Cosentino v. Fuller

BENEDICT COSENTINO,

Plaintiff and Appellant,

v.

STELLA FULLER et al.,

Defendants and Respondents.

G050923

(Super. Ct. No. MCC1300396)

California Courts of Appeal

Fourth Appellate District

Division Three

Filed June 22, 2015

ORDER (1) MODIFYING OPINION;

(2) DENYING REHEARING; AND

(3) DENYING DEPUBLICATION; NO CHANGE IN JUDGMENT

On the court?s own motion, it is ordered the opinion filed in the above-entitled matter on May 28, 2015, is hereby MODIFIED as follows:

1.  On page 3, the final sentence of the partial paragraph at the top of the page, starting with ?Sovereign immunity prevents us from inquiring,? replace the word ?using? with the word ?abusing? and insert ?for their own personal benefit? at the end of the sentence, so the sentence reads as follows:

Sovereign immunity prevents us from inquiring into the reliability of information Defendants may have relied upon in revoking Cosentino?s license or any other errors they may have made, but it does not prevent inquiry into whether Defendants exceeded their authority by abusing their official positions to intentionally harm Cosentino for their own personal benefit.

2.  On page 6, the first sentence of the fourth paragraph, starting with ?In March 2013, Cosentino filed this action,? insert the words ?in their individual capacities? between the words ?Defendants? and ?alleging,? so the sentence reads as follows:

In March 2013, Cosentino filed this action against Defendants in their individual capacities, alleging claims for (1) intentional interference with prospective economic advantage; (2) negligent interference with prospective economic advantage; (3) intentional interference with the right to pursue a lawful occupation; (4) violation of Civil Code section 52.1; (5) intentional infliction of emotional distress; and (6) negligent infliction of emotional distress. 

3.  On page 7, delete the text of footnote number 1 and replace it with the following:

Cosentino contends he did not name the Gaming Commission or the Pechanga Band as defendants in this action because he anticipated they would assert tribal sovereign immunity.  Instead, he sought to arbitrate his claims against the Gaming Commission and the Pechanga Band under the Tribal-State Compact.  When they refused, Cosentino filed a petition in federal court to compel them to arbitrate his claims.  The U.S. District Court denied the petition, and Cosentino?s appeal from that decision is pending in the Ninth Circuit Court of Appeals.  ~(Open Brief p.11)~

4.  On page 10, the last sentence of the first full paragraph, starting with ?Sovereign immunity, however, may limit,? delete that entire sentence and replace it with the following:

Public Law 280 therefore grants California courts jurisdiction over civil disputes involving individual tribal members, but it does not grant jurisdiction over an Indian tribe.  (Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1064 [Public Law 280 ??seems to have been primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens. . . .?  [Citation.]  Its effect is therefore ?to grant jurisdiction over private civil litigation involving reservation Indians in state court.?  . . .  [¶]  It is very clear that Public Law 280 does not provide jurisdiction over disputes involving a tribe?]; Long v. Chemehuevi Indian Reservation (1981) 115 Cal.App.3d 853, 857.)

5.  On page 10, the second paragraph, starting with ??Under federal law, an Indian tribe,?? add the following sentence as the first sentence in the paragraph:

Sovereign immunity, however, may limit the reach of state law, including state tort law.

6.  On page 11, after the second paragraph, starting with ?An official?s commission of a tort,? insert the following paragraphs:

To avoid individual liability for their actions, Defendants repeatedly characterize Cosentino as suing them in their official rather than individual capacities.  According to Defendants, we must treat this action as an action against the Gaming Commission or the Pechanga Band because Cosentino based his claims on official actions Defendants took as members of the Gaming Commission.  Defendants, however, may not recast Cosentino?s claims.  The claims belong to Cosentino and it is for him to decide what claims to allege, against whom to allege them, and in what capacity to name Defendants.  Defendants may argue Cosentino?s allegations do not state a claim against them in their individual capacity or that the allegations establish a defense to the claims, but Defendants may not change Cosentino?s allegations.

Cosentino unmistakably alleges all claims against Defendants in their individual capacities on the theory Defendants abused and exceeded their official authority as members of the Gaming Commission, and therefore are individually liable and not entitled to the protection of sovereign immunity.  Cosentino did not name the Gaming Commission or the Pechanga Band as a defendant, and he did not request reinstatement or any other relief against those entities.  Instead, Cosentino solely sought monetary damages against Defendants in their individual capacities.  As explained above, when an official acts in a manner that exceeds or conflicts with his or her valid authority, the official?s actions are considered individual rather than sovereign actions.  (See, e.g., Turner, supra, 82 Cal.App.4th at p. 1055.)  Accordingly, we focus on the standards for determining whether a tribal official acted in his or her official capacity and within the scope of his or her official authority to determine whether Defendants are entitled to sovereign immunity protection.  Defendants? reliance on cases and other authority addressing how and when sovereign immunity applies to an Indian tribe is misplaced and we disregard those authorities. 

7.  On page 16, after the first full sentences at the top of the page, starting with ?Defendants also failed to present any authority,? add the following new footnote number 4:

⁴      In their rehearing petition, Defendants for the first time contend the Gaming Commission had authority to revoke Cosentino?s license without cause as part of the Tribe?s inherent sovereign authority over tribal gaming licenses.  We refuse to consider an issue Defendants raise for the first time in a rehearing petition absent extraordinary circumstances justifying the failure to raise the issue earlier.  (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1230, fn. 5; see People v. Holford (2012) 203 Cal.App.4th 155, 159, fn. 2 [?it is ?too late to urge a point for the first time in a petition for rehearing, after the case ha[s] been fully considered and decided by the court upon the points presented in the original briefs??].)  Cosentino?s opening brief repeatedly argued the Gaming Commission?s authority to revoke his license was limited to the specific grounds identified in the IGRA, the Tribal-State Compact, and the Pechanga Ordinance.  Defendants provide no explanation why they did not raise this issue in their respondent?s brief.

8.  On page 16, the last sentence of the partial paragraph at the top of the page, beginning with ?Accordingly, as in Turner,? add the words ?at this stage of the proceedings? to the end of the sentence, so the sentence reads as follows:

Accordingly, as in Turner, Cosentino?s allegations and evidence that Defendants exceeded their authority by revoking his license without cause defeat Defendants? claim of sovereign immunity at this stage of the proceedings.

9.  On page 19, after the last sentence of the first full paragraph, starting with ?To the contrary, the law withholds sovereign immunity,? add the following new footnote number 5:

⁵      In their rehearing petition, Defendants contend sovereign immunity for tribal officials is absolute, and therefore applies even when tribal officials act maliciously with the intent to harm someone.  ~(Rehearing Petition pp. 19-26)~  This contention, however, ignores Turner?s statement that ?[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, supra, 82 Cal.App.4th at p. 1055.)  If an immunity may be forfeited based upon the holder?s motive or purpose, the immunity is not absolute.

Defendants similarly argue their motivations in revoking Cosentino?s license are irrelevant.  According to Defendants, the Great Western Casinos court applied sovereign immunity to dismiss intentional tort claims against tribal officials even though ??[t]he tribal council members? alleged motivations for these actions were plainly illegal and not expressly authorized under applicable law.??  ~(Rehearing Petition pp. 21 & 22)~  The Great Western Casinos decision, however, does not include this quote Defendants attribute to it and we have been unable to find that quote in any other reported case.  Moreover, this rule also would conflict with Turner?s statement that a tribal official may forfeit immunity by acting out of personal interests.

10.      On page 19, the first sentence of the second full paragraph, starting with ?Although Defendants cite several cases to support their contention,? delete the phrase ?Defendants fail? between the works ?immunity? and ?to discuss,? and replace them with the words ?Defendants? brief fails? so the sentence reads as follows:

Although Defendants cite several cases to support their contention the trial court properly dismissed Cosentino?s claims based on sovereign immunity, Defendants? brief fails to discuss or even cite Turner, the only analogous factual situation involving a claim of sovereign immunity by tribal officials who allegedly exceeded the scope of their authority by engaging in intentional misconduct designed to harm the plaintiff.

11.      On page 19, the second sentence of the second full paragraph, starting with ?The cases Defendants cite are readily distinguishable,? delete the sentence and replace it with the following sentence:

The cases Defendants cite predate Turner and are readily distinguishable because they do not address claims involving allegations that tribal officials engaged in intentional misconduct for their own benefit.

These modifications do not change the judgment.

The petition for rehearing filed by defendants and respondents is DENIED.  Defendants contend Government Code section 68081 requires us to grant rehearing to address Public Law 280?s application to this case.  Government Code section 68081, however, only requires rehearing when an appellate court ?renders a decision in a proceeding . . . based upon an issue which was not proposed or briefed by any party to the proceeding.?  ?The parties do not ?have a right under section 68081 to submit supplemental briefs or be granted a rehearing each time an appellate court relies upon authority or employs a mode of analysis that was not briefed by the parties.??  (Mark v. Spencer (2008) 166 Cal.App.4th 219, 228, fn. 4.)  Public Law 280?s application to this case is not an issue on which we based the opinion.  We cited that law merely as preliminary background.  The issue we decided was whether sovereign immunity applied to protect Defendants from plaintiffs? claims, and we decided that issue based on Turner v. Martire (2000) 82 Cal.App.4th 1042, and the other cited cases addressing sovereign immunity for tribal officials.  Defendants were given and full and fair opportunity to brief and argue that issue and those authorities.  The remainder of the rehearing petition is an attempt to reargue the merits of the case that likewise does not warrant rehearing.

Defendants? request to depublish the opinion also is DENIED.  A depublication request is properly directed to the Supreme Court.  (Cal. Rules of Court, rule 8.1125.)  A request that we depublish our own opinion is essentially a request that we reconsider our decision to publish the opinion.  We decline to do so.

     ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.