2012-00123782-CU-CD

Rosa Cervantes vs. JTS Communities, Inc.

Nature of Proceeding: Motion for Leave to Propound Discovery

Filed By: Van Dyke, Glen A.

Plaintiff’s Motion for Leave to Propound Discovery is granted.

Defendants are alleged to be subcontractor’s who constructed the plaintiffs’ homes.

Defendants Blue Lake Rancheria et al. have filed a motion to quash service of
summons and complaint that is set for hearing on November 5, 2013. Plaintiff seeks
to conduct pre-hearing discovery on the issue of personal jurisdiction so that she can
obtain evidence to oppose the motion to quash.

The Blue Lake Defendants’ motion to quash service of the summons is brought on the
grounds that Blue Lake Rancheria, Blue Lake Housing Authority, and related
individuals, are not proper defendants in this matter, that this Court lacks jurisdiction
over them because they are immune from suit under the Doctrine of Tribal Sovereign
Immunity. Plaintiff contends that the Blue Lake Housing Authority is in fact a business
owned by defendants Sweigart and Carter under a “rent-a-tribe” scheme, or an instrument used by the Rancheria and Sweigart/Carter to operate a joint venture for
non-tribal purposes, facts which would cause Blue Lake Rancheria, the Blue Lake
Housing Authority, and Eric Ramos to be subject to the jurisdiction of this court.
Plaintiff further contends, among other theories of liability, that Blue Lake Rancheria
and Blue Lake Housing Authority entered into a merger agreement with JTS
Communities, Inc, in which they agreed to accept the liabilities of non-tribal
partnerships for liability arising out of their construction work on non-tribal land.

Pre-hearing discovery is allowable to test whether sovereign immunity attaches to the
activities of those who claim it, and whether, even if it attaches, the defense has been
waived.

California courts have adopted the Federal procedural approach to discovery when it is
requested when faced with a claim of sovereign immunity. The court permits discovery
and fact finding to allow for sufficient pretrial factual and legal determinations to satisfy
the court of its authority to hear the case. Warburton/Buttner v. Superior Court (4th Dist
2002) 103 Cal.App.4th 1170, 1181,citing Great Western Casinos, Inc. v. Morongo
Band of Mission Indians (1999) 74 Cal.App.4th 1407,1417-1418 and other Federal and
California
cases. “Facts that are normally within the knowledge of corporate, or in this case,
tribal, officers relating to jurisdiction issues, are ordinarily subject to discovery. The
1880 Corporation v, Superior Court (1962) 57 Cal.2d 840, 843.” Id. at 1191.
While it is limited, it is permitted to the extent it goes to the existence of tribal
immunity. Those issues include, inter alia, whether the tribe or the separate business
entities expressly waived the immunity, thus conferring subject matter jurisdiction on
the state court. C&L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Ohio (2001)
532 U.S. 411,418.

The Court rejects defendants’ narrow reading of the case of Warburton/Buttner v
Superior Court (2002) 103 Cal.App.4th 1170, 1181 and finds that this case is authority
for the requested pre-hearing discovery.

The Court declines to rule on the evidentiary objections on the ground this is not an
evidentiary motion but a motion to conduct discovery.

The hearing date of the Motion to Quash is continued for a period of at least 60 days to
a date to be agreed upon after meeting and conferring and thereafter informing the
court clerk of the new date. The opposition and reply to the motion to quash shall be
filed and served pursuant to the CCP 1005(b) timeline tied to the new hearing date. A
trial court has the discretion to continue the hearing on a motion to quash service of
summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on
jurisdictional issues. HealthMarkets, Inc. v. Superior Court (2009) 171 Cal. App. 4th
1160, 1173.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.