Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M96076
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Appellant American Contractors Indemnity Company (hereafter, the Surety) issued a bail bond to ensure that the accused, Fernando Narez, would appear in court. After Narez failed to appear, the bail bond was ordered forfeited. The Surety did not file a motion to set aside the forfeiture within the statutory 180-day period and thereafter summary judgment was entered in favor of the People, respondent herein. The Surety appeals from the trial court’s order denying its motion for an order setting aside the summary judgment and exonerating the bail bond.
Penal Code section 1305, subdivision (c)(3), (i); People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 304-305 (Indiana Lumbermens).
According to the Surety, the trial court erred because (1) the Surety’s failure to file a motion to set aside the bail bond forfeiture was due to the court clerk misinforming the Surety’s agent, who had presented surrender documents and paid a surrender fee, that an exoneration notice would be mailed to him; and (2) where, as here, the defendant is arrested outside the county where the case is pending, Penal Code section 1305, subdivision (c)(3) does not require the Surety to file a motion to vacate the forfeiture within the statutory 180-day period. For the reasons stated below, we disagree with both contentions and therefore we will affirm the order.
All further statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Summary Judgment
On January 9, 2008, the Surety issued a $30,000 bail bond to ensure that Fernando Narez would appear in court. The bail bond stated that Narez was to appear in Monterey County Superior Court on April 16, 2008. Narez failed to appear in court on April 16, 2008, and on April 18, 2008, the court mailed a notice of bail bond forfeiture to the Surety and its agent, Aardwolf Bail Bonds. The notice of forfeiture states, “Notice is hereby given that the bail in the above-entitled case was ordered forfeited by the Court due to the defendant’s failure to appear on [April 16, 2008]. Your contractual obligation to pay this bond will become absolute on the 185th day following the date of the forfeiture unless the Court orders the forfeiture set aside and the bond reinstated.”
Since the notice of bail bond forfeiture was mailed on April 18, 2008, the 185-day period expired on October 20, 2008. No motion to set aside the forfeiture was filed prior to October 20, 2008, and on January 2, 2009, the trial court entered summary judgment in the amount of $30,000 plus $320 in court costs, attorney fees and interest.
B. The Motion to Set Aside the Summary Judgment
On February 5, 2009, the Surety filed a motion for an order setting aside the summary judgment and exonerating the bail bond. The motion was based on the declaration of the Surety’s agent, Robert P. Melendez, asserting that Narez was arrested in Santa Cruz County prior to the expiration of the 185-day period on October 20, 2008, and describing Melendez’s subsequent communications with the clerk’s office of the Monterey County Superior Court regarding exoneration of the bail bond.
Melendez’s declaration indicates that on June 1, 2008, Narez was arrested and booked into the Santa Cruz County Jail on warrants from Santa Cruz County, Monterey County, and Santa Clara County. Another agent of the Surety “went to the Santa Cruz County Jail and surrendered a bail bond issued on behalf of [Narez] in one of the Santa Cruz County cases.” The Surety’s agent also obtained a copy of the Santa Cruz County Sheriff-Coroner booking sheet and a receipt from Santa Cruz County Superior Court acknowledging the Surety’s surrender of Narez on June 2, 2008.
On June 11, 2008, Melendez presented the Santa Cruz County Sheriff-Coroner booking sheet and the Santa Cruz County Superior Court’s receipt acknowledging the Surety’s surrender of Narez to a clerk of the Monterey County Superior Court. According to Melendez, he “informed the clerk that [Narez] was arrested in the underlying criminal case.... [His] purpose was to obtain an exoneration of the subject bail bond. It has been standard practice for [him] to present to the clerk of the court a surrender form and booking sheet and thereby obtain an exoneration of the bail bond.” By September 2008, however, Melendez had not received any notice from the court clerk regarding the status of the bail bond. For that reason, on September 9, 2008, Melendez obtained an in-custody letter from the Santa Cruz County Sheriff, which indicated that Narez remained in custody in Santa Cruz County.
On September 16, 2008, Melendez presented the in-custody letter to the clerk of the Monterey County Superior Court, along with the previously presented Santa Cruz County Sheriff-Coroner booking sheet and the Santa Cruz County Superior Court’s receipt acknowledging the Surety’s surrender of Narez. Melendez “again requested an exoneration of the bail bond because, as the surrender form indicated, [Narez] was in custody in Santa Cruz County on the underlying criminal case.” According to Melendez, the court clerk charged a $50 “surrender fee, ” which Melendez paid, and gave him a receipt for $50 entitled “Bail Reinstmt/Reassumption.” At that point, Melendez “left the courthouse having paid the fee, with the expectation that [he] would receive the notice of exoneration, as [he] was told by the clerk, via mail.”
After Aardwolf Bail Bonds received the January 2, 2009, notice of entry of summary judgment on the bail bond, Melendez returned to Monterey County Superior Court and “again provided a copy of the surrender form, the booking sheet and the in-custody letter.” He asked why summary judgment had been entered when he had previously submitted these documents and paid the surrender fee. According to Melendez, he “was told by a deputy clerk that there was no record of the documents which [he] had previously submitted... or of [his] payment of the surrender fee.” Melendez claimed that if he had known that summary judgment would be entered despite his payment of the surrender fee and submission of documents showing that Narez was in custody in another county, he “would have taken further action to assure that the bond would be exonerated....”
In its points and authorities in support of its motion for an order setting aside the summary judgment and exonerating the bail bond the Surety argued that the 185-day period set forth in section 1305, subdivision (c) for a motion to set aside a bail forfeiture did not apply where, as here, the defendant was arrested in another county on a bench warrant issued in the underlying criminal case, relying on the language of section 1305, subdivision (c)(3) and People v. Ranger Ins. Co. (2006) 141 Cal.App.4th 867 (Ranger). For that reason, the Surety maintained that the summary judgment could be set aside, the forfeiture vacated, and the bail bond exonerated on a motion made after expiration of the 185-day period.
Section 1305, subdivision (c)(3) provides, “If, outside the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, the court shall vacate the forfeiture and exonerate the bail.”
Alternatively, the Surety argued that because Melendez had paid a $50 surrender fee and had been told by the court clerk that he would receive a notice of exoneration in the mail, the Surety was entitled to the exoneration. The Surety also argued that the summary judgment should be set aside and the bail bond exonerated under the doctrine of equitable estoppel, since Melendez had relied to his detriment on the clerk’s representation that “exoneration would be forthcoming.”
C. The People’s Opposition to the Motion
The People filed opposition to the motion to set aside the summary judgment, relying on People v. Lexington National Ins. Co. (2007) 158 Cal.App.4th 370 (Lexington), which held, contrary to Ranger, supra, 141 Cal.App.4th 867, that under the statutory scheme for bail bonds, the 185-day period to file a motion to vacate the bail bond forfeiture applied where the defendant was arrested in another county. Since the Surety had failed to file a motion to vacate the forfeiture within the 185-day period, the People contended that the motion for an order setting aside the summary judgment and exonerating the bail bond must be denied.
D. Supplemental Points and Authorities Regarding Equitable Estoppel
After hearing oral argument on the motion on March 13, 2009, the trial court requested that the parties file further points and authorities regarding the doctrine of equitable estoppel.
In its supplemental points and authorities, the Surety argued that the trial court was precluded from entering summary judgment because the four elements of equitable estoppel had been met: (1) the court was apprised through its representative that Narez was in custody in Santa Cruz County and the Surety sought exoneration of the bond; (2) the court required payment of $50 for processing the surrender and exoneration, which Melendez paid; (3) Melendez did not expect that the court would nevertheless enter summary judgment; and (4) the Surety relied on the $50 transaction when it took no steps during the 185-day period to move for exoneration of the bond.
In their supplemental points and authorities, the People argued that, even assuming the doctrine of equitable estoppel could be applied against a court, the doctrine was not satisfied here because Melendez could not have reasonably relied on anything said or done by the court clerk. According to the People, Melendez was a licensed bond agent who was required to be knowledgeable about the law applicable to bail bonds. Alternatively, the People asserted that Melendez could have consulted an attorney regarding the appropriate procedure and filed a timely motion to vacate the forfeiture. The People also argued that reliance on the court clerk’s representations was unreasonable because the clerk was not authorized to give legal advice.
E. The Trial Court’s Order
After a second hearing held on May 1, 2009, the trial court issued its May 12, 2010 order denying the motion for an order setting aside the summary judgment and exonerating the bond on the ground that the motion was “brought beyond the 185 day appearance period. ([Lexington, supra, ] 158 Cal.App.4th 370.)” Thereafter, the Surety filed a timely notice of appeal.
The record on appeal does not include reporter’s transcripts of the hearings on the motion.
An order denying a motion to vacate summary judgment on a bail bond forfeiture is an appealable order. (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 5.)
III. DISCUSSION
On appeal, the Surety makes two arguments in support of its contention that the trial court erred in denying its motion for an order setting aside the summary judgment and exonerating the bail bond: (1) the Surety’s failure to file a motion to set aside the bail bond forfeiture was due to the court clerk misinforming the Surety’s agent, who had presented surrender documents and paid a surrender fee, that an exoneration notice would be mailed to him; and (2) where, as here, the defendant is arrested outside the county where the case is pending, section 1305, subdivision (c)(3) does not require the Surety to file a motion to vacate the forfeiture within the statutory 185-day period.
We review an order denying a motion to set aside a bail forfeiture for abuse of discretion, keeping in mind that the order is “not to be disturbed on appeal unless a patent abuse appears on the record.” (People v. Wilcox (1960) 53 Cal.2d 651, 656; People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.) Our analysis begins with the Surety’s second issue regarding the time limit to file a motion to vacate the forfeiture where the defendant is arrested or in custody in another county, since the issue was recently resolved by the California Supreme Court in Indiana Lumbermens, supra, 49 Cal.4th 301.
A. The Statutory 180-Day Time Limit
The statutory scheme governing bail forfeiture and exoneration is set forth in the Penal Code. Pursuant to section 1305, “[w]hen 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).)” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657, fn. omitted (American Contractors).) “If the defendant appears in court or is returned to custody within 180 days, the forfeiture must be vacated and the bond exonerated. (§ 1305, subd. (c).) Otherwise, the court enters summary judgment against the surety.” (Indiana Lumbermens, supra, 49 Cal.4th at pp. 304-305, fn. omitted.)
Section 1305, subdivision (a) provides, “A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: [¶] (1) Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. [¶] (5) To surrender himself or herself in execution of the judgment after appeal. [¶] However, the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligations under the bond if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment.”
“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.” (American Contractors, supra, 33 Cal.4th at p. 658.)
However, as the California Supreme Court noted in Indiana Lumbermens, “[u]nder section 1305, a court appearance or return to custody in the county where the case was filed is treated differently from a return to custody outside the county.” (Indiana Lumbermens, supra, 49 Cal.4th at p. 305.) Section 1305, subdivision (c)(1) provides that if the defendant appears or is returned to custody in the county where the case was filed during the 180-day period, “ ‘the court shall, on its own motion at the time the defendant first appears in court on the case in which the forfeiture was entered, direct the order of forfeiture to be vacated and the bond exonerated.’ ” (Indiana Lumbermens, supra, 49 Cal.4th at p. 305.) “[I]f it fails to do so exoneration is accomplished by operation of law. (§ 1305, subd. (c)(2).)” (Ibid.)
“On the other hand, when the defendant is returned to custody outside the county within the 180-day period, the statute provides only that ‘the court shall vacate the forfeiture and exonerate the bail.’ (§1305, subd. (c)(3).) In this circumstance, the court is not directed to act on its own motion, and there is no provision for immediate exoneration if the court does not act.” (Indiana Lumbermens, supra, 49 Cal.4th at p. 305, fn. Omitted.)
In Indiana Lumbermens, the California Supreme Court addressed the conflict between the decisions in Ranger, supra, 141 Cal.App.4th 867 and Lexington, supra, 158 Cal.App.4th 370 regarding the issue of “when a motion for relief from forfeiture of bail must be made if an absconding defendant is arrested or surrendered in a county other than the jurisdiction where the case is pending.” (Indiana Lumbermens, supra, 49 Cal.4th at p. 304.) In Ranger, Division Six of the Second District Court of Appeal ruled that where the defendant is apprehended in a different county, the surety is required to file a motion to exonerate the bond but the 180-day time limit does not apply. In Lexington, the Third District Court of Appeal ruled to the contrary that, while section 1305, subdivision (c)(3) does not expressly require a motion to vacate the forfeiture and exonerate the bond, other provisions of the statutory scheme “ ‘strongly suggest that the Legislature intended that all motions to vacate the forfeiture and exonerate a bond under section 1305 be filed within the statutory period.’ [Citation.]” (Indiana Lumbermens, supra, 49 Cal.4th at p. 307.)
The California Supreme Court determined that “[the] legislative history confirms the Lexington court’s interpretation of the statutory scheme. The evolution of the statute makes it plain that the provisions of section 1305(i) govern motions for relief under section 1305(c)(3).” (Indiana Lumbermens, supra, 49 Cal.4th at p. 312.) The Supreme Court therefore disapproved Ranger and concluded that “[t]he surety’s contractual obligation on its bond is the same whether the defendant eventually returns to custody in the county where bail was granted, or elsewhere. The statutory 180-day period is also the same, and the Legislature has reasonably required that when the defendant is returned to custody outside the county, it is incumbent on the surety to bring a motion for relief from forfeiture. The deadlines and procedures for seeking relief have been tailored to accommodate the interests of the surety, which appropriately bears the burden of compliance with the statutory requirements. [Citation.]” (Id. at p. 313.)
Section 1305, subdivision (i) provides, “A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. The court may extend the 30-day period upon a showing of good cause. The motion may be made by the surety insurer, the bail agent, the surety, or the depositor of money or property, any of whom may appear in person or through an attorney. The court, in its discretion, may require that the moving party provide 10 days prior notice to the applicable prosecuting agency, as a condition precedent to granting the motion.”
In its reply brief, the Surety concedes that Indiana Lumbermens rejected the argument made in its opening brief that where the defendant is arrested outside the county where the case is pending, section 1305, subdivision (c)(3) does not require the surety to file a motion to vacate the forfeiture with the statutory 180-day period. However, the Surety maintains that the ruling in Indiana Lumbermens is not dispositive because the 180-day time limit for filing a motion to vacate the forfeiture does not apply where, as here, the court clerk misleads the bail agent into not filing the motion. We therefore turn to the Surety’s alternate contention on appeal that the trial court should be equitably estopped from entering summary judgment.
B. Equitable Estoppel
We understand the Surety to make the same argument on appeal, although not explicitly stated, that it made below in its supplemental points and authorities: under the doctrine of equitable estoppel, the trial court was estopped from entering summary judgment because the court clerk had misinformed the Surety’s agent that an exoneration notice would be mailed after the agent presented surrender documents indicating that Narez had been arrested and was in custody in Santa Cruz County and paid a $50 surrender fee, and for that reason the Surety did not file a timely motion to vacate the forfeiture. The Surety explains, “While there is a time limit for filing a motion, that limit must bend when the clerk misleads the bail agent into not filing it. Equity and justice demand that, in the circumstances here, the time limit be foregone.”
Although the trial court’s order denying the motion to set aside the summary judgment and exonerate the bond is silent as to the Surety’s equitable estoppel claim, it is a fundamental rule of appellate review that an “ ‘order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, on appeal the burden is on the Surety to show that the trial court’s implicit rejection of the Surety’s equitable estoppel claim was erroneous.
To support its claim, the Surety relies on the decisions in County of Orange v. Allied Fidelity Ins. Co. (1984) 161 Cal.App.3d 510 (County of Orange) and County of Los Angeles v. Resolute Ins. Co. (1972) 22 Cal.App.3d 961 (County of Los Angeles). We agree with the People that the Surety’s reliance on these two decisions is misplaced since neither decision addresses an issue of equitable estoppel.
In County of Orange, the defendant’s sentencing hearing was continued to a later date, but the trial court nevertheless forfeited her bail when she did not appear on the original hearing date. After the defendant appeared on the correct hearing date, the trial court granted the Surety’s request to exonerate the bond. Some months later, a court clerk confirmed, during a telephone call with the surety’s employee, that the bail had been exonerated, and for that reason the surety did not file a motion to set aside the forfeiture. When summary judgment was entered, the surety filed a motion to set aside the summary judgment and exonerate the bond. (County of Orange, supra, 161 Cal.App.3d at pp. 511-512.) The trial court’s denial of the motion was reversed by the appellate court, which agreed with the surety that the trial court had necessarily set aside the forfeiture when it exonerated the bond at the time of the continued sentencing hearing. (Id. at p. 512.) The appellate court expressly did not reach the Surety’s argument that the county should be estopped due to the court clerk misleading the surety as to the status of the bond. (Ibid.)
The decision in County of Los Angeles is similarly unhelpful to the Surety. County of Los Angeles involved a motion to vacate the summary judgment on the ground that a notice of forfeiture had not been timely mailed to the surety’s principal California office, as required by section 1305. (County of Los Angeles, supra, 22 Cal.App.3d at p. 963.) The appellate court reversed the trial court’s denial of the motion, ruling that the lack of proper notice rendered the judgment void. (Id. at pp. 963-964.) No estoppel issue was raised in County of Los Angeles.
We also determine that the trial court could properly find that the Surety had not satisfied the elements of equitable estoppel in this case. “A valid claim for equitable estoppel requires: (a) a representation or concealment of material facts; (b) made with knowledge, actual or virtual, of the facts; (c) to a party ignorant, actually and permissibly, of the truth; (d) with the intention, actual or virtual, that the ignorant party act on it; and (e) that party was induced to act on it. [Citation.] There can be no estoppel if one of these elements is missing.” (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 584; People v. Bankers Ins. Co., supra, 181 Cal.App.4th at p. 8.) Moreover, “[r]eliance by the party asserting the estoppel on the conduct of the party to be estopped must have been reasonable under the circumstances.” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 655.)
The Surety has not shown that, under the circumstances of this case, it reasonably relied upon the court clerk’s representation that a notice of exoneration would be mailed when it failed to file a timely motion to vacate the forfeiture. The relevant circumstances are as follows.
The notice of forfeiture expressly advised the Surety that “Your contractual obligation to pay this bond will become absolute on the 185th day following the date of the forfeiture unless the Court orders the forfeiture set aside and the bond reinstated.” Since the notice of forfeiture was mailed on April 18, 2008, the 185-day period expired on October 20, 2008. Melendez first presented the surrender documents concerning Narez’s arrest in Santa Cruz County on June 11, 2008, with the purpose of obtaining exoneration of the bond. The record reflects that the court clerk did not make any representations regarding exoneration on June 11, 2008, and neither the Surety nor its agent made any inquiries regarding the status of Narez’s bond until more than three months later, in September 2008.
On September 16, 2008, Melendez presented an in-custody letter to the clerk of the trial court, along with the previously presented surrender documents, and again requested an exoneration of the bail bond due to Narez’s custody in Santa Cruz County. According to Melendez, he paid a $50 surrender fee, received a receipt for $50 entitled “Bail Reinstmt/Reassumption, ” and expected that he would receive a notice of exoneration in the mail, “as [he] was told by the clerk.” At that point, more than one month remained before the 185-day period to file a motion to vacate the forfeiture expired on October 20, 2008.
Melendez did not receive a notice of exoneration after his September 16, 2008, conversation with the court clerk. There is nothing in the record to indicate that either Melendez or the Surety took any steps during the month remaining before the expiration of the 185-day period to determine whether the trial court had ordered the forfeiture set aside and the bond exonerated. Had the Surety or its agent timely inquired between September 16, 2008, and October 20, 2008, as to the status of the bond, a motion to vacate the forfeiture could have been filed before the expiration of the 185-day period. Consequently, we find that the Surety has not shown that it reasonably relied on the court clerk’s representation that a notice of exoneration would be mailed when, after no notice of exoneration was received, the Surety failed to timely move to set aside the forfeiture. We emphasize that, as the California Supreme Court stated in Indiana Lumbermens, the surety “appropriately bears the burden of compliance with the statutory requirements. [Citation.]” (Indiana Lumbermens, supra, 49 Cal.4th at p. 313.) For these reasons, we find no merit in the Surety’s equitable estoppel claim.
The Surety also argues that its position that a court clerk’s misrepresentations are a proper basis for relieving a surety from the time limits for filing a motion to vacate forfeiture is supported by the decisions in People v. Meyers (1932) 215 Cal. 115 (Meyers) and People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791 (Far West). We disagree.
In Meyers, the California Supreme Court determined that a bond was properly exonerated because it was impossible for the surety to surrender a defendant where to do so would cause the surety to act in defiance of a court’s order and thereby risk contempt charges. (Meyers, supra, 215 Cal. at p. 119.) The court ruled that “[t]he state, acting through its officers in one county, cannot hold defendants liable for failure to perform, when such performance was delayed, hindered and finally made, for all practical purposes, impossible, by the state acting through its officers in another county.” (Id. at pp. 119-120.) This rule does not apply in the present case because, as we have discussed, it was the Surety’s failure to timely inquire as to the status of the bond and file a motion to vacate the forfeiture within the 185-day period, and not the representations of the court clerk, that resulted in the entry of summary judgment. The record here indicates that nothing that was said or done by the court clerk rendered the Surety’s performance of its obligations impossible.
Far West also does not support the Surety’s position. In that case, the Alameda County Superior Court forfeited the bail bond after the defendant failed to appear at a hearing. (Far West, supra, 93 Cal.App.4th at p. 793.) The surety located the defendant in Georgia and the Oakland Police Department confirmed that the defendant’s arrest warrant was still active. The surety’s agent then contacted the Georgia authorities, who arrested the defendant on the California warrant. However, when the Georgia authorities asked the Oakland Police Department whether the defendant would be extradited, they were told to release Oakland’s hold on the defendant, and the defendant was then released from custody in Georgia. The trial court denied the surety’s subsequent motion to vacate the bond forfeiture and exonerate the bond. (Id. at p. 794.) The appellate court reversed the order, ruling that “under the circumstances shown here-a California fugitive admitted to bail, apprehended and held in custody in another state, is released as a result of errors committed solely by officials of the demanding county government and the surety has done all that is required of it under the terms of the bond-bail is exonerated. [Citations.]” (Id. at p. 798.)
The facts in the present case are clearly distinguishable from those of Far West. Here, the Surety did not do all that was required of it under the statutory scheme for bail bonds, since it was the Surety’s responsibility to timely inquire as to the status of the bond and to file a motion to vacate the forfeiture within the statutory 185-day period. Like the surety in Indiana Lumbermens, the Surety “had a more than adequate opportunity to obtain relief from forfeiture within the statutory period.” (Indiana Lumbermens, supra, 49 Cal.4th at p. 313.) We therefore conclude that the trial court did not abuse its discretion in denying the Surety’s motion for an order setting aside the summary judgment and exonerating the bail bond.
IV. DISPOSITION
The May 12, 2009, order denying the motion of appellant American Contractors Indemnity Company for an order setting aside the summary judgment and exonerating the bail bond is affirmed.
WE CONCUR: MIHARA, J.duffy, J.