Filed 5/16/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B309234
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. BA453010/SJ4660
FINANCIAL CASUALTY &
SURETY, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Victoria B. Wilson, Judge. Affirmed.
Law Office of John Rorabaugh and John Mark Rorabaugh
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Adrian G.
Gragas, Assistant County Counsel, and Yuan Chang, Deputy
County Counsel for Plaintiff and Respondent.
INTRODUCTION
Financial Casualty & Surety, Inc. (Surety) provided a
$100,000 bail bond for a criminal defendant who failed to appear
in court as required. The court declared a forfeiture of the bond
under Penal Code section 1305 1 and Surety failed to vacate the
forfeiture within the statutorily specified appearance period.
Accordingly, the court entered summary judgment against Surety
in the amount of the bond and court costs.
Surety appeals from the denial of its motion to set aside the
summary judgment on the forfeited bond. It argues the trial court
prematurely entered summary judgment because an emergency
rule adopted by the Judicial Council in response to the Covid-19
pandemic (Emergency rule 9), which tolled “the statutes of
limitations and repose for civil causes of action,” also tolled the
appearance period for vacating forfeitures of bail bonds. We
disagree and affirm the order.
FACTS AND PROCEDURAL BACKGROUND
In March 2019, Surety posted a bail bond of $100,000 for a
criminal defendant (Vanessa Anderson) accused of three felony
counts. Anderson failed to appear in court on May 17, 2019, and
the court ordered the bail forfeited. The clerk mailed notice of the
forfeiture on May 23, 2019, informing Surety of the court’s order
and notifying it that the court could set aside the forfeiture upon
the filing of a timely motion under section 1305 within the
appearance period, i.e., 185 days. At Surety’s request, the court
1 All undesignated statutory references are to the Penal Code.
2
subsequently extended the appearance period by 180 days, to
June 10, 2020, under section 1305.4. 2
When the appearance period terminated on June 11, 2020,
the bond forfeiture had not been set aside. Accordingly, under
section 1306, the court entered summary judgment against
Surety on July 31, 2020. The clerk mailed notice of entry of
judgment in the amount of the bond, plus $435 in court costs, to
Surety on August 3, 2020.
On August 17, 2020, Surety filed a motion to set aside the
summary judgment and to reinstate and extend the bail bond
under Code of Civil Procedure section 473, subdivision (b). Surety
stated that the statewide shelter-in-place order issued by
Governor Gavin Newsom 3 interfered with its ability to locate
Anderson and argued that circumstance was a judicial emergency
(Code of Civil Procedure sections 12 and 12a) and, in addition,
was an “excusable mistake” within the meaning of Code of Civil
Procedure section 473, subdivision (b). Surety also urged the
court to set aside the judgment under its broad equitable power.
The court denied the motion on October 16, 2020. Surety
timely appeals.
2 Emergency rule 9 became effective on April 6, 2020.
3On March 19, 2020, the Governor issued an executive order directing
nonessential workers to remain at home due to the ongoing threat
posed by the Covid-19 pandemic. ( [as of May 6, 2022], archived at
.)
3
DISCUSSION
Surety contends the trial court prematurely entered
summary judgment because Emergency rule 9, which expressly
tolled “the statutes of limitations and repose for civil causes of
action” from April 6, 2020 to October 1, 2020, also tolled the
period in which a surety may move to vacate the forfeiture of a
bail bond. We disagree.
1. Scope and Standard of Review
We independently review and interpret Judicial Council
emergency rules. (See People v. Financial Casualty & Surety, Inc.
(2021) 73 Cal.App.5th 33, 38–39 (Financial Casualty); In re M.P.
(2020) 52 Cal.App.5th 1013, 1020.)
The well-settled rules of statutory construction apply to the
California Rules of Court. (Alan v. American Honda Motor Co.,
Inc. (2007) 40 Cal.4th 894, 902; People v. Guerra (2016) 5
Cal.App.5th 961, 966.) “ ‘Our primary task in interpreting a
statute is to determine the Legislature’s intent, giving effect to
the law’s purpose. [Citation.] We consider first the words of a
statute, as the most reliable indicator of legislative intent.
[Citation.]’ [Citation.] We construe the statute’s words in context,
and harmonize statutory provisions to avoid absurd results.
[Citation.] If we find the statutory language ambiguous or subject
to more than one interpretation, we may look to extrinsic aids,
including legislative history or purpose to inform our views.
[Citation.] We also strive to avoid construing ambiguous statutes
in a manner that creates doubts as to their validity.” (John v.
Superior Court (2016) 63 Cal.4th 91, 95–96.)
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2. Legal Principles
2.1. Bail Forfeiture Procedure
A bail bond is a contract between the government and a
surety in which the surety guarantees that a specific criminal
defendant will appear in court as required during the criminal
prosecution. The surety pledges to pay the court the specified
bond amount if it is unable to secure the defendant’s presence.
(See, e.g., People v. Financial Casualty & Surety, Inc. (2016) 2
Cal.5th 35, 42.)
If the defendant subsequently fails to appear as required
and the failure to appear is not excused, the court must declare
the bail forfeited. (§ 1305, subd. (a); see County of Los Angeles v.
Financial Casualty & Surety, Inc. (2018) 5 Cal.5th 309, 314;
People v. North River Ins. Co. (2020) 53 Cal.App.5th 559, 563.)
After the court declares the bail forfeited and the clerk of the
court mails notice to the surety, the surety has a period of 185
days (known as the appearance period) to secure the defendant’s
appearance in court. The surety may seek an extension of the
appearance period for no more than 180 days. (§ 1305.4; People v.
Financial Casualty & Surety, Inc., supra, 2 Cal.5th at p. 46, fn. 2
[noting the total allowable extension is limited to 180 days from
the date of the first extension order].) If the surety cannot
produce the defendant during the appearance period, it may
move to vacate the forfeiture and exonerate the bond if it can
prove that one of the limited excuses set forth in the statute is
applicable. (§ 1305, subd. (c)(1); see People v. American
Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658.)
If the appearance period expires and the bail forfeiture has
not been set aside, the court must enter a summary judgment
against the surety in accordance with the terms of the bail bond.
5
(§ 1306, subd. (a); People v. North River Ins. Co., supra, 53
Cal.App.5th at p. 563.) The summary judgment following a
declaration of forfeiture is a consent judgment entered without a
hearing pursuant to the terms of the bail bond. (People v. North
River Ins. Co., at p. 567 [“If the forfeiture has not been vacated at
the end of the appearance period, the court has no choice but to
enter summary judgment in accordance with the terms stated in
the bond.”]; People v. American Contractors Indemnity Co. (2015)
238 Cal.App.4th 1041, 1047 [“A summary judgment in a bail
forfeiture is a consent judgment entered without a hearing and
the proceedings are not adversarial.”].)
While bail bond proceedings occur in connection with
criminal prosecutions, they are independent from and collateral
to the prosecutions and are civil in nature. (See People v.
American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657;
Financial Casualty, supra, 73 Cal.App.5th at p. 39.)
2.2. Emergency Rule 9
Emergency rule 9 was adopted by the Judicial Council and
became effective on April 6, 2020. As initially adopted,
Emergency rule 9 tolled “the statutes of limitations on all civil
causes of action from April 6, 2020, … until 90 days after the
Governor declares that the state of emergency related to the
COVID-19 pandemic is lifted.” As amended on May 29, 2020, and
as pertinent here, Emergency rule 9 reads: “(a) Tolling statutes of
limitations over 180 days [¶] 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.”
The Advisory Committee comment explains the application
of the rule: “Emergency rule 9 is intended to apply broadly to toll
6
any statute of limitations on the filing of a pleading in court
asserting a civil cause of action. The term ‘civil causes of action’
includes special proceedings. (See Code Civ. Proc., §§ 312, 363
[‘action,’ as used in title 2 of the code (Of the Time of
Commencing Civil Actions), is construed ‘as including a special
proceeding of a civil nature’[ ]; special proceedings of a civil
nature include all proceedings in title 3 of the code, including
mandamus actions under §§ 1085, 1088.5, and 1094.5—all the
types of petitions for writ made for California Environmental
Quality Act (CEQA) and land use challenges]; see also Pub.
Resources Code, § 21167(a)–(e) [setting limitations periods for
civil ‘action[s]’ under CEQA].) [¶] The rule also applies to statutes
of limitations on filing of causes of action in court found in codes
other than the Code of Civil Procedure, including the limitations
on causes of action found in, for example, the Family Code and
Probate Code.”
The Judicial Council explained the background of
Emergency rule 9, and the reasons for amending it, in a
Circulating Order (No. CO-20-09 found at
[as of May 6, 2022],
archived at .)
3. Emergency rule 9 did not extend the appearance
period in bond forfeiture proceedings.
As noted, Emergency rule 9 applies to “statutes of
limitations and repose for civil causes of action.” Surety urges
that the rule applies in special proceedings, such as bail
forfeiture proceedings, and that the rule tolled the appearance
period because a “motion to vacate forfeiture commences an
action for relief from forfeiture.”
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“ ‘ “[A] statute of limitations normally sets the time within
which proceedings must be commenced once a cause of action
accrues.” ’ [Citation.] ‘A cause of action is simply the obligation
sought to be enforced against the defendant.’ [Citation.]”
(Financial Casualty, supra, 73 Cal.App.5th at p. 40.)
Bail forfeiture proceedings in general, and a motion for
relief from bail forfeiture in particular, do not fit these
definitions. Specifically, when a surety files a motion for relief
from forfeiture, it is not initiating an action or proceeding. As
explained ante, several steps precede the request for relief in bail
forfeiture proceedings: the surety has posted the bond, the
criminal defendant has failed to appear, the court has made a
determination that the surety breached the guarantee set forth in
the bond, and in some cases, as here, the surety has requested
and received an extension of time in which to procure the
defendant’s appearance. (See, e.g., People v. Surety Insurance Co.
(1978) 82 Cal.App.3d 229, 236–237 [“ ‘[T]he declaration of
forfeiture … is not a forfeiture at all but merely the initial step
(in the nature of an order to show cause) in proceedings to forfeit
the bond and render judgment against the surety.’ ”]; Financial
Casualty, supra, 73 Cal.App.5th at p. 41.)
Further, in seeking relief from bail forfeiture, the surety is
not seeking to enforce an obligation. Quite the opposite. In a
motion for relief from bail forfeiture, the surety is trying to avoid
the consequence of its failure to fulfill its obligation under the
bond. In other words, the surety is in a defensive posture.
(Financial Casualty, supra, 73 Cal.App.5th at p. 41 [“Once
commenced by the trial court, the [bail forfeiture] proceeding will
result in a monetary summary judgment against the surety
8
unless the surety takes defensive action within the appearance
period.”].)
Moreover, unlike a statute of limitations, the appearance
period does not limit the time in which the surety may initiate a
proceeding or otherwise assert its rights. It is the time in which
the surety may either cure its breach of the bond by producing
the defendant or demonstrate why the breach should be excused.
Assuming, without deciding, that the language of the rule
contains some ambiguity, we turn to the Judicial Council’s
additional statements about Emergency rule 9 to determine the
intended scope of the rule. The Advisory Committee comment
states that the rule applies “broadly to toll any statute of
limitations on the filing of a pleading in court asserting a civil
cause of action … [¶] including … causes of action found in codes
other than the Code of Civil Procedure, including the limitations
on causes of action found in, for example, the Family Code and
Probate Code.” Like the language of Emergency rule 9, the
comment refers to “pleading[s] … asserting a civil cause of
action.” As our colleagues in the Fourth District recently
observed, a motion to vacate a bail forfeiture is not a pleading. It
is a motion and is ancillary to ongoing proceedings. (See
Financial Casualty, supra, 73 Cal.App.5th at p. 40.)
To the extent any question remains about the intended
scope of Emergency rule 9, it is resolved by the Circulating Order,
which plainly focuses on the initiation of civil proceedings. (See
Circulating Order at p. 1 [“[E]mergency rule 9 … tolled statutes
of limitations on the commencement of civil causes of action … .”];
id. at p. 5 [discussing “the time for filing certain initial
pleadings”]; id. at pp. 6, 9 [Emergency rule 9 “is intended to apply
broadly to toll any statutory limitation on the filing in court of a
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pleading commencing a civil cause of action … .”]; id. at p. 6
[Emergency rule 9 is intended to relieve “difficulty timely filing
initial pleadings in the trial court.”]; see also People v.
Philadelphia Reinsurance Corp. (2021) 70 Cal.App.5th Supp. 10,
18 [“To the extent that Emergency Rule 9 may be ambiguous, the
Advisory Committee comment to the rule and the Judicial
Council’s circulating order memorandum support the conclusion
that Emergency Rule 9 does not extend the timelines set forth in
the Penal Code sections governing bail bond forfeiture
procedures.”].)
Relying on People v. Wilcox (1960) 53 Cal.2d 651, Surety
asserts that “a motion to vacate forfeiture commences an action
for relief from forfeiture that is a final determination in a matter
collateral to the criminal prosecution.” But the threshold question
in that case, to which Surety directs our attention, concerned the
finality and appealability of an order granting relief from
forfeiture. (Id. at pp. 654–655.) Appealability is not at issue in the
present case. Moreover, the determination that an order is
appealable has no bearing on the issues at hand, i.e., whether a
motion for relief from bail forfeiture initiates a civil proceeding,
states a cause of action, or is governed by a statute of limitations.
Surety also claims the appearance period set forth in
section 1305 is a statute of limitations, citing People v.
Stuyvesant Ins. Co. (1968) 261 Cal.App.2d 773. We agree with our
colleagues in the Fourth District that the court’s reference to the
appearance period as a statute of limitations was in the context
of an analogy and was not a reflection of the court’s legal analysis
concerning the nature of bail forfeiture proceedings. (Financial
Casualty, supra, 73 Cal.App.5th at pp. 41–42.)
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In sum, a motion to set aside bail forfeiture, in which a
surety may assert defenses in an existing forfeiture proceeding, is
not a pleading that commences a cause of action or special
proceeding. Thus, the appearance period is not a statute of
limitations subject to tolling under Emergency rule 9. 4
DISPOSITION
The order is affirmed. The respondent shall recover its
costs on appeal.
CERTIFIED FOR PUBLICATION
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
4Because we conclude Emergency rule 9 does not toll the appearance
period, we need not address Surety’s argument that the court entered
summary judgment prematurely due to the tolling effect of the rule.
11