Amar Bhakta vs Apple, Inc.

Apple’s standard offer letter, IPA, BCP, and equity plans and agreements place unlawful restraints on employee speech, competition, wage rights, autonomy, and privacy. (SAC, ¶¶ 32-57.) Plaintiff asked for permission to engage in public speaking about his area of expertise but was denied by Apple. (SAC, ¶ 62.) Apple also required that he remove and edit unprotected information about his working conditions and work at Apple from his LinkedIn profile, which limited his visibility and attractiveness in the job market thus harming Plaintiff and competitors for his services. (Ibid.)

Based on the foregoing, Plaintiff initiated this action on December 2, 2024, and on February 7, 2025, he filed the first amended complaint (“FAC”), which asserts separate “causes of action” under PAGA for (1) speech suppression; (2) privacy violations, surveillance, and forced patronage; and (3) wage clawbacks. Defendant filed a motion to strike portions of the FAC, which Plaintiff opposed. On October 27, 2025, the Court (Hon. Charles F, Adams) issued an order granting in part and denying in part Defendant’s motion to strike portions of the FAC, granting leave to amend.

On November 13, 2025, Plaintiff filed the operative SAC, again asserting separate “causes of action” or “claims” for violations of PAGA based on (1) speech suppression; (2) privacy violations, surveillance, and forced patronage; and (3) wage clawbacks. Defendant filed a motion to strike portions of the SAC, which Plaintiff opposed. On March 2, 2025, this Court filed an order granting in part and denying in part Defendant’s motion to strike portions of the SAC without leave to amend. The Court struck the Labor Code section 206.5, 221, and 450 claims but left intact the claim based on Labor Code section 2802, finding that Apple should have challenged it in its initial motion to strike.

X. MOTION FOR JUDGMENT ON THE PLEADINGS

In its motion for judgment on the pleadings Apple seeks dismissal of the Labor Code section 2802 and Labor Code section 2804 claims asserted in the SAC.

A.

Legal Standard

A motion for judgment on the pleadings brought by a defendant or respondent may be granted on where the petition fails to state sufficient facts to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) The motion may be directed to the entire complaint or any cause of action therein. (Code Civ. Proc., § 438, subd. (c)(2)(A).) The grounds for the motion “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ.

Proc., § 438, subd. (d).) In ruling on a motion for judgment on the pleadings, “[t]he trial court must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)

“[A] motion for judgment on the pleadings may be addressed to the pleading as a whole or to separate counts. If addressed to the pleading as a whole, the motion must be denied if even one count is good. [Citation.] If addressed to separate counts, the motion may be granted as to some counts and denied as to others. [Citation.]” (Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1358.)

A motion for judgment on the pleadings may be granted with or without leave to amend. Denial of leave to amend generally constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.)

B. Plaintiff’s Request for Judicial Notice

Plaintiff requests judicial notice of the following items:

(1) Apple’s iCloud Terms and Conditions, available on Apple’s website: Exhibit A; (2) the English version of Apple’s iOS and iPadOS Software License Agreement (Document EA1956), available on Apple’s website: Exhibit B.

Defendant opposes the request as to both asserting, among other things, that a website is not the proper subject of judicial notice, that the iCloud terms were amended after Plaintiff employment ended, and that Plaintiff is improperly seeking to use the request for judicial notice to fill in gaps in the SAC. The Court DENIES judicial notice of the requested items because, as discussed further below, it appears to the Court that Plaintiff is attempting to use these documents, which are not mentioned in nor attached to the SAC to supplement the allegations of the SAC.

C.

Analysis

The motion for judgment on the pleadings seeks dismissal of the Labor Code section 2802 and Labor Code section 2804 claims asserted in the SAC.

i. Timeliness of the Motion

Plaintiff contends that Defendant may not move for judgment on the pleadings when he has already filed two motions to strike. He relies on Code of Civil Procedure sections 435.57 and 438, subdivision (g).8 As Defendant points out, neither of those authorities precludes a motion for judgment on the pleadings after a prior motion to strike. Nonetheless, Code of Civil Procedure section 439, subdivision (b) provides, “A party moving for judgment on a pleading that has been amended after a motion for judgment on the pleadings on an earlier version of the pleading was granted shall not move for judgment on any portion of the pleadings on grounds that could have been raised by a motion for judgment on the pleadings as to the earlier version of the pleading.” (Code Civ. Proc., § 439, subd. (b).)

Apple also argues that the motion could not have been made against the FAC because many of the allegations Plaintiff relies on in opposition to the motion were added in the SAC. The Court finds this argument unpersuasive given that many of the allegations Apple relies on in its motion, namely paragraphs 18, 71, 72, 82, 83, 95 and 97 were all present in the FAC in the substantially the same form.

Apple further argues that it can bring a non-statutory motion for judgment on the pleadings at any time prior to trial and therefore, the court can consider the instant motion. Again, the Court questions this conclusion because the motion is expressly brought under Code of Civil Procedure section 438, to which Code of Civil Procedure section 439 applies.

7 That section provides, in pertinent part, “A party moving to strike a pleading that has been amended after a motion to strike an earlier version of the pleading was granted shall not move to strike any portion of the pleadings on grounds that could have been raised by a motion to strike as to the earlier version of the pleading.” (Code Civ. Proc., § 435.5, subd. (b).) 8 That section provides,

The motion provided for in this section [a motion for judgment on the pleadings] may be made even though either of the following conditions exist: (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer. (2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section.

(Code Civ. Proc., § 438, subd. (g).)

Nonetheless, to avoid delay and duplication of efforts, because the motion is fully briefed, the court will address the merits.

ii. Merits of the Motion

Labor Code section 2802, subdivision (a) provides, “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.” “Any contract or agreement, express or implied, made by any employee to waive the benefits of this article or any part thereof, is null and void, and this article shall not deprive any employee or his personal representative of any right or remedy to which he is entitled under the laws of this State.” (Lab. Code, § 2804.)

“The elements of a section 2802, subdivision (a) cause of action, as delineated by the statutory language, are: (1) the employee made expenditures or incurred losses; (2) the expenditures or losses were incurred in direct consequence of the employee’s discharge of his or her duties, or obedience to the directions of the employer; and (3) the expenditures or losses were necessary.” (Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 230.)

As to the Labor Code section 2802 claim, Defendant contends that the SAC fails to plead that necessary expenditure that was not reimbursed because it alleges that Defendant used employees’ personal iCloud data and data contained on employees’ personal iPhones without reimbursement. In other words, Defendant claims that Plaintiff alleges only that it profited from employees data and not that employees were required to purchase anything without reimbursement. As to the Labor Code section 2804 claim, Defendant argues that the SAC does not state a claim because it does not allege a contract to waive the right to reimbursement; instead, it alleges only that employees were required to waive their rights to privacy and autonomy.

As to the Labor Code section 2802 claim, Plaintiff relies on two main theories regarding how the use of employee data constitutes a necessary expenditure or loss. The first is that employee personal data has economic value such that Apple’s use of it constitutes a loss. The second is that employees were required to sign up for iCloud, which comes with an associated cost. Thus, the contracts Plaintiff relies on to support the Labor Code section 2804 claim include the BCP, which Plaintiff claims allows Apple to access personal employee data; the iCloud terms, which allows Apple to use data contained in the iCloud accounts; and the iOS and iPadOS Software License Agreement, which Plaintiff argues caps Apple’s total liability for all damages at $250.

As to Plaintiff’s first theory, Plaintiff maintains that when Apple requires an employee to surrender their private data and then monetizes it, the employee loses the value of the data. Plaintiff relies on Machinists Automotive Trades District Lodge v. Utility Trailers Sales Co. (1983) 141 Cal.App.3d 80, wherein the Court of Appeal held that Labor Code section 2802 “applies where . . . the custom of the trade requires the employee to supply his own tools for the performance of his duties, and while the employer does not require the employee to leave his tools on the employer’s premises, the tools are too heavy to be transported routinely to and from the place of employment.” (Id. at p. 86.)

He asserts that he is seeking to extend this well-settled law. But, in that case, the tools were stolen from the plaintiff’s workplace and thus, the employee was deprived of the use of them. (See id. at p. 82.) Here, although the SAC alleges that data has been provided or surrendered to Apple, (SAC, ¶¶ 79-83, 86-90, 96), it does not allege that the employee loses the data. For example, the SAC contains no allegations that the employee loses access to the data, or that the employee would be precluded from monetizing the data, that the employee would be deprived of use of the data for a limited time, or that the data would lose value due to Apple’s use.

As to the second theory that employees were required to sign up for iCloud and to pay for same, Plaintiff relies on Cochran v. Schwan’s Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1140 (Cochran), in which the Court of Appeal held “that when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them.” (Footnote omitted.) This was true even if the employees did not incur costs they would not otherwise incur due to the use required by the employer because “[o]therwise, the employer would receive a windfall because it would be passing its operating expenses on to the employee. Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill.” (Id. at p. 1144.)

Plaintiff asserts that “fairly read,” the SAC alleges that employees were required to pay for the iCloud accounts Apple allegedly required them to use. The court disagrees. While the SAC pleads that employees were required to become Apple consumers and it contains allegations regarding failure to reimburse, those allegations must be read as failure to reimburse employees, not for their own use of their iCloud accounts but for failure to reimburse employee’s for Apple’s use of their iCloud accounts (i.e., Plaintiff’s first theory). (SAC, ¶ 18 [allegation regarding forcing employees to be Apple consumers], 82 [“Apple does not reimburse its employees for its use of their personal iCloud account.”], 95 [“Apple has not reimbursed Bhakta for its use of his iCloud account.].)

As whether the expenses were necessary, as Defendant points out, in Cochran, the Court of Appeal held that the employees entitled to reimbursement because they were required to use their personal cell phones for work. (Cochran, supra, 228 Cal.App.4th at p.1139.) Here, the SAC alleges that employees are required to use Apple tools for work, which “require a personal iCloud account.” (SAC, ¶ 81.) Thus, employees must either use the personal account they already have or create an account. (Ibid.) Plaintiff also asserts that only one iCloud “primary” account may be associated with a user so someone who already has an account must associate their work account with their preexisting account, such that the preexisting account becomes “Apple managed[,]” which causes unilateral changes to the configuration of the personal account, including the addition of a “work folder.” (SAC, ¶ 83.)

As pled, it does not appear that Plaintiff claims employees are required to pay for the work account. It appears that under the second theory, Plaintiff is seeking reimbursement for the changes allegedly made to the personal account when a work account is linked.

The purpose of Labor Code section 2802 is “to prevent employers from passing their operating expenses on to their employees.” (Cochran, supra, 228 Cal.App.4th at p. 1144, quoting Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 562, internal quotation marks omitted.) Here, Plaintiff has not adequately identified any expense stemming from the association of an employee’s personal account with their work account, nor has he adequately pled the consequences of such an association such that the court could find that the personal account is being used for work purposes. Accordingly, the Court will GRANT the motion for judgment on the pleadings as to the Labor Code section 2802 claim WITH LEAVE TO AMEND.

While Defendant argues the court should grant the motion without leave to amend, the Court does not find that the claim is incapable of amendment as a matter of law. (See City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747 [“If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment. [Citations.]”]; see also Cloud v.

Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [A motion for judgment on the pleadings is the functional equivalent of a general demurrer].) Here, although Plaintiff has previously amended the complaint three times, Defendant failed to raise this argument in its two prior motions to strike. Additionally, the Court is not persuaded by Defendant’s argument that the Court’s prior treatment of the Labor Code section 450 claim forecloses Plaintiff from bringing his Labor Code section 2802 claim on these facts.

The Court’s prior orders explicitly indicated that Labor Code section 450 requires a purchase. But, Labor Code section 2802 requires a loss or expenditure. While the Court finds that the allegations of the SAC do not adequately plead such a loss or expenditure, the facts of this case appear to be somewhat similar to Cochrane.

As to the Labor Code section 2804 claim, Defendant contends that the SAC does not identify any contract or agreement that requires an employee to waive the right to reimbursement. In opposition, Plaintiff contends, citing paragraphs 18, 86-87, and 97 of the SAC, that he pleads that the BCP allows Apple to access his account information without reimbursement, which he maintains is an implied waiver of the right to reimbursement for same. Thus, it appears that the Labor Code section 2804 claim is based on Plaintiff’s first Labor Code section 2802 theory, which the Court finds to be inadequately pled.

Plaintiff also relies on the “consumer agreements,” which he identifies as the iCloud Terms and Conditions and the iOS and iPadOS Software License Agreement, which are not specifically mentioned in the SAC, nor are they attached to it. Accordingly, they cannot be considered to supplemental the allegations of the complaint. The motion is GRANTED as to the Labor Code section 2804 claim WITH LEAVE TO AMEND.

XI. MOTION TO BIFURCATE

Apple moves to bifurcate discovery and trial pursuant to Code of Civil Procedure section 1048 such that the issue of whether Plaintiff has standing to pursue claims for PAGA penalties on behalf of other employees proceeds first. Alternatively, it moves to sequence discovery pursuant to Code of Civil Procedure section 2019.020, subdivision (b), to first limit discovery to Plaintiff’s individual claim for penalties under PAGA so that the parties may file early motions that may resolve the issue of Plaintiff’s standing to pursue penalties on behalf of others.

A. Legal Standards

i. Bifurcation

Code of Civil Procedure section 1048, subdivision (b) provides, “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” “[T]he decision to bifurcate is discretionary with the trial court.” (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 833.)

ii. Discovery Sequence

Generally, discovery may be used in any sequence. (Code Civ. Proc., § 2019.020, subd. (a) [“Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.”].) However, “on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” (Code Civ. Proc., § 2019.020, subd. (b).)

B. Apple’s Request for Judicial Notice

Apple requests judicial notice of various trial court orders from the Los Angeles County Superior Court and other judges of the Santa Clara County Superior Court. In each case, Apple contends, the court issued an order bifurcating or sequencing a PAGA action. While there is some authority or taking judicial notice of trial court orders, (Becerra v. McClatchy Co. (2021) 69 Cal.App.5th 913, 929 [taking judicial notice of trial court order under parallel circumstances], trial court order have “no binding or precedential effect,” having “at most, some persuasive value.” (Id. at p. 929.)

Thus, they are of “limited relevance[.]” (Ibid.) Here, Apple makes its request for judicial notice with its reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers.”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [same]; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [same]; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783 [points raised in the first time in reply should not be considered].)

Apple asserts that it seeks judicial notice because Plaintiff indicates in opposition that no California court has ever ordered what Apple seeks in the instant motion, namely staying representative PAGA litigation pending the outcome of trial on the individual claims. Under these circumstances, the court will GRANT judicial notice of the trial court orders for the limited purpose of showing that court’s have granted bifurcation of PAGA litigation.

C. Merits of the Motion

Apple contends that, for claims brought prior to June 19, 2024, a plaintiff seeking PAGA penalties on behalf of other employees need only have suffered one of the alleged violations to have standing. However, Labor Code section 2699 was amended such that the named plaintiff must have suffered each of the alleged violations to seek penalties on behalf of others. Labor Code section 2669, subdivision (c)(1) currently provides, “For purposes of this part, ‘aggrieved employee’ means any person who was employed by the alleged violator and personally suffered each of the violations alleged during the period prescribed under Section 340 of the Code of Civil Procedure . . . .” (Lab. Code, § 2699, subd. (c)(1).) Labor Code section 2699, subdivision (v) provides:

(1) Except as provided in paragraph (2), the amendments made to this section by the act adding this subdivision shall apply to a civil action brought on or after June 19, 2024. (2) The amendments made to this section by the act adding this subdivision shall not apply to a civil action with respect to which the notice required by subparagraph (A) of paragraph (1) of subdivision (a), paragraph (1) of subdivision (b), or subparagraph (A) of paragraph (1) of subdivision (c) of Section 2699.3 was filed before June 19, 2024.

(Lab. Code, § 2699, subd. (v).)

Here, the initial complaint was filed December 2, 2024. But, Plaintiff contends that the 2024 amendment does not apply because the PAGA notice was filed on April 29, 2024. (See Lab. Code, § 2699, subd. (v).) Defendant argues that the Labor Code section 2802 claim was not stated in the PAGA notice and, thus, was alleged for the first time in the initial complaint after June 19, 2024. Citing Hutcheson v. Superior Court (2022) 74 Cal.App.5th 932, 937-941, Plaintiff contends that the PAGA notice relates back to the civil action as a whole and therefore, the Labor Code section 2802 claim relates back to the filing of the PAGA notice.

The court need not decide whether the section 2802 claim relates back to the filing of the PAGA notice because, even assuming that Defendant is correct, the fact that only the Labor Code section 2802 claim may be subject to 2024 amendment appears to significantly limit the benefits of bifurcation since Plaintiff would have personally suffered only the Labor Code section 2802 claim to have standing as to all claims.9 Further, because it appears that the prior version of section 2699 would apply to most, if not all, of the claims, 2024 amendment to section 2699 does not provide a basis for distinguishing this case from any other PAGA action.

Plaintiff relies on various cases including Williams v. Superior Court (2017) 3 Cal.5th 531 (Williams), Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, and Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745, to assert that the policies behind PAGA are not served by bifurcating trial or sequencing discovery in the manner Defendant seeks. The Court agrees with Defendant that nothing in those cases prevents the Court from bifurcating this case; in fact, in Williams the Court explicitly recognized “that in a particular case there may be special reason to limit or postpone a representative plaintiff’s access to contact information for those he or she seeks to represent[.]” (Williams, supra, 3 Cal.5th at p. 544.)

But, the cases do establish that the general rule is that a PAGA plaintiff is entitled to companywide discovery and such a plaintiff is not required to make a showing that they can succeed on their individual claims prior to receiving such discovery. (Ibid. [“the default position is that such information [companywide contact information] is within the proper scope of discovery, an essential first step to prosecution of any representative action”].)

In some of the cases Defendant relies on in which bifurcation was granted, circumstances outside the norm supported granting bifurcation in those cases. For example, in Ortmann v. Adecco, USA, Inc., there was a question of whether the defendant even employed the PAGA plaintiff. (Defendant’s Request for Judicial Notice, Ex. D [Order filed May 6, 2021 9 The court also notes that it has granted Defendant’s motion for judgment on the pleadings as to the Labor Code section 2802 claim. While it has granted leave to amend, Plaintiff could always choose not to amend.

in Ortmann v. Adecco, USA, Inc., 19CV355315], p. 3:5-7 [“Here, Google presents evidence that it did not employ Ms. Ortmann and urges that this will be an important threshold issue in the case governing her standing to bring PAGA claims against it.”].) In Stafford v. Dollar Tree Stores, Inc. (E.D.Cal. Nov. 20, 2014, No. 2:13-cv-1187 KJM CKD) 2014 U.S.Dist.LEXIS 163458 (Stafford), the Court of Appeal alluded to potential problems with discovery that could arise due to the pendency of two class action suits involving the same defendant in a different court, noting that the defendant claimed that it would have difficulty interviewing the unrepresented class members in one of the class actions. (Id. at *5-6.)

Here, outside of the nature of the PAGA claims themselves, which are admittedly outside the norm, Defendant points to nothing to distinguish this case from any other representative PAGA action. Defendant contends that discovery will be expensive and that Plaintiff alleges eight separate violations of the Labor Code. But, Defendant provides no evidence regarding the quantum of the expense or any reason to believe that discovery will be more complicated or burdensome than in any other PAGA case. (See Defendant’s Request for Judicial Notice, Ex.

C [Order filed February 9, 2021 in Cassell v. Google, 17CV319202] [“Here, Google has shown through admissible, unrebutted evidence that considerable time and money may be saved if the issue of Mr. Cassel’s standing for his PAGA claims is resolved before broad discovery commences on the PAGA claims. Google claims without contradiction that the number of employees who might come within Mr. Cassel’s definition of ‘PAGAaggrieved employees’ number in the thousands (perhaps over 10,000 employees). [Citation.]

To undertake discovery concerning this many employees will be expensive and timeconsuming, and that expense might be avoided if it turns out Mr. Cassel lacks standing.”]; see also Stafford, supra, 2014 U.S.Dist.LEXIS 163458, at *12 [“in light of the number of potential aggrieved employees, judicial economy favors deferring the representative portion of the PAGA claim until plaintiff’s status as an aggrieved employee with the right to bring this action is established”].)

The motion for bifurcation and the alternative motion for discovery sequencing, which is based on the same arguments, are DENIED.

XII. CONCLUSION

The motion for judgment on the pleadings is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

The motion for bifurcation and the alternative motion for discovery sequencing are DENIED.

The Court will prepare the final order.

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