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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`NARCISO FUENTES,
`Plaintiff,
`
`v.
`
`DISH NETWORK L.L.C.,
`Defendant.
`
`Case No. 16-cv-02001-JSW
`
`
`ORDER RESOLVING CROSS-
`MOTIONS FOR SUMMARY
`JUDGMENT AND SETTING STATUS
`CONFERENCE
`Re: Dkt. No. 155, 157
`
`
`
`
`
`
`Now before the Court for consideration are the cross-motions for summary judgment, filed
`
`by Plaintiff Narciso Fuentes (“Fuentes”) and Defendant Dish Network L.L.C. (“Dish”). The Court
`has considered the parties papers, relevant legal authority, and the record in this case, and the
`Court HEREBY GRANTS, IN PART, AND DENIES, IN PART, Dish’s motion, and GRANTS
`Fuentes’ motion.
`
`BACKGROUND
`Fuentes’ claims against Dish are based on alleged violations of four California statutes: the
`Home Solicitation Sales Act (“HSSA”), Translation Act (“CTA”), the Consumer Legal Remedies
`Act (“CLRA”), and the Unfair Competition Law (“UCL”). The facts, which are undisputed unless
`otherwise noted, supporting these claims are as follows:
`On or about August 1, 2015, Fuentes, who speaks Spanish, received a Spanish language
`postcard in the mail advertising Dish’s satellite television service for $19.99 per month for 12
`months. The postcard included other terms and conditions, in small print, including the following:
`(1) if service was terminated during the first 24 months, a cancellation fee of $20 per month
`remaining on the contract would apply; and (2) the prices for certain equipment. (Dkt. No. 155-3,
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`Declaration of Clifford E. Yin (“Yin Decl.”), ¶ 5, Ex. A (Deposition of Narciso Fuentes (“Fuentes
`Depo.”) at 73:5-20, 75:21-77:23; Dkt. No. 155-4, Fuentes Depo. Ex. 41.)
`Dish has some month-to-month subscription options, and those customers pay Dish’s full
`retail rates and purchase Dish’s equipment. In order to determine if a customer qualifies for
`promotional rates and the option to lease equipment, Dish will run a credit check, with a
`customer’s permission. (Dkt. No. 156-4, Declaration of Elliot Conn in Support of Motion for
`Summary Judgment (“Conn MSJ Decl.”), ¶ 9, Ex. H (Deposition of Mark Vervaet (“Vervaet
`Depo.”) at 13:17-22, 39:7-41:5; Dkt. No. 168-1, Declaration of Elliot Conn in Opposition to Dish
`Motion for Summary Judgment (“Conn Opp. Decl.”), ¶¶ 3-4, Ex. B (Deposition of Paul Orban
`(“Orban Depo.”) at 20:11-21:14, 46:17-22, 47:1-10), Ex. C (Deposition of Shannon Picchione
`(“Picchione Depo.”) at 16:16-25, 18:7-12, 22:3-23:18, 25:16-26:18, 31:24-33:8.)
`On August 2, 2022 Fuentes called Dish, spoke with its employee Claudia Flores, and asked
`whether the offer of $19.99 per month was “with a contract? … or, is it more on a monthly basis.”
`Flores asked Mr. Fuentes some questions about the type of televisions he had in his home and
`what type of programs he liked to watch. She then advised Fuentes that to determine if Dish could
`give him the promotion, she would need to run a credit check, and Fuentes gave permission to run
`it. (Dkt. No. 155-14, Declaration of Jodeci Guzman (“Guzman Decl.”), ¶¶ 2, 5-6, Exs. C-D
`(Transcripts of Recordings on 8/2/15 (“8/2/15 Tr.”) at 1-7).)1 Flores then advised Fuentes he
`qualified for two offers, both of which required two year terms: (1) a fixed price for both years;
`and (2) a discounted price during the first year that would increase during the second. Flores also
`explained that the $19.99 offer was for one TV and represented the cost of the programming
`without a digital recorder. (8/2/15 Tr. at 8-9.) Fuentes did not subscribe that day because Dish
`could not offer him $19.99 per month for one year. (Fuentes Depo. at 72:9-12.)
`On August 6, 2015, Fuentes called Dish again and spoke with Paulina Nunez (“Nunez”).
`(Guzman Decl., ¶¶ 3-4, Exs. A-B (Transcripts of Recordings on 8/6/15 (“8/6/15 Tr.”); see also
`Fuentes Depo. at 52:20-53:8).) Fuentes testified that he called Dish again because he wanted to
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`When the Court quotes from a transcript, it is quoting from the English translation.
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`determine if he could get a one-year contract. (Fuentes Depo. at 75:317.) Like Flores, Nunez
`advised Fuentes she would need to run a credit check in order to determine what offers would be
`available, and Fuentes consented. (8/6/15 Tr. at 2-5). When Nunez pulled up the offers available
`to him, she also referred Fuentes to the small print on the postcard regarding the prices for
`equipment, and Fuentes acknowledged those prices. (Id. at 6-7.) Nunez advised Fuentes about an
`offer would give him a promotional rate of $19.99 for the first year, plus $12.00 for the “Hopper
`equipment.” (Id. at 7.)2 Nunez also explained that Fuentes would receive three months of certain
`premium channels and six months of protection for the equipment for free, but if he did not want
`to be charged for those items, he would need to cancel them on or before the trial periods ended.
`(Id. at 20-22.)
`Nunez advised Fuentes she was “going to go over the clauses of the plan” and advised
`Fuentes that: “all of the equipment is rented;” there would be a charge for unreturned equipment;
`he had “selected the offer of savings for the first year, upon signing up”; and Dish would
`“automatically charge” him for the amount due. Nunez asked Fuentes if he wanted to sign up, and
`he said, “Uh-huh. All right.” (Id. at 24.) Nunez then advised Fuentes that the “price of the
`package” was $19.99 for the first year and when that promotional period was over it would be
`$44.99 per month, that he needed to keep the premium channels for three months “to receive this
`offer,” that he would be charged extra for those channels if he did not cancel after three months,
`and that he would receive the protection plan free for six months, but after six months he would be
`charged extra for that service, unless he cancelled.
`Nunez also advised Fuentes that “[b]y receiving these offers, you are going to accept a 24-
`month contract. … If you break this agreement, you will be charged for early termination, for the
`cost of $20 for each month that you have your contract,” and that his initial bill would be $31.99.
`(Id. at 25.) Nunez also stated, “…all the prices, programming, functionality, offers are subject to
`change. Dish may increase your monthly bill at any time. However, the price of your
`programming package is protected for 12 months. Okay?” Nunez asked Fuentes if he “agree[d] to
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`Nunez actually stated that the price was “20 dollars” plus the equipment. (Id. at 7-9.)
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`all the terms and conditions [she] just read[.]” Fuentes said, “Yes, all right.” (Id.; see also
`Fuentes Depo. at 77:20-23, 93:3-95:12.)
`At the end of the August 6 phone call, Nunez and Fuentes had the following exchange:
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`NUNEZ: Anything else I can help you with?
`FUENTES: Yes. Well, well sure, everything is fine. So just 3 more
`months, and then cancel the movies and 12 months and it will be
`$31.99, right?
`NUNEZ: Correct. Mm-hmm.
`FUENTES: Uh-huh. Okay. So then after 12 months, it … if, if I
`don’t cut it off, they would charge as normal, right?
`NUNEZ: Correct. Uh-huh.
`FUENTES: Uh-huh. Yes … no, well, I’ll call before the 12 months
`are up.
`NUNEZ: Correct. Mm-hmm.
`FUENTES: You know? Oh, all right.
`NUNEZ: Okay?
`FUENTES: Uh-huh.
`NUNEZ: So that would be all set then. Okay? Welcome to the Dish
`family. Well, remember that the discount, so, it’s for just 12
`months. Afterwards, you, the contract, it can terminate, you know?
`But ,well sure…
`FUENTES: Uh-huh. All right.
`NUNEZ: But as I told you, 24 months, the discount for 12 full
`months. Okay?
`FUENTES: Uh-huh. All right.
`(8/6/15 Tr. at 35.)
`On August 8, 2015, a Dish technician came to Fuentes’ home to install the necessary
`equipment and to activate the service. It is undisputed that the technician did not speak Spanish.
`Fuentes testified the technician spent two to three hours installing the equipment and then,
`pursuant to Dish’s practices, presented Fuentes with a tablet that contained an electronic version of
`Dish’s Digital Home Advantage Plan Agreement (“DHAP”), in English, and an English language
`version of a brochure that contains Dish’s Residential Customer Agreement, which incorporates
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`Case 4:16-cv-02001-JSW Document 172 Filed 11/15/22 Page 5 of 18
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`the DHAP by reference. (Fuentes Depo. at 129:4-130:11, 188:16-21; Conn MSJ Decl., ¶¶ 2, 8,
`Ex. A (Fuentes Depo. Ex. 42 (RCA and DHAP), Ex. G (Deposition of Megan Casados (“Casados
`Depo.”) at 57:10-58:2).) Dish requires a customer to sign the DHAP, either on paper or
`electronically, in order to receive service, and customers normally sign the DHAP at the location
`where the service is installed. (Casados Depo. at 73:14-75:4, 79:18-24.)
`Because the document on the tablet was in English, Fuentes was not able to read it but
`“saw a lot of 24s.” (Fuentes Depo. at 125:3-23, 150:24-151;1.) Fuentes told the technician that he
`did not want to sign and, according to Fuentes, the technician told him to sign the document and
`“call the company and handle that.” (Id. at 123:4-126:16.) Fuentes also testified that he did not
`know how to ask for a Spanish version of the document and could not ask his wife, who speaks
`English, for assistance because she was in the shower. However, Fuentes also testified that he did
`not ask for assistance when his wife was available. (Fuentes Depo. at 124:19-23, 126:12-24.) The
`Dish technician did not – and could not – provide Fuentes with a Spanish version of the DHAP
`because it is not available on Dish’s tablets. (Casados Depo. at 62:1-10 79:18-24, 109:19-110:1.)
`According to Fuentes, he signed the DHAP because even though he saw the references to
`24 months, he believed he had reached an agreement with Nunez for a one-year contract. Fuentes
`called Dish within a few days to “handle that issue,” and it is undisputed that Fuentes was not able
`to modify the term of his contract. (Id. 130:20-25, 139:12-20, 211:18-25, 213:1-7; see also Conn
`MSJ Decl., Ex. D (Declaration of Narciso Fuentes in Support of Motion for Class Certification, ¶¶
`7-11).) It also is undisputed that Fuentes’ DHAP and the RCA contain terms and conditions in
`addition to the terms Nunez read during the telephone call with Fuentes. Fuentes terminated his
`Dish subscription in August 2017 and has not subscribed since that time. (Fuentes Depo. at 45:11-
`19, 237:1-9).)
`The Court will address additional facts as necessary in the analysis.
`
`//
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`ANALYSIS
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`A.
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`Applicable Legal Standards.
`“A party may move for summary judgment, identifying each claim or defense . . . on
`which summary judgment is sought.” Fed. R. Civ. P. 56(a). Where, as here, “parties submit
`cross-motions for summary judgment, each motion must be considered on its own merits.” Fair
`Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001)
`(citations and internal punctuation marks omitted). A principal purpose of the summary judgment
`procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477
`U.S. 317, 323-24 (1986). Summary judgment, or partial summary judgment, is proper “if the
`movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
`judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may not weigh evidence or make
`determinations of credibility. Rather, “[t]he evidence of the non-movant is to be believed, and all
`justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, 477 U.S. 242, 255
`(1986).
`The party moving for summary judgment bears the initial burden of identifying those
`portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue
`of material fact. Celotex, 477 U.S. at 323; see also Fed. R. Civ. P. 56(c). An issue of fact is
`“genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non-
`moving party. Anderson, 477 U.S. at 248-49. A fact is “material” if it may affect the outcome of
`the case. Id. at 248. If the party moving for summary judgment does not have the ultimate burden
`of persuasion at trial, the party must produce evidence which either negates an essential element of
`the non-moving party’s claims or show that the non-moving party does not have enough evidence
`of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine
`Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
`Once the moving party meets its initial burden, the non-moving party must “identify with
`reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91
`F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th
`Cir. 1995)). It is not the Court’s task “to scour the record in search of a genuine issue of triable
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`fact.” Id. (quoting Richards, 55 F.3d at 251); see also Fed. R. Civ. P. 56(c)(3) (“The court need
`consider only the cited materials, but it may consider other materials in the record.”). “A mere
`scintilla of evidence will not be sufficient to defeat a properly supported motion for summary
`judgment; rather, the nonmoving party must introduce some significant probative evidence
`tending to support the complaint.” Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th
`Cir. 1997) (citation and internal quotation marks omitted). If the non-moving party fails to point
`to evidence precluding summary judgment, the moving party is entitled to judgment as a matter of
`law. Celotex, 477 U.S. at 323.
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`B.
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`Evidentiary Issues.
`1.
`Fuentes’ Requests for Judicial Notice.
`Fuentes asks the Court to take judicial notice of pleadings and declarations filed by Dish in
`two unrelated cases: Nordeman v. Dish Network, LLC, 21-cv-923-TSH (N.D. Cal.) and Miller v.
`Dish Network, LLC, No. 17-cv-432-REP (E.D. Va). (See Dkt. Nos. 157-2, 168-2.) The Court can
`take judicial notice of the existence of court documents and of the fact that certain statements were
`made, but it cannot take judicial notice of disputed facts. See, e.g., Lee v. City of Los Angeles, 250
`F.3d 668, 690 (9th Cir. 2001). Dish objects to the Court’s consideration of these documents and
`argues Fuentes is relying on statements contained in those pleadings that do not pertain to his
`transaction. The Court did not rely on the pleadings and declarations in the Nordeman case to
`resolve the motion. Accordingly, Dish’s objections to those requests are moot.
`Fuentes asks the Court to take judicial notice a motion to dismiss in Miller, in which Dish
`argued it had a “permissible purpose” under the Fair Credit Reporting Act to run credit checks. In
`that brief, Dish cited 15 U.S.C. section 1681b(A)(3)(A), which allows a person to run a credit
`check in connection with an extension of credit. Fuentes argues these statements support his
`claims under the CTA. “[S]tatements of fact contained in a brief may be considered admissions of
`the party in the discretion of the district court.” Am. Title Co. Ins. Co. v. Lacelaw Corp., 861 F.2d
`224, 227 (9th Cir. 1987). However, the Court does not construe the statement on which Fuentes
`relies as a statement of fact or an admission by Dish that it runs credit checks because it is
`extending credit to customers. Instead, the statement is best construed as counsel’s argument
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`responding to the plaintiff’s allegations. The Court SUSTAINS Dish’s objection, and it takes
`judicial notice only of the existence of the brief and that the statement was made.
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`2.
`Dish’s Request for Judicial Notice.
`Dish asks the Court to take judicial notice of portions of the HSSA’s legislative history.
`Although Fuentes has not objected, the Court denies the request. To the extent the HSSA is
`ambiguous, the Court may consider legislative history as part of its analysis. See, e.g. Floyd v.
`Am. Honda Motor Co., 966 F.3d 1027, 1034 (9th Cir. 2020); Klein v. United States, 50 Cal. 4th
`68, 77 (2010).
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`C.
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`Fuentes is Entitled to Judgment on the HSSA Claim.3
`It is undisputed that Fuentes’ DHAP and RCA did not comply with the HSSA, which
`requires that a contract falling within its scope include information about a buyer’s right to cancel
`and be written in the same language as an oral sales presentation. See Cal. Civ. Code §§
`1689.6(a)(1), 1689.7(a)(1)(c). “Until the seller has complied with this section the buyer may
`cancel the home solicitation contract or offer.” Id. § 1689.7(g). The parties’ dispute centers on
`whether the contract falls within the scope of the HSSA.
`A “[h]ome solicitation contract or offer” means “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.” Id. § 1689.5(a). “[A]ppropriate trade premises” means
`“premises where either the owner or seller normally carries on a business, or where goods are
`normally offered or exposed for sale in the course of a business carried on at those premises.” Id.
`§ 1689.5(b). In order to determine whether the parties entered the contract at an “appropriate trade
`premises,” the Court looks to whether that took place “somewhere other than the [Dish’s] place of
`business.” Louis Luskin & Sons, Inc. v. Samovita, 166 Cal. App. 3d 533, 536 (1985); see also
`Weatherall Alum. Products Co. v. Scott, 71 Cal. App. 3d 245, 248 (1977).
`
`
`The parties filed cross-motions for summary judgment on the HSSA claim. Dish argues
`3
`Fuentes’ cross-motion is procedurally improper because he raises arguments about Dish’s
`practices as a whole, even though the Court denied Fuentes’ motion for class certification. The
`Court has limited its analysis to Fuentes’ transaction with Dish.
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`Dish argues the contract was formed during Fuentes’ telephone call with Nunez on August
`6, and Fuentes argues there was no contract until he signed the tablet at his home. Under
`California law, “an oral contract consummated over the telephone is deemed made where the
`offeree utters the words of acceptance.” Travelers Ins. Co. v. Workmen’s Compl. App. Bd., 68
`Cal. 2d 7, 14 (1967); see also People v. Toomey, 157 Cal. App. 3d 1, 14 (1984) (“We recognize
`that telephone solicitations do not result in an intimidating presence of the seller in the buyer’s
`home to the extent found in a ‘door-to-door‘ sale; yet the same pressure to make an immediate
`decision arises from such solicitations, justifying the protection of the home solicitation sales
`Act—particularly its three-day cancellation provision.”).
`Dish argues that Fuentes was the “offeror,” but the Court is not persuaded. Although
`Fuentes initiated the call to Dish to determine whether he could get a one year contract, it was
`Nunez who provided Fuentes with the terms upon which Dish would offer him services.
`Therefore, the record supports the conclusion that Fuentes was the offeree.4 Because it is
`undisputed that Fuentes made the call from his home, it was not done at Dish’s “appropriate trade
`premises.” The outcome would be the same if the Court accepts Fuentes’ argument that the
`parties did not form a contract until the technician presented him with the tablet following
`installation. Fuentes accepted the terms of that contract in his home, again placing it within the
`scope of the HSSA.
`Accordingly, Fuentes has demonstrated that his contract came within the scope of the
`HSSA, and it GRANTS his motion and DENIES Dish’s motion on this claim.
`
`D.
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`Dish Is Entitled to Judgment on the CTA Claim.
`It also is undisputed that Dish did not comply with the terms of the CTA. The CTA
`provides that that when a business negotiates specified contracts primarily in Spanish, as Dish did
`here, he customer must be provided with a Spanish translation of the contract that includes every
`term and condition in the contract before the customer executes the contract. The CTA expressly
`
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`The transcript also is subject to the interpretation that Fuentes believed he could cancel
`4
`without penalty after one year, and Nunez’s remarks at the end do not clearly correct that
`impression. (8/6/15 Tr. at 35-36.)
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`includes contracts subject to the provisions of the Unruh Act. Cal. Civ. Code § 1632(b)(1).
`Fuentes claims his DHAP is a “retail installment contract” falling within the scope of the
`Unruh Act.5 A retail installment contract under the Unruh Act is “any contract for a retail
`installment sale between a buyer and seller, entered into or performed in this state, … which
`provides for payment in more than four installments.” Cal. Civ. Code § 1802.6(b). The phrase
`“retail installment sale” requires that services are furnished “for a deferred payment price payable
`in installments.” Id. § 1802.5. Finally, the term “[d]eferred payment price means the total cash
`price of the services including any finance charges.” Crawford, 160 Cal. App. 3d at 1169 (citing
`Cal. Civ. Code § 1802.9).
`Fuentes originally alleged that his DHAP met the definition of a retail installment contract
`because the cancellation fee, which diminished each month, “reflects an amortization of the total
`cost of the satellite TV service and related equipment, and is not a payment only for the service
`and equipment provided that particular month.” (SAC ¶ 55.) Fuentes now argues that because
`Dish offered him a “teaser rate” for the first year of his service, and that the teaser rate combined
`with the two-year term and cancellation fee allowed Dish deferred a portion of the total cost to the
`second year, after the teaser rate expired. (See Dkt. No. 168, Fuentes Opp. Br. at 12:14-22, 15:22-
`24; see also Conn Opp. Decl., ¶ 6 (asserting amount deferred was $278.67).)
`Civil Code section 1801.6(a) directs the Court to look to the substance, rather than the
`form of the transaction to determine if it falls within the scope of the Unruh Act. There is a dearth
`of authority that is on point. The parties’ agreement is not the typical retail installment contract,
`which usually would involve a large purchase (e.g., a washing machine), where the customer
`would make a down payment, incur a finance charge (defined in Civil Code section 1802.10), and
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`“The Unruh Act was enacted in 1959 for the purpose of correcting various abuses incident
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`to the rapid and widespread growth of the consumer credit industry.” King v. Central Bank, 18
`Cal. 3d 840, 843 (1977). The act “proscribes a variety of unfair practices and requires complete
`disclosure to the consumer of the total cost for the purchase of goods and services under a retail
`installment contract.” Crawford v. Farmers Grp., Inc., 160 Cal. App. 3d 1164, 1168 (1984).
`Fuentes does not argue that Dish failed to comply with substantive provisions of the Unruh Act in
`connection with the parties’ transaction. His sole claim is that Dish failed to comply with the
`CTA.
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`pay down the “amount financed” in installments over time. See, e.g., Siebert v. Sears, Roebuck &
`Co., 45 Cal. App. 3d 1, 6 (1975) (contrasting retail installment contracts with retail installment
`accounts, which also are covered by the Unruh Act). Fuentes also did not obtain a contract that he
`could pay each month without incurring any further obligation to Dish if he chose to terminate his
`service.
`In Crawford, the court examined whether an insurance contract that provided for monthly
`payments, plus a monthly service fee, on a six-month term policy was a retail installment contract
`under the Unruh Act. 160 Cal. App. 3d at 1168-69. The court concluded it was not. It reasoned
`the six-month term served to guaranty that plaintiff’s monthly premiums would remain the same
`and that she would be covered, as long as she paid the premium on time. Fuentes also was
`guaranteed that his monthly payments would remain the same for the first year and was also
`guaranteed fixed increase in price during the second year. Unlike Fuentes, the plaintiff in
`Crawford “could and did terminate the policy without further obligation to defendants[.] …
`Plaintiff owed no underlying obligation, and a creditor-debtor relationship did not arise.” Id. at
`1169; accord Mackey v. Bristol W. Ins. Serv. of Cal., 105 Cal. App. 4th 1247, 1271 (2003)
`(“Crawford teaches that in the absence of any remaining balance or underlying debt, the purchase
`of a monthly insurance policy is not a credit sale within the meaning of the Unruh Act.”).
`Dish again relies on Anderson v. Nextel Partners, Inc., 745 N.W.2d 464 (Iowa 2008). In
`that case, the plaintiff purchased two cell phones and cell phone service from the defendant. The
`parties agreed to a one-year term that allowed the plaintiff to cancel during that time, subject to
`$200 cancellation fee per phone. The plaintiff lost one of her phones, cancelled her service, and
`refused to pay the cancellation fee, which she argued violated provisions of Iowa’s Consumer
`Credit Code (“ICCC”) that were applicable to “consumer credit sales.” Id. at 465-67.6 The
`ICCC’s definition of credit included “the right granted by a person extending credit to a person …
`to purchase property or services and defer payment therefor.” Id. at 467 (quoting Iowa Code §
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`The purpose of the ICCC is nearly identical to the purpose of the Unruh Act: to protect
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`consumers against unfair practices in connection with “retail installment sales and other consumer
`credit.” Legg v. W. Bank, 873 N.W.2d 763, 768 (Iowa 2016).
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`537.1301(a)(15)).
`The court concluded the transaction did not fall within that definition. First, it determined
`that references in the agreement to credit and to the fact that defendant could rely on a credit check
`were not dispositive. Id. at 467-68 & n.8. It also reasoned that the plaintiff did not become
`indebted to the defendant for “the full year ‘term,’ but only for services already provided plus the
`early cancellation fee.” Id. at 468. The court also relied on the fact that the plaintiff could not
`“defer payment of any monthly invoice for services” provided by the defendant. Even if that
`payment structure could be viewed as the extension of credit, the court reasoned that the “‘debt’
`incurred each month was not payable in installments” as required by the ICCC. Id. at 468-69; see
`also Legg, 873 N.W.2d at 769 (referring to prior holdings that the “parties’ agreement needed to
`grant the debtor the right to defer repayment in order for there to be an extension of credit”). As in
`Anderson, Fuentes could not defer payment for Dish’s monthly services. However, unlike the
`cancellation fee in that case, Dish’s early termination fee also diminishes over the life of a
`contract.
`In Adamson v. ADT, LLC, the plaintiffs argued that the defendant’s contracts were
`“consumer credit transactions” subject to the federal Truth in Lending Act (“TILA”). There, the
`plaintiffs entered into fixed term contracts for services, which required payment of an early
`termination fee, and like the fee here, the fee diminished over the life of the contract. No. CV 12-
`10558 DMG (PLAx), 2014 WL 12551405, at *1, 8 (C.D. Cal. Apr. 7, 2014). TILA defined a
`consumer credit transaction as “‘credit offered or extended to a consumer primarily for personal,
`family, or household purposes’, by a creditor.” Id., at *11 (quoting 12 C.F.R. § 226.2(a)(12)).7
`The court concluded there were disputed issues of fact about whether the contracts were subject to
`TILA, in part, because of the early termination fee. The court also noted that the record suggested
`the monthly fees were not limited to the services rendered each month and might include fees for
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`Under TILA, credit means “the right granted by a creditor to a debtor to defer payment of a
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`debt or to incur debt and defer its payment.” 15 U.S.C. § 1602(e). A “creditor” is defined, in part,
`a person who “regularly extends … consumer credit which is payable by agreement in more than
`four installments or for which the payment of a finance charge is or may be required[.]” 15 U.S.C.
`§ 1602(g).
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`installation and equipment. Id., at *13 & n.7.
`The Adamson court relied, in part, on a trial court opinion in which the court concluded
`that ADT’s contracts were subject to the Unruh Act. Id. (citing People v. ADT Security Servs.
`Inc., Contra Costa County Superior Court No. C08-01301, Decision on Cross-Motions for
`Summary Adjudication (Nov. 6, 2009) (“ADT”)).8 In ADT, the defendant argued its contracts
`were analogous to the insurance contract at issue in Crawford. The court contrasted the situation
`presented in Crawford with a situation where “the ‘buyer’ must pay the full amount of the agreed
`consideration called for by the contract, whether or not he or she cancels or declines to receive
`further services.” Id. at 2. It concluded the latter type of contracts are “considered to contain a
`hidden finance charge” and would be subject to the Unruh Act. Id. However, ADT’s contracts
`did not fit squarely in either category because the cost of cancellation was less than the full value
`of the services provided. Id. at 2-3.
`The ADT court concluded the amount of the defendant’s early cancellation fee was “much
`more than a simple ‘service charge’ for termination” and was more like a liquidated damages
`provision. Id., at 4.9 It determined that “when the provisions of the contract are such that in
`cancellation situations the contract can be construed to be a retail i