Opposition ObjectionsCal. Super. - 6th Dist.October 31, 20181 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION T he M az zo la L aw O ff ic e - P. C . 1 0 01 B ay hi ll D riv e, S te . 2 00 Sa n Br un o, C A 9 40 66 Ph on e (6 50 ) 4 03 - 4 80 2 F ax (6 50 ) 2 04 - 6 53 3 Simon A. Mazzola, SBN 197640 The Mazzola Law Office - Professional Corporation 1001 Bayhill Drive, Suite 200 San Bruno, California 94066 Phone: (650) 403-4802 Fax: (650) 204-6533 Attorneys for Plaintiff Stacey Muller SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION STACEY MULLER, Plaintiff, v. VIVINT SOLAR DEVELOPER LLC, and DOES 1 to 50, inclusive, Defendants. Case No. 18 CV 337277 STACEY MULLER’S OPPOSITION TO VIVINT SOLAR DEVELOPER, LLC’S MOTION TO COMPEL ARBITRATION, STAY PROCEEDINGS, AND DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS Date: June 25, 2019 Time: 9:00 am Dept: 19 Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/12/2019 10:50 AM Reviewed By: R. Burciaga Case #18CV337277 Envelope: 2998558 18CV337277 Santa Clara - Civil R. Burciaga 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION T he M az zo la L aw O ff ic e - P. C . 10 01 B ay hi ll D riv e, S te . 2 00 Sa n Br un o, C A 9 40 66 Ph on e (6 50 ) 4 03 -4 80 2 F ax (6 50 ) 2 04 -6 53 3 I. INTRODUCTION Vivint Solar Developer, LLC (“Vivint”) is infamous for luring innocent consumers into signing appalling contracts for solar energy. Vivint’s commissioned door-to-door salespeople make false promises of significant savings, but Vivint actually delivers problems and higher costs, not savings. Its contract obligates consumers to buy power from Vivint for twenty years with a seventy-two percent (72%) cost escalator. Vivint’s contract locks California consumers into a system of terrible customer service, broken promises, and escalating costs. After signing an agreement that allowed Vivint to install solar panels on Stacey Muller’s (“Muller”) home, her residence was damaged by leaks caused by Vivint’s defective installation of its solar panels. Vivint unreasonably denies any responsibility for the leaks or damages. Adding insult to injury, Vivint also significantly overcharged Muller for energy. Despite these failings, Vivint insists that Muller must abide by the remaining fourteen years of an unconscionable contract and continue to pay it. Vivint should not be allowed to enforce its unconscionable contract that intentionally uses arbitration to hide its misdeeds and prevents consumers from taking action to halt Vivint’s unfair business practices. Vivint’s Motion to Compel Arbitration should be denied because of Vivint’s unfair conduct and its illegal contract. II. FACTS A. History of the Underlying Dispute Vivint sent a door-to-door salesperson to Muller’s home, unannounced and uninvited. That salesperson, Mr. Lasho, promised Muller she would save a lot of money on electricity if she signed a contract that day. Muller did not read the contract (“Contract”) and trusted Mr. Lasho’s representations. He told her where to sign and where to initial on the Contract. Muller Decl. ¶ 6. She had no idea that the Contract contained exceedingly one-sided terms that locked her in to buying energy from Vivint with no recourse, even when Vivint breached the Contract. Vivint installed the solar panels on the home in a slipshod manner. The installer drilled many extra holes that punctured the roof membrane and took completely inadequate steps to fill the holes. Because of this, over time the roof leaked and damaged the home. Muller did what she was supposed to do under the Contract and notified Vivint of the problem. After numerous telephone calls, Vivint ‘inspected’ the roof, and fully acquitted itself of any liability, despite unmistakable evidence that its installation caused the leaks. Due to its self- exoneration, Muller had to pay to repair the interior damage and install a new roof at a cost exceeding $25,000. She sought recompense from Vivint, but it refused. To this day, Vivint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION blithely maintains the leaks are Muller’s fault. For over two years, Vivint unlawfully overcharged Muller for electric energy. The solar panels and equipment are Vivint’s property, pursuant to the Contract. Mazzola Decl. ¶ 4. At some point, unbeknownst to Muller but not Vivint, the solar panels stopped reporting power generation to Vivint’s billing system. This triggered an automatic increase in Muller’s monthly bills from Vivint. Vivint knew of the problem because it knew to bill her for estimated usage instead of actual usage once its system stopped responding. Despite this, Vivint did nothing to fix its own faulty equipment or notify Muller. Vivint happily pocketed the cost increase and kept silent about it until Muller’s attorney challenged that behavior. Mazzola Decl. ¶ 5. B. Vivint’s Notorious Conduct is Widespread Muller’s experience with Vivint is hardly an outlier. Vivint’ unfair Contract, improper sales tactics, abysmal customer service, and false promises appear to be its modus operandi. Vivint’s conduct caused the New Mexico Attorney General to file suit against it in 2018. Request for Judicial Notice (“RJN”), Ex. A. That complaint alleges unfair business practices, misrepresentation, fraud, racketeering, and other wrongdoings. It identifies the unfair twenty-year requirement to buy energy, 2.9% annual increases amounting to a 72% overall increase, high pressure sales tactics including false and misleading statements about savings in electrical costs, and a contract of adhesion. Id. Para 15-58. Muller experienced the same problems with Vivint. Vivint has numerous complaints against it with the California Contractors State Licensing Board (“CSLB”). The CSLB has investigated Vivint numerous times and sustained multiple complaints against it for employing non-registered salespersons, departing from trade standards, misrepresentations to obtain contracts, and false advertising. RJN Ex. B. A class action lawsuit was filed against Vivint. RJN Ex. C. The non-profit group Campaign for Accountability (“CfA”) urges California’s Attorney General to investigate Vivint for the same wrongdoing in the New Mexico Attorney General’s lawsuit. RJN Ex. D. CfA’s letter identifies numerous individual cases of California consumers being promised savings but seeing significant cost increases. It also identifies three class action lawsuits filed against Vivint. Numerous complaints have been made against Vivint with the Better Business Bureau. RJN Ex. E. Consumers have voiced their concerns with Vivint in various forms of social media. Those concerns include misrepresentations, damages to the roof of their homes, water leaks, terrible customer service, and other complaints. RJN Ex. F. Vivint’s conduct and practices harmed Muller and numerous other consumers. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION III. ARGUMENT Vivint’s use of an arbitration provision to hide its misdeeds from the public eye and judicial scrutiny must stop here. The Court should look at the nature of Vivint’s Contract, its repeated conduct, and the law to determine that the Contract and its arbitration provision are unconscionable and illegal. The requirement to arbitrate is therefore voidable. A. The Contract Does Not Comply with the Business and Profession Statutes Vivint is a construction contractor and must comply with the California State Licensing Laws (B&P C. §7000 et seq., the “CSLL”), which are designed to protect California consumers from unscrupulous contractors. Chief among the CSLL consumer protections is B&P C. §7159. It applies to any contract for residential construction valued at over $500 “if the work is to be performed in, to, or upon the residence or dwelling unit of the tenant, for the performance of a home improvement, as defined in Section 7151, and includes all labor, services, and materials to be furnished and performed thereunder...” B&P C. §7151 defines home improvement as “repairing, remodeling, altering, converting, or modernizing of, or adding to, residential property…and other improvements of the structures or land which is adjacent to a dwelling house. Home improvement shall also mean the installation of home improvement goods or the furnishing of home improvement services.” Clearly these encompass Vivint’s solar panel installations. Vivint’s Contract is devoid of the consumer protections required by B&P C. §7159. It does not provide the required notices about the CSLB, mechanics liens, or other important terms. The Contract intentionally, but falsely, tries to position itself as not involving home improvement, even though the installation of a solar panel system is clearly home improvement. By intentionally ignoring the required consumer protections, Vivint committed Unfair Business Practices within the meaning of B&P C. §17200. As noted below, Vivint has been disciplined by the CSLB in the recent past for the same type of behavior, but it persists in doing so and will continue to do it until a Court enjoins its Unfair Business Practices. The CSLL require Vivint’s door-to-door salespeople to be registered, but Mr. Lasho was not registered. B&P C. §7152(b) requires “A home improvement salesperson shall register with the board in order to engage in the business of… a home improvement salesperson.” Vivint has an extremely long list of registered home improvement salespersons, but Mr. Lasho does not appear to be one of them. Mazzola Decl. ¶ 6. Since Mr. Lasho was not in compliance with this requirement, he was not authorized or allowed to enter into any contract that binds Muller. When it comes to understanding the Business and Professions Code, Vivint cannot claim 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION ignorance of B&P C. §§7152, 7159, 17200 and other applicable sections. Vivint clearly knew about B&P C. §7191 which governs arbitration clauses in construction contracts. The language in the Contract concerning arbitration exactly tracks that statute. Vivint cannot be allowed to pick and choose which parts of California law it abides and which it disregards depending on which is favorable to Vivint. It clearly intended to ignore the requirements of B&P C. §§7152, 7159, 17200 while taking advantage of §7191 to force consumers into a non-public, expensive, and unfair forum. These actions make the Contract and arbitration provision illegal and voidable. B. The Contract is Unconscionable and Void The Contract is a harsh, one-sided agreement that allows Vivint to install its own solar equipment on consumers’ homes, stick them with a requirement to buy energy from Vivint for twenty years (regardless of Vivint’s actions that damage their property and overcharge them) and leaves them no recourse but expensive arbitration. It has many egregious one-sided terms that make it and the arbitration provision voidable. Its term is for twenty years, requiring a consumer to buy energy from Vivint for a duration that exceeds many mortgages. It has built in increases of at least 2.9% per year. The contract is so one sided as to be an affront to the norms of reasonableness. In one section of this contract of adhesion, Vivint literally requires Muller to indemnify Vivint for Vivint’s own breach of the agreement. The Contract’s fine print states, “…You hereby agree to indemnify…and hold Us harmless…arising out of or in connection with (i) Our Breach of this Agreement, (ii) the failure of the System…” (Section 20, Muller / Mazzola Decl. Ex. A) This is a violation of an unwaivable statutory right. One cannot indemnify another for their own willful misconduct or sole negligence. Civ. Code §2782(a) provides that “provisions, clauses, covenants, or agreements contained in, collateral to, or affecting any construction contract and that purport to indemnify the promisee against liability … or any other loss, damage or expense arising from the sole negligence or willful misconduct of the promisee … are against public policy and are void and unenforceable.” Vivint’s Contract promises to “…(i) design, install and connect the System in material compliance with all applicable laws…” which is obviously untrue in light of the non-compliance with the various provisions of the CSLL. (Section 1) The Contract also illegally attempts to force Muller to waive her rights and exempt itself from responsibility for its actions by stating “No matter the circumstances, the arbitrator shall not award punitive, special, exemplary, indirect, or consequential damages...” (emphasis added; Section 4) It falsely implies that Muller will only have to pay $250 for arbitration, but the Streamlined Arbitration Rules of JAMS require 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION the filing party to pay $1,500 in addition to paying many thousands of dollars for arbitrator compensation and other fees. (Section 4; Mazzola Decl. ¶ 7) The reverse side of the Contract contains terms printed in microscopic font that no one could be expected to be able to read. It gives Vivint the ability to charge Muller any additional costs it wants to by passing along increases op top of the 2.9%. It states “The Energy Price…shall also increase each year by…2.9%. We also have the right, at any time, to increase the Energy price to reflect any taxes, licenses, permits, costs, fees or charges which maybe be charged to us…” (Section 8). It gives Vivint the unilateral right to terminate the Contract, making it an illusory promise and therefore, unenforceable. (Section 15) It allows Vivint to assign the Contract, but prohibits Muller from doing so without its consent. (Sections 13 and 23). It disclaims all warranties and unfairly limits its liability. (Section 18 and 19; Mazzola Decl. Ex. A) These provisions are clear examples of an overly harsh contract that lacks mutuality. C. Applicable Law Deems the Contract and Arbitration Provision Voidable Arbitration provisions are not entitled to the deferential confirmation process that Vivint advocates. The Court must first examine whether it complies with minimum standards consistent with statutory rights. One of the leading cases on whether mandatory arbitration can be enforced is Armendariz v. Foundation Health (2000) 24 Cal.4th 83 where that Court extensively analyzed when one can be compelled to arbitrate and concluded that an arbitration provision must have minimal standards to be enforceable in a matter of statutory rights. In circumstances such at the Vivint Contract, courts will refuse to enforce arbitration provisions that are “unconscionable or contrary to public policy.” Armendariz at 83, 99. Those minimum standards are not present in the Contract and arbitration should not be enforced as a result. Vivint may argue that Armendariz was decided over mandatory arbitration in an employment situation and is limited to same, but its holding applies more broadly than that. The framework of minimum standards applies when one is required to arbitrate in the context of “unwaivable common law and statutory rights.” The Vivint Contract attempts to make Muller arbitrate unwaivable statutory rights pursuant to B&P C. §7159 and §17200 and Civ. C. §2782. Thus the holding in Armendariz applies to the instant matter with the same force. The Armendariz court held that in order to be lawful, a mandatory arbitration provision affecting public policy issues must have five components. It must 1) provide for discovery, 2) require a written decision, 3) provide for relief available in court, 4) limit the forum costs for the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION consumer to normal court costs and 5) be decided by a neutral arbitrator. Armendariz at 653-654. The Contract does not provide for any discovery, violating the first requirement. The Streamlined Arbitration Rules of JAMS (“JAMS Rules”) do not provide for discovery pursuant to C.C.P. §1283.05. The JAMS Rules also subject Muller to costs exponentially higher costs than those in the Superior Court, violating the forum costs provision. A retired judge from JAMS commonly charges around $8,000 per day and overall costs could be $28,380. (Mazzola Decl. ¶¶ 7 & 8) Armendariz provides that an arbitration provision can be rejected on the same grounds for revocation of contract the reviewing court must determine if it is unconscionable. It held, As section 1670.5, subdivision (a) states: “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” Because unconscionability is a reason for refusing to enforce contracts generally, it is also a valid reason for refusing to enforce an arbitration agreement under Code of Civil Procedure section 1281, which, as noted, provides that arbitration agreements are “valid, enforceable and irrevocable, save upon such grounds as exist [at law or in equity] for the revocation of any contract.” … “[U]nconscionability has both a ‘procedural’ and a ‘substantive’ element,” the former focusing on “oppression” or “surprise” due to unequal bargaining power, the latter on “overly harsh” or “one-sided” results. (citation) “The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (citation) But they need not be present in the same degree. “Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.” (citation) In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. Armendariz at 114. The Vivint Contract is also unconscionable, making it void. 1. Procedural Unconscionability is Present in the Contract Procedural unconscionability concerns the manner in which the contract was negotiated and the bargaining power of each party. The case of Abramson v. Juniper (2004) 115 C.A.4th 638 interpreted the Armendariz standards regarding unconscionability. Abramson involved an employee who was subjected to a contract containing an arbitration provision that denied him important rights, lacked mutuality, and exposed him to substantially higher costs. The Abramson court denied enforcement of arbitration because the agreement was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION unconscionable. It held, “The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party. … The component of surprise arises when the challenged terms are ‘hidden in a prolix printed form drafted by the party seeking to enforce them. [Citation.]’ (citation) Where an adhesive contract is oppressive, surprise need not be shown.” Abramson 115 C.A.4th 638, 656. It also found that “Procedural unconscionability turns on adhesiveness-a set of circumstances in which the weaker or ‘adhering’ party is presented a contract drafted by the stronger party on a take it or leave it basis. To put it another way, procedural unconscionability focuses on the oppressiveness of the stronger party’s conduct.” Id. at 662. Muller had no bargaining power to change any of the contents on Vivint’s preprinted form. The Contract was offered to Muller on a take it or leave it basis. The Abramson court found that was sufficiently oppressive, “plaintiff lacked equal bargaining power with respect to the arbitration agreement, which was presented on a take it or leave it basis. The circumstances of this case thus demonstrate a high degree of oppressiveness.” Id. at 663. Muller’s factual circumstances compel the same result and the Contract is procedurally unconscionable. 2. Substantive Unconscionability is Present in the Contract Substantive unconscionability focuses on whether the agreement’s terms are unfairly one- sided and “…the paramount consideration in assessing conscionability is mutuality.” Abramson at 656-567. The Vivint Contract intentionally undermines the statutory protections afforded homeowners under §7159. It burdens Muller with an indemnity obligation that is clearly illegal under Civ. C. §2782 and brazenly absurd to require her to indemnify Vivint when Vivint breaches the agreement. “A contract that contravenes public policy thus is illegal.” Id. at 658. Abramson confirms that when a contract has multiple points of illegality, the court has reason to declare the contract void, rather than severing the offending parts. Citing Armendariz, it states, “The fact that an ‘arbitration agreement contains more than one unlawful provision’ may ‘indicate a systematic effort to impose arbitration on an employee ... as an inferior forum that works to the employer’s advantage’ and may warrant the conclusion ‘that the arbitration agreement is permeated by an unlawful purpose. [Citation.]” Abramson at 659. As noted above, this Contract attempts to make Muller indemnify Vivint for its own breach of contract or the failure of its own system. It locks her into a twenty-year term with escalating costs. Vivint has damaged Muller’s property and overcharged her, but maintains she must continue with the Contract. The arbitration clause does not entitle Muller to discovery, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION something that is essential to proving her case. She will be subjected to JAMS’ arbitration costs in excess of $10,000. Those charges are highly disproportionate to the filing fee of the California Superior Courts. The Contract is a systematic effort to impose unfair arbitration terms on Muller. It must be rejected since it is both procedurally and substantively unconscionable. D. The California Arbitration Act Controls, Not the Federal Arbitration Act Vivint argues in its Moving Papers that the Federal Arbitration Act (“FAA”) controls here. It contends that because it is incorporated in Delaware and has its headquarters in Utah, installing a solar system in San Jose implicates the FAA (MPA 5:21-23 FN1). Vivint is wrong about that assertion. The court in Valencia v. Smyth (2010) 185 C.A.4th 153 confirmed that California’s procedural statutes on arbitration control the instant Motion. That court stated, As noted, under the Rosenthal-Cronus-DIRECTV trilogy, the FAA’s procedural provisions do not apply in state court unless the parties expressly adopt them. The trilogy makes clear that the question is not whether the parties adopted the CAA’s procedural provisions: The state’s procedural statutes (§§ 1281.2, 1290.2) apply by default because Congress intended the comparable FAA sections (9 U.S.C. §§ 3, 4, 10, 11) to apply in federal court. The question, therefore, is whether the parties expressly incorporated the FAA’s procedural provisions into their agreements. Valencia v. Smyth at 177. The Contract does not expressly incorporate the FAA; Vivint does not argue that it does. Instead, the Contract incorporates California law. It states, “This Agreement, and any instrument or agreement required hereunder, shall be governed by, and construed under, the internal laws of the state where the Property is located.” (Section 24; Mazzola Decl. Ex. A) This obviously does not expressly or impliedly incorporate the FAA. It incorporates California law since the Property is located in San Jose, California. The Valencia court held that a functionally equivalent clause that incorporates California law “expressly incorporates the CAA’s [California Arbitration Act] procedural provisions.” Valencia at 177-178. C.C.P. §1281.2 controls here and it allows the Court to decline to enforce the arbitration provision for the reasons mentioned herein because “(b) Grounds exist for rescission of the agreement.” It also states that “If the court determines that there are other issues between the petitioner and the respondent which are not subject to arbitration and which are the subject of a pending action or special proceeding between the petitioner and the respondent and that a determination of such issues may make the arbitration unnecessary, the court may delay its order to arbitrate until the determination of such other issues or until such earlier time as the court specifies.” The Third Cause of Action of Muller’s Complaint is for Rescission. Instead of compelling arbitration, the Court should defer the issue to allow Muller time to conduct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION discovery and prove that she is entitled to Rescission. Muller cannot effectively bring claims to enjoin Vivint’s Unfair Business Practices claims in arbitration. Only a Superior Court Judge can enter an Order enjoining Vivint from continuing to engage in Unfair Business Practices that harm California consumers. An arbitrator cannot issue such an order. The arbitrator has authority over a single dispute, which is why Vivint wants this matter arbitrated. Arbitration will enable Vivint to continue using its illegal contract to harm Muller and other California consumers. The Court should refuse to enforce the arbitration provision because it is unconscionable and illegal. Doing so is the only way that Muller and others will be able to vindicate important public policy concerns designed to prevent this type of harm to California consumers. E. Vivint’s Misrepresentations About the Contract Prevent its Enforcement One of Muller’s causes of action in her Complaint is Fraud because she was promised something she did not receive and was manipulated into signing a Contract she did not read or understand. Due to fraud in the inception of the Contract, “that the issue of fraud should first be adjudicated before rights of the parties under the subcontracts could be determined.” Moseley v. Electronic & Missile Facilities (1963) 374 U.S. 167, 171. When a plaintiff “sufficiently alleged in his complaint that he was induced by fraud to make the agreements and that his assents to the agreements was not voluntary, the determination of whether such fraud or undue influence ever occurred must be initially determined by a court.” Ford v. Shearson (1986) 180 C.A. 3d 1011, 1022. The Ford court denied the motion to compel arbitration. If a party is influenced to believe that she is engaging in a contract for specific goods and services, but is actually given something different, that contract then becomes void, and the motion to compel arbitration should thus be denied. “[C]laims of fraud in the execution of the entire agreement are not arbitrable under either state or federal law. If the entire contract is void ab initio because of fraud, the parties have not agreed to arbitrate any controversy....” Duick v. Toyota Motor Sales (2011) 198 C.A.4th 1316, 1321. The court concluded that defendant deprived plaintiff “of a reasonable opportunity to know the character of the proposed contract. The contract is consequently void because of fraud in the inception, and every part of it is therefore unenforceable, including the arbitration provision.” Id. at 1322. The Duick court held that agreement containing arbitration provisions was void because of fraud in the inception. Muller was similarly misled about the Contract and is entitled to the same relief. The court in A&M Produce v. FMC Corp. (1982) 135 C.A.3d 473, 493 held that a clause 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 MULLER’S OPPOSITION TO VIVINT’S MOTION TO COMPEL ARBITRATION in a contract may be unconscionable even when it was accepted by an informed party, In summary, our review of the totality of circumstances in this case, including the business environment within which the contract was executed, supports the trial court's determination that the disclaimer of warranties and the exclusion of consequential damages in FMC's form contract were unconscionable and therefore unenforceable. When nonnegotiable terms on preprinted form agreements combine with disparate bargaining power, resulting in the allocation of commercial risks in a socially or economically unreasonable manner, the concept of unconscionability as codified in Uniform Commercial Code sections 2-302 and 2-719, subdivision (3), furnishes legal justification for refusing enforcement of the offensive result. Id. The instant Contract is replete with disclaimers of warranties, limitations of damages, and unconscionable terms that mean its arbitration provision should not be enforced. F. Vivint’s Arguments are Wrong Vivint’s MPA (6:20-23) and the Declaration of Brown (Id.) have no basis to assert Muller’s intention to arbitrate. Mr. Brown is a V.P. at Vivint and never met Muller. He is incompetent to testify about her intentions. Moreover, as noted in Muller’s Declaration, she did not read the Contract, but instead signed and initialed where Mr. Lasho indicated. She could not knowingly agree to arbitrate. Muller objects to those assertions; they should be disregarded. Vivint also incorrectly argues a federal case requires the dismissal of Muller’s lawsuit if the Court Orders arbitration to take place. Abramson confirms that even if a matter is ordered to arbitration, the court should retain jurisdiction, not dismiss the case. It states, “The following month, we disposed of the remainder of the judgment, concluding on the merits that the trial court erred in dismissing plaintiff’s action rather than staying it. We therefore reversed the judgment of dismissal and directed the court to stay the action pending arbitration.” Abramson at 645. IV. CONCLUSION The Vivint Contract is unconscionable and its arbitration provision should not be enforced. Muller must have the right to conduct discovery and avoid the exorbitant costs of a JAMS arbitration. Muller respectfully requests that the Court deny Vivint’s Motion to Compel Arbitration, Stay Proceedings, and Dismiss or, in the Alternative, Stay Proceedings. Dated: June 11, 2019 THE MAZZOLA LAW OFFICE - P. C. By: _______________________________ Simon A. Mazzola, Esq. Attorney for Plaintiff Stacey Muller 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PROOF OF SERVICE T h e M az zo la L aw O ff ic e - P .C . 10 01 B ay hi ll D ri ve , S te . 2 00 S an B ru no , C A 9 40 66 P ho ne ( 65 0) 4 03 -4 80 2 F ax ( 65 0) 2 04 -6 53 3 Stacey Muller v. Vivint Solar Developer, LLC Santa Clara Superior Court Case No. 18CV337277 I, the undersigned, declare: I am employed in the County of San Mateo, State of California. I am over the age of eighteen and not a party to this action. My business address is 1001 Bayhill Drive, Suite 200, San Bruno, California 94066. On the date set forth below, I served the following document(s): STACEY MULLER’S OPPOSITION TO VIVINT SOLAR DEVELOPER, LLC’S MOTION TO COMPEL ARBITRATION, STAY PROCEEDINGS, AND DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS DECLARATION OF STACEY MULLER IN SUPPORT OF OPPOSITION TO VIVINT SOLAR DEVELOPER, LLC’S MOTION TO COMPEL ARBITRATION, STAY PROCEEDINGS, AND DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS DECLARATION OF SIMON A. MAZZOLA IN SUPPORT OF STACEY MULLER’S OPPOSITION TO VIVINT SOLAR DEVELOPER, LLC’S MOTION TO COMPEL ARBITRATION, STAY PROCEEDINGS, AND DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF STACEY MULLER’S OPPOSITION TO VIVINT SOLAR DEVELOPER, LLC’S MOTION TO COMPEL ARBITRATION, STAY PROCEEDINGS, AND DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS PROPOSED ORDER (COVER SHEET) - WITH [PROPOSED] ORDER DENYING VIVINT SOLAR DEVELOPER, LLC’S MOTION TO COMPEL ARBITRATION, STAY PROCEEDINGS, AND DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS on the parties to this action, addressed as follows, in the matter described below: (BY U.S. MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at San Pedro, California. (BY PERSONAL MESSENGER SERVICE) I caused such envelope(s) to be delivered by hand this date to the offices of the addressee(s) by messenger service. (BY FEDERAL EXPRESS) I caused each such envelope, with shipping charges fully prepaid, to be delivered [to or picked up by Federal Express Corporation for the next business day delivery addressed as mentioned below. (BY FACSIMILE TRANSMISSION) I will also transmit by facsimile machine the document(s) listed above on the parties, through their attorneys of record. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE (BY ELECTRONIC SERVICE) I will electronically serve via One Legal the document(s) listed above on the parties, through their attorneys of record. Counsel for Defendant Vivint Solar Developer, LLC Melanie J. Vartabedian, Esq. Ballard Spahr LLP One Utah Center 201 South Main Street, Suite 800 Salt Lake City, UT 84111-2221 Telephone: (801) 517-6842 Facsimile: (801) 531-3001 Email: vartabedianm@ballardspahr.com I declare under penalty of perjury that the foregoing is true and correct. Executed on June 12, 2019 at San Pedro, California. Taryn Tharakan
