Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. YA068186, Thomas R. Sokolov, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Office of the Los Angeles County Counsel, Ralph L. Rosato, Assistant County Counsel and Joanne K. Nielson, Senior Deputy County Counsel for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Fairmont Specialty Group, the surety, appeals from an order denying a Penal Code section 1305.4 motion to extend the 180-day period to vacate a bail bond forfeiture and exonerate the bond. (All further statutory references are to the Penal Code unless otherwise noted.) We affirm the order.
II. BACKGROUND
On May 18, 2007, the surety posted a $45,000 bail bond for the release of defendant, Antonio Ezell, in the case of People v. Ezell, Los Angeles Superior Court case No. YA068186. Mr. Ezell was charged with five burglary counts and one grand theft count. (§§ 459, 487, subd. (a).) Mr. Ezell failed to appear on August 1, 2007, but was represented by an alternate deputy public defender. Defense counsel advised the trial court Mr. Ezell was attending a funeral. According to the alternate deputy public defender, Mr. Ezell’s father had died. A co-defendant also was not present. The co-defendant’s lawyer requested “a bench warrant hold.” The trial court stated it could issue a warrant and hold it, but only for a few days. The trial court then issued a bail forfeiture order and a bench warrant, but held both until August 6, 2007. The trial court also set the matter for an August 15, 2007 preliminary hearing.
On August 6, 2007, the defendant failed to appear again. The trial court found the failure to appear was without sufficient excuse, ordered the bail forfeited, and issued a bench warrant. On August 8, 2007, the superior court clerk mailed a notice of forfeiture to the surety and its bond agent, Code 3 Bail Bonds.
On February 4, 2008, the surety and its agent, Code 3 Bail Bonds, filed a motion to extend the forfeiture date. The motion was marked “received” on February 4, 2008. We treat the motion as filed on that date. (See United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918; Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1361.) A criminal fugitive investigator, Kevin Appleton, declared in very general terms: diligent efforts had been made over a six-month period to locate defendant; federal, state, and local government resources had been utilized; and a complete background check and data search had been conducted. Mr. Appleton concluded: “Declarant believes the newest information uncovered will prove to be the place where defendant... is now actively visiting. That his apprehension is very real and possible given a 180 day extension of time on this case, to allow investigators to fully develop and complete all leads and information uncovered in this case. We are very optimistic that defendant... will be in our custody before the time granted by the court. However, being cautious we ask the court to consider the time requested in case this defendant proves to be more elusive than previously anticipated.”
On February 8, 2008, the superior court clerk mailed a notice of bail bond forfeiture. The notice stated: “This is to advise you that 180 days has elapsed since the bond hereinafter set forth was ordered forfeited by the court, and of the mailing of the notice of forfeiture. The records show that this forfeiture was not set aside within the 180 day period provided in section 1305 of the Penal Code.... [¶] Demand is hereby made that you tender your check or draft....”
On February 13, 2008, the surety and its agent filed Mr. Appleton’s supplemental declaration detailing the steps taken to locate defendant. Mr. Appleton declared that between August 22, 2007, and January 29, 2008, investigators had: identified and conducted surveillance at two locations Mr. Ezell frequented; spoken with multiple individuals and business owners and had distributed fugitive flyers at and near those locations; established contact with several individuals willing to notify them when Mr. Ezell appeared; and just missed encountering defendant on at least one occasion. Mr. Appleton was confident the defendant would be apprehended.
On February 20, 2008, the trial court denied the motion to extend the forfeiture date as not timely filed. Summary judgment was entered on April 10, 2008. The court clerk’s notice of entry of the summary judgment was served by mail on April 11, 2008.
On May 19, 2008, the surety “by and through its authorized representatives, Kevin Appleton of Code 3 Bail Bonds” filed a section 1305 motion to set aside the summary judgment, vacate the forfeiture and reinstate and exonerate the bond. The surety argued it was error to find the motion to extend was not timely filed. The record on appeal does not include a ruling on the May 19 motion.
III. DISCUSSION
A. The Appeal Is Timely
The County of Los Angeles (the county) argues the appeal is untimely and must be dismissed because it was filed 63 days after the superior court clerk mailed notice of entry of the summary judgment. (Cal. Rules of Court, rule 8.104(a) [notice of appeal must be filed on or before 60 days after the court clerk mails notice of entry].) (All further references to a rule are to the California Rules of Court.) The county further asserts the time to appeal was not tolled by the motion to set aside the summary judgment because: the motion was filed by the bail agent; the motion was not filed by the surety; the bail agent did not have standing to file the set aside motion. We disagree. First, the motion to set aside the summary judgment was filed by the surety “by and through” its agent. Second, a bail agent has standing to challenge a bond forfeiture by seeking to vacate a summary judgment against the surety. (People v. Silva (1981) 114 Cal.App.3d 538, 547-548; see People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66, 70-71 [motion to vacate summary judgment jointly filed by surety and bail agent].) Therefore, the time to appeal was extended under rule 8.108(c) by the service and filing of the motion to vacate the summary judgment. The county does not argue the notice of appeal was untimely under rule 8.108(c).
B. The Forfeiture Law
Our Supreme Court has explained the basics of bail forfeiture and tolling: “While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature. (People v. Wilcox (1960) 53 Cal.2d 651, 654.) ‘The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court.’ (Id. at pp. 656-657; see Stack v. Boyle (1951) 342 U.S. 1, 5 [... ].) ‘In matters of this kind there should be no element of revenue to the state nor punishment of the surety.’ ([People v.] Wilcox, [supra, 53 Cal.2d] at p. 657.) Nevertheless, the ‘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.’ (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22.) Thus, when there is a breach of this contract, the bond should be enforced. (See People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675.) [¶] When 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. (§ 1305, subd. (a).) 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).) 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.)” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657-658, fn. omitted; accord, e.g., People v. Accredited Surety & Cas. Co. (2004) 132 Cal.App.4th 1134, 1138-1139; People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1041-1042.)
Pursuant to section 1305.4, “[T]he surety insurer, the bail agent, the surety, or the depositor may file a motion based upon good cause, for an order extending the 180-day period provided in [section 1305]. The motion shall include a declaration or affidavit that states the reasons showing good cause to extend that period. The court, upon a hearing and a showing of good cause, may order the period extended to a time not exceeding 180 days from its order.” Division Seven of the Court of Appeal for this appellate district discussed the section 1305.4 “good cause” requirement in County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027-1028: “‘[Good cause] means an explanation of what efforts [the surety] made to locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful.’ (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 681.) ‘Efforts by a surety during the first 180 days might not always translate into good cause for an extension if it is unclear that a defendant will likely be captured given more time. While the Ranger court was concerned that a surety would sit on its hands for 180 days and then come to court looking for an extension ([People v.] Ranger [Ins. Co.], supra, 81 Cal.App.4th at p. 682, neither can the surety be entitled to another 180 days simply by demonstrating it exerted some effort. The inquiry must be prospective as well as retrospective; otherwise, an extension does not serve the statute’s policy of returning fleeing defendants to custody. That policy is best served by the surety showing that another 180 days might be productive.’ (People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1357.) [¶] ‘Given the underlying policy of avoiding forfeitures in favor of bringing defendants before the court, a trial court, faced with a section 1305.4 motion for extension, should draw all inferences in favor of the surety. [Citation.] The good cause showing under section 1305.4 is a low threshold for the movant. 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., supra, 137 Cal.App.4th at p. 1358.” (Accord, e.g., People v. Ranger Ins. Co. (2007) 150 Cal.App.4th 638, 644-647.)
The trial court’s decision on a section 1305.4 motion is generally reviewed for abuse of discretion. (People v. Wilcox (1960) 53 Cal.2d 651, 656; County of Los Angeles v. Fairmont Specialty Group, supra, 164 Cal.App.4th at p. 1028; People v. Ranger Ins. Co., supra, 150 Cal.App.4th at p. 644.) However, the interpretation of a statute as applied to uncontested facts is a pure question of law subject to de novo review. (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 146, 151; People v. Lexington Nat. Ins. Co. (2007) 158 Cal.App.4th 370, 374, fn. 4.) With respect to statutory construction, the Supreme Court has explained: “The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.] Ordinarily, the words of the statute provide the most reliable indication of legislative intent. [Citation.]” (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1152.) We scrutinize the actual words of the statute and give them a common sense meaning. (California Teachers Assn. v. Governing Bd. Of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633; Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763.)
The law disfavors forfeitures; as a result, bail bond forfeiture statutes are strictly construed. (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195; County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62.) As we discussed in People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725: “[B]ecause the law disfavors forfeitures and statutes imposing them, sections 1305 and 1306 are strictly construed in favor of the surety to avoid harsh results. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 921; People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1384; People v. American Bankers Ins. Co. (1991) 227 Cal.App.3d 1289, 1294[, overruled on another point in People v. National Auto. and Cas. Ins. Co. (2000) 82 Cal.App.4th 120, 126].) The Court of Appeal has digested the relevant decisional authority as follows: ‘The provisions of sections 1305 and 1306 must be strictly followed or the court acts without or in excess of its jurisdiction. (Burtnett v. King (1949) 33 Cal.2d 805, 807.) The burden is upon the bonding company seeking to set aside the forfeiture to establish by competent evidence that its case falls within the four corners of these statutory requirements. (People v. Niccoli (1951) 102 Cal.App.2d 814, 819.) [¶] The course set out in a jurisdictional statute must be precisely followed or the court loses jurisdiction and its actions are void. (Hansen v. Martin (1883) 63 Cal. 282, 285.)’ (People v. American Bankers Ins. Co. (1992) 4 Cal.App.4th 348, 354.)”
C. The Surety’s Contentions
First, the surety argues the trial court ordered a bail forfeiture on August 1, 2007, but failed to give notice thereof and as a result, it was deprived of jurisdiction to later declare a forfeiture. (See People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 907; People v. Bankers Ins. Co. (2009) 171 Cal.App.4th 1529, 1532; County of Los Angeles v. Fairmont Specialty Group, supra, 164 Cal.App.4th at p. 1024; People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552-1553.) We disagree with the surety’s characterization of the facts. On August 1, 2007, the trial court issued a bail forfeiture and a bench warrant, but ordered both held until August 6, 2007. The surety does not dispute that based on defense counsel’s representation Mr. Ezell was attending a family funeral, the trial court had reason to believe that sufficient excuse might exist for the nonappearance. (§ 1305.1.) Under those circumstances, the trial court could order a bail forfeiture and a bench warrant held until a continued date. (§ 1305.1; see People v. Harco Nat. Ins. Co. (2005) 135 Cal.App.4th 931, 934-935; People v. National Auto. & Cas. Ins. Co. (2004) 121 Cal.App.4th 1441, 1450-1451; People v. Frontier Pacific Ins. Co. (2000) 83 Cal.App.4th 1289, 1293; County of Los Angeles v. Ranger Ins. Co. (1996) 48 Cal.App.4th 992, 994-996; People v. National Automobile & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 303-307; 20A Cal.Jur.3d, Criminal Law: Pretrial Proceedings, § 666.) Here, contrary to the surety’s argument, the trial court did not order a bail forfeiture on August 1, 2007. Instead, the trial court, with reason to believe sufficient excuse may exist, continued the case for a reasonable period without ordering a bail forfeiture to enable the defendant to appear. (§ 1305.1)
Second, the surety contends even if the trial court did not declare a forfeiture on August 1, 2007, it had no jurisdiction to do so on August 6, 2007, because there was no specific order commanding Mr. Ezell’s appearance on that date. Stated differently, the surety argues bail could not be forfeited on August 6, 2007, because Mr. Ezell’s presence in court on that date was not “lawfully required” as those words are used in section 1305, subdivision (a). Section 1305, subdivision (a) states in part: “(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: [¶]... [¶] (4) Any... occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required.” We find Mr. Ezell’s presence in court on August 6, 2007, was “lawfully required” within the meaning of section 1305. Defense counsel was present when the trial court ordered a bail forfeiture and bench warrant held to August 6, 2007. This order was specifically made so that Mr. Ezell could show an excuse for his failure to appear on August 1. Defense counsel was in contact with Mr. Ezell. There is no question defense counsel understood Mr. Ezell would have to be present in court on or before August 6. (See People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953-955; People v. American Bankers Ins. Co. (1990) 225 Cal.App.3d 1378, 1380-1383 [defendant’s presence in court required by rule]; People v. Sacramento Bail Bonds (1989) 210 Cal.App.3d 118, 120-122 [same]; but see People v. Classified Ins. Corp. (1985) 164 Cal.App.3d 341, 346 [order to appear or other actual notification from court required].)
Third, the surety asserts it is entitled to a reversal of the summary judgment and exoneration of the bail bond because the trial court mistakenly believed the motion to extend the 180-day exoneration period was not timely filed. The surety had 185 days from the date the court clerk mailed the notice of forfeiture, on August 8, 2007, to file its motion. (§ 1305, subdivision (b); People v. American Contractors Indem. Co., supra, 33 Cal.4th at p. 658; County of Los Angeles v. Fairmont Specialty Group, supra, 173 Cal.App.4th at p. 150, fn. 3; People v. Lexington Nat. Ins. Co., supra, 158 Cal.App.4th at p. 373, fn. 2.) The last day to file the motion was thus February 9, 2008. The surety filed its motion to extend the 180-day period on February 4, 2008. Therefore, the surety concludes, the motion was timely. We reject the surety’s position. First, in the trial court, the bail bond representative conceded the motion was untimely. The present argument was thus forfeited. (Civ. Code, § 3516 [“Acquiescence in error takes away the right of objecting to it”]; Secord v. Quigley (1895) 106 Cal. 149, 150-151; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 238, 283, 286; In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) Second, although the surety filed its motion on February 4, 2007, the statutorily required nonconclusory declaration explaining the steps taken to locate the defendant was not filed until February 13, 2008. (§ 1305.4; People v. Ranger Ins. Co., supra, 81 Cal.App.4th at pp. 681-682 & fn. 6) The trial court could reasonably conclude the motion was not complete, as lacking the required good cause declaration, until February 13, 2008, a date beyond the 185 days. (See Hollywood Screentest of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th 631, 643 [trial court had discretion to refuse to consider supplemental declaration filed in violation of Code of Civil Procedure section 437c briefing sequence]; G.E. Hetrick & Associates, Inc. v. Summit Construction & Maintenance Co. (1992) 11 Cal.App.4th 318, 325, fn.4 [same].) It would not have been an abuse of discretion to conclude the bare bones conclusory declaration filed on February 4, 2008 failed to meet the good cause showing required by Section 1305.4. (County of Los Angeles v. Fairmont Specialty Group, supra, 164 Cal.App.4th at pp. 1027-1028; People v. Ranger Ins. Co., supra, 150 Cal.App.4th at pp. 643-647; People v. Ranger Ins. Co., supra, 81 Cal.App.4th at pp. 681-682 & fn. 6.)
IV. DISPOSITION
The order is affirmed. The County of Los Angeles is to recover its costs on appeal from the surety, Fairmont Specialty Group.
We concur: MOSK, J., KRIEGLER, J.