                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 05 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NORMA DAVIS,                                     No. 11-55908

              Plaintiff - Appellant,             D.C. No. 2:10-cv-06239-PSG-E

  v.
                                                 MEMORANDUM *
DIPAK PATEL; NEHA, LLC; AVISH
PARTNERSHIP; DARLIN PERAZA;
MAGALY ZAPATA,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                           Submitted January 10, 2013 **
                              Pasadena, California

Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and
HELLERSTEIN, Senior District Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Norma Davis, an African American who is allegedly disabled and uses a

service dog, sued the owners and operators of a Super 8 Motel for not allowing her

to stay in a room with her dog. Her complaint sets forth four causes of action:

racial discrimination in violation of the Civil Rights Act of 1964, disability

discrimination in violation of the Americans with Disabilities Act of 1990 (ADA),

racial and disability discrimination in violation of California’s Unruh Civil Rights

Act, and intentional infliction of emotional distress (IIED). Defendants moved for

summary judgment on all claims without discovery. The district court granted the

motion. Davis then moved for relief from summary judgment—in effect, a motion

for reconsideration. The district court denied her motion. Davis timely appealed.

We affirm on the race-discrimination claims but reverse and remand on the

disability claims and the IIED claim.

      On the disability claims, the district court held that Davis had failed to show

that she was truly disabled, that her disability required the use of a service dog, or

that her dog was properly licensed. But the defendants did not move for summary

judgment on those grounds; in fact, the defendants conceded in their statement of

uncontroverted facts that Davis was disabled. A district court may grant a

summary judgment motion “on grounds not raised by a party” only “[a]fter giving

[the nonmovant] notice and a reasonable time to respond.” Fed. R. Civ. P.


                                           2
56(f)(2). Only “if the moving party placed the nonmovant party on proper notice”

can the latter fairly “be held to have failed to satisfy its duty . . . to designate

specific facts showing that there is a genuine issue for trial.” Katz v. Children’s

Hosp. of Orange Cnty., 28 F.3d 1520, 1534 (9th Cir. 1994). “Reasonable notice

implies adequate time to develop the facts on which the litigant will depend to

oppose summary judgment.” Norse v. City of Santa Cruz, 629 F.3d 966, 972 (9th

Cir. 2010) (en banc). Because the district court did not give Davis notice and time

to respond on these issues, it erred.

       The district court also granted summary judgment on Davis’s disability

claims because she had failed to show that the motel’s denial of accommodation

was based solely on her handicap. But “[i]t is undisputed that a plaintiff need not

show intentional discrimination in order to make out a violation of the ADA” or

the Unruh Act. Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 846–47 (9th Cir.

2004). She may show simply that the hotel failed to make reasonable

modifications to its policy, 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. §

36.302(c)(1) (“Generally, a public accommodation shall modify policies, practices,

or procedures to permit the use of a service animal by an individual with a

disability.”) Without discovery, the record before us is an insufficient basis on

which to find that there has been no disability discrimination as a matter of law.


                                             3
         On Davis’s race-discrimination claims, the court held that “the record in this

case contains no admissible evidence suggesting that Plaintiff was discriminated

against because of race.” For the reasons set out in the district court opinion, we

agree.

         On Davis’s IIED claim, the district court determined that Davis had failed to

present evidence showing the nature of her distress and indicating that the alleged

infliction was intentional. But defendants did not move for summary judgment on

those grounds. Instead, they contended only that Davis had failed to show

causation. Because it is at least possible that Davis has evidence showing damages

and intent but that—lacking notice that such evidence would prove relevant at

summary judgment—she chose not to introduce it, the district court erred. Fed. R.

Civ. P. 56(f)(2); Katz, 28 F.3d at 1534.

         The district court’s denial of Davis’s motion for reconsideration was not an

abuse of discretion.

         AFFIRMED IN PART AND REVERSED IN PART. The parties shall

bear their own costs.




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