People v. American Contractors Indemnity Co.

When a person for whom a bail bond has been posted fails without sufficient excuse to appear as required, the trial court must declare a forfeiture of the bond. (Pen. Code, § 1305, subd. (a). ) The surety that posted the bond then has a statutory “appearance” period in which either to produce the accused in court and have the forfeiture set aside, or to demonstrate other circumstances requiring the court to vacate the forfeiture. If the forfeiture is not set aside by the end of the appearance period, the court is required to enter summary judgment against the surety. (§ 1306, subd. (a).) The issue in this case is whether a summary judgment entered on the last day of the appearance period, or one day prematurely, is void or merely voidable. We also consider whether the surety may collaterally attack the premature judgment 11 months after its entry.

We conclude the premature summary judgment entered here was voidable, and not void. Thus, while it was subject to correction by appeal or a timely motion to vacate the judgment, there is no basis under the circumstances of this case to set it aside by collateral attack once it was final. In particular, here we need not rely on…