IN THE _ ,_. 6 L'3K

SUPREME COURT OF CALIFORNIA

PETITIONER AND APPELLANT

VS.

GENE STROUD _L _

FtededC_' K. ONdC_

TONY ARMENTADEFENDANT AND RESPONDENT_ ep_

AFTER A DECISION BY THE COURT OF APPEAL

SECOND APPELLATE DISTRICT DIVISION SIX

CASE NO. B206934

ON APPEAL FROM THE SUPERIOR COURT OF THE

COUNTY OF SANTA BARBARA

THE HONORABLE RODNEY MELVILLE JUDGE (RET.)CASE NO. SBSC 1249954

PETITION FOR REVIEW

James E. Marino

S.B. No. 57706

1026 Camino del Rio

Santa Barbara, CA 93110Tel.Wax No. 805-96%5141

Attorney for Petitioner and Appellant

TABLE OFCONTENTS

Pa e

Table of Authorities .................................................................... iii

Issues Presented ........................................................................ 1

Introduction ............................................................................. 2

Why Review Should be Granted ..................................................... 3

Factual and Procedural History

A. Facts of the Case .................................................... 4

B. Procedural History .................................................. 5

C. The Court of Appeals Decision ................................... 5

Discussion

A. The Court of Appeals improperly affirmed the trial court'sdecision to dismiss Petitioner's lawsuit out of hand on the basis

that the vague affidavit filed by Respondent was enough to

establish a lack of jurisdiction based on Indian tribal immunity ..

B, It was error for the Court of Appeals to conclude that Petitioner

had the burden of proof to establish the court had jurisdiction

over an individual defendant simply because the Respondent

claimed to be working for an Indian tribe when he engaged intortuous acts and ultra vires conduct ................................. 15

C. It was error for the Court of Appeals to have extended the common

law doctrine, commonly called sovereign immunity of Indian tribes,

to Respondent's conduct and to disregard another common law

doctrine of liability for ultra vires acts and other federal law which

are entitled to equal dignity under the law and should have been

applied to this case ......................................................... 19

Conclusion..............................................................................

Word Certification......................................................................

Courtof AppealsDecision.............................................................

Proofof Service..........................................................................

TheCourtof AppealsErroneouslyRuled

A. That the vague declaration filed by Respondent was adequate toshift the burden to Petitioner to establish that the trial court did

have jurisdiction to hear his lawsuit and to establish that burden

without the aid of any preliminary discovery and power of state

court to compel that discovery .......................................

B. Further that the trial court had no duty or authority to conduct

a basic or preliminary factual inquiry concerning the claim of

immunity and the claim the court had no jurisdiction to hearPetitioner's case ......................................................

C. The Appellate court erroneously concluded or ignored the

principal that the common law doctrine of liability for ultra vires

acts of the agent of any sovereign is entitled to equal dignity in a

case in which the individual tortfeasor claims they are immune

from lawsuit by the doctrine of Indian tribal immunity fxomunconsented lawsuits .................................................

attached

attached

attached

attached

a_ached

TABLE OFAUTHORITIES

Supreme Court Cases

Bryan v. Itasca County, Minn. [1976]

426 U.S. 373 ..............................................................................

Buckley v. Fitzimmons [1993]509 U.s. 259 ..............................................................................

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. [1998]523 U.S. 751 ..............................................................................

Larson v. Domestic & Foreign Corp. [1949]

337 U.S. 682, 691 .: ......................................................................

Santa Clara Pueblo v. Martinez [1978]436 U.S. 49 ................................................................................

Turner v, United States [1919]248 U.S. 354 ...............................................................................

Other Federal Cases

Bau_us v. Brunson [E.D. Cal. 1995]

890 F.Supp. 908 ...........................................................................

Davids v. Coyhis [U,S.D.C. Wis. 1994]

869 F.Supp. 1409 .........................................................................

Davis v. Lit-tell [1968]398 F.2d 83 .................................................................................

LeBlanc v. Shirley [U.S.D.C.E.Tex. 1984]

598 F.Supp. 747 ...........................................................................

Marx v. Gumbinner [1988]855 F.2d 783 ..............................................................................

20

15

12

19

20

12

15

16

15

16

15

California Supreme Court Cases

Boisclair v. Superior Court [1999]

51 Cal.App.3d 1140 ........................................................................ 20

iii

Other California Cases

Falls v. Superior Court [1996]

42 Cal.App.4 th 1031 ........................................................................ 15

Great Western Casinos, Inc. v. Morongo Band of Mission Indians [1999]

74 Cal.App.4 th 1407 ........................................................................ 11,14,17

Lawrence v. Barona Valley Ranch Resort & Casino [2007]153 Cal.App. 4 th 1364 ..................................................................... 10

Lewis Ave. Parent Teachers Assoc. v. Hussey [1967]

250 Cal.App.2d 232 ........................................................................ 16

Redding Rancheria v. Superior Court (Hansard) [2001]88 Cal.App.4 th 384 ........................................................................ 13

Trudgeon v. Fantasy Springs Casino [1990]4 632 ....................................................................... 1471 Cal.App. th

Tumer v. Martire [2000]

82 Cal.App. 4 th 1042 ..................................................................... 14

Warburton/Buttner v. Superior Court [2002]

103 Cal.App. 4 th 1170 .................................................................... 10,11,17

Statutes

Federal Statutes

25 U.S.C. 2701 .................................................................. 21

28 U.S.C. 1604 .................................................................. 12

42 U.S.C. 1983 .................................................................. 5,9,21

California Constitution

Art. 4, Sec. 19 ..................................................................... 21

iv

ISSUES PRESENTED

WAS IT PROPER for the trial court to have dismissed Plaintiff's verified

complaint against an individual defendant, not an Indian tribal defendant, for lack of

jurisdiction, when the complaint alleged several intentional torts and a violation of civil

rights committed by Respondent. In dismissing Petitioner's suit the court relied upon a

vague declaration that Respondent had filed which did not deny Petitioner's verified

allegations but only asserted that the defendant was working for an Indian tribe at some

point in time and therefore was entitled to "sovereign immunity" for the disparaging and

defamatory statements he gratuitously made about Petitioner to California State gaming

agents?

WAS IT ERROR OR AN ABUSE OF JUDICIAL DISCRETION to require a

plaintiff to affirmatively prove the basis for the court's jurisdiction and without an

adequate evidentiary hearing and before any factual inquiry or discovery can be

undertaken by Plaintiff?.

WAS IT ERROR AND A DENIAL OF PLAINTIFF'S CONSTITUTIONAL

RIGHTS to have due process of law when the court dismissed his lawsuit out of hand

based on vague assertions that the conduct complained of was protected by the doctrine

of legal immunity for Indian tribes from unconsented suit, when Indian tribes are now

deeply involved in a wide range of business operations open to millions of members of

the public and hiring thousands of non-Indian employees in those businesses. The

common law doctrine of ultra_ vires acts is entitled to equal dignity and should have been

applied to any claim that Respondent was immune from liability for his tortuous conduct.

INTRODUCTION

Indian tribal casinos, hotels, restaurants and other businesses have expanded

geometrically in California over the past 15 years. These businesses employ over 50,000

employees and have millions of Califomia citizens as customers on a daily basis and their

revenues are estimated to exceed 8 billion dollars in California alone. Indian tribes own

and operate large casinos, hotels, restaurants, shopping malls, amusement parks, marinas

and other massive and lucrative business ventures open to the public.

Although the common law doctrine of Indian tribal immunity from unconsented

lawsuit has existed for some time this immunity is not unlimited or a complete defense.

This petition presents an example of a case in which those limits were exceeded. To

allow the continued expansion of this immunity doctrine has important impacts on all

residents of the state of California who patronize Indian businesses and have regular

dealings both on and off of Indian lands, not only with tribal governments, but with

employees, individual agents and officers of tribal businesses who may then improperly

invoke the cloak of that immunity doctrine to shield them from their intentional torts and

other misdeeds.

An individual agent, employee or officer of an Indian tribe is only entitled to the

defense that their conduct is shielded by the sovereign immunity available to the tribe

when it is clearly shown that their conduct was not ultra vires acts which the tribal

immunity doctrine does not act as a bar to civil prosecution. In addition Indian tribal

immunity is not a defense to violation of federal law, such as 42 U.S.C. 1983.

WHY REVIEW SHOULD BE GRANTED

This court should accept the petition and reverse the decision of the Court of

Appeals, 2 nd Appellate District Division 6 because that decision and other similar

decisions in the California Courts of Appeal present no clear or discernable limits to the

Indian tribal immunity doctrine and these various decisions have created ambiguous and

contradictory analyses and have failed to rationalize the tribal immunity doctrine with an

equally important common law doctrine creating liability for the ultra vires acts of agents

and employees of any sovereign including Indian tribal governments. Some of our

California courts of Appeal have, in effect, inadvertently expanded that common law

tribal immunity doctrine at a time when the United States Supreme Court has strongly

suggested its total elimination or at least a limitation of it in this modern day consumer

business climate. Although the majority of the U.S. Supreme Court deferred the

elimination of doctrine to Congress in 1998, Congress has not acted on the Supreme

Court's suggestion to amend the Foreign Sovereign Immunity Act 28 U.S.C. 1604-1607,

to include Indian tribes doing business with the public nor legislated its elimination or

modification. This is an increasingly important issue in California law that should be

settled and clarified by this court.

Claims of immunity from lawsuit made by individual tortfeasors, particularly

intentional torts, should not be shielded from civil prosecution by the vague claims of a

defendant such as Respondent made in this case, simply that they were working for a

sovereign entitled to immunity at the time they committed the tortuous and ultra vires

acts and therefore cannot be sued.

FACTUAL AND PROCEDURAL HISTORY

A. FACTS OF THE CASE

Petitioner was employed at the Santa Ynez Indian tribal gambling casino as a card

dealer from 1996 until approximately 1999. Petitioner voluntarily left that employment

in good standing. During that employment he knew and spoke with Respondent from

time to time and they discussed a potential business venture together. Petitioner wanted

to open his own state licensed non-Indian card room. Respondent was interested in

participating as an owner and investor. When Respondent's own employment was

terminated for sexual harassment well after Petitioner left the casino, Petitioner was no

longer interested in Respondent's participation and informed him of that fact.

Sometime after Petitioner left casino employment, members of the California

State Gambling Control commission, doing a routine license and background check

contacted Petitioner's former employer, the Chumash Casino. For reasons unclear at this

point, contacts occurred between Respondent and these state agents during which

Respondent made false and disparaging statements to them including some that would be

considered defamatory per se such as that Petitioner was suspected of theft while

employed there when in fact that was totally false.

These statements were made in retaliation to prevent Petitioner from obtaining a

needed State's license and the rejection of his involvement and further to appropriate the

private card room business opportunity they had discussed for himself.

When Petitioner found out what occurred by information furnished him by the

State Gambling Control Commission, he filed the present lawsuit.

B. PRIOR PROCEEDINGS

Petitioner filed his verified complaint against Respondent individually on 7

November 2007. Upon being served Respondent, by and through the Santa Ynez

Chumash tribal attomeys, filed a Motion to Quash Petitioner's summons and complaint

and dismiss his lawsuit. That Motion was filed on 19 December 2007 and set for hearing

29 January 2008. Respondent filed a declaration as did his brother Vincent Armenta the

tribal chairman in support of that motion.

On 29 January 2008 at a very brief hearing the trial court, the honorable Judge

Rodney S. Melville (now retired) dismissed Petitioner's complaint for lack of subject

matter jurisdiction because of the immunity from lawsuit of the Santa Ynez Band of

Chumash Indians, although Petitioner had not sued the tribe,

The Petitioner timely appealed that order of dismissal to the Court of Appeals,

Second Appellate District Division Six. The case was briefed by the parties and oral

argument held on 13 th of May 2009. After oral arguments were heard, that court entered

its decision affirming the trial court's order of dismissal on 20 May 2009.

C. THE COURT OF APPEALS DECISION

The Court of Appeals in their brief decision, affirming the trial court's dismissal,

held that the affidavit or declaration of Respondent was adequate to establish the trial

court's lack of subject matter jurisdiction and that Respondent was entitled to invoke the

defense that Petitioner's lawsuit against Respondent was barred by the common law

doctrine of"sovereign immunity". The trial court also ignored the claim of ultra vires

acts and Petitioner's cause of action under 42 U.S.C. 1983.

A copy of that decision is attached to this petition.

DISCUSSION

A. IT WAS IMPROPER, AND BOTH AN ERROR AT LAW AND AN

ABUSE OF DISCRETION TO AFFIRM THE TRIAL COURT'S DISMISSAL OF

PETITIONER'S VERIFIED COMPLAINT AGAINST THE INDIVIDUAL

RESPONDENT, OUT OF HAND, BASED ON THE VAGUE DECLARATION

SUBMITTED BY HIM, THAT DECLARATION DID NoT REFUTE PETITIONER'S

VERIFIED ALLEGATIONS OF INTENTIONAL TORTS AND ILLEGALITY WHICH

DECLARATION DID NOT ESTABLISH ANY LEGAL BASIS OF IMMUNITY

FROM CALIFORNIA STATE COURT'S JURISDICTION.

Plaintiff's verified complaint contained four articulated causes of action.

The First and Second causes of action alleged that Defendant (Respondent) Tony

Armenta made knowingly false statements about Plaintiff (Appellant) and conspired with

other unnamed individual non-Indian defendants to interfere with Petitioner's

(Defendant's) plans to open a non-Indian owned card club in the Pismo Beach area.

Respondent Tony Armenta was anxious to be personally involved as an owner and/or

investor in such a club. Petitioner further alleged below that Respondent (Defendant)

gave false information to the California State Gambling licensing board to damage him

and prevent Petitioner from getting a license and so that Respondent could then take

advantage of and appropriate that business opportunity for himself and for others he had

conspired with to interfere with Petitioner's business oppommity and those false

statements were to prevent Petitioner from obtaining the needed state license.

In the Third cause of action Petitioner alleged Respondent Tony Armenta had also

knowingly and intentionally defamed him by making false and defamatory statements

thatPetitionerhadengagedin criminal conductof atypedefamatoryperseandwhich

falsestatementsweremadeby him intentionallyandknowingly to injureanddamage

Petitionerandhis reputationanddestroyhiseligibility to obtainthenecessarystate

cardroomlicense.

Petitioner'sFourthcauseof actionin hisverifiedcomplaintallegedthat

RespondentTonyArmentaviolatedhiscivil rights in violation of 42U.S.C.1983under

color of federal,stateandIndianlaw andhedid in factviolatePetitioner'scivil rightsby

preventingPetitionerfrom obtaininga Statecardroomlicense.Petitioner'srightsto

obtainsuchalicenseis oneguaranteedto him by theUnited StatesConstitution,the

CaliforniaStateConstitution,andby Title 42UnitedStates Code section 1983.

In that complaint Petitioner did not name the tribe nor allege any vicarious

liability or any other theory of the liability of the tribe. Neither did Petitioner assert

Respondent was an agent, officer, or employee of the tribe or its business. Petitioner

alleged only that Respondent was an adult and resident of the County of Santa Barbra,

State of California.

As set out above, upon being served with the complaint, Respondent Tony

Armenta, by and through the tribal attorneys, filed a motion to Quash Service of Process

and dismiss the complaint on the claim that the trial court had no subject matter

jurisdiction because of the common law doctrine giving Indian tribes a measure of

immunity from unconsented lawsuits.

The motion was ostensibly supported by two Affidavits or declarations, one

executed by the Respondent's brother Vincent Armenta who was and is the tribal

chairman and the other by the Respondent (Defendant) Tony Armenta himself.

In thedeclarationof Vincent Armentaitems1-17hesubstantiallyassertedonly

theexistenceof thetribe asafederallyrecognizedIndiantribewho operatedagambling

casinounderacompactwith theStateof Californiaanddid soasanunincorporated

economicbusinessentity.

He furtherstatedthatRespondentTonyArmenta,(hisbrother),workedat the

casinofrom January1997to December2003. Furtherthatthecasinogenerally

cooperateswith othergamingregulatorsregardinginvestigationsandthat Respondent,at

one unspecifiedtime duringRespondent'semploymentatthecasino,hadauthorityto

"respondto" backgroundandlicensinginquiriesfrom stateandfederalgamingagencies.

Hedid not contradictanyof theverified allegationsin Petitioner'scomplaintnor

did heestablishthetime, placeandmannerof anyinvestigativecontactbetween

RespondentTonyArmentaandanyStatebackgroundinvestigatorsor thetypeandextent

of Respondent'sdutiesandauthority.

Theotherdeclarationsubmittedto thetrial courtwasRespondent'sown. In it he

acknowledgedPetitionerhadworkedat thatcasinobut hadleft employmentthereseveral

yearsprior to Respondent'sown terminationof employmentwhichwas in 2003.He

averredthat from March2002to his terminationof employmentin 2003hewasDirector

of TableGamesin chargeof blackjackandpokerdealerswhichwaslong afterPetitioner

hadleft. Hedid not identify thedateandplaceof anycontactswith theCaliforniaState

Gamingpersonnelexceptashavingoccurred"severalyearsafterGeneStroudwasno

longeremployedatthe casino..."

He furtheraverredthatprior to holdingthatsupervisoryposition in thecardroom

hewasemployedin othervariousunspecifiedpositionsin thecasinooperation.

Respondentrecalledin his declarationthatAppellantStroudhadbeenemployed

previouslyatthecasinoasacarddealer.

Respondentadmittedthatat thatlongafterAppellantStroudhadleft casino

employment,hehadoneormorecontactswith Statelicensingpersonnelanddiscussed

Petitioner.

He furtherstatedAppellant'spersonnelfile couldnot belocatedandhedid not

recallanyof theparticularsof anyconversationshehadwith stateemployeesbut thathe

didprovide(in hiswords) "information about Mr. Stroud's prior employment at the

Casino" and that information "was accurate to the best of my recollection at the time."

Neither his declaration nor that of his brother's, the tribal chairman Vince

Armenta, was properly dated and in fact bore no dates at all.

The tribe, or its attorneys arguing on behalf of Respondent, then asserted to the

trial court that Respondent's conduct, as alleged in Petitioner's verified complaint was

nevertheless covered by a blanket legal immunity from unconsented lawsuit that was

available to Indian tribes by the common law doctrine of immunity of Indian tribes from

unconsented lawsuit commonly called "sovereign immunity."

Based on this argument and these two declarations the trial court dismissed

Petitioner's complaint for lack of jurisdiction over his objection, disregarding Petitioner's

argument that Respondent's actions and statements were prohibited ultra vires acts and

that Petitioner's verified allegation of tortuous conduct were not specifically denied or

refuted. Further that Respondent's conduct constituted a violation of federal law, 42

U.S.C. 1983 for which no Indian tribal immunity was available.

As set out sup__, the Court of Appeal affirmed the trial court's dismissal without

addressing the ultra vires acts issue or the violation of federal law issue. Instead, relying

upon Lawrence v. Barona Valley Ranch Resort and Casino (2007) 153 Cal.App. 4 th 1364

the Appellate Court held that on a motion to quash for lack of jurisdiction the Plaintiff

bears the burden of proving by preponderance of the evidence that jurisdiction exists.

[Court of Appeals decision page 3] Further, disregarding Petitioner's verified complaint

the Court of Appeals concluded the two vague declarations submitted, [which did not

refute Petitioner's verified allegations] were "uncontradicted" before the trial court.

The court of appeal then concluded because there were no conflicting declarations

or facts before the trial court and under the authority 0f Warburton/Butner v. Superior

Court [2002] 103 Cal.App.4 th 1170, 1180, they could dispose of the appeal as a matter of

law and upon a de novo review. The Court of Appeals further concluded Petitioner had

no right to any basic preliminary discovery or evidentiary hearing he had requested to

determine those factual issues affecting the court's jurisdiction.

This analysis was both erroneous and an overly broad application of the tribal

"sovereign immunity" doctrine.

It is not enough to show that the Respondent had at one time worked for the

casino and knew of Petitioner Stroud's employment there as a dealer and, according to

his declaration, this was well before Respondent had become a supervisor in that

department where Petitioner worked but had left. Moreover the gratuitous, erroneous and

false statements he made to investigators after Petitioner had left casino employment are

10

not excused because they may have been made at the tribal casino or possibly in some

later contact wherever that may have occurred.l

To dismiss a case out of hand for lack of jurisdiction when Petitioner is denied

any opportunity to explore and discredit the factual basis for Respondent's claim that the

trial court lacked jurisdiction, flies in the face of most basic principles of due process of

law. 2 The Warburton/Buttner v. Superior Court [2002] 103 Cal.App.4 th 1170, 1180, case

also relied upon by the court of appeals as the basis for upholding and affirming the trial

court's summary dismissal of Petitioner's verified complaint provides as follows:

"The trial court's findings of lack of subject matter jurisdiction are

substantively flawed as well. Understandably, the trial court was cautious

in venturing into an area in which tribal sovereignty operates. However,

this was a discovery matter, and federal case law and California law both

allow for discovery into fundamental questions of subject matter

jurisdiction, in order that the court may be satisfied of its authority to act

in a particular dispute. (Great Western Casinos, supra, 74 Cal.App.4 th

1407, 1418.)

As Petitioner had argued before the Appellate panel in this case, every citizen of

the United States has a Constitutional right to a jury trial. It has long been the law that a

dismissal without the right to have that trial or an adequate hearing on the merits is

disfavored without a showing of some other very compelling interest. It is necessary then

to rationalize or weigh this Constitutional right to due process with the court created and

now disfavored Indian tribal immunity doctrine need to deny that due process of law.

xThe declaration did not even establish when, or where Respondent as declarant acquired any

knowledge about Petitioner's work quality, integrity or reliability or why these State Gaming officialswould have contacted him and not either the casino personnel department or the casino security departmentor both.

2 The Constitution of the United States and the California Constitution guarantees all citizens the

right to a jury trial and do not exclude lawsuits against individual Indian tribal members or employees.

11

In 1998United StatesSupremeCourt,in discussingthat commonlaw Indian

immunityfrom lawsuit doctrine,concludedthatthedoctrineof tribal immunity from

lawsuit, particularly in the widespread commercial endeavors Indian tribes are now

engaging in, was likely an outdated anachronism. See Kiowa Tribe of Oklahoma v.

Manufacturing Technologies, Inc. [1998] 523 U.S. 751,140 L.Ed.2d 981, 118 S.Ct.

1700. The court traced the doctrine to the 1919 case of Turner v. United States [1919]

248 U.S. 354, 358, 63 L.Ed. 291, 39 S.Ct. 109 stating at one point the doctrine was

characterized by the dissenting justices as having been created "almost by accident."

In the majority's words used to describe that immunity doctrine they said:

"The rationale it must be said can be challenged as inapposite to

modern wide ranging tribal enterprises extending well beyond tribal

customs and activities." [Kiowa Tribe of Oklahoma v. Manufacturing

Technologies, Inc. (1998) 523 U.S. 682, s_.]

The six justice majority declined, however, to eliminate the common law doctrine

in its entirety and suggested instead that Congress should do so, pointing out by way of

dicta, they could do so by simply amending the Foreign Sovereign Immunity Act 28

U.S.C. 1604 et.seq, which now renders foreign sovereign nations liable for their

misconduct when doing business in this country.

Writing for the three dissenting justices, justice Stevens described the common

law rule as having been created almost by accident, by the 1919 Turner case [.Turner v.

United States] 248 U.S. 354 sup__r__.,and he characterized it as having been founded on an

"anachronistic fiction." He went on to query logically,

12

"Why shouldan Indiantribe enjoybroaderimmunitythantheStates,theFederalgovernmentandforeignnations?"

Thisglaring legalabsurdityof sovereigntyor sovereignimmunity from thelaw is

evenmorevivid in light of thefactwehaveIndiantribesrecognizedor federally

acknowledgedin the UnitedStatesandin Californiawith I, 2 or 3 membersor perhapsa

handfulof memberswho oftentraceanyIndianancestryin smallfractionsandwhose

"nationalterritory" is lessthan10acres.

Althoughthemajority declinedto eliminatethe immunity doctrineoutrightand

deferredinsteadto Congressto doso,JusticeStevenspointedout therule is nevertheless

unjust,especiallyto tort victims. He furtheropined:

"...while I agreewith thecourt it isnow too lateto repudiatethedoctrineentirely,for thefollowing reasonsI wouldnotextendthe doctrinebeyondits presentcontours."

Despitethat sageadmonitionsomeof ourown CaliforniaCourtsof Appealare

expandingthedoctrinefurtherby extendingthetribal shieldof immunity well beyond

activitiesthat couldrationally orarguablybeassociatedwith theIndiantribal

governmentalaffairsthat it was,atleastostensibly,intendedto protect,andto

employees,officersor agentsof thetribeostensiblyengagedin tribal commercial

businessaffairs.

In ReddingRancheria v. Superior Court (Hansard) (2001) 88 Cal.App.4 th 384,

105 Cal.Rptr. 773, our Appellate Courts rather oddly extended the doctrine in California

to negligentacts occurring offof Indian Lands to apply at a private party in a bar, wholly

offof Indian Land when a tribal employee struck and injured an employee of the rented

13

facility wherethe party was being held while flinging gifts to the partygoers, In Great

Western Casinos, Inc. v. Morongo Band of Mission Indians [1999] 74 Cal.App.4 th 1407,

88 Cal.Rptr.2d 828 to the tribal entity for certain types of intentional torts. On the other

hand in Turner v. Martire [2000] 82 Cal.App.4 th 632 the court of Appeals held Indian

casino employees could be sued for using excessive force. See also Trudgeon v. Fantasy

Springs Casino [1998] 71 Cal.App.4 th 632.

The most common way to expand the doctrine, as evidenced by these cases, is to

extend the scope of the tribe's protective shield to individuals who claim entitlement to

the defense. As evidenced by this case and others, that immunity is being extended to

individuals even when their conduct is illegal or intentionally tortuous and flies directly

in the face of an equally important legal doctrine, that of liability of agents and

employees of any sovereign for their own ultra vires acts, as discussed infra.

All that Respondent claimed in his declaration in support of his (or the tribe's)

motion to quash, was that he worked at the tribal casino in various capacities and from

time to time had contact with the non-Indian California State Gambling Control

commission employees.

He did not testify he was Petitioner's Supervisor or that he was the tribal person

responsible for any background investigation instead of the Security Department or the

Casino Personnel Department or how he was likely to be in the position of and

knowledgeable about Petitioner's work history. Besides being false, his remarks could

also have been based on hearsay. Respondent also professed the casino's Personnel

Department, which presumably would have had Petitioner's employment records, had

somehow lost Petitioner's personnel file. Most importantly Respondent did not deny

Petitioner's verified allegations that Respondent intentionally provided false and

14

defamatoryinformationaboutPetitionerandthatin doingsohewasmotivatedbymalice,

jealousyor revenge,andin retaliationagainstPetitionerheintendedto vindictively

interferewith thecontractualrelationsandabusinessventurePetitionerwastrying to

establishandpreventhis obtaininga Californiacardroomlicense.Neitherdid hedeny

thatheintendedto preventPetitionerfrom openinghisown cardclubbecausePetitioner

hadexcludedhim from thedeal.

Normally for immunity of thetribe to shieldtheact of an Individual it mustbe

shownthatthe individual is atribal officeror official engagingin somekind of

discretionaryor official tribal actionbeingdonefor or onbehalfof thetribe. Baugus v.

Brunson [E.D. Cal. 1995] 890 F.Supp. 908. See also the extensive discussion in Falls v.

Superior Court [1996] 42 Cal.App. 4 t" 1031, 49 Cal.Rptr. 908. This fact makes inquiry

into the individual's specific duties, authority and responsibilities a matter of critical

concern. Davis v. Littell [9 th Cir. 1968] 398 F.3d 83.

In similar situations the quasi-sovereign immunity of public and judicial officials

was found to be non-existent when, for example a prosecuting attorney made inflammatory

public statements at a news conference. See Marx v. Gumbinner [1988] 855 F.2d 783 and

Buckley v. Fitzimmons [1993] 509 U.S. 259, 125 L.Ed. 209 113 S.Ct. 2606.

B. IT WAS ERROR FOR THE COURT OF APPEALS TO HAVE

REQUIRED PETITIONER TO REBUT OR CONTRADICT THE VAGUE

DECLARATION OF RESPONDENT, WHICH DID NOT DENY THE VERY

SPECIFIC VERIFIED ALLEGATIONS OF PETITIONER'S COMPLAINT, AND

THEN REQUIRE PETITIONER TO ESTABLISH THE EXISTENCE OF COURT'S

JURISDICTION TO HEAR HIS CASE.

15

As setout above,theCourt of AppealsfaultedPetitionerfor notproviding

additionalfactsbeyondhis verifiedcomplaint. HadPetitionerbeenableto conductsome

basicdiscoverysuchasdeterminingif Respondenthadanyaccessto Petitioner'swork

history,internalinvestigationsor evenhadsupervisedPetitionerat anytime hecould

likely haveestablishednot only thefalsity of Respondent'sstatementsbut alsothathe

violatedthetribe's ownpoliciesandpersonnelmanual.Respondent'svaguedeclaration

did notprovideanyinsightasto howhewouldhaveknownas fact, any of the false

accusations made gratuitously to California State Gaming Commission employees when

they spoke with him at undisclosed locations. In fact, in addition to that failure to

identify on what basis he made the false statements as alleged in Petitioner's complaint,

he did not even identify the time, place and circumstances of the "contact or contacts" he

alluded to with California State Gambling Control officials.

A verified complaint is the equivalent of a declaration. Both are made under oath

and attest to the factual nature of their contents.

By dismissing Petitioner's complaint out of hand the trial court denied Petitioner

any opportunity to present basic facts addressing whether the State court did or did not

have subject matter jurisdiction of Petitioner's lawsuit against Respondent.

For purposes of any motion to dismiss the trial court is bound to accept the

verified allegations set out in Petitioner's complaint as true. Davids v. Coyhis [1994] 869

F.Supp. 1409, see also LeBlanc v. Shirley [1984] 598 F.Supp. 747. See also Lewis Ave.

Parent Teachers Assoc. v. Hussey [1967 App. 1st Dist.] 250 Cal.App.2d 232, 58 Cal.Rptr.

499.

16

It waserrorfor theCourt of Appealsto haveconcludedthatthevaguenon-

specificdeclarationof Respondent,missinganumberof critical factsonthe issueof

Respondent'sofficial dutieswasadequate.It certainlydid not supporthis claim of

immunity which failed to establish Respondent's fight to the tribe's immunity.

Moreover it was clearly erroneous for the Court of Appeal to assert that declaration was

"uncontradicted" by Petitioner's verified complaint. At the very least, the trial court

should have allowed discovery on those critical issues regarding the subject matter, and

set the case for a further evidentiary hearing once discovery was completed. Discovery

for purposes of determining subject matter jurisdiction is appropriate. Warburton/Buttner

v. Superior Court [2002] 103 Cal.App.4 th 1170 su_u.p__.

As set out above California law provides ample legal avenues to dismiss or render

final judgment in eases in which it is established at any time that the court did not have

subject matter jurisdiction. In Great Western Casinos, Inc. v. Morongo Band of Mission

Indians [1999] 74 Cal.App.4 th 1407, 88 Cal.Rptr. 828, another case relied upon by the

court of Appeals below and addressing his very issue the court said:

Nevertheless, even assuming sovereign immunity relates to the state

court's subject matter rather than personal jurisdiction, it does not follow

we must be constrained in our review of the trial court's ruling to simply

the allegations of the complaint as if defendants had demurred. Indeed in

Boisclair v. Superior Court, supra, 51 Cal.3d 1140, the Supreme Court

reviewed a similar claim of Indian sovereign immunity through the

procedural device of a hybrid motion to quash/dismiss. There the court

noted "although a motion to quash is normally directed at defects in

personal, as opposed to subject matter, jurisdiction (see 2 Witkin, Cal.

Procedure (3d ed. 1985) Jurisdiction, § 161, pp. 546-548), we have

recognized the hybrid motion to quash/dismiss as a proper means of

challenging the court's authority without making a general appearance.

(Goodwine v. Superior Court (1965) 63 Cal.2d 481,484-485 [47 Cal.Rptr.

201,207 P.2d 1]; see also Kumar v. Superior Court (1982) 32 Cal.3d 689,

691 [186 Cal.Rptr. 772, 652 P.2d 1003] [propriety of motion assumed].)

17

This is consistentwith thegeneralrulethatsubjectmatterjurisdiction canbechallengedat anytime duringthecourseof anaction. (Barnickv.

Longs Drug Stores (1988) 203 Cal.App.3d 377, 379 [250Cal.Rptr. 10].)"

(Id atp. 1144, fn. 1.)

If the lack of subject matter jurisdiction can be raised at any time, it seems

to follow no specified procedural vehicle should be required to bring the

matter to the court's attention, for example, it would be anomalous to

require a defendant to demur to a complaint, or to file another answer, or a

[74 Cal.App.4 th 1418] motion for judgment on the pleadings if the defect

only came to light in the middle of a trial, Moreover, if subject matter

jurisdiction may be challenged at any time during the course of an action it

is logical for the court to consider all admissible evidence then before it in

making its determination - whatever the procedural posture of the case.

Permitting as thorough a review by the court considering the challenge is

in accord with the principle a court's subject matter jurisdiction is so

fundamental it may be attacked at any time.

In the present case the trial court was faced With competing claims

whether the defendants had waived their sovereign immunity and had

consented to suit. To resolve the conflict the trial court necessarily had to

go beyond the pleadings and contract language to consider the testimonial

and documentary evidence submitted with defendants' motion to

stay/quash/dismiss and GWC's opposition to those motions. "Generally,

in entertaining a motion to dismiss, the district court must accept the

allegations of the complaint as true, and construe all inferences in the

plaintiff's favor. [Citation.] 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, however, the court must engage in

sufficient pretrial factual and legal determinations to '"satisfy itself of its

authority to hear the case" before trial.' ..." (Jungquist v. Sheikh Sultan

Bin Khalifa AlNahyan (D.C. Cir. 1997) 115 F.3d 1020, 1027-1028 [325

App.D.C. 117]; cf. Ziller Electronics Lab GmbH v. Superior Court (1988)

206 Cal.App.3d 1222, 1232-1233 [254 Cal.Rptr. 410] [when a defendant

challenges personal jurisdiction, the burden shifts to the plaintiff to prove

the necessary jurisdictional criteria are met by competent evidence in

affidavits and authenticated documentary evidence; allegations in an

unverilqed complaint are inadequate.].) (emphasis added by italics)

It was clearly error for the court of Appeals to have ignored Petitioner's specific

and verified complaint and describe the vague inadequate declaration of Respondent as

being "uncontradicted. "

18

C. THE CONDUCT OF PETITIONER IS NOT PART OF HIS DUTIES, HE

DID NOT ESTABLISH SO IN THE NON-SPECIFIC AND VAGUE DECLARATION

FILED IN THE TRIAL COURT AND HIS DISPARAGING STATEMENTS WERE

MADE TO THE STATE GAMBLING COMMISSION WERE ULTRA VIRES ACTS

UNDER THE COMMON LAW DOCTRINE OF ULTRA VIRES ACTS. THAT WELL

REASONED DOCTRINE IS ENTTILED TO EQUAL DIGNITY WITH THE

COMMON LAW TRIBAL IMMUNITY DOCTRINE PARTICULARLY WHERE IT

FORMERLY WAS ESTABLSHED TO LIMIT THE VERY ABUSES AND MIS-USE

OF THE SOVEREIGN IMMUNITY DOCTRINE TO DEFEAT PROPER LAWSUITS.

The leading case establishing the common law doctrine creating individual

liability of a defendant who is claiming the right to his sovereign's immunity from

lawsuit is Larsen v. Domestic and Foreign Commerce Corporation, [1949] 337 U.S. 682,

93 L.Ed. 1628, 69 S.Ct. 1457. In that case the court described the basis of decisions in

which the doctrine would be applied at length. The court described them as follows:

"Our decisions fall under these heads:

(1) Cases in which the plaintiff seeks an interest in property which

concededly even under the allegations of the complaint, belongs to the

government, or calls for an assertion of what is unquestionably official

authority,

(2) Cases in which action to the legal detriment of a Plaintiff is taken by

an official justifying his action under an unconstitutional statute.

(3) Cases in which the plaintiff suffers a legal detriment through action

of an officer who has exceeded his statutory authority,

19

(4) Cases in which an officer seeks shelter behind statutory authority or

some other sovereign command for the commission of a common-lawtort.

These latter two categories are those directly applicable to the present case. These

principles have been held to be the law of California as well. See Boisclair v. Superior

Court [1999] 51 Cal.3d 1140, 1157 supra, citing Santa Clara Pueblo v. Martinez [1978]

436 U.S. 49, 59, 56 L.Ed.2d 106, 115-116, 98 S.Ct. 1670.

Absent the establishment of the right to claim the cloak of the immunity of the

Indian tribe the conduct of Respondent is clearly actionable in the Courts of the State of

California. See Bryan v. Itasca County Minn. [1976] 426 U.S. 373, 48 L.Ed.2d 710, 96

S.Ct. 2102. See also Turner v. Martire 82 Cal.App.4 th 1042 su.__U_p__.

CONCLUSION

The Court of Appeals erred in affirming the trial court's order of dismissal based

on the vague inadequate declaration of Respondent which did not establish the right to

invoke the legal immunity of the tribe for his gratuitous misrepresentations, defamatory

and disparaging statements made to the state's Gambling license agency to prevent

Petitioner from obtaining his California State cardroom license. The court of Appeals

further erred in holding Petitioner had a burden to rebut or contradict Respondent's vague

and inadequate declarations and finding that Respondent's Declaration was unrebutted

when Petitioner's complaint was verified and specific.

In addition the Court of Appeals further erred in failing to even consider the

question of whether the common law doctrine, of ultra vires acts establish liability for

tortuous conduct even while acting for, or purporting to act for the otherwise immune

20

sovereignwheresuchconductisnot within theauthorityandscopeof thetortfeasor's

duties. In thepresentcasealthoughRespondentmighthavecontactwith gambling

controlpersonnelor othergamingagenciesfrom time to time, hehadno authorityto

makefalseanddamagingstatementsin anattemptto preventPetitionerfrom acquiringa

cardclublicenseout of avindictivemotiveandplanto obtainthebusinessopportunity

for hisown benefit.Verified allegationsin Petitioner'scomplaintthatwerenot deniedin

Respondent'strial courtdeclaration.Stateandfederalgamingofficials could"make

contact"with anycasinoemployeefromthemanagerto avaletparkingattendant.

Finally thetrial court furthererredby failing to addresstheissueraisedby

Petitioner(Plaintiff's) FourthCauseof Action in their denovoreviewof thetrial court's

orderof dismissal.That fourthcauseof actionallegedthatRespondentviolated

Petitioner'scivil rightsunderfederallaw,42U.S.C.1983bymakingfalsestatementsto

officials of theCalifornia StateGamblingControlCommissionto preventPetitionerfrom

obtainingacardroomlicenseandto appropriatethebusinessopportunitythatwas

revealedto Respondentby Petitionerandhedid soundercolorof law, theIGRA 25

U.S.C.2701et.sefl,andArt. 4 section19of theCaliforniaConstitution.

RespondentviolatedPetitioner'scivil rightsunderthecolor of tribal or Indianlaw

andin violationof theConstitutionandlawsof theUnited Statesaswell, all to

Petitioner'sdamagesandthedefenseof "sovereignimmunity" of an Indiantribe is not

availableasadefenseto violationsof federallaw by tribal governmentsagainstnon-

Indians.

21

CERTIFICATION OF WORD LIMITATION

Case Nos. Court of Appeals No. B206934 & SBSC 1249954

I, JAMES E. MAR1NO, CERTIFY THAT:

Plaintiff and Appellant's Petition for Review is 21 pages long and

contains 5,871 words.

I declare under Penalty of Perjury the foregoing is true and correct.

Executed this 26 th day of June, 2009.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Cal Rules of Court, Rule 8.208)

There are no interested entities or persons to list in this certificate

(Cal. Rules of Court, Rule 8.208(d)(3)).

Dated: 25 June 2009 _b(_ .__

es E. Marino

DECISION OF THE COURT OF APPEALS

SECOND APPELLATE DISTRICT

DIVISION SIX

NOT TO BEPUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions notcertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certifiedfor publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

GENE STROUD,

Plaintiff and Appellant,

V.

TONY ARMENTA,

Defendant and Respondent.

2d Civil No. B206934

(Super. Ct. No. I249954)

(Santa Barbara County)

COURT OF APPEAL - SECOND DIST.

MAY 2 0 2009

JOSEPH A. LANE, Clerk

In this action for defamation and interference with business advantage, •

Gene Stroud appeals from an order granting Tony Armenta's motion to quash service of

the summons and complaint on grounds of tribal sovereign immunity. We aff'frm.

FACTUAL AND PROCEDURAL BACKGROUND

The Santa Ynez Band of Chumash Indians (the Tribe) is a federally

recognized Indian tribe. It employed Stroud as a blackjack dealer at the Chumash

Casino, a tribal enterprise (the Casino). Stroud's supervisor was Tony Armenta, a

member of the Tribe and its Director of Table Games. Stroud resigned from the Casino

with the intention of starting his own non-Indian card room. Stroud applied to the

California Gambling Control Commission (the Commission) for a card room license.

The Commission conducted a background check during which they

interviewed Armenta. According to Stroud's complaint, Armenta made defamatory

statementsto the Commission out of spite becauseStroud had excluded Armenta from

the new card-room enterprise. Specifically, Stroud allegesthat Armenta falsely

reported that Stroud engagedin theft while employed by the casino. As a result of the

false statements,Stroud alieges,his license application hasbeendelayedand may be

denied.

Annenta brought a motion to quashthe summons for lack of jurisdiction

basedOntribal sovereign immunity. Armenta presentedhis declaration and that of the

tribal Chairman (his brother) to establish that his statementsto the Commission were

madein his official capacity and within the scopeof his valid authority. Stroud offered

no evidence in rebuttal, relying instead on the allegationsof his complaint. The trial

court grantedthe motion to quash.

_ .- ..::: .....:.-_ DISCUSSION

ion a motion to;quashinvoking tribal sovereign immunity, theplaintiff

bearsthe burden of proving by apreponderanceof the evidencethat jurisdiction exists.

(Lawrence v. Barona _a!l.ey_Ranch Resort & casino (2007) 153 Cal.App.4th 1364,

1369.) In the abSence of conflicting affidavits, the question whether tribal Sovereign

immunity deprives a court of subject matter jurisdiction is a question of law subject to

our de novo review. (Warburton/Buttner v. Superior Court (2002) 1'03 Cal.App.4th

1170, 1180.)

"As a matter of federal law, an Indian tribe is subject to suit only where

Congress has authorized the suitor the tribe has waived its immunity." (Kiowa Tribe v.

Manufacturing Tech. (1998) 523 U.S. 751,754.) Tribal sovereign immunity applies to

commercial as well as governmental activities. (! d. at p. 760.) Our federal and state

supreme courts have suggested that Congress should abrogate or limit the doctrine of

tribal sovereign immunity, but the doctrine remains viable in the absence of legislative

action. (Id. at p. 758; Agua Caliente Band of Cahuilla Indians v. Superior Court (2006)

40 Cal.4th 239,254.)

Tribal immunity extends to individual tribal officials and agents when

they act in their official capacity, within the scope of their valid authority, (Great

2

Western Casinos, Inc. k Morongo Band of Mission Indians (1999) 74 Cal.App.4th

1407, 14il, Morongo.) On the other hand, conduct that exceeds the official's authority

is not protected. _ (Ibid.) Tribal sovereign immunity applies to tort claims. (Trudgeon v.

Fantasy Springs Casino(1999) 71 Cal.App.4th 632, 636.)

In Morongo, a tribe's former gaming manager, Great Western Casinos,

brought suit against individual tribal council members for fraud and other tortsl

(Morongo, supra, 74 Cal.App.4th at p. 1411 .) Great Western Casinos alleged that the

council members falsely reported illegal gaming activity to government officials in

order to create contractual grounds for ousting plaintiff as a manager. (Id. at 1413.)

Great Western Casinos also alleged that council members wrongfially induced another

tribe to cancel its management contract with Great Western Casinos. (Ibid.) A motion

to quash summons was properly granted because the council members acted collectively

on behalf of the tribe and tlae allegations of the complaint did not suggest that any

individual council member acted beyond his or her official authority. (Id. at p. 1422.)

Here, Stroud alleges that Armenta was motivated by personal

vindictiveness and that his conduct was "ultra vires." The affidavits of Armenta and of

the tribal Chairman establish that Armenta acted within the scope of his authority as a

tribal Official. The tribe periodica!ly responds to Commission inquiries, and Armenta

was authorized to do so as the Director of Table Games. Armenta declared that he was

questioned at the Casino by the Commission in his capacity as Director of Table Games

and as Stroud's former supervisor. Stroud offered no contradictory evidence.

Whatever Armenta's motivations may have been, it appears from the face

of the complaint and the unrefuted affidavits that the statements he made tO the

Commission were made in his official capacity and within the scope of his authority as

a tribal official or agent. He is therefore immune from suit. Stroud contends that he is

entitled to an evidentiary hearing on the question whether Armenta's conduct was

authorized, but where the affidavits submitted in support and opposition to a motion to

quash create no relevant factual conflict, the question of jurisdiction may be determined

asa matter of law. (International Aerial Tramway Corp. v. Konrad Doppelmayr &

Sohn (1969)'70 Cal.2d 400, 404.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

COFFEE, J.

GILBERT, P.J.

YEGAN, J.

Rodney S.Melville, Judge

Superior Court County of SantaBarbara

JamesE. Marino for Plaintiff andAppellant.

Mariscal, Weeks,McIntyre & Friedlander, P.A, Glenn M. Feldmanand

Stidham Law Offices andLawrence R. Stidham for Defendantand Respondent.

PROOF OF SERVICE

I am, and was at the time of the service hereinafter mentioned, over 18 years of age andnot a party to the above-entitled action. My business address is 1026 Camino del Rio, Santa

Barbara, California 93110. I am employed in the County of Santa Barbara.

On 26 June 2009, I served the within PETITION FOR HEARING on the following, byplacing a true copy in the United States Mail, postage prepaid and addressed as follows:

Glenn M. Feldman

Mariscal, Weeks, Mclntyre & Friedlander, P.A.2901 N. Central Ave., Suite 200

Phoenix, AZ 85012-2705

Lawrence R. StidhamStidham Law Offices210 5th Street

Ramona, CA 92065

California State Court of Appeals

Second Appellate DistrictDivision 6

Ventura, CA

The Honorable Rodney J. Melville Judge (Ret.)

Superior Court of the State of California

County of Santa Barbara, Santa Maria - Cook Division312 E. Cook Street

Santa Maria, CA 93456-5369

I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct, and that th was executed on 26 June 2009.

__no_ _