Kouball v. Seaworld Parks & Entertainment, Inc.
Filing
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ORDER Granting Defendant's Motion to Dismiss [Doc. No. 12 ]. Signed by Judge Cathy Ann Bencivengo on 9/9/2020. (anh)
Case 3:20-cv-00870-CAB-BGS Document 18 Filed 09/09/20 PageID.117 Page 1 of 13
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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LISA KOUBALL, on behalf of herself,
and all others similarly situated,
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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
Plaintiff,
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Case No.: 20-cv-870-CAB-BGS
v.
SEAWORLD PARKS &
ENTERTAINMENT, INC.,
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[Doc. No. 12]
Defendant.
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This matter is before the Court on a motion to dismiss Plaintiff’s complaint filed by
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Defendant SeaWorld Parks & Entertainment, Inc. (“SeaWorld”). [Doc. No. 12.] The Court
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held a telephonic hearing on September 9, 2020. For the reasons set forth below, the Court
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grants SeaWorld’s motion to dismiss.
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I.
BACKGROUND
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Plaintiff Lisa Kouball filed this putative consumer class action complaint against
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Defendant SeaWorld on May 8, 2020. [Doc. No. 1.] The complaint asserts claims for: (1)
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violation of California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§
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1750, et seq.; (2) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. &
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Prof. Code §§ 17200, et seq.; (3) violation of California’s False Advertising Law (“FAL”),
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Cal. Bus. & Prof. Code §§ 17500, et seq.; (4) breach of contract; (5) unjust enrichment;
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and (6) money had and received. [Id.]
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SeaWorld operates several amusement parks and water parks throughout the United
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States, with locations in San Diego, Orlando, and San Antonio. [Id. at ¶ 6.1] Plaintiff
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alleges SeaWorld offers annual passes that allow its customers to access its parks on an
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unlimited basis. [Id.] Plaintiff purchased four annual passes for SeaWorld’s San Diego
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location for which she is charged a total of $48.99 per month. [Id. at ¶ 10.] In March of
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2020, SeaWorld closed all its parks due to the COVID-19 pandemic. [Id. at ¶ 8.] On
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approximately April 23, 2020, Plaintiff was charged the full amount of her monthly
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payment of $48.99 for her annual passes even though Plaintiff did not have access to
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SeaWorld’s parks due to the closure. [Id. at ¶ 10.] Plaintiff alleges she “signed up for
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[SeaWorld’s] annual membership passes with the belief and on the basis that he [sic] would
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have access to SeaWorld San Diego amusement park at any time during the month in which
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she was charged.” [Id.] Plaintiff further alleges she would not have paid for the
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membership had she known that she would not have access to the park and that SeaWorld
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continues charging its customers monthly fees while the parks remain closed. [Id.]
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Plaintiff seeks to represent a Nationwide class and California subclass of all persons
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who were charged annual membership fees for a period in which SeaWorld’s parks were
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closed. [Id. at ¶ 12.] SeaWorld moved to dismiss the complaint on July 1, 2020. [Doc.
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No. 12.]
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II.
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Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss based on
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the court’s lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Plaintiff has the
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burden of establishing that the court has subject matter jurisdiction over an action. Assoc.
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of Med. Colls. v. U.S., 217 F.3d 770, 778-79 (9th Cir. 2000). In a class action at least one
LEGAL STANDARD
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Document numbers and page references are to those assigned by CM/ECF for the docket entry.
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of the named plaintiffs must meet the Article III standing requirements. Bates v. United
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Parcel Servs., Inc., 511 F.3d 974, 985 (9th Cir. 2007). Article III requires that: “(1) at least
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one named plaintiff suffered an injury in fact, (2) the injury is fairly traceable to the
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challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.”
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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks and citation
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omitted).
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Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to
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state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the
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sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is
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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes
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of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint
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as true and construe[s] the pleadings in the light most favorable to the non-moving party.”
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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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“[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of
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sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside Healthcare
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Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotations and citations omitted).
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Even under the liberal pleading standard of Rule 8(a)(2), which requires only that a
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party make “a short and plain statement of the claim showing that the pleader is entitled to
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relief,” a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
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elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted
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inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d
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1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)
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(“[A]llegations in a complaint or counterclaim may not simply recite the elements of a
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cause of action, but must contain sufficient allegations of underlying facts to give fair
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notice and to enable the opposing party to defend itself effectively.”). The court must be
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able to “draw the reasonable inference that the defendant is liable for the misconduct
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alleged.” Iqbal, 556 U.S. at 663. “Determining whether a complaint states a plausible
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claim for relief … [is] a context-specific task that requires the reviewing court to draw on
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its judicial experience and common sense.” Id. at 679.
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Because Plaintiff’s claims are all grounded in fraud, the complaint must satisfy the
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heightened pleading requirements of Federal Rule of Civil Procedure 9(b) which provides:
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“in alleging fraud or mistake, a party must state with particularity the circumstances
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constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The pleader must “identify the who,
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what, when, where, and how of the misconduct charged, as well as what is misleading
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about the purportedly fraudulent statement, and why it is false.” Davidson v. Kimberly-
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Clark Corp., 873 F.3d 1103, 1110 (9th Cir. 2017) (quoting Cafasso, U.S. ex rel. v. Gen.
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Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). These heightened pleading
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requirements apply equally to any claims based on UCL, FAL and CLRA claims which
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ground in fraud. Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009).
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III.
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SeaWorld moves to dismiss on the grounds that Plaintiff fails to plead all of her
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claims with the required specificity under Federal Rules of Civil Procedure 8(a) and 9(b),
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fails to state each of her claims as a matter of law, and lacks standing to seek injunctive
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relief.
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DISCUSSION
A. Standing
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SeaWorld argues that because Plaintiff failed to allege exposure to, or reliance on,
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any specific statement by SeaWorld, she has failed to allege standing to pursue her CLRA,
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UCL, and FAL claims. “[T]to have standing to bring a UCL, FAL, or CLRA claim,
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Plaintiffs must plead that they relied on the misleading materials.” Bronson v. Johnson &
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Johnson, Inc., No. C 12–04184 CRB, 2013 WL 1629191, at *2 (N.D. Cal. Apr. 16, 2013);
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see also Davidson v. Kimberly–Clark Corp., No. C 14–1783 PJH, 2014 WL 3919857, at
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*9 (N.D. Cal. Aug. 8, 2014) (“[T]o maintain a claim under the FAL and CLRA, as well as
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under any UCL claim premised on fraud or misrepresentation, a plaintiff must plead facts
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showing that she relied on the defendant’s alleged misrepresentation.”); see also Cohen v.
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DIRECTV, Inc., 178 Cal.App. 4th 966, 980 (Cal. Ct. App. 2009) (“[W]e do not understand
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the UCL to authorize an award for injunctive relief and/or restitution on behalf of a
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consumer who was never exposed in any way to an allegedly wrongful business practice.”).
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Thus, “in a false advertising case, plaintiffs meet this requirement if they show that,
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by relying on a misrepresentation . . . they ‘paid more for a product than they otherwise
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would have paid, or bought it when they otherwise would not have done so.’” Reid v.
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Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015) (quoting Hinojos v. Kohl’s Corp.,
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718 F.3d 1098, 1104 n.3, 1108 (9th Cir. 2013)); see also Kwikset Corp. v. Superior Ct., 51
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Cal.4th 310, 322 (2011) (holding that in a UCL case, to establish standing, “a party must .
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. . (1) establish a loss or deprivation of money or property sufficient to qualify as injury in
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fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e.,
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caused by, the unfair business practice or false advertising that is the gravamen of the
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claim.”) (emphasis in original).2 Put differently, “a UCL fraud plaintiff must allege he or
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she was motivated to act or refrain from action based on the truth or falsity of a defendant’s
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statement . . .” Kwikset, 51 Cal. 4th 310, 327 n.10.
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1. Affirmative Misrepresentations
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Plaintiff argues she specifically alleged that “she signed up for Defendant’s annual
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membership passes with the belief and on the basis that [s]he would have access to
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SeaWorld San Diego amusement park at any time during the month in which she was
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charged [and] would not have paid for the membership, or would not have paid for it on
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the same terms, had she known that she would not have access to Defendant’s amusement
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park.” [Doc. No. 1 at ¶ 10.] Plaintiff’s allegations fail to identify any statement made by
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See also Moore v. Apple, Inc., 73 F.Supp.3d 1191, 1200 (N.D. Cal.2014) (“[T]he Court has consistently
required allegations of actual reliance and injury at the pleading stage for claims under all three prongs of
the UCL where such claims are premised on misrepresentations.”); Williamson v. Apple, Inc., No. 5:11–
CV–00377 EJD, 2012 WL 3835104, at *4 (N.D. Cal. Sept. 4, 2012) (“[A] plaintiff asserting a CLRA
claim which sounds in fraud must establish reliance and causation.”); Cattie v. Wal–Mart Stores, Inc., 504
F.Supp.2d 939, 946 (S.D. Cal.2007) (“California requires a plaintiff suing under the CLRA for
misrepresentations in connection with a sale to plead and prove she relied on a material
misrepresentation.”).
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SeaWorld, which Plaintiff relied on, proclaiming the alleged “unlimited access” to its
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parks. Instead, Plaintiff admits that the only thing she actually relied on was her own
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subjective belief that she would have unlimited access to the parks. This alone is
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insufficient under any pleading standard, let alone the heightened pleading standards of
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Rule 9(b), to allege actual reliance on an affirmative misrepresentation. Plaintiff’s citation
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to Hendricks v. StarKist, Co., 30 F. Supp. 3d 917, 923-24 (N.D. Cal. 2014), only highlights
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this issue. In StarKist, the plaintiff alleged he purchased a 5-ounce can of StarKist Tuna,
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relied on the packaging in purchasing the product, and identified specific claims or
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statements made on the packaging. Here, Plaintiff merely provides vague and general
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allegations. The complaint does not identify when and where she purchased the annual
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membership passes, nor does it identify any specific statement that SeaWorld made that
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she read, viewed, or heard, that led her to a belief that she would have unlimited access to
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the parks. Accordingly, to the extent Plaintiff’s CLRA, UCL, and FAL claims are based
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on affirmative misrepresentations by SeaWorld, Plaintiff’s claims are DISMISSED
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without prejudice for lack of standing.
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2. Omissions
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Under California law, an essential element for a fraudulent omission claim is actual
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reliance. Daniel v. Ford Motor Co., 806 F.3d 1217, 1225 (9th Cir. 2015) (citing In re
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Tobacco II Cases, 46 Cal. 4th 298 (2009)). As with affirmative misrepresentations, “[t]o
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prove reliance on an omission, a plaintiff must show that the defendant’s nondisclosure
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was an immediate cause of the plaintiff’s injury-producing conduct.” Id. In other words,
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“a plaintiff must show that had the omitted information been disclosed, one would have
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been aware of it and behaved differently.”
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CIV206CV02573JAMKJM, 2009 WL 2971553, at *2 (E.D. Cal. Sept. 11, 2009) (internal
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quotation marks omitted).
Sanchez v. Wal Mart Stores, Inc., No.
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As discussed above, Plaintiff does not allege that she read, viewed, or heard anything
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when making her purchase of the annual membership passes. While Plaintiff alleges that
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she “would not have paid for the membership, or would not have paid for it on the same
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terms, had she known that she would not have access to Defendant’s amusement park”
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[Doc. No. 1 at ¶ 10], Plaintiff also alleges that the only thing she relied on when making
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her purchase was her own subjective belief. Thus, regardless of what she alleges should
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have been disclosed, it would not have made a difference as she relied solely on her own
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beliefs. Plaintiff does not identify she actually viewed or relied on anything SeaWorld
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said, and therefore the complaint fails to show how if any omitted information had been
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disclosed, Plaintiff would have acted any differently when she manifested her own beliefs
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on the idea of unlimited access.
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Even if Plaintiff had adequately alleged standing for claims based on an omission,
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SeaWorld also argues that Plaintiff failed to allege a duty to disclose any purported
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omission.
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misrepresentation (false representation, concealment, or nondisclosure): (b) knowledge or
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falsity (or scienter): (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance;
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and (e) resulting damage.” Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1163 (9th
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Cir. 2012). Under California law, an allegedly fraudulent omission is actionable only if
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the omission is “contrary to a representation actually made by the defendant, or an omission
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of a fact the defendant was obliged to disclose.” Daugherty v. Am. Honda Motor Co., 144.
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App. 4th 824, 835 (2006). “California courts have generally rejected a broad obligation to
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disclose.” Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th Cir. 2012). “[U]nder
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the CLRA, plaintiffs must sufficiently allege that a defendant was aware of a defect at the
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time of sale to survive a motion to dismiss.” Id. at 1145. The same is true for a claim
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under the UCL. Id. (allegation of knowledge at the time of sale required). Similarly, a
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plaintiff bringing a claim under the FAL must allege sufficient facts to show that a
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defendant knew, or should reasonably have known, the false or misleading statements were
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false when they were made. Punian v. Gillette, No. 14–cv–5028–LHK, 2015 WL 4967535,
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at * 9 (N.D. Cal. Aug. 20, 2015).
“The elements of a cause of action for fraud in California are (a)
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Plaintiff’s theory for a fraudulent omission claim is that SeaWorld failed to disclose
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that it would continue charging annual passholders while the parks were closed and that
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only SeaWorld was privy to this fact. Plaintiff failed to allege SeaWorld knew or should
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have known, of the existence of any material fact that it should have disclosed. SeaWorld,
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like the rest of the world, would not have been aware it would need to temporarily close its
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parks due to an unprecedented global pandemic. Moreover, such temporary closures were
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likely required under state or local orders and the decision on how to charge customers or
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provide other relief would be dependent on the agreements between them. Accordingly,
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to the extent Plaintiff’s CLRA, UCL, and FAL claims are based on an omission by
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SeaWorld, Plaintiff’s claims are DISMISSED without prejudice for lack of standing and
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failure to allege a duty to disclose any purported omission.
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B. Specific Statement under CLRA, UCL, and FAL Claims
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Even if Plaintiff adequately alleged actual reliance on a misrepresentation or
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omission to establish standing, SeaWorld contends Plaintiff’s CLRA, UCL, and FAL
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claims still fail because the complaint does not identify with sufficient particularity any
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statement or purported omission by SeaWorld. SeaWorld argues the complaint instead
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contains vague allegations which are insufficient under Rule 9(b). Rule 9(b) requires that
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Plaintiff allege “the who, what, when, where, and how” of the misrepresentations or
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omissions at issue. Kearns, 567 F.3d at 1124.
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As discussed above, the complaint does not identify any statement SeaWorld made
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that Plaintiff relied on and centers around Plaintiff’s subjective belief about unlimited
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access to the park. This is insufficient under the liberal pleading standards let alone the
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heightened pleading standards under Rule 9(b). In her opposition, Plaintiff attempts to
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show the who, what, when, where, and how, from the complaint, but it falls short. To be
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sufficient, Plaintiff needs to allege what specific statements SeaWorld made, when and
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where it made it, and why the statements are false. As for the representation of “unlimited”
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access, the complaint does not provide where or in what context SeaWorld made this
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statement. Plaintiff only includes a footnote cite to SeaWorld’s website where under
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various annual pass options it states, “unlimited admission.”3 The complaint does not
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allege Plaintiff ever relied on the website or this statement from the website when she
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purchased the passes. Moreover, under each annual pass option it also states, “Restrictions
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may apply. . . hours and services are subject to change or cancellation without prior notice.”
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Therefore, by agreeing to purchase the annual pass Plaintiff would have agreed to the above
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allowing for a temporary closure without notice. Beyond this footnote cite to SeaWorld’s
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website, the complaint fails to identify what SeaWorld said, where and when it said it, or
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how it is false. Nor does the complaint include any facts on when and where Plaintiff
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purchased the passes. Accordingly, Plaintiff’s CLRA, UCL, and FAL claims based on
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affirmative misrepresentations are DISMISSED without prejudice for failure to state a
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claim.
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C. Application of the CLRA
The CLRA prohibits practices “undertaken . . . in a transaction . . . which results in
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the sale or lease of goods or services.” Cal. Civ. Code § 1770(a). The CLRA:
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defines “goods” as “tangible chattels bought or leased for use primarily for
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personal, family, or household purposes, including certificates or coupons
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exchangeable for these goods, and including goods that, at the time of the sale
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or subsequently, are to be so affixed to real property as to become a part of
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real property, whether or not severable from the real property.” (Civ. Code,
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§ 1761, subd. (a).) It defines “services” as “work, labor, and services for other
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than a commercial or business use, including services furnished in connection
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with the sale or repair of goods.” (Id., § 1761, subd. (b).)
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Fairbanks v. Superior Court, 46 Cal. 4th 56, 60–61 (2009).
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As the parties are aware, this Court previously held in Hall v. SeaWorld Ent., Inc.,
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Case No. 3:15-CV-660-CAB-RBB, 2015 WL 9659911 (S.D. Cal. Dec. 23, 2015), that “to
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https://seaworld.com/san-diego/annual-pass/
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hold that the tickets, or more specifically the admission to the parks that the tickets provide,
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constitute a service requires a strained and unnatural construction of the term” services. Id.
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at *15. Plaintiff argues the Court should instead rely on Anderson v. SeaWorld Parks and
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Ent., Inc., 2016 WL 8929295 (N.D. Cal. Nov. 7, 2016), where the court disagreed and held
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“the term ‘services’ encompasses the ‘educational and entertainment services’” the
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plaintiff alleged she purchased from SeaWorld. Id. at *12.
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The Court is not persuaded and declines to construe the term services in this broad
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fashion. Instead the Court continues to follow the reasoning by the California Supreme
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Court in Fairbanks, that “[r]ather than applying to all businesses, or to business
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transactions in general, the Consumers Legal Remedies Act applies only to transactions for
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the sale or lease of consumer ‘goods’ or ‘services’ as those terms are defined in the act.”
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46 Cal. 4th at 65. Here, the annual passes merely allow access to SeaWorld’s parks, and
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do not qualify as “services” in the Court’s view. Cf. Kissling v. Wyndham Vacation
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Resorts, Inc., No. 15–CV–04004–EMC, 2015 WL 7283038, at *5 (N.D. Cal. Nov. 18,
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2015) (holding that “timeshare points do not fall under the CLRA’s definition of ‘goods’
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or ‘services.’”); Wixon v. Wyndham Resort Dev. Corp., No. C07–02361 JSW, 2008 WL
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1777590, at *4 (N.D. Cal. Apr. 18, 2008) (holding that timeshare credits which provide “a
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vacation license, the right to use, occupy and enjoy . . . properties” do not qualify as
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services).
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Likewise, Plaintiffs’ UCL claims, to the extent they are premised on a violation of the
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CLRA, are also DISMISSED with prejudice. Silcox v. State Farm Mut. Auto. Ins. Co.,
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No. 14CV2345 AJB MDD, 2014 WL 7335741, at *5 (S.D. Cal. Dec. 22, 2014) (“Where a
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plaintiff cannot state a claim under the “borrowed” law, she cannot state a UCL claim
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either.”).
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Accordingly, Plaintiff’s CLRA claims are DISMISSED with prejudice.
D. Injunctive Relief
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SeaWorld contends Plaintiff has not established standing for injunctive relief.
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Plaintiff argues she alleged she continues to be charged without access to the parks and
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therefore faces an actual and imminent harm.
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To establish standing for injunctive relief, Plaintiff must “demonstrate that [she] has
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suffered or is threatened with a concrete and particularized legal harm, coupled with a
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sufficient likelihood that [she] will again be wronged in a similar way.” Bates v. United
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Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (internal quotations omitted). Here,
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although Plaintiff does not allege that she plans to repurchase the pass, she alleges she
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continues to face imminent harm because she continues to be charged while the parks are
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closed. See Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (holding
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that a deceived consumer may have standing to sue for injunctive relief based on allegedly
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false advertising, but the consumer must still establish the threat of actual and imminent
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injury). However, because Plaintiff fails to allege any facts on when she purchased the
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pass, when the pass is set to expire, coupled with the fact that the park may have re-opened
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since the complaint, the threat of actual and imminent harm remains speculative.
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Accordingly, without further information, Plaintiff’s claims for injunctive relief are
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DISMISSED without prejudice.
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E. Breach of Contract
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“The elements for a breach of contract claim are: (1) the existence of the contract;
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(2) performance by the plaintiff or excuse for nonperformance; (3) breach by the defendant;
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and (4) damages.” Castro v. Wells Fargo Bank, N.A., No. CV 12-2393 RSWL AGRX,
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2012 WL 2077294, at *1 (C.D. Cal. June 6, 2012).
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Here, Plaintiff has alleged the existence of a contract with SeaWorld and
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performance, via her purchase of the annual passes. However, Plaintiff’s allegations on
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the substance of the terms of the contract remain vague and conclusory. As discussed
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above, Plaintiff purchased the annual passes with a belief she would have unlimited access
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to the parks. Yet, Plaintiff does not support this belief with any sufficient factual support.
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Instead, the website citation that Plaintiff provided contained terms that would dispute her
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allegation. While it is not necessary to attach a contract for a plausible breach of contract
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claim, it would provide a means for Plaintiff to bolster the factual support behind her breach
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on contract claim in this instance to identify a plausible breach. Accordingly, Plaintiff’s
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breach of contract claim is DISMISSED without prejudice.
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F. Unjust Enrichment and Money Had and Received
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“[I]n California, there is not a standalone cause of action for ‘unjust enrichment,’
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which is synonymous with ‘restitution.’” Astiana v. Hain Celestial Group, Inc., 783 F.3d
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753, 762 (9th Cir. 2015) (citing Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1370
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(2010)). “As a matter of law, an unjust enrichment claim does not lie where the parties
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have an enforceable express contract.” Id. Unjust enrichment must be plead along with a
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quasi-contract cause of action, such as alleging that the contract was void or rescinded. See
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id. A plaintiff may assert alternative theories, even if those theories appear inconsistent.
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Klevin v. Chevron U.S.A., Inc., 202 Cal. App. 4th 1342, 1388 (2012). An action for money
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had and received is based on the existence of a quasi-contract. See Pollak v. Staunton, 210
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Cal. 656, 665 (1930). “An action in quasi-contract . . . does not lie when an enforceable,
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binding agreement exists defining the rights of the parties.” Paracor Fin., Inc. v. Gen.
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Elec. Capital Corp., 96 F.3d 1151, 1167 (9th Cir. 1996) (citation omitted); see also Lloyd
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v. Williams, 227 Cal.App.2d 646, 649 (1964).
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Here, Plaintiff does not allege a quasi-contractual theory. Plaintiff maintains there
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is a valid, enforceable contract through the purchase of the annual passes. Therefore, any
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amendment to these claims would be futile and Plaintiff’s request for recovery under unjust
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enrichment and money had and received are DISMISSED with prejudice.
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IV.
CONCLUSION
For the reasons discussed above, SeaWorld’s motion to dismiss is GRANTED.
Plaintiff’s claims are dismissed as follows:
1. Plaintiff’s CLRA, unjust enrichment, and money had and received claims are
DISMISSED with prejudice;
2. Plaintiff’s UCL and FAL claims based on an omission by SeaWorld, are
DISMISSED without prejudice;
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Case 3:20-cv-00870-CAB-BGS Document 18 Filed 09/09/20 PageID.129 Page 13 of 13
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3. Plaintiff’s UCL and FAL claims based on an affirmative misrepresentation by
SeaWorld are DISMISSED without prejudice;
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4. Plaintiff’s injunctive relief claim is DISMISSED without prejudice;
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5. Plaintiff’s breach of contract claim is DISMISSED without prejudice.
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Plaintiff may file an amended complaint by September 23, 2020. Failure to do so
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will result in a final judgment of dismissal. SeaWorld must respond to any amended
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complaint within the time required by the applicable rules.
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It is SO ORDERED.
Dated: September 9, 2020
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20-cv-870-CAB-BGS
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