People v. Am. Sur. Co., A157154

• Court: California Court of Appeals
• Writing for the Court: STEWART, J.
• Citation: 269 Cal.Rptr.3d 390,55 Cal.App.5th 265
• Parties: The PEOPLE, Plaintiff and Respondent, v. AMERICAN SURETY COMPANY, Defendant and Appellant.
• Decision Date: 01 October 2020
• Docket Number: A157154

55 Cal.App.5th 265
269 Cal.Rptr.3d 390

The PEOPLE, Plaintiff and Respondent,
v.
AMERICAN SURETY COMPANY, Defendant and Appellant.

A157154

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

Filed October 1, 2020

Counsel for Appellant: Law Office of John Rorabaugh; John Mark Rorabaugh, Fresno, and Crystal L. Rorabaugh, Santa Ana.

Counsel for Respondent: Donna R. Ziegler, Alameda County Counsel; Scott J. Feudale, Deputy County Counsel

STEWART, J.

55 Cal.App.5th 267

A trial court set bail for a criminal defendant at $220,000. Due to a miscommunication, jail authorities had the figure at $120,000. American Surety Company (American) posted a bond for $120,000. The defendant failed to appear at a scheduled appearance, whereupon the trial court ordered the bond forfeited. Invoking venerable authority that a bail bond in an amount not set by the court is void (e.g., County of Merced v. Shaffer (1919) 40 Cal.App. 163, 180 P. 342 ( Shaffer ); cf. Kiperman v. Klenshetyn (2005) 133 Cal.App.4th 934, 939, 35 Cal.Rptr.3d 178 ["a person may not be released on bond for an amount less than the amount of the bail ordered by the court"] ), American moved to set aside the forfeiture. The trial court denied American's motion, and entered summary judgment against American in accordance with Penal Code section 1306.

Having perfected this timely and authorized ( Pen. Code, § 1305.5 ) appeal, American insists the bond was void from the outset. American advances two contentions: (1) "the posting of a bond in an amount different from that ordered by the court did not create a valid contract" because a bond in such circumstances "does not confirm to the order of the court" and thus "is void for lack of mutual assent"; (2) the bond was void because the bail level was fixed without sufficient constitutional process, specifically, without consideration of the defendant's ability to pay.

269 Cal.Rptr.3d 392

There being no factual dispute, American's contentions receive our independent review. ( People v. Accredited Surety & Casualty Co . (2018) 26 Cal.App.5th 913, 917, 237 Cal.Rptr.3d 534 ; People v. Bankers Ins. Co . (2016) 247 Cal.App.4th 1004, 1007, 202 Cal.Rptr.3d 607.)

American's first argument is predicated on the proposition that a bail bond is only a contract between the government and the surety who guarantees the defendant's appearance in court. (E.g.,

55 Cal.App.5th 268

County of Los Angeles v. Financial Casualty & Surety , Inc . (2018) 5 Cal.5th 309, 314, 234 Cal.Rptr.3d 459, 419 P.3d 934.) And the most elemental principle of the law of contracts is that there can be no contract unless the contracting parties reach a meeting of minds as to the material terms of the contract. ( Civ. Code, §§ 1550, 1565, 1580, 1636 ; Donovan v. RRL Corp . (2001) 26 Cal.4th 261, 270, 109 Cal.Rptr.2d 807, 27 P.3d 702.)

From this American reasons: "the amount of a bail bond (the acceptance) must conform to the order of the court (the offer) or the bond is void and the court is without jurisdiction to forfeit the bond or enter a summary judgment. This principle was recognized a hundred years ago in County of Merced v. Shaffer (1919) 40 Cal.App. 163, 180 P. 342, where the court found that a bond posted for the wrong amount was void. ‘[T]he bond in a criminal proceeding is purely statutory and must conform to the statute and order of the court. If it fails to do so it is not good even as a common law obligation.’ ... [¶] The cases relied upon by Shaffer [ Roberts v. State (Kan. 1885) 8 P. 246 ; San Francisco v. Hartnett (1905) 1 Cal.App. 652, 656, 82 P. 1064 ] stand for the broader proposition that a bond that does not comply with the order of the court is void."

We think otherwise. Authorities at the jail told American that the defendant could be released if a $120,000 bond was posted. American posted its bond in that amount, and the defendant was indeed released. Thus, it appears that minds did meet.

Nor do we believe Shaffer warrants the categorical reading American gives to it. Shaffer involved a motion to reform the bond actually accepted and filed, by which the two defendants and the two sureties undertook that " ‘if he, or they, fail to perform any of these conditions, then he, or they, will pay’ " the amount of the bond. ( Shaffer , supra , 40 Cal.App. at p. 165, 180 P. 342.) Following San Luis Obispo v. Ryal (1917) 175 Cal. 34, 165 P. 1, the Court of Appeal held that the bond was ineffective because it did not comply with statutory provisions mandating that sureties be unambiguously responsible for an accused's failure to appear. ( Shaffer , at p. 167, 180 P. 342.) "The bond executed by the defendants herein was ... not only not binding upon them because they did not agree to pay anything themselves ...." ( Id . at p. 168, 180 P. 342.) The bond in Shaffer was void in the sense it was a nudem pactum , worthless for its ostensible purpose, because the surety did not unambiguously commit itself to pay the sum of the bond. By contrast, the bond filed by American unambiguously obligated American to answer for the defendant's failure to appear, as required by Penal Code section 1459.

But there was a second ground for the decision in Shaffer : the bond was for an amount greater than that set by the court. And it was on this point that

55 Cal.App.5th 269

the Shaffer court spoke of the bond as "absolutely void" and "void upon its face." ( Shaffer , supra , 40 Cal.App. at pp. 167, 180 P. 342 ["a bond in a sum greater than the order of the court is absolutely void"], (40 Cal.App. at p. 168, 180 P. 342) ["The bond executed by the defendants herein ... was

269 Cal.Rptr.3d 393

absolutely void because it was in an amount in excess of the order of the court"].) The court's discussion of the second ground was unnecessary to its decision and in any event is authority only for the proposition that a bond issued in an amount more than the bail set by the court is void. Here, of course, the bond was for an amount less than the bail set by the court, an error that mostly likely redounded to American's benefit. To the extent some of the language in Shaffer is broader than necessary to support its holding, we do not find it persuasive.

In any event, Shaffer is not controlling. Neither are its cited authorities.

Roberts v. State is distinguishable because it too involved a bond in an amount greater than that set by the court. ( Roberts v. State (1885) 34 Kan. 151, 8 P. 246.) There is even older precedent holding that a bail bond for a sum less than court-ordered is not void ( Chumasero v. State (1857) 18 Ill. 405 ) but agreeing that a bond in an amount greater than fixed by a court is ( Waugh v. State (1856) 17 Ill. 561 ).

Upon reflection, San Francisco v. Hartnett gives only momentary pause. There, a bond was successfully defended against forfeiture because the amount was set by a court clerk, not a judicial officer. ( 1 Cal.App. 652, 653–654, 82 P. 1064.) Clearly, that is not what happened here. It may be speculated that it was the court clerk who may have misinformed jail authorities of the amount of bail set by the court. If this surmise is correct, the communication error was nothing like the usurpation seen in Hartnett .

We do note that, if this surmise is correct, there is reason to believe such a mix-up is infrequent, but not unknown. In the course of our research we...