Under the discovery rule, "the limitations period does not begin to run until the plaintiff discovers (or reasonably should discover) that he has been injured." Perez v. Wells Fargo Bank, No. C-11-02279 JCS, 2011 WL 3809808, at *14 (N.D. Cal. Aug. 29, 2011). Plaintiffs asserting the discovery rule must plead facts adequate to support its application.
Mot. 16. To state a claim for breach of the implied covenant of good faith and fair dealing, “a plaintiff must identify the specific contractual provision that was frustrated” by the defendant's conduct. Perez v. Wells Fargo Bank, N.A., 2011 WL 3809808, at *18 (N.D. Cal. Aug. 29, 2011). Plaintiffs allege Apple “unfairly withheld the benefit of privacy” by collecting data when Apple's customers requested it refrain from such data collection. Opp. 14 (citing CAC ¶¶ 50-56).
; see accord In re Anthem, Inc. Data Breach Litig., 162 F.Supp.3d 953, 978 (N.D. Cal. 2016); Guccione v. JPMorgan Chase Bank, N.A., No. 3:14-CV-04587 LB, 2015 WL 1968114, at *7 (N.D. Cal. May 1, 2015) (dismissing a pro se plaintiff's breach of contract claim because the plaintiff did not allege any of the deed of trust's terms); Kroetch v. BAC Home Loan Servs., No. C 11-2860 MEJ, 2011 WL 4502350, at *3 (N.D. Cal. Sept. 27, 2011) (dismissing a pro se plaintiff's breach of contract claim because he failed to identify any specific contractual provision); Perez v. Wells Fargo Bank, N.A., No. C-11-02279 JCS, 2011 WL 3809808, at *18 (N.D. Cal. Aug. 29, 2011) (same).
Additionally, the third cause of action fails because at no point does the Countercomplaint identify what specific contractual provision Counter-Defendant's actions frustrated. E.g., Plastino v. Wells Fargo Bank, 873 F.Supp.2d 1179, 1191 (N.D. Cal. 2012) (quoting Perez v. Wells Fargo Bank, N.A., 2011 WL 3809808, at *18 (N.D. Cal. Aug. 29, 2011)) (“to state a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must identify the specific contractual provision that was frustrated.”); Upstrem, Inc. v. BHFO, Inc., 2021 WL 2038324, at *8 (S.D. Cal. May 21, 2021) (same).
at *2-6 (N.D. Cal. July 9, 2012) (entry of an automatic stay, without more, does not constitute judicial “acceptance” of a debtor's prior inconsistent position, a requirement for judicial estoppel); Perez v. Wells Fargo Bank, N.A., No. C-11-02279 JCS, 2011 WL 3809808, at *11-12 (N.D. Cal. Aug. 29, 2011) (same).
In its opposition, LumaSense cites numerous cases in which federal courts have held the opposite and declined to apply California's litigation privilege to federal causes of action. See e.g. Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 851 (9th Cir. 2004) ("A state absolute litigation privilege purporting to confer immunity from suit cannot defeat a federal cause of action."); Perez v. Wells Fargo Bank, N.A., No. C-11-02279 KCS, 2011 WL 3809808, at *12 (N.D. Cal. Aug. 29, 2011) (holding that state litigation privileges are not applicable to federal claims); OEI v. N. Star Capital Acquisitions, LLC, 486 F. Supp. 2d 1089 (C.D. Cal. 2006) (holding that California litigation privilege did not apply to Fair Debt Collection Practices Act claim). As these cases have held, California's litigation privilege does not apply to federal claims; I will not apply the California litigation privilege to LumaSense's federal claims.
The court must dismiss plaintiff's claim because it fails to identify the specific contractual provision frustrated by defendants' conduct. See id.; Plastino, 873 F. Supp. 2d 1191; Perez v. Wells Fargo Bank, N.A., No. C-11-02279 JCS, 2011 WL 3809808, at *18 (N.D. Cal. Aug. 29, 2011). Plaintiff merely incorporates by reference all previous paragraphs, including the three contracts.
To state a claim for breach of this implied promise, "a plaintiff must identify the specific contractual provision that was frustrated" by the defendant's conduct. Perez v. Wells Fargo Bank, N.A. , 2011 WL 3809808, at *18 (N.D. Cal. Aug. 29, 2011). This doctrine cannot, however, "impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement."
Normally, plaintiffs would be given leave to amend their complaint to allege facts supporting the applicability of the delayed discovery rule to their case. See, e.g., Perez v. Wells Fargo Bank, N.A., No. C-11-02279 JCS, 2011 WL 3809808, at *14, 22 (N.D. Cal. Aug. 29, 2011). However, the matters judicially noticeable here indicate that plaintiffs learned of the relevant facts that formed the basis of their accounting claim long ago, at the latest in early 2015.
More importantly, "to state a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must identify the specific contractual provision that was frustrated." Plastino v. Wells Fargo Bank, 873 F.Supp.2d 1179, 1191 (N.D.Cal.2012) (quoting Perez v. Wells Fargo Bank, N.A., No. 11-02279, 2011 WL 3809808, at *18 (N.D.Cal. Aug.29, 2011), Gilliland v. Chase Home Fin., LLC, No. 2:13-CV-02042 JAM-AC, 2014 WL 325318, at *4 (E.D. Cal. Jan. 29, 2014)).