10/1/2024 - US Court Issues Decision; Ashley Appeals to 9th Circuit

On October 1 2024, the US Court issued a decision in my civil lawsuit, in response to Apple's fourth Motion to Dismiss and third motion to strike. The Court approved six of my claims (including many sub-claims) to move forward to discovery. This includes: Tamney termination in violation of public policy, California Whistleblower Protection Act § 1102.5, Cal. Labor Code §§ 6310 (retaliation for safety activities), 98.6 (retaliation for labor complaints),  232.5 (retaliation for talking about work conditions), and 96k (retaliation for exercising constitutional rights, in furtherance of the labor code, outside of work hours and not on work property). 

The prior May 20 2024 decision had dismissed the Cal. Labor Code § 1102.5 claim entirely but with leave to amend, it was amended, and based on those amendments, in the Oct. 1 2024 decision, six different categories of complaints of unlawful activity were expressly approved to move forward to discovery:

• (1) "violations of the anti-retaliation provisions of environmental laws, specifically, 42 U.S.C. §§ 9610 and 7622 and 15 U.S.C. 2622;
• (2) violation of § 8(a)(1) of the NLRA;
• (3) violation of California General Industry Safety Order 5194;
• (4) violation of 29 U.S.C. § 660;
• (5) violation of the California Constitution’s right to privacy; and
• (6) violation of 42 U.S.C. § 2000e and California Government Code § 12920."

In addition, four claims (Cal. Labor Code § 232, private nuisance, IIED-Cancer, & IIED-Outrage) and two requests for penalties (§§ 98.6 & 1102.5) were dismissed with leave to amend. If all amendments were approved, this would raise the total of active claims to ten individual claims from a pro se plaintiff against a corporation following the corporation filing five motions to dismiss. 

The requested penalties are part of a much larger request for damages, and the only issue to be amended is the statute of limitations tolling theory, of which the Court approved. Similarly, private nuisance is only dismissed due to statute of limitations tolling and the Court already approved my theory of tolling for all the toxic torts. The IIED-Cancer claim was dismissed due to the same statute of limitations request, and also on the merits of intent (though this was a misunderstanding by the Court of the intent required for this tort). Finally, the IIED-Outrage claim was also dismissed with leave to amend, only requesting more details on dates, times, and events. 

While it was a huge victory to have six claims approved to move forward to discovery and another four claims granted leave to amend following so many challenges from Apple, the remainder of the decision included several highly prejudicial dismissals based on abuse of discretion and clear error. Many of the claims were dismissed with prejudice (either due to abuse of discretion, or on a clearly erroneous basis), were also important claims for this litigation and it is highly disfavored to dismiss with prejudice any claims that may have merit, as that is essentially removing any remedy for harm even if the evidence later substantiates that claim. Some of the claims dismissed with prejudice already have evidence showing a nexus with the retaliation. Several of the dismissals with prejudice are important to me enough that I would appeal these dismissals at the end of the case anyways, which could require re-doing the whole trial afterwards.

The court asked me to plead several areas that I did plead already in my Second Amended Complaint, and in the rejected surreply brief thing - but he's insisting they be formally added to the complaint. The statute of limitations tolling facts, IIED facts, and retaliation for talking about pay is probably 15-20 pages of additional pleading. In addition, the Court told me I'm not allowed to 'amend' any part of the existing complaint other than what he expressly gave me permission to, but that I also have to keep the complaint at a max of 75 pages. The current complaint is 74 pages. Further, the only way I could have room to plead these claims is if I surrender to his dismissal with prejudice of ultrahazardous activities, Right to Know retaliation, and unfair business practices claims - which could make it much more difficult, or impossible, to appeal later. Finally, for at least one of the claims (IIED-Cancer) he told me I can amend but then essentially threatened me with sanctions if I try to amend - which coerces me to withdraw that claim and I probably would not be able to appeal it later.

Because of all of this, I filed a Notice of Appeal to the 9th Circuit Court of Appeals on Oct. 1 2024. The case was docketed and a scheduling order for briefs was issued. I will need to convince the appeals court to accept an interlocutory appeal, but I feel confident I can - due to how many claims were dismissed with prejudice due to purely procedural and discretionary decisions, as well as an admitted deviation from the Fed. Rules of Civ. Procedure. 

In addition to some other non-claim-specific procedural issues, the appeal will focus on the dismissal of the entire claim, with prejudice, of: ultrahazardous activities, the breach of good faith and fair dealing, California Unfair Business Practice Act, Cal. Labor Code §§ 1101 and 1102 via 232.5 (retaliation for political activities related to the workplace), and §§ 6399.7 via 6310 (retaliation for Right to Know activities). The appeal will also focus on the dismissal with prejudice of portions of larger claims that were still approved to move forward and/or amend, but without the subclaim, including: reporting violations of smuggling and sanctions laws under § 1102.5; reporting violations of the constitutional right to privacy specific to Gobbler under § 1102.5; reporting violations of substantive  portions of the CERCLA, RCRA, and CAA; and the dismissal with prejudice of the defamation portion of the IIED-Outrage claim. Further, in addition to dismissing the §§ 1101 and 1102 claims, it appears the Court has removed any claims related to the occupation of Palestine, Muslim human rights, and Uyghur forced labor from all claims - which will also be appealed.

Link: Gjovik v Apple - Oct. 1 2024 Decision

Link: Notice of Appeal

​Link: 9th Circuit Docketing Notice & Scheduling Order