Calif. Owner Wins Appeal in Slender Suit

Court says a steward cannot take preemptive action to deny scratching of a horse.

A California appeals court has ruled that a racing steward does not have the right to take preemptive action against an owner who wants to scratch his horse even if the owner's request violates rules governing late withdrawals.

The written decision from the state's Second Appellate District reversed a trial court judge's ruling that had granted immunity to the steward, George Slender, for requiring that a horse entered in a 2005 race at Del Mar to run even though it was against the wishes of the horse's owner.

The original Los Angeles County Superior Court lawsuit filed by horse owner Jerry Jamgotchian against Slender contends that the steward, acting as a representative of the California Horse Racing Board, overstepped his authority when he ordered that Jamgotchian's horse, John's Kinda Girl, compete in the seventh race at Del Mar on Aug. 14, 2005. Jamgotchian claims he sought to scratch the filly, who had been recovering from a heel injury, in order to give her additional time to run in a stakes race at Emerald Downs that was to take place two weeks later.

The withdrawal request, though, came a full day after the designated scratch time, and Slender, the on-duty steward on the morning of the race, refused to grant it. Jamgotchian and his trainer, Mark Glatt, allege that Slender repeatedly threatened to suspend their licenses if they didn't run John's Kinda Girl. Jamgotchian further contends that Slender prevented removal of the horse from the Del Mar grounds by stationing a guard at the horse's stall and directing gate security to not allow a horse van hired for the purpose into the barn area.

In essence, Jamgotchian alleges, Slender took possession of his horse, or in legal terms, had committed a "trespass to chattel."

Writing for a three-judge panel of the appellate district's fifth division, Justice Sandy R. Kriegler said: "The regulatory scheme allows the stewards to discipline any person responsible for the failure of any horse to start in a race when the starting was obligatory. The stewards may take disciplinary actions after the failure to run occurs, limited to fines, suspension or exclusion of the person responsible. But the regulations do not authorize any preemptive action by the stewards to prevent the failure of a horse to start. There is no discretion vested in the stewards to bar an owner from retrieving his or her horse before a race is run."

The trial judge had found that Slender was protected by a CHRB rule that gave him discretion as a steward and that Glatt, who saddled John's Kinda Girl for the race (even though he had been fired that morning by Jamgotchian), was not acting as Slender's agent. In overturning the summary judgment, the appellate court, in its 21-page brief, said those were issues that a jury should decide.

The rule in question states: "Should any case occur which may not be covered by the Rules and Regulations of the Board or by other accepted rules of racing, its shall be determined by the stewards in conformity with justice and in the interest of racing."

Kriegler said the rule did not apply here, finding instead that "an owner's late withdrawal of a horse from a race is expressly covered in the rules and regulations."

Ronald S. Caswell, the attorney for Jamgotchian, claims the decision has implications not only for California horse racing, but for government as well.

"This is a big decision because it says that if a government employee acts outside the scope of his authority, he can be held liable for it," he said. 

Caswell said that in this instance, Slender should have allowed Jamgotchian to scratch his horse and hold a disciplinary hearing afterward.

In that event, he said, Slender "had the right to suspend, fine and exclude."  

State deputy attorney general Albert Y. Muratsuchi, who has represented Slender in the proceedings, did not return a phone message seeking comment on the decision, or whether the office would appeal to the California Supreme Court.

In his brief in support of the the original ruling, Muratsuchi said that Jamgotchian, by entering John's Kinda Girl, had submitted to Slender's jurisdiction over conduct of the race. He argued that Slender had acted within the scope of his authority under CHRB rules, adding that Glatt, even though he had been "fired" by Jamgotchian, remained the trainer of record and was the one responsible for racing the horse over his client's objection.

Caswell said the case will be sent back to Los Angeles County to be reassigned. He said he expects the suit to go to trial later this year.

Kirk Breed, the CHRB's executive director, said that the attorney general's office, in consultation with the agency, would determine whether to appeal further. He said the board would be briefed on the case in closed session during its monthly meeting Feb. 26 at Santa Anita.

"The board has made a decision to back our steward," he said. "We can take it to the California Supreme Court or it goes back to superior court for trial. One way or the other, it goes back to trial; we'll call our witnesses and they'll call theirs. Nothing's going on with this deal so far except that we're spending a lot of money on lawyers. I'd just as soon go to trial and get this resolved."

Slender, a California steward for more than 30 years, was employed as an independent contractor and was sued individually, along with Glatt. The CHRB is not a defendant, raising the question of who would be ultimately liable for damages were Jamgotchian to prevail. Breed said he believed the CHRB would take responsibility if there are any damages.

John's Kinda Girl ran seventh of eight at odds of 28-1 in the Del Mar race. Jamgotchian contends she injured an ankle in the race and was never the same afterward. He seeks actual damages of about $50,000 for infliction of intentional hardship, plus an unspecified punitive award.

The lawsuit, filed in December 2005, launched Jamgotchian as an extremely vocal critic of the CHRB, in particular Ingrid Fermin, then the executive director, and former chairman Richard Shapiro. Jamgotchian has filed several public record request complaints against the CHRB in the past few years and claims to have won more than $70,000 from the agency in court costs.

"If necessary, this case will re-write the rules of California horseracing as the CHRB's current case position is that CHRB Rule 1530 actually allows the stewards to take and race an owner's horse, as they did in my case," Jamgotchian said in an e-mail. "My goal is to make sure that this doesn't happen again to any other California horseowner.
"I'm very happy that the Court of Appeal has issued a strong warning to the CHRB and I hope they listen. If not, this case will go to trial and the court will make the final decision on who actually 'owns' the horse and forever address this bizarre CHRB rule interpretation."