; . '.

,.

1 II KEMNITZER, BARRON & KRIEG, LLP BRYAN KEMNITZER Bar No. 066401

2 II ELLIOT CONN · Bar No. 279920 445 Bush St., 61h Floor! ;.

3 II San Francisco, CA 94108 Telephone: ( 415) 632-1900

4 II Facsimile: (415) 632-1901

5 II Attorneys for Plaintiff FLORENCE FISHER

6

7

8

:i, '°'·1,/1 ';·· '\ . ; ./ t .,

I 1111111111111111 lllll lllll lllll 111111111111111111 21019188

FILED ALAMEDA COUNTY

AUG O 6 2018

IN THE SUPERIOR COURT OF THE STA TE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA 9

10

11 II FLORENCE FISHER,

12

13

Plaintiff,

vs.

14 II VIVINT SOLAR, INC.; VIVINT SOLAR DEVELOPER, LLC; and DOES 1 through 20,

15 II inclusive,

16

17

18

19

20

21

22

23

24

25

Defendants.

Case No. R G 18915 5 3 5t1 COMPLAINT FOR DAMAGES, RESCISSION, AND INJUNCTIVE RELIEF FOR VIOLATIONS OF:

I. THE HOME SOLICITATION SALES ACT (CIVIL CODE §1689.5, ET SEQ.); THE CONSUMERS LEGAL REMEDIES ACT, (CIVIL CODE §1750, ET SEQ.); TORT-IN-SE; THE ELDER Al3USE AND DEPENDANT ADULTS CIVIL PROTECTION ACT, (WELFARE & INSTITUTIONS CODE §15610.07 ET SEQ.); and THE UNFAIR COMPETITION LAW (BUSINESS & PROFESSIONS CODE §17200, ET SEQ.)

II.

III. IV.

V.

Unlimited Civil Case

/ JURY TRIAL DEMANDED -------------

1. Plaintiff FLORENCE FISHER ("Plaintiff') brings this action for damages,

26 II rescission, and injunctive relief as an individual against Defendants VIVINT SOLAR, INC.,

27 II VIVINT SOLAR DEVELOPER, LLC (collectively "VIVINT"); and DOES 1 through 20, as

28 II follows:

C I int for Damages, Re!cission, and Injunctive Rclihy FAX ompai I, [~ D . . ;;,1·

2 2.

... F '\: •. ,•;J •'

INTRODUCTION

On April 9, 2016, VIVINT Regional Vice President of Sales West, Ty Williams 1 i

3 11 lied to then 86-year-old Florence Fisher about the installation of VIVINT solar panels at her

4 II home in Calimesa, California., Williams told Ms. Fisher:

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

3.

a)

b)

c)

d)

e)

that the panels would not cost her anything;

that she would not be responsible for any payments; ~~ \: \ ,,!•'

that her electri'citf%ill would go down;

that there was no contract; and

that he needed a voided check from her so he could take one dollar out of

her bank account to confirm that it was active.

Instead, VIVINT surreptitiously did the following:

a) Forged Ms. Fisher's signature on a 20 Year Solar Power Purchase

Agreement;

Added Ms. Fisher's daughter's name to the 20 Year Agreement and forged

the daughter'ssigriature without the daughter's knowledge or consent;

Failed to send either Fisher or the daughter a copy of the 20 Year

Agreement;

Used the voided check to begin to automatically withdraw funds from !

b)

c)

d)

e)

Fisher's bank account; and

Has charged Fishel-more for electricity than she would have otherwise

21 II paid.

22 II 4. VIVINT's conduct, as to Ms. Fisher, violates the Home Solicitation Sales Act, ~ ::· : .. ~ ·,' ; .

23 II California Civil Code §1689.5 et seJiJhJ0consumers Legal Remedies Act, Civil Code §1750, et

24 II seq., the Elder Abuse and Dependent Adtllts Civil Protection Act, Welfare & Institutions Code

25 II § 15610.07, et seq., the Unfair Competition Law, California Business & Professions Code

26 II § 17200, et seq., and other laws. VIVINT has been placed on notice of this illegal activity

27 1 In addition to his role as a salesperson and regional vice president of sales, Mr. Tyler also biogs

28 II (http://www.tribewestcoast.comL), videocasts (https://vimeo.com/user460389I ), and podcasts (https://itunes.apple.com/us/podcast/eagerly-unsatisfied/id l 3 l3084457?mt=2) for VI VINT.

2 Complaint for Damages and Injunctive Relief . ' \,

1 II repeatedly, but has refused to discontinuethe practice. Plaintiff brings this action to challenge

2 II the unlawful, unfair, and deceptive practices of Defendant VIVINT and DOES 1 through 20,

3 II inclusive, arising out of this transaction.

4 II PARTIES

5 II 5. Plaintiff FLORENCE FISHER is an individual over the age of 18 years. At all .!

6 II times relevant herein, Plaintiff FLORENCE FISHER was, and currently is, a resident of the Statd

7

8

of California.

6. ' [,;i

Defendant VIVINT SOLAR, INC. is, and at all times relevant herein was, a '·'

9 II Delaware corporation, with its principal place of business in Lehi, Utah, that at all times relevant I •

i 10 II herein, was licensed to do business and was conducting business in Alameda County.

11 7. F. ·11

Defendant VIVINT SOLAR DEVELOPER, LLC, is, and at all times relevant

12 II herein was, a Delaware limited liability company with its principal place of business in Lehi, ,. 13 II Utah, that at all times relevant herein, was licensed to do business and was conducting business

15

16 8. Plaintiff does not know the true names and capacities, whether corporate,

; t') ~.:'. ~ ~t ~ "'.b 'noE DEFENDANTS

14 II in Alameda County.

17 II partnership, associate, individual or otherwise, of Defendants sued herein as DOES 1 through 20,

18 II inclusive, pursuant to §4 74 of the California Code of Civil Procedure. Nonetheless, Plaintiff

19 II alleges that Defendants DOES 1 through 20, inclusive, are in some manner responsible for the

20 II acts, occurrences and transactions set forth herein and are legally liable to Plaintiff. Plaintiff will

21 II seek leave to amend this complaint to set~forth the true names and capacities of said fictitiously- ! \

22 II named Defendants, together with. apJ,rdph~te charging allegations, when ascertained. ;" ··'

23 II AGENCY AND ALTER EGO

24 9. ::::

• rt At all times mentioned herein each Defendant, whether actually or fictitiously

25 II named herein, was the principal, agent (actual or ostensible), or employee of each other i· I

26 II Defendant and in acting as such principal.or within the course and scope of such employment or t; l

27 II agency, took some part in the acts and omissions hereinafter set forth, by reason of which each l

28 II Defendant is liable to Plaintiff for the relief prayed for herein.

3 Complaint for Damages and Injunctive Relief

'· _ l ,.~ ·. .

J,:

r .. _) i'l

; :

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

JURISDICTION AND VENUE

10. Venue is proper in Alameda County under Civil Code§ 1780(d) because VIVINT 'i \,

SOLAR, INC. and VIVINT SOLAR DEVELOPER, LLC conduct business in Alameda County.

In addition, VIVINT SOLAR, INC. and VIVINT SOLAR DEVELOPER, LLC have not

designated with the California Sepre~a.F~ .?f State a principal place of business within the State of

California pursuant to Corporations Code1.:§2105(a)(3). Accordingly, VIVINT SOLAR, INC. . ~;.

and VIVINT SOLAR DEVELOPER, LLC can be sued in any county in the State of California,

including Alameda County.

11. This Court has jurisdiction over Plaintiffs claims because Plaintiff is a resident o

California and because VIVINT SOLAR, INC. and VIVINT SOLAR DEVELOPER, LLC are

qualified to do business in California and regularly conduct business in California. Furthermore,

the acts and omissions complained o~ occurred at locations in California. i•

OPERATIVE FACTS ; n.

The A:Bril 9, 2016 Forgery ·•··

12. Florence Fisher, then 86 Yfars old and hard of hearing, was interested in having

16 11 solar panels installed on her property. She had read a brochure from VIVINT that she i;

17 II understood to mean that if she had v1vrnT panels installed on her home, she would not have to ,. •..

18 II put any money down, and that her electri~jty bill would go down. As a result, she contacted . I: .

19 II VIVINT. .

20 \.

On or about April 9, 2016, VIVINT Regional Vice President of Sales West, Tyler 13.

21 II Williams came to Ms. Fisher's house m.1G~limesa, California (the "Home") and met with Ms.

22 II Fisher. Ms. Fisher's daughter, non-p'art/.Pamela Morken, was not involved in the transaction. "

23 II She does not live with her mother, nor do~s she have any property interest in the Home. In fact,

24 11 at the time that Vice-President Williams came to the Home, Ms. Morken was nearly sixty miles

25 II away at work.

26 14. Vice-President Williams told Ms. Fisher that the panels would be free and that heti

27 II tenant would be responsible for any payments to VIVINT. Based on these representations, Ms.

28 I r ;' I

Fisher orally agreed to have the panels installed. Ms. Fisher was never provided with a contract -~ t;:: I ·r;-

(ompJaint'.for Damages and Injunctive Relief . ~A 4

'• ·, I,~),

' 'f

1

2

3

4

5

6

7

or given a contract to sign. At 86 years of age, she never would have agreed to a 20-year

agreement.

15. At some point during the visit, Vice-President Williams instructed Ms. Fisher to i · ,;I

sign an electronic pad as verificationithatl'Vice-President Williams had come to her Home. Ms. ,~ I t~, ,

Fisher did not sigh anything else and;wa{never told that she was signing a contract. She was . ~t .

never given a contract to review and was not provided with a signed contract. (

16. ·,. ' Unknown to Ms. Fisher (and certainly unknown to Pamela Morken, who was

8 II' sixty miles away at the time and does not;live in the Home), Mr. Williams and VIVINT ,;

9 II fraudulently signed up both Ms. Fisher and Ms. Morken for a 20 Year Residential Solar Power : ; ·r:

10 II Purchase Agreement (the "20 Year Agreement") by forging both of their signatures. (Exhibit

11 II A). VIVINT did not send either Fisher or Morken a copy of the "signed" 20 Year Agreement.

12 II The Unauthorized Withdrawals from Fisher's Account and the Increased Cost of

13

14

· : · ~ 1rr~r.~11 :· Electricity I

Within a few months, VIVINT installed the solar panels on the Home. Sometime 17.

15 II after that, Ms. Fisher noticed that money was being automatically withdrawn from her bank

16 II account. Fisher contacted her bank and had the bank put a stop payment on the withdrawals that

17 II she had never authorized.

18 18. Fisher then began to receive collection calls and emails from VIVINT. A

19 II VIVINT representative eventually told Fisher that she had signed a 20-year contract and that she . t •.

! ~ .;

20 II had to pay them. Scared, Fisher paid VIVINT approximately $400.00. After that, the automatic ' '::. ,: r. . 21 II withdrawals resumed. Fisher has requested that her tenant be able to pay VIVINT directly, but

). .

22 II VIVINT has told Fisher that because.the Home is in her name, Fisher has to pay.

23 In addition, the overall cost of electricity has increased substantially as compared 19.

24 II to the prior year's Edison bill as follows: !_,,

25 ll

26 ll

27 ll

i ,.

28 II //

5 Comp.taint ,ff' Damages and Injunctive Relief

,.

1

2

3

4

5

6

7

8

9

10

Month i Edison Bill Vivint Bill Difference 1. November $60.62 $61.83 $1.21

2015/2016 2. December I :$36.06 I $42.86 r $6.80

2015/2016 3. January $43.601 $41.91 I [$1.69]

2016/2017 ; ~:~;_~,' 4. February $37.85 I $44.17 I $6.32

2016/2017 ! 5. March $45.51 I $50.62 I $5.11

2016/2017 6. April I $21.86 I $92.72 I $70.86

2016/2017 7. May I $45.88 I $100.94 I $55.06

2016/2017

Discovea of the Fraud and Attem(!ts at Rescission

20. Upon being told that she had signed a "contract," and learning that her daughter's

11 11 name was also "signed," Ms. Fisher no longer wanted anything to do with VIVINT. In May V

12 II 2017, Fisher filed a complaint with the Better Business Bureau, requesting that VIVINT remove )<

13 II the solar panels.

14 21. VIVINT denied Fisher's request and responded to the Better Business Bureau in

15 June 2017 that "Vivint Solar at this time remains firm that cancellation is not approved."

16 22. To this day, the panels remain on the Home, Fisher continues to make payments '.:,

17 to VIVINT, and VIVINT considers both ·tisher and Morken liable on a 20 Year Agreement that

18 neither signed.

19

20

21

VIVINT'S PATTERN AND PRACTICE OF FORGED CONTRACTS AND

IMPERM'.fo.SIBLE CREDIT PULLS ~'

23. VIVINT, as a pattern arid practice, regularly forges consumer's signatures for .. ,

22 II Power Purchase Agreements.

23

24

25

26

27

28

24. Consumers across California and across the country have complained to VIVINT

that VIVINT and its agents have forged their signatures on agreements. Numerous lawsuits

across the country have been filed complaining of these practices.

Despite ample notice of this problem, VIVINT continues to allow its salespeople I ,,.- I

! , .. to routinely invade the privacy of consu1ers and forge contracts.

25.

26. Even after Plaintiff's com'~laints, VIVINT and its salespersons continue to prey

6 Complaint for Damages and Injunctive Relief

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

on California consumers, by forging contracts.

FIRST CAUSE OF ACTION (For Violation of the Home· Solicitation Sales Act, Civil Code §1689.5 et seq.) , (On Behalf df P!?iintiff Against All Defendants)

. ; ' 27. Plaintiff realleges and: inc~·rporates by reference as though fully set forth herein

\

each and every allegation contained ~n th7 paragraphs above. 28. The Home Solicitation Sales Act, California Civil Code §1689.5 et seq. was

enacted in 1971 to protect California consumers against the type of pressures that arise when a

salesperson appears at a buyer's home. Regardless of whether the buyer invites the seller to his/her home, serious pressure arises.froJ: the mere fact that the seller may be an intimidating

presence once inside the buyer's home. A reluctant buyer can easily walk away from a seller's

place of business, but he/she cannot walk away from his/her own home, and may find that the , . J'· ~.· t. r • l

only practical way of getting the sell~}To~~ave is to agree to buy what the seller is selling.

29. As a result, the Home1Soli~itation Sales Act broadly defines "home solicitation"

to mean "any contract, whether single or multiple, or any offer which is subject to approval, for

the sale, lease, or rental of goods or services or both, made at other than appropriate trade

premises in an amount of twenty-five dollars ($25) or more, including any interest or service

charges." Civil Code § 1689.5(a). The definition focuses not on who initiated the contact

between the buyer and the seller, but 10n. ihere the contract was made. "j L, 30. Because of these pres'Juret; the Home Solicitation Sales Act gives the consumer

the right to cancel a home solicitatioi c·oWlract until midnight of the third business day after the

day on which the buyer signs the agreement, Civil Code§ 1689.6(a)(l)_. In addition, per Civil I

Code §1689.7(a)(l), the entire agreementmust be in writing, signed by the consumer, and be in

the same language as principally used in the oral sales presentation. ,/

31. If a seller fails to comply \Vith these notice provisions, the buyer retains the right ' J,-1

I

to cancel the contract until the seller complies with the Home Solicitation Sales Act. Civil Code

§1689.7(c). The seller is not entitled to any compensation. Civil Code §§1689.11.

32. Defendants failed to c.omp!y with Civil Code § 1689.5, et seq. by failing to l'i'•! 'l' -: Vt , I

observe material requirements set fo~h 'tfi 'rein.

Complaint for Damages and Injunctive Relief

1 ' The 20 Year Residential S.olar Power Purchase Agreement was a "home 33.

2 II solicitation contract" as defined by Civil Code § l 689.5(a) in that it was purportedly entered into I • It \. 1Plj'l~··· .1•- ~ .

3 II at Plaintiffs Home rather than at "a1{rk'.?~1ate trade premises" as defined by Civil Code 'J

4 II § 1689.S(b) In addition, the sale of solar P,OWer, which is the subject of this action and the

5 II contract attached hereto to as Exhibit A, constitutes both "goods" as defined by Civil Code

6 II §1689.5(c) and "services" as defined by Civil Code §1689.5(d).

7

8

9

10

11

34. Defendants violated Civil Code § l 689.7(a)(l) by failing to enter into a written

contract with either Florence Fisher or Pamela Morken.

35. Defendants violated CivilCode §1689.7(a)(l) by failing to obtain Plaintiffs . - .-:::· .u .: .i:. l . $,,,

••• \ I ..:,,

signature on a written contract.

36. Defendants violated C!:_ivil{~ode §1687(f) by failing to provide a written copy of I ,•:.

12 11 the contract and attached notice of cancellation, at the time the contract was executed. ~ ,~·:

13

14

15

16

17

18

19

20

37. Because Defendants have failed to comply with Civil Code§ 1689.7, pursuant to

Civil Code §1689.7(g), Plaintiff hereby rescinds and cancel the 20 Year Agreement and demand

that VIVINT restore the Home to the co~pition that it was in prior to the installation of the solar

panels.

WHEREFORE, Plaintiff prays fof relief as set forth below.

SECOND CAUSE OF ACTION (For Violations 0

1

f the Consurji~11;s\fegal Remedies Act, Civil Code §1750, et seq.) (On Behalf of Pta;mtiff Against All Defendants)

38. Plaintiff realleges and··inc8rporates by reference as though fully set forth herein

21 11 each and every allegation contained in the paragraphs above.

22 39. The Consumers Legal Remedies Act, Civil Code §1750 et seq. ("CLRA") was

23 II designed and enacted to protect consumers from unfair and deceptive business practices. To this

24 II end, the CLRA sets forth a list of unfair and deceptive acts and practices in Civil Code§ 1770

25 II that are prohibited in any transaction intejided to result in the sale or lease of goods or services to ']·

26 II a consumer. .I it. : ,f.

27 '; . :{,,

At all relevant times, Plai66ff was a "consumer" within the meaning of the 40.

28 II CLRA, Civil Code § 1761 ( d), as an iridivf~ual who seeks or acquires goods or services for

8 Complaint for Damages and Injunctive Relief

personal, family, or household purposes.ssolar power are "goods" and "services" as defined by .,

2 II California Civil Code §§1761(a);(b).: The 20 Year Agreement constitutes a "transaction" as that -',, ~!Ji

3 II term is defined in California Civil Code §'176l(e). VIVINT SOLAR, INC. and VIVINT SOLAR :I

4 II DEVELOPER, LLC are companies and, ;·!ls such, are "persons" as that term is defined in

5 II California Civil Code § 1761 ( c ). The transaction from which this action arises involves the sale

6 II or lease of goods or services to consumers and is covered by the CLRA.

7 41. The acts and practices of Defendants violated the CLRA by engaging in the

8 II following unfair methods of competition arid unfair or deceptive practices undertaken by

9 II Defendants in a transaction intended to result and which resulted in the sale or lease of goods or

10 II services: 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(a) Ci vi I Code :Jf ~!( 14) - representing that a transaction confers or '. , :) i-.1

involves rights, remedies or obligations which it does not have or which are prohibited by law. Specifically, VIVINT Vice President Tyler Williams

represented to Ms. Fisher that she would not have to pay anything, that her tenant

would be liable for any payments, that there was no contract, that he needed a

voided check only to confirm that Fisher's bank account was active, and that .. ·.~, .

Fisher's electricity bili wolild go down, when in fact, VIVINT forged Fisher and ..

her daughter's signatures -~n a 20 Year Agreement that was not provided to either (· ~?

them, she has been required to make payments to VIVINT, VIVINT has :i \ .. +;

withdrawn monies frorn Fisher's bank account, her electricity bill has gone up,

and VIVINT maintains that the 20 Year Agreement is final and binding on both

Fisher and Morken;

(b) :1 ·,

Civil Code § l 770ca)(l 6) - Representing that the subject of a transaction

has been supplied in accordance with a previous representation when it has not.

Specifically, VIVINT Vice President Tyler Williams represented to Ms. Fisher

that she would not h~t~r!<5l~ay anything, that her tenant would be liable for any ,l :!, Jl

payments, that there was ~'.9 contract, that he needed a voided check only to confirm that Fisher's bankaccount was active, and that Fisher's electricity bill

9 Complaint for Damages and Injunctive Relief

1

2

3

4

5

6

7

would go down, when in fact, VIVINT forged Fisher and her daughter's ' , . , •,":J<J•:'~fi I

signatures on a 20 Yekf W-~reement that was not provided to either them, she has J lj

been required to make payments to VIVINT, VIVINT has withdrawn monies

from Fisher's bank account, her electricity bill has gone up, and VIVINT

maintains that the 20 Year Agreement is final and binding on both Fisher and

Morken.and

(c) Civil Code §l 770(a)(19)- Inserting an unconscionable provision in the

8 II contact. Specifically, VIVINT forged both Fisher and Morken's signatures on a . ,,. i ;ti

9 II 20 Year Agreement that neither had agreed to. . . ri

, ~Ii 10 II 42. Defendants' violations ofjhe CLRA present a continuing threat to Plaintiff in that

: l. ·''~

11 II Defendants continue to engage in the aboye-referenced acts and practices, and unless enjoined ! f .

;.

12 II from doing so by this Court, will continue to do so.

13

14

15

16

17

18

19

20

21

i

Pursuant to Civil Code § 1780, et seq., Plaintiff seeks an order enjoining 43.

VIVINT's methods, acts, and practices and any other relief that the Court deems proper.

Plaintiff is also entitled to an award of attorneys' fees and costs pursuant to Civil Code §1780(d).

WHEREFORE, Plaintiff prays for relief as set forth below.

THIRD CAUSE OF ACTION f ·j:( i;j(Tort-In-Se)

(On Behalf of Pl~intiff against all Defendants)

Plaintiff realleges anl inc6~orates by reference herein all of the allegations set 44.

forth above.

45. Penal Code §§470(a) and (b) make it a crime to forge the signature of another

22 11 with the intent to defraud. VIVINT violated Penal Code §§470(a) and (b) by forging Florence

23 II Fisher's signature on the 20 Year Agreernent.

24

25

26

27

28

Defendant VIVINT's violation of Penal Code §470 constitutes a tort-in-se . ,:1 46. \ .. ,. .•

because plaintiff is a member of the publjc for whose benefit the statute was enacted. Laczko v. {;(

Jules Meyers, Inc. (1969) 276 Cal.App.2~~293, 295. ': .. ~

47. Plaintiff Florence Fisher n~ver would have agreed to enter into a 20-year contract.

She would be 106 before her obligation ended. Plaintiff has been damaged in the amount of the

10 Complaint for Damages and Injunctive Relief

'1(

. l • !{.;. 20 Year Agreement and all amountspaidunder the 20 Year Agreement.

2 II 48. VIVINT's violation otPe~al Code §470 was committed by and ratified by ' '· .

3 II VIV INT Vice President Tyler Williains.\1In addition, the violation of Penal Code §470 was

4 II ratified by VIVINT's managing agents When they refused to rescind the contract after learning o

5 II the forgery.

6 ,'jl

VIVINT has a pattern and.practice of forging consumer's signatures in order to 49.

7 II execute Power Purchase Agreements.

8

9

10

11

12

13

14

15

16

17

18

19

20

' VIVINT acted with malice, oppression, and/or fraud towards Plaintiff, within the 50.

meaning of Civil Code '§3294, there,t~f,itling Plaintiff to an award of punitive damages.

51. VIVINT's corporate Jmcirs, directors, or managing agents are personally guilty • : I ·~'' of oppression, fraud or malice, had advance knowledge of the unfitness of the employees who

acted towards Plaintiff and act with malice, oppression, or fraud, employed such employees with

conscious disregard for the rights or safety of others, and/or themselves authorized or ratified the

wrongful conduct or knowingly accepted and retained the benefits of the wrongdoing. These

managing agents include VIVINT Vice President of Sales Tyler Williams.

WHEREFORE, Plaintiff pray~ fo~_-relief as set forth below. ' , •..

. . '! 'l. i~· FOURTH CAUSE OF ACTION.

(Violation of the Elder and Dependertt Adult Civil Protection Act, Welfare & Institutions . ,. Co~e §15600, et seq.)

:(On Behalf of Plaintiff Against All Defendants)

52. I

Plaintiff realleges and incorporates by reference herein all of the allegations set

21 II forth above. Ii

22 The Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA") was 53.

23 enacted in 1991 to protect elders and dependent adults from both financial and physical abuse.

24 The EADACPA recognized that the elderly are more subject to abuse, neglect, and abandonment

25 II and creates heightened protecti6n~ ·fd;.ftt~~disadvantaged class. The intent of the statute is to f ')! .

26 II "enable interested persons to engage '.attofueys to take up the cause of abused elderly persons and

27 II dependent adults." Welfare & Institution~ Code § 15600G).

28 Plaintiff Florence Fisher at: all times relevant to the events described herein, was

11

54.

Complaint for Damages and Injunctive Relief

t,.'.~'h't', ) ~ ;· . '?.t 1 II an "elder" adult within the meaning of W~lfare & Institutions Code § 15610.27 in that she is, and

2 11 at all times relevant, was over 65 years of age and is hard of hearing. Ms. Fisher is 88 years old

3 II and is hard of hearing.

4 55. The acts and omissions of defendants as above alleged constitute financial abuse

5 II of an elder adult within the purview and protections of the California Welfare & Institutions

6 II Code § 15610.07 in that they were the proximate cause of the financial abuse or other treatment

7 II with resulting physical harm, and pain or mental suffering to Plaintiff Florence Fisher. "Mental '. ,, 8 II suffering" as used herein means fear,1 ag~f tion, confusion, severe depression, or other forms of

" ''" 9 II serious emotional distress that is bro~ghti~bout by forms of intimidating behavior, threats,

ti

10 II harassment, or by deceptive acts performgd, or false and misleading statements made with

11 II malicious intent to cause such mental co~ditions in an elder or dependent adult.

12 56. At all times relevant herein, defendant VIVINT and its managing agents actually

13 II knew or should have known based on itsown observations that Plaintiff Fisher was hard of

14 hearing and that Ms. Fisher had never agreed to a 20 Year Agreement. Nonetheless VIV INT

15 took undue advantage of the elderly Ms. Fisher, withholding from her material information and

16 II misrepresenting the nature of the tran,?1t:1\6n. Specifically, VIVINT and its managing agents lied

17 to Ms. Fisher that she would not be lfab'1hior payments, and that her electricity bill would go

18 down, when in fact, VIVINT forged ~s. Fisher's signature for a 20 Year Agreement. Then 86-

19 year-old Ms. Fisher would never have agreed to a 20 Year Agreement. Furthermore, VIVINT

20 and its managing agents lied to Ms. Fisher as to why she needed to provide VIVINT with a

21 voided check, in order to withdraw money from Ms. Fisher's bank accounts. VIVINT knew or

22 should have known that its conduct was likely to be harmful to Ms. Fisher.

23 57. In doing the acts alleged herein defendants, and each of them, took, secreted,

24 II appropriated, or retained ( or else ,assikt~i#n so taking, secreting, appropriating, or retaining) the 4 .'!;,

25 II property of Plaintiff Fisher to a wronkfu1:bse, or with the intent to defraud, or both, the property ! t

26 II of Plaintiff Fisher, thereby causing her to'suffer financial abuse.

27 58. In committing the acts and omissions alleged herein, defendants acted with

28 II recklessness, oppression, fraud, or malice in the commission of this abuse. As a direct and legal <,l 12

Complaint for Damages and Injunctive Relief

1

2

3

4

5

6

7

8

9

10

11

12

13

' \!~

i ,t,~~ 'l 'l\i

' . result of Defendants' violation oftheiE1lJr and Dependent Adult Civil Protection Act in its

t jl

dealings with Plaintiff Fisher, Plaintiff Fisher has suffered actual, consequential and incidental

damages, including without limitation, with respect to Plaintiff Fisher's mental suffering and

emotional distress. Plaintiff Fisher continues to suffer damages, the precise amount of which is

unknown at the present time; the limitations of Code of Civil Procedure §377.34 do not apply

here. In addition to all other remedies provided by law, pursuant to terms of Welfare &

Institutions Code §15657.5, Plaintiff Fisher is entitled to actual damages, attorneys' fees,

expenses and costs of suit incurred hi,i~t~iJ.'and treble damages pursuant to Civil Code §3345, and !' ;!

all other forms of relief otherwise all~wed by law. I

WHEREFORE, Plaintiff prays for relief as set forth below.

59.

FIFTH CAUSE OF ACTION (For Violations of Business and Professions Code §17200, et seq.)

(On Behalf of Plaintiff Against all Defendants)

Plaintiff realleges and incorporates by reference as though fully set forth herein

14 II each and every allegation contained in jhe paragraphs above.

15 II 60. Plaintiff has standing to b~ing this claim because she has lost money or property I h1

16 II as a result of the misconduct allegedin that Plaintiff has made payments to VIVINT that she ' ,:\

17 II otherwise would not have made and fem/ins liable on a 20 Year Agreement that she never !.

18 II signed.

19 Business and Professions Code § 17200, et seq., "The Unfair Competition Law" 61.

20 II ("UCL"), defines unfair competition to irt1clude any unlawful, unfair, or fraudulent business act • !

21 II or practice, and prohibits such conduct. Beginning on an exact date unknown to Plaintiff, but at

22 II all times relevant herein, Defendants committed acts of unfair competition proscribed by the

23 II UCL, including the practices alleged herein. ~ J,J.\," I

24 II 62. As previously allegedHh i*e four years preceding the filing of this action, and \ t

25 II continuing for all relevant times, Defend;nts developed, implemented, and participated in a I

26 deliberate and ongoing scheme of home solicitation and the sale of solar energy services in

27 California where it unlawfully, deceptively and unfairly:

28 (a) failed to comply with the provisions of California's Home Solicitation

13 Complaint for Damages and Injunctive Relief

.t

.r·.1

·1· 1;i t,:

L

1 II including Plaintiff, who have been victimized by the acts and practices challenged herein.

2 II Defendants have failed to disgorge any ofthese revenues that do not properly belong to them and

3 II restore in the form of restitution all such hinds which properly belong to the affected consumers. \

4 68. i.'

Pursuant to Business and Professions Code § 17203, Plaintiff seeks an order

5 enjoining Defendants from engaging in such acts and practices as hereinabove alleged.

6 69. Plaintiff is entitled to Jw.a~~rd of attorneys' fees and costs in prosecuting this nih'.i' ··"· ':I

7 II action under Code of Civil Procedure § l 021.5 because: · .{ ,' ~-

8 II (a) A successful outcome in this action will result in the enforcement of

9 II important rights affecting the public interest by protecting the general public from

l O unfair, unlawful, and deceptive practices, by preventing consumer fraud in home

11 solicitations.

12

13

14

15

16

17

18

19

20

21

22

23

24

25 11 (1)

(b) This action will result in a significant public benefit by causing the

disgorgement of revenues improperly collected and retained by Defendants, together I· ,1

with interest on that moneyand through the issuance of an injunction against ,!L

unlawful and deceptive sales practices. r

Unless this complaint is prosecuted, Defendants' activities will go (c) ' unremedied and will continue, and consumers in the State of California will not

l recover money properly belonging to them;

(d) . i..

Plaintiff is an individual of modest means with limited access to the courts J .

and the civil justice system: Unless attorneys' fees, costs and expenses are awarded

against Defendants, Plaintiff will not recover the full measure of their loss.

WHEREFORE, Plaintiff prayff~!iff lief as set forth below: :; ·: dt.,

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for'relief as follows:

For actual damages and compensatory damages in excess of the jurisdictional minimum

26 II of this court;

27 (2)

28 (3)

For punitive damages;

For a determination by the Court that the 20 Year Agreement has been rescinded, and ! .. ·ii, 15

I Complaint f6r Damages and Injunctive Relief

'\ •,'I_ 1'

".i:. '\i

1 II cancellation of any future obligation thereunder;

2 II (4) Pursuant to Civil Code §1689.11, that Ms. Fisher's home be restored to substantially as

good of condition as it was at the time the services were rendered; 3

4

5

6

(5)

(6)

For Prejudgment interest at the maximum legal rate; '· l ~: I

Declaratory relief that, pursuant to Civil Code section 1689.11, that VIVINT is entitled to . I ·'

. \ ·~' . no compensation for work performed pri°Q~ to the cancellation;

7 (7)

8 (8)

. ,, . ,.,. .. For an order enjoining Defendants from engaging in the practice challenged herein;

.i·1 For an award of attorneys' fees, costs, and expenses incurred in the investigation, filing,

9 II and prosecution of this action; and I

10 II (9) For such other and further relief as this Court shall deem just and proper. , l1

I h'

11 II Dated: August 3, 2018 KEMNITZER, BARRON & KRIEG, LLP

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

By: ·. 1 'ii.r,f1: BRYAN KEMNITZER

. . -;> ELLIOT J. CONN 1./

,} I•

C

;1 f, ,,.

16 C:oriipl~~:f9' Damages and Injunctive Relief

!.

311 Dated:. August 3, 2018

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

· 25

26

27

28

1

2

..1· o:

. i:

JURY TRIAL DEMANDED

Plaintiff demands a trial by jury Oft all issues so triable.

3 Dated: August 3, 2018 KEMNITZER, BARRON & KRIEG, LLP

4

.:B~: ' :1.\lt.\::)> BRYAN KEMNITZER

ELLIOT J. CONN

I .,

' )i

17 Complainrfor Damages and Injunctive Relief

I 1111111111111111111111111111111 IIIII IIIII IIII 1111 21019189

FOR COURT USE ONLY f', TT OR NEY OR PARTY WITHOUT A TT OR NEY (Name. State Bar number, and address): Bryan Kemnitzer Bar No. 066401 Elliot Conn Bar No. 279920 KEMNITZER, BARRON & KRIEG, LL·P 445 Bush St., 6th Floor San Francisco, CA 94108

TELEPHONE NO.: ( 415 ) 6 3 2 - 19 0 0 £lorence E'_is_her

FAX NO.: (415) 632-1901

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA STREET ADDRESS: 122 5 Fallon St. , Room 20 9 MAILING ADDRESS: 1

• f !1,~ "i) CITYANDZIPCODE: Oakland, CA 94612 •. '

BRANCHNAME: NORT_li_E_RN_ DIVISION___ '. _1_

CASE NAME· FISHER v. VIVINT SOLAR i' . I

JF]]LlE])) ALAMEDA COUNTY

AUG O 6 2018

CIVIL CASE COVER SHEET Complex Case Designation [Kl Unlimited D Limited D Counter D Joinder

(Amount (Amount . .

1

. demanded demanded is Filed with first appearance by defendant JUDGE: ~JCJ:;e_eds $25,000) $25~000 or lessl (Cal. Rules of Court, rule 3.402) DEPT:

Items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case:

Auto Tort Contract D Auto (22) D Breach of contracVwarranty (06) D Uninsured motorist (46) D Rule 3.740 collections (09) Other Pl/PD/WO (Personal Injury/Property D Other collectidhs (09) Damage/Wrongful Death) Tort D

1 ,., (18) nsurance coverage

D Asbestos (04) D Other contract (37) D Product liability (24) Real Property , D Medical malpractice (45) D Eminent domain/Inverse D Other PI/PD/WD (23) condemnation (14) Non-Pl/PD/WO (Other) Tort D Wrongful eviction (33) [Kl Business tort/unfair business practice (07) D Other real property (26) D Civil rights (08) Unlawful Detainer ' D Defamation (13) D Commercial (31) D Fraud (16) D Residential (32) D Intellectual property (19) D Drugs (38) D Professional negligence (25) Judicial Review i: D Other non-Pl/PD/WO tort (35) D Asset forfeitur~' (05) Employment D Petition re: arbitration award (11) D Wrongful termination (36) D Writ of mandate (02) D Other employment (15) D Other judicial review (39)

Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) D AntitrusVTrade regulation (03) D Construction defect (10) D Mass tort (40) D Securities litigation (28) D Environmental/Toxic tort (30) D Insurance coverage claims arising from the

above listed provisionally complex case types (41)

Enforcement of ~udgment D Enforcement of judgment (20) Miscellaneous Civil Complaint 0 RIC0(27) D Other complaint (not specified above) (42) Miscellaneous Civil Petition D Partnership and corporate governance (21) D Other petition (not specified above) (43)

2. This case D is [Kl is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: · • -11.;. ·"' a. D Large number of separately represented parties~ d.··io Large number of witnesses b. D Extensive motion practice raising difficult or novel e. :It] Coordination with related actions pending in one or more courts

t. issues that will be time-consuming to resolve i in other counties, states, or countries, or in a federal court

c. D Substantial amount of documentary evidence f. D Substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): a. [Kl monetary b. [Kl nonmonetary; declaratory or injunctive relief c. [Kl punitive 4. Number of causes of action (specify): s 5. This case D is [Kl is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: August 3, 2018 ~ ~ Elliot Conn ,.

(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR A HORNEY FOR PARTY)

NOJICE • Plaintiff must file this cover sheet with the first paper filed in the fCtion or proceeding (except small claims cases or cases filed

under the Probate Code, Family Code, or Welfare and lnstitutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. ·,r-

• File this cover sheet in addition to any cover sheet required byjocal court rule . • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all

other parties to the action or proceeding. ' .: • Unless this is a collections case under rule 3.740 or a complex~ase, this cover sheet will be used for statistical purposes only.

·' · 1 Page 1 of 2 Form Adopted for Mandatory Use

Judicial Council of California CM-010 jRev. July 1, 2007]

2 30 3.220, 3.400-J.403, 3.740; CIVIL CASE ~?VER SHEET " ''\'.:r,,V"J:)jf