Filed 6/30/16 P. v. Indiana Lumbermens Mutual Ins. Co. CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E062800

v.                                                                      (Super.Ct.No. CIVDS1413812)

INDIANA LUMBERMENS MUTUAL                                               OPINION
INSURANCE COMPANY,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez,

Judge. Affirmed.

         Law Offices of Brendan Pegg and Brendan Pegg for Defendant and Appellant.

         Jean-Rene Basle, County Counsel, and John R. Tubbs II, Deputy County Counsel,

for Plaintiff and Respondent.

         Appellant Indiana Lumbermens Mutual Insurance Company (hereafter

Lumbermens) appeals an order denying its motion to vacate a summary judgment on a



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bail bond forfeiture. It asserts on various grounds that the trial court lacked jurisdiction

to vacate an existing extension order and to enter summary judgment.

       We will affirm the judgment.

                                       BACKGROUND

       A bail bond is forfeited if the defendant fails to appear as ordered at a specified

hearing. (Pen. Code, § 1305, subd. (a).)1 If the defendant appears, either voluntarily or

in custody, within 180 days of the date of mailing the notice of forfeiture, the court must

vacate the order of forfeiture and exonerate the bond. (§ 1305, subd. (c)(1).) At any time

within this period—referred to variously as the appearance period or the exoneration

period, which is extended to 185 days to account for mailing of the notice of forfeiture—

the surety may seek an order extending the exoneration period. (People v. Bankers Ins.

Co. (2010) 182 Cal.App.4th 1377, 1380.) The court may, if good cause is shown for

doing so, order the period extended “to a time not exceeding 180 days from its order.”

(§ 1305.4; see § 1305, subd. (j).) The courts have held that section 1305.4 allows an

extension of no more than 180 days past the 185-day period provided for in section 1305,

or multiple extensions totaling no more than 180 days. (People v. Bankers Ins. Co., at

p. 1380.) Once the exoneration period has elapsed without the forfeiture having been set

aside, the court “shall enter a summary judgment against each bondsman named in the

bond” in the amount of the bond plus costs. (§ 1306, subd. (a).) However, “‘[i]f, because

of the failure of any court to promptly perform the duties enjoined upon it pursuant to


       1   All statutory citations refer to the Penal Code.

                                               2
[section 1306], 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.’

(§ 1306, subd. (c).)” (People v. Bankers Ins. Co., at p. 1380.)

       On March 28, 2013, Lumbermens executed a bail bond in the amount of $100,000,

which was posted for the release of Tiffany Washington in San Bernardino County

Superior Court case No. FSB1300167. On June 6, 2013, Washington failed to appear for

her preliminary hearing, as ordered by the court on June 4, 2013. The trial court ordered

the bond forfeited, and a notice of forfeiture was mailed on June 7, 2013.

       On December 9, 2013, Lumbermens filed a motion for an extension of time to

produce Washington. The court extended the forfeiture period for 180 days, through

June 9, 2014. On May 23, 2014, Lumbermens filed a motion for an additional time

extension, which was granted for an additional 180 days. Respondent County of San

Bernardino (the county) did not receive notice of the motion until after it was granted.

       On July 16, 2014, the county filed a motion to set aside the second extension,

arguing that it was contrary to law, in that section 1305.4 provides only for a single

extension of up to 180 days from the date of the forfeiture or the date of mailing the

notice of forfeiture. The county argued that the extension was void as of June 10, 2014.2



       2  The maximum time Lumbermens could have been granted to produce
Washington was 365 days from June 7, 2013, the date of mailing the notice of
forfeiture—185 days from the date of mailing the notice, plus a single extension of 180
days. (People v. Bankers Ins. Co., supra, 182 Cal.App.4th at p. 1380.) We take judicial
notice that June 7, 2014 was a Saturday. Accordingly, the exoneration period expired the
following Monday, June 9, 2014 (Code Civ. Proc., §§ 12, 12a), and the 90-day period for
                                                                  [footnote continued on next page]

                                              3
        On September 11, 2014, the trial court granted the county’s motion to set aside the

extension order and entered summary judgment on the bond.

        On October 10, 2014, Lumbermens filed a motion to vacate the summary

judgment and to exonerate the bond. The trial court denied the motion on January 7,

2015. Lumbermens filed a timely notice of appeal.

                                          LEGAL ANALYSIS

          THE TRIAL COURT VALIDLY GRANTED SUMMARY JUDGMENT

        An order denying a motion to vacate summary judgment on a bail bond forfeiture is

an appealable order and is a proper vehicle for considering a jurisdictional attack on the

summary judgment. (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 5, fn. 4.)

When the facts are undisputed and only legal issues are involved, as in this case, the

appellate court conducts an independent review. (People v. International Fidelity Ins. Co.

(2012) 204 Cal.App.4th 588, 592.)

        Lumbermens contends that the summary judgment was not timely because it was

not entered within 90 days after the expiration of the forfeiture period. (§ 1306,

subd. (c).) It states that, accordingly, “the issue presented here is whether or not estoppel

principles apply to allow the court extra time for entry of the summary judgment.” This

apparently means that Lumbermens asserts that it is not estopped from asserting that the

judgment was not timely. We disagree.


[footnote continued from previous page]
[footnote continued from previous page]
timely entry of judgment on the bond began on June 10, 2014 and ended on September 8,
2014. Judgment was entered on September 11, 2014.

                                                4
       This scenario was addressed in People v. Bankers Ins. Co., supra, 182 Cal.App.4th

1377 (Bankers). In that case, Bankers sought and received multiple extensions of the

exoneration period, in excess of 180 days total. After it failed to produce the defendant,

the trial court entered summary judgment on the bond and subsequently denied Bankers’

motion to vacate the judgment. (Id. at pp. 1380-1381.) In the motion, Bankers argued

that the trial court had lost jurisdiction because it did not enter judgment within the time

required by section 1306. The appellate court agreed that the trial court lacked authority

to enter summary judgment. However, the court held that the judgment was not void but

merely voidable because the trial court did not act without jurisdiction—that is, it had

subject matter jurisdiction over the bond—but merely in excess of its jurisdiction because

its action was not authorized by statute. Because the judgment was not void but merely

voidable, the judgment was valid unless it was vacated. (Id. at pp. 1382-1384.)

       However, a party may be precluded by estoppel from setting aside a voidable

judgment. The court held that Bankers was estopped from asserting the trial court’s lack

of jurisdiction to enter judgment based on the invalidity of the extension order, because it

had expressly sought the extension of the exoneration period and its motion had resulted

in an extension not authorized under sections 1305 and 1305.4. (Bankers, supra, 182

Cal.App.4th at pp. 1384-1386.) We agree with this analysis and find that it applies to

Lumbermens’ actions in this case.

       Lumbermens argues, however, that estoppel should not apply to it because it did

not receive any benefit from the extension. It contends that “the essence of an estoppel

argument is that a party cannot complain of something after receiving its benefit.” It cites

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People v. Stuyvesant Ins. Co. (1968) 261 Cal.App.2d 773 as authority that estoppel is not

appropriate in this case. We note, first, that Stuyvesant does not discuss whether estoppel

requires that the party to be estopped has received a benefit. Second, it does not involve

a situation analogous to this case, in which the surety sought an extension of the

exoneration period beyond that authorized by law. In Stuyvesant, the estoppel issue was

unconnected to delay in entering the summary judgment. Rather, the issue Stuyvesant

addressed was whether the state can be estopped from opposing and preventing the

vacation of the order forfeiting the bail bond because the district attorney had made

allegedly false representations to the surety, on which the surety relied. (Id. at pp. 775-

776, 781-782, 783-784.) In that connection, the court stated the applicable rule as

follows:

       “[T]he requirements for invoking an estoppel, even if estoppel were available,

have not been met. ‘Generally, speaking, four elements must be present in order to apply

the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the

facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party

asserting estoppel had a right to believe it was so intended; (3) the other party must be

ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury

[citations].’ [Citation.] [¶] Stuyvesant cannot claim ignorance of the true state of facts

where it is primarily a knowledge of the applicable law. The law was as open to

Stuyvesant’s counsel as it was to the district attorney. In People v. Stuyvesant Ins. Co.

[(1963)] 216 Cal.App.2d 380, 381-382, it had learned that the provisions of sections 1305

and 1306 of the Penal Code were both mandatory and jurisdictional. . . . Even an

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expression as to a matter of law, in the absence of a confidential relationship, is not a

basis for an estoppel. [Citation.] Nor do acts performed under a mutual mistake of law

constitute grounds for estoppel. [Citation.]” (Stuyvesant, supra, 261 Cal.App.2d at

p. 784.)

       In contrast, where the surety caused the delay in entering summary judgment by

seeking and obtaining an unauthorized extension under section 1305.4, the applicable

rule is different: “When, as here, the court has jurisdiction of the subject, a party who

seeks or consents to action beyond the court’s power as defined by statute or decisional

rule may be estopped to complain of the ensuing action in excess of jurisdiction.” (In re

Griffin (1967) 67 Cal.2d 343, 347.) This is the rule we apply in this case.

        Lumbermens also asserts that the county’s motion to set aside the second

extension was improper because it asserted that the resulting “judgment” was “void on its

face” rather than voidable. Lumbermens questions whether the same rationale—void

versus voidable—applies to orders as well as judgments, but ultimately goes on to assert

that the county should have been required to file an appeal from the second extension

order rather than seeking to vacate it by motion. We fail to see the connection between

the two contentions, both of which come under the heading, “The County Did Not Act

Properly In Attacking the Extension Order By Simply Labelling It Void.” In any event,

the substance of the argument appears to be that the trial court improperly granted the

motion to vacate the extension because the county was required to appeal the order, not

file a motion to vacate it.



                                              7
       Lumbermens does not cite any authority that an order granting an extension

motion under section 1305.4 is an appealable order. It acknowledges that in People v.

Seneca Ins. Co. (2004) 116 Cal.App.4th 75, the court held that an order denying such a

motion is not appealable, but that issues pertaining to the order could be addressed on

appeal from a subsequent summary judgment. (Id. at pp. 79-80.) It contends that several

other cases have found orders under section 1305.4, whether granting or denying an

extension motion, to be appealable. None of the cases Lumbermens cites actually

addressed and decided that question, however.

       In People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, cited by Lumbermens,

the court consolidated appeals from an order denying an extension motion and from the

subsequent judgment on the bond, but it did not address whether the order under section

1305.4 was separately appealable. (Id. at pp. 677-678.) An opinion is not authority for

an issue it does not decide. (In re Marriage of Davis (2015) 61 Cal.4th 846, 862.)

Accordingly, People v. Ranger does not support Lumbermens’ contention. Similarly, in

People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, also cited by Lumbermens, this

court too addressed issues pertaining to the denial of extension motions. In the opinion,

we stated that the surety appealed from the orders denying its motions and from the

subsequent judgment (id. at p. 125), but we did not address any contention that the order

on the extension motion was or was not separately appealable. In the final case cited by

Lumbermens, People v. Accredited Surety & Casualty Co., Inc. (2006) 137 Cal.App.4th

1349, the court likewise addressed the surety’s contention that its extension motion

should have been granted on its appeal from the summary judgment entered after the

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denial of the extension motion. (Id. at p. 1354.) The court did not address any contention

concerning the appealability of the order itself. Accordingly, we are not persuaded that

the trial court improperly granted the county’s motion to vacate the order granting

Lumbermens’ extension motion on the ground that the county’s remedy was to appeal.

       Finally, Lumbermens argues that the trial court did not have jurisdiction to enter

summary judgment on September 11, 2014, because the bond had been exonerated on

June 23, 2014.

       The basis for this claim is as follows: A minute order in the underlying criminal

case dated June 4, 2014, states, “Bond agency motion to extend forfeiture 180 days is

granted. Upon payment of $75.00 costs by 07/07/2014 (30 days of notice), forfeiture of

bond #US100786961 is ordered vacated and bond ordered reinstated and exonerated.”

The online docket for the case further states that on June 23, 2014, the $75 payment was

received and that the bond was reinstated and then exonerated and returned to the

bondsman. However, on September 3, 2014, at the hearing on the county’s motion to set

aside the second extension order and enter summary judgment, the trial court found that

“the court did not order the bond forfeiture vacated nor did the court order reinstatement

and/or exoneration of the bond on 6/4/14. The minute order of 6/4/14 so stating is a

clerical error. The court therefore voids the clerical error entry on the minute order.”

       Lumbermens contends that the trial court had no jurisdiction to set aside the

minute order, even though the court found it to be the result of clerical error. It relies on

People v. International Fidelity Ins. Co., supra, 204 Cal.App.4th 588, where the court

held, “Where the bond does not exist because it was exonerated, the court lacks

                                              9
fundamental jurisdiction, and any summary judgment purported entered on that bond is

void. [Citation.]” (Id. at p. 595.)

       International Fidelity does not support Lumbermens’ position, however. In that

case, the defendant was initially released on a $35,000 bond provided by Bankers

Insurance Company. He failed to appear as ordered, and the trial court later remanded

him into custody. The trial court then issued a new order for bail in the amount of

$100,000. The court stated that it would “allow” the $35,000 bond to remain.

International Fidelity later posted a $65,000 bond for the remainder of the bail amount,

and the defendant was released. When the defendant again failed to appear, the court

ordered both bonds forfeited. Summary judgment was later entered. (International

Fidelity, supra, 204 Cal.App.4th at pp. 590-591.) The appellate court held, however, that

the $35,000 bond was exonerated as a matter of law when the defendant was returned to

custody, and that the trial court had no authority to order it to remain in effect. (Id. at

p. 593, citing § 1305, subd. (c)(1) [where a defendant appears in custody after a previous

failure to appear and forfeiture of his or her bail, the court shall “‘direct the order of

forfeiture to be vacated and the bond exonerated. If the court fails to so act on its own

motion, then the surety’s or depositor’s obligations under the bond shall be immediately

vacated and the bond exonerated’”].) In the absence of a valid bond for $35,000, the

court held, International Fidelity did not receive the benefit of its bargain “to post an

additional $65,000 of a total of $100,000 bail” and to “receive the benefit of the

additional $35,000 of bail being in place.” (International Fidelity, at p. 595.)



                                              10
       In the instant case, the bond was not exonerated by operation of law. Indeed, the

June 4, 2014 minute order reflects that defendant was still a fugitive, and it does not

reflect that she was returned to custody on or before June 23, 2014, the date on which

Lumbermens claims the bond was exonerated. Although we do not have a reporter’s

transcript of the hearing on September 3, 2014, we infer that the trial court concluded that

the June 4, 2014 minute order stating that the bond would be exonerated upon payment of

the $75.00 fee was a clerical error because there was no legal basis for exonerating the

bond. Lumbermens has not met its burden of showing that this was error.

                                      DISPOSITION

       The judgment is affirmed. The County of San Bernardino is awarded costs on

appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                           J.
We concur:



RAMIREZ
                        P. J.



SLOUGH
                           J.




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