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People v. Indiana Lumbermens Mutual Insurance Co.

July 21, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of Los Angeles County, Richard S. Kemalyan, Judge. Reversed with directions. (Los Angeles County Super. Ct. No. SJ0969).

The opinion of the court was delivered by: Klein, P. J.

CERTIFIED FOR PUBLICATION

Defendant and appellant Indiana Lumbermens Mutual Insurance Company (the Surety) appeals a postjudgment order denying its motion to vacate summary judgment and forfeiture and exonerate bond.

The defendant, one Laimbeer, failed to appear and bail was forfeited. Some three months later, Laimbeer was surrendered to custody in the underlying case, outside the county where the case is located. (Pen. Code, § 1305, subd. (c)(3).)*fn1 Under these circumstances, the Surety was not required to file a motion to vacate the forfeiture and exonerate the bond within the 180-day period. (People v. Ranger Ins. Co. (2006) 141 Cal.App.4th 867, 870-871 (Ranger); contra People v. Lexington National Ins. Co. (2007) 158 Cal.App.4th 370, 374-375 (Lexington).) Presented with a split of authority, we follow the Ranger decision rather than Lexington because the Ranger interpretation is supported by the language of the statute and avoids a forfeiture. We hold it was sufficient that Laimbeer was surrendered to custody, outside the county, in the underlying case within the 180-day period. (§ 1305, subd. (c)(3).)

We further conclude the Surety's postjudgment motion to vacate was timely because the summary judgment was void and therefore was subject to attack at any time. The summary judgment was not entered in accordance with the consent to judgment given by the Surety - the Surety did not consent to entry of summary judgment on the forfeited bond in the event the defendant were surrendered to custody within the 180-day period. (§ 1305, subd. (c)(3).)

Accordingly, the order is reversed with directions.

FACTUAL AND PROCEDURAL BACKGROUND

On March 17, 2007, the Surety's agent, The Bail Hotline Bail Bonds, posted bail in the amount of $35,000 for the release of Laimbeer from custody on charges pending in the superior court in Los Angeles County (the County).

On April 18, 2007, Laimbeer failed to appear. The trial court ordered the bail forfeited and issued a bench warrant. Notice of forfeiture was mailed on the same date. The notice indicated the Surety may, "within 185 days from the date of the mailing of this notice surrender the defendant to the court or to custody or appear in court to make a motion to set aside the forfeiture of bail/bond."*fn2

On July 16, 2007, about three months after Laimbeer failed to appear, he was arrested by the Surety's agent and surrendered to the County of San Bernardino Sheriff's Department. He was subsequently incarcerated at the California Correctional Institution in Tehachapi.

On December 4, 2007, summary judgment was entered on the forfeited bond pursuant to the clerk's application. Notice of entry of judgment was served the same day.

On January 2, 2008, the Surety filed a motion to vacate April 18, 2007 forfeiture and the December 4, 2007 summary judgment, and to exonerate the bond. The Surety contended Laimbeer's arrest in the underlying case within the 180-day period of section 1305 entitled the Surety to relief from the summary judgment and the forfeiture. The Surety relied on Ranger, supra, 141 Cal.App.4th 867, a decision by Division Six of the Second Appellate District, for the proposition that when a defendant whose bail was forfeited is arrested outside of the county where the case is located within the 180-day period of section 1305, a surety has no time constraints to bring a motion to vacate the forfeiture. Here, Laimbeer was arrested and taken into custody in San Bernardino County some three months after the subject bail bond forfeiture. Therefore, the Surety was entitled to relief from the summary judgment and forfeiture, irrespective of the date the Surety filed its motion to vacate the forfeiture.

The County filed opposition papers, contending the trial court lacked jurisdiction to vacate the forfeiture. The County acknowledged the Ranger decision (Ranger, supra, 141 Cal.App.4th 867) but argued the trial court should follow Lexington, supra, 158 Cal.App.4th 370, from the Third Appellate District, which disagreed with Ranger. Lexington held a motion to exonerate a bond pursuant to section 1305, subdivision (c)(3) is not exempt from the requirement that a surety file a motion to exonerate the bond within 185 days of the mailing of the notice of forfeiture. (Lexington, supra, 158 Cal.App.4th at pp. 374-375.)

On May 23, 2008, the matter came on for hearing. The trial court opined "both the Ranger... and the Lexington analyses are well reasoned.... The court simply feels that there are clearer reasons under the Lexington decision."

On June 13, 2008, the Surety filed a timely notice of appeal from the order denying its motion to ...


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