Opinion
E074469
08-04-2021
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. AMERICAN CONTRACTORS INDEMNITY CO., Defendant and Appellant.
Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Gregory P. Priamos, County Counsel, Tiffany North, Kelly A. Moran and Eric L. Stopher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. PSC1907297. Burke Strunsky, Judge.
Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant.
Gregory P. Priamos, County Counsel, Tiffany North, Kelly A. Moran and Eric L. Stopher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS J.
I. INTRODUCTION
Defendant and appellant American Contractors Indemnity Co. (surety) executed a bail bond to secure the release from custody of criminal defendant Pedro Castellanosleon (P.C.), promising to guarantee P.C.'s appearance in court or pay the $100,000 bail amount. When P.C. failed to appear, the bond was ordered forfeited, and summary judgment was entered against surety on the bond. Surety moved to set aside the judgment under Code of Civil Procedure section 473 (section 473) on the ground the trial court “lacked jurisdiction to enter a summary judgment.” The trial court denied the motion, and surety appeals from the order denying its motion to set aside the judgment.
On appeal, surety advances various arguments directed at alleged error in the underlying bail proceedings and contractual grounds that purportedly entitle it to set aside the underlying forfeiture, but it offers no explanation why any of these errors render the subsequently entered judgment subject to being set aside under section 473. In the absence of any argument directed at error in the actual order subject of this appeal, we affirm the order.
II. FACTS AND PROCEDURAL HISTORY
In September 2017, the People charged P.C. in a criminal complaint, and the trial court set bail in the amount of $100,000, based upon the charged offense, without an inquiry into P.C.'s ability to pay.
In July 2017, Bretz Bail Bonds, an agent for surety, executed a bail bond. In exchange for the People's release of P.C. from custody, surety agreed to pay $100,000, if P.C. failed to appear as required by order of the court, and further agreed that judgment could be summarily entered against it under such circumstances.
On September 10, 2018, when P.C. failed to make a required court appearance, the trial court ordered bail forfeited, and a notice of forfeiture was mailed to the parties. Surety sought an extension of time to seek vacation of the forfeiture and exoneration of the bond pursuant to Penal Code section 1305.4, and it was granted an extension until October 7, 2019. The record suggests, at some point, surety filed a motion to vacate the forfeiture and exonerate the bond but withdrew the motion prior to the hearing. The trial court entered summary judgment on the bond on October 8, 2019, and the notice of entry of judgment was mailed to the parties the following day.
A copy of this motion was not included as part of the record on appeal.
On October 25, 2019, surety filed a motion to set aside the judgment pursuant to section 473. Surety argued the underlying bond was void because the bail amount was set without consideration of P.C.'s ability to pay in violation of P.C.'s constitutional rights. In its reply to the People's opposition, surety injected an additional argument that the underlying bail bond constituted an unenforceable contract because it was unconscionable. However, surety did not explain why either of these arguments would constitute grounds for setting aside a judgment under the provisions of section 473.
On November 22, 2019, the trial court called the matter for hearing. No parties appeared to offer oral argument on the motion, and the trial court denied surety's motion. Surety appeals solely from the order denying its motion to set aside the judgment pursuant to section 473.
III. DISCUSSION
A. Legal Background
“ ‘While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature. [Citation.] “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.]... Nevertheless, the “bail bond is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond.”' ” (People v. Financial Casualty & Surety, Inc. (2021) 64 Cal.App.5th 405, 411 (Financial Casualty 2021).)
When a bond is forfeited, Penal Code section 1305 generally provides an exoneration period of 180 days within which an interested party may seek to vacate the forfeiture and exonerate the bond for a variety of reasons. (Pen. Code, § 1305.) The exoneration period may be extended at the discretion of the court for a time not exceeding an additional 180 days. (Pen. Code, § 1305.4.)
However, after the exoneration period has lapsed without the forfeiture having been set aside, the trial court is mandated by statute to enter summary judgment in the amount of the bond plus costs. (Pen. Code, § 1306, subd. (a); County of Los Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th 944, 950, 954 (County of Los Angeles).) Entry of summary judgment in this context is “a consent judgment entered without a hearing and the proceedings are not adversarial. [Citation.] The only issue in a challenge to the summary judgment is whether it was entered pursuant to the terms of the consent, which requires compliance with Penal Code sections 1305 and 1306.” (People v. American Contractors Indemnity Co. (2015) 238 Cal.App.4th 1041, 1047.)
B. Scope of Appellate Review
As a preliminary matter, we are required to clarify the scope of our review. “While a notice of appeal must be liberally construed, it is the notice of appeal which defines the scope of the appeal by identifying the particular judgment or order being appealed.” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.) “ ‘ “Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from”' ” (In re J.F. (2019) 39 Cal.App.5th 70, 75), and we lack jurisdiction to consider alleged errors in the trial court proceedings that fall outside the scope of the order identified in the notice of appeal (see Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 580 [appellate court has no jurisdiction to consider challenge to rulings not part of order identified in notice of appeal]).
On appeal, surety advances several arguments directed at the validity of the underlying bond or forfeiture. However, the only order identified in surety's notice of appeal is the trial court's order denying its motion to vacate the judgment. Surety did not appeal from the bail-setting order, the order declaring forfeiture, any order pertaining to a motion to set aside the underlying forfeiture, or the judgment. Thus, the scope of this appeal is limited to consideration of error in the trial court's denial of surety's motion to vacate the judgment pursuant to section 473. Surety is not entitled to use this appeal as an open platform to raise claims of error with respect to other orders or the judgment.
Surety did not move to set aside or vacate the forfeiture within the exoneration period in this case, and there is no order denying such a motion.
We acknowledge that, generally, “ ‘[t]he nature of a motion is determined by the nature of the relief sought, not by the label attached to it' ” (see Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193), and that surety attempted to use its motion in the trial court to advance arguments related to vacating the underlying forfeiture. Surety's notice of motion explicitly stated the motion was made “on the grounds that the court lacked jurisdiction to enter a summary judgment” and, as a result, the judgment should be set aside under section 473. But, it proceeded to argue its motion as if it were a motion to vacate forfeiture, without any effort to explain why the purported reasons that might have entitled surety to vacation of the forfeiture should have entitled surety to vacation of a subsequently entered judgment under section 473. However, as we explain, surety's motion here cannot be deemed a motion to vacate the underlying forfeiture to expand the issues reviewable on appeal. This is because, by the time surety filed its motion in the trial court, it was statutorily barred from seeking vacation of the forfeiture; and the trial court was equally without jurisdiction to consider such a motion.
Surety takes this same approach on appeal, essentially ignoring the procedural posture of this case, arguing that the underlying bond is invalid but failing to discuss why the alleged invalidity establishes error in the trial court's denial of surety's motion to vacate judgment pursuant to section 473. Arguably, this deficiency alone warrants forfeiture or abandonment of the entire appeal. “We are not bound to develop appellants' arguments for them, and we ‘may and do “disregard conclusory arguments that... fail to disclose the reasoning by which the appellant reached the conclusion he wants us to adopt.”' ” (Rubio v. CIA Wheel Group (2021) 63 Cal.App.5th 82, 102.) An “appellant's failure to present any pertinent or intelligible legal argument... constitutes an abandonment of the appeal....” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1120.)
“[A] trial court may not vacate the forfeiture of a bond on a theory the surety did not assert and did not support with evidence during the appearance period.” (People v. The North River Ins. Co. (2017) 18 Cal.App.5th 863, 873.) Once the statutory time to set aside a forfeiture has elapsed without the forfeiture having been set aside, the trial court is mandated by statute to enter summary judgment. (Pen. Code, § 1306, subd. (a); People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025, 1030.) Given this statutory mandate, “[a]fter the exoneration period expires-and no timely filed motion to vacate forfeiture or extend the exoneration period is pending-the court lacks jurisdiction to do anything but enter summary judgment.” (County of Los Angeles, supra, 235 Cal.App.4th at p. 954; see People v. Lexington National Ins. Co. (2007) 158 Cal.App.4th 370, 373 [“[A] court is without jurisdiction to vacate a forfeiture if a motion to vacate is not made within that period.”].)
Thus, regardless of surety's intent, its motion to vacate the subsequently entered judgment could only be granted based upon recognized grounds for vacating a judgment and could not have been used to attack the underlying forfeiture. The California Supreme Court's decision in People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301 is instructive. In that case, a surety failed to file a motion seeking to vacate forfeiture and exonerate the bond within the statutory period provided in Penal Code section 1305, and summary judgment was entered pursuant to statute. (Indiana Lumbermens, at p. 304.) A month after entry of judgment, the surety brought a motion to vacate the summary judgment, arguing that it could establish grounds for vacating the underlying forfeiture. (Ibid.) The California Supreme Court rejected the surety's claim that it could utilize this procedure to attack the forfeiture, explaining “ ‘[b]y requiring that courts enter summary judgment at the expiration of the statutory period, the Legislature clearly contemplated that motions to vacate the forfeiture and exonerate the bond... be brought prior to the expiration of the statutory period.' ” (Id. at p. 307.) It further explained that “[t]he policy disfavoring forfeiture cannot overcome the plainly intended meaning of the statute.... [F]ailure to bring a timely motion results in a statutory bar to relief....” (Id. at p. 308.)
Likewise, in People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127, a surety failed to timely bring a motion to vacate forfeiture within the exoneration period. (Id. at pp. 140-141.) Thereafter, the surety brought a motion to vacate summary judgment pursuant to section 473, arguing that its failure to timely seek vacation of the forfeiture was a result of mistake. (People v. Financial Casualty & Surety, Inc., at pp. 140-141.) The Court of Appeal affirmed denial of surety's motion to set aside summary judgment, explaining that “Code of Civil Procedure section 473 ‘ “does not offer relief from mandatory deadlines deemed jurisdictional in nature, ”' ” and where “[t]here was no timely filed motion to set aside the forfeiture, ... [section 473] cannot be used to create jurisdiction where there is none.” (Id. at p. 140.)
As the above authorities make clear, surety's motion, brought after the expiration of the exoneration period and after the entry of judgment, could not function as a motion to vacate the forfeiture even if surety had intended to bring such a motion. Thus, the trial court could not have construed surety's motion as a motion to vacate the forfeiture, regardless of the substantive arguments asserted by surety in its motion, and it would be inappropriate to deem surety's motion as such a motion for purposes of review on appeal.
Nor would this court be inclined to consider surety's motion as such on appeal in the absence of any indication the trial court considered the motion as anything other than a motion to set aside judgment pursuant to section 473. (20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247, 1261 [Appellate courts are “generally disinclined to construe a motion as other than that which it has been labeled.”].)
Clarifying the scope of this appeal is not merely an academic exercise. The nature of surety's underlying motion determines the bases upon which the trial court could grant relief and upon which this court reviews the record for error. A timely motion to vacate the forfeiture could have been granted for the reasons set forth in Penal Code section 1305 or any number of other reasons, including an attack on the validity of the bond based upon equitable contract principles. (See People v. Bankers Ins. Co. (2016) 247 Cal.App.4th 1004, 1010-1011 [trial court may consider whether government materially increased risk to surety without surety's consent, thereby depriving surety of benefit of its bargain].) However, once the exoneration period expired and judgment was entered, surety was limited to the statutory procedures and legal principles upon which it could obtain relief from a judgment.
“[I]t has long been the law that the remedies provided in Penal Code section 1305 for exoneration of a bond forfeiture under certain conditions are not exclusive.” (People v. Western Ins. Co. (2013) 213 Cal.App.4th 316, 324; see People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456, 461 [“Section 1305... does not set forth the exclusive bases for vacating a forfeiture.”].)
With respect to the motion actually noticed by surety in the trial court, it was entitled to set aside the judgment only upon the grounds set forth in section 473. Our review is limited to alleged error in the order denying this motion, and claims of error related to other proceedings in the trial court are outside the scope of this appeal.
C. Standard of Review
Under section 473, a trial court may set aside any judgment within six months of entry of judgment, upon a showing the judgment was entered as a result of surprise, inadvertence, mistake, or excusable neglect. (§ 473, subd. (b).) Alternatively, a trial court may set aside a judgment that is void at any time. (§ 473, subd. (d).) While surety's notice of motion invoked only section 473, without specifying whether relief was sought under subdivision (b), or subdivision (d), surety made no assertions of a mistake or neglect in its written submissions, and it submitted no declarations attesting to any mistake or neglect in support of its motion. Further, surety's notice of motion made clear it sought relief on the basis the trial court lacked jurisdiction to enter judgment. Thus, the only reasonable interpretation of surety's motion is that surety sought relief pursuant to section 473, subdivision (d), on the ground the judgment was void.
“Section 473, subdivision (d) provides, ‘The court may, upon motion of the injured party, or its own motion, ... set aside any void judgment or order.' The inclusion of the word ‘may' means that even if the trial court determines the order or judgment was void, it still retains discretion to set the order aside or allow it to stand.” (Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822; see People v. The North River Ins. Co. (2020) 48 Cal.App.5th 226, 232 (North River) [“By its plain terms, this provision grants a trial court the discretion.”].) Thus, the trial court's order denying a motion to set aside under section 473, subdivision (d), is reviewed for abuse of discretion.
However, “[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) Thus, to the extent a party seeks to establish a judgment's invalidity based upon consideration of extrinsic evidence, such as a claim of improper service, the trial court's factual findings are reviewed for substantial evidence. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250.) The ultimate legal question of whether a judgment is void is reviewed de novo. (LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 871; Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 961 [“The issue of whether a judgment is void on its face is a question of law, which we review de novo.”].) Finally, even if a judgment is shown to be void, the trial court's ultimate decision whether to vacate the judgment will be reversed only if arbitrary and capricious.
While not relevant in this case, there are circumstances in which the trial court is called upon to weigh competing equitable considerations in deciding whether to set aside a void judgment, “such as where ‘(1) The party seeking relief, after having had notice of the judgment, manifested an intention to treat the judgment as valid; and (2) granting the relief would impair another person's substantial interest of reliance on the judgment.' ” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229.)
As we explain, the record before us does not establish the judgment in this case was void. Accordingly, the trial court had no discretion to set it aside, and we affirm the order denying surety's motion.
D. Errors in the Collateral Criminal Proceedings Do Not Void the Bond or Judgment
Surety devotes significant argument to the proposition that the underlying bail order was erroneous. However, even assuming for the purpose of argument that the bail order was erroneous, surety offers no explanation or even argument attempting to set forth why such error would invalidate the judgment, which it sought to vacate under section 473.
Nor do we believe surety could have presented a convincing argument on this point even if it had attempted to do so. Numerous published decisions have concluded that error in setting bail in a criminal proceeding does not render the resulting bond, forfeiture, or judgment on the bond void. (People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, 899 [“Failure to comply with procedural requirements... intended to safeguard the defendant's constitutional rights, did not render the subsequently issued bond void.”]; North River, supra, 48 Cal.App.5th at p. 235 [“[E]rrors in a trial court's setting of bail during the criminal prosecution do not let the surety off the hook in the collateral bail proceedings.”]; People v. American Surety Company (2020) 55 Cal.App.5th 265, 271 [“ ‘ “Defects and irregularities... in the proceedings preliminary to the taking of bail are considered as waived by the surety when it assumes its obligations... at the time of the execution of the bond.”' ”]; Financial Casualty 2021, 64 Cal.App.5th at p. 415 [same]; People v. Accredited Surety & Casualty Co., Inc. (2021) 65 Cal.App.5th 122, 134 [same].)
As these decisions make clear, “[b]ail is a function of ‘two different contracts between three different parties'-namely, (1) a contract between a criminal defendant and a surety under which the surety posts a bail bond in exchange for the defendant's payment of a premium and his promise to pay the full amount of the bond in the event of his nonappearance, and (2) a contract between the surety and the People under which the surety ‘ “ ‘ “acts as a guarantor of the defendant's appearance in court under risk of forfeiture of the bond.”' ”' ” (North River, supra, 48 Cal.App.5th at p. 235.) With respect to the contract between the surety and the People, “ ‘the bail order is the offer, and the posting of a bond is the acceptance of that offer.' ” (People v. Financial Casualty & Surety, Inc. (2019) 39 Cal.App.5th 1213, 1225; see People v. Financial Casualty & Surety, Inc. (2020) 52 Cal.App.5th 347, 356 [“[B]ail bonds are contracts with the State of California.”].) Thus, at the time the surety contracts with the People, the amount of bail has already been set, and the surety is free to accept or reject the offer of contract based upon that amount. Because the procedure for setting the amount of bail is separate, distinct, and conducted prior to any contract between the People and the surety, any error in the bail proceeding prior to execution of the bond does not invalidate the bond or subsequent judgment on the bond.
We agree with the reasoning set forth in these decisions and consider it a settled proposition of law that error in the criminal procedures setting the amount of bail does not invalidate a subsequently executed bond, forfeiture of that bond, or judgment entered on the bond. Thus, even assuming an error in the setting of bail impacted the amount of surety's bond, a summary judgment otherwise validly entered against surety following forfeiture of that bond is not void.
Nor would such error establish error in the trial court's subsequent denial of a motion to set aside the judgment under section 473. Section 473, subdivision (d), can only be utilized to vacate void judgments. (North River, supra, 48 Cal.App.5th at pp. 232-234; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495-406 [“A trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void....”]; Lee v. An (2008) 168 Cal.App.4th 558, 563 [Section 473, subdivision (d), does not permit setting aside judgments that are merely voidable but not void.].) Thus, where the alleged error does not render a judgment void, such error, even if true, does not establish an abuse of discretion in denial of a motion to vacate judgment under section 473, subdivision (d).
E. Surety Forfeited Any Claim Based Upon Civil Code Section 2809
Perhaps in recognition of the fact that the overwhelming weight of authority holds that error in the underlying bail proceeding does not invalidate the bond and, therefore, cannot establish that a subsequent judgment is void, surety argues that it is entitled to reduction of the judgment based upon Civil Code section 2809. We conclude this claim is forfeited for failure to raise the issue in the trial court below and further conclude the claim would be without merit even in the absence of forfeiture.
Civil Code section 2809 provides: “The obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; and if in its term it exceeds it, it is reducible in proportion to the principal obligation.”
“As a general rule, an appellate court will not review an issue that was not raised by some proper method by a party in the trial court.” (Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 913; see Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 264.) Here, any claim of error premised upon Civil Code section 2809 has clearly been forfeited. Surety raised this argument for the first time on appeal. The argument appears nowhere in any of its written submissions to the trial court; the record contains no request to modify or reduce the judgment based upon this statute; and surety did not appear at the time of the hearing to make any additional arguments or requests not referenced in its written submissions. The claim is, therefore, forfeited on appeal.
Further, even in the absence of forfeiture, we would find no error warranting reversal based upon this argument. As we have already explained, a trial court has discretion to set aside a judgment under section 473, subdivision (d), only where the judgment is void. “A judgment is ‘void' only when the court entering that judgment ‘lacked jurisdiction in a fundamental sense' due to the ‘ “entire absence of power to hear or determine the case”' resulting from ‘ “absence of authority over the subject matter or the parties.”' ” (North River, supra, 48 Cal.App.5th at p. 233.)
Here, surety's argument that the bond and subsequent judgment cannot be enforced beyond P.C.'s underlying obligation pursuant to Civil Code section 2809 is not an argument directed at the trial court's fundamental jurisdiction over the subject matter or parties. In fact, by its very nature, the argument necessarily concedes the trial court has jurisdiction over the subject matter and the parties because it calls upon the trial court to consider, interpret, and declare the parties' respective rights arising out of the bail contract. Surety goes so far as to request this court remand the matter, such that the trial court may conduct an evidentiary hearing to determine the appropriate amount of bail and any corresponding judgment. Thus, surety's own argument on appeal essentially concedes any supposed error involving Civil Code section 2809 is not one that deprives the trial court of fundamental jurisdiction, such that the judgment is void.
Absent a showing the judgment is void, surety was not entitled to vacate the judgment under section 473, subdivision (d). Thus, even if surety's argument regarding Civil Code section 2809 had been properly raised in the trial court proceedings, the trial court would not have erred in rejecting this argument and denying surety's motion.
F. Surety Also Forfeited Any Claim of Unconscionability
Surety also asserts a vague argument regarding unconscionability. We conclude that, regardless of surety's intended argument, any such argument is forfeited; and we further conclude that it would be without merit even in the absence of forfeiture.
The nature of surety's argument is entirely unclear, as it begins by discussing general principles of unconscionability in the context of contracts, proceeds to a discussion of the oppressive nature of the bail setting process on a criminal defendant, and somehow concludes that renders enforcement of any forfeiture or judgment against surety unconscionable. The only commonality between these wholly distinct items of discussion appears to be the use of the term “unconscionable, ” albeit in different contexts and with arguably different meanings.
Forfeiture of an issue on appeal is not limited to situations in which the record in the trial court is entirely silent on an issue. “[T]he appellant has ‘ “the burden of showing reversible error by an adequate record, ”' ” and “ ‘[o]ne aspect of that burden requires that the appellant develop the fullest possible evidentiary record before seeking review.' ” (Villano v. Waterman Convalescent Hospital, Inc. (2020) 181 Cal.App.4th 1189, 1200.) Thus, mere mention of an issue in the trial court is not sufficient to preclude forfeiture, if the issue is raised in a manner that prevents it from being fully and fairly considered. (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011 [“Issues presented on appeal must actually be litigated in the trial court-not simply mentioned in passing.”]; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [forfeiture where counsel mentioned issue before trial court but was not inclined to go through the evidence in support of the issue]; Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013 [passing reference to objection without specifically developing argument insufficient to preserve issue on appeal].)
Here, the only mention of unconscionability by surety in the trial court occurred in its written reply to the People's opposition to surety's motion. However, “[a] basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought [citations], and courts generally may consider only the grounds stated in the notice of motion.” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277; see § 1010; Cal. Rules of Court, rule 3.1110(a).) “The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.”' ” (Kinda, at p. 1277.) “This rule is based on the same solid logic applied in the appellate courts, specifically that ‘points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.' ” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538 [new evidence not permitted in reply papers].) Thus, by waiting until its reply to raise the issue of unconscionability, surety deprived the People of an opportunity to brief the issue for the trial court.
While raising an issue for the first time in a reply to the People's opposition will not always prevent the issue from being fully and fairly considered in the trial court, it clearly does in the context of a claim of unconscionability. This is because the parties are statutorily entitled to present evidence in response to any claim that a contract may be unconscionable. (Civ. Code, § 1670.5, subd. (b).)
More importantly, because surety improperly raised the issue of unconscionability for the first time in its reply in the trial court, the trial court had discretion to refuse to consider the issue on purely procedural grounds. (Hernandez v. National Dairy Products Co. (1954) 126 Cal.App.2d 490, 494 [“Grounds set forth in a notice of motion may not be enlarged by supporting affidavits or by oral argument, ” and where “the record discloses nothing to the contrary, [the appellate court] assume[s] the learned trial judge, being aware of this rule, ignored the irrelevant material... and limited his consideration to the grounds urged in the notice of motion.”]; see Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125-1126 [where notice of motion specified only discretionary relief as grounds for motion under § 473, trial court not required to consider availability of alternative grounds for relief even if supported by evidence before it]; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1189-1191 [trial court has discretion to refuse to consider argument raised for first time at hearing on summary judgment, even though evidence was referenced for other purposes in written submissions of parties].)
Here, the record does not disclose whether the trial court rejected surety's unconscionability argument on the merits or as a matter of procedure. Neither the trial court's minute order nor the record of the oral proceedings indicates the basis for the trial court's denial of surety's motion. Nor did surety appear at the hearing to request clarification on the issue, seek a statement of decision, or otherwise request clarification of the trial court's ruling. “[W]hen a party does not tell us if or how the court ruled on an issue, the party has forfeited appellate consideration of the issue.” (Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, 95.) Thus, we conclude that surety has forfeited its unconscionability argument on appeal by failing to properly raise the issue in the trial court and failing to preserve an adequate record for review.
A record sufficient to indicate if and how the trial court ruled on this issue is necessary in this case. Had the trial court exercised its discretion to consider the unconscionability argument but rejected it on the merits, we would review that decision by determining whether substantial evidence supports its factual findings and independently consider the application of the law to those facts. In contrast, if the trial court exercised its discretion to reject the argument entirely on procedural grounds, that discretionary decision would be subject to reversal only if arbitrary and capricious.
Finally, even in the absence of forfeiture of this issue, we would find no error warranting reversal. First, all of surety's arguments before the trial court were directed to the supposed unconscionability of the bail order, characterizing the bail order as a contract between P.C. and the People, and arguing that any such contract was the result of an unfair bargaining process. This argument was without merit. A bail setting order is not a contract between a criminal defendant and the People, as it does not require a criminal defendant's consent. (See Civ. Code, § 1550 [mutual consent essential element of any contract]; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 789 [same].) As we have already explained, in the bail bond context, the defendant and state do not contract with each other but, instead, each contract with the surety. (North River, supra, 48 Cal.App.5th at p. 235.) Thus, even if the trial court had considered surety's unconscionability argument on the merits, it would not have erred in rejecting this argument.
Second, as surety admits in its opening brief on appeal, where a court concludes a contract or contract clause is unconscionable, it has discretion to refuse to enforce it or, alternatively, enforce the contract on modified terms intended to avoid any unconscionable result. (Civ. Code, § 1670.5, subd. (a).) Thus, even if the underlying bond, as a contract between surety and the People, was unconscionable in some respect, such a conclusion would not deprive the trial court of fundamental jurisdiction such that the ensuing judgment is void. As we have already explained, absent a void judgment, the trial court has no discretion to vacate a judgment pursuant to Code of Civil Procedure section 473, subdivision (d). Thus, we find no error warranting reversal even in the absence of forfeiture.
IV. DISPOSITION
The order is affirmed. Respondent to recover its costs on appeal.
We concur: McKINSTER Acting P. J., Miller J.