Trudgeon v. Fantasy Springs Casino

• Citation: 84 Cal.Rptr.2d 65,71 Cal.App.4th 632
• Decision Date: 21 April 1999
• Docket Number: No. E022141,E022141
• Parties: , 99 Cal. Daily Op. Serv. 2930 Ray C. TRUDGEON, Plaintiff and Appellant, v. FANTASY SPRINGS CASINO et al., Defendants and Respondents.
• Court: California Court of Appeals

Page 65

84 Cal.Rptr.2d 65

71 Cal.App.4th 632, 99 Cal. Daily Op. Serv. 2930

Ray C. TRUDGEON, Plaintiff and Appellant, v. FANTASY SPRINGS CASINO et al., Defendants and Respondents.

No. E022141.

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

April 21, 1999.

Review Denied July 28, 1999.

Sergio A. Retamal, Indio, for Plaintiff and Appellant.

Masry & Vititoe and Nancy Seidler Eichler, Toluca Lake, for Defendants and Respondents.

OPINION

RICHLI, Acting P.J.

Plaintiff appeals from summary judgment for defendants in this action for personal injuries sustained at an Indian gaming casino. He principally contends the court improperly extended the Indian tribe's sovereign immunity to a tribal corporation formed to operate the casino. We conclude the purpose and activities of the corporation were so closely related to those of the tribe that the corporation must be considered an extension of the tribe for immunity purposes. Accordingly, we affirm the lower court.

I FACTUAL AND PROCEDURAL BACKGROUND

The Cabazon Band of Mission Indians (the Tribe) is a federally recognized Indian tribe. Defendant Cabazon Bingo, Inc. (Cabazon Bingo) is a corporation organized by the Tribe which operates Fantasy Springs Casino (Fantasy Springs), a gaming and entertainment complex located on tribal land. Plaintiff and his wife visited Fantasy Springs on or about September 17, 1995, to eat supper and play bingo. At the time, plaintiff was 66 years old.

As the couple left the casino to go to their car after the bingo game, a fight broke out among other patrons. Although plaintiff was not a participant in the fight, he was knocked off his feet by the fighters, breaking his hip and shattering his elbow.

Plaintiff filed the present action in April 1996 against Fantasy Springs, Cabazon Bingo, and Does 1 through 50. Plaintiff did not sue the Tribe itself. The complaint alleged defendants knew or should have known that numerous prior assaults and crimes had occurred in the casino area, but failed to provide reasonable protection to business visitors from the criminal acts of third persons.

In January 1997, defendants moved for summary judgment on the ground the action was barred by sovereign immunity. In June 1997, the court granted defendants' motion and, in November 1997, entered judgment for defendants.

II DISCUSSION

A. Tribal Sovereign Immunity

The federal government has "plenary and exclusive power" to deal with Indian tribes. (Bryan v. Itasca County, Minnesota (1976) 426 U.S. 373, 376, fn. 2, 96 S.Ct. 2102, 48 L.Ed.2d 710.) Under federal case law, "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106.) 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." (Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, ----, 118 S.Ct. 1700, 1702, 140 L.Ed.2d 981.) Any such authorization or waiver " ' "cannot be implied but must be unequivocally expressed." ' " (Santa Clara Pueblo, supra, at p. 58, 98 S.Ct. 1670; accord, Middletown Rancheria v. Workers' Comp. Appeals Bd. (1998) 60 Cal.App.4th 1340, 1347, 71 Cal.Rptr.2d 105.) And since it emanates from federal law, tribal immunity "is not subject to diminution by the States." (Kiowa Tribe of Oklahoma, supra, 523 U.S. at p. ----, 118 S.Ct. at p. 1703.)

Plaintiff does not dispute that the Tribe itself enjoys sovereign immunity. He contends, however, that the lower court improperly extended immunity to Cabazon Bingo and to the individual officers and agents of the Tribe who operated the casino. We will consider in turn the application of the Tribe's immunity to Cabazon Bingo and to the officers and agents.

B. Liability of Cabazon Bingo

Cabazon Bingo is a for-profit corporation formed by the Tribe under tribal law to conduct bingo gaming enterprises on tribal land. Plaintiff argues that, because Cabazon Bingo is a proprietary corporation formed for the purpose of obtaining an economic advantage and is not involved in the exercise of the Tribe's governmental powers, it is not covered by the Tribe's sovereign immunity. ¹

It appears to be settled that a tribe's sovereign immunity is not limited to governmental activities, but extends to commercial activities as well, and that the immunity applies to tort claims. In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., supra, 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981, the United States Supreme Court held sovereign immunity barred a suit against a tribe on a promissory note used to finance a tribal entity's purchase of stock in an outside corporation. The court expressly declined to confine immunity to noncommercial activities, noting it had not done so in the past and concluding that any such limitation should come from Congress. (523 U.S. at pp. ---- - ----, 118 S.Ct. at pp. 1703-1705.) It stated, "Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation." (523 U.S. at p. ----, 118 S.Ct. at p. 1705.) Previous decisions of other courts similarly recognize immunity by tribes against actions arising from purely commercial activity. (See, e.g., Sac and Fox Nation v. Hanson (10th Cir.1995) 47 F.3d 1061 1064-1065 [failure to pay employees of tribal manufacturing plants]; Maryland Casualty Co. v. Citizens National Bank of West Hollywood (5th Cir.1966) 361 F.2d 517, 521-522 [claim on tribe's construction surety bond]; Elliott v. Capital International Bank & Trust, Ltd. (E.D.Texas 1994) 870 F.Supp. 733, 735 [claim involving bank chartered and owned by tribe].)

Although Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., supra, involved a contract claim, the dissenting opinion, in suggesting immunity would be unjust to tort victims, noted that "nothing in the Court's reasoning limits the rule to lawsuits arising out of voluntary contractual relationships." (523 U.S. at p. ----, 118 S.Ct. at p. 1708 [dis. opn. of Stevens, J.].) Other courts have recognized immunity against tort claims arising from tribal commercial activities. In Long v. Chemehuevi Indian Reservation (1981) 115 Cal.App.3d 853, 171 Cal.Rptr. 733, for example, this court held that sovereign immunity barred a personal injury suit arising from a boating accident at a marina located on an Indian reservation and owned and operated by the tribe as a profit-seeking operation. (Id., at p. 858, 171 Cal.Rptr. 733; see also Morgan v. Colorado River Indian Tribe (1968) 103 Ariz. 425, 428, 443 P.2d 421, 424 [immunity barred suit for accident at marina operated as tribal enterprise outside reservation boundaries]; Seminole Tribe v. Houghtaling (Fla.App.1991) 589 So.2d 1030, 1032 [personal injury suit by customer of tribal bingo hall].)

These decisions do not directly address the issue before us, since they involved claims against the tribes themselves rather than against a separate business entity organized by the tribe as in the present case. We have not found any California authority addressing the issue whether immunity against claims arising from commercial activity should be extended to such entities. In Long v. Chemehuevi Indian Reservation, supra, 115 Cal.App.3d 853, 171 Cal.Rptr. 733, we noted the existence of "some authority that suits may be maintained against a proprietary corporation established by a sovereign government where the incident in question does not involve the exercise of governmental powers." (Id., at p. 861, 171 Cal.Rptr. 733.) However, we did not address whether immunity should apply in such a case, because the plaintiffs in Long did not attempt "to distinguish the tribe's immunity as a proprietor from its immunity as a government." (Ibid.)

Other jurisdictions which have considered whether sovereign immunity applies to tribal business entities have reached varying conclusions. A few decisions have simply asserted that " 'an action against a tribal enterprise is, in essence, an action against the tribe itself.' " (Barker v. Menominee Nation Casino (E.D.Wis.1995) 897 F.Supp. 389, 393, quoting Local IV-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enter. (E.D.Wis.1984) 595 F.Supp. 859, 862.) However, most courts have rejected, implicitly if not explicitly, the suggestion that courts should "confer tribal immunity on every entity established by an Indian tribe, no matter what its purposes or activities might have been." (Dixon v. Picopa Const. Co. (1989) 160 Ariz. 251, 255, fn. 7, 772 P.2d 1104, 1108.) These decisions hold that whether tribal immunity should be extended to a tribal business entity should depend on the degree to which the tribe and entity are related in terms of such factors as purpose and organizational structure. Applying that standard, courts have reached various conclusions on the immunity issue depending on the facts. (See, e.g., Gavle v. Little Six, Inc. (1996) 555 N.W.2d 284, 294-296 [extending immunity to tribal corporation which owned gambling casino]; White Mountain Apache Indian Tribe v. Shelley (1971) 107 Ariz. 4, 6-7, 480 P.2d 654, 656-657 [extending immunity to unincorporated tribal timber company]; S. Unique, Ltd. v. Gila River Pima-Maricopa Indian Community (App.1983) 138 Ariz. 378, 381-385, 674 P.2d 1376, 1379-1383 [unincorporated tribal farming business immune but waived immunity]; Padilla v. Pueblo of Acoma (1988) 107 N.M. 174, 179-180, 754 P.2d 845, 850-851 [unincorporated tribal construction firm not immune from liability for breach of contract arising from off-reservation activities]; Dixon v. Picopa Const. Co., supra, 160 Ariz. 251, 256-259, 772 P.2d 1104, 1109-1112 [construction company incorporated by tribe not immune for off-reservation tort].)

Although courts have looked to different factors in...