Date: 07-18-2017

Case Style: County of Los Angeles v. Allegheny Casualty Company

Case Number: B268667

Judge: P.J. Bigelow

Court: California Court of Appeals Second Appellate District Division Eight on appeal from the Superior Court, Riverside County

Plaintiff's Attorney: John Rorabaugh and Crystal Rorabaugh

Defendant's Attorney: Mary C. Wickman, Ruben Baeza, Jr. and Joanne Nielsen

Description: Under Penal Code section 1305.4,1 a surety may move to
extend a defendant’s appearance period by 180 days upon a
showing of good cause. The trial court in this case granted an
extension of 174 days, but denied a second extension motion.
On appeal, Allegheny Casualty Company argues it is entitled to
an extension for the remaining six days. Because more than 180
days had passed by the time of the hearing on Allegheny’s second
motion for extension, however, we conclude the trial court lacked
the authority to order a further extension and properly denied
the motion. (People v. Financial Casualty & Surety, Inc. (2016)
2 Cal.5th 35 (Financial Casualty).) We affirm the judgment.
PROCEDURAL HISTORY
Allegheny, through its agent, Nelly’s Bail Bonds,2 posted
three bonds on September 12, 2014, for the release of codefendants
Jesse Ortega, Antonio Delgado, and Sergy
Vagramian, who were charged with extortion in violation of
section 520. None of the co-defendants appeared for arraignment
on October 10, 2014, and bail was ordered forfeited. Notices of
forfeiture were mailed to Allegheny on October 14, 2014,
specifying the appearance period for each co-defendant would end
on April 17, 2015. On April 14, 2015, Allegheny moved to extend
the appearance periods under section 1305 to October 10, 2015.
On April 23, 2015, the motions were granted and the appearance
periods were extended 174 days to October 14, 2015, which was
365 days after the notices of forfeiture were mailed.

1 All further section references are to the Penal Code unless
otherwise specified.
2 For ease of reference, we will refer to Nelly’s Bail Bonds
and Allegheny collectively as Allegheny.
3
On October 13, 2015, Allegheny again moved to extend the
appearance periods “on the grounds of Penal Code § 1305,
§ 1305.4, and that the court lost jurisdiction over the bond.”
Allegheny calendared the motions for a November 6, 2015
hearing.
At the hearing on November 6, Allegheny’s counsel clarified
it was seeking an additional 10 days after the “initial 170 day
extension from the date of the order granted in those cases.”3
The People opposed, contending that existing case law4 supported
a holding that the surety had no more than 365 days after the
bonds were forfeited to exonerate the bonds. October 14, 2015
was 365 days after the notices of forfeiture were mailed. After
extensive argument, the trial court denied the motions on the
ground that the appearance period had expired, reasoning,
“the pendency of this motion would not have tolled the clock.”
Allegheny timely appealed in each case on November 20, 2015,
and the appeals were consolidated. On November 23, 2015,
notices of summary judgment were mailed to Allegheny.

3 Allegheny submitted proposed orders reflecting an
extension to October 10, 2015, which the trial court signed.
However, the court’s own case summaries show the extension for
each defendant was actually granted to October 14, 2015. As a
result, Allegheny erroneously requested a 10-day extension for
Delgado and Ortega. This confusion has extended to the appeal,
as we note below.
4 At the time of the hearing, the California Supreme Court
had taken up two cases addressing the issue of how to calculate
extensions of the appearance period. Since the appeal, the high
court has published its opinion on this issue, Financial Casualty,
supra, 2 Cal.5th 35, which we discuss below.
4
DISCUSSION
Allegheny contends it was “deprived of 6 days of time that
could have been used to locate these defendants.”5 Thus, it seeks
an additional six-day extension of time on the bonds, which would
result in an extension on Vagramian’s bond and exoneration of
the bonds for Ortega and Delgado.
6 We conclude no additional
time was available to Allegheny.
I. Standard of Review and Statutory Scheme
Because the pertinent facts are uncontested, the standard
of review we apply to the trial court’s interpretation of the
statutory scheme is de novo. (People v. Fairmont Specialty Group
(2009) 173 Cal.App.4th 146, 151.)
A surety acts as the guarantor of a defendant’s appearance
in court by posting a bail bond, which is subject to forfeiture if the
defendant fails to appear. (People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 657.) Once the clerk of the
court mails a notice of forfeiture for the defendant’s failure to
appear in court, the surety has 185 days (180 days plus five days
for mailing) to ensure the defendant’s attendance. (§ 1305, subd.

5 There is some confusion as to how many extra days
Allegheny seeks on appeal. In its opening brief, for example,
it contends it is entitled to an additional 11-day extension and
three pages later, contends it was deprived of an additional six
days. At oral argument, Allegheny’s counsel confirmed it sought
an additional six days. There are 174 days between April 23,
2015 and October 14, 2015. Given our determination that the
appearance period had expired, however, a precise calculation is
unnecessary.
6 During the pendency of the appeal, Ortega appeared in the
underlying case on February 17, 2016, and Delgado appeared on
May 11, 2016.
5
(c).) If the defendant appears within that time, commonly known
as the appearance period, the court must vacate the forfeiture
and exonerate the bond. (§ 1305, subd. (c)(1).)
A surety may seek to extend the appearance period by
filing “a motion, based upon good cause, for an order extending
the 180-day period provided in . . . section [1305]. The motion
shall include a declaration or affidavit that states the reasons
showing good cause to extend that period. The court, upon a
hearing and a showing of good cause, may order the period
extended to a time not exceeding 180 days from its order.
A motion may be filed and calendared as provided in subdivision
(j) of Section 1305. In addition to any other notice required by
law, the moving party shall give the prosecuting agency a written
notice at least 10 court days before a hearing held pursuant to
this section as a condition precedent to granting the motion.”
(§ 1305.4.)
Subdivision (j) of section 1305, provides: “A motion filed in
a timely manner within the 180-day period may be heard within
30 days of the expiration of the 180-day period. The court may
extend the 30-day period upon a showing of good cause.
The motion may be made by the surety insurer, the bail agent,
the surety, or the depositor of money or property, any of whom
may appear in person or through an attorney.” Thus, subdivision
(j) provides a tolling period of 30 days or more in which a timely
motion for extension may be heard. The primary question in this
case is whether subdivision (j) of section 1305 applies to all
motions to extend, regardless of how many individual extensions
the court orders. If it does, it appears a trial court may order the
period extended to a time which exceeds 180 days from its initial
order.
6
We are guided in our review of the statutory language by
the California Supreme Court’s recent decision in Financial
Casualty, supra, 2 Cal.5th 35, which addresses how to calculate
an extension to the appearance period. There, notice of forfeiture
was mailed to the surety and the bail agent when the criminal
defendant failed to appear as required. Five days before the
expiration date of the initial 185-day appearance period, the
surety filed a motion for extension pursuant to section 1305.4.
The trial court granted the motion and extended the appearance
period to August 1, 2013. (Id. at p. 40.) On August 1, 2013, the
surety filed a second motion for an extension. The motion was
heard and denied on August 26, 2013, in part because the trial
court believed the total allowable extension time had run out.
It entered summary judgment on the bond on September 4, 2013.
(Id. at pp. 40-41.)
The high court rejected the People’s argument that the
maximum total allowable appearance period was the 185-day
original period plus 180 days of extension, for a total of 365 days,
running from the notice of forfeiture. (Financial Casualty, supra,
2 Cal.5th at p. 43.) Instead, the court held section 1305,
subdivision (j), allows the extension motion to be heard up to 30
days after the end of the appearance period, and the hearing may
be continued to a later date for good cause. (Id. at pp. 44-45.)
Under the plain language of section 1305.4, which allows
the trial court to order an extension of up to 180 days “from its
order,” the extension period runs from the date of the extension
order rather than from the date of expiration of the original
appearance period. (Financial Casualty, at pp. 45-46.) The court
found “that the ‘order’ referred to in section 1305.4’s limit of
extensions to 180 days ‘from its order’ is the first order extending
7
the period, rather than any subsequent order, and that the total
allowable extension is thus limited to 180 days from the date of
the first extension order, regardless of how many individual
extensions the court orders.” (Financial Casualty, supra,
2 Cal.5th at p. 46, fn. 2.)
Thus, “[t]he maximum extension that could have been
ordered was for 180 days from that date [of the first extension
order], ending on September 16, 2013. When the court heard the
surety’s second extension motion on August 26, 2013, therefore,
it had the authority to order a further extension through
September 16.” (Financial Casualty, supra, 2 Cal.5th at p. 46.)
II. The Appearance Period Had Expired
Given the high court’s holding in Financial Casualty, it is
apparent the date with which we are most concerned is April 23,
2015, the date of the first extension order. Following the high
court’s analysis in Financial Casualty, the maximum extension
that could have been ordered was for 180 days from that date,
that is, October 20, 2015. As a result, we find that when the trial
court heard Allegheny’s second extension motion on November 6,
2015, it lacked the authority to order any further extensions.
We acknowledge that the Financial Casualty court did not
expressly state that subdivision (j) of section 1305 did not toll the
time period for subsequent extension motions to be heard.
However, it is apparent that is what it intended. We are
persuaded of this by two provisions in the opinion. First, the
court concluded that the trial court “had the authority to order a
further extension through September 16 [180 days from the first
extension order].” (Financial Casualty, supra, 2 Cal.5th at p. 46.)
If the court intended to apply the 30-day provision in subdivision
(j) to a second motion to extend, it would have calculated the end
8
date differently and provided 30 or more days for a hearing.
Instead, it chose a date certain that was 180 days from the first
extension order without regard for additional hearings under
subdivision (j).
Our conclusion is supported by the court’s statement that
“the total allowable extension is thus limited to 180 days from the
date of the first extension order, regardless of how many
individual extensions the court orders.” (Financial Casualty,
supra, 2 Cal.5th at p. 46, fn. 2.) Allegheny characterizes this
statement as nonbinding dicta. However, “[e]ven if properly
characterized as dictum, statements of the Supreme Court should
be considered persuasive.” (United Steelworkers of America v.
Board of Education (1984) 162 Cal.App.3d 823, 835.)
Additionally, such dictum should be followed where it
demonstrates a thorough analysis of the issue or reflects
compelling logic. (Ibid.) We find the Supreme Court’s analysis
on this issue in Financial Casualty to be both thorough and
compelling.
Further, section 1305.4 specifies that the trial court may
order an extension “not exceeding 180 days from its order.”
If subdivision (j) applied to add 30 days or more after the
expiration of the 180-day extension period, the extension would
necessarily exceed 180 days. Thus, we are convinced that the
court meant what it said—the maximum extension period is 180
days from the first extension order. Applying those principles
here, it is apparent the trial court properly denied the motion
when it heard the matter on November 6, 2015, which is 197 days
from the first extension order.
7

7 Allegheny argues this interpretation of the statutory
scheme creates an unnecessary ambiguity in the jurisdictional
9
We are not persuaded to disregard Supreme Court
authority by relying on cases cited by Allegheny: People v.
United States Fire Ins. Co. (2015) 242 Cal.App.4th 991 (United
States Fire), People v. Accredited Surety & Casualty Co., Inc.
(2006) 137 Cal.App.4th 1349 (Accredited), or County of Los
Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th
944 (Williamsburg). None of these cases decide the issue at
hand.
In United States Fire, the court held an extension of time
under section 1305.4 was measured from the date of a trial
court’s order granting an extension motion. (United States Fire,
supra, 242 Cal.App.4th at p. 1003.) Because the 180-day period
had not yet expired, the court held that summary judgment was
premature when entered against the surety while its extension
motion was pending. In reaching its conclusion, the court
expressly declined to decide whether the gap of time from the
expiration of the first extension motion until the determination of
the second extension motion would itself be counted as part of the
appearance period or not. (Id. at pp. 1009-1010.)

timelines to enter summary judgment under section 1306,
subdivision (c). As an initial matter, this argument was raised
for the first time in the reply brief and we need not consider it.
(REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th
489, 500.) In any case, we fail to see the ambiguity. Section
1306, subdivision (c), requires summary judgment to be entered
“within 90 days after the date upon which it may first be
entered.” If a trial court grants an extension that is less than 90
days, the date upon which summary judgment may first be
entered is the expiration of the extension period, unless a further
motion is timely filed and heard. At the latest, summary
judgment must be entered within 90 days after 180 days had
passed from the first extension order.
10
The United States Fire court noted, however, that the
disposition in Williamsburg arguably supported not counting the
time gap. In Williamsburg, the court held the surety was entitled
to an oral hearing on its second motion for extension, which had
been summarily denied by the trial court on the same day it was
filed. (Williamsburg, supra, 235 Cal.App.4th at p. 954.) It thus
directed the trial court in its disposition to hold a full hearing on
the section 1305.4 motion following remand and, if the trial court
were to grant the motion, it was to order the appearance period
extended by a maximum of nine days (i.e., the remainder of the
180-day period under § 1305.4) from the date of the trial court’s
order granting such motion. (Williamsburg, at p. 956, fn. 14.)
We reject Allegheny’s argument that Williamsburg’s disposition
is persuasive because the Financial Casualty court cited it and
United States Fire with approval. Financial Casualty merely
noted that it agreed with Williamsburg’s and United States Fire’s
holding that the maximum extension is 180 days from the date of
the first extension order. (Financial Casualty, supra, 2 Cal.5th at
pp. 45-46.)
The disposition in Williamsburg, in any event, did not
address the issue at hand, whether the surety was entitled to an
additional 30 or more days under section 1305, subdivision (j),
plus the nine remaining days under section 1305.4. It did note in
the opinion that the surety “could only obtain a maximum
extension of 180 days [citations], [thus] its second motion to
extend, filed on July 22, 2013, could have extended the period for
no more than nine days.” (Williamsburg, supra, 235 Cal.App.4th
at p. 951, fn. omitted.) This language comports with the holding
in Financial Casualty establishing that the maximum extension
period is 180 days, regardless of how many individual extensions
11
are granted and which disregards the 30-day tolling period
specified in subdivision (j) of section 1305.
Accredited likewise fails to address the issue at hand.
There, the court merely concluded the trial court abused its
discretion in denying a section 1305.4 motion because the surety
demonstrated good cause to extend the forfeiture period.
(Accredited, supra, 137 Cal.App.4th 1356.) Because the
defendant was arrested within 180 days of the order denying the
extension, the summary judgment was vacated and the bond
exonerated. (Id. at p. 1360.) Contrary to Allegheny’s contention,
Accredited does not stand for the proposition that bail may be
exonerated when a defendant has been returned to custody
during the pendency of the appeal. Both Ortega and Delgado
were returned to custody well after the 180-day extension, unlike
in Accredited.

Outcome: The judgments are affirmed.

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