IN THE COURT OF APPEAL

SECOND APPELLATE DISTRICT, STATE OF CALIFORNIA

DIVISION SIX

GENE STROUD,

Plaintiff and Appellant,

Vs.

TONY ARMENTA,

Defendant and Respondent.

No. 1249954

03-28-08

B-206934

APPEAL FROM THE SUPERIOR COURT OF SANTA BARBARA COUNTY'S

DISMISSAL ORDER

THE HONORABLE RODNEY S. MELVILLE, ASSIGNED JUDGE PRESIDING

APPELLANT'S REPLY BRIEF

JAMES E. MARINO

Attorney at Law

1026 Camino del Rio

Santa Barbara, CA 93110

(805) 967-5141

IN THE COURTOF APPEAL

SECONDAPPELLATE DISTRICT, STATE OF CALIFORNIA

DIVISION SIX

GENE STROUD,

Plaintiff and Appellant,

Vs.

TONY ARMENTA,

Defendant and Respondent.

No. 124995403-28-08B-206934

APPEAL FROMTHE SUPERIORCOURTOF SANTA BARBARACOUNTY'S

DISMISSAL ORDER

THE HONORABLERODNEYS. MELVILLE, ASSIGNED JUDGE PRESIDING

NOTICE OF ERRATA

IN APPEALLANT'S REPLY BRIEF

JAMES E. MARINO

Attorney at Law

1026 Camino del Rio

Santa Barbara, CA 93110

(805) 967-5141

Upon rereading Appellant,s Reply Brief, Appellant's counsel noted an important

typographical error or printers errata.

On page 8 of the brief is an inset and quote from the declaration of Respondent

Tony Armenta, filed in the trial court below [CT 00020].

The quoted paragraph 6. in Appellants Reply Brief reads incorrectly as follows,

the error is highlighted in bold italic.

"...I did ... "no.____t"... provide information about Mr. Stroud's prior

employment with the casino in response to those inquiries that was

accurate to the best of my recollection at the time."

The word "not" was incorrectly included. It did not appear in the original and as

read in the brief it changes the entire meaning of the sentence quoted.

The item 6. should be read by the court as excluding the word "not" erroneously

included there.

RestSec_t lly submitted,

• f' Jam6s E. Marino

PROOF OF SERVICE

I am, and was at the time of the service hereinafter

mentioned, over 18 years of age and not a party to the

above-entitled action. My business address is 1026 Camino

del Rio, Santa Barbara, California 93110. I am employed in

the County of Santa Barbara.

On 12 February 2009, I served the within NOTICE OF

ERRATA IN APPELLANT'S REPLY BRIEF, on the following, by

placing a true copy in the United States Mail, postage

prepaid and addressed as follows:

Lawrence R. Stidham

Stidham Law Offices

210 5 TM Street

Ramona, CA 92065

Glenn M. Feldman

Mariscal Weeks McIntyre & Friedlander, P.A.

2901 N. Central Ave., Suite 200

Phoenix, AZ 85012-2705

The Honorable Rodney J. 'Melville, Judge

Superior Court of Santa Barbara County

Santa Maria - Cook Division

312 E. Cook Street

Santa Maria, CA 93456-5369

California Supreme Court

350 McAllister St.

San Francisco, CA 94102

(4 copies)

I declare under penalty of perjury under the laws of

the State of California that the foregoing istrue and

correct, and that this decla_ tion was executed on 12

February 2009.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Cal Rules of Court, Rule 8.208)

There are no interested entities or persons to list in this certificate (Cal. Rules of

Court, rule 8.208(d)(3)).

Dated: 11 February 2009

es E. Marino

TABLE OF CONTENTS

Tableof Authorities...................................................................

Pa_kgeNo.

ii

Restatement of Facts ....................................................................

Summary of Arguments in Reply ....................................................

Discussion

A. APPELLANT DID NOT SUE THE TRIBE AND

IT'S IMMUNITY IS NOT AN ISSUE HERE .......................

B. RESPONDENT TONY ARMENTA IS NOT ENTITLED

TO CLAIM THE IMMUNITY OF THE TRIBE IN DEFENSE

C.

OF HIS UNAUTHORIZED TORTUOUS CONDUCT ...............

THE COURT ERRED OR ABUSED ITS DISCRETION IN

DISMISSING APPELLANTS CASE BELOW OUT OF HAND

WITHOUT ANY ADEQUATE FACTUAL DETERMINATIONAS TO WHETHER THE ALLEGATIONS IN PLAINTIFF'S

VERIFIED COMPLAINT WERE TRUE AND HOW

RESPONDENTS CONDUCT IN COMMITTING SEVERAL

INTENTIONAL TORTS COULD POSSIBLY BE PROTECTED

BY THE TRIBE'S COMMON-LAW LEGAL IMMUNITY .....

Conclusion ................................................................................

11

13

Certificate of Word Count .............................................................

Proof of Service ..........................................................................

TABLE OFAUTHORITIES

U.S.S eme Court Cases

Bryan v. Itasca County, Minn.

[1976] 426 U.S. 373 ............... ....................................................

Kiowa Tribe of Oklahoma v. Manufacturing Technologies. Inc.

[1998] 523 U.S. 751 ...................................................... : ...............

Kernats v. O'Sullivan

[1972] 35 F.3d 117l .....................................................................

Larsen v. Domestic & Foreign Connnerce Corp.

[1949] 337 U.S. 682 ......................................................................

Page

4,6,11

3,7,12

.

9,11

Other Federal Cases:

Davis V. Coyhis

[1994] F.Supp ...........................................................................

Leblanc v. Shirley [USDC E.Tex 1984]

598 F.Supp. 747 ...........................................................................

4,6,8

6,8

California Supreme Court Cases:

[1999] 51 Cal.3d 1140 ..................................................................... 11

Other California Cases:

Lawrence v. Barona Valley Ranch Resort and Casino '

[2007] 153 Cal.App. 4 th 1364 ....................................................... i .... 5, 9

Lewis Ave. Parent Teachers Assoc. v. Hussey

[1967] 250 Cal.App.2d 232 .............................................................. 4,6,7,8

Middleton Rancheria v. Workers Comp. Appeals Board

[1998] 60 Cal.App. 4 th 1340 .............................................................. 4, 6

J_J_

STATUTES

Federal

Federal Rules of Civil Procedure 12(b) ............................................... :.

25 U.S.C. 2701 ........................................................................

28 U.S.C. 1360 ........................................................................

California Statutes

Code of Civil Procedure 430. l 0 (a) .............................. ..... , .............

Code of Civil Procedure 430.30 ................................... ; ................

Code of Civil Procedure 472 (C) .....................................................

6,11

8

4,5,11

7

11

10

iil

RESTATEMENT OF FACTS

The facts previously set out in Appellants Opening Brief are sufficient,

straightforward and alleged and contained in Appellant's verified Complaint below.

00001-00008]. Appellant makes no further statement of facts here.

[CT

Ill. SUMMARY OF ARGUMENTS 1N REPLY

A. APPELLANT HAS NOT SUED AN INDIAN TRIBE IN THIS CASE.

APPELLANT HAS THE RIGHT TO SUE RESPONDENT, AN INDIVIDUAL

TORTFEASOR, IN STATE COURT NOTWITHSTANDING THE FACT

RESPONDENT IS A MEMBER OF AN INDIAN TRIBE.

B. THE ACTIONS OF RESPONDENT IN MAKING COMPLETELY FALSE,

TORTUOUS AND FABRICATED STATEMENTS TO OUTSIDE NON-INDIANS,

WHO WERE NOT TRIBAL OFFICERS OR OFFICIALS AND FOR THE IMPROPER

REASONS ALLEGED IN PLAINTIFF'S VERIFIED COMPLAINT ARE

ACTIONABLE IN STATE COURT AS ULTRA VIRES ACTS NOTWITHSTANDING

THE TORTS WERE COMMITTED WHILE RESPONDENT WAS ON INDIAN

LANDS OR WITHIN AN INDIAN TRIBALLY OWNED BUSINESS.

C. IT WAS ERROR AND AN ABUSE OF DISCRETION AND DENIAL OF

DUE PROCESS OF LAW FOR THE TRIAL COURT TO HAVE DISMISSED

APPELLANT'S COMPLAINT OUT OF HAND ON THE BASIS THAT

RESPONDENT WAS AUTOMATICALLY CLOAKED WITH TRIBAL LEGAL

IMMUNITY WHEN THERE WAS NO EVIDENTIARY INQUIRY AND THE VAGUE

DECLARATION OF RESPONDENT DID NOT DENY ANY OF THE WELL PLEAD

AND VERIFIED ALLEGATIONS IN APPELLANT'S COMPLAINT BELOW.

DISCUSSION

A. APPELLANT DID NOT SUE THE CHUMASH INDIAN TRIBE OR ITS

BUSINESS AND IT'S IMMUNITY IS NOT AN ISSUE HERE ON THIS APPEAL

Respondents in their brief, spend a great deal of time discussing the immunity

• from unconsented lawsuits enjoyed by Indian tribe in the absence of a Congressional Act

or a waiver of that immunity from suit. [Respondents Brief pages 5-6 and 11.]

Appellant does not dispute this common law immunity doctrine established by

case law and which, although disfavored in the modern day public business context

where Indian tribes own and operate large businesses open to the public, hire non-Indian

workers and negatively impact nearby non-Indian communities, it is still nevertheless the

law of the land. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. [1998]

532 U.S. 751, 118 S.Ct. 1700.

As pointed out in Appellant's Opening Brief that Indian tribal immunity is not absolute

and the modem view is where an individual Indian is sued, the court must analyze each

case to determine if the doctrine is to be applied and available as a defense or not. See

Davids v. Coyhis [1994] 869 F.Supp. 1409 discussed infra. Respondents cite two cases

involving the negligence of tribal employees and assert because negligence is in the legal

family of"torts" then all cases involving torts committed by an agent or employee of an

immune tribe are protected by a complete legal immunity. That is not the law.

In light of the holding and dicta of Kiowa, supra, our courts should not seek to

expand this legal immunity doctrine further and beyond the already excessively broad

limits of it.

To reiterate,Appellantdoesnotchallengethetribe's generalright to immunityfrom

unconsentedstatecourtcivil suit. Appellantdid notsuethetribeanddoesnotassertany

vicariousliability of thetribe for Respondent'sconductdiscussedhereon thisappeal,

consequentlyAppellantwill notargueor discussit further.

B. RESPONDENT TONY ARMENTA IS NOT ENTITLED TO CLAIM

THE IMMUNITY OF THE TRIBE IN DEFENSE OF HIS UNAUTHORIZED

TORTUOUS CONDUCT SIMPLY BECAUSE HE WAS A TRIBAL EMPLOYEE.

The defense of sovereign immunity is not available to the agent or employee of a

sovereign when in the course of those duties he engages in ultra vires acts.

California State courts and 5 other state court systems have civil jurisdiction over

civil disputes arising in Indian country between an individual non-Indian Plaintiff such as

Appellant and an individual named defendant such as Respondent. 28 U.S.C. 1360(a).

See also Bryan v. Itasca County, Minn. [1976] 426 U.S. 373, 48 L.Ed.2d 710 96 S.Ct.

2102 and Davids v. Coyhis [USDC Wisc. 1994] 869 F.Supp. 1409 and Middletown

Rancheria v. Workers Comp Appeals Board [1998] 60 Cal.App. 4 th 1340, 1349-1350 71

Cal.Rptr. 2d 105.

Respondent filed a verified complaint in state court in which he factually alleged

under oath that Respondent committed several actionable intentional'torts. [CT 0001-

00012]. Once served with a summons and complaint, Respondent Tony Armenta, by and

through the tribe's attorneys, made a motion to Quash service of surmnons and sought to

dismiss Appellants Complaint [CT 00014-00030] asserting in that motion that the court

•

lacked jurisdiction over the subject matter I of the complaint by virtue of the defense that

the legal immunity of the tribe barred a suit against Respondent for his tortuous conduct.

In support of that motion Respondent Tony Annenta submitted a declaration and

one from his brother the tribal Chairman, Vince Armenta. z

Respondent, asserted as authority for the proposition the mere making of the

motion to dismiss shifts the burden onto Plaintiff to establish jurisdiction, and they cite

the case of Lawrence v. Barona Valley Ranch Resort and Casino [App. 4 th Dist. 2007]

153 Cal.App. 4 th 1364. That case does not stand for that proposition at all and is

inapplicable here.

In that case, citing the federal case of Garcia v. Akwesasne Housing Authority [2d

Circ. 2001] 268 F3d 76, 84 the state Appellant court found as follows:

"On a tribe's motion invoking sovereign immunity to dismiss for lack of

subject matter jurisdiction, the plaintiff bears the burden of proving by a

preponderance of evidence that jurisdiction exists .... In the absence of

conflicting extrinsic evidence relevant to the issue, the question of

whether a court has subject matter jurisdiction over an action against an

Indian tribe is a question of law subject to our de novo _'eview

further citations omitted).

Unlike this case that case did not involve a suit against an individual Indian for

intentional torts. To the contrary it was a suit brought against the tribally owned business

for negligent injuries sustained by Plaintiff Appellants. The Plaintiffs had advanced the

theory that the broad waiver of liability contained in the class III gambling compact

1Although the Motion was styled as one to Quash service and dismiss, the Motion asserted in substance

that the court had no subject matter jurisdiction over an unconsented suit against the tribe.2 Chairman Armenta also filed a declaration in support of the dismissal motion. [CT 00015-00018]

between the Barona tribe and the State constituted a waiver of immunity from their suit. 3

That case is manifestly different than this case and does not apply.

Any individual citizen of California can sue an individual Indian for torts arising

on Indian lands and State courts have jurisdiction over all such suits by federal law. See

Title 28 U.S.C. section 1360(a). That statute provides:

"In civil disputes between Individual non-Indians and individual

Indians arising in Indian County within California, then the State Courts of

California shall have civil jurisdiction over such causes of action and those

civil laws of such state that are of general application to private persons or

private property shall have the same force and effect within such Indian

Country as they have elsewhere within the state."

Those civil laws include both substantive and procedural due process statutes as

well as all common-law/case law standards.

See also Brian v. Itasca County [1976] 426 U.S. 373 supra.

The fact that the Bryan v. Itasca Count,/case involved a tax issue is irrelevant to

the principal involved in that case and also to be decided on this appeal. That is the right

of an individual non-Indian to sue an individual Indian in State court using its civil

jurisdiction. See also the discussion in Middleton Rancheria v. Workers Comp. Appeals

Bd. 60 Cal.App. 4 th supra at pages 1349-1350]

Contrary to Respondents arguments, where a plaintiff has filed a verified

complaint and the Respondent has not denied those allegations the burden is upon

Respondent to show facts entitling him to an immunity defense belonging to the Indian

tribe. The Court must take the allegations of Appellant/Plaintiff in his complaint below as

true for purposes of a dismissal motion.

a The Bar0na compact also required any suit for negligent injury to be brought in tribal court.

See Davids v. Coyhis 869 F.Supp. 1409 infra. Le Blanc v. Shirley [USDC E. Dist.

Tex. 1984] 869 F.Supp. 1410, citing internally the case ofKernats v. O'Sullivan 35 F.3d

1171, 1175. See also Federal Rules of Civil Procedure,Rule 12(b)(6) establishing

grounds for dismissal and the duty of the trial cou_ to at least weigh evidence

preliminarily before dismissing a complaint.

This is also consistent with California law for both Demurrers and Motions to

Dismiss. Code of Civil Procedure 430.10(a). The alleged lack of

jurisdiction based on the extension of Indian tribal immunity to Respondent does not

appear on the face of the complaint and is also demurable under section 430.30. On

appeal in State Court from a dismissal the reviewing Court must accept allegations of

complaint or cross-complaint that was dismissed as being true. Lewis Ave. Parent

Teachers Assoc. v. Hussey [1967 1st Dist.] 250 Cal.App.2d 232, 58 C.R. 499_

Neither the declaration of Vincent Armenta or that of the Respondent refute any

of the verified allegations Resp0ndent/Plaintiff alleged in his complaint. The declaration

of Vincent Armenta apparently was submitted for the sole purpose of establishing that

Respondent used to work for the tribe. In his declaration Respondent's entire denial of

verified facts consisted of the following brief statement:

J

"5. As a part of my official duties at the Casino, from time to time I had

contact with officials from the California Gaming Control Commission.

Although it has been many years, I do recall that several years after Gene

Stroud was no longer employed at the casino, State Gaming Commission

investigators came to the casino on one or more occasions and interviewed

me concerning Mr. Stroud's prior employment as part of a state licensing

investigation. I recall at that time, due to the fact that the casino had

recently moved into a new facility, we were unable to locate Mr. Stroud!sfile."

7

I

6. Although I do not recallthe particulars of those conversations due to

the passage of many years, in response to inquiries that were made by

State investigators, I did not provide information about Mr. Stroud's prior

employment at the casino in response to those inquiries that was accurate

to the best of my recollection at the time." [CT 00020]

Neither of these two vague declarations submitted established any specific duties or

description of duties of a card room table game supervisor or what efforts were made to

locate Appellant's personnel file, or why the investigators were speaking with

Respondent instead of an officer of the security department or the tribal Gaming

Commission which is the official body charged with such responsibility by the Indian

Gaming and Regulatory Act 25_USC 2701-2710(d).

Besides the failure to identify Respondent's actual duties the declaration he submitied

below did not deny any of the specific material allegations of Appellant/Plaintiff's

verified complaint.

As set out above for purposes of determining whether or not the Respondent was

entitled to invoke the immunity of the tribe in defense of his tortuous conduct and to "

support a complete dismissal of Plaintiff's case the trial court must first treat the

allegations of Appellant's verified complaint as true. See Davids v. Co,this 869 F.Supp.-.

1409 su_.__2La_.

The court of appeals must do the same on appeal, Lewis Ave.'Parent Teachers Assoc. v.

Hussev 250 Cal.App.2d 232, supra.

Respondent repeatedly asserts on appeal as he did below, that the vague

assertions in Respondents Declaration submitted in support of their Motion to Dismiss

were uncontradicted. To the contrary, the allegations in Plaintiff's Complaint are all

verifiedandthedeclarationsof theRespondentandhisbrotherdonotcontradictthose

specificverifiedallegations.

For anindividual to beentitledto invokethecloakof tribal imnmnity for

intentionaltortuousactsthe individual Respondent/Defendantmustdemonstratemore

thanthefact theywereemployedby,orworking for thesovereignatthetimeof the

tortuousconduct.Theymustdemonstratethatthetortswereareasonableexpectationor

evenapossibilityarisingout of tl_edutiesof their position.

Respondentsbrief dismissesmoreor lessout of hand,theentireline of crises

characterizedby Larsenv. Domestic and Foreign Commerce Corporation 337 U.S. 682

with the terse remark that Larsen was merely a constitutional case.

As discussed by the court and pointed out in the concurring and dissenting

opinions of Justices Frankfurther and Burton, there are four categories of ultra vires acts

of an agent or officer of a sovereign which can defeat the defense that they are protected

by the immunity of the sovereign..They were set out in Larsen supra, as follows:

"Our decisions fall under these heads:

(1) Cases in which the plaintiff seeks an interest in property which

concededly even under the allegations of the complaint, belongs to the

government, or calls for an assertion of what is unquestionably official

authority,

(2) Cases in which action to the legal detriment of a Plaintiff is taken by

an official justifying his action under an unconstitutional statute.

(3) Cases in which the plaintiff suffers a legal detriment through action

of an officer who has exceeded his statutory authority,

(4) Cases in which an officer seeks shelter behind statutory authority or

some other sovereign command for the commission of a common-lawtort.

It is these latter two categories of ultra vires acts of an agent that are involved in

this appeal.

Undoubtedly any employee of the tribe's gambling casino could be approached

by investigators of the State Gambling Control Commission in the course of a routine

background investigation of a proposed licensee although the tribal security department

and tribal gaming commission or perhaps even the personnel department would seem far

more appropriate for such an inquiry. Such a routine background interview, however,

does not permit the person contacted to report completely false and defamatory

statements, particularly statements that were defamatory per se and highly damaging such

as to state that Appellant Stroud was suspected of theft, when that never occurred.

As set out earlier, Respondents statement in his declaration below that the

statements he made "were accurate to the best of his recollection" were not denials of the

verified material allegations in Appellant/Plaintiff's complaint and do not demonstrate

any entitlement to make such statements as were made.

When faced with a factual question concerning whether obviously tortuous conduct is

nevertheless somehow sought to be immunized by the agent or officers using the

immunity of a sovereign employer the trial court is duty bound to conduct, at the least,

some kind of preliminary evidentiary hearing meeting minimum due process standards

before dismissing or barring Appellant/Plaintiffs complaint.

In the present case the trial court conducted no evidentiary hearing but merely

dismissed Plaintiff Appellant's complaint out of lland based apparently upon the vague

10

declarationof Respondentandwithout anyopportunityfor any forumin whicha

preliminaryevidentiaryhearingcouldbeconducted,andwithout anyopportunityto

conductevensomesimplediscoveryor theopportunitytoamendtheexistingcomplaint

pursuantto 472(c) C.C.P.su__Rp_ra.This is acleardenialof minimumdueprocessof law in

- Constitution and the California Constitution as set out in

Appellant's Opening Brief.

It is equally clear that federal law provides tha t, when a dispute or lawsuit arises

in Indian Country between an Indian and a non-Indian (not a tribe), the State courts have

jurisdiction over that dispute by federal law, Title 28 U.S.C. 1360 and they are to apply

state substantive and procedural law. In short, in the event of such a lawsuit the State

court is empowered and required to make a real and meaningful factual determination to

determine not only if Respondent in this case was working for a sovereign entity entitled

to immunity from lawsuit at the time of the tortuous conduct but also whether or not the

torts committed were authorized and/or were within the ostensible and reasonable scope

of that authority.

C. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION-

BY DISMISSING APPEALLANT'S COMPLAINT BELOW WITHUT ANY

ADEQUATE FACTUAL DETERMINATION THAT THE RESPONDENT

]_STABLISHED ANY RIGHT TO INVOKE THE IMMUNITY OF THE TRIBE AS A

DEFENSE TO A SUIT BASED UPON HIS INTENTIONAL TORTS

California recognizes that an individual Indian can be sued when they commit an

Unauthorized intentional tort notwithstanding it was committed while they were

11

employedby an Indiantribewith immunity. SeeBoisclair v. Superior Court [1999] 51

Cal.3d 1140.

In effect making the well reasoned Larsen doctrine s_ applicable to Indian

tribal agents and employees who commit unauthorized intentional torts in the course of

their duties.

In that case the Supreme Court said:

"(10) Although Indian tribes enjoy broad sovereign immunity from

lawsuits, the immunity of Indian tribal officials, such as these defendants,

is more limited. (See Santa Clara Pueblo v._Martinez (1978) 436 U.S. 49,

59 [56 L.Ed.2d 106, 115-116, 98 S.Ct. 1670] [tribal officials may be sued

for violation of civil rights although the tribes themselves are immune].)

In general, the agent of a sovereign may be held liable when he acts "'in

excess of his authority or under an authority not validly conferred.'"@arson v. Domestic & Foreign Corp. (1949) 337 U.S. 682,691 [93 L.Ed.

1628, 1636, 69 S.Ct. 1457].) The commission of a tortuous act is not per

se exempt from immunity. '[I]f the actions of an officer do not conflict

with the terms of his valid statutory authority, then they are actions of the

sovereign, whether or not they are tortuous under general law .... " (Id. at

p. 695 [93 L.Ed. at p. 1639].) This general principle of sovereign

immunity has been applied to Indian sovereign immunity. (See, e.g.,

Tenneco Oil v. Sac & Fox Tribe of Indians of Okl. (10 th Cir. 1984) 725

F.2d 572, 574.)"

Any statutory duty applicable here would be California State laws prohibiting the

giving of false reports or false and defamatory information to California State

investigators f'or the purposes of knowingly injuring and damaging Appellant.

Put simply an employee of an Indian casino or business is not entitled to do or say

whatever they want and claim they have absolute immunity to do so.

Such an interpretation of the law would result in a "blank check" for tortuous •

conduct as long as the tortfeasor could somehow connect it to their job or simply claim a

blanketimmunityor in reality an "impunity" from any lawsuitevenwhentheir conduct

couldnotpossiblyconstituteanypartof theirjob duties.

13

IV. CONCLUSION

Appellant has not sued the tribe. Appellant as an individual citizen of California

sued Respondent an Individual Indian for intentional and knowing tortuous conduct.

It is not a defense and a bar to such suit that at the time the intentional torts

occurred Respondent was employed by a business owned by an Indian tribe entitled to

the defense of immunity from unconsented lawsuits.

The trial court committed error or abuse of discretion in dismissing, out of hand,

Appellants complaint based on the vague declarations which did not contradict

Appellants verified allegations in his complaint.

The trial court should have at least conducted a preliminary evidentiary hearing to

determine Whether the tortuous conduct of Respondent was authorized and actually

within the scope of any. duties and whether such ultra vires conduct could ever be part of

his "authorized duties."

P('_t fully submitted.

esE. Marino

14

CERTIFICATE OF WORD COUNT

I certify that the Microsoft Word software program used to compose and print this

document contains, exclusive of the caption, tables, certificate and proof of service,

approximately 3166 words. /J_ es_E'_ _/4_'e[,q • .,,.._

Date: 11 February 2009

PROOF OF SERVICE

I am, and was at the time of the service hereinafter

mentioned, over 18 years of age and not a party to the

above-entitled action. My business address is 1026 Camino

del Rio, Santa Barbara, California 93110. I am employed in

the County of Santa Barbara.

On i0 February 2009, I served the within APPELLANT'S

REPLY BRIEF, on the following, by placing a true copy in the

United States Mail, postage prepaid and addressed as

follows:

Lawrence R. Stidham

Stidham Law Offices

210 5 th Street

Ramona, CA 92065

Glenn M. Feldman

Mariscal Weeks McIntyre & Friedlander, P.A.

2901 N. Central Ave., Suite 200

Phoenix, AZ 85012-2705

The Honorable Rodney J. Melville, Judge

Superior Court of Santa Barbara County

Santa Maria - Cook Division

312 E. Cook Street

Santa Maria, CA 93456-5369

California Supreme Court

350 McAliister St.

San Francisco, CA 94102

(4 copies)

I declare under penalty of perjury under the laws of

the State of California that the foregoing is true and

correct, and that this de,

February 2009. ;_

_aration was executed on i0

_/ ames E. Marino