Herman Clavon, Iii v. ROSCOE BK RESTAURANT, INC. and DALE MAE

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERMAN CLAVON, III,
Plaintiff - Appellant,
v.
ROSCOE BK RESTAURANT, INC. and
DALE MAE,
Defendants - Appellees.
No. 12-55786
D.C. No. 2:10-cv-04908-JHN-PLA
MEMORANDUM*
HERMAN CLAVON, III,
Plaintiff - Appellant,
GLENN A. MURPHY,
Appellant,
v.
ROSCOE BK RESTAURANT, INC. and
DALE MAE,
Defendants - Appellees.
No. 13-55137
D.C. No. 2:10-cv-04908-ABC-
PLA
FILED
MAY 06 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Appeal from the United States District Court
for the Central District of California
Jacqueline H. NGUYEN, District Judge, Presiding
Argued and Submitted April 8, 2014
Pasadena, California
Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.
Herman Clavon entered a Burger King restaurant with his dog “Knight” and
was denied service under the restaurant’s “no dogs” policy. Alleging that he is
disabled and that the dog was a service animal, Clavon filed a complaint making
state and federal claims for race and disability discrimination. The district court
granted summary judgment for the defendants on the grounds that Clavon failed to
show he was disabled or that the dog was a service animal, and failed to present
any evidence that his exclusion from the restaurant was motivated by racial
animus. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Federal law defines a “service animal” as “any dog that is individually
trained to do work or perform tasks for the benefit of an individual with a
disability.” 28 C.F.R. § 36.104; see also Cal. Civ. Code § 54.1(b)(6)(C)(iii)
(defining “service dog” as “any dog individually trained to the requirements of the
individual with a disability”). “The work or tasks performed by a service animal
must be directly related to the individual's disability.” 28 C.F.R. § 36.104.
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The district court found that “the record is devoid of any competent evidence
creating a triable issue of fact that Knight was trained to perform tasks to help
Plaintiff manage his disability.” When asked at his deposition to specify how
Knight assisted Clavon in managing his disabilities, Clavon was vague and
evasive. Despite repeated questions, Clavon failed to specify the particular tasks
Knight was trained to perform. “[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
It was not until the defendants filed a motion for summary judgment that
Clavon submitted a declaration alleging that Knight was trained to pull Clavon’s
wheelchair and to carry things in a pack, and that Clavon could hold Knight’s leash
to help with balance. “‘[I]f a party who has been examined at length on deposition
could raise an issue of fact simply by submitting an affidavit contradicting his own
prior testimony, this would greatly diminish the utility of summary judgment as a
procedure for screening out sham issues of fact.’” Kennedy v. Allied Mut. Ins. Co.,
952 F.2d 262, 266 (9th Cir. 1991) (quoting Foster v. Arcata Assocs., Inc., 772 F.2d
1453, 1462 (9th Cir. 1985)). Although a party is permitted to clarify prior
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testimony elicited by opposing counsel on deposition, Van Asdale v. Int’l Game
Tech., 577 F.3d 989, 998-99 (9th Cir. 2009), a party may not embellish prior
deposition testimony “solely to create a material factual dispute in a tactical
attempt to evade an unfavorable summary judgment.” Hambleton Bros. Lumber
Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir. 2005) (discussing the
scope of corrections to depositions allowed under Fed. R. Civ. P. 30(e)). The
differences between the allegations in Clavon’s declaration and his prior non-
responsive deposition answers are not “minor inconsistencies that result from an
honest discrepancy, a mistake, or newly discovered evidence” that should be
overlooked by the sham affidavit rule. Van Asdale, 577 F.3d at 999 (internal
quotation marks omitted). We therefore conclude that the district court did not err
by finding that Clavon failed to establish a triable issue of fact concerning the tasks
Knight was trained to perform.
The district court also did not err by granting summary judgment to the
defendants on Clavon’s claims for racial discrimination under the Unruh Civil
Rights Act. Throughout his briefing and complaint, Clavon cited no evidence of
racial discrimination other than that he is “an African American who was refused
meal service at a public restaurant.” Clavon argues this is enough for a prima facie
showing of racial discrimination, and now “the burden shifts to the defendant to
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prove it had a legitimate non-discriminatory reason for the adverse action.”
Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir. 2006). The
defendants have met this burden: they claim to have excluded Clavon because of
his dog, and Clavon has not shown this reason was pretextual. We conclude the
district court did not err by granting summary judgment on Clavon’s racial
discrimination claims.
We further hold the district court did not err by granting summary judgment
to the defendants on Clavon’s claim for intentional infliction of emotional distress.
This claim was premised on the same factual allegations underlying his claims of
disability and racial discrimination. Clavon failed to show that the defendants
engaged in “extreme or outrageous conduct” by enforcing its “no dogs” policy.
See Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (laying out elements of claim
for intentional infliction of emotional distress).
Finally, we turn to the consolidated appeal in this case. We review an order
granting attorney’s fees and the entry of a pre-filing order for abuse of discretion.
De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). Because the district
court did not err by granting summary judgment to the defendants, it did not abuse
its discretion by granting attorney’s fees against Clavon. We also conclude that the
district court did not abuse its discretion by entering a pre-filing order in light of
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the serious evidence of vexatious conduct in this case. The pre-filing order does
not prevent Clavon’s attorney, Glenn Murphy, from filing suit or engaging in the
practice of law.
AFFIRMED.
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