Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF615515.
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Appellant American Contractors Indemnity Company (hereafter, the Surety) appeals from the trial court’s order denying its motion to set aside the summary judgment, discharge the forfeiture, and exonerate bail. According to the Surety, the trial court lacked jurisdiction to declare a bail forfeiture because its declaration was untimely. The Surety also contends that the summary judgment is void because it was entered prematurely. For the reasons stated below, we disagree with both contentions and therefore we will affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
On April 9, 2006, the Surety issued a $25,000 bail bond to ensure that the accused, Armando Jesus Yasin, would appear in court. The bail bond stated that Yasin was scheduled to appear in court on April 25, 2006, at 9:00 a.m. Yasin was released from jail on April 9, 2006, according to the Santa Clara County Department of Correction’s bail receipt, which also stated that Yasin was to appear in court on April 25, 2006, at 9:00 a.m. The record reflects that on April 25, 2006, at 9:00 a.m., the trial court held a “No Complaint Calendar.” Yasin appeared on the “No Complaint Calendar,” as indicated by the handwritten notation “present” next to his name on the document entitled “No Complaint Calendar,” and was given an arraignment date of May 9, 2006, by the court clerk.
On January 6, 2009, this court granted respondent’s motion to augment the record with certified copies of the “No Complaint Calendar of Appearances” dated April 25, 2006, at 9:00 a.m., the minute order dated May 9, 2006, and the criminal complaint filed on April 25, 2006.
The complaint was filed on April 25, 2006. It charged Yasin with carrying a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1); count 1), carrying a loaded firearm on the person (§ 12031, subd. (a)(1); count 2), possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3), possession of ammunition by a prohibited person (§ 12316, subd. (b); count 4), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 5), possession of controlled substances while armed with a loaded firearm (Health & Saf. Code, § 11370.1; count 6), child endangerment (§ 273a, subd. (b); count 7), possession of marijuana while driving (Veh. Code, § 23222, subd. (b); count 8), altering the identification of a firearm (§ 12090; count 9), and alleged a prior strike conviction for assault with a deadly weapon (§§ 245, subd. (a)(1), 667.5, subd. (c), 1192.7, subd (c).)
All statutory references are to the Penal Code unless otherwise indicated.
Yasin appeared in court for his arraignment on May 9, 2006. The case proceeded to a Romero hearing on March 19, 2007. Yasin did not appear at the March 19, 2007 hearing and as a result the trial court issued a notice of bail forfeiture on March 21, 2007. The notice stated that the bail bond of $25,000 was forfeited on March 19, 2007, when Yasin failed to appear in court, and that the forfeiture would become final on September 22, 2007 (180 days plus five for mailing) unless Yasin was surrendered to the court or to custody before that date.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The Surety does not contend that Yasin failed to appear at any required court appearance between April 25, 2006, and March 19, 2007.
The Surety then brought a motion to extend the 180-day exoneration period pursuant to section 1305.4. On October 12, 2007, the trial court granted the motion on the Surety’s showing of good cause and tolled the exoneration period to and including January 11, 2008. The court also set a hearing date of January 11, 2008, “for either appearance of Mr. Yasin or further showing of good cause for further extension.” When neither Yasin nor the Surety appeared on January 11, 2008, on the 9:00 a.m. calendar, the trial court ordered entry of summary judgment.
The record does not reflect if a written motion to extend the exoneration period was filed by the Surety. No written motion was included in the record on appeal.
Judgment was entered against the Surety on January 11, 2008, in the amount of $25,000. The court clerk mailed a notice of entry of judgment and file-stamped copies of the judgment and the proof of service to the Surety and the bail agent on January 11, 2008.
On April 2, 2008, the Surety filed a motion to set aside the summary judgment, discharge the forfeiture and exonerate bail. The Surety argued that the trial court had lost jurisdiction over the bond when it failed to declare a forfeiture on April 25, 2006. According to the Surety, “[t]he record fails to reflect that [Yasin’s] case was called on April 25, 2006, or that [Yasin] appeared on that date or that an excuse was offered for the non-appearance. As a result the court was under a duty to forfeit bail on April 25, 2006, and when they failed to do so they lost jurisdiction over the bond. [Citation.]” The Surety also argued that the summary judgment was prematurely entered on January 11, 2008, because the trial court had extended the exoneration period to and including January 11, 2008. The Surety further claimed that neither it nor the bail agent had received a notice of entry of judgment.
On May 23, 2008, the trial court denied the motion to set aside the summary judgment, discharge the forfeiture and exonerate bail. The record does not include a reporter’s transcript for the May 23, 2008 hearing on the motion and the minute order of that date does not reflect the trial court’s reasoning.
The Surety filed a notice of appeal from the May 23, 2008 order on June 19, 2008.
III. DISCUSSION
On appeal, the Surety makes two arguments in support of its contention that the trial court erred in denying its motion to set aside the summary judgment, discharge the bond forfeiture, and exonerate the bond: (1) the trial court lost jurisdiction over the bond when it failed to declare a bond forfeiture on April 25, 2006; and (2) the summary judgment is void because it was entered prematurely on January 11, 2008. We will address the jurisdiction issue first.
A. Jurisdiction
The Surety asserts that because the jailor ordered Yasin “to appear for arraignment on April 25, 2006.... [T]he trial court was under a duty to calendar and call the case to retain jurisdiction and to order [Yasin] to return on a future date. Having failed to do so, it lost jurisdiction, and the bail was exonerated as a matter of law on April 25, 2006.” The Surety’s argument relies in part upon the clerk’s certificate filed on July 17, 2008, which states, “After a due and diligent search, I am unable to locate the following document designated by the appellant: 2. Minutes of 4/25/06.”
The People disagree, contending that section 1269b, subdivision (a) authorized the court clerk to continue the April 25, 2006 arraignment date to May 9, 2006, because no complaint had been filed against Yasin. They further explain that because Yasin returned to court for his arraignment on May 9, 2006, the trial court had jurisdiction to forfeit the bond, pursuant to section 1305, when Yasin later failed to appear on March 19, 2007.
Our analysis is governed by the pertinent provisions of the Penal Code regarding bail forfeiture. Pursuant to section 1269b, subdivision (a), the officer in charge of the jail in which the arrested person is in custody may approve and accept bail, sign an order for release, set the time and place for the person to appear before the court, and give notice of the court appearance. (People v. Ranger Ins. Co. (2006) 145 Cal.App.4th 23, 27 (Ranger).) Subdivision (h) of section 1269b provides, “If a defendant or arrested person so released fails to appear at the time and in the court so ordered upon his or her release from custody, Sections 1305 and 1306 apply.”
Section 1269b, subdivision (a) provides, “The officer in charge of a jail in which an arrested person is held in custody, an officer of a sheriff’s department or police department of a city who is in charge of a jail or is employed at a fixed police or sheriff’s facility and is acting under an agreement with the agency that keeps the jail in which an arrested person is held in custody, an employee of a sheriff’s department or police department of a city who is assigned by the department to collect bail, the clerk of the superior court of the county in which the offense was alleged to have been committed, and the clerk of the superior court in which the case against the defendant is pending may approve and accept bail in the amount fixed by the warrant of arrest, schedule of bail, or order admitting to bail in cash or surety bond executed by a certified, admitted surety insurer as provided in the Insurance Code, to issue and sign an order for the release of the arrested person, and to set a time and place for the appearance of the arrested person before the appropriate court and give notice thereof.”
Pursuant to section 1305, “[w]hen a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (Pen Code, § 1305, subd. (a), fn. omitted.)” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 (American Contractors Indemnity).) “The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).)” (Id. at p. 658.)
Section 1305, subdivision (a) provides, “(a) A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: [¶] (1) Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. [¶] (5) To surrender himself or herself in execution of the judgment after appeal. [¶] However, the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligations under the bond if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment.”
“The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds. (e), (i), 1305.4.)” (American Contractors Indemnity, supra, 33 Cal.4th at p. 658.)
“After the appearance period expires, the trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds. (a), (c).) If summary judgment is not entered within the statutory 90-day period, the bond is exonerated. (§ 1306, subd. (c).)” (American Contractors Indemnity, supra, 33 Cal.4th at p. 658, fns. omitted.)
Section 1306, subdivision (a) provides, “When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture, regardless of the amount of the bail, shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound. The judgment shall be the amount of the bond plus costs, and notwithstanding any other law, no penalty assessments shall be levied or added to the judgment.”
The Surety, as “the party seeking to set aside the forfeiture, has the burden to ‘establish by competent evidence that its case falls within the four corners of these statutory requirements.’ [Citations.]” (County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027.) We review an order granting or denying a motion to set aside a bail forfeiture for abuse of discretion, keeping in mind that the order is “not to be disturbed on appeal unless a patent abuse appears on the record.” (People v. Wilcox (1960) 53 Cal.2d 651, 656; People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.)
Having reviewed the entire record on appeal, we determine that the Surety failed to meet its burden to establish that Yasin did not appear at his first required appearance and therefore the trial court lost jurisdiction to declare a bail forfeiture at a later date. The record reflects that Yasin appeared at his first required court appearance on April 25, 2006, at 9:00 a.m., as noticed by the bond and the Santa Clara County Department of Correction’s bail receipt issued by the jail official. Yasin’s appearance was documented in the certified copy of the trial court’s “No Complaint Calendar” for April 25, 2006, at 9:00 a.m. by the handwritten notation “present.” The record also reflects that the court clerk continued the arraignment date to May 9, 2006. The complaint was filed on April 25, 2006 and Yasin appeared at his arraignment on May 9, 2006. Yasin’s first failure to appear at a required court appearance did not occur until the Romero hearing held on March 19, 2007. The trial court therefore had jurisdiction to declare a bond forfeiture on March 19, 2007, pursuant to section 1305, subdivision (a).
We are not convinced by the Surety’s arguments in support of its contention that the trial court lost jurisdiction over Yasin’s bond on April 25, 2006. First, the lack of a minute order for the proceedings of April 25, 2006, does not indicate that Yasin failed to appear, and therefore the trial court was required to declare a forfeiture on that date to retain jurisdiction over the bond, in light of the certified copy of the April 25, 2006 “No-Complaint Calendar” indicating Yasin’s appearance. The Surety cites no authority for its proposition that a minute order was required to document Yasin’s appearance on April 25, 2006.
Moreover, even assuming that Yasin had failed to appear, the trial court would not have been required to declare a forfeiture on April 25, 2006, in order to retain jurisdiction over the bond, because no complaint had been filed prior to that date. As stated in County of Los Angeles v. Fairmont Specialty Group, supra, 164 Cal.App.4th at page 1025, section 1305, subdivision (a) precludes bond forfeiture at the first court appearance scheduled by the jail official if the criminal complaint has not yet been filed. (See also Ranger, supra, 145 Cal.App.4th at p. 29 [the legislative history for the 1987 amendment to section 1305, subdivision (a), includes a committee report stating that “ ‘this bill provides that no forfeiture shall occur if “no complaint is filed.” ’ ”].)
Second, the Surety’s reliance on Ranger, supra, 145 Cal.App.4th 23 is misplaced because that decision is distinguishable. In Ranger, the accused, Brittany Katora Cook, was notified by the bond and the jail official to appear in court on January 22, 2004. (Id. at p. 25.) The police department subsequently notified Cook that a criminal complaint had not been filed and she was to appear in court at a later date, March 25, 2004. (Id. at p. 26.) After the complaint was filed, Cook appeared as directed on March 25, 2004, but then failed to appear for the preliminary hearing on April 29, 2004. (Ibid.) The trial court declared bail forfeited on April 29, 2004, and entered summary judgment against the surety on January 5, 2005. (Ibid.) On appeal, the judgment was reversed because “the complaint was not filed 15 days after January 22, and because the court did not continue the case on January 22 (or otherwise order Cook to return on a later date), the bond was exonerated on February 6. As a result, the court had no jurisdiction to forfeit bail at the April 29 hearing.” (Id. at p. 30.)
In contrast, in the present case the complaint was filed on the same day as the first appearance date (on April 25, 2006) and the court (not the police department) continued the arraignment date to May 9, 2006. Yasin appeared on April 25, 2006, and the Surety does not dispute that Yasin appeared on all subsequent court appearance dates until he failed to appear at the Romero hearing held on March 19, 2007. Accordingly, the trial court retained jurisdiction to properly declare a bond forfeiture when Yasin failed to appear on March 19, 2007. (Ranger, supra, 145 Cal.App.4th at p. 30.)
B. Summary Judgment
The Surety also contends that the summary judgment is void and must be set aside because it was entered prematurely on January 11, 2008, the last day of the 185-day appearance period. The People, on the other hand, assert that judgment was properly entered on January 11, 2008, following the trial court’s morning session that day at which the Surety did not appear or make a motion to extend the exoneration period.
Assuming, without deciding, that the entry of judgment was premature, we determine that the judgment is voidable, not void. The general rule is that “ ‘[w]hen a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and “thus vulnerable to direct or collateral attack at any time.” [Citation.]’ ” (County of Los Angeles v. Harco National Ins. Co. (2006) 144 Cal.App.4th 656, 661 (Harco).) A judgment is voidable “[w]hen a court has fundamental jurisdiction, but acts in excess of its jurisdiction.... [Citations.]” (Id. at p. 662.) A voidable judgment “is valid until it is set aside, and a party may be precluded from setting it aside by ‘principles of estoppel, disfavor of collateral attack or res judicata.’ [Citation.]” (American Contractors Indemnity, supra, 33 Cal.4th at p. 661.)
With regard to bail bonds, the California Supreme Court has ruled that the court has fundamental jurisdiction over a bail bond “ ‘from the point it is issued until the point it is either satisfied, exonerated, or time expires to enter summary judgment after forfeiture.’ ” (American Contractors Indemnity, supra, 33 Cal.4th at p. 663.) Thus, where the trial court fails to comply with section 1306 by prematurely entering summary judgment, fundamental jurisdiction is retained but the court acts in excess of its jurisdiction and the summary judgment is voidable. (American Contractors Indemnity, supra, 33 Cal.4th at pp. 662-663; Harco, supra, 144 Cal.App.4th at p. 662.)
Applying these rules, the Supreme Court determined that where, as here, the trial court entered summary judgment on the 185th day of the appearance period (§ 1305, subd. (b)), instead of the 186th day, the error “did not deprive the court of jurisdiction over the subject matter of the bail bond forfeiture or personal jurisdiction over the surety, and thus the premature entry of summary judgment was voidable, not void.” (American Contractors Indemnity, supra, 33 Cal.4th at p. 663.)
Unlike a void judgment, a voidable judgment is not vulnerable to attack at any time. “Errors which are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to attack once the judgment is final unless ‘unusual circumstances were present which prevented an earlier and more appropriate attack.’ [Citations.]” (American Contractors Indemnity, supra, 33 Cal.4th at p. 661; People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 716, fn. 7.)
Thus, in American Contractors Indemnity, the California Supreme Court ruled that in the absence of exceptional circumstances, once the judgment is final the surety has no right to collaterally attack a premature summary judgment by bringing a motion to set aside the summary judgment, discharge the forfeiture, and exonerate the bail. (American Contractors Indemnity, supra, 33 Cal.4th at p. 665; People v. Allegheny Casualty Co., supra, 41 Cal.4th at p. 716.)
In the present case, the Surety did not appeal the summary judgment entered on January 11, 2008. Instead, the Surety made a collateral attack on April 2, 2008, when the Surety filed its motion to set aside the summary judgment, discharge the forfeiture and exonerate bail. To determine whether a collateral attack on the January 11, 2008 summary judgment was available on April 2, 2008, we must first determine whether the judgment was final before April 2, 2008. (People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1076.)
In general, a judgment is final if a notice of appeal is not filed on or before the earliest of (1) 60 days after the trial court’s mailing of the notice of entry of judgment or a file-stamped copy of the judgment, (2) 60 days after a party’s service of the notice of entry of judgment or a file-stamped copy of the judgment, or (3) 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1)-(3).) (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1573.) The time to appeal may be extended under rule 8.108. (Id. at p. 1574.) Subdivision (c) of rule 8.108 provides that if, during the time for appeal set forth in rule 8.104(a), a party serves and files a valid motion to vacate the judgment, the time to appeal from the judgment is extended at least 30 days. (Payne v. Rader, supra, 167 Cal.App.4th at p. 1574.)
All further rule references are to the California Rules of Court.
Rule 8.108(c) provides, “If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move--or a valid motion--to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of: [¶] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first notice of intention to move--or motion--is filed; or [¶] (3) 180 days after entry of judgment.”
Here, the trial court served a file-stamped notice of entry of judgment, together with a file-stamped copy of the summary judgment, on both the Surety and the bail agent by United States mail on January 11, 2008, at their addresses as set forth in the bail bond. The summary judgment therefore became final on March 11, 2008, 60 days after service of notice of entry of judgment, unless the appeal period was extended under rule 8.108(c) because the Surety had filed a motion to set aside the judgment.
The record reflects that the Surety filed its motion to set aside the judgment, discharge the forfeiture and exonerate the bond on April 2, 2008, which was 83 days after the trial court’s service of notice of entry of judgment on January 11, 2008. Therefore, even assuming that the Surety’s motion to set aside the judgment constituted a valid motion to vacate the judgment within the meaning of rule 8.108(c), Surety’s motion was not filed within the 60-day appeal period following service of notice of entry of judgment, as set forth in rule 8.104(a). Consequently, Surety’s motion did not operate to extend the appeal period, and the summary judgment became final on March 11, 2008.
Since the summary judgment became final on March 11, 2008, a collateral attack on the judgment was not available on April 2, 2008, when the Surety filed its motion to set aside the judgment, absent a showing that “ ‘unusual circumstances were present which prevented an earlier and more appropriate attack.’ [Citation.]” (Harco, supra, 144 Cal.App.4th at p. 662; American Contractors Indemnity, supra, 33 Cal.4th at p. 665.) We understand the Surety to contend that an unusual circumstance existed in the present case, consisting of (according to the Surety) the trial court’s failure to serve a notice of entry of judgment. The Surety’s contention is based upon the declarations of Andrew Peter Kennedy, an employee of the Surety, and Gus Abril, the bail agent. Kennedy states in his declaration that the Surety never received “a summary judgment of January 11, 2008,” while Abril states in his declaration that his office had “no record of the summary judgment” in its files. Based on these declarations, the Surety argues that the lack of service of the notice of entry of judgment caused the appeal period to extend 180 days from the entry of judgment to July 10, 2008, pursuant to rule 8.104(a)(3), and therefore a collateral attack on the judgment was available when its motion to set aside the judgment was filed on April 2, 2008.
We disagree. “ ‘[Code of Civil Procedure] [s]ection 1013, subdivision (a), provides that the mailing of a notice is complete when it is posted in an envelope “addressed to the person on whom it is to be served, at his [or her] office address as last given by him on any document which he [or she] has filed in the cause....’ [Citation.]” (Modhaddam v. Bone (2006) 142 Cal.App.4th 283, 288.) Thus, the 60-day period to file a notice of appeal begins on the date of mailing of either the notice of entry of judgment or a file-stamped copy of the judgment “and does not depend upon the party’s actual receipt of the document.” (In Syst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134-1135.)
Code of Civil Procedure section 1013, subdivision (a) provides in pertinent part, “In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party’s place of residence. The service is complete at the time of the deposit....”
The Surety’s argument that the appellant’s nonreceipt of the notice of entry of judgment extends the time to appeal to 180 days after entry of judgment (rule 8.104(c)(3)) was rejected in Sharp v. Union Pacific Railroad Co. (1992) 8 Cal.App.4th 357, 360. In that case, the plaintiff claimed, as supported by a declaration from his attorney’s secretary, that he never received the file-stamped copy of the judgment that the defendant had served by mail. (Ibid.) The appellate court determined that the 60-day period for filing the notice of appeal commenced on the day the file-stamped copy of the judgment was mailed, because “service is complete at the time the document is deposited in the mail (Code Civ. Proc., § 1013, subd. (a).) Further, the sender does not have the burden of showing the notice was actually received by the addressee.” (Sharp v. Union Pacific Railroad Co., supra, 8 Cal.App.4th at p. 360.)
Thus, in the present case the 60-day period for filing a notice of appeal commenced on January 11, 2008, the date the trial court served entry of notice of judgment, and expired on March 11, 2008. The Surety did not appeal from the summary judgment or attempt a collateral attack (by filing a motion to set aside the judgment, discharge the forfeiture, and exonerate the bail) during the 60-day period. Therefore, a collateral attack on the summary judgment was precluded on April 2, 2008, because the judgment became final prior to that date.
Finally, we note that the Surety does not contend that the purported lack of notice of entry of judgment prevented it from making a timely collateral attack on the summary judgment. (Harco, supra, 144 Cal.App.4th at p. 662.)
For these reasons, we conclude that the trial court did not err in denying the Surety’s motion to set aside the judgment, discharge the forfeiture, and exonerate the bail.
IV. DISPOSITION
The May 23, 2008, order denying the motion to set aside the summary judgment, discharge the forfeiture and exonerate bail is affirmed. Costs on appeal are awarded to the respondent.
WE CONCUR: MIHARA, J., MCADAMS, J.