Wednesday, September 23, 2026
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C.A. Affirms Denial of Relief to Defendant Whose Lawyer Did Not Show Up for Trial
Justices Say There Was No Default Where Party, an Out-of-State Lawyer, Handled Case for Himself, and Lost; No Abuse of Discretion Found
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed a postjudgment order denying relief to a litigant whose lawyer failed to show up for a one-day court trial and proceeded on his own, losing.
Monday’s unpublished opinion by retired Los Angeles Superior Court Judge Sanjay Kumar, sitting on assignment, affirms a $203,963.05 judgment against Joseph La Come (which includes a $1,000 sanction, the balance being based on a debt) awarded to Eduardo Fragoso.
In arguing for relief, La Come set forth in a May 14, 2025 motion:
“In general, a judge cannot conduct a civil trial without one of the attorney’s being present if that party is represented by an attorney. A party has the right to representation, and their attorney is responsible for presenting the case on their behalf. The right to counsel in civil cases is essential for ensuring equal access to justice for all. Here, the Defendant appeared at the time of trial only after he happened to discover the date of trial was that day, and was thereafter forced into representing himself without any preparation, or familiarity with the rules of evidence.”
The motion continues:
“The Court made no effort to contact, or, give Defendant time to contact his attorney. The Court made no mention of Defense counsel and immediately forced Defendant into trial, self represented. Accordingly, this came as a complete ‘surprise’ to Defendant and was caused by a calendaring ‘mistake’ on the part of his counsel. Defendant should not be penalized for that mistake and therefore his ‘surprise’ and ‘excusable neglect’ should apply within the meaning of CCP § 473(b).”
In denying relief under Code of Civil Procedure §473(b), Los Angeles Superior Court Judge Richard Fruin remarked that the excuse for his nonappearance by San Jose attorney Eliyahu Yuli Kaplunovsky—that he had “miscalendared” the trial—was “probably a fabrication.”
Fruin explained in his July 17, 2025 order that Kaplunovsky did not attend the case management conference or the final status conference and “did not appear at trial, and did not contact the Court with an excuse for his failure to appear at the trial.”
The judge struck La Come’s cross complaint and assessed attorney fees against the defendant in the amount of $30,465.00.
Respondent’s Brief
Arguing for an affirmance, Westlake Village attorneys Alana B. Anayaand Joseph P. Graziano of Anaya Law Group said (with emphasis in the original):
“Appellant’s counsel received notice of the trial date a total of 8 times in 4 separate documents on two separate dates….
“Appellant (a Texas attorney licensed since 2012…) appeared at trial and cross-examined respondent….
“Appellant’s due process rights were not violated in this matter. Appellant also fails to demonstrate how if counsel did appear at trial the result at trial would have been different.”
Mandatory Relief Provision
Kumar wrote that La Come did not distinguish between the mandatory and discretionary aspects of §473(b), saying that to the extent he was contending that relief from default was obligatory in light of his attorney’s admission of fault, the point lacks merit. The mandatory provision says, in part:
“[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against the attorney’s client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against the attorney’s client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
Kumar responded:
“Here, the judgment La Come sought to vacate was not the result of any default—it followed a trial in which La Come participated.”
He pointed out in a footnote:
“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.”
The acting justice continued:
“Because La Comes 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.’…We will not second-guess the court’s credibility finding that La Comes counsel ‘probably...fabricat[ed]’ the mis-calendaring error.”
The case is Fragoso v. La Come, B348689.
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