Fragoso v. La Come CA2/5

Opinion

Filed 9/21/26 Fragoso v. La Come CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.