Opinion
B301553
04-15-2021
THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE COMPANY, Defendant and Appellant.
Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh, for Defendant and Appellant. Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel, Leonard L. Linares, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. OSJ2319, TA145405) APPEAL from an order of the Superior Court of Los Angeles County, Songhai Miguda-Armstead, Judge. Affirmed. Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh, for Defendant and Appellant. Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel, Leonard L. Linares, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Bankers Insurance Company, through its agent Jail Out Bail Bonds, appeals from an order denying its motion to vacate the forfeiture of a bond Bankers posted to secure the release of Joel Ibarra Lara and the subsequent summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 15, 2018, two days after Lara's arrest, the People charged him with fleeing a pursuing peace officer while driving a vehicle in willful or wanton disregard of the safety of persons or property, in violation of Vehicle Code section 2800.2, subdivision (a). The trial court set bail at $75,000.
On February 16, 2018 Bankers posted a $75,000 bail bond to secure Lara's release from custody. Lara was released that day. When he did not appear in court as ordered, the trial court ordered the bail forfeited.
On February 21, 2018 the trial court mailed notice of the forfeiture to Bankers. The notice triggered a 185-day period (subsequently extended to March 20, 2019) for Lara to appear or Bankers to seek to set aside the forfeiture prior to the trial court entering summary judgment against Bankers. (See Penal Code, §§ 1305, subds. (b) & (c), 1306, subd. (a).)
Undesignated statutory references are to the Penal Code.
On March 19, 2019 Bankers filed a motion to vacate the forfeiture and exonerate bail. Bankers argued the bail contract was void because the jailor did not properly identify Lara upon his arrest (an argument Bankers has abandoned on appeal) and because "bail was set unconstitutionally." On August 23, 2019, after several continuances, the trial court denied the motion.
On August 29, 2019 the clerk of the court executed an application for entry of judgment and a summary judgment against Bankers on the forfeited bond. The trial court signed the judgment the same day. Whether and when the clerk entered this judgment is one of the issues in this appeal. On September 3, 2019 the clerk mailed Bankers notice of entry of judgment on the forfeited bond and demand for payment. Bankers timely appealed from the order denying its motion to vacate the forfeiture and exonerate bail and the ensuing summary judgment.
"An order denying a motion to set aside the forfeiture of a bail bond is appealable." (People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456, 461; see § 1303.5; People v. Financial Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 376.) Although a "surety may generally not appeal a summary judgment where, as here, it has consented in advance to the entry of summary judgment on the bond," a surety may appeal from a summary judgment where, as Bankers contends here, "the trial court did not follow the proper statutory procedures" under section 1305. (People v. Financial Casualty & Surety, at p. 376, fn. 4; see People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 664 [summary judgment in a bail bond proceeding is "appealable where 'the judgment was not entered in accordance with the consent given in the undertaking'"].)
DISCUSSION
A. The Bond Was Not Exonerated for Failure To Enter a Timely Judgment
"A bail bond '"'is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond.'"' [Citation.] When a person for whom a bail bond has been posted and against whom a criminal complaint has been filed fails without sufficient excuse to appear as required, the court must declare the bail forfeited. [Citations.] [¶] Once forfeiture is declared, the surety that posted the bond has a period of 180 days (plus five days for mailing) after the clerk of the court mails a notice of forfeiture to move to vacate forfeiture and exonerate the bond. [Citations.] Upon a showing of good cause, the court may extend this appearance period by no more than 180 days from the date the trial court orders the extension. [Citations.] If the forfeiture has not been set aside by the end of the appearance period, inclusive of any extension, '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.'" (People v. North River Ins. Co. (2020) 53 Cal.App.5th 559, 563 (North River II); see §§ 1305, subds. (a) & (c)(1), 1305.4, 1306, subd. (a).)
Under section 1305, subdivision (c), the trial court has 90 days after the expiration of the 180-day period (plus any extensions) to enter the summary judgment; otherwise, the bond is exonerated. (See People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1011 [where "a proper summary judgment was not entered within 90 days after the date upon which it first could be entered," "the bond must be ordered exonerated"]; County of Los Angeles v. American Bankers Ins. Co. (1996) 44 Cal.App.4th 792, 796 [if the court "'does not enter summary judgment "within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated"'"]; County of Orange v. Classified Ins. Corp. (1990) 218 Cal.App.3d 553, 556 ["if a judgment is not entered within 90 days after the 180-day grace period, the right to entry of summary judgment expires and the bail is exonerated"].) Where the surety has filed, within the 180-day (or properly extended) period, a motion to set aside a forfeiture, the 90-day period begins the day after the court denies the motion. (County of Sacramento v. Ins. Co. of the West (1983) 139 Cal.App.3d 561, 564; see People v. Wilcox (1960) 53 Cal.2d 651, 657 ["Section 1306 can not be construed to require a summary judgment when the court has pending before it an application for relief under section 1305 at the end of the 90-day period."]; People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 765 ["the 90-day period to enter summary judgment does not begin to run until a timely filed motion to vacate forfeiture, heard after the expiration of the exoneration period, has been decided"].)
Here, the trial court denied the motion to vacate the forfeiture on August 23, 2019. The parties agree the trial court had until November 22, 2019 to enter the summary judgment. Did the trial court enter summary judgment by that date? Bankers says no.
And here's (according to Bankers) why: On August 29, 2019 the clerk of the superior court executed under penalty of perjury a document titled "Clerks Application for Entry of Judgment and Summary Judgment Against Surety on Forfeited Bond," stating that the bond was ordered forfeited on February 16, 2018, stating that the time for filing a motion to set aside the forfeiture had elapsed without the court having set aside the forfeiture, and requesting that the court order the entry of judgment against Bankers on the bond. The trial judge signed the judgment the same day. The box in the upper right corner of the form stated that the clerk filed and entered the document, but it does not include a date. Bankers argues that "the entry occurs upon the clerk file-stamping the judgment," that "the entry date of a judgment in counties which do not use judgment books [is] the date file-stamped on the judgment," and that here "the purported judgment, while signed by the judge, was not file stamped, or signed by the clerk." Bankers contends that, because "formal entry of judgment was not timely made" under section 1306, subdivision (c), the bond "was exonerated by operation of law . . . ."
The judgment, however, was file-stamped. There is a stamp in the box in the upper right corner of the judgment that states it was "filed and entered" by "Sherri R. Carter, Executive Officer/Clerk, by Jessica G. Flores, Deputy." That's a file stamp. The file stamp is just missing a date. Can we tell from the record when the clerk entered the judgment, even though the date is missing from the file stamp on the judgment?
Bankers asserts "[i]t is conceded by [the People] that this document is not file-stamped by the clerk." The People make no such concession. On the page of the respondent's brief Bankers cites, the People state that on August 29, 2019 the clerk executed the application for summary judgment and the court signed the judgment. The People do not concede the judgment is not file-stamped.
Yes, we can. The clerk stated under penalty of perjury on August 29, 2019 that "the foregoing" was true and correct. Because the "foregoing" includes the "filed and entered" stamp, which precedes the verification, the clerk must have filed and entered the judgment on or before August 29, 2019. Moreover, the clerk also filed a document titled "Clerks Notice of Entry of Judgment on Forfeited Bond and Demand for Payment," and this document states in the box in the upper right corner it was filed and entered on August 29, 2019. The document states that summary judgment was entered on the forfeited bond on August 29, 2019. Thus, the record shows that the judgment was filed and entered (because the file stamp on it says so) and that it was entered on August 29, 2019 (because the clerk declared so under penalty of perjury and confirmed so on a document filed and entered August 29, 2019). Therefore, because the court entered summary judgment long before the deadline of November 22, 2019, Bankers is not entitled to exoneration of the bond on the ground judgment was not timely entered under section 1306, subdivision (c).
Bankers does not argue the clerk committed perjury.
B. The Trial Court's Alleged Violations of the Defendant's Constitutional Rights Did Not Invalidate the Bond
In In re Humphrey (2021) 11 Cal.5th 135 (Humphrey) the Supreme Court held that the "common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional" and that, "where a financial condition is nonetheless necessary, the court must consider the arrestee's ability to pay the stated amount of bail—and may not effectively detain the arrestee 'solely because' the arrestee 'lacked the resources' to post bail." (Id. at pp. 135-136.) The Supreme Court held: "An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant's appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests." (Id. at p. 156.)
Citing the Court of Appeal decision the Supreme Court in Humphrey affirmed, Bankers argues the bond in this case was void because the trial court violated Lara's constitutional rights by setting the bail amount pursuant to a bail schedule without inquiring into Lara's ability to pay that amount or considering less restrictive bail conditions. Bankers argues that the bond was not "legally set by a constitutional process, to ensure that it was a reasonable calculation of the minimum necessary to ensure the defendant's appearance in court and public safety," that the trial court "failed to follow the constitutionally mandated procedures when setting the amount of bail in this case," that "no findings or statements were made by the court regarding the bail amount, aside from blind reliance on the bail schedule," that "the procedures necessary to ensure due process were not followed when [bail] was set at $75,000," and that the "record fails to reflect that the court made any inquiries into the defendant's financial circumstances, nor did the court inquire whether there were any set of conditions which would secure the defendant's appearance in court without bail."
We agree with the court in People v. The North River Ins. Co. (2020) 48 Cal.App.5th 226 (North River I) that, even if a trial court violates a defendant's constitutional rights in setting bail, and even if a surety has standing to assert the defendant's constitutional rights, the bond and a subsequent summary judgment entered on it are not void. First, a "judgment is 'void' only when the court entering that judgment 'lack[ed] jurisdiction in a fundamental sense' due to the '"entire absence of power to hear or determine the case"' resulting from the '"absence of authority over the subject matter or the parties."'" (Id. at p. 233.) Where a court "'merely act[s] in excess of its jurisdiction or defined power,'" the judgment is voidable but not void. (Id. at pp. 233-234.) The trial court did not lack fundamental jurisdiction over the proceedings; the court had subject matter jurisdiction to declare the forfeiture and enter judgment under sections 1305 and 1306 and had personal jurisdiction over Bankers. (See North River I, at p. 234.)
Second, as the court in North River I observed, any violation of the defendant's constitutional rights would "render the bail order voidable as to the defendant, not as to the surety." (North River I, supra, 48 Cal.App.5th at p. 235.) The bail forfeiture proceedings arose from Bankers' contract with the government to guarantee Lara's appearance in court. (See People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) Therefore, the forfeiture proceedings were "'independent from and collateral to'" the criminal prosecution, and any "errors in [the] trial court's setting of bail during the criminal prosecution" did not let Bankers "off the hook in the collateral bail proceedings." (North River I, at p. 235; see People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891, 897-899 [trial court's "[f]ailure to comply with the procedural requirements of Humphrey . . . did not render the subsequently issued bond void"]; see, e.g., People v. Financial Casualty & Surety, Inc. (2019) 39 Cal.App.5th 1213, 1217, 1225-1227 [assuming the trial court violated the defendant's constitutional rights by conditioning bail on the defendant waiving his Fourth Amendment rights against warrantless searches, the violation did not "vitiate the surety's obligation to comply with the terms of the undertaking"]; People v. Accredited Surety & Casualty Co., Inc. (2004) 125 Cal.App.4th 1, 4, 6-8 [trial court's failure to comply with section 1275 when setting bail did "not operate to exonerate a surety's liability" on the bond].)
Bankers argues that all of these cases were wrongly decided. Bankers asserts that existing case law "misapprehends the definition of excessive bail" and "fundamentally misconstrues the nature of the bail contract." According to Bankers, the court violated Lara's constitutional rights by setting bail without considering Lara's ability to pay, and "when the underlying obligation guaranteed by a surety is invalid, the surety's obligation is also invalid." Or, perhaps more succinctly: Where bail "is not set constitutionally, the entire contract based upon that order is void as against public policy."
As courts have repeatedly pointed out, however, imposing bail without considering the defendant's ability to pay and in violation of the defendant's constitutional rights results in an order that is voidable, not void. (North River I, supra, 48 Cal.App.5th at p. 234.) And voidable by the defendant, not the surety. (See People v. American Surety Co. (2020) 55 Cal.App.5th 265, 271; North River I, at p. 235.) And in any event, the defendant's constitutional rights were not violated in this case because Lara posted a bond. (See People v. American Surety, at p. 271 ["'Although the trial court did not specifically inquire into or make findings regarding [the] defendant's ability to post bail, [the] defendant was undeniably able to do so, and we may reasonably infer his ability to post bail from the fact that he did.'"]; North River I, at p. 237 ["what Humphrey prohibits is the detention of a criminal defendant absent a consideration of his ability to pay," and there is no violation where the defendant is able to post a bond].)
Bankers argues: "When the order setting bail is based on an unconstitutional order, 'a material consideration for the execution of the bond has failed, and the surety cannot be held upon it.' (United States v. Scott (9th Cir. 2006) 450 F.3d 863, 867 n.5; Coburn v. Townsend (1894) 103 Cal. 233, 235)." That sentence, and the passage it cites, seem to support Bankers' position. Neither of the two cases Bankers cites, however, contains the quoted passage, nor does either case have much to do with this case. In Scott the Ninth Circuit held the police may not without probable cause search an individual who is released while awaiting trial, even where the pretrial releasee agrees to such a search as a condition of his or her release. (Scott, at p. 864.) As part of its discussion of own-recognizance release, the court stated: "There may thus be cases where the risk of flight is so slight that any amount of bail is excessive; release on one's own recognizance would then be constitutionally required, which could further limit the government's discretion to fashion conditions of release." (Id. at p. 857, fn. 5.) Scott has nothing to do with a surety's obligation on a bond. As for Coburn, there the Supreme Court held that a bond posted in a condemnation proceeding was void because certain orders in the condemnation action were made under a statute the Supreme Court had declared unconstitutional in 1875, 1876, and 1878. (Coburn, at p. 235.) Not so relevant to the issues in this appeal.
The quote actually comes from Taylor v. Exnicious (1925) 197 Cal. 443, which involved a receiver's bond. In that case the Supreme Court stated: "If the order appointing the receiver be void, a material consideration for the execution of the bond has failed, and the surety cannot be held upon it." (Id. at p. 446.) Here, as discussed, the order setting Lara's bail was, at most, voidable, not void. (Bankers left out the "be void" part of the quote.)
C. Bankers' Unconscionability Argument Is Forfeited and Meritless
Bankers contends that, even if the trial court's order setting Lara's bail at $75,000 is constitutional, the bail contract is unenforceable because it is unconscionable. Applying the California standard for unconscionability in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, Bankers argues that "each of the elements of unconscionability is present": The bail contract was a contract of adhesion because Lara had to either accept its terms or remain in custody, Lara was the weaker party, Lara had "no opportunity for meaningful negotiation in the amount of bail set," and the state "has a pecuniary interest in setting bail at high amounts due to the required premium tax paid by all insurance companies under the California Constitution." Bankers contends that, by "avoiding the well-established and constitutionally mandated process for fixing the amount of bail, the court created an unfair bargaining process that contravened the express public interests of allowing persons accused of crimes to their pretrial freedom."
Bankers did not make this (or any) unconscionability argument in its motion to vacate the forfeiture. Therefore, it is forfeited. (See Westsiders Opposed to Overdevelopment v. City of Los Angeles (2018) 27 Cal.App.5th 1079, 1091 ["'"It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal."'"]; Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 93 [plaintiffs forfeited an unconscionability argument by not raising the issue in the trial court].)
Bankers argues we should exercise our discretion to reach its unconscionability argument because the issue is "a question of law based on undisputed facts." It is true appellate courts have the "discretion to address questions not raised in the trial court when the theory presented for the first time on appeal involves only a legal question determinable from facts that are (1) uncontroverted in the record and (2) could not have been altered by the presentation of additional evidence." (Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228, 1237-1238.) Nevertheless, "[m]erely because an issue is one of law, does not give a party license to raise it for the first time on appeal" (Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1275, fn. 3), and "courts are more inclined to consider new legal issues on appeal where the public interest or public policy is involved" (Wittenberg v. Bornstein (2020) 51 Cal.App.5th 556, 567; see POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 750-751).
Exercising such discretion is not appropriate here. The issue of unconscionability involves factual issues. (See OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 124 ["unconscionability is a fact-specific defense"]; Torrecillas v. Fitness Internat., LLC (2020) 52 Cal.App.5th 485, 502 [same]; Dennison v. Rosland Capital LLC (2020) 47 Cal.App.5th 204, 210 ["Unconscionability is determined based on the unique factual situations of each case."].) Moreover, Bankers' unconscionability argument focuses on the bail setting process, which involves the court and the defendant, not the bail contract, which is between the defendant and the bail bond company.
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.