Reyes v. Kizh Nation Res. Mgmt.

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EMILIO REYES, Plaintiff and Appellant, v. KIZH NATION RESOURCES MANAGEMENT, Defendant and Respondent.

B329178

California Court of Appeals, Second District, Seventh Division

August 21, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC724250 Mel Red Recana and Robert B. Broadbelt, Judges. Affirmed.

Emilio Reyes, in pro. per., for Plaintiff and Appellant.

Cruser, Mitchell, Novitz, Sanchez, Gaston &Zimet, Kevin R. Lussier and Katy S. Bekken for Defendant and Respondent.

FEUER J.

Emilio Reyes appeals from a judgment following the trial court's grant of summary judgment for defendant Kizh Nation Resources Management (KNRM) on the ground that KNRM could not be held liable as a matter of law for the actions taken by codefendant Andrew Salas on an alter ego theory based on Salas's position as president and chief executive officer of KNRM, and as part of a joint enterprise with codefendant Los Indios De San Gabriel, Inc. doing business as the Gabrieleno Band of Mission Indians-Kizh Nation (Los Indios). Reyes brought causes of action against Salas, Alexandra R McIntosh, APC (Reyes's former attorney), Lorraine Ann Escobar (a genealogist who worked for Los Indios and Salas) KNRM, Los Indios, and others for negligence, defamation, invasion of privacy, intentional infliction of emotional distress, unfair business practices, and other torts based on allegations Salas participated in a scheme by McIntosh and Escobar to obtain confidential information from Reyes about his Native American ancestry and to use it to publish defamatory reports falsely stating Reyes's ancestors were of Spanish or Mexican, not Native American, ancestry. Reyes alleged that some of the reports were published on Los Indios's website.

Reyes also argues that the trial court abused its discretion in denying Reyes leave to amend to allege additional causes of action against KNRM. Because Reyes failed to produce any evidence to support KNRM's liability for the conduct of Salas or Los Indios on an alter ego or joint enterprise theory, and the court did not abuse its discretion in denying leave to amend, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Reyes's Allegations in the Second Amended Complaint

Reyes commenced this action on October 4, 2018. On august 13, 2021 Reyes filed a second amended complaint against Escobar, individually and doing business as No Stone Unturned Genealogy, McIntosh, Salas, Los Indios, KNRM, Board for Certification of Genealogists (the Board), and others. Reyes alleged he is a descendant of the Gabrielino (Tongva) Nation and a genealogist and researcher of Native American records. According to Reyes, his ancestor Maria Guadelupe Arballo Grijalva and her descendants Mary Grijalva Bega, Guillermo Grijalva, Aurelia Grijalva Orosco, Domingo Bega, Mary Bega Aguilar, Nellie Bega Medrano, and Amelia Grijalva Garcia "appear on the original California Indian Census Roll authorized by Congress in 1928, and approved by the Secretary of the Interior in 1933."

Escobar is a genealogist certified by the Board, who worked for Salas "as an independent genealogical consultant" since 2009. On November 11, 2013 Reyes sent Escobar an email requesting her genealogical services. At Escobar's request, Reyes provided her with his full genealogy. Starting at the end of 2013, Reyes communicated with Salas, the chief executive officer of KNRM and Los Indios, about becoming a member of Los Indios. Salas sent Reyes an application and requested that Reyes send supporting documents along with his application. According to Reyes, the application contained a confidentiality agreement stating Salas and Los Indios "would maintain all obtained records and information confidential." In early 2014 Reyes submitted his application and $30 filing fee to Los Indios, but later that year Reyes requested that Los Indios return all his paperwork. Los Indios responded that it would return Reyes's application and his $30 fee, but it never did. Los Indios later informed Reyes that Escobar was its genealogist and Los Indios was "'not able to match any of [Reyes's] family members up to our current certified genealogy database.'" Reyes alleged that Escobar and Salas collected Reyes's genealogy documents under false pretenses with the intent to later accuse him of pretending to have Native American ancestry.

In January 2015 McIntosh agreed to represent Reyes as a plaintiff in a lawsuit against the Bureau of Indian Affairs (BIA) seeking federal recognition of members of the San Pasqual Band of Mission Indians. At McIntosh's request, Reyes provided her with a statement from the BIA verifying Reyes's California Indian ancestry.^[1] On August 31, 2017 McIntosh sent Reyes's BIA document to Escobar. On October 13 Escobar published a report about Reyes's ancestors on the Los Indios website that included the BIA document and genealogical information Reyes sent to Escobar and Los Indios. The report also was sent to the Department of Interior, the BIA, and the Native American Heritage Commission (NAHC). The report accused Reyes of having a fraudulent BIA document that showed he had Native American ancestry although his ancestors were of Spanish descent (from Mexico). Reyes alleged the report violated his privacy, contained unlawfully obtained confidential information, and was libelous on its face because the BIA had acknowledged since 2013 that Reyes was a California Indian. After Reyes commenced this action, Los Indios removed the full report but left the first page on its website with the statement: "[F]or the complete factual information of these infiltrators, please feel free to contact us."

Reyes further alleged that on June 26, 2018 Escobar, at the request of Salas, sent false and misleading statements to NAHC and five Native American tribes accusing Reyes of being an "imposter" and practicing "cultural misappropriation," and Escober urged NAHC and the tribes to "not lend any credibility to these imposters." On July 9, 2020 Escobar, at Salas's request, published another report about Reyes's genealogy accusing Reyes of "cultural identity fraud" and defrauding the government because Reyes's ancestors were from Mexico and Reyes had "absolutely no California Indian ancestry at all." Reyes alleged Escobar's publications about Reyes "were made per the request of Salas of Los Indios and KNRM." (Capitalization omitted.)

Reyes alleged 12 causes of action against Salas, Los Indios, KNRM, and others for negligence, defamation, invasion of privacy, unfair business practices in violation of the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) and Business and Professions Code section 17200 et seq., intentional and negligent infliction of emotional distress, violations of Reyes's rights under article 1, section 2(a) of the California Constitution, discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), civil conspiracy, concealment, unjust enrichment, and breach of fiduciary duty. Reyes sued KNRM as the alter ego of Salas and Los Indios, and alleged there was a unity of ownership and interest among them. Reyes sought damages of $5 million against Salas, $5 million against Los Indios, and $1 million against KNRM.

B. KNRM's Motion for Summary Judgment

On June 10, 2022 KNRM moved for summary judgment or, in the alternative, summary adjudication. KNRM argued it was not the alter ego of Salas and it did not ratify or authorize any of Salas's alleged actions, relying on a declaration submitted by Salas.

In his supporting declaration, Salas stated he is the president and chief executive officer of KNRM. According to Salas, KNRM is a for-profit California corporation that "provides professional services that implement mitigation measures adopted by government entities for land use development projects they find will negatively impact Native Americans, cultural, and natural resources at a project location." KNRM is neither a California government entity nor a Native American tribe or tribal government. Salas denied the tribal council for the Gabrieleno Band of Mission Indians-Kizh Nation ever did business as KNRM.^[2] Salas averred that KNRM never commingled funds with Salas or any other entity or individual. Further, "KNRM does not divert corporate funds or assets away from KNRM for purposes other than KNRM corporate purposes. KNRM's corporate assets are those of the corporation, KNRM, and no other entity or individual, including me, and are treated as such. KNRM is not a shell for the business of an individual or other corporation."

Salas also declared that KNRM never had any contact with or was involved with Reyes and did not obtain any of Reyes's genealogical documents or personal records. Further, KNRM never requested that Escobar or anyone else publish or distribute any statement about Reyes to any government entity or tribe. Nor did KNRM ever disclose, publish, or disseminate any statement or report related to Reyes or his relatives. Moreover, KNRM never authorized anyone, including Salas, to engage in any wrongful conduct as alleged by Reyes in his second amended complaint.

Salas attached to his declaration KNRM's April 17, 2017 articles of incorporation and March 15, 2022 corporation statement of information filed with the California Secretary of State. The articles of incorporation show that the Gabrieleno Band of Mission Indians, LLC converted to KNRM, a corporation, by vote of its members. The document listed Salas as "the sole manager of the LLC" and the "initial" agent for service of process. The corporation statement of information listed Salas as KNRM's chief executive officer, chief financial officer director, and agent for service of process. It also listed Laura Salas as secretary and...