Opinion
C093106
12-21-2021
THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. CRF180002896
DUARTE, J.
Financial Casualty & Surety, Inc. (Surety) appeals from entry of summary judgment on a $50,000 bail bond. Surety contends: 1) the trial court erred in denying its request to toll the appearance period pursuant to emergency rule 9 (Cal. Rules of Court, appendix I, Emergency Rules Related to COVID-19) (Rule 9); 2) the entry of summary judgment was premature as it was entered during the portion of the appearance period that should have been tolled pursuant to Rule 9; and 3) bail was exonerated by operation of law when the criminal defendant returned during the tolled appearance period. Respondent disagrees, arguing these are not special proceedings such that Rule 9 applies and are not initiated by a motion (such that a tolling order would apply) in any event.
The actions taken for appellant in the trial court were by a bail agent, The Bail Hotline Bail Bonds. We will refer to the company and agent jointly as Surety.
As we next explain, because we disagree that Rule 9 applied to toll the particular time periods at issue in this case, we shall affirm the grant of summary judgment.
BACKGROUND
Posting of bond and subsequent extension of the appearance period
Surety posted a bail bond guaranteeing Suliman Mohammed Khaliqi's appearance at further proceedings in his criminal case. Khaliqi failed to appear as ordered at a June 29, 2019, hearing. The trial court ordered bail forfeited and mailed a notice of forfeiture the next day. The appearance period, which was calculated as 180 days from the date of the mailing of the notice of forfeiture plus five days (Pen. Code, § 1305, subds. (b)(1), (c)(1)) was set to expire on January 31, 2020.
Further undesignated statutory references are to the Penal Code.
On January 29, 2020, Surety timely filed a motion to extend the appearance period pursuant to section 1305.4. On February 21, 2020, the trial court granted the motion, and extended the appearance period to the maximum allowable period of an additional 180 days, to end on August 19, 2020.
COVID-19 and Emergency Rule 9
On March 4, 2020, after the appearance period for the defendant in Surety's case had begun and been extended by motion to the maximum available length, the Governor declared a state of emergency as a result of the threat of COVID-19, and on March 19, 2020, issued an executive order directing all Californians not providing essential services to stay home. The order did not close the courts, as they were deemed an essential service. (E.P. v. Superior Court of Yolo County (2020) 59 Cal.App.5th 52, 54-55.) On March 27, 2020, Governor Gavin Newsom issued an executive order (Governor's Exec. Ord. No. N-38-20 (Mar. 27, 2020)) suspending limitations on the "Judicial Council's ability to issue emergency orders or rules, and suspend[ing] statutes that may be inconsistent with rules the Judicial Council may adopt." (Stanley v. Superior Court of Contra Costa County (2020) 50 Cal.App.5th 164, 167-168). "Acting on that authority, on April 6, 2020, the Judicial Council adopted 11 emergency rules." (E.P. v. Superior Court of Yolo County, supra, 59 Cal.App.5th at p. 55.) These rules are listed in the California Rules of Court, Appendix I.
Rule 9 is one of those 11 emergency rules; it is entitled: "Tolling statutes of limitations for civil causes of action" and reads in relevant part (as amended May 29, 2020, in a manner not relevant to this appeal) as follows: "(a) Tolling statutes of limitations over 180 days [¶] Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020. [¶] . . . [¶] (b) Tolling statutes of limitations of 180 days or less [¶] 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." (Bold omitted.)
The Advisory Committee comment on Rule 9 provides that the rule "is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action" and that "the term 'civil causes of action' includes special proceedings." The Comment adds that Rule 9 "also applies to statutes of limitations on filing of causes of action in court found in codes other than the Code of Civil Procedure, including the limitations on causes of action found in, for example, the Family Code and Probate Code." (Advisory Com. Com., Cal. Rules of Court, appen. I, emergency rule 9.)
Subsequent actions by Surety and rulings by the trial court
On July 30, 2020, Surety filed a motion to extend or toll the appearance period pursuant to Rule 9. The motion also purported to seek to set aside summary judgment, but summary judgment had not yet been entered. Surety argued Rule 9 applied to extend the statutes of limitations that it equated with the appearance periods provided by sections 1305 and 1305.4 (which we detail post). As relevant to its claims on appeal, Surety also argued application of Rule 9 to bail proceedings was consistent with section 1305, subdivision (e), which provides for tolling the appearance period where the defendant is unable to appear in court during the remainder of the 180 day period, because "of illness, insanity, or detention by military or civil authorities."
Surety also sought an additional extension of time under section 1305.4, based on good cause rather than tolling. Because Surety does not challenge the trial court's ruling on this issue on appeal, we do not detail any good cause claim or ruling.
On August 28, 2020, the trial court denied the motion, finding as relevant here that there was no authority supporting the proposition that Rule 9 applied to bail bond forfeiture proceedings under section 1305, and Surety had already sought and obtained the maximum extension of the appearance period as provided by section 1305.4. No additional extensions of time were authorized by statute or case law, and Rule 9 did not apply. The court entered summary judgment on September 21, 2020. Khaliqi appeared in custody on October 22, 2020.
Surety purports to appeal from both the denial of its motion to extend or toll the appearance period as well as the entry of summary judgment against it, but the November 20, 2020 notice of appeal was not timely filed from the August 28, 2020 order denying the motion to extend or toll. Nonetheless, as an analysis of the propriety of the denial is encompassed by the necessary analysis of the propriety of entry of summary judgment, we discuss both below. This case was fully briefed in June 2021 and set for oral argument in October 2021; it was argued and submitted on December 14, 2021.
Surety claims on appeal as it did in the trial court that Rule 9 applied to toll the appearance period such that it was still ongoing when Khaliqi finally appeared, and thus summary judgment against it was improper. As we explain, we disagree.
DISCUSSION
I
Relevant Law and Standard of Review
Under section 1305, the trial court must declare the bail forfeited on the first date the defendant fails to appear as ordered, provided the defendant is charged in a filed criminal complaint. (§ 1305, subd. (a)(1)-(2); People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 (American Contractors).) Once forfeiture is declared, the surety posting the bond has a period of 185 days after the mailing of the notice of forfeiture by the clerk of the court to move to vacate forfeiture and exonerate the bond. (§ 1305, subd. (c)(1); American Contractors, at p. 657.)
Under section 1305.4, the surety may seek an extension of the appearance period, which the trial court may grant upon a showing of good cause, for no more than 180 days from the date the trial court orders the extension. (§ 1305.4.)" '[T]he total allowable extension is [ ] limited to 180 days from the date of the first extension order, regardless of how many individual extensions the court orders.'" (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 46, fn. 2.)
In addition to defining the circumstances under which the bond must be forfeited, section 1305 provides various grounds on which the forfeiture may be vacated and the bond exonerated. Section 1305, subdivisions (d), (f), and (g) each require a filing with a specified showing to the court that circumstances exist related to a defendant's inability to appear in court (e.g. death, outside jurisdiction and no extradition). Upon a showing of these circumstances, the court is required to vacate the forfeiture and exonerate the bond. Similarly, section 1305, subdivisions (e) and (h) each require a filing with a specified showing to the court that circumstances exist related to a temporary hindrance to defendant appearing (e.g. illness, extraditing from outside jurisdiction). Upon a showing of these circumstances, the court may toll the appearance period.
By contrast, section 1305, subdivisions (c)(1) and (c)(2) each provide specific circumstances related to the defendant being in custody during the appearance period under which the court must act on its own motion to vacate the forfeiture and exonerate the bond. If the court fails to act, the bond is exonerated by operation of law.
The appearance period also operates to define jurisdictional limitations on the trial court's ability to enter summary judgment. The court cannot enter summary judgment before the expiration of the appearance period and the court must enter summary judgment within 90 days of the expiration of that period. (§ 1306, subds. (a), (c).)
The parties agree, as do we, that the issue presented here, whether the tolling provisions of Rule 9 apply to bail forfeiture proceedings, is one of pure law and our review is therefore de novo. "When the facts are undisputed and only legal issues are involved, appellate courts conduct an independent review." (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.)
II
Claims and Analyses
A. Emergency Rule 9 and Tolling the Appearance Period
Surety's main argument on appeal is that Rule 9 applied to toll the appearance period--already extended to the maximum permitted by statute and with a new appearance deadline set in mid-August 2020 prior to the creation and theoretically possible application of Rule 9--such that the extended appearance period encompassed the late October date that Khaliqi returned to court. Surety argues at length that sections 1305 and 1305.4 are statutes of limitations and bail forfeiture proceedings are special proceedings "commenced" by a party filing a motion seeking relief from forfeiture pursuant to those sections.
We have discussed the relevant statutes and the circumstances surrounding the creation of Rule 9, ante. We add that the Judicial Council's circulating order memorandum on Rule 9 explains the rule's underlying policy: "Given the length of time that statewide and local shelter-in-place restrictions may be in place, attorneys and self-represented parties may have more difficulty timely filing initial pleadings in the trial court. For the same reasons, trial courts may have difficulty in processing all such pleadings and handling post-filing matters during this time. Tolling of the statutes of limitation and repose will protect the interests of litigants during the time the pandemic limits the ability of parties to exercise their rights in civil cases." (Circulating Order Memorandum to the Judicial Counsel, Circulating Order Number: CO-20-09, at p. 6, italics added.)
On our own motion we take judicial notice of the Circulating Order Memorandum to the Judicial Counsel, Circulating Order Number: CO-20-09 (see Evid. Code, §§ 452, subd. (c), 459).
Initially, we agree with Surety that bail bond proceedings are special proceedings. "A special proceeding is' "the type of case which was not, under the common law or equity practice, either an action at law or a suit in equity. [Citations.]" [Citation.] Special proceedings instead are established by statute. [Citations.] The term "special proceeding" applies only to a proceeding that is distinct from, and not a mere part of, any underlying litigation. [Citation.] The term "has reference only to such proceedings as may be commenced independently of a pending action by petition or motion upon notice in order to obtain special relief." '" (Property Reserve, Inc. v. Superior Court (2016) 6 Cal.App.5th 1007, 1019.) Bail proceedings are established strictly by statute and are independent from the underlying criminal proceedings. (American Contractors, supra, 33 Cal.4th at p. 657 ["Although bail proceedings occur in connection with criminal prosecutions, they are civil proceedings, independent from and collateral to the prosecutions and are civil in nature"].) The entirety of the bail proceedings, from undertaking to entry of judgment, is strictly a matter of statutory procedure. (§§ 1267-1320; See People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709.)
Surety asserts that bail proceedings are commenced by a party filing a motion under section 1305 or 1305.4, for special relief offered by those sections either preventing or delaying the entry of the consent summary judgment. Surety proposes that because the motion for relief commences the special proceeding, and section 1305 and 1305.4 are the operative statutes of limitations, Rule 9 applies to toll the running of section 1305 and 1305.4 appearance period, and extend it from the maximum of 185 days plus 180 days for good cause under section 1305.4.
We initially observe that the entirety of the bail proceedings--from the initial admission and undertaking, to the entry of judgment or exoneration of bond, to the enforcement of judgment--meets the definition of a special proceeding. The bail proceeding is commenced by the filing of the undertaking, requesting the special relief of the release of the defendant to the custody of the surety. (See People v. Lexington National Ins. Co. (2007) 147 Cal.App.4th 1192, 1198; People v. United Bonding Ins. Co. (1969) 274 Cal.App.2d 898, 904.) If, as it appears to us, the entire bail proceeding is in fact the relevant special proceeding before us in this case, then any motion made under section 1305 or 1305.4," 'is a mere subsequent step in an action or special proceeding already commenced.'" (Murphy v. Davids (1921) 55 Cal.App. 416, 420 [proceedings to offset a judgment].)
However, we need not resolve this issue. Even if we assume without deciding that Rule 9 applies to bail proceedings and that a motion for relief under section 1305 or 1305.4 can be construed as the filing that commences the portion of the bail forfeiture proceeding that is the relevant "special proceeding" under Rule 9, the rule would have applied only to toll the period in which the surety could file to commence the proceedings. Here, as this filing had already happened, there was nothing to toll. Surety's initial filing for relief, which we assume for argument's sake commenced the special proceeding, was made under section 1305.4 in January 2020 and granted in February 2020, prior to any possibility of tolling of the deadline for that special proceeding's commencement by application of Rule 9 (which, as we have explained, was adopted on April 6, 2020). Thus, even accepting Surety's argument as to all three points: the nature of the proceedings, the segment of the proceedings that may be artificially isolated and deemed a separate special proceeding, and the application of Rule 9 thereto, Rule 9 would have provided no relevant relief.
The day before oral argument, respondent requested that we take judicial notice of a published appellate division opinion; at oral argument, Surety expressed its non-opposition to the motion through counsel. We grant the unopposed motion, but do not rely on that court's conclusions in reaching ours.
Further, once a proceeding has been initiated, even assuming here that this occurred only with Surety's filing of its section 1305.4 motion for maximum extension of the appearance period, additional motions under section 1305 do not "commence" the proceeding; they are merely subsequent steps in the special proceeding already commenced, not separate special proceedings themselves. (See National Financial Lending, LLC v. Superior Court (2013) 222 Cal.App.4th 262, 275-276; Murphy v. Davids, supra, 55 Cal.App. at p. 420.) Nothing in Rule 9, the advisory comments, or the circulating order suggests Rule 9 applies to toll the time for subsequent filings in a special proceeding. To the contrary, the advisory comments state the rule is to apply to pleadings asserting a cause of action or to motions initiating a request for relief. As we have described ante, the circulating order also explicitly states the underlying policy is to address potential challenges to "attorneys and self-represented parties [who] may have more difficulty timely filing initial pleadings in the trial court." (Circulating Order Memorandum to the Judicial Counsel, Circulating Order Number: CO-20-09, at p. 6, italics added.). Because Rule 9 applies only to initial filings that commence a proceeding, even assuming this forfeiture proceeding was commenced in January 2020, with the filing of the initial (and successful) section 1305.4 motion to extend the appearance period, Rule 9 did not apply to toll the already-extended appearance period.
Moreover, nothing in the record indicates Surety was entitled to file for any additional relief under section 1305 such that Rule 9 could have even arguably applied to toll that filing deadline (by tolling the entire appearance period as Surety argues). There is no indication that Surety could make the statutorily required showings under section 1305, subdivisions (d), (f), or (g) that defendant was permanently unable to return to court, so as to justify vacating the forfeiture and exonerating the bond. Nor is there any indication that Surety could make the statutorily required showing under section 1305, subdivisions (e) or (h) that there was a temporary hindrance to defendant appearing in court, so as to justify a tolling of the appearance period. Surety does not claim on appeal that there was any relief for which it was entitled to move, but was prevented from doing so based on the running of the appearance period.
Nor was Surety entitled to further relief under section 1305.4. Relief under section 1305.4 is limited to an extension of 180 days, granted either all at once or piecemeal, in increments totaling 180 days, but in no event more than 180 days. (People v. Financial Casualty & Surety, Inc, supra, 2 Cal.5th at p. 46, fn. 2.) In response to the initial section 1305.4 filing, on February 21, 2020, the trial court granted a 180-day extension, the full measure of relief available under section 1305.4. Irrespective of the statute of limitations on the filing of any subsequent section 1305.4 motion, the court did not have jurisdiction to grant more time under section 1305.4. Rule 9 applies only to extend the time for seeking action or relief; it does not extend the relief already obtained.
B. Propriety of the Entry of Summary Judgment
Surety also argues the trial court was not authorized to enter summary judgment until the appearance period, extended by Rule 9, had expired. Surety posits that the appearance period "provided by sections 1305 and 1305.4 was tolled from April 1, 2020 through October 1, 2020" and therefore "the last day of the appearance period was February 13, 2021." Thus, Surety contends the summary judgment entered on September 21, 2020, entered during the tolling period provided by Emergency Rule 9, was prematurely entered and voidable.
For the reasons we have already discussed, this contention fails, as does Surety's remaining contention that because the appearance period was tolled, Khaliqi's October 2020 appearance was within the appearance period and bail was exonerated by operation of law. Khaliqi's appearance was not within the appearance period, because Rule 9 did not operate to toll the appearance period. Surety had already sought the maximum relief under section 1305.4 and thus commenced any special proceeding that even arguably could have resulted anew from that filing. Rule 9 did not apply to allow Surety more time to commence a proceeding it had already commenced or to seek some hypothetical but unavailable relief from forfeiture that would have merely continued a series of proceedings that had already commenced.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent. (Cal. Rules of Court, rule 8.278(a)(1); American Contractors, supra, 33 Cal.4th at p. 657 [bail forfeiture proceedings are civil in nature].)
We concur: Robie, Acting P.J., Mauro, J.