Filed 4/29/22 County of Fresno v. Financial Casualty & Surety CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Gary Orozco, Judge.

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

Daniel C. Cederborg, County Counsel, and Selma Harlow and Richard Burchett, Jr., Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

A surety appeals from a summary judgment entered on a bail bond, contending the summary judgment was entered prematurely and, therefore, is voidable. The surety argues the summary judgment was entered early because the appearance period for exonerating forfeited bail bonds was tolled by an emergency rule adopted by the Judicial Council in response to the COVID-19 pandemic. That rule tolled “the statutes of limitations and repose for civil causes of action.” (Cal. Rules of Court, Appendix I, Emergency rule 9 (Emergency Rule 9).) We conclude the appearance period is not a statute of limitations or repose and no tolling occurred.

We therefore affirm the summary judgment.

MEMORANDUM OPINION

I. FACTS AND PROCEEDINGS

In May 2018, a felony complaint was filed charging Mariano Joe Cabrera with two counts of criminal threats in violation of Penal Code section 422 and two counts of disobeying a court order in violation of section 166, subdivision (a)(4). At his arraignment, Cabrera pleaded not guilty to the charges and denied all enhancements and priors. The trial court set a preliminary hearing for June 5, 2018, remanded Cabrera to custody, and set his bail at $41,000.

On May 23, 2018, Absolute Bail Bonds, acting as the agent for Financial Casualty & Surety, Inc. (collectively, Surety) posted a $41,000 bail bond for the release of Cabrera from custody. Cabrera made several court appearances, but failed to appear at a June 24, 2019, settlement conference. As a result, the trial court ordered bail forfeited. Notice of forfeiture was mailed to Surety by the clerk on the day of the forfeiture.

In November 2019, Surety filed a motion to extend the statutory forfeiture period pursuant to Penal Code section 1305.4. On December 19, 2019, the trial court granted the motion and extended the period to June 16, 2020.

In June 2020, Surety attempted to file a motion to further extend the appearance period. On June 15, 2020, the court returned Surety’s motion because the civil filing fee was not included. On June 25, 2020, Surety successfully filed a motion to continue the extension period pursuant to Civil Code section 1511 based on difficulties in the investigation into the defendant’s location due to the COVID-19 pandemic. The motion asserted the “extension period should be continued because of the impact that the COVID-19 virus and the State’s orders and policies enacted because of the COVID-19 virus have had on the Surety’s business and the ability of its investigator to apprehend and surrender [Cabrera] in order to obtain an exoneration of [the bail bond].” The motion was supported by the investigator’s declaration, which described the difficulties and delays that the COVID-19 restrictions had caused in the investigation and apprehension of Cabrera. County Counsel filed an opposition to the motion, asserting there was no basis under California bail bond statutes for a further extension.

In July 2020, the trial court heard arguments on Surety’s motion to further extend the appearance period. The court stated, “I’m going to be denying the motion to continue the extension period, notwithstanding the emergency orders, I think what we have to do is look at the record of the operative dates. And I’ll just again make it as concise as I can. Had this motion been filed prior to the expiration of the last extension, I would have granted relief.”

On July 17, 2020, summary judgment in the amount of $41,000 plus postjudgment interest was entered against Surety on the bail bond. Notice of entry of judgment was mailed by the clerk the same day. In August 2020, Surety filed a notice of appeal stating it appealed from the order denying its motion to continue the appearance period pursuant to Civil Code section 1511 and from the subsequently entered summary judgment.

II. DISCUSSION

A. Decisive Issue of Law

Surety’s opening brief asserts there are two questions presented in this appeal. First, “[w]as the summary judgment entered on July 17, 2020 premature and voidable because it was entered during the tolling period provided by California Emergency Rules of Court Rule 9?” Second, “[d]id the trial court err in denying the motion to extend time pursuant to Civil Code section 1511 based on the timing of the filing when the motion was received and filed while the tolling of Emergency Rule 9 was in effect?” The answer to both questions will be “no,” if the tolling period established by Emergency Rule 9 does not apply to the appearance period.

As to the standard of appellate review, we agree with Surety’s opening brief that, “n this case, since there are no factual disputes and the issue is purely legal in nature, review is de novo.” (See [i]People v. International Fidelity Ins. Co. (2012) 204 Cal.App.4th 588, 592 [questions of law, such as statutory interpretation, are subject to independent review on appeal].)

B. Applicable Case Law

After the parties completed their briefing in this appeal, the foundational legal question of whether the tolling period for statutes of limitation set forth in Emergency Rule 9 applied to bail forfeiture proceedings was addressed in two published decisions.

In People v. Financial Casualty & Surety, Inc. (2021) 73 Cal.App.5th 33 (Financial Casualty 2021), the Fourth District analyzed the relevant text of Emergency Rule 9, which states: “ ‘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.’ ” (Financial Casualty 2021, at p. 39.) The court also considered “an Advisory Committee Comment explaining the intent of the rule.” (Ibid.) After setting forth its analysis, the court concluded:

“Viewed in proper context, it is thus apparent that the appearance period during which a surety may assert defenses in an existing forfeiture proceeding is not a pleading that commences a cause of action or special proceeding. Thus, the appearance period is not a statute of limitations subject to tolling under Emergency rule 9.” (Financial Casualty 2021, at p. 41.)

This conclusion also was reached in a published decision of the Appellate Division of the San Diego Superior Court. (See People v. Philadelphia Reinsurance Corp. (2021) 70 Cal.App.5th Supp. 10.) The court stated that “the Advisory Committee comment to the rule and the Judicial Council’s circulating order memorandum support the conclusion that Emergency Rule 9 does not extend the timelines set forth in the Penal Code sections governing bail bond forfeiture procedures.” (Id. at p. 18.) As a result, the court concluded: “Emergency Rule 9 did not toll the appearance period.” (Id. at p. 22.)

We agree with the published decisions to the extent that they conclude the appearance period is not a statute of limitation or repose and, therefore, the tolling set forth in Emergency Rule 9 does not apply. Accordingly, we reject Surety’s argument that the summary judgment was entered prematurely and, as a result, is voidable. (See generally People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 663 [the prematurely entered summary judgment was voidable].)

Because published decisions answer the legal question raised in this appeal, we need not say more. (Cal. Const., art. VI, § 14 [appellate decisions “shall be in writing with reasons stated”]; People v. Garcia (2002) 97 Cal.App.4th 847 [use of memorandum opinions]; see California Standards of Judicial Administration, Standard 8.1.)

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

* Before Detjen, Acting P.J., Smith, J. and DeSantos, J.