Filed 8/24/20 P. v. Lexington National Ins. Corp. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

LEXINGTON NATIONAL 

INSURANCE CORPORATION,

Defendant and Appellant.

 B294515

 (Los Angeles County

 Super. Ct. No. SJ4508)

APPEAL from an order of the Superior Court of 

Los Angeles County, Maame Ewusi-Mensah Frimpong, Judge. 

Affirmed.

Law Offices of Brendan Pegg and Brendan Pegg for 

Defendant and Appellant.

Mary C. Wickham, County Counsel, Adrian G. Gragas, 

Assistant County Counsel, and David D. Lee, Deputy County 

Counsel, for Plaintiff and Respondent.

________________________________
2

Lexington National Insurance Corporation appeals the trial 

court’s order denying its motion to vacate summary judgment 

and to exonerate a bail bond. Lexington contends the judgment 

is void because the superior court had previously exonerated the 

bond and, alternatively, because the judgment at issue had been 

superseded by a later judgment. We affirm.1

FACTUAL AND PROCEDURAL BACKGROUND

The Bond and Forfeiture

On November 12, 2016 Lexington posted a $235,000 bail 

bond for the release of Monica Brown. On November 18, 2016 

Brown failed to appear at a scheduled hearing, and the court 

ordered bail forfeited.

On November 23, 2016 the clerk of the court mailed 

Lexington the notice of forfeiture, advising the contractual 

obligation to pay the bond would become absolute on the 

186th day following the date of the mailing of the notice unless 

forfeiture was set aside and the bond reinstated.

On June 23, 2017 the court granted Lexington’s request for 

an extension of the appearance period to December 20, 2017.

The Motion To Vacate Forfeiture 

On December 20, 2017 Lexington moved to vacate 

forfeiture. The hearing on the motion was held on January 12, 

2018. The parties appeared, and the hearing was continued to 

February 23, 2018. However, the initial minute order for the 

1 An order denying a motion to set aside a summary 

judgment entered against a surety is an appealable order. 

(County of Los Angeles v. Financial Casualty & Surety Inc. (2018) 

5 Cal.5th 309, 314.)
3

January 12, 2018 hearing stated the court had granted 

Lexington’s motion and exonerated the bond. Subsequently, a 

minute order was entered that replaced the initial order and 

corrected it nunc pro tunc to state the hearing on the motion had 

been continued.2 

On January 31, 2018 the People filed an opposition to 

Lexington’s motion. On February 20, 2018 a stipulation was 

entered to continue the February 23, 2018 hearing to a later date. 

The parties appeared on February 23, 2018; and, pursuant to the 

stipulation, the hearing was continued to March 9, 2018.

On March 5, 2018 Lexington filed a reply in support of its 

motion, and on March 7, 2018 the People filed a surreply. 

The parties appeared on March 9, 2018 at which time the 

court denied the motion to vacate forfeiture.

Despite the denial of the motion to vacate forfeiture, on 

March 13, 2018 the clerk of the court mailed a certificate of 

discharge to Lexington stating the bond had been exonerated on 

January 12, 2018.

The Entry of Summary Judgment

On April 5, 2018 the superior court signed a form judgment 

in the amount of $235,000 in favor of the People of the State of 

California against Lexington. The judgment does not indicate 

the date on which it was entered. 

On April 6, 2018 the clerk of the court mailed to Lexington 

a notice of entry of judgment, which stated judgment had been 

entered in the case on April 5, 2018. In addition to Lexington, 

2 The record does not reflect the date the corrected minute 

order was entered; it appears to have been between March 13, 

2018 and April 2, 2018. 
4

the notice was erroneously mailed to the wrong bail agent. On 

May 4, 2018 the clerk of the court entered a minute order stating, 

“Due to clerical error, amended notice of entry of summary 

judgment was sent to all involved parties. Notice [had been] sent 

to [the incorrect bail agent]. Correction has been made.” The 

corresponding notice had the word “Amended” handwritten in the 

body of the notice and stated judgment had been entered on 

April 24, 2018. The notice was otherwise identical to the 

previous notice: It stated it had been filed and entered on 

April 5, 2018 and mailed on April 6, 2018. 

On June 22, 2018 the clerk mailed another notice of entry 

of judgment to Lexington. This notice was captioned “Amended 

Clerks Notice of Entry of Judgment on Forfeited Bond and 

Demand for Payment Reflecting the Correct Judgment Date of 

04/05/18.” The notice stated it had been filed and entered on 

April 5, 2018 and mailed on June 22, 2018. It listed April 5, 2018 

as the “Amended Date Judgment Entered.” The docket does not 

contain a corresponding entry for mailing of this amended notice.

Lexington’s Motion To Vacate Summary Judgment and 

for Exoneration of Bail

On August 17, 2018 Lexington moved to vacate summary 

judgment and exonerate the bail bond. Lexington argued the 

January 12, 2018 minute order stating the bond had been 

exonerated was binding despite the nunc pro tunc correction. 

Accordingly, it argued, the court could not have entered summary 

judgment on a previously exonerated bond. Lexington also 

argued the first amended notice of entry of judgment indicated a 

judgment had been entered on April 24, 2018, which superseded 

the April 5, 2018 judgment. Because the later judgment had 
5

been “lost, misplaced, or found not to exist,” it could not be 

enforced. 

The People opposed the motion, asserting the January 12, 

2018 exoneration of bond and the incorrect notices of entry were 

clerical errors, which the superior court was entitled to correct at 

a later date. Along with its motion the People submitted a copy 

of a form the People’s counsel declared he had retrieved from the 

file for this case kept in the bail bond clerk’s office. The form is 

titled “Case Action Summary (Bond Motion Calendar).” The form 

indicates the case was called on January 12, 2018; and it contains 

the handwritten notation, “cont’d to 2/23/18 [¶] notice waived.” 

At a hearing on October 19, 2018 the trial court denied 

Lexington’s motion. 

DISCUSSION

1. Governing Law and Standard of Review

A bail bond “‘“is a contract between the surety and the 

government whereby the surety acts as a guarantor of the 

defendant’s appearance in court under the risk of forfeiture of the 

bond.”’” (People v. Financial Casualty & Surety, Inc. (2016) 

2 Cal.5th 35, 42.) When a person for whom a bail bond has been 

posted and against whom a criminal complaint has been filed 

fails without sufficient excuse to appear as required, the court 

must declare the bail forfeited. (Pen. Code, § 1305, subd. (a);3

see County of Los Angeles v. Financial Casualty & Surety, Inc. 

(2018) 5 Cal.5th 309, 312; People v. American Contractors 

Indemnity Co. (2004) 33 Cal.4th 653, 657.)

3 Statutory references are to this code.
6

Once forfeiture is declared, the surety that posted the bond 

has a period of 180 days (plus five days for mailing) after the 

clerk of the court mails a notice of forfeiture to move to vacate 

forfeiture and exonerate the bond. (§ 1305, subd. (c)(1); People v. 

American Contractors Indemnity Co., supra, 33 Cal.4th at p. 657.)

Upon a showing of good cause, the court may extend this 

appearance period by no more than 180 days from the date the 

trial court orders the extension. (§ 1305.4; People v. Financial 

Casualty & Surety, Inc., supra, 2 Cal.5th at p. 44.) If the 

forfeiture has not been set aside by the end of the appearance 

period, inclusive of any extension, “the court which has declared 

the forfeiture shall enter a summary judgment against each 

bondsman named in the bond in the amount for which the 

bondsman is bound.” (§ 1306, subd. (a).)

The superior court’s order granting or denying a motion to 

vacate the forfeiture of a bail bond is ordinarily reviewed for an 

abuse of discretion. (People v. The North River Ins. Co. (2018) 

31 Cal.App.5th 797, 804.) When there are factual disputes, the 

trial court’s findings of fact will be upheld under the abuse of 

discretion standard when those findings are supported by 

substantial evidence. (People v. Accredited Surety Casualty Co.

(2014) 230 Cal.App.4th 548, 555.) When the facts are undisputed 

and the matter raised is a question of statutory construction, our 

review is de novo. (County of Los Angeles v. Financial Casualty 

& Surety, Inc., supra, 5 Cal.5th at p. 314.) We must strictly 

construe the applicable forfeiture statutes in favor of the surety 

to avoid the “harsh results” of forfeiture. (People v. International 

Fidelity Ins. Co. (2018) 20 Cal.App.5th 345, 354; The North River 

Ins. Co., at p. 804.)
7

2. The Court Did Not Err by Denying Lexington’s Motion 

To Set Aside the Summary Judgment

Lexington argues on appeal, as it did in the trial court, that 

the court was bound by the January 12, 2018 minute order and, 

alternatively, that the amended notice of entry of judgment 

reflected an April 24, 2018 order, which necessarily superseded 

the April 5, 2018 order. Both arguments are based on the 

premise the January 12 minute order and amended notice were 

judicial errors that must be enforced rather than clerical errors 

capable of correction.

A court has the inherent power, “regardless of lapse of 

time, to correct clerical errors whether made by the court, clerk or 

counsel so that its records will conform to and speak the truth.” 

(Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 506; accord, 

People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66, 

77-78; In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 

151.) “While a court has power to set aside judgments and orders 

inadvertently made which are not actually the result of the 

exercise of judgment, it has no power, having once made its 

decision after regular submission, to set aside or amend judicial 

error except under appropriate statutory procedure.” (Bastajian 

v. Brown (1941) 19 Cal.2d 209, 214; accord, Bell v. Farmers Ins. 

Exchange (2006) 135 Cal.App.4th 1138, 1144 [“It is elementary 

that ‘[a] court can always correct a clerical, as distinguished from 

a judicial error which appears on the face of a decree by a 

nunc pro tunc order. [Citation.] It cannot, however, change an 

order which has become final even though made in error, if in fact 

the order made was that intended to be made’”].) 

“The test which distinguishes clerical error from possible 

judicial error is simply whether the challenged portion of the 
8

judgment was entered inadvertently (which is clerical error) 

versus advertently (which might be judicial error, but is not 

clerical error). [Citation.] Unless the challenged portion of the 

judgment was entered inadvertently, it cannot be changed post 

judgment under the guise of correction of clerical error.” (Tokio 

Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 

75 Cal.App.4th 110, 117; see also Bowden v. Green (1982) 

128 Cal.App.3d 65, 71 [“[a] clerical error in a judgment is an 

inadvertent one made by the court which cannot reasonably be 

attributed to the exercise of judicial consideration or discretion”].) 

Accordingly, error is clerical “[w]hen a signed judgment does not 

reflect the express judicial intention of the court.” (In re 

Marriage of Kaufman, supra, 101 Cal.App.3d at p. 151; see also 

Hamilton v. Laine (1997) 57 Cal.App.4th 885, 890 [“‘[t]he 

question presented to the court on a hearing of a motion for a 

nunc pro tunc order is: What order was in fact made at the time 

by the trial judge?’”].)

Lexington cites nothing in the record to support its 

contention the January 12, 2018 exoneration of bond was an 

exercise of judicial discretion. Nor has it offered any legal basis 

upon which the bond could have been exonerated. Further, 

Lexington, represented by counsel at the January 12, 2018 

hearing, does not dispute the matter was simply continued 

during that hearing. Lexington, in fact, admitted as much in its 

motion to vacate summary judgment; and its counsel stated 

during the hearing that his “reaction was to assume [the 

exoneration of bail] was a mistake.” Regardless, Lexington 

argues it is entitled to the presumption the minute order of 

January 12, 2018 is correct and, quoting People v. Surety Ins. Co.
9

(1973) 34 Cal.App.3d 444, 447, asserts a “surety should be able to 

rely on the entries in the clerk’s minutes.” 

Lexington is correct that “the general rule is that, faced 

with a silent record, an appellate court will presume that the 

trial court performed its duty and acted in the lawful exercise of 

its jurisdiction.” (People v. Allegheny Casualty Co. (2007) 

41 Cal.4th 704, 715.) Here, however, the record is not silent. 

Between entry of the initial January 12, 2018 minute order 

purportedly exonerating the bond and the time Lexington states 

it learned of the purported exoneration on March 12, 2018, the 

parties filed multiple briefs, including Lexington’s reply brief, 

filed a stipulation to continue a hearing and appeared twice 

before the same judge who had purportedly entered the 

exoneration. 

This record is inconsistent with an inference the 

exoneration in the initial January 12, 2018 minute order was the 

product of express judicial intention. Had the court purposefully 

exonerated the bond, it would be nonsensical for it to continue to 

receive briefing, hold multiple hearings and ultimately contradict 

itself by denying the requested relief. This conclusion is 

reinforced by the handwritten notes of the January 12, 2018 

hearing in the clerk’s case file stating the matter has been

continued. The only reasonable interpretation of this sequence of 

events is that the first January 12, 2018 minute order was 

entered inadvertently.4 (Cf. Bowden v. Green (1982) 

128 Cal.App.3d 65, 71 [whether an error is judicial or clerical is 

4 The clerk’s issuance of a certificate of discharge does not 

change this analysis. Lexington has not argued the issuance was 

anything other than a ministerial act performed by the clerk 

based on the erroneous minute order.
10

an issue of “‘the judge’s intent, and the best evidence is the 

judge’s own statement, either express or implied from the order of 

correction’”].) In sum, substantial evidence supports the 

conclusion the minute order stating the bond had been 

exonerated was an inadvertent clerical error that could be 

corrected at a later date. (See People v. Aegis Security Ins. Co.

(2005) 127 Cal.App.4th 569, 573 [when reporter’s transcript 

indicated bail bond had been forfeited but minute order stated 

bond would be forfeited at a later date, “[s]uch a discrepancy 

amounts to a clerical error that may be corrected nunc pro tunc 

on the court’s own motion or at the request of a party”]; Ames v. 

Paley (2001) 89 Cal.App.4th 668, 674 [“because the trial court 

intended to enter judgment pursuant to the settlement 

agreement, to the extent the judgment failed to conform to the 

terms of the settlement agreement, the trial court retained the 

inherent power to correct the judgment nunc pro tunc some 

three months after entry of the judgment”]; County of Orange v. 

Allied Fidelity Ins. Co. (1984) 161 Cal.App.3d 510, 512 [vacating 

summary judgment entered after court had mistakenly failed to 

set aside bond forfeiture].)

Likewise, the incorrect dates contained in the notices of 

entry of judgment sent to Lexington were clerical errors that 

were properly corrected. Lexington has cited no evidence or 

authority supporting its argument that the mention of an 

April 24, 2018 judgment in one of the notices necessarily means 

such a judgment exists. The only reasonable conclusion given the 

totality of the circumstances is that the date was a clerical error. 
11

DISPOSITION 

The order denying Lexington’s motion to vacate summary 

judgment and to exonerate the bond is affirmed. The People are 

to recover their costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

DILLON, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.