Request Judicial NoticeCal. Super. - 6th Dist.November 5, 202010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V3731 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 C0rp., Plaintiff, V. APPLE INC.; and DOES 1 through 10, Defendants. Case N0. 20CV373 1 3 8 DEFENDANT APPLE INC.’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS DEMURRER Hearing Date: Hearing Time: Department: Judge: Action Filed: Trial Date: May 6, 2021 9:00 a.m. 2 Honorable Drew Takaichi November 5, 2020 Not Set NOTICE OF INTENT TO APPEAR BY TELEPHONE DEFENDANT APPLE’S REQUEST FOR JUDICIAL NOTICE ISO ITS DEMURRER CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Apple Inc. (“Apple”) through its attorneys 0f record, requests that the Court take judicial notice pursuant t0 Evidence Code section 452 of the following documents in support 0f its Demurrer t0 Plaintiff Envirodigm, Inc.’s (“Envirodigm”) First Amended Complaint (the “Demurrer”): 1. The webpage titled “What is Anodizing?” published by the Aluminum Anodizers Council and captured on December 3, 2020, attached as Exhibit A t0 the declaration of Daniel Jordan in support of the Demurrer and this Request for Judicial Notice (the “Jordan Declaration”); 2. The press release titled “Apple introduces iPhone 7 & iPhone 7 Plus, the best, most advanced iPhone ever” published by Apple 0n September 7, 2016, attached as Exhibit B to the Jordan Declaration; and 3. The article titled “BEHOLD: Big, beautiful photos 0f the iPhone 7” written by Alex Heath and published by Business Insider 0n September 7, 2016, attached as Exhibit C t0 the Jordan Declaration. The Court may properly take judicial notice 0f Exhibits A through C (collectively, the “publication materials”) pursuant to Evidence Code section 452(h). As explained in Scott v. JPMorgan Chase Bank, NA, this section permits the Court to take judicial notice of “facts and propositions that are not reasonably subj ect t0 dispute and are capable of immediate and accurate determination by resort t0 sources 0f reasonably indisputable accuracy.” 214 Cal. App. 4th 743, 753 (2013), as modified 0n denial afreh ’g (Apr. 16, 2013). Courts regularly take judicial notice of the existence and content 0f newspaper articles and internet posts, Where, as here, the materials are being used t0 demonstrate the public availability 0f such content, not its truth. See, e.g., Seelig v. Infinity Broadcasting Broad. Corp, 97 Cal. App. 4th 798, 807 n.5 (2002) (taking judicial notice 0f news articles discussing the reality television show “Who Wants t0 Marry a MultiMillionaire?” Where judicial notice was intended to establish that the program was a matter 0f Widespread public interest); McKelvey v. Boeing NAm., Ina, 74 Cal. App. 4th 15 1, 162 (1999) (discussing propriety 0f taking judicial notice 0fnews articles and transcripts of radio and television broadcasts “t0 show the extent of the Widespread publicity” of an incident to demonstrate that plaintiff had notice before the 2 DEFENDANT APPLE’S REQUEST FOR JUDICIAL NOTICE ISO ITS DEMURRER CASE NO. 20CV373 1 38 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statute of limitations expired); see also Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 1573 n.2 (2005) (taking judicial notice 0f the fact that respondent maintains a web site and of “various computer printouts from [respondent’s] web site and [a] Yahoo! Message board”). Here, Apple does not cite any of the publication materials to establish the truth 0f their contents. For example, Apple cites the Aluminum Anodizers Council webpage “What is Anodizing?” (Exhibit A) because it contains a description of generic anodizing processes, Which is similar t0 the description 0f Envirodigm’s alleged trade secrets, demonstrating the difficulty for Apple and the Court t0 determine what particular information Envirodigm claims as its trade secrets. See Dem. at 13, 21; see also Jordan Decl., EX. A. It fillfills its purpose even ifAluminum Anodizers Council’s description is false. Likewise, Apple cites the press release and online news articles from September 2016 (Exhibits B and C) t0 show the public availability that, as of September 2016, Apple was advertising that iPhone 7 devices were available in a variety ofnew colors. See Dem. at 14 n.5, 17; see also Jordan Decl., Exs. B-C. Because Envirodigm alleges that it was the red color on the iPhone 7 that made it first suspect that Apple was using its secret anodizing process, Envirodigm should have suspected Apple’s alleged wrongdoing in September 2016 based 0n the Widespread publicity 0f the iPhone 7’s other colors, regardless 0fwhether the information in the publication martials is true. Accordingly, the Court should take judicial notice 0f the existence 0f the publication materials. Dated: March 30, 2021 LEWIS & LLEWELLYN LLP By: /s/Marc R. Lewis Marc R. Lewis Attorneys for Defendant APPLE INC. 3 DEFENDANT APPLE’S REQUEST FOR JUDICIAL NOTICE ISO ITS DEMURRER CASE NO. 20CV373 1 38