Latest 8 Cases: Felisilda v. FCA US LLC (Arbitration & Mediation), Jarboe v. Hanlees Auto Group (Arbitration & Mediation), In re Internet Lending ...

#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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Felisilda v. FCA US LLC

Docket: C086043(Third Appellate District)

Opinion Date: August 17, 2020

Judge: Andrea Lynn Hoch

Areas of Law: Arbitration & Mediation, Civil Procedure, Consumer Law, Contracts, Products Liability

After encountering problems with their used 2011 Dodge Grand Caravan, plaintiffs Dina C. and Pastor O. Felisilda brought an action against Elk Grove Auto Group, Inc., doing business as Elk Grove Dodge Chrysler Jeep (Elk Grove Dodge) and the manufacturer, FCA US LLC (FCA) for violation of the Song-Beverly Consumer Warranty Act. Relying on the retail installment sales contract signed by the Felisildas, Elk Grove Dodge moved to compel arbitration. FCA filed a notice of nonopposition to the motion to compel. The trial court ordered the Felisildas to arbitrate their claim against both Elk Grove Dodge and FCA. In response, the Felisildas dismissed Elk Grove Dodge. The matter was submitted to arbitration, and the arbitrator found in favor of FCA. The trial court confirmed the arbitrator’s decision. The Felisildas appealed, contending: (1) the trial court lacked jurisdiction to compel them to arbitrate their claim against FCA for lack of notice that the motion to compel included FCA; and (2) the trial court lacked discretion to order the Felisildas to arbitrate their claim against FCA because FCA was a nonsignatory to the sales contract. After review, the Court of Appeal concluded the Felisildas forfeited their claim regarding lack of notice by arguing against FCA’s participation in arbitration. Furthermore, the Court concluded the trial court correctly determined the Felisildas’ claim against FCA was encompassed by the arbitration provision in the sales contract.

Jarboe v. Hanlees Auto Group

Docket: A156411A(First Appellate District)

Opinion Date: August 17, 2020

Judge: Peter J. Siggins

Areas of Law: Arbitration & Mediation, Contracts, Labor & Employment Law

Jarboe was hired by DKD. Shortly after he began working, Jarboe was transferred to Leehan. Following his termination at Leehan, Jarboe brought this wage and hour action individually and on behalf of a putative class against the Hanlees Auto Group, its 12 affiliated dealerships (each us a separate corporate entity), including DKD and Leehan, and three individuals. The defendants moved to compel arbitration based on an employment agreement between Jarboe and DKD. The trial court granted the motion as to 11 of the 12 causes of action against DKD but denied the motion as to the other defendants. The trial court allowed Jarboe’s claim under the Private Attorneys General Act of 2004 (PAGA), Labor Code section 2698, to proceed in court against all defendants. The trial court refused to stay the litigation pending arbitration of Jarboe’s claims against DKD. The court of appeal affirmed, rejecting an argument that the other defendants are entitled to enforce the arbitration agreement between Jarboe and DKD as third party beneficiaries of Jarboe’s employment agreement or under the doctrine of equitable estoppel.

In re Internet Lending Cases

Docket: A156573(First Appellate District)

Opinion Date: August 17, 2020

Judge: Jackson

Areas of Law: Civil Procedure, Consumer Law, Native American Law

Rosas filed a representative action based on alleged participation in illegal internet payday loan practices. Defendant AMG is a wholly-owned tribal corporation of Miami Tribe, a federally recognized Indigenous American tribe. Rosas previously challenged a court order granting AMG's motion to quash service of summons for lack of jurisdiction based on tribal sovereign immunity. On remand, the court granted AMG’s motion to dismiss for lack of personal jurisdiction on the basis of tribal sovereign immunity. The court accepted AMG’s argument that the arm-of-the-tribe test should be applied to the current facts relating to its ownership and control rather than the facts that existed when the complaint was filed. The court credited AMG’s new, undisputed evidence concerning significant changes made to AMG’s structure and governance since the prior court ruling—changes that removed the nontribal actors from positions of authority and control and ended its involvement in the business of financial lending. The court of appeal affirmed. The court did not exceed the scope of the remand. When a court determines that a tribal entity is entitled to immunity from suit, the court lacks the authority, absent the tribe’s consent or federal authorization, to bring the tribal entity before the court for any purpose, including for the purpose of sanctioning misconduct.

T.A.W. Performance, LLC v. Brembo, S.P.A.

Dockets: A157400(First Appellate District) , A157841(First Appellate District)

Opinion Date: August 17, 2020

Judge: Petrou

Areas of Law: Civil Procedure, Contracts

In 2014, Brembo, an Italian joint-stock corporation, headquartered in Italy, and TAW, a California LLC with its principal office in North Carolina, entered into an “Exclusive Distribution Agreement” covering brake systems manufactured by Brembo. The parties consented “to the exclusive jurisdiction of the state and federal courts of the State of New York.” In 2016, Brembo sent a termination notice to TAW in North Carolina. TAW filed suit in New York federal court but voluntarily dismissed its lawsuit. Brembo filed a New York state lawsuit seeking damages for TAW’s alleged failure to pay for products shipped to TAW in North Carolina. TAW filed a counterclaim seeking damages based on Brembo’s alleged failure to enforce the agreement’s exclusivity provisions and its termination of the agreement without explanation. While Brembo’s New York lawsuit was pending, TAW filed this California lawsuit, alleging wrongful termination of the agreement. The court of appeal affirmed the trial court in granting Brembo’s motion to quash service of the summons for lack of personal jurisdiction. Brembo’s contacts with the U.S. were already directed away from California before the parties entered into the agreement. The agreement’s choice of law and forum selection clauses reinforce that Brembo did not have fair warning and could not have reasonably anticipated being brought into a California court to defend against TAW’s lawsuit.

California v. Schaffer

Docket: E073302(Fourth Appellate District)

Opinion Date: August 17, 2020

Judge: Fields

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Andras Peter Schaffer was convicted and sentenced to three years in state prison in 2015 for failing to register as a sex offender. He was released on parole in 2016 on the condition he wear a GPS monitoring device and charge it, at least twice daily. He appealed a July 2019 superior court order, finding by a preponderance of the evidence that he violated his parole by failing to keep his GPS monitoring device charged and ordering him to serve 180 days in county jail. Relying on the plurality opinion in United States v. Haymond, 139 S.Ct. 2369 (2019), defendant claimed he had a Fifth and Sixth Amendment right to have a jury determine whether he violated his parole based on proof beyond a reasonable doubt, and the court violated that right by denying his request to allow a jury to determine whether he violated his parole. The Court of Appeal determined defendant did not have a right to have a jury determine whether he violated his parole, and the reasoning of the Haymond plurality did not apply to defendant’s case.

The People v. David C.

Docket: F079739(Fifth Appellate District)

Opinion Date: August 17, 2020

Judge: Jennifer R.S. Detjen

Areas of Law: Criminal Law, Juvenile Law

Minor was adjudged a ward of the juvenile court for crimes he committed when he was 11 years old. Afterwards, Senate Bill No. 439 amended Welfare and Institutions Code section 602 to provide that any minor who is between the ages of 12 years and 17 years, when he or she violates any law is within the jurisdiction of the juvenile court and may be adjudged to be a ward of that court. The Court of Appeal held that the juvenile court's jurisdiction over the minor terminated, by operation of law, when that amendment went into effect. While the court concluded that, under the procedural posture of this case, minor is not entitled to dismissal of the proceedings, including the original charges and wardship determination, that occurred prior to January 1, 2019, the court also concluded that the juvenile court now lacks jurisdiction to adjudicate the alleged violations of probation that occurred after the amendment's effective date. The juvenile court's order denying minor's notice and motion to dismiss for lack of jurisdiction under section 602(a) is affirmed insofar as the motion sought dismissal of proceedings. The court affirmed the order in all other respects.

People v. The North River Insurance Co.

Docket: B295923(Second Appellate District)

Opinion Date: August 17, 2020

Judge: Dennis M. Perluss

Areas of Law: Criminal Law

North River and its bail agent, Bad Boys Bail Bonds, moved in superior court to set aside the summary judgment against them as void because it was entered by a different superior court judge from the one who had declared the forfeiture. The Court of Appeal affirmed the trial court's denial of the motion, holding that Penal Code section 1306 plainly requires the court that declared the forfeiture to enter the summary judgment. However, that language does not state, and does not mean, that the same judge of the court must enter both orders. In this case, the trial court did not err in denying the North River parties' motion to set aside the summary judgment; the record before Judge Kim reflected the earlier declaration of forfeiture, the expiration of the appearance period during which forfeiture could be vacated and the absence of a pending motion to vacate forfeiture; with that information, Judge Kim was required to enter summary judgment in accordance with the bond's terms; and thus there was no due process violation.

Buskirk v. Buskirk

Docket: B295648(Second Appellate District)

Opinion Date: August 17, 2020

Judge: Wiley

Areas of Law: Trusts & Estates

In this family dispute over a trust, the Court of Appeal reversed the trial court's dismissal based on lack of personal jurisdiction. The court held that the trial court erred because the trust had ample connections to California, as do all family members who live elsewhere and who protest jurisdiction in California. In this case, the trust originated and was administered in California, the trust is governed by California law, and the trust holds interests in California real estate. Furthermore, respondents have purposefully availed themselves of the California forum; there is a substantial connection between respondents' forum activities and appellant's claims; and California is a fair place to resolve this family dispute about their trust. Finally, respondents' argument regarding Probate Code sections 17002 and 17005 are unavailing.