Recent Cases Summer 2019 Defense Comment vii SUMMARY JUDGMENT; EXPERTS Sonner v. Schwabe North America, Inc. (2018) 911 F.3d 989 FACTS: Plaintiff sued defendant for false advertising under the Unfair Competition Law (UCL) and the Consumers Legal Remedies Act (CLRA). Specifically, plaintiff claimed that a nutritional supplement manufactured by defendant was worthless in providing cognitive improvement or in preventing decline of cognitive functions. Defendant filed a summary judgment motion, including expert declarations, indicating studies, research, etc., indicating that cognitive improvement was provided. Plaintiff filed papers in opposition, including clinical studies to indicate that no cognitive benefits were provided by defendant’s product. The U.S. District Court granted summary judgment in favor of defendant. NINTH CIRCUIT DECISION: Reversed. When suing undertheUCLandCLRA,thereisnodifferentstandard for summary judgment. The party moving for summaryjudgmenthastheburden;althoughplaintiff under these circumstances must duly show there is a triable issue of fact. Plaintiff has done this by filing his ownexpertdeclarationsandotherevidenceindicating that whether cognitive benefits were provided is a material dispute of fact. Summary judgment should have been denied. DUTY; ASSUMPTION OF THE RISK DEFENSE; WATER POLO Mayall on Behalf of H.C. v. USA Water Polo, Inc. (2018) 909 F.3d 1055 FACTS: Plaintiff, a young girl, was on a youth water polo team controlled by an organization called USA Water Polo. Plaintiff was a goalie. During a game, she was hit hard in the head and was “dazed.” She was not taken out of the game for evaluation, but sent back in to play. She played several more games that day and was also hit in the head. Later, she suffered concussion-related injuries and she sued USA Water Polo. The district court held that there was no duty owedtotakeplaintiffoutofthegameandthatplaintiff had assumed the risk. NINTH CIRCUIT DECISION: Reversed. Firstly, with respect to adults and the national water polo team, the defendant USA Water Polo had to go up to a “Return-to-Play” protocol which was designed to deal with players who suffered possible concussions. They are supposed to be removed from play and evaluated and not returned to play until they were deemed okay, even by a medical examination. The fact that defendant used such a protocol with adults, but did not do so here with youths, undermines the contention that there was no duty. The assumption of the risk defense does not apply because the complaint is not about the initial blow to the head – the complaint alleges that despite a concussion-like injury, plaintiff was ordered to continue playing and that was the wrongful act that led to her later injuries. Plaintiff adequately stated a claim for relief. DISCRIMINATION; § 1981 National Association of African American-Owned Media v. Charter Communications, (2019) 915 F.3d 617 FACTS: Plaintiff is the National Association of Black Broadcasters. They sought to make a contract with defendant, a cable distribution company, but were refused. Plaintiff sued defendant claiming discrimination under § 1981, which guarantees the right to contract and forbids discrimination in the granting of contractual rights. The district court denied defendant’s motion to dismiss, largely based upon First Amendment grounds. NINTH CIRCUIT DECISION: Affirmed. The principal argument advanced by the defendant is that plaintiff must demonstrate that racial discrimination was the “motivating factor” in the decision. But under Ninth Circuit law in California, racial discrimination is simply required to be a factor in the decision, and that is enough to state a claim. Therefore, the motion to dismiss was properly denied. NINTH CIRCUIT CASES