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Cosentino v. Fuller

California Court of Appeals, Fourth District, Third Division

May 28, 2015

BENEDICT COSENTINO, Plaintiff and Appellant,
v.
STELLA FULLER et al., Defendants and Respondents.

[As modified June 22 and 25, 2015.]

Appeal from an order of the Superior Court of Riverside County No. MCC1300396, Richard J. Oberholzer, Judge. (Retired judge of the Kern Superior Court assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

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COUNSEL

Law Office of Andrew W. Twietmeyer and Andrew W. Twietmeyer for Plaintiff and Appellant.

Law Office of Frank Lawrence and Frank Lawrence for Defendants and Respondents.

OPINION

ARONSON, ACTING P. J.

Plaintiff and appellant Benedict Cosentino appeals from an order dismissing his claims against defendants and respondents Stella Fuller, John R. Magee, Jason P. Maldonado, William R. Ramos, and Robert B. Vargas (collectively, Defendants) based on the sovereign immunity afforded to Indian tribes and their officials. Cosentino was a table games dealer at an Indian tribal casino and Defendants were the five members of the tribe’s gaming commission responsible for licensing individuals involved in the tribe’s gaming activities and overseeing those activities.

Shortly after he began working at the casino, Cosentino observed ongoing criminal activity on the casino floor. Based on his observations, Cosentino became a confidential informant for the California Department of Justice and the information he provided led to several criminal convictions. Defendants later sought to learn what information Cosentino provided the Department of Justice, but he followed the Department’s instructions not to divulge the information. When Cosentino declined to disclose the information, Defendants revoked his gaming license and the casino terminated his employment because he could not work at the casino without a valid license.

Cosentino brought this action against Defendants, claiming they revoked his gaming license without cause and in retaliation for acting as an informant. Defendants specially appeared to make a motion to quash and dismiss, arguing sovereign immunity deprived the court of subject matter jurisdiction

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because Cosentino based all of his claims on Defendants’ official actions as members of the tribe’s gaming commission. The trial court agreed and granted the motion.

We reverse. For sovereign immunity to apply, the claims against tribal officials must be based on actions the officials took in their official capacity and within the scope of their official authority. An official’s actions that exceed the scope of his or her authority are not protected. Although the parties do not dispute that as members of the tribe’s gaming commission Defendants had the authority to revoke a gaming license if they received reliable information the licensee no longer satisfied the requirements for obtaining a license or had engaged in conduct that reflected poorly upon the tribe or its gaming activities, the record lacks evidence showing Defendants received any such information about Cosentino or an explanation of why they revoked his gaming license. Cosentino, however, presented evidence supporting his claim Defendants exceeded the scope of their authority by revoking his license without cause and in retaliation against him. Sovereign immunity prevents us from inquiring into the reliability of information Defendants may have relied upon in revoking Cosentino’s license or any other errors they may have made, but it does not prevent inquiry into whether Defendants exceeded their authority by abusing their official positions to intentionally harm Cosentino for their own personal benefit.

I

Facts and Procedural History

The Pechanga Band of Luiseño Mission Indians (Pechanga Band) is a sovereign Indian tribe recognized by the United States of America. It owns and operates the Pechanga Resort and Casino (Pechanga Casino) as an Indian gaming casino. The Pechanga Gaming Commission (Gaming Commission) is a five-member elected body of the Pechanga Band responsible for overseeing and monitoring all gaming activities on tribal land, including the licensing of certain employees directly involved in gaming activities. Defendants were the five Gaming Commission members during the relevant time period.

In April 2007, the Gaming Commission issued Cosentino a Class A gaming license to work as a table games dealer at the Pechanga Casino. Within his first few months, Cosentino witnessed several instances of criminal misconduct on the casino floor. He reported his observations to his licensing agent, who referred him to McKinney Investigations, LLC, a firm the Pechanga Band had hired to investigate criminal corruption at the Pechanga Casino. The private investigators asked Cosentino if he would work with the California Department of Justice as a confidential informant. Cosentino agreed to do

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so and the information he shared with the Department of Justice led to several criminal convictions.

In March 2011, the Gaming Commission e-mailed the Pechanga Casino director of table games to request a private meeting with Cosentino at 11:00 a.m. on April 1, 2011. The Gaming Commission did not contact Cosentino directly to request a meeting and the director of table games did not forward the request to Cosentino. His April 1 shift originally was scheduled to start at 12:00 noon, but the day before Cosentino’s supervisor switched his start time to 10:00 a.m. without informing Cosentino of his 11:00 a.m. meeting with the Gaming Commission. Cosentino timely reported to work for his April 1 shift. At approximately 11:30 a.m., Cosentino was told to report to the office, where a secretary told Cosentino he missed his scheduled meeting with the Gaming Commission at 11:00 a.m. A shift supervisor then told Cosentino the Pechanga Casino was suspending him pending an investigation and he was escorted from the building.

In mid-April, 2011, the Gaming Commission sent Cosentino a letter stating it had suspended his license with the intent to revoke it, and he had a right to a hearing on the suspension and possible revocation. Cosentino did not receive this letter because the Gaming Commission mailed it to Cosentino’s former address, although Cosentino had provided and received mail at his current address from the Pechanga Casino.

In early May, 2011, Cosentino phoned Ramos to ask if he had been fired from his job at the Pechanga Casino. Ramos told Cosentino he had not been fired, and the Gaming Commission merely wanted to meet with him. During this conversation, Ramos did not tell Cosentino he and the other members of the Gaming Commission had suspended Cosentino’s license. Ramos put Cosentino in contact with the Gaming Commission secretary to arrange a meeting. The secretary scheduled a meeting and informed Cosentino she had a letter for him from the Gaming Commission. When Cosentino arrived at the Gaming Commission’s office to pick up ...


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