
Ahead of the Curve
Ahead of the Curve is Scali Rasmussen's quarterly newsletter, designed to keep clients and friends ahead of the compliance curve in a rapidly changing industry. We understand you likely read Automotive News and Ward’s and follow the news and alerts from the NADA and CNCDA, among other industry publications. Rather than regurgitate stories you may have read there or that you received from other sources, we strive to provide reasoned, practical take-aways for you to think about or implement at your dealerships, based on real issues our clients are having or trends we are seeing in the industry.
Issue #23 — May 6, 2022
Advertising/Sales/F&I
Vehicle inventory scarcity and dealer markups
What are the dealer’s rights when faced with pressure from factories to curb markups?
Franchise & Operations
Complex Litigation
Proposition 65
Issue #22 — February 7, 2022
Advertising/Sales/F&I
Court of Appeal holds that Covid 19 losses not covered by commercial property insurance
2021 case review: The Inns by the Sea v. Cal. Mutual Ins. Co.
Ninth Circuit ruled a retailer must pay for its own defense in a state consumer protection lawsuit brought against it by the California Attorney General despite insurance policy language providing defense
2021 case review: Adir International, LLC v. Starr Indemnity and Liability Co.
Arbitration
Ninth Circuit holds that mandatory arbitration agreements are enforceable in an employment context despite 2019 law
2021 case review: Martinez-Gonzalez v. Elkhorn Packing Co. LLC
Court of appeal holds that fees on a motion to compel arbitration can only be awarded if the opposition is groundless
2021 case review: Patterson v. Superior Court
California Court of Appeal holds that non-signatory defendant employer can enforce arbitration agreement against employee
2021 case review: Alvarez v. Altamed Health Services Corp`
Labor & Employment
Court of Appeal holds that courts may strike PAGA claims they determine to be unmanageable
2021 case review: Fred Wesson v. Staples The Office Superstore, LLC [**]
California Supreme Court holds that unpaid meal or rest breaks must be paid at a rate that includes non-discretionary bonuses or commissions
2021 case review: Ferra v. Loews Hollywood Hotel LLC
California Supreme Court holds that statute of limitations runs from the time the employee should have discovered they were denied a promotion based on a failure to engage in sexual acts, rather than the time the promotion was given to another
2021 case review: Pollock v. Tri-Modal Distribution Services, Inc.
California Supreme Court holds that employers cannot adjust employee time to the nearest increment in case for denial of meal breaks
2021 case review: Donohue v. AMN Services, LLC
Supreme Court holds that Dynamex test to determine independent contractor status applies to conduct occurring prior to Dynamex decision
2021 case review: Vasquez v. Jan-Pro Franchising International, Inc.
Court of Appeal holds that failure of employer to maintain sufficient records results in assumption of facts contrary to employer’s position
2021 case review: Morales v. Factor Surfaces LLC
Court of Appeal holds that courts may strike PAGA claims they determine to be unmanageable
2021 case review: Fred Wesson v. Staples The Office Superstore, LLC [**]
Privacy & Cybersecurity
US Supreme Court limits what dialing systems result in TCPA liability for phone calls and texting
2021 case review: Facebook, Inc. v. Duguid
California Supreme Court decides that the consent of all parties to a call is required before the call can be recorded, reversing Court of Appeal
2021 case review: Smith v. LoanMe, Inc.
Federal District Court decides that the CCPA does not limit discovery in Federal Court
2021 case review: Will Kaupelis v. Harbor Freight Tools USA, Inc.
Federal District Court clarifies what must be pled to establish liability for CCPA violation, including the timing of the breach
2021 case review: Lavarious Gardiner v. Walmart Inc. et al. case
Section 998 Offers
Court of Appeal holds that 998 offers must include provision stating how to accept the offer, even if the other party communicated acceptance of the offer
2021 case review: Mostafavi Law Group, APC v. Larry Rabineau, APC
Court of Appeal holds that indemnity provision cannot be readily valued and invalidates 998 offer including indemnity provision
2021 case review: Khosravan v. Chevron Corporation, the Court of Appeal
Tort Liability
Supreme Court affirms case applying less exacting standard for liability arising from a failure to warn
2021 case review: Brown v. USA Taekwondo
California Supreme Court holds that property owner is not liable for dangerous condition on property resulting from negligence of contractor
2021 case review: Sandoval v. Qualcomm Inc.
Subpoena Cost Allocation
Court of Appeal upholds award of over $140,000 to public agency to cover costs for responding to subpoena
2021 case review: Park v. Law Offices of Tracey Buck-Walsh
Anti-SLAPP Motions
Court of Appeal holds statements made in SEC disclosure and to investors are protected speech within the scope of the Anti-SLAPP statute
2021 case review: Sugarman v. Benett
Disqualification of a Judicial Officer
Motions for Summary Judgment or Adjudication
Court of Appeal holds that witnesses’ deposition testimony that they lacked personal knowledge of declaration and were pressured to sign it, creates triable issue of fact on summary judgment
2021 case review: Forest Lawn Memorial-Park Assn. v. Superior Ct.
Proposition 65
Ninth Circuit reverses district court ruling enjoining notices of violation for exposure to acrylamide
2021 case review: California Chamber of Commerce v. Xavier Becerra
Issue #21 — December 6, 2021
Labor & Employment
Advertising/Sales/F&I
Regulatory/Licensing
Issue #20 — August 9, 2021
Proposition 65
Real Estate
Specific performance
Enforcement of real property purchase agreements
Labor & Employment
Privacy & Cybersecurity
Dealership Buy/Sells
Complex Litigation
Lemon lawsuits and joint defense agreements
An ounce of prevention is worth a pound of cure
California 998 settlement offers
Recent case law & how to make sure your offer will be upheld in court
Firm News
Issue #19 — May 14, 2021
Real Estate
Regulatory/Licensing
Advertising/Sales/F&I
Dealership Buy/Sells
Labor & Employment
Vaccinations in the workplace
Balancing risk and opportunity
Privacy & Cybersecurity
Complex Litigation
Proposition 65
Firm News
Issue #18 — February 4, 2021
Compliance
Laws and regulations affecting dealerships
2020 — looking back and moving forward, Part 1
Laws and propositions affecting all businesses
2020 — looking back and moving forward, Part 2
Employment laws affecting businesses
2020 — looking back and moving forward, Part 3
What businesses need to know for COVID-19 compliance in 2021
2020 — looking back and moving forward, Part 4
2020 cases affecting dealerships in 2021
2020 — looking back and moving forward, Part 5
Employment cases affecting businesses
2020 — looking back and moving forward, Part 6
Issue #17 — August 1, 2020
Labor & Employment
Employers can’t get a break…
Meal and rest break requirements in California—current legal issues and best practices
Franchise & Operations
Firm News
Issue #16 — January 27, 2020
Compliance
An aggressive DMV and accusations by mail
2019 cases affecting auto dealers: Part 1
Recent cases demonstrate the importance of making websites accessible
2019 cases affecting auto dealers: Part 2
Advertising/Sales/F&I
California courts continue to impose strict restrictions on CLRA correction offers
2019 cases affecting auto dealers: Part 3
California court finds manufacturer steps into retailers shoes when it offers express warranty for certified pre-owned vehicles
2019 cases affecting auto dealers: Part 4
Complex Litigation
California Supreme Court sets low bar for ascertaining membership for a class action
2019 cases affecting auto dealers: Part 5
Arbitration: the roller-coaster ride continues
2019 cases affecting auto dealers: Part 7
Labor & Employment
Significant employment cases of 2019
2019 cases affecting auto dealers: Part 6
Issue #15 — August 5, 2019
Complex Litigation
Privacy & Cybersecurity
Data breaches continue to make the news
Take action to secure your customer data
Labor & Employment
Compliance
F&I/Consumer
Firm News
Issue #14 — April 4, 2019
Proposition 65
Regulatory/Licensing
F&I/Consumer
Warren v. Kia Motors America, Inc.
Another cautionary tale for California auto dealers