Filed 7/17/24 Alford v. Novak CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PAUL MARK ALFORD

,

Plaintiff and Appellant

,

v.

KORI NOVAK,

Defendant and Respondent

. D08 3782

(Super. Ct. No.
ICSICVCV202065082 )

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

Su sanne Rizo , Judge. Reversed

.
Law Offices of James R. Greiner and James R. Greiner f or Plaintiff and

Appellant.

Bona Law

, Kris ten 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 court2

erred in finding that tribal sovereign im munity insulated Novak from

liability

. We agree. Hence we reverse the judgment

. 1

I. Background

Th is case arises in the context of a contentious relationship between

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

Health Projec t (Toiyabe )

. O ne of the se two officer s , Novak, served for several

years as Toiyabe’s chief executive officer (CEO). The other , Alford, served as
the organization’s chief operat ions officer (COO)

— until Novak terminated his

employment

, several months after it had begun

.
A lford 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 p leading: the verified

second amended complaint ( the complaint)

.

1 N o 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 inju rious 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 viol ation 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 bui lding, but also a

break room, hallways, and “common areas, public areas and other non

private areas

. ” Among the persons who heard Novak make such statements

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

.
Novak also instruct ed 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 Mo tion 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 fin dings as to such statements’ truth or falsity.4

In her a nswer 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:

W hether the Toiyabe Indian Heal th Center is E ntitled to [ T ribal] Sovereign

Immunity ? ” and “Issue 2: W hether 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 tim ely

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 und er 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 de cisions to other

employees and tribal officials.”

In debating the applicability of tribal sovereign immunity, t he 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 (9 th 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

( Maxwel l, 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 a n 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 a n order granting a motion for summary judgment, we

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

and resolving evidentia ry 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 C enter , 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 debat ing 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 emp hasizes and relies upon Acres Bonusing , Inc. v. Marston ( 9th Cir. 2021) 17 F.4th 901 , 911

- 91 4 ( Acres Bonusing

) ( rejecting principle that the
effect a judgment sought would have on th e administration of tribal affairs i s

a matter to be consider ed in evaluat ing 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 judgme nt 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

, ” th e principle that consider ation must be given to
whether a judgment sought would interfere with the administration of tribal
affairs

, and for “effectively suggest[ ing ]

. . . [th at 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.) A mong the ways in which a defendant may satisfy

th at 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 th is

initial burden

— say, f

or 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

— the n 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 p roduction

, the n 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 t wo types of evidence in support of her position that tribal sovereign

immunity furnishe s 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 contenti on 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 an te .) But t he 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
decla rations by Novak, the CFO, and the chairman of Toiyab e ’s board of

directors bearing on Toiyab e specifically , including, for example : its purpose, its creation and growth over the years, the services it provides, the communities and clientele it serves, th e 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 declarati on, 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 Director s and Toiyabe personnel” ;

– t hat “[ 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” ; a nd

– t hat

, “ [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 sup port 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 th ose 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 produc tion 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 th e 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 oth er 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, throug h

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

made

. Distilled to its essence, t he 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 offic er 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 acce pting

these assertions as true

, it does not follow that whatever information Novak

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

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

v. Ciestak (2015) 2015 W L 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 C ourt (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 [t ribal 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 , n o

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 p ersonnel

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

differently , we would be ruling that, b ecause Novak was vested with

8 As noted ante , Nov ak 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 t o 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
whatev er 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, unprivileg ed, defamatory , or injurious 9

— about any

Toiyabe employee or former employee to any of some 134 individuals 10

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 w as 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 bearin g 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 al leged 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 possibi lity 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 c auses special damage. ’ ” ’ ” ( Hoang v. Tran (202 1 ) 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 Toiyab e ’s board of directors

stated in his declaratio n 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

m aterial 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 defamat ory 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 c ourse 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 triba l 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 proceedi ng to a decision on the merits”].) We express no view regarding
whether Novak will succeed at trial in establish ing a tribal sovereign immunity defense . Nor do we express any view regarding whether Alford

will succeed at trial in establishing defamation.12 I II

. Disposition

The judgment is reversed

. Alford is entitled to costs on appeal.

KELETY, J.

WE CONCUR:

DATO , A cting P. J.

BUCHANAN , J.