PICKARD, Associate Justice *.
The issue to be decided in this case is whether plaintiff-appellant, owner of a racehorse, can state a cause of action in tort for loss of winnings in a horse race that he allegedly would have received had his horse's stride not been interfered with by defendant-respondent jockey of another horse running in the same race.
Because respondent has failed to file a reply brief, we will "accept as true the statement of facts in the appellant's opening brief." (Cal.Rules of Court, rule 17(b).) Appellant's opening brief sets forth the statement of facts as follows:
On October 24, 1982, appellant's horse, Bat Champ, a standardbred trotter, participated in the eighth race at Hollywood Park in Inglewood, California. Also entered in the race was The Thilly Brudder driven by defendant-respondent, Gerald Longo (Longo). During the race, Longo drove The Thilly Brudder into Bat Champ's path and whipped Bat Champ with his whip, thereby causing Bat Champ to break stride. Bat Champ finished the race in fifth place. Thereafter, the Horse Racing Board, by and through the track steward, reviewed the events of the race and disqualified The Thilly Brudder.
On December 3, 1982, plaintiff-appellant filed a complaint for damages against Longo in which he asserted three causes of action: (1) that Longo negligently interfered with Bat Champ, (2) that Longo intentionally interfered with Bat Champ, and (3) that Longo and unidentified individuals (Does I through X) conspired to interfere with Bat Champ's progress in the race.
Thereafter, the complaint was served and Longo demurred thereto, alleging that the Los Angeles Superior Court had no subject matter jurisdiction of the causes of action based upon Business and Professions Code section 19440, and that each and every cause of action failed to state facts sufficient to constitute a cause of action. Longo's demurrer was sustained without leave to amend on the latter grounds. Plaintiff now appeals, from the order of dismissal, arguing that the complaint does state facts sufficient to constitute a cause of action, or could be so pled to set forth facts sufficient to constitute a cause of action. We disagree.
As a preliminary matter, we again note that respondent has not filed a brief. Thus,
"[R]ule 17(b) of the California Rules of Court is applicable to this appeal. Courts have differed in the application of this rule with some taking a strict view and holding that the failure to file a brief was in effect a consent to a reversal (Grand v. Griesinger (1958) 160 Cal.App.2d
In his brief, appellant argues that the legislature has never vested exclusive jurisdiction in the California Horse Racing Board for the regulation of horse races. To the contrary, he asserts "it is clear that the California legislature did not intend the California Horse Racing Board to have exclusive jurisdiction." In support of this argument appellant maintains that the legislature has neither expressly nor impliedly limited claims involving the conduct of a horse race to remedies provided by the California Horse Racing Board.
397 [325 P.2d 475] ), or an abandonment of any attempt to support the judgment. (Roth v. Keene (1967) 256 Cal.App.2d 725 [64 Cal.Rptr. 399].) Since the burden is always on the appellant to show error, other courts have taken the position that the failure to file a brief does not require an automatic reversal. (Perfection Paint Products v. Johnson (1958) 164 Cal.App.2d 739 [330 P.2d 829]; Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224 [74 Cal.Rptr. 749].) The better rule and the one which we follow is to examine the record on the basis of appellant's brief and to reverse only if prejudicial error is found. (Baldwin v. Baldwin (1944) 67 Cal.App.2d 175 [153 P.2d 567]; Jarvis v. O'Brien (1957) 147 Cal.App.2d 758 [305 P.2d 961].)" (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55, 131 Cal.Rptr. 335; see also Walker v. Porter (1974) 44 Cal.App.3d 174, 177, 118 Cal.Rptr. 468.)
We find that the opinion of the California Supreme Court in Flores v. Los Angeles Turf Club (1961) 55 Cal.2d 736, 13 Cal.Rptr. 201, 361 P.2d 921, discovered through our own research, is on point in assessing the merits of appellant's argument. Although that case involved a claim significantly different from the one at bench (plaintiff therein sought an injunction and damages for exclusion from a race track), the Supreme Court discussed at length several statutory provisions which also apply to this case.
The court in Flores stated that:
"[P]ursuant to article IV, section 25a of the California Constitution, the Legislature has enacted a comprehensive scheme of legislation designed to regulate almost every aspect of legalized horse racing and wagering. Section 19420 of the Business and Professions Code provides: 'Jurisdiction and supervision over meetings in this State where horse races with wagering on their results are held or conducted, and over all persons or things having to do with the operation of such meetings, is vested in the California Horse Racing Board.' Business and Professions Code, section 19562 (formerly § 19561) provides that the racing board 'may prescribe rules, regulations, and conditions, consistent with the provisions of this chapter, under which all horse races with wagering on their results shall be conducted in this State.' The delegation of such rule-making power to the racing board, and the delegating legislation, was upheld in Sandstrom v. California Horse Racing Board [1948] 31 Cal.2d 401, 413 . In implementation of this delegation of power, the racing board has promulgated rules providing for the exclusion of certain persons from places where racing and wagering are held and establishing, under section 19561.5, a system of administrative hearings in order that such persons may be afforded the opportunity to contest its rulings. The results of such hearings are, as provided by statute, subject to judicial review." (Id., at pp. 745-746, 13 Cal.Rptr. 201, 361 P.2d 921.)
Similarly, section 19440 of the Business and Professions Code provides as follows:
"The board shall have all powers necessary and proper to enable it to carry out fully and effectually the purposes of this chapter. Responsibilities of the board shall include, but not be limited to:
"...
"(2) Administration and enforcement of all laws, rules and regulations affecting horseracing and parimutuel wagering
"(3) Adjudication of controversies arising from the enforcement of those laws and regulations dealing with horseracing and parimutuel wagering;
"...
"The board may delegate to stewards such of its powers and duties as is necessary to carry out fully and effectuate the purposes of this chapter.
"Commissioners shall personally review hearings of any case referred to the board by the stewards, or appealed to the board from stewards' decisions. If requested by an appellant, the board chairman shall assign two commissioners to hear an appeal at a time and place convenient to the appellant and to the board...."
Pursuant to this delegation of power, the racing board has promulgated rules relating to the conduct of participants during a horse race:
"During the running of the race:
"(a) A leading horse is entitled to any part of the course but when another horse is attempting to pass in a clear opening the leading horse shall not impede that passing horse by crossing over so as to compel the passing horse to shorten its stride.
"(b) A horse shall not interfere with or cause any horse to lose stride, lose ground or lose position in a part of the race where the horse interfered with loses the opportunity to place where he might be reasonably expected to finish.
"(c) A horse which interferes with another and thereby causes any other horse to lose stride, lose ground, or lose position, when such other horse is not in fault and when such interference occurs in a part of the race where the horse so interfered with loses the opportunity to place where he might, in the opinion of the stewards, be reasonably expected to finish, may be disqualified and placed behind the horse so interfered with.
"(d) A jockey shall not ride carelessly or willfully so as to permit his or her mount to interfere with or impede any other horse in the race.
"(e) A jockey shall not willfully strike or strike at another horse or jockey so as to impede, interfere with, intimidate, or injure the other horse or jockey.
"(f) If a jockey rides in a manner contrary to this rule, his or her mount may be disqualified and he or she may be suspended or otherwise disciplined." (Cal.Admin.Code, tit. 4, § 1699.)
An owner of a horse is then given an opportunity to make a claim of interference with his horse immediately after a race:
"A jockey, trainer or owner of a horse, who has reasonable grounds to believe that his horse was interfered with or impeded or otherwise hindered during the running of the race, or that any riding rule was violated by any other jockey or horse during the running of the race, may immediately make a claim of interference or foul with the clerk of scales, the stewards or their delegate before the race has been declared official. The stewards may thereupon hold an inquiry into the running of the race. No person shall make any claim of interference or foul knowing the same to be inaccurate, false or untruthful." (Cal.Admin.Code, tit. 4, § 1702.)
The steward is given the express authority to punish a horse and those who are licensed by the board and are found to have violated a riding rule:
"The stewards shall determine the...
