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Hall v. SeaWorld Entm't, Inc.

United States Court of Appeals for the Ninth Circuit

March 12, 2018, Argued and Submitted; May 14, 2018, Submission Withdrawn; August 28, 2018, Resubmitted, San Francisco, California; August 28, 2018, Filed

No. 16-55845


 [*450]  MEMORANDUM2

Holly Hall and other named plaintiffs (collectively, "Plaintiffs"), each of whom is  [*451]  seeking to represent one of three separate nationwide classes, appeal from the dismissal [**2]  of their Second Consolidated Amended Complaint ("SAC") under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs allege that SeaWorld Entertainment, Inc. ("SeaWorld") failed to disclose to park guests (and would-be park guests) facts about SeaWorld's treatment of its orcas. Based on the alleged omissions, Plaintiffs assert claims under consumer protection statutes of California, Florida, and Texas and claims for unjust enrichment under Florida and Texas law. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

] We review a Rule 12(b)(6) dismissal de novo and the denial of leave to amend a complaint for abuse of discretion. Curry v. Yelp Inc., 875 F.3d 1219, 1224 (9th Cir. 2017).

On appeal, the California Plaintiffs challenge only the dismissal of their claim under the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210 ("UCL"). They assert theories based on both the "fraudulent" and "unlawful" prongs of the UCL. The critical issue for Plaintiffs' "fraudulent" prong theory is whether SeaWorld had a duty to disclose the information Plaintiffs claim SeaWorld omitted. The broad duty to disclose proposed by Plaintiffs is not supported by any California or Ninth Circuit precedent. In their merits briefing, Plaintiffs relied heavily on Rutledge v. Hewlett-Packard Co., 238 Cal. App. 4th 1164, 1169, 190 Cal. Rptr. 3d 411 (2015), as modified on denial of reh'g (Aug. 21, 2015). However, interpreting Rutledge [**3]  and other California decisions, we recently held that, ] for a fraud by omission claim under California's consumer protection laws, the omitted fact "must relate to the central functionality of the product." Hodsdon v. Mars, Inc., 891 F.3d 857, 863 (9th Cir. 2018).

Plaintiffs attempt to distinguish Hodsdon on the ground that SeaWorld sells services (specifically, entertainment), not a manufactured product. But they offer no authority or persuasive argument in support of their position. We hold that there is no meaningful distinction between the sale of goods and services for purposes of the seller's duty to disclose. Plaintiffs do not allege any omitted flaw in the orca performances or any other aspect of their attendance at SeaWorld parks. Rather, the alleged omissions concerning the treatment of orcas reflect Plaintiffs' "subjective preferences," which do not relate to the central functionality of SeaWorld's services. See Hodsdon, 891 F.3d at 864.

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747 Fed. Appx. 449 *; 2018 U.S. App. LEXIS 24381 **; 2018 WL 4090110

HOLLY HALL; PAUL DANNER; VALERIE SIMO; JOYCE KUHL; ELAINE BROWNE, individually and on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. SEAWORLD ENTERTAINMENT, INC., Defendant-Appellee.


Prior History:  [**1] Appeal from the United States District Court for the Southern District of California. D.C. No. 3:15-cv-00660-CAB-RBB. Cathy Ann Bencivengo, District Judge, Presiding.

Hall v. Seaworld Entm't, Inc., 2018 U.S. App. LEXIS 12504 (9th Cir. Cal., May 14, 2018)


orcas, causal connection, disclose, omission, prong, leave to amend, fraudulent, amend

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Pleadings, Amendment of Pleadings, Leave of Court, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, De Novo Review, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Reviewability of Lower Court Decisions, Preservation for Review