Yoshida v. Vista Energy Marketing, et al

Filing 47

ORDER signed by District Judge Troy L. Nunley on 1/6/2022; GRANTING 17 Motion to Compel Arbitration; STAYING CASE pending completion of arbitration of Plaintiff's individual claims; DIRECTING the parties to notify the court within 30 days of completing arbitration; and DENYING AS MOOT 18 & 19 Motions to Dismiss. (Coll, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 MONICA YOSHIDA, individually and on behalf of others similarly situated, Plaintiffs, 13 14 15 16 17 18 19 20 21 22 No. 2:20-cv-01944-TLN-CKD ORDER v. VISTA ENERGY MARKETING LP, a Texas limited partnership; IRISH MARKETING LLC, a Texas limited liability company; RANSLEM CAPITAL LP, a Texas Limited partnership; WHALE FAMILY INVESTMENTS LP, a Texas limited partnership; DAVID RANSLEM, an individual’ MICHAEL WHALEN, an individual; RETHINK DIRECT INC., a Pennsylvania corporation; KENNY MCGUFFEY, an individual; TRAVIS SMITH, an individual; and DOES 1– 25,000, inclusive, Defendants. 23 24 This matter is before the Court on Defendants Vista Energy Marketing L.P. (“Vista”) and 25 Irish Marketing, LLC’s (“Irish Marketing”) (collectively, “Defendants”) Motion to Compel 26 Arbitration and Stay Litigation. (ECF No. 17.) Plaintiff Monica Yoshida (“Plaintiff”) filed an 27 opposition. (ECF No. 20.) Defendants filed a reply. (ECF No. 35.) For the reasons set forth 28 below, the Court GRANTS Defendants’ motion. Also pending before the Court is a Motion to 1 1 Dismiss by Vista (ECF No. 19), and a Motion to Dismiss by Defendant Whale Family 2 Investments LP (ECF No. 18). For the reasons set forth below, the motions to dismiss are 3 DENIED as moot. 4 I. FACTUAL AND PROCEDURAL BACKGROUND 5 Vista is an energy company that supplies natural gas and electricity to residential 6 customers in nine states and to commercial customers in fourteen states, including California. 7 (ECF No. 17 at 10.) Irish Marketing is Vista’s sole general partner. (Id.) 8 Pursuant to California regulations, Vista operates as a Core Transport Agent (“CTA”), 9 supplying natural gas to customers serviced by California’s public utilities. (Id.) This program, 10 initiated by the California Public Utilities Commission (“CPUC”), is referred to as the Core Gas 11 Aggregation Service. (Id.) Pacific Gas and Electric Company (“PG&E”) is the natural gas utility 12 company in Northern and Central California. (Id.) Twenty or so CTAs, including Vista, provide 13 gas to residential users in PG&E’s service areas. (Id.) 14 On March 19, 2019, Plaintiff enrolled in Vista’s “Unlimiday” program (the “Program”) 15 offering unlimited gas usage for 99 cents per day. (Id.) To enroll, Plaintiff visited a secure 16 webpage on which she clicked several boxes, including a box authorizing Vista to obtain natural 17 gas on her behalf under the Core Gas Aggregation Service. (Id.) Plaintiff signed her name on the 18 screen stating that she confirmed authorization to begin service, and then clicked “submit 19 enrollment.” (Id.) That same day, Plaintiff received a link allowing her to review her completed 20 Letter of Authorization (“LOA”). (Id.) 21 On March 21, 2018, Vista mailed Plaintiff a welcome letter to the billing address on file 22 with PG&E and enclosed its Standard Terms and Conditions of Service (“T&Cs”). (Id.) The 23 T&Cs included a mandatory arbitration clause (the “Arbitration Agreement”). (Id.) The T&Cs 24 also included a provision that stated any and all claims must be arbitrated on an individual basis 25 (the “Class Action Waiver”). (ECF No. 35 at 3.) Plaintiff denies receiving these documents. 26 (ECF No. 20 at 11.) 27 28 Plaintiff initiated this purported class action in Sacramento County Superior Court on March 18, 2020, and filed a first amended complaint (“FAC”) on June 30, 2020 asserting fifteen 2 1 causes of action. (ECF No. 1.) Vista and Irish Marketing removed the case to this Court on 2 September 28, 2020. (Id.) In the instant motion to compel arbitration, Vista and Irish Marketing 3 argue the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., governs the Arbitration 4 Agreement. 5 II. STANDARD OF LAW 6 In deciding whether to compel arbitration, a district court typically determines two 7 gateway issues: (1) whether a valid agreement to arbitrate exists; and (2) if it does, whether the 8 agreement encompasses the dispute at issue. Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 9 F.3d 1010, 1012 (9th Cir. 2004). “To evaluate the validity of an arbitration agreement, federal 10 courts ‘should apply ordinary state-law principles that govern the formation of contracts.’” Ingle 11 v. Circuit City Stores, Inc., 328 F.3d 1165, 1170 (9th Cir. 2003) (citing First Options of Chicago, 12 Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). If the court is “satisfied that the making of the 13 arbitration agreement or the failure to comply with the agreement is not in issue, the court shall 14 make an order directing the parties to proceed to arbitration in accordance with the terms of the 15 agreement.” 9 U.S.C. § 4. “[A]ny doubts concerning the scope of arbitrable issues should be 16 resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 17 U.S. 1, 24–25 (1983). If a court “determines that an arbitration clause is enforceable, it has the 18 discretion to either stay the case pending arbitration, or to dismiss the case if all of the alleged 19 claims are subject to arbitration.” Hoekman v. Tamko Bldg. Prod., Inc., No. 2:14-cv-01581-TLN- 20 KJN, 2015 WL 9591471, at *2 (E.D. Cal. Aug. 26, 2015) (citation omitted). ANALYSIS1 21 III. 22 Defendants argue: (1) the Arbitration Agreement is valid and enforceable; (2) the 23 Arbitration Agreement is not unconscionable; (3) as a result of the Class Action Waiver, Plaintiff 24 must arbitrate her claims individually; and (4) the Court should stay, or alternatively dismiss, this 25 action. (ECF No. 17.) The Court will address these arguments in turn. 26 27 28 1 Plaintiff requests judicial notice of various documents. (ECF No. 21.) The Court has reviewed Plaintiff’s request as well as the attached documents. Because the Court need not rely on these documents to come to its decision, it declines to address Plaintiff’s request. 3 1 2 A. Arbitration Agreement In determining whether to compel arbitration under the FAA, the Court must engage a 3 two-step inquiry. First, the Court must determine whether a valid agreement to arbitrate exists. 4 Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). Second, if it 5 does, the Court then must look to see if the agreement encompasses the dispute at issue. Id. If 6 the answer to both questions is “yes,” then the Court must enforce the arbitration agreement. Id. 7 8 9 i. Valid Agreement Defendants argue a valid agreement exists because Plaintiff received the Arbitration Agreement and consented to the Arbitration Agreement by continuing service. (ECF No. 17 at 10 16.) Plaintiff argues a valid agreement does not exist because: (1) the parties did not enter into a 11 contract because the LOA was not a contract and the agreement as a whole was fraudulently 12 induced; (2) she denies receiving the Arbitration Agreement in the mail; and (3) there was no 13 meeting of the minds as to the Arbitration Agreement. (ECF No. 20 at 11.) 14 a. The LOA and Fraudulent Inducement 15 Plaintiff argues the only document she signed was the LOA, which was not a contract. 16 (ECF No. 20 at 10.) However, Plaintiff concedes that she entered into an oral contract with 17 Defendants. (Id. at 8; ECF No. 1-1 ¶¶ 129–39 (bringing claims against Defendants for breach of 18 oral contract).) Plaintiff appears to argue that the oral contract in its entirety is not valid because 19 it was fraudulently induced. However, this question must be decided by an arbitrator. See 20 Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999) (finding questions of whether 21 fraud in the inducement of the agreement as a whole were questions for the arbitrator); Santana 22 Row Hotel Partners, LP v. Zurich Am. Ins. Co., No. C 05-00198 JW, 2007 WL 914464, at *2 23 (N.D. Cal. Mar. 20, 2007) (determining that a fraudulent inducement claim that runs to the entire 24 contract, and not specifically the arbitration provision, must be decided by the arbitrator). 25 Accordingly, this argument is not a basis upon which to deny Defendants’ motion to compel 26 arbitration. 27 28 b. Mailbox Rule Plaintiff argues she did not receive the Arbitration Agreement, and thus there could be no 4 1 agreement. Whether the parties entered into a valid and enforceable arbitration agreement is 2 determined by California contract law. See Circuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1108 3 (9th Cir. 2002). Under California law, a valid contract exists only if both parties consent to the 4 contract. United States ex rel. Oliver v. Parsons Co., 195 F.3d 457, 462 (9th Cir. 1999). The 5 common law mailbox rule creates a presumption of mail receipt unless the intended recipient can 6 rebut the presumption by actual, credible evidence of non-receipt, which requires more than a 7 bare statement of denial. See Schikore v. BankAmerica Sup. Ret. Plan, 269 F.3d 956, 961 (9th 8 Cir. 2001) (noting that the mailbox rule is intended to avoid “swearing contests” between parties 9 on the question of receipt by mail); see also James v. Comcast Corp., No. 16-CV-02218(EMC), 10 2016 WL 4269898, at *2 (N.D. Cal. Aug. 15, 2016) (holding that the mailbox rule renders bare 11 denial of receipt insufficient to prove non-receipt of an arbitration agreement); but see Chavez v. 12 Bank of Am., No. C-10-653(JCS), 2011 WL 4712204, at *9 (N.D. Cal. Oct. 7, 2011) (holding that 13 denial of receipt of an arbitration agreement in addition to evidence of an incorrect mailing 14 address is, “although a close question,” sufficient to rebut the mailbox rule presumption of 15 receipt). 16 In the instant case, Defendants provide a declaration by Boyd Eriksen, the Vice President 17 of Regulatory Affairs at Vista, to prove Vista mailed the T&Cs and thus the Arbitration 18 Agreement to Plaintiff. (See ECF No. 17-2.) Eriksen states that Plaintiff visited a secure website 19 and authorized Vista to obtain gas on her behalf under PG&E’s tariffs for the Core Gas 20 Aggregation Service. (Id. at ¶ 10.) She proceeded to sign her name on the screen stating she 21 confirmed authorization to begin service and clicked “submit enrollment.” (Id.) Defendants 22 attach Plaintiff’s enrollment form as evidence. (See id. at 6.) According to Erikson, on March 23 21, 2018, Vista mailed a welcome letter to Plaintiff at the billing address on file with PG&E and 24 enclosed its standard T&Cs which included the Arbitration Agreement and Class Action Waiver. 25 (Id. at ¶¶ 12, 13.) Defendants include as exhibits the address on file as well as the T&Cs. (Id. at 26 8–15.) Erikson states that a third-party service prints, processes, and mails all of Vista’s welcome 27 letters by using a standard mail-merge format. (Id. at ¶ 15.) Moreover, he states that the T&Cs 28 are available on Vista’s website. (Id. at ¶ 16.) 5 1 Plaintiff objects to Defendants’ inclusion of Eriksen’s declaration pursuant to Federal 2 Rules of Evidence 602, 701, and 801 et seq., stating that “he does not have personal knowledge of 3 this purported mailing by the unnamed third party. Defendants failed to submit any documentary 4 evidence or even a declaration from the third-party mailer.” (ECF No. 26 at 2.) 5 Courts within the Ninth Circuit have found similar evidentiary support to a mailing 6 sufficient under the mailbox rule to create a presumption of mail receipt. See, e.g., Wright v. 7 Sirius XM Radio Inc., No. SACV-15-01688-JVS (JCGx), 2017 WL 4676580, at *2 (C.D. Cal. 8 Jun. 1, 2017) (overruling plaintiff’s objections to vice president of company’s declaration finding 9 declarant had sufficient knowledge to testify to third-party vendor communications); Derderian v. 10 Sw. & Pac Specialty Fin., Inc., No. 14-cv-412-L KSC, 2014 WL 6980525, at *4, *6 (S.D. Cal. 11 Dec. 8, 2014) (finding sufficient evidence of “its business practice to engage third-parties to 12 print” absent declaration from a third-party mailer) aff’d, 673 F. App’x 736 (9th Cir. 2016). 13 Similar to the declarant in Wright, Erikson is the Vice President of Regulatory Affairs, 14 and states that in his role he has “personal knowledge” of the third-party mailing practices. (ECF 15 No. 17-2 at 2.) Accordingly, the Court overrules Plaintiff’s objections. The Court finds 16 Defendants have created a presumption of mail receipt which Plaintiff has failed to rebut. 17 18 c. Meeting of the Minds Plaintiff argues that because Vista allegedly mailed the Welcome Letter and T&Cs to 19 Plaintiff two days after enrolling in the Vista Program, they attempted to change the contract after 20 its formation, and thus there was no “meeting of the minds” and a valid contract does not exist. 21 (ECF No. 20 at 7.) Defendants argue that courts have found such provisions enforceable and 22 Plaintiff assented to arbitration by continuing the service. (ECF No. 35 at 5.) 23 The Ninth Circuit has found that receiving an agreement and continuing service is 24 sufficient to show assent to the agreement. See Murphy v. DirecTV, Inc., 724 F.3d 1218, 1225 n.4 25 (9th Cir. 2013) ([T]he district court’s finding that [p]laintiffs received the Consumer Agreement 26 and continued to accept DirecTV's services is not clearly erroneous and its conclusion that these 27 actions bound Plaintiffs to the terms of the contract is correct.”). Here, Plaintiff was able to 28 terminate her contract at any time without paying an early termination fee or penalty. (ECF No. 6 1 17-2 ¶¶ 12, 17–18.) Plaintiff, however, continued her service for approximately five months after 2 services commenced. (ECF No. 35 at 6.) Plaintiff’s failure to cancel her contract demonstrates 3 that Plaintiff assented to the agreement. Accordingly, the Court finds a valid agreement to 4 arbitrate exists. 5 6 ii. Agreement Encompasses Plaintiff’s Claims Once the moving party has shown the existence of a valid agreement to arbitrate, the party 7 resisting arbitration bears the burden of proving the dispute does not fall within the scope of the 8 arbitration provision. Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 91 (2000). 9 Arbitration provisions are construed broadly, and any doubts are resolved in favor of arbitration. 10 Moses H. Cone Mem’l Hosp., 460 U.S. at 24–25. “[T]o require arbitration [an aggrieved party’s] 11 factual allegations need only touch matters covered by the contract containing the arbitration 12 clause. . . .” Simula, Inc., 175 F.3d at 721 (internal quotation marks omitted). 13 Defendants argue that the Arbitration Agreement on its face encompasses Plaintiff’s 14 claims. (ECF No. 17 at 19.) The Arbitration Agreement purports to cover “[a]ny claim, dispute 15 or controversy . . . arising out of relating to this Agreement or the relationships among the parties 16 hereto[.]” (ECF No. 17-2 at 13.) To the extent Plaintiff argues that the Arbitration Agreement 17 does not cover her claims because she seeks public injunctive relief under various California 18 laws, the Court finds she does not actually seek injunctive relief, but rather compensation for the 19 alleged injury for herself and those allegedly similarly situated. (See ECF No. 1-1 ¶¶ 306, 320– 20 22, 326, 330, 334.) These types of damages “do[] not constitute public injunctive relief.” McGill 21 v. Citibank, N.A., 2 Cal. 5th 949, 955, 957 n.1 (2017) (“[C]ompensatory, monetary and punitive 22 damages, and injunctive relief in the form of restitution . . . do not constitute public injunctive 23 relief.”). Plaintiff has not adequately provided any other argument for why the Arbitration 24 Agreement does not encompass Plaintiff’s claims, and accordingly, the Court finds that it does. 25 B. Unconscionability 26 California courts apply a “sliding scale” analysis in making determinations of 27 unconscionability: “the more substantively oppressive the contract term, the less evidence of 28 procedural unconscionability is required to come to the conclusion that the term is unenforceable 7 1 and vice versa.” Kilgore v. Keybank, Nat’l Ass’n, 673 F.3d 947, 963 (9th Cir. 2012) (quoting 2 Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (2000)). “No matter 3 how heavily one side of the scale tips, however, both procedural and substantive 4 unconscionability are required for a court to hold an arbitration agreement unenforceable.” 5 Kilgore, 673 F.3d at 963 (quoting Armendariz, 24 Cal.4th at 89). The Court must apply this 6 balancing test to determine if the arbitration agreement is unenforceable. As the party opposing 7 arbitration, Plaintiff bears the burden of proving unconscionability by a preponderance of the 8 evidence. Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 972 (1997). 9 Plaintiff argues that there are four bases for finding the Welcome Letter and T&Cs, and 10 subsequently the Arbitration Agreement, unconscionable: (1) the T&Cs do not state the cost of 11 gas and purport to allow Vista to change the price in violation of the California Public Utilities 12 Code; (2) Vista claims that customers must complain to the CPUC before filing a civil complaint; 13 (3) the T&Cs unlawfully state a term of 24 months; and (4) Vista wrongfully attempts to limit its 14 liability to actual damages. (ECF No. 20.) The Court will address each of Plaintiff’s arguments 15 in turn. 16 i. T&Cs Plaintiff argues that the T&Cs violate Cal. Pub. Util. Code § 986(a) — which requires 17 18 Vista to provide customers with a written notice of the service clearly describing the price. (ECF 19 No. 20 at 12–13.).2 “[C]ontracts that are contrary to express statutes or to the policy of express 20 statutes . . . are illegal contracts . . . Any such illegality voids the entire contract.” Green v. Mt. 21 Diablo Hopsital District, 207 Cal. App. 3d 63, 73 (1989) (citing Civ. Code §§ 1667(1)–(2)). 22 Moreover, “[I]f an otherwise enforceable arbitration agreement is contained in an illegal contract, 23 a party may avoid arbitration altogether.” Moncharsh v. Heily & Blasé, 3 Cal. 4th 1, 29 (1992) Cal. Pub. Util. Code § 986(a) states, in relevant part, that a “core transport agent offering 24 25 26 27 28 Defendant requests the Court take judicial notice of the “Decision on Phase Two Issues Regarding Core Transport Agents” before the Public Utilities Commission of the State of California (“CPUC Decision of Phase Two”). (ECF No. 35 at 9.) The Court may take judicial notice of documents in a public record. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). The Court accordingly takes judicial notice of this document. 8 2 1 gas service to core gas customers shall, prior to the commencement of service, provide the 2 potential customer with a written notice of the service describing the price, terms, and conditions 3 of the service.” It further requires the T&Cs to include “[t]the price of gas expressed in a format 4 that makes it possible for core gas customers to compare and select among similar products and 5 services on a standard basis,” and that the total price of gas should be disclosed on a “cents-per 6 therm basis.” Id. at § 986(a)(1)(A). 7 Plaintiff states that the T&Cs listed the price for natural gas at $0.6019 per therm, even 8 though Vista offered Plaintiff a fixed price for unlimited usage. (ECF No. 20 at 12–13.) This, 9 Plaintiff maintains, violated the Public Utilities Code, and thus, makes the T&Cs void in their 10 entirety. (Id.) The T&Cs, however, state that the estimated costs are “$0.6019 cents per therm” 11 with the “[a]verage price based on usage level of 50 therms per month.” (ECF No. 17-2 at 11.) 12 Importantly, the section of the T&Cs listing the price at $0.6019 per therm has an asterisk that 13 points to a section in the T&Cs that states that “if your price plan includes fixed charges, your 14 average price may vary based on your usage level.” (Id.) In the same enumerated section of the 15 T&Cs that includes the reference to “$0.6019 cents per therm,” the T&Cs also state that 16 “recurring charges are for the following kinds of charges: $0.99/Day for all usage.” (Id.) The 17 T&Cs have an entire heading titled “Your Price of Gas” which outlined the total estimated costs 18 based on monthly usage. The T&Cs further include a table with what Plaintiff’s costs would be 19 dependent on her usage. Plaintiff’s opposition fails to explain how the T&Cs do not comply with the California 20 21 Public Utilities Code’s requirement for “estimates of the total monthly bill for the gas service at 22 varying levels of consumption.” Cal. Pub. Util. Code § 986(a)(1)(A). Moreover, Plaintiff fails to 23 explain how the T&Cs’ statement that the “average price may vary” is unlawful under the statute. 24 In reviewing the T&Cs, the Court finds that they provide customers with “[a] clear description of 25 the price . . . including . . . the price of gas expressed in a format that makes it possible for core 26 gas customers to compare and select among similar products and services. . . .” Id. at § 27 986(a)(1)(A) 28 /// 9 1 2 Any argument by Plaintiff that Vista breached the agreement by failing to charge Plaintiff the amount shown is a claim for the arbitrator. (ECF No. 20 at 13.) 3 ii. 4 Pre-Suit Agreement Requirement Plaintiff states that in violation of Cal. Pub. Util. Code § 983(b), Defendants require an 5 aggrieved customer to first resolve an issue with the CPUC prior to filing a civil complaint. (ECF 6 No. 20 at 14–15.) Defendants state that this argument is unpersuasive as the statute does not 7 directly state that a CTA and its customers cannot agree to arbitrate. (ECF No. 35 at 9.) Section 983(b) states, in relevant part, that “core gas customers shall have the option to 8 9 proceed with a complaint against a core transport agent either through an action filed in the 10 judicial court system or through a complaint filed with the commission.” The direct language of 11 the statute does not, however, bar arbitration agreements between CTAs and their customers. 12 Moreover, the Court is unaware of — and the parties do not point to any — decisions in this 13 Circuit finding § 983(b) limits the ability of parties to arbitrate claims. 14 Further, in AT&T Mobility v. Concepcion, 523 U.S. 333, 341, 343 (2011), the Supreme 15 Court outlined that “[w]hen state law prohibits outright arbitration of a particular type of claim” 16 or “stand[s] as an obstacle to the accomplishment” of the objective of the FAA, “the analysis is 17 straightforward: The conflicting rule is displaced by the FAA.” Even if the Court were to accept 18 Plaintiff’s reading of the statute, any prohibition to arbitration within the Code is preempted by 19 the FAA. Plaintiff has not made a showing of unconscionability as to this argument. 20 iii. 24-Month Term Plaintiff argues that the T&Cs include a provision that required Vista to be Plaintiff’s “gas 21 22 provider for a period of 24 months.” (ECF No. 20 at 15.) Plaintiff states that this is 23 unconscionable because a binding tariff on Vista incorporated into the Core Gas Aggregation 24 Services Agreement states that any initial term length will be 12 months. (Id.) Defendants state 25 that a 24-month term cannot be unconscionable since the LOA and Welcome Letter stated that the 26 term was for 12 months, Plaintiff could cancel without penalty, and she did cancel without 27 penalty. (ECF No. 35 at 10.) 28 /// 10 1 Here, Plaintiff received a Welcome Letter stating her term to be 12 months. (ECF No. 17- 2 2 at 8.) The T&Cs state Plaintiff agreed to allow Vista “to be [her] gas provider for a period of 24 3 months,” but further states that should she decide to cancel the agreement, she would “have to 4 pay an early termination fee of . . . [$]0.00.” (Id. at 10.) It cannot be that Plaintiff was forced 5 into a 24-month term when she had the opportunity to cancel her contract without penalty. 6 Plaintiff has failed to show that this provision is unconscionable. 7 8 9 iv. Limitation of Liability Plaintiff argues that Vista wrongfully attempts to limit its liability in the T&Cs by stating that they are only liable for actual damages. (ECF No. 20 at 16.) Defendants contend this 10 argument must fail, as the primary relief sought in the FAC is actual damages (a refund), which 11 does not fall within the limitation of liability clause. (ECF No. 35 at 10.) Further, Defendants 12 state an offending limitation of liability provision does not render an entire agreement or 13 arbitration provision unconscionable. (Id.) 14 In light of the fact that Plaintiff only asserts a claim for actual damages, she has not 15 explained why she has raised this argument. Moreover, courts within this Circuit have held that 16 offending limitations of liability do not render an entire arbitration provision void or the 17 agreement unconscionable. See, e.g., McKee v. Audible, Inc., No. CV 17-1941-GW(EX), 2017 18 WL 4685039, at *14 (C.D. Cal. Jul. 17, 2017) (“[A]part from the offending limitation of liability 19 provision, the Amazon COU and Audible COU are not unconscionable and are enforceable.”). If 20 the liability provision is in fact offending, the Court can “sever that provision without disturbing 21 the rest of the agreement.” Id. at 13. 22 23 24 25 Accordingly, Plaintiff has not met the burden of proving unconscionability by a preponderance of the evidence. C. Class Action Waiver Defendants argue that the T&Cs contain an unambiguous class action waiver clause 26 stating “[a]ny claim must be brought in the parties’ individual capacity, and not as a plaintiff or 27 member in any purported class, collective, representative multiple plaintiff, or similar 28 proceeding.” (ECF No. 17-1 at 13.) Plaintiff states she never agreed to the Class Action Waiver 11 1 and thus this waiver fails for the same reasons the Arbitration Agreement fails. (ECF No. 20 at 2 25.) As the Court finds that the Arbitration Agreement is valid and enforceable, Plaintiff’s 3 arguments here are unpersuasive. The Class Action Waiver is therefore similarly valid and 4 enforceable. 5 D. Stay 6 Defendants request the Court “stay proceedings for claims and issues ‘referable to 7 arbitration’ pending resolution of the arbitration.” (ECF No. 17-1 at 15 (quoting Blair v. Rent-A- 8 Ctr., Inc., 928 F.3d 891, 832 (9th Cir. 2019).) Plaintiff’s sole argument against a stay is that 9 arbitration is not appropriate. The Court disagrees with Plaintiff and will stay the case pending 10 resolution of arbitration. 11 IV. CONCLUSION 12 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Compel Arbitration 13 (ECF No. 17) and STAYS the case pending completion of arbitration of Plaintiff’s individual 14 claims. The parties shall notify the Court within thirty (30) days of completing arbitration.3 The 15 Court also DENIES as moot the Motion to Dismiss by Vista (ECF No. 19) and the Motion to 16 Dismiss by Defendant Whale Family Investments LP (ECF No. 18). 17 18 IT IS SO ORDERED. DATED: January 6, 2022 19 20 21 Troy L. Nunley United States District Judge 22 23 24 25 26 27 28 Pursuant to California law, the non-signatory agents of Defendants are compelled to arbitrate as well. See, e.g., Thomas v. Westlake, 204 Cal. App. 4th 605, 614–15 (2012) (“[A]llegations of an agency relationship among defendants is sufficient to allow the alleged agents to invoke the benefit of an arbitration agreement executed by their principal even though the agents are not parties to the agreement.”). Accordingly, the Arbitration Agreement applies to Defendants ReThink Direct, McGuffey, and Smith as alleged agents of Vista. 12 3

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