Posted 5/11/2016

In People v. United States Fire Insurance Co., Case No. E063514 (Cal.App. April 21, 2016), the surety appealed a trial court’s denial of a motion to set aside a summary judgment on a bail bond.  In this case, after the defendant’s failure to appear, the deputy clerk of the court mailed a notice of forfeiture to the surety and the bail agent.  The bail agent claimed that he never received the notice, and had he did, he would have taken steps to return the defendant to court.  The trial court noted the rebuttable presumptions in Evidence Code that a document mailed is received (section 641) and that a government official (such as a court clerk) performs his or her duties (section 664).  The trial court held that the surety did not overcome these presumptions and denied the motion to set aside the summary judgment.  On appeal, the surety argued that the trial court completely disregarded the bail agent’s testimony that he did not receive the notice.  The Court of Appeal stated that Penal Code section 1305 requires mailing as a condition to forfeiture.  It does not establish actual receipt as a condition.  In addition, the Evidence Code section 664 shifts the burden of proof to the surety to prove the nonexistence of a fact (i.e. show that the clerk did not mail the notice).  The Court of Appeal held that, based on a review of the trial court record, the trial court properly applied the rebuttable presumptions in the Evidence Code and properly weighed the conflicting evidence regarding whether the clerk mailed the notice.  The trial court reasonably concluded that the bail agent’s testimony was insufficient to prove that the clerk did not mail the notice.  The Court of Appeal also rejected the surety’s argument that “extrinsic mistake” (that the notice was not delivered to the bail agent) should relieve the surety.  This concept applies in cases of default judgments, which does not exist in this case.  The Court of Appeal affirmed the trial court’s denial of the motion to set aside the summary judgement. 

In People v. Bankers Insurance Co., Case No. H039200 (Cal.App. April 22, 2016), the surety appealed the trial court’s order denying the motion to set aside summary judgment regarding the forfeiture of bail.  The defendant, for whom the surety posted a $10,000 bond, was present during a September 14, 2011, hearing and requested the court to postpone arraignment until he met with an immigration attorney.  The defendant waived his right to a preliminary hearing and the trial court continued the case to October 19, 2011 for a pretrial conference.  The defendant was not present at the pretrial conference.  The trial court ordered the bond forfeited and subsequently entered summary judgment on the bond.  The trial court denied the surety’s motion to set aside the summary judgment.  It noted that Penal Code section 1305(a)(4) requires the defendant’s presence on any occasion in which his presence is lawfully required.  Further Rule of the Court 4.112(a)(3) requires the defendant’s presence at a court’s readiness conference.  The trial court held that the October 19 pretrial conference was the functional equivalent of a readiness conference.  The Court of Appeal held that the defendant was lawfully required under the People v. Safety National Casualty, 62 Cal.4th 703 (2016).  In that case, the defendant failed to appear at a pretrial hearing that was scheduled when he was present in court.  The California Supreme Court held that the defendant was “lawfully required” to be present under Penal Code section 977.  In light of the similar facts, the Court of Appeal held that, under Safety National, the defendant’s absence constituted a basis to forfeit bail.  The Court also held that there was insufficient evidence to show that the defendant was in custody prior to the forfeiture of the bond.  The Court of Appeal affirmed the denial of the motion to set aside summary judgment. 

In People v. Accredited Surety and Casualty Co., Case No. G050609 (Cal.App. April 27, 2016), the surety appeal a trial court’s denial of a motion to set aside summary judgement on a bail bond.  A fugitive criminal complaint had been filed against the defendant in Orange County (California) Superior Court for his failure to appear in El Paso County, Colorado to face various gun charges.  The surety secured the defendant’s release with a $50,000 bail bond.  The defendant failed to appear in July 2013, and the court declared the bond forfeited, but later exonerated the bond after the defendant was rearrested.  The court set bail at $50,000 and the surety secured his release in September 2013.  In October 2013, the defendant failed to appear again, and the court declared the bond forfeited.  After the appearance period ended, the court entered summary judgement on the bond.  The surety filed a motion to set aside the forfeiture, asserting that the defendant had in the custody of the United States Marshal on federal gun charges four days after the defendant’s release in September 2013.  The gun charges in El Paso County stemmed from the same arrest and same firearm that supported the federal prosecution.  Therefore, the surety argued it was entitled to be exonerated under California Penal Code 1305(c)(3) (defendant is arrested in the underlying case within the 180-day period.)  The trial court disagreed, holding that although the federal arrest may have stemmed from the same incident, it did not relate to the same charges as the Colorado case.  Further the surety missed the deadline (during the appearance period) to obtain exoneration.  The surety also sought exoneration under the discretion of the court per section 1305.6.  The court held that the surety failed to show “good cause” under section 1305.6 to file a belated motion. 

The Court of Appeal noted that exoneration under 1305.6 requires “good cause”.  Although section 1305.6 requires the defendant’s arrest be in the same case within the county where the case is located, which did not occur, the surety argued that the statute should be interpreted with flexibility because the statute does not address fugitive bond situations.  The Court of Appeal disagreed stating that section 1305 is to be strictly construed.  In addition, the Court of Appeal stated that other parts of section 1305 address a fugitive bond situation, but relief must be sought within the 180 day appearance period.  Finally, the Court of Appeal stated that there is no basis to provide flexibility because the surety failed to show good cause necessary for relief in seeking exoneration after the 180 day period.  The Court also rejected various contract defenses that were not raised with the lower court.  The Court affirmed the trial court’s denial of the motion to set aside summary judgment.  [Not Published]

In People v. Lexington National Insurance Corp., Case No. B251244 (Cal.App. April 27, 2016), the surety appealed the trial court’s denial of a motion to vacate forfeiture of a bail bond.  The defendant, released on bond, appeared at a “preliminary hearing setting” during which the court continued it to September 26, 2012.  The defendant failed to appear at the September 26 hearing.  The court mailed the surety the notice of forfeiture and the surety timely filed a motion to vacate forfeiture and exonerate bail.  The surety argued that the court had not ordered the defendant to appear at the September 26 hearing and therefore was not “lawfully required” to appear, as required under Penal Code section 1305(a)(4).  The Court of Appeal held that pursuant to People v. Safety National Casualty Insurance Co., 62 Cal.4th 703 (2016), section 977 of the Penal Code requires the defendant’s appearance at all proceedings for which the defendant has not waived his appearance, and therefore his or her appearance is “lawfully required” under section 1305.  The Court of Appeal affirmed the denial of the motion to vacate forfeiture.  [Not Published]

In re AAA Bonding Company, LLC, Case No. M2014-02157-CCA-R3-CD (Tenn.Crim.App. May 5, 2016) involved an appeal of a trial court’s decision to suspend a bail agency’s authority to write bail bonds.  Mellissa Harrell, the owner of a bail bond agency was elected clerk of the Rutherford County Circuit Court.  In light of a statute prohibiting a court clerk from being a bail agent, Ms. Harrell sold the agency to her husband.  The agency then filed a petition with the court requesting the change of ownership.  Because the husband did not have the required two-years of experiences as an agent, the petition was amended to reflect a sale to another person, who would own the agency in trust for the benefit of the husband.  The trial court approved the change of ownership.  At the same time, the state moved to suspend the agency’s authority to write bail bonds, noting that the husband is a beneficial owner of the agency, thereby providing an indirect benefit to Ms. Harrell.  The trial court did not find proof that the spouses had intermingled funds to demonstrate an indirect benefit.  Nevertheless, because the husband would prosper if the agency prospers, there is an indirect benefit simply by virtue of the marital relationship.  The Court of Criminal Appeals disagreed.  The court held that a showing of commingled funds is required to establish an indirect benefit.  In the absences of this evidence, the trial court erred in suspending the agency’s authority.  The Court of Criminal Appeals reversed the trial court’s decision. 

In State v. Pollard, 2016 WL 2616063 (Minn.App. May 9, 2016), the surety appealed the trial court’s denial of the surety’s motion to reinstate and discharge the bonds.  The defendant, for whom the surety furnished bonds, failed to appear at an October 2014 hearing.  The court ordered the bonds to be forfeited.  In April 2015, the surety filed a motion for reinstatement and discharge supported by an affidavit from the enforcement agent stating that the defendant had fled to Canada and could only be apprehended if the United States petitioned for her extradition.  The trial court denied the motion.  The Court of Appeals did not find that the trial court abused its discretion in finding that the factors to consider in deciding a motion for reinstatement weighed against the surety.