Moore v. Apple Inc.

Filing 24

REPLY (re 18 MOTION to Dismiss ) filed byApple Inc.. (Walsh, David) (Filed on 9/18/2014)

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DAVID M. WALSH (CA SBN 120761)
[e-mail]
KAI S. BARTOLOMEO (CA SBN 264033)
[e-mail]
MORRISON & FOERSTER LLP
707 Wilshire Boulevard
Los Angeles, California 90017-3543
Telephone: [phone]
Facsimile: 213.892.5454
TIFFANY CHEUNG (CA SBN 211497)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
Attorneys for Defendant
APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ADRIENNE MOORE, on behalf of herself and all
others similarly situated,

Case No.

5:14-cv-02269 LHK

CLASS ACTION

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Plaintiffs,

DEFENDANT APPLE INC.’S REPLY
IN SUPPORT OF MOTION TO
DISMISS

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v.
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APPLE INC.,
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Defendant.
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Date:
Time:
Place:
Judge:

November 13, 2014
1:30 p.m.
Courtroom 8
Hon. Lucy H. Koh

Complaint Filed: May 15, 2014
Trial Date: None Set

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APPLE’S REPLY ISO MOTION TO DISMISS
CASE NO. 5:14-CV-02285 LHK
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TABLE OF CONTENTS
Page

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I.

INTRODUCTION .............................................................................................................. 1 

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II.

ARGUMENT ...................................................................................................................... 2 

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A.

Plaintiff Lacks Standing to Bring Her Claims ........................................................ 2 

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B.

Plaintiff Does Not State a Claim for Tortious Interference with Contract ............. 3 

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1.

Plaintiff Does Not Allege A Specific Contractual Provision ...................... 3 

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2.

Plaintiff Must Show That Apple Knew About Those Contractual
Obligations .................................................................................................. 4 

3.

Plaintiff Cannot Allege Any Breach of Any Contractual Obligations........ 6 

4.

Plaintiff Cannot Allege Any Intentional Actions by Apple to Induce
a Breach....................................................................................................... 7 

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C.

Plaintiff Cannot Assert Claims Under the UCL and CLRA ................................... 7 

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1.

Plaintiff’s Consumer Protection Claims Do Not Satisfy Rule 9(b) ............ 7 

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2.

Plaintiff Does Not Otherwise State a Claim Under the CLRA ................. 11 

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3.

Plaintiff Does Not Otherwise State a Claim Under the UCL.................... 13 

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III.

CONCLUSION ................................................................................................................. 13 

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TABLE OF CONTENTS TO APPLE’S REPLY ISO MOTION TO DISMISS
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TABLE OF AUTHORITIES
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Page(s)

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CASES

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AGA Shareholders, LLC v. CSK Auto, Inc.,
No. CV-07-0062-PHX-DGC, 2007 WL 2320532 (D. Ariz. Aug. 10, 2007) ............................ 4

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5

Baba v. Hewlett-Packard Co.,
No. C 09-05946 RS, 2010 WL 2486353 (N.D. Cal. June 16, 2010) ...................................... 10

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Baltazar v. Apple, Inc.,
No. CV-10-3231-JF, 2011 WL 588209 (N.D. Cal. Feb. 10, 2011) .......................................... 8
Benson v. JP Morgan Chase Bank, N.A.,
Nos. C–09–5272 EMC, C–09–5560 EMC, 2010 WL 1526394 (N.D. Cal. Apr. 15,
2010) ......................................................................................................................................... 5
Catch Curve v. Venali, Inc.,
519 F. Supp. 2d 1028 (C.D. Cal. 2007) .................................................................................... 4
Daugherty v. Am. Honda Motor Co. Inc.,
144 Cal. App. 4th 824 (2006) ............................................................................................. 8, 13
Davis v. Nadrich,
174 Cal. App. 4th 1 (2009) ................................................................................................... 5, 7
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) .................................................................................................................. 2
Gonzalez v. Drew Indus., Inc.,
No. CV 06-08233 DDP, 2010 WL 3894791 (C.D. Cal. Sept. 30, 2010), aff’d, 750 F.
App’x 768 (9th Cir. 2012)......................................................................................................... 3
Hartford Life Ins. Co. v. Banks,
No. 08cv1279 WQH (LSP), 2009 WL 863267 (S.D. Cal. Mar. 25, 2009) ............................... 3
Hensley-Maclean v. Safeway, Inc.,
No. CV 11-01230 RS, 2014 WL 1364906 (N.D. Cal. Apr. 7, 2014)...................................... 10

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Image Online Design, Inc. v. Internet Corp. for Assigned Names &
Numbers, No. CV 12-08968 DDP, 2013 WL 489899 (C.D. Cal. Feb. 17, 2013) .................... 4
In re Apple & AT&T iPad Unlimited Data Plan Litigation,
802 F. Supp. 2d 1070 (N.D. Cal. 2011) .................................................................................. 12
In re Apple In-App Purchase Litigation,
855 F. Supp. 2d 1030 (N.D. Cal. 2012) .................................................................................. 12

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In re Facebook PPC Adver. Litig.,
No. 5:09-3043-JF, 2010 WL 3341062 (N.D. Cal. Aug. 25, 2010) ........................................... 9
TABLE OF AUTHORITIES TO APPLE’S REPLY ISO MOTION TO DISMISS
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TABLE OF AUTHORITIES (continued)
Page
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In re Sony Gaming Networks & Customer Data Sec. Breach Litig.,
903 F. Supp. 2d 942 (S.D. Cal. 2012) ....................................................................................... 2
In re Sony PS3 Other OS Litigation,
551 Fed. App’x 916 (9th Cir. Jan. 6, 2014) ............................................................................ 11
Jewelry 47, Inc. v. Biegler,
No. 2:08-CV-00174-MCE-KJM, 2008 WL 4642903 (E.D. Cal. Oct. 16, 2008)...................... 5
Kearns v. Ford Motor Co.,
567 F.3d 1120 (9th Cir. 2009)................................................................................................... 8
Khoday v. Symantec Corp.,
858 F. Supp. 2d 1004 (D. Minn. 2012) ................................................................................... 12
name.space, Inc. v. Internet Corp. for Assigned Names &
Numbers, No. CV 12-8676 PA, 2013 WL 2151478 (C.D. Cal. Mar. 4, 2013) ......................... 7
Orea Energy Grp., LLC v. E. Tenn. Consultants, Inc.,
No. 3:09-CV-041, 2009 WL 3246853 (E.D. Tenn. Oct. 6, 2009) ............................................ 8

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Perrine v. Sega of America, Inc.,
No. C 13–01962 JSW, 2013 WL 6328489 (N.D. Cal. Oct. 3, 2013)...................................... 12
Provencio v. Vazquez,
258 F.R.D. 626 (E.D. Cal. 2009) .............................................................................................. 8
Rubio v. Capital One Bank,
613 F.3d 1195 (9th Cir. 2010)................................................................................................... 2

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Schauer v. Mandarin Gems of Cal., Inc.,
125 Cal. App. 4th 949 (2005) ................................................................................................. 11
Trindade v. Reach Media Grp., LLC,
No. 12-CV-4759-PSG, 2013 WL 3977034 (N.D. Cal. July 31, 2013) ..................................... 5
Wilson v. Hewlett-Packard Co.,
668 F.3d 1136 (9th Cir. 2012)............................................................................................... 8, 9

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Wofford v. Apple Inc.,
No. 11-cv-0034 AJB NLS, 2011 WL 5445054 (S.D. Cal. Nov. 9, 2011) ....................... passim
Yanik v. Countrywide Home Loans, Inc.,
No. CV 10-6268 CAS, 2010 WL 4256312 (C.D. Cal. Oct. 18, 2010) ..................................... 4

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OTHER AUTHORITIES

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Rule 8 .......................................................................................................................................... 3, 4

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Rule 9 ...................................................................................................................................... 3, 7, 8
TABLE OF AUTHORITIES TO APPLE’S REPLY ISO MOTION TO DISMISS
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I.

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Plaintiff’s Opposition makes clear that she has no claim against Apple relating to its free

INTRODUCTION

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iMessage service. Plaintiff does not respond at all to her failure to meet the threshold

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requirements of standing under Article III, the UCL, and the CLRA. Her general allegations that

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she failed to receive unspecified text messages are insufficient to demonstrate any actual injury,

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much less the economic harm required to establish standing under the UCL. Plaintiff’s arguments

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regarding the failure to realize the “full benefit” of her contract with her wireless carrier, Verizon,

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fare no better. At most, she alleges that Verizon promised to provide her with “wireless

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services,” and that is exactly what she received. Plaintiff cannot allege that Verizon was

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obligated to deliver iMessages that bypassed Verizon’s network entirely and were sent over

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Apple’s proprietary systems.

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Moreover, each of Plaintiff’s causes of action fails because Plaintiff cannot allege the

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required elements of her claims. Plaintiff cannot plead the basic elements of her tortious

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interference with contract claim because there was no breach or disruption of any provision of her

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contract with Verizon, and Plaintiff fails yet again to identify any provision of such contract.

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Even if there was such a breach, Plaintiff cannot allege facts showing that Apple knew about the

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relevant provisions of her contract with Verizon and that Apple intended to induce a breach of

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those provisions.

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Plaintiff’s consumer protection claims under the UCL and CLRA are based upon a factual

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theory that is impossible. In her Opposition, she asserts a new theory that does not appear

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anywhere in her Complaint, but even this new theory is based on alleged omissions that occurred

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after Plaintiff purchased her iPhone 4. Plaintiff’s creative argument that her purchase transaction

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has not consummated and continues in perpetuity should be rejected. By definition, Plaintiff

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could not have relied on any alleged omissions in connection with her purchase when those

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omissions did not occur until well after her purchase and when iMessage did not exist in the

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marketplace at the time of her purchase.

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Plaintiff’s CLRA claim also fails because Plaintiff cannot allege any predicate “sale or
lease” as Plaintiff concedes that she downloaded the iOS 5 software, which included iMessage,
APPLE’S REPLY ISO MOTION TO DISMISS
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for free. Plaintiff further admits that iMessage is part of a software system. As courts have

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routinely held, software is neither a good nor service and cannot serve as the basis for a CLRA

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claim.

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Plaintiff’s Complaint should be dismissed.

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II.

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ARGUMENT
A.

Plaintiff Lacks Standing to Bring Her Claims

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Plaintiff does not meet the Article III standing or UCL/CLRA standing requirements

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because she does not allege a cognizable injury. (See Mot. at 6:17-9:2.) Plaintiff effectively

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concedes that she cannot allege an injury-in-fact (Article III), lost money or property as a result of

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unfair competition (UCL), or a tangible increased cost or burden (CLRA) based on any purported

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misrepresentations or omissions by Apple. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

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(TOC), Inc., 528 U.S. 167, 180-81 (2000) (Article III Standing); Rubio v. Capital One Bank, 613

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F.3d 1195, 1203 (9th Cir. 2010) (UCL standing); In re Sony Gaming Networks & Customer Data

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Sec. Breach Litig., 903 F. Supp. 2d 942, 965 (S.D. Cal. 2012) (CLRA standing).

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Plaintiff seemingly tries to assert two possible theories of injury to support her assertion of

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standing: (1) she claims she did not realize the full benefit of her “contractual bargain” with her

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wireless carrier because Apple allegedly interfered with that contract (Opp. at 11:12-24); and

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(2) she claims she did not receive certain, unspecified text messages from current Apple device

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users (id. at 18:16-21). Neither purported injury confers standing.

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Wireless Contract: Plaintiff generally alleges that she contracted with Verizon to

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“receive cellular service,” including the “ability” to send and receive text messages. (Compl.

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¶¶ 1, 36-37.) Plaintiff does not allege that Verizon guaranteed that she would receive every text

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message sent to her. Nor does she allege that Verizon failed to supply any services because of

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Apple’s alleged conduct. Essentially, she received what she contracted for. Although Plaintiff

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claims that she did not receive unspecified iMessages that she expected to receive from current

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Apple users, she does not allege that Verizon agreed to deliver text messages that bypassed

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Verizon’s network.

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Missed Messages and Injury-in-Fact: Plaintiff’s allegations that she did not receive

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certain text messages are not enough for standing, either. First, Plaintiff does not identify a single

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text message that was sent to her that she did not receive. She does not explain the number,

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content, or significance of the text messages she allegedly did not receive. She does not explain

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how she suffered harm because she did not receive these unidentified text messages. Her

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conclusory allegations of harm cannot confer standing. See Gonzalez v. Drew Indus., Inc., No.

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CV 06-08233 DDP (JWJx), 2010 WL 3894791, at *3 (C.D. Cal. Sept. 30, 2010), aff’d, 750 F.

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App’x 768 (9th Cir. 2012).

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B.

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Plaintiff Does Not State a Claim for Tortious Interference with
Contract

Plaintiff now says that her “principal” claim is that Apple interfered with her contract with
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her wireless carrier — a third party. In fact, Apple has absolutely no interest in inducing a breach
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of Plaintiff’s (or any customer’s) contractual relationship with a wireless carrier. Apple’s devices
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are wholly reliant on wireless services provided by third-party carriers. Apple has nothing to gain
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by causing a breach.
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1.

Plaintiff Does Not Allege A Specific Contractual Provision

Plaintiff makes the conclusory allegation that Apple interfered with her Verizon contract.
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Conclusory allegations are not enough. Under either the notice pleading requirements of Rule 8
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(which Plaintiff argues apply) or the more stringent pleading requirements of Rule 9(b), Plaintiff
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is required to identify the specific contractual obligations she alleges are at issue. She has not
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done so. See Wofford v. Apple Inc., No. 11-cv-0034 AJB NLS, 2011 WL 5445054, at *3 (S.D.
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Cal. Nov. 9, 2011) (“The Plaintiffs make only conclusory allegations that Apple’s purported
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actions interfered with ATTM’s ability to fulfill its obligations under ATTM and plaintiffs’
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wireless contracts (FAC¶ 69), but they do not identify the specific obligations that were breached,
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as required by Twombly, Iqbal, and Rule 9(b).”); Hartford Life Ins. Co. v. Banks, No. 08cv1279
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WQH (LSP), 2009 WL 863267, at *6 (S.D. Cal. Mar. 25, 2009) (dismissing interference with
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contract claim because plaintiff failed to allege facts describing the contractual relationship);
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Yanik v. Countrywide Home Loans, Inc., No. CV 10-6268 CAS (RZx), 2010 WL 4256312, at *5-

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6 (C.D. Cal. Oct. 18, 2010) (same).1

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Plaintiff makes general allegations that her wireless service contract entitled her to receive

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wireless service, including, “inter alia,” text messages. (See Compl. ¶ 36; Opp. at 4:26-5:11.)

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Courts have found similar allegations to be too conclusory to satisfy even the Rule 8 notice

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pleading standard. See Image Online Design, Inc. v. Internet Corp. for Assigned Names &

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Numbers, No. CV 12-08968 DDP (JCx), 2013 WL 489899, at *9 (C.D. Cal. Feb. 17, 2013)

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(finding “conclusory” plaintiff’s allegations of tortious interference, including allegation that the

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defendant had contractual relationships with its customers for web services, including the

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“ability” to register domain names). Plaintiff is a party to her own wireless service contract. She

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has full access to her contract. She must identify the specific contractual provision(s) with which

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Apple supposedly interfered.

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2.

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Plaintiff Must Show That Apple Knew About Those
Contractual Obligations

Plaintiff cannot allege that Apple was aware of her third-party wireless carrier’s
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contractual obligations to her or that it intended to interfere with those obligations. See Wofford,
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2011 WL 5445054, at *3 (“Moreover, because plaintiffs have failed to identify any specific
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obligations, they have not provided any facts demonstrating that Apple was aware of the
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Plaintiff relies on Catch Curve v. Venali, Inc., 519 F. Supp. 2d 1028, 1039 (C.D. Cal.
2007), and AGA Shareholders, LLC v. CSK Auto, Inc., No. CV-07-0062-PHX-DGC, 2007 WL
2320532, at *4 (D. Ariz. Aug. 10, 2007), to argue that generalized allegations regarding the
existence of a contract suffice at the pleading stage. (Opp. at 5:16-6:1.) Neither case supports
that proposition. In Catch Curve, the defendant/counterclaimant, Venali, asserted unfair
competition counterclaims premised on, among other things, “tortious interference with Venali’s
business relations based on a campaign of threats of patent infringement lawsuits targeting
Venali's customers.” 519 F. Supp. 2d at *1 (emphasis added). In other words, Venali’s
interference claim was focused on disruption of its business relationships generally. Here, by
contrast, Plaintiff asserts that Apple interfered with a specific, discrete contractual entitlement or
obligation that she is unable to identify. Further, before the hearing on the motion to dismiss,
Venali identified each contract that fell within the scope of its claim, tacitly conceding that the
specific identification of the contractual provisions of issue is required at the pleading stage. Id.
at 1039. Moreover, Plaintiff’s tortious interference allegations bear no resemblance to the
allegations in AGA Shareholders. There, the plaintiff alleged the precise language of the relevant
agreement and attached a copy of the agreement to the Complaint. [See AGA Shareholders, LLC
v. CSK Auto, Inc., No. CV-07-0062-PHX-DGC, Dkt. No. 38-3, at ¶¶ 15-16, Ex. A.] Here, of
course, Plaintiff has done neither.
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obligations in question or that it intended to prevent those obligations from being fulfilled.”);

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Davis v. Nadrich, 174 Cal. App. 4th 1, 10-11 (2009) (interference claim failed because plaintiff

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did not provide any facts demonstrating that defendant was sufficiently aware of the terms of the

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contract to form a specific intent to harm it).

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Plaintiff claims that she has adequately pled that Apple knew about the relevant provisions

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of her wireless contract because: (1) she alleges that class members’ wireless carriers “updated”

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wireless service accounts to reflect that class members were no longer receiving wireless service

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on their Apple devices (Compl. ¶ 38); (2) the declaration submitted in support of Apple’s Motion

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“admit[s]” that Apple maintains certain records regarding iPhone purchases; and (3) Plaintiff

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alleges that she contacted Apple for technical assistance (id. ¶¶ 20-21). (Opp. at 6:4-7:23.) None

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of these is sufficient to impute knowledge to Apple. See Trindade v. Reach Media Grp., LLC,

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No. 12-CV-4759-PSG, 2013 WL 3977034, at *15-16 (N.D. Cal. July 31, 2013); Jewelry 47, Inc.

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v. Biegler, No. 2:08-CV-00174-MCE-KJM, 2008 WL 4642903, at *3-4 (E.D. Cal. Oct. 16,

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2008).2

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First, nothing in the Complaint suggests that Apple had knowledge of the information in

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accounts managed and “updated” by third-party wireless service providers. The knowledge of a

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separate party cannot be imputed to Apple.

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Second, nothing in Mr. Kohlman’s declaration suggests that Apple’s records include the

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terms and conditions of Plaintiff’s wireless service agreement. Mr. Kohlman states that Apple’s

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Plaintiff cites Benson v. JP Morgan Chase Bank, N.A., Nos. C–09–5272 EMC, C–09–
5560 EMC, 2010 WL 1526394 (N.D. Cal. Apr. 15, 2010), in support of her assertion that Apple’s
“dealings” with Verizon and other wireless carriers are sufficient to impute knowledge to Apple
regarding the terms and conditions of Plaintiff’s wireless contract. In addition to the great logical
leap required to make this assertion, the Benson case does not support it and has no place here.
Benson involved a cause of action for aiding and abetting fraud in the context of a Ponzi scheme.
Id. at *1-2. To establish their claim, the plaintiffs were required to allege that the defendants —
banks at which the alleged schemers held accounts — “had actual knowledge of the specific
primary wrong.” Id. at *2. The court found the plaintiffs’ allegations of knowledge to be
sufficient, but it highlighted the plaintiffs’ “detailed factual allegations” in reaching that
conclusion. Id. at *3. For example, the Benson plaintiffs alleged that the defendant banks knew
specific details about the scheme because they audited the accounts used in the scheme and were
aware of numerous other red flags. Id. at *3-4. Here, by contrast, Plaintiff has not and cannot
allege facts showing or suggesting that Apple knew the terms and conditions of her wireless
contract.
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records include information about when Plaintiff purchased her iPhone. Mr. Kohlman’s

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declaration does not suggest that Apple was aware of the terms and conditions of a customer’s

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contractual relationship with her carrier.

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Finally, the fact that Plaintiff requested technical assistance from Apple does not lead to

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the conclusion that Apple was aware of the terms and conditions of Plaintiff’s wireless service

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contract. Plaintiff’s alleged conversation with “Apple personnel” does not impute awareness to

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Apple of Verizon’s contractual obligations under any contract with Plaintiff. Indeed, as this

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conversation allegedly occurred after Plaintiff stopped receiving text messages from Apple users,

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Apple could not have intended to disrupt a contractual obligation it did not know about at the time

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the alleged breach occurred.

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3.

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Plaintiff Cannot Allege Any Breach of Any Contractual
Obligations

Plaintiff contracted with Verizon to “receive cellular service.” (Compl. ¶¶ 36-37.) That
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service includes the “ability” to send and receive text messages. (See id. ¶¶ 1, 36-37.) It does not
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include a guarantee that Plaintiff will receive each and every text message sent to her.3 Plaintiff

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does not claim that Verizon did not provide wireless service. Rather, the core of her claim is that
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she could not receive certain text messages on her non-Apple device because those messages
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were “routed” through Apple’s proprietary iMessage service and Messages application, instead of
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her wireless carrier’s SMS/MMS system. (Id. ¶ 5.) iMessages are sent through Apple’s
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proprietary systems; they never touched, let alone disrupted, the wireless service provided to
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Plaintiff by Verizon. Without a breach, Plaintiff cannot claim interference with her Verizon
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contract. See Wofford, 2011 WL 5445054, at *4 (finding that plaintiffs failed to allege breach of
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wireless services agreement because they “cannot allege that [the wireless service provider]
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Plaintiff’s reliance on case law concerning interference with at-will employment and
client agreements is misplaced. (See Opp. at 10:20-11:4 (citing Reeves v. Hanlon, 33 Cal. 4th
1140, 1148 (2004), and Chaganti v. i2Phone Int’l, Inc., 635 F. Supp. 2d 1065 (N.D. Cal. 2007)).)
Plaintiff relies on these cases to argue that, even when a contracting party has the right to refrain
from performing, interference with the contract can still give rise to liability. (See id.) Plaintiff
misses the point. At most, Plaintiff’s allegations suggest that her Verizon contract entitled her to
wireless service, including certain capabilities that enabled her to receive text messages. Plaintiff
did not have a contractual right to each and every text message sent to her. Neither Verizon nor
any other wireless carrier could agree to that.
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guaranteed the operability of phones used on its network”); Davis, 174 Cal. App. 4th at 10

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(dismissing interference with contract claim where plaintiff failed to demonstrate that the actions

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allegedly induced by defendants breached plaintiff’s contract).

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4.

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Plaintiff Cannot Allege Any Intentional Actions by Apple to
Induce a Breach

Plaintiff cannot allege that Apple intentionally induced Verizon to breach the wireless
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services contract because she cannot identify a specific contractual provision, Apple’s knowledge
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of that provision, or a breach of that provision. Wofford, 2011 WL 505054, at *3 (concluding that
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“because plaintiffs have failed to identify any specific obligations, they have not provided any
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facts demonstrating that Apple was aware of the obligations in question or that it intended to
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prevent those obligations from being fulfilled”); name.space, Inc. v. Internet Corp. for Assigned
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Names & Numbers, No. CV 12-8676 PA (PLAx), 2013 WL 2151478, at *8 (C.D. Cal. Mar. 4,
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2013) (finding that plaintiff failed to allege intentional actions designed to induce a breach or
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disruption). Plaintiff tries to rely on an alleged statement by an unidentified “Apple customer
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support employee” cited in an online article by a third party. (Opp. at 9:26-10:5.) This employee
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allegedly stated that “[i]f you switch from an iPhone to an Android, iMessage won’t deliver texts
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from iPhone users to your new Android phone.” (Id. at 10:2-5.) Even if true, this statement does
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not show: (1) that Apple believed the wireless carriers were contractually obligated to deliver
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iMessages sent over Apple’s systems; or (2) that Apple intended to disrupt that obligation. For
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the same reasons, Plaintiff cannot allege that she was harmed by any purported interference by
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Apple because she received the “full benefit” of her contractual bargain with Verizon.
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C.

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1.

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Plaintiff Cannot Assert Claims Under the UCL and CLRA
Plaintiff’s Consumer Protection Claims Do Not Satisfy Rule
9(b)

Plaintiff does not dispute that her UCL and CLRA claims sound in fraud and must satisfy

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Rule 9(b)’s particularity requirement. (See Mot. at 9:8-25.) In fact, Plaintiff effectively admits

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that her UCL and CLRA claims must be pled with specificity. (See Opp. at 24:2-8.) Yet, she has

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not done so.

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a.

No Misrepresentation or Omission

Plaintiff does not allege a single actionable misrepresentation regarding iOS 5, iMessage,

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or the Messages software. (Mot. at 10:6-24.) Plaintiff does not dispute that the Complaint does

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not identify a single actionable misrepresentation or omission.4 (See id. at 10:25-11:25.) Instead,

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Plaintiff disregards her own Complaint and shifts to an entirely new theory of liability: an

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“omission” claim that she premises on Apple’s iOS software license agreement.

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Plaintiff’s newly minted theory of liability is found nowhere in the Complaint. Indeed,

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Plaintiff does not mention the software license agreement in her Complaint, let alone make

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allegations that she was somehow misled by language in agreements that she does not claim she

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read. The Court should reject Plaintiff’s attempt to re-plead her case in an opposition brief. See

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Provencio v. Vazquez, 258 F.R.D. 626, 638-39 (E.D. Cal. 2009) (“Raising a completely new

12

theory of liability, with only attenuated connection to the complaint, in a brief in opposition to a

13

motion to dismiss does not grant Defendant fair notice of Plaintiffs’ claim or the grounds upon

14

which it rests.”); Orea Energy Grp., LLC v. E. Tenn. Consultants, Inc., No. 3:09-CV-041, 2009

15

WL 3246853, at *3 (E.D. Tenn. Oct. 6, 2009) (“[T]hese allegations are nowhere to be found in

16

the complaint. They are present only in plaintiff’s briefing, and it is a basic principle that the

17

complaint may not be amended by the briefs in opposition to a motion to dismiss.” (internal

18

quotation marks and citations omitted)).

19

In any case, Plaintiff’s new theory does not support a claim for actionable omission. To

20

be actionable, an omission must be “contrary to a representation actually made by the defendant,

21

or an omission of a fact the defendant was obliged to disclose.” Baltazar v. Apple, Inc., No. CV-

22

10-3231-JF, 2011 WL 588209, at *4 (N.D. Cal. Feb. 10, 2011) (internal quotation marks omitted)

23

(quoting Daugherty v. Am. Honda Motor Co. Inc., 144 Cal. App. 4th 824, 835 (2006)); Wilson v.

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Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th Cir. 2012) (“California courts have generally

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4

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Plaintiff asks the Court to relax her pleading burden because she argues that her claims
are based on an omission theory. (See Opp. at 24:13-20 (citing MacDonald v. Ford Motor Co.,
Case No. 3:13–CV–02988–JST, 2014 WL 1340339 (N.D. Cal. Mar. 31, 2014).) Plaintiff’s
request is contrary to the law of this Circuit. As the Ninth Circuit held in Kearns v. Ford Motor
Co., 567 F.3d 1120, 1126 (9th Cir. 2009), alleged omissions are species of misrepresentations and
are, therefore, subject to the pleading standards of Rule 9(b).
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rejected a broad obligation to disclose . . . .”). Plaintiff argues that Apple omitted facts necessary

2

to correct or supplement the following purported statement from Apple’s iOS 5 software license

3

agreement: “If your message cannot be sent as an iMessage, your message may be sent as an

4

SMS or MMS message, for which carrier messaging rates may apply.” (Opp. at 21:15-16

5

(internal quotation marks omitted) (emphasis added).) However, Plaintiff does not allege when

6

this purported representation was made or that Apple knew, or should have known, facts at that

7

time that made the representation incomplete or misleading. The quoted statement discloses that

8

potential carrier charges may apply if an Apple user has chosen to default to text messages when

9

iMessage is unavailable. It does not suggest that Apple will automatically detect when a user

10

switches to a non-Apple device and will ensure that all current Apple users will send messages to

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the former user as SMS/MMS text messages. Further, Plaintiff does not allege that she saw,

12

heard, or reviewed this purported “partial disclosure.” Thus, it cannot serve as the basis for her

13

new omission theory. See In re Facebook PPC Adver. Litig., No. 5:09-3043-JF, 2010 WL

14

3341062, at *10 (N.D. Cal. Aug. 25, 2010) (“Plaintiffs still should be able to identify with

15

particularity at least the specific policies and representations that they reviewed.”).

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Plaintiff argues in the alternative that Apple had a duty to disclose because it had

17

“exclusive knowledge” of the “consequences” users would experience after using iMessage and

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switching to a non-Apple device. (Opp. at 22:23-23:13.) Independent disclosure obligations

19

arise only when the alleged “defect” relates to a “safety issue.” Wilson, 668 F.3d at 1141.

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Plaintiff has identified no such issues. In any event, nothing in the Complaint indicates that

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Apple knew of any alleged defect regarding iMessage at the time Plaintiff purchased her iPhone

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or downloaded iOS 5. Indeed, the only complaints regarding iMessage cited in the Complaint are

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from 2014 (see Compl. ¶¶ 24-27), three years after Apple released iOS 5 and iMessage in 2011

24

(id. ¶ 6). Even if there was a duty to disclose, Plaintiff admits that Apple affirmatively disclosed

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to users that if they switch to a non-Apple device, they should turn off iMessage on their iPhone

2

before the switch.5 (Id. ¶ 27, Ex. 2 at 2.)

3
4

b.

No Reliance

Plaintiff now contends that her consumer protection claims are based on omissions made

5

in connection with iOS 5. iOS 5 was released along with iMessage and Messages for free

6

download on October 12, 2011 — seven months after Plaintiff purchased her iPhone. (Compl. ¶¶

7

5-6; Decl. of Jeffrey Kohlman ¶ 2.) By definition, Plaintiff cannot rely on post-sale

8

representations and omissions because they necessarily played no part in inducing her purchase.

9

See Hensley-Maclean v. Safeway, Inc., No. CV 11-01230 RS, 2014 WL 1364906, at *6 (N.D.

10

Cal. Apr. 7, 2014) (dismissing CLRA claim because plaintiff only alleged misrepresentations

11

after the time of sale, and stating that “the CLRA only applies to representation and omissions

12

that occur during pre-sale transactions”); Baba v. Hewlett-Packard Co., No. C 09-05946 RS,

13

2010 WL 2486353, at *5 (N.D. Cal. June 16, 2010) (noting that “plaintiffs have not sufficiently

14

alleged that they relied on any of HP’s statements or omissions in purchasing the computers”

15

where plaintiffs alleged that the defendant made misleading statements only after the sale

16

transaction. “This behavior is irrelevant to the question of whether HP made false statements to

17

plaintiffs before or during their respective transactions which induced them to purchase the

18

computers.”).

19

To overcome this insurmountable hurdle, Plaintiff proffers a novel definition of

20

“purchase.” According to Plaintiff, the purchase of her iPhone did not begin and end when she

21

bought the device in March 2011. Rather, because Plaintiff has the ability to download updates to

22

her iOS, she argues that her purchase is still ongoing and will continue as long as Apple offers

23

updates to its iOS. (See Opp. at 18:23-19:5.) When Plaintiff’s purchase will be finally

24

“consummated” is unclear. Plaintiff appears to contend that she can base her UCL and CLRA

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claims on the allegation that she purchased an iPhone 4 because of future omissions that occurred

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27
28

5

Although Plaintiff notes that some portion of the webpage on which the disclosure
appears was “last modified” in March 2014, he does not and cannot allege that the disclosure
appeared on Apple's website for the first time in March 2014. (Compl. ¶ 27, Ex. 2 at 2.)
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months after purchase concerning a messaging application she had never heard of, knew nothing

2

about, and did not know would ever be available. Unsurprisingly, Plaintiff offers no case law or

3

statutory support for this argument. Any alleged omissions in the iOS 5 License Agreement

4

(Plaintiff’s new theory) occurred well after she bought her iPhone 4; she could not have relied on

5

such omissions in connection with her purchase.

6

2.

7
8

Plaintiff Does Not Otherwise State a Claim Under the CLRA
a.

Plaintiff Does Not Allege a Sale or Lease

A free download is not a “sale or lease” within the meaning of the CLRA. See Schauer v.

9

Mandarin Gems of Cal., Inc., 125 Cal. App. 4th 949, 960 (2005). Plaintiff does not allege that

10

she purchased iOS 5, Messages, or iMessage. However, she now argues for the first time in her

11

Opposition that iOS 5 should be considered part of her original iPhone purchase several months

12

earlier. As discussed above, Plaintiff’s attempt to describe her purchase as open-ended and

13

perpetual is unsupported.6 Further, this Court has expressly rejected the notion that a plaintiff’s

14

original equipment purchase and later download of a free update to the operating software are one

15

and the same. See Wofford, 2011 WL 5445054, at *2. Specifically, the Court held that

16

“[p]laintiffs’ original purchase of the iPhone is a separate transaction from their free upgrade of

17

the iPhone’s operating system, which occurred about a year later. The iPhone’s software upgrade

18

was not intended to result in a ‘sale or lease’ because it was provided free of charge.” Id.

19

(emphasis added). Wofford is directly on point. Plaintiff cannot allege a “sale or lease” within

20

the meaning of the CLRA based on her download of free software.

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6

In re Sony PS3 Other OS Litigation, 551 Fed. App’x 916 (9th Cir. Jan. 6, 2014), on
which Plaintiff relies to make this argument, is completely inapposite. The In re Sony PS3 Court
did not consider whether the plaintiffs could tether their free download of a firmware update to
their earlier purchase of the video gaming system on which it was installed. Rather, the Court
considered whether the defendant’s alleged representations regarding a feature of the video
gaming system that existed at the time of the plaintiffs’ purchases were likely to mislead
consumers when the defendant later disabled that feature. Id. at 920-21. Here, it is undisputed
that Apple made no representations regarding iMessage when Plaintiff acquired her iPhone.
Indeed, iMessage did not exist in the marketplace at that time.
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2

b.

The CLRA Does Not Apply to Software

Plaintiff argues that iMessage is a “service” and a “good” covered by the CLRA. But to

3

make this argument, she ignores the allegations in which she admits that iMessage worked

4

through its client software “application,” Messages, and was a feature of Apple’s iOS 5 software.

5

(See, e.g., Compl. ¶¶ 1 (iMessage and Messages “were part of Apple’s software operating

6

system”), 11 (“Apple’s software on Apple iPhone and iPad wireless devices would employ

7

iMessage and Messages”).) Indeed, the first line of the iOS software license agreement excerpted

8

at page 13 of Plaintiff’s opposition describes iMessage as a “feature of the iOS Software.” (Opp.

9

at 13:5-6 (emphasis added).) This Court has already found that the same iOS operating system at

10

the core of Plaintiff’s claims is software and, therefore, not covered by the CLRA. Wofford, 2011

11

WL 5445054, at *2. The same conclusion is warranted here.

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13
14

None of the cases Plaintiff cites in her Opposition support treating iMessage, its
companion application, Messages, and iOS 5 as a good or service:


First, contrary to Plaintiff’s assertion, the Court in In re Apple & AT&T iPad

15

Unlimited Data Plan Litigation, 802 F. Supp. 2d 1070 (N.D. Cal. 2011), did not

16

hold that a data plan is a good or service covered by the CLRA. In re Apple &

17

AT&T involved Apple iPads with 3G data functionality. See id. at 1073-74. The

18

Court did not even discuss the CLRA’s “good or service” requirement.

19



Second, in Perrine v. Sega of America, Inc., No. C 13–01962 JSW, 2013 WL

20

6328489, at *4 (N.D. Cal. Oct. 3, 2013), the Court concluded that a video game

21

was a good within the meaning of the CLRA but noted that the question was a

22

“close[] call.” The Court emphasized that the plaintiffs described the product at

23

issue as a “game,” not software. Id. Here, by contrast, Plaintiff expressly refers to

24

iMessage and Messages “part of Apple’s software operating system.” (Compl. ¶

25

11 (emphasis added).)

26



Third, as with In re Apple & AT&T, the Court in In re Apple In-App Purchase

27

Litigation, 855 F. Supp. 2d 1030, 1038-39 (N.D. Cal. 2012), did not consider or

28

discuss whether the apps at issue constituted goods or services under the CLRA.
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

Finally, Plaintiff misstates the product at issue in Khoday v. Symantec Corp., 858

2

F. Supp. 2d 1004, 1012-14 (D. Minn. 2012). There, the plaintiffs’ claims related

3

to a form of insurance that they purchased at the same time they bought the

4

defendant’s antivirus software. Id. at 1008. Khoday court did not decide that the

5

antivirus software itself constituted a service under the CLRA.

6

3.

7
8
9
10

a.

Unlawful Prong — No Predicate Unlawful Act

Plaintiff has not stated a viable predicate claim under the CLRA or for tortious
interference with contract. Therefore, she cannot plead an “unlawful” act under the UCL.
Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824 (2006).

11
12

Plaintiff Does Not Otherwise State a Claim Under the UCL

b.

Unfair Prong — No Unfair Acts

Apple demonstrated in its motion that Plaintiff’s allegations do not satisfy any of the tests

13

for “unfairness” within the meaning of the UCL. (See Mot. at 14:16-15:16.) Plaintiff does not

14

attempt to address or rebut Apple’s arguments. As such, she concedes that her claim under the

15

unfair prong of the UCL should be dismissed.

16

III.

17

For the foregoing reasons, and for the reasons set forth in Apple’s motion, Apple

CONCLUSION

18

respectfully requests that the Complaint be dismissed.

19

Dated: September 18, 2014

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21

DAVID M. WALSH
TIFFANY CHEUNG
KAI S. BARTOLOMEO
MORRISON & FOERSTER LLP

22
By: /s/ David M. Walsh
DAVID M. WALSH

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24

Attorneys for Defendant
APPLE INC.

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