McKinney v. Google, Inc. et al

Filing 123

STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d DEFENDANTS GOOGLE INC. AND HTC CORPORATIONS STATEMENT OF RECENT DECISION IN SUPPORT OF DEFENDANTS MOTION TO DISMISS PLAINTIFFS CONSOLIDATED AMENDED COMPLAINT filed byGoogle, Inc., HTC Corp.. (Related document(s) 113 ) (Larrabee, Matthew) (Filed on 1/12/2012)

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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

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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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In re Google Phone Litigation

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

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DEFENDANTS GOOGLE INC. AND HTC
CORPORATION’S STATEMENT OF
RECENT DECISION IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS
PLAINTIFFS’ CONSOLIDATED AMENDED
COMPLAINT [L.R. 7-3(d)(2)]
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’ STATEMENT OF RECENT DECISION
CASE NO. 5:10-CV-01177-EJD

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Pursuant to Local Rule 7-3(d)(2), Defendants Google Inc. and HTC Corporation submit

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the following recent decision in support of their pending Motion to Dismiss Plaintiffs’

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Consolidated Amended Complaint:

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

Baltazar v. Apple Inc., No. 3:10-cv-03231, 2011 WL 6747884 (N.D. Cal. Dec. 22,
2011), a true and correct copy of which is attached hereto as Exhibit A.

Dated: January 12, 2012,

Respectfully submitted,

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DECHERT LLP

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By: /s/ Steven B. Weisburd
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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
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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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DEFENDANTS’ STATEMENT OF RECENT DECISION

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’ STATEMENT OF RECENT DECISION

CASE NO. 5:10-CV-01177-EJD

EXHIBIT A

Page 1
Slip Copy, 2011 WL 6747884 (N.D.Cal.)
(Cite as: 2011 WL 6747884 (N.D.Cal.))

Only the Westlaw citation is currently available.
United States District Court,
N.D. California.
Jacob BALTAZAR, Claudia Keller, John R.
Browning, Matthew Halper, Judi Ritchie, Chadwick
Horn, individually, and on behalf of all others similarly situated, Plaintiffs,
v.
APPLE INC., Defendant.
No. C 10–03231 WHA.
Dec. 22, 2011.
Scott Edward Cole, Hannah R. Salassi, Matthew
Roland Bainer, Scott Cole & Associates, APC,
Oakland, CA, for Plaintiffs.
Thomas A. Counts, Eric Andrew Long, Paul Hastings LLP, San Francisco, CA, David Michael
Walsh, Esq., Paul Hastings LLP, Los Angeles, CA,
for Defendant.
ORDER GRANTING MOTION TO DISMISS
WILLIAM ALSUP, District Judge.
INTRODUCTION
*1 In this consumer class action involving the
iPad, plaintiffs allege breach of contract and violation of California's Unfair Competition Law
(“UCL”) against defendant Apple Inc. Apple moves
to dismiss plaintiffs' third amended complaint for
failure to state a claim upon which relief may be
granted. For the reasons discussed below, the motion to dismiss is GRANTED.
STATEMENT
Apple launched the iPad on January 27, 2010
(Third Amd. Compl. ¶ 16). Plaintiffs represent a
putative class of iPad purchasers, including both a
California-only class and a nationwide class (id. ¶
12). Each of the named plaintiffs alleges that he or
she chose to purchase an iPad based at least in part
on what they characterize as representations by

Apple that the iPad could function outdoors as an ereader and mobile internet device (id. ¶¶ 34–46).
Plaintiffs allege that the iPad did not function outdoors as represented by Apple (ibid.). They claim
that the device overheated when it was used outdoors even within the acceptable ambient temperature range, causing it to shut down until it cooled (
ibid.). Plaintiffs claim that outdoor overheating was
exacerbated by the iPad's black face, which absorbed more heat from sunlight (id ¶ 20). The operating temperature range for normal use, as defined
by Apple in the product specifications available on
the packaging and online, was thirty-two to ninetyfive degrees Fahrenheit (id. ¶ 23).
Plaintiffs base their pleadings on iPad advertisements and the product specifications. Plaintiffs
claim that Apple produced a television commercial
showing images of the iPad being used outdoors, at
least some of the time on sunny days, and posted on
its website a video showing scenes of the iPad being used outdoors and in the sun (id. ¶ 24–25).
They also base their claims on a statement made on
Apple's website that “[r]eading the iPad is just like
reading a book” (id. ¶ 28). Finally, they assert that
Apple expressly represented, both on the iPad's
packaging and on its website, that the iPad would
function normally within the specified ambient
temperature range (id. ¶ 23). This order takes judicial notice of the materials plaintiffs rely on: the
iPad warranty, web page regarding iBooks, screenshot of the web-video link, and 30–second television commercial (Dkt.Nos.12, 30, 54, 64). Plaintiffs
do not challenge the authenticity of these materials.
District Judge Jeremy Fogel issued two prior
orders dismissing plaintiffs' first and second
amended complaints with leave to amend
(Dkt.Nos.50, 68). The order dismissing the second
amended complaint held that plaintiffs failed to allege sufficient facts to state breach of warranty
claims (express warranty, implied warranty of merchantability, and California Song–Beverly Consumer Warranty Act), common-law fraud, inten-

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tional misrepresentation, and negligent misrepresentation claims, their claims under California's consumer protection statutes, California's False Advertising Law, Unfair Competition Law, and the Consumers Legal Remedies Act, as well as their claim
for unjust enrichment. The order gave plaintiffs “a
final opportunity to amend” (Dkt. No. 68 at 2)
(emphasis added). In November 2011, this action
was reassigned to the undersigned judge.
*2 In their now-operative pleading, plaintiffs
allege virtually identical facts as their dismissed
complaint (compare Third Amd. Compl. ¶¶ 15–48
with Second Amd. Compl. ¶¶ 15–48). Plaintiffs replead their UCL claim without any material modifications, and change their warranty claim into a
breach-of-contract claim (compare Third Amd.
Compl. ¶¶ 49–67 with Second Amd. Compl. ¶¶
111–134).
ANALYSIS
1. LEGAL STANDARD FOR MOTION TO
DISMISS.
“Dismissal under Rule 12(b)(6) is appropriate
only where the complaint lacks a cognizable legal
theory or sufficient facts to support a cognizable
legal theory.” Mendiondo v. Centinela Hosp. Center, 521 F.3d 1097, 1104 (9th Cir.2008). “While a
complaint attacked by Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds' of his
‘entitle[ment] to relief’ requires more than labels
and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1964–65, 167 L.Ed.2d 929 (2007) (internal
citations omitted).
The Court may take judicial notice of
“documents whose contents are alleged in a complaint and whose authenticity no party questions,
but which are not physically attached to the pleadings.” Branch v. Tunnell, 14 F.3d 449, 454 (9th
Cir.1994). In a motion to dismiss, the court need
not accept as true allegations that contradict matters
properly subject to judicial notice or by exhibit.

Sprewell v. Golden State Warriors, 266 F.3d 979,
988 (9th Cir.2001).
2. BREACH OF CONTRACT.
A. Legal Standard.
“A cause of action for damages for breach of
contract is comprised of the following elements: (1)
the contract, (2) plaintiff's performance or excuse
for nonperformance, (3) defendant's breach, and (4)
the resulting damages to plaintiff.” Durell v. Sharp
Healthcare, 183 Cal.App.4th 1350, 1367, 108
Cal.Rptr.3d 682 (2010). “A written contract may be
pleaded either by its terms-set out verbatim in the
complaint or a copy of the contract attached to the
complaint and incorporated therein by reference-or
by its legal effect. In order to plead a contract by its
legal effect, plaintiff must allege the substance of
its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal
conclusions.” McKell v. Washington Mut., Inc., 142
Cal.App.4th 1457, 1489, 49 Cal.Rptr.3d 227 (2006)
.
The contractual promise under a breachof-contract theory is similar to the terms under a
warranty theory. See Cal. Comm.Code 2313
(stating that the terms of an express warranty arise
from any promise made by the seller to the buyer
which relates to the goods and becomes part of the
basis of the bargain); Siders v. Schloo, 188
Cal.App.3d 1217, 1221, 233 Cal.Rptr. 906 (1987)
(explaining that plaintiff's breach-of-contract theory
was not significantly different from their warranty
claim which tried to incorporate implied terms into
the contract of sale).
B. Same Factual Deficiencies as the Dismissed
Second Amended Complaint.
*3 Plaintiffs allege virtually identical facts underlying their breach-of-contract claim as their
earlier warranty claims, which were dismissed for
insufficient facts. Plaintiffs' third amended complaint adds no material facts and states only the for-

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mulaic elements of breach of contract (Third Amd.
Compl. ¶¶ 64–67). The advertisements and specifications are insufficient to show that Apple ever
represented or claimed that the iPad would operate
without interruption under conditions used by
plaintiffs. This was already so held by Judge Fogel.
The same analysis applies to plaintiffs' breachof-contract claim. Plaintiffs do not explain how repleading the same facts as a breach-of-contract
claim can change the reasonable promise or warranty by Apple. Once again, the allegations are insufficient to support the essential elements of either
a warranty or a breach-of-contract claim.
As they did in their dismissed second amended
complaint, plaintiffs yet again rely on a commercial
containing seven brief scenes depicting the iPad in
use in “outdoor locations,” some of which occurred
on a “sunny day” (Third Amd. Compl. ¶ 24).
Plaintiff fails to mention that the seven brief scenes
are only a small fraction of the thirty-second commercial, which consisted of approximately thirty
different scenes. The images depiction outdoor use
were fast and fleeting. Several of the images were
on the screen for less than a second, and none
showed the iPad being used in direct sunlight or for
an extended period in any outdoor environment
(Dkt. No. 54 at Exh. A). The overall impression of
the commercial is not that the iPad was an outdoor
product, but a mobile product. In fact, the iPad was
not even turned on in some of the scenes, but was
merely being moved about handily. Even under the
most liberal pleading standard, and even though
there are seven of them, these brief depictions cannot be construed as a promise that the device will
operate relentlessly outdoors in sunlight.
Plaintiffs' allegations based on the web video
linked to Apple's website are similarly deficient.
The independently created video contained brief
scenes of the iPad being used outdoors, including
being affixed to the dashboard of a car and the gas
tank of a motorcycle (Third Amd. Compl. ¶ 25).
Importantly, the Apple web page containing a link
to the video clearly described the video as having

been created by “iPad owner Jesse Rosten,” and it
quoted Rosten's statement that, “This is an exploration of what is possible, not necessarily what is
practical.” Apple also added a footnote to Rosten's
statement, warning “Do not attempt.” Plaintiffs fail
to allege that any advertisement promised the particular performance plaintiffs claim to be entitled
to.
Plaintiffs allege that the iPad was packaged
with an express warranty against defects in materials or workmanship under normal use, and that
Apple itself defined normal use to include operation
in a place where the ambient temperature was
between thirty-two and ninety-five degrees Fahrenheit. While the warranty covered defects that arise
if the iPad was used normally, there was no promise that the device would operate without interruption under all conditions within a specified ambient
temperature range. To use an obvious example, one
could not conclude from the specifications that the
iPad would be expected to operate in a rain or snow
storm simply because it is designed to operate at
certain ambient temperatures. In sum, plaintiffs do
not alleged sufficient facts to show there was a
breach of contract.
3. UNFAIR COMPETITION LAW.
A. Legal Standard.
*4 Section 17200 prohibits acts of unfair competition, including “any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive,
untrue, or misleading advertising.” Claims made
under the UCL are governed by the “reasonable
consumer” test which focuses on whether
“members of the public are likely to be deceived.”
Williams v. Gerber Prods. Co., 552 F.3d 934, 938
(9th Cir.2008). If an alleged misrepresentation
would not deceive a reasonable consumer or
amounts to mere puffery, then the claim may be
dismissed as a matter of law. Haskell v. Time, Inc.,
857 F.Supp. 1392, 1399 (E.D.Cal.1994).
B. No Material Changes From the Dismissed

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Second Amended Complaint.
Judge Fogel held that plaintiffs had not shown
why a reasonable consumer would be deceived by
the allegedly misleading advertisements. For reasons already discussed, the advertisements and specifications could not be understood to represent or
promise that the iPad would operate without interruption in the specific environmental conditions under which it allegedly tended to shut down.
Plaintiffs have not alleged any new information in
their operative pleading that remedies this deficiency.
Plaintiffs still fail to explain how they could
reasonably rely on the temperature specifications to
conclude that the iPad would never shut down within the specified ambient temperature range. As
already discussed, the temperature specifications
did not purport to describe fully the environmental
conditions under which the device would operate
without interruption.

4. MOTION TO STRIKE CLASS ALLEGATIONS.
Because this order is granting Apple's motion
to dismiss the entire pleading, its motion to strike
plaintiffs' class allegations is moot.
CONCLUSION
Plaintiffs have failed to allege any new material facts in their third amended complaint. As
warned in the previous order, plaintiffs will not
have a fourth chance. Because plaintiffs have failed
to remedy the pleading deficiencies previously
identified, the third amended complaint is DISMISSED WITHOUT LEAVE TO AMEND.
*5 IT IS SO ORDERED.
N.D.Cal.,2011.
Baltazar v. Apple Inc.
Slip Copy, 2011 WL 6747884 (N.D.Cal.)
END OF DOCUMENT

The commercial contained only fleeting images
of the iPad being used outdoors, and none of these
appeared to be in direct sunlight. Plaintiffs do not
explain how they reasonably could rely on the images in the commercial as a basis for believing that
the iPad could be used for an extended period in the
sun. Plaintiffs claim that they relied on the commercial to conclude that the device would operate
“outdoors,” or “under the conditions in the advertisement,” (Third Amd. Compl. ¶ 35) but they allege
only that the device fails to operate without interruption in a limited subset of outdoor conditions.
None of the named plaintiffs claims to have relied on Apple's statement that the iPad can be used
“just like a book,” which was mere puffery. In light
of the clear disclaimers associated with the web
video, plaintiffs have not alleged sufficient facts to
support a conclusion that reliance upon any representations made in that video is reasonable.
Plaintiffs' UCL claim fails because they did not
show why a reasonable consumer would be deceived by the allegedly misleading materials.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.