Los Angeles County v. Ranger Ins. Co.

Filed 10/30/06 Los Angeles County v. Ranger Ins. Co. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Larry P. Fidler, Judge. Affirmed.

Law Offices of Benjamin P. Wasserman and Benjamin P. Wasserman for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Syna N. Dennis, Principal Deputy County Counsel, for Plaintiff and Respondent.

_______________________________________

Ranger Insurance Company appeals from an order denying its motion to vacate summary judgment on a forfeited bail bond. Ranger contends the motion should have been granted because a timely request for extension was improperly rejected by a court clerk who mistakenly told Ranger that judgment had already been entered. We affirm.

BACKGROUND

Ranger, through its agent, Anyway Bail Bonds, posted a $100,000 bond to secure the release of Jose Maria Infante in Infante’s pending criminal matter. (People v. Infante (Super. Ct. L.A. County, No. BA233207).) Bail was forfeited when Infante failed to appear at a scheduled hearing. Ranger later secured a 90-day extension, to December 9, 2004, to seek vacation of the forfeiture. Ranger did not file a request for a second extension, and judgment and summary judgment against Ranger were filed on December 14, 2004.

In February 2005, Ranger moved to vacate the summary judgment. At the hearing on the motion, in addition to relying on declarations and points and authorities, Kevin Appelton testified in support of Ranger that he was a licensed bail agent with offices in Los Angeles. He prepared the motion for a 90-day extension that had been granted, and he also prepared a motion requesting a second extension, which was due for filing by December 9, 2004. Around that time, Appelton was out of California on business but had instructed his assistant, Lynda Lee, to file the motion. (Lee had worked for Appelton for five or six months at that point and was Appelton’s fiancée.) When Appelton returned to Los Angeles on December 13 or 14, Lee told him that the extension had not been accepted for filing. Appleton went to the clerk’s office on December 17 and inquired about filing the extension request. He was told that summary judgment had already been entered.

Lee testified that she went to the appropriate court clerk’s office on December 7, 2004, and handed the motion for extension to a deputy clerk for filing. The deputy clerk refused to accept it, informing Lee that the due date for the extension had passed and summary judgment had already been entered. Lee then took the motion back from the deputy clerk. She did not request that the motion be stamped “received” or that she be allowed to speak to the deputy clerk’s supervisor. Nor did Lee mention the incident to Appleton, with whom she had telephone conversations while he was away. Rather, Appleton first learned that the motion had not been filed when he returned to his office in Los Angeles and saw it on his desk.

Maria Rubio, the deputy clerk whom Lee claimed had refused her attempt to file the motion, testified by stipulation. “[Rubio] has worked for the office since ‘97. She’s been at the filing counter since ‘99. She did recognize Lynda Lee. She has no specific recollection of this case, and specifically she never recalls ever being presented with a document by Ms. Lee in [sic] refusing to file it.”

Ranger argued that Lee should be believed and that the action of the deputy clerk had made it impossible for Lee to file the motion for extension. The county argued that, assuming the document was improperly rejected by the clerk, Lee should have made greater efforts to get it filed. The court ruled as follows:

“Well, based upon the facts presented to the court, I will assume for the sake of argument that there was this remark from the clerk that it’s erroneously [sic] that there was a summary judgment. I am not going to file that. But that hardly ends the inquiry.

“Based on everything I have heard today, there was so much that wasn’t done. There is no impossibility here.

“First of all, with all due respect, the county . . . was not responsible for Ms. Lee’s inexperience. At the very least she should have talked to her employer and said you sent me to file this document, I have a problem. They won’t file it. What do I do?

“He is out of state. He is not out of the country. He is not out of the world. It’s easy to get ahold of him. Let alone that she should have asked to talk to a supervisor. She might not understand she can have a document stamped received not filed . . . which would have presented some written confirmation, but that’s not really important because based upon stipulations and the testimony, that’s not really going to be an issue.

“There was no impossibility. There had to be some follow-up. If there was a mistake made, it was easy to correct, . . . but nothing was done.

“Oh, okay. You can’t take the inexperience of a person who is trying to file a motion saying that made it impossible. If they had done something, we will not accept this under any circumstances. Leave. Don’t come back. We have told you this is it. Don’t show up at the window. That’s a different story.

“Here it could have easily been taken care of, and it wasn’t. So I don’t find the impossibility. At the worst a mistake was made that was correctable on the spot, if not within the filing period. And, therefore, the motion is denied.”

DISCUSSION

In People v. Meyers (1932) 215 Cal. 115, an Alameda County defendant out on bail was arrested on a San Francisco case and placed on probation in that case with orders that she be transferred to Oregon and not return to California. The defendant’s Alameda County bail was forfeited but later exonerated on the ground that the surety was prevented from gaining custody of the defendant. (Id. at pp. 116--117.) The People appealed. In rejecting the appeal and affirming the exoneration, the Supreme Court approved of the surety’s defense of impossibility (id. at p. 117), holding that “[t]he state, acting through its officers in one county, cannot hold [the surety] liable for failure to perform, when such performance was delayed, hindered and finally made, for all practical purposes, impossible, by the state acting through its officers in another county.” (Id. at pp. 119--120; see also People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791, 798 [when “a California fugitive admitted to bail [is] apprehended and held in custody in another state, [then] released as a result of errors committed solely by officials of the demanding county government and the surety has done all that is required of it under the terms of the bond--bail is exonerated”].)

Relying on the Meyers and Far West opinions, Ranger contends that its motion to vacate summary judgment should have been granted. Ranger’s reliance is misplaced.

Here, after assuming that Lee was erroneously told by the deputy clerk that summary judgment had already been entered, the trial court concluded there was no reason for Lee to have accepted this mistaken assessment at face value. We agree with the trial court’s conclusion. Having been employed by Appelton for several months, Lee surely knew, or at least should have known, that missing a deadline that would not run for another two days would obligate her company to pay the $100,000 bond. There was no excuse for Lee’s failure in those two days to make further inquiry of the deputy clerk, the deputy’s supervisor, or to call Appelton immediately to rectify the situation. While erroneous information from the deputy clerk may have created an impediment to filing the motion for extension, the trial court properly found that it did not make a timely filing impossible.

Ranger further argues that the trial court abused its discretion in failing to find that the late filing was excused under Code of Civil Procedure section 473, subdivision (b). But “[t]he relief from default provided by section 473 of the Code of Civil Procedure does not apply since ‘The obligations of bail are governed by the statute specially applicable thereto.’ [Citations.]” (People v. National Auto. & Cas. Co. (1966) 242 Cal.App.2d 150, 153.)

DISPOSITION

The order under review is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

I concur:

JACKSON, J.^*

I concur in the judgment only.

VOGEL, J.

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^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.