Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 1 of 17
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`JESSICA R. PERRY (STATE BAR NO. 209321)
`ANNIE PRASAD VADILLO (STATE BAR NO. 318440)
`JILLIAN V. KALTNER (STATE BAR NO. 324398)
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, CA 94025-1015
`Telephone:
`+1 650 614 7400
`Facsimile:
`+1 650 614 7401
`jperry@orrick.com
`avadillo@orrick.com
`jkaltner@orrick.com
`
`Attorneys for Defendant
`APPLE INC.
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
`
`DONALD K. SHRUHAN, JR. an individual,
`
`Case No. 5:22-cv-05498-EJD
`
`Plaintiff,
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`v.
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`APPLE INC., a Delaware corporation, and
`DOES 1-10,
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`Defendants.
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`DEFENDANT APPLE INC.'S NOTICE
`OF MOTION AND MOTION TO
`DISMISS AND/OR STRIKE
`PLAINTIFF’S COMPLAINT;
`MEMORANDUM OF POINTS AND
`AUTHORITIES
`
`Date: April 6, 2023
`Time: 9:00 a.m.
`Dept.: 4
`Judge: Hon. Edward J. Davila
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 2 of 17
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .............................................................................................................. 1
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`PROCEDURAL HISTORY ................................................................................................ 2
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`
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`I.
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`II.
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`III.
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`RELEVANT FACTUAL ALLEGATIONS ....................................................................... 3
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`IV. MOTION TO DISMISS UNDER RULE 12(B)(6) ............................................................ 4
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`A.
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`B.
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`C.
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`D.
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`E.
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`Legal Standard ........................................................................................................ 4
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`Shruhan Cannot Separately Pursue Two Identical Lawsuits .................................. 4
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`Shruhan Cannot Bring California Claims ............................................................... 5
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`1.
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`2.
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`FEHA Does Not Apply to Non-California Residents ................................. 5
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`Business & Professions Code Section 17200 Only Applies to
`California Residents .................................................................................... 6
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`Shruhan Fails to Sufficiently Plead an Age Discrimination Claim......................... 7
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`Shruhan’s Derivative Failure to Prevent Discrimination and UCL Claims
`Fail .......................................................................................................................... 8
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`V.
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`MOTION TO STRIKE ....................................................................................................... 9
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`A.
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`Legal Standard ........................................................................................................ 9
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`1.
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`2.
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`Paragraphs 1-8 are Immaterial, Irrelevant, and Prejudicial......................... 9
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`The Court Should Strike Shruhan’s Request for Punitive Damages ........ 11
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`VI.
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`CONCLUSION ................................................................................................................. 11
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 3 of 17
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`
`
`TABLE OF AUTHORITIES
`
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`Page
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`Federal Cases
`
`
`
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .............................................................................................................. 4, 8
`
`Balisteri v. Pacifica Police Dept,
`901 F.2d 696 (9th Cir. 1988) ..................................................................................................... 4
`
`Barajas v. Carriage Servs., Inc.,
`No. 19-CV-02035-EMC, 2020 WL 1189854 (N.D. Cal. Mar. 12, 2020) ................................. 9
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`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ............................................................................................................ 4, 11
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`Biggins v. Wells Fargo & Co.,
`266 F.R.D. 399 (N.D. Cal. 2009) ............................................................................................ 10
`
`Buchanan v. NetJets Servs., Inc.,
`2018 WL 1933189 (N.D. Cal. Apr. 24, 2018) .......................................................................... 5
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`In Re Cyprus Semiconductor Securities Litigation,
`864 F.Supp. 957 (N.D. Cal. September 26, 1994) .................................................................... 5
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`Dodd-Owens v. Kyphon, Inc.
`2007 WL 420191 (N.D. Cal. Feb. 5, 2007)............................................................................... 6
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`Ehret v. Uber Technologies, Inc.,
`68 F.Supp.3d 1121 (N.D. Cal. 2014) ........................................................................................ 6
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`Ellison v. Autozone Inc.,
`2007 WL 1795699 (N.D. Cal. June 20, 2007) .......................................................................... 5
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`Fantasy, Inc. v. Fogerty,
`984 F.2d 1524 (9th Cir. 1993) ............................................................................................. 9, 10
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`Gonsalves v. Infosys Technologies, Ltd.,
`2010 WL 1854146 (N.D. Cal. May 6, 2010) ............................................................................ 5
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`Gulaid v. CH2M Hill, Inc.,
`2016 WL 5673144 (N.D. Cal. Oct. 3, 2016) ............................................................................. 6
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`Jones v. AIG Risk Mgmt.,
`726 F. Supp. 2d 1049 (N.D. Cal. 2010) .................................................................................... 4
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`McCamey v. Hewlett Packard Co.,
`No. S-11-0702 FCD (GGH), 2011 WL 4056158 (E.D. Cal. Sept. 12, 2011) ......................... 10
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`

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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 4 of 17
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`
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`TABLE OF AUTHORITIES
`(continued)
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`
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`Miller v. Uni-Pixel Inc.,
`No. 17-CV-02187 NC, 2017 WL 3007082 (N.D. Cal. July 14, 2017) .................................. 10
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`Page
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`NetApp, Inc. v. Nimble Storage, Inc.,
`No. 5:13-CV-05058-LHK (HRL), 2015 WL 400251 (N.D. Cal. Jan. 29, 2015) .............. 10, 11
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`Oliney v. Gardner,
`771 F.2d 856 (5th Cir.1985) ...................................................................................................... 5
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`Papasan v. Allain,
`478 U.S. 265 (1986) .................................................................................................................. 4
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`Parkinson v. Hyundai Motor America,
`258 F.R.D. 580 (C.D. Cal. 2008) .............................................................................................. 6
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`Shroyer v. New Cingular Wireless Servs., Inc.,
`622 F.3d 1035 (9th Cir. 2010) ................................................................................................... 4
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`Wathan v. Pazin,
`2007 WL 4181716 (E.D. Cal. November 21, 2007) ................................................................. 5
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`State Cases
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`Campbell v. Arco Marine,
`42 Cal. App. 4th 1850 (1996).................................................................................................... 6
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`Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.,
`20 Cal. 4th 163 (1999) .............................................................................................................. 8
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`Dickson v. Burke Williams, Inc.,
`234 Cal. App. 4th 1307 (2015).................................................................................................. 8
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`Sandell v. Taylor-Listug, Inc.,
`188 Cal. App. 4th 297 (2010).................................................................................................... 7
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`Saunders v. Super. Ct.,
`27 Cal. App. 4th 832 (1994)...................................................................................................... 8
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`Scott v. Phoenix Schools, Inc.,
`175 Cal. App. 4th 702 (2009).................................................................................................. 11
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`Trujillo v. N. Cnty. Trans. Dist.,
`63 Cal. App. 4th 280 (1998)...................................................................................................... 8
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`State Statutes
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`Business & Professions Code § 17200 ........................................................................... 2, 3, 6, 8, 9
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`- iii -
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 5 of 17
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`
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`TABLE OF AUTHORITIES
`(continued)
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`Cal. Civil Code § 3294(b) ............................................................................................................. 11
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`Page
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`Cal. Code Regs. Title 2, § 11008(d)(1)(C) ..................................................................................... 5
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`Cal. Gov’t Code § 12920 ................................................................................................................ 5
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`Rules
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`Fed. R. Civ. P. 2(f) ...................................................................................................................... 1, 9
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`Fed. R. Civ. P. 12(b)(6) ............................................................................................................... 1, 4
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`
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`Other Authorities
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`Donald K. Shruhan, Jr. v. Apple Inc.
`(Case No. 5:22-cv-05481-EJD) ............................................................................................. 1, 4
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 6 of 17
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`NOTICE OF MOTION AND MOTION
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`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
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`PLEASE TAKE NOTICE that on April 6, 2023 at 9:00 a.m. or as soon thereafter as the
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`matter may be heard, before the Honorable Edward J. Davila, Courtroom 4, United States District
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`Court, Northern District of California, located at 280 South 1st Street, San Jose, CA 95113,
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`Defendant Apple Inc. will move the Court for an Order dismissing and/or striking Plaintiff
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`Donald K. Shruhan Jr.’s Complaint on the grounds that the Complaint must be dismissed because
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`it is entirely duplicative another action already pending before this Court; that Plaintiff failed to
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`state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure
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`12(b)(6), because as an out of state resident he cannot bring claims under California law, that
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`even if Plaintiff could bring California claims he fails to state a claim, and that Plaintiff’s
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`immaterial and impertinent allegations, including those regarding the alleged history of Silicon
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`Valley and other immaterial contentions should be stricken pursuant to Federal Rule of Civil
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`Procedure 12(f). This Motion is based upon this Notice of Motion and Motion, the Memorandum
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`of Points and Authorities in support thereof, the Request for Judicial Notice, the Declaration of
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`Annie Prasad Vadillo, the Reply brief filed in support of this Motion, the papers on file in this
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`action, oral argument at the hearing and any other matters that the Court may properly consider.
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`This complaint should be dismissed with prejudice, as it is entirely duplicative of another
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`existing action already pending before this court, Donald K. Shruhan, Jr. v. Apple Inc. (Case No.
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`5:22-cv-05481-EJD). It is well established that a plaintiff cannot maintain two separate actions
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`involving the same subject matter at the same time in the same court and against the same
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`defendant. Shruhan must not be permitted to do so here.
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`Further, Plaintiff’s Complaint should be dismissed with prejudice because it fails to state
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`any colorable claim. Fatally, Shruhan admits that at all relevant times, he was never a California
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`resident. Compl. ¶ 14 (“At all times relevant to the allegations made in this Complaint [Shruhan]
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`was domiciled in Pima County, Arizona”.) Nevertheless, Shruhan impermissibly seeks the
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 7 of 17
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`protection of California law. As Shruhan fails to allege any factual nexus between the alleged
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`wrongful acts and California, his California claims (and thus his entire Complaint) must be
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`dismissed as a matter of law.
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`But even if California law could somehow apply, Shruhan’s claims still fail. First,
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`Shruhan fails to plead sufficient facts to establish the essential elements of his FEHA age
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`discrimination claim. He does not allege that he suffered an adverse employment action or other
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`factual circumstances that suggest discriminatory animus. On the contrary, Shruhan alleges that
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`he was highly compensated with discretionary bonuses well into his sixties, received unanimously
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`positive performance feedback from his managers, and was asked to continue working for Apple
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`in a new role once he decided to return from an international assignment rather than retire. It is
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`not plausible that these events support a prima facie claim for age discrimination.
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`Second, his claims for FEHA failure to prevent discrimination and violations of California
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`Business and Professions Code section 17200 et seq., both of which are wholly derivative of the
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`age discrimination claim, similarly fail to state a claim.
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`Finally, to the extent this Court does not dismiss Shruhan’s claims, it must strike
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`Shruhan’s improper and immaterial allegations about the alleged history of ageism in Silicon
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`Valley and his insufficiently pled request for punitive damages. The “history of ageism”
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`allegations are non-specific, inflammatory, prejudicial allegations that have nothing to do with
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`Shruhan. And his request for punitive damages should be stricken because he fails to plead any
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`facts to establish that any managing agent of Apple acted with malice, oppression or fraud.
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`For all of these reasons described in detail below, the Court should grant this Motion.
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`II.
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`PROCEDURAL HISTORY
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`On September 26, 2022, Plaintiff Donald Shruhan a complaint in Northern District of
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`California (Case No. 5:22-cv-05481-EJD). Request for Judicial Notice in Support of Defendant
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`Apple Inc.’s Motion to Dismiss and/or Strike (“RJN”), Ex. A. The following day, Apple removed
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`the instant identical lawsuit (Case No. 5:22-cv-05498-EJD), which was pending in Santa Clara
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`- 2 -
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 8 of 17
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`Superior Court, to the Northern District of California. See, Complaint; RJN, Ex. B.1 Both
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`complaints contain factually identical allegations and allege the same causes of action: (1) FEHA
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`age discrimination, (2) FEHA failure to prevent age discrimination, and (3) violation of California
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`Business and Professions Code section 17200 et seq. RJN, Ex. A; Compl. Apple was not served
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`with either complaint until weeks later, on October 13, 2022, when Plaintiff served Apple with
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`both the state court and federally filed actions. Declaration of Annie Vadillo (“Vadillo Decl.”) ¶
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`2, Ex. A. Shruhan now has two identical cases pending before this Court and he is inexplicably
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`maintaining both separate actions. Out of an abundance of caution, Apple files its Motion to
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`Dismiss and/or Strike in both of the pending actions.
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`III. RELEVANT FACTUAL ALLEGATIONS
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`Shruhan began working for Apple Inc. in 2008 as the Senior Director of Global Security
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`and IP Enforcement for the Asia Pacific region. Compl. ¶ 18. Shruhan alleges that “at all times
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`relevant to the allegations made in this Complaint [he] was domiciled in Pima County, Arizona”.
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`Compl. ¶ 13. Accordingly, Shruhan was never a resident of California at any relevant time.
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`Shruhan alleges he received “unequivocally positive” performance reviews from his
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`supervisors from 2017-2021, when he was 62-66 years old. Compl. ¶ 21. In 2017 and 2018, at
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`ages 62 and 63, Shruhan alleges he received RSUs valued at $850,000 and $800,000. Compl. ¶
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`29. Shruhan alleges that in 2018, Apple informed him it would not renew his expat package and
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`he’d therefore leave his position in the Asia Pacific region by 2020. Compl. ¶ 24. Shruhan alleges
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`that one of his supervisors then negotiated to keep him at Apple, which he only agreed to consider
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`if Apple met his conditions, one of which was to have less responsibility and be at a lower level.
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`Compl. ¶ 24. Shruhan was approximately 63 years old at this time. Compl. ¶ 27.
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`Shruhan alleges on September 26, 2019, despite his “excellent” performance review,
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`Apple did not award him an RSU grant. Compl. ¶ 27. He alleges his then-supervisor confirmed he
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`did not award RSUs because RSUs were designed as an investment in the future and a retention
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`1 The only difference between the complaint Plaintiff filed in state court (Case No. 5:22-cv-
`05498-EJD) and the complaint Plaintiff filed in federal court (Case No. 5:22-cv-05481-EJD), is
`the Section II, Jurisdiction and Venue. Compare RJN, Ex. A with Compl. The factual allegations
`in the two complaints are the same. Id.
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 9 of 17
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`hook. Shruhan contends that explanation “implied” that the decision was made because of his
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`age. Compl. ¶ 30.
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`Shruhan alleges that when he raised a concern about not receiving the RSU grant, Apple
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`explained that he was subject to a “clawback policy.” Compl. ¶ 32.
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`IV. MOTION TO DISMISS UNDER RULE 12(B)(6)
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`A.
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`Legal Standard
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`“[A] defendant should not be forced to undergo costly discovery unless the complaint
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`contains enough detail, factual or argumentative, to indicate that the plaintiff has a substantial
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`case”. Jones v. AIG Risk Mgmt., 726 F. Supp. 2d 1049, 1059 (N.D. Cal. 2010) (citations omitted).
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`Complaints “must contain either direct or inferential allegations respecting all the material
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`elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 562 (2007). A district court properly dismisses a complaint if the
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`complaint (1) lacks a cognizable legal theory or (2) fails to plead sufficient facts. Balisteri v.
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`Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1988); see also Fed. R. Civ. P. 12(b)(6). To
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`survive a motion to dismiss, a complaint must allege sufficient facts under a cognizable legal
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`theory to “state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs.,
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`Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). It requires more than “an unadorned, the defendant-
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`unlawfully-harmed-me accusation” or “‘labels and conclusions’ or ‘a formulaic recitation of the
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`elements of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
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`550 U.S. at 570). A claim has facial plausibility “when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Iqbal, 566 U.S. at 684. The court need not accept “a legal conclusion couched as a
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`factual allegation” as true. Papasan v. Allain, 478 U.S. 265, 286 (1986).
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`B.
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`Shruhan Cannot Separately Pursue Two Identical Lawsuits
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`
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`The instant case must be dismissed in its entirety with prejudice because it is factually and
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`legally identical to an existing action already pending before this court, Donald K. Shruhan, Jr. v.
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`Apple Inc. (Case No. 5:22-cv-05481-EJD). Plaintiffs “have no right to maintain two separate
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`actions involving the same subject matter at the same time in the same court and against the same
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`- 4 -
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 10 of 17
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`defendant.” Wathan v. Pazin, 2007 WL 4181716 *7 (E.D. Cal. November 21, 2007) (internal
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`quotation omitted); Ellison v. Autozone Inc., 2007 WL 1795699 *1 (N.D. Cal. June 20, 2007)
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`(“District courts have inherent authority to dismiss duplicative cases brought for purposes of
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`harassment or of evading prior court orders.”) ; In Re Cyprus Semiconductor Securities Litigation,
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`864 F.Supp. 957, 959 (N.D. Cal. September 26, 1994)(“The filing of a successive, identical class
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`action qualifies as abusive [. . . as it] entails unnecessary duplication.”); Oliney v. Gardner, 771
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`F.2d 856, 859 (5th Cir.1985) (“When a plaintiff files a second complaint alleging the same cause
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`of action as a prior, pending, related action, the second complaint may be dismissed.”).
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` Pursuing identical and duplicative actions is an improper and abusive waste of judicial
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`resources. The instant action, which has a higher case number assignment and did not arrive to
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`the Northern District until after Case No. 5:22-cv-05481-EJD was filed, must be dismissed with
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`prejudice. See, Wathan, 2007 WL 4181716 at *7; Ellison, 2007 WL 1795699 at *1; Oliney, 771
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`F.2d at 859; In Re Cyprus Semiconductor Securities Litigation, 864 F.Supp. at 959.
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`C.
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`Shruhan Cannot Bring California Claims
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`Even if this duplicative complaint could survive, it must be dismissed because as an out-
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`of-state resident, Shruhan cannot bring claims under California law. Shruhan acknowledges that
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`“at all times relevant to the allegations made in this complaint [Shruhan] was domiciled in Pima
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`County, Arizona.” Compl. ¶13.
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`1.
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`FEHA Does Not Apply to Non-California Residents
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`FEHA is intended to protect California citizens. Cal. Gov’t Code §12920 (“This part shall
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`be deemed an exercise of the police power of the state for the protection of the welfare, health,
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`and peace of the people of this state.”) (emphasis added); see also Cal. Code Regs. tit. 2, §
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`11008(d)(1)(C). This court has repeatedly confirmed that in order to state a claim under FEHA,
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`the allegedly discriminatory conduct must have occurred in California. See e.g., Buchanan v.
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`NetJets Servs., Inc., 2018 WL 1933189, at *2 (N.D. Cal. Apr. 24, 2018) (no claim under FEHA
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`even when plaintiff was hired in CA and moved to TX, supervised by CA managers, and
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`performed some duties while working in San Jose); Gonsalves v. Infosys Technologies, Ltd., 2010
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`WL 1854146, at *6 (N.D. Cal. May 6, 2010) (allegation that personnel in California instituted,
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`

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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 11 of 17
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`approved, ratified, affirmed and/or implemented discriminatory policies that led to plaintiff's
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`injuries was too generalized to support extraterritorial application of FEHA; must show “a factual
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`nexus between [Defendant's] California-based activities and the alleged discriminatory conduct”);
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`Gulaid v. CH2M Hill, Inc., 2016 WL 5673144, at *9 (N.D. Cal. Oct. 3, 2016) (no FEHA
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`discrimination based on constructive discharge where plaintiff did not plausibly allege the
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`relevant conduct that caused the alleged intolerable conditions occurred in California); see also
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`Campbell v. Arco Marine, 42 Cal. App. 4th 1850, 1856-59 (1996) (applying FEHA
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`extraterritorially to protect non-California residents injured outside California “would raise
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`serious constitutional concerns” under the Commerce, Due Process, and Full Faith and Credit
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`Clauses).
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`The Complaint here does not include a single factual allegation supporting extraterritorial
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`application of FEHA. Alleging Apple’s principal place of business is in California is insufficient.
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`Dodd-Owens v. Kyphon, Inc. 2007 WL 420191, at *3 (N.D. Cal. Feb. 5, 2007) (“ If California-
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`based employees participated in or ratified the alleged tortious conduct, the complaint must so
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`state with specificity so that the Court can determine if these actions are sufficient to state a claim
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`under FEHA.”).2 Without any factual nexus to California, Shruhan’s FEHA claims fail as a matter
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`of law.
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`2.
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`Business & Professions Code Section 17200 Only Applies to California
`Residents
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`Similarly, as an out-of-state resident, Shruhan cannot seek the extraterritorial application
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`of Section 17200 (“UCL”) without alleging a factual nexus to California. Parkinson v. Hyundai
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`Motor America, 258 F.R.D. 580 (C.D. Cal. 2008) (extraterritorial application of UCL is improper
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`where non-residents of CA raise claims based on conduct that allegedly occurred outside of the
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`state; however, extraterritorial application of the UCL is not barred where the alleged wrongful
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`conduct occurred in CA); Ehret v. Uber Technologies, Inc., 68 F.Supp.3d 1121 (N.D. Cal. 2014)
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`2 Like the instant case, in Dodd-Owens, the operative complaint “appear[ed] to assert that the
`corporate officers named in the allegations ratified or participated in the challenged conduct,
`[however] it only implies that they were employed in California and does not identify what
`actions, if any, they took in California.” Id.
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 12 of 17
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`(UCL does not apply to actions occurring outside of California that injure non-residents, absent a
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`nexus between the conduct at issue and California itself).
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`Because Shruhan, an admitted Arizona resident, failed to allege any factual nexus between
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`California and his allegations of unlawful conduct, his UCL claim fails as a matter of law.
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`D.
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`Shruhan Fails to Sufficiently Plead an Age Discrimination Claim
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`Even if Shruhan could bring a claim under California’s FEHA, his claim for age
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`discrimination fails to state a claim as a matter of law. Shruhan’s contentions that Apple
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`discriminated against him by (1) failing to award him RSU grants “commensurate with
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`performance and the desire to retain Plaintiff” and (2) threatening to demote him based on his
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`“advanced age and discriminatory assumption that he would soon retire” are insufficient and
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`should be dismissed. Compl. ¶ 49.
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`To establish a prima facie case of discrimination, Shruhan must show: (1) he is over the
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`age of 40; (2) he suffered an adverse employment action; (3) he was performing satisfactorily at
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`the time of the adverse action; and (4) he suffered the adverse action under circumstances that
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`give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced
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`by someone significantly younger than the plaintiff.” Sandell v. Taylor-Listug, Inc., 188 Cal. App.
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`4th 297, 321 (2010). Here, Shruhan fails to plead the fourth element.
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`The events Shruhan alleges do not “give rise to an inference” that Apple was unlawfully
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`discriminating against him because of his age. See Sandell, 188 Cal. App. 4th at 321. In fact, the
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`Complaint pleads quite the opposite. Shruhan claims his supervisors praised his performance (¶¶
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`19-21, 36), when Apple decided to not renew his expat package, those supervisors negotiated to
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`keep him with the company and were “thrilled” that he would consider staying on in a new lower
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`level role (¶¶ 24, 25), that for years while he was in his sixties he received positive performance
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`reviews and RSU grants which he valued at $800,000+ (¶¶ 21, 29), and that the only year he did
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`not receive an RSU grant was 2019 when he was transitioning to a new lower level role and told a
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`clawback provision applied (¶¶ 32, 24, 25, 40). Apple giving Shruhan positive performance
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`reviews, awarding him multiple discretionary RSU grants every year except for the one year that
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`a clawback provision applied, and fighting to keep him at the company can hardly be said to be
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`

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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 13 of 17
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`evidence that the company engaged in age discrimination against him. Shruhan’s conclusory
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`allegation that “age-based assumptions” were a motivating factor in his 2019 RSU allocation are
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`simply not enough to state a claim under Twombly/Iqbal. Iqbal, 556 U.S. at 678 (quoting
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`Twombly, 550 U.S. at 570) (holding that “an unadorned, the defendant-unlawfully-harmed-me
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`accusation” or “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
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`action’” are insufficient).
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`E.
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`Shruhan’s Derivative Failure to Prevent Discrimination and UCL Claims Fail
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`Shruhan’s failure to prevent claim is derivative of his underlying FEHA claim. As the
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`FEHA age discrimination claim fails, so too does his failure to prevent claim. See e.g., Dickson v.
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`Burke Williams, Inc., 234 Cal. App. 4th 1307, 1309 (2015) (““[C]ourts have required a finding of
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`actual discrimination or harassment under FEHA before a plaintiff may prevail under section
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`12940, subdivision (k).”); Trujillo v. N. Cnty. Trans. Dist., 63 Cal. App. 4th 280, 289 (1998)
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`(“Employers should not be held liable to employees for failure to take necessary steps to prevent
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`such conduct, except where the actions took place and were not prevented.”).
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`Similarly, even if the UCL applied to him, Shruhan’s claim is predicated on and therefore
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`fails with his other substantive claims. Section 17200 does not create substantive law, but instead
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`is a shell cause of action that provides an avenue of relief for asserted violations of established
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`legal obligations by “borrowing” violations of other laws and treating them as independently
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`actionable. Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999).
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`Section 17200 is not a catch-all tort cause of action that can be used to establish liability for
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`allegedly unlawful acts where there is no liability for the underlying acts. Id. Rather, the statute
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`requires the allegation of conduct that is “forbidden by law, be it civil or criminal, federal, state,
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`or municipal, statutory, regulatory, or court-made.” Saunders v. Super. Ct., 27 Cal. App. 4th 832,
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`838-39 (1994).
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`Here, Shruhan does not allege any independent conduct other than that which allegedly
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`supports the other defective claims asserted in the Complaint. Shruhan simply cobbles together
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`the defective allegations set out in the rest of his Complaint and asserts that all such claims
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`constitute the “unlawful, unfair and fraudulent” acts underlying the Section 17200 claim. Compl.
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`DEFENDANT APPLE INC.’S NOTICE OF MOTION AND MOTION
`TO DISMISS AND/OR STRIKE [5:22-CV-05498-EJD]
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`

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`Case 5:22-cv-05498-EJD Document 12 Filed 11/02/22 Page 14 of 17
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`¶¶ 61