Cosentino v. Fuller

Filed 6/22/15 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BENEDICT COSENTINO,
Plaintiff and Appellant, G050923
v. (Super. Ct. No. MCC1300396)
STELLA FULLER et al., ORDER (1) MODIFYING OPINION;
(2) DENYING REHEARING; AND
Defendants and Respondents. (3) DENYING DEPUBLICATION;
NO CHANGE IN JUDGMENT
On the court’s own motion, it is ordered the opinion filed in the above-
entitled matter on May 28, 2015, is hereby MODIFIED as follows:
1. On page 3, the final sentence of the partial paragraph at the top of
the page, starting with “Sovereign immunity prevents us from inquiring,” replace the
word “using” with the word “abusing” and insert “for their own personal benefit” at the
end of the sentence, so the sentence reads as follows:
Sovereign immunity prevents us from inquiring into the reliability of
information Defendants may have relied upon in revoking Cosentino’s
license or any other errors they may have made, but it does not prevent
inquiry into whether Defendants exceeded their authority by abusing their
official positions to intentionally harm Cosentino for their own personal
benefit.
2. On page 6, the first sentence of the fourth paragraph, starting with
“In March 2013, Cosentino filed this action,” insert the words “in their individual
capacities” between the words “Defendants” and “alleging,” so the sentence reads as
follows:
In March 2013, Cosentino filed this action against Defendants in their
individual capacities, alleging claims for (1) intentional interference with
prospective economic advantage; (2) negligent interference with
prospective economic advantage; (3) intentional interference with the right
to pursue a lawful occupation; (4) violation of Civil Code section 52.1;
(5) intentional infliction of emotional distress; and (6) negligent infliction
of emotional distress.
3. On page 7, delete the text of footnote number 1 and replace it with
the following:
Cosentino contends he did not name the Gaming Commission or the
Pechanga Band as defendants in this action because he anticipated they
would assert tribal sovereign immunity. Instead, he sought to arbitrate his
claims against the Gaming Commission and the Pechanga Band under the
Tribal-State Compact. When they refused, Cosentino filed a petition in
federal court to compel them to arbitrate his claims. The U.S. District
Court denied the petition, and Cosentino’s appeal from that decision is
pending in the Ninth Circuit Court of Appeals. ~(Open Brief p.11)~
4. On page 10, the last sentence of the first full paragraph, starting with
“Sovereign immunity, however, may limit,” delete that entire sentence and replace it with
the following:
Public Law 280 therefore grants California courts jurisdiction over civil
disputes involving individual tribal members, but it does not grant
jurisdiction over an Indian tribe. (Lamere v. Superior Court (2005)
2
131 Cal. App. 4th 1059, 1064 [Public Law 280 “‘seems to have been
primarily intended to redress the lack of adequate Indian forums for
resolving private legal disputes between reservation Indians, and between
Indians and other private citizens. . . .’ [Citation.] Its effect is therefore ‘to
grant jurisdiction over private civil litigation involving reservation Indians
in state court.’ . . . [¶] It is very clear that Public Law 280 does not
provide jurisdiction over disputes involving a tribe”]; Long v. Chemehuevi
Indian Reservation (1981) 115 Cal. App. 3d 853, 857.)
5. On page 10, the second paragraph, starting with “‘Under federal law,
an Indian tribe,’” add the following sentence as the first sentence in the paragraph:
Sovereign immunity, however, may limit the reach of state law, including
state tort law.
6. On page 11, after the second paragraph, starting with “An official’s
commission of a tort,” insert the following paragraphs:
To avoid individual liability for their actions, Defendants
repeatedly characterize Cosentino as suing them in their official rather than
individual capacities. According to Defendants, we must treat this action as
an action against the Gaming Commission or the Pechanga Band because
Cosentino based his claims on official actions Defendants took as members
of the Gaming Commission. Defendants, however, may not recast
Cosentino’s claims. The claims belong to Cosentino and it is for him to
decide what claims to allege, against whom to allege them, and in what
capacity to name Defendants. Defendants may argue Cosentino’s
allegations do not state a claim against them in their individual capacity or
that the allegations establish a defense to the claims, but Defendants may
not change Cosentino’s allegations.
3
Cosentino unmistakably alleges all claims against Defendants
in their individual capacities on the theory Defendants abused and exceeded
their official authority as members of the Gaming Commission, and
therefore are individually liable and not entitled to the protection of
sovereign immunity. Cosentino did not name the Gaming Commission or
the Pechanga Band as a defendant, and he did not request reinstatement or
any other relief against those entities. Instead, Cosentino solely sought
monetary damages against Defendants in their individual capacities. As
explained above, when an official acts in a manner that exceeds or conflicts
with his or her valid authority, the official’s actions are considered
individual rather than sovereign actions. (See, e.g., Turner, supra,
82 Cal.App.4th at p. 1055.) Accordingly, we focus on the standards for
determining whether a tribal official acted in his or her official capacity and
within the scope of his or her official authority to determine whether
Defendants are entitled to sovereign immunity protection. Defendants’
reliance on cases and other authority addressing how and when sovereign
immunity applies to an Indian tribe is misplaced and we disregard those
authorities.
7. On page 16, after the first full sentences at the top of the page,
starting with “Defendants also failed to present any authority,” add the following new
footnote number 4:
4
In their rehearing petition, Defendants for the first time
contend the Gaming Commission had authority to revoke Cosentino’s
license without cause as part of the Tribe’s inherent sovereign authority
over tribal gaming licenses. We refuse to consider an issue Defendants
raise for the first time in a rehearing petition absent extraordinary
circumstances justifying the failure to raise the issue earlier. (J.J. v. County
of San Diego (2014) 223 Cal. App. 4th 1214, 1230, fn. 5; see People v.
Holford (2012) 203 Cal. App. 4th 155, 159, fn. 2 [“it is ‘too late to urge a
4
point for the first time in a petition for rehearing, after the case ha[s] been
fully considered and decided by the court upon the points presented in the
original briefs’”].) Cosentino’s opening brief repeatedly argued the
Gaming Commission’s authority to revoke his license was limited to the
specific grounds identified in the IGRA, the Tribal-State Compact, and the
Pechanga Ordinance. Defendants provide no explanation why they did not
raise this issue in their respondent’s brief.
8. On page 16, the last sentence of the partial paragraph at the top of
the page, beginning with “Accordingly, as in Turner,” add the words “at this stage of the
proceedings” to the end of the sentence, so the sentence reads as follows:
Accordingly, as in Turner, Cosentino’s allegations and evidence that
Defendants exceeded their authority by revoking his license without cause
defeat Defendants’ claim of sovereign immunity at this stage of the
proceedings.
9. On page 19, after the last sentence of the first full paragraph, starting
with “To the contrary, the law withholds sovereign immunity,” add the following new
footnote number 5:
5
In their rehearing petition, Defendants contend sovereign
immunity for tribal officials is absolute, and therefore applies even when
tribal officials act maliciously with the intent to harm someone.
~(Rehearing Petition pp. 19-26)~ This contention, however, ignores
Turner’s statement that “[a] tribal official also may forfeit immunity where
he or she acts out of personal interest rather than for the benefit of the
tribe.” (Turner, supra, 82 Cal.App.4th at p. 1055.) If an immunity may be
forfeited based upon the holder’s motive or purpose, the immunity is not
absolute.
Defendants similarly argue their motivations in revoking
Cosentino’s license are irrelevant. According to Defendants, the Great
Western Casinos court applied sovereign immunity to dismiss intentional
tort claims against tribal officials even though “‘[t]he tribal council
members’ alleged motivations for these actions were plainly illegal and not
expressly authorized under applicable law.’” ~(Rehearing Petition pp. 21
& 22)~ The Great Western Casinos decision, however, does not include
this quote Defendants attribute to it and we have been unable to find that
quote in any other reported case. Moreover, this rule also would conflict
5
with Turner’s statement that a tribal official may forfeit immunity by acting
out of personal interests.
10. On page 19, the first sentence of the second full paragraph, starting
with “Although Defendants cite several cases to support their contention,” delete the
phrase “Defendants fail” between the works “immunity” and “to discuss,” and replace
them with the words “Defendants’ brief fails” so the sentence reads as follows:
Although Defendants cite several cases to support their contention the trial
court properly dismissed Cosentino’s claims based on sovereign immunity,
Defendants’ brief fails to discuss or even cite Turner, the only analogous
factual situation involving a claim of sovereign immunity by tribal officials
who allegedly exceeded the scope of their authority by engaging in
intentional misconduct designed to harm the plaintiff.
11. On page 19, the second sentence of the second full paragraph,
starting with “The cases Defendants cite are readily distinguishable,” delete the sentence
and replace it with the following sentence:
The cases Defendants cite predate Turner and are readily distinguishable
because they do not address claims involving allegations that tribal officials
engaged in intentional misconduct for their own benefit.
These modifications do not change the judgment.
The petition for rehearing filed by defendants and respondents is DENIED.
Defendants contend Government Code section 68081 requires us to grant rehearing to
address Public Law 280’s application to this case. Government Code section 68081,
however, only requires rehearing when an appellate court “renders a decision in a
proceeding . . . based upon an issue which was not proposed or briefed by any party to
the proceeding.” “The parties do not ‘have a right under section 68081 to submit
supplemental briefs or be granted a rehearing each time an appellate court relies upon
authority or employs a mode of analysis that was not briefed by the parties.’” (Mark v.
6
Spencer (2008) 166 Cal. App. 4th 219, 228, fn. 4.) Public Law 280’s application to this
case is not an issue on which we based the opinion. We cited that law merely as
preliminary background. The issue we decided was whether sovereign immunity applied
to protect Defendants from plaintiffs’ claims, and we decided that issue based on Turner
v. Martire (2000) 82 Cal. App. 4th 1042, and the other cited cases addressing sovereign
immunity for tribal officials. Defendants were given and full and fair opportunity to brief
and argue that issue and those authorities. The remainder of the rehearing petition is an
attempt to reargue the merits of the case that likewise does not warrant rehearing.
Defendants’ request to depublish the opinion also is DENIED. A
depublication request is properly directed to the Supreme Court. (Cal. Rules of Court,
rule 8.1125.) A request that we depublish our own opinion is essentially a request that
we reconsider our decision to publish the opinion. We decline to do so.
ARONSON, ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
7
Filed 5/28/15 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BENEDICT COSENTINO,
Plaintiff and Appellant, G050923
v. (Super. Ct. No. MCC1300396)
STELLA FULLER et al., OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Riverside County, Richard J.
Oberholzer, Judge. (Retired judge of the Kern Superior Court assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Law Office of Andrew W. Twietmeyer and Andrew W. Twietmeyer for
Plaintiff and Appellant.
Law Office of Frank Lawrence and Frank Lawrence for Defendants and
Respondents.
* * *
Plaintiff and appellant Benedict Cosentino appeals from an order
dismissing his claims against defendants and respondents Stella Fuller, John R. Magee,
Jason P. Maldonado, William R. Ramos, and Robert B. Vargas (collectively, Defendants)
based on the sovereign immunity afforded to Indian tribes and their officials. Cosentino
was a table games dealer at an Indian tribal casino and Defendants were the five members
of the tribe’s gaming commission responsible for licensing individuals involved in the
tribe’s gaming activities and overseeing those activities.
Shortly after he began working at the casino, Cosentino observed ongoing
criminal activity on the casino floor. Based on his observations, Cosentino became a
confidential informant for the California Department of Justice and the information he
provided led to several criminal convictions. Defendants later sought to learn what
information Cosentino provided the Department of Justice, but he followed the
Department’s instructions not to divulge the information. When Cosentino declined to
disclose the information, Defendants revoked his gaming license and the casino
terminated his employment because he could not work at the casino without a valid
license.
Cosentino brought this action against Defendants, claiming they revoked
his gaming license without cause and in retaliation for acting as an informant.
Defendants specially appeared to make a motion to quash and dismiss, arguing sovereign
immunity deprived the court of subject matter jurisdiction because Cosentino based all of
his claims on Defendants’ official actions as members of the tribe’s gaming commission.
The trial court agreed and granted the motion.
We reverse. For sovereign immunity to apply, the claims against tribal
officials must be based on actions the officials took in their official capacity and within
the scope of their official authority. An official’s actions that exceed the scope of his or
her authority are not protected. Although the parties do not dispute that as members of
the tribe’s gaming commission Defendants had the authority to revoke a gaming license
2
if they received reliable information the licensee no longer satisfied the requirements for
obtaining a license or had engaged in conduct that reflected poorly upon the tribe or its
gaming activities, the record lacks evidence showing Defendants received any such
information about Cosentino or an explanation of why they revoked his gaming license.
Cosentino, however, presented evidence supporting his claim Defendants exceeded the
scope of their authority by revoking his license without cause and in retaliation against
him. Sovereign immunity prevents us from inquiring into the reliability of information
Defendants may have relied upon in revoking Cosentino’s license or any other errors they
may have made, but it does not prevent inquiry into whether Defendants exceeded their
authority by using their official position to intentionally harm Cosentino.
I
FACTS AND PROCEDURAL HISTORY
The Pechanga Band of Luiseño Mission Indians (Pechanga Band) is a
sovereign Indian tribe recognized by the United States of America. It owns and operates
the Pechanga Resort and Casino (Pechanga Casino) as an Indian gaming casino. The
Pechanga Gaming Commission (Gaming Commission) is a five-member elected body of
the Pechanga Band responsible for overseeing and monitoring all gaming activities on
tribal land, including the licensing of certain employees directly involved in gaming
activities. Defendants were the five Gaming Commission members during the relevant
time period.
In April 2007, the Gaming Commission issued Cosentino a Class A gaming
license to work as a table games dealer at the Pechanga Casino. Within his first few
months, Cosentino witnessed several instances of criminal misconduct on the casino
floor. He reported his observations to his licensing agent, who referred him to McKinney
Investigations, LLC, a firm the Pechanga Band had hired to investigate criminal
corruption at the Pechanga Casino. The private investigators asked Cosentino if he
3
would work with the California Department of Justice as a confidential informant.
Cosentino agreed to do so and the information he shared with the Department of Justice
led to several criminal convictions.
In March 2011, the Gaming Commission e-mailed the Pechanga Casino
director of table games to request a private meeting with Cosentino at 11:00 a.m. on
April 1, 2011. The Gaming Commission did not contact Cosentino directly to request a
meeting and the director of table games did not forward the request to Cosentino. His
April 1 shift originally was scheduled to start at 12:00 noon, but the day before
Cosentino’s supervisor switched his start time to 10:00 a.m. without informing Cosentino
of his 11:00 a.m. meeting with the Gaming Commission. Cosentino timely reported to
work for his April 1 shift. At approximately 11:30 a.m., Cosentino was told to report to
the office, where a secretary told Cosentino he missed his scheduled meeting with the
Gaming Commission at 11:00 a.m. A shift supervisor then told Cosentino the Pechanga
Casino was suspending him pending an investigation and he was escorted from the
building.
In mid-April, 2011, the Gaming Commission sent Cosentino a letter stating
it had suspended his license with the intent to revoke it, and he had a right to a hearing on
the suspension and possible revocation. Cosentino did not receive this letter because the
Gaming Commission mailed it to Cosentino’s former address, although Cosentino had
provided and received mail at his current address from the Pechanga Casino.
In early May, 2011, Cosentino phoned Ramos to ask if he had been fired
from his job at the Pechanga Casino. Ramos told Cosentino he had not been fired, and
the Gaming Commission merely wanted to meet with him. During this conversation,
Ramos did not tell Cosentino he and the other members of the Gaming Commission had
suspended Cosentino’s license. Ramos put Cosentino in contact with the Gaming
Commission secretary to arrange a meeting. The secretary scheduled a meeting and
informed Cosentino she had a letter for him from the Gaming Commission. When
4
Cosentino arrived at the Gaming Commission’s office to pick up the letter, the secretary
gave him a copy of the April letter sent to his old address, and Cosentino learned for the
first time that his license had been suspended.
Cosentino met with the five Defendants at the Gaming Commission’s
offices in mid-May 2011. When he arrived for the meeting, the Gaming Commission’s
secretary gave him a letter dated May 4, 2011. The letter stated he had requested the
meeting as a hearing on his license suspension, although Ramos arranged the meeting and
told Cosentino Defendants just wanted to talk to him. Cosentino was anxious about the
meeting because Fuller recently joined the Gaming Commission, and the California
Department of Justice had informed him members of Fuller’s family may have been
involved in some on the cases on which Cosentino had provided information.
Cosentino nonetheless met with the five Defendants privately and asked
them if he had been fired from his job at the Pechanga Casino. Defendants responded he
had not, and that ended their discussion about Cosentino’s license and his job. Instead,
Defendants proceeded to pressure him for over an hour to disclose the information he
gave to McKinney Investigations and the Department of Justice. Fuller appeared agitated
throughout the meeting and at one point yelled at Cosentino. As Fuller left the room
when the meeting ended, she told Cosentino the Gaming Commission would notify him
of its decision. Cosentino asked Fuller which decision she was talking about, and she
responded the decision on whether to revoke his gaming license.
A few days later, Ramos phoned to pressure Cosentino to resign his
position at the Pechanga Casino, and warned the Gaming Commission would revoke
Cosentino’s gaming license if he did not resign. Ramos also explained that Cosentino
would not be able to get a job at any other casino if his license was revoked. When
Cosentino asked why the Gaming Commission was going to suspend his license, Ramos
responded the reasons were “‘personal’” and he could not share them with Cosentino.
Cosentino refused to resign and a few days later he received a notice from the Pechanga
5
Casino explaining his employment had been involuntarily terminated. A week later,
Cosentino received a letter from the Gaming Commission revoking his license.
In December 2011, the Pechanga Band Tribal Council arranged a meeting
with Cosentino to discuss his experience at the Pechanga Casino and with the Gaming
Commission. Cosentino met privately with the council and shared the foregoing events.
The council apologized to Cosentino and thanked him for helping the Department of
Justice.
In March 2012, the Pechanga Band Tribal Council called a meeting of the
tribe’s general membership to hear McKinney Investigations discuss its investigation into
criminal activity at the Pechanga Casino. Without disclosing Cosentino’s identity,
McKinney Investigations described his role as a confidential informant in the
investigation and his mistreatment by the Gaming Commission. When the presentation
was over, Fuller addressed the general membership and identified Cosentino as the
confidential informant. A few days later, Fuller resigned from the Gaming Commission
under pressure from the Pechanga Band Tribal Council.
After Fuller’s resignation, the Pechanga Band’s general counsel arranged a
meeting with Cosentino. Counsel provided Cosentino with a letter from the Gaming
Commission explaining it had reconsidered its decision and Cosentino’s “Gaming
License status with the Pechanga Gaming Commission is no longer considered to be
revoked.” Despite this letter, Cosentino has been unable to obtain employment at any
Indian casino because he must disclose that his license previously had been revoked.
In March 2013, Cosentino filed this action against Defendants, alleging
claims for (1) intentional interference with prospective economic advantage; (2) negligent
interference with prospective economic advantage; (3) intentional interference with the
right to pursue a lawful occupation; (4) violation of Civil Code section 52.1;
(5) intentional infliction of emotional distress; and (6) negligent infliction of emotional
distress. Cosentino alleges Defendants unlawfully retaliated against him for serving as a
6
confidential informant by suspending and then revoking his gaming license without
explanation or cause. Defendants specially appeared and moved to quash service of
summons and dismiss the complaint based on sovereign immunity. In opposition,
Cosentino presented evidence supporting the allegations in his complaint. Defendants
submitted no evidence rebutting Cosentino’s claims. Instead, Defendants argued they
were immune from suit and liability because Cosentino sued them based on actions they
took in their official capacity as members of the Gaming Commission. The trial court
granted the motion, finding Cosentino sued Defendants for improperly revoking his
gaming license without identifying any reason. Cosentino timely appealed.1
II
DISCUSSION
A. Legal Background
1. Indian Gaming
“Indian tribes have the exclusive right to regulate gaming activity on Indian
lands if the gaming activity is not specifically prohibited by Federal law and is conducted
within a State which does not, as a matter of criminal law and public policy, prohibit such
gaming activity.” (25 U.S.C. § 2701(5).) Congress enacted the Indian Gaming
Regulatory Act (25 U.S.C. § 2701 et seq.; IGRA) “to provide a statutory basis for the
regulation of gaming by an Indian tribe adequate to shield it from organized crime and
other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of
1 Cosentino did not name the Gaming Commission or the Pechanga Band as
defendants in this action because the Tribal-State Compact requires arbitration of any
claims against the Pechanga Band. The Gaming Commission and the Pechanga Band
refused to arbitrate Cosentino’s claims and he filed a petition in federal court to compel
arbitration. The U.S. District Court denied his petition, and Cosentino’s appeal from that
decision is pending in the Ninth Circuit Court of Appeals.
7
the gaming operation, and to assure that gaming is conducted fairly and honestly by both
the operator and players.” (25 U.S.C. §2702(2).)
The IGRA authorizes three categories or classes of Indian gaming on tribal
lands: class I, which includes social, traditional, and ceremonial games; class II, which
includes bingo and certain limited types of card games; and class III, which includes all
other forms of gaming. (25 U.S.C. § 2703(6)-(8).) A tribe may conduct class III gaming
activities if it (1) adopts a gaming ordinance that regulates all gaming activities on tribal
lands consistent with the standards established by the IGRA and the Chairman of the
National Indian Gaming Commission approves the ordinance; and (2) enters into a
tribal-state compact agreeing to conduct all gaming activities according to the terms and
conditions negotiated between the tribe and the state where the tribe’s lands are located.
(25 U.S.C. § 2710(d)(1).) To satisfy these requirements, the Pechanga Band adopted the
“Pechanga Gaming Act of 1992” (Pechanga Ordinance) and entered into the
“Tribal-State Compact Between the State of California and the Pechanga Band of
Luiseño Mission Indians” (Tribal-State Compact).2 The Pechanga Band also formed the
Gaming Commission to carry out its regulatory responsibilities under the IGRA.
(See Tribal-State Compact at §§ 2.20, 6.4.1; Pechanga Ordinance at § 4.)
The IGRA requires a tribe’s gaming ordinance to establish a licensing
system for all “primary management officials and key employees of the gaming
enterprise.” The system must (1) require a background investigation before any
individual may be licensed as a management official or key employee; (2) ensure that all
licensed individuals are monitored on an ongoing basis; and (3) establish “a standard
whereby any person whose prior activities, criminal record, if any, or reputation, habits
and associations pose a threat to the public interest or to the effective regulation of
2 We grant Cosentino’s request to judicially notice the Tribal-State Compact
and an amendment thereto. (Evid. Code, § 452, subds. (a), (c), (d); see Big Valley Band
of Pomo Indians v. Superior Court (2005) 133 Cal. App. 4th 1185, 1192.)
8
gaming, or create or enhance the dangers of unsuitable, unfair, or illegal practices and
methods and activities in the conduct of gaming shall not be eligible for employment.”
(25 U.S.C. § 2710(b)(2)(F) & (d)(1)(A)(ii).) Consistent with these requirements, the
Tribal-State Compact and the Pechanga Ordinance require all key employees, including
table game dealers like Cosentino, to obtain a gaming license from the Gaming
Commission after the employees undergo a background check. (Tribal-State Compact at
§§ 6.4.1, 6.4.4, 6.4.8, 6.5; Pechanga Ordinance at § 10.)
A person is eligible for a gaming license if employing the person does not
“pose[] a threat to the public interest or to the effective regulation of gaming, [and does
not] create[] or enhance[] dangers of unsuitable, unfair, or illegal practices and methods
and activities in the conduct of gaming.”3 (Pechanga Gaming Ordinance at § 10(m).) All
persons holding gaming licenses must “conduct themselves with honesty, integrity, and
with such decorum and manners as may be necessary to reflect positively on the
[Pechanga] Band, its members and the Gaming Activities involved.” (Id. at § 10(j).)
A tribal gaming license must be renewed at least every two years. (Tribal-State Compact
at §§ 6.4.4, 6.5.2; Pechanga Ordinance at § 10(f).)
The Gaming Commission must suspend a gaming license if it receives
reliable information the licensee no longer satisfies the standards for obtaining a license.
The Gaming Commission must provide the licensee with written notice of the suspension
3 The Tribal-State Compact provides a person is not eligible to receive a
gaming license unless the Gaming Commission determines the person is “(a) A person of
good character, honesty, and integrity. [¶] (b) A person whose prior activities, criminal
record (if any), reputation, habits, and associations do not pose a threat to the public
interest or to the effective regulation and control of gambling, or create or enhance the
dangers of unsuitable, unfair, or illegal practices, methods, or activities in the conduct of
gambling, or in the carrying on of the business and financial arrangements incidental
thereto. [¶] (c) A person who is in all other respects qualified to be licensed as provided
in this Gaming Compact, IGRA, the Tribal Gaming Ordinance, and any other criteria
adopted by the Tribal Gaming Agency or the Tribe.” (Tribal-State Compact at § 6.4.3.)
9
and the possible revocation of the license, and the licensee may request a hearing on
whether he or she continues to satisfy the standards for obtaining a gaming license. After
the hearing, the Gaming Commission must determine whether to revoke or reinstate the
license. (Tribal-State Compact at § 6.5.5; Pechanga Ordinance at § 10(p).)
2. Sovereign Immunity for Indian Tribes and Their Officials
“The federal government has ‘plenary and exclusive power’ to deal with
Indian tribes.” (Trudgeon v. Fantasy Springs Casino (1999) 71 Cal. App. 4th 632, 635
(Trudgeon).) Under Public Law 280 (18 U.S.C. § 1162, 28 U.S.C. § 1360, 25 U.S.C.
§§ 1321-1326), Congress has extended to California and five other states “jurisdiction
over civil causes of action . . . to which Indians are parties which arise in the areas of
Indian country” in those states, and further that the “civil laws of such State that are of
general application to private persons or private property shall have the same force and
effect within such Indian country as they have elsewhere within the State.” (28 U.S.C.
§ 1360(a).) Sovereign immunity, however, may limit the reach of state law, including
state tort law.
“Under federal law, an Indian tribe is a sovereign authority and, as such,
has tribal sovereign immunity, not only from liability, but also from suit. [Citations.]
Pursuant to tribal sovereign immunity principles, an Indian tribe is subject to suit only
where Congress has so authorized or where the Tribe has waived its immunity by
consenting to suit. [Citation.] Absent such authorization or consent, the courts do not
have subject matter jurisdiction over suits against a tribe. [Citation.]” (Lawrence v.
Barona Valley Ranch Resort & Casino (2007) 153 Cal. App. 4th 1364, 1368 (Lawrence);
see Warburton/Buttner v. Superior Court (2002) 103 Cal. App. 4th 1170, 1182
(Warburton).) “‘[S]overeign immunity is not a discretionary doctrine that may be
applied as a remedy depending on the equities of a given situation. [Citation.]’
[Citations.] Rather, it presents a pure jurisdictional question.” (Warburton, at p. 1182.)
10
“Although Indian tribes enjoy broad sovereign immunity from lawsuits, the
immunity of Indian tribal officials . . . is more limited.” (Boisclair v. Superior Court
(1990) 51 Cal. 3d 1140, 1157 (Boisclair).) When tribal officials “act ‘in their official
capacity and within their scope of authority,’” they are protected by sovereign immunity
because their acts are the acts of the sovereign. (Turner v. Martire (2000) 82 Cal. App. 4th
1042, 1046 (Turner); see Boisclair, at p. 1157; Larson v. Domestic & Foreign Commerce
Corp. (1949) 337 U.S. 682, 695 (Larson).) On the other hand, when “an officer of a
sovereign acts beyond his or her delegated authority, his or her actions ‘are considered
individual and not sovereign actions. The officer is not doing the business which the
sovereign has empowered him to do or he is doing it in a way which the sovereign has
forbidden,’” and therefore sovereign immunity does not apply. (Turner, at p. 1055; see
Trudgeon, supra, 71 Cal.App.4th at p. 644; Larson, at p. 689.)
An official’s commission of a tort is not per se an act in excess of authority,
and therefore is not necessarily exempt from immunity. “‘[I]f the actions of an officer do
not conflict with the terms of his valid statutory authority, then they are actions of the
sovereign, whether or not they are tortious under general law . . . .’ [Citation.]”
(Boisclair, supra, 51 Cal.3d at p. 1157; see Turner, supra, 82 Cal.App.4th at p. 1055;
Trudgeon, supra, 71 Cal.App.4th at p. 644; Larson, supra, 337 U.S. at p. 695.)
Accordingly, to determine whether a tribal official is entitled to the protection of
sovereign immunity for a tortious act, courts must determine whether the official
(1) committed the act in his or her official capacity and (2) within the scope of his or her
official authority. (Boisclair, at pp. 1157-1158; Turner, at p. 1046; Great Western
Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal. App. 4th 1407, 1421
(Great Western Casinos); Trudgeon, at pp. 643-644.) “A tribal official also may forfeit
immunity where he or she acts out of personal interest rather than for the benefit of the
tribe.” (Turner, at p. 1055.)
11
Because sovereign immunity deprives a court of subject matter jurisdiction,
California courts have authorized Indian tribes and their officials to specially appear and
invoke their immunity from suit by using a “hybrid motion to quash/dismiss.” (Boisclair,
supra, 51 Cal.3d at p. 1144, fn. 1; Great Western Casinos, supra, 74 Cal.App.4th at
p. 1417.) On such a motion, “‘the plaintiff bears the burden of proving by a
preponderance of evidence that jurisdiction exists.’ [Citation.]” (Lawrence, supra,
153 Cal.App.4th at p. 1369.) “In the absence of conflicting extrinsic evidence relevant to
the issue, the question of whether a court has subject matter jurisdiction over an action
against an Indian tribe [and its officials] is a question of law subject to our de novo
review.” (Ibid.; Warburton, supra, 103 Cal.App.4th at p. 1180.)
B. The Trial Court Erroneously Concluded Defendants Are Immune From Liability
for Cosentino’s Claims
Cosentino contends the trial court erred in applying sovereign immunity to
dismiss his claims because he presented unrebutted evidence Defendants exceeded the
scope of their authority as members of the Gaming Commission by revoking his gaming
license without cause and in retaliation for serving as a confidential Department of
Justice informant. We agree.
In Turner, the Court of Appeal elaborated on the showing required for
dismissing a tort action against tribal officials on sovereign immunity grounds. The
plaintiffs were labor union organizers who came to an Indian tribe’s gaming casino to
speak with employees, and the defendants were tribal law enforcement officers who
confronted the plaintiffs and demanded to see their camera. When the plaintiffs refused,
the defendants forced the plaintiffs to the ground, seized the camera, struck and kicked
the plaintiffs, and used pepper spray on them. The defendants then exposed the camera’s
film, forced the plaintiffs into a trailer office, arrested the plaintiffs, and called the county
sheriff to detain the plaintiffs without probable cause. The plaintiffs sued the defendants
individually for assault, battery, false imprisonment, conversion, and civil rights
12
violations, alleging the defendants assaulted and detained the plaintiffs because the
defendants opposed the plaintiffs’ efforts to inform the casino employees about their
collective bargaining rights. The trial court found that tribal sovereign immunity
deprived the court of personal and subject matter jurisdiction. The Court of Appeal
reversed, concluding the record failed to establish the defendants qualified as tribal
officials or acted within the scope of their official authority. (Turner, supra,
82 Cal.App.4th at pp. 1044-1045.)
The Turner court explained that extending sovereign immunity
automatically to all individuals associated with an Indian tribe would contravene the
purpose for sovereign immunity, and would contravene the basic tenet that individuals
should be held accountable for their wrongful conduct. The purpose of extending
sovereign immunity to individual officials is to encourage them to exercise their
independent judgment for the tribe’s benefit without fear of personal liability, and
therefore immunity applies only to those officials who perform discretionary or
policymaking functions that require the exercise of independent judgment for the tribe’s
benefit. (Turner, supra, 82 Cal.App.4th at pp. 1048-1049.) Nothing in the record
showed the defendants exercised the sort of discretionary or policymaking authority that
would justify applying sovereign immunity. (Id. at p. 1054.)
The Turner court further explained it could not conclude the defendants
acted within the scope of their official authority as tribal law enforcement officers
because the record lacked evidence showing the defendants were authorized to use force
or detain visitors to the tribe’s casino, the circumstances under which the defendants
could use force to detain visitors, and that the plaintiffs’ conduct justified the defendants
in using force to detain them. Without evidence on each of these points, the defendants’
bare assertion of sovereign immunity was overcome by the plaintiffs’ allegations the
defendants exceeded the scope of their authority by engaging in intentional brutality
motivated by their personal opposition to the plaintiffs’ efforts to inform casino
13
employees about their collective bargaining rights. As the Turner court observed, a tribal
official who acts out of personal interest rather than for the tribe’s benefit forfeits the
protections of sovereign immunity. (Turner, supra, 82 Cal.App.4th at p. 1055
[allegations in plaintiff’s complaint “raises a factual issue whether defendants acted for
the benefit of the Tribe or merely for personal reasons”].)
In Boisclair, the Supreme Court emphasized that sovereign immunity only
applies to tribal officials when they act in their official capacity and within the scope of
their official authority. (Boisclair, supra, 51 Cal.3d at p. 1157.) There, the plaintiff sued
tribal officials for blocking the only road providing access to a granite mine the plaintiff
operated on property adjacent to the tribe’s reservation. The trial court denied the tribal
officials’ motion to dismiss the action based on sovereign immunity. (Id. at
pp. 1145-1146.) The Boisclair court denied the officials’ petition for writ of mandate
because the record lacked evidence showing whether the officials’ alleged actions in
blocking the road fell within the scope of their authority. The Supreme Court explained
any tribal official action to block the plaintiff’s access that occurred where the road
crossed tribal property would come within the scope of the officials’ authority because
the tribal officials had the power to control the boundaries to tribal property and to
exclude those seeking access. But any tribal official action to block the plaintiff’s access
to the road outside of tribal property would exceed the officials’ authority and therefore
sovereign immunity would not protect the tribal officials because they lacked the
authority to deny access to nontribal property. (Id. at pp. 1157-1158.) The Boisclair
court remanded the matter for the trial court to determine the precise nature of the
officials’ actions. (Id. at pp. 1158-1159.)
Here, there is no dispute Defendants’ positions as Gaming Commission
members made them tribal officials for sovereign immunity purposes, and that they had
the authority to suspend and revoke Cosentino’s gaming license if they received reliable
information he no longer satisfied the standards for obtaining a license or had conducted
14
himself in a manner that did not reflect positively on the Pechanga Band or its gaming
activities. Nothing in the record, however, shows Cosentino no longer qualified for a
gaming license or that he had engaged in any inappropriate conduct warranting
suspension or revocation of his license. Moreover, Cosentino alleged and presented
evidence showing Defendants exceeded their authority by revoking his license without
cause and in retaliation for acting as a Department of Justice informant.
Specifically, Cosentino presented evidence that he served as a confidential
informant and provided information that led to several criminal convictions for illegal
activities at the Pechanga Casino. Defendants suspended his gaming license without
notifying him after he failed to appear for a meeting with Defendants because his
supervisor did not inform him of the meeting and did not provide another dealer to cover
Cosentino’s gaming table until well after the scheduled meeting. When Cosentino later
met with Defendants to discuss his activities as an informant, they served him with a
letter belatedly informing him the meeting was convened to determine whether they
should revoke his license. Defendants nonetheless did not ask Cosentino about his
license, but instead questioned him extensively about the information he gave to the
Department of Justice. When Cosentino declined to answer some of their questions
based on the Department’s instructions not to divulge the information, Defendants
revoked Cosentino’s gaming license without identifying any reason for doing so. The
revocation forced the Pechanga Casino to terminate his employment. Cosentino later
asked Ramos why Defendants revoked his license and Ramos responded he could not say
because the reasons were personal. After the Pechanga Band’s Tribal Council forced
Fuller to resign as a Gaming Commission member, the Commission informed Cosentino
it no longer considered his license revoked, but it failed to restore his job.
In the face of this evidence, Defendants presented no evidence to rebut or
deny Cosentino’s claim they revoked his license in retaliation and without cause.
Similarly, Defendants presented no evidence showing they received any information
15
about Cosentino’s qualification to hold a gaming license or why they suspended and
revoked his license. Defendants also failed to present any authority showing they had the
power to revoke Cosentino’s license without cause. Accordingly, as in Turner,
Cosentino’s allegations and evidence that Defendants exceeded their authority by
revoking his license without cause defeat Defendants’ claim of sovereign immunity.
(Turner, supra, 82 Cal.App.4th at pp. 1054-1055.)
Defendants contend sovereign immunity applied because all of Cosentino’s
claims are based on the revocation of his license and Defendants indisputably had the
authority as Gaming Commission members to revoke Cosentino’s license. Defendants
misconstrue the scope of sovereign immunity for tribal officials and the scope of their
authority as Gaming Commission members.
Sovereign immunity is not absolute and does not apply every time a tribal
official acts in his official capacity. For sovereign immunity to apply, the tribal official
must not only act in his or her official capacity, the official also must act within the scope
of his or her official authority. (Boisclair, supra, 51 Cal.3d at p. 1157; Turner, supra,
82 Cal.App.4th at p. 1046.) For example, in Turner, the inquiry was not simply whether
the tribal law enforcement officers had the authority to use force and detain individuals;
rather, the court also had to determine under what circumstances the officers could
exercise any use of force or detention authority, and whether those circumstances existed.
(Turner, at pp. 1054-1055.) Similarly, in Boisclair, the inquiry was not simply whether
the tribal officials had the authority to deny access to tribal property by blocking an
access road, but whether the tribal officials blocked the road on tribal property, where
they had authority to do so, or on nontribal property, which would exceed their authority.
(Boisclair, at pp. 1157-1158.) Accordingly, our inquiry here is not limited to whether
Defendants had the authority to revoke Cosentino’s gaming license, but also includes the
circumstances under which Defendants may exercise their authority and whether those
circumstances existed.
16
The IGRA, the Tribal-State Compact, and the Pechanga Ordinance granted
Defendants broad authority to suspend and revoke Cosentino’s gaming license, but that
authority was not unlimited. As explained above, Defendants could suspend or revoke
Cosentino’s gaming license only if they received reliable information that (1) his
licensure posed a threat to the public interest or the effective regulation of gaming; (2) his
licensure created or enhanced dangers of unsuitable, unfair, or illegal practices, methods
and activities in the conduct of gaming; or (3) he failed conducted himself with honesty,
integrity, and with such decorum and manners as necessary to reflect positively on the
Pechanga Band, its members, and its gaming activities. (25 U.S.C. § 2710(b)(2)(F) &
(d)(1)(A)(ii); Tribal-State Compact at § 6.4.3; Pechanga Gaming Ordinance at § 10(j) &
(m).) Nothing in the record shows Defendants had the authority to revoke Cosentino’s
license without cause or in retaliation for his cooperation with law enforcement.
Accordingly, sovereign immunity does not protect Defendants from this action unless
they revoked his license on a ground identified in the IGRA, the Tribal-State Compact, or
the Pechanga Ordinance.
Defendants also contend the IGRA, the Tribal-State Compact, and the
Pechanga Ordinance did not require them either to explain why they revoked Cosentino’s
license or to produce evidence to support their decision. Defendants miss the point. It is
irrelevant whether the IGRA, the Tribal-State Compact, and the Pechanga Ordinance
required Defendants to provide an explanation or produce evidence to justify their
decision. We are not deciding whether Defendants followed the proper procedure or had
sufficient evidence to support their decision to suspend and revoke Cosentino’s license.
Rather, we must decide whether sovereign immunity applies to bar this action in its
entirety. To make that decision, we must determine whether Defendants acted in their
official capacity and within the scope of their authority. Cosentino presented evidence to
show Defendants exceeded their authority under the IGRA, the Tribal-State Compact,
and the Pechanga Ordinance because they revoked his license without cause in retaliation
17
for him cooperating with law enforcement. The burden therefore shifted to Defendants to
rebut Cosentino’s evidence. Accordingly, to invoke sovereign immunity’s protections
Defendants were required to produce evidence or law showing they acted within the
scope of their authority in revoking Cosentino’s license regardless whether IGRA, the
Tribal-State Compact, and the Pechanga Ordinance required them to provide an
explanation or cite evidence when making their decision.
Defendants next contend they had no obligation to produce evidence or
provide an explanation because sovereign immunity not only protects them from liability,
but also from the burdens of litigation, such as discovery and the obligation to produce
evidence. Again, Defendants miss the point. Sovereign immunity protects tribal officials
from both liability and suit. To show sovereign immunity applies, however, tribal
officials may be required to participate in limited discovery and present evidence to
convince the court sovereign immunity deprives it of jurisdiction to hear the case.
(Warburton, supra, 103 Cal.App.4th at p. 1181 [limited discovery may be required to
determine whether sovereign immunity applies]; Great Western Casinos, supra,
74 Cal.App.4th at p. 1418 [“‘Where the motion to dismiss is based on a claim of . . .
sovereign immunity, which provides protection from suit and not merely a defense to
liability . . . the court must engage in sufficient pretrial factual and legal determinations to
“‘satisfy itself of its authority to hear the case’ before trial”’”].)
We emphasize the appropriate inquiry is not whether Defendants properly
exercised their authority, but only whether they acted within the scope of their authority.
As explained above, the purpose of extending sovereign immunity to tribal officials is to
encourage the officials to exercise their independent judgment for the tribe’s benefit
without concern they may be held personally liable for how they exercised their judgment
or any mistakes they may have made. (Turner, supra, 82 Cal.App.4th at pp. 1048-1049;
see Larson, supra, 337 U.S. at p. 695.) For example, sovereign immunity would apply to
protect Defendants from liability if they revoked Cosentino’s license based on
18
information he had helped a player cheat on a game, even if that information later turned
out to be false or Defendants failed to conduct an adequate investigation. Similarly,
sovereign immunity would apply if Defendants revoked Cosentino’s license based on an
erroneous interpretation of the IGRA, the Tribal-State Compact, or the Pechanga Gaming
Ordinance. Those mistakes are protected by sovereign immunity because they are errors
in the judgment with which Defendants were entrusted. If mistakes in how Defendants
performed their official duties exposed them to personal liability, then few people would
be willing to serve on the Gaming Commission.
Cosentino’s claims, however, are not based on Defendants’ reliance on
questionable information, their failure to perform an adequate investigation, or their
erroneous interpretation of a legal standard. Rather, Cosentino alleges Defendants
engaged in intentional misconduct and revoked his license without cause to retaliate
against him. Defendants presented no authority, and we have found none, that extends
tribal sovereign immunity to an intentional abuse of authority. To the contrary, the law
withholds sovereign immunity for a tribal official who acts out of personal interest rather
than to benefit the tribe. (Turner, supra, 82 Cal.App.4th at p. 1055.)
Although Defendants cite several cases to support their contention the trial
court properly dismissed Cosentino’s claims based on sovereign immunity, Defendants
fail to discuss or even cite Turner, the only analogous factual situation involving a claim
of sovereign immunity by tribal officials who allegedly exceeded the scope of their
authority by engaging in intentional misconduct designed to harm the plaintiff. The cases
Defendants cite are readily distinguishable because they do not address that factual
scenario. (See Trudgeon, supra, 71 Cal.App.4th at pp. 643-644 [sovereign immunity
barred negligence claim against tribal officials who allegedly failed to provide adequate
security at gaming casino because plaintiff did not allege officials’ decision regarding
security exceeded scope of their authority]; Great Western Casinos, supra,
74 Cal.App.4th at pp. 1423, 1424 [outside counsel immune from liability to third party
19
for advice given to Indian tribe because tribe must be able to hire agents to assist in its
operations and expect loyalty and candor in advice agents provide]; Gaming Corp. of
America v. Dorsey & Whitney (8th Cir. 1996) 88 F.3d 536, 550 [same]; Hardin v. White
Mountain Apache Tribe (9th Cir. 1985) 779 F.2d 476, 479-480 [sovereign immunity
applied because tribal officials acted within scope of their authority when removing
plaintiff from tribal lands].)
Finally, Defendants contend we should affirm the trial court’s dismissal of
Cosentino’s claims even if we conclude sovereign immunity does not apply because
(1) Cosentino assumed all risk and waived all claims relating to his gaming license;
(2) Fuller’s statements disclosing Cosentino’s identity as the confidential informant are
absolutely privileged because Fuller made her statements to a legislative body during a
Pechanga Band general membership meeting; (3) the Pechanga Band and Gaming
Commission are indispensible parties that cannot be joined based on their sovereign
immunity; and (4) the IGRA, the Tribal-State Compact, and the Pechanga Gaming
Ordinance do not provide Cosentino a private right of action to challenge the propriety of
Defendants’ decision to revoke his license. We decline to address these arguments for
two reasons.
First, Defendants failed to make these arguments in the trial court, and
therefore cannot assert them for the first time on appeal. (In re Marriage of Harris
(2007) 158 Cal. App. 4th 430, 440 [new theories of defense may not be raised for first time
on appeal].) Second, Defendants have not cited any authority that allows them to
specially appear and raise these arguments through their hybrid motion to quash/dismiss
the action. As explained above, case authority expressly authorizes Indian tribes and
their officials to make a special appearance to assert sovereign immunity through a
hybrid motion to quash/dismiss because sovereign immunity deprives the trial court of
subject matter jurisdiction. (Boisclair, supra, 51 Cal.3d at p. 1144, fn. 1; Great Western
Casinos, supra, 74 Cal.App.4th at p. 1417.) These arguments are affirmative defenses
20
that only may be raised through an answer or demurrer after a defendant makes a general
appearance.
III
DISPOSITION
The order is reversed. Cosentino shall recover his costs on appeal.
ARONSON, ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
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