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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ASHLEY M GJOVIK,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`Case No. 23-cv-04597-EMC
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`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANT’S
`MOTION TO DISMISS; DENYING
`DEFENDANT’S MOTION TO STRIKE;
`AND GRANTING PLAINTIFF’S
`MOTION TO STRIKE
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`Docket Nos. 78-79, 101
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`
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`Plaintiff Ashley Gjovik, proceeding pro se,1 is a former employee of Defendant Apple, Inc.
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`She started to work for Apple in February 2015 and was ultimately terminated on September 9,
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`2021. On September 7, 2023, about two years after she was fired, she initiated this lawsuit. In the
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`operative fourth amended complaint (“4AC”), Ms. Gjovik asserts thirteen different claims against
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`Apple, all predicated on state law. For the most part, the claims fall into two basic categories: (1)
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`Apple engaged in environmentally unsafe conduct that harmed Ms. Gjovik and (2) Apple
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`retaliated against Ms. Gjovik – including by terminating her from employment – because she
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`complained about certain company conduct, including but not limited to environmentally unsafe
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`conduct.
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`Now pending before the Court are three motions: (1) a motion to dismiss filed by Apple,
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`targeted at eleven of the thirteen claims (either in whole or in part); (2) a motion to strike filed by
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`Apple; and (3) a motion to strike filed by Ms. Gjovik. Having considered the parties’ briefs and
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`accompanying submissions, the Court hereby GRANTS in part and DENIES in part Apple’s
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`1 Ms. Gjovik appears to have a J.D. from Santa Clara University.
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`Northern District of California
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`United States District Court
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`Case 3:23-cv-04597-EMC Document 112 Filed 10/01/24 Page 2 of 41
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`motion to dismiss, DENIES Apple’s motion strike, and GRANTS Ms. Gjovik’s motion to strike.
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`I.
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`FACTUAL & PROCEDURAL BACKGROUND
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`The factual allegations in the 4AC largely replicate the factual allegations in the prior third
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`amended complaint (“TAC”). As the Court stated in its prior order, the main categories of alleged
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`misconduct by Apple are as follows:
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`(1) During her employment with Apple, Ms. Gjovik lived in an
`apartment near an Apple factory (known as the ARIA factory) and
`became ill because the factory released toxic substances into the
`environment.
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`(2) Ms. Gjovik’s office at Apple (known as Stewart 1) was located on
`a contaminated site subject to EPA regulation, i.e., a Superfund
`site, and she became ill because of Apple’s actions/omissions
`related to the site.
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`(3) Apple made employees, including Ms. Gjovik, participate in
`studies related to Apple products that were invasive to their
`privacy.
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`(4) Apple retaliated against Ms. Gjovik for making complaints about
`harassment and environmental safety. Ms. Gjovik’s complaints
`included
`internal complaints, complaints
`to governmental
`agencies, complaints to the press, and complaints made in social
`media. The retaliation by Apple included but was not limited to
`the termination of Ms. Gjovik from employment.
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`Docket No. 73 (Order at 2).
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`Based on, inter alia, the above allegations, Ms. Gjovik asserts the following causes of
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`action in the 4AC:
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`(1) Wrongful termination in violation of public policy.
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`(2)
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`Violation of the California Whistleblower Act. See, e.g., Cal. Lab. Code §
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`1102.5(b) (providing that an employer “shall not retaliate against an employee
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`for disclosing information . . . to [inter alia] a government or law enforcement
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`agency [or] to a person with authority over the employee . . . if the employee
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`has reasonable cause to believe that the information discloses a violation of a
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`state or federal statute, or a violation of or noncompliance with a local, state, or
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`federal rule or regulation”).
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`(3)
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`Violation of California Labor Code § 6310. See, e.g., id. § 6310(a) (providing
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`Northern District of California
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`Case 3:23-cv-04597-EMC Document 112 Filed 10/01/24 Page 3 of 41
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`that “[n]o person shall discharge or in any manner discriminate against any
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`employee because the employee has [e.g.] [m]ade any oral or written complaint
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`to the [Division of Occupational Safety and Health] [or] other governmental
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`agencies having statutory responsibility for or assisting the division with
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`reference to employee safety or health”).
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`(4)
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`Violation of California Labor Code § 6399.7. See id. § 6399.7 (providing, inter
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`alia, that “[n]o person shall discharge or in any manner discriminate against,
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`any employee because such employee has filed any complaint . . . under or
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`related to the provisions of this chapter [i.e., the Hazardous Substances
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`Information and Training Act]”).
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`(5)
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`Violation of California Labor Code § 98.6. See id. § 98.6(a) (providing that
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`“[a] person shall not discharge an employee or in any manner discriminate,
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`retaliate, or take any adverse action against any employee . . . because the
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`employee . . . engaged in any conduct delineated in this chapter . . . or because
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`the employee . . . has filed a bona fide complaint or claim . . . under or relating
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`to their rights that are under the jurisdiction of the Labor Commissioner . . . or
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`because of the exercise by the employee . . . on behalf of themselves or others
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`of any rights afforded them”).
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`(6)
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`Violation of California Labor Code §§ 232, 232.5, 1101, and 1102. See id. §
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`232 (providing, inter alia, that an employer may not “[r]equire, as a condition
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`of employment, that an employee refrain from disclosing the amount of his or
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`her wages”); id. § 232.5 (providing, inter alia, that an employer may not
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`“[r]equire, as a condition of employment, that an employee refrain from
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`disclosing information about the employer’s working conditions”); id. § 1101
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`(providing, inter alia, that an employer shall not “make, adopt, or enforce any
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`rule, regulation or policy . . . [c]ontrolling or directing, or tending to control or
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`direct the political activities or affiliations of employees”); id. § 1102
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`(providing that “[n]o employer shall coerce or influence . . . his employees
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`Case 3:23-cv-04597-EMC Document 112 Filed 10/01/24 Page 4 of 41
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`through or by means of threat of discharge or loss of employment to adopt or
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`follow or refrain from adopting or following any particular course or line of
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`political action or political activity”).
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`(7)
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`Violation of California Labor Code § 96(k). See id. § 96(k) (providing that the
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`Labor Commissioner “shall, upon the filing of a claim therefor by an employee,
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`. . . take assignments of . . . [c]laims for loss of wages as the result of demotion,
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`suspension, or discharge from employment for lawful conduct occurring during
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`nonworking hours away from the employer’s premises”).
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`(8)
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`(9)
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`Breach of the implied covenant of good faith and fair dealing.
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`Violation of California Business & Professions Code § 17200.
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`(10)
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`Intentional infliction of emotional distress – “traditional.”
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`(11) Creation and maintenance of a private nuisance at the ARIA factory.
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`(12) Strict liability for ultrahazardous activities at the ARIA factory.
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`(13)
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`Intentional infliction of emotional distress – fear of cancer.
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`Apple has challenged all of the above claims, either in whole or in part, except for the first
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`and third causes of action.
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`A.
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`Legal Standard
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`II.
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`DISCUSSION
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`Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
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`complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil
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`Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss
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`after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic
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`Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must .
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`. . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d
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`1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and
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`Case 3:23-cv-04597-EMC Document 112 Filed 10/01/24 Page 5 of 41
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`construe[s] the pleadings in the light most favorable to the nonmoving party.”2 Manzarek v. St.
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`Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a
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`complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient
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`allegations of underlying facts to give fair notice and to enable the opposing party to defend itself
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`effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The
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`plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
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`possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).
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`B.
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`Rule 12(g)(2)
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`Before the Court considers the specific arguments made by Apple in its motion, and Ms.
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`Gjovik’s responses thereto, it notes that there is a procedural matter that affects several, although
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`not all, claims. Specifically, in the pending motion to dismiss, which targets the 4AC, Apple
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`makes arguments that it could have made in its prior motion to dismiss the TAC but did not.
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`2 On a motion to dismiss, a court generally limits its review to the four corners of the complaint.
`See Van Buskirk v. Cnn, 284 F.3d 977, 980 (9th Cir. 2002) (“Ordinarily, a court may look only at
`the face of the complaint to decide a motion to dismiss.”); Lee v. City of Los Angeles, 250 F.3d
`668, 688 (9th Cir. 2001) (“[W]hen the legal sufficiency of a complaint's allegations is tested by a
`motion under Rule 12(b)(6), ‘review is limited to the complaint.’”). Accordingly, the Court does
`not consider the declaration filed by Cher Scarlett at Docket No. 99 (and grants Ms. Gjovik’s
`motion to strike the same). For the same reasons, the Court does not consider the bulk of the
`Gjovik Declaration, including Exhibits D-F thereto.
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`Exhibits A-C attached to the Gjovik Declaration are documents that Ms. Gjovik created for
`the asserted purpose of helping the Court understand the history of her claims. They are more in
`the nature of attorney argument and theoretically could be considered. The Court, however,
`largely finds the exhibits unhelpful. Moreover, the exhibits arguably reflect an attempt on the part
`of Ms. Gjovik to get around the page limits on briefing.
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`Finally, a court may take judicial notice of documents, if appropriate, on a 12(b)(6)
`motion. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) (noting that
`a court may “consider materials outside a complaint” at the 12(b)(6) phase if it can, e.g., take
`judicial notice of materials). Ms. Gjovik has filed a request for judicial notice (“RJN”) implicating
`fifteen documents. They include a report issued by the EPA on the ARIA factory (Exhibit A); an
`article on hazardous production gases (Exhibit C); and chemical safety cards for gases (Exhibit E).
`It is questionable whether all of the documents can be judicially noticed (e.g., the articles).
`However, the bigger problem for Ms. Gjovik is that she has failed to explain how the RJN is
`relevant to the arguments made in her opposition brief. To be clear, the opposition does contain
`references to the RJN but those references are not followed by any concrete explanation of how
`the documents at issue are relevant. Thus, at the end of the day, the RJN is largely unhelpful, too.
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`Notably, this includes challenges to claims pled in the 4AC that Apple did not challenge when
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`pled in the prior TAC (e.g., the claim that the ARIA factory constituted a private nuisance and the
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`claim that Apple violated certain protections provided by California Labor Code §§ 232 and
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`232.5).
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`Ms. Gjovik argues that any of these arguments that could have been made, but were not,
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`should be entirely disregarded. In support, she cites Federal Rule of Civil Procedure 12(g)(2).
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`That rule provides as follows: “Except as provided in Rule 12(h)(2) or (3), a party that makes a
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`motion under this rule must not make another motion under this rule raising a defense or objection
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`that was available to the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). The
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`exception identified in Rule 12(h)(2) provides: “[f]ailure to state a claim upon which relief can be
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`granted . . . may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a
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`motion under Rule 12(c); or at trial.” Fed. R. Civ. P. 12(h)(2).
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`As a facial matter, Rule 12(g)(2) does lend support to Ms. Gjovik’s position. However, in
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`In re Apple iPhone Antitrust Litigation, 846 F.3d 313 (9th Cir. 2017), the Ninth Circuit explained
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`that the rule is not as unforgiving as it might appear at first blush:
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`We read Rule 12(g)(2) in light of the general policy of the Federal
`Rules of Civil Procedure, expressed in Rule 1. That rule directs that
`the Federal Rules "be construed, administered, and employed by the
`court and the parties to secure the just, speedy, and inexpensive
`determination of every action and proceeding." Denying late-filed
`Rule 12(b)(6) motions and relegating defendants to the three
`procedural avenues specified in Rule 12(h)(2) can produce
`unnecessary and costly delays, contrary to the direction of Rule 1.
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`Id. (emphasis added). Accordingly, “‘[a]lthough Rule 12(g) technically prohibits successive
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`motions to dismiss that raise arguments that could have been made in a prior motion . . . courts
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`faced with a successive motion often exercise their discretion to consider the new arguments in the
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`interests of judicial economy.’” Id. at 319.
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`Here, the Court shall, in the exercise of its discretion, consider Apple’s new arguments. If
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`the Court were to reject consideration of the arguments through the 12(b)(6) vehicle, Apple would
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`no doubt raise the same arguments through a 12(c) motion. As a matter of judicial economy, it
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`makes more sense to address the arguments sooner rather than later. Furthermore, there is no
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`indication that Apple’s new arguments are being made for purposes of delay or some other
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`“strategically abusive purpose.” Id. at 319-20. Rather, Apple is trying to streamline this case
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`which, quite frankly, Ms. Gjovik has made unwieldy. Furthermore, Apple’s arguments are made
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`in good faith as reflected by the fact that the Court finds merit to Apple’s motion to dismiss.
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`C.
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`Ms. Gjovik’s Claims
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`Ms. Gjovik’s 4AC continues to be a sprawling pleading with many claims. She has also
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`made her pleading messier by choosing to restructure some of her claims – in particular, her
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`retaliation claims. For example, in the TAC, she asserted a claim for violation of California Labor
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`Code § 98.6 which was predicated on protections provided in §§ 96(k), 232, and 232.5. See TAC,
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`Count 9. However, in the 4AC, she now splits that claim up into three claims: a violation of §
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`98.6; a violation of §§ 232 and 232.5 (as well as §§ 1101 and 1102); and a violation of § 96(k).
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`See 4AC (Counts 5-7).
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`As a result of the above, Apple’s motion to dismiss can be difficult to follow. The Court
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`has attempted to provide some clarity by grouping Ms. Gjovik’s claims for analysis. The first
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`group (addressed in Part II.D) consists of her retaliation claims. The second group (addressed in
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`Part II.E) consists of her claims asserting injury as a result of environmentally unsafe conditions.
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`These two groups seem to contain the most important claims being made by Ms. Gjovik. Finally,
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`the last group (addressed in Part II.F) consists of her remaining claims.
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`D.
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`Retaliation Claims
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`The retaliation claims are in Counts 1-7. In the motion to dismiss, Apple challenges all of
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`the claims, either in whole or part, except for Count 1 (termination in violation of public policy)
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`and Count 3 (violation of California Labor Code § 6310).
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`1.
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`Count 2 – Claim for Violation of § 1102.5
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`In Count 2, Ms. Gjovik asserts a violation of the California Whistleblower Act. See Cal.
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`Lab. Code § 1102.5. Section 1102.5 provides in relevant part that an employer
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`shall not retaliate against an employee for disclosing information . . .
`to [inter alia] a government or law enforcement agency [or] to a
`person with authority over the employee . . . if the employee has
`reasonable cause to believe that the information discloses a violation
`of a state or federal statute, or a violation of or noncompliance with
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`a local, state, or federal rule or regulation.
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`Id. § 1102.5(b).
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`In the prior TAC, Ms. Gjovik included a § 1102.5 claim. In its order addressing the TAC,
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`the Court noted that, for the § 1102.5 claim, Ms. Gjovik made two main allegations – specifically,
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`that Apple retaliated after she complained to various government agencies about (1) the Gobbler
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`application and (2) environmental and safety violations. On (1), the Court held that Ms. Gjovik
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`sufficiently alleged that the Gobbler application violated the right to privacy protected by the
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`California Constitution; however, she failed to allege to whom she made complaints about the
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`Gobbler application. On (2), Apple argued that Ms. Gjovik failed to specify which environmental
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`or safety statutes/regulations were allegedly violated. The Court did not decide whether the failure
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`to cite specific provisions deprived Apple of the right to fair notice about the scope of Ms.
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`Gjovik’s claims. This was because, “[a]t the hearing, Ms. Gjovik indicated that she had a list of
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`provisions at hand, and, as the Court is already giving Ms. Gjovik leave to amend other claims,
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`she may supplement this claim by including the specific provisions in the amended pleading.”
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`Docket No. 73 (Order at 35-36).
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`In the 4AC, Ms. Gjovik now alleges that Apple retaliated against her after she made
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`complaints to, inter alia:
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`(1) Apple management, the EPA, California EPA, and the California Air Resource
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`Board about violations of CERCLA, RCRA, and/or the Clean Air Act;
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`(2) the Santa Clara County DA’s Office, the EPA, and Apple about fraud related to
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`environmental crimes;
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`(3) the NLRB, DOL, California DOL, and Cal OSHA about violations of the NLRA,
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`the California Labor Code, and OSHA;
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`(4) Apple management about violations of the right to privacy under the California
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`Constitution;
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`(5) the DOJ, EEOC, and California DFEH about violations of anti-discrimination laws
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`(on the basis of sex and disability); and
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`(6) her supervisors (including Mr. West and Mr. Powers) and the FBI about smuggling
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`Case 3:23-cv-04597-EMC Document 112 Filed 10/01/24 Page 9 of 41
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`and violations of sanctions.
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`See 4AC ¶ 168.3
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`Apple now moves to dismiss in part the § 1102.5 claim.
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`a.
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`Beyond the Scope of Amendment
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`Apple argues first that part of the claim should be dismissed because Ms. Gjovik made an
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`amendment to the claim beyond the scope permitted by the Court. Specifically, in the 4AC, Ms.
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`Gjovik alleges that she was retaliated against because she made complaints to her supervisors and
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`the FBI about smuggling and sanctions violations. See 4AC ¶ 168. Apple asserts that this factual
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`predicate was never part of the § 1102.5 claim in the TAC and the Court never permitted Ms.
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`Gjovik to add new factual predicates to the § 1102.5 claim.
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`Apple’s argument has merit. To be clear, the prior TAC did mention smuggling and
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`sanctions violations. See, e.g., TAC ¶ 84 (alleging that, in September 2021, Ms. Gjovik “told the
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`FBI about Apple’s involvement in concealing possible sanctions violations and smuggling[;] in
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`the crime field, she wrote: ‘Possible violations of sanctions against Syria, possible cover-up of
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`that knowledge, retaliation for reporting concerns about said violation and coverup’”) (emphasis
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`in original). However, Ms. Gjovik’s allegations about smuggling and sanctions violations were
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`made in support of the SOX claim (which the Court ended up dismissing with prejudice), not in
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`support of the § 1102.5 claim. See TAC ¶¶ 167-68 (SOX claim).
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`Ms. Gjovik cannot avoid this problem simply because her § 1102.5 claim, as pled in the
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`TAC, contained the allegation that “Plaintiff re-alleges and incorporates by reference each and
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`every allegation set forth above, as though fully set forth in this Claim for Relief.” TAC ¶ 204 (§
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`1102.5 claim). She shall not be rewarded for this generic allegation, particularly in light of her
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`long and difficult-to-follow complaint. Furthermore, the § 1102.5 claim, as pled in the TAC,
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`clearly had a different focus. She asserted retaliation for three reasons only: “Reporting Unlawful
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`Labor/Employment Conduct,” “Reporting Environmental & Safety Violations,” and “Refusal to
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`Participate in Unlawful Conduct.” See TAC ¶¶ 208-12. She did not identify smuggling and
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`3 The list in ¶ 168 is longer; the above provides some examples only.
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`Case 3:23-cv-04597-EMC Document 112 Filed 10/01/24 Page 10 of 41
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`sanctions violations.
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`To the extent Ms. Gjovik suggests she should be now allowed to amend to include the
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`factual predicate, the Court does not agree. Ms. Gjovik has filed five pleadings at this point. The
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`Court shall not allow her to continue to modify her positions.
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`b.
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`Failure to Address Deficiencies Identified in Court Order
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`Apple argues next that more of the § 1102.5 claim should be dismissed because, when the
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`Court considers the amendment that it did permit to the claim, Ms. Gjovik failed to address – in
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`large part – the deficiencies identified by the Court in the TAC. According to Apple:
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`(1) Ms. Gjovik still fails to specify to whom she made complaints about the Gobbler
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`application; she mentions “Apple management” only.
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`(2) In multiple instances, Ms. Gjovik does not specify which statutes/regulations were
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`allegedly violated. While Ms. Gjovik does reference some specific
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`statutes/regulations in the 4AC, she also continues to cite to entire statutory
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`frameworks – e.g., for CERCLA, RCRA, and the Clean Air Act.
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`Apple’s arguments again have merit. As to (1), Ms. Gjovik contends that Apple is trying
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`to get her to “publicly name who at the company she raised the Gobbler issue to prior to taking it
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`public, despite having said it would fire anyone involved in making Gobbler public – thus
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`demanding Gjovik immediately snitch on her coworker, knowing Apple’s lawyers may then fire
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`that person.” Opp’n at 11. This argument does not make sense. In the 4AC, Ms. Gjovik asserts
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`that she complained to “Apple management,” not a coworker. In any event, regardless of the
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`status of the person to whom she complained, Ms. Gjovik does not have the right to unilaterally
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`decline to disclose the identity of the person. The issue here is one of fair notice to Apple so that
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`it can defend itself, and Ms. Gjovik did not even ask for any protective measures such as
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`disclosure to outside counsel only. Finally, it is notable that Ms. Gjovik did not raise any concern
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`about snitching in the prior 12(b)(6) round. Accordingly, the Court dismisses from the § 1102.5
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`claim the factual predicate that Ms. Gjovik was retaliated against because she made complaints
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`about privacy rights being violated as a result of the Gobbler application.
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`As for (2), Ms. Gjovik asserts that she has a valid claim so long as she reasonably believed,
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`at the time of her complaint, that there was a violation of the law; she did not have to know at the
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`time what laws exactly were being violated. See, e.g., Opp’n at 10 (arguing that a layperson
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`“probably will not know exactly what laws are being violated down to the statute”). The problem
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`for Ms. Gjovik is that Apple is not arguing such. Rather, Apple is making a different point: as a
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`matter of fair notice, Ms. Gjovik now, as part of litigation, has to identify specific
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`statutes/regulations so that Apple can properly defend itself. See Ling La v. San Mateo County
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`Transit Dist., No. 14-cv-01768-WHO, 2014 U.S. Dist. LEXIS 131316, at *18 (N.D. Cal. Sept. 16,
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`2014) (holding that “[plaintiff’s] allegation that she disclosed conduct in violation of the Davis-
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`Bacon Act, related federal statutes, and related regulations is . . . insufficient” because “[t]he point
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`of notice pleading is to ‘give the defendant fair notice of what the claim is and the grounds upon
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`which it rests,’” and plaintiff’s “citation to a whole statutory framework does not serve this
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`purpose, in particular where [plaintiff] does not use her opposition brief to clarify the specific
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`statutes and regulations that were violated”) (emphasis added).
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`Apple’s position has merit, at least to the extent that all that Ms. Gjovik does is cite an
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`entire statutory framework, without reference to any kind of benchmark (e.g., CERCLA, RCRA,
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`and the Clean Air Act). See 4AC ¶ 168. In her papers, Ms. Gjovik contends that, at least in some
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`instances, she cannot provide any more specific information on statutes or regulations because
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`CERCLA oversight is implemented through tailored settlements,
`contracts, and restrictive covenants – not regulations. Plaintiff
`challenged land use covenants, records of decision, and other
`contractual matters related to the CERLA site [and] Apple is aware
`of what those claims are from the emails Plaintiff sent them, the US
`EPA investigation into her claims and finding Apple at fault in [a]
`number of ways, including documented on formal reports.
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`Opp’n at 6. But assuming that is the benchmark, then it is not clear why Ms. Gjovik did not
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`identify that benchmark in the 4AC, and with some specificity (e.g., which tailored settlements,
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`contracts, and restrictive covenants). Again, the issue here is one of fair notice to Apple.
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`Furthermore, it is not sufficient for Ms. Gjovik to refer to documents outside the complaint for
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`additional details because those documents do not define the scope of the complaint.
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`To the extent Ms. Gjovik suggests that she was waiting for a report from the EPA to put in
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`more specifics, see Opp’n at 10 (asserting that she was “waiting to receive the results of the US
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`Case 3:23-cv-04597-EMC Document 112 Filed 10/01/24 Page 12 of 41
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`EPA Enforcement inspection report before making a conclusive statement”; adding that “[t]he
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`report was released last month and found “several . . . violations” of “statutes that provide both
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`civil and criminal enforcement”), that makes no sense. Ms. Gjovik should have been able to
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`provide more specifics regardless of what the EPA found. It is also notable that Ms. Gjovik did
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`not assert this excuse (i.e., that she had to wait for the EPA report) during the prior 12(b)(6)
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`hearing.
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`Accordingly, the Court dismisses any part of the § 1102.5 claim where all that Ms. Gjovik
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`does is cite wholesale to a statutory framework. That includes general reference to CERCLA,
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`RCRA, and the Clean Air Act without any degree of further specificity. Ms. Gjovik still has a §
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`1102.5 claim (albeit more limited) to the extent she does cite some statutes/regulations in her
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`pleading. See 4AC ¶ 168.
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`Because Ms. Gjovik has failed to cure deficiencies previously identified by the Court, the
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`Court’s dismissal here is with prejudice.
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`c.
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`Time Bar on Civil Penalties
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`Finally, Apple argues that, for the part of the § 1102.5 claim it does not challenge on the
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`grounds noted above, Ms. Gjovik still cannot seek any civil penalties as relief because they are
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`time barred.4 See 4AC, Prayer for Relief ¶ viii (asking for a civil penalty of $10,000 per employee
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`for each violation of California Labor Code § 98.6 and § 1102.5).5 In support of this position,
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`4 A contention that a claim is time barred is an affirmative defense, and ordinarily a plaintiff need
`not plead on the subject of an anticipated affirmative defense. But when an affirmative defense is
`apparent on the face of a complaint, a defendant may raise that defense in a motion to dismiss.
`See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013).
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`Two categories of remedies exist for violations of . . . § 1102.5. The
`first is a civil penalty. Id. § 1102.5(f) ("In addition to other
`penalties, an employer that is a corporation or limited liability
`company is liable for a civil penalty not exceeding ten thousand
`dollars ($10,000) for each violation of this section."). The second is
`a claim for damages. Id. § 1105 ("Nothing in this chapter shall
`prevent the injured employee from recovering damages from his
`employer for injury suffered through a violation of this chapter.");
`see also Gardenhire v. Hous. Auth., 85 Cal. App. 4th 236, 241
`(2000) (recognizing a right of action for damages for violations of §
`1102.5); Cal. Sen. Judiciary Comm., Analysis of S.B. 777 (Apr. 8,
`2003) (recognizing that § 1102.5 provides for recovery of
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`Case 3:23-cv-04597-EMC Document 112 Filed 10/01/24 Page 13 of 41
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`Apple cites California Code of Civil Procedure § 340(a). Section 340(a) provides for a one-year
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`limitations period for “[a]n action upon a statute for a penalty or forfeiture, if the action is given to
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`an individual, or to an individual and the state, except if the statute imposing it prescribes a
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`different limitation.” Cal. Code Civ. Proc. § 340(a). In the case at bar, the last act of retaliation
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`alleged by Ms. Gjovik was her termination. That occurred in September 2021. However, Ms.
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`Gjovik did not initiate this lawsuit until two years later, in September 2023.6
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`As a facial matter, Apple’s position ha