McKinney v. Google, Inc. et al

Filing 122

Request for Judicial Notice re 115 Request for Judicial Notice, DEFENDANTS GOOGLE INC. AND HTC CORPORATION'S REPLY IN SUPPORT OF THEIR REQUEST FOR JUDICIAL NOTICE filed byGoogle, Inc., HTC Corp.. (Related document(s) 115 ) (Larrabee, Matthew) (Filed on 11/28/2011)

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MATTHEW L. LARRABEE (No. 97147)
[e-mail]
DECHERT LLP
One Maritime Plaza, Suite 2300
San Francisco, California 94111-3513
Telephone: [phone]
Facsimile: 415.262.4555
STEVEN B. WEISBURD (No. 171490)
[e-mail]
DECHERT LLP
300 West 6th Street, Suite 2010
Austin, TX 78701
Telephone: [phone]
Facsimile: 512.394.3001
Attorneys for Defendant
GOOGLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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Lead Case No. 5:10-CV-01177-EJD
(Consolidated with No. 5:10-CV-03897-EJD)

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In re Google Phone Litigation
DEFENDANTS GOOGLE INC. AND HTC
CORPORATION’S REPLY IN SUPPORT
OF THEIR REQUEST FOR JUDICIAL
NOTICE
Date:
Time:
Dept:
Judge:

February 3, 2012
9:00 a.m.
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Hon. Edward J. Davila

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D ECHERT LLP
ATTO RNEY S AT LAW
SAN FRA NCI SCO

DEFENDANTS’ REPLY ISO REQUEST FOR JUDICIAL NOTICE
CASE NO. 5:10-CV-01177-EJD

Plaintiffs’ Opposition (“Opp.”) to the request for judicial notice filed by defendants

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Google Inc. (“Google”) and HTC Corporation (“HTC”) is without merit. As Google and HTC

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argued, the documents at issue – the Terms of Sale for the Nexus One that Plaintiffs’ counsel

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attached to McKinney’s original state-court complaint (Exhibit 1) and the HTC Limited Warranty

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(Exhibit 2) – may properly be considered by the Court on their joint Rule 12(b)(6) motion to

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dismiss under the “incorporation by reference” doctrine, and are also subject to judicial notice

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under Federal Rule of Evidence 201. See Request for Judicial Notice (“RFJN”).

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I.

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The Terms Of Sale And The HTC Limited Warranty Are Subject To Judicial Notice.
Plaintiffs do not even discuss the incorporation-by-reference doctrine, much less dispute

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Google and HTC’s arguments that the Terms of Sale and the HTC Limited Warranty are properly

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considered under that doctrine.1 For instance, Plaintiffs do not (and cannot) deny that courts in

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this District have repeatedly and properly considered the substance and content of written

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warranties in defendants’ customer contracts that the plaintiffs, for whatever reason, failed to

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attach to their complaints. See RFJN at 1-4 (citing cases); see also Long v. Hewlett-Packard Co.,

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2007 U.S. Dist. LEXIS 79262, at **17-18 n.3 (N.D. Cal. July 27, 2007); Inter-Mark USA, Inc. v.

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Intuit, Inc., 2008 U.S. Dist. LEXIS 18834, at **21-25 (N.D. Cal. Feb. 27, 2008).

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Nor do Plaintiffs raise any credible argument that the existence and contents of the Terms

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of Sale and the HTC Limited Warranty are not subject to judicial notice as facts not subject to

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“reasonable dispute” in that they are “either: (1) generally known within the territorial jurisdiction

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of the trial court; or (2) capable of accurate and ready determination by resort to sources whose

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accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b). Plaintiffs do not (and

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cannot) dispute the settled rule that courts may take judicial notice of documents in their own

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public case files, which, here, includes the Terms of Sale. The existence and content of the HTC

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Limited Warranty is also not subject to reasonable dispute because it is a standard document

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available to the public with the purchase of any Nexus One phone. See Datel Holdings Ltd. v.

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D ECHERT LLP
ATTO RNEY S AT LAW
SAN FRA NCI SCO

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Moreover, in their Opposition to Defendants’ Motion to Dismiss, Plaintiffs argue only that
HTC’s limited warranty may not be considered by the Court under the incorporation by reference
doctrine. See Mot. Dismiss Opp. at 4. Plaintiffs do not argue that the Terms of Sale are not
properly before the Court under this doctrine.
DEFENDANTS’ REPLY ISO REQUEST FOR JUDICIAL NOTICE
CASE NO. 5:10-CV-01177-EJD

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Microsoft Corp., 712 F. Supp. 2d 974, 983-84 (N.D. Cal. 2010) (taking judicial notice of various

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documents related to the sale of Xbox 360 video game consoles and related contractual and

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warranty agreements because they were “standard documents” that were “publicly available

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online” or “in any Xbox 360 console packaging”). The copy of the HTC Limited Warranty

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attached as Exhibit 2 to the RJFN is HTC’s standard warranty for the Nexus One that is included

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in the Nexus One box packaging. See Declaration of Rosemarie T. Ring in support of RJFN

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(“Ring Decl.”), at 1.
Instead, Plaintiffs advance only two arguments: (1) that the existence and content of the

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Terms of Sale and the HTC Limited Warranty are subject to “reasonable dispute” because Google

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and HTC supposedly have not sufficiently “authenticated” them; and (2) that the documents

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constitute inadmissible “hearsay.” Opp. at 3-4. Both arguments are meritless.

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II.

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Plaintiffs’ Challenge To The Authenticity Of The Documents Is Meritless
Plaintiffs “dispute” the authenticity of the documents on three grounds, none of which are

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“reasonable” or even relevant to whether they are subject to judicial notice. First, as to the

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Terms of Sale attached as Exhibit 1 to the RJFN, the best Plaintiffs can do is say that Google

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provided “no indisputable evidence that the Terms of Sale attached to Plaintiff McKinney’s

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original complaint is the Terms of Sale Google attaches to its Request for Judicial Notice.” Opp.

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at 3. A simple comparison of the two documents confirms that the Terms of Sale attached to

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Google’s RFJN is the same as the Terms of Sale in the Court’s own files and public record. See

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also Yeganeh v. Sims, 2006 U.S. Dist. LEXIS 32765, at **10-11 (N.D. Cal. May 12, 2006)

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(taking judicial notice of prior court filings, and noting that “these documents are all court filings

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whose authenticity may be easily checked against the public record”). Thus, Plaintiffs have no

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basis to dispute whether Exhibit 1 is the same version of the Terms of Sale that Plaintiffs’ counsel

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attached to McKinney’s original state-filed complaint.

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Second, Plaintiffs argue that the Court cannot take judicial notice of the documents

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because there is “no evidence that Plaintiffs actually received the Terms of Sale and/or the HTC

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[Limited Warranty], nor that they read, understood or agreed to any term set forth therein.” Opp.

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at 3. Plaintiffs are wrong. In Datel Holdings, plaintiff argued that the Terms of Use document
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D ECHERT LLP
ATTO RNEY S AT LAW
SAN FRA NCI SCO

DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:10-CV-01177-EJD

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for Xbox consoles was not subject to judicial notice because defendant had not established that it

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was provided to all Xbox customers during the relevant period. The court rejected this argument,

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holding that whether customers received the document “goes to the weight of the evidence, not to

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whether the documents are judicially noticeable.” 712 F. Supp. 2d at 984; see also In re NVIDIA

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GPU Litig., 2009 U.S. Dist. LEXIS 108500, at *8 (N.D. Cal. Nov. 19, 2009) (granting request for

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judicial notice of written warranties, even though defendant “failed to demonstrate whether [the]

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documents [were] in fact the warranties that apply to all of the [computers at issue] or even

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whether [the] purported warranties comprise the full extent of the applicable [] warranties”).

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Here, Plaintiffs’ counsel themselves alleged in McKinney’s original state-court complaint (to

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which this copy of Exhibit 1 to the RFJN was attached as its Exhibit A) that this document was

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the “agreement” between Plaintiffs and Google.2 McKinney Docket No. 2 (Pltf’s Class Action

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Complaint (filed Jan. 10, 2010), ¶ 11 & Exh. A). The Terms of Sale also contain an

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acknowledgment by Plaintiffs as to the existence of the HTC Limited Warranty, which was also

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provided to Plaintiffs in Nexus One packaging. See Ring Decl. at 1.
Third, Plaintiffs’ argument that Defendants cannot “bootstrap” the HTC Limited Warranty

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“simply because it is referenced in another document,” also misconceives the relevant inquiry—

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whether the existence and content of a document is reasonably subject to dispute—and is wrong

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as a factual matter. The Terms of Sale does more than “simply” reference the HTC Limited

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Warranty. It required Plaintiffs to “acknowledge” the existence of the HTC Limited Warranty

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and referred them to a copy of the HTC Limited Warranty contained in Nexus One box

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packaging. See RFJN, Exhibit 1.
Under the incorporation-by-reference doctrine and Federal Rule of Evidence 201, the

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authenticity of the documents at issue must reasonably be subject to dispute. See RFJN, at 2-4

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(citing authorities). As discussed above, Plaintiffs have no reasonable basis to dispute the

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authenticity of the Terms of Sale, or the HTC Limited Warranty, which they expressly

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D ECHERT LLP
ATTO RNEY S AT LAW
SAN FRA NCI SCO

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Based on a review of Google’s records, the terms set out in Exhibit 1 are those applicable to
Plaintiffs’ purchase of the Nexus One. Moreover, Google’s website required Plaintiffs to check a
box to complete their purchase, by which they indicated their acceptance of these terms. RFJN,
Exh. 1 at 1.
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DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:10-CV-01177-EJD

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acknowledged as part of the Terms of Sale and received in Nexus One box packaging.

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III.

Plaintiffs’ Challenge To The Documents As Inadmissible Hearsay Is Meritless

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Plaintiffs’ argument that the Terms of Sale and the HTC Limited Warranty cannot be

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considered because they constitute inadmissible “hearsay” (Opp. at 3-4) is equally meritless.

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Plaintiffs cite no law in support of their argument because there is none. Indeed, “documents

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containing operative facts, such as the words forming an agreement, are not hearsay.” Jazayeri v.

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Mao, 174 Cal. App. 4th 301, 316 (2009); see also 1 WITKIN, CALIFORNIA EVIDENCE,

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Hearsay, § 31 (4th ed. 2000) (hearsay rule does not apply to the content and substance of writings

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reflecting parties’ contracts and agreements, which are not “hearsay” but rather “original

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evidence”; “the words themselves, written or oral, are ‘operative facts,’” and not “hearsay”

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because “an issue in the case is whether they were uttered or written”); Arechiga v. Dolores

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Press, Inc., 192 Cal. App. 4th 567, 576-577 (2011) (“written or oral utterances, which are acts in

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themselves constituting legal results in issue in the case, do not come under the hearsay rule”).

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Federal hearsay law is equally clear that a “legally operative document that defines the rights and

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liabilities of the parties,” such as a contract, is “excluded from the definition of hearsay and is

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admissible evidence[.]” Stuart v. UNUM Life Ins. Co. of America, 217 F.3d 1145, 1154 (9th Cir.

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2000); see also U.S. v. Rubier, 651 F.2d 628, 630 (9th Cir. 1981) (terms of “a contract” have

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“independent legal significance” and “are not hearsay”); Mueller v. Abdnor, 972 F.2d 931, 937

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(8th Cir. 1992) (“A contract, for example, is a form of verbal act to which the law attaches duties

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and liabilities and therefore is not hearsay.”); Wright et al., 30B Fed. Prac. & Proc. Evid. § 7005

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(2d ed. 2011) (“statements constituting contracts” are not “hearsay”). Plaintiffs’ argument that

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the documents are “hearsay” is not only contrary to the law, but it would prevent courts from ever

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reviewing and considering the terms of any contract or agreement in the context of any breach-of-

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contract or breach-of-warranty case.

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In sum, the Terms of Sale (RFJN Exhibit 1) and the HTC Limited Warranty (RFJN

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Exhibit 2) may properly be considered by the Court on Google and HTC’s Rule 12(b)(6) motion

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to dismiss under the incorporation-by-reference doctrine, and both are also subject to judicial

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notice. Plaintiffs’ arguments to the contrary are baseless.

D ECHERT LLP
ATTO RNEY S AT LAW
SAN FRA NCI SCO

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DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:10-CV-01177-EJD

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Dated: November 28, 2011

Respectfully submitted,

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DECHERT LLP

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By: /s/ Steven B. Weisburd
.
Matthew L. Larrabee (No. 97147)
Steven B. Weisburd (No. 171490)
One Maritime Plaza, Suite 2300
San Francisco, California 94111-3513
Telephone: [phone]
Facsimile: 415.262.4555

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Counsel for Defendant GOOGLE INC.
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MUNGER, TOLLES & OLSON LLP

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By: /s/ Rosemarie T. Ring
.
Henry Weissmann (No. 132418)
Rosemarie T. Ring (No. 220769)
560 Mission Street, 27th Floor
San Francisco, California 94105-2907
Telephone: [phone]
Facsimile: 415.644.6908

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Counsel for Defendant HTC CORPORATION

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D ECHERT LLP
ATTO RNEY S AT LAW
SAN FRA NCI SCO

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DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS
CASE NO. 5:10-CV-01177-EJD

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CERTIFICATION
I, Matthew L. Larrabee, am the ECF User whose identification and password are being

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used to file this motion. In compliance with General Order 45.X.B., I hereby attest that Steven B.

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Weisburd and Rosemarie T. Ring have concurred in this filing.

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D ECHERT LLP
ATTO RNEY S AT LAW
SAN FRA NCI SCO

DEFENDANTS’ REPLY ISO REQUEST FOR JUDICIAL NOTICE
CASE NO. 5:10-CV-01177-EJD