Los Angeles Bail Bonds …just another day

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.

I read the news story of two 80 year old nuns who have become fugitives. They have been living and teaching in a small town between Nice and Sanremo on the French Riviera for the last 50 years. They were notified that they were to be transferred to a remote mountaintop site 250 miles away. It was at this point that they went on the lam. “A third 89-year-old nun, Sister Maurice-Marie, has revealed she also wanted to flee but broke her leg four days before the two elderly sisters disappeared.”
I am hereby volunteering to search for these nuns. Here is why I am qualified.
1) I am Catholic.
2) I have 26+ years experience locating and returning fugitives.
3) I love the French Riviera. I can identify with them. If forced to leave the French Riviera after 50 years there, I’d be hesitant.
I can vow the following… I will stay there and search for these nuns no matter how long it takes. I promise to return them safely to the convent. Should they wish to remain as fugitives, I cannot arrest them and return them in France. (Only in the USA.) Forced by circumstances, I will stay with them until they return voluntarily. No matter how long it takes. Anybody interested?
Now if I could only find somebody to pay for me to go. Any takers?
http://www.metro.co.uk/news/836042-fugitive-nuns-go-on-the-run-in-france

Bondsman charged in “referral scheme”

SANTA ANA – A bail bond agent was arrested Thursday and accused of soliciting attorney referrals and inmate business in an illegal bail bond referral scheme.

Ronald Lee Brockway, 50, of Seal Beach, is charged with two felony counts of violating bail license regulations and faces a maximum sentence of three years and eight months in state prison.

He is being held on $50,000 bail pending his arraignment.

California law prohibits bail bond employees from soliciting bail business from any inmate or incarcerated person, according to a news release from the Orange County District Attorney’s Office. The law also prohibits bail bond employees from recommending any attorney to any bail bond client, even if no money changes hands.

Brockway is accused of sending numerous e-mails to attorneys soliciting them to participate in an illegal bail bond scheme with his company, Respect Bail Bond, according to the news release.

In his messages, Brockway is accused of suggesting that the attorneys refer bail bond business to him, while offering to refer clients to the attorneys in order to “increase both of our earnings substantially,” prosecutors said.

Brockway is also accused of unlawfully soliciting business from inmates by mass mailing flyers to the Orange County jail containing the name and contact information for Respect Bail Bond. The flyers read, “Get out of jail today by calling now!”

In October 2005, Brockway testified in an Orange County Grand Jury hearing that he had received cash payments from attorney Joseph Cavallo in exchange for referring arrestees to Cavallo’s law practice.

Brockway was not prosecuted in that case because his testimony was needed in the prosecution of other defendants, prosecutors said.

Cavallo was indicted based partly on Brockway’s testimony. Cavallo pleaded guilty on Oct. 12, 2007, to conspiracy to engage in attorney capping, or paying for clients, and an illegal attorney referral scheme. He was sentenced to six months in jail on Dec. 14, 2007.

The District Attorney’s Bureau of Investigation began investigating the current case after a private attorney contacted the OCDA to report receiving the e-mail from Brockway regarding the illegal referral scheme.

Contact the writer: lwelborn@ocregister.com or 714-834-3784

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 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.