Filed 7/17/24 Alford v. Novak CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PAUL MARK ALFORD,

Plaintiff and Appellant,

v.

KORI NOVAK,

Defendant and Respondent.

D083782

(Super. Ct. No. 

ICSICVCV202065082)

APPEAL from a judgment of the Superior Court of Inyo County, 

Susanne Rizo, Judge. Reversed.

Law Offices of James R. Greiner and James R. Greiner for Plaintiff and 

Appellant.

Bona Law, Kristen Harris, Luke Hasskamp, and Jarod M. Bona for 

Defendant and Respondent.

Paul Mark Alford appeals from a judgment following an order granting 

Kori Novak’s motion for summary judgment. He contends the trial court 
2

erred in finding that tribal sovereign immunity insulated Novak from 

liability. We agree. Hence we reverse the judgment.1

I.

Background

This case arises in the context of a contentious relationship between

two (now former) officers of a health care provider known as Toiyabe Indian 

Health Project (Toiyabe). One of these two officers, Novak, served for several 

years as Toiyabe’s chief executive officer (CEO). The other, Alford, served as

the organization’s chief operations officer (COO)—until Novak terminated his 

employment, several months after it had begun.

Alford sought and was awarded relief in a tribal forum in connection 

with the termination of his employment.2 In addition, he filed a superior 

court complaint, against Novak and Toiyabe’s chief financial officer (CFO), 

alleging defamation and tortious interference with contract. Novak and the 

CFO filed a series of three demurrers that resulted in the case being whittled 

down to a single claim, defamation, being asserted against a single 

defendant, Novak, in what is now Alford’s operative pleading: the verified 

second amended complaint (the complaint).

1 No judgment appears in the record; however, for reasons set forth in 

our order of April 23, 2024, we construe the order granting summary 

judgment as incorporating an appealable judgment.

2 The record does not reveal the identit(ies) of the part(ies) against whom 

Alford sought relief in the tribal forum. Nor does it reveal the nature of the 

relief awarded there, or the part(ies) against whom it was awarded.
3

A. The Facts as Alleged in the Complaint

According to the allegations in the complaint,3 Novak made a number 

of statements to Toiyabe personnel that were false, malicious, unprivileged,

and injurious to Alford. By way of example, Novak told the CFO that Alford 

“was interested” in her, that she had rebuffed him, and that their working 

relationship had “soured” as a result. She told others that he had accessed 

her personal medical records in violation of HIPAA, had harassed her, was 

misappropriating Toiyabe funds, “was taking excess travel . . . and . . . time 

off and failing to record these activities on the books,” and was “unethical.”

She also stated “in several loud public conversations” that Alford “ ‘is 

incapable to lead and inept to lead as . . . COO.’ ” Each of these statements 

was “100% false, and malicious.”

The locations in which Novak made such statements included, not only

offices and a conference room in Toiyabe’s administration building, but also a 

break room, hallways, and “common areas, public areas and other nonprivate areas.” Among the persons who heard Novak make such statements 

were: the CFO, the compliance officer, a clinic manager, and a pharmacist. 

Novak also instructed several Toiyabe staff to make false allegations against 

Alford and stated: “ ‘I’m the Damn CEO.’ ” “ ‘I can do whatever I want.’ ”

“ ‘[T]his HIPAA complaint is going to do [Alford] in.’ ”

B. The Tribal Sovereign Immunity Defense, the Demurrers, and 

the Motion for Summary Judgment

As noted ante, Novak filed three demurrers. In its orders resolving the 

demurrers, the trial court repeatedly deferred ruling on an argument by

Novak that the case should be dismissed based on tribal sovereign immunity.

3 Each statement appearing in this section of our opinion is drawn from 

the complaint. We make no findings as to such statements’ truth or falsity.
4

In her answer to the complaint, Novak pleaded tribal sovereign immunity as

an affirmative defense; and, 21 months later, she filed a motion for summary 

judgment in which she identified as the only matters for resolution: “Issue 1: 

Whether the Toiyabe Indian Health Center is Entitled to [Tribal] Sovereign 

Immunity?” and “Issue 2: Whether Defendant . . . Novak is Entitled to Tribal 

[Sovereign] Immunity as an Officer of the Toiyabe Indian Health Center?”

The trial court heard and granted the motion, and Alford timely 

appealed.

II.

Discussion

On appeal, Alford does not dispute that tribal sovereign immunity

applies to Toiyabe. But he contends it does not apply to Novak. Novak

disagrees, contending that, “The trial court correctly dismissed Mr. Alford’s 

lawsuit under tribal sovereign immunity because it [the lawsuit] implicates 

or could interfere with tribal governance or administration: the tribal 

entity’s ability to manage internal personnel decisions, terminate 

underperforming employees, and communicate those decisions to other 

employees and tribal officials.”

In debating the applicability of tribal sovereign immunity, the parties

focus substantial attention on a split of authority with respect to the 

continuing vitality or the demise of the principal expressed in Maxwell v. 

County of San Diego (9th Cir. 2013) 708 F.3d 1075 (Maxwell) that, “[i]n any 

suit against tribal officers, we must be sensitive to whether ‘the judgment 

sought would . . . interfere with the . . . administration’ ” of tribal affairs.4

4 The above-quoted passage from Maxwell is traceable to the opinion of 

the United States Supreme Court in Land v. Dollar (1947) 339 U.S. 731, 738

(Land).
5

(Maxwell, at p. 1088; see also Pistor v. Garcia (9th Cir. 2015) 791 F.3d 1104, 

1113.) The role that such potential interference should play, as a matter of 

law, is an important topic. But it is a topic that we need not address, because 

we conclude Novak has not met her burden of proof as to matters of fact. 

A. Burden of Proof and Standard of Review

When reviewing an order granting a motion for summary judgment, we 

examine the record de novo, strictly construing the moving party’s evidence, 

and resolving evidentiary doubts in favor of the party against whom the order 

was entered. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843

(Aguilar); Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460; 

Blaylock v. DMP 250 Newport Center, LLC (2023) 92 Cal.App.5th 863, 869–

870.)

“[T]he party moving for summary judgment bears [the] initial burden of 

production to make a prima facie showing of the nonexistence of any triable 

issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie 

In debating the passage’s continuing vitality versus demise, both 

parties refer extensively to the high court’s opinion in Lewis v. Clarke (2017)

581 U.S. 156 (Lewis), and each party argues its preferred branch of a split of 

authority that has developed in that opinion’s wake. Thus, for example, 

Alford emphasizes and relies upon Acres Bonusing, Inc. v. Marston (9th Cir. 

2021) 17 F.4th 901, 911-914 (Acres Bonusing) (rejecting principle that the 

effect a judgment sought would have on the administration of tribal affairs is 

a matter to be considered in evaluating a tribal sovereign immunity defense)

and Acres v. Marston (2021) 72 Cal.App.5th 417, 437-439, and Novak 

emphasizes and relies upon Brown v. Garcia (2017) 17 Cal.App.5th 1198, 

1205-1207 (finding tribal sovereign immunity applies due to effect the 

judgment sought would have on administration of tribal affairs). (Cf. Acres 

Bonusing, 17 F.4th at p. 918 (conc. opn. of Feinerman, J.) [criticizing Acres 

Bonusing majority for “[d]iminishing or excising,” and “leav[ing] no room for 

independent operation of,” the principle that consideration must be given to

whether a judgment sought would interfere with the administration of tribal 

affairs, and for “effectively suggest[ing] . . . [that principle] is a dead letter”]).
6

showing is one that is sufficient to support the position of the party in 

question.” (Id. at p. 851.) Among the ways in which a defendant may satisfy 

that initial burden is by producing evidence of a complete defense. (Code Civ. 

Proc., § 437c, subd. (p)(2); Aguilar, at p. 853.) If the defendant satisfies this

initial burden—say, for example, by making a sufficient showing that there is 

no triable issue of material fact regarding the existence of a complete defense,

such as tribal sovereign immunity—then the burden shifts to the plaintiff to 

show that a triable issue of material fact does exist regarding the existence of 

that defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) But, if 

the defendant does not meet her initial burden of production, then the burden 

does not shift from the defendant to the plaintiff. In that situation, the 

plaintiff need not adduce any evidence, and the motion must be denied.

B. Analysis

In this case, Novak sought to meet her burden of production by 

adducing two types of evidence in support of her position that tribal sovereign 

immunity furnishes her with a complete defense: (1) testimony to support 

her contention that Toiyabe is entitled to tribal sovereign immunity;5 and 

(2) testimony to support her contention that she is entitled to tribal sovereign 

immunity as an officer of Toiyabe. (See ante.) The first of these two types of 

evidence is not in issue on appeal, because Alford disavows the position that

Toiyabe is without tribal sovereign immunity. (See ante.) But the second 

5 This evidence consisted of: a declaration by the California Rural Indian 

Health Board’s former executive director bearing on ways in which

(unspecified) tribal health care programs receive funding, training, and other 

forms of assistance, and on how such programs have evolved over time; and

declarations by Novak, the CFO, and the chairman of Toiyabe’s board of 

directors bearing on Toiyabe specifically, including, for example: its purpose, 

its creation and growth over the years, the services it provides, the 

communities and clientele it serves, the locations of its clinics, and attributes 

of its governance, funding, and finances.
7

type of evidence—that bearing on whether tribal sovereign immunity extends

to Novak—is in issue. 

Insofar as this second type of evidence is concerned, Novak’s showing in 

support of her motion consisted of ten sentences in a declaration, by her, the

sum and substance of which were:

– That, in her role as CEO, Novak had “participated in and 

was responsible for the hiring and termination of . . . Alford” 

and “for communicating the details of his termination to the 

Toiyabe Board of Directors and Toiyabe personnel”;

– that “[i]t was necessary to communicate information 

about . . . Alford’s termination to Toiyabe’s Board of 

Directors and Toiyabe personnel to ensure the effective 

administration of Toiyabe’s operations, including areas for 

which . . . Alford had been responsible”; and

– that, “[b]efore . . . Alford’s filing of this lawsuit, I did not 

discuss his termination with anyone who was not a member 

of Toiyabe’s Board of Directors or a Toiyabe employee.”6 

Novak produced this evidence in support of the fundamental premise of 

her tribal sovereign immunity defense—i.e, the premise that tribal sovereign 

immunity shields her from liability for the statements she made about Alford,

because those statements were made in the course and scope of her role as 

6 Alford neither disputed nor objected to any of Novak’s evidence. But he 

did not need to, because (as discussed post) that evidence did not satisfy the 

burden of production for Novak’s tribal sovereign immunity defense. (Alford 

did submit evidence of his own (declarations from a former Toiyabe 

compliance director, a former Toiyabe information technology director, and 

Alford himself) that was generally in keeping with the allegations in the 

complaint; but, because Novak did not satisfy her burden of production, 

Alford’s evidence was unnecessary.)
8

CEO of Toiyabe and thus were indispensable to the administration of tribal 

affairs.7 

But missing from Novak’s submission to the trial court is any evidence 

to substantiate the contention that it was in the course and scope of her role 

as CEO that she made the remarks she is alleged to have made about Alford. 

Indeed, nowhere in that submission is there any evidence from which a

reader may discern what she is alleged to have said or the circumstances in 

which she is alleged to have said it. In other words, there is no quotation, 

paraphrase, or description of any statement she is alleged to have made, and

there is no (non-conclusory) indication as to the circumstances attending the 

making of such a statement—such as, for example: why, where, through 

what means, to whom, and in whose presence or earshot the statement was 

made.

Distilled to its essence, the evidence produced regarding whether tribal 

sovereign immunity of Toiyabe extends to Novak consisted of nothing more 

than testimony (1) that it was Novak’s responsibility as CEO to make 

decisions about terminating Alford’s employment and to communicate 

information about Alford’s termination to Toiyabe’s Board of Directors and 

7 For purposes of this appeal, we assume without deciding that Novak’s 

position as Toiyabe CEO qualified her as a tribal officer within the meaning 

of case law bearing on tribal sovereign immunity. So too do we assume,

based on Alford’s concession and without deciding the matter, that Toiyabe 

qualified as a tribal entity within the meaning of such case law.
9

personnel, and (2) that she fulfilled that responsibility.8 But, even accepting 

these assertions as true, it does not follow that whatever information Novak

communicated to Toiyabe’s directors or its personnel was within the course 

and scope of her role as CEO. (Cf. Grand Canyon Skywalk Development, LLC 

v. Ciestak (2015) 2015 WL 3551305, *3-5 [tribal sovereign immunity 

unavailable absent showing that, in engaging in challenged conduct, tribal 

officer was acting in representative capacity and within scope of tribal 

authority; discussing case law]; United States v. Yakima Tribal Court (9th 

Cir. 1986) 806 F.2d 853, 859 [“[i]f an employee of the [sovereign] acts 

completely outside his governmental authority, he has no immunity”]; 

Puyallup Tribe, Inc. v. Department of Game of State of Washington (1977) 

433 U.S. 165, 168, fn. 3, 173 [tribal sovereign immunity unavailable to tribal 

officers acting in private capacity as fishermen, instead of in public roles 

administering tribal affairs].)

Were we to conclude otherwise, we in effect would be deciding that, no 

matter what Novak said about Alford, no matter who she said it to, no matter 

where she said it, and no matter who she had reason to know was in earshot, 

it must be construed as having been in the course and scope of her role as 

CEO because that role encompassed personnel matters and personnel 

matters are essential to the administration of tribal affairs. Or stated 

differently, we would be ruling that, because Novak was vested with 

8 As noted ante, Novak also stated in her declaration that “[b]efore . . . 

this lawsuit, I did not discuss [Alford’s] termination with anyone who was not 

a member of Toiyabe’s Board of Directors or a Toiyabe employee.” But to say 

that she limited her discussions about Alford’s termination to just those 

individuals is not to say that she limited her discussions about her

disapproval of Alford to just those individuals. Nor is to say there was a 

legitimate business purpose for each such individual to hear from her about 

whatever topics are encompassed within her understanding of the phrase 

“[Alford’s] termination.”
10

authority to handle personnel matters, she was at liberty to say anything—no 

matter how false, unprivileged, defamatory, or injurious9—about any 

Toiyabe employee or former employee to any of some 134 individuals10

associated with Toiyabe. By this reasoning, the immunity of the sovereign 

would insulate Novak from liability even if she had gratuitously smeared 

Alford with deliberately false, defamatory, unprivileged, and injurious

remarks that had nothing to do with his actual job performance or character.

We hasten to add there was no evidence of any such remarks here. But 

that is precisely the point: There was no evidence in Novak’s submission to 

the trial court of any statements at all. Novak had many months in which to 

engage in discovery to identify the universe of statements she was being 

alleged to have made, and to elicit testimony and documents bearing on

whether, why, where, through what means, to whom, and in whose presence 

or earshot such statements had been made. Presuming she had engaged in 

such discovery, she could have catalogued the alleged statements and

proffered evidence, as to each such alleged statement, indicating either that 

it had not been made or that the circumstances in which it had been made

harmonized with Novak’s role as CEO. 

Because she has not tethered the premise of her motion to such 

evidence, Novak has left open the possibility that some or all of her remarks

9 “ ‘ “ ‘The elements of a defamation claim are (1) a publication that is 

(2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to 

injure or causes special damage.’ ” ’ ” (Hoang v. Tran (2021) 60 Cal.App.5th 

513, 531–532.)

10 Novak stated in her declaration that, “[d]uring [her] time, Toiyabe had 

more than 120 employees”; and the chairman of Toiyabe’s board of directors 

stated in his declaration that “Toiyabe is governed and controlled by a 

fourteen member Board of Directors.”
11

about Alford were gratuitous smears not in furtherance of the mission of 

Toiyabe.11 Hence she has not carried her “initial burden of production to 

make a prima facie showing of the nonexistence of [a] triable issue of 

material fact” (Aguilar, supra, 25 Cal.4th at p. 850) regarding her tribal 

sovereign immunity defense.12 

11 In her brief Novak points out, correctly, that “Mr. Alford offered no 

evidence that anyone other than Toiyabe employees and tribal officials heard 

the allegedly defamatory statements.” But this observation is inapposite

inasmuch as the failure on the part of Novak to satisfy the burden of 

producing evidence identifying the remarks alleged against her and tending 

to demonstrate that those remarks had indeed been in the course and scope 

of her role as CEO resulted in the burden not shifting to Alford.

Novak also argues that: “Simply insisting that a tribal entity’s 

termination of an employee and the CEO’s communications with employees, 

board members, and tribal officials about his termination are unrelated to 

tribal governance does not make it so.” But the inverse is equally true, and

more pertinent: Simply insisting that Toiyabe’s termination of Alford and 

Novak’s communications with employees, board members, and tribal officials 

about his termination are related to tribal governance does not make it so.

12 This is not to say that Novak will be unable to establish a tribal 

sovereign immunity defense at trial. (Cf. Larson v. Domestic & Foreign 

Commerce Corp. (1949) 337 U.S. 682, 690 [noting in context of sovereign 

immunity defense that “jurisdiction of the court to hear the case may 

depend . . . upon the decision . . . it ultimately reaches on the merits”]; Land, 

supra, 339 U.S. at p. 739 [holding, in situation in which evidence needed to 

evaluate sovereign immunity defense had not been presented and in which 

such evidence partially overlapped with evidence as to the merits of plaintiffs’ 

claims, that trial court “has jurisdiction to determine its jurisdiction by 

proceeding to a decision on the merits”].) We express no view regarding

whether Novak will succeed at trial in establishing a tribal sovereign 

immunity defense. Nor do we express any view regarding whether Alford 

will succeed at trial in establishing defamation.
12

III.

Disposition

The judgment is reversed. Alford is entitled to costs on appeal.

KELETY, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.