Demurrer

Cal. Super. - 6th Dist.November 5, 2020

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ZOCV3731 38 Santa Clara - Civil LEWIS & LLEWELLYN LLP Marc R. Lewis (Bar N0. 233306) mlewis@lewisllewellyn.com Daniel Jordan (Bar N0. 3 13543) dj0rdan@lewisllewellyn.com 601 Montgomery Street, Suite 2000 San Francisco, California 941 11 Telephone: (415) 800-0590 Facsimile: (415) 390-2127 Attorneys for Defendant APPLE INC. Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/30/2021 1:09 PM Reviewed By: F. Miller Case #20CV373138 Envelope: 6138575 SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION ENVIRODIGM, INC., a Delaware Corp., Plaintiff, V. APPLE INC.; and DOES 1 through 10, Defendants. Case N0. 20CV373 1 3 8 DEFENDANT APPLE INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF DANIEL JORDAN STATING COMPLIANCE WITH C.C.P. § 430.41 Hearing Date: May 6, 2021 Hearing Time: 9:00 am. Department: 2 Judge: Honorable Drew Takaichi Action Filed: November 5, 2020 Trial Date: Not Set NOTICE OF INTENT TO APPEAR BY TELEPHONE DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF DEMURRER AND DEMURRER TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT 0n May 6, 2021, at 9:00 a.m. in Department 2 of the Superior Court of the County of Santa Clara, Defendant Apple Inc. (“Apple”) will and hereby does demur t0 Plaintiff Envirodigm, Inc.’s (“Envirodigm”) entire First Amended Complaint (“FAC”). Apple’s demurrer is based on this notice, the following memorandum 0f points and authorities, the concurrently filed request for judicial notice, the concurrently filed declaration 0f Daniel Jordan and its exhibits, all pleadings and documents on file in this matter, and such oral or written evidence and argument as may be submitted t0 the Court in connection With this demurrer. DEMURRER Apple demurs t0 the entire FAC filed by Envirodigm and each cause of action alleged against it on the following grounds: DEMURRER TO THE ENTIRE FIRST AMENDED COMPLAINT 1. Apple demurs generally to the entire FAC because the pleading fails t0 state facts sufficient to state a cause 0f action. Cal. CiV. Proc. Code § 430.10(e). DEMURRER TO THE FIRST CAUSE OF ACTION (Breach of Contract) 2. Apple demurs generally t0 Envirodigm’s first cause 0f action for breach of contract because it fails t0 state facts sufficient t0 constitute a cause 0f action. Cal. Civ. Proc. Code § 430.10(e). DEMURRER TO THE SECOND CAUSE OF ACTION (Unjust Enrichment) 3. Apple demurs generally t0 Envirodigm’s second cause 0f action for unjust enrichment because it fails to state facts sufficient t0 constitute a cause of action. Cal. CiV. Proc. Code § 430.10(e). DEMURRER TO THE THIRD CAUSE OF ACTION (Violations 0f Unfair Competition Law) 4. Apple demurs generally to Envirodigm’s third cause 0f action for Violations of Unfair Competition Law because it fails to state facts sufficient t0 constitute a cause 0f action. Cal. Civ. 2 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proc. Code § 430.10(e). DEMURRER TO THE FOURTH CAUSE OF ACTION (Violations of Uniform Trade Secrets Act) 5. Apple demurs generally t0 Envirodigm’s fourth cause 0f action for Violations 0f California’s Uniform Trade Secrets Act because it fails t0 state facts sufficient t0 constitute a cause 0f action. Cal. CiV. Proc. Code § 430.10(e). DEMURRER TO THE FIFTH CAUSE OF ACTION (Fraud) 6. Apple demurs generally to Envirodigm’s fifth cause 0f action for fraud because it fails t0 state facts sufficient t0 constitute a cause 0f action. Cal. CiV. Proc. Code § 430.10(e). DEMURRER TO THE SIXTH CAUSE OF ACTION (Breach 0f Implied Covenant 0f Good Faith and Fair Dealing) 7. Apple demurs generally t0 Envirodigm’s fifth cause 0f action for breach of the implied covenant 0f good faith and fair dealing because it fails to state facts sufficient t0 constitute a cause 0f action. Cal. CiV. Proc. Code § 430.10(e). WHEREFORE, Apple requests that the Court sustain its demurrer without leave t0 amend and grant such other and further relief as may be just and proper. Dated: March 30, 2021 LEWIS & LLEWELLYN LLP By: /S/Marc R. Lewis Marc R. Lewis Attorneys for Defendant APPLE INC. 3 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DANIEL JORDAN PER C.C.P. S 430.41 I, Daniel Jordan, declare as follows: 1. I am an attorney licensed t0 practice before all courts in the State of California and am an associate at the law firm Lewis & Llewellyn LLP, counsel for Apple Inc. (“Apple”) in this matter. Ihave personal knowledge of the facts set forth below and, if called upon, could and would competently testify thereto. 2. I submit this declaration in support 0f Apple’s Demurrer t0 Plaintiff s First Amended Complaint (“FAC”). 3. Pursuant to California Code of Civil Procedure section 430.41(a)(3), 0n March 23, 2021, I emailed counsel for Envirodigm, Inc. (“Envirodigm”) seeking to meet and confer regarding the deficiencies in Envirodigm’s FAC. 4. On March 25, 2021, counsel for both parties met and conferred Via telephone conference to discuss the deficiencies in the FAC, and the parties did not reach an agreement resolving the obj ections raised in this demurrer. I declare under penalty of perjury under the laws of the State 0f California that the forgoing is true and correct. Executed on March 30, 2021, at San Francisco, California. By: /S/Daniel Jordan Daniel Jordan Attorney for Defendant APPLE INC. 4 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................................................... 9 II. PROCEDURAL BACKGROUND AND SUMMARY OF RELEVANT ALLEGATIONS IN THE COMPLAINT ............................................................................. 11 III. THE COURT SHOULD SUSTAIN APPLE’S DEMURRER WITH PREJUDICE ............. 14 A. THE FAC CANNOT SURVIVE DEMURRER. ..................................................... 14 B. ENVIRODIGM’S UNJUST ENRICHMENT, CUTSA, AND FRAUD CAUSES OF ACTION ARE ALL TIME-BARRED. ............................................. 15 C. CUTSA PREEMPTS ENVIRODIGM’S UNJUST ENRICHMENT, UCL, AND FRAUD CAUSES OF ACTION. ......................................................... 17 D. ENVIRODIGM’S CAUSES OF ACTION ALL FAIL FROM OTHER CRITICAL DEFECTS. ............................................................................................ 18 IV. CONCLUSION ...................................................................................................................... 23 5 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Pagegsl CASES Agair Inc. v. Shaeffer 232 Cal. App. 2d 513 (Ct. App. 1965) ........................................................................................... 15 Banner Entm ’t, Inc. v. Superior Court (Alchemy Filmworks, Inc.) 62 Cal. App. 4th 348 (1998) ........................................................................................................... 19 Careau & C0. v. Sec. Pac. Bus. Credit, Inc. 222 Cal. App. 3d 1371 (1990) ........................................................................................................ 20 Citizens ofHumam'ly, LLC v. Costco Wholesale Corp. 171 Cal. App. 4th 1 (2009) ............................................................................................................. 22 DeSario v. Walters Kluwer 2010 WL 11549534 (C.D. Cal. July 26, 2010) .............................................................................. 17 Designing Health, Inc. v. Erasmus 2000 WL 35789501 (C.D. Cal. Oct. 31, 2000) .............................................................................. 21 Diodes, Inc. v. Franzen 260 Cal. App. 2d 244 (1968) .......................................................................................................... 20 Farhang v. Indian Inst. 0fTech., Kharagpur 2010 WL 2228936 (N.D. Cal. June 1, 2010); .......................................................................... 17, 21 Fox v. Ethicon Endo-Surgery, Inc. 35 Cal. 4th 797 (2005) ........................................................................................................ 15, 16, 17 Freis v. Soborofl 81 Cal. App. 4th 1102 (2000) ......................................................................................................... 14 Goodman v. Kennedy 18 Cal. 3d 335 (1976) ..................................................................................................................... 15 Hamilton v. Greenwich Inv’rs XXVI, LLC 195 Cal. App. 4th 1602 (2011) ....................................................................................................... 21 Herman v. LA. Cty. Metro. Transp. Auth. 71 Cal. App. 4th 819 (1999) ........................................................................................................... 14 Igna v. City ofBaldwin Park 9 Cal. App. 3d 909 (1970) .............................................................................................................. 15 6 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jackson v. Doe 192 Cal. App. 4th 742 (201 1) ......................................................................................................... 14 Kwikset Corp. v. Superior Court 51 Cal.4th310 (2011) .............................................................................................................. 17,22 Magpali v. Farmers Grp., Inc. 48 Cal. App. 4th 471 (1996) ........................................................................................................... 22 Marin v. Jacuzzi 224 Cal. App. 2d 549 (1964) .......................................................................................................... 14 Mattel, Inc. v. MGA Entm ’t, Inc. 782 F. Supp. 2d 911 (C.D. Cal. 201 1) ............................................................................................ 18 Melchior v. New Line Prods., Inc. 106 Cal. App. 4th 779 (2003) ......................................................................................................... 23 NBCUniversal Media, LLC v. Superior Court 225 Cal. App. 4th 1222 (2014) ................................................................................................. 16, 17 Rakestraw v. Cal. Physicians ’ Serv. 81 Cal. App. 4th 39 (2000) ....................................................................................................... 14, 15 Service by Medallion, Inc. v. Clorox C0. 44 Cal. App. 4th 1807 (1996) ......................................................................................................... 15 Silvaco Data Sys. v. Intel Corp. 184 Cal. App. 4th 210 (2010) ......................................................................................................... 17 SOAProjects, Inc. v. SCMMicrosystems, Inc. 2010 WL 5069832, at *10 (N.D. Cal. Dec. 7, 2010) ...................................................................... 17 Stansfield v. Starkey 220 Cal. App. 3d 59 (Ct. App. 1990) ............................................................................................. 23 Synopsys, Inc. v. ATopTech, Inc. 2013 WL 5770542 (N.D. Cal. Oct. 24, 2013) .......................................................................... 20, 22 Washington v. Cty. ofContra Costa 38 Cal. App. 4th 890 (1995) ............................................................................................... 14, 20, 21 7 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATUTES Cal. Bus. & Prof. Code § 17200 .................................................................................................. passim CCP Code § 338 ................................................................................................................................ 15 CCP Code § 3426.6 ............................................................................................................................ 15 CCP Code § 3426.74 .......................................................................................................................... 17 CCP Code § 430.10(e) ........................................................................................................................ 14 Cal. CiV. Code §§ 3426.1 et seq. ................................................................................................. passim TREATISES 1 Witkin, Summary 11th Contracts § 189 (2020) .............................................................................. 19 OTHER AUTHORITIES Strategy Analytics: Global Smartphone Shipments Hit a Record 1.5 Billion Units in 2016 BUSINESS WIRE (January 3 1, 2017, 6:28 PM EST). ................................................................. 14, 16 8 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Envirodigm, Inc.’s (“Envirodigm”) First Amended Complaint (“FAC”) is its second toothless bite at Apple Inc. (“Apple”). Despite having Apple’s demurrer as a roadmap for curing the defects in its original complaint, the FAC is still nothing more than a meritless, time-barred lawsuit that fails t0 state a single Viable cause of action against Apple. While Envirodigm continues to assert several causes 0f action-including for breach of contract, trade secret misappropriation, fraud, Unfair Competition Law (“UCL”) Violations, and unjust enrichment-the gravamen of each is the contention that Apple stole a secret “anodization” process in 20 1 3 and then used it to manufacturer the iPhone 7, Which was publicly released in September 2016. Each of Envirodigm’s causes 0f action are defective for multiple reasons and, as already demonstrated by Envirodigm’s inability t0 cure the deficiencies in its original complaint, cannot be cured by amendment. First, all 0f Envirodigm’s causes 0f action accrued in September 2016 When, as the FAC acknowledges, the iPhone 7 was publicly released. Envirodigm nevertheless waited until November 2020-over four years later-to file its complaint. Because Envirodigm’s causes of action for unjust enrichment, trade secret misappropriation, and fraud all have three-year limitations periods, all three causes 0f action are time-barred.1 Envirodigm pleads n0 facts demonstrating any, let alone a legitimate, excuse for its untimely claims. Far from it: Envirodigm contends that its representative could tell from a cursory examination 0f the iPhone 7 during one Visit to a store that Apple had purportedly manufactured it using the secret anodization process. But despite this phone being easily accessible for such an examination since September 2016, Envirodigm did nothing t0 assert its rights until November 2020. The applicable statutes 0f limitations therefore bar Envirodigm’s stale causes of action. 1 Envirodigm’s remaining causes of action all have four-year limitations periods and would also be time-barred but for the application 0fEmergency Rule 9, which tolled “civil causes 0f action that exceed 180 days . . . from April 6, 2020, until October 1, 2020.” Envirodigm references this Rule for the first time in the FAC, neither Citing the Rule in its initial complaint nor raising it 0n the parties’ meet and confer regarding Apple’s prior demurrer. DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Second, Envirodigm’s unjust enrichment, UCL, and fraud causes 0f action separately fail, because they are preempted by California’s Uniform Trade Secret Act (“CUTSA”) as each are based 0n the same nucleus of facts as the trade secret misappropriation cause 0f action. The FAC alleges Apple (1) was unjustly enriched because the “information disclosed t0 Apple pursuant t0 the NDAS . . . were monetary benefits conferred upon” Apple (FAC 11 46 (emphasis added)); (2) violated the UCL by “deceptively and unfairly induc[ing] Plaintiff t0 disclose ‘know-how ’ and other information related t0 Plaintiff’s anodization processes” (id. 11 55 (emphasis added»; and (3) defrauded Envirodigm because it “represented it would maintain the confidentiality of information disclosed by Plaintifi’pursuant t0 the non-disclosure agreement.” Id. 1] 68 (emphasis added). CUTSA preempts these repackaged trade secret claims, and Envirodigm cannot plead any set of facts t0 overcome this result. Third, even setting aside the untimeliness and preemption, Envirodigm’s allegations all fail for various other reasons. Envirodigm fails t0 sufficiently plead the contents of any false statements, let alone the “who, what, when, Where, how” required t0 plead fraud. Similarly, Envirodigm’s description of its alleged trade secret-a “color anodization process” consisting of “Cleaning procedures and chemistry formulation details that comprised a superior . . . method for polished and pearlescent surface finishes that satisfied the hardness and scratch resistance requirements while also providing the multi-colored graphic anodize finish that Apple sought,” FAC 1N 29, 61-is vague and falls well short of the specificity required by California law. Indeed, Envirodigm provides n0 way for Apple t0 determine what makes its secret anodization process any different from those that, by Envirodigm’s own admission, “ha[ve] been used for industrial purposes for almost a century.” Id. 1] 60. Regarding Apple’s alleged breach 0f an NDA, Envirodigm alleges that 0n August 5, 2013, Apple sent Envirodigm “a new NDA” that “needs to be signed” and “returned [With] 2 originals With signatures” to a particular Apple employee at a specified address. Id. 1] 23; see also id., EX. A. Yet Envirodigm admits that it failed t0 accept the NDA in the manner demanded, allegedly handing a single signed copy of the NDA to a group of “Apple representatives” at a meeting. Id. fl 24. Additionally, the alleged “executed” NDA Envirodigm attaches to the FAC is missing Apple’s signature, conclusively showing there was n0 valid offer and acceptance 0f the NDA’s terms. Id., 10 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EX. A. Without a valid contract, Envirodigm’s cause of action for breach 0f the implied covenant 0f good faith and fair dealing also fails, because the prerequisite for any such action is the existence 0f a contractual relationship. Likewise, Envirodigm’s UCL cause of action fails because Envirodigm fails to plead any underlying conduct that is unlawful, unfair, or fraudulent, as the UCL requires. Finally, Envirodigm’s cause of action for unjust enrichment fails because n0 such cause of action exists in California. Because all 0f Envirodigm’s amended causes 0f action are still time-barred, preempted by CUTSA, and continue to suffer from the same critical defects Apple identified in its prior demurrer, any third attempt at pleading would be futile and the Court should sustain Apple’s demurrer Without leave to amend. II. PROCEDURAL BACKGROUND AND SUMMARY OF RELEVANT ALLEGATIONS IN THE COMPLAINT2 Envirodigm filed its original complaint 0n November 5, 2020. That complaint did not include the purported 2013 NDA between Apple and Envirodigm and consisted of even thinner contract, fraud, and trade secret misappropriation allegations than the FAC. During the parties’ meet and confer for Apple’s prior demurrer, Envirodigm stood by its complaint and rejected Apple’s obj ections that the allegations failed to state a cause 0f action against Apple. Envirodigm’s refusal t0 resolve Apple’s objections outside of court-the very purpose of the demurrer meet and confer requirement-forced Apple t0 waste needless hours and resources t0 submit its obj ections t0 this Court, Which it did in its January 11, 2021 demurrer. Nearly two months later, 0n March 1, 2021, Envirodigm inexplicably recanted its belief that its allegations were sufficient as pled and filed the FAC, including a few minor adjustments to its causes 0f action aimed at overcoming Apple’s demurrer. Specifically, the FAC (1) now attaches as an exhibit the purported 2013 NDA at issue, despite being unsigned by Apple; (2) adds more conclusory allegations 0f the alleged trade secret misappropriation and fraud; (3) alleges Envirodigm did not discover Apple’s alleged use 0f its confidential information until conducting a Google search in late July 2017, where previously 2 Although courts accept allegations as true for purposes 0f sustaining a demurrer, Apple disputes the allegations in the FAC. 1 1 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Envirodigm alleged that it discovered the wrongdoing While Visiting a store “[flollowing” the March 21, 2017 release of the (PRODUCT)RED iPhone 7; and (4) for the first time raises the argument that Emergency Rule 9 saves each 0f its causes 0f action from their respective statutes of limitations. As discussed more fully below, none 0f these changes are sufficient t0 withstand demurrer. Anodizing has been used for industrial purposes for almost a century. FAC 11 60. According t0 Envirodigm, by October 2012, Apple was using such a process in manufacturing the aluminum surfaces 0f its iPhone devices, which included “dipping the aluminum into a bath of chemicals and running an electric current through it, which helps t0 protect the metal against corrosion and makes it easier t0 adhere color.” Id. 1] 11. After it allegedly noticed scuffing on its aluminum surfaces, Apple contacted Shawn Sahbari, the then-CEO 0f Applied Chemical Laboratories (“ACL”). Apple allegedly wanted to “fix this [scuffing] problem” and Mr. Sahbari was “a leading industry expert” in “surface preparation and cleaning.” Id. W 12-13. ACL is a separate entity from, and alleged predecessor t0, Envirodigm. Id. 1] 4. Before any discussions began, Envirodigm alleges Apple employee, Greg Gentile, emailed ACL requiring it t0 execute Apple’s NDA “by filing [sic] out the blanks and signing TWO originals and returning t0 my attention.”3 Id. 1] 16. Envirodigm does not allege that it was a signatory t0 the 2012 NDA 0r that the 2012 NDA was assigned t0 any other party, including itself. Instead, Envirodigm bases all of its causes 0f action on the information Envirodigm allegedly disclosed t0 Apple pursuant to a different NDA that Apple and Envirodigm allegedly entered in August 2013. Id. W 23-24, 29. Prior t0 an August 14, 2013 meeting, Envirodigm alleges Mr. Gentile “noted” that “since Sahbari’s company name had changed (t0 Envirodigm), ‘a new NDA needs t0 be signed.” Id. 11 23. As with the prior NDA with ACL, Mr. Gentile required Envirodigm t0 “return 2 originals with signatures t0 my address.” 1d,, Ex. A. In response, Envirodigm alleges only that Envirodigm returned a single signed copy of the NDA to “Apple representatives,” not Mr. Gentile, at the August 14, 2013 meeting. Id. 11 24. Envirodigm does not allege that Apple ever 3 Envirodigm neither attaches the November 30, 2012 NDA t0 the FAC nor states its terms in full. 12 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 signed the NDA, and the “executed” NDA attached to the FAC does not contain a signature from Apple.4 Nevertheless, Envirodigm alleges it disclosed at the August 14, 2013 meeting the “cleaning procedures and chemistry formulation details that comprised a superior . . . method for polished and pearlescent surface finishes that satisfied the hardness and scratch resistance requirements while also providing the multi-colored graphic anodize finish that Apple sought” that constitute the alleged trade secrets at issue in this dispute. Id. W 24, 61. Envirodigm provides no further description 0f its alleged trade secrets, Which at its core is n0 different from how the anodizing industry describes any generic anodizing process: “Anodizing is an electrochemical process that converts the metal surface into a decorative, durable, corrosion-resistant, anodic oxide finish. . . . This aluminum oxide is not applied to the surface like paint or plating, but is fully integrated with the underlying aluminum substrate, so it cannot chip or peel. It has a highly ordered, porous structure that allows for secondary processes such as coloring and sealing.” See Request for Judicial Notice, EX. A. Envirodigm alleges there were no further communications between itself and Apple about the anodization process save for two logistical emails. FACW 25-28. Envirodigm alleges Apple later used its anodization process t0 manufacture the iPhone 7, which was publicly released in September 2016-we11 over four years before Envirodigm filed this lawsuit. Envirodigm then alleges in conclusory terms that, because it does not “own[ ] an iPhone and does not follow Apple products as a consumer,” it did not discover or “reasonably suspect” that iPhone 7 used its anodization process until noticing the (PRODUCT)RED iPhone 7, released in March 2017, While “conducting a Google search related t0 other matters” months later in July 2017-Well over three years before Envirodigm filed this lawsuit. Id. 1H 30-33. The FAC provides no plausible explanation for why Envirodigm could not reasonably suspect Apple’s use 0f its alleged confidential process during the six months between the September 2016 release 0f iPhone 7-Which 4 Although successfully locating the 2012 NDA with ACL, Apple has yet to locate any NDA With Envirodigm, let alone one signed by either Envirodigm 0r Apple, despite conducting a diligent search. 13 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 included devices in a variety 0fnew colors that were not redS-and the (PRODUCT)RED version’s release in March 2017, let alone why it took until July 2017 to even notice the (PRODUCT)RED version. In fact, the allegations in the Complaint demonstrate precisely the opposite: Envirodigm claims it needed only “see[ ]” an iPhone 7 device in the store to determine whether Apple had used its “confidential” anodizing process. Id. 1] 3 1. Nothing prevented Envirodigm from Visiting a store t0 make this determination following iPhone 7’s Widespread public release in September 2016, 0r simply noticing any one 0f the 39 million iPhone devices in public circulation by January 1, 2017. Id. 1] 34 n.2 (citing Strategy Analytics, Strategy Analytics: Global Smartphone Shipments Hit a Record 1.5 Billion Units in 2016, BUSINESS WIRE (January 3 1, 2017, 6:28 PM EST)). III. THE COURT SHOULD SUSTAIN APPLE’S DEMURRER WITH PREJUDICE A. The FAC Cannot Survive Demurrer. “A demurrer properly is granted When the pleadings fail to state facts sufficient to constitute a cause of action.” Washington v. CZy. ofContra Costa, 38 Cal. App. 4th 890, 895 (1995); Cal. CiV. Proc. Code § 430. 10(6). To survive demurrer, “the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action.” Rakestraw v. Cal. Physicians ’ Sew, 81 Cal. App. 4th 39, 43 (2000). When ruling on a demurrer, a court considers the face of the pleading and facts of which it may take judicial notice. Jackson v. Doe, 192 Cal. App. 4th 742, 751 (201 1). And although the Court must accept as true all material factual allegations in the FAC at the demurrer stage, it need not accept contentions, deductions, 0r conclusions of fact 0r law. Herman v. L.A. Cly. Metro. Transp. Auth, 71 Cal. App. 4th 819, 824 (1999); Freis v. Soborofl, 81 Cal. App. 4th 1102, 1104 (2000). In other words, statements that are vague, conclusory, and void 0f factual specifics are insufficient t0 survive demurrer. See Rakestraw, 81 Cal. App. 4th at 43-44. Likewise, a complaint that shows 0n its face that it is barred by the applicable statute of limitations cannot escape demurrer. Jackson v. Doe, 192 Cal. App. 4th 742, 751 (201 1). The Court may sustain a demurrer Without leave to amend when, as here, “the complaint cannot be amended to state a cause of action.” Marin v. Jacuzzi, 224 Cal. App. 2d 549, 552 (1964); 5 Apple released its iPhone 7 t0 immediate Wide-spread publicity about its new colors, surface, and durability. See Request for Judicial Notice, Exs. B-C. 14 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 see also Service by Medallion, Inc. v. Clorox C0., 44 Cal. App. 4th 1807, 1819 (1996) (granting defendant’s demurrer Without leave t0 amend where the court could “perceive n0 reasonable possibility that the defects in the complaint can be cured by amendment”); Igna v. City ofBaldwin Park, 9 Cal. App. 3d 909, 915 (1970) (“Leave t0 amend is appropriately withheld where it is clear 9” that plaintiff is seeking the ‘legally impossible. ) (internal citations omitted). And When a demurrer is sustained, “[t]he burden 0f showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintifflj” Rakestraw, 81 Cal. App. 4th at 44. T0 satisfy this burden, a plaintiff “must show in What manner [it] can amend [its] complaint and how that amendment Will change the legal effect of [its] pleading.” Goodman v. Kennedy, 18 Cal. 3d 335, 349 (1976). As set forth below, Envirodigm’s FAC fails t0 plead a cause 0f action against Apple for multiple independent reasons. B. Envirodigm’s Unjust Enrichment, CUTSA, and Fraud Causes of Action Are All Time-Barred. Envirodigm’s causes of action for unjust enrichment, trade secret misappropriation, and fraud are all subject t0 a three-year statute of limitations. See Cal. Civ. Proc. Code § 338(d) (three- year limitations period for fraud); Cal. CiV. Code § 3426.6 (three-year limitations period for trade secret misappropriation); Agair Inc. v. Shaefler, 232 Cal. App. 2d 513, 517 (Ct. App. 1965) (three- year limitations period for unjust enrichment grounded in fraud). Envirodigm’s causes 0f action accrued, at the latest, in September 2016, When, according t0 the FAC, Apple publicly released its iPhone 7 that it allegedly manufactured using the confidential process at issue in this litigation. Nevertheless, Envirodigm waited over four years, until November 2020, t0 assert its causes of action that are each based upon the core claim that Apple somehow improperly used Envirodigm’s confidential process to manufacture the iPhone 7. Accordingly, these three causes of action are time-barred. Fox v. Ethicon Endo-Surgery, Ina, 35 Cal. 4th 797, 806 (2005) (“A plaintiff must bring a claim within the limitations period after accrual 0f the cause 0f action”). Understanding that each 0f these causes 0f action are time-barred, Envirodigm tries-and fails-to allege facts t0 support application of the delayed-discovery rule t0 push back the triggering 1 5 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 date to “the last part of July 2017,” ten months after the iPhone 7’s September 2016 release, in a conspicuous attempt to fit the boundaries of Emergency Rule 9’s tolling provisions. FAC 1] 3 1. But the delayed-discovery rule cannot apply here: Envirodigm pleads n0 facts showing that, despite its reasonable diligence, it was unable t0 suspect Apple’s alleged wrongdoing at any time during those ten months. In fact, Envirodigm fails t0 allege any diligence whatsoever. The discovery rule delays the limitations period t0 the point When the plaintiff “suspects or should suspect that [its] injury was caused by wrongdoing.” NBCUniversal Media, LLC v. Superior Court, 225 Cal. App. 4th 1222, 1236 (2014). T0 take advantage of the discovery rule, Envirodigm “must specifically plead facts to show (1) the time and manner 0f discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” Fox, 35 Cal. 4th at 808 (emphasis added). It is Envirodigm’s burden t0 “show diligence” and “conclusory allegations will not withstand demurrer.” Id. Additionally, courts assess reasonable diligence through the eyes 0f a person With plaintiff s actual skill level and will only apply the discovery rule “when it is particularly difficult for the plaintiff to observe or understand” the defendant’s wrongdoing. NBCUniversal Media, LLC, 225 Cal. App. 4th at 1232. Envirodigm falls far short from meeting its burden here. Specifically, Envirodigm fails t0 plead any facts showing that (i) Envirodigm was “reasonabl[y] diligen[t]” in investigating the iPhone 7 in the ten months after its Widespread public release in September 2016 or (ii) circumstances made it “particularly difficult” t0 observe Apple’s alleged wrongdoing. In fact, it is just the opposite-by Envirodigm’s own admission it, a “leader in the . . . surface preparation and cleaning” industry, only needed to “see[ ] the . . . iPhone 7” during a single Visit t0 “a retail store” to suspect the product 0f using its secret anodization process. FAC 1N 13, 3 1. And even before Visiting a store, nothing prevented Envirodigm from noticing the widespread public release 0f the iPhone 7 0r any one 0f the 39 million devices Apple sold prior to January 1, 2017, none of which required Envirodigm t0 “own[ ] an iPhone” 0r “follow Apple products as a consumer.” Id. W 31, 34 n.2 (citing Strategy Analytics, Strategy Analytics: Global Smartphone Shipments Hit a Record 1.5 Billion Units in 2016, BUSINESS WIRE (January 31, 2017, 6:28 PM EST)). Additionally, without any explanation whatsoever for why the red color is s0 special, Envirodigm relies on a single conclusory allegation to support its diligence, alleging that because of 1 6 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the “lack 0f color” 0n the iPhone 7 versions released in September 2016 “it was not apparent to Sahbari, and Sahbari did not reasonably suspect, that [it] may also have utilized the anodizing process that Sahbari had confidentially discussed With Apple.” Id. fl 33. But, Without more, Apple and this Court are left t0 guess as t0 Why it was reasonable for Mr. Sahbari t0 not suspect that the confidential process was used in connection with the non-red iPhone 7 devices released in September 2016, especially given that the devices were available in a variety 0f other colors. See Request for Judicial Notice, Exs. B-C. This is the very type 0f “conclusory allegation[ ]” the Fox court held “Will not Withstand demurrer.” Fox, 35 Cal. 4th at 808; see also NBCUniversal Media, LLC, 225 Cal. App. 4th at 1234 (“The mere fact that [plaintiff] did not personally View the program until sometime after the first broadcast is irrelevant, as the discovery rule does not operate t0 delay accrual of a cause of action beyond the point at which their factual basis became accessible t0 plaintiff t0 the same degree as it was accessible t0 every other member 0f the public.”) (internal quotation marks omitted). C. CUTSA Preempts Envirodigm’s Unjust Enrichment, UCL, and Fraud Causes 0f Action. Envirodigm’s causes 0f action for unjust enrichment, UCL Violations, and fraud all fail as preempted by CUTSA. CUTSA preempts tort causes 0f action-including unjust enrichment, UCL Violations, and fraud-that are based 0n the same nucleus 0f facts as the alleged trade secret misappropriation. Silvaco Data Sys. v. Intel Corp, 184 Cal. App. 4th 210, 232, 241 (2010) (“UCL claim [that] depend[s] 0n the misappropriation 0f a trade secret” is “superseded by CUTSA”), disapproved 0n other grounds by Kwikset Corp. v. Superior Court, 5 1 Cal. 4th 3 10 (201 1); see also Cal. CiV. Code § 3426.74; SOAProjects, Inc. v. SCMMicrosystems, Ina, 2010 WL 5069832, at *10 (N.D. Cal. Dec. 7, 2010) (applying CUTSA preemption to bar recovery for unjust enrichment); DeSario v. Walters Kluwer, 2010 WL 11549534, at *2 11.4 (C.D. Cal. July 26, 2010) (applying Silvaco Data Systems t0 find plaintiff” s fraud claims preempted by CUTSA). Courts interpret the “based 0n” language broadly and have held that a cause 0f action cannot escape CUTSA preemption merely because it alleges new facts, different damages, 0r a different theory 0f liability. Farhang v. Indian Inst. 0fTech., Kharagpur, 2010 WL 2228936, at *11 (N.D. Cal. June 1, 2010); see also 17 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mattel, Inc. v. MGA Entm ’t, Ina, 782 F. Supp. 2d 91 1, 987 (CD. Cal. 201 1) (“[C]UTSA supersedes claims based 0n the misappropriation of confidential information, whether 0r not that information meets the statutory definition 0f a trade secret”). Here, Envirodigm’s unjust enrichment, UCL, and fraud causes 0f action are all based 0n identical facts as those underlying the alleged trade secret misappropriation. Envirodigm alleges Apple misappropriated its trade secrets When it used Envirodigm’s confidential “cleaning procedures and chemistry formulation details that comprised a superior . . . method for polished and pearlescent surface finishes that satisfied the hardness and scratch resistance requirements while also providing the multi-colored graphic anodize finish that Apple sought” in Violation 0f the NDA and “without Plaintiff” s consent.” FACW 61-62. This allegation underpins every cause 0f action in the FAC, and Envirodigm’s unjust enrichment, UCL, and fraud causes 0f action are no exception. Compare id. with id. 1] 46 (alleging unjust enrichment because “[t]he information disclosed t0 Apple pursuant to the NDAs . . . were monetary benefits conferred upon Defendant by Plaintiff”); id. 1] 55 (alleging UCL Violation because “Apple deceptively and unfairly induced Plaintiff t0 disclose ‘know-how’ and other information related t0 Plaintiff’ s anodization processes, including the color anodization process disclosed pursuant to the non-disclosure agreement”); id. W 68, 71 (alleging fraud because “Apple represented it would maintain the confidentiality of information disclosed by Plaintiff pursuant to the non-disclosure agreement, and that Apple would not use the information disclosed Without Plaintiff s consent 0r t0 the exclusion 0f Plaintif ,” and Envirodigm allegedly sustained damages by “Apple’s subsequent use 0f the confidential information”). CUTSA preempts these causes 0f action, and there are no set 0f facts Envirodigm could plead t0 overcome this. D. Envirodigm’s Causes 0f Action All Fail from Other Critical Defects. Even setting aside the statutes 0f limitations and CUTSA preemption, Envirodigm’s causes of action all fail for various other reasons. The breach ofcontract action failsf Apple argued in its prior demurrer that there was no 6 In its concurrently filed motion t0 strike, Apple alternatively argues that, should the Court find that 18 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enforceable NDA between it and Envirodigm, and now the FAC confirms it. Envirodigm apparently alleges that the purported August 5, 2013 email from Mr. Gentile attaching an unsigned NDA constituted an offer t0 Envirodigm, Which it could accept only by “return[ing] 2 originals With signatures to [his] address below,” after Which Apple, too, would need t0 sign the NDA as evidenced by the blank signature line below Apple’s name and the request for two original documents-one that each party could retain once fully executed. FAC, EX. A. But Envirodigm admittedly did not communicate its acceptance t0 Mr. Gentile in the prescribed manner (nor any other manner); rather, Envirodigm alleges that it provided only one “signed copy of the non- disclosure agreement” t0 “Apple representatives,” not Mr. Gentile, at an August 14, 2013 meeting. Id. 11 24. Envirodigm’s non-conforming manner of communicating its “acceptance” did not suffice t0 create a valid contract between itself and Apple. 1 Witkin, Summary 11th Contracts § 189 (2020) (“The manner in Which acceptance is to be communicated may be specified in the offer, in Which case n0 other will suffice.”); see also Banner Entm ’t, Inc. v. Superior Court (Alchemy Filmworks, Ina), 62 Cal. App. 4th 348, 359 (1998), as modified (Mar. 30, 1998) (“It is essential to the existence 0f every contract that there should be a reciprocal assent to a definite proposition, and when the parties to a proposed contract have themselves fixed the manner in which their assent is to be manifested, an assent thereto, in any other 0r different mode, Will not be presumed”). Likewise, Envirodigm does not allege Apple ever executed the NDA as required; indeed, the NDA it attached for the first time to the FAC is conspicuously missing Apple’s signature. See, e.g., Banner Entm ’t, Ina, 62 Cal. App. 4th at 358 (“When it is clear . . . from a provision that the proposed written contract would become operative only When signed by the parties . . . , the failure to sign the agreement means no binding contract was created”). The breach 0fthe implied covenant ofgoodfaith andfair dealing action fails. the NDA exists, then its five-year confidentiality term has expired, and any relief should be limited t0 prior t0 August 14, 2018, z'.e., five years after the alleged disclosure at issue. The finding that the NDA does not exist, however, dooms more than Envirodigm’s breach of contract and implied covenant claims. Without an NDA, Envirodigm has effectively admitted that it disclosed its alleged trade secrets to Apple without any obligation to maintain its confidentiality, thereby further undercutting any claim that Envirodigm owns any protected trade secret, even if it could sufficiently describe it. 19 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Envirodigm’s failure to plead the existence of an enforceable contract also dooms its cause of action for breach of the implied covenant of good faith and fair dealing, which requires the existence of a contractual relationship. Smith v. City & CZy. ofSan Francisco, 225 Cal. App. 3d 38, 49 (1990) (“The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence 0f a contractual relationship between the parties, since the covenant is an implied term in the contract”). Furthermore, “[i]f the allegations do not g0 beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages 0r other relief already claimed in a companion contract cause 0f action, they may be disregarded as superfluous as no additional claim is actually stated.” Careau & C0. v. Sec. Pac. Bus. Credit, Ina, 222 Cal. App. 3d 1371, 1395 (1990). Envirodigm’s implied covenant cause 0f action is merely an improper repackaging 0f Envirodigm’s failed breach of contract cause 0f action. Compare FAC fl 75 (alleging Apple breached the implied covenant of good faith and fair dealing “by using information disclosed pursuant t0 the non-disclosure agreement t0 the exclusion of Plaintiff”) with id. 1] 41 (alleging Apple breached the NDA because “Apple used the confidential information disclosed by Plaintiff t0 design, manufacture and sell products, including but not limited t0 iPhones and iPads products” and “did so Without Plaintiff s consent and to the exclusion of Plaintiff”). Accordingly, this cause of action fails for the additional reason that it is superfluous. The CUTSA action fails. Envirodigm does not sufficiently allege the particular information that constitutes its trade secrets. To survive demurrer, the FAC must “describe the subj ect matter 0f the trade secret With sufficient particularity to separate it from matters 0f general knowledge in the trade 0r of special knowledge of those persons Who are skilled in the trade, and to permit the defendant to ascertain at least the boundaries Within Which the secret lies.” Diodes, Inc. v. Franzen, 260 Cal. App. 2d 244, 253 (1968). And if the claimed trade secret is a manufacturing process, like Envirodigm’s “anodization process” here, “the plaintiff must not only identify the end product manufactured, but also supply sufficient data concerning the process . . . to give both the court and the defendant reasonable notice 0f the issues . . . .” 1d,; see also Synopsys, Inc. v. ATopTech, Ina, 2013 WL 5770542, at *6-7 (ND. Cal. Oct. 24, 2013) (dismissing plaintiff’s trade secret claim for failing to sufficiently identify the alleged trade secret); Designing Health, Inc. v. Erasmus, 2000 WL 20 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35789501, at *9-10 (C.D. Cal. Oct. 31, 2000) (same). Envirodigm alleges that its confidential anodization process, including “cleaning procedures and chemistry formulation details that comprised a superior . . . method for polished and pearlescent surface finishes that satisfied the hardness and scratch resistance requirements while also providing the multi-colored graphic anodize finish that Apple sought” constitutes its trade secret. FAC 1] 61. But, Without more, there is n0 way for the Court or Apple t0 know what particular aspect of the cleaning and anodization processes constitutes Envirodigm’s trade secrets. Envirodigm’s vague description 0f its anodization process is particularly troublesome because, by Envirodigm’s own admission, Apple was already using an anodization process as early as 2012 (before it ever allegedly spoke With either ACL or Envirodigm), id. 1] 11, and various anodization processes have “been used for industrial purposes for almost a century,” id. fl 60, including those With near-identical descriptions as Envirodigm’s. See Request for Judicial Notice, EX. A. Envirodigm’s general description 0f the purported trade secrets falls well short 0f the specificity needed to state a trade secret cause of action. See, e.g., Farhang, 2010 WL 2228936, at *13 (concluding plaintiff’s description 0f the alleged trade secret as “core technology” that “enable[ed] fluid mobile access to data on handheld devices, including dynamic real-time access and parsing 0f data that is not dependent upon continuous wireless data connection” was, standing alone, “‘insufficient”). Thefraud action fails. Envirodigm does not sufficiently allege any fraudulent statement made by Apple. In California, “fraud must be pled specifically; general and conclusory allegations d0 not suffice.” Hamilton v. Greenwich Inv’rs XXVI, LLC, 195 Cal. App. 4th 1602, 1614 (201 1) (internal citations and quotation marks omitted). Because 0f this “particularity requirement,” a plaintiff must plead “facts which show how, When, where, t0 Whom, and by What means the representations were tendered.” Id. (emphasis in original) (internal citations and quotation marks omitted); see also Vaughn v. Certified Life Ins. C0. 0fCal., 238 Cal. App. 2d 177, 182 (1965) (affirming demurrer because complaint simply referred t0 “said representations” as fraudulent but “nowhere directly state[d] what those representations were”). The plaintiff bears an even heavier burden When it alleges fraud by a corporate defendant, like Apple here; “the plaintiff must further allege the names of the persons Who made the representations, their authority t0 speak, to whom 2 1 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they spoke, what they said 0r wrote, and When it was said 0r written.” Citizens ofHumanily, LLC v. Costco Wholesale Corp, 171 Cal. App. 4th 1, 20 (2009), disapproved 0n other grounds by Kwikset Corp, 51 Cal. 4th 310. Here, Envirodigm alleges that “Apple committed fraud by making false representations it would not use information provided by Envirodigm (including ‘know-how’ concerning the distinctive anodizing polish and microetch process developed by Envirodigm) to the exclusion 0f Envirodigm”, and “[t]hese representations were made at meetings between the parties in 2013 by Apple representatives attending those meetings, including Greg Gentile and Rebecca Gilden.” FAC 1] 67. But the FAC does not identify any other “Apple representatives” and is devoid 0f any concrete allegation as t0 What either Mr. Gentile or Ms. Gilden said, precisely When 0r at what meetings they said it, or t0 Whom at Envirodigm such alleged false representations were made. The conclusory allegations d0 not end there. T0 demonstrate falsity, Envirodigm merely alleges that “Apple knew such representations were false” when made, which is particularly problematic given the length of time between Apple’s alleged false promise and Violation: assuming a promise was made, Apple admittedly fulfilled its promise to “not use information provided by Envirodigm” until the iPhone 7’s release in September 2016-three years after the alleged misrepresentations in 2013. Magpali v. Farmers Grp., Ina, 48 Cal. App. 4th 471, 481 (1996), as modified 0n denial afreh ’g (Aug. 20, 1996) (holding n0 evidence to support claim that a promise was false When made Where the promise was kept for “multiple years”); see also Stansfield v. Starkey, 220 Cal. App. 3d 59, 75 (Ct. App. 1990) (affirming demurrer Without leave t0 amend t0 fraud cause of action). For these reasons, the FAC does not sufficiently plead any fraud by Apple. The UCL action fails. T0 plead a UCL cause of action, Envirodigm must plead an underlying “unlawful, unfair or fraudulent business act” by Apple. Cal. Bus. & Prof. Code § 17200; see also Synopsys, Ina, 2013 WL 5770542, at *14. Here, the only act Envirodigm identifies is the alleged “false promises” that, as already shown above, Envirodigm failed t0 sufficiently plead. Accordingly, Envirodigm’s UCL cause 0f action also fails. The unjust enrichment action fails. Courts have held that California law does not recognize a cause 0f action for unjust enrichment: “The phrase “Unjust Enrichment’ does not describe a theory 22 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of recovery, but an effect; . . . [it] is a general principle, underlying various legal doctrines and remedies, rather than a remedy itself.” Melchior v. New Line Prods., Ina, 106 Cal. App. 4th 779, 793 (2003) (internal citations omitted). Therefore, Envirodigm’s separate cause of action for unjust enrichment also fails because it is not a cognizable cause of action under California law. IV. CONCLUSION Envirodigm sat 0n its rights for over four years only to assert defective causes 0f action that are time-barred, preempted, and fall well-short 0f meeting the requisite pleading standards. Based on these three incurable defects, Apple respectfully requests that the Court sustain with prejudice its demurrer t0 Envirodigm’s FAC, its second failed attempt at pleading a cause 0f action against Apple. Dated: March 30, 2021 LEWIS & LLEWELLYN LLP By: /S/Marc R. Lewis Marc R. Lewis Attorneys for Defendant APPLE INC. 23 DEFENDANT APPLE INC.’S DEMURRER TO FAC CASE NO. 20CV373 1 38