Filed 11/19/14 P. v. Internat. Fidelity Ins. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 PEOPLE,
                                                                                           F067760
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10901037)
                   v.

INTERNATIONAL FIDELITY INSURANCE                                                         OPINION
CO.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
         John M. Rorabaugh for Defendant and Appellant.
         Daniel C. Cederborg, County Counsel, and Evan A. Merat, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant and appellant, International Fidelity Insurance Company (International
Fidelity), the surety on a bail bond, appeals the order denying its motion to set aside the
summary judgment on a forfeited bond. International Fidelity argues that the summary
judgment on the bail forfeiture is void because it was entered while International
Fidelity’s appeal from the order denying its motion to vacate the forfeiture was pending.
According to International Fidelity, the pendency of the appeal from the order denying
the motion to vacate the forfeiture deprived the trial court of jurisdiction to enter
summary judgment on the forfeited bond.
       Under long-standing case authority, an appeal from an order denying a motion to
vacate the forfeiture of a bail bond does not stay the power of the trial court to enter
summary judgment on that forfeited bond. Contrary to International Fidelity’s position,
case law broadly applying Code of Civil Procedure section 916 in other situations has not
changed this rule. Accordingly, the order denying the motion to set aside the summary
judgment will be affirmed.
                                      BACKGROUND
       On March 1, 2010, International Fidelity posted a $400,000 bond for the release of
the defendant from custody. When the defendant failed to appear in court on March 15,
2010, the trial court ordered bail forfeited.
       Through timely motions filed by International Fidelity, the forfeiture period was
extended to March 16, 2011. On March 15, 2011, International Fidelity moved to vacate
the forfeiture and exonerate bail. On June 9, 2011, the trial court denied International
Fidelity’s motion and ordered that summary judgment be entered in respondent’s favor.
       International Fidelity filed a notice of appeal from this order on June 13, 2011.
Summary judgment on the bond was entered on August 5, 2011.
       This court affirmed the trial court’s denial of International Fidelity’s motion to
vacate the forfeiture and exonerate bail in a decision filed on January 16, 2013.
Remittitur issued on March 18, 2013.
       On April 8, 2013, International Fidelity filed the underlying motion to set aside the
summary judgment. International Fidelity argued that the trial court was without

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jurisdiction to enter summary judgment while the appeal on the order denying
International Fidelity’s motion to vacate the forfeiture and exonerate bail was pending.
This motion was denied.
                                         DISCUSSION
       When a criminal defendant for whom a bail bond has been posted fails to appear,
the trial court must declare the bond forfeited in open court. (Pen. Code, § 1305, subd.
(a).) Thereafter, the surety that posted the bond has a statutory “appearance” period in
which to either produce the accused in court and have the forfeiture set aside or
demonstrate other circumstances requiring the court to vacate the forfeiture. (People v.
American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) If the forfeiture is not
set aside by the end of the appearance period, the trial court must enter summary
judgment against the surety. (Pen. Code, § 1306, subd. (a).) If “summary judgment is
not entered within 90 days after the date upon which it may first be entered, the right to
do so expires and the bail is exonerated.” (Id., subd. (c).)
       Here, when the trial court denied International Fidelity’s motion to vacate the
forfeiture and exonerate bail on June 9, 2011, the 90-day period in which summary
judgment must be entered began. International Fidelity argues that, because it filed a
notice of appeal from the denial of its motion to vacate the forfeiture on June 13, 2011,
the trial court lacked subject matter jurisdiction to enter the summary judgment on
August 5, 2011, and therefore the summary judgment is void. International Fidelity relies
on the general rule set forth in Code of Civil Procedure section 916 that “the perfecting of
an appeal stays proceedings in the trial court upon the judgment or order appealed from
or upon the matters embraced therein or affected thereby .…” (Id., subd. (a).) According
to International Fidelity, recent case law applying Code of Civil Procedure section 916 in
other situations mandates this result.
       However, long-standing case law conflicts with International Fidelity’s argument.
The first court to rule on this issue in a published opinion was the appellate department of

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the Los Angeles Superior Court in County of Los Angeles v. Wilshire Ins. Co. (1979) 103
Cal.App.3d Supp. 1 (Wilshire). In rejecting the claim that the trial court lacked
jurisdiction to enter summary judgment on the bail bond because an appeal was pending
from an order denying a motion to vacate the forfeiture, the court noted that if the trial
court had not entered summary judgment within the 90-day period provided by Penal
Code section 1306, the bond would have been exonerated and the bail lost to the people
of the State of California. (Wilshire, supra, 103 Cal.App.3d at p. Supp. 3.) The court
reasoned that the statutory scheme with respect to forfeiture of a bail bond and the entry
of summary judgment is specific and does not provide that appeal from the forfeiture
stays the power of the court to enter summary judgment. The court therefore concluded
that “[t]his specific statutory scheme prevails over the general provisions of Code of Civil
Procedure section 916, subdivision (a).” (Ibid.)
       In County of Sacramento v. Insurance Co. of the West (1983) 139 Cal.App.3d 561
(Sacramento), the court agreed with Wilshire. The court concluded that, “considering the
express language of Penal Code section 1306 and applying established rules of statutory
construction,” an appeal from the trial court’s refusal to vacate a forfeiture does not stay
the power of the court to enter summary judgment. (Sacramento, supra, 139 Cal.App.3d
at p. 565.) The court reasoned that Penal Code section 1306 places the responsibility for
entering summary judgment on defaulted bail on the court, unequivocally limits the time
within which the judgment may be entered, and provides that the right to enter the
judgment terminates when that time limit has expired. The court found that this section is
clear and unambiguous and imposes a jurisdictional 90-day time limit on the entry of
summary judgment. (Sacramento, supra, at p. 565) Moreover, the court noted,
“statutory provisions relating to time generally will be construed as mandatory where
consequences or penalties are attached to the failure to observe the provision within a
given time.” (Id. at pp. 565-566.)



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       In the recent case of People v. Indiana Lumbermens Mutual Ins. Co. (2014) 226
Cal.App.4th 1 (Indiana), the court was faced with the identical issue and arguments.
There, as here, relying particularly on Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal.4th 180 (Varian), the bail bond surety argued that case law’s broad application of
Code of Civil Procedure section 916 required a departure from Wilshire and Sacramento.
The Indiana court concluded that this argument was unavailing. (Indiana, supra, 226
Cal.App.4th at p. 8.)
       In Varian, the court held that an appeal from the denial of a special motion to
strike under the anti-SLAPP statute automatically stays all further trial court proceedings
on the merits on the causes of action affected by the motion. (Varian, supra, 35 Cal.4th
at p. 186.) The court noted that “[o]therwise, the trial court could render the ‘appeal
futile by altering the appealed judgment or order by conducting other proceedings that
may affect it.’” (Id. at p. 198.)
       Nevertheless, the Indiana court concluded that Varian did not support the bail
bond surety’s “contention the general statutory provision of Code of Civil Procedure
section 916 controls over the statutory scheme governing bail forfeiture.” (Indiana,
supra, 226 Cal.App.4th at p. 9.) Rather, the statute governing summary judgment on bail
bonds specifies a strict 90-day time limit that is mandatory and jurisdictional. The court
recognized that this limit is inconsistent with a more general provision that imposes a stay
pending an appeal. Accordingly, “[a]pplying a general statute imposing a stay in the
event of an appeal, and thereby extending the time for entry of summary judgment, would
be contrary to the intent of the more specific summary judgment statute to place a
jurisdictional time limit on the right to enforce a forfeiture.” (Indiana, supra, 226
Cal.App.4th at p. 9.)
       The Indiana court’s analysis is sound. International Fidelity has not provided a
persuasive reason to depart from the long-standing case law. Thus, the trial court had
jurisdiction to enter summary judgment against International Fidelity notwithstanding the

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pendency of International Fidelity’s appeal from the order denying its motion to vacate
the forfeiture. Therefore, the trial court properly denied International Fidelity’s motion to
set aside the summary judgment. (Cf. Indiana, supra, 226 Cal.App.4th at p. 10.)
                                      DISPOSITION
       The order denying International Fidelity’s motion to set aside the summary
judgment on the forfeited bond is affirmed. Costs on appeal are awarded to respondent.

                                                                 _____________________
                                                                       LEVY, Acting P.J.
WE CONCUR:


 _____________________
CORNELL, J.


 _____________________
GOMES, J.




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