Filed 11/8/13 Gabrielino-Tongva Tribe v. St. Monica Redevelopment CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


GABRIELINO-TONGVA TRIBE,                                             B238603

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC361307)
         v.

ST. MONICA DEVELOPMENT et al.,

         Defendants and Respondents.




         APPEAL from a judgment and order of the Superior Court of Los Angeles
County, Zaven Sinanian, Judge. Reversed.
         Lara & Ibarra and Delia Ibarra for Plaintiff and Appellant.
         Law Offices of Jonathan Stein and Jonathan A. Stein for Defendants and
Respondents.
         At some time in California’s distant past, the indigenous Tongva people of the Los
Angeles Basin were associated with the San Gabriel Mission and became known as
“Gabrielinos.” In 1994, the Gabrielino-Tongva people were recognized by the State of
California as “the aboriginal tribe of the Los Angeles Basin . . . .”1 Currently in
California there are several associations of descendants of this historic Native American
tribe.
         This appeal concerns two different groups of people claiming the right to control
one such association, the Gabrielino-Tongva Tribe (the “Tribe”). One of these two
factions (appellant) initiated this lawsuit against defendants (respondents); the other tribal
entity settled the claims against defendants. Defendants moved for summary judgment
based on that settlement. The trial court determined there was no triable issue of material
fact concerning the authority of the settling faction to act on behalf of the Tribe and
entered judgment for defendants. We determine there remain triable issues of material
fact preventing summary disposition of this matter. We therefore reverse the judgment
and the order granting respondents’ motion for summary judgment.


                   I. FACTUAL AND PROCEDURAL BACKGROUND


         In 2001, defendant Jonathan Stein was hired by the Tribe to help it become the
first Native American tribe to open a casino in Los Angeles County. Stein was appointed
Chief Executive Officer (CEO) of the Tribe, which utilized office space within Stein’s
Santa Monica law offices as its principal place of business.
         Stein incorporated Santa Monica Development Company (SMDC). SMDC
entered into a written agreement dated February 1, 2001, with the “Gabrielino-Tongva
Tribal Nation, a tribal sovereign for the Gabrielino aboriginal tribe of Los Angeles


         1
         They have not yet achieved federal recognition, although the Bureau of Indian
Affairs maintains official rolls of documented Gabrielino Indians.


                                              2
Basin,” for the purpose of pursuing the Tribe’s plans to own and operate a casino (the
Development Agreement).
       Although the Tribe had been in existence for some time, it did not officially elect
its first Tribal Council (Council) or governing board until October 2005. Samuel Dunlap,
Virginia Carmelo, Edgar Perez, Shirley Machado, Martin Alcala and Adam Loya were
elected to the Council. The Council was empowered to make all significant decisions
concerning the Tribe, including control and expenditure of tribal funds.
       In 2006, SMDC procured an investor, Libra Securities LLC (Libra), for the
Tribe’s casino project. Libra and the Tribe executed a Development Funding Agreement
intended to support the Tribe’s effort to develop one or more Las Vegas-style casinos in
Los Angeles County. In May 2006, Libra credited the Tribe with $2,150,000 in
investment funds.
       Disagreements between Stein and the Council arose during the summer of 2006.
In a September 9, 2006 meeting, Stein made several demands of the Council,2 which it
refused. In response, Stein hand-delivered a letter resigning as the Tribe’s CEO.
       The Council accepted Stein’s resignation, removed him as a signatory on its bank
accounts and relocated its principal place of business from Stein’s law offices to newly-
leased office space. The Council asked former state senator Richard Polanco to replace
Stein as CEO of the Tribe.
       After his termination, Stein sent a letter, which he admitted was not authorized by
the Council, to the entire Tribe membership announcing he had been fired and that his
“assistant, Barbara Garcia, is the Tribal Administrator . . . [who] keeps membership
records.”   He did not seek to return the membership records to the individual members
or to the Council; rather, Stein asked the members to write to the Council to express
support for him and his “Tribal Administration Office.” Stein also deleted all of the
Council members’ telephone numbers from the Tribe’s Web site, deactivated their e-

       2
          The demands included firing the Tribe’s general counsel, the designation of
Stein as sole signatory on the Tribe’s bank accounts and the removal of Dunlap from the
Council.

                                             3
mails and left his office number as the sole contact for the Tribe. Additionally, Stein
communicated with Wells Fargo Bank and Union Bank in an effort to freeze the Tribe’s
assets.
          The foregoing conduct led the Tribe to file a lawsuit against Stein and SMDC on
November 2, 2006 for misrepresenting their authority in an attempt to control the Tribe’s
finances and assets, undermining the Tribe’s efforts to seek federal recognition and to
develop a casino, and defaming members of the Council. The same day the Tribe filed its
complaint, Stein and SMDC sued the Tribe, each of the Council Members, the Tribe’s
general counsel, outside counsel and the newly appointment CEO and Libra—the sole
investor in the Tribe’s casino project. These two lawsuits, together with a third action
filed by one of the Tribe’s former federal lobbyists, were consolidated into one action.
          Shortly after Stein’s formal relationship with the Tribe was terminated and this
litigation commenced, Stein contacted Tribe members who had previously but
unsuccessfully run for positions on the Council inviting them to join a newly-created
group entitled the “Financial Oversight Committee” (FOC). He asked the FOC members
to support a recall of the Council members and suggested, if the recall were successful,
the FOC members could become Council members and thereby gain control over all of
the Tribe’s activities including the casino project.
          On November 18, 2006, Stein convened a group of the Tribe’s membership and
introduced them to the FOC. He told the members the Tribe owed him $2.7 million and
the Council had embezzled money from Libra and then fired Stein when he tried to stop
the embezzlement. Although Stein intended to call for a recall election at that meeting,
he acknowledged in his deposition3 no recall ever took place.


          3
         Respondents urge this court to disregard the Stein deposition, among other
documents, because this evidence was not submitted with the papers as specified by Code
of Civil Procedure section 437c, subdivision (c), but attached to related pleadings filed
with the court. We decline to do so. The trial court noted that all parties’ submission
contained procedural violations, but indicated it would nonetheless consider the motions
on the merits. Respondents themselves rely on the contents of the Stein declaration in
their appellate brief.

                                               4
       After this litigation commenced, certain members of the Tribe sent Stein pre-
printed “blue cards” demanding Stein return their tribal records. The blue cards read in
full: “Dear Mr. Stein, I demand you return all my Member Records immediately! You
are no longer affiliated with the Tribal Council. Forward my Member Records to. . . . .”
Thereafter the card provided space for the signatory’s name, address and signature. The
blue cards were addressed to “Law Offices of Jonathan A. Stein,” and included Stein’s
California State Bar number. The Tribe members who submitted the blue cards received
no immediate response from Stein.
       On December 18, 2006, an entity named “Gabrielino-Tongva Tribe” was
registered with the Secretary of State as an unincorporated association. Linda Candelaria
signed the form as a member of the FOC. Barbara Garcia, Stein’s legal assistant, was
listed as the registered agent for service of process.
       In the spring of 2007, some months after receiving the blue cards, Stein’s legal
assistant responded to the blue cards by mailing a “Return of Membership Records
Form,” on letterhead of the “Gabrielino-Tongva Tribe,” which informed those who made
the requests that they were no longer members of the Tribe. Under the certification, “I
have reviewed the membership records of the Gabrielino-Tongva Tribe, a California
Indian Tribe historically known as San Gabriel Band of Mission Indians,” the text read:
“I have enclosed the original membership records for the above-mentioned individual(s)
held by the Gabrielino-Tongva Tribe. I have returned the original membership records to
you at the address listed in your contact information. A copy of the membership
termination letter [i.e., blue card] has been kept for our records.” At the bottom of the
certificate, under the heading “Tribal Council,” appeared the names Linda Candelaria,
Bernie Acuna, Martha Gonzalez Lemos, Suzanne Rodriguez and Laurie Salse. The
designations “Chief Executive Officer: Jonathan Stein, St. Monica Development Co.,
LLC” and “Tribal Administrator: Barbara Garcia” also appeared at the foot of the letter.
       Thus, as of late 2006 or early 2007, there were two councils claiming to speak for,
and act on behalf of, the Gabrielino-Tongva Tribe. To avoid confusion in discussing
these two separate groups, we hereafter refer to the group represented by the Council

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members elected in 2005 as the “Dunlap Faction” (appellant) and the group represented
by the persons elected to the Council in 2007 as the “Candelaria Faction.”
       In March, 2007, Stein and the Candelaria Faction entered into an “Assumption and
Estoppel Agreement,” pursuant to which the Tribe agreed to be estopped from denying its
obligation to pay $2,700,897.65 to Stein and SMDC under the terms of the Development
Agreement.
       In July 2007, the Dunlap Faction filed the Tribe’s second amended complaint
(SAC), the operative pleading before us. This complaint stated claims for conversion,
breach of fiduciary duty, misappropriation of trade secrets, breach of confidence,
intentional interference with economic relationships, negligent interference with
economic relationships, breach of contract, breach of the implied covenant of good faith
and fair dealing, legal malpractice, violation of Penal Code section 502, subdivision (c)
and unfair competition. The Tribe sought injunctive and declaratory relief, as well as
unspecified damages.
       On October 30, 2007, Stein and SMDC entered into a Settlement and Release
Agreement with the Candelaria Faction (the “Settlement Agreement”), pursuant to which
the Tribe agreed to settle its claims against Stein and SMDC for $1,000. Candelaria
signed the agreement on behalf of the “Gabrielino-Tongva Tribe” and represented she
and the tribal entity had the authority to settle the claims.
       The Dunlap Faction learned about the foregoing settlement when Stein and SMDC
moved for entry of judgment pursuant to the Settlement Agreement, as provided in Code
of Civil Procedure section 664.6. In April 2008, the trial court granted the motion as it
pertained to the Candelaria Faction but found the Dunlap Faction had not settled its
claims concerning the Development Agreement and refused to dismiss the Dunlap
Faction’s complaint against Stein and SMDC. The court stated, “While this ruling
clarifies the positions of the SMDC/Tribe parties, it does not eliminate the on-going
claims and cross-claims of the [Dunlap Faction] and SMDC.”
       After further proceedings not directly relevant here, Stein and SMDC each moved
for summary judgment on the operative complaint, arguing they had settled all of their

                                               6
claims with the “Gabrielino-Tongva Tribe,” judgment had been entered by the trial court,
and all claims being pursued by the Dunlap Faction should therefore be dismissed. They
claimed the Dunlap Faction was a breakaway group called “GT Nation,” which “only
came into existence after Stein was terminated as an officer of the . . . Tribe . . . .” They
further maintained the spin-off occurred when the breakaway members sent in “blue
cards” as a “method of requesting that their . . . Tribe records be transferred to . . . [the]
Nation.”
         The Dunlap Faction opposed the motions. In declarations of its CEO and a
Council member, the Dunlap Faction denied it broke away from the Tribe and attested
that it was the tribal entity which contracted with SMDC, hired and fired Stein, filed the
instant lawsuit and had sole authority to prosecute and/or settle the lawsuit. The Dunlap
Faction submitted additional evidence contradicting Stein and SMDC’s evidence that its
members had terminated their membership in the Tribe and joined a newly formed group
and that the Council members elected in 2005 had abandoned their positions with the
Tribe.
         The trial court granted the summary judgment motions of Stein and SMDC. The
court referred to “a Tribal Council Resolution dated 10/30/07 on GT Tribe letterhead,
plainly providing that ‘the Tribal Council finds that it is in the best interests of the Tribe
that the legal action filed as . . . Los Angeles Superior Court Case No. BC-361307 . . . be
settled and dismissed. . . .’” The court noted that in opposition, “GT Tribe claims that the
settlement ‘does not relate to the tribal organization that is a party to this lawsuit,’” and
referred to the Dunlap Faction’s evidence that Stein had acknowledged in his deposition
the members of the Council of the Dunlap Faction had never been removed from office,
nor abdicated, abandoned, or resigned their positions, or that the tribal entity which they
governed had ceased to exist. The court concluded the Dunlap Faction “failed to submit
any evidence to raise a triable issue of fact as to why the settlement agreement, which
plainly calls for dismissal of GT Tribe’s action against SMDC and Stein, is not
determinative here.” The court entered judgment for respondents; this timely appeal
followed.

                                               7
                                     II. DISCUSSION


       “On appeal from a summary judgment, our task is to independently determine
whether an issue of material fact exists and whether the moving party is entitled to
summary judgment as a matter of law. [Citation.] ‘We independently review the parties’
papers supporting and opposing the motion, using the same method of analysis as the trial
court. Essentially, we assume the role of the trial court and apply the same rules and
standards.’ [Citation.] We apply the same three-step analysis required of the trial court.
First, we identify the issues framed by the pleadings since it is these allegations to which
the motion must respond. Second, we determine whether the moving party’s showing
has established facts which negate the opponent’s claim and justify a judgment in the
moving party’s favor. When a summary judgment motion prima facie justifies a
judgment, the third and final step is to determine whether the opposition demonstrates the
existence of a triable issue of material fact. [Citations.] In so doing, we liberally
construe the opposing party’s evidence, strictly construe the moving party’s evidence,
and resolve all doubts in favor of the opposing party. [Citations.]” (Hutton v. Fidelity
National Title Company (2013) 213 Cal.App.4th 486, 493-494.)
       Here, Stein and SMDC contended they were entitled to judgment as a matter of
law because the tribal entity which sued them entered into a written agreement settling all
its claims against them. In support of this contention, respondents submitted the
Settlement Agreement executed by Candelaria on behalf of the Tribe, together with the
Council resolution which approved the settlement and release of claims. They argued
that as a result of the settlement, there were no pending causes of action for appellant to
prosecute.
       While the Dunlap Faction did not dispute that the Candelaria Faction executed a
settlement agreement purporting to settle the SAC on behalf of the “Gabrielino-Tongva
Tribe,” it disputed the authority of Candelaria and the Candelaria Faction to act on behalf
of the plaintiff in the SAC: “Any such settlement does not relate to the tribal
organization that is a party to this lawsuit.” To support its position, appellant submitted

                                              8
the declaration of Sam Dunlap, Chairman of the Dunlap Faction’s Council, who attested
to the duly elected and acting members of the governing body of the Tribe—Candelaria
was not among them. Appellant also referred to Stein’s deposition in which he
acknowledged the Dunlap Faction’s Council members never submitted their resignations,
nor were recalled from office. This contradicted respondents’ position that the Dunlap
Faction had ceased to serve as the Tribe’s governing board, a necessary prerequisite to
the lawful election of the Candelaria Faction; the supposed successor to the Dunlap
Faction.
       The record on appeal contains evidence to support the parties’ respective positions
regarding the authority of the Candelaria Faction to act on behalf of the plaintiff in this
lawsuit. That evidence is rife with disputed issues of material fact. Because the evidence
concerning the Candelaria Faction’s authority to settle the claims brought against Stein
and SMDC was disputed, respondents did not meet their burden on their motions for
summary judgment.4




       4
          Respondent’s fallback argument is, even if the trial court erroneously granted
summary judgment, the appeal should be dismissed because appellant’s appeal should be
from the 2008 order granting the motion made pursuant to Code of Civil Procedure
section 664.6 and the time to pursue such an appeal has long expired. However,
respondents acknowledge the order made pursuant to section 664.6 did not dismiss the
SAC. Indeed, the trial court found the Dunlap Faction had not settled its claims and
expressly stated that its finding “did not eliminate [those] on-going claims . . . .”
Appellant had no reason to appeal an order or judgment that was not entered against it.
(Code Civ. Proc, § 902 [allowing appeal only for an “aggrieved” party].) Appellant’s
appeal is timely in that it is properly from the order granting an opposing party’s motion
for summary judgment.

                                              9
                                   III. DISPOSITION


      The judgment and the order granting respondents’ motion for summary judgment
are reversed. Appellant is to recover its costs on appeal from respondents.
                           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           KUMAR, J.*


We concur:




      TURNER, P. J.




      MOSK, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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