Case Number: 19BBCV00276 Hearing Date: December 27, 2019 Dept: NCB

Superior Court of California
County of Los Angeles

North Central District
Department B

gary lefkowitz,

Plaintiff,

v.

khaled a. tawnsey, et al.,

Defendants.

Case No.: 19BBCV00276

Hearing Date: December 27, 2019

[TENTATIVE] order RE:

motion for leave to file amended answer;

motion to quash service of summons and complaint

BACKGROUND

A. Allegations and Background

Plaintiff Gary Lefkowitz (“Plaintiff”) alleges that Defendant Khaled A. Tawansy (“Dr. Tawansy”) operated on Plaintiff to repair detached retinas and performed a cataract surgery in 2014. Plaintiff alleges that Dr. Tawansy asked Plaintiff to assist him in real estate issues as an independent contractor. Plaintiff alleges as a result of the parties’ deals, Dr. Tawansy and various other defendants owe Plaintiff in excess of $3,000,000.

The complaint, filed April 2, 2019, alleges causes of action for: (1) breach of contract; (2) fraud; (3) RICO; (4) slander; and (5) libel.

B. Motions on Calendar

On December 3, 2019, Dr. Tawansy filed a motion for leave to amend his answer. Plaintiff filed an opposition on December 13, 2019. Dr. Tawansy filed a reply brief on December 19, 2019.

On December 3, 2019, Defendants Khaled A. Tawansy, M.D., Inc., a California corporation; Raymond Renaissance Surgery Center LLC, a California LLC; Renaissance Surgical Holdings LLC, a California LLC; Golden State Eye Center, Inc., a California Corporation; Golden State Eye Medical Group, Inc., a California corporation; 95 N. Arroyo LLC, a California LLC; Pacific Surgeons Alliance LLC, a Nevada LLC, incorrectly named in the Complaint as Pacific Surgery Group LLC; Bakersfield-SC LLC, a Delaware LLC; Tennessee Bakersfield Physicians Plaza Surgical Center LP, a Tennessee Limited Partnership, incorrectly named in the Complaint as Bakersfield Physicians Plaza Surgery Center; and Hopkins Surgery LLC, a Nevada LLC (collectively, the “Moving Defendants”) filed a motion to quash service of the summons and complaint. On December 13, 2019, Plaintiff filed an opposition to the motion. Defendants filed a reply brief on December 19, 2019.

MOTION FOR LEAVE TO FILE AMENDED ANSWER

a. Legal Standard

CCP §473(a)(1) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (CCP §576.)

CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530.)

b. Merits of Motion

Dr. Tawansy moves for leave to amend his answer. He filed his answer on April 30, 2019 and filed a notice of errata to the answer on July 5, 2019. A copy of the proposed amended answer is attached to the declaration of James A. Frieden, Esq., as Exhibit I.

In support of the motion, Dr. Tawansy provides the declaration of his counsel, Mr. Frieden. Mr. Frieden states that the effect of the amendment is to include new information in Affirmative Defendants 2 and 20 about interim suspension of Plaintiff’s license to practice law and the 2016 ruling of the California State Bar that he was “ordered in active.” (Frieden Decl., ¶1.) He states that the amendment is necessary and proper because Plaintiff requested the change. (Id., ¶2.) He states the facts giving rise to the amendment were disclosed by Plaintiff on November 16, 2019 when he sent a letter (Exhibit H), wherein he disclosed that the 2016 State Bar action ordering him inactive was not related to the interim suspension of 1995. (Id., ¶3, Ex. H.) Mr. Frieden states the amendment was not requested earlier because Plaintiff did not object to the Notice of Errata (filed July 5, 2019) until November 2019. (Id., ¶4, Ex. E.)

Based on the declaration of Mr. Friedent, Dr. Tawansy has shown there is substantive merit to granting this motion. The declaration satisfies the requirements under CRC Rule 3.1324. Further, courts should exercise great liberality in permitting amendments at any stage of the proceeding. (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) “[L]iberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense.” (Id.)

In opposition, Plaintiff argues that Dr. Tawansy is accusing him of being disbarred and committing crimes. He argues that Dr. Tawansy is attempting to use the Burbank Court to advance theories that deal with past crimes to hurt him and prevent him from making a living and support his family. He argues that the Court should instruct Dr. Tawansy to answer without any claims of extortion or any actions that would hurt Plaintiff. However, to the extent that Plaintiff believes any of the allegations of the answer are untrue or a violation of his rights, he should file an appropriate motion that addresses the pleadings or to disprove them at trial.

Accordingly, the Court grants Dr. Tawansy’s motion for leave to file an amended answer.
MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

Moving Defendants specially appear to quash service of the summons and complaint served on them. The Moving Defendants include: (1) Khaled A. Tawansy, M.D., Inc.; (2) Raymond Renaissance Surgery Center LLC; (3) Renaissance Surgical Holdings LLC; (4) Golden State Eye Center, Inc.; (5) Golden State Eye Medical Group, Inc.; (6) 95 N. Arroyo LLC; (7) Pacific Surgeons Alliance LLC; (8) Bakersfield-SC LLC; (9) Tennessee Bakersfield Physicians Plaza Surgical Center LP; and (10) Hopkins Surgery LLC.

Moving Defendants argue that personal service on Dr. Tawansy does not constitute proper service on these other entities.

a. Legal Standard

CCP §418.10(a) permits a defendant to serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the Court over the defendant. A motion to quash must be made on or before the last day of his or her time to plead, or within any further time the Court may for good cause allow. (CCP §418.10(a).)

b. Proofs of Service

Plaintiff filed proofs of service on June 7, 2019.

The proof of service on “Khaled A. Tawansy, M.D., A California Corporation” indicates that “Khaled A. Tawansy, Authorized Agent” was served at 7447 N. Figueroa St., Suite 200, Los Angeles, CA 90041 by personal service on May 14, 2019 at 12:26 p.m. The proofs of service for “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”, “Pacific Surgeons Group LLC, a Nevada LLC”, “Bakersfield-SC LLC, a Delaware LLC”, “Bakersfield Physicians Plaza Surgery Center, LP, a Tennessee Limited Partnership”, and “Hopkins Surgery LLC, a Nevada LLC” show that service was made in the same manner.

The Court notes that service was effectuated by Sanford Tumen, who is not a registered California process server. Thus, Evidence Code, §647’s presumption affecting the burden of producing evidence of the facts of return (i.e., that the Moving Defendants were properly served) do not apply.

c. Merits of Motion

Moving Defendants move to quash the service of the summons and complaint purportedly served on each of them.

In support of the motion, Dr. Tawansy provides his declaration. He states that Sanford Tumen served him with a single copy of the summons and complaint at his business address at 7447 N. Figueroa Street, Suite 200. (Tawansy Decl., ¶2, Ex. A [Summons].) He states that the summons does not notify him that he was being served in any representative capacity and that he believed he was only being served in his individual capacity. (Id.) He states that he later learned that Plaintiff filed 10 additional proofs of service, wherein Plaintiff claimed that service had been performed by Mr. Tumen with 10 copies of the summons and complaint. (Id., ¶3, Ex. C [Proofs of Service].) Dr. Tawansy states that he was not served with additional copies of the summons and complaint which addressed him as the agent authorized on behalf of any corporation or LLC on May 14, 2019 or any other day. (Id., ¶4.)

In opposition, Plaintiff argues that Moving Defendants’ motion is not supported by any declarations of people working at Dr. Tawansy’s office because no one would lie for him that Mr. Tumen was not in the office. Plaintiff provides his own declaration and the declarations of Mr. Tumen:

· In his May 14, 2019 declaration, Mr. Tumen states in his declaration that on May 14, 2019, he went to Dr. Tawansy’s office and informed Dr. Tawansy that he was serving him on behalf of a number of companies that he owns. (5/14/19 Tumen Decl., ¶3.) Mr. Tumen states that he told Dr. Tawansy that he was being served, he “placed the copies of the Complaint, Summons, and Civil Case Cover sheet on a ledge outside the office”, and informed Dr. Tawansy and a nurse that he was leaving copies of the summons and complaint. (Id., ¶¶4-5.)

· In his December 12, 2019 declaration, Mr. Tumen states that on May 14, 2019, Plaintiff drove him to Dr. Tawansy’s office. (12/12/19 Tumen Decl., ¶¶ 1-2.) He states he was given 10 copies of the summons and complaints for various corporations or LLCs to be served on Dr. Tawansy, and that he served Dr. Tawansy with the summons and complaints as to each of the 10 entities. (Id., ¶¶3, 7.) He states that Dr. Tawansy refused to take the documents and so he left them on the ground in front of Dr. Tawansy. (Id., ¶9.)

· Plaintiff states that he drove Mr. Tumen to Dr. Tawansy’s office on May 14, 2019 and that he made 10 copies of the summons and complaint as to each defendant. (Pl.’s Decl., ¶¶3, 5.) He states that Mr. Tumen took in 10 copies of the documents and returned with no copies. (Id., ¶¶7-8.)

As stated above, service was not effectuated by a registered process server. “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.)

Here, Dr. Tawansy does not deny that he was individually and personally served with a copy of the summons and complaint. However, the motion is not about Dr. Tawansy, but instead about the Moving Defendants, which are 10 corporate entities.

Though Plaintiff has provided declaration testimony by himself and Mr. Tumen, there are some issues with Mr. Tumen’s statements that raise doubts about his credibility. For example, in his May 14, 2019 declaration, Mr. Tumen does not state that he served Dr. Tawansy with 11 copies of the summons and complaint (i.e., 1 for Dr. Tawansy as an individual and 10 copies for the 10 corporate entities). Even if the Court were to take the truth of Mr. Tumen’s December declaration and Plaintiff’s declaration, it is unclear which of the 11 defendants were actually served if there were only 10 copies of the documents given to Dr. Tawansy. Next, Mr. Tumin states that he left the documents on a ledge outside the office in his May declaration, but in his December declaration he states that he left the documents on the ground in front of Dr. Tawansy. Though this may be a minor inconsistency, this still raises questions about whether Mr. Tumin correctly recalled the events of the day (including the number of copies of documents served) and thus the truth of the December declaration. Finally, Plaintiff does not provide any documentary or declaration evidence showing that Dr. Tawansy was served with documents on behalf of each separate corporate Moving Defendant, that he was told that he was being served on behalf of each one by name.

Finally, to address Plaintiff’s argument that Dr. Tawansy is unable to provide any declarations from his staff members about whether or not they witnessed the service, in reply, Dr. Tawansy provides the declaration of Patricia Padilla. Ms. Padilla is an office administrator at the 7447 N. Figueroa Street, Suite 200, address and she states she was at the office on May 14, 2019. (Padilla Decl., ¶¶1-2.) She states that ordinarily accepts service on Dr. Tawansy’s behalf and she did not receive any documents from Plaintiff against Dr. Tawansy or 10 copies thereof (which would amount to 10 copies of 190-page documents), who she was familiar with as a patient of Dr. Tawansy. (Id., ¶¶3-5.) Ms. Padilla states that to the extent any documents were placed on a ledge outside the office according to Mr. Tumen’s May 14, 2019 declaration, she would have seen and received those documents at the front desk. (Id., ¶6.) She also states that to the extent that any documents (or a stack of 10 documents) were placed on the floor according to Mr. Tumen’s December 12, 2019 declaration, she too would have seen and received the documents. (Id., ¶7.) Thus, she states it was unlikely that the 10 summons and complaints were actually served by Mr. Tumen. (Id.)

Thus, the Court does not find that Plaintiff has upheld his burden in showing that service was properly effectuated on each of the Moving Defendants. Thus, the motion to quash the service of the summons and complaint is granted.

CONCLUSION AND ORDER

Dr. Tawansy’s motion for leave to file an amended answer is granted. Dr. Tawansy is ordered to electronically file a separate version of the first amended answer with the Court by this date following the hearing on the matter.

The Moving Defendants Khaled A. Tawansy, M.D., Inc.; Raymond Renaissance Surgery Center LLC; Renaissance Surgical Holdings LLC; Golden State Eye Center, Inc.; Golden State Eye Medical Group, Inc.; 95 N. Arroyo LLC; Pacific Surgeons Alliance LLC; Bakersfield-SC LLC; Tennessee Bakersfield Physicians Plaza Surgical Center LP; and Hopkins Surgery LLC’s motion to quash service of the summons and complaint served on them is granted.

Defendants shall provide notice of this order.