Filed 9/21/26 Fragoso v. La Come CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
EDUARDO ADRIAN FRAGOSO, B348689
Plaintiff, Cross-defendant (Los Angeles County
and Respondent, Super. Ct. No.
24STCV10923)
v.
JOSEPH LA COME,
Defendant, Cross-
complainant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Richard L. Fruin, Judge. Affirmed.
Eliyahu Kaplunovsky for Defendant, Cross-complainant
and Appellant.
Anaya Law Group, Alana B. Anaya and Joseph P. Graziano
for Plaintiff, Cross-defendant and Respondent.
******
An attorney representing the defendant in a contract
dispute failed to appear at trial, and so the defendant
represented himself at the one-day bench trial. After a six-figure
judgment was entered against the defendant, he moved to vacate
the judgment on the ground that his attorney’s failure to appear
at trial was due to a calendaring mistake. The trial court denied
the motion, finding the attorney fabricated the purported
mistake. The defendant’s appeal from that ruling lacks an
adequate record and fails on the merits. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
Our recitation of the facts and procedural background is
severely hampered by the wholly inadequate record provided in
this appeal. We cannot describe the dispute between the parties,
as no pleadings are in the record. We cannot describe the trial
that took place, as no transcripts are in the record. We cannot
describe the motion to vacate the judgment following that trial,
as no motion papers are in the record. Thus, we provide a brief
summary of the trial court proceedings to the extent the scant
record allows.
On May 1, 2024, Eduardo Fragoso (plaintiff) filed a
contract-based lawsuit against Joseph La Come (La Come). La
Come filed a cross-complaint.
2
At a case management conference in September 2024, the
trial court set May 12, 2025, as the date for a bench trial, with
the final status conference to be held on May 2, 2025. Although
La Come’s counsel did not attend that hearing, plaintiff served
counsel with notice of the final status conference and trial date.
After months of litigation—including a demurrer, motion to
strike, and discovery motion—the case proceeded to the final
status conference. La Come’s counsel did not appear at the final
status conference. In advance of trial, plaintiff filed a trial brief,
exhibit list, and witness list. La Come did not file any trial
documents.
Trial was conducted on May 12, 2025, as scheduled. La
Come appeared, but his counsel did not. According to a nunc pro
tunc order entered on July 17, 2025, La Come (who the trial court
noted is an attorney) cross-examined plaintiff. Upon considering
La Come’s answer to plaintiff’s complaint and two exhibits (a
“transfer agreement” and “itemized payments”), the court
awarded plaintiff $203,963.05 in damages and dismissed La
Come’s cross-complaint. The original minute order for the one-
day trial which the nunc pro tunc order replaced is not in the
record on appeal.1
The court entered judgment for plaintiff the next day.
On May 19, 2025, La Come filed a motion to vacate the
judgment, reinstate his cross-complaint, and set the matter for
trial anew. The record on appeal does not contain the motion or
the declaration of La Come’s attorney in support of the motion.
1 Because La Come failed to designate the original minute
order as part of the record on appeal, La Come has prevented this
court from addressing his argument that the nunc pro tunc order
was improper.
3
Plaintiff was not served with the motion, but discovered it on the
docket and filed an opposition. The record on appeal does not
contain the opposition.
The trial court held a hearing on La Come’s motion to
vacate on July 17, 2025. According to the settled statement of
that hearing, La Come’s counsel argued that he “mis-calendared
the trial date” and because of that “mistake,” La Come was
entitled to relief. It was “highly prejudicial,” counsel argued, to
“force[]” La Come to appear at trial on his own and make no effort
to contact counsel. The court issued a ruling denying the motion
to vacate on two grounds.2 First, procedurally, the court denied
the motion because La Come “did not serve the motion on
plaintiff’s counsel.” Second, on the merits, the court found La
Come’s counsel’s “claim that he mis-calendared” the trial date to
“probably [be] a fabrication.”
La Come appealed.
DISCUSSION
To begin, the trial court’s order denying La Come’s motion
to vacate is presumed correct, and it is La Come’s burden to
overcome that presumption by affirmatively showing error on an
adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609;
Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1140–1141; Ballard v. Uribe (1986)
41 Cal.3d 564, 574; Cal. Rules of Court, rule 8.120.) “It is
axiomatic it is the appellant’s responsibility to provide an
adequate record on appeal. [Citations.]” (Lincoln Fountain
Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co.
2 The trial court simultaneously granted plaintiff’s motion
for attorney fees. The court entered an amended judgment that
added a $30,465 fee award as well as costs.
4
(2006) 136 Cal.App.4th 999, 1004, fn. 1.) We cannot review any
arguments or information presented to the trial court giving rise
to the ruling at issue in this appeal because the record lacks the
reporter’s transcript of the trial or an adequate substitute such as
a settled statement, La Come’s motion to vacate, his counsel’s
declaration, and plaintiff’s opposition.3 In the absence of a proper
record affirmatively demonstrating that the denial of La Come’s
motion to vacate was erroneous, we must presume that order is
correct and affirm. (Maria P. v. Riles (1987) 43 Cal.3d 1281,
1295–1296; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032,
1039.)
La Come argues that the court erred in denying the motion
to vacate by assessing the credibility of his counsel’s mis-
calendaring mistake. This argument conflates the two distinct
bases for relief under Code of Civil Procedure section 473,
subdivision (b) (section 473(b)). One basis provides mandatory
relief: The trial court “shall” “vacate” a “default” or a “resulting
default judgment or dismissal” if an application for relief is made
within six months after entry of judgment and is supported by an
attorney’s declaration “attesting to the attorney’s mistake,
inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd.
(b), italics added.) Relief is mandatory in that situation even if
the attorney’s neglect was inexcusable. (SJP Limited
Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511,
3 In his notice designating the record on appeal, La Come did
identify the motion to vacate and his counsel’s declaration, but
the clerk of the trial court certified that those filings are
“missing” from the court file and that counsel did not supply the
court with the filings when requested by the clerk. La Come
made no attempt to augment the record on appeal or request
judicial notice of these documents.
5
516–517.) The other basis provides discretionary relief: The trial
court “may, upon any terms as may be just, relieve a party or the
party’s legal representative from a judgment, dismissal, order, or
other proceeding taken against the party through the party’s
mistake, inadvertence, surprise, or excusable neglect.” (Code Civ.
Proc., § 473, subd. (b), italics added.)
Here, the judgment La Come sought to vacate was not the
result of any default—it followed a trial in which La Come
participated.4 (Leader v. Health Industries of America, Inc.
(2001) 89 Cal.App.4th 603, 616 [“Mandatory relief only extends to
vacating a default which will result in the entry of a default
judgment, a default judgment, or an entered dismissal.”]; English
v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 133
[same]; see The Urban Wildlands Group, Inc. v. City of Los
Angeles (2017) 10 Cal.App.5th 993, 996, 1001 [“the litigants who
lose their day in court are those parties that fail to respond to a
dismissal motion because of an attorney’s error. That is not the
case here.”].)
Because La Come’s motion to vacate must therefore have
been based on the discretionary-relief portion of section 473(b),
the trial court’s denial of that relief will not be disturbed “absent
a clear showing of abuse.” (Zamora v. Clayborn Contracting
Group, Inc. (2002) 28 Cal.4th 249, 257; Hearn v. Howard (2009)
177 Cal.App.4th 1193, 1200.) We will not second-guess the
court’s credibility finding that La Come’s counsel “probably . . .
fabricat[ed]” the mis-calendaring error. (McClain v. Kissler
4 Although the trial court “dismissed” La Come’s cross-
complaint, there is nothing in the record to indicate that the
dismissal was akin to a default as opposed to being the logical
consequence of the judgment in favor of plaintiff.
6
(2019) 39 Cal.App.5th 399, 415 [“[i]n reviewing the trial court’s
factual findings regarding excuse . . ., we defer to the trial court’s
assessments of credibility”]; Shamblin v. Brattain (1988) 44
Cal.3d 474, 479.) And even if truthful, a court acts well within its
discretion in finding a mis-calendaring error inexcusable.
(Zamora, at p. 258 [“‘Conduct falling below the professional
standard of care . . . is not . . . excusable”].)
La Come makes one further argument—namely, that the
combined effect of the judgment for plaintiff plus attorney fees,
dismissal of his cross-complaint, and denial of his motion to
vacate altogether deprived La Come of due process. This
argument ignores (and the brief on appeal omits) that La Come
did have his day in court, albeit without his counsel. And while
the underlying policy of section 473(b) favors “the determination
of actions on their merits” (Even Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th
830, 839; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980), that
policy does not alone dictate granting a motion to vacate
particularly where, as here, the motion challenges the propriety
of judgment reached after a trial on the merits. La Come bore
the burden of making the threshold showing of his counsel’s
“mistake, inadvertence, surprise, or excusable neglect” to warrant
discretionary relief; as noted above, La Come did not make that
showing.
7
DISPOSITION
The order is affirmed. Plaintiff is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KUMAR, J.*
We concur:
BAKER, Acting P. J.
MOOR, J.
* Retired Judge of the Superior Court of Los Angeles
County, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
8