Judge: Elaine Lu, Case: 24STCV16212, Date: 2025-03-18 Tentative Ruling

Case Number: 24STCV16212    Hearing Date: March 18, 2025    Dept: 9

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9

Procedural Background

This is a putative consumer class action.  Plaintiff Sargis Isayan alleges that Defendants Cedar Fair, L.P., Cedar Fair Management, Inc., and Six Flags Entertainment Corporation (collectively “Defendants”) violated California’s Unfair Competition Law and False Advertising Law by misleading Plaintiff and the putative class members by advertising lower base prices and hiding processing fees for tickets. 

On June 28, 2024, Plaintiff filed his class action complaint.  On December 2, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”).  In the FAC, Plaintiff asserts two causes of action for violating (1) the Unfair Competition Law (“UCL”), and (2) the False Advertising Law (“FAL”). 

On January 2, 2025, Defendants filed the instant demurrer to the FAC.  On January 8, 2025, Defendants filed an amended demurrer to the FAC.  On February 13, 2025, Plaintiff filed an opposition.  On March 4, 2025, Defendants filed a reply.

Allegations of the Operative Complaint

            The FAC alleges the following:

            Defendants own and operate Knott’s Berry Farm and Knott’s Soak City in Buena Park, and California’s Great America in Santa Clara.  (FAC ¶ 1.) 

            “Until July 1, 2024, the Knott’s Berry Farm and Knott’s Soak City website, www.knotts.com, and the California’s Great America website, www.cagreatamerica.com, both advertised an ‘online price’ of tickets that did not include a mandatory processing fee. The amount of the processing fee was not revealed until the checkout page, five or six windows later, after the consumer had selected his tickets and chosen from a variety of options.”  (FAC ¶ 20.)  This processing fee would vary between $6.99 and $9.99 and “had no relation to the actual cost of processing ticket orders and was of no value to consumers.”  (FAC ¶ 20.)

            “On February 21, 2024, Plaintiff purchased tickets for Knott’s Berry Farm on www.knotts.com for himself and his family. The purchase included two general single-day tickets and two junior single-day tickets, along with a parking pass. The tickets were bought in celebration of his daughter’s sixth birthday. The advertised price did not include a $9.99 processing fee, which was not disclosed to Plaintiff until the checkout page. At that point, after having invested significant time selecting tickets and options, and having committed to visiting Knott’s Berry Farm, Plaintiff decided to proceed with the purchase.”  (FAC ¶ 27.)  “Plaintiff relied on Defendants’ fraudulent and deceptive representations in their junk fee drip pricing scheme. These misrepresentations played a substantial role in Plaintiff’s decision to purchase tickets from Defendants.”  (FAC ¶ 46.)

Request for Judicial Notice

            In conjunction with the moving papers, Defendants request that the Court take judicial notice of the following:

A.    True and accurate copies of images captured of the Knott’s Berry Farm website, Knott’s Soak City website, and California Great America website as they appeared on various dates throughout the statutory period (2020-2023) using Archive.org’s “Wayback Machine.” The images show the respective online ticketing screens as they appeared on the dates listed in the top right of each screen capture. Each image shows the advertised price of a single-day admissions ticket to the park as it would have appeared for a user on that date. This exhibit is judicially noticeable under Evidence Code section 452(h), because Archive.org’s “Wayback Machine” is a “source of reasonably indisputable accuracy.” Additionally, the online checkout process for a single-day ticket on the Knotts website (and by extension the California Great America and Soak City websites) is repeatedly referenced in Plaintiff’s first amended complaint. See Am. Compl. at ¶¶ 20, 27.

While the court “may take judicial notice of the existence of . . . Web sites . . . we may not accept their contents as true.”  (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193.)  Accordingly, though the Court can take judicial notice of the existence of Knott’s Berry Farm website, Knott’s Soak City website, and California Great America website, the Court cannot take judicial notice of any of its contents.  Therefore, Defendants’ request for judicial notice must be DENIED.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts “give the complaint a reasonable interpretation, and read it in context.”  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).) 

Defendants have satisfied the meet and confer requirement.  (McCormick Decl. ¶ 2.)

Discussion

Entire Complaint – Standing

            Defendants contend that the entire complaint fails because Plaintiff lacks standing under the UCL and FAL.

The purpose of California’s Unfair Competition Law (“UCL”) “is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. [Citation.]” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.)  Thus, the UCL prohibits unlawful, unfair or fraudulent business acts or practices.  (Bus. & Prof. Code, § 17200.)  “The false advertising law generally prohibits advertising that contains ‘any statement ... which is untrue or misleading, and which is known, or ... should be known, to be untrue or misleading....’ (Bus. & Prof. Code, § 17500.)”  (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 226.)

To have standing under both the UCL or FAL, “a party must now (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.”  (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322.)  “There are innumerable ways in which economic injury from unfair competition may be shown. A plaintiff may (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future property interest diminished; (3) be deprived of money or property to which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.”  (Id. at 323.)

“If a party has alleged or proven a personal, individualized loss of money or property in any nontrivial amount, he or she has also alleged or proven injury in fact.”  (Id. at 325.)  With regard to “[t]he phrase ‘as a result of’ in its plain and ordinary sense means ‘caused by’ and requires a showing of a causal connection or reliance on the alleged misrepresentation.”  (Id. at 326.)  Additionally, “a party has standing when they have ‘expended money due to the defendant's acts of unfair competition.’ [Citation.]  For example, a ‘plaintiff may ... be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.’ [Citation.]”  (Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 193.)  “[T]his standing requirement applies only to the named plaintiffs in a class action[.]”  (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1257.)

Here, Plaintiff alleges that “[o]n February 21, 2024, Plaintiff purchased tickets for Knott’s Berry Farm on www.knotts.com for himself and his family. The purchase included two general single-day tickets and two junior single-day tickets, along with a parking pass. The tickets were bought in celebration of his daughter’s sixth birthday. The advertised price did not include a $9.99 processing fee, which was not disclosed to Plaintiff until the checkout page. At that point, after having invested significant time selecting tickets and options, and having committed to visiting Knott’s Berry Farm, Plaintiff decided to proceed with the purchase.”  (FAC ¶ 27.)  “Plaintiff relied on Defendants’ fraudulent and deceptive representations in their junk fee drip pricing scheme. These misrepresentations played a substantial role in Plaintiff’s decision to purchase tickets from Defendants.”  (FAC ¶ 46.)  These allegations are sufficient to confer standing under the UCL and FAL.

In Veera v. Banana Republic, LLC (2016) 6 Cal.App.5th 907, the plaintiffs alleged that they were lured into the defendant Bana Republic’s shop by 40% off purchases signs.  “Though they would not have entered the store but for the advertised discount, they ultimately purchased some (but not all) of their selected items after being informed by a store clerk at the cash register that none of the items they wished to purchase were on sale.”  (Id. at p.911.)  Banana Republic moved for summary judgment – in part – on the grounds that plaintiffs lacked standing.  (Id. at p.912.)  The trial court agreed finding that the plaintiffs failed to establish any economic injury and lacked standing.  (Id. at p.913.)  The Court of Appeal reversed.  (Id. at p.914.) 

The Court of Appeal concluded that “the question of reliance and causation does not rest as a matter of law on whether plaintiffs knew the actual price of the items they purchased at the moment money was exchanged.”  (Id. at p.920.)  Rather, as long as “reliance on the misleading advertising was a substantial factor in causing plaintiff's decision to buy, the requirements of reliance and causation are met.”  (Ibid.)   

Here, as in Veera, Plaintiff responded to advertising that stated one price and then was told for the first time right before checkout that a processing fee of $9.99 would be added to the advertised price.  (FAC ¶ 27.)  Plaintiff was not informed of the additional processing fee until late into the process – after having invested a significant amount of time selecting tickets – and thus, Plaintiff completed the purchase paying a higher price than was initially advertised.  Moreover, Plaintiff alleges that he relied upon Defendants’ lower advertised price in purchasing tickets from Defendants.  (FAC ¶ 46.)  Because Plaintiff relied on the alleged misleading initial price without the processing fee, “the requirements of reliance and causation are met[,]” and Plaintiff has standing under the UCL and FAL.  (Veera, supra, 6 Cal.App.5th at p.920.)

The authority relied upon by Defendants is inapposite to the instant action.  For example, relying on Charbonnet v. Omni Hotels and Resorts (S.D. Cal., Dec. 16, 2020, No. 20-CV-01777-CAB-DEB) 2020 WL 7385828, Defendants contend that Plaintiff lacks standing.  As an unpublished federal district court opinion, Charbonnet has no precedential effect on this court.  (Alan v. Superior Court (2003) 111 Cal.App.4th 217, 229, [“the decisions of federal district and circuit courts, although entitled to great weight, are not binding on state courts even as to issues of federal law.”].)  Moreover, the facts of Charbonnet are plainly distinguishable.

In Charbonnet, the plaintiff used the third-party travel cite Expedia to book a hotel room at defendant Omni’s hotel in San Diego.  (Charbonnet v. Omni Hotels and Resorts (S.D. Cal., Dec. 16, 2020, No. 20-CV-01777-CAB-DEB) 2020 WL 7385828, at *1.)  On the Expedia page for Omni’s San Diego Hotel, “[t]he daily rate (i.e., $135) is displayed in large, bold font with smaller text underneath stating that the above rate is “per night.” [Id.] On the next line, in roughly the same font size as the “per night” text, the website states a different amount as the ‘total’ cost (i.e., ‘$181 total’) that “includes taxes & fees.” [Id. at p. 10.] Directly underneath this text, the consumer can click on a drop-down list labeled ‘Price details,’ which then breaks down the total cost into the daily rate, taxes, and the ‘property fee’ of $25.00. [Id.]”  (Charbonnet v. Omni Hotels and Resorts (S.D. Cal., Dec. 16, 2020, No. 20-CV-01777-CAB-DEB) 2020 WL 7385828, at *1.)  The plaintiff booked a hotel room at Omni’s San Diego Hotel through Expedia and alleged that “Omni's advertised daily rate on Expedia did not reflect the mandatory $25 property fee that was included in the total room charge, and that this fee was not revealed to her until she was ‘ready to buy.’”  (Ibid.)  Defendants moved to dismiss the FAC under Federal Rule of Civil Procedure 12(b) which the district court granted.  (Id. at *2.) 

The district court reasoned that Plaintiff failed to state a claim because no reasonable consumer could have been misled when the true price and the $25 property fee were shown on the very first page before the reservation process even began.  (Id. at *4.)  The district court further concluded that because the plaintiff had not plausibly shown that Omni failed to disclose its property fee, the plaintiff lacked standing.  (Id. at *5.)

In contrast to Charbonnet, here, Plaintiff alleges that he was not shown the total price including the processing fee until right before checkout after having invested time in making various ticket selections.  (FAC ¶ 27.)  In light of this distinction, Charbonnet is not persuasive.

Defendants further argue that Plaintiff lacks standing because based on the allegations of the FAC, “Plaintiff made the conscious decision to pre-purchase tickets because he was ‘committed’ to visiting Knott’s Berry Farm—not because there was any ambiguity that a processing fee would be charged on his purchase.”  (Motion at p.6:1-3.)  Thus, Defendants appear to assert that Plaintiff was not impacted by the increase of $9.99 in the ticket price as he was committed to go regardless of the price. 

In relevant part, the FAC alleges that “[t]he advertised price did not include a $9.99 processing fee, which was not disclosed to Plaintiff until the checkout page. At that point, after having invested significant time selecting tickets and options, and having committed to visiting Knott’s Berry Farm, Plaintiff decided to proceed with the purchase.”  (FAC ¶ 27 [bold added].)  Contrary to Defendant’s assertion, the FAC alleges only that Plaintiff committed to visiting Knott’s Berry Farm after he arrived at the checkout page.  There is no allegation that Plaintiff was committed to purchasing tickets to Knott’s Berry Farm prior to making it to the checkout page.  Thus, while Plaintiff was “committed” to the purchase, Plaintiff was only committed during checkout – like the Plaintiff in Veera. 

Accordingly, Defendants’ demurrer to the FAC for lack of standing is OVERRULED.

Entire Complaint – Likely to be Deceived

            Defendants contend that both the UCL and FAL claims fail because members of the public are not likely to be deceived. 

            “The UCL and the false advertising law ‘prohibit “not only advertising which is false, but also advertising which[,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.” [Citation.] Thus, to state a claim under either the UCL or the false advertising law, based on false advertising or promotional practices, “it is necessary only to show that “members of the public are likely to be deceived.” ’ [Citations.]”  (Chapman, supra, 220 Cal.App.4th at p.226.)  “An advertisement or promotional practice is likely to deceive if it includes assertions that are (1) untrue, or (2) “ ‘true[, but] are either actually misleading or which [have] the capacity, likelihood or tendency to deceive or confuse the public.’ [Citation].”  (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1135.)

            “Although ‘whether consumers are likely to be deceived is’ typically ‘a question of fact’ [Citations], that issue may be resolved on demurrer if ‘the facts alleged fail as a matter of law to show’ that a ‘reasonable consumer would be misled’ [Citations].”  (Shaeffer, supra, 44 Cal.App.5th at p.1140.) 

            Here, based on the facts alleged, the advertisement could mislead a reasonable consumer.  As alleged in the FAC, Defendants’ website for Knott’s Berry Farm advertised an “online price” of tickets that did not include a processing fee, and the processing fee was not revealed until checkout.  (FAC ¶¶ 20, 27.)  This is a type of “bait and switch” advertising.  “In such a scheme, one of the dangers is that the consumer will rely on the deceptive advertising to decide to buy merchandise. Then, when the deception is revealed, the consumer, now invested in the decision to buy and swept up in the momentum of events, nonetheless buys at the inflated price, despite his or her better judgment.”  (Veera, supra, 6 Cal.App.5th at p.921.)  In light of these allegations, the Court cannot determine that as a matter of law a reasonable consumer would not be misled.

            Accordingly, Defendants’ demurrer to the FAC on the grounds that members of the public are not likely to be deceived is OVERRULED.

First Cause of Action – UCL

The UCL prohibits unlawful, unfair or fraudulent business acts or practices.  (Bus. & Prof. Code, § 17200.)  “The Legislature intended this ‘sweeping language’ to include ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’” (Bank of the West v. Sup. Ct. (1992) 2 Cal.4th 1254, 1266.)  “A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

“Because the statute is framed in the disjunctive, a business practice need only meet one of the three criteria to be considered unfair competition.”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359.)  Section 17200’s “unlawful” prong “borrows violations of other laws ... and makes those unlawful practices actionable under the UCL.”  (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)  “[V]irtually any law or regulation—federal or state, statutory or common law—can serve as [a] predicate for a ... [section] 17200 ‘unlawful’ violation.’ ”  (Ibid.)  “A business practice is “fraudulent” within the meaning of section 17200 if it is “likely to deceive the public.”  (Id. at p.1380.) “‘A business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits.’ [Citation.]”  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1407–1408.)  The determination of whether a business practice is unfair involves an examination of that practice’s impact on its alleged victim, balanced against the reasons, justifications, and motives of the alleged wrongdoer.  (Ibid.)  In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim.  (Nolte, Supra, 236 Cal.App.4th at pp. 1407–1408; Cf. Durell v. Sharp Healthcare, supra, 183 Cal.App.4th at 1365 [“[u]nfair” business practices are those which offend an “established public policy” that is tethered to “specific constitutional, statutory, or regulatory provisions”]; Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1254–1255.)

            For the first cause of action for violation of the UCL, Plaintiff alleges that Defendants’ conduct is unfair, fraudulent, and unlawful.  Plaintiff alleges that Defendants’ conduct “constitutes an unfair business practice because the scheme misled customers, offends an established public policy of transparency in pricing, and constitutes immoral, unethical, oppressive, and unscrupulous activity that is substantially injurious to consumers.”  (FAC ¶ 42.)  Plaintiff further alleges that Defendants’ conduct “constitutes a fraudulent business practice because Defendants deceived Plaintiff into purchasing tickets based on a falsely low advertised price and hidden junk fees.”  (FAC ¶ 45.)  Finally, Plaintiff alleges that Defendants’ conduct is unlawful because it violates the FAL, and violates federal false advertising laws – i.e., 15 U.S.C. §§ 45(a)(1), 52(c).  (FAC ¶¶ 48-49.)

            Defendants contend that the first cause of action fails to the extent that (1) Plaintiff contends that the conduct is unfair, and (2) there is no private right of action under 15 U.S.C. § 45(a).  Defendants cannot challenge part of a cause of action through a demurrer.  A demurrer does not lie to part of a cause of action and can only be sustained for an entirety of a cause of action. (See Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 522, fn. 9; Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)

            As alleged, Defendants’ conduct violates the UCL as fraudulent because a reasonable consumer could be misled by Defendants’ advertising of its ticket pricing and hiding of the processing fee.  Defendants’ conduct – as alleged – is also unlawful as it violates the FAL.  Thus, it is unnecessary for the Court to address whether the conduct is “unfair” or is unlawful because it also violates other laws. 

            Accordingly, Defendants’ demurrer to the FAC is OVERRULED.

CONCLUSION AND ORDER

Defendants Cedar Fair, L.P., Cedar Fair Management, Inc., and Six Flags Entertainment Corporation’s demurrer to the First Amended Complaint is OVERRULED.

Defendants are to file and serve their answer no later than April 18, 2025.

A Non-Appearance Case Review re filing of Defendants’ answers is set for May 13, 2025 at 8:30 am in Department 9 – the same date as the Non-Appearance Case Review re mediation.  No later than May 6, 2025, the parties are to file a joint statement regarding the status of their mediation efforts, including the identity of any mediator they have selected and the date of any mediation they have scheduled.

Defendants are ordered to download the instant signed order from the Court's website and to file proof of service of the instant order on all other parties within five (5) days.

DATED:  March 18, 2025                                                      ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court