Opinion
G055163 G055710
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. THE NORTH RIVER INSURANCE COMPANY et al., Defendants and Appellants.
Jefferson T. Stamp, for Defendants and Appellants. Leon J. Page, County Counsel, Suzanne E. Shom and D. Kevin Dunn, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15HF0797, 30-2017-00930205) OPINION Appeal from judgments of the Superior Court of Orange County, Gregory W. Jones, Judge. Judgments affirmed. Jefferson T. Stamp, for Defendants and Appellants. Leon J. Page, County Counsel, Suzanne E. Shom and D. Kevin Dunn, Deputy County Counsel, for Plaintiff and Respondent.
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North River Insurance Company and Bad Boys Bail Bonds (collectively North River) posted three bail bonds for a defendant in three criminal cases. Defendant failed to appear as required. The court forfeited the bonds and entered summary judgments against North River.
North River appeals, asserting that the trial court's summary judgment notices were defective under Penal Code section 1308. North River also asserts that county counsel's demands for payment were premature under section 1306.
All further undesignated statutory references are to the Penal Code.
We find no prejudicial errors and affirm the judgments.
I
FACTS AND PROCEDURAL BACKGROUND
On August 24, 2015, North River posted three bail bonds totaling $80,000 to secure the release of defendant Shad Michael Ashman in three cases.
On December 7, 2015, defendant failed to appear. The trial court declared a forfeiture of the bonds (triggering a 180-day "appearance period"), and gave notice to North River. In June 2016, North River filed a motion in each case to extend the appearance period an additional 180 days. The court granted the motions, extending the appearance periods until late December 2016. Defendant never appeared.
On March 2, 2017, the trial court entered an order of summary judgment as to each bond. Four days later, the court mailed certified copies of the entries of summary judgment to North River. Eleven days later, county counsel filed and served North River with a "NOTICE OF ENTRY OF SUMMARY JUDGMENT UPON FORFEITURE OF BAIL BOND AND DEMAND FOR PAYMENT THEREOF" as to each bond.
On March 29, 2017, North River filed a motion in each case to set aside summary judgment, vacate the forfeiture, and exonerate the bond. The trial court held a hearing and denied the motions. North River filed an appeal as to each case, which we agreed to consolidate.
II
DISCUSSION
A "'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. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) Bond forfeiture issues are committed to the discretion of the trial court and can be reversed on appeal only upon a showing of an abuse of discretion. (People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1383.)
If a defendant fails to appear, the trial court must declare forfeiture of the bond. (People v. Tingcungco (2015) 237 Cal.App.4th 249, 253.) The court must give notice of the forfeiture within 30 days to the surety; the court's notice obligations regarding forfeiture are jurisdictional in nature. (People v. Bankers Ins. Co. (2009) 171 Cal.App.4th 1529, 1532.) That is, if notice of the forfeiture is not timely sent to the surety at its address on the bond, the surety is "released of all obligations" under the bond. (§ 1305, subd. (b)(3)(A).) A forfeiture triggers a 180-day "appearance period," which can be extended an additional 180 days for good cause. (§ 1305.4.)
Here, North River secured defendant's release from custody by posting three bail bonds. After defendant failed to appear, the trial court declared forfeiture of each bond and gave notice to North River. The appearance period was extended, but defendant never appeared in court. North River does not challenge the forfeitures or the court's notices of the forfeitures. Rather, North River challenges the court's later notices of summary judgment and county counsel's demands for payment.
The Trial Court's Summary Judgment Notices
North River argues that the trial court's summary judgment notices were defective under section 1308. We disagree.
If a defendant fails to appear within the appearance period, the trial court must enter summary judgment against the surety for the amount of the bond. (§ 1306, subd. (a).) The court must enter the order for summary judgment "within 90 days after the date upon which it may first be entered." (§ 1306, subd. (c).) If summary judgment is not timely entered, "the bail is exonerated." (§ 1306, subd. (c).)
Once summary judgment is entered: "The clerk . . . shall serve notice of the entry of judgment upon the judgment debtor within five days after the date of the entry of the summary judgment." (§ 1308, subd. (b).) However, unlike forfeiture notices, the court's five-day notice obligations concerning summary judgment are "ministerial" in nature rather than jurisdictional. (See People v. National Auto. & Casualty Co. (1966) 242 Cal.App.2d 150, 155 (National Auto).) This is because summary judgment is self-executing; that is, within the bail contract the surety has already consented to summary judgment for the amount of the bond. (See § 1278 [each bond states that: "If the forfeiture of this bond be ordered by the court, judgment may be summarily made and entered forthwith . . . as provided by Sections 1305 and 1306"].)
Here, the appearance period for each of the bonds expired on December 23, 2016. The trial court entered summary judgment for each bond on March 2, 2017, which was within 90 days of the expiration of the appearance period, as required under section 1306. On March 6, 2017, the court then gave notice of the entry of summary judgment to North River by mailing three documents entitled "SUMMARY JUDGMENT ON FORFEITED BAIL BOND." Each notice advised North River of defendant's failure to appear and the resulting summary judgments. The court served the notices of summary judgment within five days as required under section 1308, subdivision (b).
Thus, we find that the trial court did not abuse its discretion when it denied North River's motions to set aside the summary judgments, vacate the forfeitures, and exonerate the three bonds. Further, even if the summary judgment notices were somehow defective, the error would not have been "jurisdictional." That is, North River would not have been released of its obligations and would still have been subject to summary judgment under the bonds. (See National Auto, supra, 242 Cal.App.2d at p. 155.) Nevertheless, we shall address the merits of North River's arguments.
North River argues that the trial court's summary judgment notices were defective under section 1308 because "[t]he copies of the judgments did not include a certificate of mailing . . . ." But section 1308 does not require a certificate of mailing. Again, the statute simply states: "The clerk of the court in which the judgment is rendered shall serve notice of the entry of judgment upon the judgment debtor within five days after the date of the entry of the summary judgment." (§ 1308, subd. (b); compare People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 965 [a "certificate of mailing" is required for a notice of forfeiture].)
North River also argues that the trial court's notices of entry of summary judgment were defective under the California Rules of Court. North River cites rule 8.104, subdivision (a), for the proposition that "the clerk is required to serve 'a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, showing the date either was served.'" (Original boldfacing and italics omitted.) But rule 8.104 does not concern a trial court's summary judgment notice requirements under section 1308. The rule has to do with appellate procedures; specifically, rule 8.104 provides the time limits in which an appellant must generally file a notice of appeal.
All further references to rules are to the California Rules of Court. --------
The rule states: "Unless a statute or [different] rules . . . provide otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with [such] a document . . . ; or [¶] (C) 180 days after entry of judgment." (Rule 8.104(a)(1), italics added.)
Again, the trial court entered summary judgment against North River in three cases. Four days later, the clerk then served North River with three documents entitled "Summary Judgment on Forfeited Bail Bond." North River is correct that these notices did not strictly comply with appellate rule 8.104(a)(1)(A). That is, the notices were not entitled "'Notice of Entry' of judgment," nor did the notices include an endorsed copy of the judgment indicating the date they were served. But a court's noncompliance with rule 8.104 simply means that an appellant's time period in which to file a notice of appeal has not commenced. (See Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905 [documents mailed by the superior court clerk not in compliance rule 8.104(a)(1), "did not commence 60-day period for filing of a notice of appeal"].)
Here, there is no dispute regarding the timeliness of North River's notices of appeal. Thus, any omissions by the trial court under rule 8.104 were not prejudicial. (See Cal. Const., art. VI, § 13 ["No judgment shall be set aside . . . for any error . . . unless, . . . the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"].) Further, as county counsel correctly points out, North River received actual notice of the entries of summary judgments as to each of the three bonds. (See American Contractors Indemnity Co. v. County of Orange (2005) 130 Cal.App.4th 579, 584 [no basis to set aside summary judgment where surety received actual notice of forfeiture].)
County Counsel's Demands for Payment
North River argues that county counsel prematurely demanded payment of the summary judgments under section 1306. We agree that county counsel's payment demands were premature, but North River was not prejudiced.
County counsel has an obligation to "[d]emand immediate payment of the judgment within 30 days after the summary judgment becomes final." (§ 1306, subd. (e)(1), italics added.) Summary judgment becomes final 60 days after the clerk mails the notice of the entry of the summary judgment. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 659.) However, similar to the trial court's obligations concerning the notices of summary judgment, county counsel's obligations concerning demands for payment are also "ministerial" in nature and not jurisdictional. (National Auto, supra, 242 Cal.App.2d at p. 155 ["It is clear that the purpose of the demand and notice provisions [under sections 1308 and 1306] is to protect the county, and not to absolve the judgment debtor from liability. Like any debtor, [the surety] cannot complain if his creditor does not demand payment immediately when due"].)
Here, for each of the three bonds, the trial court mailed notice of the entry of summary judgment on March 6, 2017. County counsel demanded payment 20 days later, but the summary judgments did not become final until 60 days later. Thus, county counsel demanded payment prematurely. (See § 1306, subd. (e)(1) [county counsel is obligated to demand payment "within 30 days after the summary judgment becomes final," italics added].) But we cannot see how North River was conceivably prejudiced. In any event, county counsel's premature payment demands plainly did not relieve North River of its obligations under the bonds.
Finally, North River argues that county counsel cannot "step into the shoes of the clerk" and fulfill the trial court's summary judgment notice obligations under section 1308, subdivision (b). But having found that the court, in fact, fulfilled its own notice obligations, North River's arguments in this regard are moot.
III
DISPOSITION
The judgments are affirmed (case Nos. G055163 and G055710). The parties are to bear their own costs on appeal.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.