Opinion
C097754
03-04-2024
THE PEOPLE, Plaintiff and Respondent, v. ABBA BAIL BONDS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 16CF06114)
Wiseman, J. [*]
Appellant Abba Bail Bonds appeals the trial court's denial of its motion to vacate forfeiture and exonerate bond because appellant failed to serve the Butte County Counsel (county counsel) with three prior motions seeking to extend the time for the criminal defendant to appear. Appellant argues the trial court erred because 1) it did not apply the doctrine of extrinsic mistake, and 2) its bond should not have been forfeited because the underlying criminal defendant was in custody in Butte County while the time for him to appear had been tolled. Even though we conclude appellant's arguments lack merit, we nevertheless reverse the summary judgment declaring the bond forfeited. The trial court is ordered to exonerate the bond because, as we will explain, summary judgment was not entered within 90 days after the expiration of the appearance period.
I. INADEQUACY OF THE RECORD
We begin by observing that appellant has made review of this case difficult by failing to provide an adequate record. "A fundamental principle of appellate law is the judgment or order of the lower court is presumed correct and the appellant must affirmatively show error by an adequate record." (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) "It is the burden of appellant to provide an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate review and results in affirmance of the trial court's determination." (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448 ["The absence of a record concerning what actually occurred [in the lower court] precludes a determination [of error]"].)
It appears appellant has chosen to provide us with only selectively culled documents from the record. For example, it has omitted 1) moving papers and minute orders for the first two motions, 2) the minute order on the third motion, 3) any record that those motions were timely heard, 4) any opposition briefing filed by county counsel on the motion challenged in this appeal, and 5) any moving or opposing papers for the motion for summary judgment where the court declared the bond forfeited. Based on these record omissions, we would act well within our discretion to reject this appeal on this basis alone. However, 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.' [Citations.] 'In matters of this kind there should be no element of revenue to the state nor punishment of the surety.'" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 (American Contractors).) Consequently, we elect to piece together the facts of this case from the record as it exists.
II. BACKGROUND
In December 2019, appellant filed a $50,000 bond ensuring the appearance of the defendant in the underlying criminal case. On October 29, 2020, the defendant failed to appear at a sentencing hearing and the trial court ordered the bond forfeited and issued a warrant for the defendant's arrest. On October 30, 2020, the clerk mailed a notice of the forfeiture to county counsel, the district attorney, and appellant.
Under Penal Code section 1305, subdivision (c), if a defendant appears or is in custody within 180 days after the bond is forfeited, the trial court must vacate the order of forfeiture and exonerate the bond. We will refer to this as the "original appearance period."
Undesignated statutory references are to the Penal Code.
On April 29, 2021, appellant filed a motion to extend the original appearance period for 180 days pursuant to section 1305.4 (Motion No. 1). A copy of this motion, the responding papers, the reporter's transcript, and the trial court's minute order are not included in the record. But county counsel concedes the motion was timely filed and appellant admits it did not serve that motion on county counsel.
The trial court heard Motion No. 1 on June 3, 2021. Appellant alleges the district attorney appeared at this hearing, but nothing in the record substantiates this occurred. Appellant also asserts the trial court's order extended the appearance period to November 23, 2021 (the extended appearance period). No document in the record substantiates this fact, however, county counsel does not object.
On November 23, 2021, appellant filed a motion to extend or toll the bond pursuant to the Supreme Court's Emergency rule 9 (Cal. Rules of Court, appen. I, Emergency Rules Related to COVID-19, rule 9, amended eff. May 29, 2020 (Emergency rule 9)) due to the impact of COVID-19 (Motion No. 2). While the notice of Motion No. 2 is addressed to the "Office of the Butte County District Attorney and County Counsel," (bolding and capitalization omitted) appellant served that motion only on the district attorney. In the motion, appellant argued it could not submit a new motion to extend and/or toll the bond because the courts were closed due to the COVID-19 pandemic.
Appellant also argued emergency rules enacted by the Supreme Court extended or tolled the period during which the defendant could appear in court and the bond could be exonerated.
On January 13, 2022, the trial court heard Motion No. 2 and denied it. The record contains no opposition papers, no reporter's transcript of the hearing, and no copy of the minute order. It contains no evidence supporting the conclusion the trial court found good cause to delay the hearing on Motion No. 2 past the 30 days allowed in section 1305, subdivision (j).
On January 26, 2022, appellant filed a motion for the trial court to reconsider its tolling motion pursuant to Emergency rule 9 (Motion No. 3). Once again, appellant served Motion No. 3 only on the district attorney. In this motion, appellant asserted the trial court should reconsider Motion No. 2 due to appellant's failure to include "new and pertinent information" in his declaration. (Bolding and capitalization omitted.) The appellant sought relief under California Code of Civil Procedure section 473 arguing the denial of the prior order was the result of mistake, inadvertence, surprise, or excusable neglect in filing the appropriate proof supporting the motion. In addition and relying upon Emergency rule 9, appellant sought to toll the extended appearance period.
Meanwhile, in February 2022, the Butte County Jail had defendant in custody. He was released on February 16, 2022, despite the warrant issued in this case.
The trial court heard Motion No. 3 on April 28, 2022. The district attorney appeared, but county counsel did not. The trial court stated it was inclined to grant the motion for reconsideration because the defendant was booked in the jail in February 2022. When asked if the trial court was willing to exonerate the bond, the trial court said it was not inclined to do so. After seeking input from counsel as to when the 180-day tolling period would begin to run, the deputy district attorney submitted on the papers stating he "just did not know." The trial court tolled the extended appearance period from the date it expired for 180 days (tolled extended appearance period).
On July 14, 2022, appellant filed its fourth motion (Motion No. 4) seeking to vacate the forfeiture of its bond and to have it exonerated. This time, appellant served both county counsel and the district attorney. Appellant argued the defendant was in custody during the tolled extended appearance period and thus the trial court should vacate the forfeiture of the bond and exonerate it. Appellant claimed, "On November 23, 2021, [appellant's] motion to suspend [appellant's] obligation due to emergency relief was granted until and including July 13, 2022." This assertion contradicts statements appellant made in Motion No. 3 that Motion No. 2 was denied. There is nothing in the record revealing how long the court granted the tolling in Motion No. 3.
County counsel filed an opposition to Motion No. 4. This opposition and any reply brief are not part of the record.
At the November 22, 2022, hearing, appellant's counsel acknowledged appellant did not serve county counsel with Motions Nos. 1, 2, or 3, and counsel now knew he was "required" to do so. Appellant's counsel argued he served the district attorney and that their office appeared at the hearing; however, he did not argue appellant should have provided notice to county counsel. Appellant did not raise the issue of extrinsic mistake at that hearing. Instead, appellant argued that because the defendant was in custody during the tolled extended appearance period, the trial court should vacate the bond forfeiture and exonerate the bond.
In response, county counsel argued the tolling order of Motion No. 3 was not entered before the extended appearance period had expired on November 23, 2021.
The trial court denied the motion, concluding appellant failed to properly serve county counsel with its motion to extend the extended appearance period. Thereafter, the bond was improperly tolled without county counsel having had an opportunity to object to the motion.
On December 19, 2022, the trial court entered summary judgment on the bond. Once again, the record contains no record of any motion for summary judgment, any opposition, or reply, and any hearing.
Appellant timely appealed the judgment.
III. DISCUSSION
A. Doctrine of Extrinsic Mistake
Appellant first argues the trial court should have relieved it from its failure to serve the motion on county counsel based on the doctrine of extrinsic mistake. Appellant forfeited that argument by failing to raise it below. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [failure to raise issue in trial court forfeits issue on appeal].)
Despite appellant's concession that he should have served county counsel, we are not certain appellant was required to serve county counsel, as opposed to the district attorney, with Motions Nos. 1, 2, and 3. On this point, county counsel refers to Government Code section 27642 which provides, the county counsel "shall discharge all the duties vested by law in the district attorney other than those of a public prosecutor." County counsel also cites Government Code section 26521 which provides the district attorney shall "except as provided in Sections 1305 and 1306 of the Penal Code, prosecute all actions for the recovery of debts, fines, penalties, and forfeitures accruing to the state or his or her county."
Nothing in the text of sections 1305 or 1306, however, states the county counsel, as opposed to the district attorney, is the proper office for service of this motion while a criminal case is ongoing. The only direction in both sections 1305 and 1305.4 is that "[i]n addition to any other notice required by law, the moving party shall give the prosecuting agency a written notice." Neither party has provided us with citation to other authority that requires service on county counsel in these circumstances. In the case cited by county counsel, County of San Bernardino v. Ranger Ins. Co. (1995) 34 Cal.App.4th 1140, the appellate court held the county counsel was the proper entity for service after the criminal case had concluded. As the criminal proceedings here were ongoing, that case does not assist us. For purposes of this opinion, we assume, but do not decide, that the motions were properly served. (Id., at pp. 1144-1145.)
B. Motion No. 4
This brings us to appellant's argument the trial court erred by denying Motion No. 4 to vacate the forfeiture and exonerate the bond. We conclude the trial court correctly denied the motion because the prior motion (Motion No. 3) was improperly granted, albeit for a different reason than proffered by the trial court.
1. The Bail Law
Under section 1305, the trial court must declare the bail forfeited on the first date defendant fails to appear as ordered, provided a criminal complaint has been filed charging defendant. (§ 1305, subd. (a); American Contractors, supra, 33 Cal.4th at pp. 657-658.) Once forfeiture is declared, the surety that posted the bond has a period of 185 days (180 days plus 5 days for mailing) after the clerk of the court mails a notice of forfeiture to move to vacate forfeiture and exonerate the bond. (§ 1305, subd. (c)(1); American Contractors, at p. 658.) The surety may seek an extension of the original appearance period for no more than 180 days. (§ 1305.4.) The maximum extension is calculated "from the date of the trial court's extension order, not from the end date of the initial appearance period." (People v. Financial Casualty &Surety, Inc. (2016) 2 Cal.5th 35, 43; § 1305.4.)
A motion to extend an appearance period must be brought before the expiration of the 180-day period and must be heard within 30 days of the expiration of that period unless there is good cause to extend the hearing beyond 30 days. (§§ 1305, subd. (j), 1305.4; People v. Accredited Surety &Casualty Co. Inc. (2012) 203 Cal.App.4th 1490, 1501-1502; People v. National Automobile &Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 124-125.)
If the bond has been forfeited and the appearance time has elapsed without the forfeiture having been set aside, the first day the trial court can enter summary judgment in the amount of the bond against the bondsman is the day after the appearance period has elapsed. (§ 1306, subd. (c); American Contractors, supra, 33 Cal.4th at pp. 659-660.) From that date, the trial court has 90 days to enter summary judgment against the surety for the amount stated in the bond. (§ 1306, subds. (a) &(c).) "[I]f summary judgment is entered after expiration of the 90-day period, section 1306 expressly provides that the bond is exonerated. (§ 1306, subd. (c) ['If, because of the failure of any court to promptly perform the duties enjoined upon it pursuant to this section, summary judgment is not entered within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated'] ....)" (American Contractors, at p. 661, italics omitted.)
2. Application
In filing Motion No. 1, appellant may or may not have validly extended the original appearance time given that the trial court heard the motion and entered its order 31 days after the expiration of the original appearance period. Because neither party takes issue with this potential problem, however, we will assume, without deciding, that the extension of the original appearance period to November 23, 2021, was valid and appellant made a timely motion (Motion No. 2) for an additional extension.
Motion No. 2 was denied at a hearing held on January 13, 2022. Once again, this motion was heard more than 30 days after it was filed. There is no evidence in the record suggesting that hearing was extended past the 30-day grace period based on good cause, but for purposes of this decision, we shall again assume, without deciding, it was properly heard and decided.
That brings us to Motion No. 3. It was appellant's burden to demonstrate that Motion No. 3 was both timely and meritorious. Appellant has not and cannot. Appellant filed its January 26, 2022, Motion No. 3 to reconsider Motion No. 2 and to toll or extend the extended appearance period more than two months after the extended appearance period expired on November 23, 2021. As a result, it was untimely. (§§ 1305, subd. (j), 1305.4; People v. Accredited Surety &Casualty Co. Inc, supra, 203 Cal.App.4th at pp. 1501-1502; People v. National Automobile &Casualty Ins. Co., supra, 82 Cal.App.4th at pp. 124-125.) Because this motion was not filed within the extended appearance period, the trial court had no jurisdiction to entertain or enter an order granting Motion No. 3. (National Automobile & Casualty Ins. Co., at p. 125.) On this basis, the trial court's November 22, 2022, order denying Motion No. 4 was proper. We therefore affirm that order but for a reason other than stated by the trial court. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1494 ["we review the trial court's result, not its rationale"].)
"Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020." (Emergency rule 9(b).) On the merits, appellant's motion to extend that time period based on Emergency rule 9 fails because it has no application to the appearance period time limits and did not provide the trial court with a viable basis to extend them. (People v. Financial Casualty & Surety, Inc. (2021) 73 Cal.App.5th 33, 41.)
This conclusion, however, does not end our inquiry. Once the appearance period expired on November 23, 2021, under the express terms of the statute, the trial court had 90 days to enter summary judgment against the surety. (§ 1306, subds. (a) &(c).) When the trial court failed to enter that judgment within the 90-day statutory period, the court's power to enter summary judgment expired and the bond was exonerated as a matter of law. (§ 1306, subd. (c); American Contractors, supra, 33 Cal.4th at p. 658.) The summary judgment the trial court entered on December 19, 2022 (over a year after the extended appearance period expired) is therefore void as entered without jurisdiction, and appellant's bail bond is exonerated as a matter of law. (People v. Topa Ins. Co. (1995) 32 Cal.App.4th 296, 303.)
Appellant raised the propriety of the summary judgment in its reply brief in response to county counsel's argument the trial court was without jurisdiction to act after the appearance period expired. We exercised our discretion to consider this argument despite appellant's failure to include it in its opening brief and sought supplemental briefing from county counsel. (Lopez v. Nissan North America, Inc. (2011) 201 Cal.App.4th 572, 592, fn. 10 [court has discretion to decline to find an issue forfeited where the parties have had an opportunity to address the issue].)
In supplemental briefing, county counsel first argues the trial court's November 23, 2022, order started the 90-day clock for forfeiture under section 1306, subdivision (c). County counsel relies principally on People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 764, contending the untimely motion to set aside the forfeiture delayed the start of the 90-day clock until that motion was decided. This argument might have merit if appellant's motion to set aside the forfeiture had been timely made, however, it was not. (Ibid.) An untimely motion, like in this case, is invalid as is any order issued in response to that untimely motion. Thus, under these circumstances, such a ruling cannot extend this period. As noted ante, respondent argued and we agreed that Motion No. 3 was not timely and consequently could not extend the start of the 90-day time frame.
County counsel alternatively argues the trial court's granting of summary judgment is voidable and appellant should be precluded from arguing the forfeiture should be vacated due to principles of estoppel. Again, we disagree.
If this were a case where the judgment was entered prematurely, as was the case in American Contractors, supra, 33 Cal.4th at page 661, county counsel's argument might hold water. In the case of a premature forfeiture, the statute contains no explicit direction about what the trial court should do. The same cannot be said where the forfeiture is untimely. "[I]f summary judgment is entered after expiration of the 90-day period, section 1306 expressly provides that the bond is exonerated. (§ 1306, subd. (c).) ['If, because of the failure of any court to promptly perform the duties enjoined upon it pursuant to this section, summary judgment is not entered within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated']; People v. Topa Ins. Co. [supra,] 32 Cal.App.4th [at p.] 303 . . ., [summary judgment void and bail exonerated as a matter of law since judgment entered several months after expiration of 90-day period].)" (American Contractors, at p. 661.)
As county counsel concedes, appellant did not file Motion No. 3 in a timely fashion. Due to its untimeliness, this motion was a nullity and the trial court's untimely ruling on that motion was void, not voidable, and the 90-day period to enter summary judgment commenced on November 23, 2021. The actual order granting summary judgment in December of 2022 was void as outside of the 90-day window. Given this conclusion, we need not discuss the principles of estoppel raised in the supplemental briefing.
IV. DISPOSITION
The summary judgment is reversed. The trial court is ordered to exonerate the bond. In the interest of justice, each side shall bear its own costs. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: Robie, Acting P. J., Krause, J.
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.