County of Los Angeles v. Alleheny Casualty Co.

Filed 12/31/07 County of Los Angeles v. Alleheny Casualty Co. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County,
Larry P. Fidler, Judge. Affirmed.

Law Offices of Benjamin P. Wasserman and Benjamin P. Wasserman for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel and Brian T. Chu, Principal Deputy County Counsel for Plaintiff and Respondent.

_____________________

INTRODUCTION

Allegheny Casualty Company (Allegheny Casualty) appeals from an order denying its motion to vacate summary judgment on a bail bond forfeiture and to recall and set aside the bail bond forfeiture and exonerate the bail bond. We find that this was an appealable order from which Allegheny Casualty timely filed a notice of appeal, and therefore deny the claim of plaintiff County of Los Angeles that the appeal should be dismissed. We further find that because the trial court found there was reason to believe that a sufficient excuse may have existed for defendants failure to appear, the trial court retained jurisdiction to later declare the bail bond forfeited upon defendants failure to appear and to enter summary judgment. We find no error in the order denying Allegheny Casualtys motion to vacate the summary judgment, and affirm that order.

FACTUAL AND PROCEDURAL HISTORY

On February 1, 2005, Bail Bond AW32836 for $30,000 from Allegheny Casualty through Anyway Bail Bonds was posted for the release of defendant Caston Lewis Black, charged with one count of violating Health and Safety Code section 11352, subdivision (a).

On April 20, 2005, Black did not appear at a hearing before Judge James R. Brandlin. At that hearing Blacks attorney stated that Black did not appear in court because, according to a family member, Black was being treated for a hernia in a location outside California. The trial court stated: [S]ince I dont have enough information as to whether or not hes actually hospitalizedbut Im prepared to find that there is good cause for his failure to appear todayfor jurisdictional purposes, I intend to issue a bench warrant and hold it. I will not . . . revoke bail in this matter because I think that there is good cause for the failure to appear. The trial court set the matter for a pretrial and trial setting hearing for May 10, 2005.

Black failed to appear at the May 10, 2005, hearing. The trial court stated: [T]he record should reflect that weve had a discussion in chambers. [Defense counsel] Mr. Jimmerson, youve indicated to the court that your client is still out of state; that the defendant is unable to appear today for reasons previously indicated. The trial court granted a defense request to set the matter for a May 24, 2005, pretrial hearing, and having found good cause, continued to hold the bench warrant.

Black failed to appear at the May 24, 2005, hearing. The trial court stated that defense counsel stated to the court that he had contacted Blacks family, who indicated that Black left on a bus three days earlier. Defense counsel hoped Black would arrive on May 24, 2005, and requested that the matter be trailed until the next day. The People requested immediate issuance of a bench warrant. The trial court stated: With regard to this matter, there is also a secondary issue, which is the fact that if the court revokes bail in this matter, forfeits, in essence, bail, and issues the warrant, that the bonding company has certain interests in their collateral. And I dont feel comfortable continuing to hold the warrant. Ive previously made a finding of good cause to hold it until todays date. I dont find that there is good cause for his failure to appear today. The trial court issued the bench warrant and ordered bail forfeited.

Summary judgment on forfeited bond AW32836 was entered on June 13, 2006.

On July 17, 2006, Allegheny Casualty moved to vacate summary judgment on the bail bond forfeiture and to recall and set aside the bail bond forfeiture and exonerate the bail bond. The motion contended that the trial court lacked jurisdiction to order enforcement of the judgment because there was insufficient reason and cause not to forfeit bail on April 20, 2005, and on May 10, 2005.

On August 8, 2006, plaintiff the County of Los Angeles filed opposition to the motion to vacate summary judgment on bail bond forfeiture, to recall and set aside bail bond forfeiture, and to exonerate the bail bond. The Countys opposition argued that the trial court lacked jurisdiction to review discretionary orders of another superior court judge, and that the defense attorneys explanation of defendant Blacks medical condition was sufficient to explain Blacks non-appearance at the hearings and justified the trial courts continuance of the matter without losing jurisdiction to later order bail forfeited. The trial courts September 6, 2006, order reflects the trial courts August 18, 2006, denial of the motion to vacate summary judgment.

On August 30, 2006, Allegheny Casualty filed a notice of appeal from the August 18, 2006, denial of its motion to vacate summary judgment on bail bond forfeiture, to recall and set aside bail bond forfeiture, and to exonerate bail bond, and from the denial of its request to calendar the case for a further extension on June 7, 2006.

ISSUES

This appeal presents two issues:

1. Whether, as the County of Los Angeles claims, the appeal should be dismissed for failure to file a timely notice of appeal; and

2. Whether the trial court lost jurisdiction by failing to declare a forfeiture when Black failed to appear without sufficient excuse, and if so whether the summary judgment was void for lack of jurisdiction.

1. The Notice of Appeal Was Timely Filed From an Appealable Order

The County of Los Angeles claims that the notice of appeal was untimely filed and therefore the appeal should be dismissed.

The notice of appeal purports to appeal from two orders: the order denying Allegheny Casualtys motion to vacate summary judgment on bail bond forfeiture, to recall and set aside bail bond forfeiture, and to exonerate bail bond, which the notice states was heard on August 18, 2006; and from the denial of Allegheny Casualtys request to calendar the case for a further extension on or about June 7, 2006.

The record does not contain the latter order, but it does contain a September 6, 2006, order reflecting the trial courts August 18, 2006, denial of the motion to vacate summary judgment.

An order denying a motion to vacate summary judgment on a bail bond forfeiture is an appealable order. (County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 12, fn. 1; People v. Wilshire Ins. Co. (1975) 53 Cal.App.3d 256, 259.) It is a proper vehicle for considering a jurisdictional attack on the summary judgment. (People v. Wilshire Ins. Co., supra, at p. 259.) We construe the August 30, 2006, notice of appeal as taken from the after-filed September 6, 2006, appealable order. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219, fn 6.)

We therefore deny the motion by the County of Los Angeles to dismiss the appeal.

2. Because It Found There Was Reason to Believe That a Sufficient Excuse May

Have Existed for Defendants Failure to Appear, the Trial Court Was Not

Required to Immediately Declare the Bail Bond Forfeited and Retained

Jurisdiction to Declare Forfeiture of Bail Bond and Enter Summary Judgment

Allegheny Casualty claims that by failing to declare a forfeiture when defendant Black failed to appear without sufficient excuse, the trial court lost jurisdiction over the bond, lost jurisdiction to subsequently order forfeiture, and lost jurisdiction to enter summary judgment.

Penal Code section 1305, subdivision (a)[1] sets forth the circumstances in which a trial court shall declare bail forfeited. Sections 1305 and 1306 (relating to enforcement of and relief from bail forfeitures) must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture. Where a statute, such as section 1305, requires a court to exercise its jurisdiction in a particular way, to follow a particular procedure, or to perform subject to certain limitations, an act beyond those limits exceeds the courts jurisdiction. (People v. Surety Ins Co. (1985) 165 Cal.App.3d 22, 26; People v. Topa Ins. Co. (1995) 32 Cal.App.4th 296, 300.) 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. American Surety Ins. Co. (1999) 75 Cal.App.4th 719.)

As a general rule, a defendants failure to appear without sufficient excuse requires entry of that fact in the minutes and immediate forfeiture of bail with prompt notice to the surety and its agent. (Section 1305, subd. (a); People v. Surety Ins. Co., supra, 165 Cal.App.3d at p. 26.)

There is an exception to this general rule. Under section 1305.1,[2] a court can continue a hearing and still retain its jurisdiction to declare a forfeiture at a later time as long as it has a reason to believe that a sufficient excuse exists for the nonappearance. (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 19.) When the defendant does not appear, however, the court must have some rational basis for believing sufficient excuse may exist. (People v. Surety Ins. Co., supra, 165 Cal.App.3d at pp. 26-27.)

An attorneys representations may provide the court with sufficient rational basis to give the court reason to believe that sufficient excuse may exist for defendants failure to appear. (People v. Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 924.) In most situations involving a determination of sufficient excuse for failure to appear pursuant to section 1305.1, the only reasons before the trial court are the evidence or representations furnished by defendants counsel. The cases demonstrate that the courts have cooperated with defense counsels requests and have liberally relied on their representations. (People v. National Automobile & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 306.) Numerous cases show that a trial court can base a finding of sufficient excuse on defense counsels representations to the court. (Ibid. [defense counsel represented to trial court that defendant would have been present unless he had an excuse because he had reported to the probation department]; People v. Ranger Ins. Co., supra, 31 Cal.App.4th at p. 20, fn 8 [defense counsels representation to trial court that defendants mother had terminal cancer provided sufficient basis for courts determination of sufficient excuse]; People v. Wilshire Ins. Co., supra, 53 Cal.App.3d 261 [defense counsels statement to the court that defendant was in the San Francisco area because of another action pending against him was sufficient to support implied finding of sufficient excuse]; People v. Amwest Surety Ins. Co., supra, 56 Cal.App.4th at pp. 918, 925 [defense counsel represented that the defendant might have to attend to an emergency and he might be available the next morning]; People v. Surety Ins. Co. (1976) 55 Cal.App.3d 197, 199, 201 [defense counsel advised the court his client told him he had sought medical treatment for severe internal bleeding in a nearby city].)

On April 20, 2005, Black did not appear at a hearing, but Blacks attorney made an offer of proof that Black did not appear in court because, according to a family member, he was being treated for a hernia in a location outside California. The trial court found this sufficient excuse for Blacks failure to appear. Based on defense counsels representations, the trial court again found it to be sufficient excuse for Blacks failure to appear at the May 10, 2005, hearing. Section 1305.1 does not require the court to make an immediate determination as to whether sufficient excuse exists. (People v. Wilshire Ins. Co., supra, 53 Cal.App.3d at p. 261.) Under section 1305.1, the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance to justify continuing a hearing without declaring a bail forfeiture. Instead, the statute requires the court only have reason to believe that sufficient excuse may exist for the failure to appear. (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953.) Under this standard, the trial court therefore had authority and discretion to continue the case for a reasonable period to enable defendant Black to appear without ordering forfeiture of bail. Therefore the trial court did not lose jurisdiction to later declare a forfeiture of bail when Black failed to appear or to enter summary judgment on the forfeited bond.

We conclude that because it found there was reason to believe that a sufficient excuse may have existed for defendants failure to appear, the trial court was not required to immediately declare the bail bond forfeited. Therefore it did not lose jurisdiction to declare a forfeiture of bail bond later and subsequently enter summary judgment. We therefore find no error in the order denying Allegheny Casualtys motion to vacate the summary judgment, and affirm that order.

DISPOSITION

The order denying the motion of Allegheny Casualty Company to vacate summary judgment on bail bond forfeiture, to recall and set aside bail bond forfeiture, and to exonerate bail bond is affirmed. Costs on appeal are awarded to respondent County of Los Angeles.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Unless otherwise specified, statutes in this opinion will refer to the Penal Code.

[2] Section 1305.1 states: If the defendant fails to appear for arraignment, trial, judgment, or upon any other occasion when his or her appearance is lawfully required, but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. [] If, after the court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendants arrest may be ordered issued.