Rincon Band Of Luiseño Mission Indians of the Rincon Reservation California et al., Plaintiffs and Appellants, v. LARRY FLYNT et al., Defendants and Respondents. Court of Appeals of California, Fourth District, Division One. No. D077571 Filed October 28, 2021
2021; Mary Ann Liebert, Inc.; Volume: 26; Issue: 1 Linguagem: Inglês
10.1089/glr2.2021.0036
ISSN2572-5327
ResumoGaming Law ReviewVol. 26, No. 1 CasesFree AccessRincon Band Of Luiseño Mission Indians of the Rincon Reservation California et al., Plaintiffs and Appellants, v. LARRY FLYNT et al., Defendants and Respondents. Court of Appeals of California, Fourth District, Division One. No. D077571 Filed October 28, 2021Published Online:11 Feb 2022https://doi.org/10.1089/glr2.2021.0036AboutSectionsPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2018-00058170-CU-NP-CTL, Timothy Taylor, Judge. Affirmed.Certified for PublicationDO, J.IntroductionThe California Constitution gives American Indian tribes the exclusive right to offer casino-style banked games1 in California. (Cal. Const., art. IV, § 19, subd. (f).) The plaintiffs—two American Indian tribes, business entities affiliated with the tribes, and individual tribe members—sued a number of non-tribal cardrooms alleging they were offering banked card games on non-tribal land, in violation of the exclusive right of Indian tribes to offer such games. Based on those allegations, the plaintiffs asserted claims for public nuisance, unfair competition, declaratory and injunctive relief, and tortious interference with a contractual relationship and prospective economic advantage.The defendants demurred and, after two rounds of amendments to the complaint, the trial court sustained the third and final demurrer without leave to amend and entered judgment of dismissal. The court ruled that, as governmental entities, the Indian tribes and their affiliated business entities are not “persons” with standing to sue under the unfair competition law (UCL) (Bus. & Prof. Code, §§ 17201, 17204), and are not “private person[s]” with standing under the public nuisance statutes (Civ. Code, §§ 3480, 3493.) The court further ruled the business entities and the individual tribe members failed to plead sufficient injury to themselves to establish standing to sue under the UCL or the public nuisance statutes.Although the plaintiffs broadly frame the issue on appeal as whether they, as American Indians, have standing to redress their grievances in California state courts, it is actually much narrower. The issue we must decide is whether the complaint in this case adequately pleads the asserted claims and contains allegations sufficient to establish the threshold issue of whether any of the named plaintiffs have standing to bring those claims. We agree with the trial court's conclusion that the complaint does not do so and, therefore, affirm the judgment in favor of the defendants.2Factual and Procedural BackgroundI. The partiesA. PlaintiffsAs alleged in the operative second amended complaint (SAC), there are three separate groups of plaintiffs in this lawsuit: 1) two American Indian tribes within the state of California—the Rincon Band of Luiseño Mission Indians of the Rincon Reservation (the Rincon Band) and the Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation (the Chumash Band) (together, the Tribes); 2) 10 business entities affiliated with the Tribes (the Tribe Entities); and 3) 12 individual members of the Rincon Band (the Tribe Members) (collectively, Plaintiffs).1. The Tribes.The Rincon Band and the Chumash Band are each “a federally recognized Indian tribe.” The Rincon Band has its reservation located in San Diego County and the Chumash Band has its reservation in Santa Barbara County.2. The Tribe Entities.The Tribe Entities are business entities “affiliat[ed] with or … operated by members of” the Tribes. There are three business entities affiliated with the Rincon Band: Rincon Economic Development Corporation, a federally chartered corporation doing business on the Rincon Band reservation; First Nations Economic Development Corporation, a federally chartered corporation doing business in southern and central California and on the Rincon Band reservation; and Harrah's Resort Southern California, “an unincorporated entity of the Rincon Band” doing business on the Rincon Band reservation.There are 10 business entities affiliated with the Chumash Band: Chumash Casino and Resort Enterprise, “an unincorporated entity of the Chumash Band” doing business on the Chumash Band reservation; five California limited liability companies doing business in Santa Barbara County, including SYBCI California Hotel No. 2, LLC, Chumash California Hotel No. 1, LLC, Chumash California Gas Station No. 1, LLC, Chumash California Gas Station No. 3, LLC, and Chumash Cellars, LLC; and Chumash Vineyards, LLC, a “tribally chartered limited liability company” doing business in Santa Barbara County.Plaintiffs allege that “[a]side from their affiliation with or being operated by members of federally recognized Indian tribes,” the Tribe Entities “operate in the same manner as other corporations, limited liability companies, and unincorporated entities.”3. The Tribe Members.The Tribe Members include the chairperson and a member of the Tribal Council who reside on the Rincon Band reservation and 10 other individual members of the Rincon Band, who each reside in non-tribal communities throughout “the greater Los Angeles/San Diego metropolitan area.”B. DefendantsPlaintiffs brought this lawsuit against two categories of defendants: (1) 11 owners and operators of commercial cardrooms in various parts of southern California (the Cardroom Defendants) and (2) 13 third-party proposition players (the TPP Defendants) (collectively, Defendants).The Cardroom Defendants operate gaming establishments on non-tribal land, which can legally offer non-banked card games, such as poker, for play by the public for a per-hand fee. The Cardroom Defendants have historically offered legal non-banked card games in which “there is no bank or house against which players bet. The deal would continuously rotate among the players, with the cardroom having no interest in the results of any hand or the winnings of any player-dealer or other participant.” The Cardroom Defendants include: Larry Flynt, as an individual and as trustee of the Larry Flynt Revocable Trust; El Dorado Enterprises, Inc., doing business as Hustler Casino; California Commerce Club, Inc., doing business as Commerce Casino; The Bicycle Casino, L.P.; Hawaiian Gardens Casino; Hollywood Park Casino Company, Inc.; Oceans 11 Casino, Inc.; Player's Poker Club, Inc.;3 Stones South Bay Corp., which owns Seven Mile Casino; Celebrity Casinos, Inc., which owns Crystal Casino; and Sahara Dunes Casino, L.P, doing business as Elsinore Hotel and Casino.The TPP Defendants are companies that hire “‘proposition player[s],’ … individual[s] paid by the cardroom to sit at the tables and reinvigorate games with dwindling action and thereby stimulate additional revenue for the cardroom in the form of per-hand fees collected from every player, as well as increased food and beverage sales. While the [proposition players] were paid to sit at the tables, they were required to gamble with their own money[.]”4 The TPP Defendants are: Blackstone Gaming, LLC; Halycon Gaming, LLC; PT Gaming, LLC; Global Player Services, Inc.; Dragon Player Services, LLC; Knighted Ventures, LLC; Majesty Partners, LLC; Certified Players Inc.; Pacific United Service Inc.; L.E. Gaming, Inc.; Qualified Player Services, LLC; Acme Player Services, LLC; and Metis TPS, LLC.II. History of California gaming lawCentral to Plaintiffs' claims in the SAC and appeal is the assertion that American Indian tribes have the exclusive right to offer casino-style banked card games in California. We therefore begin with a brief history of the relevant California gaming law before turning to the underlying litigation.Gambling has been regulated in California since the enactment of the state Constitution in 1849. Article IV, section 27 of the original Constitution prohibited lotteries and the sale of all lottery tickets. (See United Auburn Indian Community of Auburn Rancheria v. Newsom (2020) 10 Cal.5th 538, 549 (United Auburn).) “[W]hen the Penal Code was enacted in 1872, it prohibited several activities that fall within the ambit of gambling, including slot machines, roulette, and [some game called] hokey-pokey.” (Ibid.) “Over time, however, [the Constitution] has been amended several times to loosen those prohibitions” but not to allow casino-style gaming. (Ibid.) Since 1872, banked card games, such as twenty-one or blackjack, in which a banker “‘pays off all winning wagers and keeps all losing wagers’” have been prohibited. (Hotel Employees, supra, 21 Cal.4th at pp. 592–593; Pen. Code, § 330.)“In 1984, the people of California amended our Constitution to state a fundamental public policy against the legalization in California of casino gambling.” (Hotel Employees, supra, 21 Cal.4th at p. 589.) Article IV, section 19(e) was added to the Constitution by voter initiative to declare that “[t]he Legislature has no power to authorize, and shall prohibit, casinos of the type currently operating in Nevada and New Jersey.” (Cal. Const., art. IV, § 19, subd. (e), added by initiative, Gen. Elec. (Nov. 6, 1984) (hereafter article IV, section 19(e)); Hotel Employees, at p. 589.) This “anticasino provision” has been interpreted to refer to establishments that offer banked table games and gaming devices such as slot machines. (Hotel Employees, at pp. 604, 605.)In 1987, the United States Supreme Court decided California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202 (Cabazon), a case arising from California's attempt to enforce its state criminal law permitting the play of bingo only when operated by certain charitable organizations with restrictions on prizes, against federally recognized Indian tribes offering the game on tribal land. (Id. at p. 205.) California asserted that Congress expressly granted to it “broad criminal jurisdiction over offenses committed by or against Indians within all Indian country within the State” under Public Law 280.5 (Id. at p. 207.) Ruling in the tribes' favor, the Court concluded that California lacked the power to restrict tribal gaming. “[T]he Cabazon court held, [under Public Law 280,] the laws of these states generally applied to activities in Indian country to the extent the law was ‘prohibitory,’ but did not generally apply to the extent it was ‘regulatory,’ the shorthand test being whether the conduct at issue violates the state's public policy.” (Hotel Employees, supra, 21 Cal.4th at p. 595, citing Cabazon, at pp. 207–210.) Because California regulated but did not prohibit gambling, state laws governing the operation of gambling in general, and bingo in particular, were not enforceable on tribal land. (Ibid.) Following Cabazon, California could not restrict or regulate Indian gaming operations on tribal land unless it prohibited all gambling in the state. (See United Auburn, supra, 10 Cal.5th at p. 549.)“In 1988, in the wake of Cabazon, Congress enacted [the Indian Gaming Regulatory Act or] IGRA (Pub.L. No. 100-497 (Oct. 17, 1988), 102 Stat. 2467, as amended, codified at 25 U.S.C. § 2701 et seq. and 18 U.S.C. § 1166 et seq.), with the declared purpose to ‘provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments' (25 U.S.C. § 2702(1)), while at the same time providing a basis for regulation of Indian gaming so as to shield it from organized crime and corruption, prevent exploitation for non-Indian profit, and ensure fair and honest gaming. (IGRA, § 3; 25 U.S.C. § 2702(1), (2).)” (Hotel Employees, supra, 21 Cal.4th at p. 595.)IGRA divides gaming into three different categories: Class I games are “social games [played] solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations.” (25 U.S.C. § 2703(6).) Class II games are bingo and card games explicitly authorized by state law but excluding “any banking card games, including baccarat, chemin de fer, or blackjack (21)” and “electronic or electromechanical facsimiles of any game of chance or slot machines of any kind.” (Id., § 2703(7)(A) and (B).) Class III games include “all forms of gaming that are not class I gaming or class II gaming.” (25 U.S.C. § 2703(8).) “IGRA provides for the regulation of each of the three categories of gaming[—]from the lightest regulation for class I, by tribal action alone without federal or state participation; to heavier regulation for class II, by joint federal and tribal participation; to the heaviest regulation for class III, by state and tribal participation through tribal-state compacts plus federal oversight. (25 U.S.C. § 2710.)” (Hotel Employees, supra, 21 Cal.4th at p. 596.)“Class III gaming, comprising all gaming outside class I and class II, including pari-mutuel horse race wagering, lotteries, banked table games and gaming devices, is, unquestionably, the ‘most lucrative kind.’” (Hotel Employees, supra, 21 Cal.4th at p. 596.) “Because class III gaming can be ‘a source of substantial revenue for the Indian tribes and a significant rival for traditional private sector gaming facilities,’ its regulation ‘has been the most controversial part of … IGRA and the subject of considerable litigation between various Indian tribes and the states.’” (United Auburn, supra, 10 Cal.5th at p. 546.)To resolve the disputes that arose between the State of California and Indian tribes over class III gaming on Indian land, Proposition 5, “The Tribal Government Gaming and Economic Self-Sufficiency Act of 1998,” was put on the ballot to authorize various forms of gaming on tribal lands. (Hotel Employees, supra, 21 Cal.4th at pp. 589, 596–597.) California voters passed the measure in 1998. Thereafter, a number of tribes requested tribal-state gaming compacts to allow them to offer gaming, pursuant to IGRA and Proposition 5. (Id. at p. 590.) While those requests were pending, the California Supreme Court in Hotel Employees concluded that Proposition 5 was “invalid because it [wa]s inconsistent with the anticasino provision of article IV, section 19, subdivision (e) of the California Constitution,” and issued a writ prohibiting the Governor from implementing the new law.6 (Id. at pp. 615–616.)Two years later, in March 2000, California voters ended the prohibition against casino-style gaming on tribal land with the enactment of Proposition 1A. (United Auburn, supra, 10 Cal.5th at p. 549; Cal. Const., art. IV, § 19(f).) Proposition 1A amended the Constitution to give the Governor the authority “‘to negotiate and conclude compacts, subject to ratification by the Legislature, for the operation of slot machines and for the conduct of lottery games and banking and percentage card games by federally recognized Indian tribes on Indian lands in California in accordance with federal law.’” (United Auburn, at pp. 549–550, quoting Cal. Const., art. IV, § 19(f).) “Notwithstanding the Constitution's general restriction on casino-style gaming, Proposition 1A allowed that type of gaming ‘to be conducted and operated on tribal lands subject to [tribal-state] compacts.’” (United Auburn, at p. 550.)In September 2000, the Legislature amended the Penal Code and the Gambling Control Act (Bus. & Prof. Code, § 19800 et seq.), which prohibits the operation of gambling enterprises off tribal land except as expressly authorized by statute, to “authorize gambling establishments to operate controlled games utilizing a player-dealer position.” (Stats. 2000, ch. 1023 (Assem. Bill No. 1416), ¶ 1.) Penal Code section 330.11 and Business and Professions Code section 19805, subdivision (c) now provide that a “‘banked game’ does not include a controlled game if the published rules of the game feature a player-dealer position and provide that this position must be continuously and systematically rotated amongst each of the participants during the play of the game, ensure that the player-dealer is able to win or lose only a fixed and limited wager during the play of the game, and preclude the house, another entity, a player, or an observer from maintaining or operating as a bank during the course of the game.” (Pen. Code, § 330.11; Bus. & Prof. Code, § 19805, subd. (c).) As amended, Penal Code section 330.11 creates an exception to the prohibition on “banked games” on non-tribal land and permits such games so long as the rules of the game provide a player-dealer position that is continuously and systematically rotated among each of the participants throughout the game. Essentially, the player-dealer is in the position of the “bank” but because the position rotates throughout the game, each player occupying the role of the player-dealer is able to win or lose only a fixed amount during the play of the game. Thus, there is no “house” or similar entity capable of operating as a bank.III. The pleadings and demurrersA. Original complaint and demurrerThe Rincon Band and the Chumash Band were the only two plaintiffs named in the original complaint filed in 2018. The only named defendants were the Cardroom Defendants. Several unnamed third-party proposition players (TPPs) were included as Doe defendants. The complaint alleged two causes of action against the Cardroom Defendants—a public nuisance claim (Civ. Code, § 3480 et seq.; count 1) and an unfair competition claim (Bus. & Prof. Code, § 17200 et seq.; count 2)—and two causes of action for civil conspiracy to commit a public nuisance and unfair competition against the unnamed TPPs (counts 3 and 4).The complaint alleged the Tribes are “federally-recognized Indian tribe[s]” with the exclusive right to offer class III banked card games on tribal land in California pursuant to article IV, section 19(f) of the California Constitution and were “entitled by their inherent sovereign authority … to have such gaming opportunity manifest tribal economic development, self-sufficiency, and strong tribal government.” It alleged the Cardroom Defendants were restricted to offering non-banked games. The complaint further alleged the Cardroom Defendants traditionally offered non-banked games on non-tribal land pursuant to California law and, at times, employed TPPs to help stimulate additional game play, and thus additional per-hand fees.The complaint alleged, however, that class III banked card games such as blackjack and baccarat gained popularity on tribal land and the Cardroom Defendants wanted to compete “to make more money” by offering those same games in their cardrooms. To do so, the Cardroom Defendants exploited the amendments to Penal Code section 330.11 and Business and Professions Code section 19805, subdivision (c), which authorized the use of a player-dealer position, to restructure certain player-dealer position games to effectively, and illegally, offer class III banked games on non-tribal land.Specifically, the complaint alleged the Cardroom Defendants “fail[ed] to rotate the ‘banker’ position at their tables,” “routinely waive[d] per-hand collection fees for all but the [TPPs],” “allow[ed] the TPPs to function as the bank of a banked card game,” and “contract[ed] with TPPs … in a manner that provides [the Cardroom Defendants] an interest … in funds wagered, lost, or won.” In other words, the Cardroom Defendants had the TPPs “act as player-dealers to effectively ‘bank’ the game in violation of the California Constitution, Penal Code [s]ection 330 and Proposition 1A.” This, the Tribes alleged, deprived them of their exclusive right to offer banked games on tribal land.The complaint further alleged, as an “important” and “ironic” point, that the Tribes are restricted to offering gaming on their reservations “which are in most cases remote and therefore not near the urban centers from which they draw their customers.” The Cardroom Defendants, “by contrast, are not limited geographically. Thus, they violate the [T]ribes' exclusivity established in Proposition 1A and IGRA by offering their illegal games in dense population centers, and get to do so much closer to where … [the] Tribes' gaming customers live.”The Tribes alleged the Rincon Band lost at least $13.8 million per year and the Chumash Band lost at least $4.42 million per year in “governmental revenue,” from 2013 to 2017, as a result of gaming being diverted from tribal casinos to illegal non-tribal cardroom operations. The complaint further alleged that “[p]ursuant to tribal and federal law, governmental revenue generated from tribal gaming revenue cannot be used for purposes other than (i) to fund tribal government operations or programs, (ii) to provide for the general welfare of the Indian tribe and its members, (iii) to promote tribal economic development, (iv) to donate to charitable organizations, or (v)to help fund operations of local government agencies. 25 USC § 2710(b)(2)(B). Accordingly, every dollar of lost revenue is a dollar lost in those governmental programs and services.” In addition to the loss of governmental revenue, the Tribes alleged they “experienced losses of business, … tribal employment opportunity, competitive advantage, market share, and goodwill in the marketplace[.]” The Tribes sought both monetary and injunctive relief.The Cardroom Defendants demurred to the complaint and asserted the Tribes did not have standing to bring their claims. The trial court agreed and sustained the demurrer with leave to amend.The trial court found the Tribes failed to allege standing to bring a public nuisance claim because they were not a public representative authorized to bring a claim on behalf of the people of the State of California pursuant to Code of Civil Procedure section 731, and, as sovereign governmental entities, they were not a “‘private person’“ with standing to sue on their own behalf within the meaning of Civil Code section 3493. The court also found the Tribes failed to allege a “sufficient public harm,” or that they suffered from the same harm as the public, particularly because the complaint alleged the Tribes are “‘remote’” and “‘not near the urban centers from which they draw their customers’ … suggesting [the Tribes] do not suffer from the same harm as communities or neighborhoods that surround or are near defendants' cardrooms.” Similarly, the court found the Tribes failed to allege standing to bring a UCL claim because they are not among those representatives authorized to bring claims on behalf of the public pursuant to Business and Professions Code section 17204, and, as sovereign governmental entities, they were not a “‘person’” within the meaning of Business and Professions Code section 17201.B. First amended complaint and demurrerPlaintiffs filed a first amended complaint (FAC). The FAC maintained the Tribes are federally recognized Indian tribes but added that they are also each “a separate organized community of persons of Indian descent.” The FAC named 23 new plaintiffs, including the 10 Tribe Entities and 13 Tribe Members, and 13 new TPP defendants in place of the Doe defendants.The FAC replaced all references of “governmental revenue” lost by the Tribes as a result of the allegedly illegal cardroom operations with lost “tribal revenue.” It also deleted the allegation that the Tribes' reservations were “remote, and therefore not near” the urban centers from which they drew their customers.The FAC added new allegations regarding the “significant public harm” created by the Cardroom Defendants' allegedly illegal banked gaming. Specifically, it alleged that “[u]nregulated casino gaming off of Indian lands inflicts corrupt business practices” on gaming patrons, those doing business with the cardrooms, local governments that rely on “an illicit source of revenue,” and the general public. It further alleged that “[t]he complexity of the manner” in which the Cardroom Defendants offered banked games “materially hinders effective regulation adequate to shield them from organized crime and other corrupting influences,” and resulted in “material money laundering,” “pathological gambl[ing],” and “substantial hardship on their [i.e. Defendants’] communities and significantly increase[d] these communities' economic costs, particularly with regard to public assistance programs, court systems and prison systems.”Finally, the FAC added four additional causes of action. Count 5 sought injunctive relief against all defendants for an alleged violation of article IV, section 19(e). Count 6 sought declaratory relief against all defendants for the same constitutional violation and for violation of Penal Code section 330.11. Counts 7 and 8, asserted solely by the Chumash Band, alleged tortious interference with contractual relations and tortious interference with prospective economic advantage, based on the alleged economic relationship formed by the gaming compact between the State of California and the Chumash Band.Defendants demurred to the FAC and the trial court again sustained the demurrer with leave to amend. The court found the Tribes failed to cure their lack of standing, and the newly added Tribe Entities and Tribe Members did not adequately plead their own standing.As to the public nuisance claim, the court found: (1) The FAC failed to sufficiently plead standing for the Tribes and Tribe Entities, since they are not among the designated representatives to bring a public enforcement action and, as governmental entities, they are not a “person” with standing to sue on their own behalf. The allegation that the Tribe Entities “lost ‘tribal revenue,’ suggest[ed] [they] are not a private person.” (2) The FAC failed to allege that all plaintiffs suffered from the same harm as the public. It “concedes the gaming undertaken by the … [T]ribes is ‘limited geographically’ to ‘Indian lands,’ whereas the [C]ardroom [D]efendants are located ‘much closer to the residence of many of their customers.’” The court further found the Tribes “cannot share the public harm since the reservations are ‘remote’ and ‘not near’ the locations of defendants' cardrooms” and, as alleged, the Tribe Members reside in locations “from San Diego to Santa Barbara, with many … residing hundreds of miles from many of the cardrooms.” (3) The FAC failed to allege sufficient public harm. (4) The FAC failed to allege the Tribe Entities and Tribe Members suffered any special harm. It “does not plead direct financial losses suffered” by these plaintiffs, rather it alleges the Cardroom Defendants' actions “resulted in the loss of ‘tribal’ revenue.”As to the UCL claim, the court found: (1) The Tribes and Tribe Entities lack standing for the same reasons that defeat their public nuisance claim. The court determined the new allegation that the Tribes are also each “a separate organized community of persons of Indian descent” does not confer standing. (2) The FAC failed to allege the Tribe Entities and Tribe Members “‘lost money or property as a result of unfair competition,’” since these plaintiffs did not allege direct financial losses and there was no alleged connection between the Tribes' purported economic injury and these plaintiffs.As to the claims for injunctive and declaratory relief, the trial court concluded article IV, section 19(e) is not self-executing or directly judicially enforceable and, therefore, Plaintiffs necessarily sought enforcement of article IV, section 19(e) through the UCL claim, which failed for lack of standing. The court also concluded that Plaintiffs failed to demonstrate a declaratory relief action may be used by private parties in a civil action to enforce criminal statutes, including Penal Code section 330.11. Finally, the trial court found the tortious interference claims asserted by the Chumash Band failed because the FAC did not adequately allege a breach or actual disruption of the gaming compact between the Chumash Band and the State of California.C. Second amended complaint and demurrerPlaintiffs then filed the SAC at issue in this appeal, which asserts the same causes of action against the same defendants. The SAC deleted the allegations that the Tribes had “inherent sovereign authority” and were entitled to “tribal” economic development and “strong tribal government.” It also replaced all references to lost “tribal revenue”—previously “governmental revenue” in the FAC—with lost “[g]aming [r]evenue,” and deleted the allegation that “every dollar of lost gaming revenue is a dollar lost … in … tribal programs and services.”The SAC added that Penal Code section 11225, subdivision (a)(1) “declares illegal gaming of the type the [Cardroom Defendants] offer to be a nuisance, such that it is presumed to be harmful to Californians as a whole,” and alleges it to be a nuisance per se. It now requests a judicial declaration that “Defendants are operating illegal gaming within the scope of Penal Code § 11225(a)(1)” as part of the declaratory relief claim.As to specific harms to Plaintiffs, the SAC alleges that “Plaintiffs,” generally, “underperformed” and experienced “little growth” as compared to other jurisdictions offering similar gaming operations, because the Cardroom Defendants' illegal gaming “divert[ed] revenue from lawful gaming of the type only [the Tribe] Entities and those similarly situated may offer.” Having changed all references of “tribal revenue” to “[g]aming [r]evenue,” the SAC further alleges that all gaming revenue must be used for funding government operations, providing for the general welfare of the tribe and its members, promoting economic development, making charitable donations, or funding local government agencies, pursuant to the Revenue Allocation Plan. Accordingly, the SAC asserts, “each dollar of [g]aming [r]evenue is allocated to Plaintiffs and for Plaintiffs' benefit.” This last allegation replaced the FAC's assertion that “eve
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