Posted 7/25/2015

In 1st Out Bail Bonds, LLC v. Washington County Justice Court, 2015 WL 4293229 (Utah App. July 16, 2015) the defendant failed to appear and the justice court sent notice to the surety.  The surety did not produce the defendant within the six months following notice, and the court granted the City’s motion to collect on the bond.  The surety appealed and argued that the justice court was required to have given notice to the surety on two prior occasions when the defendant failed to appear personally but was represented by counsel.  The Court noted, “1st Out Bail Bonds has identified no authority supporting its argument that an appearance through counsel is nevertheless a nonappearance by a defendant.”  The Court affirmed the district court’s denial of the surety’s petition for relief from the justice court’s order forfeiting the bond.

In People v. American Contractors Indemnity Co., 2015 WL 4454770 (Cal.App. July 21, 2015) the defendant failed to appear on May 17, 2013, and the clerk filed a notice of forfeiture of the bond.  The notice was mailed to the surety with a postmark on the envelope of May 29, and it was received by the surety on May 31.  The court entered summary judgment against the surety on November 18 (the 185th day after the defendant failed to appear and the notice was filed).  On December 19 the surety filed its motion to set aside the judgment and exonerate the bond.  The trial court denied the surety’s motion, and the surety appealed.  The Court addressed three issues.

First, the surety argued that under Code of Civ. Proc. §1013a the actual postmark date of May 29 should be deemed the date the notice was mailed and, therefore, the summary judgment was premature and voidable.  The Court found that the procedural requirements of §1013a were not followed and the date of the notice would be treated as the operative date, however, the summary judgment was still premature because it was entered on the 185th day after the notice and thus was one day too early.

Second, the People argued that the surety’s motion to set aside the summary judgment was not timely because it was filed more than 15 days after mailing of the notice of entry of judgment.  The Court held that the surety’s motion to set aside had to be filed before the summary judgment became final, which date was 60 days after mailing of the notice of entry. Since the surety’s motion was filed within that period, it was timely and the trial court erred in denying the motion as untimely filed.

Third, the Court held that the trial court was without authority to enter a new summary judgment.  The Court stated, “The correct first day on which summary judgment could have been entered was November 19, 2013.  The court had jurisdiction to enter summary judgment for 90 days from that date.  (Pen. Code, §1306, subd. (c).) February 17, 2014, was a court holiday (President’s Day), so the last day on which the trial court could enter summary judgment was February 18, 2014.  The trial court is now without authority to enter summary judgment and deem the bond forfeited.  Accordingly, the bail is exonerated.”

The Court certified its opinion for publication “with the exception of parts I and III of the discussion.”