People v. North River Insurance Co. CA1/5

Filed 3/18/21 P. v. North River Insurance Co. CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A157356
THE NORTH RIVER INSURANCE
COMPANY,
(San Mateo County
Defendant and Appellant,
Super. Ct. No. 19CIV00097)
BAD BOYS BAIL BONDS,
Real Party in Interest and Appellant.
The North River Insurance Company (North River) and Bad Boys Bail
Bonds (Bad Boys) appeal from a summary judgment entered on a bail bond
and an order denying their motion to set aside the judgment. They contend
the trial court lacked jurisdiction to enter the summary judgment because the
defendant had a sufficient excuse for failing to appear. We will affirm.
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I. FACTS AND PROCEDURAL HISTORY
North River, as surety, and Bad Boys, as bail agent, posted a bail bond
in the amount of $45,000 guaranteeing the appearance of criminal defendant
Matthew Lee Kennedy.
On May 25, 2018, Kennedy failed to appear in court as required by law.
The court (Judge Holt) declared the bond forfeited in open court. Notice of
the forfeiture was mailed to appellants on June 4, 2018.
During the 180-day appearance period ending on December 6, 2018, no
motion was filed to vacate the forfeiture or exonerate bail (Pen. Code, § 1305)
or to obtain an extension of the time to bring Kennedy into court (§ 1305.4).1
Summary judgment on the bond was signed by Judge Finigan on
December 19, 2018. The judgment recites that Kennedy failed to appear on
May 25, 2018 “without sufficient excuse” and the court had forfeited the
bond. It orders that judgment be entered for $45,000 against North River
and in favor of the People pursuant to section 1306. The judgment was filed
on January 8, 2019, and the court clerk mailed notice of the entry of the
judgment that same day.
Meanwhile, on December 26, 2018—after the judgment was signed but
before it was filed—the defendant appeared in court. His lawyer stated:
“Your Honor, Mr. Kennedy has family in the courtroom, and they want the
Court to be aware Mr. Kennedy has a developmental disability. He came to
court on his last day, but was separated from the friend that brought him to
the courthouse. [¶] His wife will support him to make sure he comes to court
and will provide transportation and reminders.” No evidence was offered to
substantiate defendant’s disability or his inability to appear at the May 2018
1 Except where indicated otherwise, all statutory references are to the
Penal Code.
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hearing without assistance, and there was no request to set aside the bail
forfeiture or exonerate the bond. Ruling on Kennedy’s custody status, the
court (Judge Runde) declined to release Kennedy on his own recognizance in
view of his prior convictions and failures to appear, but reset bail in a lower
amount.
On February 4, 2019, North River and Bad Boys filed a motion to set
aside the summary judgment, vacate the forfeiture, and exonerate the bond
pursuant to Code of Civil Procedure section 473, subdivision (d). The motion
did not assert that Kennedy had a sufficient excuse for failing to appear at
the May 25, 2018 hearing. Instead, appellants made other
contentions—which they represent in their opening brief that they are not
pursuing in this appeal—that the court failed to declare the bail forfeited in
“open court” (an accusation they later withdrew) , the original order setting
bail violated due process under In re Humphrey (2018) 19 Cal.App.5th 1006,
and the summary judgment was invalid because it was entered by a judge
other than the one who declared the bail forfeited (a proposition rejected in
People v. North River Insurance Co. (2020) 53 Cal.App.5th 559, 565).
Respondent filed an opposition to the motion.
II. DISCUSSION
A. Legal Framework
When a defendant, “without sufficient excuse,” fails to appear in court
when lawfully required, the court must declare in open court that the bail
bond is forfeited. (§ 1305, subd. (a)(1)(D).) Lack of a “sufficient excuse” is a
jurisdictional prerequisite to a declaration of forfeiture. (People v. Safety
National Casualty Corp. (2016) 62 Cal.4th 703, 709–710; People v. The North
River Ins. Co. (2019) 37 Cal.App.5th 784, 791.)
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Once bail has been forfeited, the clerk must mail a notice of forfeiture
to the surety. (§ 1305, subd. (b).) The surety then has 180 days, known as
the “appearance period,” to bring the defendant into court. (§ 1305, subd. (c).)
Within the statutory appearance period, the surety may seek an extension of
the time to locate the defendant (§ 1305.4) or file a motion requesting relief
from the forfeiture and exoneration of the bail. (People v. Financial Casualty
& Surety, Inc. (2017) 14 Cal.App.5th 127, 133.) The surety bears the burden
of establishing, with competent evidence, entitlement to relief from the
forfeiture. (People v. Accredited Surety & Casualty Co. (2004) 132
Cal.App.4th 1134, 1139, 1147.)
Once the appearance period passes, the trial court has no jurisdiction to
vacate the bail forfeiture and exonerate the bond. (People v. The North River
Ins. Co. (2017) 18 Cal.App.5th 863, 871 [“A trial court lacks jurisdiction to
entertain a motion to vacate forfeiture if filed after the appearance period has
ended.”]; see § 1305, subd. (j); People v. Topa Ins. Co. (1995) 32 Cal.App.4th
296, 300–301 [trial court lacked jurisdiction to consider motion for relief from
forfeiture that was filed on the last day of the appearance period].)
If the bail forfeiture has not been set aside, the court must enter
summary judgment on the bond in favor of the People. (§ 1306; People v.
American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.)
B. Analysis
Appellants contend the court lacked jurisdiction to enter summary
judgment on the bond because Kennedy had a sufficient excuse for his
non-appearance. They point to defense counsel’s statement on December 26,
2018, that Kennedy had a developmental disability and had not appeared
because he became separated from a friend who was assisting him. They
contend this “new fact was undisputed” and should have been considered by
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Judge Finigan in deciding whether to issue summary judgment. They also
ask us to find that there was a sufficient excuse as a matter of law. Their
argument is meritless.
In the first place, appellants’ argument is untimely. Although “the lack
of a sufficient excuse for the defendant’s nonappearance” has been described
as a “jurisdictional prerequisite[]” for declaring a forfeiture (People v. Safety
National Casualty Corp., supra, 62 Cal.4th at p. 710), the existence of such
an excuse cannot be raised for the first time in this appeal.2 To the contrary,
if a bail forfeiture is not challenged within the appearance period, it is waived
and the court no longer has jurisdiction to set the forfeiture aside. (People v.
The North River Ins. Co., supra, 18 Cal.App.5th at p. 871.) Here, notice of the
forfeiture was mailed to appellants on June 4, 2018, so the 180-day
appearance period, extended by five days for mailing, expired on December 6,
2018. Appellants did not file a motion to vacate the forfeiture and exonerate
the bond by that deadline (indeed, ever). Moreover, when appellants filed
2 If a judgment were issued by a court without fundamental jurisdiction,
the judgment would be void and subject to attack at any time. To this end,
appellants claim “the trial court does not have fundamental jurisdiction over
a bail forfeiture until the jurisdictional prerequisites [such as the defendant’s
lack of a sufficient excuse for failing to appear] are met.” But that is
incorrect. Fundamental jurisdiction pertains to the court’s power to hear a
matter, in this case with respect to the bail bond. The superior court has
fundamental jurisdiction over a bail bond “ ‘from the point that it is issued
until the point it is either satisfied, exonerated, or time expires to enter
summary judgment after forfeiture.’ ” (People v. American Contractors
Indemnity Co., supra, 33 Cal.4th at p. 663, italics added.) Thus, while
forfeiting bail on a bond that has already been exonerated would be an act in
absence of fundamental jurisdiction (People v. Safety National Casualty Corp.
(2007) 150 Cal.App.4th 11, 17), forfeiting bail on a valid bond (and thereafter
entering summary judgment on the bond), where the defendant had a
sufficient excuse, would merely be acts in excess of the court’s jurisdiction
over the bond, rendering the summary judgment voidable, not void.
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their motion to set aside the summary judgment, they did not argue that
Kennedy had a sufficient excuse for not appearing. Appellants do not provide
authority that the judgment, or the order denying a motion to set it aside, can
be reversed on a ground not presented to the trial court. (People v. Accredited
Surety & Casualty Co., supra, 132 Cal.App.4th at p. 1148 [surety cannot raise
theory for vacating forfeiture for first time on appeal].)
At any rate, appellants fail to demonstrate that Kennedy had a
sufficient excuse for his non-appearance. A “ ‘defendant’s failure to appear
without explanation is presumptively without sufficient excuse’ ” (People v.
North River Ins. Co., supra, 37 Cal.App.5th at p. 796), and no explanation
was given for Kennedy’s no-show at the May 25 , 2018 hearing. Appellants
(or Kennedy) thereafter had the burden of showing, by “competent evidence,”
an entitlement to relief from the forfeiture. (People v. Accredited Surety &
Casualty Co., supra, 132 Cal.App.4th at pp. 1139, 1146–1148.) Although
counsel belatedly made a statement about Kennedy’s circumstances at a
custody hearing, no evidence was presented to support the assertion or a
conclusion that Kennedy had a sufficient excuse for failing to appear.
Appellants therefore fail to show that the summary judgment is voidable, let
alone void. And because the judgment was not void, there was no basis for
setting it aside as void under Code of Civil Procedure section 473, subdivision
(d).
Lastly, contrary to appellants’ argument, the assertion made by defense
counsel to Judge Runde at the custody hearing could not have been
considered by Judge Finigan before he signed the judgment. Judge Finigan
signed the judgment seven days before counsel’s assertion. As appellants
stated elsewhere in their opening brief, “it was not possible for Judge Finigan
to take into account the excuse provided by Kennedy’s counsel at the hearing
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on December 26, 2018.” Although the judgment was not filed by the clerk
until after defense counsel’s statement, there is no indication Judge Runde
knew of the judgment or its pendency with the clerk, or that Judge Finigan
found out that counsel had made the statement to Judge Runde before the
judgment was filed. And even if knowledge of counsel’s statement were
imputed to the court and its clerk, counsel’s statement would not have
compelled any change to the judgment for the reasons stated ante.
Appellants fail to establish error.
III. DISPOSITION
The judgment, and the order denying appellants’ motion to set aside
the judgment, are affirmed.
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‘
NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. North River Insurance Co. / A157356
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