Filed 4/22/15 County of Los Angeles v. Financial Casualty & Surety CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


COUNTY OF LOS ANGELES,                                                B251653

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SJ003867)
         v.

FINANCIAL CASUALTY & SURETY
INC.,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark E. Windham and Lia Martin, Judges. Affirmed.
         John M. Rorabaugh and E. Alan Nunez for Defendant and Appellant.
         Richard D. Weiss, Acting County Counsel, Ruben Baeza, Jr., Assistant
County Counsel, and Lindsay Yoshiyama, Deputy County Counsel, for Plaintiff
and Respondent.



                                  ________________________________
                                 INTRODUCTION
        Appellant Financial Casualty & Surety, Inc. (Financial) appeals from a
summary judgment on a forfeited bail bond, entered after the trial court denied its
motion to vacate forfeiture and exonerate the bond. Financial contends the court
lacked jurisdiction over the bond when it failed to declare a forfeiture on the
defendant’s first nonappearance. Instead, the court granted the defendant a
continuance to a later date, and declared a forfeiture when he failed to appear on
that date. Financial contends the court abused its discretion in granting the
continuance and, in any event, the court lacked jurisdiction to declare a forfeiture
on the later date when it failed to expressly order the defendant to appear on that
date. For the reasons set forth below, we affirm.


        FACTUAL BACKGROUND & PROCEDURAL HISTORY
        On October 20, 2011, a complaint was filed, charging defendant Yinusa
Obtula Kazeem with burglary, grand theft, and multiple counts of forgery.
Financial posted a $50,000 bail bond for Kazeem. On January 31, 2012, the case
was called for a preliminary hearing. Kazeem and his counsel, Jerome A. Kaplan,
were present. On motion of the defense, the hearing was continued to February 29,
2012.
        On February 29, neither Kazeem nor Kaplan was present when the case was
called. Accordingly, the trial court ordered a bench warrant issued and the bail
bond forfeited. Kaplan appeared later that morning, and the following colloquy
occurred:
        “THE COURT: Is your client here?




                                          2
      “MR. KAPLAN: No. I filed a [motion for a continuance under Penal
      Code section] 1050.[ ] You didn’t get it?
                          1




      “THE COURT: I didn’t get it. But if the People got it, that’s the
      main thing.

      “MR. KAPLAN: I filed it yesterday. My client’s father was killed in
      the bombing -- I have it here if you want to read it -- in Nigeria. And
      his mother was -- . . .

      “THE COURT: The bench warrant will be held until -- how much
      time does your client need?

      “MR. KAPLAN: I’d ask for a few weeks your Honor. I’m not asking
      for a lot. I will give you the [section] 1050 [motion]. I have the
      [news] article and all that. [¶] They called me, and they were crying,
      and I didn’t know what to tell them.

      “THE COURT: Of course. [¶] The bail forfeiture is set aside
      and . . .

      “MR. KAPLAN: I was trying to get here from downtown, but there’s
      an accident on the 10 [freeway].

      “THE COURT: No problem. Nunc pro tunc.

      “MR. KAPLAN: Anything but March 8. I can’t do March 8 . . .

      “THE COURT: We’ll put it a little farther. [¶] When your client
      returns, would it be a setting or do you want a preliminary hearing on
      that date?



1
      All further statutory citations are to the Penal Code. Penal Code section
1050 details the procedural and substantive requirements for a continuance.
Specifically, section 1050, subdivision (b) requires a noticed motion with affidavits
or declarations detailing the specific facts showing that a continuance is necessary.


                                         3
      “MR. KAPLAN: I think we could probably dispose of the case. I
      would like to set it.

      [¶] . . . [¶]

      “MR. KAPLAN: How about March -- I see that March 26 is open.
      How about that? . . . .

      “THE COURT: . . . The 26th for setting?

      “MR. KAPLAN: Right. Yes.

      “THE COURT: And then is that good for the People? . . .

      “MR. BROWN: That’s fine.

      “MR. KAPLAN: Thank you very much, your Honor.

      “THE COURT: So, it’s a bench warrant hold. As a practical matter,
      it’s a setting.”

When asked where the defendant was located, defense counsel indicated that he
was with his mother and family in Maryland, and that counsel doubted he could
travel to Nigeria because the court had his “travel document.” The court’s minutes
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reflect that the bench warrant was recalled and held to March 26, 2012.
      On March 26, 2012, Kaplan appeared without his client. He informed the
court that he had had no contact with Kazeem. The court ordered bail forfeited,
and a bench warrant issued. On March 27, the clerk of the court mailed a notice of
forfeiture to the bail agent and appellant. On October 10, the court heard and
granted appellant’s motion to extend time on bail forfeiture until March 27, 2013.
2
       The minutes also show that the court ordered the defendant to appear on the
next court date, March 26, though no such oral pronouncement appears in the
reporter’s transcript. This is not surprising, as the defendant was not before the
court.

                                         4
      On March 26, 2013, appellant filed its motion to vacate forfeiture and
exonerate bail. In its motion, appellant argued that the trial court lost jurisdiction
over the bail bond when it failed to declare a forfeiture on February 29, 2012 -- the
date Kazeem failed to appear for the rescheduled preliminary hearing. Appellant
contended the trial court should have declared a forfeiture of the bail bond then, as
“no excuse for the defendant’s failure to appear [was] reflected in the minutes.” In
a supplemental memorandum, appellant also argued that the court lacked
jurisdiction to declare the bail forfeited on March 26, 2012, because the defendant
had not been ordered to appear on that date.
      On August 6, 2013, the trial court denied appellant’s motion to vacate the
bond forfeiture and exonerate the bond. A clerk’s notice of entry of summary
judgment on forfeited bond and demand for payment was filed and entered August
9, 2013. Appellant filed a timely appeal from the judgment and the order denying
its motion to vacate forfeiture.


                                    DISCUSSION
      Section 1305 provides, in relevant part, that the trial court “shall in open
court declare forfeited the undertaking of bail or the money or property deposited
as bail if, without sufficient excuse, a defendant fails to appear for any of the
following: [¶] . . . [¶] (4) Any other occasion prior to the pronouncement of
judgment if the defendant’s presence in court is lawfully required.” (§ 1305,
subd. (a).) Thus, under section 1305, the court must immediately declare a bail
bond forfeited upon a defendant’s first unexcused nonappearance. “Failure to
follow the jurisdictional prescriptions in section[] 1305 . . . renders a summary
judgment on the bail bond void. [Citations.]” (County of Los Angeles v. Ranger




                                           5
Ins. Co. (1999) 70 Cal.App.4th 10, 16; accord, People v. American Contractors
Indemnity Co. (2001) 91 Cal.App.4th 799, 805.
      However, a trial court need not immediately declare a bail forfeiture if the
court believes there is sufficient excuse for the defendant’s nonappearance.
Section 1305.1 provides: “If the defendant fails to appear . . . upon any other
occasion when his or her appearance is lawfully required, but the court has reason
to believe that sufficient excuse may exist for the failure to appear, the court may
continue the case for a period it deems reasonable to enable the defendant to
appear without ordering a forfeiture of bail or issuing a bench warrant. [¶] If, after
the court has made the order, the defendant, without sufficient excuse, fails to
appear on or before the continuance date set by the court, the bail shall be forfeited
and a warrant for the defendant’s arrest may be ordered issued.” Thus, under
section 1305.1, the trial court may continue a hearing and still retain jurisdiction to
declare a forfeiture at a later time, so long as it has reason to believe that sufficient
excuse exists for the nonappearance. (People v. American Bankers Ins. Co. (1989)
215 Cal.App.3d 1363, 1367; accord, People v. Ranger Ins. Co. (2003)
108 Cal.App.4th 945, 951-952.)
      “Because each case presents its own unique set of circumstances the issue
whether the showing of excuse is sufficient is decided on a case-by-case basis.
The determination whether an excuse is sufficient is a matter within the trial
court’s discretion.” (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 952,
fns. omitted.) In most cases, the only evidence before the trial court is the
evidence or representations furnished by defense counsel. “The cases demonstrate
that the courts have cooperated with defense counsels’ requests [for a continuance
under section 1305.1] and have liberally relied on their representations.” (People
v. National Automobile & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 306.)


                                            6
      Here, defense counsel represented that the defendant’s father had been killed
in a bombing in Nigeria, that the defendant was with his mother and family in
Maryland, and that he needed a few weeks’ continuance. These representations
were sufficient for the trial court to grant a continuance under section 1305.1. (See
People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 20 [court had reason to
believe sufficient excuse existed for defendant’s nonappearance where counsel
represented that he wished to be with his terminally ill mother]; cf. People v.
Ranger Ins. Co., supra, 108 Cal.App.4th at pp. 949 & 953 [sufficient excuse where
counsel sought a continuance to the next day and noted that defendant had never
failed to appear in any prior proceeding over past several months]; People v.
Amwest Surety Ins. Co. (1997) 56 Cal.App.4th 915, 925-926 [sufficient excuse
where counsel represented that defendant’s absence might be due to an emergency,
and that he might be available the next morning]; People v. Surety Ins. Co. (1976)
55 Cal.App.3d 197, 199, 201 [sufficient excuse where counsel represented that
defendant had sought medical treatment for internal bleeding]; People v. Wilshire
Ins. Co. (1975) 53 Cal.App.3d 256, 258-261 [sufficient excuse where counsel
represented that defendant was then appearing in another criminal matter in
another jurisdiction]; People v. National Automobile & Cas. Ins. Co., supra,
75 Cal.App.3d at pp. 304, 306 [sufficient excuse where counsel represented that
defendant’s mother had advised him that defendant had been in an automobile
accident].)
      The cases relied on by appellant are inapposite. People v. United Bonding
Ins. Co. (1971) 5 Cal.3d 898, People v. Surety Ins. Co. (1984) 160 Cal.App.3d 963,
and People v. American Bankers Ins. Co., supra, 215 Cal.App.3d 1363, involved
cases where no excuse was provided for the defendant’s nonappearance. (See
People v. United Bonding Ins. Co., supra, 5 Cal.3d at pp. 902-903 [defense counsel


                                          7
stated he knew of no reason why defendant was not present, and court waited four
months to forfeit bond for first nonappearance]; People v. Surety Ins. Co., supra, at
p. 969 [defense counsel represented he would “‘endeavor to have [his client]
brought in,’” but provided no reason for nonappearance]; People v. American
Bankers Ins. Co., supra, 215 Cal.App.3d 1363, 1367 [record was silent as to any
representation by counsel].) In contrast, here, defense counsel provided a reason
for the defendant’s nonappearance.
      People v. Surety Ins. Co. (1985) 165 Cal.App.3d 22, is similarly
distinguishable, as there, the trial court expressly found there was “no reason I’m
aware of why the [d]efendant should not be here. . . .” (Id. at p. 28.) In contrast,
here, the trial court found there was sufficient excuse for the defendant’s failure to
appear. We discern no abuse of discretion in the trial court’s grant of a
                                         3
continuance pursuant to section 1305.1.
      Because the trial court continued the preliminary setting to March 26, 2012,
it retained jurisdiction to declare a forfeiture at that time. (People v. American
Bankers Ins. Co., supra, 215 Cal.App.3d at p. 1367; People v. Ranger Ins. Co.,
supra, 108 Cal.App.4th at pp. 951-952.) Appellant contends, however, that the
court lacked jurisdiction to forfeit the bail bond on March 26, because it did not
specifically order the defendant to appear on that date. (See People v. Classified
Ins. Corp. (1985) 164 Cal.App.3d 341, 346 [“Absent an order or other actual
notification from the court that [the defendant’s] appearance was required at a
given date and time, the failure of [the defendant] to appear cannot be grounds for

3
      At oral argument, appellant’s counsel for the first time urged this court to
adopt a “bright-line rule,” requiring forfeiture any time the justification for a
defendant’s absence revealed that the defendant was out of the jurisdiction.
Neither section 1305.1 nor the cases interpreting it have imposed such a
requirement, and we decline to do so.

                                             8
forfeiture of bail under section 1305”]; but see People v. Sacramento Bail Bonds
(1989) 210 Cal.App.3d 118, 122 [declining to hold that “‘before a court can forfeit
bail a defendant’s appearance must [always] be required by a specific court order
commanding his appearance at a date and time certain’”].)
       Appellant’s argument ignores the plain language of section 1305.1, which
makes clear that once a court has found grounds to continue a hearing at which the
defendant failed to appear, no new order compelling the defendant’s appearance on
the continued date is required: “If, after the court has made the order, the
defendant, without sufficient excuse, fails to appear on or before the continuance
date set by the court, the bail shall be forfeited. . . .” (§ 1305.1, italics added.)
Thus, no new order is required by statute and none was necessary here, as
appellant continued to be under the obligation of the original order compelling his
appearance. The trial court’s continuance order merely held the original order in
                                                                                4
abeyance until the next court date, of which defense counsel was advised.
Accordingly, when appellant failed to appear on the continuance date, the bail was
properly forfeited pursuant to section 1305.1. In short, we find no error in the trial
court’s order denying appellant’s motion to vacate forfeiture and exonerate the
bond, and the entry of summary judgment on the bond was therefore proper.




4
      Appellant concedes that where the court has ordered a continuance under
section 1305.1, the defendant need not have actual notice of the continuance date.
Given this concession, it is difficult to fathom why an order would be necessary,
especially as the defendant, by definition, is not present in court when the matter is
continued due to his absence.

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                               DISPOSITION
     The judgment is affirmed. Respondent is awarded its costs.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                MANELLA, J.


We concur:




EPSTEIN, P. J.




COLLINS, J.




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