Opinion
G053022
09-20-2017
THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
Law Office of John Rorabaugh and John M. Rorabaugh for Defendant and Appellant. Leon J. Page, County Counsel and Carolyn M. Khouzam, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11HF3038) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Law Office of John Rorabaugh and John M. Rorabaugh for Defendant and Appellant. Leon J. Page, County Counsel and Carolyn M. Khouzam, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
The trial judge denied the bail surety's motion for additional time to catch the defendant under section 1305.4 of the Penal Code because of an absence of good cause. He was well within his discretion to do so. Accordingly we affirm the trial court's summary judgment for $100,000 against the surety.
All further statutory references are to the Penal Code.
II. BACKGROUND
Ahmad Khalifah Mabrok was arrested for carjacking and related crimes. He pled not guilty and was released on $100,000 bail. Financial Casualty & Surety Company (Financial) was the surety on the bail, posted in May 2012. Mabrok failed to show up for his trial scheduled on August 25, 2014, so the court ordered the bail bond forfeited. The notice of forfeiture was sent August 26, 2014.
Under section 1305, the notice of bail forfeiture starts the running of a 185-day period in which the surety can find and bring the defendant back to court without forfeiting the bail. (See People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456, 460-461 ["The surety has 185 days from the date the notice of forfeiture is mailed (180 days plus five days for service by mail) to obtain relief from the forfeiture on any of the grounds set forth in section 1305."].) There is no dispute in this case that the 185-day period, beginning August 26, 2015, gave Financial until February 27, 2016, to find Mabrok.
Moreover, under section 1305.4, a surety may obtain, if it shows "good cause," another 180 days in which to catch the defendant. (See People v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 548, 557 ["The 185-day appearance period may be extended for up to 180 days from the date of the order upon a showing of good cause (§ 1305.4)."].)
This is where things became a little complicated in the case at hand. Financial filed a motion on February 27, 2015 - the last day of the initial 185-day period - to obtain those extra 180 days, with the hearing set for March 27, 2015. The county did not oppose this motion, and in fact a deputy county counsel signed a stipulation prepared by Financial's counsel to that effect. The stipulation said: "Time will be extended 180 days to August 26, 2015." The trial court signed the stipulated order on March 27, 2015.
Subdivision (j) of section 1305 allows a motion for more time under section 1305.4 to be heard "within 30 days of the expiration of the 180-day period."
August 26, 2015, was indeed 180 days from February 27, 2015, the date the original 185-day period was due to run out. However, it was only 152 days from the date of the signing of the March 27, 2015 order. One hundred and eighty days from the March 27, 2015 extension would have given Financial until September 23, 2015 to find and bring in Mabrok. The difference between August 26 and September 23 is 28 days. On August 26, 2015, not having found Mabrok by August 26, 2015, Financial filed another extension request seeking those 28 days.
This second motion under section 1305.4 was scheduled for 30 days after August 26, 2015, i.e., for September 25, 2015 - two days after 180 days had expired from the signing of the March 27, 2015 order. However, at county counsel's behest (because the deputy county counsel had a conflict), the two sides stipulated, in an order filed September 22, 2015 - that is, prior to September 23 - to have the second motion heard on October 5, 2015.
Meanwhile, on September 25, 2015, the county filed opposition to any extension beyond 180 days from the original March 27, 2015 stipulated extension order, which, the county pointed out, had already run on Wednesday, September 23, 2015.
The trial court heard oral argument on October 5, 2015. Roughly, two issues were debated: Whether time had already run out and whether Financial had shown "good cause" for an extension. In the extension argument the parties disputed whether it is enough, to show "good cause" under section 1305.4, that the surety merely show due diligence in trying to find the defendant, or whether the surety must also show a reasonable likelihood of recapture. Taking the matter under submission, the trial court, on October 9, denied Financial's motion "due to lack of good cause" without specifying which model of good cause it was using. Summary judgment on the forfeiture was entered on October 27, 2015, from which judgment Financial timely appealed.
III. DISCUSSION
Financial's opening brief presents two issues, as ascertained by its respective headings and subheadings. (See Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656 ["the appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made; otherwise, the point will be forfeited"].) Those two issues are: (1) whether section 1305.4's "good cause" requirement entails a reasonable likelihood of recapture and (2) whether total possible time had already run by the October 5, 2015 hearing.
The opening brief was filed in mid-June 2016, and the county's respondent's brief filed early December 2016. The dates are significant because the first issue was decided after both the opening and respondent's briefs were filed, by the Supreme Court, in People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35 (Financial Casualty).
On the good cause issue the Financial Casualty court rejected the surety's position that due diligence is enough. The court held that a reasonable likelihood of success was also a "factor tending to show lack of good cause." (Financial Casualty, supra, 2 Cal.5th at pp. 47-48.) Financial Casualty rejected the due-diligence-is-enough paradigm in part because a need to show a likelihood of success provides an incentive for sureties to use their "best efforts" to find hiding defendants, rather than merely doing "just enough to appear diligent." (Id. at pp. 47-48.)
In the wake of Financial Casualty it appears safe to say that there are at least two factors that determine good cause under section 1305.4, the surety's due diligence and a reasonable likelihood of success of recapture. (See Financial Casualty, supra, 2 Cal.5th at p. 47.) The high court was careful not to phrase either "factor" as a formal prerequisite, and further reiterated that the decision whether to grant additional time under section 1305.4 is a matter of trial court discretion. (Id. at p. 87 ["A trial court's determination whether the surety has shown good cause to extend the appearance period is reviewed on a deferential abuse of discretion standard; we reverse only if the trial court's decision is unreasonable."].)
As shown by these two passages, both from page 47:
"If the surety or its bail agent cannot show it has so far been using reasonable efforts to locate the defendant and bring him or her to justice, the court has no obligation to grant the surety more time."
"We conclude that a court deciding a surety's motion to extend the appearance period may consider, as a factor tending to show lack of good cause, that the motion is unsupported by facts establishing a reasonable likelihood the extension will result in the defendant's apprehension."
The use of "factor" language in Financial Casualty further suggests the high court was not limiting the relevant factors to only due diligence and likelihood of recapture, though whatever those other factors might be, if any, remains to be developed.
Financial Casualty thus tore the legal stuffing out of the opening brief's first argument, which is largely a rendition of the due-diligence-is-enough position the court rejected. The reply brief is reduced to pleading that the case should be remanded for reevaluation by the trial court under the new standard enunciated by Financial Casualty which includes reasonable likelihood of recapture. The answer to that is simple: Given the emphasis that the Financial Casualty court put on reasonable likelihood of recpature, if a surety does not show such a likelihood, a trial court would hardly be outside the bounds of reasonableness to reject a section 1305.4 extension request, and Financial here did not show a reasonable likelihood of recapture.
The declaration of Financial's fugitive recovery agent filed in support of the August 26, 2015 motion to obtain those remaining 28 days recounted, among other things, that Mabrok might have appeared to be a homeless man at a train station in Hollywood or might have fled to Saudi Arabia. These "facts" negate any idea of recapture within the remaining time period: The investigator wasn't even sure what continent Mabrok was on.
Given the reasonableness of the trial court's decision on good cause, we need not, strictly speaking, address the problem of whether time had already been exhausted by the October 5, 2016 hearing. But we will merely note that, even making all possible assumptions in Financial's favor, the trial court, on October 5, at most might have given Financial one more day to find Mabrok. The calculation would go like this: a full 180 days from the March 27, 2015 extension order would mean the 180-day period of section 1305.4 was due to end on Wednesday, September 23, 2015. If we make the dubious assumption that the county was estopped, by virtue of the continuance, from claiming the deadline had already come and gone, there was still only the one day remaining in the 180-day period during which Mabrok might have been found and brought to court - the one day from September 22 to September 23. That one day only emphasizes the trial court's reasonableness in not finding good cause. It was highly unlikely Financial would catch Mabrok by October 6.
See People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025 [no equitable tolling because inconsistent with section 1305.4].
At oral argument counsel for Financial concentrated on what he viewed as denial of the 28 days the company would have had if the first extension order had been calculated from the date it was made. But the most we can distill from the facts in this case is the possibility of one extra day, not 28. And because our decision is self-sufficient on the absence of good cause for the later extension request, we need not discuss the recent case of County of Los Angeles v. Allegheny Casualty Co. (2017) 13 Cal.App.5th 580, which was the target of most of counsel's analysis during oral argument.
We should also point out that the main case relied on by Financial in this regard, County of Los Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th 944 (Williamsburg), is inapposite. The core of the legal analysis of the Williamsburg opinion was a demonstration that the surety had a statutory right to a hearing, which the trial court had summarily denied. (Williamsburg, supra, at pp. 952-954.) The difference between Williamsburg and the case before us is that it cannot be said here that Financial was denied any statutory right. In Williamsburg, the surety had a right to a hearing which the court peremptorily denied. Here, Financial did indeed receive a hearing - where good cause was explored - after 180 days had actually passed.
IV. DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.