CORRECTED 2/10/14

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREATER LOS ANGELES AGENCY ON

DEAFNESS, INC.; DANIEL JACOB;

EDWARD KELLY; JENNIFER OLSON,

on behalf of themselves and all

others similarly situated,

Plaintiffs-Appellees,

v.

CABLE NEWS NETWORK, INC.,

incorrectly sued as Time Warner

Inc.,

Defendant-Appellant.

No. 12-15807

D.C. No.

3:11-cv-03458-

LB

ORDER

CERTIFYING

QUESTION TO

CALIFORNIA

SUPREME

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 PlaintiffsAppellees.

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”)1caption 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 Warner2as 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 defendantappellant 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 plaintiffsappellees 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.