People v. Bankers Ins. Co.

Filed 6/10/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

A157633 v. BANKERS INSURANCE CO., (San Mateo County

Super. Ct. No. 18NF009324-A) Defendant and Appellant.

Bankers Insurance Company (the Surety) appeals from trial court orders denying its motion to vacate forfeiture and exonerate bail and denying its subsequent motion to toll time. Because the trial court failed to timely enter summary judgment and now lacks jurisdiction to enforce the forfeiture under Penal Code section 1306, subdivision (c), in any event, we will not reach the merits. Instead, we will direct the trial court to enter an order exonerating the bond.

FACTUAL AND PROCEDURAL BACKGROUND On August 9, 2018, the Surety, through its bail agent Bail Hotline Bail Bonds, posted a bond of $100,000 for the release of Jammie Lee (Lee or defendant) from the San Mateo County Jail.

On September 13, 2018, Lee failed to appear at a scheduled preliminary hearing. The court issued a bench warrant for Lee and ordered the bail forfeited.

On September 21, 2018, the clerk of the court mailed a “Notice of Order Forfeiting Bail” to the Surety. The notice provided, “You may seek relief from this forfeiture in accordance with California Penal Code sections 1305 through 1306. You have 180 days from the date of this notice to seek such relief, plus 5 more days if this notice was mailed to you.”

Motion to Vacate Forfeiture and Exonerate Bail

On March 25, 2019, the Surety filed a motion to vacate the forfeiture and exonerate the bail. Supporting exhibits indicated that Lee was currently in custody in the Alameda County Jail on federal charges and that the San Mateo County District Attorney’s Office had been notified of defendant’s detention in federal custody. In a supporting declaration, Roman Clark, a fugitive recovery agent, stated, first, that Alameda County was informed of Lee’s San Mateo County warrant, but a jail employee would not sign a form accepting or declining surrender and, second, that a law enforcement employee in San Mateo County reported she was unable to place a hold on Lee.1

Clark declared he located defendant in custody at the Alameda The Surety advanced three arguments in support of its motion: (1) the court was required to vacate the forfeiture and exonerate the bail under Penal Code section 1305, subdivision (c)(3) (§ 1305(c)(3))2 because defendant had been surrendered by the bail agent to local law enforcement agencies; (2) if the district attorney were to choose not to extradite defendant, exoneration of bail was required under section 1305, subdivision (f) (§ 1305(f)); and (3) if the district attorney were to place a hold on defendant, the court should exonerate bail under section 1305, subdivisions (i) and (c)(3).

In support of its first argument, the Surety relied on the principle “where the government interferes with the performance of the bail contract or makes performance impossible the bond is exonerated.” It argued Clark diligently tried to have defendant surrendered on the warrant, but “Despite proper surrender documentation given by the bail agent to the jailer on January 4, 2019, . . . the Alameda County Sheriff’s Department refused to accept the surrender of the defendant on the out of county warrant.”

As alternative relief, the Surety requested tolling urging, “At the very least the bondsman is entitled to a tolling of time pursuant to Penal Code § 1305(e) while the defendant is disabled from appearing in court because of his incarceration in Federal Custody at the Alameda County Jail.”3 The motion concluded, “Wherefore, it is respectfully requested that the court vacate the forfeiture and exonerate bail or in the alternative toll time.”

In opposition, the People argued the Surety had not offered competent evidence that the person located in the Alameda County Jail was, in fact, Lee,4 and, in any event, there was no “surrender” to custody given that the Surety never arrested defendant and never delivered defendant to the court or to law enforcement. The People further claimed the Surety failed to demonstrate that surrender of defendant “was made impossible” and asserted section 1305(f) did not apply because the San Mateo District Attorney was electing to seek extradition of defendant.5

A hearing on the motion was held on April 15, 2019. The trial court indicated it would deny the motion because section 1305(f) did not apply (since the District Attorney was electing to extradite Lee) and because the alternative request for tolling was not properly referenced in the notice of motion. The court did not mention the Surety’s primary argument that it to appear in court during the remainder of the 180–day period, and “[t]he absence of the defendant is without the connivance of the bail.”

The Surety’s attorney then argued its request for tolling was properly before the court under “the Lexington decision.”7 The court denied the motion “without prejudice” and indicated the Surety could “resubmit it correctly.” The Surety’s attorney asked for a continuance rather than denial

On April 19, 2019, the Surety filed a motion requesting tolling under section 1305(e). The People opposed, arguing the motion was untimely because it was filed after the 180–day period following the notice to the Surety of forfeiture by the clerk of the court. The court denied the motion.

DISCUSSION

While the Surety does argue it was entitled to exoneration or tolling at the time the trial court denied its motion to vacate forfeiture and exonerate bond, its primary contention on appeal is that it is entitled to appellate relief because the trial court has now lost jurisdiction to enforce the forfeiture. The Surety asserts that, after the denial of its motion, the trial court failed to enter summary judgment against the Surety within the statutory period for doing so and therefore, pursuant to section 1306, subdivision (c) (§ 1306(c)), “the bail is exonerated.”

Before we can address this contention, we must decide whether we should consider a fact that did not exist when the court made its ruling.

“It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court’s judgment [or appealable order], an appellate court will consider only matters which were part of the record at the time the judgment [or order] was entered. [Citation.] This rule preserves an orderly system of appellate procedure by preventing litigants from circumventing the normal sequence of litigation.” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 (Reserve Insurance).)

Our Supreme Court has recognized, however, that this rule “is somewhat flexible.” (Reserve Insurance, supra, 30 Cal.3d at p. 813.) For example, “courts have not hesitated to consider postjudgment events when legislative changes have occurred subsequent to a judgment [citations] or when subsequent events have caused issues to become moot [citation].” (Ibid.) In Reserve Insurance, our high court deemed it appropriate to consider the fact that a plaintiff insurance company became insolvent postjudgment in resolving an appeal in a declaratory judgment action regarding insurance coverage. (Id. at pp. 805–806, 813.) The court reasoned, “because the fact [of insolvency] is not in dispute, we do not usurp the fact-finding function of the trial court. A prompt determination by us avoids the necessity for repetitive litigation of issues that have been fully briefed. Furthermore, the court records regarding [the insurance company]’s insolvency would properly be the subject of judicial notice.” (Id. at p. 813.)

We believe this appeal presents that rare case where it is appropriate for us to consider events that occurred after entry of the appealed order. It is undisputed that no summary judgment has been entered in this case. A prompt determination that the bond has been exonerated avoids repetitive litigation. And the court record showing the absence of a summary judgment would properly be the subject of judicial notice (Evid. Code, § 452, subd. (d)). Accordingly, we will consider the new fact that the trial court has failed to enter summary judgment as of September 21, 2020.

“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).)” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658 (American Contractors).) Here, defendant failed to appear on September 13, 2018, and the clerk mailed a notice of forfeiture on September 21, 2018, starting the 185–day appearance period. (See ibid.; § 1305, subd. (b)(1).)8

After the appearance period “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.” (§ 1306, subd. (a).)

But the trial court’s authority to enter summary judgment is time limited. Section 1306(c), provides, “If, because of the failure of any court to promptly perform the duties enjoined upon it pursuant to this section, 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.” (Italics added.) This time limit is jurisdictional. (See American Contractors, supra, 33 Cal.4th at p. 663 [“ ‘Under the Penal Code, a court has jurisdiction over a bail bond from the point that it is issued until the point it is either satisfied, exonerated, or time expires to enter summary judgment after forfeiture’ ” (italics added)]; People v. Surety Ins. Co. (1973) 30 Cal.App.3d 75, 79–80 [“There can be no doubt the Legislature intended to impose a 90–day time limit in which to enter summary judgments on defaulted bail which is

Generally, the 90–day period during which the trial court has authority to enter summary judgment begins after the 185–day appearance period. However, “in cases where a motion to vacate forfeiture is timely filed prior to the expiration of the [appearance] period, but not decided until after that period, the 90–day period to enter summary judgment begins to run when the motion is denied.” (People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 767 (Granite State).)

In this case, the Surety filed a timely motion to vacate forfeiture and exonerate bond on the 185th day of the appearance period, March 25, 2019. Therefore, under Granite State, the trial court’s 90–day period to enter summary judgment began after the court denied the Surety’s motion on April 15, 2019. That period expired July 15, 2019.9 Since it is not disputed that summary judgment was not entered by July 15, 2019, the trial court’s “right to [enter summary judgment] expire[d] and the bail is exonerated.” (§ 1306(c), italics added; see American Contractors, supra, 33 Cal.4th at p. 658 [“If summary judgment is not entered within the statutory 90–day period, the bond is exonerated”].)

Under these circumstances, there is no purpose in our determining whether the trial court erred in denying either the Surety’s motion to vacate forfeiture and exonerate bond or its subsequent motion to toll because, in any event, the People cannot enforce the forfeiture of the bond. The appeal of the trial court’s rulings has been, in effect, mooted by subsequent events.

The People offered no argument for avoiding the result that the bond has been exonerated by operation of law under section 1306(c). At oral argument, county counsel stated he had no evidence that the period for entering summary judgment had not expired, and he suggested that if the Surety were to file a motion to exonerate the bond under section 1306(c) in the trial court, the People would likely file a non-opposition. Thus, there is no dispute about either the absence of summary judgment in this case or the legal consequence of that absence. In concluding the bond is exonerated, “we do not usurp the fact-finding function of the trial court” because the facts are undisputed. (Reserve Insurance, supra, 30 Cal.3d at p. 813.)

We reiterate the general “rule of appellate procedure [is] that, when reviewing the correctness of a trial court’s [order], an appellate court will consider only matters which were part of the record at the time the [order] was entered.” (Reserve Insurance, supra, 30 Cal.3d at at p. 813.) This rule “preserves an orderly system of appellate procedure [and] prevent[s] litigants from circumventing the normal sequence of litigation.” (Ibid.) But in this unusual case, in the interests of judicial efficiency, we will direct the trial court to enter an order exonerating the bond.

DISPOSITION

The trial court is directed to enter an order exonerating the bond.

_________________________ Miller, J.

WE CONCUR: _________________________ Richman, Acting P.J. _________________________ Stewart, J.

A157633, People v. Bankers Ins. Co. Court: San Mateo County Superior Court Trial Judge: Hon. Amarra A. Lee Law Office of John Rorabaugh, John Mark Rorabaugh, Crystal L. Rorabaugh, for Defendant and Appellant John C. Beiers, County Counsel, Joseph F. Charles, Deputy County Counsel, for Plaintiff and Respondent A157633, People v. Bankers Ins. Co.