People v. The North River Ins. Co. CA2/8

Filed 9/24/20 P. v. The North River Ins. Co. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
THE PEOPLE, B297118
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. OSJ2121
v.
THE NORTH RIVER INSURANCE
COMPANY et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Victoria B. Wilson, Judge. Affirmed.
Jefferson T. Stamp for Defendants and Appellants.
Mary C. Wickham, County Counsel, Adrian G. Gragas,
Assistant County Counsel, and Kelsey C. Nau, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
In this bail forfeiture case, The North River Insurance
Company and Bad Boys Bail Bonds appeal an order denying their
motion to set aside summary judgment, vacate forfeiture, and
exonerate bail. Appellants contend the motion should have been
granted because the judgment is void as it was not entered by the
same judge who forfeited the bail in the first instance. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 28, 2017, appellant Bad Boys Bail Bonds,
acting as agent for appellant The North River Insurance
Company, posted a bail bond in the amount of $50,000 for
defendant Gregorio Garcia. The bond was filed on March 3, 2017,
securing Garcia’s release.
On March 21, 2017, Garcia failed to appear and in open
court Commissioner Harkavy ordered the bond forfeited. On May
23, 2018, Judge Christopher Lui entered summary judgment
against appellants based on Commissioner Harkavy’s order of
forfeiture. On November 15, 2018, appellants filed a motion to
set aside summary judgment, vacate forfeiture, and exonerate
the bond. On February 15, 2019, Judge Victoria B. Wilson denied
the motion.
This timely appeal followed.
DISCUSSION
The trial court’s denial of a motion to set aside an order of
forfeiture is reviewed for abuse of discretion. When the facts are
undisputed and only legal issues are involved, we conduct an
independent review. (People v. International Fidelity Ins. Co.
(2012) 204 Cal. App. 4th 588, 592.)
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Forfeiture of bail is governed by Penal Code sections 1305
and 1306.1 As a general rule, failure of a defendant to appear
without sufficient excuse requires entry of such fact upon the
minutes of the court, and an immediate forfeiture of the bail with
prompt notice to the surety and its agent. (§ 1305, subd. (a).)
After the bail bond is declared forfeited by the trial court, the bail
agent is provided 180 days (plus five additional days when the
notice is served by mail) to produce the defendant and reinstate
or exonerate the forfeited bond. (Id., subd. (b).) This is the
“appearance period.” The court may extend the appearance
period for up to an additional 180 days from its initial forfeiture
order. (§ 1305.4; People v. Financial Casualty & Surety, Inc.
(2016) 2 Cal. 5th 35, 43.) If the defendant is brought to court
during the appearance period, the forfeiture must be vacated and
the bond exonerated. (§1305, subd. (c)(1); People v. Tingcungco
(2015) 237 Cal. App. 4th 249, 253.)
If the appearance period closes without defendant’s
appearance or a set aside of the forfeiture, section 1306,
subdivision (a) compels the trial court to enter summary
judgment against the bail agent. Indeed, the bail bond itself
expressly sets out the agent’s consent that “judgment may be
summarily made and entered forthwith . . . for the amount of its
undertaking herein as provided by Sections 1305 and 1306 of the
Penal Code.” Entry of 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.) Because the surety
consents to judgment pursuant to the governing statutes, the
1 All further undesignated statutory references are to the
Penal Code unless otherwise indicated.
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“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.” (Ibid.)
There Is No Requirement That Only the Judge Who Heard
the Evidence May Enter Judgment Pursuant to Section
1306, Subdivision (a).
Appellants argue that only Commissioner Harkavy, the
bench officer who ordered the bond forfeited, had the authority to
enter judgment against them under section 1306, subdivision (a).
Relying on European Beverage, Inc. v. Superior Court (1996)
43 Cal. App. 4th 1211 (European Beverage), appellants argue that
the judge who “heard the evidence” must also be the judge who
enters judgment.
European Beverage involved a bifurcated bench trial where
the judge who made initial factual findings on the equitable
issues became unavailable to hear the remaining legal issues.
The successor judge would have had to rely on factual findings
made by the initial judge to complete the trial. The Court of
Appeal held the parties were entitled to have the same trier of
fact make the final decision because an interlocutory ruling can
be changed up until entry of the final order. (European Beverage,
supra, 43 Cal.App.4th at pp. 1213–1214.) Thus, when the judge
who heard the evidence becomes unavailable to decide the
remaining issues, a successor judge is obliged to rehear the
evidence and make his or her own decision on all issues,
including those that had been tried before the first judge, unless
the parties stipulate otherwise. (Id. at p. 1214.)
We find European Beverages inapplicable to the highly
regulated procedure for forfeiture of bail. Under the Penal Code,
a surety has up to one year to produce the defendant to get the
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bond exonerated. And, regardless of the facts adduced at the
initial hearing, exoneration is automatic if the defendant is
produced during the appearance period. (§ 1305, subd. (c)(1).)
This is a lengthy process designed to protect the surety and
ensure it has sufficient time to locate the absent defendant and
make its arguments against final entry of judgment on the
forfeiture. Under the Penal Code, the surety is invited to come to
court at any time during the appearance period and essentially
write on a blank slate with new and additional evidence. The
initial order of forfeiture does not preclude new findings or a new
and different order nor does it erect evidentiary or presumptive
barriers to exoneration or reinstatement of bond; indeed the
statutes governing forfeiture are designed to give the surety more
“chances.” Because the facts found by the judge who initially
forfeited the bond are not written in stone under this process
which designed to protect the surety, we see no need to mandate
that the same judge preside over every aspect of the forfeiture
procedure.
Moreover, given the length of time granted to the surety to
make its case against forfeiture, it is highly impractical to graft
onto the statute a requirement that only a single judge may
preside over all stages of the proceedings. And “grafting” is
exactly what we would be doing. The language of section 1306
does not support appellants’ argument. Subdivision (a) states
“the court which has declared the forfeiture shall enter a
summary judgment . . . .” (§ 1306, subd. (a), italics added.) The
California Constitution clearly states that the superior court of
each county is a single entity made up of “one or more judges.”
(Cal. Const., art. VI, § 4.) Given how carefully sections 1305 and
1306 delineate all aspects of the bail forfeiture process, we
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conclude that if the legislature had wanted the same judge who
declared the forfeiture to enter the summary judgment as well, it
could have said so. It did not. Like our colleagues in Division 7,
we read the language of section 1306 to require that if a bond is
forfeited by the Los Angeles County Superior Court, summary
judgment will be entered by the Los Angeles County Superior
Court. The identities of the individual bench officers involved in
the process are irrelevant. (People v. North River Insurance Co.
(2020) 53 Cal. App. 5th 559, 564–565.)
DISPOSITION
The order is affirmed. Respondent is awarded costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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