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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

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

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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

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

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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6
A.

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

B.

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

C.

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

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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2.

1
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. ..................................18

a.

Plaintiffs have adequately alleged injury in fact and


redressability. .....................................................................................18

b.

Redressability .....................................................................................19

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5
B.
6

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

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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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TABLE OF AUTHORITIES

Page(s)

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CASES

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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

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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

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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

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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

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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
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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

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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

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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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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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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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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

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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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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

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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

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Cal. Civ. Code 1770(a) ..................................................................................................................... 36

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OTHER AUTHORITIES

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

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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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.
PLS. MEMORANDUM OF POINTS AND
AUTHORITIES IN OPP. TO MOT. TO DISMISS
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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.

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II.

STATEMENT OF RELEVANT ALLEGATIONS

Plaintiffs have sued The Office of the Commissioner of Baseball (d/b/a Major League

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Baseball), Commissioner Rob Manfred and the thirty major league teams, alleging Plaintiffs have been

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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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PLS. MEMORANDUM OF POINTS AND
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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

10

foul ball. Id. The ball broke her ribs. Id. She suffered a 10-15% collapsed lung and experiences

11

constant pain in her ribs. Id. The Dodgers claimed they were not liable for her injuries, and as a result,

12

she has incurred significant personal medical expenses. Id.

13

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

15

fly into the stands, injury cannot be avoided by paying attention. This lack of understanding and

16

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.
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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.
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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.
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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

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


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).
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C.

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

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
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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
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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;
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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.
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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
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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.
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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.
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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.
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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).
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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
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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
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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
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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
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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.

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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
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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
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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.
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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.
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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.
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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
PLS. MEMORANDUM OF POINTS AND
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(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
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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
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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.
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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
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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
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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)).
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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
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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
PLS. MEMORANDUM OF POINTS AND
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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.
PLS. MEMORANDUM OF POINTS AND
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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.
PLS. MEMORANDUM OF POINTS AND
AUTHORITIES IN OPP. TO MOT. TO DISMISS
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(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.
PLS. MEMORANDUM OF POINTS AND
AUTHORITIES IN OPP. TO MOT. TO DISMISS
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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)).
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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.
PLS. MEMORANDUM OF POINTS AND
AUTHORITIES IN OPP. TO MOT. TO DISMISS
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DATED: December 14, 2015

HAGENS BERMAN SOBOL SHAPIRO LLP

2
By

/s/ Steve W. Berman


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

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4
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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

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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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PLS. MEMORANDUM OF POINTS AND
AUTHORITIES IN OPP. TO MOT. TO DISMISS
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