Community Memorial Hospital, Inc V. Edgar Rojod

JOHNSON, ET AL VS. PARENT, ETAL Case Number: CVCV21-0197618 This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s calendar to discuss the status of arbitration.

SIMMONS, ET AL. VS. LIBERTY MUTUAL INSURAN Case Number: CVCV21-0198289 This matter is on calendar for review for status of removal. On December 1, 2021, the Court received a “Notice of Removal of State Action.” Based on the Notice, the Court suspended its jurisdiction pursuant to 28 USC § 1446. No Status Report has been filed. An appearance is necessary on today’s calendar to provide the Court with a status of the federal action. THE PEOPLE OF THE STATE OF CALIFORNIA VS. $12,276.00

Case Number: 21CMCV00174 Hearing Date: July 16, 2024 Dept: A 21CMCV00174 Nicolas Perez v. General Motors, LLC Tuesday, July 16, 2024, at 8:30 a.m. [TENTATIVE] ORDER GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES [TENTATIVE] ORDER DENYING DEFENDANTS MOTION TO TAX COSTS I. BACKGROUND Plaintiff alleges that Defendant issued an express warranty in connection with Plaintiffs purchase of a 2019 Chevrolet Silverado. Plaintiff alleges that the vehicle developed defects in its transmission, braking, and mechanical systems which Defendant failed to remedy or repair in violation of the Song-Beverly Consumer Warranty Act (Act). On September 18, 2023, Plaintiff filed Notice of Settlement of Entire Case. Plaintiff now requests attorneys fees of $55,497.00 and additional fees of $5,000 to review Defendants opposition to this motion and to appear at the hearing. [1] II. ARGUMENTS Plaintiff argues he is entitled to attorneys fees under the Act because Defendant unreasonably forced Plaintiff to file suit and litigate the case. Defendant settled the case for $110,000, which includes damages for restitution and civil penalties. In opposition, Defendant argues this case did not present any unique issues and did not require special skill. This case is identical to the hundreds of matters litigated against Defendant. The fee request is padded, unreasonable, inefficient, and unsupported by the record. In reply, Plaintiff argues that Defendants contentions are based on an entirely arbitrary assessment of the work expended by Plaintiff to litigate this case, which arose as a result of Defendants unreasonable conduct. Other courts have affirmed that Plaintiffs counsels fees are reasonable. III. LEGAL STANDARDS A prevailing buyer in an action under the SBA shall be allowed by the court to recover the aggregate amount of costs and expenses, including attorneys fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. (Civ. Code, § 1794 subd.(d).) A prevailing buyer has the burden of showing that the fees incurred were allowable, reasonably necessary to the conduct of the litigation, and were reasonable in amount. ( Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, 405.) The reasonable hourly rate is that prevailing in the community for similar work. ( Id .) A reasonable fee can be measured by the marketplace by analyzing the quality and necessity of services and then comparing that cost with what other attorneys with similar experience and ability charge for the same services. ( Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002.) In lemon law cases, the court applies the lodestar method in calculating attorneys fees, including the use of fee multipliers where applicable. ( Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818.) The court determines a lodestar figure based on a careful compilation of the actual time spent and reasonable hourly compensation for each attorney. ( Robertson at 819.) The lodestar may be augmented or diminished by taking various relevant factors into account including (1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award. ( Robertson at 819.) The multiplier is a risk enhancement based on the probability of loss. ( Robertson at 821.) The prevailing party is entitled to compensation for all the hours reasonably spent in litigating the action to a successful conclusion. ( Ibid., italics in original.) Reasonably spent means that time spent in the form of inefficient or duplicative efforts is not subject to compensation. ( Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394 .) The court may rely on his or her own experience and is given broad discretion in calculating reasonable attorneys fees. ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 ["The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.].) IV. DISCUSSION Plaintiff seeks reimbursement of fees incurred by a partner (Jordan G. Cohen), a senior associate (Rodney Gee), an associate, (Diana Rivero) and four paralegals. The bulk of the work was completed by Ms. Rivero (95.6 hours) and Robert Aguilar (18.5 hours). The Court has considered all of the relevant factors including the nature of the case, which in the Courts view, is a relatively routine lemon law case that did not involve novel or difficult questions of law or fact and resolved relatively quickly with little motion practice. The case required minimal discovery. The Court also considers the outcome of the case, which resulted in restitution and civil penalties without requirement of trial. With respect to the number of hours that each of three attorneys and five paralegals spent on various tasks, the Court has reviewed the billing record and finds that a number of the itemized tasks are unreasonable, inefficient, and at times duplicative among the attorneys and paralegal. Plaintiffs counsel is entitled to reasonable compensation; however, padding in the form of inefficient or duplicative efforts is not subject to compensation." ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 .) The Court is permitted to make across the board cuts and apply a negative multiplier where it determines that the case was not complex, as well as the experience of counsel in this area. ( Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41 [permitting a negative multiplier of 33% to the lodestar fee request of $351,055.26, resulting in a fee award of $115,848.24].) The court has discretion to apply a reduction in hours for duplicative and or excessive billing. Proper factors to consider in applying a negative reduction are the lack of complexity, that the matter did not go to trial, that name partners were doing work that could have been done by lower-billing attorneys, and that all the attorneys were doing work that could have been done by paralegals, thus applying a 39% reduction in the lodestar. ( Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 .) These factors are applicable here. Accordingly, the court declines fees incurred by senior counsel and a senior associate and four of the five paralegals except for Robert Aguilar. The court finds that $400 per hour incurred by Diana Rivero and $210 per hour incurred by Mr. Aguilar are reasonable. Ms. Rivero claims 95.6 hours of work for this case which the court reduces to 77 hours. Mr. Aguilars total hours of 18.5 are reduced to 15 hours. V. CONCLUSION Accordingly, Plaintiffs Motion for attorneys fees is GRANTED. The court permits fees as follows: Counsel/paralegal Hourly fee Time Diana Rivero $400.00 77.00 $30,800.00 Robert Aguilar $210.00 15 $3,150.00 TOTAL $33,742.00 // [TENTATIVE] ORDER DENYING DEFENDANTS MOTION TO TAX COSTS I. BACKGROUND The parties settled this matter on September 18, 2023, and Defendant agreed to pay fees and costs to be determined by the court. Plaintiff filed his Memorandum of Costs on April 22, 2024, requesting $2,974.16 in costs. Defendant asks for a reduction of $2,255.88, as these costs were unreasonable and unnecessary, the motions to compel discovery were boilerplate, frivolous, and did nothing to advance the case. Plaintiff seeks to enrich himself. Plaintiffs counsel should recover no more than $718.28. In opposition, Plaintiff states he is entitled to recover costs as the prevailing party. Recoverable costs under the Song-Beverly Consumer Warranty Act (SBA) are not limited to statutory costs defined under Code Civ. Proc., § 1033.5. Plaintiff is entitled to out-of-pocket expenses. The SBA permits recovery of costs and expenses that are far broader than section 1033.5 permits. In reply, Defendant reiterates its arguments that the majority of Plaintiffs costs were not necessary or reasonable. II. LEGAL STANDARDS The court may, upon motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the Court. ( Code Civ. Proc., § 436 subd (a)-(b).) Section 1032 of the Code of Civil Procedure is the fundamental statutory authority for awarding costs in civil actions. ( Leiper v. Gallegos (2021) 69 Cal.App.5th 284, 297 .) Section 1033.5 is a list of what is, and is not, allowable as a cost, [and] similarly is trial-court-oriented, with items exclusively related to trial court proceedings (e.g., references to jury fees, taking depositions, process servers, etc.). ( Stratton v. Beck (2018) 30 Cal.App.5th 901, 910 .) A prevailing party defined in part as the party with a net monetary recovery is entitled to costs as a matter of right. ( Code Civ. Proc., § 1032 subd. (b).) The SBA permits the buyers recovery of costs and expenses & determined to have been reasonably incurred by the buyer. ( Civ. Code, § 1794 subd (d).) For purposes of the SBA, "expenses encompass out-of-pocket expenses beyond the costs identified in Code of Civil Procedure section 1033.5. ( Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450, 457 .) Accordingly, Plaintiff is not limited to costs articulated under section 1033.5. ( Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137 ["it is clear the Legislature intended the word expenses to cover items not included in the detailed statutory definition of costs.].) Instead, the court considers whether costs were reasonably incurred by the buyer in connection with the commencement and prosecution of [this] action. ( Jensen at 138 .) Defendant has not established that any of the expenses incurred by Plaintiff as distinguished from statutory costs were unreasonably incurred. 1. Filing fees incurred for the attorneys fees motion, discovery motions and court reporter fees incurred for the motion hearing were reasonable costs and expenses given Plaintiffs inability to obtain relevant information to prosecute the action. The fact that Defendant contends that this is an optional cost does not establish it was unreasonably incurred. Moreover, reservation fees are required at the time of reservation. 2. Advanced and nonrefundable jury fees are required by local rule to be deposited in order for Plaintiff to preserve his right to a jury trial. (Code Civ. Proc., § 631 subd (b).) Although the matter did not go to trial, it remains a reasonably incurred expense. 3. Remaining costs for filing CMC statements, Notice of Change of Address, and related notices and courtesy copy delivery fees. Defendant contends that the notice fees were administrative in nature and not required for the litigation. While the Court may not charge a filing fee for some of these notices, Plaintiffs counsel still incurred an expense to a third party to file the notices with the court electronically. A Case Management Conference statement is required by the Court. Defendant has not established that the expense of serving courtesy copies to the court is unreasonable. It is required with respect to discovery motions. (LASC First Amended General Order, ¶ 9.) It stands to reason that a litigant should make the court aware of changes in contact information to ensure delivery of court-issued communication. V. CONCLUSION Based on the foregoing, Defendants Motion to Tax Costs is DENIED. [1] The propriety of Plaintiffs costs are addressed in a separate ruling regarding Defendants Motion to Tax Costs

C23-02945 CASE NAME: ARIANA MOORE VS. MEGEM, LLC *HEARING ON MOTION IN RE: TO BE RELIEVED AS COUNSEL FILED BY: MOORE, ARIANA *TENTATIVE RULING:* The motion to be relieved as counsel is granted.

23CV038384: CITY OF ALAMEDA vs SHEEHAN 07/18/2024 Hearing on Demurrer Plaintiff City of Alameda’s Demurrer to Second Amended Cross-Complaint of Shelby Sheehan; filed by City of Alameda (Plaintiff) in Department 17 Tentative Ruling - 07/16/2024 Frank Roesch The Demurrer filed by City of Alameda on 05/17/2024 is Sustained. Plaintiff/Cross-Defendant City of Alameda’s (“the City”) demurrer to Defendant/Cross- Complainant Shelby Sheehan’s (“Cross-Complainant”) Second Amended Cross-Complaint (“SACC”) is SUSTAINED as to the 7th cause of action for intentional infliction of emotional distress (“IIED”) and the 9th cause of action for premises liability. (Code Civ. Proc., § 430.10, subd. (e).) Leave to amend is granted in connection with the ninth cause of action, but denied as to the seventh cause of action because facts alleged in the SACC and Cross-Complainant’s Opposition do not demonstrate a reasonable possibility that the defects identified under the seventh cause of action can be cured by amendment. Demurrer – Legal Standard A demurrer tests whether a complaint alleges facts sufficient to state a cause of action under any possible legal theory. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1244.) The term “any” is a broad term that means “of whatever kind” or “without restriction.” (Ibid.) When considering demurrers, courts read the allegations in context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) On demurrer, we admit all material facts properly pleaded as true, but not contentions, deductions or conclusions of fact or law. (Lauckhart v. El Macero Homeowners Association (2023) 92 Cal.App.5th 889, 898.) Any defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone, not the evidence or other extrinsic matters. (Code Civ. Proc, §§ 430.30, 430.70) The only issue involved in a demurrer is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where the complaint is defective, it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 970–971.) However, although leave to amend is to be liberally granted, it is not error to deny leave to amend when there is no “reasonable possibility” that the plaintiff can state a cause of action. (Tola v. Bryant (2022) 76 Cal.App.5th 746, 756.) The burden of proving the “reasonable possibility” of cure by amendment is on the plaintiff. (Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 590.) DISCUSSION SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV038384: CITY OF ALAMEDA vs SHEEHAN 07/18/2024 Hearing on Demurrer Plaintiff City of Alameda’s Demurrer to Second Amended Cross-Complaint of Shelby Sheehan; filed by City of Alameda (Plaintiff) in Department 17 Seventh Cause of Action: Intentional Infliction of Emotional Distress The City’s demurrer to the SACC’s seventh cause of action for intentional infliction of emotional distress (“IIED”) is sustained without leave to amend because the SACC has failed to allege facts sufficient to show that the City engaged in conduct that could be found to “exceed all bounds tolerated in a civilized society” and therefore fails to allege facts sufficient to satisfy the outrageous conduct element of this cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Leave to amend is denied because facts alleged in the SACC and Plaintiff’s Opposition demonstrate that the defect identified cannot be cured by amendment. (Tola, supra, 76 Cal.App.5th at p. 756.) To alleged a cause of action for IIED, a plaintiff must allege material facts to show the following: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.) For conduct to be “outrageous” it “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. [Citation.]” (Yau, supra, 229 Cal.App.4th at p. 160.) In order to avoid a demurrer, the plaintiff must allege with great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id. at pp. 160-161.) Here, while the SACC alleges facts showing that the City engaged in acts and omissions that resulted in ongoing habitability violations, the alleged conduct does not “exceed all bounds tolerated in a civilized society.” (Yau, supra, 229 Cal.App.4th at p. 160.) Additionally, like the FACC, the SACC does not allege facts to support a showing of severe or extreme emotional distress as required to successfully allege an IIED cause of action. (Yau, supra, 229 Cal.App.4th at p. 160.) Severe emotional distress means emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. (Hailey v. California Physician’s Service (2007) 158 Cal.App.4th 452, 476.) As the SACC fails to allege facts sufficient to satisfy the required elements of an IIED claim, the City’s demurrer is sustained as to the seventh cause of action without leave to amend. (Code Civ. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV038384: CITY OF ALAMEDA vs SHEEHAN 07/18/2024 Hearing on Demurrer Plaintiff City of Alameda’s Demurrer to Second Amended Cross-Complaint of Shelby Sheehan; filed by City of Alameda (Plaintiff) in Department 17 Proc., § 430.10, subd. (e).) Leave to amend is denied because facts alleged in the SACC and in Plaintiff’s Opposition to this demurrer demonstrate that the defect identified cannot be cured by amendment. (Tola, supra, 76 Cal.App.5th at p. 756.) Ninth Cause of Action: Premises Liability The City’s demurrer to the ninth cause of action is sustained with leave to amend because the SACC fails to identify what dangerous condition existed on the Premises, does not identify what physical injuries were sustained by Cross-Complainant as a result of the unidentified condition or when they were sustained, and further fails to state facts sufficient to indicate when the alleged reports of the unidentified condition(s) were received by the City. Absent this information, the SACC fails to state a valid basis for the City’s liability under the ninth cause of action. (Gov. Code, § 835; Code Civ. Proc., § 430.10, subd. (e).) Under section 835 of the Government Claims Act, public entities are directly liable “for injuries caused by maintaining dangerous conditions on their property when the condition ‘created a reasonably foreseeable risk of the kind of injury which was incurred’ and either an employee's negligence or wrongful act or omission caused the dangerous condition or the entity was on ‘actual or constructive notice’ of the condition in time to have taken preventive measures. (Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230.) A “dangerous condition” of public property is defined as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used. (Hernandez, supra, 90 Cal.App.5th at p. 1230.) Here, the SACC fails to allege facts to identify what condition on the Premises constitutes the alleged “dangerous condition” and further fails to allege what physical injuries (if any) were suffered by Cross-Complainant as a result of the alleged unidentified condition(s) on which this cause of action are based. While the SACC alleges that “numerous inspections and reports have been received, commissioned, reported, and are in possession of City officials prior to and during the relevant time period[,]” (SACC p.13:6-8), no dates are provided for when each of these reports were received by the City; nor are any dates provided for when Cross-Complainant’s alleged physical injuries (if any) were sustained as a result of the unidentified condition. As the SACC fails to allege facts sufficient to state a claim for dangerous condition of public property (which would be the only basis for premises liability against the City), the City’s demurrer to the ninth cause of action is sustained with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV038384: CITY OF ALAMEDA vs SHEEHAN 07/18/2024 Hearing on Demurrer Plaintiff City of Alameda’s Demurrer to Second Amended Cross-Complaint of Shelby Sheehan; filed by City of Alameda (Plaintiff) in Department 17 Tentative Ruling will become the order of the court. HOW DO I CONTEST A TENTATIVE RULING? THROUGH ECOURT Notify the Court and all the other parties no later than 4:00 PM one court day before the scheduled hearing, and briefly identify the issues you wish to argue through the following steps: 1. Log into eCourt Public Portal 2. Case Search 3. Enter the Case Number and select “Search” 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select “Click to Contest this Ruling” 7. Enter your Name and Reason for Contesting 8. Select “Proceed” BY EMAIL Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one court day before the scheduled hearing. This will permit the department clerk to send invitations to counsel to appear remotely. BOTH ECOURT AND EMAIL notices are required.

BROCKMAN VS. FCA US, LLC, ET AL. Case Number: 22CV-0201145 This matter is on calendar for review regarding status of dismissal. At the most recent review hearing on April 15, 2024, the Court was informed that parties were working toward finalizing a settlement agreement. No updated information has been provided. No Notice of Settlement has been filed. No Request for Dismissal has been filed. The Court is in receipt of “Notice of Removal of Action to United States District Court” filed in the Shasta County Superior Court on May 8, 2023. Pursuant to that notice, this Court’s jurisdiction is automatically suspended. 28 USC §1446(d); Allstate Insurance Co. v. Superior Court (1982) 132 Cal.App.3d 670. All future hearing dates were therefore vacated. In light of the foregoing, this Court finds this case is exempt from the case disposition time goals under California Rule of Court §3.714(c)(1) and the case is hereby Administratively Closed unless and until it is remanded. No further appearances are required by the parties, including at today’s Review Hearing.

22CV007675: RIVERA vs DUBLIN CHEVROLET CADILLAC, et al. 07/18/2024 Hearing on Motion for Attorney Fees filed by Emily Rivera (Plaintiff) in Department 20 Tentative Ruling - 07/18/2024 Karin Schwartz The motion is continued based on Attorney Barry's representation that there was an effort to deliver courtesy copies of the documents to Department 20 on July 5, 2024. Counsel shall rearrange for courtesy copies to be delivered to Department 20 forthwith. The Hearing on Motion for Attorney Fees filed by Emily Rivera (Plaintiff) scheduled for 07/18/2024 is continued to 08/08/2024 at 03:00 PM in Department 20 at Rene C. Davidson Courthouse .

Case Number: 23TRCV02248 Hearing Date: July 18, 2024 Dept: P Motion to Compel Arbitration The court considered the moving papers, opposition and reply. RULING Defendant American Honda Motor Companys Motion to Compel Arbitration is GRANTED. BACKGROUND Plaintiffs leased a new 2020 Honda Civic on May 24, 2020. Plaintiff alleges the vehicle suffered from various defects and nonconformities that revealed themselves within the applicable express warranty period. Plaintiff alleges Defendant was obligated under the Song Beverly Act to promptly offer to repurchase or replace the vehicle after a reasonable number of unsuccessful repair attempts. Plaintiff alleges Defendant failed to do so. On July 12, 2023, Plaintiff filed a complaint against American Honda Motor Company alleging claims under the Song Beverly Act. Plaintiff alleges (1) violation of Civil Code §1793.2(d); (2) violation of Civil Code §1793.2(b); (3) violation of Civil Code §1793.2(a)(3); (4) breach of the implied warranty of habitability. LEGAL AUTHORITY Under California and federal law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes. (Moncharsh v. Heily & Blasé (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 or the Federal Arbitration Act, courts resolve doubt about an arbitration agreements scope in favor of arbitration. (Moncharsh, supra, 3 Cal.4th at p. 9; Comedy Club, Inc. v. Improv West Associates (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-72 (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.).) [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. Superior Court (2006) 140 Cal.App.4th 1238, 1247.) 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, supra, 15 Cal.4th 951, 972.) A petition to compel arbitration must allege both a written agreement to arbitrate the controversy, and that a party to that agreement refuses to arbitrate the controversy. (Code Civ. Proc. § 1281.2.) It then becomes plaintiffs burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (Id..) 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 (Avery), quoting Code Civ. Proc. § 1281.2).) Accordingly, when presented with a petition to compel arbitration, the courts first task is to determine whether the parties have in fact agreed to arbitrate the dispute. (Id., at p. 59.) Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Id.; see also Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.) 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 courts discretion, to reach a final determination. (Avery, supra, 218 Cal.App.4th at p. 59; accord Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.) DISCUSSION 1. Applicable Arbitration Agreement Exists Defendant Honda relies on the arbitration agreement contained in the Lease Agreement entered into between Plaintiff and non-party Carson Honda. (Carlson Dec., Ex. 1, Closed End Lease (the Lease Agreement).) The Lease Agreement contains an arbitration provision, which states as follows: YOU and HONDA agree and acknowledge that this Lease affects interstate commerce and the Federal Arbitration Act (FAA) applies. By signing the Arbitration Consent, YOU [plaintiff] elect to have disputes resolved by arbitration. YOU, HONDA, or any involved third party may pursue a Claim. Claim means any dispute between YOU, HONDA, or any involved third party relating to your account, this Lease or our relationship, including any application, the Vehicle, its performance and any representations, omissions or warranties. (Id. at p. 6, ¶52.) Based on its express language, the arbitration agreement applies to Plaintiffs claims against Honda. Honda is an expressly named as a beneficiary of the arbitration agreement. HONDA is defined under the Lease Agreement to include American Honda Motor Co., Inc. (Carlson Dec., Ex. 1, p. 6, ¶52.) The arbitration agreement applies to any dispute between Plaintiff and Honda relating to the Vehicle, its Performance and any&warranties. (Carlson Dec., Ex. 1, p. 6, ¶52.) Plaintiffs complaint is based on alleged defects in the Vehicle and its performance and breach of express and implied warranties. (Complaint, ¶¶10-14.) Defendant is not a signatory to the Lease Agreement. However, Defendant establishes that it is a third party beneficiary thereof. A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it. (Civil Code §1559.) In some cases, a nonsignatory was required to arbitrate a claim because a benefit was conferred on the nonsignatory as a result of the contract, making the nonsignatory a third party beneficiary of the arbitration agreement. (County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 242.) Third parties do not become third party beneficiaries just because a contract benefits them. A contract must be made expressly for the third party's benefit. The test is whether an intent to benefit a third person appears from the terms of the contract. (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 301-302; Pillar Project AG v. Payward Ventures, Inc. (2021) 64 Cal.App.5th 671, 279 Cal.Rptr.3d 117, 120, 123 (plaintiff was not third party beneficiary to arbitration agreement between cryptocurrency exchange platform and intermediary plaintiff hired to convert his cryptocurrency into conventional currency). A person only incidentally or remotely benefitted from a contract is not a third party beneficiary. (Lucas v. Hamm (1961) 56 Cal.2d 583, 590.) Nor does knowledge that the third party may benefit from the contract suffice. (Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 830.) To show the contracting parties intended to benefit it, a third party must show that, under the express terms of the contract at issue and any other relevant circumstances under which the contract was made, (1) the third party would in fact benefit from the contract; (2) a motivating purpose of the contracting parties was to provide a benefit to the third party; and (3) permitting the third party to enforce the contract is consistent with the objectives of the contract and the reasonable expectations of the contracting parties. (Goonewardene, supra, 6 Cal.5th at p. 830.) Defendant is expressly named in the arbitration agreement as a beneficiary of its provisions. Defendant clearly would benefit from the arbitration agreement as an expressly named party. The fact that Valley Hi Honda and Plaintiff included Defendant as named beneficiary is evidence that they intended to benefit Defendant. Allowing Defendant to enforce the arbitration agreement would clearly be consistent with the parties reasonable expectations given that they expressly named it as a party. Plaintiff argues Defendant is not a third party beneficiary of the arbitration agreement. Plaintiff relies on factually distinguishable case law. None of the defendants asserting third party beneficiary status in Ford Motor Warranty Cases (2023) 89 Cal.App.5th 324, Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 971 and Goondewardene v. ADP, LLC (2019) 6 Cal.5th 817 were expressly named in the agreement they were seeking to enforce. Here, the factors to establish third party beneficiary status are clearly established based on the parties expressly naming Honda in the arbitration provision. As such, Honda may enforce the arbitration agreement despite its status as a nonsignatory. Plaintiff argues her claims do not arise out of the Lease Agreement. However, based on the express language of the arbitration provision contained in the Lease Agreement, it expressly covers Plaintiffs claims, because they relate to the Vehicle, its performance and warranties. (Carlson Dec., Ex. 1, Lease Agreement, ¶52.) The arbitration provision is therefore not limited to claims that arise out of the Lease Agreement. Again, Plaintiff relies on factually distinguishable cases to argue that arbitration must be denied because her claims do not arise out of the Lease Agreement. None of the cases involved arbitration provisions as broadly worded as the arbitration provision contained in the Lease Agreement. (See e.g. Montemayor, supra, 92 Cal.App.5th 958, 962 (arbitration provision applied to claim or dispute that arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship); Kramer v. Toyota Motor Corp. (2013) 705 F.3d 1122, 1125 (arbitration provision applied to any claim or dispute arising out of, or relating to: the vehicle, your credit application, this contract, the sale or financing of the vehicle, and any collection activities); (Jurosky v. BMW of North America, LLC (2020) 441 F.Supp.3d 963, 967 (arises out of or relates to .... purchase or condition of this vehicle, the contact or any resulting transaction or relationship). Unlike the cases relied upon by Plaintiff, based on the express language of the arbitration provision, Plaintiff and Valley Hi Honda clearly intended to include her claims for breach of warranty and violation of Song Beverly against Honda. Defendant carries its burden as the party seeking to compel arbitration. Defendant establishes the existence of an applicable arbitration agreement. 2. Plaintiff fails to establish any grounds not to enforce the arbitration agreement a. Honda did not Waive its Right to Arbitration by Delay Plaintiff first asserts that Defendant has waived its right to arbitration because it delayed in demanding that the matter be arbitrated. In general, delay in demanding arbitration may result in the waiver of that contractual right. (Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1043.) If no timing is specified in the contract, a party who does not demand arbitration within a reasonable period of time is deemed to have waived the right to arbitration; what constitutes a reasonable time is a question of fact. (Id.) Participation in the judicial process does not constitute a per se waiver of arbitration; it is only when the conduct of a party is inconsistent with the exercise of the right to arbitrate that waiver is appropriate. (See McConnel v. Merrill Lynch (1980) 105 Cal.App.3d 946, 951; Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1095.) However, such participation may preclude an arbitration demand if it substantially prejudices an opponents rights. (McMillin Dev. v. Home Buyers Warranty (1998) 68 Cal.App.4th 896, 909.) In this case, Plaintiff asserts that, by not demanding arbitration until six months after the complaint was filed and having engaged in discovery in the intervening period, Defendant has waived any contractual right they have to arbitrate. Plaintiff further argues that motions to compel discovery were researched, written, and filed prior to the hearing on this motion and that, if they are compelled to arbitration, they will suffer substantial prejudice. Defendant asserts that the discovery they propounded was aimed at determining what the contract was between the parties and was necessary to determine whether a demand for arbitration was appropriate. Defendant further asserts that Plaintiffs discovery motions were filed after their demand for arbitration so that Plaintiff could have avoided the costs incurred in making those motions. Having reviewed the relevant case law as well as the facts in this case, the court finds that Defendants have not waived, either explicitly or by failing to timely demand, their contractual right to arbitration. To the extent that Plaintiff incurred costs drafting and filing discovery motions, any prejudice was not substantial and could have been avoided by meeting and conferring with defendant. b. The Arbitration Agreement is Not Unconscionable Plaintiff argues the arbitration agreement is unenforceable because it is unconscionable. Plaintiff fails to demonstrate that the agreement is unconscionable. [G]enerally applicable contract defenses, such as ... unconscionability, may be applied to invalidate arbitration agreements without contravening the FAA or California law. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 246.) The party opposing arbitration has the burden of proving the arbitration provision is unconscionable. (Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1099.) The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 12431244 (quoting Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114).) The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form. When the contract is a contract of adhesion imposed and drafted by the party with superior bargaining power, the adhesive nature of the contract is evidence of some degree of procedural unconscionability. However, the fact that an agreement is adhesive is not, alone, sufficient to render it unconscionable. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1561.) The term contract of adhesion signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Armendariz, supra, 24 Cal.4th at 113.) Thus, a form agreement presented on a preprinted form and offered on a take-it-or-leave-it-basis would render it a contract of adhesion. (Baltazar, supra, 62 Cal.4th at 1245.) Where a contract of adhesion is presented but there is no element of surprise or oppression, the Court must be particularly attuned to a claim of unconscionability, but the agreement is not subject[ed] to the same degree of scrutiny as contracts of adhesion that involve surprise or other sharp practices. (Id.) The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126.) Substantive unconscionability arises when a contract imposes unduly harsh, oppressive, or one-sided terms.¿(Armendariz, supra,¿24 Cal.4th at p. 113 (provision in adhesion contract will not be enforced if it does not fall within the reasonable expectations of the weaker or adhering party or if, in context, it is unduly oppressive or unconscionable); Ajamian, supra, 203 Cal.App.4th at p. 797) The substantive unconscionability of an arbitration agreement is viewed in the context of the rights and remedies that otherwise would have been available to the parties. (OTO, supra, 8 Cal.5th at p. 137.) Plaintiff fails to establish that the arbitration agreement is unconscionable. Plaintiff fails to submit any evidence to support her claims that the arbitration agreement was a form agreement presented on a take it or leave it basis. This claim is undermined by the option for Plaintiff to opt out of the arbitration agreement within 30 days of signing. (Carlson Dec., Ex. 1, p. 6, ¶52.) Even if the arbitration agreement was part of a form agreement presented to her on a take or leave it basis, the arbitration agreement is prominently set forth in the Lease Agreement and it is not hidden. The arbitration clause contains in bold-faced type a warning asking that the Plaintiff read the arbitration provision and explaining in the most basic terms its effect. (Carlson Dec., Ex. 1, d¶52.) The Lease Agreement was also only six pages. (Id.) There can be no claim of surprise. Moreover, the agreement in question is a vehicle lease agreement where the power disparity between the parties is nowhere near as potentially oppressive as between an employer and employee. The arbitration agreement is also not substantively unconscionable. The arbitration agreement allows for any of the named parties to the arbitration agreement to compel arbitration, including Plaintiff. The arbitration agreement designates that the arbitration hearing will be where Plaintiff resides. The arbitration agreement provides that the Plaintiff can contact the arbitrator for a fee waiver and if the request is denied, Honda would be obligated to pay filing and arbitrator fees up to $5,000, unless the law requires more. (Id.) Each party would be responsible for any other fees. Honda also waived any right to seek attorney fees unless the claims were frivolous. (Id.) The provision is clearly not one-sided or unduly harsh to Plaintiff. Plaintiff fails to satisfy her burden as the party opposing arbitration based on unconscionability. The motion to compel arbitration is therefore properly granted. 3. The split in authority regarding whether an unnamed, nonsignatory vehicle manufacturer may enforce an arbitration agreement currently before the Supreme Court is irrelevant here There is currently a split in authority regarding whether a nonsignatory manufacturer may rely on equitable estoppel to compel arbitration of Song Beverly Consumer Warranty Claims based on an arbitration provision contained in the vehicle sale or lease contract. The issue is currently under review by the California Supreme Court. While Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 495 answered this question in the affirmative, a line of more recent cases have disagreed with its reasoning. These cases include Davis v. Nissan North America, Inc. (2024) 100 Cal.App.5th 825, 319 Cal.Rptr.3d 517, 527-528 (noting Supreme Corut review of issue and exercising discretion to follow Ford Motor Warranty Cases and rejecting Felisilda); Yeh v. Supr. Ct. (2023) 95 Cal.App. 5th 264, Kielar v. Supr. Ct. (2023) 94 Cal.App.5th 614, 619-620 (review granted Oct. 25, 2023), Montemayor v. Ford Motor Co. (2023) 92 Cal.Ap.5th 958, 968-971 (review granted Sep. 20, 2023), Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324, 1333-1336 (review granted July 19, 2023 S279969), Ngo v. BMW of North America, LLC (2022) 23 F.4th 942, 946 and Jurosky v. BMW North America, LLC (2020) 441 F.Supp.3d 963. Plaintiff argues that her case is analogous to Felisilda and distinguishable from the Ford Motor Warranty Cases. Plaintiffs case is entirely distinguishable from either side of the split on this issue. Defendant is not seeking to compel arbitration based on equitable estoppel. Defendant is seeking to compel arbitration as an expressly named third party beneficiary of an arbitration provision that specifically includes disputes over warranties. Neither Felisilda nor the cases on the side of the Ford Motor Warranty Cases involved a car manufacturer who was expressly named in the arbitration agreement and an arbitration provision that covered disputes over warranties. 4. Action is stayed per CCP §1281.4 If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. [¶] If an application has been made to a court of competent jurisdiction& the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. (CCP §1281.4.) Plaintiffs entire complaint is ordered to arbitration. As such, the action is stayed pending completion of arbitration. ORDER Defendants Motion to Compel Arbitration and Stay Action is GRANTED. The action is stayed pursuant to CCP §1281.4 pending completion of arbitration.