                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 06 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


HERMAN CLAVON, III,                              No. 12-55786

              Plaintiff - Appellant,             D.C. No. 2:10-cv-04908-JHN-PLA

  v.
                                                 MEMORANDUM*
ROSCOE BK RESTAURANT, INC. and
DALE MAE,

              Defendants - Appellees.



HERMAN CLAVON, III,                              No. 13-55137

              Plaintiff - Appellant,             D.C. No. 2:10-cv-04908-ABC-
                                                 PLA
GLENN A. MURPHY,

              Appellant,

  v.

ROSCOE BK RESTAURANT, INC. and
DALE MAE,

              Defendants - Appellees.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    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.



                                          2
      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

                                          3
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

                                          4
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

                                            5
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.




                                         6
