Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 1 of 14
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MATTHEW PRICE,
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`Plaintiff,
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`v.
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`APPLE, INC.,
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`Case No. 21-cv-02846-HSG
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`ORDER GRANTING MOTION TO
`DISMISS
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`Re: Dkt. No. 32
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`Defendant.
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`Plaintiff Matthew Price brings this putative class action lawsuit challenging Defendant
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`Apple, Inc.’s alleged policy of terminating the Apple ID accounts of its users who seek credit or
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`debit card payment returns for app purchases that do not work. Plaintiff asserts eight counts of
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`fraud, tort, and unfair competition violations based on Apple’s policy. Apple now moves to
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`dismiss all eight counts, and the motion is fully briefed.1 See Dkt. No. 32 (“Mot.”), 34 (“Opp.”),
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`43 (“Reply”). For the reasons below, the Court GRANTS the motion.
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`I.
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`BACKGROUND
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`For purposes of deciding the motion, the Court accepts the following as true:
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`Apple is a California corporation that designs and sells smartphones, personal computers,
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`and tablets. These devices run apps and other services for customers to use. To purchase and
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`access the apps, Apple requires its customers to have an Apple ID account and agree to Apple’s
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`terms and conditions (the “Apple Terms”). The Apple Terms contain a termination of services
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`section that reads:
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`1 The Court finds the motion appropriate for disposition without oral argument and deems the
`motion submitted. See Civil L.R. 7-1(b).
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 2 of 14
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`TERMINATION AND SUSPENSION OF SERVICES
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`If you fail, or Apple suspects that you have failed, to comply with any
`of the provisions of this Agreement, Apple may, without notice to
`you: (i) terminate this Agreement and/or your Apple ID, and you will
`remain liable for all amounts due under your Apple ID up to and
`including the date of termination; and/or (ii) terminate your license to
`the software; and/or (iii) preclude your access to the Services.
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`Apple further reserves the right to modify, suspend, or discontinue the
`Services (or any part or Content thereof) at any time with or without
`notice to you, and Apple will not be liable to you or to any third party
`should it exercise such rights.
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`Dkt. No. 31-1 (Ex. A to First Amended Complaint) at 12.
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`Plaintiff has had an Apple ID since 2015. Using his Apple ID, Plaintiff has purchased over
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`$24,000 in apps and services to use on his Apple devices. After some of the apps did not work,
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`Plaintiff complained to Apple. In response, Apple advised him to contact the app developer.
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`When Plaintiff contacted the app developer, the app developer told Plaintiff that it could not return
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`his money or otherwise help him because Plaintiff’s purchases were made with Apple. When
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`Plaintiff went back to Apple with his complaints, Apple advised Plaintiff to institute
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`“chargebacks” – requesting payment returns from the bank of the credit or debit card associated
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`with his Apple ID – for those purchases. Following Apple’s advice, Plaintiff sought chargebacks
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`for Apple ID purchases of apps that did not work.
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`In October 2020, after Plaintiff processed his chargebacks, Apple terminated Plaintiff’s
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`Apple ID based on its determination that Plaintiff had breached the Apple Terms. As a result,
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`Plaintiff was no longer able to use his Apple ID or the $24,000 of app services he had purchased
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`using the Apple ID.
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`Plaintiff first filed this putative class action lawsuit against Apple in April 2021. Dkt. No.
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`1. Five months later, Plaintiff submitted an amended complaint, bringing the following claims:
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`(1) impermissible liquidated damages clause in violation of California Civil Code Section 1671;
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`(2) unconscionable contract provision in violation of the CLRA; (3) unconscionable liquidated
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`damages clause in violation of the UCL; (4) unfair business practice under the UCL; (5) fraudulent
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`business practice under the UCL; (6) conversion; (7) trespass to chattels; and (8) unjust
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`enrichment. Dkt. No. 31 (“Compl.”). Apple now moves to dismiss.
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 3 of 14
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`II.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 8(a) requires that a complaint contain “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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`defendant may move to dismiss a complaint for failing to state a claim upon which relief can be
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`granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the
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`complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.”
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`Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule
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`12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on
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`its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible
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`when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that
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`the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`In reviewing the plausibility of a complaint, courts “accept factual allegations in the
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`complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”
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`Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless,
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`courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of
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`fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir.
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`2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). The Court
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`also need not accept as true allegations that contradict matter properly subject to judicial notice or
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`allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988.
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`III. DISCUSSION
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`The Court begins its analysis by noting that Apple’s motion and reply brief repeatedly ask
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`the Court to draw inferences in its favor based on allegations not in the complaint. See Mot. at 9
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`(suggesting that “[i]t is far more plausible that [Plaintiff’s] Apple ID was terminated because of
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`his fraudulent activity and breaches of the Terms”); Reply at 8 (stating that Plaintiff “admit[ed] he
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`was terminated for misconduct”). These claims are inaccurate, and Plaintiff did not concede any
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`misconduct. The only relevant statement in the complaint simply says that “Apple determined
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`[Plaintiff] breached its terms and conditions.” Compl. ¶ 21.
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`“As a general rule, ‘a district court may not consider any material beyond the pleadings in
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 4 of 14
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`ruling on a Rule 12(b)(6) motion.’ Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)
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`(quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). There are two exceptions:
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`“material which is properly submitted as part of the complaint” and judicial notice of “matters of
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`public record.” Id. at 688-89 (citations omitted). The suggestion that Plaintiff’s Apple ID was
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`terminated based on admitted misconduct appears nowhere in the complaint, any exhibits, or any
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`judicially-noticeable material. The Court thus declines to consider Apple’s improper
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`characterizations at this stage and warns Apple not to overreach in this manner again in any
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`renewed motion to dismiss.
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`A.
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`Liquidated Damages (Claim 1)
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`Plaintiff’s first claim asserts that the Apple Terms’ termination clause is an unlawful
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`liquidated damages clause under California Civil Code Section 1671. Plaintiff contends that the
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`provision “provides a formula by which the amount is certain or readily ascertainable” – namely
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`the amount an Apple user spent using his Apple ID before termination. Compl. ¶¶ 55-56.
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`Section 1671 of the California Civil Code sets out that:
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`[a liquidated damages clause] is void except that the parties to such a
`contract may agree therein upon an amount which shall be presumed
`to be the amount of damage sustained by a breach thereof, when, from
`the nature of the case, it would be impracticable or extremely difficult
`to fix the actual damage.
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`Cal. Civ. Code § 1671(c)-(d). In other words, “liquidated damages” is “an amount of
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`compensation to be paid in the event of a breach of contract, the sum of which is fixed and certain
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`by agreement[.]” See Chodos v. W. Publ’g Co., 292 F.3d 992, 1002 (9th Cir. 2002) (holding
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`entitlement to 15% revenue not “liquidated debt” because “revenues to which that percentage
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`figure is to be applied cannot be calculated with reasonable certainty”); see also Bayol v. Zipcar,
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`Inc., 78 F. Supp. 3d 1252, 1256 (N.D. Cal. 2015) (“To be sufficiently fixed and certain to qualify
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`as ‘liquidated damages,’ a provision must either set the exact amount (i.e., a single number), or
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`provide some formula by which the amount is ‘certain or readily ascertainable.’” (quoting Chodos,
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`292 F.3d at 1002)).
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`Here, the formula Plaintiff asserts based on the challenged termination provision leads to
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`an amount that is neither certain nor “readily discernible at the time of breach.” Id. When Apple
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 5 of 14
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`terminates a user’s Apple ID under the termination provision, Plaintiff’s claimed formula leads to
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`damages equal to the value of the apps and services the user purchased and can no longer access –
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`in Plaintiff’s case, over $24,000. The exact amount thus necessarily varies from user to user: it
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`depends on when the Apple ID account was terminated, what the user purchased through his
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`Apple ID account, and what balance he had in his Apple ID account.2 Plaintiff’s “liquidated
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`damages” theory fails because the termination provision does not contain a fixed or readily
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`ascertainable sum as defined in Section 1671, meaning that it is not a liquidated damages
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`provision at all.
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`Accordingly, the Court grants Apple’s motion to dismiss as to Plaintiff’s first claim.
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`B.
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`Unconscionability (Claims 2 and 3)
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`Apple moves to dismiss Plaintiff’s second and third claims on the grounds that the
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`complaint fails to adequately plead unconscionability.
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`“Unconscionability is a question of law for the court.” Williams v. Tesla, Inc., No. 20-CV-
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`08208-HSG, 2021 WL 2531177, at *5 (N.D. Cal. June 21, 2021) (quoting Seifi v. Mercedes-Benz
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`USA, LLC, No. 12-CV-5493 TEH, 2013 WL 2285339, at *4 (N.D. Cal. May 23, 2013)). “Under
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`California law, an agreement is enforceable unless it is both procedurally and substantively
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`unconscionable. Procedural and substantive unconscionability need not be present in equal
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`amounts. The two are evaluated on a ‘sliding scale,’ which means that the more evidence of
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`procedural unconscionability there is, the less evidence of substantive unconscionability is needed
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`to render the agreement unenforceable, and vice versa.” Id. (citing Armendariz v. Foundation
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`Health Psychcare Svcs. Inc., 24 Cal. 4th 83, 114 (Cal. 2000)). “However, both forms of
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`unconscionability must be present in some amount ‘for a court to exercise its discretion to refuse
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`to enforce a contract or clause under the doctrine of unconscionability.’” Id. (quoting Stirlen v.
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`Supercuts, Inc., 51 Cal. App. 4th 1519, 1521 (Ct. App. 1997), as modified (Feb. 10, 1997)).
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`2 Plaintiff’s opposition brief offers two entirely different formulas for the purported “liquidated
`damages,” underscoring Apple’s contention that the claimed damages are not readily discernible.
`Opp. at 14-15 (suggesting damages amount is: (1) forfeiting the entire value of apps and services
`purchased with Apple ID and additional money remaining in Apple ID account; and (2) “all
`amounts due under Plaintiff’s Apple ID up to and including the date of termination”).
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 6 of 14
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`As Plaintiff points out, “take it or leave it” adhesion contracts like the Apple Terms can
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`implicate procedural unconscionability. See Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1260
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`(9th Cir. 2017) (“California courts have held that oppression [a focus of procedural
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`unconscionability] may be established by showing the contract was one of adhesion or by showing
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`from the ‘totality of the circumstances surrounding the negotiation and formation of the contract’
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`that it was oppressive.” (citation omitted)); see also Williams, 2021 WL 2531177, at *5
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`(“Procedural unconscionability exists when the contract reflects ‘inequality of bargaining power
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`which results in no real negotiation and ‘an absence of meaningful choice.’” (quoting Aron v. U-
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`Haul Co. of California, 143 Cal. App. 4th 796, 808 (Ct. App. 2006))). But adhesion contracts are
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`not categorically unenforceable. Sanchez v. Valencia Holding Co., LLC, 61 Cal. 4th 899, 915
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`(2015) (“[A] finding of procedural unconscionability does not mean that a contract will not be
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`enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they
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`are not manifestly unfair or one-sided.”). And while Plaintiff correctly points out that contracts
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`for nonessential recreational activities may be found procedurally unconscionable, Szetela v.
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`Discover Bank, 97 Cal. App. 4th 1094, 1100 (2002), Apple cites persuasive case law suggesting
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`that the nature of such contracts weighs against that finding. See In re iPhone Application Litig.,
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`No. 11-MD-02250-LHK, 2011 WL 4403963, at *8 (N.D. Cal. Sept. 20, 2011) (“[W]hen the
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`challenged term is in a contract concerning a nonessential recreational activity, the consumer
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`always has the option of simply forgoing the activity.” (citing Belton v. Comcast Cable Holdings,
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`LLC, 151 Cal. App. 4th 1224, 1245 (Cal. App. 1st Dist. 2007))); Pokrass v. The DirecTV Grp.,
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`Inc., No. EDCV 07-423-VAP, 2008 WL 2897084, at *7 (C.D. Cal. July 14, 2008) (“California
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`courts have consistently declined to find procedural unconscionability in contracts for nonessential
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`recreational activities.”).
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`Without determining the degree of procedural unconscionability, the Court concludes that
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`Plaintiff’s claim fails in any event because he has not alleged facts showing the Apple Terms were
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`substantively unconscionable. Williams, 2021 WL 2531177, at *5 (“Substantive
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`unconscionability ‘focuses on the actual terms of the agreement and evaluates whether they create
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`‘overly harsh’ or ‘one-sided’ results as to ‘shock the conscience.’” (quoting Aron, 143 Cal. App.
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 7 of 14
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`4th at 808)). Plaintiff’s explanation for why the Terms are substantively unconscionable – the
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`contract permits Apple to deny its customers access to Apple ID content without any relationship
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`to Apple’s incurred damages – does not suggest the Terms are overly harsh or so one-sided as to
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`shock the conscience.
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`Because Plaintiff’s substantive unconscionability argument fails, the Court dismisses
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`Plaintiff’s second and third claims. The Court urges Plaintiff to consider carefully whether he can
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`truthfully plead facts sufficient to plausibly meet the “shock the conscience” standard before
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`simply repeating this unconscionability argument in any amended complaint.
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`C.
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`UCL Violations (Claims 4 and 5)
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`“A business act or practice may violate the UCL if it is either ‘unlawful,’ ‘unfair,’ or
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`‘fraudulent.’ Each of these three adjectives captures ‘a separate and distinct theory of liability.’
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`Rubio v. Cap. One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010) (citing Kearns v. Ford Motor Co.,
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`567 F.3d 1120, 1127 (9th Cir. 2009)). Here, Plaintiff brings his fourth and fifth claims as UCL
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`violations under the “unfair” and “fraudulent” prongs, respectively.
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`i.
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`“Unfair Business Practice” (Claim 4)
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`“[T]he California Supreme Court has not established a definitive test to determine whether
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`a business practice is ‘unfair’ under the UCL. State and federal courts have recognized three
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`tests.” Smith v. LG Elecs. U.S.A., Inc., No. 13-CV-04361 PJH, 2014 WL 989742, at *9 (N.D. Cal.
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`Mar. 11, 2014) (internal citations omitted). The first test, the “tethering test,” “limits unfair
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`conduct to that which ‘offends an established public policy’ and is ‘tethered to specific
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`constitutional, statutory, or regulatory provisions.’” Id. (citing Davis v. Ford Motor Credit Co.,
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`179 Cal. App. 4th 581, 593-97 (2009)). The other test – the “balancing test” – “weigh[s] the
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`utility of the defendant’s conduct against the gravity of the harm to the alleged victim.”
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`Williamson v. McAfee, Inc., No. 5:14-CV-00158-EJD, 2014 WL 4220824, at *6 (N.D. Cal. Aug.
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`22, 2014) (citing Bardin v. DaimlerChrysler Corp., 136 Cal. App. 4th 1255, 1268 (2006)). Other
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`courts, like Smith, split the balancing test into two separate tests. The first balancing test
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`“evaluates whether the business practice is ‘immoral, unethical, oppressive, unscrupulous or
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`substantially injurious to consumers’ and ‘requires the court to weigh the utility of the defendant’s
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`conduct against the gravity of the harm to the alleged victim.’” 2014 WL 989742, at *9 (citing
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`Davis, 179 Cal. App. 4th at 594-95). The second balancing test “requires that ‘the consumer
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`injury . . . be substantial;’ that ‘the injury . . . not be outweighed by any countervailing benefits to
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`consumers or competition;’ and that the injury be one ‘that consumers themselves could not
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`reasonably have avoided.’” Id. (citing Davis, 179 Cal. App. 4th at 597). The Ninth Circuit has
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`not resolved whether federal district courts should apply a balancing or tethering test to the UCL’s
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`unfair prong; “instead, it approves the use of either test until the California Supreme Court issues
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`guidance.” Id. (citing Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 735 (9th Cir. 2007)).
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`Plaintiff attempts to invoke all three tests – the tethering test and the two balancing tests.
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`However, under any test, his allegations fail to plead enough “factual content that allows the court
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`to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
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`556 U.S. at 678.
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` Under the tethering test, Plaintiff alleges that Apple’s termination of its users’ Apple ID
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`accounts constitutes “unfair business practice” under the UCL because the governing termination
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`provision is inconsistent with statutes regarding (1) liquidated damages and (2) unconscionable
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`provisions. But this claim relies on the policy and spirit of statutes underlying Plaintiff’s first
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`through third claims, which the Court dismissed for being insufficiently pled, supra Sections III.A,
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`B. Because those claims have been dismissed, Plaintiff “cannot properly base [his] unfair prong
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`claim on them.” See Williamson, 2014 WL 4220824, at *7 (dismissing tethering test unfair prong
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`claim where it was tethered to claims that were dismissed).
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`Under the two balancing tests, Plaintiff asserts that “Apple’s acts and practices are unfair
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`in that . . . they are immoral, unethical, oppressive, unscrupulous, and substantially injurious to
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`consumers” and the utility of Apple’s termination of its users’ Apple ID accounts is outweighed
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`by the gravity of the harm to its users. Compl. ¶¶ 78, 94. Further, he asserts that “the inclusion of
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`the subject clause in [the Apple Terms] and Apple’s enforcement of the same causes substantial
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`harm that is not outweighed by countervailing benefits to consumers or competition, and its
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`customers could not reasonably have avoided the harm.” Id. ¶ 99. But these allegations simply
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`parrot the legal standard for “unfair business practice” under both balancing tests. Davis, 179 Cal.
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`App. 4th at 595 (“an ‘unfair’ business practice occurs when . . . ‘the practice is immoral, unethical,
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`oppressive, unscrupulous or substantially injurious to consumers’”). They do not compare the
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`harm to consumers against the utility of Apple’s conduct. See Williamson, 2014 WL 4220824, at
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`*7 (dismissing unfair UCL claim where “Plaintiff [did not] include[] allegations that go towards
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`comparing the harm to consumers against the utility of Defendant’s conduct”). And they do not
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`support the inference that Apple’s termination of its customers’ Apple IDs when it identifies a
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`failure to comply with the Apple Terms is an “immoral, unethical, oppressive, unscrupulous, and
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`substantially injurious” practice. Id. (dismissing unfair UCL claim where Plaintiff had not “not
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`provided sufficient factual allegations to plausibly and plainly allege that those practices are
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`‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers’”).
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`Accordingly, the Court grants Apple’s motion to dismiss as to Plaintiff’s UCL “unfairness”
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`claim.
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`ii.
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`“Fraudulent Business Practice” (Claim 5)
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`Plaintiff’s fifth claim alleges that Apple’s termination of its users’ Apple ID accounts was
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`a “fraudulent business practice” in violation of UCL. Plaintiff asserts that he has adequately pled
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`a claim under the “fraudulent” prong of the UCL where the complaint pleads that Apple requires
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`its users to enter into the adhesion contract and enforces the Apple Terms to terminate users’
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`Apple ID accounts. Compl. ¶ 107.
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`Plaintiff urges the Court to apply a pleading standard more liberal than the heightened
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`pleading requirements of Rule 9(b) because Plaintiff asserts a fraudulent omission under
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`California consumer protection statutes. Opp. at 10. But none of the cases that Plaintiff cites in
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`support of that proposed standard require departing from the Ninth Circuit’s rule that UCL claims
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`alleging fraudulent conduct must meet the heightened pleading requirements of Rule 9(b). Smith,
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`2014 WL 989742, at *11 (applying heightened 9(b) pleading requirement to UCL fraud claim
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`(citing Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003))); see also Kearns,
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`567 F.3d at 1124-25 (“Averments of fraud must be accompanied by the who, what, when, where,
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`and how of the misconduct charged.”).
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`And even under the more liberal pleading standard proposed, Plaintiff’s UCL fraud claim
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 10 of 14
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`fails because Plaintiff does not allege that Apple made any misrepresentations or had knowledge
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`of the falsity of the alleged misrepresentations. See Kearns, 567 F.3d at 1126 (“The elements of a
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`cause of action for fraud in California are: ‘(a) misrepresentation (false representation,
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`concealment, or nondisclosure ); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e.,
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`to induce reliance; (d) justifiable reliance; and (e) resulting damage.’”). Instead, the complaint
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`merely recycles the same allegation that Apple used adhesion contracts and terminated its users’
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`Apple ID accounts under the Apple Terms. Plaintiff tries to rescue his claim by pointing to
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`allegations elsewhere in the complaint that Plaintiff and the putative class members would not
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`have entered into a contract with Apple or created an Apple ID “if they had known about
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`Defendant’s ‘wrongful, illegal, and unconscionable conduct.” Opp. at 11. But those allegations
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`are not a substitute for adequately pleading the basic required elements.
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`Accordingly, the Court grants Apple’s motion to dismiss as to Plaintiff’s UCL fraud claim.
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`D.
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`Conversion (Claim 6) and Trespass to Chattels (Claim 7)
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`Plaintiff’s sixth claim for conversion asserts that Apple’s termination of Plaintiff’s Apple
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`ID account constituted an unlawful and intentional interference with his ownership interest in apps
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`and services purchased and accessible only through his Apple ID. Plaintiff’s seventh claim for
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`trespass to chattels asserts that Apple’s termination of his Apple ID account prevents Plaintiff’s
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`use of purchased apps and services and significantly impairs the function of his Apple devices.
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`“To establish conversion, a plaintiff must show (1) his ownership of or right to possess the
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`property at the time of the conversion, (2) that the defendant disposed of the plaintiff’s property
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`rights or converted the property by a wrongful act, and (3) damages.” Bank of New York v.
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`Fremont Gen. Corp., 523 F.3d 902, 914 (9th Cir. 2008) (citing Messerall v. Fulwider, 199 Cal.
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`App. 3d 1324, 1329 (1988)). As for trespass to chattels, that claim “lies where an intentional
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`interference with the possession of personal property has proximately caused injury.” hiQ Labs,
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`Inc. v. LinkedIn Corp., No. 17-CV-03301-EMC, 2021 WL 1531172, at *9 (N.D. Cal. Apr. 19,
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`2021) (quoting Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1350-51 (2003)).
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`Apple moves to dismiss Plaintiff’s conversion and trespass to chattels claims on the
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`grounds that Plaintiff (1) consented to Apple’s conduct; and (2) does not plausibly allege
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 11 of 14
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`interference with his Apple devices.
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`“A plaintiff in a conversion action must . . . prove that it did not consent to the defendant’s
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`exercise of dominion.” Bank of New York v. Fremont Gen. Corp., 523 F.3d 902, 914 (9th Cir.
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`2008). Apple argues that because Plaintiff consented to the Apple Terms – which permit the
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`termination of an Apple ID account in the event of breach, his conversion and trespass claims fail.
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`Plaintiff responds that he did not consent to the taking of his ownership interest in purchased apps
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`accessible only through his Apple ID because that action was not described in the Apple Terms.
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`But while Plaintiff argues he did not consent to the taking, Plaintiff concedes that he “accepted
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`Defendant’s Terms including the Termination Provision,” Opp. at 18, which gives Apple the right
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`to terminate a user’s Apple ID account if it suspects a user has “failed . . . to comply with any of
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`the provisions of” the Apple Terms. Dkt. No. 31-1 (Ex. A to First Amended Complaint) at 12. In
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`other words, Plaintiff knew that he would lose access to his purchased apps and services if Apple
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`determined (or even suspected) that he failed to comply with the Apple Terms. This forecloses his
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`conversion claim.
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`Likewise, Plaintiff’s consent dooms his trespass claim. See Miller v. Nat’l Broad. Co., 187
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`Cal. App. 3d 1463, 1480 (1986) (“The essence of the cause of action for trespass is an
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`‘unauthorized entry’ onto the land of another.” (citations omitted)). Again, because Plaintiff was
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`“on notice of [Apple’s] ability to interfere with his [purchased apps and services],” the Court finds
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`that Apple did not act without his authorization.3 Parziale v. HP, Inc, No. 5:19-CV-05363-EJD,
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`2020 WL 5798274, at *7 (N.D. Cal. Sept. 29, 2020) (dismissing digital trespass claim where
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`plaintiff was on notice that firmware update could cause harm by preventing printers from
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`functioning with certain ink cartridges).
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`Accordingly, the Court grants Apple’s motion to dismiss Plaintiff’s conversion and
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`trespass to chattel claims.
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`3 Apple also seeks to dismiss Plaintiffs’ conversion and trespass to chattel claims on the grounds
`that Plaintiff does not allege any facts supporting the inference that terminating Plaintiff’s Apple
`ID “harmed the functioning” of Plaintiff’s Apple devices. The Court need not reach this issue
`because the fact that Plaintiff consented to the Apple Terms is dispositive of Plaintiff’s conversion
`and trespass to chattel claims.
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`Case 4:21-cv-02846-HSG Document 52 Filed 04/06/22 Page 12 of 14
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`E.
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`Unjust Enrichment (Claim 8)
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`“[A] quasi-contract action for unjust enrichment does not lie where, as here, express
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`binding agreements exist and define the parties’ rights.” Mosier v. Stonefield Josephson, Inc., 815
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`F.3d 1161, 1172 (9th Cir. 2016) (quoting Cal. Med. Ass’n, Inc. v. Aetna U.S. Healthcare of Cal.,
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`Inc., 94 Cal. App. 4th 151, 172 (2001)); see also Turnier v. Bed Bath & Beyond Inc., 517 F. Supp.
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`3d 1132, 1141 (S.D. Cal. 2021) (dismissing unjust enrichment claim where “it appears there was
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`an express contract related to the conduct at issue”).
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`Plaintiff’s eighth claim for unjust enrichment asserts that Apple unjustly enriched itself by
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`retaining its users’ payments after terminating their Apple ID accounts under the Apple Terms.
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`However, Plaintiff’s claim is precluded because an actual, express agreement – the Apple Terms –
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`relates to the conduct at issue. Compl. ¶ 130 (alleging Apple’s conduct “requiring Plaintiff and
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`the class to enter into contracts of adhesion” and “enforcing the contractual provisions that provide
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`for the termination of its customers’ Apple IDs”). Plaintiff does not contest this point.
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`Accordingly, the Court grants Apple’s motion to dismiss as to Plaintiff’s unjust enrichment
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`claim.
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`F.
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`Equitable Relief
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`“[T]here is no right to equitable relief or an equitable remedy when there is an adequate
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`remedy at law.” Duttweiler v. Triumph Motorcycles (Am.) Ltd., No. 14-CV-04809-HSG, 2015
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`WL 4941780, at *8 (N.D. Cal. Aug. 19, 2015) (citing Prudential Home Mortgage Company v.
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`Superior Court, 66 Cal. App. 4th 1236, 1249 (1998)); Sonner v. Premier Nutrition Corp., 971 F.3d
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`834, 844 (9th Cir. 2020) (plaintiff “must establish that she lacks an adequate remedy at law before
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`securing equitable restitution for past harm under the UCL and CLRA”); see also Mort v. United
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`States, 86 F.3d 890, 892 (9th Cir. 1996) (“It is a basic doctrine of equity jurisprudence that courts
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`of equity should not act . . . when the moving party has an adequate remedy at law.”).
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`Here, because Plaintiff seeks compensation under the UCL and CLRA for the exact same
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`conduct that forms the basis of his equitable relief claims, he has an adequate remedy at law.
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`Thus, Plaintiff’s UCL and CLRA equitable relief claims must be dismissed because the complaint
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`does not allege that legal remedies are inadequate.
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`Case 4:2