Filed 12/19/13 Swyak v. Cal. Horse Racing Board CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




ALEXANDER SYWAK,                                                                        C072803

                   Plaintiff and Appellant,                                    (Super. Ct. No.
                                                                      34-2011-80001021 CU WM GDS)
         v.

CALIFORNIA HORSE RACING BOARD,

                   Defendant and Respondent.




         Defendant California Horse Racing Board (CHRB) suspended plaintiff Alexander
Sywak’s racehorse trainer license for 30 days and fined him $1,500, after a horse he had
entered in a race tested positive for a performance-enhancing drug. Sywak did not
administer the drug but, as a licensed trainer, Sywak is the absolute insurer of the
condition of any horse he enters in a race.

         We shall affirm the trial court’s judgment denying Sywak’s petition for writ of
administrative mandate.



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                   FACTUAL AND PROCEDURAL BACKGROUND

       Sywak was the trainer of the horse “Don’tblocktheshot,” which finished third in a
race at Golden Gate Fields on November 13, 2010, collecting a purse of $1,230.

       Tests after the race disclosed that the horse had Clenbuterol levels of 60 picograms
(pg) per milliliter (ml) in its blood and 7.9 nanograms (ng) per ml in its urine, a “Class 3”
drug violation, which sets limits of 25 pg/ml (blood) and 5 ng/ml (urine). (Cal. Code
Regs., tit. 4, § 1844, subds. (e)(9), (f).)1

       Alphonso Coyt admitted he put the Clenbuterol in the horse’s morning feed on
November 9, 2010, without the knowledge or permission of the horse’s owner (Jesus
Coyt) or Sywak.

       The following day, November 10, 2010, Sywak entered the horse for the eighth
race at Golden Gate Fields on November 13, 2010.

       Sywak took possession of the horse on November 12, 2010.

       In the first level of administrative adjudication, the Board of Stewards of the
Pacific Racing Association (the Association) charged Sywak with, and found that, he
violated Regulations sections 1843, subdivisions (a) (a horse in a race shall not have a
prohibited drug in its body) and (d) (a finding of an impermissible drug level shall be
prima facie evidence against the trainer), 1844, subdivisions (e)(9) and (f) (setting the
permissible limits for Clenbuterol specified above), and 1894 (trainers are responsible for
the condition of horses in their care and are presumed to know the rules). Based on these
findings, the Association suspended Sywak’s license for 30 days and fined him $3,000
pursuant to Regulations section 1887 (the trainer is the absolute insurer of his or her
racehorse’s condition).



1 Undesignated references to regulations are to title 4 of the California Code of
Regulations (Regulations).

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       Sywak appealed the Association’s decision for a de novo review before an
administrative law judge (ALJ). Like the Association, the ALJ found that Sywak
violated Regulations sections 1843, subdivisions (a) and (d), 1844, subdivisions (e)(9)
and (f), 1894 and 1887. The ALJ affirmed in part and amended in part the Association’s
decision, retaining the 30-day license suspension but reducing the fine to $1,500.

       The CHRB then adopted the ALJ’s decision as its own.

       Sywak in turn unsuccessfully petitioned the trial court for a writ of administrative
mandate to overturn the CHRB’s decision.

       This appeal ensued.

                                      DISCUSSION

       Sywak’s briefing is difficult to follow. We will do our best with what has been
provided.

        I. The CHRB Regulations Sywak Violated Were Legally Authorized

       Sywak argues he did not violate any equine medication statutes, or any regulations
thereunder, because Business and Professions Code section 195812 defines the only
violation involving equine medication, and he did not violate section 19581, as the
Clenbuterol was administered one day before the horse was entered in the race (the
Clenbuterol was administered on Nov. 9, 2010; the horse was entered in the race on
Nov. 10).

       Section 19581 states, as pertinent, “No substance of any kind shall be administered
by any means to a horse after it has been entered to race in a horse race, unless the
[CHRB] has, by regulation, specifically authorized the use of the substance and the
quantity and composition thereof.” (Italics added.)


2 Undesignated statutory references are to the Business and Professions Code.


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       Sywak posits, rather logically, that if he did not violate section 19581, how could
he have violated any regulation based on that statute?

       In this argument, Sywak has taken to heart the adage that if the facts are not on
your side, argue the law. Unfortunately for Sywak, the law is not on his side either.

       Contrary to Sywak’s position, section 19581 does not define the only violation
involving equine medication. Section 19580 specifies, “The [CHRB] shall adopt
regulations to establish policies, guidelines, and penalties relating to equine medication in
order to preserve and enhance the integrity of horse racing in the state. Those policies,
guidelines, and penalties shall include, at a minimum, the provisions set forth in this
article.” (§ 19580, subd. (a), which precedes § 19581 [both are included at div. 8, ch. 4,
art. 8.5 under the heading “Equine Medication”].) The regulations Sywak was found to
have violated—Regulations sections 1843, subdivisions (a) and (d), 1844, subdivisions
(e)(9) and (f), 1887 and 1894—are legally authorized under section 19580.

       Furthermore, as the CHRB’s decision notes, Sywak was not charged with
violating section 19581.

       In a related vein, Sywak takes issue with the absolute nature of Regulations
section 1887. Section 1887 states 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
[and] [i]f . . . urine or blood test samples [show] the presence of any prohibited drug
substance . . . , the trainer of the horse may be fined, [or] his/her license suspended or
revoked . . . .” (Regs., § 1887, subd. (a).) Sywak concedes that Don’tblocktheshot ran
the race with a legally impermissible level of Clenbuterol in its system. To ensure the
integrity of horse racing and related betting, the absolute nature of this regulation has
been deemed necessary for a long time. (See Sandstrom v. California Horse Racing Bd.
(1948) 31 Cal.2d 401, 409 [discussing Regs., § 1887’s predecessor].) Sywak must direct



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his policy-based objections to this regulation to the appropriate legislative rulemaking
bodies, rather than to us.

                             II. Sywak Received Due Process

       Sywak contends he was denied due process because (1) the CHRB failed to inform
him that the state Administrative Procedures Act (the Act) (Gov. Code, § 11340 et seq.)
governed the Association’s hearing; (2) the CHRB failed to inform him that the Act
governed the appeal hearing before the ALJ; and (3) the CHRB failed to provide him
with the Association’s decision for the ALJ appeal hearing.

       As for his first contention, Sywak has forfeited it by failing to object to this
alleged deficiency at the Association’s hearing. (See Eisenberg et al., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2013) § 1:44, p. 1-10.1 (rev. #1,
2011).)

       As for his parallel second contention, Sywak himself presented evidence that he
was informed of the Act’s applicability prior to the ALJ appeal hearing.

       That leaves Sywak’s third contention—the CHRB’s failure to provide him with
the Association’s decision for the ALJ appeal hearing. Sywak is correct that the CHRB
improperly failed to provide him this decision. However, the ALJ, at Sywak’s request,
continued the ALJ appeal hearing for nearly three weeks, in part so Sywak could review
this decision and relevant CHRB precedents. Moreover, the record shows Sywak
received notice of the Association’s decision because he timely appealed that decision to
the ALJ.

       In related fashion, Sywak complains the ALJ improperly failed to admit into
evidence, at the ALJ appeal hearing, the Association’s decision. We disagree. The ALJ
properly noted this decision was a jurisdictional document rather than an evidentiary one,
for purposes of the ALJ hearing. Sywak further complains the CHRB failed to specify its


                                              5
relevant precedents prior to the hearings before the Association and the ALJ. In
representing himself, though, Sywak had the task of ascertaining these decisions; the
CHRB, as his adversary, was not responsible for making his case.

       We conclude that Sywak received due process.

                                 III. Evidentiary Issues

       Sywak raises two evidentiary points.

       First, Sywak contends the superior court judge “erred when he agreed with the
[CHRB] that [Sywak] was deficient in not being able to recall if he asked about
medication administration” regarding Don’tblocktheshot.

       This contention essentially asserts there was insufficient evidence to support this
finding. But Sywak has forfeited this claim of insufficient evidence because he sets forth
in his briefing only the evidence favorable to him, ignoring the unfavorable. (Oliver v.
Board of Trustees (1986) 181 Cal.App.3d 824, 832.) Furthermore, the actual finding at
issue is that Sywak (as he himself admitted at the Association hearing) did not
specifically ask the horse owner or the groom about medications, but rather had only a
“general discussion” about entering Don’tblocktheshot in the race.

       Second, Sywak contends “[t]he [Association], the ALJ and the superior court
stressed that [Sywak] was warned by [Steward Darrell] McHargue at a prior informal
hearing concerning inadequate work[out]s for a horse entered to race, as to when to bring
a horse in prior to a race.” Sywak maintains that “[t]hat [prior] hearing had nothing to do
with medication issues,” and therefore this evidence was irrelevant (and consequently
inadmissible). But McHargue explained at the Association hearing here that, regarding
this issue of inadequate workouts, “there was a caution placed towards [Sywak] about the
travails of allowing a horse to come in and run under his name that may be under
somebody else’s care, [including] possible medication clearances . . . .” Moreover,


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Sywak does not set forth pinpoint cites to the record, at which the ALJ (in her de novo
hearing) or the superior court supposedly improperly considered this evidence, and
forfeits this issue to that extent.3 (Cal. Rules of Court, rule 8.204(a)(1)(C).)

                                      DISPOSITION

       The judgment is affirmed. The CHRB is awarded its costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1), (2).)




                                                         BUTZ                      , J.



We concur:



      NICHOLSON              , Acting P. J.



      HULL                   , J.




3 Sywak lastly contends he “was not totally at blame for incorrectly formatting the
petition and administrative record filing.” Any such formatting has not affected our
review of this case.

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