDW-USA local chapters were informed of the Central Committee elections. Ohanian Decl., ¶87.
j. The Bureau’s Competing Election
At the same time, the Bureau’s unauthorized Central Committee (composed of former members of the Central Committee, including Steve Dadaian and Melkon Melkonian, as well as Petitioner Boyajian) sent their own letter to ARFDW-USA’s members on December 31, 2020 attempting to confirm their appointment by the Bureau. Ohanian Decl., ¶88-89; Ex. 26. The letter even attempted to give the individual chapters direction for conducting meetings amongst themselves. Ohanian Decl., ¶¶ 88-89; Ex. 26. The letter states that prior Bureau appointee Rostom Aintablian is Chairman and Petitioner Stepan Boyajian is intraorganizational liaison, and purports to inform ARFDW-USA membership that they are the new duly elected Central Committee. Ohanian Decl., ¶89; Ex. 26.
k. The Post-Convention Misconduct
(i). The Bureau’s Excommunication of the Central Committee
On January 3, 2021, the Bureau’s Central Committee, communicating with all ARFDW-USA chapters and members, purported to excommunicate the entire recently elected Central Committee and any persons rejecting the Bureau’s assertion of authority to appoint an entirely new Central Committee, according to fake Bylaws. Ohanian Decl., ¶¶ 91-92, Ex. 27.
(ii). Fraudulent Transfers and Theft
When those efforts failed, Daron Kachatourian and other members of the Bureau’s Central Committee set up new fake corporations with conspicuously similar names to impersonate ARFDW-USA. Ohanian Decl., ¶¶ 93-95; Exs. 28-29. This included stealing the funds of ARFDW-USA’s affiliate, the Armenian Cultural Foundation (“ACF”) and soliciting ARFDW-USA’s membership and donors. Ohanian Decl., ¶93; Keuleyan Decl. ¶¶ 3-14.
On April 12, 2021, Petitioner Tazian facilitated the theft of $100,000 from ACF for a newly formed corporation designed to compete with ARFDW-USA. Ohanian Decl., ¶¶ 96, 98, Ex. 38 (Tazian’s declaration in a federal RICO action); Keuleyan Decl., ¶¶ 3-14. Certain individuals in league with the Bureau and with direct access to bank accounts belonging to ACF had transfers and withdrawals initiated from ACF’s chapter bank accounts via wire transfer and cashiers’ checks in the amount of $612,000 for the benefit of the Bureau’s Central Committee. Keuleyan Decl., ¶3. Hundreds of thousands of dollars were also stolen from ACF’s other chapter bank accounts. Ohanian Decl., ¶97; Keuleyan Decl., ¶¶ 4-6 (unauthorized transfers made from ACF’s San Francisco,[6] La Crescenta,[7] and Orange County[8] chapter). ACF did not authorize these withdrawals. Keuleyan Decl., ¶12. The individuals who facilitated these thefts, including Tazian, admitted to doing so. Keuleyan Decl., ¶¶ 13-14, Ex. 38.
(iii). Social Media Takeover
The newly formed fake corporations also stole ARFDW-USA’s social medial profile and impersonated the organization online. Ohanian Decl., ¶99. ARFDW-USA’s Facebook page was created on January 11, 2013. Ohanian Decl., ¶100.
In January 2021, the Bureau’s Central Committee took over the Facebook page and the authorized users on the Central Committee were removed as administrators from the Facebook account. Ohanian Decl., ¶101. As of July 6, 2021, the Facebook profile lists the fake corporation, Armenian Revolutionary Federation WUSA, Inc., as the page’s proprietor. Ohanian Decl., ¶¶ 102-03, Ex. 30.
(iv). Court Proceeding
The Bureau’s Central Committee attempted to substitute itself for ARFDW-USA as the beneficiary of a decedent’s estate in an action pending in San Francisco Superior Court. Ohanian Decl., ¶105, Ex. 31.
In early 2021, ARFDW-USA and its affiliate filed a federal RICO lawsuit in the Central District of California, Case No. 2:21-CV-05594-DS-RAO. Ohanian Decl., ¶107. On November 24, 2021, the court found that ARFDW-USA and its affiliate stated valid RICO claims against the defendants, including two of the three Petitioners in this action. Ohanian Decl., ¶107.
(v). Threats
Central Committee members have received threatening text messages. Mgrditchian Decl., ¶¶ 3-5; Ex. 39. Persons affiliated with the Bureau and the Bureau’s Central Committee physically disrupted ARFDW-USA meetings and harassed ARFDW-USA members. Bezdikian Decl., ¶¶ 3-12.
Specifically, on February 26, 2021, the Glendale Chapter’s election to select its gomideh (local committee) was disrupted by Bedig Kazandjian (“Kazandjian”), Miganoush Melkonian, and Hovig Saliba, and others. Bezdikian Decl., ¶¶ 8-9. They went to the tent before the meeting and threw carefully set tables and chairs upside down, removed paperwork for the vote, shutdown the electricity to the tent, and destroyed sound equipment. Bezdikian Decl., ¶9. They also stood harassed and intimidated Glendale Chapter members from participating in the vote. Bezdikian Decl., ¶10.
On February 28, 2021, a locksmith hired to change the locks to allow the newly elected executive committee of Glendale access to the property and to prevent those who had attacked the February 26 meeting from entering. Bezdikian Decl., ¶12. Upon entry into the property, they found equipment had been stolen, including computers, as well as all organizational documents, financial records, checkbooks, petty cash, and the keys to the building. Besdikian Decl., ¶12. Security footage revealed that on February 27, 2021, at 6:04 pm, Kazandjian was on the premises, entered the electrical room of the building and at 6:06 pm, and turned off the security cameras to conceal the theft and identities of the parties involved. Bezdikian Decl., ¶12. The cameras were turned back on an hour later at 7:09 pm. Bezdikian Decl., ¶12.
(vi). Bureau’s 55th Regional Convention
In the summer of 2021, the Bureau’s Central Committee convened their own so-called 55th Regional Convention. Ohanian Decl., ¶¶ 108-12, Ex. 32-34. It purported to elect a new Central Committee, including Petitioners Boyajian and Tazian, and Daron Kachatourian. Ohanian Decl., ¶¶ 108, 110; Ex. 33.
3. Reply Evidence[9]
a. Petitioners Boyajian and Dimejian
In 2019, Petitioners Boyajian and Dimejian were appointed to the Central Committee by the ARF Bureau. Suppl. Boyajian Decl., ¶2; Ex. 9; Suppl. Dimejian Decl., ¶2. Between September 2019 and throughout December 2020, Petitioners Boyajian and Dimejian held themselves out and were accepted as a member of the Central Committee with full rights and obligations, including voting. Suppl. Boyajian Decl., ¶4, Ex. 49; Suppl. Dimejian Decl., ¶4.[10] They participated in discussions and the decision-making process and represented the Central Committee at organizational meetings and community events, including chapter general meetings. Suppl. Boyajian Decl., ¶3; Ex. 10; Suppl. Dimejian Decl., ¶3; Madenlian Decl., ¶¶ 12-15; Ex. 49; Melkonian Decl., ¶¶ 7-12.
b. Invalid December 2020 Meetings
In December 2020, a minority group of the Central Committee held an unsanctioned emergency meeting wherein they purported to call for a new Regional Convention. Suppl. Boyajian Decl., ¶5; Suppl. Dimejian Decl., ¶5. Petitioners and other Central Committee members were not invited to such meetings and were not aware of such a meeting taking place. Suppl. Boyajian Decl., ¶5; Suppl. Dimejian Decl., ¶5; Madenlian Decl., ¶¶ 10, 18-22.
c. Members of the Central Committee Not Receiving Notice
Garo R. Madenlian (“Madenlian”) was elected to the Central Committee for the 2018-2020 term at the June 2018 Regional Convention, having received 2/3 of the votes during the first round. Madenlian Decl., ¶6. He was chosen by the Central Committee as one of its executive board members to act as the official organizational representative of the Central Committee and liaison to all chapters. Madenlian Decl., ¶6. Unbeknownst to Madenlian, seven of the 15 Central Committee members (less than half) gathered secretly and decided to hold a Regional Convention the following day. Madelian Decl., ¶¶ 8-11.
In July 2018, Melkon Melkonian (“Melkonian”) was elected as a member of the 11-person Central Committee by the delegates of the Regional Conference. Melkonian Decl., ¶2. He served as a member of that body until 2020. Melkonian Decl., ¶2. During his time as a Central Committee member, he represented the Central Committee at numerous organizational meetings, community functions, and events. Melkonian Decl., ¶2. He was also responsible for several committees and task forces as a Central Committee member. Melkonian Decl., ¶2.
d. Chapters and Groups Excluded
The Central Committee never decided at any board meeting to exclude any chapter from participating in the Regional Convention based on outstanding dues as such a decision would be highly unusual and unprecedented. Madenlian Decl., ¶¶ 26-29. There is no documentation of a decision that mentions an excuse for the chapters that were in arrears and who participated in the December 28, 2020 gatherings. Madenlian Decl., ¶30. The custom and practice was to always allow all chapters to participate regardless of arrears. Madenlian Decl., ¶30.
(i). Glendale Chapter
Bedig Kazandjian (“Kazandjian”) is a member of ARFDW-USA for over 35 years, since the mid-1980s. Kazandjian Decl., ¶2. He was elected to the gomideh of the Glendale Chapter in August 2019 and was chosen by the board to be its chairperson. Kazandjian Decl., ¶3. He served in this capacity through and following December 2020. Kazandjian Decl., ¶3. As chapter chairperson, he was responsible for leading the chapter's regular activities, chairing membership meetings, and signing official documents. Kazandjian Decl., ¶4.
At the instruction of the Central Committee, the chapter attempted to convene a general meeting on December 1, 2020 to elect delegates for the Regional Convention scheduled for December 3, 2020. Kazandjian Decl., ¶5; Ex. 18 (Secretarial Note 52-16). The gathering on December 1, 2020 did not have a quorum and was not able to elect delegates. Kazandjian Decl., ¶5. Several members who attended the gathering decided to select delegates anyways, something that was against the chapter’s practice and bylaws. Kazandjian Decl., ¶5.
A Regional Convention did not take place on December 3, 2020. Kazandjian Decl., ¶6. Subsequently, the gomideh wrote to the Central Committee informing it that if a future Regional Convention were to be scheduled, the chapter would convene a new general meeting and elect delegates. Kazandjian Decl., ¶6, Ex. 52.
On December 10, 2020, the Central Committee responded by recognizing that the December 1, 2020 gathering was not valid and acknowledging that if/when a Regional Convention is scheduled, the chapter would convene a new chapter general meeting and elect its delegates. Kazandjian Decl., ¶7; Ex. 53.
The chapter’s gomideh was never informed of the December 28, 2020 Regional Convention and the individuals who purported to represent the Glendale Chapter, Garo Eshegian, Lucine Haroutunyan, Meghrik Yedalian, and Karekin Karazian were never legitimately elected. Kazandjian Decl., ¶8. Furthermore, the chapter’s gomideh never formally selected its gomideh delegate, and Vahan Bezdikian seems to have appointed himself unilaterally. Kazandjian Decl., ¶8.
During the 2018-2019 fiscal year, the Glendale Chapter’s dues owed to the Central Committee amounted to $72,450, and it paid $63,000. Kazandjian Decl., ¶9; Ex. 54. During the 2019-2020 fiscal year, the chapter dues amounted to $74,860, of which the chapter paid $20,000. Kazandjian Decl., ¶9; Ex. 54. Currently, the total outstanding balance owed to the Central Committee is $64,855. Kazandjian Decl., ¶9; Ex. 54.
During the time Kazandjian served on the gomideh, he was never informed by the Central Committee that the chapter's failure to completely pay its debt would result in delegates or their chapter being excluded from participating in on voting at a Regional Convention. Kazandjian Decl., ¶10. Kazandjian has attended over ten different Regional Conventions and at no time was any delegate or chapter excluded from participating or voting based on its failure to pay its debt to the Central Committee. Kazandjian Decl., ¶11.
On March 27, 2021, Respondents sought to terminate Kazandjian’s membership from the ARFDW-USA and issued an edict to the entire membership that he was expelled from the ranks in accordance with Article 192 sections a, b, and d of the Bylaws. Kazandjian Decl., ¶14; Ex. 55.
(ii). San Fernando Valley Chapter
Rafi Kourounian (“Kourounian”) is a member of ARFDW-USA for nearly 40 years, since 1982. Kourounian Decl., ¶2. He was elected to the gomideh of the San Fernando Valley Chapter in July 2019 and was chosen by the board to be the chapter Treasurer in November 2019. Kourounian Decl., ¶3. As the chapter Treasurer, he was responsible for performing the financial transactions decided by the gomideh meetings, to have a ledger where the income and expenses of the gomideh were clearly recorded, and to sign all paperwork related to the financial operations. Kourounian Decl., ¶4. He served in this capacity through and following December 2020. Kourounian Decl., ¶3.
During the 2018-2019 fiscal year the chapter dues owed to the Central Committee amounted to $44,800, of which it paid $35,000. Kourounian Decl., ¶5. During the 2019-2020 fiscal year, the chapter dues amounted to $45,220, of which it paid $21,500. Kourounian Decl., ¶5. Currently, the balance owed to the Central Committee from the San Fernando Valley Chapter is $35,020. Kourounian Decl., ¶5; Ex. 50. Kourounian has not received any balance details or requests for payment since then. Kourounian Decl., ¶5.
During the time Kourounian served on the gomideh, he was never informed by the Central Committee that the chapter's failure to pay its debt would result in delegates or the chapter being excluded from participating or voting in any Regional Convention. Kourounian Decl., ¶6. Kourounian has attended over five different Regional Conventions and at no time was any delegate or chapter excluded from participating or voting in the Regional Convention based on their failure to completely pay their debt to the Central Committee. Kourounian Decl., ¶7.
(iii). Shant Student Association (“SSA”)
Nare Kupelian (“Kupelian”) was elected to the SSA executive board (gomideh) most recently in August 2019 and was chosen by the board to be the chapter chairperson in November 2019. Kupelian Decl., ¶4. He served in this capacity until September 2021. Kupelian Decl., ¶4. As an executive board member of the SSA, Kupelian is familiar with and has access to the Chapter's archives and financial records. Kupelian Decl., ¶5.
On October 8, 2020, Kupelian received Central Committee Circular 52-036 informing SSA about the 55th Regional Convention and directing executive boards to convene chapter general meetings between October 19 and November 23, 2020. Kupelian Decl., ¶6; Ex. 5, Ex. 56. An agenda for the 55th Regional Convention was affixed to the letter. Kupelian Decl., ¶6.
On November 22, 2020, Kupelian received a secretarial note (Exhibit 59) from the Central Committee confirming the Regional Convention was set to begin on December 3, 2020 and would not be rescheduled. Kupelian Decl., ¶7, Exs. 58.
Ohanian manipulated the SSA's status as a chapter and tried to deny its right to attend the Regional Convention. Kupelian Decl., ¶8. Ohanian followed up with Kupelian through text messages on October 27, November 22, November 27, and November 29, 2020, about the dates of the chapter general meeting, emphasizing the importance of having quorum and completing the meeting in a timely manner. Kupelian Decl., ¶8; Ex. 60.
On November 16, 2020, SSA convened its general meeting. Kupelian Decl., ¶9; Ex. 61. SSA completed the general meeting on November 30, 2020. Kupelian Decl., ¶9; Ex. 61. The chapter elected delegate Hrach Avedissian. Kupelian Decl., ¶9; Ex. 61. Additionally, Hovig Zaki was elected as the delegate on behalf of the executive board (gomideh). Kupelian Decl., ¶9; Ex. 61.
After December 3, 2020, the gomideh did not receive any new information about an impending Regional Convention. Kupelian Decl., ¶10.
During the time Kupelian has served on the gomideh, he was never informed by the Central Committee that the SSA's failure to completely pay its debt would result in delegates or their chapter being excluded from voting in any Regional Convention. Kupelian Decl., ¶11. As of December 26, 2020, the Central Committee had never discussed excluding the SSA from any Regional Convention for any reason. Madenlian Decl., ¶34.
In fact, the SSA was invited to participated in and voted at the 52nd Regional Convention held from June 28, 2018 to July 1, 2018. Kupelian Decl., ¶12; Ex. 62. The chapter’s delegates participated in the election for Central Committee at the conclusion of the Regional Convention. Kupelian Decl., ¶12; Ex. 62. Laleh Pakradouni attended, participated, and voted as the delegate on behalf of the Chapter’s executive board. Kupelian Decl., ¶12; Ex. 62. Further, at the time of the 2018 Regional Convention, SSA owed the Central Committee over $80,000. Kupelian Decl., ¶13. However, this did not prevent its delegates from participating in and voting at the Regional Convention. Kupelian Decl., ¶13.
(iv). San Francisco Chapter
Tazian was never informed by the Central Committee that the San Francisco Chapter's failure to completely pay its debt would result in delegates or their chapter being excluded from participating in on voting in any Regional Convention. Suppl. Tazian Decl., ¶4. Tazian has attended at least ten different Regional Conventions over the years and at no time was any delegate or chapter excluded from participating or voting based on its failure to completely pay its debt to the Central Committee. Suppl. Tazian Decl., ¶5.
In 2020, the Central Committee noticed and invited the chapter to the Regional Convention. Suppl. Tazian Decl., ¶6. This happened on numerous occasions due to the Regional Convention being postponed. Suppl. Tazian Decl., ¶6. The chapter received notice several times, the last being for December 3, 2020. Suppl. Tazian Decl., ¶6.
On November 30, 2020, the chapter executive board (gomideh) held a meeting and Tazian was elected to be the 2020 Regional Convention delegate for the gomideh. Suppl. Tazian Decl., ¶7. On December 1, 2020, the Central Committee was informed of this decision. Suppl. Tazian Decl., ¶8; Ex. 12. Neither Tazian, nor the chapter received a response from the Central Committee. Suppl. Tazian Decl., ¶8.
Tazian was never informed of the Regional Convention held on December 28, 2020. Suppl. Tazian Decl., ¶9. Further, the Central Committee never informed him that he could attend the Regional Convention by Zoom. Suppl. Tazian Decl., ¶9. Had Tazian been notified of the Zoom option he could have attended the Regional Convention. Suppl. Tazian Decl., ¶9.
The Central Committee did not allow the San Francisco Chapter to conduct its general meeting via Zoom to elect delegates for the 2020 Regional Convention. Suppl. Tazian Decl., ¶10. Instead, the Central Committee required that such meetings be conducted in person. Suppl. Tazian Decl., ¶10. Due to COVID-19 restrictions, the chapter was unable to convene a general meeting and elect delegates for the 2020 Regional Convention. Suppl. Tazian Decl., ¶10.
e. Validity of Bylaws
The operative set of Bylaws is the document last amended and ratified at the 2018 Regional Convention which contains 225 articles. Suppl. Boyajian Decl., ¶7, Ex. 48; Suppl. Dimejian Decl., ¶7; Kachatourian Decl., ¶4; Kazandjian Decl., ¶12; Madenlian Decl., ¶3; Melkonian Decl., ¶¶ 4-5. As recent as August 3, 202, the Central Committee office sent an email to all Chapters attaching the most recent version of the Bylaws and instructing the Chapter executive boards to use them and distribute copies to all members. Kazandijian Decl., ¶12; Ex. 51; Madenlian Decl., ¶3.
Respondents have presented a second set of fake Bylaws containing only 103 articles. Suppl. Boyajian Decl., ¶8; Suppl. Dimejian Decl., ¶8; Kachatourian Decl., ¶5; Kazandjian Decl., ¶13; Madenlian Decl., ¶4; Melkonian Decl., ¶6. This second set has never been ratified at any meeting by any elected body, has never been distributed to the membership, and has never been operational. Suppl. Boyajian Decl., ¶8; Suppl. Dimejian Decl., ¶8; Kachatourian Decl., ¶5; Kazandjian Decl., ¶13; Madenlian Decl., ¶4; Melkonian Decl., ¶6. In fact, most of ARFDW-USA’s membership had never known of its existence until this lawsuit. Suppl. Boyajian Decl., ¶8; Suppl. Dimejian Decl., ¶8; Kachatourian Decl., ¶5; Kazandjian Decl., ¶13; Madenlian Decl., ¶4; Melkonian Decl., ¶6.
f. Relief Sought by Petitioners
The alternative Bylaws were only mentioned to show that there are two factions in ARFDW-USA and to provide some explanation for why ARFDW-USA followed the Bureau in the past. Second Suppl. Dimejian Decl., ¶3. It will be in ARFDW-USA's best interest to have a fair transparent election. Second Suppl. Dimejian Decl., ¶4. The December 28, 2020 election and the events leading to it have shown there is great discord in ARFDW-USA with two passionate factions and some members in the middle trying to avoid a full on corporation conflict. Second Suppl. Dimejian Decl., ¶4. The best way to resolve this dispute is to have a fair and free election. Second Suppl. Dimejian Decl., ¶4. It will require a new election of delegates by all the chapters with all members fully aware of what has taken place and what is at stake in this election. Second Suppl. Dimejian Decl., ¶4.
Chapter membership is determined by home zip codes. Second Suppl. Dimejian Decl., ¶5. Over the years some members have moved to chapters outside of their area and that should be addressed before the election of delegates by the chapters. Second Suppl. Dimejian Decl., ¶5. Petitioners are not seeking some sort of gerrymandering to rig the election. Second Suppl. Dimejian Decl., ¶5. If there is any gerrymandering, it has already been done with people moving from safe chapters to closely split chapters to try to control the majority vote of that chapter. Second Suppl. Dimejian Decl., ¶5.
The evidence from both sides shows getting delegates elected to the 2020 Central Committee was a difficult task due to the pandemic. Second Suppl. Dimejian Decl., ¶6. The December 28, 2020 election was anything but fair. Second Suppl. Dimejian Decl., ¶6. Now that all members are aware of the dispute and the actions that all sides have taken, this is the best chance for peace in ARFDWUSA is a new election with new election of chapter delegates. Second Suppl. Dimejian Decl., ¶6.
D. Analysis
Petitioners challenge the validity of the December 28, 2020 Regional Convention election of Central Committee members. Petitioners argue that ARFDW-USA is in a battle for control between two factions, one that views the Bureau as a threat and the other that recognizes its control. In the face of the Bureau’s action, Respondents held an emergency meeting of the Central Committee on less than statutory notice and only invited persons from their faction. They then invited their faction to a “member meeting” called on less than statutory notice and without invitation to all those entitled to attend. This meeting led to an overwhelming vote in favor of the 11 nominees picked by Respondents, five of whom were on the previous Central Committee. Pet. Op. Br. at 14.
Petitioners add that, although not relevant at this stage of the case, Respondents have removed individuals from membership, barred some chapters from their headquarters, stripped some chapters of control of their bank accounts, and taken other actions to solidify their power. Petitioners conclude that this behavior shows that the court will need to maintain jurisdiction of a new election. Members that have been terminated must be reinstated for the purpose of determining the number of delegates each chapter can elect and the election of those delegates.[11] The election also must be overseen by the 15-member board that previously existed. If not, Respondents will simply preordain the election results. Pet. Op. Br. at 15.
The validity of the election of the Central Committee at the December 28, 2020 Regional Convention is the only issue for the court to decide. All other matters either are background or are a prelude/postlude to this issue. For the election issue, the parties do not dispute that neither the ARF nor its Bureau control ARFDW-USA, which is an independent entity. Nor is there any dispute that the pertinent Bylaws for purposes of this challenge are contained in Exhibit 1 of the parties’ joint trial exhibits. See Pet. Op. Br. at 2.
1. Standing
Respondent ARFDW-USA argues that Petitioners lack standing to challenge the election of Central Committee members.
Section 7616 states in relevant part:
“Upon the filing of an action therefor by any director or member or by any person who had the right to vote in the election at issue, the superior court of the proper county shall determine the validity of any election or appointment of any director of any corporation.” §7616.
According to ARFDW-USA, Petitioners lack standing under section 7616 as they had no right to vote in the election. Only a director, member, or person who had the right to vote in the election at issue may challenge a director election. See e.g., §709 (conferring standing only on a “shareholder or [ ] any person who claims to have been denied the right to vote”); see also Morrical v. Rogers, (2013) 220 Cal. App. 4th 438, 453 (the Legislature limited standing for section 709 challenges to shareholders). Entity Opp. at 10.
ARFDW-USA notes that neither of Petitioners Dimejian and Boyajian had a right to vote at the Regional Convention. They claim to be Central Committee members via the Bureau’s September 19, 2019 edict. But the Bylaws provide that the Bureau has no authority to impose any obligations on ARFDW. Ex 1, p. 11, Art. 70, 71, 78. Additionally, Dimejian and Boyajian were not democratically elected at a Regional Convention, and their appointment would cause the Central Committee to exceed the maximum number of 11 members in contravention of the Bylaws. Ex. 1, p. 9, Art. 47. See §7151 (bylaws shall set forth the minimum and maximum of directors). Their supposed appointment did not even occur at a time when the biennial election of Central Committee members was scheduled to take place. Accordingly, there are no circumstances under which Petitioners Dimejian and Boyajian can claim a right under the Bylaws as Central Committee members or to vote. In fact, of all Central Committee members, only Chair Ohanian had that right to vote as a representative of the Contral Committee at the Regional Convention. Ex. 1, p. 9, Art. 45; Ohanian Decl., ¶14. Entity Opp. at 10-11.
ARFDW-USA further contends that Petitioner Tazian does not have standing. The Bylaws give the Central Committee “final authority regarding the interpretation of the bylaws and the decisions of the Regional Convention.” Ex. 1, p. 10, Art. 56, 58. The Central Committee determined that certain chapters and gomideh relinquished their right to participate in the Regional Convention by refusing to participate in the delegate election process and being in arrears on dues. The gomidehs are responsible for managing their chapters and taking direction from the Central Committee, and they were provided several notices instructing them to hold general meetings and select delegates. Entity Opp. at 11.
However, to sabotage the Regional Convention, the San Francisco Chapter, at the direction of their gomideh (led by Petitioner Tazian), defied the Central Committee’s direction. Providing various excuses, Tazian informed the Central Committee on December 1, 2020 -- the deadline to select delegates -- that the San Francisco Chapter refused to convene a meeting. (Ohanian Decl. ¶79; Ex. 21). Under these circumstances, the Central Committee had the authority to disqualify the chapter and its gomideh (Ex. 1, Art. 41), and the authority to impose the “loss of the right to vote” as a consequence. See Ex. 1, pp. 13-14, Arts. 89, 96(d). Because Tazian had no affirmative right to vote at the Regional Convention, he lacks standing. Entity Opp. at 11.
Standing is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff. Mendoza v. JPMorgan Chase Bank, N.A., (2016) 6 Cal.App.5th 802, 810. As a general rule, a party must be beneficially interested to seek a writ of mandate. Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist., (2015) 235 Cal.App.4th 957, 962 (citing CCP §1086). “Beneficially interested” has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. SJJC Aviation Services, LLC v. City of San Jose, (2017) 12 Cal.App.5th 1043, 1053. The beneficial interest must be direct and substantial. Ibid. A petition has no beneficial interest if she will gain no direct benefit from the writ’s issuance and suffer no direct detriment if it is denied. Ibid.
ARFDW-USA’s standing arguments are untenable. In the first place, section 7616 permits “any director or member or by any person who had the right to vote in the election at issue” to contest the election. Since the statute is written in the disjunctive, Petitioners Dimejian and Boyajian need not have had the right to vote for the Central Committee at the December 2020 Regional Convention. They need only have been directors at that time. While ARFDW-USA disputes that they were valid Central Committee members because the Bureau forced them on ARFDW-USA and their director status conflicts with the Bylaws, the lawfulness of their director status does not affect their standing to contest the election. See Reply at 10.
Petitioners Dimejian and Boyajian show that the Bureau purported to appoint them to the Central Committee and on September 18, 2019, the Central Committee issued a letter reluctantly agreeing to accept them as members of the Central Committee “to keep order in the ranks of the party.” Dimejian Decl., ¶¶4-5, Exs. 9, 10; Bovajian Decl., ¶¶4. Between September 2019 and through December 2020, Petitioners Boyajian and Dimejian held themselves out and were accepted as a member of the Central Committee. Suppl. Boyajian Decl., ¶4, Ex. 16; Suppl. Dimejian Decl., ¶4. They participated in discussions and represented the Central Committee at chapter general meetings. Suppl. Boyajian Decl., ¶¶ 3-4, Ex. 49; Suppl. Boyajian Decl., ¶4; Suppl. Dimejian Decl., ¶3; Madenlian Decl., ¶¶ 12-15; Melkonian Decl., ¶¶ 7-12. Their disputed status as Central Committee members is sufficient to confer a beneficial interest in the election, and therefore standing.
Petitioner Tazian also has standing because he contends that he had the right to vote at the Regional Convention. While the San Francisco Chapter never held a general meeting to elect delegates, on November 30, 2020 Tazian was elected to be the gomideh’s delegate to the 2020 Regional Convention. Suppl. Tazian Decl., ¶7. The fact that the Central Committee stripped the San Francisco Chapter and its gomideh of the right to vote as a disciplinary measure does not affect Tazian’s standing because he disputes that decision. As such, Tazian is entitled to contest the validity of the Central Committee election at the December 2020 Regional Convention, including the decision to deprive him of his voting right at the election.
2. The December 27, 2020 Emergency Central Committee Meeting
On December 3, 2020, the day of the scheduled Regional Convention, the Bureau purported to unilaterally cancel it. Ohanian Decl., ¶¶ 59-60; Ex. 23, p. 185. The Central Committee attempted to reschedule the Regional Convention so that all chapters could conduct their general meetings and attend. Ohanian Decl., ¶64. However, on December 27, 2020, the Bureau circulated a letter purporting to appoint a new Central Committee without any vote in contravention of the Bylaws. Ohanian Decl., ¶¶ 65-66, Ex. 8, p. 66. Entity Opp. at 6.
In response, the Central Committee convened an emergency meeting the same day, December 27, 2020. Ohanian Decl., ¶¶ 70-71. Seven members of the Central Committee attended. Ohanian Decl., ¶72. The Central Committee members not invited were (a) Melkon Melkonian (“Melkonian”) and Steve Dadiaian, whom the Bureau had appointed to the new Central Committee (Ohanian Decl., ¶29; Ex. 8, p. 66), and (b) the three Central Committee members whom the Bureau had appointed in September 2019 and reappointed to its new Central Committee (Boyajian, Aintablian, and Garabetian). The Central Committee excluded these five members from notice because they were conflicted. The Bureau’s appointees were not members of the Central Committee and not entitled to notice. Ohanian Decl., ¶73. They also were aligned with the Bureau which had just attempted to appoint a new Central Committee. Ohanian Decl., ¶73. Another member of the Central Committee (Melkonian) had been named by the Bureau to its new Central Committee and also was conflicted and not invited. Ohanian Decl., ¶73. All properly elected members who were not engaged in the Bureau’s coup were given notice of the December 27 emergency meeting. Ohanian Decl., ¶73.
The minutes of the emergency meeting reflect that Dimejian, Boyajian, Aintablian, Garabetian, and Melkonian were not invited because they support the Bureau’s appointment of that day and had a conflict of interest. Ex. 2, p. 16. The minutes list Petitioner Dimejian as absent in the minutes, suggesting that person had notice. Ex. 2. The meeting had a quorum because the five not invited members could not vote, and seven of the ten remaining Central Committee members constituted a majority and a quorum. Ex. 2, p. 16.
ARFDW-USA admits that the Central Committee, comprised of volunteers, struggled to understand the legal implications of the Bureau’s actions, but unanimously agreed it was critical to protecting the organization to commence the Regional Convention (which had been pending and noticed for months) as soon as possible. Ex. 2, pp. 16-18; Ohanian Decl. ¶¶ 75-76; Topalian Decl. ¶ 12; Izmirlian Decl. ¶¶ 3-6; Kirakosian Decl. ¶¶ 5-6. The Central Committee unanimously voted to commence the Regional Convention the following day, December 28, and that the chapters which had held general meetings and elected delegates should be notified to attend, but not those which defied the Central Committee’s instructions and refused to hold general meetings and elect delegates. Ex. 2, p. 18. Entity Opp. at 6-7.
a. The Four Appointees as Members of the Central Committee
As a threshold issue, Petitioners contend that Respondents cannot challenge the 15-member Central Committee which would include Dimeian, Boyajian, Aintablian, Garabetian, and Melkonian. How can Respondents dispute this 15-member board when the December 27 Central Committee minutes recite that it has 15 members, and it is undisputed that the four additional board members were appointed in September 2019? Pet. Op. Br. at 8-9.
Petitioners argue that this factual issue need not be resolved because section 7527 creates a nine-month statute of limitations for any challenge to the election, appointment, or removal of a director for a mutual benefit non-profit corporation and, if no such action is timely commenced, the election, appointment, or removal of a director is conclusively presumed valid in the absence of fraud. The Bureau appointed the extra four members to the Central Committee in September 2019. Ex. 9, p. 71. On September 18, 2019, the Central Committee informed the members that, although this action was “hurtful and demeaning”, it decided to proceed according to the Bureau’s appointment letter “against its own wishes and with deep concerns” and “in order to keep order in the ranks of the party.” Ex. 10, p. 74. Pet. Op. Br. at 9; Reply at 3.
Petitioners contend that, if the Central Committee believed the appointment of these four new members was contrary to the Bylaws or otherwise wrongful, it could have brought an action challenging the appointment within nine months of September 2019. It did not do so and even affirmatively stated that there were 15 members in the minutes of the December 27, 2020 emergency Central Committee meeting. Petitioners conclude that the Bureau’s appointment of the additional four members now must be conclusively presumed valid. All members of ARFDW-USA were informed of the appointments, and no fraud or late discovery exception applies. Pet. Op. Br. at 9; Reply at 3.
The Individual Respondents dispute that the Bureau’s four appointees were members of the Central Committee. They argue that the appointees are the result of the Bureau’s campaign of wrongful interference in ARFDW-USA’s affairs in an attempt to obtain control over valuable assets and that the Bylaws requires the election of directors. Ex. 1, Art. 47, p. 9. ARFDW-USA’s Central Committee already had the maximum 11 directors allowed by the Bylaws, all of whom had been elected at a Regional Convention as required. See Ex. 9, p. 71. Neither Petitioners nor the Bureau have ever advanced a legal justification for the appointment, and the Central Committee only accepted the four appointees to avoid a conflict and knowing that an election of a new Central Committee was scheduled for 2020. Ohanian Decl., ¶¶ 40-41. Indiv. Opp. at 3-4. ARFDW-USA agrees, adding that the Bureau’s appointments void ab initio, and illegal and no statute of limitations applies. Entity Opp. at 14.
The court does not agree. While there is no doubt that the Bureau interfered by purporting to appoint four new members of the Central Committee, and that this interference was inconsistent with the Bylaws, ARFDW-USA’s representations of independence to DOJ, and corporate law, the Central Committee did not have to accept the four new members. It need not have filed a legal action within the nine-month limitation period of section 7527 to challenge the appointment as Petitioners contend and instead could simply have refused to accept the four appointees as members, if only because they had not been elected at a Regional Convention and their appointment exceeded the maximum of 11 members set forth in the Bylaws. Ex. 1, Art. 47, p. 9. Thus, the four appointees were Central Committee members on December 27, 2020.
The nature of their membership was limited, however. Because the appointees had been foisted on it in violation of the Bylaws, the Central Committee was entitled to limit the scope of the four appointees’ rights and responsibilities.
Respondents’ evidence shows that the Central Committee limited the work of the four Bureau appointees to guard against undue influence. Ohanian Decl., ¶40. They were allowed to attend Central Committee meetings. Ohanian Decl., ¶¶ 40-41. But they were only allowed to participate in limited activities, were not provided any material assignments, and were not placed on any subcommittees. Ohanian Decl., ¶41. They participated in only one Central Committee vote, which occurred in May 2020. Ohanian Decl., ¶¶ 41-42; Ex. 11. Thus, Respondents evidence suggests that the Central Committee did not treat the four appointees as full-fledged members and limited their votes.
Petitioners argue that ARFDW-USA clearly accepted the four appointees as full members of the Central Committee. They contend that Respondents should be required to present Central Committee minutes that distinguished the four appointees from other members in voting, and none have been have provided. Pet. Op. Br. at 11. Moreover, the Central Committee’s September 18, 2019 letter to membership admitted that the Central Committee it would reluctantly accept the additional board members “in order to keep order in the ranks of the party.” Ex. 10, p. 74. Petitioners present Central Committee minutes from July 7, July 14, October 25, and November 10, 2020, showing that the four appointees were present and participated in votes of the Central Committee. Suppl. Boyajian Decl., ¶¶ 3-4, Ex. 49. This acceptance of the additional four members continued through the December 27, 2020 emergency board meeting. It is unfair for Respondents now to claim that the four members were really never on the Central Committee, and this sudden change of position is nothing more than lawyers grasping at straws in their effort to defend the election. Pet. Op. Br. at 11-12; Reply at 4, 9.
The court agrees with Petitioners that the four appointees were members of the Central Committee, but the issue raised by Respondents is the extent of their membership. Petitioners’ argument on this point is that Respondents have not presented Central Committee minutes showing that the appointees were precluded from voting and the minutes presented in reply (Ex. 49) show that they did vote. This is a good point, especially in light of Petitioners’ evidence that they were Committee members with full rights and obligations, including voting. Suppl. Boyajian Decl., ¶4, Ex. 16; Suppl. Dimejian Decl., ¶4.
Nonetheless, nothing prevents the Central Committee from limiting the voting membership of the invalid appointees at any time, even at the December 27, 2020 meeting. The Bureau’s appointment of four members to the Central Committee lacked any authority under the Corporations Code or the Bylaws and was void ab initio, illegal, and against public policy. Where an act is void ab initio, no time bar can apply. See Civil Code §3539 (“Time does not confirm a void act”); Erickson v. Bohne, (1955) 130 Cal.App.2d 553, 556; Salton Bay Marina, Inc. v. Imperial Irrigation Dist., (1985) 172 Cal.App.3d 914, 941; Allen v. Hussey (1950) 101 Cal.App.2d 457, 475. Entity Opp. at 14; Indiv. Opp. at 13.
Thus, the Central Committee was entitled at any time to limit the four appointees’ right to vote. As Individual Respondents argue, a third party may not force a corporation to file an action by simply purporting to appoint members to the corporation’s board of directors. If Respondents’ attorney sent a letter to the board of Apple Inc. purporting to appoint himself to its board, he would not become a director if Apple Inc. failed to file an action against him within nine months. Indiv. Opp. at 13.[12] As the four members were invalidly appointed, the Central Committee could take action to limit their membership at any time. Section 7527’s limitations period for a challenge does not limit the Central Committee in doing so because no one claiming a position of authority under the Bylaws elected or appointed them.[13]
In sum, the four appointees were members of the Central Committee, but the Central Committee could limit their authority and chose to do so on December 27, 2020.
b. Equitable Estoppel
Alternatively, Petitioners contend that Respondents are estopped from attacking the validity of the 15-member board. Prior to lawyers getting involved, the Central Committee fully accepted the four appointees as members. The minutes of the December 27, 2020 Central Committee meeting recites that the fact that there are 15 board members. Having based its claim of propriety on a board with 15 members, it is hardly fair for Respondents now to claim that the four should be ignored. Pet. Op. Br. at 10-11; Reply at 3.
Equitable estoppel applies in circumstances where a party has induced another into forbearing to act. Lantzy v. Centex Homes, (2003) 31 Cal..App.4th 363, 383; Jarboe v. Hanlees Auto Group, (53 Cal. App. 5th 539 (2020) (“equitable estoppel precludes a party from asserting rights he otherwise would have had against another when his own conduct renders assertion of those rights contrary to equity”). The elements of equitable estoppel are: (1) the party to be estopped must be appraised of the facts; (2) he must intend that his conduct shall be acted upon; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. Driscoll v. City of Los Angeles, (1967) 67 Cal.2d 297, 305.
As both Respondents point out (Entity Opp. at 14; Indiv. Opp. at 11-12), Petitioners cannot rely on equitable estoppel to contend that Central Committee had 15 full members. Estoppel only “acts defensively” and cannot be used as a sword to validate an act that is wrongful, void, or unlawful. Peskin v. Phinney, (1960) 182 Cal.App.2d 632, 636; Columbia Engineering Co. v. Joiner,¿(1965) 231 Cal.App.2d 837, 855. Petitioners cannot use estoppel offensively to validate the Bureau’s appointment of four directors.
Moreover, a party asserting estoppel must be ignorant of the true state of facts and must rely upon the conduct to his injury. Petitioners profess no ignorance that the Bureau’s appointment of four directors both contravened the Bylaws and was inconsistent with ARFDW-USA’s representations to DOJ, but they do dispute that they were aware that the Central Committee purported to limit their full membership voting rights. While Petitioners may have been ignorant of some facts, they clearly did not rely on their full Central Committee voting membership to their detriment and injury.
Respondents are not equitably estopped from denying full membership to the four appointees.
c. Lack of Adequate Notice
Petitioners argue that the December 27, 2020 Central Committee emergency meeting was invalid. Petitioners acknowledge that section 7211(a)(7) states that a majority of the number of directors authorized in the Bylaws constitutes a quorum, and the Bylaws authorize a maximum of 11 directors. Ex. 1, p. 9, Art. 47. As a result, Petitioners do not claim that the December 27 meeting lacked a quorum when seven out of the 11 directors authorized by the Bylaws were present. Rather, Petitioners contend that the meeting was deficient because less than 48 hours’ notice was given and not all directors were given notice. Pet. Op. Br. at 4.
Pursuant to section 7211(a)(2), a minimum of 48 hours’ notice, delivered in person or by telephone, is required for an emergency/special meeting of a board of directors. The emergency meeting minutes do not state when the meeting was noticed and who received the notice, but the first line of the minutes states that the Bureau has appointed a Central Committee (Ex. 2, p. 16), and it is undisputed that the Bureau did so on December 27, 2020. Ex. 8, p. 66. The emergency meeting took place on December 27, the same day as the Bureau’s letter. Hence, no one received sufficient notice; all notice was given less than 24 hours in advance of the emergency meeting. Pet. Op. Br. at 4.
In addition, notice was not given to all directors. Section 7211(a)(3) permits a waiver of notice by a director, but no such waiver occurred for the December 27 meeting. Petitioners Dimejian and Boyajian are listed in the December 27 minutes as absent board members, and they never received notice of this meeting. Dimejian Decl., ¶¶ 8-9; Boyajian Decl., ¶¶ 8-9. The minutes declare that five members of the Central Committee had been appointed to the Bureau’s new Central Committee, they had a conflict of interest, and therefore were not given notice of the meeting. Ex 2, p. 16. Petitioners argue that, even if these members have a conflict of interest, they were entitled to notice of the meeting. According to Petitioners, the minutes also are silent as to why the additional three directors were not invited. Pet. Op. Br. at 4.
Petitioners do not quite accurately state the minutes. The minutes show that five Central Committee members were not invited: (a) Melkonian and Steve Dadiaian, whom the Bureau appointed to the new Central Committee (Ohanian Decl., ¶29; Ex. 8, p. 66), and (b) the three Central Committee members whom the Bureau had appointed in September 2019 and reappointed to its new Central Committee (Boyajian, Aintablian, and Garabetian). The Central Committee excluded these five members from notice because they were conflicted because they were on the Bureau’s Central Committee appointees and had made statements supporting the Bureau’s actions. Ex. 2.
The minutes list Petitioner Dimejian as absent, suggesting that this member was given notice. Ex. 2; Ohanian Decl., ¶8. However, Petitioner Dimejian disputes receiving notice, which makes sense because Dimejian was a Bureau-appointee. All other Central Committee members received notice. Ohanian Decl., ¶29. Two members are listed as absent, meaning that they were given notice and failed to appear: Garo Madenlian and Razmig Haroun. Ex. 2; see Ohanian Decl., ¶73.
The court agrees with Petitioners that the five listed Bureau-affiliated members and Petitioner Dimejian should have been given notice. The existence of a conflict of interest does not mean that notice should not be given. If given notice, the board member could argue that he or she does not have a conflict or that the conflict is limited. Even if conflicted from a vote, the person may be entitled to advocate their position to the other members. Finally, a conflicted member who may not advocate still is entitled to observe. In short, the Central Committee erred by not giving notice to six Central Committee members. Although the Central Committee was entitled to treat Petitioners and the other two appointees as not full voting members -- even if only for the first time on December 27, 2020 -- they nevertheless were members entitled to notice.
ARFDW-USA argues that it is statutorily entitled in an emergency to “[g]ive notice to a director or directors in any practicable manner under the circumstances” (§7140(m)(2)(A)), and “[a]ny actions taken in good faith … during an emergency under this subdivision bind the corporation…” §7140(m)(4)). Entity Opp. at 13-14. Petitioners correctly respond that the Central Committee may take advantage of sections 7140(m) and 7151(g) only if the meeting is properly constituted with notice to all. Moreover, if the emergency is based on anything other than the Bureau’s appointment of a new board, then the five appointed members had no conflict, should have been invited to the meeting, and should have been entitled to vote. Pet. Op. Br. at 11.
Despite the Central Committee’s error in failing to give complete notice, Petitioners are not entitled to a remedy. Petitioners argue that, since the notice for the emergency meeting was invalid, any actions authorized by the Central Committee at the meeting also are invalid, including the election of directors at the Regional Convention called for the next day. Pet. Op. Br at 4-5. Everything the board has done since December 27, 2020 relies on the emergency meeting resolutions. Pet. Op. Br. at 13.
Petitioners point to no legal authority that the lack of notice to less than a quorum of board members necessarily results in vacating a board decision. The emergency meeting was caused by the Bureau’s attempt to appoint an entirely new Central Committee and the only action taken was an unanimous vote to set the Regional Convention for the following day and to contact all gomidehs which elected delegates to attend. Ex. 2, p. 18 (referring to gomidehs as “gummy bears”). This short notice of the Regional Convention was no surprise. ARFDW-USA is correct that the Regional Convention had been noticed for the December timeframe for months. See Entity Opp. at 13-14. Individual Respondents also are correct that, so long as the requirements of the Bylaws for a Regional Convention were met, the notice of the Central Committee meeting had no practical or equitable effect on the validity of the Regional Convention. Equity values substance over form and the law disregards trifles and idle acts. See Civil Code §§ 3528, 3532-33. Indiv. Opp. at 14.
Petitioners point to nothing that would have happened differently had they and the other five members been given proper notice. The Central Committee concluded that the Bureau-affiliated members had a conflict of interest because the Bureau had just attempted to appoint a new Central Committee. While they should have been allowed to be present at the meeting, the Central Committee still would have been entitled to disqualify these five members and Petitioner Dimejian from voting on setting the Regional Convention. Thus, their absence had no effect on the only action taken at the December 27 meeting.
3. The December 28, 2020 Regional Convention
a. Regional Convention Procedure
In advance of each biennial Regional Convention, the Central Committee sends notice to the gomidehs, outlining the agenda for the convention, with directions to be circulated amongst the general membership. Ex. 1, Art. 40, p. 7; Ohanian Decl., ¶12. Each chapter must then hold a general meeting and elect the chapter’s delegates to attend the Regional Convention. Ex. 1, Art. 20, p. 5.
The delegates to the Regional Convention come from three groups: (a) the Central Committee, (b) the gomidehs, and (c) each chapter. Ex. 1, Art. 41, p. 7. The Central Committee and each gomidehs elect a single delegate and every chapter may elect delegates in numbers in accordance with its membership size. Id. The Central Committee always nominates its chairperson as its delegate, which was Ohanian as of December 27, 2020. Ohanian Decl., ¶¶ 13, 29. The other members of the Central Committee participate in the Regional Convention without the right to vote. Ex. 1, Art. 45, p. 9. Only chapters and their gomidehs “that have completely fulfilled the financial obligations placed up them are fully qualified to participate in the Regional Convention...” Ex. 1, Art. 41(a), p. 7.
A Regional Convention is considered valid when the “representatives of two-thirds of [chapters] and gomidehs and a simple majority of the total delegates are present.” Ex. 1, Art. 41(d), p. 8. Central Committee candidates are nominated at the Regional Convention (Ohanian Decl., ¶13), Central Committee members are elected by secret ballot and two-thirds majority vote. Ex. 1, Art. 44, p. 8. “Blank votes (abstentions) are not included in the total count”. Ex. 1, Art. 79(b), p. 12.
b. Notice of the Regional Convention[14]
Petitioners contend that insufficient notice was given for the Regional Convention. The motion passed at the December 27, 2020 emergency meeting was to hold “a regional convention ASAP the follow day if possible”. Ex. 2, p. 18. That is a violation of section 7511(a), which provides that written notice of a meeting where members are required or permitted to take action “shall be given not less than ten nor more than ninety days before the date of the meeting . . .” That notice must go to every member entitled to vote and section 7511(b) sets forth procedures for notice and states an affidavit from the secretary or other officer shall be prima facia evidence of the notice. No such document exists here. Pet. Op. Br. at 5, 13; Reply at 1.
Written notice of the fact that a Regional Convention would occur was provided on seven occasions throughout 2020 -- including on November 18, 2020, 40 days before it was held. See Ex. 18, pp. 165-68.[15] Specifically, notice of a December 3, 2020 Regional Convention was given between ten and 90 days before the meeting as contemplated by section 7511. The only notice not given within the ten-day minimum period was the change of date to December 28, 2020.
Section 7511 is not necessarily the controlling statute because it applies to meetings of members, not delegates: “Whenever members are required or permitted to take any action at a meeting …” See §7511(a). The Bylaws state that a Regional Convention is a meeting of delegates. Ex. 1, Arts. 41, 42, 55, pp. 7-8, 9-10. The Bylaws require that the Regional Convention be “convened every two years at the noticed invitation of the Central Committee.” Ex, 1, Art. 40, p. 7 (emphasis added). “When necessary, an extraordinary Regional Convention may be convened by the invitation of the Central Committee…” Ex, 1, Art. 40(b), p. 7 (emphasis added).
According to ARFDW-USA and the Individual Respondents, the applicable statute is section 7152, which states: “Where delegates are provided for, the bylaws shall set forth…any reasonable method for calling, noticing and holding meetings of delegates.” §7152 (emphasis added).[16] Accordingly, section 7511’s ten days’ notice requirement is not controlling where delegates are noticed to a meeting and the Central Committee could convene a Regional Convention on the notice it deemed necessary. Entity Opp. at 12; Indiv. Opp. at 15.
While the Bylaws could provide a method of notice to delegates, they do not do so. The Bylaws merely provide that the Central Committee shall prepare an agenda three months before the Regional Convention. Ex. 1, Art. 40(a), p. 7. Therefore, Petitioners are correct that section 7511’s ten to 90-day notice period applies.
Nonetheless, a court may find that notice not given in conformity with these requirements is still valid if given in a fair and reasonable manner. §7511(g). Petitioners argue that it seems impossible for notice to be fair and reasonable when it is not given to all those entitled to vote. Likewise, giving individuals who reside in San Francisco and San Jose less than 24 hours to come to Los Angeles for a meeting is hardly fair and reasonable. Pet. Op. Br. at 7.
To justify such a procedure, Respondents must claim there is some sort of emergency. The pandemic, which had been in existence during all of 2020, cannot be the emergency. The only emergency noted in the Central Committee’s December 27 emergency minutes was the fact that the Bureau had appointed an interim Central Committee to govern for six months and arrange for a new Regional Convention to elect a new Central Committee under the Bylaws. It is difficult to understand how that could create an emergency, particularly since Respondents contend that the Bureau has no such power under the Bylaws. Rather than call an emergency election, Respondents could have filed a lawsuit against the Bureau and asserting their power under the Bylaws. Or the Central Committee could simply have ignored the Bureau’s action. Pet. Op. Br. at 7-8.
The one-day notice for the December 28, 2020 Regional Convention was fair and reasonable under the circumstances. The Central Committee noticed the 2020 Regional Convention twice prior to that date and directed the chapters and gomidehs to elect their delegates in January 2020 and again in October 2020. Exs. 4-5. A large majority of the gomidehs and chapters elected delegates prior to the December 3 date for the Regional Convention and sent those delegates to the December 28, 2020 Regional Convention.
ARFWD-USA could reasonably believe that the Bureau’s action on December 27, 2020, coupled with its earlier interference in appointing four directors in September 2019 and cancellation of the December 3–6, 2020 Regional Convention, created an emergency that had to be dealt with immediately. The chapters had been aware of a December Regional Convention and the deadlines for electing delegates for months. ARFDW-USA could reasonably conclude that the best way to address the problem was to hold a Regional Convention to elect an indisputable Central Committee immediately so that members would not accept the Bureau’s purported appointment of a new Central Committee. That ARFDW-USA had other alternatives does not undermine this conclusion. Finally, delegates were permitted to attend via Zoom, obviating any inconvenience for any delegates as far away as San Jose or San Francisco.
In light of the Bureau’s attempt to prevent a 2020 Regional Convention altogether, and its purported appointment of an interim Central Committee, the notice of the Regional Convention was reasonable and complied with section 7511(g).
c. Notice of the Names of Nominees
Petitioners argue that no notice of the nominees was given. Section 7511(a) requires that notice of any meeting “at which directors are to be elected shall include the names of all those who are nominees at the time the notice given to the members”. Neither the minutes of the December 28, 2020 Regional Convention (Ex. 3) nor the December 27, 2020 Central Committee minutes make any reference to who would be running for director. The Regional Convention minutes show that the nominations were designed to elect 11 hand-picked nominees for the Central Committee. Thirteen individuals were nominated. The two nominees who intentionally were selected not to win received three and four votes, respectively, and the other 11 nominees received over 30 votes each. Ex. 3, pp. 38F-38G. Pet. Op. Br. at 5.
Neither ARFDW-USA nor the Individual Respondents reply to this argument. The names of nominees for the Central Committee did not need to be provided in the notice because they were not nominated until the Regional Convention. See Ex. 3, p. 38F. Section 7511(a) only requires notice of nominees at the time of notice, of which there were none.
d. The Existence of a Quorum
Petitioners argue that there was no quorum for the Regional Convention. Pursuant to Bylaws Article 41(d) (Ex. 1, p. 8), the Regional Convention “is considered valid when the representatives of two-thirds of the gomidehoutounes and gomidehs and simple majority of the total delegates are present.” For there to be a quorum, delegates from two-thirds of the chapters as well as two-thirds of the chapter leaders (gomidehs) must be present, and also a simple majority of the total delegates. Since the minutes do not describe how many delegates the chapters were entitled to have, that requirement is not known. Pet. Op. Br. at 5-6.
The minutes of the Regional Convention provide December 28, 2020 meeting attach a list of delegates present with the chapters names in caps and bold. Ex. 3, pp. 38I-38K. The last name is “Gen Gen” with only one representative. Gen Gen is the Central Committee, not one of the chapters. Without Gen Gen, the list shows that only 11 of 18 chapters appeared. Two-thirds of the chapters were not present. Pet. Op. Br. at 6. While the Central Committee is the final authority for interpretation of the Bylaws and any decisions made at the Regional Convention (Ex. 1, Art. 56, p. 10), it cannot interpret the two-thirds requirement for chapters to mean 11 of 18. Pet. Op. Br. at 13; Reply at 6-7.
Petitioners add that the minutes state that some of the chapters were not invited because they did not fulfill their obligations, but the Central Committee cannot unilaterally do away with those chapters. For example, the minutes show that the San Francisco and San Jose chapters were not present. If ten days’ notice were given, they would have had an opportunity to attend. Pet. Op. Br. at 6.
On December 28, 2020, 39 delegates attended the Regional Convention -- 30 delegates were personally present and nine appeared via Zoom. Ohanian Decl. ¶¶ 77-83, Ex. 3, p. 38B. Respecting health concerns, the Convention was streamlined over the course of a single day rather than the traditional three days. Ohanian Decl., ¶84. At the meeting, Central Committee candidates were nominated and voted upon. Ex. 3, pp. 38F-G; Ohanian Decl., ¶85; Topalian Decl., ¶13; Izmirlian Decl., ¶¶ 7-9; Kirakosian Decl., ¶7; Keuleyan Decl., ¶15. Other business also occurred at the Regional Convention. Ex. 3, pp. 38A-38F.
The Bylaws specifically refer to a practice of subtracting excused individuals from counts for determining a quorum. Ex. 1, Art. 19(b), (c) (“To determine a valid majority, the number of excused members is subtracted from the total membership.”) Section 11214 also recognizes that delegates that are disqualified are not counted towards a quorum. Several chapters -- North Hollywood, San Jose, San Francisco, Burbank -- as well as the gomideh for the Shant Student Association -- were in arrears on dues and did not have an affirmative right under the Bylaws to attend. See Ex. 1, Art. 41(a), p. 7.[17] Moreover, the North Hollywood and San Francisco chapters abstained from participating by refusing to hold a general meeting and elect delegates and the Burbank and San Jose Chapters unsuccessfully attempted to hold general meetings and were excused. Ohanian Decl., ¶79.
ARFDW’s Bylaws consider a Regional Convention valid when representatives of two-thirds of the chapters and gomidehs and a simple majority of the total delegates are present. Ex. 1, Art. 41(d), p. 8. The Central Committee interpreted this requirement to mean two-thirds of the chapters and gomidehs collectively rather than two-thirds of each. See Ex. 1, Art. 56, p. 10 (Central Committee is the final authority for interpretation of the Bylaws and any decisions made at the Regional Convention). There were 11 of 17 chapters (the Shant Student Association is not a chapter)[18] and 7 of 18 gomidehs present. After subtracting the four chapters that were arrears on dues and failed to elect delegates (San Francisco, North Hollywood, San Jose, and Burbank) and their respective gomideh delegates, as well as the Student Association and its one gomideh delegate (a total of five gomideh delegates), 18 of 26 collective chapters and gomidehs (69%) were present.[19] The attendance reflected the participation of more than two-thirds of the chapters and gomidehs entitled to participate. See Ohanian Decl., ¶¶ 82-83.
After removing the same chapters and gomidehs, 39 of 53 possible delegates were present. Even without counting abstentions, more than a simple majority of delegates were present. Entity Opp. at 12-13; Indiv. Opp. at 14.[20] This is sufficient to show that there was a quorum.
Although Respondents do not answer Petitioners’ argument that the Regional Convention minutes do not calculate how many delegates the chapters were entitled to have, Petitioners point to no obligation that this calculation must be memorialized in the minutes. Petitioners bore the burden of showing that the number of chapter delegates was wrong such that a majority were not present, and they have not met this burden.
Respondents also do not directly answer Petitioners’ argument that the Central Committee cannot unilaterally eliminate chapters from the Regional Convention, and Petitioners provide additional evidence in support of this argument in reply.
Thus, the Glendale Chapter attempted to convene a general meeting to elect delegates on December 1, 2020 but did not have a quorum and was unable to do so. Kazandjian Decl., ¶5. The chapter’s gomideh was never informed of the December 28, 2020 Regional Convention and the individuals who purported to represent the Glendale Chapter -- Garo Eshegian, Lucine Haroutunyan, Meghrik Yedalian, and Karekin Karazian -- were never legitimately elected. Kazandjian Decl., ¶8. The chapter’s gomideh also never formally selected its delegate and Vahan Bezdikian seems to have appointed himself unilaterally. Kazandjian Decl., ¶8.
Due to COVID-19 restrictions, the San Francisco Chapter was unable to convene a general meeting and elect delegates for the 2020 Regional Convention. Suppl. Tazian Decl., ¶10. On November 30, 2020, the chapter’s gomideh held a meeting and Tazian was elected to be the 2020 Regional Convention delegate for the gomideh. Suppl. Tazian Decl., ¶7.
On November 16, 2020, the Shant Student Association convened its general meeting and elected delegate Hrach Avedissian. Kupelian Decl., ¶9; Ex. 28. Additionally, Hovig Zaki was elected as the delegate on behalf of the executive board (gomideh). Kupelian Decl., ¶9; Ex. 28.
The Glendale, San Fernando, and San Francisco chapters and the Shant Student Association were never informed by the Central Committee that their failure to completely pay their debt would result in delegates or their chapter being excluded from participating in on voting at a Regional Convention. Their representatives have attended numerous Regional Conventions and no delegate or chapter ever was excluded from participating or voting based on its failure to pay its debt to the Central Committee. Kazandjian Decl., ¶¶ 10-11; Kourounian Decl., ¶¶ 10-11; Kupelian Decl., ¶13; Suppl. Tazian Decl., ¶¶ 4-5. [21]
This reply evidence and argument is not persuasive for two reasons. First, it should have been presented with the moving papers and is impermissible in reply. Petitioners knew that the Regional Convention minutes excluded them for not paying dues and/or failing to elect delegates and also permitted other persons from Glendale and San Fernando to appear. New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.
Second, while the Central Committee apparently never previously excluded a chapter from participating in a Regional Convention for failure to pay dues, there is no doubt that the Bylaws permit it to do so. Ex. 1, Art. 41(a), p. 7. Petitioners cite no law that the Central Committee may not rely on the Bylaws to exclude such chapters even if the exclusion was motivated by their affiliation with the Bureau.
e. Conclusion
In an action to defeat a corporate election, the court may examine the entire transaction without being limited to technical or procedural issues and may adjust the rights of the parties to do justice among them.” Goss v. Edwards, supra, 68 Cal.App.3d at 271. The December 28, 2020 Regional Convention was properly noticed and conducted, and the election of directors was therefore valid.
4. Unclean Hands
Both oppositions contend that Petitioners have unclean hands and should be prevented from the equitable relief that the election of Central Committee members was invalid. Although the court has held that the election is valid, it will address this issue.
A plaintiff who has been guilty of improper conduct connected with the controversy at hand will be denied by equity any recognition or relief with regard to the controversy. Moriarty v. Carlson, (1960) 184 Cal.App.2d 51. “The plaintiff's hands are rendered unclean…by any form of conduct that, in the eyes of honest and fair-minded persons, may properly be condemned and pronounced wrongful.” 30 Cal. Jur. 3d Equity § 29, citing Bennett v. Lew, (1984) 151 Cal.App.3d 1177, 1186. The actions of the party alleged to have soiled hands must relate “directly to the transaction concerning which the complaint was made....” Pond v. Insurance Co. of North America, (“Pond”) (1984) 151 Cal.App.3d 280, 290. While equity does not demand that a plaintiff lead a blameless life as to other matters, it does require that he have acted fairly and without fraud or deceit as to the controversy in issue. A plaintiff’s failure to do so is a complete defense to the complaint. Dickson, Carlson & Campillo v. Pole, (“Dickson”) (2000) 83 Cal.App.4th 436, 446. The defense of unclean hands applies to both equitable and legal claims. Pond, supra, 151 Cal.App.3d at 290.
The defense of unclean hands does not apply in every instance where the plaintiff has committed some misconduct in the matter in controversy, but only where it would be inequitable to grant any relief. Dickson, supra, 83 Cal.App.4th at 447. The court must consider the material facts affecting the equities between the parties, including the nature of the plaintiff’s misconduct, the degree of harm caused and the extent of the plaintiff’s damages. Id. The decision whether to apply the defense in a particular case is committed to the trial court’s discretion. Id.
ARFDW-USA argues that justice dictates upholding the election. Petitioners attempted to obstruct the meeting, and now seek to deliver control of the organization to a foreign entity. Petitioners’ misconduct should not serve as grounds for relief designed to undermine the authority of the Central Committee elected under the Bylaws. Entity Opp. at 9. Individual Respondents add that Petitioners are asking the court to use its equitable powers to hand control of ARFDW-USA to the Bureau by ordering that the next election be overseen by the 15-member Central Committee that includes the Bureau’s September 2019 appointees. Invid. Opp. at 9-10.
There is no question that the Bureau has unclean hands in this matter. The Bylaws expressly state that ARFDW-USA operates independently of the ARF and its organizations. Ex. 1, Arts. 70-71; Ohanian Decl., ¶25; Ex. 1. While ARFDW-USA respects ARF and the Bureau, they have no decision-making authority over ARFDW-USA. Ohanian Decl., ¶26. On February 3, 2013, ARFDW-USA expressly informed DOJ of this fact to maintain its non-profit status. Topalian Decl., ¶¶ 3, 9, Exs. 40, 42.
Despite ARFDW-USA’s independence, the Bureau purported to appoint the four additional Central Committee members in September 2019. Ex. 9. This appointment occurred in direct violation of the Bylaws requirement that directors be elected and that the Central Committee have no more than 11 directors. Ex. 1, Arts. 43, 47, pp. 8-9. While the Central Committee reluctantly accepted these four members, it clearly was distressed by this interference. Ohanian Decl., ¶¶ 40-42; Ex. 10. Then on December 3, 2020 -- the day of the scheduled Regional Convention -- the Bureau purported to instruct the Central Committee that it was unilaterally cancelling it, throwing ARFDW-USA into disarray as chapters and members received conflicting instructions how to proceed. Ohanian Decl., ¶¶ 59-60, Ex. 23; Topalian Decl., ¶10. Finally, on December 27, 2020, the Bureau issued a letter directly to ARFDW-USA’s membership claiming to dissolve the Central Committee and unilaterally appoint a new Central Committee to run ARFDW-USA. Ohanian Decl., ¶¶ 65-66, Ex. 8; Topalian Decl., ¶10; Izmirlian Decl., ¶3.
Even leaving out the Bureau’s post-December 28 effort to organize a competing election, excommunication of Central Committee members, transfer of chapter funds, social media takeover of ARFDW-USA’s profile, and attempted substitution for ARFDW-USA as beneficiary of an estate, the Bureau’s interfering actions relate directly to the validity of the election of Central Committee members at the December 28 Regional Convention. As such, the Bureau’s wrongful conduct relates “directly to the transaction concerning which the complaint was made....” Pond, supra, 151 Cal.App.3d at 290.
The question becomes whether Petitioners are equally guilty of unclean hands. Petitioners Boyajian and Dimejian are two of the Bureau’s September 2019 appointees to the Central Committee. Their direct participation in the Bureau’s wrongful interference means that its unclean hands may be attributed to them.
As for Petitioner Tazian, ARFDW-USA presents evidence that the San Francisco Chapter, at the direction of their gomideh led by Tazian, defied the Central Committee’s direction to hold a general meeting to elect delegates. Providing various excuses, Tazian informed the Central Committee on the day of the December 1, 2020 deadline that the San Francisco Chapter would not convene a meeting. Ohanian Decl. ¶79; Ex. 21. After the Regional Convention, Petitioner Tazian facilitated the transfer of $100,000 to a newly formed corporation designed to compete with ARFDW-USA. Ohanian Decl., ¶¶ 96, 98, Ex. 38 (Tazian’s declaration in a federal RICO action); Keuleyan Decl., ¶¶ 3-14. These facts show that Tazian is affiliated with the Bureau and its unclean hands may be attributed to him.
Petitioners are guilty of unclean hands in the election of the Central Committee and may not benefit from their own misconduct. This is a separate basis to conclude that the December 28, 2020 Regional Convention election is valid.[22]
E. Conclusion
The Petition’s section 7616 challenge to the election of the Central Committee at the December 28,2020 Regional Convention is denied.
Respondent ARFDW-USA’s counsel is ordered to prepare a proposed judgment, serve it on all other counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 24, 2020 at 9:30 a.m.
[1] Petitioners’ opening brief fails to provide a table of contents and table of authorities in violation of CRC 3.1113(f), and it also fails to discuss the standard of review in violation of LASC 3.231(i)(3). Petitioners’ counsel is admonished to follow these requirements in future cases. Additionally, even after being required to amend its initial opposition, Entity Respondent’s opposition still violates the 15-page limit of CRC 3.1113(d). Petitioners’ reply also exceeds the ten-page limit of CRC 3.1113(d). Both counsel are admonished that the page limits do not mean 15 or ten pages plus a signature page.
[2]All further statutory references are to the Corporations Code unless otherwise stated.
[3] Petitioners cite Exhibit 8, but it is not authenticated in any of the declarations.
[4] Respondents jointly request judicial notice of (1) President Trump’s Declaration of State (January 31, 2020) and National (March 13, 2020) Emergency due to the COVID-19 pandemic (Ex. 44); (2) Governor Newsom’s March 4, 2020 Declaration of State of Emergency due to the COVID-19 pandemic (Ex. 45); (3) a U.S. Department of Justice advisory letter dated November 8, 2012 (Ex. 46); (4) a U.S. Department of Justice advisory letter dated September 5, 2019 (Ex. 47). Exhibits 44 and 45 are judicially noticed. Evid. Code §452(c). Exhibits 46 and 47 are unsigned and redacted form letters that are not official agency acts and the requests for judicial notice are denied. See Evid. Code §452(c).
[5] Melkon Melkonian is missing in the English translation of Exhibit 25. Ohanian Decl., ¶67.
[6] The San Francisco Chapter’s bank records show two cashier check withdraws in the amounts of $25,000 and $75,000. Keuleyan Decl., ¶¶ 5, 8-9; Ex. 36.
[7] The La Crescenta Chapter’s bank records show two withdrawals in the amounts of $120,000 and $200,000. Keuleyan Decl., ¶¶ 10-11; Ex. 37.
[8] The Orange County Chapter’s bank records show a wire transfer initiated in the amount of $192,000 to the ARF Bureau’s fake corporation. Keuleyan Decl., ¶¶ 6-7; Ex. 35.
[9] The court has ruled on Respondents’ joint evidentiary objections to the reply evidence. The clerk is ordered to scan and electronically file the court’s rulings.
[10] Petitioner Dimejian submitted two separate declarations in reply. Cameron Decl., ¶5. The first is dated November 11, 2021 (“Suppl. Dimejian Decl.”) and the second one is dated January 4, 2022 (“Second Suppl. Dimejian Decl.”).
[11] ARFDW-USA has no objection to allowing all members to participate in the delegate selection process (if applicable). Entity Opp. at 15, n. 25.
[12] Individual Respondents make four other, mostly unsupported arguments that section 7527’s limitations period does not apply. First, the Bureau’s appointment of the four directors was fraudulent and section 7527 only applies “in the absence of fraud.” According to Individual Respondents, the Bureau’s letter misrepresented that it could appoint to the Central Committee and that the appointment was valid. Indiv. Opp. at 12-13. The short answer is that the Bureau committed no fraud; the Central Committee knew exactly what the Bureau had done.
Second, Petitioners are equitably estopped from asserting section 7527’s statute of limitations as a defense. See Atwater Elementary School Dist. v. California Dept. of General Services, (2007) 41 Cal.4th 227, 232–33. Indiv. Opp. at 13. Individual Respondents do not explain this argument, but equitable estoppel has no more application to this issue than it does to Petitioners’ argument that Respondents are estopped from disputing a 15-member board. See post.
Third, Petitioners’ section 7527 limitation period argument fails because they fraudulently concealed the necessity of an action. Regents of Univ. of Calif. v. Sup.Ct. (Molloy), (1999) 20 Cal.4th 509, 533. Indiv. Opp. at 13. Individual Respondents do not explain this argument and, as such, it is waived.
Fourth, Petitioners’ section 7527 argument fails because the Bureau attempted to appoint a new Central Committee on December 27, 2020 (Ex. 8, p. 66), and Respondents challenged that appointment in this action less than nine months later. Indiv. Opp. at 13. This argument is incorrect. No Respondent has filed an action challenging the Bureau’s December 27, 2020 appointment of a new Central Committee.
[13] In reply, Petitioners point to section 7222(c) and argue that there are situations in which a mutual benefit non-profit corporation can have more board members than authorized in the bylaws. Reply at 4. Section 7222(c) provides that a reduction of the authorized number of directors does not remove any director prior to the expiration of his or her term unless the reduction also provides for the removal of a director. Petitioners argue that this provision shows that the Legislature codified a situation where the number of directors could exceed those authorized in the bylaws and, similar to the situation envisioned in section 7222(b), a new election will bring the number of directors in compliance with the Bylaws. Reply at 4-5.
As Petitioners implicitly acknowledge, section 7222(c) does not apply except by their analogy and nothing in section 7222(c) compels a mutual benefit non-profit corporation to accept a director who has not been properly elected.
[14] Petitioners argue that the matters alleged in the federal RICO lawsuit between the parties took place after the election and are irrelevant and inadmissible in determining whether the election is valid. Only the Bureau’s September 9, 2019 appointment of additional directors to the Central Committee and its suspension of the December 3–6 Regional Convention can be claimed to support an emergency. Pet. Op. Br. at 8. With the addition of the Bureau’s December 27, 2020 appointment of an interim Central Committee, the court agrees.
[15] In January 2020, the Central Committee sent a circular to all chapters and members notifying them that a Regional Convention would commence on April 30, 2020. The circular attached an agenda and instructed the chapters to hold a general meeting to select delegates before April 25, 2020. Ohanian Decl. ¶¶ 43-44; Ex. 4, p. 44. Because of COVID-19, on March 24, 2020 the Central Committee notified the membership the Convention was postponed. Ohanian Decl., ¶¶ 45-46; Ex. 17, p. 162.
In October 2020, the Central Committee issued a circular informing the membership that the Regional Convention had been rescheduled to commence on December 3, 2020 and the chapters were to select delegates by November 23, 2020 (with members who did not wish to attend any meeting because of COVID-19 to considered excused). Ohanian Decl. ¶48; Ex. 5, pp. 54-55.
Over the next month, four additional circulars were sent to the chapters and members regarding the December 3, 2020 Regional Convention. Ohanian Decl., ¶¶ 49-53; see Exs. 18, 19. These letters instructed chapters to immediately set dates for their general meeting, if they had not done so, so that they would occur no later than December 1, 2020, and notify the Central Committee of such dates by no later than November 19, 2020. Id. See Entity Opp. at 5-6.
[16] Petitioners argue that section 7153, not 7152, applies for delegates. According to Petitioners, section 7152 describes a method for governing a mutual benefit non-profit corporation similar to a congress in which the delegates act as legislators. Since ARFDW-USA’s delegates are elected only to attend and vote at the Regional Convention, section 7152’s provisions regarding terms of office and methods of selection are inapplicable. The Bylaws show an election process compliant with section 7153 because the chapters elect delegates to vote at the Regional Convention. Pet. Op. Br. at 12. The court’s review of sections 7152 and 7153 reveals that they are not mutually exclusive. Both apply when delegates are tasked with voting on an issue(s).
[17] North Hollywood had a balance of $187,129, San Jose had a balance of $69,937.00, Burbank had a balance of $127,983.00, San Francisco had a balance of $9,595, and Shant Student Association had a balance of $107,865.00. Kirakosian Decl., ¶¶ 3-4.
[18] Petitioners argue that ARFDW-USA has 18 chapters because the Student Association is a chapter. Reply at 7. However, the Bylaws clearly show that the Student Association is treated like a gomideh, not a chapter. Ex. 1, Art. 39, p. 7. Petitioners acknowledge that the Student Association has the right to elect only one delegate to the Regional Convention, which would equate it with a gomideh, not a chapter. Reply at 7. Thus, ARFDW-USA has 17 chapters, not 18.
[19] Petitioners’ argument that 11 of 18 chapters attended disregards the treatment for abstentions and the Bylaws reference to both chapters and gomidehs.
[20] Petitioners note that Respondents stated an affirmative defense under section 7512, which provides that one-third of the voting power shall constitute a quorum at a meeting of the members. Petitioners argue that defense fails for two reasons. First, section 7512 provides that the bylaws may set a different quorum and the Bylaws changed the quorum to two-thirds of the chapters. Second, section 7512 refers to one-third “of the voting power”. Article 42c of the Bylaws set forth a formula for the delegate numbers from the chapters based on membership. For Respondents to claim they had one-third of the voting power at the Regional Convention, they need to set forth the number of members of each chapter, calculate the number of delegates the chapter can elect, and give a total of all delegates. Even if the 39 delegates present constituted one-third of the voting power, this fact could not override the Bylaws requirement that two-thirds of the chapters be present. Pet. Op. Br. at 6-7.
The short answer is that Respondents do not rely on the one-third voting power permitted by section 7512 except to note that the number of delegates at the Regional Convention far exceeded section 7512’s one-third. Entity Opp. at 13.
[21] Petitioners also argue (Reply at 8) that the Central Committee did not act consistently in excusing chapters from attendance because both the Glendale and San Fernando chapters were behind on their dues and yet were permitted to attend. Compare Ex. 3, p. 38J and Exs. 50, 54.
[22] ARFDW-USA further correctly states that “roll[ing] back the clock” from the December 2020 election to require a new election is not in the organization’s best interest. There will be another election within the next few months under the Bylaws, and two elections within a year are a poor use of resources. Entity Opp. at 14. ARFDW-USA also is correct that ARF and the Bureau must not have any authority to instruct or participate in the next Regional Convention, and that the election must result in only 11 Central Committee democratically elected members. See Entity Opp. at 14-15.