Gerrie Dekker; v. Vivint Solar, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERRIE DEKKER; et al.,
Plaintiffs-Appellees,
v.
VIVINT SOLAR, INC.; et al.,
Defendants-Appellants.
No. 20-16584
D.C. No. 3:19-cv-07918-WHA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted October 18, 2021**
San Francisco, California
Before: BADE and BUMATAY, Circuit Judges, and SESSIONS,*** District
Judge.
Vivint Solar appeals the district court’s order vacating its prior order
compelling arbitration between Vivint and Plaintiffs Karen Barajas (as executor of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
OCT 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the Bryson estate) and Gennie Hilliard (“Plaintiffs”).1 We review an order vacating
arbitration de novo. See Kilgore v. KeyBank, Nat. Ass’n, 718 F.3d 1052, 1057 (9th
Cir. 2013) (en banc); Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 719 (9th Cir. 1999)
(“Determinations of arbitrability, like the interpretation of any contractual provision,
are subject to de novo review.”). We reverse.
When faced with a motion to compel arbitration, a court’s first task is “to
determine whether the parties agreed to arbitrate that dispute.” Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). The Federal
Arbitration Act allows parties to delegate material issues of contract interpretation,
including issues involving the breach of an arbitration agreement, to an arbitrator.
See Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68–70 (2010).
Plaintiffs are California solar panel consumers who sued Vivint, a solar panel
installer incorporated in Utah, for unfair business practices arising under California
law. At the time of purchase, Plaintiffs signed arbitration agreements that contained
delegation clauses. Specifically, the delegation clauses delegated issues of “breach,
default, or termination of th[e] Agreement” and “the determination of the scope or
1 The court dismisses three named plaintiffs, Marlene Rogers, Cindy Piini,
and Marci Hulsey, pursuant to the parties’ settlement notice (Dkt. No. 56). Plaintiffs
raise a Motion to Take Judicial Notice (Dkt. No. 33). We grant that motion and
incorporate the Plaintiffs’ additional exhibits into the Record.

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applicability of th[e arbitration clause]” to the arbitrator. Thus, the parties’
agreements clearly delegated issues involving breach and default to the arbitrator.
Plaintiffs argue that Vivint breached the arbitration agreements by violating §
1281.97 of the California Civil Code. Section 1281.97 provides that, “[i]n an
employment or consumer arbitration . . . if the fees or costs to initiate an arbitration
proceeding are not paid within 30 days after the due date, the drafting party is in
material breach of the arbitration agreement . . . .” Cal. Civ. Code § 1281.97(a).
Plaintiffs argue that Vivint failed to comply with this requirement by making
untimely payments to the arbitrator. As a result, Plaintiffs argue that Vivint breached
the arbitration agreements, entitling Plaintiffs to withdraw from arbitration and seek
vacatur of the arbitration order.
Regardless of the merits of Plaintiffs’ statutory claim under § 1281.97, this
dispute concerns whether there has been a “breach” of the arbitration agreements.
Thus, Plaintiffs’ § 1281.97 argument falls squarely within the scope of the delegation
clause, and it should have been left to the arbitrator to decide.
The district court vacated its arbitration order in part based on Sink v. Aden
Enterprises, Inc., 352 F.3d 1197 (9th Cir. 2003). The district court’s reliance on
Sink was misplaced. In Sink, we upheld a district court’s denial of a motion to
compel arbitration. But, in that case, the company failed to pay its arbitration fees,
and after the undisputed deadline for paying the fees lapsed, the employee sought

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and obtained an order of default from the arbitrator. Id. at 1198–99. Only after the
arbitrator entered default did the employee seek to lift the stay of the district court
proceedings. Id. at 1199. Sink is inapplicable for two reasons. First, unlike in Sink,
no arbitrator found Vivint in default of arbitration. Second, the parties in Sink did
not expressly agree to delegate disputes concerning breach and default to the
arbitrator. Sink thus does not alter the enforceability of the delegation clause
between the parties here.
Because this dispute concerns whether Vivint breached the arbitration
agreements, it falls within the scope of the parties’ delegation clause. The district
court erred in vacating its order compelling arbitration. We remand for the district
court to reinstate its order compelling arbitration.
REVERSED AND REMANDED.

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