Denying Viking’s motion, this Court recognized that under California Civil Code § 1559, a third party beneficiary can enforce a contract made expressly for his benefit. Cartwright v. Viking Industries, Inc., 249 F.R.D. 351, 356 (E.D. Cal. 2008); see, e.g., Cal. Civ. Code § 1559 (2007); Shell v. Schmidt, 126 Cal. App.2d 279, 290 (1954) (“Where the contract is for the benefit of a class, any member or members of the intended class may enforce it.”).

It is well-established that a non-party to a contract can only haverights to enforce the contract as a third party beneficiary. Jones v. Aetna Casualty & Surety Co., 26 Cal. App. 4th 1717, 1724, 33 Cal. Rptr. 2d 291 (1994) (“it is well settled that Civil Code section 1559 excludes enforcementofa contract by persons whoare only incidentally or remotely benefited by it”); Cal. Civ. Code § 1559. In this case, Respondent is clearly attempting to enforce the terms of the Lease by invoking the subordination clause in the Lease,® which it can only do as third party beneficiary -- and only if it complies with all conditions, including the nondisturbance provision.

California Civil Code section 1559 provides that when a contract is “expressly made for the benefit of a third person” it may be enforced by him. Cal. Civ. Code §1559. Express intent is determined on a case by case basis and exists where there is intent that the obligation created by the contract inure to the third party’s benefit.

In California, the rule permitting third party beneficiaries to a contract is codified. Cal. Civ. Code 1559 (Deerings 2017). Thestatute requires that unless a contract is made expressly for the benefit of a third person, no action may be broughtby that third person.

A “contract, made expressly for the benefit of a third party, may be enforced by him at any time before the parties thereto rescind it.” Cal. Civ. Code § 1559. “A third party qualifies as a beneficiary under a contract if the parties intended to benefit the third party and the terms of the contract make that intent evident.”

Indirect Purchaser class members (i.e., End Users) are thus intended third-party beneficiaries to the BPA and, as such, can enforce the choice-of-law clause in the agreement on a class-wide basis. See Hatfield v. Halifax PLC, 564 F.3d 1177, 1183 (9th Cir. 2009) (citing Cal. Civil Code § 1559). Lenovo says in passing that indirect purchasers are not ascertainable.

Furthermore, to the extent that Plaintiff does contend that it is a third-party beneficiary of any contract to which Custom is a party, that would tend to bring this claim within the preemptive reach of the ICCTA. Cf. A.C.L. Computers and Software, Inc. v. Federal Express Corporation, 2016 WL 946127 (N.D. Cal. 2016) (determining under analogous the Airline Deregulation Act, 49 U.S.C. § 41713 that a breach of contract claim brought pursuant to California Civil Code section 1559 would relate to airline rates, routes, or services). V. CONCLUSION For the foregoing reasons, Custom respectfully requests that this Court grant this Motion and dismiss Plaintiff’s Second, Third, and Fourth Claims against Custom without leave to amend.

Karo v. San Diego Symphony Orchestra Ass’n., 762 F.2d 819, 821–22 (9th Cir. 1985) (collecting California cases); Cal. Civil Code § 1559. The Seidl/Luckey Contract, however, makes no mention of TRT and manifests no intent to benefit TRT.

“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.” Cal. Civ. Code § 1559. But the word “expressly” does not mean “on the face of the contract.”

Hatchwell v. Blue Shield of Cal., 198 Cal. App. 3d 1027, 1034 (1988); see also Carranza v. GEICO Gen. Ins. Co., No. 3:13-cv-1932-HZ, 2014 U.S. Dist. LEXIS 170621, at *5– 9 & n.2 (D. Or. Dec. 9, 2014) (plaintiff lacked Article III standing where contract contradicted allegation that she was in contractual privity with defendant). Second, TRT is not a third-party beneficiary of the Seidl/Luckey Contract. California Civil Code section 1559 provides that “[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.” (Emphasis added.)