Miller v. Corporaton

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

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 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 short time that they had her had

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 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 judgment is affirmed. The parties are to bear their own costs on appeal.

We concur:

ROTHSCHILD, P.J.

CHANEY, J.

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

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, 107 Cal.Rptr.2d 841 , 24 P.3d 493 .) 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 issue of material fact, and summary judgment should be granted. (See id . at pp. 856-857, 107 Cal.Rptr.2d 841 , 24 P.3d 493 ; see also Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472 , 483, 50 Cal.Rptr.2d 785 .)

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, 68 Cal.Rptr.2d 571 .) 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, 76 Cal.Rptr.2d 479 , 957 P.2d 1313 .)

"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, 268 Cal.Rptr. 753 , 789 P.2d 934 .) "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, 112 Cal.Rptr.3d 722 , 235 P.3d 42 ( 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, 151 Cal.Rptr.3d 420 ( 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 Collection & Recycling, Inc . (2005) 134 Cal.App.4th 1076 , 1082, 36 Cal.Rptr.3d 650 ( MacIsaac ).)

"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, 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, 151 Cal.Rptr.3d 420 ; see MacIsaac , supra , 134 Cal.App.4th at pp. 1083-1084, 36 Cal.Rptr.3d 650 .)

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, 64 Cal.Rptr.2d 319 .) "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, 36 Cal.Rptr.3d 650 .)

A. THE UNRUH ACT AND SERVICE DOGS

The Unruh Act broadly outlaws arbitrary discrimination in public accommodations and includes disability as one among many

Although the Unruh Act does not expressly address service dogs, the ADA's

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, 94 Cal.Rptr.3d 685 , 208 P.3d 623 .) 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, 94 Cal.Rptr.3d 685 , 208 P.3d 623 ; 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, 94 Cal.Rptr.3d 685 , 208 P.3d 623 .)

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

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

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.