                                                                           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                            NOT FOR PUBLICATION                             APR 01 2015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


MELISSA J. EARLL,                                 No. 13-15134

              Plaintiff - Appellant,              D.C. No. 5:11-cv-00262-EJD

  v.
                                                  MEMORANDUM*
EBAY, 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.

       Earll appeals the district court’s dismissal of her Americans with Disabilities

Act (ADA) claim, 42 U.S.C. §§ 12181–12189, her California Disabled Persons Act

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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Civ. Code §§ 51–52. We have jurisdiction under 28 U.S.C. § 1291. We affirm the

dismissal of all three claims.

      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 term

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

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

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

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

See id. Therefore, in light of Weyer, Earll’s ADA claim fails as a matter of law.

See id.

      The Disabled Persons Act guarantees that “[i]ndividuals with disabilities

shall be entitled to full and equal access, as other members of the general public, to

accommodations, advantages, facilities, . . . places of public accommodation,

amusement, or resort, and other places to which the general public is invited,

subject only to the conditions and limitations established by law, or state or federal

regulation, and applicable alike to all persons.” Cal. Civ. Code § 54.1(a)(1).

California courts have construed section 54.1 as a means of enforcing separate,


                                           2
applicable accessibility standards, including ADA standards. See Coronado v.

Cobblestone Vill. Cmty. Rentals, 77 Cal. Rptr. 3d 883, 893–94 (Ct. App. 2008)

(citing Marsh v. Edwards, 134 Cal. Rptr. 844, 892 (Ct. App. 1976)), overruled on

other grounds by Munson v. Del Taco, Inc., 208 P.3d 623, 678 (Cal. 2009).1

Because the ADA does not apply to the eBay services at issue here, Earll failed to

allege violation of any separate, applicable accessibility standard. On this basis,

Earll’s Disabled Persons Act claim fails as a matter of law.

      The Unruh Civil Rights Act provides that “[a]ll persons . . . are free and

equal, and . . . are entitled to the full and equal accommodations, advantages,

facilities, privileges, or services in all business establishments of every kind

whatsoever.” Cal. Civ. Code § 51(b). “[T]o establish a violation of the Unruh Act

independent of a claim under the [ADA], [a plaintiff] must ‘plead and prove

intentional discrimination.’” Greater L.A. Agency on Deafness, Inc. v. Cable News

Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (quoting Munson, 208 P.3d at

627). eBay’s aural identification system applies to all eBay users, whether

hearing-impaired or not. Its failure to provide a deaf-accessible alternative to its


      1
         Although the Disabled Persons Act can be asserted as a freestanding claim
if based on an allegedly discriminatory policy, see Hankins v. El Torito Rests., Inc.,
74 Cal. Rptr. 2d 684, 691–93 (Ct. App. 1998), Earll failed to assert this argument
in her opening brief and therefore waived it. See Dream Games of Ariz., Inc. v. PC
Onsite, 561 F.3d 983, 994–95 (9th Cir. 2009).
                                           3
aural identification system does not amount to willful, affirmative misconduct

sufficient to constitute intentional discrimination under the Unruh Act. See Koebke

v. Bernardo Heights Country Club, 115 P.3d 1212, 1228 (Cal. 2005). Because

Earll has not alleged intentional discrimination, Earll’s Unruh Act claim fails as a

matter of law.

      AFFIRMED.




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