Filed 8/20/14 Craig v. Saddle Ranch Chop House CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


DEON CRAIG,                                                          B251014

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. EC058553)
         v.

SADDLE RANCH CHOP HOUSE, LLC,

         Defendant and Respondent.



         APPEAL from an order of the Superior Court of Los Angeles County,
Samantha P. Jessner and Laura A. Matz, Judges. Affirmed.
         O’Neil & Matusek and Henry John Matusek II, for Plaintiff and Appellant Deon
Craig.
         Collins Collins Muir + Stewart, Melinda W. Ebelhar and Edward J. Riffle for
Defendant and Respondent, Saddle Ranch Chop House, LLC.
                                                   _____________
       Deon Craig appeals the trial court’s order granting the motion of Saddle Ranch
Chop House, LLC, pursuant to Code of Civil Procedure section 473, subdivision (d),1 to
vacate the default and default judgment entered in favor of Craig, as well as the court’s
order imposing a $1,000 penalty on Saddle Ranch, payable to Craig or his attorney,
pursuant to section 473, subdivision (c)(1)(A), rather than awarding actual attorney fees
and costs. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Craig’s Personal Injury/Premises Liability Lawsuit
       In a Judicial Council form complaint filed May 25, 2012, Craig alleged he was
injured on October 10 or 11, 2010 while a customer at a restaurant in Universal City
owned by Saddle Ranch, a limited liability company, when the chair in which he was
sitting collapsed.2 The complaint did not set forth the amount of damages sought.
       Prior to filing the lawsuit personnel from the law firm representing Craig checked
the California Secretary of State’s website and learned Saddle Ranch’s agent for service
of process was Russ Cashdan, an attorney, with a street and floor address in an office
tower in Century City. The summons and complaint were personally served on Cashdan
on June 12, 2012 at his law firm in Century City. Saddle Ranch did not respond to the
complaint.
       2. The Requests for Entry of Default and the Default Judgment
       Craig’s counsel filed a request for entry of default on August 10, 2012. The
request was served by mail directed to Saddle Ranch (not Cashdan) at the street address
for the office tower listed for Cashdan but without his name, the specific floor identified




1
       Statutory references are to the Code of Civil Procedure unless otherwise indicated.
2
       Saddle Ranch has stated the Universal City restaurant is independently owned and
operated by REA 2003-1, LLC, pursuant to a license from Saddle Ranch. According to a
declaration from Saddle Ranch’s general counsel, the company has no interest in
REA 2003-1, LLC.


                                             2
on the Secretary of State’s website or the name of his law firm. The default was entered
the same day.
       While preparing the request for entry of default counsel realized no statement of
damages had been served as required by section 425.11. Accordingly, a statement of
damages was prepared, reflecting a prayer for general damages (pain and suffering and
mental distress) of $1 million and special damages of $50,000 for current estimated
medical expenses, $100,000 for future medical expenses and $100,000 for future lost
earnings.3 On August 16, 2012 the process server for Craig’s attorney purported to effect
substituted service of the statement of damages, together with another copy of the
summons and complaint, by leaving them at the front desk of Cashdan’s law firm with
“Julio Rodriguez,” an individual who, according to the process server, “appeared to be
the person in charge,” followed by mailing a set of the documents to the office address.
       On October 3, 2012 Craig filed a “stipulation,” signed only by his counsel, to set
aside the default entered August 10, 2012 due to the failure to provide an adequate
statement of damages. The court granted the request. On October 24, 2012 a new
request for entry of default was filed, served again by mail directed to Saddle Ranch at
Cashdan’s business address without his name, specific floor or the name of his law firm.
       A default prove-up hearing was held April 16, 2013 at which Craig testified. On
May 1, 2013 the court entered a judgment of $468,670.50 against Saddle Ranch.
       Craig’s counsel has explained he first learned that Cynthia Gillette, Saddle
Ranch’s general counsel, had replaced Cashdan as the company’s agent for service of
process during its research for the collection process immediately following entry of
judgment. Craig’s memorandum of costs was served on Gillette at her address in
Carlsbad, California, as well as mailed to the company’s headquarters address, in
May 2013.




3
       The nature of Craig’s alleged injuries from the collapsed chair is not disclosed in
the record on appeal.


                                             3
       3. The Motion To Vacate the Default and Default Judgment
       On June 12, 2013 Saddle Ranch moved for an order vacating the default and
default judgment based in part on miscommunications between it and its insurance
company concerning the handling of the lawsuit and on the ground it was never served
with a proper statement of damages and was unaware that a default and default judgment
had been entered until it received the cost memorandum in May 2013.
       In her declaration in support of Saddle Ranch’s motion, Gillette stated she had
received the original summons and complaint from Cashdan on June 13, 2012. Gillette
forwarded the documents to Saddle Ranch’s insurance broker the same day. Until
delivery of a notice of case reassignment in early April 2013—the first case document
Saddle Ranch had received since the summons and complaint—Gillette believed the
lawsuit was being properly handled by its insurer, Liberty International Underwriters.
Gillette also described some confusion whether the incident had occurred at the Saddle
Ranch location on the Sunset Strip, which is a restaurant owned by a sister company, or
at the location in Universal City, which is independently owned and operated by a
licensee of Saddle Ranch. Although now aware the lawsuit was still pending, Gillette did
not learn a default had been entered until she was served directly by Craig with the
postjudgment memorandum of costs.
       Saddle Ranch’s motion explained that Cashdan had been replaced by Gillette as its
agent for service of process as of June 18, 2012, as reflected in a Statement of
Information (Limited Liability Company) filed that date with the Secretary of State. (A
copy of the document was provided as an exhibit with Saddle Ranch’s reply
memorandum in support of its motion.) Accordingly, Saddle Ranch argued the attempted
service of the statement of damages was ineffective, and the resulting default and default
judgment were void. In addition, Cashdan submitted a declaration asserting no individual
named Julio Rodriguez worked at his law firm during 2012 and declaring, “[b]ased on
my personal knowledge, I never received any Request for Entry of Default” in the case.




                                             4
       4. Craig’s Opposition; the Court’s Order Granting the Motion
       Craig opposed the motion, arguing Saddle Ranch had not demonstrated excusable
neglect or mistake for failing to answer the complaint (suggesting Saddle Ranch knew its
insurer had declined to handle the action) and, in addition, the motion under section 473,
subdivision (b), filed more than six months after entry of the default, was untimely.
Craig also argued Cashdan’s actual authority to receive service of process continued
through the date of the substituted service in August 2012 in the absence of any notice
from Saddle Ranch that his authority had been revoked.
       The trial court granted Saddle Ranch’s motion to vacate, citing section 473,
subdivision (d), ruling the judgment was void for lack of valid service of a statement of
damages. The court rejected Craig’s argument Cashdan was Saddle Ranch’s ostensible
agent, capable of accepting service on its behalf, notwithstanding the filing with the
Secretary of State replacing Cashdan with Gillette because there were no facts showing
either intentional conduct or want of ordinary care by Saddle Ranch that would have
made Craig (or his counsel) believe Cashdan was still its agent as of August 16, 2012.
The court also explained, even if Saddle Ranch had actual notice of the statement of
damages, under section 425.11 that statement must be actually served before a default
may be entered.
       The trial court denied Craig’s request for an award of attorney fees and costs of
$11,259.75 as a condition for vacating the default and default judgment, but imposed a
$1,000 penalty to be paid by Saddle Ranch to Craig or Craig’s counsel under section 473,
subdivision (c)(1)(A).4




4
        The court explained, “I think pursuant . . . to CCP section 473(c)(1), whenever a
court grants relief from a default, default judgment or dismissal, the court may do any of
the following: (A) impose a penalty of no greater than $1,000 upon—so I believe that
under that section I may grant or I may impose a penalty. You call it sanctions, I call it
fee shifting, they call it a penalty . . . and if I go by that section it can’t exceed $1,000
anyway.”


                                              5
                                       DISCUSSION
       1. The Trial Court Properly Set Aside the Default and Default Judgment Based on
          Craig’s Failure To Validly Serve the Statement of Damages
              a. Standard of review
       Ordinarily, a motion to vacate a default and set aside a default judgment “‘“is
addressed to the sound discretion of the trial court, and in the absence of a clear showing
of abuse . . . the exercise of that discretion will not be disturbed on appeal.”’ [Citations.]
The appropriate test for abuse of discretion is whether the trial court exceeded the bounds
of reason.” (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)
Whether a default judgment is void due to failure to effectuate valid service of process,
however, is a question of law subject to de novo review. (Trackman v. Kenney (2010)
187 Cal.App.4th 175, 182; accord, Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852,
862 [whether a judgment is void for improper service of statement of damages is a
question of law we determine de novo]; see also Pasadena Medi-Center Associates v.
Superior Court (1973) 9 Cal.3d 773, 779, fn. 6 (Pasadena Medi-Center).)
       In reviewing the trial court’s grant of relief from default, “‘It is the policy of the
law to favor, whenever possible, a hearing on the merits. Appellate courts are much more
disposed to affirm an order when the result is to compel a trial on the merits than when
the default judgment is allowed to stand. [Citation.] . . .‘“‘Even in a case where the
showing . . . is not strong, or where there is any doubt as to setting aside of a default, such
doubt should be resolved in favor of the application.’”’” (Ramos v. Homeward
Residential, Inc. (2014) 223 Cal.App.4th 1434, 1444, italics omitted; accord, Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 980 [“[b]ecause the law favors disposing of cases on
their merits, ‘any doubts in applying section 473 must be resolved in favor of the party
seeking relief from default”].)
              b. Rules governing service on a limited liability company’s designated
                 agent
       Section 416.10, subdivision (a), authorizes service on a corporation by delivery of
a copy of the summons and complaint “[t]o the person designated as an agent for service



                                               6
of process” as provided by various sections of the Corporations Code. (Somewhat more
broadly, section 416.10, subdivision (b), permits service on specified officers of a
corporation “or a person authorized by the corporation to receive service of process.”)
Similarly, former section 17061, subdivision (b) (Stats. 1996, ch. 57, § 9, p. 239), part of
the now-repealed Beverly-Killea Limited Liability Company Act,5 provided service upon
a limited liability company may be effected by personal delivery of a copy of any process
to an individual designated by it as its agent for service of process.
       Former section 17057, subdivision (b) (Stats. 1994, ch. 1200, § 27, pp. 7296-
7362), required each limited liability company to maintain in California an agent for
service of process. Pursuant to former section 17060, subdivision (a)(2) (Stats. 2011,
ch. 204, § 13), every limited liability company, within 90 days of filing its original
articles of organization and biennially thereafter, had to file a statement with the
Secretary of State containing the name and address of that agent for service of process.
(Former section 17060, subdivision (a), required the statement to list other information,
including the street address of the principal executive office, the mailing address of the
limited liability company if different from the street address of its principal executive
office and the name and complete business or residence address of any manager and the
chief executive officer.) Former section 17060, subdivision (d), authorized the limited
liability company to change the designated agent at times other than the filing of the

5
       The Beverly-Killea Limited Liability Company Act was repealed and replaced by
the California Revised Uniform Limited Liability Company Act as of January 1, 2014,
Corporations Code section 17701.01 et seq. (See Stats. 2012, ch. 419, § 20.) Because
the events underlying this appeal occurred in 2012, the former provisions governing
limited liability companies control. (See Corp. Code, § 17713.04, subd. (b) [“Except as
otherwise specified in this title, this title applies only to the acts or transactions by a
limited liability company or by the members or managers of the limited liability company
occurring, or contracts entered into by the limited liability company or by the members or
managers of the limited liability company, on or after January 1, 2014. The prior law
governs all acts or transactions by a limited liability company or by the members or
managers of the limited liability company occurring, or contracts entered into by the
limited liability company or by the members or managers of the limited liability
company, prior to that date.”].)


                                              7
biennial statement of information with the Secretary of State: “When changing its agent
for service of process or when the address of the agent changes, the limited liability
company shall file a current statement containing all the information required by
subdivision (a). Whenever any statement is filed pursuant to this section changing the
name and address of the agent for service of process, that statement supersedes any
previously filed statement pursuant to this section, the statement in the original articles of
organization, and the statement in any restated articles of organization that have been
filed . . . .”6 The change in designated agents for service of process is effective upon
filing the new statement of information with the Secretary of State. (See former Corp.
Code, § 17061, subd. (b) [“[n]o change in the address of the agent for service of process
or appointment of a new agent for service of process shall be effective until an
amendment to the statement described in Section 17060 is filed”].)
           c. A statement of damages must be served prior to entry of default and a
              default judgment
       Section 425.10, subdivision (b), mandates that the complaint in actions for
personal injury or wrongful death not state the amount of damages sought.
Section 425.11, in turn, authorizes service of a statement of the nature and amount of
damages in personal injury and wrongful death actions and provides, before a default
may be taken in such an action, the plaintiff must give the defendant notice of the special
and general damages sought. (§ 425.11, subd. (c) [“the plaintiff shall serve the statement
on the defendant before a default may be taken”]; see Schwab v. Rondel Homes, Inc.
(1991) 53 Cal.3d 428, 435 [“We cannot allow a default judgment to be entered against
defendants without proper notice to them of the amount of damages sought. A defendant
is entitled to actual notice of the liability to which he or she may be subjected, a
reasonable period of time before default may be entered.”].) “‘The purpose of


6
       Current section 17702.09, subdivision (d), contains substantially identical
language, including the provision that “[w]henever any statement is filed pursuant to this
section, that statement supersedes any previously filed statement pursuant to this
section.”


                                              8
section 425.11 is to “‘give defendants “one last clear chance” to respond to allegations of
complaints by providing them with “actual” notice of their exact potential liability.’”’”
(Sakaguchi v. Sakaguchi, supra, 173 Cal.App.4th at p. 860.) When, as here, a defendant
has not appeared in an action, the statement of damages must be served in the same
manner as a summons. (§ 425.11, subd. (d)(1); Sakaguchi, at p. 860.)
               d. Service of the statement of damages on Cashdan was not valid
       Even were we to assume Craig’s delivery of the statement of damages to an
individual at the front desk of Cashdan’s office and subsequent mailing of the document
to his business address otherwise satisfied the requirements for substituted service,
Cashdan was not, in fact, authorized to accept service of process for Saddle Ranch on
August 16, 2012. As discussed, Saddle Ranch demonstrated it had changed its
designated agent for service of process from Cashdan to Gillette on June 18, 2012 by
filing a new statement of information on that date with the Secretary of State. The
change was effective upon filing (former Corp. Code, § 17061, subd. (b)) and
immediately superseded the previous filing, which named Cashdan and upon which Craig
mistakenly relied (Corp. Code, § 17060, subd. (d)). As of the date of delivery of the
statement of damages Cashdan was neither a designated agent for service nor one of the
limited liability company’s 11 officers or managers identified in the statement of
information.
       Although acknowledging Saddle Ranch’s change in its designation of the
company’s agent for service of process, relying on Pasadena Medi-Center, supra,
9 Cal.3d 773 and the language of former section 17060, subdivision (f), Craig contends
service on Cashdan on August 16, 2012 was still proper under the doctrine of ostensible
authority because neither Saddle Ranch nor Cashdan had notified Craig of Cashdan’s
change in status. Craig misapprehends both the requirements for recognizing a supposed
agent’s ostensible or apparent authority to bind a principal and the meaning of former
section 17060, subdivision (f).
       Ostensible agency is based on principles of estoppel. (Associated Creditors’
Agency v. Davis (1975) 13 Cal.3d 374, 399.) “An agency is ostensible when the principal


                                             9
intentionally, or by want of ordinary care, causes a third person to believe another to be
his agent who is not really employed by him.” (Civ. Code, § 2300; see also Civ. Code,
§ 2317 [“[o]stensible authority is such as a principal, intentionally or by want of ordinary
care, causes or allows a third person to believe the agent to possess”].) “A principal is
bound by acts of his agent, under a merely ostensible authority, to those persons only
who have in good faith, and without want of ordinary care, incurred a liability or parted
with value, upon the faith thereof.” (Civ. Code, § 2334.) “‘It is elementary that there are
three requirements necessary before recovery may be had against a principal for the act of
an ostensible agent. The person dealing with the agent must do so with the belief in the
agent’s authority and this belief must be a reasonable one; such belief must be generated
by some act or neglect of the principal sought to be charged; and the third person in
relying on the agent’s apparent authority must not be guilty of negligence.’” (Associated
Creditors’ Agency, at p. 399.)
       These principles were applied to uphold service on an ostensible agent in
Pasadena Medi-Center, supra, 9 Cal.3d 773. In that case the most recent official
corporate document (an application for a stock permit) incorrectly identified an
individual as a corporate officer (Albert A. Binney, Sr., rather than Albert A. Binney, Jr.).
That misidentified individual was served with process on behalf of the corporation. The
Supreme Court held the corporation had conferred ostensible authority to accept service
of process on Binney, Sr. through its “want of ordinary care.” (Pasadena Medi-Center, at
p. 780.) Although the stock permit application was three years old, the Court also found
the plaintiff had reasonably relied upon it because “no more recent document was
available.” (Id. at p. 781.) “Indeed, if defendant corporation had complied with its
obligation under Corporations Code section 3301 to file a list of officers and agents
authorized to accept service of process, plaintiff would have had no need to rely on the
stock permit application.” (Ibid.; see also Associated Creditors’ Agency v. Davis, supra,
13 Cal.3d at pp. 402-403 [reasonable to assume agency from displayed license even if
license was false].)



                                             10
       Here, in contrast, although Saddle Ranch had named Cashdan as its agent for
service of process for an earlier period, which included the date on which the original
summons and complaint were served, Saddle Ranch did not “intentionally, or by want of
ordinary care,” cause Craig to believe Cashdan remained its agent for service of process
as of August 16, 2012. Saddle Ranch fully complied with the statutory requirements for
changing its designated agent for service through its filings with the Secretary of State on
June 18, 2012. That is, Saddle Ranch did nothing to create the belief in Cashdan’s
continued agency relationship to the company nor did it fail to correct some error or
misstatement suggesting the agency continued to exist. Accordingly, just as Craig was
responsible for determining upon whom the original summons and complaint should be
served, it remained his responsibility to confirm the proper identity of Saddle Ranch’s
agent for service of process when attempting to serve the mandatory statement of
damages pursuant to section 425.11, subdivision (d)(1), upon a corporate defendant that
had not appeared in the action. (See generally Burr v. Capital Reserve Corp. (1969)
71 Cal.2d 983, 996 [no ostensible agency existed as principal did nothing to create a
belief in agency]; Hill v. Citizens Nat. Trust & Sav. Bk. (1937) 9 Cal.2d 172, 176-177 [no
ostensible agency created when appellant relied on a self-proclaimed agent with no action
from the principal].)
       Craig attempts to avoid the consequences of Saddle Ranch’s formal change in
designated agent by positing an affirmative duty to inform him of the change, quoting
former Corporations Code section 17060, subdivision (f), which provided, “This section
[requiring the filing of a statement of information, including the identity of the agent for
service of process and list of corporate officers] shall not be construed to place any
person dealing with the limited liability company on notice of, or under any duty to
inquire about, the existence or content of a statement filed pursuant to this section.”7


7
       Although Corporations Code section 17702.09 of the California Revised Uniform
Limited Liability Company Act is substantively identical to former section 17060,
requiring a limited liability company to file, and allowing it to revise, a statement of
information containing the names and addresses of company officers and managers and

                                             11
According to Craig, this provision means he was entitled to rely on the old information
submitted by Saddle Ranch to the Secretary of State, even if superseded by the
company’s subsequent filings.
       Craig misreads the limited protection afforded third parties by former
section 17060, subdivision (f). To be sure, that provision means a limited liability
company’s filing of a statement of information does not provide constructive notice of
the statement’s contents. Thus, if such a company represented that an individual was an
officer or managing agent, a party dealing with that individual would not be charged with
knowledge that the filed statement of information did not similarly identify him or her.
Reliance on the company’s statements or communicative conduct would not be deemed
unreasonable based on an inconsistency with the current statement of information.
Similarly, if Cashdan, having previously been properly identified as its agent for service
of process by Saddle Ranch, had himself indicated in some fashion that he continued to
serve in that capacity through August 16, 2012, the company might be estopped to deny
his continuing, ostensible authority notwithstanding the change in his status as reflected
in the newly filed statement of information. But here, where neither Saddle Ranch nor
Cashdan in any way communicated to Craig that Cashdan was, as of August 16, 2012, an
agent for service of process, it remained Craig’s obligation to determine how the
company should be served, just as it was when the lawsuit was initiated and the original
summons and complaint were personally delivered. Indeed, any other interpretation of
former section 17060, subdivision (f), would render meaningless the provision of former
section 17060, subdivision (d), which, as discussed, provided that the filing of a new
statement of information immediately superseded any previously filed statement. (See
generally Reno v. Baird (1998) 18 Cal.4th 640, 658 [“‘[c]ourts should give meaning to
every word of a statute if possible, and should avoid a construction making any word
surplusage’”]; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d
1379, 1387 [“a construction making some words surplusage is to be avoided”].)

an agent for service of process, the new section eliminated the language of former
section 17060, subdivision (f).


                                            12
       Craig’s counsel performed this relatively simple investigative task before filing the
postjudgment memorandum of costs in May 2013—an exercise that disclosed Gillette
was the designated agent for service of process. It was counsel’s responsibility to
undertake the same minimal inquiry in August 2012 rather than relying without
verification on the outdated information obtained several months earlier.
              e. Actual notice does not substitute for proper service of a statement of
                 damages
       In a final attempt to salvage the default judgment rather than litigate his personal
injury action on the merits, Craig asserts the judgment should be affirmed because Saddle
Ranch never disputed it had actual knowledge of the statement of damages prior to entry
of the default.8 However, as Saddle Ranch argues, and the trial court ruled, actual notice
does not excuse the requirement for proper service of the statement of damages under
section 425.11, subdivision (c). (See Summers v. McClanahan (2006) 140 Cal.App.4th
403, 414 [“no California appellate court has gone so far as to uphold a service of process
solely on the ground the defendant received actual notice when there has been a complete
failure to comply with the statutory requirements for service”].) “Our state appellate
courts have long held that due process requires formal notice of the defendant’s potential
liability, by service in the same manner as a summons.” (Schwab v. Southern California
Gas Co. (2004) 114 Cal.App.4th 1308, 1321.)
       In sum, the trial court properly set aside the default and default judgment against
Saddle Ranch based on Craig’s failure to validly serve a statement of damages on the
company through its designated agent for service of process as required by
section 425.11. Neither the doctrine of ostensible authority nor Saddle Ranch’s purported




8
       Saddle Ranch has always maintained actual knowledge of the statement of
damages was not material; regardless, Craig was obligated to properly serve the
statement of damages before a default could be entered. Nonetheless, in its respondent’s
brief Saddle Ranch argues nothing in the record suggests it in fact had actual notice of the
statement of damages prior to entry of default.


                                             13
actual knowledge of the statement of damages is sufficient under the circumstances here
to reinstate the vacated default judgment.9
       3. Craig Has Forfeited His Request for Additional Fees and Costs
       Although insisting the court should deny the motion, in their opposition papers in
the trial court Craig’s counsel urged, “should the inconceivable happen,” any order
granting the motion should be conditioned on reimbursement of all fees and costs,
totaling $11,259.75. Counsel cited section 473, without specific subdivision, as the basis
for the request. At the hearing on Saddle Ranch’s motion, when asked what authority
supported the award of fees and costs, counsel for Craig quoted language from section
473, subdivision (b), authorizing the court to impose “any terms as may be just” when
relieving a party from a judgment taken against it through its mistake, inadvertence,
surprise or excusable neglect. As discussed, rather than award the full amount sought by
Craig, the court imposed a $1,000 penalty to be paid by Saddle Ranch to Craig or Craig’s
counsel under section 473, subdivision (c)(1)(A).
       In his opening brief Craig contends the trial court misunderstood its discretion
under section 473, subdivision (b), to award fees and costs as a condition of vacating the
default. The cited language, however, applies only to discretionary relief granted
pursuant to that subdivision, not an order setting aside a void judgment under section 473,
subdivision (d), as occurred in this case. Section 473, subdivision (c), in contrast—the
provision utilized by the trial court—applies to any form of relief under section 473. (See
§ 473, subd. (c)(1) [“[w]henever the court grants relief from a default, default judgment,
or dismissal based on any of this provisions of the section, the court may do any of the
following . . .”].)
       For the first time in his reply brief Craig asserts the trial court had discretion to
grant the full amount of fees and costs requested under section 473, subdivision (c)(1)(C),


9
       In light of our affirmance of the trial court’s ruling under section 473,
subdivision (d), we do not consider whether relief would also have been appropriate
under section 473, subdivision (b), based upon Saddle Ranch’s mistake, inadvertence,
surprise or excusable neglect.


                                              14
which authorizes the trial court, in addition to imposition of a penalty no greater than
$1,000, to “[g]rant other relief as is appropriate.” This belated argument comes far too
late. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [“[o]bvious
reasons of fairness militate against consideration of an issue raised initially in the reply
brief of an appellant”]; see Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 368;
see also Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 [issues not raised in the trial
court cannot be raised for the first time on appeal]; Dietz v. Meisenheimer & Herron
(2009) 177 Cal.App.4th 771, 799-800 [appellant asserting error must have raised the
issue in the trial court and given the trial court an opportunity to correct the error].) The
issue has been forfeited.
                                        DISPOSITION
       The order is affirmed. Saddle Ranch is to recover its costs on appeal.



                                                          PERLUSS, P. J.

       We concur:


             WOODS, J.


             SEGAL, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.


                                               15
