Case 3:23-cv-04597-EMC Document 93 Filed 08/18/24 Page 1 of 77
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`Ashley M. Gjovik, JD
`In Propria Persona
`2108 N St. Ste. 4553
`Sacramento, CA, 95816
`(408) 883-4428
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`legal@ashleygjovik.com
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`United States District Court
`Northern District of California
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` Case No. 3:23-CV-04597-EMC
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`Plaintiff’s Omnibus
`Motion for Leave to file
`Sur-reply and Objections;
`Sur-reply and Objections.
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`
`
`
`
`In Opposition to Defendant’s
`Fourth Fed . R. Civ. P. § 12(b)(6)
`Motion to Dismiss, Third § 12( f )
`Motion to Strike, and Replies.
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`Motion Hearing & Case
`Management Conference:
`Dept: Courtroom 5 (Zoom)
`Judge Edward M. Chen
`Date: August 28, 2024
`Time: 9:30 AM PT
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`Ashley M. Gjovik, an individual,
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`Plaintiff,
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` vs.
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`Apple Inc., a corporation,
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`Defendant.
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`Request basis: Equity & Fairness.
`Vigilantibus et non d ormientibus jura sub veniunt.
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`Case 3:23-cv-04597-EMC Document 93 Filed 08/18/24 Page 2 of 77
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`Table of Contents
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`Contents
`Plaintiff ’s Motion Requesting Leave to File a Sur-Reply ....................... 3
`I.
`Objections ........................................................................... 6
`A. Plaintiff concedes nothing! ................................................................ 6
`B. Defendant repeatedly misrepresented Plaintiff ’s Fourth Amended
`Complaint and her Opposition to their 4 t h MTD. ....................................... 6
`C. Defendant does not want this case decided on the merit of the claims. .. 9
`D. The Entire Controversy ................................................................... 10
`II.
`Substantive Arguments ......................................................... 11
`E. The Ultrahazardous Activities claim states a claim for Ultrahazardous
`Activities. ............................................................................................. 11
`F. Apple trashed the Plaintiff ’s Property. .............................................. 15
`G. The Statute of Limitations was tolled for the Toxic Torts (Nuisance,
`Ultrahazardous activities, IIED – Cancer). ............................................. 20
`H. Apple’s Unfair Business Practices, in violation of UCL § 17200, caused
`Plaintiff harm to her property and economically. ..................................... 28
`I. Apple’s Conduct was Outrageous, and it Intended to and Did Cause
`Extreme Distress. ................................................................................. 32
`J. Apple’s Knowing Exposure of Plaintiff and her Neighbors to
`Carcinogens was Evil. ........................................................................... 44
`K. Cal.Lab.C. § 6399.7 (via § 6310) includes HAZWOPER. ..................... 45
`L. Apple was certainly reading Plaintiff ’s Twitter posts. ........................ 55
`M. Apple violated Cal.Lab.C. § 1102.5 dozens of times. .......................... 59
`N. Claims for Cal.Lab.C. §§ 98.6 + 1101, 1102 (Politics) + 232.5 ............. 67
`O. Claims for Cal.Lab.C. §§ 232 (Pay) & 232.5 ....................................... 71
`P. Cal.Lab.C. §§ 98.6 + 96k + 232.5 claim (or Tamney &/or UCL). ..........74
`Q. Breach of Implied Covenant of Good Faith & Fair Dealing .................. 75
`R. Plaintiff ’s request for Cal. Labor Code civil penalties is not relevant for
`a subsequent 12(b)(6) motion, or 12(f ) motion. ........................................76
`III. Conclusion ......................................................................... 76
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`Case 3:23-cv-04597-EMC Document 93 Filed 08/18/24 Page 3 of 77
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`Plaintiff’s Motion Requesting Leave to File a
`Sur-Reply
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`1.
`Administrative Motion for Leave to file a Sur-reply in response to Defendant’s
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`the
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`following
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`Plaintiff, Ashley Gjovik,
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`respectfully
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`submits
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`Replies [Docket 89-90] to her Opposition to Defendant’s Motions to Dismiss
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`[Docket 78] and Strike [Docket 79]; and in support of Plaintiff ’s Oppositions to
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`Defendant’s Motions [Docket 84-87].
`2.
`objections, declaration, and request for Judicial Notice. Plaintiff makes this
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`Attached and incorporated are the sur-replies, proposed supplement,
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`request in the interests of justice, in equity, for the sake of decisions on the merits,
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`because of the extreme power imbalance between Plaintiff and Defendant, and
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`because Plaintiff has already been severely prejudiced by Defendant. 1
`3.
`material to this matter, highly prejudicial, and should be corrected for the record
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`The Defendant made false statements and inferences, that are
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`and the Court’s consideration. Defendant has also refused to meet/confer in good
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`faith, refused to negotiate in good faith, repeatedly tried to surprise -attack
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`Plaintiff procedurally, repeatedly made attacks on Plaintiff ’s character and
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`competence, and repeatedly argued
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`in bad faith knowing their arguments
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`contradict the actual facts. Concurrently, Defendant continues to publicly harass,
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`humiliate, and defame the Plaintiff, with a recent example provided in the 7/31
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`Declaration, which includes extensive harassment about this lawsuit and which
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`Defendant urges this court to ignore.
`4.
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`Defendant is a $3.4T corporation, here represented by a $1.4B/year
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`1 Bartlett v. Citibank, Case No. 17-cv-007 12-EMC, 2 n.1 (N.D. Cal. Apr. 19, 2017); Jackson v.
`Applied Mate rials Corp., Case No. 20-cv- 06007-VKD, 5 n.1 (N.D. Cal. Apr. 8, 2021); Staley v.
`Gilead Sciences, Inc ., 19-cv-02573-EMC, 1 n.3 (N.D. Cal. Jul. 16, 2021); Alexsam , Inc . v.
`Wageworks, Inc ., Case No. 19-cv-04538-EMC, 7 (N.D. Cal. Dec. 21, 2020); Simmons First
`National Bank v. Lehman, Case No. 13-cv- 02876-DMR, (N.D. Cal. Apr. 1, 2015).
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`Case 3:23-cv-04597-EMC Document 93 Filed 08/18/24 Page 4 of 77
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`law firm – with essentially unlimited resources at their disposal. Plaintiff is one
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`person, representing herself. Defendant has drawn this legal matter out for over
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`three years now, attempting everything it can to try to ensure the matter is not
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`decided on the merits.
`5.
`which violated FRCP and the local rules, and which Plaintiff expressed she was
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`Defendant’s prior 12(b)(6) motion to dismiss filings included tactics
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`fearful to engage with as she did not want to break the rules as well. 2 Plaintiff was
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`then punished for her attempt to comply with court rules, having two of her claims
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`dismissed with prejudice partially due to her good intentions. 3 Even if the court
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`will not consider this filing, Plaintiff did not concede & the Plaintiff tried to rebut
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`Defendant’s claims.
`6.
`Defendant’s actions, and of the extreme power dynamic between Plaintiff and
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`Plaintiff requests this court’s consideration of her arguments, of
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`Defendant. If Defendant is allowed to repeatedly violate the FRCP in order to
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`attack Plaintiff ’s claims, while Plaintiff is forced to strictly comply with page limit
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`and form rules, then the Defendant will whittle her lawsuit down to a toothpick,
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`2 “ Defendant’s actions put Plaintiff in a difficult situation, as to get her ʻday in court,’ she is
`expected to object and correct statements made by the opposing party if she does not think
`they are accurate – yet if she were to do so where Defendant references and quotes its
`allegations on mooted pleadings, then Plaintiff joins Defendant in conduct this District has
`described as “wholly improper.” Williams v. County of Alameda, 26 F. Supp. 3d 925, 947 (N.D.
`Cal. 2014). Instruction the Court “refuses” to allow parties to “engage in such conduct.” Id.
`In Williams v. County of Alameda , the court refused to ʻconsider the arguments that [the
`party] improperly seeks to incorporate by reference.’ Id. Plaintiff asks this court for similar
`discretion in response to Defendant’s conduct, as Plaintiff does not plan to respond to those
`arguments.” P’s Opp to D’s MTD at 4-5. Docket No. 54.
`3 “Accordingly, the Court dismisses the SOX claim. Dismissal is with prejudice, both because
`of Ms. Gjovik's failure to respond directly to Apple's argument in her opposition and her
`failure to articulate at the hearing new facts that would suggest a violation of the relevant
`criminal fraud statutes or securities laws... As indicated in the discussion above, Ms. Gjovik
`did not directly respond to Apple's challenge to the Dodd-Frank claim; furthermore, she has
`failed to explain how she provided information relating to a violation of the securities laws.
`Accordingly, dismissal of her Dodd-Frank claim, with prejudice, is warranted… Ms. Gjovik
`does not clearly respond to this argument in her papers, and thus the Court dismisses the
`NIED claim in its entirety.” Gjovik v. Apple Inc ., 23-cv- 04597-EMC, 23, 24, 45 (N.D. Cal.
`May. 20, 2024).
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`regardless of the actual merit of her claims.
`7.
`Docket No. 78] requiring extensive research and response drafting in a brief period
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`Defendant filed a fourth 12(b)(6) motion on July 15 2024 [D’s MTD
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`of time, and then upon a best effort to respond by Plaintiff, Apple declared that
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`anything not squarely addressed was “conceded” and should be dismissed with
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`prejudice. Defendant has also declared a maximum total page limit rule for
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`Plaintiff, forbid Plaintiff from filing requests for judicial notice or declarations,
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`misrepresented (or even falsified) Plaintiff ’s statements, and repeatedly accused
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`Plaintiff of misconduct and incompetence. Apple justifies its request to bypass
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`FRCP 12(g) and 12(h) claiming ʻefficiency' and narrowing of claims. This is a
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`reasonable justification in some situations, but here what Apple means is that
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`Apple wants to avoid this lawsuit and silence the Plaintiff.
`8.
`grossly unfair to the Plaintiff, and which could foreclose the majority of this
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`Defendant also filed pending motions, supposedly in equity, that are
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`lawsuit. Defendant attempts to railroad her and cause the Plaintiff to unjustly lose
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`her only opportunity to seek a judicial remedy for the concrete and extensive harm
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`Defendant caused in every aspect of her life.
`9.
`violating FRCP – Plaintiff also makes a request in equity. Plaintiff requests the
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`Because Defendant requests to have claims re-considered despite
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`Court consider her
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`sur-reply
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`(with proposed
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`supplements), objections,
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`declaration, and both requests for judicial notice in addition to her Opposition
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`filings – or provide Plaintiff an opportunity to present proper evidence in a
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`Summary judgement proceeding, if any of her claims would otherwise be
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`dismissed with prejudice.
`10. The proposed supplement herein attempts to address the areas Apple
`demanded more detail. T he point of a Rule 12(b)(6) motion is to determine if the
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`claim could ever be pleaded, not if it’s perfectly pleaded today. T his supplement
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`shows these claims can all be pleaded, even if some are not pleaded perfectly today.
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`Additionally, the Second Amended Complaint is referenced to prove the claims
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`can be plead sufficiently with enough time and pages.
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`I. Objections
`A. Plaintiff concedes nothing!
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`11.
`8/5 at 4, 5, 9, 10, 13]. I concede nothing. Plaintiff responds to substantive points
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`Apple repeatedly claimed Plaintiff conceded to its arguments. [Reply
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`with additional detail herein. As for the Defendant’s many misleading and/or
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`inflammatory arguments – Plaintiff asks the Court to review what was actually
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`filed if Apple attempts to quote Plaintiff ’s documents, as several “quotes” are not
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`actually things she said and are not in the referenced documents. Apple similarly
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`quoted the Court several times in misleading ways that attempt to prejudice the
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`Court against the Plaintiff, 4 and so Plaintiff urges the Court to factcheck Apple’s
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`references and quotes to court filings as well. 5
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`B. Defendant repeatedly misrepresented Plaintiff ’s Fourth Amended
`Complaint and her Opposition to their 4 t h MTD.
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`4 Apple repeatedly intentionally quotes the Court’s May 20 2024 Order and Decision, but drops
`any mention of environmental issues, privacy, or harassment from the quotes, even if it means
`quoting a sentence fragment. Apple: “As the Court recognized in its May 20, 2024 order
`regarding Plaintiff ’s prior complaint, “ [t]he gist of [Plaintiff ’s] suit is that Apple retaliated
`against he r because she complained about conduct at the company[.]” Dkt. 73 (the “May 20
`Order”).” Def ’s MTD at 1, 23. Similar statement also at Def ’s Reply pg1 -2 and MTS pg1.
`5 The Court actually wrote: “The gist of he r suit is that Apple retaliated against he r because she
`complained about conduct at the company, including but not limited to e nvironmentally unsafe
`conditions.” May 20 2024 Order, Docket # 73 at 1. (Cont inued at FN 3). The Court added: “(1)
`During he r e mployme nt with Apple, Ms. Gjovik lived in an apartment near an Apple factor y (known
`as the ARIA factory) and became ill because the factor y released toxic substances into the
`environment. (2) Ms. Gjovik’s office at Apple (known as Stewart 1) was located on a contaminated
`site subject to EPA regulation, i.e ., a Supe rfund site , and she became ill because of Apple’s
`actions/omissions related to the site. (3) Apple made e mployees, including Ms. Gjovik, participate in
`studies related to Apple products that we re invasive to their privacy. (4) Apple retaliated against Ms.
`Gjovik for making complaints about harassment and environme ntal safet y. Ms. Gjovik’s complaints
`included inte rnal complaints, complaints to gove rnmental 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 f rom e mployment.” - May 20 2024 Order, # 73 at 2.
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`12. Apple repeatedly uses their own misleading editorializations of
`statements from both Plaintiff and the Court as justification as to why Plaintiff ’s
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`meritorious claims should be dismissed with prejudice. Apple wrote in it motions
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`and replies, in different formats that: “…this Court recognized in its May 20, 2024
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`order regarding Plaintiff ’s prior complaint [Apple’s misquoting ] …thus dismissal with
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`prejudice of the other claims will facilitate efficient resolution of the … retaliation
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`claims that would remain and enable appropriately focused discovery and motion
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`practice going forward.” [D’s MTD at 1, 25; D’s Replies at 15]. Apple thus also
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`refers to this Court’s discovery orders as “inappropriate” and threatens to file
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`even more motions to dismiss after this one.
`13.
`Plaintiff has not pled anything in bad faith, nor does she believe any claims were
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`In addition, despite the chaotic allegations Defendant thew at her,
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`dismissed due to misconduct or incompetence. The only full claims dismissed with
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`prejudice on substantive points were her pro se, first attempt to plead federal
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`money laundering and securities fraud against a multinational corporation – which
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`is difficult for any attorney to do successfully. Defendant also repeatedly
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`complains about the length, detail, lack of detail, organization, reorganization,
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`and content of her amended complaint – despite filing repeated Motions to Strike
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`previously that urged Plaintiff to engage in significant rewrites.
`14. Defendant declares that existing claims are new even though they are
`not new, and it is quickly discernable that the claims are not new when reviewing
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`the Plaintiff ’s complaint revision tracking table and indexes in her Declaration
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`[Exhibits A-C], which Defendant urges this court to ignore. Defendant also
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`repeatedly claims that Plaintiff was allowed or was not allowed to amend things
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`that the Order seemed to say the opposite of whatever Apple is claiming now.
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`[Def ’s MTD at 2 , 5, 20]. Defendant also repeatedly claims Plaintiff pled new
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`claims, theories, and/or “themes” – but the only major difference is Plaintiff
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`voluntarily removing many claims that were given leave to amend hoping Apple
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`would file an Answer (which Defendant suggests several times is because Plaintiff
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`deserves sanctions...?) and pleading new or revised facts. Plaintiff apologizes if
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`she misunderstood the instructions, but she suspects Apple is just trying to
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`distract and confuse from the substantive issues. [for example, Def ’s MTD at 1-
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`3; MTS at 2-5, 11].
`15. The other major misrepresentation from the Defendant is falsely
`quoting Plaintiff about a material matter that could lead to the dismissal of three
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`of her claims and multiple sub-claims. In Apple’s 8/5 Reply, counsel wrote:
`Apple: “The operative complaint makes clear that by at least March
`2021—over two years before she filed the lawsuit on September 7,
`2023— “she suspect[ed] … that her injury was caused by
`wrongdoing.” See 4AC ¶57 (“On March 26, 2021, the SF Bay View
`newspaper published an article Gjovik wrote about her chemical
`exposure experience with the air around [the Scott building]” entitled
`“I thought I was dying: My apartment was built on toxic waste.”).”
`Def ’s MTD Reply at 9.
`16. However, the quoted text in bold is not anything Plaintiff wrote in her
`complaints, or in the article cited. In ¶ 57 of Plaintiff ’s 4AC she wrote:
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`Plaintiff: “On March 26, 2021, the SF Bay View newspaper published
`an article Gjovik wrote about her chemical exposure experience with
`the air around ARIA. More victims and witnesses promptly came
`forward; some were also Apple employees. On April 5, 2021, Gjovik
`told West about the other victims, and West warned her she was
`“kicking a hornet’s nest.” West asked Gjovik not to send information
`about Gjovik’s chemical exposure at her apartment next to ARIA to
`his personal work email, saying: “Can you send that stuff to my Gmail
`instead of work? My mail account is routinely scanned for lawsuits.” 4AC
`¶ 57.
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`Due to the implication attempted by Defendant, the entirety of the SF Bay View
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`article referenced is attached as Exhibit P in the expanded Request for Judicial
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`Notice. The concluding summary in the article is open questions and brick walls
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`– the opposite of what Apple implies.
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`Plaintiff: “So , what made me sick? While in the end everyone agreed
`it was VOCs, I may never know for certain if it was the chemicals in
`the soil or groundwater and, if so, which ones. I was faced with so
`many walls and dead ends and no real solution at the end. I kept
`asking myself, how do people facing poverty have any chance to
`advocate for themselves? How do Black and Brown people have any
`chance of being heard when they might face bias and discrimination
`at every point along the way? I knew that if I couldn’t find a solution,
`there’s no way these folks would. It’s well known now that toxic
`waste sites are often located near low-income and racial and ethnic
`minority communities. So, these folks are more likely to suffer from
`these issues and have fewer resources to deal with the issues when
`they face them. It was the moment I really started to understand
`environmental justice.” 6
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`17.
`Northern District of California’s Guidelines for Professional Conduct, Rule 18(c):
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`Plaintiff reminds Defendant of the U.S. District Court for the
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`“A lawyer should not create a false or misleading record of events or attribute to
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`an opposing counsel a position not taken.”
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`C. Defendant does not want this case decided on the merit of the
`claims.
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`18. Another argument made by Defendant so provocative as to compel
`Plaintiff to respond here was Defendant’s repeated claims of essentially a new rule
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`that only applies to Plaintiff where she is only allowed to file employment and
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`labor lawsuits, but no other types of lawsuits, regardless of merit . Concurrently
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`Defendant continues to refuse to cooperate outside of Court, even for the
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`employment and labor claims.
`19.
`factual basis of several claims Defendant is not even challenging, Defendant
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`In addition, despite the facts related to 3250 Scott Blvd being the
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`6 Ashley Gjovik, “ I thought I was dying: My apartment was built on toxic waste ,” SF Bay View
`(March 26 2021). https://sfbayview.com/2021/03/i-thought-i-was-dying-my-apartment -was-
`built -on-toxic-waste/
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`suggests any reference to 3250 Scott Blvd be stricken from the lawsuit. This would
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`nullify a number of Plaintiff ’s claims including her Tamney claims for Crime
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`Victim [See, SAC ¶ 859, 4AC ¶ 162] and Legislative Witness [See, SAC ¶858, 4AC
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`¶ 163-165] retaliation and decimate her 1102.5 retaliation claims related to
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`environmental laws and environmental crimes. Further, both the Crime Victim and
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`Legislative Witness claims could stand alone without Tamney , either under their
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`own statutes or standing for the Crim e Victim claim as an injured member of the
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`public 7 - but both require a factual basis that includes 3250 Scott Blvd.
`20. Removing all facts related to 3250 Scott Blvd would also prevent
`Plaintiff from providing a full factual basis for what happened with her and
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`Defendant in all of her claims – including theories for reasonableness, motive,
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`emotional distress, and an eggshell plaintiff in the whistleblower and labor claims.
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`Further, there is already direct evidence of retaliation and animus from Defendant
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`against Plaintiff related to 3250 Scott Blvd. Defendant’s motion tries to conceal
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`this.
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`21.
`to strike the entirety of Section 98.6 from her 4AC despite no express justification
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`Finally, Defendant still does not even attempt to explain why it wants
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`or notice of such mentioned in the motions to dismiss or strike.
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`D. The Entire Controversy
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`22.
`rather than on procedural grounds – recognizing that justice is best served when
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`Public policy factors the determination of litigation on the merits
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`all litigants have a chance to be heard. Procedural requirements should be given
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`liberal construction in order to not deprive a litigant of her day in court because
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`of technical requirements. 8
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`7 Angie M. v. Supe rior Court (Hiemstra) , 37 Cal.App.4th 1217, 1223 (1995).
`8 Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986); CNC Software , LLC v. Glob. Eng'g Ltd .
`Liab. Co., 22-cv-02488-EMC, 10 (N.D. Cal. May. 12, 2023).
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`23. Defendant complains about how many claims there are, nitpicking
`different versions of counts. This is irrelevant. Plaintiff has one claim for relief
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`for each injury. Here she has injuries requiring remedy starting in 2020 (or earlier
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`depending on the claim), through current day, and for some claims also into the
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`future. She has been injured personally (including physically, mentally, and
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`reputationally) 9, and her real property interests and chattel property were also
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`injured. Plaintiff alleges Defendant caused all of that harm to her and owes her a
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`remedy. That is Plaintiff ’s claim. That is the entire controversy. There are
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`multiple causes of action she may pursue, but ultimately the complaint and claims
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`will conform to the evidence as the law demands.
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`II. Substantive Arguments
`E. The Ultrahazardous Activities claim states a claim for
`Ultrahazardous Activities.
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`24. Defendant argues Plaintiff has not addressed Defendant’s concerns
`about whether her claims rise to the level of “Ultrahazardous Activities.” [Def.’s
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`MTD at 17-18, D’s 8/5 Reply at 10]. First, that is a question of law for the Court
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`to decide and the Court did decide that the Activities were Ultrahazardous in the
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`May 20 2024 Decision and Order. 10
`25. The only thing that has changed since the May 20 2024 decision is
`the US EPA Compliance and Enforcement Division released their report of
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`findings from their RCRA inspections of 3250 Scott Blvd in August 2023 and
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`January 2024, which described at least 19 unique violations of the RCRA (and
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`some with hundreds of occurrences); confirmed semiconductor fabrication is
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`9 “Apple poisoned me: physically, mentally, spiritually: Ashley Gjøvik, who was fired by the tech
`giant afte r blowing the whistle on toxic waste unde r he r office , says her fight will go on”, Index on
`Censorship, December 2021, https://www.indexoncensorship.org/2021/12/apple-poisoned-
`me-physically-mentally-spiritually/
`10 Gjovik v. Apple Inc ., 23-cv-04597-EMC, 27-31 (N.D. Cal. May. 20, 2024).
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`occurring at the facility; reported that Apple has been engaging in RCRA
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`hazardous waste treatment and disposal ( including air emissions) without required
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`permits; and explained that Apple has no technology or system in place to monitor
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`the quantity or safety of their air emissions at the plant. [P’s 7/31 RJN Exhibit A
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`pg 3-29]. Now Apple is requesting a re-consideration of the toxic torts and framing
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`their request as a favor to the Court.
`26. Defendant also asks the court to disregard Plaintiff ’s RJN because of
`a new rule Defendant created about overall page limits per motion practice that
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`only applies to Plaintiff. A RJN with policy materials to support legal analysis is
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`not much different than an amicus brief and should be considered regardless.
`27.
`[Def ’s 7/15 MTD at 17-18]. There is no chemical that is absolutely prohibited
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`Further, Defendant’s arguments are strawmen and red herrings.
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`without exception. Similarly, no activity is absolutely prohibited in any and all
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`circumstances. Even the most dangerous well established “Ultrahazardous
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`Activities” could perhaps be considered not ultrahazardous
`
`if they were
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`conducted in Antarctica.
`28. There is a clear balancing test to examine activities. The a nalysis of
`a chemical is part of the danger analysis, but it does not define what is
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`ultrahazardous or not. If the danger is related to a chemical or gas, the chemical
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`does need to be dangerous in order to support an ultrahazardous claim – and these
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`are. Defendant ignores Plaintiff ’s pleadings, opposition, and request for judicial
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`notice (and encouraged the Court to do the same), but those filings describe the
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`dangers of toxic gases with specific examples provided of Arsine, Phosphine,
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`Silane, Fluorine, Diborane, and Stibine. [P.’s 7/31 RJN Exhibit E; P’s Opp to D’s
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`MTD ¶ 64-77].
`29.
`these chemicals warns that no exposure to the chemical is safe, and any exposure
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` As noted in the RJN at Exhibit E, the Int. Safety Cards for four of
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`requires medical attention. Five of these gases are also listed on the 1910 Subpart
`
`— 12 —
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`Case 3:23-cv-04597-EMC Document 93 Filed 08/18/24 Page 13 of 77
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`H “List of Highly Hazardous Chemicals, Toxics and Reactives” 11 (a list of
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`chemicals that have the potential for catastrophe) and other lists of very dangerous
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`chemicals. These gases are inherently dangerous, and they carry a high degree of
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`risk of serious harm. See, Restatement 2 n d of Torts § 520 (1997); Cal. H&S
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`C. §§ 25115, 25117, 25122.7, 25532(i)(2).
`30.
`Apple also stores, uses, and self-reported dumping into the air concentrations of
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`Similarly, these gases are not the only ultrahazardous substances, as
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`mercury and arsenic, and other very dangerous substances. 12 [SAC ¶ 68, 74].
`31.
`industry has ample resources to choose where to locate its factories. Thus, its
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`Further, semiconductor fabrication is not a common activity and
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`highly inappropriate for Apple locate a fab next to apartments and/or to hide the
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`fab activities while apartments were built next-door, especially as a $3.4 Trillion
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`company with nearly unlimited resources and options. Ca. Health and Saf. Code §
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`25110.4 defines "buffer zone" as “an area of land that surrounds a hazardous waste
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`facility and on which certain land uses and activities are restricted to protect the
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`public health and safety and the environment from existing or potential hazards
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`caused by the migration of hazardous waste.” A buffer was required here, by law
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`and logic, but there was none at all.
`32. While there
`community where industry provides jobs and brings in tax money – this is a
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`justification of a benefit to the
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`is usually some
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`different situation, because Apple does not pay its taxes and also implicates its
`
`
`11 “This appendix contains a listing of toxic and reactive highly hazardous che micals which present
`a potential for a catastrophic event…y .” 1910 Subpart H 1910.119 App A; examples: Arsine
`(7784-42-1), Phosphine (7803 -51-2), Stibine (Antimony Hydride) (7803 -52-3), Fluorine (7782-
`41-4), Diborane (19287-45- 7).
`12 "Extremely hazardous waste" means any hazardous waste or mixture of hazardous wastes
`which, if human exposure should occur, may likely result in death, disabling personal injur y
`or serious illness caused by the hazardous waste or mixture of hazardous wastes because of its
`quantity, concentration, or chemical characteristics.” Cal. H&S Code § 25115. See also,
`"Acutely hazardous waste,” Cal. Code Regs. T it. 22, § 66260.10.
`— 13 —
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`Case 3:23-cv-04597-EMC Document 93 Filed 08/18/24 Page 14 of 77
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`employees in environmental crimes. 13
`33. That’s not the end of the analysis though. It is also critical to
`determine if there is any way to manage the chemicals safely. 14 The RJN’s Exhibits
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`D-O [RJN ¶ 13, 16, 18] explain that when it comes to these specific toxic gases
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`used for semiconductor fabrication, there is no way to avoid a catastrophe. This
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`is often the heaviest factor in the analysis for Ultrahazardous Activities – there is
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`nothing that can be done to limit risk other than strictly restrict the amount of the
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`substance allowed and how far it must be kept away from human life and sensitive
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`environments. That is the case here – as noted by the city, county, and fire code
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`[P’s 7/31 RJN Exhibit O], that Apple asks this court to ignore [D’s 7/15 MTD at
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`17]. Even if Apple were to take all reasonable precautions and exercised all
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`reasonable care, there would still be unavoidable risk remaining in their use of
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`toxic gases for semiconductor fabrication at 3250 Scott Blvd directly next to
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`thousands of homes.
`34. The next critical factor is how appropriate the activity is for the
`location. 7/31 RJN Exhibit B [RJN ¶ 19-21] shows the position of this fab in
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`relation to residential housing. Not only are there laws in place that are supposed
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`to prevent this from ever happening, but any reasonable person viewing this
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`distance is likely to shout “Outrageous!” – as thousands of people did with
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`Plaintiff ’s recent Twitter thread about the RCRA inspection report for 3250 Scott
`
`
`13 “Cupertino's mayor says Apple is 'not willing to pay a dime' in taxes,” The Verge, May 5
`2016, https://www.theverge.com/2016/5/5/11604704/apple- tax-evasion-cupertino-mayor-
`barr y-chang-reform; “A pple’s Agree me nt With Cupe rtino Is Taxpayer-Fleecing Collusion,”
`Bloomberg, April 18 2023, https://news.bloombergtax.com/tax-insights-and-
`commentar y/apples-agreement -with-cupertino-is- taxpayer-fleecing- collusion; “W ant a lower
`tax bill? So do Apple and Ge ne ntech ,” San Francisco Chronicle, Aug. 12 2018,
`https://www.sfchronicle.com/business/article/Want -a-l