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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

MICHAEL D. ANDERSON,

Plaintiff and Respondent,

v.

RICK ZIELOMSKI,

Defendant and Appellant.

B317200

Los Angeles County

Super. Ct. No. GC050036

APPEAL from an order of the Superior Court of 

Los Angeles County, John P. Doyle, Judge. Affirmed.

The Perry Law Firm and Chris J. Hoo for Defendant

and Appellant.

Anderson & Associates and Michael D. Anderson

for Plaintiff and Respondent.

_________________________
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Michael D. Anderson obtained a default judgment against 

Rick Zielomski in 2012. Almost a decade later, Zielomski moved 

to set aside the judgment because the proof of service listed 

two dates of attempted service in 2020, rather than 2012. 

The trial court denied the motion. On appeal, Zielomski argues

the proof of service and judgment are facially void for fraud. 

We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2012, attorney Michael D. Anderson filed a 

complaint against his former client, Rick Zielomski, to recover 

unpaid legal fees and costs. Three months later, Anderson filed 

a request for default judgment, along with a copy of the proof

of service of the summons and complaint.

Anderson attached to the proof of service an affidavit of 

due diligence, which the process server signed on September 4, 

2012. The affidavit states the process server attempted to serve 

Zielomski at his home on “08/30/20” and “08/31/20.” According 

to the affidavit, on “09/01/12,” the process server left a copy 

of the documents at Zielomski’s house with “ ‘JOHN DOE’, 

CO-OCCUPANT, White, Male, 60 Years Old, Gray Hair, 6 Feet, 

175 Pounds.” The process server mailed a copy of the documents 

to Zielomski three days later.

On November 28, 2012, the trial court entered default 

judgment against Zielomski for $96,232.75. Zielomski paid

Anderson around $50,000 towards the judgment over the next 

few years, but he stopped making payments in 2015.

In 2021, Anderson filed an application for order for sale 

of real property foreclosing upon a judgment lien. Zielomski

responded by filing a motion to vacate and set aside the default 

and default judgment. According to the motion, Zielomski was 
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never served with a copy of the summons and complaint and did

not have actual notice of the litigation. Zielomski claimed the

process server could not have served the summons and complaint 

on “John Doe” because no one with that description lived at his 

house and the front gate was locked at the time.

The court denied the motion on October 7, 2021. The 

court explained the motion was untimely to the extent Zielomski 

sought to set aside the default judgment under Code of Civil 

Procedure section 473.5.1 Further, the court declined to grant 

the motion under section 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 default 

judgment. This time, Zielomski claimed the judgment is void

because the proof of service “is fraudulent on its face.” Zielomski 

argued the proof of service is fraudulent because the process 

server stated in the affidavit he attempted service on two dates 

in 2020, eight years after the court entered default judgment.

According to Zielomski, the “2020 dates cannot be excused as 

simple, harmless clerical errors or typos. Clearly, the Process 

Server never went to the property, never attempted to serve 

Defendant, and never served Defendant. It is asserted the 

Process Server Googled dates and then entered them.”

The court denied the motion on the basis that Zielomski 

failed to establish by a preponderance of the evidence the proof 

of service is fraudulent. Zielomski timely appealed.

1 Undesignated statutory references are to the Code of Civil 

Procedure.
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DISCUSSION

Zielomski argues the trial court erred in denying his second 

motion to set aside and vacate the default and default judgment. 

Section 473, subdivision (d) allows a court to set aside a

void judgment. A court may set aside a judgment 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 of

the relevant facts.” (Trackman v. Kenney (2010) 187 Cal.App.4th 

175, 180–181.) Alternatively, at any time, a court may set aside 

a judgment that is facially void. (Id. at p. 181.) Whether a 

judgment is facially void “does not hinge on evidence: A void 

judgment’s invalidity appears on the face 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) 126 

Cal.App.4th 1241, 1249.) “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.

(Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 752.) 

Nevertheless, “we will not disturb the trial court’s factual 

findings where . . . they are based on substantial evidence. It is 

the province of the trial court to determine the credibility of the 

declarants and to weigh the evidence.” (Falahati v. Kondo (2005) 

127 Cal.App.4th 823, 828.) “Questions of law, including [the] 

application and interpretation of [a] statute” are subject to 

our independent review. (Kern County Dept. of Child Support 

Services v. Camacho (2012) 209 Cal.App.4th 1028, 1035.)
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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 server never attempted service, but instead “Googled

convenient-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] of the dates [August 30 and 31] . . . for purported 

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,”

rather than a harmless typographical error.

Unlike Zielomski, 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 September 1, 2012 fell 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 proves the process server “Googled” them after

the fact. Perhaps Zielomski’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, it is readily apparent

—and beyond serious dispute—the 2020 dates on the affidavit 

are merely typographical errors. Zielomski, however, provides 

no authority, nor have we uncovered any in our independent 

research, stating a typographical error in an affidavit attached 
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to a proof of service renders the proof of service and any resulting 

default judgment facially void. 

Zielomski alternatively argues that, even if the process 

server did not deliberately falsify the affidavit, the inclusion 

of the 2020 dates nevertheless constitutes extrinsic fraud or 

mistake. He contends, for purposes of a section 473, subdivision 

(d) motion, extrinsic fraud or mistake includes “all circumstances 

that deprive an adversary of fair notice of hearing whether or 

not those circumstances would qualify as fraudulent or mistaken 

in the strict sense.” While that may be true, Zielomski fails to 

explain how the incorrect dates on the affidavit deprived him of 

fair notice of hearing or otherwise prejudiced him. Accordingly, 

he has not shown the errors provide grounds for setting aside 

the judgment. 

Finally, Zielomski contends the trial court erroneously 

refused to consider his evidence, and instead denied his motion 

on the basis that it was an improper request for reconsideration. 

The record belies this claim. Although the court noted 

Zielomski’s second motion was essentially a motion for 

reconsideration, it did not indicate it denied the motion on that 

basis. To the contrary, the court stated it denied the motion 

because it found Zielomski failed to establish the proof of service 

is fraudulent. Moreover, the court explicitly stated in its minute 

order that it had “reviewed the evidence, including the evidence 

provided in connection with Defendant’s prior motion . . . .”
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DISPOSITION

The order is affirmed. Michael D. Anderson shall recover

his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.