People v. Am. Sur. Co.
| Decision Date | 15 January 2019 |
| Docket Number | E067831 |
| Citation | 31 Cal.App.5th 380,242 Cal.Rptr.3d 676 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY CO., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
John Mark Rorabaugh, Fresno, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, and John R. Tubbs II, Deputy County Counsel, for Plaintiff and Respondent.
In an earlier appeal, Indiana Lumbermens Mutual Insurance Company (Lumbermens) challenged an order denying its motion to vacate summary judgment on a bail bond forfeiture and to exonerate the bail bond. The day after Lumbermens filed its notice of appeal, American Surety Company (American), the appellant in this appeal, filed an undertaking to stay enforcement of the summary judgment during the first appeal. In an unpublished opinion, this court affirmed the order denying Lumbermens’ motion to vacate the summary judgment and to exonerate the bail bond. (See People v. Indiana Lumbermens Mutual Ins. Co. (June 30, 2016, E062800) 2016 WL 3653536 [nonpub. opn.].)1
Six days before this court issued the remittitur in the first appeal, American filed a motion in the trial court to exonerate the undertaking and to be released from liability on the undertaking. The undertaking was filed pursuant to Code of Civil Procedure section 917.1 (), which provides, inter alia, for undertakings to stay enforcement of money judgments. Because Lumbermens’ appeal was from a postjudgment order denying a motion to vacate the summary judgment, which is not a money judgment or an order directing the payment of money, American argued section 917.1 did not apply, and the undertaking was ineffective at all times. The trial court denied the motion, concluding American forfeited its challenge to the validity of the undertaking by waiting to file its motion until 57 days after this court issued its opinion in the first appeal and a mere six days before the issuance of the remittitur.
In this appeal, American again argues the undertaking it filed on behalf of Lumbermens was ineffective because Lumbermens appealed from a postjudgment order, and not from the summary judgment itself and, therefore, the stay provided for in section 917.1 was never triggered. In addition, American argues the undertaking never became effective because the trial court did not approve it as required by statute.
American is correct that the undertaking it filed in the first appeal was never effective. An appeal from a postjudgment order denying a motion to vacate summary judgment and to exonerate a bail bond is not an appeal from a money judgment and, therefore, section 917.1 does not provide for a stay of the underlying summary judgment during such an appeal. Because Lumbermens’ appeal did not automatically stay enforcement of the underlying summary judgment, and a statutory undertaking was ineffective, the means to stay enforcement of the summary judgment was to petition this court for a writ of supersedeas. Likewise, American is correct that, even if section 917.1 applied to Lumbermens’ appeal, the undertaking was not effective because the trial court did not approve of it pursuant to section 995.840, subdivision (a).
Nonetheless, we agree with respondent, the People, that American forfeited its challenge to the validity of the undertaking by waiting until six days before the issuance of the remittitur to file its motion to vacate the undertaking. And, even if we were to conclude that American did not forfeit its challenges to the undertaking, we agree with the People that American is estopped from challenging the undertaking on appeal. American, Lumbermens, and the People all acted on the assumption that enforcement of the summary judgment was stayed while Lumbermens pursued its appeal. And, the People did not dispute the effectiveness of the undertaking or seek to execute on the judgment while the appeal was pending. American and Lumbermens reaped the benefit of the undertaking, and American cannot be heard at this stage to complain that the undertaking was not, in fact, effective. Therefore, we affirm the order denying American's motion to exonerate the undertaking.
On March 28, 2013, Lumbermens executed a bail bond in the amount of $100,000, which was posted for the release of Tiffany Washington in People v. Washington (Super. Ct. San Bernardino County, 2013, No. FSB1300167). On June 6, 2013, Washington failed to appear for her preliminary hearing, as ordered by the court on June 4, 2013. The trial court ordered the bail bond forfeited, and a notice of forfeiture was mailed on June 7, 2013. (See People v. Indiana Lumbermens Mutual Ins. Co. , supra , E062800.)
On December 9, 2013, Lumbermens filed a motion for an extension of time to produce Washington. The court extended the forfeiture period for 180 days, through June 9, 2014. On May 23, 2014, Lumbermens filed a motion for an additional time extension, which was granted for an additional 180 days. Respondent, the People, as represented by the San Bernardino County Counsel, did not receive notice of the motion until after it was granted. On July 16, 2014, the People filed a motion to set aside the second extension, arguing that it was contrary to law, in that Penal Code section 1305.4 only provides for a single extension of up to 180 days from the date of the forfeiture or the date of mailing the notice of forfeiture. The People argued that the extension was void as of June 10, 2014. (See People v. Indiana Lumbermens Mutual Ins. Co. , supra , E062800.)
On September 11, 2014, the trial court granted the People's motion to set aside the extension order and entered summary judgment on the bail bond forfeiture. (See People v. Indiana Lumbermens Mutual Ins. Co. , supra , E062800.) Lumbermens did not appeal from the summary judgment.
On October 10, 2014, Lumbermens filed a motion to vacate the summary judgment and to exonerate the bail bond. The trial court denied the motion on January 7, 2015. (See People v. Indiana Lumbermens Mutual Ins. Co. , supra , E062800.)
On January 28, 2015, Lumbermens timely filed a notice of appeal from "the Order Denying the Motion to Vacate Summary Judgment entered on January 07, 2015."
The following day, American filed a $150,000 undertaking pursuant to section 917.1, to stay enforcement of the summary judgment pending Lumbermens’ appeal.
A person or corporation is automatically disqualified from acting as a surety in any superior court if summary judgment against the surety remains unsatisfied for more than 30 days after service of the notice of entry of judgment, unless the surety challenges the forfeiture or summary judgment and, if the challenge is by appeal, an undertaking that complies with the enforcement requirements of Code of Civil Procedure section 917.1 is filed with the court. ( Pen. Code, § 1308, subd. (a).) On March 16, 2015, Lumbermens and the People filed a stipulation seeking an order vacating Lumbermens’ disqualification.2 The stipulation provided that the disqualification "should be set aside while [Lumbermens’] appeal is pending and the appeal bond filed on January 29, 2015 is in effect." The same day, the trial court signed the order lifting Lumbermens’ disqualification.
This court issued its tentative decision in the first appeal on April 22, 2016. After hearing oral argument on June 27, 2016, we issued our unpublished opinion on June 30, 2016. Lumbermens had argued that the trial court lacked jurisdiction to enter summary judgment on the bail bond forfeiture because more than 90 days had elapsed since the expiration of the forfeiture period. But, more than 90 days had elapsed because the trial court incorrectly granted Lumbermens’ request to extend the exoneration period for more than 185 days. Relying on People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 104 Cal.Rptr.3d 87, we held, inter alia, that Lumbermens was estopped from arguing the trial court lacked jurisdiction based on the invalidity of the extension order because it was Lumbermens that expressly requested and obtained the invalid extension order. (See People v. Indiana Lumbermens Mutual Ins. Co. , supra , E062800.)
On August 26, 2016—six days before this court issued its remittitur—American filed its motion to exonerate the undertaking as invalid. In opposition, the People argued the undertaking was valid because Penal Code section 1306, subdivision (e), expressly provides that a summary judgment on a bail bond forfeiture shall not be enforced if the judgment is appealed and an undertaking is filed that complies with Code of Civil Procedure section 917.1. In addition, the People argued American waived its challenge to the undertaking by waiting so long to file its motion, and/or that American was estopped from challenging the undertaking because it knowingly acquiesced in the benefit conferred upon Lumbermens by the undertaking. In reply, American argued the trial court lacked fundamental jurisdiction to enter the undertaking and, therefore, the waiver, forfeiture, and estoppel doctrines did not preclude American's challenge to the undertaking.
After hearing argument from the parties, the trial court denied American's motion. The court did not dispute the soundness of American's argument that the undertaking was ineffective because section 917.1 does not apply to postjudgment appeals from an order denying a motion to vacate summary judgment on a bail bond forfeiture. Nonetheless, in its written order, the court noted American "first raised the purported invalidity of the undertaking it issued approximately [57] days after the opinion of the Court of Appeal showed it would have to pay on the undertaking, and a mere [six] days before the remittitur started the 30-day countdown to paying on the undertaking if Lumbermens did not satisfy the judgment."3 Relying on County of Los Angeles v....
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