Opinion
G053552
04-11-2018
THE PEOPLE, Plaintiff and Respondent, v. ACCREDITED SURETY & CASUALTY COMPANY, Defendant and Appellant.
John M. Rorabaugh for Defendant and Appellant. Leon J. Page, County Counsel and Suzanne E. Shoai, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14HF1348) OPINION Appeal from an order of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed. John M. Rorabaugh for Defendant and Appellant. Leon J. Page, County Counsel and Suzanne E. Shoai, Deputy County Counsel, for Plaintiff and Respondent.
* * *
Accredited Surety & Casualty Company (Accredited) appeals from a judgment entered pursuant to Penal Code section 1305, requiring it to pay the County of Orange $50,000 after an order declaring the forfeiture of its bail bond in that amount had become final. Accredited argues the judgment must be reversed because the trial court erred in denying its two successive motions for an extension of the period in which the forfeiture could be vacated. We affirm.
All further statutory references are to the Penal Code, unless otherwise stated.
Although Accredited acknowledges its first motion for an extension was supported by no admissible evidence, it nonetheless argues the motion was sufficient to support an order granting its motion because the court could discern the information justifying relief from an unsigned and unauthenticated "Fugitive Recovery Report" attached to the motion. We cannot agree. The trial court has no discretion to disregard the requirements of the Evidence Code in the face of valid objection.
Accredited also acknowledges its second motion for an extension was filed after the forfeiture order had already become final. However, it argues the trial court's denial of its first motion, "without prejudice," effectively granted it a special dispensation to refile the motion, and obligated the court to apply the "relation-back" doctrine to deem that second motion filed as of same date the first was filed. Again, we disagree.
A denial of requested relief "without prejudice" means the denial will have no effect on the party's right to seek the same relief again. Thus, it cannot be relied upon as a basis for conferring special status on the subsequent request. Further, the relation-back doctrine, even if extended outside the pleading context, applies only to amendments offered in the context of a pending matter. Because the first motion had already been denied when the second motion was filed, there was no pending matter to which it could relate back.
Accredited makes two additional assertions we need not address. First it asserts, without explanation, that the summary judgment was "not entered in accordance with the consent given." However, nowhere does Accredited suggest it consented to the entry of a summary judgment in some other form or manner than occurred below, nor does it identify any distinct error the court made in entering the judgment. Consequently, we conclude that whatever claim of error Accredited may have been alluding to in making that assertion is waived. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Second, Accredited argues that its second motion to extend the period for vacating the forfeiture order was supported by a sufficient showing of good cause to justify granting the requested extension. However, because we find no error in the trial court's determination the motion was untimely, we need not reach that issue.
FACTS
In August 2014, Accredited issued a bail bond, in the amount of $50,000, to secure the appearance of a defendant in a criminal case.
On July 9, 2015, the court mailed Accredited notice that the defendant's bail was ordered forfeited on July 8. The notice informed Accredited that the forfeiture would become final unless it obtained an order setting aside the forfeiture within 185 days from the date the notice was mailed.
On January 4, 2016, prior to the expiration of the 185-day period, Accredited filed a motion pursuant to section 1305.4, to extend the period within which the forfeiture might be vacated. Section 1305.4 requires that a motion to extend "include a declaration or affidavit that states the reasons showing good cause to extend that period."
Although Accredited's motion did include a declaration signed under penalty of perjury, that declaration contained no substantive facts pertaining to good cause. Instead, it merely stated, "The motion to extend time under . . . Section 1305.4 is based on the following Statement of Facts," followed by a large blank space.
A three page, undated and unsigned document entitled "Fugitive Recovery Report" was also attached to the motion. The document is comprised primarily of a list of entries on grids identified as a "Call Log," a "SMS Log," a "Visitation History" and an "Activities Overview." The report concludes with a short "Plan of Action."
The document's call log consists of a list of dates, a designation of "Inbound/Outbound" (all entries reflect "Outbound"), and a "Result" (all but one listed as "No Answer"). The "SMS Log," presumably referring to text messages, appears to list the content of messages sent to the defendant; e.g., "Mr. Soccio. You missed your court date. Contact SOTA Bail Bonds ASAP." The "Visitation History" consists of a list of dates followed by a representation that "Henchman Fugitive Recovery, LLC," visited the defendant's residence.
The "Activities Overview" is somewhat more detailed, with a few entries as long as a paragraph, describing efforts to make contact with the defendant, Mr. Soccio. However, none of those entries identifies the writer, and many make clear the writer is summarizing the activities of third parties.
Neither the notice of motion to extend the time for vacating the forfeiture, the one-page memorandum of points and authorities filed in support of it, nor the truncated declaration, makes any reference to the "Fugitive Recovery Report" or to its content.
The County filed an opposition to Accredited's motion, pointing out Accredited had failed to support it with any declaration identifying its efforts to capture the defendant. And on February 4, 2016, the trial court denied the motion, specifying the denial was "without prejudice."
On February 16, 2016, outside of the 185-day period for avoiding finality of the forfeiture, Accredited filed what it referred to as an "Amended Motion to Extend Time Pursuant to . . . § 1305.4." Accredited argued it was proceeding pursuant to the "relation-back doctrine," and thus its amended motion should be treated as though it were filed on the date its original motion had been filed.
The County again opposed the motion, asserting the court had no jurisdiction to grant the requested relief because the motion was filed after the bail forfeiture had become final. The trial court agreed, and denied the motion.
On May 2, 2016, the court entered summary judgment against Accredited on the bond.
DISCUSSION
Background Law and Standard of Review
"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. [Citation.] Our task when interpreting the statutes is to ascertain the Legislature's intent; we are mindful that "'[t]he law traditionally disfavors forfeitures,'" and the provisions "'must be strictly construed in favor of the surety. . . .'" (County of Los Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th 944, 949-950 (Williamsburg).)
"Section 1305, subdivision (a) requires the trial court to declare a forfeiture of bail if a defendant fails to appear at specified court proceedings without a satisfactory excuse. Where, as here, the amount of the bond exceeds $400, the clerk of the court is required to mail notice of the forfeiture to the bail agent within 30 days of the forfeiture." (People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 762.) The surety has 185 days after service of the notice to move to vacate the forfeiture (the exoneration period)." (Williamsburg, supra, 235 Cal.App.4th at p. 950.)
"However, because the law disfavors forfeitures, a surety or other interested party may move the court to extend the exoneration period up to an additional 180 days under section 1305.4. [Citations.] 'The "extension is not automatic. [The surety] has to earn any additional time by a showing of good cause. That means an explanation of what efforts [it] made to locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful."'" (Williamsburg, supra, 235 Cal.App.4th at p. 950.)
"If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion." (People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1358.)
However, "[w]hen any bond has been forfeited and the period of time [in which the forfeiture may be vacated] 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." (§ 1306, subd. (a).)
"The trial court's ruling on a motion for extension of time under section 1305.4 is generally reviewed for abuse of discretion. [Citation.] 'However, where, as here, we review the trial court's interpretation of a statute on uncontested facts, the issue concerns a pure question of law and is subject to de novo review.'" (Williamsburg, supra, 235 Cal.App.4th at p. 949.)
Order Denying First Motion to Extend Period for Vacating Forfeiture
Section 1305.4 expressly requires that a motion for extension of the period for vacating a bond forfeiture "include a declaration or affidavit that states the reasons showing good cause to extend the period." (Italics added.) Although Accredited acknowledges the declaration included with its first motion contained no information regarding good cause, it nonetheless argues the court erred in denying the motion because the omission was a mere technicality.
Accredited suggests the court should have relied on the information it could have gleaned from the "Fugitive Recovery Report" attached to the motion, as a basis for finding good cause. Relying on Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1204 (Hearn), Accredited argues that because "the details of the bondman's investigation w[ere] contained in notes that were attached to a properly signed declaration[, they] should be considered incorporated into the properly signed declaration." We disagree.
In Hearn, the appellate court determined that a process server's failure to recite that his sworn declaration of due diligence was executed in California, or alternatively that it was executed "under penalty of perjury under the laws of the State of California," was harmless error. (Hearn, supra, 177 Cal.App.4th at p. 1204.) The court noted the technically flawed declaration had been "attached to, expressly referenced in and filed with the proof of service [also signed by the process server], which was properly executed under penalty of perjury under the laws of the State of California." (Ibid., italics added.) Additionally, the "plaintiffs' attorney submitted a properly subscribed declaration outlining the efforts that were made to personally serve appellant." (Ibid.) In other words, the Hearn court concluded the technical defect in one of the process server's two declarations had been effectively ameliorated by the content of other properly executed declarations submitted in support of the same motion.
In this case, by contrast, the "Fugitive Recovery Report" was not referenced anywhere in the properly signed declaration, and no other declaration was offered in support of the motion. Thus, the court had no other evidence before it that might have served to ameliorate the very substantive defect at issue here.
Moreover, neither Accredited's notice of motion nor the points and authorities it submitted in support of it made any reference to either the "Fugitive Recovery Report" or any of is content. Thus, Accredited's reliance on Hicks v. Hicks (1968) 264 Cal.App.2d 890 is misplaced. In Hicks, the appellate court noted (albeit with some reluctance) that the failure to sign a declaration might be considered harmless when that declaration is attached to a signed motion which itself describes the facts relied upon: "We are doubtful if the failure to have the declaration subscribed can be overlooked, but it is true that it is attached to the 'motion,' which is subscribed and dated, and it is not a very great strain of interpretation to accept the declaration as being subscribed." (Id. at p. 893.)
The problem here is that no signed document submitted in support of the motion either referenced, incorporated or described the "Fugitive Recovery Report" or its content. Consequently, there is no basis to construe the information contained in the "Fugitive Recovery Report" as having been vouched for by any identifiable witness. That is no mere technicality.
Even if the "Fugitive Recovery Report" had been incorporated by reference into the declaration submitted in support of Accredited's motion, it is nonetheless classic hearsay. (People v. Sanchez (2016) 63 Cal.4th 665, 674 ["Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content."].) Thus, the court could not have considered the statements contained in the "Fugitive Recovery Report" as true unless it had also been properly authenticated as a business record. (Evid. Code, § 1271.)
Evidence Code section 1271 provides that "[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule" if it meets all of the following requirements: "(a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." Significantly, admissibility depends largely "'upon the "trustworthiness" of such evidence, a determination that must be made, case by case, from the circumstances surrounding the making of the record.'" (People v. Matthews (1991) 229 Cal.App.3d 930, 939.)
In this case, Accredited's motion offered the court no evidence regarding the circumstances under which the "Fugitive Recovery Report" was made. The document is unsigned and undated, it offers no hint as to the identity of any person who contributed to its content, and it rather plainly reflects that at least some of that content was obtained from a separate entity identified as "Henchman Fugitive Recovery, LLC." For the trial court to have treated this document as trustworthy, in the absence of any evidence supporting that conclusion, would have been an abuse of discretion.
In light of Accredited's failure to submit a declaration — or any other admissible evidence — showing good cause for an extension of the period for vacating the bail forfeiture, the court did not err in denying its first motion seeking that relief.
Order Denying Second Motion to Extend Period for Vacating Forfeiture
Accredited also argues the court erred by denying its second motion to extend the period for vacating the bail forfeiture. Here again, Accredited acknowledges the apparent flaw in its motion — i.e., it was filed outside the 185-day window for avoiding finality of the bail forfeiture order. However, Accredited argues that because the court denied its first motion "without prejudice," it was implicitly inviting Accredited to refile the same motion "without suffering any prejudice." Thus, it claims its second motion should be treated as though it "related back" to the filing date of the original motion.
We reject Accredited's argument, which both misconstrues the significance of the phrase "without prejudice" and misapplies the relation-back doctrine.
When a court disposes of a matter "without prejudice," it treats the matter as though it were never filed in the first place. (Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 718, ["The term 'without prejudice,' in its general adaptation, means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as if no suit had ever been brought."].) Thus, Accredited is correct in asserting the denial of requested relief "without prejudice" would obviate the need for a separate motion for reconsideration of the request under Code of Civil Procedure section 1008. (Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015.) Because there is no actual decision inherent in the denial of a request without prejudice, it follows that there is no decision to reconsider.
However, that same rule demonstrates why the court's denial of Accredited's first motion without prejudice cannot be relied upon as a basis for effectively extending the period within which it could file a second motion seeking the same relief. By denying the first motion without prejudice, the court left the parties in the same position they would have been in had that first motion never been filed. Consequently, the first filing could not thereafter be relied upon to affect the parties' rights — including by effectively extending the period within which Accredited could seek relief.
Thus, as explained in Eaton Hydraulics Inc. v. Continental Casualty Co. 132 Cal.App.4th 966, 974, footnote 6, a "dismissal 'without prejudice' necessarily means without prejudice to the filing of a new action on the same allegations, so long as it is done within the period of the appropriate statute of limitations." (Italics added; see Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784 ["The implication of a [dismissal without prejudice] is that it is generally 'without prejudice' to a plaintiff's filing of a new action on the same allegations if it is done within the period of the appropriate statute of limitations."].)
Accredited's reliance on the relation-back doctrine is likewise misplaced. The relation-back doctrine applies to complaints, and "has been used to determine the time of commencement of an action for the purpose of the statute of limitations." (Barrington v A.H. Robins Co. (1985) 39 Cal.3d 146, 150.) The general rule established by the doctrine is that "[a]n amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar against named parties substituted for fictitious defendants, if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint." (Id. at p. 151.) The relation-back doctrine can also be applied when an amended complaint alleges additional causes of action against the same defendants, as long as they arise from the same facts alleged in the original complaint. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 266.)
Accredited offers us no authority for the application of the relation-back doctrine to a motion, rather than a complaint. But even if we assume it could apply to motions as well, we would reject its application in this case for two reasons. First, Accredited's second motion was not an amendment of its first motion. Because the first motion had already been denied outright before the second motion was filed, there was no pending request for relief that might have been subject to an amendment, and thus nothing for an amended motion to relate back.
And second, the relation-back doctrine will not be applied if the initial pleading is "devoid of factual allegations." (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 416.) As explained in Davaloo, "a plaintiff who files a complaint containing no operative facts at all cannot subsequently amend the pleading to allege facts and a theory of recovery for the first time and claim the amended complaint should be deemed filed as of the date of the original, wholly defective complaint: Going from nothing to something is as much at odds with the rationale for allowing an amended pleading to relate back to the filing of the original documents as changing from one set of facts to a different set." (Ibid.)
In this case, the core problem with Accredited's first motion was that it was entirely devoid of evidence demonstrating good cause for the requested relief. It was properly denied for that reason. And because that first motion stated no facts, the second motion cannot be said to have been based on the same general set of facts. Thus, even if the relation-back doctrine might otherwise have theoretically applied, we would reject its application here.
DISPOSITION
The judgment is affirmed. Plaintiff and respondent shall recover its costs on appeal.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.