Opinion
B297108
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. THE NORTH RIVER INSURANCE COMPANY, et al., Defendants and Appellants.
Jefferson T. Stamp for Defendants and Appellants. Mary C. Wickham, County Counsel and Adrian G. Gragas, Assistant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ4131, NA095439) APPEAL from an order of the Superior Court of Los Angeles County, Victoria B. Wilson, Judge. Affirmed. Jefferson T. Stamp for Defendants and Appellants. Mary C. Wickham, County Counsel and Adrian G. Gragas, Assistant County Counsel for Plaintiff and Respondent.
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A surety, The North River Insurance Company (Surety) and its bail agent, Bad Boys Bail Bonds (collectively, Surety), appeal an order denying their motion to set aside the summary judgment on a forfeited bond, vacate the forfeiture, and exonerate the bond.
The Surety contends (1) the summary judgment is void because it was not rendered by the same judicial officer who heard the evidence of the bail forfeiture and declared the forfeiture, and (2) the language of Penal Code section 1306, subdivision (a), i.e., that the summary judgment is to be entered by "the court which has declared the forfeiture," must be interpreted to require the summary judgment to be entered by the same judicial officer that declared the forfeiture.
Penal Code section 1306 states in relevant part at subdivision (a): "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 shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound." (Italics added.)
All further statutory references are to the Penal Code, unless otherwise noted.
In People v. The North River Insurance Co. (Aug. 17, 2020, B295923) ___ Cal.App.5th ___ (North River), Division Seven of this court rejected the same arguments that are being advanced here. We agree with that decision and therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
We have taken judicial notice of the appellate record in the prior appeal (No. B271633) (Evid Code, §§ 452, subd. (d), 459), and the procedural history herein is derived in part from this court's previous opinion in this matter. (People v. North River Insurance Company (July 5, 2018, B271633) [nonpub. opn.].)
On April 17, 2013, the Surety posted a $100,000 bail bond to secure the appearance of criminal defendant Michael Peterson. On March 3, 2014, the trial court in Long Beach declared bail forfeited because Peterson, charged with two counts of burglary, failed to appear in court. Notice of forfeiture was mailed on March 4, 2014, with the appearance period to expire on September 5, 2014.
There were two extensions of the appearance period. On September 5, 2014, the Surety moved for an initial extension, which was granted to March 5, 2015. On March 6, 2015, the Surety moved for a second extension. The motion was untimely because it was filed one day after the already-extended appearance period had elapsed. Nonetheless, the trial court granted the Surety's second extension motion, purporting to extend the appearance period to September 30, 2015.
Meanwhile, another department of the superior court, Department 54 in downtown Los Angeles, which handled all of the bail summary judgments and post-summary judgment orders to show cause, entered summary judgment on the bail bond on March 16, 2015, and mailed notice to the Surety that same day (the first summary judgment).
On April 17, 2015, at a hearing in Department 54 on the order to show cause re summary judgment, the court mistakenly believed that the first summary judgment, entered on March 16, 2015, was premature, and that the second extension motion was timely and lawful.
Peterson did not return to custody by the end of the second extension period and so Department 54 entered another summary judgment on October 1, 2015 (the second summary judgment). The trial court denied the Surety's ensuing motion to set aside the second summary judgment, vacate the forfeiture, and exonerate the bond. The Surety appealed.
2. The previous appeal.
In the prior appeal, the Surety contended the trial court failed to set aside the first summary judgment with the result that the second summary judgment was void, and that the period for enforcing the first summary judgment had already expired.
This court affirmed, concluding the Surety was "estopped to challenge the order denying its motion to vacate the forfeiture and exonerate the bail bond because the [S]urety consented to and benefitted from both the second extension of the appearance period, entered in excess of the Long Beach court's authority, and Department 54's confusion over the validity of the first summary judgment."
The remittitur issued on September 5, 2018.
3. Subsequent proceedings.
On January 17, 2019, the Surety filed another motion to set aside the October 1, 2015 summary judgment, vacate the forfeiture, and exonerate the bond. The order denying that motion is the subject of this appeal. In its moving papers, the Surety contended the summary judgment is void because it was rendered by a judicial officer who did not hear all of the evidence, in violation of the Surety's right to due process. Specifically, Judge Andrews declared the forfeiture of the bail bond, while the summary judgment was signed and entered by Judge Bensinger.
The Surety further argued the use of the definite article "the" in section 1306, subdivision (a), which states the summary judgment is to be entered by "the court which has declared the forfeiture," shows the Legislature intended to require the summary judgment to be entered by the specific judicial officer who declared the forfeiture. (See fn. 1, ante.)
In opposition, the County contended the fact that the judicial officer who entered summary judgment was not the one who declared the bail forfeited did not render the summary judgment void. The County argued, inter alia, entry of summary judgment is based solely on what has transpired since the forfeiture and requires no analysis of the facts underlying the forfeiture, and moreover, entry of summary judgment in a bail forfeiture is a consent judgment entered without a hearing and the proceedings are not adversarial. As for the Surety's statutory argument, the County asserted that the Los Angeles Superior Court, although comprised of a number of judges, is but a single court, and Judge Bensinger had been duly designated by the Criminal Division Supervising Judge to enter all summary judgments pursuant to section 1306 at the relevant time.
On February 15, 2019, after hearing the matter, the trial court denied the Surety's motion to set aside the summary judgment, vacate the forfeiture and exonerate the bond. This appeal followed.
An order denying a motion to vacate a summary judgment on a bail bond forfeiture is an appealable order. (People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592.)
CONTENTIONS
The Surety contends: (1) the summary judgment is void because it was not rendered by the same judicial officer who heard the evidence of the bail forfeiture and declared the forfeiture, in violation of due process; and (2) the statutory language of section 1306, subdivision (a), must be interpreted to require the summary judgment to be entered by the judicial officer who declared the forfeiture.
Because we reject the Surety's arguments on the merits, it is unnecessary to address whether the Surety's contentions are precluded by the doctrine of law of the case.
DISCUSSION
1. No merit to the Surety's arguments that the summary judgment is void.
As a preliminary matter, we note the Surety's 2019 motion to set aside the October 1, 2015 summary judgment as void was not time-barred, because a summary judgment that is void is subject to attack at any time. (People v. International Fidelity Ins. Co., supra, 204 Cal.App.4th at pp. 595-596.)
However, as discussed below, there is no merit to the Surety's substantive arguments that the summary judgment must be set aside as void.
a. No merit to the Surety's claim that entry of summary judgment by a judicial officer other than the one who declared the bail forfeiture deprived the Surety of due process.
The Surety contends that entry of summary judgment by a judicial officer other than the one who declared the bail forfeiture violated constitutional due process.
North River is on point. There, the appellants "insist[ed] that requiring the same bench officer who declared the forfeiture to enter summary judgment is a matter of due process." (North River, supra, ___ Cal.App.5th at p. ___ [p. 9].)
The reviewing court disagreed, stating: "[Appellants'] argument misapprehends the nature of summary judgment in the bail context. Summary judgment following a declaration of forfeiture is a consent judgment entered without a hearing pursuant to the terms of the bail bond. (People v. American Contractors Indemnity Co. (2015) 238 Cal.App.4th 1041, 1047 ['summary judgment in a bail forfeiture is a consent judgment entered without a hearing and the proceedings are not adversarial']; County of Los Angeles v. Amwest Ins. Co. (1983) 147 Cal.App.3d 961, 967.) Once forfeiture has been declared, the surety that posted the bond has a statutory appearance period in which to move to vacate the forfeiture. (People v. American Contractors Indemnity Co. [(2004)] 33 Cal.4th [653,] 657.) If the forfeiture has not been vacated at the end of the appearance period, the court has no choice but to enter summary judgment in accordance with the terms stated in the bond. (§ 1306, subd. (a); County of Los Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th 944, 954 ['[a]fter the exoneration [appearance] period expires—and no timely filed motion to vacate forfeiture or extend the exoneration period is pending—the court lacks jurisdiction to do anything but enter summary judgment'].)" (North River, supra, ___ Cal.App.5th at p. ___ [pp. 9-10].)
Thus, given the nature of summary judgment in the bail forfeiture context, due process does not require that the summary judgment on the forfeited bond be entered by the same judicial officer who declared the bail forfeiture. As Division Seven concluded in North River, these circumstances do not constitute a violation of due process. (North River, supra, ___ Cal.App.5th at p. ___ [pp. 9-10].)
b. No merit to the Surety's claim that the language of section 1306 , subdivision (a), must be interpreted to require summary judgment to be entered by the same judicial officer who declared the bail forfeiture.
The Surety's remaining contention is predicated on the language of section 1306, subdivision (a), which states that when a bond is forfeited and the specified period of time "has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture shall enter a summary judgment[.]" (Italics added.) The Surety asserts this provision requires summary judgment be entered by the same judicial officer who declared the forfeiture.
North River likewise disposes of this argument, stating: "Section 1306 plainly requires the court that declared the forfeiture to enter the summary judgment. However, that language does not state, and does not mean, the same judge of the court must enter both orders. . . . [I]t is the court that has jurisdiction of the matter, not a particular judge. (See People v. Osslo (1958) 50 Cal.2d 75, 104 ['[a]n individual judge (as distinguished from a court) is not empowered to retain jurisdiction of a cause[;] [t]he cause is before the court, not the individual judge of that court']; People v. Madrigal (1995) 37 Cal.App.4th 791, 796 [same].)" (North River, supra, ___ Cal.App.5th at p. ___ [pp. 6-7].)
Because the language of section 1306 does not require the same judge of the court to declare the forfeiture and to enter summary judgment on the forfeited bond, the Surety's statutory argument is unavailing.
DISPOSITION
The February 15, 2019 order denying the Surety's motion to set aside the October 1, 2015 summary judgment, vacate the forfeiture, and exonerate the bond, is affirmed. Respondent shall recover its appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
DHANIDINA, J.