Judge: Curtis A. Kin, Case: 22STCP02434, Date: 2024-04-04 Tentative Ruling

Case Number: 22STCP02434    Hearing Date: April 4, 2024    Dept: 82

Petitioner Richard Baltas petitions for a writ of mandate directing respondent California Horse Racing Board (“CHRB”) to set aside the suspension of his license, or in the alternative, to give him credit for time served during the purported de facto suspension.

I.       Factual Background[1]

A.           Administration of Substance to Horse on Race Day

Corey Martinez, the surveillance manager for Santa Anita Park, monitors all the cameras in the stable areas of the park and coordinates third-party Lasix[2] for horses entered to race. (AR 692-95.) Lasix is given to entered horses at Santa Anita during the period between 4 and 4½ hours before they race. (AR 694-95.)

On May 8, 2022, Martinez monitored a horse named “Noble Reflection,” as it was the last horse of the day to be administered Lasix. (AR 693-94.) The horse was scheduled to race later that day, and petitioner was the horse’s trainer of record. (AR 261, 1687-88.) Martinez saw a male stable worker approaching the horse and administrating a substance to the horse’s mouth right before the Lasix team arrived. (AR 261-62, 693, 1687-88.) Martinez notified Safety Steward George Yniguez, who notified CHRB Investigator Jeanne Garrido. (AR 261-63, 694, 1687-88.) Yniguez recognized the male as petitioner’s assistant trainer, Martin Valenzuela. (AR 263, 1687-88.)

Investigator Garrido and Safety Steward Yniguez then visited petitioner’s stable at Santa Anita Park and requested Valenzuela’s presence. (AR 263-64, 1687.) While they waited for Valenzuela, Investigator Garrido and Safety Steward Yniguez searched the stable area and found a used syringe labeled “X-Treme Air Boost” inside an empty feed bag. (AR 263-67, 1687-88, 1690-96, 1719, 1723.) The syringe label had the name "Noble Reflection" written on it in black marker. (AR 264, 1687-88, 1694-95.) The plunger to the syringe was depressed. (AR 264, 267, 1694-96.) Garrido booked the syringe as evidence and had its substance tested at the Kenneth L. Maddy Laboratory at the University of California, Davis.[3] (AR 264, 274, 1688, 1725.)

Valenzuela arrived at the stable thereafter. (AR 267.) At first, he denied having administered any substance to Noble Reflection. (AR 267-69, 1687.) Investigator Garrido informed Valenzuela that he was caught on surveillance video injecting a substance into Noble Reflection’s mouth. (AR 268, 1687.) Valenzuela then admitted that he injected a treatment to the horse because it “bleeds.” (AR 269, 1688.) He explained that the treatment helps prevent horses from bleeding on race day. (AR 1688.) Valenzuela further confirmed that the treatment was a syringe of X-Treme Air Boost paste and that he discarded it in the feed bag next to the stall. (AR 269, 1688.) Moreover, he claimed that Noble Reflection was usually given the X-Treme Air Boost paste treatment at 48 and 24 hours prior to racing but injected the treatment on the horse on race day because “the horse needed it.” (AR 269, 1688.)

B.           Administration of Substances to 22 Other Horses on Race Day

Surveillance Manager Martinez reported his findings about Noble Reflection to Santa Anita’s management. (See AR 695-96.) Upon the park management's request, Martinez retrieved a list of all horses that were entered to race at Santa Anita Park for whom petitioner was the trainer of record, and reviewed footage as far back as the surveillance system had, focusing on the period when the horses were given Lasix. (AR 695-702, 1735-58, 1760-61.) Martinez discovered petitioner’s employees administering syringes of an unknown substance to 22 other horses on race day spanning from April to May 2022. (AR 701-02, 1760-61.)

Martinez created a chart showing all 23 horses that he discovered were given an unknown substance on race day, with the date and time when the syringe was administered to the horses, and the race placement of the horses that same day. (AR 696-703, 1760-61.) He also collected videos of the administration of Lasix and pre-race examinations given by the veterinarian. (AR 699.)

Martinez believed all 23 horses were administered a foreign substance with a syringe as opposed to having been administered an oral wash with water, explaining from his experience that trainers normally wash a horse’s mouth with a large metal syringe (whereas smaller plastic syringes were used for the 23 horses at issue) and that water would normally fall out of the horse’s mouth (which did not occur with respect to the 23 horses). (AR 703-04.)

C.           Interview with Petitioner and Assistant Trainer About Administration of X-Treme Air Boost

On May 9, 2022, CHRB Supervising Investigator Michael Barker took over the CHRB’s investigation from Investigator Garrido. (AR 295.) He requested and received the video surveillance of the 23 horses collected by Surveillance Manager Martinez and the chart. (AR 293-301, 1731-32, 1735-58, 1760-61.)

Investigator Barker interviewed Valenzuela on May 11, 2022 and recorded the interview with Valenzuela’s consent. (AR 301-04, 844-46, 1731-32, 2692-2703.) Valenzuela admitted that he administered the X-Treme Air Boost Paste to Noble Reflection on race day but that it was a mistake when he should have done it the day before. (AR 1732, 2694-95.) He further explained that petitioner instructed him to treat bleeding horses with the X-Treme Air Boost at 48 and 24 hours before race day. (AR 1732, 2696, 2698, 2700-01.)

On May 14 and 28, 2022, Investigator Barker interviewed petitioner in the presence of his then-counsel, Darrell Vienna, and recorded the interviews with their permission. (AR 304-09, 1732-33, 2665-85.) Petitioner stated that he ordered X-Treme Air Boost for his bleeder horses and that one tube was meant to be given to a horse four hours before racing. (AR 1733, 2669, 2671.)

D.           Administrative Complaint Against Petitioner

The CHRB filed and served a complaint on petitioner on June 21, 2022, charging him with: (1) 23 counts of violating Rule 1843.5 (Medication, Drugs and Other Substances Permitted After Entry in a Race); (2) 23 counts of Rule 1887(a) (Trainer or Owner to Inure Condition of Horse); and (3) one count of violating Rule 1902 (Conduct Detrimental to Horse Racing). (AR 1172; see also AR 43.)

The complaint that the CHRB filed and served on petitioner set a hearing date for July 1, 2022 before the Board of Stewards. (AR 1172.) However, on June 24, petitioner’s then-counsel (Darrell Vienna) requested the stewards grant a 30-day continuance from July 1 to July 31 “or any time thereafter convenient to the trier of fact and Complainant [CHRB].” (AR 1185-87.) The stewards granted the continuance request that same day. (AR 17.) Having not heard from petitioner’s then-counsel for several weeks, the stewards rescheduled the hearing on the complaint to August 3, 2022. (AR 1585.)

E.           Denial of Entry of Horses by Petitioner

On June 21, 2022 (before petitioner requested a 30-day continuance), the CHRB notified petitioner that it would appear ex parte before the stewards to request an order denying entry of all horses from petitioner during the pendency of the CHRB’s complaint. (AR 1588.) The next day, on June 22, the Board of Stewards held a meeting at which the CHRB requested an order under Rules 1542 and 1580, denying entry of all horses from petitioner for racing during the pendency of the complaint against him. (AR 1590-1620.) The stewards did not grant the CHRB’s request, believing it was premature because petitioner had yet to enter a horse for racing. (AR 1603-04.)

On June 28, 2022, the stewards refused entry of two horses that petitioner attempted to race on July 1 at Los Alamitos Race Course. (AR 1622.) The stewards relied on Rule 1542, which permits them to refuse the entry to any race upon a showing of good cause, and Rule 1580, which allows them to refuse entries of any person without notice. (AR 1622.) They found good cause for denying entry based on the allegations of CHRB’s complaint against petitioner, and the Legislature’s explicit intent for the CHRB to assure protection of the public. (AR 1622.)

F.           Appeal of Stewards’ Refusal of Entry

Around the same time, petitioner appealed the stewards’ decision denying entry and requested a stay of such decision pending his appeal to the CHRB. (AR 1624-25.) The CHRB’s chairman reviewed petitioner’s stay request and appeal, denied the stay request, and initiated the appeal proceedings with case no. SAC 22-0032. (AR 1627.) The CHRB designated a neutral hearing officer to adjudicate the administrative appeal. (AR 1629.)

Petitioner then filed a Petition for Writ of Mandate, Ex Parte Application, and Request for Temporary Restraining Order with this Court on June 29, 2022 to challenge the stewards’ refusal to enter petitioner’s two horses. The Court denied petitioner's Ex Parte Application, finding that a stay of the stewards’ refusal would be against the public interest. (AR 1632.) The Court scheduled an Order to Show Cause hearing for a preliminary injunction for July 28, 2022. (AR 1632.) However, on July 5, petitioner indicated he would not proceed with a request for a preliminary injunction, and the Court took the matter off calendar for July 28. (AR 1634.)

Later, petitioner’s current counsel (Steven Haney) requested the hearing officer continue the hearing on petitioner’s appeal of the stewards’ refusal of entry until September 11, 2022, because he was preoccupied with other trials. (AR 1636.) Petitioner’s counsel further stated that petitioner agreed “not to enter a horse under CHRB jurisdiction during the period of the requested continuance ….” (AR 1636.) The hearing officer granted the continuance and rescheduled it to September 20, 2022. (AR 1641.)

On September 14, 2022, petitioner and the CHRB stipulated to continue the hearing on petitioner’s administrative appeal of the stewards’ refusal of entry until after the CHRB’s complaint was heard and adjudicated by the stewards. (AR 1644.) Petitioner then withdrew his appeal on December 5, 2022. (AR 1666.)

G.           Further Continuance of Hearing on Complaint

On July 13, 2022, petitioner’s current counsel requested the Board of Stewards to continue the hearing on the CHRB’s complaint until September 2022 because he was preoccupied with other trials. (AR 1649-1653.) The CHRB did not oppose a continuance if petitioner agreed not to enter any horse for racing in California until the complaint had been resolved. (AR 1650.) Petitioner agreed not to enter any horse for racing within California and, as a result, the stewards continued the hearing to September 14, 2022. (AR 1657-58.)

The Board of Stewards heard the CHRB’s complaint on September 14 and October 11, 18, and 19 of 2022.[4] (AR 43.)

H.          Testimony of Petitioner Concerning Administration of Substances to Horses within 48 Hours of a Race

At a hearing before the stewards, petitioner testified that he learned about Rule 1843.5 sometime in January 2022 and claimed he told his employees, Baltazar Marroquin and Valenzuela, about the rule’s prohibition against giving any substance on race day. (AR 461-65.) In addition, petitioner testified that his employees knew that they could not administer any substance on race day. (AR 463-64.) Petitioner also admitted that Noble Reflection was given X-Treme Air Boost on race day. (AR 468-69.)

Petitioner stated that he and Valenzuela would purchase X-Treme Air Boost for the horses. (AR 485-86.) When petitioner purchased the product, he would leave it in his office and tell Valenzuela about the product and that the product should be given to his horses that bleed. (AR 486-87.) Petitioner explained that he purchased X-Treme Air Boost to help his horses’ well-being because they bled from Lasix. (AR 491-92, 574.)

With respect to petitioner’s knowledge of Rule 1843.5 and when X-Treme Air Boost was supposed to be given to his horses, petitioner claimed at the hearing that he knew about Rule 1843.5 before the Noble Reflection incident. (AR 611.) When interviewed by Investigator Barker, however, petitioner had said he was unaware of Rule 1843.5. (AR 466-67, 2669, 2672-73.) At the hearing, petitioner denied instructing his employees to give X-Treme Air Boost to his horses and at four hours before a race. (AR 480-82, 484-85, 487-88, 527-32.) However, he also testified that the X-Treme Air Boost tube suggests giving the substance to horses within four to six hours from an “event,” which includes a race, and that his employees were to follow the recommendation. (AR 493-94, 528-29.) Petitioner also had told Investigator Barker during his recorded interview that his horses should be given one tube of X-Treme Air Boost four hours before the race. (AR 2669.)

I.             Testimony of Foreman

Marroquin was Baltas’ foreman during April and May 2022. (AR 730-31.) Marroquin testified at a hearing before the stewards and admitted that he likely gave X-Treme Air Boost on race day to eight horses.[5] In addition, Marroquin admitted to giving sucralfate (an ulcer medication) to two additional horses on race day.[6]

Marroquin testified that he would give X-Treme Air Boost by syringe to petitioner’s horses that bled about 24 hours before racing and would discard the syringe afterwards most of the time. (AR 739-740, 743.) He also stated that petitioner never told him when to give the substances to horses that bled. (AR 741, 744.)

As to the five other horses he was captured on video administering a syringe,[7] Marroquin testified that he either gave them water (with which he filled the syringe in the wash rack room as opposed to the water bucket outside the horse’s stall) or did not recall the substance inside the syringe. For the horses to which Marroquin claimed he gave water, none of the surveillance videos showed water coming out of the horses’ mouths after the syringe administration. (See AR 1760-61, 1878, 1899, 1904, 1923, 2118, 2123, 2126; Exs. 25-26, 33-36, 42-43, 116, and 118-121 to AR.) Instead, the videos show the horses chewing and gumming their tongue after the syringe administration. (Exs. 25-26, 33-36, 42-43, 116, and 118-121 to AR.) Marroquin also admitted that X-Treme Air Boost is thicker than water and horses sometime will gum their tongue when given a substance thicker than water. (AR 826-27.)

J.            Testimony of Assistant Trainer

Martin Valenzuela was Baltas’ assistant trainer during April and May 2022. (AR 830-31.) Valenzuela testified at the hearing before the stewards and admitted that he gave X-Treme Air Boost on race day to four horses.[8] Valenzuela testified that X-Treme Air Boost was given to petitioner's horses to help reduce or prevent their internal bleeding. (AR 833-835.) Valenzuela stated that petitioner verbally told him to use X-Treme Air Boost for his horses that bleed at, inter

alia, 24 hours before the race. (AR 840-43.)

As for the two other horses with which he was caught on video with a syringe, Valenzuela testified that he did not administer a syringe to the horses but rather inspected the horses or cleaned their stalls.[9] Yet, with one horse (Moraweth), Valenzuela is seen on video discarding a syringe after exiting the horse’s stall. (AR 1760-61, 1971, 1976; Exs. 60-63 to AR.) Valenzuela was unable to explain why he threw away a syringe after visiting the horse if he did not administer the syringe on the horse. (AR 861-67.) As for the other horse (Gallovie), Valenzuela is seen entering and exiting the horse’s stall with a syringe, which Valenzuela acknowledged during the hearing. (AR 870-74, 1760-61, 1931, 1934; Exs. 45-47 to AR.)

K.           Ruling of Board of Stewards

At the conclusion of the hearings before the Board of Stewards in October 2022, the CHRB requested a ruling suspending petitioner’s license for a period between 420 and 630 days and a fine between $7,000 and $10,500. (AR 1429.)

The Board of Stewards issued its Ruling on December 2, 2022 and Statement of Decision explaining its Ruling on January 1, 2023. (AR 37, 43-60.) The stewards determined that petitioner was guilty of 21 counts of violating Rule 1843.5, 21 counts of Rule 1887, and one count of violating Rule 1902. (AR 60.) The stewards did not, however, penalize petitioner as requested by the CHRB. Rather, the stewards suspended petitioner’s license for one year, beginning on December 9, 2022, and fined him $10,000. (AR 37.)

L.           The CHRB’s Adoption of Board of Stewards’ Ruling as Final Decision

On December 2, 2022, petitioner appealed the Board of Stewards’ Ruling. (AR 1661.) The Board designated a neutral hearing officer to adjudicate his appeal. (AR 1663.) The hearing officer heard petitioner's appeal on January 18 and 19, 2023; petitioner and the CHRB provided opening and closing briefs. (AR 993-997, 1116-1120, 1463-90, 1492-1500, 1502-07.) The hearing officer issued his proposed decision on February 28, 2023, affirming the Board of Stewards’ findings and ruling. (AR 62-105.) The hearing officer, however, diverged from the stewards’ ruling by recommending that petitioner receive partial credit of 69 days for the suspension during which he agreed not to enter any horse (from the commencement of the hearing in September 2022 until the stewards’ ruling in December 2022). (AR 104-05.)

The CHRB considered the hearing officer’s proposed decision, rejected it because of the hearing officer’s partial offset recommendation, and determined that it would itself decide the appeal upon the record under Government Code section 11517, subdivision (c)(2)(E). (AR 108.) The CHRB, having rejected the proposed decision, asked the parties to submit additional briefing as to whether a 69-day credit for the suspension is appropriate. (AR 108.) The parties submitted the requested supplemental briefing. (AR 1533-36, 1561-69.)

On May 19, 2023, the CHRB reinstated the Board of Stewards’ Ruling and adopted it as the CHRB’s final decision. (AR 155-56.)

II.      Procedural History

            On June 29, 2022, petitioner filed a Verified Petition for Writ of Mandate. On April 13, 2022, after the Court (Hon. Mary H. Strobel) granted leave to amend, petitioner filed a Verified First Amended Petition for Writ of Mandate. On June 9, 2023, pursuant to stipulation of the parties and leave to amend granted by the Court, petitioner filed the operative Verified Second Amended Petition for Writ of Mandate.

            On July 1, 2022, the Court (Hon. Mary H. Strobel) heard petitioner’s ex parte application to stay any interference with his ability to enter and race horses in California pending resolution of the CHRB’s complaint. The Court denied the ex parte application as against the public interest.

            On January 30, 2024, petitioner filed an amended opening brief.[10] On February 16, 2024, respondents filed an opposition. On March 4, 2024, petitioner filed a reply.

            The Court has received an electronic and hard copy of the administrative record and a hard copy of the joint appendix. Petitioner also filed the joint appendix.

III.     Standard of Review

The petition is brought pursuant to CCP § 1094.5. (Second Amended Petition (“SAP”) at 1:17; see also Opening Br. at 2:5-6.) Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

“It has been held by the California Supreme Court that the California Horse Racing Board is in a different category than most other administrative agencies because its power is derived from the California Constitution.” (Overturf v. California Horse Racing Bd. (1978) 86 Cal.App.3d 979, 986.) Accordingly, the Court applies a substantial evidence review to factual findings made by the CHRB. (See Jones v. Superior Court (1981) 114 Cal.App.3d 725, 727-30 [finding that substantial evidence test applies to review of CHRB proceedings because CHRB is of constitutional origin].)

Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of ponderable legal significance which is reasonable, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts may reverse an [administrative] decision only if, based on the evidence…a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“On substantial evidence review, [the court] do[es] not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. The administrative agency’s findings come before [the court] with a strong presumption as to their correctness and regularity. [The court] do[es] not substitute [its] own judgment if the agency’s decision is one which could have been made by reasonable people. Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency’s findings are not supported by substantial evidence.” (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1073, citations and quotations omitted.)

A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

IV.     Analysis

A.           Objection to Opposition

            Petitioner objects to the opposition as exceeding the limit of 15 pages set forth in Rule of Court 3.1113(d). (See also Local Rule 3.231(i) [setting limit of 15 pages for opposition].) “A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Rule 3.113(g).)

            The opposition is 16 pages. The sixteenth page has four lines of argument. Respondent’s violation of Rule of Court 3.1113(d) and Local Rule 3.231(i) is de minimis. The Court exercises its discretion to consider the opposition, except for the four lines of argument contained on page 16. (See Rule of Court 3.113(g), 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)  

            The Court, however, admonishes counsel for respondent for his failure to comply with the Rules of Court.  While the rule violation may be viewed as de minimis, counsel’s transgression is particularly concerning because counsel did so after the Court specifically denied the parties’ request to file oversized briefs.

B.           Review of Final Decision of CHRB

As stated above, after having reviewed the record, the CHRB reinstated the Board of Stewards’ Ruling as the final decision. (AR 37 [12/2/22 Ruling by Board of Stewards], 155-56 [CHRB Decision after Non-Adoption of Proposed Decision on appeal].) Pursuant to Rule 1887, the Board of Stewards suspended petitioner for one year and fined him $10,000 for having violated Rule 1843.5 and Rule 1902.[11] (AR 37.)

            Petitioner argues that he was selectively prosecuted under Rule 1843.5 because 99% of trainers feed substances to their horses that are not allowed under Rule 1843.5 but only petitioner was prosecuted. (Opening Br. at 10:20-11:19.)

            Under Rule 1843.5, “a horse is deemed ‘entered’ in a race 48 hours before post time of the running of the race.” (Rule 1843.5(a).) Other than substances not applicable to this matter, “[d]rugs, medications or any other substances shall not be administered by any means to a horse after it is deemed entered to race[.]” (Rule 1843.5(c).) Only water, hay, and grain may be given to the horse until post time. (Rule 1843.5(b).)

            Petitioner’s claim of selective prosecution fails for two reasons. First, petitioner has not demonstrated the CHRB’s knowledge that other trainers have violated Rule 1843.5, which is necessary to demonstrate that the CHRB deliberately chose to ignore such other trainers’ violations and solely prosecute petitioner. Second, “in order to establish a claim of discriminatory enforcement a defendant must demonstrate that he has been deliberately singled out for prosecution on the basis of some invidious criterion.” (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 298.) Although petitioner alleges in the operative Second Amended Petition that he has exercised his rights under the First Amendment (SAP ¶¶ 4, 14, 16, 19, 32), petitioner fails to provide substantial evidence of what, if any, protected First Amended activity he undertook to motivate the CHRB to retaliate and charge him with having violated Rule 1843.5. Petitioner’s contention of selective prosecution is thus without merit.

Petitioner also contends that respondent improperly found him liable for Rule 1887 because neither Higenamine, Paeonol, or X-Treme Air Boost are prohibited substances under Rule 1843.1. Rule 1887(a) states in relevant part (emphasis added):

The trainer is the absolute insurer of and responsible for the condition of the horses entered in a race, regardless of the acts of third parties, except as otherwise provided in this article. If the chemical or other analysis of urine or blood test samples or other tests, prove positive showing the presence of any prohibited drug substance defined in Rule 1843.1 of this division, the trainer of the horse may be fined, his/her license suspended or revoked, or be ruled off. In addition, the owner of the horse, foreman in charge of the horse, groom, and any other person shown to have had the care or attendance of the horse, may be fined, his/her license suspended, revoked, or be ruled off.

Rule 1887(a) “impose[s] strict responsibility upon the trainer for the condition of the horse.” (Sandstrom v. California Horse Racing Bd. (1948) 31 Cal.2d 401, 406 [analyzing similar predecessor regulation].) However, the parties dispute whether strict liability upon the trainer (here, petitioner) applies for violations of regulations other than the presence of “prohibited drug substances,” as defined in Rule 1843.1, as proven through chemical or other analyses of urine or blood samples of a horse. The Board of Stewards explicitly acknowledged there was no such prohibited substance at issue. (AR 59 [“The Respondent [petitioner] argued that none of the horses tested had a prohibited substance in their blood or urine, which was true”].) Notwithstanding the lack of any prohibited substance at issue, the Board of Stewards applied strict liability to its determination that petitioner violated Rule 1843.5, which governs administration of substances other than water, hay, and grain on race day. (AR 59 [“The issue is, it is not a positive drug test finding, it is strictly a violation of a race day administration”].)

            The Court finds it unnecessary to determine whether the strict liability provision of Rule 1887(a) applies to violations of Rule 1843.5. Even if the CHRB had not proceeded in the manner required by law by applying Rule 1887 to petitioner, such an abuse of discretion must also be prejudicial in order for petitioner to be entitled to writ relief. (CCP § 1094.5(b).) “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error.” (Fisher v. State Personnel Board (2018) 25 Cal.App.5th 1, 20.) Even if petitioner were wrongfully found liable under Rule 1887, the CHRB was entitled to suspend and fine him for having violated Rules 1843.5 and 1902.[12]  Further, as stated by the Board of Stewards and adopted by the CHRB, the precise conduct forming the basis for the Rule 1887 violations was the same for the violations of Rules 1843.5 and 1902—namely, administering a non-prohibited substance on race day that provided an unfair advantage over trainers who abided by the rule.  (AR 58-59, 156.)

With respect to Rule 1843.5, substantial evidence supports the finding that horses in petitioner’s care were given substances other than water, hay, and grain, i.e., X-Treme Air Boost, to horses within 48 hours of race time. During the hearing before the stewards, Marroquin, the foreman, testified that he likely gave X-Treme Air Boost to horses on race day. (See footnote 6, supra.) Surveillance videos show that Marroquin, the foreman, administered a substance other than water, as no water came out of the horses’ mouths after having administered a syringe. (See AR 1760-61, 1878, 1899, 1904, 1923, 2118, 2123, 2126; Exs. 25-26, 33-36, 42-43, 116, and 118-121 to AR.)

            Assistant trainer Valenzuela also admitted that he gave X-Treme Air Boost to four horses on race day. (See footnote 9, supra.) A surveillance video captured Valenzuela throwing away a syringe after exiting a horse’s stall (AR 1760-61, 1971, 1976; Exs. 60-63 to AR), despite having testified before the stewards that he did not administer any syringes (see footnote 10, supra). Petitioner appears to have conceded that violations of Rule 1843.5 occurred. (AR 464 [Baltas testified, “You can’t give anything on race day. It’s a violation. Mistakes have been made.”], 1733 [“BALTAS later added that he only used that substance on horses that bled, that he was trying to help them, and they made a mistake.”], 2670 [“Obviously, we made a mistake. I’m not saying we didn’t make a mistake”].)

Petitioner did contend during the administrative proceedings that he never directed the administration of X-Treme Air Boost, but substantial evidence supports the finding that petitioner directed the administration of X-Treme Air Boost to horses within 48 hours of race time. Even though petitioner denied having directed his employees to administer X-Treme Air Boost or having known that his employees were administering X-Treme Air Boost (AR 485, 487, 531), substantial evidence supported the stewards’ finding that petitioner was not credible (AR 59).

During petitioner’s interview with Investigator Barker, when asked “[w]hen and how much [of X-treme Air Boost] were your guys supposed to give to the horses,” petitioner responded one tube four hours out from racing. (AR 2669.) During the hearing with the Board of Stewards, when petitioner was asked, “So you’ve never purchased X-Treme Air Boost for your employees to use?”, petitioner responded, “Oh, we’ve used it before.” (AR 485.) Petitioner also stated that both he and Valenzuela, the assistant trainer, purchased X-Treme Air Boost. (AR 486.) Petitioner stated that he talked to Valenzuela about the product, telling him that “it looks like it’s all natural and safe and probably should give it to horses that are bleeders.” (AR 486-87.) Petitioner testified that the label of X-Treme Air Boost directs its administration within four to six hours of a race. (AR 493-94.) Despite having denied giving any instruction to his employees within a time period (AR 531, 532), petitioner also testified that “[w]e go by the label” (AR 532).  

            Given petitioner’s inconsistent testimony, substantial evidence supports the stewards’ finding that petitioner was “not credible as to whether he gave any instruction to his employees as to when they should administer X-Treme Air Boost to his horses.” (AR 59, emphasis in original.) Substantial evidence supports the stewards’ finding that petitioner “was aware of the ongoing administrations” of X-Treme Air Boost. (AR 59.) For the foregoing reasons, substantial evidence supported the finding that petitioner violated Rule 1843.5.

With respect to Rule 1902, that rule provides: “No licensee shall engage in any conduct prohibited by this Division nor shall any licensee engage in any conduct which by its nature is detrimental to the best interests of horse racing[.]” Violations of Rule 1902 include the “solicitation of or aiding and abetting any other person to participate in any act or conduct prohibited by this Division.” (Rule 1902(c).) Rule 1843.5 is part of Division 4, within which Rule 1902 is contained. For the reasons stated above, substantial evidence supports the finding that petitioner solicited or aided and abetted his employes in having violated Rule 1843.5. Substantial evidence thus supports a finding that petitioner violated Rule 1902.

            For the foregoing reasons, even if the CHRB improperly found petitioner liable for violating Rule 1887,[13] there is no reasonable probability that petitioner would have obtained a better outcome in the absence of such error. (Fisher, 25 Cal.App.5th at 20.) Because petitioner has not demonstrated any prejudicial abuse of discretion, he is not entitled to writ relief.

C.           Review of Propriety of Penalty

The penalty imposed by the CHRB can be disturbed only if there has been a manifest abuse of discretion. (Epstein v. California Horse Racing Bd. (1963) 222 Cal.App.2d 831, 845.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

            Here, the CHRB suspended petitioner for one year and fined him $10,000 for 21 violations of Rule 1843.5. (AR 60.) Petitioner does not dispute the number of horses at issue. The CHRB has suspended trainers for 45 days for having committed one violation of Rule 1843.5. (AR 2510 [“oral administration of ‘Blood Buffer’ on race day”].) The CHRB has suspended trainers for 30 days and imposed a fine of $1,500 for having violated a medication rule with respect to one horse. (AR 2752.) The CHRB has also suspended trainers for 60 days and imposed a fine of $10,000 for having administered a prohibited substance with respect to one horse. (AR 2750.) Based on these prior imposed penalties, the Court cannot say that a one-year suspension and a $10,000 fine for 21 violations is unreasonable.

            In the alternative, petitioner argues that he should be granted an offset of 69 days, corresponding to the commencement of the Board of Stewards hearing on September 14, 2022 to the Ruling on December 2, 2022, as the hearing officer during his appeal recommended. (AR 104-05.) Petitioner argues that he agreed not to enter any horses for racing pending the hearing. (AR 1657-58.) However, in exchange for that agreement, petitioner received a continuance of the hearing, which petitioner requested for the benefit of his counsel who was tending to other trials. (AR 1649-53.) In other words, petitioner did not voluntarily or gratuitously accept a period of suspension for which he should receive credit.  Under the circumstances, it was certainly not a manifest abuse of discretion for the CHRB to have refused to give such credit.

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.