Opinion
G051685
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Defendant and Appellant.
John M. Rorabaugh and E. Alan Nunez for Defendant and Appellant. Leon J. Page, County Counsel, and Suzanne E. Shoai, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11NF3604) OPINION Appeal from an order of the Superior Court of Orange County, Scott A. Steiner, Judge. Affirmed. John M. Rorabaugh and E. Alan Nunez for Defendant and Appellant. Leon J. Page, County Counsel, and Suzanne E. Shoai, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Indiana Lumbermens Mutual Insurance Company (the surety) posted a bail bond guaranteeing the appearance of a criminal defendant at his arraignment. The defendant did not appear, and the bond was forfeited. Before the expiration of the 185-day period within which the defendant could be surrendered, the surety sought an extension of time. The trial court gave the surety an extension of time of 180 days after the hearing date.
On the 180th day, the surety filed another motion to extend time. Because the surety had already obtained the full amount of time to surrender the defendant, the motion to extend was ineffective to halt the statutory summary judgment procedures. Therefore, the trial court properly entered the summary judgment requested by the County of Orange (the County). The surety appeals from the court's denial of the surety's later motion to vacate the summary judgment; we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The defendant, Charles Edward Blackmon, was charged with burglary, a felony. The surety, through its bail agent, Montana Bail Bonds, Inc., posted a bail bond in the amount of $250,000 to secure Blackmon's release. Blackmon was ordered to appear in court on September 18, 2013, at 8:30 a.m. When the case was called on September 18, neither Blackmon nor his counsel appeared. The trial court ordered the bail bond forfeited. Notice of the forfeiture was mailed to the surety and the bail agent on September 19.
On March 21, 2014, the surety filed and served a timely motion to extend time to surrender Blackmon or move to set aside the forfeiture, pursuant to Penal Code section 1305.4. (All further statutory references are to the Penal Code.) The County did not oppose the motion. On April 16, the trial court granted the motion and extended the forfeiture period for 180 days from the date of the order—the full time authorized by section 1305.4—until October 16, 2014.
On October 16, 2014, the surety filed another motion to extend time pursuant to section 1305.4. The hearing on the motion was twice continued because the motion had not been served on the County. When the motion came on for hearing on December 12, the court denied it.
In the meantime, the County submitted a proposed summary judgment order to the trial court, based on the fact the fully extended forfeiture period had expired without the forfeiture being set aside. On October 23, 2014, the court signed the summary judgment order. The surety then filed a motion to set aside the summary judgment, vacate the forfeiture, and exonerate bail on the ground that the court acted outside its jurisdiction in entering the summary judgment order. The trial court denied the motion, and this appeal followed.
DISCUSSION
We review an order denying a motion to set aside summary judgment and exonerate a bail bond for abuse of direction. (People v. Western Ins. Co. (2013) 213 Cal.App.4th 316, 321; People v. Lexington National Ins. Corp. (2010) 181 Cal.App.4th 1485, 1489.)
"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.] 'In matters of this kind there should be no element of revenue to the state nor punishment of the surety.' [Citation.] 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.' [Citation.] Thus, when there is a breach of this contract, the bond should be enforced. [Citation.]" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657-658.)
"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., supra, 33 Cal.4th at p. 658, italics added, fns. omitted.)
A summary judgment entered before the expiration of the 185-day appearance period is voidable, and may be attacked on appeal, or by motion. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657.) In this case, the summary judgment was entered after the expiration of the 185-day appearance period plus a further 180 days following the surety's first motion to extend time (a process that is discussed in detail, post). The surety contends, however, that the summary judgment was premature and voidable because it was entered after the surety filed a second motion to extend time. The second motion to extend time was facially invalid, and ineffective to delay entry of the summary judgment.
Cases have regularly held that the maximum amount of time a surety may have to vacate the forfeiture and exonerate the bond is 365 days—the original 185-day appearance period, plus up to 180 days if the court grants a motion to extend the time under section 1305.4. (County of Los Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th 944, 951 [surety "could only obtain a maximum extension of 180 days"; surety could file second motion to extend time, but that motion could only seek nine additional days, as 171 days had passed from the court's order on the first motion to extend]; People v. Accredited Surety & Casualty Co., Inc. (2013) 220 Cal.App.4th 1137, 1149 (Accredited Surety) [trial court erred in purporting to extend the appearance period for more than 180 days]; People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 1377, 1380-1381, 1384-1386 (Bankers) [surety filed three motions to extend the appearance period; the court granted extensions of three months, one and one-half months, and six months; the court's later summary judgment was entered too late, but surety was estopped from complaining because its improper request for an extension of time not permitted by statute caused the court's error]; People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193, 1198 [rejecting contention that "the language of section 1305.4 should be read to permit the trial court to grant an unlimited series of extensions as long as good cause is shown and no single extension is longer than 180 days"].)
In this case, the surety received the benefit of the full 185-day appearance period, as well as the full 180-day extension. Indeed, the surety received more than a 180-day extension because the 180 days ran from the date of the trial court's order on the motion to extend time, which was 23 days after the 185th day of the appearance period. Nothing in section 1305 or section 1305.4 supports the surety's argument that it was entitled to another extension of time. The cases cited, ante, specifically reject that argument. Therefore, the second motion to extend time was facially invalid and was ineffective to extend the 90-day period for entering summary judgment, and the trial court did not err in entering summary judgment.
The 185th day would have been March 24, 2014. The motion to extend time was filed on March 21, and granted on April 16. The order granting the motion extended the appearance period for 180 days from that date—until October 16. --------
In People v. United Sates Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1008, the court declined to follow Accredited Surety and Bankers on the ground those cases improperly held that the 180-day extension of the appearance period was calculated from the date the appearance period ended, rather than the date on which the trial court ruled on a timely motion to extend the appearance period. Accredited Surety and Bankers followed People v. Taylor Billingslea Bail Bonds, which was decided before the Legislature amended the language of the relevant statute. In this respect, Accredited Surety and Bankers are factually distinguishable. In this case, the 180-day extension was calculated based on the date of the court's order (April 16, 2014) rather than the day on which the original 185 days ended (March 24, 2014).
The surety also argues the trial court was without jurisdiction to declare a bail forfeiture in the first place because there was no order commanding Blackmon's appearance on September 19, 2013. The surety is correct that a court may not declare a bail forfeiture unless there was "a specific court order commanding [the defendant's] appearance at a date and time certain." (People v. Classified Ins. Corp. (1985) 164 Cal.App.3d 341, 344.) In this case, the appellate record reflects that Blackmon's arraignment was scheduled in the court's minutes for September 18, 2013, at 8:30 a.m. The actual bail bond reflected the same date on which Blackmon was ordered to appear, negating any claim that Blackmon did not have notice of the entry in the trial court's minutes.
People v. National Auto. & Cas. Ins. Co. (1977) 77 Cal.App.3d Supp. 7, on which the surety relies, is inapposite. In that case, the appearance date on the bond was different from the date in the court docket. (Id. at pp. Supp. 8-9.) Under those circumstances, the presumption was that the date on the bond reflected only an agreement between the bond company and the defendant, while the date on the docket reflected the court's order. (Ibid.) In this case, there is no inconsistency.
The recently decided case of People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35 (Financial) does not change the outcome here. In that case, the bond surety filed a timely motion to extend the 185-day appearance period. (Id. at p. 40.) The trial court granted the motion, but extended the appearance period for less than the additional 180 days permissible by statute. (Ibid.) On the same day the extended appearance period ended, the bond surety filed a second motion to extend time. (Ibid.) The trial court denied the second motion to extend, and the Court of Appeal affirmed. (Id. at p. 41.)
The California Supreme Court held that the trial court incorrectly determined it did not have the authority to grant a further extension because more than 365 days had passed before the hearing on the second motion to extend. (Financial, supra, 2 Cal.5th at pp. 43-46.) The court, relying on the authorities cited ante, reiterated that the trial court has the authority to grant an extension of the appearance period of 180 days from its order, not merely from the end of the initial appearance period. (Id. at p. 43.) Financial does not affect the analysis or disposition of this case because, here, the trial court extended the appearance period for the full 180 days from its order on the first motion to extend time. The court in Financial, supra, 2 Cal.5th at pages 46-50, nevertheless affirmed the Court of Appeal, holding that the trial court did not abuse its discretion in denying the second motion to extend time, based on its consideration of the lack of a reasonable likelihood of success in returning the fugitive defendant to court. This issue is not before us in this case.
DISPOSITION
The order is affirmed. Respondent to recover costs on appeal.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.