People v. North River Ins. Co. CA2/4 ( 2020 )

Filed 10/2/20 P. v. North River Ins. Co. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B294357
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. OSJ1907)
v.
NORTH RIVER INSURANCE CO.
et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Maame Frimpong, Judge. Affirmed.
Jefferson T. Stamp for Defendants and Appellants.
Mary Wickham, County Counsel, Adrian G. Gracas
and Yuan Chang, Deputy County Counsel for Plaintiff and
Respondent.
INTRODUCTION
Appellant The North River Insurance Company (North
River) posted a bail bond through its agent, appellant Bad
Boys Bail Bonds (Bad Boys), for the release of a criminal
defendant. After the defendant, without excuse, failed to
appear, the superior court declared the bond forfeited. Once
the court mailed appellants notice of the forfeiture, they had
about 180 days to either produce the defendant or move to
vacate the forfeiture. Appellants sought and obtained an
extension of time to produce the defendant. After appellants
still had not produced the defendant, and had not sought a
second extension or other relief from forfeiture, a different
judge of the superior court entered summary judgment on
the bond under Penal Code section 1306.1 Appellants
noticed an appeal, but later abandoned it.
Several months after the judgment became final,
appellants moved to set it aside, arguing it was void because
the judge who rendered it was not the same judge who
declared the forfeiture. The trial court denied their motion.
On appeal, appellants argue that having a different
judge render judgment on the bond both deprived them of
due process and violated their rights under section 1306. In
addition, relying on a discrepancy between the superior
court’s extension order and the “conformed copy” of the order
they had received from the court, appellants argue for the
first time in this appeal that the court entered summary
1 Undesignated statutory references are to the Penal Code.
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judgment prematurely. We reject their contentions and
affirm.
BACKGROUND
A. The Bail Bond and the Forfeiture
In December 2014, Bad Boys, acting as North River’s
agent, posted a $30,000 bail bond for the release of criminal
defendant Minghui Li. On July 30, 2015, Li failed to appear
for a preliminary hearing, and his attorney could not provide
an excuse for his absence. Thus, Judge Michael Villalobos,
who presided over the hearing, declared the bond forfeited,
and the court mailed a notice of forfeiture to both appellants
on August 20, 2015. Under section 1305, subdivisions (b)-(c),
appellants then had 185 days to either produce Li or move to
vacate the forfeiture. That period -- often referred to as “‘the
appearance period’” (People v. Financial Casualty & Surety,
Inc. (2017) 10 Cal. App. 5th 369, 377) -- was set to expire on
February 21, 2016.
B. The Superior Court’s Extension of the
Appearance Period
A few days before the appearance period was to expire,
appellants moved for an extension, requesting an additional
180 days from the date of any order granting their motion,
as section 1305.4 allows on a showing of good cause. They
submitted a proposed order providing for an extension of
“____ days from the date of this order to _____ ,” leaving the
number of days and the resulting date blank. On March 18,
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2016, the court granted appellants an extension, filling in
the blanks in the proposed order to provide for an extension
of “180 days from the date of this order to 8-19-16 .”
However, August 19 was actually 180 days from February
21, the date the initial appearance period expired; 180 days
from the court’s order would have been September 14.
Rather than the court’s original order, appellants received a
“conformed copy,” which stated only that the court granted
the extension to August 19, leaving the number of days
blank.
C. The Summary Judgment, Appellants’ Prior
Appeal, and Their Subsequent Motion to Set
Aside the Judgment
On September 9, 2016, after appellants failed to
produce Li and filed no additional motions, then-Judge
Dorothy Kim rendered summary judgment on the bond
under section 1306, subdivision (a).2 Appellants filed a
notice of appeal, and on August 22, 2017, filed the record on
appeal. It is undisputed that the record included the
2 Section 1306, subdivision (a), which we discuss more fully
below, provides: “When any bond is forfeited and the period of
time specified in Section 1305 has elapsed without the forfeiture
having been set aside, the court which has declared the forfeiture
shall enter a summary judgment against each bondsman named
in the bond in the amount for which the bondsman is bound. The
judgment shall be the amount of the bond plus costs, and
notwithstanding any other law, no penalty assessments shall be
levied or added to the judgment.” (Ibid.)
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superior court’s original extension order. After appellants
failed to file an opening brief, this court dismissed the appeal
as abandoned, and in January 2018, the remittitur issued
(B278924).
In September 2018, appellants filed a motion to set
aside the summary judgment, arguing that it was void
because the judge who signed it (Judge Kim) was not the
same judge who declared the bond’s forfeiture (Judge
Villalobos). Following a hearing, the trial court denied the
motion. This appeal followed.
DISCUSSION
Appellants challenge the trial court’s denial of their
motion to set aside the judgment, renewing their argument
that the judgment is void because the judge who signed it
was not the same judge who declared the bail bond’s
forfeiture. Alternatively, appellants contend for the first
time that the court entered summary judgment prematurely,
and that the judgment is therefore voidable.
Appellate courts generally review an order denying a
motion to vacate the forfeiture of a bail bond for abuse of
discretion. (People v. International Fidelity Ins. Co. (2012)
204 Cal. App. 4th 588, 592.) The same standard applies in
the context of an order denying a motion to set aside
summary judgment on a bond. (Ibid.) But where, as here,
the facts are undisputed and we must decide only legal
issues, such as jurisdictional questions and matters of
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statutory interpretation, we review the trial court’s order de
novo. (Ibid.)
A. The Judge Who Renders the Summary
Judgment Need Not Be the Same Judge Who
Declared the Bond’s Forfeiture
Appellants argue the summary judgment is void
because the judge who rendered it was not the same judge
who declared the bail bond’s forfeiture. They claim having a
different judge render the summary judgment violated both
their constitutional right to due process and section 1306’s
mandate.
“‘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.’” (People
v. United States Fire Ins. Co. (2015) 242 Cal. App. 4th 991,
998-999.) When a surety posts a bail bond, it must
contractually agree that if the court declares the forfeiture of
the bond, judgment on the bond “may be summarily made
and entered forthwith . . . as provided by Sections 1305 and
1306.” (§ 1278, subd. (a) [before indictment], §1287, subd. (a)
[after indictment].)
Section 1305, subdivision (a), requires the court to
declare the forfeiture of the bond if a defendant fails to
appear at a specified court proceeding without sufficient
excuse. (Ibid.) In most cases, the surety is then given 185
days from the mailing of notice of the forfeiture to return the
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defendant to court or move to vacate the forfeiture. (§ 1305,
subds. (b)-(c).) The court may grant the surety up to 180
additional days to deliver the defendant on a showing of good
cause. (§ 1305.4.)
If the defendant is brought to court during this
appearance period, the court must vacate the forfeiture and
exonerate the bond. (§ 1305, subd. (c)(1).) On the other
hand, if “the period of time specified in Section 1305 has
elapsed without the forfeiture having been set aside, the
court which has declared the forfeiture shall enter a
summary judgment against each [surety].” (§ 1306, subd.
(a).)
“A summary judgment in a bail forfeiture is a consent
judgment entered without a hearing and the proceedings are
not adversarial.” (People v. American Contractors Indemnity
Co. (2015) 238 Cal. App. 4th 1041, 1047 (ACI I).) As a consent
judgment, the summary judgment is not appealable, except
to the extent it violates the terms of the consent. (People v.
Wilshire Ins. Co. (1975) 46 Cal. App. 3d 216, 219 (Wilshire).)
Thus, “[t]he only issue in a challenge to the summary
judgment is whether it was entered pursuant to the terms of
the consent, which requires compliance with Penal Code
sections 1305 and 1306.” (ACI I, supra, at 1047.)
Appellants argue it is a denial of due process for a new
judge to render the summary judgment without having
heard all the evidence. However, their constitutional
argument is misguided. Appellants may challenge the
procedure the superior court employed in entering the
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summary judgment -- a consent judgment -- only to the
extent it violated the terms of their consent. (See ACI I,
supra, 238 Cal.App.4th at 1047.) As their due process
challenge to the entry of judgment does not relate to the
terms of their consent, it is improper. (See ibid.; Wilshire,
supra, 46 Cal.App.3d at 220.)
Moreover, if appellants’ argument were cognizable, we
would not find it persuasive. Under section 1306, the court
must enter summary judgment on the forfeited bond if the
appearance period “has elapsed without the forfeiture
having been set aside. . . .” (§ 1306, subd. (a).) Thus, the
only relevant “evidence” the court need consider is whether
the appearance period has expired and whether the
forfeiture has been set aside. Any information the judge who
declared the forfeiture learned at the hearing at which the
defendant failed to appear is irrelevant to the entry of
summary judgment. Accordingly, appellants cannot
establish a violation of due process.
Appellants’ statutory argument fares no better. They
contend section 1306 itself requires that the same judge who
declared the forfeiture also render the judgment, asserting
that this provision’s reference to “‘the court which has
declared the forfeiture’” actually refers to “‘the judge’” who
has declared the forfeiture. In support, appellants cite cases
for the proposition that the Legislature sometimes uses the
terms “court” and “judge” interchangeably, and that it is “the
character of the act” that determines which of the two it
actually intended. (Newby v. Bacon (1922) 58 Cal. App. 337,
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339.) Yet the character of the entry of summary judgment in
bond forfeiture proceedings -- a summary procedure with no
hearing or consideration of substantive evidence -- supports
the conclusion that the judge who renders judgment need
not be the same judge who declared the forfeiture up to one
year earlier.
Furthermore, when the Legislature anticipates that
the same judge will perform multiple acts, it says so. (See,
e.g., Code Civ. Proc., § 635 [“when the judge who heard or
tried the case is unavailable,” the presiding judge or another
designated judge may sign the judgment or order under
certain conditions]; id., § 1170.95(b)(1) [“If the judge that
originally sentenced the petitioner is not available to
resentence the petitioner, the presiding judge shall designate
another judge”]; id., § 1170.18, subd. (l) [“If the court that
originally sentenced the petitioner is not available, the
presiding judge shall designate another judge”].) Appellants
point to no statutory provision that has been construed to
require that the same judge carry out an act when it merely
refers to “the court,” as section 1306 does.3
3 People v. Frontier Pacific Ins. Co. (2000) 83 Cal. App. 4th
1289, 1295, cited by appellants, is inapposite. That case holds
only that “a judge,” and not the clerk of the court, must sign the
summary judgment on the bail bond. (Id. at 1294-1295.)
Similarly inapposite is appellants’ reference to Honchariw v.
County of Stanislaus (2013) 218 Cal. App. 4th 1019, 1034, which
explains that “[t]he Legislature’s use of the definitive article ‘the’
. . . refers to a specific person or thing.” (Ibid.) There is no
question that section 1306 refers to either a specific person (i.e.,
(Fn. is continued on the next page.)
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Finally, section 1306’s legislative history confirms that
it concerns the court itself, rather than an individual judge.
Before 2013, section 1306 stated, “[T]he court which has
declared the forfeiture, regardless of the amount of the bail,
shall enter a summary judgment . . . .” (Former § 1306,
subd. (a).) A 2012 amendment omitted the words “regardless
of the amount of bail.” (Stats. 2012, ch. 470 (Assem. Bill No.
1529 (2011-2012 Reg. Sess.) § 50.) The Law Revision
Commission Comment on the 2012 amendment explains:
“Subdivision (a) of Section 1306 is amended to delete
language that is obsolete due to trial court unification.
Before unification, it was necessary to make clear that a
municipal court was authorized to enter summary judgment
on a bail forfeiture even though the amount of bail exceeded
the jurisdictional limit of the municipal court. [Citations.]
Because municipal courts no longer exist and the superior
court has no jurisdictional limit, that language is no longer
needed.” (Cal. Law Revision Com. com., 51 West’s Ann. Pen.
Code (2020 supp.) foll. § 1306, p. 187.) The Commission’s
comments are entitled to substantial weight. (HLC
Properties, Ltd. v. Superior Court (2005) 35 Cal. 4th 54, 62.)
The historical context they provide shows the Legislature
the judge) or a specific thing (i.e., the court); the question is only
which of the two. As explained, we conclude it is the latter.
Finally, their reliance on Bankers Ins. Co. v. State (La.Ct.App.
1999) 743 So. 2d 870, 872 is likewise unavailing, as that case
involved a Louisiana statute, and the court’s decision turned on
legislative history unlike that of section 1306.
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was concerned with preventing the transfer of a bond
forfeiture proceeding to a different court, not to a different
judge. The Commission’s comments therefore confirm that
section 1306 refers to “the court” as an entity, rather than to
a particular judge.
In short, neither due process nor section 1306 requires
that the same judge who declared the forfeiture also render
the summary judgment.4 Accordingly, the judgment is not
void.
B. Appellants’ Claim That the Summary
Judgment Was Premature is Untimely
Appellants contend the superior court’s September 9,
2016, summary judgment on the bail bond was premature.
They assert that by purporting to extend the appearance
period by 180 days from the date of the court’s order, the
court extended that period to September 14, rather than
August 19, the date the court’s order provided.
We conclude appellants’ challenge is untimely. A
premature summary judgment is entered in excess of
jurisdiction and is thus voidable through an appeal or a
motion to vacate before the judgment becomes final. (People
4 After this case was submitted, our colleagues in Division
Seven concluded that summary judgment on a bail bond need not
be rendered by the same judge who declared the forfeiture.
(People v. The North River Ins. Co. (2020) 53 Cal. App. 5th 559.)
As discussed above, we agree.
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v. American Contractors Indemnity Co. (2004) 33 Cal. 4th
653, 661-663 (ACI II).) But once the judgment becomes final,
it may not be challenged as premature “unless ‘unusual
circumstances were present which prevented an earlier and
more appropriate attack.’” (Id. at 661.) The summary
judgment on appellants’ bond became final in January 2018,
when the remittitur issued in their prior appeal. (See, e.g.,
McKee v. National Union Fire Ins. Co. (1993) 15 Cal. App. 4th
282, 287 [judgment becomes final “after an appeal is
concluded or the time within which to appeal has passed”].)
Thus, they may not now challenge the judgment as
premature. (See ACI II, supra, 33 Cal.4th at 661.)
Pointing to the discrepancy between the superior
court’s original extension order and the “conformed copy”
they received, appellants argue that the latter’s omission of
the 180-days-extension language prevented them from
challenging the judgment as premature before it became
final. We disagree.
It is undisputed that appellants were in possession of
the court’s original order no later than August 22, 2017, as it
was part of the record they filed on that date in their prior
appeal. They therefore had the information at the heart of
their current claim in their possession months before the
judgment became final. Accordingly, no unusual
circumstances prevented appellants from raising their
challenge in a timely manner. (Cf. County of Los Angeles v.
Financial Casualty & Surety Inc. (2015) 236 Cal. App. 4th 37,
44 [attorney established surprise and excusable neglect
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under Code Civ. Proc. § 473 where he “had no reason to
suspect that he had been misinformed” by court staff].)
Their claim that the judgment was premature is thus
untimely. (See ACI II, supra, 33 Cal.4th at 661.)
Moreover, were we to consider appellants’ claim, we
would reject it. Regardless of any miscalculation or drafting
oversight in the superior court’s order, the court provided an
extension to a date certain (August 19, 2016). Appellants
neither challenged that date as erroneous nor sought an
additional extension. Because the court entered judgment
on the bond after the date of the extension, the judgment
was not premature. (See § 1306, subd. (a).)
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DISPOSITION
The trial court’s order is affirmed. Respondent is
awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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