Opinion
NOT TO BE PUBLISHED
Super. Ct. of the City & County of San Francisco No. CPF-09-509402
Dondero, J.
Defendant Bankers Insurance Company appeals the trial court’s order denying relief from forfeiture of a bail bond and from the summary judgment based on the forfeiture. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 16, 2008, defendant issued a $70,000 bail bond to secure the release of Robin Aguilera, a criminal defendant.
On August 22, 2008, Aguilera failed to appear and the trial court declared the bail forfeited.
On September 4, 2008, the trial court mailed notice of the forfeiture to the bail agent Mackenzie Green and to defendant.
On March 4, 2009, defendant and Green filed a motion to vacate the forfeiture or to extend time, and set it for hearing on March 26, 2009. The moving papers include a declaration from Green, stating that she had called Aguilera’s brother who told her Aguilera had been arrested by federal immigration authorities on August 22, 2008. Green also stated she had contacted the Honduran Consulate and had been informed that Aguilera was removed from the United States on September 4, 2008. She indicated she had requested official documentation confirming this information and represented that the documentation should be available prior to the hearing.
On March 18, 2009, Julie Martin, a paralegal at defendant’s counsel’s law firm, submitted a supplemental declaration stating that she had contacted Homeland Security on March 17, 2009, and was told Aguilera had been deported on September 10, 2008.
On March 23, 2009, the People filed its opposition to defendant’s motion. The People asserted that defendant had failed to present competent evidence to support its claim that Aguilera had been deported. The People also argued defendant had failed to establish good cause to extend or toll time.
Defendant’s attorney of record did not appear on March 26, 2009, and the trial court continued the matter to April 7, 2009.
On April 7, 2009, defendant’s attorney of record again failed to appear. The trial court denied defendant’s motion.
An attorney named Adam Gasner appeared specially for defendant at the hearing.
On April 22, 2009, the court granted summary judgment in favor of plaintiff for the amount of $70,365.
On May 7, 2009, the trial court filed its written order denying defendant’s motion to vacate forfeiture and exonerate the bail bond, as well as denying the motion to extend time or toll time. This appeal followed.
DISCUSSION
I. Bail Forfeiture
“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....” (People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1074, fn. omitted.) If a court orders bail forfeited, there is a period of 185 days (180 days plus five days following the mailing of the forfeiture notice) known as the “appearance period” or the “exoneration period” when the bail may be exonerated. (§ 1305, subds. (b) & (c); People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658 (American Contractors).) After the expiration of the appearance period, the court must enter summary judgment within 90 days: “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.” (§ 1306, subd. (c).)
All further statutory references are to the Penal Code except as otherwise indicated.
Section 1305 “must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture....” (People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 769; County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62.) “The purpose of bail and forfeiture statutes is to ensure the attendance of the accused and his [or her] obedience to court orders and judgments. [Citations.] It does not have as a goal revenue for the state or punishment of the surety. [Citations.] Moreover, because the law disfavors forfeitures and statutes imposing them, the statutes are strictly construed in favor of the surety to avoid harsh results.” (People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1044–1045.) However, the surety company bears “the burden of coming forward with a request [for relief from forfeiture under section 1305] and making the necessary showing within the statutory time frame....” (People v. American Bankers Ins. Co. (1991) 233 Cal.App.3d 561, 570.) It is the bonding company’s obligation “to establish by competent evidence that its case falls within the four corners” of section 1305. (People v. Ramirez (1976) 64 Cal.App.3d 391, 398.)
II. Standard of Review
The determination of a motion to set aside a bail forfeiture is entirely within the discretion of the court and will not be disturbed absent an abuse of that discretion. (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 944.) “The abuse of discretion standard applies to the trial court’s resolution of a motion to set aside a bail forfeiture [citation], subject to constraints imposed by the bail statutory scheme. ‘[W]hen a statute requires a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to act subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.’ [Citation.]” (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1491–1492.)
III. Is the Summary Judgment Void for Premature Entry?
Relying on American Contractors, supra, defendant first claims the summary judgment is void because the trial court entered judgment before it filed its written order denying the motion to vacate. In American Contractors, the Supreme Court held that summary judgment entered on the last day of the appearance period was voidable, not void. (33 Cal.4th 653, 662–663.) Defendant argues that the trial court here lacked jurisdiction to enter summary judgment, not because it was entered before the appearance period had expired, but because it was entered before the written order denying the motion was filed. The argument lacks merit.
The appearance period in the present case expired on March 8, 2009, or 185 days after the notice of forfeiture was mailed to defendant and Green. Defendant filed its motion to vacate the forfeiture, or, alternatively, to toll or extend time, on March 4, 2009, four days before the appearance period was set to expire. The trial court continued the matter when defendant’s counsel failed to appear at the March 26, 2009 hearing. At the continued hearing on April 7, 2009, the court orally denied defendant’s motion. The court’s ruling denying defendant’s motion was thus made after the 185-day appearance period had expired. The court thereafter entered summary judgment on April 22, 2009. Summary judgment was entered before the 90-day period for entering judgment had expired. Thus both the rulings were made within the statutorily prescribed time periods.
Nevertheless, defendant claims the court did not “acquire jurisdiction” to enter judgment until May 8, 2009, the day after the written order denying the motion was filed. Defendant 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., supra, 114 Cal.App.4th 758, 765–766.) In the present case, however, defendant’s motion was not pending when the court entered summary judgment on April 22, 2009, as the court had already denied defendant’s motion in open court on April 7, 2009.
The fact that the trial court did not file its written order denying the motion until May 7, 2009, does not alter our conclusions. Defendant cites to California Rules of Court, rule 8.104(d)(2), for the proposition that the court had no jurisdiction to enter judgment until the day after the order was filed. This rule applies to the time within which a party must file an appeal. It does not purport to affect the validity of an order made orally at a trial court hearing. Thus, the court did not lack “jurisdiction” in the fundamental sense of lacking the power to act. At most it acted erroneously. (See American Contractors, supra, 33 Cal.4th 653, 663 [“ ‘Under the Penal Code, a court has jurisdiction over a bail bond from the point that it is issued until the point it is either satisfied, exonerated, or time expires to enter summary judgment after forfeiture.’ ”].)
Rule 8.104(d)(2) provides: “The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 [prevailing party to prepare order] or similar local rule is not such an order prepared by direction of a minute order.”
Further, we find unpersuasive defendant’s related argument that a determination on appeal that the trial court’s entry of summary judgment was premature would necessarily require exoneration of the bail. This contention is based on the premise that the 90-day period for entry of a summary judgment has long since expired. The argument overlooks the fact that the filing of an appeal transfers jurisdiction over the challenged matter from the trial court to the appellate court and thus prevents the trial court from acting on the challenged matter. (See Code Civ. Proc., § 916, subd. (a).) Stated otherwise, the jurisdiction of the trial court is suspended or tolled while an appeal is pending. Thus, logically, the 90-day period does not continue to run while the appeal is pending. (Compare People v. Aegis Security Ins. Co., supra, 130 Cal.App.4th 1071, 1074–1075 [pending motion to extend the appearance period extended the period for summary judgment until after a hearing and decision on the motion]; People v. Granite State Insurance Co., supra, 114 Cal.App.4th 758, 768 [pending motion to vacate forfeiture and exonerate bail before expiration of the appearance period extended the time for entry of summary judgment].) Defendant would not be entitled to exoneration of the bail merely because the original 90-day period lapsed while its appeal was pending.
IV. Whether Deportation Prevented Defendant’s Performance
On appeal, defendant asserts Aguilera was deported to Honduras on September 11, 2008, and because he is ineligible to reenter this country as a result of a prior failure to leave the United States voluntarily, defendant cannot return Aguilera without violating federal law. Defendant contends the decision in People v. American Surety Ins. Co. (2000) 77 Cal.App.4th 1063 (American Surety) controls the outcome of this case and demonstrates that section 1305, subdivision (d) required the court to exonerate the bail. We are not persuaded.
Section 1305, subdivision (d) provides: “In the case of a permanent disability, the court shall direct the order of forfeiture to be vacated and the bail or money or property deposited as bail exonerated if, within 180 days of the date of forfeiture..., it is made apparent to the satisfaction of the court that both of the following conditions are met: [¶] (1) The defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities. [¶] (2) The absence of the defendant is without the connivance of the bail.” The surety has the burden of proving that this statutory provision applies. (People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th 1134, 1139.)
In American Surety, supra, the trial court ordered bail forfeited when the defendant failed to appear because immigration authorities had deported him after he was convicted of narcotics trafficking in another case. (77 Cal.App.4th 1063, 1065.) The surety appealed and the appellate court reversed. Because the drug trafficking conviction permanently barred the defendant from returning to the United States (except in few narrowly circumscribed circumstances), the court concluded that the defendant had, as a practical matter, been “permanently detained” for purposes of section 1305, subdivision (d). (American Surety, supra, at pp. 1067–1068; see also People v. Meyers (1932) 215 Cal. 115, 117–119 [order of a San Francisco court banishing a defendant from California made it impossible for the surety to perform its obligation to return the defendant to the Alameda County court].)
The decision in American Surety does not compel the same result in this case. Even assuming for purposes of argument that a deportation occurring under the instant circumstances constitutes a “detention” within the meaning of section 1305 subdivision (d), when this matter was before the trial court defendant presented no admissible evidence to show that Aguilera had been deported by federal immigration authorities and, indeed, no evidence to show that he was outside the country.
Evidence to support a motion to vacate forfeiture and exonerate a bond “must be by declaration or request for judicial notice” (Cal. Rules of Court, rule 3.1306(a); Pen. Code, § 1305, subd. (i)). At the trial court, defendant offered two declarations containing hearsay testimony that Aguilera had been deported. Months later, on appeal, defendant has requested that we take judicial notice of a Warrant of Removal/Deportation from the U.S. Department of Homeland Security, which does indicate Aguilera was ordered taken into custody on August 22, 2008, and was deported on September 11, 2008. We have granted the request. Defendant claims that the document was not brought before the trial court “because the document could not be obtained by the time of the ruling.”
We note Green’s declaration states that official documents verifying Aguilera’s deportation would be presented to the court by the time of the initial hearing on the motion to vacate. As the People note, courts have held that “the facts upon which the motion is based must be established before [the exoneration] period expires.” (People v. Granite State Insurance Co., supra, 114 Cal.App.4th 758, 768.) Yet defendant’s counsel of record did not appear at the hearing. Nor did he appear at the continued hearing some two weeks later. Even if the documentation could not have been obtained earlier, there is no explanation as to why defendant did not appear at the hearing to justify the delay to the trial court and to request more time. Indeed, on appeal defendant does not argue that the trial court erred in denying its alternative motions to extend or to toll time.
“ ‘ “The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” [Citations.]’ [Citation.]” (County of Los Angeles v. Nobel Ins. Co., supra, 84 Cal.App.4th 939, 944–945.) We find the trial court did not abuse its discretion in denying defendant’s motion to vacate based on the evidence that was before it. The two declarations offered by defendant contained hearsay and were insufficient to establish that Aguilera had been deported. (See id. at p. 944 [because the surety’s assertion that the defendant had been deported lacked factual support it was not entitled to exoneration of its bond under section 1305, subdivision (d)].) There is no provision of law that would allow this court to reverse the trial court’s ruling based on the late-submitted documentation of Aguilera’s deportation. In sum, we conclude the trial court did not err in denying defendant’s motion to vacate and in entering summary judgment.
DISPOSITION
The judgment is affirmed.
We concur: Margulies, Acting P. J., Banke, J.