People v. Fin. Cas. & Sur., Inc.

73 Cal.App.5th 33

287 Cal.Rptr.3d 891

The PEOPLE, Plaintiff and Respondent,

v.FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

D078294

Court of Appeal, Fourth District, Division 1, California.

Filed December 21, 2021

Law Office of John Rorabaugh, John Mark Rorabaugh, Fresno, and Crystal L. Rorabaugh, Newport Beach, for Defendant and Appellant.

Office of County Counsel and Jennifer M. Stone for Plaintiff and Respondent.

HALLER, Acting P. J. Financial Casualty & Surety, Inc. (Surety) provided a $30,000 bail bond for a criminal defendant who failed to appear in court as required, triggering the court to declare a forfeiture of the bond. When Surety failed to vacate the forfeiture within the statutorily specified "appearance period," the court entered summary judgment against Surety in the amount of the bond. Surety argues on appeal that the trial court prematurely entered summary judgment because an emergency rule adopted by the Judicial Council in response to the COVID 19 pandemic (Emergency rule 9), which tolled "the statutes of limitations and repose for civil causes of action," also tolled the appearance period for vacating forfeitures of bail bonds. We disagree and affirm the judgment.

I. OVERVIEW OF BAIL BOND FORFEITURE PROCEDURE

"A bail bond ‘ "is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond." ’ " ( People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 42, 211 Cal.Rptr.3d 79, 384 P.3d 1226 ( Financial Casualty ).) If the defendant "fails without sufficient excuse to appear as required, the court must declare the bail forfeited." ( People v. The North River Ins. Co. (2020) 53 Cal.App.5th 559, 563, 267 Cal.Rptr.3d 722 ( North River–Watts ); see Pen. Code, § 1305, subd. (a) ;¹ Financial Casualty , at p. 42, 211 Cal.Rptr.3d 79, 384 P.3d 1226.) This "forfeiture ... constitutes a ‘breach of th[e] contract’ between the surety and the government." ( People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709, 199 Cal.Rptr.3d 272, 366 P.3d 57 ( Safety National Casualty ).)

For forfeiture of a bond exceeding $400, the surety has a 185-day "appearance period in which to either produce the criminal defendant in court and have the forfeiture set aside, or demonstrate other circumstances requiring the court to vacate the forfeiture." ( People v. The North River Ins. Co. (2020) 58 Cal.App.5th 300, 310, 272 Cal.Rptr.3d 370 ( North River–Rivadeneyra ); see § 1305, subds. (b)(1), (c)(1) ; Financial Casualty, supra , 2 Cal.5th at p. 42, 211 Cal.Rptr.3d 79, 384 P.3d 1226.) "On the surety's motion and a showing of good cause, the court may extend the appearance period for up to an additional 180 days." ( North River–Rivadeneyra , at p. 310, 272 Cal.Rptr.3d 370 ; see § 1305.4 ; Financial Casualty , at pp. 43-44, 211 Cal.Rptr.3d 79, 384 P.3d 1226.)

If the surety fails to vacate the forfeiture by the end of the appearance period, the trial court must enter summary judgment against the surety in the amount of the bond, plus costs. (See § 1306, subd. (a) ; North River–Watts, supra , 53 Cal.App.5th at p. 567, 267 Cal.Rptr.3d 722.) If the court prematurely enters summary judgment before the appearance period has expired, the judgment is voidable. ( People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661, 16 Cal.Rptr.3d 76, 93 P.3d 1020 ( American Contractors ); People v. United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 1001, 195 Cal.Rptr.3d 660.) If the court fails to enter summary judgment " ‘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) ; see North River–Rivadeneyra, supra , 58 Cal.App.5th at p. 311, 272 Cal.Rptr.3d 370.)

"Summary judgment following a declaration of forfeiture is a consent judgment entered without a hearing pursuant to the terms of the bail bond." ( North River–Watts, supra , 53 Cal.App.5th at p. 567, 267 Cal.Rptr.3d 722 ; see People v. American Contractors Indemnity Co. (2015) 238 Cal.App.4th 1041, 1047, 189 Cal.Rptr.3d 881 [" ‘summary judgment in a bail forfeiture is a consent judgment entered without a hearing and the proceedings are not adversarial’ "].)

II. FACTUAL AND PROCEDURAL BACKGROUND

On December 4, 2018, Surety posted a $30,000 bond on behalf of criminal defendant Shuxin Liu. The bond provides that in the event of a forfeiture, "judgment may be summarily made and entered forthwith against [Surety] for the amount of" the bond.

On March 11, 2019, Liu failed to appear in court as required, and the court declared the bond forfeited.

On March 19, 2019, the court notified Surety by mail of the forfeiture. Thus, the 185-day initial appearance period ran from March 19, 2019 to September 19, 2019. On Surety's motion, the trial court extended the appearance period to April 14, 2020.²

In the meantime, in response to the COVID-19 pandemic, the San Diego County Superior Court issued three orders deeming each court day from March 17, 2020 through May 22, 2020 a court holiday "for purposes of computing time for filing papers."³ ( Code Civ. Proc., §§ 12, 12a ["If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday."].) This effectively extended Surety's appearance period to May 26, 2020 (because May 22 was a Friday, and Monday, May 25, was the Memorial Day holiday).

Surety did not move to vacate the forfeiture by May 26, 2020 (or ever).

On August 3, 2020 (within 90 days of the expiration of Surety's appearance period), the trial court entered summary judgment "adjudg[ing] that [the People] recover from [Surety] $30,000," plus costs and interest. The court served notice of entry of judgment on Surety on August 6, 2020.

III. DISCUSSION

Surety contends the trial court prematurely entered summary judgment on August 3, 2020, because Emergency rule 9 tolled the appearance period until well beyond then. We disagree that the appearance period is a statute of limitation or repose subject to this emergency rule.

A. Legal Principles

In response to the COVID-19 pandemic, the Judicial Council adopted a series of emergency rules effective April 6, 2020. As initially adopted, Emergency rule 9 tolled "the statutes of limitation for civil causes of action ... from April 6, 2020, until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted."⁴

In response to practitioner comments expressing concern about the impact of this open-ended extension on land-use cases that typically have short statutes of limitations, the Judicial Council amended Emergency rule 9 to provide different tolling periods depending on the length of the underlying statute of limitations or repose. As amended, Emergency rule 9 reads:

"(a) Tolling statutes of limitations over 180 days "Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.

"(b) Tolling statutes of limitations of 180 days or less

"Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020."⁵

In addition to revising the substance of Emergency rule 9, the amendment also added an Advisory Committee Comment explaining the intent of the rule. This comment explains that the rule "is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action," which "includes special proceedings." The comment clarifies that the "rule also applies to statutes of limitations ... found in codes other than the Code of Civil Procedure, including ..., for example, the Family Code and Probate Code."

The Judicial Council explained the background of Emergency rule 9, and the reasons for amending it, in a Circulating Order. (See fn. 3, ante. )

We independently review Judicial Council emergency rules. ( In re M.P. (2020) 52 Cal.App.5th 1013, 1020, 267 Cal.Rptr.3d 106.)

B. Analysis

We will assume without deciding that a bail forfeiture proceeding is a civil cause of action or special proceeding within the meaning of Emergency rule 9. (See American Contractors, supra , 33 Cal.4th at p. 657, 16 Cal.Rptr.3d 76, 93 P.3d 1020 ["While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature."].) We nevertheless conclude that the appearance period during which a surety may seek relief from forfeiture is not a statute of limitations subject to tolling under the rule.

" ‘[A] statute of limitations normally sets the time within which proceedings must be commenced once a cause of action accrues.’ " ( McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 79, fn. 2, 105 Cal.Rptr.3d 378, 225 P.3d 516, italics added.) "A cause of action is simply the obligation sought to be enforced against the defendant." ( Turner v. Milstein (1951) 103 Cal.App.2d 651, 657, 230 P.2d 25 ; see CDF Firefighters v. Maldonado (2011) 200 Cal.App.4th 158, 165, 132 Cal.Rptr.3d 544 [same]; Hayes v. County of San Diego (2013) 57 Cal.4th 622, 630, 160 Cal.Rptr.3d 684, 305 P.3d 252 [" ‘[A] "cause of action" is comprised of a "primary right" of the plaintiff, a corresponding "primary duty" of the defendant, and a wrongful act by the defendant constituting a breach of that duty.’ "].)

Consistent with these general principles, the Judicial Council clearly and repeatedly expressed its intent that Emergency rule 9 applies only to initial pleadings that commence a civil cause of action or special proceeding. (See Advisory Committee Comment to Emergency rule 9 ["Emergency rule 9 is intended to apply broadly to toll any ...