APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. (Super.Ct.No. RIC535124)
The opinion of the court was delivered by: Hollenhorst Acting P. J.
CERTIFIED FOR PUBLICATION
Plaintiff and appellant California Parking Services, Inc. (CPS) appeals the denial of its petition to compel arbitration of a dispute with defendant and respondent Soboba Band of Luiseno Indians (Soboba Band) arising out of a contract to provide parking services at the Soboba Casino on the Soboba Band's reservation. We affirm the denial of CPS's petition to compel arbitration because we agree with the trial court that the Soboba Band did not waive its sovereign immunity through the arbitration clause.
II. FACTUAL AND PROCEDURAL BACKGROUND
In March 2007, CPS contracted with the Soboba Band, a federally recognized Indian tribe, to provide valet parking services to the Soboba Casino for three years. The Soboba Band terminated the contract in June 2009 after problems arose during its performance. On August 31, 2009, CPS sought to compel arbitration pursuant to paragraph 7 of their agreement, which read, in pertinent part: "Any disputes under this Agreement that cannot be resolved amicably through a negotiated agreement shall be submitted for resolution to an arbitrator acceptable to both parties. . . . The arbitration need not take place through the American Arbitration Association unless the parties cannot otherwise agree. It shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (September 2005 edition or later) excluding Rule 48(c). The decision . . . shall be final and binding on both parties." (Italics added.) The contract also contained a choice-of-law clause, which read: "This Agreement shall be governed by the laws of the State of California and, where applicable, Tribal and Federal law."
The Soboba Band demurred to the petition to compel arbitration on the basis of sovereign immunity. CPS opposed the demurrer, and the Soboba Band replied to the opposition.
In October 2009, the court heard CPS's petition to compel arbitration, which it denied. The court held that CPS's petition to compel arbitration was barred by sovereign immunity. The court stated the arbitration clause did not waive sovereign immunity because of the "express inclusion [in the contract] of an exclusion of Rule 48(c) [of the Commercial Arbitration Rules of the American Arbitration Association]." Rule 48(c) provides: "Parties to an arbitration under these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof." (American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures, rule R-48(c) (June 1, 2009) [as of July 12, 2011].) (Rule 48(c).) The court reasoned that excluding Rule 48(c) "can have only one possible meaning, and that's an express refusal . . . of the [Soboba Band] to accept the jurisdiction of State and/or Federal Court."
Ordinarily, we review a denial of a petition to compel arbitration for abuse of discretion. (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484.) However, where the trial court's denial of a petition to arbitrate presents a pure question of law, we review the order de novo. (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)
Generally, the issue of whether the trial court had subject matter jurisdiction over an action against an Indian tribe presents a pure question of law. (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1180.) Moreover, where the construction and interpretation of a written instrument can be made without the aid of extrinsic evidence and on the basis of the terms contained therein alone, we employ a de novo standard. (Ibid.) Accordingly, a de novo standard is appropriate here, because our role is simply to determine whether the ...