Filed 4/29/22 P. v. Philadelphia Reinsurance Corp. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Stanislaus County. Shawn D. Bessey, Judge.

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

Thomas E. Boze, County Counsel, and Robert J. Taro, Assistant County Counsel, for Plaintiff and Respondent.

-ooOoo-

A surety appeals from a summary judgment entered on a bail bond and an order refusing to grant relief from its forfeiture, contending an emergency rule adopted by the Judicial Council in response to the COVID-19 pandemic tolled the appearance period for exonerating forfeited bail bonds and, therefore, the summary judgment was entered prematurely and is voidable. 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

On December 21, 2018, All-Pro Bail Bonds, acting as the agent for Philadelphia Reinsurance Corporation (collectively, Surety) posted a $50,000 bail bond for the release of a criminal defendant from custody. In March 2019, the defendant failed to make a court appearance and, as a result, the trial court order bail forfeited. Notice of forfeiture was mailed to Surety by the clerk on the day after the forfeiture.

In November 2019, the trial court partially granted Surety’s motion to extend the statutory forfeiture period pursuant to Penal Code section 1305.4 and extended the appearance period to March 30, 2020.

On March 25, 2020, Surety filed a second motion, requesting an extension of the remaining 42 days available under Penal Code section 1305.4. The motion was scheduled to be heard on April 20, 2020. County Counsel filed a notice of nonopposition on April 1, 2020. On April 6, 2020, the trial court, on its own motion, continued the hearing to June 18, 2020, due to the COVID-19 pandemic.

Based on an amendment effective on May 29, 2020, Emergency Rule 9(a) provided: “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.” An Advisory Committee Comment to Emergency Rule 9 stated it was “intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action. The term ‘civil causes of action’ includes special proceedings.”

On June 18, 2020, the trial court granted Surety’s motion to further extend time, ordering the time extended to July 31, 2020.

On October 28, 2020, summary judgment in the amount of $50,000 was entered against Surety on the bail bond. The same day, the clerk mailed the notice of entry of judgment and the summary judgment to Surety. On November 24, 2020, Surety filed a motion to set aside the summary judgment and to toll time on bail pursuant to Emergency Rule 9. After County Counsel filed an opposition and Surety filed a reply, the motion was heard on January 7, 2021. The court denied the motion, concluding Emergency Rule 9 did not toll the appearance period or the time for filing summary judgment on the forfeited bail bond. Later in January, Surety appealed.

II. DISCUSSION

A. Decisive Issue of Law

Surety’s opening brief asserts there are two questions presented in this appeal. First, “[d]oes California Emergency Rule of Court Rule 9, which tolls all statutes of limitations and repose on civil causes of action and special proceedings apply to bail forfeiture proceedings?” Second, “[w]as the summary judgment entered on November 24, 2020, premature and voidable because it was entered during the tolling period provided by California Emergency Rules of Court Rule 9?”[1] If the answer to the first question is “no,” the answer to the second question also will be “no.”

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

Two published decisions have addressed Surety’s legal issue of whether the tolling of statutes of limitation required by Emergency Rule 9 applied to bail bond forfeiture proceedings.

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 and an Advisory Committee Comment and 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.)

A published decision of the Appellate Division of the San Diego Superior Court reached the same conclusion. (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.) Thus, 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 need not repeat the analysis underlying that conclusion. (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.) Therefore, Emergency Rule 9 did not toll the appearance period because that period is not a statute of limitation or repose. Applying this legal conclusion to the facts of this case, 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, not void”].)

DISPOSITION

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

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

[1] This formulation of the question contains two errors. First, the summary judgment was entered on October 28, 2020, not November 24, 2020. Second, Emergency Rule 9’s tolling period lasted “from April 6, 2020, until October 1, 2020.” Thus, the summary judgment was entered after the tolling period, not during the tolling period.