Carolyn McKinney et al vs APPLE, INC.

Apple Inc. (25CV471234) (Mendoza).

As discussed below, Apple’s demurrers are OVERRULED.

I. BACKGROUND

According to the allegations in the operative Complaint in McKinney, in 2011 Apple integrated its digital assistant Siri into its devices beginning with the iPhone 4s. 5 (Complaint, ¶¶ 2, 25-26.) By 2019, Siri was a standard feature on subsequent generations of Apple devices. (Ibid.) Initially, Siri could only be activated by manually pressing and holding a button on the device, however, in 2014, Apple released a feature which allows users to activate it by saying “Hey, Siri” (the “Trigger Words”). (Complaint, ¶¶ 3, 29.)

Users found that Siri was activated even when they did not say the designated “Trigger Words.” (Complaint, ¶ 4.) Apple was aware of the design flaw but intentionally continued to sell Siri-enabled devices—and continued to record user interactions with Siri—profiting over two hundred billion dollars between 2014 and 2019 alone. (Complaint, ¶¶ 5, 29-30, 32.)

5 The allegations in McKinney are identical to those in other actions, with the exception of Frausto as a first amended complaint has been filed that action and the numbering is slightly different—however, the substance remains identical.

In July 2019, The Guardian published an article revealing Apple was disclosing a portion of Siri recordings with third party contractors for use in its “human grading” program to improve Siri’s functionality. (Complaint, ¶¶ 10, 33.) Apple did not have any protocols in place to securely handle or discard the unauthorized recordings. (Complaint, ¶ 37.) Thereafter, Fumiko Lopez v. Apple Inc. (Case. No. 4:2019-cv-04577) (the “Class Action” or the “Lopez Action”) was filed in the Northern District of California. (Complaint, ¶ 12.) In 2024, the parties in the Class Action reached a tentative settlement.

Apple built its reputation around user privacy and made representations regarding privacy and its committed to protecting it on its consumer-facing webpages. (Complaint, ¶¶ 48- 53, 55.) Apple programmed Siri to assure users that it was only listening when asked. (Complaint, ¶ 54.) By purchasing a Siri Device, users entered into a contract with Apple and became subject to Apple’s Software License Agreement (“SLA”) and Privacy Policy, which is incorporated as part of the SLA. (Complaint, ¶ 62.) Its Privacy Policy, as it existed in August 1, 2019, stated “your personal data should always be protected on your device and never shared without your permission.” (Complaint, ¶ 63.)

Thus, it was reasonable for consumers to expect that their communications, including their private and confidential conversations, would not be intercepted, recorded, used, or disclosed by Apple without their consent based on Defendant’s own public and contractual commitments to user privacy, as well as general consumer expectations with respect to technology companies like Apple. (Complaint, ¶ 65.)

On May 1, 2025, Plaintiff McKinney filed her Complaint which asserts the following causes of action: (1) Wiretap Act (28 U.S.C. § 2510, et seq.); (2) California Invasion of Privacy Act (“CIPA”) (Pen. Cod,e § 630, et seq.); (3) Unfair Competition Law (Bus & Prof. Code, § 17200, et seq.); (4) Right to Privacy (Cal Constitution Art. I, § 1); (5) intrusion upon seclusion; and (6) breach of contract. The other Plaintiffs filed their respective complaints, which assert the same causes of action based on the same facts as follows: Avigliano (May 7, 2025); Koznik (May 9, 2025); Serengulian (May 19, 2025); Elbert (May 22, 2025); Scott (May 22, 2026); Casey (May 23, 2026); Maldonado (May 30, 2025); Padgett (June 11, 2025); Khanbegian (June 11, 2025); Speights (June 13, 2025); Perez (June 18, 2026); Ulrich (June 30, 2025); Frausto (June 30, 2025); 6 Sterner (June 30, 2025); and Mendoza (July 23, 2025).

Each action has a plaintiff named in the caption and an attachment with a list of plaintiffs. However, the Court notes that of the Plaintiffs named in the captions of the actions, only Plaintiffs McKinney, Kopzik, Serengulian, and Khanbegian remain involved in the actions—the remaining “Caption Plaintiffs” (Cesar Avigliano, Kristin Elbert, Adriana Scott, Patrick Casey, Kimberly Maldonado, Elijah Padgett, Nick Speights, Sergeo Perez, Linette Frausto, Kerrie Sterner, Max Ulrich, and Kenneth Mendoza) have been dismissed. (Joint Case Management Statement, p. 7:23-27.)

II. REQUESTS FOR JUDICIAL NOTICE

A. Apple’s Request 7

Apple requests judicial notice of the following items:

6 On July 23, 2025, Plaintiff Frausto filed the operative first amended complaint which asserted the same claims. 7 Apple filed identical requests for judicial notice in support of its motion for each case.

(1) The complaint in Class Action, filed on August 7, 2019 (Dkt. No. 1): Exhibit 1; (2) Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement, dated December 31, 2024 (Lopez, Dkt. No. 336): Exhibit 2; (3) The Lopez Order Granting Motion for Preliminary Approval of Class Action Settlement; Preliminarily Certifying Settlement Class; and Approving Form and Content of Class Notice, dated February 10, 2025 (Lopez, Dkt. No. 341): Exhibit 3; (4) The Lopez Final Approval Order, dated September 4, 2025 (Lopez, Dkt.

No. 406): Exhibit 4; (5) The First Supplemental Declaration of Lacey Rose re: Exclusions, dated August 6, 2025 (Lopez, Dkt. No. 384): Exhibit 5; (6) The Proposed Court-Ordered Curative Notice, dated September 5, 2025 (Lopez, Dkt. No. 408-1): Exhibit 6; (7) The Lopez Second Amended Final Approval Order, dated October 14, 2025 (Lopez, Dkt. No. 425): Exhibit 7; (8) The Lopez Final Judgment, dated October 14, 2025 (Lopez, Dkt. No. 426): Exhibit 8; (9) The “Potter Handy Third Party Opt Outs” Notice of Appeal, dated November 12, 2025 (Lopez, Dkt.

No. 432): Exhibit 9: (10) Plaintiffs’ Motion for Appeal Bonds Under Fed. R. App. P. 7, dated November 14, 2025 (Lopez, Dkt. No. 433): Exhibit 10; (11) Plaintiffs-Appellees’ Motion for Summary Disposition of Potter Handy Third Party Opt-Outs’ Notice of Appeal, dated November 19, 2025, in Lopez v. Apple Inc., Case No. 25-7160 (9th Cir. 2025) (Dkt. Entry 9.1.): Exhibit 11; (12) The Order Granting Voluntary Dismissal from the Ninth Circuit, dated November 25, 2025 (Lopez, Dkt. No. 439): Exhibit 12; (13) The Declaration of Steven Weisbrot re: Notice and Administration, dated June 27, 2025 (Lopez, Dkt.

No. 365-2): Exhibit 13; (14) Alameda County Superior Court Order, filed in In re Essure, JCCP No. 4887 (Alameda Cnty. Super. Ct.), on May 27, 2020: Exhibit 14; (15) Alameda County Superior Court Order re: Hearing on Motion for Stay of Proceedings filed by Kaiser Foundation Health Plan Inc.in Arneja, et al. v. Kaiser Foundation Health Plan Inc., No. 25CV116428 (Alameda Cnty. Super. Ct.), on November 4, 2025: Exhibit 15; and (16) The Respondent’s Superio Court Responses to Petition for Writ of Mandate in Vaughn v.

Tesla, Inc. Case No. A173053, May 15, 2025: Exhibit 16.

Evidence Code section 452, subdivision (d), permits judicial notice of records of any court of this state or any court of record of the United States or of any state of the United States. (Code Civ. Proc., § 452, subd. (d).) Exhibits 1-15 are court records, therefore they are proper items of judicial notice. Thus, the Court takes judicial notice of the existence of the documents and the legal effect of the court orders but does not take notice of the truth of any disputed contents. (Oh v. Teachers Ins. & Annuity Assn. of America (2020) 53 Cal.App.5th 71, 79-81 (Oh).) Accordingly, Apple’s request for judicial notice is GRANTED.

B. Plaintiffs’ Request 8

Plaintiffs request judicial notice of the following items:

8 Plaintiffs filed the same request for judicial notice in support of their respective oppositions.

(1) The Court’s order in Adam Salcido, et al. v. Google LLC (24CV436497) which Sustained Defendant’s Demurrer in part and Overruled in part: Exhibit 1; and (2) The Second Amended Final Approval Order in Lopez, dated October 14, 2025: Exhibit 2.

The exhibits are court records, thus, judicial notice of them is proper. (See Evid. Code § 452, subd. (d).) Thus, the Court takes judicial notice of the existence of the documents and the legal effect of the court orders but does not take notice of the truth of any disputed contents. (Oh, supra, 53 Cal.App.5th at pp. 79-81.) Plaintiff’s request is GRANTED.

II. LEGAL STANDARD

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. ... Thus, ... the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.)

In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) A demurrer will succeed where the allegations and matters subject to judicial notice clearly disclose a defense or bar to recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.)

III. DISCUSSION

Apple demurs to each cause of action in each operative complaint on the grounds that the plaintiffs are misjoined. (Code Civ. Proc., § 430.10, subd. (d).)

A. The Lopez Action

The Lopez Action was filed in 2019 in the United States District Court, Northern District of California. It was a class action involved the Siri triggers on Apple devices. On February 10, 2025, the court granted the Lopez plaintiffs motion for preliminary approval of class action settlement. On September 4, 2025, the court granted the Lopez plaintiffs’ final approval motion. On October 14, 2025, the court issued the second amended final approval order.

B. Misjoinder

Code of Civil Procedure section 378 provides, “(a) all persons may join in one action as plaintiffs if: (1) they assert any right to relief jointly, severally, or in the alternative, in respect

of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or (2) they have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.

“Demurrers on the ground of misjoinder lie only when the defect appears on the face of the complaint or matters judicially noticed.” (Royal Surplus Lines, Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198.) This is rarely the case. (Id. at p. 202.) If it does appear from the face of the complaint or matters judicially noticed that there is a misjoinder, it is appropriate for the court to sustain a demurrer on this ground, and, if no possibility that the defect can be cured by amendment appears, to enter dismissal. (See Moe v. Anderson (2012) 207 Cal.App.4th 826, 831-834 [finding misjoinder where plaintiffs alleged “separate and distinct sexual assaults during separate and distinct time periods” against the same perpetrator, although his employer was properly sued in a single action for negligent hiring and supervision].)

“The purpose of section 378 is to permit the joinder in one action of several causes arising out of identical or related transactions and involving common issues. The statute should be liberally construed so as to permit joinder whenever possible in furtherance of this purpose.” (Coleman v. Twin Coast Newspaper, Inc. (1959) 175 Cal.App.2d 650, 653.) “[I]n order to be joined together as plaintiffs in a lawsuit, plaintiffs must satisfy two requirements: (1) they must allege the same transaction or series of transaction and (2) a common legal or factual question.

This requirement that the right to relief arise from the ‘same transaction or series of transactions’ has been construed broadly so that joinder of plaintiffs is permitted if there is any factual relationship between the claims alleged.” (State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093, 1112-1113, emphasis in original, abrogated on another ground by Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163.)

“California procedural law is infused with a solicitude, if not an altogether outright preference, for the economies of scale achieved by consolidating related cases into a single, centrally managed proceeding. Class actions themselves, as set forth in section 382, constitute the most obvious example . . . . The affinity for economies of scale manifests itself in a number of other procedural contexts . . . . It is also manifested by the statutory provision before us now—the one that allows for permissive joinder in section 378.

An important aspect of the Legislature’s drafting of the statute should not go unremarked: While many procedural statutes commit discretion to the trial judge, this statute commits discretion to the plaintiffs . . . to the plaintiffs themselves. If there is a right to relief arising out of the same series of transactions, it is the plaintiffs who get to decide whether to join together in a common action. Consider the syntax of the opening to section 378 the way the Legislature wrote it: ‘All persons may join in one action as plaintiffs if: (1) They assert any right to relief jointly ... .’ (Italics added.)

It is the plaintiffs who make the initial decision to file jointly.” (Petersen v. Bank of America Corp. (2014) 232 Cal.App.4th 238, 248 (Petersen), emphasis in original [trial court order sustaining demurrer on misjoinder grounds in case involving approximately 965 plaintiffs reversed].) “[T]he key question” is “the existence of ‘common questions of law and fact,’ and not whether . . . there [are] ‘differences in the evidence to be presented and in the legal theories to be used by the various plaintiffs.’ The ‘point’ of section 378 . . . is to allow joinder where ‘any question of law or fact common to all’ plaintiffs will arise.’” (Id. at p. 250, citing and quoting Anaya v.

Superior Court (1984) 160 Cal.App.3d 228, 233 (Anaya).

Apple states that Plaintiffs across the actions before the Court at this time consist of 12,613 plaintiffs who seek to recover based on the events in Lopez. (Apple’s Memorandum of Points and Authorities (“MPA”), p. 9:1-9.) Plaintiffs’ counsel has dismissed 9,839 of the original Plaintiffs. (MPA, p. 9:9-10.) 9 Apple argues that each Plaintiff brings their own individual claims and thus, they must show that their claims arise from the same transactions and occurrences as every other plaintiff. (MPA, p. 9:14-18.) Apple further there are manageability issues as to the Plaintiffs and there are plaintiffs in these actions who do not appear on the final Lopez opt out list. (MPA, p. 10:1-7.)

In opposition, Plaintiffs argue that joinder is proper here because the following facts are common amongst each action: (1) Apple made explicit and enforceable commitments to safeguard user privacy through its public statements and specific privacy policies; each plaintiff owned a Siri-enabled Apple device between 2014 and 2019; during this time period, Siri frequently engaged in “false activations,” whereby the system began recording Plaintiffs’ conversations without any manual initiation or use of the Trigger Words; and Apple disclosed these illegal recordings to unauthorized third-party contractors under a “human grading” program. (Plaintiffs’ Opposition (“Opp.”), pp. 9:18-10:6.) Plaintiffs further assert that their aforementioned facts will require evidence on common issues of liability. (Opp., p. 10:7-19.)

Here, the Plaintiffs allege they owned and used one or more Siri Devices between September 17, 2014, and August 28, 2019; between September 17, 2014 and August 28, 2019, Plaintiffs experienced at least one false activation during a private and confidential communication and/or brought their Siri Devices with them to places where they expected privacy in their communication, including their homes, workplaces, business, healthcare facilities, and other private settings; (Complaint, ¶¶ 44-45.)

In support of its argument that Plaintiffs fail to establish their claim arise out of the same transactions or occurrences, Apple cites to Aghaji v. Bank of America, N.A. (2016) 247 Cal.App.4th 1110 (Aghaji), in which the court concluded the claims were misjoined because the claims arose from unique transactions or experiences and involved different misconduct by the defendants such as improper fees, unauthorized charges, or underreported mortgage payments. (Id. at p. 1121.) On this basis, the court reasoned that there was a lack of a common transaction or occurrence and there were distinct questions of law or fact. (Ibid.)

This is distinguishable from the instant matter because here, all of the claims arise from Apple’s conduct with regard to Siri. Although the specific dates each plaintiff experienced the purported false activation are not alleged, each plaintiff alleges that at least one false activation occurred in the relevant time period. On demurrer, these allegations are taken as true. (See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213- 214.) Moreover, the questions of law and fact are the same as to each plaintiff.

Thus, the claims arise out of common facts and there are common questions of law and fact.

Apple also relies on David v. Medtronic, Inc. (2015) 237 Cal.App.4th 734 (David), the court held that multiple plaintiffs were not properly joined in a products liability action involving medical device products. (Id. at p. 741.) The Court explained that, “[p]laintiffs in other proceedings have been found to be within the ‘series of transactions’ language when they alleged a single, scheme, depending on the same basic misrepresentations and leading to a

9 Dismissed Plaintiffs who failed to opt out of the Lopez settlement are bound by it.

series of transactions exactly similar in kind and manner of operation. [citing to Anaya, supra, 160 Cal.App.3d at p. 232.)]. This occurs, for example, when all plaintiffs were led to purchase property in the same subdivision based on identical misrepresentations about the property. (Aldrich v. Transcontinental Land etc. Co. (1955) 131 Cal.App.2d 788, 791-792.) This may also occur when plaintiffs were all exposed to the same harmful chemicals at the same location... .” (Ibid.) As the Court recognized above, the allegations in the present actions are general. Nevertheless, Plaintiffs’ rely on the same misrepresentations by Apple regarding privacy and Siri. Apple’s conduct is the same as to each plaintiff. Therefore, the Court is not persuaded by Apple’s reliance on David.

In Petersen, supra, the appellate court reversed an order, which sustained a demurrer without leave to amend based on a misjoinder of the plaintiffs. (Id. at p. 247.) The court concluded that joinder was permissible because it found two “aspects of the common plan alleged in the third amended complaint that necessarily will entail common evidence (1) whether Countrywide deliberately encouraged dishonest appraisals and (2) whether Countrywide encouraged its loan officers to conceal loan terms” which pertain to questions regarding liability. (Id. at p. 252.) Moreover, the Court emphasized that its conclusion that joinder is permissible was “based on the commonality regarding liability, not damages,” and it parallelled the case to class actions. (Ibid.) It further reasoned

[f]inally, we must observe that two overall policies of the law are served by joinder in this instance. One is access to justice. To require these plaintiffs to file separately not only clogs up the courts, but also deprives them of economies of scale otherwise available under section 378, particularly in regard to the clearly common proof bearing on Countrywide’s alleged two-pronged scheme to both price fix and mislead borrowers as to loan terms. As far as we can tell, the same experts and whistleblowers will be common to all causes of action based on various of misrepresentation or unfair competition.

The second is the conservation of judicial resources. There is an obvious burden to the trial court if joinder is not allowed...it would not take many such actions before the trial court would be faced with the administrivial task of setting up a grant coordination action, which in all probability—because it will involve different plaintiffs and different actions—will be harder to manage than this single action...put another way, mass joinder here holds the promise of actually decreasing trial court case management time. Unless we adopt the cynical view that requiring each plaintiff to proceed against the corporate defense will make their case go away, we have to consider this aspect of the case.

(Id. at pp. 253-254 [emphasis original].) 10

Here, Plaintiffs rely on the same misrepresentation from Apple and overall conduct from which Plaintiffs’ claims arise are identical. Moreover, in this Court’s view, it would be inefficient for Plaintiffs to individually bring their actions. Furthermore, given the volume of

10 As to the second point, the Court recognizes that there are separate actions before it and not one single action, however, it finds the appellate court’s point regarding judicial resources to be salient and applicable, nonetheless.

Plaintiffs, the Court would likely find itself in a similar place if Plaintiffs are required to individually bring their actions—which would only serve to delay these actions further.

Based on the foregoing, the Court finds that Plaintiff sufficiently allege that the claims arise out of the same transactions or occurrences and they involve common questions of law and fact.

Lastly, Apple argues that the actions are unmanageable in their current form because the Lopez court rejected the opt-out request from submitted by Potter Handy LLP (“Potter Handy”) and Kazerouni Law Goup. 11

Apple directs the Court to the Lopez court’s final approval order issued on September 4, 2025, which states,

The Court finds that the exclusion requests submitted by Potter Handy, LLP (“Potter Handy”) and Kazerouni Law Group (“Kazerouni”) purportedly on behalf of the persons listed on Exhibit B hereto are invalid because they do not reliably reflect an intent on behalf of those persons to exclude themselves from the Settlement Class and do not comply with the requirements of the Settlement Agreement. The Court further finds that Potter Handy and Kazerouni have provided incomplete and misleading information to Settlement Class Members and have interfered with their due process and notice rights under Federal Rule of Civil Procedure 23. Accordingly, the exclusion requests submitted by Potter Handy and Kazerouni purportedly on behalf of the persons listed on Exhibit B are rejected.

(Lopez Final Approval Order, p. 2:16-24.)

The Lopez court issued a curative notice regarding the class action settlement. (See Apple’s RJN, Exh. 6.) Following the deadline for the curative notice, the Lopez court issued its Second Amended Final Approval Order and Final Judgment, which included a list of individuals who timely and validity requested exclusion from the Lopez settlement class. (See Apple’s RJN, Exh. 7.) Counsel for plaintiffs in the Lopez matter filed a notice of appeal on behalf of the third-party individuals whose opt-outs were rejected and they moved for an order requiring plaintiffs’ counsel to post an appeal bond and moved in the Ninth Circuit for an order dismissing the third-party’s notice of appeal. (See Apple’s RJN, Exhs. 9-11.) Plaintiffs’ counsel dismissed the appeal voluntarily. (See Apple’s RJN, Exh. 12.)

Plaintiffs’ counsel has dismissed thousands of Plaintiffs from these actions. Apple asserts that at times, Plaintiffs’ counsel has represented there are 2,766 individuals remaining in this action and at other times they have states there are 2,771. (See Joint Case Management Statement, p. 10:14; 12:21.) Plaintiffs have since dismissed more plaintiffs from the instant actions. Plaintiffs fail to offer any substantive response to these points however, they state the Court can order them to submit an amended pleading identifying new plaintiffs and providing updated lists identifying the plaintiffs involved in this action. (Opp., p. 14:18-25.) The Court agrees with Apple that this presents clear issues regarding the manageability of these actions and will result in further issues. As the Court explained above, joinder is proper in this action.

11 Potter Handy is counsel for Plaintiffs in these actions.

Nevertheless, Plaintiffs are ordered to finalize the list of Plaintiffs involved in these actions and file an amended pleading as to any of the actions impacted by changes to the exhibit plaintiff list and to identify a named plaintiff in each action in which the named plaintiff was previously dismissed.

Apple’s demurrer on the basis of misjoinder is OVERRULED. Nevertheless, for purposes of case management, Plaintiffs shall file amended pleadings naming Plaintiffs in the actions without a named plaintiff; and updating the list of Plaintiffs in the exhibits within 30 days of this order.

IV. CONCLUSION

Apple’s demurrer on the basis of misjoinder is OVERRULED. Plaintiffs shall file amended pleadings naming Plaintiffs in the actions without a named plaintiff; and updating the list of Plaintiffs in the exhibits within 30 days of this order.

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