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People v. Bankers Insurance Co.

March 16, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BANKERS INSURANCE COMPANY DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court for the County of Los Angeles. Patrick J. Hegarty, Judge. Affirmed. (Los Angeles County Super. Ct. No. SJ001059).

The opinion of the court was delivered by: Lichtman, J.*fn12

CERTIFIED FOR PUBLICATION

SUMMARY

Bankers Insurance Company appeals from the denial of its motion to vacate a judgment ordering the forfeiture of an $80,000 bail bond. Bankers asserts the court had no jurisdiction to enter summary judgment against the surety on the bond, because the court (at Bankers's request) extended the statutory time for setting aside the forfeiture beyond the time authorized by statute. As a result, summary judgment was granted after the time within which the court was authorized to do so had expired. We affirm the court's order refusing to vacate its grant of summary judgment. Although the court acted in excess of its jurisdiction when it acceded to Bankers's request to extend the time for setting aside the forfeiture, Bankers is estopped from challenging both that order and the summary judgment premised upon it.

FACTUAL, LEGAL AND PROCEDURAL BACKGROUND

Bankers posted a surety bond of $80,000 to secure the appearance of defendant Karen Cholakian on a complaint alleging several felonies. Cholakian did not appear on January 29, 2007 for the setting of a preliminary hearing, and the trial court (Judge Patrick Hegarty) ordered bail forfeited. Notice of forfeiture was mailed to the surety on the same date.

Under the statutes governing bail bonds, if a defendant appears, either voluntarily or in custody, within 180 days of the date of mailing the notice of forfeiture, the court must vacate the order of forfeiture and exonerate the bond. (Pen. Code, § 1305, subd. (c)(1).)*fn1 At any time within this period - referred to variously as the appearance period or the exoneration period, which is extended to 185 days to account for mailing of the notice of forfeiture - the surety may seek an order extending the 185-day period. The court may, if good cause is shown for doing so, order the period extended "to a time not exceeding 180 days from its order." (§ 1305.4; see § 1305, subd. (i).) Where several shorter extensions are granted, the courts have held that section 1305.4 allows "an extension of no more than 180 days past the 180-day [effectively the 185-day] period set forth in section 1305." (People v. Taylor Billingslea Bail Bonds (1999) 74 Cal.App.4th 1193, 1199 (Taylor Billingslea); see also People v. Granite State Ins. Co. (2003) 114 Cal. App. 4th 758, 768 (Granite State) ["[w]e agree ... that the exoneration period can only be extended an additional 180 days once"].) Once the appearance period has elapsed without the forfeiture having been set aside, the court "shall enter a summary judgment against each bondsman named in the bond" in the amount of the bond plus costs. (§ 1306, subd. (a).) And "[i]f, because of the failure of any court to promptly perform the duties enjoined upon it pursuant to [section 1306], 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." (§ 1306, subd. (c).)

In this case, Bankers filed a motion on July 18, 2007, to extend the 185-day period, which was to expire on August 2, 2007. A hearing on the motion was held on August 20, 2007,*fn2 and the court (Judge Michelle R. Rosenblatt) extended the appearance period to November 20, 2007. *fn3

On November 19, 2007, the day before the extended appearance period was to expire, Bankers filed another motion to extend the period for an additional three months. The motion was heard on December 6, 2007, and the court (Judge Hegarty) found good cause to extend the statutory time to January 22, 2008.

On January 22, 2008, Bankers filed a third motion to extend the appearance period - according to the notice of motion, "for 6 months."*fn4 The accompanying affidavit from Bankers's agent requested that the court "grant me another 30 days extension," which he stated "should fall within the jurisdictional statutory period of 180 days ...." The memorandum of points and authorities also concluded by stating that "an order for extension of the statutory time for a period of thirty (30) days should be granted."

The trial court (Judge Hegarty) found good cause and granted Bankers's motion, extending the statutory time period for almost six additional months, to July 15, 2008.

The defendant was never produced, and on July 21, 2008, the court (Judge Richard S. Kemalyan) entered summary judgment against Bankers on the bond, in the total amount of $80,320 ($80,000 plus $320 in court costs). The clerk mailed notice of entry of judgment on July 22, 2008. Bankers took no appeal from the judgment.

On October 10, 2008, after the time to appeal from the judgment expired, Bankers filed a motion to vacate the order of forfeiture and the judgment. According to the docket report in the underlying criminal case, the trial court (Judge Hegarty) denied the motion on October 27, 2008, and Bankers ...


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