APPEAL from a judgment of the Superior Court of Los Angeles County, Conrad R. Aragon, Judge. Reversed. (Los Angeles County Super. Ct. No. BC344876).
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PUBLICATION
Plaintiff and appellant Jerry Jamgotchian appeals from a judgment following an order granting summary judgment in favor of defendant and respondent George Slender. Jamgotchian, the owner of a horse named John's Kinda Girl (JKG), contends a triable issue of fact exists as to whether Slender, a racing steward, is liable for trespass to chattels based on his actions preventing Jamgotchian from retrieving JKG from the Del Mar Race Track grounds and requiring that the horse be raced against Jamgotchian's wishes. We reverse, holding that triable issues of fact exist and no immunity applies to Slender's actions.
FACTS AND PROCEDURAL BACKGROUND
Slender's Summary Judgment Motion
On December 21, 2005, Jamgotchian filed a complaint against Slender and Mark Glatt, JKG's trainer, for trespass to chattels and injunctive relief based on allegations that they raced JKG against his express instructions. An amended complaint was filed on January 30, 2006. On September 14, 2006, Slender filed a motion for summary judgment on the grounds that Jamgotchian could not establish the elements of trespass to chattels and Slender had immunity under Government Code section 820.2. On November 14, 2006, Jamgotchian filed an opposition to the motion for summary judgment on the grounds that Slender acted outside his authority, intentionally interfered with Jamgotchian's possession of JKG, and no immunity applied.
The undisputed evidence submitted in connection with the summary judgment pleadings showed the following facts. Slender has been a racing steward appointed by the California Horse Racing Board (CHRB) for more than 33 years. Jamgotchian is licensed by the CHRB and owns more than 100 thoroughbred race horses, including JKG.
In August 2005, Jamgotchian and Glatt discussed potential races for JKG. They preferred a race scheduled to be held at Del Mar on August 17, 2005. Their second choice was a stakes race in Seattle, Washington on August 21, 2005, for which JKG had been nominated. Their third choice was a stakes race at Del Mar on September 1, 2005. Their fourth choice was a race scheduled to be held at Del Mar on August 14, 2005.
On August 12, 2005, Glatt went to the racing secretary's office and spoke with Assistant Racing Secretary Rick Hammerle. Glatt explained that he wanted to enter JKG in the August 17 race, but the race did not yet have enough horses entered to go forward. He asked about conditionally entering JKG in the August 14 race.
The deadline to request to withdraw a horse from a race is called the "scratch time." The scratch time for the August 14 race was 9:30 a.m. on August 13, 2005. In general, after the scratch time has passed, a horse may not be entered in another race unless the horse is excused from the first race by the stewards. However, a horse may be scratched from a race and entered into a stakes race without obtaining the permission of the stewards. Glatt would not know whether the August 17 race was going forward before the scratch time for the August 14 race.
In order to get race cards filled and generate additional revenue for the racetrack and the horsemen, it is a long-standing practice of the racing secretary's office to solicit and accept "provisional" entries that allow the licensee to scratch a horse from the race. The racing secretary is a Del Mar track official and not a CHRB employee. The racing secretary's office does not represent the CHRB. However, when the racing secretary's office has accepted a provisional entry, the stewards routinely permit the licensee to scratch the horse.
Hammerle told Glatt that the racing secretary's office would contact the stewards and make arrangements for a provisional entry. If the August 17 race did not fill, then JKG would stay in the August 14 race. Hammerle did not contact the stewards, because he did not think the August 17, 2005 race had any chance of going forward. If it did fill, Hammerle felt confident that he could explain the situation to the stewards and persuade them to scratch JKG on the entry day in favor of the later race. Therefore, the conditional entry was not discussed with or approved by any of the stewards.
On August 14, 2005, Slender was one of three stewards on the board of stewards which supervised the horse racing meeting at the track. He was the duty steward, which meant he reported early and was responsible for handling entries and scratches before the other stewards arrived.
At 9:30 a.m., Jamgotchian told Glatt that he wanted JKG withdrawn from the August 14 race in order to enter JKG in the stakes race in Seattle. Glatt called and spoke to Slender to request a scratch of JKG from the race. Glatt said JKG had no physical infirmities and was sound and fit to race.
Slender stated: "We are not going to allow any horse owner to control our multi-million-dollar business. You're obligated to run. If you do not race the horse, you are... being threatened with a 60-day suspension of your license." Glatt responded with disbelief and tried to explain the situation Slender was putting him in, but Slender was steadfast in his decision.
At 10:30 a.m., Jamgotchian spoke to Racing Secretary Tom Robbins. Another horse had already scratched from the August 14 race and Robbins wanted to keep the race intact as best he could, but Robbins found Jamgotchian's reasons for withdrawing JKG compelling. Robbins agreed to tell the stewards that the racing office would find the scratch acceptable, but he warned Jamgotchian that it was the stewards' decision whether to scratch the horse.
At 10:45 a.m., Robbins called Slender. Robbins explained the arrangement discussed between Glatt and Hammerle. He also explained that although the August 17, 2005 race had failed to fill, Jamgotchian and Glatt still wanted to scratch JKG in order to run in a race the following weekend in Seattle. He told Slender that the racing department would find it acceptable if the stewards withdrew JKG. Slender responded that JKG would be running in the August 14 race. Robbins told Jamgotchian that Slender would not permit a scratch.
Jamgotchian and Glatt called Slender again. Based on information from Glatt, Jamgotchian told Slender that JKG had an injured heel that would be better with a few more days of rest. JKG was coming off the veterinarian's list for a similar injury. Slender responded that the horse was obligated to race, he would not permit a veterinarian's scratch because Glatt had told him earlier that the horse was fine, the horse was ready to run, and Slender had ordered her to run. Jamgotchian explained the myriad reasons why he believed the posted scratch time did not apply, insisted that the horse was not going to race at Del Mar that day, and stated that he would remove JKG from the Del Mar grounds before the race.
Slender told Glatt that if he did not saddle and race JKG that day, he would be immediately fined and immediately have his trainer's license suspended for a period of 30 to 60 days. Glatt told Slender that any suspension would effectively put him out of business. Slender said that he would immediately fine Jamgotchian and suspend his owner's racing license, as well as bar all of his horses from racing anywhere in California, which would effectively put Jamgotchian's racehorse operation out of business in California. As a long-time licensee, Jamgotchian was aware that a steward acting alone may not lawfully impose punishment. Even acting as a board, the board of stewards may not impose a fine or suspension on a licensee without first conducting a full and impartial hearing with a court reporter, providing the licensee with notice of the hearing and an opportunity to be heard. Jamgotchian told Slender that he was being unfair to Glatt and asked that Slender not fine or suspend Glatt, because Jamgotchian had made the determination to scratch the horse. Slender repeated his threats. Slender told Glatt that race track security would not permit the horse to leave the grounds.
Slender told the other stewards on the board that Jamgotchian wanted to run JKG in a stakes race in Seattle. He did not tell them that the horse had been conditionally entered in a race later in the week at Del Mar. He did not tell them that the racing secretary had called him and said the racing department would find it acceptable if the stewards scratched the horse because of the provisional entry. He told them that he said there would possibly be a penalty imposed if Glatt did not run the horse. The stewards discussed the request, found no valid reason to scratch JKG, and unanimously voted that the horse was obligated to race under California Code of Regulations, title 4, section 1602.*fn1
At about 11:00 a.m., Slender called CHRB investigator Douglas Aschenbrenner and asked him to prevent Jamgotchian from taking JKG off the Del Mar grounds. Slender told Aschenbrenner that Jamgotchian wanted to scratch JKG and run the horse somewhere else, but he did not want that. Slender said to go to the barn to make sure the horse did not leave the grounds. Aschenbrenner asked, "How far [do] you want me to go with this?" Slender paused and said, "We want the horse to race." Aschenbrenner asked, "George, why don't you just let him scratch and fine him the $300?" $300 was the typical fine imposed by the stewards for a late scratch. Slender replied, "No. I'm going to suspend him for 30 days." Aschenbrenner told Slender that the investigators "don't normally get involved with that," but he would go to the barn. Slender instructed him to make sure that the horse was raced.
Aschenbrenner went to the barn to confirm that the horse was still stabled at Del Mar. After Aschenbrenner left the barn, he contacted the security guard at the gate to ensure that the horse did not leave the Del Mar grounds, in accordance with Slender's instructions. He also asked the racetrack staff to post a security guard at Glatt's barn.
Jamgotchian and Glatt decided that in order to protect Glatt from a potentially devastating suspension, Jamgotchian would terminate Glatt, effective immediately. Jamgotchian called trainer Peter Miller. Miller has the use of a trailer and occasionally hauls his own horses. Jamgotchian asked Miller to pick up JKG, take her to San Luis Rey Downs, and train her.
At noon, Jamgotchian called Glatt and said, "I'm officially terminating you, and I'm going to be having a van company come and pick my horse up." He faxed Glatt a notice of termination, effective immediately, which stated that he was making arrangements to have JKG shipped out of Del Mar immediately. Jamgotchian faxed a copy of Glatt's termination notice to the stewards. Glatt accepted the termination and agreed to prepare JKG for departure from the Del Mar grounds. Once a trainer is terminated, the trainer's insurance no longer covers the jockey ...