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(Cite as: 2006 WL 1321125 (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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 1, California.

HOUSE OF BLUES CONCERTS, INC., Plaintiff and Appellant,

v.

Steve REDFEARN, Defendant and Respondent.

No. D046359.

(Super.Ct.No. GIC840444).


May 15, 2006.


APPEAL from an order of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed.


Michelle R. Walker, Jackson Lewis LLP, Los Angeles, CA, for Plaintiff and Appellant.

Wendy L. Tucker, Foley & Lardner, San Diego, CA, for Defendant-Respondent.

IRION, J.

*1 House of Blues Concerts, Inc. (House of Blues) appeals the trial court's order granting a motion to quash service of summons based on tribal sovereign immunity in favor of Steve Redfearn-an officer of a tribal business entity owned by the Viejas Band of Kumeyaay Indians (Viejas). As we will explain, we conclude that the trial court correctly concluded that Redfearn is protected by Viejas's tribal sovereign immunity as an officer of a tribal business enterprise. Accordingly, we affirm.


I


FACTUAL AND PROCEDURAL BACKGROUND


Viejas is a federally recognized Indian tribe. Two of Viejas's business interests are Viejas Entertainment and Viejas Enterprises. They are not organized under the law of any state and are overseen by Viejas's tribal council.


House of Blues is in the business of providing concert promotion services. According to House of Blues's complaint, House of Blues employed John Wojas as vice-president of talent for San Diego until he was hired by Viejas Entertainment and Viejas Enterprises. Redfearn, who during the relevant time frame was an officer of Viejas's business entities, including president of Viejas Entertainment, participated in the hiring of Wojas. House of Blues filed suit against Wojas, Redfearn, Viejas Entertainment and Viejas Enterprises. Specifically as to Viejas Entertainment, Viejas Enterprises and Redfearn, the complaint alleged that those defendants misappropriated House of Blues trade secrets and interfered with House of Blues's employment contract with Wojas and other House of Blues employees, asserting claims for conversion, intentional interference with contract, tortious interference with prospective economic advantage, violation of the Uniform Trade Secrets Act (Civ.Code, § 3226 et seq.), unfair competition (Bus. & Prof.Code, § 17200 et. seq.) and conspiracy.


Redfearn made a special appearance and filed a motion to quash service of summons on the ground that the tribal sovereign immunity enjoyed by Viejas and its tribal business entities extended to him as an officer of those entities. FN1 Redfearn explained that he was employed by Viejas from 2000 to late 2004 as vice-president of market and business development, and that when Viejas created Viejas Entertainment in mid-2004 to assist other tribes in developing concerts and events, he was selected as president of Viejas Entertainment, which became his sole position in late 2004. He detailed his job responsibilities and explained that as president of Viejas Entertainment, he recommended that Viejas hire Wojas as an in-house talent buyer.


FN1. A motion to quash is one available procedural method for asserting tribal sovereign immunity. (Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1417 (Great Western Casinos ).)


House of Blues opposed the motion to quash, arguing that the trial court should order a 90-day continuance to allow House of Blues to conduct discovery relevant to the sovereign immunity issue. Specifically, House of Blues argued that there was no evidence that Redfearn was a tribal member, and that it should be permitted to conduct discovery related to (1) “whether or not Redfearn actually is a tribal official, as opposed to only being an officer in one of [Viejas's] business entities,” and (2) whether “Redfearn's conduct was outside the course and scope of his authority.” House of Blues stated that if discovery revealed helpful information, it would amend its complaint and present a substantive opposition to Redfearn's motion to quash.FN2


FN2. House of Blues voluntarily dismissed Viejas Enterprises and Viejas Entertainment from the lawsuit after they filed a motion to quash based on tribal sovereign immunity.


*2 The trial court granted Redfearn's motion to quash, rejecting House of Blues's request for a continuance to conduct discovery. The trial court explained that “[w]hether Redfearn was a ‘tribal official’ or a member of the Tribe [Viejas] would not assist [House of Blues]. The evidence indicates that he is an officer (President) of Viejas Entertainment, a tribal business entity. As such, he would be entitled to immunity if his acts were within the scope of his authority.” The trial court observed that the complaint alleged that Redfearn was acting within the scope of his employment and with Viejas's “ ‘permission and consent’ “ in taking the actions complained of by House of Blues, and that the complaint pleaded no facts suggesting that Redfearn acted outside of his authority. The trial court concluded that Redfearn was thus entitled to the protections of tribal sovereign immunity from the claims asserted by House of Blues.


House of Blues appeals pursuant to Code of Civil Procedure section 904.1, subdivision (a)(3), which makes appealable an order granting a motion to quash service of summons.


II


DISCUSSION


A


Standard of Review



We first examine the standard of review applicable to this case. In reviewing a trial court's ruling on a motion to quash service of summons, “[w]hen there is conflicting evidence, the trial court's factual determinations are not disturbed on appeal if supported by substantial evidence,” and “[w]hen no conflict in the evidence exists ..., the question of jurisdiction is purely one of law and [we] engage[ ] in an independent review of the record.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.) “Generally speaking, the issue of whether a court has subject matter jurisdiction over an action against an Indian tribe is a question of law subject to de novo review.” (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1180.)


We apply an abuse of discretion standard of review to the trial court's decision to deny House of Blues a continuance in order to conduct discovery.  (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127 (In re Automobile Antitrust ) [“A ruling on a motion to continue in order to allow additional time to discover jurisdictional facts lies in the trial court's discretion,” and “we will not reverse ... unless we find a manifest abuse of that discretion”].)


B


Principles of Tribal Sovereign Immunity


We begin our analysis with a brief overview of the law of tribal sovereign immunity. “ ‘... Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.’  [Citation.] Thus, ‘[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.’ “ (Trudgeon v. Fantasy Springs Casino (1999) 71 Cal.App.4th 632, 635-636 (Trudgeon ).)


*3 “It [is] settled that a tribe's sovereign immunity is not limited to governmental activities, but extends to commercial activities as well....” (Trudgeon, supra, 71 Cal.App.4th at p. 636, italics omitted.) “A tribal entity is treated as the tribe for immunity purposes.” (Redding Rancheria v. Superior Court (2001) 88 Cal.App.4th 384, 388; see also Trudgeon, at pp. 638-643 [ruling that a tribal casino enterprise was protected by tribal sovereign immunity].)


The issue here is the extent to which tribal sovereign immunity extends to individuals associated with a tribe or tribal enterprise. Although “sovereign immunity does not generally apply to acts of individual tribal members,” it “does extend to tribal officials when they act in their official capacity and within the scope of their authority.” (Great Western Casinos, supra, 74 Cal.App.4th at pp. 1422, 1421.) To qualify as tribal officials, individuals “must show they performed discretionary or policymaking functions within or on behalf of the tribe.” (Turner v. Martire (2000) 82 Cal.App.4th 1042, 1044 (Turner ).) However, “an official need not be a member of the tribe in order to share in its sovereign immunity,” and “immunity has been extended to officers of a tribal business entity as well as to officers of the tribe itself.” (Trudgeon, supra, 71 Cal.App.4th at p. 643.)


Following these principles, to determine whether individuals are protected by sovereign immunity, a court “must consider whether they adequately established first, that they were tribal officials, and second, that the acts of which they were accused were committed in their official capacity and within their scope of authority.” (Turner, supra, 82 Cal.App.4th at p. 1046, italics added.)


Based on this two-pronged inquiry, House of Blues argues that the trial court should have permitted it to conduct discovery to determine (1) whether Redfearn is a tribal official, and (2) if so, whether he was acting in his official capacity and within the scope of his authority when engaging in the conduct challenged in the complaint.


C


The Trial Court Properly Ruled That Redfearn Is a Tribal Official, Without Allowing House of Blues to Conduct Discovery


The first issue is whether the trial court erred in concluding, without permitting House of Blues to take discovery, that Redfearn is a tribal official for the purposes of tribal sovereign immunity. As we have explained, an officer of a tribal business may be considered a tribal official protected by tribal sovereign immunity even without being a member of the tribe. (Trudgeon, supra, 71 Cal.App.4th at p. 643; see also Great Western Casinos, supra, 74 Cal.App.4th at p. 1424 [non-Indian legal counsel for tribe was protected by sovereign immunity as a tribal official].) “As a sovereign the [tribe] ‘enjoys sufficient independent status and control over its own laws and internal relationships to be able to accord absolute privilege to its officers within the areas of tribal control.’ “ (Great Western Casinos, at p. 1424, italics added .) Thus, even though Redfearn presented no evidence that he was a member of the Viejas tribe, his position as an officer in Viejas's business enterprises would qualify him as a tribal official for the purposes of the sovereign immunity analysis if he can establish that he otherwise meets the definition of a tribal official.


*4 A tribal official is someone who occupies “a discretionary or policymaking position” and “perform[s] a high-level or governing role in the affairs of the tribe.” (Turner, supra, 82 Cal.App.4th at p. 1049.) The record establishes that during the relevant time frame, Redfearn held a high-level, discretionary and policymaking position within Viejas as president of Viejas Enterprises and vice-president of market and business development. According to evidence in the record, Redfearn represented his departments at meetings of Viejas's tribal council, had full discretion to allocate the budget assigned to his departments, formulated and implemented department strategy, and supervised over 100 employees.FN3 Due to Redfearn's leadership role in Viejas's business entities, which is consistent with that of a high-ranking corporate officer, Redfearn clearly qualifies as a tribal official.


FN3. House of Blues argues that it is “unclear” whether the declarations submitted by Redfearn in support of his motion to quash “are based on personal knowledge or otherwise competent.” We reject this argument because the dispositive portions of Redfearn's declaration are indisputably competent and based on Redfearn's personal knowledge, as they describe Redfearn's own employment responsibilities.


In light of this evidence, we next discuss whether the trial court abused its discretion in not permitting House of Blues to take discovery before it concluded that Redfearn is a tribal official. “In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction.” (In re Automobile Antitrust, supra, 135 Cal.App.4th at p. 127; see also Beckman v. Thompson (1992) 4 Cal.App.4th 481, 487 [trial court did not err in denying a continuance to pursue jurisdictional discovery where “[i]n light of the showings already made, the court could reasonably conclude further discovery would not likely lead to production of evidence establishing jurisdiction”].) Redfearn submitted evidence establishing his high level position as an officer gave him discretionary authority and responsibility within Viejas's business enterprises, and House of Blues failed to explain how discovery would likely lead to information contravening this dispositive fact. The trial court was thus well within its discretion to determine that Redfearn is a tribal official without allowing House of Blues to pursue discovery on that issue.


D


The Trial Court Properly Ruled That Redfearn Acted in His Official Capacity and Within the Scope of His Authority as a Tribal Official


The second issue is whether the trial court erred in ruling, without allowing House of Blues to conduct discovery, that Redfearn acted in his official capacity and within the scope of his authority by taking the actions alleged in the complaint. As we have explained, sovereign immunity extends to tribal officials “when they act in their official capacity and within the scope of their authority.” (Great Western Casinos, supra, 74 Cal.App.4th at p. 1421, italics added.)


In its briefing, House of Blues states that it “avers that Viejas did not know about, and would not condone, the activities alleged in the complaint against Redfearn,” and that it accordingly should have been permitted to conduct discovery on that issue. However, the position that House of Blues “avers” in its brief is directly contrary to the facts alleged in House of Blues's complaint. “A party is bound by an admission in his own pleadings....” (Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126.) As the trial court noted, House of Blues's own complaint conclusively establishes that while engaging in the conduct alleged in the complaint, Redfearn was acting in his official capacity and with the permission of Viejas. Specifically, the complaint repeatedly alleges that Redfearn was “acting within the scope of [his] employment with Viejas and with Viejas'[s] permission and consent” and that “Viejas ... authorized and ratified the conduct of ... Redfearn alleged herein.” (Capitalization omitted.)


*5 “As a general rule, a party will not be allowed to amend a pleading to contradict an admission made in his original pleading or make a contention based upon a statement of fact contrary to the admission or allegation of his own pleading.” (Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762, 775.) Thus, anything learned as a result of discovery would be ineffective to counter House of Blues's admission that Redfearn was acting within the scope of his position with Viejas and with Viejas's consent. Accordingly, the trial court did not abuse its discretion in ruling that tribal sovereign immunity applied to Redfearn without allowing House of Blues to conduct discovery on that issue. (See In re Automobile Antitrust, supra, 135 Cal.App.4th at p. 127 [continuance to conduct discovery not warranted where discovery was not likely to establish jurisdiction].) FN4


FN4. Further, even without House of Blues's admission, the facts pled in the complaint show that the alleged conduct at issue was taken in Redfearn's official capacity and within the scope of his authority as president of Viejas Entertainment, because it concerns Redfearn's hiring of Wojas and other employees for Viejas Entertainment and the use made by Viejas Entertainment of Wojas's knowledge and experience. These are matters squarely within Redfearn's employment responsibilities as described in his declaration. “Where the plaintiff alleges no viable claim that tribal officials acted outside their authority, immunity applies.” (Trudgeon, supra, 71 Cal.App.4th at p. 644.)


DISPOSITION


The order is affirmed.


WE CONCUR: McCONNELL, P.J., and BENKE, J.

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