Filed 1/24/18 P. v. United States Fire Insurance Company CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

UNITED STATES FIRE INSURANCE COMPANY,

Defendant and Appellant.


G053813

(Super. Ct. No. 13NF3564)

O P I N I O N
Appeal from a judgment and postjudgment order of the Superior Court of Orange County, Scott A. Steiner, Judge. Dismissed in part and affirmed in part.
Law Office of John Rorabaugh, John M. Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant.
Leon J. Page, County Counsel, and Carolyn M. Khouzam, Deputy County Counsel, for Plaintiff and Respondent.
* * *


INTRODUCTION
The trial court denied the motion of defendant United States Fire Insurance Company (Appellant) to vacate forfeiture and exonerate bail under Penal Code section 1305, subdivision (f) (section 1305(f)). As a consequence, summary judgment against Appellant was entered pursuant to Penal Code section 1306, subdivision (a). Nearly six months later, Appellant brought a motion under Code of Civil Procedure section 473, subdivision (b) (section 473(b)), to set aside the summary judgment. After the trial court denied the section 473(b) motion, Appellant filed a notice of appeal from both the summary judgment and the postjudgment order denying the section 473(b) motion.
We conclude the notice of appeal was not timely as to the summary judgment and therefore dismiss that portion of the appeal. We also conclude the trial court did not err by denying Appellant’s motion under section 473(b) to set aside the summary judgment and therefore affirm the postjudgment order.
BACKGROUND LAW ON BAIL BONDS
A bail bond is in the nature of a contract between the government and the surety through which the surety guarantees that the defendant will appear under risk of forfeiture of the bond. (People v. Amwest Surety Ins. Co. (1991) 229 Cal.App.3d 351, 356.) “[T]he obligation assumed by the bail is absolute but for the defenses set forth in section 1305 of the Penal Code.” (People v. Stuyvesant Ins. Co. (1963) 216 Cal.App.2d 380, 382.)
Under Penal Code section 1305, when a defendant released on bail fails to appear as required without sufficient excuse, the court must declare the bond forfeited. (Id., subd. (a).) The surety thereafter has a 180 day “jurisdictional time limit” from the service of the notice of the forfeiture to surrender the defendant or bring a motion for relief from forfeiture under Penal Code section 1305. (People v. Ranger Ins. Co. (2002) 101 Cal.App.4th 605, 608; see Pen. Code, § 1305, subds. (c)(1), (d) & (f).) Relevant here is section 1305(f), which reads: “In all cases where a defendant is in custody beyond the jurisdiction of the court that ordered the bail forfeited, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release.”
Upon a showing of good cause, a surety may also move for and receive an extension of the forfeiture period by no more than 180 days (extended by five days if the notice of forfeiture was served by mail). (Pen. Code, §§ 1305, subd. (c)(1), 1305.4; see People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 39.) A trial court lacks jurisdiction to consider a motion to vacate forfeiture under section 1305(f) that is filed after the expiration of the 180 day forfeiture period or any extensions of it. (People v. North River Ins. Co. (2017) 18 Cal.App.5th 863, 871; People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 127, 138 139.)
Under Penal Code section 1306, subdivision (a), “[w]hen any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound.” Summary judgment must be entered within 90 days after the the expiration of the jurisdictional time limit. (Id., § 1306, subd. (c).)
FACTS AND PROCEDURAL HISTORY
In September 2014, Nuvia A. Yousef Bail Bonds (Bail Agent) posted bail bond U50-20506672 in the amount of $50,000 on behalf of Appellant to secure the release of Ahmad Nayef Abuteer from custody. On September 18, 2014, Abuteer failed to appear in court and the bail bond was declared forfeited. Notice of forfeiture was mailed on September 19, 2014.
On March 17, 2015, Bail Agent filed a motion for a 180 day extension of the forfeiture period pursuant to Penal Code section 1305.4. Based in part on Bail Agent’s representation that Abuteer was in Sacramento attending to a family emergency, Respondent did not oppose the extension request. The court granted the 1305.4 motion, thereby extending the forfeiture period such that it would expire on October 18, 2015, a Sunday.
After the forfeiture period expired, Bail Agent filed a motion to vacate forfeiture and exonerate bail under section 1305(f) (the Section 1305(f) Motion) which the court clerk stamped as having been filed on October 21, 2015. The trial court’s register of actions also reflects a filing date of October 21, 2015. A copy of the Section 1305(f) Motion was served on, and stamped as having been received by, the district attorney’s office on October 21, 2015.
On November 13, 2015, Respondent filed opposition to the Section 1305(f) Motion. Respondent opposed the Section 1305(f) Motion on the grounds that (1) the motion was untimely and (2) the requirements of Penal Code section 1305, subdivisions (e) and (f) had not been met. Bail Agent did not file a reply brief or declaration in response to Respondent’s opposition.
The Section 1305(f) Motion was heard on November 19, 2015. County Counsel Suzanne E. Shoai appeared on behalf of Respondent, and Maher Nesheiwat appeared on behalf of Bail Agent. The court denied the Section 1305(f) Motion on the ground the court lacked jurisdiction to rule on the motion because it was untimely. At the hearing, Nesheiwat did not address issue of timeliness of the Section 1305(f) Motion.
Because the forfeiture was not set aside, the trial court entered summary judgment on the bail bond, as required by Penal Code section 1306, on December 3, 2015. The trial court’s register of actions reflects that a certified copy of the summary judgment was mailed to Appellant and Bail Agent on December 4, 2015. On December 10, 2015, Respondent’s counsel served on Appellant a “Notice of Entry of Summary Judgment Upon Forfeiture of Bail Bond and Demand for Payment Thereof.”
On May 6, 2016, Appellant filed a motion to set aside the summary judgment pursuant to section 473(b) (the Section 473(b) Motion). In support of that motion, Appellant submitted a declaration from Nesheiwat, who declared he arrived at the courthouse at about 6:00 p.m. on Friday, October 16, 2015, and, because the courthouse was closed, he placed the original Section 1305(f) Motion in the “yellow filing box.” He declared, “[a] legal statement on the box verifies that all items placed in it are filed the next court date after delivery, which would have occurred on Monday, October 19, 2015.” Appellant argued that through no fault of its own the court clerk had erred in stamping the Section 1305(f) Motion has having been filed on October 21, 2015 rather than Monday, October 19, 2015.
In opposition to the Section 473(b) Motion, Respondent argued, among other things, that Appellant had not met the requirements for relief under section 473(b) because the motion had not been filed within a reasonable time and Appellant had not demonstrated mistake or excusable neglect. Respondent submitted a declaration from Shoai, who stated: “Though the Court indicated its intent to deny the [Section 1305(f)] Motion based on its untimeliness at the November 19, 2015 hearing, Mr. Nesheiwat never made any claim that he filed the Motion on or before October 18, 2015. He did not address the timeliness of the [Section 1305(f)] Motion at all at this hearing.”
The trial court denied Appellant’s Section 473(b) Motion and stated that Appellant had not overcome the presumption of Evidence Code section 664. Appellant filed a notice of appeal on July 21, 2016.
DISCUSSION
1. The Notice of Appeal Was Untimely
as to the Summary Judgment.
We start by clarifying the scope of the appeal and the issue presented. Appellant challenges both the order denying its Section 473(b) Motion and the summary judgment that was entered following the denial of Appellant’s Section 1305(f) Motion. The notice of appeal states that Appellant is appealing from the order denying the Section 473(b) Motion and from “the judgement [sic] entered herein.”
An order on a motion to vacate or set aside a bail bond forfeiture is appealable (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195), as is a judgment (Code Civ. Proc., § 904.1, subd. (a)(1)). The trial court denied Appellant’s Section 1305(f) Motion on November 19, 2015 without directing the preparation of a written order. Notice of entry of summary judgment was served on December 10, and filed on December 14, 2015.
Appellant had 60 days from December 10, 2015 in which to file a notice of appeal from the summary judgment. (Cal. Rules of Court, rule 8.104(a)(1)(B).) The notice of appeal was not filed, however, until July 21, 2016, over seven months later. “The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal.” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) We therefore lack jurisdiction over the appeal from the summary judgment. The only matter before us is the order denying Appellant’s Section 473(b) Motion.
II. The Trial Court Did Not Err by Denying Appellant’s Section 473(b) Motion.
Section 473(b) grants the trial court authority “upon any terms as may be just,” to “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” An application for relief under section 473(b) must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.)
A trial court’s determination of a motion to set aside a judgment under section 473(b) will not be disturbed on appeal “‘absent a clear showing of abuse.’” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) Under this standard, the trial court’s factual findings are entitled to deference. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) “The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.” (In re Marriage of Eben King & King (2000) 80 Cal.App.4th 92, 118.) Thus, the reviewing court must accept any reasonable inference deduced by the trial court. (Ibid.)
The trial court here acted well within its discretion. The ground for relief asserted by Appellant was that, through no fault of Bail Agent, the court clerk erred by stamping the Section 1305(f) Motion as having been filed on October 21, 2015. We shall assume the asserted error by the court clerk might, if proven, constitute “mistake, inadvertence, surprise, or excusable neglect” by Appellant sufficient to support relief under section 473(b). Substantial evidence supported findings that the Section 1305(f) Motion was filed on October 21, 2015 and that the court clerk correctly stamped the motion as having been filed on that date. Under Evidence Code section 664, “[i]t is presumed that official duty has been regularly performed.” A superior court clerk must endorse on each paper filed with the court the day, month, and year the paper is filed (Gov. Code, § 69846.5), and filing has been interpreted to mean the day the paper is delivered to the clerk during business hours (Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1273). Accordingly, under Evidence Code section 664, a presumption arose in this case that the court clerk correctly stamped the Section 1305(f) Motion as having been delivered to the court during business hours on October 21, 2015. The trial court expressly found that Appellant did not overcome that presumption.
Nesheiwat stated in his declaration that he had placed the Section 1305(f) Motion in the after hours drop box on October 16. However, we must accept the trial court’s determination of the credibility of witnesses presenting testimony by declaration. (United Health Centers of San Joaquin Valley, Inc. v. Superior Court (2014) 229 Cal.App.4th 63, 74; Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.) The trial court could, and apparently did, disbelieve Nesheiwat, reject the assertions made in his declaration, and find the file stamped date on the Section 1305(f) Motion was accurate.
The final day on which Appellant could have filed the Section 1305(f) Motion was October 19, 2015. Because, as the trial court found, the Section 1305(f) Motion was not filed on or before that date, the trial court had no jurisdiction to consider that motion. (People v. North River Ins. Co., supra, 18 Cal.App.5th at p. 871.) Appellant therefore was not entitled to relief under section 473(b).
In addition, the Section 473(b) Motion was not brought within a reasonable time. We infer the trial court made all implied findings necessary to support its order and determine whether those implied findings are supported by substantial evidence. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1046, fn. 4; Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263; Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739.) We therefore infer the trial court made an implied finding that Appellant’s Section 473(b) Motion was not brought within a reasonable time.
That implied finding was supported by substantial evidence. Respondent raised the issue of the timeliness of the Section 1305(f) Motion in its written opposition. Appellant did not file a reply in support of its motion. In opposition to Appellant’s Section 473(b) Motion, Respondent submitted a declaration from counsel stating that, at the hearing on the Section 1305(f) Motion, the trial court indicated its intent to deny the motion on the ground it was filed late and Nesheiwat never addressed the issue of timeliness. Thus, Appellant knew as of November 2015 that timeliness of the Section 1305(f) Motion was an issue, but delayed nearly six months before bringing the Section 473(b) Motion addressing that issue and submitting Nesheiwat’s declaration.
DISPOSITION
The appeal from the summary judgment is dismissed. The postjudgment order denying the Section 473(b) Motion is affirmed. Respondent shall recover costs on appeal.



FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.