370 F.3d 837 (9th Cir. 2004), 01-56612, Lentini v. California Center for the Arts, Escondido

Docket Nº:01-56612.
Citation:370 F.3d 837
Party Name:Kathleen LENTINI, Plaintiff-Appellee, v. CALIFORNIA CENTER FOR THE ARTS, ESCONDIDO; Alan Corbin; Randy Vogel, Defendants-Appellants, and Does 1-10, Defendant.
Case Date:May 27, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 837

370 F.3d 837 (9th Cir. 2004)

Kathleen LENTINI, Plaintiff-Appellee,


CALIFORNIA CENTER FOR THE ARTS, ESCONDIDO; Alan Corbin; Randy Vogel, Defendants-Appellants,


Does 1-10, Defendant.

No. 01-56612.

United States Court of Appeals, Ninth Circuit

May 27, 2004

Argued and Submitted March 30, 2004.

Page 838

[Copyrighted Material Omitted]

Page 839

Michael Hogan, Hogan Guiney Dick, LLP, San Diego, CA, for the defendants-appellants.

Amy B. Vandeveld, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CV-99-01783-NAJ.

Before: GOODWIN, PREGERSON, and TALLMAN, Circuit Judges.

PREGERSON, Circuit Judge.

This case comes to us following a bench trial that resulted in a judgment against the defendants-appellants. For the reasons discussed below, we affirm the district court's judgment in all respects.


A. Factual History

Appellee Kathleen Lentini is a quadriplegic and uses a wheelchair for mobility. At all relevant times, Lentini had a small, black Shih Tzu/Poodle mix named Jazz. Jazz functions as Lentini's service dog by providing minimal protection and retrieving small dropped items.1

Page 840

Appellant California Center for the Arts--Escondido (the "Center") is a not-for-profit public benefit corporation, founded to promote the advancement of artistic entertainment and education. At all relevant times, appellant Alan Corbin was the Center's House Manager, and appellant Randall Vogel was the Director of Center Sales and Event Services. At all relevant times, the Center had a written policy stating that "animals are not permitted in the theater, except for certified assistance animals accompanying people with disabilities." "Certified" meant any animal officially trained to assist a person with a disability. The Center also had an unwritten policy that ticket takers were to admit any "recognizable" service animals without any questions; "recognizable" animals were those wearing an outer garment or some other identifying device.

Lentini attended approximately ten or eleven events at the Center with Jazz during the Center's 1997 and 1998 seasons. On each of these occasions, she was initially told that she could not enter the Center with her dog. However, after she explained that Jazz was a service dog, Lentini and Jazz were both admitted.

In October 1998, Lentini and Jazz attended an R. Carlos Nakai concert at the Center. During intermission, Jazz either yipped2 or barked when an individual approached Lentini; Jazz made no further noises after Lentini advised Jazz that it was "okay." Vogel was on duty at this performance. He believed that he heard a dog bark, but he did not feel a need to stop the disturbance. He did not mention the noise to Lentini despite the fact that he spoke with her after the concert about parking issues and a lack of a ramp for disabled persons. No patrons complained about the incident.

Also in October 1998, Lentini and Jazz attended a performance of "The Music Man" at the Center. During intermission, Jazz again yipped or emitted a small barking noise when individuals seated nearby were returning to their seats and Jazz apparently perceived them to be in his and Lentini's territory. Again, once Lentini advised Jazz that everything was "okay," he made no further noises. No complaints were made to Center staff. But at some point prior to January 13, 1999, Vogel instructed Center staff not to let Lentini back in with her dog.

On January 13, 1999, Lentini and Jazz attempted to attend a dance performance at the Center entitled "Tango Buenos Aires." On that night, Corbin was the House Manager on duty. He told Lentini that she could not enter the theater with Jazz. Although Lentini explained that Jazz was a service dog, Corbin still refused admittance to Lentini and Jazz because of Jazz's barking at the two prior performances.3 Notwithstanding Corbin's refusal, Lentini entered the theater with Jazz. Corbin spoke with Bruce Beers, the Center's Director of Operations. Beers believed that Jazz was the dog that Vogel had heard at the R. Carlos Nakai concert. He recommended that Corbin tell the Center's security staff to instruct Lentini to remove

Page 841

Jazz from the premises and, if she refused, to call the Escondido police to have the dog removed.

Center Security Officer Aaron Sale spoke with Lentini and told her that she was not permitted to bring her dog into the concert hall. Sale told her that she could attend the performance if she left Jazz in the car. Apparently this was not an option because of cold weather that night. Moreover, Lentini and Jazz work as a team and placing Jazz in the car would disrupt the bond that was created between them as a result of Jazz's training.

When Lentini refused to leave the premises with Jazz, the Center staff called the Escondido Police Department at Corbin's direction. Escondido Police Officers Joe Creed and Paul Woodward came and spoke with Lentini and Corbin. Corbin told them that Lentini was not allowed in the theater with Jazz because the dog had caused a prior disturbance. Corbin stated that Lentini could attend the performance if she put Jazz in her car. These conversations occurred in a calm manner, and Jazz made no disturbances at that time. Nevertheless, the attempted mediation by the police officers failed, and Corbin indicated that he was prepared to sign a citizen's arrest in order to have Lentini arrested and removed from the premises. Upon learning this, Lentini agreed to leave in exchange for a promised refund of her tickets.

Immediately after this incident, Lentini suffered from severe body shakes, which created difficulty in steering her wheelchair. Lentini required the assistance of her companion, Richard Maciel, before she was able to drive safely home. On or about February 16, 1999, the Center sent Lentini her refund and included a brochure for the upcoming performance season.

B. Procedural History

Lentini filed suit against the Center, Corbin, Vogel, and Does 1 through 10 on August 23, 1999. Her complaint included claims under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), under California's Unruh and Disabled Persons Acts, California Civil Code §§ 51 et seq., 52 et seq., and 54 et seq., and for negligence. The complaint included additional claims for declaratory and injunctive relief.

On cross-motions for summary judgment, the district court disposed of claims related to architectural barriers in the Center as well as Lentini's claim that she was acting on behalf of all persons similarly situated. A bench trial was held between March 27 and April 3, 2001. On August 13, 2001, the district court filed its findings of fact and conclusions of law, finding in favor of Lentini on all counts except for her claims of retaliation and negligence.

In addition to detailed findings of fact that related to the general chronology of events, the district court made findings of fact that related specifically to the discriminatory treatment Lentini suffered at the Center on January 13, 1999. Among them, the district court found that Corbin had told Lentini that only seeing-eye dogs were allowed in the theater and that Corbin refused to listen to Lentini's explanation that Jazz was her service dog. The court found that, in both a "House Manager's report" written on January 13, 1999, as well as in conversation with Tina Ostrem, the Assistant Director of Sales, Corbin stated that Lentini was excluded and the police were called because Lentini failed to produce her tickets at the door and the performance was being delayed--never mentioning the fact that Jazz had previously created a disturbance. The

Page 842

court found that Vogel told Ostrem the same story. The court found Corbin's and Vogel's explanation regarding tickets pre-textual, "not to mention untrue." The district court found that Corbin, Vogel, and other staff members had doubts--or simply did not believe--that Jazz was a service animal, and the court found that Corbin's true reason for excluding Lentini was his mistaken belief that Jazz was not a service animal. Moreover, the court found that Corbin used Beer's recommendation to call the police "as an affirmation of his already existing desire to eject Lentini...."

The district court also made a number of findings regarding the effect of admitting service animals on the Center. In this context, the court found that the Center's principle business of generating revenue for the support of its museum, education, outreach and access programs is a "highly laudable purpose." Moreover, it found that diminished revenue due to a loss of patrons or artists would negatively impact the Center's core business. The court found that "yipping" is an acceptable service behavior although, in certain instances, it may be inappropriate. It concluded that "[a] service dog who barks during a performance for an improper or inappropriate reason would disrupt performing artists and likely disturb and disgruntle other patrons. It would also deprive the Center of the advantages it has over other concert halls due to its intimate setting and wonderful acoustics."

The court found that the Center had an unwritten policy "to exclude service animals that have made sounds at prior events regardless of the level of the noise and regardless of whether the animal's noises were made for a legitimate reason, such as alerting its owner of an oncoming medical emergency or dangerous condition." However, the court found that the Center did not have a similar policy applicable to humans "to exclude a human who made a noise at a prior event for...

To continue reading