2018-00233466-CU-PO

George W. Luster vs. State of CA, CA Horse Racing Board

Nature of Proceeding: Hearing on Demurrer to Plaintiffs Amended Complaint

Filed By: McDaniel, Shanna M.

APPEARANCE REQUIRED.

At the time of hearing, counsel and the party in propria persona shall address whether the court should construe the third cause of action in the first amended complaint (FAC) as a petition for writ of mandate and transfer the matter to a writ department.

The demurrer of Defendants State of California and California Horse Racing Board (Board) and Board of Stewards (Stewards) (collectively “Defendants”) to the FAC is SUSTAINED in part and OVERRULED in part.

Defendants’ request for judicial notice is GRANTED.

In its discretion, the court has considered Plaintiff George L. Luster’s (Luster) opposition notwithstanding any untimeliness. Future failures to comply with statutory deadlines, however, could result in adverse rulings.

Overview

Following the 45-day suspension of his horse racing licenses, Luster filed this case as a damages action. The Stewards suspended Luster’s licenses after he tested positive for cocaine use. (See FAC, Exhs. 2, 3.) Luster disputes the validity of the test. He

alleges that he never used cocaine, that the only drugs he took were prescribed, and that his subsequent samples tested negative for illegal drugs. In addition, Luster alleges that the laboratory that tested the cocaine-positive sample did not follow proper procedures, i.e., by failing to contact him and inquire if he was taking any medications that could have triggered a false positive. Based on these allegations, Luster advances causes of action for breach of fiduciary duty, “General Tort and Negligence,” and “Violation of California Rules and Regulations for Horse Racing Board.” Defendants demur, and Luster opposes.

Defendants demurred to Luster’s original complaint, which contained causes of action denominated “Intentional Tort” and “General Negligence.” Defendants successfully argued both that Luster had failed to allege compliance with the Government Claims Act and that he had failed to allege the violation of any statute or other enactment supporting a tort action against public entities. Leave to amend was granted.

Discussion

Timeliness

The court rejects Defendants’ lead argument, viz., that this action is barred. Defendants argue that Luster was required to challenge the suspension by way of writ of mandate within 30 days of the Board’s final action. (See B&P Code § 19463.) Given that the Stewards suspended Luster’s licenses no later than 3/31/18, (see RJN, Exh. A [original suspension]; FAC, Exh. 2 [amended suspension]), and that Luster did not commence this action until 5/22/18, Defendants contend that the action is time-barred.

Luster counters that the writ action prescribed in § 19463 is optional rather than mandatory. He also argues that he was entitled to bring an action in court within 60 days, not with the 30-day period in § 19463.

The court continued the hearing and requested supplemental briefing on the question whether, to trigger the 30-day limitations period in § 19463, the Board was required to take action on the Steward’s suspension ruling. Although Stewards are authorized to suspend licensees, (B&P Code § 19440(b); 4 CCR § 1528), the 30-day limitations period contemplates final action by the Board. Furthermore, Defendants concede that Luster appealed the Stewards’ suspension, (RJN, Exhs. B, C), yet there is nothing in the FAC or judicially noticeable materials establishing that the Board took action on the appeal.

In their supplemental brief, Defendants note that Luster asked the Board to stay the suspension when he took his appeal. (See RJN, Exh. C.) In a written order dated 3/28/18, the Chairman of the Board denied the stay. (See id., Exh. D.) But the materials before the court do not disclose whether the Board ever disposed of the appeal.

Citing Capitol Racing, LLC v. California Horse Racing Board [Capitol Racing] (2008) 161 Cal.App.4th 892, 898, Defendants suggest that the appeal must be deemed dismissed because the Board never took action on it. Even if the suggestion were meritorious, it would not fix the date of the dismissal, and the date is the critical fact at this juncture. Furthermore, the notion that the Board dismissed the appeal by inaction appears to lack merit. In their supplemental brief of 1/07/19, Defendants cite 4 CCR §

1761 as the provision authorizing Luster’s appeal to the Board. Section 1763 appears in the same article and reads, “[t]he Board shall issue its decision upon an appeal in writing and such decision is subject to review by the court having

jurisdiction.” (Emphasis added.)

Capitol Racing is distinguishable. The principal question in that case was whether the 30-day limitations period in B&P Code § 19463 applied to the licensee’s suspension, as opposed to the 30-day period in Government Code § 11523. The Court of Appeal concluded that § 19463 supplied the limitations period. Unlike § 11523, under which the 30-day period commences after “the last day that reconsideration can be ordered” or “30 days after delivery of the record,” § 19463 provides a 30-day period commencing immediately upon the Board’s final action. Capitol Racing, however did not involve any action by Stewards or an appeal from such action.

The court notes Luster’s allegation that the 45-day suspension of his licenses has ended. (FAC at 3:26-28.) An appeal directed at the suspension may well be moot. The Stewards’ suspension ruling, however, included additional terms that appear to be ongoing. The Stewards placed Luster on probation “for the term of his license” and required him to sign an agreement to continue drug testing through April of 2019. (See FAC, Exh. 4.) Hence, the completion of Luster’s 45-day suspension does not establish that the Stewards’ ruling has become a final action under B&P Code § 19463.

Finally, the court is aware of Luster’s characterization of the Stewards’ amended suspension ruling as Defendants’ “Official Ruling” for purposes of calculating the limitations period. (See Opp. at 2:25-26.) Luster offers this characterization in the course of arguing that he had 60 days in which to seek judicial review, rather than 30 days under § 19463. The court rejects Luster’s 60-day argument in light of § 19463 and Capitol Racing, supra. Moreover, the court does not accept his characterization of the amended suspension ruling as a concession that the Board somehow took final action on the suspension through the Stewards’ amended ruling. As Defendants observe, Luster was entitled to appeal the Stewards’ ruling to the Board. Furthermore, the regulations required the Board to issue its appellate decision in writing. Perhaps Luster construed the Stewards’ amended ruling as a final action because the amended ruling followed the Board’s denial of his stay request. The court’s review of the record, however, does not support a determination that the amended ruling incorporated or otherwise responded to the denial of Luster’s stay request. Rather, as Defendants observe, the amended ruling was issued to enumerate Luster’s licenses accurately. It also appears to have corrected an inversion of Board Rule § 1528, which appeared in the original suspension ruling as Board Rule “1582.” (Compare RJN, Exh. A with FAC, Exh. 3.)

In sum, Defendants correctly assert that § 19463 supplies the applicable limitations period. Because the allegations and judicially noticeable materials do not fix the date on which any Board action may have become final, and thus when the limitations period commenced, the court cannot conclude as a matter of law that Luster’s action is time-barred. As a consequence, the court does not sustain the demurrer on such a ground.

The First Cause of Action for Breach of Fiduciary Duty

The demurrer is SUSTAINED without leave to amend.

Absent an allegation that a public entity violated a statute, regulation or other enactment, a plaintiff may not advance a civil suit against the entity, at least on the theory that the entity is directly liable. (Compare County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 637-638 [public entity may be held directly liable for violating an enactment imposing a mandatory duty] with Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1382 [public entity can be held vicariously liable for its employees’ wrongful acts or omissions].) Luster’s complaint does not advance a theory of vicarious liability. Hence, the demurrer to the first cause of action must be sustained unless Luster has tendered an enactment imposing a mandatory duty.

Luster cites several enactments in the allegations supporting his first cause of action. He cites 4 CCR § 1498, which authorizes the Board and Stewards to subject licensees to physical examinations that include drug screenings. Subdivision (c) of § 1498 provides that “[t]he Board or the stewards may require that any jockey, apprentice jockey or driver be re-examined at any time, and the Board or the stewards may refuse to allow any jockey, apprentice jockey or driver to ride or drive until he or she has successfully passed such examination.” The Stewards did not cite § 1498 as a basis for Luster’s suspension. Rather, they cited 4 CCR § 1489, which authorizes suspensions for possession or use of narcotics or dangerous drugs. Nonetheless, Luster appears to contend that, because he tested negative for illegal drugs after an initial test came back positive, § 1498 required Defendants to restore all racing privileges immediately. The court disagrees.

Section 1498 allows Defendants to condition jockeying and driving privileges upon passage of an examination that the licensee previously failed. It does not require Defendants to allow participation even though the licensee has been suspended under another regulatory provision, including the anti-drug provisions in § 1489. Consequently, § 1498 does not impose a mandatory duty supporting a tort cause of action against a public entity.

Next, Luster cites art. IV, § 19b of the California Constitution as well as §§ 19420, 19440, 19460 and 19562 of the B&P Code. None of these enactments impose a mandatory duty that assists Luster. The constitutional section cited merely authorizes the regulation of horse racing in California. The cited sections of the B&P Code confer on the Board jurisdiction over horse racing, and impose general requirements upon horse racing licenses. There are no specific mandatory duties supporting direct liability against public entities.

Because Luster has not alleged an enactment supporting direct liability against Defendants, and because he has not alleged facts supporting Defendants’ vicarious liability, the demurrer to the first cause of action is sustained. Furthermore, although Luster requests leave to amend, he has failed to demonstrate that he can cure the pleading defect through amendment. (See Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 971 [it is the plaintiff’s burden to show how (s)he can amend the allegations to state valid cause of action].) Accordingly, leave to amend is denied.

The Second Cause of Action for “General Tort and Negligence”

The demurrer is OVERRULED.

In the allegations under the second cause of action, Luster cites 4 CCR § 1500.1. That section subjects jockeys and drivers to random drug testing. Subdivision (b)

reads, in relevant part:

Each urine specimen received from a jockey, apprentice jockey or driver shall be divided into two separate parts. One portion shall be designated as the official jockey/driver test sample and shall be tested by a Board approved official laboratory. The remaining portion of the specimen shall be known as the jockey/driver split sample and shall be available for testing at a Board approved independent laboratory upon the request of the individual who provided the specimen.

Luster alleges that Defendants violated subd. (b) by failing to split his sample. (See FAC at 9:22-24.)

Defendants do not dispute that § 1500.1 imposes a mandatory duty. In fact, they do not directly address § 1500.1 at all. Instead, they cite the Government Code for the proposition that public entities’ liability for elected officials’ intentional torts is limited.
Because the second cause of action is not an intentional tort, the citation is unavailing.

Finally, Defendants argue that Luster had not alleged all the elements of public-entity negligence, i.e., the breach of a mandatory duty causing harm. In their view, the allegations are impermissibly conclusory. However, Defendants do not specifically analyze the allegations in relation to § 1500.1, and the court declines to undertake the analysis in the first instance.

Uncertainty

The demurrer is OVERRULED.

The allegations are not so uncertain that Defendants cannot frame a response. Demurrers for uncertainty are disfavored and are only granted where the complaint is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2018), § 7:85, p. 7(l)-41, -42.)

Disposition

The demurrer to the first cause of action for breach of fiduciary duty, on the ground that the allegations fail to state a valid cause of action, is sustained without leave to amend.

The balance of the demurrer is overruled.