Zorikova v. Wiesand CA4/2

Opinion

Filed 9/9/26 Zorikova v. Wiesand CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ALLA ZORIKOVA,

Plaintiff and Respondent, E084492 v. (Super. Ct. No. CVRI2303140)

ROSALINDA WIESAND, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Craig G. Riemer, (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Christopher Harmon, Judge. Affirmed.

Pease Law, and Bryan W. Pease, for Defendant and Appellant.

Alla Zorikova, in pro. per. for Plaintiff and Respondent.

1 I.

INTRODUCTION

Defendant and appellant, Rosalinda Wiesand appeals the trial court’s denial of her motion to vacate a default judgment entered against her. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff and respondent, Alla Anatol Zorikova filed a complaint against Wiesand on June 20, 2023.1 On July 24, 2023, Zorikova filed a proof of service of summons in which she stated that she (through a third party) personally served Wiesand with the complaint and summons at her home on July 1, 2023.

Wiesand did not answer the complaint, so Zorikova requested an entry of default on August 1, 2023, on Judicial Council of California form CIV-100. In that request, Zorikova left the “Declaration of mailing” section blank, and did not indicate anywhere else that she served the request on Wiesand. Later that month, however, Zorikova filed another request for entry of default judgment in which she stated she mailed a copy of the request to Wiesand on August 28, 2023. After a prove-up hearing, the trial court entered a default judgment against Wiesand in December 2023.

1 The specifics of Zorikova’s complaint and the parties’ underlying dispute are not relevant to the issues on appeal.

2 Months later, Wiesand filed a motion to vacate the default judgment under Code of 2 Civil Procedure section 473. The thrust of the motion was that she was never served with the complaint. Wiesand supported her motion with a declaration in which she testified that she was not served on July 1, 2023, and she did not learn about Zorikova’s complaint until February 2024, when Zorikova began to enforce the default judgment.

Zorikova opposed the motion and supported her opposition with declarations from herself and Olivia Jeong. In her declaration, Zorikova testified that she timely served Wiesand with the complaint, summons, and request for entry of default judgment.

Zorikova noted that she filed a proof of service of summons on July 24, 2023, which stated that a third party personally served Wiesand at her home on July 1, 2023. Zorikova also supported her claim that she properly served Wiesand with emails between them in July and August 2023. Jeong similarly testified in her declaration that she mailed Wiesand a copy of the complaint, summons, and a “copy of [the] default package.”

The trial court denied Wiesand’s motion to vacate the default judgment. The court found that “the material evidence presented by [Zorikova] is credible and that [Wiesand’s] is not,” and that Wiesand was served with the summons and complaint on July 1, 2023. Wiesand timely appealed.

2 All further statutory references are to the Code of Civil Procedure.

3 III.

DISCUSSION

Wiesand’s principal argument on appeal, as in the trial court, is that Zorikova did not serve her with the complaint and summons and so she did not have actual notice of this case until months after the default judgment was entered. We conclude the trial court properly found that Wiesand was served on July 1, 2023.

A. Legal Principles and Standard of Review Section 473 authorizes trial courts to vacate a void judgment. (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020.) A default judgment entered against a defendant who was not properly served is void. (California Capital Ins. Co. v. Holden (2024) 17 Cal.5th 207, 214.) We review the trial court’s order denying a motion to vacate under section 473 for an abuse of discretion and its underlying factual findings for substantial evidence. (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230.) In doing so, “we do not reweigh evidence or reassess the credibility of witnesses.”

(Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623.)

B. Analysis The trial court denied Wiesand’s motion to vacate on the ground that the default judgment was properly entered because she was served with the complaint and summons on July 1, 2023, yet she did not timely answer. We find no error.

Although Wiesand claimed she was not served, Zorikova claimed otherwise and supported her position with substantial evidence. The trial court found Zorikova’s 4 evidence credible and Wiesand’s evidence not credible. Because, as explained below, those credibility findings are not arbitrary nor unreasonable, we are bound by them.

(Shapell SoCal Rental Properties, LLC. v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th 198, 218; see also First American Title Ins. Co. v. Banerjee (2022) 87 Cal.App.5th 37, 43 [appellate court would not reweigh credibility determination of conflicting evidence about whether defendant was properly served].)

The trial court relied heavily on emails between Zorikova and Wiesand in late July 3 and early August 2023. In that email exchange, Wiesand refers to “the documents your server gave me,” which the court reasonably interpreted as “clearly indicating that she was served with the summons and complaint.” The court also noted that Wiesand told Zorikova that the documents had no case number nor hearing date, which the court reasonably interpreted as further proof that the documents were the summons and complaint since the lack of a case number and hearing date could suggest they were a summons and complaint initiating a lawsuit. In the same email, Wiesand said she would “generally deny every claim in your absurd claim,” which further suggests the documents served were the summons and complaint because it indicates that Wiesand intended to file a general denial in response to a complaint. Although the trial court did not rely on 3 The emails are between Wiesand and an email account of someone by the name of “Boris Stein.” The account belongs to Zorikova, and Boris Stein is an apparent pseudonym. Although the emails are not authenticated and appear to have been copied and pasted onto pleading paper by Zorikova, Wiesand did not object to the emails (or any of Zorikova’s evidence submitted in opposition to Wiesand’s motion to vacate). The trial court thus properly relied on them.

5 this comment, it supports the trial court’s finding that Wiesand was properly served.

Critically, Wiesand ignores on appeal that the trial court observed that she told Zorikova in another email that she would “quash service” because of the missing information on the documents, including the “summons and attachments.” The trial court properly found that these comments suggest that that the documents served on Wiesand were the summons and complaint.

Finally, in other emails, Zorikova told Wiesand that she would move for a default judgment if Wiesand did not “answer the complaint” by July 31, told her how she would accept service of the answer, and provided a copy of the summons. This is more evidence supporting the trial court’s finding that Zorikova served Wiesand with the summons and complaint on July 1, 2023.

In short, the trial court reasonably interpreted the email exchange between Zorikova and Wiesand as showing that Wiesand was served with the summons and complaint. That and the fact that the proof of service of summons stated that the summons and complaint were served on July 1, 2023, provide substantial evidence for the trial court’s finding that Wiesand was served with the summons and complaint on July 1, 2023.

6 Wiesand next argues the trial court erred because Zorikova did not serve her with the request for entry of default. Although Wiesand properly raised the issue in the trial court, the trial court did not address it. Nonetheless, because there is no statement of decision, we must assume the trial court made all factual findings necessary to support the judgment so long as substantial evidence supports them. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.)

The only copy of Zorikova’s request for entry of default in the record on appeal does not state, as it must, that she mailed a copy of the request to Wiesand. (See CIV- 100, § 6.) Nor is there a proof of service stating that she mailed a copy of it to Wiesand.

But Zorikova’s evidence filed in support of her opposition to the motion to vacate, which the trial court found credible, provides substantial evidence that Zorikova mailed a copy of the request for entry of default to Wiesand. In her declaration, Zorikova stated that she “served Wiesand by mail a request for entry of default on 08/01/2023.” Jeong similarly stated in her declaration that she “mailed [a] copy of [a] default package” to Wiesand on August 1, 2023.

Like the trial court, we find the Zorikova and Jeong’s declarations “questionable”

and “unclear,” because they are at times internally inconsistent or conflict with other evidence in the record. For instance, Zorikova’s declaration in support of the default judgment states that she mailed a request of the entry of default not on August 1, 2023, but on August 28, 2023, nearly a month after filing the request for entry of default and the default being entered. But the trial court ultimately found Zorikova’s evidence in support 7 of her opposition to the motion to vacate (including her declaration) to be credible, and we are bound by that determination here. (People v. Brown (2014) 59 Cal.4th 86, 106 [“‘Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.’”]; People v. Collins (2021) 65 Cal.App.5th 333, 345 [trier of fact “may accept some parts of a witness’s testimony and reject other parts”].) Zorikova and Jeong’s declarations stating that they mailed a copy of the request for entry of default to Wiesand provide substantial evidence for the trial court’s implied finding that Wiesand received actual notice of the request for entry of default. (See People v. Smith (2011) 198 Cal.App.4th 415, 427 [witness’s internally inconsistent testimony was substantial evidence of defendant’s guilt]; People v. Cortes (1999) 71 Cal.App.4th 62, 73-74 [same];

People v. Collins, supra, at p. 345 [trier of fact considers internal inconsistencies in witness’s testimony and appellate court resolves them in favor of the judgment].)

Finally, Wiesand argues Zorikova did not properly serve a statement of damages under section 425.11. She notes that the proof of service for Zorikova’s application for default judgment incorrectly lists Wiesand’s address as “1025 Gilman” when it is “10125 Gilman.” Wiesand forfeited this argument by failing to raise it in the trial court.

8 IV.

DISPOSITION

The trial court’s order denying Wiesand’s motion to vacate is affirmed. Zorikova may recover her costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON Acting P. J.

We concur:

FIELDS J.

LEE J.