Filed 6/10/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157633
v.
BANKERS INSURANCE CO., (San Mateo County
Super. Ct. No. 18NF009324-A)
Defendant and Appellant.
Bankers Insurance Company (the Surety) appeals from trial court
orders denying its motion to vacate forfeiture and exonerate bail and denying
its subsequent motion to toll time. Because the trial court failed to timely
enter summary judgment and now lacks jurisdiction to enforce the forfeiture
under Penal Code section 1306, subdivision (c), in any event, we will not
reach the merits. Instead, we will direct the trial court to enter an order
exonerating the bond.
FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 2018, the Surety, through its bail agent Bail Hotline Bail
Bonds, posted a bond of $100,000 for the release of Jammie Lee (Lee or
defendant) from the San Mateo County Jail.
On September 13, 2018, Lee failed to appear at a scheduled
preliminary hearing. The court issued a bench warrant for Lee and ordered
the bail forfeited.
1
On September 21, 2018, the clerk of the court mailed a “Notice of Order
Forfeiting Bail” to the Surety. The notice provided, “You may seek relief from
this forfeiture in accordance with California Penal Code sections 1305
through 1306. You have 180 days from the date of this notice to seek such
relief, plus 5 more days if this notice was mailed to you.”
Motion to Vacate Forfeiture and Exonerate Bail
On March 25, 2019, the Surety filed a motion to vacate the forfeiture
and exonerate the bail. Supporting exhibits indicated that Lee was currently
in custody in the Alameda County Jail on federal charges and that the San
Mateo County District Attorney’s Office had been notified of defendant’s
detention in federal custody. In a supporting declaration, Roman Clark, a
fugitive recovery agent, stated, first, that Alameda County was informed of
Lee’s San Mateo County warrant, but a jail employee would not sign a form
accepting or declining surrender and, second, that a law enforcement
employee in San Mateo County reported she was unable to place a hold on
Lee.1
Clark declared he located defendant in custody at the Alameda
1
County Jail on January 3, 2019. Clark went to the jail and spoke with
Technician Hull on January 4. He gave Hull an “Affidavit of Surrender” and
“Receipt Accepting or Declining the Surrender” for defendant. (The “Receipt
Accepting/Declining Surrender of Defendant by Bondsman” that Clark
provided Hull identified Lee by date of birth and listed the San Mateo County
criminal case number, the bond number, and the warrant number.) Hull said
he would not be able to place a hold on defendant and told Clark to follow up
the next day. The next day, Clark called the Alameda County Jail and spoke
with Deputy Sullivan, who told him they would not be able to place a hold on
defendant since there was a U.S. Marshall hold in the system. On January 7,
2019, Clark called the Colma police and spoke with Dispatcher Thelma, who
agreed to try to place a hold on defendant. He called Thelma one week later.
According to Clark, “Thelma stated, that due to the reasons she can not
disclose she was unable to place a hold on our defendant.”
2
The Surety advanced three arguments in support of its motion: (1) the
court was required to vacate the forfeiture and exonerate the bail under
Penal Code section 1305, subdivision (c)(3) (§ 1305(c)(3))2 because defendant
had been surrendered by the bail agent to local law enforcement agencies;
(2) if the district attorney were to choose not to extradite defendant,
exoneration of bail was required under section 1305, subdivision (f)
(§ 1305(f)); and (3) if the district attorney were to place a hold on defendant,
the court should exonerate bail under section 1305, subdivisions (i) and (c)(3).
In support of its first argument, the Surety relied on the principle
“where the government interferes with the performance of the bail contract or
makes performance impossible the bond is exonerated.” It argued Clark
diligently tried to have defendant surrendered on the warrant, but “Despite
proper surrender documentation given by the bail agent to the jailer on
January 4, 2019, . . . the Alameda County Sheriff’s Department refused to
accept the surrender of the defendant on the out of county warrant.”
As alternative relief, the Surety requested tolling urging, “At the very
least the bondsman is entitled to a tolling of time pursuant to Penal Code
§ 1305(e) while the defendant is disabled from appearing in court because of
his incarceration in Federal Custody at the Alameda County Jail.”3 The
2 Section 1305(c)(3)) provides, “If, outside the county where the case is
located, the defendant is surrendered to custody by the bail or is arrested in
the underlying case within the 180–day period, the court shall vacate the
forfeiture and exonerate the bail.” Further undesignated statutory references
are to the Penal Code.
3Section 1305, subdivision (e) (§ 1305(e)) provides that the court “shall
order the tolling of the 180–day period” where the “defendant is temporarily
disabled by reason of illness, insanity, or detention by military or civil
authorities,” “[b]ased upon the temporary disability, the defendant is unable
3
motion concluded, “Wherefore, it is respectfully requested that the court
vacate the forfeiture and exonerate bail or in the alternative toll time.”
In opposition, the People argued the Surety had not offered competent
evidence that the person located in the Alameda County Jail was, in fact,
Lee,4 and, in any event, there was no “surrender” to custody given that the
Surety never arrested defendant and never delivered defendant to the court
or to law enforcement. The People further claimed the Surety failed to
demonstrate that surrender of defendant “was made impossible” and asserted
section 1305(f) did not apply because the San Mateo District Attorney was
electing to seek extradition of defendant.5
A hearing on the motion was held on April 15, 2019. The trial court
indicated it would deny the motion because section 1305(f) did not apply
(since the District Attorney was electing to extradite Lee) and because the
alternative request for tolling was not properly referenced in the notice of
motion. The court did not mention the Surety’s primary argument that it
to appear in court during the remainder of the 180–day period, and “[t]he
absence of the defendant is without the connivance of the bail.”
4 One of the exhibits to the Surety’s motion appeared to be a printout
dated January 14, 2019, of an Alameda County inmate locator website, which
indicated that a “Jamie Lee” with the same date of birth as defendant had
been arrested in November 2018 and was in custody in the Alameda County
Jail for federal criminal charges.
5 In a supporting declaration, Chief Deputy District Attorney Albert
Serrato stated it was the understanding of the District Attorney’s Office that
defendant was currently detained in federal custody in the Alameda County
Jail, and the office had elected to extradite defendant to San Mateo County.
4
was entitled to exoneration of the bond because the defendant was
surrendered to custody.6
The Surety’s attorney then argued its request for tolling was properly
before the court under “the Lexington decision.”7 The court denied the
motion “without prejudice” and indicated the Surety could “resubmit it
correctly.” The Surety’s attorney asked for a continuance rather than denial
6 The trial court’s reasons for denying the Surety’s motion are gleaned
from its discussion on the record in People v. Calderon, San Mateo County
Superior Court Case No. 18NF006480A, a case in which the Surety sought to
vacate forfeiture raising the same legal and procedural issues on strikingly
similar facts—a defendant found in custody in Alameda County on federal
charges where the jailer would not sign the bail agent’s proffered affidavit
and receipt regarding the defendant’s San Mateo County warrant. (The
forfeiture order in Calderon is now on appeal; see People v. Bankers
Insurance Co. (A157635, app. pending).) The Surety’s motions in Calderon
and in this appeal were heard on the same day. The trial court first heard
argument on the Surety’s motion in Calderon, denying the motion. The
parties immediately segued to argument on the motion currently on appeal,
and the court denied the motion on “the same basis” as in Calderon. We have
granted the Surety’s unopposed motion to augment the record on this appeal
with the Calderon motion hearing transcript.
7 In People v. Lexington National Ins. Corp. (2010) 181 Cal.App.4th
1485, the surety Lexington moved to vacate forfeiture and exonerate its bond
under section 1305, subdivision (c) where the defendant was known to be in
custody out of state. At the hearing on the motion, after the trial court
indicated the motion would be denied, counsel for Lexington asked for tolling;
the court denied the request on the ground tolling had not been properly
requested by noticed motion. (Id. at pp. 1488-1489.) The appellate court,
however, concluded the trial court should have granted Lexington relief,
either exoneration or tolling. (Id. at p. 1492.) The court rejected the
argument that Lexington’s tolling request was untimely and not properly
noticed. “The [trial] court’s denial of exoneration implicitly indicated it was
not satisfied the disability was permanent. Thus, the disability was
necessarily temporary, and the court was compelled by the statutory scheme
to consider and grant a tolling based on the temporary nature of the
disability.” (Id. at p. 1493.)
5
without prejudice, explaining there was “not specific case law” authorizing
motions after 180 days but a continuance would allow “an additional notice of
motion.” The court denied the continuance request without explanation.
Motion to Toll
On April 19, 2019, the Surety filed a motion requesting tolling under
section 1305(e). The People opposed, arguing the motion was untimely
because it was filed after the 180–day period following the notice to the
Surety of forfeiture by the clerk of the court. The court denied the motion.
DISCUSSION
While the Surety does argue it was entitled to exoneration or tolling at
the time the trial court denied its motion to vacate forfeiture and exonerate
bond, its primary contention on appeal is that it is entitled to appellate relief
because the trial court has now lost jurisdiction to enforce the forfeiture. The
Surety asserts that, after the denial of its motion, the trial court failed to
enter summary judgment against the Surety within the statutory period for
doing so and therefore, pursuant to section 1306, subdivision (c) (§ 1306(c)),
“the bail is exonerated.”
Before we can address this contention, we must decide whether we
should consider a fact that did not exist when the court made its ruling.
“It is an elementary rule of appellate procedure that, when reviewing
the correctness of a trial court’s judgment [or appealable order], an appellate
court will consider only matters which were part of the record at the time the
judgment [or order] was entered. [Citation.] This rule preserves an orderly
system of appellate procedure by preventing litigants from circumventing the
normal sequence of litigation.” (Reserve Insurance Co. v. Pisciotta (1982) 30
Cal.3d 800, 813 (Reserve Insurance).)
6
Our Supreme Court has recognized, however, that this rule “is
somewhat flexible.” (Reserve Insurance, supra, 30 Cal.3d at p. 813.) For
example, “courts have not hesitated to consider postjudgment events when
legislative changes have occurred subsequent to a judgment [citations] or
when subsequent events have caused issues to become moot [citation].”
(Ibid.) In Reserve Insurance, our high court deemed it appropriate to consider
the fact that a plaintiff insurance company became insolvent postjudgment in
resolving an appeal in a declaratory judgment action regarding insurance
coverage. (Id. at pp. 805–806, 813.) The court reasoned, “because the fact [of
insolvency] is not in dispute, we do not usurp the fact-finding function of the
trial court. A prompt determination by us avoids the necessity for repetitive
litigation of issues that have been fully briefed. Furthermore, the court
records regarding [the insurance company]’s insolvency would properly be the
subject of judicial notice.” (Id. at p. 813.)
We believe this appeal presents that rare case where it is appropriate
for us to consider events that occurred after entry of the appealed order. It is
undisputed that no summary judgment has been entered in this case. A
prompt determination that the bond has been exonerated avoids repetitive
litigation. And the court record showing the absence of a summary judgment
would properly be the subject of judicial notice (Evid. Code, § 452, subd. (d)).
Accordingly, we will consider the new fact that the trial court has failed to
enter summary judgment as of September 21, 2020.
“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).)” (People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 658 (American Contractors).) Here,
defendant failed to appear on September 13, 2018, and the clerk mailed a
7
notice of forfeiture on September 21, 2018, starting the 185–day appearance
period. (See ibid.; § 1305, subd. (b)(1).)8
After the appearance period “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.” (§ 1306, subd. (a).)
But the trial court’s authority to enter summary judgment is time
limited. Section 1306(c), provides, “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.”
(Italics added.) This time limit is jurisdictional. (See American Contractors,
supra, 33 Cal.4th at p. 663 [“ ‘Under the Penal Code, a court has jurisdiction
over a bail bond from the point that it is issued until the point it is either
satisfied, exonerated, or time expires to enter summary judgment after
forfeiture’ ” (italics added)]; People v. Surety Ins. Co. (1973) 30 Cal.App.3d 75,
79–80 [“There can be no doubt the Legislature intended to impose a 90–day
time limit in which to enter summary judgments on defaulted bail which is
8 During the appearance period, a surety may move to vacate the order
of forfeiture and exonerate the bond based on the defendant’s appearance in
court (§ 1305, subd. (c)(1)), the defendant’s surrender to custody by the bail or
arrest in the underlying case within the county where the case is located (id.,
subd. (c)(2), or the defendant’s surrender to custody by the bail or arrest in
the underlying case outside the county where the case is located (id., subd.
(c)(3)) (the basis for the Surety’s motion in the present case). And, as we have
seen (fn. 3, ante), the trial court is required to toll the appearance period
during periods when the defendant’s temporary disability prevents
appearance. (§ 1305(e).)
8
jurisdictional, for the statute uses the words: ‘[or]the right to do so expires
and the bail is exonerated’ ”].)
Generally, the 90–day period during which the trial court has authority
to enter summary judgment begins after the 185–day appearance period.
However, “in cases where a motion to vacate forfeiture is timely filed prior to
the expiration of the [appearance] period, but not decided until after that
period, the 90–day period to enter summary judgment begins to run when the
motion is denied.” (People v. Granite State Insurance Co. (2003) 114
Cal.App.4th 758, 767 (Granite State).)
In this case, the Surety filed a timely motion to vacate forfeiture and
exonerate bond on the 185th day of the appearance period, March 25, 2019.
Therefore, under Granite State, the trial court’s 90–day period to enter
summary judgment began after the court denied the Surety’s motion on April
15, 2019. That period expired July 15, 2019.9 Since it is not disputed that
summary judgment was not entered by July 15, 2019, the trial court’s “right
to [enter summary judgment] expire[d] and the bail is exonerated.” (§ 1306(c),
italics added; see American Contractors, supra, 33 Cal.4th at p. 658 [“If
summary judgment is not entered within the statutory 90–day period, the
bond is exonerated”].)
9 This appeal by the Surety did not divest the trial court of jurisdiction
to enter summary judgment. (See People v. Indiana Lumbermens Mutual
Ins. Co. (2014) 226 Cal.App.4th 1, 6–10 [holding the trial court retained
jurisdiction to enter summary judgment on a forfeited bond during the
pendency of a surety’s appeal from an order denying its motion to vacate],
disapproved of on another point by K.J. v. Los Angeles Unified School Dist.
(2020) 8 Cal.5th 875, 888, fn. 6.) Thus, this appeal does not toll the 90–day
period to enter summary judgment. (County of Sacramento v. Insurance Co.
of the West (1983) 139 Cal.App.3d 561, 563.)
9
Under these circumstances, there is no purpose in our determining
whether the trial court erred in denying either the Surety’s motion to vacate
forfeiture and exonerate bond or its subsequent motion to toll because, in any
event, the People cannot enforce the forfeiture of the bond. The appeal of the
trial court’s rulings has been, in effect, mooted by subsequent events.
The People offered no argument for avoiding the result that the bond
has been exonerated by operation of law under section 1306(c). At oral
argument, county counsel stated he had no evidence that the period for
entering summary judgment had not expired, and he suggested that if the
Surety were to file a motion to exonerate the bond under section 1306(c) in
the trial court, the People would likely file a non-opposition. Thus, there is
no dispute about either the absence of summary judgment in this case or the
legal consequence of that absence. In concluding the bond is exonerated, “we
do not usurp the fact-finding function of the trial court” because the facts are
undisputed. (Reserve Insurance, supra, 30 Cal.3d at p. 813.)
We reiterate the general “rule of appellate procedure [is] that, when
reviewing the correctness of a trial court’s [order], an appellate court will
consider only matters which were part of the record at the time the [order]
was entered.” (Reserve Insurance, supra, 30 Cal.3d at at p. 813.) This rule
“preserves an orderly system of appellate procedure [and] prevent[s] litigants
from circumventing the normal sequence of litigation.” (Ibid.) But in this
unusual case, in the interests of judicial efficiency, we will direct the trial
court to enter an order exonerating the bond.
DISPOSITION
The trial court is directed to enter an order exonerating the bond.
10
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A157633, People v. Bankers Ins. Co.
11
Court: San Mateo County Superior Court
Trial Judge: Hon. Amarra A. Lee
Law Office of John Rorabaugh, John Mark Rorabaugh, Crystal L. Rorabaugh,
for Defendant and Appellant
John C. Beiers, County Counsel, Joseph F. Charles, Deputy County Counsel,
for Plaintiff and Respondent
A157633, People v. Bankers Ins. Co.
12