Cushion Track May Add Defendants to Case

Company may countersue in lawsuit over Santa Anita surface.

Cushion Track Footing and affiliated defendants have indicated in a recent court filing that they may countersue certain parties in the federal lawsuit over Santa Anita Park’s original synthetic surface.

In a joint report filed electronically just one day before the Sept. 24 opening of the Oak Tree meet at Santa Anita, attorneys for both sides indicated the named defendants may file a counterclaim and third-party claim in the matter.

An attorney representing the Los Angeles Turf Club, a subsidiary of Magna Entertainment Corp., said he doesn’t believe the countersuits will involve the plaintiff, which in May filed a lawsuit against Cushion Track over alleged mishandling of the original synthetic surface.

“We don’t anticipate there is a counterclaim pointing the finger at the Los Angeles Turf Club that we did anything wrong,” said Los Angeles-based attorney Richard B. Specter.

The Los Angeles Turf Club, which operates Santa Anita as a subsidiary of MEC, asks in its lawsuit for at least $8.4 million in damages and other compensation for Cushion Track's alleged failure to properly install, maintain, and repair its original synthetic surface. The track has since been overhauled by a supplier, Pro-Ride, in anticipation of the Oak Tree meet and subsequent running of the Oct. 24-25 Breeders' Cup World Championships at Santa Anita.

Grounds for countersuing weren't detailed in the report, and an attorney representing the defendants didn't immediately respond to requests for comment. But the report suggests the defendants will seek through legal means evidence on several issues, which may incorporate the basis for counterclaims, possibly against contracted groups and individuals not affiliated with Cushion Track or Santa Anita.

"Defendants intend to seek discovery on, among other topics, testing of the racetrack and all track-related materials, installation of the artificial track, plaintiffs' failure to mitigate damages, conversion of defendants' property, and the liability of other parties," the report said.
Cushion Track and alleged "alter-ego" affiliate entities Equestrian Surfaces International and Equestrian Surfaces USA have previously filed motions of dismissal in the case, as have company directors Philip Bond and Paul Harper.

The Los Angeles Turf Club indicated in the report it intends to seek discovery on, among other topics, "the representations made by the defendants, and defendants efforts to resolve the problems with the artificial track."

The report indicated settlement negotiations per court guidelines have begun, but the parties agree discussions "will be more productive" after additional parties are named.

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 defendants have not officially responded to the allegations of the lawsuit, and have thus far asked for dismissals of the case for various reasons, including jurisdiction of the court.