Filed 10/28/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A136872
v.
ACCREDITED SURETY AND (San Mateo County
CASUALTY COMPANY, INC. Super. Ct. No. CIV513412)
Defendant and Appellant.
Appellant Accredited Surety and Casualty Company, Inc. (Surety) appeals from
the denial of its motion to set aside summary judgment, discharge forfeiture and
exonerate bail. Surety posted a bail bond for the release from custody of one Ji Liang
Cheng who failed to appear for sentencing, causing bail to be forfeited. When Cheng was
not produced within the extended statutory time period within which Surety could move
for relief from the forfeiture, the court entered summary judgment against Surety. Surety
then moved to set aside the summary judgment, discharge the forfeiture and exonerate the
bail, which the court denied. Surety‘s appeal from that order challenges the sufficiency of
the notice of forfeiture served upon it, and the timeliness of the summary judgment. We
conclude that the notice to Surety, a professional surety, although easily capable of
improvement, satisfied due process requirements, and that although the summary
judgment was entered beyond the statutory deadline, Surety is estopped to complain
because it acquiesced in the scheduling error leading to the late entry of the summary
judgment.
1
Background
On January 13, 2010, through a bail bond agent Surety posted a $100,000 bail
bond for the release of Cheng, who was facing drug and drug-related charges. Following
his conviction upon a plea of nolo contendere, Cheng failed to appear for sentencing on
January 11, 2011, as had been ordered, and his bail was declared forfeited. On
January 18, the court clerk mailed to Surety and to its agent a ―Notice of Order Forfeiting
Bail‖ which read in full: ―You are hereby notified that Bail Bond No. A100-00449105, in
the sum of $100,000 was forfeited on 1/11/11. Defendant having failed to appear for
Probation Report & Sentencing.‖
On July 22, 2011, the 185th day after the notice of forfeiture was mailed, Surety
filed a motion pursuant to Penal Code1 section 1305.4 to extend the time period within
which it could move for relief from the forfeiture pursuant to section 1305. The People
filed a non-opposition to this motion which stated in part: ―The People believe that the
moving party in this case has complied with Penal Code § 1305.4 by showing good cause
for granting the extension. It is respectfully suggested that the statutory deadline should
be extended in this matter for 180 days from the date of the hearing on this motion, i.e.,
until January 31, 2012.‖ On August 5 the court entered an order purporting to extend the
deadline to January 31, 2012.
On April 26, 2012, Cheng not having appeared and no motion for relief from the
forfeiture having been sought or granted, summary judgment was entered on the
forfeiture and notice of its entry was mailed to Surety the following day. On June 22,
2012, Surety filed a motion to set aside the summary judgment, discharge the forfeiture
and exonerate bail on the ground that the summary judgment was filed beyond the period
authorized by section 1306, subdivision (c) and therefore was void. The trial court denied
this motion and Surety thereafter timely filed its notice of appeal.
1
All statutory references are to the Penal Code unless otherwise noted.
2
Discussion
I. The Notice of Forfeiture Was Not Constitutionally Inadequate
Although Surety did not make this contention in the trial court, it argues on appeal
that the court lost jurisdiction to enter the summary judgment because the notice of
forfeiture was inadequate to satisfy due process standards.2
Section 1305, subdivision (b) provides in part: ―If the amount of the bond . . .
exceeds four hundred dollars ($400), the clerk of the court shall, within 30 days of the
forfeiture, mail notice of the forfeiture to the surety . . . .‖ Proper notice in compliance
with this provision is a necessary predicate to collection on the bond. The subdivision
goes on to provide that the surety shall be released of all obligations under the bond if
―[t]he clerk fails to mail the notice of forfeiture in accordance with this section within 30
days after the entry of the forfeiture‖ or mails the notice to the wrong address. (§ 1305,
subd. (b)(1)-(3).)
Surety does not dispute that the notice mailed to it on January 18, 2011 complied
with the literal terms of the statute. However, it contends that the notice was ineffective
because it failed to recite the statutory provisions under which it was issued and under
which relief from forfeiture may be obtained, including the time limitation for seeking
such relief. Based on principles established by the United States Supreme Court (e.g.,
Memphis Light, Gas & Water Division v. Craft (1978) 436 U.S. 1 (Craft)), and two
California Court of Appeal bail bond forfeiture decisions (People v. Swink (1984) 150
Cal.App.3d 1076 (Swink); Minor v. Municipal Court (1990) 219 Cal.App.3d 1541
(Minor)), Surety argues that due process requires that such notice be provided before
forfeiture can be imposed, and that the failure to include that information in the notice
renders the notice it received void and ineffectual.
2
Respondent does not challenge Surety‘s ability to raise the issue for the first time on
appeal, undoubtedly because the issue is purely one of law and goes to the court‘s
jurisdiction. (See 9 Witkin, California Procedure, Appeal § 406, pp.464-465 (5th ed.
2008).)
3
The authority on which Surety relies unquestionably does, as a general matter,
stand for these broad propositions. Swink and Minor clearly and unequivocally hold that a
notice of bail forfeiture sent to lay individuals that does not contain this information is
insufficient to maintain the forfeiture. The question in this case is whether the same
analysis applies when bond is posted by a corporate surety that presumably knows, or at
least should know, of the statutory provisions that govern the issuance of bail bonds,
forfeiture of bail, and relief from forfeiture.
In Craft, the Supreme Court held that a municipal utility‘s failure to include in a
notice that a customer‘s failure to make an overdue payment would result in termination
of service, advice ―of the availability of a procedure for protesting a proposed termination
of utility service as unjustified‖ did not ―comport with constitutional requirements‖ of
due process. (436 U.S. at pp.14-15.) The court reached this conclusion after considering
―three distinct factors‖ specified in Mathews v. Eldridge (1976) 424 U.S. 319, 334-335:
― ‗First, the private interest that will be affected by the official action; second, the risk of
an erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally, the
Government‘s interest, including the function involved and fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.‘ ‖ (Id. at
pp. 17-18.) Utilizing this balancing approach, the court concluded that ―[b]ecause of the
failure to provide notice reasonably calculated to apprise [the customer] of the
availability of an administrative procedure to consider their complaint of erroneous
billing, and the failure to afford them an opportunity to present their complaint to a
designated employee empowered to review disputed bills and rectify error, [the utility]
deprived [the customer] of an interest in property without due process of law.‖ (Id. at
p. 21.)
In Swink, supra, an individual deposited cash in lieu of a bail bond to guarantee
the appearance of a defendant who failed to appear, the cash bail was forfeited and a
notice was sent to Swink, the individual who had deposited the cash, stating, ―bail will
remain forfeited until the defendant appears.‖ (150 Cal.App.3d at p. 1078.) Relying on a
4
long line of Supreme Court decisions, including Mullane v. Central Hanover Tr. Co.
(1950) 339 U.S. 306, Mathews v. Eldridge, supra, 424 U.S. 319, and Craft, supra, 436
U.S. 1, the court held that the notice was ―constitutionally deficient because it fail[ed] to
tell Swink of the statutory procedure to set aside the declaration of forfeiture, including
the time period within which to do so.‖ The court pointed out that the notice failed to tell
Swink ―of the pending action (i.e., the perfection of the forfeiture . . .), the underlying
statutory scheme governing forfeitures, or that there were jurisdictional time limits.
Moreover, it implies the absence of time limitations and the automatic discharge of the
forfeiture upon defendant‘s appearance.‖ (Id. at p. 1081, fns. omitted.) Applying the
balancing test prescribed in Mathews v. Eldridge, supra, 424 U.S. 319, the court
reasoned: ―Swink‘s interest in recouping their deposit is significant; the risk of erroneous
deprivation of that interest through procedures used is substantial for those who are not
professional sureties or bail bondsmen; the probable value of additional or substitute
procedural safeguards is substantial considering the consequences of failing to discharge
the forfeiture; and the government‘s interest in not providing a more complete and
informative notice is minimal, as the cost of modifying the letter notice is de minimis.‖
(Id. at p. 1082.) The court therefore reversed an order denying Swink‘s motion for
discharge of the forfeiture.
In Minor, supra, the situation was similar. The notice to the individual who had
posted bail, Minor, stated, ―Pursuant to Section 1305 of the Penal Code, you are hereby
notified of an order of the Court this date forfeiting bail . . . ‖ (219 Cal.App.3d at
p. 1550.) The court recognized that the notice was distinguishable from the notice in
Swink because it ―did not affirmatively imply an absence of time limits or that forfeiture
would automatically be discharged should the defendant appear, ‖ but held that the notice
nonetheless was constitutionally deficient. ―Like the notice in Swink, it failed to tell of
‗the pending action (i.e., the perfection of the forfeiture . . . ), the underlying statutory
scheme governing forfeitures, or that there were jurisdictional time limits.‘. . . Reference
to section 1305 alone, without any hint that relief from forfeiture was available, let alone
5
the time limits for seeking it, was deficient under any reasonable reading of Swink.‖
(Ibid.)
These cases, on which Surety relies, all involved the sufficiency of notice to lay
persons, who presumably were unaware of the statutory procedures for obtaining relief.
These same cases recognize that the ultimate question in determining whether a given
notice satisfies due process is whether, under the particular circumstances, the notice is
reasonably calculated to inform the recipient of the process by which the recipient may
challenge the governmental action in question. (See, e.g., Mullane v. Central Hanover
Bank & Trust, supra, 339 U.S. at pp. 314-315 [―notice must be of such nature as
reasonably to convey the required information . . . [¶] . . . [¶] The reasonableness and
hence the constitutional validity of any chosen method may be defended on the ground
that it is in itself reasonably certain to inform those affected‖].) As the Supreme Court
stated in Mathews v. Eldridge, our high court ―decisions underscore the truism that
‗ (d)ue process,‘ unlike some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances.‖ (Citation.) ‗Due process is flexible
and calls for such procedural protections as the particular situation demands.‘ ‖ (424 U.S.
at p. 334.) This principle was reiterated in Craft, where the court observed that the notice
that it held there to be constitutionally deficient ―may well have been adequate under
different circumstances.‖ (436 U.S. at p. 15, fn. 15.) There, the court emphasized, the
notice was given ―to thousands of customers of various levels of education, experience,
and resources. Lay consumers of electric service, the uninterrupted continuity of which is
essential to health and safety, should be informed clearly of the availability of an
opportunity to present their complaint‖ before service is terminated. (Ibid.)
Similarly, in Swink, although the court spoke of the necessity of giving notice to
―sureties and depositors,‖ it did so ―within the context of [that] case‖ (150 Cal.App.3d at
p. 1082), which concerned a notice sent to a lay person. In weighing the considerations
specified in Mathews v. Eldridge, the court considered that the risk of erroneous
deprivation of the bail depositor‘s interest in recouping the deposit ―is substantial for
those who are not professional sureties or bondsmen.” (Ibid, italics added.) In Minor,
6
while holding that reference to section 1305 in the forfeiture notice was not sufficient to
advise the lay recipient of the statutory scheme governing forfeitures, the court
recognized that ―[m]ere reference to the code section may suffice for professional sureties
who routinely work with the section and are presumably familiar with it.‖ (219
Cal.App.3d at p. 1550.) While holding that actual knowledge of the statutory procedures
does not defeat a due process claim if the notice is insufficient to provide reasonable
notice to the class of persons of which the recipient is a member, the court pointed out
that ―the issue of whether notice is reasonably calculated to inform interested parties is
factual only in that a court considers overall characteristics of the class of those to be
notified.‖ (Id. at p. 1551.) The court distinguished two bail-forfeiture cases in which
forfeiture was upheld despite imperfections in the statutory notice on the ground that
―each involved professional sureties, which, apart from the challenged notice, had
unchallenged notice of the defendant‘s nonappearance.‖ (Id. at pp. 1551-1552.)3
As these cases imply, the class of those to whom due process requires that notice
of a bail forfeiture contain explicit notification of the procedure by which to obtain relief
from the forfeiture does not include professional sureties, such as the surety in the present
case. Unlike the lay persons involved in Swink and Minor, Surety ―routinely work[s] with
the section [1305] and [is] presumably familiar with it.‖ (219 Cal.App.3d at p. 1550.)
Indeed, the bond which Surety issued in this case explicitly provides, ―If the forfeiture of
this bond be ordered by the court, judgment may be summarily made and entered
forthwith against the said ACCREDITED SURETY AND CASUALTY COMPANY,
INC., a Florida Corporation, for the amount of its undertaking herein as provided by
Sections 1305and 1306 of the Penal Code.” (Italics added.)
Hence, although we can discern no good reason for the court failing to include
such information in all forfeiture notices, regardless of the particular recipient, we
3
County of Los Angeles v. American Bankers Ins. Co. (1988) 202 Cal.App.3d 1291,
1295-1296; People v. Surety Ins. Co. (1977) 76 Cal.App.3d 57. See also, People v.
Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1385; People v. American Bankers Ins. Co.
(1991) 227 Cal.App.3d 1289, 1294-1296.
7
conclude that failure to do so in the notice sent to Surety, a licensed insurer and
professional surety, does not violate constitutional strictures, and that the notice therefore
is not void as Surety contends.
II. The motion to set aside the summary judgment was properly denied
Surety next contends, as it did in the trial court, that the summary judgment is void
because entered beyond the time period mandated by section 1306. The trial court denied
the motion to set the judgment aside on two grounds, that the motion was itself untimely,
and that the summary judgment was not untimely entered. Although we disagree with the
trial court‘s reasoning in both respects, we believe it reached the correct conclusion.
a. Timeliness of the motion to set aside the summary judgment.
The summary judgment against Surety was signed on April 18, 2012, entered on
April 26, 2012, and notice of its entry served by mail on Surety on April 27, 2012.
Surety‘s motion to set aside summary judgment, discharge forfeiture and exonerate bail
was served and filed on June 22, 2012. The People argued and the trial court agreed that
the motion was untimely because filed beyond the 30 day period specified in section
1308. We fail to see, however, how section 1308 has any application. Section 1308,
subdivision (a) provides that the court may not accept any person or corporation as surety
on bail ―if any summary judgment against that person or corporation entered pursuant to
Section 1306 remains unpaid after the expiration of 30 days after service of the notice of
the entry of the summary judgment,‖ subject to the proviso that a motion attacking the
validity of the forfeiture or summary judgment is not pending. This section does not
purport to establish a time within which a motion challenging entry of the summary
judgment must be filed; it merely curtails the right to act as a surety on bail in subsequent
cases if the person or corporation has not within 30 days paid or filed a pending challenge
to a summary judgment under section 1306 against it in a prior case.
Unless the summary judgment was void, in which case it could be attacked at any
time (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660), the
motion to set it aside may have been untimely under other applicable provisions. The
authority for Surety‘s motion to set aside the summary judgment would appear to be
8
either Code of Civil Procedure section 663, a motion to vacate the judgment,4 or Code of
Civil Procedure section 659, a motion for a new trial. In either case, the motion would
have been required to be made within 15 days of the date on which the clerk mailed
notice of the entry of the summary judgment. (Code Civ. Proc., §§ 659, subd. (a)(2),
663a, subd. (a)(2).) Surety argues that the provisions of the Code of Civil Procedure have
no application to proceedings affecting the exoneration or forfeiture of bail which, it
argues, are governed exclusively by the provisions of the Penal Code. We question this
assertion because ―[t]he forfeiture of bail is an independent, collateral matter, civil in
nature.‖ (People v. Wilcox (1960) 53 Cal.2d 651, 654.) Nonetheless, motions to set aside
summary judgments entered pursuant to section 1306 have been permitted, without
discussion of the timeliness of the motion, well beyond the 15-day periods specified in
the Code of Civil Procedure. (E.g. County of Sacramento v. Insurance Co. of the West
(1983) 139 Cal.App.3d 561, 563-564 [motion to vacate summary judgment filed more
than two years after entry of summary judgment]; People v. Ranger Ins. Co. (1992) 9
Cal.App.4th 1302, 1304 [motion to vacate summary judgment filed 63 days after entry of
summary judgment]. We question whether there is or should be no limit on the time
within which such a motion must be filed, and legislation to provide an express limitation
may well be appropriate and of considerable assistance to our trial courts. In all events, it
is not necessary to reach any conclusions about the timeliness of Surety‘s motion in this
case because we conclude that, even if timely, the motion was properly denied.
4
Code of Civil Procedure section 663 provides that ―A judgment or decree, when based
upon a decision by the court, or the special verdict of a jury, may, upon motion of the
party aggrieved, be set aside and vacated by the same court, and another and different
judgment entered, for either of the following causes, materially affecting the substantial
rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or
erroneous legal basis for the decision, not consistent with or not supported by the facts
. . . .‖ (Code Civ. Proc. § 663, subd. (1).)
9
b. Although entered in excess of the court‘s jurisdiction, the summary judgment is
voidable, not void, and Surety is estopped to set it aside.
Section 1306 provides in part: ―(a) When any bond is forfeited and the period of
time specified in Section 1305 has elapsed without the forfeiture having been set aside,
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. The
judgment shall be the amount of the bond plus costs, and notwithstanding any other law,
no penalty assessments shall be levied or added to the judgment. [¶] . . . [¶] (c) If, because
of the failure of any court to promptly perform the duties enjoined upon it pursuant to this
section, summary judgment is not entered within 90 days after the date upon which it
may first be entered, the right to do so expires and the bail is exonerated.‖
Section 1305, subdivision (c)(1) provides that if the defendant for whom the bond
was posted appears within 180 days of the date of mailing a notice of bond forfeiture,
extended by five days for service by mail (§ 1305, subd. (b)), the so-called ―appearance
period,‖ the forfeiture shall be vacated and the bond exonerated.5 Section 1305.4
authorizes the court, upon motion and a showing of good cause, to ―order the period
extended to a time not exceeding 180 days from its order.‖ (Italics added.) As observed
in previous appellate decisions, there is an ambiguity in the words ―its order.‖ The People
argue, and the trial court held, that these words refer to the order granting the extension.
Here, the court entered an order on August 5, 2011 granting Surety‘s motion under
section 1305.4, purporting to extend the deadline for seeking relief from forfeiture to
January 31, 2012, within 180 days of August 5, 2011. Since the summary judgment was
entered on April 26, 2012, within 90 days of January 31, the court held that it was
properly entered ―within 90 days after the date upon which it may first be entered‖ as
required by section 1306, subdivision (c).
All of the cases that have addressed the ambiguity in section 1305.4 have
concluded that this is not a correct reading of the statute. The issue was first considered in
5
Section 1305 contains numerous qualifications and tolling provisions that have no
application to the present case.
10
People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193. The court
recognized that ―[t]he language of section 1305.4 is somewhat ambiguous. . . . Does ‗its
order‘ mean the original order extending the period so that the total of all extensions
permitted under section 1305.4 cannot exceed 180 days, or does ‗its order‘ mean the
order issued in response to each request for extension which could result in limitless
extensions of time as long as ‗good cause‘ is shown and no single extension exceeds 180
days?‖ (74 Cal.App.4th at p. 1198.) After considering the legislative history of the
measure, the court concluded: ―Guided by the language of the statute and the explanation
of its provisions provided by the legislative counsel, we are of the opinion that the
Legislature intended section 1305.4 to allow an extension of no more than 180 days past
the 180-day [now 185-day] period set forth in section 1305. The alternative interpretation
proposed by appellant would permit the bail agent to obtain a new extension every 180
days, and drag the forfeiture period on indefinitely. This would violate the policy and
spirit of the statutory framework within which section 1305.4 is found which strongly
favors limiting the amount of time a surety has to challenge forfeiture.‖ (Id. at p. 1199.)
The same conclusion was expressed in People v. Granite State Insurance Co. (2003) 114
Cal.App.4th 758, 768 and in People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 1377,
1380, 1382 [―the statute allows an extension of the appearance period ‗of no more than
180 days‘ past the 185-day period provided by section 1305‖].
The People contend that a footnote in a 2004 Supreme Court decision, holding that
a summary judgment entered under section 1306 prematurely was voidable and not void
(People v. American Contractors Indemnity Co., supra, 33 Cal.4th 653, 658 fn. 3), ―casts
a cloud‖ over these authorities. The footnote does no more than note that the court had
―no occasion to consider in this case whether the filing of a motion for extension of the
appearance period (or a motion to vacate forfeiture) extends the commencement of the
90-day period for entering summary judgment,‖ citing to People v. Granite State
Insurance Co., supra, 114 Cal.App.4th 758. In Granite State, the court held that when a
motion to vacate a forfeiture has been filed within the appearance period, the 90-day
period within which the court must enter summary judgment does not begin to run until
11
the motion to vacate has been decided. The reasoning behind that decision hardly
suggests, as the People urge, that when a motion to extend the appearance period filed
within the initial 185-day period is decided after the expiration of the appearance period
(as authorized by section 1305, subdivision (j)), the extension begins on the day the
extension is ordered, rather than the date on which the initial 185-day appearance period
expired. Despite the ―cloud,‖ the contrary interpretation was reaffirmed in 2010 in People
v. Bankers Ins. Co., supra, 182 Cal.App.4th 1377.
Under the construction of section 1305.4 adopted by every court that has thus far
considered the question, the summary judgment in the present case was entered after the
expiration of the 90-day time period permitted by section 1306, subdivision (c). The
notice of forfeiture was mailed to Surety on January 18, 2011. The 185th day thereafter
was July 22, 2011. The maximum extension of the appearance period authorized by
section 1305.4 was 180 days from July 22, 2011, to January 18, 2012. The order
purporting to extend the appearance period to January 31, 2012 therefore was
unauthorized by the statute. Measuring the 90-day period for entering summary judgment
under section 1306 from January 18, 2012 – the latest date authorized by section 1305.4 –
the 90 days expired on April 17, 2012. The summary judgment entered on April 26, 2012
therefore was in excess of the court‘s jurisdiction.
However, as the court observed in People v. Bankers Ins. Co., supra, ―[t]hat . . . is
not the end of the matter.‖ (182 Cal.App.4th at p. 1382.) Surety asserts that because the
summary judgment was entered in excess of the court‘s jurisdiction, the order is void.
However, as the Supreme Court explained in People v. American Contractors Indemnity
Co., supra, 33 Cal.4th at pp. 660-661, and the Court of Appeal repeated in People v.
Bankers Ins. Co., supra, 182 Cal.App.4th at pp. 1382-1383, ―When a court has
fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is
merely voidable. [Citations.] That is, its act or judgment is valid until it is set aside, and a
party may be precluded from setting it aside by ‗principles of estoppel, disfavor of
collateral attack or res judicata.‘ ‖ In American Contractors Indemnity Co., the Supreme
Court held that a summary judgment prematurely entered was merely voidable, not void,
12
and upheld an order denying a motion to set aside the summary judgment as untimely. In
Bankers Ins. Co., the court held that when the trial court entered a summary judgment
beyond the properly computed 90-day period authorized by section 1306, subdivision (c),
it ―acted in excess of jurisdiction, and not outside the court‘s fundamental jurisdiction
over the bail bond forfeiture‖ and therefore that the surety could be estopped from
challenging the summary judgment. (182 Cal.App.4th at p. 1384.) In Bankers Ins. Co.,
the surety had explicitly requested the extension of the appearance period to a date
beyond the permissible 180 days and the Court of Appeal held that ―the surety‘s
affirmative conduct makes it appropriate to estop it from challenging the trial court‘s
erroneous extension of the appearance period.‖ (Id. at p. 1386.)6 On that basis the court
denied the surety‘s motion to vacate the summary judgment enforcing the surety‘s bond.
(See also, People v. National Automobile & Casualty Co.(2000) 82 Cal.App.4th 120;
County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10.)
Surety acknowledges that ―[t]he facts in [Bankers Ins. Co.] are similar to those
here, except that the surety there invited the jurisdictional error by requesting an
extension to a date beyond that permitted by the statute.‖ Here, in contrast, Surety‘s
motion under section 1305.4 requested an ―order extending time on the bond,‖ citing
section 1305.4 and counsel submitted a proposed order that left blank the date to which
the appearance period would be extended. The People submitted a written response to
6
The full paragraph in which this statement appears is as follows: ―We do not intend by
this opinion to create a broad estoppel rule applicable to any misstep made by the surety.
We recognize that the statutory provisions are replete with technicalities, and the trial
courts must be vigilant in following the statutory strictures. In the circumstances here,
however, the surety's affirmative conduct makes it appropriate to estop it from
challenging the trial court's erroneous extension of the appearance period. To rule
otherwise on this record would create a wholly unacceptable precedent, encouraging
sureties to request multiple extensions from busy judges and, when their requests are
honored and they nevertheless cannot produce the defendant, claim that they were wrong
to have asked for further time and the judge should not have listened to their entreaties.
To permit the surety to have it both ways—to obtain more time to avoid forfeiture of the
bond, and then to have the bond exonerated because the judge gave them more time—
would be to allow an intolerable manipulation of the trial courts. This we cannot and will
not condone.‖ (182 Cal.App.4th at p. 1386.)
13
Surety‘s motion, stating they were not opposed to the extension and suggesting that ―the
statutory deadline should be extended in this matter for 180 days from the date of the
hearing on this motion, i.e., until January 31, 2012.‖ The court order entered on August 5,
2011 adopted the People‘s suggestion and purported to extend the deadline to January 31,
2012, 13-days beyond the date authorized by section 1305.4. At no time did Surety bring
to the court‘s attention the fact that the deadline should have been stated to be January 18.
Thus, assuming the Surety‘s motion to set aside the summary judgment to be
timely, the critical question is whether Surety‘s acquiescence in the court‘s indication that
the appearance period would remain open until January 31 estops it from now claiming
that the period expired earlier and the court therefore entered summary judgment too late.
Although the situation here may not be as compelling as in Bankers Ins. Co., equitable
principles nonetheless justify application of the estoppel doctrine. ―There is substantial
authority for the proposition that a party who has invoked or consented to the exercise of
jurisdiction beyond the court‘s authority may be precluded from challenging it afterward,
even on a direct attack by appeal.‖ (2 Witkin, California Procedure, Jurisdiction § 333 at
p. 949 (5th ed. 2008) (italics added); In re Griffin (1967) 67 Cal.2d 343, 347.) Failure to
object may be sufficient to indicate consent. (Bel Mar Estates v. California Coastal Com.
(1981) 115 Cal.App.3d 936, 940 [―A party cannot sit idly by and permit action to be
taken and later say that it had not consented‖]; Mt. Holyoke Homes, LP v. California
Coastal Com. (2008) 167 Cal.App.4th 830, 842; West Coast Constr. Co. v. Oceano
Sanitary Dist. (1971) 17 Cal.App.3d 693, 699.) Whether knowingly or not, Surety
received the advantage of having the appearance period held open beyond what should
have been the deadline. Had the defendant been produced between January 18 and
January 31, the People would have been hard pressed to oppose relief from forfeiture on
the bond. (See County of Los Angeles v. Ranger Ins. Co., supra, 70 Cal.App.4th at p. 19.)
Both the People and the court appear to have relied on the January 31 date specified
without objection in the court‘s order. The summary judgment was entered within 90
days of that date. The defendant for whom Surety posted bond having failed to appear,
there is no reason for which Surety should not be estopped from challenging the
14
timeliness of the summary judgment entered within the time period to which Surety
tacitly acquiesced.
Thus, because Surety is estopped to challenge the timeliness of the summary
judgment, the motion to set it aside was properly denied.
Disposition
The order denying the motion to set aside the summary judgment, discharge the
forfeiture and exonerate bail is affirmed.
_________________________
Pollak, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Jenkins, J.
A136872
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Trial Court: Superior Court, County of San Mateo
Trial Judge: Hon. Joseph E. Bergeron, Judge
Counsel for Appellant: E. Alan Nunez
Accredited Surety and Casualty
Company, Inc.
Counsel for Respondent: John C. Beiers, County Counsel
County of San Mateo Peter K. Finck, Deputy County Counsel
16