                                                                           FILED
                           NOT FOR PUBLICATION                             APR 11 2014

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



                            FOR THE NINTH CIRCUIT


AL DAVIS,                                        No. 12-55361

              Plaintiff - Appellant,             D.C. No. 5:10-cv-01483-VAP-
                                                 DTB
  v.

DALE MA; et al.,                                 MEMORANDUM*

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                             Submitted April 8, 2014**
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Al Davis entered a Burger King restaurant with a 13-week-old puppy and

was denied service under the restaurant’s “no dogs” policy. Alleging that he is


        *
             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).

                                          1
disabled and that he was training the puppy to be a service animal, Davis filed a

complaint making claims for disability discrimination under the Americans with

Disabilities Act and the California Unruh Civil Rights Act. The district court

granted summary judgment for the defendants on the ground that Davis had not

raised a genuine issue of material fact about whether the puppy was a service

animal, or whether a service animal could help ameliorate his disability. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Both California and federal law require a showing that an individual’s

disability can be ameliorated by a particular service animal. See 28 C.F.R.

§ 36.104; Cal. Civ. Code § 54.1(b)(6)(C)(iii). In its order granting summary

judgment, the district court found that Davis failed to raise a triable issue of fact

about whether a service dog could ameliorate his disability. On appeal, Davis does

not argue the district erred by finding he failed to raise a genuine issue of fact that

his disability is capable of being ameliorated by a service dog. Davis has thus

waived any objection to this finding, see Indep. Towers of Wash. v. Wash., 350

F.3d 925, 929 (9th Cir. 2003), and he cannot prevail on his disability

discrimination claims.

      Davis also argues the district court erred by dismissing his claims for racial

discrimination and intentional infliction of emotional distress. Although Davis

                                            2
stated in his claim for intentional infliction of emotional distress that

“[d]iscrimination against disabled minorities . . . is unusually damaging . . . when

the discrimination is against a person of African-American heritage,” the complaint

did not make an independent claim for racial discrimination. Neither did the

district court err by granting summary judgment on Davis’ claim for intentional

infliction of emotional distress. This claim was based on Davis’ underlying claims

of disability discrimination, and he 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).


      AFFIRMED.




                                            3
