Filed 8/24/18 Waddell v. Walt Disney Parks & Resorts, U.S., Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Theodore R. Howard, Judge. Affirmed.

Law Offices of Michael Geller and Michael S. Geller for Plaintiff and Appellant.

Buchalter, Robert M. Dato, Gary A. Wolensky, Anne Marie Ellis, and Paul A. Alarcon for Defendant and Respondent.

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Defendant Walt Disney Parks and Resorts, U.S., Inc. (Disney), would not allow plaintiff Carole Waddell and her dog Bagel to enter Disneyland because Disney employees concluded Bagel was not a service dog. Plaintiff claims Bagel was a service dog and that Disneyland’s refusal to let her into Disneyland with Bagel constituted disability discrimination under the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.)[1] and the Disabled Persons Act (§ 54 et seq.). The sole issue here is whether plaintiff’s dog was a service dog under these statutes. The court granted summary judgment in favor of Disney. We affirm the judgment. It was undisputed that the dog was not trained as a service dog. Under sections 51 and 54.1, the lack of special training disqualified Bagel as a service dog, and Disney’s refusal to allow Bagel to enter the park did not violate either the Unruh Act or the Disabled Persons Act.

FACTS

Plaintiff purchased Bagel from a pet store in 2006. Bagel had no special training and was intended simply to be a pet.

Beginning in 2007, plaintiff stopped working due to anxiety. She was collecting social security disability benefits because of various mental conditions including depression and chronic anxiety. In 2011, a physician prescribed a service dog to assist her. By this time, she already had Bagel, who had the inherent ability to detect the onset of a traumatic breakdown and warn her in advance of its occurrence so she could change her circumstances and prevent the episode. Bagel had not received any special training for this, but instead did it instinctively. Bagel became licensed in the City of Indio as a service dog for that purpose. The officer granting the license relied on a note from a psychologist, which stated, “[Plaintiff] has a medical condition, and she is helped by having her dog accompany her.”

Plaintiff is an avid fan of Disneyland and had taken Bagel to various Disney properties on 25 to 30 occasions. Bagel did not wear a vest identifying him as a service dog on these occasions; rather, plaintiff carried his registration card and her prescription with her.

In June 2014, a medical record from plaintiff’s primary care doctor stated she was “negative for anxiety, depression, and sleep disturbances.”

The episode at issue occurred in July 2014, by which time Bagel had terminal cancer of the eye. Plaintiff testified that her visit to Disneyland that day was mostly as a send-off to Bagel: “He was not there to serve me at that point. I was just saying goodbye to him, even though he was trying to at the time do his job. [¶] Q. So your purpose for going to Disneyland that day with Bagel was to say goodbye to him or give him the time in the park? [¶] A. Yes. Yes. [¶] Q. He was not there to act as a service animal; is that what you’re saying? [¶] A. Well, he was, but I — I didn’t have — you know, I was concentrating on — on his needs more than him concentrating on my needs.”

After plaintiff got through the turnstile to enter Disneyland, Bagel began howling because he fell to the ground. A park employee approached plaintiff and asked if Bagel was a service dog. She replied yes. He asked what service Bagel performed for her, and she said Bagel helps her with anxiety. The employee concluded the dog was an emotional support dog and could not be brought into the park. Plaintiff asked to speak with a manager, but the manager likewise refused to permit the dog entry. Both employees refused to look at the licensing papers plaintiff offered to show them. Plaintiff testified both employees were acting rude, but neither touched her, raised their voices, or used curse words. Plaintiff then left the park.

Plaintiff filed suit alleging causes of action for violation of the Disabled Persons Act; violation of the Unruh Act; violation of the Bane Act, section 52.1; and intentional infliction of emotional distress (IIED). Disney moved for summary judgment. In opposing the motion, plaintiff abandoned her Bane Act cause of action. The court granted the motion, finding Bagel did not qualify as a service dog because he had not been trained as such, and that, in any event, plaintiff admitted she had not brought Bagel to Disneyland to perform any service for her. Plaintiff timely appealed.

DISCUSSION

On appeal, plaintiff contends there were disputed issues of material fact concerning whether Bagel was a service dog, and whether he was acting as such on the date of the incident. In an appeal from a summary judgment, “we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties.” (Ibid.)

The Disabled Persons Act provides that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to . . . amusement, or resort, and other places to which the general public is invited,” subject to any limitations established by law. (§ 54.1.) Section 54.2, subdivision (a), provides, “Every individual with a disability has the right to be accompanied by a . . . service dog, especially trained for the purpose, in any of the places specified in Section 54.1 . . . .” Section 54.1, subdivision (b)(6)(C)(iii), defines “‘service dog’” as “a dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items.” The remedies against a person who “denies or interferes with admittance to” a public facility include actual damages, a penalty of up to treble damages, and attorney fees. (§ 54.3, subd. (a).)

The Unruh Act similarly prohibits discrimination in public accommodations based on, among other things, disability. (§ 51, subd. (b).) While the Unruh Act has no definition of a service dog, it incorporates the federal Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), which has accompanying regulations that do. (§ 51, subd. (f).) The applicable regulation likewise defines a service animal in terms of training: “Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. . . . . The work or tasks performed by a service animal must be directly related to the individual's disability . . . . 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.)

Under these definitions, Bagel was not a service dog. It is undisputed that Bagel had not received any training as a service dog. In the words of the governing statutes, he was not “especially trained” (§ 54.2, subd. (a)) as a service dog, nor was he “individually trained” (§ 54.1, subd. (b)(6)(C)(iii)) to perform work or tasks for plaintiff.

In Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214 (Miller) the court reached the same conclusion. There, the plaintiff suffered from autism and his dog helped him operate more independently. (Id. at p. 219.) He took his dog into a market, which denied him entry, and he sued, raising the same claims as here. (Ibid.) As here, the plaintiff admitted the dog was not a fully trained service dog, though in that case, unlike here, the plaintiff claimed the dog was in the midst of training. Because the Unruh Act makes no exception for dogs in training, the court affirmed a summary judgment in the defendant’s favor based on a straightforward application of the training requirement. (Id. at pp. 224-225.) The Disabled Persons Act does permit entry to animals in training under certain circumstances, but those circumstances were not met there. (Miller, at pp. 226-227.)

Plaintiff contends that Bagel’s instinctive abilities are a form of training that satisfies the training requirement above. She presented the testimony of an animal training expert, who opined, “The human-dog bond is so strong and unique in the animal world that we don’t understand all the ways dogs learn but they do. They can learn from other dogs, they can learn simply by observing their master. A dog can have a skill to help with a definitive disability without special training. This does not mean the dog is not trained for a disability but simply, that the dog did not require special training for the disability assistance.”

There is a difference between learning and training. Dogs may well teach themselves, or learn behaviors from other dogs, but that is not training. Miller relied on the following dictionary definition of train, which we likewise adopt: “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.’ [Citation.] Consequently, when someone or something has been ‘trained’ — that is, their training has been completed — they are now qualified to act or perform in a certain way.” (Miller, supra, 15 Cal.App.5th at p. 224, fn. 5.) Under this definition, Bagel was not trained as a service dog. Therefore, he was not a service dog under either the Disabled Persons Act or the Unruh Act, and Disneyland did not violate the law in refusing Bagel entry.

For this reason, the “license” Bagel received from the City of Indio does not support plaintiff’s claims. We do not have the actual license in our record, but plaintiff admitted that the license was not based on any review of Bagel’s training, but instead was based simply on a psychologist’s certification that Bagel helped plaintiff with her condition. Plaintiff has not cited any legal authority to suggest the license has any legal effect whatsoever under either the Unruh Act or the Disabled Persons Act.

Our holding likewise disposes of plaintiff’s IIED claim, which she only addressed in a single conclusory paragraph in her opening brief. To establish IIED, plaintiff must furnish evidence that Disney’s conduct was “‘“extreme and outrageous.”’” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) The conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (Ibid.) Here, there was nothing outrageous about Disney asserting its right to prohibit dogs in Disneyland.

DISPOSITION

The judgment is affirmed. Disney shall recover its costs on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.