Case 3:23-cv-04597-EMC Document 90 Filed 08/05/24 Page 1 of 6
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`(Additional counsel on following page)
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`JESSICA R. PERRY (SBN 209321)
`jperry@orrick.com
`MELINDA S. RIECHERT (SBN 65504)
`mriechert@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, CA 94025-1015
`Telephone:
`+1 650 614 7400
`Facsimile:
`+1 650 614 7401
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`KATHRYN G. MANTOAN (SBN 239649)
`kmantoan@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`Telephone:
`+1 415 773 5700
`Facsimile:
`+1 415 773 5759
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`Attorneys for Defendant
`Apple Inc.
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`ASHLEY GJOVIK,
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`Case No. 23-cv-4597-EMC
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`v.
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`APPLE INC.,
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`Plaintiff,
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`Defendant.
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`4150-0479-5986
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`DEFENDANT APPLE INC.’S REPLY
`TO MOTION TO STRIKE PORTIONS
`OF PLAINTIFF’S FOURTH AMENDED
`COMPLAINT
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`Courtroom 5, 17th Floor
`Dept:
`Honorable Edward M. Chen
`Judge:
`Date: August 22, 2024
`Time: 1:30 p.m.
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`APPLE’S REPLY IN SUPPORT OF
`MOTION TO STRIKE 4AC
`CASE NO. 23-CV-4597-EMC
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`Case 3:23-cv-04597-EMC Document 90 Filed 08/05/24 Page 2 of 6
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`KATE E. JUVINALL (SBN 315659)
`kjuvinall@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`631 Wilshire Blvd., Suite 2-C
`Santa Monica, CA 90401
`Telephone:
`+1 310 633 2800
`Facsimile:
`+1 310 633 2849
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`RYAN D. BOOMS (SBN 329430)
`rbooms@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`2100 Pennsylvania Avenue NW
`Washington, D.C. 20037
`Telephone:
`+1 202 339 8400
`Facsimile:
`+1 202 339 8500
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`Attorneys for Defendant
`Apple Inc.
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`4150-0479-5986
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`APPLE’S REPLY IN SUPPORT OF
`MOTION TO STRIKE 4AC
`CASE NO. 23-CV-4597-EMC
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`Case 3:23-cv-04597-EMC Document 90 Filed 08/05/24 Page 3 of 6
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`Apple’s Motion to Strike (Dkt. 79; “Mot.”) seeks to truncate Plaintiff’s still sprawling
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`Fourth Amended Complaint (“4AC”) by excising allegations that relate only to those claims Apple
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`is moving to dismiss, to the extent the Court grants Apple’s concurrently filed Motion to Dismiss
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`(Dkt. 78). Apple’s goal is to settle the pleadings and have a clear complaint on file for the Court
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`and the parties, and to which future questions about relevance, scope, and discovery can be tethered.
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`Nothing in Plaintiff’s opposition precludes this practical solution to an otherwise unmanageable
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`complaint.1
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`First, Plaintiff’s argument that Apple filed the Motion in bad faith has no merit. She argues
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`that “Apple’s attempt to narrow the focus of the complaint by striking allegations” is an
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`“obstructive tactic designed to sidestep the complexities and breadth of the claims at hand.” Dkt.
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`85 (“Opp’n”) ¶12. To the contrary, Apple has addressed—not sidestepped—Plaintiff’s claims by
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`moving to dismiss the majority of them on Rule 12(b)(6) grounds and by moving to strike the
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`allegations that underpin only those claims (or portions of claims) that the Court dismisses. See
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`Mot. at 2. Contrary to Plaintiff’s arguments, Apple’s Motion to Strike thus serves to “streamline
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`the litigation process” (see Opp’n ¶21) by tailoring the remaining allegations to align with whatever
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`claims move forward.
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`Second, Plaintiff alleges that Apple cites no legal authority in support of its argument that
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`irrelevant and immaterial allegations and claims may be stricken. See Opp’n ¶20. That is clearly
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`not true, as Apple cites both statutory authority and case law in the Motion. See Mot. at 3-4. And
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`Plaintiff acknowledges that Rule 12(f) provides that “[t]he court may strike from a pleading an
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`insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Opp’n ¶10.
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`Third, Plaintiff fails to identify any specific allegation identified in the Motion to Strike that
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`relates to any specific claim Apple is not moving to dismiss. She therefore effectively concedes the
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`1 On July 31, 2024, Plaintiff filed a 96-page declaration in opposition to Apple’s pending Motion
`to Dismiss and Motion to Strike. See Dkt. 87. The Court should not consider this untimely, improper
`filing in connection with the present matters. See Phigenix, Inc. v. Genentech Inc., No. 15-CV-
`01238-BLF, 2019 WL 2579260, at *6 n. 5-6 (N.D. Cal. June 24, 2019) (declining to consider
`“additional, untimely declaration in opposition” filed by pro se party); Warrick v. Birdsell, 278
`B.R. 182, 187 (9th Cir. Bankr. 2002) (pro se litigant not excused from requirement to understand
`and follow bankruptcy court rules, particularly in light of fact that she held law degree and also ran
`paralegal firm).
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`4150-0479-5986
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`APPLE’S REPLY IN SUPPORT OF
`MOTION TO STRIKE 4AC
`CASE NO. 23-CV-4597-EMC
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`Case 3:23-cv-04597-EMC Document 90 Filed 08/05/24 Page 4 of 6
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`point that the allegations identified in the Motion to Strike relate only to those claims Apple is
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`moving to dismiss. See In re Ford Motor Co., 483 F. Supp. 3d 838, 846 (C.D. Cal. 2020) (where a
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`plaintiff “does not respond to [an] argument,” she “concedes the point”). To the extent the Court
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`grants Apple’s motion to dismiss, the allegations identified in the Motion are—as a result of
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`Plaintiff’s concession—entirely irrelevant and should be stricken.
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`Plaintiff vaguely and conclusorily alleges the “toxic tort” allegations regarding the Scott
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`building in general are “directly relevant” to her Tameny, Section 6310, and Section 98.6 claims.
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`Opp’n ¶25. But a review of the 4AC makes clear that those three claims are tethered to allegations
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`other than those Apple is moving to strike. See 4AC ¶¶154-65 (Tameny claim premised on alleged
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`[1] retaliation for purportedly complaining about Apple’s supposed “surveillance of employees,”
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`[2] sex, gender, and disability discrimination, [3] crime victim discrimination, and [4] legislative
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`committee witness discrimination), ¶¶170-74 (Section 6310 claim premised on alleged
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`discrimination for complaining about work conditions at 825 Stewart, Plaintiff’s work building),
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`¶¶177-80 (Section 98.6 claim premised on Plaintiff’s alleged August 29, 2021 complaint to the
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`California Labor Commissioner, which was based on activity at her office building 825 Stewart,
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`not the Scott building (see ¶109)).
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`Plaintiff also appears to suggest that her UCL claim pertaining to the Gobbler application
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`should survive Apple’s Motion to Dismiss, and in turn, its Motion to Strike, because she speculates
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`that Apple intends to raise a defense pertaining to the Gobbler application. See Opp’n ¶25. But
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`whatever defenses Apple might raise when it answers to claims that will move forward has no
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`bearing on whether Plaintiff adequately stated a UCL claim and whether the UCL-specific
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`allegations should be stricken.
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`Finally, Plaintiff appears to contend that the allegations underpinning her IIED claims
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`should withstand Apple’s Motion to Strike because of a declaration she filed in support of her
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`Opposition to the Motion to Dismiss and Motion to Strike; however, this declaration should not be
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`considered, just as the Court declined to consider Plaintiff’s Declaration in Support of her
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`Opposition to Apple’s Motion to Dismiss her Third Amended Complaint. See Dkt. 73 at 10 n.10
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`APPLE’S REPLY IN SUPPORT OF
`MOTION TO STRIKE 4AC
`CASE NO. 23-CV-4597-EMC
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`Case 3:23-cv-04597-EMC Document 90 Filed 08/05/24 Page 5 of 6
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`(“On a motion to dismiss, a court generally limits its review to the four corners of the complaint.”);
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`accord footnote 1, supra.
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`Fourth, Plaintiff argues that Apple’s Motion to Strike improperly seeks to dismiss claims,
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`and thus is actually a Rule 12(b)(6) motion, not a Rule 12(f) motion. Opp’n ¶¶18-19. That is not
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`accurate. Apple is not arguing in its Motion to Strike that, for example, Plaintiff fails to state a
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`claim for IIED and thus the Court should strike all allegations material to that claim. Rather, the
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`relevant part of Apple’s Motion requests that “[t]he Court should strike all allegations that clearly
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`relate only to the dismissed claims, to the extent the Court grants Apple’s motion to dismiss.” Mot.
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`at 4. As mentioned above, Apple does this for the practical purpose of cleaning up an otherwise
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`unwieldly 4AC and streamlining the litigation moving forward.
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`Fifth, Plaintiff appears to argue that Apple has improperly requested that the Court construe
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`its Motion to Dismiss portions of the Second, Fifth, and Sixth claims as a motion to strike in the
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`alternative. See Opp’n ¶18. However, courts differ as to the appropriate vehicle to excise part of a
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`claim at the pleadings stage. Some view a Rule 12(b)(6) motion as appropriate, while others view
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`a Rule 12(f) motion as appropriate—but all generally accept that one or both vehicles is available
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`to excise portions of claims that fail as a matter of law at the pleading stage. Compare, e.g., Lopez
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`v. Wachovia Mortg., No. 209-CV-01510-JAM-DAD, 2009 WL 4505919, at *3-4 (E.D. Cal. Nov.
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`20, 2009) (court can dismiss only a portion of, or one of several theories alleged in, a single claim
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`on a motion to dismiss under Rule 12(b)(6)) with Bruton v. Gerber Prod. Co., No. 12-CV-02412-
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`LHK, 2018 WL 4181903, at *6 (N.D. Cal. Aug. 31, 2018) (striking part of claim on motion to strike
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`under Rule 12(f)). In an abundance of caution, Apple made arguments regarding the legal
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`insufficiency of portions of the Second, Fifth, and Sixth Claims in both its Motion to Dismiss (see
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`Dkt. 78 at 19-21, 21-22, and 22-23, respectively) and its Motion to Strike (see Dkt. 79 at 2 n.1).
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`Sixth, Plaintiff’s request for further leave to amend the complaint to resuscitate the
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`allegations that Apple moves to strike (see Opp’n ¶27) should not be permitted. Plaintiff has already
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`been afforded four opportunities to amend her complaint and the Court has provided specific
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`guidance on what she needs to allege to state claims against Apple (if she can do so in good faith
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`consistent with Rule 11). See, e.g., Dkt. 73, passim. Plaintiff’s failure to adequately plead
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`APPLE’S REPLY IN SUPPORT OF
`MOTION TO STRIKE 4AC
`CASE NO. 23-CV-4597-EMC
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`Case 3:23-cv-04597-EMC Document 90 Filed 08/05/24 Page 6 of 6
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`cognizable claims to date shows any further leave to amend as to those claims would be futile. See
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`Sepehry-Fard v. Dep’t Stores Nat’l Bank, 15 F. Supp. 3d 984, 989 (N.D. Cal. 2014) (dismissing
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`complaint with prejudice when pro se litigant had “multiple opportunities” to amend his pleading
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`and was given “very specific instructions [by the court] on what was missing from his claims and
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`what he needed to allege in order to state claims”); Nicks v. Cent. Contra Costa Transit Auth., No.
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`C 07-04146 CRB, 2008 WL 506144, at *1 (N.D. Cal. Feb. 22, 2008) (dismissing pro se plaintiff
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`complaint when “second amended complaint fail[ed] to adequately put forth allegations informing
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`the defendant of what it has done wrong”).
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`For the foregoing reasons and the reasons set forth in Apple’s Motion to Strike, Apple
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`respectfully requests that the Court grant the motion in full.
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`Dated: August 5, 2024
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`ORRICK, HERRINGTON & SUTCLIFFE LLP
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`By: /s/ Jessica R. Perry
`JESSICA R. PERRY
`Attorneys for Defendant Apple Inc.
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`APPLE’S REPLY IN SUPPORT OF
`MOTION TO STRIKE 4AC
`CASE NO. 23-CV-4597-EMC
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