Filed 3/27/23 Anderson v. Zielomski CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This op inio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

MICHAEL D . ANDERSON

,

Plai n tiff and R espondent

,

v.

R ICK ZIELOMSKI

,

Defendant and Appellant

. B 317200

Los Angeles County Super. Ct. No. GC 0 50036

APPEAL from an order o f the Superior Court of
Los Angeles County

, Jo hn P. Doyle , Judge. Affirmed

.
The Perry Law Firm and Ch ris J. Hoo for Defendant

an d App ellant

.

Ander son & Associates and Michael D. Anderson
for P laint iff a nd Respo n d ent

.

_________________________2 Michael D. Anderson obtained a default judgment against
Ric k Zielomski in 2012. Almost a decade later, Zielomski mov ed

to set aside the judgment because the p r oof of service listed

tw o dates of attempted service in 2020, rather than 2012.
The trial court denied the mo tion. On appeal, Zielomski argues the proof of service and judgment are facially void for fraud.
We d isagree and affirm.
FACTUAL A ND PROCED UR AL BACKGROUND In August 2012, attorney Michael D. Anderson filed a complaint against his former client, Rick Zielomski

, to recover

un paid legal fees and costs

. Three months later, Anderson fil ed

a request for defaul t judgment, along with a co py o f the proof
of service of the summons and complaint. Anderson attached to the proof of service an affidavit of
due diligence, which the p rocess server signed on September 4,

2012

. The affidavit states the process server att e m pt ed to serve Zielomski at h is home on “0 8/30/20” and “08/31/20.” According

to the affidavit, o n “09/01/12,” the process server l eft a copy
of the documents at Zielomski’s house with “ ‘JOHN DOE’,
CO

- OCCUPANT, White, Male, 60 Years Old, Gray Ha ir

, 6 Fee t, 175 Pounds.” The process server mailed a copy of the documents to Zielomski three days later.
On November 28, 2012, t he trial court entered defaul t judgment against Zielomski for $96,232.75. Zielomski p ai d
An derson around $50,000 towards the judgment over the next
few years, but he stopped ma king payments in 2015. In 2021, Anderson filed an application for order for sale
of real property foreclosing upon a judgment lien. Zieloms ki

r es ponded by filing a motion to vacate and set aside the default
and de fault judgment. According to the motion

, Zielomski was3

never served with a copy of the summons and complaint and did
not have actual notice of the litigation

. Zi elomski claimed the

process server could not have served the summons and complaint

on “ Jo hn D oe ” because no one with that description l ived at his
house and the front gate w as locked a t the time

. The court denied the mo ti on on O ctober 7, 2021. The

court explained the motion wa s untimely to the extent Zielomski sought to set aside the default judg ment under Code of Civil
Proc edure section 473.5. 1 Further, the court declined to grant the motion un de r sec tion 473 because the judgment was not void
on its face. About a month later, on November 3, 2021, Zielomski filed

a second motion to set aside and vacate the default and defaul t judgment

. This time, Zielomski claimed the judgment is vo id
b eca use the proof of service “is fraudulent on its face

. ” Ziel o mski argued the proof of service i s fraudulent because the process
server stated in the affidavit he attempted service on two dat es in 2020, e ight years after the court en te red def ault judgment. According to Zielomski , the “2020 dates cannot be excused as simple, harmless clerical errors or typos. Clearly, the P rocess S erver never went to the property, never attempted to serve
Def endant , and n ever served De fe nda nt

. It is asserted the
Process Server Go ogled dates and then entered them.”
T he court denied the motion on the basis that Zielomski failed to establish by a preponderance of the evidence t h e pro of
of service is fraudulent. Zi el oms ki t i mely appealed.

1 Undesignated statutory references are to the Code of Civil Procedure.4 DISCUSSION Zielomski argues the trial court erred in denying his second motion to set aside and vacate the default and default judgment

. S ection 473, subdivision (d) allows a court to set aside a

vo i d ju dgment. A co ur t may set aside a judg ment under this provision if a party shows “ extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning o f
the relevant fac ts .” ( Trac kman v. Kenne y (2010) 187 Cal.App.4th 175, 180

– 181.) Alternatively

, at any time, a court may set aside

a judgment that is facially void

. ( I d

. at p. 181. ) Whether a judgment is facially void “ does not hinge on evidence: A vo id judgment’s inva lidity appe ar s on th e fa ce of the record, including the proof of service.” ( Ibid .) We review an order denying a motion to vacate a default and set aside a judgment under section 473 for an abuse of
discretion. ( Strathvale Holdings v. E. B.H. (2005) 1 26
C al.App.4th 1 2 41
, 124 9.) “The appropriate test for abuse
of discretion is whether the trial court exceeded the bounds
of reason.” (

Ibid .) We review de novo, however, a trial court ’ s determination that a default judgment is or is not void

. ( R odriguez v. Cho (2015) 2 3 6 Ca l.A pp.4t h 742, 752.) Nevertheless, “we will not disturb the trial court ’ s factual findings where

. . . they are based on substantial evidence. I t is the province of the trial court to determine the credibility of the
dec larants and t o we igh the evid e nc e. ” ( Fala hati v. Kondo (2005) 127 Cal.App.4th 823, 828.) “Questions of law, including [the] application an d interpretation of [a] statute” are subject to

our independent review. ( Kern County Dept. of Child Support
Service s v. Camacho (201 2) 209 Cal.A p p. 4t h 1 028, 1035.)5 Zielomski contends the fact that the process server listed “08/30/2020” and “08/31/2020” on his affidavit renders the proof
of service “facially void for fraud.” He posits the 2020 dates show the process se rve r ne ver attempted s er vic e, but instead “ Googled

c onvenient

- looking dates and then entered them after

- the

- fact.” The smoking gun, according to Zielomski , is the fact that, if the

year is changed from 2020 to 2012, the “ days [Thursday and Friday] o f th e dates [Augu st 3 0 a nd 31] . . . for purport ed Attempts at Service line up perfectly for a purported Saturday Substituted Service” on September 1, 2012. Zielomski insists this is proof the “date manipulation was purposeful, if not strategic,”

rat her than a ha rm le ss typographical error.
Unlike Zielo mski, we see nothing noteworthy, let alone nefarious, about the fact that August 30 and 31 immediately preceded September 1 in the year 2012. Nor are we at all troubled by the fact that, if S eptember 1, 2 01 2 fel l on a Saturday, then August 30 and 31, 2012 would have fallen on a Thursday and Friday, respectively. Indeed, this is how the Gregorian
calendar works.
We also are at a loss to understand how the inclusion of dates from 2020 pro ves the process s er ve r “ G o ogled” them after
the fact. Perhaps Zielo mski’s argument would have some appeal if Anderson had filed the affidavit in 2020. Anderson, however,
filed it in November 2012. Contrary to Zielomski’s suggestions, i t is r eadily appa rent

— a nd beyond serious dis pute

— t he 2020 dates on the af fidavit

are m erely typographical errors. Zielomski

, however

, provides

no authority, nor have we uncovered any in our independent research, stating a typographical error in an affidavit att ached6

to a proo f of service renders th e proo f of service and any re sulting
defau lt judgment facially void.
Z ie l o m ski alternatively argues that, even if the process

se r ver did not deliberately falsify the affidavit , t he inclusion
of the 2020 dates nev erth eless const itut es ex trinsic fraud or

m istake

. He contends , for pur poses of a se ction 473, subdivision (d) motion, extrinsic fraud or mistake includes “all circumstances
th at deprive an adversary of fair notice of hearing whether or

not t hose circumstan ces wo uld qualify as fraudulent or mistak en in the strict sense.” Whi le that may b e true, Zielomski fails to explain how the in correct dates on the affidavit deprived him of fair notice of hearing or otherwise prejudiced him. Acc ordi ngly,
he ha s no t sho wn the error s provide grounds for setting aside
the judgment. Finally

, Zielomski c ontends the trial court erroneously refused to consider his evidence, and instead den ied his motion

on the basis that it was an improper request for rec onsideratio n. The record belies this claim. Although the cou rt noted Zielomski’s second m otion was ess entially a motion for reconsideration, it did not indicate it den ied the motion on that
basis. To the contrary, the court stated it denied the motion
bec ause i t f

ound Zielomski failed to establish the proof of ser vice
is fraudulent. Moreover , the court e xplicitly stated in its minute order that it had “reviewed the evidence, including the evidenc e provided in connection wi th D efendant ’ s prio r mot ion . . .

. ”7 D I SPOSITION
The order i s a ffirmed. Michael D. Anderson shall recover
his costs on ap peal

.

N OT T O BE PUBLISHED IN THE OFFICIAL REPO RTS

EGERTON, J.

We concur:

E DMO N, P. J.

L AVIN

, J

.