Filed 3/15/24 ACMC Finance and Trade v. Khachatryan CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ACMC FINANCE AND TRADE LLC

,

Plaintiff and Respondent

,

v.

SARGIS KHACHATRYAN et al.,

Defendant s and Appellants

. B 321981

(Los Angeles County Super. Ct. No. 19LBCV00725 )

APPEAL from order s of the Superior Court of Los Angeles County

, Mark C. Kim, Judge. Affirmed

. Grand Park Law Group and Armand J. Jaafari ; Thomas Vogele & Associates, Thomas A. Vogele and Timothy M. Kowal
for Defendants and Appellant s

. Kluewer Law and Joshua T. Kluewer for Plaintiff and Respondent.

____ _______ _____________2 INTRODUCTION

Sargis Khachatryan (a.k.a. Sam Saryan), Sona Apikian (a.k.a. Sona Saryan), and Gianni Saryan 1 (collectively, Appellants) appeal the trial court’s order denying their motion s to set aside default and default judgment under Code of Civil
Procedure section 473.5

. 2 In September 2017 Energy Product Company LLC and Energy Trading Company LLC (Energy Trading)

— two oil companies allegedly controlled by Appellants and their family

— received a $2,450,000 loan from OSA Finance and Trade

. T his loan was never repaid

. In 2019 ACMC Finance and Trade (AC MC) , an affiliate of OSA Finance and Trade, sued Energy Trading , Appellants, Jack Khachatryan (a.k.a. Jack Saryan)

, and others seeking repayment of the loan. ACMC attempted to serve Appellants personally, but could not locate Appellants even after hiring two private investigative firms

. ACMC’s investigators both independently concluded Appellants were “ intentionally hiding their whereabouts.” ACMC ultimately served Appellants by publication . When Appellants’ immediate relative, Jack Khachatryan

, answere d ACMC’s complaint in February 2021,

1 Gianni Saryan’s first name is spelled “Gianna” in this court’s case caption, but most of the record reflects the spelling “Gianni.” We use “Gianni” as it is the predominant spelling in the record.

2 Undesignated statutory references a re to the Code of Civil Procedure.3

ACMC requested discovery of Appellants’ addresses, but Jack refused to provide them

. 3 ACMC requested entry of Appellants’ default in March
2021 and then obtained a default judgment against them in October 2021. Appel lants appeared and moved to set aside the default in March 2022 , asserting they lacked actual notice under
section 473.5

. The trial court denied their motion , among other

reasons, because Appellants had failed to demonstrate any lack of
actual notice had not resulted from their avoidance of service of process or their inexcusable neglect. Appellants argue the trial court erred. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint On December 20, 2019 ACMC sued Energy Tradin g Company LLC ; Jack; App ellants Apikian

, Sargis , and Saryan; John Davids, and Dennis Rogers Jr

. According to the complaint,
Jack and Appellants are the owner s of Energy Trading

. Jack is
the father of Saryan and husband of Apikian; Sargis is Jack’s
brother. ACMC alleged its pred ecessor, OSA Finance and Trade
LLC

, loaned $2,450,000 to Energy Product Company LLC in September 2017. 4 The loan was executed via a “Joint Finance

3 Since Jack and Appellant Sargis Khachatryan share the same last name, we refer to them by their first names. Our use of first names is for clarity only and we intend no disrespect.

4 OSA Finance and Trade LLC assigne d to ACMC Finance all claims in connection with the Energy Trading loan agreements

.4

Agreement ,” signed by “Jack Saryan / Gianni Saryan” with “the authority to bind Energy Product Company, LLC. ” Davids and Rogers “acted as intermediaries” in the negotiation of the loan. Return of the principal was due in 30 days, along with 2 percent
interest. As the loan became due, ACMC alleged , Jack and Saryan
claimed the signature on the loan agreement was a forger y and asked for more time to repay the loan

. The parties executed another loan agreement in December 2017, allowing another of
Jack’s companies, Energy Trading Company LLC , to assume responsibility for the loan and repay it over a longer period o f
time . Under the second loan agreement, the loan was to be paid in full by September 2018. According to ACMC, Energy Trading soon stopped making payments on the loan. The complaint alleged “ [Jack] Khachatryan and Khachatryan’s family members

— Sargis, Son a and Gianni

— own and/or control Energy Product and Energy Trading and have participated in a scheme to strip these entities of their assets while misappropriating the relevant loan proceeds for
themselves.” ACMC alleged 12 causes of action: breach of

cont ract, money had and received, unjust enrichment, common count for money lent, promissory fraud, fraud through intentional misrepresentation, negligent misrepresentation, conversion, intentional interference with contractual relations, intentional
fraudulen t transfers and constructive fraudulent transfers under the Uniform Voidable Transactions Act, and civil conspiracy. The complaint requested damages “in the amount of $2,450,000 plus costs, fees, punitive damages and interest.”5

B. Service of Process by Publ ication On May 7, 2020 ACMC filed an application to serve the
individual defendants

— Jack and Sargis Khachatryan, Apikian, and Saryan

— by publication. The application stated that ACMC “first attempted to serve the summons and complaint on all four of the [i ndividual] Defendants at Energy Trading Company LLC’s (“Energy Trading”) principal place of business, ” in Long Beach

,

“ an address with which all four [individual] Defendants are
associated.” Process servers, however, were unable to locate any of the Appel lants at this address. “Thereafter, ACMC engaged two separate private investigative firms to locate all four of the [individual] Defendants.” Both investigative firms conducted background checks and identified potential addresses for each of the Appellan ts but were unable to locate Appellants at any of the
addresses. Attached to the application were declarations from the private investigators hired by ACMC. The first declaration was from Sarah Byrnes, a licensed private investigator and the head
of the I nvestigation Practice at Mega Group Investigations

, which ACMC retained in January 2020

. Byrnes personally
visited five recent potential addresses for Appellants in Beverly Hills, Los Angeles, and Long Beach but could not locate Appellants

. Byrnes noted Sargis “uses three social security numbers and has comingled social security numbers and dates of
birth with other individuals.” Based on her efforts

, Byrnes
concluded that Appellants “are all intentionally hiding their whereabouts and are intentionally m aking themselves difficult or impossible to locate.”
The second declaration was from Paul Dryman, another licensed private investigator and the president and CEO of6

Informed Decision, a n investigation corporation ACMC hired in
December 2019

. Dryman “condu cted several database searches utilizing privileged sources not available to the public, and used public records and social media resources in order to attempt to locate Jack, Sona, Sargis, and Gianni.” From this research, Dryman learned Appellants “were each potentially associated with . . . three addresses” in Beverly Hills and Long Beach. Dryman’s process servers were unable to serve Appellants at any
of these addresses and learned “these addresses were no longer good addresses for [Appellants].” Drym an believed Appellants were “intentionally hiding their whereabouts.”
On this basis , ACMC asserted it exercised “reasonable diligence” in attempting to personally serv e Appellants and thus service by publication was proper. The trial court agreed and

gran ted ACMC’s motion to serve Appellants by publication on May 13, 2020. On July 2, 9, 16, and 23, 2020 ACMC served Appellants by publication in the Grunion Gazette, a newspaper based in Long Beach.

C. The First Amended Complaint and Service by Publication
In August 2020 , after defendant Rogers demurred to the allegations against him, ACMC filed a first amended complaint (FAC). As relevant here , the FAC contained three changes from the original complaint. First, the FAC omitted a claim for unjust
enrichment

. Second, the FAC added a new cause of action for “Common Count to Recover Money Paid by Mistake and Fraud” against all defendants. Third

, the introductory paragraph in the FAC alleged the defendants “agreed to a common plan to take OSA’s money” and “are a ll liable for each other’s torts and liabilities per the doctrine of civil conspiracy.” The original7

complaint contained these allegations in the cause of action for civil conspiracy. After filing the FAC, ACMC obtained a second summons and again served A ppellants by publication in the Grunion
Gazette on October 29, November 5, November 12, and
November 19, 2020. ACMC republished the summons in the Grunion Gazette on February 4, 11, 18, and 25, 2021. Th e February publication included a statement of damag es against each Appellant.

D. Communications Between Counsel About the Lawsuit and Appellants’ Addresses
In late January 2021 counsel for Jack , Paul Fine, contacted
counsel for ACMC by email about the case

. Fine wrote : “I have been retained by Jack Saryan and Gianni Saryan to represent their interests in the subject litigation. I will speak with Sona Saryan and Sam Khachatryan to determine if I will additionally be representing their interests.” ACMC’s counsel responded : “[I]f you could please send us
hom e addresses for each Jack Khachatryan a/k/a Jack Saryan, Gianni[] Saryan, Sona Apikian a/k/a/ Sona Saryan and Sargis Khachatryan a/k/a Sam Saryan that would be much appreciated.

. . . [W]e would like to respect their due process rights and having their ad dresses such that we can hand deliver
documents will allow us to do that.”
Fine replied: “I will request authority to provide that information to you. At present, I need to make sure that I will not have a conflict of interest in representing the individ uals. ” ACMC did not receive any further informatio n , although the
record before us does not reflect ACMC followed up with Fine

.8 Shortly after this exchange , Jack and Energy Trading entered an appearance on February 16, 2021 and answered ACMC’s complaint

. ACMC sought discovery from Jack pertaining to Appellants’ home addresses, but he refused to
disclose any information about where his wife, son , or brother

w ere living. The court eventually imposed terminating sanctions against Jack “due to [his] ongoing failure to provide basic responses about, among other things, his family’s whereabouts.”

E. The Default Judgment
On March 29, 2021 ACMC filed a request for entry of default against Appellants using Judicial Council form CIV

- 100

. Where form CIV

- 100 asked for the date of “the complaint, ” ACMC indicated December 20, 2019, the date of the original complaint,
rather than the FAC. The clerk entered default for ACMC

. On October 13, 2021 ACMC requested a default judgment against Appellants. After a default prove

- u p hearing, the trial court entered judgment for ACMC against Appellants on October 18, 2021

. The default judgment awarded ACMC $2,450,000 in damages, $405

, 626.03 in prejudgment interest, and $1

, 275.45 in costs. The trial court held Appellants jointly and severally liable for the judgment.

F. Appellants’ Motion s to Set Aside the Default Judgment On March 24, 2022 Appellants, through counsel, each filed
a motion to set aside the default and default judgment. As relevant here, A ppellants argued the judgment w as void under section 473, subdivision (d) ; they lacked actual notice of the
action under section 473.5 because the summons was published
in a “locale . . . inadequate to provide notic e; ” and the y did not file9

an answer because of their “ attorney’s mistake , inadvertence, surprise or excusable neglect.” They also asserted ACMC improperly requested entry of default on the original complaint,
rather than the FAC. Finally, they argued ACMC failed to exercise reasonable diligenc e in attempting personal service before serving Appellants by publication. Appellants filed separate

, identical declarations stating : “I have been a resident in the City of Los Angeles for over five (5) years and have never been a resident in the City of Long Beach. [¶] I do not live with Jack Saryan [ a

. k

. a

. Jack Khachatryan] and was unaware of this action. [¶] There were no communications ever made to me that there were any attempts to serve me in this action. [¶] Upon receiving a notification that Plaintiff moved for default judg ment, I promptly retained counsel. ”
The trial court denied Appellants’ motions on March 25,
2022 “for numerous reasons.” The court first denied the motions
as “confusin g, often meandering between code sections in a way that is not conducive to analysis.” As to relief under
section 473.5, the court observed “a motion brought per § 473.5 must be accompanied by an ‘affidavit showing under oath that the party’s lack of actual notice in time to defend the action was
not caused by his or her avoidance of servic e or inexcusable neglect.’ [Appellants] filed no such declaration.” While the
motion asserted relief for defense couns e l ’s “excusable neglect

, ” the court “reviewed Counsel’s declaration in this regard,” noting it was “a mere four paragraphs long” and “sa ys absolutely nothing about neglect, and therefore cannot support relief.” Considering Appellants’ challenge to publication in the
Grunion Gazette , the court reaffirmed “ its prior decision to permit service by publication ” and noted Appellants “ do[] not ci te10

any authority for the position that, if a publication order was issued in error, the resulting default and default judgment are
void.” The court further observed Appellants “suggest[] [ACMC] should have ascertained [their] whereabouts by ‘simple discov ery’ propounded on Jack Saryan and/or Energy Trading,” but Appellants disclaimed any relationship to Energy Trading and Saryan had refused t o disclose Appellants’ addresses. Finally, the court rejected Appellants’ argument that the
default judgment was err oneously entered on the original complaint, rather than the FAC. The court further explained
that “Plaintiff’s FAC only changed allegations as to Rogers, who had demurrer, and not as to [Appellants] , who had not appeared.

. . . [W]hen the complaint and FA C contain the same substantive allegations against a defendant, any failure to specifically note ‘first amended’ on the default form is not
material.” The court ordered ACMC to give notice of its ruling

. ACMC served Appellants on April 14, 2022 with a “No tice Pertaining to Ruling on [Appellants’] Motion to Vacate the Default and Default Judgments.” Attached was a file

- stamped and signed copy of the trial court’s order denying Appellants’ motions to set aside the default and default judgment. ACMC attache d a proof of service indicating Appellants’ counsel was served with the “Notice Pertaining to Ruling.”

G. Appellants’ Motion s for Reconsideration
On April 12 , 2022 , pursuant to section 1008, Appellants
moved for reconsideration of the trial court’s order den ying their
motions to set aside the default judgment.11 Accompanying the motion s was a new declaration from
Paul Fine , Jack ’s attorney. Fine declared: “On or around January 22, 2021, counsel for [ACMC] and I spoke regarding the representation of Jack Sarya n, Gianni Saryan, Sona Apikian and Sam Khachatryan. To the best of my recollection, I told [ACMC’s counsel] that I had been retained by Jack Saryan and the company, but that I would speak with Gianni Saryan, Sona Apikian and Sam Khachatryan about possible representation. However, I never spoke with Gianni Saryan, Sona Apikian and Sam Khachatryan and instead informed Jack Saryan shortly after our January 22, 2021 meeting that I could not represent Gianni Saryan, Soan Apikian and Sam Khachatryan in this

mat ter and that they needed to locate separate counsel. I never spoke with Gianni Saryan, Sona Apikian and Sam Khachatryan
about this matter.” In addition, Appellants attached a declaration from their attorney stating that any deficiencies in Appellants’ pri or declarations and any “confusion” between legal arguments were the result of counsel’s “mistake, inadvertence, surprise, and excusable neglect.” Appellants also included updated individual declarations, adding the following language: “I did not have an y actual notice of this action. The lack of notice was not caused by my inexcusable neglect or deliberate avoidance of service by me.”
The trial court summarily denied Appellants’ motions on June 21, 2022 “on the ground that the Court has no jurisdiction to reconsider its prior ruling in light of the fact that judgment has already been entered.” Appellants filed notices of appeal on July 7, 2022.12 DISCUSSION

Appellants raise two primary arguments on appeal

. First, Appellants challenge service by publica tion and contend that the FAC made substantive amendments that “re

- opened” the default, which in their view required a new attempt at personal service

. 5 Second, they argue the court erroneously denied their motions to
set aside the default judgment and th eir subsequent motion s for
reconsideration

. 6 But first, we address the timeliness of the appeal.

A. Timeliness of Appeal
ACMC argues we lack jurisdiction over this case because Appellant s did not file a timely notice of appeal

. (See Hollister
Convalescent Hospital , Inc. v. Rico (1975) 15 Cal.3d 660, 670 [“[T]he timely filing of an appropriate notice of appeal

. . . is an

5 O n reply , but not in their opening brief , Appellants argue the default judgment is void under section 473, subdivision (d). “We do not consider arguments raised for the first time in a reply brief.” ( Committee to Relocate Marilyn v. City of Palm Springs (2023) 88 Cal.App.5th 607, 636, fn. 8 ; Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 [“Issues not raised in the appellant’s opening brief a re deemed waived or abandoned.”]. )

6 Appellants also seem to challenge the trial court’s personal jurisdiction over them. The trial court does not appear to have made any ruling on the matter, nor does the record before us reflect Appellants filed a moti on to challenge personal jurisdiction. For this reason, we need not address this argument on appeal, including whether Appellants’ post

- default participation in the litigation waived any such objection

.13

absolute prerequisite to the exercise of appellate jurisdiction.”].) ACMC’s argument is unpersuasive. Under California Rule s of
Court , r ule 8.104(a)(1) (B) and (C) : “ a notice of appeal must be
filed on or before the earliest of: 60 days after the party filing the notice of appeal serves or is served by a party with a document
entitled ‘ Notice of Entry ’ of judgment or a filed

- endorsed copy of the judgment, accompanied by proof of service ; or 180 days after entry of judgment.” 7 ACMC argues it served Appellants on April 14, 2022 with notice of the trial court’s order denying their motions to set aside the default judgment, triggering Appella nts’
deadline to file the notices of appeal within 60 days. ACMC did not serve a proper notice commencing the
60

- day deadline because it did not serve Appellants with “a document entitled ‘Notice of Entry’ of judgment,” but instead
served a “Notice Pertain ing to Ruling on [Appellants’] Motion to Vacate the Default and Default Judgments.” (See Cal. Rules of Court, r ule 8.104(a)(1)(B); Alan v. American Honda Motor Co.,
Inc. (2007) 40 Cal.4th 894, 903 [“[C]ourts have consistently held that the required ‘docum ent entitled “Notice of Entry”’ must bear precisely that title.”] [citation omitted]; 20 th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 671

- 672 [document titled “‘notice of ruling,’ not ‘notice of entry’” was insufficient].)
Nor did ACMC serve Appellants with “a filed

- endorsed copy of the judgment, accompanied by proof of service.” (Cal. Rules of Court, r ule 8.104(a)(1)(B).) Although ACMC’s notice included a
filed

- endorsed copy of the trial court’s order, ACMC’s proof of

7 For purposes of this rule, “‘judgment’ includes an appealable order if the appeal is from an appealable order.” (Cal. Rules of Court, r ule 8.104(e).)14

service reflecte d that it had served Appellants with its “Notice Pertaining to Ruling,” but did not indicate service of the court’s order. (See Thiara v. Pacific Coast Khalsa Diwan Society (2010)
182 Cal.App.4th 51, 56 [rule 8.104(a)(2) not satisfied without an adequate proof of service “setting forth specified information” in the rule]; see also In re Marriage of Lin (2014) 225 Cal.App.4th 471, 47 4 [“[W]e strictly construe statutes and rules concerning the time in which to file a notice of appeal

. ”].) Accordingly, Appell ants’ notices of appeal were timely filed within 180 days of the order appealed under California Rule s of
Court , rule 8.104 (a)(1)(C ). 8

B. The Trial Court Did Not Err by Authorizing Service by
Publication Appellants contend they were improperly served by pub lication because ACMC failed to attempt personal service with reasonable diligence, and because publication was in a Long Beach newspaper

. 9

8 Although neither party raised California Rule s of Court, rule 8.108 (e) , the appeal is also timely under that rule , which

governs the time to appeal w hen a “valid motion to reconsider an appealable order” is filed . Appellants moved for reconsideration

on April 12, 2022 and the court denied their motions on June 21. Appellants’ notices of appeal were filed 16 days later on July 7, well within all appli cable deadlines provided by rule 8.108(e).

9 The trial court’s publication order did not include language required by section 415.50, subdivision (b), “direct[ing] that a copy of the summons, the complaint, and the order for publication be forthwith maile d to the party if his or her address is ascertained before expiration of the time prescribed for15 1. Legal Background and Standard of Review “Section 415.10 et seq. governs the manner of service of a
summons. A summo ns may be served by various methods. If service of a summons by other means proves impossible, service may be effected by publication, upon the trial court’s approval. [Citation.] Section 415.50 governs this method of service.” ( Rios v. Singh (2021) 65 Cal.App.5th 871, 880 ( Rios ) .)
Section 415.50, subdivision (a), provides for service by publication “if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner.”
Subdivision (b) mandates that “[t]he court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served.” (§ 415.50, subd. (b).)
We review for substantial evidence the trial court’s determination that ACMC exercised reasonable diligence and that the Grunion Gazette was the newspaper most likely to give notice. (See Giorgio v. Synergy Management Group, LLC (2014) 231 Cal.App.4th 241 , 248

- 249; accord, Rios

, supra , 65 Cal.App.5th at pp. 880

- 881.)

publication of the summons.” Appellants d id not challenge th is omission in the trial court or on appeal, forfeit ing any objection

. (See In re S.B. (2004) 32 Cal.4th 1287, 1293

, fn. 2 [“a person who fails to preserve a claim forfeits that claim”] ; see also Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 554

- 555 [review on appeal “‘“is limited to issues which have been adequately ra ised”’”].)16 2. ACMC Exercised Reasonable Diligence Substantial evidence supports the trial court’s ruling that ACMC demonstrated reasonable diligence in attempting methods of service other than publicatio n. “‘The term “ reasonable diligence ” . . . denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney.’” ( Watts v. Crawford (1995) 10 Cal.4th 743, 74 9 , fn. 5.) “A number of honest attempts to l earn the defendant’s whereabouts through inquiry and investigation generally are
sufficient. . .

. The question is whether the plaintiff took the steps a reasonable person who truly desired to give notice of the
action would have taken under the circumsta nces.” ( Rios

, supra , 65 Cal.App.5th at p. 880.) The detailed declarations ACMC filed
demonstrated it attempted to serve Appellants at Energy Trading’s principal place of business but did not succeed

. Substantial evidence also supports ACMC’s reasonable
d iligence in attempting to obtain additional addresses for Appellants. ACMC hired two different private investigation firms, both of which conducted “extensive background searches” across “several database[s],” including “public records,” “social
media res ources,” and “privileged sources not available to the public.” Once all potential addresses associated with Appellants were ascertained, the investigators “personally visited” these five addresses in an attempt to effect personal service. These efforts

w ere sufficient to show reasonable diligence. (See Rios

, supra , 65 Cal.App.5th at pp. 876, 881 [reasonable diligence established where plaintiff hired two differed private investigators “to locate and serve” the defendant “and they made numerous attempts t o effectuate service”] ; Giorgio v. Synergy Management Group, LLC

, supra , 231 Cal.App.4th at p p . 248

- 249 [reasonable diligence17

where plaintiff “conducted a search for any addresses associated with [defendant]” and attempted personal service on that
address ] .)

3. Substantial Evidence Also Supports the Trial Court’s Order Authorizing Service by Publication in a Long Beach Newspaper Substantial evidence supported publication in a Long Beach newspaper because it was “most likely to give actual notice” to Appellant s. (§ 415.50, subd. (b).) Appellants argue that they have no connection or nexus to Long Beach, so publication i n a Los Angeles or Beverly Hills newspaper was most likely to convey actual notice. 10 We are unpersuaded. In its application for service by p ublication, ACMC included a declaration attesting that Appellants were “associated with Energy Trading, whose principal place of business is [in] Long Beach.” Additionally, the declarations from ACMC’s private investigators confirmed that each of the Appe llants was
associated in public records , private databases, and social media

resources with Energy Trading’s principal place of business in Long Beach. While the investigation revealed Appellants had previously been associated with addresses in Beverly Hi lls and Los Angeles, the investigation further confirmed that Appellants were no longer located at those addresses. (See Giorgio v. Synergy Management Group, LLC

, supra , 231 Cal.App.4th at

p. 249 [affirming newspaper was most likely to give actual notice

10 Appellants do not argue that a different Long Beach

newspaper other than the Grunion Gazette was more likely to convey actual notice.18

where plaintiff “had reason to know [defendant] resided at” a
Los Angeles address, so “substantial evidence supported . . . election of a newspaper in Los Angeles”] .) Appellants rely on Olvera v. Olvera (1991) 232 Cal.App.3d 32, where service by publicatio n was improper because “[n]othing in the affidavit, or in the more detailed facts before the trial court, supported the election of th[e] newspaper” where the summons was published. ( Id. at p. 43 .) There , plaintiffs “repeatedly” acknowledged the defendan t “was no longer in
Riverside and admitted

. . . that she received mail in Pismo Beach,” but they served the defendant with publication in a Riverside paper. ( Ibid. ) By contrast, here the affidavits established Appellants’ connection with the ir business’ s address in Long Beach and supported the choice of a Long Beach publication

. Although a major regional newspaper might have been preferable, we cannot say that no substantial evidence supports the trial court’s order authorizing service by publication
in Long Beach

.

4. ACMC Was Not Required To Obtain a Second Order Authorizing Service by Publication of the FAC Appellants assert ACMC “re

- opened the default” by filing the FAC because it contained material changes to the complaint on which the default was pur portedly entered. “After a defendant’s default has been entered, if ‘“a complaint is amended in matter of substance as distinguished from mere matter of form, the amendment opens the default, and unless the amended pleading be served on the defaulting def endant, no judgment can properly be entered on the default.”’” ( Paterra v. Hansen (2021)19

64 Cal.App.5th 507, 529.) This argument lacks merit for a
number of reasons. First, we agree with ACMC that Appellants forfeited this argument by failing to raise it in the trial court. (See Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 371, fn. 8 [arguments not raised in the trial court are deemed waived].) But even if the argument were preserved, contrary to Appellant’s steadfast representations, t he FAC was filed before the entry of Appellants’ default, not after. Appellants argue they were entitled to personal service of the FAC, cit ing Engebretson & Co. v. Harrison (1981)
125 Cal.App.3d 436 . But Engebretson merely held that an amended complaint must be served “in the manner provided for
service of summons .” ( Id. at p. 443.) And indeed Appellants were
served by publication after the FAC was filed : in November 2020 and again in February 2021

. Appellants cite no authority that ACMC was required to obtain a second publication order to serve the FAC after the trial court had already determined that service by publication was proper. What is more, we agree with the trial court that “the complaint and FAC contain the same substantive allegations agai nst [Appellants]

, ” and any error in designating the correct filing date of the complaint on the request for default judgment

was not prejudicial

. (See Rodriguez v. Henard (2009)
174 Cal.App.4th 529, 536

- 538 [ affirming default judgment
because incorrect zi p code in default packet did not prejudice
defendant ] ; In re Marriage of Harris (1977) 74 Cal.App.3d 98,
102

- 103 [declining to set aside default judgment where error in default packet was not prejudicial] .)20

C. The Trial Court Properly Den ied Appellants’ Mo tion s to Vacate the Default and Default Judgment
The trial court did not abuse its discretion by denying Appellants’ motion s to set aside the default and default judgment

or the ir subsequent motion s for reconsideration

. Appellants specifically challenge d enial of relief under section s 473.5 and 473, subdivision (b).

1. The Trial Court Did Not Abuse Its Discretion In Denying Appellants ’ Section 473.5 Motion

a. Legal b ackground and s tandard of r eview
Section 473.5, subdivision (a), provides: “When service of a

s ummons 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 a nd file a notice of motion to set aside the default or default judgme nt and for leave to defend the action. ” The section 473.5 motion must “be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable

n eglect.” ( Id. , subd. (b).) The moving party bears the “burden of showing that [ its ] lack of actual notice was not caused by

. . . avoidance of service or inexcusable neglect.” ( Rios , supra, 65 Cal.App.5th at p. 885.)
We review t he trial court’s ruling o n a section 473.5 motion
for abuse of discretion. ( See Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894,
907 ; accord, Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852,
861. )21 b. Appellants f

ailed t o m eet t heir b urd en u nder

s ection 473.5
The trial court denied Appellants’ section 473.5 motion
because Appellants “filed no

. . . declaration” asserting their “ ‘ lack of actual notice in time to defend the action was not caused by his
or her avoidance of service or inexcus able neglect

. ’ ” Appellants appear to read this statement to mean that the trial court did not review their declarations, but the more reasonable reading is that the trial court determined that Appellants filed no declarations meeting the statutory standar d

. And indeed the declarations do not meet Appellants’ burden of demonstrating facts supporting their contention that

any “ ‘ lack of actual notice in time to defend the action was not caused by [their] avoidance of service or inexcusable neglect. ’ ” Appella nts filed separate identical declarations: “I have been a resident in the City of Los Angeles for over five (5) years and have never been a resident in the City of Long Beach. [¶] I do not live with Jack Saryan [a.k.a. Jack Khachatryan] and was

unaware of this action. [¶] There were no communications ever made to me that there were any attempts to serve me in this action. [¶] Upon receiving a notification that Plaintiff moved for default judgment, I promptly retained counsel.” As Appellants’ counsel conceded at oral argument, t hese
declarations failed to state any supporting facts about when and how Appellants learned about the case or how diligently Appellants responded to this knowledge

. Appellants argue that reciting the statutory language is all that is required to obtain relief, but the case law is clear that “conclusory” declarations without supporting facts cannot support relief. (See Rios

, supra , 65 Cal.App.5th at p p . 885

- 886 [affirming denial of § 473.5 motion22

where movant’s “conclusory decl aration does not satisfy his
burden” without stating “any supporting facts” ] ; Sakaguchi v. Sakaguchi , supra, 173 Cal.App.4th at pp. 861

- 862 [affirming
denial of § 473.5 motion where affidavit did not “show that any lack of knowledge was caused by excusable neglect”]; Anastos v.
Lee (2004) 118 Cal.App.4th 1314, 1319 [“declaration of counsel failed to show that any inferred lack of notice was not caused by defendants’ avoidance or inexcusable neglect

. . . . Absent a proper
affidavit or declaration that the de fendants’ lack of actual notice was not caused by inexcusable neglect or avoidance of service, the trial court properly denied the defendants’ motion”].)
Further

, the declarations were deficient given the evidence
before the trial court that Appellants had actual notice of the
lawsuit in time to defend. ACMC introduced communications suggesting Appellants were seeking counsel for the case in January 2021 , two months before default was entered, nine months before entry of the default judgment, and 14 months before they filed to set aside the default in March 2022

. ( See Ellard v. Conway (2001) 94 Cal.App.4th 540, 548 [ § 473.5 motion properly denied where movants had communicated with an attorney about the case before default was entered against them,
because they possessed “actual notice of the action in time to
defend ” and “ their failure to answer was a result of inexcusable neglect”] ; accord

, Rios , supra, 65 Cal.App.5th at p. 885 [ affirming
denial of § 473.5 relief where movant communicated with opposing co unsel about litigation , showing his actual notice “in time to file an answer or other response to the complaint and avoid the entry of a default” ]. ) Appellants’ declarations provided no facts that rebutted
evidence before the trial court that Appellants avoided service.23

(See Rios

, supra , 65 Cal.App.5th at p. 885 [affirming denial of § 473.5 motion where movant’s “declaration did not state any supporting facts” showing “his lack of actual notice was not caused by his avoidance of service” and movant “did not reference evidence that he avoided attempts to serve him”].) There was
evidence that each of the Appellants had vacated their last
known personal and business addresses at the time of the
lawsuit , leading two separate private investigators to conclude Appellants were “intentionally hiding their whereabouts

. ” (See
Tunis v. Barrow (1986) 184 Cal.App.3d 1069

, 1079 [ movant who
moved out of state showed lack of actual notice was not caused by
avoidance of service because h e “did not conceal his
whereabouts ” ] .) And there was evidence , noted by the trial court, that Jack Khachatryan withheld their current addresses from
ACMC

.

2. The Trial Court Properly Denied Appellants Relief Under Section 473(b) Section 473, subdivision (b) , provides for relief from a
defau lt judgment due to “ mistake, inadvertence, surprise, or excusable neglect.” The statute “‘mandates relief from a judgment of dismissal or default when the motion is based on an attorney’s affidavit of fault . . . . In all other cases, relief is
discretion ary.’” ( Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25

- 26.) The trial court denied Appellants relief under
section 473, subdivision (b), because Appellants’ counsel’s
declaration “sa [id] absolutely nothing about neglect, and therefore cannot supp ort relief.” The trial court did not err

. T o warrant relief, counsel’s affidavit must include an “admission by counsel for the moving party that his error resulted in the entry24

of a default.” ( State Farm Fire & Casualty Co. v. Pietak (2001)
90 Cal.App.4 th 600, 609; accord, Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) Here, c ounsel’s declaration did not mention any error at all.

3. The Trial Court Did Not Err By Denying Appellants’
Motion s for Reconsideration Appellant s also challenge the trial court’s denial of their
motion s to reconsider its order denying relief from the default judgment

. The trial court did not err by denying Appellants’
motions for reconsideration. 11
Section 1008 “ governs reconsideration of court or ders” and provides , as relevant here: “[A]ny party affected by [an] order may, . . . based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order,

11 The trial court denied the motions because it believed it had “no jurisdiction to reconsider its prior ruling in light of the fact that judgment has already been entered.” But courts have entertained motions for reconsideration of an order denying relief under section 473.5 , where a default judgment has been entered

. (See, e.g., Rios

, supra , 65 Cal.App.5 th at p. 879; Tunis v. Barrow

, supra , 184 Cal.App.3d at p. 1075 ; see also Northridge Financial Corp. v. Hamblin (1975) 48 Cal.App.3d 819, 825 [“‘The motion to reconsider has also been recognized by the reviewing courts where it is in the nature of a motion seeking relief under the provisions of Code of Civil Procedure section 473.’”]. ) Although the trial court denied reconsideration on incorrect grounds, we affirm its denial on different grounds. (See Little v. Los Angeles County Assessment Appeals Bds. ( 2007) 155 Cal.App.4th 915, 925, fn. 6 [“A decision correct in law ‘ “ will not be disturbed on appeal merely because given for a wrong reason. ” ’”].)25

to reconsider the matter.” (§ 1008, subd. (a). ) If the movant
asserts “ ‘ new or different facts, ’ ” they “must provide a satisfactory explanation for failing to present the evidence sooner.” ( California Correctional Peace Officers Assn. v. Virga (2010)
181 Cal.App.4th 30, 46, fn. 15; accord, Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) We review for abuse of discretion. ( Torres v. Design Group Facility Solutions, Inc. (2020)
45 Cal.App.5th 239 , 243.) Appellants ’ opening brief do es not address how they met
the section 1008 standard . (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“mere assertion that the judgment is wrong,” “without pertinent argument or an attempt to apply the law to the circumstances of th[e] case,” waives the issue]; accord, In re Tobacco Cases II (2015) 240 Cal.App.4th 779, 808.) Even if we reached the issue, Appellants did not meet their
burden to show “new or different facts [or] circumstances ” supporting reconsideration. (§ 1008, subd. (a).) The trial court observed that Appellants’ motions for rec onsideration “are premised largely on the same arguments made in connection with their motions to vacate default and default judgment.” Appellants’ “new or different facts”

— supplied by revised declarations from Appellants and a new declaration from Paul
Fi ne

— also did not support reconsidering the denial of
section 473.5 relief. Although Fine’s declaration stated that Fine “never spoke with Gianni Saryan, Sona Apikian and Sam Khachatryan ” about the matter, his declaration also suggested Appellants were seek ing representation in January 2021

, 14 months before the default judgment was entered

. Appellants updated their individual declarations to state that their “lack of notice was not caused by [their] inexcusable neglect or deliberate26

avoidance of service

, ” but Appellants did not provide any facts supporting these bare recitations of the statutory language . Nor did they address the evidence before the trial court, which ACMC had put into its opposition briefs, that they had avoided service and delayed respon ding to the complaint until the default judgment was entered. (See Rios

, supra , 65 Cal.App.5th at p. 885 [affirming denial of § 473.5 relief where movant “did not state any supporting facts” or “reference evidence that he avoided attempts to serve him ”] ; Anastos v. Lee

, supra , 118 Cal.App.4th at p. 1319 [ § 473.5 movant who may have provided plaintiff with an
“incorrect” address failed to declare how his lack of notice was “not caused by [his] avoidance or in excusable neglect”] ; Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 259

- 260 [ court properly denied motion to set aside default where evidence showed “defendant attempted to avoid service of process

, ” despite defendan t’s affidavit denying this account ].) Similarly, t he new declaration from Appellants’ att orney did not warrant reconsideration of the court’s denial of relief under section 473, subdivision (b)

. Appellants assert the trial court did not properly consider their attorney’s “declaration under section 473(b), explaining that any deficiencies in t he
earlier declarations were the fault of counsel and should not result in prejudice to [Appellants].” Counsel declared, “I presumed [Appellants’] 473.5 affidavit was adequate based on context rather than the exact language,” and “any confusion caused by [Appellants’] motion or reply

— such as identifying Section 473(b) rather than 473.5” was caused by his excusable neglect or mistake. But “ [a] mistake based on (1) ignorance of the law or (2) imprecision in drafting

. . . is not a proper basis for
reconside ration.” ( Pazderka v. Caballeros Dimas Alang, Inc.27

(1998) 62 Cal.App.4th 658 , 670.) In any event , a n attorney’s

“ ‘ [c]onduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, ’ ” is

not exc usable neglect or mistake within the meaning of
section 473, subdivision (b). ( Zamora v. Clayborn Contracting Group (2002) 28 Cal.4th 249, 258; accord, Garcia v. Hejmadi

, supra , 58 Cal.App.4th at p. 682.)

DIS POSITION

The trial court’s order denying Appe llants’ motion s to set aside the default and default judgment is affirmed. The order denying Appellants’ motions for reconsideration is also affirmed.
ACMC is entitled to recover its costs on appeal.

MARTINEZ , J.

We concur:

SEGAL, Acting P. J. RAPHAEL, J. *

* Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, se ction 6 of the California Constitution.