Minkler v. Apple Inc

Filing 24

MOTION to Dismiss Complaint filed by Apple Inc. Motion Hearing set for 7/18/2014 09:00 AM in Courtroom 4, 5th Floor, San Jose before Hon. Edward J. Davila. Responses due by 3/17/2014. Replies due by 3/24/2014. (Attachments: # 1 Proposed Order)(Collins, Joseph) (Filed on 3/3/2014)

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PAUL J. HALL (SBN 066084)
[e-mail]
ALEC CIERNY (SBN 275230)
[e-mail]
DLA PIPER LLP (US)
555 Mission Street, Suite 2400
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
JOSEPH COLLINS (Admitted Pro Hac Vice)
[e-mail]
DLA PIPER LLP (US)
203 North LaSalle Street, Suite 1900
Chicago, IL 60601-1293
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
Apple Inc.
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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NANCY ROMINE MINKLER,
Individually and on Behalf of All Others
Similarly Situated,
Plaintiffs,
v.

CASE NO. 5:13-cv-05332-EJD
DEFENDANT APPLE INC.’S NOTICE OF
MOTION AND MOTION TO DISMISS
COMPLAINT
(FEDERAL RULES OF CIVIL
PROCEDURE RULES 12(B)(6) AND 9(B))

APPLE INC.,
Defendant.

DATE:
JULY 18, 2014
TIME:
9:00 A.M.
COURTROOM: 4

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DEFENDANT’S MOTION TO DISMISS COMPLAINT -- CASE NO. 5:13-cv-05332-EJD
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NOTICE OF MOTION AND MOTION

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that on July 18, 2014 at 9:00 A.M., or as soon thereafter as

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this matter may be heard before the Honorable Edward J. Davila in Courtroom 4 of the above-

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entitled Court located at 280 South 1st Street, San Jose, California 95113, Defendant Apple Inc.

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(“Apple”) will and hereby does move to dismiss the Complaint of Plaintiff Nancy Romine

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Minkler (“Plaintiff”) under Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure.

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Defendant seeks dismissal of the Complaint under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, on the grounds that:
1.

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Plaintiff fails to plead in Counts I and II that she met the pre-suit demand
requirement set forth in Cal. Comm. Code § 2607.

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2.

Count I fails to state a claim for breach of express warranty.

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3.

Count II fails to state a claim for breach of implied warranty.

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4.

Count III fails to state a claim for violation of the Magnuson Moss Warranty Act

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(“MMWA”).
5.

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required by Rule 9(b) of the Federal Rules of Civil Procedure.
6.

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7.

Count V fails to state a claim for violation of the California False Advertising Law
(“FAL”), Cal. Bus. & Profs. Code § 17500, et seq.

8.

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Count IV fails to state a claim for violation of § 1770 of the California Consumers
Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.

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Plaintiff fails to plead her claims sounding in fraud with the level of particularity

Count VI fails to state a claim for violation of the California Unfair Competition
Law (“UCL”), Cal. Bus. & Profs. Code § 17200, et seq.

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Count VII alleging negligent misrepresentation fails to state a claim under
California’s economic loss doctrine.

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This Motion is based on this Notice of Motion and Motion of Apple, the supporting

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Memorandum of Points and Authorities, all pleadings and papers on file in this case, all matters

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of which this Court may take judicial notice, and the arguments of counsel.

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Respectfully submitted,

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Dated: March 3, 2014

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DLA PIPER LLP (US)
By:
/s/ Joseph Collins
JOSEPH COLLINS
Attorneys for Defendant
APPLE INC.

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PAUL J. HALL (SBN 066084)
[e-mail]
ALEC CIERNY (SBN 275230)
[e-mail]
DLA PIPER LLP (US)
555 Mission Street, Suite 2400
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
JOSEPH COLLINS (Admitted Pro Hac Vice)
[e-mail]
DLA PIPER LLP (US)
203 North LaSalle Street, Suite 1900
Chicago, IL 60601-1293
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
Apple Inc.
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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NANCY ROMINE MINKLER,
Individually and on Behalf of All Others
Similarly Situated,
Plaintiffs,
v.

Defendant.

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DEFENDANT APPLE INC.’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS COMPLAINT
(FEDERAL RULES OF CIVIL
PROCEDURE RULES 12(B)(6) AND 9(B))

APPLE INC.,

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CASE NO. 5:13-cv-05332-EJD

DATE:
JULY 18, 2014
TIME:
9:00 A.M.
COURTROOM: 4

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DLA P IPER LLP (US)

DEFENDANT’S MPA ISO MOTION TO DISMISS COMPLAINT -- CASE NO. 5:13-cv-05332-EJD

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TABLE OF CONTENTS

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Page
I.
II.

INTRODUCTION AND STATEMENT OF ISSUES TO BE DECIDED ......................... 1
STATEMENT OF RELEVANT FACTS ........................................................................... 2
A.
The iPhone 5 ........................................................................................................... 2
B.
The Maps Licensing Agreement ............................................................................. 3
C.
Apple Works To Improve Maps ............................................................................. 5
D.
Statements Relied On By Plaintiff .......................................................................... 6
E.
Other Statements Referenced In The Complaint .................................................... 6
F.
Plaintiff’s Two-Day Experience With Apple Maps ................................................ 7

III.

LEGAL STANDARD ......................................................................................................... 7

IV.

ARGUMENT ...................................................................................................................... 8
A.
Plaintiff’s Warranty Claims In Counts I-III Fail To State A Claim for
Relief ....................................................................................................................... 8
1.
Plaintiff Fails To Plead That She Met The Pre-Suit Demand
Requirement In § 2607 Of The California Commercial Code .................... 8
2.
Plaintiff Fails To State A Claim For Breach Of Express Warranty ............ 9
a.
The Hardware Warranty Does Not Extend To Maps ...................... 9
b.
Plaintiff Pleads Insufficient Facts To Present A Valid
Hardware Warranty Claim ............................................................ 10
c.
Plaintiff Fails To Identify Any Other Express Warranty .............. 11

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3.

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B.

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3.

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Plaintiff Fails To State A Claim For Breach Of Implied Warranty .......... 12
a.
Plaintiff Fails To Allege That The Fundamental Purpose Of
The iPhone 5 Was Navigational Capability .................................. 13
4.
Plaintiff Fails To State A Claim For Violation Of The MMWA .............. 14
Counts IV-VII Fail To State A Claim For Relief .................................................. 14
1.
Plaintiff Fails To State A Claim Under The CLRA .................................. 16
a.
Plaintiff Fails To Plead The Requisite Elements Of A
CLRA Claim ................................................................................. 16
b.
The CLRA Does Not Apply To Software ..................................... 17
2.
Plaintiff Fails To State A Claim Under The FAL ..................................... 18

V.

Plaintiff Fails To State A Claim Under The UCL .................................... 18
a.
Plaintiff Fails To Plead A “Fraudulent” Business Practice ........... 19
b.
Plaintiff Fails To Plead An “Unfair” Business Practice ............... 19
c.
Plaintiff Fails To Plead An “Unlawful” Business Practice ........... 20
4.
Plaintiff’s Negligent Misrepresentation Claim Fails To State A
Claim For Relief ........................................................................................ 20
CONCLUSION ................................................................................................................. 22

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TABLE OF AUTHORITIES

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Page

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CASES

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Alvarez v. Chevron Corp.,
656 F.3d 925 (9th Cir. 2011)..................................................................................................... 8

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Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................................ 7, 11
Ayala v. World Savings Bank, FSB,
616 F. Supp. 2d 1007 (C.D. Cal. 2009)................................................................................... 20
Baltazar v. Apple Inc.,
No. C 10-03231-WHA, 2011 WL 6747884 (N.D. Cal. Dec, 22, 2011) ................................. 15
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................. 7
Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.,
20 Cal.4th 163 (1999) ....................................................................................................... 18, 20
Clemens v. DaimlerChrysler Corp.,
534 F.3d 1017 (9th Cir. 2008)................................................................................................. 14
Cooper v. Pickett,
137 F.3d 616 (9th Cir. 1997)................................................................................................... 20
Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048 (9th Cir. 2003) (per curiam) ............................................................................ 22
Ferrington v. McAfee, Inc.,
No. 10-CV-1455, 2010 WL 3910169 (N.D. Cal. Oct. 5, 2010) .............................................. 17
Foman v. Davis,
371 U.S. 178 (1962) ................................................................................................................ 22
Garcia v. Sony Computer Entm’t Am., LLC,
859 F. Supp. 2d 1056 (N.D. Cal. 2012) .................................................................................. 15
In re iPhone 4S Consumer Litig.,
No. 412-cv-01127-CW, 2013 WL 3829653 (N.D. Cal. July 23, 2013) .................................. 18
In re iPhone 4S Consumer Litig.,
No. 412-cv-01127-CW, 2014 WL 589388 (N.D. Cal. Feb. 14, 2014) ................................... 15
In re iPhone Application Litig.,
No. 11-MD-2250, 2011 WL 4403963 (N.D. Cal. Sept. 20, 2011) ......................................... 17
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TABLE OF AUTHORITIES
(continued)

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J'Aire Corp. v. Gregory,
24 Cal.3d 799 (Cal. 1979) ....................................................................................................... 21
Janda v. T-Mobile USA, Inc.,
378 Fed.Appx. 705 (9th Cir. 2010) ......................................................................................... 20
Kalitta Air, LLC v. Cent. Tex. Airborne Sys., Inc.,
315 F. App’x 603 (9th Cir. 2008) ........................................................................................... 21
Kearns v. Ford Motor Co.,
567 F.3d 1120 (9th Cir. 2009)........................................................................................... 14, 15
Lee v. City of Los Angeles,
250 F.3d 668 (9th Cir. 2001)..................................................................................................... 7
Love v. United States,
915 F.2d 1242 (9th Cir. 1988)................................................................................................... 7
Maneely v. Gen. Motors Corp.,
108 F.3d 1176 (9th Cir. 1997)................................................................................................. 11
Marder v. Lopez,
450 F.3d 445 (9th Cir. 2006)..................................................................................................... 2
Maxwell v. Unilever v. U.S., Inc.,
No. 5:12-cv-01736-EJD, 2013 WL 1435232 (N.D. Cal. Apr. 9, 2013) .................................. 15
McKinney v. Google, Inc.,
No. 5:10-cv-01177-EJD, 2011 WL 3862120 (N.D. Cal. Aug. 30, 2011) ............................... 15
Mendiondo v. Centinela Hosp. Med. Ctr.,
521 F.3d 1097 (9th Cir. 2008)................................................................................................... 7
Platt Elec. Supply, Inc. v. EOFF Elec., Inc.,
522 F.3d 1049 (9th Cir.2008)............................................................................................ 14, 20
Robinson Helicopter Co. v. Dana Corp.,
34 Cal. 4th 979 (Cal. 2004) ..................................................................................................... 21
Samura v. Kaiser Foundation Health Plan, Inc.,
17 Cal. App. 4th 1284 (1993).................................................................................................. 20
Spiegler v. Home Depot U.S.A., Inc.,
552 F. Supp. 2d 1036 (C.D. Cal. 2008)................................................................................... 20

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TABLE OF AUTHORITIES
(continued)

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Stearns v. Ticketmaster,
655 F.3d 1013 (9th Cir. 2011), cert. denied (April 23, 2012) ................................................. 19
Ticconi v. Blue Shield of Cal.,
160 Cal. App. 4th 528 (2008).................................................................................................. 19
Tietsworth v. Sears,
720 F. Supp. 2d 1123 (N.D. Cal. 2010) .................................................................................. 13
Walker v. Countrywide Home Loans, Inc.,
98 Cal. App. 4th 1158 (2002).................................................................................................. 20
Weinstat v. Dentsply Int’l., Inc.,
180 Cal. App. 4th 1213 (2010)................................................................................................ 11
Williams v. Gerber Prods. Co.,
552 F.3d 934 (9th Cir. 2008)................................................................................................... 16
Wofford v. Apple Inc.,
No. 11-CV-0034, 2011 WL 5445054 (S.D. Cal. Nov. 9, 2011) ............................................. 17
STATUTES
18 U.S.C. § 2301(d)(1).................................................................................................................. 14
Cal. Bus. & Prof. Code § 17200 ................................................................................................... 18

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Cal. Bus. & Prof. Code § 17500 ................................................................................................... 18

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Cal. Civ. Code § 1770 ............................................................................................................... 9, 17

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Cal. Civ. Code § 1770(a)............................................................................................................... 16

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Cal. Comm. Code § 2134(2)(c) ..................................................................................................... 13

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Cal. Comm. Code § 2313(1) ......................................................................................................... 11

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Cal. Comm. Code § 2314 .............................................................................................................. 12

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Cal. Comm. Code § 2316 .............................................................................................................. 12
Cal. Comm. Code § 2607 ................................................................................................................ 8
California Consumers Legal Remedies Act § 1770(a)(7) ............................................................. 16

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TABLE OF AUTHORITIES
(continued)

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Page

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RULES

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Fed. R. Civ. P. 8 ............................................................................................................................ 17

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Fed. R. Civ. P. 8(a).............................................................................................................. 7, 11, 16

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Fed. R. Civ. P. 12(b)(6) ................................................................................................................... 7
Fed. R. Civ. P. Rule 9(b) ....................................................................... 1, 14, 15, 16, 17, 18, 20, 21

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION AND STATEMENT OF ISSUES TO BE DECIDED
Plaintiff complains that the Apple Maps feature on her iPhone 5 did not operate perfectly

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after two days of use. Her claimed dissatisfaction, however, does not in itself create a legal cause

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of action. Apple never promised to Plaintiff - or anyone else - that Maps would operate without

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fail. To the contrary, Apple's express warranty did not extend to Maps, it expressly disclaimed

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any and all express and implied warranties regarding its performance, and it specifically licensed

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the Maps software "as-is." Plaintiff chose to accept these terms, and does not allege that she

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refused the warranty and returned her iPhone 5 for a full refund, as allowed under Apple’s

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warranty. As such, Plaintiff's warranty claims in Counts I-III fail as a matter of law. Plaintiff's

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remaining CLRA, UCL, FAL and negligent misrepresentation claims in Counts IV-VII similarly

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fail, because she does not point to any statement made by Apple remotely suggesting that Maps

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would operate error-free. To the contrary, one of the few statements Plaintiff saw prior to

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purchasing her iPhone was a letter from Apple's CEO apologizing for "falling short" with Maps,

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and recommending that consumers download other free maps applications on their Apple devices

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while Apple works to improve Maps. Thus, any belief by Plaintiff that Maps was perfect or

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error-free was unreasonable as a matter of law. Put simply, Plaintiff's entire theory rests on a

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promise that was never made. The Complaint should be dismissed in its entirety without leave to

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amend.

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The Court must decide whether Plaintiff (1) alleges a breach of warranty claim where the

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allegedly defective software is not covered under the applicable hardware warranty, and the

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hardware warranty disclaims all other warranties, both express and implied; (2) states claims for

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violation of the CLRA, FLA, UCL or negligent misrepresentation where Apple never made a

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false or misleading statement suggesting that Maps would operate without fail; and (3) pleads her

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claims against Apple with the level of particularity required by Rule 9(b) of the Federal Rules of

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Civil Procedure.

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II.

STATEMENT OF RELEVANT FACTS

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A.

The iPhone 5.

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Apple released the Apple iPhone 5 on September 21, 2012. (Complaint, Dkt. No. 1, at

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¶ 17.) The iPhone 5 combines a mobile phone, a portable digital music and media player, and an

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internet communication device into a single hand-held product. (Id. at ¶¶ 22, 24.) The iPhone 5

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came with a limited, one-year hardware warranty (“Hardware Warranty”) that covers the iPhone’s

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hardware against defects in materials and workmanship for a period of one (1) year from the date

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of original retail purchase by the end-user purchaser. (Id. at ¶ 43; see also Declaration of Scott

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Maier (“Maier Decl.”) Ex. 1(a-b), and Request for Judicial Notice (“RJN”).)1 However, the

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Hardware Warranty does not cover any software installed on the iPhone:
WHAT IS NOT COVERED BY THIS WARRANTY?
This Warranty does not apply to any non-Apple branded hardware products or
any software, even if packaged or sold with Apple hardware…. Please refer to the
licensing agreement accompanying the software for details of your rights with
respect to its use. Apple does not warrant that the operation of the Apple Product
will be uninterrupted or error-free.
(Id. (emphasis added).)
Under the Hardware Warranty, Plaintiff was free to return her iPhone for a refund if she
did not agree to its terms:
IMPORTANT: BY USING YOUR iPHONE, iPAD or iPOD PRODUCT YOU
ARE AGREEING TO BE BOUND BY THE TERMS OF THE APPLE ONE (1)
YEAR LIMITED WARRANTY (“WARRANTY”) AS SET OUT BELOW. DO
NOT USE YOUR PRODUCT UNTIL YOU HAVE READ THE TERMS OF
THE WARRANTY. IF YOU DO NOT AGREE TO THE TERMS OF THE
WARRANTY, DO NOT USE THE PRODUCT AND RETURN IT WITHIN THE
RETURN PERIOD STATED IN APPLE’S RETURN POLICY (FOUND AT
www.apple.com/legal/sales_policies/) TO THE APPLE OWNED RETAIL
STORE OR THE AUTHORIZED DISTRIBUTOR WHERE YOU PURCHASED
IT FOR A REFUND.
(Id.) The Hardware Warranty states in capitalized typeface that it is exclusive and in lieu of all

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A court may consider unattached evidence on which the complaint “necessarily relies” if: (1) the
complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party
questions the authenticity of the document. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Plaintiff
specifically quotes portions of the Hardware Warranty in paragraph 43 of the Complaint and references the
Hardware Warranty repeatedly throughout her pleading.

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other oral or written warranties, express or implied:

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TO THE EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE
REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL,
WRITTEN, STATUTORY, EXPRESS OR IMPLIED. APPLE DISCLAIMS ALL
STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR
LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW.

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(Id.)
In the event of a hardware defect, Plaintiff was required to submit a warranty claim to
Apple during the Warranty Period, and Apple would either “(i) repair the Apple Product using

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new or previously used parts …, (ii) replace the Apple Product with a device that is at least

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functionally equivalent to the Apple Product …, or (iii) exchange the Apple Product for a refund

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of your purchase price.” (Id.) The Hardware Warranty also disclaims Apple’s liability for

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“direct, special, incidental, indirect or consequential damages.” (Id.)

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B.

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Apple’s App Store has over 700,000 apps for the iPhone. (Complaint, at ¶ 6.) One of

The Maps Licensing Agreement.

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those apps is Apple Maps, a navigation service that works on any Apple device (not just the

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iPhone 5) supporting iOS 6 or later. (See Id., at ¶ 1.) As expressly referenced in the Hardware

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Warranty, the licensing agreement covering Maps is the Apple iOS Software Licensing

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Agreement (“Maps License Agreement”). (Maier Decl., Ex. 2, RJN.) Paragraph 5(e) of the Maps

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License Agreement states that Apple does not guarantee the accuracy of Maps, and it should not

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be relied upon where precise location information is needed:

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Neither Apple nor any of its content providers guarantees the availability,
accuracy, completeness, reliability, or timeliness of stock information, location
data or any other data displayed by any Services…. Location data provided by any
Services, including the Apple Maps service, is provided for basic navigational
and/or planning purposes only and is not intended to be relied upon in situations
where precise location information is needed or where erroneous, inaccurate, timedelayed or incomplete location data may lead to death, personal injury, property or
environmental damage.
(Id. at ¶ 5(e).)

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In Paragraph 7.3 of the Maps License Agreement, Apple states in capitalized typeface that

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Maps is provided “as is,” “as available,” and “without warranty of any kind,” and disclaims all

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implied warranties, including the implied warranty of “merchantability” and “fitness for a

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particular purpose:”

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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
iOS SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND "AS
AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY
KIND, AND APPLE AND APPLE'S LICENSORS (COLLECTIVELY
REFERRED TO AS "APPLE" FOR THE PURPOSES OF SECTIONS 7 AND 8)
HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH
RESPECT TO THE iOS SOFTWARE AND SERVICES, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD
PARTY RIGHTS.

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(Id. at ¶ 7.3.) Apple further states in Paragraph 7.4 that it does not warrant that Maps “will be

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uninterrupted or error-free,” or that defects in Maps will be corrected:

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APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR
ENJOYMENT OF THE iOS SOFTWARE AND SERVICES, THAT THE
FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED
BY, THE iOS SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT
THE OPERATION OF THE iOS SOFTWARE AND SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL
CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE iOS
SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE iOS
SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD
PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.
INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF
THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY
SERVICES.
(Id. at ¶ 7.4.)
By agreeing to its terms, Plaintiff acknowledged in Paragraphs 7.5 and 7.6 she did not rely

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on any oral or written statements and that Maps was not intended for situations where

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inaccuracies could lead to personal injury or property damage:

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YOU FURTHER ACKNOWLEDGE THAT THE iOS SOFTWARE AND
SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS
OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR
ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR
INFORMATION PROVIDED BY THE iOS SOFTWARE OR SERVICES
COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL
OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION
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THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION
OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE
SUPPORT OR WEAPONS SYSTEMS.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLE
OR AN APPLE AUTHORIZED REPRESENTATIVE SHALL CREATE A
WARRANTY. SHOULD THE iOS SOFTWARE OR SERVICES PROVE
DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR OR CORRECTION.

2
3
4
5
6

(Id. at ¶¶ 7.5, 7.6.)

7

C.

8

Immediately after Apple Maps was launched, users and commentators publicly criticized

9

it. In response to the criticism, Apple issued a statement on September 25, 2012, saying that the

Apple Works To Improve Maps.

10

company is “continuously improving” Maps and “appreciates all the customer feedback.”

11

(Complaint, at ¶ 33.) A few days later, Apple CEO Tim Cook posted a letter on the company’s

12

website apologizing for “falling short” on Maps and suggesting that customers use non-Apple

13

map applications or website while Apple works to improve Maps. (Id.) The September 28, 2012

14

letter, quoted in full at paragraph 33 of the Complaint, states as follows:
To our customers,

15

At Apple, we strive to make world-class products that deliver the best experience
possible to our customers. With the launch of our new Maps last week, we fell
short on this commitment. We are extremely sorry for the frustration this has
caused our customers and we are doing everything we can to make Maps better.
We launched Maps initially with the first version of iOS. As time progressed, we
wanted to provide our customers with even better Maps including features such as
turn-by-turn directions, voice integration, Flyover and vector-based maps. In order
to do this, we had to create a new version of Maps from the ground up.
There are already more than 100 million iOS devices using the new Apple Maps,
with more and more joining us every day. In just over a week, iOS users with the
new Maps have already searched for nearly half a billion locations. The more our
customers use our Maps the better it will get and we greatly appreciate all of the
feedback we have received from you.
While we’re improving Maps, you can try alternatives by downloading map apps
from the App Store like Bing, MapQuest and Waze, or use Google or Nokia maps
by going to their websites and creating an icon on your home screen to their web
app.
Everything we do at Apple is aimed at making our products the best in the world.
We know that you expect that from us, and we will keep working nonstop until
Maps lives up to the same incredibly high standard.
Tim Cook
Apple’s CEO

16
17
18
19
20
21
22
23
24
25
26
27
28

(Id.)
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D.

2

Plaintiff alleges that she saw statements made by Scott Forstall in June of 2012 touting the

Statements Relied On By Plaintiff.

3

new iOS 6 as a “major initiative.” (Id. at ¶ 16.) Plaintiff further alleges that “[s]he chose to

4

upgrade to the iPhone 5 based on representations regarding iOS 6, a substantial part of which was

5

the defective Apple Maps.” (Id. at ¶ 45.)

6

Plaintiff further alleges that “[j]ust prior to the release of Apple’s iPhone 5 on

7

September 21, 2012, [she] visited the Apple website which touted the ‘non-stop work’ of Apple

8

that led to ‘a number of improvements to Maps.’” (Id. at ¶ 17.)2 According to Plaintiff, “[t]hese

9

representations about the new and improved Apple Maps influenced her decision to purchase the

10

iPhone 5.” (Id.)

11

E.

Other Statements Referenced In The Complaint.

12

Plaintiff alleges that she saw the letter from Apple’s CEO apologizing for Maps’ problems

13

before she purchased the iPhone 5. (Id. at ¶ 61.) In paragraph 114 of the Complaint, Plaintiff

14

alleges that “Apple claims to review each application before offering it to its users” and “purports

15

to have implemented app standards,” but she does not provide the time and place of these

16

purported representations. (See Id. at ¶ 114.)

17

In paragraph 109 of the Complaint, Plaintiff alleges that Apple “represented at all relevant

18

times that ‘Apple takes precautions – including administrative, technical, and physical measures –

19

to safeguard [purchaser’s] personal safety.’” The actual statement, found in Apple’s Privacy

20

Policy, however, uses the word “information,” not “safety:” “Apple takes precautions – including

21

administrative, technical, and physical measures – to safeguard your personal information

22

against loss, theft, and misuse, as well as against unauthorized access, disclosure, alteration, and

23

destruction.” (See Maier Decl., Ex. 3 (a-d) (“Apple Privacy Policy”) (emphasis added), RJN.)

24
25
26
27
28

2

As a reference for the quote, Plaintiff cites a link to a Wikipedia article. (Id. at ¶ 17, n.3
(http://en.wikipedia.org/wiki/Maps_(application)).) According to the linked Wikipedia article,
this statement was not made prior to the release of the iPhone 5, but was made by Apple’s CFO
during an October 25, 2012 earnings call held over a month after the release of the iPhone 5 and
“its aforementioned controversies.” (See Declaration of Alec Cierny, Ex. 1, “Updates,” n. 34,
RJN.)
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2

Plaintiff does not allege that she relied on any of the foregoing statements when
purchasing the iPhone 5.

3

F.

4

Tellingly, Plaintiff does not state when and where she purchased her iPhone 5. Plaintiff

Plaintiff’s Two-Day Experience With Apple Maps.

5

alleges only that “approximately two days” after purchasing the iPhone 5, “the Maps Application

6

improperly labeled numerous streets, buildings and landmarks, as well as led her to several

7

incorrect locations.” (Complaint, at ¶ 18.) Plaintiff does not provide specific examples of any of

8

the alleged errors, nor does she allege whether she submitted a valid warranty claim to Apple

9

during the Warranty Period.

10
11

III.

LEGAL STANDARD
Rule 8(a) of the Federal Rules of Civil Procedure requires a plaintiff to plead each claim

12

with sufficient specificity to “give the defendant fair notice of what the ... claim is and the

13

grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

14

(quotations omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if

15

it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “Dismissal

16

under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or

17

sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr.,

18

521 F.3d 1097, 1104 (9th Cir. 2008). The factual allegations “must be enough to raise a right to

19

relief above the speculative level” such that the claim “is plausible on its face.” Twombly, 550

20

U.S. at 556–57.

21

The court must generally accept as true all “well-pleaded factual allegations.” Ashcroft v.

22

Iqbal, 556 U.S. 662, 664 (2009). The court must also construe the alleged facts in the light most

23

favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However,

24

the court may consider material submitted as part of the complaint or relied upon in the

25

complaint, and may also consider material subject to judicial notice. See Lee v. City of Los

26

Angeles, 250 F.3d 668, 688–69 (9th Cir. 2001) (“[M]aterial which is properly submitted as part of

27

the complaint may be considered.”); Twombly, 550 U.S. at 555. But “courts are not bound to

28

accept as true a legal conclusion couched as a factual allegation.” Id.
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IV.

ARGUMENT

2

The common flaw permeating all seven Counts of Plaintiff’s Complaint is the absence of

3

any specific statement by Apple representing that Maps would operate error-free. Plaintiff cites

4

no such statement to support her warranty claims or misrepresentation claims. Moreover, the

5

Apple Warranty and governing Maps License Agreement specifically disclaim any warranty for

6

the accuracy and reliability of Maps. As for the statements she cites throughout her pleading,

7

Plaintiff fails to identify the particular circumstances surrounding the statements and the

8

relevance, if any, of these statements to her purchasing decisions. For any and all of the

9

following reasons, the Court should grant Apple’s motion to dismiss without leave to amend.

10

A.

Plaintiff’s Warranty Claims In Counts I-III Fail To State A Claim for Relief.

11

As set forth below, Plaintiff’s warranty claims under the California Commercial Code are

12

flawed for multiple reasons. First, Plaintiff failed to meet the pre-suit demand requirement, and

13

such failure forever bars her claims. In addition, the Hardware Warranty that forms the basis of

14

her claims does not cover Maps, and the governing Maps License Agreement provides the

15

software “as is,” with no express or implied warranties of any kind. In sum, Apple never

16

expressly or impliedly warranted the performance or utility of Maps. Absent any such warranty,

17

her claims fail as a matter of law.

18

1.

19
20

Plaintiff Fails To Plead That She Met The Pre-Suit Demand
Requirement In § 2607 Of The California Commercial Code.

Under § 2607 of the California Commercial Code, which governs Plaintiff’s claims for

21

breach of express and implied warranties, a “buyer must, within a reasonable time after he

22

discovers or should have discovered any breach, notify the seller of breach or be barred from any

23

remedy.” Cal. Comm. Code § 2607. Plaintiff fails to allege anywhere in the Complaint that she

24

provided pre-suit notice to Apple regarding an alleged breach of an express or implied warranty

25

within a reasonable time after she discovered the breach. Indeed, Plaintiff even fails to state the

26

dates that she purchased the product and the date that she discovered the breach. As a result of

27

this pleading deficiency, Plaintiff is barred from any remedy under § 2607, and Counts I-III

28

should be dismissed without leave to amend. See Alvarez v. Chevron Corp., 656 F.3d 925, 932
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(9th Cir. 2011) (“To avoid dismissal of a breach of contract or breach of warranty claim in

2

California, ‘[a] buyer must plead that notice of the alleged breach was provided to the seller

3

within a reasonable time after discovery of the breach.’”.)3

4
5

2.

Plaintiff Fails To State A Claim For Breach Of Express Warranty.

Even if Plaintiff satisfied the pre-suit notice requirement, she has no claim for breach of

6

express warranty. The Hardware Warranty that Plaintiff claims was breached does not cover

7

Maps, and refers Plaintiff to the Maps Licensing Agreement. The Maps Licensing Agreement in

8

turn disclaims any and all express warranties. Moreover, essential facts required for a breach of

9

express warranty, i.e., a guarantee, and a breach of that guarantee, as well as dates of the purchase

10

and the purported breach, are nonexistent. Accordingly, her claims fail as a matter of law.

11

a.

The Hardware Warranty Does Not Extend To Maps.

12

Plaintiff does not allege the existence of any defects in the iPhone hardware. She

13

complains instead of defects in the iPhone software, i.e., Maps. The Hardware Warranty forming

14

the basis of Count I specifically states, however, that it does not cover “software” included on the

15

iPhone:

16
17
18
19
20

WHAT IS NOT COVERED BY THIS WARRANTY?
This Warranty does not apply to any non-Apple branded hardware products or
any software, even if packaged or sold with Apple hardware…. Software
distributed by Apple with or without the Apple brand (including, but not limited to
system software) is not covered by this Warranty. Please refer to the licensing
agreement accompanying the software for details of your rights with respect to its
use. Apple does not warrant that the operation of the Apple Product will be
uninterrupted or error-free.

21

(Maier Decl., Ex. 1(a-b) (emphasis added), RJN.) Apple cannot be held liable for a “software”

22

warranty that it never provided and specifically disclaimed.

23
24
25
26
27
28

Furthermore, the “licensing agreement accompanying the software,” i.e., the Maps
License Agreement, states that Apple does not guarantee the “availability, accuracy,
3

In paragraph 88 of the Complaint, Plaintiff alleges that she sent to Apple “notice in writing by
certified mail of the particular violations of §1770 of the CLRA,” but does not state when she sent the
notice, whether she notified Apple of the alleged breaches of warranty in the letter, and whether the letter
was sent a reasonable time after discovering the alleged breaches of warranty. Indeed, without Plaintiff
alleging when she purchased the iPhone 5 or experienced the alleged breaches of warranty, it is impossible
to discern from this allegation whether she satisfied the pre-suit notice requirement.

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completeness, reliability, or timeliness” of Maps, and it should not be relied upon where “precise

2

location information is needed or where erroneous, inaccurate, time-delayed or incomplete

3

location data may lead to death, personal injury, property or environmental damage.” (See Id., at

4

Ex. 2, RJN.) Under the Maps License Agreement, Apple disclaims all express warranties

5

regarding Maps, providing Maps “as is,” “as available,” and “without warranty of any kind.” (Id.

6

at ¶ 7.3, RJN.) Apple further states that it does not warrant that Maps “will be uninterrupted or

7

error-free,” or that defects in Maps will be corrected. (Id. at ¶ 7.4, RJN.)

8
9
10

Plaintiff accepted these terms when she purchased and used the iPhone 5. In doing so, she
has no legal basis to declare the existence of an express warranty from Apple covering Maps
under the Hardware Warranty. Count I should be dismissed without leave to amend.4

11

b.

12
13

Plaintiff Pleads Insufficient Facts To Present A Valid Hardware
Warranty Claim.

In addition to being legally deficient, Plaintiff’s claim is factually deficient. Plaintiff

14

alleges in Count I that “Apple issued written warranties to Plaintiff [] wherein [Apple] warranted

15

that its Apple Devices were free of defects in materials and workmanship.” (Complaint, at ¶ 60.)

16

Plaintiff further alleges that Apple’s purported failure to cure the alleged defects in Maps

17

“breaches its one year warranty, which ‘warrants this Apple-branded hardware product against

18

defects in materials and workmanship under normal use for a period of one (1) year from the date

19

of retail purchase by the original end user purchaser (‘Warranty Period’).” (Id. at ¶ 43 (quoting

20

language from the Hardware Warranty).)5 Because essential key facts are missing from

21

Plaintiff’s pleading, it is impossible to determine whether the terms of the one-year Hardware

22

Warranty were in fact breached. For example, the Complaint fails to state when and where

23
24
25
26
27
28

4

Plaintiff further alleges that “[a]s a result of Defendant’s breach of the warranty, Plaintiff and the
Class have suffered economic losses and other general, consequential and specific damages,” (Complaint,
at ¶ 71), but the Hardware Agreement explicitly disclaims any liability for such damages. (See Maier
Decl., Ex. 1(a-b), RJN.)
5

Plaintiff also alleges that “Apple has charged consumers to repair or replace defective
applications or left them no option but to seek repair from a less-expensive third-party repair provider,
thereby invalidating the warranty issued by Apple going forward.” (Id. at ¶ 42.) She does not allege,
however, that Apple charged her to repair or replace Maps, or that she sought repair from a third party.

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Plaintiff purchased her iPhone 5; whether the alleged breach of the Hardware Warranty occurred

2

during the Warranty Period; and whether she submitted a valid warranty claim to Apple during

3

the Warranty Period. Rule 8(a) requires, at a minimum, these essential facts to state a plausible

4

claim that Plaintiff is entitled to relief for an alleged breach of the one-year Hardware Warranty.

5

“A formulaic recitation of a cause of action with conclusory allegations is not sufficient.” Iqbal,

6

556 U.S. at 678.

7
8
9

c.

Plaintiff Fails To Identify Any Other Express Warranty.

In addition to the Hardware Warranty, Plaintiff also claims that she was “exposed” to
statements (i) touting the new iOS 6 as a “major initiative,” and (ii) providing “persistent

10

encouragement” by Apple to stick with its products because “the more our customers use our

11

Maps the better it will get.” (Id. at ¶ 61.) Based on these two statements, Plaintiff alleges that

12

Maps “did not perform as [Apple] represented.” (Id. at ¶ 77.) These statements are non-

13

actionable in warranty for two independent reasons.

14

First, as set forth above, the Hardware Warranty clearly and conspicuously states that it is

15

the exclusive express warranty, and disclaims all other express warranties. (See Maier Decl., Ex.

16

1 (a-b), RJN (“…THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE

17

AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS,

18

WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED.”).) Thus, the

19

Hardware Warranty controls the analysis.

20

Second, neither of these statements satisfies the elements of an express warranty under

21

California law. A breach of express warranty claim requires that: “(1) the seller’s statements

22

constitute an affirmation of fact or promise or a description of the goods; (2) the statement was

23

part of the basis of the bargain; and (3) the warranty was breached.” Weinstat v. Dentsply Int’l.,

24

Inc., 180 Cal. App. 4th 1213, 1227 (2010) (quotations and citations omitted); see also Cal.

25

Comm. Code § 2313(1). A breach of express warranty claim requires that the plaintiff identify a

26

“specific and unequivocal written statement” about the product that constitutes an “explicit

27

guarantee[].” Maneely v. Gen. Motors Corp., 108 F.3d 1176, 1181 (9th Cir. 1997). Neither of

28

these statements constitute an “explicit guarantee” regarding the accuracy or performance of
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Maps. The first statement merely describes iOS 6 – not Maps – as a “major initiative,” and the

2

second statement, using Plaintiff’s own words, was “encouragement” to purchase Apple products.

3

Simply put, these statements do not “guarantee” anything. For any and all of these reasons,

4

Plaintiff’s remaining express warranty claims fail as a matter of law.

5
6

3.

Plaintiff Fails To State A Claim For Breach Of Implied Warranty.

In Count II, Plaintiff alleges that “[b]y operation of Cal. Com. Code § 2314, Defendant

7

impliedly warranted that its devices are merchantable, fit for its ordinary purpose, and free of

8

defects.” (Complaint, at ¶68.) Contrary to Plaintiff’s allegation, Apple’s Hardware Warranty,

9

which Plaintiff quotes and references repeatedly throughout her Complaint, prominently and

10

conspicuously disclaimed all implied warranties, including implied warranties of

11

“merchantability,” “fitness for a particular purpose” and “warranties against hidden or latent

12

defects:”

13
14
15
16
17
18
19

TO THE EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE
REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL,
WRITTEN, STATUTORY, EXPRESS OR IMPLIED. APPLE DISCLAIMS ALL
STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR
LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW.
(Maier Decl., Ex. 1(a-b), RJN.)
The California Commercial Code permits sellers to modify or exclude implied warranties,

20

subject to certain requirements. Cal. Comm. Code § 2316. Apple may properly disclaim the

21

implied warranty of merchantability as long as the disclaimer “mention[s] merchantability” and is

22

“conspicuous.” Id. at § 2316(2). Apple may properly disclaim the implied warranty of fitness as

23

long as the disclaimer is in writing and is “conspicuous.” Id. In addition, “all implied warranties

24

are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common

25

understanding calls the buyer's attention to the exclusion of warranties and makes plain that there

26

is no implied warranty.” Id.

27
28

Here, Apple conspicuously disclaimed all implied warranties in both the iPhone 5’s
Hardware Warranty and the Maps License Agreement. The disclaimers were in ALL CAPS and
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specifically disclaimed implied warranties of merchantability and fitness. Furthermore, the Maps

2

License Agreement stated that Maps was provided “as is" and “as available,” “with all faults and

3

without warranty of any kind.” Because Apple’s disclaimer of all implied warranties meets the

4

California Commercial Code’s requirements, Count II fails as a matter of law.

5

a.

6
7

Plaintiff Fails To Allege That The Fundamental Purpose Of The
iPhone 5 Was Navigational Capability.

The implied warranty of merchantability provides, in part, that the goods must be “fit for

8

the ordinary purposes for which such goods are used.” Cal. Comm. Code § 2134(2)(c). However,

9

“[t]he mere manifestation of a defect by itself does not constitute a breach of the implied warranty

10

of merchantability. Instead, there must be a fundamental defect that renders the product unfit for

11

its ordinary purpose.” Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1142 (N.D. Cal. 2010)

12

(quotations and citations omitted).

13

Plaintiff alleges that “[t]he iPhone 4 [sic] cannot perform its ordinary purpose because

14

Apple Maps does not accurately direct the user to the desired destination, does not accurately

15

depict landmarks, etc., when used in the ordinary course and for the ordinary purpose for which

16

devices were sold.” (Complaint, at ¶ 69.) Plaintiff also concedes, however, that the iPhone 5 is a

17

multi-functional device that combines a phone, a media player, and an internet communication

18

device, and that Apple marketed the availability and utility of over 700,000 apps6 on the App

19

Store:

20

The iPhone combines a mobile phone, an iPod touch, and an internet
communication device into a single hand-held product. The iPhone is therefore
more than simply a phone and Apple’s marketing of the iPhone has focused not on
its ability to make phone calls, but on the availability and utility of third-party
apps.

21
22
23

(Id. at ¶ 24.) Plaintiff does not allege that she used the iPhone 5 solely for navigation. Indeed,

24

Apple offers Maps on iOS 6 devices that do not include phones and other features. Plaintiff does

25

not allege any defects with the phone, media player, internet connection or any of the hundreds of

26

thousands of other Apps available for the iPhone. Plaintiff also fails to allege that she

27
28

6

See Id. at ¶ 6 (“…Apple boasts that the App Store has over 700,000 apps for iPhone and iPod

touch).

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experienced any difficulty installing any other free maps applications available at the Apps Store.

2

Finally, Plaintiff stops short of alleging that Maps does not work at all, or a majority of the time.

3

She simply complains of vague and nonspecific difficulties experienced the first few days with

4

the device. Such allegations of mere inconvenience are insufficient to plead a breach of implied

5

warranty claim.

6
7

4.

Plaintiff Fails To State A Claim For Violation Of The MMWA

The MMWA provides a federal private right of action for state law warranty claims (18

8

U.S.C. § 2301(d)(1)), but does not expand those state law rights. Plaintiff’s claim under the

9

MMWA thus “stand[s] or fall[s] with [her] express and implied warranty claims under state law.”

10

Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008). Here, dismissal of

11

Counts I and II, which insufficiently plead violations of the California Commercial Code, requires

12

the dismissal of Count III for violation of the MMWA.

13

B.

14

It is well-settled in the Ninth Circuit that Rule 9(b)’s heightened pleading standards apply

15

to claims for violations of the CLRA, UCL, FAL and for negligent misrepresentation claims. See,

16

e.g., Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); Platt Elec. Supply, Inc. v.

17

EOFF Elec., Inc., 522 F.3d 1049, 1055 (9th Cir.2008). “While fraud is not a necessary element

18

of a claim …, a plaintiff may nonetheless allege … a unified course of fraudulent conduct and

19

rely entirely on that course of conduct as the basis of that claim. In that event, the claim is said to

20

be ‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading as a whole must satisfy the

21

particularity requirement of Rule 9(b).” Id. at 1126 (quotations and citations omitted). Here,

22

Plaintiff’s claims clearly sound in fraud: “Based on its knowledge or reckless disregard of the

23

facts as detailed herein, Apple was guilty of acting with malice, oppression or fraud.” (Complaint,

24

at ¶ 90 (CLRA claim)); “Apple’s modus operandi constitutes a sharp practice in that Apple knew

25

and should have known that consumers care about the accuracy of maps …” (Id. at ¶ 107 (UCL

26

claim).) Plaintiff’s claims are therefore subject to the heightened pleading requirements of

27

Rule 9(b).

Counts IV-VII Fail To State A Claim For Relief

28
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Plaintiff fails to allege the particular circumstances surrounding the alleged

2

misrepresentations and omissions. Nowhere in the Complaint does she specify any representation

3

made by Apple that Maps would operate error-free or without fail. See McKinney v. Google, Inc.,

4

No. 5:10-cv-01177-EJD, 2011 WL 3862120, at *5 (N.D. Cal. Aug. 30, 2011) (dismissing

5

complaint because plaintiff failed to identify any representation “that the Nexus One would

6

maintain consistent 3G connectivity.”); Baltazar v. Apple Inc., No. C 10-03231-WHA, 2011 WL

7

6747884, at *3 (N.D. Cal. Dec, 22, 2011) (even under “the most liberal pleading standard,” brief

8

depictions of the iPad being used outdoors “cannot be construed as a promise that the device will

9

operate relentlessly outdoors in sunlight.”). To the contrary, Apple expressly informed Plaintiff

10
11

that it would not guarantee the accuracy and reliability of Maps.
Regarding many of the alleged statements referenced in the Complaint, Plaintiff fails to

12

specify when she was exposed to them or which ones she found material. In addition, she fails to

13

specify who made the statements and where and when the statements were made. She also fails

14

to specify how and why the statements were misleading. In sum, Plaintiff fails to articulate the

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“who, what, when, where, and how” of the misconduct alleged. Kearns, 567 F.3d at 1125.

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Plaintiff also fails to specify the particular statements she allegedly relied on when making her

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purchase, as required under these statutory and common law claims. Garcia v. Sony Computer

18

Entm’t Am., LLC, 859 F. Supp. 2d 1056, 1063 (N.D. Cal. 2012); see also Maxwell v. Unilever v.

19

U.S., Inc., No. 5:12-cv-01736-EJD, 2013 WL 1435232, at *2, *5 (N.D. Cal. Apr. 9, 2013)

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(dismissing UCL, FAL, and CLRA claims for failure to satisfy Rule 9(b) where plaintiff did not

21

“unambiguously specify . . . the particular statements Plaintiff allegedly relied on when making

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her purchases”). The pleading of these neutral facts fails to give Apple the opportunity to respond

23

to the alleged misconduct. Accordingly, Counts IV-VII do not satisfy the heightened pleading

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requirements of Rule 9(b) and are therefore subject to dismissal.

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Just weeks ago, Chief Judge Wilken of this Court dismissed without leave to amend a

26

similar claim against Apple regarding the Siri function on the iPhone 4S. In re iPhone 4S

27

Consumer Litig., No. 412-cv-01127-CW, 2014 WL 589388 (N.D. Cal. Feb. 14, 2014). In In re

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iPhone 4S, the plaintiffs alleged that Apple misrepresented that Siri would perform “consistently”
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in understanding user questions, alleging CLRA, FAL, UCL and negligent misrepresentation

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claims. The Court, applying the particularized pleading requirements of Rule 9(b), held that the

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plaintiffs failed to identify any actionable statement and provide the circumstances surrounding

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that statement, and further held under Rule 8(a) that no reasonable consumer would believe that

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Siri would operate perfectly. Id. at **14-16. The same rationale applies here.

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1.

Plaintiff Fails To State A Claim Under The CLRA.

The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or

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practices undertaken by any person in a transaction intended to result or which results in the sale

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or lease of goods or services to any consumer.” Cal. Civ. Code § 1770(a). Specifically, Plaintiff

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alleges that Apple violated § 1770(a)(7) of the CLRA, i.e., “[r]epresenting that goods or services

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are of a particular standard, quality, or grade, or that goods are of a particular style or model, if

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they are of another[.]” For an affirmative statement to be actionable under the CLRA, it must be

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“likely to deceive a reasonable consumer.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938

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(9th Cir. 2008). Plaintiff’s CLRA claim fails as a matter of law.

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a.

Plaintiff Fails To Plead The Requisite Elements Of A CLRA Claim.

In her CLRA claim, Plaintiff alleges that Apple misrepresented that the iPhone 5 “had

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characteristics that it does not actually have.” (Complaint, at ¶ 53(k).) Specifically, Plaintiff

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alleges:

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… Apple has made the following representations, expressly or by implication to
Plaintiff and other members of the Class about the Apple Devices: (i) that Apple
designed the Apple Devices to safely and reliably download and update its apps,
(ii) that the App Store does not permit apps that violate its developer guidelines to
be sold or to be made available for free through the App Store, (iii) that “Apple
takes precautions – including administrative, technical, and physical measures – to
safeguard [purchaser’s] personal safety,” and, (iv) that Apple Maps will improve
as more consumers use it.

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(Id. at ¶ 84.) With the exception of the last statement, Plaintiff fails to identify anywhere in the

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Complaint who made these statements, where and when these statements were made and

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advertised, how and why these statements are false and misleading, whether these statements

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were material, and whether she relied on these statements in purchasing her iPhone 5. The “who,

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what, where, when and how” required under Rule 9(b) are wholly absent. Accordingly, Count IV
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fails to satisfy the heightened pleading requirements of Rule 9(b) and should be dismissed.
It is no wonder that Plaintiff chose not to disclose the circumstances of the alleged third

3

statement (“Apple takes precautions – including administrative, technical, and physical measures

4

– to safeguard [purchaser’s] personal safety.”) The correct statement, found in Apple’s Privacy

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Policy, does not contain the word “safety:” “Apple takes precautions — including administrative,

6

technical, and physical measures — to safeguard your personal information against loss, theft,

7

and misuse, as well as against unauthorized access, disclosure, alteration, and destruction.” (See

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Maier Decl., Ex. 3 (a-d) (emphasis added), RJN.) The Court may disregard Plaintiff’s attempt to

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manufacture a safety disclosure from a privacy disclosure.

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Regarding the last statement, this statement could not have misled Plaintiff to believe that

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Maps was error-free because, as Plaintiff herself acknowledges, it was made directly in response

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to widely reported criticisms of Maps. Apple’s CEO’s letter containing this statement publicly

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apologized for “falling short” on Maps, and recommended that users download alternative maps

14

applications while Apple makes improvements to Maps. (See Complaint, at ¶ 33.) Plaintiff

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admits she read this letter before she purchased her iPhone 5. (Id. at ¶ 61.) Thus, she cannot state

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a plausible claim under Rule 8, let alone satisfy the stringent requirements of Rule 9(b).

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b.

The CLRA Does Not Apply To Software.

The CLRA applies only to “goods” and “services,” not to computer software such as

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Maps. See Cal. Civ. Code § 1770. The CLRA defines “goods” as “tangible chattels bought or

20

leased for use primarily for personal, family, or household purposes,” and defines “services” as

21

“work, labor, and services for other than a commercial or business use.” Id. § 1761(a)-(b). As

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courts in this Circuit have held, software is neither a “good” nor a “service” under these

23

definitions. Wofford v. Apple Inc., No. 11-CV-0034, 2011 WL 5445054, at *2 (S.D. Cal. Nov. 9,

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2011) (“California law does not support Plaintiff’s contention that software is a tangible good or

25

service for the purposes of the CLRA.”); In re iPhone Application Litig., No. 11-MD-2250, 2011

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WL 4403963, at *10 (N.D. Cal. Sept. 20, 2011); (“Software is neither a ‘good’ nor a ‘service’

27

within the meaning of the CLRA.”); Ferrington v. McAfee, Inc., No. 10-CV-1455, 2010 WL

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3910169, at *19 (N.D. Cal. Oct. 5, 2010) (holding that “the software Plaintiffs purchased is not a
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good covered by the CLRA” and “software generally is not a service for purposes of the CLRA”);

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but see In re iPhone 4S Consumer Litig., No. 412-cv-01127-CW, 2013 WL 3829653 at *14 (N.D.

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Cal. July 23, 2013). The Complaint describes and attacks only Apple’s purported representations

4

regarding iPhone 5’s Maps software, and Plaintiff’s claims relate exclusively to the Maps

5

software—not to iPhone 5 itself or any other “good” or “service.” Therefore, the CLRA does not

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apply to Plaintiff’s software-related claims, and her CLRA claim should be dismissed without

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leave to amend.

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2.

Plaintiff Fails To State A Claim Under The FAL.

The FAL makes it unlawful to make or disseminate any “untrue or misleading” statement

10

“in any newspaper or other publication, or any advertising device.” Cal. Bus. & Prof. Code §

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17500. In support of her FAL claim, Plaintiff alleges that Apple made the following false and

12

misleading statements in its advertising for Apple Maps: “Apple has repeatedly advertised that its

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products were safe and secure. Apple has furthered assured consumers that it closely monitors the

14

apps available in the App Store.” (Complaint, at ¶ 92.) Like her deficient CLRA and UCL

15

claims, Plaintiff fails to identify anywhere in the Complaint who made these statements, where

16

and when these statements were made and advertised, how and why these statements are false and

17

misleading, whether these statements were material, and whether she relied on these statements in

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purchasing her iPhone 5. The “who, what, where, when and how” required under Rule 9(b) are

19

wholly absent, thereby providing Apple with insufficient notice and no meaningful opportunity to

20

respond to the alleged misconduct. Accordingly, Count V fails to satisfy the heightened pleading

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requirements of Rule 9(b) and should be dismissed.

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3.

Plaintiff Fails To State A Claim Under The UCL.

The UCL prohibits acts of “unfair competition.” Cal. Bus. & Prof. Code § 17200. Under

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the UCL, “unfair competition” includes “any unlawful, unfair or fraudulent business act or

25

practice and unfair, deceptive, untrue or misleading advertising.” Id. Thus, the UCL creates

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“three varieties of unfair competition – acts or practices which are unlawful, unfair or fraudulent.”

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Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 180 (1999). Plaintiff asserted

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a claim under all three prongs of the UCL, but she has not alleged sufficient facts supporting any
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of these theories.

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a.

Plaintiff Fails To Plead A “Fraudulent” Business Practice.

Like her CLRA claim, to state a claim under the fraudulent prong of the UCL Plaintiff

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must show that “members of the public are likely to be deceived.” Stearns v. Ticketmaster, 655

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F.3d 1013, 1020 (9th Cir. 2011), cert. denied (April 23, 2012) (quotations omitted). Plaintiff once

6

again relies on an unidentified statement by Apple that purportedly guarantees the personal safety

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of its consumers:

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While Apple represented at all times that the Apple Devices were safe and secure;
in actuality, the Maps application guided Plaintiffs to unknown locations. Apple
did not inform purchasers, like Plaintiff, that their Apple Devices may be
vulnerable to mapping fallacies such as: mislabeled restaurants, landmarks, streets,
etc., and publishing inaccurate directions, but instead, represented at all relevant
times that “Apple takes precautions – including administrative, technical, and
physical measures – to safeguard [purchaser’s] personal safety.”
(Complaint, at ¶ 109.)
Again, Plaintiff fails to identify anywhere in the Complaint who made these statements

14

that the iPhone 5 would keep her “safe and secure,” where and when these statements were made

15

and advertised, how and why these statements are false and misleading, whether these statements

16

were material, and whether she relied on these statements in purchasing her iPhone 5. More

17

significantly, however, is the fact that this statement was never made. As set forth above, Apple

18

represented only that it takes measures to safeguard consumer “personal information,” not

19

“personal safety.” (See Maier Decl., Ex. 3 (a-d), RJN.) Plaintiff cannot be misled by a statement

20

that did not exist.

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b.

Plaintiff Fails To Plead An “Unfair” Business Practice.

The test of whether a business practice is “unfair” under the UCL “involves an

23

examination of that practice’s impact on its alleged victim, balanced against the reasons,

24

justifications and motives of the alleged wrongdoer.” Ticconi v. Blue Shield of Cal., 160 Cal.

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App. 4th 528, 539 (2008) (quotations and citations omitted). An “unfair” business practice occurs

26

“when that practice offends an established public policy or when the practice is immoral,

27

unethical, oppressive, unscrupulous or substantially injurious to consumers.” Id.

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Plaintiff does not even attempt to present any facts supporting her conclusory allegation

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that providing a less-than-perfect Maps feature was “immoral, unethical, oppressive,

3

unscrupulous or substantially injurious to consumers.” Moreover, Plaintiff agreed to the terms of

4

the Maps License Agreement, which provided Maps “as-is” and cautioned Plaintiff not to rely on

5

the accuracy of its information. There is nothing “unfair” about the terms of the parties’

6

contracts, and the Plaintiff cannot invoke the UCL to rewrite them. See, e.g., Walker v.

7

Countrywide Home Loans, Inc., 98 Cal. App. 4th 1158, 1176-1177 (2002) (“The ‘unfairness’

8

element of the unfair competition law does not give the courts a general license to review the

9

fairness of contracts.”) (citation omitted); see also Janda v. T-Mobile USA, Inc., 378 Fed.Appx.

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705, 708 (9th Cir. 2010) (same); and Spiegler v. Home Depot U.S.A., Inc., 552 F. Supp. 2d 1036,

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1046 (C.D. Cal. 2008) (“[T]he UCL cannot be used to rewrite [plaintiffs’] contracts or to

12

determine whether the terms of their contracts are fair.”). Indeed, the unfair prong of the UCL

13

“does not give the courts a general license to review the fairness of contracts but rather has been

14

used to enjoin deceptive or sharp practices.” Samura v. Kaiser Foundation Health Plan, Inc., 17

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Cal. App. 4th 1284, 1299 n.6 (1993).

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c.

Plaintiff Fails To Plead An “Unlawful” Business Practice.

A practice is “unlawful” if it violates a law other than the UCL. Cel-Tech, 20 Cal. 4th at

18

180. As discussed herein, Plaintiff fails to plead any violation of law, including the California

19

Commercial Code, MMWA, FAL and CLRA. Thus, Plaintiff is incapable of pleading an

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“unlawful” business practice under the UCL.

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4.

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Plaintiff’s Negligent Misrepresentation Claim Fails To State A Claim
For Relief.

In the Ninth Circuit, tort claims for negligent misrepresentation are subject to the stringent

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pleading standards of Rule 9(b). Platt, 522 F.3d at 1055. Rule 9(b) requires that Plaintiff plead

25

facts such as “time, place, persons, statements, and explanations of why the statements are

26

misleading.” Ayala v. World Savings Bank, FSB, 616 F. Supp. 2d 1007, 1011 (C.D. Cal. 2009).

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In other words, the “who, what, when, where, and how” must be specifically alleged. Cooper v.

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Pickett, 137 F.3d 616, 627 (9th Cir. 1997). Such specificity is lacking here.
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In her claim for negligent misrepresentation, Plaintiff alleges that “Apple claims to review

2

each application before offering it to its users, purports to have implemented app standards, and

3

claims to have created measures to protect the personal safety of its customers.” (Complaint, at

4

¶ 114.) Nowhere in the Complaint, however, does Plaintiff identify when and where Apple

5

purportedly made these alleged representations, when and where Plaintiff saw these alleged

6

representations, or whether Plaintiff even relied on these alleged representations. Plaintiff’s

7

negligent misrepresentation claim therefore fails to satisfy Rule 9(b).

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9

Furthermore, Plaintiff’s claim is legally barred by California’s economic loss doctrine.
Under California law, “[i]n the absence of (1) personal injury, (2) physical damage to property,

10

(3) a ‘special relationship’ existing between the parties, or (4) some other common law exception

11

to the rule, recovery of purely economic loss is foreclosed.” Kalitta Air, LLC v. Cent. Tex.

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Airborne Sys., Inc., 315 F. App’x 603, 605 (9th Cir. 2008) (quoting J'Aire Corp. v. Gregory, 24

13

Cal.3d 799, 804 (Cal. 1979). Put simply, the economic loss doctrine was created to prevent “the

14

law of contract and the law of tort from dissolving one into the other.” Robinson Helicopter Co. v.

15

Dana Corp., 34 Cal. 4th 979, 988 (Cal. 2004) (quotations omitted).

16

Plaintiff fails to allege personal injury or property damage as a result of using Apple

17

Maps, and has not alleged a “special relationship” with Apple. She only alleges that the alleged

18

representations caused her to purchase her iPhone 5, i.e., economic loss: “As a proximate result of

19

Apple’s negligent misrepresentations, Plaintiff [] purchased Apple Devices.” (Id. at ¶ 117.) Thus,

20

Plaintiff’s negligent representation claim is nothing more than an attempt to plead around the

21

parties’ contract that clearly disclaims economic losses. Because Plaintiff cannot allege injury to

22

person or property, Count VII for negligent misrepresentation should be dismissed without leave

23

to amend.

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V.

CONCLUSION
For the reasons set forth above, the Court should dismiss Plaintiff’s Complaint. Dismissal

3

should be without leave to amend because no conceivable amendment could save her claims.

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam)

5

(dismissal without leave to amend appropriate where amendment would be futile) (quoting

6

Foman v. Davis, 371 U.S. 178, 182 (1962)).

7

Respectfully submitted,

8
9

Dated: March 3, 2014

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DLA PIPER LLP (US)
By:

/s/ Joseph Collins
JOSEPH COLLINS
Attorneys for Defendant
APPLE INC.

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