Filed 1/9/20 Barrett v. Selnek-is Tem-al Corp. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

JAMES BARRETT,

Plaintiff and Appellant,

v.

SELNEK-IS TEM-AL CORPORATION et al.,

Defendants and Respondents.

C087817

(Super. Ct. No. 34201800232371CUBTGDS)

This case represents James Barrett’s third attempt to revoke the off-sale beer and wine license of Selnek-is Tem-al Corporation (Selnek-is) for failure to pay state taxes. Selnek-is operates as an entity that is wholly owned by a federally-recognized Indian tribe, the Torres Martinez Desert Cahuilla Indians (the Tribe). In addition to suing on his own behalf, Barrett also seeks to assert claims assigned to him by Salton Sea Ventures, Inc. (SSV). SSV operates a minimart and truck-stop that sells off-sale alcoholic beverages approximately seven miles away from the travel center where Selnek-is sells the same. SSV also previously sued Selnek-is in hopes of revoking Selnek-is’s off-sale license for failure to pay applicable state taxes. Barrett’s current complaint expressly notes Selnek-is’s “Travel Center offers comparable types and levels of service as does SSV’s AM/PM Minimart and truck stop.”

Barrett appeals from three separate orders in this action:

First, Barrett challenges the trial court’s sustaining of a demurrer brought by the Department of Alcoholic Beverage Control and its director, Jacob Appelsmith (together, the ABC respondents). The trial court determined Barrett’s claims against the ABC respondents were fully adjudicated by the Alcoholic Beverage Control Appeals Board (Appeals Board) and subsequently in the Court of Appeal.

Second, Barrett challenges the sustaining of a demurrer brought by the State of California, the California Department of Tax and Fee and Administration (CDTFA), David Botelho in his capacity as the Director of the CDTFA (now Nicholas Maduros), the State Controller’s Office, and Betty T. Yee in her capacity as the State Controller (together, the State respondents). The trial court determined Barrett’s claims against the State respondents are barred by res judicata due to two prior cases that resolved in favor of the State respondents.

Third, Barrett challenges the trial court’s granting of a motion to quash brought by Selnek-is. The trial court granted the motion to quash because the Tribe is immune from suit and has not waived its immunity.

On appeal, Barrett contends (1) res judicata does not apply to the ABC respondents or the State respondents because there is a meaningful difference between “citizen/taxpayer Barrett and Barrett the assignee” of SSV’s right to sue, (2) all prior cases involved different primary rights than that in the current action, (3) the prior voluntary dismissal by SSV does not support the defense of res judicata against Barrett in the current case, (4) the Sacramento Superior Court lacked authority to dismiss the ABC and State respondents because there was a default judgment entered in the Imperial County Superior Court case prior to transfer, (5) the Sacramento County Superior Court erred in granting Selnek-is’s motion to quash as “not supported by substantial evidence under the five-factor test of People v. Miami Nation [Enterprises (2016) 2 Cal.5th 222],” (6) the trial court wrongly placed the burden of proof on him to show Selnek-is is amenable to suit, (7) the trial court misconstrued a “sue and be sued” clause in the tribal corporation ordinance, and (8) “res judicata argument in motion to quash is misplaced; constitutes general appearance.”

We conclude res judicata bars Barrett’s current action against the ABC and State respondents. This is the fourth action against the ABC and State respondents based on the same primary right, and therefore claim preclusion applies. We further conclude substantial evidence supports the trial court’s granting of Selnek-is’s motion to quash. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Barrett I

In June 2014, Barrett filed an accusation with the ABC to suspend Selnek-is’s off-sale license under Business and Professions Code section 24205 for being more than three months delinquent in the payment of tax obligations to the state. The ABC conducted a formal hearing before issuing its decision. The ABC’s decision stated Business and Professions Code section 24205 cannot serve as the basis for an accusation. The decision further determined there was no evidence state taxing agencies had determined Selnek-is wrongfully failed to pay taxes in a manner warranting suspension of Selnek-is’s off-sale license. The Appeals Board affirmed the ABC’s decision in December 2015. In affirming, the Appeals Board noted Barrett “has produced evidence so scant that his case amounts to little more than a nuisance suit.”

In January 2016, Barrett filed a petition for writ of review in the Court of Appeal, Fourth District. The Fourth District denied the writ petition. The California Supreme Court denied Barrett’s petition for review in February 2016.

Barrett II

In January 2015, Barrett filed a petition for writ of mandate in the Imperial County Superior Court against the State Board of Equalization (including its members and executive director), the State Controller’s Office (including the State Controller), and the Office of the California Attorney General (including the Attorney General). The gist of the writ petition was to compel these state agencies and officers to comply with their mandatory duties to collect taxes and enforce the Alcoholic Beverage Control Act against Selnek-is.

Barrett asserted standing as a taxpayer. The gravamen of the petition in Barrett II was the same as the accusation in Barrett I, namely a claim Selnek-is was operating illegally by failing to collect state taxes and state agencies were derelict in collecting the taxes. Among numerous remedies sought, Barrett petitioned for the revocation of Selnek-is’s off-sale license.

The case was transferred to the Los Angeles County Superior Court. The case was then transferred to the Court of Appeal, Second District. The Second District requested supplemental briefing. Barrett submitted additional briefing in which he argued the state agencies and officials named in the writ petition were derelict in their duties under Business and Professions Code section 24205 in enforcing state tax provisions against Selnek-is. The Second District denied the writ in February 2017.

SSV v. Selnek-is et al.

In October 2015, SSV brought an action against Selnek-is, the California Board of Equalization, California Department of Alcoholic Beverage Control, State Controller’s Office, and California Department of Public Health. An amended complaint was filed in February 2016. The gravamen of the amended complaint is Selnek-is unfairly competes with SSV by failing to collect various state sales and use taxes. SSV sought six pages of enumerated remedies including suspension of Selnek-is’s alcoholic beverage control license; declaratory relief stating Selnek-is must comply with state tax obligations; and injunctive relief requiring agencies and officials to levy state taxes on Selnek-is.

In March 2016, Selnek-is specially appeared to move to quash SSV’s service of summons and complaint on grounds of tribal sovereign immunity. In August 2016, the Imperial County Superior Court granted the motion.

In August 2016, SSV filled out a request for dismissal with prejudice that was served on all defendants.

The Current Case: Barrett III

In July 2017, Barrett filed a complaint in Imperial County Superior Court against Selnek-is, the State of California, the Board of Equalization (and its executive director), CDTFA (and its director), the ABC (and its director), and the State Controller’s Office (and the State Controller). Barrett asserted he was assigned SSV’s rights against Selnek-is. The complaint acknowledges SSV sold its interest in the Salton City Travel Center in January 2017 to a third party and SSV no longer operates the Salton City Travel Center.

The essence of the complaint in Barrett III is that (1) Selnek-is unfairly competes with SSV by failing to collect various sales and use taxes, and the state agencies and officials named in the writ petition were derelict in their duties to collect state taxes from Selnek-is.

In February 2018, the ABC respondents filed a motion to transfer venue to Sacramento County Superior Court that was granted. The case was transferred to Sacramento County in May 2018.

Motion to Quash by Selnek-is

In June 2018, Selnek-is specially appeared to move to quash Barrett’s service of summons and complaint on grounds of tribal sovereign immunity. The trial court granted the motion on grounds Selnek-is is an arm of the tribe and therefore entitled to tribal sovereign immunity. The trial court found Selnek-is “produced evidence to establish that no such unequivocal waiver has ever occurred,” and Barrett failed to show any waiver of immunity.

Demurrer by the ABC and State Respondents

Also in June 2018, the ABC respondents filed a demurrer on grounds Barrett lacked standing to sue and the action was barred by res judicata. The State respondents separately demurred on the same grounds. The trial court sustained the ABC and State respondents’ demurrers without leave to amend. The trial court determined the applicability of the res judicata defense meant the defect could not be cured by amendment.

Judgment and Appeal

The trial court entered a judgment of dismissal and Barrett timely filed a notice of appeal.

I

Action against the ABC and State Respondents

Barrett argues the trial court erred in sustaining the demurrers of the ABC and State respondents on grounds of res judicata. In so arguing, he acknowledges the prior proceedings “were all brought by citizen/taxpayer Barrett and involved most of the instant actors, arguably similar legal theories, and arguably similar relief sought herein . . . .” We conclude the trial court correctly determined res judicata bars Barrett’s current action against the ABC and State respondents.

A.

Standard of Review

A demurrer may be brought to test the legal sufficiency of a complaint. (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) As a pure question of law, we review challenges to the sustaining of a demurrer under the de novo standard of review. (Ibid.) We accept as true all material facts properly pleaded in the complaint and consider matters that may be judicially noticed. (Holiday Matinee, supra, at p. 1416.) If the judgment is correct on any valid legal theory, we must affirm regardless of whether the trial court relied on that theory. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 511.)

A demurrer may be used to assert the defense of res judicata. “ ‘If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer.’ ” (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 225, quoting Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.) If the defect in the complaint may be cured by amendment, the sustaining of a demurrer constitutes error. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) However, the appellant bears the burden of demonstrating how the complaint may be amended to state a valid cause of action. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

B.

Res Judicata

The doctrine of res judicata presents a defense against assertions of the same cause of action between the same parties, or parties in privity with them, after a final judgment. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) By res judicata, we refer to claim preclusion that bars claims that were, or should have been, asserted in a prior action between the same parties or parties in privity with them. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824; Planning & Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at p. 226.) As the Supreme Court explained in DKN Holdings, “[c]laim preclusion ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ (Mycogen [Corp. v. Monsanto Corp. (2002)] 28 Cal.4th at p. 896.) Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. (Ibid.; In re Crow (1971) 4 Cal.3d 613, 622; Teitelbaum Furs[, Inc. v. Dominion (1962)] 58 Cal.2d [601,] 604.) If claim preclusion is established, it operates to bar relitigation of the claim altogether.” (DKN Holdings, supra, at p. 824.)

In determining whether two or more actions share related claims, California adheres to the primary right theory. “[U]nder the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) Stated another way, “the primary right is simply the plaintiff’s right to be free from the particular injury suffered,” regardless of the legal theory on which the plaintiff later seeks to recover. (Mycogen, supra, 28 Cal.4th at p. 904.) Consequently, the primary rights theory bars claims asserted as well as “claims that could have been raised in the first proceeding.” (Noble v. Draper (2008) 160 Cal.App.4th 1, 11.)

C.

Applicability of Res Judicata

The trial court properly concluded Barrett’s current action against the ABC and State respondents is barred by res judicata.

1. Same Primary Right

The record establishes the primary right in this case is the same as in Barrett I, Barrett II, and SSV v. Selnek-is. In Barrett I, Barrett sought to have Selnek-is’s off-sale license revoked and its purported tax delinquencies brought current. Barrett II involved the same claim that Selnek-is’s off-sale license should be revoked and its tax delinquencies brought current. SSV v. Selnek-is was based on the claim Selnek-is’s off-sale license should be revoked because it unfairly competes with SSV by failing to collect various sales and use taxes.

As in the prior three cases, Barrett’s current action continues to seek revocation of Selnek-is’s off-sale license and the collection of Selnek-is’s purported state tax delinquencies. We agree with the trial court that “[t]he gravamen of all Barrett’s and [SSV’s] prior claims is that they were harmed by the failure of state agencies and officials to pursue their allegedly mandatory duties to collect sales and use taxes against Selnek-is.” The primary right in all four cases is the same.

Barrett argues the primary right in Barrett I against the ABC respondents was brought in his capacity as “citizen/taxpayer Barrett” to secure compliance “with the ABC licensing Act.” He asserts his action in Barrett II as brought against the State respondents “to not have the state waste public funds . . . .” And he characterizes SSV v. Selnek-is as pursuing “the right to be free from economic harm caused by other persons or the government.” We are not convinced by Barrett’s effort to differentiate the primary right in the prior cases.

The primary right in all three prior cases was the same as asserted in this action. Barrett I, Barrett II, and SSV v. Selnek-is, all sought suspension of Selnek-is’s off-sale license for failure to pay state taxes and to compel Selnek-is to pay purportedly delinquent state taxes. Accordingly, we reject Barrett’s attempt to parse the claims in the four cases to split the primary right according to the nature of the plaintiff.

We also reject Barrett’s attempt to parse the primary right by time period. Barrett asserts his claims (or those of SSV) originate anew every three months. In support of this proposition, Barrett offers no authority. We reject the assertion. A primary right includes remedies flowing from the same legal violation even if some of the damages accrue in the future. (Mycogen, supra, 28 Cal.4th at p. 907.) Here, the violation is – according to Barrett and SSV – an unbroken delinquency in Selnek-is’s payment of state taxes on its liquor sales. Dividing this same alleged violation into three-month time periods does not divide the primary right. The primary right is the same in all four cases brought by Barrett and SSV: the theory Selnek-is’s off-sale license must be revoked for delinquencies in paying state taxes.

2. Between the Same Parties

Barrett’s briefing appears divided on the same-party prong of res judicata. He acknowledges all four cases “involved most of the instant actors.” On the other hand, he also seeks to create multiple plaintiffs out of himself as “citizen/taxpayer Barrett” and as “Barrett the assignee” of SSV’s right of action against Selnek-is. We reject his approach.

The defense of res judicata applies to actions between the same parties and parties in privity with them. “Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is ‘directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment.’ [Citations.] A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.” (Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 672, quoting originally Bernhard v. Bank of America (1942) 19 Cal.2d 807 [brackets added by the Cal Sierra court].)

Here, Barrett’s complaint claims standing, at least in part, as an assignee of SSV’s rights against Selnek-is. Barrett’s rights from SSV are coterminous with defenses to those same rights. “[T]he general rule is that the assignee takes subject to all equities and defenses existing in favor of the maker.” (Creative Ventures, LLC v. Jim Ward & Associates (2011) 195 Cal.App.4th 1430, 1447.) Thus, Barrett’s current claim is subject to the same res judicata defense the ABC and State respondents could assert against SSV. As we have noted, SSV previously maintained an action against the California Board of Equalization, California Department of Alcoholic Beverage Control, California State Controller’s Office, and California Department of Public Health. And Barrett personally sued the ABC respondents in Barrett I and the State respondents in Barrett II. The requirement of prior action between the same parties or parties in privity with them is satisfied.

3. After Final Judgment on the Merits

All of the prior actions are final. In Barrett I, the California Supreme Court denied Barrett’s petition for review. In Barrett II, the Second District denied Barrett’s writ petition. And SSV voluntarily dismissed – with prejudice – its action against Selnek-is. For purposes of res judicata, each of these dispositions is a final judgment. (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820.)

For the first time on appeal, Barrett argues SSV’s voluntary dismissal should not count as a final judgment because the dismissal form was not signed by the defendants. For failure to raise this issue in the trial court, the contention has not been preserved for appeal. (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 948-949 (K.C. Multimedia).) In sum, the trial court properly determined res judicata barred Barrett’s current action against the ABC and State respondents.

D.

Default Judgment

Barrett contends the trial court erred in sustaining the demurrer by the State respondents because the State of California had a default judgment entered against it in Imperial County.

We decline to address Barrett’s new contention on appeal that the State of California itself was not dismissed from this case by the Sacramento County Superior Court because it still had a default entered against it in the Imperial County Superior Court. His opposition to demurrer of the State respondents was silent on this issue. This argument was not presented in the trial court and is therefore not preserved for review. (K.C. Multimedia, supra, 171 Cal.App.4th at pp. 948-949.)

In any event, the record shows the State of California was not in default in Imperial County, although a default judgment was initially entered in error, because a motion to transfer the case was already pending. The State respondents quickly moved to vacate the default. The error resulted in a void default judgment that was corrected before the matter was transferred. (Dhawan v. Biring (2015) 241 Cal.App.4th 963, 974.) In rejecting the entry of default, the Imperial County Superior Court clerk noted the default was not entered. Specifically, the clerk’s notation states, “Default [is] NOT entered as requested” because “transfer of case [is] pending.” Thus, there was no impediment to transferring the case to Sacramento County.

II

Action Against Selnek-is

Barrett contends the trial court’s order granting the motion to quash lacks substantial evidence in support, Barrett was erroneously saddled with the burden of proof regarding the tribal sovereign immunity, and the trial court erred in finding the tribe did not waive its sovereign immunity.

A.

Tribal Sovereign Immunity

A federally recognized Indian tribe is generally immune from suit in state court except to the extent Congress has authorized the legal action or the tribe has waived its immunity. (San Pasqual Band of Mission Indians v. State of California (2015) 241 Cal.App.4th 746, 760.) Tribal sovereign immunity applies to legal action arising out of a tribe’s commercial activities. (Ibid.) A federally recognized Indian tribe may waive its immunity from suit. (Campo Band of Mission Indians v. Superior Court (2006) 137 Cal.App.4th 175, 182.) “However, such consent cannot be implied and, while no talismanic words are required, it must nonetheless be ‘clear.’ ” (Id. at pp. 182-183, citing inter alia C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla. (2001) 532 U.S. 411, 414-420.) If the tribe has waived its immunity to suit, any limitations placed by the tribe on the waiver must be strictly construed. (Campo Band, supra, at pp. 182-183.)

In People v. Miami Nation Enterprises (2016) 2 Cal.5th 222 (Miami Nation), the California Supreme Court articulated a five-part test for determining whether an entity affiliated with a tribe – as an “arm-of-the-tribe” – is immune to suit under tribal sovereign immunity. (2 Cal.5th at pp. 244-248.) To establish its entitlement to immunity, an entity affiliated with a tribe bears the burden of showing considerations of (1) the entity’s method of creation, (2) whether the tribe intended to extend immunity to the entity, (3) the entity’s purpose, (4) the extent of control the tribe exerts over the entity, and (5) the financial relationship between the tribe and the entity. (Ibid.) “The ultimate purpose of the inquiry is to determine ‘whether the entity acts as an arm of the tribe so that its activities are properly deemed to be those of the tribe.’ ” (Miami Nation, supra, at p. 250, quoting Allen v. Gold Country Casino (9th Cir. 2006) 464 F.3d 1044, 1046.)

A tribe or its tribally affiliated entity may assert immunity from suit by specially appearing to bring a hybrid motion to quash/dismiss. (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1204.) The tribe or tribally affiliated entity have the burden of establishing entitlement to immunity. (Miami Nation, supra, 2 Cal.5th at p 240.)

B.

Standard of Review

The question of whether a court has jurisdiction over an action involving a tribally related entity ordinarily constitutes a question of law we review under the de novo standard of review. (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1180.) Here, however, Barrett challenges the sufficiency of the evidence in support of the motion to quash/dismiss brought by Selnek-is. Specifically, he argues that “the trial court did not have enough information before it to make an adequate arm-of-the-tribe determination under the [Miami Nation] Five-Factor Test.” A challenge to the sufficiency of the evidence in support of a judgment triggers the substantial evidence standard of review. “Under the deferential substantial evidence standard of review, findings of fact are liberally construed to support the judgment or order and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) ‘A single witness’s testimony may constitute substantial evidence to support a finding.’ ” (Powell v. Tagami (2018) 26 Cal.App.5th 219, 231 (Powell).) Likewise, the trail court is also entitled to rely on declarations as substantial evidence. (City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 466.) “It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility. [Citation.] ‘ “ ‘A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.’ ” ’ ” (Powell, supra, at p. 231.)

C.

The Miami-Nation Test

Selnek-is introduced substantial evidence that it is an arm of the tribe and entitled to immunity from suit. As a preliminary matter, Selnek-is introduced a federal register notice showing the Torres Martinez Desert Cahuilla Indian tribe is a federally recognized Indian tribe. Thus, Selnek-is established that if it is an arm of the Tribe in this case under the Miami Nation test, it is entitled to immunity from suit. (Miami Nation, supra, 2 Cal.5th 222.)

1. Selnek-is’s Creation

The evidence submitted in support of the motion to quash shows Selnek-is’s creation is a factor weighing in favor of immunity from suit. Selnek-is was created under tribal law. Indeed, Barrett’s complaint acknowledges this where it alleges: “Selnek-is is a corporate entity formed under the authority of the Tribe’s Corporation Ordinance (TMORD-001-96), dated February 17, 1996.” Selnek-is introduced evidence showing its articles of incorporation declared: “The Corporation shall be a Tribal Corporation formed and operating as a sub-entity of Tribal Government . . . .”

Barrett denies this constitutes substantial evidence even though he concedes Selnek-is’s tribal creation is supported by multiple declarations, Selnek-is’s articles of incorporation, its certificate of incorporation, its bylaws, and the Tribe’s corporation ordinance. This, Barrett contends, is still not enough because he believes Selnek-is should also have had to produce the Tribe’s constitution and proof of how Selnek-is received its start-up capital. We reject Barrett’s attempt to elevate the standard of proof far beyond that required under the Miami Nation test.

The California Supreme Court has admonished that “[a]rm-of-the-tribe immunity must not become a doctrine of form over substance.” (Miami Nation, supra, 2 Cal.5th at p. 240.) Thus, no particular type of evidence is required to address the five-part Miami Nation test. (See ibid.) Here, the evidence establishes Selnek-is was established under tribal law. As such, this factor weighs in favor of immunity from suit. (Id. at pp. 245-246.)

2. Extension of Tribal Immunity to Selnek-is

The evidence in support of the motion to quash also shows the Tribe intended to extend the Tribe’s immunity from suit to Selnek-is. On this factor, Selnek-is introduced the declaration of Richard Lopez, a tribal member and president of Selnek-is. Lopez explained that “[w]hen it formed Selnek-is Tem-[a]l Corporation, the Tribe extended its sovereign immunity to the Corporation and expressly provided that the Corporation could not waive sovereign immunity except by official action by resolution adopted by the board of directors.” An examination of Selnek-is’s articles of incorporation shows the articles expressly state they do not contain any provision that may be construed as a waiver of the Tribe’s immunity from suit.

Barrett acknowledges Selnek-is submitted evidence showing the Tribe’s extension of immunity to Selnek-is in the form of Lopez’s declaration, the tribal corporation ordinance, Selnek-is’s articles of incorporation, and its bylaws. Moreover, Barrett even concedes he “does not dispute Selnek-is’ Articles of Incorporation and Bylaws claim that the Tribe has bestowed upon [Selnek-is] the protection of the Tribe’s sovereign immunity through the enactment of those two documents . . . .” However, Barrett engages in textual hair-splitting in an attempt to show the documents are inherently self-contradictory about the extension of immunity. In other words, he argues the extension of immunity to Selnek-is might be read to contradict what it expressly says.

We reject Barrett’s argument as fundamentally at odds with the standard of review for sufficiency of the evidence. Beginning with the presumption the trial court’s judgment is correct, we review the evidence in the record in the light most favorable to the judgment. (Powell, supra, 26 Cal.App.5th at p. 231.) Viewed through the lens of the substantial evidence rule, Selnek-is’s evidence supports the finding the Tribe extended its immunity from suit to Selnek-is.

3. Selnek-is’s Purpose

Selnek-is introduced evidence to show its purpose was wholly devoted to supporting the Tribe and its members. Lopez declared Selnek-is was formed “to assist the Tribe and its members in attaining self-sufficiency, and to further the economic and resource development of the Tribe.” To this end, Selnek-is operates the Red Earth Travel Center (a convenience store and gas station) and the Red Earth Casino on behalf of the Tribe. Both the Red Earth Travel Center and the Red Earth Casino are located on tribal trust land within the Tribe’s reservation.

Barrett contends this evidence does not suffice to show Selnek-is’s purpose is to benefit the tribe. He faults Selnek-is for failing to prove the number of jobs it creates for tribal members, the amount of revenue it generates for the tribe, or how it defines “profits.” Thus, he believes Selnek-is did not meet its burden to establish the “functional aspect” of this factor. We disagree.

In Miami Nation, the California Supreme Court noted the five-part test “takes into account both formal and functional aspects of the relationship between the tribes and their affiliated entities . . . .” (2 Cal.5th at p. 230.) “[I]n other words,” this test takes into account “not only the legal or organizational relationship between the tribe and the entity, but also the practical operation of the entity in relation to the tribe.” (Id. at p. 236.) As a practical test, the Miami Nation court held the entity seeking immunity must demonstrate its entitlement to immunity but without any particular type of proof. (See id. at p. 242 [requiring a tribally affiliated entity that claims immunity to prove by a preponderance of evidence it is an arm of the tribe but without requiring any specific proof or type of evidence].)

Barrett’s ability to imagine additional forms of proof in support of the various Miami Nation factors does not mean Selnek-is failed to meet its burden. Selnek-is’s evidence showed it operates on tribal land for the purpose of benefiting the Tribe by furthering the aim of its members’ self-sufficiency. Barrett does not purport to show Selnek-is’s stated purpose is a ruse to disguise another hidden purpose. Instead, he merely asserts Selnek-is could have done more to prove its claim. We reject the assertion because Selnek-is’s evidence in support of its tribal purpose was credible and uncontradicted.

4. The Tribe’s Control of Selnek-is

Selnek-is introduced evidence that it is subject to tribal control. The original articles of incorporation were intended to establish “[t]ribal business ventures and other income producing activities” through Selnek-is. The tribal council reserved the right to approve or disapprove of any lease or purchase contract for a value exceeding $50,000 or created a commitment lasting more than 60 months. In 2017, the articles of incorporation were revised to require tribal council approval for all agreements and approval by the Tribe’s general council to acquire or dispose of any real property. The tribal council also reserved to itself the prerogative to approve the selection of all Selnek-is board members and select independent auditors of Selnek-is’s records. The extensive nature of the Tribe’s control over Selnek-is weighs in favor of finding it is entitled to tribal sovereign immunity.

Barrett acknowledges “Selnek-is has provided limited testimonial evidence that the Tribe retains formal control over them, and they are solely owned by the Tribe . . . .” Nonetheless, he contends Selnek-is has “completely neglected to produce any concrete non-testimonial evidence that would attest to just how much power has been ceded over to [Selnek-is’s] management company over the day-to-day operations of the enterprise . . . .” Barrett cites no authority for the proposition non-testimonial evidence is necessary under the Miami Nation test or Selnek-is must detail its day-to-day operations. We reject Barrett’s assumption that his speculation about the day-to-day operations of Selnek-is can cast doubt on the undisputed evidence the Tribe is the sole owner of Selnek-is and the tribal council exercises extensive control over Selnek-is’s ability to operate.

5. Financial Relationship between the Tribe and Selnek-is

On the issue of the financial relationship between the Tribe and Selnek-is, Lopez declared Selnek-is pays all profits from the operation of its travel center and casino to the Tribe. The Tribe also requires Selnek-is to transfer surplus property and funds to the Tribe “to be used for social and governmental purposes or investment on behalf of the Tribe.” As with the other five Miami Nation factors, this factor too weighs in favor of the trial court’s finding Selnek-is operates as an arm of the Tribe.

Barrett again challenges the quantum of proof offered by Selnek-is. He argues that “Selnek-is has not provided enough evidence to warrant tipping the scales in their favor.” Barrett imagines Selnek-is could have shown the amount of profits generated for and remitted to the Tribe. He also notes Selnek-is showed “negative assets of $920,839 for 2006-2007, which dramatically increased to $2,390,514 in 2007-2008.” The source for Barrett’s assertion is the reports of the Tribe’s independent auditors who integrated Selnek-is’s assets into the Tribe’s statement of expenses. Rather than disproving Selnek-is’s affiliation with the Tribe, the cited evidence shows Selnek-is is so integrated with the Tribe that the Tribe’s annual financial report wholly includes Selnek-is in its numbers. The financial relationship between the Tribe and Selnek-is supports the conclusion Selnek-is is entitled to immunity as an arm of the Tribe.

Our analysis of the Miami Nation factors compels us to conclude the trial court properly determined Selnek-is is entitled to tribal sovereign immunity from suit. In reaching this conclusion, we reject Barrett’s protest that the trial court did not follow the Miami Nation analysis. (Miami Nation, supra, 2 Cal.5th 222.) The record shows Barrett and Selnek-is briefed the trial court on the Miami Nation factors. Although the trial court did not expressly cite Miami Nation in its order granting the motion to quash, we presume the trial court correctly applied the controlling authority. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [“ ‘[I]n the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law’ ”].) We affirm if the trial court’s result comports with any valid legal theory. (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1 [“[T]he law is clear that we may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court”].) As we explained above, substantial evidence supports the trial court’s finding Selnek-is is entitled to immunity to suit.

D.

Burden of Proof

Barrett argues the trial court erred in saddling him with the burden of proof under the Miami Nation five-factor test. In so arguing, he states that “[a]s for whom the trial court placed the burden of proof on for establishing arm-of-the-tribe status is not clear from the record.” This statement is fatal to the success of Barrett’s argument. We adhere to the presumption the trial court’s order is correct unless demonstrated otherwise by the appellant. (Powell, supra, 26 Cal.App.5th at p. 231) In the absence of Barrett’s demonstration the record establishes error, we must affirm. (Ibid.)

E.

Nonwaiver of Immunity from Suit

Barrett contends Selnek-is is amenable to suit due to the Tribe’s waiver of immunity. We disagree.

The burden to show Selnek-is’s waiver of immunity to suit is on Barrett. As the Miami Nation court held, “Once the entity demonstrates that it is an arm of the tribe, it is immune from suit unless the opposing party can show that tribal immunity has been abrogated or waived.” (2 Cal.5th at p. 236.) Here, the trial court noted Barrett “has failed to demonstrate any cognizable waiver of immunity.” The record supports this determination. Indeed, Barrett’s opening brief acknowledges he “does not dispute that Selnek-is’ Articles of Incorporation and Bylaws claim that the Tribe has bestowed upon [Selnek-is] the protection of the Tribe’s sovereign immunity through enactment of these two documents . . . .”

Selnek-is introduced the evidence Selnek-is has never had a relationship or agreement with Barrett or SSV. And Lopez’s declaration established that neither Selnek-is nor the Tribe has consented to be sued by Barrett or SSV. Thus, we agree with the trial court Selnek-is showed it has not waived its immunity to suit.

Barrett contends the Tribe’s constitution and corporation ordinance contradict and undermine Selnek-is’s claim to immunity from suit. We are not persuaded. As Barrett notes, the Tribe’s constitution is not part of the record in this case. We do not speculate about whether it contains anything that supports his argument. As to the Tribe’s corporation ordinance, it extends to tribal corporate entities the “power” to “sue and be sued, complain and defend,” in their corporate capacities. That tribal corporations have the power to engage in litigation does not mean Selnek-is or the Tribe has waived its immunity from suit. Instead, the Selnek-is articles of incorporation show Selnek-is and the Tribe intended to extend the Tribe’s immunity to suit to Selnek-is.

DISPOSITION

The judgments are affirmed. Respondents Selnek-is Tem-al, State of California, California Department of Tax and Fee Administration, Nicholas Maduros, Director, California Controller’s Office, Betty T. Yee, Controller, and California Alcoholic Beverage Control, Jacob Appelsmith, Director, shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

HOCH, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

ROBIE, J.