Judge Randolph M. Hammock, Case Number: 24STCV30388, Date: 2025-03-26 Tentative Ruling

Judge: Randolph M. Hammock, Case: 24STCV30388, Date: 2025-03-26 Tentative Ruling

Plaintiffs Timothy Myers and Amy Moulos purchased real property in Los Angeles from Defendant EWA Holdings, LLC. Defendants retained Defendant Larry Cole as their agent and Compass, Inc., as their broker in the purchase. Defendant EWA was represented by agent Defendant Julian Porcino and Compass. Plaintiffs allege that Defendants made material misrepresentations as to the condition of the property that induced Plaintiffs to purchase it.

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

Plaintiffs move to strike portions of Defendant’s Answer where Defendant raises defenses pertaining to an arbitration clause and the statute(s) of limitations. (See General Denial, p. 2: 9-11; Fourth Affirmative Defense (Lack of Standing); and Sixth Affirmative Defense (Laches).) Plaintiffs maintain that the inclusion of these allegations in the Answer is improper based on the procedural history of this matter.

To wit, before the filing of this lawsuit, the parties to this motion were involved in an arbitration based on the same general facts. It appears that the parties then agreed to dismiss the arbitration and proceed with the action in court, adding additional Defendants. Plaintiffs did so, they say, on the condition that Defendant waive both the right to arbitrate and any statute of limitations. (See LaPedis Decl., and Exhs. thereto.)

Plaintiffs provide a copy of an email that Plaintiffs’ counsel, Jack LaPedis, sent to Defendant’s counsel, Jewels J. Jin, in which LaPedis asked Jin to confirm the waiver terms. (LaPedis Decl., Exh. B.) Plaintiffs also present an email in which Jin replied to that email: “Yes, I approve.” (LaPedis Decl., Exh. C.) Based on that evidence, Plaintiffs claim it is improper for Defendant to now raise arbitration and statute of limitations defenses in its Answer—it waived them.

Ms. Jin, counsel of Defendant, submitted a declaration opposing Defendant’s declaration for an automatic extension to bring the motion to strike. (See 01/15/2025 Opposition and Declaration of Jewels Jin.) [FN 1] In that Declaration, Ms. Jin attested that while she “remember[s] agreeing to forego arbitration,” she “never agreed to waive any applicable statutes of limitation.” (Id. ¶ 20.) She stated it was “outrageous to even contemplate” that she would agree to such a waiver, and even implies that Mr. LaPedis fabricated her email agreeing to that arrangement. (Id. ¶¶ 16-24.)

Ms. Jin has tempered that position in her declaration submitted with Defendant’s opposition to the motion to strike, but still maintains that she does not “recall” sending the email approving the statute of limitations waiver. (03/13/25 Jin Decl. ¶ 11.)

Here, the issues raised by this motion rest on plainly extrinsic evidence and disputed facts. The court cannot resolve these issues now, as “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP § 437(a).)

When all is said and done, Defendant bears the burden of proof as to any of its affirmative defenses. Plaintiff would bear the burden of proof as to whether any of those affirmative defenses were, in fact, “waived” by the Defendant. The proof of the pudding will be in its tasting.

Judge of the Superior Court

FN 1 - Defendant also maintains that Plaintiffs’ motion to strike was untimely. Because this motion is denied on other grounds, the court need not address that argument.