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Filed 2/28/24 Windham v. Medestar Locum Tene n s CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

SUZONNE WINDHAM, Plaintiff and Appellant,

v. MEDESTAR LOCUM TENENS, LLC, et al., Defendant s and Respondent s . E078518 (Super.Ct.No. CVRI2101244) OPINION

APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed. The Law Office of Karen J. Sloat , Karen J. Sloat; Hellmich Law Group and Christopher W. Hellmich, for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Derek S. Sachs, and George J. Theofanis, for Defendant and Respondent Medestar Locum Tenens, LLC

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Suzonne Windham, plaintiff, filed a wage and hour lawsuit against defendants Medestar Locum Tenens, LLC (Medestar) , a health care staffing agency, and MACT Health B oard , Inc. (MACT), a health care consortium of two federally recognized tribes ,

a s well as several federally acknowledged tribal organizations

. After Medestar answered the complaint, MACT filed a motion to quash service of the summons on the ground of tribal immunity from lawsuits. Medestar joined the motion, which was granted by the trial cou rt. Windham appeals. On appeal, Windham argues (1) the trial court erred by conferring tribal immunity on Medestar derivative from its contractual relationship with MACT without requiring it to prove it was an arm of the tribe, and (2) Medestar waived imm unity by filing an answer to the complaint. We affirm.
B ACKGROUND Medestar is a health care staffing agency, headquartered in Dallas, Texas, matching medical health care providers with health care facilities. MACT is a health care consortium of t he Jacks on Rancheria of M e - Wuk Indians of California (now known as the Jackson Band of Miwuk Indians) and the Ione Band of Miwok Indians of California , as well as several federally acknowledged tribal organizations. The primary mission of MACT is to improve the h ealth status of the American Indian Native population in its service area , comprising four counties that give MACT its name: Mariposa, Amador, Calaveras, and Tuolumne

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MACT is a nonprofit corporation formed in 1979. It i s governed by a b oard of d irectors compris ing three individuals who are: (1) members of federally recognized Native American tribes; and (2) appointed by the lead e rship of those tribes and an

a dvisory c ouncil comprised of five individuals who are members of Native American tribes and appointed by the Native American communities they serve, which represents all Indian people living in the four

- county service area. The b oard and a dvisory c ouncil are active in MACT’s administration and management. MACT received federal funds as a sub contractor of the California Rural Indian Health Board f

rom 1972 until 2012. In March 2013, MACT negotiated its own contract with Indian Health Service (IHS) under the Indian Self

- Determination and Education Assistance Act (ISDEAA). On April 1, 2016, MAC T renegotiated its ISDEAA

a greement with IHS. Under these a greements, MACT receive s funding from IHS to provide health care services to eligible members of Native American tribes. In approximately January 2020, MACT contracted with Medestar to provide
MAC T with health care providers to work temporarily at one or more of MACT’s
facilities. At that time, MACT had a staffing need for nursers

. Medestar hired Windham as an independent contractor to work as a nurse at a MACT clinic in northern California for a fixed term of 90 days at $95/hour.
In March 2020, Medestar reclassified Windham as an employee. Medestar also extended Windham’s fixed

- term contract but terminated her employment in April 2020 as the pandemic impacted many health care facilities. A wage and hour dispute arose4

when her employment was terminated, and Windham filed a proposed class action against Medestar and MACT, alleging numerous causes of action under the Labor Code

. 1 In the complaint, W i ndham alleges that Medestar and MACT were h er joint employers. On September 14, 2021, Medestar answered the FAC , asserting various affirmative defenses, including sovereign immunity. On September 23, 2021, MACT filed a motion to quash service of summons and to dismiss the action on the ground of

s overeign immunity (the motion)

. MACT requested judicial notice of the Federal Register, Volume 85 , No. 20 pages 5462

- 5467 (Jan

. 30, 2020), listing the Jackson Band of Miwuk Indians (formerly known as the Jackson Rancheria of Me

- W uk Indians of California) and the Ione Band of Miwok Indians of California as Federally Registered Indian Tribes. Attached to the motion documents were the a rticles of i ncorporation and the

c orporate b y l aw s of MACT reflect s the corporate purpose : “The specific and primary
purposes are to establish, govern, organize, and maintain and expand existing direct health care services, projects and programs for the Indian population of Central California and to provide and improve on the delivery of direct health services to the aforementio ned population.” Additionally, the b y l aws included the purpose of support ing the collection of artifacts of importance to Native Americans served, as well as to provide health care services to nonIndian population as deemed appropriate by the MACT Board of Directors

.
1 A f

irst a mended c omplaint (FAC) was subsequently filed on August 19, 2021, but it is substantially the same as the original complaint, as is Medestar’s answer to the FAC.5

Membership in MACT is limited to F ederally R ecognized Indian T ri bes in the service area , who may apply for membership after participating as an a dvisory m ember for no less than three years. The b y l aws further explain that the term “Federally Recognized Indian Tribe” means any tribal entity recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of its status as an Indian tribe. Additional attachments to the motion included a t ribal r esolution by the Jackson Rancheria Band of Miwuk Indians designating MACT as a t ribal o rganization , a nd authorizing MACT to contract with IHS for comprehensive health services to its members and other eligible Indians in the service area. A similar t ribal r esolution by the Ione Band of Miwok Indians also designated MACT as the local care provider of
comp rehensive health care and related services. This resolution named an official t ribal delegate to serve on the MACT Board of Directors

. Finally, the attachments to the motion included an ISDEAA between MACT and the Department of Health and Human Services I ndian Health Service. On September 23, 2021, Medestar joined in the motion. Windham opposed both the motion by MACT and the joinder by Medestar and objected to the evidentiary matters proffered by MACT

. Attached to Windham’s opposition papers was a copy of her employment contract with Medestar. The motion w a s heard on November 22, 2021, at which time the court took the matters of the motion as w ell as Medestar’s j oinder under submission. On December 15, 2021, the court issued its rulings, granting both MACT’s motion and Medestar’s joinder,6

granting MACT’s r equest for j udicial n otice, overruling plaintiff’s evidentiary objections to MACT’s declar ations, and sustaining objections by MACT to plaintiff’s declaration. The court found MACT met its burden of proving it was an arm of the tribe entitled to tribal immunity, that it did not waive its immunity because a tribe is only subject to suit where C ongress has authorized it, or the tribe has waived immunity. The court found that

a tribe’s consent cannot be implied and that t he asserted waiver at issue wa s an agreement to arbitrate included in a contract between MACT and Medestar , which was not a cle ar consent to suit by the tribes

. F urther , because plaintiff was not a party to that contract, she failed to establish she is a third party beneficiary thereto. On February 10, 2022, plaintiff Windham appealed.
D ISCUSSION 1. Whether Medestar and MACT Are “Ar ms of the Tribes” Plaintiff argues that MACT failed to establish it was an “arm of the tribe,” entitled to immunity from lawsuit. Here, Windham asserts that MACT was a tribally affiliated entity whose attenuated relationship to the tribes did not entitle it to immunity, under the reasoning of People v. Miami Nation Enterprises (2016) 2 Cal.5th 222 ( Miami Nation ). We disagree.
A. Backgr ound of Tribal Immunity Indian tribes are “‘domestic dependent nations’” that exercise ‘ “inherent sovereign authority.” ’ ( Michigan v. Bay Mills Indian C om m uni ty (2014) 572 U.S. 782, 788 ( Bay Mills ) , quoting Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla

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(1991) 498 U.S. 505, 509.) As dependents, the tribes are subject to plenary control by Congress. ( See United States v. Lara (2004) 541 U.S. 193, 200 .) However, they remain “separate sovereigns pre

- existing the Constitution.” ( Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 56. ) Thus, unless and “until Congress acts, the tribes retain” their historic sovereign authority. ( United States v. Wheeler (1978) 435 U.S. 313, 323 ; see also Self v. Cher

- Ae Heights Indian Community of Trinidad Rancheria (2021) 60 Cal.App.5th 209 , 213

. ) As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit, or the tribe has waived its immunity. ( Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc

. (1998) 523 U.S. 751, 754 ( Kiowa ) .) As a matter of federal law, this immunity from suit “is not subject to diminution by the States.” ( Miami
Nation , supra , 2 Cal.5th at pp. 234

- 235, quoting Kiowa , at p. 75 6.) Tribal immunity applies in both federal and state court and extends to “ suits arising from a tribe ’ s commercial activities, even when they take place off Indian lands. ” ( Bay Mills , supra , 572 U.S. at p. 790 .) Immunity can be abrogated by Congress, but

con gressional intent to abrogate tribal immunity must be “‘“unequivocally expressed.”’” ( Santa Clara Pueblo , supra , 436 U.S. at p. 58.) Immunity may also be waived, but “a
tribe ’ s waiver must be ‘clear.’” ( C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla. (2001) 532 U.S. 411, 418.) As discussed in more detail below, tribal “immunity applies not just broadly but deeply, frequently protecting not just tribal governments, but tribal entities and corporations that are considered subentit ies of the8

tribe.” ( Miami Nation , supra, 2 Cal.5th at p. 235, citing Florey, Indian Country ’ s Borders: Territoriality, Immunity, and the Construction of Tribal Sovereignty (2010) 51 B.C.L.Rev. 595, 627.) The general rule is that although Indian tribes are not immune from lawsuits filed against them by the United States, the Indian tribes’ sovereign status affords them immunity from state jurisdiction. ( Agua Caliente Band of Cahuilla Indians v. Superior
Co urt (2006) 40 Cal.4th 239, 247

- 248, citing Cohen, Handbook of Federal Indian Law (2005 ed.) § 7.05[1][a], p. 636.) But there is a limitation: “Although the immunity extends to entities that are arms of the tribes, it apparently does not cover tribally cha rtered corporations that are completely independent of the tribe. Nor does the immunity extend to members of the tribe just because of their status as members.

. . . When tribal officials act outside the bounds of their lawful authority, however, most

cou rts would extend the doctrine of Ex Parte Young (1908) 209 U.S. 123

. . . , to allow suits against the officials, at least for declaratory or injunctive relief.” ( Agua Caliente at
p p. 247

- 248, citing Cohen , supra , § 7.05[1][a], pp. 636

– 637, fns. omitted.)
B. Immunity of MACT As An Arm of the Tribe The question presented here is whether MACT established that it is an “arm of the

t ribe” for which it is immune from suit. We review the immunity issue de novo. ( Self v. Cher

- Ae Heights Indian Community of Trinida d Rancheria, supra, 60 Cal.App.5th at
p. 216, citing Miami Nation , supra , 2 Cal.5th at p. 250.)9

Tribal sovereign immunity may extend to subdivisions of a tribe, including those engaged in economic activities, provided the relationship between the tribe and the entity is sufficiently close to properly permit the entity to share in the tribe ’ s immunity

. ( Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino & Resort (10th Cir. 2010) 629 F.3d 1173, 1183.) “[A]n entity asserting immunity bears the burden of showing by a preponderance of the evidence that it is an ‘ arm of the tribe ’ entitled to tribal immunity.” ( Miami Nation , supra , 2 Cal.5th at p. 236.) In the case of Miami Nation, our Supreme Court addres sed the situation in which two f ederally recognized tribes created affiliated business entities , and t hose entities or their subsidiaries then provided deferred deposit loans through the Internet to California borrowers under terms that allegedly violated the California Deferred Deposit Transaction Law

. (Fin. Code, § 23000 et seq.) It concluded that an entity asserting immunity bears the burden of showing by a preponderance of the evidence that it is an “arm of the tribe” entitled to tribal immunity. Howe ver, Miami Nation concerned off

reservation commercial activity. (See discussion at 2 Cal.5th pp. 234

- 235.) To determine if the tribally created entities were entitled to tribal immunity as “arms of the tribe,” the Supreme Court devised “ a five

- factor tes t that considers (1) the entity ’ s method of creation, (2) whether the tribe intended the entity to share in its immunity, (3) the entity ’ s purpose, (4) the tribe ’ s control over the entity, and (5) the financial relationship between the tribe and the entity

. ” ( Miami Nation , supra , 2 Cal.5th at p. 236.) In addition to these five factors, a sixth factor has been identified: “whether10

the purposes of tribal sovereign immunity are served by granting [the entity] immunity.” ( Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort , supra , 629 F.3d at p. 1181.) As decisional law recognizes, immunity for subordinate economic entities “ directly protects the sovereign Tribe ’ s treasury, which is one of the historic purposes of sovereign immunity in general. ” ( Allen v. Gold Country Casino (9th Cir. 2006) 464 F.3d 1044, 1047 , citing Alden v. Maine (1999) 527 U.S. 706, 750 .) Here, an examination of the six factors supports the trial court’s determination: (1) The method of MACT’s creation demonstrates it was incorporated as a not

- for

profit corporat ion, for the express purpose of providing health care services to tribal member s . In addition, its formation was accomplished by means of a t ribal r esolution, and its b oard consists of tribal members. (2) The r esolution by the Jackson Rancheria Band of Mi wuk Indians designated
MACT as a t ribal o rganization, authorizing MACT to contract with IHS for comprehensive health services to its members and other eligible Indians in the service area; the t ribal r esolution by the Ione Band contains similar provisions, and named an official t ribal delegate to serve on the MACT Board. (3) The entity’s stated purpose was to provide health care services to Central California tribal members. (4) The tribes maintained control over the entity by naming delegates to the h ealth

c are b oard and membership in MACT is lim ited to Federally Recognized Indian Tribes in the service area. In this respect, the tribes are not passive participants, as suggested by11

plaintiff. The d eclaration of the e xecutive d irector of MACT established that MACT is entirely subject to the oversi ght and control of its member tribes and tribal organizations. (5) The financial relationship between the entity and the board demonstrates a tribal function given that the authorization to enter into contracts with IHS was for the stated purpose of provid ing comprehensive health services to tribal members and other eligible Indians in the service area. This was not a commercial agreement, as plaintiff describ ed it during oral argument. The nonprofit nature of the health care organization is itself a feat ure distinguishing this case from Miami Nation. Unlike Miami Nation, the

a rticles of i ncorporation and c orporate b y l aws do not refer to the payment of any revenues to the tribes. Instead, the funding of MACT was provided pursuant to its contract with IHS, and the contract designates MACT as a “public health service

. ” (6) Finally, the purposes of tribal sovereign immunity are served by granting MACT immunity given the tribes’ duty to provide health care services for the tribal members they serve, and the need to promote Indian self

- determination. (See Pink v. Modoc Indian Health P roject (9th Cir. 1998) 157 F.3d 1185 , 1188

- 1189 .) Plaintiff argues that MACT failed to make its proof with admissible, authenticated evidence, but the trial court overruled her objection s at the hearing. At that time, counsel for MACT pointed out that the declarant, to whose declaration the relevant documents were attached, was the e xecutive d irector of MACT, who had the requisite knowledge to provide a foundation for the evidence. Plaintiff’s other arguments that MACT’s evidence did not fully explain the manner of its formation in 1979, objections which were also12

overruled by the trial court, do not demonstrate prejudicial error given the matters recited in the a rticles of i ncorporation and the corporate b y l aws that re affirm that the creation of
MACT was for the tribal purpose of providing health care services to tribal members, and that MACT is comprised wholly of tribal members

. Plaintiff also argues that MACT failed to disclose the amount of revenue it derives from non

- Native American patients versus Na tive Americans whose care is paid for by the federal government n or provide concrete evidence demonstrating the actual services MACT performs for its various beneficiaries , and its proportionate sources of revenue

. The five

- factor Miami Nation test does n ot require such a level of proof, particularly where the entity is a not

- for

- profit public health service under contract with the IHS

. The fact MACT’s health care services may be available to nonIndian patients “ as deemed appropriate by the M.A.C.T. Healt h Board ”, does not affect the calculus. 2 The record demonstrates MACT met its burden of proving by a preponderance of evidence that it was an arm of the tribes, entitled to tribal immunity.

2 T he Emergency Medical Treatment and Active Labor Act (42 U.S.C. §1395dd) requires any hospital with an emergency department to screen o r treat any patient who comes to that department. The challenged paragraph in the a rticle of i ncorporation and b y l aws simply reflects this congressionally mandated obligation, and, absent other evidence to the contrary, does not suggest the possibility th at MACT engages in profit

making medical services inconsistent with its stated purposes. MACT’s revenues are irrelevant to the nature of this wage and hour action where plaintiff has not alleged a corporate fraud, so these assertions appear to be more of a fishing expedition.13

C. Whether Medestar Is Entitled to Tribal Immunity Plaintiff also argues the trial court erred in failing to r equire Medestar to show proof it met the 5

- part arm

- of

- the

- tribe test of Miami Nation . We disagree again. Throughout plaintiff’s complaint, she alleged she was jointly employed by Medestar and MACT. 3 As such, her claims were subject to Labor Code section 2810.3, subdivision (b), which provides: “A client employer shall share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for both of the following: ¶ (1) The payment of wages. ¶ (2) Failure to secure valid workers’ compensation coverage as required by Section 3700.” There is a paucity of decisional law treating the shared liability or affirmative defenses between a labor contractor and a client employer, although the statutory
l anguage is unambiguous. California Labor Code § 2810.3(b) imposes shared liability for wage

- and

- hour violations between a “client employer” and a “labor contractor.” A “[c]lient employer” is a “ business entity . . . that obtains or is provided workers to perform labor within its usual course of business. ” ( Lab. Code, § 2810.3 (a)(1)(A) , (b)

. )
A “ [l]abor contractor ” is the entity “ that supplies . . . a client employer with workers to perform labor within the client employer ’ s usual course of business. ” ( Parsittie v.

3 At oral argument, plaintiff attempted to walk back this assertion, distancing itself from th e joint employer theory, by pointing out that she had dismissed MACT on appeal and was proceed ing against Medestar alone. However, there is nothing in the appellate record showing that her complaint was amended to delete the allegation that MACT and Medestar were joint employers

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Schneider Logistics, Inc . (9th Cir. 2021) 859 F ed .Appx

. 106, 108

- 109; Lab. Code, § 2810.3(a)(3). ) A joint employer relationship exists when two or more entities, according to common law principles, share significant control of the same employee. ( Felder v. United States Tennis Ass'n (2d Cir. 2022) 27 F.4th 834, 843, citing Knitter v. Corvias Mil. Livi ng, LLC (10th Cir. 2014) 758 F.3d 1214, 1226; see also Bristol v. Bd. of Cnty. Comm'rs of Cnty. of Clear Creek (10th Cir. 2002) 312 F.3d 1213, 1218.) However, d etermining the existence of a joint employer relationship does not settle the issue, for Labor C ode section 2810.3 refers only to shared civil responsibility and liability , and does not speak to shared defenses, or whether a defense applicable to one joint employer applies to both automatically. Some decisions affirm different treatment of joint emp loyers. (See Grande v. Eisenhower Medical Center (2020) 44 Cal.App.5th 1147 , 1160 [ whether an employer is liable for a coemployer ’ s violations depends on the scope of the employer ’ s own duty under the relevant statutes, not principles of agency or joint a nd several liability ] .) But other cases have applied a shared

- defense theory to joint employers in certain circumstances. For instance, in Songer v. Dillon Res., Inc. (5th Cir. 2010) 618 F.3d 467, the Circuit Court of Appeals held that an exemption to the Fair Labor Standards Act (FLSA) , invoked by a motor carrier , could be raised in defense by the staff leasing
company that provided truck drivers to the motor carrier. In that case, the trucking companies, with whom the drivers were placed by the staff le asing company, were15

subject to the Motor Carriers Act, which exempted them from the drivers’ claims. Because the staff leasing company was a joint employer, the court held the drivers ’ claims against the staffing agency were also barred because the work t hey performed fell within the Motor Carrier Act exemption to the FLSA under 29 Code of Federal Regulations section 782.2 and title 29 of the United States Code section 213(b) and that the staff leasing company was a joint employer with the trucking compani es. Likewise , cases suggest that where the staffing agency’s employment contract with an employee asserting wage and hour claims were subject to an arbitration agreement, the hospital acting as the nurse plaintiff’s coemployer could demand arbitration, because plaintiff’s claim against the hospital was intimately intertwined with her employment contract with the agency. ( Franklin v. Cmty. Reg'l M ed. Ctr . (9th Cir. 2021) 998 F.3d 867 , 871

- 872, relying on Jarboe v. Hanlees Auto Group (2020) 53 Cal.App.5th 539 .) Similarly, in the present case, plaintiff’s complaint allege s MACT contracted with Medestar for placement of health care providers at MACT f acilities, which subsequently placed her for work at a MACT facility. She signed the contract with Medestar in contemplation of working for MACT. T he liability of MACT wa s exempted by sovereign immunity

. T he work plaintiff performed was for MACT, a cont ractor of IHS , at a tribal facility for the benefit of tribes and tribal members, so it was subject to tribal management and control

. Her work for MACT and Medestar were intimately intertwined.16

On this basis, the trial court’s finding that immunity extend ed to Medestar by virtue of the joint employment relationship is proper. Without any pertinent authority to guide our resolution of this thorny issue cited by either party, we lack any basis on which to hold the trial court erred in extending immunity to Medestar.
2. Whether Medestar’s Answer to the First Amended Complaint Resulted in a Waiver of Tribal Immunity Plaintiff argues that by filing an answer to the complaint, Medestar made a general appearance, forfeiting any claim of immunity. Medestar argues t hat plaintiff forfeited this argument by failing to preserve it in the trial court. We conclude the issue was forfeited. We begin by pointing out that a general appearance waives challenges to in
personam jurisdiction. “ A general appearance by a party is equivalent to personal service of summons on such party. ” (Code Civ. Proc., § 410.50, subd. (a).) “ A California defendant can preserve objections to personal jurisdiction only by making a special appearance, i.e., an appearance for the sole purpose of objecting to the court ’ s jurisdiction. ” ( In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8.) Sovereign immunity is jurisdictional in nature. ( In re P rairie Island Dakota Sioux (8th Cir. 1994) 21 F.3d 302, 304.) The jurisdictional nature o f tribal immunity has never been definitively settled. ( Miami Nation , supra , 2 Cal.5th at p. 243.) Some United States Supreme Court cases indicate that tribal immunity is jurisdictional in a general sense, but they have not elaborated further. (See Puya llup Tribe, Inc. v. Game Dept. (1977) 43317

U.S. 165 , 172 [absent abrogation or waiver, “ a state court may not exercise jurisdiction over a recognized Indian tribe”]; Bay Mills , supra , 572 U.S. at p. 820 , fn. 2 [although tribe was immune from suit, court had subject matter jurisdiction pursuant to the Indian Gaming Regulatory Act].)
H owever, sovereign immunity is not of the same character as subject matter jurisdiction. ( Miami Nation, supra, 2 Cal.5th at p.243

. ) Unlike subject matter jurisdiction, tribal i mmunity may also be waived, but unlike in personam or personal jurisdiction, “a tribe ’ s waiver must be ‘clear.’” ( Miami Nation , supra , 2 Cal.5th at p. 235, quoting C & L Enterprises, Inc. v. Citizen Band Potawat omi Indian Tribe of Okla

. , supra , 532 U.S. at p. 418.) In the present case, there was no clear waiver of immunity by either the tribe or Medestar, which had raised immunity as one of its affirmative defenses. In this respect, plaintiff’s failure to raise this issue in the trial court has put the parties and the court at a disadvantage. “ An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below. ” ( Children ’ s Hosp ital and Medical Center v. Bont á (2002) 97 Cal.App.4th 740, 776.) This is so because “ [i]t is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial. ” ( Ibid. ) Plaintiff argues in her reply brief that there are reasons to doubt the wisdom of extending tribal immunity to off

- reservation commercial activity because doing so may go ‘beyond what is needed to safeguard tribal self

- governance , ’ citing Kiowa , sup r a , 52318

U.S. at p. 758 .) The key point here is that the “activity” involved in this case was the provision of health care services, which occurred on tribal land, at a tribal facility, for the benefit of the tribes and tribal members. Because the claim ra ised here was not presented in the trial court, Medestar was deprived of an opportunity to produce evidence or argument to support the continued viability of its affirmative defense of sovereign immunity following its general
appearance. Additionally, due to plaintiff’s failure to timely raise the issue, Medestar was deprived of the opportunity to demonstrate how it, as joint employer, was an affiliated entity, entitled to the protection of the sovereign immunity.
D ISPOSITION The judgment is affirmed. Med estar and MACT are entitled to costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:
MILLER J. RAPHAEL J.