Melissa J. Earll v. Ebay, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELISSA J. EARLL,
Plaintiff - Appellant,
v.
EBAY, INC.,
Defendant - Appellee.
No. 13-15134
D.C. No. 5:11-cv-00262-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.
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.
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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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

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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).
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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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