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Alex Tomek v. Apple

July 10, 2012


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiff Alex Tomek ("Plaintiff") initiated this action against Defendant Apple, Inc. ("Defendant") alleging state law violations arising primarily out of Plaintiff's claim that a computer he purchased from Defendant was defective. Presently before the Court is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint ("FAC"). For the following reasons, Defendant's Motion to Dismiss is GRANTED with leave to amend.*fn1


Plaintiff alleges that on February 15, 2011, Defendant unveiled the 2011 MacBook Pro ("MacBook"), a computer Defendant purportedly touted as generating "huge leaps in performance." According to Plaintiff, Defendant promised, among other things, that:

[The MacBook Pros] run applications up to twice as fast as their top-of-the-line predecessors.

They perform up to twice as fast as the previous generation, breezing through demanding tasks like editing HD video.

Say you're using a processor-intensive application like Aperture 3 or Final Cut Pro that benefits from extra power...By shifting core frequency in smaller increments than before, it allows the processor to manage performance without sacrificing efficiency. All this takes place behind the scenes, so your work just goes smoother and faster.

Even with faster processors and graphics, the new MacBook Pro lasts an amazing 7 hours on a single charge.

[Y]ou can expect to surf the web wirelessly for up to 7 hours on a single charge. Or take your entire creative studio on the road for live performances or a location shoot.

FAC, ¶¶ 6, 7, 9. The above statements are accompanied by the caveat, however, that "[b]attery life and charge cycles vary by use and settings." Declaration of Alexei Klestoff, ¶¶ 2-3, Exhs. A, B.*fn3

Plaintiff purchased a MacBook on February 28, 2011, just shortly after its release. After purchasing his new computer, Plaintiff found that the product's battery was not charging under certain conditions, such as when the computer was fully utilizing processors meant for streaming movies, playing video games or editing video. More specifically, Plaintiff discovered, and reported to Defendant in July of 2011, that his battery was draining power even when the machine was plugged into an external power source via the AC adapter. Plaintiff further contends that, in approximately August of 2011, his power adapter failed to supply sufficient power to the MacBook so much so that the computer's battery drained to zero, causing the machine to shut down. Plaintiff then had to spend twenty minutes recharging his battery and had to re-copy media on a video editing job he was performing. Plaintiff believes other consumers may have experienced a similar situation where their MacBooks stopped functioning properly, or at all for that matter, and that the machines' battery cycle counts may be caused to increase under the above conditions.

According to Plaintiff, when Defendant has been notified that the MacBook battery may drain even when the system is plugged in, Defendant's customer service representatives have advised customers that this is how the MacBook is designed and that there is no resolution for the issue.

Indeed, when Plaintiff himself contacted Defendant, as mentioned above, Plaintiff was transferred to a Senior Engineer Support Representative, who advised Plaintiff, via what Plaintiff believes was a scripted response, that "[t]his battery issue was expected behavior" and Defendant "[did] not have a fix."

Consequently, on September 9, 2011, Plaintiff initiated this action against Defendant in state court. Defendant subsequently removed the case to this Court, after which Plaintiff filed his FAC, alleging causes of action for: 1) Products Liability -Negligence; 2) Products Liability - Defect in Design, Manufacture, and Assembly; 3) Products Liability - Breach of Express and Implied Warranty; 4) Intentional Misrepresentation; 5) Negligent Misrepresentation; 6) Fraud and Concealment; 7) Violation of California's Unfair Competition Law, California Business & Professions Code § 17200 ("UCL"); 8) Violation of California's Consumers Legal Remedies Act, California Civil Code §§ 1750, et seq. ("CLRA"); and 9) Money Had and Received. On March 26, 2012, Defendant moved to dismiss Plaintiff's FAC. For the following reasons, Defendant's Motion is GRANTED with leave to amend.


On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),*fn4 all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. Id. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). The Court also is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal citations and quotations omitted).

"Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

Furthermore, "Rule 8(a)(2)...requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citation omitted). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at ...

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