Sos Co., Inc. v. E-Collar Technologies, Inc. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOS CO., INC., DBA Dogtra, No. 19-55014
Plaintiff-Appellant, D.C. No.
2:16-cv-09667-AB-AFM
and
DOGTRA CO., LTD., a Republic of Korea MEMORANDUM*
corporation,
Plaintiff,
v.
E-COLLAR TECHNOLOGIES, INC., an
Indiana corporation; HO SUNG SO, an
individual,
Defendants-Appellees,
and
C&D MICRO CO., LTD., a Republic of
Korea corporation; GREG VAN CUREN, an
individual,
Defendants.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted May 8, 2020**
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and HUMETEWA,*** District
Judge.
Plaintiff SOS Co., Inc., dba Dogtra (“Dogtra”) appeals from the district
court’s judgment in favor of defendants E-Collar Technologies, Inc., and Ho Sung
So in a diversity action alleging trade secrets claims under California law. We
review de novo a district court’s grant of a motion to dismiss, as well as a grant of
a motion for judgment on the pleadings. Northstar Fin. Advisors, Inc. v. Schwab
Invs., 904 F.3d 821, 828 (9th Cir. 2018). We review for an abuse of discretion a
district court’s denial of a motion for reconsideration. Kona Enters., Inc. v. Estate
of Bishop, 229 F.3d 877, 883 (9th Cir. 2000). As the parties are familiar with the
facts, we do not recount them here. We affirm.
The district court held that the parties’ purported waiver of the statute of
limitations defense was invalid because it was not “signed by the person obligated”
as required by California Civil Procedure Code section 360.5. On appeal, Dogtra
does not dispute that the alleged waiver is governed by section 360.5, which it fails
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Diane J. Humetewa, United States District Judge for
the District of Arizona, sitting by designation.
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to satisfy because it is unsigned. However, Dogtra argues that the waiver is
nonetheless enforceable based on equitable estoppel, related writings under
California Civil Code section 1642, and ratification.
The district court correctly determined that section 360.5 does not permit the
application of equitable estoppel, related writings, or ratification to enforce the
unsigned waiver. The plain language of the statute unambiguously states that
waivers of the statute of limitations defense must be signed. Cal. Civ. Proc. Code
§ 360.5 (“No waiver shall bar a defense to any action that the action was not
commenced within the time limited by this title unless the waiver is in writing and
signed by the person obligated.” (emphasis added)). In addition, several cases
have held that a purported waiver was invalid under section 360.5 because it was
not in writing and signed. See, e.g., Santangelo v. Allstate Ins. Co., 76 Cal. Rptr.
2d 735, 739 (Ct. App. 1998) (holding that “there [wa]s no valid waiver” of the
statute of limitations because “there was no written agreement signed by the party
to be obligated”).
Moreover, relaxing the signed writing requirement would hinder
section 360.5’s purpose to put an end to the practice of exacting unlimited and
indefinite waivers of the statute of limitations. See Don Johnson Prods., Inc. v.
Rysher Entm’t, LLC, 147 Cal. Rptr. 3d 590, 593-96 (Ct. App. 2012) (detailing the
legislative history of section 360.5). Dogtra’s reliance on Carlton Browne & Co. v.
3
Superior Court, 258 Cal. Rptr. 118, 122-23 (Ct. App. 1989), which held that a
written waiver that is signed by the defendant’s authorized agent is valid under
section 360.5, is misplaced. Unlike here, in Carlton Browne & Co., “[n]othing in
the legislative history of section 360.5 indicate[d] that the Legislature intended to
invalidate a waiver signed by an agent authorized by the defendant to waive the
statute of limitations” and “[a]pplication of the law of agency would in no way
defeat the purpose of section 360.5.” Id. at 123.
AFFIRMED.
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