2017-00206329-CU-FR

Cynthia Lopez vs. Eric Quaempts

Nature of Proceeding: Motion to Quash/Dismiss Plaintiff’s 1st Amended Complaint

Filed By: Gildea, Michelle M.

Specially-appearing Defendants The Confederated Tribes of the Umatilla Indian Reservation (“CTUIR”), Eric Quaempts (“Quaempts”) and David Tovey’s (“Tovey”) (collectively, “Defendants”) motion to quash is GRANTED.

Background

Previously in this action, the Court tentatively granted Defendants’ motion to quash based on tribal immunity, which raised identical and substantially similar issues to those raised in the instant motion to quash. After taking the matter under submission, the Court vacated the tentative ruling and denied the motion to quash, without prejudice, allowing Plaintiff to file an amended complaint alleging facts that could defeat sovereign immunity, and to conduct discovery on the issue of “ratification.” However, the tentative ruling was vacated only to allow certain discovery and the filing of an amended complaint. The tentative ruling continued to express the Court’s perception of the legal issues raised by the motion to quash.

Now, Plaintiff has filed an amended pleading, the First Amended Complaint (“FAC”) and completed her requested discovery. Having considered the amended pleading and the arguments made in Plaintiff’s Opposition to the instant motion to quash, the Court has come to the same conclusion as before: tribal immunity applies here, and the motion to quash must be granted.

Allegations in FAC

In this action, Plaintiff Cynthia Lopez (“Plaintiff”) alleges that Defendants hired her “under false and deceptive pretenses” and retaliated against her for bringing funding and staffing issues to light. (FAC ¶ 9.) The FAC alleges causes of action for: (1) Fraud, (2) Negligent Misrepresentation, (3) Fraudulent Misrepresentation – Labor Code § 970, and (4) Unfair Business Practices – Business & Professions Code § 17200.

Plaintiff alleges that “Defendant Eric Quaempts, while employed with the [CTUIR] as Director of the Natural Resources Department, committed the federal crime of false advertising and California state crime of fraudulent and deceptive advertising by using false information and misrepresentations in advertising and recruiting to fraudulently induce Plaintiff, Dr. Cynthia Lopez, to leave her employment within the State of California and to exploit Dr. Lopez’ experience, labor, and reputation for the benefit of himself and the CTUIR.” (FAC ¶ 1.)

Plaintiff alleges that “Defendant CTUIR, a Tribal governmental entity, failed to prevent their employees’ (Mr. Quaempts’ and Mr. Tovey’s) fraudulent actions, and then failed to correct the situation after Plaintiff Lopez came to work at the CTUIR, learned about the misrepresentations, and complained about them.” (FAC ¶ 4.) Plaintiff alleges that Quaempts and Tovey “are individuals employed with the CTUIR.” (FAC ¶ 12.) Plaintiff alleges that each Defendant was the “agent, employee, partner and/or representative of one or more of the remaining Defendants and was acting within the course of such relationship at the time of the events described herein, although some of the acts alleged were beyond the scope of authority of said employment. Plaintiff is further informed and believes that each of the Defendants herein gave consent to, ratified and authorized the acts alleged herein to each of the remaining Defendants and those acts were beyond the scope of authority of the employment.” (FAC ¶ 13.)

Plaintiff alleges that she was “induced” through false promises of “a fully funded program to manage, with a budget of $600,000 to $700,000 and a staff of 3-5 individuals” if she were hired as “the CTUIR’s First Foods Policy Program (“the FFPP”) Manager.” (FAC ¶ 5.) Plaintiff alleges that through Quaempts’ actions, “the funding and staffing for the FFPP dwindled to $347,369 and 1.5 full-time equivalent staff” but

Quaempts and Tovey “expected the Program to conduct the same or more work as in prior years.” (FAC ¶ 6.) Plaintiff alleges that Quaempts refused to “correct the situation” after Lopez complained, and thereafter retaliated against her. (FAC ¶¶ 3-4.)

Plaintiff also alleges that “Defendant David Tovey, while employed as Executive Director with the CTUIR and directly supervising Mr. Quaempts, failed to adequately supervise Mr. Quaempts and approved the false, deceptive, and fraudulent advertisement and job description for public dissemination and distribution . . . .” (FAC

¶ 3.) “Defendant Tovey also did not act to correct the situation after Plaintiff Lopez raised the issue about the false and deceptive advertisements and misrepresentations.” (FAC ¶ 3.)

Plaintiff’s pleading includes the legal argument that “Tribal jurisdiction does not apply as false and deceptive advertising is a crime, committed outside of the CTUIR’s tribal reservations and lands and is therefore subject to the criminal and civil jurisdiction of where the crime occurred.” (FAC ¶ 15.) Tribal jurisdiction also does not apply as no language in the false and deceptive vacancy announcement and position description disclosed or indicated in any way that tribal jurisdiction applied to the application process and Dr. Lopez did not waive her rights or agree to Tribal jurisdiction during the application process, when the relevant crimes were committed in Sacramento, California. Hence, any dispute resulting from the pre-employment process is not subject to die CTUIR tribal jurisdiction; rather, it is subject to California jurisdiction.” (FAC ¶ 16.)

For the second time in this case, Defendants move to quash and dismiss pursuant to Code of Civil Procedure § 418.10 and other authorities on the basis that this Court lacks jurisdiction over them given their status as a federally-recognized Indian Tribe (as to Defendant CTUIR) and as tribal employees acting in their official capacities (as to Defendants Quaempts and Tovey).

Legal Standard

The Supreme Court has consistently “recognized Indian tribes as ‘distinct, independent political communities,’ [citation], qualified to exercise many of the powers and prerogatives of self-government.” (Plains Commerce Bank v. Long Family Land & Cattle Co. (2008) 554 U.S. 316, 327.) Accordingly, the tribes may establish their own law with respect to “internal and social relations.” (Ackerman v. Edwards (2004) 121 Cal.App.4th 946, 951.) “This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. . . . ‘[W]ithout congressional authorization,’ the ‘Indian Nations are exempt from suit.’ ” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58.)

Generally, Indian tribes enjoy sovereign immunity from suit in state or federal court. ( Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58; see also Ameriloan v. Superior Court (2009) 169 Cal.App.4th 81; People v. Miami Nation Enterprises (2014) 223 Cal.App.4th 21.) 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. (Campo Band of Mission Indians v. Superior Court (2006) 137 Cal. App. 4th 175, 181-182.) To be clear, Indian tribes enjoy sovereign immunity “from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.” (Kiowa Tribe v. Manufacturing Tech. (1998) 523 U.S. 751, 760 (Kiowa ).) “As a matter of federal law, an Indian tribe is subject to suit only

where Congress has authorized the suit or the tribe has waived its [sovereign] immunity.” [emphasis added] (Id. at p. 754.) “[T]o relinquish its immunity, a tribe’s waiver must be ‘clear.’ ” (C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe (2001) 532 U.S. 411, 418 (C&L).) For a waiver to be effective, it “must be made by a person or entity authorized to do so.” (Yavapai-Apache Nation v. Iipay Nation of Santa Ysabel (2011) 201 Cal.App.4th 190, 206.) The party claiming a tribe has waived its sovereign immunity bears the burden of proof on the issue. (Id. at p. 205.) In this context, sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation but that rather , it presents a pure jurisdictional question. (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1182.)

Tribal immunity from suit has been sustained by the courts without drawing a distinction based on where the tribal activities occurred. (Kiowa Tribe v. Mfg. Techs. (1998) 523 U.S. 751, 754.) Tribal immunity can apply whether the tribe’s activities take place on or off of tribal property. (See, e.g. Redding Rancheria v. Superior Court (2001) 88 Cal.App.4th 384, 388-90 (reversing trial court and holding that tribal casino was immune from suit under sovereign immunity for activities taken by the casino off tribal property; because “[a]ny change or limitation of the doctrine (e.g. to exclude off-reservation tort suits) must come from Congress.”).) Indeed, any authorization or waiver “cannot be implied but must be unequivocally expressed.” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58 [98 S. Ct. at p. 1677]; accord, Middletown Rancheria v. Workers’ Comp. Appeals Bd. (1998) 60 Cal. App. 4th 1340, 1347.) And since it emanates from federal law, tribal immunity “is not subject to diminution by the States.” (Kiowa Tribe of Okla., supra, 523 U.S. at p. 756 [118 S. Ct. at p. 1703].)

A tribe’s sovereign immunity extends to tribal officials when they act in their official capacity and within the scope of their authority. (Trudgeon v. Fantasy Springs Casino, (1999) 71 Cal.App.4th 632, 643; Imperial Granite Company v. Pala Band of Mission Indians (9th Cir. 1991) 940 F.2d 1269, 1271.) When tribal officials “act ‘in their official capacity and within the scope of their 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.) However, “when such officials act beyond their authority, they lose their entitlement to the immunity of the sovereign.” (Imperial Granite Company v. Pala Band of Mission Indians (1991) 940 F.2d 1269, 1271.)

Again, as this court has repeatedly expressed in the context of these motions, it must be underscored that a waiver of tribal immunity cannot be implied. Rather, it must be expressed unequivocally. (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1182.) A tribe’s waiver must be clear. C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma (2001) 532 U.S. 411, 418.

On a motion to dismiss for lack of subject matter jurisdiction, the party asserting jurisdiction has the burden of proving the facts that give the court jurisdiction, by a preponderance of the evidence. (Nobel Flora, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657.) “The burden must be met by competent evidence in affidavits and authenticated documents.” (Id. at 657-658.) Subject matter jurisdiction may be challenged at any time during the course of an action. The court may consider all admissible evidence before it in making its determination. (Great W. Casinos v. Morongo Band of Mission Indians (1999) 74 Cal. App. 4th 1407, 1418.)

Discussion

It is undisputed that CTUIR is “a Tribal governmental entity;” the operative pleading itself alleges as much and Plaintiff’s Opposition does not argue otherwise. (FAC ¶ 4.) Defendants have filed the declaration of Paul Rabb offering evidence supporting tribal immunity. (Declaration of Paul Rabb (“Rabb Decl.”) ¶¶ 1-8 (“the CTUIR is a Federally-recognized Indian Tribe” . . . and the First Food Policy Program receives funding from Department of Interior, as do the Executive Director Position held by David Tovey and the Natural Resources Department Director Position held by Eric Quaempts.)

Plaintiff makes various arguments as to why tribal immunity should not apply here.

The Court addresses each argument in turn below.

Plaintiff’s Argument That Tribal Immunity Does Not Apply To “Pre-Employment” Injuries

First, in the “Statement of Facts” section of her Opposition, Plaintiff argues that there were many pre-employment contacts between Plaintiff and Defendants, and in these contacts Defendants never “express[ed] that their sovereign authority or jurisdiction extends off-reservation to California, or over a person living and working in California who is reading the position description.” (Opp’n at 2.)
Plaintiff does not offer any authorities for the novel proposition that tribal immunity does not apply to suits arising from an employee’s “pre-employment” contacts with the Tribe. In Kiowa, the United States Supreme Court stated, “Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.” (523 U.S. at p. 760 [118 S. Ct. at p. 1705]. If negotiations leading to a contract were not immune, the exception would emasculate the immunity.

Likewise, Plaintiff does not offer any authorities for the proposition that the Tribe’s immunity (and the immunity of its officials working in the scope of their employment) turns on whether the Tribe gave the Plaintiff (its future employee) notice regarding its tribal immunity. This argument flies in the fact of the rule that waiver of tribal immunity cannot be implied. None of Plaintiff’s cited authorities involve facts turning upon a plaintiff’s lack of notice regarding tribal immunity. To the contrary, the governing authorities explain that tribal immunity applies given the sovereign status of the tribe ( see Trudgeon, 71 Cal.App.4th at 636-37), and that status remains a constant that does not depend on whether someone has “notice” of it.

Plaintiff has not persuaded the Court that because she alleges wrongs occurring prior to her formal employment with CTUIR, tribal immunity does not apply here and/or was waived by her “pre-employment” lack of notice as to such immunity.

Plaintiff’s Argument That CTUIR is Not Immune From Suit For “Off-Reservation, Criminal Conduct”

Plaintiff argues that she should be treated as a “tort victim, or other plaintiff who has not chosen to deal with a tribe [and now has] no alternative way to obtain relief for off-reservation commercial conduct” such that immunity should not apply. (Opp’n at 6 (citing Michigan v. Bay Mills Indian Community (2014) 134 S.Ct. 2024, 2036 n.8 (emphasis added) (noting, in dicta, that U.S. Supreme Court has never made any determination as to whether tribal immunity should apply under those circumstances).)

The Court is not persuaded. This is because Plaintiff’s pleading squarely alleges that she did choose to deal with a tribe, CTUIR, after seeing a job posting with CTUIR. This is not a case where Plaintiff sustained personal injuries while driving her car after suffering a collision with someone who just so happened to be a tribal official. While Plaintiff alleges that the CTUIR job posting for the FFPP Manager position was false and misleading regarding the position’s budget and staffing support, she does not allege that any false/misleading information meant she did not choose to deal with a tribe in pursuing that position.

Plaintiff also argues that CTUIR has not proven “absolute” sovereign immunity because CTUIR’s cited authorities “involve instances where” the underlying events “occur[] on or near tribal lands and/or where a party or non-Indian has chosen (without the presence of intentional fraud or criminal acts) to contract or commercially interact with a tribe.” (Opp’n at 5-6.)

The Court is not persuaded. Plaintiff fails to acknowledge authorities holding that tribal immunity can extend even to a tribe engaging in commercial enterprises that occur off of tribal lands. The Court need not “extend” the immunity analysis to a tribal commercial enterprise on the facts here. In this case, rather than the CTUIR’s engagement in a commercial enterprise like a gambling facility, the conduct at issue is in connection with CTUIR’s First Foods Program, which on the evidence before the Court, is a non-commercial tribal activity undisputedly encompassed by the tribe’s immunity, although it should be noted that the hiring of the plaintiff is clearly a “commercial” transaction. Plaintiff also concedes that “CTUIR is a government entity” and not a “for-profit commercial entity that deals in commercial activities off reservation.” (Opp’n at 5 (attempting to distinguish Defendants’ cited cases where a tribe’s immunity was extended to the tribe’s commercial enterprises, even though such extension is not necessary on the facts of this particular case where Plaintiff dealt directly with the tribe in its actions as a government entity).)

Plaintiff’s position that tribal immunity does not apply simply because the underlying events did not physically occur “on or near tribal lands” is not persuasive. Further, to the extent Plaintiff suggests that intentionally false representations about the position (and its funding/staffing) were made in her dealings with CTUIR, Quaempts, and Tovey, the Complaint does not allege that Defendants ever concealed their true identities or affiliations with CTUIR. Plaintiff has not alleged that she did not know she was dealing with a tribe or did not choose to deal with a tribe. At most, she alleges that nobody ever told her that CTUIR enjoys tribal immunity that would apply during her hiring process. As described above, however, Plaintiff has not presented authorities indicating that her lack of notice regarding tribal immunity means that such immunity does not exist or that it has been waived. Once again, “implied waiver”, even if such could be said to exist here, is insufficient.

Plaintiff also asserts that “this case is about off-reservation criminal conduct.” (Opp’n at 5.) The Court is not persuaded. This is a civil lawsuit, not a “criminal” action. Moreover, Plaintiff has not cited any authorities involving “criminal conduct” or “illegal conduct” alleged as against a tribe or its personnel upon facts similar to those alleged here, such that even if this Court were to assume arguendo that “criminal conduct” was potentially at issue, Plaintiff has not shown that this means that tribal immunity would not exist or has been waived. Plaintiff’s conclusory framing of Defendants’ conduct as “criminal” and “illegal” thus is not determinative.

Plaintiff cites repeatedly to Bay Mills, but in that decision the Supreme Court recognized that tribal immunity applied to bar a State from suing a tribe to enjoin allegedly-illegal gaming allegedly occurring on non-tribal lands. (Bay Mills, 134 S.Ct. at 2034-36 (statutory waiver of immunity codified at 25 U.S.C. § 2710(d)(7)(A)(ii) applied only to permit the State of Michigan to sue the tribe to enjoin gaming activity located on tribal lands).) The Supreme Court also noted that the State could instead resort to its criminal law to prosecute those engaging in illegal gambling on non-tribal lands. (Bay Mills, 134 S.Ct. at 2034-36.) The facts of Bay Mills are simply not analogous to this case. Moreover, the ultimate holding in Bay Mills was that tribal immunity barred Michigan’s lawsuit to enjoin alleged criminal conduct on non-tribal lands, which undercuts Plaintiff’s argument that allegations of allegedly “criminal” conduct can somehow take a case out of the “tribal immunity” framework.

Plaintiff’s Argument That CTUIR is Not Immune Because it “Ratified The Criminal Conduct” of Its Employees

Plaintiff argues that CTUIR has “ratified the illegal conduct of their tribal

employees.” (Opp’n at 6, 9-10.) Plaintiff also argues that Quaempts and Tovey violate the tribe’s own manual and the terms of its compacts with the federal government, such that CTUIR’s “ratification invalidates its claim to sovereign immunity and gives the state jurisdiction over all Defendants.” (Opp’n at 6, 9-10.) Yet Plaintiff offers no legal authorities addressing a tribe’s “ratification” of alleged conduct as grounds for finding a lack of tribal immunity and/or waiver of immunity. Plaintiff cites again to Bay Mills, but Bay Mills does not address a tribe’s “ratification” of criminal acts of its officials or employees as destroying or waiving tribal immunity. (Opp’n at 5-6, 9-10 (citing Bay Mills, 134 S.Ct. at 2034-35).) Plaintiff has not shown that evidence of “ratification” of alleged conduct by Quaempts and/or Tovey would have any bearing on application of tribal immunity.

Accordingly, Plaintiff has not persuaded the Court that CTUIR’s alleged ratification of conduct by Quaempts and/or Tovey bears on any issues of tribal immunity (or waiver thereof) currently before the Court.

Plaintiff’s Argument that CTUIR is Not Immune Because It “Expressly Waived” Sovereign Immunity” Given In “Over 50” Contacts With Plaintiff Wherein “CTUIR Purposely Did Not Assert Its Sovereign Immunity Over Plaintiff” (Opp’n at 10.)

Plaintiff’s sole citation to authority to support her “waiver” argument is the case of Luckerman v. Narragansett Indian Tribe (D.R.I. 2013) 965 F.Supp.2d 224, 228-29. (Opp’n at 10.) However, the facts of Luckerman are not analogous to the facts Plaintiff urge as supporting her “waiver” argument here. In Luckerman, an attorney sought to sue a tribe, a former client, for nonpayment, and the court considered whether an unsigned “proposed agreement” between the tribe and the attorney — which included an “unequivocal” written “waiver of immunity” provision — in fact effectuated an “express waiver” given that it was not actually signed by any representatives of the tribe. The court concluded that although a waiver of immunity cannot be implied, these unique facts sufficed for purposes of finding an express waiver because the tribe “treat [ed] the agreement as valid,” and “continued to accept” the attorney’s legal services in light of the unequivocal waiver provision, even though the tribe did not formally sign the agreement. (Id.) Here, unlike in Luckerman, there is no alleged express and unequivocal “waiver of immunity” provision in any agreement between Plaintiff and Defendants.

Thus, the Court is not persuaded. Plaintiff has not cited any authorities that would condition a tribe’s immunity on the tribe’s giving “notice” of that immunity to a potential plaintiff, or cases that otherwise required CTUIR to have given “notice” to Plaintiff regarding CTUIR’s tribal immunity in order for such immunity to exist.

To the extent Plaintiff intends to argue that CTUIR’s failure to give Plaintiff such notice somehow caused a “waiver” of CTUIR’s tribal immunity, the Court is not persuaded. A waiver of tribal immunity cannot be implied; rather, it must be expressed unequivocally. (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1182.)

Plaintiff’s Argument that “Quaempts and Tovey Are Not Immune From Suit as They Exceeded Their Scope of Authority”

Plaintiff argues that “tribal officials, Defendants Quaempts and Tovey, committed the crime of false advertising” in violation of CTUIR’s tribal manual (requiring tribal employees to perform their duties in compliance with the applicable laws and regulations) and in violation of the tribal compact. (Opp’n at 6.)

Plaintiff has not persuaded the Court that the alleged conduct by Quaempts and Tovey’s alleged conduct is the sort “outside the scope of authority” that might prevent extension of CTUIR’s tribal immunity to them as “tribal officials.”

American Indian tribes, tribal entities, and tribal officers and agents acting within the scope of their authority are immune from suit in state court absent congressional authorization to sue or the tribe’s express, clear waiver of its sovereign immunity. ( Ameriloan v. Superior Court (2008) 19 Cal.App.4th 81, 84, 89, 94; Great Western Casinos v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1421.)

Indeed, “It is settled that tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority. [Citation.] This immunity applies to officials sued in their individual capacities.” (Trudgeon, 71 Cal.App.4th at 643-44 (internal citations and quotation marks omitted).) “[A]n agent of an immune sovereign may be held liable for an act which exceeds his or her authority. [Citation.] But the commission of a tort is not per se an act in excess of authority. [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.] Where the plaintiff alleges no viable claim that tribal officials acted outside their authority, immunity applies.” (Id. (internal citations and quotation marks omitted).) The appellate court in Trudgeon reasoned that the trial court correctly found that tribal immunity extended to the defendant tribal officials, given that the plaintiff’s pleading alleged that at all times “each of the Defendants was the agent and employee of each of the remaining Defendants and in doing the things hereinafter alleged, was acting within the scope of such agency and employment.” (Id. at 644 (emphasis in Trudgeon).) The appellate court further held that on the plaintiff’s theory of liability, the defendants negligently failed to provide adequate security to protect patrons in the casino — such that whether tribal officials adequately secured the casino was necessarily “directly related to their performance of their official duties.” (Id.) The Court concluded, “any failure to provide adequate security therefore was an act within the official authority of those individuals and, as such, was subject to immunity.” (Id.)

The analysis in Trudgeon is analogous. While the allegations in Plaintiff’s FAC assert

that Quaempts and Tovey at times exceeded their authority and/or acted outside the scope of their authority (FAC ¶ 13 (every Defendant is an “agent, employee, partner and/or representative of one or more of the remaining Defendants and was acting within the course of such relationship at the time of the events described herein, although some of the acts alleged were beyond the scope of authority of said employment”)), the Court does not find that this renders Trudgeon inapplicable here. Indeed, Quaempts’ and Tovey’s allegedly criminal “false advertising” misrepresentations regarding the funding and staffing attached to the FFPP Manager position ultimately filled by Plaintiff, and any retaliation or adverse employment actions against Plaintiff carried out by Quaempts and Tovey, necessarily occurred when those individuals were acting in their roles as tribal officials and as Plaintiff’s supervisors. As such, as in Trudgeon, even if these two tribal officials engaged in false representations or other misconduct when hiring and supervising Plaintiff, the specific misconduct alleged here was all necessarily “directly related to their performance of their official duties” as Plaintiff’s supervisors and “as such, was subject to immunity.” (See Trudgeon, 71 Cal.App.4th at 644.)

The Court is not persuaded by Plaintiff’s undeveloped argument based on Turner v. Martire (2000) 82 Cal.App.4th 1042, 1055. (Opp’n at 6.) Aside from a block quote from that case, Plaintiff did not discuss the facts of that case or meaningfully analogize to it. In any event, Turner does not require denial of the instant motion to quash. In Turner, tribal law enforcement officers were alleged to have assaulted the plaintiffs, in part out of political motivations. (Turner, 82 Cal.App.4th at 1055.) The appellate court found that the allegation “at least raises a factual issue whether defendants acted for the benefit of the tribe or merely for personal reasons.” (Id.) Here, on the other hand, the FAC alleged that the tribe ratified and approved the very conduct Plaintiff contends was outside the scope of Quaempts’ and Tovey’s duties. There are no factual allegations in the FAC asserting that such alleged conduct (making misrepresentations in hiring and supervising Plaintiff) would have been strictly “personal” to Quaempts and Tovey, i.e., not “for the benefit of the tribe” in the course of seeking to fill a tribal position. Moreover, as Defendants note (Reply at 5), here Plaintiff has argued and alleged that CTUIR ratified the alleged conduct of Quaempts and Tovey, including the allegedly false advertising regarding the position. As such, having alleged tribal ratification of such conduct, Plaintiff cannot simultaneously argue that Quaempts and Tovey were acting outside the scope of their official duties when making such alleged misrepresentations. Plaintiff has not shown that the FAC pleads facts that, even if true, could lead to a determination that Quaempts and Tovey acted outside the scope of their authority for purposes of the analysis here.

Plaintiff argues that tribal immunity does not apply here given the case of Lewis, et. al v. Clarke (2017) 137 S.Ct. 1285. (Opp’n at 8.) In that case, U.S. Supreme Court held that the sovereign immunity of an Indian tribe did not preclude a negligence action against a tribal employee for causing vehicle collision while acting within scope of employment, because the action was brought against employee in his individual rather than official capacity and any state-court judgment against employee would not operate against the tribe. (Id. at 1289.) Here, on the other hand, Plaintiff brings this action against Quaempts and Tovey in their official capacities, and also names the tribe itself as a Defendant in this case. Although the caption of the FAC names Quaempts and Tovey each as “an individual” and also names the tribe itself, in substance the factual allegations in the FAC all pertain to Quaempts’ and Toveys’ conduct in recruiting, hiring, and supervising Plaintiff – acts done in their roles as tribal employees. Moreover, pursuant to Lewis, in determining whether tribal immunity

should apply, “courts should look to whether the sovereign is the real party in interest” in the action, as opposed to the individual. (Id. at 1291-92.) “In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign.” (Id. at 1291.) “Lawsuits brought against employees in their official capacity represent only another way of pleading an action against an entity of which an officer is an agent,” and they may also be barred by sovereign immunity.” (Id. at 1291-92 (quotation marks omitted).) In Lewis, the Court concluded that while the suit was “brought against a tribal employee operating a vehicle within the scope of his employment,” because “the judgment will not operate against the Tribe,” the action was “not a suit against Clarke in his official capacity” but was “simply a suit against Clarke to recover for his personal actions, which will not require action by the sovereign or disturb the sovereign’s property.” (Id. at 1292-93 (quotation marks omitted).) The Court held that Clarke, the tribal employee, could not assert tribal immunity as a result. Here, Plaintiff has not shown that this action is analogous. In this particular action, the judgment would operate against the tribe because the tribe is a named Defendant, and also given Plaintiff’s theory of liability based on the tribe’s “ratification” of misconduct by Quaempts and Tovey. Plaintiff has not persuaded the Court that Lewis applies here.

Ultimately, Plaintiff has not met her burden of presenting authorities and evidence to persuade the Court that Defendants Quaempts and Tovey engaged in the sort of conduct “outside the scope” of their official supervisory duties such that the tribe’s immunity does not extend to them as tribal officials.

Federal Tort Claims Act

Plaintiff also has not shown that the Federal Tort Claims Act (“FTCA”) does not apply. (P&As at 10-11 (arguing that pursuing claims under the FTCA is Plaintiff’s exclusive remedy, given that “[u]nder the 1990 amendments to the Indian Self-Determination Act, Congress extended FTCA coverage to tribes and tribal employees for claims ‘resulting from the performance of functions’ under an Indian Self-Determination contract, grant agreement, or cooperative agreement”).) Defendants assert that Public Law 101-512 § 314 provides that any “civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor, or tribal employee covered by this section, shall be deemed an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act.” The FTCA provides the exclusive remedy available to any tort claim against the United States, as well as a tribe or tribal employee acting within the scope of an Indian Self-Determination Act contract. (28 U.S.C. § 2679, 25 CFR § 900.204.)

Plaintiff argues that the FTCA does not apply to her because Plaintiff’s claims involve alleged intentional misrepresentations and deceit outside the scope of the FTCA. (Opp’n at 10-11 (citing intentional torts exception codified at 28 U.S.C. § 2680(h) and arguing that “[a]ny claim arising out of …misrepresentation, deceit, or interference with contract rights” is excluded from the provisions of the FTCA)). Plaintiff argues that Quaempts and Tovey were not acting within the scope of their employment, such that the FTCA does not apply. (Opp’n at 10-11.)

Plaintiff has not persuaded the Court that the FTCA does not apply here. Plaintiff’s pleading alleges negligence and other non-intentional torts that would fall within the

scope of the FTCA. Also, as discussed elsewhere herein, Plaintiff has alleged tribal ratification of the misconduct she ascribes to Quaempts and Tovey; as noted, above, Plaintiff cannot simultaneously assert that Quaempts and Tovey were acting outside the scope of their official duties when making such alleged misrepresentations. Plaintiff has not shown that the FAC pleads facts that, even if true, could lead to a determination that Quaempts and Tovey acted outside the scope of their authority for purposes of the analysis here.

Claims Exhaustion

Plaintiff argues that she was not required to exhaust her claims under the CTUIR’s Tribal Personnel Policies Manual (“TPPM”) or in tribal court pursuant to the tribe’s “Tort Claims Code” (“TCC”). (Declaration of Daniel Hester (“Hester Decl.”) ¶¶ 1-10; Exh. 2 to Hester Decl.) Plaintiff conclusorily argues, without citation to authority, that the TPPM “only applies to employees of CTUIR,” and that many of the wrongs she alleges occurred when Defendants were attempting to entice Plaintiff to fill the FFPP Manager position, such that they occurred before she was a CTUIR employee. (Opp’n at 11.)

The Court is not persuaded. Plaintiff’s lawsuit is also premised on post-employment conduct Plaintiff alleges she suffered, such as retaliation after she complained that the position was receiving neither the funding nor the staffing she alleges she had been promised before becoming a CTUIR employee. Plaintiff assumes that her action can be severed along pre-employment and post-employment lines — but she was undisputedly a CTUIR employee subject to the TPPM and TCC when suing her employer and her supervisors and making allegations regarding the terms of her employment and the adverse actions she suffered.

Plaintiff’s FAC does not allege formal causes of action for employment-torts like “retaliation” discrimination or harassment. Plaintiff has not cited any on-point authorities or otherwise persuaded the Court that pleading around formal employment-law causes of action somehow takes her claims out of the scope of the TPPM and/or the TCC. (Opp’n at 11-12.) On the facts alleged in this particular case, Plaintiff’s status as a CTUIR employee is central to her claims in connection with her FFPP Manager position, despite her arguments that she makes only “pre-employment” claims in this case.

Indeed, it is undisputed that Plaintiff was a CTUIR employee (FFPP Manager), and as a CTUIR employee seeking to sue her employer in connection with the terms of her employment and representations made about her position (FFPP Manager), Plaintiff has not shown that the TPPM and TCC do not apply to her. Plaintiff has not compellingly argued that the TPPM’s remedies — and the obligation to exhaust them — vanish simply because an employee’s case is partially based on alleged “pre-employment” misrepresentations.

Plaintiff has not met her burden of proving claims exhaustion.

Summary

Because the Court agrees with Defendants that immunity applies and this Court lacks jurisdiction over this case, the Court need not and does not reach any remaining arguments in the moving papers not separately addressed herein.

Ultimately, Plaintiff has not shown the absence of tribal immunity or that tribal immunity has been waived on the facts, evidence and legal arguments/authorities currently before the Court. Plaintiff also has not shown that she fully exhausted her claims before filing this state court action. As a result, the Court lacks jurisdiction to adjudicate this case.

Accordingly, the Court GRANTS the instant Motion to Quash/Dismiss in its entirety.