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.