Rincon Band of Luiseño Mission Indians of the Rincon Reservation Cal. v. Flynt

• Decision Date: 28 October 2021
• Docket Number: D077571
• Citation: 286 Cal.Rptr.3d 29,70 Cal.App.5th 1059
• Parties: RINCON BAND OF LUISEÑO MISSION INDIANS OF the RINCON RESERVATION CALIFORNIA et al., Plaintiffs and Appellants, v. Larry FLYNT et al., Defendants and Respondents.
• Court: California Court of Appeals

70 Cal.App.5th 1059

286 Cal.Rptr.3d 29

RINCON BAND OF LUISEÑO MISSION INDIANS OF the RINCON RESERVATION CALIFORNIA et al., Plaintiffs and Appellants,

v.Larry FLYNT et al., Defendants and Respondents.

D077571

Court of Appeal, Fourth District, Division 1, California.

Filed October 28, 2021

Fennemore Craig, Todd Kartchner, Phoenix, AZ; Crowell Law Office Tribal Advocacy Group and Scott Crowell, Sedona, AZ, for Plaintiffs and Appellants.

Denise Turner Walsh, Attorney General(Rincon Band of Luiseño Mission Indians of the Rincon Reservation California), for Plaintiff and Appellant Rincon Band of Luiseño Indians.

Richard Wideman, Santa Barbara; and Walter Viar for Plaintiff and AppellantSanta Ynez Band of Chumash Indians.

Dentons US, Jeffry Butler ; and Paula Yost, Attorney General(Yocha Dehe Wintun Nation), for Yocha Dehe Wintun Nation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Tuari Bigknife, Attorney General(Viejas Band of Kumeyaay Indians), for Viejas Band of Kumeyaay Indians as Amicus Curiae on behalf of Plaintiffs and Appellants.

Mark Radoff, Bishop, for Sycuan Band of the Kumeyaay Nation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Steve M. Bodmer, Chandler, AZ, for Pechanga Band of Luiseño Indians as Amicus Curiae on behalf of Plaintiffs and Appellants.

Diane Vitols for Morongo Band of Mission Indians as Amicus Curiae on behalf of Plaintiffs and Appellants.

John T. Plata, Washington, DC, for Agua Caliente Band of Cahuilla Indians as Amicus Curiae on behalf of Plaintiffs and Appellants.

Michael Hollowell for Redding Rancheria as Amicus Curiae on behalf of Plaintiffs and Appellants.

Procopio Cory Hargreaves & Savitch and Glenn M. Feldman, Scottsdale, AZ, for Cabazon Band of Mission Indians and San Pasqual Band of Mission Indians as Amici Curiae on behalf of Plaintiffs and Appellants.

Susan Jensen for California Nations Indian Gaming Association as Amicus Curiae on behalf of Plaintiffs and Appellants.

Karcher Harmes and Kathryn E. Karcher, Seattle, WA, for Defendants and RespondentsBlackstone Gaming, LLC, PT Gaming, LLC, Pacific United Service, Inc., Metis TPS, LLC, Knighted Ventures, LLC, and Majesty Partners, LLC.

Solomon Ward Seidenwurm & Smith and Stephen L. Schreiner, San Diego, for Defendants and RespondentsBlackstone Gaming, LLC, PT Gaming, LLC, Pacific United Service, Inc., and Sahara Dunes Casino.

Law Office of Tracey Buck-Walsh and Tracey Buck-Walsh, Healdsburg, for Defendant and RespondentPT Gaming, LLC.

Koning Zollar, Blake M. Zollar, Shaun Paisley ; Falk & Sharp and Keith A. Sharp for Defendant and RespondentMetis TPS, LLC.

Hogan Lovells and Ann C. Kim, Los Angeles, for Defendants and RespondentsKnighted Ventures, LLC and Majesty Partners, LLC.

J. Blonien and Danielle M. Guard for Defendants and RespondentsHalcyon Gaming, LLC, LE Gaming, Inc., Certified Players, Inc., and Qualified Players Services.

Law Office of Martin N. Buchanan and Martin N. Buchanan for Defendants and Respondents California Commerce Club, Bicycle Casino, LP, Sahara Dunes Casino, LP, Hollywood Park Casino Company, Oceans 11 Casino, LLC, Celebrity Casinos, Inc., Stones South Bay Corp., Hawaiian Gardens Casino, El Dorado Enterprises, Inc., and Casino, LLC.

Cooley, Michael A. Attanasio and Leo P. Norton, San Diego, for Defendant and Respondent Hawaiian Gardens Casino.

Gibson, Dunn & Crutcher and Maurice Min-Ho Suh for Defendants and RespondentsBicycle Casino, LP, Hollywood Park Casino Company, LLC, and Celebrity Casinos, Inc.

Duane Morris and Patricia P. Hollenbeck, San Diego, for Defendant and RespondentStones South Bay Corp.

White & Reed and Michael R. White, Los Angeles, for Defendant and Respondent Oceans 11 Casino.

Lipsitz Green Scime Cambria, Jonathan W. Brown, Buffalo, NY; Law Offices of Mark Hoffman, Erika Mansky and Mark Hoffman, Los Angeles, for Defendants and RespondentsLarry Flynt, individually and as trustee of the Larry Flynt Revocable Trust, Casino, LLC, and El Dorado Enterprises, Inc.

Greenfield Southwick and Maureen Harrington, San Francisco, for Defendant and Respondent California Commerce Club.

DO, J.

INTRODUCTION

The California Constitution gives American Indian tribes the exclusive right to offer casino-style banked games¹ in California.( Cal. Const., art. IV, § 19, subd. (f).)The plaintiffs—two American Indian tribes, business entities affiliated with the tribes, and individual tribe members—sued a number of non-tribal cardrooms alleging they were offering banked card games on non-tribal land, in violation of the exclusive right of Indian tribes to offer such games.Based on those allegations, the plaintiffs asserted claims for public nuisance, unfair competition, declaratory and injunctive relief, and tortious interference with a contractual relationship and prospective economic advantage.

The defendants demurred and, after two rounds of amendments to the complaint, the trial court sustained the third and final demurrer without leave to amend and entered judgment of dismissal.The court ruled that, as governmental entities, the Indian tribes and their affiliated business entities are not "persons" with standing to sue under the unfair competition law (UCL)( Bus. & Prof. Code, §§ 17201,17204 ), and are not "private person[s]" with standing under the public nuisance statutes( Civ. Code, §§ 3480,3493.)The court further ruled the business entities and the individual tribe members failed to plead sufficient injury to themselves to establish standing to sue under the UCL or the public nuisance statutes.

Although the plaintiffs broadly frame the issue on appeal as whether they, as American Indians, have standing to redress their grievances in California state courts, it is actually much narrower.The issue we must decide is whether the complaint in this case adequately pleads the asserted claims and contains allegations sufficient to establish the threshold issue of whether any of the named plaintiffs have standing to bring those claims.We agree with the trial court's conclusion that the complaint does not do so and, therefore, affirm the judgment in favor of the defendants.²

FACTUAL AND PROCEDURAL BACKGROUND

I.The Parties

A.Plaintiffs

As alleged in the operative second amended complaint (SAC), there are three separate groups of plaintiffs in this lawsuit: 1) two American Indian tribes within the state of California—the Rincon Band of Luiseño Mission Indians of the Rincon Reservation (the Rincon Band) and the Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation (the Chumash Band)(together, the Tribes); 2) 10 business entities affiliated with the Tribes (the Tribe Entities); and 3) 12 individual members of the Rincon Band (the Tribe Members)(collectively, Plaintiffs).

1.The Tribes

The Rincon Band and the Chumash Band are each "a federally recognized Indian tribe."The Rincon Band has its reservation located in San Diego County and the Chumash Band has its reservation in Santa Barbara County.

2.The Tribe Entities

The Tribe Entities are business entities "affiliat[ed] with or ... operated by members of" the Tribes.There are three business entities affiliated with the Rincon Band: Rincon Economic Development Corporation, a federally chartered corporation doing business on the Rincon Band reservation; First Nations Economic Development Corporation, a federally chartered corporation doing business in southern and central California and on the Rincon Band reservation; and Harrah's Resort Southern California, "an unincorporated entity of the Rincon Band" doing business on the Rincon Band reservation.

There are 10 business entities affiliated with the Chumash Band: Chumash Casino and Resort Enterprise, "an unincorporated entity of the Chumash Band" doing business on the Chumash Band reservation; five California limited liability companies doing business in Santa Barbara County, including SYBCI California HotelNo. 2, LLC, Chumash California HotelNo. 1, LLC, Chumash California Gas StationNo. 1, LLC, Chumash California Gas StationNo. 3, LLC, and Chumash Cellars, LLC; and Chumash Vineyards, LLC, a "tribally chartered limited liability company" doing business in Santa Barbara County.

Plaintiffs allege that "[a]side from their affiliation with or being operated by members of federally recognized Indian tribes," the Tribe Entities "operate in the same manner as other corporations, limited liability companies, and unincorporated entities."

3.The Tribe Members

The Tribe Members include the chairperson and a member of the Tribal Council who reside on the Rincon Band reservation and 10 other individual members of the Rincon Band, who each reside in non-tribal communities throughout "the greater Los Angeles/San Diego metropolitan area."

B.Defendants

Plaintiffs brought this lawsuit against two categories of defendants: (1) 11 owners and operators of commercial cardrooms in various parts of southern California (the Cardroom Defendants) and (2) 13 third-partyproposition players (the TPP Defendants)(collectively, Defendants).

The Cardroom Defendants operate gaming establishments on non-tribal land, which can legally offer non-banked card games, such as poker, for play by the public for a per-hand fee.The Cardroom Defendants have historically offered legal non-banked card games in which "there is no bank or house against which players bet.The deal would continuously rotate among the players, with the cardroom having no interest in the results of any hand or the winnings of any player-dealer or other participant."The Cardroom Defendants include: Larry Flynt, as an individual and as trustee of the Larry Flynt Revocable Trust; El Dorado Enterprises, Inc., doing business as Hustler Casino; California Commerce Club, Inc., doing business as Commerce Casino; The Bicycle Casino, L.P.; Hawaiian Gardens Casino; Hollywood Park Casino Company, Inc.; Oceans 11 Casino, Inc.; Player's Poker Club, Inc.;³Stones South Bay Corp., which owns Seven Mile Casino; Celebrity Casinos, Inc., which owns Crystal Casino;...