California Case Laws
Click on the below to read California Case Laws for the following years:
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
California Case Law 2012
In People v. Bankers Insurance Co., Case No. A131444 (Cal.App. August 16, 2012) the defendant failed to appear numerous times and was apparently in Singapore. Each time the court granted continuances and stayed forfeiture of the bond and issuance of a bench warrant pending documentation of the defense counsel’s representations as to the reasons for the defendant’s absence. The trial court eventually did declare the forfeiture and entered summary judgment on the bond. The surety appealed. The surety argued that it was not given notice within 30 days of the first forfeiture. The Court held that notice to the surety was not required when the defendant failed to appear and the forfeiture was declared but stayed. The Court thought such a stayed order was not “entry of forfeiture” pursuant to Penal Code §1305(b). The Court also rejected the surety’s argument that the trial court had to declare forfeiture on any of the numerous failures of the defendant to appear prior to the one when forfeiture was entered. On each date, defense counsel made representations as to the defendant’s alleged illness or injury and the court asked for more information or documentation. The Court held that the trial court was not limited to a single continuance and that “once the trial court has reason to believe that a sufficient excuse may exist, it may continue the matter for a period it deems reasonable.” Finally, the Court rejected the surety’s argument that the bond could not be forfeited on the final occasion because the defendant’s appearance was not required on that date. The court had continued the matter following the defendant’s failure to appear for trial, and pursuant to §1305.1 the defendant’s presence was required on or before the continuance date set by the court. Since the trial court complied with §§1305 and 1306, the entry of summary judgment was in accordance with the surety’s consent and not appealable. The Court of Appeals affirmed denial of the surety’s motion to set aside the forfeiture and dismissed the surety’s appeal from the summary judgment. [Not Published].
In People v. Financial Casualty & Surety, Inc., 2012 WL 3124955 (Cal.App. August 2, 2012) the surety argued that after the bond was written its risk was materially increased by the addition of prior convictions which had the effect of increasing the defendant’s potential punishment. The Court rejected the surety’s argument both based on the language of the bond and precedent. The bond was conditioned on the defendant’s appearance to answer any charge based upon the acts alleged in the complaint. The underlying acts were not changed by the addition of prior convictions. The Court pointed out that the surety cited only an 1869 U.S. Supreme Court case, Reese v. U.S., even though several recent California appellate court cases had squarely rejected its argument. The Court characterized the appeal as wholly without merit and stated, “The County has not raised the issue of frivolous appeal, thus we will not discuss sanctions.” [Not published].
In People v. Lexington National Insurance Corp., 2012 WL 2878178 (Cal.App. July 16, 2012) the trial court granted one 60 day extension of the appearance period. During that extension, the defendant appeared in another county on an unrelated matter and was ordered to serve 90 days in jail. The surety apparently did not know the defendant was incarcerated in the other county, but it moved for a further extension of the appearance period. The trial court denied the motion and entered summary judgment on the bond. The surety appealed, and the Court of Appeals affirmed. The surety argued either that it was an abuse of discretion not to grant the motion to extend the appearance period or that the bond was exonerated as a matter of law under Penal Code §1305(c)(2) when the defendant was arrested in the other county. The Court held that on the information presented to the trial court (which did not include that the defendant was incarcerated) there was no abuse of discretion in denying the motion to extend the appearance period. The Court also held that the defendant’s arrest in the other county did not require exoneration because there was no hold placed on the defendant for the instant case and no evidence the authorities in the other county were aware of the warrant in the instant case. [Not published].
In County of Los Angeles v. North River Insurance Co., 2012 WL 2410958 (Cal.App. June 27, 2012) the maximum appearance period extension expired on July 13, 2010. On that date the surety filed a timely motion to vacate the forfeiture. On August 6 the court denied the motion but sua sponte offered another 90 days extension to the appearance period. The surety accepted the offer but did not recover the defendant. The court entered summary judgment on November 9, which was after expiration of the mandatory 90 day period for entry of judgment under Penal Code §1306(c). The surety moved to set aside the summary judgment as entered in excess of the court’s jurisdiction. The trial court granted the motion, and the County appealed. The Court of Appeal held that the surety was estopped to object to entry of the summary judgment because it had affirmatively consented to the trial court’s unauthorized extension of the appearance period. The Court distinguished between true subject matter jurisdiction and an act in excess of authority in a matter properly before the court. Here, the court had subject matter jurisdiction but should not have extended the appearance period. The surety argued that it had not affirmative sought the error and so was not estopped to object to it. The Court disagreed and held that having affirmatively consented to the offer of an additional 90 day extension the surety “should not be permitted to manipulate or trifle with the trial court by challenging the extension’s validity.” [Not published].
In People v. Financial Casualty & Surety, Inc., Case No. E053761 (Cal.App. June 15, 2012) the defendant failed to appear. During the initial appearance period, an investigator for the district attorney’s office asked the surety’s investigator temporarily to “back off” from efforts to recover the defendant because the FBI was involved. The trial court found that this justified extending the appearance period, but the defendant was not recovered and the court entered summary judgment on the bond. The surety appealed and argued that the request to “back off” prevented it from recovering the defendant. The Court rejected the surety’s argument. The facts did not fit within Penal Code §1305, and the State did not prevent the surety from locating the defendant and returning him to court. [Not published].
In People v. Accredited Surety & Casualty Co., Case No. F061649 (Cal.App. June 13, 2012) affirmed summary judgment against the surety. After posting bond, the defendant was ordered to have a mental competency evaluation pursuant to Penal Code §1368. The criminal proceedings were suspended. After several appearances, the defendant failed to appear for a hearing in the §1368 proceeding, and the court forfeited the bond. The surety argued that the bond did not cover appearance in the mental competency proceeding. The Court rejected the surety’s argument and concluded, “an order to appear at a competency hearing to determine whether the defendant can be tried on the charges covered by the bail bond is an appearance guaranteed by the bail bond. Therefore, the trial court has jurisdiction to declare a bond forfeited when the defendant fails to appear at a hearing regarding his or her mental competence to stand trial on the charges covered by the bond.” [Not published].
In People v. Financial Casualty & Surety, Inc., Case Nos. B227986 and B227988 (Cal.App. May 22, 2012) the trial court denied the surety’s timely motion to extend the appearance period and the surety’s motion for reconsideration. There was no dispute that the surety had been diligent in attempting to recover the defendant, but the Court found that the trial court did not abuse its discretion in concluding that there was no reasonable likelihood the defendant would be recovered if the period were extended. The Court also held that the surety’s motion for reconsideration was untimely because it was filed after summary judgment had been entered. The Court affirmed summary judgment against the surety. [Not published].
In People v. Morales, Case No. B231430 (Cal.App. May 22, 2012) the trial court extended the appearance period for 60 days but denied the surety’s request for a further extension and entered a timely summary judgment. The surety appealed and argued that it had shown good cause for the additional extension based on an affidavit from its investigator describing diligent efforts to find the defendant and stating that if granted additional time he was likely to establish the defendant’s location. The Court agreed that the effort had been diligent, but found no reasonable likelihood of capture if the period were extended. Therefore, the trial court did not abuse its discretion in denying a further extension, and the Court affirmed the summary judgment. [Not published].
In County of Orange v. American Contractors Indemnity Co., Case No. G045015 (Cal.App. April 25, 2012) the defendant failed to appear on May 12, 2010. The surety located him and had him arrested in another county. The bench warrant was served on August 11, and the court’s minutes for August 11 reflected the service. The court nevertheless entered summary judgment on December 3. The surety filed a motion on December 27 to set aside the forfeiture and exonerate the bond. The court denied the motion on March 18, 2011, and the surety appealed. The Court of Appeals considered two issues: (1) was the surety’s appeal timely, and (2) was the trial court obligated to exonerate the bond on its own motion upon learning that the defendant was in custody in another county and had been served with the bench warrant.
The Court found that the surety’s appeal was timely. Penal Code §1308 gave the surety 30 days after service of notice of the summary judgment to file its motion to set aside the forfeiture and exonerate the bond. That timely motion was “valid” within the meaning of Rule 8.108(c), and thus extended the appeal period to 30 days following denial of the motion.
On the merits of the appeal, however, the Court held that the surety had to file a motion to set aside the forfeiture and exonerate the bond before expiration of the appearance period, and that its failure to do so barred relief. If the defendant had been arrested within the county where the case was located, the trial court would have been obligated under Penal Code §1305(c)(2) to vacate the forfeiture on its own motion. Since the defendant was in custody outside of the county where the case was located, however, §1305(c)(3) controlled and the surety had to make a timely motion. The trial court was not obligated to act on its own motion even though it knew the defendant was in custody. The Court, therefore, affirmed the summary judgment.
In County of San Bernadino v. Bankers Insurance Co., Case No. E052762 (Cal.App. April 24, 2012) the surety posted two bonds for the defendant, one for a felony charge and one for a misdemeanor. He was released on November 16, 2009, and arrested a few days later in another county. He failed to appear, and the bond was forfeited. The surety moved to extend the 185 day appearance period and showed that the defendant had been in jail in the other county when he failed to appear and represented that he was in prison either in California or Arizona. The trial court denied the motion and in due course entered summary judgment on both bonds. The surety appealed from denial of its motion to extend the appearance period. The Court thought that denial of the motion was not an appealable order but noted that the record included the orders entering summary judgment and treated the appeal as from the summary judgments. The Court also thought that the misdemeanor case was a case of limited jurisdiction from which there was no right of appeal to the Court of Appeals, but since the cases had been handled together in the trial court and the issues were identical, it did not make sense to decide them separately at the appellate level. The Court thought that Rule 8.1002 allowed it to decide them together.
The Court recognized that if the defendant was incarcerated throughout the appearance period, the trial court should toll running of the period as provided in Penal Code §1305(e). In this case, however, the surety had not presented evidence to support its arguments. The Court stated, “According to Bankers’ notice of its motions, Ortega was in custody at the Arizona State Prison. According to its points and authorities, on February 12, 2010, Ortega was moved from Los Angeles to North Kern County State Prison, where he is serving a six-year prison sentence. However, there is no competent evidence to support either of Bankers’ claims.” The Court concluded that the surety did not prove the defendant was incarcerated elsewhere and thus unable to appear. The trial court correctly denied the surety’s motions, and the Court affirmed summary judgment on the bonds. [Not published].
In People v. Pierson, Case No. B235886 (Cal.App. April 10, 2012) the defendant and her brother were both released on bonds posted by the surety through the bail agent. The defendant met her obligations and was close to completing community service and having the charges against her dismissed when her brother absconded. The bail agent surrendered the defendant. She paid for another bond from a different surety. The trial court did not like this, and on its own initiative ordered the bail agent to return the premium pursuant to Penal Code §1300(b). The surety appealed. The Court found that some of the trial court’s statements threatening the bail agent were inappropriate but that the trial court did not abuse its discretion in finding that there was no good cause to surrender the defendant. The Court affirmed the order that the bail agent return the premium. [Not published].
In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., Case No. B231395 (Cal.App. April 5, 2012) the surety provided a $35,000 bond, the amount provided in the bail schedule for the charges against the defendant. The bond required his appearance “to answer any charge in any accusatory pleading based upon the acts supporting the complaint . . . and any duly authorized amendments thereof.” When the complaint was filed it included additional charges and recommended bail of $80,000. The defendant failed to appear for arraignment, and a bench warrant was issued in the amount of $80,000. The bond was forfeited, and eventually summary judgment was entered. The surety moved to set the judgment aside and exonerate the bond because the added charges and higher bail materially increased the surety’s risk. The surety appealed the trial court’s refusal to set aside the judgment. The Court affirmed both because the surety did not provide a reporter’s transcript and because the bond was not void. The bond was correctly set at $35,000 based on the initial charges, and it was not voided because additional charges were filed and the amount increased. The bond language contemplated other charges based on the same underlying acts. [Not published].
In People v. Western Insurance Co., 2012 WL 1071482 (Cal.App. April 2, 2012) the defendant failed to appear, and the surety located him in India. The prosecutor indicated that he would seek extradition, but the extradition process went on past the end of the extended appearance period. The trial court entered summary judgment on the bond, and the surety appealed. The surety argued that the running of the appearance period should be tolled while the prosecutor pursued extradition. The Court noted that Penal Code §1305 provides for tolling if the defendant is temporarily disabled, for an extension of the appearance period not to exceed 180 days, and for exoneration if the prosecutor refuses to seek extradition. The Court thought that in light of this detailed statutory scheme, “a further extension of the appearance period under the guise of equitable tolling is inappropriate.” The Court suggested that the surety’s arguments would be better addressed to the Legislature. [Published].
In County of Los Angeles v. International Fidelity Insurance Co., 2012 WL 956495 (Cal.App. March 22, 2012) the surety argued that judgment on the bond should be set aside for two reasons. First, when bond was set, the trial court also imposed additional conditions for the defendant’s release including that he stay away from the victim, not possess weapons, obey all laws and orders of the court, and not use drugs. The Court held that these additional conditions were not part of the surety’s obligation or of the bond and did not alter the bail contract without the surety’s consent. The surety’s second argument was that a series of amendments to the charges against the defendant increased the surety’s risk and discharged the bond. The Court found that the amendments all arose out of the acts supporting the original charge and the surety had consented to such changes in the bond. The Court affirmed summary judgment against the surety. [Not published].
In People v. International Fidelity Insurance Co., 2012 WL 934772 (Cal.App. March 21, 2012) the defendant was released on a $35,000 bond from another surety. Upon learning that he had several warrants in other matters, the court remanded him to custody and ordered bond at $100,000. The court noted the existing $35,000 bond and stated that it could remain and the defendant could post the balance of $65,000. The surety provided the $65,000 bond, and the defendant was released. When he failed to appear, the court declared forfeitures and sent notices to both sureties. However, the trial court eventually held that the $35,000 bond was exonerated when the defendant was remanded to custody and could not be extended without that surety’s consent. It therefore set aside forfeiture of the $35,000 bond but entered summary judgment on the $65,000 bond. The surety appealed, and the Court of Appeal reversed. The Court reasoned that bond had been set at $100,000 and the $35,000 bond had at that point been exonerated by operation of law. Therefore, the $65,000 bond did not comply with the court’s order and was void. The Court thought that the bond was a contract and here the acceptance did not match the offer so no contract was formed. The Court also thought that the surety “agreed to post an additional $65,000 of a total of $100,000 bail, and it did not receive the benefit of the additional $35,000 of bail being in place.” [Published].
In County of Los Angeles v. International Fidelity Insurance Co., Case No. B229001 (Cal.App. March 15, 2012) the defendant failed to appear at a hearing involving satisfaction of the conditions of his probation. The probation was revoked and a bench warrant issued. After he was arrested, the surety posted bond for his release. The defendant appeared but still had not satisfied any of the conditions of his probation. The court stated that probation remained revoked, suggested the defendant satisfy the conditions, and continued the hearing. At a second hearing the same things occurred. At a third hearing the defendant failed to appear and the court forfeited the bond. In due course a summary judgment was entered and the surety appealed. The surety argued that when the hearing was continued and the defendant instructed to satisfy the conditions of his probation the court effectively reinstated his probation, which exonerated the bond. The Court disagreed, noted that the trial court explicitly stated the probation remained revoked, and held, “The continuances provided Burfford with a little more time to begin complying with his probation conditions and perhaps avoid a formal revocation of his probation, but they did not reinstate his probation. Thus, none of the triggers for exoneration of the bail set forth in section 1195 occurred here.” [Not published].
In People v. Accredited Surety and Casualty Company, Inc., 2012 WL 662171 (Cal.App. March 1, 2012) the defendant failed to appear and notice of bond forfeiture was mailed to the surety. The appearance period expired on September 10, 2010. Prior to that date the defendant was incarcerated in another county, and the court signed an order that he be produced. The surety, however, did not move to exonerate the bond or to toll the running of the appearance period. On October 5 the defendant appeared. Initially, the trial court recalled the bench warrant and reinstated the bond, but on motion of the county the court set aside its October 5 order and entered summary judgment on the bond. The Court of Appeal affirmed. The surety would clearly have been entitled to relief had it filed a motion during the appearance period, but the right to relief was not automatic. The surety could have moved either to exonerate the bond pursuant to Penal Code §1305(c)(3) or to toll the running of the appearance period for a temporary disability pursuant to §1305(e). When the appearance period expired without either motion, however, the court lost jurisdiction to grant relief from the forfeiture. The trial court was correct to recall its void order of October 5 and enter summary judgment on the bond. [Published].
In People v. Accredited Surety & Casualty Co., Case No. E051597 (Cal.App. January 31, 2012) the bond was posted on April 23, 2008. The defendant appeared in court 12 times over the next year. On Friday, April 17, 2009, she and her attorney failed to appear. A substitute attorney represented that the defendant’s attorney was in another branch of the court and that the attorney told her the defendant or someone in her family indicated the defendant was in El Slavador. The court did not forfeit the bond and continued the matter to Monday April 20 so the defendant’s attorney could provide an explanation and whatever reason he had for the defendant’s non-appearance. On April 20 the attorney moved to be relieved as counsel. The record on appeal did not include any explanation by the attorney for the defendant’s failure to appear. The trial court forfeited the bond and in due course entered summary judgment. The surety appealed and argued that the trial court lost jurisdiction to forfeit the bond when it failed to declare a forfeiture on April 17.
In a 2-1 decision the Court of Appeals agreed with the surety and reversed the summary judgment. The majority stated, “we hold that the court must have sufficient information to rationally support the conclusion that proof of a sufficient excuse might be forthcoming. There was no such information, and the trial court’s only option was to order the bond forfeited. Because it failed to do so, it lost jurisdiction over the bond and the bond was exonerated by operation of law.” The dissenting Judge thought that the defendant’s record of appearing 12 times over the course of the prior year was sufficient evidence to justify the brief continuance, and the majority should not have held that the trial court abused its discretion and lost jurisdiction over the bond. [Not published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2012 WL 255878 (Cal.App. January 30, 2012) the defendant had charges pending in two cases. One case charged one count of armed robbery on December 5, 2002, and the other case charged 10 counts related to armed robberies on December 5 and 6, 2002. The defendant failed to appear in 2003 and forfeited a $500,000 bond. He was captured in 2008 and released on his own recognizance in the single count case and on a $625,000 bond in the other case. The cases were then consolidated with the single count added to the other counts in the second case. The defendant failed to appear for trial, and the $625,000 bond was forfeited. The surety appealed denial of its motion to set aside the forfeiture.The surety argued that consolidation of the two cases increased its risk and discharged the bond. The Court rejected the surety’s argument on two grounds. First, although involving a different victim, the armed robbery count consolidated with the other case was related in time and method to the other counts, and the trial court could have concluded that it was a duly authorized amendment of the complaint and so consented to by the surety. Second, the added charge was pending at the time the bond was written and the surety actually or constructively knew about it. Consolidating the cases did not add to the punishment the defendant faced or increase the risk that he would flee. The Court stated that the defendant “was facing the same charges after the consolidation as before and he stood to forfeit the same $625,000 if he failed to appear. Under the circumstances of this case, the inclusion of the Airport robbery count in the Van Nuys case did not materially alter Indiana’s risk therein.” [Published].
California Case Law 2011
In People v. Bankers Insurance Co., 2011 WL 6849092 (Cal.App. December 30, 2011) the defendant failed to appear and the bond was forfeited. During the extended appearance period, the surety located the defendant in Guatemala. The surety contended that the forfeiture should be set aside because the district attorney refused to seek extradition. The district attorney argued that the extradition treaty between the United States and Guatemala did not cover the crimes for which the defendant was charged (crimes related to counterfeit recordings and trademark infringement). The trial court denied the surety’s motion, and the surety paid the bond amount before entry of judgment.
On appeal, the surety argued that the bond should be exonerated because summary judgment was not entered within 90 days of the date on which it first could have been entered. The Court held that Penal Code §1306 limiting the time for entry of summary judgment did not apply to a case in which the bond forfeiture was paid prior to expiration of the 90 day period. The surety also argued that its motion to set aside the forfeiture should have been granted based on the prosecutor’s election not to extradite the defendant. The Court held that there could be no election not to extradite since the extradition treaty did not cover the crimes for which the defendant was charged. Under these circumstances, the prosecutor had no meaningful choice because extradition was not feasible. The Court affirmed denial of the surety’s motion to vacate the forfeiture and exonerate the bond. [Not published].
In People v. Bankers Insurance Co., Case No. H036251 (Cal.App. December 19, 2011) the defendant was arrested for cultivation of marijuana, and the surety posted its bond prior to filing of a complaint. The complaint added a three strike sentence enhancement. When the defendant failed to appear, the court forfeited the bond, but on the surety’s motion set the forfeiture aside because the three strike allegation materially increased the surety’s risk without its consent. The People appealed, and the Court of Appeals reversed.
The bond obligated the surety if the defendant failed to appear “to answer any charge in any duly authorized accusatory pleading based upon the acts supporting the complaint.” Cultivation of marijuana was charged in the complaint. The three strike sentence enhancement was not a new charge even though it substantially increased the potential sentence. The surety had agreed to the risk of the possible sentence enhancement when it wrote the bond. The Court also rejected the argument that a material increase in the surety’s risk without its consent would have discharged the bond. The Court stated, “there is no such common law defense of materially increased risk.” [Not published].
In People v. International Fidelity Insurance Co., Case No. B225994 (Cal.App. November 16, 2011) the Court reversed an order exonerating the bond. Within the appearance period the bail agent located the defendant in Mexico and took him before a local law enforcement officer as required by Penal Code §1305(g). The District Attorney’s office indicated that it would seek extradition, but the process moved very slowly. The trial court set several dates to review progress on the extradition and eventually granted the surety’s motion to exonerate the bond reasoning that it had been a year and the defendant was either going to be extradited or not no matter what the surety did. The Court of Appeals reversed because §1305(g) authorized relief only if the prosecutor refused to extradite. Here the prosecutor had not refused. In fact, he slowly was pursuing extradition. During the appearance period the defendant was not returned to court, and the exception provided by §1305(g) did not apply. Therefore, there was no statutory basis to grant the surety relief and the trial court abused its discretion. [Not published].
In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., 2011 WL 5557380 (Cal.App. November 16, 2011) on February 22, 2010, the last day of the initial appearance period, the surety filed a timely motion to extend the period. The motion was scheduled to be heard on March 24. On March 3 the defendant appeared before the court, and on March 5 pled no contest and was sentenced. The surety’s attorney had a conflict and did not appear for the motion hearing on March 24. The court took the motion for an extension of the docket, and on March 29 summary judgment was entered on the bond. The trial court denied the surety’s motion to set aside the judgment and exonerate the bond, and the surety appealed. The Court thought that the defendant’s appearance and sentencing after expiration of the appearance period was irrelevant. The issue was whether the appearance period should have been extended, and for that issue only events occurring prior to the end of the initial period could be considered. The surety did not submit the extension motion for decision without a hearing, and taking the motion off the calendar was not a denial of due process. The record did not include facts to establish that the surety had shown good cause for an extension. If the defendant had appeared in court within the appearance period, the surety would have been exonerated, but he did not. The period had expired when he appeared on March 3, and on the surety failed to meet its burden of establishing reversible error by the trial court in not extending the period. The Court affirmed the judgment. [Not published].
In People v. Accredited Surety and Casualty Company, Inc., Case Nos. F061160 and F061161 (Cal.App. November 29, 2011) the bail agent made a timely motion to extend the appearance period. Before the motion was heard, the defendant was returned to custody. The trial court granted the motion and exonerated the bond. The County appealed arguing that the motion was not signed by the bail agent or by an attorney representing him, or by any of the other permissible movants under Penal Code §1305(i), and therefore the movant lacked standing to seek an extension. The Court rejected the standing argument because the motion stated that the bail agent was the moving party. The person signing the motion was not an attorney or an employee of the bail agent. He apparently was some sort of paralegal acting as an unlicensed attorney. The County could have moved to strike the motion pursuant to Cal. Code of Civ. Proc. §128.7(a) which requires that every pleading be signed by the party or his attorney. The bail agent then would have had the opportunity to sign the motion, and his signature would have related back to the date the motion was originally filed. The County, however, ignored §128.7 and incorrectly objected to standing. The Court noted that it could remand the case for the trial court to let the bail agent sign the motion but thought that remand would be an idle act serving no substantive purpose. The defendant had been returned to custody, and the County’s only objection was a technicality. Instead of remanding the case to permit correction of the technicality, the Court affirmed the judgment exonerating the bond. [Not published].
In People v. The North River Insurance Co., 2011 WL 5223601 (Cal.App. November 3, 2011) the bail agent filed a timely motion to vacate the forfeiture and exonerate the bond. The motion was scheduled to be heard on February 23, 2010. The agent contacted an attorney to appear at the scheduled hearing, but the attorney did not receive the motion and did not appear at the hearing. When no one appeared, the trial court took the motion off its docket. The bail agent called the court, learned that no one had appeared, and arranged for the motion to be put on the March 2 docket. However, on March 1 the court entered summary judgment on the bond and on March 2 refused to hear the motion because summary judgment had already been entered. On April 6, after the appearance period had expired, the bail agent filed a motion to set aside the judgment pursuant to Cal. Code of Civ. Proc. §473 which allows relief from a judgment entered as a result of mistake, inadvertence, surprise or excusable neglect. The trial court granted the motion. The County did not contest the merits of the agent’s motion, which was granted on July 16, 2010, and appealed only the issue of the application of §473.
The County argued that bail forfeiture is controlled by §§1305 and 1306 of the Penal Code and that §473 did not apply. The Court found that here there was no conflict between the statutes because the bail agent met the time requirements of the Penal Code. It moved for relief before the expiration of the extended appearance period, and the hearing on the motion was scheduled within 30 days of the period’s expiration. The Court recognized that §473 could not extend statutory time periods, but here the bail agent met the Penal Code requirements. The County also argued that §473 should not apply because summary judgments in bail matters are entered by consent. The Court found that §473 could apply to consent judgments and that there was nothing in the language of the section to exclude bail proceedings or consent judgments from its reach. The Court held that the trial court did not err in applying §473 and granting the bail agent’s motion for relief from the summary judgment based on the inadvertent failure of its attorney to appear. [Published].
People v. Safety National Casualty Co., Case No. G044782 (Cal.App. October 13, 2011) the criminal complaint was based on an arrest warrant issued by a Clark County, Nevada court. The defendant failed to appear for arraignment on August 5, but her attorney represented that she was in Nevada trying to resolve the Clark County matter. The court did not forfeit the bond and continued the case to September 15. On September 15 the defendant again failed to appear, and the court forfeited the bond. After summary judgment was eventually entered, the surety appealed arguing that the trial court lost jurisdiction to forfeit the bond when it failed to do so on August 5. The Court disagreed and affirmed the judgment because “On August 5, 2009, the trial court easily had a rational basis to conclude that Simmsdavis had a sufficient excuse for not appearing, namely that Simmsdavis was in Nevada attending to the very matter that had precipitated her arrest in California in the first place.”
In People v. Fairmont Specialty, 2011 WL 4640858 (Cal.App. October 7, 2011) the defendant was charged with only misdemeanors. He failed to appear in court personally seven times, but the trial court accepted appearance on his behalf by his attorney pursuant to Penal Code §977. On the eighth court date, he did not appear and the court forfeited the bond and issued a bench warrant. The surety moved to exonerate the bond or, in the alternative, to extend the appearance period. The trial court denied the motion, and the surety appealed. The surety argued that the trial court’s failure to forfeit the bond when the defendant first failed to appear deprived it of jurisdiction to forfeit the bond. The Court of Appeal thought that the defendant had a sufficient excuse for not appearing in person because §977 permitted his attorney to appear on his behalf and that the trial court’s orders that he appear at each subsequent hearing contemplated appearance either by his attorney or in person. The Court also thought that the declaration submitted by the surety in support of its motion to extend the appearance period did not establish the type of investigation and progress toward recovering the defendant that was present in cases allowing extensions. The trial court did not abuse its discretion in denying the motion to extend the appearance period. [Not published].
In People v. Fairmont Specialty, 2011 WL 4640862 (Cal.App. October 7, 2011) the defendant failed to appear, but her attorney stated that he had been told she was present earlier in the day and had left for unknown reasons. The attorney asked that the warrant be withheld and bail not be forfeited. The trial court did not forfeit the bond. A week later at the continued hearing, the defendant again failed to appear and the court forfeited the bond. The issue on appeal was whether the trial court still had jurisdiction to declare the forfeiture after not forfeiting the bond when the defendant first failed to appear. The Court thought that it was a close case but held that the trial court did not abuse its discretion in finding sufficient excuse for the defendant’s initial failure to appear. The case was called some two hours after court started, and the Court thought the trial court could have inferred the defendant intended to appear but some event forced her to leave before the case was called. [Not published].
People v. Lexington National Insurance Corp., 2011 WL 4640863 (Cal.App. October 7, 2011) held that the trial court should have granted the surety’s motion to extend the appearance period. The Court surveyed cases on the issue and the type of information sureties needed to provide to justify an extension. The Court concluded, “Because Lexington adequately described the efforts it made to locate Gomez and explained why those efforts were unsuccessful, it established good cause for an extension of the exoneration period pursuant to section 1305.4. Lexington also provided sufficient information to conclude that it was likely that Gomez would be returned to custody should the exoneration period be extended. Accordingly, the trial court abused its discretion when it denied Lexington’s motion.” [Not published].
In Montana Bail Bonds, Inc. v. Mark, 2011 WL 4487619 (Cal.App. September 29, 2011) the bail agent sued the defendant and an indemnitor for nonpayment of the bond premium and alleged that under an “oral agreement partially confirmed by written document” the defendants promised to pay premiums, recovery costs, expenses, attorneys fees and other charges in connection with the bond. The bail agent lost, apparently because the court found that there was no enforceable contract. The defendants then claimed attorneys fees for defending the suit pursuant to Cal. Civil Code §1717 which makes contractual attorneys fee provisions mutual. The trial court awarded fees to the defendants, and the bail agent appealed. The Court of Appeal held that §1717 applies whenever the plaintiff sues on a contract that provides for fees even if the ultimate result is a determination that the defendant was not a party to the contract or it was not enforceable. The Court affirmed the order awarding attorneys fees to the successful defendants. [Not published].
In People v. Sharkey’s Bail Bonds, Case No. B226630 (Cal.App. September 19, 2011) the defendant fled to Russia. The surety located him there, but the United States did not have an extradition treaty with Russia, and the District Attorney did not request extradition. The Court held that the prosecutor cannot “elect” whether to seek extradition within the meaning of Penal Code §1305(g) if there is no extradition treaty. The Court rejected the surety’s arguments that the prosecutor could have sought to recover the defendant via informal arrangements with the Russian government. [Not published].
People v. Accredited Surety & Casualty Company, Inc., Case No. D057739 (Cal.App. September 8, 2011) affirmed judgment against the surety. The defendant failed to appear, and on the last day of the extended appearance period the surety moved to toll the time on the forfeiture and exonerate the bond. The surety represented that the defendant was living and working in Mexico, but not that he was in custody there or that he had been brought before a law enforcement official. There was also no evidence that the district attorney had refused to seek extradition. The Court thought that the record on appeal was inadequate because it did not include the proceedings before the trial court on the surety’s motion but that in any case the surety was not entitled to relief because even its representations would not justify relief pursuant to Penal Code §1305(f) or (g). Although forfeitures are disfavored, the surety still had to justify a statutory basis for relief. Here, the surety did not meet the requirements of the statute. [Not published].
In United States v. Gonzales & Gonzales Bonds and Insurance Agency, Inc., 2011 WL 3607790 (N.D.Cal. August 16, 2011) the Department of Homeland Security (DHS) sued the agent and surety on several immigration bonds. The defendants counterclaimed to rescind or cancel DHS’s bond breach determinations on 17 additional bonds and secure refund of the payments already made on those bonds. DHS then moved to remand 11 of the 17 bonds in order to rescind the breach determinations and refund or credit the payments. The court required DHS to submit more information on the 11 bond breach determinations and the reasons it now wanted to reverse them. After considering DHS’s representations and the defendants’ arguments, the court determined that DHS was acting in good faith due to substantial and legitimate concerns about the errors made in its administrative determination that the bonds were breached. The court did not find a pattern of seeking remands to evade judicial review. The court granted the motion to remand the 11 bonds and noted that DHS sought the remand to grant the very relief the defendants requested and after admitting errors for each bond, including many of the errors which the defendants had asserted.
In People v. Indiana Lumbermens Mutual Insurance Co., Case No. E050580 (Cal.App. August 15, 2011) the United States Marshals Service assumed primary responsibility for recovering the defendant and wrote the surety asking that it cease any overt attempts to locate him so as not to jeopardize the federal investigation. The surety submitted an affidavit from its investigator that the Marshals Service threatened prosecution if the surety continued its investigation, but the Court thought the affidavit was contradicted by the letter. The surety appealed denial of its motion to set aside a summary judgment and argued that the judgment was void because the bond was exonerated by operation of law when the federal government prevented it from recovering the defendant. The Court noted that the federal government was not a party to the bond and that the federal government did not prevent the return of the defendant for trial. The surety’s argument was that the federal government prevented it from locating the defendant and so made its performance impossible. The Court stated, “Even if we were to assume that a bond can be exonerated as a result of actions of the federal government which do not result in any form of restraint which prevents the defendant from returning to the jurisdiction, however, we would conclude that the evidence the surety provided does not compel the conclusion that the government’s actions rendered the surety’s performance impossible in this case.” In the absence of a finding by the trial court, the Court presumed that the trial court found the surety did not meet its burden of proving impossibility. [Not published].
In County of Los Angeles v. American Contractors Indemnity Co., Case No. B223780 (Cal.App. August 9, 2011) the defendant was charged with a violation of Penal Code §273.5(a) (willful injury to a cohabitant) and was released on a $50,000 bond. Prior to arraignment, a complaint was filed on the §273.5(a) charge but also added charges of failure to register as a sex offender and failure to file a change of address, and alleged two prior convictions within the meaning of the Three Strikes Law. At the arraignment, the court continued bail at $50,000 even though the new charges would have warranted a higher bond under the bail schedule. Several months later, the defendant failed to appear for a pretrial conference, and the court forfeited the bond. On appeal, the surety argued that the additional charges increased its risk without its consent and exonerated the bond. The Court stated, “American contends that the trial court erred in not exonerating the bail on a common law ground – a material increase in American’s risk based on the increased risk of a nonappearance by Jenkins. But, as stated above, there is no common law defense to a bail forfeiture based on a material increase in the surety’s risk.” The Court then went on to find that under the facts of the case even if there were such a defense it would fail because “American’s risk did not contractually increase.” The Court reasoned that the original charge on which the defendant did not appear was included in the complaint. The Court also noted that the surety was free to monitor the case and surrender the defendant if it believed the bond was no longer adequate to cover the risk of the defendant’s flight. [Published].
In People v. American Surety Co., Case No. E050454 (Cal.App. August 3, 2011) the defendants failed to appear but the court continued the hearing date for five days without forfeiting the bonds upon counsel’s representation that the defendants “didn’t know they had to be here. That’s my understanding.” The surety argued that pursuant to Penal Code §1305(a) the court lost jurisdiction to forfeit the bond when the defendants again failed to appear at the continued hearing. The Court of Appeals disagreed and held that the trial court did not abuse its discretion in finding a sufficient excuse for the initial failure to appear. [Not published.]
In People v. Indiana Lumbermens Mutual Insurance Co., Case No. E050705 (Cal.App. July 21, 2011) the felony defendant twice failed to appear on scheduled trial dates, but his attorney appeared and said he was present for the defendant pursuant to Penal Code §977. He subsequently again failed to appear, and the court forfeited the bond. The surety moved to set aside the forfeiture because when the court failed to forfeit the bond on the prior occasions it lost jurisdiction to forfeit the bond for the later failure to appear. The trial court denied the surety’s motion, and the surety appealed.
There was no written §977 waiver in the file, but the Court assumed that one existed. The Court nevertheless held that the forfeiture should have been set aside. Penal Code §1305(a) requires forfeiture of the bond if a felony defendant fails to appear for trial. Here, although the trial date was continued, the case was scheduled for trial not for a hearing on a motion to continue the trial date. To the extent §977 conflicted with §1305, the more specific §1305 would control. The defendant’s appearance was required for trial, and when he did not appear without sufficient excuse the court had to forfeit the bond. Since it did not, it could not declare a forfeiture later. The Court reversed the trial court and directed that the bond be exonerated. [Not Published.]
In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., Case No. B221528 (Cal.App. July 8, 2011) the defendant failed to appear, and the court revoked bail, forfeited the bond and issued a bench warrant. The clerk’s minute order, however, said that the bond was exonerated. The court duly sent notice of forfeiture to the surety and agent, but the notice had the wrong bond number. The agent checked the file and obtained a copy of the minute order showing that the bond had been exonerated. After the 180 day appearance period, the court corrected the minute order and entered summary judgment against the surety. The surety moved to set aside the judgment, and the trial court granted the motion. The court rejected the surety’s argument based on the error in the bond number but thought it was reasonable for the surety to rely on the minute order and not risk seizing the defendant on a bond that may have been exonerated. The County appealed, and the Court of Appeals affirmed. The Court found that although the statutory requirements for judgment had been met, there were also equitable considerations that justified relief to the surety. The trial court’s decision was reviewed for abuse of discretion and in light of the principle that the law disfavors forfeitures. Under these circumstances, there was no abuse of discretion in setting aside the judgment against the surety. [Not published.]
In People v. Fairmont Specialty Group, Case No. G044077 (Cal.App. July 6, 2011) the surety located the defendant in Mexico and identified him as required by Penal Code §1305(g). The surety was granted the maximum permissible extension of the appearance period plus another six months. The surety moved for further tolling of the appearance period or exoneration of the bond, and the court denied the motion. The surety was not able to show that the district attorney’s office had or had not refused to seek extradition, but in its opposition to the motion the Government stated that the district attorney had elected to extradite the defendant. The Court refused to re-write §1305(g) to equate seeking extradition which has not yet been successful with refusing to seek extradition. The Court also rejected the surety’s argument for equitable relief based on the record in the case which did not include a reporter’s transcript or any proof of bad faith by the district attorney.
The Court did, however, hold open the possibility that in a proper case with a proper record a surety could be entitled to relief if the district attorney did not “refuse” to extradite but also did not take timely action to secure return of the defendant. The Court stated, “we express no opinion as to whether subdivision (g) might indeed apply if the applicable motion were made well before the “one-time” extension was set to expire, and the appellate record were sufficient to show that the prosecutor’s office was simply delaying making a decision in order to have extradition and forfeiture too. Simply put, there may indeed be a case where delay on a decision to extradite will amount to a de facto election not to extradite under section 1305, subdivision (g), and thus the delay will make the statute applicable.” [Not Published].
In People v. Bankers Insurance Co., 2011 WL 2612888 (Cal.App. July 5, 2011) the defendant was charged with transporting 19 pounds of marijuana. After he failed to appear and the bond was forfeited, the surety located him in Mexico and identified him as provided in Penal Code §1305(g). The surety notified the district attorney and moved for either relief from the forfeiture if the district attorney elected not to extradite the defendant or for tolling of the appearance period to allow time for extradition if the district attorney elected to seek extradition. The Government argued that it was not feasible to extradite prisoners from Mexico for such “minor” drug crimes, therefore the district attorney did not have an election to make. The Court agreed that extradition was not feasible and affirmed judgment against the surety. The Court did not reach the issue of tolling while the district attorney made a decision or while the extradition process proceeded since in this case extradition was not feasible.
In County of Los Angeles v. Fairmont Specialty Group, Case No. B222506 (Cal.App. July 5, 2011) the surety timely moved for a second extension of the appearance period. The motion was considered after the first extension had expired. The court denied the motion and entered summary judgment against the surety. The surety filed a motion to set aside the summary judgment as premature. The trial court granted the surety’s motion, and the Government appealed. The Court held that the 90 day period in which summary judgment can be entered starts the day after denial of a timely motion to extend the appearance period, therefore the summary judgment was one day too early. The Court rejected the Government’s argument that the surety’s motion was an impermissible collateral attack on a final judgment. When the surety filed its motion, the 60 day appeal period had not run and the judgment was not final. The Court pointed out that the 90 day summary judgment period also had not run, and the Government could have sought a proper summary judgment after the surety’s motion alerted it to the error in the proceedings.
In County of Orange v. Indiana Lumbermens Mutual Insurance Co., 2011 WL 2206820 (Cal.App. June 7, 2011) the defendant was charged with and convicted of three misdemeanor violations of the Vehicle Code. His appeal was dismissed, and the court ordered him to appear for sentencing. After several continuances his counsel withdrew, and a bond was required and provided. The defendant’s new attorney appeared on the scheduled date, but the defendant did not appear in person. The trial court forfeited the bond and denied the surety’s motions to set aside the forfeiture and exonerate the bond. The surety appealed.
Penal Code §977(a)(1) permitted a defendant charged with only misdemeanors to appear by counsel. One exception was if the court ordered appearance in person, but nothing in the record showed the trial court had entered such an order. In fact, the docket report indicated that the defendant’s presence was waived pursuant to Penal Code §977. The Court of Appeals reversed the orders denying the surety’s motions for relief. [Not published].
In People v. Accredited Surety and Casualty Co., Case No. G043705 (Cal.App. June 3, 2011) the surety obtained an 180 day extension of the appearance period. As the extended period was about to expire, the surety moved to toll the running of the period on the ground that the defendant had been located in Mexico and the District Attorney was going to seek extradition. The trial court denied the surety’s motion and entered summary judgment on the bond. The Court of Appeals affirmed. Penal Code §1305(e) permitted tolling based on a temporary disability, but there was none alleged here. Penal Code §1305(g) permitted exoneration if the defendant was identified and temporarily detained and the District Attorney’s office declined to extradite, but here the defendant was not detained as required by subsection (g) and the District Attorney wanted to extradite. The surety argued that the bond should not have been forfeited because the defendant was available for extradition. The Court rejected that argument and held that, unless §1305(e) applied, the defendant either had to be returned within the appearance period or the District Attorney had to refuse to extradite the defendant after he was detained and identified pursuant to §1305(g). Here neither happened, and the Court affirmed the judgment. [Not published].
In County of Los Angeles v. Financial Casualty & Surety Co., 2011 WL 2152793 (Cal.App. June 2, 2011) the bail agent was told the defendant had been arrested in another state. He told another agent who called the clerk. The agent asked about the status of the bond in “the David Oliver case” and was told the bond had been exonerated. The agents then took no further action. There were two cases for the same defendant, and the bond in the other case had been exonerated. Summary judgment was eventually entered on the bond, and the surety appealed. The Court rejected the surety’s argument that the misinformation from the clerk justified granting equitable relief. The Court thought that the clerk’s information was accurate and that the agent should have specified the case or the bond number or amount. There also was no proof that the defendant actually was incarcerated in another state, just the agent’s declaration of what he was told. The trial court did not abuse its discretion, and the Court affirmed denial of relief from forfeiture of the bond and summary judgment. [Not published].
In People v. Serrano, Case No. F059438 (Cal.App. May 20, 2011) the bail agent moved at a hearing to surrender the defendants but did not present the written bail agreement or sworn evidence to show it had been violated. The defendants opposed the motion but moved for return of the bail premium if surrender were granted. The court permitted the surrender and told the defendants to file a proper motion for return of the premium. The defendants filed a motion. The bail agent opposed it but did not provide any documents or sworn evidence to prove that the defendants breached the bail agreement. The court granted a continuance to allow the bail agent to present evidence, but it did not do so. The court ordered return of the premium, and the agent appealed. The Court affirmed on the ground that the bail agent never introduced competent evidence to prove the bail agreement or the alleged violations committed by the defendants. Therefore, the trial court did not abuse its discretion in ordering return of the premium pursuant to Penal Code §1300(b). The Court declined to impose sanctions as requested by the defendants. Although not meritorious, the appeal was not taken for an improper motive. [Not published].
In People v. Accredited Surety and Casualty Company, Inc., Case No. F060408 (Cal.App. May 11, 2011) the surety moved for an extension of the appearance period. The surety supported its motion with an affidavit from its investigator describing efforts to locate the defendant and expressing the belief that she would be recovered if additional time were granted. Before the motion was heard, the defendant was returned to custody. The court granted the surety’s motion and exonerated the bond. The People appealed.
The Court held that the People could appeal from the order exonerating the bond even though the order granting the motion for an extension of the appearance period was not a final, appealable judgment. The People objected to the supporting affidavit because it was not based on personal knowledge. The Court held that an affidavit supporting a motion for an extension of the appearance period did not have to meet the evidentiary standards for evidence at trial or for an affidavit in connection with a summary judgment motion. Nothing in Penal Code §1305.4 required an evidentiary standard for the supporting affidavit. The People argued that the trial court granted the motion for an extension because the defendant had been recovered. The Court agreed that the trial court could not consider events that occurred after expiration of the original 180 day period, but on the record here the trial court had already indicated its intention to grant the motion before it learned of the defendant’s return. The record before the trial court justified granting the motion to extend the appearance period, and the Court affirmed exoneration of the bond. [Not published.]
People v. Financial Casualty & Surety, Inc., 2011 WL 1589555 (Cal.App. April 28, 2011) held that the trial court did not abuse its discretion in denying the surety’s motion to extend the appearance period. The supporting affidavit from the surety’s investigator described several unsuccessful attempts to locate the defendant, but the Court thought they showed a delay in retaining the investigator, no success in finding the defendant and essentially a hope the police would eventually arrest him. The Court concluded that the trial court’s decision did not exceed the bounds of reason and should be affirmed. [Not published].
People v. United States Fire Insurance Co., 2011 WL 1589554 (Cal.App. April 28, 2011) held that the trial court did not abuse its discretion in refusing to extend the appearance period. The Court noted that events occurring after expiration of the appearance period are not considered in determining whether the surety has shown cause for an extension and concluded, “There are huge gaps in Morgan’s declaration indicating that he did very little for extended periods of time. Nor is there any explanation for the failure to undertake many common sense tasks. The substantial progress made after the expiration of the exoneration period underscores the lack of effort made during the exoneration period.” [Not published].
County of Los Angeles v. American Contractors Indemnity Co., Case No. B219215 (Cal.App. April 14, 2011) affirmed summary judgment on the bond. On the day of arraignment the prosecution filed six special sentence enhancements based on six prior convictions but did not change the charge or the underlying facts on which it was based. The defendant failed to appear, and on the day the extended appearance period expired the court denied the surety’s motion to exonerate the bond and entered summary judgment. The summary judgment was one day premature, and the surety argued that on its direct appeal the judgment had to be set aside. The Court held that the judgment was voidable, not void, and in the absence of a showing of prejudice from the premature entry there was no basis to disturb the judgment. The Court also rejected the surety’s argument that the sentence enhancements increased its risk without its consent. The bond provided that the defendant would appear to answer any charge “based upon the acts supporting the complaint.” Here the only acts alleged were the ones upon which the original charge was based. The surety agreed in the bond to be responsible for the defendant’s appearance to answer charges based on those acts, and so its risk was not increased without its consent. [Not published].
In County of Los Angeles v. American Contractors Indemnity Co., Case No. B219561 (Cal.App. April 14, 2011) the defendant was convicted of driving under the influence of alcohol and given probation. The court revoked his probation and set bail at $50,000. The surety provided the bond, but the defendant failed to appear on the appearance date stated in the bond. The court forfeited the bond. Within the appearance period, an attorney appeared for the defendant and asked that the bench warrant be recalled and a new appearance date set. The court refused, denied the surety’s request to extend the appearance period, and entered summary judgment on the bond. The surety appealed arguing that the appearance of counsel was appearance by the defendant pursuant to Penal Code §977, and the court therefore lost jurisdiction to forfeit the bond. The Court thought that §977 did not apply to this probation case, and all of the grounds to vacate a forfeiture under Penal Code §1305 required the personal appearance, custody, or disability of the defendant. The Court stated, “As the trial court noted, it could not have ordered counsel to jail in place of Closs. Where Closs failed to personally appear when his presence was lawfully required, the trial court properly refused to recall the warrant and never lost jurisdiction over the bond.” The Court affirmed the summary judgment. [Not published].
In County of Los Angeles v. Bankers Insurance Co., 2011 WL 1315401 (Cal.App. April 7, 2011) the surety filed a timely motion to extend the appearance period accompanied by an affidavit explaining its efforts to date and expectation of recovering the defendant if granted the extension. The trial court found that the surety had been diligent but had not shown that the defendant would be located if the extension was granted. The trial court denied the motion but stated that it would vacate the forfeiture if the defendant was returned by a certain date a little over a month away. Without waiting for the court’s date to pass, summary judgment was entered on the bond and the surety appealed. The surety argued that the trial court had granted a de facto extension even though it ostensibly denied the surety’s motion. The Court of Appeals held that the motion had clearly and unequivocally been denied and that the denial was not an abuse of the trial court’s discretion. The Court affirmed the summary judgment.
In People v. Indiana Lumbermens Mutual Insurance Co., Case No. E050297 (Cal.App. March 16, 2011) the defendant executed a waiver of appearance under Penal Code §977. He, therefore, could appear by counsel at certain hearings without being personally present. He was still required, however, to appear at his preliminary hearing, trial and sentencing. He made several motions to continue the preliminary hearing, and the motions were granted on the day the hearing was scheduled. In each instance, he was not present although his attorney was. He appeared at the actual preliminary hearing and trial but failed to appear for sentencing. The court forfeited the bond, and the surety moved to set aside the forfeiture on the ground that his previous unexcused absences required forfeiture at that time and, having failed to declare a forfeiture then, the court lost jurisdiction over the bond and could not forfeit it when the defendant did not appear for sentencing. The Court thought that at each of the initial court dates for a preliminary hearing the case was not called for the preliminary hearing. First, the case was called for the pending motion to continue the preliminary hearing, for which the defendant did not have to be present. Since each of the motions for a continuance was granted, the case was not called for the preliminary hearing. Therefore, he did not fail to appear on those dates. The Court also rejected the surety’s argument that the trial court’s minutes that the defendant was ordered to return “on any and all future hearing dates” meant he had been ordered to appear personally in spite of the §977 waiver. He was present by counsel, and the record did not suggest the court intended to order his personal appearance. [Not published].
In People v. Ontiveros, Case No. D057121 (Cal.App., 4th Dist. March 7, 2011) the defendant was ordered to appear for arraignment on December 22, 2009. The court called the case on December 21. Not surprisingly, neither the defendant nor the surety appeared. The court forfeited the bond and issued a bench warrant. On December 22 the defendant and the surety were in court and asked the court to call the case so the defendant could note his appearance, but the court refused because the clerk could not find the file. The court denied the surety’s motion to vacate the forfeiture. The court reasoned that although the forfeiture on December 21 was erroneous, the defendant did not “appear” on December 22. The surety appealed and the People did not file a brief. The Court reversed the order denying the surety’s motion to vacate. The Court held that the defendant’s failure to appear on December 22 was caused by the trial court’s refusal to call the case rather than by any fault of the defendant. Therefore, the defendant had a “sufficient excuse” for not appearing, and no forfeiture should have been entered. [Not published].
In County of Los Angeles v. Lincoln General Insurance Co., 2011 WL 711850 (Cal.App. March 2, 2011) the surety was granted a 60 day extension of the appearance period based on affidavits from two of its investigators describing their efforts to locate the defendant. The surety made a timely request for a second extension supported by another affidavit. The court denied the request and eventually entered summary judgment. The surety appealed and argued that the trial court abused its discretion in denying the second request. The Court of Appeal disagreed and affirmed the trial court. The trial court looked at both the surety’s efforts to date and the prospects that it would be successful if granted more time. The trial court did not abuse its discretion in denying the request. [Not Published].
In County of Los Angeles v. American Contractors Indemnity Co., 2011 WL 652785 (Cal.App. February 24, 2011) the defendant appeared at three regularly scheduled hearings. At the fourth hearing he did not appear. The defendant’s counsel expressed surprise, but did not offer any excuse for his absence. The court continued the case and did not forfeit the bond. At the next scheduled hearing the defendant appeared and the court reset the pretrial conference. The defendant failed to appear for the conference, and the court forfeited the bond. Notice was mailed to the surety and eventually a summary judgment was entered. The surety appealed from denial of its motion to set aside the judgment and exonerate the bond. The surety argued that the trial court had to forfeit the bond when the defendant first failed to appear without an excuse, and that the failure to do so deprived the court of jurisdiction to forfeit the bond at a later date. The Court held that the trial court had to have only reason to believe that an excuse may exist for the failure to appear and that the defendant’s prior, consistent appearances, and his counsel’s surprise at his non-appearance, were sufficient basis for a belief an excuse might have existed. The Court stated, “The dispositive factor, in our view, is that Castillo made regular court appearances before he missed a court appearance. Upon Castillo’s first miss, the court reasonably could have believed that he may have had a valid excuse.” [Not published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2011 WL 489927 (Cal.App. February 14, 2011) the surety provided the bond but the trial court signed an order pursuant to Penal Code §1275.1 that the defendant not be released pending a determination that the funds used for his bail were not feloniously obtained. The surety was not aware of the §1275.1 order although it was part of the court file. The Sheriff erroneously released the defendant on the bond even though the §1275.1 hearing had not taken place. At the hearing the court expressed doubt about the source of the funds but continued the hearing and allowed the defendant to remain free on the bond. The defendant did not appear at the renewed hearing, and the court forfeited the bond and eventually entered summary judgment. The surety appealed denial of its motion to set aside the judgment. The surety argued that release of the defendant in violation of §1275.1 voided the bond. The Court thought that the intent of §1275.1 was to assure that a defendant did not secure release by using fraudulently obtained funds, not to benefit the surety. The Court held, “We conclude noncompliance with section 1275.1 does not operate to exonerate a surety’s liability and is not a defense to forfeiture on the bail bond.” The surety also argued that the agent did not know about the §1275.1 hold or the hearings in connection with it and would not have written the bond if she did. The Court thought that was the surety’s fault, and not a defense to forfeiture of the bond, since the information was available from the superior court docket and file. [Published].
In People v. Seneca Insurance Co., No. A126642 (Cal.App. January 31, 2011) the defendant was charged with possession of cocaine base and released on bond in July, 2008. He failed to appear for a preliminary hearing in October, 2008, and notice was mailed to the surety. The surety filed a timely motion to set aside the forfeiture and exonerate the bond because the defendant had been arrested on another charge, turned over to immigration authorities and deported. The surety submitted evidence that he was deported to Honduras on November 26, 2008. The trial court granted the surety’s motion, and the People appealed.
The Court of Appeal agreed with the surety that the defendant was unable to appear within the appearance period because he was detained by civil authorities within the meaning of Penal Code §1305(d). The Court acknowledged that the mere fact of deportation does not amount to detention by civil authorities, but here the charge against him would prevent his legal return to the United States. The Court cited federal authority for the proposition that an alien known to have been an illicit drug trafficker is ineligible for entry. The Court noted that the law abhors a forfeiture, and the surety therefore had a relatively low threshold of proof. The Court held that the trial court did not abuse its discretion in granting the surety’s motion. The Court also rejected the People’s argument that the surety had to submit all of its proof within the appearance period. The surety had to make its motion for relief prior to the expiration of the period, and the motion had to be heard within 30 days of the end of the period, but the evidence could be presented at the hearing as long as it was proof of facts that existed during the appearance period. [Not published].
California Case Law 2010
In County of Los Angeles v. Safety National Casualty Corp., 2010 WL 5120866 (Cal.App. December 16, 2010) the Court dismissed the surety’s appeal as untimely. Summary judgment was entered by the trial court on March 11, 2009. On April 16 the surety moved to set aside the judgment. On September 25 the court denied the motion. On October 20 the surety appealed from denial of its motion and from the summary judgment. The Court found that under California Rules of Court 8.108(c) the time to appeal was extended by the surety’s post judgment motion to vacate the judgment. The time extension, however, was not unlimited. The applicable cut off was 180 days after entry of the judgment, which was September 7, 2009. Since that was a holiday, the surety had until September 8 to file its notice of appeal. Because the Surety did not meet that deadline, even though its motion was still pending on that date, its appeal was untimely. The Court rejected the surety’s arguments that denial of its motion to set aside was independently appealable or that the trial court’s judgment was void and could be set aside at any time. [Not Published].
In People v. Fairmont Specialty Group, 2010 WL 5064171 (Cal.App. December 13, 2010) there was some confusion because the defendant’s case was consolidated with another case involving the same underlying facts and another person. The defendant failed to appear at the morning session on January 29, and the court declared a forfeiture and issued a bench warrant. The defendant appeared that afternoon, however, and his attorney said that the clerk had told the attorney the case was scheduled for the afternoon session and he had so informed the defendant. The court then recalled the warrant. The official minute orders did not state that the bail was forfeited or a warrant issued, and no notice was sent to the surety or its agent. The defendant failed to appear at a later date, and a summary judgment was eventually entered. The surety appealed denial of its motion to set aside the forfeiture and exonerate the bond. The surety argued that the trial court should have given the surety notice pursuant to Penal Code §1303 when the bond was transferred to a new case and that the trial court lost jurisdiction to forfeit the bond when the clerk failed to mail notice of the original forfeiture on January 29. The Court held that §1303 did not apply because the original charges were not dismissed and then re-filed in a new case. The bond contemplated new charges arising out of the same facts, and here the amended complaint in the consolidated cases did not add any facts that were not alleged in the original case. The original case remained. It was just consolidated with a case of another defendant. The Court also held that no notice of the January 29 forfeiture was required because it did not appear in the official minutes of the court’s proceedings. The trial judge could change his mind until there was an official entry, and here the Court found, in effect, that the initial forfeiture did not officially take place so there was nothing about which to notify the surety. This seems to contradict a number of other cases in which the reporter’s transcript, rather than the clerk’s minutes, was the best evidence of whether a forfeiture was declared. [No published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 4924767 (Cal.App. December 6, 2010) the defendant posted bond and was ordered to appear for arraignment on October 21. He appeared as ordered, but the complaint had not yet been filed. The trial court continued the arraignment to December 2. The complaint was filed on November 14. Later in the proceedings the defendant failed to appear and the bond was forfeited. Penal Code §1305(a) provides that the court shall not have jurisdiction to declare a forfeiture, and the bond shall be released, if no complaint is filed within 15 days from the date of arraignment. The Court held that the 15 day period started on the date initially set for arraignment, and that start date could not be extended by the trial court. Thus, the complaint on November 14 was filed after the 15 day period had run. The trial court lost jurisdiction to forfeit the bond when the 15 day period expired, and the judgment against the surety was reversed. The Court recognized that public policy might be better served by allowing the trial court to continue the arraignment and still retain jurisdiction over the bond, but it thought that was not what §1305(a) said. The Court concluded, “The Legislature may amend the statute if it finds that the current language does not comport with its intentions.” [Published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 4730763 (Cal.App. November 23, 2010) the defendant failed to appear and the bond was forfeited. During the appearance period, the defendant was taken into custody in another county and a hold was placed on him in connection with the bonded charge. The surety, however, did not move to vacate the forfeiture until after the appearance period expired. The trial court granted the surety relief, and the State appealed. The Court found that it was bound by the Supreme Court decision in People v. Indiana Lumbermens Ins. Co., 49 Cal.4th 301 (Cal. 2010) and reversed the trial court. The surety would have been entitled to relief had it filed a timely motion, but unlike a defendant returned to custody in the county where the charges were pending, relief if the defendant was in custody in another county was not automatic. The surety had to file its motion before the appearance period expired. [Not Published].
In People v. American Contractors Indemnity Co., 2010 WL 4740303 (Cal.App. November 23, 2010) the defendant twice failed to appear and the court continued the case without forfeiting the bond. He later again failed to appear and the court declared a forfeiture and eventually entered summary judgment. The issue on appeal was whether the trial court had reason to believe that the defendant had a sufficient excuse for not appearing when it continued the case without forfeiting the bond. The Court recognized that representations by defense counsel can provide such a reason, but here the record was silent as to any basis for the trial court to find a sufficient excuse. Therefore, the trial court lost jurisdiction to forfeit the bond and the summary judgment was reversed. [Not Published].
In People v. Lexington National Insurance Co., 2010 WL 4400524 (Cal.App. November 8, 2010) the defendant failed to appear for sentencing. The surety located him in custody in Chechnya and advised the District Attorney. The United States did not have an extradition treaty with Chechnya. The trial court vacated the forfeiture and exonerated the bond because the surety had done everything it could to produce the defendant and, weighing the equities of the case, the surety was entitled to relief. The People appealed and the Court of Appeal reversed. The Court agreed that there could be no “election” not to extradite under Penal Code §1305(f) or (g) if there was no extradition treaty and so no reasonable possibility of extradition. The surety took the risk of the defendant’s flight when it provided the bond to a Russian citizen, and the prosecutor was without fault in the defendant’s absence. The Court distinguished People v. Far West Ins. Co., 93 Cal.App.4th 791 (2001) on the ground that here there was no Government involvement or fault. The Court held that the equities did not favor the surety and the trial court abused its discretion in vacating the forfeiture. [Published.]
In People v. Seneca Insurance Co., Case No. G043026, Fourth Dist., Division 3 (Cal.App. October 28, 2010) the defendant fled to Korea. When he failed to appear, the trial court declared a forfeiture and notice was properly mailed starting the appearance period. The surety’s agent flew to Korea, located the defendant, and brought him before the Korean police in accordance with Penal Code §1305(g). The prosecutor was informed. If the prosecutor had extradited the defendant back to California within the appearance period, the bond would have been exonerated by his appearance. If the prosecutor had elected not to seek extradition, §1305(g) would have required the court to vacate the forfeiture and exonerate the bond. The prosecutor did neither. The Court held that summary judgment was properly entered against the surety because “A bail bond is not exonerated simply because the People have not completed (or even initiated) extradition of the defendant before the end of the bond exoneration period.” The Court noted that here there was no evidence of a bad faith delay by the prosecutor and that the surety’s arguments as to policy and fairness should be addressed to the Legislature. The Court rejected the surety’s argument for equitable tolling of the appearance period by finding that a temporary disability as set out in §1305(e) was the only basis for such tolling, and here there was no temporary disability.
In People v. American Contractors Indemnity Co., 2010 WL 3734858 (Cal.App. September 27, 2010) the defendant failed to appear on April 18, 2008, and notice was promptly mailed. The appearance period expired on October 20, 2008. No motion was filed during the appearance period, and summary judgment was entered against the surety. The trial court denied the surety’s motion to set aside the judgment, and the surety appealed.
The defendant had been arrested in another County on June 1, 2008, and the surety’s agent had obtained paper work showing his surrender. The agent took the papers showing the defendant’s surrender and incarceration in the other County to the clerk on June 11. Not having heard anything, on September 16 the agent returned to the clerk’s office with the papers and evidence the defendant was still in jail in the other County. The agent paid the clerk a $50 “surrender fee” and was told a notice of exoneration of the bond would be mailed. The surety conceded that under the California Supreme Court decision in People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 2303207 (Cal. June 10, 2010) a motion within the appearance period is required when a defendant is arrested in another County. The surety still argued, however, that the clerk’s acceptance of the documents and fee and indication that evidence of exoneration of the bond would be mailed estopped the trial court from forfeiting the bond. The Court rejected the estoppel argument and held that the surety had adequate opportunity to ascertain the status of the bond and file a motion for relief within the appearance period. [Not Published].
In County of Los Angeles v. Lexington National Insurance Corp., 2010 WL 3260412 (Cal.App. August 19, 2010) the defendant obtained a note from his doctor, without mentioning any court appearance. The next day the defendant failed to appear, but the court accepted the note as an excuse and did not forfeit the bond. The hearing was continued for 41 days. The defendant again did not appear and the bond was forfeited. The surety investigated and found that the defendant had taken advantage of the 41 day delay to flee the country. The court granted two extensions of the appearance period but eventually entered summary judgment and the surety appealed. The surety argued that the note was a fraud on the court that enabled the defendant to abscond and the courts have the inherent ability to correct frauds. The Court of Appeal thought that the alleged fraud was the continuance not the summary judgment against the surety, the extensions of the appearance period gave the surety ample opportunity to recover the defendant, and nonappearance of the defendant is the very risk the surety assumed. The trial court did not abuse its discretion in refusing to set aside the forfeiture, and the Court affirmed summary judgment against the surety. [Not Published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 3009588 (Cal.App. August 3, 2010) the defendant fled to Mexico. A few days before expiration of the extended appearance period, the surety learned that the defendant had been arrested in Mexico and confined to a town there. The surety filed a motion to toll the running of the appearance period either because the confinement was a temporary disability pursuant to Penal Code §1305(e) or on equitable grounds. The trial court denied relief and entered summary judgment against the surety. On appeal, the Court accepted that confinement could be a temporary disability but rejected the surety’s argument because the defendant was not absent based upon the temporary disability. The Court held: “We accordingly construe section 1305(e) as follows. A detention occurs where civil authorities restrain a defendant, whether by physical apprehension or by force of law. A defendant is ‘temporarily disable[d] by reason of’ the detention (§1305(e)(1)) when the operation of law is the direct cause of a defendant’s failure to appear . . . However, a detention has not prevented the defendant’s appearance under section 1305(e) when it merely buttresses the preexisting direct cause, such as where a defendant voluntarily flees to a country to which the bail agents cannot travel . . . “ The Court found that the evidence provided by the surety, unauthenticated E-mails, was insufficient to establish an abuse of discretion in finding that the defendant was not absent from the court based on his confinement in Mexico. The Court also found that the record was inadequate to compel granting equitable tolling of the appearance period. No reporter’s transcript was provided, so the Court did not know the basis on which the trial court rejected the surety’s motion for equitable tolling. The Court declined to address the merits of the surety’s equitable tolling argument because of the surety’s failure to provide an adequate record. [Not Published].
People v. International Fidelity Insurance Co., 2010 WL 2527907 (Cal.App. June 24, 2010) held that the addition of more charges arising out of the same incident did not discharge the surety. The bond provided that the surety undertook that the defendant would appear to answer “any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and all duly authorized amendments thereof.” Although the various amended complaints and informations filed against the defendant significantly increased his potential punishment, they all arose out of the same armed robbery. They were, therefore, within the terms of the bond and did not operate to discharge the surety. The Court also held that a Deputy Clerk, on the Clerk’s behalf, could sign the Certificate of Mailing of the notice of forfeiture. [Published].
In People v. Bankers Insurance Co., 2010 WL 2505952 (Cal.App. June 22, 2010) the defendant was taken into custody by federal authorities on the same day he failed to appear and deported a short time later. The surety filed a timely motion to vacate the forfeiture or to extend the appearance period but supported it with affidavits rather than a government document proving the deportation. The trial court denied the surety’s motion from the bench but delayed entering a written order. The court then granted summary judgment and later entered a written order denying the surety’s motion. On appeal, the surety argued that the summary judgment was premature because the surety’s motion had not yet been denied. The Court rejected that argument because the trial court’s denial of the motion in open court was effective. The surety also argued that the defendant’s deportation amounted to a permanent disability pursuant to Penal Code §1305(g). Before the trial court, however, the only proof of the deportation were two hearsay declarations. On appeal, the Court took judicial notice of a formal Warrant of Removal/Deportation from the Department of Homeland Security, but it was not offered in evidence to the trial court. Therefore, the trial court did not err in denying the surety’s motion since the motion was not supported by competent evidence. [Not Published].
In County of Los Angeles v. American Contractors Indemnity Co., 2010 WL 2373364 (Cal.App. June 15, 2010) the defendant repeatedly failed to appear, but his counsel represented that the defendant had health problems. Eventually the court declared a forfeiture and entered summary judgment on the bond. The surety moved to set aside the summary judgment and exonerate the bond. The court denied the motion 126 days after the motion was filed, and the surety appealed. The appeal was filed 175 days after notice of entry of the summary judgment. The Court dismissed the appeal as untimely. The surety argued that the trial court lost jurisdiction when it failed to forfeit the bond when the defendant first failed to appear without sufficient excuse. The Court held that the trial court had fundamental jurisdiction and may only have acted in excess of its jurisdiction. Therefore, the summary judgment became final when the appeal period expired, and it was not subject to collateral attack by the surety’s motion to set it aside.
In People ex rel. County of Orange v. Accredited Surety and Casualty Co., 2010 WL 2332965 (Cal.App. June 10, 2010) the defendant failed to appear. The court apparently intended to forfeit the bond, but it said the bond was exonerated. The trial court denied the surety’s motion to vacate the forfeiture and entered summary judgment. On the surety’s appeal, the Court rejected the surety’s argument that certain “magic words” had to be used to declare a forfeiture, but held, “it is clear that court must declare a forfeiture and that it is not sufficient for the court to state the opposite, that the bond is exonerated, even if it appears the court misspoke unintentionally.” Having failed to declare a forfeiture in open court, the trial court lost jurisdiction to forfeit the bond at a later date, and the Court reversed the judgment. [Not published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 2303207 (Cal. June 10, 2010) the California Supreme Court resolved a conflict between two Courts of Appeal by holding that a surety must file its motion to vacate forfeiture of its bond within the appearance period if it relies on the arrest or surrender of the defendant in another county. The defendant failed to appear in Los Angeles on April 18, 2007, and the court declared a forfeiture. The bail agent surrendered the defendant in San Bernardino County on July 16, 2007. Summary judgment was entered against the surety on December 4, 2007. On January 8, 2008, the surety moved to vacate the summary judgment, set aside the forfeiture and exonerate the bond. If the motion had been filed within the appearance period, it should have been granted pursuant to Penal Code §1305(c)(3) because the defendant was returned to custody outside of Los Angeles County, but there was a division between Courts of Appeal as to whether the surety could file the motion after the appearance period expired. The Court discussed the legislative history of §1305 and the conflicting Courts of Appeal cases and held that §1305(i) applied and required the surety to file its motion within the appearance period.
In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 2254799 (Cal.App. June 7, 2010) the defendant was released on bond subject to an INS hold. He was either deported, or voluntarily returned, to Mexico or Guatemala. When he failed to appear, the court declared a forfeiture and notice was mailed. After one extension of the appearance period, summary judgment was entered. After expiration of the extended appearance period, the surety moved to set aside the summary judgment and discharge the bond on the ground that it was impossible to return the defendant because he could not legally enter the United States. The trial court denied the motions and the surety appealed.
The government argued that the surety’s motions were untimely because they were filed after expiration of the appearance period. The Court agreed that the motions were untimely. The Court found that the surety’s motions were based on Penal Code §1305 and had to be filed within the time limits set forth in the statute. The Court nevertheless considered the surety’s arguments on their merits and found that the defendant’s absence was not a permanent disability under §1305(d) nor that he was detained and the prosecutor refused to seek extradition under §1305(f). The surety or the defendant could have sought pursuant to 8 U.S.C. §1182(d)(5(A) for him to be allowed to enter the U.S. to appear in court. Thus, the surety’s motions were not based on the lack of jurisdiction of the trial court to entered summary judgment, or on the trial court’s obligation on its own motion to vacate the forfeiture order, but rather on arguments that the surety was entitled to relief under §1305. As such, the motions had to be filed within the extended appearance period, and even if considered on their merits the motions were properly denied. The Court affirmed summary judgment against the surety. [Not published].
In People v. Fairmont Specialty Group, 2010 WL 2246448 (Cal.App. June 7, 2010) the clerk mailed a notice of forfeiture to the surety to start the appearance period, but apparently no actual forfeiture was declared in open court. After one extension of the appearance period, the surety moved to vacate any forfeiture and exonerate the bond. The surety appealed from denial of its motion and the eventual summary judgment. The Court held that failure to declare a forfeiture on the record resulted in exoneration of the bond and loss of jurisdiction to enter the judgment. The Court reversed the judgment against the surety and remanded with directions to vacate forfeiture and exonerate the bond. [Not published].
In People v. Sanchez, 2010 WL 2224699 (Cal.App. June 4, 2010) the defendant failed to appear for arraignment on April 1, 2008. Defense counsel said that he told the defendant of the date but that there may have been confusion over 4/1/08 versus 4/18. The court did not forfeit the bond and continued the matter to April 18. When the defendant failed to appear on the 18th, the court forfeited the bond and issued a bench warrant. The Court rejected the surety’s argument that the trial court lost jurisdiction when it failed to forfeit the bond on April 1. The Court thought that the defendant’s record of appearing on numerous prior occasions and counsel’s explanation were sufficient to prevent the trial court’s action from being arbitrary or capricious. The trial court acted within its discretion. The Court also rejected the surety’s argument that there was no court order directing the defendant to appear on the 18th. The operative date was April 1, when he had been ordered to appear.
The surety also argued that the defendant was detained in Mexico but the prosecutor had not entered the warrant in the NCIC system and would not seek extradition. The Court thought that the record failed to establish that the warrant was not entered in the NCIC database or that, if it had been entered, the Mexican authorities would have held the defendant. Similarly, the Court thought the record did not show that the prosecutor’s office refused to seek extradition as opposed to failed to produce extradition documents immediately. The Court characterized the record as showing “coordination between agencies that was slow to progress due to various employees being on vacation” rather than an election not to extradite. [Not published].
In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 2115954 (Cal.App. May 27, 2010) the surety appealed the trial court’s refusal to extend the initial appearance period. The surety’s motion relied on an affidavit from an investigator describing his attempts to locate the defendant. The Court held that good cause for an extension required both due diligence in the initial period and a reasonable likelihood of success in capturing the defendant if the extension is granted. Here, the Court thought that even if the investigator’s actions were due diligence, there was an insufficient showing of likelihood that the defendant would be located if more time were allowed. The Court held that the trial court did not abuse its discretion in denying the extension and affirmed summary judgment on the bond. [Not published.]
In County of Los Angeles v. Safety National Casualty Corp., 2010 WL 2028533 (Cal.App. May 24, 2010) the defendant failed to appear and a bench warrant was issued. For unexplained reasons, the clerk, but not the court, recalled the warrant. The defendant was picked up by the Sheriff of San Bernardino County, given a citation to appear in the Los Angeles case, and released on her own recognizance. On the last day of the appearance period, the surety moved to vacate the forfeiture and exonerate the bond pursuant to Penal Code §1305(c)(1). At the hearing on its motion, the surety also relied on §1305(c)(3). The trial court denied the surety’s motion and entered summary judgment. After denial of its motion to set aside the summary judgment, the surety appealed.
The Court of Appeal noted that the issue of whether a surety must move for relief pursuant to subdivision (c)(3) within the 180 day appearance period is pending before the California Supreme Court. The Court did not reach that issue because it agreed with the surety that its timely motion set forth the basis for its (c)(3) argument that the defendant was in custody in another county on the underlying charge even though the motion cited (c)(1). Thus, the merits of the argument were before the trial court pursuant to the timely motion. The Court, however, then found that on the record before it there was no evidence the defendant was arrested by the San Bernardino Sheriff on the Los Angeles charge. The Court conceded that there was some contact between the Sheriff and a person of the same name as the defendant, Maria Hernandez, but thought that the evidence did not establish that she was the same person as the defendant or that she was ever in custody on the Los Angeles charge. The Court therefore affirmed the summary judgment. [Not published].
In People v. Lexington National Insurance Corp., 2010 WL 1951135 (Cal.App. May 17, 2010) the defendant was in custody on another charge when he failed to appear. After receiving notice of the forfeiture, the bail agent located the defendant in jail, notified the court and the jail officials requesting that a hold be placed on the defendant, but did not make a definitive record of the request. No hold was in fact placed on the defendant and the appearance period had expired by the time he appeared in court on the charges for which the bond had been given. The trial court denied the surety’s motion to vacate summary judgment. The Court of Appeal thought that the surety should have moved to toll and/or extend the appearance period while the defendant remained incarcerated and made a formal, documented request that a hold be placed on the defendant. The Court assumed on the record before it that the trial court did not credit the agent’s affidavit and found that no hold was ever requested. It did not decide whether an informal telephone call or fax, if proven, could constitute a sufficient request for a hold. [Not published].
In People v. Lopez, 2010 WL 1619561 (Cal.App. April 22, 2010) the defendant fled to Mexico. The bail agent followed the identification procedures of Penal Code §1305(g), and the surety filed a motion to vacate the forfeiture and exonerate the bond. Two days later, the trial court entered summary judgment, but the clerk did not mail notice of the entry for over a month. In the meantime, the parties filed memoranda and the trial court denied the surety’s motion to vacate the forfeiture and exonerate the bond. The surety appealed from denial of its motion but not from the summary judgment. The Court did not reach the merits of the surety’s entitlement to relief under §1305(g) because it held that the summary judgment, which had not been set aside by the trial court or appealed by the surety, was final and not subject to collateral attack. Once the summary judgment was entered, the trial court lost jurisdiction to rule on the motion to vacate the forfeiture and exonerate the bond. Such a motion is not within the limited types of permitted post judgment motions. In addition, while the summary judgment may have been voidable because of the surety’s pending motion to vacate the forfeiture, it was not void and was in full force and effect until vacated by the trial court or reversed on appeal. The surety could have appealed the summary judgment or included it in its appeal of denial of the motion, but it did not. Therefore, the summary judgment was final. [Not published].
In Absolute Bonding Corp. v. White-Watkins, 2010 WL 1613304 (Cal.App. April 22, 2010) the defendant’s mother signed a contract with the bail agent promising to pay a premium of 10% of the amount of the bond per year. She paid slightly less than half the first year’s premium in cash and the balance in 15 monthly installments. She did not pay another premium. The indemnity agreement provided that if she failed to pay any premium due the bail agent could surrender the defendant, but the agent did not surrender him. He subsequently failed to appear, the bail agent was unable to locate him, and summary judgment was entered on the bond. The indemnitor argued that the bail agent should have surrendered the defendant when the renewal premium was not paid. The Court held that the agent had the right to surrender him, but no obligation to do so, and entered judgment for the bail agent against the indemnitor. [Not published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 1614298 (Cal.App. April 22, 2010) the defendant fled to Lebanon. He was located there, but the United States did not have an extradition treaty with Lebanon, and the court concluded that extradition was not feasible. The surety moved to vacate the forfeiture and exonerate the bond pursuant to subsections (f) and (g) of Penal Code §1305 or in the alternative to toll the running of the appearance period. The Court held that there could be no “election” not to extradite if extradition was not a feasible possibility. The Court also noted that at the time of the trial court hearing the defendant was no longer in custody, and had never been temporarily detained, which were prerequisites to relief under the statute. Therefore, the surety was not entitled to relief under §1305. The Court also affirmed denial of the surety’s alternative request for tolling of the appearance period since there was no feasible possibility of recovering the defendant. [Not published].
In County of Los Angeles v. Lumbermens Mutual Insurance Co., 2010 WL 1078858 (Cal.App. March 25, 2010) the surety argued that the bond should have been discharged pursuant to Penal Code §1305(f) because the defendant was in custody in the country of Georgia and the district attorney refused to try to extradite him. The evidence submitted by the surety, however, was inadequate to support its argument. The arrest record of the defendant and a document from Georgia had discrepancies in the spelling of the name and the physical description of the person, and the document did not show that the person remained in custody when the district attorney was contacted. The document was not given to the district attorney, and the record did not show that the district attorney refused to seek extradition. The Court affirmed summary judgment forfeiting the bond. [Not Published].
In County of Orange v. Continental Heritage Insurance Co., 2010 WL 740152 (Cal.App. March 4, 2010) the clerk mailed notice of forfeiture to the surety at the address shown on the bond. The surety had moved but had not notified the court. The post office returned the notice with the surety’s new address shown on the envelope. The court filed the returned envelope but did not notify the surety at its new address. The trial court denied the surety’s motion to exonerate the bond and entered summary judgment against the surety. The Court of Appeal held that the clerk did exactly what Penal Code §1305(b) required – mailed the notice to the address on the bond – and affirmed the judgment. [Not published].
In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 731369 (Cal.App. March 4, 2010) the defendant on an auto theft charge fled to the country of Georgia. The surety’s agent located him in custody there and notified the District Attorney. The District Attorney consulted with the State Department and was told there was no bilateral extradition treaty with Georgia and that the State Department would negotiate for alternatives such as deportation or expulsion only in cases alleging the most serious crimes. The surety argued that the District Attorney elected not to seek extradition and so the bond was exonerated pursuant to Cal. Penal Code §1305(f). The Court disagreed and found that there was no feasible way to extradite the defendant; therefore the District Attorney could not “elect” not to seek extradition. The Court affirmed summary judgment forfeiting the bond.
In People v. Bankers Insurance Co., 2010 WL 120691 (Cal.App. January 14, 2010) a $17,500 bond was posted before a complaint was filed. The bond provided for appearance “to answer any charge in any accusatory pleading based upon the acts supporting the complaint . . .” When the complaint was filed, the charges would have required bail of $115,000 under the bail schedule, but there was no evidence the charges involved facts separate from those underlying the original charges. The surety argued the jail’s understating of the bond amount prevented it from properly evaluating its risk and increased the risk of its bond. The Court looked to the plain terms of the bond and found that they guaranteed appearance to answer any charges from the same operative facts. The Court found that the complaint did not increase the surety’s risk and was within the scope of the bond. The Court affirmed judgment against the surety. [Published.]
In People v. Fairmont Specialty Group, 2010 WL 144802 (Cal.App. January 15, 2010) the bail agent, on behalf of the surety, filed a timely motion to extend the appearance period together with a conclusory affidavit. A supplemental affidavit with details of the efforts to recover the defendant was filed after the appearance period expired. The trial court thought the motion was untimely and denied an extension. On appeal, the Court noted that the agent had conceded the motion was untimely and held that the conclusory affidavit did not meet the statutory requirements for an extension of the appearance period. The inadequate affidavit could not be cured by a more detailed affidavit filed after expiration of the time to request an extension. The Court also rejected the surety’s arguments based on the trial court issuing a forfeiture and bench warrant but holding them for five days because the defense attorney represented there was a sufficient excuse for the defendant’s failure to appear. The court was not deprived of jurisdiction later to declare the forfeiture. The Court treated the trial court’s five day hold as a continuance for good cause. The surety also disputed the trial court’s authority to declare a default when the defendant did not appear after the five day period because there was no order that he appear on that date. The Court thought the presence of defense counsel and understanding that the defendant was to appear and present his excuse was sufficient to “lawfully require” the defendant’s appearance at the conclusion of the five day hold and justify forfeiture of the bond when he did not appear. [Not published].
In People v. Hovanesian, 2010 WL 852151 (Cal.App. March 12, 2010) the original complaint was amended to add new charges. The defendant continued to appear as required. At one point, an order indicated that the amount of bail was increased and the defendant was committed to custody, but in fact he remained free on the original bond and the court’s minute orders did not mention any increase in the bail amount. The defendant eventually pleaded guilty but failed to appear for sentencing. The bond was forfeited and notices mailed. Several months later a different judge entered a minute order in chambers that the amount of the bail was increased effective as of the date of the order increasing the amount. The State agreed that if the bail amount had actually been increased and the defendant taken into custody, it would have discharged the bond. In fact, however, these events did not happen. Even if the bond amount were increased, that alone would not discharge the existing bond. The Court also rejected the surety’s argument that the amended complaint with added charges increased the surety’s risk and discharged the bond. The bond guaranteed that the defendant would appear to answer any charge in any complaint based on the acts supporting the original complaint. The surety contemplated that the complaint could be amended and more charges added. The Court found that the surety was not prejudiced by the amendment because the defendant continued to appear and eventually pled guilty to only six counts. The Court stated, “Bankers has not shown that at the time the bond was forfeited at sentencing, the risk remained increased from when Bankers executed the bond.” [Not published].
In People v. Bankers Insurance Co., 2010 WL 925180 (Cal.App. March 16, 2010) the defendant failed to appear on January 29, 2007. The court ordered the bond forfeited and notice was sent. The surety obtained two extensions of the appearance period. On January 22, 2008, the surety filed a third motion asking for an additional extension of six months. This extension should have been denied because it substantially exceeded the maximum period of 365 days (including 5 days for mailing the original notice). The court nevertheless granted an extension to July 15, 2008. When the defendant still was not recovered, the court entered summary judgment against the surety on July 21, 2008. The surety did not appeal, but in October, 2008, it filed a motion to vacate the forfeiture and exonerate the bond, which the trial court denied. The surety appealed from that denial.
Penal Code §1306(c) required that summary judgment be entered within 90 days of the date it could first be entered. That 90 day period started when the maximum extension of the appearance period ended on January 29, 2008. Once the 90 days passed, the trial court no longer had jurisdiction to enter summary judgment. The Court of Appeal, however, held that the trial court had fundamental jurisdiction over the case and the surety was estopped to object to the court’s action in excess of its jurisdiction. The erroneous order extending the appearance period beyond the statutory maximum led to the erroneous summary judgment, but the surety had itself requested the erroneous extension. The Court stated, “We do not intend by this opinion to create a broad estoppel rule applicable to any misstep made by the surety. We recognize that the statutory provisions are replete with technicalities, and the trial courts must be vigilant in following the statutory strictures… To permit the surety to have it both ways – to obtain more time to avoid forfeiture of the bond, and then to have the bond exonerated because the judge gave them more time – would be to allow an intolerable manipulation of the trial courts. This we cannot and will not condone.” [Published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 3009588 (Cal.App. August 3, 2010) the defendant fled to Mexico. A few days before expiration of the extended appearance period, the surety learned that the defendant had been arrested in Mexico and confined to a town there. The surety filed a motion to toll the running of the appearance period either because the confinement was a temporary disability pursuant to Penal Code §1305(e) or on equitable grounds. The trial court denied relief and entered summary judgment against the surety. On appeal, the Court accepted that confinement could be a temporary disability but rejected the surety’s argument because the defendant was not absent based upon the temporary disability. The Court held: “We accordingly construe section 1305(e) as follows. A detention occurs where civil authorities restrain a defendant, whether by physical apprehension or by force of law. A defendant is ‘temporarily disable[d] by reason of’ the detention (§1305(e)(1)) when the operation of law is the direct cause of a defendant’s failure to appear . . . However, a detention has not prevented the defendant’s appearance under section 1305(e) when it merely buttresses the preexisting direct cause, such as where a defendant voluntarily flees to a country to which the bail agents cannot travel . . . “ The Court found that the evidence provided by the surety, unauthenticated E-mails, was insufficient to establish an abuse of discretion in finding that the defendant was not absent from the court based on his confinement in Mexico. The Court also found that the record was inadequate to compel granting equitable tolling of the appearance period. No reporter’s transcript was provided, so the Court did not know the basis on which the trial court rejected the surety’s motion for equitable tolling. The Court declined to address the merits of the surety’s equitable tolling argument because of the surety’s failure to provide an adequate record. [Not Published].
In County of Los Angeles v. American Surety Co., 2010 WL 2927233 (Cal.App. July 28, 2010) the defendant appeared six times for pretrial proceedings but failed to appear for trial. Defense counsel represented to the court that on previous occasions he had spoken with defendant a day or two prior to each appearance but that counsel had emergency surgery and had been unavailable. Counsel represented that the defendant had left him a voice mail message and asked the court to hold the bench warrant, not forfeit the bond, and continue the case for two days. The court agreed, and the defendant appeared at the continued hearing. Subsequently, the defendant failed to appear and the bond was forfeited. After several extensions of the appearance period, summary judgment was entered and the surety moved to set it aside on the ground that the court lost jurisdiction to forfeit the bond by not declaring a forfeiture when the defendant first failed to appear. The surety appealed denial of its motion, and the Court of Appeal affirmed. The Court held that the trial court acted within its discretion in finding sufficient excuse for the initial failure to appear and not ordering forfeiture of the bond at that time. [Not published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 3009588 (Cal.App. August 3, 2010) the defendant fled to Mexico. A few days before expiration of the extended appearance period, the surety learned that the defendant had been arrested in Mexico and confined to a town there. The surety filed a motion to toll the running of the appearance period either because the confinement was a temporary disability pursuant to Penal Code §1305(e) or on equitable grounds. The trial court denied relief and entered summary judgment against the surety. On appeal, the Court accepted that confinement could be a temporary disability but rejected the surety’s argument because the defendant was not absent based upon the temporary disability. The Court held: “We accordingly construe section 1305(e) as follows. A detention occurs where civil authorities restrain a defendant, whether by physical apprehension or by force of law. A defendant is ‘temporarily disable[d] by reason of’ the detention (§1305(e)(1)) when the operation of law is the direct cause of a defendant’s failure to appear . . . However, a detention has not prevented the defendant’s appearance under section 1305(e) when it merely buttresses the preexisting direct cause, such as where a defendant voluntarily flees to a country to which the bail agents cannot travel . . . “ The Court found that the evidence provided by the surety, unauthenticated E-mails, was insufficient to establish an abuse of discretion in finding that the defendant was not absent from the court based on his confinement in Mexico. The Court also found that the record was inadequate to compel granting equitable tolling of the appearance period. No reporter’s transcript was provided, so the Court did not know the basis on which the trial court rejected the surety’s motion for equitable tolling. The Court declined to address the merits of the surety’s equitable tolling argument because of the surety’s failure to provide an adequate record. [Not Published].
California Case Law 2009
In People v. American Contractors Indemnity Co., 2009 WL 1581541 (Cal.App. June 8, 2009) the bail bond and bail receipt instructed the defendant to appear on April 25, 2006. On that date no complaint had yet been filed, and the court’s “No Complaint Calendar” had a handwritten note that the defendant was present and instructed to appear for arraignment on May 9. Prior to May 9 a complaint was filed, and the defendant appeared several times before failing to appear on March 19, 2007, at which time a forfeiture was declared. The appearance period was extended and on the last day of the extended period the court entered summary judgment. The surety moved to set aside the forfeiture and appealed denial of its motion. The surety argued that the court had to declare a forfeiture on April 25 when the defendant did not appear and that entry of summary judgment on the last day of the appearance period was error because the appearance period had not expired.
The Court of Appeal rejected both arguments. The record suggested the defendant did appear as instructed on April 25, but even if he had not the bond did not have to be forfeited because no complaint had yet been filed. The summary judgment entered one day early was voidable but not void. The court had fundamental jurisdiction, although it acted in excess of its jurisdiction. The surety did not appeal or directly attack the judgment. Its motion to set aside was a collateral attack, and it was filed after the appeal period expired. Upon expiration of the appeal period, the judgment became final and no longer subject to collateral attack in the absence of unusual circumstances that prevented an earlier direct attack. Here there were no such circumstances, and the trial court correctly denied the motion to set aside the final summary judgment.
In People v. Fairmont Specialty Group, 2009 WL 33653 (Cal.App. January 7, 2009) the defendant failed to appear without sufficient excuse, and according to the transcript the trial court stated in open court, “Bench warrant forfeited – no. Bench warrant issue. No bail. You can do a letter of reassumption.” The clerk’s minutes said the bond was forfeited, and two days later a notice of forfeiture was mailed to the surety. The trial court refused to set the forfeiture aside, and the surety appealed. The Court of Appeals held that Penal Code §1305(a) required the court to declare the forfeiture in open court so that the surety or agent in attendance would know to commence recovery efforts as promptly as possible. In this case there was a transcript, so the presumption that the court followed proper procedures did not apply, and entering the forfeiture later in the clerk’s minutes was not compliance with the statutory requirement. The trial court’s statement was not equivalent to “bail is forfeited” and did not comply with the statute. Therefore, the court lost jurisdiction to forfeit the bond. The Court of Appeals reversed the trial court and ordered exoneration of the bond. [Not Published].
In People v. American Surety Co., 2009 WL 131995 (Cal.App. January 21, 2009) the defendant failed to appear and the trial court declared the bond forfeited. Later that day, the defendant appeared and the court reinstated the bond. No notices of the forfeiture or the reinstatement were sent to the surety or agent. Several months later, the defendant failed to appear for sentencing, and the court again forfeited the bond and the notices were sent. The court denied the surety’s motion to set aside the forfeiture and exonerate the bond, and the surety appealed. The Court of Appeals held that the failure to give the surety and agent notice of the original forfeiture and reinstatement deprived the court of jurisdiction to forfeit the bond months later. The surety and agent are entitled to notice within 30 days of forfeiture so they can determine how to proceed with respect to the bond. The failure to give notice pursuant to Penal Code §1305(a) deprived them of the opportunity to consider any possible increased risk. [Not Published].
In County of Los Angeles v. International Fidelity Insurance Co., 2009 WL 215147 (Cal.App. January 30, 2009) the defendant failed to appear and the court Commissioner declared the bond forfeited. Summary judgment was eventually entered against the surety, and the surety moved to vacate it and exonerate the bond. The trial court denied the motion, and the surety appealed. The Court rejected the surety’s argument that “court” in Penal Code §1305(a) meant a judge not a commissioner and affirmed denial of the motion. The Court held that bail forfeiture was an ex parte proceeding that commissioners were authorized to perform. The Court noted that Court of Appeals precedent from 1971 had so held, and the Legislature had not seen fit to amend the statute to change that result. [Not Published].
In People v. Bankers Insurance Co., 2009 WL 354200 (Cal.App. February 11, 2009) the defendant failed to appear, and the judge said “we’ll keep the bail bond and issue a warrant.” The clerk’s minutes indicated that the bond was forfeited, and notice was mailed to the surety. The surety eventually moved to set aside the forfeiture because the court lost jurisdiction when it failed to forfeit the bond in open court. The trial court denied the motion, and the surety appealed. The Court of Appeal noted that the statutory procedure had to be strictly followed and that all the statute required was for the judge to say, in open court, “the bond is forfeited.” While other words can be used, an ambiguous statement is insufficient. The majority of the Court of Appeals held that “we’ll keep the bail bond” was not close enough to “the bond is forfeited” and reversed the trial court. The dissenting Justice would have affirmed because “we’ll keep the bail bond” was, in context, not subject to any interpretation other than that the bond was forfeited. [Not published].
In County of Los Angeles v. Lexington National Insurance Co., 2009 WL 446135 (Cal.App. February 24, 2009) the agent located the defendant in Mexico and brought him to a police station to be identified. The surety contacted the prosecutor’s office, but no decision was made to seek, or not to seek, extradition. The 180 day appearance period was extended, but at the end of the extension the court entered judgment against the surety, and the surety appealed, but the surety did not obtain a reporter’s transcript of the court hearing. The Court of Appeal held that without a transcript it could not determine what took place or the basis for the trial court’s ruling, and accordingly could not hold that the trial court erred. The Court affirmed the judgment. [Not published].
In People v. Fairmont Specialty Group, 2009 WL 961525 (Cal.App. April 9, 2009) the surety and agent did not receive notice of the bond’s forfeiture. The clerk certified that the notices had been mailed. Penal Code §1305(b) required that the notices be mailed to the agent and surety at the addresses shown on the bond. The Court held that the evidence was consistent with the clerk mailing the notices and the Postal Service failing to deliver them, and therefore the trail court did not abuse its discretion in denying relief. The Court affirmed the trial court’s denial of the surety’s motion to vacate the forfeiture. [Not Published].
In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., 2009 WL 1039580 (Cal.App. April 20, 2009) the surety’s recovery agent filed a motion to extend the appearance period on the last possible day, but he did not include a declaration or affidavit showing good cause for the extension. He filed such a declaration 24 days later after the defendant had been located in jail in another county. The defendant, however, had been arrested after expiration of the initial appearance period. The Court held that a declaration showing good cause for the extension is a statutorily required part of a motion to extend the appearance period and that the motion in this case was untimely because the declaration was filed after the initial period expired. Since the period was not extended and the defendant was not recovered during the initial period, the Court affirmed the summary judgment against the surety.
In People v. Fairmont Specialty Group, 2009 WL 1398176 (Cal.App. May 20, 2009) the defendant failed to appear and notice was mailed to the surety and agent. Within the extended appearance period, the surety’s investigator was told by the defendant’s family that the defendant was living in Rosario, Argentina. The District Attorney indicated a willingness to seek extradition. The surety’s motion to toll the appearance period was denied and a judgment entered forfeiting the bond. The surety appealed. In the trial court the surety had relied on Penal Code §1305(e) and argued that the defendant was temporarily disabled from appearing. On appeal the surety relied on §1305(g) dealing with identification of fugitives beyond the jurisdiction of the state, but the surety clearly had not met the requirement that the defendant had been temporarily detained and positively identified to a local law enforcement officer. The record on appeal did not include the transcript of the trial court hearing, and the Court of Appeal held that the record was inadequate and required affirmance but also noted that the case did not fit within either subsection (e) or (g) and the Court would not re-write the statute by creating a right to equitable tolling that the Legislature had not provided. [Not published].
In County of Orange v. Indiana Lumbermens Mutual Insurance Co., 2009 WL 1396427 (Cal.App. May 20, 2009) the defendant failed to appear and a warrant was issued. He was a shooting victim in another county while under surveillance by bondsmen. The law enforcement officers investigating the shooting interviewed the defendant but did not arrest him or check for warrants despite being told by the bondsmen that there was a warrant. The Court held that the defendant was never in custody or subject to a hold on the underlying charge and, therefore, that the bond was not exonerated pursuant to Penal Code §1305(c)(3). [Not published].
In People v. Two Jinn, Inc., 2009 WL 1763903 (Cal.App. June 23, 2009) the defendant failed to appear. The clerks’ minutes indicated that the bond was forfeited, but the court reporter’s transcript did not contain a declaration of forfeiture. The Court of Appeal held that the forfeiture had to be declared in open court, and here the record did not show that it was. Therefore, the trial court lost jurisdiction to forfeit the bond at a later time and summary judgment against the surety was reversed. [Not published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2009 WL 2156911 (Cal.App. July 21, 2009) the defendant failed to appear and the court forfeited the bond. The defendant was recovered and surrendered to the Sheriff of another County within the appearance period. The surety, however, did not make a motion for relief from the forfeiture, and after expiration of the appearance period the court entered summary judgment against the surety. The surety moved for relief from the judgment and exoneration of the bond more than 15 days after entry of the judgment. The trial court denied the surety’s motion, and the surety appealed.
The Court of Appeal noted that there was a split of authority on whether surrender of the defendant to custody in another county deprived the court of jurisdiction to enter judgment on the bond and allowed the surety to seek exoneration without time constraints. That is, the issue was whether the surety had to file its motion for relief from the forfeiture within the appearance period. The Court noted that the law avoids forfeitures and that Penal Code section 1305 is construed in favor of the surety. The Court followed People v. Ranger Insurance Co., 141 Cal.App.4th 867 (2006) and held that the trial court should have vacated the judgment and forfeiture and exonerated the bond. The court declined to follow the conflicting decision in People v. Lexington National Insurance Co., 158 Cal.App.4th 370 (2007) because it thought the Ranger decision more accurately followed the rules of avoiding forfeitures and strict construction in favor of the surety. The Court also held that the surety could move to vacate the judgment after expiration of the 15 day period in Civil Code §663a because surrender of the defendant within the appearance period required the court to vacate the forfeiture and deprived it of jurisdiction to enter summary judgment. Since the judgment was outside of the court’s jurisdiction, it was subject to attack at any time. The Court also noted the split of authority and suggested that either the California Supreme Court or the Legislature should resolve it. [Published].
In People v. Novinbakht, 2009 WL 2152913 (Cal.App. July 21, 2009) the defendant failed to appear and the court declared, “Bond will be forfeited.” The clerk testified that she mailed notice of the forfeiture six days later, but the depositor of the cash bond denied receiving it. The trial court heard evidence on mailing of the notice and entered judgment forfeiting the cash deposit. The Court of Appeal affirmed. The clerk’s testimony and the court records supported the trial court’s finding that notice was mailed as required by the statute. There was no requirement that the surety or defendant receive the notice. The Court also rejected arguments based on the fact that the trial court said the bond “will be forfeited” instead of the cash deposit “is forfeited” and the fact that the notice was sent by, and the certificate of service kept in, the clerk’s downtown office rather than the branch office where the case was pending. [Not published].
In County of Los Angeles v. Accredited Surety & Casualty Co., 2009 WL 2712823 (Cal.App. August 31, 2009) the defendant failed to appear but his attorney reported that he was in the custody of the federal immigration authorities and the attorney would attempt to secure his release. The court exonerated the bond, and set a new, higher bail amount. The court apparently withheld issuance of a warrant to give the attorney an opportunity to arrange for the defendant to appear. Two days later when the defendant had not appeared, the court forfeited the bond, issued a bench warrant and set the higher bail amount. The court then mailed notice of the forfeiture to the surety and agent. Almost a month later, the defendant appeared and the surety filed a written consent to reinstate the bond. The court vacated the forfeiture and reinstated the bond. The defendant failed to appear for trial and apparently fled to Peru. The court again declared the bond forfeited and, after extension of the appearance period, eventually entered summary judgment against the surety. The court denied the surety’s motion to toll the appearance period or exonerate the bond. The surety appealed.
The court refused to consider the surety’s arguments based on the original failure to appear because once the bond was reinstated with the surety’s consent it was a new undertaking. The court also rejected the surety’s argument that the federal government prevented it from returning the defendant since he was in Peru and could not return. The record did not support the argument, and the surety did not cite any authority that the defendant was barred from returning. The surety had not complied with Penal Code §1305(g) by having the defendant taken before a law enforcement officer in Peru, and there was no evidence related to a decision by the district attorney to seek extradition. There was no basis to toll the running of the appearance period, and the Court affirmed the summary judgment against the surety. [Not published].
In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., 2009 WL 2768555 (Cal.App. September 2, 2009) the defendant failed to appear, but his wife was in court and presented a letter from the Department of Veterans Affairs stating that the defendant had been accepted into a residential drug treatment program. The court continued the hearing and did not forfeit the bail bond. The defendant did not appear at the continued hearing, and the court then declared a forfeiture and eventually entered judgment against the surety. The surety appealed and argued that failure to declare a forfeiture on the first occasion of non-appearance deprived the court of jurisdiction to forfeit the bond. The issue was whether the trial court acted within its discretion in not declaring a forfeiture. The Court of Appeal held that under the current statute it is not necessary for the trial court to state its reasons in the Minutes, and the Court of Appeal could look to the entire record. The letter from the Department of Veterans Affairs was in the record and established a rational basis for the trial court to believe the defendant might have a sufficient excuse for his nonappearance, and thus the court acted within its discretion in continuing the hearing and not forfeiting the bond. [Not published].
In County of Los Angeles v. Safety National Casualty Corp., 2009 WL 3646895 (Cal.App. November 5, 2009) the defendant failed to appear, and the surety was granted an extension of the appearance period to return him. The surety moved to vacate the forfeiture and exonerate the bond on the grounds that the defendant had been deported and was barred from re-entering the United States. The trial court denied the motion and entered summary judgment against the surety. The surety appealed, but the Court of Appeal did not reach the merits of the surety’s argument. The Court found that the record in the case did not substantiate the facts on which the surety relied. The record contained an unsworn declaration and uncertified copies of some documents purportedly from Immigration and Customs Enforcement that the Court thought failed to establish the defendant was deported. The Court affirmed the trial court’s summary judgment against the surety.
In People v. American Surety Insurance Co., 2009 WL 3722604 (Cal.App. November 9, 2009) the defendant was released on bond, and the jailer set November 1, 2007, for his arraignment. The record did not show what, if anything, occurred on November 1, but on November 9 a complaint was filed along with a copy of a letter from the district attorney to the defendant instructing the defendant to appear to enter a plea on November 29. The defendant did not appear on the 29th, and the bond was forfeited. Eventually, summary judgment was entered against the surety, and the surety appealed. The Court held that the letter from the district attorney was not a court order to appear, and therefore the bond could not be forfeited when the defendant failed to appear on the 29th. The trial court, but not the prosecutor, could have continued the case from the date set by the jailer. While the Court noted that there was no proof the letter was sent to or received by the defendant, its holding was: “There was no court order continuing the appearance date set by the jailer, and the district attorney’s notice to appear was not a substitute. Without an order to appear, the court lacked jurisdiction to forfeit bail for failure to appear for arraignment ‘without sufficient excuse.’” [Published].
In People v. Lincoln General Insurance Co., 2009 WL 3791188 (Cal.App. November 13, 2009) the defendant failed to appear and notice of forfeiture was timely mailed. The surety obtained a 90 day extension of the initial appearance period. Shortly before expiration of the 90 day extension, the surety made a motion for a further extension but filed it in the wrong Department of the trial court. When the case was called the surety’s attorney and the file were present in the correct Department, but there was no motion in the file. Several days later the surety sought to “continue” the hearing on its motion and represented to the court that “the Court was unable to locate the file in this case and ordered that the hearing be continued.” The court noted in strong terms that the surety’s representation was untrue and rejected the papers seeking to continue the hearing. The court entered summary judgment and the surety appealed. The Court of Appeal held that the trial court acted within its discretion in rejecting the attempt to “continue” the hearing. Since the appearance period had expired and no motion for another extension was pending, the summary judgment was properly entered. [Not Published].
In People v. Indiana Lumbermens Mutual Insurance Co., 2009 WL 4047965 (Cal.App. November 24, 2009) the defendant failed to appear on December 4, 2007, and the bond was forfeited. The court promptly mailed the required notices. During the appearance period, the bail agent sent a faxed inquiry as to the status of the bond, and the clerk erroneously replied that it had been exonerated on December 4, 2007. The court entered summary judgment and the surety appealed. The Court held that the statutory requirements were followed, and therefore the trial court had jurisdiction to enter the summary judgment. The Court also rejected the surety’s argument that the clerk’s mistake estopped the trial court from entering the judgment. The Court thought that the informal status response did not relieve the surety of its obligation to review the court file. The exoneration purportedly occurred on the same day as the forfeiture, and the Court thought that discrepancy suggested the information received from the clerk was not reliable. [Not Published].
California Case Law 2008
People v. Bankers Insurance Co., 2008 WL 458669 (Cal.App. February 21, 2008) reversed a judgment against the surety. The defendant failed to appear and the clerk noted in the minute entries that the bail bond was forfeited, but the transcript showed that the court did not actually declare the forfeiture. The surety twice located the defendant outside of California, but the prosecutor did not seek extradition. The surety moved to set aside the forfeiture and exonerate the bond and appealed the trial court’s denial of its motion. The Court of Appeal held that the trial court lost jurisdiction to forfeit the bond when it failed to order the forfeiture upon the defendant’s initial failure to appear. The forfeiture has to be declared in open court, not by the clerk later noting a forfeiture in the minutes. The Court vacated the judgment and exonerated the bond and, therefore, did not reach the surety’s alternative argument based on failure to extradite the defendant after the surety located him. [Not Published].
In People v. Lexington National Insurance Co., 2008 WL 542171 (Cal.App. February 29, 2008) the defendant was in custody in another county well within the 180 day appearance period, but the Court nevertheless affirmed summary judgment against the surety. The trial court clerk mailed notice of forfeiture to the surety and bail agent at the addresses stated on the bonds. The surety, however, had moved some four months prior to issuance of the bonds. Although not completely clear, it appeared that the surety gave the court notice of its new address, and after the original notices were returned, the clerk mailed another notice of at least one of the forfeitures to the surety at the new address shown on the returned envelope. The bail agent also moved, and he claimed he never received the clerk’s notice, but the surety notified him of the forfeitures.
The Court held that the original notices complied with the statutory requirements. The Court distinguished cases involving a court ignoring a change of address sent after the bond was issued. Here the bond itself contained the surety’s old address, and there was no obligation for the court to look at change of address records that pre-dated the bond. The bail agent received actual notice of the forfeitures, and could not complain that the notice was not sent to his new address. Since the original notices complied with the statute, they started appearance period. The surety filed its motion to vacate the forfeitures shortly after the appearance period expired (and within 185 days of the second notice). The Court followed its own precedent and held that the motion had to be filed within the appearance period in spite of the contrary decision of the Second District Court of Appeal in People v. Ranger Insurance Co. Since the motion was untimely, it was properly denied. [Not Published].
In County of Los Angeles v. Ranger Insurance Co., 2008 WL 2068068 (CalApp. May 16, 2008) the defendant fled to Mexico. The surety’s agent, along with the Mexican police, located him there, but the agent did not obtain an affidavit from a Mexican law enforcement officer. When the agent in Mexico located the defendant, the surety’s agent in California called the District Attorney’s office and asked for an extradition request. The District Attorney’s office refused. The surety moved to set aside summary judgment and exonerate the bond. The trial court denied the surety’s motion, and the surety appealed. The Court of Appeal affirmed the trial court because Penal Code §1305(g) requires that the defendant be detained in the presence of a local law enforcement officer and identified in an affidavit made by that officer. Here, there was no affidavit from a Mexican law enforcement officer, and it was not clear that the defendant had ever been detained in the presence of the Mexican authorities. [Not published].
In People v. Accredited Surety and Casualty Co., Inc., 2008 WL 2266141 (Cal.App. June 4, 2008) the defendant failed to appear and her bond was forfeited. The bail agent found evidence that she was in Costa Rica, and the prosecutor, bail agent and federal authorities were working to extradite her. The trial court granted one extension of the 185 day appearance period. The surety applied for another extension or in the alternative to toll the running of the period. The trial court denied the surety’s request, and the Court of Appeal affirmed. The Court held that only one extension of the appearance period can be granted. Penal Code §1305(e) permits tolling of the appearance period because of temporary disability of the defendant, but here the defendant was alleged to be at liberty in Costa Rica. There was no evidence she was prevented from appearing by illness, insanity or incarceration, therefore there was no basis for tolling the running of the appearance period. [Not Published].
In County of Los Angeles v. Fairmont Specialty Group, 2008 WL 2440442 (Cal.App. June 18, 2008) the defendant posted bail on February 25, and the bond stated on its face that he was to appear on March 3. The Complaint, however, was not filed until March 7, and the court records were silent as to any proceedings on March 3. The defendant appeared for arraignment and throughout the proceedings up to sentencing. When he failed to appear the court declared a forfeiture, and proper notice was given the surety. The trial court denied the surety’s timely motion for extension of the 180 day appearance period, and the surety raised two issues on appeal. First, the surety argued that the bond should have been forfeited when the defendant failed to appear on March 3, and that having failed to declare a forfeiture then the trial court lost the ability to declare one later. The Court rejected the argument because on March 3 the complaint had not been filed so the defendant was not required to appear. The Court also held that the trial court did not abuse its discretion in denying an extension of the appearance period because the surety did not demonstrate either sufficient diligence during the initial period or a sufficient likelihood of success if it was granted an extension.
In People v. Lincoln General Insurance Co., 2008 WL 2690761 (CalApp. July 10, 2008) the defendant failed to appear for his trial readiness conference. His attorney was present but could not explain the defendant’s absence. Nevertheless, at the attorney’s request the court agreed to hold the bench warrant until the preliminary hearing date and did not forfeit the bond. When the defendant failed to appear for the preliminary hearing, the court forfeited the bond. The surety moved for relief because there was no good cause for the defendant’s first failure to appear, and the court had to forfeit the bond at that time. The Court of Appeals agreed and held that the fact that the defense attorney had spoken with the defendant by telephone in the previous week was not good cause for the defendant’s failure to appear. Since the court did not forfeit the bond when the defendant failed to appear for the trial readiness conference, it lost the ability to declare a forfeiture at a later date. [Not published].
In County of Los Angeles v. Fairmont Specialty Group, 2008 WL 2806088 (Cal.App. July 22, 2008) the defendant appeared for a preliminary hearing and pled nolo contendere. The court indicated what his sentence would be, agreed to delay commencement of his jail term and ordered him to appear on a future date. He did not appear, and the court forfeited the bond. The trial court denied the surety’s motion to vacate the forfeiture, and the surety appealed. The issue was whether the defendant had been sentenced or placed on probation at the preliminary hearing, which would have exonerated the bond. The Court reviewed the record of proceedings and concluded, “Where, as here, the court merely indicates its intention regarding sentencing and probation but does not actually pronounce sentencing or grant probation, bail is not exonerated.”
In People v. American Surety Co., 2008 WL 2807228 (Cal.App. July 22, 2008) the defendant was arrested and bond posted. He was directed by the jailor to appear in court on February 19, 2004. There was no record of anything transpiring on February 19, but on February 24 a criminal complaint was filed and he was arraigned on March 4. He appeared as required but at an evidence suppression hearing on April 24, 2006, a representative of the surety attempted to surrender the defendant to the court. The record was not clear what was said or what documents the representative had, but the court continued the matter to April 25 at which time the defendant did not appear. A summary judgment was eventually entered, and the surety appealed.
The surety made three arguments to set aside the judgment. First, the surety claimed that the bond should have been forfeited when the defendant failed to appear on February 19. The Court found that the surety had not carried its burden of showing what happened on February 19, but in any event since the complaint had not yet been filed the bond could not have been forfeited. The case was subject to the 15 day rule of Penal Code §1305, and the complaint was filed within the 15 day period. Second, the surety argued that the bond should have exonerated on April 24 when the bail agent tried to surrender the defendant. The trial court, however, had stated that the representative who appeared had no proof of authority and no certified copy of the bond or surrender certificate and did not express a concern that the defendant was a flight risk. The Court rejected the surety’s argument based on the surety’s failure to comply with the statutory requirements to surrender the defendant. Third, the surety argued that the summary judgment was void because when it was entered there was a pending motion to vacate the forfeiture. The trial court, however, had already denied two motions to vacate the forfeiture. The motion pending when the summary judgment was entered was just an attempt to re-litigate something the court had already decided. Even if it had been an error, however, it would not make the summary judgment void, only voidable, and the summary judgment was properly not set aside because the surety did not follow the rules for surrendering the defendant and exonerating the bond.
County of Los Angeles v. Akseralyan, 2008 WL 2895962 (Cal.App. July 29, 2008) held that the judge’s statement on the record that “bail will be forfeited” met the requirements of Penal Code §1305. The defendant failed to appear, and the judge stated, “He posted a $40,000 bond on the arrest warrant, so bond will be forfeited and a bench warrant will be issued. . . .” The bail agent argued that the statement the bond “will” be forfeited was an indication it would be forfeited at some time in the future not an immediate forfeiture as required by the statute. The Court found that no magic words were necessary and that taken as a whole the statement unequivocally declared the bond forfeited.
In People v. American Contractors Indemnity Co., 2008 WL 2897292 (Cal.App. July 29, 2008) the defendant failed to appear, the court first declared a forfeiture then vacated its order and continued the case. The defendant again failed to appear but the case was continued without any indication in the record that his failure to appear was excused. He appeared on several more court dates but ultimately failed to appear and the bond was forfeited. After one extension of the appearance period, the court denied a further extension and entered summary judgment. On the surety’s appeal, the court did not reach the surety’s claims based on lack of notice after the first, vacated forfeiture or refusal to extend the appearance period because it reversed the judgment and exonerated the bond based on the trial court’s failure to forfeit the bond on the occasion of the second failure to appear. There was no finding of sufficient excuse and nothing in the record to indicate why the defendant failed to appear, therefore the court had to declare a forfeiture in open court or lose jurisdiction to do so at a later date. Since no forfeiture was declared at that time, the later forfeiture was void. [Not Published].
In Amwest Surety Insurance Co. v. Billingslea, 2008 WL 4352599 (Cal.App. September 25, 2008) the defendant failed to appear and a summary judgment was entered against the surety on July 12, 1999. When the surety was placed into liquidation on June 7, 2001, the judgment was still unpaid. The County filed a proof of loss in the Amwest liquidation proceeding, and Amwest demanded indemnity from the bail agent who wrote the bond. There was an arbitration clause in the agreement between Amwest and the agent, and the arbitrator awarded Amwest the amount of the County’s allowed claim plus attorneys fees and costs. Amwest sought to confirm the award, and the agent sought to vacate it. The agent argued that the County’s claim was barred by the two year limitation provision of Penal Code §1306(f) because the proof of claim in the liquidation proceeding was filed more than two years after entry of the summary judgment. The arbitrator disagreed because commencement of the liquidation proceeding within the two year period stayed any enforcement of the judgment and tolled the running of the two year period. The Court of Appeals held that the bail agent had not established any legal basis to set aside the arbitration award, affirmed the judgment for Amwest, and remanded the case to determine the amount of additional appellate attorneys fees to which Amwest was entitled.
In County of Los Angeles v. American Contractors Indemnity Co., 2008 WL 4605908 (Cal.App. October 17, 2008) the defendant failed to appear for a pretrial conference, but the bond apparently had not yet been filed. The court noted in the record that the bond would be forfeited when it was received. The surety’s agent filed the bond almost two months later, and the court entered a minute order forfeiting the bond. Only then did the clerk mail notice of forfeiture to the surety and agent. The court denied the agent’s motion to set aside the forfeiture, and the surety appealed. The County did not contest the appeal, and the Court of Appeals reversed denial of the motion to set aside the forfeiture. The trial court had to declare the bond forfeited in open court as soon as the defendant failed to appear without sufficient excuse. From the record, it appeared that the court failed to make such a declaration, and thus lost jurisdiction to declare a forfeiture later. The record was not entirely clear, however, and the Court noted that in the alternative, if forfeiture was declared in open court at the time of the scheduled pretrial conference, the notice of forfeiture was not mailed within 30 days. That was a separate, independent basis to set aside the forfeiture. In either case, the surety was entitled to relief from the forfeiture. [Not Published].
In People v. International Fidelity Insurance Co., 2008 WL 4681370 (Cal.App. October 23, 2008) the defendant failed to appear on July 27, 2005, because he was home in Naples, Italy with a broken his leg. The court found this to be good cause and continued the hearing to September 20, 2005. He did not appear at the continued hearing, and the court forfeited the bond. Notice was mailed the following day. The surety filed a timely motion to extend the original 185 day appearance period, and the court granted an extension of less than the maximum upon the surety’s representation that it had located the defendant in Naples and was working with an Italian investigator to coordinate his detention. Before the extended appearance period expired, the surety moved to toll the appearance period or extend it because extradition proceedings were under way. The appearance period was extended to September 25, 2006. On September 21 the surety moved to discharge the forfeiture and exonerate the bond because the defendant’s original failure to appear had been without good cause or, in the alternative, to toll the running of the appearance period. The court denied the discharge but agreed to a 180 day tolling. The defendant was not returned to custody, and the court entered summary judgment on May 25, 2007. The surety appealed.
The Court held that the district attorney’s office did not hinder or interfere with the surety’s attempts to recover the defendant. It is the surety’s task, not the prosecutor’s, to return the defendant. The government is not required to take affirmative steps to help the surety, only to refrain from affirmative actions that prevent the surety from performing its obligations. The record did not show any action by the district attorney that hindered the surety. The various delays and failures were attributed to the surety. The Court also rejected the surety’s argument that the appearance period expired on September 21, 2006, and so the extension to September 25 was outside of the court’s jurisdiction and discharged the bond. The Court noted the 5 days because the original notice was mailed and the fact that the first appearance period ended on a Saturday resulted in the next Monday becoming the end date and calculated the end of the extended appearance period as September 25. The surety’s motion filed on September 21 was timely heard and the period extended. The summary judgment was entered well within the permitted 90 days from the end of the adjusted appearance period.
In People v. Fairmont Specialty Group, 2008 WL 4697084 (Cal.App. October 27, 2008) the defendant was released with a notice to appear on October 27. The court clerk rescheduled the appearance to October 31. The defendant failed to appear on October 31, and the court forfeited the bond. The surety obtained one 90 day extension of the appearance period, but the court refused to consider the merits of the surety’s motion for another extension. The Court of Appeals held that the court clerk had the power to reschedule the hearing, the defendant’s appearance was not required on October 27, and the court did not lose jurisdiction by not forfeiting the bond on that date. The trial court’s denial of the surety’s second motion to extend the appearance period, however, was an abuse of discretion because the court did not consider the merits of the request or the facts put forward by the surety to justify the additional extension. The trial court seemed to think that there was time left in the appearance period and that the best way to gain a quick recovery of the defendant was to deny any further extension. The surety’s counsel explained that if the appearance period were not extended there was no reason for the surety to continue looking for the defendant, but the court did not want to hear the facts. The Court of Appeals reversed the judgment and remanded the case for reconsideration of the surety’s motion to extend the appearance period.
In People v. Fairmont Specialty Group, 2008 WL 4907503 (Cal.App. November 17, 2008) the surety obtained a 180 day extension of the appearance period. Before the extended period expired, the surety located the defendant incarcerated in Arizona under his brother’s name. The surety verified by photographs, social security number and date of birth that the person in jail in Arizona was in fact the defendant. The surety moved to toll the running of the extended appearance period based on a “disability” under Penal Code §1305(e) or in the alternative to exonerate the bond because the prosecutor did not seek extradition of the defendant. The trial court denied relief, and the surety appealed. The Court of Appeal rejected the Government’s primary argument that an extension of the appearance period and tolling were mutually exclusive. Given the facts presented and the lower burden of proof to establish a right to tolling, the trial court erred in refusing to toll the period based on the defendant’s continued incarceration during the extended appearance period. The Court affirmed denial of the surety’s alternative exoneration argument because the defendant was not “temporarily detained” by the surety’s agents and, even if incarceration met the temporary detention requirement, the record did not establish that the prosecutor elected not to seek extradition. The Court vacated the summary judgment and remanded the case for further proceedings. [Not Published].
County of Los Angeles v. Fairmont Specialty Group, 2008 WL 4926873 (Cal.App. November 19, 2008) held that a criminal complaint with several different charges all related to the defendant’s arrest for the sale or transportation of marijuana did not increase the surety’s risk and discharge the surety. The Court noted that the bond was conditioned on appearance to answer “any charge” based upon the acts supporting the complaint and that the bond was actually filed after the complaint. The Court also was doubtful of the existence of a common law discharge defense based on acts that increased the surety’s risk. The Court stated, “Fairmont suggests that it has a common law defense to the forfeiture of the bond because the risk was materially increased. We reject this argument. There is no common law defense, and the risk was not increased.” [Not Published].
In People v. Lexington National Insurance Co., 2008 WL 5244275 (Cal.App. December 16, 2008) the defendant failed to appear, the bond was forfeited, and notice mailed to the surety. Seven days later, the defendant appeared before the same judge in another case involving separate facts and charges. The court did not take him into custody on its outstanding bench warrant from the first case. The surety moved to vacate the forfeiture. The trial court denied the motion and entered judgment on the bond. The surety appealed denial of its motion. The Court of Appeals held that Penal Code §1305(c)(1) required the court to vacate forfeiture of the bond if the defendant appeared in court “on the case in which the forfeiture was entered,” but here the appearance was in another case. Therefore, the statute did not require the court to vacate the forfeiture. The Court also found that it was not inequitable to forfeit the bond, and given the volume of criminal cases it would be unrealistic to expect the judge to connect the case before him and the bench warrant issued a week earlier in a separate case. [Not published].
California Case Law 2007
In People v. Lexington National Insurance Co., 54 Cal.Rptr.3d 900 (Cal.App. 2007) the defendant appeared for arraignment without an attorney. The prosecutor said the people wanted to seek remand, and the Judge told the defendant to remain in the courtroom to be interviewed by the public defender’s office for possible representation. The defendant left the courtroom and fled. The surety argued that he had been returned to custody, and thus the bond was exonerated, when the court ordered him to remain in the courtroom. The Court disagreed and held that he was never remanded to the custody of the Sheriff or otherwise taken into custody. The Judge told him to remain as a predicate to determining whether he should be taken back into custody, not as a decision to turn him over to the Sheriff.People v. Grachian, 2007 WL 602870 (Cal.App. February 28, 2007) was an appeal by the sister of the defendant (and presumably indemnitor of the surety) from a judgment forfeiting the bond. The sister argued that the defendant was in custody in Armenia and would return to California as soon as he was able. She provided various unsworn documents in Armenian with alleged English translations in support of her argument that the 180 day appearance period should have been extended. The Court found that there was no properly supported factual basis to question the trial court’s denial of the extension and so affirmed the judgment of forfeiture.
In People v. Safety National Casualty Corp., 2007 WL 901753 (Cal.App. March 27, 2007) the defendant was placed on probation and was supposed to perform community service in lieu of a fine. She failed to appear to show she had performed the community service, and the court issued a bench warrant. She was arrested, and the surety posted a bond for her release. She failed to appear again, and the bond was forfeited, but she appeared several days later, the bail agent consented to reinstatement of the bond, and the court continued her on probation and ordered her to appear and show she had enrolled in a community service program. She again failed to appear, and the court forfeited the bond. The surety sought to set the forfeiture aside because the bail agent did not receive notice of the forfeiture, and the court denied relief.
On appeal the court did not reach the notice issue because it agreed with the surety that the trial court lost jurisdiction to forfeit the bond when it reinstated the probation. The fact that the bail agent consented on the surety’s behalf did not change the fact that the court had no jurisdiction. The Court stated, “Although Post did not appear on July 5, she did appear on July 12. At the July 12 hearing, the court continued Post on probation when it ordered her to appear on July 19 to provide proof of enrollment in the volunteer program. By returning Post to probation, the bail was exonerated by operation of law. Consequently, the trial court’s order reinstating bail and its pronouncement of forfeiture of bail when Post failed to appear at the next scheduled hearing were void acts, as there was no obligation in existence that could be reinstated or forfeited.” Since this defect was jurisdictional, the surety could raise it for the first time on appeal. [Not published].
People v. Allegheny Casualty Co., 2007 WL 1965244 (Cal. July 9, 2007) reversed the Court of Appeal decision reported at 2006 WL 137424 (Cal.App. January 19, 2006) and held that in the absence of a record showing that the forfeiture was, or was not, declared in open court, the presumption that judicial proceedings are properly performed will control. The bond was forfeited and judgment entered against the surety. Two years later, the surety moved to set aside the judgment. California Penal Code §1305(a) requires that the forfeiture be declared in open court. There was no transcript of proceedings, and the court clerk’s minutes did not show that the forfeiture was, or was not, declared in open court. The trial court denied the surety’s motion, but the Court of Appeal reversed.
The California Supreme Court held that §1305(a) requires only that the forfeiture to be declared in open court not that the transcript or clerk’s minutes reflect that fact. If the record is silent, the Court rejected an analogy to cases dealing with continuances without forfeiting the bond, which are required to show on the record the excuse for the defendant’s nonappearance, and instead looked to Evidence Code §664 establishing a presumption that official duties have been regularly performed. Since Penal Code §1305(a) requires the forfeiture to be declared in open court, if the record is silent the presumption is that the Judge made such a declaration.
In People v. Ranger Insurance Co., 59 Cal.Rptr.3d 128 (Cal.App. 2007) the surety made a timely motion to extend the 180 day appearance period. The court denied the extension and entered summary judgment against the surety. The surety appealed denial of its motion, but it relied primarily on its actions in locating the defendant in Mexico after expiration of the 180 day period and the fact that the District Attorney declined to seek extradition. The Court characterized the surety’s efforts during the 180 day period as minimal and affirmed both denial of its extension motion and the summary judgment. The court held that to justify an extension of the appearance period, the surety must establish diligent attempts during the period, not after its expiration. The surety could not rely on events after expiration of the appearance period to justify its motion to vacate forfeiture of the bond. In addition, while there was some evidence that the defendant was located in Mexico by the surety’s agent, no law enforcement authority identified the defendant as required by Penal Code §1305(g).
In People v. American Contractors Indemnity Co., 2007 WL 1683823 (Cal.App. June 12, 2007) the defendant failed to appear because he was in custody on new charges in another county. The bail agent located the defendant, still incarcerated in the other county, before the 180 day appearance period expired, but he did nothing to seek exoneration of the bond, seek extension of the appearance period, toll the running of the appearance period, or inform the prosecutor or the court of the defendant’s location. When the appearance period expired, the court entered summary judgment to forfeit the bond. Within six months of the judgment, the surety moved to set it aside and exonerate the bond. The trial court granted the surety relief, but the Court of Appeals reversed. The surety could not rely on the general civil section on relief from judgments, Code of Civil Procedure §473, because that section does not apply to bail, which is governed by its own very specific statutes. The Court rejected the surety’s alternative argument that Penal Code §1305(c)(3) permitted relief with no time limit because it applied only if the defendant were re-arrested in another county on the same charges. Here, he was arrested on new charges. The Court thought that the surety had ample opportunity to obtain relief in compliance with the applicable statutes and held that the surety would have to bear the consequences of its own inaction.
In County of Los Angeles v. American Contractors Indemnity Co., 61 Cal.Rptr.3d 367 (Cal.App. 2007) the defendant failed to appear and the court entered a forfeiture. The surety filed a timely motion to vacate the forfeiture and exonerate the bond pursuant to Cal. Penal Code §1305(g) because its agent detained the defendant in Mexico and took him before a police official, but the Los Angeles prosecutor elected not to seek extradition. The trial court denied the surety’s motion because it thought the documents submitted were hearsay. The Court of Appeals reversed and directed exoneration of the bond. The surety submitted an affidavit from a Zone Coordinator of the Police of the State of Guerrero together with a photograph of the defendant and a copy of his California drivers license. The County objected that the affidavit said it was signed under penalty of perjury but did not add “under the laws of the State of California” and was not authenticated by a U.S. counselor official or a Mexican Judge. The Court held that hearsay was not a proper objection because the affidavit was not offered to prove the truth of the statements but rather to show compliance with §1305(g). The Court stated that the Legislature “undoubtedly knew requiring a bail agent in a foreign country to comply with the kind of technicalities cited by the County would result in few if any bail-jumpers ever being returned to California to face trial.” The Court also rejected the County’s objection to the bail agent’s statement that the prosecutor declined to extradite the defendant and pointed out that the County never contested the allegation or asserted that it would extradite the defendant.
People v. Allegheny Casualty Co., 161 P.3d 198 (Cal. 2007) reversed the Court of Appeal decision reported at 2006 WL 137424 (Cal.App. January 19, 2006) and held that in the absence of a record showing that the forfeiture was, or was not, declared in open court, the presumption that judicial proceedings are properly performed will control. The bond was forfeited and judgment entered against the surety. Two years later, the surety moved to set aside the judgment. California Penal Code §1305(a) requires that the forfeiture be declared in open court. There was no transcript of proceedings, and the court clerk’s minutes did not show that the forfeiture was, or was not, declared in open court. The trial court denied the surety’s motion, but the Court of Appeal reversed.
The California Supreme Court held that §1305(a) requires only that the forfeiture to be declared in open court not that the transcript or clerk’s minutes reflect that fact. If the record is silent, the Court rejected an analogy to cases dealing with continuances without forfeiting the bond, which are required to show on the record the excuse for the defendant’s nonappearance, and instead looked to Evidence Code §664 establishing a presumption that official duties have been regularly performed. Since Penal Code §1305(a) requires the forfeiture to be declared in open court, if the record is silent the presumption is that the Judge made such a declaration.
In County of Los Angeles v. Continental Heritage Insurance Co., 2007 WL 2153441 (Cal.App. July 27, 2007) the defendant failed to appear, and in due course summary judgment was entered against the surety. Two years later, the surety moved to set the judgment aside because the court lost jurisdiction over the bond when the defendant did not appear at an earlier hearing and no forfeiture was entered.
There were two co-defendants in the case, and the earlier hearing involved only the other defendant’s mental competency to stand trial. The Court agreed that under Penal Code §1305(a)(4) the court must immediately forfeit the bond if the defendant fails to appear without a sufficient excuse when he or she is lawfully required to be in court, but in this case there was no requirement that the defendant be present for her co-defendant’s competency hearing. Therefore, there was no reason to forfeit her bond for non-appearance at the earlier hearing and no bar to forfeiting it later when she failed to appear for trial.
In People v. Ranger Insurance Co., 2007 WL 2164928 (Cal.App. July 30, 2007) the defendant failed to appear on July 13, 2004, and the bond was forfeited. The surety moved to set the forfeiture aside because the defendant failed to appear on May 17 and July 12, 2004, and the court did not declare forfeitures on either date. The Court of Appeal agreed that if the defendant failed to appear without an excuse on a prior occasion there was no jurisdiction to declare the forfeiture on July 13, and the forfeiture would be set aside.
The State argued that the defendant was present on May 17. The clerk’s minutes were ambiguous, but an affidavit from the district attorney stated that her practice if a defendant did not appear was to note certain things in the case file, and the absence of such notes indicated to her the defendant was present. The Court held that evidence formed a reasonable basis for the trial court to conclude that the defendant was present on May 17.
On July 12, however, she unquestionably did not appear, and no facts were offered to suggest that there may have been an excuse. The trial court stated that she was often late on prior occasions and continued the case for one day. The Court of Appeal held as a matter of law that a record of lateness or excused absences cannot form the basis for a continuance. There was no rational basis for a finding that there may have been an excuse for the defendant’s failure to appear on July 12, and the trial court abused its discretion in not granting the surety’s motion to set aside the forfeiture. The Court vacated the forfeiture and directed that the bond be exonerated.
In People v. Lincoln National Insurance Co., 2007 WL 2258284 (Cal.App. August 8, 2007) the defendant failed to appear, the bond was forfeited, and notice was mailed to the surety. The 185 day appearance period expired on May 26, 2005. In due course a summary judgment was entered against the surety. The defendant, however, was in the custody of the California Department of Corrections during the appearance period, and upon the State’s motion the trial court entered on order on May 26, 2005, that she be returned for arraignment in the criminal case in which the bond was issued. She was returned, and the charges were dismissed by the prosecutor. She was then returned to the Department of Corrections.
The surety moved to set aside summary judgment and exonerate the bond. The State opposed the motion. The State argued that the surety’s motion had not been filed within the 185 day appearance period, and thus the court lacked jurisdiction to set aside the judgment. The trial court granted the surety’s motion, and the State appealed. The Court of Appeal made an extensive review of procedure under Cal. Penal Code §1305 and concluded that the trial court’s order on the last day of the appearance period amounted to a return of the defendant to custody. The Court held that the surety’s motion did not have to be filed within the appearance period if the defendant was returned to custody in the case within the period. The Court affirmed the trial court’s order setting the judgment aside and exonerating the bond. [Not Published].
In People v. International Fidelity Insurance Co., 2007 WL 2484097 (Cal.App. September 5, 2007) the defendant failed to appear, and the bail agent diligently, but unsuccessfully, searched for him. The surety timely moved to extend the 180 day appearance period and submitted a detailed affidavit describing the agent’s recovery efforts. The trial court denied the extension motion and eventually entered summary judgment on the bond. The surety appealed. The issue in the case was the trial court’s belief that good cause to extend the appearance period had not been demonstrated because there was an insufficient showing of likelihood of success if the extension were granted. The Court of Appeal thought that the facts of record showed a series of dead ends and no reason to think that there were other efforts the bail agent could make that would be successful. The Court stated, “we continue to believe that a showing of a reasonable likelihood of recapture is an important circumstance to be considered in determining good cause for an extension. Having the inquiry be prospective as well as retrospective serves the statute’s policy of returning fleeing defendants to custody. . . . Although the good cause showing under section 1305.4 is low, it is not non-existent.” [Not Published].
People v. Bankers Insurance Co., 2007 WL 2793118 (Cal.App. September 27, 2007) reversed the trial court and directed that summary judgment against the surety be vacated. The defendant fled to Mexico. The surety located him there and asked the District Attorney’s office several times whether it would seek extradition. The District Attorney refused to say until the defendant was actually in custody. The surety’s agents brought the defendant before a law enforcement official in Mexico, fingerprinted and photographed the defendant, and had the law enforcement official execute an affidavit in compliance with Cal. Penal Code §1305(g). While the defendant was in custody, the surety attempted to contact various people in the District Attorney’s office and left messages. The District Attorney made no response, and the defendant was released. Shortly before expiration of the 185 day appearance period, the surety moved to vacate the forfeiture and exonerate the bond. The trial court denied the motion and eventually entered summary judgment against the surety. The surety appealed denial of its motion to vacate. The State argued that the affidavit executed by the law enforcement official was technically deficient because it did not say it was executed under the law of California. The Court followed County of Los Angeles v. American Contractors Indemnity Co., 61 Cal.Rptr.3d 367 (Cal.App. 2007) and rejected that argument. The Court also rejected the State’s argument that the District Attorney did not refuse to extradite the defendant. The Court stated, “The People were informed of Barraza’s location by telephone and fax messages. All that is required to compel the prosecuting agency to make an election whether or not to seek extradition is to be informed of a defendant’s location. That was done here. The silence and inaction of the People is deemed an election not to extradite.” [Not published].
In People v. Ranger Insurance Co., 2007 WL 2876092 (Cal.App. October 4, 2007) the defendant appeared before the master calendar control judge who placed the case on standby for trial. The case was called one week later, but the defendant did not appear. His attorney was present and offered no excuse for the defendant’s absence. The court forfeited the bond, and in due course summary judgment was entered against the surety. On appeal, the surety argued that nothing in the record showed the defendant had been informed that he was obligated to appear on the continued date and, therefore, the bond could not be forfeited when he failed to appear. In California, if a defendant fails to appear when he is required to be present and the court does not forfeit the bond, it loses jurisdiction to do so later. On the other hand, if a defendant’s presence is not required, the bond cannot be forfeited. The Court held that by statute a felony defendant’s presence was required at certain points, including trial for the presentation of evidence. The defendant could not waive his presence at those points. Thus, a defendant’s presence can be required by statute as well as by court order, and the date set for trial, the master trail calendar hearing date, is one of the times his presence is required by law. Therefore, the court properly forfeited the bond when the defendant failed to appear at the continued master trial calendar hearing.
In People v. Lexington National Insurance Co., 69 Cal.Rptr.3d 738 (Cal.App. 2007) the defendant failed to appear for sentencing in a case in Yolo County, and the clerk mailed notice of forfeiture to the surety. The 185 day appearance period expired on December 23, 2005. On or before December 21, the defendant was arrested in another county and a hold placed on him for the Yolo County case. The surety filed its motion to vacate the forfeiture and exonerate the bond on December 27. There was no dispute that the surety was entitled to relief on the merits of its motion, the only issue was whether the motion had to be filed within the 185 day appearance period. The Third District Court of Appeal declined to follow the opinion of the Second District in People v. Ranger Insurance Co., 38 Cal. Rptr.3d 511 (Cal.App. 2006) and held that the trial court did not have jurisdiction to grant relief if a motion was not filed within the appearance period. The Court justified its decision by stating, “Thus, although the defendant was in custody in the underlying case within the statutory period, we cannot ignore the plain language of the statute. If the Legislature finds the failure to vacate the forfeiture and exonerate the bond unjust in such cases, it can amend the statute.”
In People v. International Fidelity Insurance Co., 2007 WL 4499080 (Cal.App. December 24, 2007) the defendant failed to appear for sentencing and judgment was entered against the surety. A recovery agent located the defendant in another state and sought help from local law enforcement officials in apprehending him. The local law enforcement personnel reported that the warrant in the NCIC said “no extradition outside of California” but they did not refuse to help the recovery agent. In the meantime, however, the recovery agent lost track of the defendant, who was driving with the recovery agent following him. The surety sought relief under Cal. Penal Code §980, which provides that the court shall exonerate the bond if the appropriate agency fails to enter the warrant in the NCIC system and the court finds that failure prevented the surety from recovering the defendant. The surety argued that the “no extradition” condition was tantamount to not entering the warrant into the system. The Court did not reach this “creative argument” because it held that the record did not show the alleged defect in the warrant prevented arrest of the fugitive. The Court interpreted the record, an affidavit from the recovery agent, as establishing that the local law enforcement officials were willing to help in spite of the no extradition condition on the warrant.
California Case Law 2006
In People v. Lincoln General Insurance Co., 2006 WL 93297 (Cal.App. January 17, 2006) the trial court’s minute order said “Bail ordered forfeited” but the court reporter’s transcript did not show that the judge actually forfeited the bond. Cal. Penal Code §1305(a) requires the court to declare the forfeiture “in open court.” The Court discussed the legislative history of that provision and held that the statute meant what it said and the Judge has to make a statement in open court not simply make an entry in the court record. The Court reversed summary judgment against the surety and ordered exoneration of the bond.
People v. Allegheny Casualty Co., 2006 WL 137424 (Cal.App. January 19, 2006) reversed the trial court and directed that the bond be exonerated because there was no court reporter’s transcript of proceedings when the defendant failed to appear and therefore no proof that the Judge forfeited the bond “in open court” as required by Penal Code §1305(a). The clerk’s minute order said the bond was forfeited, but not that it was forfeited in open court, and there were no affidavits or other proof of events when the case was called.
County of Orange v. Lincoln General Insurance Co., 2006 WL 188451 (Cal.App. January 26, 2006) held that the trial court abused its discretion in denying the surety’s motion for a 180 day extension of the appearance period. The surety submitted affidavits from its investigators describing their extensive efforts to locate the defendant and the information they had obtained. They found an address for him and spoke with the indemnitor on the bond, who agreed to help locate him. They did not guarantee that he would be recovered if the period was extended, but they stated that they believed he could be located. The Court concluded that there was no reasonable justification for not allowing the surety more time to recover the defendant and ordered that the case be remanded and the surety’s motion granted.
People v. Ranger Insurance Co., 38 Cal. Rptr.3d 511 (Cal.App. 2006) held that Penal Code §1305(c)(3) does not require the Court on its own motion to vacate the forfeiture if the defendant is incarcerated in another county within 180 days of the forfeiture, and does not automatically exonerate the bond. On the other hand, the Court also held that there is no time limit for the surety to make a motion to vacate the forfeiture under such circumstances. Thus, unlike subsections (c)(1) and (c)(2) dealing with appearance in court or arrest in the same county, subsection (c)(3) is not self-executing, but it also does not impose a time limit, and the surety does not have to file its motion to exonerate the bond within the 180 day appearance period or within any other time period.
People v. Seneca Insurance Co., 2006 WL 302404 (Cal.App. February 7, 2006) rejected the surety’s argument that the bond was void because it was for an amount less than the court had set as bail. The Court granted bail in the amount of $250,000, but the clerk mistakenly recited the bail as $100,000. The surety posted the bond in the lower amount and the defendant was released. After he failed to appear the bond was properly forfeited and judgment entered against the surety. The Court refused to set the judgment aside.
In People v. Zavala, 2006 WL 411544 (Cal.App. February 23, 2006) the trial court refused a second extension of the 180 day period. The surety’s motion was timely filed, but the trail court had entered a premature summary judgment and thought that deprived it of jurisdiction to extend the period. The trial court also, almost as an aside, stated that even if it had jurisdiction the surety had not shown good cause for the extension. The Court of Appeals, and the State, agreed that the trial court was in error on the jurisdictional issue because the summary judgment was premature, but the Court nevertheless affirmed because the trial court did not abuse its discretion in making the alternate finding that the surety’s actions to locate the defendant were not sufficient to constitute good cause for an additional extension. [Not Published].
In People v. Aegis Security Insurance Co., 2006 WL 459275 (Cal.App. February 27, 2006) the defendant twice failed to appear and twice was subsequently arrested. The surety argued that these arrests exonerated the bond. The first arrest was on an immigration charge, and the Court held that it did not exonerate the bond because the defendant was not in custody on the charge for which the bond was given. The second arrest was on the correct charge, but the trial court withdrew the warrant and reinstated the bond. It had the right to do so only if the bail did not surrender the defendant and the bail was notified of the reinstatement. There was no dispute that the bail did not surrender the defendant, but the record did not establish whether the surety was notified. There was no evidence of notice to the surety, but the State argued that the surety had the burden to prove notice was not given. The Court of Appeals remanded the case for the trial court to determine whether notice was given.
People v. Accredited Surety and Casualty Co., Inc., 40 Cal.Rptr.3d 892 (Cal.App. 2006) held that the trial court abused its discretion in refusing to extend the 180 day appearance period. Pursuant to Penal Code §1305.4, the surety timely moved to extend the time to vacate forfeiture of the bond and submitted an affidavit of the bail agent describing attempts to recover the defendant. The trial court denied the motion. The Court of Appeals discussed the factors to be considered and concluded, “The good cause showing under section 1305.4 is a low threshold for the movant. If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion.” Since the defendant was arrested within the 180 day extension period that the surety should have been granted, the Court directed exoneration of the bond.
In People v. Ranger Insurance Co., 2006 WL 979247 (Cal.App. April 14, 2006) the bail agent filed a timely motion to extend the 180 day appearance period. The court scheduled a hearing within 30 days. The motion was supported by a detailed affidavit, and the State neither filed an opposition nor appeared at the hearing. Prior to the hearing, however, the defendant was incarcerated in another county, and at the hearing the surety presented a letter showing the incarceration and that a hold had been placed against the defendant. The court exonerated the bond without first extending the appearance period. The State later moved to set aside the order exonerating the bond on the ground that the original 180 day appearance period had expired, no extension was granted, and so the court lacked jurisdiction to exonerate the bond. The court agreed, set aside its exoneration order and entered summary judgment against the surety. The Court of Appeals reversed the trial court and reinstated the exoneration order. The proper procedure would have been to extend the appearance period and then exonerate the bond, but since on the record it would have been an abuse of discretion to refuse the extend the appearance period the Court deemed the extension to have been granted. The trial court did not lack jurisdiction over the bond, and reconsideration of its order exonerating the bond was error.
In County of Orange v. Ranger Insurance Co., 2006 WL 1330337 (Cal.App. May 16, 2006) the defendant was charged on a fugitive warrant from another state. He failed to appear and the proper procedures were followed to forfeit the bond and enter summary judgment. The surety moved to set aside the summary judgment because the bond form used was not for a fugitive charge. That is, the bond form was an ordinary appearance bond rather than a fugitive bond. The Court noted that the bond was conditioned on the defendant’s failure to appear, which is what happened, and that the statute on fugitive warrants does not call for a particular form. The Court affirmed the trial court’s denial of the surety’s motion. [Not published].
People v. Ranger Insurance Co., 2006 WL 1672885 (Cal. App. June 19, 2006) affirmed the trial court’s refusal to extend the initial 180 day appearance period. The evidence submitted by the surety showed efforts to recover the defendant and some possibility of success if given more time, but not extensive efforts or any great likelihood of success. The Court reasoned that the decision was within the discretion of the trial court and that discretion was not abused because “Reasonable minds could differ as to this issue . . . .” [Not published].
In County of Orange v. Lexington National Insurance Corporation, 45 Cal.Rptr.3d 543 (Cal.App. 2006) the bond was issued with a proper power of attorney. Two months later, the surety terminated the agent’s authority and sent notice of the termination to the Department of Insurance. A month after the agent was terminated, the defendant failed to appear and the Judge declared the bond forfeited. The clerk did not send notice of the forfeiture to the surety, and the surety did not learn of the forfeiture by any other means. Two days later, the defendant appeared, the former agent consented on the surety’s behalf to resumption of the bond, and the court set aside the forfeiture and reinstated the bond. Over the next year the defendant appeared 23 times, but eventually he again failed to appear, the court forfeited the bond and the clerk mailed a copy of the forfeiture to the surety.
The surety obtained an extension of the 180 day appearance period but was unable to recover the defendant. It then moved to exonerate the bond because the clerk failed to mail notice of the first forfeiture. The trial court denied relief and entered summary judgment. On appeal the Court held that Penal Code §1305(b) requires that the surety be released if the clerk fails to mail notice of forfeiture within 30 days after entry of the forfeiture. The Court distinguished cases in which the surety received actual notice even though the clerk made a mistake such as if the notice was mailed to the wrong party but forwarded to the surety. In this case the surety was entitled to notice of the forfeiture and to decide for itself whether to reassume the bond or surrender the defendant. It was deprived of that opportunity. The Court rejected the County’s argument that vacating the forfeiture when the defendant appeared two days later obviated the need for the notice. The Penal Code requires notice of all forfeitures, not just notice of forfeitures that have not been vacated within the 30 day mailing period. The Court thought that the agent’s authority to consent to reinstatement of the bond was not relevant to the case because the statute required notice of the forfeiture whether the bond was reinstated or not. The Court stated, “Simply put, absent notice within the required period, the trial court lost jurisdiction to enter summary judgment on the bond.”
In People v. Ranger Insurance Co., 46 Cal.Rptr.3d 448 (Cal.App. 2006) the defendant failed to appear but was promptly arrested on the charge in another county. The surety, however, did not move to exonerate the bond, and after the 185 day appearance period expired, the court entered summary judgment against the surety and denied the surety’s motion to vacate the summary judgment and exonerate the bond. The Court of Appeals held that in contrast to subsections (c)(1) and (c)(2) of Penal Code §1305, under subsection (c)(3) if the defendant is arrested in the underlying case outside of the county where the case is located, the trial court is not required to act on its own motion to exonerate the bond, and the bond is not automatically exonerated. Fortunately, the Court also held that the surety did not have to move to exonerate the bond within the appearance period. The trial court had jurisdiction to grant the surety’s motion to vacate the summary judgment and exonerate the bond even though it was filed more than 185 days after mailing of the notice of forfeiture and should have done so pursuant to §1305(c)(3). The purpose of bail had been served, and the county should not receive a windfall. The Court reversed the summary judgment against the surety.
In Liberty Bail Bonds, Inc. v. Garamendi, 46 Cal.Rptr.3d 541 (Cal.App. 2006) the Insurance Department suspended the licenses of Liberty Bail Bonds, Inc and Adnan Yousef when they were charged with criminal violations. Cal. Insurance Code §1748.5 did not require any pre-suspension hearing, and none was provided. The Court affirmed suspension of the individual but held that §1748.5 applied only to individuals and therefore could not be used to suspend the license of Liberty Bail Bonds.
In People v. Safety National Casualty Co., 2006 WL 2699211 (Cal.App. September 20, 2006) the Court held that Penal Code §1306(f) barred enforcement of summary judgments after the passage of two years even though there were post-judgment appellate proceedings during the two year period. Enforcement of the judgments was never stayed while the surety appealed denial of its motions to set aside the judgments, and the State did not initiate enforcement proceedings to collect on the judgments. The Court rejected the State’s argument that the surety’s request to stay the disqualification procedures under Penal Code §1308 estopped it from now invoking the two year limitation of §1306(f). The Court enjoined enforcement of the summary judgments but expressed no opinion on whether the surety could be disqualified from writing bail in California pursuant to Penal Code §1308 for failure to pay the unenforceable judgments.
People v. Ranger Insurance Co., 2006 WL 2884934 (Cal.App. October 12, 2006) set aside judgment on a bail bond for release of the defendant pending appeal and exonerated the surety because the court did not declare the bond forfeited at the first court date after the conviction was affirmed and the defendant failed to surrender to serve his sentence. The Court reasoned that once the Court of Appeals issued the remittitur following affirmance, the defendant’s obligation to surrender was self-executing and there was no requirement that a definite date be set for him to appear. Over two years after the conviction was affirmed, the defendant had not surrendered and the trial court scheduled a hearing. The lawyers appeared but not the defendant. There was no excuse offered for his non-appearance, although it also was not clear he had been given notice, and the court did not declare the bond forfeited. Instead, it continued the case for two weeks to allow the public defender to try to locate him. When he still did not appear at the continued hearing, the court forfeited the bond. The Court of Appeals reversed because the defendant’s failure to surrender within a reasonable time was a breach, and at the first hearing thereafter the court had an opportunity and obligation to forfeit the bond. By failing to do so, it lost jurisdiction to forfeit the bond two weeks later. [Published.]
In County of Los Angeles v. Ranger Insurance Company, 2006 WL 3060077 (Cal.App. October 30, 2006) the bail agent’s assistant took a timely motion to extend the period to produce the defendant to the court and tried to file it, but the clerk erroneously refused to accept the motion and told the assistant that summary judgment had already been entered. By the time the bail agent returned from an out of town trip and learned what had happened, the time to request the extension had expired. The surety moved to vacate summary judgment because the clerk’s actions made it impossible for the surety to secure additional time to recover the defendant. The trial court denied the motion, and the Court of Appeal affirmed, because the assistant could have asked to speak to a supervisor, called the bail agent for instructions, or otherwise acted to overcome the error of the clerk. The clerk did not make it “impossible” to comply with the statute. [Not published].
In County of Los Angeles v. Harco National Insurance Co., 2006 WL 3095870 (Cal.App. November 2, 2006) the defendant failed to appear, the court ordered forfeiture of the $1 million bail bond, and the clerk mailed notice of the forfeiture. The surety timely moved for extension of the 180 day appearance period. The defendant was arrested in another state before the court ruled on the motion, but the parties apparently did not realize he had been located. The court denied the motion to extend the appearance period and entered summary judgment on the bond. No appeal was taken from the summary judgment, but after the appeal period expired, the surety moved to set aside the judgment. The trial court denied the motion, and the surety appealed. The Court of Appeal dismissed the appeal because the judgment was final and not subject to collateral attack via a motion to set it aside. The surety’s only remedy was to raise the alleged error in refusing to extend the appearance period by a timely appeal of the summary judgment.
In County of Los Angeles v. Ranger Insurance Co., 2006 WL 3334413 (Cal.App. November 17, 2006) the trial court denied the surety’s motion for an extension of the 180 day appearance period. The surety appealed from the eventual summary judgment. The Court found that the surety demonstrated diligent efforts to locate the defendant but not a reasonable likelihood of capture if granted an extension. The trial court did not abuse its discretion in denying extension of the 180 day period, and its judgment forfeiting the bond was affirmed. [Not published.]
People v. Ranger Insurance Co., 2006 WL 3377625 (Cal.App. November 22, 2006) held that “within 15 days from the date of arraignment” in Penal Code §1305(a) means within 15 days from the original date set for arraignment. The defendant was released on bond and ordered to appear on January 22, 2004. The police department twice mailed notices re-scheduling the arraignment, and the defendant appeared as directed on March 25, waived arraignment, and pled not guilty. She later failed to appear and the bond was forfeited. Penal Code §1305(a) provides that the court shall not have jurisdiction to forfeit the bond and the bail shall be released if no complaint is filed “within 15 days from the date of arraignment.”
The surety argued that jurisdiction to forfeit the bond was lost when no complaint had been filed on February 6, 2004 (15 days from the original arraignment date set when the defendant was released). The State argued that the complaint was filed on March 18, before the final arraignment date, and so complied with the statute. The Court held that the police department notices continuing the date did not change the “date of arraignment” for purposes of compliance with the statute, and jurisdiction to forfeit the bond was lost when no complaint has been filed by February 6. The decision suggests a different result if the parties had appeared and the court had continued the arraignment date.
People v. Seneca Insurance Co., 2006 WL 3742988 (Cal.App. December 21, 2006) reversed the trial court and remanded the case for exoneration of the bond. After the defendant failed to appear, the surety discovered that he was in protective custody as a witness for the District Attorney in another case and that the District Attorney had induced him to return to the United States by a guaranty that he would not be arrested on any prior charge. In the appeal, the state agreed that under these circumstances the bond should have been exonerated.
California Case Law 2005
In People v. Ranger Insurance Co., 2005 WL 91408 (Cal. App. January 14, 2005) the defendant failed to appear, a forfeiture was declared, but four days later the bond was reinstated with the surety’s consent and the forfeiture vacated. The defendant again failed to appear and the proper procedures were followed to enter judgment against the surety. The surety moved to set aside the judgment on the ground that no notice of the first forfeiture was mailed and so the court lost jurisdiction to enter judgment on the bond. Not surprisingly, the court rejected this argument and held that there was no requirement to mail notice of the first forfeiture since the bond had been reinstated with the surety’s consent. [Not published].
People v. Granite State Ins. Co., 2005 WL 236186 (Cal. App. January 25, 2005) affirmed denial of the surety’s motion to vacate a forfeiture. The defendant pled no contest and was ordered to appear for sentencing on July 29. For reasons not contained in the record, the bond itself said he was to appear on July 26. He failed to appear on either date, and the court forfeited the bond for the July 29 non-appearance. The surety argued that the entry on the bond (which the surety alleged was made by the “jailor”) was an order to appear and that when he failed to appear on the 26th and no forfeiture was entered, the court lost jurisdiction to enter the forfeiture on the 29th. The court found that the record did not establish who wrote the 26th on the bond and no appearance was scheduled for that date, therefore not appearing on the 26th was not a breach and no forfeiture could have been entered. [Not published.]
In Overland v. Superior Court, 23 Cal. Rptr.3d 676 (Cal. App. 2005) depositors of cash bail sued for interest earned on the deposits. The plaintiffs relied on U.S. Supreme Court cases involving lawyer trust accounts and argued that the state’s retention of interest earned on the deposits was an unconstitutional taking of their property. The trail court sustained the defendant’s demurrer [dismissed the case] as to pre-exoneration interest. The Court of Appeal held that the deposit was made pursuant to a contract, the contract did not provide for interest, and there was no unlawful taking. The appeal did not address interest earned after entry of the court order exonerating the cash bail but before the deposit was returned.
In People v. Aegis Security Insurance Company, 2005 WL 460039 (Cal. App. February 28, 2005) the defendant failed to appear on February 27, 2003, and the court forfeited the bond in open court. The notice of forfeiture was mailed to the surety on March 7, but it erroneously stated that March 7 was the date of forfeiture. The summary judgment later repeated the erroneous March 7 forfeiture date. The Court of Appeal affirmed the judgment and held that the erroneous date on the notice was just a clerical error, which could be corrected at any time. There was, in fact, no hearing or failure to appear on March 7, and even though the notice had the wrong date, it was mailed within 30 days of the actual forfeiture and contained all the information to which the surety was entitled by statute. The Court also granted the government’s motion that it take judicial notice of trial court’s docket but refused to take judicial notice of the trial court’s case management procedures as described in an affidavit by a deputy clerk.
People v. Ranger Insurance Company, 2005 WL 590650 (Cal. App. March 15, 2005) rejected the surety’s appeal on various procedural and evidentiary grounds. The surety argued that the defendant was in federal custody on the date he failed to appear or during the 180 day period following forfeiture. After the notice of forfeiture was mailed, the surety filed a timely motion to vacate forfeiture and exonerate the bond. The trial court was not satisfied with the evidence submitted by the surety and continued the hearing. No one appeared for the surety on the new date, and no reporter’s transcript of the proceedings that day was filed as a part of the appeal. The court entered summary judgment. The Court of Appeals did not deny that if the defendant was in federal custody, the bond could have been exonerated, but nevertheless affirmed the judgment. The court thought that the evidence submitted to the trial court, the arguments made to the trail court, and the record on appeal were all deficient and failed to establish that the surety was entitled to relief.
In People v. Aegis Security Insurance Co., 2005 WL 665339 (Cal. App. March 23, 2005) the defendant failed to appear and was arrested three months later in another county. The surety moved to exonerate its bonds under the wrong provision of the Code, subsection (c)(2) of section 1305 instead of subsection (c)(3). The trial court denied the motion without prejudice. Rather than re-file under the correct section, the surety appealed. The Court of Appeal recognized that under the admitted facts the surety was entitled to exoneration, and so reversed the trail court. The Court pointed out that the surety could have avoided the expense of an appeal by filing a corrected motion, and ordered the surety to pay the state’s costs on the appeal.
People v. Allegheny Casualty Co., 2005 WL 941473 (Cal. App. April 22, 2005) reversed a judgment of forfeiture because the “judgment” was signed by a clerk rather than by a judge. The Court held that the document was not effective to enter judgment and, since the 90 day period following expiration of the appearance period had expired, it was too late to correct the error and enter a valid judgment. The Court directed that the bond be exonerated on that ground and did not reach the surety’s alternative argument that it was entitled to relief because the judgment was entered on the last day of the extended appearance period rather than within 90 days following expiration of the extended appearance period. [Not published].
American Contractors Indemnity Company v. County of Orange, 29 Cal.Rptr.3d 916 (Cal. App. 2005) acknowledged that the certificate of mailing filed by the clerk did not comply with Penal Code §1013a(4) because it did not include the name and address of the persons served. Nevertheless, the Court affirmed the judgment of forfeiture because the bail agent admitted receiving actual notice of the forfeiture.
People v. Aegis Security Insurance Co., 30 Cal. Rptr.3d 686 (Cal. App. 2005) held that summary judgment against the surety was premature because a timely motion to extend the appearance period was pending at the time the summary judgment was entered. The Court nevertheless affirmed the judgment because the surety did not make a timely motion to set it aside or take an appeal from the judgment. Instead, the surety waited until after the appeal period expired and then filed a motion to vacate the judgment on the theory that the trial court did not have jurisdiction to grant it. The Court found that the trial court had jurisdiction over the bond and that such a collateral attack on the judgment was barred by People v. American Contractors Indemnity Co., 93 P.3d 1020 (Cal. 2004).
People v. Harco National Insurance Co., 2005 WL 1533133 (Cal. App. June 30, 2005) affirmed the trial court’s refusal to vacate judgment against the surety. During trial, one surety surrendered the defendant and Harco provided a new bond. The defendant immediately absconded, and the court forfeited the bond. Notice of forfeiture was timely mailed, but the notice referred to the wrong date of forfeiture. The surety argued that the court lost jurisdiction to enter judgment on the bond because no notice had been given of the actual forfeiture. The Court of Appeals noted that Penal Code §1305 does not require a notice to give the date of forfeiture, only that it be mailed within 30 days of forfeiture, and held that the discrepancy in the dates was a clerical error, which could be corrected at any time.
In People v. Sirius America Insurance Co., 2005 WL 1533336 (Cal. App. June 30, 2005) the extended appearance period expired on February 1, 2004, a Sunday. The surety filed a motion to vacate the forfeiture, alleging that the defendant was in custody in Mexico but the district attorney refused to request extradition. Since the appearance period expired on a Sunday, a motion filed on Monday, February 2 would have been timely. The surety’s agent stated in an affidavit that he filed the motion at 4:15 p.m. on Monday by placing it in a filing box in the clerk’s office. The clerk’s stamp on the motion, however, showed that it was received on Tuesday, February 3. The trial court found that the motion was untimely, and the Court of Appeals affirmed on the ground that the clerk’s stamp was substantial evidence to support the finding.
People v. Seneca Insurance Company, 2005 WL 1793555 (Cal. App. July 29, 2005) agreed with the surety that the trial court’s entry of summary judgment against the surety was in error because at the time the surety’s motion to vacate the forfeiture was pending, but held that the surety could not make a collateral attack on the judgment. The surety could have appealed the summary judgment or filed a timely motion to vacate it, but instead the surety waited until after the appeal period expired and moved to set the judgment aside for lack of jurisdiction. Relying on People v. American Contractors Indemnity Co., 93 P.3d 1020 (Cal. 2004) the Court held that the trial court had jurisdiction and the judgment was voidable but not void, and so not subject to collateral attack.
In People v. Ranger Insurance Co., 2005 WL 2037975 (Cal. App. August 25, 2005) the defendant was order to appear in Compton. The case was then transferred to Los Angeles and a notice of the transfer mailed to the defendant. There was no proof the defendant did or did not receive the notice which, in any case had the wrong time for appearance in Los Angeles. He did not appear and the bond was forfeited and a judgment eventually entered. On the surety’s appeal, the Court held that there can be no forfeiture unless the defendant is “lawfully required” to appear. Since he was not lawfully required to appear at the place and time the forfeiture was declared, there was no basis for the forfeiture or judgment. The case was remanded to vacate the forfeiture and exonerate the bond.
In People v. Ranger Insurance Co., 2005 WL 2083051 (Cal. App. August 30, 2005) the defendant failed to appear and “[t]he clerk’s transcript indicated that the underlying bail bond was also forfeited although the trial court did not formally recite on the record that a forfeiture had occurred.” The Court of Appeals held that Penal Code §1305(a) requires the court to declare the forfeiture on the record in open court. Since the trial court failed to comply with the statutory requirement, the bond was not forfeited when the defendant failed to appear and is exonerated by operation of law. Thus, the trial court lost jurisdiction over the bond and its subsequent summary judgment was void. [Not Published].
In People v. Ranger Insurance Co., 2005 WL 2037975 (Cal. App. August 25, 2005) the defendant was order to appear in Compton. The case was then transferred to Los Angeles and a notice of the transfer mailed to the defendant. There was no proof the defendant did or did not receive the notice which, in any case had the wrong time for appearance in Los Angeles. He did not appear and the bond was forfeited and a judgment eventually entered. On the surety’s appeal, the Court held that there can be no forfeiture unless the defendant is “lawfully required” to appear. Since he was not lawfully required to appear at the place and time the forfeiture was declared, there was no basis for the forfeiture or judgment. The case was remanded to vacate the forfeiture and exonerate the bond.
In People v. Ranger Insurance Co., 2005 WL 2083051 (Cal. App. August 30, 2005) the defendant failed to appear and “[t]he clerk’s transcript indicated that the underlying bail bond was also forfeited although the trial court did not formally recite on the record that a forfeiture had occurred.” The Court of Appeals held that Penal Code §1305(a) requires the court to declare the forfeiture on the record in open court. Since the trial court failed to comply with the statutory requirement, the bond was not forfeited when the defendant failed to appear and is exonerated by operation of law. Thus, the trial court lost jurisdiction over the bond and its subsequent summary judgment was void. [Not Published].
County of Los Angeles v. Harco National Ins. Co., 2005 WL 2387349 (Cal. App. September 29, 2005) affirmed summary judgment against the surety. The defendant failed to appear on July 9, but her counsel said she was in custody and the authorities had not transported her to court. The court re-scheduled her appearance to July 15. When she failed to appear on the 15th, the court forfeited the bond and issued a warrant. After several extensions, a timely summary judgment was entered against the surety. On appeal, the court rejected the surety’s argument that the court lost jurisdiction to declare a forfeiture when it failed to forfeit the bond on July 9. The trial court had reason to believe the defendant had a sufficient excuse (the representation by her counsel) and was not obligated to verify that she was actually in custody. The issue is not whether she had a sufficient excuse but whether the trail court had reason to believe she had a sufficient excuse. The court also rejected the surety’s argument that the defendant did not have notice of the July 15 hearing since no notice was required. [Not published].
County of Los Angeles v. American Contractors Indemnity Co., 2005 WL 2447197 (Cal. App. October 5, 2005) affirmed the trial court’s refusal to set aside summary judgment and forfeiture. The bail agent’s office moved between the time the bond was issued and the date the defendant failed to appear. The notice of forfeiture was mailed to the address on the bond, but the surety argued that the bail agent had given the court notice of his new address. The County conceded that if the trial court knew of the new address it could not simply mail the notice to the old address even though the old address was on the bond, but the County argued, and the Court agreed, that the surety failed to present competent evidence that the agent had advised the trial court of the new address. The Court also affirmed denial of the surety’s motion for reconsideration because it was not based on any evidence that could not have been presented in response to the original motion. [Not Published].
In People v. Accredited Surety and Casualty Co., 2005 WL 2542914 (Cal. App. October 12, 2005) the defendant failed to appear on April 25, 2003, and the court forfeited the bond in open court. The court also, however, continued the case to May 6 and stayed issuance of the bench warrant. The defendant failed to appear on May 6, and the clerk mailed a notice of forfeiture that incorrectly stated the date of forfeiture as May 6. The surety argued that it was never given notice of the April 25 forfeiture and so the eventual summary judgment was invalid and the bond was exonerated. The Court of Appeals reasoned that the notice was not required to state the date of forfeiture, here there was only one forfeiture so there could be no confusion as to what the notice was for, and the notice was mailed within 30 days of the forfeiture as the statute requires. Therefore, the Court concluded the notice was valid and the summary judgment proper. [Not Published].
In Kiperman v. Klenshetyn, 2005 WL 2623663 (Cal. App. October 17, 2005) the surety posted a $250,000 for the defendant’s release. Another charge was later added, and the court raised the amount of the bond to $1 million, remanded the defendant into custody and exonerated the bond. The court later reduced the second bond to $250,000, refused to reinstate the first bond, but ordered return of the premium for the first bond. The surety then posted a second $250,000 bond. A few weeks later, after the defendant had been charged with another crime and a warrant issued, the bail agent told the police that the defendant was seeking to flee, and the police arrested him on a bus out of town. The surety then “surrendered” the defendant and sought exoneration of the second bond. The court granted exoneration but directed that the premium be refunded. The bail agent appealed the orders to refund the premiums, and the Court of Appeals reversed. The Court held that as to the first bond there was no basis to even consider return of premium because the surety did not surrender the defendant. The court remanded him in response to the new charge. On the second bond, the surety did surrender the defendant, but it had good cause and under Penal Code §1300 the court may order return of all or part of the premium only if the surrender is without good cause. The Court recognized that the premium is fully earned as soon as the defendant is released without regard to the length of time he is free on the bond, and the only basis to order a refund of premium is under the limited conditions set out in §1300.
In People v. Ranger Insurance Co., 2005 WL 2740879 (Cal. App. October 25, 2005) the defendant failed to appear, the bond was properly forfeited, and notice of the forfeiture was mailed. Subsequently, the clerk erroneously noted in the court record that the bench warrant was withdrawn, but then corrected the error. The surety’s agent made substantial attempts to recover the defendant, and the agent submitted an affidavit that he believed that given more time he could locate the defendant. The surety moved to exonerate the bond or, in the alternative, to extend the appearance period for another 180 days. The trail court denied any relief. The Court of Appeals affirmed as to exoneration because the bond was properly forfeited and the clerk’s subsequent error was not a ground to set the forfeiture aside. The Court reversed as to extension of the appearance period, however, and held that under the facts it was an abuse of discretion not to grant the surety’s motion and allow another 180 days to return the defendant. [Not published.]
In People v. Ranger Insurance Co., 35 Cal. Rptr.3d 253 (Cal. App. 2005) the defendant failed to appear on January 14 and a bench warrant was issued. On January 16 he went to the clerk’s office and had his appearance re-set for January 20. He did not appear on the 20th or subsequently. Cal. Penal Code §1305(c)(1) provides that the court must exonerate the bond if the defendant appears in court within 180 days of the bond forfeiture. The issue was whether going to the clerk’s office was an appearance “in court.” The Court of Appeals held that it was not. The Court stated, “An appearance in the courthouse vestibule, hallway, restroom, or clerk’s office is not an appearance in court.” The Court also rejected the surety’s argument that the clerk had a duty to arrest the defendant pursuant to the warrant.
In People v. Allegheny Casualty Co., 2005 WL 2885771 (Cal. App. November 3, 2005) the defendant fled and was arrested in Canada, but the prosecutor elected not to seek his extradition on one felony charge on which the Canadian court held he was extraditable. The Court held that the bond was exonerated pursuant to Penal Code §1305(f). The Court distinguished cases in which the foreign government refused to extradite or the defendant was not in custody. Here, the prosecutor could have obtained the defendant but made a clear choice not to seek extradition. [Not published.]
In County of San Diego v. Harko National Insurance Co., 2005 WL 3059916 (Cal. App. November 16, 2005) the trail court entered summary judgment against the surety prior to expiration of the 185 day appearance period. The surety (spelled “Harko” throughout the opinion) filed an appeal. The Court of Appeals admitted that the judgment was voidable but nevertheless affirmed it. The Court held that the surety had to bring the procedural defect to the attention of the trial court while there was still time to correct it. The Court stated, “By failing to make an objection or motion in the trial court, Harko failed to preserve the issue for appeal.” The Court relied on language from the 2004 American Contractors case, which involved a collateral attack on the judgment not a direct appeal. The Court did reject the County’s attempt to have the appeal dismissed as untimely on the argument that the case was a “limited civil case” subject to a 30 day appeal period rather than the normal 60 days. Although the amount involved was less than $25,000, none of the procedural requirements for a limited civil case were present.
People v. Ranger Insurance Co., 2005 WL 3100990 (Cal. App. November 21, 2005) held that the County did not have to return the surety’s payment of a judgment even though the judgment was unenforceable when paid. The summary judgment was entered in 1997. After an appeal, a remand, delay when the court misplaced the file, and a second appeal, the judgment was affirmed in April 2004. The surety paid the judgment in September 2004 and then moved to set it aside and recover the payment. The Court admitted that under Penal Code §1306 a summary judgment on a bail bond becomes unenforceable after two years, but pointed out that the County was not trying to enforce the judgment. Unenforceable does not mean void, and just because the County could not enforce the judgment does not mean that the surety is entitled to recover its money.
In People v. Ranger Insurance Co., 2005 WL 3275909 (Cal. App. December 1, 2005) the defendant appeared for trial on Monday, July 7, 2003, but the case was placed on the master trial calendar, which apparently meant it came up the next Monday, July 14. On the 14th the defendant’s counsel appeared but not the defendant, and the court ordered forfeiture of the bond. Eventually a summary judgment was entered against the surety and the surety appealed from denial of its motion to set aside the judgment. The issue was whether the court could forfeit the bail when the defendant had not been specifically ordered to appear on the 14th. The Court of Appeals held that his appearance for trial was required by law, and thus the trial court had to forfeit the bond when he failed to appear or lose jurisdiction to do so later. The Court affirmed denial of the surety’s motion to se aside the summary judgment. [Not published].
County of Orange v. Ranger Insurance Co., 2005 WL 3416292 (Cal. App. December 13, 2005) affirmed denial of the surety’s motion to set aside forfeiture of its bond. The defendant failed to appear on February 2, 2004, but his attorney had spoken to the defendant’s sister who said the defendant did not realize he needed to appear. The court did not forfeit the bond and re-scheduled the appearance to February 6. When the defendant did not appear on February 6, the court forfeited the bond. The Court held that defense counsel’s explanation was a rational basis for the court to believe that the defendant had a “sufficient excuse” under Penal Code §1305(a) not to appear on February 2, therefore the failure to declare a forfeiture on the 2nd did not deprive the court of jurisdiction to declare a forfeiture on the 6th. The Court also held that there was no need to give the defendant notice to appear on the 6th beyond the direction in court on the 2nd.
County of Los Angeles v. Harco National Insurance Co., 2005 WL 3540339 (Cal.App. December 28, 2005) reversed judgment against the surety and remanded the case for exoneration of the bond. Neither the defendant nor his attorney appeared at the initial arraignment on Friday, September 26, but the attorney sent word that he was in trial and asked that the case be continued. The Judge did not forfeit the bond and continued the case to Monday, September 29. The attorney appeared on the 29th and said he could not locate the defendant. The court then forfeited the bond and eventually entered summary judgment against the surety. The Court of Appeals held that the record did not support an implied finding that the defendant had a sufficient excuse for his failure to appear on September 26. By failing to forfeit the bond on the 26th, the court lost jurisdiction to forfeit it later.
California Case Law 2004
In Cardenas v. American Surety Company, 2004 WL 206286 (Cal. App. February 4, 2004) relatives of the defendant pledged a house as collateral for the bond. The defendant was released into the custody of INS and immediately deported to Mexico. Naturally, he did not appear for trial and the bond was forfeited. The surety instituted non-judicial foreclosure against the house, and the bail agent, surety and indemnitors made a deal in which the house was sold to the agent with credit on the purchase price for the amount of the bond and various related expenses. The agent neglected to tell the indemnitors that a motion to exonerate the bond based on the deportation was filed and granted, so the agent ended up with no bond liability and the house. The indemnitors found out about the exoneration when they checked the court file on the criminal case and sued for breach of fiduciary duty, fraud, etc. The jury held for the surety and agent, and the indemnitors appealed various rulings of the trial court on motions and jury instructions. The court of appeals reversed and remanded for a re-trial. The court relied on the fact that applicable regulations provided that the collateral was held in a fiduciary capacity and that constructive fraud includes failure to disclose a material fact in breach of a fiduciary duty even though there was no intend to defraud.Interestingly, one of the few issues on which the court of appeals affirmed the trial court was denial of the indemnitors’ motion to amend their complaint to add a bad faith count. The court of appeals noted that the Cates decision was based on the unique relationship of the parties to a surety contract, not just to a construction performance bond, and stated, “We decline appellant’s request that we expand tort remedies available only in insurance bad faith actions to a claim for breach of a bail bond surety contract.”
People v. Bankers Insurance Co., 2004 WL 308146 (Cal. App. February 19, 2004) considers the circumstances under which a surety must refund premium after surrendering a defendant. The defendant was arrested for several crimes and each time posted bonds. His sister paid the premiums and secured the bonds with deeds of trust on her residence. After the third arrest the surety on the bonds for arrests number 1 and 2 surrendered the defendant arguing that its risk had been increased by the third arrest and substantial bond posted by another company. The court ordered return of the premiums for bonds 1 and 2 pro rated for the time the defendant was free on the bonds (based on a hypothetical one year term). The Court of Appeals held that the trial court did not abuse its discretion in ordering return of premium or in arriving at an amount to be returned.
In People v. Seneca Insurance Co., 2004 WL 346049 (Cal. App. February 25, 2004) the surety made a timely motion to extend the 185 day period in which the bond forfeiture could be avoided by returning the defendant. The defendant was apprehended, based on information provided by the bail agent, nine days after the 185 day period expired and while the extension motion was pending. The trial court refused to vacate the forfeiture. The court of appeals affirmed and held that filing a motion to extend the 185 day period does not automatically extend it and that nothing that happens after the 185 day period expires can constitute good cause to extend it. Therefore, the surety was limited to the grounds which existed prior to the expiration (that there was confusion getting notice to the actual bail agent whose name did not appear on the bond). The Court of Appeals found the trial court was within its discretion in rejecting this grounds.
In People v. Alistar Insurance Company, 2004 WL 377680 (Cal. App. March 2, 2004) the surety moved to extend the 180 day period to produce the defendant and submitted an affidavit explaining in detail its specific efforts to locate the defendant and why the efforts had so far been unsuccessful. The trial court denied the motion without a hearing. The Court of Appeals reversed and held that the surety had shown good cause for the extension by submitting the affidavit and the court abused its discretion in denying the motion. In fact, the state conceded that the motion should have been granted. This case is a roadmap for what needs to be done to obtain an extension of the 180 day period.
In People v. Lexington National Insurance Company, 2004 WL 386463 (Cal. App. March 3, 2004) the defendant appeared, admitted to a probation violation and was sentenced. He was granted leave to surrender six days later, and he failed to appear on the surrender date. The court ordered the bond forfeited, and a proper notice was mailed. The surety moved to vacate the forfeiture and exonerate the bond on the ground that the bond was exonerated by operation of law when the defendant was sentenced. The motion was denied. Another judge entered summary judgment against the surety, and denied the surety’s motion to discharge the forfeiture and set aside the summary judgment. The surety appealed. The prosecutor and the court recognized that the surety was correct and the sentencing of the defendant exonerated the bond. The issue was whether the forfeiture could be overruled by denying summary judgment. The court held for the surety on the ground that exoneration of the bond upon sentencing of the defendant was automatic and thus the judge declaring the forfeiture had no jurisdiction over the surety and his order was void. Therefore, the second judge had jurisdiction to deny the motion for summary judgment. Had the first judge merely been mistaken, but within his jurisdiction, then it would have been necessary to attack his order directly by appeal.
In Seneca Insurance Co. v. County of Orange, 2004 WL 575747 and 2004 WL 739847 (Cal. App. March 24, 2004) pursuant to Cal. Penal Code §1305.4 the surety obtained an extension of the period for bond forfeiture. The day before it was to expire, a police detective, apparently acting at the behest of a bounty hunter and the indemnitor on the bond, went to the Judge in chambers and obtained another extension. The defendant was not surrendered and summary judgment was entered against the surety within the statutory 90 days from the expiration of the second extended period. The surety moved to set aside the judgment and exonerate the bond because the 90 day period from the original extension had expired and §1305.4 was not followed in procuring the second extension. The trial court denied the surety’s motion and the surety appealed. The Court of Appeals held that the second extension was improper and considered whether the surety was estopped to assert that fact as a defense. The key to the case was the fact that neither the surety nor the bail agent asked for the second extension or even knew about it in advance. The police detective acted, at most, for the bounty hunter who was not the actual or apparent agent of the surety for purposes of requesting an extension. The Court held that the surety was correct and the 90 day period within which judgment could be entered had expired because it must be computed from the expiration of the first, legitimate extension, the trial court lacked jurisdiction to grant the second extension, and the surety was not estopped to assert the lack of jurisdiction.
In County of Orange v. Bankers Ins. Co., 2004 WL 625290 (Cal. App. March 30, 2004) the defendant posted two bonds on two separate charges. The same agent provided both bonds, but with different sureties. The defendant failed to appear on the charge for which Bankers was surety on the bond, and the agent requested an extension of the 180 day period to produce the defendant and exonerate the bond. During the continued period, the agent received a copy of the other bond marked exonerated by the court clerk. The agent assumed that meant the defendant had been apprehended and took no further action on the Bankers bond. In fact, exoneration of the other bond was a mistake. In due course, summary judgment was granted on the Bankers bond. The Court of Appeals held that the extended forfeiture period had expired, the trial court no longer had jurisdiction to set aside the forfeiture, and in any case, the mistaken exoneration of the other bond was not a basis to grant relief from forfeiture of Bankers’ bond.
People v. Ranger Ins. Co., 2004 WL 625817 (Cal. App. March 30, 2004) held that a court has no jurisdiction to grant relief from forfeiture once the 180 day period (plus any extensions) has expired. The defendant was incarcerated in another state, and the bail agent called the court clerk and told her of the incarceration, but no motion was filed until after the 180 day period expired. Had a timely motion been made, the surety would have been entitled to have the forfeiture set aside and the bond exonerated. Because a timely motion was not filed, summary judgment on the bond could not be set aside.
In County of Orange v. Continental Heritage Ins. Co., 2004 WL 870847 (Cal. App. April 23, 2004) the surety asserted three reasons why the bond forfeiture should be set aside. The Court rejected each claim because the surety could not establish the factual predicates for its arguments. The surety argued that the court failed to forfeit the bond when the defendant first failed to appear, but the Court held there was sufficient excuse for the initial failure to appear because the defendant was present when the case was called but his attorney was not. Later that day when the case was called again the attorney was present but the defendant was not. The attorney said he spoke to the defendant and told him the matter would be continued. The Court held that this was good cause to continue the matter without forfeiting the bail bond at that time. Second, the surety argued that the warrant was not entered in the National Crime Information System. The evidence, however, showed that it was entered, and in any case the surety failed to prove that the alleged absence of the warrant prevented it from recovering the defendant. Third, the surety claimed it had no evidence it received notice of the forfeiture, but the record included the clerk’s sworn declaration of mailing. The court noted that the statute requires only the notice be mailed, and stated “The surety’s failure to keep adequate records is not a ground for vacating the forfeiture.”
In The People v. Ranger Insurance Co., 2004 WL 885767 (Cal. App. April 14, 2004) the bonds were forfeited in July 1996. At the time the custom was that the court had a 30 day “grace period” in which to rule on a timely motion to extend the 180 day period in which the forfeiture could be set aside. At the surety’s request, two extensions were granted after the original period had expired. The defendant did not appear, and summary judgment was eventually granted on the forfeitures.
In 1998 the courts decided there was no grace period and the extension had to be granted before the original 180 day period expired (the 30 day grace period has since been restored by statute). The surety then claimed that the trial court did not have jurisdiction to grant summary judgment on its bonds because the judgment was not entered within 90 days of the expiration of the original 180 day period even though it was within 90 days of the expiration of the erroneously extended period. The trial court rejected the surety’s argument, and in a prior decision, the Court of Appeals held that the surety was correct and the judgment invalid but remanded the case for the trial court to determine whether the surety was equitably estopped to assert the invalidity since it was the party which procured the extension.
After remand, the trail court lost the file and the case sat for several years. The surety moved to dismiss for want of prosecution. The Court of Appeals affirmed the trial court’s denial of the motion and its finding that the surety was equitably estopped to assert the invalidity of the original summary judgment.
In People v. Seneca Insurance Company, 2004 WL 1167397 (Cal. App. May 26, 2004) the defendant failed to appear for arraignment but no complaint had been filed and the arraignment was continued. He also failed to appear on the new date, and the bond was forfeited. The clerk, however, mailed the bail agent’s notice of forfeiture to the wrong address. The state represented that the bail agent was present in court, however, and thus received actual notice of the forfeiture. The appeal decided three issues. First, the court held that the failure to forfeit the bond at the first non-appearance was not a defense because the arraignment could not have gone forward so the defendant’s presence was not lawfully required. Second, the court held that the defendant was not entitled to notice of the continued date since it was stated in open court on the first date and he should not profit by his failure to appear. Third, the statute, Cal. Penal Code §1305(b), requires written notice to the bail agent and surety, and there was no dispute that the bail agent did not receive written notice because of the clerk’s error in addressing the envelope. Actual, but not written, notice does not satisfy the statutory requirement. The court, therefore, reversed the judgment and held that the surety’s motion to vacate the forfeiture and exonerate the bond should have been granted.
In People v. Accredited Surety and Casualty Co., 2004 WL 1211863 (Cal. App. June 3, 2004) the surety timely moved to set aside forfeiture and exonerate the bond and in support relied on an Albanian certificate showing that the defendant died. The government relied on a witness, an alleged expert on the Albanian criminal gang of which the defendant was a member, who testified that in his opinion the death certificate was false. The government also submitted letters from Interpol indicating that the defendant was alive at times after the death certificate indicated he was dead. The Court of Appeals held that the surety had not met its burden to show that the trial court abused its discretion in refusing to set aside the forfeiture, in part because the record did not include a transcript of the expert’s testimony so the Court could not review the trial court’s decision to believe it. [Not published.]
In People v. American Contractors Indemnity Company, 2004 WL 1405744 (Cal. App. June 24, 2004) the surety sought relief from forfeiture because within 185 days of mailing of the notice of forfeiture the defendant voluntarily appeared in the clerk’s office and had a new court date set. When he did not appear for the new date, no new forfeiture was entered. The Court assumed, without deciding, that appearing in the clerk’s office was appearing in court within the meaning of Cal. Penal Code §1305(c)(1). It nevertheless refused to set aside the forfeiture because it found that the record before it on appeal failed to establish the defendant had personally appeared. The surety had the burden of establishing a basis to reverse the trail court, and the factual record was inadequate to do so. [Not published].
County of Los Angeles v. Granite State Insurance Company, 2004 WL 1464892 (Cal. App. June 30, 2004) held that the surety’s motion to set aside summary judgment and exonerate the bond should have been granted. The defendant failed to appear on February 13, 2001, and the judge issued a bench warrant and forfeited the bond. Inexplicably, the clerk’s minute order said the bond was not forfeited and the bench warrant held until March 6. On March 6 the defendant did not appear and the bench warrant was issued and the bail bond again forfeited. This time the clerk mailed a notice to the surety on March 9 but the notice specified only the March 6 forfeiture. Cal. Penal Code §1305(b) requires that the surety shall be released if notice of forfeiture is not mailed within 30 days after entry of the forfeiture. The Court held that the clerk could not overrule the judge and the forfeiture occurred on February 13 and the March 9 notice, although mailed within 30 days, could not be stretched to encompass the February 13 forfeiture. [Not published].
People v. American Contractors Indemnity Company, 2004 WL 1552061 (Cal. App. July 12, 2004) acknowledged that the trial court erred in entering summary judgment on a bail bond forfeiture before ruling on the surety’s timely motion to vacate the forfeiture. The Court of Appeals nevertheless refused to reverse the trial court’s denial of the surety’s motion to set aside the summary judgment. The Court noted that the motion to vacate was heard and denied on its merits a few days after the summary judgment was granted and held that while the surety could have appealed from the erroneous summary judgment it could not show exceptional circumstances justifying a collateral attack on the judgment via the motion to set it aside. [Not published].
People v. American Contractors Indemnity Co., 16 Cal. Rptr.3d 76, 93 P.3d 1020 (Cal. 2004) is a rare California
Supreme Court decision on a bail bond issue. The trial court entered summary judgment against the surety on the 185th day after the notice of forfeiture was mailed. The summary judgment was therefore premature. The surety, however, did not move to set it aside before it became final or file an appeal (either of which would have alerted the government and the court to the error and allowed them to correct it). Instead, the surety waited until it was too late to enter a new summary judgment and then filed a motion to set aside the summary judgment, discharge the forfeiture and exonerate the bond.
If the summary judgment were void, the surety would prevail. The Supreme Court, however, held that the summary judgment was only voidable. That is, the trail court had jurisdiction over the parties and the subject matter but acted in excess of its statutory jurisdiction by entering the judgment prior to expiration of the 185 day appearance period. The Supreme Court held that a voidable judgment must be timely attacked by a motion to set aside before it becomes final or an appeal, and that it is not subject to collateral attack by an untimely motion to set it aside unless special circumstances prevented a timely motion or appeal. Here there were no such special circumstances, so the surety’s untimely motion to set aside the erroneous summary judgment was properly denied. [Published].
People v. Lexington National Ins. Co., 2004 WL 1663579 (Cal. App. July 27, 2004) allowed the bail agent to appeal in the surety’s name but denied relief from the bail forfeiture. The defendant pled guilty and bail was continued pending sentencing. The court warned the defendant that he faced a substantially longer sentence if he failed to appear and indicated that it wanted the bail agent to agree that the bail continued in force. The bail agent did not agree, and the defendant did not appear for sentencing. The Court of Appeals held that the guilty plea, unlike a conviction after trial, did not require the court to remand the defendant into custody unless it made certain specific findings. The fact that the trial court apparently was confused or had doubts and wanted the bail agent’s consent did not change the statutory procedure. The failure of the bail agent to consent to continuation of the bail was not a constructive surrender of the defendant.
People v. Safety National Casualty Co., 2004 WL 1839154 (Cal. App. August 18, 2004) held that the surety was not entitled to have the forfeiture set aside and its bond exonerated. The defendant fled to Korea where a representative of the surety located him and took him to a local police station. The issue was whether the prosecutor elected not to seek extradition, which is one of the elements that Penal Code §1305(g) requires. The prosecutor did not act quickly, but eventually initiated an extradition request. The court held that even if inactivity can equal an election not to seek extradition, the trial court’s finding that the prosecutor did elect to seek extradition was supported by substantial evidence. [Not published].
In People v. National Automobile and Casualty Insurance Company, 18 Cal. Rptr.3d 357 (Cal. App. 2004) the parties wanted to continue a motions hearing. The trial court agreed, but instead of simply continuing the hearing date, it said that the defendant and his counsel need not appear but left the case on the docket for the original date and at that time purported to forfeit the bond but took the forfeiture and a bench warrant under advisement. When the defendant appeared at the agreed-upon continued date, the court purported to vacate the forfeiture and reinstate the bond. After various other proceedings, the defendant failed to appear for sentencing, and the court forfeited the bond.
The surety argued that the court had no jurisdiction to forfeit the bond at the sentencing because no notice was given of the purported forfeiture on the original date for the motions hearing and no prior notice was given when the bond was reinstated. The Court of Appeals held that once the defendant was excused from appearing on the date the motion was originally to be heard, his presence was not “lawfully required” within the meaning of Penal Code §1305(a) and therefore the bond could not be forfeited for his failure to appear and therefore the court did not have jurisdiction to declare a forfeiture, and its purported forfeiture was void. Since the bond was not actually forfeited, it could not be reinstated when the defendant appeared for the continued motions hearing. Thus, no notice to the surety was required. In effect, the Court of Appeals disregarded the trial court’s procedural errors in purportedly forfeiting and reinstating the bond, and looked at the actual substance of the events which was a simple continuance of the hearing.
In County of Los Angeles v. Lexington National Ins. Co., 2004 WL 2404587 (Cal. App. October 28, 2004) the surety obtained the one permitted extension of the 180 day period to surrender the defendant and avoid a summary judgment on the bond forfeiture. For some reason, the court on its own granted another extension and entered summary judgment after expiration of this second extension. The Court of Appeals reversed and remanded for entry of an order exonerating the bond because the summary judgment was not entered within 90 days after the proper extension expired and, therefore, the bond was exonerated by statute. [ Not Published].
People v. Heritage Bail Bonds, 2004 WL 2581126 (Cal. App. November 15, 2004) rejected an attempt by sureties that had prevailed in an earlier appeal to recover their attorneys fees as a part of the “costs” awarded to the prevailing party. [Not published.]
In People v. Accredited Surety and Casualty Co., 2004 WL 2650999 (Cal. App. November 22, 2004) the defendant was located and arrested in Kentucky on the California fugitive warrant. He was released there on bail before the California authorities were informed. He was allegedly terminally ill, and rather than seek extradition the district attorney dropped the charges in return for restitution. The surety sought relief from forfeiture. The surety’s primary argument was that Penal Code §1305(c)(3) required relief because the defendant was arrested outside of the County in which the charge was pending. The Court held that §1305(c)(3) applies only if the defendant is arrested or surrendered in another California jurisdiction. In the alternative, the surety sought relief under §1305(d), (f) and (g). The Court rejected all three arguments by reading the statute very literally. Subdivision (d) applies if the defendant is dead or permanently unable to appear because of illness, but there was no showing that the “terminal” illness prevented him from appearing. Subdivision (f) applies if the defendant is in custody outside of California and the prosecutor elects not to seek extradition. Here, he had been released before the prosecutor elected not to seek extradition. Subdivision (g) applies if a bail agent temporarily retains the defendant outside of California in the presence of local law enforcement authorities. That did not happen here since the defendant was arrested. The net result is that the surety pays the bail forfeiture even though the prosecutor could have had the defendant back but did not want him. [Not published.]
In People v. Accredited Surety & Casualty Co., 2004 WL 2729593 (Cal. App. December 1, 2004) the defendant was charged with possession with intent to distribute at least 44 pounds of cocaine. He also had a prior drug-related conviction and faced a potential sentence of 25 years. His bond was reduced from $2 million to $20,000 pursuant to a stipulation between the defendant and the state, and without making any of the findings required by Penal Code §1275 for bail reduction. The surety posted the $20,000 bond. After the defendant failed to appear for sentencing, the bond was forfeited. The court affirmed denial of the surety’s motion to set aside the forfeiture and exonerate the bond. The court rejected the surety’s arguments that the bond was discharged by the failure to follow the procedure mandated by §1275 and the state’s failure to inform the surety of the amount of cocaine or the prior drug charge. It appears that the bond reduction was part of a deal for the defendant to a act as an informant. The bail agent stated that he assumed certain things from the fact of the bail reduction. The court held that, “Noncompliance with section 1275 is not a cognizable ground for exoneration nor a defense to forfeiture of a bail bond.” The court also held that the state had not misled the surety, and any lack of knowledge was attributable to the bail agent’s failure to examine the court record. [Not Published].
People v. American Surety Company, 2004 WL 2729781 (Cal. App. December 1, 2004) held that the record on appeal was inadequate to overcome the presumption that the trial court acted properly in denying exoneration of the bond. The bond covered several separate charges. The defendant pled guilty to the motor vehicle charges and was granted probation, but he was ordered to a diversion program on the drug charge. He was to appear on a date certain to show that he had attended the drug programs. He failed to appear and the bond was forfeited. The record did not establish that he pled guilty to the drug charge or that he was granted probation on it or that the diversion was pursuant to a Penal Code section that would have exonerated the bond. [Not Published].
People v. Aegis Security Insurance Company, 2004 WL 2809520 (Cal. App. December 8, 2004) is an object lesson in the precise use of language. The defendant was convicted and bail set pending sentencing at $1,560,000. The surety, apparently through a program with Capital Bonding Corp., posted the bail by two bonds, one for $1 million and one for $560,000. Separate powers of attorney were attached to each bond. The powers said that the obligation of the company shall not exceed $1 million and had “anti stacking” language which said the bond was void “if more than one such power is attached.” The powers also said, “no more than one power from the surety may be used to execute any one bond.” The Court pointed out that the surety could have limited the agent’s authority to $1 million per case or per defendant but did not. The literal prohibition of the powers was not violated because only one power was used on each bond. The decision has a good survey of California cases on anti stacking provisions and implicitly acknowledges that such provisions will be enforced as written.
The surety also argued that forfeiture should be set aside because the name of the agent was not filled in on the powers. There was no dispute, however, that the agency, Apo’s Bail Bonds, was authorized, and the agent signed the power. The court held that there was no requirement that the agent’s name also be printed and that the blank did not render the powers too uncertain or misleading to be valid. [Not Published].
People v. Anyway Bail Bonds, 2004 WL 2809343 (Cal. App. December 8, 2004) affirmed denial of the surety’s motion to vacate bond forfeiture. The clerk’s minutes indicated that the defendant was in court on a date within 180 days of forfeiture (which would have exonerated the bond) but the court found that the entry was clearly an error and the defendant was not actually present. The surety presented no evidence to show the defendant was present other than the minute entry. The court also rejected the surety’s argument based on alleged failure to enter the warrant into the national warrant system because the surety made no showing that such a failure impacted its ability to recover the defendant. [Not Published.]
In People v. Amwest Surety Insurance Company, 22 Cal. Rptr.3d 810 (Cal. App. 2004) the defendant did not appear and the clerk’s minutes said the bond was forfeited, but the transcript showed that the court did not forfeit the bond in open court as required by Penal Code §1305(a). The required notices were mailed, the appearance period extended, and summary judgment entered against the surety. No appeal was taken, but more than two years later the surety moved to set aside the judgment and exonerate the bond. The issue in the appeal was whether the judgment was void, in which case it could be collaterally attacked, or merely voidable, in which case it could be appealed but not collaterally attacked after it became final. The Court held that failure to declare the forfeiture in open court meant that the bond was exonerated and the court lost all jurisdiction to later enter the summary judgment, so the judgment was void and subject to collateral attack.
California Case Law 2003
People v. Ranger Insurance Co., 134 Cal. Rptr.2d 199 (Cal. App. May 19, 2003) rejected the argument that the court lost jurisdiction to forfeit the bond when it failed to declare forfeiture on the first date the defendant did not appear.
People v. Ranger Ins. Co., 2003 WL 21205949 (Cal. App. May 23, 2003) rejected the surety’s argument that the bond was exonerated by failure to notify the surety within 30 days of forfeiture. The defendant failed to appear and the bond was forfeited, but he appeared the next day with the bail agent and the bond was reinstated. He subsequently failed to appear for sentencing and the bond was forfeited. The Court made short work of the argument that failure to give notice within 30 days after the first forfeiture was fatal.
In People v. Granite State Ins. Co., 2003 WL 21227856 (Cal. App. May 28, 2003) the defendant failed to appear and the bail bond was forfeited. The defendant appeared the next day. The court released her for one day on her own recognizance to obtain reinstatement of bail. Granite, through its agent, signed a letter reinstating the bond. After pleading guilty, the defendant did not appear for sentencing, and the bond was forfeited. The court of appeals rejected a list of arguments based on the earlier forfeiture and reinstatement. It held that Granite had voluntarily resumed its obligations and was estopped to deny them later.
People v. Ranger Ins. Co., 2003 WL 21228415 (Cal. App., May 28, 2003) affirmed forfeiture of bond after the trial court accepted the defendant’s guilty plea, told him what sentence to expect, and released him on bond pending return for sentencing. The court held that only actual sentencing constitutes pronouncing judgment. The court also held that Cal. Penal Code §1166 requires remanding the defendant into custody only after a verdict and does not apply to a guilty plea.
County of Los Angeles v. American Contractors Indemnity Company, 2003 WL 21366706 (Cal. App. June 13, 2003) affirmed denial of a motion to vacate forfeiture of a bond because the defendant was released after pleading guilty. This is another case following People v. Seneca Insurance Company and holding that Cal. Penal Code Section 1166 does not apply following a guilty plea.
People v. Ranger Insurance Co., 2003 WL 21660336 (Cal. App. July 16, 2003) held that “the bail” in Penal Code §1305(c)(4) requiring notice to the bail prior to reinstatement of the bond was the surety company, but nevertheless denied relief because notice to the bail agent was notice to the surety company.
People v. Frontier Pacific Ins. Co., 2003 WL 21663680 (Cal. App. July 16, 2003) is another in a series of cases holding that a guilty plea is not a conviction under Penal Code §1166.
In People v. Ranger Ins. Co., 2003 WL 21929474 (Cal. App. August 13, 2003) the defendant, a Lebanese national, fled to Lebanon. The bail recovery agent located him there, took him into custody and had him identified by the mayor of the town. The surety alleged that the Lebanese police stated they would surrender the defendant at the airport if they received a federal warrant through Interpol. The United States, however, has no extradition treaty with Lebanon. The Court affirmed refusal to vacate forfeiture of the $450,000 bail bond. Cal. Penal Code section 1305(g) allows exoneration of the bond if the defendant is located in another jurisdiction and the prosecutor elects not to seek extradition. Extradition, however, must be feasible. The prosecutor is not required to attempt the impossible. The Court concluded that extradition was not feasible and that the surety had not established that the prosecutor could be a party to “a procedure which does not comport with the extradition process.”
People v. Granite State Insurance Co., 2003 WL 22172412 (Cal. App. September 22, 2003) held that a timely judgment properly entered following forfeiture could be corrected to name the surety company rather than the bail agent as the surety even though the 90 day period to enter judgment against the surety had run at the time of the correction. It was clear throughout the file that Granite was the surety, but the judge erroneously entered the judgment against the bail agent, Exit Bail Bonds. Clerical errors in judgments can be corrected, and the court of appeals held that there was no evidence the Judge actually meant to hold the agent liable instead of the surety.
In People v. American Contractors Indemnity Company, 2003 WL 22300590 (Cal. App. October 8, 2003) the surety moved to set aside summary judgment on a bail bond because the summary judgment had been entered before expiration of the 185 day period in which the defendant’s appearance would exonerate the surety. The court twists around about whether the trial court really lacked jurisdiction to grant the summary judgment. The surety did not appeal the summary judgment and waited until the time in which the court could enter judgment had passed before it moved to set aside the judgment. The court of appeals characterizes this as trifling with the courts. The court clearly stretched for a way not to let the surety out on what the court regarded as a technicality, and in doing so admitted that its result was inconsistent with two other recent cases. The court held that the premature judgment was only “voidable” and should have been challenged directly by appeal and that the surety was now estopped to make a collateral challenge by motion to set aside the judgment.
In People v. Accredited Surety & Casualty Co., 2003 WL 22434669 (Cal. App. October 28, 2003) the bail bond was issued for an alias name, but the defendant was subsequently arraigned under his correct name. The defendant failed to appear and notice of bail forfeiture was mailed to the surety. The name problem caused confusion in attempting to apprehend the defendant. The bail agent filed several different motions to vacate the forfeiture and exonerate the bond. Various extensions of the 180 day period in which such relief can be requested were also made. The motions were eventually denied and summary judgment entered against the surety. On appeal the court reversed the judgment and exonerated the bond on purely procedural grounds.
Under the California statutory scheme, if the defendant appears, surrenders or is arrested within 180 days from notice of forfeiture (185 days if notice is mailed), the forfeiture is vacated and the bond exonerated. The 180 day period can be extended only if the request is made prior to expiration of the period. If the 180 day period expires, the court loses jurisdiction to grant an extension and must enter summary judgment against the surety within 90 days of the expiration. The bail agent’s request to extend the 180 day period was granted, but it had been made too late. Therefore, the court did not have jurisdiction to grant it, and summary judgment had to be entered within 90 days of the expiration of the original 180 day period (in this case 185 days because notice was mailed). The summary judgment was entered within 90 days of the end of the erroneously extended period but not within 90 days of the expiration of the original period, therefore the trial court had no jurisdiction to enter the summary judgment.
People v. Alistar Insurance Company, 2003 WL 22435764 (Cal. App. October 28, 2003) affirmed the trial court’s refusal to set aside summary judgment against the surety. The defendant was charged with three separate offenses and three separate orders were entered admitting him to bail, none of which were in the amount of the bond. A single bond was issued and accepted. The court held that the defect predated the surety bond and so was waived by the bond’s issuance and that, in any case, the bond contract should be enforced even if technically not in compliance with the court’s orders. The court also found that the clerk’s proofs of service and docket entries were sufficient evidence to support the trial court’s finding that notice of forfeiture was received even though the bail agent and surety denied receipt.
People v. American Contractors Indemnity Company, 2003 WL 22480588 (Cal. App. November 4, 2003) denied a petition for rehearing of People v. American Contractors Indemnity Company, 2003 WL 22300590 (Cal. App. October 8, 2003) but re-wrote the section of the earlier decision addressing the court’s jurisdiction to enter summary judgment before expiration of the 185 day period following mailing of the notice of forfeiture. The California Supreme Court granted review of the revised decision, People v. American Contractors Indemnity Company, 81 P.3d 223 (Cal. 2003).
People v. American Contractors Indemnity Co., 2003 WL 22753648 (Cal. App. November 21, 2003) reverses summary judgment on a bail bond and directs that the surety be exonerated. The defendant failed to appear on May 21 but her attorney indicated she had car trouble. The court forfeited the bond but stayed the bench warrant. The defendant appeared on May 23 and the bail was reassumed. On June 11 the defendant again failed to appear, the bond was again forfeited, and this time notice of the forfeiture was given to the surety and bail agent. They were not given timely notice of the May 21 forfeiture. The Court of Appeals held that failure to give notice of the May 21 forfeiture deprived the trial court of jurisdiction over the bond and the subsequent forfeiture was void. The Court specifically stated that (1) no prejudice need be shown from failure to give the statutory notice of a bail forfeiture, (2) notice is required for every forfeiture, (3) a forfeiture order cannot be stayed, the proper statutory procedure is to continue the case without ordering forfeiture, and (4) the judge’s intent is to be found from his or her own words not the clerk’s minute orders. In this case the Sixth District Court of Appeal does not mention the collateral attack/estoppel argument of the Fourth District Court of Appeal in People v. American Contractors Indemnity Co., 2003 WL 22300590 (October 8, 2003), on rehearing WL 22480588 (November 4, 2003) even though it appears that the surety followed the same procedure and moved to set aside the judgment of forfeiture as made without jurisdiction rather than directly appealing its entry.
In People v. Gutierrez, 2003 WL 22766041 (Cal. App. November 24, 2003) the bond was for $215,000 and the premium was $21,500. The defendant’s mother paid $2,100 and pledged her house as security for the bond. She did not make any more premium payments, and the bail agent surrendered the defendant two months after the bond was posted. The defendant had not violated any terms of release, but the bail agent claimed he had given misinformation in obtaining the bond. The bail agent asserted that the balance of the premium was due, and the court ordered him to show cause why the premium should not be refunded under Cal. Penal Code §1300 (b). The trial court held that there was no good cause for the surrender, reduced the premium to $4,500 and reduced the lien on the mother’s property to $2,400 (the unpaid balance of the $4,500). The Court of Appeals held that the bail agent failed to demonstrate any abuse of discretion by the trial court and affirmed the order.
In People v. Allegheny Casualty Company, 2003 WL 22794427 (Cal. App. November 25, 2003) conditions of release were ordered including that the defendant not drive, not possess alcohol, and attended Alcoholics Anonymous meetings. He failed to appear for his next court date, and the bond was forfeited. The appeal raised two issues.
First, the surety argued that imposition of conditions in addition to appearance invalidated the bail contract. The court pointed out that the forfeiture was only for failure to appear, a risk that the surety unquestionably assumed. The court thought that violation of the additional conditions would not have resulted in forfeiture of the bond and, therefore, did not increase the surety’s risk. The court stated, “There is no suggestion in the record that violation of any of those conditions would result in the forfeiture of his bond.”
The second issue was that the trial court entered summary judgment against the bail agent as well as the surety. The government conceded that was error, and the court of appeals directed the trial court on remand to remove the bail agent as a judgment debtor.
People v. Bankers Insurance Co., 2003 WL 22977551 (Cal. App. December 19, 2003) held that the failure of the bondsman’s lawyer to follow instructions to move to extend the 185 day period in which the surety could seek to exonerate the bond forfeiture did not allow the court to consider an untimely motion to exonerate the bond.
In People v. Granite State Ins. Co., 2003 WL 22994541 (Cal. App. December 22, 2003) the court held that the 90 day period in which the court had jurisdiction to enter summary judgment against the surety commenced on the date the surety’s timely motion to set aside forfeiture and exonerate the bond was denied. Once forfeiture is entered, there is an 180 day exoneration period (185 days if notice is mailed to the surety) which can be extended up to another 180 days. If the surety files a timely motion to exonerate the bond (i.e. files before the expiration of the 180 day period plus any extensions) then the date upon which summary judgment can first be entered against the surety is the day following the denial of the motion. The 90 day period starts upon denial of a timely motion not upon expiration of the period in which the motion had to be filed.
People v. Alistar Ins. Co., 2003 WL 23100265 (Cal. App. December 31, 2003) presents two issues. First, the surety moved to extend the 180 day period to set aside the forfeiture, but noticed its motion for hearing six days after the expiration of the 30 day period in which such motions may be granted. By statute, the 30 day period may be extended for good cause, but here the court never was asked to extend it. The Court of Appeals, however, rejected the government’s argument that the 30 day period was jurisdictional and held that since the trial court heard and decided the motion, and the state did not object to its being heard, the court of appeals would presume that there was good cause to extend the 30 day period.
The trial court however, denied the motion on its merits and refused to extend the 180 day period. The Court of Appeals reversed the trial court and held that the fairly detailed affidavit filed by the surety detailing the efforts of its investigator to locate the defendant was grounds to extend the 180 day period. The state argued only that the bond had been written without sufficient collateral, which the Court found to be irrelevant to the question. The Court pointed out that the law should avoid forfeitures and that the purpose of the bond is to give the surety an incentive to locate and return the defendant not to raise money for the state through forfeitures.