Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SJ 3104, Richard Kemalyan, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, Ralph L. Rosato, Assistant County Counsel, and Jason C. Carnevale, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
American Contractors Indemnity Company, the surety on a bail bond, moved to set aside a summary judgment forfeiting the bond appellant issued for the appearance of a criminal defendant, Joseff Jomes Wright (defendant). Appellant contends the trial court lost jurisdiction to enter judgment by its failure to timely declare a forfeiture on the first date the defendant failed to appear and that the bond was exonerated when the defendant was released on bail in an amount less than that required by the bail schedule. We find the appeal to be untimely and therefore dismiss the appeal.
After the completion of briefing, we issued a notice under Government Code section 68081 informing the parties that certain questions had arisen that were not raised or briefed by any party and invited the parties to file supplemental letter briefs on those issues. We received and considered supplemental briefs from appellant and from respondent, County of Los Angeles (County).
FACTS AND PROCEDURAL HISTORY
We set forth the facts and procedural history to place our analysis in appropriate context.
The defendant was arrested in November 2006 for driving a vehicle without the consent of the owner, a felony. Appellant posted a $30,000 bail bond for the defendant’s release about a week later, and a felony complaint was subsequently filed against the defendant. According to the parties, the complaint alleged that the defendant had unlawfully driven a 2007 Volvo without the vehicle owner’s permission. The complaint listed several other convictions on the defendant’s record and recommended bail of $50,000.
In December 2006, the defendant appeared for his arraignment in propria persona and waived his right to counsel. The trial court continued the matter to January 17, 2007, to allow defendant to hire private counsel, and ordered him to appear on the new date. On January 17, 2007, the defendant again appeared in court without counsel. The court continued the arraignment and plea to January 31, 2007, to allow the defendant to retain private counsel and once more ordered the defendant to appear on the continued date.
On January 31, 2007, the defendant was represented by private counsel, but defendant did not personally appear for his arraignment. Counsel informed the court that the defendant “has undergone surgery and cannot physically be here. I have a note from the doctor.” The court accepted the doctor’s note for filing and issued a bench warrant ordering bail forfeited. The defendant’s arraignment was continued to February 28, 2007. A notice of bail forfeiture was printed by the court clerk and mailed to appellant.
The court inquired the location at which the defendant had his surgery. Counsel stated he did not know, “[b]ut he [the defendant] is not able to come to court.” Apparently reviewing the letter, the court noted, “Totally incapacitated. No lifting. You are talking to someone who has had between 11 and 14 major surgeries.... [M]y recovery period was huge.” Defense counsel asked to approach the bench and, after a discussion at sidebar, the court stated, “the court finds good cause to hold the warrant on this matter. However, I need to forfeit the bail.... It’s quite different than what is on the doctor’s note, but I am going to incorporate the doctor’s note by reference. And the reason I find good cause is because of the nature of the surgery.”
On February 28, 2007, the court once more called the case for arraignment. The defendant was present in court and represented by private counsel. The court ordered a pre-plea report and continued the arraignment to April 25, 2007, for possible early disposition. The defendant was ordered to appear on that date. Bail bond reassumption papers were filed with the court, and the defendant’s bail was reinstated.
The case proceeded to disposition on April 25, 2007, and the defendant personally appeared in court with his counsel. The court granted his motion to continue the matter to May 25, 2007, directing him to appear on the continued date.
On May 25, 2007, the defendant failed to appear in court but his private counsel was present. Counsel stated his client was “undergoing a procedure, I believe an operation. I have a letter from the doctor, if I may approach. I am wondering if you can issue and hold the warrant.” The court stated it would take the letter, and a discussion occurred off the record. Afterwards, the court issued a bench warrant but, at defense counsel’s request, held the warrant to June 13, 2007. On June 13, the court called the case for a bench warrant hold. Defense counsel appeared, but the defendant was not present. The court decided to hold the bench warrant to July 6, 2007. A notation in the clerk’s minutes states that “[a] letter from a doctor is filed this date.”
The court once more called the case for the bench warrant hold on July 6, 2007. The defendant did not appear, although his counsel was present. Counsel proffered a doctor’s letter, and the court inquired, “Where is [the defendant], other than the University of California, San Diego... ?” Counsel stated he was not sure, saying, “I know he’s got a terminal illness and trying to fight it.” He later added, “My understanding, your honor, he is not doing too well. He is not able to function completely as a normal person. He is bedridden most of the time.” Counsel told the court that he could be “specific about the illness” if he could approach the bench. However, he admitted, “my information comes from defendant. I have not verified it. I have no reason to doubt it.” The court ordered the bench warrant to be held until July 13, 2007, and directed defense counsel to notify his client to appear on that date.
During this discussion, the court expressed some skepticism of the reason for the defendant’s absence, saying: “... I need to see your client. [¶] There is something really troubling with the [doctor’s] letter. I [have] seen medical letters before. It does not say what he is suffering from. It says chronic illness. After 14 surgeries, I got chronic pain, but I can be specific and tell you exactly what is my problem, and it is my hand, elbows, my knees, my back, my jaw.” Counsel responded, “I can be specific about the illness, if we can approach. But my information comes from defendant. I have not verified it. I have no reason to doubt it.” After more discussion, the court stated, “I will hold it to Friday, the 13th, unless he does not make an appearance in here. We [have] got to find out what is happening with more specifics. Everything is based upon what he said, not anything is based upon an independent determination by the doctor. He [i.e., counsel] claims or says per [the defendant].”
On July 13, 2007, neither the defendant nor his counsel appeared in the courtroom. The court found the defendant’s failure to appear was without sufficient excuse and ordered his bail forfeited. It ordered a bench warrant with bail set at $60,000 to be issued. The clerk of the court issued and served a notice of forfeiture of bail upon appellant on July 16, 2007.
On March 10, 2008, the time for filing a motion to set aside the forfeiture having elapsed, the clerk requested that the court order entry of summary judgment on the bond against appellant. The court entered the requested judgment on March 13, 2008, and the clerk gave notice of entry of judgment upon appellant the same day.
On April 11, 2008, 29 days later, appellant moved to set aside the summary judgment, discharge the forfeiture and exonerate bail, on the ground that the court lacked jurisdiction to enter the summary judgment. The court denied appellant’s motion on August 15, 2008, 126 days after the motion to set aside the judgment. The parties waived notice, and appellant filed a notice of appeal on September 4, 2008, 175 days after the notice of entry of the judgment.
DISCUSSION
Both parties agree that the summary judgment was an appealable judgment, and we find persuasive authority for that proposition. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661 (American Contractors); County of Los Angeles v. Harco National Ins. Co. (2006) 144 Cal.App.4th 656, 660 (Harco); People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1076.) Appellant, however, additionally asserts that although the summary judgment in this case is appealable, because the superior court did not comply with “jurisdictional prescriptions” contained in Penal Code sections 1305 and 1306, the summary judgment is “void” and subject to attack at any time, making its appeal from the denial of a motion to set aside the judgment timely. We disagree.
In American Contractors, the Supreme Court explained as follows: “Essentially, jurisdictional errors are of two types. ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’ [Citation.] [¶] However, ‘in its ordinary usage the phrase “lack of jurisdiction” is not limited to these fundamental situations.’ [Citation.] It may also ‘be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ [Citation.] ‘“[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.”’ [Citation.] When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by ‘principles of estoppel, disfavor of collateral attack or res judicata.’ [Citation.] Errors which are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack once the judgment is final unless ‘unusual circumstances were present which prevented an earlier and more appropriate attack.’ (Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 727; id. at p. 725 [general rule is that a ‘final judgment or order is res judicata’ and not subject to collateral attack ‘even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties’]; [citation].)” (American Contractors, supra, 33 Cal.4th at pp. 660-661, italics added.)
Following American Contractors, we recently noted that “errors in excess of jurisdiction ‘are generally not subject to collateral attack once the judgment is final’ unless unusual circumstances prevented an earlier and more appropriate attack.” (People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 1377, 1386, fn. 11, quoting American Contractors, supra, 33 Cal.4th at p. 661.)
In the present case, the superior court had jurisdiction in the “fundamental” or “strict sense” in that it had jurisdiction over the subject matter and the parties. Appellant argues the court exceeded its power because it failed to timely declare a forfeiture on the first date the defendant failed to appear and because it allowed the defendant to be released on bail in an amount less than required by the bail schedule. These are claims that the court acted in excess of its jurisdiction, and any such error would render the summary judgment voidable, not void.
These circumstances are materially different from those in People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547 (Amwest), a case in which we found the trial court’s entry of summary judgment to be void, rather than merely voidable. The trial court in Amwest failed to declare a forfeiture in open court, as mandated by Penal Code section 1305, subdivision (a), resulting in a loss of fundamental jurisdiction over the bail bond. We stated: “Because the court did not have fundamental jurisdiction when it entered the summary judgment, the judgment was necessarily void, and subject to collateral attack at any time.” (Amwest, at p. 550.) We explained that “[t]his conclusion is compelled under the authorities holding that a failure to declare a bail bond forfeited in open court exonerates the bond (People v. National Automobile & Casualty Ins. Co. (2002) 98 Cal.App.4th 277, 280 (National Automobile)[)], and under principles described by the Supreme Court in American Contractors, supra, 33 Cal.4th at pp. 660-663, distinguishing between judgments that are void and those that are voidable.” (Ibid.)
In National Automobile, the trial court neglected to comply with the statutory requirement under Penal Code section 1305, subdivision (a) mandating that “[a] court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail” if the defendant fails to appear without sufficient excuse. (National Automobile, supra, 98 Cal.App.4th at p. 285.) During a court recess, the trial court simply directed the court clerk to enter a forfeiture in the minutes. (Ibid.) The appellate court held that “[t]he plain language of the... statute indicates in order for bail to be forfeited a trial court must (1) make a declaration of forfeiture stating ‘bail is forfeited’ (2) on the record while court is in session.” (Id. at p. 283.) When the trial court failed to declare bail forfeited in open court, no forfeiture occurred and the bond was exonerated. (Id. at p. 289.) Thus, the court had nothing upon which to act because the court no longer had subject matter jurisdiction. (Amwest, supra, 125 Cal.App.4th at p. 553.)
Under California Rules of Court, rule 8.104, appellant was required to file a notice of appeal from the summary judgment within 60 days from of March 13, 2008, the date on which the clerk gave notice of entry of judgment. Appellant asserts that the motion attacking the summary judgment is “in the first place” a motion to vacate the order of forfeiture, because the judgment is based on that order. Appellant argues the judgment is void because the court did not comply with the jurisdictional requirement for timely declaration of forfeiture and, if the order of forfeiture is void, the judgment is void and may be attacked “by any means and at any time.” We disagree.
All further rule references are to the California Rules of Court.
Appellant was given notice of the entry of summary judgment on March 13, 2008, and it had 60 days in which to directly challenge the judgment unless the time to appeal was extended. Appellant filed a motion to set aside the summary judgment on April 11, 2008. This was 29 days after notice of entry of the judgment was given by the clerk. Under rule 8.108(c), the time to appeal is extended if a party serves and files a “valid notice of intention to move--or a valid motion--to vacate the judgment.” Under Code of Civil Procedure section 663a, a notice of intention to make such a motion must be made either “[b]efore entry of judgment” or “[w]ithin 15 days of the date of mailing of notice of entry of judgment by the clerk of the court....” Appellant’s motion to set aside the summary judgment therefore was not a “valid” and timely motion under rule 8.108(c).
Moreover, even assuming a valid and timely motion, rule 8.108(c) extends the time to appeal only until the earliest of: “(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first notice of intention to move--or motion--is filed; or [¶] (3) 180 days after entry of judgment.” In the present case, the earliest of such dates occurred on July 10, 2008, i.e., 90 days “after the first notice of intention to move--or motion--[to vacate the judgment] [wa]s filed.” Appellant did not file its notice of appeal until nearly two months later.
Appellant argues that its time to appeal commenced running on August 15, 2008, when its motion to vacate the summary judgment was denied. Appellant bases this argument on the premise that the trial court’s original judgment was “void” and could therefore be attacked at any time. Because the judgment was merely “voidable” and not “void, ” as explained ante, it was only vulnerable to an attack by direct appeal taken within the period set forth in rule 8.104. (Harco, supra, 144 Cal.App.4th 656, 660, 662.) In Harco, Division Five of this court held that any challenge by a surety to a “voidable” summary judgment should be by direct appeal only. (Id. at p. 662.) Harco stated that when no timely appeal is filed from the summary judgment, absent an “exceptional circumstance, ” the summary judgment becomes final and not subject to collateral attack. (Id. at p. 662; American Contractors, supra, 33 Cal.4th at p. 661 [“the judgment is final unless ‘unusual circumstances were present which prevented an earlier and more appropriate attack’”].) Appellant does not cite any “unusual circumstances” that prevented it from timely appealing from the summary judgment, and the record does not show any such circumstance.
DISPOSITION
The appeal is dismissed. The County is to recover costs on appeal.
We concur: BIGELOW, P. J., LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.