People v. Financial Casualty & Surety CA4/1 (2014) · DecisionDepot
People v. Financial Casualty & Surety CA4/1
California Court of Appeal Apr 29, 2014 No. D063699Unpublished
Filed 4/29/14 P. v. Financial Casualty & Surety CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
party who seeks or consents to action beyond the court's power as defined by statute or
decisional rule may be estopped to complain of the ensuing action in excess of
jurisdiction." (In re Griffin, supra, 67 Cal.2d at p. 347.)2
In the context of bail proceedings, courts apply estoppel to prevent sureties from
challenging jurisdiction when their conduct resulted in entry of summary judgment
beyond the statutory 90-day period. In Ranger I, supra, 70 Cal.App.4th 10, the court
held the surety was estopped from arguing summary judgment was not timely entered
2 To support its argument, Financial relies on Tabor v. Superior Court of Los Angeles County (1946) 28 Cal.2d 505, 508, which held a "premature notice of intention to move for a new trial was 'a nullity and ineffectual for any purpose' and that in the absence of the filing of a timely notice, [the] court was without power to entertain the motion." The Supreme Court rejected this argument (asserted by the same attorney) in the context of the bail forfeiture statutes by distinguishing Tabor as an attack by extraordinary writ while the trial court proceeding was ongoing rather than a collateral attack on a voidable but final judgment. (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 665.) 7
because the surety asked the court to toll the appearance period and then argued the court
had no jurisdiction to issue the tolling order. (Id. at pp. 12, 15.) The court rejected the
surety's argument stating, "Ranger . . . came to the trial court . . . with its hat in hand,
seeking and receiving a favor—the tolling of the statutory time period in which to have
the forfeiture on its bond vacated. Having been handed the favor, Ranger now seeks to
bite the hand from which the favor was obtained by contending the trial court was
without authority to toll the running of the 185-day." (Id. at pp. 18-19.) "We will not
permit Ranger to 'trifle with the courts.' " (Id. at p. 19.)
In People v. National Automobile & Casualty Ins. Co. (2000) 82 Cal.App.4th 120,
the surety stipulated to extend the appearance period after the statutory deadline expired.
(Id. at pp. 123, 125.) The court held the surety was estopped from challenging the
extension of the appearance period and the late entry of summary judgment stating,
"although the trial court had acted in excess of its jurisdiction when it extended the
appearance period, the [s]urety here is estopped from challenging those orders. Since its
challenges to the summary judgments are premised upon the alleged invalidity of those
orders, those challenges also fail." (Id. at p. 127.)
The court in People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 1377, 1385
followed these authorities and applied estoppel to prevent a surety from challenging the
court's jurisdiction to enter summary judgment after it sought an extension of the
appearance period. The court concluded, "the surety's affirmative conduct makes it
appropriate to estop it from challenging the trial court's erroneous extension of the
appearance period. To rule otherwise . . . would create a wholly unacceptable precedent,
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encouraging sureties to request multiple extensions from busy judges and, when their
requests are honored and they nevertheless cannot produce the defendant, claim that they
were wrong to have asked for further time and the judge should not have listened to their
entreaties. To permit the surety to have it both ways—to obtain more time to avoid
forfeiture of the bond, and then to have the bond exonerated because the judge gave them
more time—would be to allow an intolerable manipulation of the trial courts. This we
cannot and will not condone." (Id. at p. 1386.)
In Accredited Surety, supra, 220 Cal.App.4th 1137, a surety sought an extension
of time to move for relief from forfeiture. It filed its motion on the 185th day of the
initial appearance period and left a blank in the proposed order for the end date. The
People did not oppose the request and suggested the statutory deadline be extended "180
days from the date of the hearing on this motion," which resulted in an appearance period
greater than 365 days and summary judgment entered more than 90 days after the
expiration of the 365-day period. (Id. at p. 1141.) The appellate court held the surety
was estopped from challenging the timeliness of the summary judgment because "it
acquiesced in the scheduling error leading to the late entry of the summary judgment."
(Id. at pp. 1140, 1150-1151.) Since the surety did not advise the trial court the deadline
should be set earlier, the appellate court determined the failure to object was sufficient to
constitute consent or acquiescence. (Id. at p. 1150.) " 'A party cannot sit idly by and
permit action to be taken and later say that it had not consented.' " (Ibid., quoting Bel
Mar Estates v. California Coastal Com. (1981) 115 Cal.App.3d 936, 940.)
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In this same vein, the court in Mt. Holyoke Homes, LP v. California Coastal Com.
(2008) 167 Cal.App.4th 803, 842 held a developer was estopped to contest the California
Coastal Commission's jurisdiction to hear administrative appeal when it participated in
the proceedings for years before asserting the commission lost jurisdiction for failure to
comply with time period for hearing. The court noted the developer's actions constituted
acquiescence to jurisdiction or, alternatively, invited error. (Ibid.)
We agree with these authorities and conclude Financial is estopped from
challenging the court's jurisdiction to enter summary judgment after it lost an appeal,
having obtained a stay for the purpose of pursing the appeal. Financial initially moved to
vacate the forfeiture arguing it should be relieved of its obligation under the bond because
the complaint filed against the criminal defendant had allegations greater than the
"charges" for which he was arrested. When the trial court denied this motion, the court
clerk asked if it wanted more time on the forfeiture.3 Counsel responded by saying the
matter should be stayed pending an appeal and asked, "that efforts to collect the forfeiture
not be instituted . . . until we have a final judgment." The court granted the stay.
Whether this exchange can be interpreted as a request for a stay of the appearance
period or a stay of entry of judgment, it is unseemly for Financial to now argue in this
3 We apparently do not have a complete record of the extension requests in this case. Financial suggests the court extended the appearance period to or near the maximum extension permitted under section 1305.4 since the notice of forfeiture was mailed on November 23, 2010 and the motion to exonerate bail was heard on October 21, 2011. Therefore, at the hearing on October 21, 2011, 33 days remained before the total appearance period of 365 days could have elapsed on November 23, 2011 if the full extension period were granted. If Financial could have procured and produced the defendant within that time, bail would have been exonerated. 10
second appeal it did not actually request or take advantage of the stay and to further argue
its former counsel was ignorant or did not know what he was doing. As a result of the
stay, summary judgment was not entered and enforcement efforts under section 1306,
subdivision (e) did not commence, just as Financial's counsel requested. Financial was
not required to immediately pay the forfeited amount and it was not required to post a
bond for its first appeal as it admits it would have been required to do if judgment was
entered.
In reaching our conclusion, we bear in mind the law traditionally disfavors
forfeiture and we must strictly construe the bail bond statutes to avoid "the harsh results
of a forfeiture." (County of Los Angeles v. American Contractors Indemnity Co. (2007)
152 Cal.App.4th 661, 665-666.) This rule of strict construction represents concern "not
so much for the bail bond companies, to whom forfeiture is an everyday risk of doing
business, but for those who bear the ultimate weight of the forfeiture, family members
and friends who have pledged their homes and other financial assets to the bonding
companies to secure the defendant's release." (Id. at p. 666.) It is for this reason the
statutory procedures imposed on the court and the prosecuting agencies in sections 1305
and 1306 require precision and timeliness. (County of Los Angeles. v. Surety Ins. Co.
(1984) 162 Cal.App.3d 58, 63.)
However, where the requirements of a statute "are primarily for the benefit of [a]
defendant [they] may be waived." (West Coast Constr. Co. v. Oceano Sanitary Dist.
(1971) 17 Cal.App.3d 693, 699 [participation in a preliminary injunction hearing set one
day beyond the statutory limit estopped defendant from challenging validity of
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injunction].) Similarly here, because the statutory deadlines are primarily for the benefit
of the surety, it stands to reason a surety may, and did in this case, waive the statutory
protections.
It smacks of gamesmanship for Financial to ask the trial court for the favor of a
stay to seek an appeal and then, having obtained the favor of the stay, to argue the court
lost jurisdiction to enter summary judgment because it had no authority to grant the stay
requested. We will not allow or condone this trifling with the court. (In re Griffin,
supra, 67 Cal.2d at p. 348; Ranger, supra, 70 Cal.App.4th at p. 19.)
III
The Appeal Is Not Frivolous
The People argues this appeal is "arguably frivolous" and "wholly without merit"
because Financial failed to address the foregoing estoppel authorities in its opening brief.
It also pointed out Financial's current attorney, E. Alan Nunez, was previously sanctioned
for bringing a frivolous appeal in a similar case where he asserted a court lacked
jurisdiction to grant an extension request sought by the surety.
Because the People did not move for sanctions, on our own motion we notified the
parties we were considering whether the appeal is frivolous and, if so, whether to impose
sanctions against Financial and/or its counsel for filing and prosecuting a frivolous
appeal. We provided an opportunity for opposition and oral argument. (Code Civ. Proc.,
§ 907; Cal. Rules of Court, rule 8.276; In re Marriage of Flaherty (1982) 31 Cal.3d 637,
650 [an appeal is frivolous when prosecuted for an improper motive or when it
indisputably has no merit].) The opposition provided by Nunez on behalf of Financial
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recasted Financial's arguments on the merits and did little to address this court's concern
regarding the failure to discuss pertinent authorities in the opening brief.
In People v. Ranger Ins. Co. (2002) 101 Cal.App.4th 605 (Ranger II), the Third
District sanctioned Nunez and the surety $10,000 for failing to address three published
cases applying estoppel to bail bond proceedings, even though Nunez was the attorney of
record in each of the cases. (Id. at pp. 609-611 citing Ranger I, supra, 70 Cal.App.4th at
pp. 18-19, People v. National Automobile and Casualty Ins. Co., supra, 82 Cal.App.4th at
pp. 124-127; People v. Frontier Pacific Co. Insurance (2000) 83 Cal.App.4th 1289, 1294
[surety who requested a hearing on its section 1304.5 motion for extension after
expiration of the 185-day period was estopped from arguing the court lacked jurisdiction
to enter the extension order].)
Contrary to Nunez's contention, he was not sanctioned solely for miscounting
days. The court in that case concluded the appeal was frivolous in large part because he
failed to address authorities directly adverse to his client's position. (Ranger II, supra,
101 Cal.App.4th at p. 611.)
Here Nunez failed to address the same estoppel cases in the opening brief even
though the trial court based its denial of Financial's motion to set aside summary
judgment on estoppel. He "fully anticipated" the People would rely on these estoppel
authorities in the respondent's brief and "chose to await discussion of those cases in its
reply brief."
Nunez attempted to distinguish these cases in the reply brief by arguing they
involved requests for extensions of the appearance period rather than a stay. We conclude
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this is a distinction without a difference. The effect of a request or stipulation to extend
the appearance period beyond the statutory limit is the entry of summary judgment after
expiration of 90-day time period permitted by section 1306, subdivision (c). As Financial
admits, "[s]uch action on the part of the surety [is] tantamount to first telling the court
that the extension of the 180-day period would not affect its power to enter summary
judgment and later turning around and arguing that it had no power to enter summary
judgment."
Similarly here, Financial's request to stay entry of judgment arguably resulted in
entry of judgment after the 90-day time period. Financial's conduct in this case likewise
told the court the stay would not affect its power to enter summary judgment, but it now
argues the court had no power to stay the judgment or to enter summary judgment after
the first appeal.
Each of the estoppel cases discussed infra held the entry of judgment beyond the
90-day period was an act " 'in excess of jurisdiction, and not outside the court's
fundamental jurisdiction over the bail bond forfeiture' and therefore . . . the surety could
be estopped from challenging the summary judgment." (Accredited Surety, supra, 220
Cal.App.4th at p. 1149.) These cases are dispositive.
Nunez also argues estoppel should not apply because Financial's former attorney
was ignorant or mistaken about the law and Financial did not actually request or benefit
from the stay. As we have discussed, the record is clear Financial's counsel did request a
stay and Financial benefited from the stay. For the first time, in the sanctions opposition,
Financial suggests its former attorney could have been requesting a stay of collection
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proceedings, but not necessarily a stay of entry of judgment. This argument has no merit.
Even if one could read counsel's request in this way (which we do not), at no time did
Financial or its counsel correct the court when it stated it would enter a stay or when its
minute order stated entry of judgment was stayed. This acquiescence estops Financial
from now asserting a failure to timely enter summary judgment. (Accredited Surety,
supra, 220 Cal.App.4th at p. 1150-1151.)4
We do not condone Nunez's briefing strategy in this case of choosing not to
candidly discuss authorities adverse to his client's position in the opening brief.
However, we agree there appear to be no cases directly addressing the application of
estoppel to facts where the court was asked to enter a stay of entry of the summary
judgment in bail proceedings. Therefore, under the circumstances, we decline to find the
appeal "indisputably has no merit" or that no "reasonable attorney would agree that the
appeal is totally and completely without merit." (In re Marriage of Flaherty, supra, 31
Cal.3d at p. 650.) As such, we will not impose sanctions.
4 We note Nunez failed to discuss Accredited Surety, supra, 220 Cal.App.4th 1137 in any briefing even though this recent case was cited by the People and even though Nunez was, again, counsel of record for the surety in that matter. 15
DISPOSITION
The judgment and the order denying the motion to set aside the judgment are
affirmed. Respondent is entitled to its costs on appeal.