2018-00236829-CU-PO

James Acres vs. Lester Marston

Nature of Proceeding: Motion for Sanctions (James Acres)

Filed By: Eisenberg, Alyssa L.

Plaintiff James Acres motion for sanctions pursuant to CCP § 128.7 is denied.

Plaintiff seeks sanctions against all of the various Defendants as a result of their multiple motions to strike pursuant to CCP § 425.16 and certain Defendants’ motion to strike pursuant to Civil Code § 1714.10.

The Boutin Jones’ Inc., et al.’s joinder in the other Defendant groups’ oppositions is granted.

An attorney who files a pleading with the court certifies that the pleading has merit “to the best of the [attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.” (CCP § 128.7(b).) The attorney certifies that “[t]he allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” (CCP § 128.7(b)(3).) The certification is measure under an objective standard. “A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it[ is totally and completely without merit.’’ (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440 [citations omitted]. Violation of this standard subjects and attorney to sanctions which are sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. (CCP § 128.7(b)(3).) Sanctions are warranted by “signing, filing, submitting, or later advocating” a meritless pleading. (CCP § 128.7(b).) Sanctions are warranted only if the moving party meets its burden of proving that the opposing party’s action or tactic was totally and completely without merit, measured by the objective “reasonable attorney” standard, or motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. (See Weisman v. Bower (1987) 193 Cal. App.3d 1231, 1236.) Sanctions should be awarded only in the clearest of cases, to penalize the most egregious misconduct. (See Optical Surplus, Inc. v. Superior Court (1991) 228 Cal. App. 3d 776, 784.)

“Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous. Courts must carefully consider the circumstances before awarding sanctions.” (Peake, supra, 227 Cal.App.4th at 448.) Section 128.7 “must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously. Forceful representation often requires that an attorney attempt to read a case or an agreement in an innovative though sensible way. Our law is constantly evolving, and effective representation sometimes compels attorneys to take the lead in that evolution.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167-168.)

The motion must be denied. Plaintiff’s arguments as to why the subject motions are frivolous are essentially premised on the arguments he raised in opposition to the special motions to strike pursuant to CCP § 425.16 and the motion to strike pursuant to Civil Code § 1714.10. Those motions were mooted by the fact that the Court granted the Defendants’ motions to quash. In any event, as can be seen from the Court’s extensive rulings on the motions to quash the issues involved in this action are complex. The Court will not undertake an exhaustive analysis of the numerous issues raised in the motions to strike other than to say that the arguments raised by Defendants in support of the motions were not frivolous. Under no circumstances could the Court find that the Defendants’ various motions were objectively unreasonable. Again the subject conduct must be measured by an objective standard and “[a] claim is objectively unreasonable if ‘any reasonable attorney would agree that [it[ is totally and completely without merit.’’ (Peake, supra, 227 Cal.App.4th at 440 [citations omitted].) This is not the case here.

The motion is denied in its entirety.

Given the above, the Court need not rule on the objections to Plaintiff’s declaration.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.

Item 10 2018-00236829-CU-PO

James Acres vs. Lester Marston

Nature of Proceeding: Motion to Quash and/or Dismiss (Janssen Malloy LLP) — Joinder

Filed By: Smith, Howard

Defendants Janssen Malloy LLP, Megan Yarnall and Amelia Burroughs move to quash or dismiss the Verified Complaint of Plaintiff James Acres (“Acres”) upon the general ground that the Court lacks subject matter jurisdiction based on tribal sovereign immunity. The Janssen Malloy defendants contend that Acres’ allegations establish they were acting solely as legal counsel for a federally recognized indian tribe in a Tribal Court action. Thus, moving defendants argue they are entitled to the protections of the tribe’s sovereign immunity in this action.

Defendants Boutin Jones Inc., Michael Chase, Daniel Stouder, and Amy O’Neill have filed a timely joinder in the Janssen Malloy motion, contending that their interests are

identical to the interests of the Janssen Malloy defendants because they too were acting solely as legal counsel for the same indian tribe in the same Tribal Court action and are entitled to the same protections of the tribe’s sovereign immunity in this action. The joinder is granted.

The motions to quash/dismiss for lack of subject matter jurisdiction premised upon tribal sovereign immunity are GRANTED. The Court notes that the technical ground for the motion may be lack of personal jurisdiction as noted in People v. Miami Nation Enterprises (2016) 2 Cal. 5th 222, 243. However, the differential grounds for the motion do not affect the result.

The core questions of law presented by these motions are whether attorneys who represent a recognized indian tribe in a civil action prosecuted in a Tribal Court are cloaked with the tribe’s sovereign immunity as against a resulting action in California state court alleging: (1) malicious prosecution of the civil action in the Tribal Court; and/or (2) aiding and abetting the Tribal Court judge’s alleged breach of a fiduciary duty owed to an opposing party in the Tribal Court civil action.

This Court finds that the tribe’s attorneys are entitled to the same sovereign immunity that would protect the tribe in the state court action, or a relative of sovereign immunity referred to as prosecutorial immunity.

The parties do not dispute that these issues are properly presented to the court by way of motion to quash and or dismiss. (Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1144; Great W. Casinos, Inc v. Morongo Band of Mission Indians (1999) 74 Cal.App.4 th 1407, 1414.) There is no dispute that the Blue Lake Rancheria is a federally recognized indian tribe entitled to sovereign immunity. The United States Supreme Court has long “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 [171 L.Ed.2d 457, 471].) Indeed, the high court has recognized that tribal sovereign immunity extends to entities beyond the tribe itself. (Inyo County v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony (2003) 538 U.S. 701, 705, fn. 1.) Sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation.’ ” ( Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1182.) “Rather, it presents a pure jurisdictional question.” (Ibid.)

The parties’ burdens upon the motion are not disputed. “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.” … ’ … [W]hen 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 unverified complaint are inadequate.” (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1204.) The lack of jurisdiction can be shown through the plaintiff’s own pleadings. (

Trudgeon v. Fantasy Springs Casino (1999) 71 Cal.App.4th 632, 644; Brown, supra, at p. 1203-1205.)

This motion requires a lengthy summarization of the allegations of Acres’ complaint, and the alleged roles of the moving defendants in relation to those allegations.

This tort action arises from a previous civil case filed by the Blue Lake Casino & Hotel (a tribally owned entity of Blue Lake Rancheria, a federally recognized Indian tribe) against Acres Bonusing, Inc. (“ABI”), and Plaintiff James Acres (“Acres”).

The prior civil case was filed in the Blue Lake Rancheria Tribal Court – Case Number C -15-1215IJM. That Tribal Court case (“Blue Lake v. Acres”) alleged four causes of action against ABI (breach of contract, tortious breach of the implied covenant of good faith and fair dealing, unjust enrichment, and money had and received). The case alleged one cause of action against Acres (fraudulent inducement).

The Blue Lake v. Acres Tribal Court action arose from a contract between Blue Lake Casino & Hotel and ABI related to ABI’s development, service and maintenance of online gambling software referred to as the iSlot System. Acres alleges that he was not a party to the iSlot Agreement at issue in Blue Lake v. Acres. (Complaint “Com.” ¶49.)

Acres alleges in this action that The Blue Lake Rancheria (“Tribe”) is a federally recognized Indian Tribe in Humboldt County, California, and is organized under the Constitution of the Blue Lake Rancheria. Tribe comprises approximately sixty members and approximately ninety acres of land. (Com. ¶8.) Tribe is not named in the present action.

Under Tribe’s constitution, the Blue Lake Business Council is the executive political arm of the Tribe. The Blue Lake Business Council is not currently named as a Defendant to this action. (Com. ¶9.)

The Tribal Court of the Blue Lake Rancheria (“Tribal Court”) was established by the Blue Lake Business Council through its enactment of Ordinance No. 07-01, and under “its inherent sovereign authority to establish and operate its own judicial system.” The Blue Lake Tribal Court is not currently named as a Defendant to this action. (Com. ¶10.)

The Blue Lake Casino & Hotel (“Blue Lake Casino”) is an economic enterprise owned and operated by Tribe. According to a gaming ordinance enacted by the Blue Lake Business Council, profits from gaming at the casino are deposited directly into Tribe’s general treasury. Blue Lake Casino was the plaintiff of the alleged wrongful civil proceeding against Mr. Acres in the Blue Lake Tribal Court. However, Blue Lake Casino is also not currently named as a Defendant to this action. (Com. ¶11.)

The named defendants in the present action were not parties to the Blue Lake v. Acres action. Instead, they are alleged to have had some other collateral involvement in the prosecution of Blue Lake v. Acres against Acres in the Tribal Court. The alleged

involvement of the many defendants, including the moving defendants, is important to analyze the immunity question raised in this motion.

Lester Marston (“Judge Marston”) is alleged to have served as the Chief Judge of Blue Lake Tribal Court, and originally presided over Blue Lake v. Acres in the Tribal Court. (Com. ¶15.)

Arla Ramsey (“Ramsey”) is alleged to have been the CEO of Blue Lake Casino during Blue Lake v. Acres. Ms. Ramsey also served as Blue Lake’s Tribal Administrator, as a judge of Blue Lake’s Tribal Court, and as the vice-chair of Blue Lake Business Council. In her role as Tribal Administrator, Ms. Ramsey was responsible for the day to day business affairs of the Tribal Government, and supervised the work of Clerk Anita Huff. (Com. ¶12.)

Anita Huff (“Huff”) is alleged to have been the Clerk of the Blue Lake Tribal Court during Blue Lake v. Acres. While acting as Tribal Court Clerk, Clerk Huff was also employed by Tribe in various other roles, like “Grants and Contracts Manager.” (Com. ¶14.) During Blue Lake v. Acres, most of the orders issued by Blue Lake Tribal Court were served on the parties by Clerk Huff. (Com. ¶120.)

Thomas Frank (“Frank”) is alleged to have held various executive roles for Tribe over the past 15 years, including as a Blue Lake Casino executive (until 2009) and as Director of Business Development for Tribe (from 2010 until at least 2015). (Com. ¶13.) During Blue Lake v. Acres, Frank verified Blue Lake Casino’s discovery responses to Mr. Acres, and made several sworn declarations in the action. (Com. ¶119.)

David Rapport (“Rapport”) allegedly provided attorney services to Tribe in partnership with Judge Marston. Rapport has done so since at least 1983. (Com. ¶17.)

Rapport & Marston is alleged to be a law firm consisting of Judge Marston and Rapport. (Com. ¶16.) This is repeatedly disputed in their motion papers.

Darcy Vaughn (Vaughn) is alleged to be an associate judge of the Blue Lake Tribal Court, and a licensed California attorney associated with Rapport and Marston. (Com. ¶20.) Vaughn performed legal services for Tribe, and also provided legal service to Judge Marston in his role as judge in Blue Lake v. Acres. (Com. ¶123.)

Ashley Burrell (Burrell) is alleged to be an associate judge of the Blue Lake Tribal Court, and a licensed California attorney associated with Rapport and Marston. (Com. ¶18.) Burrell performed legal services for Tribe, and also provided legal service to Judge Marston in his role as judge in Blue Lake v. Acres. (Com. ¶122.)

Cooper DeMarse (DeMarse) is alleged to be an associate judge of the Blue Lake Tribal Court, and a licensed California attorney associated with Rapport and Marston. (Com. ¶19.) DeMarse performed legal services for Tribe, and also provided legal service to Judge Marston in his role as judge in Blue Lake v. Acres. (Com. ¶125.)

Kostan Lathouris (Lathouris) is alleged to be an attorney licensed in Nevada and

associated with Rapport and Marston. (Com. ¶21.) Lathouris performed legal services for Tribe, and also provided legal service to Judge Marston in his role as judge in Blue Lake v. Acres. (Com. ¶ 124.)

Boutin Jones Inc. (“Boutin”) is a law firm located in Sacramento, California. Boutin attorneys filed the initial complaint in Blue Lake v. Acres and prosecuted the case for over a year against Acres. Boutin also represented Blue Lake Casino in other federal actions initiated by Mr. Acres in which he sought to enjoin Blue Lake v. Acres. (Com. ¶22.)

Michael Chase (“Chase”) is alleged to be Vice-President and a shareholder attorney at Boutin. It is alleged that Chase personally appeared on behalf of Blue Lake Casino in the two federal actions commenced by Acres in his effort to enjoin Blue Lake v. Acres. Acres refers to these federal actions as Acres v. Blue Lake I and Acres v. Blue Lake II. (Com. ¶23.)

Daniel Stouder (Stouder) is alleged to be Vice-President and a shareholder attorney at Boutin. Stouder was an attorney of record representing Blue Lake Casino in Blue Lake v. Acres, and Acres v. Blue Lake l and II, and personally appeared in federal court on Blue Lake Casino’s behalf in Acres v. Blue Lake II. (Com. ¶24.)

Amy O’Neill (O’Neill) is alleged to have been an attorney at Boutin, and was an attorney of record representing Blue Lake Casino in Blue Lake v. Acres. It is alleged that she personally appeared in Blue Lake Tribal Court on Blue Lake Casino’s behalf. O’Neill was also an attorney of record for Blue Lake Casino in Acres v. Blue Lake I and Acres v. Blue Lake II. (Com. ¶25.)

Janssen Malloy LLP (“Janssen Malloy”) is alleged to be a law firm located in Humboldt County, California. In February of 2017, it is alleged that Janssen Malloy replaced Boutin as attorneys representing Blue Lake Casino in Blue Lake v. Acres and Acres v. Blue Lake II. (Com. ¶26.)

Megan Yarnall (Yarnall) is alleged to be a partner at Janssen Malloy. She was an attorney of record for Blue Lake Casino in both Blue Lake v. Acres and in Acres v. Blue Lake II, and personally appeared on behalf of Blue Lake Casino in both actions. (Com. ¶27.)

Amelia Burroughs (Burroughs) is alleged to be an attorney (and perhaps partner) at Janssen Malloy, and attorney of record for Blue Lake Casino in Blue Lake v. Acres. (Com. ¶28.)

The Court need not recite at length here the detailed gravamen of Acres’ complaints about Judge Marston’s alleged disqualifying conflicts of interest in serving as the trial judge in Blue Lake v. Acres while also serving as the Tribe’s lawyer in other legal matters. It will suffice to summarize Acres’ position that Judge Marston had several disqualifying conflicts and connections with Tribe while he acted as judge in Tribe’s lawsuit against Acres in Blue Lake v. Acres. Acres also alleges that Judge Marston had improper connections with the attorneys representing, or associated with the

attorneys representing, Blue Lake Casino in Blue Lake v. Acres. And, Acres alleges that the cause of action prosecuted by Blue Lake Casino against him for fraudulent inducement in Blue Lake v. Acres was prosecuted without probable cause and with malice, and that the ultimate decision in Blue Lake v. Acres in his favor bears that out.

Acres alleges that the conflicting interests between Judge Marston, the Tribe, and the attorney defendants was “part of a pattern of despicable behavior, rife with malice, oppression and fraud in which [Tribe], its entities, and agents, wrongfully each used civil proceedings in Blue Lake Tribal Court for their own individual benefit,” which “was continuous from at least January 2013 until at least December 2016.” (Com. ¶ 129.)

In light of the foregoing, Acres’ Verified Complaint states seven separately pled causes of action:

First Cause of Action [Wrongful Use of Civil Proceedings (“Malicious Prosecution”)] Ramsey, Frank, Boutin, Janssen Malloy, and defendant attorneys Stouder, O’Neill, Burroughs and Yarnell committed the tort of malicious prosecution by filing and prosecuting the Tribal Court action Blue Lake v. Acres against Acres.

Second Cause of Action [Aiding and Abetting Malicious Prosecution] Judge Marston, Clerk Huff, and attorneys Rapport, Rapport & Marston, DeMarse, Vaughn, Burrell, Lathouris, and Chase aided and abetted the commission of the tort of malicious prosecution against Acres.

Third Cause of Action [Conspiracy to Commit Malicious Prosecution] Rapport & Marston, Judge Marston, David Rapport, Clerk Huff, and defendant attorneys Burrell, Demarse, Vaughn, Lathouris and Chase conspired with Ramsey, Frank, Boutin, Janssen Malloy, Stouder, O’Neill, Burroughs and Yarnell to commit the tort of malicious prosecution by filing and prosecuting the Tribal Court action Blue Lake v. Acres against Acres. (Com.¶ 153.)

Fourth Cause of Action [Breach of Fiduciary Duty] Judge Marston had and breached a fiduciary duty to Acres by failing to disclose Judge Marston’s performance of legal work for the Tribe in other matters while sitting as Tribal Judge, and a duty to recuse himself from presiding over Blue Lake v. Acres sooner than he did.

Fifth Cause of Action [Aiding and Abetting Breach of Fiduciary Duty] Judge Marston, Ramsey, Frank, Clerk Huff, Rapport & Marston, Boutin, Rapport, Burrell, DeMarse, Vaughn, Lathouris, Chase, Stouder and O’Neill, aided and abetted Judge Marston’s alleged breach of his alleged fiduciary duty to Acres by assisting and encouraging Judge Marston’s alleged breach of his alleged fiduciary duty to Acres.

Sixth Cause of Action [Constructive Fraud] Judge Marston committed constructive fraud against Acres by failing to disclose that Judge Marston had received compensation from the Tribe for legal work unrelated to Acres that Judge Marston performed in a capacity other than as the Tribal Court Judge.

Seventh Cause of Action [Aiding and Abetting Constructive Fraud] Ramsey, Frank,

Clerk Huff, Rapport & Marston, Rapport, Burrell, DeMarse, Vaughn, Lathouris, Boutin, Chase, Stouder, and O’Neill aided and abetted Judge Marston’s alleged commission of constructive fraud against Acres.

Thus, Janssen Malloy, Yarnall and Burroughs are named only in the First Cause of Action (Malicious Prosecution).

Boutin, Daniel Stouder, and Amy O’Neill are named in the First Cause of Action (Malicious Prosecution), Fifth Cause of Action (Aiding and Abetting Judge Marston’s Breach of Fiduciary Duty), and Seventh Cause of Action (Aiding and Abetting Judge Marston’s Constructive Fraud).

Chase is individually named in the Second Cause of Action (Aiding and Abetting Malicious Prosecution), Third Cause of Action (Conspiracy to Commit Malicious Prosecution), Fifth Cause of Action (Aiding and Abetting Judge Marston’s Breach of Fiduciary Duty), and Seventh Cause of Action (Aiding and Abetting Judge Marston’s Constructive Fraud).

It is important to note that Acres only alleges that the Blue Lake v. Acres action was maliciously prosecuted against him, and is the sole basis of the First, Second and Third Causes of Action. (Com. ¶¶ 132, 133, 134, 135.) The Court makes this initial observation to distinguish the attorneys’ alleged conduct and actions in Blue Lake v. Acres from any acts they may have performed in defending the Tribe in Acres’ subsequent federal actions. Thus, as to the malicious prosecution and vicarious fiduciary claims, the moving defendants’ conduct was contained to providing legal representation to Blue Lake Casino in prosecuting the fraud action in the Tribal Court against Acres in Blue Lake v. Acres.

The parties’ core dispute is whether, in committing the alleged tortious conduct, the Tribe’s attorneys were functioning as the Tribe’s officers or agents in a manner implicating the Tribe’s sovereignty, or instead the defendant attorneys acted merely as the Tribe’s employees engaged in essentially personal pursuits for their own personal benefit not involving the Tribe’s sovereignty.

On this key issue, the parties cite Great W. Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407; Trudgeon v. Fantasy Springs Casino, supra, 71 Cal.App.4th 632, 643; Brown v. Garcia (2017) 17 Cal.App.5th 1198; Lewis v. Clarke 137 S. Ct. 1285 (2017); and People ex rel. Owen v. Miami Nations Enterprises (2016) 2 Cal. 5th 222. They also discuss two federal court opinions J.W. Gaming Dew, LLC v. James (N.D. Cal. Oct. 5, 2018) Case No. 3:18-cv-02669-WHO and Williams & Cochrane v. Quechan Tribe of the Fort Yuma Indian Reservation (S.D. Cal. Jun. 7, 2018) Case No. 3:17-cv- 01436-GPC-MDD.

As the moving defendants note, J.W. Gaming has been appealed to the Ninth Circuit, so this court has not considered that opinion in its analysis. Nevertheless, the court’s brief review of the facts in that case did not reveal that the tribe’s attorneys were defendants or that the district court considered whether the tribe’s attorneys were

entitled to tribal sovereign immunity as represented by Acres’ argument.

The Court’s review of the remaining cited authorities and other cases discussed below persuades it that the moving defendant attorneys are entitled to the Tribe’s sovereign immunity or an extension of that immunity, with respect to the torts alleged against them in this action.

The clear starting point is the United States Supreme Court’s fairly recent opinion in Lewis v. Clarke, 581 U.S. __, 137 S. Ct. 1285, 197 L.Ed.2d 631 (2017). In that case, a tribal employee was sued for negligence when he allegedly caused a motor-vehicle accident on an interstate highway not on tribal lands. (137 S. Ct. at 1291.) The employee was shuttling customers for the tribe. The tribe argued that sovereign immunity barred the suit because the driver was a tribal employee driving on tribal business and because the tribe’s decision to indemnify its employees meant that a judgment would affect the tribe’s finances. (Id.) The United States Supreme Court disagreed holding that a tribal employee sued in his personal capacity, based on his personal actions not occurring on tribal property, could not invoke sovereign immunity – even when acting in the scope of his employment. (Id.) The Court found that the particular suit would “not require action by the sovereign or disturb the sovereign’s property,” even if the tribe chose to indemnify the employee. (Id.)

Lewis addressed in part whether the sovereign immunity of an Indian tribe bars “individual-capacity damages” against tribal employees for torts committed by them within the scope of their employment.

Justice Sotomayor’s short analysis of this question starts with a tangential observation that the Court’s prior cases on sovereign immunity establish that courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars a suit against state and federal employees or entities. (137 S.Ct. at 1291.) Lewis indicated that a court should not extend sovereign immunity for tribal employees beyond what common-law sovereign immunity principles would recognize for either state or federal employees. (Id. at 1293.)

The distinction between individual- and official-capacity suits thus was the paramount question in the Lewis analysis bounded by general rules of the scope of analogous sovereign immunity exercised by state and federal entities. “The identity of the real party in interest dictates what immunities may be available. Defendants in an official-capacity action may assert sovereign immunity.” (137 S. Ct. at 1292.) “An officer in an individual-capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for example, absolute prosecutorial immunity in certain circumstances. But sovereign immunity ‘does not erect a barrier against suits to impose individual and personal liability.’” (137 S. Ct. at 1292.)

Lewis observed that “[i]n an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself.” (137 S. Ct. at 1292) In comparison, “Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under

color of state law.” (Id.)

Acknowledging the analogous “general rules” of state and federal sovereign immunity, and the operative distinction between “personal capacity claims” and “official capacity claims,” Lewis then turned to the facts of the negligence action before it. The Court found the case to be “a negligence action arising from a tort committed by [the employee] on an interstate highway within the State of Connecticut. The suit [was] brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgment [would] not operate against the Tribe.” Based upon those specific facts, Lewis found that the suit was not against the employee in his official capacity. To the contrary, Lewis held that the case was simply a suit against the employee to recover for his personal actions, which would not require action by the sovereign or disturb the sovereign’s property.

There are obvious distinctions between the negligence case against the driver in Lewis and the malicious prosecution action stated here against the Janssen and Boutin defendants. First, the alleged tort in Lewis occurred entirely on state land in pursuit of the tribe’s commercial activities, while the malicious prosecution claim here occurred entirely on tribal land within the context of a Tribal Court judicial proceeding. Second, the tribe’s driver in Lewis did not claim to be an “official” of the tribe acting as the tribe’s necessary fiduciary agent, while the Tribe’s attorneys in this matter were the official fiduciary representatives of the Tribe in the Tribal Court. Third, the negligence action against the driver in Lewis would not be expected to require the appearance of the Tribe (or tribal officials) as witnesses or necessary parties in the action, while the malicious prosecution claim would most likely require action by the Tribe in the lawsuit and could involve efforts to invade the privileged interactions between the Tribe and its legal counsel regarding the decision-making process underlying the prosecution of Acres in the Tribal Court.

But these obvious distinctions do not clearly dictate a finding that Acres’ malicious prosecution and vicarious tort claims constitute “official-capacity claims” or are instead “personal-capacity suits” under the brief analysis in Lewis.

Lewis looked to the general rules of state and federal governmental immunity to guide the Court’s consideration of the appropriate scope of tribal sovereign immunity and to assess whether the claim was official or personal. In that respect, this court has also considered the appropriate and available scope of sovereign immunity in California relating to similar tort claims.

Specifically, and analogously, Government Code section 821.6 provides a broad immunity “for injury caused by [a public employee] instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” The statute “is given an ‘expansive interpretation’ in order to best further the rationale of the immunity, that is, to allow the free exercise of the prosecutor’s discretion and to protect public officers from harassment in the performance of their duties. [Citations.]” (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292.) It extends not merely to the institution of proceedings, but to

“[a]cts taken during an investigation prior to the institution of a judicial proceeding . . . .” (County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 229.) If the public employee is immune, the public entity by which he or she was employed is likewise immune, unless otherwise provided by statute. (Gov. Code, § 815.2, subd.

(b).) In short, the State of California enjoys sovereignty immunity from malicious prosecution claims because its officers and attorneys are statutorily entitled to such immunity.

In addition to the malicious prosecution claim, Acres also alleges that some of the moving defendants committed other torts by conspiring with or aiding Judge Marston to breach a fiduciary duty owed by him to Acres in the Tribal Court action. These claims implicate other related immunities that emanate from sovereign immunity — namely judicial immunity and quasi-judicial immunity. “It is well established judges are granted immunity from civil suit in the exercise of their judicial functions. (Frost v. Geernaert (1988) 200 Cal. App. 3d 1104, 1107-1108, citing Tagliavia v. County of Los Angeles (1980) 112 Cal. App. 3d 759, 761; Oppenheimer v. Ashburn (1959) 173 Cal. App. 2d 624, 629.) This rule applies even where the judge’s acts are alleged to have been done maliciously and corruptly. (Tagliavia, supra, at p. 761.) The rule is based on “‘a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself.’ ” ( Tagliavia, supra, 112 Cal. App. 3d at p. 762.) Judicial immunity is a principle of common law which is necessary for the welfare of the state and the peace and happiness of society. (Tagliavia, supra, at pp. 762-763; Singer v. Bogen (1957) 147 Cal. App. 2d 515, 523-524.) Judicial immunity from a civil action for monetary damages is absolute. (Howard v. Drapkin (1990) 222 Cal. App. 3d 843, 851; Soliz v. Williams (1999) 74 Cal.App.4th 577, 585-586.) “’The justification for [judicial immunity] is that it is impossible to know whether [a person’s claim against an official] is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.’ …Thus, the protection must be absolute, even to the malicious or corrupt judge. The effect of judicial immunity is that the action against the judicial officer must be dismissed.” (Howard v. Drapkin (1990) 222 Cal. App. 3d 843, 852.)

Further, under the related concept of “quasi-judicial immunity,” California courts have also extended a form of judicial immunity to persons other than judges if those persons act in a judicial or quasi-judicial capacity. In determining whether a person is acting in a quasi-judicial fashion, the courts look at “the nature of the duty performed [to determine] whether it is a judicial act — not the name or classification of the officer who performs it, and many who are properly classified as executive officers are invested with limited judicial powers.” (Pearson v. Reed (1985) 6 Cal.App.2d 277, 286-287.) The immunity has been extended to nonjudicial persons who fulfill quasi-judicial functions intimately related to the judicial process against damage claims arising from their performance of duties in connection with the judicial process. (Soliz v. Williams

(1999) 74 Cal.App.4th 577, 585-586.)

But this survey of absolute state immunities for malicious prosecution and judicial acts as recommended in Lewis also does not dictate a conclusion that Acres’ malicious prosecution and vicarious claims constitute “official-capacity claims” or “personal-capacity suits” under Lewis. Existing California case authorities do provide guidance.

In Great W. Casinos, Inc. v. Morongo Band of Mission Indians, the Second District held that tribal sovereign immunity extended to the tribe’s outside legal counsel (characterized as “non-Indian law firm and general counsel”) in order to protect the tribal defendants’ interests and ensure adequate legal counsel for the tribe. The plaintiff in that case filed suit against a tribe, the tribal council, individual tribal council members, the tribe’s general counsel, an attorney and her private law firm regarding the tribe’s cancellation of a contract. The plaintiff alleged that when the tribe realized the profit potential of the contract, its council, and the individual members of the tribal council and tribe, acting through their general counsel, decided to concoct a fraudulent scheme to cancel the contract and oust the plaintiff from the lucrative business. The plaintiff alleged claims for bad faith breach of contract, fraud, breach of fiduciary duty, constructive fraud, conversion, interference with business relations, abuse of process, civil violation of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961 et seq. (RICO)), money had and received, imposition of a constructive trust, accounting and dissolution of partnership.

The trial court granted the defendants’ motions to quash and dismissed the action based upon tribal sovereign immunity. The Second District affirmed finding in relevant part that the non-Indian law firm and general counsel were protected by tribal sovereign immunity from liability predicated upon their actions taken or opinions given in rendering related legal services to the tribe to the same extent of immunity entitled to the tribe, tribal council, and tribe members.

In this regard, Great W. Casinos, Inc. opined as follows: “In providing legal representation– even advising, counseling and conspiring with the tribe to wrongfully terminate the management contract — counsel were similarly immune from liability for those professional services. (See Davis v. Littell, supra, 398 F.2d 83, 85 [attorney who advised tribal council regarding the competence and integrity of an employee is immune from liability for defamation under the executive privilege].) Citing federal case law, Great W. Casinos, Inc. stated with approval that “[t]ribes need to be able to hire agents, including counsel, to assist in the process of regulating gaming. As any government with aspects of sovereignty, a tribe must be able to expect loyalty and candor from its agents. If the tribe’s relationship with its attorney, or attorney advice to it, could be explored in litigation in an unrestricted fashion, its ability to receive the candid advice essential to a thorough licensing process would be compromised. The purpose of Congress in requiring background checks could be thwarted if retained counsel were inhibited in discussing with the tribe what is learned during licensing investigations, for example. Some causes of action could have a direct effect on the tribe’s efforts to conduct its licensing process even where the tribe is not a party.” (

Great W. Casinos, Inc. v. Morongo Band of Mission Indians, supra, 74 Cal.App.4th at 1423-1424 citing Gaming Corp. of America v. Dorsey & Whitney (8th Cir. 1996) 88 F.3d 536, 550.)

Applying this rationale, Great W. Casinos, Inc. held that “[a]s a sovereign the Morongo Band ‘enjoys sufficient independent status and control over its own laws and internal relationships to be able to accord absolute privilege to its officers within the areas of tribal control.’ (Davis v. Littell, supra, 398 F.2d at p. 84.) Moreover, as a sovereign the Morongo Band had the ‘[right] to look beyond its own membership for capable legal officers, and to contract for their services.’ (Id. at p. 85.) In performing their function counsel must be free to express legal opinions and give advice unimpeded by fear their relationship with the tribe will be exposed to examination and potential liability for the advice and opinions given. Refusing to recognize an extension of a tribe’s sovereign immunity to cover general counsel’s advice to the tribe could not only jeopardize the tribe’s interests but could also adversely influence counsel’s representation of the tribe in the future. For these reasons counsel in allegedly advising the tribe to wrongfully terminate the management contract are similarly covered by the tribe’s sovereign immunity.” (Great W. Casinos, Inc. v. Morongo Band of Mission Indians, supra, 74 Cal.App.4th at 1423-1424.)

Great W. Casinos, Inc.’s analysis regarding the extension of tribal sovereign immunity to the tribe’s legal counsel was relied upon by the United States District Court for the Southern District of New York in Catskill Dev., LLC v. Park Place Entm’t Corp. (U.S.D.C. S.D.N.Y. 2002) 206 F.R.D. 78. In that case, the District Court addressed in part whether a tribe’s non-member attorneys were protected by the tribe’s sovereign immunity against subpoenas issued to the attorneys demanding information about the tribe’s business and the attorneys’ work on behalf of the tribe in a civil action where neither the tribe nor the attorneys were parties.

The District Court held that the attorneys were entitled to sovereign immunity against the subpoenas, reasoning as follows: “As a general proposition, a tribe’s attorney, when acting as a representative of the tribe and within the scope of his authority, is cloaked in the immunity of the tribe just as a tribal official is cloaked in that immunity. Id. at p.91; See, e.g., Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536, 550 (8th Cir. 1996); Stock West Corp. v. Taylor, 942 F.2d 655, 664-65 (9th Cir. 1991), modified on rehearing, 964 F.2d 912 (9th Cir. 1992) (en banc) (tribal attorneys may qualify as a “tribal official” if their actions are “clearly tied to their roles in the internal governance of the tribe”); Davis v. Littell, 398 F.2d 83, 84-85 (9th Cir. 1968), cert. denied, 393 U.S. 1018, 21 L. Ed. 2d 562, 89 S. Ct. 621 (1969); Great Western Casinos, Inc. v. Morongo Band of Mission Indians, 74 Cal. App. 4th 1407, 1423-24, 88 Cal. Rptr. 2d 828 (Cal. Dist. Ct. App.), review denied, 1999 Cal. LEXIS 9092 (Dec. 21, 1999), cert. denied, 531 U.S. 812, 148 L. Ed. 2d 15, 121 S. Ct. 45 (2000); Diver v. Peterson, 524 N.W.2d 288, 292 (Minn. Ct. App. 1994), review denied (Minn Feb. 14, 1995); White Mountain Apache Indian Tribe v. Shelley, 107 Ariz. 4, 7-8, 480 P.2d 654, 657-58 (1971).” (Catskill Dev., LLC, 206 F.R.D. at pp. 91-92.) The court found that “Tribal attorneys possess sovereign immunity only to the extent that a tribal official

possesses sovereign immunity….” (Id.)

“Although Indian tribes enjoy broad sovereign immunity from lawsuits, the immunity of Indian tribal officials … is more limited.” (Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1157.) When tribal officials “act ‘in their official capacity and within their scope of authority,’” they are protected by sovereign immunity because their acts are the acts of the sovereign. (Turner v. Martire (2000) 82 Cal.App.4th 1042, 1046.) On the other hand, when “an officer of a sovereign acts beyond his or her delegated authority, his or her actions ‘are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden,’” and therefore sovereign immunity does not apply. (Turner, at p. 1055; see Trudgeon, supra, 71 Cal.App.4th at p. 644.) A tribal official’s commission of a tort is not per se an act in excess of authority, and therefore is not necessarily unprotected by immunity. “‘[I]f the actions of an officer do not conflict with the terms of his valid statutory authority, then they are actions of the sovereign, whether or not they are tortious under general law … .’ [Citation.]” (Boisclair, supra, 51 Cal.3d at p. 1157; see Turner, supra, 82 Cal.App.4th at p. 1055; Trudgeon, supra, 71 Cal.App.4th at p. 644.) Accordingly, to determine whether a tribal official is entitled to the protection of sovereign immunity for a tortious act, courts must determine whether the official (1) committed the act in his or her official capacity and (2) within the scope of his or her official authority. (Boisclair, at pp. 1157-1158; Turner, at p. 1046; Great Western Casinos, Inc. v. Morongo Band of Mission Indians, supra, 74 Cal.App.4th at p. 1421; Trudgeon, at pp. 643-644.) “A tribal official also may forfeit immunity where he or she acts out of personal interest rather than for the benefit of the tribe.” (Turner, at p. 1055.)

The parties also cite Brown v. Garcia (2017) 17 Cal. App. 5th 1198 for consideration on the issue. Brown involved a defamation action by plaintiff tribe members against other defendant tribe members. Specifically, the defendant tribe members published an “Order of Disenrollment” (the Order) that accused the plaintiffs of multiple violations of tribal, state and federal laws. The Order stated, “‘[i]f you are found guilty by the General Council of these offenses against the Tribe, you may be punished by: a. DISENROLLMENT – loss of membership.’” On the defendant’s motion to quash the defamation action based upon sovereign immunity, the trial court ruled the lawsuit was barred by sovereign immunity finding that the alleged defamatory statements were made pursuant to the defendants’ lawful authority as tribal officials. The First District affirmed.

The plaintiffs’ in Brown made arguments very similar to Acres’ arguments on this motion. Specifically, the Brown plaintiffs argued that sovereign immunity was inapplicable because they were suing defendants only in their individual capacities and sought relief only from them as individuals, not from the Tribe. The plaintiffs denied that their action would require the court to adjudicate an intra-tribal dispute or insert itself in tribal law, custom, practice or tradition. Instead, the plaintiffs represented that they were “simply asking that the Defendants, in their individual capacities, be held

accountable for their defamation of fellow Californians.”

Looking to Ninth Circuit authorities, and rejecting the plaintiffs’ contentions, Brown observed that “sovereign immunity will nonetheless apply in appropriate circumstances even though the complaint names and seeks damages only from individual defendants.” Citing Pistor v. Garcia (9th Cir. 2015) 791 F.3d 1104, Brown noted that: “‘In any suit against tribal officers, we must be sensitive to whether ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the [sovereign] from acting, or to compel it to act.’”

In affirming that the defendants were entitled to tribal sovereign immunity against the defamation claims, Brown accepted that the plaintiffs’ suit did not ask the court to take any actions regarding their disenrollment from the tribe, and only sought to assess liability for torts the tribal officials allegedly committed in effectuating that disenrollment. However, Brown also found that “[n]otwithstanding plaintiffs’ assertion that their action is ‘purely about harmful publications’ and ‘does not require a court to interfere with any membership or governance decisions,’ entertaining the suit would require the court to adjudicate the propriety of the manner in which tribal officials carried out an inherently tribal function.”

Acres argues that Great W. Casinos, Inc. v. Morongo Band of Mission Indians is overruled by Lewis to the extent it “disagrees with Lewis,” and that Brown v. Garcia (2017) 17 Cal.App.5th 1198 is inapt because it only involved inter-tribal governance and membership issues. The Court disagrees with both contentions.

First, Great W. Casinos, Inc.’s extension of tribal sovereign immunity to the tribe’s legal counsel protecting them from liability predicated upon their actions taken or opinions given in rendering legal services to the tribe does not “disagree” with the “official-capacity” “personal-capacity” dichotomy identified in Lewis. The finding in Great W. Casinos, Inc. that the tribe’s legal counsel functioned as tribal officials does not run afoul of Lewis. And, nothing in the facts of Great W. Casinos, Inc. prevented a finding that the relief sought by the plaintiffs there was only nominally against the attorneys as individuals and was instead an action against the tribes attorneys as tribal officials acting in their tribal office, and thus was an action against the sovereign tribe itself.

Second, the nuanced holding in Brown is not inapt here. Brown was fully aware of Lewis. Brown was presented with a circumstance where the plaintiffs pled facially “personal-capacity suits” for defamation against the defendants, but the court looked beyond the facade of the action to determine whether the claims against the tribal officials would compel the state court to adjudicate the propriety of the manner in which the tribal officials carried out inherently tribal functions. The circumstances in Brown are echoed in the instant matter. As the moving defendants argue, “[i]f this Court were to wade in and decide what actions are or are not permissible in Tribal Court it necessarily asserts control of that Court. Is this Court, as Plaintiff contends, supposed to rule on what pleadings are appropriate in Tribal Court or how an action in Tribal Court must be plead? … Is it to determine when, in Tribal Court, an attorney has

misused the Tribal Court’s judicial process … or whether the Tribal Court correctly followed its own procedures?” (MPA, p. 7:25-8:3.) These are not insignificant or immaterial questions in the malicious prosecution action, since the case involves alleged malicious prosecution only in the Tribal Court. It is inescapable that this state court would be compelled to adjudicate the propriety of the manner in which the tribal attorneys, as tribal officials, carried out inherently tribal functions in the Tribal Court. Brown supports an extension of sovereign immunity to the tribe’s attorneys in this action.

The court does not find People ex rel. Owen v. Miami Nations Enterprises (2016) 2 Cal. 5th 222, to be instructive on this motion. Acres cites Miami Nations for the proposition that the law firm defendants, as opposed to the individual attorneys, may only have sovereign immunity if the law firms qualify as an “arm of the tribe.” The Court does not find that this is an “arm of the tribe” case as to the law firms, and that to the extent the individual tribal attorneys have sovereign immunity for their representation of the tribe, so too would their law firms for any liability allegedly caused by the attorney’s individual professional acts.

In light of the foregoing, the Court finds that in the prosecution of the Tribal Court action, the moving defendant attorneys were functioning as the Tribe’s officials or agents solely within the Tribal Court’s jurisdiction. The moving defendants are clearly not analogous to the negligent employee in Lewis v. Clarke. There is no evidence that the moving defendants acted in their individual capacities for their own private purposes and benefit, or outside the scope of their legal agency, authority and fiduciary duty to the Tribe as tribal officials. Allowing the action to proceed against the Tribe’s attorneys would undoubtedly require the Tribe to act, and would entangle this court in questions of Tribal Court practice and law that would directly impinge the Tribe’s sovereignty. Extending sovereign immunity to the tribe’s attorneys for their acts in the Tribal Court action is supported by Great W. Casinos, Inc. and Brown, and is not in conflict with Lewis. Further, extending sovereign immunity to the tribe’s legal counsel would be commensurate with the scope of state sovereign immunity under analogous circumstances.

This minute order is immediately effective. A formal order and further notice of this ruling are not required.