NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONEYDA PEREZ, as an individual and on behalf of all others similarly situated,

Plaintiff

- Appellee,

v. DIRECTV, LLC, a Delaware Corporation,

Defendant

- Appellant,
and LONSTEIN LAW OFFICES, P.C., a New York Professional Corporation; et al.,

Defendants. No. 17

- 55764
D.C. No. 8:16

- cv - 01440

- JLS

- DFM

MEMORANDUM *

DONEYDA PEREZ, as an individual and on behalf of all others similarly situated,

Plaintiff

- Appellee,

v. DIRECTV, LLC, a Delaware Corporation,

Defendant, No. 17

- 55775
D.C. No. 8:16

- cv - 01440

- JLS

- DFM

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

OCT 19 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

and LONSTEIN LAW OFFICES, P.C., a New York Professional Corporation and JULIE COHEN LONSTEIN,

Defendants

- Appellants.
Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding Argued and Submitted October 11, 2018

Pasadena, California Before: WATFORD and OWENS, Circuit Judges, and PRESNELL, * * District Judge. DirecTV appeals from the district court’s order denying DirecTV’s motion to compel arbitration. We review de novo the district co urt ’s determinations about
the arbitrability of claims

. Tompkins v. 23andMe, Inc. , 840 F.3d 1016, 1021 (9th Cir. 2016). We review the underlying f actual findings for clear error and the interpretation of contract provisions de novo. Id

. As t he parties are familiar with
the fac ts, we do not recount them here. We affirm. Assuming without deciding that the parties entered into a valid contract, the
district court did not err in holding that Appellee Doneyda Perez ’s claims are outside the scope of the arbi tration agreement. Section 9(d) (ii) of DirecTV’s

* * The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation.3

Customer Agreement ex e m pts from the arbitration agreement “any dispute involving a violation of the Communications Act of 1934 . . . or any statement or law governing theft of service.” Both of these ex e m p tions unambiguously cover
Perez’s claims. First, Perez’s claims involve a violati on of the Communications
Act because her complaint expressly alleges that part of DirecTV’ s scheme against
small minority

- owned businesses involved threatening customers with lawsuits for violating the Communications Act. Second, Perez’s claims involve statements or law governing theft of service because her complaint alleges that DirecTV accused
her of theft of satellite cable television services and pressure d her into a settlement

. Because we conclude that Perez’s claim s are outside the scope of t he arbitration agreement , we do not reach the issue s of whether sections 1(h) and 9(d) of the Customer Agreement are unconscionable , or whether the Lonstein Appellant s may enforce DirecTV’s arbitration agreement against Perez

. AFFIRMED

.Perez v. Direc TV, LLC , No s . 17

- 55764 , 17

- 55775 WATFORD, Circuit Judge, dissenting: I dissent, but I do so with great reluctance. The conduct Direc TV is accused of engaging in here is deplorable . According to the allegations in Ms. Perez’s complaint , a Direc TV salesman walked into her beauty salon and offered her a great promotional deal if she signed up for DirecTV service for her business. The salesman persuaded her to have the se rvice hooked up that same day, and he could see that the programming would be shown in Ms. Perez’s beauty salon, viewable by her customers. But unbeknownst to Ms. Perez, DirecTV classified her account
as a residential account. Under the terms of service for a residential account,
DirecTV programm ing may not be shown in commercial establishments, such as Ms. Perez’s beauty salon. For nearly two years, Ms. Perez remained a customer of DirecTV . During that time, DirecTV never indicated that she might be misusing its services. The
first time Ms. P erez learned that there might be a problem wa s when she received a
call from DirecTV ’ s lawyer. The lawyer accused her of violating DirecTV’s terms
of service and the federal Communications Act by displaying DirecTV programming in her beauty salon without authorization

. The lawyer declared that
Ms. Perez ow ed DirecTV $75,000 in penalties and threatened to sue her in federal
court if she refused to pay. A fter a month of increasingly harassing calls, the 

# FILED

OCT 19 2018 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL SPage 2 of 3 lawyer offered to settle the matter with Ms. Perez if she agreed to pay $5,000. Fearing the prospect of a federal lawsuit, and without the benefit of legal counsel of her own, Ms. Perez accepted the settlement offer.
W hen Ms. Perez decided to file this class

- action lawsuit to seek redress for
this extortionate behavior, DirecTV invoked the arbitration provision in its customer agreement to k eep the dispute out of court. Conveniently, DirecTV ’s

ar bitration provision includes an exception that leave s the company free to sue Ms. Perez in court for any “theft of service” cla ims it might have against her. Bu t it requires Ms. Perez to arbitrate on an individual basis virtually any claim she might have aga inst DirecTV

. As DirecTV well knows, precluding c ustomers like Ms.
Perez from pursuing relief on a class

- wide basis means that few will seek redress
for the kind of wrongdoing alleged here

. It’ s simply too expensive for an
individual consumer to hire a lawyer in such a dispute , even when the dispute wil l be resolved through the strea mlined process of arbitration.
This heads

- I

- win, tails

- you
- lose arbitration regime strikes me as the height
of unfairness. I nonetheless fe el compelled to dissent because, in my view , current
law allows DirecTV to enforce its arbitration provision against Ms. Perez. First, a valid arbitration agreement exists in this case. Ms. Perez signed a document stating in plain terms that she agreed to arbitrate all disputes with DirecTV in accordance with the terms of the separate customer agreement available onPage 3 of 3
DirecTV ’s website. See Shaw v. Regents of University of California , 67 Cal. Rptr. 2d 850, 855

– 56 ( Ct. App. 1997)

. Second, Ms. Perez’s claims are covered by the arbitration agreement. Although t he scope of the exception fo r any dispute

“ involving ” a violation of the Communications Act or theft

- of

- service prohibitions is ambiguous, and admittedly allows for the broad rea di ng my colleagues have adopted, ambiguities of this sort must be resolved in favor of arbitration. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp. , 460 U.S. 1,
24

– 25 (1983) ; Erickson v. Aetna Health Plans of California, Inc. , 84 Cal. Rptr. 2d
76 , 81

– 84 ( Ct. App. 1999)

. Finally , even though the arbitration provision is unfairly one

- sided

— i t allows the claims Direc TV is likely to bring against its customers to be resolved in court, while requiring the claims DirecTV ’s customers are likely to bring against the company to be resolved through arbitration

— that feature does not render the provisi on invalid. California law dictates that the one

s ided aspect of the provision may be severed, leaving the underlying agreement to
arbitrate enforceable. See Poublon v. C.H. Robinson Co. , 846 F.3d 1251, 1272

– 74 (9th Cir. 2017). I take no pleasure in voting to reverse the denial of DirecTV’s motion t o compel arbitration. But in my view the confluence of California contract law and
Federal Arbitration Act jurisprudence compel s that unfortunate result

.