2013-00142939-CU-BC

Jennifer Chrisman vs. Alturas Indian Rancheria

Nature of Proceeding:    Hearing on Demurrer

Filed By:   Marston, Lester J. The Court set this matter on calendar for this date for oral argument after plaintiff
stated she had intended to appear for oral argument on January 9, 2014,  but
appeared at 4:00 instead of 2:00 p.m.

The tentative ruling is repeated below:

Defendant’s Demurrer to the Complaint is overruled

Defendant Alturas Indian Rancheria previously made a motion to quash service of
summons, which the Court denied.  See minute order, Department 53, August 28,
2013.  The Court ordered defendant to respond to the Complaint, and defendant now
brings a demurrer, raising the same issues that it raised on the motion to quash.

Defendant’s Request for Judicial Notice is denied.  The Court cannot take judicial
notice of the truth of statements in documents or that the documents such as the Tribal
Claims Ordinance are what they purport to be.  There is a disputed issue of fact as to
whether the claims procedure existed before the dispute arose or was instead created
in response to the lawsuit. The facts concerning this dispute go beyond the scope of
the demurrer. A hearing on a demurrer cannot be turned into a contested evidentiary
hearing through the guise of having the court take judicial notice of documents whose
truthfulness or proper interpretation are disputable. ( Unruh-Haxton v. Regents of Univ.
of Cal. (2008) 162 Cal.App.4th 343, 365.)

Plaintiff alleges a claim for breach of contract and fraud arising out of an agreement
with Tribe in which Tribe agreed to provide lifetime employment to plaintiff as the
“Associate Gaming Commissioner” with any and all benefits offered to other
employees of the Desert Rose Casino (“Casino”), including health, dental, vision and
life insurance.  Chrisman’s salary was to be $3,000.00 per month, paid pursuant to the
existing payroll policies currently in existence for all employees of the Casino.   Tribe
agreed to dismiss all claims against Chrisman arising out of a complaint it had filed
against her alleging violation of the Tribe’s code of conduct.

The Contract attached to the Complaint contains the following language:

“3. WAIVER OF SOVEREIGN IMMUNITY; CHOICE OF VENUE
(A) The Tribe hereby expressly and irrevocably waives its sovereign immunity
from unconsented suit and all defense based thereon, and consents to suit for
any action arising out of or related to this Agreement. The Tribe hereby
irrevocably waives its sovereign immunity from a judgment or order consistent
with the terms and conditions of this waiver.
[emphasis added]
(B) With respect to any action arising out of or related to this Agreement, the Tribe
hereby irrevocably and unconditionally submits to the exclusive jurisdiction and venue
of the Superior Court of Sacramento County, California to be sued in and accepts and
agrees to be bound by any order or judgment of the Sacramento County Superior
Court.”

It is, of course, axiomatic that an Indian tribe cannot be sued – whether in tort or
contract, law or equity – unless Congress has authorized the suit or the tribe has
clearly waived its immunity. See Campo Band of Mission Indians v. Superior Court ,
(2006) 137 Cal.App.4th 175, 182. A waiver of tribal immunity cannot be implied but
must be unequivocally expressed. Warburton/Buttner v. Superior Court, (2002) 103
Cal.App.4th 1170, 1182. In sum, to relinquish its immunity, a tribe’s waiver must be
clear. Waivers are “strictly construed.” Because a waiver of immunity is altogether
voluntary on the part of a tribe, it follows that a tribe may prescribe the terms and
conditions on which it consents to be sued, and the manner in which the suit shall be
conducted. Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal. App.
4th 1185, 1193. Here, the language of the contract is clear, unequivocal, and
unambiguous.

Breach of Contract:  Overruled.  The Complaint adequately contains the elements of
a breach of contract claim.  The Court has previously ruled based on the evidence
before it that Tribe has waived its sovereign immunity and consented to this court’s
jurisdiction.  (See Minute Order August 28, 2013.)   Tribe further contends that the
Court cannot become involved in “internal tribal matters”. Clearly, and as the Court has
already noted in prior rulings,  jurisdiction to resolve internal tribal disputes and
interpret tribal constitutions and laws lies with Indian tribes. See United States v.
Wheeler (1978) 435 U.S. 313, 323-36 (noting that Indian tribes are “unique
aggregations possessing attributes of sovereignty over both their members and their
territory” (citing United States v. Mazurie (1975) 419 U.S. 544, 557,; Turner v. United
States(1919) 248 U.S. 354, 354-355; and Cherokee Nation v. Georgia (1831) 30 U.S.
1, 16-17; Runs After v. United States, 766 F.2d 347, 352 (8th Cir. 1985) (holding that
the district court lacked jurisdiction to resolve “disputes involving questions of
interpretation of the tribal constitution and tribal law” (citations omitted)); Smith v.
Babbitt, 100 F.3d 556, 559 (8th Cir. 1996). However, the Court cannot determine at the
pleading stage whether adjudicating this employment contract dispute [and related tort
fraud claim, infra.] involves internal tribal matters outside this Court’s jurisdiction, in
light of the contract terms that stipulate to venue in the Sacramento Superior Court to
resolve any dispute arising from the contract.

Fraud:  Overruled. Plaintiff alleges the claim with sufficient specificity, in that she
alleges that defendants had no intent to perform pursuant to the contract terms at the
time the contract was entered into.

Answer to be filed and served on or before February 24, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.