Donald Cullen, on behalf of himself and all others similarly situated v. Netflix, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD CULLEN, on behalf of himself
and all others similarly situated,
Plaintiff - Appellant,
v.
NETFLIX, INC.,
Defendant - Appellee.
No. 13-15092
D.C. No. 5:11-cv-01199-EJD
MEMORANDUM*
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.
FILED
APR 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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& 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

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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.
3

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