People v. Bankers Ins. Co.

• Decision Date: 15 April 2021
• Docket Number: B301553
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE COMPANY, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE COMPANY, Defendant and Appellant.

B301553

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

April 15, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. Nos. OSJ2319, TA145405)

APPEAL from an order of the Superior Court of Los Angeles County, Songhai Miguda-Armstead, Judge. Affirmed.

Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel, Leonard L. Linares, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Bankers Insurance Company, through its agent Jail Out Bail Bonds, appeals from an order denying its motion to vacate the forfeiture of a bond Bankers posted to secure the release of Joel Ibarra Lara and the subsequent summary judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 15, 2018, two days after Lara's arrest, the People charged him with fleeing a pursuing peace officer while driving a vehicle in willful or wanton disregard of the safety of persons or property, in violation of Vehicle Code section 2800.2, subdivision (a). The trial court set bail at $75,000.

On February 16, 2018 Bankers posted a $75,000 bail bond to secure Lara's release from custody. Lara was released that day. When he did not appear in court as ordered, the trial court ordered the bail forfeited.

On February 21, 2018 the trial court mailed notice of the forfeiture to Bankers. The notice triggered a 185-day period (subsequently extended to March 20, 2019) for Lara to appear or Bankers to seek to set aside the forfeiture prior to the trial court entering summary judgment against Bankers. (See Penal Code, §§ 1305, subds. (b) & (c), 1306, subd. (a).)¹

On March 19, 2019 Bankers filed a motion to vacate the forfeiture and exonerate bail. Bankers argued the bail contract was void because the jailor did not properly identify Lara upon his arrest (an argument Bankers has abandoned on appeal) andbecause "bail was set unconstitutionally." On August 23, 2019, after several continuances, the trial court denied the motion.

On August 29, 2019 the clerk of the court executed an application for entry of judgment and a summary judgment against Bankers on the forfeited bond. The trial court signed the judgment the same day. Whether and when the clerk entered this judgment is one of the issues in this appeal. On September 3, 2019 the clerk mailed Bankers notice of entry of judgment on the forfeited bond and demand for payment. Bankers timely appealed from the order denying its motion to vacate the forfeiture and exonerate bail and the ensuing summary judgment.²

DISCUSSION

A. The Bond Was Not Exonerated for Failure To Enter a Timely Judgment

"A bail bond '"'is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond.'"' [Citation.] When a person for whom a bail bond has been posted and against whom a criminal complaint has been filed fails without sufficient excuse to appear as required, the court must declare the bail forfeited. [Citations.] [¶] Once forfeiture is declared, the surety that posted the bond has a period of 180 days (plus five days for mailing) after the clerk of the court mails a notice of forfeiture to move to vacate forfeiture and exonerate the bond. [Citations.] Upon a showing of good cause, the court may extend this appearance period by no more than 180 days from the date the trial court orders the extension. [Citations.] If the forfeiture has not been set aside by the end of the appearance period, inclusive of any extension, 'the court which has declared the forfeiture shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound.'" (People v. North River Ins. Co. (2020) 53 Cal.App.5th 559, 563 (North River II); see §§ 1305, subds. (a) & (c)(1), 1305.4, 1306, subd. (a).)

Under section 1305, subdivision (c), the trial court has 90 days after the expiration of the 180-day period (plus any extensions) to enter the summary judgment; otherwise, the bond is exonerated. (See People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1011 [where "a proper summary judgment was not entered within 90 days after the date upon which it firstcould be entered," "the bond must be ordered exonerated"]; County of Los Angeles v. American Bankers Ins. Co. (1996) 44 Cal.App.4th 792, 796 [if the court "'does not enter summary judgment "within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated"'"]; County of Orange v. Classified Ins. Corp. (1990) 218 Cal.App.3d 553, 556 ["if a judgment is not entered within 90 days after the 180-day grace period, the right to entry of summary judgment expires and the bail is exonerated"].) Where the surety has filed, within the 180-day (or properly extended) period, a motion to set aside a forfeiture, the 90-day period begins the day after the court denies the motion. (County of Sacramento v. Ins. Co. of the West (1983) 139 Cal.App.3d 561, 564; see People v. Wilcox (1960) 53 Cal.2d 651, 657 ["Section 1306 can not be construed to require a summary judgment when the court has pending before it an application for relief under section 1305 at the end of the 90-day period."]; People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 765 ["the 90-day period to enter summary judgment does not begin to run until a timely filed motion to vacate forfeiture, heard after the expiration of the exoneration period, has been decided"].)

Here, the trial court denied the motion to vacate the forfeiture on August 23, 2019. The parties agree the trial court had until November 22, 2019 to enter the summary judgment. Did the trial court enter summary judgment by that date? Bankers says no.

And here's (according to Bankers) why: On August 29, 2019 the clerk of the superior court executed under penalty of perjury a document titled "Clerks Application for Entry of Judgment and Summary Judgment Against Surety on ForfeitedBond," stating that the bond was ordered forfeited on February 16, 2018, stating that the time for filing a motion to set aside the forfeiture had elapsed without the court having set aside the forfeiture, and requesting that the court order the entry of judgment against Bankers on the bond. The trial judge signed the judgment the same day. The box in the upper right corner of the form stated that the clerk filed and entered the document, but it does not include a date. Bankers argues that "the entry occurs upon the clerk file-stamping the judgment," that "the entry date of a judgment in counties which do not use judgment books [is] the date file-stamped on the judgment," and that here "the purported judgment, while signed by the judge, was not file stamped, or signed by the clerk." Bankers contends that, because "formal entry of judgment was not timely made" under section 1306, subdivision (c), the bond "was exonerated by operation of law . . . ."

The judgment, however, was file-stamped. There is a stamp in the box in the upper right corner of the judgment that states it was "filed and entered" by "Sherri R. Carter, Executive Officer/Clerk, by Jessica G. Flores, Deputy." That's a file stamp.³ The file stamp is just missing a date. Can we tell from the record when the clerk entered the judgment, even though the date is missing from the file stamp on the judgment?

Yes, we can. The clerk stated under penalty of perjury on August 29, 2019 that "the foregoing" was true and correct. Because the "foregoing" includes the "filed and entered" stamp, which precedes the verification, the clerk must have filed and entered the judgment on or before August 29, 2019.⁴ Moreover, the clerk also filed a document titled "Clerks Notice of Entry of Judgment on Forfeited Bond and Demand for Payment," and this document states in the box in the upper right corner it was filed and entered on August 29, 2019. The document states that summary judgment was entered on the forfeited bond on August 29, 2019. Thus, the record shows that the judgment was filed and entered (because the file stamp on it says so) and that it was entered on August 29, 2019 (because the clerk declared so under penalty of perjury and confirmed so on a document filed and entered August 29, 2019). Therefore, because the court entered summary judgment long before the deadline of November 22, 2019, Bankers is not entitled to exoneration of the bond on the ground judgment was not timely entered under section 1306, subdivision (c).

B. The Trial Court's Alleged Violations of the Defendant's Constitutional Rights Did Not Invalidate the Bond

In In re Humphrey (2021) 11 Cal.5th 135 (Humphrey) the Supreme Court held that the "common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional" and that, "where a financial condition is nonetheless necessary, the court must consider the arrestee'sability to pay the stated amount of bail—and may not effectively detain the arrestee 'solely because' the arrestee 'lacked the resources' to post bail." (Id. at pp. 135-136.) The Supreme Court held: "An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or...