# Dekker v. Vivint Solar, Inc.

> District Court, N.D. California · August 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10064803

## Case

- **Court:** District Court, N.D. California
- **Decided:** August 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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12 GERRIE DEKKER, et al.,
13 Plaintiffs, No. C 19-07918 WHA

14 v.

15 VIVINT SOLAR, INC., et al., ORDER GRANTING MOTION TO
VACATE ORDER COMPELLING
16 Defendants.
ARBITRATION

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INTRODUCTION
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In this unfair business practices suit, plaintiffs move to vacate a prior order compelling
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them to arbitrate their claims, alleging defendants failed to timely pay their share of arbitration
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fees, a material breach of the arbitration agreement. Because the arbitration filing fees came
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due on defendants’ receipt of the arbitrator’s invoice, their payments came more than 30 days
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later, in violation of state law. To the extent stated below, plaintiffs’ motion is GRANTED.
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STATEMENT
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A March 24 order recited the essence of this case (Dkt. No. 47). __ F. Supp. 3d __, 2020
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WL 1429740 (N.D. Cal. Mar. 24, 2020). In brief, eight plaintiffs, solar panel system
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customers, sued Vivint Solar for a range of unfair business practices. That order, among other
1 things, compelled plaintiffs to arbitrate. Each plaintiff then filed a separate complaint with
2 JAMS on April 29.1 Before any arbitration can begin, JAMS rules require the consumer pay a
3 $250 filing fee and the non-consumer pay a $1,500 filing fee. The parties do not dispute that
4 all plaintiffs timely paid. Defendants’ untimely payment, however, resides at the heart of the
5 present dispute.2
6 Passed in October 2019 and effective January 1 this year, California’s SB 707 amended
7 several sections of the Code of Civil Procedure § 1280 et seq. (the California Arbitration Act).
8 Relevant here, one new provision, § 1281.97, clarified that the drafting party materially
9 breaches an arbitration agreement when it fails to pay the arbitrator’s fees “within 30 days after
10 the due date.”
11 Plaintiffs moved to vacate the prior order compelling them to arbitration when, in their
12 view, defendants failed to pay on time. JAMS Streamlined Arbitration Rules & Procedures,
13 available online, articulated no global policy on the “due date.” JAMS, however, issued
14 statements that control.
15 As stated above, plaintiff Barajas filed her initial complaint with JAMS on April 29.
16 Defendants answered on May 14 (Dkt. No. 68, Exhs. A–B). JAMS promptly sent both parties
17 a “Notice of Intent to Initiate Arbitration” (NOI) that same day, May 14. In the NOI letter,
18 JAMS wrote “[Defendant] must pay the remaining $1500.00 Filing Fee by no later than May
19 28, 2020.” Defendants claim this date, May 28, as the proper payment “due date” (Dkt. No. 69,
20 Exh. A). Plaintiffs contend, however, that payments were “due upon receipt” of the invoice,
21 which defendants received in the Barajas matter on May 15. The invoices showed, in bolded
22 font at the bottom: “Payment is due upon receipt.” Moreover, these invoices came with an
23 automated email from JAMS that read in pertinent part: “Please note that payment is due upon
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1 Because of the COVID-19 pandemic, all service between JAMS and the parties proceeded via
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email only (see, e.g., Dkt. No. 77, Exh. E at 1).

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2 While the March 24 order compelled eight plaintiffs to arbitrate, plaintiffs’ motion concedes that
defendants were not late in paying fees for the Chong, Thompson, and Runyon matters (Dkt. No.
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68 at 4 n.1). Only defendants’ payments in the Barajas, Hilliard, Hulsey, Piini, and Rogers
1 receipt” (Dkt. No. 77, Exhs. C–G) (emphasis added).3 Given that the invoices became “due”
2 upon receipt and defendants were more than 30 days past due, plaintiffs withdrew all five
3 matters from arbitration and filed the instant motion on June 24. Defendants paid all
4 outstanding filing fees on June 26, via overnight mail (Dkt. No. 68, Exhs. S–W; Dkt. No. 69,
5 Exh. H).
6 The timeline of events follows the same pattern for plaintiffs Hilliard, Hulsey, Piini and
7 Rogers, except that the JAMS invoices and NOI letter dates were slightly different. Regarding
8 plaintiff Hilliard, defendants received the invoice on May 21. JAMS issued the NOI letter on
9 May 20, requesting payment by June 5 (Dkt. No. 77, Exh. D at 3–4). Regarding plaintiff
10 Hulsey, the invoice reached defendants on May 22. JAMS issued the NOI letter also on May
11 20, but requested payment by June 3 (Dkt. No. 77, Exh. E at 3–4). For plaintiff Piini, the
12 invoice arrived May 16, but JAMS did not issue the NOI letter until June 11, almost a full
13 month after defendants filed their answer. The letter requested payment by June 17, a mere six
14 days later (Dkt. No. 77, Exh. F at 2, 5). A case manager overseeing the Piini matter also wrote
15 to plaintiffs’ counsel on June 10 that defendant’s payment was outstanding and “is due upon
16 receipt and no later than 30 days” (Dkt. No. 68, Exh. E at 4). Finally, as to plaintiff Rogers,
17 defendants received an invoice on May 22, but JAMS never issued a NOI letter (Dkt. No. 77,
18 Exh. G at 4). All invoices stated in bold font that they were due upon receipt, and all were
19 received no later than May 22.
20 ANALYSIS
21 Federal enforcement of arbitration provisions sits atop arbitration’s goal of “achiev[ing]
22 streamlined proceedings and expeditious results.” AT&T Mobility LLC v. Concepcion, 563
23 U.S. 333, 346 (2011) (quoting Preston v. Ferrer, 552 U.S. 346, 357–58 (2008)). California’s
24 lawmakers have observed “a concerning and troubling trend” in recent years undermining this
25 express goal. The very parties imposing mandatory arbitration provisions in contracts of
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3 In further support of their position, plaintiffs cite an email from Barajas’s case manager at JAMS
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on June 17 explaining that “[Both parties] received their Deposit Request on May [15], 2020.
1 adhesion (usually in employment and consumer contexts) have then refused to pay the fees
2 required to commence the proceedings. This practice “effectively stymie[s] the ability of
3 [claimants] to assert their legal rights.” S. Judiciary Comm. Hr’g on SB 707, 2019–2020, at 6
4 (Cal. Apr. 23, 2019).
5 To better enforce this federal policy, California’s Code of Civil Procedure § 1281.97 now
6 clarifies that a company’s failure to timely pay arbitration fees constitutes a material breach of
7 the agreement. And, if the drafting party materially breaches by failing to pay the fees “within
8 30 days after the due date,” the consumer or employee may withdraw their claim from
9 arbitration, seek adjudication in a court of appropriate jurisdiction, and recoup attorney’s fees
10 resulting from the breach. Under § 1281.99, the breaching party is also subject to monetary
11 sanctions.
12 1. SECTION 1281.97 APPLIES HERE.
13 Defendants argue as a threshold matter that § 1281.97 does not grant plaintiffs’ requested
14 relief on two grounds: (1) the California Code of Civil Procedure only governs procedure
15 within state court, and (2) Section 1281.97 may only waive arbitrations compelled under the
16 California Arbitration Act, not the Federal Arbitration Act. Both arguments are unpersuasive.
17 First, § 1281.97 modifies a substantive right. “[A]rbitration is a matter of contract.”
18 Rent-A-Center, West, Inc. v Jackson, 561 U.S. 63, 67 (2010). The statute defines a drafting
19 party’s failure to pay arbitration fees “within 30 days after the due date” as a “material breach”
20 of the contract. This law, on its face, modifies substantive state contract law. Recall that there
21 is no federal general contract law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). In
22 diversity, the federal courts apply both state substantive law and outcome determinative
23 procedural rules — unless Congress has spoken otherwise. See United Mine Workers of
24 America v. Gibbs, 383 U.S. 715, 726 (1966); Hanna v. Plumer, 380 U.S. 460, 467 (1965);
25 Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945). For example, earlier in this case,
26 defendants employed the California Code of Civil Procedure § 337 to argue that plaintiffs’
27 claims were time barred (Dkt. No. 57 at 4–5). Here, § 1281.97 is outcome determinative (on
1 resolve their dispute in arbitration versus court. Further outcome determinative, the arbitration
2 clause purports to limit the substantive relief available, prohibiting both public injunctive and
3 class representative relief. See Dekker, 2020 WL 1429740 at *2. Section 1281.97
4 simultaneously modifies substantive contract law and substantially determines both the forum
5 and the relief available. It is thus applicable here.
6 Second, defendants correctly recognize that they compelled arbitration under the FAA,
7 not the California Arbitration Act, but here, this is a distinction without a difference. The FAA
8 sits atop state law — it does not wholly displace it. The U.S. Supreme Court has repeatedly
9 affirmed the “liberal federal policy favoring arbitration” that applies “notwithstanding any state
10 substantive or procedural policies to the contrary.” Concepcion, 563 U.S. at 346 (citations
11 omitted). Section 1281.97 is not “to the contrary” of this federal policy. Rather, in enacting
12 the statute, it was the intent of the legislature to better enforce the federal policy of fast and
13 inexpensive dispute resolution.
14 Recall that virtues of arbitration include “streamlined proceedings and expeditious
15 results.” Ibid. The legislature observed that the prior state of the law was inadequate in
16 upholding these aims; it remained “unclear” what remedies consumers had in the event a
17 drafting party “failed to pay for the arbitration in a timely matter.” The amendments thus
18 sought to “deter drafting parties from reneging on their obligation to pay” and “ensur[e] that the
19 party that drafts the arbitration agreement cannot delay adjudication of a dispute by refusing to
20 participate in, or pay for, arbitration.” Assemb. Judiciary Comm. Hr’g on SB 707, 2019-2020
21 at 1, 5, 8 (Cal. June 18, 2019) (emphasis added).
22 Moreover, our court of appeals has found the principle embodied in § 1281.97 is
23 consistent with the FAA. In Sink v. Aden Enterprises, an employer failed to timely pay its
24 arbitration filing fees after repeated notices of the payment’s due date, plus a warning (after the
25 due date had passed) that the arbitrator would enter a default against the company if it did not
26 promptly pay up. 352 F.3d 1197, 1198–99 (2003). The employer still did not pay, so the
27 former employee went back to federal district court. The district court approved this move and
1 Despite the employer’s contentions that the FAA must be strictly construed “to move the
2 parties . . . out of court and into arbitration as quickly and easily as possible,” the panel rejected
3 this reading, finding that the FAA “cannot sensibly be interpreted to require an order
4 compelling arbitration here.” Rather, guided by the legislative intent behind the FAA, our
5 court of appeals found that accepting the employer’s position would “allow a party refusing to
6 cooperate with arbitration to indefinitely postpone litigation.” Such a result runs contrary to
7 “[o]ne purpose of the FAA’s liberal approach to arbitration,” namely, “the efficient and
8 expeditious resolution of claims.” These goals are “not served by . . . returning parties to
9 arbitration upon the motion of a party that is already in default of arbitration.” Id. at 1200–02
10 (citations omitted) (emphasis added). Finally, Sink is of particular relevance here because in
11 enacting § 1281.97, the legislature explicitly declared “[i]t is the intent of the Legislature . . . to
12 affirm the decision[] in . . . Sink v. Aden Enterprises, Inc. that a company’s failure to pay
13 arbitration fees . . . constitutes a breach of the arbitration agreement and allows the non-
14 breaching party to bring a claim in court.”4 SB 707 § 1(f).
15 The legislative history broadly, along with the legislature’s explicit reliance on Sink,
16 show that California intended § 1281.97 to hold companies imposing mandatory arbitration
17 agreements on employees and consumers to their word. Commence the arbitration (like you
18 said you would) — and do so timely (within 30 days after the due date) — or waive arbitration.
19 It is the company that drags its feet, not § 1281.97, that undermines “streamlined proceedings
20 and expeditious results.” Concepcion, 563 U.S. at 346.
21 2. PAYMENT COMES DUE ON THE INVOICE DATE.
22 One question now remains: what does “due date” mean? It is clear, and undisputed, that
23 the drafting party gets a 30-day grace period after payment comes due to settle up with the
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4 The California legislature also sought to affirm the decisions in Armendariz v. Foundation
Health Psychcare Servs. Inc., 24 Cal. 4th 83 (2000) and Brown v. Dillard’s, 430 F.3d 1004 (9th
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Cir. 2005). Those cases held that employees made to arbitrate cannot be required to bear any
expense they would not bear if they had brought the action in court (Armendariz) and that an
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employer’s refusal to participate in arbitration it had mandated constituted a breach of the
1 arbitrator before § 1281.97 considers the party in material breach. But when does that grace
2 period begin — is it the earliest due date or the latest due date that the arbitration provider will
3 accept payment? And what happens if the arbitrator postpones the last due date? The
4 legislature did not define “due date” for us, so we must turn again to legislative intent and
5 relevant decisional law, applying them to the specific facts before us. In doing so, the answer
6 seems clear.
7 The California legislature emphasized timely dispute resolution. The legislature
8 acknowledged that § 1281.97’s material breach provision was a “strict yet reasonable”
9 response in light of the needless delay of arbitration. Assemb. Judiciary Comm. Hr’g on SB
10 707 at 9 (Cal. June 18, 2019). This language is instructive as to the lawmakers’ intent.
11 Balancing both sides’ interests: on the one hand, contract drafters’ reliance interests, and on the
12 other hand, plaintiffs’ interests in quick and efficient dispute resolution, the legislature found
13 that the scales tipped in favor of plaintiffs. While material breach might seem “strict” it is
14 nonetheless “reasonable.”
15 The legislature expressly sought to avoid a “perverse incentive scheme” whereby
16 ambiguity in the law allowed companies to delay adjudication, perhaps even affording them
17 “an incentive to refuse to arbitrate claims . . . in the hope that the frustrated [employees and
18 consumers] would simply abandon them.” Id. at 8 (quoting Brown v. Dillard’s, 430 F.3d 1004,
19 1012 (9th Cir. 2005)) (emphasis added).
20 Yet, this “perverse incentive scheme” remains a distinct possibility under defendants’
21 theory of the due date. At the hearing, defense counsel admitted that, in their view, if JAMS
22 hypothetically granted a due date extension after defendants missed a first given due date,
23 § 1281.97’s 30-day grace period would only begin after defendants missed the second due date
24 (Dkt. No. 81 at 14). Under this view, the arbitrator could postpone time and again, delaying
25 the 30-day grace period for as long as the arbitrator wished. This would subvert the whole
26 point of the new law.
27 Finally, a similar action involving food delivery app Postmates illustrates how other
1 former and current Postmates drivers filed individual arbitration demands against Postmates
2 with the American Arbitration Association on February 15, 2020, pursuant to the mandatory
3 arbitration provisions in their contracts. The AAA notified Postmates of the filings and gave a
4 payment due date of March 16. The AAA wrote that, subject to the newly enacted § 1281.97,
5 “payment must be received by April 15, 2020 or the AAA may close the parties’ cases,” and
6 that it would “not grant any extensions to this payment deadline.” Postmates, now owing over
7 $4.6 million in initial filing fees, sought a TRO to enjoin the drivers from enforcing § 1281.97.
8 The court denied Postmates’ request, finding, among other things, that payment of filing fees
9 would not irreparably harm Postmates, and that the balances of equities favored the drivers,
10 who “have an interest in having their claims heard in a timely matter.” Postmates Inc. v.
11 10,356 Individuals, No. CV 20-2783 PSG (JEMx), 2020 WL 1908302 at *4, 9 (C.D. Cal. Apr.
12 15, 2020) (Judge Philip Gutierrez).
13 There, with Postmates owing over $4.6 million in filing fees for over ten thousand
14 arbitrations, the court refused to temporarily suspend the due date and buy Postmates more
15 time. Here, on the other hand, defendants owed little more than $15,000 across the eight
16 disputes. The district court also echoed California’s legislature when it weighed the competing
17 interests and found that the drivers’ prevailed. “[The drivers] have an interest in being
18 permitted to pursue their wage and hour claims in arbitration, which is supposed to be a speedy
19 and inexpensive alternative to litigation.” Id. at *8 (internal quotations omitted). This
20 decision, along with the clear legislative intent to prevent delays in commencing arbitration,
21 points towards a strict enforcement of the 30-day grace period that begins upon defendants’
22 receipt of invoice.
23 When AAA said payment was due by April 15 without extensions, else the arbitrators
24 could close their case, the court enforced that deadline. This order agrees with AAA’s view of
25 § 1281.97. Here, the JAMS invoices stated that payment was due upon receipt. It is true that
26 JAMS, perhaps in order to keep the business, was willing to let payment slide for a few weeks,
27 but that doesn’t change the fact that it was due and payable upon receipt. Defendants then had
1 30 days to pay or be in material breach, even if JAMS was willing to wait. Waiting is delay,
2 and delay is exactly what the legislature sought to stop.
3 CONCLUSION
4 Plaintiffs’ motion to vacate the March 24 order, as far as it compelled plaintiffs Barajas,
5 Rogers, Hulsey, Piini, and Hilliard to arbitrate, is GRANTED. Per $§ 1281.97(d) and 1281.99(a)
6 defendants SHALL pay plaintiffs’ reasonable attorney’s fees and costs incurred in bringing this
7 motion. The parties shall meet and confer and stipulate to the amount by AUGUST 28 AT 5:00
8 P.M. A further case management conference will be held on AUGUST 20 AT 11:00 A.M. to get
9 this case back on track.
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11 IT IS SO ORDERED.
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13 Dated: August 14, 2020.

—_Prcne
WILLIAM ALSUP
IS UNITED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10064803. Public record. Not legal advice.