Cosentino v. Fuller

BENEDICT COSENTINO,

Plaintiff and Appellant,

v.

STELLA FULLER et al.,

Defendants and Respondents.

No. G050923

(Super. Ct. No. MCC1300396)

California Courts of Appeal

Fourth Appellate District

Division Three

Filed June 25, 2015

ORDER FURTHER MODIFYING OPINION;

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, as modified by the order filed on June 22, 2015, is hereby FURTHER MODIFIED as follows:

1.  On page 7 of the opinion, the earlier modification order deleted all of the original text of footnote number 1 and replaced it with new text, that new text is now modified to read as follows rather than as it read in the earlier modification order:

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. 

2.  On page 10 of the opinion, the earlier modification order deleted the last sentence of the first full paragraph on that page and replaced that sentence with a new sentence and citations to two cases, that sentence and the citations are now modified to read as follows rather than as they read in the earlier modification order and the original sentence that was deleted by the earlier modification order shall remain deleted:

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.  As another court has explained, 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.?  (Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1064; see Long v. Chemehuevi Indian Reservation (1981) 115 Cal.App.3d 853, 857.)

3.  On page 11 of the opinion, the earlier modification order add two additional, new paragraphs after the second paragraph on that page, those two new paragraphs are now modified to read as follows rather than as they read in the earlier modification order:

To avoid individual liability for their actions, Defendants repeatedly claim Cosentino sued them in their official rather than individual capacities.  Defendants therefore reason we must treat Cosentino?s complaint 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 complaint to allege claims he did not assert.  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 clearly 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 they 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 sought monetary damages against Defendants only 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 those of the individual rather than the sovereign.  (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. 

4.  On page 16 of the opinion, the earlier modification order added a new footnote number 4, the text of that new footnote is now modified to read as follows rather than as it read in the earlier modification order:

     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 decline to consider an issue Defendants raise for the first time in a rehearing petition.  (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.

5.  On page 19 of the opinion, the earlier modification order added a new footnote number 5, the text of that new footnote is now modified to read as follows rather than as it read in the earlier modification order:

     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.  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? contrary assertion is unsupported by any authority.

These further modifications do not change the judgment.

Unless further modified by this order, the modifications made by the earlier modification order shall be made as described in that order.  Similarly, the rehearing petition and request for depublication remain denied for the reasons set forth in that earlier order.

     ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.