Gjovik v. Apple Inc.

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ASHLEY M GJOVIK, Plaintiff, v. APPLE INC., Defendant.

No. 23-cv-04597-EMC

United States District Court, N.D. California

October 1, 2024

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS; DENYING DEFENDANT'S MOTION TO STRIKE; AND GRANTING PLAINTIFF'S MOTION TO STRIKE DOCKET NOS. 78-79, 101

EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

Plaintiff Ashley Gjovik, proceeding pro se,^[1] is a former employee of Defendant Apple, Inc. She started to work for Apple in February 2015 and was ultimately terminated on September 9 2021. On September 7, 2023, about two years after she was fired, she initiated this lawsuit. In the operative fourth amended complaint (“4AC”), Ms. Gjovik asserts thirteen different claims against Apple, all predicated on state law. For the most part, the claims fall into two basic categories: (1) Apple engaged in environmentally unsafe conduct that harmed Ms. Gjovik and (2) Apple retaliated against Ms. Gjovik - including by terminating her from employment - because she complained about certain company conduct, including but not limited to environmentally unsafe conduct.

Now pending before the Court are three motions: (1) a motion to dismiss filed by Apple, targeted at eleven of the thirteen claims (either in whole or in part); (2) a motion to strike filed by Apple; and (3) a motion to strike filed by Ms Gjovik. Having considered the parties' briefs and accompanying submissions, the Court hereby GRANTS in part and DENIES in part Apple's motion to dismiss, DENIES Apple's motion strike, and GRANTS Ms. Gjovik's motion to strike.

I. FACTUAL & PROCEDURAL BACKGROUND

The factual allegations in the 4AC largely replicate the factual allegations in the prior third amended complaint (“TAC”). As the Court stated in its prior order, the main categories of alleged misconduct by Apple are as follows:

(1) During her employment with Apple, Ms. Gjovik lived in an apartment near an Apple factory (known as the ARIA factory) and became ill because the factory released toxic substances into the environment.

(2) Ms. Gjovik's office at Apple (known as Stewart 1) was located on a contaminated site subject to EPA regulation, i.e., a Superfund site, and she became ill because of Apple's actions/omissions related to the site.

(3) Apple made employees, including Ms. Gjovik, participate in studies related to Apple products that were invasive to their privacy.

(4) Apple retaliated against Ms. Gjovik for making complaints about harassment and environmental safety. Ms. Gjovik's complaints included internal complaints, complaints to governmental agencies, complaints to the press, and complaints made in social media. The retaliation by Apple included but was not limited to the termination of Ms. Gjovik from employment.

Docket No. 73 (Order at 2).

Based on, inter alia, the above allegations, Ms. Gjovik asserts the following causes of action in the 4AC:

(1) Wrongful termination in violation of public policy.

(2) Violation of the California Whistleblower Act. See, e.g., Cal. Lab. Code § 1102.5(b) (providing that an employer “shall not retaliate against an employee for disclosing information . . . to [inter alia] a government or law enforcement agency [or] to a person with authority over the employee . . . if the employee has reasonable cause to believe that the information discloses a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation”).

(3) Violation of California Labor Code § 6310. See, e.g., id. § 6310(a) (providing o that “[n]o person shall discharge or in any manner discriminate against any employee because the employee has [e.g.] [m]ade any oral or written complaint to the [Division of Occupational Safety and Health] [or] other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health”).

(4) Violation of California Labor Code § 6399.7. See id. § 6399.7 (providing, inter alia, that “[n]o person shall discharge or in any manner discriminate against, any employee because such employee has filed any complaint . . . under or related to the provisions of this chapter [i.e., the Hazardous Substances Information and Training Act]”).

(5) Violation of California Labor Code § 98.6. See id. § 98.6(a) (providing that “[a] person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee . . . because the employee . . . engaged in any conduct delineated in this chapter . . . or because the employee . . . has filed a bona fide complaint or claim . . . under or relating to their rights that are under the jurisdiction of the Labor Commissioner . . . or because of the exercise by the employee . . . on behalf of themselves or others of any rights afforded them”).

(6) Violation of California Labor Code §§ 232, 232.5, 1101, and 1102. See id. § 232 (providing, inter alia, that an employer may not “[r]equire, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages”); id. § 232.5 (providing, inter alia, that an employer may not “[r]equire, as a condition of employment, that an employee refrain from disclosing information about the employer's working conditions”); id. § 1101 (providing, inter alia, that an employer shall not “make, adopt, or enforce any rule, regulation or policy . . . [c]ontrolling or directing, or tending to control or direct the political activities or affiliations of employees”); id. § 1102 (providing that “[n]o employer shall coerce or influence . . . his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity”).

(7) Violation of California Labor Code § 96(k). See id. § 96(k) (providing that the Labor Commissioner “shall, upon the filing of a claim therefor by an employee, . . . take assignments of . . . [c]laims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises”).

(8) Breach of the implied covenant of good faith and fair dealing.

(9) Violation of California Business & Professions Code § 17200.

(10) Intentional infliction of emotional distress - “traditional.”

(11) Creation and maintenance of a private nuisance at the ARIA factory.

(12) Strict liability for ultrahazardous activities at the ARIA factory.

(13) Intentional infliction of emotional distress - fear of cancer.

Apple has challenged all of the above claims, either in whole or in part, except for the first and third causes of action.

II. DISCUSSION

A. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). See Fed.R.Civ.P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff's “factual allegations [in the complaint] ‘must . . . suggest that the claim has at least a plausible chance of success.'” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.”^[2] Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).

B. Rule 12(g)(2)

Before the Court considers the specific arguments made by Apple in its motion, and Ms. Gjovik's responses thereto, it notes that there is a procedural matter that affects several, although not all, claims. Specifically, in the pending motion to dismiss, which targets the 4AC, Apple makes arguments that it could have made in its prior motion to dismiss the TAC but did not.

Notably, this includes challenges to claims pled in the 4AC that Apple did not challenge when pled in the prior TAC (e.g., the claim that the ARIA factory constituted a private nuisance and the claim that Apple violated certain protections provided by California Labor Code §§ 232 and 232.5).

Ms Gjovik argues that any of these arguments that could have been made, but were not, should be entirely disregarded. In support, she cites Federal Rule of Civil Procedure 12(g)(2). That rule provides as follows: “Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” Fed.R.Civ.P. 12(g)(2). The exception identified in Rule 12(h)(2) provides: “[f]ailure to state a claim upon which relief can be granted . . . may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion...