Gomelsky v. Apple, Inc.

Filing 25

Renotice motion hearing re Apple Inc.'s Amended Notice of Motion to Dismiss and to Strike filed byApple, Inc.. Motion Hearing set for 3/6/2009 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Preovolos, Penelope) (Filed on 1/21/2009)

Gomelsky v. Apple, Inc.

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PENELOPE A. PREOVOLOS (CA SBN 87607) (PPrevolos@mo fo.com) ANDREW D. MUHLBACH (CA SBN 175694) (AMuhlbach@mo fo.com) ANNE M. HUNTER (CA SBN 221455) (AHunter@mo fo.com) ALEXEI KLESTOFF (CA SBN 224016) (AKlestoff@mo fo.com) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: 415.268.7522 Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

GIORGIO GOMELSKY, on behalf of himself and all others similarly situated, Plaint iff, v. APPLE INC., Defendant.

Case No.

C-08-04969 JF

APPLE INC.'S AMENDED NOTICE OF MOTION TO DISMISS AND TO STRIKE Date: March 6, 2009 Time: 9:00am Courtroom: 3

PLEASE TAKE NOTICE that on March 6, 2009 at 9:00am, in the courtroom of the Honorable Jeremy Fogel, San Jose, California, defendant Apple Inc. ("Apple") will move to dismiss all of plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. If plaint iff's Unfair Competition Law ("UCL") claim is not dismissed, Apple will also move to strike plaintiff's prayer for damages under the UCL, pursuant to Federal Rule of Civil Procedure 12(f).

APPLE'S AMENDED NOTICE OF MOTION TO DISMISS AND TO STRIKE CASE NO. C-08-04969 JF sf-2632491

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Dockets.Justia.com

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Apple moves to dismiss plaintiff's claims on the following grounds: (1) plaintiff fails to state a claim for breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, violation of the Song-Beverly Consumer Warranty Act, and violation of the Magnuson-Moss Warranty Act because the alleged defect in plaintiff's computer manifested itself after any implied warranties had expired; (2) plaintiff fails to state a claim for violation of Song-Beverly Act for the additional, independent, reason that he does not allege he purchased his computer in California; (3) plaintiff fails to state a claim for negligence because he seeks damages only for economic loss, which are not recoverable under a negligence theory; (4) plaintiff fails to state a claim for violation of the UCL because Apple's actions were neither unlawful nor unfair; (5) plaintiff fails to state a claim for unjust enrichment because that claim is based on his other claims, all of which fail as a matter of law. If plaintiff's UCL claim is not dismissed, Apple moves to strike plaintiff's prayer for damages under that statute, because damages are unavailable under the UCL. This motion is based on this Amended Notice of Motion and Motion and the Memorandum of Points and Authorities, the Request for Judicial Notice ("RJN"), and the declaration of Anne M. Hunter filed on December 22, 2008, all pleadings and papers filed therein, oral argument by counsel, and such other and further matter that properly may be received by the Court.

Dated: January 21, 2009

PENELOPE A. PREOVOLOS ANDREW D. MUHLBACH ANNE M. HUNTER ALEXEI KLESTOFF MORRISON & FOERSTER LLP By: /s/ Penelope A. Preovolos Penelope A. Preovolos Attorneys for Defendant APPLE INC.

APPLE'S AMENDED NOTICE OF MOTION TO DISMISS AND TO STRIKE CASE NO. C-08-04969 JF sf-2632491

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