County of Los Angeles v. Surety Ins. Co.

• Court: California Court of Appeals
• Writing for the Court: FRED WOODS; LILLIE, P.J., and JOHNSON
• Citation: County of Los Angeles v. Surety Ins. Co., 255 Cal.Rptr. 322, 207 Cal.App.3d 1126 (Cal. App. 1989)
• Decision Date: 08 February 1989
• Docket Number: No. B018132,B018132
• Parties: COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. SURETY INSURANCE COMPANY, Defendant and Appellant.

Page 322

255 Cal.Rptr. 322

207 Cal.App.3d 1126

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. SURETY INSURANCE COMPANY, Defendant and Appellant.

No. B018132.

Court of Appeal, Second District, Division 7, California.

Feb. 8, 1989.

Nunez & Bernstein and E. Alan Nunez, for defendant and appellant.

No appearance for plaintiff and respondent.

FRED WOODS, Associate Justice.

This appeal is taken from an order of the Los Angeles County Superior Court, the Honorable Norman L. Epstein, judge presiding, dated October 17, 1985 denying the motion of appellant, Surety Insurance Company (hereafter "SIC") for an order exonerating bond and declaring judgment unenforceable. Affirmed.

Respondent has filed no brief on the appeal. Although in our discretion we might automatically order reversal, treating appellant's point as well taken (Berry v. Ryan (1950) 97 Cal.App.2d 492, 493, 217 P.2d 1015), we follow the better practice of examining the record on the basis of appellant's brief and reversing only if prejudicial error is found. (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55, 131 Cal.Rptr. 335; In re Marriage of Schultz (1980) 105 Cal.App.3d 846, 853, 164 Cal.Rptr. 653.) Nevertheless we note the lack of assistance from respondent in doing so.

PRELIMINARY STATEMENT

Since the facts are not in dispute, the court finds it sufficient to set forth this preliminary statement of the proceedings below.

On July 2, 1981, the bail posted by SIC was declared forfeited, the defendant having failed to appear in his criminal proceeding. Notice of forfeiture was mailed to SIC on July 9, 1981. ¹ After various proceedings, summary judgment was entered against SIC on the bail bond on July 7, 1982. On October 14, 1982 Allied Fidelity Insurance Company (hereafter "Allied") posted an appeal bond at SIC's request ² pursuant to Code of Civil Procedure section 917.1 ³ obligating itself directly to the County of Los Angeles for the sum of $15,000.00. On October 26, 1982, SIC filed its notice of appeal from an order denying its motion to vacate the summary judgment. The judgment against SIC was affirmed by the appellate court and the remittitur issued on April 18, 1984.

Thereafter, Allied filed a motion to exonerate its appeal bond on August 23, 1984 which was denied on September 24, 1984. Allied then paid the principal on its obligation to the County of Los Angeles on or about December 21, 1984.

SIC then filed a motion in the superior court seeking to exonerate Allied's payment on its appeal bond on ground that Penal Code section 1306, subdivision (e) prevents the enforcement of a summary judgment against a bondsman unless accomplished within two years of entry of the judgment.

On October 17, 1984 the Los Angeles County Superior Court, the Honorable Norman L. Epstein presiding, denied the motion of SIC to exonerate the bond. This appeal is taken from the order denying SIC's motion to exonerate Allied's appeal bond and declare judgment unenforceable.

Appellant filed a timely notice of appeal.

CONTENTIONS ON APPEAL

SIC's central contention on this appeal is that the trial court erred in refusing to exonerate Allied's appeal bond since the County of Los Angeles failed to comply with Penal Code section 1306, subdivision (e) ⁴ by enforcing its summary judgment within two years after the entry of the judgment.

Other side issues have been raised which will be dealt with hereafter in this opinion.

DISCUSSION

Central to SIC's appeal urging reversal is that summary judgment entered against a bondsman pursuant to Penal Code section 1306 expires two years after the entry of judgment unless enforcement of the judgment has been obtained during the two year period.

The central question to be resolved on this appeal is whether or not the respondent having forced SIC into obtaining an appeal bond with Allied satisfies the "enforcement" provision under Penal Code section 1306. SIC maintains that Penal Code section 1306 applies to the "established" ⁵ procedures for enforcement of judgments, without explanation as to what constitutes "established" procedures for enforcement. SIC cites no authority for this proposition. Our independent search has not uncovered any authority for the proposition urged by SIC on this appeal. The issue appears to be one of first impression.

Here the facts are undisputed, therefore the issue on appeal is one of law and a consideration of whether the trial court erred in its interpretation of the law. Allied, as surety for SIC on the appeal bond, posted the appeal bond during the two years immediately following entry of summary judgment against SIC in the trial court, albeit the bond was not paid until after the two years. Since the judgment was affirmed on appeal, Code of Civil Procedure section 917.1 (fn. 2, supra ) specifically demands payment of the judgment with costs and interest once the appeal was affirmed or dismissed. In our view, the judgment was enforced by the posting of the appeal bond within the applicable two year period and subsequently satisfied by payment of the face amount of the appeal bond, within the meaning of Penal Code section 1306.

We see no merit in appellant's contention.

SIDE ISSUES

The contention that Allied's posting of an appeal bond on SIC's appeal from an order denying SIC's motion to vacate summary judgment was unlawful under Code of Civil Procedure section 917.1 is not timely raised.

SIC maintains that Allied improperly posted bond on SIC's appeal from an order of court denying SIC's motion to vacate the summary judgment against it on its bail bond. SIC contends that Code of Civil Procedure section 917.1 (fn. 2, supra ) does not provide for the posting of an appeal bond in such an instance since SIC's appeal was not from a money judgment or an order directing payment of monies within the meaning of Code of Civil Procedure section 917.1. SIC is correct in its contention and is also correct in relying on Reay v. Butler (1897) 118 Cal. 113, 50 P. 375 and on Weldon v. Rogers (1908) 154 Cal. 632, 98 P. 1070.

In Reay, the court states:

"The bond in question is in the form and contains the stipulations prescribed by section 942 of the Code of Civil Procedure [the predecessor to section 917.1], to be given on the part of an appellant from 'a judgment or order directing the payment of money,' as the condition of staying execution of such judgment or order pending the appeal. No other section of the code regulating the practice on appeal provides for such a bond. Now, it seems plain to us that the order appealed from by the executrix was in no sense an 'order directing the payment of money' within the purview of said section 942; it was in effect the denial of a motion to modify a judgment [citation]; any execution issued must have been founded on the judgment to which such motion was directed--not upon the order denying the motion. [Citations.] Therefore the bond of Quackenbush and Ames, so far as its effect is disclosed by the present record, could not operate to suspend execution; it was given without statutory authority or permission, and the plaintiff was not entitled to judgment against the sureties on motion--that being a summary remedy created by the statute (said section 942) and applicable only to undertakings allowed by it. [Citations.]" (Reay v. Butler, supra, 118 Cal. 113, 114, 50 P. 375.)

In Weldon, the court states as follows:

"The judgment against the two sureties is also without support. Section 942 of the Code of Civil Procedure provides for an undertaking of the form here used and for an ex parte judgment thereon against the sureties, only upon appeals 'from a judgment or order directing the payment of money.' The order appealed from on the previous appeal did not direct the payment of any money. It was purely negative in effect, merely denying the motion to vacate the former order and quash the execution. This former order, even if it can be considered as a part of the latter order so as to make the appeal include both, cannot properly be considered as an order directing the payment of money. So far as it purported to direct the payment of money it was without authority. The superior court, when applied to, ex parte, for leave to have execution issued, as provided in section 685 of the Code of Civil Procedure, had no power to direct the payment of money, but only to give leave that the former judgment be 'carried into execution.' The amount to be specified in such execution was to be determined, in the present case, solely by the terms of the judgment upon which it was to be founded, and such amount could not be enlarged or diminished by anything said by the court in an order made under section 685, given ex parte, and without the consent of the judgment defendant or notice to him. In so far as it purported to direct that the execution should be for a named amount it was useless and void. For these reasons the former appeal cannot be considered as an appeal from an order directing the payment of money, and section 942 gave no authority for an undertaking thereon to stay the proceedings on the judgment or on the execution. It cannot be considered as a statutory undertaking upon which a judgment could be given as prescribed in that section. The judgment rendered in pursuance thereof was without authority and void. [Citations.]" (Weldon v. Rogers, supra, 154 Cal. 632, 635-636, 98 P. 1070.)

The only problem with SIC's analysis and contention is that we are presented with no record which would indicate that either SIC or Allied preserved this issue prior to the time that the remittitur on SIC's appeal was issued on April 18, 1984. ⁶ Having failed to preserve the issue on the aforementioned appeal and having failed to otherwise test the validity of the posting of the appeal bond by appropriate motion prior to Allied's obligation to make payment of the principal amount of the premium to County in the sum of $15,000.00, SIC is in no position to...