Opinion
A156293
03-23-2020
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY COMPANY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR184119)
American Surety Company (American Surety) appeals from an order denying its motion to vacate a bail forfeiture and to exonerate a bail bond, and from summary judgment subsequently entered against it. For the reasons set out below, we reverse the order granting summary judgment with an order remanding the matter to the trial court for entry of an order exonerating the bail bond.
The background facts of this case are set forth in a contemporaneously filed unpublished opinion. (People v. Audelo (Mar. 23, 2020, A156382) [nonpub. opn.].) We need not fully recite these facts, of which the parties are aware.
As in appeal case number A156382, American Surety contends the trial court lost jurisdiction to declare forfeiture of the bond in this case (bond number AS150-101246) when it failed to order bail immediately forfeited on December 7, 2017 pursuant to Penal Code section 1305. In addition, American Surety argues the summary judgment signed on December 28 and filed on December 31, 2018 was premature. We conclude this latter argument has merit.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
A. Legal Principles
Within 30 days after a trial court declares that a bond exceeding $400 is forfeited, the clerk of the trial court must mail notice of the forfeiture to the surety. (§ 1305, subd. (b)(1).) After the date the clerk mails this notice, a surety has 180 days (plus 5 days for mailing) to obtain relief from the forfeiture by various methods, "including the filing of a motion to vacate the forfeiture and exonerate bail." (§ 1305, subds. (b)(1) & (c), (d); People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 762.) This 185-day period is known as the "exoneration" or "appearance" period. (People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1000.) A court can extend the exoneration period by no more than 180 days from the date the court orders the extension. (§ 1305.4.)
Section 1306, subdivision (a), provides that when a bond is forfeited and the period for setting aside that forfeiture "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." (Italics added.) If summary judgment is not entered within 90 days after the date it can first be entered, the right to enter summary judgment expires and bail is exonerated. (§ 1306, subd. (c).)
Summary judgment is premature if entered before expiration of the exoneration period, and may be premature if entered "while a timely motion for certain relief was pending under the bail forfeiture statutes." (People v. United States Fire Ins. Co., supra, 242 Cal.App.4th at p. 1001.) Apropos here, when a motion to vacate forfeiture is "timely filed, [then] summary judgment cannot be entered before the motion has been decided even if that decision occurs after the expiration of [the exoneration] period." (People v. Granite State Insurance Co., supra, 114 Cal.App.4th at p. 764.) A premature summary judgment is not void, but it is voidable and subject to being set aside by timely motion in the trial court or on direct appeal (or by collateral attack in unusual cases). (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 663-665 (American Contractors).)
"When the facts are undisputed and only legal issues are involved, we conduct an independent review." (People v. United States Fire Ins. Co., supra, 242 Cal.App.4th at p. 999.)
B. Analysis
In this case, the trial court extended the exoneration period to December 28, 2018. The day before that period expired, American Surety filed a motion to vacate forfeiture and exonerate bail. Thus, when the court entered summary judgment before deciding that motion, it did so prematurely. (People v. Granite State Insurance Co., supra, 114 Cal.App.4th at p. 764.) County Counsel for Napa County (the County), presently appearing for the People, does not dispute that the summary judgment entered in this case was premature. Consequently, the premature summary judgment is voidable (People v. United States Fire Ins. Co., supra, 242 Cal.App.4th at p. 1003), and American Surety seeks to set it aside. We agree the summary judgment should be set aside and are unpersuaded by the County's contrary position, discussed below.
Relying principally on American Contractors, the County argues the summary judgment should be upheld because a voidable judgment must be challenged while the trial court can still correct the mistake. In the County's view, American Surety should be "estopped" from challenging the summary judgment on appeal because it presumably knew the summary judgment was premature but never raised the issue below.
American Surety's notice of appeal—which was stamped "received" by the trial court one day after the court denied American Surety's motion to vacate the forfeiture and exonerate the bond—contained a statement reflecting that American Surety was appealing in part because the summary judgment was prematurely entered. (Capitalization omitted.)
The County's reliance on American Contractors is misplaced. In that case, the trial court prematurely entered summary judgment against the surety on the last day of the appearance period in February 2001. (American Contractors, supra, 33 Cal.4th at p. 659.) The surety did not appeal the judgment, which then became final 60 days from the mailing of the notice of entry of judgment in February 2001. (Ibid.) Instead, the surety moved to extend the appearance period and the trial court granted the extension of the appearance period to October 5, 2001. (Ibid.) Then, on January 7, 2002, more than 90 days after the expiration of the extended appearance period, the surety filed a motion to set aside the summary judgment, discharge the forfeiture, and exonerate the bail, contending that the summary judgment was void because it was entered prematurely. (Ibid.)
The issues before the Supreme Court were (1) whether the premature entry of summary judgment "rendered the judgment voidable or void" and (2) "whether, if it is merely voidable, it was subject to collateral attack long after the judgment was final." (American Contractors Indemnity Co., supra, 33 Cal.4th at p. 660, italics added.) Regarding the first question, the Supreme Court held that the premature entry of summary judgment was voidable, not void, insofar as the trial court's failure to comply with section 1306 did not effect a fundamental loss of jurisdiction. (Id. at p. 663.) As for the second question, the court applied the following rule: "collateral attack on a voidable but final judgment is not available absent unusual circumstances . . . that precluded earlier challenge of the judgment." (Id. at p. 665, italics added.) The court then concluded that the premature judgment was not subject to collateral attack nearly a year after its entry because no exceptional circumstances precluded an "earlier or more appropriate" attack such as by a motion to set aside or by direct appeal. (Ibid.) The court did not rely on estoppel principles and stated that "a voidable judgment must be challenged while the trial court or Court of Appeal can still correct the mistake." (Ibid., italics added.)
American Contractors does not support the County's argument that American Surety should be estopped from attacking the summary judgment. As indicated, American Contractors neither relied on estoppel principles nor discussed estoppel at length. Moreover, American Contractors expressly stated that a direct appeal is a valid avenue for pursuing relief from a premature summary judgment, and it said nothing of requiring a motion in trial court prior to the filing of a direct appeal.
Other cases contain similar language apparently recognizing that sureties may challenge the entry of a premature summary judgment either by a timely motion in the trial court, or by direct appeal as American Surety did here. (See, e.g., People v. United States Fire Ins. Co., supra, 242 Cal.App.4th at p. 1003 ["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"]; People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1076.)
Aside from American Contractors, the County generally refers to People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13 for the proposition that equitable principles apply to bail forfeiture proceedings. The County, however, neglects to present a developed argument with meaningful legal analysis and citations to the record. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
In any event, the application of estoppel appears particularly inappropriate in this case. In essence, the County bases its estoppel claim on the assumption that counsel for American Surety knew the summary judgment was premature at the January 17, 2018 hearing on the motion to vacate the forfeitures and exonerate the bonds. But the County does not claim to have been "ignorant, actually and permissibly, of the truth" concerning the date the summary judgment was entered; nor has the County established that American Surety concealed facts to prevent it from discovering the summary judgment was prematurely entered. (San Diego Mun. Credit Union v. Smith (1986) 176 Cal.App.3d 919, 923 [elements necessary to establish equitable estoppel].) Indeed, both County Counsel and a deputy district attorney were present at the hearing on the motion, and neither raised the issue of prematurity at that time. Mindful of the language employed in American Contractors that a direct appeal is a valid avenue for pursuing relief from a premature summary judgment, and also of the twin principles that the law disfavors forfeitures and that the bail forfeiture statutes must be strictly construed in favor of the surety (People v. Frontier Pac. Ins. Co. (1998) 63 Cal.App.4th 889, 894), we decline to hold that American Surety is either estopped or otherwise precluded from challenging the prematurity of the summary judgment on appeal without having first raised it in the trial court.
Finally, American Surety contends application of section 1306 requires that we exonerate the bail. We agree.
As stated, section 1306, subdivision (a), requires that the court enter summary judgment within 90 days of the expiration of the appearance period. Section 1306, subdivision (c), expressly provides that if 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.
Here, the motion to vacate forfeiture and exonerate bail was decided on January 17, 2019. Therefore, the 90-day period for entering summary judgment has long since expired and there is no contention from either party that the court entered summary judgment during that time. Because it is now impossible to enter summary judgment within the statutorily mandated 90-day period, bail must be exonerated. (People v. United States Fire Ins. Co., supra, 242 Cal.App.4th at pp. 1010-1011.)
Notably, the trial court issued an amended summary judgment in this case on January 31, 2019, but this amended judgment indicated it was "nunc pro tunc" to December 28, 2018, i.e., the date the original and premature summary judgment was signed. The County does not argue this amended judgment can now be used to defeat the premature summary judgment argument, or that it prevents exoneration of the bond pursuant to section 1306, subdivision (c).
The County's sole argument on this point is that County of Orange v. Classified Ins. Corp. (1990) 218 Cal.App.3d 553 held the two-year period for enforcing a summary judgment (§ 1306, subd. (f)) is stayed when a surety files an appeal and posts an appeal bond pursuant to Code of Civil Procedure section 917.1, and that the same holding should apply to the instant 90-day period since American Surety posted an appeal bond in this matter. We are unpersuaded. The case the County relies on is not on point, and Code of Civil Procedure section 917.1 specifically applies to enforcement of judgments, not to the statutory time limits for entering summary judgment after bail is declared forfeited. The County cites no other authority holding or otherwise recognizing that the 90-day period is tolled during the pendency of an appeal. (Cf. County of Sacramento v. Insurance Co. of the West (1983) 139 Cal.App.3d 561, 565 [concluding 90-day period to enter summary judgment was not tolled by an appeal from the denial of the surety's motion to vacate forfeiture].)
In sum, we conclude the premature summary judgment must be reversed and the bond exonerated.
DISPOSITION
The summary judgment is reversed. The matter is remanded to the trial court with directions to enter a new order setting aside the summary judgment and exonerating the bond. American Surety shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Fujisaki, Acting P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.