County of Los Angeles v. Wilshire Ins. Co.

• Decision Date: 26 December 1979
• Docket Number: No. 14087,14087
• Citation: 103 Cal.App.3d Supp. 1,163 Cal.Rptr. 123
• Court: California Superior Court
• Parties: 103 Cal.App.3d Supp. 1 COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. WILSHIRE INSURANCE COMPANY et al., Defendants and Appellants. Civ. A. Appellate Department, Superior Court, Los Angeles County, California

Page 123

163 Cal.Rptr. 123

103 Cal.App.3d Supp. 1

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. WILSHIRE INSURANCE COMPANY et al., Defendants and Appellants.

Civ. A. No. 14087.

Appellate Department, Superior Court, Los Angeles County, California.

Dec. 26, 1979.

Howard Meyerson, North Hollywood, for defendants and appellants.

John H. Larson, County Counsel, Donald K. Byrne, Chief Deputy County Counsel, and H. Anthony Nicklin, Deputy County Counsel, Los Angeles, for plaintiff and respondent.

DOWDS, Judge.

Wilshire Insurance Company (Wilshire) and Mark Herman (Herman) appeal from denial of their motions to set aside a summary judgment entered against them following forfeiture of a bail bond. They argue that the order appealed from was entered at a time the court lacked jurisdiction because at that time a previous appeal from an order denying a motion to vacate the forfeiture was pending. Penal Code section 1306 requires the entry of a summary judgment when the time specified in Penal Code section 1305 (180 days after entry of bond forfeiture in the court minutes, or, if notice is required, after mailing of notice of forfeiture) has elapsed without the forfeiture having been set aside. If the court had not entered summary judgment within the 90-day period provided by Penal Code section 1306 the bond would have been exonerated and the bail lost to the people of the State of California. While Code of Civil Procedure section 916 subdivision (a) in general stays proceedings in the trial court upon matters embraced in or affected by the judgment or order appealed from, Penal Code sections 1300 to 1309 inclusive specifically provide for the proceedings in respect of forfeiture of a bail bond and the entry of a summary judgment against the bondsman. They do not provide that appeal from a forfeiture stays the power of the court to enter summary judgment. This specific statutory scheme prevails over the general provisions of Code of Civil Procedure section 916 subdivision (a). The statutory procedure provided in respect of bail bonds was followed here and appellants' contention that the order appealed from was entered while the trial court lacked jurisdiction fails.

The order denying Herman's motion to vacate and set aside the summary judgment must, however, be reversed. Penal Code section 1306, pursuant to which the summary judgment was entered, provides for such judgments against "each bondsman named in the bond in the amount for which the bondsman has bound himself." Herman is not a bondsman at all. He is clearly designated in the bond itself as the agent of the bondsman and he made no undertaking at all. His name appears in the caption of the summary judgment only, not in the body. Thus it is questionable if any judgment is outstanding against him. He is entitled to have the doubt removed, however, and the respondent does not dispute this, making no reply in its brief to Herman's argument as to his individual liability.

The order appealed from is affirmed as to Wilshire and reversed as to Herman with directions to set aside the summary judgment entered against him.

Appellant Herman is to recover his costs on appeal against respondent County of Los Angeles. Respondent to recover its costs on appeal against appellant Wilshire.

SAETA, J., concurred.

COLE, Presiding Judge, concurring.

I concur in the result reached by the majority. That result is not only correct, it is compelled as to appellant Wilshire Insurance Company (Wilshire) by decision of the Court of Appeal and by our oaths of office. We would be exceeding our jurisdiction were we to hold in a different manner. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) The Court of Appeal has decided the identical question in an appeal arising out of the identical and underlying criminal matter. It is most curious, however, that out of undue deference to that legal teratism, rule 977 of the California Rules of Court, you could never tell from the majority opinion that the question was not an open one.

The undisclosed facts are these: The bail bond at issue here was in the amount of $3,500. It was issued, as part of a total bail of $10,000, to secure the appearance of one Oscar Onsurez, a defendant in criminal action No. 186326 in the Los Angeles Superior Court. The balance of the bail, $6,500, was posted by Surety Insurance Company (Surety). On February 27, 1975, the $10,000 bail was forfeited. Both Wilshire, appellant here, and Surety moved to vacate the forfeiture, and upon denial of their motion, appealed on January 24, 1977. That appeal was not decided until December 19, 1977, when the Court of Appeal, in a published opinion, affirmed the order denying the motion to vacate the forfeiture. (People v. Surety Insurance Company (1977) 76 Cal.App.3d 57, 143 Cal.Rptr. 47.)

In the meantime, and while that appeal was pending, summary judgments were entered against the bonding companies. At the time of the summary judgments, each entered in 1977, Penal Code section 1306 provided that jurisdiction to enter the judgment depended upon whether the amount of the bond was within the civil jurisdiction of the court to render judgment in an action arising upon a contract of similar nature and amount. ¹ Accordingly, since at that time the municipal court had jurisdiction of amounts up to $5,000, the summary judgment against appellant Wilshire was entered in the municipal court and this appeal to this court followed. But the amount of Surety's bond, $6,500, fell within the jurisdiction of the superior court. Surety, represented by the same counsel as represents Wilshire on this appeal, appealed to the Court of Appeal. The ground of appeal, in each case, was that the trial courts had no jurisdiction to enter the summary judgments while the prior appeal (which resulted in the published opinion in People v. Surety Insurance Company, supra ) was pending. The County of Los Angeles was respondent in both the appeal to the Court of Appeal and the appeal to this court.

This court initially decided this matter on June 7, 1978. Appellants petitioned for rehearing or for certification by us to the Court of Appeal, pointing out the possibility that conflicting results might occur if the Court of Appeal reached a different conclusion than we had reached. We granted rehearing, denied certification, and entered an order stating that "(f)urther decision and consideration of this matter is deferred pending final decision in County of Los Angeles...