Opinion
F077136
04-21-2020
OSCEOLA BLACKWOOD IVORY GAMING GROUP LLC, Plaintiff and Appellant, v. PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS et al., Defendants and Respondents.
Foley & Lardner, Eileen R. Ridley, Kimberly A. Klinsport and Kathryn A. Shoemaker for Plaintiff and Appellant. Fredericks Peebles & Morgan, Michael A. Robinson; Sonosky, Chambers, Sachse, Endreson & Perry and Colin Cloud Hampson for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CECG02613)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge. Foley & Lardner, Eileen R. Ridley, Kimberly A. Klinsport and Kathryn A. Shoemaker for Plaintiff and Appellant. Fredericks Peebles & Morgan, Michael A. Robinson; Sonosky, Chambers, Sachse, Endreson & Perry and Colin Cloud Hampson for Defendants and Respondents.
-ooOoo-
This appeal arises out of a contract dispute between appellant Osceola Blackwood Ivory Gaming Group LLC (Osceola) and respondents Picayune Rancheria of Chukchansi Indians (the Tribe) and Chukchansi Economic Development Authority (collectively Chukchansi). According to Osceola, Chukchansi fraudulently prevented the execution of a management agreement related to the operation of the Chukchansi Gold Resort and Casino (the casino), resulting in the loss of millions of dollars to Osceola. The merits of this dispute were not reached, however, as the matter was dismissed on sovereign immunity grounds following an early motion to quash. Osceola contends the trial court improperly granted this motion. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This dispute was originally filed in the United States District Court for the Eastern District of California but was dismissed for failing to demonstrate original federal jurisdiction over the claims. (See Osceola Blackwood Ivory Gaming Grp., LLC v. Picayune Rancheria of Chukchansi Indians (E.D.Cal. 2017) 272 F.Supp.3d 1205.) A substantially similar case was then filed in the Fresno County Superior Court.
Chukchansi has filed a motion to strike large portions of the clerk's transcript, arguing many of the documents included are irrelevant and noting sanctions are authorized when the record includes documents not reasonably material to the appeal's determination. Osceola argues that its conduct is permitted by California Rules of Court, rule 8.122(b)(3)(A), which provides that, subject to limited exceptions, "if designated by any party, the transcript must also contain ... [¶] ... [a]ny other document filed or lodged in the case in superior court." It further contends having the complete trial court record is not frivolous. While we do not agree that California Rules of Court, rule 8.122 always permits the designation of the full trial court record, in a case like this, where the proceedings are limited and the issues well defined, a slight over-designation is preferable to under-designation. As the designations here are neither unwieldy nor frivolous, we deny Chukchansi's motion to strike.
According to the complaint, Osceola is in the business of providing management and consulting services for Native American hospitality and gaming projects. Chukchansi are a federally recognized Indian tribe and a wholly owned unincorporated economic arm of the Tribe that operates the casino. Around April 2015, the parties began working together to reopen the casino after it had been previously closed by the National Indian Gaming Commission (NIGC). At the time, Chukchansi were allegedly in severe financial distress and facing substantial regulatory hurdles to reopening.
The Consulting Contract
The parties first entered into a consulting contract (Contract) on July 8, 2015. This Contract was attached to the complaint. Notably, this Contract is not the basis for these proceedings.
Specifically stating it was effective as of July 8, 2015, the Contract provided for consulting services related to reopening of the casino but noted Osceola would "have no authority to perform management responsibilities with regard to the [c]asino during the term of this [a]greement." After setting forth various consulting responsibilities, the Contract provided Osceola would be paid $100,000 per month, with certain incentive-based modifiers for opening the casino. The Contract provided its term shall last until the earlier of "(a) the anniversary date [24] months thereafter; or (b) the facility becomes managed pursuant to a Management Agreement approved by the [NIGC]."
The Contract also contained a waiver of sovereign immunity, set out in full below:
"Waiver of Sovereign Immunity. [Chukchansi Economic Development Authority], on its behalf and on behalf of [the Tribe], expressly, unequivocally and irrevocably (i) waives its sovereign immunity (and any defense based thereon) from any suit, action or proceeding or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, exercise of contempt powers, or otherwise) in any forum with respect to this [a]greement, or any of the transactions contemplated herein. [Osceola] with respect thereto shall have recourse to money damages as specified and limited in this [a]greement. This waiver of jurisdiction and enforcement thereto, is limited recourse only to the [c]asino assets, and no other asset of the Tribe. The limited waiver of sovereign immunity is only granted to [Osceola] and no other person or entity. The waiver of sovereign immunity is only granted in actions filed in the United States [District] Court for the Eastern District of California and any applicable federal appellate courts."
On the same day the Contract was signed and became effective, Tribal Resolution No. 2015-31 was issued, approving and authorizing the Contract. After setting forth the reasons why the Contract was needed, the resolution provided "that the Authority Board has determined that it is in the best interest of the Tribe to approve and authorize the [C]ontract between Osceola ... and [the casino] for professional services related to the Re-Opening of the [casino], attached hereto as Exhibit A."
The Management Agreement
According to Osceola, the parties also entered into an oral agreement for a management agreement. On July 29, 2015, a written version of this management agreement (Agreement) was signed, which was also attached to the complaint.
Under federal law, management agreements must be approved by the NIGC. Accordingly, the effective date of the Agreement was not the date it was signed. Rather, the Agreement included several provisos regarding its effective date and term. For example, in the initial recitals, the parties stated the "Agreement shall be operative and binding on the Parties upon the 'Effective Date' as hereinafter defined and shall continue for a term of five (5) years from the Effective Date, as hereinafter defined." The effective date was later defined in the Agreement as follows:
" 'Effective Date' " means the date five (5) days following the date on which all of the following listed conditions are satisfied:
"(1) written approval of this Agreement, and any documents collateral hereto identified by the [NIGC] as requiring such approval, is granted by the Chairman of the NIGC; and
"(2) the Tribe and the NIGC, as appropriate, have concluded background investigations of [Osceola] and other appropriate persons in accordance with applicable Legal Requirements; and
"(3) receipt by [Osceola] of all applicable licenses and permits."
Similarly, in article 1.2, the Agreement provided: "The objective of the Tribe and [Osceola] in entering into and performing this Agreement is [to] provide a legally enforceable agreement pursuant to which the Tribe will make certain commitments to [Osceola] and [Osceola] will manage the [casino] after the approval of the Management Agreement by the NICG. Upon approval by the Chairman of the NIGC, this Agreement is intended to be a legally enforceable and effective."
The final execution provision also tracks this language, noting the "Agreement shall be deemed 'executed' and shall be binding upon both Parties when properly executed and approved by the Chairman of the NIGC."
With respect to the term of the Agreement, the Agreement specifically provided in article 2.2 that: "This Agreement shall become binding upon the Parties on the Effective Date and continue thereafter for a period of five (5) years from and after the Effective Date (subject to any termination provisions of this Agreement)
The Agreement also provided an extensive list of management duties that Osceola would perform in exchange for compensation in the amount of 25 percent of the casino's net gaming revenue. According to the complaint, Osceola contends the parties reached an oral agreement that Chukchansi would submit the Agreement to the NIGC when the casino reopened and a mutual understanding that Osceola was providing consulting services at a reduced rate, and thereby losing revenue, by agreeing that Chukchansi could wait to submit the Agreement for approval until the casino reopened.
With respect to the waiver of sovereign immunity, the Agreement contained different terms than the Contract. These terms are set out in full below:
"8.1 Limited Waiver by the Tribe. The Tribe agrees to enact a Tribal Council resolution providing a limited waiver of the Tribe's sovereign immunity to suit in the same form as set forth below. The waiver shall not be effective until the Resolution is enacted by the Tribal Council, and a copy of the Resolution as enacted shall be attached as Exhibit 'C' and becomes a part of this Agreement.
"(a) The Tribe waives its sovereign immunity to suit only by [Osceola], and no other party, or an approved assignee, and strictly for the purposes of enforcing the terms of this Agreement.
"(b) The Tribe consents to suit in the United States District Court for the Eastern District of California, the United States Court of Appeals for the Ninth Circuit, and the United States Supreme Court, but only as to suits brought by [Osceola] for the enforcement of this Agreement. If the District Court for the Eastern District of California declines jurisdiction, the Tribe consents to suit in any court of competent jurisdiction and venue in California.
"(c) The Tribe hereby waives any requirement of exhaustion of Tribal remedies, and agrees that it will not present any affirmative defense based on any alleged failure to exhaust such remedies. The Tribe agrees not to commence any suit, action, proceeding or legal action in the Tribal Courts.
"(d) By this limited waiver of sovereign immunity, the Tribe consents to the granting of equitable and legal relief to enforce the terms of this Agreement, provided that any damages awarded by a court shall be limited to general compensatory damages. The court shall have no authority to order the execution of any award against any asset of the Tribe except the Tribe's share of Net Revenues, as defined in [the Indian Gaming Regulatory Act of 1988 (25 U.S.C. § 2701 et seq.)].
"(e) The term of this limited waiver of immunity shall be for the term of this Agreement and for a one (1) year period beginning immediately thereafter.
"(f) If the Tribe transfers its interests in this Agreement, it will provide a limited waiver of the sovereign immunity of the transferee that is substantially the same as the waiver granted herein."
Relevant to the disputes in this case, among the many other provisions of the Agreement, the parties warranted "that they shall not act in any way whatsoever, directly or indirectly, to cause this Agreement to be amended, modified, canceled, or terminated" and "that they shall take all actions necessary to ensure that this Agreement shall remain in full force and effect at all times." The Agreement also included a relatively standard entire agreement provision, stating the Agreement constitutes "the entire understanding of the Parties hereto regarding the management of the [casino] and supersedes all other prior agreements and understandings, written or oral, between the Parties regarding the management of the [casino]."
The day after the Agreement was signed, Chukchansi issued Tribal Resolution No. 2015-46. Set out in similar form to Tribal Resolution No. 2015-31, this resolution ultimately provided "that the Tribal Council has determined that it is in the best interests of the Tribe and its members that it approve the Management Agreement with Osceola ... as attached hereto and marked as Exhibit A."
Events After Signings
After both the Contract and Agreement were signed, Osceola assisted Chukchansi in obtaining significant financing in order to reopen the casino. As part of this financing, the parties allegedly modified the terms of the previously signed Agreement to provide Osceola a lower payment for a longer period of time. It appears these modifications occurred between December 2015 and April 2016. In addition, Osceola performed several services required to have the casino reopen, which it allegedly did on December 31, 2015. Osceola alleges the casino would not have reopened if not for its willingness to forego payment until the casino reopened. It further alleges that it would not have undertaken that financial risk absent the agreement that Chukchansi would submit the Agreement for approval.
Despite the casino reopening, the Agreement was not submitted to the NGIC. Osceola contends it continued assisting Chukchansi under the terms of the Contract, to its own financial detriment, until August 10, 2016.
The Lawsuit and Motion to Quash
Based on Chukchansi's failure to submit the Agreement to the NGIC, Osceola's suit, as amended, asserted claims of breach of contract, breach of the covenant of good faith and fair dealing, breach of oral contract, breach of implied covenant, fraud, and violation of Business and Professions Code section 17200 et. seq.
In response to the amended complaint, Chukchansi filed a motion to quash pursuant to Code of Civil Procedure section 418.10. In the notice of motion, Chukchansi wrote that it was filing the motion "on the grounds that this Court lacks subject matter jurisdiction over the claims in the First Amended Complaint because the defendants are immune from suit under the Doctrine of Tribal Sovereign Immunity and the claims are preempted." The notice was supplemented with a memorandum of law containing a roughly 10-page argument on tribal sovereign immunity and a short argument on preemption.
Osceola opposed the motion to quash. Its argument, however, was limited to a single contention, that a motion to quash was not appropriate if the underlying challenge was to subject matter jurisdiction. It then asked for sanctions based on the frivolous motion. In only one paragraph of that sanctions argument did Osceola attempt any argument on the merits of Chukchansi's claims. The entirety of that argument consisted of the following three points: "First, Article 8 of the Management Agreement at issue here contains a clear and unequivocal sovereign immunity waiver. Second, the Management Agreement was signed and fully executed by Defendants. Third, unlike the myriad of case law cited by Defendants in their motion, the Management Agreement, including the sovereign immunity waiver, was fully authorized and approved by an official tribal council resolution, Tribal Council Resolution No. 2015-46. [See Complaint, Exhibit 2]. Defendants do not and cannot dispute the genuineness of that resolution." At the hearing on the motion, Osceola argued its decision to fight on the procedural aspects only was proper, and sought a continuance to further address the merits if the court found the motion proper.
In its ultimate order, the trial court rejected Osceola's claims the motion to quash was not procedurally proper and its request for additional briefing. It then found sovereign immunity barred the action because the Agreement contained only "a proposed waiver of immunity" and that no agreement existed because "without the signature of the Chairman of [the NIGC], the [A]greement is void" under 25 Code of Federal Regulations part 533.7. Further finding that certain claims did not fall within the purported waiver, the court dismissed the entire action. This appeal timely followed.
DISCUSSION
In this appeal, Osceola again contends that Chukchansi's motion to quash was procedurally improper and should have been rejected on that ground. Relatedly, Osceola contends the court abused its discretion by failing to permit additional briefing. It further contends that Chukchansi properly waived its sovereign immunity. Finally, raising an argument from below that was not resolved by the trial court, Osceola contends there can be no preemption due to Chukchansi's conduct before the federal court. In resolving this case, however, we need not reach this final issue. The Trial Court Properly Considered Chukchansi's Motion
Osceola raises two procedural objections to Chukchansi's motion to quash, arguing the trial court could not properly consider the motion and abused its discretion by not permitting further briefing from Osceola. We reject these contentions.
Standards of Review
Whether a motion is procedurally proper is an issue of law, reviewed de novo. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) However, to the extent Osceola contends the trial court could not hear a properly pled motion that was improperly labeled, we review such decisions for an abuse of discretion. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 ["The principle that a trial court may consider a motion regardless of the label placed on it by a party is consistent with the court's inherent authority to manage and control its docket"].)
We review the trial court's denial of Osceola's request for further briefing for an abuse of discretion. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268 (Robinson).)
Discussion
Osceola's core procedural argument in this case relies primarily on a statement from Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036 that a "motion to quash service of summons lies on the ground that the court lacks personal, not subject matter, jurisdiction over the moving party." From this principle, Osceola contends Chukchansi's motion was procedurally improper because it was "based by its own terms solely on a purported lack of subject matter jurisdiction" argued through claims of sovereign immunity and preemption. Although Osceola acknowledges Chukchansi's position that its motion was proper under Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407 (Great Western Casinos) and similar cases, Osceola contends these cases are inapposite because the motion in this case was not a "a hybrid motion 'to stay/quash/dismiss' through which the defendant tribe 'claimed the state court lacked personal jurisdiction' " or otherwise identified itself as a special appearance challenging personal jurisdiction.
We agree with Chukchansi that this case is properly resolved through the analysis provided in Great Western Casinos. Although Osceola relies upon a claim that Great Western Casinos involved a "hybrid motion 'to stay/quash/dismiss' " the analysis of that case does not make it clear that such a specifically labeled motion was indeed filed. Rather, the motion at issue is referred to initially merely as a "motion to quash" and, in the formal recitation of the facts, as "a motion to stay the proceedings, or in the alternative to quash." (Great Western Casinos, supra, 74 Cal.App.4th at pp. 1411, 1414.) In the same section, the court notes that the trial court ultimately granted "their motions to quash and dismissed the action." (Id. at p. 1415.) It is only in the discussion section, where the court identifies the various bases upon which the motion sought relief that the court suggests "defendants moved to stay/quash/dismiss on the dual grounds of federal preemption and sovereign immunity." (Ibid.)
We think this parsing of language is important in understanding why Great Western Casinos ultimately determined a motion to quash could be utilized to dismiss an action against a recognized Indian tribe on sovereign immunity grounds. Upon identifying the underlying nature of the motion as one to "stay/quash/dismiss," the court noted that on appeal the primary challenge to the motion was that the "choice of a motion to quash to challenge the court's jurisdiction was procedurally infirm." (Great Western Casinos, supra, 74 Cal.App.4th at p. 1415.) The court then engaged in a substantial and persuasive analysis distinguishing Greener's statement that a motion to quash was procedurally improper when raising subject matter jurisdiction concerns. (Id. at pp. 1415-1419.)
In this analysis, the Great Western Casinos' court noted that although Greener found such a mechanism procedurally improper, it still upheld the dismissal on subject matter jurisdiction grounds "because if the relief sought had been granted, the effect of the judgment would have been to violate the law." (Great Western Casinos, supra, 74 Cal.App.4th at p. 1416.) The court then noted that although motions to quash on sovereign immunity grounds do raise subject matter jurisdiction claims, particularly if federal preemption questions exist, there is a significant inconsistency in the law regarding whether sovereign immunity claims are categorized as attacks on personal jurisdiction or subject matter jurisdiction. (Id. at pp. 1416-1417, citing 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 91, p. 627.) The court ultimately determined, however, that it need not resolve this inconsistency because of the underlying fact that subject matter jurisdiction claims can be raised at any point in the proceedings and, thus, that "no specified procedural vehicle should be required to bring the matter to the court's attention." (Great Western Casinos, at p. 1417.)
In our independent review, we agree with the analysis in Great Western Casinos. There are, in fact, both personal jurisdiction and subject matter jurisdiction concepts embedded within a claim of sovereign immunity. (See Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 294 ["Where there is no exception to foreign sovereign immunity the court lacks both subject matter and personal jurisdiction"]; Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction (2002) 115 Harv. L.Rev. 1559, 1609-1611 [discussing the "hybrid" nature of 11th Amendment jurisprudence on state sovereign immunity].) A motion identifying that basis for relief from the suit, whether raised as a motion to quash or a motion to dismiss, necessarily raises both angles and is therefore properly raised by either mechanism.
It is the specific nature of a recognized Indian tribe's claim to sovereign immunity that distinguishes this case from one like Greener, where the use of a motion to quash based on personal jurisdiction would not be proper if it raised only subject matter jurisdiction issues. (Greener v. Workers' Comp. Appeals Bd., supra, 6 Cal.4th at p. 1034 [noting assertion that court lacked personal jurisdiction in workers' compensation case confused personal jurisdiction for subject matter jurisdiction].) Indeed, in Greener, the court explained that the workers' compensation law "nowhere states that the Board is not subject to suit in the superior court," a critical failure because personal jurisdiction is determined "by the legal existence of the party and either its presence in the state or other conduct permitting the court to exercise jurisdiction over the party." (Id. at pp. 1034-1035.) Thus, in context, the court's statement that a "motion to quash service of summons lies on the ground that the court lacks personal, not subject matter, jurisdiction over the moving party" shows that the procedural vehicle raised was improper because the underlying assertion lacked any connection to the concept of personal jurisdiction, not because the vehicle was wholly inappropriate in all circumstances. (Id. at p. 1036 [further noting a motion to quash should not be used as an alternative to a demurrer].) We, similar to the court in Great Western Casinos, find Greener distinguishable in the context of tribal sovereign immunity claims because personal jurisdiction is inherently part of any motion alleging sovereign immunity.
Osceola relatedly contends that it is aware of no authority for "for converting [Chukchansi's] improper Motion to Quash into a motion to challenge subject matter jurisdiction." Even if such a conversion were required, contrary to Osceola's contention, the law certainly allows it. "The proposition that a trial court may construe a motion bearing one label as a different type of motion is one that has existed for many decades. 'The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.' " (Sole Energy Co. v. Petrominerals Corp., supra, 128 Cal.App.4th at p. 193.)
Chukchansi raised issues of sovereign immunity and preemption in a properly noticed motion labeled as a motion to quash. As stated above, there are certainly recognized portions of the sovereign immunity doctrine that invoke concepts of personal jurisdiction. However, even if wholly mislabeled, there is no question that a motion to dismiss on the basis of sovereign immunity is a motion the trial court is empowered to hear and that the motion submitted completely raised that claim, along with preemption. Thus, to the extent the court desired to manage its docket by proceeding with the fully briefed motion before it, it did not abuse its discretion in doing so.
In line with its argument the motion was procedurally improper, Osceola contends the trial court erred by failing to grant it additional time to brief the case on the merits. Citing to Robinson, supra, 168 Cal.App.4th at p. 1267, Osceola argues that it is perfectly acceptable to raise only a procedural objection to a motion. We do not agree.
First, we note that Robinson dealt with a situation where notice was improper, not any contention that the claims raised could not be argued in a particular format. Even in that context, however, the court explained that counsel should make as strong of an argument as possible on the merits and fully explain both why the lack of notice was prejudicial and required more time. (Robinson, supra, 168 Cal.App.4th at p. 1265.) Thus, even under Osceola's core case, it is clear that simply ignoring the merits is a poor tactical choice.
Second, we have found that the motion filed was, in fact, proper. Osceola's tactical decision to avoid arguing the merits necessarily relied on their confidence that their procedural position was correct. Failing to properly predict the outcome of such a position is a natural risk of such tactics, and strongly demonstrates why merits arguments should be raised in the alternative regardless of procedural disputes.
Finally, even if Osceola's position were accepted, we see no prejudice in the trial court's decision. There is no dispute that the claims were properly preserved, and the full merits arguments have been raised and argued under a de novo standard of review. In the course of these arguments, no additional contentions regarding necessary evidence or factual findings have been raised that demonstrate any alleged error by the trial court requires remand. We thus reject Osceola's procedural arguments for reversal. Chukchansi Is Protected By Sovereign Immunity
Substantively, Osceola contends the trial court wrongly concluded that sovereign immunity barred its claims against Chukchansi. Osceola argues the Agreement contains a clear indication of intent to waive sovereign immunity that is not dependent upon approval of the Agreement by NIGC, and that all claims raised fall within the scope of that waiver. We do not agree.
Standard of Review and Applicable Law
Relevant to the issues raised in this case, " 'Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. [Citations.] This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But "without congressional authorization," the "Indian Nations are exempt from suit." ' " (Great Western Casinos, supra, 74 Cal.App.4th at p. 1419.) Thus, under "federal law, an Indian tribe is a sovereign authority and, as such, has tribal sovereign immunity, not only from liability, but also from suit." (Lawrence v. Barona Valley Ranch Resort & Casino (2007) 153 Cal.App.4th 1364, 1368 (Lawrence).) "It must be recognized that 'sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation.' " (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1182 (Warburton).)
"Pursuant to tribal sovereign immunity principles, an Indian tribe is subject to suit only where Congress has so authorized or where the [t]ribe has waived its immunity by consenting to suit." (Lawrence, supra, 153 Cal.App.4th at p. 1368.) " 'It is settled that a waiver of sovereign immunity " 'cannot be implied but must be unequivocally expressed.' " ' " (Great Western Casinos, supra, 74 Cal.App.4th at p. 1419.) Such consent must be clear, and when given "any conditional limitation imposed thereon must be strictly construed and applied." (Lawrence, at p. 1369; see also People v. Miami Nation Enterprises (2016) 2 Cal.5th 222, 235 [immunity may be waived, but such waiver must be clear].)
We review claims of tribal sovereign immunity de novo. (Lawrence, supra, 153 Cal.App.4th 1369.) Similarly, where there is no reliance on extrinsic evidence, the interpretation and construction of a written instrument may be conducted de novo. (Warburton, supra, 103 Cal.App.4th at p. 1180.)
The Conditions Required to Waive Sovereign Immunity Were Not Met
Osceola contends that the terms of the Agreement contained a clear waiver of sovereign immunity with respect to disputes under the Agreement. Osceola points to the language stating Chukchansi specifically "waives its sovereign immunity" and "consents to suit" in "any court of competent jurisdiction and venue in California." It then notes that Chukchansi passed a tribal resolution approving the Agreement and determining it was in the best interests of Chukchansi. Legally, it contends these actions place the case squarely in line with those finding a clear and valid waiver of sovereign immunity.
Osceola's citations to and overall reading of the Agreement are too narrow to succeed. While it is correct that the Agreement contains language stating the Tribe will waive its sovereign immunity, that language does not exist in a vacuum. Article 8.1 of the Agreement contains the full scope of Chukchansi's waiver. The language cited by Osceola is contained in subdivisions (a) through (d) of that article. Subdivision (e) of article 8.1 states: "The term of this limited waiver of immunity shall be for the term of this Agreement and for a one (1) year period beginning immediately thereafter." Thus, under the plain and express terms of the Agreement, any waiver of sovereign immunity is only effective "for the term of the Agreement" plus one year.
The term of the Agreement is specifically defined in article 2.2: "This Agreement shall become binding upon the Parties on the Effective Date and continue thereafter for a period of five (5) years from and after the Effective Date...." The "Effective Date" is also defined in the Agreement as, "the date five (5) days following the date on which all of the following listed conditions are satisfied: [¶] (1) written approval of this Agreement ... by the [NIGC] ... ; and [¶] (2) the Tribe and the NIGC, as appropriate, have concluded background investigations ... in accordance with applicable Legal Requirements; and [¶] (3) receipt by [Osceola] of all applicable licenses and permits."
Thus, under the express terms of the Agreement and regardless of any disputes whether a separate tribal resolution is required to effectuate the alleged wavier, there is no possible waiver until the effective date of the Agreement, a date that does not trigger until the NIGC has approved the Agreement and other steps have been taken. This timing of the waiver, triggering from the effective date, is consistent with several provisions of the Agreement stating that nothing in the Agreement is executed, binding, or effective until after approval by the NIGC.
The provisions governing any waiver of sovereign immunity with respect to the Agreement are, in this sense, fundamentally different than those governing the Contract. In the Contract, the parties agreed to an immediately effective agreement that contained an immediately effective waiver of sovereign immunity. There was no future effective date, no requirement of additional action, and no expectation that a third party's conduct would be required to initiate the start of the Contract. In making the Contract, the parties demonstrated that they knew how to effectuate an immediately effective waiver of sovereign immunity. Although the plain language of the Agreement shows they did not contemplate the same arrangement with respect to that Agreement, we note that the difference in language further solidifies an understanding that such a delayed waiver of sovereign immunity was either an intentional agreement between the parties or an understandable byproduct of entering into an agreement prior to the point Osceola had been approved by the NIGC as the manager.
Ultimately, the critical facts are clear and not in dispute. The NIGC has not approved the Agreement. Under the plain language of the document, then, the Agreement has not become binding, the effective date has not been set, and thus no waiver of sovereign immunity specifically dependent upon the start of the Agreement has become effective. In this sense, this case is fundamentally different from those cited by Osceola, including cases like C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma (2001) 532 U.S. 411. In none of the cases cited by Osceola finding a valid waiver of sovereign immunity was there a condition precedent to the initiation of the waiver on par with what exists here. While certain ratifying requirements can be overcome if the intent of a tribe to waive sovereign immunity is clear, we have found no case that suggests such a waiver can be dependent upon the existence of an enforceable contract and at the same time be binding without the presence of an enforceable contract. Yet that is exactly what Osceola would have us hold here.
The parties agreed that if and when Osceola was approved as the manager of the casino, Chukchansi would waive its sovereign immunity with respect to any disputes arising under the Agreement that would become effective from that act. In doing so, the parties drafted a waiver that left open the possibility that, for one reason or another, Osceola would not be approved as the manager and, as a direct consequence, no waiver would arise. Such a result could have arisen for many reasons—because Osceola could not qualify under the federal regulations, the parties mutually agreed not to proceed with opening the casino, or Chukchansi simply decided they no longer wanted to do business with Osceola, among others—and these numerous potential reasons, along with the extensive federal regulations in this area, demonstrate it is not absurd to read the Agreement this way.
While Osceola contends it was fraudulently induced into making such an abusable Agreement, the law is clear that equitable factors do not influence whether a waiver exits. (Warburton, supra, 103 Cal.App.4th at p. 1182.) Similarly, the language of the Agreement is clear that no waiver could exist until the effective date of the Agreement, at the earliest. As that date was never set, no waiver arose that would permit the current lawsuit to proceed. The trial court thus correctly held that the suit was barred on sovereign immunity grounds.
DISPOSITION
The judgment is affirmed. Chukchansi's motion to strike irrelevant portions of the clerk's transcript is denied. Costs are awarded to Chukchansi.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
PEÑA, J.