Judge: Ashfaq G. Chowdhury, Case: 19BBCV00276, Date: 2023-12-22 Tentative Ruling

Case Number: 19BBCV00276    Hearing Date: December 22, 2023    Dept: E

Hearing Date: 12/22/2023 – 8:30am
Case No. 19BBCV00276
Trial Date: UNSET
Case Name: GARY LEFKOWITZ v. KHALED A. TAWNSEY, et al.

TENTATIVE RULING– MOTION TO VACATE/SET ASIDE DEFAULT

Moving Party:  Plaintiff/Cross-Defendant, Gary Lefkowitz

Responding Party: Cross-Complainant, Khaled A. Tawansy

Procedural

16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): No – Movant did not serve Cross-Complainant’s counsel at the email address listed on eCourt. However, an Opposition was submitted, so presumably the Cross-Complainant received the motion.

Moving Papers: Notice/Motion

Opposition Papers: Opposition; Clark Declaration

Reply: December 15, 2023 Reply; December 18, 2023 Reply

RELIEF REQUESTED¿ 

Gary Lefkowitz moves the Court to set aside a default that was entered against Lefkowitz on June 10, 2022.

[“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (CRC, Rule 3.110(a).) Here, there is no notice of motion. Movant has a combined, single, jumbled mess that is likely supposed to be both the notice and motion. Further, in no clear manner does Movant state the grounds for issuance of the order in the opening paragraph. After the first sentence in the motion, Movant simply states, “It is understood that the Default was removed for Swiss Corrective. Swiss Corrective did file an answer to the Cross Complaint, on 4/1/2020. Swiss Corrective Default. May 11, 2022.” Further, Movant simply writes near the caption of the moving papers, with no explanation, “CCP 473(B)(D), CCP 473.5, CIV. 1788.61 QUASH SERVICE OF SUMMONS CCP 418.10, Rules of Court 8.78 & 5.74,” on the first page of his motion. ]

BACKGROUND
On 11/09/2021, Cross-Complainant Khaled A. Tawansy filed a second amended cross-complaint against Cross-Defendants Gary Lefkowitz, Franciska K. Von Andrassy, and Swiss Corrective Skin Care, LLC. Cross-Complainant alleged the following cause of action: (1) Breach of Oral Contract, (2) Breach of Contract Implied in Fact, (3) Breach of Implied-In-Law Contract, (4) Breach of Fiduciary Duty, (5) Conversion, and (6) Accounting.

On November 29, 2021, Plaintiff Gary Lefkowitz filed a Third Amended Complaint for Breach of Contract against Khaled A. Tawansy; Khaled A. Tawansy M.D., a California Corporation; Raymond Renaissance Surgery Center, a California LLC; Renaissance Surgical Holdings, a California LLC; Golden State Eye Center, a California Corporation; Golden State Eye Medical Group, a California Corporation; 95 N. Arroyo, a California LLC. The TAC was subsequently dismissed.

On December 6, 2019, Gary Lefkowitz filed a Cross-Complaint alleging 16 causes of action against what appears to be Cross-Defendants James A. Frieden; Khaled A. Tawansy; Noel Cabezzas; Robert M. Cohen; Zayda Cabezzas; Nehal Tawansy; and Viability HealthCare Consultants LLC.

Further, what appears to be helpful in providing procedural context as to the instant motion is the June 1, 2023 Minute Order (Order to Show Cause Re: Possible Sanctions as to Both Parties for Failure to Appear…) which states in relevant part, “Lefkowitz's 3rd amended complaint was dismissed on 4/22/2022. The appeal was dismissed and the remittitur was issued. Lefkowitz's cross-complaint was dismissed on 8/10/2020 and his default was taken on 5/6/2022 in the cross-complaint filed by Tawnsey.” (Min. Order 6/1/2023, p. 1.)

ANALYSIS
Preliminary Matter
As a preliminary matter, Movant’s motion and reply are unclear, and Movant is not consistent as to how it refers to certain complaints/cross-complaints/amended cross-complaints, etc. Movant’s motion is so disorganized that it is often difficult to decipher what arguments Movant is trying to make. Further, at times, Movant provides no legal support for some of the conclusions it reaches in its moving and reply papers. Opposition papers are also poorly written and at times difficult to decipher.

Movant here is moving to set aside a default that “was entered against Lefkowitz on June 10, 2022.” (Pl. Mot. p. 2.) However, the Court notes that it appears that Movant is actually seeking to set aside the default entered on 05/06/2022 as to Tawansy’s Second Amended Cross-Complaint (SACC). This appears to be the case based on the 6/1/2023 Minute Order and the actual Request for Entry of Default filed with the Court on 05/06/2022.

CRC, Rule 5.74(c)
Movant argues that under CRC 5.74, a default is forbidden if an answer was filed earlier. Movant cites CRC 5.74(c)(1)-(2) which states, “(1)  Amendments to pleadings, amended pleadings, and supplemental pleadings may be served and filed in conformity with the provisions of law applicable to such matters in civil actions generally, but the petitioner is not required to file a reply if the respondent has filed a response. (2) If both parties have filed initial pleadings (petition and response), there may be no default entered on an amended pleading of either party.” (CRC, Rule 5.74(c)(1)-(2).)

Movant argues that since he filed his Answer on 12/06/2019, the default is improper and is invalid and void.

The Court finds this argument unavailing because Movant does not state he filed an Answer to the SACC. In fact, the Answer on 12/06/2019 was an answer to the initial Cross-Complaint filed by Tawansy filed on 04/30/2019. This was not an answer filed to the SACC because the SACC was not filed until 11/09/2021; therefore, the 12/06/2019 Answer could not have been to the SACC.

Most importantly, Movant’s argument is unavailing because he cited to CRC Rule 5.74, and there is no indication that this Rule is applicable. In fact, Rule 5.74 is in Title 5 of the California Rules of Court, and Title 5 is titled “Family and Juvenile Rules.” The instant case is not a family or juvenile case. Therefore, Movant’s argument – that since an answer was filed for the initial cross-complaint, default cannot be entered on the SACC because an answer was filed for the initial cross-complaint – is unavailing because this Rule does not appear to be applicable. Thus, Movant’s argument as to CRC 5.74 being grounds to vacate the default is unavailing.

Electronic Service – CRC, Rule 8.78
Movant argues that the motion to set aside/vacate the default should be granted because he wasn’t served the SACC. Movant’s argument appears to be that even though Tawansy alleges service of the SACC via electronic service, Movant did not consent to electronic service. Thus, Movant argues since he did not consent to electronic service under 8.78, this motion should be granted.

Below, the Court includes Rule 8.78 on Electronic Service:

“(a) Authorization for electronic service; exceptions

(1)  A document may be electronically served under these rules:

(A)  If electronic service is provided for by law or court order; or

(B)  If the recipient agrees to accept electronic services as provided by these rules and the document is otherwise authorized to be served by mail, express mail, overnight delivery, or fax transmission.

(2)  A party indicates that the party agrees to accept electronic service by:

(A)  Serving a notice on all parties that the party accepts electronic service and filing the notice with the court. The notice must include the electronic service address at which the party agrees to accept service; or

(B)  Registering with the court's electronic filing service provider and providing the party's electronic service address. Registration with the court's electronic filing service provider is deemed to show that the party agrees to accept service at the electronic service address that the party has provided, unless the party serves a notice on all parties and files the notice with the court that the party does not accept electronic service and chooses instead to be served paper copies at an address specified in the notice.

(3)  A document may be electronically served on a nonparty if the nonparty consents to electronic service or electronic service is otherwise provided for by law or court order. All provisions of this rule that apply or relate to a party also apply to any nonparty who has agreed to or is otherwise required by law or court order to accept electronic service or to electronically serve documents.”

(CRC, Rule 8.78(a).)

Here, the Court notes that even if Movant is correct that he did not agree to electronic service, this still does not address the burden or procedural requirements Movant must demonstrate to vacate a default. Or to phrase it differently, Rule 8.78 provides no legal standard as to vacating default. Therefore, citation to Rule 8.78 does not provide a statutory basis to vacate a default.

State Bar Rule 4.1
Movant refers to State Bar Rule 4.1 without citing what the rule is. Movant’s argument is unclear. Movant’s argument appears to be attacking the merits of the entire case, and arguing that Clark [Movant gives no explanation as to who Clark is. It appears as if Clark is Tawansy’s attorney.] has lied to the Court.

Here, the Court notes that Movant’s argument is indecipherable. Further, this argument and rule makes no reference as to the legal standard that must be met to vacate a default.

Other Arguments by Movant
Movant cites various statues and cases, some of which may or may not be applicable. In Opposition, Tawansy argues as to why several of Movant’s arguments are unavailing. However, the Court will not address every argument asserted by Movant, because as explained below, it appears as if Movant has an availing argument under CCP §473(d).

CCP § 473(d)
“ The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Movant argues that service of the summons was improper and that the Court lacked jurisdiction over Lefkowitz.  Movant also argues that absent proper service of summons, the Court lacks jurisdiction. Movant argues that a court has no authority to render judgment on the basis of substituted or constructive service of the summons when statutory requirements have not been strictly complied with.

Opposition argues that Lefkowitz admitted to receipt of the SACC by electronic mail, and that Lefkowitz was also sent the SACC by U.S. Mail as well.

The Court first notes that it had to conduct its own research on this issue of service because both parties fail to provide arguments rooted in law.

For example, Movant argues service of summons was improper, but Movant makes no argument as to how service of summons here was improper. Movant simply concludes that service was improper without explaining how it was improper. Likewise, Movant makes no explanation of how the statutory requirements were not complied with for service. Movant also makes no argument or cites any legal authority as to what is considered a void judgment under 473(d). Movant simply states in a conclusory fashion, without citing law, that the judgment here is void because service wasn’t proper.

The Opposition here is similarly less than a model of clarity. First, the Opposition does not even mention 473(d). As to refuting that service was improper, the Opposition seems to argue that service was proper because Lefkowitz admitted to receipt of the SACC by electronic mail. However, Movant’s declaration does not quite admit to receipt of the SACC by electronic mail. Movant’s declaration stated, “I was never served with the cross complaint in this case. One was emailed to me, however I had never consented to email service in this case.” (Lefkowitz Decl. ¶10.) Further, to point out a technicality, the declaration states that “one was emailed to me.” This statement doesn’t state if it was the SACC or the original cross-complaint that was emailed to Lefkowitz. Most importantly, the Opposition does not cite legal authority that actual notice is sufficient for service.

Considering that neither party provides legal authority or arguments to fully assess what is the proper course of action, the Court cites the relevant law below that it could find on the topic.

“ ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” [Citation omitted.] “When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’” (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)

“Lack of personal jurisdiction renders a judgment (or default) void, and the default may be directly challenged at any time.” (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250.)

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439.)

“[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, the Opposition attached as Exhibit B the SACC and the SACC’s proof of service. This proof of service did not create a rebuttable presumption that service was proper.

As a preliminary matter, Tawansy’s proof of service for the SACC does not state service was completed via personal service. The proof of service alleges service by mail and electronic mail.

“In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.” (CCP §415.20(a).)

Here, the proof of service does not appear to comply with § 415.20(a). In particular, the proof of service lacks that it was served in his or her office, nor does it indicate that summons and complaint was left with the person who is apparently in charge.

Code of Civil Procedure, § 415.20(b) provides:  “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”  (Code Civ. Proc., § 415.20(b).) 

“[A]n individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801, 152 Cal.Rptr. 836.) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as  ‘reasonable diligence.’ (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:196, p. 4–30.)” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Here, the proof of service does not include a declaration of diligence nor does Opposition’s declaration mention that it could not with reasonable diligence personally serve the summons and complaint. Likewise, it mentions nothing about leaving it with a competent member of the household or a person apparently in charge.

“Notwithstanding subdivision (b), if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.” (CCP §415.20(c).)

Here, this section does not appear to apply in the instant scenario. Further, the Opposition makes no argument that it does apply.

Therefore, since Tawansy did not comply with the statutory requirements regarding proof of service, Tawansy did not create a rebuttable presumption that the service was proper. Further, In Opposition, Tawansy makes almost no attempt to argue how service was proper. Tawansy simply argues how Lefkowitz had actual notice because of the email Tawansy allegedly received.

“Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction. ‘[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392 citing Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.)

TENTATIVE RULING
Lefkowitz’s motion to set aside the default entered on 5/6/2022 as to Tawansy’s Second Amended Cross-Complaint is GRANTED.