Tuesday, October 15, 2019
Opinion Reverses a Determination That the 90-Day Period Within Which to Grant Summary Judgment On a Bail Bond Is Absolute, Without Respect to Whether the Court Is Open on the Last Day
By a MetNews Staff Writer
The statutory period within which a court “may” act cannot terminate on a Saturday, the Appellate Department of the Los Angeles Superior Court has held.
Judge Alex Ricciardulli wrote the opinion, which was filed Aug. 27 and, after the Court of Appeal determined that there was no need to transfer the matter to itself, was posted on Thursday. It reverses an order by Los Angeles Superior Court Judge Michael C. Small vacating a summary judgment against a company that bonded a defendant who fled.
The bond had been forfeited in 2016 by reason of the defendant’s non-appearance. The court granted Financial Casualty and Surety, Inc., the bonding company, extensions within to produce the defendant, the last of the extensions being through July 14, 2017. The following day was a Saturday.
Financial Casualty’s Contention
Summary judgment on the bond was entered on Monday, Oct. 16. Financial Casualty moved for an order vacating that judgment, arguing that Penal Code §1306(c)—which provides that 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”—the court’s action came too late.
Ninety days from July 15, it pointed out, was Saturday, Oct. 14, rendering the Oct. 16 action impermissible, it contended.
The People countered that Code of Civil Procedure §12a(a) says:
“If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.”
Saturdays and Sundays, it specifies, are holidays.
Small declared that “the 90-day period is absolute, beginning with the day after the appearance period expires,” irrespective of whether the day is one on which the court is open.
Ricciardulli disagreed, saying in the opinion reversing Small:
“The statute specifies the 90-day period starts on ‘the date upon which [summary judgment] may first be entered.’ The word ‘may’ indicates that it is possible that an event can occur….It would be absurd to interpret a statute as contemplating the entry of summary judgment on a date the court is closed.”
“Admittedly, appellate opinions have calculated section 1306, subdivision (c)’s 90-day period starting with a Saturday….But, as pointed out by the People, since the issue on appeal in those opinions was not whether the 90-day period could commence on a weekend, they are not controlling or persuasive precedent.”
“We apply the clear words chosen by the Legislature to commence the start of the period, requiring the court ‘to enter summary judgment within 90 days after the date upon which it may first be entered’ on a date the court is open and able to enter the order.”
The case is People v. Financial Casualty and Surety, Inc., BV 032686.
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