Minkler v. Apple Inc

Filing 31

REPLY (re 24 MOTION to Dismiss Complaint ) in Further Support of Motion to Dismiss Complaint filed byApple Inc. (Collins, Joseph) (Filed on 4/30/2014)

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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 REPLY IN
FURTHER SUPPORT OF 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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TABLE OF CONTENTS

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Page

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I.
II.

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III.

INTRODUCTION .............................................................................................................. 1
ARGUMENT ...................................................................................................................... 5
A.
Plaintiff Fails To Satisfy The “Reasonable Consumer” Standard .......................... 5
B.
The Complaint Fails To Plead A UCL Violation.................................................... 9
C.
Apple’s Statements Do Not Create An Express Warranty ................................... 10
D.
Plaintiff Fails To Establish Pre-Suit Notice .......................................................... 12
CONCLUSION ................................................................................................................. 12

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TABLE OF AUTHORITIES

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Page(s)

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CASES

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Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................. 7

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DLA P IPER LLP (US)
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Davis v. HSBC Bank Nev., N.A.,
691 F.3d 1152 (9th Cir. 2012)................................................................................................... 6
Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048 (9th Cir. 2003) (per curiam) ............................................................................ 12
Foman v. Davis,
371 U.S. 178 (1962) ................................................................................................................ 12
Garcia v. Sony Computer Entm’t Am., LLC,
859 F. Supp. 2d 1056 (N.D. Cal. 2012) .................................................................................. 10
In re American Apparel, Inc. Shareholder Litigation,
855 F. Supp. 2d 1043 (C.D. Cal. 2012)..................................................................................... 7
In re Cornerstone Propane Partners, L.P.,
355 F. Supp.2d 1069 (N.D. Cal. 2005) ..................................................................................... 8
In re iPhone 4S Consumer Litig.,
No. C 12-1127-CW, 2014 WL 589388 (N.D. Cal. Feb. 14, 2014) ....................................... 8, 9
In re West Seal, Inc., Sec. Litig.,
518 F. Supp. 2d 1148 (C.D. Cal. 2007)..................................................................................... 7
Maneely v. Gen. Motors Corp.,
108 F.3d 1176 (9th Cir. 1997)................................................................................................. 11
Newdow v. Congress of the United States of America,
435 F. Supp. 2d 1066 (E.D. Cal. 2006) ..................................................................................... 3
Newdow v. Lefevre,
598 F.3d 638 (9th Cir. 2010)..................................................................................................... 3
Qureshi v. Countrywide Home Loans, Inc., No.
C 09-4198-SBA, 2010 WL 841669 (N.D. Cal. Mar. 10, 2010) ................................................ 3
Stuart v. Cadbury Adams USA, LLC,
458 Fed. Appx. 689 (9th Cir. 2011) ........................................................................................ 10
Walker v. Countrywide Home Loans, Inc.,
98 Cal. App. 4th 1158 (2002).................................................................................................. 10
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TABLE OF AUTHORITIES
(continued)

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Page(s)

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STATUTES

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California Commercial Code § 2607 ............................................................................................ 12

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I.

INTRODUCTION
Plaintiff’s Opposition [Dkt. No. 30] offers nothing but silence in response to the following

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dispositive arguments made by Apple Inc. (“Apple”) in its Memorandum of Points and

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Authorities in Support of its Motion to Dismiss Plaintiff’s Complaint (“MPA”) [Dkt. No. 24]:

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Express and Implied Warranty Claims

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Plaintiff’s claim for breach of express warranty fails because
the one-year warranty (“Hardware Warranty”) that Plaintiff
claims was breached does not cover Maps;

MPA p. 9-10

Plaintiff’s claim for breach of express warranty fails because
the Maps License Agreement that Plaintiff accepted when
purchasing her iPhone 5 disclaims any and all warranties, and
licenses Maps to Plaintiff “as-is,” “as available” and “without
warranty of any kind;”

Id. at 9-10

Plaintiff’s claim for breach of express warranty based on
purported statements outside the Hardware Warranty fail
because the parties agreed in the Maps License Agreement
that “no oral or written information or advice given by Apple
or an Apple representative shall create a warranty;”

Id. at 11-12

Plaintiff’s claim for breach of implied warranty fails because
both the Hardware Warranty and Maps License Agreement
conspicuously and specifically disclaim any and all implied
warranties, including the implied warranties of
merchantability, fitness for a particular purpose and
warranties against hidden or latent defects, as permitted under
the California Commercial Code;

Id. at 12-13

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Plaintiff’s claim for breach of implied warranty fails because
Plaintiff’s vague and nonspecific problems with Maps do not
render the iPhone 5 unusable or unfit for its ordinary purpose;
and

Id. at 13-14

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Plaintiff fails to plead essential facts to support a plausible
breach of express or implied warranty claim, including, inter
alia, when and where she purchased her iPhone 5, when she
discovered the alleged breach, and whether she submitted a
warranty claim to Apple during the warranty period.

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MMWA Claim

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Id. at 10-11

Plaintiff’s MMWA claim fails absent a violation of the
California Commercial Code, which is lacking here.

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Id. at 14

Fraud Based Claims

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Plaintiff’s CLRA, FAL, UCL and negligent misrepresentation
claims (“Fraud-Based Claims”), which are governed by Rule
9(b), fail because Plaintiff fails to present a single oral or
written statement by Apple representing that Maps was free of
defects and error-free;

Id. at 14-16

Plaintiff’s Fraud-Based Claims fail because Plaintiff fails to
plead the circumstances surrounding any oral or written
statement by Apple representing that Maps was free of defects
and error-free, e.g., where and when any such statement was
made (Id.);

Id.

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Plaintiff’s Fraud-Based Claims fail because contrary to
Plaintiff’s assertions, Apple specifically represented in the
Hardware Warranty and Maps License Agreement that
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Apple does not warrant that Maps will be
uninterrupted or error-free,

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Apple does not guarantee the availability, accuracy,
completeness, reliability or timeliness of location data
or any other data provided by Maps, and

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Apple does not guarantee that any defects in Maps
will be corrected.

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Id. at 14-20

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Plaintiff’s negligent misrepresentation claim is barred by
California’s economic loss doctrine.

Id. at 21

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CLRA Claim

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Plaintiff’s CLRA claim fails because the statute covers only
goods and services, and does not cover software such as
Maps.

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Id. at 17-18

FAL Claim

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Plaintiff’s FAL claim fails because she cites no statements by
Apple “in any newspaper or publication, or any advertising
device,” as required under the statute.

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Id. at 18

UCL Claims

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Plaintiff’s UCL claim for a fraudulent practice fails because
she fails to cite any statement by Apple representing that
Maps would protect her personal safety, and the Privacy
Policy relied on by Plaintiff makes no such representation;

Id. at 18-19

Plaintiff’s UCL claim for an unfair practice fails because she
cannot rewrite the terms of the parties’ contracts, which
disclaim any and all warranties regarding Maps; and

Id. at 19-20

Plaintiff’s UCL claim for an unlawful practice fails because
she does not plead a violation of any other law.

Id. at 20

The Court may deem Plaintiff’s silence as an “abandonment of those claims.” Qureshi v.
Countrywide Home Loans, Inc., No. C 09-4198-SBA, 2010 WL 841669, at *6 n. 2 (N.D. Cal.
Mar. 10, 2010); see also Newdow v. Congress of the United States of America, 435 F. Supp. 2d
1066, 1070 n. 5 (E.D. Cal. 2006) (“The court interprets plaintiff's silence as a non-opposition to
defendants' motions [to dismiss] on these claims.”), aff'd. sub nom., Newdow v. Lefevre, 598 F.3d

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638 (9th Cir. 2010). Plaintiff similarly abandoned her product defect and personal safety

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allegations, tacitly conceding that those allegations lack merit.

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The Court is left to address Plaintiff’s sole remaining theory, i.e., that Apple

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misrepresented “the accuracy and improvements of Maps.”1 As set forth more fully below, her

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“accuracy / improvements” theory is without factual and legal support. The only statement made

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by Apple containing the word “accuracy” is in the Maps License Agreement, and in that

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statement Apple refuses to “guarantee[] the availability, accuracy, completeness, reliability or

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timeliness of [] location data or any other data provided by any Services.” (See Maier Decl., Ex.

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2 at ¶ 5(e) [Dkt. No. 26]; RJN [Dkt. No. 25].) As a matter of law, no reasonable consumer could

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possibly construe this explicit disclaimer as a guarantee of accuracy. Regarding Apple’s

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representation that it is “continuously improving” Maps, Plaintiff fails to cite a single fact

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suggesting that Apple did not make any improvements to Maps between the time of the statement

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and the time that Plaintiff purchased her iPhone 5. Plaintiff’s attempt to substitute speculation

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and conjecture for well-pleaded facts is woefully insufficient under both Rules 8(a) and 9(b).

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Moreover, any aspirational statement by Apple that it was “ improving” Maps is too vague to be

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actionable.

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It is undisputed that Apple provided Maps to Plaintiff “as-is” and without any warranties,

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express or implied. It is also undisputed that, before her purchase, Plaintiff viewed statements by

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Apple apologizing to consumers for the shortcomings of Maps and the frustrations they

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experienced, and suggesting that consumers download other navigation apps while Apple worked

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to improve Maps. Based on these undisputed facts, there is simply no basis for Plaintiff to

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believe that Maps would operate consistently and without fail. The Complaint should be

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dismissed in its entirety without leave to amend.

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See, e.g., Opp. at p. 4 (“Despite the failures of Maps, Apple continued its marketing campaign
which touted the accuracy and improvements of Maps. The truth is that Maps was horribly inaccurate and
not improving.”) (emphasis added); Id. at p. 8 (“Apple made specific representations that Maps would be
accurate and improve over time”) (“Apple knew or should have known that Maps would not perform as
advertised, yet it advertised Maps as an accurate and improving navigational tool to consumers
nationwide.”) (emphasis added).

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II.

ARGUMENT

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Apple’s reply addresses the four arguments made by Plaintiff in opposition to Apple’s

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motion to dismiss. In Part (IV)(A) of her Opposition, Plaintiff asserts that Apple’s purported

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representations regarding Maps could deceive a reasonable consumer. (See Opp. at p. 8-9.) In

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Part (IV)(B), Plaintiff asserts that she stated a claim for “fraudulent” and “unfair” practices under

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the UCL. (See Id. at p. 9-10.) In Part (IV)(3) (sic), Plaintiff asserts that she properly alleged a

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breach of express warranty. (See Id. at p. 11.) Finally, in Part (IV)(B), Plaintiff asserts that she

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satisfied the California Commercial Code’s pre-suit notice requirement for breach of express

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warranty claims. (See Id. at p. 10-11.) As set forth below, none of these arguments spare her

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Complaint from dismissal.

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A.

Plaintiff Fails To Satisfy The “Reasonable Consumer” Standard.

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In support of her Fraud-Based Claims, Plaintiff contends that Apple misled consumers

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into believing that Maps “would be accurate and improve over time.” (Id. at p. 8.) Plaintiff,

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however, fails to cite a single statement attributed to Apple that advertised the performance of

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Maps. The only statement made by Apple containing the word “accuracy” is in the Maps License

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Agreement, whereby Apple expressly refuses to guarantee the “accuracy” of Maps:

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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, time-delayed or incomplete location data
may lead to death, personal injury, property or environmental damage.

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(See Maier Decl., Ex. 2 at ¶ 5(e); RJN.) As a matter of law, no reasonable consumer could

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construe this explicit disclaimer as a guarantee of accuracy.

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Plaintiff suggests to the Court that whether a statement is likely to deceive a reasonable

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consumer is a question of fact that is inappropriate to decide at the pleading stage. The Ninth

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Circuit disagrees:

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Of course, it is possible that some consumers might hazard such an
assumption. But “[a] representation does not become ‘false and deceptive’
merely because it will be unreasonably misunderstood by an insignificant
and unrepresentative segment of the class of persons to whom the
representation is addressed.” We therefore hold that Best Buy's advertising
was not likely to deceive a reasonable consumer; the district court's
dismissal…was proper.

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Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1162 (9th Cir. 2012) (internal citation omitted);

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see also Stuart v. Cadbury Adams USA, LLC, 458 Fed. Appx. 689, 691 (9th Cir. 2011) (“[o]nly an

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unreasonable consumer would be confused or deceived by Cadbury's failure to clarify that

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Trident White gum works only if consumers continue to brush and floss regularly”); Garcia v.

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Sony Computer Entm’t Am., LLC, 859 F. Supp. 2d 1056, 1064 (N.D. Cal. 2012). (“Contrary to

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plaintiff's suggestion, the logos simply do not rise to the level of an express, affirmative

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representation to that effect. Garcia cannot maintain, without more, that reasonable consumers are

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likely to adopt his specific, and fairly extreme, understanding of the logos.”) Contrary to

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Plaintiff’s suggestion, the Court may dismiss a complaint where, as here, it is unlikely that a

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reasonable consumer would have been deceived by the alleged representations.

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In support of her theory that Apple touted the “improvements” of Maps, Plaintiff cites two

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statements made in September 2012 by Apple representatives. On September 20, 2012, Trudy

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Muller, an Apple spokeswoman, stated that “we are continuously improving [Maps]” in response

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to widely-publicized criticism of the navigational software. (Compl. ¶ 4.) That same month,

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Apple’s CEO published an apology letter to its consumers for their frustrations with Maps. The

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September 28, 2012 letter, quoted in full at paragraph 33 of the Complaint, states as follows:

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To our customers,

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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.

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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
(Id. ¶ 33.) Plaintiff asserts that these statements are fraudulent because she believes that Apple
did not make any improvements to Maps after September 2012, but fails to plead any
particularized facts supporting her belief. For example, Plaintiff does not allege that the widelypublicized “screw-ups” and “fails” that preceded these statements were not remedied in
subsequent versions of Maps. Nor does she present any specific facts to suggest that the version
of Maps on her iPhone 5 is exactly the same as the version of Maps that existed in September
2012. Instead of presenting particularized facts, as Rule 9(b) requires, Plaintiff offers rank
speculation and conjecture, which does not even satisfy the more liberal pleading standards of
Rule 8(a). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (factual allegations
“must be enough to raise a right to relief above the speculative level” such that the claim “is
plausible on its face”). Plaintiff has failed to present any facts to plausibly suggest that Apple did
not make any improvements to Maps.
Moreover, the aspirational statements made by Apple’s representatives regarding efforts
to “improve” Maps are simply too vague to be actionable. In re American Apparel, Inc.
Shareholder Litigation, 855 F. Supp. 2d 1043, 1072-1073 (C.D. Cal. 2012) (defendants' repeated
assertions that they were making efforts to improve financial systems and internal controls were
“couched in aspirational terms,” and ‘were simply too vague to be actionable”); In re West Seal,
Inc., Sec. Litig., 518 F. Supp. 2d 1148, 1168 (C.D. Cal. 2007) (citing “continuing improvements”

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as an example of non-actionable “run-of-the-mill corporate optimism”); In re Cornerstone

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Propane Partners, L.P., 355 F. Supp.2d 1069, 1087 (N.D. Cal. 2005) (holding that the term

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“continuing improvements” was non-actionable because it constituted “vague, unspecific

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assertions of corporate optimism”); see also In re iPhone 4S Consumer Litig., No. C 12-1127-

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CW, 2014 WL 589388 (N.D. Cal. Feb. 14, 2014) (rejecting several statements by Apple as non-

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actionable puffery). Thus, the Court should deem any statements by Apple that it was working to

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“improve” Maps as run-of-the-mill statements of corporate optimism that are non-actionable as a

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matter of law.

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Finally, Plaintiff’s criticisms of the “accuracy and improvements of Maps” are too

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ambiguous for Apple to defend. She alleges that “Maps was unable to consistently perform as

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shown and represented,” without specifying a level of “consistency” or level of “accuracy” and

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“improvements” that she expected. (See Opp. at pp. 9-10.) Chief Judge Wilken of this Court

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recently dismissed without leave to amend a similar claim against Apple regarding the Siri

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function on the iPhone 4S. In In re iPhone 4S, the plaintiffs alleged that Apple misrepresented

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that Siri would perform “on a consistent basis” in understanding user questions. In re iPhone 4S,

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2014 WL 589388 at *6. The Court recognized that the alleged representation was “unacceptably

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ambiguous” and too vague to be actionable: “Plaintiffs do not elaborate on the meaning of the

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term ‘on a consistent basis’ anywhere in their complaint or their argument. Apple and the Court

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are left to guess whether Plaintiffs expected Siri to operate without fail, or more often than not, or

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at any other level below perfection.” Id.

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The same rationale applies here. Plaintiff does not elaborate on the level of accuracy or

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improvements that she expected from Maps. Plaintiff, like the plaintiffs in In re iPhone 4, simply

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alleges that “Maps was unable to consistently perform as shown and represented,” without

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specifying a level of “consistency,” leaving Apple and the Court to guess whether Plaintiff

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expected Maps to operate without fail, or more often than not, or at any other level below

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perfection. (See Opp. at pp. 9-10.) Thus, as Judge Wilken recognized:

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The Court cannot determine whether Plaintiff[] [has] properly plead that a
misrepresentation occurred, including the questions of whether Plaintiff[]
[was] justified in inferring such a standard from the advertisements,
whether a reasonable consumer would perceive the same standard, and
whether [Maps] failed to meet such a standard, and how Apple would be
shown to have known [Maps] did not meet the expected standard.
Including this information is necessary to give Apple notice of what level
of performance it must defend, framing the dispute for summary judgment
and trial.

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In re iPhone 4S, 2014 WL 589388 at *6. Absent such well-pleaded allegations, Plaintiff fails to
state a claim, and her Complaint must be dismissed without leave to amend.
B.

The Complaint Fails To Plead A UCL Violation.

In Part (IV)(B) of her Opposition, Plaintiff contends that her Complaint establishes
fraudulent and unfair practices under the UCL. She first contends that the Complaint states a
fraudulent practice under the UCL by alleging “the specific content of Apple’s advertisements
and promotional demonstrations regarding Maps functionality and capabilities.” (Opp. at p. 9
(emphasis added).) According to Plaintiff, the Complaint further alleges “that Maps was unable
to consistently perform as shown and represented in these advertisements and promotions.” (Id.
at p. 9-10 (emphasis added).) Nowhere in the Complaint, however, does Plaintiff cite a single
“advertisement” or “promotional demonstration” regarding Maps.2 Plaintiff should not be
allowed to defend the veracity of her UCL fraud claim by resorting to vague and generalized
references to phantom advertisements and promotions that are not specifically referenced or
quoted anywhere in her pleading. See In re iPhone 4S, 2014 WL 589388 at * 5 (“Apple would be
hard-pressed to defend against an allegation that the overall impact of these commercials and
advertisements misled Plaintiffs. That does not meet the level of specificity required by Rule

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Plaintiff also contends in her Opposition that “[t]through numerous press releases, press
conferences, website representations and direct email solicitations, Apple solicited consumers to purchase
its devices by representing that the Maps feature was an innovative, accurate and versatile navigational
tool.” (Opp. at p. 4.) The Complaint, however, fails to quote a single press release, press conference,
website representation or direct email solicitation, let alone one that describes Maps as “innovative,”
“accurate,” or “versatile.” Without specifics, including who made the statement, what the statement said,
and where and when the statement was made, it is impossible for Apple to properly defend such
allegations.

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9(b).”). Indeed, the term “promotional demonstration” is not even used in her Complaint. Apple

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should not be forced to defend a moving target.

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Regarding the UCL’s unfairness prong, Plaintiff recites the standards for an unfair policy

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under California law, but fails to explain to the Court why her pleading satisfies these standards.

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Nor can she provide a sufficient explanation. It is undisputed that Plaintiff accepted the terms of

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the Maps License Agreement, which disclaimed any and all representations and warranties

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regarding the functionality of Maps and provided the software “as-is.” There is nothing “unfair”

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about these terms, and the Plaintiff cannot ask the Court to invoke the UCL to rewrite them. See,

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e.g., Walker v. Countrywide Home Loans, Inc., 98 Cal. App. 4th 1158, 1176-1177 (2002) (“The

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‘unfairness’ element of the unfair competition law does not give the courts a general license to

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review the fairness of contracts.”) (internal citations and quotations omitted). Her UCL claims

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fail as a matter of law.

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C.

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As set forth above, Plaintiff concedes that she has no claim for breach of express or

Apple’s Statements Do Not Create An Express Warranty.

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implied warranty under both the Hardware Warranty and Software License Agreement, and it is

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undisputed that the terms are valid and enforceable. Attempting to create a separate express

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warranty where none exists, Plaintiff asserts that she saw and relied on purported “advertisements

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and promotions” that warranted the accuracy and improvements of Maps. Plaintiff’s breach of

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express warranty claim in Count I, however, does not allege that Plaintiff saw any

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“advertisements or promotions” regarding Maps. Instead, Count I alleges that she saw two

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statements by Apple representatives. The first statement was made by Scott Forstall at the World

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Wide Developers Conference in June of 2012 “touting the new iOS 6 as a ‘major initiative,’” and

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the second statement was made by Apple’s CEO in a September 28, 2012 letter to its customers

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“providing ‘persistent encouragement’ by Apple to stick with its products because ‘the more our

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customers use our Maps the better it will get.’” (Compl., Count I (Breach of Express Warranty) at

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¶ 61; see also Compl. at ¶¶ 16, 33.) These two statements, which are neither advertisements or

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promotions, are non-actionable in warranty for two independent reasons.

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First, the Hardware Warranty clearly and conspicuously states that it is the exclusive

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express warranty, and disclaims all other express warranties. (See Maier Decl., Ex. 1 (a-b); RJN

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(“…THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN

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LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL,

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WRITTEN, STATUTORY, EXPRESS OR IMPLIED.”).) In addition, the Maps License

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Agreement clearly and conspicuously states that Maps is provided “as is,” “as available,” and

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“without warranty of any kind.” (Id., Ex. 2 at ¶ 7.3.) (“TO THE MAXIMUM EXTENT

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PERMITTED BY APPLICABLE LAW, THE iOS SOFTWARE AND SERVICES ARE

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PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT

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WARRANTY OF ANY KIND, AND APPLE … HEREBY DISCLAIM[S] ALL WARRANTIES

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AND CONDITIONS WITH RESPECT TO THE iOS SOFTWARE AND SERVICES, EITHER

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EXPRESS, IMPLIED OR STATUTORY …” .) By agreeing to its terms, Plaintiff further

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acknowledged that “NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY

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APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE SHALL CREATE A

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WARRANTY. “ (Id. at ¶ 7.6.) Thus, the Hardware Warranty and Software License Agreements

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govern Plaintiff’s claim and warrant the dismissal of Count I.

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Second, neither of these statements satisfies the common law elements of an express

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warranty. Under California law a breach of express warranty claim requires that the plaintiff

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

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“explicit guarantee[].” Maneely v. Gen. Motors Corp., 108 F.3d 1176, 1181 (9th Cir. 1997).

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Neither statement constitutes an “explicit guarantee” regarding Maps. The first statement merely

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describes iOS 6 – not Maps – as a “major initiative,” and the second statement, using Plaintiff’s

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own words, was “encouragement” to purchase Apple products. Simply put, these statements do

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not “guarantee” anything. For any and all of these reasons, Plaintiff’s express warranty claims

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fail as a matter of law.

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D.

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Under § 2607 of the California Commercial Code a “buyer must, within a reasonable time

Plaintiff Fails To Establish Pre-Suit Notice.

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

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from any remedy.” Cal. Com. Code § 2607. As demonstrated in Apple’s Motion to Dismiss,

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Plaintiff fails to allege anywhere in the Complaint that she provided pre-suit notice to Apple

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regarding an alleged breach of an express warranty within a reasonable time after she discovered

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the breach. Plaintiff dedicates one sentence to this argument in her Opposition, asserting that

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“Plaintiff’s counsel sent Apple a letter as set forth in the [Complaint].” (Opp. at p. 10.) Plaintiff

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is presumably referring to paragraph 88 of the Complaint, where she alleges that her counsel sent

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to Apple “notice in writing by certified mail of the particular violations of §1770 of the CLRA.”

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(Compl. at ¶ 88.) The Complaint does not allege, however, that the purported notice of CLRA

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violations alleged in paragraph 88 also notified Apple of an alleged breach of warranty. The

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Complaint’s alleged notice of CLRA violations, standing alone, does not satisfy pre-suit notice

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under the express requirements of the California Commercial Code.
Plaintiff also contends that the pre-suit notice requirement “does not apply” to her express

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warranty claims because “[t]he pre-suit notice requirement only applies when products are

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purchased directly from a manufacturer.” (Opp. at p. 10.) Putting aside Plaintiff’s insistence that

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she in fact provided pre-suit notice to Apple, her Complaint alleges that she had “direct dealings”

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with Apple and that “Plaintiff and the Class purchased Apple Devices from Apple and/or Apple-

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authorized retailers.” (Compl. at ¶ 67.) Thus, Plaintiff’s contention is a red herring and the Court

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should ignore it.

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III.

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

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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)

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

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

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Respectfully submitted,
Dated: April 30, 2014

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DLA PIPER LLP (US)
By:

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

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