Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SJ0213, Larry Fidler, Judge.
Law Offices of Brendan Pegg and Brendan Pegg, for Defendant and Appellant Aegis Security Insurance Company.
Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel and H. Anthony Nicklin, Principal Deputy County Counsel, for Plaintiff and Respondent County of Los Angeles.
ZELON, J.
Aegis Security Insurance Company (Aegis) appeals the denial of its motion to exonerate two bail bonds it contends were issued in violation of Penal Code section 1166. Aegis contends that even though in a prior proceeding it had previously, but unsuccessfully, sought exoneration of the same bonds on different grounds, res judicata does not bar its assertion of section 1166 in this proceeding. We affirm.
All statutory references herein, unless otherwise noted, are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By information filed July 3, 2002, defendant Carlos Albert Hernandez was charged with attempted murder and assault with a firearm. (§§ 187, subd. (a), 664, 245, subd. (a)(2).) Bail was set at $1,560,000; it was not posted and defendant remained in custody. On November 7, 2002, a jury found defendant guilty of attempted premeditated murder and found true the allegation he personally used a firearm. Sentencing was set for December 11, 2002, and bail remained set at the same amount.
On December 1, 2002, APO’s Bail Bonds issued two bonds on behalf of Aegis, one in the amount of $1,000,000, and the other in the amount of $560,000. Defendant was released from custody; no court proceedings took place at that time. On December 11, 2002, defendant failed to appear, the bonds were ordered forfeited, and a bench warrant for defendant was issued.
Two bonds are at issue in this case. The trial court conducted combined proceedings, and although Aegis filed two separate appeals, we consolidated the appeals.
On June 16, 2003, Aegis filed a motion to vacate the forfeiture and to exonerate the bonds on the grounds of improper stacking of the bonds. On July 11, 2003, the trial court denied the motion, and on July 28, 2003 the clerk entered summary judgment on the bonds.
Aegis appealed, arguing the bonds were void. Aegis contended the powers of attorney were defective on their face because the name of the attorney in fact was not printed in space provided on the form. Aegis also argued the bonds were improperly stacked (more than one bond was combined to meet bail) in violation of language contained in the powers of attorney. We rejected those contentions and affirmed the summary judgment. (People v. Aegis (December 3, 2004) No. B169321 [nonpub. opn.].)
On January 5, 2006, Aegis moved again to exonerate the bonds, asserting new grounds that defendant had improperly been released under Penal Code section 1166 because defendant was not eligible for bail and the court failed to review the factors set forth in the statute. Aegis contended a bond posted in violation of section 1166 was null, void and unenforceable. Aegis argued the action was not time barred because in the prior motion, Aegis had challenged the validity of the bond forfeitures by asserting that the bonds were illegally stacked, which was unrelated to the current motion to exonerate, and in any event, even if the matters were related, because the bail bonds were void from the inception, they were subject to attack by later motion.
Section 1166 provides in relevant part that, “If a general verdict is rendered against the defendant, or a special verdict is given, he or she must be remanded, if in custody, or if on bail he or she shall be committed to the proper officer of the county to await the judgment of the court upon the verdict, unless, upon considering the protection of the public, the seriousness of the offense charged and proven, the previous criminal record of the defendant, the probability of the defendant failing to appear for the judgment of the court upon the verdict, and public safety, the court concludes the evidence supports its decision to allow the defendant to remain out on bail. When committed, his or her bail is exonerated, or if money is deposited instead of bail it must be refunded to the defendant or to the person or persons found by the court to have deposited said money on behalf of said defendant.”
The County opposed the motion, arguing that Aegis’s arguments were barred by res judicata and collateral estoppel because its section 1166 challenge to the bonds could have been, but was not, raised in the prior motion to vacate the summary judgment and appeal to this court. The County further argued that section 1166 did not apply in the first instance because defendant was in custody at the time of the jury verdict.
In reply, Aegis contended that res judicata did not apply because the issues raised in the current motion had not been raised in prior proceedings, and in any event, because the underlying bonds were void and the judgments were void for being in violation of section 1166, they could be challenged in a collateral proceeding. Further, Aegis argued that section 1166 applied to the facts of the case, and its violation required exoneration of the bonds.
At the hearing, Aegis conceded that the stacking issue had been decided on appeal. However, in response to the court’s question whether the section 1166 issue had been waived because Aegis did not raise it earlier, Aegis contended that because the court’s failure to follow section 1166 rendered the bonds void, Aegis could not raise the issue until judgment on the bonds was actually entered; only at that time would it be able to contest the resulting void judgment.
The trial court found that section 1166 did not apply to a defendant who was not out on bail at the time the court was otherwise required to make the findings; further, section 1166 was not a bail forfeiture statute but a public safety statute. The court further found res judicata precluded Aegis’s assertion of the section 1166 issue because a motion to vacate the summary judgment had already been made. The trial court denied the motion.
DISCUSSION
Aegis contends that the trial court erred in failing to make the findings required under section 1166, and that its failure renders the bonds void. Further, it contends that res judicata does not apply to the motion to vacate because a new issue was raised (section 1166), and the underlying judgment is void and subject to attack at any time. We conclude res judicata bars relief and affirm.
Here, Aegis’s res judicata arguments are twofold: First, the section 1166 argument differs from the illegal stacking argument and may therefore be raised in a later action, and second, the court’s failure to apply section 1166 properly rendered the judgment void.
Under the doctrine of res judicata, a valid, final judgment on the merits is a bar to a subsequent action by parties or their privies on the same cause of action. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) In California, a “cause of action” is defined by the “primary right” theory. “The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) In particular, the primary right theory provides that a cause of action consists of (1) a primary right possessed by the plaintiff, (2) a corresponding duty devolving upon the defendant, and (3) a delict or wrong done by the defendant which consists of a breach of the primary right. (Gamble v. General Foods Corporation (1991) 229 Cal.App.3d 893, 898.) “‘. . . If the matter was within the scope of the action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. . . .” (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160.) The prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. (Ibid.)
Under the primary right theory, Aegis’s attempts to set aside the bonds on the grounds that they were improperly issued and hence void is the same primary right as it asserted in the prior proceedings, namely, to be obligated only to pay on validly issued bonds, whether the legal theory asserted is stacking or a violation of section 1166. Thus, res judicata bars Aegis’s attempt to raise the section 1166 in a later proceeding because the section 1166 argument could have been, but was not, raised at the first motion to vacate the summary judgment.
Furthermore, the ruling in the prior proceeding was not made in excess of the court’s jurisdiction. While a void judgment has no res judicata effect (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237), a judgment is not rendered void because the trial court may have erroneously applied the law. (Estate of Gardiner (1941) 45 Cal.App.2d 559, 563.) There is a distinction between the duty of the court to follow the law and the power of the court. (Ibid.) “The duty of the court in every controversy or proceeding is to decide right. Such duty implies that the court may decide wrong. Its jurisdiction is not defeated or limited by a wrong decision.” (Ibid.)
Appellant asserts that City and County of San Francisco v. Hartnett (1905) 1 Cal.App.652 stands for the proposition that a bond posted in violation of statute is void. That case, however, sets forth the far more limited rule that a bond posted where the person setting bail was without the jurisdiction to do so is void. There is no argument here, nor can there be, that the court was without the express authority to set bail; the claim instead is that the court erred in exercising that authority.
Therefore, even had the court been obligated to make express findings on the record, or even to consider section 1166 in these proceedings (issues we need not decide), its error did not make the bonds void because it was acting within its jurisdiction. Therefore, Aegis may not attack the judgment collaterally as a void judgment.
DISPOSITION
The order is affirmed. Respondent is to recover its costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.