People v. The North River Ins. Co. CA2/3 ( 2020 )

Filed 10/29/20 P. v. The North River Ins. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, B297109
Plaintiff and Respondent, Los Angeles County
Super. Ct. Nos. SJ4102,
v. PA079550-02
THE NORTH RIVER
INSURANCE COMPANY et al.,
Defendants and Appellants.
THE PEOPLE, B297116
Plaintiff and Respondent, Los Angeles County
Super. Ct. Nos. SJ4101,
v. PA079550-01
THE NORTH RIVER
INSURANCE COMPANY et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Kerry Bensinger and Victoria Wilson, Judges. Affirmed.
Jefferson T. Stamp for Defendants and Appellants.
Mary C. Wickham, County Counsel, Adrian G. Gragas,
Assistant County Counsel, and Michael J. Gordon, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
A surety and its bail agent appeal from the trial court’s
orders denying their motions to set aside summary judgments
on two separate forfeited bail bonds entered under section 1306,
subdivision (a) of the Penal Code1 (1306(a)). Appellants contend
the summary judgments entered against them were void in
violation of their due process rights and section 1306(a) because
the judge who declared the forfeiture of the bonds was not the
same judge who entered the summary judgments.
In People v. The North River Ins. Co. (2020) 53 Cal. App. 5th
559 (North River), Division Seven of this court rejected the same
arguments that appellants advance here. We agree with that
decision’s reasoning and therefore affirm the orders.
FACTS AND PROCEDURAL BACKGROUND
The North River Insurance Company (North River),
through its bail agent Bad Boys Bail Bonds (bail agent)
(collectively, appellants) posted bail bonds on January 27, 2014,
for the release of criminal defendants Carlos Montoya and Juan
Quintero (defendants) from custody pending their appearance
in court. When the defendants failed to appear for their
1 Undesignated statutory references are to the Penal Code.
2
arraignments on February 21, 2014, the Honorable Michael
O’Gara ordered the bonds forfeited.
Appellants then had a185-day “appearance period” from
service of the notices of forfeiture (180 days plus five days for
service by mail) to move to have the forfeitures vacated and the
bonds exonerated. (People v. Financial Casualty & Surety, Inc.
(2016) 2 Cal. 5th 35, 42.) Appellants successfully moved to extend
the appearance periods for another 180 days, under Penal Code
section 1305.4, until February 26, 2015. The court granted a
second extension until May 7, 2015.
Appellants then filed motions to vacate the forfeitures and
exonerate the bonds on the last day of the extended appearance
period. The court heard and denied appellants’ motions on
July 15, 2015.2 On July 24, 2015, the court (the Honorable Kerry
Bensinger)3 separately entered summary judgment in favor of
respondent on the forfeited bail bonds for Quintero and Montoya.
In each case, appellants filed a motion to set aside the
summary judgment, vacate forfeiture, and exonerate the bond,
arguing as a matter of due process and statutory interpretation,
summary judgment must be entered by the same judge who
declared the forfeiture. The Honorable Victoria Wilson denied
appellants’ motions to set aside the summary judgments on
February 15, 2019.
2 We affirmed those orders in a consolidated appeal on
July 16, 2018. (B269234.)
3 At the time, Department 54, the Honorable Kerry
Bensinger presiding, was assigned to enter all section 1306
summary judgments on forfeited bail bonds.
3
Appellants separately appealed from those orders. On
July 9, 2020, we consolidated the two appeals for purposes of
argument and decision.
DISCUSSION
1. Applicable law
The Penal Code, specifically, section 1305 et seq., governs
the forfeiture of bail. (People v. United States Fire Ins. Co. (2015)
242 Cal. App. 4th 991, 998.) “ ‘These provisions must be carefully
followed by the trial court, or its acts will be considered without
or in excess of its jurisdiction.’ ” (Id. at pp. 998-999.) “Because of
the harsh results of a forfeiture and the jurisdictional nature of
statutory compliance, appellate courts carefully review the record
to ensure strict statutory compliance.” (Id. at p. 999.)
Section 1305, subdivision (a) requires the trial court to
declare a forfeiture of bail if a defendant fails to appear at the
specified court proceeding without a satisfactory excuse. The
clerk of the court must mail notice of the forfeiture to the surety
and bail agent within 30 days. (§ 1305, subd. (b)(1).) As we have
said, the surety then has a 185-day “appearance period” from
the mailing of the notice, that can be extended another 180 days
for good cause, to bring the defendant to court and have the
forfeiture vacated and the bond exonerated.4 (§§ 1305, subds.
(b)-(c), 1305.4.) “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
4 As occurred here, the surety also may move—before the
expiration of the appearance period—to have the forfeiture
vacated and bail exonerated on grounds specified under section
1305. (See § 1305, subd. (j).)
4
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, 53 Cal.App.5th
at p. 567.)
“A summary judgment in a bail forfeiture is a consent
judgment entered without a hearing and the proceedings are
not adversarial.” (People v. American Contractors Indemnity Co.
(2015) 238 Cal. App. 4th 1041, 1047.) By the terms of each of its
bail bonds, North River agreed that “[i]f the forfeiture of th[e]
bond be ordered by the Court, judgment may be summarily made
and entered forthwith against [North River] for the amount of its
undertaking herein as provided by Sections 1305 and 1306 of the
Penal Code.” The only issue therefore is whether the summary
judgments complied with sections 1305 and 1306. (American
Contractors, at p. 1047.)
2. Standard of review
“An order denying a motion to vacate summary judgment
on a bail bond forfeiture is an appealable order and is a proper
vehicle for considering a jurisdictional attack on the summary
judgment.” (People v. International Fidelity Ins. Co. (2012) 204
Cal. App. 4th 588, 592.) We independently review such an order
when, as is the case here, “the facts are undisputed and only
legal issues are involved.” (Ibid.) We also review de novo
questions of statutory construction. (Ibid.) Because the law
disfavors forfeiture, the Penal Code sections governing bail
forfeiture, including sections 1305 and 1306, “ ‘must be strictly
construed in favor of the surety to avoid the harsh results of
a forfeiture.’ ” (County of Los Angeles v. Surety Ins. Co. (1984)
5
162 Cal. App. 3d 58, 62.) Nevertheless, “[t]he policy disfavoring
forfeiture cannot overcome the plainly intended meaning of
the statute.” (People v. Indiana Lumbermens Mutual Ins. Co.
(2010) 49 Cal. 4th 301, 308.)
3. The summary judgment is not void
Appellants contend the summary judgments are void
because (1) North River’s constitutional right to due process was
violated when the judge who entered the summary judgments
was not the judge who heard the evidence of and entered the
bail forfeiture; and (2) section 1306(a) requires the same judicial
officer who declared the bail bond forfeiture to enter summary
judgment on the forfeited bail bond.
a. North River’s due process rights were not violated
Section 1306(a) states than when a bond is forfeited and
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 the surety in the amount of
the bond. (Italics added.) Appellants contend that due process
requires “the court” to mean that the judge who heard the
evidence of the bail forfeiture must also be the one to order
summary judgment. Relying on several cases, they argue only
the judge who heard the evidence of the alleged unexcused
failure to appear has knowledge of the entire record necessary
to competently review the evidence to render summary judgment.
(See Phillips v. Phillips (1953) 41 Cal. 2d 869, 874 [judge who has
heard the evidence may change his or her mind or findings of fact
at any time before entry of judgment]; Heenan v. Sobati (2002)
96 Cal. App. 4th 995, 1004-1006 [vacating judgment entered by
a judicial officer who had not heard evidence where trial judge
had issued a tentative statement of decision and thus was the
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only judge who had the “power to issue a judgment, and to
correct or modify it on posttrial review”]; European Beverage,
Inc. v. Superior Court (1996) 43 Cal. App. 4th 1211, 1214-1215
[recognizing the importance of having “ ‘the judge who hears
the evidence’ ” decide the case]; see also North River, supra,
53 Cal.App.5th at pp. 566-567.)
In North River, the same appellants also “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, 53 Cal.App.5th at pp. 566-567.) Our colleagues in
Division Seven disagreed. Reviewing the statutory requirements
for bail forfeiture, that we have discussed, the court noted
appellants’ argument “misapprehends the nature of summary
judgment in the bail context,” which, as we have said, is
“a consent judgment entered without a hearing pursuant
to the terms of the bail bond.” (Id. at p. 567.)
Before North River could be held liable for the forfeited
bonds, it had both notice of the forfeitures and ample opportunity
to object and be heard during the lengthy appearance period.
Under section 1305, when defendants failed to appear for their
arraignments, the trial court was required to declare the bail
bonds forfeited upon their unexcused nonappearance. (§ 1305,
subd. (a)(1).) It did, and on February 25, 2014, appellants
were notified by mail of defendants’ failure to appear and the
forfeitures of the bail bonds. (§ 1305, subd. (b)(1).) Appellants
had the full appearance period and more—here, 436 days—
to gather evidence to petition the court to vacate the forfeitures.
Indeed, appellants took full advantage of that right. On July 15,
2015, the court—this time, the Honorable David Walgren—
denied appellants’ motions to vacate the forfeiture and exonerate
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the bonds. At this point, with the appearance period having
expired without the forfeitures having been vacated, Judge
Bensinger, like the judge in North River, was required by statute
to enter summary judgment in accordance with the bonds’ terms.
(North River, supra, 53 Cal.App.5th at pp. 567-568.)
Given the nature of summary judgment in the bail
forfeiture context—a consent judgment entered without notice
nor requiring resolution of disputed facts—due process does not
require the same judicial officer who declared the bail forfeiture
to enter summary judgment on the forfeited bond. (North River,
supra, 53 Cal.App.5th at pp. 567-568.) And, when a court follows
the statutory procedures, as it did here, no due process violation
occurs. (Ibid.; County of Los Angeles v. Amwest Surety Ins. Co.
(1983) 147 Cal. App. 3d 961, 967 [Penal Code provides sufficient
“notice to the surety and the opportunity to be heard” to satisfy
due process requirements]; see People v. Surety Ins. Co. (1978)
82 Cal. App. 3d 229, 236-237, 240 [bail forfeiture procedure does
not deny due process: “surety is given notice of the ‘proposed
action’ (by declaration of forfeiture)” and has the “ ‘right to
respond’ ” through its opportunity to move to vacate the
forfeiture, “result[ing] in a full evidentiary hearing before
a judgment is rendered on the bond”].)
As in North River, appellants’ reliance here on the holding
in People v. Frontier Pacific Ins. Co. (2000) 83 Cal. App. 4th 1289,
1295 (Frontier) that a summary judgment on a bail forfeiture
must be entered by a judge, not by the clerk of the court, does
not alter our conclusion. (North River, supra, 53 Cal.App.5th
at p. 568.) There, the court of appeal declared void a summary
judgment entered under section 1306 where the clerk, not
the judge, signed the order. Because section 1306 explicitly
8
authorized the court to enter summary judgment, the reviewing
court held the rendition of the judgment could not be delegated to
the clerk. (Frontier, at pp. 1294-1295.) In contrast, here—as in
North River—a judge signed the summary judgment as required
by section 1306. (North River, at p. 568.) Nor is there any
evidence Judge Bensinger did not confirm the requirements of
sections 1305 and 1306 had been satisfied—namely, that the
bail bonds had been declared forfeited, notice of the forfeitures
had been sent, and the appearance periods had expired without
the forfeitures having been set aside—before entering summary
judgment. (People v. Allegheny Casualty Co. (2007) 41 Cal. 4th
704, 715 [when record is silent appellate court generally
presumes “the trial court performed its duty and acted in the
lawful exercise of its jurisdiction”]; see also Evid. Code, § 664
[“It is presumed that official duty has been regularly
performed.”]; Evid. Code, § 666 [court or judge subject to
“collateral attack” “is presumed to have acted in the lawful
exercise of its jurisdiction”].)
Moreover, appellants’ contention that Frontier recognizes
section 1306(a)’s reference to “the court” is synonymous with “the
judge” is without merit. The case says nothing about summary
judgment needing to be ordered by the same judge who declared
the forfeiture. If anything, the Court of Appeal’s statement that
the judgment there was “void for lack of execution by a judge”
(Frontier, supra, 83 Cal.App.4th at p. 1294, italics added),
suggests that any judge can enter summary judgment. Indeed,
none of the cases appellants cite requires the judge entering
summary judgment in a bail forfeiture proceeding to be the
same judge who declared the forfeiture.
9
b. Section 1306 does not require the same judicial officer
who declared the bond forfeiture to enter summary
judgment
“Our primary task in construing a statute is to determine
the Legislature’s intent. [Citation.] Where possible, ‘we follow
the Legislature’s intent, as exhibited by the plain meaning of the
actual words of the law. . . .’ [Citation.]” (Jarrow Formulas, Inc.
v. LaMarche (2003) 31 Cal. 4th 728, 733; Boys & Girls Club of
Petaluma v. Walsh (2008) 169 Cal. App. 4th 1049, 1057 [“[t]he
first step in statutory construction ‘ “ ‘is to scrutinize the actual
words of the statute, giving them a plain and commonsense
meaning’ ” ’ ”].) “ ‘ “ ‘If the language is clear and unambiguous
there is no need for construction, nor is it necessary to resort
to [extrinsic] indicia of the intent of the Legislature . . . .’ ”
[Citation.]’ [Citations.]” (City of Montebello v. Vasquez (2016)
1 Cal. 5th 409, 419.)
Section 1306(a) explicitly refers to “the court which has
declared the forfeiture,” not to a particular judicial officer.
Appellants nevertheless contend section 1306(a) must be
interpreted to require the same judicial officer who declared the
forfeiture to enter the summary judgment. They argue the terms
“court” and “judge” are equivalent, and the Legislature’s use in
section 1306(a) of the definite article “the,” rather than “a,” in
the phrase “the court” demonstrates its intent to require the
same judicial officer who declared the forfeiture under section
1305 to be the one to enter summary judgment. Appellants also
assert that if any judge could enter summary judgment, the
Legislature’s reference to the act of declaring forfeiture would
be surplusage.
10
North River rejected these same arguments, 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, 53
Cal.App.5th at p. 565.)5
Because the plain language of section 1306(a) does not
require the summary judgment on the forfeited bond to be
entered by the same judge of the court who declared the
forfeiture, appellants’ statutory interpretation argument
also is without merit.
5 Moreover, when the Legislature has intended the same
judge to perform an act, it has used clear language stating that
intent. (See, e.g., § 1170.18(l) [“If the court that originally
sentenced the petitioner is not available, the presiding judge
shall designate another judge.”]; Code Civ. Proc., § 635 [“when
the judge who heard or tried the case is unavailable”]; Code Civ.
Proc., § 1008, subd. (a) [motion for reconsideration made to “the
same judge or court that made the order”] (all italics added).)
Section 1306(a) does not include similar language.
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DISPOSITION
The February 15, 2019 orders denying the motions to set
aside summary judgment, vacate forfeiture, and exonerate the
bond are affirmed. Respondent shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
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