Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA074752, Jack P. Hunt, Judge.
Robert W. Hicks & Associates, Robert W. Hicks, and Kenneth R. Wright, for Real Party in Interest and Appellant, Lincoln General Insurance Company.
Raymond G. Fortner, Jr., County Counsel, and Brian T. Chu, Principal Deputy County Counsel, for Plaintiff and Respondent, County of Los Angeles.
MANELLA, J.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Amelia Ramirez (defendant) was arraigned on charges of violating Penal Code section 182, subdivision (a)(1) (conspiracy) and Health and Safety Code section 11351 (possession of narcotics for sale). She pled guilty to a violation of Health and Safety Code section 11351 and posted bail in the amount of $40,000 to secure her presence at the sentencing hearing. Appellant and real party in interest, Lincoln General Insurance Company (Lincoln) supplied the funds for the bond. Defendant failed to appear at the June 23, 2006 sentencing hearing. The court declared the bond forfeited and mailed notice of forfeiture on July 17, 2006.
Statutory references are to the Penal Code, unless otherwise specified.
A. First Motion to Extend
On December 18, 2006, Lincoln moved under section 1305.4 to extend time to vacate the forfeiture and exonerate the bond. In support of the motion, Lincoln submitted the declaration of investigator Emilio Angulo. Angulo stated that he had been assigned the case on August 24, 2006, after a pre-investigation. Angulo attempted to contact defendant at the address and telephone number she had given Lincoln and discovered the telephone disconnected and unrelated persons living at the address, an apartment in Upland. Defendant’s former neighbors in Upland indicated they had not seen her in several months and believed she had moved to Ontario. Angulo called defendant’s three references and discovered all their telephone numbers had been disconnected. Angulo conducted a court check and custody check in Los Angeles and neighboring counties to determine whether defendant had any other active cases, and conducted a number of other database searches. He found no helpful information.
According to Angulo, the pre-investigation unit called courts, checked jails and attempted to contact defendant’s family, friends, employer and co-signors.
Angulo had also tried to contact the indemnitor on the bond, but that individual had failed to return his phone calls. Angulo surveilled the indemnitor’s place of residence, but did not observe either the indemnitor or defendant.
The trial court denied the motion, finding that the declaration was insufficient to establish good cause, noting on the record that Lincoln was no closer to finding defendant than it had been at the beginning of the period, and that the investigator had done little besides “stake[] [the indemnitor] out one time and le[ave] a card.”
B. Second Motion to Extend
In January 2007, Lincoln filed a second motion to extend time on the bail forfeiture, supported by a new declaration from investigator Angulo. The declaration reported that in September 2006, Angulo visited the Upland address given to Lincoln by defendant and was advised by a former neighbor that defendant had moved to an apartment building in Ontario. In October, Angulo spoke with a tenant of the Ontario apartment building and was informed that defendant had been seen there “from ‘time to time.’”
The moving papers were stamped “Received” on January 18, 2007, and “Filed” on January 23, 2007.
In January 2007, Angulo returned to the Ontario address and was informed by the same tenant that defendant had been seen at the apartment complex within the past two weeks, visiting someone who lived there. Defendant’s boyfriend had been with her and the neighbor gave Angulo the boyfriend’s license plate number and a description of his vehicle. Based on this information, Angulo undertook efforts to obtain additional information on defendant’s boyfriend and planned to conduct a surveillance of the Ontario apartment complex.
Angulo also learned that defendant frequented a certain store in Ontario and had applied for county aid for her young son in San Bernardino County. Several witnesses, including a tenant of the Ontario apartment complex and the manager of the store in Ontario, stated that they would contact Angulo if they saw or heard from defendant.
Angulo further stated that in September 2006, he located an address for the indemnitor and in September and October 2006 and January 2007, left messages with the indemnitor’s brother. In January, the indemnitor told his brother that he intended to contact Angulo “in order to provide me with information pertaining to the Defendant,” which Angulo hoped would lead to information regarding defendant’s location.
The court denied the second motion. At the hearing, the court stated that one of Angulo’s primary informants -- the tenant of the Ontario apartment complex -- was “indifferently reliable” and that the information concerning the indemnitor did not “add[] one way” to the case. The court further noted that Angulo had been given one solid lead -- defendant’s boyfriend’s license plate number -- three weeks earlier, but had not been able to use that information to obtain a location for defendant. Accordingly, the court concluded there was no “reasonable likelihood that [Lincoln is] going to be successful in locating this lady even given another hundred eighty days.”
On February 15, 2007, the court entered summary judgment on the bond. Lincoln paid the judgment in full and noticed an appeal.
DISCUSSION
A. Standard of Review
“‘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.’” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657, quoting People v. Wilcox (1960) 53 Cal.2d 651, 656-657.) “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. [Citation.]” (People v. American Contractors Indemnity Co., supra, at p. 657, fn. omitted.)
Once a notice of forfeiture is mailed by the clerk, a surety has 180 days, plus five days for service of the notice of forfeiture by mail, within which to obtain relief from forfeiture or exoneration of bail. (§ 1305, subd. (c); People v. Ranger Ins. Co. (2002) 99 Cal.App.4th 1229, 1232, disapproved in part on other grounds in People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 653.) This 185-day period is often referred to as the “‘appearance’ period.” (Id. at p. 657.) Under section 1305.4, the surety may file a motion for an order extending the 185-day appearance period. The motion must be filed before expiration of the period, but may be calendared to be heard within 30 days thereafter. (§§ 1305, subd. (i), 1305.4.) The 30-day period may be extended by the court upon a showing of good cause. (§ 1305, subd. (i); People v. Ranger Ins. Co. supra, 99 Cal.App.4th at p. 1232.) If the forfeiture is not set aside by the end of the appearance period, the court is required to enter summary judgment against the surety. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657.)
We review the trial court’s denial of a motion to extend under an abuse of discretion standard. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679.) “[S]uch abuse occurs only where the court’s decision ‘“exceeds the bounds of reason, all circumstances being considered.”’” (Id. at pp. 679-680, quoting People v. Froehlig (1991) 1 Cal.App.4th 260, 265.)
B. Timeliness
Although the moving papers for Lincoln’s second motion to extend were submitted to the clerk for filing on January 18, 2007, they were not stamped “Filed” until January 23, 2007. As the last day to file a timely motion to extend was January 18, 2007, respondent contends that the denial of the motion should be sustained on the ground of untimeliness. Respondent did not raise this issue in the proceedings below.
Lincoln states in its reply brief that the papers were in the hands of the court on January 18 and that it paid the necessary filing fee. It cannot explain why the clerk stamped the papers “Filed” on a subsequent date, but contends the stamped date should be given no significance as it was not the result of any fault of Lincoln’s.
The Fourth District faced a similar situation in People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, where the trial court denied the surety’s motion to extend based on an absence of good cause. The hearing on the motion had been held on a date beyond 185 days plus 30 days after the mailing of the notice of forfeiture, and there was nothing in the record to indicate the trial court had formally extended the period within which to hear the motion. Respondent waited until the appeal to raise the issue of untimeliness. Applying the rule that “‘“[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method,”’” the court rejected respondent’s attempt to raise untimeliness for the first time on appeal. (Id. at p. 126, quoting Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.)
We do the same here. Respondent has forfeited the issue of untimeliness by failing to raise it below. Moreover, the record indicates Lincoln submitted the moving papers to the clerk prior to the expiration of the 185-day period. Presentation of papers to the clerk is generally deemed to constitute filing, whatever the clerk may do after receipt. (See United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918 [based on principle that “‘filing’” means “actual delivery of the petition to the clerk at his place of business during office hours,” court deemed petition for writ of review filed, though clerk stamped it “received” and mailed it back to filing party for failure to comply with Rules of Court]; Litzmann v. Workmen’s Comp. App. Bd. (1968) 266 Cal.App.2d 203, 205 [petition deposited for filing on April 17, 1968 and rejected by clerk because of defect, deemed to have been filed on that date]; Mentzer v. Hardoin (1994) 28 Cal.App.4th 1365, 1372 [presentation of arbitrator’s award to deputy clerk constituted the act of filing, although local procedure required arbitrator’s awards to be stamped “filed” only if no request for trial de novo subsequently submitted].) Thus, even were we to reach the issue of timeliness, we would have no basis for finding the motion untimely filed.
C. Requirements of Good Cause
Section 1305.4 provides that a motion to extend the 185-day period must be “based upon good cause” and “include a declaration or affidavit that states the reasons showing good cause to extend that period.” Courts have held that, at a minimum, “establishing ‘good cause’ within the meaning of section 1305.4 requires (1) an explanation of what efforts the surety made to locate the defendant during the initial 180 days, and (2) why such efforts were unsuccessful.” (People v. Alistar Ins. Co., supra, 115 Cal.App.4th at p. 127; accord, People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644; People v. Ranger Ins. Co., supra, 81 Cal.App.4th at p. 681.) In People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349 (Accredited Surety), the court held that not only must the surety demonstrate diligence in attempting to locate and capture the defendant in the initial 185-day appearance period (id. at p. 1356), but it must also establish that there is “a reasonable likelihood of securing the attendance of the absent person” within the extended period (id. at p. 1358; accord, County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1029).
Lincoln contends that sureties should not be required to establish a reasonable likelihood that the defendant will be caught within the extended period, and asks that we not follow the holding in Accredited Surety. The holding was based on the court’s conclusion that a section 1304.5 motion to extend the appearance period is analogous to a motion to continue a trial in order to locate a witness made under section 1050, subdivision (b), under which the court must consider not only whether the moving party exercised due diligence in an attempt to secure the presence of the witness, but also “whether there is a reasonable likelihood of securing the attendance of the absent person.” Accredited Surety, supra, 137 Cal.App.4th at p. 1358.) The court stated: “[The surety cannot] be entitled to another 180 days simply by demonstrating it exerted some effort. The inquiry must be prospective as well as retrospective; otherwise, an extension does not serve the statute’s policy of returning fleeing defendants to custody. That policy is best served by the surety showing that another 180 days might be productive.” (Id. at p. 1357.)
The court in Accredited Surety analyzed the issue correctly. Section 1305.4 was enacted in 1996. (Stats. 1996, c. 354, § 1.) Prior to that time, there was no basis for extending the appearance period unless the defendant was ill, insane or in detention elsewhere. (See People v. Ranger Ins. Co., supra, 81 Cal.App.4th at p. 680.) But section 1305.4 does not give a surety “carte blanche.” (People v. Ranger Ins. Co., supra, 81 Cal.App.4th at p. 682; accord, People v. Ranger Ins. Co., supra, 150 Cal.App.4th at p. 644.) Sureties are expected to undertake reasonable efforts to locate the missing defendant during the initial 185-day appearance period. Therefore, a showing of diligence alone cannot suffice to establish good cause. Additional time should be given only if it appears the defendant has or will be located, and will be returned during the extended period.
D. Lincoln’s Showing
Lincoln contends in the alternative that it demonstrated good cause under the Accredited Surety definition. We disagree. The supporting declaration established that Angulo was diligent. He visited defendant’s former address in Upland several times and obtained information from her former neighbors, including a possible new address in Ontario, the description and license plate number of her boyfriend’s car, and reports that she sometimes visited her former neighbors. Angulo also learned that she had applied for aid for her child in San Bernardino County, and his investigation led him to identify a store in Ontario that she frequented. While this information established that defendant remained in Southern California, none of it led to a location at which she could be found or any reason to believe that she would soon be found.
Lincoln seeks to rely on cases in which courts have reversed the denial of section 1305.4 motions. (See, e.g., People v. Alistar Ins. Co., supra, 115 Cal.App.4th 122; Accredited Surety, supra, 137 Cal.App.4th at p. 1349.) That some appellate courts have found an abuse of discretion in denying a motion to extend under different circumstances does not mandate reversal here. The record reflects that the trial court in concluding an extension was not warranted, was fully cognizant of the guiding legal principles and the evidence. The decision it reached was within the bounds of reason. We perceive no basis for reversal.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J. SUZUKAWA, J.