People v. Fairmont Specialty Group, B209635 (Cal. App. 1/15/2010)

• Decision Date: 15 January 2010
• Docket Number: B209635.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FAIRMONT SPECIALTY GROUP, Defendant and Appellant.
• Court: California Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. FAIRMONT SPECIALTY GROUP, Defendant and Appellant.

B209635.

Court of Appeals of California, Second Appellate District, Division Five.

January 15, 2010.

Appeal from an order of the Superior Court of Los Angeles County, No. YA068186, Thomas R. Sokolov, Judge. Affirmed.

Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.

Office of the Los Angeles County Counsel, Ralph L. Rosato, Assistant County Counsel and Joanne K. Nielson, Senior Deputy County Counsel for Plaintiff and Respondent.

Not to be Published in the Official Reports

TURNER, P.J.

I. INTRODUCTION

Fairmont Specialty Group, the surety, appeals from an order denying a Penal Code section 1305.4 motion to extend the 180-day period to vacate a bail bond forfeiture and exonerate the bond. (All further statutory references are to the Penal Code unless otherwise noted.) We affirm the order.

II. BACKGROUND

On May 18, 2007, the surety posted a $45,000 bail bond for the release of defendant, Antonio Ezell, in the case of People v. Ezell, Los Angeles Superior Court case No. YA068186. Mr. Ezell was charged with five burglary counts and one grand theft count. (§§ 459, 487, subd. (a).) Mr. Ezell failed to appear on August 1, 2007, but was represented by an alternate deputy public defender. Defense counsel advised the trial court Mr. Ezell was attending a funeral. According to the alternate deputy public defender, Mr. Ezell's father had died. A co-defendant also was not present. The co-defendant's lawyer requested "a bench warrant hold." The trial court stated it could issue a warrant and hold it, but only for a few days. The trial court then issued a bail forfeiture order and a bench warrant, but held both until August 6, 2007. The trial court also set the matter for an August 15, 2007 preliminary hearing.

On August 6, 2007, the defendant failed to appear again. The trial court found the failure to appear was without sufficient excuse, ordered the bail forfeited, and issued a bench warrant. On August 8, 2007, the superior court clerk mailed a notice of forfeiture to the surety and its bond agent, Code 3 Bail Bonds.

On February 4, 2008, the surety and its agent, Code 3 Bail Bonds, filed a motion to extend the forfeiture date. The motion was marked "received" on February 4, 2008. We treat the motion as filed on that date. (See United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918; Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1361.) A criminal fugitive investigator, Kevin Appleton, declared in very general terms: diligent efforts had been made over a six-month period to locate defendant; federal, state, and local government resources had been utilized; and a complete background check and data search had been conducted. Mr. Appleton concluded: "Declarant believes the newest information uncovered will prove to be the place where defendant . . . is now actively visiting. That his apprehension is very real and possible given a 180 day extension of time on this case, to allow investigators to fully develop and complete all leads and information uncovered in this case. We are very optimistic that defendant . . . will be in our custody before the time granted by the court. However, being cautious we ask the court to consider the time requested in case this defendant proves to be more elusive than previously anticipated."

On February 8, 2008, the superior court clerk mailed a notice of bail bond forfeiture. The notice stated: "This is to advise you that 180 days has elapsed since the bond hereinafter set forth was ordered forfeited by the court, and of the mailing of the notice of forfeiture. The records show that this forfeiture was not set aside within the 180 day period provided in section 1305 of the Penal Code. . . . [¶] Demand is hereby made that you tender your check or draft . . . ."

On February 13, 2008, the surety and its agent filed Mr. Appleton's supplemental declaration detailing the steps taken to locate defendant. Mr. Appleton declared that between August 22, 2007, and January 29, 2008, investigators had: identified and conducted surveillance at two locations Mr. Ezell frequented; spoken with multiple individuals and business owners and had distributed fugitive flyers at and near those locations; established contact with several individuals willing to notify them when Mr. Ezell appeared; and just missed encountering defendant on at least one occasion. Mr. Appleton was confident the defendant would be apprehended.

On February 20, 2008, the trial court denied the motion to extend the forfeiture date as not timely filed. Summary judgment was entered on April 10, 2008. The court clerk's notice of entry of the summary judgment was served by mail on April 11, 2008.

On May 19, 2008, the surety "by and through its authorized representatives, Kevin Appleton of Code 3 Bail Bonds" filed a section 1305 motion to set aside the summary judgment, vacate the forfeiture and reinstate and exonerate the bond. The surety argued it was error to find the motion to extend was not timely filed. The record on appeal does not include a ruling on the May 19 motion.

III. DISCUSSION

A. The Appeal Is Timely

The County of Los Angeles (the county) argues the appeal is untimely and must be dismissed because it was filed 63 days after the superior court clerk mailed notice of entry of the summary judgment. (Cal. Rules of Court, rule 8.104(a) [notice of appeal must be filed on or before 60 days after the court clerk mails notice of entry].) (All further references to a rule are to the California Rules of Court.) The county further asserts the time to appeal was not tolled by the motion to set aside the summary judgment because: the motion was filed by the bail agent; the motion was not filed by the surety; the bail agent did not have standing to file the set aside motion. We disagree. First, the motion to set aside the summary judgment was filed by the surety "by and through" its agent. Second, a bail agent has standing to challenge a bond forfeiture by seeking to vacate a summary judgment against the surety. (People v. Silva (1981) 114 Cal.App.3d 538, 547-548; see People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66, 70-71 [motion to vacate summary judgment jointly filed by surety and bail agent].) Therefore, the time to appeal was extended under rule 8.108(c) by the service and filing of the motion to vacate the summary judgment. The county does not argue the notice of appeal was untimely under rule 8.108(c).

B. The Forfeiture Law

Our Supreme Court has explained the basics of bail forfeiture and tolling: "While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature. (People v. Wilcox (1960) 53 Cal.2d 651, 654.) `The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court.' (Id. at pp. 656-657; see Stack v. Boyle (1951) 342 U.S. 1, 5 [. . . ].) `In matters of this kind there should be no element of revenue to the state nor punishment of the surety.' ([People v.] Wilcox, [supra, 53 Cal.2d] at p. 657.) Nevertheless, the `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.' (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22.) Thus, when there is a breach of this contract, the bond should be enforced. (See People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675.) [¶] When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (§ 1305, subd. (a).) The 185 days after the date the clerk of the court mails a notice of forfeiture (180 days plus five days for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is entitled to move to have the forfeiture vacated and the bond exonerated on certain grounds, such as an appearance in court by the accused. (§ 1305, subd. (c)(1).) The trial court may also toll the appearance period under certain circumstances, or extend the period by no more than 180 days from the date the trial court orders the extension, provided that the surety files its motion before the original 185-day appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds. (e), (i), 1305.4.)" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657-658, fn. omitted; accord, e.g., People v. Accredited Surety & Cas. Co. (2004) 132 Cal.App.4th 1134, 1138-1139; People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1041-1042.)

Pursuant to section 1305.4, "[T]he surety insurer, the bail agent, the surety, or the depositor may file a motion based upon good cause, for an order extending the 180-day period provided in [section 1305]. The motion shall include a declaration or affidavit that states the reasons showing good cause to extend that period. The court, upon a hearing and a showing of good cause, may order the period extended to a time not exceeding 180 days from its order." Division Seven of the Court of Appeal for this appellate district discussed the section 1305.4 "good cause" requirement in County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1027-1028: "`[Good cause] means an explanation of what efforts [the surety] made to locate [the defendant] during the initial 180 days, and why such efforts were unsuccessful.' (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 681.) `Efforts by a surety during the first 180 days might not always translate into good cause for an extension if it is unclear that a defendant will likely be captured given more time. While the Ranger court...