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(Cite as: 2003 WL 1735548 (Cal.App. 4 Dist.))

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

Court of Appeal, Fourth District, Division 2, California.

HAVASU PALMS, INC. et al., Plaintiffs, Cross-defendants and Appellants,


Carmino MASSIMINO et al., Defendants and Respondents;

HAVASU VENTURES, INC., Defendant, Cross-complainant and Respondent.

THE CHEMEHUEVI INDIAN TRIBE, Cross-defendant and Respondent.

No. E031987.

(Super. Ct. No. NCV 161).

April 2, 2003.

APPEAL from the Superior Court of San Bernardino County. Joseph E. Johnston, Judge. Affirmed.

Theodore R. Chavez, Campbell, CA, Marvin Zinman, Los Angeles, CA, for plaintiffs, cross-defendants and appellants.

Rapport and Marston, Lester J. Marston, Ukiah, CA, and Scott Johnson, for cross-defendant and respondent.

Law Office of Walter Brandt Scott and Walter Brandt Scott, Glendale, CA, for defendants, cross-complainant and respondents.



1. Introduction

*1 In a dispute between a former tenant of Indian land and a present tenant of Indian land, both non-Indians, does tribal sovereign immunity [FN1] apply?

FN1. Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58.

Plaintiffs appeal from the trial court's ruling granting a combined motion to quash, demurrer, and motion to dismiss brought by a cross-defendant, the Chemehuevi Indian Tribe (Tribe).

We hold the trial court lacked subject-matter jurisdiction over the entire action and properly dismissed the case. This appeal affords another caveat to those who risk doing business with Indian tribes who have sovereign immunity.

2. Factual and Procedural Background

Between March 1984 and May 1999, the Tribe, a federally-recognized Indian tribe, leased property to plaintiff Havasu Palms, Inc. (Palms) to operate a small resort on the shores of Lake Havasu. After the Palms lease expired on May 2, 1999, the Tribe entered into a new lease with Havasu Ventures, Inc. (Ventures). Ventures then took possession of the leased resort property.

In July 1999, Palms and two individuals, Caroline Johnson and Bobbi Holmes, filed a complaint against three defendants--Ventures and two other individuals, Carmino Massimino and James Foster--alleging that, on May 4, 1999, defendants had committed forcible entry and detainer; wrongly converted plaintiffs' property, including merchandise; trespassed on plaintiffs' real and personal property; subjected plaintiffs to intentional infliction of emotional distress; and conducted intentional interference with contract.

Defendants demurred on the grounds the state court lacked subject matter jurisdiction over a dispute involving property located on Indian land [FN2] and the Tribe is a necessary party under Federal Rules of Civil Procedure, Rule 19, subdivision (a).

FN2. Title 28, United States Code section 1360, subdivision (b).

The trial court, Judge Joseph Brisco, overruled the demurrer. Defendants then filed an answer and a cross-complaint against plaintiffs and the Tribe in which they asserted the Tribe had reclaimed the resort property and then turned over possession to Ventures. Any personal property was either deemed abandoned or was inventoried and being held in storage for plaintiffs.

The Tribe then filed its combined motion to quash service of summons, demurrer, and motion to dismiss directed at the entire action, both complaint and cross-complaint. In addition to arguments about lack of jurisdiction and the Tribe being a necessary and indispensable party, the Tribe argued the cross-complaint should be dismissed because Ventures did not pursue its administrative remedy in a tribal court. A copy of the Tribal Tort Claims Ordinance is part of the record.

The trial court, Judge Joseph Johnston, granted the Tribe's combined motion and dismissed the case. Plaintiffs appeal.

3. Discussion

We briefly address plaintiffs' contention that because Judge Brisco overruled defendants' demurrer, the "law of the case" applies, at least as between plaintiffs and defendants if not the cross-defendant Tribe. The doctrine of law of the case "applies only to a decision of an appellate court in the same case, " [FN3] not to an intermediate ruling by a trial court, especially one not involving the same parties: "The doctrine that a previous ruling has become the law of the case has no application except as to the decisions of appellate Courts. When the Court of last resort has finally ruled upon the point, and the case has been returned to the Court below, the principle invoked by respondents applies, and the decision of the appellate Court, right or wrong, has become the law of the case in all subsequent proceedings, for the obvious reason that, otherwise, the end of the case might never be reached. But if, at the trial of a cause at nisi prius, the Court makes a ruling upon a certain point, the Court is not bound by it, if the same point arises again. On the contrary, the Court may, and should, change its ruling, if, in the meantime it has become satisfied that it was erroneous." [FN4]

FN3. 9 Witkin, California Procedure (4th ed.) section 896, page 930.

FN4. Lawrence v. Ballou (1869) 37 Cal. 518, 521.

*2 California courts cannot exercise personal or subject matter jurisdiction over Indian tribes. [FN5] Thus, plaintiffs do not challenge the trial court's ruling to the extent it dismissed the cross-complaint against the Tribe. Plaintiffs, however, do challenge the ruling as it affects the complaint by plaintiffs against defendant Ventures, which is not a tribal business entity, and the two individuals, who are not Indians. Plaintiffs argue that the superior court does have jurisdiction over a complaint for monetary damages involving only non-Indians. Plaintiffs, however, base their argument on the incorrect premise that their dispute does not involve Indian trust property. A fair reading of the complaint shows the dispute involves real property leased from the Tribe, as well as claims involving appurtenant personal property.

FN5. Long v. Chemehuevi Indian Reservation (1981) 115 Cal.App.3d 853, 857.

The legal issue of whether subject matter jurisdiction exists in a case involving an Indian tribe is subject to de novo review. [FN6] In Boisclair v. Superior Court, [FN7] the California Supreme Court held the state court had no subject matter jurisdiction in a case involving a claimed easement over Indian trust lands: "[S]ection 1360(b) precludes states from asserting jurisdiction over disputes concerning Indian land, including--as here--disputes in which one party claims the disputed property is non- Indian ... the threshold question must be whether one possible outcome of the litigation is the determination that the disputed property is in fact Indian trust land. If that outcome is possible, then a state court is barred from assuming jurisdiction of the case." [FN8] Further, if "... one possible outcome of the case may be a finding that the property in dispute is Indian trust land, the court may dismiss the case for want of subject matter jurisdiction." [FN9]

FN6. Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1180.

FN7. Boisclair v. Superior Court (1990) 51 Cal.3d 1140.

FN8. Boisclair v. Superior Court, supra, 51 Cal.3d at page 1152.

FN9. Boisclair v. Superior Court, supra, 51 Cal.3d at page 1156.

Following Boisclair, the Court of Appeal, Fourth District, held the trial court did not have jurisdiction over a complaint to foreclose a mechanic's lien on kitchen equipment installed in an Indian casino: "The trial court is without jurisdiction to hear a mechanic's lien foreclosure on the Indian realty. [¶] ... There is a clear dispute whether the equipment is Indian trust property. Under Boisclair the state court is without jurisdiction to adjudicate that dispute." [FN10]

FN10. Inland Casino Corp. v. Superior Court (1992) 8 Cal.App.4th 770, 778.

The present case involves a dispute about property that could be Indian trust property. In their complaint, plaintiffs allege that they were wrongfully deprived of the use of the resort property, both real and personal, by defendants' forcible entry and detainer and by "trespass to and against land and personal property belonging to Plaintiffs ...." Plaintiffs also allege interference with contract, referring to their lease with the Tribe.

Clearly, the instant action is or may be a dispute concerning Indian trust property and the superior court has no subject matter jurisdiction over it. In light of our conclusion, we do not address the contentions of the Tribe and defendants that the Tribe is a necessary and indispensable party to the primary action, [FN11] although we are persuaded it probably is both. And if the Tribe is a necessary and indispensable party but cannot be joined, the state court cannot assert personal jurisdiction over the Tribe, and the case also must be dismissed for that reason.

FN11. Code of Civil Procedure section 389, subdivisions (a) and (b); Federal Rules of Civil Procedure, Rule 19, subdivisions (a) and (b); Shermoen v. United States (9th Cir.1992) 982 F.2d 1312, 1317-1319; Confederated Tribes v. Lujan (9th Cir.1991) 928 F.2d 1496, 1499; Makah Indian Tribe v. Verity (9th Cir.1990) 910 F.2d 555, 560; Enterprise Mgt. Consultants v. U.S. ex rel. Hodel (10th Cir.1989) 883 F.2d 890, 894; Jicarilla Apache Tribe v. Hodel (10th Cir.1987) 821 F.2d 537, 540.

*3 We further note plaintiffs were not deprived of a remedy. They could have sought recourse in the tribal court for their claims involving real and personal property against the Tribe and defendants. [FN12] They also could have sought leave to amend their complaint or filed a second action against defendants seeking damages for the loss of their personal property only and excluding any damages or relief involving Indian trust property. Instead, plaintiffs chose to appeal the lower court's ruling.

FN12. Nevada v. Hicks (2001) 533 U.S. 353; Atkinson Trading Company v. Shirley (2001) 532 U.S. 645; Montana v. United States (1981) 450 U.S. 544, 565-566.

4. Disposition

We affirm the judgment. The parties shall each bear their own costs on appeal.

We concur: RAMIREZ, P.J., and WARD, J.