Opinion
E050580 Super.Ct.No. TEC099930
08-15-2011
THE PEOPLE, Plaintiff and Respondent, v. INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Defendant and Appellant.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant. Pamela J. Walls, County Counsel, and Patricia Munroe, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Michael S. Hider, Judge. (Retired judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Patricia Munroe, Deputy County Counsel, for Plaintiff and Respondent.
Indiana Lumbermens Mutual Insurance Company (hereafter "the surety") appeals an order denying its motion to set aside a summary judgment entered after entry of an order forfeiting a bail bond. It contends that actions of the federal government rendered the surety's performance of its obligations under the bond impossible and that the bond was therefore exonerated by operation of law. Riverside County Counsel, representing the People (hereafter "the county"), contends that the motion was not timely filed and was therefore properly denied.
We conclude that the motion and the appeal were timely filed, but we reject the surety's argument on its merits. We will therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On August 15, 2008, the surety posted bail for the release of Darren Elarmo, who was charged with multiple counts of child sexual abuse and kidnapping. Elarmo failed to appear on September 17, 2008, as ordered at the time of his release. Bail was ordered forfeited, and notice of the forfeiture was mailed to the surety and its agent on that date. Within the time permitted by Penal Code sections 1305 and 1305.4, the surety obtained an order extending the period for exoneration of the bond until October 5, 2009.
All statutory citations refer to the Penal Code unless another code is specified.
Section 1305 provides that a surety may seek to set aside an order of forfeiture within 185 days of the date the notice of forfeiture was mailed by the court clerk. (§ 1305, subd. (b).) Section 1305.4 provides that the surety may file a motion for an order extending the 180-day period provided for in section 1305. If the court finds good cause for the extension, it may extend the period to a time not exceeding 180 days from the date of its order. Upon the expiration of the periods set forth in section 1305, subdivision (b) and section 1305.4 without exoneration of the bond, the trial court must enter summary judgment against the surety within 90 days after the date upon which summary judgment may first be entered. (§ 1306, subds. (a) & (c).)
By April 2009, the surety's investigators had apparently run out of leads as to Elarmo's location. In June, the investigators were notified by the United States Marshals Service that it had adopted the case and was now "the primary agency responsible for" Elarmo's apprehension. It requested that the surety's investigators cease any "overt attempts" to locate Elarmo, to avoid jeopardizing its investigation. The United States Marshals Service asked that the investigator's surety share with it any information it had or which it later obtained which might be of assistance in locating Elarmo.
The surety did not seek relief from the forfeiture order before the exoneration period elapsed on October 5, 2009. Summary judgment was entered on October 14, 2009. On January 15, 2010, the surety filed a motion to vacate the judgment and exonerate the bond. The motion was denied on March 12, 2010.
The surety filed a notice of appeal on April 6, 2010.
LEGAL ANALYSIS
1.
TIMELINESS AND APPEALABILITY
The surety states in its opening brief that the appeal is from an order "refusing to vacate an order of forfeiture and to exonerate bail." It cites authorities which state that such an order is appealable. Its appeal, however, is from an order denying the surety's motion to set aside the judgment. Its contention is that the court lacked jurisdiction to enter judgment on the forfeiture because the bond was exonerated by operation of law before the end of the period during which the forfeiture could have been set aside. It contends that the judgment is void for lack of jurisdiction.
A void judgment is subject to direct or collateral attack at any time.(People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661.) A motion to vacate the judgment is an appropriate means of attacking a void judgment. (Id. at p. 661.) Because Code of Civil Procedure section 473, subdivision (d) expressly authorizes a motion to vacate a void judgment, an order denying a motion to vacate a void judgment is appealable as a special order made after final judgment, pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1265-1266.)
The county contends, however, that the motion to vacate the judgment was itself not timely because a trial court has no jurisdiction to grant relief from forfeiture after the exoneration period expires. That is correct, as a general rule. (See, e.g., People v. Indiana Lumbermens Mutual Insurance Co. (2010) 49 Cal.4th 301, 308.) Nevertheless, if the bond is exonerated by operation of law during the exoneration period, as the surety contends in this case, any forfeiture or judgment entered thereafter is void because the court lost jurisdiction over the bond upon its exoneration. (See, e.g., People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 550-554; see also People v. American Contractors Indemnity Co., supra, 33 Cal.4th at pp. 660-663.) There is no time limit on a motion to set aside a void judgment. (People v. American Contractors Indemnity Co., supra, at pp. 660-661.) Thus, the timeliness of the motion depends upon the answer to the ultimate question raised in this appeal: Was the bond exonerated by operation of law during the exoneration period because of the actions of the federal authorities?
The surety could have raised the same issue in a direct appeal from the summary judgment. However, the time for filing a notice of appeal from the judgment itself elapsed before the motion to vacate was filed. (Summary judgment was entered on October 14, 2009, and notice of entry of judgment was mailed by the clerk on October 16, 2009. The 60-day deadline for filing the notice of appeal expired on December 15, 2009. (Cal. Rules of Court, rule 8.104(a)(1).) The motion was filed on January 15, 2010. )
2.
THE BOND WAS NOT EXONERATED
The surety contends that the bond was exonerated by operation of law because the actions of "the government" prevented it from performing its obligations under the bond. It contends that it ceased its efforts to locate Elarmo because the United States Marshals Service threatened it with criminal prosecution if it continued the investigation.
The surety relies initially on Reese v. United States (1869) 76 U.S. 13 and People v. Meyers (1932) 215 Cal. 115 (Meyers). In those cases, the Supreme Courts of the United States and of California, respectively, held that where "the government" interferes with or prevents the surety's performance of its obligation to secure the defendant's appearance in court, the surety is relieved of its obligations. However, in both cases the courts relied upon contract principles, i.e., that neither party to a contract may interfere with performance by the other. (Reese v. United States, at pp. 21-22; Meyers, at pp. 117, 119.) Here, the surety contends that actions by the federal government rendered its performance impossible. But the federal government is not a party to the bond. Consequently, this argument is unavailing.
The surety also relies on People v. American Surety Ins. Co. (2000) 77 Cal.App.4th 1063 (American Surety)to contend that "action by the federal government can make performance by the surety impossible." In that case, the court held that the federal government's act of deporting the defendant to Mexico after he was freed on bail amounted to a detention "by operation of law," within the meaning of section 1305, subdivision (d). The defendant had previously been convicted of a felony relating to the sale of cocaine. Immigration law posed a "nearly, if not flatly, impregnable" bar to the defendant's reentry into the United States: "'Any alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance . . . is inadmissible.'" (American Surety, at p. 1067, citing 8 U.S.C.A. § 1182(a)(2)(A)(ii).) The court noted that under section 1305, subdivision (d), the defendant need not be in the physical custody of civil authorities. Rather, it suffices that the defendant was "'restrained by civil authorities and . . . the restraint prevents his appearance on the date set for that appearance. [Citation.]' [Citation.]" (American Surety, at p. 1065.)
Section 1305, subdivision (d) provides, "In the case of a permanent disability, the court shall direct the order of forfeiture to be vacated and the bail or money or property deposited as bail exonerated if, within 180 days of the date of forfeiture or within 180 days of the date of mailing of the notice if notice is required under subdivision (b), it is made apparent to the satisfaction of the court that both of the following conditions are met: [¶] (1) The defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities. [¶] (2) The absence of the defendant is without the connivance of the bail."
There was no analogous restraint imposed on the defendant in this case. Elarmo had fled, apparently to Europe, and federal authorities were also seeking him. But he was not restrained by any civil or military authority from reentering the United States.
We disagree with the surety's argument that "the essential holding" of Meyers, supra, 215 Cal. 115, and American Surety, supra, 77 Cal.App.4th 1063 is that "an act of the government can render performance impossible." As we have discussed, Meyers holds that an act by the state as a party to the bond contract can render performance impossible. (Meyers, at pp. 117, 119.) And, while American Surety holds that a bond may be exonerated if a restraint imposed on the defendant by the federal government amounts to a detention by civil authorities, its holding is not as broad as stated by the surety. To be sure, the restraint rendered the surety's performance impossible in that case, but the bond was exonerated only because the restraint amounted to a detention by civil authorities within the meaning of section 1305, subdivision (d). (American Surety, at pp. 1065, 1067.) Thus, American Surety does not stand for the broad proposition that a bond is exonerated by operation of law if acts of the federal government render performance impossible, if the federal government is not a party to the bond.
Thus, the cases the surety cites do not support its contention that interference by the federal authorities, which it contends prevented it from performing its obligations under the bond contract, operated to exonerate the bond. Even if we were to assume that a bond can be exonerated as a result of actions of the federal government which do not result in any form of restraint which prevents the defendant from returning to the jurisdiction, however, we would conclude that the evidence the surety provided does not compel the conclusion that the government's actions rendered the surety's performance impossible in this case.
The surety contends that it was unable to perform because an unidentified representative of the United States Marshals Service threatened it with criminal prosecution unless it ceased its investigation into Elarmo's whereabouts. In contrast to the declaration of the surety's investigator, however, the letter from the marshals service to the surety, which the surety offered in support of the investigator's declaration, does not contain any overt or implied threat of prosecution. On the contrary, the letter merely requests that the surety "refrain from any overt attempts to locate" Elarmo "to avoid jeopardizing our investigation." Under the surety's theory of impossibility of performance, the surety had the burden of proving that the federal authorities actually prevented it from performing. The record does not contain any factual finding by the trial court. On a silent record, we presume that the trial court made any factual findings necessary to support the judgment. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) Consequently, we presume that the court found that the surety did not meet its burden of proving impossibility. Where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) Given the conflict between the declaration and the letter from the marshals service, we conclude that the evidence does not compel a finding in favor of the surety.
Moreover, even under the surety's theory, in order to bring about an exoneration of the bond, the government's interference must make the surety's performance impossible. The investigator's declaration makes it clear that when the United States Marshals Service asked that the surety's investigators refrain from any overt attempts to locate Elarmo, the surety's investigator did not know that Elarmo was in France and was expected to move on to Spain. On the contrary, the investigator's trail of Elarmo ended at a flight school in Corona. Consequently, there is no basis for believing that the surety's investigator could have located and apprehended Elarmo but for the interference of the United States Marshal.
Finally, as the county points out, if the federal authorities had obtained custody of Elarmo before the expiration of the exoneration period, the surety could have moved for relief pursuant to either subdivision (d) or subdivision (e) of section 1305. Section 1305, subdivision (d) provides, in pertinent part, that in the case of a defendant's failure to appear because of a "permanent disability" due to "detention" by "civil authorities," the court "shall direct the order of forfeiture to be vacated and the bail . . . exonerated." (§ 1305, subd. (d).) Subdivision (e) of that statute provides, in pertinent part, that in the case of a defendant's failure to appear because of a "temporary disability" due to "detention" by "civil authorities," the court "shall order the tolling of the 180-day period provided in this section during the period of temporary disability" and thereafter tolling for a "reasonable period of time" to "allow for the return of the defendant to the jurisdiction of the court." (§ 1305, subd. (e).) In either situation, whether the defendant's disability is permanent or temporary, there is a low threshold of proof. The disability need only be made apparent "to the satisfaction of the court." (§ 1305, subds. (d) & (e).) And, the directives of subdivisions (d) and (e) are jurisdictional. Upon an adequate showing, relief from forfeiture is mandatory. (People v. Lexington National Ins. Corp. (2010) 181 Cal.App.4th 1485, 1490.)
In the absence of any evidence that the federal authorities prevented the surety from apprehending Elarmo and returning him to the jurisdiction of Riverside County, the surety's contention fails.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to the Office of County Counsel, County of Riverside. (§ 1305.3.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur: King
J.
Codrington
J.