Cnty. of L.A. v. Fin. Cas. & Sur., Inc.

• Decision Date: 25 May 2016
• Docket Number: B260373
• Citation: 247 Cal.App.4th 875,202 Cal.Rptr.3d 380
• Parties: COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

247 Cal.App.4th 875

202 Cal.Rptr.3d 380

COUNTY OF LOS ANGELES, Plaintiff and Respondent

v.FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

B260373

Court of Appeal, Second District, Division 2, California.

Filed May 25, 2016

John M. Rorabaugh, Fresno, for Defendant and Appellant.

Office of the County Counsel, Mary C. Wickham, Interim County Counsel, Ruben Baeza, Jr., Assistant County Counsel and Kevin Engelien, Associate County Counsel, for Plaintiff and Respondent.

ASHMANN–GERST

, Acting P.J.

The issue in this case is whether the trial court lost jurisdiction over a bail bond pursuant to the terms of Penal Code section 1305, subdivision (b)¹

when a bail forfeiture was declared in open court and set aside on the same day, and when the court clerk failed to mail notice of the forfeiture to the surety and bond agent. There is no cognizable exception, so the answer is yes. As a result, we conclude that the trial court erred when it denied the motion by Financial Casualty & Surety, Inc. (Financial Casualty) to vacate forfeiture and exonerate bond, and also when the trial court entered summary judgment in favor of the County of Los Angeles (County). The judgment is reversed and remanded with instructions for the trial court to set aside summary judgment, vacate the forfeiture and exonerate Financial Casualty's bond.

FACTS

Damon Christoph Sandoval (Sandoval) was charged with unlawful possession of a controlled substance for sale (Health & Saf. Code, § 11352, subd. (a)

), and unlawful transport, import, sale, administration or gift of a controlled substance (Health & Saf. Code, § 11351 ).

Bail was set at $100,000.

On August 23, 2011, Financial Casualty posted bond number FCS250–824686 for Sandoval's release from custody.

The information filed on December 13, 2011, added a third count for unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)), and a fourth count for unlawful possession of a controlled substance while armed (Health & Saf. Code, § 11370.1, subd. (a)

).

Sandoval pleaded not guilty to each count.

On May 9, 2012, Sandoval withdrew his not guilty pleas, and pleaded no contest. He was convicted on all four counts. After admitting various special allegations, he pleaded open to the trial court. He was ordered to appear at a probation and sentencing hearing on August 9, 2012 at 8:30 a.m.

On the morning of August 9, 2012, Sandoval was not present in court. At 10:05 a.m., the trial court ordered the bond forfeited and issued a bench warrant. Bail was set at “no bail.” In the afternoon, Sandoval appeared and stated that he missed the morning hearing due to a doctor's appointment. The trial court said it was inclined to reinstate the bond and continued the matter to August 13, 2012. It then told Sandoval, “Have a seat. I'm going to make sure the bond agent is notified. Assuming notice is given, I'm going to reinstate your bond under [§ 1305, subd. (c)(4)

].” After a break, the trial court stated, “Back on Mr. Sandoval's case. The bond agent has been notified pursuant to [§ 1305, subd. (c)(4) ]. The bail forfeiture is set aside and the bond is reinstated.” Sandoval was told to return to court on August 13, 2012.

The minute order from August 9, 2012, stated: “Bail forfeiture is set aside. [¶] Bond agent is notified via telephone of the court's intention to reinstate the bond pursuant to [§ 1305, subd. (c)(4)

]. [¶] Matter is continued to [August 13, 2012] at 8:30 a.m.”

At the next hearing, the trial court continued Sandoval's surrender date due to health reasons. Eventually, Sandoval had heart surgery.

He did not appear on January 15, 2013. The bond was ordered forfeited, and notice of forfeiture was mailed to Financial Casualty and the bond agent.

On July 18, 2014, Financial Casualty filed a motion to vacate forfeiture and exonerate bond on the theory that the trial court lost jurisdiction over the bond when it failed to mail notice of the August 9, 2012, forfeiture. Months later, the trial court denied the motion. It then entered summary judgment against Financial Casualty on the forfeited bond.

This timely appeal followed.

DISCUSSION

The parties dispute whether the statutory scheme regarding bail bonds deprived the trial court of jurisdiction over the bond if it failed to provide Financial Casualty with written notice of the forfeiture declared on the morning of August 9, 2012. This raises a question of statutory interpretation subject to independent review. (State ex rel. Bartlett v. Miller (2016) 243 Cal.App.4th 1398, 1408, 197 Cal.Rptr.3d 673

.)

To resolve the issue presented, we must trace the history of the pivotal statute, section 1305

, and then determine the meaning of its current incarnation.

In 1969, former section 1305

provided, in part, that if a defendant out on bail failed to appear when required, “the court must direct the fact to be entered upon its minutes and the undertaking of bail ... must thereupon be declared forfeited[.]” If the forfeiture exceeded $50, the clerk of the court was required to mail notice to the surety and bond agent. If the clerk failed to mail the required notices within 30 days, the surety was released from its obligation on the bond. (Former § 1305

, amended Stats. 1969, ch. 1259, § 6, pp. 2462–2463.) For our purposes, the substance of the former statute remained unchanged despite various amendments.

It is in the context of this former version of section 1305

that County of Los Angeles v. Resolute Ins. Co. (1972) 22 Cal.App.3d 961, 99 Cal.Rptr. 743 was decided. There, the court held that the surety was released from its obligations under a bond because the court clerk mailed notice of forfeiture to a bond agent but not the surety. It noted that section 1305 required notice to both. (County of Los Angeles v. Resolute Ins. Co., supra, at pp. 962–964, 99 Cal.Rptr. 743.)

In People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216, 119 Cal.Rptr. 917

(Wilshire ), the defendant failed to appear at arraignment, which resulted in a bond forfeiture and a bench warrant. The next day, the defendant appeared and gave a satisfactory answer for his absence the day before. Consequently, forfeiture was set aside and the bond reinstated. The surety was not given notice of any of these proceedings. On appeal, the court observed that section 1305

required the clerk to mail notice within 30 days after entry of the forfeiture. Because statutory notice was not provided, the surety was released from its obligation. (Wilshire,

supra, at p. 220, 119 Cal.Rptr. 917.)

Half a decade later, the court in People v. Amwest Surety Insurance Co. (1980) 105 Cal.App.3d 51, 164 Cal.Rptr. 159

(Amwest ) was confronted with the following scenario. The defendant was late to a hearing, so forfeiture was ordered. He appeared later that day and offered a satisfactory excuse, which caused the trial court to vacate the order forfeiting the bond, and to also order the bond reinstated. Subsequently, when the bond was again ordered forfeited because the defendant did not appear for trial, the surety argued that the trial court lost jurisdiction over the bond because the court clerk did not mail notice of the first forfeiture, as required by section 1305. (Amwest,

supra, at p. 53, 164 Cal.Rptr. 159.)

Amwest

noted that Wilshire, “despite its evident weakness, is basically [o]n point,” but then declined to follow Wilshire. (Amwest,

supra, 105 Cal.App.3d at p. 55, 164 Cal.Rptr. 159, fn. omitted.) The court found in favor of the People, stating: “The notification as to the prior lateness would have served no purpose; the appearance of the defendant one-half hour after the time appointed was excused, and it was unnecessary either for the bench warrant to be actually issued or served, or for the surety to undertake to determine what had caused the failure to appear and take appropriate action to bring the defendant into court.” (Amwest,

supra, 105 Cal.App.3d at p. 56, 164 Cal.Rptr. 159.)

A few years later, along came People v. Surety Ins. Co. (1983) 148 Cal.App.3d 351, 354–355, 195 Cal.Rptr. 876

(Surety Insurance ), which concluded that Wilshire and Amwest were both correctly decided “if in each case ordinary courtroom clerical practice was followed.” (Surety Insurance,

supra, at p. 356, 195 Cal.Rptr. 876.)

The Surety Insurance

court presumed that in Wilshire, the order of forfeiture had been entered into the permanent minutes before the defendant appeared the following day. Thus, the clerk was required to mail statutory notices. But in Amwest, as in Surety Insurance, the defendant appeared the same day as the forfeiture and, “[p]resumptively[,] the clerk had not yet entered in the minutes the order declaring the bond forfeited. [Citation.]” (Surety Insurance,

supra, 148 Cal.App.3d at p. 356, 195 Cal.Rptr. 876.) This led the court to state: “It has long been held that oral orders made in court are subject to the plenary power of the court until ‘entered.’ [Citations.] Unless the clerk prepares the ‘permanent minutes' in court when the oral orders are announced, the judge is free to make new and different orders so long as it is done before the court clerk or a minute clerk prepares the permanent minutes. The official ‘entry’ is in the permanent minutes, not the rough minutes. [Citation.]” (Id. at p. 357, 195 Cal.Rptr. 876.)

In summary, the court stated: “If the oral bail forfeiture order is noted by the clerk but not yet entered in the permanent minutes, the court has discretion to excuse a defendant's late appearance and reinstate bail as if it had never been forfeited, without any notice to the surety. [¶] If the defendant's appearance follows the entry in the permanent minutes of the order forfeiting bail, the court has jurisdiction to reconsider the order and reinstate bail on the same bond without notifying the surety of the court's intention or awaiting the appearance of the surety before doing so, but only if the clerk complies with the jurisdictional formality of mailing the notices of the original forfeiture within...