Filed 10/31/17; Certified for Publication 11/29/17 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                              DIVISION THREE


ROSE BROWN et al.,
         Plaintiff and Appellant,
                                                               A150374
v.
AUGUSTIN GARCIA et al.,                                        (Lake County
                                                               Super. Ct. No. CV415928)
         Defendants and Respondents.

         This action is between two groups of the Elem Indian Colony Pomo Tribe (the
Tribe), the “Brown faction” (plaintiffs) and the “Garcia Council” (defendants).
Plaintiffs sued the Garcia Council over allegedly defamatory statements published in a
notification that warned they would be disenrolled if the Tribe’s General Council found
them guilty of specified crimes. The trial court ruled the lawsuit was barred by sovereign
immunity and dismissed the complaint. We affirm.
                                               BACKGROUND
         This action arose against a decades-long backdrop of disputes over Tribal
leadership. In 2016 defendants disseminated an “Order of Disenrollment” (the Order)
that accused 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.’ ”



                                                          1
       Plaintiffs sued defendants for defamation and false light based on the allegations
of misdeeds described in the Order. The complaint stated that defendants “purport to be
the elected Executive Council of the Tribe,” but asserted they were unprotected by
sovereign immunity because they acted in their personal capacities outside the scope of
their tribal authority and “[t]his is not an internal tribal dispute or a membership dispute.”
Plaintiffs further alleged the tribal ordinance pursuant to which defendants published the
Order was invalid because it lacked the approval from the Bureau of Indian Affairs
required by the Tribe’s constitution.
       Defendants moved to quash the summons and complaint as barred by sovereign
immunity. They asserted the allegedly defamatory statements were made pursuant to
their lawful authority as tribal officials, which includes “culling from the active
membership voting list tribal members who are alleged to have conducted crimes against
the Tribe pursuant to tribal ordinance #GCORD08412.” Further, “Plaintiffs’ allegations
concern a non-justiciable intra-tribal matter upon which this court has no jurisdiction and
which should be resolved in the proper tribal forum, i.e. before Plaintiffs’ Tribal Council
per the Tribe’s ordinance. As such, the Court should not allow this matter to move
forward because it will require the Court to review and interpret tribal law, custom and
practice.” Accordingly, defendants contended, the Tribe’s sovereign immunity shielded
them from being sued in state court.
       In opposition, plaintiffs argued 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. 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. Rather, they argued, “Plaintiffs are simply asking that the Defendants, in
their individual capacities, be held accountable for their defamation of fellow
Californians.” Alternatively, plaintiffs asserted it was premature to dismiss the case
based on sovereign immunity in light of factual questions as to whether defendants acted
within their official or personal capacities when they issued the Order.


                                               2
       The court granted the motion to quash. It concluded defendants’ evidence
established they acted within the scope of their tribal authority in publishing the allegedly
defamatory Order and that plaintiffs failed to overcome that showing. “[T]he evidence
shows that the Tribe is a federally recognized Indian Tribe. Additionally, Defendants
have provided evidence that all named Defendants are tribal officials. Specifically,
Defendants provided a letter from Superintendent Troy Burdick from the U.S. Dept. of
the Interior, in which Superintendent Burdick states that all named Defendants are
recognized by the United States Government as the Executive Committee members for
purposes of a government-to-government relationship. Garcia also attests that he was
elected to tribal office in 2014 and currently serves as the Chairman pursuant to a 2014
tribal election, and that the other Defendants were acting under color of tribal authority
when the Ordinance was issued. As a result, there is evidentiary support for Defendants’
position that they were tribal officials at the relevant time.
       “In response, Plaintiffs dispute that Defendants are members of the Elem Tribe’s
federally recognized government. However, Plaintiffs provide no evidence in support of
their contention that Defendants are not tribal officials or were not tribal officials at the
relevant time. An unverified complaint may not be considered as supplying the necessary
facts. [Citation.] Accordingly, the record supports a finding that Defendants were tribal
officials at the time of the allegations.
       “Next, Defendants provide evidence that the Ordinance establishing a process for
disenfranchisement was put into effect in 2012 by the Elem Indian Colony, and is still in
effect as tribal law. And as discussed above, Defendants further provide evidence that
they were acting within the scope of their tribal authority when they determined that
Plaintiffs should be disenrolled from the Tribe pursuant to the Ordinance, for the reasons
stated in the allegedly defamatory document that is the subject of this lawsuit.
Consequently, Defendants’ evidence supports the conclusion that they were acting within
the scope of their tribal authority, on the Tribe’s behalf, when they issued the allegedly
defamatory statements.”


                                               3
       Turning to plaintiffs’ evidence, the trial court found it insufficient to rebut
defendants’ showing. “Plaintiff’s counsel . . . attests in her declaration that the
‘Constitution and Bylaws of the Elem Indian Colony’ (the ‘Constitution’) does not grant
tribal officials the right to publish criminal allegations against Tribal Members. Plaintiffs
further provide evidence that the Constitution states that any new rules regarding the loss
of membership must be approved by the Secretary of the Interior, and provide[] an email
from Superintendent Burdick stating that he has ‘no evidence that [the ordinance] has
been submitted to [the Office of the Interior] for approval.’ This purported evidence of
Superintendent Burdick’s statement is hearsay, and even if considered, it is
inconclusive.” The court further found plaintiffs’ evidence was insufficient to overcome
defendants’ showing that the Ordinance, although disputed, was in effect when the
alleged defamation occurred. “Accordingly, Plaintiffs have failed to show by
preponderance of the evidence that Defendants were acting outside the scope of their
official tribal capacities when they drafted and circulated the [Order], and thus all
jurisdictional criteria are met.”
       “In sum, the record before the Court shows that Plaintiffs’ two causes of action
arise from actions that Defendants took because of their official capacities as tribal
officials, namely, disenrolling Plaintiffs on the basis of their alleged violations of tribal
law. Plaintiffs do not provide sufficient evidence to meet their burden. Additionally, for
the Court to litigate the dispute, the Court would have to determine whether Defendants
were authorized to publish the document and disenroll Plaintiffs, which itself requires an
impermissible analysis of Tribal law and constitutes a determination of a non-justiciable
intra-tribal dispute. [Citations.] As a result, sovereign immunity applies.”
       Plaintiffs filed this timely appeal.
                                              DISCUSSION
                                      I. Legal Standards
       “On a motion to quash service of summons, the plaintiff bears the burden of
proving by a preponderance of the evidence that all jurisdictional criteria are met.
[Citations.] The burden must be met by competent evidence in affidavits and

                                                4
authenticated documents; an unverified complaint may not be considered as supplying
the necessary facts.” (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657–
658.) “In the absence of conflicting extrinsic evidence relevant to the issue, the question
of whether a court has subject matter jurisdiction over an action against an Indian tribe is
a question of law subject to our de novo review.” (Lawrence v. Barona Valley Ranch
Resort and Casino (2007) 153 Cal.App.4th 1364, 1369.) But “[w]hen the facts giving
rise to jurisdiction are conflicting, the trial court’s factual determinations are reviewed for
substantial evidence. [Citation.] Even then, we review independently the trial court's
conclusions as to the legal significance of the facts.” (CenterPoint Energy, Inc. v.
Superior Court (2007) 157 Cal.App.4th 1101, 1117.) We affirm a trial court's order if
correct on any theory. (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co.
(1997) 59 Cal.App.4th 6, 15–16.)
                                          II. Analysis
       Plaintiffs assert the court misapplied the law when it considered whether
defendants issued the alleged defamatory statements in the scope of their official
capacities and whether allowing the case to proceed in state court would interfere with
tribal administration. In their view, the only relevant facts are that they sued defendants
in their individual, not tribal, capacities, and sought relief only from them as individuals,
not from the Tribe. Plaintiffs also assert it was procedurally improper on a motion to
quash for the court to make factual determinations as to whether defendants made the
allegedly defamatory statements within the scope of their official authority. Rather, they
contend, any factual disputes should have been resolved by a jury or, at a minimum, by
the court under a summary judgment standard. None of these points have merit.
       We first address procedural contentions that it was improper for the court to make
evidence-based factual determinations and that, at a minimum, the court should have
assessed the evidence under a summary judgment standard. That is not the law.
       Because sovereign immunity deprives a court of subject matter jurisdiction,
California courts have authorized Indian tribes and their officials to specially appear and
invoke their immunity from suit by using a “hybrid motion to quash/dismiss.” (Boisclair

                                              5
v. Superior Court (1990) 51 Cal.3d 1140, 1144, fn. 1; Great Western Casinos, Inc. v.
Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1418. (Morongo Band).)
“ ‘Generally, in entertaining a motion to dismiss, the district court must accept the
allegations of the complaint as true, and construe all inferences in the plaintiff’s favor.
[Citation.] 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.” Morongo
Band, supra, 74 Cal.App.4th at pp. 1418, italics added, internal citations omitted; see
Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 7, fn. 8 [“when faced
with a conflict on the question whether the defendants have waived their sovereign
immunity, it is necessary and appropriate ‘to go beyond the pleadings and contract
language to consider the testimonial and documentary evidence’ ”].) In light of this
specific authority, plaintiffs’ reliance on cases that do not address tribal sovereign
immunity is unavailing. (See Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th
1426; R.E. Sanders & Co. v. Lincoln-Richardson Enterprises, Inc. (1980) 108
Cal.App.3d 71; Borsuk v. Appellate Division of the Superior Court. (2015) 242
Cal.App.4th 607.) Tribal sovereign immunity may be decided in a hybrid motion to
quash that takes into account factual assertions that bear on jurisdiction.
       Plaintiffs’ substantive argument is no more persuasive. They assert the court erred
in finding the litigation barred by sovereign immunity because the complaint seeks
damages only from the individual plaintiffs, not the Tribe, and because there is no
allegation the allegedly defamatory statements were made on the Tribe’s behalf.
Plaintiffs assert that these points are determinative. Here, too, the law does not support
their position.


                                              6
       Maxwell v. County of San Diego (9th Cir. 2013) 708 F.3d 1075 (Maxwell) states
the relevant principles. The plaintiffs alleged that paramedics from a tribal fire
department were grossly negligent in treating a gunshot victim, resulting in her death.
(Id. at pp. 1081, 1087.) The Ninth Circuit adopted and applied a “remedy-focused
analysis,” rejecting more “categorical” tests under which sovereign immunity extends to
tribal officials sued as individuals for acts done “in their official capacity and within the
scope of their authority” or that involved a policy or discretionary function. (Id. at pp.
1087–1088.) “Tribal sovereign immunity derives from the same common law immunity
principles that shape state and federal sovereign immunity. [Citations.] Normally, a suit
like this one—brought against individual officers in their individual capacities—does not
implicate sovereign immunity. [Citation.] The plaintiff seeks money damages ‘not from
the state treasury but from the officer[s] personally.’ [Citation.] Due to ‘the essential
nature and effect’ of the relief sought, the sovereign is not “ ‘the real, substantial party in
interest.’ ” (Ibid.) Applying this “ ‘remedy sought’ ” test, the court held sovereign
immunity did not apply because the lawsuit named the paramedics as individual
defendants and sought monetary damages for their negligence that would “come from
their own pockets, not the tribal treasury.” (Id. at p. 1089.)
       The Ninth Circuit clarified Maxwell in Pistor v. Garcia (9th Cir. 2015) 791 F.3d
1104 (Pistor). The plaintiffs in Pistor, “advantage” gamblers who employed legal
techniques to limit their play to casino games that statistically favor the player, were
detained and handcuffed at a tribal casino and their winnings were seized. The gamblers
sued the tribal police chief, the tribal gaming office inspector and the casino’s general
manager in their individual capacities for violating plaintiffs Fourth and Fourteenth
Amendment rights and under state tort law for battery, false imprisonment, conversion,
defamation, trespass to chattels and negligence. (Id. at pp. 1108–1109.)
        The Ninth Circuit applied Maxwell’s “remedy-focused” analysis and concluded,
as in Maxwell, that sovereign immunity did not shield the defendants from suit. But the
court also reinforced Maxwell’s caveat that sovereign immunity will nonetheless apply in
appropriate circumstances even though the complaint names and seeks damages only

                                               7
from individual defendants. It explained: “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.’ [¶] [Citations.] [¶] As
examples of such suits, Maxwell pointed to Cook, 548 F.3d 718, and Hardin v. White
Mountain Apache Tribe, 779 F.2d 476 (9th Cir.1985). [Citation.] . . . [In]
Hardin, sovereign immunity barred the plaintiff from litigating a case against high-
ranking tribal council members seeking to hold them individually liable for voting to
eject the plaintiff from tribal land. To hold otherwise, we ruled, would interfere with the
tribe’s internal governance. [Citation.] ‘Hardin was in reality an official capacity suit,’
barred by sovereign immunity, because the alternative, to “[h]old[ ] the defendants liable
for their legislative functions[,] would . . . have attacked “the very core of tribal
sovereignty.” ’ ” (Pistor, supra, 791 F.3d at p. 1113; see Kaw Nation ex rel. McCauley v.
Lujan (10th Cir. 2004) 378 F.3d 1139, 1143 [no subject matter jurisdiction over federal
court action asserting tribal judges were appointed in violation of tribal law]; see also
Longie v. Spirit Lake Tribe (8th Cir. 2005) 400 F.3d 586, 589 [no subject matter
jurisdiction over intra-tribal dispute concerning alleged transfer of tribal land.)
       Internal governance concerns were not implicated by the Pistor plaintiffs’
allegations that tribal officials and employees allegedly detained and stole from them, so
the court rejected the defendants’ invocation of tribal sovereign immunity under “‘the
general rule that individual officers are liable when sued in their individual capacities.’
[Citation.] So long as any remedy will operate against the officers individually, and not
against the sovereign, there is ‘no reason to give tribal officers broader sovereign
immunity protections than state or federal officers.’ ” (Pistor, supra, 791 F.3d at p. 1113;
accord, Lewis v. Clarke (2017) 137 S.Ct. 1285, 1289, __ U.S.__ [sovereign immunity of
tribe does not on its own bar individual-capacity damages against tribal employees for
torts committed within the scope of their employment].)
       Here, plaintiffs contend their lawsuit falls under the remedy-focused general rule
applied in Maxwell, Pistor and Lewis, and hence that the court erred in finding the action

                                               8
barred by sovereign immunity. We disagree. The wrongs alleged in those cases were
garden variety torts with no relationship to tribal governance and administration. In those
circumstances, sovereign immunity does not shield individually named tribal officers or
employees from state tort liability.
       This case is different. As the trial court noted, Maxwell and Pistor make clear that
the general rule is not dispositive if the lawsuit will encroach upon the tribe’s
sovereignty. (See Maxwell, supra, 708 F.3d at p. 1088.) Here, substantial evidence
established that defendants were tribal officials at the time of the alleged defamation and
that they were acting within the scope of their tribal authority when they determined that,
for the reasons stated in the allegedly defamatory Order of Disenrollment, plaintiffs
should be disenrolled from the Tribe pursuant to a validly enacted tribal ordinance. On
this record, which we have carefully reviewed, the trial court concluded that plaintiffs
sought to hold defendants liable for actions they took as tribal officials in pursuing
plaintiffs’ disenrollment from the Tribe on the basis of plaintiffs’ alleged unlawful acts.
The court further found that adjudicating the dispute would require the court to determine
whether tribal law authorized defendants to publish the Order and disenroll plaintiffs,
“which itself requires an impermissible analysis of Tribal law and constitutes a
determination of a non-justiciable inter-tribal dispute.”
       We agree. “ ‘A tribe’s right to define its own membership for tribal purposes has
long been recognized as central to its existence as an independent political community.’ ”
(Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1064 (Lamere), quoting Santa
Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) It is thus not dispositive here
that the complaint sought relief only from individual defendants. Despite the plaintiffs’
careful pleading, their action sought to hold defendants liable for their legislative
functions and is thus “in reality an official capacity suit” properly subject to sovereign
immunity. (Maxwell, supra, 708 F.3d at p. 1089, citing Hardin, supra, 779 F.2d 476.)
       While it may be true that, as plaintiffs assert, their suit does not ask the court to
take any actions regarding their disenrollment, the action seeks to assess liability for torts
tribal officials allegedly committed in effectuating that disenrollment. Notwithstanding

                                               9
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. This is so whether or not, as plaintiffs
assert (without reference to the record), some of the defendants are no longer members of
the Tribe’s governing body.
       Finally, plaintiffs assert the trial court “had a duty to allow them to conduct
discovery to assist in determining whether it had jurisdiction to proceed.” They have
supplied neither relevant authority nor cogent legal analysis to support this claim, so it is
forfeited. In any event, plaintiffs fail even to suggest what relevant evidence such
discovery might have produced. The court ruled correctly.
                                       DISPOSITON
       The judgment is affirmed.




                                              10
                                 _________________________
                                 Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




                            11
Filed 11/29/17

                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                    DIVISION THREE



ROSE BROWN et al.,
        Plaintiff and Appellant,
                                                   A150374
v.
AUGUSTIN GARCIA et al.,                            (Lake County
                                                   Super. Ct. No. CV415928)
        Defendants and Respondents.
                                                   ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION
BY THE COURT:
        The opinion filed in the above-entitled matter on October 31, 2017, was not
certified for publication in the Official Reports. For good cause, the request for
publication filed November 20, 2017, is granted.
        Pursuant to rule 8.1105(b) of the California Rules of Court, the opinion in the
above-entitled matter is ordered certified for publication in the Official Reports.




DATE:                                             _________________________P.J.




                                              1
Trial Court:                                    Lake County Superior Court




Trial Judge:                                    Honorable Richard C. Martin




Counsel:
Ceiba Legal, Little Fawn Boland for Plaintiffs and Appellants.
Duran Law Office, Jack Duran, Jr., Lyle D. Solomon for Defendants and Respondents.




                                            2
