People v. N. River Ins. Co.

48 Cal.App.5th 226

261 Cal.Rptr.3d 416

The PEOPLE, Plaintiff and Respondent,

v.The NORTH RIVER INSURANCE CO. et al., Defendants and Appellants.

B292411

Court of Appeal, Second District, Division 2, California.

Filed April 9, 2020

As Modified on Denial of Rehearing April 30, 2020

Jefferson T. Stamp, San Jose, for Defendants and Appellants.

Mary C. Wickham, County Counsel, Adrian G. Gragas, Assistant County Counsel, and Jessica C. Rivas, Deputy County Counsel, for Plaintiff and Respondent.

HOFFSTADT, J.

A trial court held a bail review hearing for a criminal defendant that, in compliance with the law in effect at the time, set bail at the amount prescribed by the county bail schedule. After the defendant obtained a bail bond but did not appear as ordered, the court forfeited the bond and, ultimately, entered summary judgment on the bond against the bond’s surety. Nearly two years after that judgment was entered, the surety moved to set aside the summary judgment under Code of Civil Procedure section 473, subdivision (d)¹ on the ground that the trial court’s failure to inquire into the defendant’s ability to pay when setting bail—as mandated by the later-decided case of In re Humphrey (2018) 19 Cal.App.5th 1006, 228 Cal.Rptr.3d 513 ( Humphrey ), review granted May 23, 2018, S247278—rendered the bond (and hence the summary judgment) "void." The trial court denied the motion to set aside. We affirm this ruling. The trial court acted within its discretion in denying relief. More to the point, the trial court would have abused its discretion had it awarded the relief the surety sought, and we publish to explain the many reasons why the surety’s argument must be rejected as a matter of law.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Issuance, forfeiture and judgment on bond

In June 2008, the People charged Sergio Musio Chavez Gonzalez² (defendant) in a felony complaint with the sale and transportation of more than a kilogram of drugs ( Health & Saf. Code, § 11352, subd. (a) ). The court issued an arrest warrant.

On June 26, 2015, defendant appeared in custody and the trial court arraigned defendant and set bail at $100,000 "per [the county bail] schedule.³

On July 1, 2015, the trial court conducted a bail review hearing. Defendant requested the court "consider lowering bail" or release him on his own recognizance, but the trial court denied those requests. Later that day, Bad Boys Bail Bonds, an agent of The North River Insurance Company (collectively, the surety), issued a $100,000 bail bond, which included defendant’s promise to appear for the next hearing on July 27, 2015.

Defendant did not appear on July 27, 2015.

The trial court ordered the bond forfeited in open court, and thereafter mailed a notice of forfeiture to the surety. After the surety was unable to return defendant to court within the statutory period as extended by the court, the trial court entered summary judgment on the bond and against the surety in the amount of $100,000 plus $370 in costs. Judgment was entered on August 10, 2016.

B. Humphrey

On January 25, 2018, the First District of the Court of Appeal decided Humphrey , supra , 19 Cal.App.5th 1006, 228 Cal.Rptr.3d 513. In that case, the court followed the county bail schedule and set bail at $600,000 (and, after a further hearing, at a reduced amount of $350,000) for a 63-year-old defendant who stole $5 in cash and a bottle of cologne from a neighbor in his apartment complex; the driving factor for the high bail amount was the defendant’s decades-old criminal history. ( Id. at pp. 1016-1017, 1021, 228 Cal.Rptr.3d 513.) It was undisputed that the defendant could not afford to post a bond in either amount and would, as a consequence, be detained. Drawing upon the thread of equal protection jurisprudence that precludes imprisonment of an indigent probationer for the failure to pay fines he has no ability to pay or, even with bona fide efforts, no ability to earn ( id. at pp. 1026-1028, 228 Cal.Rptr.3d 513, citing Bearden v. Georgia (1983) 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 ) and the thread of substantive due process jurisprudence that requires a "compelling" government interest to justify pretrial detention ( id. at pp. 1033-1035, 228 Cal.Rptr.3d 513, citing United States v. Salerno (1987) 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 ), Humphrey held that a court setting the amount of bail must "consider [a] defendant’s ability to pay and refrain from setting an amount so beyond the defendant’s means as to result in detention ." ( Id. , at p. 1037, 228 Cal.Rptr.3d 513, italics added.) Thus, Humphrey concluded, "a court may not order pretrial detention unless it finds ... [ (1) ] that the defendant has the financial ability but failed to pay the amount of bail the court finds reasonably necessary to ensure his or her appearance at future court proceedings; or [ (2) ] that the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to reasonably assure such appearance; or [ (3) ] that no less restrictive nonfinancial conditions of release would be sufficient to protect the victim and the community." ( Id. , at p. 1026, 228 Cal.Rptr.3d 513.)

Our Supreme Court granted review of Humphrey on May 23, 2018. ( In re Humphrey , 233 Cal.Rptr.3d 129, 417 P.3d 769 (2018).)

II. Procedural Background

In June 2018, the surety filed a motion to set aside the August 2016 summary judgment. Invoking section 473, subdivision (d), the surety argued that the summary judgment was "void" because the trial court’s "original [July 2015] order setting bail in the amount of $100,000 was unconstitutional" under Humphrey because the trial court had not inquired into defendant’s ability to pay.

After considering the People’s opposition and the surety’s reply, the trial court issued an eight-page order denying the motion to set aside. The court listed five reasons for denying the motion, four of which are pertinent on appeal:⁴ (1) the Supreme Court’s grant of review renders Humphrey persuasive (rather than precedential) authority, (2) Humphrey should not apply retroactively to bail settings that occurred before it was decided, (3) the surety lacked standing to assert any violation of defendant’s rights under Humphrey , and (4) any error in setting bail would not invalidate the bond or otherwise call for its exoneration.

The surety filed this timely appeal.

DISCUSSION

The surety argues that the trial court erred in denying its motion to set aside a void judgment under section 473, subdivision (d). Specifically, the surety argues that the summary judgment is void because the trial court’s failure to inquire into defendant’s ability to pay, as required by Humphrey , deprived the court of the power to detain defendant and thus deprived the surety of the power to constructively detain him on bail, such that the surety lacked any power to re-arrest defendant and must therefore be excused from any obligation under the bond.

Under section 473, subdivision (d), a trial court "may ... set aside any void judgment or order." ( § 473, subd. (d).) By its plain terms, this provision grants a trial court the discretion to set aside a judgment or order, but only if that judgment or order is "void." ( Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822, 179 Cal.Rptr.3d 96.) Voidness is a legal question we review de novo; the discretionary decision whether to set aside a void judgment or order is, as one would anticipate, reviewed solely for an abuse of that discretion. ( Ibid. )

The trial court did not err in denying the surety’s motion to set aside the summary judgment. To paraphrase (and thereby sully) the poet Elizabeth Barrett Browning, "How do [we reject thine argument]? Let [us] count the ways."

I. Untimeliness

First, the surety’s motion is untimely. "Once six months have elapsed since the entry of a judgment [or order], ‘a trial court may grant a motion to set aside [a] judgment [or order] as void only if the judgment [or order] is void on its face.’ [Citation.]"( Cruz v. Fagor America, Inc . (2007) 146 Cal.App.4th 488, 496 ; Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc . (2018) 23 Cal.App.5th 1013, 1023 [power to set aside void order is discretionary].) " ‘A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll’ " "or [the] court record without consideration of extrinsic evidence." ( Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441, 29 Cal.Rptr.2d 746, quoting Morgan v. Clapp (1929) 207 Cal. 221, 224, 277 P. 490 ; Pittman v. Beck Park Apartments, Ltd. (2018) 20 Cal.App.5th 1009, 1021, 230 Cal.Rptr.3d 113.)

The surety filed its motion to set aside the summary judgment as void more than 22 months after that judgment was entered. Further, that judgment is not "void on its face" because the alleged defect—that is, the trial court’s failure to comply with the as-yet-undecided Humphrey decision by not considering the defendant’s ability to pay when setting bail—is not apparent from the judgment roll or the court record without considering extrinsic evidence such as the Humphrey decision and the transcript from the bail setting hearing.

II. Voidness

Second, and even if we overlook the untimeliness of the surety’s motion, the summary judgment is not void.

A judgment is "void" only when the court entering that judgment "lack[ed] jurisdiction in [a] fundamental sense" due to the " ‘entire absence of power to hear or determine the case’ " resulting from the " ‘absence of authority over the subject matter or the parties.’ " ( People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660, 16 Cal.Rptr.3d 76, 93 P.3d 1020 ( American Contractors ), quoting Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287, 288, 109 P.2d 942 ( Abelleira ).) To be sure, a court that " ‘ "acts contrary to [its] authority" ’ " " ‘to give certain kinds of relief, or to act without the...