Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1225655 Donald E. Shaver and Scott T. Steffen, Judges.
Retired Judge of the Stanislaus Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
John P. Doering, County Counsel, and Alice E. Mimms, Deputy County Counsel, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
CORNELL, J.
The County of Stanislaus (the County) appeals from an order exonerating the bail bond posted by Accredited Surety and Casualty Company, Inc., after Amalia Vinton Granados, the defendant for whom Accredited posted the bond, was returned to custody. The notice of appeal also states the County is appealing the order that granted Accredited’s motion for an extension of time to return Granados to custody pursuant to Penal Code section 1305.4. The County argues the trial court abused its discretion in granting Accredited’s section 1305.4 motion. We disagree and affirm the order.
The bond was posted by Accredited Surety and Casualty Company, Inc., while A.J.’s Bail Bonds was the bondsman for Granados. Aleo John Pontillo and Janelle Llorens apparently were bail agents acting on behalf of A.J.’s Bail Bonds. To ease the reader’s task, we will refer to these individuals and these entities collectively as Accredited.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
Granados was arrested and charged with various crimes. Accredited posted a bond in the amount of $50,500 to secure Granados’s pretrial release. Granados subsequently failed to appear as scheduled, and the trial court ordered the bond forfeited. Accredited moved within the time prescribed by law for an extension of time to locate and return Granados to custody pursuant to section 1305.4.
In support of its motion, Accredited filed a declaration executed by Llorens. Llorens stated that upon learning of Granados’s failure to appear, she began searching data bases for information about her. Llorens located several addresses for Granados and began searching for information about each of the addresses and current occupants. She also searched for addresses used by Granados and the indemnitor in the past. The file was assigned to an investigator, who began checking the addresses. The investigator spoke with Granados’s mother and learned she may have fled to San Diego. The investigator also learned that Granados had three siblings living in Fresno, California.
In November 2009, three months after the bail bond was forfeited, the investigator working on the file was arrested on an unrelated matter. The file was assigned to a new investigator, although it is unclear when the reassignment occurred. Nonetheless, the new investigator located a new address for Granados as of February 2, 2010. Possible phone numbers for Granados also had been located and were being investigated. Llorens’s declaration concluded by stating that Accredited had several leads and that with additional time Llorens was confident Granados would be located.
The County opposed the motion. The primary basis for the opposition was procedural, of which the relevant portions are set forth in our discussion. In addition, the County argued Accredited failed to establish good cause to grant the 180-day extension.
At the hearing on the motion, the trial court was informed that Granados had been located and returned to custody. The trial court granted the section 1305.4 motion. Subsequently, the forfeiture was vacated and the bond was exonerated.
DISCUSSION
I. Appealability
Reviewing courts generally act in one of two possible capacities. First, we review trial court proceedings on direct appeal. Second, we may review trial court proceedings on a writ proceeding. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 (Griset).) In its opening brief, the County asserted that it was appealing pursuant to Code of Civil Procedure section 904.1, subdivision (a)(1). This section permits direct appeals from a judgment.
“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. [Citations.]” (Griset, supra, 25 Cal.4th at p. 696.) “A trial court’s order is appealable when it is made so by statute. [Citations.]” (Ibid.)
In its notice of appeal, the County cited three orders from which it was appealing. First, it was appealing from the order granting Accredited’s section 1305.4 motion. We have not located any statute permitting an appeal from such an order. Indeed, case law is clear that an order denying a section 1305.4 motion is not appealable. (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 79-80 (Seneca).) The County has not presented any authority or argument suggesting that an order granting a section 1305.4 motion should be appealable. We conclude such an order is not appealable.
The County also listed in its notice of appeal the order exonerating the bail bond. No such order appears in the record. Instead, it appears that the bond was exonerated as a matter of law. (See, § 1305, subd. (c)(1) & (2).)
The County also listed in its notice of appeal the order vacating the forfeiture, which is the only order the County may rely on to support its argument. The County’s argument, as we understand it, is that the order exonerating the bond terminated any rights the County may have had to pursue recovery against the bond, and as such, it was in effect a judgment.
The only case cited by the County to support its proposition is People v. Wilcox (1960) 53 Cal.2d 651 (Wilcox). Wilcox was released on bail after he was charged with various crimes. Anchor Casualty Company was the surety on the bond obtained by Wilcox. Subsequently, Wilcox failed to appear, although defense counsel appeared, arguing that Wilcox could not appear because of his health. The trial court ordered the bond forfeited. The surety eventually filed a motion to vacate the forfeiture and to exonerate the bond. The trial court granted the surety’s motions and the People appealed.
The Supreme Court first addressed the appealability of the order.
“A preliminary question relates to the appealability of the order. Section 1238 of the Penal Code, which sets out orders from which the People may appeal in criminal matters, does not include an order setting aside a forfeiture of bail. Nor does section 963 of the Code of Civil Procedure [(now Code Civ. Proc., § 904.1)] specifically mention such an order as appealable. However, that section provides in subdivision 1 for an appeal from a ‘final judgment entered in an action.’ In Howe v. Key System Transit Co.[][(1926)] 198 Cal. 525, the court stated at page 531, that the right of appeal from orders not within the express provisions of section 963 has been sustained upon the theory that where, in effect, an order is a final judgment against a party in a collateral proceeding growing out of the action it ‘is so far independent of the suit itself as to be substantially a final decree for the purpose of an appeal, although there has been no final decree in the suit. (Citations.)’ [Citation.] That test is met in the present case. The forfeiture of bail is an independent, collateral matter, civil in nature, and the effect of an order on a motion to set aside such a forfeiture is substantially a final determination at the trial court level of issues affecting the surety, aside from the principal matter before the court. The situation is not to be compared to that following an order of forfeiture, as in that case the affected parties may still seek the further relief of the trial court by a motion to set aside the forfeiture (Pen. Code, § 1305), and are not entitled to an appeal until such relief has been sought. [Citations.] But appeals, after the denial of a motion to set aside a forfeiture, have been entertained without question of the appealability of such orders. [Citations.] No distinction should be drawn when the motion to set aside is granted, because in either event the determination is then final and collateral to the principal issue.” (Wilcox, 53 Cal.2d at pp. 654-655.)
In this case, the County appeals from an order vacating the forfeiture, just as in Wilcox. Since we are bound by the decisions of the Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we deem the County’s appeal to be well taken. Accordingly, we turn to the merits of the County’s appeal.
II. Granting Accredited a 180-Day Extension
Procedural requirements
Section 1305, subdivision (a) provides that when a defendant fails to appear as ordered, the trial court must declare the bond forfeited. If the defendant appears in court or is taken into custody within 180 days of the declaration of forfeiture (the exoneration period), the trial court must vacate the forfeiture and exonerate the bond. (Id., subd. (c)(1) & (2).) If the forfeiture is not set aside during the 180-day period, then the trial court must enter summary judgment against the surety. (§ 1306, subd. (a).)
Prior to the expiration of the initial 180-day period, the surety may move for an additional 180 days to bring the defendant before the trial court by filing a section 1305.4 motion. The trial court may grant the motion only if the surety demonstrates “good cause” for the extension. (Ibid.)
Here the County argues the trial court erred in granting Accredited’s section 1305.4 motion because Accredited did not establish good cause for the 180-day extension.
Standard of review
The trial court has discretion to determine whether a surety moving for an extension pursuant to section 1305.4 has established good cause for the additional time. We review the trial court’s order for an abuse of discretion. (People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644 (Ranger).) A trial court abuses its discretion when its decision exceeds the bounds of reason under all of the circumstances of the case. (Seneca, supra, 116 Cal.App.4th at p. 80.)
Analysis
The County makes a three-prong attack on the trial court’s decision. First, it argues the trial court granted the motion only because Granados had been taken into custody before the hearing, but after the 180-day period expired. Second, it argues that the declaration submitted by Accredited contained facts that would be inadmissible at trial, thus the trial court erred in relying on the inadmissible portions of the declaration. Third, it argues that even if the entirety of the supporting declaration is considered, there was not good cause as a matter of law for the extension and therefore the trial court erred in granting the motion. We will discuss the three contentions individually.
Granados taken into custody
As explained above, after Accredited filed its section 1305.4 motion, but before the hearing on the motion, Granados was apprehended and returned to custody. The County argues this was the sole basis for the trial court’s decision to grant Accredited’s section 1305.4 motion.
Were the County’s position well taken, we would agree. Events that occur after the 180-day exoneration period has expired may not be considered when determining whether the surety has established good cause for an extension. (Ranger, supra, 150 Cal.App.4th at p. 649; Seneca, supra, 116 Cal.App.4th at p. 82.)
The County’s position, however, is not supported by the record. The trial court made clear, before it learned that Granados had been apprehended, that it had reviewed the record, found that Accredited had been diligent in attempting to locate Granados, and tentatively concluded that it was “appropriate to grant an extension.” Therefore, while the trial court most certainly learned that Granados had been apprehended, it is clear that its decision to grant Accredited’s motion was not based solely on that fact. To the extent the trial court also may have relied on Granados’s apprehension, the error in doing so was not prejudicial since it found good cause for the extension prior to learning of that fact and therefore would have granted the motion, even if Granados had not been in custody.
At the hearing on the motion, the County did not present any new argument or authority that would have changed the trial court’s tentative ruling.
Admissibility of Llorens’s declaration
Accredited submitted the declaration of Llorens in support of its motion. The contents of this declaration are summarized above. The County objected to Llorens’s declaration at the hearing and renews its objections here because Llorens included descriptions of activities that she did not perform. For example, Llorens stated that an investigator had gone to Fresno to check possible addresses for Granados. The County does not suggest that anything in Llorens’s declaration is false, only that the declaration failed to meet the evidentiary standards imposed at a trial. The trial court impliedly overruled the County’s objections. The County contends the trial court erred in considering any fact contained in Llorens’s declaration that was not based on her personal knowledge.
It is true, as a general rule, that a witness may testify concerning a particular matter only if that witness has personal knowledge of the matter. (Evid. Code, § 702, subd. (a).) Llorens’s declaration, however, was not submitted to establish an evidentiary fact, nor was it submitted for the purpose of obtaining a judgment. Instead, it was submitted solely for the purpose of obtaining additional time to present Granados to the trial court and avoid a forfeiture of the bail bond posted by Accredited. Accredited was required to establish good cause, and the trial court was required to consider all of the relevant circumstances when deciding whether to exercise its discretion to grant or deny the motion. (County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027-1028.)
Section 1305.4 does not require that good cause be established only by evidence admissible at trial. Instead, the statute requires the surety to submit “a declaration or affidavit that states the reasons showing good cause to extend” the initial 180-day exoneration period. (Ibid.)
The Legislature has demonstrated that it knows how to impose evidentiary limitations on declarations when it wishes to do so. For example, in a motion for summary judgment, moving and opposing declarations “shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the” declarations. (Code Civ. Proc., § 437c, subd. (d).) The Legislature did not impose such requirements on a section 1305.4 motion.
This situation is similar to requests for a continuance of a trial or a hearing, which, experience has demonstrated, often are made orally and not under penalty of perjury. In such a situation, the trial court is required to consider the relevant circumstances in deciding whether good cause exists to grant the request. (See, e.g., § 1050.) Because motions are made orally, attorneys often explain why a continuance is necessary (e.g., the attorney assigned to try the case is in trial in another department or a witness is unavailable). Such explanations often are not made on the attorney’s own personal knowledge, but are based on information supplied to the attorney. No purpose is served by imposing the obligation to present evidence in a form admissible at trial at such hearings. Indeed, such a requirement would impose additional burdens on the trial court and counsel and would interfere with the orderly administration of justice.
Similarly, we cannot discern any reason for imposing the evidentiary standards of a trial on a section 1305.4 motion. If we did so, numerous declarations inevitably would be submitted with each motion, increasing the workload of an already busy judiciary. Moreover, such a requirement would not increase the reliability of the evidence submitted, nor assist the trial court in determining the merits of the motion. In each case, the issue would be the same -- has the surety demonstrated good cause to continue the 180-day exoneration period based on its actions before the hearing? The same actions would be before the trial court, but instead of a single declaration there would now be numerous declarations. Accordingly, we reject the County’s suggestion that declarations in support of a section 1305.4 motion must meet the evidentiary standards imposed at trial.
Good cause for the extension
Finally, the County argues that even if Llorens’s declaration is considered, the trial court abused its discretion in granting Accredited’s section 1305.4 motion because Accredited failed to establish good cause for the extension. Once again, we disagree.
Llorens’s declaration established that shortly after the forfeiture was declared, she began working on the file in an attempt to locate Granados. Several possible leads were developed, and the file was assigned to an investigator. Possible addresses for Granados were checked, and Granados’s mother was cooperating with the investigation. When the investigator assigned the file was arrested on an unrelated matter, the file was assigned to another investigator, who developed additional leads to locate Granados. Llorens concluded that Accredited was pursuing several leads, and she was confident that Granados would be located and brought before the trial court in the near future.
The trial court’s decision to grant Accredited’s section 1305.4 motion clearly did not exceed the bounds of reason. Accredited actively pursued its investigation, developed leads, and received cooperation from Granados’s family. Accredited was pursuing new leads at the time it filed for the extension of time to bring Granados before the trial court and was confident it would locate Granados in the near future. This evidence was more than adequate to establish the trial court did not abuse its discretion.
DISPOSITION
The order appealed from is affirmed.
WE CONCUR: LEVY, Acting P.J., FRANSON, J.