hill!...because vivint did not cease any collection efforts, plaintiff was forced 6 26. 7 8 27. 9 to...

Alex Asil Mashiri, Esq. (SBN 283798) MASHIRI LAW FIRMA Professional Corporation 11251 Rancho Carmel Drive #500694 San Diego, CA 92150 Phone: (858) 348-4938 Fax:(858)348-4939

ELECTRONICALLY FILEDSuperior Court of California,

County of San Diego04/03/2018 at 10:23:45 mClerk of the Superior Court

By 'ufcleria Contreras .Deputy Clerk

2

3

4

5

6 Tamim Jami, Esq. (SBN 311351)[email protected] JAMI LAW FIRM P.C.3525 Del Mar Heights Rd #941 San Diego, CA 92130 Telephone: (858) 284-0248 Fax:(858)284-0977

7

8

9

10

11

Attorneys for Plaintiff:GERTRUDE I. HEWAPATHIRANA

12I

§i 13I 111 s s

SI IIIsags ^ M'sIlSS

> -f cn

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO

14

15) Case No. 37-2018-00016438-CU-MC-CTLGERTRUDE I. HE WAP ATHIRAN A

16< 7)

Plaintiff, )17) COMPLAINT FOR DAMAGES

18))19 VS.

)20) [DEMAND FOR JURY TRIAL])21

)VIVINT SOLAR, INC. and DOES 1 through 20,

22))23

)Defendant.24))25

)26

27

28

- 1 -COMPLAINT FOR DAMAGES

Plaintiff GERTRUDE I. HEWAPATHIRANA alleges as follows:

INTRODUCTION1

2

1. Plaintiff GERTRUDE I. HEWAPATHIRANA (hereinafter referred to as

“Plaintiff’), brings this lawsuit against Defendant Vivint Solar, Inc. (hereinafter

referred to as “Vivint” or “Defendant”) for violations of the California Identity Theft

Act (“CITA”) and the Rosenthal Fair Debt Collection Practices Act (“Rosenthal

FDCPA”).

3

4

5

6

7

Plaintiff seeks actual damages, statutory damages, penalties, attorneys’

fees and costs, and other relief the Court deems appropriate.

PARTIES

Plaintiff is a “consumer” as the term is defined by 15 U.S.C. section

1681a(c), 15 U.S.C. section 1692a(3), and California Civil Code section 1785.3(b).

Plaintiff is a “debtor” as the term is defined by California Civil Code section

1788.2(h) and a “victim of identity theft” as that term is defined by California Civil

Code section 1798.92(d).

2.8

9

10

3.11

12I

§i 13

Hill!3 (3g°J sSBigidg3*2"

14

15

Plaintiff is informed and believes, and thereupon alleges, that Vivint is,

and at all times mentioned herein was, conducting and engaging in business in the

County of San Diego, California.

Plaintiff is informed and believes, and thereupon alleges that Vivint is a

claimant as the term defined by Civil Code section 1798.92(a).

Plaintiff is informed and believes, and thereupon alleges that Defendant

Vivint is a debt collector as the term is defined by Civil Code section 1788.2(c).

Defendant Vivint attempted to collect a consumer debt as the term is

defined by the FDCPA and Rosenthal FDCPA.

Plaintiff is ignorant of the true names and capacities of those defendants

sued herein as DOES 1 through 20, and therefore sues those defendants by such

fictitious names. Plaintiff will amend this complaint to allege their true names and

capacities when such names and responsibilities are ascertained. Plaintiff is informed

4.16< a17

18

5.19

20

6.21

22

7.23

24

8.25

26

27

28

-2-COMPLAINT FOR DAMAGES

and believes and on that basis alleges that each of the fictitiously named defendant is

responsible in some manner for the occurrences alleged in this complaint, and that

Plaintiffs claims alleged in this complaint were proximately caused by such

defendants.

i

2

3

4

Plaintiff is informed and believes and thereupon alleges that at all times

herein mentioned each of the defendant was the agent, servant, employee, or partner

of each of the remaining defendants and, in committing the acts and omissions

hereinafter alleged, was acting within the course and scope of such agency,

employment, partnership, or other business relationship, and were each responsible

for the acts and omissions alleged in this complaint.

JURISDICTION

Pursuant to Article VI, §10 of the California Constitution, subject matter

jurisdiction is proper in the Superior Court of California, County of San Diego, State

of California because Plaintiff alleges claims arising under California law.

This Court has jurisdiction over the Defendant because each is an

association, corporation, business entity, or individual that conducts substantial

business in the State of California, County of San Diego.

Pursuant to § 395 of the California Code of Civil Procedure, venue is

proper in the Superior Court of California for the County of San Diego because this is

where Defendant does business.

9.5

6

7

8

9

10

11

10.121

§1 13Se-S.*

S<3|3SS 14-ipltsi 2 5;;* 15s I 'i 5 P 2> > yj

11.

§ 16< s

17

12.18

19

20

RELEVANT FACTS21

Beginning sometime in December 2016, an unknown male, claiming to

work for SDG&E, approached Plaintiffs residence to market solar panels.

This unknown male presented himself as Mark Valdez (“Valdez”) and

told Plaintiff she should consider solar panels. From December 2016 through January

2017, Valdez approached Plaintiff on several occasions to market the solar panels.

Each time, Plaintiff insisted to Valdez that she was not interested in the

solar panels as she could not afford the cost no matter how beneficial the product was.

13.22

23

14.24

25

26

15.27

28


Plaintiff further indicated that she already had solar panels on her roof and was

satisfied with the product.1

2

16. In response, Valdez represented that he works for SDG&E and that

Plaintiff qualified for a government program. Valdez represented to Plaintiff that

through this government program Plaintiff was qualified to receive free solar panels,

would not incur any costs, and would even profit from the new solar panels.

Plaintiff was led to believe Valdez worked for SDG&E and was only

working with Vivint to install the solar panels.

The solar panels were ultimately installed on Plaintiffs roof.

Plaintiff eventually realized that Vivint was charging her money for its

services even though she was told that services are free.

On or about September 6, 2017, Plaintiff emailed Vivint contesting the

fact that Vivint was charging her money for services she never signed up for.

Plaintiff informed Vivint that she was deceived and that Vivint engaged in fraudulent

activities. Plaintiff requested that Vivint remove the solar panels from her roof.

While a Vivint representative with the name of Jordan Hill reached out

to Plaintiff, informing her that Vivint would conduct an investigation, nothing was

done.

3

4

5

6

17.7

8

18.9

19.10

11

20.12I

13sum?Sal?ss 14SlSiii iliieS

w 2? tt)Ul 21.16< £17

18

After Plaintiffs repeated requests, Vivint provided Plaintiff with the

purported agreement, entitled “Residential Solar Power Purchase Agreement”

(“Purchase Agreement”), which Vivint claims Plaintiff signed.

After reviewing the Purchase Agreement, Plaintiff immediately notified

Vivint, via email on or about November 8, 2017, that she never signed the Purchase

Agreement and that the signature on the Purchase Agreement appeared to be forged.

Plaintiff once again requested that Vivint remove the solar panels from her roof.

Plaintiff denies ever signing the Purchase Agreement and additionally

claims the signature on the agreement is not hers, does not resemble her signature,

and appears forged.

22.19

20

21

23.22

23

24

25

24.26

27

28


Plaintiff also does not recognize, nor ever dealt with the Vivint

representative who signed the purported agreement under the name of “Ty Williams.”

Plaintiff does not recall ever meeting with any SDG&E or Vivint representative on

January 26, 2017, the date the Purchase Agreement was allegedly signed by all

parties.

25.i

2

3

4

5

Despite informing Vivint that Plaintiff did not sign the Purchase

Agreement, Vivint continued its collection efforts.

Because Vivint did not cease any collection efforts, Plaintiff was forced

26.6

7

27.8

to hire an attorney.9

In an attempt to resolve the matter with Vivint, on January 10, 2018,

Plaintiff completed a Federal Trade Commission Identity Theft Victim’s Complaint

and Affidavit (“Affidavit”), and filed a police report (“Police Report) which included

copies of the questionable signature.

On January 20, 2018, Plaintiffs attorney mailed, via certified mail, a

letter including the corresponding Affidavit and Police Report to Vivint, informing

Vivint that Plaintiff was an identity theft victim. Plaintiffs letter also demanded that

Vivint investigate the dispute and notify Plaintiffs attorney immediately regarding

the outcome of the investigation.

Vivint received Plaintiffs written notice on or about January 26, 2018.

Vivint has yet provide a response to Plaintiffs dispute.

Vivint has yet to cease any of its collection efforts, and has continued its

collection efforts in a manner that has caused Plaintiff stress and anxiety.

28.10

n

12I

i! 13^ 2 od ^ *>ESalsa* 14 slimifpei „

29.

< jo

17

18

30.19

31.20

32.21

22

FIRST CAUSE OF ACTION23(Violations of CITA against all Defendants)

24

Plaintiff re-alleges paragraphs 1 through 32, above, as if fully set forth33.25

herein.26

Plaintiff is a victim of identity theft under California Civil Code section34.27

1798.92(d).28


Plaintiff sent written notice that he is a victim of identity theft, as

required by Civil Code section 1798.93, to vivint on January 20, 2018, via certified

This notice included a copy of the Identity Theft Victim’s Complaint and

Affidavit as well as a copy of the Police Report. Vivint received Plaintiffs written

notice on or about January 26, 2018.

The written notice was provided to Vivint at least thirty days prior to

35.l

2

mail.3

4

5

36.6

filing this action.

37. After receiving Plaintiffs written notice which included a copy of the

Identity Theft Victim’s Complaint and Affidavit as well as a copy of the Police

Report, Vivint failed to diligently investigate Plaintiffs identity theft claim.

38. Despite Plaintiffs January 20, 2018 written notice, informing Vivint that

she was a victim of identity theft, Vivint continued to pursue its claim against the

Plaintiff by attempting to collect on the account. For example, Vivint continues to

send collection notices, asking for money and threatening to take legal actions.

39. Plaintiff brings this action for actual damages, and declaratory and

injunctive relief, pursuant to Civil Code section 1798.93, based on the fact that

Plaintiff was the victim of identity theft.

40. Pursuant to Civil Code section 1798.93(c)(1), Plaintiff is entitled to a

declaration that she is not obligated on any claim of Vivint for money or property.


declaration that any security interest or other interest that Vivint may have is void

and/or unenforceable, including a property lien.

42. Pursuant to Civil Code section 1798.93(c)(3), Plaintiff is entitled to an

injunction restraining Vivint from collecting or attempting to collect from her on its

alleged claims, from enforcing or attempting to enforce any security interest or other

interest in connection with Vivint’s claims, and from enforcing or executing on any

judgment against Plaintiff on such claims.


7

8

9

10

11

12I

13Sl-S-s

Ssgssa 14 slim elisas* isiipf£ 16< £

17

18

19

20

21

22

23

24

25

26

27

28


civil penalty of up to $30,000.00 against Vivint.

As a result, Plaintiff has suffered actual damages and harm resulting

from Defendants’ actions as heretofore alleged, including but not limited to worry,

emotional distress, anxiety, humiliation, and out-of-pocket expenses the exact amount

of which is to be proven at trial.

The forgoing act(s) by Defendant were willful and knowing violations of

Civil Code section 1798.93.

Plaintiff has incurred reasonable and necessary costs and attorney fees in

the preparation and prosecution of this action and seeks reimbursement of his

attorney’s fees and costs pursuant to California Civil Code section 1798.93(c)(5).

44.2

3

4

5

45.6

7

46.8

9

10

SECOND CAUSE OF ACTIONn(Violation of Rosenthal FDCPA against all Defendants)

12I

Plaintiff re-alleges paragraphs 1 through 46, above, as if fully set forth47.gl•S at 13

^ 2 ci S „ o,

%sim 143 i <■> u ® » . -3f§5j* 15

herein.

48. Vivint violated Civil Code section 1788.18 by continuing to engage in

collection activities after Plaintiff provided it with documents pursuant to California

Civil Code sections 1788.18(a) and 1788.18(b).

49. Vivint failed to make a determination in good faith that Plaintiff was a

victim of identity theft and that he was not responsible for the incurred debt after

Plaintiff provided Vivint with an Identity Theft Victim’s Complaint and Affidavit and

police report. Vivint failed to notify Plaintiff in writing of its determination that

Plaintiff failed to establish that he was a victim of identity theft or that he was not

responsible for the specific debt in question. Instead, Vivint continued to attempt to

collect on the account, knowing that Plaintiff was a victim of identity theft.

50. As a result of each and every violation of the Rosenthal FDCPA,

Plaintiff has suffered actual damages and harm resulting from Vivint’s actions or

inactions as heretofore alleged, including but not limited to worry, emotional distress,

HIt/j 16

17

18

19

20

21

22

23

24

25

26

27

28

- 7-COMPLAINT FOR DAMAGES

anxiety, humiliation, and out-of-pocket expenses the exact amount of which is to be

proven at trial.2

As a result of each and every violation of the Rosenthal FDCPA,

Plaintiff is entitled to actual damages pursuant to California Civil Code section

1788.30(a); statutory damages pursuant to California Civil Code section 1788.17;

statutory damages for a knowing or willful violation pursuant to California Civil Code

section 1788.30(b); and reasonable attorneys’ fees and costs pursuant to California

Civil Code section 1788.30(c).

PRAYER FOR DAMAGES AND OTHER REMEDIES

51.3

4

5

6

7

8

9

1. For actual damages;

2. For statutory damages;

3. For attorneys’fees;

4. For injunctive relief;

5. For declaratory relief;

6. For costs of suit herein incurred;

7. For interest according to law; and

8. For other and further relief as the court may deem proper.

MASHIRI LAW FIRMA ProfessionafCjorporation

10

n

12i

s1 1 3 s - sjtISsii alpllssSSjii

s*i"

13

14

15

16< sl

17

DATED: April 3, 201818

19

By:20Alex Asil MashiriAttorney for PlaintiffGERTRUDE I. HEWAPATMRANA

21

22

23

24

25

26

27

28


CM-010

MASHIR1 LAW FIRM, A Professional Corporation 11251 Rancho Carmel Drive # 500694 San Diego, CA 92150

telephone no. 858-348-4938 attorney for (Norm) GERTRUDE I. HEWAPATHIRANA

KM COURT USB ONLY

ELECTRONICALLY FILEDSuperior Court of California,

County of San Diego04/03/2018 at 10:23:45 AMClerk of the Superior Court

By \£leria Contreras .Deputy Clerk

fax no 858-348-4939

SUPERIOR COURT OF CALIFORNIA, COUNTY OF San DiegOstreet address 330 w Broadway majungaddress 330 W Broadway

San Diego. CA 92101 Central Division

CfTY AND ZIP CODE

DRANCH NAME

CASE NAME:

HEWAPATHIRANA v, VIVINT SOLAR. INC, et al.CIVIL CASE COVER SHEET

1 I Limited (Amount demanded is $25,000 or less)

CAS6 NUMBERComplex Case Designation I 1 Counter I I Joinder

1 / 1 Unlimited (Amount demanded exceeds $25,000)

37-2018-00016438- C U-MC- CTL

JUDGE-Filed with first appearance by defendant (Cal. Rules of Court, rule 3.402)

Judge Eddie C SturgeonD£PT

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:

ContractAuto Tort Provisionally Complex Civil Litigation Breach of contract/warranty (06) (Cal. Rules of Court, rules 3.400—3.403)

I I Antitrust/Trade regulation (03)LJ Construction defect (10) f. 1 Mass tort (40)1 I Securities litigation (28)

] Environmcntol/Toxic tort (30)

I I Insurance coverage claims arising from the above listed provisionally complex case types (41)

Auto (22)Uninsured motonst (46)

Other PI/PD/WD (Personal Injury/Property DamagciWrongful Death) Tort 1 I Asbestos (04)I I Product liability (24)

1 Medical malpractice (45)□ Other PI/PD.WD (23)Non-PI/PO/WD (Other) Tort

Business tort/unfair business practice (07) Civil rights (08)Defamation (13)Fraud (18)Intellectual property (19)Professional negligence (25)Other non-Pl/PD/WD tort (35)

EmploymentI I Wrongful termination (36)

~~1 Other employment (15)________________

__J Rule 3.740 collections (09) __ Other collections (09)—I Insurance coverage (18) __| Othe r contract (37)Real PropertyI I Eminent domain/inverse

condemnation (14)LJ Wronglul eviction (33)I I Other real property (28) Enforcement of Judgment

Unlawful Detainer LH3 Enforcement of judgment (20)

□ Commercial (31) Miscellaneous Civil Complaint----- 1 Residential (32) I I RICO (27)

I ...I Drugs (38) I / I Other complaint (not specified above) (42)

Judicial Review Miscellaneous Civil Petition\=\ Asso! forfeiture (05) I I Partnership and corporate governance (21)LJ Petition re: arbitration award (11) | | other petition (not specified above) (43)I I Writ of mandate (02)

_______________ __________ ____________________ 1___ ] Other judicial review (39) ______________________________________2 This case 1 1 is LJ 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

a. I 1 Large number of separately represented parties d. 1 I Large number of witnessesb l__ I Extensive motion practice raising difficult or novel e.|___ | Coordination with related actions pending in

issues that will be time-consuming to resolve c. I 1 Substantial amount of documentary evidence

one or more courtsin other counties, states, or countries or in a federal court

f. I I Substantial postjudgment judicial supervision

3 Remedies sought (check all that apply): a.I / I monetary b. ( / | nonmonetary: declaratory or injunctive relief e I I punitive4 Number of causes of action (specify): 2

5 This case I 1 is 1 / I is not6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.)

a class action suit.

Date April 3,2018 Alex Asil Mashiri

(SIGNATURE^ PARTY OR ATTORNEY FOR PARTO(TYFt OR PRINT NAME)

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

under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure Id file may result in sanctions.

• File tiiis cover sheet in addition to any cover sheet required by local 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 ca6e, this cover sheet will be used for statistical purposes only.________________________ ___________________...__________ ._________________________________________________ ____________ ___ ______________ Page 1 of 2

Cat Rut** of Court, rule* 2 30. 3.220, 3.400-3.403. 3.740, Cal Standards of Judicial Administration, std. 310

wyYtf.courtinh.ca.gov

Form Adopted for Mandatory use Judicial Counc8 of California CM-0TO (Rev July 1, 2007)

CIVIL CASE COVER SHEET

hill!...because vivint did not cease any collection efforts, plaintiff was forced 6 26. 7 8 27. 9 to...

Documents