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SECOND AMENDED COMPLAINT for INJUNCTIVE and 21 V

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SECOND AMENDED COMPLAINT for INJUNCTIVE and 21 V 1 DAN SIEGEL, SBN 056400 SIEGEL & YEE 2 499 14th Street, Suite 220 3 Oakland, CA 94612 Telephone: (510) 839-1200 4 Telefax: (510) 444-6698 5 Attorneys for Plaintiffs 6 DAVID ADELSON, et al. 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 10 IN AND FOR THE COUNTY OF ALAMEDA 11 12 DAVID ADELSON, LAUREN AYERS, No. 814461-0 13 MARY BERG, JOANNE BOBB, LYDIA BRAZON, CECELIA CARUSO, GAIL DIXON, 14 ANNE EMERMAN, SHERRY GENDELMAN, TERRENCE GUY, JIM HORWITZ, KAHLIL 15 JACOBS-FANTAUZZI, DAWUD KHALIL-ULLAH, 16 PELE DE LAPPE, STEVE LUSTIG, ERROL MAITLAND, MIGUEL MALDONADO, ANDREW 17 NORRIS, LEWIS O. SAWYER JR., MARIALICE WILLIAMS, and FRIEDA ZAMES, individually, 18 and on behalf of all others similarly situated, 19 and on behalf of the Pacifica Foundation, 20 Plaintiffs, VERIFIED SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND 21 v. DECLARATORY RELIEF AND FOR DAMAGES FOR VIOLATIONS OF 22 PACIFICA FOUNDATION, a California Nonprofit THE CORPORATIONS CODE AND 23 Corporation, MARY FRANCES BERRY, DAVID FOR UNFAIR BUSINESS PRACTICES. ACOSTA, JUNE MAKELA, ANDREA CISCO, 24 FRANK MILLSPAUGH, KEN FORD, MICHEAL PALMER, WILLIAM LUCY, 25 and DOES 1-25, inclusive, 26 Defendants. 27 ___________________________________________/ 28 SECOND AMENDED COMPLAINT - 1 1 2 PRELIMINARY STATEMENT 3 1. Plaintiffs are members, contributors, and leaders of defendant PACIFICA FOUNDATION. 4 They bring this action (1) to restrain and enjoin the unlawful and undemocratic actions of a majority of 5 6 the Foundation’s Board of Directors and (2) to restrain and prevent the unlawful waste of the 7 Foundation’s assets for uses inconsistent with the purposes of the Foundation. The Board of 8 Directors, without proper notice and in excess of its lawful authority, has purported to amend the 9 Foundation’s bylaws to eliminate the membership’s role in the election of directors and to thereby 10 create a self-perpetuating Board without any accountability to the members and subscribers of the 11 Foundation. Unless restrained, the Board now threatens to utilize its newly created powers to abandon 12 13 the mission and historic role of the Pacifica radio network and threatens to sell one or more of the 14 Foundation’s five radio stations and/or station licenses. 15 PARTIES AND JURISDICTION 16 2. Plaintiff DAVID ADELSON is a member of defendant PACIFICA FOUNDATION within the 17 meaning of Corporations Code §5056, a donor to the Foundation, and a member and acting chair of 18 19 the Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California. 20 3. Plaintiff LAUREN AYERS is a member of defendant PACIFICA FOUNDATION within the 21 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 22 Advisory Board for Pacifica Radio Station KPFA in Berkeley, California. 23 4. Plaintiff MARY BERG is a member of defendant PACIFICA FOUNDATION within the 24 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 25 26 Advisory Board for Pacifica Radio Station KPFA in Berkeley, California. 27 28 SECOND AMENDED COMPLAINT - 2 1 5. Plaintiff JOANNE BOBB is a member of defendant PACIFICA FOUNDATION within the 2 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 3 Advisory Board for Pacifica Radio Station WBAI in New York, New York. 4 6. Plaintiff LYDIA BRAZON is a member of defendant PACIFICA FOUNDATION within the 5 6 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 7 Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California. 8 7. Plaintiff CECILIA CARUSO is a member of defendant PACIFICA FOUNDATION within 9 the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 10 Advisory Board for Pacifica Radio Station WBAI in New York, New York. 11 8. Plaintiff GAIL DIXON is a member of defendant PACIFICA FOUNDATION within the 12 13 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 14 Advisory Board for Pacifica Radio Station WPFW in Washington, D.C. 15 9. Plaintiff ANNE EMERMAN is a member of defendant PACIFICA FOUNDATION within the 16 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 17 Advisory Board for Pacifica Radio Station WBAI in New York, New York. 18 19 10. Plaintiff SHERRY GENDELMAN is a member of defendant PACIFICA FOUNDATION 20 within the meaning of Corporations Code §5056, a donor to the Foundation, and a member and chair 21 of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California. 22 11. Plaintiff TERRENCE GUY is a member of defendant PACIFICA FOUNDATION within the 23 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 24 Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California. 25 26 27 28 SECOND AMENDED COMPLAINT - 3 1 12. Plaintiff JIM HORWITZ is a member of defendant PACIFICA FOUNDATION within the 2 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 3 Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California. 4 13. Plaintiff KAHLIL JACOBS-FANTAUZZI is a member of defendant PACIFICA 5 6 FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a 7 member of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California. 8 14. Plaintiff DAWUD KHALIL-ULLAH is a member of defendant PACIFICA FOUNDATION 9 within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the 10 Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California. 11 15. Plaintiff PELE DE LAPPE is a member of defendant PACIFICA FOUNDATION within the 12 13 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 14 Advisory Board for Pacifica Radio Station KPFA in Berkeley, California. 15 16. Plaintiff STEVE LUSTIG is a member of defendant PACIFICA FOUNDATION within the 16 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 17 Advisory Board for Pacifica Radio Station KPFA in Berkeley, California. 18 19 17. Plaintiff ERROL MAITLAND is a member of defendant PACIFICA FOUNDATION within 20 the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 21 Advisory Board for Pacifica Radio Station WBAI in New York, New York. 22 18. Plaintiff MIGUEL MALDONADO is a member of defendant PACIFICA FOUNDATION 23 within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the 24 Local Advisory Board for Pacifica Radio Station WBAI in New York, New York. 25 26 27 28 SECOND AMENDED COMPLAINT - 4 1 19. Plaintiff ANDREW NORRIS is a member of defendant PACIFICA FOUNDATION within 2 the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 3 Advisory Board for Pacifica Radio Station WBAI in New York, New York. 4 20. Plaintiff LEWIS O. SAWYER JR. is a member of defendant PACIFICA FOUNDATION 5 6 within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the 7 Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California. 8 21. Plaintiff MARIALICE WILLIAMS is a member of defendant PACIFICA FOUNDATION 9 within the meaning of Corporations Code §5056, a donor to the Foundation, and a member and chair 10 of the Local Advisory Board for Pacifica Radio Station WPFW in Washington, D.C. 11 22. Plaintiff FRIEDA ZAMES is a member of defendant PACIFICA FOUNDATION within the 12 13 meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local 14 Advisory Board for Pacifica Radio Station WBAI in New York, New York. 15 23. Each of the plaintiffs named above brings this action on his or her own behalf and as a 16 derivative action pursuant to Corporations Code §5710 on behalf of the Pacifica Foundation. 17 24. Plaintiffs bring their third claim for relief herein on behalf of themselves and all other persons 18 19 similarly situated. The class of persons that plaintiffs represent in connection with the third claim for 20 relief consists of those individuals, whether members of the PACIFICA FOUNDATION or not, who 21 within the three years preceding the filing of this lawsuit have made financial contributions to 22 defendant PACIFICA FOUNDATION based upon defendants’ representations (1) that such 23 contributions would be utilized to carry out the well publicized, long-standing and historic purposes of 24 the PACIFICA FOUNDATION as set forth in the Foundation’s Articles of Incorporation and Bylaws 25 26 and in ¶¶ 30 and 31, below; and (2) that such contributions would be utilized to develop and construct 27 a permanent national headquarters for the PACIFICA FOUNDATION in the City of Berkeley. The 28 SECOND AMENDED COMPLAINT - 5 1 class of persons whom plaintiffs seek to represent in this matter is ascertainable, but its members are 2 so numerous that it would be impractical to join them all in this action. 3 25. Defendant PACIFICA FOUNDATION is a California Nonprofit Corporation which 4 maintained, as of the date this lawsuit was filed, its headquarters and principal place of business in the 5 6 City of Berkeley, County of Alameda. 7 26. Defendants MARY FRANCES BERRY, DAVID ACOSTA, JUNE MAKELA, ANDREA 8 CISCO, FRANK MILLSPAUGH, KEN FORD, MICHEAL PALMER, WILLIAM LUCY, and Doe 1 9 through Doe 10 are and were at all times relevant hereto directors of the defendant PACIFICA 10 FOUNDATION.
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