Sos Co., Inc. v. E-Collar Technologies, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2020
• Docket: 19-55014
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

2 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.