Fazio v. Apple, Inc

Filing 68

ORDER by Judge Claudia Wilken GRANTING 32 MOTION TO DISMISS. (ndr, COURT STAFF) (Filed on 7/23/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IN RE IPHONE 4S CONSUMER
LITIGATION,

No. C 12-1127 CW

________________________________/

ORDER GRANTING
MOTION TO DISMISS
(Docket No. 32)

Defendant Apple, Inc. moves to dismiss the consolidated class

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action complaint (CCAC) filed by Plaintiffs Frank M. Fazio,

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Carlisa S. Hamagaki, Daniel M. Balassone and Benjamin Swartzmann.

United States District Court
For the Northern District of California

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Plaintiffs oppose Apple’s motion.

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filed a supplemental opposition to Apple’s motion.

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considered the arguments presented by the parties in their papers

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and at the hearing, the Court GRANTS Apple’s motion to dismiss and

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grants leave to amend.

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Plaintiff David Jones has also
Having

BACKGROUND

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The following facts are taken from Plaintiffs’ consolidated

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class action complaint and certain documents submitted by Apple,

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of which the Court takes judicial notice as discussed below.

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Apple manufactures, designs, produces and sells several types of

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electronic products, including, among others, personal computers,

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portable music players, cellular phones and other communication

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devices.

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iPhone 4S, launched in October 2011.

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latest version of Apple’s iPhone, which functions as a mobile

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phone, an music player and an Internet communications device all

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in one and features desktop-class email, web browsing, searching,

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and maps.

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distinguished by Apple from the previous iPhone devices, including

CCAC ¶ 32.

Among these products is the well-known

Id. at ¶¶ 3-4.

Id.

The iPhone 4S was the

Plaintiffs claim that the iPhone 4S is

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the iPhone 4, predominantly based on the inclusion of a feature

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called “Siri.”

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Id. at ¶ 4.

According to Apple’s October 4, 2011 press release

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introducing the feature, Siri is “an intelligent assistant that

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helps you get things done just by asking.”

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press release, Apple described the feature in the following way:

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In the

Siri understands context allowing you to speak naturally
when you ask it questions, for example, if you ask “Will
I need an umbrella this weekend?” it understands you are
looking for a weather forecast. Siri is also smart
about using the personal information you allow it to
access, for example, if you tell Siri “Remind me to call
Mom when I get home” it can find “Mom” in your address
book, or ask Siri “What’s the traffic like around here?”
and it can figure out where “here” is based on your
current location. Siri helps you make calls, send text
messages or email, schedule meetings and reminders, make
notes, search the Internet, find local businesses, get
directions and more. You can also get answers, find
facts and even perform complex calculations just by
asking.

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United States District Court
For the Northern District of California

Id. at ¶ 34.

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Id.

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on iPhone 4S in English (localized for US, UK and Australia),

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French and German.”

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The press release noted that “Siri will be available in beta

Request for Judicial Notice (RJN), Ex. 1.

In the press release, Apple also advertised that the iPhone

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4S had other “incredible new features” in addition to Siri,

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including a “dual-core A5 chip for blazing fast performance and

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stunning graphics; an all new camera with advanced optics;” and

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“full 1080p HD resolution video recording.”

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Id.

On the same day that the press release was issued, Apple had

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a press conference in which it introduced Siri as a “digital

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assistant” and “the coolest feature of the new iPhone 4S.”

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¶ 24; see also RJN ¶ 3, Ex. 3 & “Apple Special Event: October 4,

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2011,” http://www.apple.com/apple-events/october-2011 (last

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accessed July 8, 2013).

CCAC

During the interactive demonstration,
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Siri was asked live “do I need a raincoat today” and promptly

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replied “it sure looks like rain today” and displayed the weather

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forecast.

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CCAC ¶ 24.

The presenter asked Siri many other questions and requests as

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well and got prompt and appropriate responses.

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Special Event: October 4, 2011,” http://www.apple.com/apple-

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events/october-2011.

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Paris?” and Siri responded that the “time in Paris, France is 8:16

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PM,” and showed a clock with that time.

RJN ¶ 3, “Apple

For example, he asked, “What time is it in

Id.

He asked Siri to

United States District Court
For the Northern District of California

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“wake me up tomorrow at 6 a.m.” and Siri responded showing that an

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alarm was “on” and said, “OK, I set it for 6 am.”

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asked, “How is the NASDAQ doing today,” and Siri responded that

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“the NASDAQ Composite is down right now, at 2,321.70” and showed a

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graph.

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Palo Alto” and Siri displayed with a list of restaurants, sorted

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by rating.

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responded, “Let me think about that.

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displayed a definition of Mitosis on the screen.

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asked, “How many days are there until Christmas,” and Siri

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responded, “Let me check on that. . . One moment . . .

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this for you,” and displayed a screen showing the number of days

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until Christmas Day, along with other information.

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presenter also reiterated that it was “easy” to use Siri and that

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users do not need to use precise words to use Siri but rather that

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Siri understands general words and “conceptual questions” to

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determine what the user is requesting.

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Id.

Id.

He also

He told Siri, “Find me a great Greek restaurant in

Id.

He directed Siri, “Define Mitosis,” and it
I found this for you” and
Id.

He also

Id.

I found

The

Id.

During the presentation, various speakers mentioned that Siri
was “beta” software or “not perfect.”
3

Id.

At the start of the

1

segment on Siri, the Apple representative introduced the person

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who would do a demonstration of Siri and stated that “this demo

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is, of course, of beta software.”

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the demonstration, “You can’t ask it everything and it’s not

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perfect.”

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representative reiterated, “As we have said, it will be beta at

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the start, and you’ve seen how great it is already.

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mean that we will add more languages over time and more services

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over time as well.”

United States District Court
For the Northern District of California

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Id.

Id.

The presenter noted during

At the end of the segment, the Apple

By beta, we

Id.

Apple engaged in an extensive multi-million dollar,

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nationwide marketing campaign for the iPhone 4S that showcased the

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Siri feature.

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market the iPhone 4S nationally, Apple asked, “How do you improve

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on something so extraordinary?” and answered “now we’re

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introducing Siri.”

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four out of seven recent iPhone 4S television advertisements

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focused solely on Siri.

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out of Apple’s ten television advertisements displayed featured

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Siri).

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conveyed that Siri was able to perform various tasks that were

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depicted therein, including that Siri could be used to make

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appointments, find restaurants, send text messages, learn guitar

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chords to classic rock songs and learn how to tie a tie.

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¶¶ 6-7, 36.

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voice command given by someone who is running.

Id. at ¶¶ 6, 11.

Id. at ¶ 35.

In one video that Apple used to

According to Apple’s website,

Id. at ¶ 40.

See also RJN Ex. 6 (seven

Many of the video advertisements for the iPhone 4S

CCAC

Siri was also shown to understand and respond to a
CCAC ¶ 7.

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As another example, Apple made a television advertisement

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entitled “Road Trip” that showed a couple asking Siri numerous

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questions while traveling to Santa Cruz, California, including
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“Where is the best barbeque in Kansas City?” “Is there a rodeo in

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Amarillo today?” and “How big is the Grand Canyon?”

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In response to the question, “[Are there] any gas stations we can

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walk to?,” Siri immediately answered, “I found two gas stations

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fairly close to you,” and the name and review rating of two gas

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stations displayed on the user’s iPhone 4S screen.

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Similarly, when asked, “What does Orion look like?” Siri responded

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with a map of the Orion constellation and stated, “I found this

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for you.”

Id.

Id. at ¶ 37.

Id.

When asked, “What is the best way to Santa Cruz,

United States District Court
For the Northern District of California

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California?” Siri promptly responded with a map showing a route to

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that city.

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ads-roadtrip (last accessed July 31, 2012).

“Road Trip,” http://www.apple.com/iphone/videos/#tv-

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In another television advertisement broadcast nationwide

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entitled “Rock God,” a guitar player asked Siri numerous questions

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including, “How do I play London Calling?” and “[How do I play]

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Whole Lotta Love?”

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do I play] a B Minor Ninth?” Siri displayed with the proper notes,

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chord and sheet music.

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our band is playing at the garage tonight,” Siri responded, “Here

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is your message to Julie and Kate,” and immediately showed on the

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user’s iPhone 4S screen a message to “Julie, Kate” that read “Our

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band is playing at the garage tonight.”

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CCAC ¶ 38.

Id.

In response to the question “[How

When directed, “Tell Julie and Kate

Id. at ¶ 39.

Apple’s website also touted Siri as a major selling point.

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Id. at ¶ 41.

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users to a welcome screen that stated, “Introducing Siri.

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intelligent assistant that’s there to help.

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to make calls, send texts, set reminders, and more.

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way you talk.

Selecting the “iPhone” tab on the website brought

Just ask.

The

Ask Siri

Just talk the

Siri understands what you say and knows what you
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mean.”

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iPhone 4S Video,” which directed to a video depicting multiple

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demonstrations involving Siri and its capabilities.

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For instance, in response to the request, “Find me an Italian

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restaurant in North Beach,” Siri answered, “Okay, these 25 Italian

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restaurants are in North Beach” and the iPhone 4S user screen

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showed the name and review ratings of twenty-five Italian

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restaurants located in North Beach.

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“Move my meeting with Kelly Altech to 12:00 p.m.”

Id.

That webpage also included a link labeled, “Watch the

Id.

Id. at ¶ 42.

A jogger told Siri,
Id.

Siri

United States District Court
For the Northern District of California

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responded, “Note that you already have a meeting about budgets at

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12 p.m.”

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President of iOS Software, further commented on Siri, stating,

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“It’s like this amazing assistant that listens to you, understands

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you, can answer your questions and can even accomplish tasks for

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you . . .

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the ability to understand what you mean and act on it, that’s the

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breakthrough with Siri.”

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Id.

During the video, Scott Forstall, Senior Vice

A lot of devices can recognize the words you say, but

Id.

Plaintiffs each purchased an iPhone 4S between October 2011

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and January 2012, because they saw and relied upon Apple’s

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representations regarding the Siri feature.

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27.

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Best Buy store in New York, “saw and relied upon Apple’s

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television advertisements and Apple’s representations made about

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Siri during various presentations and on Apple’s website.”

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¶ 20.

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on Apple’s website, “saw and relied upon Apple’s television

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advertisements and Apple’s representations related to Siri on its

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website.”

Id. at ¶¶ 20, 22, 24,

Fazio, a citizen of New York who purchased his iPhone at a

Id. at

Hamagaki, a citizen of California who purchased her iPhone

Id. at ¶ 22.

Balassone, a citizen of New Jersey who
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purchased his iPhone at an Apple store in New Jersey, “relied on

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the statements and interactive demonstrations performed at Apple’s

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October 4, 2011 press conference and other representations.”

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at ¶ 24.

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iPhone at an Apple store in California, saw and “relied on Apple’s

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advertisements showing that Siri would accurately provide

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information based on verbal commands, would permit accurate

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dictation of emails and would substantially shorten and simplify

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research time.”

United States District Court
For the Northern District of California

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Id.

Swartzmann, a citizen of California who purchased his

Id. at ¶ 27.

Plaintiffs allege that they found after purchasing the iPhone

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4S that Siri did not perform as advertised.

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According to Fazio, Siri was unable to answer specific questions.

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Id. at ¶ 21.

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to a certain place, or to locate a store, Siri either did not

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understand what Fazio was asking or, after a very long wait time,

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responded with the wrong answer.

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the fat content between two meals, the location of a children’s

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party venue, information related to the “guided reading” teaching

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method and directions to a doctor’s office located in Brooklyn,

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and Siri was unable to answer Fazio’s questions properly.

Id. at ¶ 20-29.

For instance, when Fazio asked Siri for directions

Id.

Fazio asked Siri to compare

Id.

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Balassone attempted to mirror the commands given to Siri in

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the Apple advertisements, including in the “Rock God” commercial

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described above, but Siri did not answer in the same manner as in

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the commercial.

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“how do you play an A chord?” and Siri answered, “OK, how about a

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web search for ‘how do you plan a quart?’”

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“how do you play a B minor chord?” and Siri responded, “looking

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for B minor chord,” followed by “still thinking,” and eventually

Id. at ¶ 25.

For example, Balassone asked Siri:

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Id.

Balassone asked

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responded, “Sorry, I couldn’t find B minor chord in your music.”

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Id.

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Swartzman also believed that Siri was not performing as

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advertised and that it frequently gave him wrong information or

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failed to respond.

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to use Siri to make phone calls or send emails, and Siri

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repeatedly gave the wrong names and numbers of people that he was

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trying to contact.

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Springs, Siri did not understand what he was asking for.

Id. at ¶ 28.

Id.

For example, Swartzman attempted

When he asked Siri the weather in Palm
Id.

United States District Court
For the Northern District of California

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When Swartzman asked Siri, “When is St Patrick’s Day?” Siri

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responded, “Sorry, I don’t understand ‘When is St Patrick’s Day.’”

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Id.

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Hamagaki had a similar experience.

Id. at ¶ 23.

For

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example, while Siri was able to respond to very general requests,

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such as “find me a gas station” or “find me Thai food,” when asked

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anything more complex, Siri could not come up with an answer.

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Id.

People other than Plaintiffs also found problems with Siri.

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Id. at ¶ 45.

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“Apple’s Siri ‘Rock God’ Commercial: How Accurate Is It, Really?”,

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which was accompanied by a video called, “A Scientific Ex-Siri-

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Ment.”

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Gilbert, repeating every voice command prompt in Apple’s “Rock

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God” commercial word for word.

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responded to only two of seven prompts in the “Rock God”

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commercial on the first try as it did in the advertisements,

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including one response that came after an extreme time lag.

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at ¶ 46.

Id.

The Huffington Post published an article entitled,

The video showed Huffington Post blogger, Jason

Id.

In Gilbert’s video, Siri

Id.

Further, in response to the direction, “Tell Julie and

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Kate our band is playing at the garage tonight,” Siri responded

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with “Are band is playing at the garage tonight.”

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Id.

Most of Apple’s marketing and advertising campaign, including

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its dominant and expansive television advertisements, did not

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mention the word “beta” or the fact that Siri was, “at best, a

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work-in-progress.”

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website,” a page containing “Frequently Asked Questions” about

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Siri, Apple stated “Siri is currently in beta and we’ll continue

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to improve it over time.”

Id. at ¶ 49.

On a webpage “buried in Apple’s

Id. at ¶ 48; RJN, Ex. 2.

Apple also

United States District Court
For the Northern District of California

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noted on several other webpages that Siri is in “beta” without

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elaboration.

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series of links within Apple’s website, including a footnote at

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the bottom of a page, that one would learn that Siri is only a

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work-in-progress.”

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Siri transactions depicted in its television commercials are

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fiction and that actual consumers using actual iPhone 4Ss cannot

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reasonably expect Siri to perform the tasks performed in Apple’s

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commercials.”

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consumers advertisements where Siri acts without complications,

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rather than how Siri actually performs.”

RJN, Exs. 4, 5.

CCAC ¶ 50.

Id. at ¶ 51.

“[I]t is only through following a

“Apple never disclosed that the

“Instead, Apple chose to show

Id.

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Plaintiffs also allege that “recent reports have shown that

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continuous Siri usage dramatically increases an iPhone 4S users’

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monthly data usage and can easily push users over their data

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plans.”

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Id. at ¶ 48.

Plaintiffs seek to represent a class of all persons in the

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United States who purchased an Apple iPhone 4S for use and not for

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resale.

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class members were damaged by Apple’s purported misrepresentation

Id. at ¶ 54.

They allege that they and the putative

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of Siri as “a consistent intelligent verbal assistant” in the

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amount of the purchase price of the iPhone 4S.

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116.

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that they spent purchasing the iPhone 4S while being misled about

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the utility of the iPhone 4S’s Siri feature and would not have

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paid the price they did for the devices if they had not seen and

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relied upon these representations.

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Id. at ¶¶ 109,

Fazio, Balassone and Hamagaki allege that they lost money

Id. at ¶¶ 21, 23, 26.

Plaintiffs allege that “Apple is a California corporation
with its headquarters and principal place of business in

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United States District Court
For the Northern District of California

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Cupertino, California,” and that all critical decisions,

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“including all decisions concerning the marketing and advertising

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of the iPhone 4S’s Siri feature, were made by Apple employees

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located in California.”

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Id. at ¶¶ 29-30.

Plaintiffs assert claims against Apple on behalf of the class

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for (1) violation of California’s Consumer Legal Remedies Act

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(CLRA), Cal. Civil Code. § 1750 et seq., (2) violation of

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California’s False Advertising Law (FAL), Cal. Bus. & Prof. Code

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§ 17500, et seq., (3) violation of California’s Unfair Competition

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Law (UCL), Cal. Bus. & Prof. Code § 17200, et seq., (4) violation

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of the Magnusson-Moss Warranty Act (MMWA), 15 U.S.C. § 2301, et

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seq., (5) breach of express warranty; (6) breach of implied

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warranty of merchantability; (7) intentional misrepresentation;

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(8) negligent misrepresentation; and (9) unjust enrichment.

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Fazio filed his complaint on March 6, 2012 in this district.

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Docket No. 1.

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initiated a separate action in this district.

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On March 26, 2012, Fazio, Balassone and Swartzmann filed a

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stipulation to consolidate the two actions and appoint their

On March 20, 2012, Balassone and Swartzmann

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Case No. 12-1384.

1

attorneys as co-lead interim class counsel.

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Court granted their stipulation on March 29, 2012.

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Docket No. 11.

The

On March 27, 2012, Jones initiated his action against Apple

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in the Central District of California.

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subsequently transferred to this district and related to the

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consolidated cases.

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The Jones action was

LEGAL STANDARD
A complaint must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”

Fed. R.

United States District Court
For the Northern District of California

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

17

favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

20

cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

26

Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

27

F.2d 242, 246-47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the
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In determining whether

1

complaint could be amended to cure the defect requiring dismissal

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“without contradicting any of the allegations of [the] original

3

complaint.”

4

Cir. 1990).

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

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6

DISCUSSION
I. Apple’s Request for Judicial Notice (RJN)

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Although courts generally cannot consider documentary

8

evidence on a motion to dismiss, doing so is appropriate when the

9

pleadings refer to the documents, their authenticity is not in

United States District Court
For the Northern District of California

10

question and there are no disputes over their relevance.

11

Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010);

12

Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (holding that

13

courts may properly consider documents “whose contents are alleged

14

in a complaint and whose authenticity no party questions, but

15

which are not physically attached to the [plaintiff’s] pleading”).

16

This includes “internet pages as it does . . . printed material.”

17

Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

Coto

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Apple asks the Court to take judicial notice of nine webpages

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or documents from its website, because “the Complaint specifically

20

refers to and relies upon alleged representations on Apple’s

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website (www.apple.com).”

22

Plaintiffs dispute that contents of the website are alleged in the

23

CCAC or the authenticity of the documents submitted by Apple.

24

Only Plaintiff Jones opposes the request for judicial notice; the

25

remaining Plaintiffs do not oppose it.

26

Mot. at 4 n.1; see RJN ¶¶ 1-9.

No

Most of the webpages or documents of which Apple asks the

27

Court to take judicial notice are specifically referred to in the

28

CACC.

See RJN ¶¶ 1-4, 6-8, Exs. 1 (CCAC ¶ 34 & n.2), 2 (CCAC
12

1

¶¶ 48, 50 & n.14, 16), 3 (CCAC ¶ 24), 4 (CCAC ¶ 50 & n.15), 6

2

(CCAC ¶¶ 37-40 & n.3-6), 7 (CCAC ¶ 62(h) & n.18) and 8 (CCAC

3

¶ 72).

4

these documents.

5

The Court grants the request for judicial notice as to

Apple also requests that the Court take judicial notice of
Exhibit 5 to the declaration of Scott Maier, which contains

7

printouts from the “Siri Features Webpage.”

8

does not directly refer to this webpage.

9

CCAC “refers to or relies on webpages on Apple’s website that

10
United States District Court
For the Northern District of California

6

contain information about the features of the iPhone 4s or its

11

Siri software” in particular paragraphs.

12

paragraphs that Apple cites refer to other specific webpages on

13

its website and do not refer to the “Siri Features Webpage.”

14

e.g., CCAC ¶¶ 41, 48, 50.

15

RJN ¶ 5.

The CCAC

Apple argues that the

Id.

However, the

See,

Apple contends that the Court should nevertheless take

16

judicial notice of this page because it is “necessary to provide a

17

complete picture of the representations challenged in the

18

Complaint.”

19

doctrine “seeks to prevent . . . the situation in which a

20

plaintiff is able to maintain a claim of fraud by extracting an

21

isolated statement from a document and placing it in the

22

complaint, even though if the statement were examined in the full

23

context of the document, it would be clear that the statement was

24

not fraudulent.”

25

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).

26

Reply at 9.

It argues that the judicial notice

RJN at 3 (quoting In re Burlington Coat Factory

In Knievel, the Ninth Circuit considered whether, on a motion

27

to dismiss, a court could properly consider portions of a website

28

other than those specifically alleged in the complaint.
13

393 F.3d

1

at 1076.

2

complaint a particular picture and caption from the defendant’s

3

website that they alleged was defamatory.

4

found that the court could properly consider the content of web

5

pages that a user would have had to view in order to access the

6

photograph.

7

reader must absorb a printed statement in the context of the media

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in which it appears, a computer user necessarily views web pages

9

in the context of the links through which the user accessed those

United States District Court
For the Northern District of California

10
11

pages.”

In that case, the plaintiffs had attached to their

Id.

Id.

The Ninth Circuit

In so holding, the court noted that, like “a

Id.

Apple makes no showing that the Siri Features Webpage is a

12

page that must be accessed in order to reach those pages whose

13

contents are specifically alleged in the CCAC or that a user who

14

went to those pages would necessarily see the Siri Features

15

Webpage.

16

allegations “is flatly contradicted by multiple other statements

17

available on Apple’s website” including the Siri Features Webpage,

18

this is not a proper reason to take judicial notice of a document

19

at the motion to dismiss stage.

20

to take judicial notice of the Siri Features Webpage.

21

Although Apple argues that one of Plaintiffs’

Accordingly, the Court declines

Finally, Apple also requests that the Court take judicial

22

notice of Exhibit 9 to the declaration of Scott Maier, which

23

contains the one-year hardware warranty for the iPhone 4S.

24

contends that the Court should take judicial notice of this

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warranty, because the CCAC “refers to or relies on alleged

26

breaches of express warranties.”

27

not allege that this particular express warranty was breached or

RJN ¶ 9.

28
14

Apple

However, the CCAC does

1

directly refer to it.

2

judicial notice of this document.

3

II. Standing of out-of-state Plaintiffs

4

Accordingly, the Court declines to take

Apple contends Fazio and Balassone lack standing to pursue

5

the claims under the UCL, FAL and CLRA, because they are not

6

California residents and did not purchase their devices in

7

California.

8

analysis compels the conclusion that California law should not be

9

applied to their claims.

United States District Court
For the Northern District of California

10

In its reply brief, Apple argues that choice-of-law

Apple “conflate[s] two issues: the extraterritorial

11

application of California consumer protection laws (or the ability

12

of a nonresident plaintiff to assert a claim under California

13

law), and choice-of-law analysis (or a determination that, based

14

on policy reasons, non-forum law should apply).”

15

Hyland’s, Inc., 2012 U.S. Dist. LEXIS 91393, at *9 (C.D. Cal.).

16

California courts have concluded that “state statutory remedies

17

may be invoked by out-of-state parties when they are harmed by

18

wrongful conduct occurring in California.”

19

v. Superior Ct., 72 Cal. App. 4th 214, 224-225 (1999).

20

have alleged that their injuries were caused by Apple’s wrongful

21

conduct in false advertising that originated in California.

22

Plaintiffs have alleged that Apple’s purportedly misleading

23

marketing, promotional activities and literature were coordinated

24

at, emanate from and are developed at its California headquarters,

25

and that all “critical decisions” regarding marketing and

26

advertising were made within the state.

27

California’s presumption against the extraterritorial application

28

of its statutes therefore does not bar the claims of the out-of15

Forcellati v.

Norwest Mortg., Inc.
Plaintiffs

Here,

CCAC ¶¶ 30, 62.

1

state Plaintiffs, because this principle is “one against an intent

2

to encompass conduct occurring in a foreign jurisdiction in the

3

prohibitions and remedies of a domestic statute.”

4

Multimedia Sys., Inc. v. Superior Ct., 19 Cal. 4th 1036, 1060 n.20

5

(1999) (emphasis in original).

6

Diamond

Other courts have found allegations such as those made here

7

to be sufficient to allow an out-of-state plaintiff to seek

8

recovery under California law.

9

Group, Inc., 76 F.R.D. 618 (N.D. Cal. 2011), the Washington

For example, in Wang v. OCZ Tech.

United States District Court
For the Northern District of California

10

plaintiff alleged that the “misleading marketing, advertising and

11

product information” was “conceived, reviewed or otherwise

12

controlled” from the defendant’s California headquarters, that its

13

executive offices are in California and that it had selected

14

California as its forum for “website-based complaints.”

15

630.

16

FAL and CLRA claims at the motion to dismiss stage.

17

Similarly, in In re Mattel, 588 F. Supp. 2d 1111 (C.D. Cal. 2008),

18

the court held that non-California plaintiffs could assert

19

California state law causes of action against the defendant,

20

Mattel, where plaintiffs complained of “misrepresentations made in

21

reports, company statements, and advertising that are reasonably

22

likely to have come from or been approved by Mattel corporate

23

headquarters in California.”

24

Random Access Memory (SRAM) Antitrust Litig., 580 F. Supp. 2d 896,

25

905 (N.D. Cal. 2008) (“If Plaintiffs can allege specific

26

California conduct underlying out-of-state [indirect purchaser]

27

Plaintiffs’ claims, they may continue to assert California state

28

law claims on behalf of those Plaintiffs. . . . Defendants will

Id. at

The court found these allegations sufficient to support UCL,
Id.

Id. at 1119; see also In re Static

16

1

have an opportunity to raise this issue again when Plaintiffs move

2

for class certification.”).

3

Apple’s citation of In re Apple & AT&T iPad Unlimited Data

4

Plan Litig., 802 F. Supp. 2d 1070, 1076 (N.D. Cal. 2011) does not

5

compel a contrary result.

6

California’s presumption against extra-territoriality and the fact

7

that AT&T’s “choice of law provision in its Terms of Service

8

selects the law of each consumer’s respective home state” barred

9

the claims of the non-California plaintiffs.

In that case, the court concluded that

Id. at 1076.

Here,

United States District Court
For the Northern District of California

10

the alleged harmful conduct took place at least partially within

11

California, and Apple does not argue that there is a choice of law

12

provision that selects another state in any agreement between

13

itself and consumers.

14

Apple relies heavily on the Ninth Circuit’s decision in Mazza

15

v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012),

16

to argue that the non-California Plaintiffs lack standing.

17

Mazza, the Ninth Circuit reviewed the district court’s decision to

18

grant class certification to a nationwide class to prosecute

19

claims under the FAL, UCL and CLRA and for unjust enrichment.

20

at 587-88.

21

“misrepresented and concealed material information in connection

22

with the marketing and sale” of certain vehicles.

23

After applying a detailed choice-of-law analysis, the Ninth

24

Circuit vacated the certification order because, under the facts

25

of that case, “each class member’s consumer protection claim

26

should be governed by the consumer protection laws of the

27

jurisdiction in which the transaction took place.”

28

The court expressed no opinion whether, on remand, it would be

In

Id.

The plaintiffs alleged that the defendant

17

Id. at 587.

Id. at 594.

1

appropriate to “certify a smaller class containing only those who

2

purchased or leased” their vehicles “in California, or to certify

3

a class with members more broadly but with subclasses for class

4

members in different states.”

5

not find the out-of-state class members lacked standing.

6

Id.

Notably, the Ninth Circuit did

For several reasons, Mazza does not support a finding that

7

the out-of-state Plaintiffs lack standing.

8

decision, the court did not discuss whether the individual named

9

plaintiffs may assert a claim against a defendant under California

First, in that

United States District Court
For the Northern District of California

10

law.

11

California consumer protection laws and the consumer protection

12

laws of other states preclude class certification.”

13

2012 U.S. Dist. LEXIS 91393, at *12.

14

currently at the pleading stage and “[w]hether or not

15

certification on a nationwide basis is appropriate in this case is

16

not an issue that is currently before this Court.”

17

Hylands, Inc., 2012 WL 1656750, at *2 (C.D. Cal.) (emphasis in

18

original); see also Donohue v. Apple, Inc., 2012 WL 1657119, at *7

19

(N.D. Cal.) (“Although Mazza may influence the decision whether to

20

certify the proposed class and subclass, such a determination is

21

premature” at the pleading stage.); Forcellati, 2012 U.S. Dist.

22

LEXIS 91393, at *6 (“Mazza (and nearly every other case cited by

23

Defendants) undertook a class-wide choice-of-law analysis at the

24

class certification stage, rather than the pleading stage at which

25

we find ourselves.”).

26

not the same thing as standing.”

27

1656750, at *2 (C.D. Cal.).

28

plaintiff suffered an injury in fact . . . (2) the injury is

Instead, it addressed whether “differences between

Forcellati,

However, this case is

Allen v.

As Plaintiffs point out, “choice of law is
Allen v. Hylands, Inc., 2012 WL

Standing “requires that (1) the

18

1

fairly traceable to the challenged conduct, and (3) the injury is

2

likely to be redressed by a favorable decision.”

3

at 594 (internal quotations omitted).

4

the out-of-state Plaintiffs have plead these elements.

5

Mazza, 666 F.3d

Apple does not dispute that

Second, Mazza did not “explicitly foreclose[] any argument

6

that California’s consumer protection statutes . . . can be

7

applied to a nationwide class,” as Apple contends.

8

Apple argues that the Ninth Circuit found material differences

9

between New York, New Jersey and California consumer protection

Mot. at 10.

United States District Court
For the Northern District of California

10

laws and that this precludes application of California law to the

11

claims of out-of-state plaintiffs in all consumer cases.

12

the “California Supreme Court has expressly held that California’s

13

choice-of-law analysis must be conducted on a case-by-case basis

14

because it requires analyzing various states’ laws ‘under the

15

circumstances of the particular case’ and given ‘the particular

16

[legal] issue in question.’”

17

540, 545 (C.D. Cal. 2012) (quoting Kearney v. Salomon Smith

18

Barney, 39 Cal. 4th 95, 107–08 (2006)).

19

Circuit “acknowledged that California law requires the defendant

20

to show that differences in state law are ‘material,’ that is,

21

they ‘make a difference in this litigation,’” and expressly stated

22

that its holding applied to the “facts and circumstances” of the

23

case before it.

24

at 590-94).

25

rejected the argument that Apple makes here, concluding that Mazza

26

did not allow the defendants to substitute “Mazza’s holding in

27

lieu of [their] own careful analysis of choice-of-law rules as

28

applied to this particular case.”

However,

Bruno v. Eckhart Corp., 280 F.R.D.

In Mazza, the Ninth

Bruno, 280 F.R.D at 547 (quoting Mazza, 666 F.3d

Following this ruling, various district courts have

19

Id. at 547 (nationwide class);

1

see also Forcellati, 2012 U.S. Dist. LEXIS 91393, at *5-7.

2

have done so in cases that included states at issue in Mazza.

3

Forcellati, 2012 U.S. Dist. LEXIS 91393, at *5-7 (“Until the

4

Parties have explored the facts in this case, it would be

5

premature to speculate about whether the differences in various

6

states’ consumer protection laws are material in this case.”)

7

(nationwide class, New Jersey named plaintiff).

8

that the Ninth Circuit found differences between the consumer

9

protection laws of the relevant states to be material in Mazza and

They
See

Apple argues only

United States District Court
For the Northern District of California

10

fails to address how any such differences would also be material

11

to the facts of the instant litigation.

12

Accordingly, the Court declines to find that Fazio and

13

Balassone lack standing to prosecute the state law claims at the

14

pleading stage.

15

III. Allegations of false and misleading statements

16
17

A. Rule 9(b)
Apple contends that Plaintiffs have not sufficiently plead

18

any specific false and misleading statements, including what about

19

the statements was false or misleading.

20

specific statements that Plaintiffs have identified are not

21

actionable.

22

CLRA, FAL and misrepresentation claims be dismissed for failure to

23

comply with Rule 9(b).

24

applies to these claims, but do argue that they have sufficiently

25

alleged their fraud claims.

26

It also argues that all

On this basis, Apple requests that Plaintiffs’ UCL,

Plaintiffs do not dispute that Rule 9(b)

Claims of deceptive labeling under these California statutes

27

are evaluated by whether a “reasonable consumer” would be likely

28

to be deceived.

Williams v. Gerber Prods. Co., 552 F.3d 934, 938
20

1

(9th Cir. 2008) (citing Freeman v. Time, Inc., 68 F.3d 285, 289

2

(9th Cir. 1995)).

3

misrepresentation similarly require that the consumer justifiably

4

rely on a representation that is false or subject to a misleading

5

omission.

6

4th 979, 990 (2004) (common law fraud); Century Sur. Co. v. Crosby

7

Ins., Inc., 124 Cal. App. 4th 116, 129 (2004) (negligent

8

misrepresentation).

Common law claims for fraud and negligent

Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.

“In all averments of fraud or mistake, the circumstances

10
United States District Court
For the Northern District of California

9

constituting fraud or mistake shall be stated with particularity.”

11

Fed. R. Civ. P. 9(b).

12

of Civil Procedure apply in federal court, ‘irrespective of the

13

source of the subject matter jurisdiction, and irrespective of

14

whether the substantive law at issue is state or federal.’”

15

Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009)

16

(citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th

17

Cir. 2003)).

18

defendants notice of the particular misconduct which is alleged to

19

constitute the fraud charged so that they can defend against the

20

charge and not just deny that they have done anything wrong.”

21

Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).

22

of the time, place and nature of the alleged fraudulent activities

23

are sufficient, id. at 735, provided the plaintiff sets forth

24

“what is false or misleading about a statement, and why it is

25

false.”

26

Litig.), 42 F.3d 1541, 1548 (9th Cir. 1994).

27
28

“It is well-settled that the Federal Rules

The allegations must be “specific enough to give

Statements

Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec.

In Kearns, the Ninth Circuit concluded that the plaintiff,
who claimed that Ford engaged in a fraudulent course of conduct in
21

1

making false and misleading statements in its national commercials

2

regarding its “Certified Pre–Owned” vehicles to induce purchasers

3

to pay extra for such vehicles, printed sales materials and

4

statements of sales personnel, failed to meet the Rule 9(b)

5

standard for alleging fraud with specificity.

6

1126.

7

In so holding, the court stated,
Kearns fails to allege in any of his complaints the
particular circumstances surrounding such
representations. Nowhere in the TAC does Kearns specify
what the television advertisements or other sales
material specifically stated. Nor did Kearns specify
when he was exposed to them or which ones he found
material. Kearns also failed to specify which sales
material he relied upon in making his decision to buy a
CPO vehicle. Kearns does allege that he was
specifically told “CPO vehicles were the best used
vehicles available as they were individually hand-picked
and rigorously inspected used vehicles with a Fordbacked extended warranty.” Kearns does not, however,
specify who made this statement or when this statement
was made. Kearns failed to articulate the who, what,
when, where, and how of the misconduct alleged. The
pleading of these neutral facts fails to give Ford the
opportunity to respond to the alleged misconduct.

8
9
10
United States District Court
For the Northern District of California

567 F.3d at 1122,

11
12
13
14
15
16

Id. at 1126.
17
Plaintiffs’ claims here are also based on a fraudulent course
18
of conduct.

Unlike in Kearns, Plaintiffs allege the contents of

19
some specific pieces of advertising that Apple created,
20
particularly the contents of certain television commercials
21
released between October 4, 2011 and the time that the complaint
22
was filed, the press release and statements on the website since
23
then.

Plaintiffs also allege that these advertisements were

24
“fundamentally and designedly false and misleading,” and that Siri
25
“does not perform as advertised.”

CCAC ¶ 11.

They state that the

26
commercials show tasks “done with ease with the assistance of the
27
iPhone 4S’s Siri feature; a represented functionality contrary to
28
22

1

the actual operating results and performance of Siri.”

2

¶ 7.

3

Id. at

However, Apple is correct that Plaintiffs have not alleged

4

sufficiently how these statements were misrepresentative or

5

fraudulent, and how Siri failed to perform as advertised.

6

example, Plaintiffs do not make clear in the CCAC whether their

7

theory is that the advertisements were misleading, because Siri

8

never responds to questions or is always inaccurate, does so more

9

slowly than shown in the ads, uses more data than advertised or is

For

United States District Court
For the Northern District of California

10

less consistent than shown in the ads.

11

represented that their theory was “that it does answer some

12

questions some of the time, but it doesn’t perform in the manner

13

in which Apple represents in the commercial that it will perform.”

14

Docket No. 63, 8:1-4.

15

allege sufficiently the “how” of the purported misrepresentations.

16

They have not explained what exactly Apple led consumers to

17

believe in the commercials about Siri’s performance, through what

18

particular statements, nor have they stated what about these

19

representations was in fact false.

20

precisely how Siri failed to meet the representations that they

21

claim Apple made, what the truth about Siri’s performance actually

22

was and how Apple knew or should have known that these

23

representations were false.

24

the opportunity to respond to the allegations of misconduct that

25

Plaintiffs make.

26

At the hearing, they

In summary, Plaintiffs have failed to

They have not specified

These deficiencies deprive Apple of

Accordingly, the Court GRANTS Apple’s motion to dismiss the

27

UCL, CLRA, FAL and misrepresentation claims for failure to comply

28

with Rule 9(b).

Plaintiffs are granted leave to remedy the
23

1

deficiencies identified herein, provided they are able to do so

2

truthfully.

3

B. Selective reading

4

Apple also alleges that Plaintiffs base their claims of

5

deception on a selective reading of the advertising and that, when

6

read in context, it has adequately disclosed Siri’s beta status.

7

Plaintiffs respond that the disclosures do not appear in any

8

television commercial, are in hard-to-find locations on only some

9

webpages and press releases, are in small font and disclose simply

United States District Court
For the Northern District of California

10
11

that Siri is in “beta” without defining the term.
Apple relies on Freeman v. Time, Inc., 68 F.3d 285 (9th Cir.

12

1995), in which the Ninth Circuit upheld the district court’s

13

dismissal of UCL and FAL claims, rejecting as unpersuasive the

14

plaintiff’s argument that readers will read only the large print

15

on a promotion document and “ignore the qualifying language in

16

small print.”

17
18
19
20
21
22

Id. at 289.

In so holding, the court explained,

The promotions expressly and repeatedly state the
conditions which must be met in order to win. None of
the qualifying language is hidden or unreadably small.
The qualifying language appears immediately next to the
representations it qualifies and no reasonable reader
could ignore it. Any persons who thought that they had
won the sweepstakes would be put on notice that this was
not guaranteed simply by doing sufficient reading to
comply with the instructions for entering the
sweepstakes.
Id. at 289-90.

Therefore, the court concluded, “Any ambiguity

23
that [the plaintiff] would read into any particular statement is
24
dispelled by the promotion as a whole.”

Id. at 290.

25
Here, however, the commercials themselves do not disclose
26
that Siri was in beta or otherwise unfinished.

Some of the pages

27
on the website, but not all, do disclose that Siri is in beta.
28
24

1

Further, although Apple did sometimes put an orange label with the

2

word next to Siri on the website, frequently the disclosure that

3

Siri is in beta is at the bottom of the page in much smaller font,

4

separated from the primary discussion of Siri’s features.

5

not “immediately next to the representations it qualifies,” as in

6

the Freeman case.

7

qualifications as a defense on the facts, these qualifications are

8

not sufficient to make the finding that it seeks as a matter of

9

law upon a motion to dismiss.

United States District Court
For the Northern District of California

10
11

This is

Although Apple may be able to offer these

C. Puffery
Apple argues that many of the statements cited in the CCAC

12

are non-actionable puffery.

13

Plaintiffs’ allegations that Siri was described as “the best

14

iPhone yet,” that Apple marketed Siri in a video stating, “How do

15

you improve on something so extraordinary? Now we’re introducing

16

Siri,” and that Siri is described as an “amazing assistant,”

17

“amazing,” and “impressive.”

18

Apple specifically points to

Mot. at 17.

Plaintiffs respond that they are not basing their claims on

19

Apple’s statements that Siri was “amazing,” “impressive” or an

20

improvement to the previous iPhone.

21

their claims are based on specific representations of how Siri was

22

supposed to function and that Siri did not in fact work as shown.

23

Instead, they argue that

“Advertising which merely states in general terms that one

24

product is superior is not actionable.”

25

Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246 (9th

26

Cir. 1990) (internal quotations omitted).

27

misdescriptions of specific or absolute characteristics of a

28

product are actionable.”

Cook, Perkiss & Liehe,

“However,

Id. (internal quotations omitted).
25

1

Apple is correct that words like “amazing” and “impressive”

2

are “generalized, vague and unspecific assertions, constituting

3

mere ‘puffery’ upon which a reasonable consumer could not rely.”

4

Glen Holly Entm’t, Inc. v. Tektronix Inc., 352 F.3d 367, 379 (9th

5

Cir. 2003).

6

Plaintiffs’ claims or be considered when determining if they have,

7

for example, met Rule 9(b)’s specificity requirement or properly

8

alleged reliance.

9

which Siri operated can be used to show “misdescriptions of

These representations thus cannot form the basis of

However, Apple’s portrayals of the ways in

United States District Court
For the Northern District of California

10

specific or absolute characteristics” of the claimed features and

11

thus can be the basis of these claims.

12

III. Reliance

13

A plaintiff seeking to prosecute a UCL and FAL claim is

14

required to plead actual reliance on the allegedly deceptive or

15

misleading statements.

16

310, 326 (2011).

17

“caus[e] or result[] in some sort of damage.”

Meyer v. Sprint

18

Spectrum, L.P., 45 Cal. 4th 634, 641 (2009).

Common law fraud

19

requires that the victim show reasonable reliance on the allegedly

20

deceptive representation.

21

298, 312 (2009).

22

Kwikset v. Superior Court, 51 Cal. 4th

The CLRA imposes a requirement that a violation

In re Tobacco II Cases, 46 Cal. 4th

Apple argues that Plaintiffs did not specify which particular

23

advertisements or representations each was exposed to and relied

24

upon.

25

not for any Plaintiff, except Balassone in part.

26

allege that Balassone relied on “the statements and interactive

27

demonstrations performed at Apple’s October 4, 2011 press

28

conference,” but they also say that he relied upon “other

Although Plaintiffs state that they did do this, they did

26

Plaintiffs

1

representations,” without saying which others.

2

Plaintiffs allege that Fazio relied upon “Apple’s television

3

advertisements and Apple’s representations made about Siri during

4

various presentations and on Apple’s website,” Hamagaki relied

5

upon “Apple’s television advertisements and Apple’s

6

representations related to Siri on its website,” and that

7

Swartzman relied upon “Apple’s advertisements showing that Siri

8

would accurately provide information based on verbal commands,

9

would permit accurate dictation of emails and would substantially

CCAC ¶ 24.1

United States District Court
For the Northern District of California

10

shorten and simplify research time.”

11

However, they do not specify particular commercials, presentations

12

or portions of the website.

13

ones that Plaintiffs saw and relied upon were those whose contents

14

were alleged elsewhere in the CCAC.

15

Id. at ¶¶ 20, 22, 27.

They also do not state whether the

Plaintiffs also respond that, because the misrepresentations

16

“were part of a consistent, broad marketing campaign by Apple over

17

time,” they were “not required to specify each and every time they

18

were exposed to one of Apple’s misrepresentations.”

19

In support of their argument, Plaintiffs rely on Morgan v. AT&T

20

Wireless Services, Inc., 177 Cal. App. 4th 1235, 1256 (2009),

21

which in turn follows the California Supreme Court’s decision in

22

In re Tobacco II.

Opp. at 12.

This Court has previously found that Morgan and

23
24
25
26
27
28

1

The Court notes that, although Plaintiffs plead that
“Balassone attempted to mirror the command[s] given to Siri in the
Apple advertisements” and that he “asked Siri to show him guitar
chords as shown in Apple’s ‘Rock God’ television advertisements,”
CCAC ¶ 25, they did not allege that he had relied on any
particular advertisement, including the Rock God commercial when
he purchased the iPhone 4S.
27

1

In re Tobacco II do not support relaxing of the pleading

2

requirements under Rule 9(b).

3

Consumer Companies, Inc., 2010 WL 3448531 (N.D. Cal.), the Court

4

stated that, in In re Tobacco II, in “addressing the allegations

5

necessary to plead reliance to establish standing to bring a UCL

6

claim, the California Supreme Court stated that ‘where . . . a

7

plaintiff alleges exposure to a long-term advertising campaign,

8

the plaintiff is not required to plead with an unrealistic degree

9

of specificity that the plaintiff relied on particular

In Herrington v. Johnson & Johnson

United States District Court
For the Northern District of California

10

advertisements or statements.’”

11

finding that the plaintiffs in that case did not allege exposure

12

to the advertising campaign itself, the Court explained that “In

13

re Tobacco II merely provides that to establish UCL standing,

14

reliance need not be proved through exposure to particular

15

advertisements; the case does not stand for, nor could it, a

16

general relaxation of the pleading requirements under Rule 9(b).”

17

Id. (citing In re Actimmune Mktg. Litig., 2009 WL 3740648, at *13

18

(N.D. Cal.)).

19

U.S. Dist. LEXIS 51094 (N.D. Cal.), the Court rejected the

20

plaintiff’s reliance on In re Tobacco II, because she “failed to

21

allege that Defendant’s advertising campaign approached the

22

longevity and pervasiveness of the marketing at issue in Tobacco

23

II,” which lasted for decades.

24

allegation was of a press release and conference that took place

25

on October 4, 2011.

26

when the CCAC was filed.

27

alleged that the campaign here was comparable to that at issue in

28

Tobacco II.

Id. at *8.

In addition to

In addition, in Delacruz v. Cytosport, Inc., 2012

Id. at *9.

Here, the earliest

The campaign was only about six months old
As in Delacruz, Plaintiffs have not

28

1

Plaintiffs’ reliance on Ticketmaster LLC v. RMG Technologies,

2

2007 WL 2989504 (C.D. Cal.), is also misplaced.

3

plaintiff alleged that the defendant used “automated devices to

4

unlawfully enter into and navigate through Plaintiff’s website,

5

ticketmaster.com, and improperly purchase large quantities of

6

tickets, circumventing security measures intended to prevent

7

automated purchases and violating the website’s Terms of Use.”

8

Id. at *1.

9

defendant made a false promise to abide by the plaintiff’s terms

In that case, the

The plaintiff brought suit alleging that “the

United States District Court
For the Northern District of California

10

of use every time it used the plaintiff’s website.”

11

The court found that the plaintiff did not have to separately set

12

out each of these thousands of individual, identical instances of

13

fraud over the multi-year time period covered by the complaint,

14

when it had sufficiently identified which statements were

15

misleading, why, who was involved and the time period of the

16

repeated misrepresentations.

17

all materially identical.

18

Id.

Id. at *3.

Here, the transactions were not

Accordingly, the Court grants Apple’s motion to dismiss the

19

UCL, FAL, CLRA and common law fraud claims.

20

granted leave to amend to allege with specificity which

21

commercials or other misleading advertisements they each relied

22

upon in purchasing their devices.

23

IV. CLRA claim

Plaintiffs are

24

The CLRA imposes liability for “unfair methods of competition

25

and unfair or deceptive acts or practices undertaken by any person

26

in a transaction intended to result or which results in the sale

27

or lease of goods or services to any consumer.”

28

§ 1770(a).

Cal. Civ. Code

Such unlawful conduct includes “representing that
29

1

goods or services have . . . characteristics[,] . . . uses,

2

benefits, or qualities which they do not have,” “representing that

3

goods or services are of a particular standard, quality, or grade

4

. . . if they are of another,” “advertising goods or services with

5

intent not to sell them as advertised,” and “representing that the

6

subject of a transaction has been supplied in accordance with a

7

previous representation when it has not.”

8

(9) and (16).

9

Id. §§ 1170(a)(5), (7),

Apple does not dispute that the iPhone 4S is a good within

United States District Court
For the Northern District of California

10

the meaning of the CLRA.

11

CLRA claim fails as a matter of law because Siri itself is not a

12

good or service.

13

claims is the iPhone 4S itself and that Siri is a nonseverable

14

component thereof.

15

to be analyzed by itself, it should be considered a service.

16

Instead, Apple contends that Plaintiffs’

Plaintiffs respond that the subject of their

Plaintiffs also argue that, even if Siri were

Apple contends that the CCAC “describes and attacks only

17

Apple’s purported representations regarding the iPhone 4S’s Siri

18

software, and that Plaintiffs’ claims relate exclusively to the

19

Siri software--not to the iPhone 4S.”

20

arguments, however, misconstrue Plaintiffs’ CLRA claim.

Reply at 20.

Apple’s

21

Plaintiffs alleged throughout the CCAC that Siri was a

22

“feature” of the iPhone 4S, that it was in fact the primary

23

distinction between the iPhone 4S and the earlier iPhone 4 and

24

that they would not paid the price that they did for the iPhone 4S

25

had it not been for Apple’s portrayals of how that feature worked.

26

See, e.g., CCAC ¶¶ 4-16.

27

CLRA claim that, among other things, Apple represented that the

28

iPhone 4S--not Siri--had characteristics and features that it did

Plaintiffs specifically plead in the

30

1

not, that the iPhone 4S--not Siri--was of a particular standard,

2

quality or grade, although it was not, and that Apple advertised

3

the iPhone 4S--not Siri--with intent not to sell it as advertised.

4

Id. at ¶ 68.

5

Apple primarily relies upon three cases in which district

6

courts in the Ninth Circuit have found that software was not a

7

good or service within the meaning of the CLRA.

8

McAfee, 2010 U.S. Dist. LEXIS 106600, at *19 (N.D. Cal.); In re

9

iPhone Application Litig., 2011 U.S. Dist. LEXIS 106865, at *33

See Ferrington v.

United States District Court
For the Northern District of California

10

(N.D. Cal.); Wofford v. Apple Inc., 2011 U.S. Dist. LEXIS 129852,

11

at *6-7 (S.D. Cal.).

12

However, these cases are distinguishable.

Plaintiffs’ CLRA

13

claim is premised on the purchase of the iPhone 4S itself, of

14

which Siri is alleged to be a feature.

15

cases, the CLRA claim is not based on the downloading or purchase

16

of software.

17

re iPhone Application Litig., 844 F. Supp. 2d 1040 (N.D. Cal.

18

2012), in discussing a claim related to a different feature of the

19

iPhone, “the gravamen of the CLRA claim . . . is not that free

20

apps downloaded by Plaintiffs were deficient, but rather that the

21

iPhones (a ‘good’ covered by the CLRA) purchased by the class

22

members did not perform as promised based on a specific

23

functionality of the device.”

24

thus arises out of the sale of a good, and not the downloading of

25

free software.”

26

Unlike Apple’s cited

As explained by another court in this district in In

Id. at 1071.

“Plaintiffs’ claim

Id.

Similarly, in the present case, Plaintiffs’ CLRA claim is

27

based on the theory that a specific function of the iPhone 4S did

28

not perform as advertised.

Accordingly, because Plaintiffs have
31

1

plead that the good at issue here was the iPhone 4S, the Court

2

denies Apple’s motion to dismiss this claim on this basis.

3

V. Breach of express warranty

4

To plead a claim for breach of express warranty under

5

California law, Plaintiffs must allege “that the seller: ‘(1) made

6

an affirmation of fact or promise or provided a description of its

7

goods; (2) the promise or description formed the basis of the

8

bargain; (3) the express warranty was breached; and (4) the breach

9

caused injury to the plaintiff.’”

Bilodeau v. McAfee, Inc., 2013

United States District Court
For the Northern District of California

10

U.S. Dist. LEXIS 89226, at *38 (N.D. Cal.) (citation omitted).

11

addition, they must plead that, “within a reasonable time after he

12

or she discovers or should have discovered any breach,” they

13

notified Apple of the breach.

14

buyer’s failure to comply with the notice requirement results

15

being “barred from any remedy.”

Cal. Com. Code § 2607(3)(A).

In

A

Id.

16

A. Notice

17

“To avoid dismissal of a breach of contract or breach of

18

warranty claim in California, ‘[a] buyer must plead that notice of

19

the alleged breach was provided to the seller within a reasonable

20

time after discovery of the breach.’”

21

656 F.3d 925, 932 (9th Cir. 2011) (quoting Stearns v. Select

22

Comfort Retail Corp., 763 F. Supp. 2d 1128, 1142 (N.D. Cal. 2010))

23

(formatting in original).

24

is to allow the breaching party to cure the breach and thereby

25

avoid the necessity of litigating the matter in court.”

26

(citing Cardinal Health 301, Inc. v. Tyco Elecs. Corp., 169 Cal.

27

App. 4th 116, 135 (2008)).

Alvarez v. Chevron Corp.,

“The purpose of giving notice of breach

Id.

To comport with the objectives of the

28
32

1

notice requirement, the notice must be served prior to service of

2

the complaint and not simultaneously with it.

3

Id. at 932-33.

In their express warranty claim in the CCAC, Plaintiffs

4

allege that “all conditions precedent to Defendant’s liability

5

under this express contract, including notice, as described above,

6

have been performed by Plaintiffs and the Class.”

7

Elsewhere in the CCAC, Plaintiffs allege that, on March 6, 2012,

8

the same date on which he filed his original complaint, Fazio sent

9

a letter to Apple detailing purported breaches of the CLRA.

CCAC ¶ 110.

Id.

United States District Court
For the Northern District of California

10

at ¶ 72.

11

same time Fazio’s case was initiated, the letter cannot serve as

12

notice of the breach of the express warranty, pursuant to the

13

Ninth Circuit’s holding in Alvarez.

14

As Apple argues, because this letter was served at the

Plaintiffs respond that Swartzman and Balassone sent Apple a

15

letter pursuant to section 2607 on March 16, 2012, four days

16

before their complaint was filed on March 20, 2012, Germershausen

17

Decl., Ex. A, and that Jones sent Apple a similar letter on March

18

23, 2012, four days before his complaint was filed on March 27,

19

2012, Bower Decl., Ex. A.

20

these letters were not alleged in the CCAC or incorporated therein

21

by reference, and Plaintiffs have not requested that the Court

22

take judicial notice of these letters.

However, as Apple has pointed out,

23

Plaintiffs argue that the notice requirement was satisfied

24

nonetheless because they alleged in the CCAC that “Apple was on

25

notice of the defects in Siri from numerous media outlets

26

reporting on Siri’s failures.”

27

However, Plaintiffs do not offer any cases in which notice from

28

media outlets was held to meet the statutory notice requirement.

Opp. at 20 (citing CCAC ¶¶ 45-47).

33

1

Plaintiffs rely only on Metowski v. Traid Corp. 28 Cal. App. 3d

2

332 (1972), in which the California Court of Appeal held the

3

plaintiffs could maintain a class action on their breach of

4

express warranty claims.

5

was not appropriate because timely notice of the breach of

6

warranty could “be proved only by testimony from the individual

7

purchasers.”

8

court noted that, where “merchandise was sold under circumstances

9

which indicate that the seller acted in bad faith and was aware of

Id. at 340.

The defendants claimed a class action

In its discussion of this argument, the

United States District Court
For the Northern District of California

10

the breach at the time of the sale, demand for notice of the

11

breach from each and every member of the class may be a

12

meaningless ritual,” but that the statutory requirement still

13

applies.

14

for notice might be satisfied by proof of complaints from some but

15

not all the buyers of the product.

16

particularly appropriate where the failure of the merchandise to

17

conform to express warranties was known to or reasonably

18

discoverable by the seller at the time of the sales.”

19

However, the court did not conclude that this approach could be

20

used, and instead rejected the defendants’ argument because, once

21

liability was established on a class-wide basis, the “element of

22

timely notice by each plaintiff could be shown in order to assess

23

his own individual collectible damages.”

24

Metowski court made that statement in dicta and still required

25

that notice be provided by some purchasers, not by general media

26

report.

27

950 (C.D. Cal. 2012) (rejecting a plaintiff’s reliance on Metowski

28

because the “statement was dicta . . . and plaintiffs cite no

The court stated, “Conceivably, the statutory demand

Such an approach might be

Id. at 341.

Id. at 339.

Thus, the

See Keegan v. Am. Honda Motor Co., 838 F. Supp. 2d 929,

34

1

authority specifically endorsing the concept of collective

2

notice”); see also Daugherty v. Am. Honda Motor Co., Inc., 144

3

Cal. App. 4th 824, 832 (2006) (rejecting reliance on Metowski when

4

no named plaintiffs had alleged that they provided the requisite

5

notice).

6

Accordingly, the Court finds that Plaintiffs have not plead

7

compliance with the notice requirement.

8

leave to amend to remedy this deficiency, provided that they are

9

able to do so truthfully.

Plaintiffs are granted

United States District Court
For the Northern District of California

10

B. Claim elements

11

Under California law, “[a]ny affirmation of fact or promise

12

made by the seller to the buyer which relates to the goods and

13

becomes part of the basis of the bargain creates an express

14

warranty that the goods shall conform to the affirmation or

15

promise.”

16

goods which is made part of the basis of the bargain creates an

17

express warranty that the goods shall conform to the description.”

18

Id. at § 2313(1)(b).

19

‘warrant’ or ‘guarantee’” or “have a specific intention to make a

20

warranty.”

21

“exact terms” of the express warranty.

22

Whirlpool Corp., 2013 U.S. Dist. LEXIS 46167, at *7-11 (E.D. Cal.)

23

(failure to plead exact terms of the alleged express warranty

24

warrants dismissal).

25

Cal. Comm. Code § 2313(1)(a).

“Any description of the

A seller need not “use formal words such as

Id. at § 2313(2).

However, Plaintiffs must plead the
See, e.g., Rossi v.

In the CCAC, Plaintiffs allege that the “terms of the

26

contract include the promises and affirmations of fact and express

27

warranties made by Defendant on its website and through its

28
35

1

marketing and advertising campaign that the iPhone 4S’s Siri

2

feature performs as advertised, as described above.”

3

CCAC ¶ 104.

As Apple argues, Plaintiffs have failed to allege the exact
terms of any warranty.

5

on ‘a commercial’ or ‘the commercial’ or ‘advertisements online’

6

are not equivalent to a recitation of the exact terms of the

7

underlying warranty.”

8

LEXIS 13187, at *6 (N.D. Cal.).

9

which particular commercials and webpages they each relied upon,

10
United States District Court
For the Northern District of California

4

must describe the content of those advertisements and pages with

11

particularity and must allege with specificity their reasonable

12

reliance thereon.

13

Dist. LEXIS 97924, at *10-11 (N.D. Cal.).

14

at this time are not sufficiently detailed to provide Apple with

15

meaningful notice of which particular advertisements and webpages

16

form the basis of their claim, or of what warranty terms

17

Plaintiffs maintain were created by those commercials and pages.

18

“General assertions that Plaintiffs relied

Baltazar v. Apple, Inc., 2011 U.S. Dist.
Plaintiffs must at least allege

Id.; see also Nabors v. Google, Inc., 2011 U.S.
Plaintiffs’ allegations

Accordingly, the Court grants Apple’s motion to dismiss this

19

claim.

20

deficiencies.

21

VI. Breach of implied warranty of merchantability

22

Plaintiffs are granted leave to amend to remedy these

Under California law, “every sale of consumer goods that are

23

sold at retail in this state shall be accompanied by the

24

manufacturer’s and the retail seller’s implied warranty that the

25

goods are merchantable.”

26

warranty of merchantability provides, in part, that the goods must

27

be “fit for the ordinary purposes for which such goods are used.”

28

Cal. Civ. Code § 1791.1(a); Cal. Com. Code § 2134(2)(c).

Cal. Civ. Code § 1792.

36

The implied

1

Apple argues that this claim is barred because it disclaimed

2

the implied warranty of merchantability in the iPhone 4S’s one-

3

year hardware warranty and in the iPhone software license

4

agreement.

5

defense upon which Apple bears the burden of proof.

6

v. Pangborn Corp., 2004 U.S. Dist. LEXIS 22704, at *64 (N.D.

7

Cal.).

8

dismiss if it raises no disputed issues of fact.

9

Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984).

Disclaimer of implied warranties is an affirmative
See Andrade

An affirmative defense may only be raised on a motion to
Scott v.

“The statutory

United States District Court
For the Northern District of California

10

implied warranties of quality can, of course, be disclaimed by the

11

seller, provided the buyer has knowledge or is chargeable with

12

notice of the disclaimer before the bargain is complete.”

13

Sherwin Williams Co., 42 Cal. 2d 682, 693 (1954).

14

of warranties must be specifically bargained for so that a

15

disclaimer in a warranty given to the buyer after he signs the

16

contract is not binding.”

17

App. 3d 11, 19-20 (1975).

18

Burr v.

“A disclaimer

Dorman v. Int’l Harvester Co., 46 Cal.

Apple argues that a disclaimer was provided to customers

19

within the packaging of the iPhone 4S and that Plaintiffs could

20

have returned their iPhones within its thirty day return period

21

after they had discovered and reviewed the warranty, if they did

22

not want to consent to its limitations.

23

within this district that supports that the disclaimer need not be

24

provided prior to purchase, if the purchasers “were able to review

25

the warranty upon purchase and to return the product if they were

26

dissatisfied with the warranty’s limitations.”

27

Apple, Inc., 2010 WL 1460297, at *4 (N.D. Cal.) (Fogel, J.); see

28

also Kowalsky v. Hewlett-Packard Co., 771 F. Supp. 2d 1138, 1156
37

There is some authority

Berenblat v.

1

(N.D. Cal. 2010) (Fogel, J.), vacated in part on other grounds,

2

771 F. Supp. 2d 1156 (N.D. Cal. 2011); Tietsworth v. Sears,

3

Roebuck & Co., 2009 WL 3320486, at *10 (N.D. Cal.).

4

Plaintiffs have not plead the existence of an unqualified return

5

period and Apple has provided no evidence of such a period of

6

which the Court can properly take judicial notice.

7

However,

However, as Apple also argues, Plaintiffs have not plead
“sufficient facts to make it plausible” that the iPhone 4S’s

9

“ordinary and intended purpose” is to use “the Siri intelligent

10
United States District Court
For the Northern District of California

8

assistant feature to send messages, schedule appointments, seek

11

information and directions and to learn new tasks,” instead of

12

being a cell phone.

13

Indeed, in arguing about their CLRA claim, Plaintiffs admitted

14

that the iPhone 4S is at bottom a phone.

15

Plaintiffs’ argument here, that the ordinary purpose of the iPhone

16

4S is to use the Siri feature to send messages and complete other

17

tasks is not consistent with that argument.

18

Mot. at 23 (quoting CCAC ¶¶ 112, 113, 116).

See Opp. at 18.

The iPhone 4S’s intended and ordinary use is as a smartphone,

19

“which the court safely presumes includes functions like making

20

and receiving calls, sending and receiving text messages, or

21

allowing for the use of mobile applications.”

22

Apple, Inc., 2012 U.S. Dist. LEXIS 125368, at *24 (N.D. Cal.).

23

Plaintiffs have not alleged that the iPhone 4S is deficient in any

24

of these functions, but rather merely in providing the Siri

25

feature to access these functions.

26

Williamson v.

Finally, even if the ability to use Siri was part of the

27

ordinary purpose of the iPhone 4S, Plaintiffs have not plead

28

sufficiently that the implied warranty of merchantability was
38

1

breached.

2

usable to some extent but was not “a consistent intelligent

3

assistant.”

4

(alleging that, for Hamagaki, “Siri was able to respond to very

5

general requests, such as ‘find me a gas station’ or ‘find me Thai

6

food’”).

7

contractual in nature, the implied warranty of merchantability

8

arises by operation of law. . . . [I]t provides for a minimum

9

level of quality.”

Plaintiffs have alleged that the Siri feature was

CACC ¶ 116 (emphasis added); see also id. at ¶ 23

“Unlike express warranties, which are basically

American Suzuki Motor Corp. v. Superior Court,

United States District Court
For the Northern District of California

10

37 Cal. App. 4th 1291, 1295-96 (1995).

11

demonstrate that the product “did not possess even the most basic

12

degree of fitness for ordinary use.”

13

114 Cal. App. 4th 402, 406 (2003) (citing Cal. Com. Code

14

§ 2314(2)).

15

the alleged defect was ‘inconvenient’” but rather that the

16

products were unfit for their ordinary purpose.

17

U.S. Dist. LEXIS 96140, at *10 (citing Kent v. Hewlett-Packard

18

Co., 2010 U.S. Dist. LEXIS 76818, at *11-12 (N.D. Cal.).

19

the acknowledgment that Siri could be used as an assistant for at

20

least basic purposes, Plaintiffs have not alleged sufficiently

21

that the function was unusable or that it did not have the most

22

basic degree of fitness.

23

A plaintiff must

Mocek v. Alfa Leisure, Inc.,

This means that Plaintiffs must show “more than that

Baltazar, 2011

Given

Accordingly, Apple’s motion to dismiss the implied warranty

24

of merchantability claim is granted and Plaintiffs are granted

25

leave to amend.

26

VII. Magnuson-Moss Warranty Act claim

27
28

“Violations of the Magnuson-Moss Warranty Act (MMWA) can rest
on breaches of warranties created under state law.”
39

Herrington v.

Johnson & Johnson Consumer Cos., 2010 U.S. Dist. LEXIS 90505, at

2

*40-41 (N.D. Cal.) (citing Birdsong v. Apple, Inc., 590 F.3d 955,

3

958 n.2 (9th Cir. 2009); Clemens v. DaimlerChrysler Corp., 534

4

F.3d 1017, 1022 (9th Cir. 2008). Plaintiffs do not argue that

5

their MMWA claims rest on bases other than their state law

6

warranty claims.

7

warranty claims should not be dismissed, their MMWA claim also

8

should not be dismissed.

9

breach of express warranties, notice and an opportunity to cure

10
United States District Court
For the Northern District of California

1

prior to filing a class action is not required for a MMWA claim.

They argue primarily that, because their other

They also point out that, unlike for

11

Because the Court dismisses Plaintiffs’ state law warranty

12

claims for a number of reasons in addition to failure to allege

13

pre-filing notice, the Court also grants Apple’s motion to dismiss

14

Plaintiffs’ MMWA claim.

15

VIII. Unfair competition claim

16

Plaintiffs are granted leave to amend.

The California Unfair Competition Law (UCL), Cal. Bus. &

17

Prof. Code § 17200 et seq., prohibits “any unlawful, unfair or

18

fraudulent business act or practice and unfair, deceptive, untrue

19

or misleading advertising.”

20

the disjunctive, it establishes three types of unfair competition.

21

Davis v. Ford Motor Credit Co., 179 Cal. App. 4th 581, 593 (2009).

22

Therefore, a practice may be prohibited as unfair or deceptive

23

even if it is not unlawful and vice versa.

24

Healthcare Corp., 50 Cal. App. 4th 632, 647 (1996).

25

Because section 17200 is written in

Podolsky v. First

Apple contends that Plaintiffs have failed to allege that it

26

engaged in any “unlawful, unfair or fraudulent business act or

27

practice” in violation of the UCL.

28

argues that Plaintiffs have failed to state a claim for fraudulent
40

To the extent that Apple

1

business acts and practices, the Court grants the motion for the

2

same reasons that the common law fraud claim was dismissed above.

3

A “violation of another law is a predicate for stating a

4

cause of action under the UCL’s unlawful prong.”

5

Merit Prop. Mgmt., 152 Cal. App. 4th 1544, 1554 (2007).

6

the Court dismisses Plaintiffs’ other claims, the Court also finds

7

that Plaintiffs have failed properly to allege a claim under the

8

unlawful prong of the UCL.

Berryman v.
Because

Further, “[t]o have standing under California’s UCL, as

10
United States District Court
For the Northern District of California

9

amended by California’s Proposition 64, plaintiffs must establish

11

that they (1) suffered an injury in fact and (2) lost money or

12

property as a result of the unfair competition.”

13

F.3d at 960 (citing Cal. Bus. & Prof. Code § 17204; Walker v.

14

Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th Cir. 2009)).

15

Plaintiffs have failed to allege adequately that they were injured

16

as a result of any particular deceptive or misleading statements

17

made by Apple.

18

they have UCL standing to prosecute this claim.

19

Birdsong, 590

Here,

Accordingly, they have not properly alleged that

Accordingly, the Court grants Apple’s motion to dismiss the

20

UCL claim in its entirety.

21

to remedy the deficiencies identified above.

22

IX. Unjust enrichment claim

23

Plaintiffs are granted leave to amend

Plaintiffs assert a claim for unjust enrichment based on the

24

same conduct that underlies their other causes of action.

25

parties both acknowledge, as the Court has observed on previous

26

occasions, that California courts are split on whether there is an

27

independent cause of action for unjust enrichment.

28

Delacruz, 2012 U.S. Dist. LEXIS 51094, at *28-29; Lyons v.
41

The

See, e.g.,

1

JPMorgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 74808, at *15-16

2

(N.D. Cal. 2011).

3

One view is that unjust enrichment is not a cause of action,

4

or even a remedy, but rather a general principle underlying

5

various legal doctrines and remedies.

6

Cal. App. 4th 379, 387 (2004); see also Smith v. Ford Motor Co.,

7

462 Fed. App’x. 660, 665 (9th Cir. 2011) (denying as unmeritorious

8

plaintiffs’ appeal from “the district court’s ruling that unjust

9

enrichment is not an independent cause of action in California”).

McBride v. Boughton, 123

United States District Court
For the Northern District of California

10

In McBride, the court construed a “purported” unjust enrichment

11

claim as a cause of action seeking restitution.

12

at 387.

13

action seeking restitution: (1) an alternative to breach of

14

contract damages when the parties had a contract which was

15

procured by fraud or is unenforceable for some reason; and

16

(2) where the defendant obtained a benefit from the plaintiff by

17

fraud, duress, conversion, or similar conduct and the plaintiff

18

chooses not to sue in tort but to seek restitution on a quasi-

19

contract theory.

20

a contract, or quasi-contract, without regard to the parties’

21

intent, to avoid unjust enrichment.

22

Inc. v. GE Capital Corp., 96 F.3d 1151, 1167 (9th Cir. 1996)

23

(“Under both California and New York law, unjust enrichment is an

24

action in quasi-contract . . .”).

25

123 Cal. App. 4th

There are at least two potential bases for a cause of

Id. at 388.

In the latter case, the law implies

Id.; see also Paracor Fin.,

A minority view is that there is a cause of action for unjust

26

enrichment and its elements are receipt of a benefit and unjust

27

retention of the benefit at the expense of another.

28
42

Lectrodryer

1

v. SeoulBank, 77 Cal. App. 4th 723, 726 (2000); First Nationwide

2

Sav. v. Perry, 11 Cal. App. 4th 1657, 1662-63 (1992).

3

The Court finds persuasive the cases which conclude that a

4

stand-alone claim for unjust enrichment cannot be maintained and

5

that, where the plaintiffs have failed properly to allege any

6

cognizable claim for relief upon which they may base their claim

7

for unjust enrichment or restitution, the unjust enrichment claim

8

must also be dismissed.

9

U.S. Dist. LEXIS 80734, at *18-19 (N.D. Cal.) (stating that “a

See, e.g., Berenblat v. Apple, Inc., 2009

United States District Court
For the Northern District of California

10

claim for unjust enrichment cannot stand alone without a

11

cognizable claim under a quasi-contractual theory or some other

12

form of misconduct” and dismissing claim where other claims have

13

already been dismissed); Oestreicher v. Alienware Corp., 544 F.

14

Supp. 2d 964, 975 (N.D. Cal. 2008) (“since plaintiff’s fraud-based

15

claims have been dismissed, plaintiff has no basis for its unjust

16

enrichment claim.”).

17

theory of recovery for Plaintiffs have been dismissed, the Court

18

dismisses this claim as well.

19

amend.

Because all of the claims that could form a

Plaintiffs are granted leave to

20

CONCLUSION

21

For the reasons set forth above, the Court grants Apple’s

22

motion to dismiss (Docket No. 32).

23

to amend to remedy the deficiencies identified herein, within

24

fourteen days of the date of this Order.

25

consolidated complaint, Plaintiffs may incorporate the allegations

26

made by Plaintiff Jones in his separate complaint.

27

not add new claims.

28
43

Plaintiffs are granted leave

In any amended

Plaintiffs may

1

If Plaintiffs file an amended consolidated complaint, Apple

2

shall respond within fourteen days thereafter.

3

dismiss or strike the amended consolidated complaint, Plaintiffs

4

shall respond to the motion within fourteen days after it is

5

filed.

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thereafter.

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the papers.

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If Apple moves to

Apple’s reply, if necessary, shall be due seven days
Any motion to dismiss or strike will be decided on

Within fourteen days of the date of this Order, the parties
shall file a stipulation or, if they are unable to reach a

United States District Court
For the Northern District of California

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stipulation, a joint case management statement, setting forth a

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proposed schedule resetting the case management dates that the

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Court vacated on March 27, 2013.

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See Docket No. 67.

IT IS SO ORDERED.

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Dated: 7/23/2013

CLAUDIA WILKEN
United States District Judge

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