Miller v. Fortune Commercial Corporation ( 2017 )

Filed 9/12/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JOEY MILLER, B271214
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. LC098458)
v.
FORTUNE COMMERCIAL
CORPORATON et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Russell S. Kussman, Judge. Affirmed.
Litigation & Advocacy Group and Glenn A. Murphy for
Plaintiff and Appellant.
Weintraub Tobin Chediak Coleman Grodin, Zachary
Smith and Brendan J. Begley for Defendants and
Respondents Fortune Commercial Corporation et al.
Green & Marker and Richard A. Marker for Defendant
and Respondent We Service America, Inc.
——————————
Joey Miller (Miller) sued defendant Fortune
Commercial Corporation, the owner and operator of a chain
of Seafood City markets, and several other defendants
(collectively, Defendants), because, allegedly, they illegally
denied him service when he tried to enter two different
Seafood City stores with his service dog. Miller alleged three
causes of action: violation of the Unruh Civil Rights Act
(Civ. Code, § 51 et seq. (Unruh Act)1); violation of the
Disabled Persons Act (§ 54 et seq. (DPA)); and intentional
infliction of emotional distress. Defendants moved for
summary judgment arguing principally that Miller’s dog was
not a fully trained service animal at the time of the alleged
incidents, that Miller did not bring his dog to the markets for
the purpose of training her, and that in any event neither
Miller, who suffers from a disability, nor his stepfather who
accompanied him to the markets, were, respectively, capable
or authorized to train a service dog. The trial court granted
Defendants’ motion.
On appeal, Miller argues that, at the time of the
alleged incidents, his dog Roxy had received, not only
obedience training, but also some meaningful training as a
service animal—that is, Roxy had been trained to respond to
1
All further statutory references are to the Civil Code
unless otherwise indicated.
2
certain symptoms of Miller’s disability (e.g., Roxy could
prevent Miller from wandering away from home and getting
lost) and that as a result he was permitted by law to bring
Roxy into the markets. In addition, Miller contends that he
was permitted by law to take Roxy into Defendants’ markets
for the purpose of training her further.
We are not persuaded by Miller’s arguments.
Accordingly, we affirm the judgment.
BACKGROUND
I. Miller and Roxy
In May or early June of 2012, Miller acquired Roxy, a
one-year old female mixed-breed (German Shepherd-
Labrador Retriever) dog. Miller’s stepfather, Joseph
Scribner (Scribner), purchased Roxy to be Miller’s service
dog and thereby help him become “more independent.”
Miller, who was 20 years old at the time, has an IQ between
50 and 75 suffers from both an “intellectual disability and
autism”; these twin conditions allow him to function at only
a level “somewhere between a third- to a sixth-grader, or a 9-
to 12-year-old” boy.
Scribner purchased Roxy from a “regular pet store.”
When Scribner purchased Roxy, the dog had received basic
obedience training. After acquiring Roxy, Miller and his
family worked on training her further to be a service animal;
in addition, Miller’s family arranged to have an instructor
work with Miller and Roxy at a Petco store in June or
July 2012 in order to “teach [Miller] how to handle a dog.”
3
II. Miller and Roxy at Seafood City markets
In August 2012, Scribner took Miller and Roxy to a
mall parking lot in North Hills, California. They were there
to purchase a Play Station PSP gaming device for Miller as a
“reward” for his “tremendous” improvements with Roxy.
Located at the mall was a Seafood City market. Before then,
Scribner had never been to a Seafood City market; in fact he
didn’t even know the store existed. After purchasing the
device, Scribner took Miller and Roxy into the Seafood City
market to buy some seafood because seafood was one of
Miller’s favorite foods. Almost immediately after entering
the store, Scribner and Miller were stopped by an employee
who told them they could not bring a pet into the store.
Although Miller was “upset” after being asked to leave the
store, Scribner discovered that there was another Seafood
City market nearby and drove to that store, where “the same
thing basically happen[ed],” except that “they were a little
nicer at the second [store] than the first one.”
III. Miller’s lawsuit
Miller filed suit in September 2012. In June 2015,
Defendants moved for summary judgment, relying primarily
on deposition testimony by Scribner and Miller. Miller
opposed the motion by relying primarily on a postdeposition
declaration by Scribner.2 Neither side offered any expert
2
Although the trial court found that Scribner’s
declaration to be “conclusory and unpersuasive” and at odds
in many respects with his prior deposition testimony, it
overruled Defendants’ objections to it.
4
testimony about service animals and their training,
generally or with respect to Miller’s specific disability.
On September 8, 2015, the trial court, after hearing
oral argument from the parties, granted Defendants’ motion.
On December 11, 2015, the trial court issued a 34-page
written ruling and order on the motion. On January 25,
2016, judgment was entered in favor of the Defendants.
Miller timely appealed.
DISCUSSION
I. Standard of review
“The purpose of the law of summary judgment is to
provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th
826, 843 (Aguilar).) Summary judgment is proper only
where “ ‘there is no triable issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.’ ” (Code Civ. Proc., § 437c, subd. (c); Aguilar, at
p. 843.)
A defendant seeking summary judgment is required to
show that “ ‘one or more elements of the cause of
action . . . cannot be established, or that there is a complete
defense to the cause of action.’ ” (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Saelzler v.
Advanced Group 400 (2001) 25 Cal. 4th 763, 768.)
Once the defendant has met his or her threshold
requirement, the burden shifts to the plaintiff to show the
5
existence of one or more triable issues of material fact.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25
Cal.4th at p. 850.) In order to meet this burden, the plaintiff
must “ ‘set forth the specific facts showing that a triable
issue of material fact exists as to that cause of action or a
defense thereto.’ ” (Aguilar, at p. 849.) A triable issue of
material fact may not be created by speculation or a “stream
of conjecture and surmise.” (Dumin v. Owens–Corning
Fiberglas Corp. (1994) 28 Cal. App. 4th 650, 656; Lineaweaver
v. Plant Insulation Co. (1995) 31 Cal. App. 4th 1409, 1421.)
Instead, the plaintiff must produce “substantial responsive
evidence.” (Sangster v. Paetkau (1998) 68 Cal. App. 4th 151,
162–163.)
In considering the evidence submitted by the parties,
the trial court does not “weigh the plaintiff’s evidence or
inferences against the defendants’ as though it were sitting
as the trier of fact.” (Aguilar, supra, 25 Cal.4th at p. 856.)
However, “it must nevertheless determine what any
evidence or inference could show or imply to a reasonable
trier of fact. . . . In so doing, it does not decide on any finding
of its own, but simply decides what finding such a trier of
fact could make for itself.” (Ibid., fn. & italics omitted.)
Where the standard of proof is preponderance of the
evidence, if any evidence or inference presented or drawn by
the plaintiff shows or implies that the elements of the cause
of action were more likely than not satisfied, summary
judgment must be denied, because a reasonable trier of fact
could find for the plaintiff. Otherwise, there is no triable
6
issue of material fact, and summary judgment should be
granted. (See id. at pp. 856–857; see also Leslie G. v. Perry
& Associates (1996) 43 Cal. App. 4th 472, 483.)
We review the trial court’s grant of summary judgment
de novo, applying the same standards that governed the trial
court. (Zavala v. Arce (1997) 58 Cal. App. 4th 915, 925.) We
consider all of the evidence the parties offered in connection
with the motion (except any which the court properly
excluded) and the uncontradicted inferences the evidence
reasonably supports. (Artiglio v. Corning Inc. (1998) 18
Cal. 4th 604, 612.)
II. Principles of statutory interpretation
“We begin with the fundamental rule that our primary
task is to determine the lawmakers’ intent.” (Delaney v.
Superior Court (1990) 50 Cal. 3d 785, 798.) “In construing
statutes, we aim ‘to ascertain the intent of the enacting
legislative body so that we may adopt the construction that
best effectuates the purpose of the law.’ ” (Klein v. United
States of America (2010) 50 Cal. 4th 68, 77 (Klein).)
California courts “have established a process of statutory
interpretation to determine legislative intent that may
involve up to three steps.” (Alejo v. Torlakson (2013) 212
Cal. App. 4th 768, 786–787 (Alejo).) The “key to statutory
interpretation is applying the rules of statutory construction
in their proper sequence . . . as follows: ‘we first look to the
plain meaning of the statutory language, then to its
legislative history and finally to the reasonableness of a
proposed construction.’ ” (MacIsaac v. Waste Management
7
Collection & Recycling, Inc. (2005) 134 Cal. App. 4th 1076,
1082 (MacIsaac).)
“The first step in the interpretive process looks to the
words of the statute themselves.” (Alejo, supra, 212
Cal.App.4th at p. 787; see Klein, supra, 50 Cal.4th at p. 77
[“ ‘statutory language is generally the most reliable indicator
of legislative intent’ ”].)
“If the interpretive question is not resolved in the first
step, we proceed to the second step of the inquiry. [Citation.]
In this step, courts may ‘turn to secondary rules of
interpretation, such as maxims of construction, “which serve
as aids in the sense that they express familiar insights about
conventional language usage.” ’ [Citation.] We may also
look to the legislative history. [Citation.] ‘Both the
legislative history of the statute and the wider historical
circumstances of its enactment may be considered in
ascertaining the legislative intent.’ [Citation.] [¶] ‘If
ambiguity remains after resort to secondary rules of
construction and to the statute’s legislative history, then we
must cautiously take the third and final step in the
interpretive process. [Citation.] In this phase of the process,
we apply “reason, practicality, and common sense to the
language at hand.” [Citation.] Where an uncertainty exists,
we must consider the consequences that will flow from a
particular interpretation. [Citation.] Thus, “[i]n
determining what the Legislature intended we are bound to
consider not only the words used, but also other matters,
‘such as context, the object in view, the evils to be remedied,
8
the history of the times and of legislation upon the same
subject, public policy and contemporaneous construction.’
[Citation.]” [Citation.] These “other matters” can serve as
important guides, because our search for the statute’s
meaning is not merely an abstract exercise in semantics. To
the contrary, courts seek to ascertain the intent of the
Legislature for a reason—“to effectuate the purpose of the
law.” ’ ” (Alejo, supra, 212 Cal.App.4th at pp. 787–788; see
MacIsaac, supra, 134 Cal.App.4th at pp. 1083–1084.)
We do not necessarily engage in all three steps of the
analysis. “It is only when the meaning of the words is not
clear that courts are required to take a second step and refer
to the legislative history.” (Soil v. Superior Court (1997) 55
Cal. App. 4th 872, 875.) “If ambiguity remains after resort to
secondary rules of construction and to the statute’s
legislative history, then we must cautiously take the third
and final step in the interpretative process.” (MacIsaac,
supra, 134 Cal.App.4th at p. 1084.)
III. Defendants were entitled to judgment as a
matter of law on the Unruh Act claim
A. THE UNRUH ACT AND SERVICE DOGS
The Unruh Act broadly outlaws arbitrary
discrimination in public accommodations and includes
disability as one among many prohibited bases. (§ 51,
subd. (b).) As part of the 1992 reformation of state disability
law, the Legislature amended the Unruh Act to incorporate
by reference the federal Americans with Disabilities Act of
1990 (42 U.S.C. § 12101 et seq.; (ADA)), making violations of
9
the ADA per se violations of the Unruh Act. (§ 51, subd. (f);
Munson v. Del Taco, Inc. (2009) 46 Cal. 4th 661, 668–669
(Munson).) The ADA, like the Unruh Act, prohibits
discrimination on the basis of disability in the enjoyment of
public accommodations. (42 U.S.C. § 12182.)
Although the Unruh Act does not expressly address
service dogs, the ADA’s accompanying regulations do.3
“Service animal means any dog that is individually trained
to do work or perform tasks for the benefit of an individual
3
In relying on a federal statute for our analysis, we are
mindful of the differences between the ADA and the Unruh
Act. (Munson, supra, 46 Cal.4th at p. 669.) However, where,
as here, the issue is discrimination, California courts
routinely look to federal statutes, regulations, and case law
for guidance. For example, as our Supreme Court has stated
in the context of employment discrimination, “[b]ecause of
the similarity between state and federal employment
discrimination laws, California courts look to pertinent
federal precedent when applying our own statutes.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal. 4th 317, 354.) Moreover,
where federal courts have addressed discrimination issues
that California courts have yet to consider, those federal
decisions “provide substantial guidance.” (Gelfo v. Lockheed
Martin Corp. (2006) 140 Cal. App. 4th 34, 55.) In addition, as
our Supreme Court has noted, “ ‘conformity [to the ADA
rules] will benefit employers and businesses because they
will have one set of standards with which they must comply
in order to be certain that they do not violate the rights of
individuals with physical or mental disabilities.’ ” (Green v.
State of California (2007) 42 Cal. 4th 254, 263.)
10
with a disability, including a physical, sensory, psychiatric,
intellectual, or other mental disability. Other species of
animals, whether wild or domestic, trained or untrained, are
not service animals for the purposes of this definition. The
work or tasks performed by a service animal must be directly
related to the individual’s disability. . . . The crime deterrent
effects of an animal’s presence and the provision of
emotional support, well-being, comfort, or companionship do
not constitute work or tasks for the purposes of this
definition.” (28 C.F.R. § 36.104.4)
The ADA regulation notably uses the past tense in
describing a service dog—“trained.” In other words, the
language of the ADA regulation indicates that a dog that is
in the process of being trained as a service animal, but
whose training has not yet been completed, cannot yet be
considered a service animal.5 This interpretation is
4
The ADA’s definition of a “service animal” conforms
rather closely with the Penal Code’s definition of a “service
dog”: “ ‘service dog’ means any dog individually trained to do
work or perform tasks for the benefit of an individual with a
disability, including, but not limited to, minimal protection
work, rescue work, pulling a wheelchair, or fetching dropped
items.” (Pen. Code, § 365.5, subd. (f).)
5
To “train” someone or something means “to teach or
exercise (someone) in an art, profession trade or occupation;
direct in attaining a skill: give instruction to.” (Webster’s
Third New International Dict. (2002) p. 2424, col. 2.)
Consequently, when someone or something has been
11
supported by recent case law, Davis v. Ma (C.D. Cal. 2012)
848 F. Supp. 2d 1105. In that case, the defendant restaurant,
a Burger King, denied the plaintiff customer service because
he had a puppy with him. The customer, alleging among
other things, a violation of the ADA and intentional
infliction of emotional distress, sued the restaurant, claiming
that he was in the process of training the puppy to be a
service animal: the puppy, which had a service dog tag on
the day of the incident, “was not fully trained as a service
animal, but had some ‘basic obedience’ training.” (Id. at
p. 1110.) The federal district court granted summary
judgment to the restaurant, because at the time of the
incident the puppy was “not a trained service dog . . . under
any circumstances according to minimal industry standards
and practices” and plaintiff was “not a certified service dog
trainer based on industry standards.” (Id. at pp. 1111,
1114–1115.)
In 2015, the United States Department of Justice
published a set of answers to frequently asked questions
about service animals. With regard to whether “service-
animals-in-training” can be considered service animals
under the ADA, the Department of Justice answered, “No.
Under the ADA, the dog must already be trained before it can
be taken into public places.” (U.S. Department of Justice,
Civil Rights Division, Disability Rights Section “Frequently
“trained”—that is, their training has been completed—they
are now qualified to act or perform in a certain way.
12
Asked Questions about Service Animals and the ADA,” p. 2,
at
[as of August 28, 2017], italics added.)
Accordingly, we hold that the Unruh Act prohibits
arbitrary discrimination in public accommodations with
respect to trained service dogs, but not to service-dogs-in-
training.6
B. MILLER FAILED TO MEET HIS EVIDENTIARY BURDEN
Defendants met their threshold burden with regard to
the Unruh Act claim by showing that in August 2012, Roxy
was not a fully trained service dog. Specifically, Defendants
pointed to Miller’s concession earlier in the litigation that, at
all relevant times, Roxy “wasn’t fully trained” and still “in
the process of being trained.” In opposition to Defendant’s
motion, Miller offered evidence that Roxy had received some
training as a service dog, in addition to her basic obedience
training. However, Miller did not offer any evidence, let
alone substantial evidence, that Roxy was a fully trained
service animal in August 2012. In the absence of such
evidence, Defendants were entitled to judgment as a matter
of law on Miller’s Unruh Act claim.
6
On appeal, Miller argues that “[t]here is a very
significant difference between a dog that is not fully trained
and one that is not trained-at-all.” While that may be true,
it is irrelevant under the ADA and, by extension, the Unruh
Act.
13
IV. Defendants were entitled to judgment as a
matter of law on the DPA claim
A. THE DPA AND SERVICE DOGS
The DPA substantially overlaps with and complements
the Unruh Act. (Munson, supra, 46 Cal.4th at p. 675.) More
narrow in focus than the Unruh Act, it generally guarantees
people with disabilities equal rights of access “to public
places, buildings, facilities and services, as well as common
carriers, housing and places of public accommodation.” (Id.
at p. 674, fn. 8; see §§ 54, subd. (a), 54.1, subd. (a)(1).) As
with the Unruh Act, the Legislature amended the DPA to
incorporate ADA violations and make them a basis for relief
under the act. (§§ 54, subd. (c), 54.1, subd. (d); Munson, at
p. 674.)
Unlike the Unruh Act, however, the DPA does
expressly address service animals. Specifically, the DPA
identifies three types of service animal: guide dogs for the
blind; signal dogs for the deaf; and service dogs for other
disabled persons, each of which must be “especially trained”
for their purpose. (§ 54.2, subd. (a).)
Unlike the ADA, the DPA extends its protections to
disabled persons whose service animals are still in the
process of being trained. The act specifically provides that a
service animal who is in the process of being trained may be
taken into a place of public accommodation for the purpose of
furthering their training: “Individuals who are blind or
otherwise visually impaired and persons licensed to train
guide dogs for individuals who are blind or visually
14
impaired . . . and individuals who are deaf or hearing
impaired and persons authorized to train signal dogs for
individuals who are deaf or hearing impaired, and
individuals with a disability and persons who are authorized
to train service dogs for the individuals with a disability may
take dogs, for the purpose of training them as guide dogs,
signal dogs, or service dogs in any of the places specified in
Section 54.1 without being required to pay an extra charge
or security deposit for the guide dog, signal dog, or service
dog.” (§§54.2, subd. (b); 54.1, subd. (c).7)
In short, with regard to the issue of training, the DPA
recognizes three categories of people who are permitted to
bring a service animal who is in the process of being trained
into an establishment for the purpose of furthering that
training: the disabled person; persons “licensed” to train
guide dogs; and persons “authorized” to train either signal
dogs or service dogs. Although the DPA defines what it
means to be a person licensed to train guide dogs (see § 54.1,
subd. (b)(6)(C)(i); see also Bus. & Prof. Code, §§ 7209–7210,
7211–7211.1), it does not define who is authorized to train
signal dogs or service dogs. (See § 54.1, subd. (b)(6)(C)(ii)-
(iii).)
7
The Penal Code similarly provides that “[a]ny trainer
or individual with a disability may take dogs in any of the
places specified in subdivisions (a) and (b) for the purpose of
training the dogs as guide dogs, signal dogs, or service dogs.”
(Pen. Code, § 365.5, subd. (i).)
15
In the proceedings below, Miller argued that a “person
authorized to train service dogs” means any person
authorized by the disabled person to train his or her dog,
including someone such as Miller’s stepfather and guardian
ad litem, Scribner. While this interpretation is somewhat
consistent with the general meaning of “authorize,”8 it is
entirely inconsistent with the manifest intent of the statute,
which is to allow service-animals-in-training to complete
their training in a such a way that it does not jeopardize
other public policy goals, such as public health. In other
words, under Miller’s interpretation, a disabled person could
authorize someone to bring a service-animal-in-training into
a restaurant or food market who not only lacks the training
and experience to train a service dog, but who is also
reckless with regard to the health and safety of others. Such
an interpretation would make a mockery of the statute,
especially in light of the DPA’s requirement that a guide dog
must be trained by a licensed professional trainer. (§§ 54.1,
subd. (c), 54.2, subd. (b).) The guide dog provision, when
read in conjunction with the less demanding but similar
provisions for trainers of signal dogs and service dogs
(§§ 54.1, subd. (c), 54.2, subd. (b)), indicates that the
8
“[A]uthorize: to endorse, empower, justify or permit
by or as if by some recognized or proper authority.”
(Merriam-Webster Unabridged Dict. (merriam-webster.com);
accord Black’s Law Dict. (9th ed. 2009), p. 153, col. 2 [“give
legal authority; to empower . . . formally approve; to
sanction”].)
16
authority which allows someone to train a signal dog or a
service dog must be found in his or her credentialing broadly
conceived. As our Supreme Court has stated, “when
interpreting a statute, we must harmonize its various parts
if possible, reconciling them in the manner that best carries
out the overriding purpose of the legislation.” (Elsner v.
Uveges (2004) 34 Cal. 4th 915, 933.) “Related provisions
‘should be read together and construed in a manner that
gives effect to each, yet does not lead to disharmony with the
others.’ ” (Bighorn–Desert View Water Agency v. Verjil (2006)
39 Cal. 4th 205, 218.)
Consequently, based on the language and structure of
the DPA, we hold that while the Legislature intended that a
person who trains service dogs need not be licensed, he or
she nonetheless must have some other enabling authority to
engage in such training. Accordingly, we hold that “persons
authorized to train service dogs” means any person who is
credentialed to do so by virtue of their education or
experience.
B. MILLER FAILED TO MEET HIS EVIDENTIARY BURDEN
Under the DPA, either Miller or an authorized trainer
was allowed to take Roxy into a Seafood City market “for the
purpose of training” her. (§§ 54.1, subd. (c), 54.2, subd. (b).)
Defendants met their threshold burden by presenting
evidence that Roxy was not taken to the Seafood City
markets for purposes of training by either Miller or his
stepfather or guardian ad litem, Scribner, by citing, among
other things, to Scribner’s deposition testimony that the trip
17
to the market was a spur-of-the-moment decision to
purchase seafood.
Miller, however, failed to produce substantial evidence
that Roxy was taken to the Seafood City markets for the
purpose of training. First, Scribner conceded that he himself
did not enter the markets to train Roxy; he went in only to
purchase seafood; and, moreover, Miller and Roxy were not
with him in the markets. Second, although Scribner stated
in his declaration that he brought Miller and Roxy into the
market so that they could “continue the dog’s training,”
Miller did not produce evidence that he was capable of
training Roxy as a service dog on his own. Indeed, the
evidence suggests just the opposite.
At the time, Miller had owned Roxy for approximately
two months. Moreover, Miller’s mental capacity at the time
was that of a sixth or seventh grader. In fact, Scribner
joined the litigation precisely because of Miller’s limited
mental capacity—in his declaration supporting his
application to be appointed Miller’s guardian ad litem,
Scribner stated: “Joey’s disabilities cause him to get easily
confused about anything the least bit complicated.” In
addition, Miller did not present any evidence that before
getting Roxy, he had ever trained any other dog or other
animal, let alone trained a dog to be a service animal. Miller
also did not present any evidence on what role he played in
Roxy’s training prior to entering the Seafood City markets.
Scribner, in his declaration, stated that what progress had
been made in training Roxy to be a service animal in the
18
short time that they had her had been accomplished with
other members of the family and with the assistance of a
“professional dog trainer.”
While there is a presumption under California law that
the mere diagnosis of a mental disorder is not “sufficient in
and of itself to support a determination that a
person . . . lacks the capacity to do a certain act” (Prob. Code,
§ 811, subd. (d)), that presumption is a rebuttable one.
(Prob. Code, § 811, subd. (a).) Although Defendants
presented evidence Miller was not capable of training Roxy
to be his service animal, Miller, in turn, did not present
substantial admissible evidence that he had at the relevant
time the capacity to train Roxy without any assistance from
others.
Based on the evidence presented and the reasonable
inferences following therefrom, a reasonable trier of fact
would not find that it was more likely than not Miller
entered the Seafood City markets for the purpose of training
Roxy as a service dog with no assistance from anyone else.
(Aguilar, supra, 25 Cal.4th at p. 856.)
Assuming arguendo that Scribner, contrary to his
declaration, did enter the Seafood City markets for the
purpose of training Roxy and not solely to buy seafood,
Miller failed to produce substantial evidence that Scribner,
was, by virtue of his education or experience, authorized to
train Roxy as a service dog. Although he offered testimony
that Scribner had some qualities that would allow him to
train Roxy (as his stepfather, Scribner, unlike other trainers
19
would be able to “recognize symptoms of [Miller’s] mental
disability”), Miller did not offer any evidence regarding
Scribner’s education or experience as a trainer of service
animals. Nor did Miller offer any documentary evidence
(such as certificates from training academies or testimonials
from others attesting to his skill and dedication as an animal
trainer) showing that Scribner was competent to train a
service animal. In addition, Miller offered no evidence that
Scribner’s methods as a trainer of service animals were
consistent with protocols and practices accepted within the
service-dog-training industry or community.
In the absence of substantial evidence showing that
Miller visited the Seafood City markets for training
purposes, that Miller had the ability to train a service
animal to respond to his specific disability, and that Scribner
was authorized by his education or experience to train
service animals including those that can respond to his
stepson’s disability, the defendants were entitled to
judgment as a matter of law on Miller’s DPA claim.
V. Defendants were entitled to judgment as a
matter of law on the emotional distress claims
“ ‘The elements of a prima facie case for the tort of
intentional infliction of emotional distress are: (1) extreme
and outrageous conduct by the defendant with the intention
of causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff's suffering severe or
extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s
20
outrageous conduct. [Citations.] . . . Conduct to be
outrageous must be so extreme as to exceed all bounds of
that usually tolerated in a civilized community.’ ” (Wilson v.
Hynek (2012) 207 Cal. App. 4th 999, 1009.)
Here, Defendants met their threshold burden by,
among other things, presenting evidence that Seafood City
had since at least 2011 a company policy against
discriminating against people who bring their service
animals to the store and that, as a result, there was no
evidence that the Defendants intended to cause Miller any
emotional distress. In response, Miller, based upon the
deposition testimony of one of the individual defendant-
employees who testified that he had never received any
training from Seafood City about service dogs, argued that
due to Seafood City’s failure to train its employees “no such
policy actually exist[ed].”
However, as Miller concedes, his emotional distress
claim is premised on Defendants’ violation of the Unruh Act
and/or the DPA—that is, if no such violation occurred, then
there was no extreme and outrageous conduct by the
Defendants. Since we hold that Defendants are entitled to
judgment as a matter of law on Miller’s statutory claims, we
must necessarily hold that Miller failed to present
substantial evidence in support of his emotional distress
claim. Accordingly, Defendants were entitled to summary
judgment on that claim.
21
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
22