Adkins et al v. Apple Inc et al
Filing
335
ORDER DENYING PLAINTIFF'S APPLICATION UNDER FRCP 56(d) AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge William H. Orrick on 01/11/2017. (Redacted of confidential information.) (jmdS, COURT STAFF) (Filed on 1/11/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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FABRIENNE ENGLISH,
Case No. 3:14-cv-01619-WHO
Plaintiff,
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v.
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APPLE INC, et al.,
Defendants.
Re: Dkt. No. 288
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United States District Court
Northern District of California
ORDER DENYING PLAINTIFF’S
APPLICATION UNDER FRCP 56(d)
AND GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
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INTRODUCTION
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Defendants Apple Inc., AppleCare Service Company Inc., and Apple CSC Inc.
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(collectively, “Apple”) move for summary judgment of Plaintiff Fabrienne English’s claims
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related to Apple’s alleged misrepresentations and omissions in connection with AppleCare+
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(“AC+”), an extended service plan Apple offers to purchasers of iPhones. English’s core
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complaint is that Apple misrepresents to consumers that replacement iPhones under AC+ will be
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new when in fact many of the replacement devices in Apple’s service stock are “refurbished” or
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otherwise not new. She asserts claims under California law for violations of the Consumer Legal
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Remedies Act (“CLRA”), the False Advertising Law (“FAL”), the Unfair Competition Law
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(“UCL”), and the Secondhand Merchandize Labeling Law, Cal. Bus. & Prof. Code § 17531, and
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for fraud.
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English urges me to deny Apple’s motion for summary judgment, or to stay the matter
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pending additional discovery to give her the opportunity to present facts essential to justify her
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opposition under Federal Rules of Civil Procedure 56(d). She insists that, through additional
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discovery and/or testing of the phone, she can prove that her replacement phones under AC+ were
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not new when Apple gave them to her. I have already found that the phones she received were
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new, and she has not convinced me that any proposed testing would demonstrate otherwise. She
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also fails to justify her delay in pursuing additional discovery, and since it is disproportional to her
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claims anyway, she is not entitled to it. Her 56(d) application is DENIED.
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Because English does not offer sufficient evidence to establish that she relied on any
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alleged misrepresentation by Apple, she fails to make the requisite showing for Article III standing
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that her injury was caused by Apple. Her Secondhand Merchandize Labeling Law claim fails
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because she fails to show a genuine issue as to whether the phones she received were anything
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other than new. Although there may be a genuine issue whether English was denied a second
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incident under AC+, that fact is not material to any of her claims. Apple’s motion for summary
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judgment is GRANTED.
BACKGROUND
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Northern District of California
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I. FACTUAL BACKGROUND
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A. AC+ and APP
AC+ is a service plan offered by Apple for, among other products, the iPhone. Healy
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Decl. ¶¶ 3–4 (Dkt. No. 209-32). APP is a predecessor to AC+.1 Id. ¶ 3.
Apple offered APP until October 2011. Id. APP cost $99 and provided consumers with
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hardware repair coverage and telephone technical support for two years from the date of purchase
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of the iPhone.2 Id.
Apple launched AC+ in October 2011. Id. ¶ 4. For $99, purchasers receive coverage for
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two accidental damage incidents. Id. The service fee for each incident was initially $49. Id. On
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September 10, 2013, the service fee was increased to $79. Id. ¶ 5. There is no service fee under
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AC+ for repairs not resulting from accidental damage. Id. ¶ 6.
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From AC+’s first launch until September 2013, Apple allowed customers to purchase AC+
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at the time of accidental damage. Id. ¶ 8. During that time period, if a customer’s iPhone suffered
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In her TAC and briefing, English describes AC+ and APP as “essentially extended warranties.”
TAC ¶ 11 (Dkt. No. 139). I use “service plans” instead of “extended warranties” in this Order
unless quoting from materials submitted by English.
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Every new iPhone comes with a one year limited warranty and 90 days of telephone technical
support. See Patel Decl. Ex. R (Dkt. No. 209-19).
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accidental damage, rather than having to pay $149 for an out-of-warranty service event or
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approximately $449 for a new iPhone, the customer could purchase AC+ for $99 and receive a
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$50 discount on the $149 out-of-warranty service event, plus the two accidental damage incidents
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provided under AC+. Id. As discussed in more detail below, English purchased her AC+ plan in
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this way. TAC ¶ 34.
A customer who brings in her iPhone for service under AC+ or APP may have the iPhone
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repaired or replaced, depending on the circumstances (e.g., whether a repair is feasible) and the
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customer’s preference. When a customer decides to replace her iPhone, she receives a
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replacement device out of Apple’s “service stock.” Apple describes its service stock as consisting
of three types of iPhones: (1) new iPhones; (2) remanufactured iPhones; and (3) reclaimed
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United States District Court
Northern District of California
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iPhones. Lanigan Decl. ¶ 3 [sealed](Dkt. No. 208-17); Lanigan Decl. ¶ 3 [redacted](Dkt. No. 209-
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34) .
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New iPhones are made of all new parts and are “exactly the same” as the iPhones Apple
sells in its stores. Lanigan Decl. ¶ 4. New iPhones
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Id. As discussed
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below in more detail, the evidence in this case shows that English received only new iPhones as
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replacement devices, not remanufactured or reclaimed iPhones. Id. ¶¶ 9–10.
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Remanufactured iPhones are manufactured using the same process as new iPhones, but
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“could contain both new parts and recovered parts that have been extensively tested.” Id. ¶ 5.
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Apple states that “each and every remanufactured iPhone is inspected and tested to ensure that it is
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equivalent to a new iPhone in performance and reliability.” Id.
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Reclaimed iPhones are iPhones that have either
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. Id. ¶ 6. Apple states that “[t]hese (essentially new)
iPhones undergo a testing and screening process to ensure that they are equivalent to new in
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performance and reliability.”3 Id.
All iPhones in Apple’s service stock are shipped and stored in plain, white, unbranded
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boxes. See Williams Dep. at 210–11 (Patel Decl. Ex. T, Dkt. No. 209-21). Because all iPhones in
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the service stock are shipped and stored in this manner, Apple store employees do not know
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whether any particular replacement device is new, remanufactured, or reclaimed. Id. at 152–53,
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231–32. Customers who receive a replacement device do not keep the plain, white, unbranded
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box in which it is carried out from the service stock to the floor. Morrison Dep. 202:5–9 (Dkt. No.
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288-2).
The current AC+ terms and conditions state in relevant part:
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If during the plan term you submit a valid claim . . . , Apple will
either (a) repair the defect at no charge, using new parts or parts that
are equivalent to new in performance and reliability, or (b) exchange
the [iPhone], with a replacement product that is new or equivalent to
new in performance and reliability. All replacement products
provided under this plan will at a minimum be functionally
equivalent to the original product.
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United States District Court
Northern District of California
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TAC Ex. B (Dkt. No. 139-2); Patel Decl. Ex. O (Dkt. No. 209-16).
The AC+ and APP terms and conditions in effect until September 2013 similarly stated:
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If during the coverage period you submit a valid claim. . . , Apple
will either (a) repair the defect at no charge, using new or
refurbished parts that are equivalent to new in performance and
reliability, or (b) exchange the [iPhone] with a replacement product
that is new or equivalent to new in performance and reliability, and
is at least functionally equivalent to the original product.
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TAC Ex. C (Dkt. No. 139-3).
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B. English’s Purchase and Use of AC+
In September 2012, English obtained an iPhone 4 from Sprint in connection with signing
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up for Sprint wireless telephone service. English Decl. ¶ 3 (Dkt. No. 180-43); Patel MSJ Decl. Ex.
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2, English Dep. at 71:9–23 (Dkt. No. 288-3). She gave the iPhone to her minor son. Id.
On February 15, 2013, English and her son went to an Apple store in NorthPark Center,
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Texas because the screen on the iPhone had cracked. English Decl. ¶ 4; English Dep. at 61:23–25.
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In her TAC and briefing, English refers to all replacement iPhones other than new replacement
iPhones as “refurbished.” See, e.g., TAC ¶ 11. For ease of reference, I do the same in this Order
unless otherwise indicated.
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English states that in discussing AC+ with an Apple employee at the store, she was told that she
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“would have two ‘incidents’ available for occurrences such as a cracked screen or water damage,
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and that the replacement devices would be new.” English Decl. ¶ 6. She paid $99 for AC+ and
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another $99 to receive what the Apple employee allegedly described as a new iPhone 4. Id. ¶ 4;
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see also TAC Ex. E (Dkt. No. 139-5).
The replacement iPhone was presented to English in the plain, white, unbranded box in
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which Apple packages its replacement devices. Patel MSJ Decl. Ex. 2 at 104:9–106:16, 140:4–
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141:8. The box did not include “any label or other writing indicating that the [iPhone] was
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refurbished, reconditioned, used, or contained parts that were refurbished, reconditioned, or used.”
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TAC ¶ 40. English states that the Apple employee “took great care to unseal and open [the box] in
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United States District Court
Northern District of California
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front of [her],” and that “[w]hen he took the iPhone out of the packaging he did so in a way that
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made [her] think that the device was new.” English Decl. ¶ 7. English was not given the box, nor
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was she given a charger or earbuds. English Dep. at 105:1, 106.
At the time English purchased AC+, the plan’s terms and conditions were available in hard
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copy, available at apple.com, and provided via URL on “Smart Signs” (i.e., interactive iPads)
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throughout the store. Healy Decl. ¶¶ 9–11 (Dkt. No. 209-32). The Smart Signs state that
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“replacement equipment that Apple provides as part of the repair or replacement service may be
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new or equivalent to new in both performance and reliability.” Healy Decl. Ex. A (Dkt. No. 209-
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33) at APL000029437. English also received a pdf of the AC+ terms and conditions via email.
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English Dep. at 108:11. English admits that she never read the AC+ terms and conditions.4
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English Dep. at 107:18–108:17, 124:6–128:13.
English contends that the replacement iPhone she received on February 15, 2013 was not
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new and was in fact a “refurbished device.” English Decl. ¶ 9. She states that “[h]ad [she] known
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that [the] iPhone was not new, [she] would not have made the purchase, and would have
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English claims to have read and relied on the Repair Terms and Conditions prior to purchasing
AC+. English 2nd Decl. ¶ 14 (Dkt. No. 304-15). It provides, “When the product is covered by
warranty or an extended service contract, such as the AppleCare Protection Plan, Apple will
perform repairs under the terms of the warranty or the extended service contract, provided that you
have presented satisfactory proof of the products’ eligibility for such repairs.” TAC Ex. D
(“Apple Inc. Repair Terms and Conditions”)(Dkt. No. 38-4).
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considered other options such as getting an upgraded phone from Sprint.” Id. ¶ 5.
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Apple contends that the replacement iPhone was new. See Lanigan Decl. ¶ 9. It submits a
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declaration from Michael Lanigan, Director of AppleCare Supplier Quality Engineering and Mail-
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In Operations, who
Id. ¶ 1. He states that based on his research and
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analysis of Apple’s records, the iPhone English received on February 15, 2013 was a new device.
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Id. ¶ 9.
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English alleges that she “immediately started experiencing problems” with the replacement
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iPhone. English Decl. ¶ 11. The device “would freeze, stop working, and close without warning.”
Id. On July 22, 2013, she and her son went to an Apple store in Plano, Texas after the device
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United States District Court
Northern District of California
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completely stopped working and would no longer turn on. Id. An Apple employee there told her
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that the device had water damage and that she could use one of the accidental damage incidents
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under her AC+ plan to get a replacement. Id. English paid the $49.00 AC+ service fee and
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received another replacement iPhone 4. Id.; see also Patel Decl. Ex. E (Dkt. No. 209-6). This
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replacement device was again presented in a plain, white, unbranded box. English Decl. ¶ 11.
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According to English, the second replacement device, like her first one, was “refurbished.” Id.
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According to Apple, it was in fact new. Lanigan Decl. ¶ 10. English states that within a week of
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receiving the second replacement device, it began suffering from “freezing issues” like those
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exhibited by the first one. English Decl. ¶ 12.
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On February 28, 2014, English went back to the Apple store in North Park Center, Texas
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because the screen on her second replacement iPhone had cracked. English Decl. ¶ 13. English
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alleges that she was told by an Apple employee there that she had already used up both incidents
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allowed under her AC+ plan, and that as a result she was not entitled to another replacement
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device. English Dep. at 160:15–21. She states that the employee “cited [her] initial purchase from
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Apple in February 2013 and the July 2013 replacement as the incidents of accidental damage
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replacement that [she] was entitled to under [her AC+ plan].” English Decl. ¶ 13.
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II. PROCEDURAL BACKGROUND
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English initially brought her claims as one of three plaintiffs in a class action complaint
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filed by attorney Renee Kennedy. See Compl. (Dkt. No. 1). With the filing of the second
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amended complaint on January 17, 2015, the other two named plaintiffs dropped out, while a new
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named plaintiff joined in. See Dkt. No. 116. They filed the TAC on March 6, 2015, alleging four
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causes of action against Apple based on alleged misrepresentations and omissions in connection
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with AC+ and APP: (1) violations of the CLRA, TAC ¶¶ 73–94; (2) violations of the FAL, TAC
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¶¶ 103–111; (3) violations of the unlawful, unfair, and fraudulent prongs of the UCL, TAC ¶¶
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121–127; (4) violations of the Secondhand Merchandise Labeling Law, Cal. Bus. & Prof. Code §
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17531, TAC ¶¶ 112–120; and (5) fraud, TAC ¶¶ 95–102. Shortly after the TAC was filed, on
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March 19, 2015, the other named plaintiff dropped out of the case, leaving English as the only
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named plaintiff. See Dkt. No. 144.5
On January 5, 2016, I denied English’s motion for class certification because none of her
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Northern District of California
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theories of liability supported class certification, and also because she could not establish
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adequacy of counsel under Federal Rule of Civil Procedure 23(a)(4) in light of the deficiencies
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shown by her lead counsel, Ms. Kennedy. Class Certification Order (Dkt. No. 225). On
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September 23, 2016, Apple filed its motion for summary judgment on English’s individual claims
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related to her purchase of AC+ and alleged denial of coverage for a second incident. See Mot. 1–2
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(Dkt. No. 288).
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On October 15, 2016, one of plaintiff’s former co-counsels, who apparently had gained
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possession of the July 2013 replacement phone that English had received under AC+ and
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misplaced it, notified Kennedy that he had located it. Kennedy Decl. ¶ 4 (Dkt. No. 293-1).
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Plaintiff filed several motions seeking leave for permission to test the phone, and an extension of
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time to file her opposition. Dkt. Nos. 290, 293, 295, 296, 299. On October 24, 2016, I extended
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her deadline by four days (Dkt. No. 300), and she filed her opposition on October 28, 2016.
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Opp’n (Dkt. No. 305[redacted], Dkt. No. 304-3[under seal]). On October 31, 2016, I denied her
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request to test the phone, in part because plaintiff had not:
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Since English does not allege that she ever purchased the APP service plan, it is no longer at
issue in this case.
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specifically respond[ed] to defendants’ arguments that testing the
iPhone now will not prove that it was new or refurbished when
plaintiff received it from Apple in 2013, that the testing is not
proportionate to the needs of the case, that plaintiff has not provided
sufficient detail regarding the tests she proposes to run, and that she
has not provided a written description of the proposed testing
protocol.
Dkt. No. 307. But I also left open the possibility that briefing and evidence concerning the motion
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for summary judgment might establish the need for such testing. I heard argument from the
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parties on December 14, 2016.
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III. BACKGROUND OF 56(D) MOTION
Relevant to English’s request for additional discovery, she proffered two affidavits that
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identify three categories of discovery: additional information to determine whether or not her
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Northern District of California
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replacement unit was new; “testing” of the recently found 2013 replacement unit; and an
additional deposition of Apple employee “Ryan.” English Decl. 56(d) ¶ 5 (Dkt. No. 304-15);
English 2nd Decl. ¶¶ 10–13, 16. She submits that (1) “fingerprints, scratches and stickers on the
internal parts are evidence that the phone is refurbished;” (2) “[e]xperts can tell if the phone has
been opened before;” and (3) “[t]here are diagnostic, software and application tests that can be
run.” English Decl. ¶ 5 (citing Dixon Decl., Ex. M; and Huynh Decl., Ex. R).
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LEGAL STANDARD
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Summary judgment on a claim or defense is appropriate “if the movant shows that there is
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no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show
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the absence of a genuine issue of material fact with respect to an essential element of the non21
moving party’s claim, or to a defense on which the non-moving party will bear the burden of
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persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has
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made this showing, the burden then shifts to the party opposing summary judgment to identify
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“specific facts showing there is a genuine issue for trial.” Id. The party opposing summary
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judgment must then present affirmative evidence from which a jury could return a verdict in that
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party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986).
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On summary judgment, the Court draws all reasonable factual inferences in favor of the
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non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility
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determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
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facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony
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does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill
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Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
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United States District Court
Northern District of California
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Under Federal Rule of Civil Procedure 56(d),
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).
“[A] district court should continue a summary judgment motion upon a good faith showing
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by affidavit that the continuance is needed to obtain facts essential to preclude summary
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judgment.” State of Cal., on Behalf of California Dep't of Toxic Substances Control v. Campbell,
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138 F.3d 772, 779 (9th Cir. 1998). The party seeking to continue the motion “must show (1) that
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they have set forth in affidavit form the specific facts that they hope to elicit from further
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discovery, (2) that the facts sought exist, and (3) that these sought-after facts are ‘essential’ to
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resist the summary judgment motion.” Id.
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DISCUSSION
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All five of English’s claims stem from her allegation that Apple misrepresented or omitted
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the fact that she might not obtain a new replacement unit when receiving service under AC+. See
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TAC ¶¶ 73–127. Apple argues that, since she did in fact receive new phones on both occasions,
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all of her claims must fail. Mot. at 1. First, Apple states that English has suffered no injury since
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she received new phones, and so Apple is entitled to summary judgment because English lacks
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Article III standing for all five claims. Mot. at 9. Next, Apple contends that it did not
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“misrepresent” that English would receive a new phone, because she did in fact receive a new
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phone. Id. at 11. In the absence of any misrepresentation, her claims under the UCL, FAL, CLRA
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and for fraud must fail. Id. And, since she received a new phone, her Secondhand Merchandising
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Labeling Law claim must fail. Id. at 12.
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In the alternative, Apple argues for partial summary judgment to the extent her claims
under the UCL, FAL, CLRA and for fraud depend on English’s reliance on the AC+ terms and
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conditions, because the undisputed evidence establishes that she never viewed the terms and
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conditions prior to purchasing the plan. Id. at 13. Additionally, Apple argues for partial summary
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judgment to the extent her claims depend on a theory that Apple’s use of a plain white box
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misrepresents that replacement phones are new because using a plain white box is not an
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affirmative representation at all and plaintiff cannot meet the reasonable consumer standard. Id. at
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15. Lastly, Apple argues for summary judgment on English’s claim that she was denied a second
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Northern District of California
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incident because the undisputed facts prove that she was not denied a second incident. Id. at 17.
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English asserts the following genuine issues of material fact: whether the service units
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were in fact new; whether she was denied a second incident under AC+; and whether Apple
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properly discloses the plan’s length of time. Opp’n 8–15. English contends that she still suffered
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an injury, even if the iPhones she received as replacement units were new, but she admits that
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“[t]he main fact in contention is whether Plaintiff’s replacement iPhones [“service units”] are new
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rather than used or refurbished.” Id. at 6.
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I. PLAINTIFF’S 56(D) APPLICATION IS DENIED
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A. English’s Delay in Conducting Discovery
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On September 9, 2015, Apple filed a declaration with its opposition to class certification
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from Michael Lanigan, who “reviewed Apple’s database containing information regarding the
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source of iPhones used as replacement devices under AC+[,]” and discovered “the two
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replacement iPhones that Plaintiff received were ‘new’—meaning they were ‘made of entirely
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new parts, and therefore are exactly the same as the iPhones Apples sells as new in Apple-branded
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boxes in its retail stores.’” Id. at 10:1–6 (quoting Lanigan Decl. ¶¶ 1, 4). As discussed during the
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hearing on class certification, English had three weeks to pursue discovery on the issue prior to
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filing her reply to Apple’s opposition to class certification. Class Certification Hr’g Tr. at 6:14–
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19. She did none. One of her former co-counsels, Mr. Cutter,6 who ably argued her motion for
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class certification, accepted the evidence that English received a new rather than refurbished
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phone: “[y]ou know, I have no reason not to take Ms. Preovolos, who’s distinguished counsel, lot
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of experience, that she—likely it’s true… .” Hr’g Tr. at 9:6–9. I understood that representation as
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a waiver of English’s claim to additional discovery on Lanigan’s testimony.7 Apple correctly
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states that the undisputed evidence at class certification established, and I concluded, that the
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replacement iPhones were new. Mot. for Summ. J. at 1:7–8; id. at 8–11 (Dkt. No. 288).
I denied class certification in January, 2016, denied English’s motion for reconsideration in
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March, and the Ninth Circuit denied her petition for review in June. Nonetheless, English waited
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until the last day of August to seek any discovery related to her individual claims, even though she
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Northern District of California
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knew since a Case Management Conference on July 9, 2016 that her opposition to summary
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judgment would be due on October 24, 2016. Dkt. No. 289 at 3–4; Minute Entry (Dkt. No. 275).
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All in all, she waited nearly an entire year to seek discovery on the Lanigan testimony that she
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now seeks to question. See Reply at 3 (Dkt. No. 320); Defs.’ Opp’n to Pl.’s Administrative Mot.
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to Extend Time at 1–3 (Dkt. No. 292); Patel Decl. (Dkt. No. 292-2).
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There have been many requests for extensions in this case. English apparently feels
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aggrieved—in her administrative motion for an extension of time (Dkt. No. 290), she states,
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“please note that this Court has granted at least seven of Defendants’ motions for extension of
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time if not more, but has never granted one of Plaintiff’s motions as to extension of time.”
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10/10/16 Admin. Mot. at 6:7–10. Reality is much different, as shown below:
DATE
ECF REQUESTED FOR FILING
RESOLUTION
REASON
NO. BY
4/29/15 67
Apple
Declaration ISO Granted
Unopposed
Sealing
2/9/15
134 Apple
Response to
Granted
Stayed until after
Second
Court rules on
Amended
Plaintiffs’ pending
Complaint
motion for leave to
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Two California law firms and four solo practioners at different times have represented English in
addition to her lead lawyer, Renee Kennedy.
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I noted in the Order Denying Class Certification that “English withdrew her request for further
discovery on this issue.” Dkt. No. 225 at 14:1–2.
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1
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4/1/15
149
3
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Apple, with
contingent
request by
plaintiffs
30(b)(6)
depositions
Granted as to
both
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7
8
7/6/15
185
Apple
7/16/15
194
Apple
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10/2/15
216
Apple
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2/17/16
243
English
3/18/16
260
Apple
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Granted
Declaration ISO
Sealing
Reply to Motion
for
Reconsideration
Granted
Declaration ISO
Sealing
Opposition to SJ
Granted
Stipulation for 7 day
extension granted,
but request for 14
day extension denied
Unopposed
Granted in part
No reason
United States District Court
Northern District of California
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Granted,
including an
extension for
English to file her
Reply
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10/24/16 300
English
Extended plaintiffs’
deadline to file
motion for class
certification given
the extended
deposition deadline
Unopposed
Declaration ISO
Sealing
Opposition to
Class
Certification
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file Third Amended
Complaint
Due to the number
and variety of
disputes over the
appropriate scope
Granted in Part
In support of class
certification, English
filed a substantially
revised memorandum
of points and
authorities more than
one week after the
filing deadline,
including
declarations from
seven previously
undisclosed fact and
expert witnesses
Unopposed
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As evidenced by this chart, the only instances of extensions for substantive motions or
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27
responses granted to Apple were prompted by English’s own actions. Moreover, when Apple was
granted an extension, a corresponding extension was given to English. The docket is rife with the
Court’s leniency in overlooking English’s failure to follow the Federal Rules of Civil Procedure,
the Civil Local Rules and my Standing Orders during the pendency of this action. There is no
good cause for English’s delay in conducting discovery.
28
12
1
2
B. Evidence Regarding the Phone
The bulk of English’s claims stem from her belief that the replacement phones she received
from Apple through AC+ were not new. See Opp’n at 6:5–6 (Dkt. No. 304-3). While that may be
3
her belief, I have already concluded in the Order Denying Class Certification that the phones she
4
received were new, and she has offered no evidence to shake my determination of that fact.
5
English now challenges the evidence that the phones were new by pointing to (1) her
6
phone’s malfunctions, (2) the presumed proportion of remanufactured phones versus new phones
7
in the supply channel for service units, and (3) the fact that it took Apple two years to uncover the
8
evidence that her iPhones were in fact new at the time she received them as service units. Opp’n
9
at 8–9. In the absence of actual evidence concerning the phones she received, none of these
10
suppositions holds water.
United States District Court
Northern District of California
11
12
13
14
Apple counters the first point by arguing that “brand new devices can on occasion
malfunction,” and “[p]laintiff’s allegations and speculation ‘do not create a factual dispute for
purposes of summary judgment.’” Reply at 8 (citing Nelson v. Pima Cmty. College Dist., 83 F.3d
1075, 1081–82 (9th Cir. 1996))(Dkt. No. 320). Apple points out that English “never sought
15
repairs or any other assistance from Apple regarding the issues, nor did she research how to
16
17
address the freezing issue… .” Id. (citing TAC ¶ 40 and English Dep.). I agree that English’s
“conclusory allegations unsupported by factual data are insufficient… .” Arpin v. Santa Clara
18
Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001), especially considering the variability
19
with which electronic devices malfunction. See, e.g., Pecht Report ¶ 23–26 (Dkt. No. 18920
1[sealed]; Lall Report ¶16c (Dkt. No. 208-25[sealed], 209-39[redacted]).
21
22
As to the second point, Apple highlights a previous order in which I found “evidence
regarding the theoretical likelihood that English’s replacement iPhones would be refurbished does
23
little to counter evidence that the replacement devices she actually received were in fact new.”
24
Class Certification Order at 13:13–15 (emphasis in original) (Dkt. No. 225). The final point is
25
immaterial—the issue is whether there is a genuine dispute about its accuracy. None has been
26
raised.
27
28
13
1
2
1. Additional Discovery Related to the Phone
English claims that summary judgment is improper because “necessary facts in existence
are pending discovery.” Opp’n at 1. The parties submitted two Joint Letters regarding discovery
3
disputes—one on October 6 and one on October 20, 2016. Dkt. Nos. 289, 297. In the former,
4
plaintiff mentioned “discovery that Apple refuses to answer although served on 09.02.16,” as well
5
as an outstanding RFA and RFPs served on 10.04.16. Dkt. No. 289 at 1. In the latter letter, Apple
6
7
8
9
10
clarifies that it made its “last document production over a year ago, on July 1, 2015[,]” and that
“Plaintiff waited until Sept. 28 [2016] (less than a month before her opposition brief [was] due) to
raise any issues with respect to ‘updating’ the RFPs… .” Dkt. No. 297 at 3–4. Apple stated that
“[t]here is nothing for the Court to compel” because “Defendants have produced all responsive,
non-privileged documents for several of the RFPs[,]” and “[t]he remainder do not seek
11
United States District Court
Northern District of California
information that is relevant or likely to lead to the discovery of admissible evidence, and are
12
13
disproportional to the nature of Plaintiff’s individual claims.” Id. at 4:11–14.
“Plaintiff has not adequately demonstrated that the request to postpone summary judgment
14
and extend discovery is not due to a lack of diligence, nor what specific facts would be shown by
15
16
17
additional discovery.” Thommeny v. Paramount Pictures Corp., 2011 U.S. Dist. LEXIS 80291, at
*6 (C.D. Cal. July 13, 2011). Given plaintiff’s own delay, the waiver by her prior counsel, and the
likelihood that additional discovery will fail to prove anything—let alone a fact “essential” to
18
resist summary judgment—English’s request for additional discovery is denied. See Volk v. D.A.
19
Davidson & Co., 816 F.2d 1406, 1416 (9th Cir. 1987)(“The burden is on the party seeking to
20
conduct additional discovery to put forth sufficient facts to show that the evidence sought exists.”)
21
22
23
24
25
26
27
2.
Testing the Phone
English states that “if the Court were to force us to pick [between additional discovery and
testing the phone], we would rather be allowed to test, inspect, and open the iPhone.” Pl.’s
Opposed Admin. Mot. for Leave to File Pl.’s Supp. Mot. to Extend Time to File an Opp’n Brief to
Defs.’Mot. for Summ. J. at 2:25–27 (Dkt. No. 295). Apple opposed plaintiff’s initial motion to
test the phone because “such ‘testing’ would prove nothing regarding whether [the phone] was
new or ‘refurbished’ at the time Plaintiff received it from Apple[,]” and “would be especially futile
28
14
1
given that the iPhone (i) has been subjected to normal wear and tear since Plaintiff received it on
2
July 22, 2013, (ii) has been damaged (cracked screen) by Plaintiff, (iii) may have been subject to
3
unknown third-party repairs, and (iv) has been stored in unknown conditions by Plaintiff’s former
4
counsel.” Defs.’ Opp’n to Pl.’s Second Admin. Mot. Re Extension of Time to Oppose MSJ at 1–2
5
(Dkt. No. 294).
English owns the phone, so the “testing” I am asked to authorize is in actuality a command
6
7
that Apple and its experts monitor whatever English wants to do with her phone. I will not order
8
that because I do not see how any “testing” now will show whether the phone was new in 2013.
9
She has had the phone for almost four years, although it was apparently misplaced by her lawyers
for one of those years. There is no chain of custody for the phone. It is not at all clear how the
11
United States District Court
Northern District of California
10
“testing” that English discusses would prove that her phone was not new when she received it in
12
2013.8
13
The only “testing” that English proposes is akin to a visual examination, which I address
14
below.9 Dkt. No. 298 at 2:7. In addition, she claims that “Thang Huynh also told Kennedy that
15
there is a way to tell if the phone has been opened previously.” Id. Whether the device has been
16
opened before is one thing, but whether the phone was new three years ago is something entirely
17
different.
English beseeches the Court to allow her to open up the phone, “take the parts out, test the
18
19
phone, and run standard industry tests on it.” Pl.’s Statement Regarding Testing Pl.’s iPhone at
20
1:15–16 (Dkt. No. 298). She states that “the parts are coded and numbers and letters can help
21
identify whether the phones are refurbished or used.” Id. at 2:5–6. English submits a declaration
22
8
23
24
25
26
27
28
Plaintiff’s own expert report submitted in support of class certification confirms this conclusion:
“Electronic parts and products (devices, equipment) are known to wear-out with time, usage
conditions and environmental conditions.” Kennedy Decl. in support of Class Certification, Ex. 1
(Pecht Report) (Dkt. No. 189-1) ¶ 23.
9
She also mentions “diagnostic, software and application tests that can be run,” English Decl. ¶ 5
(Dkt. No. 305-15), but never elaborates on this testing. See Dkt. No. 299 at 4:20–22. She
references “step-by-step testing instructions.” Id. at 3: 7–8 (citing Dkt. No. 213-13). I do not see,
and English does not explain, how the referenced procedures, entitled “iPhone Finished Goods
Reclamation Process,” Dkt. No. 213-13, would be used to identify whether the phones English
received as replacement units in 2013 were new at the time she received them.
15
1
from her telecommunications expert, Dr. Nettleton, describing the various identifying numbers on
2
which she sought discovery: IMEI, MEID, IMSI, ICCID, HEX, DEC, and serial numbers.
3
Nettleton Decl. ¶¶ 3–15 (Dkt. No. 304-12). But nowhere does she explain how she will use these
4
numbers to prove whether or not her phone was new.10 Apple has stated that “the replacement
5
iPhones and their component parts have no ‘service history’ because they are brand new.” Dkt.
6
No. 289 at 5:7–8. Apple argues that “neither Plaintiff nor her telecommunications expert …
7
provides any basis as to why these numbers are relevant to whether Plaintiff’s replacement iPhones
8
were new.” Reply at 2 n.5 (emphasis in original). In the absence of an explanation of how she
9
would use the numbers to determine whether the phones were new or used, she has not met her
10
burden to show that this information is “essential.”
United States District Court
Northern District of California
11
Plaintiff proffers “expert” declarations stating that phones can be disassembled and
12
visually inspected for fingerprints, scratches and other marks. Dixon Decl. ¶¶ 9–10 (Dkt. No. 304-
13
16);11 Tapia Decl. ¶ 25 (Dkt. No. 304-17); Huynh Decl. ¶ 5 (Dkt. No. 304-21);12 see also
14
Dalrymple Decl. (Dkt. No. 310-6).13 Apple contends that an iPhone 4 cannot be taken apart
15
10
16
17
18
19
20
21
22
23
24
25
26
As an aside, Lanigan testified that “most IMEI numbers are produced later in the process. The
serial number is produced in the beginning of the process.” Lanigan Depo. 226:6–9. In light of
this information, I do not see, and English does not explain, how an IMEI number would provide a
different or more thorough history than a serial number.
11
Apple moves to strike the Dixon Decl. (Dkt. No. 304-16) and corrected Dixon Decl. (Dkt. No.
310-3) because she is not an expert and has no basis for her testimony. Reply at 4–6 (Dkt. No.
320 [redacted]; 319-3 [under seal]. According to Apple, the Elk Grove facility where Dixon
, and the “sole basis for her
purported ‘expert’ opinion is the five hours of training she claims she received from Apple and her
‘experience’ during her time at Apple.” Reply at 5; see Lanigan Decl. ¶ 7 (Dkt. No. 208-17[under
seal])(noting the type of work done at the Elk Grove facility). Apple also notes that workers at the
Elk Grove facility do not open or take apart iPhones. Garbutt Decl. ¶ 5 (Dkt. No. 319-8). Since
the evidence indicates that English’s replacement units were new, I find the Dixon declaration
minimally relevant and hardly probative, and give it little weight. She is not an expert. I do not,
however, find it necessary to strike the declaration. Apple’s motion is DENIED.
12
Apple moves to strike the Huynh Declaration because he is not an expert and his opinion lacks
foundation. Reply at 6. As discussed, I agree that Huynh does not provide sufficient details
regarding the “testing” or visual examinations he proposes. His declaration need not be stricken,
but I consider its deficiencies in deciding whether testing is warranted.
13
27
28
English filed a declaration from a “fingerprint expert” expounding on the process of
“fingerprinting.” Dalrymple Decl. (Dkt. No. 310-6). Apple moves to strike the Dalrymple
declaration as untimely because plaintiff filed it five days after her deadline to oppose summary
judgment. See Order at Dkt. No. 300. Plaintiff does not dispute that the declaration was untimely.
16
1
completely and put back together without compromising the iPhone. Schaeffer Decl. ¶ 3 (Dkt.
2
No. 320-9). I will address each declaration in turn.
3
The Dixon declaration is of little to no value since she
, and
4
there is no evidence or argument relating her work to a disposition of whether English’s phone
5
was new when she received it in 2013. Huynh himself states that he “may be able to tell if Ms.
6
English’s phone contains refurbished or used parts.” Huynh Decl. ¶ 4. But an unsupported
7
declaration that he may be able to tell if the phone contains refurbished or used parts is not enough
8
to show “that the facts sought exist.” Campbell, 138 F.3d at 779. And the Tapia declaration,
9
discussed in greater detail in Section III, below, confuses the matter even further, as he states that
“Apple also frequently put used or refurbished parts in even their brand new devices.” Tapia Decl.
11
United States District Court
Northern District of California
10
¶ 25. If that is true, and the phone—whether new, used, or remanufactured/refurbished—might
12
contain used or refurbished parts, there would be no purpose in “testing” it.
13
There are several problems with the reliability of any evidence ascertained as a result of a
14
visual inspection. First, the presence of fingerprints (or any other marks) would not mean that the
15
phone was not new when English received it in 2013. Counsel for English avers that she “does
16
not believe that Ms. English’s phone has even been opened.” Id. (emphasis added). Counsel’s
17
“belief” does not establish a foundation. And even if Huynh can determine that the phone has
18
been opened previously, there is not enough evidence to even begin to posit when it may have
19
been opened or by whom. Because a chain of custody has not been established, the origin of any
20
fingerprints (or any other markings) cannot be determined.
21
English’s declaration stating that she, her family members, and third parties have never
22
opened the phone is hardly sufficient to establish a reliable chain of custody either. English 2nd
23
Decl. ¶ 6 (Dkt. No. 304-15). She cannot speak for others, nor does she indicate that the phone was
24
always in her possession (as opposed, for example, to being in her son’s possession). She states
25
that on September 24, 2015, she placed the phone in a plastic bag, handed it to Ms. Kennedy (her
26
lead lawyer) and the next day viewed a photograph emailed by Mr. Parker (one of her other
27
28
See Mot. for Leave to File a Supplemental Mot. ¶ 8 (Dkt. No. 310). Because the declaration was
untimely (and is of no value), it is STRICKEN.
17
1
lawyers) to Ms. Kennedy and confirmed that the photograph appeared to be of the same phone that
2
she had handed over to Ms. Kennedy the previous day. Id. ¶¶ 4–5. Then she says that the phone
3
photographed by Mr. Parker on October 15, 2016, more than a year later, appears to be the same
4
phone that she handed to Ms. Kennedy on September 24, 2015. Id. ¶ 6. This is not persuasive.
5
But even if I accept that the phone is the same phone and that the phone has never been opened or
6
tampered with, English still has not demonstrated that there is a way to test the phone to determine
7
whether or not it was new when she received it in 2013.
8
9
While English submits declarations proposing her “fingerprint” theory, she offers no
corroborating evidence, such as a refurbished phone containing fingerprints, to bolster its
reliability. According to Lanigan, the service units that are remanufactured (as opposed to new
11
United States District Court
Northern District of California
10
buy units) come from service factories with few differences from those factories that ship only the
12
latest device. Lanigan Dep. 95–97 (Dkt. No. 304-5); see also Lanigan Decl. ¶ 5
13
(“Remanufactured iPhones are assembled using the same manufacturing process as new iPhones,
14
and could contain both new parts and recovered parts that have been extensively tested. … These
15
iPhones are manufactured by the same contract manufacturers that manufacture the new iPhones
16
Apple sells in its stores, and the production lines on which these iPhones are manufactured are
17
identical to those for new iPhones Apple sells in its stores, and the production lines on which these
18
iPhones are manufactured are identical to those for new iPhones.”) There is no reason to believe
19
that a phone processed in a service factory would contain fingerprints, while a phone processed in
20
another factory would not.
21
Plaintiff insists that “the device may contain the very answers and evidence Plaintiff needs
22
to prove her case.” Id. at 4:16–17. But she never explains how such “answers and evidence” will
23
prove that her phone was refurbished in 2013. Apple has repeatedly opposed plaintiff’s requests
24
for additional time and discovery on the basis that the amount of discovery is grossly
25
disproportionate to plaintiff’s claim, since out of pocket expenses relating to her claim are less
26
than $300. See, e.g., Defs.’s Opp’n to Plaintiff’s Mot. to Extend Time at 1:5-10 (Dkt. No. 292).
27
Because of the implausibility of her theory, the burden on Apple, and the lack of good cause as a
28
result of her delay in seeking this discovery, English is not entitled to additional discovery or an
18
1
opportunity to test the phone under the Court’s auspices. See Garrett v. San Francisco, 818 F.2d
2
1515, 1518 (9th Cir. 1987)(In seeking additional discovery under Rule 56, “an opposing party
3
must make clear what information is sought and how it would preclude summary judgment.”)
4
C. Additional Discovery Related to English’s Claim that she was Denied a Second Incident
5
Apple moved for summary judgment on the issue of whether English was denied a second
6
incident under AC+. See Mot. at 17. English visited the Apple store on February 28, 2014
7
because her iPhone had a cracked screen. TAC ¶ 38. She asserts that when she attempted to use
8
her second incident under AC+, an employee named Ryan told her she had used up both
9
accidental damage incidents under her plan. English 2nd Decl. ¶¶ 10–11. Apple maintains that its
business records demonstrate that an employee named Morrison assisted English, and that the
11
United States District Court
Northern District of California
10
records indicate that she was not denied an incident, but rather elected to wait for an upgrade
12
opportunity. Mot. at 17.
13
The parties have twice briefed the issue of the employee named “Ryan.” Dkt. Nos. 118,
14
297. Although Morrison admits that there was a male employee by the name of Ryan matching
15
the description provided by English, Morrison Dep. at 196:20 (Dkt. No. 310-10), Apple insists that
16
this employee has no recollection of assisting English. Dkt. No. 118 at 3:18-4:4; Dkt. No. 297 at
17
5:15-22. This does not justify Apple’s withholding Ryan’s identity given that Morrison did not
18
remember assisting English. See Morrison Dep. at 155:25 (Dkt. No. 288-2). But the question is
19
whether Ryan’s deposition is important or necessary to oppose Apple’s motion for summary
20
judgment. Because I find that English fails to state a claim for relief, even assuming she was
21
denied a second incident under AC+, a deposition of Apple employee “Ryan” is unnecessary. See
22
III, below.
23
II. UNDISPUTED EVIDENCE ESTABLISHES APPLE’S MOTION
24
A. Standing
25
1. Injury
26
Apple argues that since English received two new phones under AC+ she has not suffered
27
an injury in fact necessary to satisfy Article III standing for her claims under the CLRA, FAL,
28
UCL, Secondhand Merchandizing Labeling law, and for fraud. Mot. at 9. To have standing, a
19
1
plaintiff must show: (1) an injury-in-fact, i.e., an invasion of a legally protected interest that is (a)
2
concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2)
3
causation, which means her injury is fairly traceable to the challenged conduct of the defendant;
4
and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–62 (1992).
5
English claims that her replacement phones were not new, but rather were refurbished, and
6
that she suffered injury by overpaying for AC+ and the replacement iPhones, and losing the
7
iPhone she owned and turned in at the time she purchased AC+. TAC ¶ 30, 57. She contends
8
that, even if the phones she received were new, she suffered an injury because she would not have
9
bought AC+, a replacement device, or turned in her original phone if she knew that there was a
chance she would receive a used or refurbished phone as a replacement unit. Opp’n 16 (Dkt. No.
11
United States District Court
Northern District of California
10
304-3). She claims the following damages: “the improper denial of an incident under AC+, the
12
loss of a new replacement phone with new parts due to the denied incident, the loss of an extended
13
warranty contract that afforded for only new replacements, the loss of new phones with new parts,
14
the value of her original phone …, her original replacement cost for the first device purchased, the
15
cost of AC+, the cost of the replacement devices (“service fees”), the phones that she had to turn
16
in each time, and attorneys’ fees, costs, and expenses.” Id. at 17.
17
Apple disputes English’s alleged injury because (1) she could not have purchased the Best
18
Buy plan she claims she would have purchased; (2) the Best Buy plan was more expensive; and
19
(3) the Best Buy plan called for refurbished replacement devices. Reply at 14–15.
20
While it may be true that “[a] service that can provide either new or used replacement
21
phones is worth less than a service that provides only new replacement phones[,]” Opp’n at 16,
22
the fact remains that plaintiff received only new replacement phones. She therefore was not
23
“deprived of an agreed-upon benefit … .” Birdsong v. Apple, Inc., 590 F.3d 955, 961 (9th Cir.
24
2009). But English maintains that she “would not have purchased the AC+ plan had she been
25
made aware of its policies, including the nature of replacement devices, the loss of an incident at
26
enrollment, and the fact that she would not receive a full 2-years on her plan.” Id. at 16–17.
27
While issues remain regarding causation, see below, it is at least disputed whether English’s
28
injury-in-fact is the price she paid for AC+ and her replacement units, and whether she would not
20
1
have purchased AC+ if she knew she could receive used or refurbished phones. Mazza v. Am.
2
Honda Motor Co., 666 F.3d 581, 595 (9th Cir. 2012) (finding an injury-in-fact where consumers
3
purchased a product or paid more for it than they otherwise would have paid).
4
2. Causation/Actual Reliance
5
Even if English suffered an injury-in-fact, she must allege causation and redressability for
6
Article III standing. To establish causation, she contends that her injury is “traceable to
7
Defendants’ conduct (i.e., misrepresentations and omissions)… .” Opp’n at 17. Plaintiff faces
8
three problems here. First, she fails to proffer specific evidence of an oral misrepresentation.
9
Second, the undisputed facts prove that she did not read the AC+ terms and conditions, and
therefore, could not have relied on them in making her purchase decisions.14 If she did not view or
11
United States District Court
Northern District of California
10
rely on the AC+ terms and conditions, then Apple’s alleged written misrepresentations could not
12
have caused her injury. And third, as discussed later, I do not find that Apple’s written
13
representations would be misleading to a reasonable consumer.
14
a. Oral Misrepresentation
15
English contends that the Apple employee who helped her told her that replacement
16
devices would be new. TAC ¶ 36. In her opposition to summary judgment, English fails to
17
directly raise her oral misrepresentation theory and does not offer evidence in support of it. She
18
merely mentions it in passing. Opp’n at 3 (“Apple associates also use the word ‘new’ to describe
19
the devices… .). Although evidence supporting this theory was submitted during the class
20
certification briefing, it hardly helps English here. See Kennedy Decl. in support of Pl.’s Mot. for
21
Class Certification, Ex. 9 (Pozderac Depo.)(Dkt. No. 180-14[sealed]). Nicholas Pozderac, the
22
employee who sold English AC+ in February 2013, testified that—prior to 2012—when customers
23
asked if their replacement devices were refurbished, he told them “[i]t would have been a new
24
device.” Pozderac Dep. at 103:22–104:2. But sometime in early 2012, an interaction with a
25
customer prompted him to look up the AC+ terms and conditions, where he discovered the “new
26
14
27
28
Plaintiff’s argument that she read the Repair terms and conditions, which reference the AC+
terms and conditions, is not helpful. Reading a reference to the AC+ terms and conditions is not
equivalent to reading the AC+ terms and conditions. See II.A.1, below.
21
1
and functionally equivalent to new” language. Id. at 101:4–23. English does not submit evidence
2
of the precise language Pozderac used in his interaction with her in February 2013, but one can
3
infer that he may have revised his wording in 2012, after reading Apple’s “official” terminology as
4
documented in the AC+ terms and conditions. Id. at 104:10. Even without giving weight to this
5
reasonable inference that contravenes English’s theory, she fails to meet her burden to proffer the
6
evidence to support her allegations of an oral misrepresentation. In re iPhone Application Litig., 6
7
F. Supp. 3d 1004, 1012 (N.D. Cal. 2013)(“[A]t summary judgment, a plaintiff may no longer rely
8
on ‘mere allegations,’ but rather must set forth ‘specific facts’ supporting standing.”)
Accordingly, her allegations of misrepresentation must depend on either the AC+ terms
9
and conditions, which she did not read, or her “unbranded white box” theory. With either theory,
11
United States District Court
Northern District of California
10
she must proffer evidence of actual reliance to satisfy standing requirements under the CLRA and
12
UCL, In re iPhone Application Litig., 6 F. Supp. 3d at 1012 – 13, and the FAL, Pfizer Inc. v.
13
Superior Court, 182 Cal. App. 4th 622, 633, 105 Cal. Rptr. 3d 795, 804 (2010), and to state a
14
claim for common law fraud, Lazar v. Super. Ct, 12 Cal. 4th 631, 638 (1996).
15
b. Never Viewed or Relied on AC+ Terms and Conditions
In the order denying class certification, I found “it is undisputed that English did not view
16
17
or rely on the AC+ terms and conditions in making her purchase,” and so she “cannot bring claims
18
under the CLRA, FAL, or UCL, or for fraud, based on misrepresentations she was not exposed to
19
and did not rely on in making her purchase.” Class Certification Order at 20:10–13 (Dkt. No.
20
225)(citing Cohen v. DIRECTV, Inc., 178 Cal. App. 4th 966, 980 (2009); Pfizer Inc. v. Superior
21
Court, 182 Cal. App. 4th 622, 634 (2010)). Plaintiff admits she never read the AC+ terms and
22
conditions. Opp’n at 19; English 2nd Decl. ¶ 14. But she argues that she did not have to view the
23
AC+ terms and conditions because the Repair terms and conditions reference the AC+ terms and
24
conditions, and this is not the only basis of misrepresentation.15 Opp’n at 19. Lastly, she argues
25
misrepresentation in “Apple’s overall sales strategy and its failure to adequately disclose its
26
27
28
15
She also asserts oral misrepresentations, which I addressed above, and misrepresentations in the
“plain white box” theory, which I address below.
22
1
replacement policy.” Id. “To survive a standing challenge at summary judgment, Plaintiffs must
2
be able to provide some evidence that they saw one or more of Apple's alleged misrepresentations,
3
that they actually relied on those misrepresentations, and that they were harmed thereby.” In re
4
iPhone Application Litig., 6 F. Supp. 3d at 1027.
5
The Repair terms and conditions state:
6
When the product is covered by warranty or an extended service
contract, such as AppleCare Protection Plan, Apple will perform
repairs under the terms of the warranty or the extended service
contract, provided that you have presented satisfactory proof of the
product’s eligibility for such repairs.
7
8
English 2nd Decl. ¶ 14 (Dkt. No. 304-15). I do not see how reading the above cited language
10
establishes that the AC+ terms and conditions included a representation that consumers would
11
United States District Court
Northern District of California
9
only receive new phones under the terms of the extended service contract. Since English is unable
12
to meet this “far from unreasonable” burden, In re iPhone Application Litig., 6 F. Supp. 3d at
13
1027, to demonstrate that she saw and relied on an alleged misrepresentation in the AC+ terms and
14
conditions, she lacks standing under this theory, and Apple is entitled to summary judgment of
15
those claims that depend on an affirmative misrepresentation. See id. at 1013 (“California courts
16
have held that when the ‘unfair competition’ underlying a plaintiff's UCL claim consists of a
17
defendant's misrepresentation, a plaintiff must have actually relied on the misrepresentation, and
18
suffered economic injury as a result of that reliance, in order to have standing to sue.”)
To the extent English claims that her injury was caused by an omission on Apple’s part,
19
20
she fares no better. I previously rejected her omission theory in part because she “did not view or
21
rely on the terms and conditions in making her purchase… .” Class Certification Order at 22.
22
Moreover, “to be actionable the omission must be contrary to a representation actually made by
23
the defendant… .” Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 835 (2006). The
24
AC+ terms and conditions state that the phones would be “new or equivalent to new in
25
performance and reliability.” TAC Ex. B (Dkt. No. 139-2); TAC Ex. C (Dkt. No. 139-3). English
26
cannot show any omission that is contrary to this representation.16
27
16
28
English’s argument that “Apple’s misrepresentations and omissions … fail[] to make consumers
aware of the [AC+] plan’s true length calculated by the personal device brought in by the consmer
23
c. Plain White Box Theory
1
2
3
4
5
6
Plaintiff also asserts a theory of misrepresentation that depends on the context of Apple’s
entire sales strategy.17 She points to the presentation of the replacement unit in a sealed plain
white box and a plastic film on the device as creating “an overall impression on a consumer that
the device is new.” Opp’n at 20. Apple argues that a plain white box is not a representation
because “[w]hen a customer purchases a new iPhone, it comes in an Apple-branded box that
contains the iPhone itself, along with accessories including an iPhone charger and headphones.”
7
Mot. 15; Healy Decl. 13 (Dkt. No. 209-32). In an AC+ transaction, the iPhone does not come in
8
an Apple-branded box, the consumer does not receive any accessories, and the consumer does not
9
keep the box. Mot. at 15–16.
10
English acknowledges these differences, although she claims they are minor. Opp’n at 21;
11
United States District Court
Northern District of California
Dkt. No. 213-14 at 14-15; 233-43 at 3. She even points out additional differences—there is more
12
13
14
color on new boxes and one is slightly larger. Opp’n at 21. Given the numerous differences,
which she acknowledges, plaintiff’s plain white box theory is unconvincing. Even if the plain
white box was a representation, English still presents no evidence that she relied on it.18
15
16
17
18
19
20
21
22
23
24
[sic] at the initial purchase of AC+” suffers from the same deficiency. Opp’n at iii; see also id. at
15. The AppleCare+ Certificate emailed to her son at the time she purchased AC+ explicitly states
“AppleCare+ extends service coverage to 24 months from the purchase date of your Apple
product… .” Patel Decl. ISO Defs.’ Opp’n to Class Certification Ex. C (Dkt. Nos. 209-4, 2088[redacted]; Dkt. No. 208-7[under seal]). And further, “[i]f you purchased AppleCare+ in
conjunction with a service transaction, your coverage end date remains 24 months from the date
you purchased your Apple product.” Id. Moreover, the certificate clearly discloses the “Coverage
Period End Date” as September 25, 2014—two years from the date she purchased the original
phone, not the AC+ service plan. Id. I find these disclosures adequate to put a reasonable
consumer on notice of the coverage period end date. Therefore, Apple’s training materials stating
“two replacements are available for up to 2 years,” Kennedy Decl. Ex. 14 (Dkt. No. 18019)(emphasis added), would not be misleading to a reasonable consumer given Apple’s
affirmative representations. Further, the same training materials explicitly state, “[b]ecause [AC+]
protects the device for two years from the original purchase date, customers get the most out of
[AC+] when they buy it with their device.” Id. at 5. All of the evidence demonstrates that this
theory of misrepresentation is baseless.
17
25
It is worth noting that her arguments surrounding the plain white box theory have been
inconsistent. See Reply at 10.
26
18
27
28
In this vein, English identifies the Smart Signs and claims that “[t]he box that represents what
an iPhone 4s a [sic] service unit (“replacement device”) looks like on a Smart Sign depicts a
service unit box as a branded box with a logo.” Opp’n at 21. She then states, “[w]hen Ms.
English purchased she would have seen a logo branded box.” Id. This allegation comes closer to
an actual misrepresentation. But, even still, English has not demonstrated that she actually relied
24
1
Moreover, the fact remains that her replacement phones were new. As I stated in denying class
2
certification, “English does not explain how she can establish standing with respect to a theory
3
based on Apple’s allegedly improper packaging of refurbished replacement iPhones if she
4
received only new replacement iPhones.” Order Denying Motion for Class Certification at 14
5
(Dkt. No. 226).
6
B. Even if Plaintiff Adequately Alleged Reliance, She Can Not Meet the Reasonable
Consumer Standard
7
For plaintiff to assert claims under the CLRA, FAL, UCL and for common law fraud, she
9
must meet the “reasonable consumer standard,” which requires a “show[ing] that members of the
10
public are likely to be deceived.” Freeman v. Time, Inc., 68 F.3d 285, 288 (9th Cir. 1995)(internal
11
United States District Court
Northern District of California
8
quotation marks and citation omitted). “The California Supreme Court has recognized that these
12
laws prohibit not only advertising which is false, but also advertising which [,] although true, is
13
either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse
14
the public.” Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008). “Surveys and
15
expert testimony regarding consumer assumptions and expectations may be offered but are not
16
required; anecdotal evidence may suffice, although ‘a few isolated examples’ of actual deception
17
are insufficient.” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008).
18
English points to “[a] plethora of call logs” that “show that many reasonable consumers
19
were deceived.” Opp’n at 22; see Kennedy Decl. Ex. B (Dkt. No. 180). She also recites Apple’s
20
terminology to refer to this “ceremonious presentation of the service units,” as “polishing the
21
Apple.” Opp’n at 22 (citing Williams Dep. 215:22-216:1 (Dkt. No. 180-16)). At least some of the
22
call logs provide proof that some consumers believed that they would receive new iPhones under
23
AC+. See Call Logs (Dkt. Nos. 304-6–304-8). But there is no evidence that these consumers’
24
expectations under AC+ was in any way connected to receiving their replacement units in a plain
25
white box. Even if I simply accepted English’s theory, she still has not alleged that she—nor any
26
27
28
on the Smart Sign images. Moreover, Apple explains that the photos English identifies as
misleading are actually of Apple-branded boxes for new iPhones. Reply at 11 (citing Dkt. No.
233-43 at 3, 18).
25
1
of the customers in the call logs—relied on the plain white box as an affirmative
2
misrepresentation. Her claims still fail on this ground.
In the absence of any evidence that English relied on any misrepresentations by Apple, she
3
has not shown that her injury of purchasing AC+ was caused by Apple. She received a new
5
phone. And her omission theory fails because Apple adequately discloses the terms of AC+, she
6
just failed to read them. “AC+ terms and conditions clearly state that replacement iPhones will be
7
‘new or equivalent to new in performance and reliability,’ and therefore not necessarily new.”
8
Mot. at 12 n.4. A plaintiff asserting claims for fraudulent misrepresentation must show a specific
9
misrepresentation that she actually relied on. Baltazar v. Apple, Inc., No. CV-10-3231-JF, 2011
10
WL 588209, at *3 (N.D. Cal. Feb. 10, 2011). Under any theory supported by evidence, English’s
11
United States District Court
Northern District of California
4
injury was not caused by Apple, and she therefore lacks standing to pursue her misrepresentation
12
claims.
13
C. Secondhand Merchandise Labeling Law Claim
14
15
16
17
18
19
20
The Secondhand Merchandise Labeling Law states:
It is unlawful for any person, firm, or corporation ... to advertise,
call attention to or give publicity to the sale of any merchandise,
which merchandise is secondhand or used merchandise, or which
merchandise is defective in any manner, or which merchandise
consists of articles or units or parts known as “seconds,” ... unless
there is conspicuously displayed directly in connection with the
name and description of that merchandise and each specified article,
unit, or part thereof, a direct and unequivocal statement, phrase, or
word which will clearly indicate that the merchandise or each
article, unit, or part thereof so advertised is secondhand, used,
defective[.]
21
Cal. Bus. & Prof. Code § 17531. There is no genuine issue whether the phones English received
22
were new. The Secondhand Merchandise Labeling Law does not apply. Apple’s motion for
23
summary judgment of this claim is GRANTED.
24
III. THE DENIAL OF A SECOND INCIDENT, IF IT OCCURRED, FAILS TO CREATE
A MATERIAL DISPUTE BECAUSE THERE IS NO EVIDENCE OF FRAUDULENT
INTENT
25
26
Let’s assume, as English hopes, that the Apple employee named Ryan would remember
27
her, their conversation nearly three years ago, and that when he looked up her information, it
28
showed that she didn’t have any incidents left, despite the note to the contrary written by
26
1
Morrison.19 That might establish a breach of contract claim if Apple failed to provide English
2
with two incidents, in addition to the “incident” at the time she purchased AC+. But English does
3
not assert that claim. Instead, she alleges claims based on fraud under the UCL, CLRA, FAL and
4
common law, none of which reference the purported denial of a second incident. See TAC ¶¶ 73–
5
127. Both parties dedicated significant portions of their briefing to the issue of whether plaintiff
6
was denied a second incident, and yet neither party has identified to which claims the issue relates.
7
See Mot. at 17–19; Opp’n at 10–15; Reply at 12–13. Rather than supporting an element of her
8
fraud-based claims, the denial of a second incident seems to go towards English’s purported
9
damages. See Opp’n at 17. Although this case has been pending since 2014, English has
10
proffered no evidence of fraud.
Apple’s records, prepared by employee Morrison, state that English: “decided to wait for
United States District Court
Northern District of California
11
12
an upgrade in may [sic]20 before getting a new phone[.] Resolution: Ownership Opportunity[.]
13
Reason: Future Purchase[.]” O’Neil Decl., Dkt. No. 208-23 at APL00000597 [sealed]; Dkt. No.
14
209-37 at APL00000597 [redacted]. Morrison testified that his notes from the transaction meant
15
English “ha[d] the option of purchasing another product as opposed to doing a service transaction
16
through the Genius Bar,” and she “chose not to use the Genius Bar to get another phone, but,
17
instead, to wait for her upgrade, which, to me, I would describe as an ownership opportunity.”
18
Patel MSJ Decl. Ex. 1 (Morrison Dep.) at 166:5–9, 14–17.
19
English counters with a declaration from former Apple employee Gabriel Tapia, who has
20
no personal knowledge about the way Apple responded to her second incident. But he interprets
21
Apple’s records to conclude that they “validate that Ms. English indeed lost an incident.” I do not
22
19
23
This is the evidence Ms. Kennedy suggested Ryan might provide when I asked for an offer of
proof at the hearing on this motion. It seems unlikely that Ryan would testify in this way.
24
20
25
26
27
28
Both parties accept that “may” does not accurately reflect when English would be eligible for an
upgrade, as she was not eligible for an upgrade until around September 26, 2014 (two years
following the purchase of her “original” device). But neither party discusses whether the
employee who took the notes (whether it was Morrison or Ryan) mistakenly wrote “may” or was
told by English that she would be eligible in May. If it was a mistake, that’s one thing, but if
English represented and believed that she would be eligible for an upgrade in May, then the theory
of her waiting eight weeks and foregoing the $49 service fee is more plausible than her deciding to
wait eight months for an upgrade.
27
1
think that the records require “expert” interpretation—the author of the note has explained what he
2
meant. See id. Tapia, who worked at Apple for seven years and helped work on the
3
MobileGenius, an application used by Apple employees on the floor to assist customers, said that
4
the loss of an incident happened at all the New York stores where he worked. Opp’n at 10
5
(quoting Tapia Decl. at Dkt. No. 304-17[under seal]);21 Tapia Decl. ¶ 4 (Dkt. No. 304-17). He
6
states, “[w]hen processing a repair in MobileGenius or iRepair, an icon would appear if the phone
7
was purchased with AppleCare+. When all AppleCare incidents were consumed, the plus sign
8
would turn to a red logo.” Id. ¶ 10. Tapia reviewed the records from English’s February 28, 2014
9
interaction and reported that “
10
did not have AppleCare+ coverage available. Id. ¶ 14.
English highlights the record notes to bolster her position:
11
United States District Court
Northern District of California
” meant that the phone
12
13
” Opp’n at 10 (quoting Dkt. No. 232-12)22. Apple counters that this
14
description “mean[t] that there [was] accidental damage, and does not provide any information
15
regarding whether the iPhone is covered under AC+.” Reply at 13. Apple contends that “
could fall under AC+, or it could fall outside AC+[,]” and that English’s
16
17
“interpretation of [the] records … does not create a genuine dispute of material fact.” Id. at 12–
18
13. English claims that the interpretation that she elected to forego an incident under AC+ to wait
19
for her upcoming upgrade does not make sense since she did not upgrade until eight months later
20
on October 18, 2014 and had to operate with a cracked screen until then.23 Id. at 11. She also
21
highlights Apple’s own evidence that “this AC+ program [allowing enrollment ‘at time of
22
21
23
24
25
26
Numerous Tapia declarations have been filed in this case. See Dkt. Nos. 233-29[redacted], 2654[sealed] (mistakenly labeled as 265-5), 180-7[sealed], 214-26[sealed]. A version of this
declaration was previously sealed by the court. Dkt. No. 285. Defendants filed a redacted version
at Dkt. No. 286. In the Order Denying Motion for Reconsideration, I found that the declaration
labeled as exhibit 13N was “too conclusory and speculative to materially impact the analysis in the
Class Certification Order.” Dkt. No. 263 at 7 n.7. In this Order, I consider his declaration only as
it relates to English and Apple’s records of English’s transaction.
22
This exhibit was previously sealed by the court. Dkt. No. 285.
23
See supra note 9.
27
28
28
1
incident’] had the highest number of incidents utilized compared with any other AC+ program.”
2
Id. at 12 (citing Healy Decl. (Dkt. No. 209-32 at 22:27)). And lastly, she points to Apple’s own
3
training material in an unsuccessful attempt to bolster her position. See Opp’n at 10. The training
4
material states that sometimes an “ownership opportunity,” i.e., an opportunity to buy a new
5
phone, is a better option for a customer than receiving a replacement unit through AC+. Opp’n at
6
10 (citing Dkt. No. 180-19 at 9[under seal]). None of this is relevant to whether English was
7
denied a second incident.
If there is a genuine dispute whether English was denied a second incident, it does not
8
9
create a dispute regarding any fraud or misrepresentation, both of which require intent. According
to Apple, its policy, training materials, and customer records “establish that customers who, like
11
United States District Court
Northern District of California
10
Plaintiff, purchased AC+ at the time of an out-of-warranty repair did in fact receive coverage for
12
two incidents of accidental damage in addition to the initial out-of-date warranty repair.” Mot. at
13
18. To counter Apple’s contentions, English points to the name of the program (“AppleCare+
14
Enroll at Time of Incident”), the same training materials, and the statistics behind the number of
15
customers who purchased AC+ at the time of incident and allegedly used both incidents. She does
16
not suggest how Ryan’s alleged failure to provide a second incident was fraudulent, and she
17
therefore has not shown how the issue of whether she was denied a second incident is material to
18
any of her claims in this case.
19
IV. ADMINISTRATIVE MOTIONS24
On January 27, 2015, this court signed a stipulated Protective Order in this case. Dkt. No.
20
21
127. To abide by this protective order, plaintiff filed an administrative motion to file certain
22
documents under seal, Dkt. No. 304, and “corrected” exhibits, Dkt. No. 306. Plaintiff also
23
introduces some exhibits via declaration at Dkt. No. 310. “Plaintiff takes no position … but
24
wishes to give defendants every opportunity to request that the documents be sealed.” Admin.
25
Mot. ¶ 3, see also Kennedy Decl. ¶ 5 (Dkt. No. 304-1). Given that plaintiff seeks only to abide by
26
the protective order, I will focus on defendants’ responses to plaintiff’s motions.
27
24
28
Plaintiff’s motions at 304 and 310 are addressed in the table. Plaintiff’s motion at 314 is
TERMINATED AS MOOT. Defendants’ motion at 319 is addressed in the table.
29
1
Some documents filed by plaintiff were previously sealed, which is indicated in the table
2
below. For ease of reference, documents are ordered by ECF number. Apple submitted the
3
declaration of Pami Vyas in support of sealing, which states that plaintiff’s opposition and
4
supporting exhibits contains: “(i) confidential information regarding Apple’s testing processes, (ii)
5
confidential information regarding Apple’s sales and service numbers, and (iii) confidential
6
information regarding Apple’s databases and data capabilities.” Vyas Decl. ¶ 2 (Dkt. No. 315-1).
7
Apple filed a motion to seal portions of its reply, Dkt. No. 319, supported by the Vyas
8
declaration at Dkt. No. 319-1. For the most part, I find Apple’s requests specific and narrowly
9
tailored to cover only highly confidential information. Apple’s specific and narrowly tailored
requests to seal information pertaining to its testing processes and procedures, sales and services
11
United States District Court
Northern District of California
10
numbers, and databases are GRANTED as indicated in the table below.
12
However, I am unsealing a portion of Apple’s business records pertaining to English that I
13
previously sealed because I do not find that Apple has established compelling reasons to seal the
14
text entry. The request to seal all references
15
16
.” is DENIED. In addition, I plan to unredact this Order in its entirety and to unseal all
17
general information related to the type of devices used as replacement units. There is no
18
compelling reason to redact any of it. But because I previously granted requests to seal this
19
information, if Apple disagrees it should respond within seven days with compelling reasons why
20
any reference in this Order should remain under seal.
21
I otherwise rule on the motions as follows:
22
23
24
25
26
27
28
Dkt. No. 315
Defs.’ Response to Pl.’s Administrative Mot. to File Certain Documents Under Seal
ECF No.
Ex. No.
ECF No. of
Document
Court’s Ruling
Previously
Sealed Ex.
304-3
N/A
N/A
Pl.’s Opp’n to Defs.’ GRANTED IN
Mot. for Summ. J.
PART
DENIED AS
Portions to be sealed: TO 10:23.5
9:11–13; 10:23.5;
30
1
2
304-4
N/A
N/A
304-5
Ex. A
256-7
304-6
304-7
304-8
304-9
306-1
Ex. B-1
Ex. B-2
Ex. B-3
Ex. C
N/A
N/A
N/A
256-28
304-10
306-2
Ex. D
256-30
304-13
Ex. G
11:24; 22:16–17
Renee Kennedy
Decl.
Michael Lanigan
Dep. excerpts
N/A
3
4
5
6
GCRM records
GCRM records
GCRM records
Training – Enrolling
in AC+ at the Time
of Incident on an
iPad
Training – Enrolling
in AC+ at the Time
of Incident on an
iPod
Apple’s Highly
Confidential
Responses to ROG
Nos. 3, 5, 10-12, 1824, 29(a), 30-34, 39
in Pl.’s First Am.
Interrogatories, Set
Six
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
304-15
Ex. J
N/A
304-16
304-17
Ex. M
Ex. N
304-18
Ex. )
N/A
Same
information
sealed in
previous versions
of Tapia
Declarations
(Dkt. Nos. 22321, 225, 253-3,
285).
N/A
304-19
Ex. P
256-32
21
22
23
24
25
26
27
28
31
DENIED
GRANTED
(previously
sealed)
DENIED
DENIED
DENIED
GRANTED
(previously
sealed)
GRANTED
(previously
sealed)
GRANTED
Portions to be sealed:
5:4–7; 6:8–11; 14:21;
18:13–16; 19:14–19,
21–25, 27–28; 20:1–
4
Fabrienne English
DENIED
Decls.
Bathena Dixon Decl. DENIED
Gabriel Tapia Decl.
GRANTED IN
PART;
Portions to be sealed: DENIED IN
5:11, 15.5; 7:9.5–12
PART (5:11,
15.5)
Salvador Toledo
Depo. Excerpts
Training – AC+
within 30 days
DENIED
GRANTED
(previously
sealed)
304-20
Ex. Q
3
304-21
310-2
Ex. R
“Ex. A”25
N/A
N/A
4
310-9
Ex. L
Training – AC+
Processing an
AppleCare+ Repair
Thang Huynh Decl.
Bathena Dixon
“Corrected” Decl.
Kenneth Morrison
Depo. Excerpts
256-36
N/A
1
2
5
6
Dkt. No. 319
Defs.’ Mot. to Seal Portions of Their Reply Filings in support of Summ. J.
320
N/A
N/A
Apple’s Reply
GRANTED
(previously
sealed)
DENIED
DENIED
DENIED
DENIED
7
Portions to be sealed:
4:16; 5:3–6, 8, 23–
24; 13:4–6, 8
Mitch Garbutt Decl.
8
9
320-8
N/A
N/A
GRANTED
10
Portions to be sealed:
1:10
Kenneth Morrison
Dep. excerpts
United States District Court
Northern District of California
11
12
320-5
Ex. D
13
167:11, 18, 21, 23;
168:8, 16–21
14
GRANTED IN
PART
DENIED AS
TO 167:11, 18,
21, 23
CONCLUSION
15
I GRANT Apple’s motion for summary judgment in full and will enter judgment
16
17
accordingly. English has failed to raise a disputed issue whether she relied on an affirmative
18
misrepresentation made by defendants, dooming her CLRA, FAL, UCL, and common law fraud
19
claims. Her claim under Secondhand Merchandise Labeling Law claim fails because there is no
20
dispute that she received new phones. Her request for further discovery lacks good cause and is
21
DENIED.
IT IS SO ORDERED.
22
23
Dated: January 11, 2017
______________________________________
WILLIAM H. ORRICK
United States District Judge
24
25
26
25
27
28
This declaration is labeled as Exhibit A to a different Kennedy declaration entitled, “Declaration
in Support of Plaintiff’s Motion for Leave to File a Supplemental Motion to Seal and Also Leave
to File Bathena Dixon’s Corrected Declaration, Brian Dalrymple’s Declaration, and Ex. L ISO
Opposition to Summary Judgment.” Dkt. No. 310-1.
32
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