Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County Nos. SJ3175 & TA089698, John J. Cheroske, Judge.
Robert W. Hicks & Associates, Robert W. Hicks and Kenneth R. Wright for Defendant and Appellant.
Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel, and Joanne K. Nielsen, Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant Lincoln General Insurance Company (Lincoln or the surety) appeals a judgment following the entry of summary judgment on a forfeited bail bond.
In seeking an extension of time for a hearing on its motion to extend time on bail forfeiture, the surety falsely represented to the court that the matter was not heard on the date originally set for hearing because “the Court was unable to locate the file in this case....” In fact, as the surety later admitted, the file was not misplaced – the file was in the courtroom to which the case had been assigned.
Because the surety gave a false reason for seeking to reschedule the matter, the trial court acted within its discretion in disallowing the filing of the “notice of continued hearing date of surety’s motion to extend time on bail forfeiture.” Therefore, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Lincoln posted a bail bond in the amount of $30,000 to secure the release of criminal defendant Shondell Randle (Randle) from custody. On September 26, 2007, Randle failed to appear and the bond was ordered forfeited. Notice of forfeiture was mailed September 28, 2007.
On March 19, 2008, with the imminent expiration of the 185-day period within which a surety may seek relief from forfeiture, Lincoln filed a motion to extend time on bail forfeiture (Pen Code, § 1305.4), seeking an order extending the appearance period an additional 180 days. The motion, which was supported by the declaration of an investigator who had been retained to apprehend Randle, asserted good cause existed for an extension of time in that the surety had been diligently pursuing efforts to locate Randle and bring him before the court.
Penal Code section 1305.4 authorizes the court, upon a showing of good cause, to extend the 180-day appearance provided in section 1305, for an additional 180 days.
On April 11, 2008, the motion to extend time came on for hearing. The trial court reluctantly extended the time by 90 days, stating: “I have read the motion. I have read the declaration of the investigator as to what he’s done. I’ll be honest with you he hasn’t done a lot. All he does is go back to the same two houses and leave his business card. And I’m going to go ahead and give you 90 days more. [¶] That is going to be it. [¶] So I’ll sign your order for 90 days.” Thus, the appearance period on the bond was extended to July 10, 2008.
On July 3, 2008, one week before the expiration of the appearance period, the surety filed another motion to extend time on bail forfeiture. The hearing on the motion was set for July 21, 2008, at 8:30 a.m. in Department 12. Although Randle’s case, including the bail proceedings, had been heard in Department D since August 6, 2007, the July 3, 2008 motion was set for hearing in Department 12, rather than Department D.
The July 3, 2008 motion to extend the appearance period, to be heard July 21, 2008, was filed timely. 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. (§ 1305.4, citing § 1305, subd. (i).
Because the surety failed to direct its motion to Department D, on the scheduled hearing date of July 21, 2008, no hearing was held in this matter in Department D or elsewhere.
On July 24, 2008, the surety sought to file a motion to “continue” the hearing on its motion to extend time on bail forfeiture from July 21, 2008, in Department 12, to August 11, 2008, in Department D. The surety’s papers explained: “The reason for this request is because at the time of the hearing on July 21, 2008, the Court was unable to locate the file in this case and ordered that the hearing be continued.” (Italics added.)
On the morning of July 24, 2008, the matter was heard in Department D as an add-on to its calendar. The district attorney’s office was not served until 12:40 p.m. that afternoon and did not appear at the hearing. The surety’s counsel was present in court. When the matter was called for hearing, the trial court rejected the surety’s papers and they were not filed. The trial court ruled as follows:
“This is a case that was last in court on April 11th of this year [wherein] a bonding company’s motion to extend the bail forfeiture pursuant to section 1305.4 was granted. And that was granted to the date of July 10th, ’08. [July 10, 2008] came and went. [¶] There was no further extension. [¶] Today there’s a messenger here with a document attempting to file this which says notice of continued hearing date of surety’s motion to extend time on the bail forfeiture pursuant to 1305.4. [¶] It says that the original hearing date was July 21st, ’08. It further says that the reason that this request is being made is because at the time of the hearing on July 21st, 2008, the court was unable to locate the file and ordered that the hearing be continued. [¶] Well, that’s an absolute lie. There was no hearing set on the 21st day of July. There was nothing done. There was no indication of any file disappearance. [¶] This case – these documents are rejected. I’m not going to allow them. Don’t misrepresent things again, whoever did that.” (Italics added.)
On July 25, 2008, the trial court entered summary judgment on the forfeited bond. That same day, the clerk served Lincoln with notice of entry of judgment and demand for payment. When the bond was not paid within 30 days, the trial court ordered Lincoln to show cause why its ability to act as surety on bail should not be suspended due to its failure to pay the judgment.
We note 303 days elapsed between the date of the bail forfeiture (Sept. 26, 2007) and the entry of summary judgment on the forfeited bond (July 25, 2008).
On September 22, 2008, Lincoln filed a response to the order to show cause, which was supported by the declaration of Attorney Stefanie Steinberg, who stated in pertinent part: “On July 3, 2008, the Surety... filed a motion to extend the appearance period in this case, which was calendared to be heard on July 21, 2008. The Surety’s motion was originally set to be heard in Department 12. However, on July 21, 2008, I was advised by the Clerk of the Court that the motion would be heard in Department D. [¶]... Upon my arrival in Department D, I spoke with the Clerk of the Court in Department D, Mike. Mike stated the case was on calendar and the file was in the courtroom. However, Mike advised that the Surety’s motion to extend was not in the file. Mike was unable to locate a copy of the motion and stated that the motion had been ‘misplaced.’ Mike advised that the hearing on the Surety’s motion should be re-noticed and/or reset.” (Italics added.)
As noted, previously, on July 24, 2008, in seeking to “continue” the hearing on the motion to extend time, the surety’s counsel represented to the court that “at the time of the hearing on July 21, 2008, the Court was unable to locate the file in this case and ordered that the hearing be continued.” (Italics added.) On July 24, 2008, the trial court stated “that’s an absolute lie.... There was no indication of any file disappearance.”
On September 23, 2008, one day after filing its response to the order to show cause, Lincoln paid the judgment in full. The order to show cause was placed off calendar.
On September 23, 2008, Lincoln filed a timely notice of appeal from the judgment.
CONTENTIONS
Lincoln contends the trial court abused its discretion in rejecting the amended notice without a hearing and thereby refusing to consider a timely extension motion, and that the clerk’s misplacing a motion for an extension is not good cause for denying the extension request.
DISCUSSION
1. Trial court acted within its discretion in refusing to entertain Lincoln’s July 24, 2008 “notice of continued hearing”, which notice requested a continuance on the false ground that on July 21, 2008 the case file had been misplaced.
On April 11, 2008, the trial court extended the appearance period on the bond to July 10, 2008.
On July 3, 2008, one week before the expiration of the appearance period, the surety filed another motion to extend time on bail forfeiture, to be heard July 21, 2008. The motion was filed timely. (See fn. 2, ante.)
The problem is that the surety set the motion for hearing in Department 12, not Department D, the department which had been handling the case. As a consequence, on July 21, 2008, the matter was not heard in Department D.
On the morning of July 24, 2008, three days after the scheduled hearing date, surety sought to file a request to “continue” the motion to extend time on bail forfeiture from July 21, 2008, Department 12, to August 11, 2008, Department D. The surety’s papers explained: “The reason for this request is because at the time of the hearing on July 21, 2008, the Court was unable to locate the file in this case and ordered that the hearing be continued.” (Italics added.)
Thus, rather than acknowledging it had erroneously set the July 21, 2008 hearing in Department 12, rather than Department D, the surety sought to place blame with the superior court for having misplaced the file.
On July 24, 2008, when the matter was called for hearing, the trial court rejected the surety’s papers and they were not filed. With respect to the surety’s papers, the trial court stated: “It says that the original hearing date was July 21st, ’08. It further says that the reason that this request is being made is because at the time of the hearing on July 21st, 2008, the court was unable to locate the file and ordered that the hearing be continued. [¶] Well, that’s an absolute lie. There was no hearing set on the 21st day of July. There was nothing done. There was no indication of any file disappearance. This case – these documents are rejected. I’m not going to allow them. Don’t misrepresent things again, whoever did that.” (Italics added.)
There is substantial evidentiary support for the trial court’s determination that the July 24, 2008 request to “continue” the matter had falsely asserted that on July 21, 2008 the court “was unable to locate the file in this case....” We note the Steinberg declaration, subsequently filed as part of the surety’s response to the order to show cause, stated that on July 21, 2008, the clerk in Department D stated “the file was in the courtroom” and that the clerk simply was “unable to locate a copy of the motion....” Thus, by the surety’s later admission, the court file was not misplaced – only the surety’s motion was missing, by virtue of having been filed in the wrong department.
Because the July 24, 2008 request to “continue” the July 21, 2008 hearing gave a false reason for seeking to reschedule the matter, the trial court acted within its discretion in refusing to entertain the surety’s request to continue the hearing date on the surety’s motion to extend time on bail forfeiture.
On July 25, 2008, with the appearance period already having expired, and with no pending motion to extend the appearance period pursuant to section 1305.4, the trial court properly entered summary judgment on the forfeited bond.
DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal.
We concur: KITCHING, J., ALDRICH, J.
Unless otherwise specified, all further statutory references are to the Penal Code.
The Steinberg declaration contradicted the surety’s earlier motion. According to the Steinberg declaration, on July 21, 2008 the case file was not missing – the file was in Department D. However, the motion to extend time, which motion had been filed in Department 12, was not in the file.