Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge, Super.Ct.No. RIC427295
Holstein, Taylor, Unitt & Law and Brian C. Unitt for Plaintiffs and Appellants.
Holland & Knight, Paul C. Workman, Frank R. Lawrence; Law Office of John Schumacher and John C. Schumacher for Defendant and Respondent.
OPINION
RICHLI, J.
This case is the sequel to LaMere v. Superior Court (2005) 131 Cal.App.4th 1059 (LaMere).
In LaMere, the plaintiffs were members of the Pechanga Band of Temecula Luiseño Mission Indians (the Band); the defendants were members of the Band’s enrollment committee. The defendants had allegedly commenced proceedings to disenroll the plaintiffs, in violation of the Band’s own laws. This court held that the trial court lacked jurisdiction of the dispute.
The plaintiffs in this case are more or less the same people as in LaMere; they have now been disenrolled. Once again, they allege that they were disenrolled in violation of the Band’s own laws. This time, however, instead of suing the members of the enrollment committee, they are suing a group of private individuals who allegedly instigated the disenrollment proceedings for the ulterior purpose of increasing defendants’ own share of the Band’s gaming revenues. Plaintiffs assert standard state-law causes of action against those individuals — interference with prospective economic advantage, defamation, and false-light invasion of privacy. All of these causes of action, however, with one minor exception, are premised on the alleged fact that plaintiffs are rightfully members of the Band and have been improperly disenrolled. For example, plaintiffs allege that the way that defendants interfered with their prospective economic advantage was by improperly disenrolling them and thereby disqualifying them from sharing in the Band’s gaming revenues and the other economic benefits of membership.
We will hold that the crucial factor in LaMere was not the identity of the defendants; rather, it was the nature of the issue to be decided. Because an Indian tribe has the sovereign power to determine its own membership, and because state courts have no jurisdiction to interfere with tribal sovereignty, a California state court simply has no jurisdiction to decide for itself who is and is not a member of a tribe. It must accept the tribe’s own membership determinations as conclusive. Moreover, to the extent that plaintiffs’ causes of action stand or fall on the premise that plaintiffs were improperly disenrolled, the trial court properly sustained a demurrer.
I
FACTUAL BACKGROUND
The factual allegations of the operative complaint are as follows. Defendants vigorously dispute the truth of these allegations. However, “[w]hen reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Plaintiffs are all descendents of Pablo Apis, a 19th-century leader of the Band, through his granddaughter, Manuela Miranda.
The named plaintiffs are Michael Salinas, Juanita Sanchez, Andrew Candelaria, Bobbi Candelaria, Barbara Alvarez, Manuel Alvarez, Andrea Alvarez, Stella Alvarez, Matt Avalos, Lisa Auer, Marie Bartolomei, Stephanie Blaney-Alvarez, Greg Browning, Geoff Browning, Thomas Chagolla, Timothy Chagolla, Tammy Chagolla, Cheryl Choy, Celeste Daniel, Jonathan Gardner, Alfred Gomez, Tim Gomez, Marc Gomez, Nicolas Gomez, John Gomez, Sr., John Gomez, Jr., Paul Gomez, Sr., Arthur Gomez, Sr., Edward A. Gutierrez, Edward C. Gutierrez, John Gutierrez, Andrew R. Gutierrez, Arnold Gutierrez, David Gutierrez, Danny Gutierrez, Rosmarie Guzman, Olivia Herrera, Louis Herrera, Jessie Herrera, Mario Herrera, Gabriel Herrera, Tommy Herrera, Becky Jaime, Monica Jaime, Ruben Jaime, Gilbert Jaime, Melinda Landeros, Nellie Lara, Joseph Lara, Frank Andrew Lara, Michael M. Lara, Mea Lara, Morning Rose Lee, Steven Lopez, Shawna Macintosh, David Macintoshk, Calista Magee, Melanie Marcus, Kierra Marcus, Casandra Moreno, Tom Moreno, Leonard Moreno, Tom Moreno, Robert Moreno, Mark A. Moreno, Raymond Moreno, Juan Moreno, Jr., Juan Moreno, Sr., Tonya Moreno-Dick, Regina Moreno-Garcia, Jesus Negrete, Jr., Francisco Negrete, Renee Negrete, Yvonne Negrette, Guero Nunez, Mado Nunez, Michael Nunez, Tashina Ornelas, Anne Marie Orona, Edward Razo, Daniel Razo, Stephan Razo, Trina Razo, Steven Razo, Edward Razo II, Sandy Ribera, Irehne Ruiz, Fernando Ruiz, Jr., Emanuel Salinas, Gabriel Salinas, Gilbert Salinas, Fred Sartuche, John Sartuche, Nicholes Sartuche, Maurice Sartuche, Fred Sartuche, Jr., Debbie Sartuche-Smith, Gilbert Schneider, Theresa Spears, Travis Spears, Bautista Spears, Chalene Spears, Dorothy Sullivan, Gina Sullivan-Ponce, Thomas Thompson, Rick Thompson, Lisa P. Wilbur, Margie N. Wozniak, Joeb A. Wozniak, Daniel Zamora, Bonnie Zamora, Sir John Gomez, Stephanie Serrano Ribera, Amanda Ribera, Jessica Ribera, William P. Henderson, Gary Gallemore II, Ryan Macintosh, Daniel Sartuche, Elizabeth Sartuche, Cheyenne Rodriguez, Cody Rodriguez, Jessica Guzman, Rosemarie Guzman, Andee Wozniak, Dana Negrete, Denise Negrete, Michael P. Alvarez, Alycia Daniel, Juan J. Daniel, Matthew John Alvarez, Valerie Michelle Alvarez, Sandra Irene Sanchez, Ruben Moreno Jaime, Ricardo Moreno Jaime, Kristina Gomez, Rachel Gomez, and Nicholas M. Gomez, Jr.
Adult members of the Band are entitled to various benefits provided by the Band, including a share of the Band’s gaming revenue (currently about $15,000 per month per person), free health and life insurance, free educational support, and hiring preferences. They are also entitled to benefits from the United States government.
According to the Band’s constitution, an applicant for enrollment must show that he or she is a direct descendant of “original Pechanga Temecula People,” as listed in the Band’s official enrollment book. The official enrollment book lists the Apis and the Miranda families as original Pechanga Temecula people; it also lists several of the plaintiffs by name.
In 1978, the Band adopted an official enrollment application, which required the applicant to show that he or she was a direct descendent of an original Pechanga Temecula person. Each adult plaintiff applied for enrollment, pursuant to the 1978 official enrollment application, and was duly enrolled.
Defendants then entered into a conspiracy, with each other as well as with certain members of the Band’s enrollment committee, to disenroll other members of the Band. For defendants, this serves three purposes: it eliminates their opponents; it increases their share of power within the Band; and it increases their share of the Band’s gaming revenue.
The named defendants — in addition to respondent Sylvia Barron — are Jennie Miranda, Raymond Basquez, Sr., Charles Edward Burbee, James Lira, Gloria Wright, Ronald Rivera, Yolanda McCarter, Arthur Masiel, Donna Barron Masiel, John Ibanez, Frances Garcia, Richard Scearce III, Janis Ayal, Aurelia Marruffo, Barbara Basquez, Mary Bear Magee, Leslie Stevenson, Priscilla Alvarez, and Larry Miranda.
In December 2002, defendants asked the Band’s enrollment committee to begin disenrollment proceedings against plaintiffs. Defendants asserted that plaintiffs were not entitled to enrollment for two reasons: first, because Manuela Miranda had applied for and received a homestead; and second, because Manuela Miranda was not listed in a 1929 Pechanga census report. However, under the Band’s constitution, neither of these was a valid bar to enrollment.
Between December 2002 and June 2003, defendants contacted other members of the Band, both in writing and in person, and asserted that plaintiffs should be disenrolled. In these contacts, they stated, among other things, that plaintiffs were “non-tribal members” who “should never have been enrolled”; that plaintiffs “do not belong here at [P]echanga”; that plaintiffs were “despicable”; and that plaintiffs were “liars, villains, and misfits . . . .”
Meanwhile, on March 7, 2003, the tribal chairman removed all but three members of the enrollment committee. Because the Band’s enrollment procedures require at least six of the members of the enrollment committee to concur on any official action, this stripped the enrollment committee of its power to lawfully act.
Nevertheless, on October 23, 2003, the enrollment committee sent plaintiffs disenrollment summonses. In the subsequent disenrollment proceedings, the enrollment committee prevented plaintiffs from presenting documentary evidence that was relevant and admissible under the Band’s written procedures. The enrollment committee also placed the burden of proof on plaintiffs, contrary to the Band’s written procedures. Some defendants were relatives of members of the enrollment committee. Defendants put pressure on members of the enrollment committee and manipulated their personal relationships with them to induce them to disenroll plaintiffs.
On March 17, 2004, plaintiffs were notified that they had been disenrolled. As a result, they have been deprived of the benefits — cultural as well as pecuniary — of membership in the Band, in violation of the Band’s own constitution, bylaws, and written enrollment and disenrollment procedures.
II
PROCEDURAL BACKGROUND
On March 17, 2005, plaintiffs filed the present action. Their complaint, as subsequently amended, asserted four causes of action, for (1) intentional interference with prospective economic advantage, (2) negligent interference with prospective economic advantage, (3) defamation, and (4) false-light invasion of privacy.
Defendant Sylvia Barron demurred to the complaint, arguing that the trial court lacked subject-matter jurisdiction because the action concerned “internal enrollment matters of a sovereign Indian tribe.” She also argued that the action was barred, as a matter of res judicata, by the decision in LaMere. Finally, she argued that each of plaintiffs’ causes of action was barred by the litigation privilege (Civ. Code, § 47, subd. (b)) or otherwise not properly alleged.
The trial court sustained the demurrer without leave to amend, ruling that it lacked subject-matter jurisdiction. Accordingly, it entered a judgment of dismissal in favor of Barron and against plaintiffs.
III
DISCUSSION
The federal government has a “longstanding policy of encouraging tribal self-government. [Citations.] This policy reflects the fact that Indian tribes retain ‘attributes of sovereignty over both their members and their territory,’ [citation], to the extent that sovereignty has not been withdrawn by federal statute or treaty. The federal policy favoring tribal self-government operates even in areas where state control has not been affirmatively pre-empted by federal statute. ‘[A]bsent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.’ [Citation.]” (Iowa Mut. Ins. Co. v. LaPlante (1987) 480 U.S. 9, 14 [107 S.Ct. 971, 94 L.Ed.2d 10], fn. omitted, quoting United States v. Mazurie (1975) 419 U.S. 544, 557 [95 S.Ct. 710, 42 L.Ed.2d 706] and Williams v. Lee (1959) 358 U.S. 217, 220 [79 S.Ct. 269, 3 L.Ed.2d 251].) Thus, “[i]f state-court jurisdiction over Indians or activities on Indian lands would interfere with tribal sovereignty and self-government, the state courts are generally divested of jurisdiction as a matter of federal law. [Citations.]” (Iowa Mut. Ins. Co., at p. 15.)
“[W]hat is necessary to protect tribal self-government and control internal relations can be understood by looking at the [following] examples of tribal power . . .: tribes have authority ‘[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members,’ [citation].” (Nevada v. Hicks (2001) 533 U.S. 353, 360-361 [121 S.Ct. 2304, 150 L.Ed.2d 398], italics added, quoting Strate v. A-1 Contractors (1997) 520 U.S. 438, 459 [117 S.Ct. 1404, 137 L.Ed.2d 661], quoting Montana v. U.S. (1981) 450 U.S. 544, 564 [101 S.Ct. 1245, 67 L.Ed.2d 493].)
Accordingly, absent any contrary act of Congress, we would conclude that a state court has no jurisdiction to determine tribal membership. Plaintiffs, however, rely on Title 28 United States Code section 1360, commonly known as Public Law 280. This statute, as relevant here, provides that six specified states, including California, “shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in . . . areas of Indian country . . . to the same extent that such State has jurisdiction over other civil causes of action . . . .” (28 U.S.C. § 1360(a).)
We recognize that “‘Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.’ [Citations.]” (Iowa Mut. Ins. Co. v. LaPlante, supra, 480 U.S. at p. 17, fn. 9, quoting Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 56 [98 S.Ct. 1670, 56 L.Ed.2d 106].) However, the United States Supreme Court “ha[s] never . . . found Pub[lic] L[aw] 280 to represent an abandonment of the federal interest in guarding Indian self-governance.” (Three Affil. Tribes of Ft. Berthold v. Wold Engine. (1986) 476 U.S. 877, 892 [106 S.Ct. 2305, 90 L.Ed.2d 881].)
Thus, in LaMere, we held that Public Law 280 does not give California courts jurisdiction over tribal membership disputes. We explained: “ . . . Public Law 280 cannot be viewed as a general grant of jurisdiction to state courts to determine intratribal disputes. [Citation.] Rather, ‘[t]he primary concern of Congress in enacting Pub[lic] L[aw] 280 . . . was with the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement.’ [Citation.] Accordingly, Public Law 280 allowed state courts to enforce their own criminal laws with respect to offenses committed either by or against Indians on Indian land.
“With respect to the grant of civil jurisdiction, the Supreme Court has acknowledged that the legislative history reflects a ‘virtual absence of expression of congressional policy or intent . . . .’ [Citation.] However, this provision ‘seems to have been primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens . . . .’ [Citation.] Its effect is therefore ‘to grant jurisdiction over private civil litigation involving reservation Indians in state court.’ [Citation.] In our view, this is not a ‘private legal dispute between reservation Indians,’ but rather goes to the heart of tribal sovereignty.” (LaMere, supra, 131 Cal.App.4th at p. 1064, quoting Bryan v. Itasca County (1976) 426 U.S. 373, 379, 381, 383 [96 S.Ct. 2102, 48 L.Ed.2d 710].)
Admittedly, our decision turned, in part, on the fact that the plaintiffs were challenging actions that, we concluded, the defendants had taken in their official capacity. Thus, we stated: “ . . . Public Law 280 does not provide jurisdiction over disputes involving a tribe. . . . Plaintiffs tacitly acknowledge this fact, as they have not attempted to sue the Band, but have only sued the individual members of the enrollment committee. They insist that the individual member defendants are subject to jurisdiction and the dispute is justiciable. We disagree.
“ . . . [I]ndividual tribal members have no sovereign immunity from suit unless they are acting in official capacities on behalf of a tribe. [Citation.] Plaintiffs argue that the defendants do not qualify for two reasons: first, they exercised only ministerial authority in reviewing enrollment matters, and second, that in taking the actions of which complaint is made, they acted ultra vires and thus lost any immunity. [Citation.] Neither argument is persuasive.
“First, we cannot agree that the enrollment committee is intended to operate in a mechanical matter, exercising no discretion. Although the Band Constitution and other enactments may set out the basic qualifications for tribal membership, it is apparent to us that the committee is necessarily entrusted with substantial discretion in evaluating evidence submitted for its consideration. Perhaps more importantly, in exercising its authority to determine who qualifies as a member of the Band, the committee also necessarily acts as an essential arm of the Band itself. . . . Insofar as the committee decides issues of Band membership, we can hardly conceive of a more essential tribal function.
“Secondly, even if the allegations of the complaint are sufficient to show that defendants were acting ultra vires in the sense that they failed to follow established procedures, the dispute remains essentially between plaintiffs and the Band.” (LaMere, supra, 131 Cal.App.4th at pp. 1064-1066, fn. omitted.)
In part, however, our decision also turned on the fact that “membership issues . . . are basic to tribal self-governance.” (LaMere, supra, 131 Cal.App.4th at p. 1067.) We explained: “[P]laintiffs are effectively asking this court to interfere with the Band’s determination of ‘Who is a Pechanga?’ and that decision would unavoidably have substantial and continuing effects on the Band’s self-governance. Congress cannot have had such an intent in enacting Public Law 280.
“In short, we are persuaded that Congress did not intend that the courts of this state should have the power to intervene — or interfere — in purely tribal matters. Insofar as plaintiffs sue for violations of ‘Pechanga Band Law,’ it is for the Band to determine what that law is and whether or not it has been violated.” (LaMere, supra, 131 Cal.App.4th at p. 1067.)
Finally, we acknowledged that, because the Band has no tribal courts (see LaMere, supra, 131 Cal.App.4th at p. 1062), “our ruling means that plaintiffs have no formal judicial remedy for the alleged injustice.” (Id. at p. 1063, fn. 2.) However, we rejected the plaintiffs’ argument that we were leaving them with no remedy at all: “According to the Band’s ‘Enrollment Disenrollment Procedure’ enacted by the General Council in 1988, the enrollment committee’s decision is subject to an appeal to the General Council. The General Council has the authority to ‘correct any infractions to the disenrollment procedure.’ It may also ‘instruct’ the committee to reevaluate a disputed matter applying ‘any specific suggestion for a fair decision.’ If the defendants breached their duties to the Band, the Band may ‘correct’ and ‘instruct’ them. . . . We note that a tribe may choose to exercise its ‘law-applying’ power either through a tribal court or a ‘nonjudicial tribal institution’ [citation]; and where a tribe, as here, has provided for an internal appeal of crucial decisions, there is no need for state courts to act as a ‘tribal court.’” (Id. at pp. 1065-1066, fn. omitted, quoting Santa Clara Pueblo v. Martinez, supra, 436 U.S. at p. 66.)
Plaintiffs argue that this case is distinguishable from LaMere because this time, the defendants are “individual Native Americans holding no tribal office . . . .” However, while we noted in LaMere that the defendants there had acted in their official capacity, under the standards applicable to sovereign immunity, we do not believe that that fact was dispositive. Even in the portion of our opinion that addressed the official-capacity and sovereign-immunity issues, we stated, “Insofar as the committee decides issues of Band membership, we can hardly conceive of a more essential tribal function.” (LaMere, supra, 131 Cal.App.4th at p. 1065.) We also said, “[T]he dispute remains essentially between plaintiffs and the Band.” (Ibid., fn. omitted.) We then went on to find additional support for our opinion in the fact that “membership issues . . . are basic to tribal self-governance.” (Id. at p. 1067.) Accordingly, LaMere stands for the proposition that a California state court does not have jurisdiction, under Public Law 280 or otherwise, to determine one particular issue: who is or is not properly a member of an Indian tribe under tribal law.
We also note that Public Law 280 conveys jurisdiction over actions to which an Indian is a party and which arise in Indian country only “to the same extent that such State has jurisdiction over other civil causes of action . . . .” (28 U.S.C. § 1360(a).) One can imagine a dispute between non-Indians, not arising in Indian country, that would nevertheless require a court to decide whether someone is a member of an Indian tribe. Assume, for example, that a deceased father’s will leaves his estate to his daughter, but only if she has not married a member of an Indian tribe; if she has, the estate goes to charity. Further assume that the daughter has married one of the male plaintiffs in this action. In an action between the daughter and the charity, a California court would have general civil jurisdiction. Moreover, in such an action, it could find as a fact that the Band did or did not recognize the husband as a member. It would not have jurisdiction, however, to determine for itself, ab initio, pursuant to the Band’s constitution and laws, whether the husband is or is not properly a member of the Band. Because it would not have such jurisdiction in an action between non-Indians, it likewise would not have it under Public Law 280 in an action to which an Indian is a party.
The California courts do have jurisdiction, generally speaking, of causes of action for interference with prospective economic advantage, defamation, and invasion of privacy. In this case, under Public Law 280, they are not divested of this jurisdiction merely because the plaintiffs and/or the defendants are Indians. Moreover, Barron and the other defendants are private persons not entitled to sovereign immunity. The trial court, however, lacks jurisdiction to determine, ab initio, whether plaintiffs are properly members of the Band under tribal law. It must accept the Band’s determination as conclusive.
Given that, plaintiffs have failed to state a cause of action for interference with prospective economic advantage. “[A] plaintiff seeking to recover damages for interference with prospective economic advantage must plead and prove as part of its case-in-chief that the defendant’s conduct was ‘wrongful by some legal measure other than the fact of interference itself.’ [Citation.]” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153, quoting Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.) “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard. [Citations.]” (Korean Supply Co., at p. 1159, fn. omitted.) This requirement applies regardless of whether the alleged interference was intentional or negligent. (National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 440.) Here, defendants’ efforts to have plaintiffs disenrolled were not legally wrongful, in light of the Band’s ultimate determination that in fact plaintiffs should be disenrolled.
At oral argument, based on the postbriefing decision in County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533 (Walsh), plaintiffs argued that, even assuming they were subject to disenrollment, defendants’ actions could be found to be independently wrongful. Walsh stated that county officials who had accepted bribes to induce the county to enter into a contract could be required to disgorge the amount of those bribes based on breach of fiduciary duty and unjust enrichment, even if there was no “actual loss to the public entity.” (Id. at p. 550.) Plaintiffs then argued that defendants could be liable for using unlawful methods, such as bribery or blackmail, to procure plaintiffs’ disenrollment, even though plaintiffs were subject to disenrollment by lawful means.
The problem with this argument is twofold. First, the complaint indicates no reasonable possibility that plaintiffs could amend so as to allege that defendants used any independently unlawful methods. The only unlawful acts alleged or implied have to do with violations of the Band’s constitution, bylaws, and procedures. These are the same violations on which plaintiffs rely in arguing that they are rightfully members of the Band; they relate to matters of tribal sovereignty and self-governance. Second, it does not appear that plaintiffs could allege any unlawful enrichment. In Walsh, because the defendants took bribes, to which they were not entitled under any circumstances, they were unlawfully enriched regardless of whether the county suffered any other loss. Here, by contrast, defendants were enriched, if at all, only because plaintiffs were disenrolled, increasing defendants’ share of tribal benefits. However, if plaintiffs were not entitled to be enrolled in the first place, defendants did not gain anything by any unlawful means to which they were not otherwise entitled.
The sole exception is the allegation that, in 1980 or 1981, persons associated with defendants (not necessarily defendants themselves) misappropriated money from the Band. Between the statute of limitations, the failure to allege that any particular defendant participated in the misappropriation, and the failure to allege any connection between the misappropriation and plaintiffs’ disenrollment, it does not appear that plaintiffs could state a cause of action based on the misappropriation.
Similarly, plaintiffs have failed to state a cause of action for false-light invasion of privacy, because the private facts that were allegedly publicized — that plaintiffs were not eligible for membership in the Band — must be conclusively deemed true.
Finally, plaintiffs have failed to state a cause of action for defamation. To the extent that defendants allegedly told others that plaintiffs were not eligible for membership in the Band, defendants’ statements must be accepted as true. “Truth of the statements made is a complete defense against liability for defamation, regardless of bad faith or malicious purpose. [Citations.]” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 556, p. 814.)
Amidst the general allegations of their complaint, plaintiffs also allege that defendants told others that plaintiffs were “despicable” and that plaintiffs were “liars, villains, and misfits.” Their cause of action for defamation incorporates these allegations by reference, but it never alleges that these statements were false or defamatory. The only statements that the complaint specifically alleges were false and defamatory were to the effect that that plaintiffs were not eligible for membership in the Band.
Nevertheless, it appears that plaintiffs could amend their complaint to state a cause of action for defamation based on these statements. The trial court could adjudicate such a cause of action without having to determine whether plaintiffs were properly members of the Band. Accordingly, on remand, the trial court should give plaintiffs an opportunity to amend their complaint so as to state a cause of action for defamation based solely on these statements. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [“it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect . . . can be cured by amendment”].)
Barron argues that any defamation action based on these statements would be barred by privilege. (Civ. Code, § 47, subd. (b).) While that may (or may not) be true as a factual matter, we cannot hold that it is true as a matter of law for purposes of the demurrer. The complaint alleged that the statements were made in letters mailed to the entire Band. Barron asks us to take judicial notice that, under the Band’s constitution and bylaws, the members of the Band constitute the “governing body” of the Band. Even if so, however, there is nothing before us to indicate that, at that stage, it was either necessary or proper for defendants to communicate with the governing body as a whole, rather than with the enrollment committee, regarding the disenrollment of plaintiffs. Thus, the complaint falls short of demonstrating that these letters had the “connection or logical relation” to the disenrollment proceedings that would be necessary for the privilege to attach. (Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 478.) “[R]epublication of a privileged communication to a nonparticipant in the proceeding is generally not privileged [citation] . . . .” (Id. at p. 479 [official proceeding privilege]; see also Silberg v. Anderson (1990) 50 Cal.3d 205, 219 [judicial proceeding privilege].)
At oral argument, Barron also asserted for the first time that the alleged statements are nonactionable as “group defamation.” (See generally Rest.2d Torts, § 564A; Noral v. Hearst Publications, Inc. (1940) 40 Cal.App.2d 348, 350-353.) We deem this issue forfeited for purposes of this appeal, especially because plaintiffs have had no opportunity to brief it. (Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1463 [Fourth Dist., Div. Two].) Even if we were to consider it, however, the question before us would be whether there is a reasonable possibility that, on remand, plaintiffs can amend their complaint so as to demonstrate that the group defamation doctrine does not apply. Currently, plaintiffs allege that the defamatory statements were made concerning “[p]laintiffs’ family.” They further allege that the families involved were “named . . . .” Moreover, they allege that the statements referred to “‘despicable families and individuals[.]’” (Italics added.) We conclude that there is a reasonable possibility that plaintiffs could allege that the statements were made of and concerning a sufficiently small group of identifiable persons. However, if they fail to do so, defendants will be free to demur to the amended complaint based on the group defamation doctrine.
IV
DISPOSITION
The judgment is reversed. The order sustaining the demurrer without leave to amend is affirmed with respect to the first, second, and fourth causes of action and reversed with respect to the third cause of action. The trial court is directed to enter a new order sustaining the demurrer with leave to amend with respect to the third cause of action. In the interest of justice, because Barron is the prevailing party with respect to the bulk of plaintiffs’ claims, Barron is awarded costs on appeal against plaintiffs.
We concur: McKINSTER, Acting P.J., GAUT, J.