Findleton v. Coyote Valley Band of Pomo Indians

The issues raised by the Tribe's belated arguments are not purely legal. For example, Findleton points out that the Rental Contract, the Construction Contract and the Third Amendment all relate to the Tribe's casino and infrastructure development project and that the Construction Contract addresses charges for equipment rental (which is the subject of the Rental Contract), and argues that pursuant to Civil Code section 1654 the three agreements should be "considered as one agreement," and their provisions should be treated as "merge[d]." Responding to this argument, the Tribe concedes "it is a question of fact whether multiple contracts are intended to be elements of a single transaction under section 1642" (see Pilcher v. Wheeler (1992) 2 Cal.App.4th 352 , 355, 3 Cal.Rptr.2d 533 ), but argues the relevant facts here "are clear." But this misses the point. By failing to raise this factual issue below and failing to contest Findleton's substantive right to claim fees under the Rental Agreement, the Tribe deprived Findleton of the opportunity of introducing whatever extrinsic evidence Findleton might have had at his disposal on the integration issue, and deprived the superior court of the opportunity to address the factual issue in the first instance. In addition, the Tribe relies on assertions of fact that Findleton disputes.^[1] Findleton also contends that "the exact same amount of fees and costs would have been incurred even if the attorney fee provision covered only the Rental Agreement because all the research, briefing and appearances in the two earlier

fees to Findleton. The Tribe is partially correct.

As we have discussed, we addressed the scope of the waiver in Findleton I to the extent we held it encompassed state court enforcement of the right to arbitrate disputes under the agreements and state court enforcement of any arbitration award. However, the parties did not raise in Findleton I , and we had no occasion to decide, whether judicial enforcement of arbitration included a potential motion by Findleton for attorney fees. Unlike the Tribe's other jurisdiction-related arguments, this one is not barred by the law of the case, and we therefore must resolve it here.

Fortunately, its resolution is not difficult. The issue is narrow; Findleton sought and the superior court awarded only the fees Findleton incurred in prosecuting the first appeal, in which he sought to enforce his right to arbitrate. In Findleton I , we held the Tribe's waiver of sovereign immunity encompassed judicial enforcement of Findleton's contractual right to arbitrate. Judicial enforcement of the right to arbitrate includes awarding fees specifically incurred to enforce that right.^[3] By adopting the Tribal Resolution

National Farmers Union Ins. Cos. v. Crow Tribe (1985) 471 U.S. 845 , 856-857, 105 S.Ct. 2447 , 85 L.Ed.2d 818 , a case based on federal question jurisdiction.

The Tribe has not demonstrated that tribal remedy exhaustion was required here.^[5] Although there is some support in the law that has been cited to us that tribal court proceedings need not necessarily already be pending before the exhaustion principles premised on tribal sovereignty come in to play (see,

Krempel , supra , 125 F.3d at p. 623.) By analogy, it concluded, "Obviously, to urge that a plaintiff must exhaust his tribal remedies at a time when a tribal court does not exist would, indeed, inject a futile requirement. Although the district court did not require this, its post facto reasoning would have a similar effect. Under the circumstances, we hold as a matter of law that Krempel, who had filed a timely claim in an existing forum, was not required to exhaust tribal remedies at a later time when the tribal court came into existence." ( Id . at p. 624.)

Findleton also cites decisions from the Ninth and Fifth Circuits to the same effect. (See Johnson v. Gila River Indian Community (9th Cir.1999) 174 F.3d 1032 , 1036 [error to dismiss plaintiff's claim on exhaustion grounds where there was genuine question whether functioning tribal court existed at time complaint was filed and thus exhausting would be futile]; Comstock Oil & Gas Inc. v. Alabama and Coushatta Indian Tribes (5th Cir.2001) 261 F.3d 567 , 572-573 [affirming decision that plaintiffs were not required to exhaust tribal remedies before filing federal court action where no tribal court properly existed at time].)

This case falls squarely within the reasoning of Krempel . Here, there was no evidence before the trial court indicating there was a tribal court in existence in 2012 when Findleton first filed his petition to compel arbitration in the superior court,^[7] and Findleton contends there was still was no functioning tribal court even five years later, well after he had renewed his request by moving to compel arbitration after we had reversed the earlier dismissal and remanded the case to the superior court. Findleton's petition thus did not interfere with the Tribe's sovereignty in the way that filing such a petition in state court rather than initiating one in a functioning tribal court would have done. Nor would requiring exhaustion at this late date serve any purpose other than further delay of a case that is already six years old. Under the analysis of Krempel and its progeny, we conclude no exhaustion was required. Having reached that conclusion, we need not address Findleton's further argument that the Tribe's assertion of tribal court jurisdiction was motivated by a desire to harass or conducted in bad faith.

extended "to arbitration of disputes regarding those agreements " and "to judicial enforcement of the right to arbitrate and of any arbitration award, as indicated by the arbitration provision of the agreements ." ( Id . at p. 1217, 205 Cal.Rptr.3d 699 , italics added.) The Tribe is barred by law of the case from arguing that it did not waive its sovereign immunity with respect to the Rental Contract.

The Tribe also argues that the superior court was not authorized "to take any action at all, because the waiver language expressly repudiated state court jurisdiction." This argument, too, is barred by law of the case because in the prior appeal we reversed the superior court's grant of the motion to quash for lack of jurisdiction and remanded the case to the superior court for further proceedings. We necessarily decided that the Tribe waived its sovereign immunity and thereby conferred jurisdiction on the superior court (as well as the state appellate courts)-not to resolve the underlying dispute, but to enforce the arbitration clauses in the agreements. ( Findleton I , supra , 1 Cal.App.5th at p. 1218, 205 Cal.Rptr.3d 699 .) The Tribe is barred from rearguing the issue.

The Tribe makes one further argument concerning sovereign immunity and jurisdiction. Arguing that our prior decision addressed only "the issue of whether a waiver of immunity exists" and not "the scope of the waiver (italics added),"^[2] it contends its waiver of sovereign immunity does not extend to, or afford the superior court jurisdiction, to award attorney

and thereby consenting to judicial enforcement of the right to arbitrate in any court having jurisdiction, the Tribe waived its sovereign immunity as to attorney fees incurred in enforcing that right and conferred on the state courts jurisdiction to award such fees.^[4]

For the foregoing reasons, we reject the Tribe's contention that the superior court lacked jurisdiction to rule on Findleton's motion for attorney fees, and hold that it waived sovereign immunity as to the fees Findleton incurred to enforce his right to arbitrate.

The Tribe's Contention That Comity Required the Superior Court to Abstain from Making Further Rulings

The Tribe next argues that the superior court erred in failing to abstain from issuing any further rulings after we remanded the case to that court. It relies on Iowa Mutual Ins. Co. v. LaPlante (1987) 480 U.S. 9 , 107 S.Ct. 971 , 94 L.Ed.2d 10 ( LaPlante ), in which the Supreme Court held that federal policy supporting tribal self-government requires federal courts, as a matter of comity, to stay their hands to give tribal courts a full opportunity to first determine their own jurisdiction. ( Id . at pp. 15-16, 107 S.Ct. 971 .) The court described this rule as one of exhaustion of remedies, stating "tribal remedies [must] be exhausted before the question is addressed by the District Court." ( Id . at p. 15, 107 S.Ct. 971 .) LaPlante involved a case based on federal diversity jurisdiction. ( Id . at p. 11, 107 S.Ct. 971 .) The tribal remedy exhaustion rule it applied was first articulated in

e.g., Crawford v. Genuine Parts Co. (9th Cir.1991) 947 F.2d 1405 , 1407 ), Findleton cites several cases holding that exhaustion of tribal court remedies is not required when no tribal court existed at the time the action was commenced. We find these cases persuasive, and applicable here.^[6]

In Krempel v. Prairie Island Indian Community (8th Cir.1997) 125 F.3d 621 ( Krempel ), the plaintiff who had been employed by a tribe sued the tribe in state court for sexual harassment, discrimination and other employment-related claims. ( Id . at p. 622.) The tribe removed the case to federal court and moved to dismiss for failure to exhaust tribal remedies. ( Ibid . ) The district court granted the motion and dismissed the case, reasoning that the development of the tribal court system after the case was filed weighed in favor of tribal court exhaustion. ( Id . at p. 623.)

The Eighth Circuit reversed, because when the case was filed no tribal court existed and the tribal court did not become fully operational until more than two months after removal. ( Krempel , supra , 125 F.3d at p. 623.) It explained, "The Supreme Court has required exhaustion of ' available tribal remedies before instituting suit.' [ LaPlante ], 480 U.S. at 19 , 107 S.Ct. at 978 (our emphasis)." ( Ibid . ) Recognizing "tribal sovereignty and the resultant need to exhaust cases in tribal court," the court "deem[ed] it inherently unfair to a plaintiff to require exhaustion in a court that was not operational until after the claim was filed." ( Ibid. ) Further, the court observed, "the application of the exhaustion doctrine depends on the purposes of exhaustion being served," and "[o]ne of the main purposes of the exhaustion requirement ... is the principle of judicial economy." ( Ibid. ) It concluded that principle would not be served in the case before it. "As much as tribal exhaustion might have been desirable in the initial stages of this suit, to require a plaintiff to turn back the clock and exhaust previously unavailable remedies is contrary to judicial efficiency and prejudicial to an individual who brings suit in a forum available for immediate resolution of his claim." ( Ibid . )

The court also reasoned that the Supreme Court had analogized the doctrine of exhaustion to that of abstention, under which a "district court must determine whether 'the opportunity to raise and have timely decided' before a state tribunal was available to the plaintiff when he brought his federal suit," and if the state tribunal is deemed inadequate, abstention is not