Cushion Track Lawsuit Dismissal Denied

Cushion Track dismissal requests denied by judge.

The federal lawsuit against Cushion Track and affiliates over the former synthetic racing surface at Santa Anita Park is geared to go forward after a judge recently denied most of the defendants’ request for dismissal.

U.S. District Judge Florence-Marie Cooper, who is presiding over the case filed in May by Santa Anita’s operating company, the Los Angeles Turf Club, denied all but one dismissal request made in August by the defendants.

The LATC is seeking a minimum of $8.4 million in damages for what it claims was the faulty installation, maintenance, and repair of the main Santa Anita surface. The defendants, which also include affiliate companies of Cushion Track and company directors Philip Bond and Paul Harper, asked for most charges of the lawsuit to be dismissed on mostly jurisdictional grounds.

An attorney representing the LATC claims the judge’s rulings limit what Cushion Track can do in way of fighting the lawsuit.

“There is no dispute that (the surface) didn’t work,” said attorney Richard B. Specter, referring to drainage problems experienced during rainy weather. “They represented that the surface would work at Santa Anita. There is no question that it didn’t. And we saw this weekend that Pro-Ride works.”

The track has been overhauled to a Pro-Ride synthetic surface and was ready for the Breeders’ Cup World Championships, which were run under dry, sunny conditions at Santa Anita Oct. 24-25.

Choosing to first file motions to dismiss instead of formal answers to the LATC complaint, the defendants have yet to either deny or admit the specific charges still active in the lawsuit, including breach of contract, breach of express warranty, breach of implied warranty, and fraud. An additional claim of negligence by LATC was dismissed by Cooper, who ruled all the allegations were covered within the context of the contract with Cushion Track.

An attorney representing the defendants did not immediately respond to requests for comment. The defendants indicated in one earlier court document that they might file cross-claims against other parties, a group believed to possibly include suppliers and contractors involved in the development of the original surface.

Specter said there are more monetary damages pending than just the base claim of $8.4 million, which represents the amount the lawsuit claims was paid for 19,375 tons of material, installation costs, and attempted repairs of the Cushion Track surface.

“We lost racing days last year,” he said. “The Cushion Track affected attendance, it affected handle, it affected the whole reputation of the track. Now we are cleaning it all up.”

Specter said LATC has also funded the renovation to the new Pro-Ride surface, but declined to reveal the involved costs. LATC is a subsidiary of Magna Entertainment Corp.

Fraud charges in the lawsuit are leveled against Bond and Harper, who argued in motions they should be dismissed for jurisdictional reasons because they had minimal business dealings in California. Cooper ruled against the plea, claiming the complaint carried “sufficient specific allegations regarding fraudulent misrepresentations or omissions made in California or directed into California.”