                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 26 2021
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GERRIE DEKKER; et al.,                          No.    20-16584

                Plaintiffs-Appellees,           D.C. No. 3:19-cv-07918-WHA

 v.
                                                MEMORANDUM*
VIVINT SOLAR, INC.; et al.,

                Defendants-Appellants.

                   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.
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.

                                           2
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


                                           3
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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