Filed 8/24/20 P. v. Lexington National Ins. Corp. CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN


 THE PEOPLE,                                                  B294515

           Plaintiff and Respondent,                          (Los Angeles County
                                                              Super. Ct. No. SJ4508)
           v.

 LEXINGTON NATIONAL
 INSURANCE CORPORATION,

           Defendant and Appellant.


      APPEAL from an order of the Superior Court of
Los Angeles County, Maame Ewusi-Mensah Frimpong, Judge.
Affirmed.
      Law Offices of Brendan Pegg and Brendan Pegg for
Defendant and Appellant.
      Mary C. Wickham, County Counsel, Adrian G. Gragas,
Assistant County Counsel, and David D. Lee, Deputy County
Counsel, for Plaintiff and Respondent.
                ________________________________
       Lexington National Insurance Corporation appeals the trial
court’s order denying its motion to vacate summary judgment
and to exonerate a bail bond. Lexington contends the judgment
is void because the superior court had previously exonerated the
bond and, alternatively, because the judgment at issue had been
superseded by a later judgment. We affirm.1
      FACTUAL AND PROCEDURAL BACKGROUND
        The Bond and Forfeiture
       On November 12, 2016 Lexington posted a $235,000 bail
bond for the release of Monica Brown. On November 18, 2016
Brown failed to appear at a scheduled hearing, and the court
ordered bail forfeited.
       On November 23, 2016 the clerk of the court mailed
Lexington the notice of forfeiture, advising the contractual
obligation to pay the bond would become absolute on the
186th day following the date of the mailing of the notice unless
forfeiture was set aside and the bond reinstated.
       On June 23, 2017 the court granted Lexington’s request for
an extension of the appearance period to December 20, 2017.
        The Motion To Vacate Forfeiture
       On December 20, 2017 Lexington moved to vacate
forfeiture. The hearing on the motion was held on January 12,
2018. The parties appeared, and the hearing was continued to
February 23, 2018. However, the initial minute order for the


1     An order denying a motion to set aside a summary
judgment entered against a surety is an appealable order.
(County of Los Angeles v. Financial Casualty & Surety Inc. (2018)
5 Cal.5th 309, 314.)




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January 12, 2018 hearing stated the court had granted
Lexington’s motion and exonerated the bond. Subsequently, a
minute order was entered that replaced the initial order and
corrected it nunc pro tunc to state the hearing on the motion had
been continued.2
      On January 31, 2018 the People filed an opposition to
Lexington’s motion. On February 20, 2018 a stipulation was
entered to continue the February 23, 2018 hearing to a later date.
The parties appeared on February 23, 2018; and, pursuant to the
stipulation, the hearing was continued to March 9, 2018.
      On March 5, 2018 Lexington filed a reply in support of its
motion, and on March 7, 2018 the People filed a surreply.
      The parties appeared on March 9, 2018 at which time the
court denied the motion to vacate forfeiture.
      Despite the denial of the motion to vacate forfeiture, on
March 13, 2018 the clerk of the court mailed a certificate of
discharge to Lexington stating the bond had been exonerated on
January 12, 2018.
         The Entry of Summary Judgment
      On April 5, 2018 the superior court signed a form judgment
in the amount of $235,000 in favor of the People of the State of
California against Lexington. The judgment does not indicate
the date on which it was entered.
      On April 6, 2018 the clerk of the court mailed to Lexington
a notice of entry of judgment, which stated judgment had been
entered in the case on April 5, 2018. In addition to Lexington,


2     The record does not reflect the date the corrected minute
order was entered; it appears to have been between March 13,
2018 and April 2, 2018.




                                3
the notice was erroneously mailed to the wrong bail agent. On
May 4, 2018 the clerk of the court entered a minute order stating,
“Due to clerical error, amended notice of entry of summary
judgment was sent to all involved parties. Notice [had been] sent
to [the incorrect bail agent]. Correction has been made.” The
corresponding notice had the word “Amended” handwritten in the
body of the notice and stated judgment had been entered on
April 24, 2018. The notice was otherwise identical to the
previous notice: It stated it had been filed and entered on
April 5, 2018 and mailed on April 6, 2018.
       On June 22, 2018 the clerk mailed another notice of entry
of judgment to Lexington. This notice was captioned “Amended
Clerks Notice of Entry of Judgment on Forfeited Bond and
Demand for Payment Reflecting the Correct Judgment Date of
04/05/18.” The notice stated it had been filed and entered on
April 5, 2018 and mailed on June 22, 2018. It listed April 5, 2018
as the “Amended Date Judgment Entered.” The docket does not
contain a corresponding entry for mailing of this amended notice.
         Lexington’s Motion To Vacate Summary Judgment and
         for Exoneration of Bail
     On August 17, 2018 Lexington moved to vacate summary
judgment and exonerate the bail bond. Lexington argued the
January 12, 2018 minute order stating the bond had been
exonerated was binding despite the nunc pro tunc correction.
Accordingly, it argued, the court could not have entered summary
judgment on a previously exonerated bond. Lexington also
argued the first amended notice of entry of judgment indicated a
judgment had been entered on April 24, 2018, which superseded
the April 5, 2018 judgment. Because the later judgment had




                                4
been “lost, misplaced, or found not to exist,” it could not be
enforced.
       The People opposed the motion, asserting the January 12,
2018 exoneration of bond and the incorrect notices of entry were
clerical errors, which the superior court was entitled to correct at
a later date. Along with its motion the People submitted a copy
of a form the People’s counsel declared he had retrieved from the
file for this case kept in the bail bond clerk’s office. The form is
titled “Case Action Summary (Bond Motion Calendar).” The form
indicates the case was called on January 12, 2018; and it contains
the handwritten notation, “cont’d to 2/23/18 [¶] notice waived.”
       At a hearing on October 19, 2018 the trial court denied
Lexington’s motion.
                          DISCUSSION
      1. Governing Law and Standard of Review
       A bail bond “‘“is a contract between the surety and the
government whereby the surety acts as a guarantor of the
defendant’s appearance in court under the risk of forfeiture of the
bond.”’” (People v. Financial Casualty & Surety, Inc. (2016)
2 Cal.5th 35, 42.) When a person for whom a bail bond has been
posted and against whom a criminal complaint has been filed
fails without sufficient excuse to appear as required, the court
must declare the bail forfeited. (Pen. Code, § 1305, subd. (a);3
see County of Los Angeles v. Financial Casualty & Surety, Inc.
(2018) 5 Cal.5th 309, 312; People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 657.)



3     Statutory references are to this code.




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       Once forfeiture is declared, the surety that posted the bond
has a period of 180 days (plus five days for mailing) after the
clerk of the court mails a notice of forfeiture to move to vacate
forfeiture and exonerate the bond. (§ 1305, subd. (c)(1); People v.
American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657.)
       Upon a showing of good cause, the court may extend this
appearance period by no more than 180 days from the date the
trial court orders the extension. (§ 1305.4; People v. Financial
Casualty & Surety, Inc., supra, 2 Cal.5th at p. 44.) If the
forfeiture has not been set aside by the end of the appearance
period, inclusive of any extension, “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.” (§ 1306, subd. (a).)
       The superior court’s order granting or denying a motion to
vacate the forfeiture of a bail bond is ordinarily reviewed for an
abuse of discretion. (People v. The North River Ins. Co. (2018)
31 Cal.App.5th 797, 804.) When there are factual disputes, the
trial court’s findings of fact will be upheld under the abuse of
discretion standard when those findings are supported by
substantial evidence. (People v. Accredited Surety Casualty Co.
(2014) 230 Cal.App.4th 548, 555.) When the facts are undisputed
and the matter raised is a question of statutory construction, our
review is de novo. (County of Los Angeles v. Financial Casualty
& Surety, Inc., supra, 5 Cal.5th at p. 314.) We must strictly
construe the applicable forfeiture statutes in favor of the surety
to avoid the “harsh results” of forfeiture. (People v. International
Fidelity Ins. Co. (2018) 20 Cal.App.5th 345, 354; The North River
Ins. Co., at p. 804.)




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      2. The Court Did Not Err by Denying Lexington’s Motion
         To Set Aside the Summary Judgment
       Lexington argues on appeal, as it did in the trial court, that
the court was bound by the January 12, 2018 minute order and,
alternatively, that the amended notice of entry of judgment
reflected an April 24, 2018 order, which necessarily superseded
the April 5, 2018 order. Both arguments are based on the
premise the January 12 minute order and amended notice were
judicial errors that must be enforced rather than clerical errors
capable of correction.
       A court has the inherent power, “regardless of lapse of
time, to correct clerical errors whether made by the court, clerk or
counsel so that its records will conform to and speak the truth.”
(Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 506; accord,
People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66,
77-78; In re Marriage of Kaufman (1980) 101 Cal.App.3d 147,
151.) “While a court has power to set aside judgments and orders
inadvertently made which are not actually the result of the
exercise of judgment, it has no power, having once made its
decision after regular submission, to set aside or amend judicial
error except under appropriate statutory procedure.” (Bastajian
v. Brown (1941) 19 Cal.2d 209, 214; accord, Bell v. Farmers Ins.
Exchange (2006) 135 Cal.App.4th 1138, 1144 [“It is elementary
that ‘[a] court can always correct a clerical, as distinguished from
a judicial error which appears on the face of a decree by a
nunc pro tunc order. [Citation.] It cannot, however, change an
order which has become final even though made in error, if in fact
the order made was that intended to be made’”].)
       “The test which distinguishes clerical error from possible
judicial error is simply whether the challenged portion of the




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judgment was entered inadvertently (which is clerical error)
versus advertently (which might be judicial error, but is not
clerical error). [Citation.] Unless the challenged portion of the
judgment was entered inadvertently, it cannot be changed post
judgment under the guise of correction of clerical error.” (Tokio
Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999)
75 Cal.App.4th 110, 117; see also Bowden v. Green (1982)
128 Cal.App.3d 65, 71 [“[a] clerical error in a judgment is an
inadvertent one made by the court which cannot reasonably be
attributed to the exercise of judicial consideration or discretion”].)
Accordingly, error is clerical “[w]hen a signed judgment does not
reflect the express judicial intention of the court.” (In re
Marriage of Kaufman, supra, 101 Cal.App.3d at p. 151; see also
Hamilton v. Laine (1997) 57 Cal.App.4th 885, 890 [“‘[t]he
question presented to the court on a hearing of a motion for a
nunc pro tunc order is: What order was in fact made at the time
by the trial judge?’”].)
       Lexington cites nothing in the record to support its
contention the January 12, 2018 exoneration of bond was an
exercise of judicial discretion. Nor has it offered any legal basis
upon which the bond could have been exonerated. Further,
Lexington, represented by counsel at the January 12, 2018
hearing, does not dispute the matter was simply continued
during that hearing. Lexington, in fact, admitted as much in its
motion to vacate summary judgment; and its counsel stated
during the hearing that his “reaction was to assume [the
exoneration of bail] was a mistake.” Regardless, Lexington
argues it is entitled to the presumption the minute order of
January 12, 2018 is correct and, quoting People v. Surety Ins. Co.




                                  8
(1973) 34 Cal.App.3d 444, 447, asserts a “surety should be able to
rely on the entries in the clerk’s minutes.”
       Lexington is correct that “the general rule is that, faced
with a silent record, an appellate court will presume that the
trial court performed its duty and acted in the lawful exercise of
its jurisdiction.” (People v. Allegheny Casualty Co. (2007)
41 Cal.4th 704, 715.) Here, however, the record is not silent.
Between entry of the initial January 12, 2018 minute order
purportedly exonerating the bond and the time Lexington states
it learned of the purported exoneration on March 12, 2018, the
parties filed multiple briefs, including Lexington’s reply brief,
filed a stipulation to continue a hearing and appeared twice
before the same judge who had purportedly entered the
exoneration.
       This record is inconsistent with an inference the
exoneration in the initial January 12, 2018 minute order was the
product of express judicial intention. Had the court purposefully
exonerated the bond, it would be nonsensical for it to continue to
receive briefing, hold multiple hearings and ultimately contradict
itself by denying the requested relief. This conclusion is
reinforced by the handwritten notes of the January 12, 2018
hearing in the clerk’s case file stating the matter has been
continued. The only reasonable interpretation of this sequence of
events is that the first January 12, 2018 minute order was
entered inadvertently.4 (Cf. Bowden v. Green (1982)
128 Cal.App.3d 65, 71 [whether an error is judicial or clerical is

4    The clerk’s issuance of a certificate of discharge does not
change this analysis. Lexington has not argued the issuance was
anything other than a ministerial act performed by the clerk
based on the erroneous minute order.




                                9
an issue of “‘the judge’s intent, and the best evidence is the
judge’s own statement, either express or implied from the order of
correction’”].) In sum, substantial evidence supports the
conclusion the minute order stating the bond had been
exonerated was an inadvertent clerical error that could be
corrected at a later date. (See People v. Aegis Security Ins. Co.
(2005) 127 Cal.App.4th 569, 573 [when reporter’s transcript
indicated bail bond had been forfeited but minute order stated
bond would be forfeited at a later date, “[s]uch a discrepancy
amounts to a clerical error that may be corrected nunc pro tunc
on the court’s own motion or at the request of a party”]; Ames v.
Paley (2001) 89 Cal.App.4th 668, 674 [“because the trial court
intended to enter judgment pursuant to the settlement
agreement, to the extent the judgment failed to conform to the
terms of the settlement agreement, the trial court retained the
inherent power to correct the judgment nunc pro tunc some
three months after entry of the judgment”]; County of Orange v.
Allied Fidelity Ins. Co. (1984) 161 Cal.App.3d 510, 512 [vacating
summary judgment entered after court had mistakenly failed to
set aside bond forfeiture].)
       Likewise, the incorrect dates contained in the notices of
entry of judgment sent to Lexington were clerical errors that
were properly corrected. Lexington has cited no evidence or
authority supporting its argument that the mention of an
April 24, 2018 judgment in one of the notices necessarily means
such a judgment exists. The only reasonable conclusion given the
totality of the circumstances is that the date was a clerical error.




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                         DISPOSITION
      The order denying Lexington’s motion to vacate summary
judgment and to exonerate the bond is affirmed. The People are
to recover their costs on appeal.



                                        PERLUSS, P. J.

     We concur:



           SEGAL, J.



           DILLON, J.*




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




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