Anderson et al v. SeaWorld Parks and Entertainment

Filing 105

ORDER DENYING 99 Motion to Dismiss Portions of Third Amended Complaint. Signed by Judge Jeffrey S. White on January 30, 2017. (jswlc3S, COURT STAFF) (Filed on 1/30/2017)

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NOT FOR CITATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Plaintiffs,

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Case No. 15-cv-02172-JSW

MARC ANDERSON, et al.,

ORDER DENYING MOTION TO
DISMISS

v.

Re: Dkt. No. 99
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SEAWORLD PARKS AND
ENTERTAINMENT, INC.,

United States District Court
Northern District of California

Defendant.
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Now before the Court for consideration is the motion to dismiss filed by Defendant

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SeaWorld Parks and Entertainment, Inc. (“SeaWorld”). The Court has considered the parties’

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papers, relevant legal authority, and the record in this case, and the Court finds the motion suitable

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for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The Court VACATES the

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motion hearing scheduled at 9:00 a.m. on February 3, 2017, and HEREBY DENIES Sea World’s

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motion. The parties shall appear at 11:00 a.m on February 3, 2017, for the case management

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conference.

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The Court has set forth the procedural history of this litigation and the facts in several prior

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orders, and it shall not repeat them here. SeaWorld now moves to dismiss portions of the Third

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Amended Complaint (“TAC”). Specifically, SeaWorld moves to dismiss the claim under the

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Consumer Legal Remedies Act (“CLRA”), which is asserted on behalf of Plaintiff Kelly Nelson

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(“Ms. Nelson”) and all others similarly situated. SeaWorld moves to dismiss the claim brought by

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Juliette Morizur (“Ms. Morizur”) based on the “unfair” prong of California’s Unfair Competition

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Law (“UCL”) on behalf of herself and all others similarly situated. The Court shall address the

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relevant facts in its analysis.
ANALYSIS

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A.

Applicable Legal Standard.
SeaWorld moves to dismiss for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6). When the Court resolves such a motion, the Court’s “inquiry is limited to the

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allegations in the complaint, which are accepted as true and construed in the light most favorable

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to the plaintiff.” Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under

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the liberal pleadings standard of Federal Rule of Civil Procedure 8(a)(2), “a plaintiff’s obligation

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to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

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and a formulaic recitation of the elements of a claim for relief will not do.” Bell Atlantic Corp. v.

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United States District Court
Northern District of California

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Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

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Pursuant to Twombly, a plaintiff must not allege conduct that is conceivable but must allege

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“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial

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plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the Defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009) (citing Twombly, 550 U.S. at 556).
In general, if the allegations are insufficient to state a claim, a court should grant leave to

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amend, unless amendment would be futile. See, e.g. Reddy v. Litton Indus., Inc., 912 F.2d 291,

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296 (9th Cir. 1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242,

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246-47 (9th Cir. 1990). If a court has granted a plaintiff leave to amend, and if the plaintiff has

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failed to correct deficiencies identified by the court, the court has “particularly broad” discretion to

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deny leave to amend. See, e.g., Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013).

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B.

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The Court Denies the Motion to Dismiss Ms. Nelson’s CLRA Claim.
SeaWorld moves to dismiss the CLRA claim on the basis that Ms. Nelson did not file the

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requisite venue affidavit with the TAC. The CLRA has specific venue requirements and provides

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that “[a]n action under subdivision (a) or (b) may be commenced,” inter alia, “in the county where

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the transaction or any substantial portions thereof occurred.” Cal. Civ. Code § 1780(d). The

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CLRA also requires that “[c]oncurrently with the filing of the complaint, the plaintiff shall file an
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affidavit stating facts showing that the action has been commenced in a county described in this

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section as a proper place for the trial of the action.” Id. If a plaintiff fails to file the required

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affidavit, a court must dismiss the action without prejudice. Section 1780(d) refers to an “action,”

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not a claim, and courts have described the purpose of this rule is to ensure that an “action” is

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commenced in a proper venue. See Seifi v. Mercedes-Benz, USA, LLC, No. 12-cv-5493-TEH,

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2013 WL 2285339, at *8 (N.D. Cal. May 23, 2013); In re Apple In-App Purchase Litig., 855 F.

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Supp. 2d 1030, 1037-38 (N.D. Cal. 2012).1 An “action” is defined as a “civil or criminal judicial

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proceeding.” See Black’s Law Dictionary (10th ed. 2014), at 35.
It is undisputed that when Plaintiffs filed the Second Amended Complaint, Plaintiff Marc

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Anderson filed an affidavit that set forth facts showing that venue was proper in this District when

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United States District Court
Northern District of California

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this “action” was commenced. Likewise, in the TAC, Plaintiffs include facts showing why venue

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is proper in this District and cite to Exhibit A. (Compare TAC ¶ 17 with Second Amended

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Complaint ¶ 17.) The allegations in the TAC are identical to the allegations in the SAC, and the

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Court can infer Plaintiffs’ refer to and rely on the affidavit that was filed with the SAC.
Accordingly, the Court concludes that the purpose of Section 1780(d) has been satisfied,

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and it DENIES SeaWorld’s motion to dismiss the CLRA claim. Cf. In re Easysavers Rewards

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Litig., 737 F. Supp. 2d 1159, 1178 (S.D. Cal. 2010) (denying motion to dismiss where affidavit

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filed by an individual who was no longer part of litigation but which established venue proper

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when action commenced).

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C.

The Court Denies the Motion to Dismiss Ms. Morizur’s UCL Claim.
SeaWorld moves to dismiss Ms. Morizur’s UCL claim on the basis that the facts fail to

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allege SeaWorld’s conduct is “unfair.” The paragraph in the second claim for relief, which sets

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forth allegations about the unfair prong is conclusory. However, the Plaintiffs incorporated by

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SeaWorld notes that at least one court within the Ninth Circuit has dismissed CLRA claims
on the basis that each of the named plaintiffs failed to file a venue affidavit. See In re Sony Grand
Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077,
1094 (S.D. Cal. 2010). The court in that case did not discuss the purpose of the venue affidavit
requirement and did not provide a detailed analysis of why it required a venue affidavit from each
plaintiff. The Court finds the reasoning in the Seifi and In re Apple In-App cases more persuasive,
and for that reason declines to follow In re Sony Grand.
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ref
ference facts from earlier in the TAC (See TAC ¶¶ 61, 65.) Ms. Morizu alleged th she asked
r
C.
C
ur
hat
d

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“Se
eaWorld’s tr
rainers quest
tions about their captive orca’s colla
apsed dorsal fins.” (TAC ¶ 20.) Ms.
C
.

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Mo
orizur also al
lleged that th trainers to her that t collapsed dorsal fins were “norm and also
he
old
the
d
s
mal,
o

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equ
ually commo in the wil They also told Ms. M
on
ld.
o
Morizur that captivity in general does not harm

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orc
cas.” (Id.)

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The par
rties dispute whether Sea
aWorld shou be permi
uld
itted argue th these alle
hat
egations are

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ins
sufficient to state a claim Plaintiffs argue SeaW
s
m.
World waived this argume by failing to raise it
d
ent

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in its earlier mo
i
otions, relyin on Federa Rule of C
ng
al
Civil Procedu 12(g)(2). SeaWorld argues that
ure

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it could not hav raised this argument until Plaintif filed the T
c
ve
u
ffs
TAC, because Ms. Mori
izur had not
cle
early alleged which repre
esentations she relied on to plead her UCL claim Yet, SeaW
s
n
r
m.
World has

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United States District Court
Northern District of California

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atta
acked portio of the Pla
ons
aintiffs’ claim in its prio motions, i
ms
or
including th portion of the FAL
hat
f

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cla that relie on Ms. Morizur’s con
aim
ed
nversations w SeaWor
with
rld’s trainers
s.

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The Co will not deny the mo
ourt
otion on the b
basis that Se
eaWorld sho
ould be barre from
ed

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ass
serting this argument und Rule 12(
a
der
(g)(2). SeaW
World did ass
sert, albeit in a footnote, in its
n
,

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mo
otion to dism the Seco Amended Complaint that “Plaint
miss
ond
t
tiffs also arg that even if
gue
n

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Mo
orizur’s FAL CLRA, an UCL ‘unla
L,
nd
awful’ claim all fail, he UCL ‘unfa claim sh
ms
er
fair’
hould remain
n

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… but cite to no facts in the SAC to sup
n
pport a UCL ‘unfair’ cla premised on her con
L
aim
nversation

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th
orld
s.”
t.
eply Br. at 15 n.12 (emph
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hasis added) In its
).)
wit the SeaWo trainers (See Dkt No. 88, Re

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Ord resolving the motion to dismiss the SAC, the Court state that Ms. M
der
g
n
t
e
ed
Morizur coul proceed
ld

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on her UCL cla to the ex
aim
xtent it was premised on the unfair p
p
n
prong. The C
Court finds n basis to
no

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rev that con
visit
nclusion, and it finds that SeaWorld’ s arguments are better ra
d
t
s
aised by way of a
y

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mo
otion for sum
mmary judgm or in op
ment
pposition to a motion for class certifi
r
fication.
CONCLU
USION

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For the foregoing re
easons, the Court DENIE SeaWorl motion t dismiss.
C
ES
ld’s
to

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IT IS SO ORDER
S
RED.

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Da
ated: January 30, 2017
y
___
__________
___________
__________
________
JEF
FFREY S. W
WHITE
Un
nited States D
District Judg
ge
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