People v. Allegheny Casualty Co. CA2/1 ( 2021 )

Filed 9/1/21 P. v. Allegheny Casualty Co. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B306969
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. SJ4655
BA476585)
v.
ALLEGHENY CASUALTY
COMPANY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Victoria B. Wilson, Judge. Dismissed.
Law Office of John Rorabaugh, John Mark Rorabaugh and
Crystal L. Rorabaugh, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
____________________________
When a criminal defendant who has been released on
bail fails to appear in court, a 185-day period known as the
“appearance period” (People v. American Contractors Indemnity
Co. (2004) 33 Cal.4th 653, 658 (American Contractors)) must
pass before a court may enter judgment forfeiting the bail. (See
Pen. Code,1 §§ 1305, 1306.) Defendant and appellant Allegheny
Casualty Company (Allegheny) provided a bond for one such
criminal defendant who did not appear within that period.
Allegheny, nonetheless, argues that the court erred in entering
summary judgment of forfeiture because in April 2020, the
Judicial Council enacted an emergency rule in response to the
COVID-19 pandemic tolling all statutes of limitations in civil
cases. Allegheny contends that the appearance period is a
statute of limitations, and that the trial court erred by entering
summary judgment against it while the appearance period was
tolled.
We dismiss the appeal because summary judgment in bail
forfeiture cases is a consent judgment, and is not appealable
when, as here, it was entered pursuant to the terms of the
surety’s consent.
BACKGROUND ON BAIL BOND STATUTES
“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).)
1Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2
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 [extend] the appearance
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.)” (American Contractors, supra, 33 Cal.4th at p. 658,
fn. omitted.) If the forfeiture is not vacated by the time the
appearance period, including any extension, has expired, the trial
court must “enter a summary judgment against each bondsman
named in the bond in the amount for which the bondsman is
bound.” (§ 1306, subd. (a).) If the trial court does not enter
summary judgment “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).)
FACTS AND PROCEEDINGS BELOW
This case involves a relatively straightforward application
of the laws described above. On or around May 17, 2019,
Allegheny, acting through its agent Answer Bail Bonds, posted
a $30,000 bond on behalf of a criminal defendant, Jaime Banegas.
Banegas failed to appear in court as required five days later,
and the trial court declared the bail forfeited. (See § 1305,
subd. (a)(1).) On December 13, 2019, Allegheny filed a motion
to extend the appearance period by 180 days (see § 1305.4), which
the trial court granted. Banegas did not appear in court by the
new June 10, 2020 deadline, and on June 30, the trial court
entered summary judgment against Allegheny in the amount of
the bond. (See § 1306, subd. (a).)
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DISCUSSION
Allegheny contends that the trial court erred by entering
summary judgment because on April 6, 2020, the Judicial
Council enacted emergency rule 9 of the California Rules of
Court, appendix I (emergency rule 9), which provides that,
“[n]otwithstanding any other law, “the statutes of limitations
and repose for civil causes of action that exceed 180 days are
tolled from April 6, 2020, until October 1, 2020.” (Cal. Rules
of Court, appen. I, emergency rule 9(a).)2 On May 29, 2020,
the Judicial Council added an Advisory Committee comment to
the rule explaining that the rule “is intended to apply broadly to
toll any statute of limitations on the filing of a pleading in court
asserting a civil cause of action,” and that “[t]he term ‘civil causes
of action’ includes special proceedings.” (Advisory Com. com,
Cal. Rules of Court, appen, I, emergency rule 9.) Although bail
forfeiture proceedings are connected to criminal cases, the case
law defines them as “special proceeding[s], civil in nature.”
(County of Orange v. Classified Ins. Corp. (1990) 218 Cal.App.3d
553, 557; accord, People v. The North River Ins. Co. (2017) 18
2 A similar provision applied to statutes of limitation and
repose of 180 days or fewer. Under emergency rule 9(b), these
were tolled from April 6, 2020 until August 3, 2020. (See Cal.
Rules of Court, appen. I, emergency rule 9(b).) Section 1305
establishes an appearance period of exactly 180 days, but adds
five more days to account for the time to mail notice of the
forfeiture to the surety. (§ 1305, subd. (b)(1).) We assume that
the appearance period consists of 185 days, including the mailing
period, for purposes of emergency rule 9, but we need not decide
the issue because it makes no difference to the outcome of the
appeal.
4
Cal.App.5th 863, 875.) On this basis, Allegheny argues that
emergency rule 9 applies to Banegas’s forfeiture proceeding, and
that the trial court was barred from entering summary judgment
during the period covered by the rule.
We need not consider the merits of Allegheny’s claim
because the judgment in this case was a consent judgment and
therefore was not appealable. (See County of Los Angeles v.
American Bankers Ins. Co. (1996) 44 Cal.App.4th 792, 795.)
Allegheny contends that the judgment was appealable under
an exception to the rule: The rule applies only where the court
enters judgment “ ‘pursuant to the terms of the consent, which
by its terms requires compliance with the jurisdictional
prescriptions contained in . . . sections 1305 and 1306. If the
judgment is not entered in compliance with the consent given,
the judgment is appealable.’ ” (Ibid., quoting People v. Wilshire
Ins. Co. (1975) 46 Cal.App.3d 216, 219; accord, People v. Surety
Ins. Co. (1985) 165 Cal.App.3d 22, 25, fn. 2.) We do not agree
that the summary judgment in this case was outside the scope
of Allegheny’s consent. Emergency rule 9 did not exist at the
time Allegheny agreed to act as Banegas’s surety, so Allegheny’s
consent could not have been conditioned on the application of the
rule. The trial court entered summary judgment in accordance
with the law as it existed when Allegheny agreed to serve as
surety, and the judgment was consistent with Allegheny’s
consent.
Allegheny seeks to avoid dismissal of the instant appeal
by relying on our Supreme Court’s statement in American
Contractors that “[t]he surety is on notice of the entry of
judgment, and can move to have the judgment set aside or appeal
it.” (American Contractors, supra, 33 Cal.4th at p. 664.)
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Allegheny improperly divorces this quotation from the context in
which it arose.
The issue in American Contractors was whether the surety
could collaterally attack a summary judgment the trial court had
entered one day before the expiration of the appearance period
where the surety had failed to move to set aside that entry of
summary judgment or to appeal it before the judgment became
final. Our Supreme Court held it could not, and in doing so,
expressly rejected the inefficiency and gamesmanship a contrary
rule would have allowed. “[C]ollateral attack on a voidable but
final judgment is not available absent unusual circumstances,
not present in this case, that precluded earlier challenge of the
judgment. Rather, a voidable judgment must be challenged while
the trial court or Court of Appeal can still correct the mistake.
[The surety] concedes . . . it knew the judgment was premature,
and deliberately waited nearly a year until after the time to enter
a timely judgment had passed, before bringing the issue to the
trial court’s attention.” (American Contractors, supra, 33 Cal.4th
at p. 665.) We thus fail to discern how American Contractors
assists Allegheny’s cause here.
Similarly, our conclusion is not contrary to the principle
that bail forfeiture laws “must be strictly construed in favor of
the surety to avoid the harsh results of a forfeiture.” (People v.
Surety Ins. Co., supra, 165 Cal.App.3d at p. 26.) Allegheny could
have filed a motion in the trial court to set aside summary
judgment. If the court had denied the motion, the court’s order
would have been appealable. (See People v. The North River Ins.
Co. (2020) 53 Cal.App.5th 559, 562, fn. 2.) To require Allegheny
to bring its claim in the trial court in order to preserve it for
appeal is not excessively harsh. Instead, it is consistent with the
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fundamental 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.” (13 Witkin, Cal. Procedure (5th ed. 2020)
Appeal, § 400; accord, Gonzalez v. County of Los Angeles (2004)
122 Cal.App.4th 1124, 1131.) This rule exists because “ ‘it would
be unfair to allow counsel to lull the trial court and opposing
counsel into believing the statement of decision was acceptable,
and thereafter to take advantage of an error on appeal although
it could have been corrected at trial. . . . It is clearly
unproductive to deprive a trial court of the opportunity to correct
such a purported defect by allowing a litigant to raise the claimed
error for the first time on appeal.’ ” (Rebney v. Wells Fargo
Bank (1991) 232 Cal.App.3d 1344, 1350.)
The logic of this rule is even stronger in bail forfeiture
proceedings because of the strict time limits applicable in these
cases.3 As we noted above, the trial court is required to enter
summary judgment once the appearance period has expired,
but must act within 90 days. (See § 1306, subds. (a) & (c).)
The time limits are jurisdictional, and if the trial court does not
3 It is also important to keep in mind that summary
judgment is fundamentally different in certain respects in a bail
forfeiture proceeding than in a typical civil action. Unlike in an
ordinary case, where the trial court enters summary judgment
only after both sides have had an opportunity to argue their
positions (see Code Civ. Proc., § 437c), the trial court in a bail
forfeiture proceeding may enter summary judgment on its own
motion when the appearance period expires. Unless the surety
files a motion to contest the entry of summary judgment, the
court will have no idea of any potential defect in the judgment.
7
enter summary judgment within the designated period, it lacks
authority to do so afterward. (See People v. Bankers Ins. Co.
(2021) 65 Cal.App.5th 350, 357–358; American Contractors,
supra, 33 Cal.4th at pp. 662–663.) If the ordinary forfeiture
rule did not apply to bail forfeiture proceedings, it would create
a perverse incentive for sureties to sandbag the trial court by
waiting to point out a simple and easily corrected error in the
trial court’s ruling until the appeal. By the time the Court of
Appeal reversed the judgment and remanded the case to the trial
court, the time limit for summary judgment inevitably would
have expired, and under the terms of the statute, bail would be
exonerated even though the defendant failed to appear before
the end of the appearance period. (See § 1306, subd. (c).) This is
precisely the gamesmanship our high court rejected in American
Contractors.
In this case, for example, Allegheny contends that
emergency rule 9 tolled the appearance period from April 6, 2020
until October 1, 2020, and that the trial court erred by entering
judgment on June 30. If Allegheny is correct regarding the
application of emergency rule 9, an issue we do not decide, then
the appearance period, which would have expired on June 10,
2020, was extended by 179 days, to December 6, 2020. If
Allegheny had objected to the entry of summary judgment on this
basis before the trial court, the court could have corrected the
alleged error and vacated the summary judgment, and then
issued a new summary judgment after Banegas failed to appear
by the extended deadline.4 Instead, Allegheny filed this appeal,
and did not file its opening brief until April 26, 2021, by which
4 Trial court records indicate that Banegas appeared in
court in May 2021.
8
time the 90-day window for entering summary judgment had
closed. The law does not require us to reward Allegheny for using
these tactics.
DISPOSITION
The appeal is dismissed. Respondent is awarded its costs
on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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