Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 1 of 16
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`Ashley M. Gjovik, JD
`Pro Se Plaintiff
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`2108 N St. Ste. 4553
`Sacramento, CA, 95816
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`(408) 883-4428
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`legal@ashleygjovik.com
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ASHLEY GJOVIK, an individual,
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`Plaintiff,
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`v.
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`APPLE INC, a corporation,
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`Defendant.
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`Case No. 3:23-CV-04597-EMC
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`PLAINTIFF’S MEMORANDUM OF
`POINTS & AUTHORITIES
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`IN OPPOSITION TO DEFENDANT’S
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`REQUEST FOR JUDICIAL NOTICE
`Fed. R. Evid. 201.
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`HEARING:
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`Dept: Courtroom 5, 17th Floor (Virtual)
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`Date: May 16, 2024
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`Time: 1:30 p.m.
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`OPP’N TO REQ. FOR JUDICIAL NOTICE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 2 of 16
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`TABLE OF CONTENTS
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`I.
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`PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S REQUEST FOR JUDICIAL
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`NOTICE ........................................................................................................................................................................ 1
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`II.
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`ISSUES TO BE DECIDED ................................................................................................................................ 1
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`III. STATEMENTS OF FACTS .............................................................................................................................. 2
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`IV. THE MOTION SHOULD BE DENIED AS THE TAC DOES NOT RELY ON EITHER DOCUMENT 2
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`V. THE MOTION SHOULD BE DENIED BECAUSE NEITHER DOCUMENT CAN BE
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`AUTHENTICATED .................................................................................................................................................... 5
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`VI. THE MOTION SHOULD BE DENIED BECAUSE THERE’S NO LEGAL BASIS .................................. 6
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`VII. THE REQUEST TO GIVE NOTICE TO THE CONTENTS OF THE DOCUMENT IS IMPROPER ... 8
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`VIII. JUDICIAL NOTICE SHOULD NOT BE GRANTED TO DEFENDANT’S VERSION OF THESE
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`DOCUMENTS AS “THE TRUTH” OR THEIR DEFENSE. ................................................................................ 10
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`IX. CONCLUSION ................................................................................................................................................. 12
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`OPP’N TO REQ. FOR JUDICIAL NOTICE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 3 of 16
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`CASES
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`Adetuyi v. City & Cnty. of San Francisco, 63 F. Supp. 3d 1073, 1080–81 (N.D. Cal. 2014); ----------------------------- 5
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`Ansell v. Laikin, 2011 WL 3274019, at *3 (C.D. Cal. Aug. 1, 2011) ---------------------------------------------------------- 7
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)) ----------12
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`Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). ----------------------------------------------- 6
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`Canada v. Blain's Helicopters, Inc.,831 F.2d 920, 925 (9th Cir. 1987). ------------------------------------------------------ 6
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`Clarke v. Pub. Emps. Union Local 1, Case No.16-cv-04954-JSC, 5-6 (N.D. Cal. Jun. 14, 2017) ------------------------ 3
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`Donovan v. Woodbridge Maint. Ass'n, No. 2:14-cv-00995 JAM-EFB, 5 (E.D. Cal. Mar. 16, 2015) --------------------10
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`FindWhat Investor Group v. FindWhat.com, 658 F.3d 1282, 1297 n5 (11th Cir. 2011) ----------------------------------- 7
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`Foley v. Interactive Data Corp., 47 Cal.3d 654, 681-82 (Cal. 1988). --------------------------------------------------------- 4
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`Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 156–57 (2d Cir. 2006) ------------------------------- 8
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`Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145-1146 [37 Cal.Rptr.2d 718]. -----------10
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`Hussein v. University Community College Syst. Of Nev, 3:05-CV-0076 JCM (RAM), 2-3 (D. Nev. Dec. 28, 2007) - 5
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`In re Immune Response Sec. Litig., 375 F. Supp. 2d 983, 995–96 (S.D. Cal. 2005) ---------------------------------------- 8
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`In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999). --------------------------------------------------- 3
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`Juster v. Workday, Inc, 617 F. Supp. 3d 1128, 1131-1132 (N.D. Cal. 2022). ------------------------------------------------ 8
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`Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1003 (9th Cir. 2018). ------------------------------------------------- 9
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`Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). --------------------------------------------- 11, 12
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`Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001) ----------------------------------------------------------------------11
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`Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). ---------------------------------------------------------------------------- 3
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`McKay v. Sazerac Co., 23-cv-00522-EMC, 4 (N.D. Cal. May. 17, 2023). --------------------------------------------------- 5
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`Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 216 (4th Cir. 2009)----------------------------------------10
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`Orr v. Bank of America, NT & SA, 285 F.3d 764, 776-77 (9th Cir. 2002). --------------------------------------------------- 5
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`Orr v. Bank of America, NT & SA, 285 F.3d 764, 778-79 (9th Cir. 2002). -------------------------------------------------11
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`Orr v. Bank of America, NT & SA, 285 F.3d 764, 779 n.26 (9th Cir. 2002). -----------------------------------------------11
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`Pavone v. Citicorp Credit Services, Inc., 60 F. Supp. 2d 1040, 1045 (S.D. Cal. 1997). ------------------------------------ 6
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`People v. Overstreet (1986) 42 C3d 891, 900, 231 CR 213, 217-218. -------------------------------------------------------10
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`Pugh v. See's Candies, Inc., 116 Cal.App.3d 311 (Cal. Ct. App. 1981) ------------------------------------------------------- 4
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`Ritchie Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). ------------------------------------------------- 3
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`OPP’N TO REQ. FOR JUDICIAL NOTICE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 4 of 16
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`Rosenberg-Wohl v. State Farm Fire & Cas. Co., 20-cv-09316-DMR, 6 (N.D. Cal. Mar. 28, 2022). -------------------- 2
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`U.S. v. Ritchie, 342 F.3d 903 (9th Cir. 2003). ------------------------------------------------------------------------------------10
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`United States v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011). ------------------------------------------------------- 2
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`RULES
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`Fed. R. Civ. P. 12(f) --------------------------------------------------------------------------------------------------------------------- i
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`Fed. R.Evid. 201(b) -------------------------------------------------------------------------------------------------------------------- 5
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`Fed.R.Evid. 801(c). -------------------------------------------------------------------------------------------------------------------11
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`Fed.R.Evid. 901(a). -------------------------------------------------------------------------------------------------------------------- 6
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`OPP’N TO REQ. FOR JUDICIAL NOTICE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 5 of 16
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`I.
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`PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
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`REQUEST FOR JUDICIAL NOTICE
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`1.
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`Plaintiff, Ashley Gjovik, respectfully submits the following Memorandum of
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`Points and Authorities in Opposition to Defendant’s Motion to Judicial Notice, Docket No. 48.
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`Defendant’s Motion to Strike should be denied for a variety of reasons including due to
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`Defendant’s attempt to use a Motion to Strike as if it were a motion to dismiss, failure to provide
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`justifications for its requests to strike, failure to plead prejudice, Defendant’s attempt to “strike”
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`and remove facts integral to this matter, and Defendant’s repeated substantive references and
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`quotes to prior mooted pleadings in violation of Local Rule 10-1 and this Court’s Jan. 30, 2024
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`Order. [Order at Docket No. 46].
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`II.
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`ISSUES TO BE DECIDED
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`2.
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`On March 26 2024, Defendant filed a motion requesting judicial notice of two
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`documents, Def.’s Mot. for Judicial Notice at Docket No. 50. The first document is listed by
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`Defendant as “Exhibit A: Plaintiff’s SEC Submission No. 16304-612-987-465 (SEC
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`Submission),” Id. Ex. A. The second document is listed by Defendant as, “Exhibit B: Plaintiff’s
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`offer of employment from Apple (the “Offer Letter),” Id. Ex. B. Defendant argues that judicial
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`notice is proper for both documents supposedly because:
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`a. “the complaint refers to the document,” and “Plaintiff directly and indirectly references or
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`the contents thereof,” Id.
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`b. “the document is central to the plaintiff’s claim,” and “Plaintiff’s TAC necessarily relies
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`on them (by virtue of basing certain allegations on them),” Id.
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`c. “no party questions the authenticity of the [document]” and “authenticity is not disputed,”
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`Id.
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 6 of 16
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`Plaintiff disputes all three points. Further, Defendant specifically requests judicial notice that the
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`court may “assume that its contents are true for purposes of a motion to dismiss under Rule
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`12(b)(6),” Def.’s Mot. to for Judicial Notice at 1. Plaintiff also disagrees with this request as well.
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`III.
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`STATEMENTS OF FACTS
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`3.
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`Defendant filed a request for judicial notice of the U.S SEC TCR (“Tips,
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`Complaints, and Referrals” system) whistleblower “Submission” that Plaintiff filed to the US SEC
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`on August 31 2021 about Apple and several other related parties. Id. Defendant attached a copy
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`of the “Submission" to their Motion as “Exhibit A,” Def.’s Mot. to Dismiss Ex. A.
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`4.
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`Defendant filed a request for judicial notice of an “Offer Letter” drafted by “Apple
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`Inc” and signed by “Ashley Henderson.” Defendant attached a copy of the “Offer Letter” as
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`“Exhibit B,” Def.’s Mot. to for Judicial Notice Ex. B.
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`5.
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`Defendant never contacted Plaintiff to meet/confer, or even mention, these
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`documents, and Defendant’s plans to request judicial notice. Defendant also did not attempt to
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`confirm authenticity or accuracy with Plaintiff prior to, or after, introducing their motion.
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`IV. THE MOTION SHOULD BE DENIED AS THE TAC DOES NOT RELY ON
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`EITHER DOCUMENT
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`6.
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`It is usually not appropriate for a court to grant judicial notice to a defendant for
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`evidence to support a 12(b)(6) motion, unless the complaint relies on the document, the document
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`is central to a party’s claims, and no party questions the authenticity of the document. United
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`States v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011). At this phase of the lawsuit, judicial
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`notice to support a motion to dismiss may only be appropriate “if the court is to rely on the
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`document in determining whether to dismiss the complaint.” Rosenberg-Wohl v. State Farm Fire
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`& Cas. Co., 20-cv-09316-DMR, 6 (N.D. Cal. Mar. 28, 2022).
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 7 of 16
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`7.
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`Plaintiff’s Third Amended Complaint (“TAC”) (Docket No. 47) does not rely on
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`either Defendant’s Ex. A or Ex. B. Defendant’s motion argues that the TAC relies on the “Offer
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`Letter,” and the “Offer Letter” is central to Plaintiff’s claims – while citing sections of the TAC
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`which discuss Plaintiff’s Breach of Implied Contract and Implied Covenant claims (TAC ¶ 234-
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`237). Plaintiff mentions she has a written employment contract but then also discussed her good-
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`cause employment based on documents such as performance reviews, employment policies,
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`compensation increases, (TAC ¶ 234). Plaintiff quotes her 2017 performance review, (TAC ¶ 235),
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`as a record of her good-cause employment. Plaintiff does not cite, quote, or mention the “Offer
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`Letter.” Defendant also argues that Plaintiff directly, or indirectly, mentions the “Offer Letter” in
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`her TAC ¶ 236-237, however those paragraphs discuss her CERLCA and OSH Act retaliation
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`claims against Apple – which is not even an “indirect” reference. In re Silicon Graphics Inc. Sec.
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`Litig., 183 F.3d 970, 986 (9th Cir. 1999).
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`8.
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`The mere mention of a document in a complaint is insufficient to incorporate by
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`reference. Ritchie Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). The “Offer
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`Letter” is not properly subject to judicial notice in support of Defendant’s motion to dismiss
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`because Plaintiff’s claims of Breach of Implied Contract and Breach of the Implied Covenant of
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`Good Faith and Fair Dealing do not "necessarily rely" on a written employment contract. Clarke
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`v. Pub. Emps. Union Local 1, Case No.16-cv-04954-JSC, 5-6 (N.D. Cal. Jun. 14, 2017) –
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`(employment contract irrelevant and not appropriate for judicial notice with notice requested
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`related to a breach of fiduciary duty claim based on discretionary conduct).
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`9.
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`The employment contract itself not “central to” any of Plaintiff’s claims. Marder
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`v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). May v. Semblant, Inc., Case No.: 5:13-CV-01576-
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`EJD, 4 (N.D. Cal. Sep. 27, 2013). The legal test to determine an implied “good cause” employment
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 8 of 16
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`contract is reviewing the Foley factors and none of the factors include a written employment
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`contract. Foley v. Interactive Data Corp., 47 Cal.3d 654, 681-82 (Cal. 1988).
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`10.
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`For example, an allegation of breach of written "Termination Guidelines" implies
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`self-imposed limitations on the employer's power to discharge at will and may be sufficient to
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`state a cause of action for breach of an implied employment contract. Pugh v. See's Candies, Inc.,
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`116 Cal.App.3d 311 (Cal. Ct. App. 1981) – (the trier of fact can infer an agreement to limit the
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`grounds for termination based on the employee's reasonable reliance on the company's personnel
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`manual or policies).1
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`11.
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`The TAC also does not rely on the content of Plaintiff’s US SEC whistleblower
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`filing at this phase. Defendant cites TAC ¶ 85, 86, 169, 172 – where Plaintiff filed her US SEC
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`complaint, told people at Apple about it, and spoke publicly about it prior to her termination.
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`Plaintiff’s Dodd-Frank claim requires that she filed the US SEC complaint, and she did, but a
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`12(b)(6) motion against a Dodd-Frank whistleblower retaliation claim does not require “proof” of
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`the claim being filed – especially in a case that had a SOX whistleblower claim docketed with US
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`Department of Labor for multiple years, (TAC ¶ 91, 169).
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`1 See, e.g., Robinson v. Hewlett-Packard Corp., 183 Cal. App. 3d 1109, 1123 (1986) [promise
`not to terminate without good cause demonstrated by personnel guidelines and individual
`performance warnings, evaluations and instructions]; Rulon-Miller v. InternationalBusiness
`Machines Corp. (1984) 162 Cal.App.3d 241, 251 [ 208 Cal.Rptr. 524] [factual issue whether
`termination was for reasons in stated employer policies]; Walker v. Northern SanDiego County
`Hospital Dist., ,135 Cal.App.3d 897, 904-905 (1982) [handbook creating right to discharge only
`for cause and to pretermination hearing]; Toussaint v. Blue Cross, 408 Mich. 579, 292 N.W.2d
`880, 892 (Mich. 1980)[personnel manual provisions can give rise to contractual rights without
`showing of express mutual agreement]; Morris v. Lutheran Medical Center (1983) 215 Neb. 677
`[ 340 N.W.2d 388, 390-391] [employer bound by published "Policy and Procedures"]; cf. Hepp
`v. Lockheed-CaliforniaCo. (1978) 86 Cal.App.3d 714, 719 [ 150 Cal.Rptr. 408] [unwritten but
`"well established" policy regulating rehiring of employees laid off for lack of work is
`enforceable].
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 9 of 16
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`V.
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`THE MOTION SHOULD BE DENIED BECAUSE NEITHER DOCUMENT
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`CAN BE AUTHENTICATED
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`12. When requesting judicial notice of evidence, that evidence must not be subject to
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`dispute, and must be either “generally known within the trial court's territorial jurisdiction” and/or
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`“can be accurately and readily determined from sources whose accuracy cannot reasonably be
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`questioned.” Fed. R.Evid. 201(b) (addressing adjudicative facts); Adetuyi v. City & Cnty. of San
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`Francisco, 63 F. Supp. 3d 1073, 1080–81 (N.D. Cal. 2014); McKay v. Sazerac Co., 23-cv-00522-
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`EMC, 4 (N.D. Cal. May. 17, 2023).
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`13.
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`Defendant simply claims “Because Exhibits A and B are referred to in the TAC,
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`their authenticity is not disputed,” Def.’s Mot. For Judicial Notice at 1. That is not the test to
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`determine authenticity. Defendant also fails to file declarations or affidavits in support of the
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`exhibits. Hussein v. University Community College Syst. Of Nev, 3:05-CV-0076 JCM (RAM), 2-
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`3 (D. Nev. Dec. 28, 2007) – (“ the documents defendants claim were authenticated by
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`production during discovery, and which plaintiff neither admits production nor authenticity, are
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`inadmissible.) Defendant also did not obtain a declaration from Plaintiff to authenticate the
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`documents. Pavone v. Citicorp Credit Services, Inc., 60 F. Supp. 2d 1040, 1045 (S.D. Cal.
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`1997). For the “SEC Submission,” Defendant was not even party to it, with Plaintiff filing the
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`complaint to the US SEC and saving a copy of her complaint digitally.
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`14.
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`A defendant in this situation cannot authenticate exhibits by stating in his affidavit
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`that they are "true and correct copies," as the statement lacks foundation when he was not even
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`present and was not involved in the communication. Orr v. Bank of America, NT & SA, 285 F.3d
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`764, 776-77 (9th Cir. 2002). Instead, Defendant has unilaterally extracted the “SEC Submission”
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`from a mooted 120-page exhibit filed by a different party (Plaintiff) in 2023, and then Defendant
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 10 of 16
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`quietly attempted to resubmit the document without consent, or any legal or factual basis.2 Pavone
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`v. Citicorp Credit Services, Inc., 60 F. Supp. 2d 1040, 1045 (S.D. Cal. 1997).
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`15.
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`Federal Rule of Evidence 901(a) requires "authentication or identification as a
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`condition precedent to admissibility." Thus, before evidence may be admitted, a foundation must
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`be laid "by evidence sufficient to support a finding that the matter in question is what its proponent
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`claims." Fed.R.Evid. 901(a). "Documents which have not had a proper foundation laid to
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`authenticate them cannot support a motion for summary judgment." Canada v. Blain's
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`Helicopters, Inc.,831 F.2d 920, 925 (9th Cir. 1987). Beyene v. Coleman Sec. Services, Inc., 854
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`F.2d 1179, 1182 (9th Cir. 1988).
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`16.
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`Further, there are also Best Evidence Rule issues with both documents. Plaintiff is
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`unable to confirm the authenticity of Exhibit A due to Defendant’s multiple unnecessary
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`redactions on the document which obfuscate and conceal key terms. The document is also not
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`signed with Plaintiff’s current surname, and there is no name change documentation provided.
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`Who is Ashley Henderson? Defendant has presented both of these documents in such a way that
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`authenticity cannot be confirmed, or is otherwise in question, and there is no reason the originals
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`could not be produced during normal discovery processes and timelines instead.
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`VI. THE MOTION SHOULD BE DENIED BECAUSE THERE’S NO LEGAL
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`BASIS
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`17.
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`There does not appear to be legal or factual precedent for an employer attempting
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`to request judicial notice of their employee’s whistleblower tip to a federal agency, about the
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`employer, in a retaliation lawsuit over that charge, despite the employer not being party to or
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`2 Civil L.R. 7-2 (d) Affidavits or Declarations. Each motion must be accompanied by affidavits
`or declarations pursuant to Civil L.R. 7-5; 7-5 (a) Affidavit or Declaration Required. Factual
`contentions made in support of or in opposition to any motion must be supported by an affidavit
`or declaration and by appropriate references to the record.
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 11 of 16
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`directly notified about the complaint, and instead the employer essentially found it on the internet.
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`Defendant cited one case as a legal authority for their request for judicial notice of the “SEC
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`Submission,” Def’s Mot. for Judicial Notice Ex. A.
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`18.
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` Defendant selected a single unpublished decision from 2011 as its only legal
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`authority for its odd request, and the decision is simply “Civil Minutes” for an “In Chambers
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`Order.” Defendant’s Motion for Judicial Notice cites and ‘summarizes’ it as: “Ansell v. Laikin,
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`2011 WL 3274019, at *3 (C.D. Cal. Aug. 1, 2011) (on motion to dismiss, taking judicial notice of
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`SEC complaint that was incorporated by reference),” at pages 1-2.
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`19.
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` The case was very difficult to find and required pulling it directly from PACER.
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`The case has nothing to do with US SEC whistleblower TCRs. In the unpublished / unreported
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`decision, the “SEC complaint” that the Defendant referred to in their motion is defined in the
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`decision as “On December 15, 2008 the indictment and information were unsealed, and the SEC
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`commenced enforcement proceedings against Defendant and others (the “SEC Complaint”).” Id
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`at 2. It’s not a protected whistleblower tip – it’s an enforcement complaint. The case goes on:
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`“The Complaint also attaches and incorporates by reference a copy of the SEC
`Complaint, which sets forth further detailed allegations about Defendant’s
`material omission. Defendant urges the Court to ignore the SEC Complaint
`since Plaintiff did not request that the Court take judicial notice of it. However,
`since the SEC Complaint is both attached to and incorporated by reference into
`Plaintiff’s Complaint it may properly be considered on a Rule 12(b)(6) motion.”
`Id at 4.
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`Everything about Defendant’s request is disquieting.
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`20.
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`Courts often take judicial notice of a Company’s filings to the US Securities and
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`Exchange Commission (SEC) but that’s quite different then a confidential US SEC TCR
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`whistleblower complaint. See, e.g., FindWhat Investor Group v. FindWhat.com, 658 F.3d 1282,
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`1297 n5 (11th Cir. 2011) (noticing contents of documents filed with SEC); Oran v. Stafford, 226
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 12 of 16
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`F.3d 275, 289 (3d Cir. 2000) (taking judicial notice of properly-authenticated public disclosure
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`documents filed with SEC).
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`21.
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`Next, Defendant’s legal authority for its request for judicial notice of the “Offer
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`Letter” is also just a single case. In Juster v. Workday, Inc, the court granted judicial notice of an
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`offer letter when the employee claimed the employer “improperly terminat[ed] him based on his
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`conviction history,” but the offer letter stated “[t]he offer of employment set forth in this Letter is
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`contingent upon ... (ii) your consent to, successful completion of, and passing of all applicable
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`background checks.” Juster v. Workday, Inc, 617 F. Supp. 3d 1128, 1131-1132 (N.D. Cal. 2022).
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`The case is not comparable to the facts and allegations in this matter.
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`VII. THE REQUEST TO GIVE NOTICE TO THE CONTENTS OF THE
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`DOCUMENT IS IMPROPER
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`22.
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`“If the document merely creates a defense to the well-pled allegations in the
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`complaint, then that document did not necessarily form the basis of the complaint. Otherwise,
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`defendants could use the doctrine to insert their own version of events into the complaint to defeat
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`otherwise cognizable claims.” See In re Immune Response Sec. Litig., 375 F. Supp. 2d 983, 995–
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`96 (S.D. Cal. 2005) (declining to incorporate numerous exhibits in SEC action where the
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`complaint did not mention relying on them, but the defendants instead “offer[ed] the documents
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`as evidence that Defendants did not commit a securities violation”); Glob. Network Commc’ns,
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`Inc. v. City of New York, 458 F.3d 150, 156–57 (2d Cir. 2006) (finding error where the court relied
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`on documents the complaint did not mention, to resolve an issue in defendant’s favor, even though
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`the complaint had not raised the issue).
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`23.
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`Upon reviewing Defendant’s Motion to Dismiss for references to this pending
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`Motion for Judicial Notice, it appears Defendant is attempting to do just what is noted in the
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`paragraph above. (Def’s Mot. To Dismiss at Docket No. 48.) Defendant repeatedly cites this
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 13 of 16
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`pending motion as substantive evidence on the merits of at least two claims, SOX and Dodd-Frank
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`whistleblower retaliation, see Def’s MTD at 10, 11, 13, and 23 (quoted in bullets below):
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`“Plaintiff further alleges that she complained to various government agencies, including
`the SEC. Id. ¶169. In her SEC “tip,” she complained about an alleged “conflict of interest”
`involving Ronald Sugar. RJN, Ex. A at 3-4.” Def’s MTD at 10.
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`“Plaintiff’s complaints about Mr. Sugar reveal she was concerned about workplace safety
`issues, not fraud against shareholders. See SAC ¶808 (complaint to Apple about Mr. Sugar
`an “due diligence programs for offices on chemical clean-up sites”); RJN, Ex. A at 7
`(complaint to SEC about Mr. Sugar and “the clean-up of the toxic chemicals under the
`building”). Where, as here a SOX claim rests on a complaint rooted in workplace safety
`rather than securities concerns, it should be dismissed. See Magnuson v. Exelon Corp., 658
`F. Supp. 3d 652, 661-62 (C.D. Ill. 2023).” Def’s MTD d at 11.
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`“As discussed above, Plaintiff’s “tip” to the SEC complaining of a purported “conflict of
`interest” involving Mr. Sugar does not constitute protected activity under SOX. TAC ¶169;
`RJN, Ex. A at 3-4. Consequently, Plaintiff cannot rely on that complaint to claim Dodd-
`Frank protection.” Def’s MTD d at 13.
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`“Plaintiff’s offer letter states that her employment with Apple was at will, and that Apple
`could terminate her employment “at any time and for any or no reason.” RJN, Ex. B. No
`provisions support Plaintiff’s contrary allegations that Apple promised to retain her.” Def’s
`MTD d at 23..
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`This is not what judicial notice is for.
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`24.
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`“Submitting documents not mentioned in the complaint to create a defense is
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`nothing more than another way of disputing the factual allegations in the complaint, but with a
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`motion for summary judgment, the plaintiff receives no opportunity to respond to the defendant’s
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`new version of the facts.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1003 (9th Cir.
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`2018). “Without that opportunity to respond, the defendant’s newly-expanded version of the
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`complaint – accepted as true at the pleading stage – can easily topple otherwise cognizable
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`claims.” Id. “Although the incorporation-by-reference doctrine is designed to prevent artful
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`pleading by plaintiffs, the doctrine is not a tool for defendants to short-circuit the resolution of a
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`well-pleaded claim.” Id.
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 14 of 16
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`25.
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`A request for judicial notice may also be denied where the court finds the matter
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`disputable and/or irrelevant. See People v. Overstreet (1986) 42 C3d 891, 900, 231 CR 213, 217-
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`218. “It’s well established that judicial notice is not appropriate with the parties clearly and
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`reasonably disagree about the meaning to be ascribed to the document. Ohio Valley Envtl. Coal.
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`v. Aracoma Coal Co., 556 F.3d 177, 216 (4th Cir. 2009) (declining to judicially notice decision
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`documents relating to mining discharge permits because the parties "clearly and reasonably
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`disagree about the meaning to be ascribed" to them).
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`26.
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`Evidence is also not to be subject to judicial notice if it contains conclusions of law,
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`unreasonable inferences, and/or unwarranted deductions of fact. Donovan v. Woodbridge Maint.
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`Ass'n, No. 2:14-cv-00995 JAM-EFB, 5 (E.D. Cal. Mar. 16, 2015). Defendant asks for judicial
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`notice of the content of the documents, stating: “The court is permitted to treat such documents as
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`‘part of the complaint, and thus may assume that its contents are true for purposes of a motion to
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`dismiss under Rule(b)(6),” Def’s Mot. for Judicial Notice at 1. Further, Defendant attempts to
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`introduce the “Offer Letter” but not any of the other documents mentioned in the TAC.
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`Defendant’s motion purports that notice of this contract is proof of some legal conclusion. A court
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`cannot take judicial notice of the interpretation of and enforceability of a written contract for the
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`purposes of ruling on a Motion to Dismiss when the Plaintiff’s claims dispute the enforceability
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`of that very contract. Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145-
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`1146 [37 Cal.Rptr.2d 718].
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`VIII. JUDICIAL NOTICE SHOULD NOT BE GRANTED TO DEFENDANT’S
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`VERSION OF THESE DOCUMENTS AS “THE TRUTH” OR THEIR DEFENSE.
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`27.
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`Defendant cited U.S. v. Ritchie as a legal authority for their claim this court may
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`assume the “contents” of Plaintiff’s Offer Letter and SEC Whistleblower TCR are “true for
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`purposes of a motion to dismiss.” U.S. v. Ritchie, 342 F.3d 903 (9th Cir. 2003). (Def’s Mot. for
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`OPPOSITION TO MOTION TO STRIKE | 3:23-CV-04597-EMC
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`APRIL 9 2024
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`Case 3:23-cv-04597-EMC Document 52 Filed 04/09/24 Page 15 of 16
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`Judicial Notice at 1.) However, U.S. v. Ritchie is a criminal DEA case where the court denied the
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`request for judicial notice of exhibits (attached to an opposition brief), because none of the
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`documents formed the basis of the complaint, and the other party did not “refer extensively” to
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`any of them. Id. at 908. “Thus, it would have been improper for the court to consider the
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`declaration and exhibits … without converting the motion to dismiss into a motion for summary
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`judgment.” Id. at 909.
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`28.
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`“Just because the document itself is s