Posted 6/1/2016

In People v. Financial Casualty and Surety, Inc., Case No. E062743 (Cal.App. May 11, 2016), the surety appealed the trial court’s order denying the motion to set aside bail forfeiture and subsequent summary judgment.  The defendant, for whom the surety posted a $150,000 bond, was present during an October 30, 2013, trial readiness conference (TRC), which was continued to December 10, 2013.  The court asked the defendant whether he was agreeable to continuing the TRC to December 10, 2013, and the defendant responded affirmatively.  The defendant failed to appear at the December 10, 2013, TRC.  The bond was forfeited.  In its motion to set aside the forfeiture, the surety argued that the defendant’s presence was not “lawfully required” at the December 10, 2013, TRC because it was not a statutory TRC.  That is, the TRC was not set within 14 days before the trial date, as required by statute.  The trial court denied the motion and the Court of Appeal affirmed.  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 appearance is “lawfully required” under section 1305. [Not Published]

In People v. Financial Casualty and Surety, Inc., Case No. E062744 (Cal.App. May 11, 2016), the surety appealed the trial court’s order denying the motion to set aside bail forfeiture and subsequent summary judgment.  The defendant, for whom the surety posted a $35,000 bond, was present during an October 30, 2013, felony settlement conference (FSC), which was continued to December 10, 2013.  The court asked the defendant whether he was agreeable to continuing the FSC to December 10, 2013, and the defendant responded affirmatively.  The defendant failed to appear at the December 10, 2013, FSC.  The bond was forfeited.  In its motion to set aside the forfeiture, the surety argued that the defendant’s presence was not “lawfully required” at the December 10, 2013, FSC because he was required to appear only at the fundamental hearings listed in Penal Code section 977.  The trial court denied the motion and the Court of Appeal affirmed.  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 appearance is “lawfully required” under section 1305. [Not Published]

In State v. Clarkson, 2016 Haw.App.LEXIS 176 (Haw.App. May 10, 2016), the surety appealed a trial court’s denial of the surety’s motion to set aside a forfeiture.  The defendant had failed to appear on July 12, 2012, and the court issued an order of forfeiture on July 17, 2012.  The defendant was returned to custody on October 12, 2012.  The surety filed its motion to set aside the forfeiture on February 25, 2013.  The Court of Appeal affirmed the denial of the motion.  The surety did not file its motion to set aside the forfeiture within the required period of 30 days after receiving the notice of forfeiture.  The Court rejected the surety’s argument that the Department of Prosecuting Authority was not authorized to represent the state in a bail forfeiture hearing.  The Court also rejected the surety’s argument that there was good cause to vacate the forfeiture (because the defendant was returned to custody).  The Court noted that HRS 804-51 requires the surety to file the motion to set aside within 30 days after receiving notice of the forfeiture, and the surety failed to do so.

In Capitol Bail Bonds, LLC v. Fitzgerald, 2016 WL 2935721 (Conn.Super. May 4, 2016), the court issued a temporary restraining order enjoining an indemnitor and cosigner on a bail agreement from transferring, conveying, assigning or selling any of her personal assets (with the exception of spending for personal necessities).  After forfeiture of a bail bond, the bail agent advised the cosigner that she would be liable for the full amount of the bonds.  The cosigner advised that the agent would never be able to find her money.  The bail agent sought and was granted the TRO. 

In State v. Mizoguchi, 2016 Haw.App.LEXIS 200 (Haw.App. May 20, 2016), the surety appealed a trial court’s denial of the surety’s motion to set aside a forfeiture.  The defendant had failed to appear on September 10, 2013, and the court issued an order of forfeiture on September 18, 2013.  The surety filed its motion to set aside the forfeiture on October 11, 2013, which the trial court denied.  The Court of Appeals rejected the surety’s argument that the Department of Prosecuting Authority was not authorized to represent the state in a bail forfeiture hearing.  The surety also relied on Hawaii Rules of Civil Procedure Rule 60(b)(1) and (4) (relief from judgment because of mistake or the judgment is void).   The court held that the HRCP does not apply to the forfeiture of bonds and the exclusive remedy is available under Hawaii Revised Statutes 804-51. 

In County of Los Angeles v. Financial Casualty & Surety, 2016 Cal.App. LEXIS 418 (Cal. App. May 25, 2016), the surety furnished a $100,000 bond to secure the defendant’s release.  After a plea of no contest, the defendant was ordered to appear at a probation and sentencing hearing on August 9, 2013.  The defendant failed to appear and the trial court ordered the bond forfeited.  The defendant appeared in court later in the afternoon on the same day and stated that he missed the hearing due to a doctor’s appointment.  The trial court stated that it was inclined to reinstate the bond.  The minute order from the hearing stated, “Bail forfeiture is set aside.”  No notice of forfeiture was mailed to the surety and agent.  About five months later, the defendant failed to appear at a hearing and the court ordered the bond forfeited.  The court clerk mailed the notice of forfeiture to the surety and agent.  The surety moved to vacate the forfeiture on the ground that the trial court lost jurisdiction over the bond when it failed to mail notice of the August 9 forfeiture.  The trial court denied the motion and subsequently entered summary judgment against the surety.  The Court of Appeal reviewed the relevant case law and the history of Penal Code section 1305.  It stated, “The triggering event for the notice requirement is a trial court’s declaration of forfeiture in open court.  Consequently, once a forfeiture is declared in open court, the clerk must send notice . . . or the trial court loses jurisdiction over the bond.  It is no longer true that the entry of forfeiture in the minutes is the event that obligates the clerk to send notice [as held in prior case law].”  The Court of Appeal reversed and remanded the case to the trial court to vacate the forfeiture. 

In Brewster v. Powell Bail Bonding, 2016 NCBC LEXIS 43 (N.C. Super. May 24, 2016), a minority shareholder of a bail bond agency and a former employee sought a preliminary injunction to reinstate his employment with the agency and his right to participate in the operations of the agency.  The minority shareholder had expressed his dissatisfaction with his co-owners about his lack of involvement with the financial matters of the agency.  The minority shareholder stated that he wanted to “step down” and requested that the co-owners buy his share of the agency, but that he remain on the payroll.  In response, the co-owners placed him on paid leave as they considered a plan to buy him out.  The co-owners developed a minority shareholder buy-sell agreement, which the minority shareholder found to be unsatisfactory.  The minority shareholder sued the other owners and sought a judicial dissolution of the agency to protect his interests.  In response to the motion for a preliminary injunction, the court was skeptical that the minority shareholder had shown a likelihood of success regarding his claim for judicial dissolution.  He had not shown how his expectations as an owner had been frustrated.  Further, the minority shareholder had not shown that he would suffer irreparable harm.  Although, he remained personally liable to the surety company on bond forfeitures, the agency had purchased insurance that protected him.  In addition, the agency’s recovery operations appear to be strong, so that personal liability for a bond forfeiture was not imminent.  Lastly, the minority shareholder was not able to prove that he has not been able to find work elsewhere.  The court denied the motion for preliminary injunction. 

In Re Jenkins Bonding Company, Case No. M2015-00868-CCA-R3-CD (Tenn.Crim.App. May 27, 2016) involved an appeal of the trial court’s judgment of final forfeiture.  The surety issued a bond to secure the defendant’s release.  On the same day that the defendant was released, the trial court granted the State’s motion to dismiss the charges.  About four weeks later, a subsequent indictment was issued against the defendant.  The defendant failed to appear at a hearing in connection with that indictment, and the entered a conditional judgment of forfeiture.  The surety moved to have the conditional judgment set aside.  The trial court denied this motion and issued a final judgment of forfeiture.  On appeal, the surety argued that upon the dismissal of the first indictment, its obligation to secure the defendant’s appearance was discharged.  The State argued that the second indictment simply was a superseding indictment and the surety was not released.  The Court of Criminal Appeals noted section 40-11-138(b) of the Tennessee Code, which stated that a bail bondsman shall be released “upon the disposition of the charge against the surety’s principal.”  The first indictment was dismissed.  The Court held that the trial court incorrectly concluded that the first indictment was pending when the second indictment was issued.  The Court held that the second indictment was not a superseding indictment and the surety’s obligations regarding the first indictment were discharged.  The Court reversed the judgment of the trial court.

In State v. Dorsey, Case No. L-15-1289 (Ohio App. May 27, 2016), the surety secured the defendant’s release by posting a $45,000 surety bond.  The defendant failed to appear at his sentencing hearing, and was arrested subsequently in Wisconsin on unrelated charges.  The trial court ordered the bond forfeited.  After unsuccessfully filing motions to vacate the forfeiture and stay the execution of the forfeiture judgment, the surety filed a motion for bond remission, which the trial court denied.  The surety argued that the defendant’s arrest in Wisconsin made it impossible to produce the defendant, and under R.C. 2937.36(C), the court should set aside the forfeiture for good cause.  The Court of Appeals rejected this argument, noting that section 2937.37 applied to the propriety of a bond forfeiture, which already has been determined.  The Court of Appeals also concluded that the trial court considered the factors in a request for remission (the circumstances of the defendant’s reappearance, the reason for the failure to appear, prejudice to the prosecution, whether the surety took part in the capture, mitigating circumstances and the interest of justice).  The Court of Appeals affirmed the denial of the motion for bond remission finding that the trial court did not abuse its discretion.