Opinion
A151640
09-20-2018
THE PEOPLE, Plaintiff and Respondent, v. SENECA INSURANCE COMPANY, Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CIV01104)
I. INTRODUCTION
Seneca Insurance Company (appellant) appeals from an order of the trial court granting summary judgment on a forfeiture of bail in favor of San Mateo County. Summary judgment was entered while a motion to toll the appearance period pending extradition of the defendant, pursuant to Penal Code section 1305, subdivision (h) (section 1305(h)), was pending. Appellant contends that because the motion was timely and still pending, the trial court entered summary judgment prematurely. Appellant further contends the judgment is voidable and bail should be exonerated. We agree and reverse the order granting summary judgment with an order remanding the matter to the trial court for entry of an order exonerating the bail.
All references will be to the Penal Code unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
On August 28, 2014, appellant, through its agent Jill McKeegan Bail Bonds, posted a bond on behalf of Nidal Shureih (defendant) in the amount of $125,000 for his release. Defendant was charged with felony violations of sections 311.1, subdivision (a), 311.11, subdivision (a), 136.1, subdivision (b)(1), 288.2, subdivision (a)(1), 664/288, subdivision (c)(1), and misdemeanor violation of section 647.6, subdivision (a)(1). On October 15, 2015, defendant pleaded nolo contendere to a violation of section 311.11, subdivision (a) and was ordered to return for sentencing.
On January 12, 2016 defendant failed to appear for sentencing. The court issued a bench warrant for $200,000 and ordered bail forfeited. A Notice of Order Forfeiting Bail was sent to appellant and its agent on January 13, 2016. This triggered a 180-day appearance period for appellant to locate defendant and ensure his appearance in court so that the bond could be exonerated. (§ 1305, subd. (c).) A motion to extend the appearance time was noticed for July 29, 2016. (§ 1305.4.) In support of the motion, the bail agent outlined the efforts made to locate defendant and disclosed that she believed defendant was in Jordan. On August 22, 2016, the court extended the appearance time to February 20, 2017.
On February 21, 2017, the last day of extended time, appellant filed a Motion to Toll Time (the motion to toll) pursuant to section 1305(h). Section 1305(h) authorizes the court to toll the appearance period when a defendant has been located out of the jurisdiction and the district attorney's office intends to extradite the defendant. Appellant argued defendant had been located in Jordan and appellant could not do anything further to secure defendant's appearance in court until the San Mateo County District Attorney's Office completed the extradition process. Respondent responded that more was required than locating defendant in Jordan and that relief was available under section 1305(h) only if appellant demonstrated that they met the specific conditions outlined in section 1305, subdivision (g) which, county counsel argued, they had not.
February 20, 2017 was a court holiday and the appearance period was extended to February 21, 2017, the next regular business day for the court. (See Code Civ. Proc., § 12a.)
On March 10, 2017, the court entered summary judgment. On April 13, 2017, appellant filed a supplemental memorandum of points and authorities to the motion to toll, arguing that the entry of summary judgment was premature because the motion was still pending and the time for entry of summary judgment had not yet started to run. Appellant requested that the court vacate summary judgment. Respondent filed a supplemental opposition to the motion to toll on May 15, 2017 but did not respond to appellant's argument that summary judgment was premature.
The matter came on for hearing on April 27, 2017. The parties did not argue the motion. The court took the matter under submission to issue a tentative. The trial court denied the motion on June 13, 2017. The court did not address the issue of the timing of the entry of summary judgment in its tentative ruling and the parties did not present argument on this issue at the hearing. This appeal followed.
III. DISCUSSION
A. Statutory Framework for Bond Forfeiture Proceedings
" 'The statutory scheme governing bail forfeitures is found in . . . 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.]' [Citation.] Where the bail statues ' " 'requires[] a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to perform subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.' " ' [Citations.] Because of the harsh results of a forfeiture and the jurisdictional nature of statutory compliance, appellate courts carefully review the record to ensure strict statutory compliance. [Citation.]" (People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 998-999 (U.S. Fire).)
Section 1305, subdivision (a) requires the trial court to declare a forfeiture of bail if a defendant fails to appear at a specified court proceeding without a satisfactory excuse. 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 to court. (§ 1305, subd. (b)-(c).) If the defendant appears within that period, the court must vacate the forfeiture and exonerate the bond. (§ 1305, subd. (c)(1).) Upon a showing of good cause, the surety may seek an extension of a maximum of 180 additional days. This is often known as the "appearance period." (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658.) If the defendant is brought to court during the appearance period, the forfeiture must be vacated and the bond exonerated. (People v. Tingcungco (2015) 237 Cal.App.4th 249, 253.)
If the appearance period has elapsed without the forfeiture having been set aside, the trial court must enter summary judgment against the surety within 90 days or the bond is exonerated. (§ 1306, subd. (a) & (c).) There is a 30-day tail period after the expiration of the appearance period within which the court may hear a timely filed motion to set aside the forfeiture or toll the appearance period. " 'A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. The court may extend the 30-day period upon a showing of good cause . . . .' " (§ 1305, subd. (j) [former subd. (i)]; People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 762, fn. 5 (Granite State).)
Section 1306, subdivision (c) provides the following: "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."
If a defendant flees to a foreign country, the surety may seek an order tolling the appearance period pursuant to section 1305(h). In order to get relief under section 1305(h), the surety must make a showing that the conditions outlined in section 1305, subdivision (g) have been met. Section 1305(h) states: "In cases arising under subdivision (g), if the bail agent and the prosecuting agency agree that additional time is needed to return the defendant to the jurisdiction of the court, and the prosecuting agency agrees to the tolling of the 180-day period, the court may, on the basis of the agreement, toll the 180-day period within which to vacate the forfeiture. The court may order tolling for up to the length of time agreed upon by the parties." (Italics added.)
Section 1305, subdivision (g) provides, in relevant part, "In all cases of forfeiture where a defendant is not in custody and is beyond the jurisdiction of the state, is temporarily detained, by the bail agent, in the presence of a local law enforcement officer of the jurisdiction in which the defendant is located, and is positively identified by that law enforcement officer as the wanted defendant in an affidavit signed under penalty of perjury and the prosecuting agency elects not to seek extradition . . . the court shall vacate the forfeiture and exonerate the bond . . . ."
B. Standard of Review
The burden is upon the bonding company seeking to set aside the forfeiture to establish by competent evidence that its case falls within the four corners of the statutory requirements. (People v. International Fidelity Ins. Co. (2018) 20 Cal.App.5th 345, 354.) " ' " 'The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citation.] Thus, [the bail forfeiture statutes] must be strictly construed in favor of the surety to avoid the harsh results of forfeiture. [Citation.]' " ' [Citation.]" (Id. at pp. 353-354)
Here, the facts are not in dispute and we consider only legal issues. In this circumstance, we conduct an independent review of the issues before us. (U.S. Fire, supra, 242 Cal.App.4th at p. 999.)
C. Summary Judgment Was Premature
Appellant contends that the summary judgment was prematurely entered in violation of section 1306, subdivision (a) and should have been set aside by the trial court. We agree. The motion was timely filed on February 21, 2017, the last day of the appearance period and section 1305, subdivision (j) is clear that if a motion is filed in a timely manner within the 180-day period, the trial court may hear the motion within 30 days of the expiration period and extend the 30-day period for good cause.
This issue has been addressed in several cases starting with People v. Wilcox (1960) 53 Cal.2d 651 (Wilcox) which involved forfeiture of the bond of a defendant who was unable to appear in court because he was ill. After several continuances, it was determined that the defendant would be unable to appear for an indefinite period of time. The court vacated the forfeiture and exonerated the bail. (Id. at pp. 653-654.) The People appealed and argued that the court lacked jurisdiction to set aside the forfeiture because section 1306 required the entry of summary judgment 90 days following the order of forfeiture and the 90-day period had passed. (Id. at p. 657.) The Supreme Court rejected that argument and found that, "If relief may be applied for at any time within the 90-day period certainly the court [cannot] be expected to act on the application before the end of the period. Section 1306 [cannot] be construed to require a summary judgment when the court has pending before it an application for relief under section 1305 at the end of the 90-day period." (Ibid.)
Granite State, supra, 114 Cal.App.4th 758 presented a similar issue. The court addressed the time period when the trial court is authorized to enter summary judgment. In Granite State, bail was forfeit when the defendant failed to appear in court. The surety filed a motion to vacate the forfeiture before the expiration of the appearance period and noticed a hearing within 30 days after the expiration of the appearance period as required by section 1305, subdivision (i) (now subdivision (j)). The motion was continued several times for good cause and was heard well beyond 90 days after the date to which the appearance period was extended. The motion was denied and summary judgment entered within 90 days of the denial. (Granite State, at pp. 761-762.) On appeal, the surety contended that the court was required to enter summary judgment within 90 days of the expiration of the appearance period despite the fact that the motion to vacate the forfeiture was pending. The court framed the issue as follows: "[W]e are required to determine the date upon which summary judgment 'may first be entered' when, as in this case, the surety has filed a motion to vacate the forfeiture before the expiration of the exoneration period, but the motion is decided after the expiration of that period." (Id., at p. 764.) The court held that the key language in determining when summary judgment may first be entered when a motion is pending is "without the forfeiture having been set aside" found in section 1306, subdivision (a). (Granite State, at p. 764.) The court reasoned that if a motion has been filed to vacate the forfeiture during the exoneration period a trial court may yet decide to set aside the forfeiture and until the motion is denied, the 180 days plus the extension of time specified in section 1305 cannot have " 'elapsed without the forfeiture having been set aside.' [Citation.]" (Granite State, at p. 764.) No court had analyzed section 1305 and section 1306, subdivision (a) in this context. The court found support for its reasoning in County of Sacramento v. Insurance Co. of the West (1983) 139 Cal.App.3d 561 and Wilcox, supra, 53 Cal.2d 651. (Granite State, at p. 765; see also People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1076 (Aegis) ["If Aegis's statutorily authorized motion to extend the appearance period did not postpone the date on which the trial court could first enter summary judgment, the motion would be futile. Such a construction of section 1305.4 would contravene the mandate to strictly construe the bail forfeiture statues in favor of the surety."].)
More recently in U.S. Fire, supra, 242 Cal.App.4th at page 1003, the court, citing Granite State and Aegis, found that "the summary judgment was entered before the hearing on the motion for an extension, while said motion was pending. Consequently, the summary judgment entered in this matter . . . was prematurely and improperly entered in violation of section 1306, subdivision (a) . . . . Surety is correct that the trial court not only erred by entering summary judgment against Surety while the timely extension motion was pending, but it further erred by failing to set aside the summary judgment once Surety pointed out the court's mistake in a timely motion for relief." (Fn. omitted.)
In opposition to appellant's argument that summary judgment was premature, respondent states that appellant did not file a motion for relief from forfeiture but instead filed a motion to toll the appearance period. Respondent does not offer any analysis or authority to explain the distinction or the legal effect this has, if any, on the timing of the entry of summary judgment. Respondent simply goes on to argue that the summary judgment was properly entered because conditions for relief under section 1305, subdivision (g) were not met before the motion was filed.
After analyzing the moving papers, respondent concludes that appellant never stated defendant was detained in Jordan in the presence of local law enforcement and the parties could never have entered into an agreement to toll the appearance period. According to this logic, the period for summary judgment began to run on February 22, 2017 and summary judgment was timely entered on March 10, 2017. Respondent's argument is the filing of an unmeritorious motion was a nullity or could not be considered a "motion filed in a timely manner" within the meaning of section 1305, subdivision (j). The issue before us is not the merits of the motion, but rather the timing of the entry of summary judgment. To suggest that the motion to toll does not fall within section 1305, subdivision (j) is contrary to its plain meaning. When assigned the task of statutory interpretation, we are generally guided by the express words of the statute. (Granite State, supra, 114 Cal.App.4th at p. 763.)
When appellant filed the motion to toll, one extension of 180 days had been granted so the motion at issue falls under section 1305, subdivision (j).
Section 1305, subdivision (j) provides that a "motion" filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the extended period. It does not specify the type or title of motion and the only limitation is that the motion can only be made by parties specified in the statute. There is no reason for this court to interpret the statute as excluding motions to toll the appearance period. The purpose of the appearance period, the additional 180 days under section 1305.4 or 30 days after the expiration of the extended period to hear a motion, is to give the surety every opportunity to avoid forfeiture. The purpose and effect of the motion to toll the appearance period is the same as that of a motion to extend the appearance period: forestall forfeiture until the defendant can be brought to court.
People v. International Fidelity Ins. Co., supra, 20 Cal.App.5th 345, recently decided by Division Two of this court considered an appeal from a motion to toll the appearance period in the same procedural posture as this case. Bail was forfeited after the defendant failed to appear. The defendant was located in Mexico and the surety filed a motion to toll time the day before the expiration of the extended appearance period. (Id. at pp. 351-353.) The court took no issue with the timing of the motion or the nature of the relief requested. It is worth noting that despite the finding that the surety had not met the conditions for relief under section 1305, subdivision (g) and (h), the court reversed the summary judgment and exonerated bail because the summary judgment was premature. (International Fidelity Ins. Co., at p. 375.)
An interpretation which concludes that all motions timely filed must be decided before summary judgment may be entered, is consistent with the statutory scheme of bail forfeiture in general and section 1305, subdivision (j) specifically. It is also consistent with the legislative intent that bail forfeiture statues must be strictly construed in favor of the surety to avoid the harsh results of forfeiture. (People v. Ranger Ins. Co. (2000) 77 Cal.App.4th 813, 816.)
D. The Premature Summary Judgment Is Voidable
Appellant contends that the premature summary judgment requires that we reverse the summary judgment and exonerate the bail. We agree. The nature of the relationship created by a bail bond is contractual and governed by statute. (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552.) As discussed above, the statutory scheme regarding forfeiture of bail is set forth in section 1305 et seq. The surety is given 185 days from the date the notice of forfeiture is mailed and that may be extended 180 additional days upon a showing of good cause. (§§ 1305, subd. (b)(1) & (c)(1), 1305.4; People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025, 1030.) In People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653 (American Contractors), the Supreme Court determined that a premature summary judgment is voidable, not void, and that it can be attacked by a timely filed motion to vacate the judgment, on direct appeal from the judgment, and by collateral attack. (Id. at p. 657.) In American Contractors, summary judgment was entered on a forfeited bond on the day before the appearance period expired. The surety filed an untimely motion to set aside the summary judgment almost a year after entry. The trial court denied the motion because, among other grounds, the surety did not timely raise the issue of prematurity. (Id. at pp. 659-660.) The Supreme Court affirmed, characterizing the untimely motion and appeal as a collateral attack and concluded that the premature summary judgment "was subject to correction by appeal or a timely motion to vacate the judgment," but suggested that a collateral attack was not likely to be successful. (Id. at p. 657.)
In U.S. Fire, supra, 242 Cal.App.4th 991, the surety heeded the court's guidance in American Contractors and filed a motion to vacate and a direct appeal following the entry of a premature judgment. Summary judgment was filed while a motion for an extension of the appearance period was pending. The court agreed summary judgment was premature and the consequences were that it was voidable and "subject to being set aside upon a timely challenge in the trial court and/or a timely appeal from the summary judgment." (Id. at p. 1003.) In the case before us, summary judgment was entered while the motion to toll was pending and was therefore premature. Respondent has not raised any issues which would prevent setting aside summary judgment. Applying the principles of American Contractors and U.S. Fire, we conclude that the summary judgment should be corrected on appeal or reversed. (American Contractors, supra, 33 Cal.4th at p. 657.)
The forfeiture date and the dates establishing the appearance period are not in dispute.
E. Section 1306, Subdivision (a) Requires that the Bond Be Exonerated
Compliance with the terms of section 1306, subdivision (a) requires that we exonerate the bond. Section 1306, subdivision (a) requires that the court enter summary judgment within 90 days of the expiration of the appearance period. Section 1306, subdivision (c) expressly provides that if 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. Here, summary judgment was entered on March 10, 2017. The motion to toll the appearance period was not decided until May 26, the date the appearance period ended. The 90-day period for summary judgment commenced May 27 and ended August 25, 2017. Summary judgment was not entered during that 90-day period and the right to do so expired. It is no longer possible to enter a proper summary judgment within the statutorily mandated time because that period has expired. (See U.S. Fire, supra, 242 Cal.App.4th at p. 1011.) Accordingly, bail must be exonerated.
IV. DISPOSITION
The summary judgment is reversed. The matter is remanded with directions that the trial court will enter an order setting aside the summary judgment and exonerating the bond.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, 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.