County> of Los
Angeles
v. Lexington Nat. Ins. Corp.

 

 

 

 

 

 

 

 

 

 

Filed 10/18/13 
County of Los
Angeles v. Lexington Nat. Ins. Corp. CA2/3

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
THREE

 

 

 
>

COUNTY OF LOS ANGELES,               Plaintiff and Respondent,               v.   LEXINGTON NATIONAL INSURANCE CORPORATION,               Defendant and Appellant.

B240244               (Los Angeles County             Super. Ct. No. SJ003703)

 

 

 

            APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Martin Gladstein, Temporary
Judge.  (Pursuant to Cal. Const.,
art. VI, § 21.)  Affirmed.

            E. Alan Nunez for Defendant and
Appellant.

            Office of the County Counsel, Ruben
Baeza, Jr., Assistant County Counsel and Joanne Nielsen, Principal Deputy
County Counsel for Plaintiff and Respondent.

 

_______________________________________

            Defendant
and appellant Lexington National Insurance Corporation (Lexington)
appeals from the summary judgment of
bail forfeiture entered in favor of plaintiff and respondent the County
of Los Angeles.  Lexington
contends the trial court erred in denying the surety’s motion for a second
extension of the 185-day period in which Lexington
could set aside the bail forfeiture.  We
disagree and affirm.

>FACTUAL
AND PROCEDURAL BACKGROUND

            On
March 6, 2011, Lexington
posted bail in the amount of $70,000 for the release of Francisco Javier
Camacho (Camacho), who had been charged with unlawful assault weapon
activity.  Camacho was required to appear
in court on April 4, 2011 for his arraignment. 
On April 4, 2011, Camacho came to court and spoke with his public
defender, but left before his case was called. 
The court ordered the bail bond forfeited and served the notice by mail
on Lexington on April 5, 2011. On October 3, 2011, Lexington filed a
motion to extend the 180‑day period within which Lexington had to return
Camacho to the court’s custody in order to obtain relief from forfeiture.  The County did not oppose the motion.  On October 20, 2011, the court granted
the motion, and extended the forfeiture period by 90 days.

            On
January 18, 2012, Lexington filed a second motion to extend the forfeiture
period.  The motion was supported by a
declaration by investigator Anthony R. Chiz, detailing his efforts to
locate and apprehend Camacho.  Chiz
stated that he had worked as a “fugitive recovery person” since 1994 and had
been involved in over 2,000 investigations and arrests.  After he was assigned this case on
July 12, 2011, he checked the police and court files, reviewed Camacho’s
employment history, and searched for addresses associated with Camacho.  He identified several addresses for Camacho
and ran “data search information on the addresses and their occupants.”  On October 20, 2011, Chiz and his “team” did
a “rolling-surveillance on [Camacho’s] mother’s new location” and “positively
identified the mother, but did not see [the] defendant.”  On November 15, 2011, Chiz visited Camacho’s
“place of work,” saw his “distinctive” “bright red” barber shop chair, and
concluded “[w]e know he is there.” 
Between October 25, 2011 and November 20, 2011, Chiz repeatedly
went to “defendant’s location” at “Moonbeam Ave[nue]” “to agitate the people
there, which are family members.” 
Camacho’s sister-in-law told Chiz that “the defendant was leaving to
visit family members, and would not be returning until after the holidays
(around the 25th of January)” and “said she would call us when he gets
there.”  Chiz noted that “[e]verything
she has told us is accurate” and that “she doesn’t like us coming to [the]
house and letting the neighbors [k]now that we are looking for a fugitive.”  Chiz concluded that this case was “very
difficult because the mother is protecting the defendant.”

            The
County did not oppose the motion.  The
trial court found that the declaration was “essentially the same declaration I
saw last time” and that “there [was] nothing in this declaration that indicates
there is any possibilities . . . that within an extended
period, the defendant could be brought into court.”  The court denied the motion for lack of good
cause and entered summary judgment. 
Lexington’s timely appeal followed.

>CONTENTIONS

            Lexington contends that the trial
court erred in denying its second motion to extend the 180-day forfeiture
period because Lexington provided sufficient evidence establishing good cause
for the extension.

>DISCUSSION

            Penal
Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 1305 provides that if, without sufficient excuse, a defendant fails to
appear at an arraignment, the court shall order a forfeiture of the bond.  The surety that posted the bond then has 180
days, plus five days for service of the notice of forfeiture by mail, to return
the defendant to custody and have the forfeiture set aside and the bond
exonerated.  (Section 1305, subd.
(c)(1).)  If the 180-day time period
expires without the forfeiture having been set aside, the court must enter summary
judgment against the bail surety. 
(Section 1306, subd. (a).)

            Section
1305.4 provides that the trial court may grant an extension of the 180‑day
time period for up to an additional 180 days upon a “showing of good
cause.”  (Section 1305.4.)  Good cause “means an explanation of what efforts [the surety]
made to locate [the defendant] during the initial 180 days, and why such
efforts were unsuccessful.”  (>People v. Ranger Ins. Co. (2000) 81
Cal.App.4th 676, 681.)  “The good cause showing under section 1305.4 is a low threshold for
the movant.  If the surety demonstrates
good cause by showing due diligence in the initial 180 days, a reasonable
likelihood of success of capturing the defendant in a subsequent 180 days, and
any other relevant circumstances, the court should grant the motion.”  (People
v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349,
1358.)

            A
denial of a surety’s motion for an extension of time pursuant to
section 1305.4 is reviewed for abuse of discretion.  (People
v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, 127.)  “The trial court can only be said to have
abused its discretion where its decision ‘ â€œ â€˜exceeds the bounds of
reason, all circumstances being considered. 
[Citation.]’ â€ â€™ â€ (People
v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.)

            Lexington
argues that the court abused its discretion in denying its second motion for an
extension because Lexington had established “good cause” within the meaning of
section 1305.4.  However, Lexington’s
motion relied entirely on Anthony R. Chiz’s declaration which
only demonstrated sporadic efforts to locate Camacho.  The only steps Chiz took to locate Camacho
after the court granted the initial extension of the forfeiture period were:  (1) conducting surveillance on Camacho’s
mother’s house on October 20, 2011; (2) visiting Camacho’s workplace on
November 15, 2011; and (3) going to the “defendant’s location” at Moonbeam
Avenue an unspecified number of times between October 25, 2011 and November 20,
2011 to talk with family members and neighbors there.  Chiz took no further action to locate Camacho
up until January 11, 2012, when he signed his declaration.href="#_ftn2" name="_ftnref2" title="">>[2]

            Even
assuming that Chiz demonstrated due diligence, there is no evidence of
a reasonable likelihood that Lexington could bring Camacho into custody in
another 90 days.  First, Chiz does
not explain why he believes that Moonbeam Avenue is “defendant’s
location.”  Second, although Lexington points
to Camacho’s sister‑in‑law’s representation that she would call
Chiz when Camacho returned, there is no evidence that the sister-in-law was
telling Chiz the truth.  Chiz’s statement
that “[e]verything” the sister-in-law “told us is accurate” is not supported by
any evidence showing that the sister-in-law was being truthful.  Furthermore, that the sister-in-law was
uncomfortable with Chiz talking to her neighbors does not necessarily lead to
the conclusion that she would cooperate to help apprehend Camacho.  In fact, she may have misinformed Chiz that
Camacho was “leaving” for over two months in order to persuade Chiz not to
bother her during that period of time.

            There
is also no evidence supporting Chiz’s conclusion that Camacho was present at
his workplace.  Chiz only stated that
Camacho’s “distinctive” chair was in the barber shop, however, this does not
lead to an inference that Camacho was still working there.  Furthermore, although Chiz identified
Camacho’s mother’s location, there is no evidence that Camacho maintained
contact with his mother, only Chiz’s unsupported conclusion that “the mother
[was] protecting the defendant.”  Lastly,
Lexington’s argument that the court ignored Chiz’s extensive experience in
fugitive recovery is also unavailing. 
Chiz’s expertise in tracking down fugitives does constitute evidence
that Chiz would be skilled at capturing Camacho, however, it is not sufficient
by itself, without evidence that Chiz had made any progress in locating
Camacho, to show a likelihood of success in capturing Camacho in a
subsequent 90 days.

            Although
“we strictly construe the relevant statutory
provisions in favor of the surety,” “[t]he
surety . . . bears the burden of establishing that its case
for relief falls within the statutory requirements.  [Citation.]” 
(People v. Ranger Ins. Co. (2006)> 139 Cal.App.4th 1562, 1564.)  As Lexington did not carry its burden of
showing good cause in support of its motion, the trial court did not abuse its
discretion in denying the motion to extend the forfeiture period.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

>DISPOSITION

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

 

            NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

 

 

                                                                                                                        CROSKEY,
J.

We Concur:

 

 

            KLEIN, P. J.

 

 

            KITCHING, J.