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This case was last updated from Los Angeles County Superior Courts on 03/01/2021 at 05:58:00 (UTC).

ALEX GHASSEMIEH VS FERRARI NORTH AMERICA, INC., ET AL.

Case Summary

On 01/23/2020 ALEX GHASSEMIEH filed an Other lawsuit against FERRARI NORTH AMERICA, INC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2973

  • Filing Date:

    01/23/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

GHASSEMIEH ALEX

Defendants

FERRARI BEVERLY HILLS

FERRARI NORTH AMERICA INC.

FERRARI WESTLAKE DOE 1

Attorney/Law Firm Details

Plaintiff Attorney

YASHAR NADIA

Defendant Attorneys

PERSKY JENNIFER

MOHRMAN HANNAH

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL ARBITRATION (MOVING PAPERS FILED ...)

9/17/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL ARBITRATION (MOVING PAPERS FILED ...)

Reply - REPLY FERRARI WESTLAKE'S REPLY TO MOTION TO COMPEL ARBITRATION

9/10/2020: Reply - REPLY FERRARI WESTLAKE'S REPLY TO MOTION TO COMPEL ARBITRATION

Ex Parte Application - EX PARTE APPLICATION FNA'S EX PARTE APPLICATION RE CONTINUANCE OF PLTF'S MTC

9/3/2020: Ex Parte Application - EX PARTE APPLICATION FNA'S EX PARTE APPLICATION RE CONTINUANCE OF PLTF'S MTC

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO MOTION TO COMPEL ARBITRATION

9/8/2020: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO MOTION TO COMPEL ARBITRATION

Notice - NOTICE OF NEW HEARING DATE OF MOTION TO COMPEL ARBITRATION

7/30/2020: Notice - NOTICE OF NEW HEARING DATE OF MOTION TO COMPEL ARBITRATION

Notice - NOTICE OF JOINDER AND CONSENT

7/30/2020: Notice - NOTICE OF JOINDER AND CONSENT

Declaration - DECLARATION OF JAMES BUSH

6/29/2020: Declaration - DECLARATION OF JAMES BUSH

Motion to Compel Arbitration

6/29/2020: Motion to Compel Arbitration

Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGMENT OF FEDERAL AUTHORITIES IN SUPPORT OF DEFENDANT CHI PEGA, LLC DBA FERRARI WESTLAKES MOTION TO COMPEL ARBITRATION AND STAY ACTION

7/6/2020: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGMENT OF FEDERAL AUTHORITIES IN SUPPORT OF DEFENDANT CHI PEGA, LLC DBA FERRARI WESTLAKES MOTION TO COMPEL ARBITRATION AND STAY ACTION

Minute Order - MINUTE ORDER (COURT ORDER)

7/13/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Case Management Statement

6/17/2020: Case Management Statement

Case Management Statement

6/24/2020: Case Management Statement

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

5/26/2020: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Request for Dismissal

4/27/2020: Request for Dismissal

Answer

2/27/2020: Answer

Summons - SUMMONS ON COMPLAINT

1/23/2020: Summons - SUMMONS ON COMPLAINT

Notice of Case Assignment - Unlimited Civil Case

1/23/2020: Notice of Case Assignment - Unlimited Civil Case

Complaint

1/23/2020: Complaint

20 More Documents Available

 

Docket Entries

  • 05/17/2021
  • Hearing05/17/2021 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Post-Arbitration Status Conference

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  • 10/14/2020
  • Docketat 08:30 AM in Department 24; Case Management Conference - Not Held - Advanced and Vacated

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  • 10/14/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Compel Discovery (not "Further Discovery") ((Filed 5/26/20)) - Not Held - Advanced and Vacated

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  • 10/14/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Compel Discovery (not "Further Discovery") ((Filed 5/26/20)) - Not Held - Advanced and Vacated

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  • 10/14/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Compel Discovery (not "Further Discovery") ((Filed 5/26/20)) - Not Held - Advanced and Vacated

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  • 09/23/2020
  • Docketat 10:30 AM in Department 24; Hearing on Motion to Compel Discovery (not "Further Discovery") ((Filed 5/26/20)) - Not Held - Continued - Party's Motion

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  • 09/23/2020
  • Docketat 10:30 AM in Department 24; Case Management Conference - Not Held - Continued - Party's Motion

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  • 09/23/2020
  • Docketat 10:30 AM in Department 24; Hearing on Motion to Compel Discovery (not "Further Discovery") ((Filed 5/26/20)) - Not Held - Continued - Party's Motion

    Read MoreRead Less
  • 09/23/2020
  • Docketat 10:30 AM in Department 24; Hearing on Motion to Compel Discovery (not "Further Discovery") ((Filed 5/26/20)) - Not Held - Continued - Party's Motion

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  • 09/17/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Compel Arbitration ((Moving Papers Filed on 6/29/20)) - Held - Motion Granted

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26 More Docket Entries
  • 05/26/2020
  • DocketMotion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by Alex Ghassemieh (Plaintiff)

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  • 04/27/2020
  • DocketRequest for Dismissal; Filed by Alex Ghassemieh (Plaintiff)

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  • 04/22/2020
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Alex Ghassemieh (Plaintiff)

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  • 03/30/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/27/2020
  • DocketAnswer; Filed by Passione Rossa, LLC dba Ferrari Beverly Hills Erroneously Sued As Ferrari Beverly Hills (Defendant)

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  • 02/27/2020
  • DocketAnswer; Filed by Ferrari North America, Inc. (Defendant)

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  • 01/23/2020
  • DocketComplaint; Filed by Alex Ghassemieh (Plaintiff)

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  • 01/23/2020
  • DocketSummons (on Complaint); Filed by Alex Ghassemieh (Plaintiff)

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  • 01/23/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 01/23/2020
  • DocketCivil Case Cover Sheet; Filed by Alex Ghassemieh (Plaintiff)

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Tentative Rulings

Case Number: 20STCV02973    Hearing Date: September 17, 2020    Dept: 24

Defendant Chi Pega LLC (dba Ferrari Westlake) motion to compel arbitration is GRANTED. Defendant Ferrari North America Inc.’s joinder is GRANTED.

On January 23, 2020, Plaintiff Alex Ghassemieh (“Plaintiff”) filed the instant lemon law action against Defendants Ferrari North America Inc. (“FNA”); Ferrari Beverly Hills (“FBH”); and Ferrari Westlake (“FW”). The Complaint arises out of the sale of a 2017 Ferrari 488 GTB (the “vehicle”). Plaintiff alleges that after the purchase, Defendants failed to comply with their Song-Beverly obligations. The Complaint alleges five causes of action for various Song-Beverly violations.

On February 27, 2020, FNA and FBH answered. On April 27, 2020, Plaintiff dismissed FBH. On June 1, 2020, Chi Pega LLC (dba FW) answered.

On June 29, 2020, FW filed the instant motion to compel arbitration. On Jul 30, 2020, FNA filed a joinder to the motion and consent to arbitrate. On September 8, 2020, Plaintiff filed an opposition. On September 10, 2020, FW filed a reply.

Legal Standard

 

Under California and federal law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) Accordingly, whether an agreement is governed by the California Arbitration Act (“CAA”) or the Federal Arbitration Act (“FAA”), courts resolve doubts about an arbitration agreement’s scope in favor of arbitration. (Moncharsh, at 9; Comedy Club, Inc. v. Improv West Assocs. (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 [“California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general [citation]”].) “[U]nder both the FAA and California law, ‘arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” (Higgins v. Sup. Ct. (2006) 140 Cal.App.4th 1238, 1247.)

“Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration ‘if the court determines that an agreement to arbitrate the controversy exists.’” (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59, quoting CCP, § 1281.2.) Accordingly, “when presented with a petition to compel arbitration, the court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” (Ibid.) A petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Id. at 71.) As with any other specific performance claim, “a party seeking to enforce an arbitration agreement must show the agreement’s terms are sufficiently definite to enable the court to know what it is to enforce.” (Ibid. [internal citations omitted].) “Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed.” (Ibid.) An arbitration agreement “must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) The language of the contract governs its interpretation if it is clear and explicit. (Civ. Code, § 1368.) If uncertainty exists, “the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” (Civ. Code, § 1654.)

The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) It would then be plaintiff’s burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (See Ibid.) “In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Ibid.)

 

Untimely and Oversized Opposition

 

The Court notes that Plaintiff’s opposition was untimely. The opposition was due on September 4, 2020, nine court days prior to the hearing on September 17, 2020. (CCP § 1005(b).) Plaintiff filed the opposition on September 8, 2020, leaving less than two days to reply. Further, Plaintiff’s memorandum in opposition is 18 pages long (excluding the caption page). This violates the 15 page limit set by CRC, Rule 3.1113(d). The Court has discretion to ignore the opposition for either reason. The Court will consider the untimely, oversized memorandum up to the fifteenth page.

Existence of a Valid Arbitration Agreement

As with any contract, mutual assent or consent is necessary for the formation of a valid arbitration agreement. (Civ. Code, §§ 1550, 1565.) “Consent is not mutual, unless the parties all agree upon the same thing in the same sense.” (Civ. Code, § 1580.) The moving party bears the initial burden of showing the existence of an agreement to arbitrate by a preponderance of the evidence. (Mitri v. Arnel Mgmt. Co. (2007) 157 Cal.App.4th 1164, 1169 (Mitri) [“Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.”].)

Here, FW provides the following facts. On May 5, 2017 Plaintiff purchased a the vehicle from FW pursuant to a sales contract (the “RISC”). (Bush Decl., ¶¶ 2, 5, Ex. A.) Plaintiff expressly and in writing indicated her agreement with the arbitration provision set forth on the RISC. (Bush Decl., ¶¶ 2-5.) The RISC conspicuously states, in relevant part:

ARBITRATION CLAUSE

PLEASE REVIEW – IMPORTANT – AFFECTS YOUR LEGAL RIGHTS

1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.

[…]

Any claim or dispute whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Clause, and the arbitrability of the claim or dispute), between you and us and our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. If federal law provides that a claim or dispute is not subject to binding arbitration, this Arbitration Clause shall not apply to such claim or dispute. Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a class action. You may choose one of the following arbitration organization and its applicable rules; the American Arbitration Association, 1633 Broadway, 10th Floor, New York, NY 10019 (www.adr.org), or any other organization that you may choose subject to our approval. You may get a copy of the rules of an arbitration organization by contacting the organization or visiting its website. … The arbitrator shall apply governing substantive law and the applicable statute of limitations. … Any arbitration under this Arbitration Clause Provision shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.…

Plaintiff does not dispute that he signed the RISC, that the claims against FW are a part of the agreement, or any other argument that would affect the agreement to arbitrate between FW and Plaintiff. Plaintiff’s opposition solely focuses on the arbitrability of the claims against FNA, and waiver. Those issues will be examined below. The Court finds that FW has met its burden to show the existence of a valid agreement between Plaintiff and itself that covers the statutory claims regarding the merchantability of the vehicle sold. Therefore, Plaintiff now has the burden to demonstrate any fact necessary to oppose.

Waiver

Plaintiff principally attacks FW’s motion on the grounds of waiver.

“Whether a party to an arbitration agreement has waived the right to arbitrate is a question of fact, and a trial court’s determination on that matter will not be disturbed on appeal if supported by substantial evidence. . . . Since arbitration is a strongly favored means of resolving disputes, courts must ‘closely scrutinize any claims of waiver.’” (Sobremonte v. Superior Court (1998) 61 Cal. App. 4th 980, 991 [citations omitted].) “No single test delineates the nature of the conduct that will constitute a waiver of arbitration.” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal. 4th 1187, 1195.) “In determining waiver, a court can consider (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party.” (Sobremonte, supra, 61 Cal. App. 4th at 992 [citation omitted].)

Here, there is plainly no cause for waiver. Plaintiff confusingly argues that several factors weigh towards waiver. Plaintiff argues that Defendants have undertook a “years-in-the-making" process of establishing separate judicial proceedings to litigate and utilize resources. Plaintiff argues that “these cases were actually fled [sic] years ago” and Defendant “notified the opposing party of an intent to arbitrate a few weeks ago[.]” Plaintiff also states that Defendant prepared one case (“Ralph”) all the way to trial and delayed two or three cases nearly five years (“Larson, Jordan, Goyzueta”). Plaintiff also argues that Defendant engaged in discovery, motion practice, coordination proceedings, depositions, etc.

Almost every point Plaintiff makes is verifiably untrue. This case was filed in January 2020, and thus was not filed “years” ago. FW waited approximately a month between answering at the state of June and moving at the end of June. FW and FNA both asserted arbitration as an affirmative defense in their respective answers. Thus, there really was not even a substantial delay. Plaintiff does not explain what all these case names are and their relation to this case. There has been no motion practice or coordination proceedings. The state of discovery is unclear and unsupported by evidence. Plaintiff also baldly asserts prejudice but provides no basis for the prejudice given the contradictions above.

In any event, Plaintiff has adduced no evidence in support of the opposition, and thus fails to demonstrate by a preponderance of the evidence that waiver applies. Moreover, the objectively verifiable facts, such as the length of delay or the use of judicial mechanisms, do not indicate waiver.

Third Party Enforcement

FNA also requests to join the arbitration as a third party. Certain persons who did not sign the agreement to arbitrate may be entitled to enforce it and prosecute the arbitration in their own names. (Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 772.) There are six theories identified by caselaw which may bind a non-signatory to arbitrate: (a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513.)

Defendants assert that FNA should be brought, voluntarily, into the arbitration as a non-signatory based on agency, equitable estoppel, and third party beneficiary theories. Plaintiff focuses most of his energy on attacking the arbitrability of the claims as to FNA, as if FNA brought the motion by itself. Plaintiff’s arguments mostly assume that the motion was being brought solely by FNA as a non-signatory. However, the true posture is that FW brought the motion, and both Defendants seek to join FNA into the arbitration proceedings.

To clarify, this issue will not be dispositive on arbitration itself. So long as there is a valid arbitration agreement between FW and Plaintiff, and there is no other reason to deny that motion, then those claims will be arbitrated either way and this case will be stayed. FNA’s inclusion must be independently examined. This issue will only resolve whether FNA may join in FW/Plaintiff's arbitration as a non-signatory, and not the arbitrability of the claims between FW and Plaintiff.

This also renders the issue distinguishable from Plaintiff’s cited cases discussing whether a non-signatory would be forced to arbitrate. (See Opp. pp. 3-7; See e.g. Harris v. Superior Court (1986) 188 Cal.App.3d 475, 478 [“It is well established that a nonsignatory beneficiary of an arbitration clause is entitled to require arbitration... Whether a nonsignatory beneficiary can be forced to arbitrate is a closer question.”].) Here, Plaintiff is being compelled to arbitration as a signatory. FNA, as a third party, consents to arbitration.

California courts recognize that a nonsignatory sued as an agent of a signatory may enforce an arbitration agreement. (Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1284 [individual directors, who were not signatories to arbitration agreement but were sued as alter egos/agents of corporation, were entitled to compel arbitration of breach of contract claim].) If the arbitration clause encompasses claims against a contracting party's employees or associates, those persons may compel arbitration of claims against them. (Michaelis v. Schori (1993) 20 Cal.App.4th 133.) Alleged agents of a party to an arbitration agreement can compel arbitration so long as 1) the alleged wrongful acts of the agents relate to or are done in their capacities as agents; and 2) the claims against the alleged agents arise out of or relate to the contract containing the arbitration clause. (See Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 788, [a non-signatory may enforce arbitration agreement “when a plaintiff alleges a defendant acted as an agent of a party to an arbitration agreement…”]; see also Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 418 [agents of Rams could compel arbitration of players’ claims against them individually].)

Moreover, when claims against another party rely upon, make reference to, or are intertwined with claims against another that are covered by an arbitration agreement, the courts may compel all parties, including resistant non-signatories, to arbitration. (See Harris, supra, 188 Cal.App.3d at 478.) Third party beneficiaries may be entitled to enforce arbitration clauses in contracts entered into on their behalf, even if not named in the agreement. (Macaulay v. Norlander (1992) 12 Cal.App.4th 1, 7-8; see Jones v. Jacobson (2011) 195 Cal.App.4th 1, 22 [nonsignatories seeking to compel arbitration as third-party beneficiaries must prove that they are in fact third party beneficiaries of the agreement that provides for arbitration].)

The Court finds Mance v. Mercedez-Benz USA (2012) 901 F. Supp. 2d 1147 persuasive on this point. Mance involved similar claims under the Song-Beverly Act by the buyer against the manufacturer, and a similar RISC-contract. Mance reasoned that the manufacturer’s duty to comply with its warranty arose only when plaintiff bought the car; had plaintiff not signed the contract, he would not have received the written warranty from the manufacturer. (Id. at 1115-1116.) Mance even noted that if plaintiffs also brought claims against the signatory dealer, such as FW, there would have been further reason to grant the motion to compel those claims, because such claims would have been “inherently bound upon” the claims against the manufacturer. (Id. at 1157.)

Likewise, Plaintiff’s claim for breach of warranty is premised on and arises out of the RISC. Plaintiff’s complaint makes the same identical claims against “Defendant” to include both FNA and Ferrari Westlake as Does 1 (Compl., ¶ 2.) Plaintiff’s alleges that “[d]uring the warranty period, the Vehicle contained or developed defects and said defects substantially impair the use. value, or safety of the Vehicle. Defendant and its representatives in this stale have been unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of opportunities at the time of purchase, the Subject Vehicle contained or developed the defects set forth in the Complaint.” (Compl., ¶ 5.) Plaintiff seeks remedies from the entire contract price, pursuant to the RISC.

The RISC includes language indicating the intent to bind third parties to the arbitration agreement, such as FNA. The RISC states that arbitration includes all claims between the Plaintiff and FW and their agents, which arise from the purchase of the vehicle, including “any such relationship with third parties who do not sign this contract[.]” This demonstrates a clear intent to bind third parties such as FNA, who have a warranty relationship with Plaintiff arising from the sale of the vehicle.

Although not a party to the contract, FNA is a party to this action and has consented to being included as a party to the arbitration. The Court would also note that allowing FNA into the arbitration would ultimately be in the interest of justice, as it would allow for a uniform resolution to the controversy that would otherwise be delayed if FNA were excluded. Their claims against FNA are intimately founded in and intertwined with the RISC, since the attendant warranties of the sale form the basis of the claims. The claims involve the same facts, the same vehicle and the same implied warranty as to both parties, who are also alleged to be agents and alter egos of one another.

Accordingly, the Court finds that the arbitration agreement would apply to the claims against FNA as well as FW.

Conclusion

Defendants meets their burden to demonstrate the existence of an arbitration agreement between the parties that covers Plaintiff’s claims. Plaintiff, in turn, fails to demonstrate that the agreement should not be enforced. Defendants’ motions are therefore GRANTED and the Court orders Plaintiff’s claims to arbitration, as discussed above. The entire action is STAYED pending the completion of the arbitration. (CCP § 1281.4.)

Moving party is ordered to give notice.

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