Case 5:20-cv-07495-EJD Document 53 Filed 02/14/22 Page 1 of 11
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`ALASDAIR TURNER,
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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. 5:20-cv-07495-EJD
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`DISMISS
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`Re: Dkt. No. 34
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`Plaintiff Alasdair Turner alleges that Defendant Apple, Inc.’s product, the iPhone,
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`possesses software that, when activated, allows the phone to secretly consume cellular data for
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`Defendant’s benefit without the user’s knowledge or consent. On March 4, 2021, Defendant
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`moved to dismiss Plaintiff’s complaint. See Motion to Dismiss First Amended Complaint
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`(“Mot.”), Dkt. No. 34. On March 25, 2021, Plaintiff filed an opposition, to which Defendant filed
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`a reply. See Opposition to Motion to Dismiss (“Opp.”), Dkt. No. 37; Apple’s Reply in Support of
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`its Motion to Dismiss (“Reply”), Dkt. No. 38. Having read the Parties’ papers, the Court
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`GRANTS in part and DENIES in part Defendant’s motion to dismiss.
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`I.
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`BACKGROUND
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`Plaintiff purchased his iPhone in 2018 from a Verizon store and, at that time, “reviewed
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`the materials accompanying his purchase and the documentation necessary to complete setup of
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`the device.” See First Amended Class Action Complaint (“FAC”) ¶¶ 1, 39, Dkt No. 30.
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`Sometime in September or October 2019, Plaintiff updated his iPhone with the iOS version
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`13 software. FAC ¶ 9. Defendant promised this update would bring “improvement across the
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`entire system that make [] iPhone[s] even faster and more delightful to use.” FAC ¶ 2. Plaintiff
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`alleges, on behalf of himself and a putative class, that the update did not improve use. According
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`to Plaintiff, Defendant designed the iPhone with the undisclosed capability to appropriate and
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`consume users’ cellular data for Defendant’s own benefit. FAC ¶¶ 3, 42 (“Apple did not
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`disclose—either in connection with iPhone purchases, installation of iOS 13, or otherwise—that it
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`has the capability to surreptitiously use consumers’ valuable cellular data exclusively for its own
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`purposes, including for software development or other technical improvements.”). Plaintiff
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`alleges that Defendant activated this capability in 2019 by rolling out iOS 13, which caused
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`iPhones to send significant amounts of data to Apple, routed Apple’s data transfers exclusively
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`over cellular networks, and exempted Apple’s data transfers from normal settings favoring Wi-Fi
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`connections. See FAC ¶ 5. Defendant did not disclose that iOS 13 contained hidden software
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`code (the “Consuming Code”) that caused devices running iOS 13 to consume cellular data
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`without the user’s input or control. FAC ¶ 4. To prevent users from noticing that Defendant’s
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`software was consuming data, Defendant mischaracterized the data-drain as coming from
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`“Uninstalled Apps” on the iPhone’s internal cellular data meter. FAC ¶¶ 42, 47. That is,
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`Defendant’s iOS 13 falsely suggested that the user was causing the data consumption by
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`uninstalling applications. FAC ¶¶ 26–27.
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`The iOS 13 Software Licensing Agreement (“SLA”) did not warn users that iOS 13 would
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`cause a data drain, but instead advised users that they would be able to view and control how
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`much data iOS 13 used. It provided that:
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`You agree that many features, built-in apps, and Services of the Apple
`Software transmit data and could impact charges to your data plan,
`and that you are responsible for any such charges. You can view and
`control which applications are permitted to use cellular data and view
`an estimate of how much data such applications have consumed under
`Cellular Data Settings. In addition, Wi-Fi Assist will automatically
`switch to cellular when you have a poor Wi-Fi connection, which
`might result in more cellular data use and impact charges to your data
`plan.
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`FAC ¶ 18.
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`Because Plaintiff, and the putative class, had cellular data plans with a limited amount of
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`data (e.g., 5 GB per month), being able to predict and control their cellular data usage was
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`Case 5:20-cv-07495-EJD Document 53 Filed 02/14/22 Page 3 of 11
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`imperative otherwise they could be charged exorbitant overage fees by their carriers. FAC ¶¶ 21–
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`22. Plaintiff seeks relief because Defendant’s iOS 13 impacted his ability to control his cellular
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`data usage by, among other things, misclassifying how iOS 13 consumed data and making it
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`impossible for users to disable iOS 13’s use of data. Plaintiff argues that Defendant
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`misappropriated his cellular data for its own use, and thus that he, and the class, are entitled to
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`restitution for the value of the data Defendant consumed. FAC ¶ 83.
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`Plaintiff brings four claims: (1) First, he asserts a claim under the Consumers Legal
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`Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq.; (2) Second, he asserts a claim under the
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`California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq.; (3) Third,
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`he asserts a claim under the California Computer Data Access and Fraud Act (“CDAFA”), Cal
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`Penal Code §§ 502 et seq.; and (4) Fourth, he asserts a claim for trespass to chattels. See FAC
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`¶¶ 63–96. Plaintiff seeks both monetary and injunctive relief.
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`Defendant argues that Plaintiff is barred from seeking injunctive relief since adequate
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`remedies exist at law. Defendant further argues that Plaintiff lacks standing to pursue injunctive
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`relief since he concedes that the alleged data misattribution issue was resolved in June 2020 and
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`there are no facts in the complaint that suggest it will recur. With respect to Plaintiff’s claims,
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`Defendant seeks to dismiss his first, second, and fourth claims. Defendant argues that Plaintiff’s
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`UCL and CLRA claims must be dismissed because Plaintiff does not allege that he was exposed to
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`or relied on omissions by Defendant at the time he purchased his iPhone. Defendant also argues
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`that Plaintiff’s trespass claim must be dismissed because Plaintiff has not alleged that he was
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`deprived of the use of his iPhone for a substantial time or suffered a significant reduction in his
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`iPhone’s performance.
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`II.
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`LEGAL STANDARD
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`A complaint must be dismissed for failure to state a claim under Federal Rule of Civil
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`Procedure 12(b)(6) if the plaintiff either fails to state a cognizable legal theory or has not alleged
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`sufficient facts establishing a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the
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`Court must accept well-pled facts as true, “conclusory allegations without more are insufficient to
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`defeat a motion to dismiss.” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988).
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`The Court cannot assume the truth of legal conclusions merely because they are pled in the form
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`of factual allegations, nor should it accept as true allegations contradicted by judicially noticeable
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`facts. Iqbal, 556 U.S. at 677–79; Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to provide
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`the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than the labels and conclusions, and a
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`formulaic recitation of the elements of a cause of action will not do. Factual allegations must be
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`enough to raise a right to relief above the speculative level.” (citations omitted) (alterations in
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`original)).
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`Claims grounded in fraud, like the omissions pled in this case, are subject to the heightened
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`pleading requirements of Federal Rule of Civil Procedure 9(b). Moore v. Apple, 73 F. Supp. 3d
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`1191, 1198 (N.D. Cal. 2014). Rule 9(b) requires that a fraud-based claim “state with particularity
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`the circumstances constituting fraud.” Id. (quoting Fed. R. Civ. P. 9(b)). To satisfy this
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`heightened standard, the allegations must be specific enough “to give defendants notice of the
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`particular misconduct which is alleged to constitute the fraud charged so that they can defend
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`against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner,
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`780 F.2d 727, 731 (9th Cir. 1985). Thus, claims sounding in fraud must allege “an account of the
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`‘time, place, and specific content of the false representations as well as the identities of the parties
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`to the misrepresentations.’” Moore, 73 F. Supp. 3d at 1198 (quoting Swartz v. KPMG LLP, 476
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`F.3d 756, 764 (9th Cir. 2007) (per curiam)). The plaintiff must set forth “what is false or
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`misleading about a statement, and why it is false.” Id.; see also Kearns v. Ford Motor Co., 567
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`F.3d 1120, 1124 (9th Cir. 2009) (“A party alleging fraud must ‘set forth more than the neutral
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`facts necessary to identify the transaction.’” (citation omitted)).
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`III. DISCUSSION
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`As noted above, Plaintiff asserts four claims for relief: (1) violation of the CLRA; (2)
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`violation of the UCL; (3) violation of the CDAFA; and (4) trespass to chattels. FAC ¶¶ 63–96.
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`Defendants argue that Counts One, Two, and Four should be dismissed and that any request for
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`equitable relief must also be dismissed. Mot. at 5.
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`A. Claims for Restitution and Injunctive Relief
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`Among other remedies, Plaintiff seeks restitution and an injunction for Defendant’s
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`allegedly unlawful conduct under the UCL and the CLRA. Defendant argues that these claims
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`should be dismissed because Plaintiff cannot seek equitable relief since Plaintiff has an adequate
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`remedy at law. Mot. at 5–6. Plaintiff contends that he can pursue equitable relief since (1) an
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`injunction is the only way to address Defendant’s continued failure to disclose its iPhone defects,
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`namely that it possesses software that allows Defendant to consume user’s data without notice,
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`and (2) his restitution claims are not commensurate with his claims for damages.
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`Under Ninth Circuit law, a plaintiff must establish that they lack an “adequate remedy at
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`law before securing equitable restitution for past harm under the UCL and CLRA.” Sonner v.
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`Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020); see also Schroeder v. United States,
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`569 F.3d 956, 963 (9th Cir. 2009) (“[E]quitable relief is not appropriate where an adequate remedy
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`exists at law.”). Sonner concerned equitable restitution; however, this Court and several others
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`have held that Sonner also applies to injunctive relief. See In re MacBook Keyboard Litig., 2020
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`WL 6047253, at *3 (N.D. Cal. Oct. 13, 2020) (collecting cases).
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`Plaintiff must show that monetary damages for the past harm caused by iOS 13 are an
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`inadequate remedy for the future harm that an injunction under California consumer protection
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`law is aimed at. Plaintiff’s remedy at law, damages, is retrospective and can only remedy Plaintiff
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`for the harm already incurred. An injunction, on the other hand, is prospective and would remedy
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`any threat of future harm.
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`The Court agrees with Plaintiff that legal remedies alone are inadequate. Defendant urges
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`that the Court read the complaint to allege that the Consuming Code caused the alleged data
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`depletion and that after the iOS 14 update, Defendant lost its ability to deplete user’s data.
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`Plaintiff contends that an alternative reading is more appropriate. In Plaintiff’s view, the
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`complaint alleges that iPhones contained general software that allowed Defendant to use user’s
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`data and that the Consuming Code “triggered” this software. Under Plaintiff’s reading of the
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`complaint, an injunction is necessary because all iPhones contain software that allow Defendant to
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`misappropriate user data, regardless of past or future updates. Viewing the allegations in the light
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`most favorable to Plaintiff, the complaint contains allegations that Defendant could again
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`reintroduce software that “triggered” the embedded ability to misappropriate user data for
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`Defendant’s benefit. See, e.g., FAC ¶ 3 (“Apple did not disclose—either in connection with
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`iPhone purchases, installation of iOS 13, or otherwise—that it has the capability to surreptitiously
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`use consumer’s valuable cellular data exclusively for its own purposes, including for software
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`development or other technical improvements.” (emphasis added)). Thus, it is not enough that
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`Defendant voluntarily ceased use of iOS 13. While Plaintiff can be compensated for the past harm
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`caused by iOS 13, there is no adequate legal remedy for the threat that Defendant may again use
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`its embedded software to misappropriate user data. An injunction would remedy this risk by
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`ensuring that consumers, including Plaintiff, could rely on Defendant’s future representations
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`regarding cellular data consumption. See IntegrityMessageBoards.com v. Facebook, Inc., 2020
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`WL 6544411, at *6, *8 (N.D. Cal. Nov. 6, 2020) (finding that plaintiff lacked an adequate remedy
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`at law for the risk of future harm); Zeiger v. WellPet LLC, 526 F. Supp. 3d 652, 687 (N.D. Cal.
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`2021) (“Damages would compensate Zeiger for his past purchases. An injunction would ensure
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`that he (and other consumers) can rely on WellPet’s representations in the future. Accordingly,
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`retrospective damages are not an adequate remedy for that prospective harm.”); McGill v.
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`Citibank, N.A., 2 Cal. 5th 945, 955 (2017) (explaining that UCL and CLRA injunctive relief is
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`designed to prevent “future harm”).
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`Likewise, restitution is required because legal damages do not cover the full value of the
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`harm alleged. Pursuant to the complaint, Plaintiff had to pay Verizon, his carrier, $15 for one
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`additional GB of data because he exceeded his 5GB plan due to Defendant’s misappropriation of
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`cellular data. FAC ¶ 31. This does not address the full range of damages experienced by Plaintiff
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`and the putative class, namely individuals who did not exceed their data plan, but whose data was
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`consumed by Defendant. See FAC ¶¶ 31–34. Indeed, as Plaintiff notes, every time Defendant
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`appropriated any amount of data, the data was unavailable to users, even though users had a right
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`to use (or not to use) the data that they paid for. Opp. at 6. Accordingly, the restitution claim
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`addresses a different harm because it encompasses the full value of misappropriated data, not just
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`the overage charges users paid to their carriers. Cf. Sonner, 971 F.3d at 844 (“Sonner fails to
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`explain how the same amount of money for the exact same harm is inadequate or
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`incomplete . . . .”); Inline, Inc. v. Apace Moving Sys., Inc., 125 Cal. App. 4th 895, 903 (2005) (“On
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`one hand, damages describes a payment made to compensate a party for injuries suffered. In
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`contrast, a monetary payment is more properly characterized as restitutionary than compensatory
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`in nature when the defendant is asked to return something he wrongfully received . . . .” (quotation
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`marks and citation omitted) (cleaned up)). Here, Plaintiff and the putative class seek to be
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`reimbursed for the value of the data that Defendant wrongfully received. Thus, restitution is an
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`appropriate remedy in this case.
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`In the alternative, Defendant argues that Plaintiff cannot seek restitution under the UCL for
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`funds paid to a third party, i.e. Verizon. Mot. at 6–7. This misunderstands Plaintiff’s complaint.
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`As Plaintiff notes in its opposition, it does not seek damages from Verizon, but instead seeks
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`compensation from Defendant for the value of the misappropriated data. See Opp. at 7; FAC
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`¶¶ 40, 70, 72, 82 (alleging that Plaintiff suffered economic injury when Defendant
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`misappropriated his property, i.e., cellular data, for its own benefit); cf. Phillips v. Apple Inc., 725
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`F. App’x 496, 499 (9th Cir. 2018) (“Plaintiffs did not allege that Apple received money or
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`property, indirectly or otherwise, from their overage payments.”).
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`For these reasons, the Court disagrees with Defendant that Plaintiff’s claims for restitution
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`and injunctive relief fail.
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`B. Standing to Pursue Claim for Injunctive Relief
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`Plaintiff only seeks injunctive relief under his CLRA claim. See FAC ¶ 73. The Court
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`agrees with Defendant that Plaintiff does not have standing to pursue an injunction. In Davidson
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`v. Kimberly-Clark Corporation, the Ninth Circuit settled a divide among the district courts of this
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`Circuit regarding injunctive relief in UCL and CLRA cases. 889 F.3d 956 (9th Cir. 2018). It held
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`that “a previously deceived consumer may have standing to seek an injunction against false
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`advertising or labeling, even though the consumer now knows or suspects that the advertising was
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`false at the time of the original purchase.” Id. at 969.
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`The court discussed two situations that would be sufficient to confer standing. “In some
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`cases, the threat of future harm may be the consumer’s plausible allegations that she will be unable
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`to rely on the product’s advertising or labeling in the future, and so will not purchase the product
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`although she would like to.” Id. at 969–70 (emphasis added). “In some other cases, the threat of
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`future harm may be the consumer’s plausible allegations that she might purchase the product in
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`the future, despite the fact it was once marred by false advertising or labeling, as she may
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`reasonably, but incorrectly, assume the product was improved.” Id. at 970 (emphasis added).
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`Neither scenario discussed in Davidson is satisfied here. As alleged in the complaint,
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`Plaintiff has never stopped using his iPhone and has continued to update his iPhone with new
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`versions of iOS. See FAC ¶¶41, 62. Therefore, he has not suffered a harm that requires injunctive
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`relief. The scenarios in Davidson share a common theme; the past harm must somehow impact
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`the plaintiff’s future use of the product. That has not happened here. The Court concludes that
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`Plaintiff would be unable to amend his complaint to demonstrate standing for injunctive relief.
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`Accordingly, the Court agrees with Defendant that Plaintiff lacks standing to pursue an injunction
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`and dismisses Plaintiff’s injunctive CLRA claim without leave to amend. See Leadsinger, Inc.
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`v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (leave to amend not required where
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`“amendment would be futile”). However, because Plaintiff has expressed an intent to pursue
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`damages under the CLRA, the Court will allow Plaintiff leave to amend his complaint to pursue a
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`CLRA damages claim.
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`C. Standing to Pursue Fraud Claims
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`Plaintiff’s CLRA1 and UCL claims rely on the allegations that Defendant omitted facts
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`from users regarding Apple’s allegedly nonconsensual consumption of cellular data. FAC ¶¶ 68–
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`70, 80–81. Defendant argues that Plaintiff lacks standing to pursue these claims because he has
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`1 Because the Court agrees with Defendant’s that Plaintiff lacks standing to pursue his injunctive
`CLRA claim, the Court’s discussion is limited to Plaintiff’s UCL claim.
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`not alleged that he relied on any misstatement or omissions before or at the time he purchased his
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`iPhone in 2018. The Court agrees.
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`To have standing, “Plaintiff must allege that he has suffered a legally cognizable injury
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`that was caused by [] conduct that allegedly amounts to a violation of” the UCL. See Cullen v.
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`Netflix, Inc., 2013 WL 140103, at *4 (N.D. Cal. Jan. 10, 2013). Furthermore, “actual reliance is
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`required to demonstrate causation for purposes of Article III standing when the plaintiffs assert
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`that their injury is the result of deceptive misrepresentations or omissions.” Phillips v. Apple Inc.,
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`2016 WL 1579693, at *6 (N.D. Cal. Apr. 19, 2016). A plaintiff cannot demonstrate reliance based
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`on statements made after an alleged purchase. Cullen, 2013 WL 140103, at *4 (holding that later
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`statements “cannot give rise to standing” based on a purchase made “well before the statements
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`which Plaintiff alleges caused him harm were made”); see also Yastrab v. Apple Inc., 2015 WL
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`1307163, at *5 (N.D. Cal. Mar. 23, 2015) (“Plaintiff cannot plausibly assert that he relied on any
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`promotional material related to iOS 7 for this purpose since . . . . Plaintiff purchased his phone
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`more than one year earlier . . . .”).
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`Plaintiff must allege that he saw and reviewed materials that could have contained the
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`allegedly omitted disclosure (i.e., that iPhones contained an embedded ability to consume cellular
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`data or that iOS 13 “activated” this ability) before he purchased his iPhone in 2018. Plaintiff has
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`not met that burden. Plaintiff alleges that Defendant failed to adequately disclose that it had
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`designed his iPhone with the ability to co-opt his cellular data for its own use. FAC ¶ 47.
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`However, Plaintiff does not allege that he reviewed materials before purchasing his iPhone.
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`Instead, his complaint alleges that when he purchased his iPhone in 2018, “he received and
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`reviewed the materials accompanying his purchase and the documentation necessary to complete
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`setup of the device.” FAC ¶ 39. Cf. Anderson v. Apple Inc., 500 F. Supp. 3d 993, 1006 (N.D. Cal.
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`2020) (finding that the plaintiffs had met the standing requirement where “the plaintiffs reviewed
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`marketing and similar methods about the iPhone XR prior to making their purchase,” such that
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`there could be a “reasonable inference that they would have encountered the disclosure had it been
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`made” (emphasis added)). Accordingly, the Court GRANTS Defendant’s motion to dismiss
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`Case No.: 5:20-cv-07495-EJD
`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
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`Case 5:20-cv-07495-EJD Document 53 Filed 02/14/22 Page 10 of 11
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`Plaintiff’s UCL claim for lack of standing with leave to amend.
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`D. Trespass to Chattel
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`To state a plausible trespass to chattels claim, Turner must plead that (1) Apple
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`intentionally and without authorization interfered with his possessory interest in his iPhone, and
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`(2) Apple’s unauthorized interference proximately caused damage. See In re Apple Inc. Device
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`Performance Litig., 347 F. Supp. 3d 434, 455 (N.D. Cal. 2018). An electronic communication
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`will constitute trespass if it either damages the recipient’s computer system or impairs its
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`performance. Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1350–51 (2003). “The ‘damages’ element
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`may be satisfied when the plaintiff pleads that the trespass ‘impaired the condition, quality, or
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`value of the personal property.’” Apple Device Performance, 349 F. Supp. 3d at 455. Whether a
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`defendant “caused actual damage or impairment to [] computer systems [is] a question of fact
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`more appropriate for summary judgment or trial than for a motion to dismiss.” WhatsApp Inc. v.
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`NSO Group Techs. Ltd., 472 F. Supp. 3d 649, 686 (N.D. Cal. 2020).
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`Defendant argues that Plaintiff’s trespass to chattel claim should be dismissed because
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`Defendant’s interference with Plaintiff’s iPhone was too insignificant to be actionable. Mot. at 25.
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`However, this ignores allegations in the complaint that Defendant’s use of the Consuming Code
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`greatly impacted Plaintiff and the putative class members’ use of their iPhones. For example,
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`Defendant’s conduct caused Plaintiff and the putative class members to incur cellular data charges,
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`suffer from reduced iPhone data speeds, and lose cellular data that they purchased. FAC ¶¶ 94–
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`95; FAC ¶ 33 (alleging that Plaintiff was only able to mitigate the harm by “turning cellular data
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`off completely” even though doing so “severely limited the functionality of his iPhone”). This is
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`far from an insubstantial interference. These allegations show that Defendant intentionally
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`interfered with a possessory interest and caused damages. Plaintiff has met his pleading burden.
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`Accord Apple Device Performance, 347 F. Supp. 3d at 455–56 (holding that plaintiffs adequately
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`pled a trespass to chattels claim where the iOS software at issue was alleged to have impaired the
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`functionality of the plaintiff’s iPhones). Accordingly, the Court DENIES Defendant’s motion to
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`dismiss Plaintiff’s trespass to chattels claim.
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`Case No.: 5:20-cv-07495-EJD
`ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
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`Case 5:20-cv-07495-EJD Document 53 Filed 02/14/22 Page 11 of 11
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`IV. CONCLUSION
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`For the foregoing reasons, Defendants’ motion to dismiss is granted in part and denied in
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`part. When dismissing a complaint for failure to state a claim, a court should grant leave to
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`amend “unless it determines that the pleading could not possibly be cured by the allegation of
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`other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Although the Court has
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`determined that Plaintiff fails to plead facts that demonstrate standing to pursue his fraud claims, it
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`is possible Plaintiff can cure these allegations by alleging, among other things, more facts as the
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`actions he took before he purchased his iPhone in 2018. Accordingly, because Plaintiffs may
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`salvage their Complaint, the Court finds amendment would not be futile as to these claims. The
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`Court reaffirms its decision to dismiss Plaintiff’s claim for injunctive relief with prejudice.
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`Should Plaintiff choose to file an amended complaint, he must do so by March 10, 2022.
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`Failure to do so, or failure to cure the deficiencies addressed in this Order, will result in dismissal
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`of the dismissed claims. Plaintiff may not add new claims or parties without leave of the Court or
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`stipulation by the parties pursuant to Federal Rule of Civil Procedure 15.
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`The Case Management Conference scheduled for February 24, 2022, is CONTINUED to
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`March 31, 2022, with an updated joint case management statement due by March 21, 2022.
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`IT IS SO ORDERED.
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`Dated: February 14, 2022
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`EDWARD J. DAVILA
`United States District Judge
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`Case No.: 5:20-cv-07495-EJD
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