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The People v. the North River Insurance Company

November 3, 2011

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



APPEAL from an order of the Superior Court of Los Angeles County. Terry A. Bork, Judge. (Los Angeles County Super. Ct. No. SJ003469)

The opinion of the court was delivered by: J. Chavez

CERTIFIED FOR PUBLICATION

Affirmed.

The County of Los Angeles (county) appeals from an order granting The North River Insurance Company's (bail agent) motion to set aside summary judgment, discharge forfeiture and exonerate bail. The county raises a single issue on appeal: whether the trial court erred as a matter of law in finding Code of Civil Procedure section 473 (section 473) applicable in this bail forfeiture proceeding. We find no error, and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUD

Both parties to this appeal agree that the facts are not in dispute.

On September 19, 2008, Benigno Madriles (defendant) was charged with one count of violation of Penal Code section 459. On September 25, 2008, the bail agent posted a bail bond in the amount of $50,000 for the defendant's release. The defendant was ordered to appear on February 10, 2009, for probation and sentencing. The defendant failed to appear and the court ordered the bail forfeited and also issued a bench warrant and printed a notice of bail forfeiture addressed to the surety and the bail agent. The notice informed the bail agent that its contractual obligation to pay the bond would become absolute on the 186th day following the date of mailing of the notice.*fn1 That day fell on August 17, 2009.

On July 22, 2009, the bail agent noticed a motion to extend the appearance period pursuant to Penal Code section 1305.4. On August 25, 2009, the motion was granted, and the appearance period was extended to February 19, 2010.

On February 9, 2010, prior to the expiration of the new appearance period, the bail agent filed a motion to vacate forfeiture and exonerate bail (motion) on the grounds that relief from forfeiture was warranted under Penal Code section 1305, subdivision (g). Alternatively, the bail agent sought tolling of the appearance period pursuant to Penal Code section 1305, subdivision (e). The motion was set for hearing on February 23, 2010.

On February 9, 2010, the bail agent also contacted Kenneth Weston (Weston), an attorney located in the Los Angeles area, whom the bail agent regularly contacted to appear on bail motions on its behalf, and retained him to appear on the motion at the February 23, 2010 hearing.

Weston failed to appear at the hearing. He later declared that his failure to appear was a result of not having received the motion, as requested from the bail agent, until after summary judgment was entered.

On February 23, 2010, the superior court noted that the bail agent had not appeared nor called the court. The matter was taken off calendar.

On February 25, 2010, the bail agent contacted the court and was informed that the matter had been taken off calendar due to its nonappearance. At the bail agent's request, the matter was put back on calendar for March 2, 2010.

On March 1, 2010, the court entered summary judgment on the forfeited bond, and mailed notice of judgment on the same date. On March 2, 2010, the court refused to hear the bail agent's motion, since the matter had been summarily adjudicated the previous day.

On April 6, 2010, the bail agent filed a motion to set aside summary judgment, discharge forfeiture, and exonerate bail (motion to set aside summary judgment) pursuant to section 473 on the grounds of attorney mistake, inadvertence, surprise or excusable neglect. Weston filed a declaration in support of the motion, explaining his failure to appear due to the fact that he never received the motion by mail. The county opposed the motion, arguing that section 473 relief was not available to the bail agent, summary judgment was not premature, and that the bond should not be exonerated.

Bail agent's motion to set aside summary judgment was heard on May 21, 2010. The court found that section 473 relief was available to the bail agent and that the declaration of Weston showed excusable neglect or mistake. The court continued the matter to June ...


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