Opinion
D079119
05-16-2022
ZVI KRIPLE, Plaintiff and Appellant, v. CALIFORNIA HORSE RACING BOARD, Defendant and Respondent.
Zvi Kriple, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Chris A. Knudsen and Jodi L. Cleesattle, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2019-00062205-CU-WM-CTL, Richard E.L. Strauss, Judge. Affirmed.
Zvi Kriple, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen and Jodi L. Cleesattle, Deputy Attorneys General, for Defendant and Respondent. 1
DATO, J.
Stripped of its somewhat archaic terminology, a writ of mandamus or mandate is simply an order from a court telling someone to do something. And mandate is properly issued when an administrative agency with a duty to act refuses to take any action. But at the same time, it is well settled that a writ of mandate is not appropriate to compel an agency to exercise its discretion differently than it has already chosen to.
In this case, horse trainer Zvi Kriple filed an amended petition for writ of mandate seeking to compel the California Horse Racing Board (CHRB) to ban the use of whips during races and extend an existing prerace ban on administering antiinflammatory medication from 48 hours to 30 days before a race. CHRB is a public entity responsible by statute for adopting "rules and regulations that protect and advance the health, safety, welfare, and aftercare of racehorses." (Bus. & Prof. Code, § 19440, subd. (a)(1).) In Kriple's view, CHRB's existing rules regarding the use of whips and medications are "grossly reckless and in total disregard for the health and safety" of racehorses, amounting to animal cruelty under state and federal law. The trial court sustained CHRB's demurrer without leave to amend, concluding Kriple's petition failed to state a viable claim. Because mandate is not appropriate to compel CHRB to exercise its discretionary powers in the particular manner Kriple seeks, we conclude the demurrer was properly sustained and affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND In December 2020, Kriple filed a first amended petition for writ of mandate against CHRB under Code of Civil Procedure section 1085, asserting that CHRB had a clear, present, and ministerial duty to ban the use of horse whips during races and extend an existing prerace ban on 2 antiinflammatory and joint fixing medication from 48 hours to 30 days before the start of a race. Kriple believed these measures would reduce catastrophic injuries for racehorses and jockeys alike. In his view, whips used "in order to force the horse to speed up" ran afoul of state and federal laws on animal cruelty. It was insufficient that CHRB could "at some point stop allowing the . . . whipping [of] race horses with leather instruments," as he also sought a ban on "any and all veterinary pre-race medications for 30 days prior to the actual start of any horse race to prevent early death."
Specifically, Kriple cites to Penal Code section 597 and 18 United States Code section 5533 in his petition. The former statute proscribes animal cruelty under state law as a wobbler offense. Although there appears to be no federal law codified at 18 United States Code section 5533, Kriple references by name the federal "Prevention of Animal Cruelty Torture Act." Both statutes will be analyzed in the discussion.
Attached to Kriple's amended petition was a memorandum of points and authorities that appears to list two "causes of action." The second seems to be a tort claim challenging CHRB's medication rules. A prayer for relief beneath this paragraph purports to seek $50 million in compensatory damages to fund a recovery facility for injured racehorses. CHRB noted in its demurrer that compensatory damages are unavailable in a mandate action. (See, e.g., California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 705 ["Mandamus is not an action for damages, because it is an equitable, not a legal remedy."].) Kriple did not respond to this point in his opposition and focused on his mandate claim. As his appellate briefs follow the same course, we understand Kriple's petition to be seeking solely mandate and not damages for tort liability.
CHRB demurred, arguing the petition failed to state a claim. (See Code Civ. Proc, § 1089.) Referencing its broad authority to regulate horseracing in this state, CHRB indicated it had adopted one rule regulating riding crops (Cal. Code Regs., tit. 4, § 1688) and another banning the administering of certain medications to racehorses during the 48 hours before a race (id., § 1843.5). Although Kriple may have preferred stricter 3 regulations, CHRB maintained he could not show that the public entity had a clear, present and ministerial duty to adopt the specific rules he sought. Instead, in CHRB's view, Kriple's concerns were best left to the legislative process.
Following an unreported hearing in May 2021, Judge Strauss sustained the demurrer without leave to amend, stating: "The petition fails to state a viable claim. Petitioner does not cite to any legal authority which supports the relief sought." We construe Kriple's premature notice of appeal from the order sustaining the demurrer as being taken from the subsequent judgment of dismissal. (See Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 431, fn. 5; Brown v. County of Los Angeles (2014) 229 Cal.App.4th 320, 322, fn. 1.)
DISCUSSION
As he did before the trial court, Kriple asserts that mandate should issue to compel CHRB to ban the use of whips during races and extend the current prerace ban on antiinflammatory medications from 48 hours to 30 days. He believes these measures will reduce horse and rider injuries and are compelled by federal and state animal cruelty laws. As we explain, however, state and federal law do not compel CHRB to promulgate the specific rules Kriple prefers. As mandate is not available to compel a public entity to exercise its discretionary authority in a particular manner, we agree with the trial court that the amended petition fails to state a cause of action.
A. Mandate generally requires a ministerial duty.
Following a petition by a "beneficially interested party," a court may issue a writ of mandate "to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station . . . ." (Code Civ. Proc, §§ 1085, subd. (a), 1086.) There are two essential elements 4 for this type of relief: "(a) a clear, present, (and usually ministerial) duty on the part of the respondent; [and] (b) a clear, present, and beneficial right in the petitioner, to the performance of that duty." (8 Witkin, Cal. Procedure, Extraordinary Writs (6th ed. 2021) § 74, p. 940 [collecting cases]; see AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700 (AIDS Healthcare).) On appeal following the sustaining of a demurrer, we independently determine whether Kriple's petition stated a viable cause of action. (AIDS Healthcare, at p. 700; Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 185 (Physicians Committee))
This appeal turns on the first requirement-whether the petition sufficiently alleged a duty on the part of CHRB to ban the use of whips on racehorses and extend a prerace ban on antiinflammatory medication. "Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial." (AIDS Healthcare, supra, 197 Cal.App.4th at p. 700.) An act is ministerial if a public entity is required by law to act in a particular manner, irrespective of its own judgment as to the appropriateness of that action. (Ibid.) Discretionary actions, by contrast, are those the law leaves to the public entity's best judgment. (Ibid.) As a rule, mandate will not issue to compel a public entity to exercise its discretionary powers in a particular manner. (Id. at pp. 700-701; see Physicians Committee, supra, 43 Cal.App.5th at p. 185.)
B. Pursuant to its powers, CHRB has adopted rules concerning the use of whips during races and imposed a 48 hour ban on prerace medication.
California has long vested regulatory authority over horse racing in CHRB. (See Sandstrom v. Cal. Horse Racing Bd. (1948) 31 Cal.2d 401, 404-405; Flores v. Los Angeles Turf Club, Inc. (1961) 55 Cal.2d 736, 746.) 5 Pursuant to this authority, CHRB has broad discretion to adopt and enforce reasonable rules to effectuate this state's Horse Racing Law, codified at section 19400 et seq. of the Business & Professions Code. (Lavin v. Cal. Horse Racing Bd. (1997) 57 Cal.App.4th 263, 268-269; see also Epstein v. Cal. Horse Racing Bd. (1963) 222 Cal.App.2d 831, 836.)
The Horse Racing Law grants CHRB broad power to "[a]dopt[ ] rules and regulations that protect and advance the health, safety, welfare, and aftercare of racehorses." (Bus. & Prof. Code, § 19440, subd. (a)(1).) Elsewhere, the scheme permits CHRB to "prescribe rules, regulations, and conditions . . . under which all horse races with wagering on their results shall be conducted in this State." (Id., § 19562.) CHRB is expressly required to "adopt regulations to establish policies, guidelines, and penalties relating to equine medication . . . ." (Id., § 19580, subd. (a).) Unless CHRB has by regulation specifically authorized it, "[n]o substance of any kind shall be administered by any means to a horse after it has been entered to race in a horse race." (Id., § 19581.) It is left to CHRB to adopt regulations defining the punishment for violating the medication bans. (Id., §§ 19582, 19582.5.)
This language was added to the statute in 2020 and was in effect at the time the trial court ruled on CHRB's demurrer. (Stats. 2020, ch. 251 (Assem. Bill No. 1974) § 1, effect. Jan. 1, 2021.)
Pursuant to its broad regulatory power, CHRB adopted rules governing horseracing that are codified at sections 1400 to 2063 in title 4 of the California Code of Regulations. Regulation 1688 describes in exacting detail the permitted and prohibited uses of whips, known as riding crops, during races. In general, a riding crop may not be used during training, on any part 6 of the horse's body other than its shoulders or hind quarters, or during the post parade or after the finish of a race. (Id., subd. (b).) In addition, a crop cannot be used "excessively or brutally causing welts or breaks in the skin," "when the horse is clearly out of the race or has obtained its maximum placing," "persistently even though the horse is showing no response," "more than two times in succession without giving the horse a chance to respond," or "more than six times in a race." (Ibid.) Correct uses of a riding crop include waving the crop without touching the horse, holding the crop underhanded at or below the jockey's shoulder height, or "tapping the horse on the shoulder with the crop in the down position while having both hands: (A) holding onto the reins, and (B) touching the neck of the horse." (Regulation 1688(c)(3).) Violations of these rules can lead to fines. (Id., subds. (d)-(e).)
Further references to title 4 of the California Code of Regulations are referenced in this opinion as "Regulation," alongside the corresponding section number.
Regulations 1843 to 1845 address medication use. CHRB aims "to protect the integrity of horse racing, to guard the health of the horse, and to safeguard the interests of the public and the racing participants." (Regulation 1843.) "[A] horse is deemed 'entered' in a race 48 hours before post time of the running of the race." (Regulation 1843.5(a).) After that point, only limited medications are allowed. (Id., subds. (c)-(h).) Another regulation specifies accepted levels of a dozen or so substances in blood and urine samples for horses entered in a race. (Regulation 1844(c)-(d).)
C. Kriple cannot obtain a writ of mandate compelling CHRB to exercise its discretion to promulgate stricter regulations.
The crux of Kriple's petition is that the rules adopted by CHRB do not go far enough. But as we explain, a writ of mandate is not available to force the CHRB to adopt the specific rules Kriple favors. 7
1. State and federal laws do not presently impose a mandatory duty on CHRB to ban riding crops and prerace medication.
Kriple's petition alleges that by permitting jockeys to use riding crops during races and not extending a prerace medication ban, CHRB's regulations violate Penal Code section 597 and the federal Prevention of Animal Cruelty Torture Act of 2020 (PACT Act) (Pub.L. No. 116-72 (Nov. 25, 2019) 133 Stat. 1151). He cites Penal Code section 597, subdivision (b), which punishes "every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal" and every person who causes any animal to be mistreated in that manner. Kriple further claims that CHRB's regulation on riding crops violates the PACT Act, which criminalizes the act of "animal crushing"-i.e., "actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury." (18 U.S.C. § 48(a)(1) & (f)(1).)
These statutes do not help Kriple. He does not cite, nor have we found, any authority construing these provisions to bar the use of riding crops or require a 30-day prerace medication ban in horseracing. As the Attorney General suggests, nothing in Penal Code section 597 or the PACT Act requires CHRB to adopt the specific rules Kriple seeks.
For the first time on appeal, Kriple suggests that CHRB's regulations concerning riding crops and prerace medication violate the federal Animal Welfare Act of 1970 (7 U.S.C. § 2131 et seq.). We disagree. "Congress passed the Animal Welfare Act in 1966 'to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment.'" (Am. Anti-Vivisection Soc'y v. United States Department of Agriculture (D.C. Cir. 2020) 946 F.3d 615, 617.) By its express 8 terms, the Act does not apply to "horses not used for research purposes." (7U.S.C. § 2132(g).)
Responding to recent racehorse fatalities and medication scandals in thoroughbred racing, Congress enacted the Horseracing Integrity and Safety Act of 2020 (HISA). (15 U.S.C. §§ 3051-3060.) Once it takes effect on July 1, 2022, the law will require a new regulatory body called the Horseracing Integrity and Safety Authority to adopt uniform safety and medication standards to protect animal welfare. (15 U.S.C. §§ 3051(14), 3052(a), 3055(b)-(c), 3056(b)(2).) Until then, and with public comment procedures yet to commence, there is no existing regulation associated with the HISA that compels CHRB to ban the use of riding crops during races or extend a prerace ban on antiinflammatory medications to 30 days.
In short, the Legislature has granted CHRB broad power to adopt rules and regulations to advance "the health, safety, welfare, and aftercare of racehorses." (Bus. & Prof. Code, § 19440, subd. (a)(1).) This includes provisions relating to prerace medication. (Id., §§ 19580, subd. (a), 19581.) CHRB responded by crafting specific rules regarding the use of riding crops and prerace medications. (Regulations 1688, 1843.5.) As it stands today, no state or federal law precludes CHRB from exercising its regulatory discretion in this manner.
2. A writ of mandate will not issue to force the exercise of discretion in a particular manner.
Unable to establish that either federal or state law requires CHRB to adopt the particular regulations he proposes, Kriple fails to state a cause of action. The court in AIDS Healthcare explained that "[m]andamus will lie to command the exercise of discretion, that is, to compel some action." (197 Cal.App.4th at p. 704.) In other words, it can remedy administrative inaction. But this is not a case where a public entity has completely failed to exercise its discretionary powers. As discussed, CHRB has promulgated specific rules regarding riding crops, prerace medication, and drug testing. 9
Dissatisfied with these rules, Kriple seeks a writ of mandate to compel it to adopt different ones. He believes "whips must be banned altogether" because they can inflict injury without materially affecting racehorse performance, which "is more influence[d] by genetics, preparation, and rider skill." He likewise claims that CHRB "failed and/or refuse[d] to exercise sound discretion when refusing to stop any and all veterinary Pre-Race Medication for 30 days prior to the start of the actual races."
Although at times he appears to suggest that CHRB abused its discretion in failing to act, it is clear Kriple is really attempting to argue that the discretionary actions CHRB has already taken did not go far enough. This effort necessarily fails. "Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise discretion in some manner." (AIDS Healthcare, supra, 197 Cal.App.4th at pp. 700-701; see Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442 [although mandate may issue "to compel an official both to exercise his discretion (if he is required by law to do so) and to exercise it under a proper interpretation of the applicable law," it will not lie "to compel an official to exercise discretion in a particular manner"]; Center for Biological Diversity v. Department of Conservation (2018) 26 Cal.App.5th 161, 172 (Center for Biological Diversity) [" 'While a writ of mandate may issue to compel compliance with a ministerial duty-an act the law specifically requires-it may not issue to compel an agency to perform that legal duty in a particular manner, or control its exercise of discretion by forcing it to meet its legal obligations in a specific way.' "].)
Courts routinely reject mandate claims in which petitioners seek to force a public official or entity to exercise its discretion in a particular way. For example, in AIDS Healthcare, a court concluded that the Los Angeles 10 County health department had no ministerial duty to require adult film actors to wear condoms. Statutes required the department to take measures to prevent the transmission of sexually transmitted diseases but afforded it discretion as to how best to do so. (AIDS Healthcare, supra, 197 Cal.App.4th at pp. 702, 704.) Similarly, in Physicians Committee, federal and state school nutrition statutes and local wellness policies did not impose a ministerial duty on school districts to adopt rules eliminating or reducing the use of processed meat in school lunches. (Physicians Committee, supra, 43 Cal.App.5th at pp. 186-192.) While federal law required educational agencies to develop wellness policies, it left the details of those policies to agency discretion and did not "direct schools to address the reduction or elimination of processed meats." (Id. at pp. 186-189; see also Center for Biological Diversity, supra, 26 Cal.App.5th 161, 173 [federal law requiring public agency to protect certain aquifers and safeguard drinking water sources did not mandate how these duties were to be fulfilled].) Here, as in each of those cases, mandate is unavailable to force CHRB to exercise its regulatory discretion to ban riding crops during races and extend a prerace ban on antiinflammatory medications. The trial court properly sustained CHRB's demurrer for failure to state a cause of action.
Given our conclusion that mandate is unavailable to compel a discretionary act by CHRB, we need not reach the Attorney General's alternative arguments that Kriple lacked standing or that CHRB's regulations were in fact reasonable.
As the court commented in AIDS Healthcare, "public policy advocacy is better directed at lawmakers." (AIDS Healthcare, supra, 197 Cal.App.4th at p. 705.) Kriple may, for example, urge the Authority formed under the HISA to propose specific standards governing the use of riding crops and antiinflammatory medications. Or he may address his ideas to the CHRB 11 through the public comment process for proposed rules and regulations. (See, e.g., Gov. Code, §§ 11346, 11346.45, subd. (a), 11346.8, subd. (a).) We merely hold that where Kriple does not allege a failure to act but rather a failure to act in the specific discretionary manner he prefers, a writ of mandate is unavailable. We cannot compel CHRB to implement Kriple's preferred policy objectives. (See AIDS Healthcare, at p. 705.) 12
For the first time on appeal, Kriple argues that CHRB breached a ministerial duty to respond to his written complaint under Regulation 2043. To the extent this could be construed as an offer of proof to support possible amendment of his petition, it is lacking. Regulation 2043 does not create a general complaint procedure by which interested persons can propose specific rules to the CHRB concerning horse and rider safety. Rather, it provides a narrow dispute-resolution mechanism to resolve contract disputes between "a horsemen's organization and a racing association." (Regulation 2043.) A "horsemen's organization" represents horse owners and trainers and negotiates with racing associations "regarding the conditions for each race meeting, the distribution of commissions and purses not governed by statutory distribution formulas, and other matters relating to welfare, benefits and prerogatives of the parties to the agreement." (Regulation 2040.) Neither Regulation 2043 nor any other provision in title 4 of the California Code of Regulations imposes a ministerial duty on CHRB to respond to individual requests to revise racehorse safety regulations. Thus, there is no reasonable possibility that amendment would cure the petition's defects.
DISPOSITION
The judgment dismissing Kriple's petition for writ of mandate is affirmed. CHRB is entitled to its costs on appeal.
WE CONCUR: McCONNELL, P. J. IRION, J. 13