Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SC-UK-CV-G 05-95142
SIMONS, J.
Deborah L. Rivera (Rivera) appeals the dismissal of her first amended complaint against the Hopland Band of Pomo Indians Economic Development Corporation (EDC) for breach of her employment contract, after a demurrer was sustained without leave to amend. Rivera contends the trial court erroneously sustained the demurrer and denied her leave to amend. We affirm.
Background
Rivera is a member of the Hopland Band of Pomo Indians (Tribe), a federally recognized Indian tribe exercising jurisdiction over the Hopland Indian Reservation. In 2000, the Tribe enacted its “Tribal Claims Ordinance” (Ordinance). The Ordinance provides, in relevant part, “All claims against the Tribe or any of its business enterprises for money or damages shall be presented to the Tribal Council and acted upon as a prerequisite to suit thereon as further provided in this Ordinance.” The Ordinance requires a claim relating to any cause of action except death or injury be presented to the Tribe within 180 days after the accrual of the cause of action. The Ordinance also provides that if a claim is rejected in whole or in part, a notice shall be given stating in part, “[Y]ou have one hundred eighty (180) days from the date this notice was personally delivered or deposited in the mail to file a court action on this claim.”
Respondent EDC requested we take judicial notice of the Ordinance as well as “section 2.01.010 of the Hopland Band Administrative Code.” We deferred ruling on the motion pending our consideration of the merits. We now grant the motion. (Evid. Code, §§ 452, 459; Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192 [finding tribal constitution, bylaws, and tribal resolutions judicially noticeable].)
The EDC is a business owned by the Tribe that is charged with developing business and economic opportunities for the Tribe and its tribal members. On January 16, 2003, the EDC hired Rivera as its president. The parties entered into an employment agreement that included a “Choice of Law and Forum” clause stating, “In the event of a dispute regarding the validity, term or condition of this Agreement, or an alleged breach, the parties may exercise their right to invoke a court to [sic] tribunal of competent jurisdiction in any forum, whether Tribal, State, or Federal, which the parties may maintain in [sic] action based upon the jurisdiction’s conflict of laws principles.”
On December 6, 2004, the EDC terminated Rivera’s employment. On July 25, 2005, Rivera filed a lawsuit against the EDC in Mendocino County Superior Court alleging the EDC breached her employment agreement by terminating her without cause. The EDC filed a motion to quash the service of summons and complaint on the grounds that the Tribe had not waived its sovereign immunity and Rivera failed to exhaust her tribal administrative remedies. The court denied the motion to quash, finding that pursuant to the Choice of Law and Forum provision in the employment agreement, the EDC consented to suit in state court. In its order, the trial court stated that Rivera’s alleged failure to comply with the Ordinance did not provide a sufficient basis to quash, “although the question of whether it provides a defense is left open.” The EDC petitioned this court for a writ of mandate, and this court denied the petition.
This court’s order stated, “The petition for writ of mandate and request for a stay are denied. It does not appear respondent superior court erred in denying the motion to quash on the ground of sovereign immunity, and [the EDC] possesses other adequate remedies at law regarding the exhaustion of remedies issue raised by way of the motion to quash.”
On December 23, 2005, the EDC demurred to Rivera’s complaint, asserting that she failed to allege facts excusing her compliance with the Ordinance and failed to exhaust her tribal administrative remedies. The court sustained the demurrer with leave to amend, ruling that under the circumstances of the case, tribal law should govern, and Rivera was required to comply with the claims filing procedure.
Rivera filed the operative first amended complaint on March 29, 2006. In it, she admitted that, at the time the Ordinance was enacted, she was the secretary of the Tribal Council. Rivera further admitted she was required to comply with a claims statute, but alleged she was excused from complying because the Ordinance did not include a provision for leave to file a late claim and the Ordinance was invalid because “only tribal members were allowed to see copies of tribal ordinances, and they were not allowed to make copies for their own use.” She attached to the complaint a copy of the Ordinance, which she had signed in her capacity as tribal secretary. Rivera further alleged she first learned the Ordinance could apply to her claim in March 2005, and her attorney made a reasonable mistake of law by advising her “it would not apply to this case because it was only meant to apply to tribal court actions.” In addition, Rivera alleged that this error by her counsel and the failure of certain tribal officials to inform her about the Ordinance estopped the Tribe “to assert the defense” of the Ordinance. Finally, Rivera alleged compliance with the Ordinance would have been futile. The EDC again demurred. The trial court sustained the demurrer without leave to amend, concluding that under federal, tribal, or state law, Rivera was required to exhaust her administrative remedies prior to filing the action at issue. The trial court stated Rivera did not establish that the Ordinance violated due process or that she was otherwise excused from complying with it. Though we apply somewhat different reasoning than the trial court, we affirm.
Discussion
I. The EDC Waived Its Sovereign Immunity
“ ‘ “Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. As an aspect of this sovereign immunity, suits against tribes are barred in the absence of an unequivocally expressed waiver by the tribe or abrogation by Congress.” [Citation.] . . . [¶] “It is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” [Citation.]’ ” (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1182, quoting E.F.W. v. St. Stephen’s Indian High School (10th Cir. 2001) 264 F.3d 1297, 1304.) “A tribal entity is treated as the tribe for immunity purposes.” (Redding Rancheria v. Superior Court (2001) 88 Cal.App.4th 384, 388.)
In C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla. (2001) 532 U.S. 411, 418, the United States Supreme Court found a tribe had waived its immunity with the requisite clarity when it entered into a contract containing a provision for arbitration and related provisions for enforcement of an arbitration award. (Id. at p. 418.) The arbitration provision required resolution of all contract-related disputes by binding arbitration, and provided that the arbitrator’s award would be final and judgment could be entered upon it in accordance with applicable law in any court having jurisdiction. (Id. at p. 415.) The contract’s choice of law clause selected Oklahoma law to govern the contract. (Id. at p. 419.) The court stated, “In sum, the [defendant tribe] agreed, by express contract, to adhere to certain dispute resolution procedures.” (Id. at p. 420.) The court concluded that the defendant tribe clearly consented to arbitration and to the enforcement of arbitral awards in state court, and therefore waived its sovereign immunity. (Id. at p. 423.)
The EDC argues on appeal that it has not waived its sovereign immunity. We disagree. The EDC’s articles of incorporation authorized the EDC to waive its sovereign immunity. Article V provides, in relevant part, “The corporation shall have the following powers: [¶] . . . [¶] H. To sue and be sued; provided this grant of authority to waive the immunities possessed by the corporation because of its relationship to the Tribe is not, and shall not be construed as a waiver of the sovereign immunity of the Tribe, nor shall this authority create any liability on the part of the Tribe for the debts and obligations of the corporation.”
The employment contract entered into by the EDC and Rivera provided that in the event of an alleged breach of the contract, “the parties may exercise their right to invoke a court to [sic] tribunal of competent jurisdiction in any forum, whether Tribal, State, or Federal, which the parties may maintain in [sic] action based upon the jurisdiction’s conflict of laws principles.” Giving effect to each clause of the contract, as we must, we read this clause as the parties consenting to suit under this contract in any of the three forums listed. (See Civ. Code, § 1641.) The clause would serve no purpose if the parties intended that the tribal forum remain the exclusive forum for any resulting lawsuits. The EDC, therefore, explicitly contemplated and agreed that in the event of an alleged breach, the parties could bring suit in state court. We find this to be a clear and explicit waiver of the EDC’s sovereign immunity.
II. Rivera Must Exhaust Administrative Remedies
Generally, under California law, “[a] plaintiff must exhaust the administrative remedies available before resorting to the courts. . . . [Citation.] The exhaustion requirement applies to statutory administrative remedies and also to internal grievance procedures of public and private organizations. [Citations.]” (Shuer v. County of San Diego (2004) 117 Cal.App.4th 476, 482.) In Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1091-1092, the California Supreme Court confirmed the importance of judicial deference to internal grievance procedures reflected in the exhaustion requirement. In its discussion of cases that have required the exhaustion of internal remedies, the court cited with approval Moreno v. Cairns (1942) 20 Cal.2d 531. In Moreno, a public employee sued, claiming that he had been wrongfully forced to resign his position with the City of Los Angeles. In the trial court, the defendant board successfully demurred on the basis that the plaintiff had failed to exhaust the internal grievance procedure set forth by the city charter. (Id. at pp. 534-536) On appeal, this ruling was affirmed. The city charter in Moreno, much like the Ordinance here, required: “ ‘Whenever it is claimed by any person that he has been unlawfully suspended, laid off, or discharged, and that such lay off, suspension or discharge is ineffective for any reason, any claim for compensation must be made and demand for reinstatement must be presented in writing within [90] days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended, or discharged. Such demand for reinstatement must be filed with the board of civil service commissioners and such claim for compensation for such allegedly wrongful, illegal or erroneous discharge must be filed with the city clerk. Failure to file such demand for reinstatement within the time herein specified shall be a bar to any action to compel such reinstatement and proof of filing such a demand for reinstatement must be completed and proved a condition precedent to the maintenance of any action for reinstatement. Proof of filing the claim for compensation within the time and in the manner herein specified shall be a condition precedent to any recovery of wages or salary claimed to be due on account of said lay off, suspension or discharge.’ ” (Id., at p. 534.)
Here, the Ordinance requires that a claim be presented to the Tribal Council as a prerequisite to filing a claim against the Tribe in court. Once presented, the Tribal Council has 60 days to grant or deny the claim, and upon rejection of a claim in whole or in part, a claimant may file a court action on the claim. Under California’s exhaustion principles set forth in Moreno and approved in Schifando, Rivera was required to exhaust this procedure before proceeding in state court.
Because California law requires enforcement of the Ordinance, we need not address Rivera’s conflicts of law argument because it rests on the incorrect assumption that California law is to the contrary.
The tribal exhaustion doctrine provides further support for this conclusion. “[W]hen a colorable claim of tribal court jurisdiction has been asserted, a federal court may (and ordinarily should) give the tribal court precedence and afford it a full and fair opportunity to determine the extent of its own jurisdiction over a particular claim or set of claims. [Citation.]” (Ninigret Development v. Narragansett Indian (1st Cir. 2000) 207 F.3d 21, 31.) “Exhaustion is required as a matter of comity, not as a jurisdictional prerequisite.” (Iowa Mutual Ins. Co. v. LaPlante (1987) 480 U.S. 9, 16, fn. 8.) The doctrine applies even when a tribal agency other than a tribal court arguably has jurisdiction (Burlington Northern R. Co. v. Crow Tribal Council (9th Cir. 1991) 940 F.2d 1239, 1246), and applies in state court as well as federal court (U.S. v. Plainbull (9th Cir. 1992) 957 F.2d 724, 728; see Redding Rancheria v. Superior Court, supra, 88 Cal.App.4th at pp. 390-391). The doctrine applies even if no claim is currently pending in a tribal court or agency. (Ninigret, at p. 31; Burlington, at p. 1246.) Finally, “the doctrine applies even though the contested claims are to be defined substantively by state or federal law.” (Ninigret, at p. 31.)
Rivera seems not to contest the broad reach of the exhaustion doctrine, but argues the trial court erred in equating the Ordinance with an administrative remedy. Moreno, however, supports the trial court’s decision. The federal government’s longstanding goal of encouraging tribal self-government and self-determination lies behind the tribal exhaustion doctrine. (Iowa Mutual Ins. Co. v. LaPlante, supra, 480 U.S. at pp. 15-16.) Requiring our state courts to defer action until the designated tribal agency has had the opportunity to interpret a tribal ordinance promotes that goal.
Rivera also contends a California court should not enforce the requirements of the Ordinance because it violates due process. We disagree. “The general rule of exhaustion ‘forbids a judicial action when administrative remedies have not been exhausted, even as to constitutional challenges . . . .’ [Citation.] However, ‘. . . if the remedy provided does not itself square with the requirements of due process the exhaustion doctrine has no application.’ [Citation.] Due process, though, ‘does not require any particular form of notice or method of procedure. If the [administrative remedy] provides for reasonable notice and a reasonable opportunity to be heard, that is all that is required. [Citations.]’ [Citation.]” (Bockover v. Perko (1994) 28 Cal.App.4th 479, 486.) Rivera complains the Ordinance violates due process because it provides her no opportunity to file a late claim or otherwise assert an excuse for her failure to file a claim within the given time period.
In State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1245, while discussing the California Tort Claims Act, the Supreme Court stated, “requiring plaintiffs to allege facts sufficient to demonstrate or excuse compliance [with the claims procedure] does not deprive them of their due process rights or unfairly bar just claims. As an initial matter, we note that the Legislature has provided numerous ways to obtain relief from the claim presentation requirement. For example, [Government Code] sections 911.4, 911.6, 911.8 and 946.6 contain a detailed scheme permitting litigants to petition the public entity and the court for leave to present a late claim. [Government Code sections] 910.8 and 911 also require public entities to alert a claimant to any deficiencies in his claim or waive any ‘defect or omission in the claim as presented’ [citation]. Moreover, a plaintiff need not allege strict compliance with the statutory claim presentation requirement. Courts have long recognized that ‘[a] claim that fails to substantially comply with [Government Code] sections 910 and 910.2, may still be considered a “claim as presented” if it puts the public entity on notice both that the claimant is attempting to file a valid claim and that litigation will result if the matter is not resolved.’ [Citation.] Finally, a plaintiff may arguably be able to satisfy the claim presentation requirement by alleging an appropriate excuse, such as equitable estoppel. [Citation.]”
Even assuming that Bodde mandates, as a matter of constitutional due process, that a claims statute contain each item excusing compliance with the statute listed in Bodde, we would require exhaustion. It is certainly true that the Ordinance does not expressly provide for a hearing, for late filing, for waiver of defects or omissions by the Tribe, for substantial compliance with the statute, or for equitable estoppel. But neither does the Ordinance specifically preclude any of these. For example, section 1.070 of the Ordinance, “Notice of Insufficiency of Claims,” provides, “If . . . a claim as presented fails to comply substantially with the requirements of this Ordinance . . . the Tribal Council or such designated person may, at any time within twenty (20) days after the claim is presented, give written notice of its insufficiency, stating with particularity the defects or omissions therein.” This section could reasonably be interpreted to provide for both substantial compliance with the filing requirements and for a waiver of defects or omissions by the Tribe if it fails to provide a written notice of insufficiency. Further, in the preamble to the Ordinance, the purpose of the Ordinance is stated as follows: “[T]o establish an administrative procedure by which any person who believes the Tribe owes him or her money as a result of a breach of contract or damage to person or property will be required to submit an administrative claim to the Tribal Council. Such a procedure will allow the Tribal Council to consider the merits of any claim and either approve or reject the claim as a precondition to the claimant filing a lawsuit against the Tribe.” Whether or not the Tribal Council’s consideration encompasses a hearing and, if so, the precise nature of the claimant’s participation in that hearing, is not adverted to. Whether or not the Tribal Council will interpret its Ordinance to provide the relief Rivera seeks is unknown. But Rivera must try. The interpretation of the Ordinance should be left, in the first instance, to the Tribe. (See Bockover v. Perko, supra, 28 Cal.App.4th at pp. 489-490.)
III. Further Leave To Amend Is Not Required
We next address Rivera’s claim that she should have been given leave to amend her first amended complaint. “If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]” (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) “A request to amend at the trial court level is not an essential prerequisite to appellate relief from the demurrer dismissal. The requisite showing can be made for the first time on appeal.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 8:136.3a, p. 8-84.1, citing Code Civ. Pro., § 472c, subd. (a), and Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971.)
Rivera asks this court to grant her “leave to amend [her complaint] to state a claim under the theory of Davis v. Passman (1979) 442 U.S. 228, 248, wherein the [United States Supreme] Court held that a plaintiff had an implied right of action for money damages under the Fifth Amendment where she was fired from her job as an assistant to a congressman based on illegal gender discrimination.” Rivera contends she has this same constitutional right in state court, premised on section 1302 of title 25 of the United States Code under the Indian Civil Rights Act of 1968.
Section 1302 of title 25 of the United States Code provides, in relevant part, “No Indian tribe in exercising powers of self-government shall—[¶] (1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances; [¶] . . . [¶] (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.”
In Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 66-69, the United States Supreme Court concluded that despite the fact the Indian Civil Rights Act of 1968 was enacted to protect Indians from arbitrary actions by their tribe, the law does not create a private cause of action. (Ackerman v. Edwards (2004) 121 Cal.App.4th 946, 955.) Thus, the trial court did not err in denying Rivera the right to amend.
As a part of Rivera’s argument that the Ordinance violates constitutional principles, she requested we take judicial notice of the docket sheet from the prior (unrelated) litigation of Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1. We deferred ruling on this motion pending our consideration of the merits of the case. A reviewing court has discretion to take judicial notice of court records, even if not judicially noticed in the trial court. (Evid. Code, §§ 452, subd. (d), 459.) We deny the request for judicial notice because the docket sheet is not relevant to our decision.
Disposition
The judgment is affirmed, and costs are awarded to respondent.
We concur. JONES, P.J., NEEDHAM, J.