Los Angeles Bail Bonds …just another day

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.

Another interesting night at the office. Two phone calls can put a lot of levity in your life.

The first call was from an indemnitor who did not appreciate getting a bill in the mail. It has been eight months since the defendant was bailed out of jail. In that time he has made sputtering, at best, payments. She said she only paid the ‘down payment’ and the defendant had a personal guarantee with her that he would pay the premium. I asked if she remebered signing the bail agreement. She stated that it didn’t matter, he had told her he was paying. I guess she missed the class that went over the signing of contracts and personal liability for failure to honor contracts. She told me she guessed that she would just have to go spend her day in court and that we should ‘do what we have to do’. I guess we will let the judge decide….

The next call was one that I have never received before. A lady called and said her friend has a boyfriend who has been in and out of jail for three years. He had been arrested recently for a parole violation and was going to be in the Los Angeles County Jail for awhile. She wanted to know if she could have conjugal visits with him if she were to marry him. She didn’t want to marry him (because he’s not a good guy) but wanted to have conjugal visits and figured they needed to be married in order to do so. I told her to skip the wedding, there are no conjugal visits at the County Jail.

As the title says “Los Angeles Bail Bonds …just another day”

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.

In State v. Giusini , 2010 WL 2196001 (N.J.Super.A.D. June 2, 2010) the defendant failed to appear and the bond was forfeited.  The following month, he was arrested on a traffic charge in another county.  The court converted the bench warrant to a detainer and reinstated the bond without the surety’s knowledge or consent.  While the defendant remained in custody in the other county, the surety’s agent filed a pro se motion to reinstate and discharge the bond.  That motion was never ruled on, but a few days later the defendant was returned and released on the reinstated bond.  The defendant again failed to appear, and a judgment was entered on the bond.  The surety appealed, and the Appellate Division recognized that the court could not increase the surety’s risk without the surety’s consent.  Here, at the time the court erroneously reinstated the bond, the defendant was in custody and had been a fugitive for only four weeks.  The surety could have refused to reinstate the bond and sought remission pursuant to the remittitur guidelines.  Instead, the surety was exposed to a far higher risk when the defendant again failed to appear in court.  Therefore, applying basic principles of suretyship law, the Court held that reinstatement of the bond increased the surety’s risk.  The Court remanded the case for remission of the amount forfeited considered as of the date the bond was reinstated.  For purposes of remission, the Court directed the trial court to apply the Guidelines as if the defendant was in custody after only four weeks as a fugitive and not to have committed a new crime because traffic offenses are not crimes.  The county argued that the surety agent’s motion was consent to reinstate the bond, but the court interpreted it as an attempt to extinguish any further risk based on the defendant’s failure to appear.

In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., 2010 WL 2115954 (Cal.App. May 27, 2010) the surety appealed the trial court’s refusal to extend the initial appearance period.  The surety’s motion relied on an affidavit from an investigator describing his attempts to locate the defendant.  The Court held that good cause for an extension required both due diligence in the initial period and a reasonable likelihood of success in capturing the defendant if the extension is granted.  Here, the Court thought that even if the investigator’s actions were due diligence, there was an insufficient showing of likelihood that the defendant would be located if more time were allowed.  The Court held that the trial court did not abuse its discretion in denying the extension and affirmed summary judgment on the bond.