LOS ANGELES (Legal Newsline) – The Second Appellate District of the California Court of Appeals affirmed a summary judgment on Sept. 12 in favor of the owner of two seafood markets in a lawsuit that alleged it denied service to a handicapped man whose service dog was not fully trained.

In his opinion, Judge Jeffrey Johnson affirmed a summary granted by Los Angeles Superior Court Judge Russell S. Kussman in favor of defendant Fortune Commercial Corp., which owns and operates a chain of Seafood City fish markets.

“The ultimate ruling itself was not such a surprise in view of the evidence, or lack thereof,” attorney Brendan J. Begley of Weintraub Tobin, which represented Fortune Commercial, told Legal Newsline

“There was no evidence that this dog was trained or in training to be a service animal on the day in question. Perhaps the most surprising thing about this determination is that there was no binding California appellate decision addressing the core issue, only some federal decisions that state courts could disregard if they like.”

Joey Miller, who suffers an intellectual deficiency and autism, sued Fortune Commercial Corp. in 2012 and other defendants because they allegedly illegally barred him from entering two different Seafood City markets with his service dog Roxy, a one-year-old female mixed-breed German Shepherd-Labrador Retriever. Miller was 20 at the time, but has a capacity of a nine- to 12-year-old boy, the ruling states.

Miller sued for violation of the Unruh Civil Rights Act, which prohibits discrimination in public with respect to trained service dogs, violation of the Disabled Persons Act (DPA) and emotional distress.

Early in the litigation, Miller had conceded that Roxy “wasn’t fully trained” and still “in the process of being trained,” the ruling states. In June 2015, Fortune Commercial moved for summary judgment arguing that Roxy was not a fully trained service animal at the time of the alleged incidents.

The trial court entered judgment on the motion in January 2016.

On appeal, Miller argued that at the time of the alleged incidents, Roxy had received obedience training and some training as a service animal. In addition, Miller argued that he was permitted by law to take Roxy into the markets for the purpose of training the dog further.

The appellate court held that Fortune Commercial was entitled to judgment. Johnson wrote that "although the Unruh Act does not expressly address service dogs, the ADA’s accompanying regulations do” and that “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.”

Although under the Disabled Persons Act, a service dog may be taken to a place open to the public for the purpose of training, the court held that neither Miller nor his stepfather, who accompanied him at the time of the alleged incidents, “failed to produce substantial evidence that Roxy was taken to the Seafood City markets for the purpose of training.” Further, the court held that neither Miller nor his stepfather had the ability to train a service animal.

Johnson also wrote in his opinion that “there was no evidence that the defendants intended to cause Miller any emotional distress.”

Begley said that the implicit distinction between trained service animals and comfort pets that might be in training may come as a surprise to some people because there was no clear guidance from California courts previously.

“More and more you see people bringing dogs—or sometimes other animals—into restaurants, grocery stores, or other public accommodations,” Begley said. 

“A lot of folks have strong opinions as to whether the emotional support that a pet offers to a person is enough to allow the animal to be in such places. But that is a dispute for our elected representatives to resolve, not the courts. The courts in this case merely applied the laws that Congress and the state legislature had already enacted.”

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