Filed 10/21/20 County of Placer v. The North River Ins. Co. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

—-

COUNTY OF PLACER,

Plaintiff and Respondent,

v.

THE NORTH RIVER INSURANCE COMPANY,

Defendant and Appellant.

C088901

(Super. Ct. No. 62-139756)

Appellant, The North River Insurance Company (North River) appeals the summary judgment entered on a $155,000 bail bond. North River contends the trial court prematurely entered summary judgment while a timely filed motion to extend was pending. Placer County (County) concedes the summary judgment was prematurely entered and is voidable. The parties agree the summary judgment should be reversed and the matter should be remanded. The parties disagree as to the trial court’s authority on remand. North River contends the trial court should conduct a hearing on the extension motion, and any additional time granted should be measured from the date of that order. The County contends the trial court cannot grant additional time because there is no time left on the appearance period; alternatively, the County contends the grounds the trial court can consider on the motion to extend are limited to facts occurring within the appearance period. We conclude the summary judgment was voidable at the time it was entered. We also conclude the trial court has no authority to grant additional time on the appearance period. The summary judgment is reversed and the matter is remanded.

BACKGROUND

On October 30, 2017, North River posted a bond guaranteeing the appearance of Nicholas Anthony Williams at further proceedings in his criminal case. Williams failed to appear as ordered at a December 18, 2017, hearing. The trial court ordered bail forfeited. The appearance period was set to expire on July 2, 2018.

North River timely filed a motion to extend the appearance period under Penal Code section 1305.4. The hearing was originally set for July 9, 2018. The County did not oppose the extension of any period “ending on or before January 5, 2019 (180 days from hearing date).” The hearing took place on July 16, 2018, instead of July 9, 2018. The trial court granted the motion, and stated it was extending the appearance period by “an additional period of 180 days from the date of this order to January 4, 2019.”

On January 3, 2019, North River timely filed a motion to extend the appearance period. The motion contended the extension order indicated it was for the full 180 days available, but miscalculated that 180 days as ending on January 4, 2019. Rather, 180 days from the hearing date of July 16, 2018, was January 14, 2019. Accordingly, North River sought an extension to include those additional days. The County did not file a response. Without ruling on the pending motion, the trial court entered summary judgment on January 4, 2019.

North River filed a motion to vacate forfeiture and exonerate bond on January 14, 2019. The County opposed the motion. However, in its opposition to the motion to vacate forfeiture and exonerate bond, the County indicated it did not oppose the trial court granting the additional eight days on the appearance period, to January 12, 2019. The County also requested that the trial court find that as a result of the timely filed request for extension of time by North River, the summary judgment had been entered prematurely, and requested that trial court set aside that summary judgment and enter a new summary judgment. North River filed its notice of appeal on the same date as the County’s opposition.

DISCUSSION

North River contends the trial court prematurely entered summary judgment while a motion to extend was pending. The County concedes the summary judgment was prematurely entered.

Summary Judgment is Voidable

Under section 1305, the court must declare the bail forfeited on the first date defendant fails to appear as ordered, provided a criminal complaint has been filed charging defendant. (§ 1305, subd. (a)(1)-(2); People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657 (American Contractors).) Once forfeiture is declared, the surety that posted the bond has a period of 185 days (180 days plus 5 days for mailing) after the clerk of the court mails a notice of forfeiture to move to vacate forfeiture and exonerate the bond. (§ 1305, subd. (c)(1); American Contractors, at p. 657.) The surety may seek an extension of the appearance period, which the trial court may grant upon a showing of good cause, for no more than 180 days from the date the trial court orders the extension. That is, the extension must be calculated “from the date of the trial court’s extension order, not from the end date of the initial appearance period.” (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 43 (Financial Casualty); § 1305.4.)

When the appearance period, including any extension, has elapsed without the forfeiture having been set aside, the trial court has 90 days to enter summary judgment against the surety for the amount stated in the bond. (§ 1306, subds. (a) & (c).) If summary judgment is not entered within the 90-day statutory period, the court’s power to enter summary judgment expires; and the bond is exonerated as a matter of law. (§ 1306, subd. (c); American Contractors, supra, 33 Cal.4th at p. 658.) The first day summary judgment can be entered is the day after the appearance period has elapsed. (§ 1306, subd. (c); American Contractors, at p. 660.) A summary judgment may also be premature “if it was entered while a timely motion for certain relief was pending under the bail forfeiture statutes.” (People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1001.) “ ‘[W]here a surety timely files a motion to vacate forfeiture prior to the expiration of the exoneration [appearance] period, and the motion is decided after expiration of that period . . . , the court’s power to enter summary judgment begins on the day following denial of the motion and expires 90 days later.’ ” (United States Fire Ins. Co., at p. 1002; accord, People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 770.) When a summary judgment is prematurely entered under the bail forfeiture statutes, the judgment is voidable (not void); and the surety may move to have it set aside in the trial court by a timely motion or challenge it by direct appeal. (American Contractors, at p. 657.)

The trial court entered summary judgment on January 4, 2019. That was the last day of the appearance period. In addition, on that day there was a pending motion for an extension of the appearance period. Accordingly, summary judgment was entered prematurely and the summary judgment is voidable.

Remedy

The parties agree the summary judgment should be reversed and the matter remanded to the trial court. They disagree on the trial court’s authority on remand. North River contends the trial court should conduct a hearing on the extension motion, and any additional time granted should be measured from the date of that order. The County contends the trial court cannot grant additional time because there is no time left on the appearance period.

The initial appearance period is 185 days. Upon a showing of good cause, the trial court may order the appearance period extended for no more than 180 days from the date of the order extending the appearance period. (§ 1305.4; Financial Casualty, supra, 2 Cal.5th at p. 43.) The surety’s motion seeking that additional time must be filed within the initial appearance period, although the trial court may rule on that motion up to 30 days after the period ends. (§ 1305, subd. (j); People v. The North River Ins. Co. (2017) 18 Cal.App.5th 863, 871.) “A court may extend the appearance period for fewer than 180 days, but if it does so, and if the surety seeks any additional extensions, ‘the total allowable extension is [still] limited to 180 days from the date of the first extension order, regardless of how many individual extensions the court orders.’ ([Financial Casualty,] at p. 46, fn. 2, italics added.) In other words, the 30-day ‘grace period’ that empowers a court to rule on the first extension motion for a limited time after the initial appearance period has expired does not apply to subsequent extension motions. (County of Los Angeles v. Allegheny Casualty Co. (2017) 13 Cal.App.5th 580, 586-587 . . . .) This interpretation balances competing concerns: It accords sureties ample time to investigate and seek relief from a forfeiture, but does not create the incentive for sureties to seek multiple, piecemeal extensions, each with its own 30-day grace period.” (North River Ins. Co., at pp. 871-872.) The trial court lacks authority to order further extensions beyond the 180-day period. (County of Los Angeles v. Allegheny Casualty Co., supra, 13 Cal.App.5th 580 at pp. 585-588.)

The appearance period was extended on July 16, 2018. The total allowable extension of that period was limited to 180 days after that order, or to January 14, 2019. The trial court no longer has authority to grant any further extensions to the appearance period.

DISPOSITION

The summary judgment is reversed. The matter is remanded to the trial court for further proceedings. Costs on appeal are awarded to appellant The North River Insurance Company.

/s/

HOCH, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

HULL, J.