Anderson v. Zielomski CA2/3

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B317200
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. GC050036
v.
RICK ZIELOMSKI,
Defendant and Appellant.
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.
_________________________
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.
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