Judge Ashfaq G. Chowdhury, Case Number: 19BBCV00276, Date: 2025-03-26 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 19BBCV00276, Date: 2025-03-26 Tentative Ruling

Hearing Date: 03/20/2025 – 8:30am
Case No. 24NNCV03633
Trial Date: UNSET
Case Name: GUISHENG XU, an individual, v. JIAQI HAN, an individual; FUZHOU LIU, an individual; YINMING LIU, an individual; FIRST STOP AUTO LLC, a California limited liability company; and DOES 1 to 10, inclusive

TENTATIVE RULING ON MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT

RELIEF REQUESTED¿¿¿
“Defendant YINMING LIU will and hereby does move this court for an order vacating and setting aside the default entered on October 11, 2024, and subsequent default judgment entered on February 4, 2025, on the grounds:

a) the Summons and Complaint purportedly served on him by substituted service on August 27, 2024, were not properly served on him and hence the default and default judgment are void;

b) alternatively, on the grounds set forth in Code of Civil Procedure section 473.5.

A copy of Defendant’s proposed Demurrer is attached to this Motion as Exhibit “C.”

The relief requested by this Motion is based upon this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the declarations of Defendant Yinming Liu and Eugene R. Long, all pleadings and documents currently on file with the Court as well as such other oral or documentary evidence as may be presented at the time of hearing on this Motion.”

(Def. Mot. p. 2.)

PROCEDURAL

Moving Party: Defendant, Yinming Liu (Defendant or Movant)

Opposing Party: Plaintiff, Guisheng Xu

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion [filed 2/10/2025]; Amended Notice/Motion [filed 2/24/2025];

Opposition Papers: Opposition

Reply Papers: Reply

BACKGROUND

Plaintiff, Guisheng Xu, filed the instant action on 8/19/2024 against Defendants – (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, (4) First Stop Auto LLC, a California limited liability company, and (5) Does 1 to 10, inclusive.

Entry of default was entered against all of the non-Doe Defendants on 10/11/2024.

Does 1 to 10 were dismissed from the Complaint on 10/29/2024.

On 02/04/2025, default judgment was entered against (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, and (4) First Stop Auto LLC, a California limited liability company.

For purposes of this hearing, the Court considers Defendant, Yinming Liu’s, amended notice/motion filed on 2/24/2025 and not the earlier filed notice/motion that was filed on 2/10/2025.

ANALYSIS
Preliminary Matter

In the instant action, Plaintiff filed four proofs of substituted service on 8/29/2024 for all of the named Defendants in this action.

Moving Defendant, Yinming Liu, moves for an order to vacate and set aside the default and default judgments entered against him on the basis that he was not properly served.

Movant appears to move pursuant to CCP § 473(d), and in the alternative, § 473.5.

The Court notes that neither party’s papers is a model of clarity. For example, neither party makes clear why § 473(d) or § 473.5 is or is not the appropriate statute to move under to vacate the default/default judgment. Generally speaking, Defendant argues that service upon him was improper, and Plaintiff argues that service upon Defendant was proper. To the Court, this motion appears to be akin to a motion to quash service of summons. Either way, since Defendant’s motion does not make clear why § 473(d) or § 473.5 is the appropriate statute, and since Plaintiff did not oppose Defendant’s motion on the grounds that those two statutes are not the proper statutes, the Court will assume Defendant moved under the proper statute.

Substantive

On 8/29/2024, Plaintiff filed a proof of service of summons that alleged substituted service on Defendant, Yinming Liu, on 8/27/2024.

Defendant, Yinming Liu, argues that service upon him was not proper.

Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

As to how Defendant believes that service upon him was improper is not entirely clear. Many times Defendant asserts arguments without citing legal authority. Or at times, Defendant will make reference to legal authority, but in no clear manner does Defendant explain how his argument is tied to the legal authority that he cited.

For example, Defendant first appears to argue that service upon him was not valid because Plaintiff did not personally serve him.

The argument that service was improper because Defendant was not personally served appears to be unavailing for several reasons.

First, Plaintiff’s proof of service lists service upon Defendant via substituted service; it does not list service upon Defendant via personal service.

Second, it does not appear that Defendant has to be personally served, because substituted service is an alternative to personal service.

As explained in American Express Centurion Bank v. Zara:

The Code of Civil Procedure specifies the various methods by which service may be made upon defendants who are sued as individuals.

The method described as “personal service” means service that is accomplished “by personal delivery of a copy of the summons and of the complaint to the person to be served.” (§ 415.10.) If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been “personally served.”

A defendant may also be “personally” served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant. (§ 416.90; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 4:128 to 4:132, pp. 4–19 to 4–21; (rev. # 1, 2010) ¶ 4:184, p. 4–27 (rev. # 1, 2004) (hereafter Weil & Brown, Civil Procedure Before Trial).) An authorized agent might include, for example, an attorney who has been expressly authorized to accept service, or a sheriff or jailer having custody of a prisoner. (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:128, p. 4–19, ¶¶ 4:130.2, 4:132, pp. 4–20 to 4–21.)

Another alternative available for serving individual defendants is what is commonly known as “substitute service.” Substitute service on an individual is accomplished by “leaving a copy of the summons and complaint **103 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 ..., 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.” (§ 415.20, subd. (b).)

However, an 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.)

Thus, Defendant’s argument that service was improper because he was not personally served is unavailing.

Substituted Service – Usual Place of Business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Further, Plaintiff’s proof of service checks a box for substituted service via business to “a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served.” The proof of service also indicates that the documents were left with “Jane Doe – Angela, refused last name (Gender: F Age: 35 Height : 6’0” Weight: 120 Race: Asian American Hair: Black Other: Hazel Eyes) Manager.”

Under CCP § 415.20(b), substitute service is effectuated when:

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.

(CCP § 415.20(b).)

Defendant appears to be arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” and because service was not left with “a person apparently in charge of his or her office, place of business, or usual mailing address.”

Attached to the motion, the declaration of Defendant Yinming Liu is attached.

In relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic] by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

3. The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business. The building does not have any front desk person or onsite management office. The corporate defendant First Stop Auto LLC is a dormant entity with no revenue, employees, or operations. It does not have any manager, employees, or representatives at that address.

4. I first became aware of this lawsuit on January 2, 2025, upon receipt of a WeChat message from defendant Fuzhou Liu. A review of the lawsuit revealed that it concerns a dispute concerning an unpaid loan of $50,000 between two individuals, Plaintiff and Mr. Fuzhou Liu. It has nothing to do with me as an individual or the corporate defendant, First Stop Auto LLC.

5. On February 4, 2025, I appeared at the Court and sought to express my position to the Court. The Court advised me that it cannot give me any legal advice and the only advice to me was to retain a lawyer to file a motion for relief. Accordingly, I have retained the law firm of WHGC, PLC to file this Motion.

(Liu Decl. ¶¶ 2-5.)

To the extent that Defendant is arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” Defendant’s declaration appears to address this in ¶ 3 of the Liu declaration wherein Liu states, “The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business.” (Liu Decl. ¶ 3.)

In Opposition, Plaintiff argues that Defendant Yinming Liu was in fact properly substitute served at his “usual place of business.” Plaintiff argues that Liu is making misrepresentations to the Court and that the 314 Garvey address is in fact Liu’s “usual place of business.”

To support this argument, Plaintiff attaches the declaration of Plaintiff’s attorney (Tom F.Y. King), along with Exhibits A-E cited in King’s declaration.

King states as follows:

2. In or about August 2024, I searched, downloaded, and printed a statement of information filed with California Secretary of State filed by Yinming Liu on behalf First Stop Auto LLC on August 13, 2024. Attached hereto as Exhibit A is a true and correct copy of the statement of information I obtained from California Secretary of State website. It shows Yingming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC, located at 314 E Garvey Ave, Monterey Park, CA 91755.

3. Previously, before Yinming Liu filed the August 13, 2024 statement, I also searched and download a statement of information Yinming Liu filed with California Secretary of State the year before on July 5, 2023, which also shows Yinming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC located at 314 E Garvey Ave, Monterey Park, CA 91755. A true and correct copy of said statement is attached hereto as Exhibit B.

4. In January 2025, after the three individual defendants appeared in court to try to argue their case on January 16, 2025, I searched, found, and download from California Secretary of State website a statement of information filed by Yinming Liu on January 3, 2025 moving the company address to 797 E Arrow Hwy, Azusa, CA 91702, a copy of which is attached hereto as Exhibit C. I also found and downloaded a statement of information filed on January 16, 2025 by co-defendants Jiaqi Han moving the company address back to 314 E Garvey Ave, Monterey Park, CA 91755 and removing Yinming Liu's name from the company. A true and correct copy of said statement is attached hereto as Exhibit D.

5. As a result of the two successively filed statement of information First Stop Auto LLC filed with California Secretary of State in January 2025, all previously filed statement of information were purged from the public record. I inquired on this matter online and discovered that it is the policy of California Secretary of State to only keep the two most recently filed statement of information for an entity for public record. Attached hereto are search results from Google based on the search terms "California Secretary of State purging prior statement of information." The search result shows a general result followed by links to specific webpage results. Attached hereto as Exhibit E is a page from the general search result and a specific search results from California Secretary of State website.

(King Decl. ¶¶ 2-5.)

However, even assuming the truth of King’s declaration and the attached exhibits, Plaintiff’s argument is not on point and appears to miss the mark.

For example, to the extent that the California Secretary of State lists Yinming Liu as manager, member, CEO, and agent for service of process at the 314 E Garvey address, that information is applicable to First Stop Auto LLC. That information says nothing about the Defendant as an individual that is filing the instant motion. The instant proof of service that Defendant is arguing is improper is the proof of service as to the individual, Yinming Liu. Yinming Liu is arguing that the 314 address is not his usual place of business. At best, the information attached from the California Secretary of State would maybe seem to indicate that Yinming Liu could accept service at the 314 E Garvey address for First Stop Auto LLC since he was listed as agent of service of process for First Stop Auto LLC. However, to reiterate, that information says nothing about where Yinming Liu, the individual’s usual place of business is. At best, it may show where First Stop Auto LLC’s usual place of business is. Ultimately, First Stop Auto LLC is not moving to vacate default/quash service of summons. Here, moving Defendant is Yinming Liu the individual.

At best, maybe the successive filings with the Secretary of State tests Liu’s credibility for changing the address of First Stop Auto LLC and changing the name of the agent for service of process. However, again, even assuming there were bad faith, the Court fails to see how Plaintiff’s arguments addresses the usual place of business of the moving Defendant, Yinming Liu, the individual.

Despite all this, in Defendant’s Reply Defendant confusingly argues that even if 314 E Garvey were Liu’s place of business, service was not proper because the crucial question is whether service was proper where Plaintiff served an unknown individual at a location that housed several other businesses where there is no indication that the individual ever informed Liu of service.

Therefore, the Court will hear argument from the parties about the “usual place of business” of Defendant.

Substituted Service – Person Apparently in Charge of his or her office, place of business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Under CCP § 415.20(b), substitute service is effectuated when:

(CCP § 415.20(b).)

Defendant argues that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship.

Further, in relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic]by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

(Liu Decl. ¶¶ 2-5.)

Defendant’s argument – that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship – is confusing because it isn’t entirely clear what portion of § 415.20(b) Defendant is arguing that Plaintiff did not comply with.

Presumably, Defendant is trying to argue that “Jane Doe – Angela” was not “a person apparently in charge of his or her office, place of business,” and thus service was improper. Defendant’s declaration does not state that Jane Does/Angela was not “a person apparently in charge of his or her office or place of business” in any explicit terms. Instead, the Liu declaration states in relevant part, “I do not know this individual nor do I have any personal or business relationship with her.” (Liu Decl. ¶ 2.)

In Opposition, Plaintiff does not address Defendant’s argument regarding the individual that was allegedly served in any clear manner. Plaintiff’s Opposition seems to mainly contest that 314 E Garvey was in fact the usual place of business of Defendant. It seems like Plaintiff attempts to argue that Defendant is not credible based on the filing with the secretary of state because Defendant would know the people at the 314 E Garvey address because it is his address.

In Reply, Defendant argues that the key issue here is that Plaintiff served an unknown individual that housed several other businesses where there is no indication that the individual ever informed Liu of the service.

Here, the Court will hear argument. Defendant appears to be arguing, although not explicitly stated in Defendant’s motion or Defendant’s declaration, that “Jane Doe – Angela” was not a person apparently in charge of his or her office, or place of business. Opposition does not do much to contest this argument. Plaintiff’s Opposition seems to just be implying that Defendant would in fact know who Angela is because the 314 Garvey address is Defendant’s business. The Reply reiterates that Defendant has no idea who Angela is and that there is no evidence to suggest that she worked with or for Liu.

473.5

Under CCP § 473.5(a):

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(CCP § 473.5(a).)

Defendant argues that the Summons and Complaint did not result in actual notice to Liu for Liu to defend the action.

However, the Court notes that neither party’s arguments regarding § 473.5 adds any further substance to their arguments. Plaintiff’s arguments that Defendant did in fact have notice are based on the same arguments previously discussed, i.e., Plaintiff argues that Defendant is lying and in fact had notice because Defendant is/was CEO of First Stop Auto LLC which is located at 314 E Garvey.

Overall

Dill v. Berquist Construction Co. states:

It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 [145 Cal.Rptr. 814], quoting from Judicial Council Rep., supra, com. to § 417.10, p. 56; but see Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255, fn. 7 [211 Cal.Rptr. 517, 695 P.2d 1058], overruling Lowenstein on a related issue.) However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, Defendant appears to have shown how Plaintiff’s proof of service as to moving Defendant did not comply with the statutory requirements for proof of substituted service. Defendant appears to have shown this by showing that the location served was not his usual place of business. Plaintiff’s argument in Opposition appeared to be unavailing because at best Plaintiff may have shown that the address served was First Stop Auto LLC’s usual place of business; however, First Stop Auto LLC is not seeking to vacate the default/default judgment. Here, moving Defendant is Yinming Liu. Plaintiff did not submit proof or evidence about Yinming Liu, the individual’s, usual place of business. Even setting aside the issue of “usual place of business” and focusing on whether or not a “person apparently in charge of his or her office or place of business” was served, Defendant seems to argue that he had no idea who the person is that Plaintiff served. In Opposition, Plaintiff simply seems to argue that Defendant is lying and Defendant would know who was served because the location served was where Defendant’s business was located.

Dill v. Berquist Construction Co. states, “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. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

Tentatively, the Court plans to GRANT, Defendant Yinming Liu’s motion to vacate the default and default judgment entered against Yinming Liu. The Court notes that this order does not apply to the other Defendants, as no other Defendants moved to vacate default/judgment.

Case Number: 19BBCV00276 Hearing Date: March 26, 2025 Dept: E

Case No: 19BBCV00276
Hearing Date: 3/26/2025 – 9:00am

Trial Date: UNSET

Case Name: GARY LEFKOWITZ v. KHALED A. TAWNSEY, et al.

[4 TENTATIVE RULINGS]

BACKGROUND
Cross-Complainant, Khaled A. Tawansy, filed the SACC (Second Amended Cross-Complaint) on 11/09/2021. On 12/22/2023, this Court granted Cross-Defendant, Gary Lefkowitz’s, motion to set aside the default entered on 5/6/2022 as to Tawansy’s SACC.

Further, this Court notes how on 6/1/2023, the Court noted how “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.” (6/1/2023 Min. Order, p. 1.)

Cross-Complainant, Khaled A. Tawansy, filed his SACC on 11/9/2021 against Cross-Defendants Gary Lefkowitz, Franciska K. Von Andrassy, Swiss Corrective Skin Care, LLC. The SACC alleges six causes of action for: (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 5/24/2024, this Court heard Cross-Defendant’s demurrer to the SACC. The Court sustained Cross-Defendant’s demurrer to the first cause of action with leave to amend granted. The Court overruled the demurrer as to all other causes of action.

On 6/5/2024, Cross-Complainant, Khaled A. Tawansy (Tawansy), filed the Third Amended Cross-Complaint (TACC) against Cross-Defendants Gary Lefkowitz, Franciska K. Von Andrassy, and Swiss Corrective Skin Care, LLC.

The TACC alleges six causes of action for: (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.

Cross-Complainant alleges that Cross-Defendants received approximately $2,000,000 in funds belonging to Cross-Complainant. (TACC ¶ 7.) Cross-Complainant alleges that Cross-Defendants orally agreed to hold Cross-Complainant’s funds for Cross-Complainant’s benefit, to expend those funds only as authorized by Cross-Complainant, and to account for the funds held by them. (See TACC. ¶¶ 15 & 25.) Cross-Complainant alleges that while Cross-Defendants used some of Cross-Complainant’s funds to pay for legitimate expenses of Cross-Complainant and his business, Cross-Defendants’ used some of the funds of the Cross-Complainant for their own purposes, converting those funds to their own use and benefit. (TACC. ¶ 14.) Cross-Complainant alleges that on or about October 2018, Cross-Complainant demanded return of all monies being held by Cross-Defendants, but Cross-Defendants failed and refused to pay or return the balance to Cross-Complainant. (TACC. ¶ 19.)

On 10/18/2024, this Court heard Cross-Defendant, Gary Lefkowitz’s, demurrer to the Third Amended Cross-Complaint (TACC) and overruled Lefkowitz’s demurrer to the TACC.

On 1/27/2025, this Court denied Lefkowitz’s motion for reconsideration of ruling on demurrer filed by Lefkowitz on 11/5/2024.

Now, Cross-Defendant, Gary Lefkowitz, has four motions on calendar for 3/26/2025.

Motion 1 ends with Res ID #5218 and is titled “MOTION FOR ORDER DISQUALIFYING Mr. Clark from representation of Tawansy.”

Motion 2 ends with Res ID #2832 and is titled “MOTION JUDGMENT ON THE PLEADINGS.”

Motion 3 ends with Res ID #8620 and is titled “Gary Lefkowitz 128.7 Motion, Points and Authorities, in Opposition to Cross-Complaint Filed by Khaled A. Tawansy and All Amendments Thereto.”

Motion 4 ends with Res ID #4990 and is titled “MOTION FOR ORDER DISMISSING THE CASE FOR NO EVIDENCE TO SUPPORT THE CLAIMS, FAILURE OF COUNSEL TO DISCUSS THE CASE IN VIOLATION OF COURT ORDERS, FAILURE OF TAWANSY TO APPEAR AT 7 DEPOSITIONS, TO STRIKE THE CLAIMS OF TAWANSY CPA, TO STRIKE CLAIMS OF Mr. Clark.”

TENTATIVE RULING MOTION 1 Res ID 5218
Cross-Defendant, Gary Lefkowitz, filed a motion titled “MOTION FOR ORDER DISQUALIFYING Mr. Clark from representation of Tawansy.”

Lefkowitz’s motion states, “Gary Lefkowitz makes the following motions to disqualify Mr. Clark as he will be a Material witness in this case of Mr. Clark. This will be amended.” (Mot. p.1.)

Cross-Complainant, Khaled A. Tawansy filed an Opposition.

The substance of Tawansy’s Opposition states:

Cross-Defendant Gary Lefkowitz has failed to properly prepare this Motion and served a "Notice of Motion" which is defective:

· California Code of Civil Procedure § 1005(a): Motions require written notice. The Notice of Service of Process on this Motion fails because it does not state that the service was completed under penalty of perjury, pursuant to the laws of the State of California.

· California Code of Civil Procedure § 1005(b) Other than the "Notice of Motion," additional papers supporting the Motion were not produced within sixteen (16) Court days prior to the scheduled hearing.

· California Rules of Court 3.1110(b) Cross-Defendant Lefkowitz failed to provide a title or nature of any attached document to the Motion. There are no attached documents supporting Cross-Defendant Lefkowitz's claims.

· California Rules of Court 3.1112(a) A Motion must have a Memorandum in support of the motion. A Memorandum supporting the Motion was not attached to the Notice filed by Cross-Defendant Lefkowitz.

· California Rules of Court 3.1112(d) An adequate "statement" was not included for the basis of the Motion and the relief sought, thereby making the Motion incomplete and uncertain.

· California Rules of Court 3.1113(a) Cross-Defendant Lefkowitz must serve and file a supporting Memorandum. Failure to do so allows the Court to construe the absence of the Memorandum as an admission that the Motion is not meritorious and cause for its denial. Cross-Defendant Lefkowitz failed to comply with CRC 3.1113 (a) as stated therein.

(Oppo. p. 1-2.)

Tawansy’s first argument in Opposition is that under CCP § 1005(a), Lefkowitz’s motion fails because it does not state that the service was completed under penalty of perjury, pursuant to the laws of the State of California.

The Court notes that even though Tawansy cited to CCP §1005(a), 1005(a) says nothing about service or penalty of perjury. Therefore, the Court is not entirely clear what Tawansy is trying to argue.

It is not entirely clear what Tawansy’s second argument is. Tawansy argues, “California Code of Civil Procedure 1005(b) Other than the "Notice of Motion," additional papers supporting the Motion were not produced within sixteen (16) Court days prior to the scheduled hearing.” (Oppo. p. 1.)

To the extent that Tawansy is referring to the statement in Lefkowitz’s motion that stated, “This will be amended,” Tawansy is correct to note that no additional papers supporting the motion were produced within 16-court days prior to the scheduled hearing.

Tawansy’s third argument is “California Rules of Court 3.1110(b) Cross-Defendant Lefkowitz failed to provide a title or nature of any attached document to the Motion. There are no attached documents supporting Cross-Defendant Lefkowitz's claims.” (Oppo. p. 2.)

It is not entirely clear what Tawansy’s third argument is; however, the Court does note that there are in fact no attached documents to Lefkowitz’s motion.

Tawansy’s fourth argument is “California Rules of Court 3.1112(a) A Motion must have a Memorandum in support of the motion. A Memorandum supporting the Motion was not attached to the Notice filed by Cross-Defendant Lefkowitz.” (Oppo. p. 2.)

Tawansy presumably intended to cite to CRC, Rule 3.1112(a)(3) which states, “Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (3) A memorandum in support of the motion or demurrer.” (CRC, Rule 3.1112(a)(3).)

Here, Tawansy is correct to note that Lefkowitz did not file a memorandum in support of his motion.

Tawansy’s fifth argument is “California Rules of Court 3.1112(d) An adequate "statement" was not included for the basis of the Motion and the relief sought, thereby making the Motion incomplete and uncertain.” (Oppo. p. 2.)

Under CRC, Rule 3.1112(d):

A motion must:

(1) Identify the party or parties bringing the motion;

(2) Name the parties to whom it is addressed;

(3) Briefly state the basis for the motion and the relief sought; and

(4) If a pleading is challenged, state the specific portion challenged.

(CRC, Rule 3.1112(d).)

As to Tawansy’s fifth argument in opposition, the Court is not entirely clear what Tawansy is trying to argue. Here, it appears that Lefkowitz’s basis for the motion is that Mr. Clark will allegedly be a material witness in the case. Further, the relief sought by Lefkowitz is for Mr. Clark to be disqualified. Therefore, it appears that Tawansy’s argument is unavailing as to CRC, Rule 3.1112(d).

Tawansy’s sixth argument is “California Rules of Court 3.1113(a) Cross-Defendant Lefkowitz must serve and file a supporting Memorandum. Failure to do so allows the Court to construe the absence of the Memorandum as an admission that the Motion is not meritorious and cause for its denial. Cross-Defendant Lefkowitz failed to comply with CRC 3.1113(a) as stated therein.”

Under CRC, Rule 3.1113(a), “A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (CRC, Rule 3.1113(a).

Here, Tawansy is correct to note that Lefkowitz did not follow CRC, Rule 3.1113(a).

The Court DENIES Cross-Defendant’s, Lefkowitz’s, motion for order disqualifying Mr. Clark from representation of Tawansy. Lefkowitz provided no legal authority to support his argument. Further, as pointed out in opposition, Lefkowitz’s motion did not comply with CRC, Rule 3.1112(a)(3), nor did it comply with CRC, Rule 3.1113(a), because Lefkowitz did not serve or file a memorandum in support of the motion.

The Court notes that as of 3/24/2025, Lefkowitz has not filed a Reply. Any Reply submitted would be untimely.

TENTATIVE RULING MOTION 4 Res ID 4990

Cross-Defendant, Gary Lefkowitz, filed a motion titled “MOTION FOR ORDER DISMISSING THE CASE FOR NO EVIDENCE TO SUPPORT THE CLAIMS, FAILURE OF COUNSEL TO DISCUSS THE CASE IN VIOLATION OF COURT ORDERS, FAILURE OF TAWANSY TO APPEAR AT 7 DEPOSITIONS, TO STRIKE THE CLAIMS OF TAWANSY CPA, TO STRIKE CLAIMS OF Mr. Clark.”

Lefkowitz argues, “Gary Lefkowitz makes the following motions to dismiss the case for no evidence to support the claims, failure of Clark to discuss the case or to meet and confer as ordered by the court, failure of Tawansy to appear at 7 Depositions, striking claims of the Tawansy CPA and of Mr. Clark. This will be amended.”

Cross-Complainant, Khaled A. Tawansy filed an Opposition. Tawansy’s Opposition brought up the same exact arguments that the Court addressed in its tentative ruling for Motion 1.

The Court incorporates its reasoning, analysis, and explanation from its tentative ruling for Motion 1 into this motion.

The Court DENIES Cross-Defendant’s, Lefkowitz’s “MOTION FOR ORDER DISMISSING THE CASE FOR NO EVIDENCE TO SUPPORT THE CLAIMS, FAILURE OF COUNSEL TO DISCUSS THE CASE IN VIOLATION OF COURT ORDERS, FAILURE OF TAWANSY TO APPEAR AT 7 DEPOSITIONS, TO STRIKE THE CLAIMS OF TAWANSY CPA, TO STRIKE CLAIMS OF Mr. Clark.” Lefkowitz provided no legal authority to support his arguments. Further, as pointed out in opposition, Lefkowitz’s motion did not comply with CRC, Rule 3.1112(a)(3), nor did it comply with CRC, Rule 3.1113(a), because Lefkowitz did not serve or file a memorandum in support of the motion.

The Court notes that as of 3/24/2025, Lefkowitz has not filed a Reply. Any Reply submitted would be untimely.

TENTATIVE RULING MOTION 3 Red ID 8620

Cross-Defendant, Gary Lefkowitz, filed a motion titled “Gary Lefkowitz 128.7 Motion, Points and Authorities, in Opposition to Cross-Complaint Filed by Khaled A. Tawansy and All Amendments Thereto.”

Lefkowitz’s 15-page motion is largely incomprehensible.

Tawansy’s Opposition is also not a model of clarity.

Lefkowitz cites to various portions of CCP § 128.7. In relevant part:

(a) Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

(CCP § 128.7(a)-(c).)

Further, in relevant part, Lefkowitz argues:

The issue in this Case is that the Cross-Complainant Khaled A. Tawansy along with his Attorney James A. Frieden have asserted in the Cross-Complaint that Gary Lefkowitz received or obtained funds of Khaled A. Tawansy. This is not true. There are no facts that support this theory. This has been the substance of the Cross-Complaint and in many other documents that have been filed in this Case. There is no evidence to support this claim.

The 128.7 Letter that was sent to Khaled A. Tawansy and his attorneys on September 2025, points this out in total detail. The 128.7 letter is referred to herein as the 128.7 Letter.

(Mot. p. 1-2.)

Overall, the first 11.5 pages of Lefkowitz’s motion is a rambling, incomprehensible mess.

Generally speaking, Lefkowitz appears to be arguing that the TACC has no merit, that Tawansy has no evidence to support his action, that under 128.7 the TACC can be stricken because Tawansy brought this action without any basis/evidence to bring it, that under 128.7 Tawansy/Tawansy’s attorney had a duty to make a reasonable inquiry before filing papers with the Court, and that Tawansy/Tawansy’s attorney must have had an actual belief that the allegations set forth in the TACC are true.

The Court finds Lefkowitz’s arguments unavailing.

Lefkowitz basically appears to be treating this motion as some sort of dispositive motion like a motion for summary judgment, or a trial. Lefkowitz cites all sorts of evidence, letters, and other cases. Not only does Lefkowitz not submit the evidence that he refers to, like the “128.7 Letter,” but Lefkowitz’s arguments are entirely incomprehensible as to how this action has no merit. Of all the jumbled, alleged evidence/facts that Lefkowitz refers to, Lefkowitz does not make it clear how his arguments are availing based on legal authority.

The Court DENIES Lefkowitz’s motion titled “Gary Lefkowitz 128.7 Motion, Points and Authorities, in Opposition to Cross-Complaint Filed by Khaled A. Tawansy and All Amendments Thereto.”

Further, the Court notes that Lefkowitz cites to § 128.7(c)(1) to argue that he complied with the 21-day safe harbor provision.

Under CCP § 128.7(c)(1):

A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(CCP § 128.7(c)(1).)

In Opposition, Tawansy argues that a copy of this motion was sent to Tawansy’s prior attorney, James Friednan, on July 10, 2023. Tawansy argues that Friednan was Tawansy’s attorney many years ago; therefore, said 21-Day Notice was not sent to Tawansy’s present attorney, William F. Clark.

As to the 21-day safe harbor provision, the Court does not understand moving, or Opposition’s, argument. It is unclear if Tawansy is arguing that the instant motion was not served on him, or if Tawansy is arguing that the 21-day notice was not served onto him. The Court will hear argument from Tawansy as to how the 21-day safe harbor provision was not complied with.

However, the Court notes that whether or not Lefkowitz complied with the 21-day safe harbor provision, this Court will still likely DENY Lefkowitz’s instant motion, as it is unavailing on the other grounds that this Court previously explained.

The Court also notes that on pages 14-15 of Lefkowitz’s motion, Lefkowitz writes:

3) That the moving party also seeks monetary sanctions against James A. Frieden and Khaled A. Tawansy for $40,000 in attorney fees and costs subject to proof in supplemental papers to be filed with the reply and before the court hearing. Should the Cross-Complaint not be dismissed within 21 days, Gary Lefkowitz will hire counsel to pursue this Motion.

4) That on July 20, 2020 a copy of this motion was sent to James A. Frieden with a notice that James A. Frieden and his client Khaled A. Tawansy had 21 days to take corrective action. That they declined to take such action.

(Mot. p. 14-15.)

The Court points out ¶ 3 because to the extent that Lefkowitz plans to file supplemental papers with the Reply, the Court notes that no Reply was submitted as of 3/24/2025. Any such Reply and supplemental papers would be untimely.

Further, to the extent that Lefkowitz is also seeking sanctions against Frieden, and to the extent that Lefkowitz argues that a copy of this motion was sent to Frieden on July 20, 2020, Lefkowitz provided no proof of service of the instant motion as to James A. Frieden.

TENTATIVE RULING MOTION 2 Res ID 2831

On 2/18/2025, Cross-Defendant, Gary Lefkowitz, filed a motion titled “MOTION JUDGMENT ON THE PLEADINGS.” The motion argues, “Gary Lefkowitz makes the following for judgment of the pleadings that prove that no funds based upon the files that have been filed with this court providing a complete accounting of the funds. This will be amended.”

On 2/24/2025, Lefkowitz filed an addendum with documents. It appears that Lefkowitz submitted these documents for evidentiary purposes so that Lefkowitz could attack the merits of the TACC.

On 3/4/2025, Lefkowitz filed an amended motion for judgment on the pleadings that contained Lefkowitz’s arguments for the motion for judgment on the pleadings.

LEGAL STANDARD – MOTION FOR JUDGMENT ON THE PLEADINGS
If moving party is a defendant, a motion for judgment on the pleadings may be made if either of the following conditions exist: (1) The court has no jurisdiction of the subject of the cause of action alleged in the complaint, or (2) The complaint does not state facts sufficient to constitute a cause of action against the defendant. (CCP § 438(c)(1)(B).)

“The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (CCP § 438(d).)

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)

TENTATIVE RULING MOTION 2 Res ID 2831

The vast majority of Lefkowitz’s arguments are incomprehensible.

Many times throughout Lefkowitz’s motion, Lefkowitz makes arguments that are not supported by legal authority.

However, Tawansy’s Opposition is also not the model of clarity.

Tawansy simply argues that this motion for judgment on the pleadings is a repetition of prior demurrers and that the Court already rejected Lefkowitz’s arguments.

The Court notes that Tawansy cites no legal authority for his argument that just because a demurrer was filed on similar grounds, a motion for judgment on the pleadings cannot be filed. Tawansy simply points to the Court overruling each demurrer to each cause of action in the 10/18/2024 ruling wherein this Court overruled Lefkowitz’s demurrer to each cause of action.

Lefkowitz argues that the TACC cannot be enforced as it was a contract lasting more than one year and it was not in writing violating Cal. CCP 1624.

The Court notes that Lefkowitz likely meant to cite Civil Code § 1624(a)(1) which states, “The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof.” (Cal. Civ. Code § 1624(a)(1).)

Here, the Court will hear argument. Tawansy did not address Lefkowitz’s argument. That being said, Lefkowitz’s argument is not clear.

In relevant part, Tawansy alleged:

25. On or about December 18, 2015, Cross-Defendants entered into a[n] oral contract with the Cross-Complainantto hold Cross-Complainant's funds for his use and benefit, to expend those funds only as authorized by him and for his benefit, and to account for the funds held by them.

26. Cross-Defendants have breached their oral agreement with the Cross-Complainant and have not returned the money which Cross-Defendants are holding for the benefit of Cross-Complainant when a demand for return of the money was made on or about October 2018.

(TACC ¶¶ 25-26.)

The Court tentatively does not find Lefkowitz’s argument availing. Paragraph 25 of the TACC does not seem to indicate that by the terms of the agreement, the agreement is not to be performed within a year from the making thereof. Although it appears that Tawansy alleged the breach occurred in October 2018, the Court fails to see how the agreement could not have been performed within one year, as the terms of the alleged oral agreement say nothing about the time within which the contract could be performed.

All of Lefkowitz’s evidentiary arguments are unavailing. For example, Lefkowitz argues that Tawansy borrowed no funds, and that Tawansy never had the $2,000,000 or any portion of it in Tawansy’s hands or in an account under the name of Khaled A. Tawansy. (Mot. p. 3.) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).)

Lefkowitz’s statute of limitations arguments are also unavailing. Many of Lefkowitz’s arguments on the statutes of limitations are incomprehensible. To the extent that some of the arguments on the statutes of limitations are comprehensible, the Court encourages Lefkowitz to look at the ruling on the demurrer hearing that occurred on 10/18/2024. Lefkowitz’s arguments on the statutes of limitations for the causes of action in the TACC are unavailing.

Overall, for other arguments asserted in Lefkowitz’s motion, many of Lefkowitz’s arguments fall into the categories of: (1) Not being supported by legal authority, (2) The arguments being incomprehensible, (3) The arguments going beyond the pleadings, or (4) The arguments being unavailing.

Lefkowitz’s motion for judgment on the pleadings of the TACC is DENIED.

The Court notes that as of 3/24/2025, Lefkowitz has not filed a Reply. Any Reply submitted would be untimely.