Exhibit,Appendix: MARK L JOHNSON-HAMMER ET AL VS. NECTAR BRAND LLC ET AL

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TYLER G, NEWBY (CSB No. 205790)
tnewby@fenwick.com

MOLLY R. MELCHER (CSB No. 272950)
mmelcher@fenwick.com

MARA LUDMER (CSB No. 307662)
mludmer@fenwick.com

FENWICK & WEST LLP

555 California Street, 12th Floor

San Francisco, CA 94104

Telephone: 415.875.2300

Facsimile: 415.281.1350

Attorneys for Defendants

NECTAR BRAND LLC, DREAMCLOUD
HOLDINGS LLC, AND DREAMCLOUD
BRAND LLC

ELECTRONICALLY

FILED

Superior Court of Catifornia,
County of San Francisco

04/03/2019
Clerk of the Court
BY:BOWMAN LIU

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

MARK L. JOHNSON-HAMMER, and
SHAVONNE M. SOLIS, individually and on
behalf of others similarly situated,

Plaintiffs,
v.
NECTAR BRAND LLC, DREAMCLOUD
HOLDINGS LLC, and DREAMCLOUD
BRAND LLC,

Defendants.

Case No.: CGC-19-572607
CLASS ACTION

APPENDIX OF NON-CALIFORNIA
AUTHORITIES IN SUPPORT OF
DEFENDANTS DREAMCLOUD
BRAND LLC’S AND DREAMCLOUD
HOLDINGS LLC’S DEMURRER TO
PLAINTIFFS MARK L. JOHNSON-
HAMMER AND SHAVONNE M.
SOLIS’S UNVERIFIED COMPLAINT

Date: June 3, 2019

Time: 9:30 a.m.

Ctrm: Dept. 305

Judge: Hon. Mary E. Wiss

Complaint Filed: January 7, 2019

APPENDIX OF NON-CALIFORNIA
AUTHORITIES IN SUPPORT OF DFS”
DEMURRER TO COMPLAINT

CASE NO.: CGC-19-572607Fanwick & West LLP

Artonnys AT LAW.

Pursuant to California Rule of Court 3.1113(i), Defendants DreamCloud Brand LLC, and

DreamCloud Holdings LLC submit this Appendix of Non-California Authorities in support of

Defendants’ Demurrer to Plaintiffs Mark L. Johnson-Hammer and Shavonne M., Solis’s

Unverified Complaint.

TABLE OF NON-CALIFORNIA AUTHORITIES

AUTHORITIES EXHIBIT
Birdsong v. Apple, Inc., 590 F.3d 955 (9th Cir. 2009) A
NetApp, Inc. v. Nimble Storage, Inc., No. 5:13-cv-05058, 2015 WL B
400251 (N.D. Cal. Jan. 29, 2015)

Nissim v, Wells Fargo Bank, N.A., No. 4:12-cv-01201, 2013 WL 192903 c
(N.D. Cal. Jan. 17, 2013)

Openwave Messaging, Inc. v. Open-Xchange, Inc., Case No. 16-cv- D
00253-WHO, 2018 WL 2117424 (N.D. Cal. May 8, 2018)

Ranza v. Nike, Inc., 793 F.3d 1059 (9th Cir. 2015) E

Dated: April 3, 2019

FENWICK & WEST LLP

Attomeys for Defendants

NECTAR BRAND LLC, DREAMCLOUD
HOLDINGS LLC, and DREAMCLOUD
BRAND LLC

APPENDIX OF NON-CALIFORNIA.
AUTHORITIES IN SUPPORT OF DFS’
DEMURRER TO COMPLAINT

CASE NO.: CGC-19-572607EXHIBIT ABirdsong v. Apple, Inc., 590 F.3d 955 (2009)

71 UCC Rep.Serv.2d 976, 09 Cal. Daily Op. Serv. 15,361, 09 Cal. Daily Op. Serv. 18,087

KeyCite Yellow Flag - Negative Treatment
Distinguished by Degelmann v, Advanced Medical Optics, Ine., 9th
Cir.(Cal.), September 28, 2011

590 F.3d 955
United States Court of Appeals,
Ninth Circuit.

Joseph BIRDSONG, Individually and on Behalf of
Others Similarly Situated; Bruce Waggoner,
Individually and on Behalf of Others Similarly
Situated, Plaintiffs—Appellants,

v.

APPLE, INC., Defendant—Appellee.

No. 08-16641.
|
Argued and Submitted Oct. 8, 2009.

|
Filed Dec. 30, 2009.

Synopsis

Background: Consumers brought class action lawsuit
against manufacturer of digital audio player, alleging that
it was defective because of risk of noise-induced hearing
loss to users, and asserting claims for breach of express
warranty, breach of implied warranty of merchantability
and fitness for particular purpose, violation of California's
Unfair Competition Law (UCL), and related claims. The
United States District Court for the Northern District of
California, James Ware, J., dismissed action. Consumers
appealed.

Holdings: The Court of Appeals, Thompson, Senior
Circuit Judge, held that:

allegations did not state claim for breach of implied
warranty of merchantability, under California law, and

consumers lacked standing to assert claims under
California’s UCL

Affirmed.
Attorneys and Law Firms

*956 Jeff D. Friedman, Berkeley, CA, for the
plaintiffs-appellants,

David Bernick, New York, NY, for the
defendant-appellee.

Appeal from the United States District Court for the
Northern District of California, James Ware, District
Judge, Presiding. D.C. No. 5:06-CV-02280-JW.

Before: J. CLIFFORD WALLACE, DAVID R.
THOMPSON and SIDNEY R. THOMAS, Circuit Judges.

Opinion

THOMPSON, Senior Circuit Judge:

Plaintiffs-appellants Joseph Birdsong and Bruce
Waggoner (collectively, the “plaintiffs”) filed a class
action complaint claiming that defendant-appellee Apple,
Inc.’s (“Apple”) iPod is defective because it poses an
unreasonable risk of noise-induced hearing loss to its
users. The plaintiffs appeal the district court’s dismissal
of their third amended complaint. The district *957 court
determined that the plaintiffs failed to state claims for
breach of the implicd warranty of merchantability and
fitness for a particular purpose, and that they lacked
standing to assert a claim under California's Unfair
Competition Law (“UCL”).

We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.

Background

Apple’s iPod is an electronic device which stores and
plays digital audio files. Each iPod comes with a set of
detachable “earbud” headphones. The iPod can be used
without its earbud headphones to play music through
different headphones. According to the third amended
complaint, iPods have the capability of producing sounds
as loud as 115 decibels. Apple includes a warning with
each iPod:

Avoid Hearing Damage

Warning: Permanent hearing loss may occur if
earphones or headphones are used at high volume.Birdsong v. Apple, Inc., 590 F.3d 955 (2009)

71 UCC Rep.Serv.2d 976, 09 Cal. Daily Op. Serv. 15,361, 09 Cal. Daily Op. Serv. 18,087

You can adapt over time to a higher volume of
sound, which may sound normal but can be
damaging to your hearing. Set your iPod’s volume to
a safe level before that happens. If you experience
ringing in your ears, reduce the volume or
discontinue use of your iPod.

Apple also provided warnings on its website.

Birdsong bought an Apple iPod in May 2005 and another
in October 2005. Waggoner bought an Apple iPod in
January 2005 and, six months later, a set of
noise-canceling headphones to be used with his iPod.

Birdsong, a Louisiana resident, filed this action in the
Western District of Louisiana, seeking to represent a
state-wide class of iPod consumers. The case was
transferred to the Northern District of California on the
parties’ joint motion pursuant to 28 U.S.C, § 1404(a).
Birdsong then filed a first amended complaint asserting
claims under California law. Apple moved to dismiss the
first amended complaint and Birdsong responded by filing
a second amended complaint. Apple then moved to
partially dismiss the second amended complaint. The
district court granted Apple’s motion, and granted
Birdsong leave to amend.

Waggoner, a California resident, then joined Birdsong in
filing a third amended complaint against Apple, alleging
claims for (1) breach of express warranty, Cal. Com.Code
§ 2313; (2) breach of the implied warranty of
merchantability, Cal, Com.Code § 2314; (3) breach of the
implied warranty of fitness for a particular purpose, Cal.
Com.Code § 2315; (4) violation of the California UCL,
Cal. Bus. and Prof Code §§ 17220 et seq.; (5) violations
of California’s Song-Beverly Consumer Warranty Act,
Cal. Civ.Code §§ 1790 et seq.; and (6) violations of the
federal Magnuson—Moss Warranty Act, 15 U.S.C. §§
2301 et seq. Birdsong and Waggoner purported to
represent a nationwide class of iPod purchasers. The
district court dismissed the third amended complaint, and
Birdsong and Waggoner appeal.

*958 IT

Implied Warranty of Merchantability

The California Commercial Code implies a warranty of
merchantability that goods “[a]re fit for ordinary purposes
for which such goods are used.” Cal. Com.Code §

2314(2)(c)2 The implied warranty “provides for a
minimum level of quality.” Am. Suzuki Motor Corp. v.
Superior Court, 37 Cal.App.4th 1291, 1296, 44
Cal .Rptr.2d 526 (Cal.Ct.App. 1995) (quotation omitted). A
breach of the warranty of merchantability occurs if the
product lacks “even the most basic degree of fitness for
ordinary use.” Mocek v. Alfa Leisure, Inc. 114
Cal.App.4th 402, 406, 7 Cal.Rptr.3d 546
(Cal.Ct.App.2003) (citing Cal. Com.Code § 2314(2)).

The plaintiffs argue the district court erred in
determining that the third amended complaint failed to
sufficiently plead an implied warranty claim. They
alleged that the iPod (1) comes with “stock ear buds ...
designed to be placed deep into the ear canal rather than
over the ears, which increases the danger of hearing
damage,” (2) lacks “noise isolating or cancelling
properties,” and (3) lacks any volume meter that will
inform users they are listening at dangerous levels.

The plaintiffs contend the district court failed to take their
factual allegations as true, and instead made its own
counter-findings that any dangers of hearing loss were
“obvious” and “avoidable.” The district court also
determined the danger of hearing loss did not exist unless
the consumer decided to use the iPod “in an extreme

way.

The district court did not err. The plaintiffs admit that the
iPod has an “ordinary purpose of listening to music,” and
nothing they allege suggests iPods are unsafe for that use
or defective. The plaintiffs recognize that iPods play
music, have an adjustable volume, and transmit sound
through earbuds. The third amended complaint includes
statements that (1) the iPod is capable of playing 115
decibels of sound; (2) consumers may listen at unsafe
levels; and (3) iPod batteries can last 12 to 14 hours and
are rechargeable, giving users the opportunity to listen for
long periods of time. Taken as true, such statements
suggest only that users have the option of using an iPod in
a risky manner, not that the product lacks any minimum
level of quality. See Am. Suzuki, 37 Cal.App.4th at 1296,
44 Cal _Rptr.2d 526.

The plaintiffs rely upon Hicks v. Kaufinan & Broad Home
Corp, 89 Cal.App.4th 908, 107 Cal.Rptr.2d 761
(Cal.Ct.App.2001), but that case is distinguishable. In
Hicks, homeowners brought a putative class action *959
alleging a defect in the foundations of their homes. The
defect arose from the use of a material called Fibermesh,
which, according to the homeowners, caused their
foundations to “crack badly” and resulted in “insect and
vermin infestation, bumps in the floor and premature
wearing of carpeting.” /d. at 923, 107 Cal.Rptr.2d 761.Birdsong v. Apple, Inc., 590 F.3d 955 (2009)

71 UCC Rep.Serv.2d 976, 09 Cal. Daily Op. Serv. 15,361, 09 Cal. Daily Op. Serv. 18,087

Although some of the foundations had not yet cracked,
the court cited expert testimony suggesting that the cracks
were “most likely” to develop, and stated, “We see no
reason why a homeowner should have to wait for the
inevitable injuries to occur before recovering damages to
repair the defect and prevent injuries from occurring.” Id.
at 923, 107 Cal.Rptr.2d 761.

The Hicks plaintiffs identified the defect in the
foundations, which was the use of Fibermesh, and the
injury inevitably caused by that defect, a cracked
foundation. /d. Hicks distinguished cases in which “there
was no history of the products failing.” /d.

In the present case, the plaintiffs make no allegations of
any history of malfunction, but merely suggest possible
changes to the iPod which they believe would make the
product safer: (1) earbuds with noise-reduction features;
(2) volume control software: (3) more and different
warnings printed onto the actual iPod; and (4) a digital
meter to display the output volume in decibels. The
plaintiffs fail to allege, however, how the absence of their
suggested changes caused any user an injury. The
plaintiffs do not allege the iPods failed to do anything
they were designed to do nor do they allege that they, or
any others, have suffered or are substantially certain to
suffer inevitable hearing loss or other injury from iPod
use. Cf. Hicks, 89 Cal.App.4th at 923, 107 Cal.Rptr.2d
761. Accordingly, the district court correctly determined
that the plaintiffs failed to allege sufficiently the breach of
an implied warranty of merchantability. See id.; Am.
Suzuki, 37 Cal.App.4th at 1298, 44 Cal.Rptr.2d 526.

Il

Express Warranty and Implied Warranty of Fitness for a
Particular Purpose

The plaintiffs’ third amended complaint alleged claims
for breach of an express warranty and breach of the
implied warranty of fitness for a particular purpose.
However, the plaintiffs have apparently abandoned those
claims on appeal, as their opening brief contains no
discussion of them. “We review only issues which are
argued specifically and distinctly in a party’s opening
brief ... We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim,
particularly when, as here, a host of other issues are
presented for review.” Greenwood v. Fed. Aviation
Admin., 28 F.3d 971, 977 (9th Cir.1994), Thus, we affirm

the district court’s dismissal of those claims.

California's Unfair Competition Law

California’s UCL prohibits unfair competition by means
of any unlawful, unfair or fraudulent business practice.
Cal. Bus. & Prof.Code §§ 17200-17210. Each prong of
the UCL is a separate and distinct theory of liability.
Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th
Cir.2009).

To have standing under California’s UCL, as amended
by California’s Proposition 64, plaintiffs must establish
that they (1) suffered an injury in fact and (2) lost money
or property as a result of the unfair competition. Cal. Bus.
& Prof.Code § 17204; Walker v. Geico Gen. Ins. Co., 558
F.3d 1025, 1027 (9th Cir.2009). “In approving
Proposition 64, the California *960 voters declared their
intent ‘to prohibit private attorneys from filing lawsuits
for unfair competition where they have no client who has
been injured in fact wider the standing requirements of
the United States Constitution.’ ” Buckland v. Threshold
Enters., Ltd., 155 Cal.App.4th 798, 814, 66 Cal.Rptr.3d
543 (Cal.Ct-App.2007) (quoting Prop. 64, § 1, (e))
(emphasis in original). Thus, to plead a UCL claim, the
plaintiffs must show, consistent with Article III, that they
suffered a distinct and palpable injury as a result of the
alleged unlawful or unfair conduct. Buckland, 155
Cal.App.4th at 814, 66 Cal.Rptr.3d 543 (quoting Havens
Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct.
1114, 71 L.Ed.2d 214 (1982)) (internal quotation marks
omitted). The requisite injury must be “an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural
or hypothetical.” Buckland, 155 Cal.App4th at 814, 66
Cal.Rptr.3d 543 (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Bd.2d 351
(1992)) (internal quotation marks omitted).

The plaintiffs contend the district court erred in
dismissing their UCL claims for lack of standing.’ The
plaintiffs maintain they alleged that they suffered an
injury in fact and argue the district court incorrectly
required a showing of reliance to satisfy the UCL’s
requirement that they must have lost money or property as
a result of Apple’s conduct. Cal. Bus. & Prof.Code §
17204, Because we conclude that the plaintiffs have not
alleged the requisite injury in fact to have standing, andBirdsong v. Apple, Inc., 590 F.3d 955 (2009)

71 UCC Rep.Serv.2d 976, 09 Cal. Daily Op. Serv. 15,361, 09 Cal. Daily Op. Serv. 18,087

affirm the district court’s decision on that basis, we need
not decide whether the district court erred in requiring an
allegation of reliance, or resolve, more broadly, what
standard of causation applies under the UCL.*

1. The Plaintiffs Have Not Alleged An Injury To
Themselves

The plaintiffs do not claim that they suffered or
imminently will suffer hearing loss from their iPod use.
The plaintiffs do not even claim that they used their iPods
in a way that exposed them to the alleged risk of hearing
loss. At most, the plaintiffs plead a potential risk of
hearing loss not to themselves, but to other unidentified
iPod users who might choose to use their iPods in an
unsafe manner. The risk of injury the plaintiffs allege is
not concrete and particularized as to themselves. See
Lujan, 504 U.S. at 561 n. 1, 112 S.Ct. 2130 (“By
particularized, we mean that the injury must affect the
plaintiff in a personal and individual way.”); *961 Warth
v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d
343 (1975) (“[T]he plaintiff still must allege a distinct and
palpable injury io himself; even if it is an injury shared by
a large class of other possible litigants.”) (emphasis
added). The plaintiffs do not dispute this deficiency or
claim that they can amend their pleading to include
allegations that they were exposed to the risk of hearing
loss based on their iPod use.

The plaintiffs have not shown the requisite injury to
themselves and therefore lack standing. See id.; Cal. Bus.
& Prof.Code §§ 17203-17204 (authorizing representative
UCL claims on behalf of others only if the claimant meets
the standing requirements, including injury in fact);
Buckland, 155 Cal.App.4th at 812, 66 Cal.Rptr.3d 543
(noting that California Proposition 64 requires plaintiffs
pursuing representative claims to meet the new standing
requirements).

2. The Alleged Injury Is Hypothetical
Although the plaintiffs allege that Apple has sold more
than 100 million iPods, they do not claim that they, or
anyone else, have suffered or are substantially certain to
suffer hearing loss from using an iPod. As discussed
above, as a result of this omission, the plaintiffs fail to
state an implied warranty claim, and they have no
standing to assert a UCL claim. The plaintiffs simply do
not plead facts showing that hearing loss from iPod use is
actual or imminent, as required. Buckland, 155
Cal.App.4th at 814, 66 Cal.Rptr.3d 543. To the contrary,
the plaintiffs’ third amended complaint reveals the
conjectural and hypothetical nature of the alleged injury

as the plaintiffs merely assert that some iPods have the
“capability” of producing unsafe levels of sound and that
consumers “may” listen to their iPods at unsafe levels
combined with an “ability” to listen for long periods of
time.

3. The Alleged Economic Harm Does Not Constitute An

Injury In Fact
The plaintiffs claim that the iPod’s inherent risk of
hearing loss has reduced the value of their iPods and
deprived them of the full benefit of their bargain because
they cannot “safely” listen to music. The plaintiffs do not
contend in this appeal that such alleged economic harm
satisfies the injury in fact requirement. Instead, the
plaintiffs contend this alleged loss satisfies the second
part of the UCL’s standing test—that they lost money or
property as a result of Apple’s unfair acts. Cal. Bus. &
Prof.Code § 17204.

The plaintiffs’ alleged economic harm centers on their
claim that the iPod has a defect (an inherent risk of
hearing loss), which caused their iPods to be worth less
than what they paid for them. But the plaintiffs have
failed to allege a cognizable defect under any of their
asserted claims. Further, the alleged loss in value does not
constitute a distinct and palpable injury that is actual or
imminent because it rests on a hypothetical risk of hearing
loss to other consumers who may or may not choose to
use their iPods in a risky manner.

The plaintiffs’ benefit of the bargain theory fares no
better. They have not alleged that they were deprived of
an agreed-upon benefit in purchasing their iPods. The
plaintiffs do not allege that Apple made any
representations that iPod users could safely listen to music
at high volumes for extended periods of time. In fact, the
plaintiffs admit that Apple provided a warning against
listening to music at loud volumes. The plaintiffs’ alleged
injury in fact is premised on the loss of a “safety” benefit
that was not part of the bargain to begin with. See Animal
Legal Defense Fund y. Mendes, 160 Cal.App.4th 136,
146-47, 72 Cal-Rptr.3d 553 (Cal.Ct.App.2008) (rejecting
plaintiffs’ benefit of the *962 bargain theory because the
plaintiffs “d[id] not allege any false or misleading
representations that could be said to have become part of
the purchase and sale agreement”). Cf Lozano v. AT & T
Wireless Servs., Inc., 504 F.3d 718, 734 (9th Cir.2007)
(holding that the plaintiff established an injury in fact
where he did not receive the full number of agreed-upon
minutes he purchased in a wireless agreement); Daghlian
v. DeVry Univ. Inc, 461 F.Supp.2d 1121, 1156
(C.D.Cal.2006).Birdsong v. Apple, Inc., 590 F.3d 955 (2009)
71 UCC Rep Serv.2d 976, 09 Cal. Daily Op. Serv. 15,361, 09 Cal. Daily Op. Serv. 18,087

The district court did not err in dismis
third amended complaint. The plaintiffs failed to plead

merchantability and they lacked standing to assert a claim
under the UCL.

v AFFIRMED.

Conclusion All Citations

590 F.3d 955, 71 UCC Rep.Sery.2d 976, 09 Cal. Daily
Op. Serv. 15,361, 09 Cal. Daily Op. Serv. 18,087

ing the plaintiffs’

sufficiently a claim for breach of implied warranty of

Footnotes

n

The parties do not dispute that the district court had subject matter jurisdiction over the class action. We agree. The district court
had original jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Plaintiffs action satisfied
CAFA’s amount in controversy, numerosity and minimal diversity requirements. See Lowdermilk v. U.S. Bank Nat'l Ass'n, 479
F.3d 994, 997 (9th Cir.2007); Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 683 (9th Cir.2006). Additionally, seetion
1332(d)’s enumerated exceptions to federal jurisdiction do not apply. See 28 U.S.C. §§ 1332(d)(4)(A)-(B).

The substantive elements are the same under the Song-Beverly Act and Magnuson—Moss Act. Cal. Civ.Code §§ 1791, et seg.; 15
US.C. § 2301, et seg. Under both, the court applies state warranty law. 15 U.S.C. $§ 2301(7), 2310(d)(1); see Dominguez v. Am.
Suzuki Motor Corp., 160 Cal.App.4th 53, 58, 72 Cal.Rptr.3d 354 (2008); see Milicevie v. Fletcher Jones Imports, Ltd., 402 F.3d
912, 918 (9th Cir.2005). State law requires that the goods (1) pass without objection in the trade under the contract description; (2)
are fit for the ordinary purposes for which those goods are used; (3) are adequately contained, packaged, and labeled; and (4)
conform to the promises or affirmation of fact made on the container or label. Cal. Civ.Code § 1791.1. Both parties agree that the
plaintiffs” claims under California’s Song—Beverly Consumer Warranty Act, Cal. Ciy.Code §§ 1790 et seq. and the federal
Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. require the plaintiffs to plead successfully a breach of state warranty
law. Thus, because we conclude that the plaintiffs have failed to state a claim for breach of an express or implied warranty, their
claims under these two statutes are also properly dismissed.

The plaintiffs assert claims under the UCL’s “unlawful” and “unfair” prongs. As a threshold matter, the plaintiffs cannot state a
UCL claim under the “unlawful” prong because such a claim is predicated solely on implied warranty violations of the law, which
they failed to allege. See Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir.2007) (noting that the alleged
conduct “must violate a law ... in order for Plaintiffs to state a claim for relief under Section 17200’s ‘unlawful’ prong”).

In addition to meeting the UCL’s standing requirements, the plaintiffs must also satisfy the federal standing requirements under
Article IIL. See Cantrell v. City of Long Beach, 241 F.3d 674, 683 (9th Cir.2001) (holding that a party asserting state law claims in
federal court “must meet the stricter federal standing requirements of Article III”); Lee v. Am. Nat. Ins. Co., 260 F.3d 997, 1001-02
(th Cir.2001). Because we conclude the plaintiffs lack standing under the UCL, we need not reach the question whether they have
standing under Article III. We note that insofar as the UCL incorporates Article III's injury in fact requirement, see Buckland, 155
Cal.App.4th at 814, 66 Cal.Rptr.3d 543, the plaintiffs would lack an Article IIT injury in fact for the same reasons discussed below.

End of Document 2019 Thomson Reuters. No claim to orig

ual U.S. Government Works.EXHIBIT BNetApp, Inc. v. Nimble Storage, Inc., Not Reported in F.Supp.3d (2015)

H KeyCite history available

2015 WL 400251
Only the Westlaw citation is currently available.
United States District Court,
N.D. California,
San Jose Division.

NetApp, Inc., Plaintiff,
v.
Nimble Storage, Inc., Michael Reynolds, an
individual, and Does 1-50, Defendants.

Case No.: 5:13-CV-05058-LHK (HRL)

|
Signed January 29, 2015,

Attorneys and Law Firms

Daniel Todd McCloskey, Greenberg Traurig, LLP, David
T. Xue, Patrick Shaw Salceda, Karineh Khachatourian,
Duane Morris LLP, Palo Alto, CA, for Plaintiff.

Patrick Eugene Premo, Fenwick & West LLP, Mountain
View, CA, Sebastian Elan Kaplan, Fenwick and West
LLP, San Francisco, CA, Jaideep Venkatesan, Daniel J.
Bergeson, Grace Y. Park, Bergeson, LLP, San Jose, CA,
for Defendants.

ORDER GRANTING IN PART AND DENYING IN
PART MOTION TO DISMISS, AND GRANTING
MOTION TO STRIKE

LUCY H. KOH, District Judge

*1 Plaintiff NetApp, Inc. (“NetApp”) has filed this suit
against Defendants Nimble Storage, Inc. (“Nimble”), and
Michael Reynolds_—_(“Reynolds”)_—_ (collectively,
“Defendants”). See ECF No. 71 (Second Am. Compl.).
Defendants move to dismiss all the claims that NetApp
asserts against Nimble and Reynolds, except for a state
law breach of contract claim and claims under 18 U.S.C
§§ 1030(a)(2)(C) and (a)(4). See ECF No. 74
(“Mot.Dismiss”). Defendants also move to strike certain
factual allegations and a cause of action in NetApp’s
Second Amended Complaint. See ECF No. 73

(“Mot.Strike”). NetApp has opposed both motions.
Having considered the parties’ briefing, the record in this
case, and the applicable law, the Court GRANTS IN
PART AND DENIES IN PART the motion to dismiss
and GRANTS the motion to strike, for the reasons stated
below.

I. BACKGROUND

A. The Parties’ Relationship
NetApp and Nimble are competing companies in the data
storage industry. Second Am. Compl. § 21. Defendant
Reynolds is an Australian citizen and resident who works
at Nimble Storage Australia Pty Limited (“Nimble
AUS”), an entity related to Defendant Nimble. Id. 5-6.
This lawsuit stems from NetApp’s belief that “Nimble
targeted NetApp talent and valuable confidential and
non-confidential information to compete unfairly in the
marketplace.” /d. 27. NetApp alleges that “Nimble has
achieved rapid growth and customer adoption” by
“rely[ing] heavily on foundational information as to the
internal working of NetApp’s products and its proprietary
business processes.” Id. § 21.

According to NetApp, Reynolds previously worked at
Thomas Duryea Consulting (“TDC”), an “IT
infrastructure consultancy business” in Australia. /d. 435.
NetApp contracted with TDC for certain services,
provided Reynolds with access to NetApp’s computer
systems, and offered Reynolds training courses available
to NetApp employees, all subject to NetApp’s restrictions
on unauthorized access to and use of its systems. Id. $f]
37-42. Reynolds left TDC in April 2013, and took a job
with Nimble AUS, where—NetApp alleges—Reynolds
accessed NetApp databases repeatedly from June through
August 2013 and used confidential and_ proprictary
information to solicit business for Nimble. Id. 444-49.

B. Procedural History
On October 29, 2013, NetApp filed this lawsuit against
Nimble, Reynolds, and former NetApp employees
alleging multiple causes of action, including trespass to
chattels and violations of the Computer Fraud and Abuse
Act. ECF No. 1, §{ 59-73. NetApp also alleged that
Nimble was vicariously liable for Reynolds’ actions. /d.
{| 59-67. On December 20, 2013, the named Defendants
collectively filed three motions to dismiss, arguing that
NetApp failed to plead sufficient facts to support its
claims, challenging personal jurisdiction as to Reynolds,
and arguing that this Court lacked subject matterNetApp, Inc. v. Nimble Storage, Inc., Not Reported in F.Supp.3d (2015)

jurisdiction and supplemental jurisdiction over some of
NetApp’s claims. See ECF Nos. 22-24.

On January 10, 2014, NetApp filed its First Amended
Complaint, adding three individual defendants. See First
Am. Compl. §{] 74-82. NetApp alleged violations of the
Computer Fraud and Abuse Act (18 U.S.C. § 1030),
trespass to chattels, trade secret misappropriation, breach
of contract, intentional interference with contract and
contractual relations, and unfair competition. See id. {9
83-176. NetApp also alleged that Nimble was vicariously
liable for Reynolds’ acts. See, e.g., id. 4 84. On January
17, 2014, the Court entered an order by stipulation in
which NetApp agreed to withdraw its pending motions to
dismiss NetApp’s original complaint. ECF No. 39. On
February 18, 2014, Defendants filed new motions to
dismiss all claims in the First Amended Complaint, again
challenging the sufficiency of NetApp’s pleadings and
raising jurisdictional issues. See ECF Nos. 40-42. Nimble
sought to dismiss NetApp’s state law claims due to lack
of supplemental jurisdiction, and moved to dismiss all
claims for failure to state a claim or—in the
alternative—for a more definite statement under Rule
12(e). ECF No. 40. Reynolds moved to dismiss for lack of
personal jurisdiction and for failure to state any claim
against him, and further sought to join and incorporate by
reference the motions filed by the other defendants. See
ECF No. 41. All of the former NetApp employees
collectively moved to dismiss all of NetApp’s allegations
for lack of supplemental jurisdiction and for failure to
state any claims, and also sought to join and incorporate
by reference the motions filed by the other defendants.
See ECF No. 42.

*2 The Court held a hearing on May 8, 2014, and on May
12, 2014, the Court granted in part and denied in part the
various defendants’ motions to dismiss. See ECF No. 66
(“Order”). The Court denied Reynolds’ motion to dismiss
for lack of personal jurisdiction, and Reynolds’ motion to
dismiss NetApp’s claim for breach of contract and claims
under §§ 1030(a\(2)(C) and (a)(4) of the CFAA. /d. at
21-22, 28-30, 31. However, the Court granted Reynolds’
motion to dismiss with leave to amend NetApp’s CFAA
claim with respect to § 1030(a)(5) due to NetApp’s failure
to plead the statutorily-required element of “damage,”
NetApp’s claim of trespass to chattels, and claim of unfair
competition. /d. With respect to NetApp’s claims against
Nimble, the Court granted with leave to amend Nimble’s
motion to dismiss all of NetApp’s CFAA claims (on the
grounds that NetApp failed to plead that Nimble was
vicariously liable for Reynolds’ actions), claim for
trespass to chattels, and claim of unfair competition. /d. at
21-22, 28-30. The Court also declined to exercise
supplemental jurisdiction over, and thus dismissed with

prejudice, NetApp’s state law claims against Nimble for
trade secret misappropriation, intentional interference
with contract and contractual relations, and unfair
competition. /d. at 31. Finally, the Court declined to
exercise supplemental jurisdiction over NetApp’s claims
for trade secret misappropriation, breach of contract,
intentional interference with contract and contractual
relations, and unfair competition against former NetApp
employees Daniel Weber, Sandhya Klute, Timothy
Binning, Neil Glick, and Christoper Alduino.' Jd. at
27-28. The Court dismissed claims against these former
employees with prejudice. /d. 24-27. The Court ordered
NetApp to file an amended complaint within 21 days to
cure the deficiencies identified in this First Amended
Complaint. /d. at 32.

On June 2, 2014, NetApp timely filed its Second
Amended Complaint. ECF No. 71. The Second Amended
Complaint winnowed NetApp’s original claims down to
four: (1) violations of 18 U.S.C. 1030(a)(2)(C), (a)(4),.
and (a)(5) asserted against Nimble and Reynolds; (2)
trespass to chattels against Nimble and Reynolds; (3)
breach of contract against Reynolds; and (4) unfair
competition in violation of California Business and
Professions Code §§ 17200, ef seq. against Nimble and
Reynolds. /d. {] 50-80. On June 19, 2014, Defendants
filed the instant motion to dismiss. ECF No. 74. Also on
June 19, 2014, Defendants moved to strike portions of the
Second Amended Complaint that, according to Nimble,
pertained exclusively to the state law claims that this
Court previously dismissed for lack of supplemental
jurisdiction. See ECF No. 73. On July 3, 2014, NetApp
filed oppositions to both the motion to dismiss and motion
to strike. ECF Nos. 75 (“Opp’n Mot. Strike”) & 78
(“Opp’n Mot. Dismiss”). NetApp also filed declarations
supporting its oppositions with various exhibits. ECF
Nos. 76 & 79. Nimble filed replies in support of its two
motions on July 10, 2014. ECF Nos. 80 (“Reply Mot.
Dismiss”) & 81 (“Reply Mot. Strike”). NetApp also filed
a request for judicial notice related to its opposition to the
motion to strike. ECF No. 77. Nimble also filed a request
for judicial notice related to its motion to dismiss and
motion to strike. ECF No. 82, NetApp also filed
objections to evidence presented in Nimble’s replies.”
ECF Nos. 83 & 84.

Finally, on July 23, 2014, NetApp filed under seal an
administrative motion for leave to file a sur-reply in
opposition to Defendants’ motions to dismiss and strike.
ECF No. 85-3 (“Mot. File Surreply”). NetApp also filed a
supporting declaration with various exhibits, some of
which were filed under seal. ECF Nos. 85 & 86.
Defendants filed an opposition on July 28, 2014 with a
supporting declaration. ECF Nos. 88 & 89. This CourtNetApp, Inc. v. Nimble Storage, Inc., Not Reported in F.Supp.3d (2015)

granted Nimble’s motion for leave to file a sur-reply on
August 4, 2014. ECF No. 95. On October 13, 2014, the
Court ordered NetApp to file a supplemental brief on a
narrow issue raised in Defendants’ reply in support of its
motion to dismiss. ECF No. 99. NetApp timely filed its
supplemental brief on October 15, 2014. ECF No. 100
(*Supp.Brief”).

II. LEGAL STANDARDS

A, Motion to Dismiss Under Rule 12(b)(6)

A complaint may be dismissed as a matter of law due to
lack of a cognizable legal theory, or insufficient facts to
support a cognizable legal claim. Robertson v. Dean
Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984).
A complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). If a plaintiff fails to plead “enough
facts to state a claim to relief that is plausible on its face,”
the complaint may be dismissed for failure to state a claim
upon which relief may be granted. Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Fed.R.Civ.P.
12(b)(6). “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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “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). For purposes of
ruling on a Rule 12(b)(6) motion, a court “accept{s]
factual allegations in the complaint as true and construe[s]
the pleadings in the light most favorable to the
nonmoving party.” Manzarek v. St. Paul Fire & Marine
Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008).

*3 “Generally, the scope of review on a motion to dismiss
for failure to state a claim is limited to the contents of the
complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th
Cir.2006). However, the “court may look beyond the
plaintiff's complaint to matters of public record” without
converting the Rule 12(b)(6) motion into one for
summary judgment. Shaw v. Hahn, 56 F.3d 1128, 1130
n.1 (9th Cir.1995). Nor is the court required to * ‘assume
the truth of legal conclusions merely because they are cast
in the form of factual allegations.’ ” Fayer v. Vaughn, 649
F.3d 1061, 1064 (9th Cir.2011) (per curiam) (quoting W¥.
Mining Council v. Watt, 643 F.2d 618, 624 (9th
Cir.1981)). Mere “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion
to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th
Cir.2004); accord Iqbal, 556 U.S. at 678. Furthermore, “a
plaintiff may plead herself out of court” if the complaint

“plead[s] facts which establish that [the plaintiff] cannot
prevail on [its] ... claim.” Weishuch v. County of Los
Angeles, 119 F.3d 778, 783 n.1 (9th Cir.1997) (internal
quotation marks omitted).

B. Motion to Strike Under Rule 12(f)

Federal Rule of Civil Procedure 12(f) permits a court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” A Rule 12(f) motion to strike serves to “avoid the
expenditure of time and money that must arise from
litigating spurious issues by dispensing with those issues
prior to trial.” Sidney—Vinstein v. AH. Robins Co., 697
F.2d 880, 885 (9th Cir.1983), Motions to strike are
generally disfavored and “should not be granted unless
the matter to be stricken clearly could have no possible
bearing on the subject of the litigation... If there is any
doubt whether the portion to be stricken might bear on an
issue in the litigation, the court should deny the motion.”
Platte Anchor Bolt, Inc. v. THI, Inc., 352 F.Supp.2d 1048,
1057 (N.D.Cal.2004) (citations omitted). “With a motion
to strike, just as with a motion to dismiss, the court should
view the pleading in the light most favorable to the
nonmoving party.” /d. “Ultimately, whether to grant a
motion to strike lies within the sound discretion of the
district court.” Cruz v. Bank of New York Mellon, No.
12-CV—-00846-LHK, 2012 WL 2838957, at *2 (N.D.Cal.
July 10, 2012).

ILL. DISCUSSION

A. Requests for Judicial Notice

As an initial matter, the Court addresses both parties’
requests for judicial notice. A matter may be judicially
noticed if it is either “generally known within the trial
court’s territorial jurisdiction” or “can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201(b). Here,
Nimble requests judicial notice of a certified transcript of
the May 8, 2014 proceedings before this Court. See ECF
No. 82. NetApp does not oppose, and the materials are
matters in the public record. See Dawson v. Mahoney, 451
F.3d 550, 551 n.1 (9th Cir.2006) (allowing for judicial
notice of court orders and proceedings). Accordingly, the
Court GRANTS Nimble’s Request for Judicial Notice.

NetApp requests judicial notice of the Memorandum of
Points and Authorities in Support of Nimble’s Demurrer
to Complaint and Motion to Strike Portions of Plaintiff's
Complaint, filed in a concurrent action in Santa Clara
County Superior Court. See Declaration of Patrick S.NetApp, Inc. v. Nimble Storage, Inc., Not Reported in F.Supp.3d (2015)

Salceda in Support of NetApp’s Opposition to
Defendants’ Motion to Strike, Ex. J, ECF No. 76-10.
Documents filed in previous and concurrent lawsuits are
suitable for judicial notice under Rule of Evidence 201(b).
See Dawson, 451 F.3d at 551 n.1. Accordingly, NetApp’s
request for judicial notice is GRANTED.

B. Defendants’ Motion to Dismiss

*4 Defendants assert several grounds to dismiss certain
claims in NetApp’s Second Amended Complaint.
Defendants move to dismiss all of NetApp’s CFAA and
trespass to chattels claims against Nimble under the
theory that NetApp does not allege sufficient facts
showing that Nimble is vicariously liable for Reynolds’
actions. Mot. Dismiss at 7. Defendants also move to
dismiss NetApp’s claim under § 1030(a)(5) of the CFAA
on the grounds that NetApp does not allege a cognizable
claim of “damage” within the meaning of the statute. /d.
at 11-12. Finally, Defendants move to dismiss NetApp’s
claims of trespass to chattels and unfair competition on
the grounds that these claims are superseded by the
California Uniform Trade Secrets Act (“CUTSA”), and,
as to NetApp’s claim of trespass to chattels, on the
grounds that NetApp fails to sufficiently plead the
requisite damage. Jd. at 12-15. The Court will first
address NetApp’s allegation that Nimble is vicariously
liable for Reynolds’ actions, then will address the
sufficiency of NetApp’s CFAA, trespass to chattels, and
unfair competition claims.

1. Nimble’s Vicarious Liability for Reynolds’ Actions

NetApp alleges that Nimble is vicariously liable for
NetApp’s claims of trespass to chattels and violation of
the CFAA, based on three theories, First, NetApp
contends that Reynolds is Nimble’s employee. Second, in
the alternative NetApp claims that Nimble AUS,
Nimble’s Australian subsidiary and Reynolds’ employer,
is Nimble’s alter ego. Third, with respect to NetApp’s
CFAA claim only, NetApp alleges that Nimble is liable
for Reynolds’ acts because Nimble and Reynolds engaged
ina conspiracy. As discussed more fully below, the Court
finds that NetApp has not sufficiently pled Nimble’s
vicarious liability on any of these grounds.

a, NetApp’s Allegation that Reynolds is Nimble’s
Employee

The Court first addresses NetApp’s claim that it has
amended its complaint to now plead that Reynolds is a
direct employee of Nimble, as opposed to an employee of
Nimble AUS, a separate but related entity. NetApp’s
Second Amended Complaint describes Reynolds as “a
Systems Engineer with Nimble in its Australian sales
office.” Second Am. Compl. {| 5. In its opposition,
NetApp contends that this sufficiently alleges that
“Reynolds is employed directly by Nimble.” Opp’n Mot.
Dismiss at 4-5 (emphasis in original), However, to the
extent that NetApp now claims that Reynolds is Nimble’s
direct employee, this assertion contradicts what NetApp
asserted in its First Amended Complaint. In its First
Amended Complaint, NetApp alleged that Reynolds was
a “Systems Engineer with Nimble Storage Australia Pty
Limited ..., the Australian proprietary company controlled
by Nimble.” First Am. Compl. {| 6. This Court, in ruling
on Nimble’s first-round motion to dismiss NetApp’s First
Amended Complaint on the issue of vicarious liability,
ruled that “NetApp identified ‘Nimble’ and ‘Nimble
AUS’ as separate (if related) entities.” ECF No. 66, at 23.
This Court also rejected NetApp’s argument that
“Reynolds was a Nimble employee” on the grounds that
NetApp repeatedly pled “Reynolds’ employment was
with Nimble AUS.” Jd. (internal quotation marks
omitted), The Court ultimately dismissed NetApp’s claim
of Nimble’s vicarious liability with leave to amend.

When a court grants a party leave to amend a complaint
on a motion to dismiss, “the amended complaint may only
allege ‘other facts consistent with the challenged
pleading.’ ” Reddy y. Litton Indus., Inc., 912 F.2d 291,
297 (9th Cir.1990) (quoting Schreiber Distrib. Co. v.
Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th
Cir.1986)); Fourstar v. Murlak, No. CV 07-5892-ODW
SS, 2010 WL 2163980, at *3 (C.D.Cal. Apr. 26, 2010)
(‘Leave to amend should be liberally granted, but an
amended complaint cannot allege facts inconsistent with
the challenged pleading.”). Here, when this Court granted
NetApp leave to amend its First Amended Complaint with
respect to NetApp’s claims of vicarious liability, NetApp
did not have license to amend its pleading in a way that
contradicted assertions NetApp made in its earlier
complaint. However, by amending its complaint to plead
that Reynolds was Nimble’s direct employee instead of an
employee of Nimble AUS, this is precisely what NetApp
did. Therefore, the Court finds that NetApp fails to state a
claim for Nimble’s vicarious liability on the basis that
Reynolds is a direct employee of Nimble. See Banaga v.
Taylor Bean Mortgage Co., No. 11-4007 JSC, 2011 WL
5056985, at *4 (N.D.Cal. Oct. 24, 2011) (finding that
plaintiff failed to state a claim when plaintiff's amended
complaint contradicted plaintiff’s earlier pleadings).
Moreover, as discussed in Section IIIB..d, infra, theNetApp, Inc. v. Nimble Storage, Inc., Not Reported in F.Supp.3d (2015)

documents NetApp cites in NetApp’s sur-reply do not
support NetApp’s claim that Reynolds is in fact an
employee of Nimble.

b. NetApp’s Alter Ego Allegation

*§ Alternatively, Nimble alleges that Nimble AUS,
Reynolds’ employer, is the alter ego of Nimble. See, e.g.,
Second Am. Compl. 4 6 (“Nimble is the alter ego of
Nimble AUS where Nimble AUS is a mere shell and
instrumentality of Nimble as a conduit for a single
venture.”) Under the alter ego theory of liability, a parent
company may be held liable for its subsidiary’s conduct.
See S.E.C. v. Hickey, 322 F.3d 1123, 1128 (9th Cir.2003).
The Court applies the law of the forum state—here,
California—in determining whether alter ego liability
applies. Id. To “satisfy the alter ego exception to the
general rule that a subsidiary and the parent are separate
entities, the plaintiff must establish a prima facie case (1)
that there is such unity of interest and ownership that the
separate personalities [of the two entities] no longer exist;
and (2) that failure to disregard [their separate identities]
would result in fraud or injustice.” Doe v. Unocal Corp.,
248 F.3d 915, 926 (9th Cir.2001) (internal quotation
marks omitted) (alterations in original).

The first prong of the alter ego test—whether there is a
unity of interest and ownership such that the separate
personalities of the two entities no longer exist—“has
alternatively been stated as requiring a showing that the
parent controls the subsidiary to such a degree as to
render the latter the mere instrumentality of the former.”
7d. (internal quotation marks omitted). Specifically, where
a “parent dictates ‘[e]very facet [of the subsidiary’s]
business—from broad policy decision to routine matters
of day-to-day operation{ ],” the unity of interest and
ownership test is satisfied. Doe, 248 F.3d at 926-27
(quoting Rollins Burdick Hunter of S. Cal. Ine. v.
Alexander & Alexander Servs., Inc., 206 Cal.App.3d 1, 11
(1988)) (alteration in original). Similarly, “direct evidence
of manipulative control by the parent of its subsi
is illustrative of an alter ego relationship. Inst. of
Veterinary Pathology, Inc. v. California Health Labs.,
Inc., 116 Cal. App.3d 111, 120 (CtApp.1981). Finally,
“jnadequate capitalization of a subsidiary may alone be a
basis for holding the parent corporation liable for the acts
of the subsidiary.” Slottow v. American Cas. Co. of
Reading, Pa. 10 F.3d 1355, 1360 (9th Cir.1993).
However, the Ninth Circuit has stated that “[a] parent
corporation may be directly involved in financing and
macro-management of its subsidiaries ... without exposing
itself to a charge that each subsidiary is merely its alter

ego.” Doe, 248 F.3d at 927.

In assessing the first prong of the alter ego theory, the
Court examines whether there is: (1) the commingling of
funds and other assets; (2) holding out by one entity that it
is liable for the debts of another; (3) identical equitable
ownership of the two companies; (4) use of the same
offices and employees; (5) use of one company as a mere
shell for the other; (6) inadequate capitalization; (7) lack
of segregation of corporate records; and (8) identical
directors and officers. Miller v. Int'l Bus. Machines Corp.,
C02-2118 MJJ, 2006 WL 2792416, at *5 (N.D. Cal. Sept.
26, 2006) (citing Sonora Diamond Corp. v. Superior
Court, 83 Cal.App. 4th 523, 539 (2000)). “To sufficiently
allege a theory of alter ego, plaintiffs must provide ‘more
than labels and conclusions’—‘[fJactual allegations must
be enough to raise a right to relief above the speculative
level.” ” Hoang v. Vinh Phat Supermarket, Inc., No. CIV.
2:13-00724 WBS, 2013 WL 4095042, at *14 (E.D.Cal.
Aug. 13, 2013) (quoting Twombly, 550 U.S. at 555),

Here, NetApp makes twelve allegations that NetApp
claims show there is a unity of interest and ownership
between Nimble and Nimble AUS: (1) that Nimble
controls the business and daily operations of Nimble
AUS; (2) that Nimble AUS’ regulatory filings declare it is
100 percent owned by Nimble; (3) that Nimble is the sole
member of Nimble AUS, and that three of Nimble’s
executives are members of Nimble AUS’ board of
directors; (4) that Nimble’s regulatory filings refer to
Nimble’s Australian operations as a “sales office”; (5)
that Nimble claims in a press release that it has employees
in Australia; (6) that Nimble handles administrative tasks
for Nimble AUS, such as recruitment, legal defense,
insurance, and discipline; (7) that Nimble is paying
Reynolds’ attorney’s fees and controlling his defense; (8)
that contracts are made in the name of Nimble and not
Nimble AUS; (9) that Nimble AUS does not pay taxes for
conducting business in Australia; (10) that Nimble AUS
does not have separate email or a website apart from
Nimble; (11) that Nimble issues all press releases on
behalf of Nimble AUS; and (12) according to corporate
filings, Nimble recognized Nimble AUS’ revenue as its
own. Second Am. Compl. § 6.

*6 As a preliminary matter, NetApp fails to explain how
several of its allegations—such as that Nimble handles
certain administrative tasks for Nimble AUS, that Nimble
is paying Reynolds’ attorney’s fees, or that Nimble issues
press releases on behalf of Nimble AUS—are relevant to
the eight factors in the unity of interest and ownership
inquiry. See Sonora Diamond Corp., 83 Cal.App. 4th at
538-39, NetApp states that these allegations are
“indisputably ... indicative of alter ego.” Opp’n Mot.NetApp, Inc. v. Nimble Storage, Inc., Not Reported in F.Supp.3d (2015)

Dismiss at 9. However, NetApp does not otherwise
explain how these alleged facts are applicable. Moreover,
an allegation that Nimble and Nimble AUS share certain
administrative functions, such as policies related to
recruitment, legal defense, insurance, and discipline, is
not indisputably indicative of alter ego. See Tomaselli v.
Transamerica Ins. Co., 25 Cal.App. 4th 1269, 1285
(1994) (noting there is no alter ego