Opinion
A148158
08-01-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIKA MARIE BRODER, Defendant; BANKERS INSURANCE CO., Real Party in Interest and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 537910)
The Superior Court awarded the County of San Mateo summary judgment against Bankers Insurance Company for $25,000, the amount due on a bail bond forfeiture. (Pen. Code, §§ 1305-1306.) Bankers Insurance Company, the surety to the bail bond, now appeals on grounds that the court improperly denied its motion to extend the appearance period to exonerate a bond and thus erred in granting summary judgment. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I.
BACKGROUND
On January 8, 2015, Bankers Insurance Company, acting through its agent All Pro Bail Bonds, posted a bail bond in the amount of $25,000 to ensure defendant Erika Marie Broder's appearance at her first court hearing on February 9, 2015. Broder was charged in San Mateo County with a felony violation of Health and Safety Code section 11377, subdivision (a) (felony possession of a controlled substance) and a misdemeanor violation of Penal Code section 484 (petty theft). Broder failed to appear in court as required by law on February 9. The Superior Court ordered the bail bond forfeited the same day. The clerk's office filed and mailed a notice of order forfeiting bail on February 13. This triggered a 180-day appearance period for Bankers to find and return Broder to custody in order to receive an exoneration of the bond. (See Pen. Code, § 1305, subd. (c).)
For ease of reference, we will hereafter refer to Bankers Insurance Company and All Pro Bail Bonds collectively as Bankers.
Broder remained at large, and Bankers' investigators actively pursued an investigation to find her. Bankers filed a timely motion to extend the appearance period and the People filed a nonopposition. On August 28, 2015, the court extended the period to seek relief from bail forfeiture until February 15, 2016, an additional 171 days.
Bankers filed a second motion to extend time on February 16, 2016. Broder was apprehended and appeared in court on March 2, 2016, where she pleaded guilty and was sentenced for the misdemeanors of possession of a controlled substance and petty theft. The People then filed an opposition to Bankers' motion.
The appearance period was extended an additional day because February 15, 2016 was a court holiday. (See Code Civ. Proc., § 10.)
The court heard the motion on March 17, 2016. It denied Bankers' motion and refused to extend time, ruling "I'm going to go ahead and deny the motion on jurisdictional grounds." The court also stated, "I think I'm bound by the First District's decision in these cases." At the time, there was a split of views among panels within the Court of Appeal in cases addressing the availability of an extension of time in these circumstances. A panel here in our District had determined the maximum appearance period was 365 days—the sum of the 180 initial days, plus five days for mailing of notice, and a 180-day extension. (People v. Accredited Surety & Casualty Co., Inc. (2013) 220 Cal.App.4th 1137, 1148-1149, disapproved in People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 46 (Financial Casualty).) But two panels in the Second and Fifth Districts, respectively, came down differently, holding that the maximum appearance period was 180 days from the date a court granted the initial extension request. (see, e.g., County of Los Angeles v. Williamsburg Nat. Ins. Co. (2015) 235 Cal.App.4th 944, 954 (Williamsburg); People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1008.)
Bankers filed a timely appeal. This court granted a motion to suspend the briefing schedule pending the outcome of two related cases, including one addressing this split, pending in the Supreme Court of California. The Supreme Court having released its decision resolving the split in in authority on the dispositive issue presented here (Financial Casualty, supra, 2 Cal.5th 35), and this appeal having been fully briefed, argued, and submitted, we now proceed to decide it.
II.
DISCUSSION
A. The Statutory Scheme Governing Bond Forfeiture Proceedings
" '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, or its acts will be considered without or in excess of its jurisdiction. [Citation.]' " (People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 717 (North River).) In interpreting this statutory scheme, "we must bear in mind that ' "[t]he law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, Penal Code sections 1305 and 1306 dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture." ' [Citation.]" (Ibid.)
In general terms, the statutory scheme works as follows: "If a criminal defendant out on bail fails to appear when lawfully required to do so, the trial court must declare bail forfeited. (§ 1305, subd. (a).) The clerk must mail notice of forfeiture to the surety for bonds greater than $400. Adding in five days for mailing, the surety then has 185 days to bring the defendant in to court. (§ 1305, subds. (b)-(c).)" (People v. Tingcungco (2015) 237 Cal.App.4th 249, 253 (Tingcungco).) These 185 days are commonly known as the appearance period. (North River, supra, 200 Cal.App.4th at p. 717.) "Upon a showing of good cause the surety may seek an extension of up to another 180 days. (§ 1305.4)" (Tingcungco, supra, at p. 253), which as a practical matter means that the bail agent often will have about a year to locate and bring about the surrender of an absconding defendant. (Financial Casualty, supra, 2 Cal.5th at p. 43.)
"Pursuant to Penal Code section 1305, subdivisions (b) and (c), the trial court must set aside a forfeiture of bail and exonerate the bond if the defendant appears or is surrendered to custody by the bail agent" during the appearance period (North River, supra, 200 Cal.App.4th at pp. 717-718) or any extension thereof (Tingcungco, supra, 237 Cal.App.4th at p. 253). If the defendant appears or is returned to custody in the county where the case against him was filed, no motion for relief need be filed by the surety. (People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 304-305.) "The court must act on its own motion to reinstate and exonerate the bond, and if it fails to do so exoneration is accomplished by operation of law." (Id. at p. 305.)
If, at the end of this statutory timeframe, the appearance period has "elapse[d] without the forfeiture having been set aside, the trial court must enter summary judgment against the surety. (Pen. Code, § 1306, subd. (a).)" (North River, supra, 200 Cal.App.4th at p. 718.) There is a brief 30-day tail period for the hearing of motions to set aside the forfeiture and exonerate the bond in some circumstances. "[I]f a motion to vacate the forfeiture and exonerate the bond is timely filed, it may be heard within 30 days after the expiration of the appearance period. (§ 1305, [former] subd. (i) [now subd. (j).])" (Ibid.) But once the appearance period has elapsed, the trial court's power to act on the bond—other than by its disposition of a timely filed motion to set aside a forfeiture—is narrowly limited, both in terms of what it can do and how long it has to do it. "If the trial court fails to enter summary judgment [on the forfeited bond] within 90 days after the date upon which it may first be entered, it loses the right to do so. (Pen. Code, § 1306, subd. (c).)" (North River, at p. 718; accord, County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62 [in section 1306 " 'the Legislature intended to impose a 90-day time limit in which to enter summary judgments on defaulted bail which is jurisdictional' "].)
B. The Trial Court Lacked Authority to Extend the Appearance Period Past 180 Days
Even though the trial court based its decision on a statutory interpretation later disapproved by our Supreme Court (see Financial Casualty, supra, 2 Cal.5th at pp. 39-43 [disapproving the 365-day calculation method used in Accredited]), we conclude it properly denied the motion on "jurisdictional grounds." By the March 17 hearing, the court lacked power to act. The request for a further extension at that point was out of time, thereby barring an extension under any interpretation of the statute.
Financial Casualty held that section 1305.4 gives a trial court discretion to grant a second motion to extend the appearance period when it hears the second motion within 180 days of its first extension order. (Financial Casualty, supra, 2 Cal.5th at p. 43.) The timeline in that case is instructive. On March 20, 2013, the trial court granted a surety's first extension for 134 days through August 1. (Id. at p. 40.) The surety filed a second motion to extend on August 1; the court heard the motion on August 26. (Id. at p. 41.) The maximum possible 180-day extension from the March 20 order ended on September 16. (Ibid.) The trial court had authority to grant an additional extension through September 16 at the time of its August 26 hearing. (Id. at p. 46.)
The recent Allegheny decision, which applied Financial Casualty, is also instructive. In Allegheny, a trial court properly denied a surety's motion to extend the appearance period for a second time when it heard the motion more than 180 days after issuing its first extension order. (County of Los Angeles v. Allegheny Casualty Co. (2017) 13 Cal.App.5th 580, 586 (Allegheny).) Again, the timeline is informative. On April 23, 2015, the trial court granted the surety's motion and extended the appearance period for 174 days through October 14. (Id. at p. 583.) On October 13, the surety filed a motion to extend and calendared the motions for a hearing on November 6, 197 days after the court's extension order. (Ibid.) At the hearing, the surety sought an additional extension equal to the difference between the number of days initially granted and the 180-day maximum. (Ibid.) The trial court denied the motion and the Court of Appeal affirmed. (Id. at pp. 582-583.) The hearing occurred more than 180 days past the extension order and the appearance period had expired. Therefore, the trial court "lacked the authority to order any further extensions." (Id. at p. 586.)
Here, the court issued its first extension order on August 28, 2015. The court granted a 171-day extension through February 15, 2016. The court heard the motion for a second extension on March 17, 202 days after the initial extension order. Thus, the court lacked authority to grant an additional extension because it heard the motion well after February 24, the last date of the maximum possible 180-day extension. (See Financial Casualty, supra, 2 Cal.5th at p. 46, fn. 2.)
Granting Bankers an additional extension was impermissible because it would have exceeded the 180-day limit in section 1305.4. This case is unlike Financial Casualty, where the court heard the motion for an additional extension prior to the 180-day mark and could grant an additional extension. (Financial Casualty, supra, 2 Cal.5th at p. 40.) On the timeline presented, any further extension would have exceeded the maximum. Instead, this case is similar to Allegheny, where the court could not grant an additional extension equal to the difference between the court's initial order and 180 days because it heard the motion after the appearance period expired. (Allegheny, supra, 13 Cal.App.5th at pp. 583, 586.) Accordingly, we agree with the People that the Superior Court was powerless to grant a second extension.
Section 1305.4 states trial courts may order an extension for a duration " 'not exceeding 180 days from its order.' " (Allegheny, supra, 13 Cal.App.5th at pp. 586-587.) This is a set period; section 1305.4 "clearly was intended to provide for a limited extension period of 180 days, not an indefinite one." (Financial Casualty, supra, 2 Cal.5th at p. 46, fn. 2.) This interpretation reflects the underlying policy goal of using the bond system to "ensure the accused's attendance and obedience to the criminal court . . ." (Id. at p. 42.) Permitting additional extensions "would be contrary to the text and purpose of section 1305.4." (Id. at p. 46, fn. 2.) Ensuring Broder's attendance at her February 9, 2015 court date is an example of this goal. Bankers' "failure to bring a timely motion results in a statutory bar to relief, not a windfall to the county." (People v. Indiana Lumbermens Mutual Ins., Co., supra, 49 Cal.4th at p. 308.) Broder failed to appear in court within the window when the court could vacate the forfeiture and exonerate the bond. Here, "[t]he policy disfavoring forfeiture cannot overcome the plainly intended meaning of the statute." (Id.)
Bankers insists that, instead of granting a 171-day extension on August 28, 2015, the trial court "intended to grant the bail agent the maximum allowable extension period [of 180 days, but that]...due to a legal error, [the extension period]...was erroneously calculated based on the mailing date of the notice of forfeiture instead of the date of the order." Bankers says it "attempted to rectify this legal error by filing a motion to further extend time, requesting the 9 additional days to which they were entitled." But it matters not what the court "intended" to do on August 28, whether the calculated extension was based on "legal error," or whether Bankers sought to "rectify" the claimed error. Bankers did not act soon enough and, when it did act, it took no steps to make sure its motion was set for hearing by February 24, the jurisdictional deadline. For whatever reason, Bankers decided to file its motion to further extend time—without any request to put the motion on for hearing on shortened time—on the last day of its 171-day extension, just nine days before the 180-day limit. By that point, it was impossible for the court to grant such a motion without a request to expedite. (See § 1305, subd. (k) ["[T]he moving party shall give the prosecuting agency a written notice at least 10 court days before a hearing . . . as a condition precedent to granting the motion"].) The responsibility for mistiming the motion lies at Bankers' doorstep.
The trial court properly denied a further extension. The court had discretion to hear and grant such a motion through February 24, 2016, 180 days from the extension order, but no longer did so by the time it heard the motion on March 17.
III.
DISPOSITION
The order denying Bankers' motion to extend the appearance period is affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------