The opinion
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7 UNITED STATES DISTRICT COURT
8 NORTHERN DISTRICT OF CALIFORNIA
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10 LUCINDA PORTER, Case No. 25-cv-07836-JSW
11 Plaintiff,
ORDER GRANTING MOTION TO
12 v. DISMISS WITH LEAVE TO AMEND
AND DENYING MOTION TO STAY
13 APPLE, INC., PENDING SETTLEMENT
PROCEEDINGS
Defendant.
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Re: Dkt. Nos. 25, 29
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Now before the Court is the motion to dismiss the first amended complaint filed by
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defendant Apple, Inc. (“Apple”). Also before the Court is Plaintiff’s motion to stay this matter
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pending requested settlement proceedings. The Court has considered the parties’ papers, relevant
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legal authority, and the record in this case, and HEREBY GRANTS Defendant’s motion to
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dismiss and DENIES Plaintiff’s motion to stay.
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BACKGROUND
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Plaintiff brings this lawsuit after opting out of the class action settlement in Lopez v. Apple.
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Inc., 19-cv-04577-JSW. Plaintiff claims that Apple’s Siri function recorded private conversations
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from her home without Plaintiff’s consent or instruction through inadvertent activations. Apple
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moves to dismiss on the basis that Plaintiff has failed to allege a concrete and particularized injury
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and therefore lacks Article III standing. Apple also contends that Plaintiff has not met the
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heightened pleading standards for her fraud claims under Federal Rule of Civil Procedure 9(b).
1 For specific causes of action, Apple contends that the first amended complaint lacks allegations of
2 either actionable misrepresentations relied upon and no damage or economic injury.
3 Plaintiff also moves to stay this action pending settlement proceedings, which she requests
4 on an expedited basis.
5 ANALYSIS
6 A. Motion to Dismiss Legal Standards.
7 To survive a motion to dismiss for failure to state a claim upon which relief can be granted,
8 a complaint “may not simply recite the elements of a cause of action but must contain sufficient
9 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself
10 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see also Bell Atlantic Corp. v.
11 Twombly, 550 U.S. 544, 555-56 (2007) (holding that mere “labels and conclusions” or “formulaic
12 recitation of the elements of a cause of action” will not suffice to overcome a motion to dismiss.
13 A complaint must contain sufficient factual matter that, accepted as true, states a “claim that is
14 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions couched as
15 factual allegations are not entitled to the assumption of truth. Id. at 679.
16 B. Standing.
17 In order to demonstrate Article III standing, a plaintiff must establish an injury that is
18 “concrete and particularized” and “actual, or imminent, not conjectural or hypothetical.” Lujan v.
19 Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In the privacy context, a plaintiff must identify the
20 “embarrassing, invasive, or otherwise private information collected” that is “remotely similar to
21 the ‘highly offensive’ interferences or disclosures that were actionable at common law.” Popa v.
22 Microsoft Corp., 153 F.4th 786, 791 (9th Cir. 2025). Apple contends that Plaintiff has not met
23 this requirement by merely alleging that she experienced unintentional Siri activations when she
24 was speaking to family or guests while in her home.
25 Although she alleges that the conversations happened inside her home, Plaintiff fails to
26 allege that they contained embarrassing, invasive, or otherwise very private information sufficient
27 to support her claims. Although the Court does not require verbatim transcripts of the alleged
1 warrant privacy protections. Accordingly, the Court GRANTS the motion to dismiss for failure to
2 state a claim based on the very limited factual allegations of the conversations. The Court allows
3 leave to amend to allege sufficient factual premise indicating the conversations contained
4 embarrassing, invasive, or otherwise private information.
5 Apple also moves to dismiss for failure to establish Article III standing on the basis that
6 Plaintiff fails to allege facts showing that she was deprived of the benefit of her purchase. Plaintiff
7 merely alleges in conclusory fashion that she would not have purchased, or would have paid less
8 for, her devices had she known about the alleged “false acceptances.” (First Amended Complaint
9 (“FAC”) at 5.) Plaintiff fails to allege specific facts indicating which Apple devices she purchased
10 and when, as well as any specific details about the representations allegedly made by Apple that
11 she relied upon when making her purchases. Without some more specific factual premise,
12 Plaintiff lacks standing to prove that she was deprived of the benefit of the bargain. Accordingly,
13 the Court GRANTS the motion to dismiss for failure to state a claim based on the very limited
14 factual allegations of the benefit of the bargain. The Court allows leave to amend to allege
15 sufficient factual premise indicating the details of Plaintiff’s purchases of the various Apple
16 products as well as the representations or omissions that she specifically relied upon in the
17 assessment of the value of her purchases.
18 C. First Cause of Action for Violation of California Invasion of Privacy Act.
19 Apple moves to dismiss individual causes of action for failure to state claims upon which
20 relief can be granted. Apple moves to dismiss the first cause of action under Section 632 of
21 California Invasion of Privacy Act (“CIPA”) which prohibits the use of a device to record
22 confidential communications “intentionally and without the consent of all parties.” Cal. Penal
23 Code § 632. CIPA defines “confidential communication” to be “any communication carried on in
24 circumstances as may reasonably indicate that any party to the communication desires it to be
25 confined to the parties thereto.” Id. at § 632(c). It does not include any communications made in
26 a “circumstance in which the parties to the communication may reasonably expect that the
27 communication may be overheard or recorded.” Id. A plaintiff must “allege facts that would lead
1 v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1020 (9th Cir. 2013).
2 Here, again, Plaintiff’s factual allegations come up short. Plaintiff asserts only that the
3 communications allegedly recorded by Apple were confidential based on the fact that the
4 conversations occurred inside her home, while “speaking with family or guests.” (FAC at 4.) In
5 In re Google Assistant Privacy Litigation, the Court dismissed claims under Section 632 because
6 the allegations in the complaint contained “insufficient detail regarding the particular
7 circumstances under which Plaintiffs used they [voice assistant enabled devices].” 457 F. Supp.
8 3d 797, 817 (N.D. Cal. 2020). The Court explained that allegations which merely label
9 communications confidential without facts “regarding the participants in the conversations … or
10 examples of content from the conversations,” provide “insufficient detail regarding the particular
11 circumstances under which Plaintiff used their [devices]” and are inadequate to state a claim. Id.
12 Similarly, Plaintiff here alleges merely that she had conversations at home with family or
13 guests, but does not allege that any observed inadvertent Siri activation occurred during a private
14 conversation. She does not allege the content or participants in any particular communication or
15 state if there were others present for any communication. Plaintiff’s generalized assertions that the
16 communications were confidential without any particularity as to the participants or content of any
17 particular communication are insufficient to state a claim under Section 632. Accordingly, the
18 Court GRANTS the motion to dismiss the first cause of action under CIPA for failure to state a
19 claim based on the very limited factual allegations of content, character, or circumstances of the
20 alleged confidential communications. The Court allows leave to amend to allege a sufficient
21 factual premise indicating the details of Plaintiff’s conversations in order to demonstrate that they
22 should be deemed confidential.1
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1 Apple also argues that because Plaintiff alleges that the recordings were based on “false
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acceptances,” they are not intentional and cannot therefore qualify for a claim under Section 632
which requires intent to record a confidential communication. See, e.g., People v. Superior Court
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of Los Angeles County, 70 Cal.2d 123 133 (1969) (“[I]t is not the purpose of the statute to punish a
person who intends to make a recording but only a person who intends to make a recording of a
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confidential communication”). Plaintiff opposes on the basis that while the initial trigger of the
recording might have been accidental, Apple knows about the false triggers and “yet intentionally
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designed the system to capture, transmit, and analyze this “accidental” audio to improve its
1 D. Second and Third Causes of Action for Violation of Consumer Protection Statutes.
2 Apple also moves to dismiss Plaintiff’s causes of action for violation of the California
3 Unfair Competition Law (“UCL”) and the Consumers Legal Remedies Act (“CLRA”). Both
4 causes of action are grounded in fraud and concern misleading representations in advertising,
5 premised upon Apple’s allegedly “deceptive” marketing and privacy disclosures regarding Siri.
6 Because the causes of action sound in fraud, they must be pled to satisfy Federal Rule of Civil
7 Procedure 9(b)’s requirement of heightened particularity. Also, in order to state a claim that rises
8 to fraudulent conduct, Plaintiff must allege that she viewed and relied upon Apple’s alleged
9 misrepresentations before she purchased the affected devices. See Hammerling v. Google LLC,
10 615 F. Supp. 3d 1069, 1083 (N.D. Cal. 2022).
11 Plaintiff fails to allege any specific facts about her purchase history of the affected Apple
12 devices nor does she indicate what representations from Apple she relied upon when purchasing
13 their products. She does not allege where Apple made any particular representations, the content
14 of the representations, or that she saw or relied upon them when making her purchases. She does
15 not designate which terms of service or privacy disclosure or other representations she relied upon.
16 In order to satisfy the heightened burden of fraud claims, Plaintiff needs to plead the specific
17 content of the alleged misrepresentations and her reliance upon them. See, e.g., In re Google, Inc.
18 Privacy Litig., 58 F. Supp. 3d 968, 982-83 (N.D. Cal. 2014) (dismissing CLRA claim where
19 plaintiff had failed to allege that he was exposed to or relied upon Google’s privacy policy prior to
20 purchase). To the extent Plaintiff intends to plead that it was omissions, in order to “plead
21 circumstances of omission with specificity, plaintiff must describe the content of the omission and
22 where the omitted information should or could have been revealed, as well as provide
23 representative samples of advertisements, offers, or other representations that plaintiff relied on to
24 make her purchase and that failed to include the allegedly omitted information.” Nabors v.
25 Google, Inc., 2011 WL 3861893, at *5 (N.D. Cal. Aug, 30, 2011) (quoting Marolda v. Symantec
26 Corp., 672 F. Supp. 2d 992, 1002 (N.D. Cal. 2009)). Accordingly, the Court GRANTS the motion
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1 to dismiss the second and third causes of action under UCL and CLRA for failure to state a claim
2 based on the very limited factual allegations of content, character, or timing of the alleged reliance
3 upon factual misrepresentations or omissions made by Apple. The Court allows leave to amend to
4 allege a sufficient factual premise indicating the details of the alleged misrepresentations and
5 Plaintiff’s reliance on them.2
6 E. Plaintiff’s Motion to Refer Case to Settlement and to Stay.
7 In a separate motion, Plaintiff seeks to have this case referred to a settlement conference
8 and stayed. Plaintiff requests that the Court invoke its broad authority to manage its docket by
9 referring the matter for resolution by ADR and stay the case pending settlement. Plaintiff invokes
10 the settlement of the Lopez class to argue that her claims have inherent merit and deserve the
11 attention of a settlement referral. First, the Lopez settlement cannot be used to establish the merit
12 of Plaintiff’s claims. Apple did not admit fault and the settlement cannot be used as evidence of
13 liability. See, e.g., Diamond Resorts U.S. Collection Dev., LLC v. Pandora Mktg., LLC, 2023 WL
14 9659943, at *13 (C.D. Cal. July 26, 2023) (holding that a party cannot present evidence of a
15 settlement under Federal Rule of Evidence 408 “to the extent they intend to offer the evidence to
16 prove the validity or legitimacy of the disputed claims in various cases”). Federal Rule of
17 Evidence 408 clearly disallows Plaintiff from relying upon the existence of a settlement to support
18 her claims. Second, the Court does not find the case ripe for settlement. By this order, the Court
19 dismisses Plaintiff’s claims with leave to amend. Therefore the pleadings are not yet final.
20 Accordingly, the Court DENIES Plaintiff’s motion for a settlement referral and stay of the action.
21 Instead, the Court sets the date upon which an amended complaint must be filed for September 11,
22 2026. After the pleadings are finalized, should the case continue, the Court will set a case
23 management conference date at which point the parties may discuss settlement options, including
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2 Apple also moves to dismiss Plaintiff’s fourth cause of action for declaratory relief on the
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premise that her other causes of action fail and there is no premise upon which to grant declaratory
] a possible referral to a Magistrate Judge to conduct an early settlement conference.
2 IT IS SO ORDERED.
3 || Dated: July 31, 2026 \k thoy AH
4 4 { i !
/ LS. WRATE
5 | (United States District Judge
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