Donald Cullen v. Netflix

FILED
NOT FOR PUBLICATION APR 01 2015

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

FOR THE NINTH CIRCUIT

DONALD CULLEN, on behalf of himself No. 13-15092
and all others similarly situated,
D.C. No. 5:11-cv-01199-EJD
Plaintiff - Appellant,

v. MEMORANDUM*

NETFLIX, INC.,

Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding

Argued and Submitted March 13, 2015
San Francisco California

Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.

Cullen appeals the district court’s dismissal of his California Disabled

Persons Act claim, Cal. Civ. Code §§ 54, 54.1(a), his Unruh Civil Rights Act

claim, Cal. Civ. Code §§ 51–52, and his Unfair Competition Law claim, Cal. Bus.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
& Prof. Code § 17200. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Cullen’s Disabled Persons Act and Unruh Civil Rights Act claims are

predicated on the Americans with Disabilities Act (“ADA”).1 See Cal. Civ. Code §

51(f) (“A violation of the right of any individual under the [ADA] shall also

constitute a violation of this section.”); id. § 54(c) (same). Under Title III of the

ADA, “[n]o individual shall be discriminated against on the basis of disability in

the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public accommodation.” 42

U.S.C. § 12182(a). We have previously interpreted the statutory term “place of

public accommodation” to require “some connection between the good or service

complained of and an actual physical place.” See Weyer v. Twentieth Century Fox

Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000). Because Netflix’s services are

not connected to any “actual, physical place[],” Netflix is not subject to the ADA.

See id. Therefore, in light of Weyer, Cullen’s ADA-predicated Disabled Persons

Act and Unruh Civil Rights Act claims fail as a matter of law. See id.

The district court held that Cullen lacked standing to assert a claim under the

Unfair Competition Law because he failed to allege causation—that is, Cullen

1
Cullen does not assert an independent ADA claim or any independent
Disabled Persons Act or Unruh Civil Rights Act claims not predicated on an ADA
violation.

2
failed to allege an injury resulting from Netflix’s business practices. See Cal. Bus.

& Prof. Code § 17204. Cullen failed to challenge this holding in his opening brief

and therefore waived any objection to the district court’s dismissal for lack of

standing. See Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th

Cir. 2003) (citing Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998)). Therefore,

we affirm the district court’s dismissal.

AFFIRMED.