Filed 9/12/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JOEY MILLER,

Plaintiff and Appellant,

v.

FORTUNE COMMERCIAL

CORPORATON et al.,

Defendants and Respondents.

 B271214

 (Los Angeles County

 Super. Ct. No. LC098458)

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.
2

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.
3

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 ShepherdLabrador 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.”
4

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.
5

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 
6

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 
7

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 
8

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, 
9

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 
10

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.)
11

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 
12

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 “serviceanimals-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.
13

Asked Questions about Service Animals and the ADA,” p. 2, 

at <https://www.ada.gov/regs2010/service_animal_qa.html> 

[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-intraining.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.
14

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 
15

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).)
16

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,”8it 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”].) 
17

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 
18

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 
19

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 
20

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 
21

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 defendantemployees 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.
22

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.