Posted 7/15/2016

In People v. Indiana Lumbermen’s Mutual Insurance Co., 2016 Cal. App. Unpub. LEXIS 4898 (Cal. App. June 30, 2016), the surety appealed the trial court’s order denying the surety’s motion to vacate summary judgment on a bail bond forfeiture.  The surety had issued a bond to secure the defendant’s release.  The defendant failed to appear for her preliminary hearing.  After the order of bond forfeiture and expiration of the initial 185 day appearance period, the surety filed a motion to extend the appearance period for an additional 180 days, which was granted.  At the expiration of the extended time, the surety filed a motion for an additional 180 day period, which also was granted.  The government filed a motion to set aside the second extension, as Penal Code section 1305.4 provides for only one 180 day extension.  On September 11, 2014, which was slightly more than 90 days after the expiration of the first 180 day extension, the court set aside the order granting the second extension and entered summary judgment on the bond.  The surety filed a motion to vacate the summary judgment, which was denied.  On appeal, the surety argued that summary judgment was not timely, as it was not entered within 90 days of the expiration of the appearance period (required under section 1306(c)).  The court held that the surety was estopped from setting aside the judgment, even though it was entered more than 90 days after the expiration of the appearance period, because the surety caused the delay by seeking and obtaining the unauthorized extension.  The court rejected the argument that estoppel does not apply because the surety did not receive any benefit from the extension.  Further, the court was not persuaded that the court improperly granted the order vacating the extension order.  The court affirmed the trial court’s denial of the motion to vacate the summary judgment. [Not published]

In Davis v. Loving, 2016 Tex. App. LEXIS 6941 (Tex. App. June 30, 2016), the father of the defendant signed a promissory note in favor of a bail agent to satisfy his son’s bail forfeiture.  The father then sold property and paid the bail agent the full penal sum of the bond, $100,000.  The father sued the bail agent to recover the $100,000, alleging a number of claims, including fraud.  Suit was filed just before the expiration of the statute of limitations expired, but the father was not able to serve the bail agent for 2 ½ years.  The trial court granted the bail agent summary judgment on the grounds that the service was made after the limitations period expired.  The Court of Appeals reversed.  It held that the bail agent’s motion for summary judgment failed to address whether the discovery rule would toll the limitations period as a matter of law. The matter was remanded for further proceedings. 

In Badolato v. Dobrek, 2016 N.J. Super. Unpub. LEXIS 1527 (N.J. Super June 30, 2016), a bail agent and her husband appealed a final decision by the Department of Banking and Insurance (“DOBI”) to revoke the bail agent’s license and assess sanctions and penalties for engaging in insurance fraud.  The bail agent and husband were separated, but not divorced.  However, the bail agent indicated on her auto insurance application that she was single.  In addition, after the husband was involved in an auto accident driving the bail agent’s car, he and the bail agent advised the insurance carrier that the bail agent was driving the car.  DOBI found that the couple committed insurance fraud and revoked the bail agent’s license.  On appeal, the bail agent and husband argued that there was an issue of fact as to whether the couple acted intentionally, and therefore, a hearing should have been required.  The Superior Court disagreed.  It held that a hearing is required for a summary decision only when the opponent presents facts that create a dispute.  In this case, the couple did not establish a question as to their intent to deceive.  Moreover, the court held that even if the couple did present such evidence, intent to deceive is not a material fact, as proof of fraud under the Insurance Fraud Protection Act does not require intent.

In People v. Financial Casualty & Surety, Inc., Case Nos. D067973 and D067982 (Cal.App. June 29, 2016), the surety appealed the trial court’s denial of its motion to vacate a bail forfeiture and set aside summary judgment.  The surety had secured the defendant’s release with a $25,000 bond.  The defendant did not appear at a readiness hearing in one case and a probation revocation hearing in a second case.  After the expiration of the appearance period, the trial court entered summary judgment on the forfeited bond.  In its motion to set aside the summary judgment, the surety argued that the defendant was not “lawfully required” to appear as set forth in Penal Code section 1305(a).  The Court of Appeal held that, under People v. Safety National, section 977’s requirement of personal presence at “all other proceedings” gives rise to a “lawfully required” appearance under section 1305(a).  The Court of Appeal affirmed the denial of the motion to set aside the summary judgment on the bond forfeiture.  [Not published]

In Justin v. Second Judicial District Court, Case No. 67786, 132 Nev. Adv. Opn. 47 (Nev. June 30, 2016), the Nevada Supreme Court held that NRS 178.509 does not provide for an automatic exoneration when the defendant is remanded to custody.  In this case, the surety (Surety 1) issued a bond to secure the defendant’s release. Subsequently, the defendant appeared for his arraignment on January 30, 2014, and the court ordered that the defendant be drug tested.  The defendant failed the drug test and the court added supervision to the conditions of his bail.  The arraignment was postponed to a later date (March 18, 2014).  On the next day (January 31), the defendant was remanded into custody for a pretrial supervision violation.  A second surety (Surety 2) issued a bond to secure the defendant’s release.  After the defendant failed to appear at his rescheduled arraignment, the court issued notices of intent to forfeit both bonds.  The defendant surrendered himself to Surety 2 and Surety 2 turned the defendant in to the authorities, Arraignment was rescheduled again to June 10, 2014.  Surety 2’s bond was exonerated.  To secure the defendant’s release, Surety 1 issued another bond, which the court also ordered forfeited after the defendant failed to appear at the arraignment again.  (The defendant later surrendered, and the second bond issued by Surety 1 was exonerated.  The defendant subsequently entered a guilty plea.)  Surety 1 filed a motion to exonerate the first bond it issued.  It argued that the bond should have been exonerated when the court remanded him into custody for a pretrial supervision violation.  The court denied the motion, finding that Surety 1 did not attempt to exonerate the first bond while the defendant was in custody, and that the defendant failed to appear for his arraignment.  On a motion for consideration and a subsequent motion to declare the bond forfeiture judgment unenforceable, the surety argued that the first bond should be exonerated by operation of law under NRS 178.509 because the defendant was remanded into custody on January 31, the defendant surrendered on the bond issued by Surety 2, the defendant surrendered on the second bond issued by Surety 1 and the defendant entered a guilty plea, all events occurring within 180 days of the court’s intent for forfeit the bond.  The trial court denied the motions and Surety 1 challenged the trial court’s order through a petition for writ of mandamus.  The Supreme Court denied writ relief.  The terms of the bond secured the defendant’s appearance, and the defendant failed to appear.  Further, it held that exoneration does not occur through operation of law under NRS 178.509.  On the contrary, the law provides the court authority to exonerate the bond only under limited circumstances.  The Supreme Court found that none of those circumstances existed to permit the trial court to exercise its exoneration authority. 

In Ham v. McFaddon, 2016 U.S. Dist. LEXIS 87448, (D.S.C. June 14, 2016), two bail agents were arrested for assault and battery for conduct in connection with the agents taking a defendant into custody.  The case against the bail agents was dismissed.  The agents then asserted federal civil rights claims and state law claims for conspiracy and intentional infliction of emotional distress against the Florence County Sheriff’s Department arising from the arrest.  The magistrate judge found that the arrest was made on a facially valid warrant that was premised on a finding of probable cause to arrest the agents.  The magistrate judge recommended that the court grant the defendants summary judgment, thereby dismissing the civil rights complaint (42 USC 1983) and claims for unlawful seizure, false arrest and false imprisonment.  The magistrate judge also recommended that to the extent the court finds a constitutional violation, the sheriff defendant has immunity.  With the dismissal of the section 1983 claims, the magistrate judge recommended that court should decline to exercise supplemental jurisdiction with respect to the state law claims.

In Brooks v. Clark County, 2016 U.S. App. LEXIS 12510 (9th Cir. July 7, 2016), bail enforcement agents attempted to take two defendants into custody who, at the time, were appearing in court.  The judge prohibited the agents from taking custody of the defendants and a dispute ensued.  Ultimately, the judge ordered the court marshal to remove the agents from the courtroom.  Based on this encounter, the agents sued the marshal alleging that the marshal used excessive force, in violation of the Fourth Amendment, when he removed the agents from the courtroom.  The trial court denied the marshal’s motion to dismiss the claim on the theory that the marshal was entitled to absolute, quasi-judicial immunity or qualified immunity.   The Court of Appeals affirmed the denial of the motion to dismiss on absolute immunity grounds.  The Court held that such broad immunity was for officials performing a judicial or quasi-judicial functions and the marshal was not performing such a function.  In assessing whether qualified immunity applied, the Court determined whether it was “beyond debate” whether the marshal’s use of force in removing the agents violated the Fourth Amendment.  The Court found that the allegations of the marshal’s conduct were not sufficient to show that the conduct was “indisputably unconstitutional.”  Therefore it held that the marshal was entitled to qualified immunity, and it reversed the trial court’s denial of the motion to dismiss on qualified immunity grounds. 

In People v. North River Insurance Company, 2016 Cal. App. Unpub. LEXIS 5054 (Cal. App. July 7, 2016), the surety posted a $50,000 bond to secure the defendant’s release.  At the defendant’s first appearance, the trial court added a condition to the bond so that the defendant was prohibited from possessing dangerous weapons or any controlled substances.  The defendant subsequently failed to appear at a pretrial conference and the court held that the bond was forfeited.  After the expiration of the appearance period, the court entered summary judgment against the surety.  The surety did not appeal the summary judgment, but rather filed a motion to set aside the summary judgement as void.  The surety argued that the court improperly imposed conditions on the bond after the bond was posted, thereby increasing the risk to the surety and nullifying the bond.  Therefore, the court lacked jurisdiction to enter a forfeiture against the bond.  The trial court denied the motion to set aside the judgment.  The Court of Appeal held that contrary to the facts in the cases asserted by the surety, the court’s conditions in this case did not increase the risk that the defendant would fail to appear.  The Court of Appeal found that the conditions “had no apparent effect on the defendant’s lack of appearance.”  The Court affirmed the denial of the motion to set aside the summary judgement.  [Not published]

In People v. Indiana Lumbermens Mutual Insurance Company, 2016 Cal. App. Unpub. LEXIS 5090 (Cal. App. July 8, 2016), the Court of Appeal affirmed a trial court order denying the surety’s motion to set aside summary judgment of bond forfeiture.  The surety had posted a bail bond to secure the defendant’s release.  The defendant failed to appear at a hearing and the court clerk served an order of forfeiture on the surety.  Three days before the appearance period was set to expire, the surety moved for an extension of the appearance period.  The case was transferred to a different judge (Judge Doyle), who heard the motion.  During the hearing on the motion, the surety did not counter the government’s implication that the motion to extend was untimely.  However, the record did not explicitly indicate that Judge Doyle had held that the motion to extend was not timely filed.  The surety stated that it would submit to the court’s ruling and the court denied the motion to extend.  Subsequently, summary judgment was entered against the surety.  The surety then filed a motion to set aside the summary judgment.  It argued that Judge Doyle mistakenly ruled that the motion to extend was not timely filed and did not consider the merits of the motion.  Therefore, if the denial of the motion to extend was based on error (i.e. the motion to extend was untimely), the summary judgment was void.  The court concluded that Judge Doyle made no ruling that the extension motion was untimely.  The surety simply “submitted on the ruling of the court.”  It denied the motion to set aside the summary judgment.  The Court of Appeal found that the court’s conclusion in reviewing Judge Doyle’s ruling was reasonable and no abuse of discretion occurred. [Not published]

In Viele v. Peters, 2016 U.S. Dist. LEXIS 90053 (E.D. Ark. July 12, 2016), the Arkansas Professional Bail Bondsman Licensing Board (“Board”) suspended the license of a bail agent and seized money from a security deposit that she maintained at a bank.  The agent sued the Board for injunctive relief.  Apparently subsequent to the filing of the suit, the agent’s license was reinstated pursuant to a consent order.  The agent’s license was suspended again after the filing of the lawsuit.  The court held that the agent’s claim for injunctive relief (i.e. reinstatement of the license) was moot because the agent’s license was reinstated pursuant to the consent order.  As to the second suspension, the court found the second suspension was not related to any of the issues in the lawsuit and alleged in the complaint.  Therefore, the court held that it may not consider claims that are not based on events alleged in the complaint.  The court granted summary judgment for the Board with respect to claims for injunctive relief as to reinstatement.  With respect to the claim for reimbursement of the seized funds, the court granted summary judgment for the Board.  It held that the agent was seeking retroactive relief, which amount to an award of a money judgement. In such a case, the Eleventh Amendment deprives a federal court of jurisdiction to award a money judgment against a state.  The court declined to exercise supplemental jurisdiction over the remaining state law claims.  The court dismissed the claims for injunctive relief against the Board with prejudice.  The state law claims were dismissed without prejudice.

In People v. North River Insurance Company, 2016 Cal. App. Unpub. LEXIS 5183 (Cal. App. July 13, 2016), the surety furnished a bond to secure the defendant’s release.  The defendant failed to appear and the court declared the bond forfeited.  The Stanislaus County District Attorney’s Office learned that the defendant was incarcerated at the Oregon State Penitentiary (“OSP”).  The District Attorney began the process of transferring the defendant back to Stanislaus County and the court ordered the sheriff to obtain custody of the defendant at OSP and transport him to the Stanislaus County jail.  This process was delayed, as Oregon advised it would not honor the court’s order.  Rather, under interstate compacts, OSP was responsible for initiating the defendant’s return.  As the OSP-initiated process was under way, the surety filed a motion to toll the bond forfeiture under section 1305(e).  The surety also claimed that documents showed that the District Attorney elected not to extradite and the bond should be exonerated pursuant to section 1305(f).  At the hearing on the motion, the court tolled the appearance period.  The trial court found that there was only a temporary disability in obtaining custody of the defendant and declined to exonerate the bond.  The defendant eventually was brought into custody.  The government emailed the surety with a “pre-notice” of the estimated costs to return the defendant.  The government moved to assess costs incurred in obtaining the defendant against the surety.  At the hearing, the court ordered the bond exonerated subject to paying costs.  The surety appealed the order of forfeiture, the denial of its motion for exoneration and the court’s award of costs. 

With respect to the order of forfeiture, the surety argued that the defendant was not “lawfully required” to appear as set forth in Penal Code section 1305(a).  The Court of Appeal held that, under People v. Safety National, section 977’s requirement of personal presence at “all other proceedings” gives rise to a “lawfully required” appearance under section 1305(a).  The Court of Appeal held that the defendant’s nonappearance provided an adequate basis for the order of forfeiture.  With respect to the refusal to grant the surety’s request for exoneration, the Court of Appeal held that the evidence indicated that the disability was temporary, as the District Attorney was in the process of transporting the defendant back to Stanislaus County.  Therefore, the government took no action which rendered the surety’s obligation impossible.  The appropriate remedy was tolling the appearance period.  With respect to the award of costs, the surety argued that under section 1305, when the defendant is in custody after surrender or arrest, the court must on its own motion exonerate the bond.  In this case, the surety stated that the court did not exonerate the bond on its own motion, but rather in response to the government’s motion for costs.  The Court disagreed with the surety’s characterization.  It held that the government’s motion for costs was brought in anticipation of the court’s own motion to exonerate the bond, and the government had a procedural basis for requesting costs under section 1306(b).  The surety also asserted due process arguments because it had late notice of the motion for costs and was not present at the hearing.  The Court noted that the surety did object to the issue of late notice or the amount of costs by seeking a reconsideration of the trial court’s decision.  Further the surety had actual notice that the District Attorney intended to request costs. The Court affirmed the orders of the trial court.  [Not published]

In State v. Jones, Case No. 2015-KA-1232 (La. App. Fourth Circuit July 13, 2016), the surety appealed a trial court’s denial of its motion to set aside the judgment of a bond forfeiture.  The surety had furnished a bond securing the defendant’s release.  The defendant failed to appear for his arraignment.  The court executed a judgment of bond forfeiture and issued an alias capias with no bond.  Subsequently the Orleans Parish Sheriff’s Office arrested him (within the 180 day period provided to set aside a forfeiture) and erroneously released him the same day.  The surety moved to set aside the bond forfeiture and the trial court denied the motion.  The surety argued that because the defendant was in custody by the “officer originally charged with his detention” the surety must be relieved of its obligations under the bond pursuant to La. C. Cr. P. art. 345.  The State claimed that the language of the statute required continued incarceration in order for the surety to be exonerated.  The Court of Appeals held that the statute only requires that the defendant be incarcerated “at any time” either prior to forfeiture or within the time allowed by law to set aside a forfeiture.  Further the Court held that the statute does not contemplate when a sheriff fails to perform his duties.  The Court found that it was error for the sheriff to release the defendant when the court issued an alias capias without bond.  Thus, the state did not satisfy the requirements of La. R.S. 15:85 and cannot enforce its rights to a bond forfeiture when the released defendant fails to appear.  Further, under La. R.S. 15:83(C)(1), a surety is not liable for the failure to perform when it is caused by a fortuitous event that makes performance impossible.  The Court held that the erroneous release and the sheriff’s failure to perform his mandated duties were not reasonably foreseeable and constituted a fortuitous event that relieved the surety of its obligations.  The Court reversed the trial court’s ruling and set aside the forfeiture.