Posted 10/13/2014

In People v. Accredited Surety and Casualty Co., Case No. F067506 (Cal.App. October 9, 2014) the defendant failed to appear for arraignment on charges in Fresno County, and the surety was sent notice of forfeiture of the bond.  Within the appearance period, the defendant was arrested in Sacramento County and a hold placed on him by the Fresno County Sheriff.  Penal Code §1305(c)(3) would have entitled the surety to relief had it filed a motion to vacate the forfeiture and exonerate the bond before expiration of the appearance period.  However, it filed its motion after the appearance period expired but within the 20 day period provided by recently enacted Penal Code §1305.6(b) which provided that “Upon a showing of good cause, a motion brought pursuant to paragraph (3) of subdivision (c) of Section 1305 may be filed within 20 days from the mailing of the notice of entry of judgment under Section 1306.”  The issues were what is “good cause” under §1305.6(b) and did the surety meet that requirement.

The Court held that to show “good cause” the surety had to establish that it acted in subjective good faith and that it acted reasonably.  The Court found no facts suggesting bad faith.  However, the less than complete record did not establish that the surety acted reasonably.  The bail agent’s Declaration stated that he believed the defendant would be returned from Fresno County upon completion of the proceedings there and described unsuccessful efforts to obtain information from the Fresno County Clerk’s office and an erroneous printout that he understood to show the bond had been exonerated (in fact it was for another bond posted by a different agent). The Declaration stated that the bail agent believed the defendant would be returned to Fresno County based on the bail agent’s experience, but also stated that he had limited experience.  The record did not explain why the agent misinterpreted the court’s printout, which the general agent correctly understood.  The Court concluded, “Based on the record before us, we cannot find the bail agent reasonably believed Williams would be returned to Fresno County before the appearance period expired.”  The Court therefore affirmed the trial court’s order denying the surety’s motion to set aside summary judgment, discharge forfeiture and exonerate the bond.  [Published].

In Palmetto Surety Corp. v. State, Case No. 2D13-6095 (Fl.App. October 8, 2014) the defendant failed to appear, but a few days later, on the same day the Clerk issued the notice of forfeiture to the surety, the defendant’s dead body was discovered.  The surety appealed denial of its motion to set aside estreature of the bond.  The surety argued that it had diligently monitored the defendant and attempted to locate him prior to learning of his death.  The State argued that the surety had to show it surrendered or apprehended the defendant.  The Court did not reach that argument because it found that the general affidavit submitted by the surety in the trial court was insufficient to establish entitlement to remission.  The Court concluded, “Palmetto failed to recite, by affidavit or actual evidence, what specific efforts it made to show that it substantially attempted to procure the return of the defendant. . . . Accordingly, we find no abuse of discretion in the trial court’s denial of Palmetto’s motion.