                 CORRECTED 2/10/14

                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GREATER LOS ANGELES AGENCY ON              No. 12-15807
DEAFNESS, INC.; DANIEL JACOB;
EDWARD KELLY; JENNIFER OLSON,                 D.C. No.
on behalf of themselves and all            3:11-cv-03458-
others similarly situated,                       LB
                  Plaintiffs-Appellees,

                  v.                         ORDER
                                           CERTIFYING
CABLE NEWS NETWORK, INC.,                  QUESTION TO
incorrectly sued as Time Warner            CALIFORNIA
Inc.,                                       SUPREME
                Defendant-Appellant.         COURT


                  Filed February 5, 2014

  Before: J. Clifford Wallace, M. Margaret McKeown,
          and Sandra S. Ikuta, Circuit Judges.
2     GREATER L.A. AGENCY ON DEAFNESS V. CNN

                        COUNSEL

Thomas R. Burke (argued), Rochelle L. Wilcox, Janet L.
Grumer, Jeff Glasser, Davis Wright Tremaine, San Francisco,
California; Ronald London, Davis Wright Tremaine,
Washington, D.C., for Defendant-Appellant.

Laurence W. Paradis (argued), Mary-Lee K. Smith, and
Michael Nunez, Disability Rights Advocates, Berkeley,
California; Linda M. Dardarian and Jason H. Tarricone,
Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland,
California; Peter Blanck, Syracuse, New York, for Plaintiffs-
Appellees.

Karl Olson, Ram, Olson, Cereghino & Kopczynski, San
Francisco, California, for Amici Curiae Los Angeles Times
Communications LLC, McClatchy Newspapers, Inc., Hearst
Corporation, California Newspaper Publishers Association,
and California Broadcasters Association.

John F. Waldo, Portland, Oregon, for Amici Curiae
Washington State Communication Access Project, Oregon
Communication Access Project, Association of Late
Deafened Adults (ALDA), Aloha State (Hawaii) Association
of the Deaf, Arizona Association of the Deaf, California
Association of the Deaf, Nevada Association of the Deaf,
Idaho Association of the Deaf, and Oregon Association of the
Deaf.

Howard A. Rosenblum and Andrew S. Phillips, National
Association of the Deaf, Silver Spring, Maryland; Blake E.
Reid and Angela J. Campbell, Institute for Public
Representation, Georgetown Law, Washington, D.C., for
Amici Curiae Telecommunications for the Deaf and Hard of
       GREATER L.A. AGENCY ON DEAFNESS V. CNN                  3

Hearing, Inc., National Association of the Deaf, and the
Hearing Loss Association of America.


                           ORDER

    We respectfully ask the California Supreme Court to
answer the certified question set forth below. The answer to
this question will determine the outcome of this appeal, and
there is no controlling precedent in the decisions of the
California Supreme Court. Although we are mindful that our
certification request adds to the burgeoning caseload of the
California Supreme Court, this case raises an important
question of California law and has broad implications for
disability rights. “Comity and federalism counsel that the
California Supreme Court, rather than this court, should
answer” the certified question. Munson v. Del Taco, Inc.,
522 F.3d 997, 999 (9th Cir. 2008) (certifying questions to
California Supreme Court).

                    QUESTION CERTIFIED

   Pursuant to Rule 8.548 of the California Rules of Court,
we respectfully request that the Supreme Court of California
answer the following question:

    The California Disabled Persons Act, Cal. Civ. Code
§§ 54 et seq. (“DPA”) provides that “[i]ndividuals with
disabilities shall be entitled to full and equal access, as other
members of the general public, to accommodations,
advantages, facilities . . . and privileges of . . . places of
public accommodation . . . and other places to which the
general public is invited.” Id. § 54.1(a)(1). Does the DPA’s
4       GREATER L.A. AGENCY ON DEAFNESS V. CNN

reference to “places of public accommodation” include web
sites, which are non-physical places?

    In response to this question, the California Supreme Court
shall not be bound by the manner in which the question has
been phrased by this court. We agree to follow the answer
provided by the California Supreme Court.

                         BACKGROUND

    Defendant Cable News Network, Inc. (“CNN”) operates
CNN.com, a publicly accessible web site containing online
news videos. In December 2010, the Greater Los Angeles
Agency on Deafness, Inc. (“GLAD”) requested that Time
Warner Inc. (“Time Warner”)1 caption all of the videos on its
news web sites so that hearing-impaired visitors could have
full access to the online videos. In February 2011, CNN
responded that it offered a number of text-based services and
explained that CNN would be “ready to provide whatever
web access is ultimately required” by a then-pending federal
rulemaking action regarding the captioning of online videos.

    GLAD and CNN did not reach an agreement over
captioning, and in June 2011, GLAD filed suit in California
state court, naming Time Warner2 as the defendant. GLAD’s
Complaint alleges violations of the California Unruh Civil


    1
    CNN is a wholly owned subsidiary of Turner Broadcasting System,
Inc., which, according to CNN’s Corporate Disclosure Statement, “is
ultimately wholly owned by Time Warner Inc.”
    2
    Although GLAD initially named Time Warner as defendant in the
Complaint, the parties subsequently stipulated that CNN would be
substituted for Time Warner.
       GREATER L.A. AGENCY ON DEAFNESS V. CNN                  5

Rights Act, Cal. Civ. Code §§ 51 et seq. (“Unruh Act”), and
the California Disabled Persons Act, Cal. Civ. Code §§ 54 et
seq. (“DPA”), and seeks damages, declaratory relief, and a
preliminary and permanent injunction “requiring [CNN] to
take steps necessary to ensure that the benefits and
advantages offered by CNN.com are fully and equally
enjoyable to persons who are deaf or have hearing loss in
California.” CNN removed the action to federal court, and
the parties consented to have the matter heard before a
magistrate judge. CNN filed a motion to strike under
California’s anti-SLAPP statute, Cal. Civ. Proc. Code
§ 425.16, which provides for the “early dismissal of
unmeritorious claims filed to interfere with the valid exercise
of the constitutional rights of freedom of speech and
petition,” Club Members for an Honest Election v. Sierra
Club, 45 Cal. 4th 309, 315 (2008).

     The statute establishes a two-step analysis for determining
whether a cause of action must be stricken under Section
425.16. Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002).
Under the first step, the defendant is required to make “a
threshold showing that the challenged cause of action” arises
from acts “taken in furtherance of the [defendant]’s right of
petition or free speech . . . in connection with a public issue.”
Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 67
(2002) (alteration in original) (internal quotation marks
omitted). At the second step, the burden shifts to the plaintiff
to establish, with competent evidence, “a probability that [he]
will prevail on the claim[s].” Cal. Civ. Proc. Code
§ 425.16(b)(1). Applying this analysis, the magistrate judge
found that CNN failed to satisfy the threshold showing at the
first step of the anti-SLAPP analysis and therefore denied
CNN’s anti-SLAPP motion without reaching the second
merits-based step. CNN timely appealed.
6      GREATER L.A. AGENCY ON DEAFNESS V. CNN

     In an opinion published concurrently with this order, we
reversed the magistrate judge’s decision at the first step of the
anti-SLAPP inquiry, concluding that GLAD’s action arose
from conduct in furtherance of CNN’s free speech rights. We
exercised our discretion to consider the second step in the
first instance. Wallace v. McCubbin, 196 Cal. App. 4th 1169,
1195 (2011) (“[W]e have discretion to decide the [second
step anti-SLAPP] issue ourselves, since it is subject to
independent review.”). We concluded that GLAD was unable
to prove a probability of prevailing on its Unruh Act claims
as a matter of California law because GLAD could not
establish that CNN engaged in intentional discrimination.
After rejecting CNN’s constitutional objections to GLAD’s
DPA claims, we deferred decision on the remaining issue of
whether GLAD can prove a probability of prevailing on its
DPA claims pending resolution of the certified question.

               REASONS FOR CERTIFICATION

    The certified question presents an issue of significant
precedential and public policy importance. Numerous recent
cases have discussed the DPA’s applicability to virtual spaces
like web sites, but there is no conclusive California authority
on point. Since the Internet is increasingly ubiquitous in
daily life, and this question is likely to recur, we respectfully
request that the California Supreme Court resolve the issue.
We provide the following summary of the parties’ arguments
and the relevant case law regarding the applicability of the
DPA to web sites. We acknowledge that reasonable
arguments exist on both sides of the issue and do not
advocate for a particular resolution to the certified question.

   In its brief to our court, CNN argues that “[n]o published
appellate decision has interpreted the [DPA] to apply to a
       GREATER L.A. AGENCY ON DEAFNESS V. CNN                7

website that is not related to a brick and mortar place of
public accommodation.” To support this position, CNN relies
on federal district court cases in California analyzing DPA
claims deriving from alleged Americans with Disabilities Act
(“ADA”) violations. See Cullen v. Netflix, Inc., 880 F. Supp.
2d 1017, 1024 (N.D. Cal. 2012) (stating that “[t]he Netflix
website is not an actual physical place, and therefore, under
Ninth Circuit law, is not a place of public accommodation”
under the ADA (internal quotation marks omitted)); Nat’l
Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 952,
958 (N.D. Cal. 2006) (“Target I”) (stating, as to the ADA,
that the “Ninth Circuit has declined to join those circuits
which have suggested that a ‘place of public accommodation’
may have a more expansive meaning”). In Netflix, the court
ruled that, because the plaintiff could not show a violation of
the ADA, he could not bring derivative claims for violation
of the DPA based on Netflix’s failure to provide closed
captioning for hearing-impaired individuals on its streaming
library. Netflix, 880 F. Supp. 2d at 1024.

    CNN further contends that California courts have applied
the DPA only where there was a denial of physical access.
See Turner v. Ass’n of Am. Med. Colls., 167 Cal. App. 4th
1401, 1412–13 (2008) (holding that there was no violation of
the DPA where there was no denial of physical access to
testing facility); Madden v. Del Taco, Inc., 150 Cal. App. 4th
294, 301 (2007) (holding that § 54 “has always drawn
meaning from a growing body of legislation intended to
reduce or eliminate the physical impediments to participation
of physically handicapped persons in community life”
(alterations omitted) (internal quotation marks omitted)).

    GLAD counters that the cases limiting the scope of DPA
claims involved claims that were derivative of ADA
8      GREATER L.A. AGENCY ON DEAFNESS V. CNN

violations. GLAD posits that because its DPA claims arise
independently of the ADA, these claims are not foreclosed by
the authority cited by CNN. More specifically, in Netflix, the
court stated that the “[plaintiff] may be able to pursue his
discrimination claims if they are asserted as independent
claims separate from an ADA violation because both the
Unruh Act and the DPA apply to websites.” 880 F. Supp. 2d
at 1024. GLAD also relies upon Nat’l Fed’n of the Blind v.
Target Corp., 582 F. Supp. 2d 1185 (N.D. Cal. 2007)
(“Target II”), where the court held for class certification
purposes that “the DPA reach[es] Target.com as a kind of
business establishment and an accommodation, advantage,
facility, and privilege of a place of public accommodation.”
Id. at 1196.

    GLAD additionally states that, although the cases upon
which CNN relies address the DPA’s application to physical
places, these cases did not specifically address whether the
DPA applies to non-physical places. GLAD maintains that
the DPA should be interpreted broadly, citing California
authority stating that the DPA “may also be construed as
requiring equal physical access to a nontangible location such
as an internet site.” Turner, 167 Cal. App. 4th at 1412. In
addition, GLAD argues that the addition of “telephone
facilities” to the list of places covered by the DPA favors a
holding that the DPA applies to web sites, because “telephone
facilities” covers not just physical locations, but also “tariff
items and other equipment and services.” Cal. Civ. Code
§ 54.1(a)(1), (2).

    Finally, GLAD points to the DPA’s statement that
“[i]ndividuals with disabilities shall be entitled to full and
equal access, as other members of the general public, to
accommodations, advantages, facilities . . . and privileges
       GREATER L.A. AGENCY ON DEAFNESS V. CNN                9

of . . . places of public accommodation . . . and other places
to which the general public is invited.” Id. § 54.1(a)(1).
GLAD buttresses its policy argument by stating that
“California courts have applied a canon of broad construction
to civil rights statutes generally, and to § 51 [the Unruh Act]
and § 54.1 [the DPA] in particular.” Arnold v. United Artists
Theatre Circuit, Inc., 866 F. Supp. 433, 438 (N.D. Cal. 1994).
This canon of construction, GLAD argues, reinforces the
contention that “CNN.com is surely a ‘place’ to which the
public is ‘invited,’ particularly given the increasing
importance of the Internet.” CNN’s reply brief rejects such
a broad construction of the statute, focusing on the fact that
the statutory text of the DPA “does not include the words
‘internet’ or ‘services’ or any other words indicating that it
applies to anything other than physical places.”

    The foregoing precedent leaves us unable to predict how
the California Supreme Court would resolve the certified
question. Because the question would have significant
ramifications for California disability law and would
determine the outcome of this appeal, we respectfully seek
guidance from the California Supreme Court.

             ADMINISTRATIVE INFORMATION

    The title of this matter is GREATER LOS ANGELES
AGENCY ON DEAFNESS, INC.; DANIEL JACOB;
EDWARD KELLY; JENNIFER OLSON, on behalf of
themselves and all others similarly situated, v. CABLE
NEWS NETWORK, INC., incorrectly sued as Time Warner
Inc. The docket number is 12-15807. If our request for
decision is granted, we designate CNN as the petitioner. Cal.
R. Ct. 8.548(b)(1).
10    GREATER L.A. AGENCY ON DEAFNESS V. CNN

   The names and addresses of counsel for defendant-
appellant CNN are:

       Thomas R. Burke
       Jeffrey D. Glasser
       Rochelle L. Wilcox
       Janet L. Grumer
       Davis Wright Tremaine LLP
       505 Montgomery Street, Suite 800
       San Francisco, CA 94111

       Ronald London
       Davis Wright Temaine LLP
       1919 Pennsylvania Avenue, NW, Suite 800
       Washington, DC 20006

   The names and addresses of counsel for plaintiffs-
appellees GLAD, Daniel Jacob, Edward Kelly, and Jennifer
Olson are:

       Laurence W. Paradis
       Michael S. Nunez
       Mary-Lee K. Smith
       Disability Rights Advocates
       2001 Center Street, Fourth Floor
       Berkeley, CA 94704

       Peter Blanck
       Law Offices of Peter Blanck
       Crouse-Hinds Hall, Suite 300
       900 S. Crouse Ave.
       Syracuse, NY 13244
       GREATER L.A. AGENCY ON DEAFNESS V. CNN                11

       Linda M. Dardarian
       Jason H. Tarricone
       Goldstein, Borgen, Dardarian & Ho
       300 Lakeside Drive, Suite 1000
       Oakland, CA 94612

    Pursuant to California Rule of Court 8.548(d), the Clerk
of this Court shall forward an original and 10 copies of this
order, under official seal, to the California Supreme Court,
along with a certificate of service on the parties, and copies
of all briefs, excerpts of record, requests for judicial notice,
and post-argument letters that have been filed with this court.

    This case is withdrawn from submission until further
order of this court, and all further proceedings in this court
are stayed pending final action by the California Supreme
Court. The parties shall notify the Clerk of this Court within
seven days after the California Supreme Court accepts or
rejects certification, and again within seven days if the
California Supreme Court renders an opinion. The panel
retains jurisdiction over further proceedings.

   IT IS SO ORDERED.
