Mogilefsky v. Panda Express CA2/6

Filed 6/20/22 Mogilefsky v. Panda Express CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

ARTHUR MOGILEFSKY, 2d Civ. No. B314888 (Super. Ct. No. 20CV-0454) Plaintiff and Appellant, (San Luis Obispo)

v.

PANDA EXPRESS, INC.,

Defendant and Respondent.

After declaring appellant Arthur Mogilefsky a “vexatious litigant,” the trial court ordered him to furnish security to maintain his pending lawsuit against respondent Panda Express, Inc. (Panda). When appellant failed to post the security, the court dismissed his action pursuant to Code of Civil Procedure section 391.4.1 Appellant contends the dismissal must be reversed because the court erroneously declared him a vexatious

All statutory references are to the Code of Civil 1

Procedure.

litigant. We conclude substantial evidence supports both the court’s vexatious litigant finding and the dismissal. We affirm. FACTS AND PROCEDURAL BACKGROUND Panda owns and operates a chain of Asian-style fast food restaurants. On January 3, 2020, appellant visited Panda’s Arroyo Grande location. Appellant, who had pre-ordered his food online, carried his small dog, a Chihuahua mix, under his arm. Appellant’s food was ready when he arrived and he proceeded to the counter to retrieve his food. Appellant held the dog above the food counter. Panda employees served appellant, who then left with his to-go order. Appellant alleges that during this visit, three of Panda’s employees told him dogs are not allowed in the restaurant. Appellant claims he told them his dog was a service dog and that the Panda employees’ comments violated the Americans with Disabilities Act (ADA), as incorporated by California’s Unruh Act. Panda maintains that under its policies, service dogs are allowed to accompany guests with disabilities in all areas where guests are permitted and that its associates are trained to welcome service dogs. According to associates who worked at the Arroyo Grande location, appellant was a regular guest who had never been denied service or asked to leave because of his dog. 2 On January 6, 2020, appellant filed Arthur Mogilefsky v. Panda Express, San Luis Obispo (SLO) Sup. Ct. No. 20LC-0018 (Panda I), a lawsuit arising out of his January 3, 2020 Panda