Opinion
A143755
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. ZIG ZAG BAIL BOND AS AGENT FOR AMERICAN CONTRACTORS SURETY COMPANY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. CIV530836, NF417761A)
The County of San Mateo sought and was awarded summary judgment against American Contractors Surety Company for $100,000, the amount due on a bail bond forfeiture (Pen. Code, §§ 1305, 1306). Zig Zag Bail Bond, the bail agent for American Contractors Surety Company, now appeals on grounds that its motion to set aside and exonerate the bond should have been granted and that the summary judgment is defective on its face. We affirm.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
On June 2, 2013, appellant Zig Zag Bail Bond (Zig Zag), as agent for American Contractors Surety Company (American Contractors), posted a bail bond in the amount of $100,000 to ensure Roozbeh Enayati's (Enayati) appearance at his preliminary hearing on June 5, 2013. Enayati was charged in San Mateo County with felony violations of sections 470b (possessing a counterfeit driver's license) and 530.5 (acquisition and possession of the personal identification information of another person).
After posting bond, Lynn Simon (Simon), the bail licensee and owner of Zig Zag who posted the bond, inquired at the jail as to when Enayati would be released. To her surprise, Simon was informed that Enayati would not be released because he was subject to an immigration hold. She immediately tried to "revoke" the bond by filling out and submitting to jail authorities a form, sworn and dated June 2, 2013, entitled AFFIDAVIT of UNDERTAKING of BAIL For SURRENDER OF DEFENDANT Pursuant to Penal Code Section 1300(a)(1) (the "June 2 Affidavit"). On the June 2 Affidavit, Simon left blank the line indicating to whom Enayati had been surrendered, but added the handwritten note "I Just Posted Bail[.] I need to pull my bond[.] I didn't know there was an INS hold." Jail authorities refused to accept the form.
The next day, June 3, Simon went to the jail to check on Enayati's status, and even though she had been told he would not be released, found out he had already been transferred to the San Francisco immigration detention facility of the Department of Homeland Security (DHS). She telephoned DHS authorities, and was assured that they were "going to detain" Enayati and that they would transport him to his scheduled June 5 preliminary hearing.
Later on the morning of June 3, Simon went to the clerk's office of the San Mateo County Superior Court, continuing her effort to "revoke" the bond because "[h]ad I been informed . . . that a hold would be placed on [Enayati] I would of never bailed him [out]." There, "[t]he Clerk's office clerk indicated she could not locate the court file and could not revoke the bond and [told Simon] that [she] . . . would have to go to the next scheduled court date assigned to defendant's case to revoke the bond."
Simon did not attend the June 5 hearing, but Enayati appeared, with counsel, and was granted a continuance of his preliminary hearing to July 10, 2013. It is not clear from the record whether Enayati remained in custody as of June 5, but what is clear is that at some point prior to July 10 he was released. He absconded and did not appear for his continued preliminary hearing. On July 13, 2013, the court ordered bail forfeited, and on July 16 it gave notice of the forfeiture to Zig Zag.
The notice of forfeiture triggered a 180-day appearance period during which Zig Zag had the opportunity to find Enayati and return him to custody, thus entitling it to exoneration of the bond. (§ 1305, subd. (c).) Prior to the expiration of that period on January 8, 2014, Zig Zag, acting without a lawyer, moved for and was granted another 180 days, to July 16, 2014, to try to find Enayati. Although Zig Zag's investigator pursued an active investigation through the latter half of 2013 and the first half of 2014, by July 2014 Enayati remained at large. Still unrepresented by counsel, Zig Zag filed a motion to toll the appearance period on July 10, 2014. That motion was denied on September 10, 2014. A few days later, Zig Zag secured legal representation, and on September 23, 2014 filed a motion to set aside the forfeiture and exonerate the bond.
A declaration Simon submitted in support of the motion supplied more information about Enayati, apparently based on what she learned in the course of the investigation into his whereabouts. According to her, Enayati was obligated to register "as a Sex Offender which he never did. He is also a parolee committed to CDCR for PC 422 Terrorist Threats. History of Domestic Violence Battery, Threat to terrorize, Battery with serious bodily injury, driving without lic. Enayati Parole office states This Parolee is an absolute threat to the community . . . . Also South San Francisco wanted him for counterfeit Money." The record also includes a declaration from her investigator, Tim Hames, providing more details showing Enayati to have been a much more significant flight risk than might have been apparent from the charges against him in this case.
With Zig Zag's motion to set the bond aside still pending, on October 10, 2014, the court granted summary judgment in favor of the County of San Mateo and against the bond surety, American Contractors, for $100,000. A series of factual recital paragraphs precede the disposition paragraph in the summary judgment, as entered. In two of the recital paragraphs, the court states first that the forfeited bond was posted "for the appearance of ROOZBEH ENAYATI," but then at a later point states that the person who did not appear, resulting in forfeiture of the bond, was someone named "ALLAN RICHARD FINAU." In the final recital paragraph, stating that the appearance period had elapsed July 16, 2014, the court inserted in handwriting "and the 90 day period set forth in Penal Code 1306(c) being about to expire on Oct. 14, 2014."
Zig Zag's motion to set aside the bond was not heard and decided until November 2014. In its reply brief supporting that motion, Zig Zag—after the County of San Mateo argued in its opposition brief that the motion was untimely, having been filed after the July 16, 2014 expiration of the appearance period, as extended—argued for the first time that the untimeliness should be excused under Code of Civil Procedure section 473, subdivision (b), for "mistake, inadvertence, surprise, or excusable neglect."
On November 12, 2014, the court denied the motion to set aside the forfeiture, ruling that it had no jurisdiction to grant relief. At the hearing, the court inquired of counsel for Zig Zag why Simon failed to appear to seek revocation at the June 5, 2013 preliminary hearing, and why a motion had not been filed before the expiration of the appearance period. Counsel did not know why Simon failed to appear at the June 5 hearing, and his only explanation for the tardiness of the motion was that Zig Zag had no lawyer and did not understand proper procedure in bond forfeiture proceedings.
II. DISCUSSION
A. The Statutory Scheme Governing Bond Forfeiture Proceedings
" 'The statutory scheme governing bail forfeitures is found in Penal Code section 1305 et seq. These provisions must be carefully followed by the trial court, or its acts will be considered without or in excess of its jurisdiction. [Citation.]' " (People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 717 (North River).) In interpreting this statutory scheme, "we must bear in mind that ' "[t]he law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, Penal Code sections 1305 and 1306 dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture." ' [Citation.]" (Ibid.)
In general terms, the statutory scheme works as follows: "If a criminal defendant out on bail fails to appear when lawfully required to do so, the trial court must declare bail forfeited. (§ 1305, subd. (a).) The clerk must mail notice of forfeiture to the surety for bonds greater than $400. Adding in five days for mailing, the surety then has 185 days to bring the defendant in to court. (§ 1305, subds. (b)-(c).)" (People v. Tingcungco (2015) 237 Cal.App.4th 249, 253 (Tingcungco).) These 185 days are commonly known as the appearance period. (North River, supra, 200 Cal.App.4th at p. 717.) "Upon a showing of good cause the surety may seek an extension of up to another 180 days. (§ 1305.4.)" (Tingcungco, supra, 237 Cal.App.4th at p. 253.) Which as a practical matter means that the bail agent often will have about a year to locate and bring about the surrender of an absconding defendant. (See People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 43.)
"Pursuant to Penal Code section 1305, subdivisions (b) and (c), the trial court must set aside a forfeiture of bail and exonerate the bond if the defendant appears or is surrendered to custody by the bail agent" during the appearance period (North River, supra, 200 Cal.App.4th at pp. 717-718) or any extension thereof (Tingcungco, supra, 237 Cal.App.4th at p. 253). If the defendant appears or is returned to custody in the county where the case against him was filed, no motion for relief need be filed by the surety. (People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 304-305 (Indiana Lumbermens).) "The court must act on its own motion to reinstate and exonerate the bond, and if it fails to do so exoneration is accomplished by operation of law." (Id. at p. 305.)
If, at the end of this statutory time-frame, the appearance period has "elapse[d] without the forfeiture having been set aside, the trial court must enter summary judgment against the surety. (Pen. Code, § 1306, subd. (a).)" (North River, supra, 200 Cal.App.4th at p. 718.) There is a brief 30-day "tail" period for the hearing of motions to set aside the forfeiture and exonerate the bond in some circumstances. "[I]f a motion to vacate the forfeiture and exonerate the bond is timely filed, it may be heard within 30 days after the expiration of the appearance period. [(§ 1305, subd. (j); id., former subd. (i).)]" (Ibid.) But once the appearance period has elapsed, the trial court's power to act on the bond—other than by its disposition of a timely filed motion to set aside a forfeiture—is narrowly limited, both in terms of what it can do and how long it has to do it. "If the trial court fails to enter summary judgment [on the forfeited bond] within 90 days after the date upon which it may first be entered, it loses the right to do so. (Pen. Code, § 1306, subd. (c).)" (North River, supra, 200 Cal.App.4th at p. 718; accord, County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62 [in section 1306 " 'the Legislature intended to impose a 90-day time limit in which to enter summary judgments on defaulted bail which is jurisdictional' "].)
B. The Bond Was Not "Revoked," Zig Zag's Motion to Set Aside the Bond Forfeiture and Exonerate the Bond was Untimely, and There Are No Material Defects in the Summary Judgment as Entered
Relying heavily on the interpretive canon disfavoring forfeitures, Zig Zag argues that "[p]ursuant to Penal Code § 1305 [Enayati's] bond was revoked while he was in the custody of San Mateo County. At that time the bond should have been exonerated." If there were some potential for ambiguity in the statutory scheme on this point, the anti-forfeiture principle might come into play. But there is none. What Zig Zag calls "revocation" is, in the language of section 1305, the "release[] of [the surety's] obligations under the bond" (§ 1305, subd. (b)), which may occur either by an order of the court vacating the forfeiture (§ 1305, subds. (c)(1)-(3)) or in some circumstances by operation of law (Indiana Lumbermens, supra, 49 Cal.4th at pp. 304-305).
These provisions apply only after the court has declared a forfeiture, during the appearance period. (§ 1305, subd. (c)(1) ["If the defendant appears either voluntarily or in custody after surrender or arrest in court within 180 days of the date of forfeiture or within 180 days of" notice of forfeiture, italics added]; id., subd. (c)(2) ["If, within 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," italics added]; id., subd. (c)(3) ["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," italics added].) When, on June 2 and 3, 2013, Simon sought to "revoke" the bond Zig Zag had posted as security to ensure Enayati's appearance, no forfeiture had yet been declared, so section 1305, on its face, did not apply. That is why Simon was unable to fill in the line on the June 2 Affidavit indicating to whom Enayati had surrendered. The form was designed to apply to circumstances that had not yet occurred.
We do not address, because it has not been raised, whether Zig Zag could have sought withdrawal of the bond on some non-statutory ground, and if so, what the proper procedure should have been to seek that relief. Zig Zag insists that the bond it posted was improvidently issued based on inaccurate information. Even if the bond undertaking, as a contract, was subject to contractual defenses such as rescission, Zig Zag failed to raised them.
More fundamentally, however, even assuming Zig Zag had grounds to be released from the bond, its motion to set aside the forfeiture and for exoneration was untimely. A motion to set aside the forfeiture and for exoneration could have been filed at any time prior to the expiration of the appearance period, as extended, on July 16, 2014. The motion it filed on September 23, 2014, was 69 days late—beyond even the 30 days following expiration of the appearance period for the hearing of a timely filed motion to set aside. By that time, the court was no longer empowered to hear the motion. (People v. Lexington National Ins. Co. (2007) 158 Cal.App.4th 370, 373 ["Courts have consistently interpreted section 1305 as requiring that a surety move to have the forfeiture vacated within the 180-day period and have found that a court is without jurisdiction to vacate a forfeiture if a motion to vacate is not made within that period."].)
See also People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 ("The surety that posted the bond then has a statutory 'appearance' period in which either to produce the accused in court and have the forfeiture set aside, or to demonstrate other circumstances requiring the court to vacate the forfeiture"); People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, 125 ("Sections 1305 and 1305.4 provide a 180-day period . . . within which a surety may obtain relief from forfeiture or exoneration of bail"); People v. Ranger Ins. Co. (2002) 101 Cal.App.4th 605, 608 ("Section 1305 provides for circumstances in which the surety may have the bail forfeiture set aside. It imposes a 180-day jurisdictional time limit (from the time of forfeiture) in which such relief can be granted"); People v. American Bankers Ins. Co. (1991) 227 Cal.App.3d 1289, 1297, overruled on other grounds by People v. National Automobile & Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 126 (since the 180-day period prescribed by section 1305 is jurisdictional, a court is powerless to vacate a forfeiture unless a motion for relief from forfeiture is made within that time frame); People v. Wilshire Ins. Co. (1975) 45 Cal.App.3d 814, 817 ("The burden is upon the bonding company seeking to set aside the forfeiture to establish" an excuse from forfeiture "within the limited period"). --------
Zig Zag now seeks relief from this jurisdictional bar under section 473, subdivision (b), for "mistake, inadvertence, surprise, or excusable neglect," citing North River, supra, 200 Cal.App.4th at p. 718. But North River was a case in which a surety hired a lawyer to appear for it on a timely filed motion to set aside a bond forfeiture. The hearing date on the motion there was set during the statutorily authorized 30-day period for hearing such motions. The lawyer failed to appear because he did not receive a copy of the motion from his client. When the trial court denied the motion to set aside for the surety's default in appearing at the hearing, the lawyer filed a declaration of fault under section 473, subdivision (b). The appellate court recognized section 473 is a valid ground for relief from the non-appearance, but only to allow the surety a chance to pursue a motion that the trial court would have been empowered to hear on the date originally set. Here, there was no timely filed motion to set aside the forfeiture and exonerate the bond. Section 473 cannot be used to create jurisdiction where there is none.
Finally, Zig Zag points out there is "an error on the face of the summary judgment," since, in the body of the judgment, the court refers to a stranger named Allan Richard Finau. We do not view this error as material; it is quite plainly a typographical mistake, since the judgment elsewhere correctly refers to Enayati. Zig Zag concedes that the error may be corrected in any event, and to ensure it does not cause any confusion in the execution process, we will direct the trial court to correct the error as a clerical mistake, nunc pro tunc.
III. DISPOSITION
We affirm the trial court's denial of Zig Zag's motion to set aside and for exoneration of the bond Zig Zag posted for Enayati as well as the summary judgment entered for the County of San Mateo on the forfeited bond. We also direct that the trial court correct the erroneous reference to Allan Richard Finau in the judgment, nunc pro tunc.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.