Fernandez v. Marston

1

SHAWN FERNANDEZ et al., Plaintiffs and Appellants, v. LESTER MARSTON, et al., Defendants and Respondents

F084993

California Court of Appeals, Fifth District

April 26, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County Super Ct. No. MCV084912, Michael J. Jurkovich, Judge.

The Reich Law Firm, Jeff Reich and Paul Hager for Plaintiffs and Appellants.

Collins + Collins and James C. Jardin for Defendant and Respondent Lester Marston.

OPINION

MEEHAN, J.

INTRODUCTION

Plaintiffs Shawn Fernandez and Brian Auchenbach appeal from the trial court's order granting defendant Lester Marston's motion for summary judgment. Plaintiffs were employed as tribal police officers by a faction of tribal members of the Picayune Rancheria of the Chukchansi Indians Tribe (Tribe) ultimately led by Tex McDonald (McDonald faction). The McDonald faction had asserted it was the governing Tribal Council for the Tribe in opposition to other members of the Tribe. Acting as the governing Tribal Council, the McDonald faction retained defendant Marston as counsel to represent it in its intra-tribal dispute over control of the Tribe's bank accounts and investment funds. Defendant was later asked by the McDonald faction to draft ordinances authorizing the creation of a tribal police force and a self-help eviction process that allowed tribal police officers to remove trespassers from Tribal property. The intra-tribal dispute escalated over control of certain gaming offices inside the casino, and the McDonald faction hired plaintiffs in October 2014 as tribal police officers. At the direction of the McDonald faction, the tribal police officers participated in an eviction operation on October 9, 2014, designed to remove opposing faction members from inside the casino, among other things.

As a result of their actions as tribal police officers conducting the eviction, plaintiffs were arrested by deputies of the Madera County Sheriff's Office (MCSO) and were charged with multiple crimes stemming from their participation in the eviction. In 2015, plaintiffs filed suit against defendant and Mark Levitan, another attorney for the faction, for negligence, malpractice and fraud, alleging the attorneys falsely and misleadingly counseled plaintiffs regarding the legality of the eviction operation. Defendant filed summary judgment, which the trial court granted.

For the reasons discussed below, we conclude the trial court properly sustained defendant's objections to portions of the declaration evidence offered by plaintiffs. Moreover, we conclude defendant did not owe a duty of care to plaintiffs necessary to establish claims for negligence, malpractice or negligent misrepresentation. As for the fraud claim, plaintiffs failed to establish any disputed issue of fact regarding whether any representations of fact were communicated to plaintiffs, and, thus, that defendant communicated statements of fact with an intent to deceive plaintiffs.^[1]

FACTUAL BACKGROUND

This case was originally filed in Madera Superior Court in 2015 but was subsequently transferred to Mendocino Superior Court, where defendant and then codefendant Levitan filed an anti-SLAPP motion pursuant to Code of Civil Procedure section 425.16.^[2] That motion was granted by the trial court, but the order was reversed on appeal to the First District Court of Appeal. The case proceeded in Mendocino Superior Court until the matter was transferred back to Madera Superior Court, and that court subsequently granted defendant's motion for summary judgment, which plaintiffs now appeal.

I. General Factual Background

The underlying events concern an intra-tribal dispute in 2014 regarding which group of tribal members represented the legitimate Tribal Council for the Tribe, which is the owner and operator of the Chukchansi Gold Resort and Casino. Defendant is a California attorney who represented one of the disputing factions.

In February 2013, defendant was retained by Nancy Ayala, a member of the Tribe who regarded herself as the chairperson for the Tribe's governing council. She represented to defendant that former members of the Tribe's governing council were claiming to be the lawful, governing council for the Tribe (Lewis faction). Defendant agreed to represent the group then aligned with Ayala (which was later chaired by successor Tex McDonald)^[3] (McDonald faction) in connection with the leadership dispute with the Lewis faction.

At the time defendant was retained, the McDonald faction was in control of the Tribe's governmental center, which consisted of a group of buildings, including the Butler Building. At some point after defendant was retained, supporters of the Lewis faction "broke in" and occupied the Butler Building. In response to this event, defendant drafted an ordinance for approval by the McDonald faction (purporting to be the legitimate Tribal Council for the Tribe) that provided for the creation of a tribal police department; the adoption of peace officer standards; and allowed for the negotiation of a deputization agreement with the Department of the Interior to have tribal police officers commissioned as federal officers with the authority to enforce federal-and with the consent of the Tribe-tribal law. Defendant also drafted a self-help eviction ordinance to allow tribal police officers to take possession of buildings under the occupation of trespassers, provided those officers did not breach the peace. According to defendant, the Lewis faction voluntarily vacated the Butler Building at some point after defendant drafted the ordinances and submitted them for approval.^[4]

In a declaration subsequently filed in November 2014,^[5] defendant described the advice and opinions he gave to the McDonald faction (holding itself out as the legitimate Tribal Council) as follows: he "rendered a number of legal opinion's [sic] to the Tribal Council. In those opinions, I advised the Tribal Council that the present Tribal Council, chaired by Tex McDonald, was the duly elected Tribal Council of the Tribe, that the Tribal Council had the authority to establish its own police department; that the Tribe had criminal jurisdiction over Indians and, in certain circumstances, non-Indians on the Tribe's reservation, and that the Tribal Council had the authority to authorize its Tribal Police department to enforce Tribal law against all persons subject to the Tribe's jurisdiction."

During the time defendant was advising the McDonald faction on these issues, Gary Montana served as the faction's general counsel and maintained an office in a building on the Tribe's reservation. Later, the McDonald faction also hired attorney Levitan to provide it with legal advice in the ongoing intra-tribal dispute.

In August 2014, defendant was asked to contact Tom Slovak, counsel for the MCSO.^[6] Defendant sent an email to Slovak on August 27, 2014, on which Levitan was copied:

"I want to clear up some confusion that the Sheriff may have regarding the Tribe's criminal jurisdiction. Public Law 280 did not divest Picayune of criminal jurisdiction over Indians on its Reservation. The federal courts [citations], state attorney generals [citation], Solicitor's Office for the Department of the Interior [citation] and legal scholars [citation] all agree that P.L. 280 did not divest Indian tribes of criminal jurisdiction over Indians within Indian Country. Thus, Picayune does have the right to establish a police force and to deputize its officers with the powers of arrest and to enforce tribal law. Please forward this information to the Sheriff. I will let you know in advance if the Tribe decides to establish its own police force."

Meanwhile, at some point in September 2014, the Lewis faction began occupying the Tribe's gaming offices located within the Chukchansi Gold Resort and Casino. Among other things, the McDonald faction wanted access to the gaming offices to obtain records necessary to keep the casino open. The McDonald faction hired Oliveira in September 2014 as police chief for the McDonald faction's police force (ostensibly created by certification of the ordinance defendant had drafted), and between September 12, 2014, and October 2, 2014, Oliveira developed the plan to evict the Lewis faction from the gaming offices. As part of the plan, Oliveira hired plaintiffs as tribal police officers. According to Oliveira's declaration, he never obtained any legal advice from defendant verbally or in writing about the development or the implementation of the eviction plan, nor was defendant present when Oliveira presented the plan to the McDonald faction for authorization (again, purporting to act as the legitimate and governing council for the Tribe).^[7] An "ASSUMPTIONS/EXPECTATIONS" section of the plan contained the following statement, among others: "Based on the MCSO['s] complete lack of understanding of PL 280 and tribal sovereignty, they may attempt to arrest tribal police officers for 'false imprisonment' or 'kidnapping.' Tribal police officers will not submit to arrest in the performance of their duties. The MCSO has an option of filing complaints with the Madera County District Attorney's Office. Tribal attorney Mark Levitan will be onsite and will address the issue, if necessary."

On September 14, 2014, during the time Oliveira was preparing the eviction plan, defendant again emailed Slovak at the request of Oliveira, copying Levitan on the email:

"Sorry to bother you on your Sunday but I am in the office working and I wanted to make sure that you were informed about a number of items pertaining to Picayune. First the Council has hired a new attorney to assist it on the Reservation. His name is Mark Levitan. He is a very good lawyer and is very...