Los Angeles Bail Bonds …just another day

In Goodfellas Bail Bonds v. State, 2010 WL 3463385 (Nev. May 7, 2010) the trial court entered a judgment against the surety and the surety appealed.  The Nevada Supreme Court dismissed the appeal and repeated its holding in International Fidelity Insurance Co. v. State, 126 P.3d 1133 (2006) that there is no jurisdiction to appeal “an order denying a motion to remit surety bond or any other order entered in an ancillary bail bond proceeding.” (Emphasis by the Court).

In State v. Randolph & Company Bail Bonds, 2010 WL 3447411 (Ariz.App. August 31, 2010) the defendant failed to appear for arraignment but the court vacated and reset the arraignment date.  When he again failed to appear, the court issued a bench warrant and he was arrested later that day.  At the bail forfeiture hearing, a non-lawyer representative of the bail agency appeared but did not object to the court’s use of the first nonappearance date to forfeit the bond.  On appeal of a judgment forfeiting the bond, the Court held that the objection was waived by not being presented in the trial court and that the surety’s appearance by a non-lawyer was effectively a failure to appear.  Having failed to appear, the surety did not meet its burden of establishing good cause for the defendant’s default.  This is the third recent Arizona case refusing to let the non-lawyer bail bond agent represent the surety in the trial court.

In State v. Padilla, 2010 WL 3396902 (Minn.App. August 31, 2010) the defendant failed to appear, an order was entered forfeiting the bond, and a copy of the order was mailed to the agent but not to the surety.  The agent and surety moved to reinstate and discharge the bond because the notice required by Minn.R.GenPrac. 702(e) was not given to the surety and the “bondsman.”  The trial court reinstated the bond because the surety was not given notice but refused to discharge it.  Instead, the court gave the surety and agent 30 days to request a hearing.  The court denied a renewed motion to discharge and entered an order forfeiting the bond.  The surety and agent appealed.

The Court of Appeals held that under the Rule “bondsman” was the entity issuing the bond, not the specific employee signing it, and so the requirement of notice to the “bondsman” was met by sending notice to the agent.  The trial court’s reinstatement and 30 days notice cured any prejudice to the surety from the initial failure to notify it.  At the second hearing, the surety did not produce the defendant and has not recovered him.  Applying the Shetsky factors, the trial court did not abuse its discretion in refusing to discharge the bond.

In State v. Nelson, 2010 WL 3220156 (Minn.App. August 17, 2010) the defendant was apprehended by law enforcement personnel two months after he failed to appear.  The surety did not contribute to his re-capture.  The trial court initially reinstated the bond but imposed a 50% penalty because the surety did not serve the defendant with notice of the hearings on its motion to reinstate and discharge the bond.  The Court of Appeals reversed that decision in an opinion reported at 773 N.W.2d 330 (Minn.App. 2009).  Following remand, and without holding a further hearing, the trial court issued an order reviewing the factors for a penalty following reinstatement of a bond (the Shetsky factors) and reached the same result that it had before, i.e. a 50% penalty.  The surety appealed the trial court’s refusal to hold a new hearing and its forfeiture of 50% of the bond.  The Court held that the original two hearings gave the surety ample opportunity to present whatever evidence it had and that the trial court’s application of the Shetsky factors was not an abuse of discretion.  In particular, the surety’s failure to make good faith efforts to apprehend the defendant during the two months in which he was a fugitive supported the trial court’s decision.

In People v. Indiana Lumbermens Mutual Insurance Co. , 2010 WL 3009588 (Cal.App. August 3, 2010) the defendant fled to Mexico.  A few days before expiration of the extended appearance period, the surety learned that the defendant had been arrested in Mexico and confined to a town there.  The surety filed a motion to toll the running of the appearance period either because the confinement was a temporary disability pursuant to Penal Code §1305(e) or on equitable grounds.  The trial court denied relief and entered summary judgment against the surety.  On appeal, the Court accepted that confinement could be a temporary disability but rejected the surety’s argument because the defendant was not absent based upon the temporary disability.  The Court held: “We accordingly construe section 1305(e) as follows.  A detention occurs where civil authorities restrain a defendant, whether by physical apprehension or by force of law.  A defendant is ‘temporarily disable[d] by reason of’ the detention (§1305(e)(1)) when the operation of law is the direct cause of a defendant’s failure to appear . . . However, a detention has not prevented the defendant’s appearance under section 1305(e) when it merely buttresses the preexisting direct cause, such as where a defendant voluntarily flees to a country to which the bail agents cannot travel . . . “  The Court found that the evidence provided by the surety, unauthenticated E-mails, was insufficient to establish an abuse of discretion in finding that the defendant was not absent from the court based on his confinement in Mexico.  The Court also found that the record was inadequate to compel granting equitable tolling of the appearance period.  No reporter’s transcript was provided, so the Court did not know the basis on which the trial court rejected the surety’s motion for equitable tolling.  The Court declined to address the merits of the surety’s equitable tolling argument because of the surety’s failure to provide an adequate record.  [Not Published].

In Casteneda v. State , 2010 WL 3030973 (Tex.App. – San Antonio August 4, 2010) the surety filed an answer to the rule to show cause but did not appear for the hearing.  The court entered a final judgment forfeiting the bond, and the surety did not pursue an appeal.  Instead, the surety filed a bill of review as a separate cause.  The trial court denied relief and the surety appealed.  The Court found no just cause for the surety not to have raised its defenses in a direct appeal of the judgment and so no abuse of the trial court’s discretion in denying the separate bill of review.  The Court affirmed the judgment without considering the surety’s alleged defense on the merits of the case.

In United States v. Gonzales & Gonzales Bonds and Insurance Agency, Inc., 2010 WL 2985545 (N.D.Cal. July 27, 2010) the Government sued an agent and surety to collect on certain immigration bonds and the defendants counterclaimed.  The court held that the bonds were three party contracts among the surety, the United States and the principal and that there was Tucker Act jurisdiction over the surety’s counterclaim to recover money paid on forfeited bonds.  The court also, however, held that the Department of Homeland Security’s administrative procedure for declaring a breach of the bond and for an administrative appeal of that declaration was valid and the court’s review would be on the arbitrary and capricious standard of the Administrative Procedures Act.  The court rejected the surety’s contention that it was entitled to a de novo determination of its liability but did hold that the surety was entitled to discovery of the alien’s “A-file.” The surety could use information from the file to help show that the Government’s determination of a breach was arbitrary and capricious because it did not consider all pertinent information or did not follow the law, regulations, agreements or other authority.

In Villasana v. City of Houston , 2010 WL 2991095 (S.D.Tex. July 26, 2010) an attorney who acted as bail bond surety for his clients in the City’s Municipal Court filed a purported civil rights action against the City and several of its employees objecting to the City’s attempts to compel payment on forfeited bonds that he alleged he had been told would not have to be paid.  The suit sought to enjoin the City from refusing to accept the attorney’s bonds, to exonerate all bonds written during a certain time period, and to have any subsequent bonds processed “in accordance with due process.”  The defendants moved to dismiss the suit for lack of subject matter jurisdiction and failure to state a claim.  The court recited some confusion as to procedures on such bonds but found no basis for a claim that the City’s actions were substantively or procedurally unfair and no basis to relieve the attorney from his obligations.  The court granted the defendants’ motion to dismiss.

In United States v. Powell, 2010 WL 2557388 (N.D.Cal. June 21, 2010) the Magistrate Judge rejected the Government’s argument that the sureties on an appearance bond must demonstrate assets adequate to cover the bond amount.  The Magistrate Judge held that she could order an “unsecured” appearance bond pursuant to the catch-all provision of the Bail Reform Act, 18 U.S.C. §3142(c)(1)(xiv): “any other condition that is reasonably necessary” to assure the defendant’s appearance and community safety.

In Arroyo v. Bajramj , 2010 WL 2682750 (Conn.Super. May 26, 2010) a bail agent sued the defendant for an allegedly unpaid balance of the premium.  The parties agreed that bonds totaling $215,000 were provided, $6,450 was paid in cash, and the defendant appeared as required.  The issue was any unpaid balance of the premium.  The documents submitted by the plaintiff were notable for uncompleted blanks and references to security for appearance rather than premium amounts.  They did not state an unpaid premium balance.  The plaintiff argued he was owed $9,150 plus attorneys fees and relied on Conn. G.S. §29-151, which the court found stated a maximum premium but did not set a minimum amount.  The defendant, however, admitted that after he was released he agreed to pay another $2,500 and the court found support for a $150 “B.U.F. Fund” assessment.  The court entered judgment for $2,650 and no attorneys fees.

In County of Los Angeles v. American Contractors Indemnity Co. , 2010 WL 2373364 (Cal.App. June 15, 2010) the defendant repeatedly failed to appear, but his counsel represented that the defendant had health problems.  Eventually the court declared a forfeiture and entered summary judgment on the bond.  The surety moved to set aside the summary judgment and exonerate the bond.  The court denied the motion 126 days after the motion was filed, and the surety appealed.  The appeal was filed 175 days after notice of entry of the summary judgment.  The Court dismissed the appeal as untimely.  The surety argued that the trial court lost jurisdiction when it failed to forfeit the bond when the defendant first failed to appear without sufficient excuse.  The Court held that the trial court had fundamental jurisdiction and may only have acted in excess of its jurisdiction.  Therefore, the summary judgment became final when the appeal period expired, and it was not subject to collateral attack by the surety’s motion to set it aside.

In County of Los Angeles v. American Contractors Indemnity Co., 2010 WL 2373364 (Cal.App. June 15, 2010) the defendant repeatedly failed to appear, but his counsel represented that the defendant had health problems. Eventually the court declared a forfeiture and entered summary judgment on the bond. The surety moved to set aside the summary judgment and exonerate the bond. The court denied the motion 126 days after the motion was filed, and the surety appealed. The appeal was filed 175 days after notice of entry of the summary judgment. The Court dismissed the appeal as untimely. The surety argued that the trial court lost jurisdiction when it failed to forfeit the bond when the defendant first failed to appear without sufficient excuse. The Court held that the trial court had fundamental jurisdiction and may only have acted in excess of its jurisdiction. Therefore, the summary judgment became final when the appeal period expired, and it was not subject to collateral attack by the surety’s motion to set it aside.

In People v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 2254799 (Cal.App. June 7, 2010) the defendant was released on bond subject to an INS hold.  He was either deported, or voluntarily returned, to Mexico or Guatemala.  When he failed to appear, the court declared a forfeiture and notice was mailed.  After one extension of the appearance period, summary judgment was entered.  After expiration of the extended appearance period, the surety moved to set aside the summary judgment and discharge the bond on the ground that it was impossible to return the defendant because he could not legally enter the United States.  The trial court denied the motions and the surety appealed.

The government argued that the surety’s motions were untimely because they were filed after expiration of the appearance period.  The Court agreed that the motions were untimely.  The Court found that the surety’s motions were based on Penal Code §1305 and had to be filed within the time limits set forth in the statute.  The Court nevertheless considered the surety’s arguments on their merits and found that the defendant’s absence was not a permanent disability under §1305(d) nor that he was detained and the prosecutor refused to seek extradition under §1305(f).  The surety or the defendant could have sought pursuant to 8 U.S.C. §1182(d)(5(A) for him to be allowed to enter the U.S. to appear in court.  Thus, the surety’s motions were not based on the lack of jurisdiction of the trial court to entered summary judgment, or on the trial court’s obligation on its own motion to vacate the forfeiture order, but rather on arguments that the surety was entitled to relief under §1305.  As such, the motions had to be filed within the extended appearance period, and even if considered on their merits the motions were properly denied.  The Court affirmed summary judgment against the surety.  [Not published].

In People v. Fairmont Specialty Group , 2010 WL 2246448 (Cal.App. June 7, 2010) the clerk mailed a notice of forfeiture to the surety to start the appearance period, but apparently no actual forfeiture was declared in open court.  After one extension of the appearance period, the surety moved to vacate any forfeiture and exonerate the bond.  The surety appealed from denial of its motion and the eventual summary judgment.  The Court held that failure to declare a forfeiture on the record resulted in exoneration of the bond and loss of jurisdiction to enter the judgment.  The Court reversed the judgment against the surety and remanded with directions to vacate forfeiture and exonerate the bond.  [Not published].

In People ex rel. County of Orange v. Accredited Surety and Casualty Co. , 2010 WL 2332965 (Cal.App. June 10, 2010) the defendant failed to appear.  The court apparently intended to forfeit the bond, but it said the bond was exonerated.  The trial court denied the surety’s motion to vacate the forfeiture and entered summary judgment.  On the surety’s appeal, the Court rejected the surety’s argument that certain “magic words” had to be used to declare a forfeiture, but held, “it is clear that court must declare a forfeiture and that it is not sufficient for the court to state the opposite, that the bond is exonerated, even if it appears the court misspoke unintentionally.”  Having failed to declare a forfeiture in open court, the trial court lost jurisdiction to forfeit the bond at a later date, and the Court reversed the judgment.  [Not published].

In People v. Indiana Lumbermens Mutual Insurance Co. , 2010 WL 2303207 (Cal. June 10, 2010) the California Supreme Court resolved a conflict between two Courts of Appeal by holding that a surety must file its motion to vacate forfeiture of its bond within the appearance period if it relies on the arrest or surrender of the defendant in another county.  The defendant failed to appear in Los Angeles on April 18, 2007, and the court declared a forfeiture.  The bail agent surrendered the defendant in San Bernardino County on July 16, 2007.  Summary judgment was entered against the surety on December 4, 2007.  On January 8, 2008, the surety moved to vacate the summary judgment, set aside the forfeiture and exonerate the bond.  If the motion had been filed within the appearance period, it should have been granted pursuant to Penal Code §1305(c)(3) because the defendant was returned to custody outside of Los Angeles County, but there was a division between Courts of Appeal as to whether the surety could file the motion after the appearance period expired.  The Court discussed the legislative history of §1305 and the conflicting Courts of Appeal cases and held that §1305(i) applied and required the surety to file its motion within the appearance period.

In United States v. Gonzales & Gonzales Bonds and Insurance Agency, Inc. , 2010 WL 2265213 (S.D.Ind. May 27, 2010) the United States sued an agent and surety on 18 immigrant delivery bonds.  The Government filed suits against the same defendants to enforce other bonds in the Western District of Tennessee and the Northern District of California.  The case filed in Tennessee had already been transferred to the Northern District of California, and the defendants made a motion to transfer this case as well.  The court granted the motion for the convenience of the parties and witnesses and the interest of justice.

In People v. Sanchez , 2010 WL 2224699 (Cal.App. June 4, 2010) the defendant failed to appear for arraignment on April 1, 2008.  Defense counsel said that he told the defendant of the date but that there may have been confusion over 4/1/08 versus 4/18.  The court did not forfeit the bond and continued the matter to April 18.  When the defendant failed to appear on the 18^th , the court forfeited the bond and issued a bench warrant.  The Court rejected the surety’s argument that the trial court lost jurisdiction when it failed to forfeit the bond on April 1.  The Court thought that the defendant’s record of appearing on numerous prior occasions and counsel’s explanation were sufficient to prevent the trial court’s action from being arbitrary or capricious.  The trial court acted within its discretion.  The Court also rejected the surety’s argument that there was no court order directing the defendant to appear on the 18^th.  The operative date was April 1, when he had been ordered to appear.

The surety also argued that the defendant was detained in Mexico but the prosecutor had not entered the warrant in the NCIC system and would not seek extradition.  The Court thought that the record failed to establish that the warrant was not entered in the NCIC database or that, if it had been entered, the Mexican authorities would have held the defendant.  Similarly, the Court thought the record did not show that the prosecutor’s office refused to seek extradition as opposed to failed to produce extradition documents immediately.  The Court characterized the record as showing “coordination between agencies that was slow to progress due to various employees being on vacation” rather than an election not to extradite.  [Not published].

Safety National Casualty Corp. v. U.S. Department of Homeland Security , 2010 WL 2219162 (S.D.Tex. May 28, 2010) addressed five issues that the parties could not resolve in their ongoing ADR procedure as follows: (1) a premature “run letter” bars a breach even if not received by the principal.  (2) If the box requesting notice to both the surety and the agent is checked but the same address is listed for both, the government can comply by sending separate notices or by sending a single notice addressed to both at the common address.  One notice addressed to one recipient, however, is not compliance.  (3) This “notice to both” defense had to be raised in administrative proceedings to be preserved, and such exhaustion of administrative remedies was not excused as futile.  (4) No bond involved in the case presented the issue of a “home grown” run letter not on Form I-166, therefore the court could not decide whether a premature such letter would bar breach of the bond.  And, (5) the surety was entitled to assert offsets or credits to reduce the amount claimed by the government, but bond forfeitures the surety paid voluntarily could not be the basis for such an offset or credit.