Case 4:21-cv-02846-HSG Document 56 Filed 05/31/22 Page 1 of 19
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`ISABELLE L. ORD (Bar No. 198224)
`isabelle.ord@dlapiper.com
`JEANETTE T. BARZELAY (Bar No. 261780)
`jeanette.barzelay@dlapiper.com
`ALEXANDER E. WOLF (Bar No. 299775)
`alexander.wolf@dlapiper.com
`DLA PIPER LLP (US)
`555 Mission Street, Suite 2400
`San Francisco, CA 94105-2933
`Tel: 415.836.2500
`Fax: 415.836.2501
`
`RAJ N. SHAH (admitted pro hac vice)
`raj.shah@dlapiper.com
`ERIC M. ROBERTS (admitted pro hac vice)
`eric.roberts@dlapiper.com
`DLA PIPER LLP (US)
`444 West Lake Street, Suite 900
`Chicago, IL 60606-0089
`Tel: 312.368.4000
`Fax: 312.236.7516
`
`Attorneys for Defendant
`APPLE INC.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`MATTHEW PRICE, individually and on behalf
` CASE NO. 4:21-CV-02846-HSG
`of all others similarly situated,
`Plaintiff,
`
`v.
`APPLE INC., a California corporation,
`Defendant.
`
`DEFENDANT APPLE INC.’S NOTICE
`OF MOTION AND MOTION TO
`DISMISS SECOND AMENDED CLASS
`ACTION COMPLAINT, AND
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT THEREOF
`
`Date: November 17, 2022
`Time: 2:00 p.m.
`Crtrm: 2 (4th Floor, Oakland)
`Judge: Hon. Haywood S. Gilliam, Jr.
`
`Complaint filed: April 20, 2021
`
`CASE NO. 4:21-CV-02846-HSG
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`Case 4:21-cv-02846-HSG Document 56 Filed 05/31/22 Page 2 of 19
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`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`TABLE OF CONTENTS
`INTRODUCTION .............................................................................................................. 1
`
`BACKGROUND FACTS .................................................................................................. 3
`
`A.
`
`B.
`
`C.
`
`The Apple Media Service Terms and Conditions. ................................................. 3
`
`Plaintiff’s Claims for Relief. .................................................................................. 5
`
`The Prior Dismissal Order. ..................................................................................... 6
`
`ISSUES TO BE DECIDED (CIV. L.R. 7-4(A)(3)) ........................................................... 7
`
`LEGAL STANDARD ........................................................................................................ 7
`
`ARGUMENT ..................................................................................................................... 8
`
`A.
`
`B.
`
`C.
`
`D.
`
`Plaintiff Fails to Allege Any Specific Contract Term That Apple Allegedly
`Breached. ................................................................................................................ 8
`
`Apple Properly Exercised Its Express Termination Right under the Terms. ....... 11
`
`Plaintiff Does Not Allege Sufficient Facts to Show That He Fully
`Performed under the Terms. ................................................................................. 12
`
`Plaintiff’s Breach of Contract Claim Is Barred by the Terms’ Waiver and
`Limitation of Liability Provisions. ....................................................................... 13
`
`VI.
`
`CONCLUSION ................................................................................................................ 15
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`
`CASES
`
`TABLE OF AUTHORITIES
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .............................................................................................................. 2, 7
`
`Bass v. Facebook, Inc.,
`394 F. Supp. 3d 1024 (N.D. Cal. 2019) ............................................................................ 13, 14
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .............................................................................................................. 2, 7
`
`Brackett v. Am. Airlines Group, Inc.,
`21-cv-02681-HSG, 2022 WL 282529 (Jan. 31, 2022) (Gilliam, J.)................................ 8, 9, 12
`
`Carma Dev. (Cal.) Inc. v. Marathon Dev. Cal., Inc.,
`2 Cal. 4th 342 (1992) ............................................................................................................... 11
`
`Cole v. Sunnyvale,
`2010 WL 532428 (N.D. Cal. Feb. 9, 2010) ......................................................................... 8, 11
`
`Coto Settlement v. Eisenberg,
`593 F.3d 1031 (9th Cir. 2010) ................................................................................................... 3
`
`Fid. Fin. Corp. v. Fed. Home Loan Bank of S.F.,
`792 F.2d 1432 (9th Cir. 1986) ................................................................................................... 8
`
`Food Safety Net Servs. v. Eco Safe Sys. USA, Inc.,
`209 Cal. App. 4th 1118 (2012) ................................................................................................ 14
`
`Gardiner v. Walmart Inc.,
`2021 WL 2520103 (N.D. Cal. Mar. 5, 2021) .......................................................................... 14
`
`Goulatte v. CitiMortgage, Inc.,
`2013 WL 12132060 (C.D. Cal. Feb. 27, 2013) ....................................................................... 12
`
`Huynh v. Quora, Inc.,
`18-cv-07597-BLF, 2019 WL 11502875 (N.D. Cal. Dec. 19, 2019) ................................. 13, 14
`
`In re Bank of America Credit Protection Marketing & Sales Prac. Litig.,
`MD 11-2269 TEH, 2012 WL 1123863 (N.D. Cal. Apr. 3, 2012) ................................... 8, 9, 12
`
`In re Century Aluminum Co. Secs. Litig.,
`729 F.3d 1104 (9th Cir. 2013) ................................................................................................... 7
`
`In re Facebook Internet Tracking Litig.,
`263 F. Supp. 3d 836 (N.D. Cal. 2017) ...................................................................................... 9
`
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`In re Yahoo Mail Litig.,
`7 F. Supp. 3d 1016 (N.D. Cal. 2014) ........................................................................................ 7
`
`Jackson v. Rhino Entertainment Co.,
`2016 WL 11002546 (C.D. Cal. Nov. 10, 2016) ...................................................................... 12
`
`Kwan v. SanMedica Int’l,
`854 F.3d 1088 (9th Cir. 2017) ................................................................................................... 3
`
`Levy v. State Farm Mut. Auto. Ins. Co.,
`150 Cal. App. 4th 1 (2007) .................................................................................................. 8, 12
`
`Miron v. Herbalife Intern., Inc.,
`11 F. App'x 927 (2001) ............................................................................................................. 9
`
`Mishiyev v. Alphabet, Inc.,
`444 F. Supp. 3d 1154 (N.D. Cal. 2020) .................................................................................. 11
`
`Rankin v. Global Tel*Link Corp.,
`13-cv-01117-JCS, 2013 WL 3456949 (N.D. Cal. July 9, 2013) ............................................... 9
`
`Richardson v. First Centennial Mortg. Corp.,
`2018 11346757 (C.D. Cal. Nov. 19, 2018) ......................................................................... 2, 12
`
`Sprewell v. Golden State Warriors,
`266 F.3d 979 (9th Cir. 2001) ..................................................................................................... 3
`
`Stanislaus Food Products Co. v. USS-POSCO Industries,
`782 F. Supp. 2d 1059 (E.D. Cal. 2011) ..................................................................................... 8
`
`United Specialty Ins. Co. v. Meridian Mgmt. Group, Inc.,
`15-cv-01039, 2015 WL 4718998 (N.D. Cal. Aug. 7, 2015) (Gilliam, J.) ........................... 9, 10
`
`Woods v. Google Inc.,
`2011 WL 3501403 (N.D. Cal. Aug. 10, 2011) .......................................................................... 9
`
`Young v. Facebook, Inc.,
`790 F. Supp. 2d 1110 (N.D. Cal. 2011) .......................................................................... 8, 9, 10
`
`STATUTES
`
`Civ. L.R. 7-4(A)(3) ......................................................................................................................... 7
`
`OTHER AUTHORITIES
`
`Fed. R. Civ. P. 11 ...................................................................................................................... 7, 15
`
`Fed. R. Civ. P. 12(b)(6) ............................................................................................................... 1, 7
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`I.
`
`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that on November 17, 2022, at 2:00 p.m., or as soon thereafter
`as this matter may be heard by the Honorable Haywood S. Gilliam, Jr. in Courtroom 2, 4th Floor,
`of the above-entitled Court located at 1301 Clay Street, Oakland, California, 94612, Defendant
`Apple Inc. (“Apple”) will, and hereby does, move to dismiss with prejudice the Second Amended
`Complaint (“SAC”) of Plaintiff Matthew Price (“Plaintiff”), individually and on behalf of all
`others similarly situated, and each claim asserted therein against Apple.
`Apple brings this Motion pursuant to Federal Rule of Civil Procedure 12(b)(6) because
`Plaintiff fails to state a claim for relief as to any and each claim alleged against Apple. This Motion
`is based on this Notice of Motion and Motion, Memorandum of Points and Authorities, and all
`pleadings, arguments, and matters before the Court.
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`Plaintiff’s Second Amended Complaint (“SAC”) is his third attempt to state a claim against
`Apple Inc. (“Apple”) for allegedly terminating his Apple ID because he sought and obtained
`chargebacks on multiple in-app game purchases. But the SAC fares no better because Plaintiff still
`fails to allege any facts establishing that Apple’s alleged conduct was impermissible. As the Court
`acknowledged in dismissing the First Amended Complaint (“FAC”), Apple’s Media Services
`Terms and Conditions (the “Terms”) grant Apple a clear, unambiguous, and enforceable right to
`terminate the “Services” to Plaintiff “if Apple determined (or even suspected) that he failed to
`comply with the Apple Terms.” See Dkt. 52 (“Order”) at 11. Having twice failed to show that
`Apple’s exercise of its contractual right to terminate his Apple ID and access to the Services
`violated California law and public policy, Plaintiff tries a new tack in the SAC—he now concedes
`that the Terms are enforceable but contends that Apple allegedly breached them by “erroneously”
`determining that Plaintiff’s conduct failed to comply with the Terms.
`But Plaintiff’s own allegations indicate that Apple rightfully could have determined that he
`breached the Terms by engaging in the admitted chargebacks. The Terms expressly prohibit users
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`from engaging in refund abuse, and Plaintiff admits he made repeated “chargebacks,” i.e., obtained
`repeated refunds. SAC ¶ 26. Plaintiff’s own alleged facts demonstrate that Plaintiff’s repeated
`chargebacks did not comply with the Terms. Id. ¶¶ 27, 64. By contrast, the SAC’s threadbare
`allegations do not support Plaintiff’s assertion that his chargebacks were “lawful” or that he
`otherwise complied with the Terms.
`In short, Plaintiff has attempted to repackage his prior unsuccessful claims as a single claim
`for “breach of contract,” but this effort does not alter the outcome and again compels dismissal—
`this time with prejudice. In particular, the SAC’s new breach of contract claim fails on least the
`following four grounds.
`First, Plaintiff fails to allege any specific term or obligation under the Terms that Apple
`breached by allegedly terminating his Apple ID and access to Services due to chargeback-related
`activity. That alone is fatal to Plaintiff’s claim.
`Second, the Terms foreclose Plaintiff’s claim because they expressly permit the action
`Plaintiff alleges as the breach (i.e., terminating Services to Plaintiff). As the Court’s prior Order
`affirmed, the Terms include a “TERMINATION AND SUSPENSION OF SERVICES” provision
`(“Termination Provision”) that “gives Apple the right to terminate a user’s Apple ID account if it
`suspects a user has ‘failed . . . to comply with any of the provisions of’ the Apple Terms,” such that
`“Plaintiff knew that he would lose access to his purchased apps and services if Apple determined
`(or even suspected) that he failed to comply with the Apple terms.” Order at 11. Plaintiff’s theory
`of breach is inconsistent with Apple’s broad and express termination rights under the Terms.
`Third, Plaintiff does not allege sufficient facts showing that he complied with the Terms.
`Instead, he relies only on conclusory assertions that he did not breach the Terms and used his
`Apple ID “in a lawful manner at all times.” SAC ¶¶ 22-23, 42. Such summary statements do not
`cross the pleading thresholds set by Twombly, Iqbal, and their progeny, and the Court need not
`accept the statements as true on a motion to dismiss.
`Fourth, Plaintiff’s contract claim is barred by the Terms’ disclaimers, waivers, and
`limitation of liability provisions, which are enforceable and prevent the relief Plaintiff seeks here.
`SAC Ex. A, § L. The Court previously found that Plaintiff “has not alleged facts showing the
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`Apple Terms were substantively unconscionable.” Order at 6-7. The SAC does not claim that the
`Terms were unconscionable, nor does the SAC contain any new facts that would lead to such a
`conclusion. Accordingly, even if Plaintiff could adequately plead a breach of contract claim, the
`Terms expressly bar this action for damages.
`Having now had three opportunities to state a viable claim against Apple based in tort or
`contract across three separate complaints and multiple legal theories, Plaintiff should not be
`granted further leave to amend. The SAC should be dismissed with prejudice.
`II.
`BACKGROUND FACTS
`For purposes of this Motion, the court must accept any “well-pleaded factual allegations”
`together with the Terms that have been attached and incorporated into the SAC. See Kwan v.
`SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017); Coto Settlement v. Eisenberg, 593 F.3d
`1031, 1038 (9th Cir. 2010) (“On a motion to dismiss, we may consider materials incorporated into
`the complaint.”); see also Dkt. 53-1. However, the Court “need not . . . accept” allegations “that
`contradict” the Terms. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
`A.
`The Apple Media Service Terms and Conditions.
`Plaintiff’s sole claim is that Apple breached the Terms, a “contract between [him] and
`Apple” that governed his “use of Apple’s services” through which he could “buy, get, license, rent
`or subscribe to content, Apps [], and other in-app services.” SAC Ex. A at 21; id. ¶ 2 nn. 1 & 2; id.
`¶¶ 21, 59. The SAC’s recitation of the applicable Terms is incomplete, as it omits multiple
`provisions that bear on this dispute.
`Under the Terms, Plaintiff could “acquire Content on [Apple’s] Services for free or for a
`charge, either of which is referred to as a ‘Transaction,’” and each Transaction was “an electronic
`contract between you and Apple, and/or you and the entity providing the Content on our Services.”
`SAC Ex. A at 2. The Terms prohibited Plaintiff from, among other things, using the Services to
`“plan or engage in any illegal, fraudulent, or manipulative activity.” Id. at 5-6. Plaintiff also agreed
`that Apple could “monitor [his] use of the Services and Content” for compliance with the Terms,
`
`1 Pinpoint page citations to the Terms refer to Dkt. 53-1.
`3
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`id. at 3, and take action to prevent breaches of the Terms or suspected abuse of its Services by, for
`example, “refus[ing] a refund request if we find evidence of fraud, refund abuse, or other
`manipulative behavior that entitles Apple to a corresponding counterclaim.” Id. at 2; see also id. at
`14 (granting Apple “the right to take steps Apple believes are reasonably necessary or appropriate
`to enforce and/or verify compliance with any part of this Agreement”). A use of Apple’s Services
`that violates the Terms is a “material breach” of the Terms. Id. at 3.
`As Plaintiff admits, the Terms expressly permitted Apple to prevent him from using or
`accessing the Services if he failed, or if Apple suspected that he failed, to abide by the Terms. SAC
`¶ 34. In whole, the Termination Provision states:
`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.
`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.
`See id. Ex. A at 12 (emphases added).
`The Terms also include express waiver and limitation of liability provisions with respect to
`the Services or any breach of the Terms. Plaintiff agreed:
`By using the services . . . to indemnify and hold Apple . . . harmless with respect
`to any claims arising out of your breach of this Agreement, your use of the
`Services, or any action taken by Apple as part of its investigation of a suspected
`violation of this Agreement or as a result of its finding or a decision that a
`violation of this agreement has occurred. You agree that you shall not sue or
`recover any damages from Apple . . . as a result of its decision to remove or refuse
`to process any information or content . . . to suspend or terminate your access to
`the Services, or to take any other actions during the investigation of a suspected
`violation or as a result of Apple’s conclusion that a violation of this Agreement
`has occurred. This waiver and indemnity provision applies to all violations
`described in or contemplated by this Agreement.
`See id. at 12-13 (emphases added). Plaintiff further agreed to a Disclaimer of Warranties and
`Liability Limitation provision that provided: “use of, or inability to use, or activity in connection
`with the services is at your sole risk,” and Apple shall not be liable for damages “arising from your
`use of any of the Services or for any other claim related in any way to your use of the Services
`and/or Content.” Id.
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`Plaintiff’s Claims for Relief.
`B.
`Plaintiff alleges that “[s]ince January 8, 2015, he has used his Apple ID to buy Content and
`Services from Apple, spending $24,590.05, for use on his Apple Devices,”2 allegedly “doing so in
`a lawful manner at all times.” SAC ¶ 23. According to the SAC, “Apple terminated” Plaintiff’s
`Apple ID on or about October 29, 2020, for breaching the Terms “by engaging in chargebacks.” Id.
`¶¶ 25-26. When Apple terminated Plaintiff’s Apple ID, it allegedly refused “to provide [him]
`access to [his] apps, Services, Content and/or unspent money in [his] Apple account[].” Id. ¶ 3.
`Based on this cursory and incomplete summary of his unique experience, and nothing else,
`Plaintiff speculates “on information and belief” that Apple has “a uniform policy and practice” of
`terminating users’ access to the Services “after they lawfully engage in chargebacks.” Id. Plaintiff
`seeks to represent two nationwide classes consisting of (1) all persons who “had an Apple ID and
`who had their Apple ID terminated for engaging in chargebacks and who were deprived access to
`the unspent money in their Apple account and the purchased Content and/or Services in their
`Apple account,” and (2) all persons who “had an Apple ID which Apple terminated and who had
`unspent money in their Apple account when their Apple ID was terminated.” Id. ¶ 44.
`A “chargeback,” as Plaintiff defines it, is a “consumer protection tool that allow[s]
`consumers to get their money back for fraudulent charges or purchases that don’t live up to
`standards by submitting a dispute with their card issuer.” Id. ¶ 4 & n.4. Here, Plaintiff alleges that
`he “made multiple chargebacks” because a third-party developer refused his requests for refunds
`due to alleged problems with that developer’s app (not Apple’s Services). Id. ¶¶ 24, 26. Plaintiff
`alleges that he “contacted Apple” regarding his dispute with the third party, and “Apple advised
`him to talk to his bank/credit card company to have them chargeback the money he spent on said
`purchases.” Id. ¶ 24. Plaintiff does not provide any details about his chargebacks—i.e., when they
`were made, how frequently, or their value—and therefore his self-serving characterization of these
`chargebacks as “lawful” is without the support of any well-pleaded facts. Also, Plaintiff never
`
`2 Apple does not endorse Plaintiff’s assertion regarding the sums he allegedly paid for Services and
`Content or other characterizations which do not take into account the admitted chargebacks.
`5
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`explains why he continued to make purchases from a third-party app after allegedly encountering
`repeated problems requiring multiple chargebacks. Id. n.11. One would expect that after the first or
`second poor experience, Plaintiff would not have made further purchases, but the SAC is
`intentionally vague as to his alleged need for repeated chargebacks.
`After the passage of an unspecified period of time, Apple allegedly “terminated Mr. Price
`for breaching its terms by engaging in chargebacks” on October 29, 2020.3 Id. ¶ 26. Plaintiff
`alleges that during a call with an unnamed Apple representative two months later, he was told “that
`his Apple ID was terminated because he initiated chargebacks.” Id. ¶ 27. Again, Plaintiff does not
`dispute that he made the chargebacks Apple allegedly cited as the basis for terminating access to
`the Services. Instead, he disagrees with Apple’s determination that he breached the Terms because,
`according to his allegations, the Terms do not “prohibit Plaintiff and members of the Classes from
`engaging in chargebacks for apps, Services, and/or Content they purchased from and/or through
`Apple.” Id. ¶¶ 62, 65. At the same time, Plaintiff fails to cite any provision of the Terms that
`requires Apple to allow chargebacks or bars Apple from suspecting or deciding that a pattern of
`chargebacks constitutes refund abuse that violates the Terms. Still, Plaintiff asserts that due to
`Apple’s alleged breach of the Terms, he was deprived access to $24,590.05 in purchased Content
`and $7.63 in unspent funds. Id. ¶¶ 29-30.
`C.
`The Prior Dismissal Order.
`Plaintiff’s original Complaint and FAC asserted a number of tort-based claims seeking to
`challenge the enforceability of the Termination Provision. The Court dismissed the FAC on April
`6, 2022, because the FAC lacked well-pleaded facts establishing that the Termination Provision
`was unconscionable or otherwise unenforceable. See generally Order. As for Plaintiff’s claims that
`the Termination Provision constituted an unenforceable liquidated damages clause, and his claims
`
`3 Apple does not admit or adopt Plaintiff’s use of the term “lawful chargeback”—whatever it may
`mean—and denies that it terminated Plaintiff’s Apple ID for engaging in chargebacks. Apple also
`notes that, in amending the SAC, Plaintiff refused to provide any of the particulars about his
`multiple chargebacks to support his assertion that they were “lawful,” let alone when he made his
`last chargeback, how much time passed before Apple allegedly terminated his Apple ID, and what
`occurred in the interim.
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`for unjust enrichment and equitable relief, the Court dismissed them with prejudice. Order at 13.
`The Court granted leave to amend as to Plaintiff’s remaining claims for conversion, trespass to
`chattels, and violation of the UCL and CLRA but expressed “significant doubts” that Plaintiff
`could replead those claims “consistent with his Rule 11 obligations.” Id. Indeed, Plaintiff has
`abandoned those claims entirely in the SAC.
`III.
`ISSUES TO BE DECIDED (CIV. L.R. 7-4(A)(3))
`Whether (1) Plaintiff fails to plead a plausible claim that Apple breached the Terms by
`“terminating” Plaintiff’s Apple ID, thereby denying Plaintiff use of or access to purchased Content
`or Services and/or retaining unspent funds in his Apple account; (2) Plaintiff’s breach of contract
`claim is barred by the Termination Provision, Disclaimer of Warranties, Limitation of Liability,
`and/or Waiver and Indemnity provisions in the Terms.
`IV.
`LEGAL STANDARD
`Rule 12(b)(6) requires dismissal where a complaint fails to allege “enough facts to state a
`claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
`“The plausibility standard” requires allegations that allow “the court to draw the reasonable
`inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
`678 (2009). “When faced with two possible explanations, only one of which can be true and only
`one of which results in liability, plaintiffs cannot offer allegations that are merely consistent with
`their favored explanation but are also consistent with the alternative explanation. Something more
`is needed, such as facts tending to exclude the possibility that the alternative explanation is true, in
`order to render plaintiffs’ allegations plausible.” In re Century Aluminum Co. Secs. Litig., 729 F.3d
`1104, 1108 (9th Cir. 2013) (internal quotation marks and citations omitted); see also Iqbal, 556
`U.S. at 682 (a claim is not plausible and subject to dismissal where an “obvious alternative
`explanation” exists) (citing Twombly). “Mere conclusory allegations of law and unwarranted
`inferences are insufficient to defeat a motion to dismiss.” In re Yahoo Mail Litig., 7 F. Supp. 3d
`1016, 1024 (N.D. Cal. 2014). Additionally, the Court may “draw on its experience and common
`sense” to determine whether the claim stated by the allegations is plausible. Iqbal, 556 U.S. at 679.
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`CASE NO. 4:21-CV-02846-HSG
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`APPLE’S MOTION TO DISMISS SAC
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`Case 4:21-cv-02846-HSG Document 56 Filed 05/31/22 Page 12 of 19
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`Where a complaint has been amended, the court “does not ignore prior allegations” and
`may “consider the prior allegations as part of its ‘context-specific’ inquiry based on its judicial
`experience and common sense to assess whether the [amended pleading] plausibly suggests an
`entitlement to relief.” Stanislaus Food Products Co. v. USS-POSCO Industries, 782 F. Supp. 2d
`1059, 1075 (E.D. Cal. 2011); Cole v. Sunnyvale, 2010 WL 532428, at *4 (N.D. Cal. Feb. 9, 2010).
`Moreover, courts have broad discretion to deny leave to amend “where the court has already given
`the plaintiff an opportunity to amend his complaint.” Fid. Fin. Corp. v. Fed. Home Loan Bank of
`S.F., 792 F.2d 1432, 1438 (9th Cir. 1986).
`V.
`ARGUMENT
`A claim for breach of contract requires factual allegations showing “(1) the existence of the
`contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4)
`the resulting damages to the plaintiff.” Brackett v. Am. Airlines Group, Inc., 21-cv-02681-HSG,
`2022 WL 282529, at *3 (Jan. 31, 2022) (Gilliam, J.) (citations and quotations omitted). Here, the
`SAC does not (and cannot) plausibly allege, through well-pleaded facts, the second, third, or fourth
`elements of a claim for breach of contract, and the Court should dismiss the claim with prejudice.
`A.
`Plaintiff Fails to Allege Any Specific Contract Term That Apple Allegedly
`Breached.
`Plaintiff’s breach of contract claim against Apple fails at the threshold because the SAC
`does not identify a single provision or obligation under the Terms that Apple allegedly breached.
`Plaintiff bears the burden of alleging “‘the specific provisions in the contract creating the
`obligation the defendant is said to have breached.’” Id. (quoting Young v. Facebook, Inc., 790 F.
`Supp. 2d 1110, 1117 (N.D. Cal. 2011)) (emphasis added). Moreover, “‘[f]acts alleging a breach,
`like all essential elements of a breach of contract cause of action, must be pleaded with
`specificity.’” In re Bank of America Credit Protection Marketing & Sales Prac. Litig., MD 11-
`2269 TEH, 2012 WL 1123863, at *4 (N.D. Cal. Apr. 3, 2012) (quoting Levy v. State Farm Mut.
`Auto. Ins. Co., 150 Cal. App. 4th 1, 5 (2007)).
`Here, Plaintiff alleges that “Apple materially breached its Terms with Plaintiff . . . by
`erroneously finding, or suspecting, that [he] violated its Terms because [he] engaged in
`chargebacks which are not prohibited by Apple’s Terms.” SAC ¶ 64 (emphasis added). This self-
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`APPLE’S MOTION TO DISMISS SAC
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`Case 4:21-cv-02846-HSG Document 56 Filed 05/31/22 Page 13 of 19
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`serving conclusion, however, does not find support in the Terms or the well-pleaded allegations of
`the SAC. Nothing in the Terms obligates Apple to allow Plaintiff to make chargebacks, let alone
`“multiple chargebacks,” regardless of their reason, amount, or frequency. Apple therefore did not
`breach the Terms by refusing to allow Plaintiff to continue making chargebacks. Nor can Plaintiff
`predicate the alleged breach on the fact that the Terms do not expressly and affirmatively state that
`Apple can terminate or disable account access for “chargebacks” where there is no express
`obligation under the Terms prohibiting Apple from terminating Plaintiff’s Apple ID allegedly for
`that reason. See, e.g., Rankin v. Global Tel*Link Corp., 13-cv-01117-JCS, 2013 WL 3456949, at
`*14 (N.D. Cal. July 9, 2013) (dismissing contract claim based on theory that defendant’s conduct
`“constituted a breach because there is no provision in the Terms and Conditions that permitted the
`allegedly wrongful conduct”); In re Bank of America, 2012 WL 1123863, at *4 (dismissing
`contract claim where plaintiffs failed to allege breach of a specific term and instead alleged breach
`theory based on “the absence of a term affirmatively allowing” the fees that formed the basis of the
`alleged breach); see also Miron v. Herbalife Intern., Inc., 11 F. App’x 927, 929 (2001) (to plead
`breach of an express contract, “the writing must express the obligation sued upon”).
`Courts routinely dismiss claims at the pleading stage for failure to allege an express
`contractual obligation the defendant allegedly breached. See, e.g., Young, 790 F. Supp. 2d at 1117;
`In re Facebook Internet Tracking Litig., 263 F. Supp. 3d 836, 848 (N.D. Cal. 2017) (dismissing
`contract claim where plaintiffs failed to id