Acres Bonusing, Inc v. Marston

• Court: District Court, N.D. California
• Decided: April 15, 2020
• Docket: 3:19-cv-05418
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ACRES BONUSING, INC, et al., Case No. 19-cv-05418-WHO

8 Plaintiffs, ORDER GRANTING MOTIONS TO DISMISS; DENYING ANTI-SLAPP 9 v. MOTIONS AND MOTION TO STRIKE ANTI-SLAPP MOTIONS AS MOOT 10 LESTER MARSTON, et al., Re: Dkt. Nos. 29, 30, 31, 32, 33, 35, 38, 42, Defendants. 11 50

13 Plaintiffs James Acres and Acres Bonusing, Inc. (“ABI”) bring this malicious prosecution 14 action against multiple lawyers, law firms, and court personnel who were involved in a previous 15 contractual fraud case filed against plaintiffs by Blue Lake Casino & Hotel (“Blue Lake Casino”) 16 in Blue Lake Rancheria Tribal Court. They sue three sets of defendants: (i) law firm Boutin Jones, 17 Inc., and associated individual attorneys1, that filed the initial complaint in tribal court on behalf of 18 Blue Lake Casino (hereinafter the “Boutin Jones” defendants); (ii) law firm Janssen Malloy LLP, 19 and associated individual attorneys2, that replaced Boutin Jones as attorneys for Blue Lake Casino 20 (hereinafter the “Janssen Malloy” defendants) (Boutin Jones and Janssen Malloy defendants are 21 collectively “Attorney Defendants”); and (iii) Blue Lake Tribal Court Chief Judge Lester Marston, 22 Court Clerk Anita Huff, two elected tribal officials3, law firm “Rapport and Marston” and 23 24

25 1 Michael Chase, Daniel Stouder, and Amy O'Neill.

26 2 Megan Yarnall and Amelia Burroughs.

27 3 Blue Lake Rancheria elected Vice Chair/Tribal Administrator/Tribal Associate Judge/Blue Lake 1 associate tribal judges/attorneys4 (hereinafter the “Blue Lake Defendants”). 2 Before me are seven dispositive motions: motions to dismiss and motions to strike for 3 being sued for conduct protected by California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 4 425.16, filed by each of the three sets of defendants as well as a motion to strike the anti-SLAPP 5 motions by plaintiffs. For the reasons set forth below, I GRANT the motions to dismiss as to all 6 three sets of defendants [Dkt. Nos. 29, 32, 33] on grounds of tribal sovereign immunity. Because I 7 am granting the motion to dismiss on this basis, I need not address defendants’ failure to state a 8 claim argument. I DENY the anti-SLAPP motions [Dkt. Nos. 30, 31, 50] and motion to strike the 9 anti-SLAPP motion [Dkt. No. 38] as moot.5 10 BACKGROUND 11 I. FACTUAL BACKGROUND 12 The Blue Lake Rancheria is a federally recognized Tribal Nation in Humboldt County, 13 California, and is organized under the Constitution of the Blue Lake Rancheria. Complaint 14 (“Compl.”) [Dkt. No. 1] ¶ 9. The Blue Lake Tribal Court, which is not named as a defendant in 15 this action, is an established judicial arm of the Tribe. Id. ¶ 11. 16 Acres was the owner of ABI, a Nevada gaming company. Compl. ¶ 8. In 2010, Blue Lake 17 Casino and Acres negotiated an agreement whereby Blue Lake Casino purchased an iSlot gaming 18 system from ABI. Id. ¶ 44. In 2015, a dispute arose between them regarding the return of a 19 $250,000 advance deposit. Id. ¶¶ 48-52. In January 2016, Boutin Jones filed a complaint in Blue 20 Lake Tribal Court on behalf of Blue Lake Casino against ABI for contract-based claims and 21 against Acres personally for fraudulent inducement. Id. ¶ 5; see also id., Ex. 1 (underlying 22 complaint in Blue Lake Casino & Hotel v. Acres et al., Blue Lake Tribal Court Case No. 15- 23 1215IJM) (hereinafter “Blue Lake Casino v. Acres”). 24

25 4 David Rapport, Ashley Burrell, Cooper DeMarse, Darcy Vaughn, and Lathouris Kostan.

26 5 Boutin Jones’ motion to join and adopt Janssen Malloy’s opposition to plaintiffs’ motion to strike the anti-SLAPP motion [Dkt. No 42] is DENIED as moot. Boutin Jones’ request for 27 judicial notice of documents related to its anti-SLAPP motion [Dkt. No. 30-2] and plaintiffs’ 1 Boutin Jones represented Blue Lake Casino in tribal court until February 2017, when 2 Janssen Malloy substituted into the case to serve as counsel for Blue Lake Casino. Compl. ¶¶ 27- 3 29, 111. Blue Lake Rancheria Tribal Court Chief Judge Marston was the original presiding judge 4 until December 2016 when he voluntarily recused himself and Justice James N. Lambden, a 5 retired justice from the California Court of Appeals, replaced him. Id. ¶¶ 16, 31, 104. 6 While the tribal court case was pending, Acres filed two federal court actions asserting that 7 the tribal court lacked jurisdiction over him. On August 10, 2016, I dismissed his initial federal 8 action for lack of subject matter jurisdiction because he failed to exhaust tribal remedies. Acres v. 9 Blue Lake Rancheria Tribal Court, No. 16-CV-02622-WHO, 2016 WL 4208328, at *4 (N.D. Cal. 10 Aug. 10, 2016) (hereinafter “Acres I”). The following month, Acres and ABI filed another suit 11 arguing that although they did not exhaust tribal remedies, the bad faith exception applies because 12 Judge Marston did not disclose his conflicts of interest and recuse himself. Acres v. Blue Lake 13 Rancheria, No. 16-CV-05391-WHO, 2017 WL 733114, at *1 (N.D. Cal. Feb. 24, 2017) 14 (hereinafter “Acres II”). After granting limited discovery on the issue of bad faith, I dismissed the 15 second federal action for failure to exhaust tribal remedies, which was affirmed by the Ninth 16 Circuit on June 30, 2017. Acres v. Blue Lake Rancheria, 692 F. App’x 894 (9th Cir. 2017).6 17 The underlying tribal court case continued. In July 2017, Justice Lambden issued an order 18 granting Acres summary judgment and dismissing him from the suit. Compl. ¶ 5 & Ex. 2. In 19 August 2017, Justice Lambden dismissed the suit in its entirety. Id. ¶ 5 & Ex. 3. Because no 20 notice of appeal was timely filed according to tribal law, Acres and ABI contend that ABI’s claims 21 for wrongful use of civil proceedings are ripe and that the statute of limitations has not expired. 22

23 6 On January 9, 2020, Acres filed a discovery dispute statement regarding his 118 requests for production of documents identified in Judge Marston’s billing records, which were produced in 24 Acres II. Plaintiffs’ Discovery Dispute Statement [Dkt. No. 35]. On January 10, 2020, the Blue Lake Defendants objected to this discovery because they have raised a threshold challenge to this 25 court’s jurisdiction over them and argued that the requests go far beyond jurisdictional discovery. Defendants’ Discovery Dispute Statement [Dkt. No. 36]. In their February 3, 2020 joint 26 stipulation, parties indicated that although the dispute was not resolved, the Blue Lake Defendants have told plaintiffs that “Blue Lake Rancheria may shortly provide evidence [that] Blue Lake 27 wishes to share its sovereign immunity with Defendants.” Stipulated Rescheduling of Threshold 1 Id. ¶ 5. 2 On July 13, 2018, Acres filed a malicious prosecution action in Sacramento County 3 Superior Court, Acres v. Marston, Case No. 34-2018-00236829, that he concedes is substantially 4 similar to the action before me. Compl. ¶ 32 n.5. The first seven claims are virtually identical to 5 the seven causes of action Acres unsuccessfully asserted against the same defendants on the same 6 facts in state court. Id. These seven causes of actions are: (i) wrongful use of civil proceedings; 7 (ii) aiding and abetting wrongful use of civil proceedings; (iii) conspiracy to commit wrongful use 8 of civil proceedings; (iv) breach of fiduciary duty; (v) aiding and abetting breach of fiduciary duty; 9 (vi) constructive fraud; and (vii) aiding and abetting constructive fraud.7 10 The only material differences between Acres’ state court complaint and this federal action 11 are that ABI was not a party to the former and that this action asserts an eighth cause of action 12 based upon the same facts under the Racketeer Influenced and Corrupt Organizations (“RICO”) 13 Act. Almost all of the factual assertions about the defendants’ respective roles in the underlying 14 tribal action are identical between the two complaints, except for the few added assertions 15 plaintiffs make based on a declaration filed by defendants in the state court action. See, e.g., 16 Compl. ¶¶ 73, 93.8 17 On February 11, 2019, the Sacramento County Superior Court granted motions to dismiss 18 as to all three sets of defendants and found the anti-SLAPP motions moot. See Acres v. Marston, 19 No. 34-2018-00236829, 2019 WL 8400827 (Cal. Super. Feb. 11, 2019); Acres v. Marston, No. 34- 20 2018-00236829, 2019 WL 8400826 (Cal. Super. Feb. 11, 2019).9 On April 11, 2019, Acres 21 7 The state court decision provides a lengthy summary of plaintiffs’ allegations and the alleged 22 roles of the moving defendants in relation to those allegations. See Acres v. Marston, 2019 WL 8400827, at *2. 23

8 For example, plaintiffs added an allegation that Rapport and DeMarse also rendered legal 24 services to the tribe’s attorneys providing backup to the Boutin Jones attorneys defending the tribal court in both federal court actions Acres I and Acres II. This added paragraph, in addition to 25 the few others, amount to minor differences between the complaints filed here and in state court.

26 9 Copies of the state court’s decisions are also submitted as Exhibit A to Janssen Malloy’s motion to dismiss and as Exhibit 2 to Blue Lake Defendants’ request for judicial notice. See Exhibit A to 27 Janssen Malloy Motion to Dismiss [Dkt. No. 34] (copy of Sacramento County Superior Court 1 appealed both dismissal decisions to the California Court of Appeals, Third District, Case No. 2 C089344, where it is currently pending. Compl. ¶ 32 n. 6. 3 II. PROCEDURAL BACKGROUND 4 On August 28, 2019, Acres and ABI filed this action, which, as stated above, brings the 5 same claims against the same defendants in the state court action, except for an added RICO 6 claim. 7 The Attorney Defendants move to dismiss based upon sovereign immunity under Rule 8 12(b)(1) and/or for failure to state a claim under Rule 12(b)(6). See Specially Appearing 9 Defendants Boutin Jones Inc., Michael Chase, Daniel Stouder & Amy O’Neil’s Memorandum of 10 Points & Authorities in Support of Their Rule 12(b)(1) and Rule 12(b)(6) Motion to Dismiss 11 Plaintiffs’ Complaint (“Boutin Jones MTD”) [Dkt. No. 29-1]; Notice of Motion and Motion of 12 Defendants Janssen Malloy LLP, Megan Yarnall and Amelia Burroughs to Dismiss the Verified 13 Complaint of Plaintiffs Based Upon Sovereign Immunity under FRCP 12(b)(1) and/or Failure to 14 State a Claim under FRCP 12(b)(6) (“Janssen Malloy MTD”) [Dkt. No. 33]. The Blue Lake 15 Defendants also move to dismiss based on sovereign immunity under Rule 12(b)(1). See 16 Memorandum of Points and Authorities in Support of Motion to Dismiss under FRCP 12(b)(1), 17 (2) (“Blue Lake MTD”) [Dkt. No. 32]. These motions were fully briefed. Because the motions 18 could be decided on the papers, I vacated the hearing. 19 LEGAL STANDARD 20 A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court’s subject 21 matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited 22

23 County Superior Court opinion as to Blue Lake Defendants).

24 Blue Lake Defendants’ request for judicial notice of this state court decision is GRANTED because it is a matter of public record. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 25 2001) (citing Fed. R. Evid. 201). Their request for judicial notice of other documents relating to their motion to dismiss is also GRANTED because these documents are matters of public record 26 and/or incorporated by reference by the Complaint. See Blue Lake RJN, Ex. 1 (copy of the Nevada Secretary of State’s listing for ABI, in which Acres is identified as ABI’s president, 27 secretary, treasurer and director); Ex. 3 (copy of Class III gaming compact Blue Lake Casino has 1 jurisdiction,” and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. 2 Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The party invoking the jurisdiction of the 3 federal court bears the burden of establishing that the court has the requisite subject matter 4 jurisdiction to grant the relief requested. Id. 5 A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d 6 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the 7 allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 8 The challenger asserts that the allegations in the complaint are insufficient “on their face” to 9 invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 10 2004). To resolve this challenge, the court assumes that the allegations in the complaint are true 11 and draws all reasonable inference in favor of the party opposing dismissal. See Wolfe, 392 F.3d 12 at 362. 13 “By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 14 themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. To resolve 15 this challenge, the court “need not presume the truthfulness of the plaintiff's allegations.” Id. 16 (citation omitted). Instead, the court “may review evidence beyond the complaint without 17 converting the motion to dismiss into a motion for summary judgment.” Id. (citations omitted). 18 Once the moving party has made a factual challenge by offering affidavits or other evidence to 19 dispute the allegations in the complaint, the party opposing the motion must “present affidavits or 20 any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses 21 subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also 22 Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). 23 DISCUSSION 24 As sovereigns, Tribal Nations are generally immune from suit. Lewis v. Clarke, 137 S. Ct. 25 1285, 1288 (2017). Sovereign immunity extends to tribal officials when they act in their official 26 capacity and within the scope of their authority; however, when tribal officials act beyond their 27 authority they lose their right to the sovereign’s immunity. See id.; Imperial Granite Co. v. Pala 1 always extend to tribal employees sued in their individual capacities. See Lewis, 137 S. Ct. at 2 1288. Even when a tribal employee is sued for actions taken within the scope of her employment, 3 a personal suit can proceed unless the court determines that “the sovereign is the real party in 4 interest.” Id. at 1290-91. Sovereign immunity therefore bars suits when “the remedy sought is 5 truly against the sovereign.” Id. at 1290. 6 For the reasons set forth below, I find that all of the defendants were functioning as the 7 Tribe’s officials or agents when the alleged acts were committed and dismiss the Complaint based 8 on tribal sovereign immunity. 9 I. ATTORNEY DEFENDANTS’ MOTION TO DISMISS 10 Attorney Defendants point to Great W. Casinos, Inc. v. Morongo Band of Mission Indians, 11 74 Cal. App. 4th 1407 (1999) as an illustrative example of when tribal sovereign immunity 12 extends to a tribe’s outside legal counsel. The plaintiff in that case filed suit against a tribe, the 13 tribal council, individual tribal council members, the tribe’s general counsel, and an attorney and 14 her private law firm regarding the tribe’s cancellation of a contract. 74 Cal. App. 4th at 1413. The 15 plaintiff alleged multiple fraud claims, abuse of process, and a RICO claim. Id. at 1414. The trial 16 court dismissed the suit based upon tribal sovereign immunity and the California Court of Appeal 17 affirmed, finding in relevant part that the non-Indian law firm and general counsel were protected 18 by tribal sovereign immunity from liability for actions taken or opinions given in rendering legal 19 services to the tribe to the same extent of immunity entitled to the tribe, tribal council, and tribe 20 members. Id. at 1423. 21 The court held that “[i]n providing legal representation—even advising, counseling and 22 conspiring with the tribe to wrongfully terminate the management contract—counsel were 23 similarly immune from liability for those professional services.” 74 Cal. App. 4th at 1423 (citing 24 Davis v. Littell, 398 F.2d 83, 85 (9th Cir. 1968)). The court continued: “Refusing to recognize an 25 extension of a tribe’s sovereign immunity to cover general counsel’s advice to the tribe could not 26 only jeopardize the tribe’s interests but could also adversely influence counsel’s representation of 27 the tribe in the future. For these reasons, counsel, in allegedly advising the tribe to wrongfully 1 Attorney Defendants in this suit are immune from liability based on acts done in the course 2 of representing Blue Lake Casino in tribal court for its dispute with plaintiffs. The Complaint 3 does not allege that Attorney Defendants acted outside of the scope of authority granted to them in 4 their representation of Blue Lake Casino; rather the allegations describe actions typically done in 5 rendering legal services. See, e.g., Compl. ¶¶ 23-25, 27-29,111, 115, 116; see Catskill Dev., 6 L.L.C. v. Park Place Entm’t Corp., 206 F.R.D. 78, 91 (S.D.N.Y. 2002) (relying on Great W. 7 Casino and finding “[a]s a general proposition, a tribe’s attorney, when acting as a representative 8 of the tribe and within the scope of his authority, is cloaked in the immunity of the tribe just as a 9 tribal official is cloaked with that immunity”). 10 Plaintiffs argue that Great W. Casinos is overruled by Lewis because it “failed to use the 11 ‘who-may-be-bound’ test required by Lewis.” Plaintiffs’ Opposition to Defendant Boutin Jones’ 12 Motion to Dismiss (“Oppo. Boutin Jones MTD”) [Dkt. No. 43] 14. The Sacramento County 13 Superior Court rejected this argument, as do I. See Acres v. Marston, 2019 WL 8400826, at *11. 14 The extension of tribal sovereign immunity to the tribe’s legal counsel in Great W. Casinos is not 15 inconsistent with the official-capacity and personal-capacity dichotomy identified in Lewis. 16 The Supreme Court in Lewis made clear that “[t]he identity of the real party in interest 17 dictates what immunities may be available.” 137 S. Ct. at 1291. The tribal employee in Lewis 18 was sued for negligence when he allegedly caused a motor-vehicle accident while shuttling 19 customers for the tribe. Id. He was not entitled to sovereign immunity because the Supreme 20 Court found that a “judgment will not operate against the Tribe” and “will not require action by 21 the sovereign or disturb the sovereign’s property.” Id. 22 Two other Ninth Circuit cases also declined to extend sovereign immunity because they 23 were factually-similar to Lewis. In Pistor v. Garcia, internal governance concerns were not 24 implicated by plaintiffs, who were allegedly detained at a tribal casino and sued the tribal police 25 chief, gaming office inspector and the casino’s general manager in their individual capacities for 26 violating their Fourth and Fourteenth Amendment rights and other state tort laws. 791 F.3d 1104, 27 1113 (9th Cir. 2015). In Maxwell v. County of San Diego, sovereign immunity did not apply 1 monetary damages for their negligence that would “come from their own pockets, not the tribal 2 treasury.” 708 F.3d 1075, 1089 (9th Cir. 2013). 3 Although the Ninth Circuit declined to extend sovereign immunity to the defendants in 4 Maxwell, it nonetheless cautioned against entertaining individual suits which are in reality against 5 the tribe: In any suit against tribal officers, we must be sensitive to whether the 6 judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of 7 the judgment would be to restrain the [sovereign] from acting, or to compel it to act. 8 Maxwell, 708 F.3d at 1088. As examples of such suits, Maxwell pointed to Cook v. AVI Casino 9 Enterprises, Inc., 548 F.3d 718 (9th Cir. 2008) and Hardin v. White Mountain Apache Tribe, 779 10 F.2d 476, 478 (9th Cir. 1985). In Cook, the plaintiffs’ object was to reach the public treasury 11 through a respondeat superior ruling against the tribal officials, and therefore the suit was barred 12 by sovereign immunity because the real party in interest was the tribe. Cook, 548 F.3d at 727. In 13 Hardin, sovereign immunity barred the plaintiff from litigating a case against high-ranking tribal 14 council members seeking to hold them individually liable for voting to eject the plaintiff from 15 tribal land; to hold otherwise, the Ninth Circuit ruled, would interfere with the tribe’s internal 16 governance. Hardin, 779 F.2d at 478. “Hardin was in reality an official capacity suit, barred by 17 sovereign immunity, because the alternative, to [h]old[ ] the defendants liable for their legislative 18 functions[,] would . . . have attacked the very core of tribal sovereignty.” Maxwell, 708 F.3d at 19 1089 (internal quotation marks and citation omitted). 20 This case is like Hardin and Cook. The alleged acts occurred when Attorney Defendants 21 were acting within the scope of their tribal authority, i.e., within the scope of their representation 22 of Blue Lake Casino. Accordingly, the real party in interest here is the tribe because adjudicating 23 this dispute would require the court to interfere with the tribe’s internal governance.10 24

25 10 Plaintiffs also attempts to analogize this case to JW Gaming Dev., LLC v. James, in which I found tribal defendants were not entitled to sovereign immunity. No. 3:18-CV-02669-WHO, 2018 26 WL 4853222 (N.D. Cal. Oct. 5, 2018), aff’d, 778 F. App’x 545 (9th Cir. 2019), cert. denied, No. 19-971, 2020 WL 1124446 (Mar. 9, 2020). The facts alleged in that case were different. JW 27 Gaming alleged that individual defendants, who happened to be tribal officials, engaged in fraud 1 Despite the nature of their allegations, plaintiffs still contend that sovereign immunity is 2 inapplicable because Attorney Defendants are sued in their individual capacities. Oppo. Boutin 3 Jones MTD 14. The California Court of Appeals rejected a similar argument made by plaintiffs in 4 Brown v. Garcia, 17 Cal. App. 5th 1198 (2017). In that case, plaintiff tribe members brought a 5 defamation action against other tribe members who published an “Order of Disenrollment” that 6 accused plaintiffs of multiple legal violations that could be punishable by loss of membership. Id. 7 at 1200-01. Those plaintiffs denied that their action would require the court to adjudicate an intra- 8 tribal dispute or insert itself in tribal law, custom, practice or tradition; instead, they argued that 9 they were “simply asking that the Defendants, in their individual capacities, be held accountable 10 for their defamations of fellow Californians.” Id. at 1201. 11 Looking to Ninth Circuit authorities discussed above, the Brown court rejected the 12 plaintiffs’ contentions and found that “sovereign immunity will nonetheless apply in appropriate 13 circumstances even though the complaint names and seeks damages only from individual 14 defendants.” Id. at 1205 (citing Pistor, 791 F.3d at 1113). It found that “[n]otwithstanding 15 plaintiffs’ assertion that their action is purely about harmful publications and does not require a 16 court to interfere with any membership or governance decisions, . . . adjudicating the dispute 17 would require the court to determine whether tribal law authorized defendants to publish the Order 18 and disenroll plaintiffs, which itself requires an impressible analysis of Tribal law and constitutes 19 a determination of non-justiciable inter-tribal dispute.” Id. at 1206-07 (internal quotation marks 20 omitted). It differentiated the circumstances from Maxwell, Pistor and Lewis, in which “[t]he 21 wrongs alleged . . . were garden variety torts with no relationship to tribal governance and 22 administration.” Id. at 1206. 23 Looking beyond the façade of a facially-pleaded individual-capacity lawsuit, I find that 24 “entertaining [this] suit would require the court to adjudicate the propriety of the manner in which 25 tribal officials carried out an inherently tribal function.” Brown, 17 Cal. App. 5th at 1207. 26 Attorney Defendants persuasively raise these concerns: “If the court were to wade in and decide 27 1 what actions are or are not permissible in Tribal Court it necessarily asserts control of that Court. 2 Is this Court, as Plaintiffs contends, supposed to rule on what pleadings are appropriate in Tribal 3 Court or how an action in Tribal Court must be plead[ed]? . . . Is it to determine when, in Tribal 4 Court, an attorney has misused the Tribal Court’s judicial process . . . or whether the Tribal Court 5 correctly followed its own procedures?” Janssen Malloy MTD 13. 6 As the Sacramento County Superior Court found, “[t]hese are not insignificant or 7 immaterial questions in the malicious prosecution action, since the case involves alleged malicious 8 prosecution only in the Tribal Court.” Acres v. Marston, 2019 WL 8400826, at *12 (emphasis in 9 original). Just as entertaining the suit in Brown would require the court to question an inherently 10 tribal function, entertaining this suit would require me to question the judicial function of the Blue 11 Lake Rancheria Tribal Court. The real party in interest here is the Tribe itself. For these reasons, 12 Attorney Defendants’ motion to dismiss on grounds of tribal sovereign immunity is GRANTED. 13 II. BLUE LAKE DEFENDANTS’ MOTION TO DISMISS 14 Plaintiffs also sue tribal court personnel and other officials who were involved in the 15 underlying tribal action. The Blue Lake Defendants consist of: (i) Chief Judge Marston, (ii) Clerk 16 Huff, (iii) elected tribal officials Ramsey and Frank, (iv) an alleged law firm “Rapport and 17 Marston” (v) tribal attorneys Rapport and DeMarse; (vi) and tribal court associate judges/law 18 clerks Burrell, Vaughn and Lathouris. 19 Judge Marston is alleged to have served as the Chief Judge of the Blue Lake Tribal Court, 20 and he originally presided over the underlying tribal action Blue Lake Casino v. Acres. Compl. ¶ 21 16. Clerk Huff is alleged to have been the Clerk of the Tribal Court during Blue Lake Casino v. 22 Acres, and while acting as Clerk, she was also employed by Tribe in various other roles, like 23 “Grants and Contracts Manager.” Id. ¶ 15. During Blue Lake Casino v. Acres, most of the orders 24 issued by the Tribal Court were served by Clerk Huff upon the parties. Id. ¶ 123. 25 Ramsey is alleged to have been the Chief Executive Officer of Blue Lake Casino 26 during Blue Lake Casino v. Acres and also served as Tribe’s Tribal Administrator, as a judge of 27 Blue Lake’s Tribal Court, and as the vice-chair of the Blue Lake Business Council. Compl. ¶ 13. 1 the Tribal Government, and supervised the work of Clerk Huff. Id. 2 Frank is alleged to have held various executive roles for Tribe over the past 15 years, 3 including as a Blue Lake Casino executive (until 2009) and as Director of Business Development 4 for Tribe (from 2010 until at least 2015). Compl. ¶ 14. During Blue Lake Casino v. Acres, Frank 5 verified Blue Lake Casino’s discovery responses to Acres, and made several sworn declarations. 6 Id. ¶ 122. 7 Rapport allegedly provided attorney services to the Tribe in partnership with Judge 8 Marston since at least 1983. Compl. ¶ 18. Rapport & Marston is alleged to be a law firm 9 consisting of Judge Marston and Rapport, but this is repeatedly disputed in their motion papers. 10 Id. ¶ 17. 11 DeMarse is alleged to be an associate judge of the Blue Lake Tribal Court, and a licensed 12 California attorney associated with Rapport and Marston. Compl. ¶ 20. DeMarse performed legal 13 services for Tribe, and also provided legal service to Judge Marston in his role as judge in Blue 14 Lake Casino v. Acres. Id. ¶ 128. 15 Burrell is alleged to be an associate judge of the Blue Lake Tribal Court, and a licensed 16 California attorney associated with Rapport and Marston. Compl. ¶ 19. Burrell performed legal 17 services for Tribe, and also provided legal service to Judge Marston in his role as judge in Blue 18 Lake Casino v. Acres. Id. ¶ 125. 19 Vaughn is alleged to be an associate judge of the Blue Lake Tribal Court, and a licensed 20 California attorney associated with Rapport and Marston. Compl. ¶ 21. Vaughn performed legal 21 services for Tribe, and also provided legal service to Judge Marston in his role as judge in Blue 22 Lake Casino v. Acres. Id. ¶ 126. 23 Lathouris is alleged to be an attorney licensed in Nevada and associated with Rapport and 24 Marston. Compl. ¶ 22. Lathouris performed legal services for Tribe, and also provided legal 25 service to Judge Marston in his role as judge in Blue Lake Casino v. Acres. Id. ¶ 127 26 As explained above with respect to the Attorney Defendants, plaintiffs’ facial 27 characterization that this case only seeks to sue the Blue Lake Defendants individually is 1 because plaintiffs sued high-ranking tribal council members for voting to eject him, than it is to 2 Lewis, where the tribe was not a real party in interest because plaintiffs sued a tribal employee for 3 negligence in driving casino customers to their homes off of the tribe’s lands. 4 The Blue Lake Defendants are named as individual defendants but the tribe is the real 5 party in interest. It was the tribe, not any of the individual Blue Lake Defendants, who sued 6 plaintiffs in the underlying tribal court case. The tribe appointed Judge Marston and Clerk Huff 7 and both were exercising tribe judicial powers in operation of court. Acting in his capacity, Judge 8 Marston retained services of Burrrell, Vaughn, and Lathouris to assist in exercising governmental 9 powers in the underlying tribal court case. The tribe then retained Rapport and DeMarse as its 10 general counsel to provide the tribe with legal advice in defending Acres’ subsequent federal suits. 11 Allowing this litigation to proceed will necessarily impact the ways in which tribal employees and 12 officials carry out their official duties and question a tribe’s right to set up and operate its own 13 courts under its own rules and laws. 14 For the reasons discussed above, I dismiss the Complaint against Blue Lake Defendants 15 because of tribal sovereign immunity. In addition, I will briefly address the Blue Lake 16 Defendants’ alternative defenses of judicial immunity and quasi-judicial immunity. 17 Judges are absolutely immune from civil liability for damages for acts performed in their 18 judicial capacity. See Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Judges and those performing 19 judge-like functions are absolutely immune from damage liability for acts performed in their 20 official capacities. Stump v. Sparkman, 435 U.S. 349, 362 (1978). “A judge will not be deprived 21 of immunity because the action he took was in error, was done maliciously, or in excess of his 22 authority; rather, he will be subject to liability only when he has acted in the clear absence of all 23 jurisdiction. Id. at 356-57 (internal quotation marks and citation omitted); see also Mireles v. 24 Waco, 502 U.S. 9, 11 (1991) (judicial immunity is not overcome by allegations of bad faith or 25 malice); Sadorski v. Mosley, 435 F.3d 1076, 1079 n. 2 (9th Cir. 2006) (mistake alone is not 26 sufficient to deprive a judge of absolute immunity). 27 Courts have recognized “the long-standing federal policy supporting the development of 1 Towa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987) (“[A] federal court’s exercise of 2 || jurisdiction over matters relating to reservation affairs can .. . impair the authority of tribal 3 courts.”). Accordingly, a tribal court judge is entitled to the same absolute judicial immunity that 4 shields state and federal court judges. See Acres v. Marston, 2019 WL 8400827, at *11 (citing 5 Penn y. United States, 335 F.3d 786, 789 (8th Cir. 2003)). 6 Plaintiffs concede that “Judge Marston enjoys absolute immunity from suit for any conduct 7 || that was essentially judicial in nature,” but nonetheless attempt to hold Judge Marston liable for 8 what they characterize as “non-judicial acts.” Compl. § 16. However, all of the alleged acts by 9 || the Blue Lake Defendants with judicial roles (all except Ramsey and Rapport) were either judicial 10 || or quasi-judicial acts. None of the alleged acts could be characterized “non-judicial” and whether 11 the acts were malicious or fraudulent does not overcome the protection of this immunity. 12 || Accordingly, I also dismiss the Blue Lake Defendants on the alternate grounds of judicial 5 13 immunity and quasi-judicial immunity. CONCLUSION 3 15 The Attorney Defendants’ and Blue Lake Defendants’ motions to dismiss are GRANTED z 16 || on grounds of tribal sovereign immunity, judicial immunity and quasi-judicial immunity. The 5 17 anti-SLAPP motions and motion to strike the anti-SLAPP motions are DENIED as moot. 18 Accordingly, this case is DISMISSED and the Clerk shall close the case. 19 IT IS SO ORDERED. 20 || Dated: April 15, 2020 21 ° 22 3 Iam H. Orrick — United States District Judge 24 25 26 27 28