1

Filed 9/26/18 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ROBERT FINDLETON,

Plaintiff and Respondent,

v.

COYOTE VALLEY BAND OF POMO 

INDIANS,

Defendant and Appellant.

 A150444

 (Mendocino County Super. Ct.

 No. SCUKCVG-1259929)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the published opinion filed on September 25, 2018, be modified 

as follows:

The case caption is corrected to read:

ROBERT FINDLETON,

Plaintiff and Respondent,

v.

COYOTE VALLEY BAND OF POMO INDIANS,

Defendant and Appellant.

There is no change in judgment.

Dated: _______________ _________________________

Kline, P.J.
2

Trial Court: Mendocino County Superior Court

Trial Judge: Hon. Richard J. Henderson

Counsel: 

Ceiba Legal and Little Fawn Boland; Brady & Vinding and Michael V. Brady for 

Defendant and Appellant.

Timothy W. Pemberton for Plaintiff and Respondent.
1

Filed 9/25/18 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ROBERT FINDLETON,

Plaintiff and Appellant,

v.

COYOTE VALLEY BAND OF POMO 

INDIANS,

Defendant and Respondent.

 A150444

 (Mendocino County

 Super. Ct. No. SCUKCVG-1259929)

This is our third appeal concerning contractor Robert Findleton’s attempts to 

enforce arbitration clauses in agreements he entered into with the Coyote Valley Band of 

Pomo Indians (the Tribe), which failed to pay him for work he performed for the Tribe. 

In the first appeal, we held the Tribe had waived its sovereign immunity for purposes of 

arbitrating the contract disputes and that the waiver extended to judicial enforcement of 

the right to arbitrate and of any arbitration award. (Findleton v. Coyote Band of Pomo 

Indians (2016) 1 Cal.App.5th 1194, 1217 (Findleton I).) We reversed the superior

court’s contrary ruling and remanded the case for further proceedings. In the second 

appeal, we reversed the superior court’s grant of the Tribe’s motion for prevailing party 

attorney fees and costs of $66,733.50 under the Tribal Code and Civil Code section 1717 

because, in view of our ruling in Findleton I, the Tribe was not a prevailing party. 

On remand, Findleton filed a motion to compel mediation and arbitration and a 

motion for an award of the attorney fees Findleton incurred on appeal. In response, the 

Tribe did not oppose the fee motion on the merits, but instead requested that the superior

court defer ruling on the motions until the Tribe filed a demurrer challenging the court’s 

jurisdiction. The superior court rejected the Tribe’s request for a stay as to the attorney 
2

fee motion, granted the fee motion and awarded Findleton costs of $4,591.79 and 

attorney fees of $28,148.75. The Tribe timely appealed the award of fees and costs. We 

affirm.

BACKGROUND

The facts concerning the underlying contract dispute between Findleton and the 

Tribe are summarized in our opinion in Findleton I, and we will not repeat them here. 

We set forth here only the procedural history of this litigation that is pertinent to the 

issues raised in this appeal. 

After attempting to persuade the Tribe to pay him for work and services provided 

under two agreements, known as the “Construction Agreement” and the “Rental 

Contract,” as amended by a document known as the “Third Amendment,” Findleton 

requested that the Tribe mediate and arbitrate pursuant to clauses in the agreements 

providing for these forms of dispute resolution. The Tribe failed to respond to those 

requests, and Findleton thereafter filed a petition on March 23, 2012, in the Mendocino 

County Superior Court to compel mediation and arbitration. 

The Tribe moved to quash service of summons and to dismiss for lack of 

jurisdiction, claiming it had not waived its sovereign immunity or consented to suit in 

state court and that Findleton had failed to exhaust tribal administrative remedies. After 

extensive discovery and briefing, the superior court ruled on the motion in May 2014, 

holding the Tribe had not waived its sovereign immunity. The Tribe thereafter filed a 

motion for attorney fees it had incurred in defending against Findleton’s petition, which 

motion the superior court granted in November 2014. Findleton appealed both rulings, 

and in August 2016 we issued our opinions, reversing the superior court’s jurisdictional 

decision and remanding the case to the superior court for further proceedings, on the 

ground the Tribe had waived its sovereign immunity. We also reversed the award of fees 

to the Tribe, because in view of our holding on sovereign immunity, it was not a 

prevailing party. 

On remand, Findleton again filed a petition to compel mediation and arbitration 

and filed a motion for an award of contractual attorney fees he had incurred in the prior 
3

appellate proceedings. The Tribe opposed both motions. It did not file substantive 

opposition to the fee motion, however. Instead, it merely requested that the superior

court defer ruling on both motions until it resolved a demurrer the Tribe planned to file, 

in which the Tribe said it would argue the state court lacked jurisdiction because it had 

delegated its judicial powers to a tribal court and ruling on the fee motion would interfere 

with the Tribe’s sovereignty. 

The superior court vacated its prior order granting fees to the Tribe and granted 

Findleton’s motion for the fees he incurred to enforce his right to arbitrate. The Tribe 

timely appealed. 

DISCUSSION

On appeal, the Tribe raises three arguments, which we address in turn. 

I.

Superior Court Jurisdiction to Award Attorney Fees Findleton Incurred

to Enforce His Right to Arbitrate

First, the Tribe contends only one of the two agreements between Findleton and 

the Tribe (the Rental Agreement) authorizes attorney fees, but that the Tribe did not 

waive its sovereign immunity as to claims under that agreement, and there is not yet a 

prevailing party within the meaning of that agreement’s fee clause. As Findleton points 

out, the Tribe “did not advance any contention” in the superior court “about the scope or 

effect of the attorney fees clause in the Rental Agreement or the amount of the fees”; nor 

did it claim Findleton was not a prevailing party. 

The Tribe waived these issues by failing to raise them in the superior court. It is 

well established that appellate courts will ordinarily not consider errors that “could have 

been, but were not raised below.” (In re Marriage of Falcone (2008) 164 Cal.App.4th 

814, 826; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter 

Group 2017) ¶ 8:229, p. 8-174.) The rule applies to defenses as well as theories of 

liability, and to a “new theory for or against recovery” of attorney fees. (Eisenberg,

¶¶ 8:231, 8:233, p. 8-175.) “The policy behind the rule is fairness.” (Marriage of 

Falcone, at p. 826.) “Appellate courts are loath to reverse a judgment on grounds that the 
4

opposing party did not have an opportunity to argue and the trial court did not have an 

opportunity to consider. [Citation.] In our adversarial system, each party has the 

obligation to raise any issue or infirmity that might subject the ensuing judgment to 

attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable 

expense but also wreaks havoc on a judicial system too burdened to retry cases on 

theories that could have been raised earlier.” (JRS Products, Inc. v. Matsushita Elec. 

Corp. of America (2004) 115 Cal.App.4th 168, 178.) These rules are no less applicable 

to Native American tribes than to other parties. (See, e.g., C & L Enterprises v. Citizen 

Band Potawatomi Tribe of Okla. (2001) 532 U.S. 411, 423, fn. 6 [declining to consider 

tribe’s claim that members of tribe who executed contract containing arbitration clause 

and waiving sovereign immunity lacked authority where issues were not aired in lower 

courts].)

The Tribe urges this court to “exercise its discretion and consider” the arguments 

it has raised for the first time on appeal, contending they are “purely a matter of applying 

the law to undisputed facts.” We are not persuaded. 

The issues raised by the Tribe’s belated arguments are not purely legal. For 

example, Findleton points out that the Rental Contract, the Construction Contract and the 

Third Amendment all relate to the Tribe’s casino and infrastructure development project 

and that the Construction Contract addresses charges for equipment rental (which is the 

subject of the Rental Contract), and argues that pursuant to Civil Code section 1654 the 

three agreements should be “considered as one agreement,” and their provisions should 

be treated as “merge[d].” Responding to this argument, the Tribe concedes “it is a 

question of fact whether multiple contracts are intended to be elements of a single 

transaction under section 1642” (see Pilcher v. Wheeler (1992) 2 Cal.App.4th 352, 355),

but argues the relevant facts here “are clear.” But this misses the point. By failing to 

raise this factual issue below and failing to contest Findleton’s substantive right to claim 

fees under the Rental Agreement, the Tribe deprived Findleton of the opportunity of 

introducing whatever extrinsic evidence Findleton might have had at his disposal on the 

integration issue, and deprived the superior court of the opportunity to address the factual 
5

issue in the first instance. In addition, the Tribe relies on assertions of fact that Findleton 

disputes.1 Findleton also contends that “the exact same amount of fees and costs would 

have been incurred even if the attorney fee provision covered only the Rental Agreement 

because all the research, briefing and appearances in the two earlier appeals would have 

been the same.” Given the fact-intensive inquiry entailed in whether and how the 

agreements should be interpreted and whether there should have been any allocation of 

the fees on appeal, consideration of these issues for the first time on appeal would be 

unfair to Findleton and to the superior court. Thus, we reject the Tribe’s request that we 

exercise our discretion to address these issues because they are not pure questions of law.

Next, the Tribe argues the sovereign immunity issue “call[s] into question the 

Superior Court’s jurisdiction over the matter” and thus falls within “a recognized 

exception to the rule that new arguments will not be considered on appeal.” Generally, it 

is true that failure to challenge jurisdiction does not waive the issue. However, that does 

not mean a party may relitigate jurisdictional issues without regard to prior decisions in 

the case addressing those very same issues. As Findleton points out, “[l]itigants are not 

free to continually reinvent their position on legal issues that have been resolved against 

them by an appellate court.” (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 

312, disapproved on other grounds in Newport Harbor Ventures, LLC v. Morris Cerullo 

World Evangelism (2018) 4 Cal.5th 637.) “The doctrine of the law of the case provides 

 

1 For example, it argues the Rental Contract and the Construction Contract are 

between the Tribe and “two entirely different entities,” whereas Findleton argues both 

“entities” on whose behalf he signed the contracts were “merely dba’s of Findleton.” 

(See Findleton I, supra, 1 Cal.App.5th at p. 1198, 1199–2000 [describing Terre 

Construction and On-Site Equipment Rental as dbas of Findleton].) The Tribe 

characterizes the agreements as “stand alone” contracts “for different services and with 

different terms.” However, Findleton points out that both agreements are signed by him 

individually, the Construction Contract describes the transaction embodied in the Rental 

Contract, and the Rental Contract’s purpose was to reduce the Tribe’s cost for the use of 

equipment used to complete the construction that was the subject of the Construction 

Contract by having the Tribe lease the equipment from Findleton (dba On-Site) and 

thereby avoiding state and local taxes and charging its own construction tax on 

equipment rental instead. (See id. at p. 1200.) 
6

that ‘ “ ‘the decision of the case[] conclusively establishes that rule and makes it 

determinative of the rights of the same parties in any subsequent trial or appeal in the 

same case.’ ” ’ ” (Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 

304.) Law of the case precludes relitigation of an appellate decision that a court has 

jurisdiction. (Gore v. Bingaman (1942) 20 Cal.2d 118, 120–121; People v. Shuey (1975) 

13 Cal.3d 835, 842, abrogated on other grounds as stated in People v. Bennett (1998) 

17 Cal.4th 373, 389–390, fn. 5.)

The Tribe rests its current sovereign immunity position in part on the contention 

that it did not waive its sovereign immunity as to the Rental Contract, which contains the 

attorney fee clause under which fees were awarded, and that the superior court therefore 

lacked jurisdiction to award fees under that contract. The problem with this argument is 

that we already decided in Findleton I that the Tribe waived its sovereign immunity not 

only as to the Construction Agreement but also as to the Rental Contract, and that 

decision is now law of the case. In Findleton I, we addressed Findleton’s appeal from the 

superior court’s denial of his motion to compel arbitration under the arbitration clauses of 

the Construction Agreement and the Rental Contract. (Findleton I, supra, 1 Cal.App.5th 

at pp. 1202–1203.) We held that the General Council of the Tribe, in two resolutions, 

validly delegated to the Tribal Council the authority to waive the Tribe’s sovereign 

immunity, and that the Tribal Council, by adopting a further resolution, waived that 

immunity. (Id. at pp. 1214, 1216–1217.) We recognized the waiver was limited, but held

it extended “to arbitration of disputes regarding those agreements” and “to judicial 

enforcement of the right to arbitrate and of any arbitration award, as indicated by the 

arbitration provision of the agreements.” (Id. at p. 1217, italics added.) The Tribe is 

barred by law of the case from arguing that it did not waive its sovereign immunity with 

respect to the Rental Contract.

The Tribe also argues that the superior court was not authorized “to take any 

action at all, because the waiver language expressly repudiated state court jurisdiction.”

This argument, too, is barred by law of the case because in the prior appeal we reversed 

the superior court’s grant of the motion to quash for lack of jurisdiction and remanded the 
7

case to the superior court for further proceedings. We necessarily decided that the Tribe 

waived its sovereign immunity and thereby conferred jurisdiction on the superior court

(as well as the state appellate courts)—not to resolve the underlying dispute, but to 

enforce the arbitration clauses in the agreements. (Findleton I, supra, 1 Cal.App.5th at 

p. 1218.) The Tribe is barred from rearguing the issue.

The Tribe makes one further argument concerning sovereign immunity and 

jurisdiction. Arguing that our prior decision addressed only “the issue of whether a 

waiver of immunity exists” and not “the scope of the waiver (italics added),”

2

it contends 

its waiver of sovereign immunity does not extend to, or afford the superior court 

jurisdiction, to award attorney fees to Findleton. The Tribe is partially correct.

As we have discussed, we addressed the scope of the waiver in Findleton I to the 

extent we held it encompassed state court enforcement of the right to arbitrate disputes 

under the agreements and state court enforcement of any arbitration award. However, the 

parties did not raise in Findleton I, and we had no occasion to decide, whether judicial 

enforcement of arbitration included a potential motion by Findleton for attorney fees. 

Unlike the Tribe’s other jurisdiction-related arguments, this one is not barred by the law 

of the case, and we therefore must resolve it here. 

Fortunately, its resolution is not difficult. The issue is narrow; Findleton sought 

and the superior court awarded only the fees Findleton incurred in prosecuting the first 

appeal, in which he sought to enforce his right to arbitrate. In Findleton I, we held the 

Tribe’s waiver of sovereign immunity encompassed judicial enforcement of Findleton’s 

contractual right to arbitrate. Judicial enforcement of the right to arbitrate includes 

awarding fees specifically incurred to enforce that right.3 By adopting the Tribal 

 

2

In the second appeal, we reversed the superior court’s award of attorney fees to 

the Tribe, holding it was not a prevailing party. 

3 There must, of course, be a basis for such fees, such as a statute or contract. 

Here, there was a contract provision allowing for fees, and the Tribe did not contest 

Findleton’s showing in the superior court that the agreements related to the same

transaction and the fee provision thus permitted recovery of these fees. As we have 
8

Resolution and thereby consenting to judicial enforcement of the right to arbitrate in any 

court having jurisdiction, the Tribe waived its sovereign immunity as to attorney fees

incurred in enforcing that right and conferred on the state courts jurisdiction to award 

such fees.

4

 

For the foregoing reasons, we reject the Tribe’s contention that the superior court 

lacked jurisdiction to rule on Findleton’s motion for attorney fees, and hold that it waived 

sovereign immunity as to the fees Findleton incurred to enforce his right to arbitrate.

II.

The Tribe’s Contention That Comity Required the Superior Court

to Abstain from Making Further Rulings

The Tribe next argues that the superior court erred in failing to abstain from 

issuing any further rulings after we remanded the case to that court. It relies on Iowa 

Mutual Ins. Co. v. LaPlante (1987) 480 U.S. 9 (LaPlante), in which the Supreme Court 

held that federal policy supporting tribal self-government requires federal courts, as a 

matter of comity, to stay their hands to give tribal courts a full opportunity to first 

determine their own jurisdiction. (Id. at pp. 15–16.) The court described this rule as one 

of exhaustion of remedies, stating “tribal remedies [must] be exhausted before the 

question is addressed by the District Court.” (Id. at p. 15.) LaPlante involved a case 

based on federal diversity jurisdiction. (Id. at p. 11.) The tribal remedy exhaustion rule it 

applied was first articulated in National Farmers Union Ins. Cos. v. Crow Tribe (1985) 

471 U.S. 845, 856–857, a case based on federal question jurisdiction. 

 

already held, the Tribe waived any argument to the contrary by failing to raise it in the 

superior court. 

4 Having sought an award of fees in the superior court, invoking both a tribal 

ordinance and the Rental Contract coupled with section 1717 of the Code of Civil 

Procedure, the Tribe arguably placed jurisdiction over the issue of attorney fees in that

court. However, since Findleton does not argue the Tribe waived immunity as to the 

issue of fees by filing its own motion for fees in the superior court and invoking the 

contractual fee provision, we do not address that issue. 
9

The Tribe has not demonstrated that tribal remedy exhaustion was required here.5

Although there is some support in the law that has been cited to us that tribal court 

proceedings need not necessarily already be pending before the exhaustion principles 

premised on tribal sovereignty come in to play (see, e.g., Crawford v. Genuine Parts Co.

(9th Cir. 1991) 947 F.2d 1405, 1407), Findleton cites several cases holding that 

exhaustion of tribal court remedies is not required when no tribal court existed at the time 

the action was commenced. We find these cases persuasive, and applicable here.

6

In Krempel v. Prairie Island Indian Community (8th Cir. 1997) 125 F.3d 621

(Krempel), the plaintiff who had been employed by a tribe sued the tribe in state court for 

sexual harassment, discrimination and other employment-related claims. (Id. at p. 622.) 

The tribe removed the case to federal court and moved to dismiss for failure to exhaust 

tribal remedies. (Ibid.) The district court granted the motion and dismissed the case, 

reasoning that the development of the tribal court system after the case was filed weighed 

in favor of tribal court exhaustion. (Id. at p. 623.) 

The Eighth Circuit reversed, because when the case was filed no tribal court 

existed and the tribal court did not become fully operational until more than two months 

after removal. (Krempel, supra, 125 F.3d at p. 623. ) It explained, “The Supreme Court 

has required exhaustion of ‘available tribal remedies before instituting suit.’ 

[LaPlante], 480 U.S. at 19, 107 S.Ct. at 978 (our emphasis).” (Ibid.) Recognizing “tribal 

sovereignty and the resultant need to exhaust cases in tribal court,” the court “deem[ed] it 

inherently unfair to a plaintiff to require exhaustion in a court that was not operational 

 

5

In addition, neither LaPlante nor any other authority the Tribe cites supports its 

even broader contention that tribal court jurisdiction over this dispute is “exclusive.”

6 Our conclusion makes it unnecessary to decide other questions such as whether 

the comity doctrine articulated in the federal cases applies to state courts, and whether the 

comity doctrine applies to petitions to compel arbitration, as opposed to complaints filed 

in courts invoking their jurisdiction to decide cases on the merits. The latter issue is not 

addressed by either party, and neither cites any authority on the issue. (See Gaming 

World Int. v. White Earth Chippewa Indians (8th Cir. 2003) 317 F.3d 840, 851 [noting 

several circuits held exhaustion is required before seeking court order to compel 

arbitration].) 
10

until after the claim was filed.” (Ibid.) Further, the court observed, “the application of 

the exhaustion doctrine depends on the purposes of exhaustion being served,” and “[o]ne 

of the main purposes of the exhaustion requirement . . . is the principle of judicial 

economy.” (Ibid.) It concluded that principle would not be served in the case before it. 

“As much as tribal exhaustion might have been desirable in the initial stages of this suit, 

to require a plaintiff to turn back the clock and exhaust previously unavailable remedies 

is contrary to judicial efficiency and prejudicial to an individual who brings suit in a 

forum available for immediate resolution of his claim.” (Ibid.) 

The court also reasoned that the Supreme Court had analogized the doctrine of 

exhaustion to that of abstention, under which a “district court must determine whether 

‘the opportunity to raise and have timely decided’ before a state tribunal was available to 

the plaintiff when he brought his federal suit,” and if the state tribunal is deemed 

inadequate, abstention is not required. (Krempel, supra, 125 F.3d at p. 623.) By analogy, 

it concluded, “Obviously, to urge that a plaintiff must exhaust his tribal remedies at a 

time when a tribal court does not exist would, indeed, inject a futile requirement. 

Although the district court did not require this, its post facto reasoning would have a 

similar effect. Under the circumstances, we hold as a matter of law that Krempel, who 

had filed a timely claim in an existing forum, was not required to exhaust tribal remedies 

at a later time when the tribal court came into existence.” (Id. at p. 624.) 

Findleton also cites decisions from the Ninth and Fifth Circuits to the same effect.

(See Johnson v. Gila River Indian Community (9th Cir. 1999) 174 F.3d 1032, 1036 [error 

to dismiss plaintiff’s claim on exhaustion grounds where there was genuine question 

whether functioning tribal court existed at time complaint was filed and thus exhausting 

would be futile]; Comstock Oil & Gas Inc. v. Alabama and Coushatta Indian Tribes (5th 

Cir. 2001) 261 F.3d 567, 572–573 [affirming decision that plaintiffs were not required to 

exhaust tribal remedies before filing federal court action where no tribal court properly 

existed at time].)

This case falls squarely within the reasoning of Krempel. Here, there was no 

evidence before the trial court indicating there was a tribal court in existence in 2012 
11

when Findleton first filed his petition to compel arbitration in the superior court,7and 

Findleton contends there was still was no functioning tribal court even five years later, 

well after he had renewed his request by moving to compel arbitration after we had 

reversed the earlier dismissal and remanded the case to the superior court. Findleton’s 

petition thus did not interfere with the Tribe’s sovereignty in the way that filing such a 

petition in state court rather than initiating one in a functioning tribal court would have 

done. Nor would requiring exhaustion at this late date serve any purpose other than 

further delay of a case that is already six years old. Under the analysis of Krempel and its 

progeny, we conclude no exhaustion was required. Having reached that conclusion, we 

need not address Findleton’s further argument that the Tribe’s assertion of tribal court 

jurisdiction was motivated by a desire to harass or conducted in bad faith. 

III.

The Tribe’s Contention That the Ruling on Attorney Fees and Costs Was Premature

The Tribe’s final argument rests on an earlier argument we have already disposed 

of. It contends the superior court erred by deciding the fee and cost motion “before it 

concluded whether it had jurisdiction to do so.” Not so. The court did conclude it had 

jurisdiction; its minutes indicate it considered and overruled the Tribe’s jurisdiction 

argument. Further, we have again considered the Tribe’s arguments and concluded that 

the superior court had jurisdiction to the decide the motion. Thus, the Tribe has not 

shown any abuse of discretion by the superior court. 

 

7

In its brief in the trial court, the Tribe argued only that the Tribal Constitution 

permits the Tribal Council to “delegate its judicial powers to tribal courts outside the 

reservation” and that it had done so. The request for judicial notice it filed in support of 

that assertion attached documents reflecting that its constitution was only amended to 

provide that power on October 30, 2012, some seven months after Findleton filed his 

petition to compel arbitration in state court. Further, the request sought notice of rules of 

procedure for the Northern California Intertribal Court System adopted on February 28, 

2014, almost two years after Findleton filed his petition. Findleton objected to the 

Tribe’s request for judicial notice. Neither the minutes of the fee proceeding nor the 

order state whether the court granted or denied the request. We need not address whether 

judicial notice was proper, since even if it was, the Tribe’s documents fail to show there 

was a functioning tribal court until long after Findleton filed his petition. 
12

DISPOSITION

The order granting attorney fees and costs incurred by Findleton to enforce his 

right to arbitrate is affirmed.
13

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

Findleton v. Pomo Band of Coyote Indians (A150444)
14

Trial Court: Mendocino County Superior Court

Trial Judge: Hon. Richard J. Henderson

Counsel: 

Ceiba Legal and Little Fawn Boland; Brady & Vinding and Michael V. Brady for 

Defendant and Appellant.

Timothy W. Pemberton for Plaintiff and Respondent.