Filed 10/14/14; pub. order 11/6/14 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JOHN GIORGIO
, Defendant and Appellant,

v.

SYNERGY MANAGEMENT GROUP, LLC,

Plaintiff and Respondent. B248752

(Los Angeles County Super. Ct. No. LC094005)

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank J.

Johns on, Judge. Affirmed. Bitton & Associates and Ophir J. Bitton for Defendant and Appellant. Buchalter Nemer, Michael B. Fisher, Oren Bitan, for Plaintiff and Respondent.

_______________________2

In this intentional tort action, the trial court denied de fendant John Giorgio ’s

motion , made pursuant to Code of Civil Procedure 473, subdivision (d)
, 1 to set aside the entry of default and any subsequent default judgment, in favor of plaintiff Synergy Management Group, LLC (Synergy)

. Giorgio contends on appeal that the court erred in denying the m otion because he was never properly served with either the original or the first amended complaint

. W e affirm.

S TATEMENT OF FACTS AND PROCEDURE

On May 6, 2011, Synergy , on behalf of its predecessor in interest AS I Management, LLC, filed its original complaint in this action. The original complain t alleged Gi orgio “converted the assets of [ Synergy ] ’s assignor by submitting false expense reports resulting in the misappropriation of assets belonging to [ Synergy ] ’s a ssignor ” and “committed fraud by submitting false expense reports to [ Synergy]’s assignor with the intent to deceive [ Synergy ]. [ Synergy ] reasonably relied on the accuracy of expense reports submitted by [Giorgio]. As a direct result of [ Synergy ]’s relia nce on the representations made by [Giorgio], [ Synergy ] ’s assignor paid moneys to [Giorgio] to which he was not entitled.” Synergy sought compensatory and punitive damages according to proof, in an amount greater than $10,000 but less than $25,000, the reb y designating the case as a limited civil case. On May 7, 2011, Synergy personally served Giorgio with the original complaint at a North Carolina airport

. 2 Giorgio never responded to the original complaint

. In his

1 All further statutory references are to the Code of Civil Procedure, unless otherwise stated.

2 Service was established by the Proof of Service of Summons form (§ 425.12) filed May 24, 2011.3

declaration, Giorgio claimed he had b een living and wo rking in Europe since October 1
, 2009 , and was only visiting the United States at the time of service

. On June 13, 2011, Synergy filed its first amended complaint which sought increased damages in the amount of $254,687.11, reclassifying the matter from a limited

to an unlimited civil case. 3 On June 13, 2011, Synergy mailed the amended complaint to

an address in the Netherlands (Prinsengracht 694, 1017 KZ Amsterdam)
, thought to be Giorgio’s residence. Giorgio never responded to the amen ded complaint. In his declaration, Giorgio claimed he did not receive it because he had not lived or worked in the Netherlands since April 14, 2011.

On Au gust 29, 2011, Synergy filed a request for entry of d efault against Giorgio.

The clerk entered def

ault the same day.

In October 2011, Giorgio learned about the default that had been entered, and on January 30, 2012, retained local counsel. On February 6, 2012, Giorgio filed a motion to

set aside d efault (§ 473, subd. (d)) on the grounds that “(a) G IORGIO was not properly served with the Summons, Complaint and First Amended Complaint; (b) the entry of default violates due pr ocess of law and is void; and (c ) GIORGIO has not been properly served and has not appeared in the action and therefore must b e properly served before default may be entered. ” On March 21, 2012, the trial court granted Giorgio’s motion to
set aside the default

. 4 Synergy then conducted a search for Giorgio ’s address by utilizing online search engines such as Accurint, Google.co m, and White Pages. Synergy located one address

3 The first amended c omplaint also corrected a scrivener’s error in the original complaint, which erroneously listed Ronald Freson as plaintiff on page 4 and 5 of the original complaint. The remainder of the original complaint, including the summons, correctly listed Synergy as plaintiff.

4 No reporter’s transcript of the hearing on the motion to set aside entry of default was provided by either party, only a case summary listing the proceeding held and the trial judge’s ruling.4

that Giorgio was associated within the last two years in California

— 1109 South Wooster Street, #3, Los Angeles, 90035 (Wooster Address). On June 4, 2012, Synergy sent by certified mail a copy of the summons , complaint and acknowledgment of receipt of service addressed to Giorgio at the Wooster Address. Shortly thereafter Synergy
received a “Return to Sender

- Unclaimed” envelope from the United States Post Office. On June 7, 2012, Synergy obtained a letter f rom Groot & Evers, a bailiff firm in the Netherlands, confirming that Giorgio had “migrated to the United States of America since the 17th of October 2011, the last known address is 1109 South Wooster Street,

CA

- 90035 Los Angeles (United States of America)

. The last known and registered address in The Netherlands was Prinsengracht 694, 1017 KZ Amsterdam (The Netherlands).” On June 12, 2012, Synergy hired a processor server from Janney & Janney Attorney Services to personally serve Giorgio at the Wooster A ddress but was

unsuccessful because no one would answer the door

. On June 18, 2012, Synergy mailed a written request to the United States Postal Service to provide any forwarding or change of address for Giorgio at the Wooster Address. The Postal Service response dated June 29, 2012, verified that Giorgio continued to receive mail at the Wooster Address and there was no change of address on file for Giorgio. Synergy then hired the Cromwell Group, Attorney Services, specializing in difficult service of pr ocess. Process servers attempted to effectuate service on Giorgio at the Wooster Address on six occasions , but they were all unsuccessful because no one would answer the door. The Cromwell Group ran several databases and found other addresses for family members and tried unsuccessfully to effectuate service on Giorgio at those addresses

. On September 20, 2 0 12, Synergy filed an a pplication for p ublication (§ 415.50). 5

5 The application included the Declaration of Michael B. Fisher (Synergy’s counsel of record); Non Service Report and Declaration of Diligence Of Ryan Lusting (processor server of Janney & Janney); Declaration of Lilia Alanis (account executive of the Cromwell Group); June 4, 2012 Notice and Ackno wledgment of Receipt and Certified Mail Receipt to the Wooster Address along with the “Return to Sender

-5

On September 27, 2012, the trial court granted Synergy’s application for p ublication

. T he summons on the first amended complaint was published in the Los Angeles Daily
Journal for four consecutive weeks. Service by publication o f the summons on the first amended complaint was completed on November 2, 2012, and Giorgio’s response was

due o n or before December 3, 2012. On November 6, 2012, Synergy mailed courtesy copies of t he application for p ublication , order for p ublication, proof of publication, summons on first amended complaint, first amended complaint, clerk’s notice of

transmittal r e

- classification, notice of case assignment, and alternative dispute resolution

p ackage to Giorgio’s counsel of record. Giorgio did not file an answer, or otherwise respond, to the amended complaint.

On Dec ember 4, 2012, Synergy filed a request for entry of d efault against Giorgio, which was entered by the court clerk on the same day. A copy of this r equest was mailed to Giorgio at the Wooster Address and to Giorgio’s counsel of record. On Febru ary 1, 2013, Synergy filed its request for entry of default j udgment against Gio rgio and mailed a copy of this r equest to Giorgio at the Wooster Address and to Giorgio’s counsel of

record. In support of the request for default judgment, Synergy included a November 15, 2011 invoice from Giorgio listing the Wooster Address as his current address to “[m]ake all checks payable to John Giorgio.” Synergy also included multiple invoices from Giorgio that listed t he Wooster Address during the time of his employment

. On February 6, 2013 , Giorgio filed a motion to set as ide entry of default and any subsequent default judgment on the grounds that the service by publication was improper ( § 473, subd. (d))

. In his motion, Giorgio stated he had neither lived nor worked in California since October 1, 2009, and was not in Cali fornia at the time the summons was published in the Los Angeles Daily Journal. On March 12, 2013 , the trial court held a hearing on Giorgio’s motion. The court noted that “conspicuously absent from Mr. Giorgio’s declaration is any explanation at all

Unclaimed” envelope returned by the United States Post Office; the June 7, 2012 letter from Groot & Evers; and the June 18, 2012 letter to the Postal Se rvice with its response.6

as to how [the Wooster Address] in Los Angeles came to be associated with him . And it appears that at least the United States Post Office is of the opinion that he still apparently receives mail there. In addition to the statement from the investigators in . . . the
Netherlands . . . .” The court found that Giorgio “made a deliberate tactical decision to not respond to this matter” and denied Giorgio’s motion, entering default judgment in favor of Synergy for $254,687.11 in damages and costs. On March 22, 2013 , Giorgio

filed a motion for reconsideration of the court’s order denying Giorgio’s motion. On May 2, 2013, the trial court denied Giorgio’s motion for reconsideration , finding “there is nothing in this motion that’s new or that couldn’t have been pre sented in the last motion

. ” On May 10, 2013
, Giorgio filed a notice of appeal from the default judgment

.

DISCUSSION

Giorgio contends the trial court erred by denying his motion to set aside the

default and default judgment under section 473 , subdivisi on (d)
, 6 because the judgment is void for lack of proper service

. Giorgio first argues on appeal that service of the original complaint by personal service was improper. On May 6, 2011, Synergy filed its original complaint and personally served Giorgio at a North Carolina airport the following day. Thereafter, Synergy filed its first amended complaint on June 13, 2011

. “‘It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citations.]’ [Citation.] ‘Such amended pleading supplants all prior complaints. It alone will be considered by the reviewing c ourt. [Citations.]’

6 Under secti on 473, subdivision (d): “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and m ay, on motion of either party after notice to the other party, set aside any void judgment or order. ” A judgment is void if the defendant was never served with the summons and complaint. (See § 410.50, subd. (a).)7

[Citation .]” ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) On February 6, 2012, Giorgio conceded in his reply to Synergy’s opposition to set aside the first default that “the original complaint has been abandoned and superseded by the [first amended complaint], and can no longer function as a pleading.” Because the original complaint is not before us, we will disregard Giorgio’s contention that service of the original complaint was improper. ( See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049 , 1054 .) Giorgio further argues that service of the first amended complaint by mail to the Netherlands was improper. However, the trial court agreed with Giorgio and granted the

motion to set aside the default entered on August 29, 2011 , based on improper service to

the Netherlands

. We therefore conclude that Synergy’s service by mai l to the Netherlands is of no legal significance given the fact that the trial court was in agreement
with Giorgio and Synergy is not contesting that ruling on appeal

. Our inquiry will solely focus on Giorgio’s contention that serv ice by publication was improper.

Standard of Review

“ ‘ “ A motion to vacate a default and set aside [a] judgment (§ 473) ‘ is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse .

. . the exercise of that d iscretion will not be disturbed on appeal. ’ ” [Citations.] The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of

reason. [Citation.]’ [Citation.]” ( Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 .) Whether the evidence is oral testimony, affidavits, or documents, when

there is confli cting evidence, the trial court’ s express and implied factual determinations are not disturbed on appeal if supported by substantial evidence. ( Id. at p. 1250; Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1 , revd. on other grounds (1978) 436 U.S.

84 .) “‘ So far as it has passed on the weight of evidence or the credibility of witnesses, [the trial court’ s] implied findings are conclusive

. . . . When an issu e is tried on8

affidavits, the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantia l conflict in the facts stated, a determination of the controverted facts by the trial court will not be
disturbed.’ [Citations.]” ( Kulko v. Superior Court, supra, at p. 519, fn. 1.) However, “[w] here the question on appeal is whether the entry of defau lt and the default judgment were void for lack of proper service of process, we review the trial court’s determination de novo. ( Cruz v. Fagor America, Inc. ( 2007) 146 Cal.App.4th 488, 495

- 496.)” ( Hearn
v. Howard (2009) 177 Cal.App.4th 1193, 1200.)

Se rvice by Publication

Giorgio contends the service by publication did not provide him actual notice because he was not living or working in California since October 1, 2009. We disagree and explain below

. Our Supreme Court stated, “[T]he governing sta tutes afford the plaintiff a variety of means by which to effect service upon the defendant. Service may be accomplished by means of personal delivery of the summons and complaint to a party (§ 415.10), by delivery to the business office or dwelling of ce rtain classes of parties (§§ 415.20,

416.10

– 416.90), by mailing (with an acknowledgment of receipt) to a party (§ 415.30), or, if a party is out of state, by any of the preceding means or by first class mailing, requiring a return receipt (§ 415.40). Fina lly, if service upon a party by these enumerated means proves impossible, service may be effected through publication, which must be authorized by court order. (§ 415 .50.)” ( Watts v. Crawford (1995) 10 Cal.4th 743, 748.) Section 415.50 provides in pert inent part: “A summons may be served 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 specified in this art icle

. . . . [¶]

. . . [¶] The court shall order the9

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

. . . . The order shall direct 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 publication of the summons.” (§ 415.50(a)

- (b) , italics added .) Although “[w]e think it

safe to say that there is really little expectation that a defendant so served will in fact acquire actual notice from the publication.” ( County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450.) Substantial evidence supports the trial court’s fi nding that Giorgio could not with reasonable diligence be served personally or by mail . In response to the trial court granting Giorgio’s motion to set aside the entry of default, Synergy conducted a search
for any addresses associated with Giorgio. Syne rgy conducted a search online and only
was able to locate one address associated with Giorgio, the Wooster Address. On June 4, 2012, Synergy attempted to serve Giorgio by mail to that address but received a “Return to Sender Unclaimed” envelope from the U nited States Postal Service. But on June 7, 2012, a bailiff firm in the Netherlands confirmed that Giorgio had migrated to the United States since October 17, 2011, and his last known address is the Wooster Address. Synergy hired a process server on Janu ary 12, 2012
, to personally serve Giorgio at the Wooster Address but was unsuccessful because no one answered the door. Thereafter, Synergy received a response from the Postal Service regarding its written request to provide any forwarding or change of ad dress for Giorgio at the Wooster Address. The Postal Service verified that Giorgio continued to receive mail at that address and there was no change of address on file. Based on that information, Synergy hired Cromwell Group, Attorney Services, wh ich spe cialize in difficult service of process. Process servers attempted to effectuate service on Gio rgio at the Wooster Address on six occasions, but they were all unsuccessful because again, no one would answer the door.
Given these facts , it was reasonable for the trial court to conclude the summons and complaint could not be served personally or by mail. (Compare Transamerica Title Ins.10

Co. v. Hendrix (1995) 34 Cal.App.4th 74 0, 745 [where the defendant’ s home address was
not know n but his post office addre ss was known, it was error to conclude that service by mail was not required before ordering notice by publication, because “a post office box is

a sufficient address for compliance with . . . section 415.30”].) Giorgio contends the summons on the first amended complaint was not published in a newspaper that would most likely give him actual notice. However, in support of the request for default judgment, Synergy included a November 15, 2011 invoice from Giorgio listing the Wooster Address as his current address to “[m]ake all checks payable to John Giorgio.” This invoice was transmitted after the first default against Giorgio was entered in this case, which was five months after Synergy filed its first amended complaint. Moreover, the trial court prope rly noted during the hearing on Giorgio’s

motion to set aside t he default and default judgment that Giorgio has never provided an explanation for why he is associ ated with the Wooster Address. The United States Postal Service, along with an investigator i n the Netherlands believed Giorgio also lived at the
Wooster Address and found no other address on record associated with him

. Giorgio also failed to mention to the trial court or in his opening brief what newspaper would have given him actual notice. ( K hourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013 [“It is established that a defendant will not be permitted to defeat service by rendering physical service impossible”].) Contrary to Giorgio’s contentions, we find Synergy had reason t o know Giorgio resided at the Wooster Address , and s ubstantial evidence supported Synergy’s election of a newspaper in Los Angeles as the newspaper “most likely to give actual notice to the party to be served . . . .” (§ 415.50, subd. (b); see

Olvera v. O lvera (1991) 232 Cal.App.3d 32, 42

- 43.) We conclude service by publication was proper and affirm the default judgment against Giorgio.11 DISPOSITION

The judgment is affirmed. Synergy is awarded costs on appeal.

KRIEGLER, J.

We concur:

MO SK, Acting P. J.

GOODMAN, J. *

* J udge of the Los Angeles County Supe rior Court
, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 11/6/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JOHN GIORGIO,

Defendant and Appellant,

v.

SYNERGY MANAGEMENT GROUP, LLC,

Plaintiff and Respondent. B248752

(Los Angeles County Super. Ct. No. LC094005)

ORDER CERTIFYING OPINION
FOR PUBLICATION

THE COURT:

The opinion in the above

- entitled matter filed on October 14
, 2014 , was not certified for publication in the Official Reports. Upon res pondent’s request and for good cause appearing, it is ordered that the opinion shall be published in the Official Reports.Pursuant to California Rules of Court, rule 8.1105(b), this opinion is certified for

publication.

_________________________________ ______________________________________ KRIEGLER, J. MOSK
, Acting P. J. GOODMAN , J. *

* J udge of the Los Angeles County Superior Court
, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.