Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SJ002810. Larry P. Fidler, Judge.
Nunez & Bernstein, E. Alan Nunez for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Brian T. Chu, Principal Deputy County Counsel, Richard K. Kudo, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
FACTS
On January 29, 2004, appellant American Surety Company (the surety) issued a bail bond for $60,000 to secure the release of Hovakim Sogomonian, an arrestee who was ordered by the jailor to appear in court on February 19, 2004. It is not clear from the record whether the case was on the court calendar on February 19, 2004, or whether Sogomonian appeared. A criminal complaint against Sogomonian was filed on February 24, 2004, and his arraignment took place on March 4, 2004. After a preliminary hearing, Sogomonian was held to answer on three narcotics counts.
On April 24, 2006, the court conducted a hearing on Sogomonian’s motion to suppress evidence. Sogomonian was present. The surety claims that it tried to surrender Sogomonian into custody because he had violated the surety contract and presented a risk of flight. The reporter’s transcript provided by the surety does not reflect any attempt to surrender Sogomonian; however, the court’s minutes state, “bail bondsman is present in court requesting exoneration of bail bond.” The court ordered Sogomonian to appear for trial on April 25, 2006, and to either post a new bond or have the surety reinstate his bail for an additional fee. The court indicated that it would address the request for bond exoneration on April 25.
Sogomonian was absent from court on April 25, 2006. As a result, the court issued a bench warrant and an order forfeiting bail.
On September 18, 2006, Best Choice Bail Bond (the bonding company), as a party-in-interest, moved to set aside the bail forfeiture. The bonding company argued that the court should have addressed the issue of exoneration on April 24, 2006. The motion was denied without prejudice: counsel was advised to obtain the reporter’s transcripts for April 24-25, 2006, and to refile the motion.
At a hearing on October 11, 2006, the trial court stated that “the person who came to court on April 24th and attempted to surrender [Sogomonian] . . . came in with no paperwork, he provided—the only paperwork he provided was his business card, and his name is not the name of the bail agent on the bail that’s on file. . . . [¶] So we have a person who says, ‘I’m the bail person,’ with no affidavit from the bail bond company that he is the attorney in fact, or the authorized agent, saying, ‘I want bail exonerated,’ to take him into custody, if that’s the words he said, and I don’t think that is sufficient under the code.” . . . [¶] The bail bondsman or [his] authorized representative has to present paperwork that shows the contractual relationships here.” The court noted that the bondsman must “come in and prove to the satisfaction of the court that he was the bail bondsman, or the authorized representative bondsman. That wasn’t done in this case.”
On December 13, 2006, the bonding company renewed its motion to set aside the bail forfeiture. In its motion, the bonding company asserted that its agent “addressed the court, identified himself as an authorized agent and asked that the bond be exonerated. The court did not the agent question [sic] and told [him] to return the following day. . . . The court had apparently assumed that the agent’s decision to exonerate the bond was based on the expiration of the premium. Nevertheless, it is clear that the court did not inquire as to the agent’s request and the agent, respectful of the court’s erroneous ruling, returned the following day.” A declaration from the agent states, “I informed the bailiff that I was an agent of surety and wished to have the bond exonerated. [ ] When the judge took the bench, I identified myself and requested that the court exonerate the bond.” The agent did not declare that he offered the court any reason why it should exonerate the bond.
On December 20, 2006, the court heard the bonding company’s second motion to set aside the bail forfeiture. The bonding company contended that on April 24, “the authorized agent of the bail bonds company was present in court, offered a certified copy of the bond to the court, requested that the bond be exonerated, and expressed concerns about the defendant.” To this argument, the court replied, “Well, the trouble is, counsel, is none of those things happened. This is what happened: A man came to court, said he was the bonding agent. He did not file a motion; did not file a certificate of surrender of prisoner by bondsman; did not provide the court, or attempt to file any paperwork or a certified copy of the bond; did not express any concern about the defendant not appearing in court. Merely says, ‘Your Honor, we would like this to be exonerated.’ Didn’t say why. Said nothing.” Indeed, the court observed, the “unidentified person” purporting to be the bonding agent “didn’t even demand that [Sogomonian] be placed in custody.”
The court denied the bonding company’s motion because the surety failed to satisfy the legal requirements for exoneration. The clerk entered judgment against the surety and served the judgment on January 2, 2007, for $60,000 plus court costs of $320.
On December 29, 2006, the bonding company filed a motion to vacate summary judgment, on the grounds that the surety was continuing its efforts to locate Sogomonian and because the court should have granted the motion to set aside the bail forfeiture. The bonding company also filed a motion seeking reconsideration of its unsuccessful motion to set aside the bail forfeiture. Respondent argued that the bonding company had no standing to pursue the motion because judgment was entered against the surety, not the bonding company. Respondent also argued that the sole means of challenging the judgment was by direct appeal. The court denied the bonding company’s request to vacate summary judgment on February 23, 2007. On March 2, 2007, the surety took this appeal from the summary judgment.
DISCUSSION
If bail forfeiture is ordered by the court, “judgment may be summarily made and entered forthwith” against the surety. (Pen. Code, §§ 1278, subd. (a), 1287, subd. (a).) Appeal may be taken from the denial of a motion to set aside a forfeiture, or from a summary judgment entered after forfeiture. (People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1382-1383.) The trial court’s refusal to set aside a bail forfeiture “should not be disturbed on appeal unless an abuse of discretion appears in the record.” (Id. at p. 1383.)
All statutory references in this opinion are to the Penal Code.
First, the surety argues that the forfeiture should have been set aside because the bond was automatically exonerated on February 19, 2004, the date originally set by the jailor for Sogomonian’s first court appearance. If a defendant fails “without sufficient excuse” to appear for arraignment, the court “shall in open court declare forfeited the undertaking of bail . . . .” (§ 1305, subd. (a).) If the court fails to declare a forfeiture upon a defendant’s unexcused absence, it loses jurisdiction to declare a forfeiture at a later date. (People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, 550.)
The surety asks us to presume, without any evidentiary support, that Sogomonian failed to appear at an initial court appearance on February 19, 2004. There is nothing in the record on appeal about February 19, 2004. We are not presented with evidence that events took place on February 19 that were simply not recorded by a reporter or memorialized by the court clerk, leaving the record “silent” as to these events. The record is nonexistent for February 19. As the party seeking to set aside the forfeiture, the surety has the burden of establishing its case by competent evidence. (People v. American Bankers Ins. Co. (1992) 4 Cal.App.4th 348, 354.) It has not done so here.
Even if we were to presume that Sogomonian failed to appear on February 19, the bond was not automatically forfeited and the court retained jurisdiction because no criminal charges were filed before the date originally scheduled for arraignment. “[T]he court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligations under the bond if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment.” (§ 1305, subd. (a), italics added.) Although there is no evidence that a court hearing was conducted in Sogomonian’s case on February 19, 2004, the criminal complaint against him was filed five days later, hence the court retained jurisdiction over the bail, due to the 15-day rule of section 1305.
The reason for the 15-day rule in section 1305 is explained in People v. Ranger Ins. Co. (2006) 145 Cal.App.4th 23. Quoting the Assembly Committee on Public Safety, the court wrote, “‘This bill provides that no forfeiture shall occur if “no complaint is filed.” For a variety of reasons (further investigation to locate a witness or incomplete lab analysis, for example) a complaint may not be filed in a case for some time after a person is arrested and has bailed out. The district attorney may notify the bondsman that the defendant does not have to appear in court for another two weeks, but by that time a complaint will be filed. [¶] The defendant benefits by not having his or her bail exonerated before charges are actually filed because there will be no need to reapply for bail and pay additional fees. [¶] The law enforcement [agency] and the court benefit by not having bail exonerated because if bail is exonerated at the first scheduled court appearance (when charges have not yet been filed) the district attorney will have to prepare a warrant request, to be signed by a judge, and served by law enforcement in order to resecure the defendant’s appearance. The defendant will also risk rearrest on the same charge. [¶] This problem could be alleviated if the bill provided for a fixed time frame after which bail could be automatically exonerated.’ [Citation.] [¶] As amended to include the 15-day time limit, the bill was adopted.” (145 Cal.App.4th at pp. 29-30.)
In Ranger, the criminal defendant did not appear on January 22, 2004 (the original date for arraignment set by the jailor) after the arraignment was rescheduled by the arresting law enforcement agency. No complaint was filed until March 18, almost two months later. The bond was automatically exonerated on February 6 (the 15th day after the date originally scheduled for arraignment). (People v. Ranger Ins. Co., supra, 145 Cal.App.4th at p. 30.) By contrast, in the case at bench the complaint was filed within the 15-day period, so the bond was not automatically exonerated under section 1305.
The surety misplaces its reliance on People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, which was decided under section 1305 prior to a 1987 amendment adding the 15-day provision for filing a complaint. The legislative amendments to section 1305 are described in People v. Ranger Ins. Co., supra, 145 Cal.App.4th at pp. 28-30.)
Second, the surety contends that the bail was exonerated by operation of law when the trial court failed to accept the surrender of Sogomonian in court on April 24, 2006. The bailor may surrender the defendant at any time before forfeiture “to the officer to whose custody he was committed at the time of giving bail,” by delivering a certified copy of the undertaking of the bail to the officer who must detain the defendant in his custody, “and by a certificate in writing acknowledge the surrender.” (§ 1300, subd. (a)(1).) The surety did not attempt to surrender Sogomonian to the jailor; instead, an exoneration request was made in court.
“[A] surrender and acceptance in open court even though all formal requirements are not meticulously met, are sufficient to exonerate the sureties on a bail bond though the statute specifically provides that a surrender shall be made to a particular officer.” (County of L.A. v. Stuyvesant Ins. Co. (1964) 227 Cal.App.2d 428, 432.) In Stuyvesant, the authorized general agent, Mr. Phillips, stated in court, “‘I have a certified copy of the bond. I would like to . . . put him back in your custody right now, your Honor.’” (Id. at p. 430.) This effort was sufficient to constitute a surrender of the defendant: “The record shows that Phillips was the authorized agent for Stuyvesant, empowered to arrest and surrender [the defendant] and that he did everything within his power to surrender the defendant to the court. The certified copy of the bond which Phillips presented to the court designates Phillips as attorney in fact for Stuyvesant.” (Id. at p. 431.)
In contrast to the facts of Stuyvesant, the reporter’s transcript of April 24, 2006, does not show that the surety took appropriate measures. Despite the surety’s claims to the contrary, the court recollected that there was no certified copy of the bond, no certificate of surrender, and no concerns were expressed that Sogomonian was a flight risk. The only “paperwork” presented was a business card, and the individual seeking exoneration was not the bail agent whose bond was on file. Given the absence of an authorized bail agent, the absence of a certified copy of the bond, and the absence of a certificate of surrender, the court acted within its discretion to refuse the exoneration request of an unknown individual who (1) presented nothing to assure the court that this was a legitimate surrender, and (2) did not ask the court to take custody of Sogomonian.
Third, the surety asserts that the summary judgment was void for lack of jurisdiction because a motion to vacate forfeiture was pending at the time the court entered judgment. After forfeiture, there is a 185-day “appearance period” in which the defendant may appear, voluntarily or in custody. (§ 1305, subd. (c)(1); People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1074.) Here, the 185 days expired on October 27, 2006. At that point, the court had 90 days in which to enter summary judgment. (§ 1306, subd. (c); People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708, fn. 2; People v. Aegis Security Ins. Co., supra, at p. 1074.) The court entered summary judgment on January 2, 2007, within the 90 days.
The surety relies upon a case holding that the court cannot enter summary judgment if there is a motion to vacate forfeiture pending before the court. (People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 765-766.) In this instance, the bonding company pursued two motions for relief from forfeiture: one on September 18, 2006, and one on December 13, 2006. On December 29, 2006, the bonding company filed a “motion to vacate summary judgment.” The motion to vacate summary judgment was denied on February 23, 2007.
The court denied both of the bonding company’s motions to vacate forfeiture before it entered summary judgment. The first motion was denied without prejudice, and the second motion was denied on the merits on December 20, 2006. The final motion brought by the bonding company was an effort to vacate summary judgment. To the extent that the motion to vacate summary judgment constituted a third request to vacate forfeiture, it fails: the matter was res judicata because the court had already denied the second motion to vacate forfeiture on the merits on December 20. A party cannot relitigate the same issue over and over, hoping to get a different result from a different judge.
As Judge Fidler observed at the hearing on the bonding company’s motion to set aside summary judgment, “it appears you are asking me to [say] that Judge Herscovitz made a mistake [in denying the motion to vacate forfeiture]. I don’t have that authority. You are asking two equal judges. The law states that I have no authority whether I agree or disagree with him, and that’s totally irrelevant to change his ruling.”
Finally, even if summary judgment was prematurely entered (despite the court’s rejection of the bonding company’s second request to vacate forfeiture), the summary judgment is “merely voidable, not void,” meaning that it is valid until set aside. (People v. Aegis Security Ins. Co., supra, 130 Cal.App.4th at p. 1076; People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 663-665.) The court properly refused to set aside the summary judgment in this case because the surety failed to follow the rules for surrendering a defendant and exonerating the bond.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J ASHMANN-GERST, J.