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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.,

Defendants and Appellants.

 B321981

 (Los Angeles County

 Super. Ct. No. 19LBCV00725)

APPEAL from orders 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 Appellants.

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 Saryan1 (collectively, 

Appellants) appeal the trial court’s order denying their motions

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. This

loan was never repaid.

In 2019 ACMC Finance and Trade (ACMC), 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, answered 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 are 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. Appellants 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 Trading

Company LLC; Jack; Appellants Apikian, Sargis, and Saryan; 

John Davids, and Dennis Rogers Jr. According to the complaint, 

Jack and Appellants are the owners of Energy Trading. Jack is 

the father of Saryan and husband of Apikian; Sargis is Jack’s 

brother.

ACMC alleged its predecessor, 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 assigned 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 forgery 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 of 

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, Sona 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 

contract, 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 

fraudulent 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 Publication

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 [individual] 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 Appellants 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 Appellants 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 Investigation 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 making themselves difficult or 

impossible to locate.”

The second declaration was from Paul Dryman, another 

licensed private investigator and the president and CEO of 
6

Informed Decision, an investigation corporation ACMC hired in 

December 2019. Dryman “conducted 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].” Dryman believed Appellants 

were “intentionally hiding their whereabouts.”

On this basis, ACMC asserted it exercised “reasonable 

diligence” in attempting to personally serve Appellants and thus

service by publication was proper. The trial court agreed and 

granted 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 all liable for each other’s torts and 

liabilities per the doctrine of civil conspiracy.” The original 
7

complaint contained these allegations in the cause of action for 

civil conspiracy.

After filing the FAC, ACMC obtained a second summons 

and again served Appellants 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. The 

February publication included a statement of damages 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 

home 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 addresses 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 individuals.” 

ACMC did not receive any further information, 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

were 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-up 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’ Motions 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, Appellants argued the judgment was 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 notice;” and they did not file 
9

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 diligence 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 judgment, I promptly retained counsel.”

The trial court denied Appellants’ motions on March 25, 

2022 “for numerous reasons.” The court first denied the motions 

as “confusing, 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 service or inexcusable 

neglect.’ [Appellants] filed no such declaration.” While the 

motion asserted relief for defense counsel’s “excusable neglect,”

the court “reviewed Counsel’s declaration in this regard,” noting 

it was “a mere four paragraphs long” and “says 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 cite 
10

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 discovery’ 

propounded on Jack Saryan and/or Energy Trading,” but 

Appellants disclaimed any relationship to Energy Trading and 

Saryan had refused to disclose Appellants’ addresses.

Finally, the court rejected Appellants’ argument that the 

default judgment was erroneously 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 FAC 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 “Notice 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 attached a proof of service 

indicating Appellants’ counsel was served with the “Notice 

Pertaining to Ruling.”

G. Appellants’ Motions for Reconsideration

On April 12, 2022, pursuant to section 1008, Appellants 

moved for reconsideration of the trial court’s order denying their 

motions to set aside the default judgment.
11

Accompanying the motions 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 Saryan, 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 

matter 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’ prior 

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 any 

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 publication 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 their subsequent motions 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 

Appellants 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 On 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 are 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 motion 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 Rules of 

Court, rule 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 Appellants’ 

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 Pertaining to Ruling on [Appellants’] Motion to 

Vacate the Default and Default Judgments.” (See Cal. Rules of 

Court, rule 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 ‘document entitled “Notice of Entry”’ must bear 

precisely that title.”] [citation omitted]; 20th 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, rule 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, rule 8.104(e).)
14

service reflected 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, 474 [“[W]e strictly construe statutes and rules concerning 

the time in which to file a notice of appeal.”].)

Accordingly, Appellants’ notices of appeal were timely filed

within 180 days of the order appealed under California Rules 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 

publication 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 Rules of Court, 

rule 8.108(e), the appeal is also timely under that rule, which 

governs the time to appeal when 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 applicable 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 mailed to the party if his or her address is 

ascertained before expiration of the time prescribed for 
15

1. Legal Background and Standard of Review

“Section 415.10 et seq. governs the manner of service of a 

summons. A summons 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 did not challenge this

omission in the trial court or on appeal, forfeiting 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 raised”’”].) 
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 publication. “‘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, 749, fn. 5.) 

“A number of honest attempts to learn 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 circumstances.” (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 

diligence 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 resources,” 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 

were 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 to 

effectuate service”]; Giorgio v. Synergy Management Group, LLC, 

supra, 231 Cal.App.4th at pp. 248-249 [reasonable diligence 
17

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 Appellants. (§ 415.50, subd. (b).) Appellants argue 

that they have no connection or nexus to Long Beach, so 

publication in a Los Angeles or Beverly Hills newspaper was 

most likely to convey actual notice.10 We are unpersuaded.

In its application for service by publication, 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 Appellants 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 Hills 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 publication 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 defendant “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 their 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 purportedly 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 defendant, 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, the FAC was filed before the entry of 

Appellants’ default, not after.

Appellants argue they were entitled to personal service of 

the FAC, citing 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 

against [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 zip 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 Denied Appellants’ Motions to 

Vacate the Default and Default Judgment

The trial court did not abuse its discretion by denying

Appellants’ motions to set aside the default and default judgment

or their subsequent motions for reconsideration. Appellants 

specifically challenge denial of relief under sections 473.5 and 

473, subdivision (b).

1. The Trial Court Did Not Abuse Its Discretion In 

Denying Appellants’ Section 473.5 Motion

a. Legal background and standard of review

Section 473.5, subdivision (a), provides: “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 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 

neglect.” (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 the trial court’s ruling on 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 failed to meet their burden under 

section 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 inexcusable 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 standard.

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.’” 

Appellants 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, these 

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 pp. 885-886 [affirming denial of § 473.5 motion
22

where movant’s “conclusory declaration 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 defendants’ 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 counsel 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 he “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 

default 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 

discretionary.’” (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 support relief.” The trial court did not err. To 

warrant relief, counsel’s affidavit must include an “admission by 

counsel for the moving party that his error resulted in the entry 
24

of a default.” (State Farm Fire & Casualty Co. v. Pietak (2001) 

90 Cal.App.4th 600, 609; accord, Martin Potts & Associates, Inc. 

v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) Here, counsel’s 

declaration did not mention any error at all.

3. The Trial Court Did Not Err By Denying Appellants’ 

Motions for Reconsideration

Appellants also challenge the trial court’s denial of their 

motions 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 orders” 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.5th 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 does 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 reconsideration “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 

Fine—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 seeking 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 deliberate 
26

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 responding 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 inexcusable 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 defendant’s 

affidavit denying this account].)

Similarly, the new declaration from Appellants’ attorney 

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 the 

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 

reconsideration.” (Pazderka v. Caballeros Dimas Alang, Inc.
27

(1998) 62 Cal.App.4th 658, 670.) In any event, an 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 excusable 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.)

DISPOSITION

The trial court’s order denying Appellants’ motions 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, section 6 of 

the California Constitution.