Metropolitan News-Enterprise


Wednesday, October 27, 2021


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Ninth Circuit:

Putative Class Action Against SeaWorld for Alleged ‘Bilking’ Properly Dismissed

Woman Sued Over Monthly Charges for Annual Passes Though Theme Park Was Closed in Light of Pandemic


By a MetNews Staff Writer


A woman who bought four annual passes to SeaWorld in San Diego, for which she was charged $48.99 monthly, is not entitled to a refund of monies drawn by the park’s operator in months when the facility was closed in light of the COVID-19 pandemic, the Ninth U.S. Circuit Court of Appeals has held in affirming the dismissal of a putative nationwide class action.

What the plaintiff, Lisa Kouball, did not allege in her action for violation of California’s Consumers Legal Remedies Act, the Unfair Competition Law (“UCL”), or the False Advertising Law was that an express promise had been made to her that no charges would be assessed during periods of closure, a memorandum opinion, filed Monday, says.

Neither the District Court, in its Sept. 9, 2020 order, nor the Ninth Circuit, discussed a prong of the UCL that does not require the showing of a false representation.

Allegations of Complaint

The complaint, filed May 8, 2020, sets forth that defendant SeaWorld Parks & Entertainment, Inc., which is headquartered in Florida, in or about March 2020, closed its parks in various U.S. cities in light of the pandemic. The aggregate claims of proposed class members, it declares, exceed $5 million, as required for diversity jurisdiction, under the Class Action Fairness Act.

The pleading alleges that SeaWorld, after closing its parks, “continued charging its customers monthly membership fees—at full price,” noting:

“Defendant is able to unilaterally charge its customers monthly fees without their consent as it is in possession of its members’ debit and credit card information. Thus, Defendant has made the deliberate decision to bilk its customers out of a monthly membership fee while its members do not have access to Defendant’s amusement parks and water parks. The sole reason Defendant’s customers pay monthly membership fees is to have access to Defendant’s amusement parks and water parks.”

Kouball’s complaint alleges that she signed up for annual subscriptions “with the belief” that she “would have access to SeaWorld San Diego amusement park at any time during the month in which she was charged.”

Inadequate Pleading

The Ninth Circuit panel agreed with District Court Judge Cathy Ann Bencivengo of the Southern District of California that the allegations do not suffice. Bencivengo said in her order dismissing the claims:

“[T]he complaint does not identify any statement Sea World made that Plaintiff relied on and centers around Plaintiff s subjective belief about unlimited access to the park. This is insufficient….”

She elaborated:

“In her opposition, Plaintiff attempts to show the who, what, when, where, and how, from the complaint, but it falls short. To be sufficient, Plaintiff needs to allege what specific statements Sea World made, when and where it made it, and why the statements are false. As for the representation of ‘unlimited’ access, the complaint does not provide where or in what context Sea World made this statement. Plaintiff only includes a footnote cite to Sea World’s website where under various annual pass options it states, ‘unlimited admission.’ The complaint does not allege Plaintiff ever relied on the website or this statement from the website when she purchased the passes.”

‘Restrictions May Apply’

Bencivengo pointed out that each pass says:

“Restrictions may apply...hours and services are subject to change or cancellation without prior notice.” The judge declared:

“Therefore, by agreeing to purchase the annual pass Plaintiff would have agreed to the above allowing for a temporary closure without notice. Beyond this footnote cite to SeaWorld’s website, the complaint fails to identify what Sea World said, where and when it said it. or how it is false. Nor does the complaint include any facts on when and where Plaintiff purchased the passes.”

Dismissal was with leave to amend, but Kouball opted to stand on the complaint, and the action was dismissed with prejudice.

Ninth Circuit’s Decision

The Ninth Circuit—in an opinion signed by Senior Judge Andrew J. Kleinfeld and Judges Ryan D. Nelson and Lawrence VanDyke—agreed with Bencivengo’s reasoning.

“…Kouball’s California’s Consumers Legal Remedies Act, Unfair Competition Law, and False Advertising Law claims were properly dismissed because Kouball failed to allege actual reliance on any specific misrepresentation made by SeaWorld,” the opinion says.

‘Unfair’ Prong

Not discussed was one of the bases for a claim under the UCL which Kouball invoked. Business & Professions Code §17200, the seminal statute of the UCL, provides that “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice….”

The complaint in the case avers:

“Defendant’s business practices, described herein, violated the ‘unfair’ prong of the UCL in that its conduct is substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and unscrupulous, as the gravity of the conduct outweighs any alleged benefits. Defendant’s advertising and its charging of membership fees while its amusement parks and water parks are closed is of no benefit to consumers.”

The California Supreme Court in the 2013 decision in Zhang v. Superior Court pointed to three differing tests for unfairness laid down by courts of appeal, not choosing among them, and last year, in Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda County (2020) again declined to resolve the conflict. Neither Bencivengo nor the Ninth Circuit panel discussed any of the tests.

Other Claims

Kouball also sued for breach of contract, unjust enrichment, and money had and received. Monday’s opinion affirms dismissal of those claims.

It says that “Kouball failed sufficiently to allege the terms of the contract”; that “unjust enrichment is barred where a contract governs the dispute between the parties and because Kouball did not allege sufficient specifics to set out her claim”; and that “common count claims stand or fall with more specific claims, like unjust enrichment, when the specific claims are based on the same facts and seek the same recovery.”

The case is Kouball v. Sea World Parks & Entertainment, Inc., 20-56069.


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