closing SeaWorld during pandemic didn’t make “unlimited” entry passes deceptive

Kouball v. SeaWorld Parks & Entertainment, Inc., 2020 WL
5408918, No.: 20-cv-870-CAB-BGS (S.D. Cal. Sept. 9, 2020)

Kouball failed to state a claim under the usual California
statutes and common law causes of action by alleging that SeaWorld deceptively
failed to disclose that it intended to keep charging her for her annual pass
while its amusement and water parks were closed due to the pandemic. The parks
closed in March; in April, Kouball was charged the full amount of her monthly
payment of $48.99 for her annual passes. Kouball alleged that she would not
have paid for the membership had she known that she would not have access to
the park and that SeaWorld continues charging its customers monthly fees while
the parks remain closed.

Kouball failed to identify an affirmative misrepresentation
of “unlimited access,” but pled only her own subjective belief in such access.  “The complaint does not identify when and
where she purchased the annual membership passes, nor does it identify any
specific statement that SeaWorld made that she read, viewed, or heard, that led
her to a belief that she would have unlimited access to the parks.” (She did
cite the website where annual pass options say “unlimited omission” but didn’t
allege reliance on the website or on this statement. This seems easily fixable.
Under each annual pass option it also states, “Restrictions may apply…hours
and services are subject to change or cancellation without prior notice.” Would
reasonable consumers think the park could be completely closed under these
terms?)

Nor did she successfully plead a deceptive omission. Since
she relied on her own subjective belief, disclosure wouldn’t have helped, and
also she didn’t allege that SeaWorld had a duty to disclose. “Under California
law, an allegedly fraudulent omission is actionable only if the omission is ‘contrary
to a representation actually made by the defendant, or an omission of a fact
the defendant was obliged to disclose.’” In particular, “SeaWorld, like the
rest of the world, would not have been aware it would need to temporarily close
its parks due to an unprecedented global pandemic. Moreover, such temporary
closures were likely required under state or local orders and the decision on
how to charge customers or provide other relief would be dependent on the
agreements between them.”

Also, the CLRA covers only “goods or services,” and an unlimited
entry pass is neither.

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