You are an attorney at the law firm that represents Danfield's Auto Express. Your supervisor, Attorney Donna Defense, wants you to draft an internal memorandum of law to her assessing whether or not Danfield's should file for summary judgment regarding Paul's claims against Danfield's based upon the Supreme Court decision Scott v. Harris, 550 U.S. 372 (2007), where the Court ruled that a party's version of events does not need to be credited by a court for purposes of summary judgment if it is "blatantly contradicted" by the record.

Attorney Defense believes that the amount of evidence that Danfield's has developed strongly suggests that the accident was caused by the plaintiff not paying attention to the road, as opposed to the brakes failing. She wants to know if the court would find that the evidence is sufficient enough to find that the plaintiff's assertions that the brakes did fail need not be credited by the court because the rest of the evidence blatantly contradicts the assertions.

She wants you to explain the legal standards that will apply to a summary judgment motion, including standards from Supreme Court cases like Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and the blatantly contradicted standard in Scott v. Harris, and then analyze the facts of the case to determine if Danfield's is likely to succeed if they file a motion for summary judgment.

She states that a prior associate started the project and found five cases in addition to Scott v. Harris that you should use to make your assessment. These cases are:

Hays v. Transportation Sec. Admin., 2014 WL 3661493 at *1 (C.D.Cal., Jan. 30, 2014).

Simril v. Wal-Mart Stores, Inc., 2017 WL 2999031, at *3 (C.D. Cal., Jun. 9, 2017).

Pryor v. SF City & County, 2013 WL 12199455 at *3 (N.D.Cal., Sep. 19, 2013).

Creal v. City of Fairfield, 2007 WL 2019624 at *1 (E.D.Cal., Jul. 10, 2007).

Oliver v. Greene, 613 F. App'x 455, 457 (6th Cir. 2015). You can do additional research and use other cases as well, if you would like to do so. In preparing the

memoranda, Attorney Defense tells you to rely on the following information for the facts: 1. The plaintiff's complaint in paragraphs 16 and 17 that assert the following:

16. On the drive back to Danfield's, while near Lake City, Northern California, plaintiff's car began to overheat. As plaintiff tried to get off the road, the car's brakes failed and did not stop the vehicle.

17. As a result of the brake failure, plaintiff's car went off the road and into an embankment causing the car to flip over and slide on its roof.

2. The plaintiff's deposition where he stated as follows: Q: In paragraph 16 of your complaint, you assert that your car began to overheat, you tried to

get off the road, and your brakes failed and did not stop the car, correct? A: Correct. Q: Tell me exactly what happened.

A: As the complaint says, the car started to overheat. I saw the temperature gauge light come on and some other lights started flashing. I then tried to get off the road to stop, but the car would not stop. I noticed some cars ahead of me start to slow down and stop, so I started to panic that

I would not be able to stop. I started to slam on the brakes, but they still did not work, so I went off to the side of the road to avoid the cars in front of me, and the car went into an embankment and tipped over.

Q: Any idea what time that was? A: I think it was around 4:30 p.m.

Q: Were you texting or using your phone for any reason at that time?

A: I don't believe so.

Q: Does that mean no?

A: It means I don't believe so.

Q: So then, it is possible that you were texting at that time?

A: I am not sure. I don't recall texting right before the accident occurred.

Q: Let me show you a document. Do you recognize this? A: I do not.

Q: It is a copy of your cell phone record that we received from you during discovery. Take another look and see if it looks familiar.

A. Ok, yes it does. I see my phone number.

Q: Do you see the entry here that says a text was sent at 4:28 p.m. on the day in question? A: Ah, ok yes I do.

Q: Ok, now you just said the accident occurred at 4:30 so it looks like you were texting right around that time, correct?

A: Yes, I guess that is right. I believe I texted a friend to ask them what to do about the car overheating and explained the various dashboard lights that were flashing. That did not interfere with my driving or cause the accident if that is what you are getting at. I saw the cars ahead of me and had plenty of time to stop if the brakes had worked.

3. After the deposition, Donna Defense subsequently obtained the actual text message that was sent at 4:28 pm. It states: "can you meet us at 9 for dinner? Not sure if we can make it before then."

4. The investigator that works for you law firm was able to obtain an affidavit from a person that witnessed the accident named William Witness. The affidavit says the following:

I was driving near Lake City, Northern California, on February 5, 20xx about 4:30 p.m. It was a two-lane road. I saw a BMW car in the lane beside me with a male driver and female passenger. They were laughing and having a good time and did not seem to be paying much attention to the road. The man had his cell phone in his hand and seemed to be texting with one hand. The traffic was backed up ahead of us for some reason and as I started to slow down, I noticed that the BMW did not. As it approached the cars stopped ahead, it was going pretty fast. Just before it ran into the back of one of the cars, it swerved to the left to miss the cars, and went off the road into an embankment and flipped over. I did not notice the car's brake lights come on at any time.

My wife happened to be taking a video of scenery and it captured what I saw. You can see the two of them talking for a second, you can see the driver with his phone in his hand, and then you see the car keep going when we stop, the car not stopping, no brake lights coming on, and the car going off the road.

5. The video that shows what William Witness said it shows in his statement.

6. After the accident, Paul's auto insurance company had his car towed to a repair shop to estimate the damages and the cost to repair the car. The mechanic at the repair shop determined that improper installation of a heater hose caused the overheating, and improper installation of the brakes caused the brake failure. He noted that the improper installation of both would be fairly obvious to a trained mechanic. He has provided a sworn statement to that effect for Paul's case.

7. Danfield's obtained an expert that disagrees with the repair shop's findings. The expert will testify that there was no improper installation to the heater hose, or to the brakes. Rather, both were damaged in the accident, which made it appear that they were improperly installed, but in fact, they were not.

What would an internal memorandum of law to Donna Defense assessing whether Danfield's would be successful if it filed a motion for summary judgment under FRCP 56 and the cases noted above look like?