C.A. Revives Suit Against Lawyer Who Sanctioned Casino Raid

Tuesday, October 30, 2018

Page 1

C.A. Revives Suit Against Lawyer Who Sanctioned Casino Raid

By a MetNews Staff Writer

The First District Court of Appeal has reinstated a lawsuit by two men against one of the lawyers who they claim tricked them into believing they were police officers for an Indian tribe and encouraged them to conduct a raid on a casino’s offices.

The raid resulted in 29 felony charges against plaintiffs Shawn Fernandez and Brian Auchenbach, two military veterans who believed they had been lawfully hired to the police force of the Tribe of the Picayune Rancheria of Chukchansi Indians. In fact, the two had been hired by a faction of the tribe seeking to oust their rivals who controlled the casino.

Lawyers Lester Marston and Mark Levitan were allegedly present at several meetings with the ostensible police force, and assured the men that they were immune from any prosecution and were properly sworn peace officers, deputized under the Bureau of Indian Affairs (“BIA”). Fernandez and Auchenbach, along with others, stormed the offices of the Chukchansi Gold Resort & Casino in Coarsegold, thinking they were removing unlawful trespassers.

After being charged, they sued Marston and Levitan, along with the Ukiah firm of Rapport & Marston, alleging legal malpractice, negligence and fraud.

Motion to Strike

Mendocino Superior Court Judge Jeanine B. Nadel granted the defendants’ anti-SLAPP motion. She found that the gravamen of the complaint was the defendants’ conduct in connection with a BIA administrative proceeding and a case brought by Wells Fargo concerning the casino’s financing.

In his declaration opposing the motion, Levitan wrote:

“As a result of the leadership dispute, the Tribe had become ensnared in litigation relating to its hotel and casino....Further, the tribal leadership dispute was the subject of ongoing administrative proceedings before the Bureau of Indian Affairs, a federal agency. Indeed, I was retained to provide counsel regarding this leadership dispute and the related proceedings.

“…I provided advice to my client regarding the ongoing leadership dispute and my client’s ability to take steps to protect the Tribe’s interests vis-à-vis the Casino.”

Judgment Reversed

Justice Therese M. Stewart of Div. One wrote the unpublished opinion, filed Friday, reversing Nadel’s order as to the claims against Marston. (Levitan settled with the plaintiffs while the appeal was pending.)

Stewart wrote:

“The ‘principal thrust or gravamen’ of this lawsuit…is defendants’ alleged false assurances that plaintiffs had no risk of facing arrest or criminal prosecution as a result of participating in the armed casino raid. Those alleged assurances were not shown to have any connection to a substantive issue involved in any pending administrative or judicial proceeding….The two proceedings defendants pointed to in the trial court concerned totally different issues….

“Even if defendants had shown, moreover, that their alleged assurances about the legality of the casino raid related to a substantive issue under review in either of those proceedings (or in any other proceeding, for that matter), that alone would not have satisfied [Code of Civil Procedure §425.16] subdivision (e)(2) in any event, because defendants also were required to show their alleged statements were ‘directed to persons having some interest in’ the official proceedings….Defendants did not show this either. As far as we can tell, these plaintiffs were utterly indifferent to the outcome of either the BIA proceedings or the New York casino financing case.”

The case is Fernandez v. Marston, A149995.

The October 2014 armed raid on the casino prompted the state to file a request for a permanent injunction against the tribe. U.S. District Judge Lawrence J. O’Neill of the Eastern District of California issued a temporary restraining order closing the casino.

In 2015, the tribe elected a new council and reached a settlement with the state under which it was permitted to reopen the casino. It is permanently barred, however, from deploying armed police at the casino, and must maintain a 1000-yard weapons-free zone around the building.

That same year, Auchenbach, Fernandez, and three other men involved in the raid pled guilty to misdemeanor trespassing as part of a plea deal.

Tex McDonald, the purported tribal leader who led the faction that ordered the raid, was sentenced to 485 days in prison for his role in the caper.

—Judicial Council

Attorney Lester J. Marston, chief judge of the Blue Lake Rancheria Tribal Court, explains concepts such as tribal sovereignty. The First District Court of Appeal on Friday reinstated an action against him for malpractice, negligence and fraud by two men who were criminally charged as the result of actions they took, allegedly on advice of Marston and another attorney that they were tribal police officers.