Payne v. Office of The Commissioner of Baseball - Motion To Dismiss Opposition

Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 1 of 51
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Steve W. Berman (Pro Hac Vice)

Anthea Grivas (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite #3300
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
steve@hbsslaw.com
antheag@hbsslaw.com
Robert C. Hilliard (Pro Hac Vice)
Marion Reilly (Pro Hac Vice)
HILLIARD MUOZ GONZALES LLP
719 S. Shoreline Blvd., Suite #500
Corpus Christi, TX 78401
Telephone: (361) 882-1612
Facsimile: (361) 882-3015
bobh@hmglawfirm.com
marion@hmglawfirm.com
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Counsel for Plaintiffs Gail Payne,

Robert Gorman, and Stephanie Smith
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[Additional Counsel on Signature Page]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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GAIL PAYNE, ROBERT GORMAN, and

STEPHANIE SMITH, individually and on
behalf of all others similarly situated,
Plaintiffs,
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v.
OFFICE OF THE COMMISSIONER OF
BASEBALL (d/b/a MAJOR LEAGUE
BASEBALL), ROBERT D. MANFRED, JR., THE
ATLANTA BRAVES, THE MIAMI MARLINS,
THE NEW YORK METS, THE PHILADELPHIA
PHILLIES, THE WASHINGTON NATIONALS,
THE CHICAGO CUBS, THE CINCINNATI
REDS, THE MILWAUKEE BREWERS, THE
PITTSBURG PIRATES, THE ST. LOUIS
CARDINALS, THE ARIZONA
DIAMONDBACKS, THE COLORADO
010525-11 834358 V1
No. 4:15-CV-03229-YGR
PLAINTIFFS MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANTS
MOTION TO DISMISS PLAINTIFFS
FIRST AMENDED COMPLAINT
PURSUANT TO FEDERAL RULES OF
CIVIL PROCEDURE 12(B)(1), 12(B)(2),
12(B)(3) AND 12(B)(6)
Date:
Time:
Place:
Judge:
January 12, 2016

2:00 pm
Courtroom 1, Oakland
Hon. Yvonne Gonzalez Rogers
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ROCKIES, THE LOS ANGELES DODGERS,

THE SAN DIEGO PADRES, THE SAN
FRANCISCO GIANTS, THE BALTIMORE
ORIOLES, THE BOSTON RED SOX, THE NEW
YORK YANKEES, THE TAMPA BAY RAYS,
THE TORONTO BLUE JAYS, THE CHICAGO
WHITE SOX, THE CLEVELAND INDIANS,
THE DETROIT TIGERS, THE KANSAS CITY
ROYALS, THE MINNESOTA TWINS, THE
HOUSTON ASTROS, THE LOS ANGELES
ANGELS OF ANAHEIM, THE OAKLAND
ATHLETICS, THE SEATTLE MARINERS, AND
THE TEXAS RANGERS.
Defendants.
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010525-11 834358 V1
TABLE OF CONTENTS
Page
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I.
INTRODUCTION ...................................................................................................................1
II.
STATEMENT OF RELEVANT ALLEGATIONS .................................................................3
III.
PROCEDURAL HISTORY .....................................................................................................6
IV.
STANDARD OF REVIEW .....................................................................................................7
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4
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6
A.
Standard of Review for Federal Rule of Civil Procedure 12(b)(1) ...............................7
B.
C.
D.
Standard of Review for Federal Rule of Civil Procedure Rule

12(b)(6) ........................................................................................................................8
E.
Standard of Review for Federal Rule of Civil Procedure Rule 9(b) .............................8
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V.
ARGUMENT ...........................................................................................................................9
A.
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Plaintiffs Have Standing to Assert Their Claims for Negligence

(Count 1, FAC), Fraudulent Concealment (Count 2, FAC), Violation
of the UCL (Count 3, FAC), Violation of the CLRA (Count 4,
FAC), and Violation of 1668 (Count 5, FAC), and to Obtain the
Injunctive Relief Sought...............................................................................................9
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1.
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Plaintiffs have standing to assert their claims for negligence. ..........................9

a.
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Plaintiffs have adequately pled an Injury in Fact that

is (a) Concrete and Particularized and (b) Actual or
Imminent. .............................................................................................9
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(1)
Plaintiffs adequately allege concrete and

particularized injuries. ............................................................9
(2)
Plaintiffs adequately allege actual and

imminent injuries..................................................................12
(3)
Plaintiffs have established a direct causal

connection between this risk and MLBs
failure to protect. ....................................................................16
(4)
Plaintiffs have established there is a

substantial likelihood the relief sought will
redress the injury. ...................................................................17
(5)
Plaintiffs also believe the state of being at

risk, even without future injury, is sufficient
to confer standing. ..................................................................17
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-i010525-11 834358 V1
2.
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Plaintiffs have standing to assert their Fraudulent

Concealment claims, UCL claims, CLRA claims and cause
of action for violation of California Civil Code 1668. ..................................18
a.
Plaintiffs have adequately alleged injury in fact and

redressability. .....................................................................................18
b.
Redressability .....................................................................................19
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5
B.
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Plaintiffs Have Personal Jurisdiction Over Defendants and Venue Is

Proper in This District ................................................................................................19
1.
The Court has personal jurisdiction over the Out-of-State

Clubs. .............................................................................................................19
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a.
The applicable legal standard supports a finding that

this Court has personal jurisdiction. ...................................................19
b.
The Out-of-State Clubs continuously and

systematically contact California........................................................20
c.
The claims also arise out of Defendants contacts

with California ...................................................................................21
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2.
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Venue is proper in the Northern District of California

pursuant to 28 U.S.C. 1391(b)(3). ...............................................................22
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C.
Plaintiffs Properly Stated Their Negligence Claims (Count 1, FAC) .........................22
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1.
Plaintiffs properly pleaded Defendants duty. ................................................23
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a.
Defendants failed to comply with their duty to

provide sufficient screened seats. .......................................................23
b.
Plaintiffs cannot assume risks of which they are not

aware. .................................................................................................23
c.
Defendants cannot increase the risk of injuries by

creating distractions while claiming that their
customers assume the risk of injuries. ................................................25
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2.
Plaintiffs properly pleaded breach and causation............................................26
3.
Plaintiffs properly pleaded injury. ..................................................................27
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D.
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Plaintiffs Have Stated a Claim for Fraudulent Concealment (Count

2, FAC) ......................................................................................................................28
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1.
Plaintiffs have alleged Fraudulent Concealment with

particularity. ...................................................................................................28
2.
Plaintiffs allege Defendants concealed a material fact. ...................................30
3.
Plaintiffs allege Defendants had a duty to disclose. ........................................31
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4.
Plaintiffs allege an intent to defraud with respect to their

fraudulent concealment claims. ......................................................................32
5.
Plaintiffs allege reliance. ................................................................................32
2
3
E.
4
Plaintiffs State a Claim for Relief Under the Consumers Legal

Remedies Act (Count 4, FAC). ..................................................................................33
1.
Ball Game Tickets are Goods or Services that are Subject to

the CLRA. ......................................................................................................34
2.
The CLRA Governs the transactions at issue. ................................................36
3.
Plaintiffs allege that they relied on Defendants misconduct

and suffered injury. ........................................................................................37
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F.
Plaintiffs State a Claim for Relief Under Californias Unfair

Competition Law. (Count 3, FAC) ............................................................................38
G.
Plaintiffs are Entitled to Allege Facts Related to Defendants

Violations of Cal. Civ. Code 1668 (Count 5, FAC) .................................................38
H.
Smiths Personal Injury Claims Should Not Be Dismissed (Count 6,

FAC) ..........................................................................................................................40
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VI.
CONCLUSION......................................................................................................................40
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- iii 010525-11 834358 V1
TABLE OF AUTHORITIES
Page(s)
2
CASES
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21
22
Alford v. Pierno,
27 Cal. App. 3d 682 (1972) ........................................................................................................... 33
Allan v. Snow Summit, Inc.,
51 Cal. App. 4th 1358 (2002) ........................................................................................................ 40
Am. Online, Inc. v. Sup. Ct. of Alameda Cnty.,
90 Cal. App. 4th 1 (2001) .............................................................................................................. 33
Atl. Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. Tex.,
134 S. Ct. 568 (2013) .................................................................................................................... 22
B.C. v. Plumas Unified Sch. Dist.
192 F.3d 1260 (9th Cir. 1999) ....................................................................................................... 16
Baker v. New York Dept of Envl Conserv.,
2012 U.S. Dist. LEXIS 86845 (N.D.N.Y. June 22, 2012) ............................................................ 28
Benedek v. PLC Santa Monica,
104 Cal. App. 4th 1351 (2002) ...................................................................................................... 40
Bennett v. United States Cycling Fedn,
193 Cal. App. 3d 1485 (1987) ....................................................................................................... 24
Berry v. American Express,
147 Cal. App. 4th 224 (2007) .................................................................................................. 34, 35
BlyMagee v. California,
236 F.3d 1014 (9th Cir. 2001) ................................................................................................. 29, 30
In re Capacitors,
2015 U.S. Dist. LEXIS 68615(N.D. Cal. May 26, 2015) .............................................................. 33
Capri v. L.A. Fitness Ints, LLC,
136 Cal. App. 4th 1078 (2006) ...................................................................................................... 40
23
24
25
26
27
Carrico v. City & Cnty. of San Francisco,

656 F.3d 1002 (9th Cir. 2011) ................................................................................................. 15, 16
Chamberlan v. Ford,
369 F. Supp. 2d 1138 (N.D. Cal. 2005) ......................................................................................... 36
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) .............................................................................................................. 7, 14, 15
28
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3
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5
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Clapper v. Amnesty Intl, USA,

133 S. Ct. 1138 (2013) .................................................................................................................. 15
Collins v. Emachines, Inc.,
202 Cal. App. 4th 249 (2011) ........................................................................................................ 38
Cornelius v. Los Angeles Cnty. Etc. Auth.,
49 Cal. App. 4th 1761 (1996) ........................................................................................................ 16
Doe v. Chao,
540 U.S. 614 (2004) ...................................................................................................................... 17
7
8
9
10
11
Doe v. United States,

419 F.3d 1058 (9th Cir. 2005) ................................................................................................... 8, 40
Dole Food Co., Inc. v. Watts,
303 F.3d 1104 (9th Cir. 2002) ..................................................................................... 19, 20, 21, 22
Eminence Capital, L.L.C. v. Aspeon, Inc.,
316 F.3d 1048 (9th Cir. 2003) ......................................................................................................... 8
12
13
14
15
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Falk v. GMC,
496 F. Supp. 2d 1088 (N.D. Cal. 2007) .............................................................................................. 30
Fed. Election Commn v. Akins,
524 U.S. 11 (1998) .......................................................................................................................... 9
Ferrell v. S. Nev. Off-Road Enthusiasts, Ltd.,
147 Cal. App. 3d 309 (1983) ......................................................................................................... 24
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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000) ........................................................................................................................ 7
Gardner v. Downtown Porsche Audi,
180 Cal. App. 3d 713 (1986) ......................................................................................................... 39
Gilligan v. Jamco Dev. Corp.,
108 F.3d 246 (9th Cir. 1997) ........................................................................................................... 8
Gladstone Realtors v. Village of Bellwood,
441 U.S. 91 (1979) .......................................................................................................................... 7
Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co.,
284 F.3d 1114 (9th Cir. 2002) ......................................................................................................... 7
Goodyear Dunlop Tires Operations, S.A. v. Brown,
131 S. Ct. 2846 (2011) .................................................................................................................. 20
Health Net of Ca., Inc. v. Dept of Health Servs.,
113 Cal. App. 4th 224 (2003) ........................................................................................................ 39
-v010525-11 834358 V1
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2
3
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5
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Herron v. Best Buy Co., Inc.,

924 F. Supp. 2d 1161 (E.D. Cal. 2013) ......................................................................................... 38
Jewel v. Natl Sec. Agency,
673 F.3d 902 (9th Cir. 2011) ..................................................................................................... 9, 12
Kearns v. Ford Motor Co.,
567 F.3d 1120 (9th Cir. 2009) ................................................................................................... 8, 29
Keilholtz v. Super. Fireplace Co.,
2009 U.S. Dist. LEXIS 30732 (N.D. Cal. Mar. 30, 2009) ............................................................ 37
7
8
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Kohler v. Leslie Hindman, Inc.,

80 F.3d 1181 (7th Cir. 1996) ......................................................................................................... 20
Ladore v. Sony Computer Entmt Am., LLC,
75 F. Supp. 3d 1065, 1073 (N.D. Cal. 2014) ................................................................................. 35
Lowe v. Cal. League of Proffl Baseball,
56 Cal. App. 4th 112 (1997) .................................................................................................... 25, 26
12
13
14
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16
Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................................................................................... passim
Lund v. Ballys Aerobic Plus, Inc.,
78 Cal. App. 4th 733 (2000) .......................................................................................................... 40
McAdams v. Monier, Inc.,
182 Cal. App. 4th 174 (2010) ........................................................................................................ 37
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26
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Murphy v. Schneider Natl, Inc.,

362 F.3d 1133 (9th Cir. 2004) ......................................................................................................... 8
Murray v. Motorola, Inc.,
2011 D.C. Super. LEXIS 3 (D.C. Super. July 14, 2011) ............................................................... 37
In re NVIDIA GPU Litig.,
2009 U.S. Dist. LEXIS 108500 (N.D. Cal. Nov. 19, 2009) .......................................................... 37
OShea v. Littleton,
414 U.S. 488 (1974) ...................................................................................................................... 13
Olsen v. Breeze,
48 Cal. App. 4th 608 (1996) .......................................................................................................... 19
Paduano v. Am. Honda Motor Co., Inc.,
169 Cal. App. 4th 1453 (2009) ...................................................................................................... 38
Pebble Beach Co. v. Caddy,
453 F.3d 1151 (9th Cir. 2006) ....................................................................................................... 19
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2
3
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Pickern v. Holiday Qual. Foods,

293 F.3d 1133 (9th Cir. 2002) ....................................................................................................... 28
Piedmont Label Co. v. Sun Garden Packing Co.,
598 F.2d 491 (9th Cir. 1979) ........................................................................................................... 8
Quinn v. Recreation Park Assn,
3 Cal. 2d 725 (1935) ...................................................................................................................... 27
Randas v. YMCA of Metro. L.A.,
17 Cal. App. 4th 158 (1993) .......................................................................................................... 40
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8
9
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Reniger v. Hyundai Motor Am.,

2015 U.S. Dist. LEXIS 109068 (N.D. Cal. Aug. 18, 2015) .................................................. 7, 8, 29
In re Rubber Chemicals Antitrust Litig.,
504 F. Supp. 2d 777 (N.D. Cal. 2007) ........................................................................................... 33
Schwarzenegger v. Fred Martin Motor Co.,
374 F.3d 797 (9th Cir. 2004) ......................................................................................................... 19
12
13
14
15
16
Senne v. Kan. City Royals Baseball Corp.,

2015 U.S. Dist. LEXIS 6617 (N.D. Cal. May 20, 2015) ......................................................... 20, 21
In re Sony Gaming Networks & Customer Data Sec. Breach Litigation,
903 F. Supp. 2d 942 (S.D. Cal. 2012) ........................................................................................... 35
Swartz v. KPMG LLP,
476 F.3d 756 (9th Cir. 2007) ......................................................................................................... 29
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19
20
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22
23
24
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26
27
In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices & Prods.
Liab. Litig.,
754 F. Supp. 2d 1145 (C.D. Cal. Nov. 30, 2010) .......................................................................... 31
Trujillo v. Ametek, Inc.,
2015 U.S. Dist. LEXIS 156803 (S.D. Cal. Nov. 18, 2015) ........................................................... 27
United States v. SCRAP,
412 U.S. 669 (1973) ...................................................................................................................... 10
Waldrup v. Countrywide Fin. Corp.,
2015 U.S. Dist. LEXIS (C.D. Cal. Jan. 5, 2015) ........................................................................... 33
Warth v. Seldin,
422 U.S. 490 (1975) ........................................................................................................................ 9
Westlye v. Look Sports, Inc.,
17 Cal. App. 4th 1715 (1993) .................................................................................................. 24, 40
28
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Williamson v. McAfee, Inc.,

2014 U.S. Dist. LEXIS 117565 (N.D. Cal. Aug. 22, 2014) .......................................................... 35
STATUTES
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4
28 U.S.C. 1391 ................................................................................................................................. 22
Cal. Civ. Code 1668 ........................................................................................................................... 9
Cal. Civ. Code 1750, et seq. ............................................................................................................ 33
Cal. Civ. Code 1760 .......................................................................................................................... 33
Cal. Civ. Code 1761(b) ..................................................................................................................... 35
Cal. Civ. Code 1761(e) ..................................................................................................................... 36
10
Cal. Civ. Code 1770(a) ..................................................................................................................... 36
11
OTHER AUTHORITIES
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13
Fed. R. Civ. P. 8(e) .............................................................................................................................. 39

Fed. R. Civ. P. 9(b) ....................................................................................................................... passim
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I.
INTRODUCTION
Defendants stated, in the first sentence of the introduction of their original Memorandum in
support of their Motion to Dismiss (MTD 1), that for as long as baseball has been played, foul balls
and errant or broken bats have occasionally entered the stands. MTD 1, p. 1. In their current
Memorandum (MTD 2), Defendants call the First Amended Complaint (FAC), which details
Plaintiffs well-founded health and safety concerns, sensationalistic rhetoric and characterize its true
and accurate photos of spectators injuries as inflammatory. MTD 2, p. 1. These statements, which
minimize the risk posed by errant balls and bats to baseball spectators in general, and to the Plaintiffs
specifically, are what has brought us here before this Court. Defendants have minimized the real threat
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and risk from errant balls and bats, and this is why spectators are being badly injured day after day.
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There is no basis to dismiss Plaintiffs claims against Defendants, which are grounded in law and
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backed by strong health and safety concerns. For the reasons stated herein, Plaintiffs respectfully
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request that the Court deny Defendants Motion to Dismiss. Defendants seek dismissal of Plaintiffs
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detailed First Amended Complaint on several grounds, each meritless.
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First, Defendants argue that Plaintiffs do not have standing. MTD 2, pp. 9-14. Plaintiff Gail
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Payne alleges she holds season tickets in the Danger Zone, is entirely exposed to the danger posed by
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errant balls and bats, fears for her and her familys safety, and is at imminent risk of injury. She has
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submitted detailed evidence that her seats are prone to foul balls, that netting at Oakland Coliseum is
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inadequate and that Defendants acts and omissions placed her at risk. Plaintiffs Robert Gorman and
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Stephanie Smith have already been hit by foul balls, have submitted details regarding their injuries and
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allege they have been harmed by Defendants acts and omissions. Defendants maintain that these
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Plaintiffs injuries do not change the analysis, but their previous statements concede otherwise.
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Plaintiffs have adequately demonstrated standing.
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Second, Defendants argue Plaintiffs have failed to establish this Court has personal jurisdiction
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over the Out-of-State clubs. MTD 2, pp. 16-17. Plaintiffs have made the requisite showing of a basis
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to survive a Motion to Dismiss via allegations regarding the teams longstanding, regular and
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continuous business contacts in this district, including the fact that the Out-of-State Clubs receive
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PLS. MEMORANDUM OF POINTS AND
AUTHORITIES IN OPP. TO MOT. TO DISMISS
Case No.: 4:15-CV-03229 YGR
010525-11 834358 V1
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significant financial benefits from games played in California, pay taxes in California, and contract
with California residents through ticket-back contracts of adhesion.
Third, Defendants argue Plaintiffs have failed to establish that this district is the proper venue
for certain Defendants. MTD 2, pp. 18-19. Plaintiffs believe they have demonstrated venue is proper,
based on these Defendants contacts in this district.
Fourth, Defendants argue that Plaintiffs, regarding their Negligence claims, fail to state any
claim upon which relief may be granted. MTD 2, pp. 20-27. Defendants rely on an outdated legal rule
that is neither applicable to the specific facts or theories of this case nor based on the current state of
baseball. Defendants wholly fail to acknowledge a line of modern cases indicating Defendants have a
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duty under and could be negligent under the well-accepted distraction theory of liability. Plaintiffs
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believe they have adequately alleged Duty, Breach, Causation and Injury, contrary to Defendants
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assertions. These cases also indicate it is a factual issue not appropriate for resolution at the Motion to
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Dismiss stage.
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Fifth, Defendants argue the Fraudulent Concealment claims fail to state any claim upon which
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relief may be granted. MTD 2, pp. 27-33. They assert that Plaintiffs fail to allege that Defendants
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concealed a material fact, fail to allege that Defendants had a duty to disclose, fail to allege intent to
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defraud, fail to allege reliance and fail to allege any damages. Plaintiffs wholly disagree and believe
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they have fulfilled these requirements.
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Sixth, Defendants argue that Plaintiffs CLRA claims should be dismissed because tickets are
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not goods or services, Plaintiffs Gorman and Smith did not purchase tickets from Defendants, and
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Plaintiffs failed to allege reliance or injury. MTD 2, pp. 33-37. Plaintiffs believe the legislative intent
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of the CLRA, Ninth Circuit precedent and Defendants description of baseball games as entertainment
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product supports the view that tickets, as well as MLB games, are goods or services. Plaintiffs have
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also adequately alleged that Plaintiffs Gorman and Smith purchased tickets from Defendants, relied on
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Defendants statements and omissions and were injured as a result.
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27
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Seventh, Defendants argue Plaintiffs UCL claims are also entirely derivative of their other
claims, and thus fall along with them. MTD 2, pg. 37. Plaintiffs disagree, and believe their UCL
claims also support their claims under the CLRA.
010525-11 834358 V1
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Eighth, Defendants argue that Plaintiffs cannot state a cause of action under California Civil
Code 1668. MTD 2, pp. 37-38. Defendants do not cite any cases in support of this proposition and
the factual allegations contained in this section of Plaintiffs FAC are clearly relevant to rebut any
defense Defendants have raised and may raise to Plaintiffs claims for fraud and negligence, as well as
their consumer law claims.
Ninth, Defendants argue Plaintiffs cannot state a cause of action for Ms. Smiths personal
injuries. MTD 2, pp. 39-40. Plaintiffs believe they have adequately established how and why Ms.
Smith has a cause of action to recover for the personal injuries caused by the negligence of Defendants.
9
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II.
STATEMENT OF RELEVANT ALLEGATIONS
Plaintiffs have sued The Office of the Commissioner of Baseball (d/b/a Major League
11
Baseball), Commissioner Rob Manfred and the thirty major league teams, alleging Plaintiffs have been
12
harmed by the Defendants negligence, misrepresentations and omissions. Plaintiffs and the putative
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class sit in the Danger Zone, the area at Major League ballparks, between the foul poles, where, due
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to lack of protective netting, spectators are exposed to errant balls and bats, and are at risk of injury.
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Plaintiff Gail Payne lives in Oakland, in Alameda County, California, and has been a devout
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fan of the Oakland As for nearly 50 years. FAC, 17. She holds season tickets in section 211, a
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section less expensive than the sections covered by protective netting. At her seats in an exposed
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section along the first base line, she fears for her and her husbands safety and particularly for her
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daughter. Id. At Oakland Coliseum, protective netting only extends behind the backstop. Id. Because
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of this, foul balls have shot into the stands around her more times than she can count. Id. Ms. Payne
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estimates that at every game, at least three or four balls enter her section alone, and she is constantly
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ducking and weaving to avoid getting hit. Id. In addition, due to the fact that at Oakland Coliseum
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there are many distractions, Ms. Payne believes she and other fans are at increased risk of injury. Id.
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Plaintiff Robert Gorman lives in South Carolina. Hes been a baseball fan since childhood, and
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the FAC indicates that he acquired tickets directly from the Charlotte Knights (FAC, 350) via
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purchase of a Charlotte Knights half season pass (id., 19). The Charlotte Knights is a minor league
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team operated under the umbrella of the Major Leagues, and as noted in the FAC, Major League
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010525-11 834358 V1
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Baseball includes the minor leagues and therefore his ticket was purchased from a Defendant.1 Mr.
Gormans seats are in section 114, between third base and home plate, in row V, 22 rows back on the
concourse. Id. His seats are exposed. Id. Since he started attending games, Mr. Gorman has been hit
by a foul ball, witnessed his wife get hit at a college game, and has witnessed numerous other incidents
detailed in the FAC. He believes he and other spectators are at increased risk due to the many
distractions present in the ballpark. Id., 20-22.
Plaintiff Stephanie Smith is a temporary resident of California and permanent resident of
Washington State. FAC, 24. On June 7, 2015, she was attending a Los Angeles Dodgers game with
her family and was seated on the third base line, on the field level, when she was struck by a line-drive
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foul ball. Id. The ball broke her ribs. Id. She suffered a 10-15% collapsed lung and experiences
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constant pain in her ribs. Id. The Dodgers claimed they were not liable for her injuries, and as a result,
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she has incurred significant personal medical expenses. Id.
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Plaintiffs also allege Defendants fraudulently withheld certain relevant facts from Plaintiffs,
14
including the fact that, due to the location of the Danger Zone, and the speed at which balls and bats
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fly into the stands, injury cannot be avoided by paying attention. This lack of understanding and
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appreciation of the risks is at the heart of Plaintiffs case people dont understand the true risk, and
17
that is why they keep bringing their families to the ballpark, and keep suffering injury even, in many
18
cases, when they are paying attention.2 Plaintiffs claim Defendants actively misrepresented that the
19
Danger Zone is safe and family-friendly, through certain specific statements and marketing efforts
20
which are outlined in the FAC, along with source citations. See, e.g., FAC, 286-296.
21
Plaintiffs also allege Defendants withheld the fact that players, since at least 2007, have been
22
asking the teams, MLB and the Commissioner for protective netting from foul pole to foul pole (the
23
24
25
26
27
28
Major League Baseball also includes the minor leagues the organization also oversees
minor-league baseball leagues, which comprise about 240 teams affiliated with the major-league
clubs. Teams are governed by Major League Baseball. FAC, 253. Plaintiffs believe they have
made it clear that Mr. Gorman purchased tickets from a Defendant (the Office of the Commissioner
d/b/a MLB, which includes the affiliated minor league teams), contrary to the allegations in the
Motion to Dismiss. Dkt. 52, 6.
2
Plaintiffs FAC details why the Danger Zone is particularly dangerous and why, due to the
speed and force of a flying baseball, injury cannot be avoided by paying attention. FAC 80-85, 87.
This is why Plaintiffs believe that the Defendants characterization Plaintiffs bring this action to
take that choice away from millions of other baseball fans misses the point. MTD 2, p.1.
010525-11 834358 V1
-4-
exact area defined in the FAC as the Danger Zone.). FAC, 251. Plaintiffs allege Defendants were
well aware of the risk of severe injury and provide several examples of how and why Defendants
knowledge was superior to Plaintiffs. Id., 260. This includes the fact that scholarly articles, not
widely distributed to the public, acknowledged the risk, Defendants have been sued previously by
injured spectators, Defendants regularly receive reports of ballpark injuries for insurance purposes,
Defendants have access to ballpark foul-ball logs, Defendants previously undertook a study of
shattered bats and Defendants were aware of players netting demands expressed via collective
bargaining negotiations. Id., 261-266.
Plaintiffs additionally allege that Defendants have greatly increased the risk by introducing a
10
number of unnecessary visual distractions at ballparks, by calling for the use of mobile devices while
11
attending games (and specifically targeting these to children, despite knowing and acknowledging its
12
awareness that children have shorter attention spans) and by increasing the pace of play via the pitch
13
count. Id., 282, 297. Plaintiffs also allege violation of California consumer laws. Id., 338-354.
14
Plaintiffs allege that MLB has admitted that it has the authority to enact a netting change, via an
15
edict or other action. Id., 255. Plaintiffs also cite many examples of other areas in which Defendants
16
have acknowledged their authority and responsibility regarding spectator health and safety and have
17
promulgated league wide health and safety rules. These include mandatory check points for fans,
18
temporary screens during batting practice, rules prohibiting players from tossing baseballs far into the
19
stands and the barring of tobacco products. Id., 254. Perhaps the most powerful admission of duty is
20
the fact that MLB, this week, decided to expand netting.3
21
Plaintiffs seek injunctive relief to implement a simple, straightforward solution extend the
22
nets to protect the most dangerous areas of the ballpark, where serious injuries and near-misses occur
23
day after day. Plaintiffs have alleged that other professional sports in the United States have been
24
responsive to spectator health and safety concerns and have acted swiftly to protect spectators. Id.,
25
26
27
28
Plaintiffs ask the Court to take judicial notice of MLBs recommendation, announced December
8, 2015, that netting be extended a radius of 70 feet surrounding home plate. MLB press release
MLB issues fan safety recommendations Fan safety initiative leads to new netting
recommendations for next year, available at http://m.mlb.com/news/article/159233072. See
Plaintiffs Motion for Judicial Notice, Exhibit 2.
010525-11 834358 V1
-5-
272. Plaintiffs allege that protective netting is common in other countries, including Japan, where
baseball is extraordinarily popular. Id., 273. Plaintiffs allege that precautions could have been taken
with relative ease, given MLBs resources, the presence of netting in other areas and MLBs familiarity
with netting technology. Id., 267. Plaintiffs allege that the harm to them, and to the putative class,
greatly outweighs any social value of keeping the Danger Zone seats exposed. Id.
In just the period between the filing of Plaintiffs Class Action Complaint on July 13, 2015, and
the filing of Plaintiffs FAC on October 23, 2015, there were nearly 90 serious injuries or serious
misses at MLB games. FAC, 156-244. Plaintiffs believe it is Defendants inaction and not
Plaintiffs well-founded fears which are contrary to common sense. MTD 2, p.1. Defendants
10
are correct that Plaintiffs are asking this Court to order netting Plaintiffs believe it will protect them
11
and save a lot of people a great amount of unnecessary pain and suffering, and Defendants have thus
12
far failed to provide adequate measures on their own.
13
III.
PROCEDURAL HISTORY
14
Plaintiffs Original Complaint was filed on July 13, 2015, on behalf of Ms. Payne and a
15
putative nationwide class (Class Action Complaint, July 13, 2015, ECF No. 1).4 Plaintiff elected to
16
amend the Class Action Complaint to add two additional class representatives who wished to join the
17
lawsuit, additional Defendants, two additional claims and numerous additional injuries.5 Plaintiffs
18
provided notice of this intent in an October 7, 2015 email to Defendants counsel, noting that, because
19
amending would moot the original Motion to Dismiss, the parties should consider jointly filing a
20
briefing schedule for a renewed Motion to Dismiss to conserve the parties and judicial resources. The
21
Defendants agreed.6 The FAC was filed October 23, 2015.
22
23
4
24
25
26
27
28
ECF No. 15 (Refiled Class Action Complaint); ECF No. 16, Notice of Errata correcting one
occurrence of a misspelled name. (Corrected Class Action Complaint.)
5
The FAC added Mr. Gorman and Ms. Smith as Plaintiffs, added the thirty Major League Teams
as Defendants, added two additional causes of action (for violation of California Civil Code 1668
and for Ms. Smiths personal injury claim) and an additional approximately thirty-seven pages of
discussion of specific spectator injuries, including details of 89 serious injuries or near-misses at
Major League Baseball games since July 13, 2015.
6
Joint Stipulation and [Proposed] Order Regarding Deadline to File Response in Opp. to Defs.
Mot. to Dismiss, Oct. 15, 2015, ECF No. 39.
010525-11 834358 V1
-6-
1
2
IV.
A.
STANDARD OF REVIEW
Standard of Review for Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss under FRCP 12(b)(1) challenges the Courts subject-matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). As Article III standing relates to the Courts subject-matter jurisdiction, it is
properly raised on a Rule 12(b)(1) motion, and the party asserting jurisdiction bears the burden of
proving its existence. Reniger v. Hyundai Motor Am., 2015 U.S. Dist. LEXIS 109068, *at 6 (N.D.
Cal. Aug. 18, 2015) (citing Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121-1122 (9th
Cir. 2010)). Although the burden is on the Plaintiff, general factual allegations of injury resulting
from the defendants conduct may suffice at the pleading stage. Lujan v. Defs. of Wildlife, 504 U.S.
10
555, 561 (1992) (quoting Natl Wildlife Fedn, 497 U.S. 871, 889 (1990) ( general factual
11
allegations of injury resulting from the defendants conduct may suffice, for on a motion to dismiss we
12
presume[e] that general allegations embrace those specific facts that are necessary to support the
13
claim). Courts must accept as true all material allegations of the complaint and construe the
14
complaint in favor of the complaining party. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91,
15
109 (1979) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).
16
To satisfy Article III, the plaintiff must show that she personally suffered some actual or
17
threatened injury as a result of the putatively illegal conduct of the defendant. Gladstone, 441 U.S. at
18
100. A plaintiff must show (1) she has suffered an injury in fact that is: (a) concrete and
19
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
20
traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely
21
speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v.
22
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Where, as here, injunctive relief is
23
sought, she must demonstrate she is realistically threatened by a repetition of her experience. City of
24
Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).
25
B.
26
27
28

A plaintiff is generally required only to make out a prima facie showing of personal jurisdiction
to overcome a 12(b)(2) motion. See Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co.,
284 F.3d 1114, 1119 (9th Cir. 2002).
010525-11 834358 V1
-7-
C.
FRCP 12(b)(3) provides for dismissal due to improper venue. Once venue is challenged, the
plaintiff has the burden of proving venue is proper. See Piedmont Label Co. v. Sun Garden Packing
Co., 598 F.2d 491, 496 (9th Cir. 1979). If there are contested factual issues, the court is obligated to
draw all reasonable inferences and resolve the factual conflicts in favor of the non-moving party or
hold a pre-trial evidentiary hearing on the disputed facts. Murphy v. Schneider Natl, Inc., 362 F.3d
1133, 1138-39 (9th Cir. 2004).
D.
Standard of Review for Federal Rule of Civil Procedure Rule 12(b)(6)

FRCP 12(b)(6) Motions to Dismiss for failure to state a claim are viewed with disfavor; there is
10
a powerful presumption against rejecting pleadings and dismissals are rarely granted. Gilligan v.
11
Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). The court must construe the complaint in the
12
light most favorable to the plaintiff, taking all her allegations as true and drawing all reasonable
13
inferences from the complaint in her favor. Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).
14
E.
15
Defendants argue Plaintiffs have not pled their Fraudulent Concealment (Count 2, FAC) or CLRA
16
(Count 4, FAC) claims with particularity. MTD 2, pp. 27, 36. A party must state with particularity the
17
circumstances constituting fraud or mistake. Fed. R. Civ. P. 9(b). The circumstances constituting the
18
alleged fraud must be specific enough to give defendants notice of the particular misconduct ... so
19
that they can defend against the charge and not just deny that they have done anything wrong. Kearns
20
v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (citing BlyMagee v. California, 236 F.3d
21
1014, 1019 (9th Cir. 2001)). A pleading must identify the who, what, when, where, and how of the
22
misconduct charged, as well as what is false or misleading about [the purportedly fraudulent]
23
statement, and why it is false. Reniger, 2015 U.S. Dist. LEXIS 109068, at *7 (citing Cafasso ex rel.
24
United States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal quotation
25
marks and citations omitted) (alteration in original). Malice, intent, knowledge, and other conditions of
26
a persons mind may be alleged generally. Fed. R. Civ. P. 9(b).
27
28
Standard of Review for Federal Rule of Civil Procedure Rule 9(b)
Leave to amend is freely granted where a heightened pleading standard is at play. See, e.g.,
Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (leave to amend
010525-11 834358 V1
-8-
freely granted under Rule 15, especially in the context of the fraud heightened pleading standard,
where drafting a cognizable complaint can be a matter of trial and error).
3
4
5
V.
A.
ARGUMENT
Plaintiffs Have Standing to Assert Their Claims for Negligence (Count 1, FAC),
Fraudulent Concealment (Count 2, FAC), Violation of the UCL (Count 3, FAC),
Violation of the CLRA (Count 4, FAC), and Violation of 1668 (Count 5, FAC), and to
Obtain the Injunctive Relief Sought
6
Defendants argue that Plaintiffs have failed to allege facts establishing their standing under
7
Article III to assert their claims for negligence, fraudulent concealment, and violations of the UCL,
8
CLRA and 1668. MTD 2, pp. 9-14. Plaintiffs have adequately alleged facts that establish standing
9
under Article III to seek injunctive relief for their claims. To establish Article III standing, Plaintiffs
10
must allege (1) injury in fact, (2) a causal connection between the injury and the conduct
11
complained of and (3) that the injury will likely be redressed by a favorable decision. Lujan, 504
12
U.S. at 560-561. The injury must be (a) concrete and particularized and (b) actual and imminent,
13
not conjectural or hypothetical. Lujan, 504 U.S. at 560 & n.1. Plaintiffs have fulfilled these
14
requirements, and accordingly ask the Court to reject Defendants Motion to Dismiss.
15
1.
Plaintiffs have standing to assert their claims for negligence.
16
17
a.
Plaintiffs have adequately pled an Injury in Fact that is (a) Concrete and
Particularized and (b) Actual or Imminent.
18
(1)
19
Plaintiffs adequately allege concrete and particularized injuries.
Defendants argue Plaintiffs fail to adequately allege a concrete and particularized injury that is
20
imminent. MTD 2, p. 9. Lujans concrete and particularized injury requirement means that the
21
injury must affect the plaintiff in a personal and individual way. Lujan, 504 U.S. at 560 n.1; Warth
22
v. Seldin, 422 U.S. 490, 501 ([T]he plaintiff still must allege a distinct and palpable injury to himself,
23
even if it is an injury shared by a large class of other possible litigants.). The fact that a harm is
24
widely shared does not necessarily render it a generalized grievance. Jewel v. Natl Sec. Agency, 673
25
F.3d 902, 909 (9th Cir. 2011). Where a harm is concrete, though widely shared, the Court has found
26
injury in fact. Fed. Election Commn v. Akins, 524 U.S. 11, 24 (1998). In this case, Plaintiffs all
27
allege that they personally have been harmed by Defendants actions and inactions and specifically
28
detail this harm, meeting the concrete and particularized injury requirement. While strong public
010525-11 834358 V1
-9-
policy concerns are present in this case, this is not a case of a concerned bystander who is not
themselves at risk. United States v. SCRAP, 412 U.S. 669, 687 (1973).
Ms. Payne has alleged the following personal impacts: she is a season ticket holder of Oakland
As tickets, whose seats in section 211 along the first base line at Oakland Coliseum are entirely
exposed, with no protection of any sort from errant balls or bats. FAC, 17. She has witnessed foul
balls shooting into the stands more times than she can count. Id. At each game, she estimates that at
least three or four fouls balls enter her section. Id. She takes evasive action, constantly, as a result. Id.
For example, she has ducked to avoid a foul ball flying her way. Id. She is at imminent risk of
injury and fears for her and her husbands safety and particularly for her daughter. Id.
10
She has also alleged that she is subject to the numerous intentional distractions Defendants
11
have placed at Oakland Coliseum and has provided examples of these distractions. FAC, 17. She
12
alleges that she believes these distractions place her and other fans at increased and imminent risk of
13
injury. Id.
14
Ms. Payne has also alleged she looked to the MLB for guidance (spectators, including the
15
Plaintiffs have looked to Defendants for guidance on spectator safety issues.). FAC, 313. She
16
alleges MLB wholly misrepresented the true nature of the risk, which was not open and obvious to
17
Plaintiffs. Id., 318. She has alleged Defendants breached the duty of due care owed to her (id.,
18
328) and has detailed what resulted: she is at an unreasonable risk due to this breach (id., 330);
19
justifiably relied on MLBs statements to her detriment (see, e.g., id., 336) and MLBs practices
20
induced a false belief (id., 336) and deceived her (id., 342). The reliance induced her to continue to
21
purchase tickets for and continue to attend MLB games. Id., 344.
22
Mr. Gorman has alleged the following personal impacts: He is a season ticket holder of
23
Charlotte Knights tickets, whose seats in section 114 along the third base line at BB&T ballpark are
24
entirely exposed, with no protection of any sort from errant balls or bats. FAC, 19. He has seen
25
several balls fly into or near his section this season, and has witnessed several injuries and near-misses.
26
Id., 20. These include (1) a foul ball that hit a woman sitting just ten rows in front of him; (2) a ball
27
that flew past him and hit the food kiosk; (3) a ball that hit a woman in the head; (4) a bat that flew into
28
the first base stands; (5) a pitcher overthrow a ball to first base, which hit a seat in the first base stands;
010525-11 834358 V1
- 10 -
and (6) countless foul balls entering all areas of the ballpark, including entering the concourse and
hitting the food kiosk, where people purchase food. Id. He was also recently at a game where the
person sitting right next to him almost had his head taken off by a line drive foul. He has alleged he
[is] at imminent risk of injury. Id., 22.
Mr. Gorman has alleged that he is subject to the numerous intentional distractions Defendants
have placed at BB&T ballpark and has provided concrete examples, as well as a photograph, regarding
these distraction s and how they impact him. Id. He has specifically alleged that these distractions
place him at imminent risk of injury. Id. Mr. Gorman has also alleged he looked to the MLB for
guidance (spectators, including the Plaintiffs have looked to Defendants for guidance on spectator
10
safety issues.). Id., 313. He also alleges that MLB wholly misrepresented the true nature of the
11
risk, which was not open and obvious to Plaintiffs. Id., 318. He alleges that Defendants breached
12
the duty of due care owed to him (id., 328) and has detailed what resulted: he is at an unreasonable
13
risk due to this breach (id., 330); justifiably relied on MLBs statements to his detriment (see ,e.g.,
14
id., 336) and that MLBs practices induced a false belief (id.) and deceived him (id., 342). The
15
reliance induced him to continue to purchase tickets for and continue to attend MLB games. Id., 344.
16
Ms. Smith has alleged the following personal impacts: She has alleged that she attended the
17
June 7, 2015 Los Angeles Dodgers game. FAC, 24. She was injured at that game specifically, she
18
was hit in the stomach by a line drive foul ball. Id. She believes the ball broke her ribs, and she
19
suffered a 10-15% collapsed lung and experiences constant pain in her ribs. Id. She also alleges that
20
she personally was denied assistance from Major League Baseballs Los Angeles Dodgers
21
organization. Id., 24. As a result of these actions, she personally incurred several thousand dollars in
22
medical expenses. Id. Ms. Smith has also made detailed and specific allegations regarding the lack of
23
adequate netting and screened seats at Dodgers stadium, along with an accompanying photograph (see,
24
e.g., FAC, 69: At Dodgers stadium, netting is also relatively minimal and does not adequately
25
protect fans sitting between the foul poles.).
26
27
28
She also alleges she looked to the MLB for guidance (spectators, including the Plaintiffs
have looked to Defendants for guidance on spectator safety issues.). Id., 313. She alleges MLB
wholly misrepresented the true nature of the risk, which was not open and obvious to Plaintiffs. Id.
010525-11 834358 V1
- 11 -
She has alleged that Defendants breached the duty of due care owed to her (id., 328) and has detailed
what resulted: she is at an unreasonable risk due to this breach (id., 330); justifiably relied on MLBs
statements to her detriment (see, e.g., id., 336) and that MLBs practices induced a false belief (id.)
and deceived her (id., 342). The reliance induced her to continue to purchase tickets for and continue
to attend MLB games. Id., 344.
Ms. Smith acquired her tickets via a third party site. Defendants essentially concede that
holding a ticket confers a contractual relationship between Ms. Smith and Defendants, via the language
used on Plaintiff Smiths ticket: By using this ticket and entering Dodger Stadium, the holder
assumes all risk and danger The holder further agrees that Los Angeles Dodgers LLC, Dodger
10
Tickets LLC, the participating Clubs, Tickets.com, and their respective agents and players are not
11
liable for any injuries from such causes. MTD 2, p.7, see also pp. 20-21. While the FAC does not
12
provide detail regarding when Ms. Smith who was just injured and suffers lasting effects will return
13
to the ballpark, the FAC alleges she has been harmed both via her injuries suffered at the Dodgers
14
game on June 7, 2015, and by being placed at unreasonable risk due to Defendants breaches and
15
misconduct. See, e.g., FAC, 330-331, 342.
16
Based on Plaintiffs detailed allegations of personal harm, Plaintiffs believe they have
17
sufficiently met the concrete and particularized requirement and have alleged such a personal stake
18
in the outcome of the controversy as to warrant invocation of federal-court jurisdiction. Jewel, 673
19
F.3d at 909 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).
20
21
(2)
Plaintiffs adequately allege actual and imminent injuries.
Defendants argue Plaintiffs fail to adequately allege a concrete and particularized injury that is
22
imminent. MTD 2, pp. 9-12. To establish Article III standing, an injury must be actual and
23
imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560 & n.1.
24
Both Mr. Gorman and Ms. Smith have been injured by foul balls. Mr. Gorman alleges he was
25
struck by a foul ball at a Charlotte Knights game. FAC, 21. Plaintiff Stephanie Smith has alleged
26
that she attended and was injured this season at the June 7, 2015 L.A. Dodgers game. Id., 24.
27
Defendants contend that Plaintiffs new allegations that Plaintiffs Gorman and Smith have been struck
28
by foul balls in the past do nothing to change the analysis. MTD 2, p.10. Plaintiffs disagree. While
010525-11 834358 V1
- 12 -
past exposure to harm is insufficient in and of itself to confer standing to seek injunctive relief to
prevent some possible future harm, of course past wrongs are evidence bearing on whether there is a
real and immediate threat of repeated injury. OShea v. Littleton, 414 U.S. 488, 496 (1974).
Defendants prior statements suggest that injury would confer standing:
Because Plaintiff has never been injured, she lacks standing to bring this suit.; Plaintiff
cannot establish standing for her negligence claim because she has not actually been injured.;
Plaintiff does not allege that she has ever been injured at a baseball game.; Although
Plaintiff asserts that there is no guarantee she can duck the next time, she has never been
injured.; Plaintiff cannot possibly allege that she actually has been or certainly will be
injured by a foul ball or bat, and thus cannot establish standing.
6
7
8
9
MTD 1, pp. 1, 3, 24.
10
Plaintiff Payne has not been injured.; Although Payne asserts that there is no guarantee
she can duck the next time, she has never been injured.
11
12
MTD 2, p. 3.
Plaintiffs have alleged just this type of injury, plus more. Plaintiffs also allege they are at risk
13
14
of future injury. Mr. Gorman is a season ticket holder (FAC, 19) who by definition will be attending
15
games on a regular, reoccurring basis. He is at risk because of the location of his seats. He has alleged
16
that he has witnessed numerous foul ball injuries from his vantage point this season (id., 20) and
17
that he is at imminent risk of injury, both due to the speed of foul balls and bats entering the stands, and
18
the nature and amount of distractions at BB&T ballpark. Id., 22. While the FAC does not provide
19
detail regarding when Ms. Smith who was just injured and suffers lasting effects will return to the
20
ballpark, the FAC alleges she has been placed at unreasonable risk due to Defendants breaches and
21
misconduct. See, e.g., id., 330-331.

Ms. Paynes risk is also actual and immediate.7 Ms. Payne is a season ticket holder (FAC,
22
23
17) who by definition will be attending games on a regular, reoccurring basis. Her section of the field is
24
entirely exposed and she is at risk of imminent injury due to the location of her seats. Ms. Paynes
25
seats are in Oakland Coliseums prime foul ball territory. Her seats are in the plaza infield second
26
27
28
Defendants point out that Payne has attended games for nearly 50 years but has never been
struck (MTD 2, p. 12). This, respectfully, mischaracterizes the facts, which are that Ms. Payne has
been an Oakland As devotee for nearly 50 years (FAC, 17) and is significant to the extent
Defendants draw conclusions regarding her odds of being struck based on this, which they appear
to do.
010525-11 834358 V1
- 13 -
level which is served by the main concourse, which also serves the first level, as depicted in the FACs
Oakland Coliseum stadium map. Id., 18.8 The second level is considered to have solid views of
the action on the field and the areas in proximity to Ms. Paynes seats (specifically, the section directly
in front of her and the adjacent sections) are considered the areas most prone to foul balls. Id. While a
source offered in the FAC notes that other ballparks might provide more opportunities to catch foul
balls because of smaller foul ball territory at Oakland Coliseum,9 the sections most likely to receive
foul balls are the sections closest to and in direct proximity to Ms. Paynes section. These include the
MVP Infield sections 111-114 (111 is the area exactly in front of Plaintiffs seats), and 112-114 (the
areas just in front and to the left of Plaintiffs section). Id.
10
Plaintiffs FAC added newly acquired information regarding the extent to which the second
11
level at Oakland Coliseum is favored due to the presence of foul balls. A self-described king of foul
12
balls stands in the second level, in section 220, to catch the most foul balls, and describes it as foul
13
ball alley where the balls come right to you. FAC, 18. This individual chose the second level
14
over the first level as more advantageous to catch foul balls and caught 37 foul balls in the second level
15
section. This section is depicted in the Oakland Coliseum seating map in the FAC, and appears to be
16
the near mirror equivalent of Ms. Paynes seats on the third base side. Id.10
17
Defendants rely upon a set of cases that fundamentally differ from the present case. In City of
18
Los Angeles v. Lyons, the Plaintiff would have to meet a set of attenuated circumstances first
19
happening to be driving a car when stopped for a traffic or other violation then, subjected to a
20
21
22
23
24
25
26
27
28
Defendants describe Ms. Paynes section as well above the field level (MTD 2, p. 4) but
elsewhere acknowledged it is an infield section. Id., p. 5, n.6.
9
http://www.bestfoulballseats.com/mlb-parks/oakland-alameda-county-coliseum-oaklandathletics/, cited in the FAC, n.43.
10
Plaintiffs are not aware of a specific study conducted to quantify the specific risk to Plaintiff
Payne and/or to another similarly situated spectator sitting in section 211. Therefore, Plaintiffs
submit best-available evidence, including Ms. Paynes personal experiences in her section, her
personal beliefs, studies describing the second level in general, studies describing her surrounding
sections, and the specific statements of someone who catches foul balls, who chooses a similar
section to stand in, as supportive evidence. Defendants characterize this submission of supportive
evidence as an attempt to create the appearance of imminent harm (MTD 2, p. 10) but cite no
evidence in opposition, save for a source, previously provided by Plaintiffs, that characterizes the
ballpark as less favorable for foul balls than other ballparks, in support of their circular argument that
Paynes allegation is quite implausible in light of her admission that her seats are in section 211
211 is part of the upper deck above the field-level sections that the Plaintiffs describe as the
most dangerous areas. MTD 2, n.11.
010525-11 834358 V1
- 14 -
chokehold not only that, but a chokehold, without any provocation by an officer, to trigger injury.
City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, the likelihood was all the more rare
because nothing in the police departments policy suggested that chokeholds were authorized without
provocation. Lyons, 461 U.S. at 108. Clapper is also dissimilar, as Clapper similarly relied upon a
speculative chain of possibilities that involved guesswork as to how independent decision makers
will exercise their judgment. Clapper v. Amnesty Intl, USA, 133 S. Ct. 1138 (2013). First, the
Government would have needed to imminently target communications to which respondents are
parties. This theory would rest on respondents assertion that their foreign contacts will be targeted.
However, they had no actual knowledge of the Governments targeting practices in this respect. Then,
10
even if respondents could demonstrate that the targeting of their foreign contacts is imminent, they
11
relied on speculation as to whether the Government would seek to use a certain specific manner of
12
authorized surveillance instead of one of the Governments numerous other surveillance methods,
13
which were not challenged. Then, even if respondents could show that the Government would seek
14
authorization for that manner of targeting of respondents foreign contacts, they relied on speculation
15
that that surveillance would be authorized. Then, even if the Government were to obtain the necessary
16
approval to target respondents foreign contacts, it was unclear whether the Government would
17
succeed in acquiring those contacts communications. Then, even if the Government were to target
18
respondents foreign contacts, respondents relied on speculation as to whether their own
19
communications with those contacts would be incidentally acquired. Clapper, 133 S. Ct. at 1138.
20
This case is fundamentally different. There is always a risk that any baseball hit by a major
21
league baseball player will enter the stands and hit the Plaintiffs. Theres no guesswork or highly
22
attenuated separate chain of possibilities that must be met certainly nothing like those contemplated
23
in Lyons and Clapper.
24
Defendants reliance on Carrico v. City & Cnty. of San Francisco for support that conclusory
25
and factually unsupported assertions are insufficient to confer Article III standing is also misplaced.
26
The Carrico facts differ substantially and in fact support Plaintiffs claims. In Carrico appellants
27
alleged, without further elaboration, that Proposition M was intended to, and does, impact their
28
operations as landlords. Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002, 1006 (9th Cir.
010525-11 834358 V1
- 15 -
2011). This Circuit described these allegations as Mere allegations of a subjective chill. The
allegations were found lacking precisely because the Court sought what is present here a threat of
specific future harm. Id. (Mere [a]llegations of a subjective chill are not an adequate substitute for a
claim of specific present objective harm or a threat of specific future harm.) (quoting Laird v. Tatum,
408 U.S. 1, 13-14 (1972) (internal quotation marks omitted)).
The record reflects the real and actual danger to Plaintiff Payne, and to the other Plaintiffs, of
sitting in the Danger Zone seats. She and the putative class are in harms way now and continue to be
in harms way whenever they attend games and sit in the Danger Zone. The threat is always present
and requires no more than a ball making contact with a bat and landing in their sections, which, as
10
alleged and demonstrated, are prone to foul balls.11
11
(3)
Plaintiffs have established a direct causal connection between this

risk and MLBs failure to protect.
12
While it is not entirely clear, it appears Defendants argue Plaintiffs have not alleged a causal
13
connection between the injury and the conduct complained of. MTD 2, p. 9 (Plaintiffs fail to meet at
14
least the injury-in-fact requirement.) (emphasis added). Plaintiffs must also allege a causal
15
connection between the injury and the conduct complained of the injury has to be fairly
16
trace[able] to the challenged conduct of the defendant, and not th[e] result [of] independent action
17
of some third party not before the court. Lujan, 504 U.S. at 560. This requirement has also been
18
met. Plaintiffs would not be here if Defendants had not failed to protect their seats with netting.
19
Plaintiffs, along with all other spectators who sit in the Danger Zone, are the specific object of
20
Defendants inaction. Defendants have made an affirmative decision not to protect these specific fans
21
by extending protective netting in front of their seats and Plaintiffs have made clear that it is MLBs
22
specific actions and inactions that have put Plaintiffs in a situation where they are at risk of injury, by
23
stressing they sit in unprotected seats (see, e.g., FAC, 17, 19) and that as a result of Defendants
24
25
26
27
28
11
This case can be squarely contrasted with those where there is no possibility of future injury.
See, e.g., B.C. v. Plumas Unified Sch. Dist. 192 F.3d 1260, 1264 (9th Cir. 1999) (Former student
lacked standing because he was no longer enrolled in school and had no future plans to reenroll);
Cornelius v. Los Angeles Cnty. Etc. Auth., 49 Cal. App. 4th 1761, 1773 (1996), as modified on denial
of rehg (Nov. 18, 1996) (plaintiffs declaration failed to allege that plaintiff bid or intended to
submit a future bid as a general contractor).
010525-11 834358 V1
- 16 -
failure to implement reasonable safety measures, they are at increased and unreasonable risk of injury
and have been damaged (see, e.g., id. 25-26). Every time Plaintiffs return to the ballpark, the
violation and their experience of being placed at risk continues, until nets are extended.
(4)
Plaintiffs have established there is a substantial likelihood the relief

sought will redress the injury.
5
While it is not entirely clear, it appears Defendants argue Plaintiffs have not alleged that injury
6
will likely be redressed by a favorable decision. MTD 2, p. 9 (Plaintiffs fail to meet at least the
7
injury-in-fact requirement.) (emphasis added). Plaintiffs must also allege that the injury will likely
8
be redressed by a favorable decision. Lujan, 504 U.S. at 560-566. Plaintiffs believe that there is a
9
substantial likelihood that the relief sought (additional protective netting at the Oakland coliseum, as
10
well as all MLB ballparks), if granted, will redress the injury. Plaintiffs have made this connection
11
clear in the FAC. Ms. Payne and Mr. Gorman specifically point out that the current threat is related to
12
the fact that their seats are not protected by netting. See FAC, 17, 19. In addition, throughout the
13
FAC, all Plaintiffs refer to the presence or lack of netting and the impact on safety. See, e.g., At
14
Dodgers stadium, netting is also relatively minimal and does not adequately protect fans sitting
15
between the foul poles. Id., 69. Plaintiffs will not be at risk if netting is put up, as netting would
16
create a physical barrier between the field of play and the Danger Zone.
17
18
19
(5)
Plaintiffs also believe the state of being at risk, even without future
injury, is sufficient to confer standing.
Defendants argue Plaintiffs have not met their Injury in Fact requirement under Lujan. MTD
20
2, p. 9. In addition to the fact that Plaintiffs are at imminent risk, Plaintiffs believe that the mere
21
position of being in harms way, and the fact that this has impacted Plaintiffs negatively, is sufficient to
22
confer standing. See, e.g., Doe v. Chao (suggesting allegations of generalized anxiety and stress would
23
be sufficient to confer standing under Article III as adverse effects, despite lack of a cause of action
24
under the Privacy Act). Doe v. Chao, 540 U.S. 614, 617-18, 624-25 (2004) (Nor does our view
25
deprive the language recognizing a civil action by an adversely affected person of any independent
26
effect, for it may readily be understood as having a limited but specific function: the reference in
27
552a(g)(1)(D) to adverse effect acts as a term of art identifying a potential plaintiff who satisfies the
28
010525-11 834358 V1
- 17 -
injury-in-fact and causation requirements of Article III standing, and who may consequently bring a
civil action without suffering dismissal for want of standing to sue.). Ms. Payne has alleged she is in
fear and fears for her family (FAC, 17), and Mr. Gorman has witnessed many injuries including near-
fatal injuries and has experienced foul balls directly approaching him, coming into his vicinity, striking
the person sitting right next to him, and passing by him (id., 20). Ms. Smith has already been injured.
2.
Plaintiffs have standing to assert their Fraudulent Concealment claims, UCL

claims, CLRA claims and cause of action for violation of California Civil Code
1668.
a.
Plaintiffs have adequately alleged injury in fact and redressability.
Defendants assert that Plaintiffs fail to adequately allege injury in fact for their claims of
10
fraudulent concealment, and claims of violation of the CLRA, the UCL and 1668. MTD 2, pp. 13-14.
11
Defendants assert that Plaintiffs have not offered a single particularized allegation that any of them has
12
suffered a concrete injury from Defendants alleged fraudulent statements or concealments. Id., p. 13.
13
Plaintiffs have offered several particularized allegations regarding concrete injury from Defendants
14
alleged fraudulent statements or concealments. With respect to their Fraudulent Concealment, UCL,
15
CLRA claims and causes of action for violation of California Civil Code 1668, the FAC incorporates
16
by reference all allegations of the preceding paragraphs. FAC, 334, 338, 346, 352. Plaintiffs have
17
alleged that they looked to Defendants for guidance (spectators, including the Plaintiffs have
18
looked to Defendants for guidance on spectator safety issues.). Id., 313. They allege MLB wholly
19
misrepresented the true nature of the risk, which was not open and obvious to Plaintiffs. Id., 318.
20
Ms. Payne alleges she is at imminent risk of injury (id., 17), and Mr. Gorman alleges he has been
21
injured and faces future risk (id., 22). Ms. Smith alleges she has been injured. Id., 24. Plaintiffs
22
allege they relied on MLBs statements to their detriment (see, e.g., id., 336) and that MLBs
23
practices induced a false belief (id., 336) and deceived them (id., 342). Amongst other things, this
24
reliance induced them to keep purchasing tickets for and to continue to attend MLB games. Id., 344.
25
Plaintiffs also allege Defendants violated 1668, as the waiver on the back of their tickets
26
obscured its effect: it was neither clear nor explicit, and written as a whole, did not clearly notify the
27
ticket holder of the risk, the hazard, the consequences, or the effect of accepting the agreement. FAC,
28
354. The contract did not expressly and unequivocally mention negligence, or specify that the
010525-11 834358 V1
- 18 -
purchaser was purchasing an unprotected seat. Id. MLB did not indicate, at the time tickets were
purchased, which seats were and were not protected by netting and this is not indicated on the ticket or
on the waiver. Id.
With respect to claims of fraudulence under the UCL, fraudulent as used in the UCL only
requires a showing that members of the public are likely to be deceived. Olsen v. Breeze, 48 Cal.
App. 4th 608, 618 (1996) (citing Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1267 (1992)).
Plaintiffs have alleged and demonstrated they were deceived. See, e.g., FAC, 342.
b.
Redressability
Defendants assert that Plaintiffs fail to adequately allege redressability for their claims of
10
fraudulent concealment and claims of violation of the CLRA, the UCL and 1668. MTD 2, pp. 13-14.
11
Plaintiffs have made clear the connection between the fraudulent conduct and the requested relief.
12
Defendants misrepresentations have placed Plaintiffs in harms way and netting would protect
13
Plaintiffs. In addition, enforcement of an invalid contractual provision would harm Plaintiffs, because
14
as indicated in the FAC, the contracts were insufficient to adequately warn and did not communicate
15
all potentially relevant information.
16
B.
Plaintiffs Have Personal Jurisdiction Over Defendants and Venue Is Proper in This
District
17
1.
The Court has personal jurisdiction over the Out-of-State Clubs.
18
a.
19
20
The applicable legal standard supports a finding that this Court has
personal jurisdiction.
Defendants argue that this Court lacks personal jurisdiction over the Out-of-State Clubs. MTD
21
2, pp. 14-17. When a motion to dismiss for lack of jurisdiction is based on written materials, as here,
22
and not on an evidentiary hearing, the plaintiff needs to make only a prima facie showing of
23
jurisdictional facts to withstand the motion to dismiss. Pebble Beach Co. v. Caddy, 453 F.3d 1151,
24
1154 (9th Cir. 2006) (quoting Doe v. Unocal, 248 F.3d 915, 922 (9th Cir. 2001). Uncontroverted
25
allegations in the complaint are taken as true. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
26
797, 800 (9th Cir. 2004). Conflicts between parties over statements contained in affidavits must be
27
resolved in the plaintiffs favor. Id. at 800. Where there is no applicable federal statute governing
28
personal jurisdiction, the district court applies the law of the state in which the district court sits. Dole
010525-11 834358 V1
- 19 -
Food Co., Inc. v. Watts, 303 F.3d 1104, 1110 (9th Cir. 2002). Because Californias long-arm
jurisdictional statute is coextensive with federal due process requirements, the jurisdictional analyses
under state law and federal due process are the same. Id. (citing CAL. CODE CIV. PROC. 410.10).
4
5
b.
The Out-of-State Clubs continuously and systematically contact California.
Defendants argue that general personal jurisdiction is not present. MTD 2, pp. 14-16. General
personal jurisdiction is present via the Out-of-State Clubs continuous and systematic contacts with
California. A court obtains general personal jurisdiction over an out-of-forum defendant when that
defendants actions or affiliations are so continuous and systematic as to find that defendant to be at
home in the forum state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851
10
(2011). Plaintiffs allege the Out-of-State Clubs regularly sponsor and play games in California and
11
transact business in California. FAC, 14, 16. Defendants have admitted the Out-of-State Clubs
12
receive significant financial benefits from games played in California and pay taxes in California.
13
Senne v. Kan. City Royals Baseball Corp., 2015 U.S. Dist. LEXIS 6617, at *35-36 (N.D. Cal. May 20,
14
2015) (citing Major League Baseballs answers to interrogatories confirming revenue sharing
15
attributable to games played in California); Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1185 (7th
16
Cir. 1996) (citation omitted) (noting that admissions of fact in one case are evidence in another case).
17
The Out-of-State Clubs also contract with California residents through ticket-back contracts of
18
adhesion which seek to limit these clubs liability for the very injuries asserted in this litigation. Decl.
19
of Thomas E. Gorman in Support of Mot. to Dismiss First Amended Class Action Comp. (Gorman
20
Decl.), Nov. 20, 2015, ECF No. 52-1, Exs. B-C. As Defendants own evidence demonstrates, every
21
California resident who holds a ticket to any MLB game in California, at least to every Oakland As
22
and Los Angeles Dodgers game, contracts with the Out-of-State Clubs via an assumption of the risks
23
of injuries occurring at the games. This distinguishes this case from Senne. Gorman Decl. Exs. B-C;
24
see Senne, 2015 U.S. Dist. LEXIS 66170, at *35-36. Defendants disregard much of these facts, urging
25
the Court to conclude that these clubs only contact with California is the mere playing of games (MTD
26
2, p. 30), but the facts warrant a different conclusion.
27
28
010525-11 834358 V1
- 20 -
c.
2
3
The claims also arise out of Defendants contacts with California
Defendants argue that specific personal jurisdiction is also not present. MTD 2, pp. 1618. A court may exercise specific jurisdiction over a non-resident defendant if:
(1) the non-resident defendant must purposefully direct his activities or
consummate some transaction with the forum or resident thereof; or perform
some act by which he purposefully avails himself of the privileges of
conducting activities in the forum, thereby invoking the benefits and protections
of its laws;
4
5
6
7
(2) the claim must be one which arises out of or relates to the defendants
forum-related activities; and
8
9
(3) the exercise of jurisdiction must comport with fair play and substantial
justice, i.e. it must be reasonable.[12]
10
11
Plaintiffs pleadings and Defendants own admissions demonstrate that Plaintiffs claims arise from or
12
are related to the Out-of-State Clubs contacts with California. Plaintiffs allege injuries arising out of
13
the games played by Defendants in California baseball stadiums, including games featuring the Out-of-
14
State Clubs. FAC, 14, 17-18, 24-28; see id., 107, 141, 145-146, 155, 161, 176, 201, 217-218,
15
223, 234, 237, 242 (noting other injuries from foul balls or broken bats at games in California). Not
16
only are the Out-of-State Clubs competitors in these games, they receive financial benefits from
17
revenue sharing, and attempt to obtain liability waivers through ticket-back contracts of adhesion for
18
these games. Indeed, the fact that the Out-of-State Clubs utilize the ticket-back contracts of adhesion
19
indicates their knowledge that the games in California could lead to injuries in California, including
20
those suffered by Plaintiffs. See Dole Food, 303 F.3d at 1111 (defendants actions satisfy second
21
specific jurisdiction requirement when it directs intentional acts at the forum state that give rise to
22
injuries defendant knows are likely to be suffered in the forum state). But for the Out-of-State Clubs
23
playing games in California, and receiving financial and allegedly legal benefits from those games,
24
Plaintiffs would not have been injured. See Senne, 2015 U.S. Dist. LEXIS 66170 at *151-52 (citation
25
omitted) (recognizing the Ninth Circuits loose requirement of some nexus between plaintiffs claims
26
and defendants forum-related activities). Plaintiffs have satisfied the second specific personal
27
28
12
Senne, 2015 U.S. Dist. LEXIS 66170, at *97-98.

010525-11 834358 V1
- 21 -
jurisdiction requirement, and the Court may properly exercise personal jurisdiction over the Out-of-
State Clubs. See Dole Food, 303 F.3d at 1111.
2.
Venue is proper in the Northern District of California pursuant to 28 U.S.C.

1391(b)(3).
4
Defendants argue that this district is an improper venue for the vast majority of Plaintiffs
5
claims. MTD 2, pp. 18-19. 28 U.S.C. 1391 provides that a civil action may be brought: (1) where
6
any defendant resides, if all defendants reside in the same state; (2) where a substantial part of the
7
events or omissions giving rise to the claim occurred; or (3) if there is no district in which an action
8
may otherwise be brought as provided in this section, any judicial district in which any defendant is
9
subject to the courts personal jurisdiction with respect to such action. Here, all defendants do not
10
reside in the same state, so as Defendants correctly note, venue does not lie in this district under 28
11
U.S.C. 1391(b)(1).
12
Defendants contend venue does not lie in this Court under 28 U.S.C. 1391(b)(2) because the
13
Plaintiffs allege acts or omissions relate to events in Oakland, Los Angeles, and North Carolina, and
14
because the claims against each Club relate to stadium operations around the country. Assuming for
15
purposes of argument that this is correct, then venue is governed by 28 U.S.C. 1391(b)(3), as there
16
would be no other district in which this action could otherwise be brought under 28 U.S.C. 1391. 28
17
U.S.C. 1391(b)(3); Atl. Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. Tex., 134 S. Ct. 568, 578
18
(2013) (as long as a court has personal jurisdiction over a defendant, venue will always exist in some
19
federal court). Here, Defendant Oakland Athletics Limited Partnership, which regularly plays baseball
20
in this district, is plainly subject to personal jurisdiction in the Northern District of California. And as
21
outlined above in Section B, all Defendants are subject to personal jurisdiction in this district. Hence,
22
venue properly lies in this district.
23
C.
Plaintiffs Properly Stated Their Negligence Claims (Count 1, FAC)
24
Defendants complain that Plaintiffs failed to state a claim for negligence, challenging each of
25
the four elements of a negligence claim. MTD 2, pp. 20-27. Because Plaintiffs properly alleged a
26
negligence cause of action, Defendants argument should be rejected.
27
28
010525-11 834358 V1
- 22 -
1.
Defendants argue that the baseball rule effectively immunizes them from almost any
responsibility toward fans injured by foul balls or flying bats. See MTD 2, pp. 35-40. However, in the
nearly 100 years since the baseball rule was first announced, nearly every competitive aspect of the
game has been amplified, as have the volume of distractions created by Defendants. No one can
reasonably suggest that in 1935 foul balls flew into the stands with the same force and speed at which
they now crush into spectators faces and bodies. See FAC, 96-244.
Plaintiffs properly pleaded Defendants duty.
a.
Defendants failed to comply with their duty to provide sufficient screened

seats.
9
As Defendants recognize, the baseball rule requires Defendants to provide screened seats
10
for as many as may be reasonably expected to call for them on any ordinary occasion. MTD 2, p. 21
11
(quoting Quinn v. Recreation Park Assn, 3 Cal. 2d 725, 729 (1935)). These Defendants failed to do so.
12
See, e.g., FAC, 74-75 (noting that the screened seats are scarcely available, often sold out, or
13
otherwise unavailable); id., 267-68. In particular, in the Oakland As ballpark, the screened seats
14
include Diamond Level Seats, which cost well-heeled patrons nearly $16,000 for season tickets, or
15
$230 per game. Id., 72. Oakland Coliseum offers only 47 feet of netting to protect a small area
16
directly behind home plate. Id., 67. In effect, the premium costs of screened seats, and the extremely
17
limited number, provide Plaintiffs and others no meaningful choice to sit in protected seats. Indeed,
18
Defendants failure to provide affordable screened seating practically forces those with families to sit
19
in the unprotected areas. Id., 75.
20
b.
Plaintiffs cannot assume risks of which they are not aware.
21
Defendants argue that Plaintiffs assumed the risk of injury. MTD 2, p. 20. Plaintiffs allege that
22
they did not consent to take their chances of injury. It is Plaintiffs allegation that there is no general
23
awareness of the fact that sitting in the Danger Zone could lead to serious injury or death, and this is
24
why game after game, people bring their infants and children to sit in these sections. See, e.g., FAC,
25
246-248, 260, 318. A 2006 study concluded that little information quantifies the risk to spectators or
26
27
28
010525-11 834358 V1
- 23 -
discusses ways to reduce the risk and many spectators may falsely assume that they are safe at some
events.13 Id., 247.
Plaintiffs also allege that certain so-called warnings, placed in ballparks, contribute to this lack
of awareness by falsely representing that the ballpark is safe as long as spectators pay attention or
are alert, when in reality, information provided in the FAC indicates paying attention is not a
defense. See, e.g., id., at 103, 106, 116, 126, 152, 154, 170, 184, 198, 207 (citing instances of
injuries from foul balls or broken bats to which there was no time to react); cf id. at 125 (noting that
one fan was lucky that the foul ball was slow enough and his reflexes were fast enough that he was
able to protect his face; however, he still suffered a dislocated thumb). In effect, Defendants would
10
have the assumption of risk doctrine apply even to risks from which a plaintiff cannot protect herself.
11
The FAC also alleges the so-called waiver of liability on tickets is not clear, explicit or
12
comprehensible, and details how and why. Because of the harsh results, a liability-limiting agreement
13
to be effective must be clear, explicit and comprehensible in each of its essential details. Ferrell v. S.
14
Nev. Off-Road Enthusiasts, Ltd., 147 Cal. App. 3d 309, 318 (1983). For an agreement to be effective,
15
it must also appear that its terms were intended by both parties to apply to the particular conduct of
16
the defendant which has caused the harm. Again, where the agreement is drawn by the defendant and
17
the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant.
18
Bennett v. United States Cycling Fedn, 193 Cal. App. 3d 1485, 1490 (1987) (citing Rest. 2d Torts,
19
496B, com. d, p. 566.). Additionally, the operative language should be placed in a position which
20
compels notice and must be distinguished from other sections of the document. Conservatorship of
21
Link, 158 Cal. App. 3d 138, 142 (1984); Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 1731
22
(1993). Defendants did not place the language in a distinguishable section of the document. As
23
Defendants examples make clear, the warning language in Plaintiffs tickets was not placed in a
24
position which compels notice or is distinguishable from other sections of the document.14
25
26
27
28
13
The FAC is the first comprehensive summary of actual accounts and photographs of all these
injuries, and was created by lawyers and investigators who scoured personal social media sites and
local news articles for anecdotal information.
14
Defendants sample ticket back for the Oakland As shows a warning header in bold in
language the same size and font as the rest of the ticket, residing in the middle portion of the ticket.
010525-11 834358 V1
- 24 -
1
2
3
Finally, Plaintiffs allege Defendants numerous misrepresentations falsely stated the safe nature
of the Danger Zone.
c.
Defendants cannot increase the risk of injuries by creating distractions

while claiming that their customers assume the risk of injuries.
4
Defendants nowhere in their Motion to Dismiss cite to a distraction theory case and thus miss
5
the thrust of much of the FAC. See, e.g., FAC, 6, 17, 22, 78, 90, 281-283, 285, 293-298, 315-316,
6
321. Defendants have a duty, even in the face of the baseball rule, to not intentionally increase the
7
risks of spectator injury through their own actions, such as by deliberately creating distractions. See
8
Lowe v. Cal. League of Proffl Baseball, 56 Cal. App. 4th 112, 114 (1997). In Lowe, the minor league
9
baseball teams mascot allegedly distracted a fan who was struck in the face with a foul ball. The court
10
held that even under the doctrine of assumption of risk (i.e. the baseball rule), the baseball defendants
11
had a duty not to increase the inherent risks of attending games. Id. The same duty attends in the
12
present case, where Defendants have unleashed an even greater number of distractions onto spectators.
13
Nowhere in Defendants Motion to Dismiss do they acknowledge this well-established duty.
14
The FAC presents many examples of the ways Defendants unreasonably increased the risks to
15
Plaintiffs and other spectators. Defendants the Commissioner, MLB, and the teams have made clear
16
that they are doing all that they can to make the game more appealing to the young, electronically
17
connected fan. FAC, 77-79, 281-85. In so doing, Defendants have intentionally and continually
18
designed a myriad of distractions to take young fans eyes off the live game and place them onto
19
electronic screens. The most glaring current example is the MLB At-Bat app for smartphones. Id.,
20
78, 282. Defendant MLB specifically markets this app for use during the game, as a fans mobile
21
companion while visiting [her] favorite ballparks. Id. Indeed, the Oakland As even encourage fans
22
to Play Keyboard Wars on app during the game. Id., 282. This is particularly concerning as
23
Commissioner Manfred has acknowledged, on at least two occasions, that this is done deliberately to
24
appeal to childrens shorter attention spans. Id., 6, 78. The FAC also indicates MLB and the
25
26
27
28
It is Defendants who added the red box surrounding this language as well as the magnification.
Gorman Decl., Ex. B. The Dodgers ticket shows warning assumption of risk in bold and the
warning in regular small font, along with the rest of the ticket, and residing in the middle portion of
the ticket. Gorman Decl., Ex. C.
010525-11 834358 V1
- 25 -
individual teams have worked together in a joint effort to bring enhanced technology, such as WiFi, to
the ballparks.15 Id., 78.
Furthermore, the Lowe decision indicates that whether distractions enhanced the risk is an issue
of fact to be resolved at trial. Lowe, 56 Cal. App. 4th at 123. It would not be appropriate to resolve
this factual dispute at the Motion to Dismiss stage.
2.
Defendants argue that Plaintiffs failed to adequately allege breach and causation. MTD 2, pp.
Plaintiffs properly pleaded breach and causation.
25-26. Defendants first assert that Defendants MLB and the Commissioner could not breach a duty
because they do not provide access to seats. MTD 2, p. 40. Defendants secondly assert that Plaintiffs
10
only allege the bare elements of breach because Defendants find the pleadings to be confusing. See id.
11
However, as discussed above, Defendants duties to spectators include providing enough screened
12
seats for all those who could reasonably expected to want them, and not increasing their fans risks of
13
injuries by creating pervasive distractions (which are designed to take spectators eyes off of the live
14
action). See Lowe, 56 Cal. App. 4th at 114.
15
Defendants MLB and the Commissioner directed the substantial increase of electronic
16
distractions in ballparks, including using MLB.com to bring games to the second screen by ensuring
17
that all ballparks are equipped with sufficient WiFi. FAC, 78. Defendants MLB and the
18
Commissioner specifically market the MLB At-Bat application for use during live games at the
19
ballpark. Id. Defendants also promoted the use of the pitch clock to speed up the pace of the game
20
to engage next generation of baseball fan. Id., 79. Further, Plaintiffs discussed the roles the
21
Commissioner and MLB have in promulgating health and safety standards for major and minor league
22
teams, which substantiates these Defendants role in ballpark safety. Id., 253-259. Thus, Plaintiffs
23
properly pleaded that Defendants MLB and the Commissioner breached their duties.
24
25
26
27
28
15
Defendants also declare, quoting an Arizona case, lack of a screen is as obvious as the fact
that the Grand Canyon is a chasm, and the danger that a spectator hit by a foul ball may be injured is
as evidence as the likelihood that one who falls into the Grand Canyon may be hurt. MTD 2, pp.
35-36 (quoting Bellezzo v. Arizona, 174 Ariz. 548, 551-52 (Ct. App. 1992). Of course, the tour
guides leading this fictional person along the edge of the Grand Canyon are not also encouraging
their spectator to engage in Keyboard Wars on his smartphone, encouraging him to order a beer
from a vendor, encouraging him to read statistics on a jumbotron scoreboard, and encouraging him to
purchase souvenirs from the GrandCanyon app.
010525-11 834358 V1
- 26 -
The team Defendants also breached their duty under the baseball rule to provide sufficient
numbers of screened seating and to not increase the risks of injury by creating myriad distractions in
the ballpark, including electronic, vending, and live entertainment (e.g., mascots) distractions. See, e.g.,
id., 22, 282-285. Plaintiffs alleged that Defendants failed to provide enough access to screened seats
as fans would be reasonably expected to request. Id., 268. Defendants complain that this allegation
is not sufficiently clear to properly plead the breach element. MTD 2, p. 40. Defendants demand too
great of a pleading burden: the baseball rule does not require Plaintiffs to state the exact number of
screened seats that must be provided and the specific sections they must be provided in. The measure
is one of reasonableness, and the question is whether Defendants could reasonably expect more fans to
10
demand screened seats than are currently available. See Quinn v. Recreation Park Assn, 3 Cal. 2d 725
11
(1935). Throughout the FAC, Plaintiffs provide examples of significant injuries occurring in
12
unscreened areas, many occurring next-to or close-to the existing screened seats. See, e.g., FAC
13
101, 104, 107-108, 129, 134, 140, 153. Those examples demonstrate the need for increased protection
14
and put Defendants on notice that fans could reasonably be expected to demand additional screened
15
seats. In fact, that demand is the basis of this lawsuit. Plaintiffs have properly pleaded breach.
16
Plaintiffs have also sufficiently pleaded causation. If Defendants had provided sufficient
17
screened seats, and if Defendants had not intentionally increased the distractions in ballparks, Plaintiffs
18
would not have been struck by foul balls and would not be at imminent risk of substantial harm when
19
they return to ballparks in the future. See, e.g., FAC 17, 20, 22, 24 - 26.
20
3.
21
Defendants argue Plaintiffs Payne and Gorman have not suffered any injury. MTD 2, p. 26.
22
These Plaintiffs unreasonably high risk of injury created by Defendants failure to install sufficient
23
screening and Defendants ubiquitous efforts to distract fan through means including apps, jumbotrons,
24
and mascots, is exactly the kind of injury for which prospective or injunctive relief is proper.
25
Plaintiffs properly pleaded injury.
Two lines of cases support such a conclusion. First, in cases involving exposure to toxic
26
chemicals, plaintiffs, after meeting a high burden of proof, are allowed to recover as damages the
27
future costs of medical monitoring. See, e.g., Trujillo v. Ametek, Inc., 2015 U.S. Dist. LEXIS 156803,
28
at *13-14 (S.D. Cal. Nov. 18, 2015) (citing Miranda v. Shell Oil Co., 17 Cal. App. 4th 1651, 1656
010525-11 834358 V1
- 27 -
(1993); Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1007 (1993)). Second, Plaintiffs
injuries are similar to cases involving threats of future non-compliance with the ADA, where the
Supreme Court has held that such possibility is a sufficient basis for concluding that the Plaintiffs
suffered harm. See Pickern v. Holiday Qual. Foods, 293 F.3d 1133, 1137-38 (9th Cir. 2002); see also
Baker v. New York Dept of Envl Conserv., 2012 U.S. Dist. LEXIS 86845, at *9 (N.D.N.Y. June 22,
2012) (citations omitted) (Where, as here, a plaintiff demonstrates an intent to return to, or is deterred
from, visiting a noncompliant facility, he suffers a cognizable injury under Article III.).
8
9
Plaintiffs pleaded that Defendants breaches of their duties subjects them and the putative class
to a present improper risk of injury which will cause these Plaintiffs to also suffer additional
10
damages in the future. FAC, 331. The remedy for this improper risk, Defendants appear to argue, is
11
for these Plaintiffs to ignore all of the distractions Defendants interject into the fan experience and to
12
just pay attention. However, as shown throughout the FAC, no amount of paying attention is sufficient
13
to protect these Plaintiffs and other class members from being maimed by foul balls and broken bats.
14
See, e.g., id., 133, 139, 152, 154. The Plaintiffs allege that even professional baseball players cannot
15
protect themselves from injury and provides examples of players that have been injured or killed. Id.,
16
86. The Plaintiffs also allege that players have demanded protective netting since at least 2007 and
17
have expressed safety concerns precisely because paying attention is not a defense to injury and
18
spectators are not aware of the danger. Id., 87, 248, 251.
19
Walking into a stadium that fails to fulfill its duty to provide the requisite number of screened
20
seats is no different than the wheelchair-bound plaintiff attempting to visit a non-ADA-compliant
21
venue. Both pose insurmountable and unreasonable risks. No amount of future monitoring can fully
22
prevent these Plaintiffs from being drilled by bats or balls that scream into the stands.
23
D.
Plaintiffs Have Stated a Claim for Fraudulent Concealment (Count 2, FAC)
24
1.
25
Defendants argue that Plaintiffs fail to allege Fraudulent Concealment with particularity. MTD
Plaintiffs have alleged Fraudulent Concealment with particularity.
26
2, pg. 27. In alleging fraud or mistake, a party must state with particularity the circumstances
27
constituting fraud or mistake. Fed. R. Civ. P. 9(b). The circumstances constituting the alleged fraud
28
must be specific enough to give defendants notice of the particular misconduct ... so that they can
010525-11 834358 V1
- 28 -
defend against the charge and not just deny that they have done anything wrong. Kearns, 567 F.3d at
1124 (citing BlyMagee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)). To satisfy Rule 9(b), a
pleading must identify the who, what, when, where, and how of the misconduct charged, as well as
what is false or misleading about [the purportedly fraudulent] statement, and why it is false. Reniger,
2015 U.S. Dist. LEXIS 109068 at *3 (citing to Cafasso ex rel. United States v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal quotation marks and citations omitted) (alteration in
original). Malice, intent, knowledge, and other conditions of a persons mind may be alleged
generally. Fed. R. Civ. P. 9(b).
Plaintiffs have provided facts specific enough to give defendants notice of the particular
10
misconduct ... so that they can defend against the charge and not just deny that they have done anything
11
wrong under Kearns. Plaintiffs have identified: (a) the parties to the misrepresentations; (b) have
12
provided specific quotes that contained misrepresentations; and (c) have provided citations, thereby
13
accounting for the time, place and specific content. Plaintiffs have also stated how they relied on
14
Defendants misrepresentations and were harmed (for example, the statements led Plaintiffs to believe
15
that they were safe to continue to purchase tickets for and attend MLB games). See, e.g., FAC, 344.
16
This case is much different from Swartz v. KPMG LLP, a case out of this circuit cited by
17
Defendants. In that case, the allegations were wholly conclusory and did not detail any specific
18
misconduct on the Defendants part. As noted by the court, The complaint is shot through with
19
general allegations that the defendants engaged in fraudulent conduct but attributes specific
20
misconduct only to KPMG and B & W. Swartz v. KPMG LLP, 476 F.3d 756, 765 (9th Cir. 2007).
21
Conclusory allegations that Presidio and DB knew that[KPMG and B & W] were making ... false
22
statements to clients, including Swartz, and thus were acting in concert with [KPMG and B & W] and
23
were acting as agents [of KPMG and B & W] and were active participants in the conspiracy without
24
any stated factual basis are insufficient as a matter of law. Id. Another example of conclusory
25
allegations can be found in Bly-Magee v. California, where broad allegations included no
26
particularized supporting detail (BlyMagee alleged that Lungren concealed the fraudulent
27
submission of false claims ... to avoid repayment of funds to the United States and that Lungren
28
conspired with the CDR and the OAG to defraud the United States by obtaining payment of
010525-11 834358 V1
- 29 -
fraudulent claims.) Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001). Plaintiffs do note
that in these cases the courts still granted leave to amend.
In addition, as detailed below, Defendants fraudulent conduct included many omissions (FAC,
249, 250-252, 260-266, 315). Courts recognize that Rule 9(b) creates different expectations for
omissions claims such as those Plaintiffs detail. See, e.g., Falk v. GMC ([c]learly a plaintiff in a fraud
by omission suit will not be able to specify the time, place and specific content of an omission as
precisely, and therefore a fraud by omission claim can succeed without the same level of specificity
required by a normal fraud claim) 496 F. Supp. 2d 1088, 1098-99 (N.D. Cal. 2007).
2.
10
Plaintiffs allege Defendants concealed a material fact.
Defendants argue Plaintiffs fail to allege Defendants concealed a material fact. MTD 2, pp. 27-
11
30. Plaintiffs allege Defendants intentionally concealed facts and information which were
12
material. FAC, 335. Defendants have previously contended that Plaintiffs claims are
13
conslusory [sic] and bare bones (MTD 1, p. 9) and repeat this position in their Memorandum.
14
However, Plaintiffs detail numerous allegations of concealment of material facts. Plaintiffs alleged
15
Defendants were aware of the risk and severity of injury and had superior knowledge via insurance
16
claims, personal injury lawsuits, player injuries and corresponding records, MLB publications, the
17
existence of foul ball logs, player concerns and scholarly articles and did not disclose this information.
18
FAC, 249, 250-252, 260-266, 315. Defendants failed to disclose the risk (see, e.g., id., 260) to
19
Plaintiffs. Plaintiffs also allege that they (as well as the putative class) looked to Defendants for
20
guidance as Defendants held themselves out as responsible for and responsive to spectator safety issues
21
(id., 313), and that Defendants made false statements and assurances regarding the priority of fan
22
safety (id., 255, 258). Plaintiffs have provided specific quotes, along with citations (see, e.g., id.,
23
255, 258). The FAC includes specific examples of why warnings were fraudulent. Id., 351.
24
It is also not the case that Plaintiffs provide very few allegations about what the Clubs did or
25
did not do. MTD 2, pg. 8. The FAC is rife with allegations against Defendants, which includes the
26
teams.16 In addition there are many other details regarding allegations involving specific teams. The
27
28
16
Plaintiffs do not believe the use of the term Defendants to collectively refer to actions on
behalf of all Defendants, including the teams, in any way minimizes these allegations.
010525-11 834358 V1
- 30 -
FAC details allegations against the Oakland As, the Dodgers and the Charlotte Knights as well as
other teams. FAC, 17-24, 63-70. 85. It includes anecdotal references to and accounts of injuries
caused by the actions of many, many teams. Id., 43, 84-85, 92, 96-244. Also, in addition to the
claim that all teams had knowledge of the risk of injury, the FAC includes specific admissions, such as
one made by the San Francisco Giants, regarding their awareness of liability due to the issue of
serious injuries from errant balls and bats. Id., 45. Also, the FAC details statements from three
individual teams that admitted they had the knowledge to act but rather were looking to other
Defendants for guidance. Id., 257. In addition, the FAC indicates the teams have worked with MLB
to include specific distractions in stadiums, such as WiFi. Id., 78. It includes examples of
10
distractions placed by several teams. Id., 17, 22, 295, 296. It also indicates the players requests for
11
increased netting were denied. Id., 257. Finally, the FAC also notes that one team is increasing the
12
number of seats in the Danger Zone. Id., 323.
13
3.
14
Defendants argue they did not have a duty to disclose. MTD 2, pg. 30-31. A duty to disclose
Plaintiffs allege Defendants had a duty to disclose.
15
exists when the defendant (1) is in a fiduciary relationship with the plaintiff; (2) had exclusive
16
knowledge of material facts not known to the plaintiff; (3) actively conceals a material fact from the
17
plaintiff; or (4) makes partial representations but also suppresses some material fact. In re Toyota
18
Motor Corp. Unintended Acceleration Mktg., Sales Practices & Prods. Liab. Litig., 754 F. Supp. 2d
19
1145, 1172-73 (C.D. Cal. Nov. 30, 2010).
20
Plaintiffs allege that elements (2), (3) and (4) are present. Defendants intentionally concealed
21
facts and information which they had a duty to disclose. FAC, 335. These facts included the risk
22
of spectator injuries and incidence of spectator injuries, that MLB players had demanded netting in the
23
Danger Zone for years, and that fans sitting in the Danger Zone could not reasonably be expected to
24
react quickly enough to protect themselves from a foul ball. Id. Plaintiffs allege Defendants had a duty
25
to protect spectators. See, e.g., id., 255. Plaintiffs allege Defendants made numerous statements
26
regarding this duty (see, e.g., id., 312) and had superior knowledge (id., 260-266) but despite their
27
knowledge and controlling role Defendants made false assurances and misrepresentations, and
28
010525-11 834358 V1
- 31 -
marketed the game as family-friendly and safe. Id., 311. Plaintiffs have adequately demonstrated
that Defendants had a duty to disclose this information.
4.
Plaintiffs allege an intent to defraud with respect to their fraudulent concealment

claims.
4
The Defendants argue Plaintiffs fail to allege intent to defraud. MTD 2, pg. 31. Plaintiffs
5
allege Defendants profited from spectators, including profiting via ticket revenue and from
6
marketing. See, e.g., FAC, 316. Plaintiffs allege Defendants induced a false belief in Plaintiffs
7
to continue to purchase tickets for and attend MLB games. Id., 336. The concealment was
8
achieved via the use of unconscionable warnings and perpetrated a myth that attention was a
9
defense to serious injury and would lead reasonable spectators, including Plaintiffs to rely on these
10
statements and believe the Danger Zone was safe. Id. Plaintiffs allege these acts, including an intent
11
to mislead, were part of a scheme to mislead. Plaintiffs also point to the lagging popularity of
12
baseball (id., 28) and attempts to increase the popularity of the game. See, e.g., id., 77-79.
13
5.
Plaintiffs allege reliance.
14
The Defendants argue Plaintiffs fail to allege reliance. MTD 2, p. 31-32. The FAC describes
15
how the representations were relied upon by Plaintiffs, and why they were material, namely, because
16
they induced a belief in the myth that baseball is safe as long as you pay attention and wholly
17
misrepresented the true nature of the risk, which was not open and obvious to Plaintiffs, spectators or
18
the general public. FAC, 318, 336. Plaintiffs also relied upon the representations and omissions by
19
continuing to purchase tickets for and attend baseball games. Id., 344.
20
6.
Plaintiffs allege damages.
21
Defendants argue Plaintiffs fail to allege with particularity that they have sustained damages.
22
MTD 2, p. 32. Plaintiffs sufficiently pleaded damages. Plaintiff Smith sustained injuries when the foul
23
ball smashed into her ribs. FAC, 24. All Plaintiffs fear for their safety, their loved ones safety, and
24
the safety of others because Defendants in the past and presently fraudulently concealed the risks of
25
injury from attending games. See ,e.g., FAC 17, 20, 22, 24, 25, 331, 337. Furthermore, Defendants
26
acts, omissions, and concealment subject Plaintiffs to a present improper risk of injury which will
27
cause Plaintiffs additional damages in the future. See id.
28
010525-11 834358 V1
- 32 -
Finally, Plaintiffs believe it is inappropriate to resolve fact-intensive allegations of fraudulent
concealment at the motion to dismiss stage, particularly when the proof relating to the extent of the
fraudulent concealment is alleged to be largely in the hands of the alleged conspirators. In re
Capacitors, 2015 U.S. Dist. LEXIS 68615, at *36 (N.D. Cal. May 26, 2015) (quoting In re Cathode
Ray Tube (CRT) Antitrust Litig., 738 F. Supp. 2d 1011, 1024 (N.D. Cal. 2010)).17
E.
Plaintiffs State a Claim for Relief Under the Consumers Legal Remedies Act (Count 4,
FAC).
7
Defendants argue Plaintiffs have failed to state a CLRA claim. MTD 2, p. 33. Contrary to
8
Defendants assertions, Plaintiffs state a claim for relief under the Consumer Legal Remedies Act
9
(CLRA). FAC, 346-351; Cal. Civ. Code 1750, et seq.
10
The CLRA was enacted in 1970 to broadly protect consumers against unfair and deceptive
11
business practices. In enacting the CLRA, the California Legislature clearly expressed that it should be
12
liberally construed and applied to promote its underlying purposes, which are to protect consumers
13
against unfair and deceptive business practices and to provide efficient and economical procedures to
14
secure such protection. Cal. Civ. Code 1760; see Am. Online, Inc. v. Sup. Ct. of Alameda Cnty., 90
15
Cal. App. 4th 1, 15 (2001) (discussing legislative intent that the CLRA be liberally construed and
16
applied); see also Alford v. Pierno, 27 Cal. App. 3d 682, 688 (1972) (In construing a statute, a court
17
should ascertain the intent of the Legislature so as to effectuate the purpose of the law The court
18
should take into account matters such as context, the object in view, the evils to be remedied, the
19
history of the times and of legislation upon the same subject, public policy, and contemporaneous
20
construction.) (internal citations omitted). Both the CLRAs plain and unambiguous statutory
21
language and the legislative intent behind the act point against dismissal of Plaintiffs CLRA claims.
22
Baseball is big business over 73 million spectators attended MLB baseball games last year, 5.7
23
million people use MLBs At Bat phone application every day during the season, and MLB generates
24
25
26
27
28
17
See also, e.g., In re Rubber Chemicals Antitrust Litig., 504 F. Supp. 2d 777, 789 (N.D. Cal.
2007)(same); cf. Waldrup v. Countrywide Fin. Corp., 2015 U.S. Dist. LEXIS, at *8 (C.D. Cal. Jan. 5,
2015) (Consistent with the purpose of Rule 9(b), the Court finds the plaintiff has adequately alleged
fraud since the TAC gives defendants notice of the particular misconduct which is alleged to
constitute the fraud charged so that they can defend against the charge and not just deny that they
have done anything wrong.) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007)).
010525-11 834358 V1
- 33 -
approximately $9,000,000,000 in yearly revenue. FAC, 8, 283. To allow Defendants to insidiously
redraft the CLRA to bar all consumers who purchased tickets to baseball games or to any sporting
event, or event of any kind from seeking redress for unfair and deceptive business practices would
drastically diminish the scope of CLRA a result surely not considered by the drafters and one
certainly not permitted by the plain language of the act.
As detailed below, tickets to MLB games constitute goods as defined in section 1761(a) of
the California Civil Code; Plaintiffs either bought tickets from Defendants or otherwise transacted with
Defendants within the meaning of the CLRA, and Plaintiffs sufficiently alleged both reliance and
injury. For the reasons explained herein, Defendants Motion on this ground should be denied.
10
1.
11
Defendants argue ball game tickets and ball games are neither goods nor services. MTD 2, p.
Ball Game Tickets are Goods or Services that are Subject to the CLRA.
12
33. Defendants correctly observe that violations of the CLRA arise when the claim involves the sale or
13
exchange of a good. Id. But where Defendants go wrong is in their assertion that this case does not
14
involve a good under the CLRA. Id. To the contrary, it does.
15
Under the CLRA, the term goods means tangible chattels bought or leased for use primarily
16
for personal, family, or household purposes, including certificates or coupons exchangeable for these
17
goods. Cal. Civ. Code 1761(a). In assessing the nature of an item as a good, courts have looked
18
to whether the item is tangible and possesses intrinsic value. For instance, in Berry v. American
19
Express Publishing a case cited by Defendants the court considered whether the issuance of a credit
20
card was a transaction intended to result in the sale or lease of goods or services under the CLRA. The
21
Berry Court determined that a credit card was not a good because it had no intrinsic value and
22
exist[ed] only as an indicia of the credit extended to the cardholder. Berry v. American Express, 147
23
Cal. App. 4th 224, 229 (2007). A ticket to an MLB game, unlike a credit card, has independent
24
intrinsic value and is commonly bought and sold on primary and secondary markets, often for a very
25
large sum of money. Indeed, tickets to baseball games, unlike credit cards, are printed with a value on
26
their face, bolstering the fact that they possess inherent worth.
27
28
The courts discussion in Berry further supports that tickets are goods or services. The
court cited the plaintiffs argument that credit constitutes services furnished in connection with the
010525-11 834358 V1
- 34 -
sale of goods because the cardholder may use the credit to purchase goods, and that [a]fter all, a
consumer cannot hire a car, reserve airline tickets, stay in a hotel, or make purchases on the internet
without a credit card. Id. at 230 (emphasis added) (internal quotations omitted). The court concluded
that the CLRAs legislative history, however, does not support that credit, separate and apart from a
specific purchase or lease of a good or service, is covered under the act. Id. (emphasis added). The
Berry Courts reference to airline tickets as separate, purchasable goods patently supports Plaintiffs
position that the tickets at issue in this case are encompassed by the CLRA. See id.
8
9
Defendants also suggest that a ticket is an intangible, revocable license to attend a game.
MTD 2, p. 33. As discussed above, a ticket is much more than a license to enter; it is a freestanding,
10
tangible item that can be bought and sold, and has independent, intrinsic value. The two cases cited by
11
Defendants in support of this position, Williamson v. McAfee, Inc., 2014 U.S. Dist. LEXIS 117565
12
(N.D. Cal. Aug. 22, 2014), and In re Sony Gaming Networks & Customer Data Sec. Breach Litigation,
13
903 F. Supp. 2d 942, 972 (S.D. Cal. 2012), involve software licenses, which are not traditionally
14
bought or sold, nor are they ordinarily considered freestanding items separate from the accompanying
15
software. Nevertheless, in Ladore v. Sony Computer Entmt Am., LLC, 75 F. Supp. 3d 1065, 1073
16
(N.D. Cal. 2014), this Court recently rejected technology-giant Sonys claim that a video game (which
17
it contended was a software license) was not a good. This Court cited Judge Tigars opinion that [a]
18
consumer can purchase Norton Antivirus in a store, pick it up in her hands, and carry it home. It is in
19
that way the same as most commodities considered to be goods under the CLRA, and distinct from
20
the sorts of commodities that are considered not to be, such as insurance or credit contracts. Ladore,
21
75 F. Supp. 3d at 1073 (citing Haskins v. Symantec Corp., 2013 U.S. Dist. LEXIS 169865 (N.D. Cal.
22
Dec. 2, 2013)). This logic compels a similar conclusion in this case. Consumers can purchase tickets
23
at physical ticket kiosks located at the stadiums themselves, pick them up in their hands, and carry
24
them home. Thus, even assuming ball game tickets were akin to software licenses, they constitute
25
goods within CLRAs purview.
26
27
28
In addition, to the extent Defendants believe the focus of inquiry should be on the MLB
games and not the tickets themselves [MTD 2, n.35], the CLRA, at Cal. Civ. Code 1761(b), defines
services as work, labor and services for other than a commercial or business use. MLBs games
010525-11 834358 V1
- 35 -
are plainly entertainment services and MLB itself says so, at least with respect to live broadcasted
games. In a service mark registration for MLB, MLB identifies MLB as Goods and Services
including baseball games, competitions and exhibitions rendered live, through broadcast media
including television and radio.18
2.
Defendants next, rather ironically, attempt to convince the Court that the CLRA does not apply
The CLRA Governs the transactions at issue.
because there is no direct agreement between a consumer and the defendant (or the defendants
agents). MTD 2, p. 34. This argument contradicts Defendants earlier contention that the ticket
creates an agreement with the ticket holder that he or she assumes the risk of attending ball games.
10
MTD 2, pp. 4-5, 20-21. Defendants cannot have their proverbial cake and eat it too. By relying on the
11
language on the back of the tickets, which Defendants attach as an exhibit to their memorandum,
12
Defendants concede that an agreement existed between the ticket holder and Defendants, which is
13
sufficient for purposes of the CLRA. Cal. Civ. Code 1761(e).
14
Defendants position is antithetical to Defendants other arguments and incompatible with the
15
law. Defendants argue that the CLRA requires Defendants to directly participate in a transaction with
16
the Plaintiffs to trigger liability under the CLRA. In so doing, Defendants attempt to divorce the word
17
transaction from its appropriate context within the CLRA. The CLRA governs deceptive actions
18
from a transaction intended to result or which results in the sale or lease of goods or services to any
19
consumer. Cal. Civ. Code 1770(a) (emphasis added). Arguments like that advanced by Defendants
20
have been thoughtfully considered and rejected by a number of courts, including this one. See, e.g.,
21
Chamberlan v. Ford, 369 F. Supp. 2d 1138, 1144 (N.D. Cal. 2005) (holding that plaintiffs had CLRA
22
standing despite the fact that they never entered into a transaction directly with Defendant). It is well
23
established that a cause of action under the CLRA may be established independent of any contractual
24
25
26
27
28
18
See U.S. Patent and Trademark Office website, registrations searchable at

http://tmsearch.uspto.gov/trademark, page http://tmsearch.uspto.gov/bin/showfield?
f=doc&state=4803:wvgg7g.4.43 regarding MLB. MLB is marked under Class 41, which includes
services having the basis aim of the entertainment, amusement or recreation of people.
http://www.uspto.gov/trademark/trademark-updates-and-announcements/nice-agreement-tenthedition-general-remarks-class. Plaintiffs request the Court to take judicial notice of this fact. See
Plaintiffs Motion for Judicial Notice, Exhibit 1 and Exhibit 1B.
010525-11 834358 V1
- 36 -
relationship between the parties. McAdams v. Monier, Inc., 182 Cal. App. 4th 174, 186 (2010). The
modifying phrase intended to result or which results in the sale or lease of goods or services to any
consumer means that the transaction need not be a direct one between the consumer and the alleged
violator, and the California legislature intended the statute, which is to be liberally construed, to cover
a wide range of business activities. Murray v. Motorola, Inc., 2011 D.C. Super. LEXIS 3, at *62
(D.C. Super. July 14, 2011) (quoting Chamberlan v. Ford Motor Co., 2003 U.S. Dist. LEXIS 27912, at
*19-22 (N.D. Cal. Aug. 6, 2003)); see also Keilholtz v. Super. Fireplace Co., 2009 U.S. Dist. LEXIS
30732, at *9 (N.D. Cal. Mar. 30, 2009). Numerous cases have proceeded under the CLRA where the
plaintiff purchased the item from some intermediary. See, e.g., McAdams, 182 Cal. App. 4th at 186;
10
see also In re NVIDIA GPU Litig., 2009 U.S. Dist. LEXIS 108500, at *4 (N.D. Cal. Nov. 19, 2009).
11
Each of these cases recognizes the broad application of the CLRA.19
12
3.
13
Defendants argue Plaintiffs fail to allege reliance or injury. MTD 2, p. 35-37. Plaintiffs
14
sufficiently allege both reliance and injury. Plaintiffs allege the time, place, and specific content of the
15
false representations as required by Rule 9(b). Supra Part D. Additionally, Plaintiffs expressly
16
incorporated by reference all allegations of the preceding paragraphs as though fully set forth herein
17
on behalf of the California subclass. FAC, 346. Numerous paragraphs in the FAC allege Plaintiffs
18
detrimentally relied on Defendants misconduct. See, e.g., id. 336 (Defendants induced a false
19
belief in Plaintiffs and spectators who justifiably relied on such statements and believed that they were
20
safe to continue to purchase tickets for and attend MLB games, and continue to sit in and bring their
21
minor children to exposed areas of the ballpark between the foul poles.); id., 342 (These acts and
22
practices have deceived Plaintiffs and the putative Class and are likely to deceive the public.
23
Defendants violations of the UCL caused injuries to Plaintiffs and Class members.); id., 344
Plaintiffs allege that they relied on Defendants misconduct and suffered injury.
24
25
26
27
28
19
Defendants also incorrectly contend that Plaintiff Gorman did not purchase tickets from a
Defendant. MTD 2, p. 34. As discussed above, Plaintiffs FAC makes clear that Plaintiff Gorman
acquired tickets from the Charlotte Knights. FAC, 19, 350. The FAC additionally makes clear
that Major League Baseball also includes the minor leagues the organization also oversees minorleague baseball leagues, which comprise about 240 teams affiliated with the major-league clubs.
Id., 253. Accordingly, Plaintiff Gorman did purchase tickets directly from a Defendant, though
such purchase is not required for a claim under the CLRA.
010525-11 834358 V1
- 37 -
(Defendants representations and acts as set out above were justifiably relied upon by Plaintiffs and
induced Plaintiffs and others similarly situated to continue to purchase tickets for and attend MLB
games.); id., 351 (Plaintiffs relied on these representations and were injured as a result.). As
Plaintiffs alleged reliance and injury with specificity, Defendants motion should be denied.
F.
Plaintiffs State a Claim for Relief Under Californias Unfair Competition Law.20 (Count
3, FAC)
6
Defendants argue Plaintiffs have failed to state a claim under Californias Unfair Competition
7
Law. MTD 2, p. 37. Just as Plaintiffs have stated a claim for relief under the CLRA, they have stated
8
a claim for relief under Californias Unfair Competition Law (UCL). See supra Section E.
9
Generally, the standard for deceptive practices under the fraudulent prong of the UCL applies equally
10
to claims for misrepresentation under the CLRA and for this reason, courts frequently analyze the two
11
statutes together. See Paduano v. Am. Honda Motor Co., Inc., 169 Cal. App. 4th 1453, 1468-73 (2009)
12
(analyzing UCL and CLRA claims together). Under the UCLs unlawful prong, violations of other
13
laws are borrowed and made independently actionable under the UCL. Herron v. Best Buy Co., Inc.,
14
924 F. Supp. 2d 1161, 1177 (E.D. Cal. 2013). CLRA violations may serve as the predicate offense for
15
unlawful business practice actions under the UCL. Collins v. Emachines, Inc., 202 Cal. App. 4th
16
249, 258 (2011). Since Plaintiffs have pled a CLRA claim against Defendants, Plaintiffs state a claim
17
under the UCL against Defendants as well. See supra Section E; see also Herron, 924 F. Supp. 3d at
18
1177 (Since Plaintiff has pled a CLRA claim against Best Buy, see supra, Plaintiff states a claim for
19
unlawful conduct under the UCL against Best Buy as well.).
20
21
G.
Plaintiffs are Entitled to Allege Facts Related to Defendants Violations of Cal. Civ. Code
1668 (Count 5, FAC)
22
Defendants argue Plaintiffs fail to state a claim under Californias Civil Code 1668 because
23
no such cause of action exists. MTD 2, pp. 37-39. Defendants once again overlook the whole of
24
Plaintiffs pleadings in suggesting these allegations should be struck. Defendants fail to cite any cases
25
26
27
28
20
Defendants contend that Plaintiff Gormans California law claims should be dismissed because
a South Carolina plaintiff suing over conduct related to a North Carolina Minor League Club cannot
seek the protection of a California statute. MTD 2, p. 38, nn.38 & 39. Defendants conveniently
overlook the facts that Plaintiff Gorman is one of the class representatives for the Nationwide class,
which includes California class members, and that Plaintiffs alleged that MLB both includes and
oversees the minor leagues. FAC, 253.
010525-11 834358 V1
- 38 -
in support of their contentions that there is no such cause of action under California law and that no
court, in California or elsewhere has ever implied such a cause of action under the statute. MTD 2,
p. 38. Even if 1668 is not an independent cause of action, the allegations in this section of the FAC
are clearly relevant to rebut defenses Defendants may raise to Plaintiffs claims, and the provisions of
this section of the FAC were unquestionably incorporated into Plaintiffs other causes of action. See
FAC, 308, 333, 337, 345, 351. Defendants should not be permitted to elevate form over substance
to strike the allegations contained within paragraphs 351-353 of Plaintiffs FAC even if this Court
determines that 1668 does not provide an independent cause of action. See Fed. R. Civ. P. 8(e)
(Pleadings must be construed so as to do justice.).21
10
Defendants are wrong in asserting that they have not violated 1668. This section provides
11
that [a]ll contracts which have for their object, directly or indirectly, to exempt anyone from
12
responsibility for his own fraud, or willful injury to the person or property of another, or violation of
13
law, whether willful or negligent, are against the policy of the law. Cal. Civ. Code 1668.
14
Traditionally the law has looked carefully and with some skepticism at those who attempt to contract
15
away their legal liability for the commission of torts. Gardner v. Downtown Porsche Audi, 180 Cal.
16
App. 3d 713, 716 (1986). Defendants admit 1668 invalidates contracts exempting liability for
17
fraudulent or intentional actions, negligent violations of statutory law, and ordinary negligence
18
implicating the public interest. MTD 2, p. 3822. Plaintiffs have alleged conduct within all three areas.
19
FAC, 334-337 (fraudulent concealment), 346-354 (statutory violations); and 309-334 (negligence).
20
None of the cases Defendants cite for support that exculpatory agreements in the recreational
21
sports context do not implicate the public interest and therefore are not void [under 1668] involve
22
23
24
25
26
27
28
21
The general pleading standard contained in Fed. R. Civ. P. 8 applies to Plaintiffs non-fraudbased claims. Fed. R. Civ. P. 9(b) furnishes the pleading standard for Plaintiffs fraud-based claims,
but nothing in this Rule would support striking the allegations contained in paragraphs 351-353 of
Plaintiffs Amended Complaint. To the contrary, these paragraphs provide greater specificity for all
of Plaintiffs claims, including those governed by Fed. R. Civ. P. 9(b).
22
See also Health Net of Ca., Inc. v. Dept of Health Servs., 113 Cal. App. 4th 224, 234 (2003) (It
is now settled and in full accord with the language of the statute that notwithstanding its different
treatment of ordinary negligence, under section 1668, a party [cannot] contract away liability for his
fraudulent or intentional acts or for his negligent violations of statutory law, regardless of whether the
public interest is affected.) (quoting Gardner, 180 Cal. App. 3d at 716) (citations in original)).
010525-11 834358 V1
- 39 -
spectators to professional sports games. MTD 2, p. 39.23 Nor are the examples comparable given the
sheer numbers of people affected by Defendants conduct. See FAC, 1 (Each year, tens of millions
of men, women, and children in the U.S. attend a Major League Baseball game.); id. (over a
thousand preventable injuries per season); id. (Every year, a growing number of fans, of all ages but
often children, suffer often horrific and preventable injuries.); see also Westlye, 17 Cal. App. 4th at
1733-34 (emphasizing that the number of affected individuals is important to the public interest query).
H.
Smiths Personal Injury Claims Should Not Be Dismissed (Count 6, FAC)
8
9
Defendants argue Plaintiffs fail to state a claim for personal injury. MTD 2, p. 39-40. Plaintiffs
allege Defendants negligence and failure to erect proper safety netting put Smith at risk, caused her
10
injuries, and seek damages for her injuries. FAC, 25, 28, 355 . Given that the Court must construe
11
the complaint in the light most favorable to the plaintiff, taking all her allegations as true and drawing
12
all reasonable inferences from the complaint in her favor, the complaint should not be dismissed
13
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
14
would entitle him to relief. Doe, 419 F.3d at 1062 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.
15
Ct. 99 (1957). Plaintiffs ask that Ms. Smiths claims for negligence resulting in personal injury not be
16
dismissed.
17
VI.
18
CONCLUSION
For all the reasons above, none of the grounds for Defendants Motion to Dismiss are well-
19
taken. Plaintiffs respectfully request that this Court deny Defendants Motion to Dismiss Plaintiffs
20
First Amended Class Action Complaint in its entirety. In the alternative, Plaintiffs respectfully request
21
leave to amend.
22
23
24
25
26
27
28
23
Capri v. L.A. Fitness Ints, LLC, 136 Cal. App. 4th 1078, 1084 (2006) ,involved a fitness club
member suing the club for injuries incurred when he slipped and fell on the clubs pool deck.
Benedek v. PLC Santa Monica, 104 Cal. App. 4th 1351, 1356-57 (2002), involved a member of a
health club suing the club when the member was injured after he attempted to reposition a television.
In Lund v. Ballys Aerobic Plus, Inc., 78 Cal. App. 4th 733, 735-36 (2000), a woman sued her health
club after she was injured using weight lifting equipment. In Allan v. Snow Summit, Inc., 51 Cal.
App. 4th 1358, 1363 (2002), the plaintiff sued the ski school after suffering injuries during a ski
lesson. Lastly, in Randas v. YMCA of Metro. L.A., 17 Cal. App. 4th 158, 160 (1993), the plaintiff,
who was enrolled in a swimming class at the YMCA, sued the YMCA after she slipped and fell on a
wet poolside tile. In each of the foregoing cases, the plaintiffs were participants rather than
spectators.
010525-11 834358 V1
- 40 -
DATED: December 14, 2015
2
By
/s/ Steve W. Berman

STEVE W. BERMAN (Pro Hac Vice)
Anthea Grivas (Pro Hac Vice)
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
steve@hbsslaw.com
antheag@hbsslaw.com
3
4
5
6
7
8
Robert Hilliard (Pro Hac Vice)

Marion M. Reilly (Pro Hac Vice)
HILLIARD MUOZ GONZALES L.L.P.
719 S. Shoreline Blvd., Suite #500
Corpus Christi, TX 78401
Telephone: (361) 882-1612
Facsimile: (361) 882-3015
bobh@hmglawfirm.com
marion@hmglawfirm.com
9
10
11
12
13
Jeff D. Friedman (173886)

Jon T. King (205073)
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
jefff@hbsslaw.com
jonk@hbsslaw.com
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Counsel for Plaintiffs Gail Payne, Robert Gorman and

Stephanie Smith
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010525-11 834358 V1
- 41 -

Payne v. Office of The Commissioner of Baseball - Motion To Dismiss Opposition

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Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 1 of 51

Steve W. Berman (Pro Hac Vice)

Counsel for Plaintiffs Gail Payne,

[Additional Counsel on Signature Page]

NORTHERN DISTRICT OF CALIFORNIA

GAIL PAYNE, ROBERT GORMAN, and

January 12, 2016

Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 2 of 51

ROCKIES, THE LOS ANGELES DODGERS,

Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 3 of 51

STATEMENT OF RELEVANT ALLEGATIONS .................................................................3

PROCEDURAL HISTORY .....................................................................................................6

STANDARD OF REVIEW .....................................................................................................7

Standard of Review for Federal Rule of Civil Procedure 12(b)(1) ...............................7

Standard of Review for Federal Rule of Civil Procedure 12(b)(2) ...............................7

Standard of Review for Federal Rule of Civil Procedure 12(b)(3) ...............................8

Standard of Review for Federal Rule of Civil Procedure Rule

Plaintiffs Have Standing to Assert Their Claims for Negligence

Plaintiffs have standing to assert their claims for negligence. ..........................9

Plaintiffs have adequately pled an Injury in Fact that

Plaintiffs adequately allege concrete and

Plaintiffs adequately allege actual and

Plaintiffs have established a direct causal

Plaintiffs have established there is a

Plaintiffs also believe the state of being at

Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 4 of 51

Plaintiffs have standing to assert their Fraudulent

Plaintiffs have adequately alleged injury in fact and

Plaintiffs Have Personal Jurisdiction Over Defendants and Venue Is

The Court has personal jurisdiction over the Out-of-State

The applicable legal standard supports a finding that

The Out-of-State Clubs continuously and

The claims also arise out of Defendants contacts

Venue is proper in the Northern District of California

Plaintiffs Properly Stated Their Negligence Claims (Count 1, FAC) .........................22

Plaintiffs properly pleaded Defendants duty. ................................................23

Defendants failed to comply with their duty to

Plaintiffs cannot assume risks of which they are not

Defendants cannot increase the risk of injuries by

Plaintiffs properly pleaded breach and causation............................................26

Plaintiffs properly pleaded injury. ..................................................................27

Plaintiffs Have Stated a Claim for Fraudulent Concealment (Count

Plaintiffs have alleged Fraudulent Concealment with

Plaintiffs allege Defendants concealed a material fact. ...................................30

Plaintiffs allege Defendants had a duty to disclose. ........................................31

Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 5 of 51

Plaintiffs allege an intent to defraud with respect to their

Plaintiffs allege reliance. ................................................................................32

Plaintiffs State a Claim for Relief Under the Consumers Legal

Ball Game Tickets are Goods or Services that are Subject to

The CLRA Governs the transactions at issue. ................................................36

Plaintiffs allege that they relied on Defendants misconduct

Plaintiffs State a Claim for Relief Under Californias Unfair

Plaintiffs are Entitled to Allege Facts Related to Defendants

Smiths Personal Injury Claims Should Not Be Dismissed (Count 6,

Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 6 of 51

Carrico v. City & Cnty. of San Francisco,

Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 7 of 51

Clapper v. Amnesty Intl, USA,

Doe v. United States,

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

Case 4:15-cv-03229-YGR Document 53 Filed 12/14/15 Page 8 of 51

Herron v. Best Buy Co., Inc.,