Filed 8/14/17; Certified for Publication 9/6/17 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAN LUIS REY RACING, INC., D069680

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2011-00096586-

CU-BT-CTL)

CALIFORNIA HORSE RACING BOARD,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,

Katherine A. Bacal, Judge. Affirmed.

Webb & Carey, Patrick D. Webb, and Kevin A. Carey for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General,

Christine Mersten, and Lindsey M. Stevens, Deputy Attorneys General, for Defendant

and Respondent.

San Luis Rey Racing, Inc. (SLRR) appeals from a judgment denying its petition

for a writ of mandate asking the superior court to overturn certain orders of the California Horse Racing Board (CHRB) regarding the management of a fund established and

governed by Business and Professions Code1 sections 19607 and 19607.1. The superior

court determined SLRR did not have standing because it did not have a direct interest in

the disbursement of the fund and denied SLRR's petition. We agree SLRR does not have

standing and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1990, the California legislature enacted legislation to address the increased

costs associated with the need to provide off-site stabling for horses during race meetings

due to rising horse populations exceeding the number of stalls available at a single race

location. Section 19607 required satellite wagering facilities to redirect a small portion of

the funds they would otherwise allocate for commissions, purses and owners' premiums

into a fund (the fund), and created an organization comprised of race associations, fairs

conducting racing, and the organization representing horsemen and horsewomen

(collectively, the fund management organization2) to manage the fund. (Former § 19607,

1 All further statutory references are to the Business and Professions Code unless otherwise noted.

2 The parties dispute whether the Southern California Off Track Wagering, Inc. (SCOTWINC) or a smaller subset of SCOTWINC referred to as the Southern California Stabling and Vanning Committee carried out the management duties set forth in the statute. As used herein, "fund management organization" refers to the Southern California Stabling and Vanning Committee within SCOTWINC, consistent with the findings of the CHRB's Legislative, Legal and Regulations Committee (LLRC). Regardless, it would not affect our analysis regarding SLRR's standing if we determined SCOTWINC instead acted as the fund management organization.

2 added by Stats. 1990, ch. 131, § 15, eff. June 11, 1990, p. 33370, amended by

Stats. 1998, ch. 516, § 1, p. 3635.) Section 19607.1 directed the fund management

organization to use the funds, in part, to reimburse race associations for the incremental

increase in operating expenses associated with providing off-site stabling at board

approved auxiliary training facilities during race meetings. (Former § 19607.1, added by

Stats. 1990, ch. 131, § 15, eff. June 11, 1990, p. 33370.)

At that time, SLRR operated an auxiliary facility and provided additional stabling

for racehorses during race meetings but did not, itself, put on races, and thus was not a

race association and did not contribute to the fund. Prior to 2009, the fund management

organization provided reimbursements from the fund for the use of auxiliary stalls at

SLRR's facility, along with a number of other facilities. By December 2009, though,

horse racing revenues had decreased and the fund was operating at a deficit. The fund

management organization agreed to stop providing reimbursement for off-site stabling at

SLRR and another auxiliary facility, while continuing to provide reimbursements for off-

site stabling at just two facilities, Santa Anita and Hollywood Park, both of which

conducted their own race meetings and provided off-site stabling for other venues during

their off seasons. SLRR disputed the CHRB's decision to do so and filed a grievance

with the CHRB.

Unable to reach a resolution with the fund management organization or the

CHRB, SLRR filed a complaint and petition for writ of mandamus with the superior

court in early 2012. In the complaint, SLRR asserted claims for unfair competition,

3 interference with contracts, and interference with prospective economic advantage,

among others, based on allegations the fund management organization provided illegal

subsidies to certain race associations, making it impossible for SLRR to compete for

horse stalling business. SLRR also requested a writ directing the CHRB to exercise its

jurisdiction to compel the fund management organization (referred to in the complaint as

SCOTWINC) to comply with the statutory provisions governing the fund and to prohibit

certain distributions from the fund.

The CHRB, along with other named defendants, filed various demurrers in

response to SLRR's writ petition. The superior court granted the demurrers with respect

to all claims asserted against the CHRB except for the writ petition. The court noted that

certain racing associations had requested an audit of the fund, thereby invoking the

board's primary jurisdiction to investigate and adjudicate the issue of whether the fund

management organization had properly disbursed the funds in accordance with the law,

and therefore stayed the remainder of the action in the interest of judicial efficiency. In

making its ruling, the superior court noted SLRR had conceded it did not have standing to

seek reimbursement from the fund, but that SLRR was not precluded from asserting other

claims for damages, restitution or injunctive relief.

Upon completion of the audit, the CHRB appointed an independent referee,

C. Scott Chaney, to make a determination as to two specific issues: " '(1) Whether the

Stabling and Vanning Funds, distributed pursuant to Business and Professions Code

section 19607 et seq., [had] been properly allocated and (2) [w]hether the Audit Report,

4 dated November 6, 2012, performed by the Audit Unit of the California Horse Racing

Board, [was] in accordance with Business and Professions Code section 19433.' " Even

though it was not a racing association with an interest in the audit, the CHRB permitted

SLRR to participate in the meetings given SLRR's complaint in the superior court. After

receiving briefing and materials from the parties and taking oral testimony from various

witnesses, Referee Chaney issued a proposed decision to the CHRB on July 5, 2013.

Of relevance here, in the proposed decision Referee Chaney found the CHRB

audit was conducted in accordance with the law, the statute required the fund

management organization to reimburse the race associations for payments made to off-

site facilities but the fund management organization had been directly reimbursing the

facilities providing the off-site stabling instead, and the fund had been used for purposes

other than stabling and vanning. With respect to the later finding, the proposed decision

explained the fund management organization disbursed $600,000 from the fund in 2008

to pay for capital improvements at an auxiliary stabling facility and had also provided

additional funds for medical services related to horse training. However, the decision

noted the two improper disbursements were discovered in the audit and the CHRB had

subsequently required the race associations to return the money to the fund.

Referee Chaney also determined the fund management organization did not use

the funds in the most efficient manner, in part due to the circumvention of negotiations

between individual race associations and stabling facilities that resulted from the direct

reimbursement of off-site stabling facilities, and thus recommended additional oversight

5 by the CHRB. In particular, Referee Chaney noted there was a general acceptance of

overpaying for off-site stabling because race associations that acted as auxiliary facilities

were generally willing to overpay to be overpaid in return. As a result, auxiliary facilities

like SLRR that did not also act as a race association did not receive reimbursements.

However, Referee Chaney acknowledged decisions for reimbursement could not be

driven purely by economics and nothing in the law precluded the fund management

organization from considering additional factors such as goodwill, service to the industry

and minimizing disruptions in stabling. Thus, he stated it was unclear how SLRR would

have benefited had the fund management organization administered the fund in

accordance with his interpretation of the governing statutes, although he also

acknowledged that determination was outside the scope of his inquiry.

The CHRB held a board meeting on July 18, 2013, and adopted Referee Chaney's

proposed decision. Shortly thereafter, the respondents submitted an appeal and request

for a temporary stay of the July 18 order and, on July 26, 2013, the CHRB issued the

temporary stay. A month later, on August 26, the CHRB dissolved the temporary stay

and ordered that its previous order adopting the referee's proposed decision be filed with

the superior court. But, just a few days later on August 29, the assistant executive

director of the CHRB issued another order at the direction of CHRB Commissioner Israel

reinstating the previous stay and requesting the submission of written materials prior to

the CHRB's October board meeting.

6 The next month, SLRR filed an ex parte request in the superior court, asking the

court to lift its stay and to prohibit the CHRB from reconsidering its July 18, 2013 order.

SLRR argued the CHRB's July 18 order was a final agency decision and the CHRB

therefore no longer had jurisdiction to reconsider it. The court denied the request, noting

Referee Chaney's proposed decision itself indicated it was limited in scope and was only

a guide for the CHRB to utilize in making a determination as to the larger issues in the

case. Thus, the court concluded there was support for the CHRB's assertion the July 18,

2013 order was not a final order. The court permitted SLRR to renew its request by way

of a noticed motion, but SLRR did not file any further papers.

The CHRB referred the matter to the LLRC and, on April 24, 2014, the LLRC

held a meeting to consider the issues raised by SLRR and the respondents. Although they

had submitted a brief to the LLRC, SLRR did not attend the meeting. Following the

meeting, the LLRC issued recommendations regarding Referee Chaney's proposed

decision. The recommendations adopted certain portions of Referee Chaney's proposed

decision, including the following findings: 1) the CHRB properly performed the audit; 2)

the fund could be used for reimbursement of costs associated with additional off-site

stalls a racing association determines are necessary for a race meeting; 3) the funds were

used and distributed properly for the years of 2009, 2010, and 2011; and 4) no funds were

improperly paid to Hollywood Park. The LLRC also made a number of its own

additional findings, primarily concerning the makeup of the fund management

7 organization, none of which referred to SLRR. On April 28, 2014, the CHRB issued an

order adopting the recommendations of the LLRC.

Almost a full year later, in February 2015, SLRR filed an amended writ petition in

the superior court, asking the court to direct the CHRB to void its orders dated August 29,

2013 and April 28, 2014, in addition to the relief sought in the original petition SLRR

filed in 2012. The superior court concluded SLRR did not have standing to pursue the

writ petition because it had only an indirect interest in how the fund management

organization disbursed the fund. As such, the court denied SLRR's petition and entered

judgment in favor of the CHRB.

SLRR filed a motion for a new trial, submitting additional evidence of its alleged

contractual relationships regarding off-site stabling. The superior court concluded SLRR

had previously argued that it had a direct interest in the fund based on the alleged

contracts, but that, regardless of the evidence, SLRR had only asserted an indirect

interest, insufficient for standing, and denied the motion.

SLRR appeals.

DISCUSSION

I

STANDING

A. Standard of Review

The parties dispute whether this court should apply a de novo or substantial

evidence standard of review in deciding whether the superior court erred in concluding

8 SLRR did not have standing. Both standing and the interpretation of statutes are

questions of law to which we typically apply a de novo standard of review. (Fry v. City

of Los Angeles (2016) 245 Cal.App.4th 539, 548-549; Ghirardo v. Antonioli (1994) 8

Cal.4th 791, 799-801.) However, where the superior court makes underlying factual

findings relevant to the question of standing, we defer to the superior court and review

the findings for substantial evidence. (Fry, supra, at p. 549.)

Here, SLRR concedes it is not a race association and is not entitled to direct

reimbursement under the statute. Thus, there are few, if any, underlying factual findings

relevant to our inquiry and we address the legal question of whether SLRR has standing

to dispute the CHRB's decisions and oversight of the fund de novo.

B. SLRR Does Not Have Standing

To obtain relief based on a petition for a writ of mandamus under Code of Civil

Procedure section 1085, the petitioner must be a beneficially interested party—one that

has a direct and substantial interest in the action. (Waste Management of Alameda

County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1233 (Waste

Management), disapproved on other grounds in Save the Plastic Bag Coalition v. City of

Manhattan Beach (2011) 52 Cal.4th 155, 169-170 (Save the Plastic Bag Coalition).) In

the present case, the superior court relied on Waste Management in determining that

SLRR was not a beneficially interested party and thus did not have standing to pursue its

writ petition. SLRR argues the court erred because it does have a direct interest sufficient

to confer standing pursuant to Waste Management and, regardless, the California

9 Supreme Court disapproved of Waste Management on this ground in Save the Plastic

Bag Coalition. As set forth more fully below, we agree with the superior court that

Waste Management is instructive and disagree with SLRR that Save the Plastic Bag

Coalition disapproved the court's analysis of beneficial interest standing in Waste

Management.

1. Waste Management is Instructive and SLRR Does Not Have a Sufficiently Direct Interest to Confer Standing

In Waste Management, the county permitted Browning-Ferris, a competitor of

Waste Management, to accept certain types of waste without requiring the same

California Environmental Quality Act (CEQA) review it had required Waste

Management to undergo before accepting the same type of waste. (Waste Management,

supra, 79 Cal.App.4th at pp. 1230-1231.) Waste Management sought a writ of mandate

directing the county to rescind the permit to Browning-Ferris and require a CEQA review

before reissuing it. (Id. at pp. 1228, 1232.) The superior court issued the requested writ

of mandate but the appellate court reversed, concluding Waste Management did not have

standing because it did not have a direct interest in requiring Browning-Ferris undergo a

CEQA review, its interest in the litigation was purely competitive, and the legislature had

intended for CEQA to address environmental and not competitive concerns. 3 (Id. at

3 The court in Waste Management described Waste Management's interest as being outside the "zone of interests" of CEQA, a term it derived from federal law regarding standing despite recognizing federal law was not binding. The court concluded the "zone of interests" concept was nevertheless relevant in determining Waste Management's

10 pp. 1228-1229, 1235.) More specifically, the court found Waste Management's only

interest in pursuing the writ was forcing Browning-Ferris to incur additional costs

associated with CEQA review—therefore leveling the competitive landscape as Waste

Management had been forced to incur the cost of a CEQA review—and the court

concluded that such a benefit was too indirect to support standing. (Ibid.)

The court then went on to address whether Waste Management could nevertheless

maintain standing as a citizen pursuing a public interest claim in a citizen's action.

(Waste Management, supra, 79 Cal.App.4th at p. 1236.) The court concluded Waste

Management was a corporation and not a citizen and that it was therefore required to

demonstrate the attributes of a citizen litigation, and set out several factors to consider in

making that determination. (Id. at pp. 1237-1238.) The factors included whether the

corporation demonstrated a continuing interest in the public right it was asserting,

whether the entity had a separate interest it could not pursue through other means, and

whether the asserted action would conflict with other legislative policies. (Id. at p. 1238.)

Applying this heightened standard, the court found Waste Management had not

demonstrated an interest in or commitment to the environmental concerns it was raising,

and thus determined Waste Management also did not have standing to maintain a citizen's

action under the public interest exception to the directly beneficial interest standard. (Id.

at pp. 1238-1239.)

interest in forcing compliance with the statute was not direct enough to confer standing. (Waste Management, supra, 79 Cal.App.4th at pp. 1234-1235.)

11 Here, just as in Waste Management, supra, 79 Cal.App.4th 1223, SLRR's stated

interest is competitive in nature: SLRR essentially asserts it could not fairly compete for

off-site stabling business because the fund management organization was improperly

using funds to subsidize the cost of off-site stabling at competing facilities. However,

just as in Waste Management, there is no evidence or assertion here indicating the

Legislature intended to address the competitive market for off-site stabling with the

passage of sections 19607 and 19607.1. Instead, the parties agree the legislation was

created for the specific purpose of reimbursing race associations for the additional costs

they incurred when horse populations grew, forcing them to utilize off-site stabling for

race meetings. Unfortunately for SLRR, when the horse populations subsequently

decreased again, along with revenues, the fund management organization—comprised of

representatives of the race associations and horsemen and women running races—limited

reimbursements for off-site stabling at just two facilities, thereby discontinuing

reimbursement for off-site stabling at SLRR.

SLRR concedes that it is not a race association conducting races and therefore the

CHRB has never had any obligation under the statutes to reimburse SLRR from the fund,

but contends it has a direct interest in competing for off-site stabling business. However,

no interpretation of the statutes, or any of the evidence before the superior court, indicates

SLRR had a right to any portion of that business or that any race association had any

obligation to use SLRR facilities. At most, SLRR asserts the racing associations should

have been free to contract with SLRR and to receive reimbursement from the fund for

12 their costs associated with off-site stabling at SLRR, but even under this interpretation,

the race associations were equally free to choose facilities other than SLRR. Further,

SLRR fails to acknowledge that the Legislature placed the responsibility for managing

the fund in the hands of representatives of essentially the same groups that pay into the

fund and decide where to go for off-site stabling, representatives of the race associations

that host races and the horsemen and women that participate. (Former § 19607, added by

Stats. 1990, ch. 131, § 15, eff. June 11, 1990, p. 33370, amended by Stats. 1998, ch. 516,

§ 1, p. 3635.) Thus, even if the fund management organization had not decided to limit

reimbursements to two facilities, the race associations and horsemen and women were

free to make that same choice and, moreover, were likely to do so based on the limited

resources and built-in incentive to use the facilities of other race associations. SLRR's

interest in competing for that business despite these additional factors is too remote and

indirect to support standing.

SLRR asserts the race associations had a contractual obligation to use, and

subsidize, a certain number of SLRR stalls, but the record does not support this

contention. While SLRR may have had prior contracts with either the race associations

or the managers of the fund to pay for the cost of off-site stabling for certain years, there

are none in the record indicating any race association had agreed to use a certain number

of stalls after 2009. Instead, SLRR points to the license applications and licenses

between the race associations and the CHRB. Some of the license applications listed

SLRR as having a certain number of stalls available for off-site stabling, but none of the

13 documents in the record require any race association, the CHRB or the fund management

organization to use or pay for any particular number of SLRR stalls after 2009. Further,

even if there was a contract mandating payment for the use or availability of stalls at

SLRR after 2009, SLRR's remedy would be for breach of that contract and, notably, there

is no such cause of action here.4

Moreover, even if the CHRB had accepted Referee Chaney's proposed decision

instead of the recommendations of the LLRC—essentially the outcome SLRR is

attempting to achieve through its writ petition—it is unlikely SLRR would have received

any additional reimbursements from the fund. Referee Chaney found the audit of the

fund was conducted in accordance with the law and, except for a couple of instances the

CHRB had already rectified, the funds were used for the statutorily mandated purpose.

Although Referee Chaney also determined the funds should have been distributed

directly to the race associations instead of the off-site stabling facilities and that the fund

was not used in the most efficient manner, he also correctly acknowledged SLRR might

not have benefited had the fund management organization administered the fund in

4 SLRR also argues the inclusion of the descriptor "Board-approved" somehow confers a contractual right for all board approved auxiliary stabling facilities to receive reimbursements from the fund, but, taken in context, it is clear the statute creates no such contractual obligation. A straightforward reading of the statute indicates it permits use of the fund to reimburse race associations for their additional costs in procuring off-site stabling, and further requires the race associations to use only board approved facilities for such off-site stabling. It does not require race associations to use all board approved facilities, and SLRR provides no authority indicating that it does. Further, this position is in direct contradiction with SLRR's stated position that the race associations putting on races were free to use any facility of their choosing for off-site stabling under the statute.

14 accordance with his interpretation of the governing statutes. While stabling at an

auxiliary site such as SLRR may have been more economical or geographically

convenient, nothing in the statute precludes the race associations or the fund management

organization from considering other factors, such as the ability of the race associations

putting on races to remain open and continue offering races. (Former § 19607.1, added

by Stats. 1990, ch. 131, § 15, eff. June 11, 1990, p. 33370.) As representatives of the race

associations comprised the fund management committee, it is reasonably likely the

individual race associations would have made a similar choice to limit off-site stabling to

the facilities of other race associations putting on races, even absent any influence exerted

by the organization. For the same reasons, we find SLRR's implication that Hollywood

Park's president had some improper influence as a member of the fund management

organization, and chairperson of SCOTWINC, unpersuasive.

Alternatively, SLRR argues it had beneficial interest standing pursuant to section

19607 because it had a direct interest in the CHRB directly and adequately supervising

the fund management organization as mandated by the statute. However, SLRR's interest

is the same regardless of whether we consider the CHRB's supervision of the fund

mandated by section 19607 or the reimbursements the fund management organization

made pursuant to section 19607.1. In either case, SLRR only has a direct interest if it

stands to benefit directly from a revised application of the statutes and, as the statutes do

not require the race associations to use SLRR for off-site stabling under any

interpretation, SLRR does not stand to benefit directly from the requested writ.

15 2. Save the Plastic Bag Coalition Is Not Instructive Because SLRR Does Not Assert Public Interest Standing

SLRR argues Save the Plastic Bag Coalition, supra, 52 Cal.4th 155 is the

controlling authority and that, there, the California Supreme Court disapproved the

discussion of beneficial interest standing in Waste Management, supra, 79 Cal.App.4th

1223. However, SLRR misinterprets the discussion of Waste Management in Save the

Plastic Bag Coalition.

In Save the Plastic Bag Coalition, the court considered whether an association of

plastic bag manufacturers had standing to maintain a citizen's suit asserting the city was

required to conduct an environmental impact report (EIR) on the effects of an ordinance

banning plastic bags. (Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 160.) The

city argued the coalition had failed to make the enhanced showing required by Waste

Management, supra, 79 Cal.App.4th 1223 that public and not private economic interests

motivated it, and that it should thus be " 'accorded the attributes of a citizen litigant' " in

bringing a citizen suit. (Save the Plastic Bag Coalition, supra, at pp. 160, 167.) The

court rejected this argument and the rule set forth in Waste Management subjecting

private corporations to heightened scrutiny as compared with individual citizens when

they assert public interest standing. (Save the Plastic Bag Coalition, supra, at pp. 167,

170.) Thus, the court found the coalition had public interest standing to pursue the

citizen suit. (Id. at p. 170.)

16 In addition, the court also concluded the ban would have a direct, severe and

immediate effect on the coalition members' ability to sell plastic bags in the city, and

accordingly the coalition had standing based on a direct and substantial beneficial

interest. (Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 170.) In making the

latter determination, the court did not refer to Waste Management, supra, 79 Cal.App.4th

1223 or its discussion of beneficial interest standing. (Save the Plastic Bag Coalition,

supra, at p. 170.) Thus, contrary to SLRR's assertion, the court did not disapprove of

Waste Management's analysis of direct and substantial beneficial interest in Save the

Plastic Bag Coalition, but instead disapproved only of its discussion of the right of a

private corporation to assert public interest standing in a citizen suit. (Save the Plastic

Bag Coalition, supra, at pp. 167, 170.)

Here, SLRR does not assert public interest standing, nor could it. As discussed,

the statutes at issue created a mechanism and oversight for redistributing profits within

the horse racing industry to address the increased cost of off-site stabling during races

due to rising horse populations. They do not relate to or seek to protect a public interest

such as the environmental concerns at issue in Waste Management, supra, 79

Cal.App.4th 1223 and Save the Plastic Bag Coalition, supra, 52 Cal.4th 155. Therefore,

Save the Plastic Bag Coalition's discussion of public interest standing as a citizen is not

applicable here.

Moreover, the discussion of beneficial interest standing in Save the Plastic Bag

Coalition, supra, 52 Cal.4th 155 also does not alter our conclusion that SLRR lacks

17 standing based on a direct and beneficial interest. In Save the Plastic Bag Coalition, the

city banned the use of plastic bags, thereby eliminating the market for plastic bags and

directly and substantially effecting the business of the coalition members. To the

contrary here, the CHRB did not ban the use of off-site stabling, or any other services, at

SLRR's facilities; it simply decided the demand for such stabling during race meetings

had decreased and it would only provide reimbursement to a more limited number of

facilities. Although SLRR may have been in a less competitive position, like Waste

Management, it was not banned outright from offering a product or service, like the Save

the Plastic Bag Coalition members.

The other cases SLRR relies upon are similarly distinguishable. In J&K Painting

Co. Inc. v. Bradshaw (1996) 45 Cal.App.4th 1394, a subcontractor had standing to pursue

a writ requiring the state to release certain funds to a third party contractor, but there the

state withheld the funds due to a purported labor law violation of the subcontractor, and

the contractor had, therefore, withheld an equal sum from the subcontractor. Thus, the

subcontractor had a direct interest in the state releasing the funds to the contractor, who

was in turn contractually obligated to release the funds to the subcontractor. In Doe v.

Albany Unified School District (2010) 190 Cal.App.4th 668, 683-684, the court held a

child had a beneficial interest in a mandamus claim regarding the district's compliance

with a statute regarding physical education because the child was deprived of a portion of

the mandated biweekly minutes of physical education. Thus, in both cases, the petitioner

was able to demonstrate an actual and concrete harm, a deprivation of funds or physical

18 education time, the requested writ would directly address. SLRR cannot point to a

similar harm, or benefit, directly addressed by the writ it requests.

We therefore conclude the superior court correctly applied Waste Management

and Save the Plastic Bag Coalition, supra, 52 Cal.4th 155 to determine SLRR has only an

indirect competitive interest in the outcome of the writ and not a direct and beneficial

interest sufficient to confer standing. (See Waste Management, supra, 79 Cal.App.4th at

pp. 1228-1229.)

II

SLRR WAIVED ARGUMENT BY FAILING TO FILE A

WRIT PETITION WITHIN 30 DAYS

The CHRB also asserts that, even if SLRR had standing, SLRR waived its right to

challenge any jurisdictional issues by failing to file a writ petition within 30 days of the

disputed order. (See § 19463.) SLRR asserts the CHRB waived any argument regarding

timeliness of the petition by failing to raise it below, but SLRR misrepresents the record;

the CHRB did include affirmative defenses in its answer asserting the petition was an

improper attempt at a rehearing and that the statute of limitations barred the petition. We

therefore address the merits of the waiver argument and conclude that, if SLRR had

standing, it still could not pursue its writ petition based on the statute of limitations.

Section 19463 requires a party to commence a legal action challenging any final

administration action of the CHRB within 30 days of the board's action. (§ 19463; see

Capitol Racing LLC v. California Horse Racing Bd. (2008) 161 Cal.App.4th 892, 900

19 [concluding § 19463 governs challenges to administrative orders of the CHRB].) Here,

following a regularly noticed meeting, the CHRB issued a formal order adopting the

recommendation of the LLRC. SLRR asserts the CHRB no longer had jurisdiction to

issue the order but section 19463 required SLRR to file a petition, or another appropriate

pleading, within 30 days of the April 28, 2016 order to make that argument in the

superior court. SLRR did not challenge the final order of the board, or any of the

intermittent orders leading up to that final order, until the following February, almost a

full year later.

SLRR argues it was not subject to any statute of limitations because its petition

asserted the CHRB, a state agency, took action without the authority to do so. SLRR

relies exclusively on Miller v. Board of Medical Quality Assurance (1987) 193

Cal.App.3d 1371, 1373 to support this argument, but there the court found the 30-day

statute of limitations did bar a physician's petition for writ of mandate. Thus, SLRR's

assertions remain unsupported.

SLRR also asserts it was not subject to the 30-day time limitation because the

superior court had ongoing jurisdiction based on its original petition for writ of

mandamus. However, that petition was filed before the orders of the CHRB that SLRR

now disputes and, as such, logically could not have included those orders. Moreover, the

stay order issued by the superior court recognized the CHRB's primary jurisdiction to

decide issues related to the use of the statutory funds and stayed the case in the interest of

judicial efficiency, without reserving its own jurisdiction for the ongoing judicial review

20 of the CHRB's decision. (Cf. Morrison v. California Horse Racing Bd. (1988) 205

Cal.App.3d 211, 216 [trial court order on original writ petition expressly provided for

judicial review of CHRB's decision after remand sufficient to confer ongoing jurisdiction,

effectively tolling the 30-day limitations period].) SLRR needed to file a secondary writ

petition in a timely manner to dispute any further orders of the CHRB, and SLRR failed

to do so.

Based on the foregoing, we conclude SLRR has not established the statute of

limitations is not applicable in the present case, and, as SLRR filed the petition more than

30 days after the CHRB's order adopting the LLRC's recommendations, we agree SLRR's

petition would be time barred even if SLRR had standing.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

21 Filed 9/6/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAN LUIS REY RACING, INC., D069680

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2011-00096586-

CU-BT-CTL)

CALIFORNIA HORSE RACING BOARD,

ORDER CERTIFYING OPINION

Defendant and Respondent. FOR PUBLICATION

THE COURT:

The opinion in this case filed August 14, 2017 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the Defendant and Respondent's request pursuant to California Rules of Court, rule 8.1120(a) for publication is granted.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.

McCONNELL, P. J.

Copies to: All parties