Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 508842
Banke, J.
I Introduction
Seneca Insurance Company (Seneca) appeals from an order denying its motion to vacate the forfeiture of bail posted for Jacob Lopez in criminal case No. 2317943 and to exonerate the bail bond. We affirm, although on grounds different than those stated by the trial court. As we explain, we are foreclosed from considering the merits of Seneca’s appeal because it failed to appeal from the summary judgment on the bail bond entered at the behest of the City and County of San Francisco. Although prematurely entered, the summary judgment was merely voidable. In the absence of a timely appeal, the judgment is now final and conclusive, and cannot be collaterally attacked by way of this appeal from the denial of Seneca’s motion to vacate the forfeiture and exonerate the bond.
II Factual and Procedural Background
On May 29, 2007, Seneca issued bail bond No. S50-01188627, securing the release from custody of defendant Jacob Lopez (Lopez) in criminal case No. 2317943 and guaranteeing his appearance at future court dates. Lopez failed to appear in court on September 7, 2007, bail was declared forfeited in open court, and notice of forfeiture was mailed to Seneca and the bail agent, Annie’s Bail Bonds, on September 19, 2007.
On April 10, 2008, the trial court granted Seneca’s motion to extend the appearance period to September 20, 2008 (a Saturday).
On September 22, 2008 (a Monday), Seneca filed a motion to vacate the bail forfeiture and exonerate the bail bond. The motion was made pursuant to Penal Code section 1305, subdivision (g), and was supported by a declaration by the bail agent, Annie Hoddinott. Hoddinott stated: on or about September 18, 2008, she discovered Lopez was residing in Oaxaca, Mexico, she notified San Francisco Police Officer Pat Cadagan and asked if he was willing to extradite Lopez, Cadagan told her Lopez would not be approved for extradition, whereupon she flew to Oaxaca, Mexico, that same day. She further stated: on September 19, 2008, she temporarily detained Lopez in the presence of local law enforcement officers, Officer Ruben Antonio Castalino Martinez positively identified Lopez and signed an identification affidavit, Lopez was fingerprinted and she faxed all of this documentation (copies of which were attached to her declaration) to Officer Cadagan.
All further statutory references are to the Penal Code unless otherwise indicated.
Officer Cadagan’s name is also spelled “Cadigan” in other parts of the record.
The following day, on September 23, 2008, the City and County filed a motion for entry of summary judgment on the bond. The next day, on September 24, 2008, the trial court granted the motion and ordered summary judgment pursuant to section 1306 for the amount of the bond ($30,000) plus court costs ($300), for a total judgment of $30,300. The form order, entitled on the top half of the form, “Summary Judgment,” was filed September 25, 2008. The bottom half of the form, entitled “Demand for Payment,” which “directed” the surety’s and bond agent’s attention to the “SUMMARY JUDGMENT” and gave notice that if the judgment was not paid within 20 days, it would be referred to the city attorney’s office for “enforcement,” was not completed and mailed by the clerk of the court until November 9, 2008.
On October 9, 2008, Seneca filed supplemental exhibits in support of its motion to vacate the forfeiture and exonerate the bond. These consisted of English translations of some of the exhibits filed in support of its motion, including the identification affidavit, the fingerprint card, the officer identification and the certification of the translator.
On October 14, 2008, the City and County filed opposition to the motion. The City and County argued Hoddinott’s declaration was hearsay and insufficient to establish the prosecution had elected not to extradite Lopez, and therefore Seneca had not demonstrated exoneration was proper under section 1305, subdivision (g). It further argued section 1305, subdivision (g), imposed a jurisdictional bar to Seneca presenting any additional evidence.
Seneca’s motion came on for hearing on October 16, 2008. No reporter’s transcript was prepared, and the only indication in the record as to what was discussed at the hearing is the first sentence in the City and County’s “supplemental” brief filed October 20, 2008, which states the brief was submitted “at the Court’s request on the issue of jurisdiction.” In its supplemental brief, the City and County argued Seneca was required to obtain “a decision by the prosecuting agency to extradite or not” on or before September 20, 2008, and it had submitted no proof of any such “election by the prosecuting agency.” The City and County also repeated its assertion that Seneca was jurisdictionally barred under the bond statute from filing any further supporting papers with the court.
On October 22, 2008, Seneca filed a reply memorandum addressing the City and County’s arguments. In it, Seneca described Officer Cadagan as “the representative of the [d]istrict [a]ttorney in charge of making extradition decision.” Seneca also filed a supplemental declaration of Annie Hoddinott. Hoddinott expanded on her original declaration. She stated she actually met with Officer Cadagan in mid-August, told him she believed Lopez had been located in Oaxaca, Mexico and asked Officer Cadagan if he would be interested in extraditing Lopez. Officer Cadagan said he would not be interested in extraditing Lopez from anywhere outside California. She then told Officer Cadagan she would be flying to Oaxaca as soon as she knew Lopez’s exact location to get positive identification. Hoddinott stated she received confirmation of Lopez’s location on September 18, 2008, and immediately flew to Oaxaca with an interpreter. While in Oaxaca, she called Deputy City Attorney Leonor Noguez for “advice on an issue” and also faxed all the documentation to Officer Cadagan from Oaxaca. There is nothing in the record indicating the City and County ever disputed that Officer Cadagan was the proper contact for extradition decisions or that any of Hoddinott’s statements were inaccurate.
Seneca’s motion came on for hearing again on October 24, 2008. On October 29, 2008, the trial court filed its order reciting numerous “findings” and denying the motion. Among other things, the court found Seneca had not met its burden of proof because Hoddinott’s original declaration was “not admissible evidence” and not sufficient in any case to establish the City and County elected not to extradite Lopez. It found Hoddinott’s supplemental declaration was jurisdictionally time-barred. The City and County gave notice of entry of the order on November 10, 2008.
Seneca filed a notice of appeal on December 4, 2008, which stated “NOTICE IS HEREBY GIVEN that SENECA INSURANCE COMPANY appeals from the order of October 29, 2008, notice of entry of which was given on November 10, 2008, denying the motion to vacate forfeiture and exonerate bail.” The notice of appeal was combined with Seneca’s designation of the record on appeal, which stated no reporter’s transcript was requested and listed pleadings and documents pertinent to its motion to vacate the forfeiture and exonerate the bond for inclusion in the clerk’s transcript.
III. Analysis
A. Overview of Bail Bond Statutes
In People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653 (American Contractors), the Supreme Court summarized the nature of bail bond proceedings. “While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature. (People v. Wilcox (1960) 53 Cal.2d 651, 654....) ‘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.’ (Id. at pp. 656-657; see Stack v. Boyle (1951) 342 U.S. 1, 5... [‘Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused’].) ‘In matters of this kind there should be no element of revenue to the state nor punishment of the surety.’ (Wilcox, at p. 657.) Nevertheless, the ‘bail bond is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant’s appearance in court under the risk of forfeiture of the bond.’ (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22....) Thus, when there is a breach of this contract, the bond should be enforced. (See People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675....)” (American Contractors, at pp. 657-658.)
“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).)” (American Contractors, supra, 33 Cal.4th at p. 658, fns. omitted.)
B. Procedural Bar to Reaching the Merits
As recited in the facts, the trial court granted summary judgment on the bond against Seneca on September 24, 2008, two days after Seneca filed its motion to vacate the bail forfeiture and exonerate the bond, and the clerk completed and served the form “Summary Judgment” and “Demand for Payment” on November 9, 2008. We requested supplemental briefing from the parties on two questions: (1) whether the summary judgment was vacated before the trial court ruled on Seneca’s motion to vacate the bail forfeiture and exonerate the bond and (2) if not, and Seneca did not appeal from that judgment, what impact that has on the instant appeal. Both parties submitted supplemental letter briefs.
As to the first question, whether the summary judgment was vacated, Seneca asserts the parties intended that the summary judgment be vacated. The only document Seneca has provided to the court is an unfiled stipulation, bearing a different criminal case number, signed only by counsel for Seneca and not signed by counsel for the City and County, and not signed or filed by the court. In short, the answer to our first question is, “no,” the summary judgment signed by the trial court on September 24, 2008, and filed on September 25, 2008, was not vacated when the trial court ruled on Seneca’s motion to vacate the forfeiture and exonerate the bond on October 29, 2008.
The procedural consequences of the unvacated summary judgment on Seneca’s motion to vacate the bail forfeiture and exonerate the bond are twofold and bar our consideration of Seneca’s appeal on the merits.
First, absent an order vacating the summary judgment, the trial court had no jurisdiction to rule on Seneca’s motion to vacate the bail forfeiture and exonerate the bond. It is well established that in a civil proceeding a trial court has jurisdiction to entertain only a limited number of motions postjudgment. (See Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1124 [“ ‘Jurisdiction over a cause or parties after a final judgment, order or decree is exceptional and limited to special situations.’ ”].) These include a motion for new trial, for judgment notwithstanding the verdict, to correct clerical error or to vacate the judgment. (See Code Civ. Proc., §§ 473, 629, 657, 663; Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236.) Because no motion to vacate the summary judgment, nor any stipulation to do so, was presented to and granted by the trial court, the court had no jurisdiction to hear and grant Seneca’s postjudgment motion to vacate the bail forfeiture and exonerate the bond. (See Ramon v. Aerospace Corp., supra, 50 Cal.App.4th at p. 1236 [“ ‘Once judgment has been entered... [the court] may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.’ ”].)
Seneca argues in its letter brief the summary judgment, itself, was “void” due to lack of compliance with sections 1305 and 1306 and therefore did not affect the trial court’s power to rule on its motion to vacate the bail forfeiture and exonerate the bond. We disagree pursuant to the Supreme Court’s analysis in American Contractors, supra, 33 Cal.4th at pages 659-665.
In American Contractors, the trial court entered summary judgment on the last day (the 185th day) of the appearance period, which also was a day after the surety filed a timely motion to extend the period. The trial court granted the motion to extend three weeks later, extending the appearance period for another 180 days. (American Contractors, supra, 33 Cal.4th at p. 659.) More than three months after the extended appearance period ran, the surety moved to set aside the summary judgment, vacate the bail forfeiture and exonerate the bond. (Ibid.) The trial court denied the motion. The Court of Appeal and Supreme Court affirmed. (Id. at pp. 660, 666.) The Supreme Court agreed the summary judgment, entered on the last day of the appearance period and after the surety had filed a timely notice to extend the period, was “premature.” (Id. at p. 660.) However, it rejected the surety’s argument the summary judgment was “void” and therefore of no consequence to the trial court’s subsequent ruling on the motion to vacate the bail forfeiture and exonerate the bond. The court held the summary judgment was merely “voidable,” and thus had full force and effect until it was either vacated by the trial court or reversed on appeal. (Id. at pp. 660-665.) The court was unsympathetic to the surety’s argument that had it appealed from the premature summary judgment, the trial court would have lost jurisdiction to hear its subsequent motion to vacate the forfeiture and exonerate the bond. (Id. at p. 664.) As the court explained, the surety had two options: make a motion in the trial court to vacate the premature summary judgment (which very likely would have been granted) or file a notice of appeal to overturn the judgment. (Id. at pp. 664-665.)
Seneca contends America Contractors is not controlling because it involved a summary judgment entered before the initial appearance period expired and before the trial court ruled on the surety’s timely motion to extend the appearance period under sections 1305, subdivision (i), and 1305.4, whereas here, the trial court entered summary judgment before the time had run to rule on Seneca’s timely motion to vacate the bail forfeiture and exonerate the bond under section 1305, subdivision (g). This is a distinction without legal consequence. Just as in American Contractors, the trial court here entered summary judgment in violation of the provisions of the bail bond statutes. But as the Supreme Court explained in American Contractors, this did not “ ‘effect a fundamental loss of jurisdiction, i.e., “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” ’ ” (American Contractors, supra, 33 Cal.4th at p. 662, quoting People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 66.) Rather, the trial court’s premature entry of summary judgment resulted in the judgment being only “voidable” and remaining in full force and effect until vacated by the trial court or reversed on appeal. (American Contractors, at pp. 661-663.)
Secondly, not only did the trial court lack jurisdiction after entry of summary judgment to rule on Seneca’s motion to vacate the forfeiture and exonerate the bond, but Seneca also never appealed from the summary judgment. The summary judgment therefore is final and conclusive, and cannot be collaterally attacked by way of Seneca’s appeal from the denial of its motion to vacate the forfeiture and exonerate the bond.
Invoking the rule that notices of appeal must be liberally construed, Seneca argues it did appeal from the summary judgment. However, the “ ‘rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.’ ” (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625, quoting Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47, citing 9 Witkin, Cal. Procedure (3d ed. 1985), Appeal § 372, p. 374; accord, Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92; Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.) “ ‘[W]here several judgments and/or orders occurring close in time are separately appealable... each appealable judgment and order must be expressly specified-in either a single notice of appeal or multiple notices of appeal-in order to be reviewable on appeal.’ ” (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43-45, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1998) ¶ 3:119.1, p. 3-34 (rev. #1, 1997), italics omitted; see also Cal. Rules of Court, rule 8.100(a)(2) [“The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed....”].)
Here, Seneca’s notice of appeal stated: “NOTICE IS HEREBY GIVEN that SENECA INSURANCE COMPANY appeals from the order of October 29, 2008, notice of entry of which was given on November 10, 2008, denying the motion to vacate forfeiture and exonerate bail.” The notice is plain on its face, and is limited to the October 29, 2008, order denying its motion to vacate the bail forfeiture and exonerate the bond. It makes no mention whatsoever of the summary judgment filed on September 25, 2008. Under the authorities cited above, Seneca’s notice of appeal cannot be read as including an appeal from the summary judgment.
Seneca argues in its letter brief that its notice of appeal should be read as including an appeal from the summary judgment. It asserts that upon receiving Seneca’s notice of appeal, the court clerk called counsel and asked if Seneca intended to also appeal from the summary judgment, counsel said “yes,” and the clerk accordingly handwrote the civil case number above the criminal case number in the caption, followed by the notation “ok per Nunez.” While the clerk’s addition of the civil case number to the caption may have resulted in the notice of appeal being filed in the civil file, as well as the criminal file, it did not alter the substance of the notice of appeal or put the City and County on notice that in addition to appealing from the October 29, 2008, order denying its motion to vacate the forfeiture and exonerate the bond, Seneca also was appealing from the summary judgment filed on September 25, 2008. Indeed, Seneca included in its notice of appeal it’s designation of the record on appeal, and it confined its designation to pleadings and papers pertaining solely to its motion to vacate the forfeiture and exonerate the bail bond. We also note that after receiving the call from the court clerk asking about its notice of appeal, Seneca still had four days from the date the clerk called (December 4, 2008) to file an amended notice of appeal or an additional notice of appeal that included the summary judgment and a correlative record designation, even assuming the clerk’s service of the file-stamped “Summary Judgment” and completion of the “Demand for Payment” (on October 9, 2008) constituted notice to trigger the standard 60-day period to appeal.
Seneca also cites to People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, in support of construing its notice of appeal as including an appeal from the summary judgment. In that case, the insurer purported to appeal from an order denying its motion under section 1305.4 to extend the appearance period. However, such an order is not appealable, and the court therefore deemed the appeal to be from the subsequently entered summary judgment. That is not the procedural situation here. There is no question that the voidable summary judgment entered here was a final, appealable judgment from which Seneca could have appealed.
Seneca argues it never received proper notice of entry of the summary judgment, asserting the clerk’s completion and service of the bottom half of the form order, entitled “Demand for Payment” and which “directed” the surety’s and bond agent’s attention to the “SUMMARY JUDGMENT,” was not service of a document entitled “Notice of Entry” as specified by the Rules of Court. However, the Rules of Court alternatively provide that service of “a file-stamped copy of the judgment” showing the date it was served is sufficient notice to trigger the standard 60-day time period to appeal. (Cal. Rules of Court, rule 8.104(a)(1).) And, in any case, the Rules of Court further provide that, even if formal notice of entry is not given by the clerk or a party, the latest a notice of appeal may be filed is “180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(3).) More than 180 days have passed since the entry of the summary judgment, and no notice of appeal has ever been filed.
No notice of appeal from the summary judgment having been filed, that judgment is now final and conclusive, and is not subject to collateral attack by way of the instant appeal from the order denying Seneca’s motion to vacate the forfeiture and exonerate the bond. (See American Contractors, supra, 33 Cal.4th at p. 660.)
We do not reach the City and County’s argument that the trial court erroneously extended the appearance period to September 20, 2008, and could only extend the period to September 18, 2008, which would have made Seneca’s motion to vacate the forfeiture and exonerate the bond untimely and entry of summary judgment timely. We note the City and County made no such argument in its opposition memoranda filed in the trial court.
IV. Conclusion
For the foregoing reasons, the judgment denying Seneca’s motion to vacate the bail forfeiture and exonerate the bond is affirmed.
We concur: Margulies, Acting P. J., Dondero, J.