Filed 6/24/21 Kruskol v. Apple CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

MARC KRUSKOL,

Plaintiff and Appellant,

v.

APPLE, INC.,

Defendant and Respondent.

 B302495

 (Los Angeles County

 Super. Ct. No.

 19STCV11737)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Rupert A. Byrdsong, Judge. Affirmed.

Milstein Jackson Fairchild & Wade, Gillian L. Wade, Sara 

D. Avila, and David F. Slade for Plaintiff and Appellant.

Covington & Burling, Mitchell A. Kamin, Emily Johnson 

Henn, Neema T. Sahni, Patrick R. Carey, and Carlton E. Forbes

for Defendant and Respondent.
2

I. INTRODUCTION

Plaintiff Marc Kruskol appeals from a judgment following 

the trial court’s sustaining of a demurrer without leave to amend. 

We affirm.

II. FACTUAL BACKGROUND

“On demurrer review, we accept the truth of material facts 

properly pleaded, but not contentions, deductions, or conclusions 

of fact or law. We may also consider matters subject to judicial 

notice.” (State Dept. of State Hospitals v. Superior Court (2015) 

61 Cal.4th 339, 346.) We summarize the facts alleged by plaintiff 

in the second amended complaint as follows.

Defendant Apple, Inc. (Apple) sells, among other devices, 

iPhones that use the “iOS” operating system. Apple releases new 

models of iPhones on a semi-annual basis and also regularly 

updates the operating system, including with security patches 

and repairs to existing flaws. Apple designs the operating system 

updates in order to optimize the performance of the latest-model 

iPhone. Such updates, however, strain the hardware, including 

the batteries, of earlier models.

On December 14, 2014, plaintiff purchased an iPhone 6. By 

late 2016, older-model iPhones were experiencing extremely 

decreased performance due to battery degradation and, in many 

instances, were shutting off completely.

In January 2017, Apple introduced an operating system 

update that prevented unexpected shut downs by slowing the 

performance of older-model iPhones, including the iPhone 6. 

During 2017, users of older-model iPhones, including plaintiff, 
3

updated the operating system, which resulted in decreased 

performance and battery degradation. Many users, including 

plaintiff, thus elected to replace the batteries on their oldermodel iPhones with third-party batteries.

In December 2017, Apple announced that throughout 2018,

it would offer a discounted price on battery replacements for 

iPhone 6 and later models, which would cost $29 instead of the 

usual cost of $79 (reduced-price battery replacement program). 

The reduced-price battery replacement program, however, 

excluded consumers, like plaintiff, who had replaced the batteries

of their iPhones with third-party batteries.

On December 23, 2018, plaintiff went to an Apple store in 

Century City to have his iPhone battery replaced as part of the 

reduced-price battery replacement program. An employee at the 

store advised plaintiff that his iPhone did not qualify for the 

program because it contained a third-party battery. Plaintiff was 

also turned away by the Apple store in Valencia.

Effective February 28, 2019, after the termination of the 

reduced-price battery replacement program, Apple reversed its 

policy of refusing to service iPhones with third-party batteries.

III. PROCEDURAL BACKGROUND

A. UCL Claim

On April 4, 2019, plaintiff filed his initial complaint against 

Apple for violation of the Unfair Competition Law (UCL; Bus. & 

Prof. Code1, § 17200 et seq.). On June 10, 2019, plaintiff filed his 

1 Further statutory references are to the Business and 

Professions Code.
4

first amended complaint; and, on July 23, 2019, he filed the 

operative second amended complaint.

The second amended complaint alleged a single cause of 

action for violation of the UCL. Specifically, plaintiff alleged that 

Apple engaged in an unfair business practice by “establishing 

discriminatory repair policies (i.e., refusing to repair Apple 

products, wholesale, if they contained third-party aftermarket 

parts) thereby depriving customers of the benefit of the reducedprice battery replacement program and potentially continuing to 

harm customers by refusing to service its products if customers 

previously resorted to third-party repair.” Plaintiff also alleged 

that Apple’s conduct was fraudulent as Apple falsely represented 

that its discriminatory repair policies were “lawful, thereby 

depriving customers of the benefit of the reduced-price battery 

replacement program and potentially continuing to harm 

customers by refusing to service its products if customers

previously resorted to third-party repair.”

Plaintiff alleged that he was injured by Apple’s practice

because: “he was deprived of the right to replace his iPhone 

battery at a reduced cost (thus losing the benefit of a $29 battery, 

and instead being forced to pay $79 if he wishes to have a 

replacement Apple battery); unless and until he purchases an 

Apple battery, he is at risk of . . . limiting or even disabling his 

phone’s functionality; and he lost time at work attempting to 

exercise his rights under Apple’s reduced-price battery 

replacement program (and had attendant travel-related costs).”

Although plaintiff acknowledged that even before he filed 

his initial complaint, Apple had reversed its policy of refusing to 

service iPhones with third-party batteries, plaintiff alleged that 

Apple had “not publicly confirmed the existence of this policy 
5

reversal, nor does the public know the full contours of this new 

policy.” And, “[n]othing prohibits Apple from doing something 

similar in the future, to the detriment of the general public.”

Plaintiff requested, as relief, a judgment “enjoining Apple 

from further unlawful, unfair and/or fraudulent practices with 

respect to the repair policies associated with Apple products and 

requiring Apple to provide [re-institution of the reduced-price 

battery replacement program to] members of the public who had 

their Apple products serviced by a third party, including those 

members of the public whom Apple previously turned away for 

$29 battery replacements.” He also sought attorney fees and

“[a]ll other such relief as may be appropriate.”

B. Demurrer

On August 8, 2019, Apple filed its demurrer to the second 

amended complaint. Apple argued, among other things, that 

plaintiff had failed to allege he was entitled to relief under the 

UCL, which only authorizes the remedies of restitution and

injunction. Plaintiff opposed the demurrer, arguing that he had 

sufficiently alleged he was entitled to restitution because he and 

other members of the general public paid substantial sums of 

money for their iPhones, which were diminished in value by 

“precisely $50 . . . .” Plaintiff also contended that the second 

amended complaint sufficiently alleged he was entitled to 

injunctive relief, namely: “(1) a re-institution of Apple’s reducedprice battery replacement program, for iPhone owners with thirdparty batteries who were originally excluded; and (2) an order 

enjoining Apple from engaging in and/or resuming its unfair and 

fraudulent business practices . . . .”
6

On September 6, 2019, the trial court conducted a hearing 

on the demurrer and sustained it, without leave to amend. On 

September 11, 2019, the court entered judgment in favor of 

Apple, from which plaintiff timely appealed.

IV. DISCUSSION

A. Standard of Review

“In reviewing the sufficiency of a complaint against a 

general demurrer, we are guided by long-settled rules. ‘We treat 

the demurrer as admitting all material facts properly pleaded, 

but not contentions, deductions or conclusions of fact or law. 

[Citation.] We also consider matters which may be judicially 

noticed.’ (Serrano v. Priest (1971) 5 Cal.3d 584, 591 . . . .) 

Further, we give the complaint a reasonable interpretation, 

reading it as a whole and its parts in their context. (Speegle v. 

Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 . . . .) When a 

demurrer is sustained, we determine whether the complaint 

states facts sufficient to constitute a cause of action. (See Hill v. 

Miller (1966) 64 Cal.2d 757, 759 . . . .) And when it is sustained 

without leave to amend, we decide whether there is a reasonable 

possibility that the defect can be cured by amendment: if it can 

be, the trial court has abused its discretion and we reverse; if not, 

there has been no abuse of discretion and we affirm. (Kilgore v. 

Younger (1982) 30 Cal.3d 770, 781 . . . ; Cooper v. Leslie Salt Co.

(1969) 70 Cal.2d 627, 636 . . . .) The burden of proving such 

reasonable possibility is squarely on the plaintiff. (Cooper v. 

Leslie Salt Co., supra, [70 Cal.2d] at p. 636.)” (Blank v. Kirwan

(1985) 39 Cal.3d 311, 318.)
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B. Demurrer

“California’s unfair competition law . . . defines ‘unfair 

competition’ to mean and include ‘any unlawful, unfair or 

fraudulent business act or practice and unfair, deceptive, untrue 

or misleading advertising and any act prohibited by [the false 

advertising law (§ 17500 et seq.)].’ (§ 17200.) The UCL’s purpose 

is to protect both consumers and competitors by promoting fair 

competition in commercial markets for goods and services.” 

(Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.)

A UCL action only entitles a plaintiff to certain limited 

relief. Damages are not available; “‘[p]revailing plaintiffs are 

generally limited to injunctive relief and restitution.’” (Korea 

Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 

1144 (Korea Supply); Cel-Tech Communications, Inc. v. Los 

Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179; see 

§ 17203.) A trial court properly sustains a demurrer where a 

complaint fails to allege the existence of a viable remedy under 

the UCL. (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 

440, 467 (Madrid); see Gruenberg v. Aetna Ins. Co. (1973) 9 

Cal.3d 566, 572 [in order to survive demurrer, a plaintiff must 

“‘plead facts showing that he may be entitled to some relief’”].)

1. Restitution

“‘Restitution under . . . section 17203 is confined to 

restoration of any interest in “money or property, real or 

personal, which may have been acquired by means of such unfair 

competition.” (Italics added.) A restitution order against a 

defendant thus requires both that money or property have been 
8

lost by a plaintiff, on the one hand, and that it have been 

acquired by a defendant, on the other.’” (Zhang v. Superior Court 

(2013) 57 Cal.4th 364, 371 (Zhang).) “[T]he California Supreme 

Court has defined a UCL order for restitution as one ‘“compelling 

a UCL defendant to return money obtained through an unfair 

business practice to those persons in interest from whom the 

property was taken, that is, to persons who had an ownership 

interest in the property or those claiming through that person.” 

[Citation.]’ (Korea Supply, supra, 29 Cal.4th 4th at pp. 1144–

1145 . . . .)” (Madrid, supra, 130 Cal.App.4th at p. 453.) “The 

object [of restitution] is to return to the plaintiff ‘“funds in which 

he or she has an ownership interest.”’” (People ex rel. Harris v. 

Aguayo (2017) 11 Cal.App.5th 1150, 1168.)

Plaintiff contends that he sufficiently alleged an 

entitlement to restitution because his exclusion from the reducedprice battery replacement program diminished the value of his 

iPhone by $50, which represented “the difference in battery price 

for repairs of ‘acceptable’ phones vs. phones that had third-party 

batteries.” (Fn. omitted.) The diminution in the value of 

plaintiff’s iPhone, however, even if arguably relevant to measure 

damages, is insufficient to demonstrate that Apple obtained a 

thing of value from plaintiff.

2

Plaintiff additionally argues that he is entitled to 

restitution because Apple acquired money from him in 2014 when 

plaintiff purchased his iPhone 6. We disagree. Plaintiff did not 

2 Plaintiff cites to an unpublished United States District 

Court opinion in support of his contention that “‘“diminution in 

value” is a proper measure of restitution under the UCL.’” We 

disagree with this statement as contrary to Zhang, supra, 57 

Cal.4th at p. 371.
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allege that Apple obtained money “‘“through an unfair business 

practice”’” when it sold him his iPhone. (Madrid, supra, 30 

Cal.App.4th at p. 453.) Indeed, the business practice at issue in 

the second amended complaint allegedly occurred years after 

plaintiff purchased his iPhone.

As alleged in the second amended complaint, Apple did not 

acquire any money from plaintiff in connection with plaintiff’s 

unsuccessful efforts to participate in the reduced-price battery 

replacement program.

3 Rather, Apple refused to provide services

to him. Plaintiff therefore failed sufficiently to allege that he is 

entitled to restitution.

2. Injunctive Relief

We next consider whether plaintiff sufficiently alleged that 

he was entitled to injunctive relief. “A trial court has broad 

authority to enjoin conduct that violates section 17200. 

[Citation.] That authority is expansive but not unlimited. 

Although the [UCL] imposes liability for past acts, in order to 

grant injunctive relief under section 17204 . . . , there must be a 

threat that the wrongful conduct will continue. ‘Injunctive relief 

will be denied if, at the time of the order of judgment, there is no 

reasonable probability that the past acts complained of will recur, 

i.e., where the defendant voluntarily discontinues the wrongful 

conduct.’” (Colgan v. Leatherman Tool Group, Inc. (2006) 135 

Cal.App.4th 663, 702 (Colgan); Davis v. Farmers Ins. Exchange

(2016) 245 Cal.App.4th 1302, 1326–1327; Madrid, supra, 130 

Cal.App.4th at pp. 464–465.)

3 Nor did Apple acquire money from plaintiff when plaintiff 

purchased a battery from a third party.
10

Here, the second amended complaint acknowledged that 

effective February 28, 2019, Apple reversed its purportedly 

discriminatory policy of refusing to service iPhones with thirdparty batteries. Plaintiff nonetheless contends that he 

sufficiently alleged ongoing harm. He cites in support allegations 

in the complaint that: “it is unclear if there is a company-wide 

mandate that stores must repair devices showing signs of thirdparty repair, or if it is discretionary. It is unclear whether the 

policy only implicates batteries on iPhone and iPads or extends to 

other Apple devices and components that are reportedly 

malfunctioning, such as, inter alia, keyboards on Apple laptops. 

Thus, it is presently unknown whether Apple actually did change 

its discriminatory practice and, if so whether it will resume it or 

engage in new discriminatory practices regarding third-party 

repairs and parts. [Fn. omitted.]”

4

That it is “unknown” to plaintiff whether Apple will 

reimplement its prior policy prohibiting repairs on iPhones with

4 Plaintiff additionally cites to footnote 11 of the second 

amended complaint in support of his contention that he 

sufficiently alleged ongoing harm. That footnote explained why 

customers, who had installed third-party batteries, would want to 

purchase a new iPhone battery. Such explanation has no bearing 

on whether plaintiff sufficiently alleged that he was entitled to 

injunctive relief. The footnote additionally alleged that 

“[n]othing prohibits [Apple] from issuing . . . software updates in 

the future, which may disable, completely, phones with thirdparty batteries.” This allegation is irrelevant to the business 

practice at issue in the complaint; and, as we explain below, an

allegation that “[n]othing prohibits” Apple from engaging in an 

unfair or fraudulent business practice in the future is insufficient 

to demonstrate that there is a reasonable probability that it will 

do so.
11

third-party batteries falls far short of alleging, with facts, a 

“‘reasonable probability that the past acts complained of will 

recur.’” (Colgan, supra, 135 Cal.App.4th at p. 702.) The second 

amended complaint’s assertion that “[n]othing prohibits” Apple 

from doing something similar in the future also is insufficient to 

allege a reasonable probability of a recurrence. Indeed, nothing 

prevents any defendant who voluntarily ceases complained of 

conduct from reinstating such conduct. Yet absent a showing of a 

“‘reasonable probability’” of a recurrence, a plaintiff is not 

entitled to injunctive relief under the UCL. (Ibid.)

Finally, that it is “unclear” to plaintiff whether Apple’s 

policy extends to devices other than iPhones also is irrelevant to 

the practice about which plaintiff complained, that is, Apple’s 

policy of refusing to service iPhones with third-party replacement 

batteries and preventing the owners of such iPhones from taking 

advantage of the reduced-price battery replacement program. We 

therefore conclude that plaintiff did not sufficiently allege an 

entitlement to injunctive relief.5

C. Leave to Amend

Plaintiff alternatively argues that even if the trial court 

correctly sustained the demurrer, it should have granted him 

leave to amend. “[I]t is an abuse of the trial court’s discretion to 

sustain a demurrer without leave to amend if there is a 

reasonable possibility the plaintiff can amend the complaint to 

5 Because we find plaintiff failed adequately to allege 

entitlement to relief, we decline to consider the parties’ 

arguments concerning the fraudulent and unfair prongs of the 

UCL.
12

allege any cause of action. [Citation.] To prove such abuse of 

discretion, however, the plaintiff must demonstrate how the 

complaint can be amended. [Citation.] While such a showing can 

be made for the first time to the reviewing court [citation], it 

must be made.” (Smith v. State Farm Mutual Automobile Ins. 

Co. (2001) 93 Cal.App.4th 700, 711; accord, Medina v. Safe-Guard 

Products, Internat., Inc. (2008) 164 Cal.App.4th 105, 112, fn. 8.)

“‘The plaintiff bears the burden of proving there is a 

reasonable possibility of amendment. [Citation.] . . . [¶] To 

satisfy that burden on appeal, a plaintiff “must show in what 

manner he can amend his complaint and how that amendment 

will change the legal effect of his pleading.” [Citation.] The 

assertion of an abstract right to amend does not satisfy this 

burden. [Citation.] The plaintiff must clearly and specifically set 

forth the “applicable substantive law” [citation] and the legal 

basis for amendment, i.e., the elements of the cause of action and 

authority for it. Further, the plaintiff must set forth factual 

allegations that sufficiently state all required elements of that 

cause of action. [Citations.] Allegations must be factual and 

specific, not vague or conclusionary. [Citation.]’” (Rossberg v. 

Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1491; 

Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 

39, 43–44.)

Here, plaintiff makes the bald assertion that he should 

have been allowed leave to amend because Apple’s alleged 

misconduct was ongoing. Plaintiff, however, has failed to meet 

his burden of demonstrating, with factual and specific

allegations, a reasonable possibility that he can cure the defects 

in the second amended complaint to state a viable UCL claim. 
13

The trial court therefore did not abuse its discretion by denying 

him leave to amend.

V. DISPOSITION

The judgment after an order sustaining the demurrer 

without leave to amend is affirmed. Defendant Apple, Inc. is 

entitled to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

EDMON, J.

 Presiding Justice of the Court of Appeal, Second Appellate 

District, Division Three, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.