Dekker et al v. Vivint Solar, Inc. et al

Filing 95

ORDER DENYING 87 STAY AND AMENDING CASE MANAGEMENT SCHEDULING ORDER. SIGNED BY JUDGE ALSUP. (whalc2, COURT STAFF) (Filed on 9/15/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GERRIE DEKKER, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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No. C 19-07918 WHA

v.
VIVINT SOLAR, INC., et al.,
Defendants.

ORDER DENYING STAY AND
AMENDING CASE MANAGEMENT
SCHEDULING ORDER

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Defendants move to further delay the portion of this case which has only come back
before the undersigned due to defendants’ own delay. The motion to stay is DENIED.
A prior order stated the facts herein (Dkt. No. 47). In brief, plaintiffs sued Vivint for

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unfair business practices relating to Vivint’s installation of solar panel systems on consumers’

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homes. A March 24 order granted Vivint’s motion to compel most plaintiffs to arbitrate,

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denied the motion to compel plaintiff Bautista to arbitrate because the language barrier

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prevented formation, and denied Vivint’s separate motion to dismiss plaintiff Dekker’s

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complaint. After the relevant plaintiffs filed arbitration complaints, Vivint failed to timely pay

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its share of the filing fees. So an August 14 order held Vivint in default and brought plaintiffs

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Barajas, Rogers, Hulsey, Piini, and Hilliard back into this Court. Vivint appealed that order,

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and now moves to stay the proceedings against those plaintiffs.

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A stay issues at the Court’s discretion and not by right, even where irreparable injury

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looms. We consider: (1) whether the stay applicant is likely to succeed on the merits or has at

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least raised substantial questions; (2) whether the applicant will be irreparably injured absent a

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stay; (3) whether issuance of the stay will substantially injure the opposing parties; and (4)

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where the public interest lies. Our court of appeals employs a sliding scale; a stronger showing

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on one element may offset a weaker showing on another. Nken v. Holder, 556 U.S. 418, 426

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(2009); Leiva-Perez v. Holder, 640 F.3d 962, 964, 967–68 (9th Cir. 2011).

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The first and fourth factors balance. Plaintiffs concede that Vivint’s appeal of the order

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holding it in default of arbitration raises serious legal questions. Nevertheless, the public

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interest does not favor a stay here. Though the federal policy in favor of judicial efficiency

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favors arbitration, public policy also favors parties performing their contractual obligations, or

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more specifically, it favors arbitration clause drafters timely paying their arbitration filing fees.

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See, e.g., Cal. Code of Civ. Proc. § 1281.97.
So the propriety of a stay turns on the balance of the equities. Vivint argues that if this

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case proceeds to trial in February 2021 as scheduled, and then it wins on appeal, the time and

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United States District Court
Northern District of California

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resources spent litigating here will have been wasted. Plaintiffs argue that the financial

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penalties Vivint hangs over their heads threaten their homes and livelihoods. COVID-19

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displaces both of these arguments. This case cannot proceed to trial for the foreseeable future.

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There will be no use in hurrying toward expert reports and dispositive motions, only to sit back

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and wait for a trial date. Thus the harm Vivint fears will not come to pass, however plaintiffs,

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for better or worse, must wait for relief.

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In the interim, however, this case will not simply pause. Though the scope of discovery

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in this forum may exceed that in arbitration, any discovery taken here can easily be used in

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arbitration. This order commits the pace of this discovery to the parties’ good faith

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negotiation.

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Vivint’s motion to stay is DENIED. For now, however, all remaining deadlines (including

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the September 24 hearing) are VACATED. A further case management conference is SET FOR

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APRIL 22, 2021 AT 11:00 A.M. Vivint may renew its motion to stay then.

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IT IS SO ORDERED.

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Dated: September 15, 2020.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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