Filed 1/27/22 County of Santa Barbara v. American Surety Co. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
COUNTY OF SANTA 2d Civil No. B309245
BARBARA, (Super. Ct. No. 20CV02315)
(Santa Barbara County)
Plaintiff and Respondent,
v.
AMERICAN SURETY
COMPANY,
Defendant and Appellant.
American Surety Company (American Surety) appeals
entry of summary judgment on the forfeiture of a bail bond.
American Surety contends Emergency rule 9 of the “Judicial
Council’s Emergency Rules Related to COVID-19” (Cal. Rules of
Court, Appx., Emergency rule 9) tolled the time in which it could
move to set aside the forfeiture under Penal Code section 1305,
subdivision (a)1, rendering judgment premature under these
circumstances.
Our colleagues in Division 1 of the Fourth Appellate
District thoroughly discussed and resolved this issue in People v.
Financial Casualty & Surety (Dec. 21, 2021, D078294) __
Cal.App.5th __ [2021 Cal.App. Lexis 1072].) As Justice Haller
stated, “The plainly intended meaning of Emergency rule 9 is
that statutes of limitation and repose for pleadings commencing
civil causes of action—not deadlines for filing motions asserting
defenses—are temporarily tolled.” (Id., at p. *11, italics added.)
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Santa Barbara County District Attorney charged Angel
Campuzano with felony child molestation in 2017.2 Campuzano
pleaded not guilty on all counts and the trial court set bail at
$250,000. American Surety posted a bond for his release from
custody. The trial court ordered the bond forfeited when
Campuzano failed to appear at his felony settlement conference.
The clerk mailed notice to his bail bondsman and American
Surety in October of 2019. Neither moved to set aside the
forfeiture within the statutory period to do so. (§ 1305.)
Respondent County of Santa Barbara filed the civil forfeiture
action from which this appeal arises. The trial court entered
summary judgment against American Surety in July of 2020.
(§ 1306.)
1 We cite the Penal Code unless noted otherwise.
Superior Court, County of Santa Barbara case no.
2
17CR11845.
2
The forfeiture proceedings coincided with California’s
initial COVID-19 outbreak and the Judicial Council’s adopting of
emergency rules in April 2020. American Surety moved to set
aside summary judgment pursuant to Emergency rule 9, which
tolled certain civil causes of action for a period of six months.3
The trial court determined the rule did not apply under the
circumstances and denied the motion. American Surety
appealed. We affirm.
DISCUSSION
“[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.” (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22.)
A court must declare bail forfeited if the defendant fails to appear
as required. (§ 1305, subd. (a).) The surety is not without
remedy. A 180-day “appearance period” follows in which it can
move to set aside forfeiture on certain grounds, such as the
defendant appearing in court or the bail agent surrendering him
into custody. (People v. American Contractors Indemnity Co.
(2004) 33 Cal.4th 653, 658, citing § 1305, subd. (c).) The surety
may also request an extension of the appearance period for good
3 Emergency rule 9(a), as amended on May 29, 2021, states:
“Notwithstanding any other law, the statutes of limitations and
repose for civil causes of action that exceed 180 days are tolled
from April 6, 2020, until October 1, 2020.” Emergency rule 9(b)
applies to shorter limitations periods. It states:
“Notwithstanding any other law, the statutes of limitations and
repose for civil causes of action that are 180 days or less are
tolled from April 6, 2020, until August 3, 2020.” Our holding
obviates the need to resolve which applies here.
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cause. (§ 1305.4.) The trial court must enter summary judgment
against the surety in the amount of the bail bond, plus costs, if
the appearance period elapses without the forfeiture being set
aside. (§ 1306, subd. (a).) American Surety appeals judgment
entered in this manner. (See People v. International Fidelity Ins.
Co. (2012) 204 Cal.App.4th 588, 592 [order denying a motion to
vacate summary judgment is appealable].)
American Surety does not assert the trial court conducted
the forfeiture proceedings improperly. Rather, it contends
Emergency rule 9 provided a blanket extension to sureties such
as itself whose appearance periods were set to expire during the
rule’s tolling period, i.e., April 6, 2020, and October 1, 2020. The
parties do not dispute the facts underlying forfeiture and entry of
summary judgment below. As such, we review Emergency rule 9
independently. (In re M.P. (2020) 52 Cal.App.5th 1013, 1020.)
Emergency rule 9 is expressly limited to “civil causes of
action.” This language alone precludes us from adopting
American Surety’s expansive interpretation. A cause of action
“arises out of an antecedent primary right and corresponding
duty and the delict or breach of such primary right and duty by
the person on whom the duty rests. ‘Of these elements, the
primary right and duty and the delict or wrong combined
constitute the cause of action in the legal sense of the term . . . .’”
(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797-
798, quoting McKee v. Dodd (1908) 152 Cal. 637, 641.) The bail
forfeiture statutes afforded American Surety due process prior to
entry of judgment, not an antecedent primary right of its own.
(People v. Surety Ins. Co. (1978) 82 Cal.App.3d 229, 240.) The
surety’s posture here is responsive. (See People v. American
Surety Co. (2019) 31 Cal.App.5th 380, 389, quoting Chas. F.
4
Harper Co. v. DeWitt etc. Co. (1938) 10 Cal.2d 467, 469 [surety is
“‘a party to the action for the limited purpose of giving the court
jurisdiction to render and enforce a judgment’”].)
The rule’s official comments likewise exclude motions or
other ancillary filings in a pending action. “Emergency Rule 9 is
intended to apply broadly to toll any statute of limitations on the
filing of a pleading in court asserting a civil cause of action.”
(Jud. Council of Cal., Advisory Com. Comment to Emergency
Rule 9, Emergency Rules Related to COVID-19, italics omitted.)4
DISPOSITION
The trial court properly denied the motion to set aside
summary judgment. Judgment is affirmed. Respondent shall
recover its costs.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
4 We grant respondent’s August 2, 2021, request for judicial
notice of Circulating Order Memorandum to the Judicial Council
Number CO-20-09 relating to Emergency rule 9. (Evid. Code,
§§ 451, subd. (c), 452, subds. (d)(1) & (e)(1).)
5
James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________
Law Office of John Rorabaugh, John M. Rorabaugh and
Crystal L. Rorabaugh, for Defendant and Appellant.
Rachel Van Mullem, County Counsel, and Maria Salido
Novatt, Senior Deputy County Counsel, for Plaintiff and
Respondent.
6