Filed 9/1/20 P. v. North River Insurance Co. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B294461
Plaintiff and Respondent, Los Angeles County
Super. Ct. Nos. SJ4539,
v. BA442748
THE NORTH RIVER
INSURANCE COMPANY et al.,
Defendants and Appellants.
APPEAL from a judgment and postjudgment order of the
Superior Court of Los Angeles County, Leslie A. Swain,
Christopher K. Lui, and Alison Matsumoto Estrada, Judges.
Affirmed.
Jefferson T. Stamp for Defendants and Appellants The
North River Insurance Company and Bad Boys Bail Bonds.
Mary C. Wickham, County Counsel, Adrian G. Gragas,
Assistant County Counsel, and Latasha N. Corry, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
Defendants The North River Insurance Company (North
River) and Bad Boys Bail Bonds (Bad Boys)1 appeal from the
summary judgment entered on a bond forfeiture and the order
denying appellants’ motion to set aside the summary judgment.
Appellants contend the court violated Penal Code2 section 1306
and North River’s due process rights because the judge who
entered the summary judgment is not the same judge who
declared the bond forfeited. We affirm.
FACTS AND PROCEDURAL BACKGROUND
In December 2015, North River posted a $100,000 bond to
secure the release of the defendant, Calixto Chavez, in the
underlying criminal proceeding. In February 2017, Chavez failed
to appear in that proceeding. The Honorable Leslie A. Swain
ordered the bond forfeited. The court mailed notice of the
forfeiture to North River and Bad Boys in March 2017. In
September 2017, the court extended by 180 days the period in
which North River could produce Chavez to vacate the forfeiture
and exonerate the bond.
In March 2018, Bad Boys filed a motion to vacate the
forfeiture and exonerate the bond, arguing a “permanent
1 We sometimes collectively refer to North River and Bad Boys as
“appellants.”
2 All undesignated statutory references are to the Penal Code.
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disability” prevented Chavez from reappearing in court because
he had returned to Mexico and was barred from reentering the
United States (see § 1305, subd. (d)). Bad Boys attached
supporting evidence to the motion to vacate. In July 2018, after
reviewing the moving papers and hearing oral argument, the
Honorable Christopher K. Lui denied the motion.
On August 1, 2018, Judge Lui entered summary judgment
against North River on the bond in the amount of $100,435. The
court mailed notice of entry of the summary judgment on August
3, 2018.
On October 2, 2018, North River and Bad Boys filed a joint
motion to set aside the summary judgment, vacate the forfeiture,
and exonerate the bond. Appellants argued the summary
judgment was void because it “was not rendered by the judge
[who] declared the bail forfeiture in violation of Penal Code
Section 1306(a) and Constitutional Due Process.” The court
denied appellants’ motion on November 16, 2018.
North River and Bad Boys filed a timely notice of appeal.
DISCUSSION
North River and Bad Boys contend the summary judgment
is void because it was not entered by the same judge who
declared the bond forfeited. Specifically, appellants argue the
procedure that the court used violated North River’s federal due
process rights and section 1306. We disagree.
1. Bond Forfeiture Statutory Scheme
Under section 1305, subdivision (a), a trial court must
declare a bail bond forfeited if a defendant fails to appear at a
specified court proceeding without sufficient excuse. Once the
forfeiture is declared, the court must mail notice to the surety
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and the bail agent if the underlying bond is greater than $400. (§
1305, subd. (b).) The surety then has 185 days (180-day statutory
period plus 5 days for mailing) to bring the defendant to court
(appearance period). (Id., subd. (c)(1); People v. Western Ins. Co.
(2012) 204 Cal.App.4th 1025, 1030.) For good cause, a surety may
obtain an extension of the appearance period for a maximum 180
additional days. (§ 1305.4.) If the defendant is brought back to
court during the appearance period, the court must vacate the
forfeiture and exonerate the bond. (§ 1305, subd. (c)(1).)
If the surety doesn’t bring the defendant back to court
within the appearance period, “the court which has declared the
forfeiture shall enter a summary judgment” against the surety in
the amount of the forfeited bond plus costs. (§ 1306, subd. (a).) If
the court does not enter the summary judgment within 90 days of
the end of the appearance period, “the right to do so expires and
the bail is exonerated.” (Id., subd. (c).)
A bail bond is “regarded as a contract between the
government and the surety.” (People v. Accredited Surety
Casualty Co. (2014) 230 Cal.App.4th 548, 555.) Thus, a summary
judgment on a bond forfeiture is a “consent judgment” entered
under consent given in the underlying bond agreement. (People v.
American Contractors Indemnity Co. (2015) 238 Cal.App.4th
1041, 1047 (American Contractors).) Because it is a consent
judgment, a summary judgment in a bail forfeiture is “entered
without a hearing and the proceedings are not adversarial.”3
3The bond in this case provides in relevant part: “If the forfeiture of
this bond be ordered by the Court, judgment may be summarily made
and entered forthwith against the said THE NORTH RIVER
INSURANCE COMPANY for the amount of its undertaking herein as
provided by Sections 1305 and 1306 of the Penal Code.”
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(County of Los Angeles v. Amwest Surety Ins. Co. (1983) 147
Cal.App.3d 961, 967 (Amwest Surety).)
We generally review issues related to the forfeiture of a
bond for abuse of discretion. (People v. International Fidelity Ins.
Co. (2012) 204 Cal.App.4th 588, 592.) But where, as here, we are
asked to decide only legal issues, such as questions concerning
the court’s jurisdiction and matters of statutory interpretation,
our review is de novo. (Ibid.)
2. Section 1306
“Our primary task in construing a statute is to determine
the Legislature’s intent.” (Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 733.) To do so, we first look to the plain
meaning of the words of the statute. (Ibid.) “ ‘ “If the language is
clear and unambiguous there is no need for construction, nor is it
necessary to resort to [extrinsic] indicia of the intent of the
Legislature ... .” ’ [Citation.]” (Ibid.)
North River and Bad Boys argue the court erred when it
entered summary judgment on the bond because section 1306
requires the same judge who declared the bond forfeited to enter
the summary judgment. Specifically, appellants contend the
Legislature’s use of the definite article “the” immediately before
“court” in section 1306 to identify the court which must enter
summary judgment shows the Legislature intended for the same
judge to declare the bond forfeited and subsequently enter the
summary judgment. Appellants contend that, since the definite
article “the” refers to a “specific thing,” the Legislature “was
identifying a particular court, as in ‘the [same] court that
declared the forfeiture.’ ” According to appellants, “[h]ad the
Legislature intended to permit any judge … who did not actually
declare the forfeiture[] to enter summary judgment, it would have
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used the indefinite article ‘a’ as it did in Penal Code Section
1305(a).” We disagree for a couple of reasons.
First, the plain language of section 1306 does not support
appellants’ interpretation. As noted above, section 1306 provides
that “the court which has declared the forfeiture shall enter the
summary judgment … .” (§ 1306, subd. (a).) The statute refers
only to the court, not a particular judge. Indeed, a cause is
generally “before the court, not the individual judge of that court,
and the jurisdiction which the judge exercises is the jurisdiction
of the court, not of the judge.” (See People v. Madrigal (1995) 37
Cal.App.4th 791, 795.) Nothing in the statute indicates the same
judge must declare the bond forfeited and subsequently enter the
summary judgment. (People v. North River Insurance Co. (Aug.
17, 2020, B295923) __ Cal.App.5th __ [p. 6] (North River) [section
1306’s language requiring the same court that declared the bond
forfeited to enter the summary judgment “does not state, and
does not mean, the same judge of the court must enter both
orders”].)
Second, the Legislature has, in other contexts, specifically
provided that the same judge, and not just the same court, must
perform a series of specific acts, unless that judge is unavailable.
(See § 1170.18, subd. (l) [“If the court that originally sentenced
the petitioner is not available, the presiding judge shall designate
another judge to rule on the petition or application”]; Code Civ.
Proc., §§ 635 [“when the judge who heard or tried the case is
unavailable, the formal judgment or order conforming to the
minutes may be signed by the presiding judge of the court or by a
judge designated by the presiding judge”], 1008, subd. (a)
[applying party may “make application to the same judge or court
that made the [challenged] order, to reconsider the matter and
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modify, amend, or revoke the prior order”].) The Legislature,
therefore, knows how to require a specific judge, as opposed to
the court where the judge sits, to perform the act at issue. Had
the Legislature intended for the same judge who declared a bond
forfeited to enter the summary judgment on that forfeiture, the
Legislature would have provided for such a procedure in section
1306. (Southern Pac. Transportation Co. v. State Bd. of
Equalization (1985) 175 Cal.App.3d 438, 443 [“ ‘It is a well
recognized principle of statutory construction that when the
Legislature has carefully employed a term in one place and has
excluded it in another, it should not be implied where
excluded.’ ”].)
Third, the Law Revision Commission’s comment concerning
a 2012 amendment to section 1306 indicates the Legislature did
not intend for the term “the court” to mean “the judge,” such that
the same judge who declared the bond forfeited must enter the
summary judgment. (See HLC Properties, Ltd. v. Superior Court
(2005) 35 Cal.4th 54, 62 [Law Revision Commission comments
are given “substantial weight” in interpreting the intent of a
statute].) Prior to 2013, section 1306 provided that “the court
which has declared the forfeiture, regardless of the amount of the
bail, shall enter a summary judgment.” (Former § 1306, subd.
(a).) The 2012 amendment removed the words “regardless of the
amount of the bail.” (Stats. 2012, ch. 470 (A.B. 1529 (2011–2012
Reg. Sess.)), § 50.) As the Law Revision Commission explained,
“before unification [of superior and municipal courts], it was
necessary to make clear that a municipal court was authorized to
enter summary judgment on a bail forfeiture even though the
amount of bail exceeded the jurisdictional limit of the municipal
court.” (Cal. Law Revision Com. com., West’s Ann. Pen. Code, foll.
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§ 1306.) The comment, therefore, suggests the Legislature used
the phrase “the court which has declared the forfeiture” to ensure
that a bond forfeiture proceeding was not transferred between a
municipal court and a superior court before the summary
judgment was issued, not to ensure that the judge who declared
the bond forfeited is the same judge who later enters the
summary judgment. (See North River, supra, __ Cal.App.5th __
[pp. 8–9] [in enacting section 1306, “the Legislature’s concern was
with the jurisdiction of the forfeiture court to enter summary
judgment, not with the identity of the particular bench officer
making that decision”].)
Appellants’ reliance on People v. Frontier Pacific Ins. Co.
(2000) 83 Cal.App.4th 1289 is misplaced. In Frontier, the surety
appealed a summary judgment entered on a forfeited bond after
the clerk of the court, and not the judge, signed the summary
judgment order. (Id. at p. 1292.) The reviewing court held it was
error for the clerk to sign the summary judgment order because
“[t]he rendition of judgment is not a ministerial act which may be
delegated to the clerk.” (Id. at p. 1294.) The statute, therefore,
clearly requires a summary judgment order on a forfeited bond to
be signed by a judicial, not a ministerial, officer. (Id. at p. 1295.)
The reviewing court held the judgment was “void for lack of
execution by a judge.” (Id. at p. 1294) The court in Frontier,
however, never considered the question whether section 1306
required the same judge who declared the bond forfeited to enter
the summary judgment on the forfeited bond. Frontier, therefore,
does not support appellants’ argument. (Agnew v. State Bd. of
Equalization (1999) 21 Cal.4th 310, 332 [“ ‘It is axiomatic, of
course, that a decision does not stand for a proposition not
considered by the court.’ ”].)
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In short, we reject appellants’ argument that section 1306
should be interpreted to require the same judge who declared a
bond forfeited to enter the summary judgment on the forfeited
bond.
3. Due Process
Appellants next contend the court violated North River’s
due process rights when a different judge from the one who
declared the bond forfeited entered the summary judgment.
Specifically, appellants argue the procedure violates due process
because the judge who entered the summary judgment did not
have an opportunity to evaluate the evidence supporting the
declaration of the bond forfeiture. (See European Beverage, Inc. v.
Superior Court (1996) 43 Cal.App.4th 1211, 1214 [a party
“ ‘cannot be compelled to accept a decision upon the facts from
another judge or another jury’ ”].) This argument also lacks
merit.
As we explained above, a summary judgment on a bond
forfeiture is a consent judgment. (American Contractors, supra,
238 Cal.App.4th at p. 1047.) By entering into the bond
agreement, North River agreed to be bound by sections 1305 and
1306. Under section 1306, a summary judgment on a bond
forfeiture is entered without notice or an evidentiary hearing.
(Amwest Surety, supra, 147 Cal.App.3d at p. 967.) Thus, by
entering into the bond agreement, North River waived any right
to a noticed evidentiary hearing when the summary judgment is
entered.
In any event, North River received notice of the bond
forfeiture and had an opportunity to oppose the forfeiture
through an evidentiary hearing. (People v. Surety Ins. Co. (1978)
82 Cal.App.3d 229, 237 (Surety Ins.) [due process precludes the
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deprivation of property without notice and the opportunity to be
heard].) Under section 1306, the court may enter summary
judgment on a forfeited bond only after the surety is provided
notice of the declaration of forfeiture and the appearance period
under section 1305 expires without the forfeiture being set aside.
(See Surety Ins., at p. 240.) During the appearance period, the
surety has the right to move to set aside the forfeiture of the bond
or it can produce the criminal defendant, at which point the court
must vacate the forfeiture and exonerate the bond. (§ 1305, subd.
(c)(1); Surety Ins., at p. 240.) The hearing on a motion to set aside
a bond forfeiture is an evidentiary hearing. (Surety Ins., at p.
240.)
After declaring the bond forfeited in this case, the court
mailed North River notice of the forfeiture. That notice informed
North River that its obligation to pay the bond would become
absolute after the expiration of the appearance period. The notice
also advised North River that it could set aside the forfeiture if,
within the appearance period, it “surrender[ed] the defendant to
the court or to custody” or “appear[ed] in court” and successfully
moved “to set aside the forfeiture of bail/bond.” Appellants don’t
dispute that North River received notice of the declaration of
forfeiture and its right to a hearing to set aside the forfeiture. As
the court in Surety Ins. explained, there is no denial of due
process when the surety is notified of the bond forfeiture and
provided an opportunity to respond during the appearance period
through an evidentiary hearing on whether the bond forfeiture
should be vacated. (Surety Ins., supra, 82 Cal.App.3d at p. 240.)
Moreover, appellants don’t contend, nor does anything in
the relevant statutory scheme suggest, that a surety cannot
request an evidentiary hearing to set aside the forfeiture before
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the same judge tasked with entering the summary judgment.
Indeed, as noted above, Bad Boys filed a motion to vacate the
forfeiture and exonerate the bond, which was heard and ruled on
by Judge Lui, the judge who entered the summary judgment.
Thus, North River had ample time to request an evidentiary
hearing before the same judge who entered the summary
judgment, but it never did. Appellants, therefore, have not shown
North River’s due process rights were violated by the procedure
the court used to enter summary judgment on the forfeited bond.
(Surety Ins., supra, 82 Cal.App.3d at p. 239 [“No deprivation of
due process is involved in such a procedure which obliges the
opponent of a declared course of action to demand a hearing.”].)
Appellants also do not point to any evidence in the record that
would support a finding that entry of the summary judgment was
erroneous, such as evidence that the bond forfeiture should have
been set aside or that the declaration of the forfeiture was
erroneous.
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DISPOSITION
The judgment and order are affirmed. Respondent shall
recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
DHANIDINA, J.
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