Opinion
NOT TO BE PUBLISHED
APPEAL from an order the Superior Court of Los Angeles County, No. OSJ-1107 Elden Fox, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, and Joanne K. Nielsen, Deputy County Counsel for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Surety Lexington National Insurance Corporation (Lexington National) appeals from the summary judgment entered after the trial court denied the surety’s motion to vacate the forfeiture and exonerate the bail bond. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 8, 2007, Lexington National, through its agent, Chris Cox Bail Bonds, posted a bail bond (No. 2007-DD-006554) in the amount of $35,000 for the release of defendant Robert Isaac Pourat, who had been charged in Beverly Hills with violations of Health and Safety Code section 11351, and Penal Code sections 12031, subdivision (a)(1), and 12021, subdivision (a)(1). The bond required Pourat to appear in court on August 8, 2007 to answer charges. Pourat appeared as ordered. He appeared again on October 30, 2007, when the trial court ordered the case set for a preliminary hearing on December 6, 2007.
On December 5, 2007, the day before the scheduled preliminary hearing, Pourat’s mother called the family doctor to say that Pourat was sick. Dr. Harvey D. Paley has known the Pourat family for several years and arranged for Pourat to visit the physician at his residence. Pourat told the doctor that he “needed a note to reschedule a school appointment the next day.” Dr. Paley gave Pourat the note he requested. It indicates that Pourat had strep, tonsillitis, and sinusitis, was contagious and must not be out in public. The doctor declared that at no time was he aware of, or told that, Pourat had a court appearance the following morning.
Pourat did not appear in court on December 6, 2007. Based on the doctor’s note, the court issued but held a warrant and found good cause not to declare a bail forfeiture (Pen. Code, § 1305.1). At defendant’s request, the court continued the case 41 days to January 16, 2008.
Pourat failed to appear at the January 16, 2008 hearing and so the court forfeited bail. The bail agent and surety were timely notified of the forfeiture.
Upon receipt of the forfeiture, the bail agent declared he began an investigation to determine Pourat’s whereabouts. The agent interviewed Pourat’s mother, former girlfriends, co-defendants and other sources. He traced telephone numbers and Pourat’s former addresses. The agent regularly communicated with detectives in the Beverly Hills Police Department about Pourat’s possible whereabouts. The bail agent spoke to Dr. Paley in January 2008, and reviewed Pourat’s medical records. Pourat called the bail agent on December 6, 2007 to report that the case had been continued, but never mentioned his illness and failure to personally appear in court that day.
The bail agent learned that five days before the December 2007 court appearance, Pourat was allegedly involved with three others in a kidnapping for ransom and assault with a firearm incident in West Los Angeles and was sought by the Los Angeles Police Department (LAPD). It was the agent’s view that Pourat failed to appear in court for fear he would be arrested on new charges. His kidnapping co-defendants were in custody by then. The agent declared that he had been in continuous contact with the LAPD detectives to discuss the case and share information about Pourat. All indications were that Pourat had fled to France as his calls were being made from an international number. The LAPD Detective listened in on one of Pourat’s calls and reported to the agent that it was not likely that extradition would be approved in the Beverly Hills case. Hence, the bail agent called and wrote to the Deputy District Attorney to determine whether her office would approve extradition. The agent declared he had not heard back from the District Attorney. The agent observed that by the time he received the notice of forfeiture in January 2008, Pourat had had a 43-day head start on fleeing the jurisdiction and preventing the agent from returning him to custody.
Before expiration of the 185-day period, the bail agent filed a motion to vacate the forfeiture and exonerate the bond. Attached was the agent’s declaration setting forth the information above. The agent declared his belief that Pourat intentionally misled the court about his illness so that he could flee the jurisdiction. The trial court denied the motion to vacate without prejudice, and granted an order extending the appearance period by 90 days to October 6, 2008.
Before expiration of the 90-day extension, the bail agent filed a second motion to vacate forfeiture and exonerate the bond arguing that the failure of Pourat to appear was excusable and without the bail agent’s connivance or collusion. The court apparently considered this as a motion to extend the appearance time, because on October 6, 2008, the court continued the hearing on the motion another 90 days to January 5, 2009.
Pourat did not appear at the January 2009 hearing. The court denied the bail agent’s motion under Penal Code section 1305.4 and entered summary judgment seeking payment of the bail bond after forfeiture. The bail agent and surety were notified and filed their timely appeal.
This Court did not grant Lexington National’s request to take judicial notice of the proceedings in the trial court on April 23, 2009 which occurred after the judgment appealed from. (See e.g., In re Zeth S. (2003) 31 Cal.4th 396, 405.)
CONTENTIONS
Lexington National contends that the trial court erred in refusing to exonerate the bond because Pourat perpetrated a fraud on the court.
DISCUSSION
“When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. [Citation.] The surety that posted the bond then has a statutory ‘appearance’ period in which either to produce the accused in court and have the forfeiture set aside, or to demonstrate other circumstances requiring the court to vacate the forfeiture.” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657, fn. omitted, citing Pen. Code, §§ 1306, subd. (a) & 1305, subd. (a).) This “appearance” period is 180 days, plus five days for service by mail, after a notice of forfeiture is mailed by the court clerk. (§ 1305, subd. (c).) “If the forfeiture is not set aside by the end of the appearance period, the court is required to enter summary judgment against the surety. [Citation.]” (People v. American Contractors Indemnity Co., supra, at p. 657, citing Pen. Code, § 1306, subd. (a).)
A surety may file a motion for an order extending the 185-day appearance period. The court may extend the appearance period upon a showing of good cause. (Pen. Code, § 1305, subd. (i).) Good cause means an “ ‘explanation of what efforts [the surety] made to locate [the accused] during the initial 180 days, and why such efforts were unsuccessful.’ [Citation.] ‘[T]he surety [must] show its due diligence to locate a defendant and secure his or her presence in court.... [S]ection 1305.4 does not “giv[e] a surety carte blanche to sit on its hands for six months and then come running into court at the last minute with a bare-bones declaration that leaves huge gaps in the facts, and expect a trial court to simply roll over and give an extension.” [Citation.] In order to show good cause for its extension, the surety must demonstrate that it diligently attempted to locate and capture the defendant during the initial 180 days.’ [Citation.]” (People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644.)
The trial court must also consider whether there is a reasonable likelihood of securing the attendance of the accused. (People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1358 (Accredited).) “ ‘The inquiry must be prospective as well as retrospective; otherwise, an extension does not serve the statute’s policy of returning fleeing defendants to custody. That policy is best served by the surety showing that another 180 days might be productive.’ [Citation.]” (County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027.)
“ ‘The purpose of bail and forfeiture statutes is to insure the attendance of the accused and his obedience to court orders and judgments.’ [Citation.]” (People v. Ranger Ins. Co. (2006) 139 Cal.App.4th 1562, 1564.) “[T]o avoid the harsh penalty of forfeiture, we strictly construe the relevant statutory provisions in favor of the surety. [Citation.] [¶] The surety... bears the burden of establishing that its case for relief falls within the statutory requirements. [Citation.]” (Ibid.) “ ‘If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion.’ [Citation.]” (County of Los Angeles v. Fairmont Specialty Group, supra, 164 Cal.App.4th at p. 1028.)
We review a trial court’s determination of good cause under the abuse of discretion standard (People v. Ranger Ins. Co., supra, 150 Cal.App.4th at p. 644) and will not disturb to determination unless the record demonstrates “a clear abuse of that discretion.... [Citation.]” (People v. Ranger Ins. Co., supra, 139 Cal.App.4th at p. 1564.)
Lexington National contends that Pourat’s fraudulent physician’s note purposefully perpetrated a fraud on the court, the surety, and Pourat’s mother, causing the court to delay its forfeiture declaration for more than a month, during which time Pourat was able to abscond to France. Pourat’s conduct made it “virtually impossible” Lexington National argues, for it to locate and return Pourat to court. In support of its position, Lexington National cites People v. Malveaux (1996) 50 Cal.App.4th 1425, for the proposition that “courts have an inherent ability to correct judgments obtained through fraud or intentional misrepresentation. [Citation.]” (Id. at p. 1441, italics added.) We are unpersuaded for four reasons.
First, the forfeiture order, which was entered at the hearing after the doctor’s note was submitted, is not the judgment at issue here. The judgment at issue is the summary judgment entered in January 2009. Lexington National does not argue that that January 13, 2009 judgment was obtained by fraud.
Second, there is no showing, other than the surety’s speculation, that Pourat was faking an illness whereas there is evidence in the form of the doctor’s note to support the court’s implied conclusion that Pourat was indeed ill. Thus, the court had no basis for correcting its order under Malveaux.
Third, nonappearance is exactly the risk Lexington National insures against. “ ‘[T]he surety enters a contract with the bailee which encompasses the risk that the bailee will not appear and has charged a fee which presumably is sufficient to provide a profitable enterprise despite occasional forfeitures of bail....’ [Citation.]” (People v. Accredited Surety & Casualty Co., (2004) 132 Cal.App.4th 1134, 1138; see also People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22.)
Fourth, the court gave the surety more than “the full 180-day extension allowed by law” to locate Pourat, Lexington National’s suggestion to the contrary, notwithstanding. Bail was ordered forfeited on January 16, 2008. The appearance period would have ended 180 days plus five for mailing the notice, or July 21, 2008. Yet, the court granted an additional 90 days based on its order pursuant to section 1305.4 granting the surety’s agent’s first motion, and 90 days later, the court continued the case for an additional 90 days. Calculating the time, it shows that Lexington National had a year from the date forfeiture was declared to locate Pourat and to demonstrate good cause. During the year following the declaration of forfeiture, Lexington National brought two motions to vacate forfeiture and exonerate the bond. In each of those motions, Lexington National twice asserted that the court was intentionally misled about the fact that Pourat was ill. The trial court considered Lexington National’s argument that Pourat’s alleged fraud excused its bond agent’s delay in locating Pourat for 43 days because it extended the appearance period twice for a total of 180 additional days.
We conclude when that second 180-day appearance period had run, the trial court did not abuse its discretion in denying yet another extension. (People v. Ranger Ins. Co., supra, 150 Cal.App.4th at p. 644; People v. Ranger Ins. Co., supra, 139 Cal.App.4th at p. 1564.) Lexington National had made no showing of a reasonable likelihood of securing Pourat’s attendance in court in another 180 days. (Accredited, supra, 137 Cal.App.4th at p. 1358.) Once the trial court determined that Lexington National had not shown good cause for extending the appearance period into a second year, summary judgment was required. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657.)
DISPOSITION
The order is affirmed. Appellant to bear costs on appeal.
We concur: KLEIN, P. J., KITCHING, J.