Cushion Track Defendants Seek Dismissals
by Ryan Conley
Date Posted: 8/19/2008 3:28:56 PM
Last Updated: 8/20/2008 4:17:04 PM

Defendants in the lawsuit over Santa Anita Park’s troubled synthetic surface have filed motions asking a California federal court to dismiss the action against them for various reasons.

Cushion Track Footing and other affiliated defendants filed the motions Aug. 18 as initial responses to claims by the Los Angeles Turf Club that the company failed to properly install, maintain, and then repair the surface originally installed on the Santa Anita main racing oval. Track officials canceled several days of racing during the 2007-08 Santa Anita meet following heavy periods of rain, blaming the lost days on improper draining of the Cushion Track surface.

The Los Angeles Turf Club, which operates Santa Anita as a subsidiary of owner Magna Entertainment Corp., asks for at least $8.4 million in damages and other awarded compensation to be determined at a jury trial.

The defendants’ motions don’t specifically address the charges made by the Los Angeles Turf Club, which include breach of contract, breach of warranty, and fraud, among others, but for the most part ask the court to dismiss the lawsuits based on legal grounds.

Defendants Philip Bond and Paul Harper, who admit they are directors of Cushion Track Footing, claim they are residents of the United Kingdom, but merely acted as “agents” in the original Santa Anita deal, and should be dismissed for jurisdictional reasons. Equestrian Surfaces International and Equestrian Surfaces USA, which are described by the plaintiff as “alter ego” companies of Cushion Track Footing, claim in part they were not party to the contract signed for the surface.

“Plaintiff does not allege that either (of the companies) made any promises under the contract or otherwise provided any service under the contract, because such facts do not exist,” the motion said of Equestrian Surfaces International and Equestrian Surfaces USA, which include Bond and Harper as part of their management teams.

Cushion Track Footing in its separate motion doesn’t seek to be completely dismissed from the lawsuit, only from the fraud charges, calling them “vague and ambiguous.”

“Because Plaintiff’s claim of fraud is premised on broad and conclusory allegations, it should be dismissed with prejudice,” the motion said. “Cushion Track cannot reasonably prepare a response because plaintiff’s (complaint) is vague and ambiguous.”

Attorneys representing the various parties couldn’t immediately be reached for additional comment.

The Los Angeles Turf Club originally filed the lawsuit in early May, but has since offered two amended complaints. In its most recent amended complaint filed Aug. 8, the Los Angeles Turf Club claims "a unity of interest and ownership" exists among the defendants, and that Cushion Track Footing was used as a "shell," to transfer to it "existing liabilities."

"Thus, adherence to the fiction of the separate existence of Cushion Track would sanction fraud and promote injustice," the pleading claimed.

Documents filed on behalf of the defendants indicate their attorney informed the Los Angeles Turf Club's attorney of intended arguments for dismissal.

The Santa Anita surface is under more intense scrutiny by racing since it is the scheduled site of the next two Breeders’ Cup World Championships. Owners of certain high-profile runners, including defending Horse of the Year Curlin, have said they plan to skip the Breeders’ Cup, in part because of concerns about the track’s surface.

The Los Angeles Turf Club claims it spent $5.2 million for almost 20,000 tons of Cushion Track material in April 2007; nearly $1.4 million on repairs in December; and then, “because of the defendants’ unwillingness and/or inability to resolve the defects in the track material,” an additional $1.8 million on modifications performed by another synthetic surface supplier, Pro-Ride.

The track closed July 11 for further repairs, and Pro-Ride is in the process of revamping the main oval with its own material. The Oak Tree Racing Association meeting at Santa Anita begins Sept. 24. The Breeders’ Cup, which will be run at the track Oct. 24-25, will be the first Breeders’ Cup run on a synthetic surface.


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