Opinion
E068065
09-14-2018
THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE CO., Defendant and Appellant.
Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Ronak N. Patel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIC703916 & RIC1703896 & RIF1500196 & SWF018295) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn and Samuel Diaz, Jr., Judges. Reversed with directions. Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Ronak N. Patel Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant Bankers Insurance Co. (Bankers) appeals after the forfeiture of two bonds pursuant to Penal Code sections 1305 and 1306 for Charlene Antonett Jefferson's failure to appear on two separate criminal cases: Riverside County Superior Court case Nos. RIF1500196 (Case I) and SWF018295 (Case II).
All further statutory references are to the Penal Code unless otherwise indicated.
Jefferson failed to appear on both cases and the court declared a forfeiture on the two bonds. Bankers filed timely motions to vacate forfeiture and exonerate bail (Motions to Vacate). The People of the State of California (the State) filed opposition. While the Motions to Vacate were pending, the court entered summary judgment on the bonds in Cases I and II. Thereafter, the Motions to Vacate were heard but no party provided evidence that summary judgments on both cases had already been entered. The Motions to Vacate were denied.
Banker appeals the denial of its Motions to Vacate and the entry of summary judgment in Cases I and II as follows: (1) entry of summary judgment on the bonds was premature because of the pending Motions to Vacate, and reversal and exoneration of the bonds is required; and (2) pursuant to section 1305, subdivision (c)(2), this court should discharge forfeiture and exonerate bail because Jefferson appeared voluntarily at the Riverside County Superior Court clerk's window to add her cases to the calendar during the forfeiture period.
We reverse the entries of summary judgment for Cases I and II, and remand for the court to enter a new order vacating the forfeiture and exonerating the bonds.
FACTUAL AND PROCEDURAL HISTORY
On March 25, 2015, All-Pro Bail Bonds, acting as an agent of Bankers, posted bond No. 555134419-2 in the amount of $30,000 for the release of Jefferson in Case I. Jefferson was to appear in the Riverside County Superior Court on May 20, 2015, on charges of violating sections 459; 487, subdivision (a); 475, subdivision (c); and the special allegation under section 667.5, subdivision (b). On the same day, All-Pro Bail Bonds also posted bond number 580250425-8 in the amount of $5,000 for the release of Jefferson in Case II. Jefferson was to appear on May 20, 2015, on three charges of violating section 459.
On January 26, 2016, the trial court filed notices of forfeiture of bail in Cases I and II due to Jefferson's failure to appear in court. The notices provided, "Notice is further given that pursuant to Section 1305 of the Penal Code, reference to which is made for further particulars, you are entitled to a hearing as to the setting aside of the forfeiture, within 180 days of the date of this notice, upon FILING of a NOTICED MOTION which sets forth the basis for setting aside the forfeiture, with proof of service upon the District Attorney at least ten (10) days prior to the date set for hearing." The notices were served on Bankers.
Thereafter, on January 27, February 9, February 29, May 13, and June 9, 2016, Jefferson appeared at the window of the clerk at the Riverside County Superior Court and filed requests to add both cases on to the calendar. Despite setting new dates, Jefferson failed to appear in court each time. On August 31, 2016, the trial court granted the request by Bankers to extend the time on the forfeiture of bonds in both cases through February 27, 2017.
On February 27, 2017, Bankers filed its Motions to Vacate in Cases I and II. It sought to have a hearing on the Motions to Vacate. The trial court granted the request to hear the Motions to Vacate on March 27, 2017. Bankers argued in the points and authorities that Jefferson had appeared in front of the clerk of the court on several occasions and the clerk was aware there were outstanding warrants for Jefferson's appearance. Bankers could rely on the officials of the court to arrest Jefferson on the warrant. Jefferson's absence from court was entirely the fault of the court.
Prior to the hearing on the Motions to Vacate, on March 2, 2017, the court filed orders of summary judgment on bail bond forfeiture against Bankers on Cases I and II. In Case II, it was ordered that the State recover $5,000 plus $255 in costs from Bankers. The order noted that the court ordered the bond forfeited on January 26, 2016, and time was then tolled on the bond pursuant to section 1305.4 until February 27, 2017. Since 185 days had elapsed, the forfeiture order was still in effect. In Case I, it was ordered that the State recover $30,000 plus $450 in costs. It included the same information, that the bond was forfeited on January 26, 2016, and that time was tolled until February 27, 2017. Summary judgments were entered on March 3, 2017.
It appears that the summary judgment orders were signed by Judge Gunn but the Motions to Vacate were heard by Judge Diaz.
On March 17, 2017, the State filed opposition to the Motions to Vacate. The State argued that Bankers did not meet its burden of proof to provide competent evidence in support of the Motions to Vacate. The clerk of the court had no duty to arrest Jefferson when Jefferson appeared at the clerk's counter. The State argued that this case was not similar to cases involving the arrest and release of a criminal defendant; Jefferson's voluntary appearance at the clerk's window did not require that she be arrested. The State argued that the appearance at the clerk's window was not an appearance in court, and the clerk had no duty to arrest Jefferson. The State made no mention of the entry of summary judgment in the two cases.
The Motions to Vacate were heard on March 27, 2017. The State waived its appearance. The court initially stated it had reviewed the Motions to Vacate and opposition, and its tentative decision was to deny the Motions to Vacate. Bankers stated that Jefferson appeared at the clerk's counter three separate times during the forfeiture period. The trial court asked, "But [does] the clerk have a power to arrest the defendant?" Counsel for Bankers responded that the clerk did not have the power to arrest but there were employees who had the power to arrest Jefferson. Nonetheless, Jefferson appeared at the clerk's counter three or four separate occasions. Bankers's counsel argued, "it is in the interest of equity that the surety could receive an exoneration in that circumstance." There was no mention that summary judgment had already been entered on March 2 in both cases.
The trial court ruled, "I did review your motion carefully and the opposition. Because the defendant shows up to the window, the clerk has no power to arrest, no duty to arrest,. And so because of that, the Court is going to deny the motion to vacate and exonerate the bond. [¶] . . . [¶] . . . So the motion to deny is as to both bonds."
On April 3, 2017, Bankers filed its notices of appeal in both cases, from the March 27, 2017, order denying its Motions to Vacate and from the summary judgments entered on March 3, 2017.
DISCUSSION
A. PREMATURE ENTRY OF SUMMARY JUDGMENT
Bankers first contends the court erred by entering summary judgment while the Motions to Vacate were pending. The State appears to concede that the summary judgments were entered prematurely but argue Bankers waived, invited the error, or was estopped of its right to contest such orders by failing to raise the claim at the time the Motions to Vacate were heard.
" ' "The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court." ' [Citations.] 'A bail bond is in the nature of a contract between the government and the surety, in which the surety acts as a guarantor of the defendant's appearance under risk of forfeiture of the bond. [Citation.] "In general the state and surety agree that if the state will release the defendant from custody, the surety will undertake that the defendant will appear personally and at a specified time and place. . . . If the defendant fails to appear at the proper time and place, the surety becomes the absolute debtor of the state for the amount of the bond." ' " (People v. Fairmont Specialty Group (2009) 173 Cal.App.4th 146, 151.)
" 'The forfeiture or exoneration of bail is entirely a statutory procedure, and forfeiture proceedings are governed entirely by the special statutes applicable thereto. [Citation.] Sections 1305 through 1309 govern bail forfeiture. [Citation.] Because the law abhors forfeitures, these statutes are to be strictly construed in favor of the surety.' " (People v. Ranger Ins. Co. (1999) 76 Cal.App.4th 326, 328-329.)
"When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).) The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds.(e), (i), 1305.4.) [¶] After the appearance period expires, the trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds.(a), (c).) If summary judgment is not entered within the statutory 90-day period, the bond is exonerated. (§ 1306, subd. (c).)" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657-658, fns. omitted (American Contractors).)
"An order denying a motion to vacate or set aside a forfeiture and exonerate the bail is an appealable order. [Citation.] The resolution of such a motion 'is within the trial court's discretion and should not be disturbed on appeal unless an abuse of discretion appears in the record.' " (People v. Fairmont Specialty Group, supra, 173 Cal.App.4th at p. 151, fn. omitted.) However, pure questions of law based on the court's interpretation of a statute based on uncontested facts is subject to de novo review. (Ibid.)
The issue to be addressed first in this case is whether summary judgment is entered prematurely when a motion to vacate forfeiture of the bond is pending.
"Where a summary judgment is prematurely entered under the bail forfeiture statutes . . . , the judgment is voidable (not void) and the surety may . . . move to have it set aside in the trial court by a timely motion or challenge it by direct appeal. [Citation.] The most obvious example of such prematurity is where the summary judgment was entered against the surety before the exoneration period expired. [Citations.] Less obvious . . . is that a summary judgment may be premature if it was entered while a timely motion for certain relief was pending under the bail forfeiture statutes." (People v. United States Fire Insurance Company (2015) 242 Cal.App.4th 991, 1001, fn. omitted (Fire Insurance); see also American Contractors, supra, 33 Cal.4th at pp. 664-665.)
The case of People v. Granite State Insurance Co.. (2003) 114 Cal.App.4th 758, 762, is instructive in this case. The appellate court rejected that summary judgment could be entered while a motion to vacate the forfeiture was pending. It further found that the filing of a timely motion to vacate forfeiture during the exoneration period postponed the first day on which summary judgment may be entered to the day after the motion is decided and within 90 days of that date. (Id. at pp. 767-770.)
Relevant here, Bankers filed its Motions to Vacate prior to the expiration of the appearance period. As such, the court could not enter summary judgment. Hence, the entry of summary judgment on March 2 was premature and is voidable. (American Contractors, supra, 33 Cal.4th at pp. 664-665.)
The question remains whether Bankers had to raise the issue at the hearing on the Motions to Vacate or whether it could wait to raise the issue on appeal. Previous case law is replete with the general language that the entry of premature summary judgment may be challenged by a timely motion in the trial court or by direct appeal. (American Contractors, supra, 33 Cal.4th at pp. 663-664; Fire Insurance, supra, 242 Cal.App.4th at p. 1001, 1003; People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1076.) While the better practice in this case would have been to raise the issue at the hearing on the Motions to Vacate so the court could immediately remedy the situation, we have found no authority that supports Bankers had to raise the issue of the erroneous premature entry of summary judgment in the lower court.
The State provides no convincing authority to the contrary. The State contends Bankers cannot assert error for which it "bear[s] some responsibility" by failing to raise the issue first in the lower court. The State insists that Bankers is estopped, invited the error, or waived its right to attack the premature entry of summary judgment by failing to raise the issue at the time the Motions to Vacate were heard.
" ' "Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary.' " (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) "The doctrine applies when '(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.' " (Id . at pp. 986-987.)
Although the State relies on the theory of estoppel, it makes no argument how it applies to the instant case based on the above definition. As such, the claim has been waived.
The State's argument does address waiver and invited error. " ' "Under the doctrine of invited error, where a party, by his conduct, induces the commission of an error, he is estopped from asserting it as grounds for reversal. [Citations.] Similarly an appellant may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal." ' " (Reilly v. Inquest Technology, Inc. (2013) 218 Cal.App.4th 536, 552, italics omitted.)
Here, Bankers did not request or consent to any procedure that caused the court to prematurely enter summary judgment. Bankers timely pursued correction of the error by filing this appeal. Again, this court has found no authority that Bankers had to first file a motion to set aside the summary judgment before filing this appeal, which would support that Bankers waived its right to raise the claim of the premature filing of the summary judgments.
The State relies on People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, 126 to support its claim that Bankers has waived the right to challenge the entry of summary judgment. In Alistar, the surety timely filed requests for extension of the 180-day forfeiture periods in two cases. The hearing on the motions were set beyond the 30-day allowance to hear the motions under section 1305. The People never objected to the hearing date and the motions were heard. On appeal, the People argued for the first time that the motions were improperly heard and the court was divested of jurisdiction because the time had expired. The appellate court denied the claim, stating that the People should have raised the issue below at the time the motions were set. Such failure resulted in the People waiving its objection on appeal that the court should not have decided the extension motions. (Alistar, at pp. 125-128.)
Alistar differs from this case. First, in Alistar, the People of the State of California was found to have waived its claim on appeal because it agreed to set the motions beyond the expiration period. Here, Bankers was not involved in the decision by the court to prematurely enter summary judgment. Additionally, here, the State seeks to have this court find that Bankers waived its claim on appeal. This is in contravention of the rule that the law disfavors forfeitures and must be strictly construed in favor of the surety. (County of Los Angeles v. Williamsburg National Insurance Company (2015) 235 Cal.App.4th 944, 949-950; People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 714.) Additionally, case law supports that the erroneous grant of summary judgment can be raised either by correction in the trial court or on appeal. (American Contractors, supra, 33 Cal.4th at pp. 663-664; Fire Insurance Company, supra, 242 Cal.App.4th at p. 1001.)
Having found that Bankers could properly attack the entry of summary judgment on appeal, and that in fact the court erred by entering summary judgment in both Cases I and II, the question remains as to the proper remedy.
Section 1306, subdivision (c) provides, "If, because of the failure of any court to promptly perform the duties enjoined upon it pursuant to this section, summary judgment is not entered within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated." In American Contractors, the Supreme Court observed that "if summary judgment is entered after expiration of the 90-day period, section 1306 expressly provides that the bond is exonerated." (American Contractors, supra, 33 Cal.4th at p. 661.) If the entry of premature summary judgment is reversed on appeal, and the 90 days within which to file the summary judgment has expired, remand to the trial court to have it order the summary judgment set aside and exonerate the bond is required. (Fire Insurance, supra, 242 Cal.App.4th at pp. 1010-1011.)
Moreover, no showing of prejudice is required. " ' "Where the court activities violate a strict statutory command designed for the surety's protection," prejudice need not be shown.' " (County of Los Angeles v. Williamsburg National Insurance Company, supra, 235 Cal.App.4th at p. 955.)
This court must order the trial court to reverse its order prematurely entering summary judgment and exonerate the bonds because the 90 days during which to file summary judgment in Cases I and II has expired. Moreover, there is no statutory language or case law that supports that the 90-day period is tolled during the filing of an appeal.
We need not address the second claim raised on appeal by Bankers. --------
DISPOSITION
The summary judgments in Cases I and II are reversed. The trial court is directed to enter new orders vacating the forfeiture and exonerating the bonds. Costs on appeal are awarded to Bankers as the prevailing party.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.