Opinion
F072615
08-31-2017
COUNTY OF TULARE, Plaintiff and Respondent, v. ACCREDITED SURETY AND CASULTY COMPANY, INC., Defendant and Appellant.
E. Alan Nunez for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, F. William Jackson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCU262873)
OPINION
APPEAL from a judgment and order of the Superior Court of Tulare County. James W. Hollman and Gary L. Paden, Judges. E. Alan Nunez for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, F. William Jackson, Deputy County Counsel, for Plaintiff and Respondent.
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A surety on a bail bond appeals from an order denying its motion to vacate forfeiture of bail and from a summary judgment on forfeiture of bail bond. The surety contends the summary judgment should be reversed because Penal Code section 1306, subdivision (a) allows a summary judgment to be entered only after the statutory exoneration period has elapsed and here the trial court entered the summary judgment a day too early. The surety also contends that exoneration of the bail bond is required by section 1306, subdivision (c) and cites this court's decision in People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991 (U.S. Fire) as support.
All unlabeled statutory references are to the Penal Code.
We reach the following conclusions. First, the summary judgment was premature because it was entered one day too early. Second, the premature summary judgment is voidable, not void. Third, the direct appeal from the voidable summary judgment is a proper procedural mechanism for challenging the judgment. Fourth, reversal of the voidable judgment is appropriate in this appeal. The county's evidence does not establish all of the elements of the doctrines of equitable estoppel, judicial estoppel or invited error. Fifth, as to whether further orders should accompany the reversal, we conclude an order exonerating the bail bond is required because it is not possible to enter a new, replacement summary judgment within the 90-day period mandated by section 1306, subdivision (c).
We therefore reverse the summary judgment and remand with directions for the entry of an order exonerating the bond.
FACTS AND PROCEEDINGS
On September 11, 2014, defendant Minervo Angon Garcia was arraigned in Tulare County Superior Court case No. VCF306023. Garcia was charged with 11 counts of sexual offenses. Bail was set at $100,000.
On September 30, 2014, Accredited Surety and Casualty Company, Inc., a Florida corporation, through its bail agent Great Dane Bail Bonds (collectively, Surety), posted bail bond number AG-00754575 in the amount of $100,000 for the release of Garcia. Handwritten information of the bail bond indicated that Garcia was charged with felonies under "PC 288.7(A) x 3, PC 288(A) x 7, PC 1203.066(A)(8) x 4 [and] PC 288.7(B)."
Section 288, subdivision (a) provides that a person who commits lewd or lascivious acts upon the body of a child under the age of 14 is guilty of a felony punishable by three, six or eight years in state prison.
Section 288.7, subdivision (a) states that an adult who engages in sexual intercourse or sodomy with a child 10 years old or younger is guilty of a felony punishable by a term of 25 years to life in state prison.
Section 288.7, subdivision (b) provides that an adult who engages in oral copulation or sexual penetration with a child who is 10 years old or younger is guilty of a felony punishable by 15 years to life in state prison.
Section 1203.066, subdivision (a)(8) was referred to in four of the 11 counts against Garcia. Section 1203.066 does not define a separate criminal offense, but identifies the circumstances under which a person who has violated section 288 shall not be granted probation. Subdivision (a)(8) of section 1203.066 refers to violations of section 288 involving "substantial sexual conduct" with a victim under 14 years of age.
Garcia was scheduled for arraignment on October 14, 2014, but failed to appear. As a result, the trial court ordered the bail bond forfeited. The notice of order forfeiting bail signed and mailed by a deputy clerk of court stated the sum of $100,000 was forfeited and, "[u]nless said order of forfeiture is set aside within 180 days from the date of this notice, summary judgment will be entered pursuant to section 1306 of the Penal Code."
On April 2, 2015, the County of Tulare (County) and Surety stipulated that the exoneration period for the bail bond was extended to July 16, 2015, pursuant to section 1305.4. A few days later, the trial court signed an order implementing the stipulation.
On June 23, 2015, Surety filed a motion to vacate the forfeiture and exonerate bail. A bail agent's declaration filed in support of the motion asserted a bench warrant for the arrest of Garcia had not been entered into the National Crime Information Center (NCIC) system and the two dates of birth listed in the criminal complaint were incorrect. The bail agent stated that, based on information obtained from family members, Garcia had come in close contact with law enforcement officials and the lack of information in the NCIC database had enabled Garcia to evade a return to custody. The bail agent also stated the family had confirmed Garcia was living and working in the town of Guerrero, Itundujia, Oaxaca, Mexico.
Six days later, on June 29, 2015, Surety filed a motion to extend the exoneration period. The bail agent asserted he was a licensed private investigator, was in contact with Garcia's family, was making active attempts to have Garcia returned to custody, was visiting the family and other locations to determine Garcia's whereabouts, and had enlisted the aid of a fugitive recovery agent to locate and pursue Garcia.
On July 7, 2015, the trial court held a hearing on the motion to vacate forfeiture and exonerate bail. In discussing the accuracy of the birth date entered for Garcia in the NCIC database, the bail agent argued the correct date of birth (December 31, 1985) had not been entered and the family of the defendant "says that he has been approached by law enforcement and they did not see any warrant." At the end of the hearing, the court found that the statutory requirements for vacating the forfeiture had not been met by Surety and stated it would deny the motion.
On July 14, 2015, the trial court held a hearing on the motion for an extension of the exoneration period. The court found Surety had shown some due diligence and granted the extension of the exoneration period to October 14, 2015.
On September 16, 2015, Surety filed a motion to renew its request to vacate forfeiture of the bond. The motion stated Surety would ask the court to reconsider its decision denying the motion to vacate forfeiture. Surety argued the bail was set too low for the charges, which resulted in it unknowingly incurring a risk of flight many times higher than it bargained for. Also, Surety argued the clerk was required by statute to enter Garcia's identifying information into the NCIC database by section 980, but failed to accurately enter Garcia's birth date. The motion was heard and denied on September 30, 2015.
On October 14, 2015, the last day of the exoneration period, the trial court entered a summary judgment on forfeiture of bail bond. Notice of entry of the judgment was served by mail the same day.
On October 26, 2015, Surety filed a notice of appeal from the July 2015 order denying its motion to vacate forfeiture and from the summary judgment entered on October 14, 2015.
DISCUSSION
I. OVERVIEW OF THE BAIL STATUTES
A. Bail Bonds
Bail bonds are regarded as a contract between the government and the surety. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 (American Contractors).) Consequently, bail bond proceedings are civil in nature and independent from and collateral to the criminal prosecutions. (Ibid.) The object of bail and the incentive created by its possible forfeiture is to ensure the appearance of the defendant. (Ibid.) Bail's purpose is not to generate revenue for the state or to punish the surety. (Ibid.)
B. Forfeiture and Exoneration
Despite the contractual nature of the relationship created by a bail bond, the forfeiture and exoneration of bail is entirely a statutory procedure. (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552.) In particular, section 1305 governs the forfeiture of bail and sets forth the grounds upon which the forfeiture may be set aside and the bail exonerated. When a criminal defendant released on bail fails to appear without sufficient excuse, the trial court must declare that the undertaking of bail is forfeited in open court. (§ 1305, subd. (a).) After the court's declaration of forfeiture, the next procedural step is for the court clerk to serve notice of the forfeiture on the surety and its bail agent within 30 days. (§ 1305, subd. (b).)
The surety is given 185 days from the date the notice of forfeiture is mailed (180 days plus five days for service by mail) to produce the defendant in the court where the case is located and have the forfeiture set aside. (§ 1305, subds. (b)(1), (c)(1); People v. Western Ins. Co. (2012) 204 Cal.App.4th 1025, 1030.) The 185-day period is known as the exoneration period or the appearance period, and may be extended 180 days upon a showing of good cause. (§ 1305.4.) As an alternative to producing the defendant in the court, the surety may attempt to demonstrate other circumstances requiring the court to vacate the forfeiture. (People v. Western Ins. Co., supra, at p. 1030.) Circumstances that justify vacating a forfeiture order and exonerating the bond are set forth in sections 1305 and 1305.6. For example, if a defendant is in custody in another jurisdiction and the district attorney elects not to seek extradition, the forfeiture shall be vacated and the bond exonerated. (§ 1305, subd. (f).)
C. Judgment against the Surety
If the surety does not obtain relief from the forfeiture within the exoneration period, including extensions, section 1306 provides for the entry of a summary judgment against the surety on the bond. Under section 1306, subdivision (a), when "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 the surety "in the amount of the bond plus costs." As to timing (an important subject in this appeal), the summary judgment must be entered within 90 days of the expiration of the exoneration period. (§ 1306, subd. (c).) Section 1306, subdivision (c) provides in full:
"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."
The statutory provisions do not specify what happens when the trial court enters a summary judgment before the exoneration period has elapsed. The legal consequences of a premature summary judgment are among the issues presented in this appeal.
D. Basic Principles for Construing the Bail Statutes
The law disfavors forfeitures in general and bail forfeitures in particular. (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 714.) Thus, the statutes governing bail are strictly construed to avoid forfeiture. (Ibid.) This policy of strict construction to avoid forfeitures protects the surety "and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody ...." (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62.) However, "[t]he policy disfavoring forfeiture cannot overcome the plainly intended meaning of the statute." (People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 308 (Indiana Lumbermens).)
E. Standard of Review
Ordinarily, appellate courts review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard. (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.) The abuse of discretion standard is not a single, unified standard. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) The deference it calls for varies according to the particular determination by the trial court under review. (Ibid.) When the appellate court is deciding only legal issues, it conducts an independent review. (People v. International Fidelity Ins. Co., supra, at p. 592.) Questions of statutory interpretation are legal issues and, thus, subject to independent review. (Ibid.) Similarly, the application of a statutory provision to undisputed facts is subject to independent review. (Ibid.) In contrast, when there are factual disputes, the trial court's findings of fact will be upheld if those findings are supported by substantial evidence. (People v. Accredited Surety Casualty Company (2014) 230 Cal.App.4th 548, 555.) II. PREMATURELY ENTERED SUMMARY JUDGMENT
The parties agree that the October 14, 2015, summary judgment was entered on the last day of the exoneration period, which made it one day too early. Thus, they agree the summary judgment was premature. However, they disagree about the legal consequences that flow from the premature entry of summary judgment.
A. Premature Judgments Are Voidable
1. Principles from the Case Law
Our Supreme Court has decided some of the issues raised by the premature entry of summary judgment on a forfeited bail bond. (American Contractors, supra, 33 Cal.4th 653.) As relevant to this appeal, the two main legal conclusions reached in American Contractors are (1) a premature summary judgment is voidable, not void, and (2) there are three procedural avenues for challenging a premature summary judgment—namely, a timely filed motion to vacate the judgment, a direct appeal from the judgment, and a collateral attack. (Id. at p. 657.) These conclusions were not derived from specific statutory language because the bail statute, which addresses the timing of summary judgments, does not state how to deal with a summary judgment entered prematurely. (Id. at p. 662.)
In American Contractors, the trial court entered summary judgment on the forfeited bail bond on the last day of the exoneration period, which was one day too early. (American Contractors, supra, 33 Cal.4th at p. 657.) The surety pursued an untimely motion to set aside the summary judgment about 11 months after entry of the judgment was entered. (Id. at p. 659.) The trial court denied the motion on several grounds, including the surety's failure to timely raise the issue of prematurity. (Id. at p. 660.) The surety appealed the denial of the motion.
Our Supreme Court concluded the premature summary judgment should not be set aside, stating a "collateral attack on a voidable but final judgment is not available absent unusual circumstances, not present here ...." (American Contractors, supra, 33 Cal.4th at p. 657.) Thus, the court characterized the untimely motion and subsequent appeal as a collateral attack. The court supported its rejection of this collateral attack by noting the premature summary judgment "was subject to correction by appeal or a timely motion to vacate the judgment." (Ibid.) Thus, American Contractors informs bail bond sureties and practitioners that collateral attacks on premature summary judgments are unlikely to succeed and the better options are to file a timely motion to vacate the judgment or to file an appeal.
Both of these better options were pursued by the surety in a case recently decided by this court. (U.S. Fire, supra, 242 Cal.App.4th 991.) In U.S. Fire, the surety initially argued the summary judgment was premature in a timely filed motion to set aside the judgment. (Id. at p. 997.) After the trial court denied that motion, the surety appealed from the summary judgment and from the order denying the motion to set aside the summary judgment. (Id. at p. 998.) This court reversed the judgment and directed the trial court to exonerate the bond. (Id. at p. 1011.)
In U.S. Fire, the parties disputed whether the summary judgment was premature and, if it was, what relief should be granted. On the subject of prematurity, we identified two ways a summary judgment could be entered too early. (U.S. Fire, supra, 242 Cal.App.4th at p. 1001.) The first way, which is relevant to this appeal, occurs if the summary judgment is "entered against the surety before the exoneration period expired." (Id. at p. 1001; see American Contractors, supra, 33 Cal.4th at p. 660 [summary judgment entered on last day of exoneration period was premature].) The second way occurs when a summary judgment is entered while a timely motion for an extension of the exoneration period is pending. (U.S. Fire, supra, at p. 1001.) The summary judgment entered in U.S. Fire fell into this second category. Accordingly, we concluded the summary judgment was premature because it was entered before the timeframe specified in section 1306, subdivision (a). (U.S. Fire, supra, at pp. 1003, 1011.) As to the consequences of the prematurity, we concluded "the summary judgment was (and is) 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.)
As to the question of relief, we determined the premature summary judgment should be set aside (i.e., vacated, reversed) because the respondent county had raised no grounds, such as estoppel, that would prevent setting aside the premature judgment. (U.S. Fire, supra, 242 Cal.App.4th at p. 1001.) In addition, we considered whether "the bond should be ordered exonerated" (id. at p. 1009), a topic addressed further in part II.B, post.
2. Setting Aside the Voidable Summary Judgment
Applying the principles set forth in American Contractors and U.S. Fire, we reach the following conclusions. First, the summary judgment entered against Surety on October 14, 2015, was premature and therefore voidable. Second, Surety's notice of appeal was timely and, therefore, was a proper way to directly challenge to the premature summary judgment. Third, the premature summary judgment should be reversed, which is the equivalent of saying it should be vacated or set aside.
Our conclusion that the voidable summary judgment should be reversed is supported by our Supreme Court's statement that a premature summary judgment is "subject to correction by appeal." (American Contractors, supra, 33 Cal.4th at p. 657.) We interpret the reference "correction by appeal" to mean the reversal of the premature summary judgment. This interpretation comports with the relief granted in U.S. Fire, where we reversed the premature summary judgment. (U.S. Fire, supra, 242 Cal.App.4th at p. 1011.) Stated another way, appropriate appellate relief includes the reversal of the voidable judgment. (See Code Civ. Proc., § 906 [on any appeal from a judgment, the appellate court "may affirm, reverse of modify" the judgment].)
Our determination that reversal is appropriate does not take into account County's argument that Surety is estopped from challenging the premature summary judgment. County's estoppel argument is broad enough to encompass all forms of appellate relief that might be entered in this appeal. Accordingly, the estoppel argument is addressed after we decide whether additional appellate relief—specifically, exoneration of the bond—should be granted in this appeal. (See pt. II.C, post [judicial estoppel and invited error].)
B. Exoneration of the Bond
1. Contentions of the Parties
Surety contends we should reverse the judgment and direct the trial court to exonerate the bond because the trial court failed to enter a valid summary judgment. Surety argues exoneration is statutorily required because, on remand, a valid summary judgment cannot be entered if the undisputed facts show the 90-day period established by section 1306, subdivision (c) has expired. Surety supports its argument by citing this court's application of section 1306, subdivision (c) in U.S. Fire, supra, 242 Cal.App.4th at pages 1009 through 1011.
County responds with three arguments for why Surety is not entitled to exoneration of the bond. As a matter of statutory construction, County argues the exoneration provision in section 1306, subdivision (c) should not be applied to the facts of this case because doing so would exalt form over substance and contravene the purpose of the bail statute. In addition, County contends (1) Surety failed to demonstrate a miscarriage of justice resulted from the entry of the summary judgment one day early and (2) Surety is estopped from requesting exoneration.
2. General Statutory Authority for Further Appellate Relief
Code of Civil Procedure section 906 addresses appellate relief beyond a simple reversal by providing that the appellate court "may direct the proper judgment ... to be entered" and "may, if necessary or proper, direct ... further proceedings to be had." Viewing the parties' contentions in light of this general provision about the authority of an appellate court, it appears Surety is contending "the proper judgment" would exonerate the bond. Conversely, it appears County is contending that, after the voidable judgment is reserved, the "proper judgment" would be a new summary judgment against Surety. We note it is theoretically possible that the record lacks sufficient evidence for the proper resolution of the relief that should be entered in this case. In such a situation, the appropriate appellate disposition would be to remand for further proceedings to resolve any remaining questions pertaining to relief.
3. Interpretation and Application of Statute
Our analysis of the parties' contentions about exoneration begins with the interpretation of the statutory provisions that mention exonerating bail. Section 1306, subdivision (c) provides:
"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." (Italics added.)
The duties enjoined upon courts pursuant to section 1306 include the requirement for courts to enter a summary judgment "[w]hen any bond is forfeited and the [exoneration] period ... has elapsed without the forfeiture having been set aside ...." (§ 1306, subd. (a).)
In Surety's view, exoneration of the bail bond is required by the terms of section 1306, subdivision (c) because the premature summary judgment was "not entered within 90 days after the date upon which it [could] first be entered" and, more significantly for purposes of remand, the right to enter a new summary judgment has expired. Thus, any new summary judgment entered on remand would not be "within 90 days after the date upon which it may first be entered" or "promptly perform[ed]." (§ 1306, subd. (c).) Based on this view of the statutory language, Surety contends, in effect, we can determine that the right to enter a summary judgment has expired and, therefore, Surety is entitled to exoneration of the bond.
In American Contractors, the Supreme Court observed that "if summary judgment is entered after expiration of the 90-day period, section 1306 expressly provides that the bond is exonerated. (§ 1306, subd. (c).)" (American Contractors, supra, 33 Cal.4th at p. 661.) The court agreed with the assertion that "there 'is no similar statutory provision declaring the surety released from its obligations if the judgment is entered prematurely.'" (Id. at p. 662.) Based on the Supreme Court's statements and the statutory text, we conclude a premature summary judgment, by itself, does not trigger the exoneration of the bond. Rather, the basis for exonerating the bond is clearly identified in the statute as the failure to enter summary judgment "within 90 days after the day upon which it may first be entered." (§ 1306, subd. (c).)
In U.S. Fire, we concluded the summary judgment was premature because it had been entered while the surety's motion for an extension of the exoneration period was pending. (U.S. Fire, supra, 242 Cal.App.4th at p. 1010.) The pending motion postponed the start of the 90-day period during which summary judgment could be entered. When the motion for an extension was denied, the exoneration period had expired and, consequently, the denial order marked the beginning of the 90 days within which to enter a valid summary judgment. (Ibid.) In U.S. Fire, no summary judgment was entered during that 90-day period and, therefore, we concluded section 1306, subdivision (c) required an order exonerating the bond. (U.S. Fire, supra, at p. 1011.)
County argues that this court's application of section 1306, subdivision (c) in U.S. Fire does not control how it should be applied in the present case because of the many factual differences between the cases. For instance, County states Surety did not give the trial court an opportunity to correct the premature summary judgment by filing a timely motion to vacate the summary judgment, which was done by the surety in U.S. Fire. We conclude County's attempts to distinguish U.S. Fire from the present appeal are disconnected from the statutory text of section 1306, subdivision (c). In other words, there is no textual basis for limiting exoneration to situations where the surety filed a timely motion to vacate before pursuing a timely direct appeal.
We are convinced our interpretation and application of section 1306, subdivision (c)'s exoneration language in U.S. Fire was correct. Furthermore, the same interpretation should be applied in this case. Specifically, the statutory condition for exoneration of the bond (i.e., no summary judgment entered during the 90-day period) is satisfied by the facts of this case because (1) the October 14, 2015, summary judgment was premature; (2) no proper summary judgment was entered within the 90-day period; and (3) it is no longer possible to enter a proper summary judgment within the statutorily mandated 90-day period because that period has expired. Therefore, as in U.S. Fire, we conclude section 1306, subdivision (c) requires the exoneration of the bond. This construction comports with the policy of strictly construing bail statutes to avoid forfeiture and does not overcome the plainly intended meaning of the statute. (Indiana Lumbermens, supra, 49 Cal.4th at pp. 307-308.)
County has not argued that the 90-day period is tolled or otherwise ceases to run while an appeal is pending. We note that section 1305 expressly requires tolling of the exoneration period in certain circumstances, but the Legislature did not require tolling of the summary judgment period when an appeal is pending. (See § 1305, subds. (e)(1), (e)(2), (h).) The absence of an express requirement and the general principle that the bail statutes should be strictly construed to avoid forfeitures suggests that the tolling of the 90-day summary judgment period during an appeal should not be implied.
Our conclusion that the bond must be exonerated leads to the further conclusion that Surety has shown the error is not harmless. (See Cal. Const., art. VI, § 13 [miscarriage of justice required for reversal].) Exoneration is a different result and is more favorable to Surety.
C. Judicial Estoppel and Invited Error
Both American Contractors and U.S. Fire mentioned estoppel as a basis for allowing a prematurely entered summary judgment to remain in effect. Here, County argues the Surety is estopped from attacking the prematurely entered summary judgment and from obtaining exoneration.
1. Elements of Judicial Estoppel and Invited Error
California's doctrine of judicial estoppel precludes a litigant from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) The doctrine maintains the integrity of the judicial system and protects parties from opponents' unfair strategies. (Ibid.) "The doctrine applies when '(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.'" (Id. at pp. 986-987.)
In addition, the term "estopped" appears in the standard description of California's doctrine of invited error. Consequently, we treat County's arguments about estoppel as also asserting the doctrine of invited error applies in this case. "'"Under the doctrine of invited error, where a party, by his conduct, induces the commission of an error, he is estopped from asserting it as grounds for reversal. [Citations.] Similarly an appellant may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal."'" (Reilly v. Inquest Technology, Inc. (2013) 218 Cal.App.4th 536, 552, italics omitted.)
2. Judicial Estoppel Does Not Apply
We conclude the doctrine of judicial estoppel does not prevent Surety from arguing the October 14, 2015, summary judgment was premature or the bond should be exonerated. First, County's argument about estoppel does not identify the elements of judicial estoppel or attempt to demonstrate that Surety took inconsistent positions. Second, our own review of the appellate record has not shown that Surety took two positions during the course of this litigation that were totally inconsistent. Consequently, we conclude the elements of judicial estoppel have not been satisfied in this case.
An example of conduct by surety on a bail bond that resulted in the application of the doctrine of judicial estoppel is presented by County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10 (Ranger). In that case, the trial court tolled the running of the exoneration period at the surety's request and subsequently entered summary judgment on the bail forfeiture. (Id. at pp. 13-14.) After entry of the judgment, the surety filed a motion to vacate the summary judgment, arguing the trial court's entry of summary judgment was untimely because the court lacked the authority to issue a tolling order and, therefore, no tolling properly occurred. (Id. at p. 15.) If tolling was improper, the summary judgment would have been entered after the expiration of the 90-day period specified in section 1306, subdivision (c) and, consequently, would have been in excess of the trial court's statutory authority. (Ibid.) The appellate court concluded estoppel barred the attack on the summary judgment, stating:
"[The surety] came to the trial court on November 14, 1996, with its hat in hand, seeking and receiving a favor—the tolling of the statutory time period in which to have the forfeiture on its bond vacated. Having been handed the favor, [the surety] now seeks to bite the hand from which the favor was obtained by contending the trial court was without authority to toll the running of the 185-day period because [the surety's bail agent] had not presented the trial court with sufficient information to warrant such a tolling.... We will not permit [the surety] to 'trifle with the courts.'" (Id. at pp. 18-19.)
Another case illustrating the application of estoppel to a surety on a bail bond is People v. National Automobile & Casualty Ins. Co. (2000) 82 Cal.App.4th 120 (National Auto). In that case, the court concluded the surety was estopped from challenging the timeliness of a summary judgment because the surety had stipulated to the extensions (which were longer than allowed by statute) that caused the summary judgment to be entered too late. The court applied the rule "that a litigant who has stipulated or otherwise consented to a procedure in excess of jurisdiction may be estopped to question it." (Id. at p. 126.)
In this case, Surety's conduct is easily distinguished from the conduct of the sureties in Ranger, supra, 70 Cal.App.4th 10 and National Auto, supra, 82 Cal.App.4th 120. Surety did not request or consent to any procedure that caused the October 14, 2015, summary judgment to be premature. Furthermore, once the error occurred, Surety timely pursued one of the methods for correcting the error—namely, a direct appeal. No authority we have found holds that Surety was under a common law, statutory, or contractual obligation to file a motion to set aside the summary judgment before filing its appeal.
County's estoppel argument places great emphasis on Surety's not disclosing its position that the summary judgment was premature until Surety filed its opening brief with this court. For instance, County asserts that had Surety raised the prematurity issue "in a timely manner on appeal, the trial court could have corrected this de minimus procedural error." This assertion that Surety failed to raise the issue in a timely manner is not supported by a citation to any statute, rule of court or judicially established principle of appellate procedure. Thus, County has not shown the issue was raised in an untimely manner. Absent an obligation to disclose that information sooner, Surety's silence about the grounds for its appeal does not estop Surety from pursuing those grounds in its opening appellate brief. (See Stephens & Stephens XII, LLC v. Fireman's Fund Ins. Co. (2014) 231 Cal.App.4th 1131, 1149 [mere silence might provide a basis for equitable estoppel if the party to be estopped was under a duty to speak to avoid a misunderstanding].)
3. The Error Was Not Invited by Surety
Similarly, we conclude the doctrine of invited error does not estop Surety from challenging the premature summary judgment or from requesting exoneration of the bond. County has identified no conduct by Surety that induced the trial court to commit the error of entering the summary judgment prematurely. III. OTHER ISSUES
Based on the conclusion that exoneration of the bond is required by the terms of section 1306, subdivision (c), we do not reach the other grounds presented by Surety for vacating the forfeiture and exonerating the bond. Those grounds include the claim that (1) the authorities failed to properly enter the bench warrant in the NCIC database and (2) the trial court erroneously set the amount of bail too low. (See People v. American Contractors Indemnity Co. (1999) 76 Cal.App.4th 1408 [Legislature amended § 980, subd. (b), to provide for exoneration of bond if clerk's failure to enter bench warrant into system prevented fugitive from being arrested or taken into custody].)
DISPOSITION
The summary judgment is reversed. The trial court is directed to enter a new order vacating the forfeiture and exonerating the bond. Costs on appeal are awarded to Surety.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
MEEHAN, J.