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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ALAMEDA - UNLIMITED JURISDICTION

Gf:. 1 0549 2 12BRIAN EDWARDS-TIEKERT, MITCH Case Number:~""JESERICH, and LEWIS SAWYER,

COMPLAINT FOR (1) INJUNCTIVERELIEF PURSUANT TO CALIFORNIACORPORATIONS CODE § 5617; AND (2)DAMAGES PURSUANT TO THE RIGHTOF FAIR PROCEDURE

v.

Defendants.

PACIFICA FOUNDATION, a CaliforniaNon-Profit Public Benefit Corporation,RENEE ASTERIA, FRANK STERLING, JR.and DOES 1-100, inclusive,

Plaintiffs,

HAROLD P. SMITH, ESQ. (SBN: 126985)KRISTA L. SHOQUIST, ESQ. (SBN: 264600)DHILLON & SMITH LLP214 Grant Avenue, Suite 400San Francisco, California 94108Telephone: (415) 433-1700Facsimile: (415) 520-6593

Attorneys for Plaintiffs Brian EdwardsTiekert, Mitch Jeserich, and Lewis Sawyer

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19 Plaintiffs Brian Edwards-Tiekert, Mitch Jeserich, and Lewis Sawyer ("Plaintiffs"), through

20 their attorneys, allege as follows:

21 INTRODUCTION

22 1. Pursuant to California Corporations Code § 5617, this action seeks to enforce the

23 fundamental right of members of the Pacifica Foundation ("Pacifica"), a California nonprofit

24 public benefit corporation, to have their votes for delegates to the Local Station Board of radio

25 station KPFA counted, and to have the duly elected delegates seated without interference from

26 Pacifica Foundation interests attempting to change the election results by disqualifying members

27 from voting after votes have been cast, counted, and results announced, in violation of Pacifica's

28 bylaws ("Bylaws") and the California Corporations Code.

Complaint for Injunctive Relief and DamagesPage 1

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1949. KPFA is a beloved Bay Area institution, and has long been an independent, listener-

including KPFA ("KPFA"), located in the city of Berkeley, County of Alameda.

2. Defendant Pacifica owns the broadcasting licenses of several radio stations,

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43. KPFA is the first listener-sponsored radio station in the United States, founded in

literary, artistic and musical criticism, and music from around the world. Its cutting-edge

National Board" or "PNB." Twenty of Pacifica's 22 directors are elected by delegates, as

programming is re-broadcast by numerous independent radio stations throughout the United

authorized by California Corporations Code section 5152.

Pacifica is governed by a board of directors, popularly known as the "Pacifica4.

States.

supported source ofthoughtful, progressive political commentary, programming on social justice,5

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by Pacifica, including KPFA. Pacifica's delegates are elected by members associated with their

California Corporations Code section 5153, with each unit associated with a radio station owned

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5. Pacifica's delegates are grouped within five organizational units, as authorized by

respective radio stations. At each radio station, members vote in two classes, as provided by

California Corporations Code 5041.

delegate seats at each station.

three-quarters of the delegate seats at each station, and "Staff-Members" elect one-third of the

The regular election for one-half of the delegate positions at KPFA is supervised by

"Listener-Sponsor-Members" associated with the respective radio stations elect6.

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an employee of Pacifica, the National Election Supervisor, and/or any local assistant that person

may choose to employ. The results of the 2010 election for KPFA's Delegates was initially

announced by the National Election Supervisor on or about October 11, 2010, who subsequently

selectively tossed out the votes of three or four staff members entitled to vote, thereby purportedly

changing the final outcome of the staff election and anointing a different position to one of the

four staff delegate openings than the full complement of legitimate voters chose.


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extremely popular "Morning Show."

the meaning of Bylaws Article III, Section 1.B. Until being removed from the air and given a

layoff notice effective December 8, 2010, Mr. Edwards-Tiekert was the co-host ofKPFA's

within the meaning of California Corporations Code § 5056, and a Staff Member of KPFA within

PARTIES AND JURISDICTION

Plaintiff Mitch Jeserich is a member of Defendant Pacifica Foundation within the

Plaintiff Brian Edwards-Tiekert is a member of defendant Pacifica Foundation9.

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8. Unless this Court rectifies Defendants' gross violations of its own Bylaws, the

Corporations Code, and the common law right of fair procedure, Pacifica will seat as a KPFA

meaning of California Corporations Code § 5056, and a Staff Member of Pacifica within the

meaning of Bylaws Article III, Section LB. Mr. Jeserich is the host ofKPFA's "Letters to

delegate an individual having no right to that position, and will deny the fundamental and vested

rights of both the staff members whose voted were expunged and the staff delegate candidate

elected by the full complement of staff votes.

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Washington" show, a syndicated program which airs nationally.

Corporation with its principal place of business in the City of Berkeley, County of Alameda.

National Elections Supervisor for 20 1O. Asteria previously served as Local Election Supervisor for

Plaintiff Lewis Sawyer is a member of Defendant Pacifica Foundation within the

Defendant Renee Asteria is a California resident hired by Pacifica to serve as its

Defendant Pacifica Foundation is a California Non-Profit Public Benefit

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meaning of Bylaws Article III, Section 1.B. Mr. Sawyer also hosts a radio program on KPFA,

"The Lewis Sawyer Experience," and performs off-air tasks at KPFA.

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KPFA in 2009. Upon information and belief, Asteria was personally selected to serve as local, and

then National, Election Supervisor by Tracy Rosenberg, presently a KPFA director, a KPFA

delegate to the PNB, and the Chair of the PNB's Election Committee for 2010.


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extremely popular "Morning Show."

the meaning of Bylaws Article III, Section 1.B. Until being removed from the air and given a

layoff notice effective December 8, 2010, Mr. Edwards-Tiekert was the co-host ofKPFA's

within the meaning of California Corporations Code § 5056, and a Staff Member of KPFA within

PARTIES AND JURISDICTION

Plaintiff Mitch Jeserich is a member of Defendant Pacifica Foundation within the

Plaintiff Brian Edwards-Tiekert is a member of defendant Pacifica Foundation9.

10.

8. Unless this Court rectifies Defendants' gross violations of its own Bylaws, the

Corporations Code, and the common law right of fair procedure, Pacifica will seat as a KPFA


meaning of Bylaws Article III, Section LB. Mr. Jeserich is the host ofKPFA's "Letters to

delegate an individual having no right to that position, and will deny the fundamental and vested

rights of both the staff members whose voted were expunged and the staff delegate candidate

elected by the full complement of staff votes.

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Washington" show, a syndicated program which airs nationally.

Corporation with its principal place of business in the City of Berkeley, County of Alameda.

National Elections Supervisor for 20 1O. Asteria previously served as Local Election Supervisor for

Plaintiff Lewis Sawyer is a member of Defendant Pacifica Foundation within the

Defendant Renee Asteria is a California resident hired by Pacifica to serve as its

Defendant Pacifica Foundation is a California Non-Profit Public Benefit

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meaning of Bylaws Article III, Section 1.B. Mr. Sawyer also hosts a radio program on KPFA,

"The Lewis Sawyer Experience," and performs off-air tasks at KPFA.

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KPFA in 2009. Upon information and belief, Asteria was personally selected to serve as local, and

then National, Election Supervisor by Tracy Rosenberg, presently a KPFA director, a KPFA

delegate to the PNB, and the Chair of the PNB's Election Committee for 2010.


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and announced on October 11, 2010.

in the manner described below, or some other manner, for the wrongful occurrences described in

14. Defendant Frank Sterling, Jr. is a California resident who ran as a candidate in the

corporate, associate, or otherwise, presently are unknown to Plaintiffs, who therefore sue them in

The true names and identities of Defendants Does 1-100, whether individual,15.

third-highest candidate, and thus a winner of the third Staff Delegate position replacing the third

highest candidate in the original election - Plaintiff Lewis Sawyer - when all votes were counted

KPFA 2010 Staff Election at issue in this complaint. After the votes of three or four electors were

disqualified after the fact on November 8, 2010, Defendant Frank Sterling, Jr., was declared the

their fictitious capacities as permitted by Code of Civil Procedure § 474. Plaintiffs are informed

and believe, and on that basis allege, that each of the fictitiously named defendants is responsible

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this Complaint, and proximately caused some or all of the damages claimed. Plaintiffs are

informed and believe that some of the Doe defendants are California residents, while others are

residents ofjurisdictions including Texas, New York, Washington, D.C. and other U.S.

15jurisdictions - all of whom were well aware that their actions would affect Plaintiffs in California.

1616. Plaintiffs believe and allege that Ms. Asteria and some or all of the Doe defendants

their acts under California law.

monetary damages, this action is properly classified as unlimited.

California Corporations Code.

Amended and Restated Bylaws presently in effect and by the applicable provisions of the

FACTUAL ALLEGATIONS

Pacifica's Bylaws govern the qualifications for electors and candidates

As a California Non-Profit Public Benefit Corporation, Pacifica is governed by its

Because Plaintiffs seek permanent injunctive and declaratory relief in addition to

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individually liable for their acts and cannot seek indemnification from Pacifica or its insurers for

participating in its annual elections for KPFA Delegates, who also comprise a committee of the

acted recklessly, intentionally and/or with malice to injure Plaintiffs, such that they are17

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Pacifica National Board called the KPFA Local Station Board. Each station's delegates meet

KPFA-elected delegates on the LSB - six elected by staff, and 18 elected by listener-sponsors.

Listener-Sponsor Delegates are elected in the first year of a three year cycle. An additional three

Staff Delegates and nine Listener-Sponsor Delegates are elected in the second year of the cycle,

with no elections taking place in the third year of a cycle. At any given time, there are a total of 24

annually in January for the purpose of electing Station Representative Directors to the Pacifica

National Board of Directors ("PNB"). There are two classes of delegates and corresponding

Directors - Staff Delegates and Listener-Sponsor Delegates. LSB Delegate elections are staggered

over a three-year period. Pursuant to Bylaws Article 4, § 3, three Staff Delegates and nine

As defined by Bylaws, Article III, Section 8.A., Staff Members as of the "Record20.

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11Date" of 45 days before ballots are first made available, may vote in that year's elections:

kept secret.

22. Each voter in the Staff Election was entitled to select and rank candidates for the

the criteria for Staff Members entitled to vote, and have cast their votes be counted, in the KPFA

under Section 10 of this Article of these Bylaws shall be entitled to

the Members for a vote.

The KPFA 2010 Staff Election (the "Election") concluded on September 30, 2010,21.

practice, this roster is meant to be destroyed after the election is certified, as the ballots are to be

2010 Staff Election. In addition, Plaintiff Sawyer met the criteria set by the Bylaws for a staff

candidate entitled to run in the Staff Election.

and ballots were first made available to voters on August 15, 2010. All three named Plaintiffs met

three open staff seats in a system managed by a computerized ranked choice voting protocol. Each

roster of which elector received which ballot. It is generally understood that, in keeping with past

ballot is assigned a unique bar code number, with only the National Election Supervisor having a

vote by written ballot as to any matter that properly comes before

All Members in good-standing on the record date as determined12

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24. Renee Asteria announced the results of the initial vote count for the KPFA 2010

date was October 15,2010.

To The Chagrin Of The Losing Faction

The Complete Staff Election Results Are Announced On October 11, 2010 -

Upon learning of the election results, PNB Director and LSB Delegate Tracy25.

Bylaws.

23. Article IV, Section 5 of The Pacifica Bylaws requires the National Elections

Supervisor to certify the election results within 15 days after the close of balloting. In 2010, this

Lewis Sawyer had won the Staff Election, with Sawyer winning his seat by a close margin over

the fourth candidate, Defendant Frank Sterling, Jr. The initial election returns indicated that 167

Staff Election on October 11,2010 - indicating that Shahram Aghamir, David Gans and Plaintiff

ballots had been counted. While Asteria "announced" these results, and posted them online to

pacificaelections2010.org, she failed to certify them by October 15 as required by the Pacifica12

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16Rosenberg, the Chair ofPNB's Election Committee, upon information and belief, was extremely

dissatisfied, if not enraged, by the results. Rosenberg is a leader of a Pacifica faction calling itself17

the "Independents for Community Radio," or "ICR." Ofa slate of three, two ICR Staff Members

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who ran on the ICR slate for the 2010 LSB Staff Election - Frank Sterling, Jr. and Gabrielle

Wilson - failed to get elected; the third, Aghamir, was elected. The "ICR" slate for the KPFA

elections can be seen at http://www.indyradi02009.org/content/about-independents-community

radio-icr, which shows Rosenberg, Aghamir, Sterling and Wilson running together on the same

election redone prior to November 15,2010."

Committee "strongly recommend []" that Renee Asteria invalidate the October 11, 2010

announced results "due to gross and repeated violations of the Fair Campaign Provisions and the

12, 2010 Ms. Rosenberg, in her capacity as Chair of the PNB Election Committee, moved that the

Using Pacifica Foundation resources on behalf of her ICR faction, on November26.

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27. Ms. Rosenberg sent her email with her proposed motion and "Supporting

Information" to the [email protected]. The "Supporting Information"

accused unnamed Staff Members of criticizing PNB and LSB directors/delegates for compiling a

"hit list" of paid Staff Members to be terminated due to purported budgetary issues at Pacifica.

528. Ms. Rosenberg's email specifically stated that the impact of the alleged

Jr. for the LSB by exactly one vote."

unidentified staff members' speech was that "Significant damage was done to the candidacies of

IRC-affiliated staff candidates Frank Sterling Jr [sic] and Gabrielle Wilson ... The 2010 staff

election is presenting the uncertified result of a defeat of ICR-affiliated candidate Frank Sterling

Upon information and belief, the Election Committee of the PNB passed Ms.29.

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Rosenberg's motion.

resolution in substantially the same, if not identical, form as proposed by Ms. Rosenberg.

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Upon information and belief, the Pacifica National Board went on to pass the same

Ms. Rosenberg is no stranger to interfering with PNB and KPFA LSB elections. In

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2007, as a newly elected LSB member, she took it upon herself to "help" the paid election staff for

the KPFA LSB Staff Election, JaNay Jenkins, by emailing replacement ballots to Staff Members

and asking that the filled-out ballots be emailed back to her.

1832. Upon information and belief, Ms. Rosenberg was given no authority to participate

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in the 2007 KPFA LSB election in any manner. In that election, Ms. Rosenberg was accused of

rearranging the order in which the Staff Member candidates appeared on the ballot and sending

out email replacement ballots with the preferential placement she preferred.

Edwards-Tiekert. After Mr. Edwards-Tiekert raised numerous concerns to the Pacifica National

hired to run the election who admitted she thought the Bylaws were "only guidelines," Jenkins

Bonnie Simmons, host of the popular The Bonnie Simmons Show on KPFA, and Plaintiff Brian

Board as to gross improprieties in the recall election process by JaNay Jenkins, a contract staffer

In 2009, Ms. Rosenberg engineered a failed recall election against Staff Members33.

responded to Mr. Edwards-Tiekert by email dated June 29, 2009. The email attached a Word

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conscience.

remark on the Pacifica election returns website:

Asteria Selectively Disqualifies Ballots, and Changes the Staff Election Outcome

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Asteria provided no explanation whatsoever as to which staff members' votes she

On or about November 8, 2010 - nearly six weeks after the election and nearly one

the final count. (Emphases added.)

Upon information and belief, Renee Asteria, Ms. Rosenberg's hand-picked

In short, for the past several years there has been a troubling pattern of misconduct

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not.

had chosen to expunge, given that the ballots were supposed to be secret, or what the alleged "on

air campaign violations" were. Importantly, none of the allegedly "offending" Staff Members

the 3 offending staff members have had their vote removed from

consequence, as an alternative to redoing the entire staff election,

occured [sic] the last 2 days of the election, which went on without

month after she announced the official election results online, Asteria posted the following cryptic

yielding the result that Frank Sterling finished within the top three and Plaintiff Lewis Sawyer did

the computer program to identify the three highest vote getters under the ranked choice system,

time, Rosenberg held no official role in the election - other than being the LSB member initiating


In order to compensate for to the on-air campaign violations which

misusing her supposedly secret roster tying Staff Member names to numbered ballots, and re-ran

breach of any standard of impartiality or propriety for an election.

deadline of October 15,2010, conferred with Ms. Rosenberg and possibly other ICR affiliates

about which individual Staff Member ballots should be thrown out, eliminated those ballots by

the recall election. Her clear participation in the actual supervision of the election was a gross

candidate, hired and paid by Pacifica to oversee the Election, proceeded to ignore the certification

surrounding elections at Pacifica, with conduct that is so grossly improper as to shock the

document that, according to its embedded metadata, had been drafted by Ms. Rosenberg. At the

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were given any notice whatsoever of the "charges" against them. Nor did Asteria provide any

vested right to vote, without notice, authority, hearing or any showing of cause.

basis in the law or the Bylaws for the extraordinary "remedy" of stripping Staff Members of their2

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438. On or about November 8, 2010, Asteria retroactively changed the 2010 KPFA Staff

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Election results, announcing that a count of 163 ballots yielded Aghamir (an ICR affiliated

candidate), Gans and Sterling (another ICR candidate specifically mentioned by Rosenberg in her

email missive decrying the true election results) as the Staff Election winners, with Sawyer losing

by a margin ofless than one vote as a result of the three (or four, according to the difference

between the 167 ballots originally counted and the 163 ballots Asteria ultimately chose to count)

ballots being disqualified by Asteria.

of delegates at 12-12.

Delegate elections by a margin creating a 11-13 majority to securing an evenly divided assembly

the presently governing ICR faction of the LSB - and the PNB - went from losing the 2010 KPFA

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The result of Asteria's illegal manipulation of the final ballot and vote count is that

Pacifica's Bylaws incorporate "Fair Election Provisions" pertaining to the election

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of Listener candidates. These provisions found at Bylaws, Article IV, § 6, state in pertinent part:

No Foundation or radio station management or staff (paid or

unpaid) may use or permit the use of radio station air time to

endorse, campaign or recommend in favor ofor against any

candidate(s) for election as a Listener-Sponsor Delegate, nor may

air time be made available to some Listener-Sponsor Delegate

candidate(s) but not to others. All candidates for election as a

Listener-Sponsor Delegate shall be given equal opportunity for

equal air time, which air time shall include time for a statement by

the candidate and a question and answer period with call-in

listeners. No Foundation or radio station management or staff (paid

or unpaid) may give anyon-air endorsements to any candidate(s)


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for Listener-Sponsor Delegate. The Board of Directors may not,

2nor may any LSB nor any committee of the Board or of an LSB, as

3a body, endorse any candidate(s) for election as a Delegate.

441. Given Asteria's vague reference to "on-air violations" occurring during the last two

5days of balloting - September 29 and 30 - only a handful of possible staff members' votes could

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have been affected by her rear-guard action of selectively throwing out votes until a desired result

was reached. Both Plaintiffs Mitch Jeserich and Brian Edwards-Tiekert were on the air on one or

both of last two days of the election. Both made reference on the air to the fact that three then-

seated PNB members - who they neither named nor identified - were pushing for the firing of a

list of paid staffers. On September 30, Edwards-Tiekert also made reference to the fact that he was

one of the staff members targeted for elimination by the three unnamed directors who drafted the

"hit list" - who, not coincidentally, are also members of the ICR faction that lost seats in the

original election results announced by Asteria. One of those directors is Tracy Rosenberg.

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1442. During their on-air remarks on the last two days of balloting, neither Edwards-

Tiekert, nor Jeserich, nor one nor more of the other unnamed staff members whose votes are

any candidate - Listener-Sponsor or Staff.

manifestly do not include disqualifying the allegedly offending members' votes. Pursuant to

candidate, nor identified any candidate - Listener-Sponsor or Staff, nor campaigned for or against

Even if any Staff Member entitled to vote in the 2010 LSB elections had, in fact,43.

violated the Fair Campaign Provisions, under Pacifica's Bylaws the remedies for such violations

suspected to have been stricken by Asteria, made any reference to any particular Listener-Sponsor

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22Article IV, § 6, the National Election Supervisor may only disqualify a candidate who is behind

23on-air electioneering, or suspend the on-air staff member for the balance of the balloting period:

24In the event of any violation of these provisions for fair

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campaigning, the local elections supervisor and the national

elections supervisor shall determine, in good faith and at their sole

discretion, an appropriate remedy, up to and including


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disqualification of the candidate(s) and/or suspension from the air

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of the offending staffperson(s) (paid or unpaid) for the remainder

of the elections period.

Nowhere do the Bylaws permit any election supervisor unilaterally to strike the

heard, violate the California Corporations Code, as described below.

take any action concerning disqualification of a candidate and/or suspension of a staff member

provision purporting to allow the National Election Supervisor and local elections supervisor(s) to

from the air "at their sole discretion" and without any specified fair procedure or opportunity to be

The California Corporations Code, § 5341, sets forth the rule of fair procedure that45.

votes of members legally entitled to vote. They cannot, as any such provision would directly

violate the Corporations Code. Moreover, it should be noted that even the Pacifica Bylaws

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governs any California Corporation's limitation on a member's rights. In pertinent part, the Code12

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provides as follows:

(a) No member may be expelled or suspended, and no15

membership or membership rights may be terminated or

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17suspended, except according to procedures satisfying the

requirements of this section. An expulsion, termination or

18suspension not in accord with this section shall be void and

without effect.

good faith and in a fair and reasonable manner. Any procedure

which conforms to the requirements of subdivision

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(b) Any expulsion, suspension or termination must be done in

23(c) is fair and reasonable, but a court may also find other

the suspension, termination, or expulsion are considered.

procedures to be fair and reasonable when the full circumstances of24

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(d) A procedure is fair and reasonable when:


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e e(1 ) The provisions of the procedure have been set forth

2in the articles or bylaws, or copies of such provisions are

3sent annually to all the members as required by the articles

4or bylaws;

therefor; and

expulsion, termination or suspension not take place.

effective date of the expulsion, suspension or termination

expulsion, suspension or termination and the reasons

It provides the giving of 15 days prior notice of the

It provides an opportunity for the member to be(3)

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heard, orally or in writing, not less than five days before the

by a person or body authorized to decide that the proposed

Corporations Code, § 5341 (emphases added).

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Pacifica unilaterally have purported to do.

procedure to be employed in determining whether critical membership rights - the right to vote,

and the right to have those votes counted - could be terminated or suspended, as Ms. Asteria and

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Pacifica provided Plaintiffs Edwards-Tiekert and Jeserich no notice of the

Pacifica provided Plaintiffs Edwards-Tiekert and Jeserich no notice - much less 15

19days' notice - of the expulsion, suspension or termination of their voting rights, nor any

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meaningful notice ofthe reasons for their disenfranchisement. Indeed, to date, Ms. Asteria has

refused to respond at all to inquiries by Mr. Edwards-Tiekert and Plaintiffs' counsel as to the basis

explain their actions or provide any hearing whatsoever.

or in writing, concerning the planned extinguishment of their voting rights, much less the five

as yet unknown Staff Member(s) whose votes were tossed out) no opportunity to be heard, orally

days' notice required by statute. To date, Ms. Asteria and Pacifica have stonewalled and refused to

Defendants provided Plaintiffs Edwards-Tiekert and Jeserich (as well as the other,48.

for her actions.22

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2

Plaintiffs' Attempts To Resolve This Matter

49. On or about November 9, 2010, immediately upon learning of Ms. Asteria's end

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run around both the Pacifica Bylaws and the California Corporations Code fair procedure statutes,

Plaintiff Edwards-Tiekert wrote to Ms. Asteria by email, asking her to identify which votes she

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had chosen to disqualify. She failed to respond.

50. On November 12, the undersigned counsel for Plaintiffs wrote a detailed, nine-page

letter to Ms. Asteria, Pacifica General Counsel Ricardo DeAnda (based in Lubbock, Texas) and

Pacifica General Manger Arlene Engelhardt, setting forth the applicable Bylaws and statutory

provisions clearly demonstrating the ultra vires and illegal nature of Ms. Asteria's selective,

results-oriented, post hoc vote manipulation. The letter requested a response by November 16,

2010. Pacifica did not respond by November 16.

by Friday, November 26. He then failed to provide any substantive response on November 26.

a written response to Plaintiffs' demand that Messrs. Edwards-Tiekert' sand Jeserich' s and other

unnamed staff members' votes be counted and Mr. Sawyer be seated as the duly elected third Staff

Delegate on the LSB. Mr. DeAnda assured counsel that he would provide a substantive response

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51. On November 23,2010, the undersigned counsel spoke to Mr. DeAnda, requesting

agreement for Saturday, December 4. Mr. DeAnda expressed the view that he was almost certain

nor discussed it with his client. Counsel for Plaintiffs pressed for an answer, given the

have a substantive response to the November 12,2010 letter, having not had the opportunity to

understanding that the organizational meeting of the KPFA LSB had been scheduled by board

On the afternoon of Monday, November, 29, Mr. DeAnda called the offices of

On November 27,2010 the undersigned counsel received a call from Mr. DeAnda

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wherein Mr. DeAnda indicated that he had not yet fully reviewed the November 12,2010 letter,

that there would in fact be no board meeting on December 4, but that it would take place a week or

two later. Counsel for Plaintiffs requested a substantive response to the November 12, 2010 letter

no later than the close of business on Monday, November 29.

Plaintiffs' counsel and spoke to partner Harmeet K. Dhillon. Mr. DeAnda indicated that he did not

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interview Ms. Asteria regarding the basis for her change of the election results, nor had he

discussed the matter substantively with members of the PNB to whom he reports. He also

informed Ms. Dhillon that he had recommended changing the date of the December KPFA

meeting from December 4 to some unspecified date in the future, and that the LSB Chairman,

Accordingly, on November 30, Mr. DeAnda retracted his instruction to move the board meeting,

Anthony Fest, had already sent out a notice to this effect shortly before Mr. DeAnda's call to Ms.

DeAnda and/or Mr. Fest heard numerous protests from KPFA LSB members that the unilateral

moving of the date of the LSB meeting was not permitted under the applicable bylaws.

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Dhillon.

54. Upon information and belief, immediately following the call to Ms. Dhillon, Mr.

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which presumably will take place on December 4 as originally scheduled and duly noticed.

55. On the morning of December 1, 2010, the undersigned counsel sent an email to

Frank Sterling Jr. and Ricardo DeAnda, informing them that as Pacifica refused to correct its gross

violations of its own bylaws and statutes detailed above, Plaintiffs had no choice but to file a

complaint and seek expedited relief and giving them notice of Plaintiffs' intent to seek ex parte

relief.

email. During the phone call, Mr. DeAnda stated that he believed, as counsel, that the initial

election results announced by Ms. Asteria must be certified as final by Pacifica, regardless of Ms.

Asteria's subsequent acts, including attempts to throw out the election results. Mr. DeAnda stated

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56. On the morning of December 1,2010, Mr. DeAnda responded by telephone to the

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that he would write a letter, later in the week, to the Executive Director of the Pacifica Foundation,

Arlene Engelhardt, stating his legal opinion that the original election results must be certified. The

ultimate decision on which results to certify, DeAnda noted, was in the hands of the Pacifica

National Board. DeAnda also noted that he had attempted to reason with Ms. Asteria concerning

her actions, but that she adamantly refused to correct her manipulation of the original vote count.

as Ms. Rosenberg, and their sympathizers. This fact is underscored by the PNB's endorsing Ms.

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57. The Pacifica National Board presently is dominated by fellow ICR members such


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Rosenberg's blatantly partisan misuse of her office to engineer her desired results when the true

2election results demonstrated that the Staff Members voting in the KPFA LSB Staff Election did

2010 Staff Election.

58. If Defendants' actions are allowed to stand, Plaintiffs Edwards-Tiekert and

not elect Mr. Sterling or Ms. Wilson. Pacifica took these actions and/or ratified other Defendants'

Jeserich, as well as one or two as yet unknown Staff Members whose votes were discarded, will

If Ms. Asteria's changing of the final vote tally after discarding three (or four) staff59.

unfairly be denied their vested right to vote, and to have those votes counted, in the KPFA LSB

actions in the face of Bylaws and the California Corporations Code which bar any such outcome.

The Consequences of Defendants' Illegal and Ultra Vires Actions

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members' votes is allowed to stand, Mr. Sawyer will be denied several important rights: the right

to be seated as a Staff Delegate for a three-year term; the right to participate in the December

organizational meeting and vote on officers of the newly constituted LSB; the right to run as a

candidate for Station Representative Director to the PNB; the right to nominate candidates for the

13-11 and loss of power to the ICR faction desiring to cling to the gavel, to an evenly divided

PNB; and the right to participate in the setting of the January meeting date at which PNB Station

Representative elections are held by the LSB.

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1860. Defendants' actions changed the count of KPFA Delegates from a clear majority of

desire to stay in control, is inescapable and flows as night flows from day.

manipulated weeks after the election to suit the PNB'sand KPFA LSB' s controlling factions'

board of 12-12. This changed vote, favoring the faction in power, is inherently suspicious,

malicious, in bad faith and dishonest. The conclusion that the outcome of the election was

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here.

61.

FIRST CAUSE OF ACTION

For Injunctive Relief Pursuant to Corporations Code § 5617

Plaintiffs repeat and incorporate the allegations set forth above as if fully set forth


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62. Plaintiffs Edwards-Tiekert and Jeserich's Pacifica staff membership privileges

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included the right to vote, and have their votes counted, in the 2010 KPFA Staff Election - a right

illegally stripped from them by Defendants' encouragement, actions, ratification and/or

acquiescence, in direct violation of California Corporations Code §§ 5611 and 7341.

KPFA LSB Staff Delegate - a right that he enjoyed until Defendant Asteria, with the

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663. Plaintiff Sawyer had the right to run for and be duly elected to the position of

7encouragement, actions, ratification and/or acquiescence of the other Defendants, wrongfully

terminated, without any basis in the Bylaws or statute.

the validity ofthe election results announced by Pacifica through Ms. Asteria on November 9.

to determine the validity of any election or appointment of any director of the KPFA LSB.

for fixing a later date for the hearing to determine the validity of the 2010 KPFA Staff Election

Pursuant to California Corporations Code § 5617(a) & (d), this Court is empowered

Pursuant to California Corporations Code § 5617 (c), this Court shall fix a hearing

By virtue of Defendants' Pacifica, Asteria and Does 1-100's violations of

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date not more than five days from the date of filing of this Complaint, unless good cause is shown

§§ 5611 and 7341, Plaintiffs, as Members of Pacifica, are entitled to this Court's determination of

California Corporations Code sections governing director elections, including Corporations Code

and, in particular, whether Mr. Sawyer's original election to one of the three open Staff Delegate

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positions should be recognized and enforced.

right of members - including Plaintiffs Edwards-Tiekert and Jeserich - to vote and may direct

Election, and awarding attorney's fees and costs related to this action.

such relief as is just and proper with regard to the 2010 KPFA Staff Member Election, including

declaring Mr. Sawyer the winner, declaring that Defendant Sterling is not a winner of the Staff

Pursuant to California Corporations Code § 5617(d), this Court may determine the67.

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SECOND CAUSE OF ACTION2

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468.

5here.

669.

For Violation of the Common Law Right of Fair Procedure

(Against Defendants Pacifica, Asteria and Does 1-100)

Plaintiffs repeat and incorporate the allegations set forth above as if fully set forth

Defendants Pacifica, Asteria and Does 1-100 have deprived Messrs. Edwards-

of fair procedure recognized by California law.

and the votes of either one or two other staff members entitled to vote, and refusing to certify Mr.

reasons for the decision, and without affording them an opportunity to respond to those purported

Sawyer as a winner of the 2010 LSB Staff Election, and in refusing to provide any notice or

Ms. Asteria's actions disregarding Messrs. Edwards-Tiekert and Jeserich's votes70.

procedure whatsoever - much less fair notice or procedure - clearly violate the common law right

reasons.

Tiekert and Jeserich of their votes without first providing them reasonable notice enumerating the7

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1571. Upon information and belief, one or more Doe Defendants - including members of

16the current Pacifica National Board and members of the originally losing ICR faction in the KPFA

LSB 2010 election - maliciously, deliberately, and recklessly instructed Ms. Asteria to take her

illegal actions and manipulate the Staff Election results, disenfranchising Messrs. Edwards-Tiekert

and Jeserich as well as one or two other staff members, and robbing Mr. Sawyer of his rightful

place on the LSB, all in violation of both Pacifica's Bylaws and the right of fair procedure.

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2172. Defendant Pacifica has ratified and adopted the other Defendants' illegal acts by

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failing to stop Ms. Asteria from changing the final Staff Election vote count, failing to provide any

fair process whereby Staff electors could defend their right to have their votes counted, and failing

in any substantive way to respond to repeated inquiries from counsel and Plaintiffs concerning the

vote manipulation.

Election, without first providing Mr. Sawyer reasonable notice enumerating the reasons for this

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73. Defendants have refused to certify Mr. Sawyer as a winner of the 2010 LSB Staff


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impartial observer.

changed determination, and without affording Mr. Sawyer an opportunity to respond to those

reasons, or indeed affording any process whatsoever that would be considered fair by any2

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474. As a proximate result of Defendants' actions, each Plaintiff has suffered damages

5according to proof at trial.

PRAYER

WHEREFORE, Plaintiffs pray as follows:

DATE: December 1,2010

By:

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1.

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For injunctive relief requiring Defendants to reveal which Staff Members' votes

were disqualified, and on what legal basis;

For injunctive relief, pursuant to California Corporations Code § 5617,

commanding Pacifica to reinstate the votes of Plaintiffs Edwards-Tiekert and

Jeserich and any other Staff Members whose votes were unfairly disregarded, to

include such votes in the final count of the Election;

For injunctive relief barring Pacifica from in the future imposing illegal remedies

such as stripping qualified Members of any class of their voting rights solely on the

basis of their speech;

For declaratory relief pronouncing Lewis Sawyer as a duly elected Staff Delegate

instead of Frank Stirling, Jr.;

For damages according to proof at trial;

For costs of suit incurred herein, including attorneys' fees; and

For such other and further relief as the Court may deem just, equitable, or proper.

HAROLD P. SMITHAttorneys for Brian Edwards-Tiekert,Mitch Jeserich, and Lewis Sawyer


DHILLON & SMITH LLP

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