FILED
NOT FOR PUBLICATION APR 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AL DAVIS, No. 12-55361
Plaintiff - Appellant, D.C. No. 5:10-cv-01483-VAP-
DTB
v.
DALE MA; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted April 8, 2014**
Pasadena, California
Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.
Al Davis entered a Burger King restaurant with a 13-week-old puppy and
was denied service under the restaurant’s “no dogs” policy. Alleging that he is
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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disabled and that he was training the puppy to be a service animal, Davis filed a
complaint making claims for disability discrimination under the Americans with
Disabilities Act and the California Unruh Civil Rights Act. The district court
granted summary judgment for the defendants on the ground that Davis had not
raised a genuine issue of material fact about whether the puppy was a service
animal, or whether a service animal could help ameliorate his disability. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Both California and federal law require a showing that an individual’s
disability can be ameliorated by a particular service animal. See 28 C.F.R.
§ 36.104; Cal. Civ. Code § 54.1(b)(6)(C)(iii). In its order granting summary
judgment, the district court found that Davis failed to raise a triable issue of fact
about whether a service dog could ameliorate his disability. On appeal, Davis does
not argue the district erred by finding he failed to raise a genuine issue of fact that
his disability is capable of being ameliorated by a service dog. Davis has thus
waived any objection to this finding, see Indep. Towers of Wash. v. Wash., 350
F.3d 925, 929 (9th Cir. 2003), and he cannot prevail on his disability
discrimination claims.
Davis also argues the district court erred by dismissing his claims for racial
discrimination and intentional infliction of emotional distress. Although Davis
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stated in his claim for intentional infliction of emotional distress that
“[d]iscrimination against disabled minorities . . . is unusually damaging . . . when
the discrimination is against a person of African-American heritage,” the complaint
did not make an independent claim for racial discrimination. Neither did the
district court err by granting summary judgment on Davis’ claim for intentional
infliction of emotional distress. This claim was based on Davis’ underlying claims
of disability discrimination, and he failed to show that the defendants engaged in
“extreme or outrageous conduct” by enforcing its “no dogs” policy. See Hughes v.
Pair, 209 P.3d 963, 976 (Cal. 2009) (laying out elements of claim for intentional
infliction of emotional distress).
AFFIRMED.
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