Pitoitua v. Gaube

534 P.3d 882

Elizabeth PITOITUA, Administratrix for the Estate of Hana M. Letoi and Guardian for minors Wesley Tavete Letoi, Suresa Sarai Letoi and Melissa Pepesina Letoi, Appellants,

v.Clarence GAUBE, Abigail Ingram, Jonathan Norman, Qui Nguyen, James Arbuckle, Julie Corley, Tyler Jefferys, Clifford Fejeran, Jessica D'Arcis, Austin Guthrie, in each of their personal capacities, Respondents.

No. 84359-1-I

Court of Appeals of Washington, Division 1.

Filed September 5, 2023

Gabriel Steven Galanda, Ryan David Dreveskracht, Galanda Broadman, PLLC. 8606 35th Ave. Ne Apt. Lw1, Seattle, WA, 98115-3677, Matthew Jacob Slovin, Keating Muething & Klekamp PLL, 1 E 4th St. Ste. 1400, Cincinnati, OH, 45202-3752, for Appellants.

Thomas Bradley Nedderman, Amber L. Pearce, Floyd, Pflueger & Ringer, P.S., 3101 Western Ave. Ste. 400, Seattle, WA, 98121-3017, for Respondents.

PUBLISHED OPINION

Mann, J.

¶1 Hana Letoi died after an altercation with her partner, Nomeneta Tauave, in the parking lot of the Tulalip Resort Casino (casino). Elizabeth Pitoitua, the administratix for Letoi's estate, sued multiple casino employees that were present that night for the negligent failure to intervene and protect Letoi. The trial court dismissed the complaint for lack of jurisdiction based on tribal sovereign immunity and the absence of a legal duty. Pitoitua appeals and argues that (1) tribal sovereign immunity does not extend to tribal employees, (2) the defendants owed, and breached, a common law duty to Letoi, and (3) the employees breached their duty under the voluntary rescue doctrine. We agree with Pitoitua that the trial court erred in dismissing the case based on tribal sovereign immunity. But the trial court did not err in concluding that the employees did not owe a legal duty to Letoi. We therefore affirm.

I

¶2 On October 23, 2020, Letoi visited the casino with her partner Tauave. The casino is located on the federally charged municipality of Quil Ceda Village and owned by the Tulalip Tribes (Tribes).

¶3 After drinking a large amount of alcohol, Tauave became physically violent toward Letoi while inside the casino. Tauave forcefully grabbed Letoi's neck while they argued.¹ At about 6:41 p.m., Clifford Fejeran observed the altercation between Letoi and Tauave.² Fejeran reported the altercation to Tyler Jefferys and Qui Nguyen but they said that the situation had "been cleared." Nevertheless, security was informed by another casino employee that Tauave had not actually left the premises. Clarence Gaube and Jefferys saw Tauave but did not confront him or ask him to leave the casino.

¶4 Gaube and Jessica D'Arcis saw another altercation at about 7:45 p.m. Abigail Ingram contacted Letoi and Tauave at about 7:46 p.m. She did not try to physically separate the couple despite the obvious threat to Letoi. Instead, Ingram allowed Letoi and Tauave to leave the casino together.

¶5 At some point Nguyen, James Arbuckle, and Julie Corley were notified of Tauave's assault of Letoi.

¶6 At about 7:48 p.m., Tauave yelled for Letoi to come with him to their vehicle. Letoi and Tauave entered the vehicle at about 7:50 p.m. Nguyen told Gaube and Jonathon Norman to follow the couple, but only from a distance. At about the same time Norman heard loud arguing from the parking lot. Gaube saw Tauave grab Letoi by the neck and lower area and shake her.

¶7 At 7:53 p.m., Tauave began to reverse the vehicle to leave the property after he saw Gaube watching the assault. Tauave then pushed Letoi out of the moving vehicle. Only then did Gaube call for police assistance.

¶8 Letoi died two days later from hypoxic ischemic encephalopathy, that is, strangulation.

¶9 Elizabeth Pitoitua, the administratrix of Letoi's estate, and guardian for Letoi's minor children, sued Gaube, Ingram, Norman, Nguyen, Arbuckle, Corley, Jefferys, Fejeran, D'Arcis, and Austin Guthrie (employees). The complaint alleged causes of action for negligence, negligent infliction of emotional distress, and loss of parental consortium. The complaint named each of the employee defendants in their "personal capacity only." For example, for Gaube, the complaint stated:

Defendant Gaube is sued in his personal capacity only. The suit is brought against Defendant Gaube in his capacity as a tribal employee acting within the scope of his employment, and any judgment against him will not operate against the Tulalip Tribes. This is not a suit against Defendant Gaube in his official capacity. It is a suit against Defendant Gaube to recover for his personal actions, which will not require action by the Tulalip Tribe or disturb the Tribes’ property.

¶10 The trial court granted the employees’ motion for judgment on the pleadings under CR 12(c). The trial court found that (1) Pitoitua's allegations against the employees in their personal capacities failed because they owed no personal duty to Letoi as casino employees, even if the establishment itself owed her a duty and (2) the state court lacked subject matter jurisdiction because sovereign immunity barred the claims as the Tulalip Tribes were the real parties in interest, not the individual defendants.

¶11 Pitoitua appeals.

II

¶12 We review a CR 12(c) dismissal de novo. Davidson v. Glenny, 14 Wash. App. 2d 370, 375, 470 P.3d 549 (2020). Like a CR 12(b)(6) motion, the purpose of a CR 12(c) motion is to "determine if a plaintiff can prove any set of facts that would justify relief." P.E. Sys., LLC v. CPI Corp., 176 Wash.2d 198, 203, 289 P.3d 638 (2012). On a CR 12(c) motion, "[f]actual allegations contained in the complaint are accepted as true." Silver v. Rudeen Mgmt. Co., Inc., 197 Wash.2d 535, 542, 484 P.3d 1251 (2021).

When applying the CR 12 standard, we grant the plaintiff the benefit of all reasonable inferences from the factual allegations in the complaint, as well as hypothetical facts consistent with the complaint. Trujillo v. Nw. Tr. Servs., Inc., 183 Wash.2d 820, 830, 355 P.3d 1100 (2015).

¶13 Courts may dismiss under CR 12 for lack of subject matter jurisdiction. CR 12(b)(1). The existence of subject matter jurisdiction over a party asserting tribal sovereign immunity is a question of law that we review de novo. Young v. Duenas, 164 Wash. App. 343, 348, 262 P.3d 527 (2011).

A

¶14 Pitoitua first argues that the trial court erred in dismissing the action for lack of subject matter jurisdiction because tribal sovereign immunity does not apply when the claims were asserted against the employees acting in their personal capacity. We agree.

¶15 Tribal sovereign immunity arises under federal law. Young, 164 Wash. App. at 348-49, 262 P.3d 527. An Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 140 L.Ed.2d 981, 140 L. Ed 2d (1998). "Sovereign immunity extends not only to the tribe itself, but also to tribal officers and tribal employees, as long as their alleged misconduct arises while they are acting in their official capacity and within the scope of their authority." Young, 164 Wash. App. at 349, 262 P.3d 527.

¶16 "Once a defendant requests dismissal under CR 12(b)(1) on the basis of sovereign immunity, the party asserting jurisdiction has the burden of proving the other party has no immunity or waived it." Long v. Snoqualmie Gaming Comm'n, 7 Wash. App. 2d 672, 679, 435 P.3d 339 (2019).

¶17 We follow Lewis v. Clarke, 581 U.S. 155, 137 S. Ct. 1285, 197 L. Ed. 2d 631 (2017), to determine whether sovereign immunity bars a suit against tribal employees. In Lewis, a tribal employee was sued after causing a car crash on an off-reservation state highway. 581 U.S. at 159-60, 137 S.Ct. 1285. The Court rejected the sovereign immunity defense, holding that the lawsuit was not against the tribal employee in his official capacity, but instead "is simply a suit against Clarke to recover for his personal actions, which ‘will not require action by the sovereign or disturb the sovereign's property.’ " Lewis, 581 U.S. at 163, 137 S.Ct. 1285 (quoting Larson v. Domestic and Foreign Com. Corp., 337 U.S. 682, 687, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949) ).

¶18 The Supreme Court held that to determine whether an action is one of official or personal capacity, "courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit." Lewis, 581 U.S. at 161-62, 137 S.Ct. 1285. "In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign." Lewis, 581 U.S. at 162, 137 S.Ct. 1285.

¶19 The Ninth Circuit recently applied Lewis in Acres Bonusing v. Marston, 17 F.4th 901 (9th Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 2836, 213 L.Ed.2d 1065 (2022). In Acres Bonusing, Blue Lake Rancheria sued actors from a tribal court arising from a casino gaming system dispute. 17 F.4th at 905. Entities sued included the tribal court judge, his law clerks, the clerk of the tribal court, tribal officials, and outside law firms and lawyers that represented the tribe. Acres Bonusing, 17 F.4th at 905. The Ninth Circuit concluded that a tribal government is "not the real party in interest" when the suit expressly seeks "money damages from the defendants in their individual capacities." Acres Bonusing, 17 F.4th at 905. "Tribal sovereign immunity [will] not apply [where] the judgment will not operate against the Tribe." Acres Bonusing, 17 F.4th at 909. According to the court, "[t]he critical question is ‘whether the remedy sought is truly against the sovereign.’ " Acres Bonusing, 17 F.4th at 908 (citing Lewis, 581 U.S. at 162, 137 S.Ct. 1285 ).

¶20 "Whether the remedy sought is one against the sovereign or the individual officer turns on ‘[t]he distinction between individual-and official-capacity suits.’ " Acres Bonusing, 17 F.4th at 908 (alteration in original) (quoting ...