Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. SJ3357, Edmund W. Clarke, Jr., Judge.
Andrea Sheridan Ordin, County Counsel, Ralph L. Rosato, Assistant County Counsel, and Takin Khorram, Deputy County Counsel for Plaintiff and Appellant.
Nunez & Bernstein and E. Alan Nunez, for Defendant and Respondent.
EPSTEIN, P. J.
The County of Los Angeles appeals from an order setting aside the bail forfeiture of Fairmont Specialty Group (Fairmont) and exonerating its bond. The County argues that the summary judgment on Fairmont’s bail forfeiture was not prematurely entered, and even if it were, Fairmont’s motion to set it aside was a collateral attack on a final judgment. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 2007, Bad Boys Bail Bonds (Bad Boys), an agent of the surety Fairmont, posted a bail bond for the release of Guillermo Saavedra. When Saavedra failed to appear at his jury trial on August 25, 2008, the trial court ordered the bail forfeited. A notice of forfeiture was mailed on August 26, 2008. On February 5, 2009, Fairmont and Bad Boys moved for an extension. On March 10, 2009, the trial court granted a 120-day extension to July 8, 2009. On July 7, 2009, Fairmont and Bad Boys filed a second motion to extend, which was set for a hearing on July 22, 2009, and was then continued to July 31, 2009. On July 31, 2009, the surety and its agent failed to appear, and the court denied their motion. On the same day, the trial court entered summary judgment on the bail forfeiture. A notice of entry of judgment was mailed on August 4, 2009. Fairmont filed a motion to set aside the summary judgment on October 2, 2009. On December 18, 2009, the trial court granted the motion and ordered the bond exonerated. This timely appeal followed.
The motion was accompanied by a declaration stating that, on August 4, 2009, the attorney representing the surety and its agent had attempted to file a motion to vacate under Code of Civil Procedure section 473, subdivision (b), but the court clerk had refused to accept it.
An order on a motion to set aside a summary judgment, vacate a forfeiture, and exonerate a bail bond is appealable. (See Code Civ. Proc., § 904.1, subd. (a)(2) [order made after an appealable judgment is appealable]; People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 5, fn. 4 [order denying motion to vacate summary judgment on bail bond forfeiture appealable].)
DISCUSSION
I
Whether the summary judgment in this case was entered prematurely depends on the interpretation of the statutory scheme governing bail forfeitures in Penal Code section 1305 et seq. and is subject to de novo review. (See People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1074 (Aegis Security).) We construe the statutory provisions strictly in favor of the surety and consider any nonconforming acts of the trial court to be in excess of its jurisdiction. (Ibid.)
Unless specified otherwise, all subsequent statutory references are to the Penal Code.
The relevant statutory scheme has been summarized as follows: “When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).) The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds. (e), (i), 1305.4.) [¶] After the appearance period expires, the trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds. (a), (c).) If summary judgment is not entered within the statutory 90-day period, the bond is exonerated. (§ 1306, subd. (c).)” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658, fn. omitted (American Contractors).)
The issue in this case is whether the summary judgment on Fairmont’s bail forfeiture was premature because it was entered on the same day the trial court denied the second motion to extend the appearance period. Two cases dealing with the period within which the trial court has power to enter summary judgment help resolve this issue. In People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758 (Granite State), the surety moved to vacate the bail forfeiture and exonerate the bond before the appearance period expired, but the hearing on its motion took place after the expiration of the appearance period. The appellate court reasoned that “under section 1305 a motion to vacate forfeiture must be filed before the end of the exoneration period, and the facts upon which the motion is based must be established before that period expires. The hearing on the motion, however, can occur within the 30 days following the exoneration period, and the hearing can be continued to an even later date upon a showing of good cause. (§ 1305, subd. (i).) Holding the hearing after the exoneration period has expired does not extend that period, which is the period of time for filing a motion to vacate and establishing the grounds for relief, but does extend the time to actually set aside the forfeiture. Only when the court actually denies the motion does ‘the period of time specified in Section 1305’ elapse ‘without the forfeiture having been set aside’ (§ 1306, subd. (a)) and the 90-day period for entering summary judgment begin to run. (§ 1306, subd. (c).)” (Id. at p. 768.) Consequently, the Granite State court held that the trial court’s “power to enter summary judgment begins on the day following denial of the motion and expires 90 days later.” (Id. at p. 770.)
After Granite State was decided, the California Supreme Court considered a case where a motion to extend the appearance period was filed on the 184th day and summary judgment was entered on the 185th day of that period. (American Contractors, supra, 33 Cal.4th at p. 659.) The parties agreed that the summary judgment entered on the last day of the appearance period was premature. (Id. at p. 660.) Thus, the court had no reason to consider “whether the filing of a motion for extension of the appearance period (or a motion to vacate forfeiture) extends the commencement of the 90-day period for entering summary judgment.” (Id. at p. 658, fn. 3.)
In Aegis Security, supra, 130 Cal.App.4th at page 1076, the appellate court followed Granite State to hold that summary judgment was prematurely entered while a motion to extend the appearance period was pending. A motion to extend the appearance period under section 1305.4 may be filed and calendared under section 1305, subdivision (i). Thus, similarly to a motion to vacate forfeiture, a motion to extend filed within the appearance period may be heard up to 30 days after that period expires. The trial court may extend the 30-day period upon a showing of good cause. (§ 1305, subd. (i).) The trial court in Aegis Security did not grant the full 180-day extension outright, and the surety filed two additional motions to extend. Its third motion was filed on the last day of the second extended period and was still pending when the court entered summary judgment. The motion was subsequently denied. (Aegis Security, supra, 130 Cal.App.4th at pp. 1073-1074). The appellate court held that summary judgment was entered prematurely, reasoning that “[i]f Aegis’s statutorily authorized motion to extend the appearance period did not postpone the date on which the trial court could first enter summary judgment, the motion would be futile. Such a construction of section 1305.4 would contravene the mandate to strictly construe the bail forfeiture statutes in favor of the surety.” (Id. at p. 1076.)
Several shorter extensions may be granted, so long as they do not cumulatively exceed the 180 days allowed in section 1305.4. (People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 1377, 1380.)
Applying the holdings of Granite State and Aegis Security, we conclude that the summary judgment in this case was entered prematurely. The cases hold that summary judgment may be entered only after a pending motion to vacate forfeiture or to extend the appearance period is decided. (Granite State, supra, 114 Cal.App.4th at p. 770; Aegis Security, supra, 130 Cal.App.4th at p. 1076.) Here, as in Aegis Security, the trial court originally granted a partial extension of the appearance period. The surety and its agent filed their second motion to extend one day before the original extension expired. The motion was denied 24 days after it was filed and 23 days after the original extension expired. Summary judgment on the bond forfeiture was entered the same day the motion was denied. Under Aegis Security, the motion to extend postponed the date on which the trial court could first enter summary judgment until after the motion to extend was decided. (Ibid.) More specifically, under Granite State, the 90-day period for entering a summary judgment began on the day after the motion was denied. (Granite State, at p. 770.) Thus, the summary judgment entered on the day when the motion to extend was denied was one day premature.
II
A premature summary judgment is voidable as an act in excess of the trial court’s jurisdiction. (American Contractors, supra, 33 Cal.4th at pp. 662-663.) A voidable judgment is valid until set aside and is not subject to collateral attack. (Id. at p. 661.) “Errors which are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack once the judgment is final unless ‘unusual circumstances were present which prevented an earlier and more appropriate attack.’ [Citations.]” (Ibid.) In American Contractors, the surety’s motion to set aside the summary judgment, filed in the trial court eleven months after the judgment had been entered, was deemed to be an impermissible collateral attack. (Id. at p. 657.) Similarly in Aegis Security, the surety’s motion to set aside the summary judgment was rejected as a collateral attack on a final judgment, filed as it was two months after the time to appeal the judgment had expired. (Aegis Security, supra, 130 Cal.App.4th at pp. 1074, 1076.)
The County contends that Fairmont’s motion to set aside the summary judgment was an impermissible collateral attack because Fairmont did not appeal the judgment within 60 days. But American Contractors recognized that a voidable judgment may be challenged directly by a motion to vacate it in the trial court. (American Contractors, supra, 33 Cal.4th at p. 661.) Here, Fairmont filed a motion to set aside the summary judgment on October 2, 2009, less than 60 days after notice of the judgment was mailed on August 4, 2009. At that time, the judgment was not final. (See Cal. Rules of Court, rule 8.104(a)(1)-(3) [a judgment is final if a notice of appeal is not filed on or before the earliest of (1) 60 days after the trial court’s mailing of the notice of entry of judgment or a file-stamped copy of the judgment, (2) 60 days after a party’s service of the notice of entry of judgment or a file-stamped copy of the judgment, or (3) 180 days after entry of judgment].) Thus, unlike the motions in American Contractors or Aegis Security, Fairmont’s motion was not a collateral attack on a final judgment. The County does not argue that the motion, which was based on Code of Civil Procedure section 473, was untimely under that section or was otherwise procedurally unauthorized by the statutes governing direct attack. (See 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 8, pp. 592-593 [untimely or procedurally unauthorized motion to vacate or set aside judgment in the same action is a collateral attack].)
In addition, Fairmont’s October 2, 2009 motion to set aside the prematurely entered summary judgment was filed within the 90-day period during which the trial court still had power to enter summary judgment. The motion was calendared for hearing on December 18, 2009, a date beyond the 90-day period, but the County did nothing to expedite the matter. On December 4, 2009, Fairmont filed a supplemental memorandum of points and authorities advising the court that the 90-day period had expired. The County did not file its opposition to the motion until December 17, 2009, one day before the hearing and after the court’s power to correct its error had expired. Under the circumstances, we have no basis for concluding that Fairmont’s motion to set aside the summary judgment was improper.
DISPOSITION
The order is affirmed. Respondent to have its costs on appeal.
We concur: MANELLA, J. SUZUKAWA, J.