Dekker v. Vivint Solar, Inc.

[5] 6 UNITED STATES DISTRICT COURT [7] NORTHERN DISTRICT OF CALIFORNIA [9] 10 GERRIE DEKKER, et al., 11 Plaintiffs, No. C 19-07918 WHA 12 v. 13 VIVINT SOLAR, INC., et al., ORDER GRANTING CLASS CERTIFICATION 14 Defendants. [16] 17 INTRODUCTION 18 In this unfair business practices suit, plaintiff moves for certification of a class under 19 Rule 23(b)(2). To the extent stated, the motion is GRANTED. 20 STATEMENT 21 Previous orders described the facts herein (Dkt. Nos. 121, 140). In brief, defendant 22 Vivint Solar, Inc., in its various corporate forms, installs solar panels on customers’ roofs and, 23 at least as advertised, sells those customers the low cost, clean energy produced over a twenty24 year term pursuant to their “power purchase agreement” (PPA). Plaintiff alleges, however, that 25 Vivint’s contract contains unlawful liquidated-damages clauses, provisions which impose 26 harsh and unlawful penalties onto customers should they seek to dissolve the contract. 27 Early on in our action, a March 2020 order compelled all but two plaintiffs to arbitration. 1 arbitration clause, and Mr. Bautista, who had not agreed to arbitrate, given Vivint had the 2 native Spanish speaker, with virtually no English proficiency, sign an English-form contract 3 after conducting negotiations in Spanish (Dkt. No. 47). Vivint appealed that decision, 4 plaintiffs amended their complaint, and the action continued apace (Dkt. Nos. 62, 63). 5 Vivint, however, dropped the ball on its JAMS fee deadline, a material breach of the 6 arbitration agreements under California’s recently enacted Code of Civil Procedure Section 7 1281.97. So, an August 14 order vacated the March 24 order as far as it compelled select 8 plaintiffs to arbitrate and invited those plaintiffs back into this forum (Dkt. No. 84). Vivint 9 appealed this decision as well. 10 Our court of appeals decided Vivint’s first appeal on January 25, 2021. The order didn’t 11 answer many questions, merely dismissing the case for lack of jurisdiction and dictating: “We 12 remand to the district court for it to determine if Plaintiffs should be granted leave to amend 13 the complaint” (Dkt. No. 111). Leave to amend was granted (Dkt. No. 121). In June, Vivint 14 moved for judgment on the pleadings, which was granted as to plaintiffs’ Section 17200 claim 15 as to unfairness based on violations of the Translation Act allegedly endured by Mr. Bautista 16 (Dkt. No. 140). Plaintiffs were permitted to amend their pleadings, and an August 11 order 17 granted the motion for leave to amend in part but denied as futile plaintiffs’ Section 17200 18 unfairness claim as to the Translation Act and further denied leave to include a restitution 19 claim per the CLRA and Section 17200 (Dkt. No. 157). 20 Then, in late October, the other shoe dropped, and our court of appeals ruled on Vivint’s 21 second appeal, finding that whether Vivint’s failure to pay the JAMS filing fees qualifies as a 22 breach of the arbitration agreement fell within the scope of the PPA’s delegation clause. The 23 order compelling those relevant plaintiffs to arbitration was hence reinstated (Dkt. Nos. 177, 24 178). In November, plaintiff Bautista dropped out of the case when he settled with Vivint. 25 Ms. Dekker became our only named plaintiff. 26 Plaintiff now seeks certification of a Rule 23(b)(2) class defined as follows: 27 All persons in California who entered into Version 1 of the 1 (Mot. 2, specific exclusions omitted). Plaintiff asserts a claim for violations of Civil Code § 2 1671 for including liquidated damages clauses in the PPA, as well as claims under Section 3 17200 and the Consumer Legal Remedies Act (CLRA). Both the Section 17200 and CLRA 4 claims are predicated on Vivint’s alleged violation of Section 1671. Plaintiff generally seeks 5 an injunction invalidating the PPA’s liquidated damages provisions (Br. 19). Plaintiff 6 emphasized in both the papers and at the hearing she is not seeking any classwide monetary 7 remedies. 8 Shortly before this class certification motion ripened, Vivint moved for partial summary 9 judgment on three discrete issues related to the injunctive relief plaintiff seeks. Due to those 10 issues comingling with those of class certification, a decision on that motion was held in 11 abeyance until this class certification motion could be heard. That order is filed in tandem with 12 this one. This order follows full briefing and oral argument. 13 ANALYSIS 14 Certification under Rule 23(b)(2) is a two-step process. A plaintiff must first show that 15 the four prerequisites of Rule 23(a) are met: (1) the class is so numerous that joinder of all 16 members is impracticable; (2) there are questions of law or fact common to the class; (3) the 17 claims or defenses of the representative parties are typical of the claims or defenses of the 18 class; and (4) the representative parties will fairly and adequately protect the interests of the 19 class. For a class seeking declaratory or injunctive relief under Rule 23(b)(2), a plaintiff must 20 also establish that “the party opposing the class has acted or refused to act on grounds that 21 apply generally to the class, so that final injunctive relief or corresponding declaratory relief is 22 appropriate respecting the class as a whole.” Rule 23(b)(2) “applies only when a single 23 injunction or declaratory judgment would provide relief to each member of the class.” Wal– 24 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). The plaintiff bears the burden of 25 demonstrating that these requirements are met. Briseno v. ConAgra Foods, Inc., 844 F.3d 26 1121, 1131 (9th Cir. 2017). 27 The Supreme Court has “cautioned that a court’s class-certification analysis must be 1 Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455 , 465–66 (2013) (quoting Wal–Mart, [2] 564 U.S. at 350 ). However, “[m]erits questions may be considered to the extent — but only to 3 the extent — that they are relevant to determining whether the Rule 23 prerequisites for class 4 certification are satisfied.” Ibid. 5 For the reasons that follow, this order will certify a class, but not pursuant to plaintiff’s 6 proposed definition. Instead, this order certifies a Rule 23(b)(2) class with the following 7 definition: 8 All persons in California currently in privity of contract with Vivint Solar because they are subject to Version 1 of the 9 Residential Solar Power Purchase Agreement. 10 This order proceeds through the Rule 23(a) factors before evaluating Rule 23(b)(2). 11 1. NUMEROSITY. 12 Under Rule 23(a)(1), a proposed class must be “so numerous that joinder of all members 13 is impracticable.” Vivint does not contest numerosity. Plaintiff asserts the proposed class 14 numbers approximately 825 people (Oct. 21, 2021 Hrg. Tr. 8–9, Plf’s Exh. 11; Burr Tr. 132, 15 Plf’s Exh. 4, Chang Decl. Exh. 3). 16 In its papers, Vivint clarifies that there are actually “1,064 (not 825) version 1 PPA 17 accounts in California with systems installed and granted permission to operate and 18 approximately 284 (not 166) accounts [of those 1,064 total accounts] reflect[] transfer 19 assignment situations” (Burr Decl. ¶¶ 2–3). Regardless, excluding those individuals no longer 20 in privity of contract with Vivint (as this order’s revised class definition does), the number of 21 individuals with active version 1 PPAs still satisfies the numerosity requirement. 22 2. ADEQUACY. 23 Under Rule 23(a)(4), a proposed class representative is adequate if they “will fairly and 24 adequately protect the interests of the class.” Our court of appeals has explained that a 25 representative meets this standard if they: (1) have no conflicts of interest with other class 26 members, and (2) will prosecute the action vigorously on behalf of the class. Staton v. Boeing 27 Co., 327 F.3d 938, 957 (9th Cir. 2003). 1 Vivint asserts that Ms. Dekker has demonstrated “alarming unfamiliarity” with this 2 litigation, undermining her adequacy as a representative. See Burkhalter Travel Agency v. 3 MacFarms Int’l, Inc., 141 F.R.D. 144 , 153–54 (N.D. Cal. 1991) (citation omitted). Ms. 4 Dekker purportedly did not review any of her discovery responses or filings (Opp. 5–7). 5 Looking to Ms. Dekker’s deposition testimony, Vivint also highlights her lack of knowledge 6 regarding the claims in the action, the remedies she is seeking, the (then) operative complaint, 7 and the key filings herein. Here’s one of Vivint’s examples: 8 Q. Do you believe you have an obligation to supervise your attorney in this lawsuit? [9] A. No [10] 11 (Dekker Tr. 45–46, Chang Decl. Exh. 1, Plf’s Exh. 3 (counsel’s objections omitted)). And 12 here’s another: 13 Q. Are you aware of what the legal claims in this lawsuit are? 14 A. I hope they’re all the things that I’m complaining about. 15 Q. Are you aware that there’s a claim for unfair competition in this action? [16] A. No. [17] Q. Are you aware that there is a Consumer Legal Remedies Act 18 claim in this lawsuit? 19 A. No. But I hope so. 20 Q. Are you aware that there is a claim related to the liquid[ated] damages issue in this lawsuit? [21] A. Liquid[ated] damages. I don’t know [22] 23 (Dekker Tr. 29–30 (cross-talk and counsel’s objections omitted)). These responses certainly 24 raise an eyebrow. Plaintiff, however, dismisses Vivint’s concerns, and explains that Ms. 25 Dekker is a seventy-year-old retiree who is simply less sophisticated than your typical party in 26 federal court (Reply Br. 2–3). 27 This order finds, while a closer call than many, Ms. Dekker qualifies as an adequate class 1 I.B. ex rel. Bohannon v. Facebook, Inc., 82 F. Supp. 3d 1115, 1130 (N.D. Cal. 2015) (citation 2 omitted). Ms. Dekker understands the core issue in this litigation: “I believe that I’m 3 hopefully going to, today, represent all the millions of people that might be out there that are in 4 the same shape as I am and can’t afford to get out of their contracts, and I know that this is, 5 hopefully, going to become a class-certified class action suit” (Dekker Tr. 17). Plaintiff’s 6 counsel also noted that they would actively explain court filings and discovery to Ms. Dekker 7 over the phone, in meetings at her home, and in email correspondence (Bennett Reply Decl. ¶ 8 3). Moreover, no evidence indicates that Ms. Dekker has a conflict with any other class 9 members, or that she will not vigorously prosecute this action. Indeed, she has continued to 10 litigate for years, including several trips to our court of appeals. Justice in federal court is not 11 limited to those sophisticated parties that have a in-depth understanding of the legal minutiae 12 of their action. 13 This order nevertheless advises plaintiff’s counsel that Ms. Dekker must continue to 14 understand and control the major decisions of this litigation. See I.B., 82 F. Supp. 3d at 1130 . 15 3. COMMONALITY. 16 Plaintiff asserts a claim that the PPA contains unenforceable liquidated damages clauses 17 under Section 1671, as well as Section 17200 and CLRA claims predicated on that statutory 18 violation. Plaintiff contends that the validity of the PPA’s liquidated damages provisions will 19 drive the resolution of this litigation, and hence satisfies the commonality requirement. This 20 order agrees. 21 Under Rule 23(a)(2), commonality is satisfied if there are questions of law or fact 22 common to the class. “A common contention need not be one that will be answered, on the 23 merits, in favor of the class. It only must be of such a nature that it is capable of classwide 24 resolution.” Alcantar v. Hobart Serv., 800 F.3d 1047, 1053 (9th Cir. 2015) (quotation marks 25 and citation omitted). What matters “is not the raising of common questions — even in droves 26 — but rather, the capacity of a class-wide proceeding to generate common answers apt to drive 27 the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (quotation and citation omitted). 1 To inform this discussion, this order reviews Section 1671 and the supporting 2 jurisprudence on liquidated damages. California law has “long recognized that a provision for 3 liquidation of damages for contractual breach . . . can under some circumstances be designed 4 as, and operate as, a contractual forfeiture. To prevent such operation, our laws place limits on 5 liquidated damages clauses.” Ridgley v. Topa Thrift & Loan Ass’n, 953 P.2d 484 , 976–77 6 (Cal. 1998). To be valid, a liquidated damages clause must “represent the result of a 7 reasonable endeavor by the parties to estimate a fair average compensation for any loss that 8 may be sustained.” Garrett v. Coast & S. Fed. Sav. & Loan Ass’n, 511 P.2d 1197, 1202 (Cal. 9 1973). If not the result of a reasonable endeavor, the provision is construed as an 10 unenforceable penalty. See Purcell v. Schweitzer, 224 Cal. App. 4th 969, 974 (Cal. Ct. App. 11 2014). 12 Reviewing courts employ a two-part test to determine the validity of a liquidated 13 damages provision. This reasonable endeavor test considers whether: (1) fixing the amount of 14 actual damages was impracticable or extremely difficult; and (2) the amount selected 15 represented a reasonable endeavor to estimate fair compensation for the loss sustained. Absent 16 either of these elements, the liquidated damages provision is unenforceable. The burden of 17 proof is on the proponent of the clause to demonstrate its validity. The test does not require 18 both parties to the contract to expressly negotiate the amount of liquidated damages. Utility 19 Consumers’ Action Network, Inc. v. AT&T Broadband of S. Cal., Inc., 135 Cal. App. 4th 1023 , 20 1029, 1042 (Cal. Ct. App. 2006); 1 Witkin Summary of Cal. Law, Contracts § 545 (11th ed. 21 2021). 22 Considering the first factor in more detail, the seller can establish impracticability by 23 showing “that the measure of actual damages would be a comparatively small amount and that 24 it would be economically impracticable in each instance of a default to require a [seller] to 25 prove to the satisfaction of the [purchaser] the actual damages by accounting procedures.” 26 Garrett, 511 P.2d at 1204 . 27 Turning to the second factor: “Determining whether a reasonable endeavor was made 1 effect.” Utility Consumers, 135 Cal. App. 4th at 1029 . The focus of this inquiry is on whether 2 the liquidated damages were intended to substantially exceed loss in order to generate a profit, 3 not whether liquidated damages were disproportionate from loss due to breach. This requires 4 the seller “to show that it actually engaged in some form of analysis to determine what losses it 5 would sustain from breach, and that it made a genuine and non-pretextual effort to estimate a 6 fair average compensation for the losses to be sustained.” Hitz v. First Interstate Bank, 38 Cal. 7 App. 4th 274, 291 (Cal. Ct. App. 1995). 8 Importantly, “the reasonable endeavor test, to have any meaning, must necessarily focus 9 on those circumstances actually considered in evaluating a liquidated damage provision, not 10 post hoc rationalization.” Cellphone Termination Fee Cases, 193 Cal. App. 4th 298 , 326–27 11 (Cal. Ct. App. 2011). This is because: 12 [F]ocusing solely on hindsight justifications would render the reasonable endeavor requirement meaningless if no effort at 13 foresight were required, and arbitrarily selected charges could be routinely imposed in consumer contracts, subject only to the ability 14 of a company to muster a credible defense if challenged in litigation. If no attempt to make a reasonable assessment of 15 potential loss is required at the outset, and to make the amount of the liquidated damages consonant with that assessment, one of the 16 important functions that liquidated damages serve, removing the uncertainty factor from determining damages from a breach of 17 contract and reducing litigation, would be lost. [18] Ibid. This review is holistic, and considers the “entire agreement, its scope, purpose, and 19 subject matter.” Dyer Bros. Golden W. Iron Works v. Central Iron Works, 189 P. 445 , 447 20 (Cal. 1920). 21 Finally, a provision will not be deemed to impose liquidated damages if it provides “a 22 true option or alternative.” Blank v. Borden, 524 P.2d 127 , 130–31 (Cal. 1974). That is to say, 23 a valid alternative form of performance includes “the element of rational choice,” while an 24 unenforceable liquidated damages clause has the “invidious qualities characteristic of a penalty 25 or forfeiture.” Ibid. However, “when it is manifest that a contract expressed to be performed 26 in the alternative is in fact a contract contemplating but a single, definite performance with an 27 additional charge contingent on the breach of that performance, the provision cannot escape 1 P.2d at 1201. Because an alternative-performance clause does not impose liquidated damages 2 in the first place, its validity need not be evaluated under the reasonable endeavor test traced 3 out in Garrett and its progeny. 4 With this overview in mind, this order applies them to the instant facts. The version 1 5 PPA has two provisions that plaintiff alleges qualify as unenforceable liquidated damages 6 clauses. Here is the relevant part of the customer default clause: 7 If a Customer Default occurs, we may exercise any of the following remedies: (i) terminate this Agreement and demand you 8 pay a Buy-Out Payment; (ii) leave the System in place on your home, but deny You access to and use of the Energy it produces 9 which may be redirected and sold to third parties at our election; (iii) remove the System from Your home; Or (iv) exercise any 10 other remedy provided under applicable law. Notwithstanding the foregoing, your liability arising from a Customer Default will not 11 exceed the Buy-Out Payment that you will be required to pay upon such Customer Default plus any amounts due and owing under this 12 Agreement that you have not yet paid (including unpaid amounts for Energy and interest that has accrued on such unpaid amounts) [13] (PPA ¶ 11, Chang Decl. Exh. 4). Further down, the PPA specifies: “The Buy-Out Payment [14] you will pay us will be Seven Dollars ($7.00) per watt installed. You will own the System and [15] all System Interests once you have paid us the Buy-Out Payment due” (ibid.). And here is the [16] relevant portion of the transfer provision: [17] If you are planning to sell your home to Property Transferee, you 18 will request that the Property Transferee agree in writing with us that Property Transferee will assume your obligations under this 19 Agreement. Property Transferee shall enter into this agreement on or before the date your home is sold. Alternatively, if we 20 determine, that Property Transferee is not adequately creditworthy to assume your obligations under this Agreement upon the sale of 21 your home, or Property Transferee refuses to assume your obligations under this Agreement, we may terminate this 22 Agreement on written notice to You and you will be obligated to pay us an relocation buy-out payment of Four Dollars ($4.00) per 23 watt installed 24 (id. ¶ 12). All class members (as defined by this order) are currently subject to these two 25 provisions. 26 Whether the default and transfer provisions constitute alternative forms of performance 27 raises common questions with common answers capable of driving this litigation. A previous 1 valid alternative-performance clauses because, in part, of the value of certain extrinsic 2 evidence in evaluating the provisions’ validity (Dkt. No. 140). That order noted it would be 3 “illuminating to dig into Vivint’s files to see how it has, in fact, implemented these provisions” 4 (id. at 4). Vivint here raises myriad factors it says require individualized inquiries to determine 5 whether the default provisions are alternative forms of performance. It summarizes: “Whether 6 the transfer fee or default fee presents a valid alternative to performance would require this 7 same type of individualized analysis for each system (and would be specific to a particular 8 date), as each system would have its own system size, appraised fair market value, cost of 9 termination, expected PPA revenue, and cost of breach” (Opp. 19–20). 10 This order rejects the contention that the transfer or default provisions could be rational 11 alternatives forms of performance one day, and liquidated damages provisions the next. 12 Whether the arrangement “realistically contemplates no element of free rational choice” must 13 be “viewed from the time of making the contract.” Blank, 524 P.2d at 131 . The PPA is a 14 contract of adhesion and any relevant extrinsic evidence from when Vivint first began entering 15 into agreements using version 1 of the PPA would reside with Vivint, not with class members. 16 A review of the transfer and default provisions might require separate analyses, but both will 17 have common proof. 18 Next, an evaluation of the default and transfer provisions pursuant to the reasonable 19 endeavor test (if necessary) would also raise common questions and generate common 20 answers. As for the first prong of the test, evaluation of the impracticability of fixing actual 21 damages will not differ customer to customer. Sure, the actual number may differ from 22 customer to customer, as Vivint has stated. But the variables in play and difficulty of the 23 calculation will be the same classwide. 24 For the second step, whether Vivint made a reasonable endeavor to estimate fair 25 compensation for the loss sustained from default and from transfer can also be resolved on a 26 classwide basis. Again, the focus will be on Vivint’s motivation and the purpose in its 27 imposition of the fees and the effect of the fees. Vivint’s motivation will be found within its 1 generally and on the majority of Vivint’s customers, specifically. This analysis will also have 2 common proof. See Cellphone Termination, 193 Cal. App. 4th at 328–29. 3 Indeed, plaintiff here presents evidence that Vivint never attempted to calculate the losses 4 it would incur in the event of a customer default when it began using the version 1 PPA. 5 Vivint’s Rule 30(b)(6) witness testified: 6 Q. Did Vivint Solar do any calculations, prior to the first PPA, related to the losses that they would expect to incur in the event of 7 customer default? 8 A. I am not aware of any documented, written -- any valuation that would have been Vivint Solar’s estimation of losses to a 9 customer default. 10 * * * 11 Q. Has Vivint Solar ever hired a third-party appraiser to determine its losses in the event of customer default? [12] A. No. [13] 14 (Burr Tr. 112, 140). Vivint’s corporate witness similarly testified the company did not attempt 15 to estimate its losses due to the triggering of the transfer clause: 16 Q. Are you aware of any data that was available to Vivint Solar prior to the first PPA being signed that demonstrated or estimated 17 what losses Vivint Solar expected in connection with system transfers? [18] A. No, I’m not aware. I think I -- I mentioned earlier that we 19 anticipated or modeled about half a percent per year of defaults. Transfers can sometimes lead to a default situation. But no one 20 specifically, to my knowledge, called out specific losses -- estimated losses due to transfers. It was just all – we anticipate a 21 half a percent of accounts to no – each year to no longer perform 22 (id. at 154). The reasonable endeavor test focuses on Vivint’s actions and omissions as they 23 relate to the entire class. It does not require a house-by-house inquiry. 24 Vivint asserts that it’s Rule 30(b)(6) witness stated that the company “relies on third25 party independent appraisers to assess the fair market value of a typical system, which Vivint 26 Solar then uses to value all systems in a given geographic area over a given time period” (Opp. 27 17, citing Burr Tr. 112, 134–35). Vivint specifically cites an appraisal from June 2012 that 1 Vivint did use this or another appraisal to calculate its termination fee as originally inserted 2 into version 1 of the PPA then that would be considered in the reasonable endeavor test. The 3 point is, however, this evidence is consistent with trying this litigation on a class-action basis. 4 Finally, Vivint takes issue with plaintiff’s expert Nora Ostrofe, but this order leaves those 5 issues for a later day. Consideration of the report is unnecessary for this order to conclude 6 commonality has been satisfied. We need not dip that far into the merits now. See Amgen, 568 7 U.S. at 466. 8 In sum, common questions with common answers regarding whether the default 9 provisions constitute unenforceable liquidated damages provisions will drive the resolution of 10 this litigation. Both plaintiff’s Section 17200 and CLRA claims are predicated on this analysis. 11 Given that plaintiff is not seeking monetary remedies in any form on behalf of the class, issues 12 like common proof as to restitution need not be considered. Plaintiff has demonstrated 13 commonality. 14 4. TYPICALITY. 15 Pursuant to Rule 23(a)(3), typicality is satisfied if “the claims or defenses of the 16 representative parties are typical of the claims or defenses of the class.” “The test of typicality 17 is whether other members have the same or similar injury, whether the action is based on 18 conduct which is not unique to the named plaintiffs, and whether other class members have 19 been injured by the same course of conduct.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 20 F.3d 1168, 1175 (9th Cir. 2010) (citation omitted). “Under the rule’s permissive standards, 21 representative claims are ‘typical’ if they are reasonably co-extensive with those of absent 22 class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 23 1011, 1020 (9th Cir. 1998). 24 Vivint here once again raises the specter of the statute of limitations as to Ms. Dekker’s 25 claims. Twice previously, orders denied Vivint’s arguments that Ms. Dekker’s claims are 26 untimely (Dkt. Nos. 47 at 10; 140 at 7). Here are the facts. On June 3, 2016, Vivint threatened 27 a default payment of $41,760 (plus removal costs) if Ms. Dekker did not pay her overdue 1 invoices (Chang Decl. Exh. 5). She contested that notice. In her deposition, Ms. Dekker 2 testified: 3 Q. As of the date of your email on June 9, 2016, were you considering a lawsuit against Vivint Solar? [4] A. Yes. I think I already answered that. [5] * * * 6 Q. Would it be fair to say that you were contemplating a lawsuit against Vivint Solar as of September 26, 2018? [7] A. Yes. Didn’t I just say that about -- yes. Okay. Yes. [8] 9 (Dekker Tr. 116–17; 130). Ms. Dekker did not file a lawsuit against Vivint until December 3, 10 2019. The PPA contains a one-year contractual limitations period, and the statute of 11 limitations is three years for a CLRA claim and four years for Section 1671 and Section 17200 12 claims. See Cal. Code Civ. Proc. § 337; Cal. Civ. Code § 1783 ; Cal. Bus. & Prof. Code § 13 17208). Vivint argues that, under either standard, Ms. Dekker’s claims are time barred. 14 But Ms. Dekker, in light of Vivint’s threat of default payment, remains in privity of 15 contract with Vivint and continues to be subject to the PPA (Dekker Tr. 19–20). So do all the 16 individuals included in this order’s definition of the class. Thus, should she suddenly stop 17 paying her fees, Ms. Dekker will risk incurring the default payment. Should she wish to move, 18 Ms. Dekker will be exposed to the transfer payment. Again, plaintiff does not seek monetary 19 remedies. If she did, then the statute of limitations may have limited recovery for previous, 20 untimely harms. But that is not the case here. Previous orders evaluating the statute of 21 limitations noted the relevancy of continuous accrual, one of the classic exceptions to the 22 default last-element accrual rule (Dkt. No. 63 at 3–4). According to the California Supreme 23 Court: 24 Generally speaking, continuous accrual applies whenever there is a continuing or recurring obligation: When an obligation or liability 25 arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period. Because 26 each new breach of such an obligation provides all the elements of a claim — wrongdoing, harm, and causation — each may be 27 treated as an independently actionable wrong with its own time 1 Aryeh v. Canon Bus. Sols., Inc., 292 P.3d 871, 880 (Cal. 2013) (quotation marks and internal 2 citations omitted). The scenario described in Aryeh aligns with the fact pattern described by 3 Ms. Dekker. Vivint does not address continuous accrual in its opposition. 4 In short, Vivint has not adequately shown the litigation of classwide answers will be 5 derailed by statute of limitations issues particularly unique to Ms. Dekker. Typicality is 6 satisfied here. 7 5. INDIVISIBILITY OF DECLARATORY OR INJUNCTIVE RELIEF. 8 With the four requirements of Rule 23(a) satisfied, this order considers Rule 23(b)(2). 9 “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy 10 warranted — the notion that the conduct is such that it can be enjoined or declared unlawful 11 only as to all of the class members or as to none of them.” Wal-Mart, 564 U.S. at 360 (internal 12 quotation marks and citation omitted). 13 Rule 23(b)(2)’s requirements are satisfied where “class members complain of a pattern or 14 practice that is generally applicable to the class as a whole.” Rodriguez v. Hayes, 591 F.3d 15 1105, 1125 (9th Cir. 2010) (quotation marks and citation omitted). Because of their innate 16 cohesion Rule 23(b)(2) classes need not meet the additional requirements of predominance and 17 superiority required for a class certified under Rule 23(b)(3). “Predominance and superiority 18 are self-evident.” Wal-Mart, 564 U.S. at 363 . 19 With some tweaks to plaintiff’s proposed class definition, both criteria of Rule 23(b)(2) 20 are satisfied. First, Vivint has acted on grounds generally applicable to the entire class. Each 21 class member is subject to identical provisions of the version 1 PPA. 22 Second, plaintiff seeks an injunction “invalidating the unlawful liquidated damages 23 provision contained in every PPA” (Br. 19, emphasis in original). Vivint argues this injunctive 24 relief is inappropriate because plaintiff’s proposed class definition includes three groups for 25 whom this relief would be irrelevant and who lack standing: (1) those who already paid the 26 transfer fee and assigned their PPA to another; (2) those who already paid the default fee; and 27 (3) those who executed complete releases of claims related to the PPA (Opp. 13–15). This 1 prospective relief plaintiff seeks. See Wal-Mart, 564 U.S. 364–65. This order finds a slightly 2 more precise class definition solves this problem, and defines the class as follows: All persons 3 in California currently in privity of contract with Vivint Solar because they are subject to 4 Version 1 of the Residential Solar Power Purchase Agreement. See FRCP 23(c)(1)(B); 5 William B. Rubenstein, Newberg on Class Actions § 7:27 (5th ed., 2021). With this revision 6 to the definition, the requested injunctive relief will be appropriate with respect to the class as a 7 whole. 8 Vivint’s two other arguments that plaintiff fails to satisfy Rule 23(b)(2) fail to persuade. 9 First, Vivint raises the statute of limitations issue again, which was addressed above. Second, 10 Vivint contends that those “who paid transfer fees are differently situated from those who, like 11 Ms. Dekker, are challenging the default fees” (Opp. 14). To the extent Vivint is concerned 12 with those who have already paid a transfer fee as compared to those who have already paid a 13 termination fee, this order’s revision to the class definition has addressed that concern. For 14 those customers who are still in privity with Vivint under version 1 of the PPA, they are 15 subject to both the default and transfer provisions. 16 In sum, plaintiff has satisfied her burden under Rule 23(b)(2). 17 6. EVIDENTIARY OBJECTIONS. 18 Plaintiff objects to several paragraphs of the declaration of Colton Burr that Vivint filed 19 in support of its opposition (Dkt. No. 218-7). Plaintiff filed her objections in contravention of 20 Civil Local Rule 7-3(c), which reads in relevant part: “Any evidentiary and procedural 21 objections to the opposition must be contained within the reply brief or memorandum. 22 Pursuant to Civil L.R. 7-4(b), the reply brief or memorandum may not exceed 15 pages of 23 text.” Regardless, this order relied on none of the portions of the Burr declaration that plaintiff 24 objects to, so the objections are DENIED AS MOOT. 25 CONCLUSION 26 For the foregoing reasons, plaintiff’s motion for class certification under Rule 23(b)(2) is 27 GRANTED. The following class is CERTIFIED: Vivint Solar because they are subject to Version 1 of the 1 Residential Solar Power Purchase Agreement. 2 This class definition shall apply for all purposes, including settlement. Plaintiff Gerrie Dekker 3 is hereby APPOINTED as class representative. Plaintiff's counsel Matern Law Group, PC is 4 hereby APPOINTED as class counsel. By APRIL 8 AT NOON, Vivint shall submit a list of people 5 who qualify as class members and the parties shall jointly submit a proposal for class 6 notification with a plan to distribute notice, including by first-class mail. 7 IT IS SO ORDERED. [8] 9 Dated: March 18, 2022. | Pee 11 ~ WILLIAM ALSUP 12 UNITED STATES DISTRICT JUDGE [16] = 17 Z 18