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.
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