People v. Cotton Belt Ins. Co.

California Court of Appeal Jun 10, 1983 No. Civ. 53872Published

Before: Elkington

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Holding. The court held that an order denying a motion to set aside a summary judgment is not appealable when the underlying summary judgment was itself appealable and the time for appeal had expired.

Issues

Whether an order denying a motion to set aside a summary judgment is appealable when the underlying judgment was appealable but not challenged by timely appeal.
Whether a summary judgment entered within a court's fundamental jurisdiction can be challenged by collateral attack after becoming final.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is also settled law that where a judgment is appealable, no appeal lies from an order, as here, refusing to set it aside.”

“Errors, if any, (we observe none) were errors within jurisdiction which may not be raised by collateral attack, after the judgment becomes final for lack of an appeal therefrom.”

[807]

Opinion

ELKINGTON, J.

Defendant Cotton Belt Insurance Company, in the business of acting as surety on bail bonds, appeals from an order of the superior court denying its motion to set aside a summary judgment for the amount of a bail bond written for a defaulted criminally accused person.

Penal Code section 1305 provides that when a bailed criminally charged defendant neglects to appear in court as ordered, “the court must direct the fact to be entered upon the minutes and the undertaking of bail. . . must thereupon be declared forfeited. ” Notice of such action shall be mailed to the surety of the bail bond and to the bail agent or solicitor who posted the bond. If at any time within 180 days of the forfeiture, the defendant shall appear or a satisfactory excuse for his nonappearance be given, “the court shall direct the forfeiture ... to be discharged upon such terms as may be just.”

However: “When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture . . .

shall enter a summary judgment

against each bondsman named in the bond in the amount for which the bondsman has bound himself. ...” (Pen. Code, § 1306; italics added.)

Cotton Belt Insurance Company posted a bail bond in the amount of $9,000 to guarantee the appearance of one Susan Averiti in a criminal action. She failed to make a scheduled court appearance and the bail bond was ordered forfeited.

Thereafter, February 5, 1981, more than 180 days after such forfeiture and without the forfeiture having been set aside, the court entered summary judgment against Cotton Belt Insurance Company for the amount of the bail bond. On the same day,

February 5, 1981,

the clerk mailed to Cotton Belt Insurance Company notice of entry of the summary judgment. Time for filing an appeal from the summary judgment expired 60 days after the mailing of such notice, according to rule 2, California Rules of Court.

People v. Cotton Belt Ins. Co.

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ELKINGTON, J.

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