Opinion
A155615
04-30-2020
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. AMERICAN SURETY COMPANY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Sup. Ct. No. 16CR011453)
American Surety Company (American Surety) appeals from the trial court's order denying its motion to set aside a summary judgment, vacate the forfeiture of a bail bond, and exonerate the bond on the basis that the court lacked jurisdiction to issue the order. We agree and reverse.
In light of this conclusion, we do not consider American Surety's alternative argument that the court set bail in violation of defendant's constitutional rights.
FACTUAL AND PROCEDURAL BACKGROUND
On October 21, 2016, defendant Christopher Ian Mathers (defendant) pleaded not guilty to multiple drug and firearm-related charges. The trial court denied defendant's motion to be released on his own recognizance and set bail at $67,500. On October 29, American Surety, through its agent, Bail Hotline Bail Bonds, posted bail for the release of defendant from custody.
On May 24, 2017, defendant failed to appear for a pretrial hearing. The hearing was not transcribed or recorded, and the minutes do not reflect any excuse for defendant's failure to appear. Nevertheless, the trial court did not declare the bond forfeited but instead issued a bench warrant and continued the hearing to June 28. When defendant did not appear on June 28, the court declared the bond forfeited, issued a $130,000 bench warrant, and continued the matter to December 26 for summary judgment proceedings.
American Surety requested transcripts of various hearings including the May 24 and June 28 hearings; the Alameda County Superior Court responded in relevant part, "5-24-17, nothing was reported; 6-28-17, was not reported. Minute order says bench warrant for $130,000 issued."
The clerk of the court mailed a notice of forfeiture to American Surety on July 6. By statute, American Surety had 185 days (180 days plus five days for mailing)—until January 8, 2018—"to move to have the forfeiture vacated and the bond exonerated on certain grounds." (Pen. Code, § 1305 (b) & (c).) The parties stipulated—and the court accepted the stipulation—to extend the exoneration period to April 30, 2018 to locate and produce defendant.
On May 30, 2018, the trial court entered summary judgment on the bond. On July 10, American Surety filed a motion to set aside the summary judgment, vacate the forfeiture, and exonerate the bond on the grounds that the court set bail in violation of defendant's constitutional rights and lacked jurisdiction to enter a summary judgment. American Surety filed a supplemental memorandum of points and authorities arguing the trial court lost jurisdiction over the bond when it failed to declare forfeiture upon defendant's first nonappearance on May 24, 2017. The county opposed both the motion and supplemental argument, and American Surety replied as to both. The court, having reviewed all the pleadings, denied American Surety's motion on October 2, 2018. A timely appeal ensued.
DISCUSSION
American Surety contends the trial court erred in denying its motion to set aside the summary judgment, vacate the forfeiture, and exonerate the bond because the court lost jurisdiction over the bond when it failed to declare forfeiture upon defendant's first nonappearance at his pretrial hearing on May 24, 2017. We agree.
The forfeiture of bail and related proceedings are a matter of statutory procedure governed by Penal Code sections 1305 through 1308. (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709.) " 'The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court.' [Citation.]" (Ibid.) To that end, section 1305 subdivision (a)(1) provides that when a defendant fails, without "sufficient excuse," to appear at a proceeding at which his presence is required—including a pretrial hearing—the trial court "shall" declare the bond forfeited. (§ 1305; People v. Safety National Casualty Corp., supra, 62 Cal.4th at p. 717.)
All other statutory references are to the Penal Code.
A trial court that "has reason to believe that sufficient excuse may exist for the [defendant's] failure to appear" is not required to declare the bond forfeited immediately; rather, it may continue the matter "for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail." (§ 1305.1.) A record that is silent as to the trial court's reasons for believing a justification exists for the defendant's nonappearance will not support a continuance. (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 718.) Where there is no record supporting a continuance, "a reviewing court must 'conclude that [the defendant's] nonappearance was without sufficient excuse.' " (People v. Safety National Casualty Corp., supra, 62 Cal.4th at p. 717.)
If the trial court "fails to declare a forfeiture at the time of the defendant's unexcused absence, it is without jurisdiction to do so later." (Id. at p. 710, citing People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907 ["the court's failure to declare a forfeiture upon a nonappearance without sufficient excuse . . . deprives the court of jurisdiction to later declare a forfeiture"].) Thus, in People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 550, the trial court's failure to forfeit bail upon the defendant's first nonappearance exonerated the bond by operation of law and the subsequently-entered judgment against the surety was void and subject to attack at any time. (See also People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 582, 588 [same]; People v. Surety Ins. Co. (1985) 165 Cal.App.3d 22, 30 [same].)
Here, the parties agree defendant was lawfully required to appear at his pretrial hearing on May 24, 2017. They also agree the record is silent as to the reasons for defendant's nonappearance on that date and the trial court's reasoning in continuing the matter. Because the record is silent, the bond was exonerated by operation of law on May 24 and the court lost jurisdiction to forfeit the bond at any later time. Accordingly, the summary judgment entered against American Surety was void and subject to attack at any time. (People v. Amwest Surety Ins. Co., supra, 125 Cal.App.4th at pp. 553-554.)
Respondent argues American Surety "should be [judicially] estopped from asserting a lack of jurisdiction now when it invoked the court's jurisdiction during the exoneration period." Specifically, it asserts American Surety essentially "consent[ed] to [the] court's jurisdiction where there [was] none" when it "moved for and received an extension of the exoneration period" and "knowingly sought and received additional time to locate and apprehend [d]efendant." We disagree.
It is well settled that parties cannot confer "fundamental jurisdiction" by waiver, estoppel, or consent because the act of a court that lacks fundamental jurisdiction is null and void. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339.) In contrast, where a court acts only in excess of jurisdiction, the court still has " 'jurisdiction over the subject matter and the parties in the fundamental sense.' " (Id. at p. 340.) Thus, a court's act that is merely in excess of jurisdiction is " 'valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time.' [Citation.]" (Ibid.) The failure to forfeit a bond under section 1305 has been stated to cause the court to lose fundamental jurisdiction over the bond, such that a later entry of judgment on the bond is void. (E.g., People v. Amwest Surety Ins. Co., supra, 125 Cal.App.4th at p. 550 [failure to forfeit bail pursuant to section 1305 was not merely an act in excess of jurisdiction but a loss of "fundamental jurisdiction" such that the later judgment was void].) Accordingly, we conclude the court in this case lost fundamental jurisdiction upon its failure to comply with section 1305, regardless of what American Surety did thereafter.
Even assuming principles of judicial estoppel were applicable, we would conclude the doctrine cannot be used to produce a different result. Judicial estoppel arises only where (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position; (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Courts "invoke judicial estoppel to prevent judicial fraud from a litigant's deceitful assertion of a position completely inconsistent with one previously asserted, thus compromising the integrity of the administration of justice by creating a risk of conflicting judicial determinations." (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) "[B]ecause judicial estoppel is an extraordinary and equitable remedy that can impinge on the truth-seeking function of the court and produce harsh consequences, it must be 'applied with caution and limited to egregious circumstances.' " (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 449.)
The elements of judicial estoppel have not been met in this case. As to the first and fourth elements, it cannot be said that American Surety took two "totally inconsistent" positions. In seeking an extension of the exoneration period, American Surety did not make any explicit argument regarding jurisdiction and did nothing to cause the court to make a finding that it had jurisdiction. Rather, the record only shows that American Surety sought additional time to find defendant—a position that is not entirely inconsistent with arguing that the court had lost jurisdiction over the bond. In fact, it appears the parties assumed the court had jurisdiction, as they stipulated to extending the exoneration period and did not raise any jurisdictional issues at that time.
Further, as to the fifth element required for judicial estoppel—i.e., that the first position was not taken as a result of ignorance, fraud, or mistake—there is no evidence suggesting that American Surety's first position—that it should be given more time to find defendant—was taken for any reason other than its ignorance or mistake. After all, if American Surety had realized the court had already lost jurisdiction by failing to declare the bond forfeited on May 24, it likely would have brought this to the attention of the court and sought a discharge of the forfeiture and exoneration of the bond at that time. It is unlikely American Surety would have spent the time and expense obtaining an extension of time to locate defendant when it could have obtained a favorable result immediately. In sum, we do not believe the record supports a finding of judicial estoppel.
The cases on which respondent relies are inapposite because the sureties in those cases sought or agreed to an extension of the exoneration period and later changed their position to claim the extension was invalid or the entry of summary judgment untimely. (E.g., People v. Accredited Surety & Casualty Company, Inc. (2013) 220 Cal.App.4th 1137, 1141, 1150-1151 [surety was estopped from seeking to set aside summary judgment on the ground that the court extended the exoneration period beyond what the statute allowed, when it had previously agreed to extend the exoneration period to a certain date], disapproved on other grounds by People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 46; People v. Bankers Insurance (2010) 182 Cal.App.4th 1377, 1381-1382, 1385, disapproved of on other grounds by People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 46.)
Respondent makes the policy argument that the "[f]ailure to apply the doctrine of judicial estoppel in instances such as these would allow sureties like American Surety to continue wasting judicial resources by requiring trial courts to review papers and hear argument on extension motions which should never have been filed in the first place. . . Sureties . . . should not be permitted to continue to strain already limited judicial resources with unnecessary extension requests when jurisdictional arguments could have been raised . . . ." It can be equally said, however, that if a surety proceeds as if a court has jurisdiction when it does not, respondent can and should come forward to advise the court that it lacks jurisdiction to extend the exoneration period, rather than waiting to see if the surety is able to return the defendant to court and, if not, requiring the surety to spend resources on a bond that has already been exonerated as a matter of law. Although the doctrine of judicial estoppel does not require a showing of prejudice to the other party, we conclude the lack of prejudice to respondent—which stipulated to the extension, was not entitled to any money under the bond as a matter of law, and stood to benefit from American Surety's additional efforts to locate defendant—negates its policy arguments.
We conclude the trial court erred in denying American Surety's motion to set aside the summary judgment, vacate the forfeiture, and exonerate the bond.
DISPOSITION
The order denying American Surety's motion to set aside the summary judgment, vacate the forfeiture, and exonerate the bond is reversed. The trial court is directed to enter an order vacating the forfeiture and exonerating the bond.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Fujisaki, Acting P.J. /s/_________
Jackson, J.