Anderson v. SeaWorld Parks and Entertainment

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KELLY NELSON and JULIETTE Case No. 15-cv-02172-JSW MORIZUR, 8 FINDINGS OF FACT AND Plaintiffs, CONCLUSIONS OF LAW ON 9 DEFENDANT’S MOTION FOR v. PARTIAL JUDGMENT AND 10 FOLLOWING BENCH TRIAL ON SEAWORLD PARKS AND STANDING 11 ENTERTAINMENT, INC., Dkt. No. 547 12 Defendant.

13 On March 9, 10, and 11, 2020, the parties appeared before the Court for a bench trial on 14 the issues of whether Plaintiffs, Juliette Morizur (“Ms. Morizur”) and Kelly Nelson (“Ms. 15 Nelson”) (collectively Plaintiffs, unless otherwise noted), have Article III standing to seek 16 injunctive relief and statutory standing to pursue claims against Defendant SeaWorld Parks and 17 Entertainment, Inc. (“SeaWorld”) under California’s Unfair Competition Law, Business and 18 Professions Code section 17200, et seq. (the “UCL Claims”), California’s False Advertising Law, 19 Business and Professions Code section 17500, et se1q. (the “FAL claim”), and California’s 20 Consumer Legal Remedies Act, Civil Code sections 1780, et seq. (the “CLRA Claim”). 21 Ms. Nelson brings individual claims for alleged violations of the UCL, the FAL, and the 22 CLRA. She alleges economic injury based on the cost of her ticket to SeaWorld® San Diego.2 23 Ms. Nelson’s claims have been limited by prior rulings to the following statements: (1) SeaWorld 24 25

26 1 The Court granted SeaWorld’s motion to bifurcate the issue of standing from the merits.

27 2 When the Court refers to SeaWorld or any of its parks in the remainder of these findings of 1 “did not separate calves from mothers”; and (2) SeaWorld’s “captive orcas had similar lifespans to 2 those in the wild.” (Third Amended Complaint (“TAC”) ¶ 19.) Ms. Nelson alleges she saw these 3 statements on SeaWorld’s website. 4 Ms. Morizur brings an individual claim for alleged violations of the unfair prong of the 5 UCL. She claims economic injury based on the cost of a stuffed orca toy (the “Shamu plush”) that 6 she allegedly purchased at SeaWorld San Diego. Ms. Morizur’s claims are based on the following 7 statements: (1) collapsed dorsal fins are “normal, and also equally common in the wild”; and (2) 8 “captivity in general does not harm orcas.” (TAC ¶ 20.) Ms. Morizur claims a SeaWorld trainer 9 made these statements during her visit to SeaWorld San Diego. 10 Ms. Nelson and Ms. Morizur allege they would not have expended money on the ticket and 11 the Shamu plush, respectively, had they known the statements they claim to have relied on were 12 false. (See, e.g., id. ¶¶ 68, 82.) They seek restitution and ask the Court to issue an order that 13 would require “SeaWorld to inform the purchasing public on its website that captivity in general 14 negatively impacts orca health, that orca lifespans are shorter in captivity than in the wild, that 15 collapsed dorsal fins are common only in captive orcas, and that SeaWorld separates closely 16 related and tightly-knit orca family members.” (Id. ¶¶ 60, 70, 84, 85.b.) 17 At the close of Plaintiffs’ case, SeaWorld orally moved for judgment on partial findings on 18 Ms. Nelson’s claims, pursuant to Federal Rule of Civil Procedure 52(c). The Court reserved 19 ruling on that motion. (Trial Transcript (“Tr.”) at 348:11-367:17.) On April 17, 2020, SeaWorld 20 filed its motion for judgment on partial findings addressing each Plaintiff’s standing to seek relief. 21 The Court has carefully considered the trial testimony, the exhibits admitted in evidence, 22 and the parties’ arguments in their briefs on the Rule 52(c) motion, their post-trial briefs, and their 23 proposed findings of fact and conclusions of law. The Court issues the following findings of fact 24 and conclusions of law, which result in the Court’s conclusion that Plaintiffs lack Article III to 25 seek injunctive relief and lack statutory standing and that SeaWorld is entitled to a judgment in its 26 favor. 27 // 1 Plaintiff’s Witnesses 2 Kelly Nelson – Ms. Nelson testified that she visited SeaWorld San Diego in 2015 and 3 testified about the statements she allegedly relied on in making the decision to take that trip. She 4 also testified that her husband, Kenneth Nelson, obtained the tickets and testified about the manner 5 of payment. She also testified about whether she would return to SeaWorld in the future. At trial, 6 Ms. Nelson was hesitant in responding to certain questions, but her overall demeanor was neither 7 evasive nor hostile. The Court finds that Ms. Nelson’s testimony was not always credible, 8 although it found her more credible than Ms. Morizur. The Court will detail specific findings 9 below. 10 Juliette Morizur – Ms. Morizur testified about her visit to SeaWorld San Diego in April 11 2012, with her parents, her sister, and her grandparents, and testified about her alleged purchase of 12 the Shamu plush and its subsequent destruction. Ms. Morizur also testified about a conversation 13 with a SeaWorld trainer and the statements on which she allegedly relied. Ms. Morizur also 14 testified about whether she would return to SeaWorld or purchase its merchandise in the future. 15 Ms. Morizur’s demeanor was composed but defensive. The Court finds that Ms. Morizur 16 dissembled at times. As a result, it does not find Ms. Morizur’s testimony entirely credible but has 17 not discredited her testimony in its entirety. The Court details its specific findings below. 18 Peter J. Frey – Plaintiffs presented Mr. Frey through his deposition testimony. Mr. Frey 19 is a senior marketing officer for SeaWorld. He testified about some of the materials that included 20 statements on which Ms. Nelson stated she relied. The Court finds that Mr. Frey was a credible 21 witness, but it finds his testimony was not highly probative on the issues for which it was 22 presented. 23 Frederick Jacobs – Plaintiffs presented Mr. Jacobs through his deposition testimony. Mr. 24 Jacobs was Vice President of Communications at SeaWorld between 2010 through 2015 and 25 testified about SeaWorld’s public responses to the Blackfish film. The Court finds that Mr. Jacobs 26 was a credible witness, but it finds his testimony was not highly probative on this issues for which 27 it was presented. 1 Ms. Kermes worked at SeaWorld as a senior corporate affairs officer from 2013 until the summer 2 of 2016, when she was promoted to chief communications officer. Ms. Kermes testified about 3 SeaWorld’s responses to Blackfish and about materials that included statements on which Ms. 4 Nelson stated she relied. The Court finds that Ms. Kermes was a credible witness, but it finds her 5 testimony was not highly probative on the issues for which it was presented. 6 SeaWorld’s Witnesses 7 Joelle Morizur – Mrs. Morizur is Juliette Morizur’s mother, and SeaWorld was permitted 8 to treat her as a hostile witness. Mrs. Morizur testified about her recollections of the family trip to 9 SeaWorld San Diego, Ms. Morizur’s discussions with SeaWorld personnel, and the alleged 10 purchase and subsequent destruction of the Shamu plush. Mrs. Morizur was not able to recall 11 many events. On the whole, the Court finds Mrs. Morizur’s testimony credible, but it does not 12 find her testimony particularly probative. 13 Jean-Christophe Morizur – Mr. Morizur is Juliette Morizur’s father, and SeaWorld was 14 permitted to treat him as a hostile witness. Mr. Morizur testified about his recollections of the 15 family trip to SeaWorld, Ms. Morizur’s discussions with SeaWorld personnel, and the alleged 16 purchase and subsequent destruction of the Shamu plush. Mr. Morizur was not able to recall 17 many events. On the whole, the Court finds Mr. Morizur’s testimony credible, but it does not find 18 his testimony particularly probative. 19 Nicholas Robbins – Mr. Robbins is Ms. Morizur’s fiancé, and SeaWorld was permitted to 20 treat him as a hostile witness. Mr. Robbins testified about his knowledge of the alleged purchase 21 and subsequent destruction of the Shamu plush and Ms. Morizur’s views about SeaWorld. The 22 Court finds Mr. Robbins’ testimony credible and probative on the issues about which he testified. 23 Kenneth Nelson – SeaWorld presented Mr. Nelson through his deposition testimony. Mr. 24 Nelson testified about the Nelsons’ trip to SeaWorld in 2015 and the purchase of the tickets. Mr. 25 Nelson testified that he had a brain tumor removed in March 2018, which has affected his 26 memory. (Deposition of Kenneth Nelson (“K. Nelson Depo.”) at 9:24-10:4, 10:13-11:3, 11:8- 27 1 10.)3 The Court can neither credit nor discredit Mr. Nelson’s testimony, and it finds it marginally 2 probative on the issues about which he testified. 3 Melissa Fay – Ms. Fay is a senior trainer at SeaWorld, has worked exclusively with the 4 orcas since 2008, and was a trainer in April 2012. Ms. Fay also is depicted in one of the photos 5 Ms. Morizur took, which shows Ms. Fay participated in the One Ocean show the Morizur family 6 attended during that trip. She testified about her practices when she interacts with SeaWorld San 7 Diego guests after performances and also provided some testimony about the general practices of 8 SeaWorld trainers. The Court finds Ms. Fay was a credible witness, but her testimony was not 9 necessary to the Court’s decision. 10 ANALYSIS 11 If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter 12 judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable 13 finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial 14 findings must be supported by findings of fact and conclusions of law as required by Rule 52(a). 15 16 Fed. R. Civ. P. 52(c). SeaWorld stated its intent to “reserve on Ms. Morizur until the entire case 17 has been presented.” (Tr. at 357:13-14.) In its written motion, SeaWorld did not clearly delineate 18 where it believes Ms. Nelson failed to meet her burden based on the evidence she presented and 19 where it believes she failed to meet her burden based on the record in its entirety. The Court 20 exercises its discretion to resolve the motion based on the record as a whole. 21 Because the Court is the finder of fact, when it considers SeaWorld’s motion for judgment 22 on partial findings, it “is not required to draw any inferences in favor of the non-moving party; 23 rather the [Court] may make findings in accordance with its own view of the evidence.” Ritchie v. 24 United States, 451 F.3d 1019, 1023 (9th Cir. 2006). That does not preclude the Court from 25 drawing inferences in Plaintiffs’ favor where the evidence warrants; it simply is not required to do 26 so. See Mother v. Hawaii, 283 Fed. Appx. 514, 515 (9th Cir. 2008). 27 1 FINDINGS OF FACT4 2 1. Plaintiffs are residents of California. (Dkt. No. 544, Stipulated Finding of Fact 3 (“SFOF”) 1.) They retained counsel in this case in February 2016. (Tr. at 149:12-150:6, 296:13- 4 298:2, Exhibits (“Ex.”) 18, 42 (engagement letters).) 5 2. SeaWorld is a corporation organized under the laws of the state of Delaware and 6 maintains its principal place of business in Orlando, Florida. SeaWorld owns and operates 7 SeaWorld San Diego, SeaWorld San Antonio, and SeaWorld Orlando, each of which exhibits to 8 the public various species of animals, birds, and aquatic creatures, including Orcinus orca, which 9 is the scientific name for a killer whale. SeaWorld sells tickets to the public for admission to 10 SeaWorld San Diego, including at ticket counters at the entrance of SeaWorld San Diego. (SFOF 11 2, 4-6.) 12 3. In 2012, and continuing to the present day, SeaWorld maintained a website at the 13 address www.seaworld.org. In 2014 and 2015, SeaWorld maintained a website at the address 14 www.seaworldcares.com. (SFOF 7.) 15 4. The film Blackfish was released in 2013. After Blackfish was released, SeaWorld 16 publicly responded to the claims made against SeaWorld in that film. (SFOF 15; Deposition of 17 Jill Kermes (“Kermes Depo.”) at 23:11-13, 23:16, 23:18-20, 23:23-24:10.)5 18 5. On or about March 17, 2016, SeaWorld publicly announced that it would 19 discontinue breeding its orcas and announced that it would discontinue theatrical orca shows. 20 (SFOF 8-9.) 21 FINDINGS OF FACT REGARDING MS. NELSON 22 6. Ms. Nelson, her husband, and their children visited SeaWorld in 2015, and she 23 made the decision to do so. (Tr. at 18:22-19:2, 20:3-7.) SeaWorld argues the Court could find 24 25 4 To the extent that any of the Court’s findings of fact are included in the Court’s 26 conclusions of law, they shall be deemed findings of fact. Similarly, to the extent that any of the Court’s conclusions of law are included in the findings of fact, they shall be deemed conclusions 27 of law. 1 that Ms. Nelson and her family did not, in fact, visit SeaWorld.6 The Court finds Ms. Nelson’s 2 testimony that she visited SeaWorld to be credible and is sufficient to establish the fact of the visit. 3 Moreover, Ms. Nelson’s testimony is corroborated by her husband’s account of paying for 4 admission, even though he could not recall when they visited SeaWorld San Diego. (See K. 5 Nelson Depo. at 16:19-25, 22:23-25, 23:3.) It is undisputed that Mr. Nelson turned over the funds 6 used to pay for admission. The Court finds that the tickets were purchased at SeaWorld San 7 Diego. (Tr. at 48:16-17; K. Nelson Depo. at 22:6-11.) For reasons set forth in Finding of Fact 8 (“FOF”) 7, the Court finds that the visit took place before August 8, 2015. 9 7. While at SeaWorld, Ms. Nelson attended an orca show, which she found to be a 10 “circus type of exhibition.” (Tr. at 44:2-6.) On August 8, 2015, Ms. Nelson, using a pseudonym, 11 posted a negative review of the visit on Yelp!. That review refers to paying to visit SeaWorld. 12 (Id. at 46:1-23, 124:8-9, Ex. 38.) With the exception of the Yelp! review, there is no documentary 13 evidence of the ticket purchase, such as ticket stubs, a receipt, or credit card statements. 14 8. Ms. Nelson testified she believed the tickets cost $90 to $100 per person and 15 testified that she believed her husband used cash to pay for the tickets, which would have come 16 from a joint bank account. (Tr. at 48:5-14, 49:3-5, 49:11-16.) When she was deposed in 2017, 17 Ms. Nelson could not recall how Mr. Nelson paid for the tickets, but she testified that if Mr. 18 Nelson used a credit card, it would have been in Mr. Nelson’s name. (Tr. at 54:11-12.) Mr. 19 Nelson testified that it was “most likely” that he would have paid for the tickets with a credit card. 20 (K. Nelson Depo. at 22:23-25, 23:3.) Mr. Nelson also testified that he no longer has the credit 21 cards that he used during that time period. (Id. at 23:3-24:5, 25:17-26:6.) 22 9. Although the Nelsons had some financial difficulties after they moved to California 23 in 2008, by 2015 they had recovered from those difficulties. (See Tr. at 19:20-23.) Ms. Nelson 24 testified that she and Mr. Nelson have had joint finances for 25 years, and the Court credits that 25 testimony. (Tr. at 49:21-24.) Ms. Nelson was not able to explain why her recollection of how Mr. 26 Nelson paid for the tickets was better at trial than it was during her deposition. The Court finds 27 1 the discrepancy between her testimony on this point immaterial for reasons set forth in 2 Conclusions of Law (“COL”) 15 through 17. 3 10. Ms. Nelson testified that she watched Blackfish and that her best recollection was 4 that she saw it “anywhere between the beginning of 2015 and August 2015.” (Tr. at 151:22- 5 152:2.) Based on Facebook posts identified in the following paragraph, which express a negative 6 view of SeaWorld, the Court credits the testimony that Ms. Nelson saw Blackfish during that time 7 frame. 8 11. Although Ms. Nelson did feel Blackfish was slanted against SeaWorld, the movie 9 left her with such a negative impression that it led her to “despise” SeaWorld, views that are 10 supported by her Facebook posts between January and July 2015. (Tr. at 20:8-11, 22:5-19, 23:1-7, 11 101:24-104:23 (including Nelson Depo. at 191:20-192-6), 105:21-108:4 (including Nelson Depo. 12 202:13-24), 108:1-112:9 (including Nelson Depo. at 208:8-21), 112:11-15; Exs. 53, 56, 57-59.) 13 Ms. Nelson subsequently did some research on the internet and became aware that SeaWorld had 14 refuted “many of the things that were said in the movie.” (Tr. at 23:20-24, 60:25-61:6; see also id. 15 at 66:1-10 (including Nelson Depo. at 130:22-131:8), 75:2-5.) 16 12. In particular, Ms. Nelson testified that she recalled seeing statements that SeaWorld 17 did not separate calves from mothers and that orcas in captivity live as long as their counterparts in 18 the wild. (Id. at 23:25-24:10, 34:9-35:13, 36:6-16, 39:5-40:4.) Ms. Nelson testified that she saw 19 these statements on SeaWorld’s website, before her visit to SeaWorld San Diego. According to 20 Ms. Nelson, she saw them in a document entitled “Open Letter” and in a “small ad that says 21 ‘thriving’ in it,” which were contained in Exhibits 48 and 50. When challenged on cross- 22 examination, Ms. Nelson admitted that she was not sure where she saw the statements but knew 23 she “looked at SeaWorld’s information after” she saw Blackfish. (Id. at 24:5-25:16; see also id. 24 25:17-28:2, 34:22-38:17, 68:18-69:3, 170:19-24, 171:8-10 (recalls seeing Exhibit 48 on SeaWorld 25 website).) During her deposition Ms. Nelson could not recall where she saw either statement. (Tr. 26 at 68:3-16 (including Nelson Depo. at 156:5-10), 69:4-70:7 (including Nelson Depo. at 132:2-25), 27 71:5-24 (including Nelson Depo. at 134:8-21), 73:20-74:10 (including Nelson Depo. at 156:23- 1 13. Although at trial Ms. Nelson testified she knew what was on SeaWorld’s website in 2 2015, at her deposition she testified she did not “know what exactly SeaWorld had on its website 3 in 2015.” (Tr. at 74:12-24 (including Nelson Depo. at 248:19-21).) During her deposition, Ms. 4 Nelson also testified she had not previously seen Exhibit 50. (Compare Tr. at 87:12-21 with 5 87:22-88:18 (including Nelson Depo. at 167:23-168:18).) At trial, Ms. Nelson was not able to 6 recall the specific language used in Exhibit 48 without referring to the Exhibit. In light of these 7 inconsistencies, and in light of the fact that she was deposed closer in time to her visit to SeaWorld 8 San Diego, the Court finds her deposition testimony and her inability to recall where she allegedly 9 saw the statements to be more credible than her trial testimony. 10 14. Ms. Nelson has been consistent in her testimony that she saw statements conveying 11 the general message that SeaWorld’s orcas have similar lifespans to orcas that live in the wild and 12 that SeaWorld did not separate mothers and calves. However, Ms. Nelson’s testimony at trial 13 regarding the specific language she claims to have seen varies from the statements contained in the 14 TAC. 15 15. When she was deposed in 2017, Ms. Nelson testified that she recalled statements 16 that orcas “lived the same amount, at least in captivity that they did in the wild” and testified that 17 she did not know and could not recall with specificity what SeaWorld said about mother-calf 18 separation. (Id. at 67:2-8, 71:11-24, 72:20-73:13 (including Nelson Depo. at 155:7-156:3, 134:8- 19 21, and 156:11-22).) Ms. Nelson explained that lack of specificity by stating that she did not want 20 to speculate about the statements. (Tr. at 33:1-5, 33:22-13, 72:2-8.) During discovery, Ms. 21 Nelson also stated she could not “quote verbatim SeaWorld’s statements” regarding orca life spans 22 or mother calf separation. (Tr. at 92:19-95:13 (testifying about responses to interrogatories).) 23 16. During discovery, SeaWorld requested documents “that reflect the statements 24 purportedly made by Defendant ‘disputing the allegations of mistreatment of the orcas raised in 25 Blackfish’ which [Ms. Nelson] allegedly relied upon in purchasing [her] ticket to SeaWorld San 26 Diego[.]” (Tr. 76:15-77:23, 441:15-446:17; Ex. 61 (Nelson Response to Request for Production 27 (“RFP”) 14).) In response, Ms. Nelson stated her counsel collected the documents produced on 1 labeled Nelson_000004-66, and included Exhibits 48 and 50. (See SFOF 18, Tr. at 80:17-82:5, 2 Ex. 609 (identifying range of documents produced in response to RFP 14), Ex. 611 at 2.)7 The 3 Open Letter and the “thriving” advertisement (Exhibits 50 and 48) would have been available to 4 Ms. Nelson prior to her deposition and before she responded to SeaWorld’s interrogatories. For 5 that reason, the Court finds Ms. Nelson’s trial testimony about seeing the specific language used in 6 Exhibits 48 and 50 less credible than her deposition testimony and her responses to interrogatories. 7 17. Ms. Nelson’s claims are based the statements that captive orcas have similar 8 lifespans to wild orcas and that SeaWorld does not separate calves and mothers. The Court will 9 credit Ms. Nelson’s testimony that she saw statements that, in general, conveyed those messages. 10 The Court also credits Ms. Nelson’s testimony that she saw those general statements before her 11 trip to SeaWorld in 2015. For the reasons set forth in FOF 18 through 21, the Court finds Ms. 12 Nelson did not meet burden to show she saw those statements on SeaWorld’s website prior to her 13 visit to SeaWorld San Diego. 14 18. As set forth in FOF 16, Ms. Nelson’s counsel produced Exhibits 48 and 50. Those 15 exhibits bear copyright dates of 2014, and they do not contain a URL marking that would show 16 they came from SeaWorld’s website. (Exs. 48, 50; SFOF 3 (“Documents bearing Bates numbers 17 with the prefix “SW-” were produced to Plaintiffs’ counsel during discovery by SeaWorld.”).) 18 Relying on Exhibit 611, Ms. Nelson urges the Court to find that her counsel downloaded the 19 exhibits from SeaWorld’s website. However, counsel did not state the exhibits were downloaded 20 from SeaWorld’s website. The Court finds Exhibit 611 does not provide probative evidence that 21 Exhibits 48 and 50 were on SeaWorld’s website in 2015. 22 19. SeaWorld could not verify from its own records whether Exhibit 48 was posted on 23 any of SeaWorld’s websites in 2015. (Tr. 29:24-30:2.) Ms. Kermes testified that Exhibit 48 24 “looks like it’s a printout of one of the pages on our SeaWorldCares website[,]” based on her 25 recollection of what that website looked like. She did not provide any specific information about 26 when it may have appeared on the website, other than it would have been after December 2013, 27 1 noting the copyright date of 2014. (Kermes Depo. at 57:2-8, 57:23-58:7, 60:11-17.) After Ms. 2 Kermes testified and at the close of Plaintiffs’ case, the Court admitted Exhibit 48 and stated that 3 “[i]f SeaWorld wants to, in their case-in-chief, debunk” the assertion that Exhibit 48 was on 4 SeaWorld’s website in 2015 “with a witness, that information would be in their possession to 5 testify to that categorically, then I’ll give it the weight it deserves.” (Tr. at 344:15-347:4.) 6 Although SeaWorld did not present any such witness, Ms. Nelson bears the burden to show she 7 has standing to pursue her claims, and the Court concludes the weight of the evidence does not 8 support a finding that Ms. Nelson saw Exhibit 48 on SeaWorld’s website in 2015. 9 20. The Court also conditionally admitted Exhibit 50,“for purposes of showing what” 10 Ms. Nelson “says she remembers seeing on the website”, not as something promulgated by 11 SeaWorld. (Tr. at 36:17-38:3.) Ms. Kermes testified that SeaWorld’s response to Blackfish 12 included Exhibit 68, which was produced by SeaWorld. (SFOF 3.) The content of Exhibits 50 13 and 68 are identical, except that Exhibit 68 includes a reference to “seaworldcares.com” at the 14 conclusion of the Open Letter. (Exs. 58, 60.) Ms. Kermes testified that SeaWorld published the 15 Open Letter in newspapers in December 2013, and she testified that Exhibit 68 was posted to 16 SeaWorld’s website “SeaWorldCares.com”. However, Ms. Kermes did not specify when that 17 occurred. (SFOF 15-17; Kermes Depo. at 36:20-37:1, 37:2, 38:6-13.) 18 21. The Court finds Ms. Nelson failed to meet her burden to establish that Exhibits 48 19 and 50 were on SeaWorld’s website before she visited SeaWorld San Diego and, thus, she failed 20 to meet her burden to show she actually saw the statements on which she claims to have relied on 21 SeaWorld’s website before her trip to SeaWorld. 22 22. Ms. Nelson testified that, at the time she decided to visit SeaWorld San Diego and 23 spend money on the tickets, she believed the lifespan and separation statements and that they were 24 “important” to her decision to visit SeaWorld because they refuted statements made about 25 SeaWorld in Blackfish. (Tr. at 34:25-35:2, 40:11-13, 40:23-42:4, 96:23-97:7, 172:7-17.) During 26 her deposition, however, she testified that she did not know whether SeaWorld was “credible or 27 not credible” on the issue of separation or lifespans, and “that’s why I went.” (Tr. at 99:24-100:19 1 direct testimony at trial that she viewed the Open Letter (Ex. 50) as “an invitation by SeaWorld to 2 visit their parks to see what the truth is versus in the movie” and that she “wanted to visit the park 3 to see for myself what was truth.” (Tr. at 42:10-22; see also id. at 123:14-21 (including Nelson 4 Depo. at 144:14-17).) 5 23. Ms. Nelson testified during her deposition that, after her visit, she thought 6 SeaWorld misrepresented the information on lifespans and that she did not believe the lifespan or 7 separation statements, in part, because the information came from SeaWorld rather than outside 8 sources. She also testified consistently that, after her visit to SeaWorld, she did not know whether 9 either statement was true or false. (Tr. at 112:16-113:7, 114:15-115:18, 116:13-20, 117:10-23, 10 117:25-123:6 (including Nelson Depo., citations to deposition omitted for brevity).) 11 24. Ms. Nelson visited SeaWorld San Diego again in 2018, to “see if anything had 12 changed.” Although Ms. Nelson discovered there were no more orca shows, she thought nothing 13 else was different. (Tr. at 52:12-23.) Ms. Nelson testified that if she was able to trust SeaWorld’s 14 advertising, she “absolutely” would like to go back to SeaWorld because she has learned they are 15 not breeding orcas in captivity and it might be her last time to see orcas up close. (Tr. at 51:25- 16 52:6.) However, Ms. Nelson also testified that she does not support businesses that make animals 17 do tricks, including rodeos and horse racing. The Court credits that testimony, which is consistent 18 with her deposition testimony that she has stopped patronizing zoos and acknowledged it would be 19 fair to say she is “against the exhibition of animals for money.” (Tr. 131:7-21, 132:1-133:17 20 (including Nelson Depo. at 78:22-79:13 and 77:9-11).) She also testified in her deposition that, 21 contrary to what is alleged in paragraph 19 of the TAC and contrary to some of her trial testimony, 22 she does not “enjoy the kind of animal entertainment and education SeaWorld provides.” (Id. at 23 133:23-136:7 (reading from Nelson Depo. at 242:17-243:2).) There also is evidence that Ms. 24 Nelson has been a member of People for the Ethical Treatment of Animals. (Tr. at 136:9-137:10.) 25 25. The Court does not credit Ms. Nelson’s trial testimony that she absolutely would 26 purchase a ticket to SeaWorld in the future. That testimony is belied by the consistency of her 27 negative views about SeaWorld, as set forth in her social media posts, and also is belied by her 1 143:19 (reading from Nelson Depo. at 240:24-241:15).) Ms. Nelson’s social media posts also are 2 consistent with her testimony that she does not like businesses that display or exhibit animals, 3 testimony the Court does find credible and finds to be reflective of Ms. Nelson’s true views. 4 FACTUAL FINDINGS REGARDING MS. MORIZUR 5 26. On or about April 10, 2012, when she was fifteen, Ms. Morizur visited SeaWorld 6 San Diego, with her mother, her father, her sister, and her grandparents. (SFOF 10-12; Tr. 7 200:17-201:5, 363:3-16.) During her visit, Ms. Morizur attended the One Ocean show featuring 8 SeaWorld’s orcas. (Tr. at 202:6-11, Ex. 13 at 4.) According to Ms. Morizur, she and her family 9 attended that show around noon, and it lasted an hour. (Tr. at 203:19-204:2, 206:7-12.) 10 27. Ms. Morizur testified that after the One Ocean show she went back to Shamu 11 Stadium because she wanted to speak with a trainer about what it was like to work with the orcas. 12 At the time of her visit, Ms. Morizur hoped to work with orcas “and possibly even be a trainer” 13 when she grew up. (Tr. at 206:15-18, 206:21-207:6.) According to Ms. Morizur, approximately 14 one hour after the One Ocean show ended, she was able to speak to a female trainer in an 15 underground viewing area at the orca pools. (Id. at 207:9-24, 246:12-19, 250:15-251:20 16 (including Morizur Depo. at 102:25-103:8), 251:24-252:20 (including Morizur Depo. at 107:15- 17 21), Ex. 13 (at 16, 30).) 18 28. Ms. Morizur testified she asked the trainer why the dorsal fins on SeaWorld’s orcas 19 were not straight, which was different from what she saw of photos of orcas in the wild. (Tr. 20 208:9-20.) According to Ms. Morizur, the trainer responded by telling her, “[O]h, it’s equally as 21 common in the wild. Usually what happens is the reason the dorsal fin isn’t straight because it’s 22 too heavy and the orca just can’t support it so it starts bending over because it’s a muscle[.]” (Id. 23 at 208:20-23.) At her deposition, Ms. Morizur testified the trainer told her the “dorsal fins weigh 24 too much and that it often happens in the wild too” and told her bent dorsal fins were “normal and 25 equally common in the wild.” (Id. at 254:19-255:17 (including Morizur Depo. at 78:21-79:19), 26 256:10-257:8 (including Morizur Depo. at 88:24-89:12).) 27 29. At trial, Ms. Morizur also testified that she asked the trainer whether the “orcas 1 trainer responded, “Yes, the orcas here that we have at SeaWorld they’re very – they’re happy, 2 they’re healthy, and, you know, compared to the ones in the wild, captivity does not harm them in 3 general.” (Id. at 209:8-11.) At her deposition, Ms. Nelson testified the trainer “mentioned along 4 the lines that the orcas are healthy and happy and well taken care of at SeaWorld” and testified she 5 was told that “captivity in general does not harm orcas.” (Id. at 255:21-22 (including Morizur 6 Depo. at 78:21-79:19), 257:9-16 (including Morizur Depo. at 88:12-89:24), 260:17-261:8 7 (including Morizur Depo. at 89:21-90:8).) 8 30. Ms. Morizur’s trial testimony about the statements she allegedly relied on was 9 more expansive than the statements in the TAC and varied from her deposition testimony. 10 However, she consistently testified about the general content of those statements. Ultimately, the 11 Court finds any variations in the actual statements are immaterial because it concludes Ms. 12 Morizur has not met her burden to show she purchased a Shamu plush during her visit. 13 31. Ms. Morizur testified although she spoke to other employees that day, this was the 14 only conversation she had with a trainer and testified that no one else participated in that 15 conversation. (Id. at 209:12-17.) Mrs. Morizur testified that she saw Ms. Morizur speaking to a 16 male SeaWorld employee following the One Ocean show. (Id. at 363:17-364:1.) During her 17 deposition, Mrs. Morizur testified that Ms. Morizur had told her “the SeaWorld guy” lied to her 18 about dorsal fins. (Id. at 364:21-365:10 (reading from Mrs. Morizur Depo. at 19:16-20:2).) Mr. 19 Morizur also testified that he saw Ms. Morizur talking with a SeaWorld employee right after the 20 show, but he did not know if the person was a trainer. (Id. at 375:23-374:4.) He also testified that 21 at some later point, Ms. Morizur told him that person had lied to her about dorsal fins. (Id. at 22 376:11-21.) Again, the Court finds any inconsistencies about the individual with whom Ms. 23 Morizur allegedly spoke are immaterial because it finds Ms. Morizur did not meet her burden to 24 show she purchased a Shamu plush during her visit. 25 32. SeaWorld sells souvenirs inside SeaWorld San Diego, including the Shamu plush 26 at issue in this case. (SFOF 6.) Ms. Morizur testified that, after the conversation with the trainer, 27 she purchased the Shamu plush from a boutique stand or a gift shop near Shamu Stadium for 1 the Shamu plush, in part, because the trainer’s statements “reassured me in a sense” and made her 2 feel “good at that time” about turning money over to SeaWorld. (Tr. at 210:7-22.) Ms. Morizur’s 3 trial testimony about when she purchased the Shamu plush is contradicted by her deposition 4 testimony, where she testified she “went and bought [the Shamu plush] straight after what the 5 trainer told me[.]” (Tr. at 264:2-17 (including Morizur Depo. at 121:22-122:2).) 6 33. Mr. Morizur testified that he accompanied Ms. Morizur to a gift shop, but he did 7 not recall that Ms. Morizur purchased anything there. Mr. Morizur also did not recall Ms. Morizur 8 going off by herself during the trip. He also did not recall her leaving SeaWorld San Diego with a 9 stuffed animal, although he testified it was “possible” that she did. (Tr. at 377:10-378:17 10 (including Mr. Morizur Depo. at 24:17-21), 379:17-19.) Mrs. Morizur also testified that she 11 accompanied her daughter into a SeaWorld gift shop, but she did not remember if Ms. Morizur 12 purchased anything. Mrs. Morizur did not remember any of her family members having any 13 SeaWorld merchandise in the car on the way home. (Id. at 365:15-21, 366:13-24, 373:4-6.) 14 34. Mr. Robbins has known Ms. Morizur since 2013, and he has seen Ms. Morizur 15 almost every day since then. He testified that had no knowledge that Ms. Morizur claimed to have 16 owned a Shamu plush before he read about it in Ms. Morizur’s deposition. (Tr. at 383:25-384:5; 17 385:1-16.) Mr. Robbins also testified that he never saw a Shamu plush with a SeaWorld tag on it. 18 (Id. at 385:17-19.) The Court credits this testimony. 19 35. Ms. Morizur did not produce a receipt for her purchase. Ms. Morizur took, or 20 posed for, numerous photographs during her visit and posted ninety-four (94) photographs to her 21 Facebook page. One of those photographs shows her posing in a gift shop with a shark plush, 22 which she did not purchase. There are no photographs of the Shamu plush. (Tr. at 201:6-202:1, 23 204:1-205:11, 65:22-266:14, 267:21-24; see, e.g., Ex. 17 (at 33, 47-49, 51, 54, 61, 62, 65, 66, 94).) 24 Ms. Morizur also testified that she carried the Shamu plush in a backpack. (Tr. at 267:13-15.) 25 None of the photographs introduced into evidence show Ms. Morizur with a backpack, but they do 26 show her with a small cross-body purse. (See Ex. 17 (at 33, 61, 65).) 27 36. Ms. Morizur suggested that there were no photographs because she was not active 1 her Facebook page after the trip. Ms. Morizur also testified she became more active on Twitter in 2 2012 and 2013, shortly after her trip. (Tr. 338:2-9.) The Court does not find Ms. Morizur’s 3 explanation for the lack of photographic evidence credible. 4 37. Ms. Morizur’s family owns a dog named Brutus. (SFOF 13.) Ms. Morizur claims 5 she cannot produce the Shamu plush because Brutus destroyed it. Neither of her parents nor Mr. 6 Robbins recalled Brutus destroying a Shamu plush, although Mr. Morizur testified that Brutus had 7 a “habit of chewing on anything that is stuffed.” (Compare Tr. at 215:11-24, 216:7-9, with 8 366:25-4, 379:20-24, 382:6, 385:24-386:10.) The only additional evidence that Brutus destroyed 9 the Shamu plush is one of Ms. Morizur’s tweets from February 5, 2016 at 1:36 p.m. That tweet 10 was posted after a call Ms. Morizur scheduled with counsel for that morning, which also was the 11 day Ms. Morizur decided to become a plaintiff. (Tr. 284:20-286:24, 291:12-21, Exs. 18, 254, 12 502.) The tweet reads, “My dog chewed up the stuffed orca I bought at @SeaWorld years ago[.] I 13 guess the money didn’t go to waste after all.” (Ex. 502.) 14 38. Ms. Morizur’s testimony about when the plush was destroyed was inconsistent. At 15 trial, she testified the Shamu plush was destroyed in “very late of 2015, very early of 2016” and 16 that “it was still in January, from what I recall.” (Tr. at 215:25-216:6.) Ms. Morizur then admitted 17 on cross-examination that the plush was destroyed on the morning of February 5, 2016 or the prior 18 evening. That testimony was consistent with her deposition testimony on this issue. (Id. at 19 279:21-280:12 (including Morizur Depo. at 126:3-12), 292:8-10.) 20 39. Ms. Morizur testified that she posted the February 5, 2016 tweet about the 21 destruction of her Shamu plush because “talking with Covington or my lawyers at that time 22 reminded me of” it. (Id. at 292:3-7.) Ms. Morizur testified about her love of orcas and all things 23 orca, and that is one aspect of her testimony that the Court does credit. Given Ms. Morizur’s love 24 of orcas and orca merchandise, and assuming arguendo the Shamu plush had been destroyed 25 shortly before the call, the Court cannot credit that Ms. Morizur’s memory of the incident would 26 have not been fresh enough that it would need to be refreshed by a telephone call about this 27 lawsuit. Ms. Morizur’s lack of candor at trial, including admitted exaggerations and 1 fact that the Shamu plush was destroyed lead the Court to discredit Ms. Morizur’s variation of “the 2 dog ate my homework excuse” as an explanation for why she did not produce the Shamu plush. 3 40. Having weighed the testimony and considered the evidence, the Court does not find 4 credible Ms. Morizur’s testimony that she purchased a Shamu plush during her April 2012 visit to 5 SeaWorld San Diego. For that reason, the Court finds she has not met her burden to show she 6 spent money on a Shamu plush. 7 41. Ms. Morizur testified that she would still like to purchase SeaWorld merchandise 8 and would go back to SeaWorld, but right now she does “not know if [she] can trust them as a 9 brand or organization.” (Tr. at 216:10-22.) Ms. Morizur also explained that “if I could trust them, 10 I would have no issue giving my money to an organization that is truthful to the public about its 11 practices and takes care of its … animals” and that she would trust SeaWorld “[i]f they told [her] 12 the truth about their practices or let’s – per se [sic] their old practices.” (Id. at 216:23-217:2, 13 218:6-8.) That testimony contradicts Ms. Nelson’s allegations in the TAC that she would not have 14 purchased the Shamu plush if she had known the truth about the alleged misrepresentations. 15 (TAC ¶ 20.) 16 42. Ms. Morizur also testified that she loves SeaWorld’s work on conservation and 17 rescue programs. (Tr. at 217:3-13.) Ms. Morizur took a behind the scenes tour of SeaWorld on 18 the trip in 2012, which addressed some of those issues. However, she admitted that after the trip 19 she posted many statements that are extremely critical of SeaWorld, including posts made during 20 this litigation. 21 43. Indeed, Ms. Morizur consistently posted negative statements about SeaWorld on 22 social media. (See, e.g., Exs. 154-156, 238, 601-A (at 3-4, 11, 16, 17), 616, 623-624.) According 23 to Ms. Morizur, many of her social media posts reflect her anger, and she testified she made the 24 posts in “the heat of the moment.” She also tried to explain away her posts as “exaggerations.” 25 (See, e.g., Tr. at 274:9-14.) In her deposition, Ms. Morizur admitted to embellishing a homework 26 assignment to “make [herself] look a little better in front of the teacher[.]” (Tr. at 322:3-235:9 27 (including Morizur Depo. at 177:19-24).) The Court credits Ms. Morizur’s testimony that she will 1 that testimony as true supports the Court’s conclusion about her overall credibility. 2 44. In one of the photos Ms. Morizur posted to Facebook, she stated, “I was literally 3 crying right here.” (Tr. at 269:22-270:8, Ex. 17 at 95.) Ms. Morizur testified the tears “were 4 happy tears,” but at her deposition she stated that “seeing [the orcas] in captivity made [her] sad 5 like right now.” (Tr. at 270:14-271:6 (including Morizur Depo. at 109:8-23).) The Court credits 6 Ms. Morizur’s deposition testimony, which is consistent with what the Court finds to be her views 7 about orcas in captivity. 8 45. Mr. Morizur testified that his understanding of Ms. Morizur’s goal in bringing this 9 case was “that killer whales will no longer be held in captivity anywhere by” anyone. (Tr. at 10 381:7-14.) Mr. Robbins similarly testified that Ms. Morizur told him she would never go back to 11 SeaWorld as long as the orcas are in captivity. (Id. at 391:12-15, 392:1-4.) The Court finds Mr. 12 Morizur’s and Mr. Robbins’s testimony on Ms. Morizur’s current views of SeaWorld and her 13 intent to return more credible than Ms. Morizur’s testimony. 14 46. The Court does not doubt that Ms. Morizur has a genuine love of orcas and that 15 Ms. Morizur is passionate about orca welfare. However, it finds Ms. Morizur’s statements 16 criticizing SeaWorld are a more accurate reflection of her views, and it finds her change of heart at 17 trial about SeaWorld to be litigation motivated. The Court also does not find credible Ms. 18 Morizur’s trial testimony that she would return to SeaWorld if the Court ordered it to say what she 19 believes to be the truth, i.e. that captivity does harm orcas and that bent dorsal fins are not normal. 20 Ms. Morizur has made numerous public statements that she would not return to SeaWorld, has 21 urged friends and family to do the same, and has stated that she wants to end captivity. Ms. 22 Morizur made at least some of those statements after she testified in deposition that SeaWorld 23 might win her back as a customer. (See, e.g., Exs. 20 (at 9, 12), 154-156, 238, 254-1, 601A (at 1, 24 4, 11), 616, 620, 624, 636.) The Court credits her deposition testimony in which she stated 25 unequivocally that she would not buy a ticket and go back to SeaWorld if the Court ordered 26 SeaWorld to make such statements. (Tr. at 328:19-329:18 (reading from Morizur Depo. at 175:7- 27 176:5).) 1 CONCLUSIONS OF LAW 2 A. Ms. Nelson and Ms. Morizur Have Not Met Their Burden to Show They Have Standing to Seek Injunctive Relief. 8 3 4 1. Questions of Article III standing go to a federal court’s subject-matter jurisdiction. 5 In order to demonstrate Article III standing, Plaintiffs must show they: “(1) suffered an injury in 6 fact, (2) that is fairly traceable to the challenged conduct of the defendant, (3) that is likely to be 7 redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, -- U.S. --, 136 S.Ct. 1540, 8 1547 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). In addition to 9 restitution, Plaintiffs seek injunctive relief, and they must establish Article III standing for both 10 forms of relief. Friends of the Earth v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 185 11 (2000)); see also Bates v. United Parcel Serv., 511 F.3d 974, 985 (9th Cir. 2007). 12 2. Plaintiffs must support each element of the standing inquiry “in the same way as 13 any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree 14 of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. 15 Accordingly, Plaintiffs must prove they have standing by a preponderance of the evidence. Id.; 16 see also Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826, 866 (2001) (stating that plaintiff bears 17 burden of proving UCL claim by a preponderance of the evidence). 18 3. “Past exposure to harmful or illegal conduct does not necessarily confer standing to 19 seek injunctive relief if the plaintiff does not continue to suffer adverse effects.” Mayfield v. 20 United States, 599 F.3d 964, 970 (9th Cir. 2010). Therefore, Plaintiffs must prove that they have 21 “suffered or [are] threatened with a ‘concrete and particularized’ legal harm, … coupled with a 22 ‘sufficient likelihood that [they] will again be wronged in a similar way.’” Bates, 511 F.3d at 985 23 (quoting Lujan, 504 U.S. at 560 and then City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). 24 The latter inquiry turns on whether Plaintiffs face a “real and immediate threat of repeated injury.” 25 Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974). The threat of future injury cannot be 26 “conjectural or hypothetical” but must be “certainly impending” to constitute an injury in fact for 27 1 injunctive relief purposes. Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) 2 (internal quotations and citations omitted). 3 4. A consumer may have standing to sue for injunctive relief based on allegedly false 4 advertising even if they “now know[] or suspect[] that the advertising was false at the time of the 5 original purchase[.]” Davidson, 889 F.3d at 969. For example, a plaintiff may be able to prove 6 they would want to purchase the product, but they are unable to rely on a defendant’s advertising 7 or labels and so will refrain from purchasing a product they want. Id. at 970. Alternatively, a 8 plaintiff might prove that they “might purchase the product in the future, despite the fact it was 9 once marred by false advertising or labeling, as [they] may reasonably, but incorrectly, assume the 10 product was improved.” Id. In either instance, in order to establish standing under Davidson, a 11 plaintiff must prove they want to or intend to purchase the product in the future. See also Lanovaz 12 v. Twinings N. Am., Inc., 726 Fed. Appx. 590, 591 (9th Cir. 2018) (“A some day intention - 13 without any description of concrete plans, or indeed even any specification of when the some day 14 will be - does not support a finding of the actual or imminent injury that Article III requires.”) 15 (internal quotations, citations and alterations omitted). 16 5. As set forth in FOF 43 through 46, the Court concludes that Ms. Morizur is 17 refraining from doing business with SeaWorld for reasons other than her alleged inability to trust 18 it as a brand; it is because she is opposed to holding orcas in captivity. Therefore, the Court 19 concludes Ms. Morizur has not satisfied the “refraining from” scenario outlined in Davidson. 20 6. Neither Ms. Nelson nor Ms. Morizur provided any testimony that suggests they 21 regularly were confronted with SeaWorld’s allegedly false statements, which also differentiates 22 them from the plaintiff in Davidson, who alleged she “regularly visit[ed] stores that” sold the 23 defendant’s wipes and, thus, was regularly confronted with the alleged false advertising and could 24 not determine if the wipes were truly flushable from the packaging. 889 F.3d at 962. 25 7. In Lanovaz, the plaintiff testified that she would not purchase the defendant’s 26 products again, even if it removed the allegedly misleading labels. 726 Fed. Appx. at 590-91. 27 The court concluded an interrogatory response, in which the plaintiff stated she “would consider” 1 “someday intention” unsupported by “concrete plans” was insufficient to establish an imminent 2 injury. Id. at 591. Having found that neither Ms. Nelson’s nor Ms. Morizur’s trial testimony that 3 they do, in fact, intend to return to or purchase merchandise from SeaWorld is credible, the Court 4 concludes they have not met their burden to prove they are faced with a real and immediate threat 5 of an ongoing or repeated injury. Accordingly, Ms. Nelson and Ms. Morizur have failed to meet 6 their burden to show they have Article III standing to seek injunctive relief on their claims. See, 7 e.g., Allen v. Iranon, 283 F.3d 1070, 1078 n.8 (9th Cir. 2002) (citing Anderson v. City of 8 Bessemer, 470 U.S. 564, 574 (1985)) (noting trial court’s findings on credibility are entitled to 9 deference).9 10 8. SeaWorld is entitled to judgment in its favor on the claims for injunctive relief. 11 B. Ms. Morizur Has Not Met Her Burden to Show Economic Injury. 12 9. In order to demonstrate statutory standing to pursue claims under the UCL, Ms. 13 Morizur must show she “suffered injury in fact and … lost money or property” as result of 14 SeaWorld’s conduct. Kwikset Corp. v. Sup. Ct., 51 Cal. 4th 310, 320-21 (2011) (citing Cal. Bus. 15 Prof. Code § 17204, 17535). There are many ways to prove economic injury. For example, “[a] 16 plaintiff may … surrender in a transaction more, or acquire in a transaction less, than he or she 17 otherwise would have[.]” Id. at 323. Ms. Morizur did not present any testimony that would have 18 supported this theory of economic injury. At trial, her testimony only supported a theory that she 19 would not have purchased the Shamu plush if she had known what the trainer allegedly told her 20 was not true. Lost money is “a classic form of injury in fact.” Id. 21 10. Based on the facts found by the Court above in FOF 32 through 40, the Court 22 concludes that Ms. Morizur failed to meet her burden to prove that she purchased the Shamu plush 23 upon which she bases her UCL claim. 24 11. The Court also takes into consideration her inconsistent testimony about when the 25 alleged Shamu plush was destroyed as discussed in FOF 38 and 39. “[A] trial court also has the 26 9 The Court recognizes that it found Ms. Nelson’s and Ms. Morizur’s deposition testimony, 27 which was not definitive about their intent to return to SeaWorld, was sufficient to survive 1 broad discretionary power to permit a jury to draw an adverse inference from the destruction or 2 spoliation against the party or witness responsible for that behavior.” Glover v. BIC Corp., 6 F.3d 3 1318, 1329 (9th Cir. 1993). A finding of bad faith is not a prerequisite and “simple notice of 4 potential relevance to the litigation” will suffice. Id. (internal quotations and citations omitted). 5 Ms. Morizur’s claims were based only on her purchase of the Shamu plush. If a Shamu plush had 6 been destroyed the night before Ms. Morizur decided to become a plaintiff, rather than late 2015 7 or early 2016, the Court draws the reasonable inference that Ms. Morizur would have saved or 8 documented the remnants. At that point this case had been filed, and adding her as a plaintiff was 9 anticipated. The Court draws the reasonable inference that the Shamu plush and its “potential 10 relevance to the litigation” would have been evident to Ms. Morizur and to her counsel, and Ms. 11 Morizur would have had a duty to preserve relevant evidence. 12 12. Plaintiffs are correct that they need not produce documentary evidence to prove up 13 economic injury. See Rahman v. Mott’s LLP, No. 13-cv-3482 SI, 2014 WL 5282106, at *4 (N.D. 14 Cal. Oct. 15, 2014) (“Testimony from the plaintiff as to how much he spent on the product is 15 competent evidence of damages; he need not furnish sales receipts or other extrinsic evidence.”); 16 cf. Ries v. Arizona Beverages USA, LLC, 287 F.R.D. 523, 530 (N.D. Cal. 2012) (denying summary 17 judgment where plaintiffs did not produce receipts but provided sworn testimony about economic 18 harm suffered). However, both Rahman and Ries addressed economic injury at the summary 19 judgment phase. Ms. Morizur must now prove her claim by a preponderance of the evidence, and 20 she relies solely on her testimony. The Court has not credited that testimony; therefore, it 21 concludes Ms. Morizur has failed to carry her burden of proving that she sustained an economic 22 injury for purposes of statutory standing under the UCL. 23 13. SeaWorld is entitled to judgment in its favor on Ms. Morizur’s UCL claim. 24 C. Ms. Nelson Has Not Met Her Burden to Show She Has Statutory Standing to Pursue Her Claims. 25 26 14. Ms. Nelson must show she suffered an economic injury to pursue her UCL and 27 FAL claims. Ms. Nelson did not testify that she would have paid less for admission to SeaWorld 1 Kwikset, 51 Cal. 4th at 323. Ms. Nelson may demonstrate economic injury showing she was 2 deprived “of money or property to which [she] has a cognizable claim.” Kwikset, 51 Cal. 4th at 3 323. In order to demonstrate standing under the CLRA, she must show damage as a result of 4 SeaWorld’s conduct. Cal. Civ. Code § 1780(a). The CLRA’s “‘any damage’ standard includes 5 even minor pecuniary damage[.]” Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1108 (9th Cir. 2013), 6 as amended on denial of reh’g and reh’g en banc (July 8, 2013). If Ms. Nelson is able to show 7 she “lost money or property” under the UCL, she “will, a fortiori, have suffered ‘any damage’ for 8 purposes of establishing CLRA standing.” Id. (citations omitted). 9 15. Based on FOF 8 and 9, Ms. Nelson established that at least two presumptions apply 10 to show the funds used to purchase her ticket were community property, in which she would have 11 an interest. First, at the time of their 2015 visit to SeaWorld, Ms. Nelson and her husband had 12 maintained joint finances since approximately 1995. This supports the inference that the money 13 spent on the admission tickets in 2015 was acquired during the marriage, and was therefore 14 community property. See Cal. Fam. Code § 760 (“Except as otherwise provided by statute, all 15 property, real or personal, wherever situated, acquired by a married person during the marriage 16 while domiciled in this state is community property.”) Second, a presumption applies because the 17 tickets were a family expense. See, e.g., In re Marriage of Mix, 14 Cal. 3d 604, 612 (1975). 18 SeaWorld did not present any evidence that would overcome those presumptions. See Wilson v. 19 Wilson, 76 Cal. App. 2d 119, 126 (1946) (burden is on party claiming property is separate 20 property “to establish that fact”). 21 16. SeaWorld argues that even if the funds used were community property, Ms. Nelson 22 still did not meet her burden to show economic injury because, if Mr. Nelson paid with a credit 23 card, there is no proof the bill was paid. In Price v. Synapse Group, Inc., which involved a 24 challenge to automatic renewals charged to the plaintiffs’ credit cards for magazine subscriptions, 25 the defendants argued the plaintiffs could not show standing absent an allegation they paid the 26 charges. No. 16-cv-01524-BAS-BLM, 2017 WL 3131700 at *1-*2 (S.D. Cal. July 24, 2017). The 27 court rejected that argument, reasoning that “[e]conomic injury under the FAL and UCL may be 1 ubiquitous feature, deprivation of a consumer’s credit line is surely among the most common. Id., 2 2017 WL 3131700 at *4 (quoting Kwikset, 51 Cal. 4th at 323). 3 17. Although the Court has found other aspects of Ms. Nelson’s testimony less than 4 credible, it does credit her testimony and her husband’s testimony that tickets were purchased at 5 the SeaWorld ticket counter. For that reason, and for the reasons set forth in COL 15 and 16, the 6 Court concludes that Ms. Nelson has met her burden, albeit barely, to show she was “deprived of 7 money or property to which … she has a cognizable claim,” i.e. the cost of the ticket to SeaWorld, 8 and thus that she suffered an economic injury under the UCL and the FAL and damage under the 9 CLRA. Kwikset Corp., 51 Cal. 4th at 323. This does not end the inquiry because Ms. Nelson also 10 must prove that the damage or economic injury she suffered was “as a result” of SeaWorld’s 11 conduct. 12 18. The term “as a result of” requires a causal connection between SeaWorld’s conduct 13 and Ms. Nelson’s injury. Kwikset, 51 Cal. 4th at 322, 326. Where, as here, the alleged conduct is 14 false advertising, Ms. Nelson “must demonstrate actual reliance on the allegedly deceptive or 15 misleading statements, in accordance with well-settled principles regarding the element of reliance 16 in ordinary fraud actions.” Id. at 326-27 (quoting In re Tobacco II Cases, 46 Cal. 4th 298, 306 17 (2009)). In order to show actual reliance, Ms. Nelson must demonstrate that the misrepresentation 18 or omission was an “immediate cause of the injury-causing conduct[.]” In re Tobacco II, 46 Cal. 19 4th at 328; see also Kwikset, 51 Cal. 4th at 327 n.10 (plaintiff can show reliance by demonstrating 20 he or she was “motivated to act or refrain from action based on the truth or falsity of a defendant’s 21 statement”); accord Daniel v. Ford Motor Co., 806 F.3d 1217, 1225 (9th Cir. 2015). Ms. Nelson 22 need not prove the misrepresentation or omission was the “only,” “sole,” “predominant,” or 23 “decisive” cause of the injury-causing conduct. In re Tobacco II, 46 Cal. 4th at 328. Rather, she 24 may show that the misrepresentation or omission was a substantial factor in her decision-making 25 process. Id.; accord Daniel, 806 F.3d at 1225. 26 19. Ms. Nelson argues that because the statements at issue are material, she can rely on 27 a presumption or inference of reliance. See In re Tobacco II, 46 Cal. 4th at 327 (quoting Engalla 1 one would have behaved differently can be presumed, or at least inferred, when the omission is 2 material.”); Mullins v. Premier Nutrition Corp., No. 13-cv-01271-RS, 2016 WL 3440600, at *3 3 (N.D. Cal. June 20, 2016) (“A plaintiff satisfies the burden of proving reliance by showing the 4 alleged ‘misrepresentation was an immediate cause of the injury producing conduct’ … or that the 5 representation was material. When a misrepresentation is material, a presumption of reliance 6 arises.”) (quoting and citing In re Tobacco II, 46 Cal. 4th at 326-27). A representation may be 7 material if “the maker of the representation knows or has reason to know that its recipient regards 8 or is likely to regard the matter as important in determining [her] choice of action[.]” Kwikset, 51 9 Cal. 4th at 332 (internal quotations and citations omitted). 10 20. The presumption or inference of reliance can be rebutted. See Engalla, 15 Cal. 4th 11 at 977 (stating a plaintiff can survive summary judgment by making “a showing that the 12 misrepresentations were material, and that therefore a reasonable trier of fact could infer reliance 13 from such misrepresentations, … absent evidence conclusively rebutting reliance”) (emphasis 14 added); see also Konik v. Cable, No. 07-cv-763 SVW (RZx), 2009 WL 10681970, at *18-*21 15 (C.D. Cal. Dec. 2, 2009) (stating defendant can rebut presumption “by producing evidence that in 16 fact [plaintiffs] did not rely on [defendant’s] statements” and finding defendant did not rebut 17 presumption). For example, a plaintiff cannot rely on the presumption if they were never exposed 18 to the false advertising at issue. See, e.g., Konik, 2009 WL 10681970, at *20 (noting that in cases 19 where reliance is disproved, defendants have, inter alia, demonstrated the plaintiff “did not hear or 20 see the alleged misstatement before making the decision”). A defendant also could overcome the 21 presumption by showing a plaintiff knew the statement was false at the time when the statement 22 was made or “did not in fact consider the statement” at the time the plaintiff decided to make a 23 purchase. Id. (citing cases); cf. Daniel, 806 F.3d at 1225 (when omissions are at issue, plaintiff 24 must be able to allege they would have been aware of a defendant’s disclosure from which 25 information was omitted). 26 21. Contrary to SeaWorld’s argument, the court in Hall v. SeaWorld Entertainment Inc. 27 did not reject the proposition that a plaintiff could establish reliance by showing a representation 1 Instead, the court noted that the plaintiffs “effectively concede[d] that they have not specifically 2 alleged reliance on any particular statement” and argued they were entitled to the presumption set 3 forth in In re Tobacco II to establish reliance. Id. The Hall court reasoned that In re Tobacco II 4 did not stand for the proposition that if a plaintiff was not exposed to the advertising in question, 5 they would be entitled to restitution. Id. The court rejected the plaintiff’s argument that “so long 6 as a complaint alleges misrepresentations, it cannot be dismissed for failure to allege reliance.” 7 Id., 2015 WL 9659911, at *3 n.4. “Applying the Tobacco II presumption in this manner would all 8 but eliminate the actual reliance requirement for fraud-based claims by allowing a complaint to 9 survive even if the plaintiff had never seen the allegedly false advertisements.” Id. (emphasis 10 added). Thus, the Hall court recognized that In re Tobacco II allowed a plaintiff to rely on a 11 presumption to show reliance, but it found the presumption will not apply when a plaintiff does 12 not show they were exposed to the advertising in question. The court held the plaintiffs failed to 13 allege facts to show the type of longstanding advertising campaign at issue in In re Tobacco II. 14 Thus, the plaintiffs were required to establish with specificity the advertisements on which they 15 relied. Id., 2015 WL 9659911, at *4. The Hall plaintiffs did not allege they “actually saw or read 16 any advertising or statements made by SeaWorld prior to purchasing their tickets.” Id., 2015 WL 17 9659911, at *4-5 (emphasis in original). Therefore, the plaintiffs’ allegations in Hall defeated 18 their ability to rely on an inference of or presumption of reliance. 19 22. Based on the facts found by the Court above in FOF Nos. 12, 13 and 18 through 21, 20 the Court concludes that Ms. Nelson failed to prove exposure to a specific SeaWorld 21 representation; that is, Ms. Nelson failed to prove she saw the advertisements at issue on 22 SeaWorld’s website before her trip. Ms. Nelson’s failure to prove the specific statements she 23 claims she was exposed to defeats her claim of statutory standing under the UCL, the FAL, and 24 the CLRA. Doe v. SuccessfulMatch.com, 70 F. Supp. 3d 1066, 1082 (N.D. Cal. 2014) (“[I]f 25 Plaintiffs did not see the specified representations before they purchased Defendant’s services, 26 then Plaintiffs did not rely on these representations and suffered no injury”); In re iPhone 27 Application Litig., 6 F. Supp. 3d 1004, 1019-20 (N.D. Cal. 2013) (vague testimony as to plaintiffs’ 1 allegedly were made insufficient to establish standing). 2 23. In addition to failing to meet her burden to show exposure to the alleged 3 misrepresentations, Ms. Nelson offered no evidence that the lifespan or separation statements have 4 any bearing on why people buy tickets to SeaWorld. Plaintiffs offered the deposition testimony of 5 Fred Jacobs that SeaWorld is proud of its accreditation by the Association of Zoos and Aquariums 6 and for its overall animal care, but that aspect of his testimony was not linked specifically to the 7 lifespan and separation statements. In their proposed findings of fact on this issue, Ms. Nelson 8 focuses on statements that SeaWorld allegedly made about the overall health and well-being of its 9 orcas. Again, however, that information is not tied directly to the lifespan or separation 10 statements, which form the basis of Ms. Nelson’s claims. To the extent Ms. Nelson could rely on 11 a presumption of reliance, the Court concludes she failed to meet her burden for the limited 12 purpose of the standing inquiry that the statements would have been material. 13 24. Moreover, even if the evidence were sufficient to show Ms. Nelson was exposed to 14 SeaWorld’s statements before her trip, and the Court concludes it is not, Ms. Nelson also must 15 show she “repose[d] confidence in the truth of the relevant representation, and act[ed] upon this 16 confidence.” Buckland v. Threshold Enter., Ltd., 155 Cal. App. 4th 798, 808 (2007) (emphasis in 17 original), disapproved on other grounds by Kwikset, 51 Cal. 4th at 337; see also Kwikset, 51 Cal. 18 4th at 327 n.10 (citing Buckland with approval and stating plaintiff must establish that she “was 19 motivated to act or refrain from action based on the truth or falsity of a defendant’s statement, not 20 merely on the fact that it was made”). Ms. Nelson may have been aware of lifespan and separation 21 statements and they may have been important to her. However, she did not present credible or 22 persuasive evidence that she believed either statement. Therefore, she failed to prove that she 23 reposed any confidence in the truth of SeaWorld’s statements and acted upon that confidence 24 when she allegedly made the decision to visit the park. Indeed, the evidence clearly shows that 25 she did not give credence to either statement – before or after she made the 2015 trip to SeaWorld. 26 Where it is clear that the plaintiff did not actually believe the representation at issue, there can be 27 no actual reliance on it. See, e.g., Major v. Ocean Spray Cranberries, Inc., No. 12-cv-03067-EJD, 1 plaintiff must have relied on “no sugar added” message to mean “low calorie” but granting 2 summary judgment because plaintiff’s testimony precluded reliance where it showed “she never 3 believed Defendant’s products were low calorie’); Khasin v. Hershey Co., No. 12-cv-01862-EJD, 4 2014 WL 1779805, at *4 (N.D. Cal. May 5, 2014) (finding plaintiff could not show reliance based 5 || on aspects of label about which he testified he had no concerns). 6 25. Because reliance is an essential element of a plaintiffs statutory standing to sue 7 under the UCL, FAL, and CLRA, and because Ms. Nelson has not met her burden to show 8 || reliance, she has failed to meet her burden to show she has standing to pursue these claims against 9 SeaWorld. 10 26. SeaWorld is entitled to judgment on Ms. Nelson’s claims. 11 CONCLUSION 12 For the foregoing reasons, the Court concludes Plaintiffs have failed to prove they have 13 Article III standing to seek injunctive relief and fail to prove they have statutory standing to pursue 14 || their claims under the UCL and the CLRA. The Court shall enter a separate judgment, and the 15 Clerk shall close this file. 16 IT IS SO ORDERED. jit 5 17 || Dated: October 13, 2020 □ | / Ate JEPFREY $. WHIT 19 Upited fates DisyAct Judge 20 / 21 22 23 24 25 26 27 28