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 UNITED STATES DISTRICT COURT  NORTHERN DISTRICT OF CALIFORNIA LISA TABAK, et al., Plaintiffs, v. APPLE, INC., Defendant. Case No. 19-cv-02455-JST
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
Re: ECF No. 37 In this proposed class action asserting consumer-protection and breach-of-warranty claims against Apple Inc. based on an alleged audio defect in the iPhone 7 and iPhone 7 Plus, Apple moves to dismiss all claims in the First Amended Class Action Complaint (
“
FAC
”
). Plaintiffs
1
 oppose the motion. The Court will grant the motion in part and deny it in part.
I.
 
BACKGROUND
For the purpose of deciding this motion, the Court accepts as true the following factual allegations from the FAC. Apple designs, manufactures, markets, and sells the iPhone 7 and the iPhone 7 Plus (
“
devices at issue
”
), which it released on September 16, 2016. FAC ¶ 64. The devices at issue suffer from
“
a material Audio IC Defect
”
 (
“
the audio defect
”
), which allegedly affects the functionality of the devices
’
 audio system, results in poor sound, and prevents users from making  phone calls and using the devices
’
 voice features, such as the Siri application.
 Id.
 ¶¶ 70-71, 75-76.
1
 Plaintiffs are Lisa Tabak, De
’
Jhontai Banks, David Danon, Brianna Castelli, Matthew White, Kelly Camelo-Cenicola, and Nestor Trujillo.
Case 4:19-cv-02455-JST Document 62 Filed 01/30/20 Page 1 of 29
 
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The audio defect is caused by the devices
’
 external casing and the location of the audio IC chip on their logic board. The devices
’
 external casing is insufficient and inadequate to protect the internal parts, including the audio IC chip, because it is
“
manufactured from substandard materials that are neither appropriate nor durable enough for the ordinary and expected use of the iPhone.
”
 
 Id.
 ¶¶ 71-73. The audio defect can be repaired by trained technicians by using a thin copper wire soldered from the audio IC chip to the logic board.
 Id.
 ¶ 81. Apple is aware, or should have been aware, of the audio defect because (1) consumers have posted complaints and descriptions of the defect on Apple
’
s website and other websites since December 2016; (2) consumers have communicated with Apple or its agents about issues caused  by the defect; (3) Apple conducts pre-release testing on the devices; (4) Apple distributed an internal document to authorized service providers that acknowledged the defect; (5) the iPhone 6 and iPhone 6 Plus suffered from an issue that was caused by similar problems with the housing of the devices; (6) there has been media coverage regarding the defect; and (7) Apple had, for a short  period of time in 2018, a non-publicized program for repairing devices that exhibited symptoms of the defect.
 Id.
 ¶¶ 82-96, 103-107. Apple has not communicated with consumers about the defect.
 Id.
 ¶ 98. Consumers have not had access to information about the defect and therefore have relied on Apple
’
s
“
representations and warranties regarding the quality, durability, and other material characteristics of the iPhones,
”
 presumably in deciding whether to purchase the devices.
 Id.
 101. Consumers of the devices at issue have incurred and continue to incur expenses to diagnose and repair the defect.
 Id.
 ¶ 100. Apple
’
s advertisements for the devices at issue state that their sound is louder and of a higher quality than that in prior versions of the iPhone.
 Id.
 ¶¶ 72, 74. The FAC lacks allegations as to when, where, or how these advertisements were disseminated, or which consumers or named  plaintiffs, if any, were exposed to or relied on them. The devices at issue are subject to an express warranty (
“
Limited Warranty
”
). FAC 120 (alleging that
“
Apple offers the following one-year warranty when a consumer purchases an iPhone 7 or iPhone 7 Plus
”
). This warranty states, in the first paragraph:
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IMPORTANT: BY USING YOUR iPHONE, iPAD, iPOD or APPLE TV PRODUCT YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THE APPLE ONE (1) YEAR LIMITED WARRANTY (
‘
WARRANTY
’
) AS SET OUT BELOW. DO NOT USE YOUR PRODUCT UNTIL YOU HAVE READ THE TERMS OF THE WARRANTY. IF YOU DO NOT AGREE TO THE TERMS OF THE WARRANTY, DO NOT USE THE PRODUCT AND
RETURN IT WITHIN THE RETURN PERIOD STATED IN APPLEʼS RETURN
 POLICY (FOUND AT www.apple.com/legal/sales_policies/) TO THE APPLE OWNED RETAIL STORE OR THE AUTHORIZED DISTRIBUTOR WHERE YOU PURCHASED IT FOR A REFUND. Amezcua Decl., Ex. A-C; ECF No. 37-2 at 2; ECF No. 37-3 at 2-3; ECF No. 37-4 at 2-3.
2
 The first page of the Limited Warranty contains the following disclaimer: TO THE EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. APPLE DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW. IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, APPLE LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT APPLE
’
S OPTION, THE REPAIR OR REPLACEMENT SERVICES DESCRIBED BELOW.
 Id.
The Limited Warranty also contains a one-year limitation for defects in
“
materials and workmanship,
”
 as follows: Apple Inc. of One Infinite Loop, Cupertino, California, U.S.A. 95014 (
‘
Apple
’
) warrants the Apple-branded iPhone, iPad, iPod or Apple TV hardware product and the Apple-branded accessories contained in the original packaging (
‘
Apple
2
 Apple requests that the Court consider various versions of the Limited Warranty, as well as the
“
safety information
”
 portion of the
“
user guide
”
 referenced in the Limited Warranty, on the grounds that these materials are incorporated by reference in the FAC and that they are subject to  judicial notice under Federal Rule of Evidence 201 because they are available on Apple
’
s website.
See
 Request for Judicial Notice, ECF No. 38 at 3-4;
see also
 Amezcua Decl., Ex. A, ECF No. 37-2 (limited warranty operative from February 4, 2016, to August 26, 2016); Amezcua Decl., Ex. B, ECF No. 37-3 (limited warranty operative from August 27, 2016, to July 12, 2018); Amezcua Decl., Ex. C, ECF No. 37-4 (limited warranty operative from July 13, 2018, to the present); Amezcua Decl., Ex. D, ECF No. 37-5 (user guide excerpt). Plaintiffs do not oppose this request, or otherwise contest the relevance or authenticity of the materials in question. The Court will consider these materials under the incorporation-by-reference doctrine because the FAC refers to the contents of these documents.
See
FAC ¶ 102;
see also
 
Coto Settlement v. Eisenberg
, 593 F.3d 1031, 1038 (9th Cir. 2010) (noting that the
“
doctrine of incorporation by reference
”
 permits a court to consider documents where
“
the contents of the document are alleged in a complaint
”
). Apple
’
s request for judicial notice is denied as moot.
Case 4:19-cv-02455-JST Document 62 Filed 01/30/20 Page 3 of 29
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