Lopez v. Quaempts CA3

Filed 11/29/21 Lopez v. Quaempts CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----

CYNTHIA LOPEZ,

Plaintiff and Appellant, C087445

v. (Super. Ct. No. 34-2017-
00206329-CU-FR-GDS)
ERIC QUAEMPTS et al.,

Defendants and Respondents.

Cynthia Lopez sued the Confederated Tribes of the Umatilla Indian Reservation, a
federally recognized Indian tribe (the Tribe). She also sued Eric Quaempts, the director
of the Tribe’s Department of Natural Resources (the Department), and David Tovey, the
Tribe’s executive director. The lawsuit asserted claims arising from Lopez’s recruitment,
hiring and employment as program manager of the First Foods Policy Program. The trial
court granted defendants’ motion to quash the service of, and to dismiss, the first
amended complaint based on tribal sovereign immunity.
Lopez now contends (1) the Tribe waived its sovereign immunity and was
amenable to suit because it ratified the conduct of Quaempts and Tovey that was outside
the scope of their employment authority; (2) the Tribe’s sovereign immunity did not
protect Quaempts and Tovey from suit because they were sued in their individual
capacities, and Lopez should now be allowed to further amend her complaint to focus her

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allegations on claims against Quaempts and Tovey individually; (3) the trial court erred
in finding that Lopez’s exclusive remedy is in the Federal Tort Claims Act; and (4) Lopez
was not required to exhaust any claims procedure within the Tribe’s Tort Claims Code or
Personnel Policies Manual.
We conclude (1) tribal sovereign immunity protects the Tribe from Lopez’s suit,
and (2) because the first amended complaint as pleaded asserts claims against Quaempts
and Tovey in their official capacities, tribal sovereign immunity also protects them.
Because the first amended complaint is barred, we need not address Lopez’s other claims.
We will affirm the trial court’s order.
BACKGROUND
While Lopez was working and living in Sacramento, employees of the Tribe
informed her of job openings with the Tribe and encouraged her to apply for a position.
One of the positions was for program manager of the Tribe’s First Foods Policy Program
within the Department. The vacancy announcement said the goal of the Department was
to protect, restore and enhance the “first foods” -- water, salmon, deer, cous, and
huckleberry -- for the perpetual benefit of the Tribe.
Although the vacancy announcement described duties for the program manager
position, Quaempts did not disclose that the program and position would be different
from what was described in the vacancy announcement. Lopez would not have applied
for the position had she known the vacancy announcement contained incorrect
information, particularly about staffing and budget.
In reliance on the representations made to her, Lopez moved from Sacramento to
Oregon and worked as the program manager. After completing probation, Lopez
discovered that the budget for the First Foods Policy Program was not as stated in the
vacancy announcement. She talked with Quaempts and Tovey about bringing the
program’s budget and staffing up to what was stated in the vacancy announcement, but
Quaempts and Tovey did not make any changes. An attorney representing Lopez then

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wrote Tovey and the Tribe’s attorney, describing Lopez’s claims of fraud and seeking an
amicable resolution between Lopez and the Tribe.
Lopez subsequently took family medical leave for unrelated injuries. About three
months later, the Tribe informed Lopez that if she would not accept a proposed
separation agreement, she would need to report to work in six days with a letter from her
treating physician clearing her to work. Lopez did not provide such a letter and the Tribe
did not allow her to return to work.
Lopez filed her lawsuit, asserting causes of action for fraud, negligent
misrepresentation, fraudulent misrepresentation, and unfair business practices. Her first
amended complaint asserted the same causes of action. It alleged as follows: The
vacancy announcement contained false information about the budget and staffing for the
First Foods Policy Program, and Quaempts did not inform Lopez that the program
manager position would be substantially different than advertised. Quaempts made false
representations to Lopez about promotion opportunities and benefits. When Lopez asked
to hire more staff, Quaempts said there was no budget for additional staff. He rebuffed
Lopez’s attempts to increase the budget for the First Foods Policy Program and retaliated
against her when she complained that the staffing and budget for the program were not as
represented during her recruitment. Tovey and the Tribe knew of and ratified
Quaempts’s conduct.
Specially appearing, defendants filed a motion to quash the service of, and to
dismiss, the first amended complaint based on tribal sovereign immunity. The trial court
granted the motion.
STANDARD OF REVIEW
Defendants’ motion to quash and dismiss was made pursuant to Code of Civil
Procedure section 418.10, subdivision (a)(1), which provides that a defendant may move
to quash service of the summons based on lack of jurisdiction over the defendant. Tribal
defendants may specially appear and invoke their immunity from suit by using a hybrid

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motion to quash or dismiss. (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1204
(Brown); Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999)
74 Cal.App.4th 1407, 1417-1418 (Great Western Casinos, Inc.).) On such a motion,
the trial court must engage in sufficient pretrial factual and legal determinations to
“ ‘ “satisfy itself of its authority to hear the case” before trial.’ ” (Brown, at p. 1204,
italics omitted; Great Western Casinos, Inc., at p. 1418.)
“ ‘[T]he plaintiff bears the burden of proving by a preponderance of the evidence
that all jurisdictional criteria are met. [Citations.] The burden must be met by competent
evidence in affidavits and authenticated documents; an unverified complaint may not be
considered as supplying the necessary facts.’ [Citation.] ‘In the absence of conflicting
extrinsic evidence relevant to the issue, the question of whether a court has . . .
jurisdiction over an action against an Indian tribe is a question of law subject to our
de novo review.’ [Citation.] But ‘ “ ‘[w]hen the facts giving rise to jurisdiction are
conflicting, the trial court’s factual determinations are reviewed for substantial evidence.
[Citation.] Even then, we review independently the trial court’s conclusions as to the
legal significance of the facts.’ ” ’ [Citation.] We [will] affirm a trial court’s order if
correct on any theory.” (Brown, supra, 17 Cal.App.5th at p. 1203; accord People v.
Miami Nation Enterprises (2016) 2 Cal.5th 222, 242, 250 (Miami Nation Enterprises)
[stating that typically, on a dismissal motion based on sovereign immunity, the plaintiff
bears the burden of proving by a preponderance of evidence that jurisdiction exists,
including that the tribe’s immunity has been abrogated or waived].)
DISCUSSION
I
Lopez contends the Tribe waived its immunity from suit because it ratified the
conduct of Quaempts and Tovey that were outside the scope of their employment
authority.

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 Indian tribes are not amenable to suit brought by the states or individuals unless
there is an unequivocal abrogation of tribal sovereign immunity by Congress or a clear
waiver by the tribe. (Michigan v. Bay Mills Indian Community (2014) 572 U.S. 782, 788-
790 [188 L.Ed.2d 1071] (Michigan); C & L Enterprises, Inc. v. Citizen Band Potawatomi
Indian Tribe (2001) 532 U.S. 411, 418 [149 L.Ed.2d 623] (C & L Enterprises, Inc.);
Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58-59 [56 L.Ed.2d 106] (Santa
Clara Pueblo); Puyallup Tribe, Inc. v. Department of Game (1977) 433 U.S. 165, 170-
173 [53 L.Ed.2d 667].) As the United States Supreme Court has explained, “Indian tribes
are ‘ “domestic dependent nations” ’ that exercise ‘inherent sovereign authority.’
[Citation.] As dependents, the tribes are subject to plenary control by Congress.
[Citation.] And yet they remain ‘separate sovereigns pre-existing the Constitution.’
[Citation.] Thus, unless and ‘until Congress acts, the tribes retain’ their historic
sovereign authority. [Citation.] [¶] Among the core aspects of sovereignty that tribes
possess -- subject, again, to congressional action -- is the ‘common-law immunity from
suit traditionally enjoyed by sovereign powers.’ [Citation.] That immunity, we have
explained, is ‘a necessary corollary to Indian sovereignty and self-governance.’
[Citations.] And the qualified nature of Indian sovereignty modifies that principle only
by placing a tribe’s immunity, like its other governmental powers and attributes, in
Congress’s hands.” (Michigan, at pp. 788-789.)
“[T]ribal immunity is intended to promote the federal policy of tribal self-
governance, which includes economic self-sufficiency, cultural autonomy, and the tribe’s
‘ability to govern itself according to its own laws.’ ” (Miami Nation Enterprises, supra,
2 Cal.5th at p. 245.) “ ‘[S]overeign immunity is not a discretionary doctrine that may be
applied as a remedy depending on the equities of a given situation. [Citation.]’
[Citation.] Rather, it presents a pure jurisdictional question.” (Warburton/Buttner v.
Superior Court (2002) 103 Cal.App.4th 1170, 1182; see Miami Nation Enterprises,
at pp. 243-244.) Moreover, sovereign immunity “ ‘is a matter of federal law and is not

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subject to diminution by the States.’ ” (Michigan, supra, 572 U.S. at p. 789; see Kiowa
Tribe v. Manufacturing Technologies (1998) 523 U.S. 751, 754-755, 758 [140 L.Ed.2d
981] (Kiowa Tribe).)
The United States Supreme Court has applied tribal sovereign immunity to
activities occurring on and off the reservation and to governmental and commercial
activities. (Michigan, supra, 572 U.S. at pp. 797-800; Kiowa Tribe, supra, 523 U.S. at
pp. 754-755, 758; see also Sac & Fox Nation v. Hanson (10th Cir. 1995) 47 F.3d 1061,
1064-1065; In re Greene (9th Cir. 1992) 980 F.2d 590, 591, 596-597; Ameriloan v.
Superior Court (2008) 169 Cal.App.4th 81, 84-85, 89 (Ameriloan).) And courts have
applied tribal sovereign immunity in the employment context. (See, e.g., Pink v. Modoc
Indian Health Project (9th Cir. 1998) 157 F.3d 1185; Tenney v. Iowa Tribe of Kansas
(D. Kan. 2003) 243 F.Supp.2d 1196; Barker v. Menominee Nation Casino (E.D. Wis.
1995) 897 F.Supp. 389.)
Lopez does not point to any applicable Congressional authorization for her
lawsuit. She argues instead that by ratifying Quaempts and Tovey’s actions, the Tribe
adopted the conduct as its own, necessarily accepted any liability that arose from that
conduct, and thereby expressly waived sovereign immunity.
However, Lopez does not cite to a portion of the record supporting her assertion
that the Tribe expressly ratified misconduct by Quaempts and Tovey that was outside the
scope of their employment authority. We do not consider factual assertions made without
citation to the record. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; City of
Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240.) Although the Tribe’s
attorney agreed that the Tribe ratified the acts of recruiting, hiring and interviewing
Lopez, including the creation and posting of the job description, the Tribe did not
stipulate that Quaempts or Tovey committed illegal or improper conduct outside the
scope of their employment authority.

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 In any event, a waiver of tribal sovereign immunity cannot be implied but must be
explicit and unequivocally expressed. (Santa Clara Pueblo, supra, 436 U.S. at pp. 58-59;
C & L Enterprises, Inc., supra, 532 U.S. at p. 418; Maxwell v. County of San Diego (9th
Cir. 2013) 708 F.3d 1075, 1087 (Maxwell); Allen v. Gold Country Casino (9th Cir. 2006)
464 F.3d 1044, 1047; McClendon v. United States (9th Cir. 1989) 885 F.2d 627, 629
(McClendon); Lawrence v. Barona Valley Ranch Resort & Casino (2007) 153
Cal.App.4th 1364, 1369.) Waivers are strictly construed and there is a strong
presumption against them. (Ameriloan, supra, 169 Cal.App.4th at p. 94.) Lopez fails
to show that the Tribe unequivocally and clearly waived its sovereign immunity from suit
in this case.
Under the circumstances, the trial court did not err in concluding that the Tribe
was immune from Lopez’s suit. Because the Tribe was entitled to immunity from suit,
the trial court lacked jurisdiction over the claims against the Tribe and was required to
dismiss it from the action. (Pistor v. Garcia (9th Cir. 2015) 791 F.3d 1104, 1111
(Pistor); McClendon, supra, 885 F.2d at p. 629.)
II
Lopez further argues the Tribe’s sovereign immunity did not protect Quaempts
and Tovey from suit because they were sued in their individual capacities.
A
Tribal sovereign immunity protects tribal employees sued in their official
capacities. (Lewis v. Clarke (2017) _ U.S. _ [197 L.Ed.2d 631] [137 S.Ct. 1285, 1294]
(Lewis).) The analysis for determining whether a tribe’s sovereign immunity protects a
tribal employee is remedy-focused. (Id. at pp. 1290-1292.)
In Lewis, the plaintiffs brought a negligence action in state court against the driver
of a limousine that hit their vehicle on a state interstate. (Lewis, supra, 137 S.Ct. at
p. 1289.) The defendant was an employee of an arm of the Mohegan Tribe of Indians of
Connecticut and the collision occurred while the defendant was driving patrons of the

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Mohegan Sun Casino. (Id. at pp. 1289-1290.) The plaintiffs sued the defendant
personally and did not name the tribe as a defendant. (Ibid.) The defendant moved
to dismiss the action based on tribal sovereign immunity, arguing that he was entitled
to immunity because he was an employee of an arm of an Indian tribe, acting within the
scope of his employment at the time of the collision. (Id. at p. 1290.) The United States
Supreme Court explained that defendants in an official-capacity action may assert
sovereign immunity, whereas defendants in an individual-capacity action may not,
although personal immunity defenses may apply. (Id. at pp. 1291-1292.) Because the
plaintiff’s lawsuit in Lewis was a negligence action against the tribal employee and not a
suit against the employee in his official capacity, the Court concluded that a judgment in
that action would not operate against the tribe nor require action by the tribe or disturb its
property. (Id. at pp. 1290-1291.) It held that tribal sovereign immunity did not bar the
plaintiff’s lawsuit because the employee, and not his tribal employer, was the real party in
interest. (Id. at pp. 1290-1293 [stating that the critical inquiry was who may be legally
bound by the trial court’s judgment and not who will ultimately pick up the tab].)
The Ninth Circuit Court of Appeals has likewise held that tribal sovereign
immunity does not extend to a tribal employee sued in his or her individual capacity.
(Pistor, supra, 791 F.3d at pp. 1110, 1112-1114; Maxwell, supra, 708 F.3d at pp. 1087-
1089.) In Pistor, for example, gamblers sued the chief of the Tonto Apache Police
Department, the general manager of the Tonto Apache Tribe’s hotel and casino and the
Tribal Gaming Office Inspector for damages relating to the detention of the gamblers at
the tribe’s casino and the seizure of their property. (Pistor, at pp. 1108-1109.) On appeal
from an order denying the tribal defendants’ motion to dismiss based on tribal sovereign
immunity, the Ninth Circuit held that tribal sovereign immunity did not bar the suit
because the plaintiffs sought to hold the tribal defendants liable in their individual
capacities and did not seek money damages from the tribe, and the tribal defendants did
not show that a judgment would interfere with tribal administration or restrain the tribe

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from acting. (Id. at pp. 1108, 1113-1114; see Maxwell, at p. 1088; see also Native
American Distributing v. Seneca-Cayuga Tobacco Co. (10th Cir. 2008) 546 F.3d 1288,
1296-1297 [acknowledging that tribal officials may be sued in their individual capacities
for actions taken in their official capacities where the relief sought was from the officials
personally and not from the sovereign].) The Ninth Circuit noted that the gamblers had
not sued the tribe. (Pistor, at p. 1113.)
By contrast, the Ninth Circuit has extended tribal sovereign immunity to tribal
employees where the plaintiff sought to hold the tribe or a tribal entity vicariously liable
for the actions of the employees. (Cook v. AVI Casino Enterprises (9th Cir, 2008)
548 F.3d 718, 720, 726-727 (Cook); Linneen v. Gila River Indian Community (9th Cir.
2002) 276 F.3d 489, 492; Hardin v. White Mountain Apache Tribe (9th Cir. 1985)
779 F.2d 476, 479-480.)
Although the caption of the first amended complaint named Quaempts and Tovey
as individuals, we may not simply rely on the caption but must determine whether the
action against Quaempts and Tovey actually sought relief against the Tribe. (Lewis,
supra, 137 S.Ct. at p. 1290.) The first amended complaint alleged that Quaempts
committed wrongful acts against Lopez while he was employed as the director of the
Department. And Tovey failed to act or acted improperly as to Lopez while Tovey was
employed as the Tribe’s executive director. Lopez’s declaration in opposition to
defendants’ motion to quash and dismiss described acts or omissions by Quaempts in
interviewing Lopez, discussing her potential employment with the Tribe, and responding
to her concerns about staffing and budget when she was the program manager. Lopez
averred that her attorney unsuccessfully attempted to negotiate on her behalf with the
Tribe and her only option was to obtain relief in state court. Lopez did not discuss in her
declaration any attempt to obtain monetary relief from Quaempts or Tovey personally.
Neither the first amended complaint nor Lopez’s declaration stated that as to Quaempts
and Tovey, Lopez sought a judgment against those defendants personally. (Cf. JW

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Gaming Development v. James (9th Cir. 2019) 778 Fed.Appx. 545, 545-546 [claims
against individual tribal defendants were not shielded by the tribe’s sovereign immunity
because the claims were explicitly alleged against the tribal defendants in their individual
capacities and if the plaintiff prevailed on its claims against the tribal defendants, only
they personally and not the tribe would be bound by the judgment].) Lopez’s opposition
to defendants’ motion to quash and dismiss also did not make such an assertion. Rather,
unlike the circumstances in Lewis, the first amended complaint named the Tribe as a
defendant and sought to hold the Tribe vicariously liable for the conduct of its employees
Quaempts and Tovey, whose alleged acts or omissions in the course of recruiting, hiring
and supervising Lopez, another tribal employee, formed the grounds for Lopez’s causes
of action.1 (See generally Miller v. Stouffer (1992) 9 Cal.App.4th 70, 84 [explaining that
under the doctrine of respondeat superior, the employee’s negligence is imputed to her
employer; thus, the employer stands in the employee’s shoes and the entire liability of the
two defendants is co-extensive].) In fact, the cause of action for fraudulent
misrepresentation in violation of Labor Code section 970 was based on defendants’
alleged status as employers.
The Tribe was the real party in interest in the first amended complaint against
Quaempts and Tovey. (See Cook, supra, 548 F.3d at pp. 721, 726-727; Imperial Granite
Co. v. Pala Band of Mission Indians (9th Cir. 1991) 940 F.2d 1269, 1270-1272;
Romanella v. Hayward (D.Conn. 1996) 933 F.Supp. 163, 164-165, 167-168; cf. Lewis v.
Clarke (Conn. Super. Ct. Sept. 10, 2014) 2014 WL 5354956, at *1, 4 [2014 Conn. Super.
LEXIS 2314]; Pistor, supra, 791 F.3d at pp. 1108, 1113; Maxwell, supra, 708 F.3d at pp.
1081, 1089.) We conclude the first amended complaint sued Quaempts and Tovey in
their representative or official capacities and not their individual capacities.

1Lopez’s appellate reply brief also makes clear that she seeks to hold the Tribe liable for
Quaempts and Tovey’s conduct under the ratification doctrine.

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 In considering Quaempts and Tovey’s assertion that the Tribe’s sovereign
immunity extended to them, we also consider whether Lopez showed that Quaempts and
Tovey exceeded the scope of their official authority. (See Brown, supra, 17 Cal.App.5th
at pp. 1206-1207; Redding Rancheria v. Superior Court (2001) 88 Cal.App.4th 384, 390;
Great Western Casinos, Inc., supra, 74 Cal.App.4th at p. 1421; Trudgeon v. Fantasy
Springs Casino (1999) 71 Cal.App.4th 632, 643-644 (Trudgeon); Davis v. Littell (9th Cir.
1968) 398 F.2d 83, 83-85; Acres Bonusing, Inc. v. Marston (N.D. Cal. Apr. 15, 2020)
2020 WL 1877711, at *4 [2020 U.S. Dist. LEXIS 66438].) The agent of a sovereign may
be sued in his or her personal capacity when his or her actions exceed the authority
granted by the sovereign. (Larson v. Domestic & Foreign Commerce Corp. (1949)
337 U.S. 682, 689-690 (Larson); Boisclair v. Superior Court (1990) 51 Cal.3d 1140,
1157 (Boisclair).) Under such circumstances the agent’s conduct is not the conduct of
the sovereign. (Larson, at p. 690.) But a claim of error in the exercise of delegated
power or the mere allegation that the agent acted illegally is not sufficient to establish
that the acts of the agent were beyond his or her authority. (Id. at pp. 690-691, 693.)
The first amended complaint alleged that Quaempts and Tovey acted within the
scope of their employment but outside the scope of their authority. But it did not specify
which acts were beyond the scope of their authority. Lopez’s declaration in opposition to
defendants’ motion did not aver any facts indicating that Quaempts or Tovey exceeded
the scope of their authority as Department director and executive director. An agent’s
tortious action is not ipso facto beyond his or her delegated powers. (Larson, supra,
337 U.S. at p. 695; Boisclair, supra, 51 Cal.3d at p. 1157; Brown, supra, 17 Cal.App.5th
at pp. 1200, 1206-1207; Trudgeon, supra, 71 Cal.App.4th at p. 644.)
Lopez asserts that her claims have no relationship to tribal governance and
administration, but we disagree. An action challenging the employment decisions of a
tribe can affect tribal governance and administration (EEOC v. Karuk Tribe Housing
Authority (9th Cir. 2001) 260 F.3d 1071, 1080-1082; Penobscot Nation v. Fellencer (1st

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Cir. 1999) 164 F.3d 706, 707, 710-713; see also Dille v. Council of Energy Resource
Tribes (10th Cir. 1986) 801 F.2d 373, 374-375), and here, Lopez’s claims involve the
administration of the Department and the First Foods Policy Program.
On appeal, Lopez urges that Quaempts and Tovey exceeded the scope of their
authority by violating the Tribe’s Personnel Policies Manual when they committed false
advertising. However, the first amended complaint does not contain such an allegation.
Lopez also argues that the Tribe’s ratification of Quaempts and Tovey’s actions did not
extend tribal sovereign immunity to Quaempts and Tovey. But Quaempts and Tovey’s
immunity claim was based on tribal sovereign immunity and not ratification. Lopez
further contends that federal courts presume that officials are sued in their personal
capacities even if the complaint does not explicitly mention the capacity in which they
are sued. But the authority she cites for that proposition -- Romano v. Bible (9th Cir.
1999) 169 F.3d 1182 -- relates to a claim under 42 U.S.C. section 1983, which authorizes
an action against any person who, acting under color of state law, causes another to be
deprived of rights, privileges or immunities secured by the Constitution and laws. This
case does not involve a section 1983 claim.
The trial court did not err in ruling that as pleaded, the first amended complaint
asserted claims against Quaempts and Tovey in their official capacities. Because the first
amended complaint against Quaempts and Tovey was an official capacity suit and did not
seek damages against Quaempts and Tovey personally, tribal sovereign immunity bars
Lopez’s first amended complaint against them.
B
Lopez next asserts that she should be allowed to further amend her pleading to
focus her allegations on claims against Quaempts and Tovey individually.
A trial court may, in its discretion, after notice to the adverse party, allow, upon
any terms as may be just, an amendment to any pleading. (Code Civ. Proc., § 473,
subd. (a).) However, no amendment can be made after a judgment of dismissal has been

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entered without first vacating or setting aside the judgment. (Watterson v. Owens River
Canal Co. (1922) 190 Cal. 88, 96; People ex rel. Hastings v. Jackson (1864) 24 Cal. 630,
633; Risco v. Reuss (1941) 45 Cal.App.2d 243, 245; Issa v. Alzammar (1995) 38
Cal.App.4th Supp. 1, 4.) Here, we affirm the order dismissing the complaint against the
Tribe, Quaempts and Tovey, and there is no complaint to amend. Lopez fails to cite any
authority that supports her request to further amend her pleading after an order dismissing
the amended complaint is affirmed. In Turner v. Martire (2000) 82 Cal.App.4th 1042,
the case Lopez cites, the order quashing service and dismissing the action based on tribal
sovereign immunity was reversed. (Id. at pp. 1044-1045.)
Because tribal sovereign immunity bars the suit against defendants, we need not
address Lopez’s other appellate claims.
DISPOSITION
The order quashing the service of, and dismissing, Lopez’s first amended
complaint is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules
of Court, 8.278(a)(1), (2).)

/S/
MAURO, J.

We concur:

/S/
ROBIE, Acting P. J.

/S/
HOCH, J.

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