Case 3:23-cv-04597-EMC Document 179 Filed 02/27/25 Page 1 of 34
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ASHLEY M GJOVIK,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`Case No. 23-cv-04597-EMC
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`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANT’S
`MOTION TO DISMISS; AND
`DENYING PLAINTIFF’S MOTION TO
`AMEND
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`Docket Nos. 145 and 155
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`
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`Plaintiff Ashley Gjovik, proceeding pro se,1 is a former employee of Defendant Apple, Inc.
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`She started to work for Apple in February 2015 and was ultimately terminated in September 2021.
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`About two years after she was fired, she initiated this lawsuit. In the operative fifth amended
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`complaint (“5AC”), Ms. Gjovik asserts seven different claims against Apple, all predicated on
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`state law. For the most part, the claims fall into two basic categories: (1) Apple engaged in
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`environmentally unsafe conduct that harmed Ms. Gjovik and (2) Apple retaliated against Ms.
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`Gjovik – including by terminating her from employment – because she complained about certain
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`company conduct, including but not limited to environmentally unsafe conduct.
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`Now pending before the Court is Apple’s motion to dismiss portions of the 5AC. Having
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`considered the parties’ briefs and accompanying submissions, as well as the oral argument
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`presented at the hearing on February 21, 2025,2 the Court hereby GRANTS in part and DENIES
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`1 Ms. Gjovik appears to have a J.D. from Santa Clara University.
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`2 After the hearing was held, a declaration was submitted by a third party, Cher Scarlett. See
`Docket No. 186 (Scarlett Decl.). The Court does not consider the declaration because pending
`before it is a 12(b)(6) motion.
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`Case 3:23-cv-04597-EMC Document 179 Filed 02/27/25 Page 2 of 34
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`in part the motion to dismiss.
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`I.
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`FACTUAL & PROCEDURAL BACKGROUND
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`The 5AC is largely consistent with the prior pleadings. That is, as before, the main
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`categories of misconduct by Apple as alleged in the 5AC are as follows:
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`(1) During her employment with Apple, Ms. Gjovik lived in an
`apartment near an Apple factory (known as the ARIA factory) and
`became ill because the factory released toxic substances into the
`environment.
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`(2) Ms. Gjovik’s office at Apple (known as Stewart 1) was located on
`a contaminated site subject to EPA regulation, i.e., a Superfund
`site, and she became ill because of Apple’s actions/omissions
`related to the site.
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`(3) Apple made employees, including Ms. Gjovik, participate in
`studies related to Apple products that were invasive to their
`privacy.
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`(4) Apple retaliated against Ms. Gjovik for making complaints about
`harassment and environmental safety. Ms. Gjovik’s complaints
`included
`internal complaints, complaints
`to governmental
`agencies, complaints to the press, and complaints made in social
`media. The retaliation by Apple included but was not limited to
`the termination of Ms. Gjovik from employment.
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`Docket No. 73 (Order at 2).
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`Based on, inter alia, these factual allegations, Ms. Gjovik asserts the following causes of
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`action in the 5AC:
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`(1) Wrongful termination in violation of public policy.
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`(2)
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`Violation of the California Whistleblower Act. See, e.g., Cal. Lab. Code §
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`1102.5(b) (providing that an employer “shall not retaliate against an employee
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`for disclosing information . . . to [inter alia] a government or law enforcement
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`agency [or] to a person with authority over the employee . . . if the employee
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`has reasonable cause to believe that the information discloses a violation of a
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`state or federal statute, or a violation of or noncompliance with a local, state, or
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`federal rule or regulation”).
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`(3)
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`Violation of California Labor Code § 6310. See, e.g., id. § 6310(a) (providing
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`that “[n]o person shall discharge or in any manner discriminate against any
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`Case 3:23-cv-04597-EMC Document 179 Filed 02/27/25 Page 3 of 34
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`employee because the employee has [e.g.] [m]ade any oral or written complaint
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`to the [Division of Occupational Safety and Health] [or] other governmental
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`agencies having statutory responsibility for or assisting the division with
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`reference to employee safety or health”).
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`(4)
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`Violation of California Labor Code § 98.6. See id. § 98.6(a) (providing that
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`“[a] person shall not discharge an employee or in any manner discriminate,
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`retaliate, or take any adverse action against any employee . . . because the
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`employee . . . engaged in any conduct delineated in this chapter . . . or because
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`the employee . . . has filed a bona fide complaint or claim . . . under or relating
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`to their rights that are under the jurisdiction of the Labor Commissioner . . . or
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`because of the exercise by the employee . . . on behalf of themselves or others
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`of any rights afforded them”).
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`(5)
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`(6)
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`(7)
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`Creation and maintenance of a private nuisance at the ARIA factory.
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`Intentional infliction of emotional distress – fear of cancer.
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`Intentional infliction of emotional distress – “traditional.”
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`Apple has challenged Counts 5-7 above (i.e., the non-retaliation claims) in their entirety. It
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`also has moved to dismiss part of two retaliation claims – i.e., the § 1102.5 claim (Count 2) and
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`the § 98.6 claim (Count 4). Apple has not moved to dismiss in whole or in part the other two
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`retaliation claims (Counts 1 and 3, respectively, termination in violation of public policy and
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`violation of § 6310).
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`A.
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`Legal Standard
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`II.
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` DISCUSSION
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`Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
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`complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil
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`Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss
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`after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic
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`Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must .
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`. . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d
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`1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and
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`construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St.
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`Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a
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`complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient
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`allegations of underlying facts to give fair notice and to enable the opposing party to defend itself
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`effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The
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`plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
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`possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).
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`B.
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`Untimely and Oversized Opposition
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`As an initial matter, the Court takes note that Ms. Gjovik initially filed an opposition at
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`Docket No. 149 that was 26 pages in length (i.e., only one page over the 25-page limit). However,
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`approximately seven hours later, she filed a corrected version of the brief at Docket No. 150; that
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`corrected opposition is 36 pages in length. She claims that this brief is her “Final 2.0” brief
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`“[r]evised with legal citations & missing sections.” Docket No. 150 (Opp’n). The corrected
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`opposition was not timely filed (about seven hours late).
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`Because Ms. Gjovik filed an untimely and oversized opposition, the Court could well
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`strike her brief – notwithstanding her pro se status. See, e.g., Swanson v. U.S. Forest Serv., 87
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`F.3d 339, 343, 345 (9th Cir. 1996) (holding that district court did not abuse its discretion in
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`striking portions of a brief that violated page limits). Taking this course of action would not be
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`unwarranted given that Ms. Gjovik has, in the past, on more than one occasion failed to comply
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`with deadlines and/or page limits.
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`Although the Court could fairly take that course of action, it shall not at this time; instead,
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`it shall, in the interest of justice, consider the corrected opposition and address Apple’s motion to
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`dismiss on the merits. Ms. Gjovik is forewarned, however, that, in the future, she must comply
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`with all deadlines, page limits, and/or other rules or orders, just as any litigant before this Court
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`Case 3:23-cv-04597-EMC Document 179 Filed 02/27/25 Page 5 of 34
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`must. The Court has already given Ms. Gjovik substantial leeway in the past and will no longer
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`excuse her compliance with the rules.
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`C.
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`Environmental Safety Claims
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`Ms. Gjovik has two environmental safety claims: (1) private nuisance (Count 5) and (2)
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`intentional infliction of emotional distress (“IIED”) based on “fear of cancer” (Count 6). Both
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`claims are based on an Apple semiconductor fabrication factory (located at 3250 Scott Blvd.)
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`allegedly releasing toxic chemicals into the environment which affected Ms. Gjovik because she
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`lived in an apartment nearby (located at 3255 Scott Blvd.). The factory is also known as the
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`ARIA factory.
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`In its most recent order, the Court held that the environmental safety claims were time
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`barred based on the face of the then-operative pleading, but it gave Ms. Gjovik leave to amend to
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`try to plead around the statute-of-limitations bar (specifically, through the delayed discovery rule).
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`The Court also held that, with respect to the IIED claim, Ms. Gjovik failed to state a claim for
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`relief; however, it gave her leave to amend. See Docket No. 112 (Order at 31) (indicating that Ms.
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`Gjovik would have to “allege that Apple directed its conduct at her specifically or with knowledge
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`of her presence specifically, and that its conduct was calculated to cause her severe emotional
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`distress”).
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`1.
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`Statute of Limitations
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`In its motion to dismiss, Apple renews its argument that the environmental safety claims
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`are time barred. Although the statute of limitations is an affirmative defense, it can be raised in a
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`12(b)(6) motion if it is apparent from the face of the complaint. See Rivera v. Peri & Sons Farms,
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`Inc., 735 F.3d 892, 902 (9th Cir. 2013).
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`As alleged in the 5AC, Ms. Gjovik sustained injury as a result of the ARIA factory while
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`she lived in the nearby apartment from February 2020 through October 2020. See 5AC ¶ 12. Ms.
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`Gjovik, however, did not file this lawsuit until September 2023, i.e., some three years later. This
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`is, on its face, problematic given that Ms. Gjovik’s claims for nuisance and IIED have a two-year
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`statute of limitations. See Cal. Code Civ. Proc. § 340.8(a) (“In any civil action for injury or illness
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`based upon exposure to a hazardous material or toxic substance, the time for commencement of
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`the action shall be no later than either two years from the date of injury, or two years after the
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`plaintiff becomes aware of, or reasonably should have become aware of, (1) an injury, (2) the
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`physical cause of the injury, and (3) sufficient facts to put a reasonable person on inquiry notice
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`that the injury was caused or contributed to by the wrongful act of another, whichever occurs
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`later.”).
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`Ms. Gjovik argues, however, that she is not time barred under § 340.8 because she did not
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`become aware of, and reasonably should not have become aware of, the cause of her injury – i.e.,
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`the ARIA factory – until February 2023. See 5AC ¶ 269 (asserting that the statute of limitations
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`“should be tolled until February 2023, the date when Plaintiff first discovered the nature of
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`Apple’s hazardous activities at 3250 Scott”). As alleged in the 5AC, February 2023 was when
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`Ms. Gjovik discovered that the Apple factory had “permits for semiconductor fabrication
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`equipment” for the ARIA factory. 5AC ¶ 259. Ms. Gjovik obtained these documents “after filing
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`multiple Public Records Act requests about various Apple buildings.” 5AC ¶ 259; see also RJN,
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`Ex. 2 (tweet from Ms. Gjovik, dated 2/21/2023) (stating that “I just received Public Records
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`results on the 3250 building permits & its [sic] a doozy[;] Apple registered the building in 2015
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`for haz waste storage & generation”).
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`Ms. Gjovik does not dispute that, well before February 2023, she knew Apple had a
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`factory close to her apartment. In fact, she admits that she knew the factory “was registered as a
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`hazardous waste generator,” 5AC ¶ 262, and that she voiced concern about the factory to Apple’s
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`Environmental Health & Safety and Legal Departments in 2020 and 2021. See 5AC ¶ 265.3
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`However, Ms. Gjovik maintains that, until she knew specifically that semiconductor fabrication
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`was occurring at the factory, she did not know and should not have reasonably known that her
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`injuries were caused by the factory as opposed to a different cause. See, e.g., 5AC ¶¶ 259, 261
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`(alleging that “knowledge of the semiconductor operations at the facility” was critical to Ms.
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`Gjovik “connect[ing] Apple’s hazardous manufacturing activities at 3250 Scott to her 2020
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`3 See also 5AC ¶ 25 (indicating that, in or about December 2020, “Plaintiff . . . notified Apple
`EH&S and environmental legal about what occurred to her near 3250 Scott”); 5AC ¶ 36 (alleging
`that, in or about September 2020, “[t]he plaintiff notified several Apple executives of her findings
`and activities” with respect to air monitor testing in her apartment next to the Apple factory).
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`illness”); 5AC ¶ 268 (alleging that, “[u]pon learning of the semiconductor fabrication at 3250
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`Scott, Plaintiff immediately identified the facility’s toxic emissions as the plausible cause of her
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`severe health problems”). According to Ms. Gjovik, the fact that she knew the factory was a
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`hazardous waste generator is not important because (1) Apple did not warn her that the factory
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`posed a danger after she raised concerns about it to EH&S and Legal, see 5AC ¶ 265; (2)
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`“[r]ecords on the EPA’s Toxics Release Inventory (TRI) and other federal and state databases
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`showed no significant toxic chemical releases from 3250 Scott,” 5AC ¶ 261; and (3) “[t]he
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`region’s history of industrial activity and the current presence of research and development
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`facilities that generate hazardous waste did not raise any alarms.” 5AC ¶ 262. Ms. Gjovik also
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`claims that Apple engaged in action that concealed semiconductor fabrication was occurring at the
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`factory. See, e.g., 5AC ¶ 263 (alleging that Apple pressured government agencies such as “the fire
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`department and EPA to avoid documenting or discussing its activities”); 5AC ¶ 267 (alleging that
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`Apple used “misleading permits and improper classifications that obscured the facility’s true
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`nature”). Finally, she emphasizes that government agencies “investigated the area and found no
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`records that would indicate a direct link to her health issues,” 5AC ¶ 263 – i.e., if the government
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`found no problem, she could not have reasonably been expected to find one either.
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`In response, Apple argues that Ms. Gjovik’s attempt to rely on the delayed discovery rule
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`fails because, at bottom, the information she discovered in February 2023 – in particular, the
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`permits for the ARIA factory showing that it engaged in semiconductor fabrication – was publicly
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`available at the time she was injured in 2020, and Ms. Gjovik has failed to show why she could
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`not have found that publicly available information until February 2023.
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`2.
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`Delayed Discovery Rule
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`Before delving into the merits of the parties’ dispute, the Court first addresses Ms.
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`Gjovik’s contention that the Court is applying the wrong discovery rule. According to Ms.
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`Gjovik, although she has asserted two state law claims, federal law on delayed discovery applies.
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`Ms. Gjovik further argues that, under federal law on delayed discovery, the appropriate standard is
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`not what she knew or should have known but rather what a reasonable person in her position
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`knew or should have known (i.e., an objective inquiry, not a subjective one).
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`Ms. Gjovik is correct that federal law on delayed discovery applies. In O’Connor v.
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`Boeing North America, 311 F.3d 1139 (9th Cir. 2002), the plaintiffs sued two companies alleging
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`that substances released from their facilities caused the plaintiffs to suffer illnesses. The plaintiffs
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`brought tort claims under California law. California law had a limitations period of one year. The
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`issue was whether the delayed discovery rule allowed the plaintiffs to get around the time bar.
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`The Ninth Circuit held that a CERCLA provision, 42 U.S.C. § 9658, applied to the claims
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`even though the plaintiffs were asserting only state law claims “without an accompanying
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`CERCLA action.” Id. at 1149. Section 9658 provided:
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`In the case of any action brought under State law for personal injury
`. . . which [is] caused or contributed to by exposure to any hazardous
`substance, or pollutant or contaminant, released into the
`environment from a facility, if the applicable limitations period for
`such action (as specified in the State statute of limitations or under
`common law) provides a commencement date which is earlier than
`the federally required commencement date, such period shall
`commence at the federally required commencement date in lieu of
`the date specified in such State statute.
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`Id. at 1146 (quoting § 9658(a)(1); emphasis added). Thus, in the case under consideration, “§
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`9658 preempts California’s commencement date if that date is earlier than the federally required
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`commencement date.”4 Id.; see also id. at 1143-44 (noting that § 9658 “retains the state statute of
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`limitations[] and establishes a federal standard that governs when delayed discovery of a
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`plaintiff’s claims will toll the statute of limitations[;] [t]his federal standard trumps a less generous
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`state rule that would start the limitations period earlier”).
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`The Ninth Circuit went on to evaluate whether the accrual date was different under state
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`and federal law. “Under both federal and California law, the discovery rule provides that a
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`limitations period does not commence until a plaintiff discovers, or reasonably could have
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`discovered his claim,” i.e., “through investigation of sources open to her.” Id. at 1147. But under
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`California law, “a plaintiff discovers a claim when the plaintiff ‘suspects or should suspect that her
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`injury was caused by wrongdoing.’” Id. In contrast, federal law “requires more than suspicion
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`4 In its reply brief, Apple argues that O’Connor is not applicable because Ms. Gjovik’s “claim is
`for nuisance and is not brought under CERCLA.” Reply at 4 n.4. However, that argument does
`not square with what the Ninth Circuit held in O’Connor.
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`alone”; discovery turns on when the plaintiff “knows or reasonably should have known of that
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`cause.” Id. at 1148. Because federal law on delayed discovery was more generous to the plaintiff,
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`the Ninth Circuit held that federal law, and not state law, applied.
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`Based on O’Connor, Ms. Gjovik is correct that the Court should not have relied on state
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`law for delayed discovery in its prior order. See, e.g., Docket No. 112 (Order at 27) (noting that,
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`under California’s delayed discovery rule, “‘a cause of action accrues . . . when the plaintiff has
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`reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a
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`reasonable investigation at that time would not have revealed a factual basis for that particular
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`cause of action[;] [i]n that case, the statute of limitations . . . will be tolled until such time as a
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`reasonable investigation would have revealed its factual basis’”). To be clear, though, neither
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`party raised § 9658 at the time of the prior hearing.
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`Ms. Gjovik also argues that, under federal law on delayed discovery, the issue is “not
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`whether Plaintiff herself should have discovered the source of the emissions but rather whether a
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`reasonable person in Plaintiff’s position would have been able to identify the source.” Opp’n
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`at13; see also Opp’n at 13 (“Plaintiff’s claims in this case are not simply based on subjective
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`awareness; rather, they are grounded in the objective standard of a reasonable person.”). Here,
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`Ms. Gjovik is not entirely correct. As noted above, the delayed discovery rule under federal law
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`turns on when the plaintiff “knows or reasonably should have known” the existence and cause of
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`her injury, O’Connor, 311 F.3d at 1148 (emphasis added). In O’Connor, the Ninth Circuit stated
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`that
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`[a] two-part analysis determines whether Plaintiffs reasonably
`should have known of their claim. . . . First, we consider whether a
`reasonable person in Plaintiffs' situation would have been expected
`to inquire about the cause of his or her injury. Second, if the
`plaintiff was on inquiry notice, "we must next determine whether [an
`inquiry] would have disclosed the nature and cause of plaintiff's
`injury so as to put him on notice of his claim." The plaintiff will be
`charged with knowledge of facts that he would have discovered
`through inquiry.
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`O’Connor, 311 F.3d at 1150. While the first inquiry evaluates whether a reasonable person in a
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`plaintiff’s situation would have been expected to inquire about the cause of his or her injury, the
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`second inquiry does not use the same benchmark. “The second prong of the test for application of
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`Case 3:23-cv-04597-EMC Document 179 Filed 02/27/25 Page 10 of 34
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`the discovery rule is whether a reasonable inquiry would have put [a] Plaintiff[] on notice of their
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`claim.” Id. at 1155.
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`3.
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`“Reasonably Should Have Known”
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`Because Ms. Gjovik has claimed that she did not actually know the cause of her injuries
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`until February 2023, the critical question in the instant case is when she reasonably should have
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`known of that cause. As noted above, O’Connor establishes a two-part analysis.
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`In the instant case, Ms. Gjovik does not make any argument that, at the first prong, a
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`reasonable person in her situation would not have been expected to inquire about the cause of her
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`injuries. This is likely because Ms. Gjovik did, at or about the time she was suffering her injuries,
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`start to make inquiries about the cause thereof. Cf. Wood v. Santa Barbara Chamber of
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`Commerce, Inc., 705 F.2d 1515, 1521 (9th Cir. 1983) (noting that plaintiff suspected copyright
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`infringement and this suspicion “placed upon [him] a duty to investigate further into possible
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`infringements of his copyright”); see also Oracle Am., Inc. v. Hewlett Packard Enter. Co., 971
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`F.3d 1042, 1048 n.5 (9th Cir. 2020) (stating that O’Connor did not discuss Wood, which “provides
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`that suspicion of infringement triggers a duty to investigate”). Thus, the question here is whether,
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`at the second prong, “a reasonable inquiry would have put [Ms. Gjovik] on notice of [her] claim.”
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`Id. at 1155; see also id. at 1155-56 (noting that this step “focuses on whether, if the Plaintiffs had
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`inquired about the cause of their illnesses, the result of that inquiry would have provided Plaintiffs
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`with knowledge of the connection between the injury and its cause”). This inquiry does bear
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`similarity to the California delayed discovery rule. See Docket No. 112 (Order at 27) (noting that,
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`under California’s delayed discovery rule, a plaintiff must “‘plead[] and prove[] that a reasonable
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`investigation at that time would not have revealed a factual basis for that particular cause of
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`action[;] [i]n that case, the statute of limitations . . . will be tolled until such time as a reasonable
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`investigation would have revealed its factual basis’”).
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`4.
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`Permits and Other Publicly Available Documents
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`As to whether a reasonable inquiry would have put Ms. Gjovik on notice of her claims, the
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`Court must bear in mind what Ms. Gjovik has already alleged in her 5AC. According to Ms.
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`Gjovik, what actually put her on notice was the discovery (in February 2023) of permits for the
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`Case 3:23-cv-04597-EMC Document 179 Filed 02/27/25 Page 11 of 34
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`Apple factory which showed it was engaged in semiconductor fabrication. Thus, Apple makes a
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`fair contention that, if a reasonable inquiry would have led Ms. Gjovik to the permits before
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`February 2023, then her claim she could not have reasonably known about the semiconductor
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`fabrication until February 2023 is not tenable.
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`Apple has asked the Court to take judicial notice of the fact that the permits for the ARIA
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`factory are publicly available on the website for the City of Santa Clara (https://aca-
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`prod.accela.com/santaclara/Default.aspx (last visited 1/28/2025)).
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`See RJN, Ex. 4B (ECF Page 23) (website results search, showing permits from December 2017
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`that refer to semiconductor fabrication). Notably, these are the same permits that Ms. Gjovik
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`tweeted about in February 2023 when she announced her discovery of the cause of her injuries.
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`See RJN, Ex. 1 (ECF Pages 2-3) (tweet, dated 2/21/2023). Apple has also asked the Court to take
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`judicial notice of “historical pages that show the publicly available City of Santa Clara permit
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`website as it existed back in 2020.” RJN at 6 (noting that “Exhibits 5A-5B show what the City of
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`Santa Clara’s permit center website looked like back in 2020, while Exhibits 4A-4G show what
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`the City’s permit center website looks like presently”; the historical “‘Smart Permit Search’ link
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`[was] preserved by the Internet Archive WayBack Machine on November 11, 2020”).
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`In addition to the permits, Apple points out that Ms. Gjovik mentions in the 5AC a “2019
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`gas leak report” that “confirmed [her] belief that Apple’s activities at the facility caused her
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`illness.” 5AC ¶ 260. That gas leak report “mentioned phosphine – an indicator of Apple’s toxic
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`emissions at 3250 Scott.” 5AC ¶ 260. The gas leak report appears to have come from Santa Clara
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`City Fire Department records for the factory. See 5AC ¶ 23 (alleging that the records included
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`“chemical spill reports” from 2019-2022 and reflected “eight confirmed leaks/spills: leaks of
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`phosphine and silane on June 1 2019; a phosphine leak on October 21 2019; a tetraethyl
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`orthosilicate leak on July 17 2020; a significant phosphine leak on April 30 2021; a 5% fluorine
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`gas leak on April 18 2022, a hexafluorobutadiene leak on May 29 2022, and leaks of two unnamed
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`toxic gases on September 20 2022 and December 21 2022”). Apple asks the Court to take judicial
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`notice that the gas leak report is publicly available through the Santa Clara Fire Department
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`website. See RJN, Ex. 3 (incident report, dated 6/2019) (ECF Page 15) (“E99 and H99 responded
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`to a gas leak . . . . ERT was on scene . . . . The alarm was for .5 parts per billion that was going
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`through their scrubbers. The chemicals were Silane and Phosephine [sic].”). The face of the
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`document also indicates that the report was publicly accessible as of 2020; the document reflects
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`an “upload date” of February 18, 2020. See RJN, Ex. 3 (ECF Page 11).
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`Finally, Apple notes that, in the 5AC, Ms. Gjovik refers to allegedly “difficult-to-find
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`agency filings” – specifically, that Apple made with the Bay Area Air Quality Management Board.
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`According to Ms. Gjovik, the filings reflect that, “in at least 2019-2021, 3250 Scott exhausted
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`reportable amounts of mercury, arsenic, carbon monoxide, and formaldehyde into the ambient air
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`around the factory.” 5AC ¶ 25. Apple asks the Court to take judicial notice of the fact that this
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`information was publicly available on the Bay Area Air Quality Management District
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`(“BAAQMD” ) website – specifically, “the BAAQMD 2018 emissions data was publicly available
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`online [back] in August 2021, and shows that 3250 Scott emitted the same substances Plaintiff
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`alleges she saw in the 2019-2021 permits that allegedly put her on notice of potential exposure.”
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`Mot. at 13; see also RJN, Ex. 6A (BAAMQ website) (ECF Page 46) (reflecting that “Toxic Air
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`Containment Inventory for 2018 – Sorted by County, by City, and by Facility Name” was posted
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`on 8/24/2021); RJN, Ex. B (Toxic Air Containment Inventory for 2018) (ECF Pages 52, 170)
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`(reflecting that 3250 Scott produced certain levels of “Diesel Engine Exhaust Particulate Matter”
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`which includes, e.g., formaldehyde, arsenic, and mercury).
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`In her opposition brief, Ms. Gjovik states she opposes Apple’s request for judicial notice,
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`but she did not provide any argument as to why. Nor did she file a brief in opposition to the
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`request for judicial notice concurrently with her opposition to the motion to dismiss. Instead, Ms.
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`Gjovik did not file an opposition to the request for judicial notice until some ten days after the
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`brief was due. See Docket No. 154-2 (opposition to RJN). While the Court, in the interest of
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`justice, is considering Ms. Gjovik’s substantive opposition to the motion to dismiss in spite of its
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`Case 3:23-cv-04597-EMC Document 179 Filed 02/27/25 Page 13 of 34
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`untimeliness, it will not consider Ms. Gjovik’s untimely opposition to the request for judicial
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`notice. There is absolutely no reason why this opposition could not have been filed at the time she
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`filed her opposition to the