                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 09 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SUSAN YOON, an individual on behalf of           No. 09-55056
herself and on behalf of all those similarly
situated,                                        D.C. No. 2:08-cv-05712-R-JTL

             Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

THE GAP, INC.,

             Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted March 4, 2010
                              Pasadena, California

Before: RYMER, WARDLAW and N.R. SMITH, Circuit Judges.

       Susan Yoon appeals the district court’s grant of summary judgment on her

claims arising out of an advertisement run by The GAP in May 2006 (the “Summer

Promotion”). Yoon pleaded five claims: (1) violation of California’s Unfair



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Competition Law (“UCL”); (2) violation of California’s False Advertising Law

(“FAL”); (3) violation of California’s Consumer Legal Remedies Act (“CLRA”);

(4) common law fraud; and (5) breach of contract. The district court found that the

Summer Promotion was neither objectively misleading nor deceptive and granted

summary judgment in favor of The GAP on all the claims. We reverse and

remand.

      “[W]hether a business practice is deceptive will usually be a question of fact

. . . .” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Because

we cannot say that “[the Summer Promotion] itself ma[kes] it impossible for

[Yoon] to prove that a reasonable consumer was likely to be deceived,” id. at 939,

we reverse and remand the district court’s ruling that, as a matter of law, the

Summer Promotion was neither misleading nor deceptive, cf. Freeman v. Time,

Inc., 68 F.3d 285, 289–90 (9th Cir. 1995). Accordingly, the summary judgment

rulings on each of Yoon’s claims are reversed and remanded. Further, the district

court’s evidentiary rulings, ruling on the motion for continuance, and other

discovery rulings are now moot. Lastly, because the standing issue was not

determined by the district court, but was argued on appeal as an alternative method

of affirming the district court, we decline to address it in the first instance.




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      To help “preserve the appearance of justice” and because it would not “entail

waste and duplication out of proportion to any gain in preserving the appearance of

fairness,” unusual circumstances exist and cause us to reassign this case to a

different judge on remand. California v. Montrose Chem. Corp., 104 F.3d 1507,

1521 (9th Cir. 1997) (citing Smith v. Mulvaney, 827 F.2d 558, 563 (9th Cir. 1987)).

Upon remand, the Clerk of the United States District Court is instructed to assign

this case to another district court judge.


      REVERSE AND REMAND.




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