In Giorgio v. Synergy Management Group, LLC (2014) Case No. B248752, a California Court of Appeal held in an opinion published on November 6, 2014, that the Los Angeles County trial court did not abuse its discretion in permitting service by publication on Defendant John Giorgio (“Giorgio”) after numerous attempts to find his current address produced a single address in Los Angeles from which mailed service was returned. The Court ruled that publication in a Los Angeles newspaper was proper because Plaintiff had a reasonable belief that service by publication in that county was most likely to give actual notice to the party to be served.”
In this intentional tort action, Synergy Management Group, LLC (“Synergy”) alleged in its Complaint that Giorgio converted assets of Synergy’s assignor by submitting false expense reports which resulted in the misappropriation of the assignor’s assets. Synergy personally served Giorgio with the original Complaint at a North Carolina airport and Giorgio failed to respond. Synergy subsequently filed a First Amended Complaint and attempted service via an address in the Netherlands. Again, Giorgio did not respond. Synergy then filed a request for entry of default against Giorgio which was entered that day.
Upon learning of the entry of default, Giorgio retained local counsel and filed a motion to set aside default pursuant to California Code of Civil Procedure § 437(d) on the grounds that, because he was not properly served, the entry of default was void. In his declaration, Giorgio claimed he never received the mailing because he had not lived in the Netherlands for several years. The trial court granted the motion to set aside the default.
Following the Court’s order, Synergy searched the four corners of the internet to locate any known residences of Giorgio. The search uncovered a single address in Los Angeles off of South Wooster Street. Synergy made multiple unsuccessful attempts to effectuate service on Giorgio at that address via certified mail and through the use of a professional process server.
Not to be defeated by the elusive Giorgio, Synergy filed an application for publication pursuant to California Code of Civil Procedure § 415.50, which was granted by the Court. Service was then attempted by publication for four consecutive weeks in the Los Angeles Daily Journal. After the fourth week of publishing, Synergy again moved for entry of default which the Court entered. Yet again, Giorgio filed a motion to set aside the default on the basis he was not in California at the time of the Daily Journal publication. The trial court found that Giorgio made strategic decisions to not respond to this matter and denied his motion, upholding the entry of default in favor of Synergy. Giorgio appealed.
The California Supreme Court has held that service via publication may be effectuated when all other means prove impossible. (Watts v. Crawford (1995) 10 Cal.4th 743, 748)(§ 415.50.) Moreover, service by publication is proper if upon affidavit it appears to the satisfaction of the court where the action is pending that the party to be served cannot be served with reasonable diligence. The court shall order the summons to be published in a named newspaper most likely to give actual notice to the party to be served. (§ 415.50(a)-(b)(emphasis added.)
Here, the Court of Appeal found substantial evidence Giorgio could not be served personally or by mail through reasonable diligence. Synergy conducted online searches for any addresses associated with Giorgio and it hired process servers who specialize in difficult services of process. In support of its request for default, Synergy also included a recent invoice from Giorgio listing the Los Angeles address as his current address with a statement reading “make all checks payable to John Giorgio.” At the hearing for the motion to set aside the default, the Court took notice of the fact that Giorgio never revealed his association with the Los Angeles address nor did he identify any other publication which was likely to provide him actual notice. The Court of Appeal held that service by publication was proper and its election of the Los Angeles Daily Journal was “most likely to give actual notice to the party to be served.” (§415.50(b).)
Avoiding service of process is a risky proposition. This holding makes clear that where there is evidence of active avoidance of service, and reasonable diligence by the serving party, courts will interpret statutes liberally to allow service to be completed.
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