Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 1 of 20
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`JESSICA R. PERRY (STATE BAR NO. 209321)
`ANNIE PRASAD VADILLO (STATE BAR NO. 318440)
`JILLIAN V. KALTNER (STATE BAR NO. 324398)
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, CA 94025-1015
`Telephone:
`+1 650 614 7400
`Facsimile:
`+1 650 614 7401
`jperry@orrick.com
`avadillo@orrick.com
`jkaltner@orrick.com
`
`Attorneys for Defendant
`APPLE INC.
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
`
`DONALD K. SHRUHAN, JR. an individual,
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`Case No. 5:22-cv-5498-EJD
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`Plaintiff,
`
`v.
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`APPLE INC., a Delaware corporation, and
`DOES 1-10,
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`Defendants.
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`NOTICE OF MOTION AND MOTION
`TO DISMISS PLAINTIFF’S FIRST
`AMENDED COMPLAINT AND/OR
`STRIKE, OR IN THE ALTERNATIVE,
`FOR A MORE DEFINITE
`STATEMENT, BY DEFENDANT
`APPLE INC.; MEMORANDUM OF
`POINTS AND AUTHORITIES IN
`SUPPORT THEREOF
`
`Date: April 6, 2023
`Time: 9:00 a.m.
`Dept.: 4
`Judge: Hon. Edward J. Davila
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`MOTION TO DISMISS AND/OR STRIKE, OR, IN
`THE ALTERNATIVE, FOR A MORE DEFINITE
`STATEMENT [5:22-CV-5498-EJD]
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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 2 of 20
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .............................................................................................................. 1
`I.
`PROCEDURAL HISTORY ................................................................................................ 2
`II.
`RELEVANT FACTUAL ALLEGATIONS ....................................................................... 3
`III.
`IV. MOTION TO DISMISS ...................................................................................................... 3
`A.
`Legal Standard ........................................................................................................ 3
`B.
`Argument ................................................................................................................ 4
`1.
`Shruhan’s Fifth Cause of Action for Breach of Contract Must Be
`Dismissed Because it Fails to Allege the Relevant Terms of the
`“Contracts” .................................................................................................. 5
`Shruhan’s Fifth Cause of Action for Breach of Contract Must Be
`Dismissed Because It Fails to State a Claim ............................................... 6
`MOTION TO STRIKE ..................................................................................................... 10
`A.
`Legal Standard ...................................................................................................... 10
`B.
`Argument .............................................................................................................. 11
`1.
`Paragraphs 1-8 are Immaterial, Irrelevant, and Prejudicial....................... 11
`2.
`The Court Should Strike Shruhan’s Vague/Conclusory Language .......... 12
`3.
`The Court Should Strike Shruhan’s Request for Punitive Damages ........ 13
`VI. MOTION FOR MORE DEFINITE STATEMENT .......................................................... 14
`A.
`Legal Standard ...................................................................................................... 14
`B.
`Argument .............................................................................................................. 14
`VII. CONCLUSION ................................................................................................................. 15
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`2.
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`V.
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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 3 of 20
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
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`Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll.,
`77 F.3d 364 (11th Cir. 1996) ................................................................................................... 14
`
`Appling v. Wachovia Mortg., FSB,
`745 F. Supp. 2d 961 (N.D. Cal. 2010) ............................................................................ 7, 9, 10
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .................................................................................................................. 4
`
`Balisteri v. Pacifica Police Dept,
`901 F.2d 696 (9th Cir. 1988) ..................................................................................................... 4
`
`Barajas v. Carriage Servs., Inc.,
`No. 19-CV-02035-EMC, 2020 WL 1189854 (N.D. Cal. 2020) ............................................. 11
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ............................................................................................................ 4, 13
`
`Biggins v. Wells Fargo & Co.,
`266 F.R.D. 399 (N.D. Cal. 2009) ............................................................................................ 11
`
`Cam v. Jeffer, Mangels, Betler & Marmaro,
`35 Cal.App.4th 620,630 (1995)............................................................................................. 8, 9
`
`Caraccioli v. Facebook, Inc.
`167 F. Supp. 3d 1056 (N.D. Cal. 2016) ................................................................................ 7, 9
`
`Croshal v. Aurora Bank, F.S.B.,
`2014 WL 2796529 (N.D. Cal. 2014)......................................................................................... 8
`
`Fantasy, Inc. v. Fogerty,
`984 F.2d 1524 (9th Cir. 1993) ..................................................................................... 10, 11, 12
`
`Frances T. v. Village Green Owners Assn.
`(1986) 42 Cal.3d 490 ................................................................................................................ 7
`
`Garibaldi v. Bank of America Corp.,
`2014 WL 172284 (N.D. Cal. 2014)....................................................................................... 5, 6
`
`Jones v. AIG Risk Mgmt.,
`726 F. Supp. 2d 1049 (N.D. Cal. 2010) .................................................................................... 4
`
`McAfee v. Francis,
`2011 WL 3293759 (N.D. Cal. 2011)..................................................................................... 5, 6
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`ii
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`MOTION TO DISMISS AND/OR STRIKE, OR, IN
`THE ALTERNATIVE, FOR A MORE DEFINITE
`STATEMENT [5:22-CV-5498-EJD]
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`

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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 4 of 20
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`McCamey v. Hewlett Packard Co.,
`2011 WL 4056158 (E.D. Cal. 2011) ....................................................................................... 11
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`Miller v. Uni-Pixel Inc.,
`2017 WL 3007082 (N.D. Cal. 2017)....................................................................................... 11
`
`Murphy v. Hartford Accident & Indemnity Co.
`177 Cal. App. 2d 539 (1960) ..................................................................................................... 7
`
`NetApp, Inc. v. Nimble Storage, Inc.,
`2015 WL 400251 (N.D. Cal. 2015)......................................................................................... 12
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`Papasan v. Allain,
`478 U.S. 265 (1986) .................................................................................................................. 4
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`Parrino v. FHP, Inc.,
`146 F.3d 699 (9th Cir.1998) ...................................................................................................... 5
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`Patel v. U.S. Bank, N.A.
`2013 WL 3770836 (N.D. Cal. 2013)......................................................................................... 6
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`Rubinstein v. SAP AG,
`2012 WL 726269 (N.D. Cal. 2012)....................................................................................... 8, 9
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`Scott v. Phoenix Schools, Inc.,
`175 Cal. App. 4th 702 (2009).................................................................................................. 13
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`Shroyer v. New Cingular Wireless Servs., Inc.,
`622 F.3d 1035 (9th Cir. 2010) ................................................................................................... 4
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`Swartz v. KPMG LLP,
`476 F.3d 756 (9th Cir. 2007) ..................................................................................................... 5
`
`Tomlinson v. Qualcomm, Inc.,
`97 Cal.App.4th 934 (2002)........................................................................................................ 8
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`Warth v. Seldin,
`422 U.S. 490 (1975) ................................................................................................................ 14
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`Statutes
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`Cal. Civil Code §3294(b) .............................................................................................................. 13
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`California Business and Professions Code section 17200 et seq. ................................................... 3
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`California Labor Code (5) ............................................................................................................... 3
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`Civil Code §§ 43 and 52 ............................................................................................................... 12
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`Labor Code §§ 1102.5, 6310, 6404 ............................................................................................... 12
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`- iii -
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`MOTION TO DISMISS AND/OR STRIKE,
`OR, IN THE ALTERNATIVE, FOR A MORE
`DEFINITE STATEMENT [5:22-CV-5498-EJD]
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`

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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 5 of 20
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`Other Authorities
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`Fed. R. Civ. Proc. 12(f) ................................................................................................................. 10
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`Fed. R. Civ. Proc. 12(e) ...................................................................................................... 1, 13, 14
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`Fed. R. Civ. Proc. 12(b)(6) .................................................................................................. 1, 3, 4, 5
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`Fed. R. Civ. Proc. 12(f) ............................................................................................................. 1, 11
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`Fed. R. Civ. Proc. 15 ..................................................................................................................... 13
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`MOTION TO DISMISS AND/OR STRIKE,
`OR, IN THE ALTERNATIVE, FOR A MORE
`DEFINITE STATEMENT [5:22-CV-5498-EJD]
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`

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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 6 of 20
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`NOTICE OF MOTION AND MOTION
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`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
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`PLEASE TAKE NOTICE that on April 6, 2023 at 9:00 a.m. or as soon thereafter as the
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`matter may be heard, before the Honorable Edward J. Davila, Courtroom 4, United States District
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`Court, Northern District of California, located at 280 South 1st Street, San Jose, CA 95113,
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`Defendant Apple Inc. will move the Court for an Order dismissing and/or striking, or in the
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`alternative, for a more definite statement of Plaintiff Donald K. Shruhan Jr.’s First Amended
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`Complaint on the grounds that Plaintiff failed to state a claim upon which relief can be granted
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`pursuant to Federal Rule of Civil Procedure 12(b)(6), because he failed to attach the relevant
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`“contracts,” plead their terms, or sufficiently plead their legal effect, because even if Plaintiff had
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`sufficiently pled the contractual terms, he still fails to state a claim for breach of contract, and that
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`Plaintiff’s immaterial and impertinent allegations, including those regarding the alleged history of
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`Silicon Valley and other immaterial and vague contentions should be stricken pursuant to Federal
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`Rule of Civil Procedure 12(f). In the alternative, Apple asks the Court to order a more definite
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`statement to address the issues in Shruhan’s breach of contract claim pursuant to Fed. Rule Civ.
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`Proc. 12(e). This Motion is based upon this Notice of Motion and Motion, the Memorandum of
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`Points and Authorities in support thereof, the Request for Judicial Notice, the Declaration of
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`Annie Prasad Vadillo, the Reply brief filed in support of this Motion, the papers on file in this
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`action, oral argument at the hearing and any other matters that the Court may properly consider.
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`Plaintiff Donald Shruhan’s new Fifth Cause of Action for Breach of Contract – which
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`cobbles together four jumbled and meritless theories – should be dismissed for two reasons.
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`First and crucially, Shruhan fails to attach any of the purported “contracts” upon which he
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`bases his breach of contract claim, fails to set out their terms verbatim, and fails to sufficiently
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`plead their legal effect. It is entirely unclear what promises Apple allegedly breached or if the
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`alleged “contracts” even exist. Shruhan cannot avoid a Rule 12(b)(6) motion by purposefully
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`omitting the supposed documents on which his breach of contract claim is based.
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`1
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`MOTION TO DISMISS AND/OR STRIKE, OR, IN
`THE ALTERNATIVE, FOR A MORE DEFINITE
`STATEMENT [5:22-CV-5498-EJD]
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`

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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 7 of 20
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`Second, Shruhan insufficiently alleges nearly every element of a viable breach of contract
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`claim, including specific contractual terms constituting a promise and Apple’s breach of that
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`promise. Thus, his Fifth Cause of Action must be dismissed. And to the extent the Court does not
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`dismiss Shruhan’s breach of contract claim in its entirety, the Court should order a more definite
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`statement that specifically identifies and attaches the purported contracts, their terms, and the
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`action(s) that allegedly constituted a breach.
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`This Court must also strike Shruhan’s improper and immaterial allegations about the
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`alleged history of ageism in Silicon Valley, his insufficiently pled request for punitive damages,
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`and other intolerably vague language. The “history of ageism” allegations are non-specific,
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`inflammatory, prejudicial allegations that have nothing to do with Shruhan. His request for
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`punitive damages should be stricken because he fails to plead any facts to establish that any
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`managing agent of Apple acted with malice, oppression or fraud. Finally, Shruhan’s claim that
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`Apple violated “other” unspecified laws without stating what they are is improper and must be
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`stricken.
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`As described in detail below, the Court should grant this Motion.
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`II.
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`PROCEDURAL HISTORY
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`On September 26, 2022, Shruhan filed a complaint in Northern District of California
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`(Case No. 5:22-cv-05481-EJD). Declaration of Annie Vadillo in Support of Motion to Dismiss
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`and/or Strike, or in the Alternative, for a More Definite Statement (“Vadillo Decl.”) ¶ 2. The
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`following day, Apple removed the instant identical lawsuit (Case No. 5:22-cv-05498-EJD), which
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`was pending in Santa Clara Superior Court, to the Northern District of California. Id. Both
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`complaints contained factually identical allegations and alleged the same causes of action. Id.
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`Apple was not served with either complaint until weeks later, on October 12, 2022, when Shruhan
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`served Apple with both the state court and federally filed actions. Id. at ¶ 3.
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`On November 2, 2022, Apple filed a Motion to Dismiss and/or Strike in both of the
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`pending actions. Id. at ¶ 4. On November 16, 2022, Shruhan dismissed the federally filed action
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`and filed an amended complaint in the instant action, adding several claims. Id. at ¶ 5. The First
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`Amended Complaint alleges: (1) FEHA age discrimination, (2) FEHA failure to prevent age
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`MOTION TO DISMISS AND/OR STRIKE,
`OR, IN THE ALTERNATIVE, FOR A MORE
`DEFINITE STATEMENT [5:22-CV-5498-EJD]
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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 8 of 20
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`discrimination, (3) retaliation in violation of FEHA, (4) retaliation in violation of the California
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`Labor Code, (5) breach of contract, and (6) violation of California Business and Professions Code
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`section 17200 et seq. See First Amended Complaint (“FAC”).
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`III. RELEVANT FACTUAL ALLEGATIONS
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`Shruhan began working for Apple Inc. in 2008 as the Senior Director of Global Security
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`and IP Enforcement for the Asia Pacific region. FAC ¶ 18. Shruhan alleges that “at all times
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`relevant to the allegations made in this Complaint [he] was domiciled in Pima County, Arizona”.
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`FAC ¶ 15.
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`Shruhan alleges he received “unequivocally positive” performance reviews from his
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`supervisors from 2017-2021, when he was 62-66 years old. FAC ¶ 23. In 2017 and 2018, at ages
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`62 and 63, Shruhan alleges he received RSUs valued at $850,000 and $800,000. FAC ¶ 33.
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`Shruhan alleges that in 2018, Apple informed him it would not renew his expat package and he’d
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`therefore leave his position in the Asia Pacific region by 2020. FAC ¶ 26. Shruhan alleges that
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`one of his supervisors then negotiated to keep him at Apple, which he only agreed to consider if
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`Apple met his conditions, one of which was to have less responsibility and be at a lower level.
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`FAC ¶ 26. He claims he “believes” this was memorialized in a communication between his
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`managers and HR. FAC ¶ 28. Shruhan was 63 years old at this time. FAC ¶¶ 29-30.
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`Shruhan alleges on September 26, 2019, despite his “excellent” performance review,
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`Apple did not award him an RSU grant. FAC ¶ 30. He alleges his then-supervisor confirmed he
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`did not award RSUs because RSUs were designed as an investment in the future and a retention
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`hook. Shruhan contends that explanation “implied” that the decision was made because of his
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`age. FAC ¶ 34.
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`Shruhan alleges that when he raised a concern about not receiving the RSU grant, Apple
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`explained that he was subject to a “clawback policy.” FAC ¶¶ 35-6.
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`IV. MOTION TO DISMISS
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`A.
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`Legal Standard
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`“[A] defendant should not be forced to undergo costly discovery unless the complaint
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`contains enough detail, factual or argumentative, to indicate that the plaintiff has a substantial
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`MOTION TO DISMISS AND/OR STRIKE,
`OR, IN THE ALTERNATIVE, FOR A MORE
`DEFINITE STATEMENT [5:22-CV-5498-EJD]
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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 9 of 20
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`
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`case”. Jones v. AIG Risk Mgmt., 726 F. Supp. 2d 1049, 1059 (N.D. Cal. 2010) (citations omitted).
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`Complaints “must contain either direct or inferential allegations respecting all the material
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`elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 562 (2007). A district court properly dismisses a complaint if the
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`complaint (1) lacks a cognizable legal theory or (2) fails to plead sufficient facts. Balisteri v.
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`Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1988); see also Fed. R. Civ. P. 12(b)(6). To
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`survive a motion to dismiss, a complaint must allege sufficient facts under a cognizable legal
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`theory to “state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs.,
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`Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). It requires more than “an unadorned, the defendant-
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`unlawfully-harmed-me accusation” or “‘labels and conclusions’ or ‘a formulaic recitation of the
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`elements of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
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`550 U.S. at 570). A claim has facial plausibility “when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Iqbal, 566 U.S. at 684. The court need not accept “a legal conclusion couched as a
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`factual allegation” as true. Papasan v. Allain, 478 U.S. 265, 286 (1986).
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`B.
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`Argument
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`Shruhan’s Fifth Cause of Action for Breach of Contract, appears to allege the following
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`theories:
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` “Apple’s Compensation Policies . . . became an implicit part” of Shruhan’s
`“employment contracts” and “when Apple personnel failed to make an RSU Refresh
`Grant consistent with its Compensation Policies” it breached “its duty of good faith
`and fair dealing in connection with [his] Employment Agreement.” FAC ¶¶ 85, 87.
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` “When Apple Personnel failed to make a RSU Refresh Grant consistent with its
`Compensation Policies, Apple breached [] the implied-in-fact contract formed by its
`written policies” FAC ¶ 87.
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`
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` 
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` Each of Shruhan’s “RSU Refresh Grant[s] was a written offer that was accepted by
`Plaintiff. . . [R]ecoupment of unvested RSU must be made pursuant to company
`policy. [footnote omitted]. Apple’s claimed clawback of RSUs awarded to Plaintiff
`pursuant to said Refresh Grants did not follow Apple’s policy, and was therefore in
`breach” of some unspecified “express written agreement. FAC ¶ 88.
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` Shruhan’s alleged “Repatriation Agreement stipulated that he shall remain at least a
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`- 4 -
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`MOTION TO DISMISS AND/OR STRIKE,
`OR, IN THE ALTERNATIVE, FOR A MORE
`DEFINITE STATEMENT [5:22-CV-5498-EJD]
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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 10 of 20
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`Director-level employee, be permitted to work from Arizona, and continue to receive a
`salary commensurate with his performance as a Director-level employee.” Apple has
`breached this agreement by denying Shruhan “yearly merit-pay increases that were
`granted to other U.S. Director-level employees.” FAC ¶ 89.
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`These theories are unintelligible and fail as a matter of law. First and fatally, Shruhan fails
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`to attach the “contracts” or set out their terms with any specificity. And second, Shruhan’s
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`allegations fail to satisfy the most basic elements of a breach of contract claim.
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`1.
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`Shruhan’s Fifth Cause of Action for Breach of Contract Must Be
`Dismissed Because it Fails to Allege the Relevant Terms of the
`“Contracts”
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` “In pleading the existence of an express written contract, the plaintiff, at [his] election,
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`may set it forth verbatim in the complaint, attach a copy as an exhibit, or plead it according to its
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`legal effect.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1235
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`(4th Ed.). “[M]ere conclusions that a contract existed and was breached will be insufficient to
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`survive a motion to dismiss.” Garibaldi v. Bank of America Corp., 2014 WL 172284 at *3 (N.D.
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`Cal. 2014);1 McAfee v. Francis, 2011 WL 3293759, at *2 (N.D. Cal. 2011) (dismissing breach of
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`contract claims for failure to attach copies of alleged contract to the complaint or plead essential
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`terms of the agreement).2
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`Further, it is against public policy to permit plaintiffs to “surviv[e] a Rule 12(b)(6) motion
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`by deliberately omitting ... documents upon which their claims are based” Parrino v. FHP, Inc.,
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`146 F.3d 699, 706 (9th Cir.1998), superseded by statute on other grounds as stated in Abrego v.
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`Dow Chem. Co., 443 F.3d 676 (9th Cir.2006) (outlining policy concern of preventing plaintiffs
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`from bypassing Rule 12(b)(6) mechanism by deliberately omitting essential documents); Swartz
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`1 Much like the instant case, in Garibaldi, the plaintiff failed to attach the alleged contract and
`instead “repeatedly reference[d] defendant’s ‘uniform policies’” as the basis of her breach of
`contract claim. Garibaldi, 2014 WL 172285 at *3. The Court rejected plaintiff’s argument that
`she had sufficiently pled breach of contract by “alleging the essence of what [she] believes she
`was promised. . . [because it was] impossible to determine the scope of the alleged contract, and
`therefore, impossible to determine whether plaintiff has properly pled breach.” Id.
`2 In McAffee, “no copies of the agreements [were] attached to the Complaint, nor [were] the
`essential terms of the agreement, other than amount, pled[.]” McAfee, 2011 WL 3293759, at *2.
`The Court reasoned “[w]ithout the essential terms of the agreement and more specific allegations
`as to breach, Plaintiffs fail to state breach of contract claims.” Id.
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`MOTION TO DISMISS AND/OR STRIKE,
`OR, IN THE ALTERNATIVE, FOR A MORE
`DEFINITE STATEMENT [5:22-CV-5498-EJD]
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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 11 of 20
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`v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (same).
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` The First Amended Complaint violates this very public policy. It falls woefully short of
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`required pleading standards, both obfuscating from Apple the basis of the claims against it and in
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`turn omitting the essential elements of a breach of contract claim. Shruhan’s “breach of contract”
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`claim references four alleged “contracts”: (1) “Apple’s Compensation Policies governing RSU
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`Refresh Grants,” (2) Shruhan’s “RSU Refresh Grants,” (3) Shruhan’s “Repatriation Agreement,”
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`(4) and Shruhan’s Employment Agreement. Plaintiff has not attached any of these alleged
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`“contracts” to his FAC nor pled their essential terms. Because the alleged “contracts” were not
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`attached to the Complaint, nor were their terms either set forth verbatim or stated in their legal
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`effect, Shruhan fails to adequately plead this claim and it must be dismissed in its entirety.
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`Garibaldi, 2014 WL 172285 at *3; McAfee, 2011 WL 3293759, at *2; Patel v. U.S. Bank, N.A.
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`2013 WL 3770836 *4 (N.D. Cal. 2013)(“[plaintiffs] also fail to attached a copy of the [contract]
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`to the complaint or set out the agreement’s terms in the body of their complaint, further dooming
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`their claim.”)
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`2.
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`Shruhan’s Fifth Cause of Action for Breach of Contract Must Be
`Dismissed Because It Fails to State a Claim
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`
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`Even if Shruhan had set out the “contracts” terms, his claims still fail because he has not
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`adequately pled each required element of a breach of contract claim.
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`a.
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`Plaintiff Fails to Plead a Breach of the Employment Agreement
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`Shruhan claims that Apple breached his Employment Agreement3 because Apple’s
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`unspecified “Compensation Policies” became an “implicit part” of Shruhan’s Employment
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`Agreement, and then Apple breached the “duty of good faith and fair dealing” with respect to the
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`Employment Agreement when it “failed to make an RSU Refresh Grant consistent with” said
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`unspecified “Compensation Policies.” FAC ¶ 85, 87. This is nonsensical.
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`3Apple understands that the term “Employment Agreement” references Shruhan’s executed Offer
`Letter, a true and correct copy of which is included in Defendant’s Request for Judicial Notice,
`Exhibit A. The Offer Letter provides that Shruhan’s employment is at will and that Apple
`reserves the right to alter the terms and conditions of his employment at any time. Id. Apple does
`not concede the Offer Letter is an enforceable contract.
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`- 6 -
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`MOTION TO DISMISS AND/OR STRIKE,
`OR, IN THE ALTERNATIVE, FOR A MORE
`DEFINITE STATEMENT [5:22-CV-5498-EJD]
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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 12 of 20
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`First and foremost, there is no “Employment Agreement.” Shruhan has an offer letter,
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`which is attached as Exhibit A to the Request for Judicial Notice, which contains specific terms.
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`RJN, Ex. A. Among these terms are that Shruhan’s employment is at-will and that Apple reserves
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`the right to alter the terms and conditions of his employment at any time. To the extent Shruhan
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`argues there is any other “Employment Agreement,” none exists.
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`To plead a claim for breach of contract under California law, Shruhan must allege: (1)
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`existence of the contract; (2) Shruhan’s performance or excuse for nonperformance; (3) Apple’s
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`breach; and (4) damages to Shruhan as a result of the breach. Appling v. Wachovia Mortg., FSB,
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`745 F. Supp. 2d 961, 974 (N.D. Cal. 2010). “To properly plead breach of contract, ‘[t]he
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`complaint must identify the specific provision of the contract allegedly breached by the
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`defendant.’” Caraccioli v. Facebook, Inc. 167 F. Supp. 3d 1056, 1064 (N.D. Cal. 2016); Frances
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`T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 512-513 (breach of contract claim must
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`fail where plaintiff does not allege that any provision imposed the specific obligation on
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`defendant); Murphy v. Hartford Accident & Indemnity Co. (1960) 177 Cal. App. 2d 539, 543
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`(“for an action to be based on an instrument in writing, the writing must express the obligation
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`sued upon”).
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`Shruhan’s claim fails fundamentally because it does not identify any specific language
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`constituting a promise in the alleged Employment Agreement (nor does such language exist) that
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`required Apple to grant Shruhan RSU Refresh grants consistent with whatever unspecified
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`“Compensation Policies” Shruhan references. RJN, Exhibit A. At most, the Shruhan’s executed
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`Offer Letter provides that Apple would grant Shruhan certain RSUs at the time of his hire in
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`2008. Id. There is no allegation Apple failed to do so.
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`Because Shruhan fails to allege any specific contractual term within the alleged
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`“Employment Agreement” that Apple breached, his breach of contract claim based on this
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`document fails as a matter of law
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`b.
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`Unspecified “Compensation Policies” Cannot Form the Basis
`for This Claim Because the Alleged Employment Agreement
`Was Fully Integrated
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`Shruhan also alleges that Apple’s “written policies” created an “implied-in-fact contract”
`MOTION TO DISMISS AND/OR STRIKE,
`OR, IN THE ALTERNATIVE, FOR A MORE
`DEFINITE STATEMENT [5:22-CV-5498-EJD]
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`Case 5:22-cv-05498-EJD Document 19 Filed 11/30/22 Page 13 of 20
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`
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`that Apple breached when “Apple personnel failed to make an RSU Refresh Grant consistent with
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`its Compensation Policies.” FAC ¶ 87. Shruhan’s theory is inconsistent with basic contract law. It
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`is well-established that the terms of an alleged implied contract cannot overcome the express
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`terms of a written agreement. Rubinstein v. SAP AG, 2012 WL 726269 at *3-4 (N.D. Cal. 2012)
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`(holding “Plaintiff's allegations of an implied contract are precluded by his written agreement”).
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`Shruhan’s “Employment Agreement” (i.e. his executed Offer Letter) is a fully integrated
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`agreement. RJN, Ex. A (“[Y]ou agree and acknowledge that you have not relied upon any other
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`promises or representations made by Apple or our representatives, except those made in this
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`letter.”). Whatever supposed implicitly absorbed or implied-in-fact “Compensation Policies”
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`regarding RSU grants Shruhan refers to could not have created RSU obligations that are
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`inconsistent with the express terms of his executed Offer Letter. Rubinstein, 2012 WL 726269 at
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`*3-4; see also Tomlinson v. Qualcomm, Inc., 97 Cal.App.4th 934, 944–945 (2002) (rejecting
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`plaintiff’s argument that statements in personnel handbook created an “implied agreement” that
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`contradicted explicit terms of plaintiff’s employment contract); see also Cam v. Jeffer, Mangels,
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`Betler & Marmaro, 35 Cal.App.4th 620,630 (1995) (“There cannot be a valid express contract
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`and an implied contract, each embracing the same subject, but requiring different results. The
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`express term is controlling even if it is not contained in an integrated employment contract.”).
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`Accordingly, Shruhan fails to plead a breach of a supposed implicit contract.
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`
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`c.
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`Plaintiff Fails to Sufficiently Allege a “Repatriation
`Agreement,” Its Supposed Promise, and a Breach
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`Due to the exceptional vagueness with which Shruhan pleads this claim, Apple is once
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`again unable to understand what the alleged “Repatriation Agreement” is, its terms, or whether it
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`even exists. Shruhan first appears to allege, “upon information and belief,” that his “Repatriation
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`Agreement” is actually a written commu