1

Filed 2/28/24 Windham v. Medestar Locum Tenens 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.,

Defendants and Respondents.

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 Board, Inc. (MACT), a health care consortium of two federally recognized tribes, 

as 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 court. 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 immunity by filing an 

answer to the complaint. We affirm.

BACKGROUND

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 the Jackson Rancheria of Me-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 health status of the American Indian Native population in its 

service area, comprising four counties that give MACT its name: Mariposa, Amador, 

Calaveras, and Tuolumne.
3

MACT is a nonprofit corporation formed in 1979. It is governed by a board of 

directors comprising three individuals who are: (1) members of federally recognized 

Native American tribes; and (2) appointed by the leadership of those tribes and an 

advisory council 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 board and advisory council

are active in MACT’s administration and management.

MACT received federal funds as a subcontractor of the California Rural Indian 

Health Board from 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, MACT renegotiated its ISDEAA 

agreement with IHS. Under these agreements, MACT receives 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 

MACT 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 arose 
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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, Windham alleges that Medestar and MACT were her 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 

sovereign 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-Wuk Indians of 

California) and the Ione Band of Miwok Indians of California as Federally Registered 

Indian Tribes.

Attached to the motion documents were the articles of incorporation and the 

corporate bylaws of MACT reflects 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 

aforementioned population.” Additionally, the bylaws included the purpose of

supporting 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 first amended complaint (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 Federally Recognized Indian Tribes in the 

service area, who may apply for membership after participating as an advisory member 

for no less than three years. The bylaws 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 tribal resolution by the Jackson 

Rancheria Band of Miwuk Indians designating MACT as a tribal organization, and 

authorizing MACT to contract with IHS for comprehensive health services to its 

members and other eligible Indians in the service area. A similar tribal resolution by the 

Ione Band of Miwok Indians also designated MACT as the local care provider of 

comprehensive health care and related services. This resolution named an official tribal 

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 Indian 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 was heard on November 22, 2021, at which time the court took the 

matters of the motion as well as Medestar’s joinder under submission. On December 15, 

2021, the court issued its rulings, granting both MACT’s motion and Medestar’s joinder, 
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granting MACT’s request for judicial notice, overruling plaintiff’s evidentiary objections 

to MACT’s declarations, 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 Congress has authorized it, or the tribe has waived immunity. The court found that 

a tribe’s consent cannot be implied and that the asserted waiver at issue was an agreement 

to arbitrate included in a contract between MACT and Medestar, which was not a clear 

consent to suit by the tribes. Further, 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.

DISCUSSION

1. Whether Medestar and MACT Are “Arms 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. Background of Tribal Immunity

Indian tribes are “‘domestic dependent nations’” that exercise ‘“inherent sovereign 

authority.”’ (Michigan v. Bay Mills Indian Community (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. 756.)

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 

congressional 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 subentities of the 
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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 

Court (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 

chartered 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 

courts 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 

pp. 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 

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

Cher-Ae Heights Indian Community of Trinidad Rancheria, supra, 60 Cal.App.5th at 

p. 216, citing Miami Nation, supra, 2 Cal.5th at p. 250.)
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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 addressed the situation in which 

two federally recognized tribes created affiliated business entities, and those 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. However, Miami Nation concerned offreservation 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 test 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: “whether 
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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-forprofit corporation, for the express purpose of providing health care services to tribal 

members. In addition, its formation was accomplished by means of a tribal resolution, 

and its board consists of tribal members.

(2) The resolution by the Jackson Rancheria Band of Miwuk Indians designated 

MACT as a tribal organization, authorizing MACT to contract with IHS for 

comprehensive health services to its members and other eligible Indians in the service 

area; the tribal resolution by the Ione Band contains similar provisions, and named an 

official tribal 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 health 

care board and membership in MACT is limited to Federally Recognized Indian Tribes in 

the service area. In this respect, the tribes are not passive participants, as suggested by 
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plaintiff. The declaration of the executive director of MACT established that MACT is 

entirely subject to the oversight 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 providing comprehensive health services to tribal members and other 

eligible Indians in the service area. This was not a commercial agreement, as plaintiff 

described it during oral argument. The nonprofit nature of the health care organization is 

itself a feature distinguishing this case from Miami Nation. Unlike Miami Nation, the 

articles of incorporation and corporate bylaws 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 Project (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 objections at the hearing. At that time, counsel 

for MACT pointed out that the declarant, to whose declaration the relevant documents 

were attached, was the executive director 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 also 
12

overruled by the trial court, do not demonstrate prejudicial error given the matters recited 

in the articles of incorporation and the corporate bylaws that reaffirm 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 Native Americans whose care is paid for by 

the federal government nor 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 not 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. Health 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 The Emergency Medical Treatment and Active Labor Act (42 U.S.C. §1395dd) 

requires any hospital with an emergency department to screen or treat any patient who 

comes to that department. The challenged paragraph in the article of incorporation and 

bylaws simply reflects this congressionally mandated obligation, and, absent other 

evidence to the contrary, does not suggest the possibility that MACT engages in profitmaking 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.
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C. Whether Medestar Is Entitled to Tribal Immunity

Plaintiff also argues the trial court erred in failing to require 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 

language 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 the joint employer theory, by pointing out that she had dismissed MACT on appeal

and was proceeding 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.
14

Schneider Logistics, Inc. (9th Cir. 2021) 859 Fed.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. Living, 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, determining the existence of a joint employer relationship does not 

settle the issue, for Labor Code 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 employers. (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 and 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 leasing company, were 
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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 they 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 companies.

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 Med. 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 alleges MACT contracted with 

Medestar for placement of health care providers at MACT facilities, which subsequently 

placed her for work at a MACT facility. She signed the contract with Medestar in 

contemplation of working for MACT. The liability of MACT was exempted by 

sovereign immunity. The work plaintiff performed was for MACT, a contractor 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.
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On this basis, the trial court’s finding that immunity extended 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 that 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 Prairie Island Dakota Sioux

(8th Cir. 1994) 21 F.3d 302, 304.) The jurisdictional nature of 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 Puyallup Tribe, Inc. v. Game Dept. (1977) 433 
17

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].)

However, 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 immunity 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 Potawatomi 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 Hospital and Medical Center v. Bontá (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, supra, 523 
18

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 raised 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.

DISPOSITION

The judgment is affirmed. Medestar and MACT are entitled to costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

RAPHAEL

J.