1 Motion To Dismiss or To Compel Arbitration Case No. 2-20-Cv-03643-Dsf (Jemx) 1388634

Case 2:20-cv-03643-DSF-JEM Document 78 Filed 07/29/20 Page 1 of 38 Page ID #:1013
1 KEKER, VAN NEST & PETERS LLP

JOHN W. KEKER - # 49092
2 [email protected]
R. ADAM LAURIDSEN - # 243780
3 [email protected]
BENJAMIN D. ROTHSTEIN - # 295720
4 [email protected]
BAILEY W. HEAPS - # 295870
5 [email protected]
633 Battery Street
6 San Francisco, CA 94111-1809
Telephone: 415 391 5400
7 Facsimile: 415 397 7188
8 Attorneys for Defendants ATHLETICS INVESTMENT
GROUP LLC and SAN FRANCISCO BASEBALL
9 ASSOCIATES L.P.
10
UNITED STATES DISTRICT COURT
11
CENTRAL DISTRICT OF CALIFORNIA
12
13 WESTERN DIVISION
14 MATTHEW AJZENMAN; SUSAN Case No. 2-20-cv-03643-DSF (JEMx)
TERRY-BAZER; BENNY WONG;
15 ALEX CANELA; JEREMY NOTICE OF MOTION AND
WOOLLEY; AMANDA WOOLLEY; MOTION TO DISMISS OR, IN THE
16 ANNE BERGER; CATHEY ALTERNATIVE, TO COMPEL
MATTINGLY; BLAKE WOLLAM; ARBITRATION, ON BEHALF OF
17 and KRYSTAL MOYER, on behalf of ATHLETICS INVESTMENT
themselves, and all others who are GROUP LLC AND SAN
18 similarly situated, FRANCISCO BASEBALL
ASSOCIATES L.P.
19 Plaintiffs,
MEMORANDUM OF POINTS AND
20 v. AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS OR TO
21 OFFICE OF THE COMMISSIONER COMPEL ARBITRATION
OF BASEBALL, an unincorporated
22 association doing business as MAJOR Date: October 5, 2020
LEAGUE BASEBALL; ROBERT D. Time: 1:30 p.m.
23 MANFRED, JR.; AZPB LIMITED Ctrm: 7D
PARTNERSHIP; AZPB I, INC; Judge: Hon. Dale S. Fischer
24 ATLANTA NATIONAL LEAGUE
BASEBALL CLUB INC.; ATLANTA
25 NATIONAL LEAGUE BASEBALL Date Filed: April 20, 2020
CLUB, LLC; BALTIMORE ORIOLES
26 LIMITED PARTNERSHIP; Trial Date: None set
BALTIMORE ORIOLES INC.;
27 BALTIMORE BASEBALL CLUB
INC.; BOSTON RED SOX
28 BASEBALL CLUB LIMITED
PARTNERSHIP; FENWAY SPORTS
1
MOTION TO DISMISS OR TO COMPEL ARBITRATION
Case No. 2-20-cv-03643-DSF (JEMx)
1388634
1 GROUP LLC; NEW ENGLAND

SPORTS VENTURES, LLC;
2 CHICAGO CUBS BASEBALL CLUB,
LLC; CHICAGO WHITE SOX LTD.;
3 CHISOX CORP.; THE CINCINNATI
REDS, LLC; CLEVELAND INDIANS
4 BASEBALL COMPANY LP;
COLORADO BASEBALL
5 PARTNERSHIP; COLORADO
ROCKIES BASEBALL CLUB, LTD.;
6 OLYMPIA ENTERTAINMENT, INC.;
DETROIT TIGERS, INC.; CRANE
7 CAPITAL GROUP; HOUSTON
ASTROS INC.; HOUSTON ASTROS
8 LLC; KANSAS CITY ROYALS
BASEBALL CORP.; KANSAS CITY
9 ROYALS BASEBALL CLUB, INC.;
ANGELS BASEBALL LP; MORENO
10 BASEBALL LP; GUGGENHEIM
BASEBALL MANAGEMENT LLC;
11 LOS ANGELES DODGERS, INC.;
MIAMI MARLINS L.P.; MIAMI
12 MARLINS, INC.; MILWAUKEE
BREWERS BASEBALL CLUB, INC.;
13 MILWAUKEE BREWERS
HOLDINGS LLC; MINNESOTA
14 TWINS, LLC; STERLING
DOUBLEDAY ENTERPRISES LP;
15 METS PARTNERS INC.; NEW
YORK YANKEES PARTNERSHIP;
16 YANKEE GLOBAL ENTERPRISES
LLC; ATHLETICS INVESTMENT
17 GROUP LLC.; PHILLIES LP;
PITTSBURGH ASSOCIATES LP;
18 PITTSBURGH BASEBALL, INC.;
PADRES, L.P.; SAN FRANCISCO
19 BASEBALL ASSOCIATES L.P.; THE
BASEBALL CLUB OF SEATTLE
20 LLLP; BASEBALL OF SEATTLE
INC.; ST. LOUIS CARDINALS LLC;
21 ST. LOUIS NATIONAL BASEBALL
CLUB INC.; TAMPA BAY RAYS
22 LTD.; RANGERS BASEBALL
EXPRESS LLC; ROGERS BLUE
23 JAYS BASEBALL PARTNERSHIP;
TORONTO BLUE JAYS BASEBALL
24 LTD; WASHINGTON NATIONALS
BASEBALL CLUB LLC;
25 TICKETMASTER LLC; LIVE
NATION WORLDWIDE, INC.; LIVE
26 NATION ENTERTAINMENT, INC.;
STUBHUB, INC.; LAST MINUTE
27 TRANSACTIONS, INC.; and JOHN
DOE CORPORATIONS 1-75,
28
2
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1
Defendants.
2
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1388634
1 TABLE OF CONTENTS
2 Page
3
4
I. BACKGROUND ........................................................................................... 14
5
A. COVID-19 and the 2020 Baseball Season.......................................... 14
6
B. The Athletics ....................................................................................... 16
7
C. The Giants ........................................................................................... 17
8
II. ARGUMENT ................................................................................................ 19
9
A. The Court Lacks Subject-Matter Jurisdiction. .................................... 19
10
B. The Claims Are Subject to Mandatory Arbitration ............................ 22
11
1. Wong’s Claims Against the A’s Are Governed by the A’s
Arbitration Agreement. ............................................................. 23
12 2. Wong’s Claims Against the Giants Are Governed by the
13
SFGiants.com Terms, Which Delegate Questions of
Arbitrability to the Arbitrator. .................................................. 25
14 3. The Court Should Order Arbitration of All Claims
15
Against the A’s and Giants and Dismiss this Action. .............. 31
16
C. The Claims Must Be Dismissed for Failure to State a Claim. ............ 32
17
1. Count 1 Fails to State a Claim under the CLRA. ..................... 32
18
2. Counts 2 and 3 Fail to State a Claim Under the UCL. ............. 35
19
3. Counts 4 and 5 Fail to State Claims for Common-Law
Civil Conspiracy and Unjust Enrichment. ................................ 37
20 III. CONCLUSION ............................................................................................. 37
21
22
23
24
25
26
27
28
4
1388634
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4
Anderson v. SeaWorld Parks & Entm’t, Inc.,
5 No. 15-CV-02172-JSW, 2016 WL 8929295 (N.D. Cal. Nov. 7,
2016) ............................................................................................................. 33, 34
6
7 Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ............................................................................................. 20
8
AT&T Mobility LLC v. Concepcion,
9
563 U.S. 333 (2011) ........................................................................................... 24
10
Ballin v. Russ Bassett Corp.,
11 No. 17-CV-3981 PSG, 2017 WL 10527368 (C.D. Cal. Dec. 6,
12 2017) ............................................................................................................. 20, 21
13 Bassett v. Elec. Arts Inc.,
No. 13-CV-04208(MKB)(SMG), 2015 WL 1298644 (E.D.N.Y.
14
Feb. 9, 2015) ....................................................................................................... 25
15
Belton v. Comcast Cable Holdings, LLC,
16 151 Cal. App. 4th 1224 (2007) ........................................................................... 25
17
Biggs v. Bank of Am. Corp.,
18 No. EDCV 15-00267-VAP, 2015 WL 3465739 (C.D. Cal. June 1,
19
2015) ................................................................................................................... 33
20 Bloom v. ACT, Inc.,

No. CV 18-6749-GW(SSx), 2018 WL 6163128 (C.D. Cal. Oct. 24,
21 2018) ................................................................................................................... 29
22
Boris v. Wal-Mart Stores,
23 35 F. Supp. 3d 1163 (C.D. Cal. 2014) ................................................................ 36
24 Boys Club of San Fernando Valley, Inc. v. Fid. & Deposit Co.,
25 6 Cal. App. 4th 1266 (1992) ............................................................................... 28
26 Brennan v. Opus Bank,
27 796 F.3d 1125 (9th Cir. 2015) ..................................................................... passim
28
5
1388634
1 Cal. State Auto. Ass’n Inter-Ins. Bureau v. Barrett Garages, Inc.,

2 257 Cal. App. 2d 71 (1967) ................................................................................ 26
3 Campbell-Ewald Co. v. Gomez,

136 S. Ct. 663 (2016) ......................................................................................... 20
4
5 Chen v. Allstate Ins. Co.,

819 F.3d 1136 (9th Cir. 2016) ............................................................................ 20
6
Chiron Corp. v. Ortho Diagnostic Sys., Inc.,
7
207 F.3d 1126 (9th Cir. 2000) ............................................................................ 31
8
Circuit City Stores, Inc. v. Adams,
9 279 F.3d 889 (9th Cir. 2002) .............................................................................. 23
10
Cordas v. Uber Techs., Inc.,
11 228 F. Supp. 3d 985 (N.D. Cal. 2017) ......................................................... 29, 30
12 Durell v. Sharp Healthcare,
13 183 Cal. App. 4th 1350 (2010) ........................................................................... 35
14 Eisen v. Porsche Cars N. Am., Inc.,
No. CV 11-9405 CAS, 2012 WL 841019 (C.D. Cal. Feb. 22, 2012) ................ 34
15
16 Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ....................................................................................... 31
17
18
In re Facebook Biometric Info. Privacy Litig.,
185 F. Supp. 3d 1155 (N.D. Cal. 2016) ............................................................. 27
19
Fairbanks v. Super. Ct.,
20 46 Cal. 4th 56 (2009) .................................................................................... 33, 34
21
First Options of Chi., Inc. v. Kaplan,
22 514 U.S. 938 (1995) ......................................................................... 13, 26, 32, 35
23 Gountoumas v. Giaran, Inc.,
24 No. CV 18-7720-JFW(PJWx), 2018 WL 6930761 (C.D. Cal. Nov.
21, 2018) ............................................................................................................. 30
25
26 Graham v. Bank of Am., N.A.,

226 Cal. App. 4th 594 (2014) ............................................................................. 36
27
Green Tree Fin. Corp.-Ala. v. Randolph,
28
531 U.S. 79 (2000) ............................................................................................. 23
6
1388634
1 Guadagno v. E*Trade Bank,

2 592 F. Supp. 2d 1263 (C.D. Cal. 2008) .............................................................. 27
3 Hall v. Sea World Entm’t, Inc.,

No. 3:15-CV-660-CAB-RBB, 2015 WL 9659911 (S.D. Cal. Dec.
4
23, 2015) ............................................................................................................. 34
5
Henry Schein, Inc. v. Archer & White Sales, Inc.,
6 139 S. Ct. 524 (2019) ................................................................................... 22, 29
7
Holl v. United Parcel Serv., Inc.,
8 No. 16-cv-05856-HSG, 2017 WL 11520143 (N.D. Cal. Sept. 18,
2017) ................................................................................................................... 28
9
10 In re Holl,
925 F.3d 1076 (9th Cir. 2019) ............................................................................ 28
11
Iezza v. Saxon Mortg. Servs., Inc.,
12
No. 10-03634 DDP, 2010 WL 3834041 (C.D. Cal. Sept. 28, 2010) ................. 37
13
Jamison v. Bank of Am., N.A.,
14 194 F. Supp. 3d 1022 (E.D. Cal. 2016) .............................................................. 33
15
Jogani v. Super. Ct.,
16 165 Cal. App. 4th 901 (2008) ............................................................................. 37
17 Johnmohammadi v. Bloomingdale’s, Inc.,
18 755 F.3d 1072 (9th Cir. 2014) ............................................................................ 32
19 Johnson v. Ocwen Loan Servicing, LLC,
20
No. EDCV 17-01373-JGB (SPx), 2017 WL 10581088 (C.D. Cal.
Dec. 11, 2017) .................................................................................................... 36
21
Johnson v. Select Portfolio Servicing, Inc.,
22 No. CV 15-9231-JFW, 2016 WL 837895 (C.D. Cal. Mar. 3, 2016) ................. 36
23
Kaar v. Wells Fargo Bank, N.A.,
24 No. 16-01290 WHA, 2016 WL 3068396 (N.D. Cal. June 1, 2016) .................. 36
25
Kearney v. Hyundai Motor Am.,
26 No. SACV09-1298-JST, 2010 WL 8251077 (C.D. Cal. Dec. 17,
2010) ................................................................................................................... 34
27
28 Kearns v. Ford Motor Co.,

567 F.3d 1120 (9th Cir. 2009) ............................................................................ 34
7
1388634
1 Kilgore v. KeyBank, Nat. Ass’n,

2 718 F.3d 1052 (9th Cir. 2013) ............................................................................ 24
3 Lauter v. Anoufrieva,
642 F. Supp. 2d 1060 (C.D. Cal. 2009) .............................................................. 37
4
5 Lee v. Ticketmaster L.L.C.,

No. 19-15673, 2020 WL 3124256 (9th Cir. June 12, 2020) .............................. 27
6
Liggins v. GMRI, Inc.,
7
No. CV 18-09000 DSF, 2018 WL 7018011 (C.D. Cal. Dec. 11,
8 2018) ............................................................................................................. 22, 30
9 Lujan v. Defs. of Wildlife,
10 504 U.S. 555 (1992) ........................................................................................... 19
11 Mancha Dev. Co., LLC v. Houston Cas. Co.,
No. SACV 19-831 JVS (KESx), 2019 WL 6703541 (C.D. Cal. July
12
9, 2019) ............................................................................................................... 36
13
Marmet Health Care Ctr., Inc. v. Brown,
14 565 U.S. 530 (2012) ........................................................................................... 22
15
Marriott Ownership Resorts, Inc. v. Flynn,
16 No. 14-00372 JMS-RLP, 2014 WL 7076827 (D. Haw. Dec. 11,
17
2014) ................................................................................................................... 30
18 Mazonas v. Nationstar Mortg. LLC,

No. 16-CV-00660-RS, 2016 WL 2344196 (N.D. Cal. May 4, 2016) ................ 33
19
20
Estate of Migliaccio v. Midland Nat’l Life Ins. Co.,
436 F. Supp. 2d 1095 (C.D. Cal. 2006) .............................................................. 33
21
Miller v. Time Warner Cable Inc.,
22 No. 8:16-cv-00329-CAS, 2016 WL 7471302 (C.D. Cal. Dec. 27,
23 2016) ................................................................................................................... 30
24 Mohamed v. Uber Techs., Inc.,
25 848 F.3d 1201 (9th Cir. 2016) ............................................................................ 24
26 Murillo v. Homebridge Fin. Servs., Inc.,

No. CV 19-1328 PA, 2019 WL 4284515 (C.D. Cal. July 8, 2019) ................... 35
27
28 Nguyen v. Barnes & Noble Inc.,

763 F.3d 1171 (9th Cir. 2014) ...................................................................... 26, 27
8
1388634
1 Novak v. Merced Police Dep’t,

2 No. 1:13-CV-1402 AWI BAM, 2014 WL 730725 (E.D. Cal. Feb.
24, 2014) ............................................................................................................. 37
3
Ostheimer v. Comm’r,
4
No. Civ. 91-102-M-CCL, 1995 WL 723224 (D. Mont. Sept. 18,
5 1995) ................................................................................................................... 20
6 Parrino v. FHP, Inc.,
7 146 F.3d 699 (9th Cir. 1998) .............................................................................. 35
8 People v. Watts,
32 N.Y.3d 358 (2018) ......................................................................................... 33
9
10 Perry v. MLB Advanced Media, L.P.,

No. CV 18-1548 PSG, 2018 WL 5861307 (C.D. Cal. May 30,
11 2018) ................................................................................................. 24, 25, 26, 31
12
Peter v. DoorDash, Inc.,
13 No. 19-cv-06098-JST, 2020 WL 1967568 (N.D. Cal. Apr. 23,
2020) ................................................................................................................... 26
14
15 Pinnacle Museum Tower Ass’n v. Pinnacle Mkt. Dev. (US), LLC,

55 Cal. 4th 223 (2012) .................................................................................. 23, 26
16
17
Pirozzi v. Apple, Inc.,
966 F. Supp. 2d 909 (N.D. Cal. 2013) ............................................................... 34
18
Poublon v. C.H. Robinson Co.,
19 846 F.3d 1251 (9th Cir. 2017) ............................................................................ 24
20
Rudolph v. California Two Bunch Return, LLC,
21 No. CV 16-00886 AB, 2017 WL 7101147 (C.D. Cal. May 19,
22
2017) ................................................................................................................... 20
23 Shearson/Am. Express, Inc. v. McMahon,

482 U.S. 220 (1987) ........................................................................................... 23
24
25 Spiegler v. Home Depot U.S.A., Inc.,

552 F. Supp. 2d 1036 (C.D. Cal. 2008) .............................................................. 36
26
St. Clair v. City of Chico,
27
880 F.2d 199 (9th Cir. 1989) .............................................................................. 21
28
9
1388634
1 Summers v. Earth Island Inst.,

2 555 U.S. 488 (2009) ........................................................................................... 21
3 Swift v. Zynga Game Network, Inc.,

805 F. Supp. 2d 904 (N.D. Cal. 2011) ............................................................... 27
4
5 Vazquez v. Wells Fargo Bank N.A.,

No. CV 15-9821 DSF (JCX), 2017 WL 4679726 (C.D. Cal. June 5,
6 2017) ................................................................................................................... 37
7
West v. Palo Alto Hous. Corp.,
8 No. 17-CV-00238-LHK, 2019 WL 2549218 (N.D. Cal. June 20,
2019) ................................................................................................................... 36
9
10 Williamson v. McAfee, Inc.,

No. 5:14-CV-00158-EJD, 2014 WL 4220824 (N.D. Cal. Aug. 22,
11 2014) ................................................................................................................... 33
12
Winebarger v. Pa. Higher Educ. Assistance Agency,
13 411 F. Supp. 3d 1070 (C.D. Cal. 2019) .............................................................. 20
14 Zenelaj v. Handybook Inc.,
15 82 F. Supp. 3d 968 (N.D. Cal. 2015).................................................................. 30
16 Statutes
17 9 U.S.C. § 1........................................................................................................ 11, 17
18
9 U.S.C. § 3.............................................................................................................. 32
19
9 U.S.C. § 4.............................................................................................................. 31
20
21
Cal. Bus. & Prof. Code § 17200 ........................................................................ 35, 36
22 Cal. Civ. Code § 1761.............................................................................................. 33

23 Cal. Civ. Code § 1770.............................................................................................. 32
24 Other Authorities
25
Fed. R. Civ. P. 9........................................................................................... 32, 34, 35
26
Fed. R. Civ. P. 12......................................................................................... 11, 21, 32
27
28 Fed. Local R. 7-3 ..................................................................................................... 11
10
1388634
1 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:

2 PLEASE TAKE NOTICE that on October 5, 2020 at 1:30 p.m., or as soon
3 thereafter as this matter may be heard, in the courtroom of the Honorable Dale S.
4 Fischer, located at 350 West 1st Street, Los Angeles, California 90012, the
5 Defendant legal entities affiliated with the Oakland Athletics, Athletics Investment
6 Group LLC (the “Athletics” or “A’s”), and the San Francisco Giants, San Francisco
7 Baseball Associates L.P. 1 (the “Giants”) will and hereby do move pursuant to Fed.
8 R. Civ. P. 12(b)(1) and Fed. R. Civ. P 12(b)(6) to dismiss all claims pleaded against
9 them or, alternatively, for an order compelling arbitration, pursuant to the Federal
10 Arbitration Act, 9 U.S.C. § 1, et seq., and dismissing or staying all proceedings in
11 this action relating to the claims pleaded against them pending conclusion of the
12 arbitration.
13 This Motion is made following the conference of counsel pursuant to Local
14 Rule 7-3, which took place on July 21, 2020. This Motion comprises this Notice of
15 Motion, the following Memorandum of Points and Authorities, the [Proposed]
16 Order, the pleadings and other documents on file in this case, all other matters of
17 which the Court may take judicial notice, and any further argument or evidence that
18 may be received by the Court at the hearing.
19 ////
20 ////
21 ////
22 ////
23 ////
24 ////
25 ////
26 ////
27 1
The Complaint names “San Francisco Baseball Associates L.P.”; however, the
28
correct name for the entity associated with the Giants is “San Francisco Baseball
Associates LLC”.
11
1388634
1 Dated: July 29, 2020 KEKER, VAN NEST & PETERS

LLP
2
3 By: s/R. Adam Lauridsen

4 JOHN W. KEKER
R. ADAM LAURIDSEN
5 BENJAMIN D. ROTHSTEIN
BAILEY W. HEAPS
6
Attorneys for Defendants
7 ATHLETICS INVESTMENT
GROUP LLC, AND SAN
8 FRANCISCO BASEBALL
ASSOCIATES L.P.
9
10
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12
13
14
15
16
17
18
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1388634
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 Plaintiffs seek ticket refunds that they have already received. The moving
3 Defendants are entities associated with two Major League Baseball (“MLB”) clubs:
4 the Oakland Athletics and the San Francisco Giants. Only one Plaintiff—Benny
5 Wong—purchased tickets directly from these clubs. The Court should dismiss
6 claims against the moving Defendants for the following independent reasons.
7 First, the claims are moot. Shortly after the COVID-19 Pandemic forced the
8 postponement of the start of the 2020 season, clubs began to offer refunds to
9 patrons on a rolling basis for games impacted by the Pandemic (“Impacted
10 Games”). In early July, MLB announced a process for resuming games and
11 announced a new schedule for games to be played—for now, without fans in
12 ballparks. The moving Defendants declared the remaining originally-scheduled
13 2020 games to be Impacted Games and completed issuing refunds pursuant to their
14 respective policies. Plaintiff Wong has received full refunds under these club
15 policies. His claims against the moving Defendants—which were unripe when
16 initially filed—are now moot, and should be dismissed with prejudice.
17 Second, even if there were a live case or controversy remaining as to the A’s,
18 or Giants, any such dispute would be subject to mandatory arbitration. Wong
19 entered separate, binding arbitration agreements with both clubs. These agreements
20 provide different paths to the same result: the arbitration of Wong’s claims.
21 Wong’s signed arbitration agreement with the A’s, entered into as part of his
22 season-ticket-holder agreement, is enforceable and plainly covers this dispute.
23 Accordingly, the Court should dismiss Wong’s claim against the A’s with
24 prejudice. For the Giants, Wong agreed to arbitrate claims by accepting the terms
25 on the Giants’ ticketing website. Those terms are enforceable and delegate the
26 decision of arbitrability to the arbitrator. The Court therefore should dismiss
27 Wong’s claims against the Giants without prejudice or, alternatively, stay them, to
28 allow the arbitrator to make his or her threshold determination regarding the proper
13
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1 forum. Although the Court should analyze each club’s arbitration agreement
2 independently, they share a common outcome: this Court is not an appropriate
3 forum for any claim alleged against the A’s or Giants.
4 Third, even if any claims against the moving Defendants remain in this
5 forum, they should be dismissed for failure to state a claim. The Consumer Legal
6 Remedies Act does not apply to sports tickets, which are neither goods nor services
7 subject to the statute. The CLRA claims alleged in the Amended Complaint also
8 lack sufficient particularity and any allegations regarding reliance. The Unfair
9 Competition Law claims, which are entirely derivative of the CLRA claims, fare no
10 better. Finally, the civil conspiracy and unjust enrichment claims do not even assert
11 valid causes of action under California law.
12 Ultimately, while the claims against the moving Defendants should be
13 dismissed both due to binding arbitration agreements and failure to state a claim
14 under applicable law, the Court need not even reach those arguments. Wong’s
15 claims fail for the simple and fundamental reason that he has already received the
16 refunds he seeks here.
17 I. BACKGROUND 2
18 A. COVID-19 and the 2020 Baseball Season
19 In the early days of the COVID-19 Pandemic, MLB clubs—like countless
20 other businesses—planned for an uncertain future. On March 12, MLB announced
21 that “in the interests of the safety and well-being of our players, Clubs, and our
22 millions of loyal fans,” the start of the season would be delayed by at least two
23 weeks. Corr. Am. Class Action Compl., ECF No. 42-1, (“FAC”) ¶ 75. The
24 announcement emphasized that the decision was interim in nature and subject to
25 change. Id. It went on to state that MLB and clubs were “preparing a variety of
26
2
This section provides allegations and facts that are relevant to this motion. For a
27 more thorough background please refer to Section II of the Memorandum of Points
and Authorities in Support of Motion to Dismiss Claims Against Office of the
28 Commissioner et al.
14
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1 contingency plans” and would announce the “effects on the schedule at an

2 appropriate time” as well as “remain flexible as events warrant.” Id. On March 15,
3 the Centers for Disease Control and Prevention issued nationwide guidance
4 restricting—for eight weeks—gatherings of more than 50 people. Id. ¶ 76. The
5 next day, on March 16, MLB announced that the opening of the regular season
6 would be delayed “in accordance with that guidance.” Id.
7 On April 20, 2020, Plaintiffs Matthew Ajzenman and Susan Terry-Bazer
8 filed the original complaint against dozens of entities, including those affiliated
9 with the thirty MLB clubs. Compl., ECF No. 1. The original complaint did not
10 allege that any plaintiff purchased tickets from the Athletics or Giants. See
11 generally id. On April 29, Wong joined this lawsuit by filing—together with the
12 nine other named Plaintiffs—a first amended complaint and reciting allegations that
13 the Athletics and Giants failed to refund him immediately for his purchases of 2020
14 tickets. See ECF No. 16; see also FAC ¶¶ 14–15; 25–26.
15 As Plaintiffs allude to in the Amended Complaint, news reports as far back as
16 April indicated that the 30 MLB clubs would be releasing ticket policies for the
17 2020 season. Id. ¶ 3. Consistent with these reports, beginning in April, clubs
18 implemented policies for issuing refunds and credits for Impacted Games. See
19 Oakland Athletics, “Oakland Athletics 2020 Season Updates”
20 https://www.mlb.com/athletics/team/fan-update (referring to e-mail communication
21 sent April 29); San Francisco Giants, “Ticketing FAQs”
22 https://www.mlb.com/giants/fans/resource-center/ticketing (same). Amidst the
23 confusion of the early days of the Pandemic, the A’s and Giants kept their fans
24 informed of their options and repeatedly offered to work with them to address their
25 concerns regarding the uncertainty surrounding the 2020 season schedule. See id.
26 The FAC alleges five claims for relief under state law, for alleged violations
27 of the California Consumer Legal Remedies Act (Count 1) and Unfair Competition
28 Law (Counts 2 and 3), as well as common-law claims for Civil Conspiracy (Count
15
1388634
1 4) and Unjust Enrichment (Count 5). Plaintiffs style the FAC as seeking only
2 equitable relief; however, the gravamen of the complaint is a request for refunds.
3 See FAC ¶¶ 117, 125, 129, 134, 137, § VIII. All of the claims against the moving
4 Defendants arise out of the alleged failure of the A’s and Giants to provide Wong
5 with refunds for his purchase of 2020 tickets.
6 B. The Athletics
7 On August 9, 2018, Wong electronically signed a “Season Ticket
8 Membership Agreement” to purchase three 2019 Athletics ticket packages, which
9 provided that “THIS AGREEMENT WILL AUTOMATICALLY RENEW
10 EACH SEASON UNTIL YOU CANCEL IT.” Decl. of Mark Bashuk of the
11 Oakland Athletics in Support of Motion to Dismiss or in the Alternative Compel
12 Arbitration (“Athletics Decl.”) ¶ 3; id. Ex. A at 1, 5. On October 15, 2019, Wong
13 purchased the three 2020 A’s ticket packages at issue here pursuant to the automatic
14 renewal term in that contract. Id. ¶ 7; id. Ex. B; FAC ¶¶ 14–15. On July 1, 2020,
15 pursuant to the Athletics’ policy for Impacted Games, the A’s issued Wong a full
16 refund for his 2020 ticket packages. Athletics Decl. ¶¶ 8–9; id. Ex. C; id. Ex. D.
17 Wong’s Season Ticket Membership Agreement with the A’s contains a
18 binding, bilateral arbitration clause in a section entitled “Arbitration Agreement”
19 (hereinafter, the “A’s Arbitration Agreement”). Id. Ex. A. Wong was able to
20 review that Agreement in full, under no time constraints, before he electronically
21 signed it. Id. ¶ 4. The A’s Arbitration Agreement states that either “you or we may
22 individually elect to arbitrate any and all claims and disputes relating in any way to
23 this Agreement or to the parties’ dealings with one another,” with an exception for
24 “claims concerning the validity, scope or enforceability of this Arbitration
25 Agreement, through BINDING INDIVIDUAL ARBITRATION.” Id. Ex. A § 13.
26 The A’s Arbitration Agreement provides in bolded, capitalized type that
27 “YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION
28 AGREEMENT, BUT YOU MUST EXERCISE THIS RIGHT PROMPTLY
16
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1 AS SET FORTH HEREIN.” Id. The opt-out provision states that if Wong did
2 “not wish to be bound by this agreement to arbitrate” he could opt out within 45
3 days by calling the number listed in the Agreement or sending an email to a
4 specified address. Id. While some A’s fans have chosen to use that procedure to
5 opt out of the Arbitration Agreement, Wong did not opt out. Id. ¶ 6.
6 The Agreement repeatedly notifies Wong of the presence of the Arbitration
7 Agreement, including the opt-out option. Near the top of the first page, the
8 Agreement states in bolded, capitalized type that “THIS AGREEMENT
9 INCLUDES AN ARBITRATION AGREEMENT WITH A CLASS ACTION
10 WAIVER. YOU HAVE A RIGHT TO REJECT THE ARBITRATION
11 AGREEMENT AS DESCRIBED BELOW. PLEASE READ IT
12 CAREFULLY.” Athletics Decl. Ex. A at 1. It notes again on the signature page in
13 text offset from the main body that, “By signing below, you agree to the terms of
14 this Agreement, including the Arbitration Agreement . . . .” Id. Ex. A at 5. Wong
15 entered his electronic signature immediately below that statement. Id.
16 The Agreement provides that it “shall be governed by the Federal Arbitration
17 Act, 9 U.S.C. §§ 1–16 (‘FAA’)” and shall be “administered by the [AAA] or JAMS
18 pursuant to the applicable arbiter’s applicable rules.” Id. Ex. A § 13. It also
19 contains a bilateral class-action waiver, stating that “ALL DISPUTES SHALL BE
20 ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS
21 ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY
22 SIMILAR PROCEEDING.” Id.
23 C. The Giants
24 On February 8, 2020, Wong purchased four tickets to see a September 24
25 Giants game through the Giants’ website, SFGiants.com.3 Declaration of Ashley
26
3
The Amended Complaint alleges that Wong purchased three tickets for the 2020
27 season; however, the Giants’ ticketing system records reflect that he purchased four
tickets. FAC ¶ 14; Giants Decl. ¶ 3. Whether the pleading was in error or Wong
28 seeks a refund for only three of the four tickets is not material to this motion.
17
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1 Connor of the San Francisco Giants in Support of Motion to Dismiss or in the

2 Alternative Compel Arbitration (Giants Decl.) ¶ 3; FAC ¶ 14–15. Wong spent
3 $46.50 on those tickets, including service charges. Id. ¶ 3; id. Ex. A. On May 12,
4 2020, Wong received a full refund for his Giants tickets. Id. ¶ 23; id. Ex. A.
5 The September 24 Giants game to which Wong purchased tickets was
6 scheduled to be one of the Giants’ “Special Event” games, styled as “Star Trek
7 Night.” Giants Decl. ¶ 4. Wong purchased tickets to Star Trek Night online,
8 through the Giants’ website at www.SFGiants.com/specialevents. Id. ¶¶ 5–6. The
9 Giants use a third-party platform called Fevo, Inc. (“Fevo”) to process such Special
10 Event ticket purchases. Id. ¶ 7.
11 When Wong clicked “Buy Tickets” to Star Trek Night, the Fevo platform
12 opened as a “pop-up” window on the Giants’ page. Id. In that window, Wong had
13 to click an orange “CONFIRM” button to complete his purchase. Id. ¶ 8.
14 Immediately above the “CONFIRM” button, a statement notified Wong that “By
15 clicking ‘Confirm,’ you agree to the [blue hyperlink] privacy policy and [blue
16 hyperlink] terms of use.” Id. ¶¶ 8–10.
17 Before clicking “CONFIRM,” Wong could have reviewed Fevo’s terms of
18 use (“Fevo Terms”) by clicking the “terms of use” hyperlink. Id. ¶¶ 10–13. The
19 Fevo Terms state that they “set forth the legally binding terms and conditions for
20 your use” of Fevo’s services. Giants Decl. Ex. B at 1. In the third paragraph,
21 immediately visible upon opening the page, the Fevo Terms state, “you
22 acknowledge that, if you access the services via a third-party website (such as the
23 website of a third-party Event provider), you will also be subject to the terms
24 applicable to such third-party website.” Id. ¶ 14; id. Ex. B at 1 (emphasis added).
25 Because Wong used Fevo to purchase tickets to a Giants event and accessed
26 the Fevo website through SFGiants.com, the relevant third-party terms are those
27 “applicable to” SFGiants.com (the “SFGiants.com Terms”). Id. ¶ 15. The
28 applicable terms are accessible from every page of the SFGiants.com website by
18
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1 clicking “Terms of Use” at the bottom of any page. Id. ¶ 17–19.

2 A user opening the SFGiants.com Terms is immediately notified by a table of
3 contents that the agreement contains a provision concerning “ARBITRATION
4 . . . ” (the “SFGiants.com Arbitration Provision”). Giants Decl. Ex. C at 1. The
5 SFGiants.com Arbitration Provision provides that “Any and all disputes, claims or
6 controversies arising out of or relating to this Agreement, the breach thereof, or any
7 use of the MLB Digital Properties (including all commercial transactions conducted
8 through the MLB Digital Properties) (‘Claims’) . . . shall be settled by binding
9 arbitration . . . .” Id. Ex. C § 11(1). The only exception to that broad scope of
10 coverage is for claims brought on an individual basis in small claims court. Id.
11 The SFGiants.com Arbitration Provision states that it “shall be governed by
12 and construed and interpreted in accordance with the Federal Arbitration Act.” Id.
13 It incorporates the rules of the American Arbitration Association (“AAA”) by
14 reference, providing that the arbitration shall be conducted by a “single arbitrator
15 appointed by the [AAA] in accordance with its then governing rules and
16 procedures, including the Supplementary Procedures for Consumer-Related
17 Disputes, where applicable.” Id. Finally, the Provision contains a bilateral class-
18 action waiver, stating that all claims shall be arbitrated “on an individual basis only,
19 and shall not be consolidated or joined with or in any arbitration or other
20 proceeding involving a Claim of any other party.” Id. Ex. C § 11(4).
21 II. ARGUMENT
22 A. The Court Lacks Subject-Matter Jurisdiction.
23 To establish standing, a plaintiff must allege “(1) an injury that is (2) fairly
24 traceable to the defendant’s allegedly unlawful conduct and that is (3) likely to be
25 redressed by the requested relief.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 590
26 (1992) (internal quotation marks omitted). Here, Wong is the only Plaintiff who
27 allegedly purchased tickets directly from the Athletics or Giants. No other Plaintiff
28
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1 has standing to bring claims against the moving Defendants.4

2 Even if Wong has standing, he must also have a live dispute with the moving
3 Defendants to establish a case or controversy that would give rise to the Court’s
4 subject-matter jurisdiction over Plaintiffs’ claims against them. But the clubs’ full
5 refunds to Wong have extinguished whatever jurisdiction this Court had over the
6 claims against the A’s and Giants. “To qualify as a case fit for federal-court
7 adjudication, an actual controversy must be extant at all stages of review, not
8 merely at the time the complaint is filed.” Arizonans for Official English v.
9 Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks omitted). “If an
10 intervening circumstance deprives the plaintiff of a personal stake in the outcome of
11 the lawsuit, at any point during litigation, the action can no longer proceed and
12 must be dismissed as moot.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669
13 (2016), as revised (Feb. 9, 2016) (internal quotation marks omitted). Thus, where a
14 “Plaintiff has already received all of the relief he seeks from the Court . . . his claim
15 is moot and m[u]st be dismissed.” See, e.g., Rudolph v. California Two Bunch
16 Return, LLC, No. CV 16-00886 AB (KKx), 2017 WL 7101147, at *2 (C.D. Cal.
17 May 19, 2017); Ostheimer v. Comm’r, No. Civ. 91-102-M-CCL, 1995 WL 723224,
18 at *3 (D. Mont. Sept. 18, 1995) (“Because Plaintiffs have received the refunds
19 requested by the complaint, their claims for refund are now moot.”).
20 Even in the class-action context, “a lawsuit—or an individual claim—
21 becomes moot when a plaintiff actually receives all of the relief he or she could
22 receive on the claim through further litigation.” Chen v. Allstate Ins. Co., 819 F.3d
23 1136, 1144 (9th Cir. 2016); see also Winebarger v. Pa. Higher Educ. Assistance
24 Agency, 411 F. Supp. 3d 1070, 1088 n.9 (C.D. Cal. 2019); Ballin v. Russ Bassett
25 4
To the extent that Plaintiff Alex Canela alleges a claim against the Giants arising
26 out of his purchase of tickets to a Giants game through Defendant Stubhub, Inc., he
also lacks standing. Canela contends that he purchased tickets “directly from
27 StubHub” and “StubHub has not issued refunds, causing Plaintiff financial injury.”
See FAC ¶¶ 16–17. Thus, by Canela’s own allegations, his injury is not fairly
28 traceable to or redressable by the Giants.
20
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1 Corp., No. 17-CV-3981 PSG, 2017 WL 10527368, at *4 (C.D. Cal. Dec. 6, 2017).
2 Moreover, when plaintiffs have actually received the relief that would make them
3 whole, a request for an injunction “in the abstract . . . apart from any concrete
4 application that threatens imminent harm to [their] interests,” does not keep their
5 claims alive. See Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009); see also
6 Ballin, 2017 WL 10527368, at *4.
7 Wong’s central claim in this lawsuit is that he has been denied refunds for his
8 purchase of 2020 MLB tickets. See e.g. FAC ¶ 1 (defining lawsuit as a class action
9 against MLB clubs “that refuse to refund money to MLB’s fans who purchased
10 tickets for the 2020 MLB season”); see generally FAC (reciting variations of the
11 word “refund” 107 times). Pursuant to the moving Defendants’ policies for
12 Impacted Games, Wong has now received full refunds. Athletics Decl. ¶¶ 8–9;
13 Giants Decl. ¶ 23.5 That Wong styles what is essentially a request for refunds as
14 also seeking declaratory and injunctive relief does not alter the conclusion that,
15 having received the relief he sought, he no longer has a live case or controversy for
16 this Court to adjudicate. See Summers, 555 U.S. at 494; Ballin, 2017 WL
17 10527368, at *4. His claims for refunds are thus moot.
18 In meet-and-confer discussions with Wong’s counsel, Defendants repeatedly
19 raised the mootness of Wong’s and the other Plaintiffs’ claims and asked for their
20 voluntary dismissal. See Motion to Dismiss on Behalf of the Office of the
21 Commissioner et al. (“Comm’r MTD”) at 28. Two Plaintiffs agreed to voluntarily
22 dismiss their claims on the eve of this filing. See ECF No. 75; ECF No. 76.
23 Although Wong’s moot claims are materially indistinguishable from the voluntarily
24 dismissed ones—those Plaintiffs, like Wong, received refunds or requested credits
25 pursuant to clubs’ Impacted Games policies—Wong has refused to dismiss them,
26
5
“Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance
27 of a complaint’s jurisdictional allegations despite their formal sufficiency, and in so
doing rely on affidavits or any other evidence properly before the court.” St. Clair
28 v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
21
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1 necessitating this motion. See Comm’r MTD at 28.

2 B. The Claims Are Subject to Mandatory Arbitration
3 Even if the Court finds that Wong’s claims are not moot, there is an
4 independent reason they do not belong in this Court: Wong agreed to arbitrate, on
5 an individual basis, disputes arising out of his ticket purchases. If the Court finds it
6 has jurisdiction to adjudicate this action, it should order Wong to arbitrate his
7 claims against the Athletics and Giants.
8 The Federal Arbitration Act (“FAA”) “reflects an emphatic federal policy in
9 favor of arbitral dispute resolution.” Marmet Health Care Ctr., Inc. v. Brown, 565
10 U.S. 530, 533 (2012). When presented with an arbitration agreement, the court
11 ordinarily decides two “gateway issues” to determine whether the dispute is
12 arbitrable: “(1) whether there is an agreement to arbitrate between the parties; and
13 (2) whether the agreement covers the dispute.” Brennan v. Opus Bank, 796 F.3d
14 1125, 1130 (9th Cir. 2015). If the answer to both questions is yes, the court must
15 compel arbitration.
16 The analysis is a single step, however, when the parties “agree to have an
17 arbitrator decide not only the merits of a particular dispute but also gateway
18 questions of arbitrability.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.
19 Ct. 524, 529 (2019). In such circumstances, the Court’s role is limited to
20 determining whether the arbitration agreement presents “clear and unmistakable
21 evidence” that the parties intended to delegate questions of arbitrability to the
22 arbitrator. Liggins v. GMRI, Inc., No. CV 18-09000 DSF (AFMx), 2018 WL
23 7018011, at *2 (C.D. Cal. Dec. 11, 2018) (quoting Brennan, 796 F.3d at 1130)
24 (Fischer, J.). “[I]f a valid agreement exists, and if the agreement delegates the
25 arbitrability issue to an arbitrator, a court may not decide the arbitrability issue.”
26 Schein, 139 S. Ct. at 530.
27 Separate arbitration agreements entered into in different ways govern
28 Wong’s disputes with the Athletics and Giants. Wong’s agreement with the A’s,
22
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1 entered into by way of an executed ticket package agreement, requires this Court to
2 decide gateway arbitrability issues in favor of arbitration. Wong’s agreement with
3 the Giants, entered into as part of the Giants’ online ticket purchasing process,
4 requires the Court to delegate those arbitrability issues to the arbitrator. Although
5 the Court applies different analyses to those separate agreements, both agreements
6 mandate the same fate for the claims: referral to arbitration.
7 1. Wong’s Claims Against the A’s Are Governed by the A’s
Arbitration Agreement.
8
9 The A’s Arbitration Agreement applies broadly to “any and all claims and
10 disputes relating in any way to this Agreement or to the parties’ dealings with one
11 another.” Athletics Decl., Ex. A § 13 (emphasis added). However, it expressly
12 excludes from its scope “Claims concerning the validity, scope or enforceability of
13 this Arbitration Agreement.” Id. Thus, this Court must decide the gateway issues
14 of arbitrability: “(1) whether there is an agreement to arbitrate between the parties;
15 and (2) whether the agreement covers the dispute.” Brennan, 796 F.3d at 1130.
16 a. Wong Agreed to the A’s Arbitration Agreement,
Which is Valid and Enforceable.
17
18 Courts apply state law to determine whether the parties entered into an
19 enforceable agreement to arbitrate, Circuit City Stores, Inc. v. Adams, 279 F.3d 889,
20 892 (9th Cir. 2002), giving “due regard to the federal policy favoring arbitration.”
21 Pinnacle Museum Tower Ass’n v. Pinnacle Mkt. Dev. (US), LLC, 55 Cal. 4th 223,
22 236 (2012). Under the FAA, arbitration agreements are presumed valid and
23 enforceable. Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 227 (1987).
24 Thus, “the party resisting arbitration bears the burden of proving that the claims at
25 issue are unsuitable for arbitration.” Green Tree Fin. Corp.-Ala. v. Randolph, 531
26 U.S. 79, 91 (2000).
27 Wong’s acceptance of the A’s Arbitration Agreement is straightforward.
28 When Wong electronically signed the A’s Season Ticket Membership Agreement,
23
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1 he expressly consented “to the terms of th[e] Agreement, including the Arbitration
2 Agreement . . . .” Athletics Decl., Ex. A at 5. Wong may escape enforcement of
3 the Agreement only by demonstrating that it is unconscionable, which requires him
4 to prove that it is both procedurally and substantively unconscionable. See AT&T
5 Mobility LLC v. Concepcion, 563 U.S. 333, 340 (2011). He can do neither.
6 “The procedural element of unconscionability focuses on ‘oppression or
7 surprise due to unequal bargaining power.’” Poublon v. C.H. Robinson Co., 846
8 F.3d 1251, 1260 (9th Cir. 2017) (quoting Pinnacle, 55 Cal. 4th at 246). There is no
9 oppression or surprise here. Wong had a full copy of the Athletics’ Agreement in
10 front of him, which he was free to review at his leisure, before he electronically
11 signed it. See Perry v. MLB Advanced Media, L.P., No. CV 18-1548 PSG (GJSx),
12 2018 WL 5861307, at *5 (C.D. Cal. May 30, 2018) (finding no procedural
13 unconscionability where party was not subjected to “deceptive or high pressure
14 tactics”). The terms of the A’s Arbitration Agreement are stated clearly, in bolded
15 type, in a section set off separately from the rest of the text. See Kilgore v.
16 KeyBank, Nat. Ass’n, 718 F.3d 1052, 1059 (9th Cir. 2013) (finding no procedural
17 unconscionability where arbitration provision was not “buried in fine print . . . but
18 was instead in its own section, clearly labeled, in boldface”).
19 If Wong did not “wish to be bound” by the A’s Arbitration Agreement, he
20 could have opted out by simply contacting the Athletics at the number or e-mail
21 address provided, within 45 days of signing the Season Ticket Membership
22 Agreement. Athletics Decl. Ex. A § 13. Wong chose not to take advantage of that
23 straightforward procedure. Id. ¶ 6. Where, as here, an agreement to arbitrate creates
24 “a meaningful right to opt-out,” it is “procedurally conscionable as a matter of law.”
25 Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1206, 1210 (9th Cir. 2016) (finding
26 that a 30-day opt-out period created a meaningful right to opt out); see also Kilgore,
27 718 F.3d at 1059 (finding that arbitration provisions providing 30- and 60-day opt-
28 out periods were procedurally conscionable).
24
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1 In addition to having the opportunity to opt out, Wong had a “meaningful

2 choice” to avoid the Arbitration Agreement by “simply forgoing the activity.”
3 Belton v. Comcast Cable Holdings, LLC, 151 Cal. App. 4th 1224, 1245 (2007).
4 “California courts have consistently held that a term cannot be so unconscionable as
5 to invalidate a contract when the contract at issue concerns a nonessential
6 recreational activity.” Bassett v. Elec. Arts Inc., No. 13-CV-04208(MKB)(SMG),
7 2015 WL 1298644, at *11 (E.D.N.Y. Feb. 9, 2015), report and recommendation
8 adopted, 93 F. Supp. 3d 95 (E.D.N.Y. 2015); see also Perry, 2018 WL 5861307, at
9 *5 (finding that a contract to view MLB games on television was not
10 unconscionable because it concerns a “nonessential recreational activity”).
11 Wong chose to purchase tickets to A’s games pursuant to the A’s Season
12 Ticket Membership Agreement and to forgo opting out of the A’s Arbitration
13 Agreement. Athletics Decl. ¶ 6. That Agreement is enforceable.
14 b. This Dispute Falls Squarely Within the Scope of the
A’s Arbitration Agreement.
15
16 Wong and the A’s agreed to an Arbitration Agreement broadly encompassing

17 “any and all claims and disputes relating in any way to this Agreement or to the
18 parties’ dealings with one another.” Athletics Decl., Ex. A § 13 (emphasis added).
19 That provision plainly applies to the dispute here. Wong’s claims against the A’s
20 arise out of a common allegation that the Athletics owe him a refund for the ticket
21 packages he purchased pursuant to the Season Ticket Membership Agreement
22 containing the Arbitration Agreement. Wong’s claims, on their face, “relat[e] . . .
23 to” the Agreement governing the purchase of those tickets, and also to “the parties’
24 dealings with one another.” Id.
25 2. Wong’s Claims Against the Giants Are Governed by the
SFGiants.com Terms, Which Delegate Questions of
26 Arbitrability to the Arbitrator.
27 In purchasing his 2020 Giants tickets, Wong also agreed to be bound to the
28 SFGiants.com Terms. Unlike the A’s Arbitration Agreement, the SFGiants.com
25
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1 Arbitration Provision delegates to the arbitrator the power to decide the question of
2 arbitrability. Thus, as to Wong’s claims against the Giants, this Court’s role is
3 limited to determining whether the agreement to delegate the question of
4 arbitrability was valid.
5 a. Wong Agreed to the SFGiants.com Terms by Clicking
“CONFIRM” to Purchase Tickets.
6
7 When evaluating whether parties agreed to arbitrate, courts apply “ordinary

8 state-law principles that govern the formation of contracts.” First Options of Chi.,
9 Inc. v. Kaplan, 514 U.S. 938, 944 (1995).6 To determine whether a party assented
10 to a contract, courts look to whether the party had sufficient notice of the contract’s
11 terms such that an “ordinarily prudent [person] could and should have read such
12 provisions.” Cal. State Auto. Ass’n Inter-Ins. Bureau v. Barrett Garages, Inc., 257
13 Cal. App. 2d 71, 76 (1967). “An arbitration clause within a contract may be
14 binding on a party even if the party never actually read the clause.” Pinnacle
15 Museum Tower Ass’n. v. Pinnacle Mkt. Dev. (US), LLC, 55 Cal. 4th 223, 236
16 (2012). In the sphere of online contracting, if a user lacks actual knowledge of a
17 website’s terms, whether the terms constitute an agreement “turns on whether the
18 website puts a reasonably prudent user on inquiry notice of the terms of the
19 contract.” Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014).
20 Courts have repeatedly found that an internet user is bound by a website’s
21 terms of use where, as here, he or she clicks a button culminating a transaction—for
22 example, purchasing an item or logging into an account—that appears next to a
23 notice stating that clicking constitutes assent to the terms. Courts refer to contracts
24 6
The SFGiants.com Terms contain a New York choice-of-law provision. See
25 Giants Decl. Ex. C § 12. Notwithstanding that provision, the court should apply
California law to determine whether that contract was formed in the first instance.
26 Peter v. DoorDash, Inc., No. 19-cv-06098-JST, 2020 WL 1967568, at *3 (N.D.
Cal. Apr. 23, 2020) (applying California law to question of whether a contract
27 existed notwithstanding choice-of-law provision within contract). In any event, the
results are “consistent” under either New York or California law, so the Court need
28 not engage in any choice-of-law analysis. Perry, 2018 WL 5861307, at *4 n.2.
26
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1 formed through such processes as “modified clickwrap” agreements. Swift v. Zynga

2 Game Network, Inc., 805 F. Supp. 2d 904, 910 (N.D. Cal. 2011). It is well-
3 established that where there is “an explicit textual notice that continued use will act
4 as a manifestation of the user’s intent to be bound,” Lee v. Ticketmaster L.L.C., No.
5 19-15673, 2020 WL 3124256, at *2 (9th Cir. June 12, 2020) (quoting Nguyen, 763
6 F.3d at 1177), the user is bound by terms that are at least “reasonably conspicuous,”
7 Guadagno v. E*Trade Bank, 592 F. Supp. 2d 1263, 1271 (C.D. Cal. 2008). See
8 also In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 1166
9 (N.D. Cal. 2016) (enforcing modified clickwrap agreement and stating that the
10 Ninth Circuit “has indicated a tolerance” for “single-click” agreements that both
11 culminate a transaction and confirm assent to online terms of service).
12 To complete his purchase of Giants’ tickets, Wong clicked an orange
13 “CONFIRM” button, immediately above which appeared a statement providing that
14 “By clicking ‘Confirm’, you agree to the privacy policy and terms of use.” Giants
15 Decl. ¶ 8. The phrases “privacy policy” and “terms of use” are underlined and
16 written in blue type, indicating that they contain hyperlinks directing users to the
17 relevant documents. Id. ¶¶ 8–9. By clicking the “terms of use” hyperlink, Wong
18 could access the Fevo Terms. Id. ¶¶ 10, 13. Thus, by clicking “CONFIRM” Wong
19 “affirmatively acknowledge[d]” the Fevo Terms and is now bound by them. Lee,
20 2020 WL 3124256, at *2.
21 The Fevo Terms incorporate by reference the SFGiants.com Terms, and
22 Wong is thus bound by the SFGiants.com Terms as well. In the third paragraph,
23 immediately visible upon opening, the Fevo Terms provide “you acknowledge that,
24 if you access the services via a third-party website (such as the website of a third-
25 party Event provider), you will also be subject to the terms applicable to such
26 third-party website.” Giants Decl. Ex. B at 1 (emphasis added). Wong accessed
27 Fevo through the SFGiants.com website, which is the “website of a third-party
28 Event provider.” Id. A reasonable user in Wong’s position would understand that
27
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1 by agreeing to the Fevo Terms, he was also agreeing to “be subject to the terms
2 applicable to [SFGiants.com].” Id.
3 Wong could have easily accessed the “terms applicable” to SFGiants.com
4 from the Fevo confirmation window either by clicking a visually-distinctive blue,
5 underlined hyperlink to “sfgiants.com,” which linked directly to the SFGiants.com
6 homepage, or simply clicking the “X” in the top right corner of the Fevo
7 confirmation window, which would restore the SFGiants.com/specialevents page.
8 Id. ¶ 16. At the bottom of every single page of the Giants’ website is a hyperlink to
9 the applicable “Terms of Use,” through which users can access the SFGiants.com
10 Terms. Id. ¶ 17.
11 The SFGiants.com Terms are no less enforceable merely because they were
12 incorporated by reference into the Fevo Terms. It is black-letter law that “[w]here
13 it is clear that a party is assenting to a contract that incorporates other documents by
14 reference, the incorporation is valid—and the terms of the incorporated document
15 are binding.” In re Holl, 925 F.3d 1076, 1084 (9th Cir. 2019); see also Boys Club
16 of San Fernando Valley, Inc. v. Fid. & Deposit Co., 6 Cal. App. 4th 1266, 1271
17 (1992) (“An agreement need not expressly provide for arbitration, but may do so in
18 a secondary document which is incorporated by reference.”). Where, as here, a
19 party’s “assent to” online terms that incorporated an arbitration provision is
20 “unambiguous,” the party has sufficient inquiry notice of the provision to render it
21 enforceable, “regardless of whether he actually read the terms.” Holl v. United
22 Parcel Serv., Inc., No. 16-cv-05856-HSG, 2017 WL 11520143, at *5 (N.D. Cal.
23 Sept. 18, 2017) (enforcing terms—including an arbitration provision—that were
24 incorporated by reference into online terms of service of a different website)
25 affirmed by In re Holl, 925 F.3d at 1083 (finding no reversible error where court
26 enforced terms that “require[d] several steps and a fair amount of web-browsing
27 intuition” to locate). Wong is thus bound by the SFGiants.com Terms.
28
28
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1 b. The SFGiants.com Terms Contain “Clear and

Unmistakable” Evidence of an Agreement to Arbitrate
2 Arbitrability by Incorporating the AAA Rules.
3 By agreeing to the SFGiants.com Terms, Wong agreed to the SFGiants.com
4 Arbitration Provision. Giants Decl. ¶ 15. The SFGiants.com Arbitration Provision
5 incorporates by reference the rules of the AAA. Id. Ex. C § 11. That incorporation
6 constitutes “clear and unmistakable” evidence of an agreement to arbitrate
7 arbitrability. Brennan, 796 F.3d at 1130.
8 “The rules of the American Arbitration Association provide that arbitrators
9 have the power to resolve arbitrability questions.” Schein, 139 S. Ct. at 528. In
10 Brennan v. Opus Bank, the Ninth Circuit held that “incorporation of the AAA
11 rules” into an arbitration agreement “constitutes clear and unmistakable evidence
12 that contracting parties agreed to arbitrate arbitrability.” 796 F.3d 1125, 1130 (9th
13 Cir. 2015). The Brennan court considered a commercial contract between
14 sophisticated parties, but the court recognized that “the vast majority of the circuits
15 that hold that incorporation of the AAA rules constitutes clear and unmistakable
16 evidence of the parties’ intent do so without explicitly limiting that holding to
17 sophisticated parties or to commercial contracts.” Id. at 1130–31 (emphasis added).
18 As a result, it expressly did not “foreclose the possibility that this rule could also
19 apply to unsophisticated parties or to consumer contracts.” Id.
20 Federal courts in California read that statement as “strongly indicat[ing]
21 approval of [out-of-circuit] decisions enforcing arbitrability delegation via
22 incorporation of the AAA rules” in consumer contracts. Cordas v. Uber Techs.,
23 Inc., 228 F. Supp. 3d 985, 992 (N.D. Cal. 2017). Indeed, since Brennan was
24 decided, the “overwhelming weight of authority” in California has interpreted
25 Brennan and related cases as requiring that “threshold questions of arbitrability can
26 be delegated to the arbitrator through incorporation of the AAA rules regardless of
27 the contracting parties’ sophistication.” Bloom v. ACT, Inc., No. CV 18-6749-
28
29
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1 GW(SSx), 2018 WL 6163128, at *4 (C.D. Cal. Oct. 24, 2018). 7 This Court has
2 also applied the majority approach without discussion, holding, in a case brought by
3 an Olive Garden server against the restaurant chain, that incorporation of the AAA
4 rules in an agreement to arbitrate constituted “clear and unmistakable evidence of
5 an agreement to arbitrate arbitrability.” Liggins, 2018 WL 7018011, at *2.
6 Here, the SFGiants.com Arbitration Provision states that the arbitration shall
7 be conducted by the AAA “in accordance with its then governing rules and
8 procedures, including the Supplementary Procedures for Consumer-Related
9 Disputes, where applicable” (the “Delegation Provision”). Giants Decl. Ex. C
10 § 11(1). The Supplementary Procedures for Consumer-Related Disputes “have
11 been amended and renamed the Consumer Arbitration Rules.” AAA Consumer
12 Arbitration Rules R-1(A). The current Consumer Arbitration Rules provide that
13 where an agreement “specifie[s] that the Supplementary Procedures for Consumer-
14 Related Disputes shall apply” the parties to the agreement “shall have made these
15 Consumer Arbitration Rules . . . a part of their arbitration agreement whenever they
16 have provided for arbitration by the [AAA].” Id.; see also Marriott Ownership
17 Resorts, Inc. v. Flynn, No. 14-00372 JMS-RLP, 2014 WL 7076827, at *14 (D.
18 Haw. Dec. 11, 2014) (collecting cases holding that agreements providing that the
19 current version of the AAA’s rules—rather than the version in effect at the time of
20 contracting—are enforceable). Under Rule 14 of the AAA Consumer Rules, “[t]he
21 arbitrator shall have the power to rule on his or her own jurisdiction, including any
22
7
See also Gountoumas v. Giaran, Inc., No. CV 18-7720-JFW(PJWx), 2018 WL
23 6930761, at *6 (C.D. Cal. Nov. 21, 2018) (stating that the “greater weight of
authority” in California “has concluded that the holding of Brennan applies
24 similarly to non-sophisticated parties”) (internal alteration omitted); Miller v. Time
Warner Cable Inc., No. 8:16-cv-00329-CAS (ASx), 2016 WL 7471302, at *5 (C.D.
25 Cal. Dec. 27, 2016) (stating that the “greater weight of authority” applies Brennan
to consumer contracts); Cordas, 228 F. Supp. 3d at 992 (stating that “the clear
26 weight of authority supports the conclusion” that Brennan applies to a consumer
contract); Zenelaj v. Handybook Inc., 82 F. Supp. 3d 968, 973 (N.D. Cal. 2015)
27 (stating that following Brennan, “nearly every . . . decision in the Northern District
of California, . . . has consistently found effective delegation of arbitrability
28 regardless of the sophistication of the parties” by incorporating AAA rules).
30
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1 objections with respect to the existence, scope, or validity of the arbitration

2 agreement.” AAA Consumer Arbitration Rules R-14.
3 Thus, in agreeing to arbitrate this dispute in accordance with the AAA rules,
4 Wong agreed that the arbitrator “shall have the power” to decide questions of
5 arbitrability. Id. That agreement constitutes “clear and unmistakable” evidence
6 that Wong and the Giants agreed to delegate the question of arbitrability to the
7 arbitrator. Brennan, 796 F.3d at 1130.8
8 3. The Court Should Order Arbitration of All Claims Against
the A’s and Giants and Dismiss this Action.
9
10 Where the parties entered into a binding arbitration agreement, the FAA
11 requires that the court “shall make an order directing the parties to proceed to
12 arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4. This
13 includes in accordance with “terms providing for individualized proceedings.” Epic
14 Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619 (2018). The FAA “leaves no place for
15 the exercise of discretion.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d
16 1126, 1131 (9th Cir. 2000).
17 With respect to Wong’s claims against the A’s, the A’s Arbitration
18 Agreement requires that all claims brought by Wong or the Athletics “SHALL BE
19 ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS
20 ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY
21
8
22 In the alternative, this Court can decide for itself that those claims are arbitrable.
Recently, in Perry v. MLB Advanced Media, L.P., a court in this district reviewed
23 the MLB.com Terms that are almost identical to the SFGiants.com Terms at issue
here. Compare 2018 WL 5861307, at *3 (quoting arbitration provision at issue in
24 the MLB Terms) with Giants Decl. Ex. C at 8 (providing identical language). The
Perry court found that the provision was “valid and enforceable” and compelled
25 arbitration. Perry, 2018 WL 5861307 at *7. In addition, the SFGiants.com
Arbitration Provision applies broadly to “any and all disputes, claims or
26 controversies, arising out of or relating to this Agreement, the breach thereof, or
any use of the MLB Digital Properties.” Giants Decl. Ex. C at 8 (emphasis added).
27 Wong’s claims against the Giants arise out of and relate to his use of an MLB
Digital Property, the SFGiants.com website, to purchase tickets. Wong’s claims
28 thus fall squarely within the SFGiants.com Arbitration Provision’s sweeping scope.
31
1388634
1 SIMILAR PROCEEDING. The arbitrator(s) may not consolidate the claims of

2 multiple parties.” Athletics Decl. Ex. A § 13. Accordingly, the Court should
3 compel individual arbitration of Wong’s claims against the Athletics. In addition,
4 because all of the claims brought against the A’s are subject to arbitration, the court
5 should exercise its discretion to dismiss those claims with prejudice. See
6 Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014).
7 With respect to Wong’s claims against the Giants, Wong agreed to the
8 SFGiants.com Arbitration Provision, which delegates questions of arbitrability to
9 the arbitrator. Accordingly, the Court should compel arbitration of the question of
10 arbitrability against the Giants and dismiss this action without prejudice or,
11 alternatively, stay it “until such arbitration has been had.” 9 U.S.C. § 3. 9
12 C. The Claims Must Be Dismissed for Failure to State a Claim.
13 If the Court decides that any of Plaintiffs’ claims may proceed in this forum,
14 they should be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
15 1. Count 1 Fails to State a Claim under the CLRA.
16 Plaintiffs’ Consumer Legal Remedies Act (“CLRA”) claims fail for three
17 independent reasons. First, the statute applies only to “the sale or lease of goods or
18 services to a[] consumer.” Cal. Civ. Code § 1770(a) (emphasis added). A ticket to
19 a baseball game is not a good or service. Second, because Plaintiffs’ allege
20 misrepresentations, their claims sound in fraud and are subject to Federal Rule of
21 Civil Procedure 9(b)’s heightened pleading standard, which they cannot meet.
22 Third, Plaintiffs have failed to plead reliance on the alleged misrepresentations,
23 depriving them of statutory standing.
24
25
9
If the Court decides for itself the question of arbitrability under the SFGiants.com
26 Arbitration Provision, that Provision also contains a valid class-action waiver that
must be enforced. Specifically, it states that claims must be brought “on an
27 individual basis only, and shall not be consolidated or joined with or in any
arbitration or other proceeding involving a Claim of any other party.” Giants Decl.
28 Ex. C at 8.
32
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1 a. Tickets are not “goods or services.”

2 “[T]he Consumers Legal Remedies Act applies only to transactions for the
3 sale or lease of consumer ‘goods’ or ‘services’ as those terms are defined in the
4 act.” Fairbanks v. Super. Ct., 46 Cal. 4th 56, 65 (2009) (holding that CLRA applies
5 neither to insurance policies nor services of insurance agents). The CLRA defines
6 “goods” as “tangible chattels bought or leased for use primarily for personal,
7 family, or household purposes, including certificates or coupons exchangeable for
8 these goods.” Cal. Civ. Code § 1761(a) (emphasis added). “Services,” are defined
9 as “work, labor, and services for other than a commercial or business use, including
10 services furnished in connection with the sale or repair of goods.” Id. A ticket to
11 an MLB game is neither.
12 As Plaintiffs themselves acknowledge, a baseball ticket is not a “tangible
13 chattel” but is instead an intangible, revocable “license[]” to attend a game, FAC ¶
14 112; People v. Watts, 32 N.Y.3d 358, 361 (2018) (“Defendant’s premise that event
15 tickets are revocable licenses is true. The case law saying as much is venerable.”).
16 Courts in California have repeatedly held that intangible rights, including licenses,
17 are not goods as defined by the CLRA. 10
18 Nor is “Defendants’ sale of tickets . . . considered a service under Civil Code
19 § 1761(b).” FAC ¶ 112. California courts have repeatedly rejected the argument
20 that merely selling something—especially something that is not itself a “good”
21 under the CLRA—is a service to which the Act applies. Fairbanks, 46 Cal. 4th at
22 65 (sale of insurance); Jamison v. Bank of Am., N.A., 194 F. Supp. 3d 1022, 1032
23 (E.D. Cal. 2016) (mortgage loans); Mazonas v. Nationstar Mortg. LLC, No. 16-CV-
24 00660-RS, 2016 WL 2344196, at *4 (N.D. Cal. May 4, 2016) (same); Anderson v.
25
10
See, e.g., Biggs v. Bank of Am. Corp., No. EDCV 15-00267-VAP (KKx), 2015
26 WL 3465739, at *6 (C.D. Cal. June 1, 2015) (mortgages); Williamson v. McAfee,
Inc., No. 5:14-CV-00158-EJD, 2014 WL 4220824, at *7 (N.D. Cal. Aug. 22, 2014)
27 (software); Fairbanks v. Super. Ct., 46 Cal. 4th 56, 60–61 (2009) (life insurance);
Estate of Migliaccio v. Midland Nat’l Life Ins. Co., 436 F. Supp. 2d 1095, 1108–09
28 (C.D. Cal. 2006) (annuities).
33
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1 SeaWorld Parks & Entm’t, Inc., No. 15-CV-02172-JSW, 2016 WL 8929295, at *10
2 (N.D. Cal. Nov. 7, 2016) (sale of admission to SeaWorld).11 To conclude otherwise
3 “would defeat the apparent legislative intent in limiting the definition of ‘goods’ to
4 include only ‘tangible chattels.’” Fairbanks, 46 Cal. 4th at 65.
5 Thus, because the license to attend an MLB game is not a good or service
6 covered by the CLRA, Plaintiffs’ First Claim for Relief should be dismissed.
7 b. Plaintiffs’ CLRA Claims Lack Particularity.
8 Even if the CLRA applied to the purchase of tickets to baseball games,
9 Plaintiffs’ CLRA claims would still fail. CLRA claims “grounded in fraud” such as
10 those alleged here involving purported misrepresentations “must satisfy the
11 particularity requirement of Rule 9(b).” Kearns v. Ford Motor Co., 567 F.3d 1120,
12 1125 (9th Cir. 2009). Courts have applied this standard to alleged violations of the
13 statutory provisions cited by Plaintiffs. See, e.g., Pirozzi v. Apple, Inc., 966 F.
14 Supp. 2d 909, 923 (N.D. Cal. 2013); Kearney v. Hyundai Motor Am., No. SACV09-
15 1298-JST (MLGx), 2010 WL 8251077, at *5 (C.D. Cal. Dec. 17, 2010). To satisfy
16 Rule 9(b), plaintiffs must “identify the who, what, when, where and how of the
17 misconduct charged, as well as what is false or misleading about [the challenged
18 conduct], and why it is false.” Eisen v. Porsche Cars N. Am., Inc., No. CV 11-9405
19 CAS (FEMx), 2012 WL 841019, at *3 (C.D. Cal. Feb. 22, 2012).
20 Plaintiffs’ allegations fall far short of what Rule 9(b) requires. Plaintiffs do
21 not say which statements contained the allegedly false representations that the
22 moving Defendants’ “goods have characteristics which they do not have” or that
23 the moving Defendants’ ticket sales “involve[d] rights, remedies, and/or obligations
24 which they did not have.” FAC ¶ 114. Nor do Plaintiffs allege who made such
25
11
26 The Anderson court found that the CLRA applied to admission to SeaWorld
because of the additional services provided upon admission. 2016 WL 8929295, at
27 *12. Plaintiffs have not made and could not make any such allegation here. See
Hall v. Sea World Entm’t, Inc., No. 3:15-CV-660-CAB-RBB, 2015 WL 9659911,
28 at *15 (S.D. Cal. Dec. 23, 2015).
34
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1 statements, when and where they were made, or how they were misleading.
2 Without more, Plaintiffs cannot overcome Rule 9(b)’s exacting standard.
3 c. Plaintiffs Fail to Allege Reliance.
4 To have standing to bring a CLRA claim premised on a misrepresentation or
5 nondisclosure, a plaintiff must also allege that he or she—and all putative class
6 members—actually relied on the misrepresentation or nondisclosure. Durell v.
7 Sharp Healthcare, 183 Cal. App. 4th 1350, 1367 (2010). Here, Plaintiffs have not
8 alleged that they relied on any purported misrepresentations. See generally FAC ¶¶
9 110–117. In fact, Wong agreed to contracts in connection with his purchases that
10 specifically disclaimed liability for any failure to provide an immediate refund for
11 cancelled or postponed games. See Athletics Decl. Ex. A § 5; Giants Decl. Ex. C §
12 8. 12 Wong does not allege that, but for any statements by the A’s or Giants, he
13 would not have purchased tickets or would have otherwise acted differently. The
14 CLRA claim must therefore be dismissed.
15 2. Counts 2 and 3 Fail to State a Claim Under the UCL.
16 Plaintiffs allege both “unlawful” and “unfair” business acts under Cal. Bus.
17 & Prof. Code § 17200, but both claims are deficient. See FAC ¶¶ 119, 127.
18 First, Plaintiffs allege that Defendants’ actions are “unlawful” because they
19 violate the CLRA. FAC ¶ 127. That claim is entirely derivative of Plaintiffs’
20 CLRA claim and therefore fails for the same reasons. Murillo v. Homebridge Fin.
21 Servs., Inc., No. CV 19-1328 PA (JEMx), 2019 WL 4284515, at *3 (C.D. Cal. July
22 8, 2019) (“When a statutory claim fails, a derivative UCL claim also fails.”).
23 Second, Plaintiffs’ claim under the unfair prong must be dismissed because
24 the supposedly unfair business practice they allege—refusing to implement blanket
25 12
To “[p]revent[] plaintiffs from surviving a Rule 12(b)(6) motion by deliberately
26 omitting references to documents upon which their claims are based . . . a district
court ruling on a motion to dismiss may consider a document the authenticity of
27 which is not contested, and upon which the plaintiff’s complaint necessarily relies.”
Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (superseded by statute on
28 other grounds).
35
1388634
1 refund policies immediately for all 2020 MLB games, see FAC ¶¶ 123-24—
2 “overlap[s] entirely” with the business practice alleged under the unlawful prong of
3 § 17200. See, e.g., Johnson v. Ocwen Loan Servicing, LLC, No. EDCV 17-01373-
4 JGB (SPx), 2017 WL 10581088, at *8 (C.D. Cal. Dec. 11, 2017), aff’d, 744 Fed.
5 App’x 418 (9th Cir. 2018). “Because Plaintiff’s unlawful prong claim cannot
6 survive, Plaintiff’s unfair prong also must fail.” West v. Palo Alto Hous. Corp., No.
7 17-CV-00238-LHK, 2019 WL 2549218, at *26 (N.D. Cal. June 20, 2019).
8 Plaintiffs also have not adequately alleged that the moving Defendants’
9 “conduct is tethered to an[] underlying constitutional, statutory or regulatory
10 provision, or that it threatens an incipient violation of an antitrust law, or violates
11 the policy or spirit of an antitrust law.” Graham v. Bank of Am., N.A., 226 Cal.
12 App. 4th 594, 613 (2014). That is, “Plaintiffs have not pointed to any specific
13 constitutional, statutory, or regulatory provision that embodies a policy that [the
14 moving Defendants’ actions] violate.” Boris v. Wal-Mart Stores, 35 F. Supp. 3d
15 1163, 1171 (C.D. Cal. 2014), aff’d, 649 Fed. App’x 424 (2016) (emphasis added);
16 see also Mancha Dev. Co., LLC v. Houston Cas. Co., No. SACV 19-831 JVS
17 (KESx), 2019 WL 6703541, at *11 (C.D. Cal. July 9, 2019); Kaar v. Wells Fargo
18 Bank, N.A., No. 16-01290 WHA, 2016 WL 3068396, at *3 (N.D. Cal. June 1,
19 2016). Without that, Plaintiffs’ unfairness UCL claim fails.
20 Finally, Plaintiffs’ claim should be dismissed because “[t]he unfairness
21 prong of the UCL does not give the courts a general license to review the fairness
22 of contracts.” Johnson v. Select Portfolio Servicing, Inc., No. CV 15-9231-JFW
23 (ASx), 2016 WL 837895, at *4 (C.D. Cal. Mar. 3, 2016). Tellingly, the Amended
24 Complaint does not allege that the moving Defendants violated the agreements
25 Wong entered into when purchasing his tickets. See FAC ¶¶ 9–31. Because Wong
26 has not alleged that the refunds he seeks are compelled by those contracts, the UCL
27 claim is simply an impermissible attempt to re-write the agreements he willingly
28 entered. The UCL cannot be used for that purpose. Spiegler v. Home Depot
36
1388634
1 U.S.A., Inc., 552 F. Supp. 2d 1036, 1046 (C.D. Cal. 2008) (“[T]hat is not the deal
2 that plaintiffs struck, and the UCL cannot be used to rewrite their contracts or to
3 determine whether the terms of their contracts are fair.”), aff’d, 349 Fed. App’x 174
4 (9th Cir. 2009).
5 3. Counts 4 and 5 Fail to State Claims for Common-Law Civil
Conspiracy and Unjust Enrichment.
6
7 Plaintiffs’ final two claims fail because neither is recognized under California
8 law. “[C]ivil conspiracy is not itself a separate cause of action.” Lauter v.
9 Anoufrieva, 642 F. Supp. 2d 1060, 1097 (C.D. Cal. 2009); accord Vazquez v. Wells
10 Fargo Bank N.A., No. CV 15-9821 DSF (JCX), 2017 WL 4679726, at *3 (C.D.
11 Cal. June 5, 2017) (Fischer, J.). Even if it were, “mere conclusory allegations”—
12 like those here, see FAC ¶¶ 130–34—“that a conspiracy existed are insufficient.”
13 Novak v. Merced Police Dep’t, No. 1:13-CV-1402 AWI BAM, 2014 WL 730725,
14 at *5 (E.D. Cal. Feb. 24, 2014).
15 Likewise, unjust enrichment “is a general principle underlying various
16 doctrines and remedies, including quasi-contract,” but is “not a cause of action,”
17 Jogani v. Super. Ct., 165 Cal. App. 4th 901, 911 (2008), and “a claim for unjust
18 enrichment cannot stand alone as an independent claim for relief.” Iezza v. Saxon
19 Mortg. Servs., Inc., No. 10-03634 DDP (JCGx), 2010 WL 3834041, at *2 (C.D.
20 Cal. Sept. 28, 2010). Those claims, like the others, must be dismissed.
21 III. CONCLUSION
22 For the reasons stated above, the Court should take the following actions
23 with respect to Counts 1–5 against the Defendants Athletics Investment Group LLC
24 and San Francisco Baseball Associates L.P.:
25 (1) dismiss the claims for lack of subject-matter jurisdiction; or,
26 (2) issue an order compelling arbitration and dismiss or stay the claims; or,
27 (3) dismiss the claims for failure to state a claim.
28 ////
37
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1 Dated: July 29, 2020 KEKER, VAN NEST & PETERS

LLP
2
3 By: s/R. Adam Lauridsen

4 JOHN W. KEKER
R. ADAM LAURIDSEN
5 BENJAMIN D. ROTHSTEIN
BAILEY W. HEAPS
6
Attorneys for Defendants
7 ATHLETICS INVESTMENT
GROUP LLC, SAN FRANCISCO
8 and BASEBALL ASSOCIATES
L.P.
9
10
11
12
13
14
15
16
17
18
19
20
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1388634

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Case 2:20-cv-03643-DSF-JEM Document 78 Filed 07/29/20 Page 1 of 38 Page ID #:1013

1 KEKER, VAN NEST & PETERS LLP

1 GROUP LLC; NEW ENGLAND

7 Arizonans for Official English v. Arizona,

20 Bloom v. ACT, Inc.,

1 Cal. State Auto. Ass’n Inter-Ins. Bureau v. Barrett Garages, Inc.,

3 Campbell-Ewald Co. v. Gomez,

5 Chen v. Allstate Ins. Co.,

16 Epic Sys. Corp. v. Lewis,

26 Graham v. Bank of Am., N.A.,

1 Guadagno v. E*Trade Bank,

3 Hall v. Sea World Entm’t, Inc.,

28 Kearns v. Ford Motor Co.,

1 Kilgore v. KeyBank, Nat. Ass’n,

5 Lee v. Ticketmaster L.L.C.,

18 Mazonas v. Nationstar Mortg. LLC,

26 Murillo v. Homebridge Fin. Servs., Inc.,

28 Nguyen v. Barnes & Noble Inc.,

1 Novak v. Merced Police Dep’t,

10 Perry v. MLB Advanced Media, L.P.,

15 Pinnacle Museum Tower Ass’n v. Pinnacle Mkt. Dev. (US), LLC,

23 Shearson/Am. Express, Inc. v. McMahon,

25 Spiegler v. Home Depot U.S.A., Inc.,

1 Summers v. Earth Island Inst.,

3 Swift v. Zynga Game Network, Inc.,

5 Vazquez v. Wells Fargo Bank N.A.,

10 Williamson v. McAfee, Inc.,

22 Cal. Civ. Code § 1761.............................................................................................. 33

28 Fed. Local R. 7-3 ..................................................................................................... 11

1 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:

1 Dated: July 29, 2020 KEKER, VAN NEST & PETERS

3 By: s/R. Adam Lauridsen

1 MEMORANDUM OF POINTS AND AUTHORITIES

1 contingency plans” and would announce the “effects on the schedule at an

1 Connor of the San Francisco Giants in Support of Motion to Dismiss or in the

1 clicking “Terms of Use” at the bottom of any page. Id. ¶ 17–19.

1 has standing to bring claims against the moving Defendants.4

1 necessitating this motion. See Comm’r MTD at 28.

1 In addition to having the opportunity to opt out, Wong had a “meaningful

16 Wong and the A’s agreed to an Arbitration Agreement broadly encompassing

7 When evaluating whether parties agreed to arbitrate, courts apply “ordinary

1 formed through such processes as “modified clickwrap” agreements. Swift v. Zynga

1 b. The SFGiants.com Terms Contain “Clear and

1 objections with respect to the existence, scope, or validity of the arbitration

1 SIMILAR PROCEEDING. The arbitrator(s) may not consolidate the claims of

1 a. Tickets are not “goods or services.”

1 Dated: July 29, 2020 KEKER, VAN NEST & PETERS

3 By: s/R. Adam Lauridsen

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