Monday, March 30, 2020

CA Animal Law re Post Seizure Hearings, in 2020

Post seizure hearings under the CA Penal Code are still not without fault. This was seen firsthand in the current federal case in Sacramento Eastern District Federal Court, where Placer County (yet again..) is being sued for errant conduct as to seizure done by the "humane society" there, which has been long known for their tactics.

The lawsuit (last we saw) had at least 70 pages, and they were suing numerous parties, including that Humane Society of the Sierra Foothills (definitely illegal conduct used..) and many other people employed by the county, and others....we already had long ago spoken to the defense attorney that was originally on the case, a criminal law specialist.

Hard to believe, but the attorney that mostly wrote much of the animal CA Penal Code law showed up in Placer County,  and told the Judge there that it's the "legislature's" fault that in post seizure hearings, one does NOT always get a hearing??

Attorney has personal knowledge of what happened in that case, and we also have the transcript of the defense attorney Wagman, admitting that PC 597.1(h) means if there "is" a search warrant, you don't have any legal right to a post seizure hearing, basically???  Anyone who knows criminal law is aware that a post seizure hearing is normally afforded in most cases unless the subject matter is illegal in and of itself (drugs, illegal items like having been stolen,etc.) as example....

This is what the pet owners' criminal law specialist attorney stated: "..Statutes are declared unconstitutional by higher courts frequently..if this statue is interpreted to deny my clients all their due process rights, it will be declared unconstitutional in a further proceeding..."

In fact, the statute as applied (which is a form of construction) in fact, makes the law as worded, illegal as it is applied to the facts of the case--of that, there is no doubt.  That doesn't mean the owners who lost everything necessarily wanted to test the statute [because they didn't in reality]...

However, we are CERTAIN that if it was tested by using this case, the statute as applied, was illegal.

We know this is true because after this case, we were involved in the case where allegedly many malamutes were seized (again, the seizure was a set up using rescues that were part of the shenanigans state wide) --- and after having spoken to the owner, we realized what had occurred. Basically, the owner was bamboozled into thinking that the "rescues" were trying to help her but in reality, the rescues just wanted all of her stock dogs. The dog owner herself, was NOT a rescue but rescues were constantly trying to obtain her dogs. The dogs were specifically bred for certain criteria, and were NOT rescue dogs.

In the end, if anyone does test the illegality of the statute as outlined, we would be happy to be involved. The author of much of this code knows it is not legal, because he even admitted that--by having   instructed attendees at his yearly seminar with SHAC, to give all of such owners involving that specific code, a HEARING. 

And how we know that, is because  animal control officers  that attended that seminar done by this same attorney, was  TOLD  to offer the hearing to the involved parties, even if the code doesn't say they GET a hearing????

**Note: to be honest, we realize that just having the hearing will not make anyone necessarily innocent, or able to get their animals back, because the impound costs are highly expensive and most owners cannot afford those costs. We are aware of at least 3 cases though, where the owners were able to get some of their animals back.

Monday, December 30, 2019

Attorney Won Post Seizure Hearing in Hollywood, California!

It's true, attorney did win a post seizure hearing in Hollywood, CA when the seizure was done improperly.

Very few attorneys have ever accomplished this.  The Seizure Code for animals in California, is so poorly written, poorly updated, and convoluted, that even a seasoned Criminal law Specialist in Roseville had to ask attorney herein for help on the law in a different seizure case...

  The law under the CA Penal Code has been severely cobbled together and changed, year after year after year, and when reading this terribly written code, to be quite frank, it is actually not legal in more than one way. As in "as applied."  The reason for this is due to the statute which calls for a taking by the government, without a hearing.  In other words, it amounts to a forfeiture, like when a person is in possession of illegal contraband/or drugs--everything is forfeited. One cannot have a hearing on items that are actually illegal in the first place to own basically.

We have inside information that the people responsible for the law (an attorney in the Bay Area) had already told animal control that even though the law does not afford a "hearing", he recommended at his seminar on the subject, to give the accused a hearing anyway.  Obviously this means, this attorney knows his law is completely flawed, yet he has done nothing to change that law. That same attorney also appeared in Roseville and told Judge that it was the "Legislature's fault" because they passed the law. We call that-- nothing less than being an outright SCHMUCK. Wait until the law is actually challenged in Federal Court. It will have to be changed because it is obviously illegal.

We don't say that because we think we know everything, but because the law as written is simply illegal, we need a case usually, in order to have standing in Federal Court, to challenge it. There actually is such a case in Sacramento Eastern District on this issue, BUT the case is not premised on challenging the law itself, it is instead focused on other factors that happened in the case, and the moving party does not want to challenge the law for other reasons.

We can give out information on that case if you are interested, just call and ask 530 359 8810 and leave us a message. Very few attorneys are even aware of this case. We may write more about it later in 2020.

Tuesday, April 30, 2019

Oregon Defeats Law Prohibiting Sales of Purposely Bred Pups

We needn't rehash this yet again BUT---- puppies are born to be sold so people can own them.

 Most rescued animals do not have owners and thus rehoming them is what is done to get them homes. Calling the sale of an animal that is rehomed is in fact, a sale; if the selling entity is a non profit, the sold animal can be said to be rehomed and the expense of buying the animal could be considered a donation to the non profit.

 But because the word "sale" to activists means "buy"--and the word "rehomed" to activists means "not buying"--this is incorrect. Whether you pay cash or use a credit card, you are exchanging your money for the animal, period. Whether that animal is $5.00 or $5,000, and whether you are paying for the time or expense or rehab of said animal, you are still buying it; even the pound charges you to buy the animal, and it is not tax deductible in most cases because the county or city is not a tax exempt not for profit entity.

Even if a 501(c)(3) sells an animal and calls it an adoption fee, you are still exchanging money for property. The fact that the non profit says you can exempt the tax does not mean the animal was free, and the money you paid is added to the non profit's income which is generally not taxable.

  Non profits can in fact, and do, make A LOT OF PROFIT. That fact is highly misunderstood. A profit in a non profit entity is allowed 100%. It is the purpose of the entity that makes the entity tax exempt. Most hospitals are non profit entities and they are not broke; the HSUS is not broke; the ASPCA is not broke; the largest non profits in the world are usually flush.

Thursday, January 11, 2018

Sad Fact re Buying Pets in CA Pet Stores

CA government decided to pass the law that no cats, dogs, rabbits and maybe more
can be sold in a pet store (retail) unless it came/comes from a shelter, or non profit group
such as a rescue. That's just the simplified version. and it supposedly won't actually be
active until Jan 2019? So that gives CA pet stores [that want to sell kittens/or puppies,etc]
 time to get out of business or get out
 of California?

 For example, the pet store franchise Petland, well known for being chased
down by every AR zealot in the country, would basically lose all their stores in CA, if
there are any left?  and the private run pet stores selling kittens, puppies, etc would have the
same problem, UNLESS they can prove they are selling non profit animals? Most likely the
sellers must be non profits unless the law allows sales of non profit animals by a group which
is NOT a nonprofit?

Seriously, and what does this cause? Basically it will mean more USDA licensing if pets are
going to be sold, which are sold without being seen? The APHIS rules are many, and we are
not about to list them all here, but knowing they have been out there for years now, anyone
not in compliance that gets caught will have some kind of problem for sure, we can thank
rogue seizure groups for that, AR crazy people, and the people who get caught selling
animals who may have done nothing wrong?  Pretty much, sales of animals can still be done
if it's a small scale and you don't ship the animals. If you think you are going to sell animals
regulated by the new law in the future, you should get legal help first, NOT after you have
already been doing it without knowing the rules. You could be in violation without even
knowing it.

As for rescues in California, there really are very few regulations aimed at non profit groups which
take in animals. Seriously. And when they take the animals from shelters, they are supposed to be able to know how to fix behavioral issues that present as problems--which is why maybe 50% of shelter animals end up returned to shelters?  The Hayden Law doesn't cover much. CA pet store laws are quire stringent.
BUT since animal activists don't want people to buy what they want, they want owners
to "adopt" anything and buy nothing.
Let's face it, adopting is BUYING, it's not free.
Any rescue can tell you that rescuing isn't profitable, but just look at ASPCA and many rescue
groups out there.
Are they all so rich that they can lose money every year??
 Who knows if the IRS 990s are even true? Who knows the REAL history of what animal
you are buying from them? No one does.
No one would ever know.
Trust us, you won't be finding any good sourced puppies at a store, since
non profits will not be allowed to get them from any breeders. That means they either
had to raise them themselves, take them from someone, or steal them possibly, or buy
them from non breeders. or get them for free. Good luck. best to just buy one from an
actual breeder that is in compliance with the rules, or just drive or fly out of state and
buy one. California animal laws suck big time and can only get worse. Look at who's
running the laws. Animal activists.

Saturday, September 16, 2017

Judge Rules Can't Sue Police, Dog wasn't Licensed

Drumroll...........................and now we have just about seen it all........................

....U.S. District Judge George Caram Steeh of Detroit dismissed the suit filed by Kevin Thomas and Nikita Smith against Detroit police officers, saying they couldn’t recover because their dogs did not have a city license, Reason reports. The Aug. 2 opinion is here.

Steeh reasoned that, because the dogs were unlicensed, Thomas and Smith had no legitimate possessory interest in the dogs, and there could be no violation of the Fourth Amendment.
“When a person owns a dog that is unlicensed, in the eyes of the law it is no different than owning any other type of illegal property or contraband,” Steeh wrote.
As precedent, Steeh cited a decision by the Chicago-based 7th U.S. Circuit Court of Appeals that held a plaintiff didn’t have a legitimate possessory interest in an unregistered submachine gun seized by police without a warrant.
Steeh acknowledged that “this conclusion may not sit well with dog owners and animal lovers” who consider their pets to be family members rather than property.
Thomas and Smith were squatters in the residence raided by police officers in January 2016. Their dogs were Debo, a 9-year-old pit bull; Smoke, a 7-year-old Rottweiler; and Mama, a 17-month-old pregnant pit bull. Debo and Mama were shot after charging at officers, while Smoke was shot in the bathroom.

Friday, September 15, 2017


---->> the law on service dogs as it applies when one tries to sue and doesn't know what they are doing?

Even worse, it appears the same law firm (Murphy) handled a prior case and also lost on that:


Case No. EDCV 10-01483 VAP (DTBx).

848 F.Supp.2d 1105 (2012)
Al DAVIS, Plaintiff, v. Dale MA; Roscoe BK Restaurant, Inc.; Gloria Garduno; and Guadalupe Rojas, Defendants.
United States District Court, C.D. California.

Attorney(s) appearing for the Case

Glenn A. Murphy, Litigation & Advocacy Group, Moorpark, CA, for Plaintiff.
Courtney M. Coates, Courtney M. Coates Law Offices, Temecula, CA, for Defendants.


Before the Court is a Motion for Summary Judgment ("Motion") filed by Defendants Roscoe BK Restaurant, Inc., Dale Ma, Guadalupe Rojas, and Gloria Garduno (collectively "Defendants"). After considering the papers and arguments in support of, and in opposition to, the Motion, the Court GRANTS Defendants' Motion.


On October 4, 2010, Plaintiff Al Davis ("Plaintiff") filed a complaint ("Complaint") alleging claims for: 1) violations of the Americans with Disabilities Act ("ADA"); 2) violations of the Unruh Civil Rights Act, Cal. Civ. Code § 51; and 3) intentional infliction of emotional distress. (Doc. No. 3.)
On December 16, 2010, Defendants filed a Motion to Strike Plaintiff's "SLAPP" claims, arguing Plaintiff's state law claims should be stricken because Plaintiff could not demonstrate a reasonable probability of success on the merits. (Doc. No. 9.) The Court denied the motion on January 31, 2011, finding Plaintiff's claims were not "`cause[s] of action against [Defendants'] arising from any act of [Defendants] in furtherance of [Defendants'] right of petition or free speech under the United States or California Constitution.'" (Jan. 31 Order (Doc. No. 17) (quoting Cal. Civ. Proc. Code § 425.16).)
Defendants then filed a Motion to Strike Portions of the Complaint on March 1, 2011, moving to strike Paragraph 21 under Federal Rule of Civil Procedure 12(f). (Doc. No. 18.) Defendants argued Plaintiff's allegations of perjury, concealment, and collusion to obstruct justice were "scandalous," "impertinent," and "irrelevant matters," and requested the Court strike Paragraph 21 because it alleged privileged conduct under California Civil Code Section 47. (Id. at 6.) The Court agreed that Paragraph 21 involved privileged communications under California Civil Code Section 47(b) and granted Defendants' motion. (Apr. 8 Order (Doc. No. 21) at 6 (citing Kimes v. Stone, 84 F.3d 1121, 1126-27 (9th Cir.1996)) (noting that "[f]or well over a century, communications with `some relation' to judicial proceedings have been absolutely immune from tort liability by the privilege codified as section 47(b) ... [T]he privilege is now held applicable to any communication ... and all torts except malicious prosecution" (citation omitted)).)
On November 28, 2011, Defendants filed this Motion. (Doc. No. 39.) In support of their Motion, Defendants attached the following documents:
1) Declaration of Dale Ma (Ma Declaration) (Doc. No. 40);2) Declaration of Laura Hintz (Hintz Declaration) (Doc. No. 41);3) Declaration of Courtney M. Coates (Coates Declaration) (Doc. No. 42);4) Request for Judicial Notice (Doc. No. 43);5) Declaration of Dr. Charanpreet Boparai (Boparai Declaration) (Doc. No. 44);6) Declaration of Peter Cossar (Cossar Declaration) (Doc. No. 45);7) Declaration of Sally Montrucchio (Montrucchio Declaration) (Doc. No. 46); and8) Statement of Uncontroverted Facts (SUF) (Doc. No. 47).
On December 12, 2011, Plaintiff filed an ex parte application to reopen discovery
[848 F.Supp.2d 1108]
and continue Defendants' Motion for 90 days. (Doc. No. 50.) Defendants filed their opposition on December 13, 2011. (Doc. No. 51.) The Court denied Plaintiff's application on December 16, 2011, and rescheduled the hearing on this Motion from January 9, 2012, to January 23, 2012. (Doc. No. 52.)
Plaintiff filed his Opposition to the Motion on January 3, 2012, and attached the following documents:
1) Declaration of Al Davis (Davis Declaration);2) Declaration of Herman Clavon (Clavon Declaration); and3) Statement of Genuine Issues (SGI). (Doc. No. 53).
Defendants filed their Reply on January 9, 2012, (Doc. No. 58), along with their evidentiary objections (Doc. No. 59).


A court shall grant a motion for summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998) (citing Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id.; Horphag Research Ltd. v. Garcia, 475 F.3d 1029 (9th Cir.2007),
The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed.R.Civ.P. 56(c); Celotex,477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144. A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir.1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.1987).


A. Preliminary Evidentiary Issues

Plaintiff filed an Objection to Defendants' Evidence, challenging specific statements
[848 F.Supp.2d 1109]
in the declarations of Dale Ma, Laura Hintz, and Sally Montruccio. (Doc. No. 56.) As the Court does not rely on the statements in Mr. Ma's declaration to which Plaintiff objects, the Court only addresses Plaintiff's objections to Ms. Hintz's and Ms. Montruccio's declarations.
Plaintiff argues that both Ms. Montruccio and Ms. Hintz are lay witnesses with no legal training, who therefore cannot give their opinions on what constitutes a service animal under California or federal law. (Id. at 4-6.) The Court overrules Plaintiff's objections to the declarations of Ms. Hintz and Ms. Montruccio. Ms. Hintz provides a thorough description of her job as the Field Services Representative of the Department of Animal Care and Services for the City of Rancho Cucamonga, and the Court finds her qualified to describe the Department's procedures for licensing dogs. (See Hintz Decl. ¶¶ 1-2.) To the extent Plaintiff intended his objection as one for lack of foundation, the objection lacks merit.
Ms. Montruccio also details her expertise in training service dogs, and provides a thorough explanation for her conclusion that the puppy was not a trained service animal. There is sufficient foundation for her opinion. (See Montruccio Decl. ¶¶ 4-24.)

B. Uncontroverted Facts

In his SGI, Plaintiff attempts to dispute 34 of Defendants' 35 alleged uncontroverted facts.1 To the extent those facts are not mentioned, the Court has not relied on them in reaching its decision.2
The following material facts are supported adequately by admissible evidence and are uncontroverted. They are "admitted to exist without controversy" for the purposes of Defendants' Motion. See L.R. 56-3 (facts not "controverted by declaration or other written evidence" are assumed to exist without controversy); Fed. R.Civ.P. 56(e)(2) (where a party fails to address another party's assertion of fact properly, the court may "consider the fact undisputed for purposes of the motion").
On December 28, 2008, Plaintiff entered Defendants' Burger King restaurant on Roscoe Boulevard, Van Nuys, California ("restaurant") with a 13 week old puppy Plaintiff was training to be a service dog ("the puppy"). (Compl. ¶ 12; Davis Decl. ¶ 4.) 

On the entrance to the restaurant were posted two signs stating: "No animals except for service animals"; and "No animals except as allowed by state law." (Ma Decl. ¶ 5, Ex. 3; Davis Decl. ¶ 5.)
When Plaintiff attempted to order food, a restaurant staff member asked Plaintiff to leave because of the restaurant's "no dogs" policy. (Davis Decl. ¶ 5.) Plaintiff asked to speak with the manager and explained to the staff member that the puppy was a service dog in training. (Davis Dep. 17:5-8, 18:10-15.)
The manager, Defendant Gloria Garduno, repeated that dogs were not allowed and pointed to the sign on the outside of the restaurant. (Davis Dep. 17:17-19.) She also asked to see the puppy's "ID." (Garduno Dep. 40:9-10.) When Plaintiff said he did not have one, she told him he could not stay in the restaurant, but could
[848 F.Supp.2d 1110]
either take his order "to-go," or could leave the puppy outside.3 (Garduno Dep. 17:10-17.)
After leaving the restaurant, Plaintiff retrieved a camera from his car and took pictures of the sign. (Davis Dep. 17: 21-22.)

1. Plaintiff's Disability

Plaintiff has a degenerative back disability, which limits his ability to walk and sleep. (Davis Decl. ¶ 2.) Plaintiff's back problems date from 1988 when he suffered a herniated disc and underwent surgery. (Id.) In 2004, he dislocated the "T-10 through S-1 vertebrae disks [sic]" in his back while working as a physician's assistant. (Id.) His doctors recommended he undergo another back surgery, but Plaintiff worried surgery would not ameliorate his pain. (Id.) Since then, Plaintiff's back pain has persisted, though the pain variessome days he is relatively pain free, while other days he cannot get out of bed. (Id.)

2. Plaintiff's Puppy

Plaintiff's puppy is a Great Dane that was approximately 13 weeks old at the time of the alleged denial of accommodation. (Coates Decl. ¶ 3, Ex. 6; Hintz Decl. ¶ 4.) Plaintiff acquired the puppy in November 2008. (Montrucchio Decl. ¶ 10.) The puppy received a service dog tag from the City of Rancho Cucamonga, California on December 2, 2008, and a general dog license on February 29, 2009. (Hintz Decl. ¶ 7.)

3. Puppy's Training

When Plaintiff entered the Burger King restaurant on December 28, 2008, the puppy was not fully trained as a service animal, but had some "basic obedience" training.4 (Montrucchio Decl. ¶¶ 10, 23.) When Defendants allegedly denied him accommodation, Plaintiff was attempting to train the puppy to assist him with walking and balancing inside restaurants. (Montrucchio Decl. ¶ 10; Davis Decl. ¶ 4.)
As a young dog, the puppy still had a "playful" streak.5 (Montrucchio Decl. ¶ 10.) Additionally, the puppy was too young to have complete control over its bladder and bowels for extended training periods. (Montrucchio Decl. ¶ 22.) Thus, there was a risk that as a young dog that was not fully trained, the puppy could defecate or urinate in public places while being trained. (Id.)
The puppy was not a trained service dog in December 2008, "under any circumstances, according to minimal industry standards and practices."6(Montrucchio
[848 F.Supp.2d 1111]
Decl. ¶ 9; Davis Decl. ¶ 4; Davis Dep. 13:15-22.)
Plaintiff is not a certified service dog trainer based on industry standards.7(Montrucchio Decl. ¶¶ 10, 23-24.) Defendants' service dog expert stated that, based on her assessment, Plaintiff was not competent to train the puppy as a balance service dog. (Id.) Plaintiff also admitted during his deposition that he could not recall when he read books to learn about training service dogs, nor the names of the books he read.8 (Davis Dep. 16:11-19.)

4. Puppy's Vaccinations

Plaintiff's puppy was vaccinated for rabies on December 31, 2008, three days after the alleged denial of accommodation by Defendants' restaurant, at the Banfield Pet Hospital in Rancho Cucamonga, California.9 (See Boparai Decl. ¶ 3; Cossar Decl. ¶ 2.)
Although the puppy was issued a service dog tag on December 2, 2008, the puppy did not obtain a dog license until February 29, 2009, after being vaccinated for rabies. (Hintz Decl. ¶ 7.)

C. Disputed Facts

The parties dispute whether the puppy was able to ameliorate Plaintiff's disability, and specifically, whether the puppy could assist Plaintiff with balance and mobility.10 (See Davis Decl. ¶ 4; Mot. at 13.) According to Defendants' service dog expert, the young puppy was not large enough to assist Plaintiff with walking or balancing. (Montrucchio Decl. ¶ 23.) In fact, Ms. Montrucchio testified that Plaintiff could have injured himself and the puppy if he had leaned on the puppy for balance when the puppy was just 13 weeks old. (Id.)
Defendants also submit Plaintiff's deposition testimony, in which Plaintiff states the puppy served as "a reminder" not to put his complete body weight on his left side. (Davis Dep. 15:10-12.) When Defendants' counsel asked if the puppy could physically assist Plaintiff in walking, Plaintiff replied "no." (Davis Dep. 15:17-20.) Plaintiff also replied "no," when Defendants' counsel asked whether the puppy could physically assist him in balancing. (Davis Dep. 15:21-24.)
Plaintiff, however, submits a letter and two prescription notes written by Dr. Harding G. Young, which state that Plaintiff uses a service animal due to his "severe back pain/disc degeneration." (Davis Decl. Ex. 1.) Plaintiff also claims in his declaration that he obtained the puppy "to personally
[848 F.Supp.2d 1112]
train [the puppy] to assist [Plaintiff] with [his] degenerative spine-walking disability." (Id. ¶ 8.)
Defendants note in their Reply, however, that Plaintiff's doctor has not submitted a sworn declaration identifying Plaintiff's disability and describing how a service animal could ameliorate the condition. (Reply at 10.)
Defendants also argue that Plaintiff's declaration describing how the dog assisted him is "uncorroborated and self-serving" testimony and therefore does not raise a genuine issue of fact. (Reply at 10 (citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996); Johnson v. Washington Metro. Transit Auth., 883 F.2d 125, 128 (D.C.Cir.1989)).)


A. ADA and Unruh Civil Rights Act Claims

Title III of the ADA establishes that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation...." 42 U.S.C. § 12182(a).11
To prevail on a Title III discrimination claim, the plaintiff must show that:
(1) She is disabled within the meaning of the ADA;(2) The defendant is a private entity that owns, leases, or operates a place of public accommodation; and(3) The plaintiff was denied public accommodations by the defendant because of her disability.
42 U.S.C. § 12182(a)-(b); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007); see also Org. for Advancement of Minorities with Disabilities v. Brick Oven Rest., 406 F.Supp.2d 1120, 1128 (S.D.Cal. 2005).
Here, Plaintiff claims he has a disability within the meaning of the ADA, and that Defendants failed to accommodate Plaintiff when they refused to allow him to remain in the restaurant with his puppy. (Compl. ¶ 12; Davis Decl. ¶¶ 2-5.)
The parties do not dispute that Defendants are private entities that own and operate a place of public accommodation. (Compl. ¶ 7; Answer (Doc. No. 22) ¶ 7); see also 28 C.F.R. § 36.104 (restaurant or other establishment serving food or drink constitutes place of public accommodation). Nor do the parties dispute that Defendants' manager, Ms. Garduno, asked Plaintiff to leave the restaurant on December 28, 2008, because he was accompanied by the puppy. (Davis Decl. ¶ 5; Garduno Dep. 5-12.)
Thus, the only elements of Plaintiff's ADA claim at issue here are whether Plaintiff had a qualifying disability, whether the puppy was a "service animal" within the meaning of the ADA, and whether any defenses apply. The Court addresses each in turn.
[848 F.Supp.2d 1113]

1. Qualifying Disability

To sustain a claim under the ADA Plaintiff must first demonstrate a qualifying disability. 42 U.S.C. § 12182(a). The ADA defines disability as:
(1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;(2) a record of such impairment; or(3) being regarded as having such impairment.
42 U.S.C. § 12102(2)(A)-(C).
The corresponding regulations specify further that a "physical or mental impairment" includes "any physiological disorder or condition." 29 C.F.R. § 1630.2(h)(1). Thus, the ADA protects a broad array of physical and mental impairments, including back disabilities. Rood v. Umatilla Cnty., 526 F.Supp.2d. 1164, 1175 (D.Or. 2007) (back problems such as lumbosacral sacroiliac spondylosis, herniated disc, and degenerative disc disease could qualify as disability under ADA).
The federal regulations define "major life activity" to include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and the operation of a major bodily function." 29 C.F.R. § 1630.2(i)(1).
The federal regulations state that the terms "major" and "substantially limits" should not be interpreted strictly. 29 C.F.R. § 1630.2(i)(2), (j)(1). The primary focus of the ADA should not be whether an individual's disability substantially limits a major life activity, but rather, whether discrimination has occurred. 29 C.F.R. § 1630.2(j)(1)(iii).
Defendants argue that Plaintiff's injury does not substantially limit him. To support this, Defendants cite to the regulations' appendix, which states that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." (Mot. at 20 (citing 29 C.F.R. Part 1630 App., § 1630.2(j)).) Defendants do not, however, submit any facts demonstrating that Plaintiff's disability was temporary.12 Defendants instead seem to argue that because Plaintiff stopped attending physical therapy and has admitted to taking walks, his physical condition fails to meet the ADA definition for a qualifying disability.13
Whether a person has a qualifying disability, however, does not depend on whether she attends physical therapy, nor must a plaintiff be completely unable to walk to demonstrate a qualifying ambulatory disability or back disability. See29 C.F.R. § 1630.2.
To survive a summary judgment motion in an ADA case, "a plaintiff's testimony may suffice to establish a genuine
[848 F.Supp.2d 1114]
issue of material fact" regarding the impairment of a major life activity. Head v. Glacier Nw., Inc., 413 F.3d 1053, 1059 (9th Cir.2005). At the same time, however, "conclusory declarations are insufficient to raise a question of material fact." Id.
Here, Plaintiff explains the history of his back condition, describes the pain he experiences as a result of the condition, and states in his declaration: "Due to my degenerative back problems I have difficult[y] walking and sleeping." (Davis Decl. ¶ 2.) Plaintiff also provides a letter from his doctor, which states that Plaintiff "suffers from [a] severe back disability," and a prescription note stating Plaintiff has "severe back pain/disc degeneration." (Davis Decl. Ex. 1.) While Plaintiff's declaration borders on conclusory, the doctor's note tilts the balance in favor of finding a triable issue of fact exists here regarding Plaintiff's disability.
Thus, viewing the facts in a light most favorable to Plaintiff, a reasonable jury may conclude from this evidence that Plaintiff's symptoms significantly restricted him from at least one major life activity such as sleeping or walking.14

2. Service Animal

Defendants argue that Plaintiff's dog did not qualify as a "service animal" under the ADA because the dog was not trained to work for Plaintiff to help ameliorate his ADA disability. (Mot. at 11.) Defendants also maintain that the ADA only covers licensed service animals, which excludes an "untrained puppy" with no skills to "differentiate him from an ordinary, well-mannered pet." ( 13.)
Plaintiff argues federal law does not specify what kind of training a dog must complete in order to qualify as a service dog. (Opp'n at 6.) In the absence of federal guidance, Plaintiff contends, California law applies. (Opp'n at 5 (citing Cal. Civ. Code § 54.2).)
Though the federal regulations do not create a federal certification process, the ADA's corresponding regulations specify that a 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." 28 C.F.R. § 36.104; see also 42 U.S.C. § 12101 et seq.; Miller v. Ladd, No. CV 08-05595 NJV, 2010 WL 2867808, at *4 (N.D.Cal. July 20, 2010) (citing Vaughn v. Rent-A-Center, Inc., No. 2:06-cv-1027, 2009 WL 723166 at *10 (S.D.Ohio Mar. 16, 2009) (citing Access Now, Inc. v. Town of Jasper, Tenn., 268 F.Supp.2d 973, 980 (E.D.Tenn.2003); Bronk v. Ineichen, 54 F.3d 425, 431 (7th Cir.1995))). Additionally, "the work or tasks performed by a service animal must be directly related to the individual's disability." 28 C.F.R. § 36.104; see also Bronk, 54 F.3d at 429.
To survive a motion for summary judgment, therefore, Plaintiff must show there is a triable issue of fact as to whether Plaintiff's puppy was "trained to work ... so as to help ameliorate" Plaintiff's back disability.15 See Davis v. Patel,No. CV
[848 F.Supp.2d 1115]
10-6239 PSG, 2011 WL 1155553, at *4 (C.D.Cal. Mar. 28, 2011) (citing Miller, 2010 WL 2867808, at *4).
In Davis v. Patel, the court found a declaration averring that Plaintiff was "turned away `supposedly because she had a licensed service dog with her'" did not create a triable issue of fact sufficient to survive Defendants' motion for summary judgment. The court reasoned that the affiant was not "qualified to expertly opine on ... whether [Plaintiff's] disability required a service dog." *5.
Here, drawing all justifiable inferences in Plaintiff's favor, the Court finds the record does not contain admissible evidence demonstrating that Plaintiff's puppy was a trained service animal able to ameliorate Plaintiff's disability.
First, Plaintiff fails to present evidence creating a triable issue of fact as to whether the puppy was a trained service animal. Rather, the uncontroverted facts show the 13 week old puppy was not fully trained as a service animal, and only had some "basic obedience" training. (Montrucchio Decl. ¶¶ 10, 23; Davis Decl. ¶ 4.) At the time of the incident, Plaintiff was still attempting to train the puppy to assist him with walking and balancing inside restaurants. (Montrucchio Decl. ¶ 10; Davis Decl. ¶¶ 4-5.)
The only evidence Plaintiff submits showing the puppy was a licensed service dog is a picture of the puppy's service dog tags. (Davis Decl. Ex. 2.) This does not establish, however, that the puppy was a properly trained service animal within the meaning of the ADA. Defendants' service dog expert testified that Rancho Cucamonga's service dog tags are given out based on an "honor system." (Hintz Decl. ¶ 9.) If a person fills out an affidavit stating the dog is a "canine licensed as, to be qualified as, or identified as, a guide dog, signal dog, or service dog," then the city issues a service dog tag. (Id.) Though the City gave Plaintiff such a tag on December 2, 2008, the City did not ascertain whether the puppy was trained, nor whether Plaintiff was a qualified service dog trainer. (Id.¶¶ 7-10.) In fact, the City rarely issues a service dog tag to a puppy less than four months old that has not received a rabies vaccination. (Id. ¶ 11.)
Defendants' expert also testified that working service dogs are required to be fully vaccinated. (Montrucchio Decl. ¶ 21.) As Plaintiff submits no expert testimony disputing this requirement, Plaintiff fails to create a triable issue of fact regarding the vaccination requirements for service dogs. Plaintiff also admits the puppy was not vaccinated for rabies at the time of the incident. (SeeDavis Decl. ¶ 9.)
Thus, the puppy's dog tag alone does not create a triable issue of fact as to whether the puppy was a trained service animal within the meaning of the ADA.
Second, Plaintiff does not present evidence raising a triable issue of fact with respect to the physical assistance the puppy provided Plaintiff. In fact, Plaintiff admitted in his deposition that the puppy did not assist him in walking or balancing. (Davis Dep. 15:17-24.) Although Plaintiff provided a note from his doctor, this note does not describe how a Great Dane service dog would ameliorate Plaintiff's back disability. (Davis Decl. Ex. 1.) The doctor's note also does not specify whether Plaintiff's disability requires the assistance of a service dog, but merely states Plaintiff "uses a service animal due to severe back pain/disc degeneration." (Id.) Plaintiff does not provide a declaration from his
[848 F.Supp.2d 1116]
doctor attesting to Plaintiff's physical reliance on the puppy. Indeed, Plaintiff does not submit any expert evidence showing his disability requires a service dog.
Plaintiff's declaration on its own does not suffice to create a triable issue of fact, especially where his previous deposition testimony contradicts his assertion in the declaration that the puppy ameliorates his disability. See Kennedy, 90 F.3d at 1481.
The ADA does not create unlimited license for disabled customers to enter facilities of public accommodation with their pets. The federal regulations limit protected entry to trained service animals that help ameliorate their owner's qualifying disability. 28 C.F.R. § 36.104. As Plaintiff fails to present any evidence creating a triable issue of fact as to whether Plaintiff's puppy was a trained service dog, the Court finds Plaintiff cannot — as a matter of law — prove the elements of his ADA claim.

3. Public Health and Safety Defenses

Defendants argue that under the ADA a public accommodation is not required to permit access to a service animal when that animal poses a "direct threat" that jeopardizes public health or safety. (Mot. at 14.) Defendants contend that, because Plaintiff's puppy was neither vaccinated nor trained, and Defendants' public accommodation was located in an officially declared "rabies area," the law did not require Defendants to permit entrance to Plaintiff and his puppy. (Id. at 14-15.) Alternatively, Defendants assert several affirmative defenses under the ADA. (Id. at 15.)
As Plaintiff fails to submit admissible evidence creating a triable issue of fact with respect to the ADA claim, however, the Court need not consider Defendants' defenses, and instead, finds Plaintiff's ADA claim fails as a matter of law.

B. Intentional Infliction of Emotional Distress

To sustain an IIED claim under California law, a plaintiff must prove the following elements:
(1) extreme and outrageous conduct by the defendant with the intent 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 outrageous conduct.
Christensen v. Sup.Ct., 54 Cal.3d 868, 903, 2 Cal.Rptr.2d 79820 P.2d 181 (1991); Hughes v. Pair, 46 Cal.4th 1035, 1050, 95 Cal.Rptr.3d 636209 P.3d 963 (2009).
Here, Defendants were not required to admit Plaintiff's untrained puppy, and therefore, denial of entry does not constitute extreme or outrageous conduct. Nor is there any evidence suggesting Defendants excluded Plaintiff with the intent to cause emotional distress.16 As there is no evidence raising a triable issue of fact, the Court finds Plaintiff's IIED claim fails as a matter of law.
[848 F.Supp.2d 1117]


For the foregoing reasons, the Court GRANTS Defendants' Motion, DISMISSES Plaintiff's Complaint against Defendants WITH PREJUDICE, and DENIES as moot Plaintiff's Ex Parte Application to Amend the Scheduling Order.


1. The majority of Plaintiff's purported disputes do not address the facts or sources of evidence Defendants present, but instead, propound legal arguments as to the merits of the case. (See generally SGI.) As these arguments do not address whether the proffered facts are disputed, the Court accords them no significance.
2. As the Court does not rely on any of the exhibits attached to Defendants' Request for Judicial Notice, the Court does not address the evidentiary issues raised concerning the exhibits' admissibility.
3. Plaintiff claimed during his deposition that, after retrieving a camera from his car, he returned to the restaurant and asked to speak to the manager again. (Davis Dep. 17:22-23.) Plaintiff did not recall the entire conversation he had with the manager, but remembered the manager would not allow him to stay in the restaurant with the puppy. (Davis Dep. 18:4-6.) Ms. Garduno, however, testified in her deposition that Plaintiff never returned to the restaurant. (Garduno Dep. 49:25.) This dispute is irrelevant to the Court's decision and therefore the Court need not resolve it.
4. The parties do not dispute that the puppy received a service dog tag prior to the alleged denial of accommodation. Plaintiff submits as an exhibit a picture of a dog tag with the words "Rancho Cucamonga Service Dog 009," and asserts this is a "close up of just Barack's service dog tag." (Davis Decl. ¶ 7, Ex. 2.) Defendants also present testimony that the Department of Animal Care and Services for the City of Rancho Cucamonga issued a service dog tag to the puppy prior to the alleged denial of accommodation. (Hintz Decl. ¶ 7.)
5. Defendants' service dog expert, Ms. Montrucchio, also testified that the puppy would have been a "safety risk" at 13 weeks. (Montrucchio Decl. ¶ 18.) Ms. Montrucchio is a Field Service Representative of the Department of Animal Care and Services for the City of Rancho Cucamonga. (Id. ¶ 2.)
6. Defendants claim Plaintiff has refused to allow Defendants' expert, Ms. Montrucchio, to examine the puppy, in violation of Rule 26, and include as an exhibit a letter from Plaintiff's counsel arguing an expert examination of the puppy would not be admissible evidence. (Coates Decl. ¶ 10, Ex. 12.) Nevertheless, Ms. Montrucchio provides her expert assessment — based on the facts available — that the puppy is not a trained service animal. (Montrucchio Decl. ¶ 9.) As Plaintiff does not claim the puppy is a trained service animal, but admits the puppy was still "in training," the Court does not find this fact to be in dispute. (Davis Dep. 5:11-12.)
7. Plaintiff claims there are no federal or state certification requirements for trainers of service dogs. (Davis Decl. ¶ 8 (citing Green v. Housing Auth., 994 F.Supp. 1253, 1256 (D.Or. 1998)).) Even if correct, Plaintiff does not provide any expert testimony or declarations to support his claim that he was qualified under industry standards to train the puppy to be a service dog.
8. After much questioning, Plaintiff did claim to have read the book "Service Dog Training," though he could not recall the page length of the book. (Davis Dep. 16:22-25.)
9. Plaintiff claims to dispute this fact, but does not provide any conflicting evidence. (See SIG ¶ 14.) Rather, Plaintiff claims this fact is "irrelevant" and that he was "in total compliance with the law." Id.
10. As service dogs, Great Danes primarily serve the function of assisting a disabled person in balancing. (Montrucchio Decl. ¶ 24.)
11. The Unruh Civil Rights Act provides:All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
Cal. Civ.Code § 51(b); Goldman v. Standard Ins. Co., 341 F.3d 1023, 1026-27 (9th Cir. 2003).
As the Unruh Act has adopted the full expanse of the ADA's public accommodations provisions, the same standards of liability apply under both Acts. Munson v. Del Taco Inc., 46 Cal.4th 661, 670, 94 Cal.Rptr.3d 685208 P.3d 623 (2009); Cal. Civ.Code § 51(f).
12. A condition which is chronic or merely in remission can still constitute a qualifying disability. 29 C.F.R. § 1630.2(j)(1)(vii). Thus, even if Plaintiff's disability resulted in variable degrees of impairment, he could still bring a claim under the ADA.
13. Defendants cite to a previous defense verdict against Plaintiff as evidence that Plaintiff does not have a qualifying disability, and request the Court to take judicial notice of the Order in that case. (See Requ. for Judicial Not. Ex. 17.) Whether Plaintiff suffered from a disability in February 2007, however, neither proves nor disproves Plaintiff suffered from a qualifying disability at the time of the instant alleged failure to accommodate in December 2008. Thus, while the previous defense verdict is noticeable, see Federal Rule of Evidence 201, and while the Court therefore grants the Request for Judicial Notice to the extent that Defendants attempt to assert issue preclusion here, the Court does not rely on this evidence in reaching its decision.
14. In fact, Plaintiff need not demonstrate multiple impairments resulting from his physical disability to show the condition "substantially limits" a major life activity. Here, Plaintiff's inability to sleep could on its own establish Plaintiff has a qualifying disability under the ADA. See 29 C.F.R. § 1630.2(j)(1)(viii).
15. The Ninth Circuit has found that a private entity's "certified" service requirement for service dogs does not necessarily violate the ADA. In Lentini v. California Center for the Arts, the Ninth Circuit found that an art center's failure to accommodate a patron accompanied by a certified service dog violated the ADA. 370 F.3d 837 (9th Cir.2004). In finding the center did not reasonably accommodate the plaintiff, however, the court did not criticize or reject the center's policy requiring service animals to be "certified." Under that policy, "certified" meant any animal "officially trained" to assist a person with a disability. Id. at 840. Thus, the Court finds it can consider industry standards for certifying service dog trainers and licensing service dogs in reviewing the evidence here.
16. In his Opposition, Plaintiff asserts that "telling an African-American he must eat outside is precisely the type of discrimination [P]laintiff faced in growing up in the South." (Opp'n at 12.) Plaintiff misstates the facts, however. Defendants' manager never denied Plaintiff entry to the restaurant. In her deposition, Ms. Garduno stated she told Plaintiff he could take the food "to-go" or leave his puppy outside. (Garduno Dep. 40:9-17.) Plaintiff seems to argue that race discrimination constitutes the extreme or outrageous conduct necessary to establish an IIED claim. Id. As Plaintiff offers no evidence suggesting Ms. Garduno denied entry to Plaintiff on account of his race, the Court finds this argument has no basis in fact.

the picture below has nothing to do with service dogs.  It's just some cool looking dogs.

Friday, June 9, 2017

What's New in 2017?

Basically, animal activists continue to ramp up their nonsense...that every retail outlet that sells animals like puppies, kittens, cats, rabbits, whatever--- MUST be "rescued" or shelter animals.

WHY does this seem wrong to us?

First of all--- there is not any duty for any store or outlet to ONLY SELL rescued animals. Even though we are well aware that the proponents can claim there is a rational basis for it, the evidence would prove that such tactics really means that the non profit sector seeks to benefit from usually having to BUY such animals themselves, in order to sell them.

Oh sure, people can go to shelters and not find what they want.  They can go to rescues and not find what they want. So rescues then have to scramble to find what people WANT--- and what most people want, is some animal that is not damaged, not aggressive, not dumb, not untrained, not a barking forever, untrained, house soiling, overly scared, overly timid, biting, overly hyper, overly sick, overly anything bad (as in behavior, health, temperament, manners,etc.)

And no matter what the rescues claim, and the rest of the AR people claim, there are some rehomed dogs that are ok. But for the most part, people don't surrender their dogs to shelters that much. They just try to give it away or charge some small fee by pushing it on Craigslist or online.  WHY??

Because everyone knows that shelter animals face daunting odds. There only has to be one seriously ill dog with distemper or parvo to make it spread to other animals, especially puppies, and those animal which were not vaccinated.

Some people can't even STAND to go into a shelter.  What is normally there is not something most people would want, but there are exceptions.  We have owned shelter dogs, but they were not without their faults.  However, having done animal rescue for years in the past, we are very aware of how the game is played.  And in the end, many non  profits exist to make the profit.  They pay no taxes. [In order to pay NO taxes, they must obtain the Federal tax exemption; failure to do this means there is no tax exemption on the proceeds received. Meaning, the animal you buy from they is a TAXABLE transaction to the buyer, and the proceeds are taxable to the seller.  There is no non profit "writeoff" for such a transaction.]

Non profits can claim whatever they want, but unless they are highly FUNDED--- and have TONS of donations--- they are going to be pushing off dogs onto people that THEY want people to have.  In order to really match dogs to people, most rescued animals are NOT suitable for novice owners at all.

In fact rescues should almost never sell dogs to novice owners for no other reason than the new owner won't know what the hell they are doing.

Last but not least, the new proposed law for California (that all retail sold dog/cat/kitten etc) MUST be "rescued" or shelter animals --- is likely not legal, especially when it is for the entire STATE.
We have seen no one address this issue, but believe as applied it would be illegal.  When non profits are making the laws, then regulating the laws, then controlling the sourcing of animals, the sales of animals and the oversight of what can be purchased, we believe that is far too broad of a reach as far as the general public goes, since there would be little to no proof that such tactics will reduce either overall animal populations (such as unwanted cats) or that it would even affect known shelters, since no one knows how many shelters or rescues even exist, because registration and oversight does not even exist for rescued animals.  The only plausible database is that of the state/or county, and with the software used by such entities, it is very easy to manipulate that software.

Meaning, it is not a big deal to be able to manipulate the numbers of animals claimed to have come "in" vs the numbers going "out."  All they have to do is open the gate, and let out a bunch of animals that they claimed they took in--- leave.  Or they can drop them off instead of taking them in.  Most parts of the city do not have strays running the streets.

Only in certain locations, usually the poor neighborhoods, will you see animals running the streets.  Like in Los Angeles in the barrio, dogs are routinely brought in and killed and then new dogs are obtained to replace the ones AC took.  This solves nothing except to remove them from the streets.  The key to stopping this is for local efforts to alter the dogs in poor areas.  It is that simple.  But Los Angeles gave up on that long ago, after their foolish idea was put in place believing they would become "no kill" in 10 years?  Very stupid.  Of course it would never work if you don't put 10 trucks for spay/neuter in the barrio areas.