County of LA v. Safety National Casualty





Filed 12/16/10 County of LA v. Safety National Casualty CA2/4





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. SAFETY NATIONAL CASUALTY CORPORATION, Defendant and Appellant.

B219791 (Los Angeles County Super. Ct. No. SJ 3312)

APPEAL from a judgment of the Superior Court of Los Angeles County, Edmund W. Clarke, Jr., Judge. Dismissed.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, Brian T. Chu, Principal Deputy County Counsel, for Plaintiff and Respondent.

Appellant Safety National Casualty Corporation appeals from the judgment entered against it as the surety on a forfeited bond and the trial court’s order denying appellant’s motion to set aside the summary judgment. Because appellant failed to timely file its notice of appeal from the judgment and the postjudgment order is not appealable, the appeal must be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

On January 31, 2008, appellant posted a bond for the release of one Marco Scataglini from custody. Scataglini was ordered to appear for a February 26, 2008 court date. Although the caption on the bond listed the court as “The Superior Court of the Hollywood Judicial District,” on the “Bail Receipt &/or Notice to Appear,” there was a “Notice to Arrestee” portion of the receipt. It stated: “You are directed to appear as indicated . . . .” The address provided was the “L.A. Criminal Courthouse Dept. 30 [located at] 210 W. Temple Street [in] Los Angeles[,] CA. 90012.” The arrestee was advised, “Failure to appear may result in forfeiture of bail and issuance of a warrant for your arrest.”
On February 26, 2008, Scataglini’s matter was called in Department 30 of the Los Angeles Criminal Courthouse on Temple Street. Scataglini failed to appear and bail was forfeited. A bench warrant was issued and held until February 29 and the matter was reset in the Hollywood courthouse. Although it is not clear from the record, the parties agree that subsequent to Scataglini’s release, a misdemeanor was filed against him and a February 29 arraignment date was set in the Hollywood courthouse. The bench officer in Department 30 was apparently aware of the new date, and this may explain why the bench warrant was held. On February 29, the matter was called in Department 79 of the Hollywood courthouse. Scataglini did not appear, the warrant was released, and bail remained forfeited.
On September 24, 2008, on appellant’s motion, the court extended the period during which the bond could be exonerated to March 10, 2009. On March 9, 2009, appellant filed a second request to extend the exoneration period and was given an April 8, 2009 hearing date. On March 10, the date on which the court’s extension was due to expire, appellant did not appear. The entry on the superior court’s Trial Court Information System states, “Notice of motion and motion to toll time received and [filed]; request for an additional extension of time is denied pursuant to Penal Code section 1305.4. [¶] Summary judgment to issue.” Summary judgment was entered in favor of respondent County of Los Angeles and against appellant on March 11, 2009.
On April 16, 2009, appellant filed a motion to set aside the summary judgment, discharge the forfeiture, and exonerate the bail. On September 25, 2009, the motion was heard and denied. On October 20, 2009, appellant filed a notice of appeal from the September 25 order and the grant of summary judgment.

DISCUSSION

We address first whether the appeal from the judgment is timely.[1] As we have noted, the judgment was entered on March 11, 2009. California Rules of Court, rule 8.104 sets forth the general deadline to file a notice of appeal. In this case, however, appellant is entitled to the benefit of rule 8.108(c), which provides for an extension of time during which the appeal must be filed when a party files a timely motion to vacate the judgment. That rule states the time to appeal is extended until the earliest of: “(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first notice of intention to move—or motion—is filed; or [¶] (3) 180 days after entry of judgment.” Although the earliest date under the rule is July 15, 2009, which was 90 days after appellant filed its April 16 motion to set aside the summary judgment, rule 8.108 operates only to extend, not shorten, the deadline for the filing of an appeal. The 30-day date under rule 8.108(c)(1) was October 28, 2009 (respondent served notice of the order denying appellant’s motion to set aside the summary judgment on September 28) and under rule 8.108(c)(3) the 180th day after entry of judgment was September 7, 2009. The earlier date of the two is September 7. As September 7 was a court holiday (Labor Day), appellant had until September 8 to file its notice of appeal. Its October 20 filing was thus untimely.
Appellant argues the order denying its motion to set aside the summary judgment is independently appealable. It is incorrect. “‘The denial of a motion to vacate a prior judgment or order is an order after final judgment that affects the judgment and therefore can be appealable under certain special circumstances. [Citation.] However, these circumstances are rare; most of the orders are nonappealable for compelling reasons: [¶] (1) If the prior judgment or order was appealable, and the grounds on which vacation is sought existed before entry of judgment, the correctness of the judgment should be reviewed on an appeal from the judgment itself. To permit an appeal from the order refusing to vacate would give the aggrieved party two appeals from the same decision or, if the party failed to take a timely appeal from the judgment, an unwarranted extension of time starting from the subsequent order.’” (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1576, quoting 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 197, pp. 273-274, italics omitted.)
There is no question that the court’s March 11, 2009 judgment in favor of the county was appealable. Appellant’s motion to set aside the summary judgment presented the identical argument that could have been raised on appeal from the judgment—the superior court lacked jurisdiction to issue a bench warrant and forfeit bail. Allowing an appeal from the order denying appellant’s motion to set aside the summary judgment would give it two bites at the appellate apple with respect to the same judgment. Moreover, as appellant did not timely appeal from the judgment, we would be granting it “‘an unwarranted extension of time starting from the subsequent order.’” (Payne v. Rader, supra, 167 Cal.App.4th at p. 1576.) That, we decline to do.

DISPOSITION

The appeal from the judgment and the order denying the motion to set aside the summary judgment is dismissed. Respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



SUZUKAWA, J.

We concur:



WILLHITE, Acting P.J.



MANELLA, J.

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