County of Los Angeles v. Lincoln General Ins.




Filed 3/2/11 County of Los Angeles v. Lincoln General Ins. CA2/2





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. LINCOLN GENERAL INSURANCE COMPANY, Defendant and Appellant.

No. B222842 (Los Angeles County Super. Ct. SJ003467)

APPEAL from a judgment of the Superior Court of Los Angeles County. Terry A. Bork, Judge. Affirmed.

Robert Tomlin White and Toni L. Martinson for Defendant and Appellant.

Ralph L. Rosato, Assistant County Counsel and Takin Khorram, Deputy County Counsel for Plaintiff and Respondent.



Aladdin Bail Bonds as agent for Lincoln General Insurance Company (appellant) appeals from a summary judgment entered after the trial court denied a second extension of the 185-day period during which appellant could set aside forfeiture of the underlying bail bond, issued to secure the release of criminal defendant Pablo Figueroa (Figueroa). Appellant argues that the trial court abused its discretion by denying its motion to extend the time to locate and return Figueroa to custody. We find that no abuse of discretion occurred, and therefore affirm.
STATEMENT OF THE CASE AND FACTS
Appellant posted bond number LG25654246 in the amount of $20,000 to secure Figueroa’s release. On May 8, 2009, Figueroa failed to appear in court and the bond was forfeited. The notice of forfeiture was mailed on May 11, 2009.
Pursuant to Penal Code section 1305, appellant had 185 days to seek to have the order of forfeiture vacated and the bond exonerated on the ground that the defendant had appeared either voluntarily or in custody.^[1]
1. Appellant’s first motion and accompanying declarations
On November 3, 2009, appellant timely filed a motion to extend the 185-day period pursuant to section 1305.4.
In support of its first request for an extension of time pursuant to section 1305.4, appellant filed two investigator declarations. Danielle Velazquez was initially assigned to the case as a pre-investigator. She received the file on May 14, 2009. Velazquez confirmed that the warrant was still active and that Figueroa was not in custody in Los Angeles County or the surrounding counties. Velazquez then called the home telephone number listed on the bail application for Figueroa. A female answered and advised her that she had the wrong number. When Velazquez attempted to call one indemnitor, Elisa Edwards, a recorded message advised her that the number was non-working. She then contacted the indemnitor’s mother, who advised that she did not have contact with the indemnitor or Figueroa, but that she believed they lived in the Compton area. Velazquez also attempted to contact three references, but her efforts were fruitless. On June 2, 2009, the case was referred to a fugitive recovery agent to continue with the investigation.
On June 11, 2009, fugitive recovery agent Michael Preece (Preece) was assigned the case. He conducted a database search to try to locate a new address or any other information regarding Figueroa. After trying to contact the indemnitors and references, on July 14, 2009, he traveled to Figueroa’s listed address in Long Beach. No one responded to his knocking on the door, and none of the neighbors claimed to know Figueroa. Preece then spoke to the property manager, who advised that Figueroa and a female were removed from the complex about a year before for unpaid rent. He had no information regarding Figueroa’s current location.
On July 29, 2009, Preece attempted to locate Figueroa at an address that he obtained through a database search. Preece was informed by a tenant that he recognized Figueroa, but that Figueroa had moved two to three years ago. The tenant had no further information about Figueroa.
Preece attempted to contact reference Brandy Edwards, the cousin of indemnitor Elisa Edwards. He located an address for Brandy Edwards in Long Beach. On August 21, 2009, he went to that location, and was informed by the property manager that Brandy Edwards had moved several months before and did not leave a forwarding address.
On August 31, 2009, Preece located a possible address for indemnitor Eloy Chavez, Jr. (Junior) in Long Beach. He went to the address on September 9, 2009. At that time, he made contact with a Mrs. Osborne, who stated that she had a daughter named Amanda who had moved out several months ago with Junior. She further advised that they were living on the street and her daughter had a drug problem. Mrs. Osborne believed they were living in Long Beach, possibly at the Princess Inn. She believed that members of Junior’s family lived at the Princess Inn, including his aunt, Lisa, and his mother, Linda. She also provided a description of Junior, who goes by the name “Rocky” and travels by skateboard.
Preece went to the Princess Inn in Long Beach and conducted surveillance. He returned on September 10, 2009, and spoke with the manager. The manager did not have any information regarding Figueroa or any of the Chavez family. Preece also spoke to several tenants, but they had no information.
On September 25, 2009, Preece met with Mrs. Osborne again. She was very surprised that Junior and her daughter were not at the hotel. She advised that Junior had obtained construction work for a contractor in Long Beach by the name of Terry Colwell Construction. Preece traveled to Colwell Construction on October 6, 2009. He received Terry Colwell’s telephone number and left a message. Colwell confirmed that “Rocky” worked for him three days a week, but stated that Junior no longer associates with Figueroa. Colwell also advised that Amanda is friends with Figueroa’s girlfriend, Elisa Edwards. Colwell said that he knows Figueroa and sees him in the neighborhood riding a mountain bike. He believed that Figueroa and his girlfriend still resided somewhere in the Long Beach area. On October 22, 2009, Colwell informed Preece that Junior would help to locate Figueroa but that he did not want it known that he was helping.
Preece included all of this information in his declaration submitted to the trial court in support of the first motion to extend the appearance pursuant to section 1305.4. On December 4, 2009, the court granted appellant’s motion, extending the period 60 days to February 2, 2010.
2. Appellant’s second motion and accompanying declaration
On January 28, 2010, appellant filed another request for an extension of time. Appellant’s second motion for an extension was also supported by a declaration from Preece.
After submitting the first declaration, Preece had attempted to locate reference Brandy Edwards at an address in Long Beach. Neighbors advised him that she had moved. Dawn, who lived in one of the units, confirmed that Brandy Edwards is Elisa Edwards’s cousin. She believed that Figueroa was married to Brandy Edwards and was currently residing in the Compton or San Pedro area. She thought that her brother, Eloy Chavez, Sr. (Senior), could provide the address.
On November 4, 2009, Preece returned to the address and spoke with Senior who told him that he knew Figueroa and the location where Figueroa purchased drugs. Preece traveled to the San Pedro address Senior provided, but no one was home and the neighbors denied knowing Figueroa. Dawn offered to have Senior accompany Preece to the San Pedro address, and also offered to introduce Preece to Linda, Senior’s sister.
Preece met with Dawn and Linda again on November 14, 2009. Linda stated that she believed Figueroa was staying with friends in Compton. Senior accompanied Preece to San Pedro, and pointed out an apartment complex where Figueroa “hangs out.” Preece conducted surveillance there, and also interviewed neighbors, who denied knowing Figueroa.
Preece also followed up on a lead for a possible contact of Figueroa’s, Justin (aka “Whisper”. Preece was unable to make contact with this individual.
On January 25, 2010, Preece met with Linda. She advised that Figueroa was in Baltimore, Maryland. She also provided Preece with Figueroa’s mother’s address in the Bronx, New York. She stated that Figueroa was planning on picking up a check at his mother’s home on February 1, 2010. Preece arranged to have investigators make contact with Figueroa at the New York residence and to check on the Baltimore address. Preece stated that he was confident that Figueroa would be returned to the court’s jurisdiction if a second extension of time was granted.
No attorney made an appearance on the scheduled hearing date of February 2, 2010, so the court continued the hearing to February 23, 2010. On February 23, 2010, the court denied any further extensions of the appearance period, and on February 26, 2010, the trial court entered summary judgment on the bond. On March 5, 2010, appellant filed a timely notice of appeal.
DISCUSSION
I. Standard of review
The denial of a motion to extend time pursuant to section 1305.4 is reviewed for an abuse of discretion. (County of Los Angeles v. Fairmont Specialty Group (2008) 164 Cal.App.4th 1018, 1028 (Fairmont).) Under this standard, we analyze the court’s decision to determine whether the court clearly abused its discretion. We are obligated to keep in mind that such abuse occurs only when the court’s decision exceeds the bounds of reason. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679-680 (Ranger).) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)
II. Principles governing motion for extension of time under section 1305.4
After a bond is forfeited, the surety then has 185 days to seek relief from forfeiture. This is known as the “appearance period.” (§ 1305, subds. (b)-(i); People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 658.) If the surety is not able to return the defendant to custody within the initial appearance period, the surety may move for an extension of the appearance period pursuant to section 1305.4.
An extension of time under section 1305.4 is not automatic. The surety has to earn additional time by making a showing of good cause. (Fairmont, supra, 164 Cal.App.4th at p. 1027.) “[E]stablishing ‘good cause’ within the meaning of section 1305.4 requires (1) an explanation of what efforts the surety made to locate the defendant during the 180 days, and (2) why such efforts were unsuccessful.” (People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, 127 (Alistar), fn. omitted.)
However, the surety is not entitled to an extension simply because it has “‘exerted some effort.’” (Fairmont, supra, 164 Cal.App.4th at p. 1027.) The inquiry “‘must be prospective as well as retrospective.’” In addition to providing a record of diligent attempts to locate and capture the defendant, the surety must show that a further extension of time will be productive. (Ibid.)
Appellant emphasizes that the object of bail is to “‘insure the attendance of the accused and his obedience to the orders and judgment of the court.’” Accordingly, “‘there should be no element of revenue to the state nor punishment to the surety.’” (Alistar, supra, 115 Cal.App.4th at p. 129.) Given these policy considerations, a court “‘ should draw all inferences in favor of the surety. [Citation.] 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 . . . the court should grant the motion.’ [Citation.]” (Fairmont, supra, 164 Cal.App.4th at pp. 1027-1028.)
III. The trial court did not abuse its discretion by denying appellant’s second motion
As explained above, the trial court’s job was to analyze appellant’s showing of good cause for a second extension of time to locate Figueroa. The court’s decision had to be retrospective as well as prospective. In other words, in addition to analyzing appellant’s due diligence during the previous time period, the court was required to consider whether a further extension of time would be productive. As set forth in People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1357, “[e]fforts by a surety during the first 180 days might not always translate into good cause for an extension if it is unclear that a defendant will likely be captured given more time.” The relevant question is whether the surety has shown “a reasonable likelihood” that the surety would be able to locate and capture the defendant if granted more time. (Ibid.)
Preliminarily, we note that the trial court was reluctant to grant the first extension. At the hearing on December 4, 2009, the court initially stated its intention to deny the motion. The court stated, “it is a very low bar I agree with you, but I think very little has been done in this case.” Despite its lack of enthusiasm for appellant’s efforts during the initial 180-day period, the court allowed a 60-day extension.
At the hearing on February 23, 2010, the court noted that appellant had not appeared for the hearing calendared for February 2, 2010: “I set it for February 2nd, 2010. And you filed your paperwork on January 28th with the clerk’s office, but then there was no appearances on the February 2nd date.” At that time, the court found that there was no further information and denied a further extension of time. However, the court indicated that “having reviewed this paperwork, I would, in fact, have made the same ruling.”
At the time of the hearing on February 23, 2010, appellant’s counsel had no further information as to appellant’s efforts to locate Figueroa in Maryland or New York. Despite appellant’s argument that “good cause has been met,” the court indicated that its previous ruling denying the extension would stand.
We find no abuse of discretion in the trial court’s ruling. Appellant had over 240 days to locate Figueroa. The facts set forth in Preece’s declaration show that he followed lead after lead with no success for many months. The recent information regarding Figueroa’s possible presence in two different states across the country was inconclusive, and provided the court with very little assurance that he would be placed in custody in the near future. (See, e.g., Ranger, supra, 81 Cal.App.4th at p. 681 [“the supposition that a defendant is in Mexico gives no assurance that such defendant might be placed in custody”]; see also Alistar, supra, 115 Cal.App.4th at p. 128 [distinguishing Ranger because the investigator had stated that he “believed defendant was still in the area”].) There was no error in the trial court’s implicit determination that an additional extension would not be productive.
Appellant cites Alistar, supra, 115 Cal.App.4th 122, as support for its argument that the trial court’s denial of its motion was an abuse of discretion. Alistar is distinguishable because it involved a denial of the surety’s first motion to extend the appearance period. In contrast, this was appellant’s second motion to extend the appearance period. Appellant had already received one extension, which proved fruitless. In addition, unlike the surety in Alistar, appellant did not show a reasonable likelihood that it could apprehend Figueroa and return him to custody.
Under the circumstances, we find that there was no clear abuse of discretion on the part of the trial court in rendering its decision.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


________________________, J.
CHAVEZ
We concur:



_________________________, Acting P. J.
DOI TODD



_________________________, J.
ASHMANN-GERST



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