People v. American Bankers Insurance

order summary judgment. The court relied upon People v. American Bankers Ins. Co. (1990) 222 Cal.App.3d 223 [ 271 Cal.Rptr. 464 ],

In People v. American Bankers Ins. Co., supra, the 180-day period^[1] had elapsed after the court had declared a forfeiture. The 90-day period^[2] following the 180-day period would have terminated on October 29, 1988. During that 90-day period and on August 4, 1988, American moved to vacate the forfeiture and exonerate the bond. The motion was set for hearing on August 29. The hearing was continued from time to time and was eventually heard on February 7, 1989. In the meantime, on November 2, 1988, American had lodged with the court a certificate tending to show that the defendant therein had died in Mexico in July of 1988. However, apparently in December, American learned that defendant was alive and in custody in Fresno. Counsel for American represented that he had called the clerk’s office to request that the motion be taken off calendar. The motion was still on calendar on February 7, 1989, and counsel for the county appeared. No appearance was made on behalf of American. The motion to vacate the forfeiture on the ground that the defendant had died was denied.

On March 7, 1989, summary judgment was entered against American in the sum of $25,000. American’s motion to vacate the summary judgment and exonerate the bond was denied. On appeal, American argued that “the 90-day period during which the court could enter summary judgment against it started on August 1, the day after the 180-day period ended. It contends the failure of the court to enter summary judgment during the 90-day period resulted in termination of its jurisdiction to do so and requires the court to vacate the bail forfeiture.” (People v. American Bankers Ins. Co., supra, 222 Cal.App.3d at p. 226.)

The court held, “Under such circumstances it would be improper to hold that the trial court lost jurisdiction to enter summary judgment because it did not do so within the 90-day period after the period of exoneration had ended.” (People v. American Bankers Ins. Co., supra, 222 Cal.App.3d at

p. 228.) The court noted that in People v. Wilcox (1960) 53 Cal.2d 651 , 657 [ 2 Cal.Rptr. 754 , 349 P.2d 522 , 78 A.L.R.2d 1174 ], the Supreme Court observed that Penal Code section 1306^[3] “ ‘can not be construed to require a summary judgment when the court has pending before it an application for relief under section 1305 at the end of the 90-[now 180] day period. As the relief sought in the present case was commenced within the statutory period the court did not lose jurisdiction to grant that relief and to set aside the forfeiture.’ ” (222 Cal.App.3d at p. 226, brackets in original.)

The court in American Bankers noted, “It is clear that the only reason summary judgment was not entered against American was because of the motion to exonerate on what turned out to be a false assertion of the death of [defendant].” (People v. American Bankers Ins. Co., supra, 222 Cal.App.3d at p. 227.)

Appellant presently argues, “the ruling of the American Bankers case, upon close reading, reveals that the ruling there is simply based on equitable considerations that do not allow a surety to present one face to the court, request multiple continuances and then change it’s [sic] position and claim that summary judgment can no longer be entered because of the passing of 90 days.”

Here appellant brought the motion for summary judgment and obtained a summary judgment within the 90-day period following the expiration of the 180-day period as originally computed, not as extended by any tolling.

We do not regard American Bankers as controlling, since that case did not analyze or mention the fact that the statutes governing the underlying procedures had been amended in certain relevant respects in 1985. The case cites only one authority for its result—People v. Wilcox, supra, 53 Cal.2d 651 —a case decided long before the 1985 amendments. American Bankers discussed procedures relating to a showing of temporary disability or permanent disability, noting the similarities and differences in the statutory treatment of either type of disability, but did not discuss the fact that the underlying statutory requirements for notice and hearing, among other things, had been changed.

Forfeiture of bail is governed by section 1305 et seq. The statute was amended in 1985 (Stats. 1985, ch. 1486, § 1, p. 5481) and now provides in relevant part, “Unless waived by the district attorney, other prosecuting attorney, or county counsel, as the case may be, no order discharging the forfeiture of the undertaking or deposit shall be made without notice by the

bail to the district attorney, prosecuting attorney, or county counsel, as specified by the board of supervisors after consultation with the county counsel and the district attorney, who may request a hearing within 10 days after receipt of the notice. The notice may be given by the surety insurer, its bail agent, the surety, or the depositor of money, any of whom may give the notice and appear either in person or by an attorney. The court shall then set the date, time, and place of hearing and give notice to the district attorney, prosecuting attorney, and county counsel and to the bail.”

Prior to the amendment, provision was made for a noticed motion, a hearing thereon, and a 30-day extension of the 180-day period for the hearing to be held, as long as the notice of motion was filed within the original 180-day period.^[4]

“ ‘It is ordinarily to be presumed that the Legislature by deleting an express provision of the statute intended a substantial change in the law.’ [Citations.]” (People v. Dillon (1983) 34 Cal.3d 441 , 467 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ].) When the Legislature undertakes to amend a statute which has been the subject of judicial construction, it is presumed that the Legislature was “fully cognizant of such construction, and when substantial changes are made in the statutory language it is usually inferred that the lawmakers intended to alter the law in those particulars affected by such changes.” (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650 , 659 [ 147 Cal.Rptr. 359 , 580 P.2d 1155 ].)

The provisions of earlier versions of section 1305 dealing with a noticed motion and hearing thereon have been judicially construed in County of Los Angeles v. Surety Ins. Co. (1984) 152 Cal.App.3d 16 [ 199 Cal.Rptr. 351 ], where the court held that filing the motion for relief on the basis of temporary disability tolled the 180-day period until the hearing was held, and in People v. Wilcox, supra, 53 Cal.2d 651 , where it was determined that the court may enter an order vacating the bail forfeiture after the 90-day

must notify the prosecuting attorney before any order setting aside forfeiture and exonerating bail is filed. In turn, the prosecuting attorney may request a hearing, if one is desired. If a hearing is requested, the court sets the matter for hearing and notifies all parties of the date and time. (§ 1305, subd. (a).) Thus the statute continues to require affirmative steps by the bail seeking relief, although it stops short of requiring that the bail notice a hearing, [¶] The statute is not a model of clarity. . . . Exactly how the bail requests relief, or what the required notice must contain, is not clear. We need not address those questions in this case, though, because American made no request for relief and gave no notice until after the statutory period expired, [¶] In our view the 1985 amendments were designed to simplify, and perhaps expedite, the procedure for obtaining relief from forfeiture .... The major change was to eliminate the need for a hearing unless one is requested by the prosecuting attorney. The significance of this change is clear—the Legislature has offered a less formal procedure, simplifying the process and eliminating the expenditure of valuable court time when a hearing is not needed nor desired by the parties.”

Even though respondent still has a general statutory entitlement to bring a motion, it is not required by section 1305. Respondent’s unilateral and unrequired filing of a noticed motion on the last day of the 180-day period does not operate to divest the trial court of jurisdiction to grant the motion for summary judgment while that motion is pending. Respondent cannot follow an outdated procedure, fail to follow the prescribed procedure and unilaterally grant itself an extension of the 180-day period.

Respondent argues that unless its motion can be heard outside of the original 180-day period it would have no recourse if the temporary disability were discovered on the 179th day. However, there is nothing in the statute that would preclude a party from obtaining a temporary tolling order pursuant to the applicable provisions of section 1305 subdivision (a)^[5] to allow that party time for notice to the county counsel,^[6] for county counsel to request a hearing, and for the court to set and hear the matter. Such order could be