Modification: Acres v. Marston

JAMES ACRES,

Plaintiff and Appellant,

v.

LESTER MARSTON et al.,

Defendants and Respondents.

No. C089344

(Super. Ct. No. 34-2018-00236829-CU-PO-GDS)

California Courts of Appeal

Third Appellate District

(Sacramento)

Filed December 10, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of Sacramento County, David I. Brown, Judge. Reversed in part and affirmed in part.

James Acres, in pro. per., for Plaintiff and Appellant.

Forman & Associates, George Forman, Jay B. Shapiro and Margaret C. Rosenfeld for Defendants and Respondents Arla Ramsey, Anita Huff, Thomas Frank, Lester Marston, Rapport and Marston, David Rapport, Darcy Vaughn, Ashley Burrell, Cooper DeMarse and Kostan Lathouris.

Lerch Sturmer, Jerome N. Lerch, Debra Sturmer and Nicole A. Deterding for Defendants and Respondents Boutin Jones, Inc., Michael Chase, Daniel Stouder and Amy O'Neill.

Berman Berman Berman Schneider & Lowary and Howard J. Smith for Defendants and Respondents Janssen Malloy LLP, Megan Yarnall and Amelia Burroughs.

Gordon Rees Scully Mansukhani, Kevin W. Alexander and Allison L. Jones for Defendants and Respondents Lester Marston, Ashley Burrell, Cooper DeMarse and Darcy Vaughn.

THE COURT:

It is ordered that the opinion filed herein on November 18, 2021, be modified as follows:

On page 36, the following section titled "IV. Leave to Amend" is added to proceed after the section entitled "B. Prosecutorial and Similar Immunity for Government Attorneys":

IV

Leave to Amend

Lastly, we turn to Acres's contention that the trial court wrongly granted respondents' motions to quash without giving him leave to amend his complaint. Acres asserts that he should be granted leave to amend his complaint for five reasons. First, he argues that he should have leave to amend his complaint "to attack Respondents' entitlement to sovereign immunity." Second, he asserts that his "complaint could be amended to name Blue Lake Casino as a defendant," which, he states, might not have sovereign immunity. Third, he contends his complaint "could be amended" to add causes of action under the Racketeer Influenced and Corrupt Organizations Act (RICO). In support, he cites a federal district court decision that allowed a plaintiff to pursue a RICO claim against several defendants who had unsuccessfully claimed sovereign immunity. (JW Gaming Development, LLC v. James (N.D. Cal., Oct. 5, 2018, No. 3:18-CV-02669-WHO) 2018 WL 4853222 at pp. *3-*4, aff'd (9th Cir. 2019) 778 Fed. Appx. 545.) Fourth, he asserts the "complaint could be amended to show Judge Marston negotiated with the State of California on Blue Lake's behalf while he presided over Blue Lake v. Acres [Bonusing]." He then claims that "[t]here is a reasonable possibility the inclusion of these allegations will defeat Respondents' claims of judicial immunity." And fifth, he contends the "complaint could be amended to allege criminal causes of action," which, he argues, "would not be protected by tribal sovereign immunity."

But of all these claims, we find it necessary to address only one---the fourth. Acres, again, asserts that "Respondents' claims of judicial immunity" might be defeated if his complaint were amended to note that Judge Marston represented the Tribe at the time of Blue Lake v. Acres Bonusing. We disagree. As discussed above, even if Judge Marston had a conflict of interest and a corrupt intent when he presided over Blue Lake v. Acres Bonusing, that would still not be ground for finding him liable for damages. (See Stump, supra, 435 U.S. at pp. 355-356 [judges " 'are not liable to civil actions for their judicial acts, even when such acts . . . are alleged to have been done maliciously or corruptly' "].) Because Acres's proposed amendment would thus be futile in overcoming Judge Marston's claim of judicial immunity, we decline to find that he should be granted leave to amend his complaint in this respect. (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, 848 [" ' "[L]eave to amend should not be granted where . . . amendment would be futile." ' "].)

All Acres's remaining contentions---the first, second, third, and fifth---appear to be directed toward overcoming respondents' claimed entitlement to sovereign immunity. But because, for the reasons already discussed, we agree that respondents are not entitled to sovereign immunity, we find it unnecessary to address these arguments here.

There is no change in the judgment. The petition for rehearing is denied.

BY THE COURT:

\s\

BLEASE, Acting P. J.

We concur:

\s\

MAURO, J.

\s\

DUARTE, J.