People v. Ranger Insurance Co., 134 Cal. Rptr.2d 199 (Cal. App. May 19, 2003) rejected the argument that the court lost jurisdiction to forfeit the bond when it failed to declare forfeiture on the first date the defendant did not appear.

People v. Ranger Ins. Co., 2003 WL 21205949 (Cal. App. May 23, 2003) rejected the surety's argument that the bond was exonerated by failure to notify the surety within 30 days of forfeiture. The defendant failed to appear and the bond was forfeited, but he appeared the next day with the bail agent and the bond was reinstated. He subsequently failed to appear for sentencing and the bond was forfeited. The Court made short work of the argument that failure to give notice within 30 days after the first forfeiture was fatal. In People v. Granite State Ins. Co., 2003 WL 21227856 (Cal. App. May 28, 2003) the defendant failed to appear and the bail bond was forfeited. The defendant appeared the next day. The court released her for one day on her own recognizance to obtain reinstatement of bail. Granite, through its agent, signed a letter reinstating the bond. After pleading guilty, the defendant did not appear for sentencing, and the bond was forfeited. The court of appeals rejected a list of arguments based on the earlier forfeiture and reinstatement. It held that Granite had voluntarily resumed its obligations and was estopped to deny them later.

People v. Ranger Ins. Co., 2003 WL 21228415 (Cal. App., May 28, 2003) affirmed forfeiture of bond after the trial court accepted the defendant’s guilty plea, told him what sentence to expect, and released him on bond pending return for sentencing. The court held that only actual sentencing constitutes pronouncing judgment. The court also held that Cal. Penal Code §1166 requires remanding the defendant into custody only after a verdict and does not apply to a guilty plea.

County of Los Angeles v. American Contractors Indemnity Company, 2003 WL 21366706 (Cal. App. June 13, 2003) affirmed denial of a motion to vacate forfeiture of a bond because the defendant was released after pleading guilty. This is another case following People v. Seneca Insurance Company and holding that Cal. Penal Code Section 1166 does not apply following a guilty plea.

People v. Ranger Insurance Co., 2003 WL 21660336 (Cal. App. July 16, 2003) held that “the bail” in Penal Code §1305(c)(4) requiring notice to the bail prior to reinstatement of the bond was the surety company, but nevertheless denied relief because notice to the bail agent was notice to the surety company.

People v. Frontier Pacific Ins. Co., 2003 WL 21663680 (Cal. App. July 16, 2003) is another in a series of cases holding that a guilty plea is not a conviction under Penal Code §1166.

In People v. Ranger Ins. Co., 2003 WL 21929474 (Cal. App. August 13, 2003) the defendant, a Lebanese national, fled to Lebanon. The bail recovery agent located him there, took him into custody and had him identified by the mayor of the town. The surety alleged that the Lebanese police stated they would surrender the defendant at the airport if they received a federal warrant through Interpol. The United States, however, has no extradition treaty with Lebanon. The Court affirmed refusal to vacate forfeiture of the $450,000 bail bond. Cal. Penal Code section 1305(g) allows exoneration of the bond if the defendant is located in another jurisdiction and the prosecutor elects not to seek extradition. Extradition, however, must be feasible. The prosecutor is not required to attempt the impossible. The Court concluded that extradition was not feasible and that the surety had not established that the prosecutor could be a party to "a procedure which does not comport with the extradition process."

People v. Granite State Insurance Co., 2003 WL 22172412 (Cal. App. September 22, 2003) held that a timely judgment properly entered following forfeiture could be corrected to name the surety company rather than the bail agent as the surety even though the 90 day period to enter judgment against the surety had run at the time of the correction. It was clear throughout the file that Granite was the surety, but the judge erroneously entered the judgment against the bail agent, Exit Bail Bonds. Clerical errors in judgments can be corrected, and the court of appeals held that there was no evidence the Judge actually meant to hold the agent liable instead of the surety. In People v. American Contractors Indemnity Company, 2003 WL 22300590 (Cal. App. October 8, 2003) the surety moved to set aside summary judgment on a bail bond because the summary judgment had been entered before expiration of the 185 day period in which the defendant's appearance would exonerate the surety. The court twists around about whether the trial court really lacked jurisdiction to grant the summary judgment. The surety did not appeal the summary judgment and waited until the time in which the court could enter judgment had passed before it moved to set aside the judgment. The court of appeals characterizes this as trifling with the courts. The court clearly stretched for a way not to let the surety out on what the court regarded as a technicality, and in doing so admitted that its result was inconsistent with two other recent cases. The court held that the premature judgment was only "voidable" and should have been challenged directly by appeal and that the surety was now estopped to make a collateral challenge by motion to set aside the judgment.

In People v. Accredited Surety & Casualty Co., 2003 WL 22434669 (Cal. App. October 28, 2003) the bail bond was issued for an alias name, but the defendant was subsequently arraigned under his correct name. The defendant failed to appear and notice of bail forfeiture was mailed to the surety. The name problem caused confusion in attempting to apprehend the defendant. The bail agent filed several different motions to vacate the forfeiture and exonerate the bond. Various extensions of the 180 day period in which such relief can be requested were also made. The motions were eventually denied and summary judgment entered against the surety. On appeal the court reversed the judgment and exonerated the bond on purely procedural grounds.

Under the California statutory scheme, if the defendant appears, surrenders or is arrested within 180 days from notice of forfeiture (185 days if notice is mailed), the forfeiture is vacated and the bond exonerated. The 180 day period can be extended only if the request is made prior to expiration of the period. If the 180 day period expires, the court loses jurisdiction to grant an extension and must enter summary judgment against the surety within 90 days of the expiration. The bail agent’s request to extend the 180 day period was granted, but it had been made too late. Therefore, the court did not have jurisdiction to grant it, and summary judgment had to be entered within 90 days of the expiration of the original 180 day period (in this case 185 days because notice was mailed). The summary judgment was entered within 90 days of the end of the erroneously extended period but not within 90 days of the expiration of the original period, therefore the trial court had no jurisdiction to enter the summary judgment.

People v. Alistar Insurance Company, 2003 WL 22435764 (Cal. App. October 28, 2003) affirmed the trial court’s refusal to set aside summary judgment against the surety. The defendant was charged with three separate offenses and three separate orders were entered admitting him to bail, none of which were in the amount of the bond. A single bond was issued and accepted. The court held that the defect predated the surety bond and so was waived by the bond’s issuance and that, in any case, the bond contract should be enforced even if technically not in compliance with the court’s orders. The court also found that the clerk’s proofs of service and docket entries were sufficient evidence to support the trial court’s finding that notice of forfeiture was received even though the bail agent and surety denied receipt.

People v. American Contractors Indemnity Company, 2003 WL 22480588 (Cal. App. November 4, 2003) denied a petition for rehearing of People v. American Contractors Indemnity Company, 2003 WL 22300590 (Cal. App. October 8, 2003) but re-wrote the section of the earlier decision addressing the court's jurisdiction to enter summary judgment before expiration of the 185 day period following mailing of the notice of forfeiture. The California Supreme Court granted review of the revised decision, People v. American Contractors Indemnity Company, 81 P.3d 223 (Cal. 2003).

People v. American Contractors Indemnity Co., 2003 WL 22753648 (Cal. App. November 21, 2003) reverses summary judgment on a bail bond and directs that the surety be exonerated. The defendant failed to appear on May 21 but her attorney indicated she had car trouble. The court forfeited the bond but stayed the bench warrant. The defendant appeared on May 23 and the bail was reassumed. On June 11 the defendant again failed to appear, the bond was again forfeited, and this time notice of the forfeiture was given to the surety and bail agent. They were not given timely notice of the May 21 forfeiture. The Court of Appeals held that failure to give notice of the May 21 forfeiture deprived the trial court of jurisdiction over the bond and the subsequent forfeiture was void. The Court specifically stated that (1) no prejudice need be shown from failure to give the statutory notice of a bail forfeiture, (2) notice is required for every forfeiture, (3) a forfeiture order cannot be stayed, the proper statutory procedure is to continue the case without ordering forfeiture, and (4) the judge's intent is to be found from his or her own words not the clerk's minute orders. In this case the Sixth District Court of Appeal does not mention the collateral attack/estoppel argument of the Fourth District Court of Appeal in People v. American Contractors Indemnity Co., 2003 WL 22300590 (October 8, 2003), on rehearing WL 22480588 (November 4, 2003) even though it appears that the surety followed the same procedure and moved to set aside the judgment of forfeiture as made without jurisdiction rather than directly appealing its entry.

In People v. Gutierrez, 2003 WL 22766041 (Cal. App. November 24, 2003) the bond was for $215,000 and the premium was $21,500. The defendant's mother paid $2,100 and pledged her house as security for the bond. She did not make any more premium payments, and the bail agent surrendered the defendant two months after the bond was posted. The defendant had not violated any terms of release, but the bail agent claimed he had given misinformation in obtaining the bond. The bail agent asserted that the balance of the premium was due, and the court ordered him to show cause why the premium should not be refunded under Cal. Penal Code §1300 (b). The trial court held that there was no good cause for the surrender, reduced the premium to $4,500 and reduced the lien on the mother's property to $2,400 (the unpaid balance of the $4,500). The Court of Appeals held that the bail agent failed to demonstrate any abuse of discretion by the trial court and affirmed the order.

In People v. Allegheny Casualty Company, 2003 WL 22794427 (Cal. App. November 25, 2003) conditions of release were ordered including that the defendant not drive, not possess alcohol, and attended Alcoholics Anonymous meetings. He failed to appear for his next court date, and the bond was forfeited. The appeal raised two issues. First, the surety argued that imposition of conditions in addition to appearance invalidated the bail contract. The court pointed out that the forfeiture was only for failure to appear, a risk that the surety unquestionably assumed. The court thought that violation of the additional conditions would not have resulted in forfeiture of the bond and, therefore, did not increase the surety’s risk. The court stated, “There is no suggestion in the record that violation of any of those conditions would result in the forfeiture of his bond.”

The second issue was that the trial court entered summary judgment against the bail agent as well as the surety. The government conceded that was error, and the court of appeals directed the trial court on remand to remove the bail agent as a judgment debtor. People v. Bankers Insurance Co., 2003 WL 22977551 (Cal. App. December 19, 2003) held that the failure of the bondsman's lawyer to follow instructions to move to extend the 185 day period in which the surety could seek to exonerate the bond forfeiture did not allow the court to consider an untimely motion to exonerate the bond.

In People v. Granite State Ins. Co., 2003 WL 22994541 (Cal. App. December 22, 2003) the court held that the 90 day period in which the court had jurisdiction to enter summary judgment against the surety commenced on the date the surety's timely motion to set aside forfeiture and exonerate the bond was denied. Once forfeiture is entered, there is an 180 day exoneration period (185 days if notice is mailed to the surety) which can be extended up to another 180 days. If the surety files a timely motion to exonerate the bond (i.e. files before the expiration of the 180 day period plus any extensions) then the date upon which summary judgment can first be entered against the surety is the day following the denial of the motion. The 90 day period starts upon denial of a timely motion not upon expiration of the period in which the motion had to be filed. People v. Alistar Ins. Co., 2003 WL 23100265 (Cal. App. December 31, 2003) presents two issues. First, the surety moved to extend the 180 day period to set aside the forfeiture, but noticed its motion for hearing six days after the expiration of the 30 day period in which such motions may be granted. By statute, the 30 day period may be extended for good cause, but here the court never was asked to extend it. The Court of Appeals, however, rejected the government's argument that the 30 day period was jurisdictional and held that since the trial court heard and decided the motion, and the state did not object to its being heard, the court of appeals would presume that there was good cause to extend the 30 day period.

The trial court however, denied the motion on its merits and refused to extend the 180 day period. The Court of Appeals reversed the trial court and held that the fairly detailed affidavit filed by the surety detailing the efforts of its investigator to locate the defendant was grounds to extend the 180 day period. The state argued only that the bond had been written without sufficient collateral, which the Court found to be irrelevant to the question. The Court pointed out that the law should avoid forfeitures and that the purpose of the bond is to give the surety an incentive to locate and return the defendant not to raise money for the state through forfeitures.

In Cardenas v. American Surety Company, 2004 WL 206286 (Cal. App. February 4, 2004) relatives of the defendant pledged a house as collateral for the bond. The defendant was released into the custody of INS and immediately deported to Mexico. Naturally, he did not appear for trial and the bond was forfeited. The surety instituted non-judicial foreclosure against the house, and the bail agent, surety and indemnitors made a deal in which the house was sold to the agent with credit on the purchase price for the amount of the bond and various related expenses. The agent neglected to tell the indemnitors that a motion to exonerate the bond based on the deportation was filed and granted, so the agent ended up with no bond liability and the house. The indemnitors found out about the exoneration when they checked the court file on the criminal case and sued for breach of fiduciary duty, fraud, etc. The jury held for the surety and agent, and the indemnitors appealed various rulings of the trial court on motions and jury instructions. The court of appeals reversed and remanded for a re-trial. The court relied on the fact that applicable regulations provided that the collateral was held in a fiduciary capacity and that constructive fraud includes failure to disclose a material fact in breach of a fiduciary duty even though there was no intend to defraud.

Interestingly, one of the few issues on which the court of appeals affirmed the trial court was denial of the indemnitors' motion to amend their complaint to add a bad faith count. The court of appeals noted that the Cates decision was based on the unique relationship of the parties to a surety contract, not just to a construction performance bond, and stated, "We decline appellant's request that we expand tort remedies available only in insurance bad faith actions to a claim for breach of a bail bond surety contract." People v. Bankers Insurance Co., 2004 WL 308146 (Cal. App. February 19, 2004) considers the circumstances under which a surety must refund premium after surrendering a defendant. The defendant was arrested for several crimes and each time posted bonds. His sister paid the premiums and secured the bonds with deeds of trust on her residence. After the third arrest the surety on the bonds for arrests number 1 and 2 surrendered the defendant arguing that its risk had been increased by the third arrest and substantial bond posted by another company. The court ordered return of the premiums for bonds 1 and 2 pro rated for the time the defendant was free on the bonds (based on a hypothetical one year term). The Court of Appeals held that the trial court did not abuse its discretion in ordering return of premium or in arriving at an amount to be returned. In People v. Seneca Insurance Co., 2004 WL 346049 (Cal. App. February 25, 2004) the surety made a timely motion to extend the 185 day period in which the bond forfeiture could be avoided by returning the defendant. The defendant was apprehended, based on information provided by the bail agent, nine days after the 185 day period expired and while the extension motion was pending. The trial court refused to vacate the forfeiture. The court of appeals affirmed and held that filing a motion to extend the 185 day period does not automatically extend it and that nothing that happens after the 185 day period expires can constitute good cause to extend it. Therefore, the surety was limited to the grounds which existed prior to the expiration (that there was confusion getting notice to the actual bail agent whose name did not appear on the bond). The Court of Appeals found the trial court was within its discretion in rejecting this grounds.

In People v. Alistar Insurance Company, 2004 WL 377680 (Cal. App. March 2, 2004) the surety moved to extend the 180 day period to produce the defendant and submitted an affidavit explaining in detail its specific efforts to locate the defendant and why the efforts had so far been unsuccessful. The trial court denied the motion without a hearing. The Court of Appeals reversed and held that the surety had shown good cause for the extension by submitting the affidavit and the court abused its discretion in denying the motion. In fact, the state conceded that the motion should have been granted. This case is a roadmap for what needs to be done to obtain an extension of the 180 day period. In People v. Lexington National Insurance Company, 2004 WL 386463 (Cal. App. March 3, 2004) the defendant appeared, admitted to a probation violation and was sentenced. He was granted leave to surrender six days later, and he failed to appear on the surrender date. The court ordered the bond forfeited, and a proper notice was mailed. The surety moved to vacate the forfeiture and exonerate the bond on the ground that the bond was exonerated by operation of law when the defendant was sentenced. The motion was denied. Another judge entered summary judgment against the surety, and denied the surety's motion to discharge the forfeiture and set aside the summary judgment. The surety appealed. The prosecutor and the court recognized that the surety was correct and the sentencing of the defendant exonerated the bond. The issue was whether the forfeiture could be overruled by denying summary judgment. The court held for the surety on the ground that exoneration of the bond upon sentencing of the defendant was automatic and thus the judge declaring the forfeiture had no jurisdiction over the surety and his order was void. Therefore, the second judge had jurisdiction to deny the motion for summary judgment. Had the first judge merely been mistaken, but within his jurisdiction, then it would have been necessary to attack his order directly by appeal. In Seneca Insurance Co. v. County of Orange, 2004 WL 575747 and 2004 WL 739847 (Cal. App. March 24, 2004) pursuant to Cal. Penal Code §1305.4 the surety obtained an extension of the period for bond forfeiture. The day before it was to expire, a police detective, apparently acting at the behest of a bounty hunter and the indemnitor on the bond, went to the Judge in chambers and obtained another extension. The defendant was not surrendered and summary judgment was entered against the surety within the statutory 90 days from the expiration of the second extended period. The surety moved to set aside the judgment and exonerate the bond because the 90 day period from the original extension had expired and §1305.4 was not followed in procuring the second extension. The trial court denied the surety's motion and the surety appealed. The Court of Appeals held that the second extension was improper and considered whether the surety was estopped to assert that fact as a defense. The key to the case was the fact that neither the surety nor the bail agent asked for the second extension or even knew about it in advance. The police detective acted, at most, for the bounty hunter who was not the actual or apparent agent of the surety for purposes of requesting an extension. The Court held that the surety was correct and the 90 day period within which judgment could be entered had expired because it must be computed from the expiration of the first, legitimate extension, the trial court lacked jurisdiction to grant the second extension, and the surety was not estopped to assert the lack of jurisdiction.

In County of Orange v. Bankers Ins. Co., 2004 WL 625290 (Cal. App. March 30, 2004) the defendant posted two bonds on two separate charges. The same agent provided both bonds, but with different sureties. The defendant failed to appear on the charge for which Bankers was surety on the bond, and the agent requested an extension of the 180 day period to produce the defendant and exonerate the bond. During the continued period, the agent received a copy of the other bond marked exonerated by the court clerk. The agent assumed that meant the defendant had been apprehended and took no further action on the Bankers bond. In fact, exoneration of the other bond was a mistake. In due course, summary judgment was granted on the Bankers bond. The Court of Appeals held that the extended forfeiture period had expired, the trial court no longer had jurisdiction to set aside the forfeiture, and in any case, the mistaken exoneration of the other bond was not a basis to grant relief from forfeiture of Bankers’ bond.

People v. Ranger Ins. Co., 2004 WL 625817 (Cal. App. March 30, 2004) held that a court has no jurisdiction to grant relief from forfeiture once the 180 day period (plus any extensions) has expired. The defendant was incarcerated in another state, and the bail agent called the court clerk and told her of the incarceration, but no motion was filed until after the 180 day period expired. Had a timely motion been made, the surety would have been entitled to have the forfeiture set aside and the bond exonerated. Because a timely motion was not filed, summary judgment on the bond could not be set aside.

In County of Orange v. Continental Heritage Ins. Co., 2004 WL 870847 (Cal. App. April 23, 2004) the surety asserted three reasons why the bond forfeiture should be set aside. The Court rejected each claim because the surety could not establish the factual predicates for its arguments. The surety argued that the court failed to forfeit the bond when the defendant first failed to appear, but the Court held there was sufficient excuse for the initial failure to appear because the defendant was present when the case was called but his attorney was not. Later that day when the case was called again the attorney was present but the defendant was not. The attorney said he spoke to the defendant and told him the matter would be continued. The Court held that this was good cause to continue the matter without forfeiting the bail bond at that time. Second, the surety argued that the warrant was not entered in the National Crime Information System. The evidence, however, showed that it was entered, and in any case the surety failed to prove that the alleged absence of the warrant prevented it from recovering the defendant. Third, the surety claimed it had no evidence it received notice of the forfeiture, but the record included the clerk's sworn declaration of mailing. The court noted that the statute requires only the notice be mailed, and stated "The surety's failure to keep adequate records is not a ground for vacating the forfeiture."

In The People v. Ranger Insurance Co., 2004 WL 885767 (Cal. App. April 14, 2004) the bonds were forfeited in July 1996. At the time the custom was that the court had a 30 day "grace period" in which to rule on a timely motion to extend the 180 day period in which the forfeiture could be set aside. At the surety's request, two extensions were granted after the original period had expired. The defendant did not appear, and summary judgment was eventually granted on the forfeitures.

In 1998 the courts decided there was no grace period and the extension had to be granted before the original 180 day period expired (the 30 day grace period has since been restored by statute). The surety then claimed that the trial court did not have jurisdiction to grant summary judgment on its bonds because the judgment was not entered within 90 days of the expiration of the original 180 day period even though it was within 90 days of the expiration of the erroneously extended period. The trial court rejected the surety's argument, and in a prior decision, the Court of Appeals held that the surety was correct and the judgment invalid but remanded the case for the trial court to determine whether the surety was equitably estopped to assert the invalidity since it was the party which procured the extension.

After remand, the trail court lost the file and the case sat for several years. The surety moved to dismiss for want of prosecution. The Court of Appeals affirmed the trial court's denial of the motion and its finding that the surety was equitably estopped to assert the invalidity of the original summary judgment.

In People v. Seneca Insurance Company, 2004 WL 1167397 (Cal. App. May 26, 2004) the defendant failed to appear for arraignment but no complaint had been filed and the arraignment was continued. He also failed to appear on the new date, and the bond was forfeited. The clerk, however, mailed the bail agent's notice of forfeiture to the wrong address. The state represented that the bail agent was present in court, however, and thus received actual notice of the forfeiture. The appeal decided three issues. First, the court held that the failure to forfeit the bond at the first non-appearance was not a defense because the arraignment could not have gone forward so the defendant's presence was not lawfully required. Second, the court held that the defendant was not entitled to notice of the continued date since it was stated in open court on the first date and he should not profit by his failure to appear. Third, the statute, Cal. Penal Code §1305(b), requires written notice to the bail agent and surety, and there was no dispute that the bail agent did not receive written notice because of the clerk's error in addressing the envelope. Actual, but not written, notice does not satisfy the statutory requirement. The court, therefore, reversed the judgment and held that the surety's motion to vacate the forfeiture and exonerate the bond should have been granted.

In People v. Accredited Surety and Casualty Co., 2004 WL 1211863 (Cal. App. June 3, 2004) the surety timely moved to set aside forfeiture and exonerate the bond and in support relied on an Albanian certificate showing that the defendant died. The government relied on a witness, an alleged expert on the Albanian criminal gang of which the defendant was a member, who testified that in his opinion the death certificate was false. The government also submitted letters from Interpol indicating that the defendant was alive at times after the death certificate indicated he was dead. The Court of Appeals held that the surety had not met its burden to show that the trial court abused its discretion in refusing to set aside the forfeiture, in part because the record did not include a transcript of the expert’s testimony so the Court could not review the trial court’s decision to believe it. [Not published.]

In People v. American Contractors Indemnity Company, 2004 WL 1405744 (Cal. App. June 24, 2004) the surety sought relief from forfeiture because within 185 days of mailing of the notice of forfeiture the defendant voluntarily appeared in the clerk’s office and had a new court date set. When he did not appear for the new date, no new forfeiture was entered. The Court assumed, without deciding, that appearing in the clerk’s office was appearing in court within the meaning of Cal. Penal Code §1305(c)(1). It nevertheless refused to set aside the forfeiture because it found that the record before it on appeal failed to establish the defendant had personally appeared. The surety had the burden of establishing a basis to reverse the trail court, and the factual record was inadequate to do so. [Not published].

County of Los Angeles v. Granite State Insurance Company, 2004 WL 1464892 (Cal. App. June 30, 2004) held that the surety's motion to set aside summary judgment and exonerate the bond should have been granted. The defendant failed to appear on February 13, 2001, and the judge issued a bench warrant and forfeited the bond. Inexplicably, the clerk's minute order said the bond was not forfeited and the bench warrant held until March 6. On March 6 the defendant did not appear and the bench warrant was issued and the bail bond again forfeited. This time the clerk mailed a notice to the surety on March 9 but the notice specified only the March 6 forfeiture. Cal. Penal Code §1305(b) requires that the surety shall be released if notice of forfeiture is not mailed within 30 days after entry of the forfeiture. The Court held that the clerk could not overrule the judge and the forfeiture occurred on February 13 and the March 9 notice, although mailed within 30 days, could not be stretched to encompass the February 13 forfeiture. [Not published].

People v. American Contractors Indemnity Company, 2004 WL 1552061 (Cal. App. July 12, 2004) acknowledged that the trial court erred in entering summary judgment on a bail bond forfeiture before ruling on the surety's timely motion to vacate the forfeiture. The Court of Appeals nevertheless refused to reverse the trial court's denial of the surety's motion to set aside the summary judgment. The Court noted that the motion to vacate was heard and denied on its merits a few days after the summary judgment was granted and held that while the surety could have appealed from the erroneous summary judgment it could not show exceptional circumstances justifying a collateral attack on the judgment via the motion to set it aside. [Not published].

People v. American Contractors Indemnity Co., 16 Cal. Rptr.3d 76, 93 P.3d 1020 (Cal. 2004) is a rare California Supreme Court decision on a bail bond issue. The trial court entered summary judgment against the surety on the 185th day after the notice of forfeiture was mailed. The summary judgment was therefore premature. The surety, however, did not move to set it aside before it became final or file an appeal (either of which would have alerted the government and the court to the error and allowed them to correct it). Instead, the surety waited until it was too late to enter a new summary judgment and then filed a motion to set aside the summary judgment, discharge the forfeiture and exonerate the bond.

If the summary judgment were void, the surety would prevail. The Supreme Court, however, held that the summary judgment was only voidable. That is, the trail court had jurisdiction over the parties and the subject matter but acted in excess of its statutory jurisdiction by entering the judgment prior to expiration of the 185 day appearance period. The Supreme Court held that a voidable judgment must be timely attacked by a motion to set aside before it becomes final or an appeal, and that it is not subject to collateral attack by an untimely motion to set it aside unless special circumstances prevented a timely motion or appeal. Here there were no such special circumstances, so the surety's untimely motion to set aside the erroneous summary judgment was properly denied. [Published].

People v. Lexington National Ins. Co., 2004 WL 1663579 (Cal. App. July 27, 2004) allowed the bail agent to appeal in the surety's name but denied relief from the bail forfeiture. The defendant pled guilty and bail was continued pending sentencing. The court warned the defendant that he faced a substantially longer sentence if he failed to appear and indicated that it wanted the bail agent to agree that the bail continued in force. The bail agent did not agree, and the defendant did not appear for sentencing. The Court of Appeals held that the guilty plea, unlike a conviction after trial, did not require the court to remand the defendant into custody unless it made certain specific findings. The fact that the trial court apparently was confused or had doubts and wanted the bail agent's consent did not change the statutory procedure. The failure of the bail agent to consent to continuation of the bail was not a constructive surrender of the defendant.

People v. Safety National Casualty Co., 2004 WL 1839154 (Cal. App. August 18, 2004) held that the surety was not entitled to have the forfeiture set aside and its bond exonerated. The defendant fled to Korea where a representative of the surety located him and took him to a local police station. The issue was whether the prosecutor elected not to seek extradition, which is one of the elements that Penal Code §1305(g) requires. The prosecutor did not act quickly, but eventually initiated an extradition request. The court held that even if inactivity can equal an election not to seek extradition, the trial court’s finding that the prosecutor did elect to seek extradition was supported by substantial evidence. [Not published].

In People v. National Automobile and Casualty Insurance Company, 18 Cal. Rptr.3d 357 (Cal. App. 2004) the parties wanted to continue a motions hearing. The trial court agreed, but instead of simply continuing the hearing date, it said that the defendant and his counsel need not appear but left the case on the docket for the original date and at that time purported to forfeit the bond but took the forfeiture and a bench warrant under advisement. When the defendant appeared at the agreed-upon continued date, the court purported to vacate the forfeiture and reinstate the bond. After various other proceedings, the defendant failed to appear for sentencing, and the court forfeited the bond. The surety argued that the court had no jurisdiction to forfeit the bond at the sentencing because no notice was given of the purported forfeiture on the original date for the motions hearing and no prior notice was given when the bond was reinstated. The Court of Appeals held that once the defendant was excused from appearing on the date the motion was originally to be heard, his presence was not "lawfully required" within the meaning of Penal Code §1305(a) and therefore the bond could not be forfeited for his failure to appear and therefore the court did not have jurisdiction to declare a forfeiture, and its purported forfeiture was void. Since the bond was not actually forfeited, it could not be reinstated when the defendant appeared for the continued motions hearing. Thus, no notice to the surety was required. In effect, the Court of Appeals disregarded the trial court's procedural errors in purportedly forfeiting and reinstating the bond, and looked at the actual substance of the events which was a simple continuance of the hearing. In County of Los Angeles v. Lexington National Ins. Co., 2004 WL 2404587 (Cal. App. October 28, 2004) the surety obtained the one permitted extension of the 180 day period to surrender the defendant and avoid a summary judgment on the bond forfeiture. For some reason, the court on its own granted another extension and entered summary judgment after expiration of this second extension. The Court of Appeals reversed and remanded for entry of an order exonerating the bond because the summary judgment was not entered within 90 days after the proper extension expired and, therefore, the bond was exonerated by statute. [ Not Published].

People v. Heritage Bail Bonds, 2004 WL 2581126 (Cal. App. November 15, 2004) rejected an attempt by sureties that had prevailed in an earlier appeal to recover their attorneys fees as a part of the "costs" awarded to the prevailing party. [Not published.] In People v. Accredited Surety and Casualty Co., 2004 WL 2650999 (Cal. App. November 22, 2004) the defendant was located and arrested in Kentucky on the California fugitive warrant. He was released there on bail before the California authorities were informed. He was allegedly terminally ill, and rather than seek extradition the district attorney dropped the charges in return for restitution. The surety sought relief from forfeiture. The surety's primary argument was that Penal Code §1305(c)(3) required relief because the defendant was arrested outside of the County in which the charge was pending. The Court held that §1305(c)(3) applies only if the defendant is arrested or surrendered in another California jurisdiction. In the alternative, the surety sought relief under §1305(d), (f) and (g). The Court rejected all three arguments by reading the statute very literally. Subdivision (d) applies if the defendant is dead or permanently unable to appear because of illness, but there was no showing that the "terminal" illness prevented him from appearing. Subdivision (f) applies if the defendant is in custody outside of California and the prosecutor elects not to seek extradition. Here, he had been released before the prosecutor elected not to seek extradition. Subdivision (g) applies if a bail agent temporarily retains the defendant outside of California in the presence of local law enforcement authorities. That did not happen here since the defendant was arrested. The net result is that the surety pays the bail forfeiture even though the prosecutor could have had the defendant back but did not want him. [Not published.]

In People v. Accredited Surety & Casualty Co., 2004 WL 2729593 (Cal. App. December 1, 2004) the defendant was charged with possession with intent to distribute at least 44 pounds of cocaine. He also had a prior drug-related conviction and faced a potential sentence of 25 years. His bond was reduced from $2 million to $20,000 pursuant to a stipulation between the defendant and the state, and without making any of the findings required by Penal Code §1275 for bail reduction. The surety posted the $20,000 bond. After the defendant failed to appear for sentencing, the bond was forfeited. The court affirmed denial of the surety's motion to set aside the forfeiture and exonerate the bond. The court rejected the surety's arguments that the bond was discharged by the failure to follow the procedure mandated by §1275 and the state's failure to inform the surety of the amount of cocaine or the prior drug charge. It appears that the bond reduction was part of a deal for the defendant to a act as an informant. The bail agent stated that he assumed certain things from the fact of the bail reduction. The court held that, "Noncompliance with section 1275 is not a cognizable ground for exoneration nor a defense to forfeiture of a bail bond." The court also held that the state had not misled the surety, and any lack of knowledge was attributable to the bail agent's failure to examine the court record. [Not Published].

People v. American Surety Company, 2004 WL 2729781 (Cal. App. December 1, 2004) held that the record on appeal was inadequate to overcome the presumption that the trial court acted properly in denying exoneration of the bond. The bond covered several separate charges. The defendant pled guilty to the motor vehicle charges and was granted probation, but he was ordered to a diversion program on the drug charge. He was to appear on a date certain to show that he had attended the drug programs. He failed to appear and the bond was forfeited. The record did not establish that he pled guilty to the drug charge or that he was granted probation on it or that the diversion was pursuant to a Penal Code section that would have exonerated the bond. [Not Published]. People v. Aegis Security Insurance Company, 2004 WL 2809520 (Cal. App. December 8, 2004) is an object lesson in the precise use of language. The defendant was convicted and bail set pending sentencing at $1,560,000. The surety, apparently through a program with Capital Bonding Corp., posted the bail by two bonds, one for $1 million and one for $560,000. Separate powers of attorney were attached to each bond. The powers said that the obligation of the company shall not exceed $1 million and had "anti stacking" language which said the bond was void "if more than one such power is attached." The powers also said, "no more than one power from the surety may be used to execute any one bond." The Court pointed out that the surety could have limited the agent's authority to $1 million per case or per defendant but did not. The literal prohibition of the powers was not violated because only one power was used on each bond. The decision has a good survey of California cases on anti stacking provisions and implicitly acknowledges that such provisions will be enforced as written.

The surety also argued that forfeiture should be set aside because the name of the agent was not filled in on the powers. There was no dispute, however, that the agency, Apo's Bail Bonds, was authorized, and the agent signed the power. The court held that there was no requirement that the agent's name also be printed and that the blank did not render the powers too uncertain or misleading to be valid. [Not Published].

People v. Anyway Bail Bonds, 2004 WL 2809343 (Cal. App. December 8, 2004) affirmed denial of the surety's motion to vacate bond forfeiture. The clerk's minutes indicated that the defendant was in court on a date within 180 days of forfeiture (which would have exonerated the bond) but the court found that the entry was clearly an error and the defendant was not actually present. The surety presented no evidence to show the defendant was present other than the minute entry. The court also rejected the surety's argument based on alleged failure to enter the warrant into the national warrant system because the surety made no showing that such a failure impacted its ability to recover the defendant. [Not Published.]

In People v. Amwest Surety Insurance Company, 22 Cal. Rptr.3d 810 (Cal. App. 2004) the defendant did not appear and the clerk’s minutes said the bond was forfeited, but the transcript showed that the court did not forfeit the bond in open court as required by Penal Code §1305(a). The required notices were mailed, the appearance period extended, and summary judgment entered against the surety. No appeal was taken, but more than two years later the surety moved to set aside the judgment and exonerate the bond. The issue in the appeal was whether the judgment was void, in which case it could be collaterally attacked, or merely voidable, in which case it could be appealed but not collaterally attacked after it became final. The Court held that failure to declare the forfeiture in open court meant that the bond was exonerated and the court lost all jurisdiction to later enter the summary judgment, so the judgment was void and subject to collateral attack.

In People v. Ranger Insurance Co., 2005 WL 91408 (Cal. App. January 14, 2005) the defendant failed to appear, a forfeiture was declared, but four days later the bond was reinstated with the surety's consent and the forfeiture vacated. The defendant again failed to appear and the proper procedures were followed to enter judgment against the surety. The surety moved to set aside the judgment on the ground that no notice of the first forfeiture was mailed and so the court lost jurisdiction to enter judgment on the bond. Not surprisingly, the court rejected this argument and held that there was no requirement to mail notice of the first forfeiture since the bond had been reinstated with the surety's consent. [Not published].

People v. Granite State Ins. Co., 2005 WL 236186 (Cal. App. January 25, 2005) affirmed denial of the surety’s motion to vacate a forfeiture. The defendant pled no contest and was ordered to appear for sentencing on July 29. For reasons not contained in the record, the bond itself said he was to appear on July 26. He failed to appear on either date, and the court forfeited the bond for the July 29 non-appearance. The surety argued that the entry on the bond (which the surety alleged was made by the “jailor”) was an order to appear and that when he failed to appear on the 26th and no forfeiture was entered, the court lost jurisdiction to enter the forfeiture on the 29th. The court found that the record did not establish who wrote the 26th on the bond and no appearance was scheduled for that date, therefore not appearing on the 26th was not a breach and no forfeiture could have been entered. [Not published.]

In Overland v. Superior Court, 23 Cal. Rptr.3d 676 (Cal. App. 2005) depositors of cash bail sued for interest earned on the deposits. The plaintiffs relied on U.S. Supreme Court cases involving lawyer trust accounts and argued that the state’s retention of interest earned on the deposits was an unconstitutional taking of their property. The trail court sustained the defendant’s demurrer [dismissed the case] as to pre-exoneration interest. The Court of Appeal held that the deposit was made pursuant to a contract, the contract did not provide for interest, and there was no unlawful taking. The appeal did not address interest earned after entry of the court order exonerating the cash bail but before the deposit was returned.

In People v. Aegis Security Insurance Company, 2005 WL 460039 (Cal. App. February 28, 2005) the defendant failed to appear on February 27, 2003, and the court forfeited the bond in open court. The notice of forfeiture was mailed to the surety on March 7, but it erroneously stated that March 7 was the date of forfeiture. The summary judgment later repeated the erroneous March 7 forfeiture date. The Court of Appeal affirmed the judgment and held that the erroneous date on the notice was just a clerical error, which could be corrected at any time. There was, in fact, no hearing or failure to appear on March 7, and even though the notice had the wrong date, it was mailed within 30 days of the actual forfeiture and contained all the information to which the surety was entitled by statute. The Court also granted the government's motion that it take judicial notice of trial court's docket but refused to take judicial notice of the trial court's case management procedures as described in an affidavit by a deputy clerk.

People v. Ranger Insurance Company, 2005 WL 590650 (Cal. App. March 15, 2005) rejected the surety's appeal on various procedural and evidentiary grounds. The surety argued that the defendant was in federal custody on the date he failed to appear or during the 180 day period following forfeiture. After the notice of forfeiture was mailed, the surety filed a timely motion to vacate forfeiture and exonerate the bond. The trial court was not satisfied with the evidence submitted by the surety and continued the hearing. No one appeared for the surety on the new date, and no reporter's transcript of the proceedings that day was filed as a part of the appeal. The court entered summary judgment. The Court of Appeals did not deny that if the defendant was in federal custody, the bond could have been exonerated, but nevertheless affirmed the judgment. The court thought that the evidence submitted to the trial court, the arguments made to the trail court, and the record on appeal were all deficient and failed to establish that the surety was entitled to relief.

In People v. Aegis Security Insurance Co., 2005 WL 665339 (Cal. App. March 23, 2005) the defendant failed to appear and was arrested three months later in another county. The surety moved to exonerate its bonds under the wrong provision of the Code, subsection (c)(2) of section 1305 instead of subsection (c)(3). The trial court denied the motion without prejudice. Rather than re-file under the correct section, the surety appealed. The Court of Appeal recognized that under the admitted facts the surety was entitled to exoneration, and so reversed the trail court. The Court pointed out that the surety could have avoided the expense of an appeal by filing a corrected motion, and ordered the surety to pay the state's costs on the appeal.

People v. Allegheny Casualty Co., 2005 WL 941473 (Cal. App. April 22, 2005) reversed a judgment of forfeiture because the "judgment" was signed by a clerk rather than by a judge. The Court held that the document was not effective to enter judgment and, since the 90 day period following expiration of the appearance period had expired, it was too late to correct the error and enter a valid judgment. The Court directed that the bond be exonerated on that ground and did not reach the surety's alternative argument that it was entitled to relief because the judgment was entered on the last day of the extended appearance period rather than within 90 days following expiration of the extended appearance period. [Not published].

American Contractors Indemnity Company v. County of Orange, 29 Cal.Rptr.3d 916 (Cal. App. 2005) acknowledged that the certificate of mailing filed by the clerk did not comply with Penal Code §1013a(4) because it did not include the name and address of the persons served. Nevertheless, the Court affirmed the judgment of forfeiture because the bail agent admitted receiving actual notice of the forfeiture.

People v. Aegis Security Insurance Co., 30 Cal. Rptr.3d 686 (Cal. App. 2005) held that summary judgment against the surety was premature because a timely motion to extend the appearance period was pending at the time the summary judgment was entered. The Court nevertheless affirmed the judgment because the surety did not make a timely motion to set it aside or take an appeal from the judgment. Instead, the surety waited until after the appeal period expired and then filed a motion to vacate the judgment on the theory that the trial court did not have jurisdiction to grant it. The Court found that the trial court had jurisdiction over the bond and that such a collateral attack on the judgment was barred by People v. American Contractors Indemnity Co., 93 P.3d 1020 (Cal. 2004). People v. Harco National Insurance Co., 2005 WL 1533133 (Cal. App. June 30, 2005) affirmed the trial court’s refusal to vacate judgment against the surety. During trial, one surety surrendered the defendant and Harco provided a new bond. The defendant immediately absconded, and the court forfeited the bond. Notice of forfeiture was timely mailed, but the notice referred to the wrong date of forfeiture. The surety argued that the court lost jurisdiction to enter judgment on the bond because no notice had been given of the actual forfeiture. The Court of Appeals noted that Penal Code §1305 does not require a notice to give the date of forfeiture, only that it be mailed within 30 days of forfeiture, and held that the discrepancy in the dates was a clerical error, which could be corrected at any time.

In People v. Sirius America Insurance Co., 2005 WL 1533336 (Cal. App. June 30, 2005) the extended appearance period expired on February 1, 2004, a Sunday. The surety filed a motion to vacate the forfeiture, alleging that the defendant was in custody in Mexico but the district attorney refused to request extradition. Since the appearance period expired on a Sunday, a motion filed on Monday, February 2 would have been timely. The surety’s agent stated in an affidavit that he filed the motion at 4:15 p.m. on Monday by placing it in a filing box in the clerk’s office. The clerk’s stamp on the motion, however, showed that it was received on Tuesday, February 3. The trial court found that the motion was untimely, and the Court of Appeals affirmed on the ground that the clerk’s stamp was substantial evidence to support the finding.

People v. Seneca Insurance Company, 2005 WL 1793555 (Cal. App. July 29, 2005) agreed with the surety that the trial court's entry of summary judgment against the surety was in error because at the time the surety's motion to vacate the forfeiture was pending, but held that the surety could not make a collateral attack on the judgment. The surety could have appealed the summary judgment or filed a timely motion to vacate it, but instead the surety waited until after the appeal period expired and moved to set the judgment aside for lack of jurisdiction. Relying on People v. American Contractors Indemnity Co., 93 P.3d 1020 (Cal. 2004) the Court held that the trial court had jurisdiction and the judgment was voidable but not void, and so not subject to collateral attack.

In People v. Ranger Insurance Co., 2005 WL 2037975 (Cal. App. August 25, 2005) the defendant was order to appear in Compton. The case was then transferred to Los Angeles and a notice of the transfer mailed to the defendant. There was no proof the defendant did or did not receive the notice which, in any case had the wrong time for appearance in Los Angeles. He did not appear and the bond was forfeited and a judgment eventually entered. On the surety's appeal, the Court held that there can be no forfeiture unless the defendant is "lawfully required" to appear. Since he was not lawfully required to appear at the place and time the forfeiture was declared, there was no basis for the forfeiture or judgment. The case was remanded to vacate the forfeiture and exonerate the bond.

In People v. Ranger Insurance Co., 2005 WL 2083051 (Cal. App. August 30, 2005) the defendant failed to appear and "[t]he clerk's transcript indicated that the underlying bail bond was also forfeited although the trial court did not formally recite on the record that a forfeiture had occurred." The Court of Appeals held that Penal Code §1305(a) requires the court to declare the forfeiture on the record in open court. Since the trial court failed to comply with the statutory requirement, the bond was not forfeited when the defendant failed to appear and is exonerated by operation of law. Thus, the trial court lost jurisdiction over the bond and its subsequent summary judgment was void. [Not Published].

In People v. Ranger Insurance Co., 2005 WL 2037975 (Cal. App. August 25, 2005) the defendant was order to appear in Compton. The case was then transferred to Los Angeles and a notice of the transfer mailed to the defendant. There was no proof the defendant did or did not receive the notice which, in any case had the wrong time for appearance in Los Angeles. He did not appear and the bond was forfeited and a judgment eventually entered. On the surety's appeal, the Court held that there can be no forfeiture unless the defendant is "lawfully required" to appear. Since he was not lawfully required to appear at the place and time the forfeiture was declared, there was no basis for the forfeiture or judgment. The case was remanded to vacate the forfeiture and exonerate the bond.

In People v. Ranger Insurance Co., 2005 WL 2083051 (Cal. App. August 30, 2005) the defendant failed to appear and "[t]he clerk's transcript indicated that the underlying bail bond was also forfeited although the trial court did not formally recite on the record that a forfeiture had occurred." The Court of Appeals held that Penal Code §1305(a) requires the court to declare the forfeiture on the record in open court. Since the trial court failed to comply with the statutory requirement, the bond was not forfeited when the defendant failed to appear and is exonerated by operation of law. Thus, the trial court lost jurisdiction over the bond and its subsequent summary judgment was void. [Not Published].

County of Los Angeles v. Harco National Ins. Co., 2005 WL 2387349 (Cal. App. September 29, 2005) affirmed summary judgment against the surety. The defendant failed to appear on July 9, but her counsel said she was in custody and the authorities had not transported her to court. The court re-scheduled her appearance to July 15. When she failed to appear on the 15th, the court forfeited the bond and issued a warrant. After several extensions, a timely summary judgment was entered against the surety. On appeal, the court rejected the surety's argument that the court lost jurisdiction to declare a forfeiture when it failed to forfeit the bond on July 9. The trial court had reason to believe the defendant had a sufficient excuse (the representation by her counsel) and was not obligated to verify that she was actually in custody. The issue is not whether she had a sufficient excuse but whether the trail court had reason to believe she had a sufficient excuse. The court also rejected the surety's argument that the defendant did not have notice of the July 15 hearing since no notice was required. [Not published].

County of Los Angeles v. American Contractors Indemnity Co., 2005 WL 2447197 (Cal. App. October 5, 2005) affirmed the trial court's refusal to set aside summary judgment and forfeiture. The bail agent's office moved between the time the bond was issued and the date the defendant failed to appear. The notice of forfeiture was mailed to the address on the bond, but the surety argued that the bail agent had given the court notice of his new address. The County conceded that if the trial court knew of the new address it could not simply mail the notice to the old address even though the old address was on the bond, but the County argued, and the Court agreed, that the surety failed to present competent evidence that the agent had advised the trial court of the new address. The Court also affirmed denial of the surety's motion for reconsideration because it was not based on any evidence that could not have been presented in response to the original motion. [Not Published].

In People v. Accredited Surety and Casualty Co., 2005 WL 2542914 (Cal. App. October 12, 2005) the defendant failed to appear on April 25, 2003, and the court forfeited the bond in open court. The court also, however, continued the case to May 6 and stayed issuance of the bench warrant. The defendant failed to appear on May 6, and the clerk mailed a notice of forfeiture that incorrectly stated the date of forfeiture as May 6. The surety argued that it was never given notice of the April 25 forfeiture and so the eventual summary judgment was invalid and the bond was exonerated. The Court of Appeals reasoned that the notice was not required to state the date of forfeiture, here there was only one forfeiture so there could be no confusion as to what the notice was for, and the notice was mailed within 30 days of the forfeiture as the statute requires. Therefore, the Court concluded the notice was valid and the summary judgment proper. [Not Published].

In Kiperman v. Klenshetyn, 2005 WL 2623663 (Cal. App. October 17, 2005) the surety posted a $250,000 for the defendant's release. Another charge was later added, and the court raised the amount of the bond to $1 million, remanded the defendant into custody and exonerated the bond. The court later reduced the second bond to $250,000, refused to reinstate the first bond, but ordered return of the premium for the first bond. The surety then posted a second $250,000 bond. A few weeks later, after the defendant had been charged with another crime and a warrant issued, the bail agent told the police that the defendant was seeking to flee, and the police arrested him on a bus out of town. The surety then "surrendered" the defendant and sought exoneration of the second bond. The court granted exoneration but directed that the premium be refunded. The bail agent appealed the orders to refund the premiums, and the Court of Appeals reversed. The Court held that as to the first bond there was no basis to even consider return of premium because the surety did not surrender the defendant. The court remanded him in response to the new charge. On the second bond, the surety did surrender the defendant, but it had good cause and under Penal Code §1300 the court may order return of all or part of the premium only if the surrender is without good cause. The Court recognized that the premium is fully earned as soon as the defendant is released without regard to the length of time he is free on the bond, and the only basis to order a refund of premium is under the limited conditions set out in §1300.

In People v. Ranger Insurance Co., 2005 WL 2740879 (Cal. App. October 25, 2005) the defendant failed to appear, the bond was properly forfeited, and notice of the forfeiture was mailed. Subsequently, the clerk erroneously noted in the court record that the bench warrant was withdrawn, but then corrected the error. The surety's agent made substantial attempts to recover the defendant, and the agent submitted an affidavit that he believed that given more time he could locate the defendant. The surety moved to exonerate the bond or, in the alternative, to extend the appearance period for another 180 days. The trail court denied any relief. The Court of Appeals affirmed as to exoneration because the bond was properly forfeited and the clerk's subsequent error was not a ground to set the forfeiture aside. The Court reversed as to extension of the appearance period, however, and held that under the facts it was an abuse of discretion not to grant the surety's motion and allow another 180 days to return the defendant. [Not published.]

In People v. Ranger Insurance Co., 35 Cal. Rptr.3d 253 (Cal. App. 2005) the defendant failed to appear on January 14 and a bench warrant was issued. On January 16 he went to the clerk's office and had his appearance re-set for January 20. He did not appear on the 20th or subsequently. Cal. Penal Code §1305(c)(1) provides that the court must exonerate the bond if the defendant appears in court within 180 days of the bond forfeiture. The issue was whether going to the clerk's office was an appearance "in court." The Court of Appeals held that it was not. The Court stated, "An appearance in the courthouse vestibule, hallway, restroom, or clerk's office is not an appearance in court." The Court also rejected the surety's argument that the clerk had a duty to arrest the defendant pursuant to the warrant.

In People v. Allegheny Casualty Co., 2005 WL 2885771 (Cal. App. November 3, 2005) the defendant fled and was arrested in Canada, but the prosecutor elected not to seek his extradition on one felony charge on which the Canadian court held he was extraditable. The Court held that the bond was exonerated pursuant to Penal Code §1305(f). The Court distinguished cases in which the foreign government refused to extradite or the defendant was not in custody. Here, the prosecutor could have obtained the defendant but made a clear choice not to seek extradition. [Not published.]

In County of San Diego v. Harko National Insurance Co., 2005 WL 3059916 (Cal. App. November 16, 2005) the trail court entered summary judgment against the surety prior to expiration of the 185 day appearance period. The surety (spelled "Harko" throughout the opinion) filed an appeal. The Court of Appeals admitted that the judgment was voidable but nevertheless affirmed it. The Court held that the surety had to bring the procedural defect to the attention of the trial court while there was still time to correct it. The Court stated, "By failing to make an objection or motion in the trial court, Harko failed to preserve the issue for appeal." The Court relied on language from the 2004 American Contractors case, which involved a collateral attack on the judgment not a direct appeal. The Court did reject the County's attempt to have the appeal dismissed as untimely on the argument that the case was a "limited civil case" subject to a 30 day appeal period rather than the normal 60 days. Although the amount involved was less than $25,000, none of the procedural requirements for a limited civil case were present.

People v. Ranger Insurance Co., 2005 WL 3100990 (Cal. App. November 21, 2005) held that the County did not have to return the surety's payment of a judgment even though the judgment was unenforceable when paid. The summary judgment was entered in 1997. After an appeal, a remand, delay when the court misplaced the file, and a second appeal, the judgment was affirmed in April 2004. The surety paid the judgment in September 2004 and then moved to set it aside and recover the payment. The Court admitted that under Penal Code §1306 a summary judgment on a bail bond becomes unenforceable after two years, but pointed out that the County was not trying to enforce the judgment. Unenforceable does not mean void, and just because the County could not enforce the judgment does not mean that the surety is entitled to recover its money.

In People v. Ranger Insurance Co., 2005 WL 3275909 (Cal. App. December 1, 2005) the defendant appeared for trial on Monday, July 7, 2003, but the case was placed on the master trial calendar, which apparently meant it came up the next Monday, July 14. On the 14th the defendant's counsel appeared but not the defendant, and the court ordered forfeiture of the bond. Eventually a summary judgment was entered against the surety and the surety appealed from denial of its motion to set aside the judgment. The issue was whether the court could forfeit the bail when the defendant had not been specifically ordered to appear on the 14th. The Court of Appeals held that his appearance for trial was required by law, and thus the trial court had to forfeit the bond when he failed to appear or lose jurisdiction to do so later. The Court affirmed denial of the surety's motion to se aside the summary judgment. [Not published].

County of Orange v. Ranger Insurance Co., 2005 WL 3416292 (Cal. App. December 13, 2005) affirmed denial of the surety’s motion to set aside forfeiture of its bond. The defendant failed to appear on February 2, 2004, but his attorney had spoken to the defendant’s sister who said the defendant did not realize he needed to appear. The court did not forfeit the bond and re-scheduled the appearance to February 6. When the defendant did not appear on February 6, the court forfeited the bond. The Court held that defense counsel’s explanation was a rational basis for the court to believe that the defendant had a “sufficient excuse” under Penal Code §1305(a) not to appear on February 2, therefore the failure to declare a forfeiture on the 2nd did not deprive the court of jurisdiction to declare a forfeiture on the 6th. The Court also held that there was no need to give the defendant notice to appear on the 6th beyond the direction in court on the 2nd.

County of Los Angeles v. Harco National Insurance Co., 2005 WL 3540339 (Cal.App. December 28, 2005) reversed judgment against the surety and remanded the case for exoneration of the bond. Neither the defendant nor his attorney appeared at the initial arraignment on Friday, September 26, but the attorney sent word that he was in trial and asked that the case be continued. The Judge did not forfeit the bond and continued the case to Monday, September 29. The attorney appeared on the 29th and said he could not locate the defendant. The court then forfeited the bond and eventually entered summary judgment against the surety. The Court of Appeals held that the record did not support an implied finding that the defendant had a sufficient excuse for his failure to appear on September 26. By failing to forfeit the bond on the 26th, the court lost jurisdiction to forfeit it later.

In People v. Lincoln General Insurance Co., 2006 WL 93297 (Cal.App. January 17, 2006) the trial court's minute order said "Bail ordered forfeited" but the court reporter's transcript did not show that the judge actually forfeited the bond. Cal. Penal Code §1305(a) requires the court to declare the forfeiture "in open court." The Court discussed the legislative history of that provision and held that the statute meant what it said and the Judge has to make a statement in open court not simply make an entry in the court record. The Court reversed summary judgment against the surety and ordered exoneration of the bond.

People v. Allegheny Casualty Co., 2006 WL 137424 (Cal.App. January 19, 2006) reversed the trial court and directed that the bond be exonerated because there was no court reporter’s transcript of proceedings when the defendant failed to appear and therefore no proof that the Judge forfeited the bond “in open court” as required by Penal Code §1305(a). The clerk’s minute order said the bond was forfeited, but not that it was forfeited in open court, and there were no affidavits or other proof of events when the case was called.

County of Orange v. Lincoln General Insurance Co., 2006 WL 188451 (Cal.App. January 26, 2006) held that the trial court abused its discretion in denying the surety’s motion for a 180 day extension of the appearance period. The surety submitted affidavits from its investigators describing their extensive efforts to locate the defendant and the information they had obtained. They found an address for him and spoke with the indemnitor on the bond, who agreed to help locate him. They did not guarantee that he would be recovered if the period was extended, but they stated that they believed he could be located. The Court concluded that there was no reasonable justification for not allowing the surety more time to recover the defendant and ordered that the case be remanded and the surety’s motion granted.

People v. Ranger Insurance Co., 38 Cal. Rptr.3d 511 (Cal.App. 2006) held that Penal Code §1305(c)(3) does not require the Court on its own motion to vacate the forfeiture if the defendant is incarcerated in another county within 180 days of the forfeiture, and does not automatically exonerate the bond. On the other hand, the Court also held that there is no time limit for the surety to make a motion to vacate the forfeiture under such circumstances. Thus, unlike subsections (c)(1) and (c)(2) dealing with appearance in court or arrest in the same county, subsection (c)(3) is not self-executing, but it also does not impose a time limit, and the surety does not have to file its motion to exonerate the bond within the 180 day appearance period or within any other time period.

People v. Seneca Insurance Co., 2006 WL 302404 (Cal.App. February 7, 2006) rejected the surety’s argument that the bond was void because it was for an amount less than the court had set as bail. The Court granted bail in the amount of $250,000, but the clerk mistakenly recited the bail as $100,000. The surety posted the bond in the lower amount and the defendant was released. After he failed to appear the bond was properly forfeited and judgment entered against the surety. The Court refused to set the judgment aside. In People v. Zavala, 2006 WL 411544 (Cal.App. February 23, 2006) the trial court refused a second extension of the 180 day period. The surety's motion was timely filed, but the trail court had entered a premature summary judgment and thought that deprived it of jurisdiction to extend the period. The trial court also, almost as an aside, stated that even if it had jurisdiction the surety had not shown good cause for the extension. The Court of Appeals, and the State, agreed that the trial court was in error on the jurisdictional issue because the summary judgment was premature, but the Court nevertheless affirmed because the trial court did not abuse its discretion in making the alternate finding that the surety's actions to locate the defendant were not sufficient to constitute good cause for an additional extension. [Not Published].

In People v. Aegis Security Insurance Co., 2006 WL 459275 (Cal.App. February 27, 2006) the defendant twice failed to appear and twice was subsequently arrested. The surety argued that these arrests exonerated the bond. The first arrest was on an immigration charge, and the Court held that it did not exonerate the bond because the defendant was not in custody on the charge for which the bond was given. The second arrest was on the correct charge, but the trial court withdrew the warrant and reinstated the bond. It had the right to do so only if the bail did not surrender the defendant and the bail was notified of the reinstatement. There was no dispute that the bail did not surrender the defendant, but the record did not establish whether the surety was notified. There was no evidence of notice to the surety, but the State argued that the surety had the burden to prove notice was not given. The Court of Appeals remanded the case for the trial court to determine whether notice was given.

People v. Accredited Surety and Casualty Co., Inc., 40 Cal.Rptr.3d 892 (Cal.App. 2006) held that the trial court abused its discretion in refusing to extend the 180 day appearance period. Pursuant to Penal Code §1305.4, the surety timely moved to extend the time to vacate forfeiture of the bond and submitted an affidavit of the bail agent describing attempts to recover the defendant. The trial court denied the motion. The Court of Appeals discussed the factors to be considered and concluded, "The good cause showing under section 1305.4 is a low threshold for the movant. If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion." Since the defendant was arrested within the 180 day extension period that the surety should have been granted, the Court directed exoneration of the bond.

In People v. Ranger Insurance Co., 2006 WL 979247 (Cal.App. April 14, 2006) the bail agent filed a timely motion to extend the 180 day appearance period. The court scheduled a hearing within 30 days. The motion was supported by a detailed affidavit, and the State neither filed an opposition nor appeared at the hearing. Prior to the hearing, however, the defendant was incarcerated in another county, and at the hearing the surety presented a letter showing the incarceration and that a hold had been placed against the defendant. The court exonerated the bond without first extending the appearance period. The State later moved to set aside the order exonerating the bond on the ground that the original 180 day appearance period had expired, no extension was granted, and so the court lacked jurisdiction to exonerate the bond. The court agreed, set aside its exoneration order and entered summary judgment against the surety. The Court of Appeals reversed the trial court and reinstated the exoneration order. The proper procedure would have been to extend the appearance period and then exonerate the bond, but since on the record it would have been an abuse of discretion to refuse the extend the appearance period the Court deemed the extension to have been granted. The trial court did not lack jurisdiction over the bond, and reconsideration of its order exonerating the bond was error.

In County of Orange v. Ranger Insurance Co., 2006 WL 1330337 (Cal.App. May 16, 2006) the defendant was charged on a fugitive warrant from another state. He failed to appear and the proper procedures were followed to forfeit the bond and enter summary judgment. The surety moved to set aside the summary judgment because the bond form used was not for a fugitive charge. That is, the bond form was an ordinary appearance bond rather than a fugitive bond. The Court noted that the bond was conditioned on the defendant's failure to appear, which is what happened, and that the statute on fugitive warrants does not call for a particular form. The Court affirmed the trial court's denial of the surety's motion. [Not published].

People v. Ranger Insurance Co., 2006 WL 1672885 (Cal. App. June 19, 2006) affirmed the trial court’s refusal to extend the initial 180 day appearance period. The evidence submitted by the surety showed efforts to recover the defendant and some possibility of success if given more time, but not extensive efforts or any great likelihood of success. The Court reasoned that the decision was within the discretion of the trial court and that discretion was not abused because “Reasonable minds could differ as to this issue . . . .” [Not published].

In County of Orange v. Lexington National Insurance Corporation, 45 Cal.Rptr.3d 543 (Cal.App. 2006) the bond was issued with a proper power of attorney. Two months later, the surety terminated the agent’s authority and sent notice of the termination to the Department of Insurance. A month after the agent was terminated, the defendant failed to appear and the Judge declared the bond forfeited. The clerk did not send notice of the forfeiture to the surety, and the surety did not learn of the forfeiture by any other means. Two days later, the defendant appeared, the former agent consented on the surety’s behalf to resumption of the bond, and the court set aside the forfeiture and reinstated the bond. Over the next year the defendant appeared 23 times, but eventually he again failed to appear, the court forfeited the bond and the clerk mailed a copy of the forfeiture to the surety.

The surety obtained an extension of the 180 day appearance period but was unable to recover the defendant. It then moved to exonerate the bond because the clerk failed to mail notice of the first forfeiture. The trial court denied relief and entered summary judgment. On appeal the Court held that Penal Code §1305(b) requires that the surety be released if the clerk fails to mail notice of forfeiture within 30 days after entry of the forfeiture. The Court distinguished cases in which the surety received actual notice even though the clerk made a mistake such as if the notice was mailed to the wrong party but forwarded to the surety. In this case the surety was entitled to notice of the forfeiture and to decide for itself whether to reassume the bond or surrender the defendant. It was deprived of that opportunity. The Court rejected the County’s argument that vacating the forfeiture when the defendant appeared two days later obviated the need for the notice. The Penal Code requires notice of all forfeitures, not just notice of forfeitures that have not been vacated within the 30 day mailing period. The Court thought that the agent’s authority to consent to reinstatement of the bond was not relevant to the case because the statute required notice of the forfeiture whether the bond was reinstated or not. The Court stated, “Simply put, absent notice within the required period, the trial court lost jurisdiction to enter summary judgment on the bond.”

In People v. Ranger Insurance Co., 46 Cal.Rptr.3d 448 (Cal.App. 2006) the defendant failed to appear but was promptly arrested on the charge in another county. The surety, however, did not move to exonerate the bond, and after the 185 day appearance period expired, the court entered summary judgment against the surety and denied the surety’s motion to vacate the summary judgment and exonerate the bond. The Court of Appeals held that in contrast to subsections (c)(1) and (c)(2) of Penal Code §1305, under subsection (c)(3) if the defendant is arrested in the underlying case outside of the county where the case is located, the trial court is not required to act on its own motion to exonerate the bond, and the bond is not automatically exonerated. Fortunately, the Court also held that the surety did not have to move to exonerate the bond within the appearance period. The trial court had jurisdiction to grant the surety’s motion to vacate the summary judgment and exonerate the bond even though it was filed more than 185 days after mailing of the notice of forfeiture and should have done so pursuant to §1305(c)(3). The purpose of bail had been served, and the county should not receive a windfall. The Court reversed the summary judgment against the surety.

In Liberty Bail Bonds, Inc. v. Garamendi, 46 Cal.Rptr.3d 541 (Cal.App. 2006) the Insurance Department suspended the licenses of Liberty Bail Bonds, Inc and Adnan Yousef when they were charged with criminal violations. Cal. Insurance Code §1748.5 did not require any pre-suspension hearing, and none was provided. The Court affirmed suspension of the individual but held that §1748.5 applied only to individuals and therefore could not be used to suspend the license of Liberty Bail Bonds.

In People v. Safety National Casualty Co., 2006 WL 2699211 (Cal.App. September 20, 2006) the Court held that Penal Code §1306(f) barred enforcement of summary judgments after the passage of two years even though there were post-judgment appellate proceedings during the two year period. Enforcement of the judgments was never stayed while the surety appealed denial of its motions to set aside the judgments, and the State did not initiate enforcement proceedings to collect on the judgments. The Court rejected the State’s argument that the surety’s request to stay the disqualification procedures under Penal Code §1308 estopped it from now invoking the two year limitation of §1306(f). The Court enjoined enforcement of the summary judgments but expressed no opinion on whether the surety could be disqualified from writing bail in California pursuant to Penal Code §1308 for failure to pay the unenforceable judgments.

People v. Ranger Insurance Co., 2006 WL 2884934 (Cal.App. October 12, 2006) set aside judgment on a bail bond for release of the defendant pending appeal and exonerated the surety because the court did not declare the bond forfeited at the first court date after the conviction was affirmed and the defendant failed to surrender to serve his sentence. The Court reasoned that once the Court of Appeals issued the remittitur following affirmance, the defendant’s obligation to surrender was self-executing and there was no requirement that a definite date be set for him to appear. Over two years after the conviction was affirmed, the defendant had not surrendered and the trial court scheduled a hearing. The lawyers appeared but not the defendant. There was no excuse offered for his non-appearance, although it also was not clear he had been given notice, and the court did not declare the bond forfeited. Instead, it continued the case for two weeks to allow the public defender to try to locate him. When he still did not appear at the continued hearing, the court forfeited the bond. The Court of Appeals reversed because the defendant’s failure to surrender within a reasonable time was a breach, and at the first hearing thereafter the court had an opportunity and obligation to forfeit the bond. By failing to do so, it lost jurisdiction to forfeit the bond two weeks later. [Published.] In County of Los Angeles v. Ranger Insurance Company, 2006 WL 3060077 (Cal.App. October 30, 2006) the bail agent’s assistant took a timely motion to extend the period to produce the defendant to the court and tried to file it, but the clerk erroneously refused to accept the motion and told the assistant that summary judgment had already been entered. By the time the bail agent returned from an out of town trip and learned what had happened, the time to request the extension had expired. The surety moved to vacate summary judgment because the clerk’s actions made it impossible for the surety to secure additional time to recover the defendant. The trial court denied the motion, and the Court of Appeal affirmed, because the assistant could have asked to speak to a supervisor, called the bail agent for instructions, or otherwise acted to overcome the error of the clerk. The clerk did not make it “impossible” to comply with the statute. [Not published]. In County of Los Angeles v. Harco National Insurance Co., 2006 WL 3095870 (Cal.App. November 2, 2006) the defendant failed to appear, the court ordered forfeiture of the $1 million bail bond, and the clerk mailed notice of the forfeiture. The surety timely moved for extension of the 180 day appearance period. The defendant was arrested in another state before the court ruled on the motion, but the parties apparently did not realize he had been located. The court denied the motion to extend the appearance period and entered summary judgment on the bond. No appeal was taken from the summary judgment, but after the appeal period expired, the surety moved to set aside the judgment. The trial court denied the motion, and the surety appealed. The Court of Appeal dismissed the appeal because the judgment was final and not subject to collateral attack via a motion to set it aside. The surety’s only remedy was to raise the alleged error in refusing to extend the appearance period by a timely appeal of the summary judgment. In County of Los Angeles v. Ranger Insurance Co., 2006 WL 3334413 (Cal.App. November 17, 2006) the trial court denied the surety’s motion for an extension of the 180 day appearance period. The surety appealed from the eventual summary judgment. The Court found that the surety demonstrated diligent efforts to locate the defendant but not a reasonable likelihood of capture if granted an extension. The trial court did not abuse its discretion in denying extension of the 180 day period, and its judgment forfeiting the bond was affirmed. [Not published.]

People v. Ranger Insurance Co., 2006 WL 3377625 (Cal.App. November 22, 2006) held that “within 15 days from the date of arraignment” in Penal Code §1305(a) means within 15 days from the original date set for arraignment. The defendant was released on bond and ordered to appear on January 22, 2004. The police department twice mailed notices re-scheduling the arraignment, and the defendant appeared as directed on March 25, waived arraignment, and pled not guilty. She later failed to appear and the bond was forfeited. Penal Code §1305(a) provides that the court shall not have jurisdiction to forfeit the bond and the bail shall be released if no complaint is filed “within 15 days from the date of arraignment.”

The surety argued that jurisdiction to forfeit the bond was lost when no complaint had been filed on February 6, 2004 (15 days from the original arraignment date set when the defendant was released). The State argued that the complaint was filed on March 18, before the final arraignment date, and so complied with the statute. The Court held that the police department notices continuing the date did not change the “date of arraignment” for purposes of compliance with the statute, and jurisdiction to forfeit the bond was lost when no complaint has been filed by February 6. The decision suggests a different result if the parties had appeared and the court had continued the arraignment date.

People v. Seneca Insurance Co., 2006 WL 3742988 (Cal.App. December 21, 2006) reversed the trial court and remanded the case for exoneration of the bond. After the defendant failed to appear, the surety discovered that he was in protective custody as a witness for the District Attorney in another case and that the District Attorney had induced him to return to the United States by a guaranty that he would not be arrested on any prior charge. In the appeal, the state agreed that under these circumstances the bond should have been exonerated.

In People v. Lexington National Insurance Co., 54 Cal.Rptr.3d 900 (Cal.App. 2007) the defendant appeared for arraignment without an attorney. The prosecutor said the people wanted to seek remand, and the Judge told the defendant to remain in the courtroom to be interviewed by the public defender’s office for possible representation. The defendant left the courtroom and fled. The surety argued that he had been returned to custody, and thus the bond was exonerated, when the court ordered him to remain in the courtroom. The Court disagreed and held that he was never remanded to the custody of the Sheriff or otherwise taken into custody. The Judge told him to remain as a predicate to determining whether he should be taken back into custody, not as a decision to turn him over to the Sheriff.

People v. Grachian, 2007 WL 602870 (Cal.App. February 28, 2007) was an appeal by the sister of the defendant (and presumably indemnitor of the surety) from a judgment forfeiting the bond. The sister argued that the defendant was in custody in Armenia and would return to California as soon as he was able. She provided various unsworn documents in Armenian with alleged English translations in support of her argument that the 180 day appearance period should have been extended. The Court found that there was no properly supported factual basis to question the trial court’s denial of the extension and so affirmed the judgment of forfeiture.

In People v. Safety National Casualty Corp., 2007 WL 901753 (Cal.App. March 27, 2007) the defendant was placed on probation and was supposed to perform community service in lieu of a fine. She failed to appear to show she had performed the community service, and the court issued a bench warrant. She was arrested, and the surety posted a bond for her release. She failed to appear again, and the bond was forfeited, but she appeared several days later, the bail agent consented to reinstatement of the bond, and the court continued her on probation and ordered her to appear and show she had enrolled in a community service program. She again failed to appear, and the court forfeited the bond. The surety sought to set the forfeiture aside because the bail agent did not receive notice of the forfeiture, and the court denied relief.

On appeal the court did not reach the notice issue because it agreed with the surety that the trial court lost jurisdiction to forfeit the bond when it reinstated the probation. The fact that the bail agent consented on the surety’s behalf did not change the fact that the court had no jurisdiction. The Court stated, “Although Post did not appear on July 5, she did appear on July 12. At the July 12 hearing, the court continued Post on probation when it ordered her to appear on July 19 to provide proof of enrollment in the volunteer program. By returning Post to probation, the bail was exonerated by operation of law. Consequently, the trial court’s order reinstating bail and its pronouncement of forfeiture of bail when Post failed to appear at the next scheduled hearing were void acts, as there was no obligation in existence that could be reinstated or forfeited.” Since this defect was jurisdictional, the surety could raise it for the first time on appeal. [Not published]. People v. Allegheny Casualty Co., 2007 WL 1965244 (Cal. July 9, 2007) reversed the Court of Appeal decision reported at 2006 WL 137424 (Cal.App. January 19, 2006) and held that in the absence of a record showing that the forfeiture was, or was not, declared in open court, the presumption that judicial proceedings are properly performed will control. The bond was forfeited and judgment entered against the surety. Two years later, the surety moved to set aside the judgment. California Penal Code §1305(a) requires that the forfeiture be declared in open court. There was no transcript of proceedings, and the court clerk’s minutes did not show that the forfeiture was, or was not, declared in open court. The trial court denied the surety’s motion, but the Court of Appeal reversed.

The California Supreme Court held that §1305(a) requires only that the forfeiture to be declared in open court not that the transcript or clerk’s minutes reflect that fact. If the record is silent, the Court rejected an analogy to cases dealing with continuances without forfeiting the bond, which are required to show on the record the excuse for the defendant’s nonappearance, and instead looked to Evidence Code §664 establishing a presumption that official duties have been regularly performed. Since Penal Code §1305(a) requires the forfeiture to be declared in open court, if the record is silent the presumption is that the Judge made such a declaration.

In People v. Ranger Insurance Co., 59 Cal.Rptr.3d 128 (Cal.App. 2007) the surety made a timely motion to extend the 180 day appearance period. The court denied the extension and entered summary judgment against the surety. The surety appealed denial of its motion, but it relied primarily on its actions in locating the defendant in Mexico after expiration of the 180 day period and the fact that the District Attorney declined to seek extradition. The Court characterized the surety’s efforts during the 180 day period as minimal and affirmed both denial of its extension motion and the summary judgment. The court held that to justify an extension of the appearance period, the surety must establish diligent attempts during the period, not after its expiration. The surety could not rely on events after expiration of the appearance period to justify its motion to vacate forfeiture of the bond. In addition, while there was some evidence that the defendant was located in Mexico by the surety’s agent, no law enforcement authority identified the defendant as required by Penal Code §1305(g).

In People v. American Contractors Indemnity Co., 2007 WL 1683823 (Cal.App. June 12, 2007) the defendant failed to appear because he was in custody on new charges in another county. The bail agent located the defendant, still incarcerated in the other county, before the 180 day appearance period expired, but he did nothing to seek exoneration of the bond, seek extension of the appearance period, toll the running of the appearance period, or inform the prosecutor or the court of the defendant’s location. When the appearance period expired, the court entered summary judgment to forfeit the bond. Within six months of the judgment, the surety moved to set it aside and exonerate the bond. The trial court granted the surety relief, but the Court of Appeals reversed. The surety could not rely on the general civil section on relief from judgments, Code of Civil Procedure §473, because that section does not apply to bail, which is governed by its own very specific statutes. The Court rejected the surety’s alternative argument that Penal Code §1305(c)(3) permitted relief with no time limit because it applied only if the defendant were re-arrested in another county on the same charges. Here, he was arrested on new charges. The Court thought that the surety had ample opportunity to obtain relief in compliance with the applicable statutes and held that the surety would have to bear the consequences of its own inaction.

In County of Los Angeles v. American Contractors Indemnity Co., 61 Cal.Rptr.3d 367 (Cal.App. 2007) the defendant failed to appear and the court entered a forfeiture. The surety filed a timely motion to vacate the forfeiture and exonerate the bond pursuant to Cal. Penal Code §1305(g) because its agent detained the defendant in Mexico and took him before a police official, but the Los Angeles prosecutor elected not to seek extradition. The trial court denied the surety’s motion because it thought the documents submitted were hearsay. The Court of Appeals reversed and directed exoneration of the bond. The surety submitted an affidavit from a Zone Coordinator of the Police of the State of Guerrero together with a photograph of the defendant and a copy of his California drivers license. The County objected that the affidavit said it was signed under penalty of perjury but did not add “under the laws of the State of California” and was not authenticated by a U.S. counselor official or a Mexican Judge. The Court held that hearsay was not a proper objection because the affidavit was not offered to prove the truth of the statements but rather to show compliance with §1305(g). The Court stated that the Legislature “undoubtedly knew requiring a bail agent in a foreign country to comply with the kind of technicalities cited by the County would result in few if any bailjumpers ever being returned to California to face trial.” The Court also rejected the County’s objection to the bail agent’s statement that the prosecutor declined to extradite the defendant and pointed out that the County never contested the allegation or asserted that it would extradite the defendant.

People v. Allegheny Casualty Co., 161 P.3d 198 (Cal. 2007) reversed the Court of Appeal decision reported at 2006 WL 137424 (Cal.App. January 19, 2006) and held that in the absence of a record showing that the forfeiture was, or was not, declared in open court, the presumption that judicial proceedings are properly performed will control. The bond was forfeited and judgment entered against the surety. Two years later, the surety moved to set aside the judgment. California Penal Code §1305(a) requires that the forfeiture be declared in open court. There was no transcript of proceedings, and the court clerk’s minutes did not show that the forfeiture was, or was not, declared in open court. The trial court denied the surety’s motion, but the Court of Appeal reversed.

The California Supreme Court held that §1305(a) requires only that the forfeiture to be declared in open court not that the transcript or clerk’s minutes reflect that fact. If the record is silent, the Court rejected an analogy to cases dealing with continuances without forfeiting the bond, which are required to show on the record the excuse for the defendant’s nonappearance, and instead looked to Evidence Code §664 establishing a presumption that official duties have been regularly performed. Since Penal Code §1305(a) requires the forfeiture to be declared in open court, if the record is silent the presumption is that the Judge made such a declaration.

In County of Los Angeles v. Continental Heritage Insurance Co., 2007 WL 2153441 (Cal.App. July 27, 2007) the defendant failed to appear, and in due course summary judgment was entered against the surety. Two years later, the surety moved to set the judgment aside because the court lost jurisdiction over the bond when the defendant did not appear at an earlier hearing and no forfeiture was entered.

There were two co-defendants in the case, and the earlier hearing involved only the other defendant’s mental competency to stand trial. The Court agreed that under Penal Code §1305(a)(4) the court must immediately forfeit the bond if the defendant fails to appear without a sufficient excuse when he or she is lawfully required to be in court, but in this case there was no requirement that the defendant be present for her co-defendant’s competency hearing. Therefore, there was no reason to forfeit her bond for nonappearance at the earlier hearing and no bar to forfeiting it later when she failed to appear for trial.

In People v. Ranger Insurance Co., 2007 WL 2164928 (Cal.App. July 30, 2007) the defendant failed to appear on July 13, 2004, and the bond was forfeited. The surety moved to set the forfeiture aside because the defendant failed to appear on May 17 and July 12, 2004, and the court did not declare forfeitures on either date. The Court of Appeal agreed that if the defendant failed to appear without an excuse on a prior occasion there was no jurisdiction to declare the forfeiture on July 13, and the forfeiture would be set aside.

The State argued that the defendant was present on May 17. The clerk’s minutes were ambiguous, but an affidavit from the district attorney stated that her practice if a defendant did not appear was to note certain things in the case file, and the absence of such notes indicated to her the defendant was present. The Court held that evidence formed a reasonable basis for the trial court to conclude that the defendant was present on May 17.

On July 12, however, she unquestionably did not appear, and no facts were offered to suggest that there may have been an excuse. The trial court stated that she was often late on prior occasions and continued the case for one day. The Court of Appeal held as a matter of law that a record of lateness or excused absences cannot form the basis for a continuance. There was no rational basis for a finding that there may have been an excuse for the defendant’s failure to appear on July 12, and the trial court abused its discretion in not granting the surety’s motion to set aside the forfeiture. The Court vacated the forfeiture and directed that the bond be exonerated.

In People v. Lincoln National Insurance Co., 2007 WL 2258284 (Cal.App. August 8, 2007) the defendant failed to appear, the bond was forfeited, and notice was mailed to the surety. The 185 day appearance period expired on May 26, 2005. In due course a summary judgment was entered against the surety. The defendant, however, was in the custody of the California Department of Corrections during the appearance period, and upon the State’s motion the trial court entered on order on May 26, 2005, that she be returned for arraignment in the criminal case in which the bond was issued. She was returned, and the charges were dismissed by the prosecutor. She was then returned to the Department of Corrections.

The surety moved to set aside summary judgment and exonerate the bond. The State opposed the motion. The State argued that the surety’s motion had not been filed within the 185 day appearance period, and thus the court lacked jurisdiction to set aside the judgment. The trial court granted the surety’s motion, and the State appealed. The Court of Appeal made an extensive review of procedure under Cal. Penal Code §1305 and concluded that the trial court’s order on the last day of the appearance period amounted to a return of the defendant to custody. The Court held that the surety’s motion did not have to be filed within the appearance period if the defendant was returned to custody in the case within the period. The Court affirmed the trial court’s order setting the judgment aside and exonerating the bond. [Not Published].

In People v. International Fidelity Insurance Co., 2007 WL 2484097 (Cal.App. September 5, 2007) the defendant failed to appear, and the bail agent diligently, but unsuccessfully, searched for him. The surety timely moved to extend the 180 day appearance period and submitted a detailed affidavit describing the agent’s recovery efforts. The trial court denied the extension motion and eventually entered summary judgment on the bond. The surety appealed. The issue in the case was the trial court’s belief that good cause to extend the appearance period had not been demonstrated because there was an insufficient showing of likelihood of success if the extension were granted. The Court of Appeal thought that the facts of record showed a series of dead ends and no reason to think that there were other efforts the bail agent could make that would be successful. The Court stated, “we continue to believe that a showing of a reasonable likelihood of recapture is an important circumstance to be considered in determining good cause for an extension. Having the inquiry be prospective as well as retrospective serves the statute’s policy of returning fleeing defendants to custody. . . . Although the good cause showing under section 1305.4 is low, it is not non-existent.” [Not Published].

People v. Bankers Insurance Co., 2007 WL 2793118 (Cal.App. September 27, 2007) reversed the trial court and directed that summary judgment against the surety be vacated. The defendant fled to Mexico. The surety located him there and asked the District Attorney’s office several times whether it would seek extradition. The District Attorney refused to say until the defendant was actually in custody. The surety’s agents brought the defendant before a law enforcement official in Mexico, fingerprinted and photographed the defendant, and had the law enforcement official execute an affidavit in compliance with Cal. Penal Code §1305(g). While the defendant was in custody, the surety attempted to contact various people in the District Attorney’s office and left messages. The District Attorney made no response, and the defendant was released. Shortly before expiration of the 185 day appearance period, the surety moved to vacate the forfeiture and exonerate the bond. The trial court denied the motion and eventually entered summary judgment against the surety. The surety appealed denial of its motion to vacate. The State argued that the affidavit executed by the law enforcement official was technically deficient because it did not say it was executed under the law of California. The Court followed County of Los Angeles v. American Contractors Indemnity Co., 61 Cal.Rptr.3d 367 (Cal.App. 2007) and rejected that argument. The Court also rejected the State’s argument that the District Attorney did not refuse to extradite the defendant. The Court stated, “The People were informed of Barraza’s location by telephone and fax messages. All that is required to compel the prosecuting agency to make an election whether or not to seek extradition is to be informed of a defendant’s location. That was done here. The silence and inaction of the People is deemed an election not to extradite.” [Not published].

In People v. Ranger Insurance Co., 2007 WL 2876092 (Cal.App. October 4, 2007) the defendant appeared before the master calendar control judge who placed the case on standby for trial. The case was called one week later, but the defendant did not appear. His attorney was present and offered no excuse for the defendant’s absence. The court forfeited the bond, and in due course summary judgment was entered against the surety. On appeal, the surety argued that nothing in the record showed the defendant had been informed that he was obligated to appear on the continued date and, therefore, the bond could not be forfeited when he failed to appear. In California, if a defendant fails to appear when he is required to be present and the court does not forfeit the bond, it loses jurisdiction to do so later. On the other hand, if a defendant’s presence is not required, the bond cannot be forfeited. The Court held that by statute a felony defendant’s presence was required at certain points, including trial for the presentation of evidence. The defendant could not waive his presence at those points. Thus, a defendant’s presence can be required by statute as well as by court order, and the date set for trial, the master trail calendar hearing date, is one of the times his presence is required by law. Therefore, the court properly forfeited the bond when the defendant failed to appear at the continued master trial calendar hearing.

In People v. Lexington National Insurance Co., 69 Cal.Rptr.3d 738 (Cal.App. 2007) the defendant failed to appear for sentencing in a case in Yolo County, and the clerk mailed notice of forfeiture to the surety. The 185 day appearance period expired on December 23, 2005. On or before December 21, the defendant was arrested in another county and a hold placed on him for the Yolo County case. The surety filed its motion to vacate the forfeiture and exonerate the bond on December 27. There was no dispute that the surety was entitled to relief on the merits of its motion, the only issue was whether the motion had to be filed within the 185 day appearance period. The Third District Court of Appeal declined to follow the opinion of the Second District in People v. Ranger Insurance Co., 38 Cal. Rptr.3d 511 (Cal.App. 2006) and held that the trial court did not have jurisdiction to grant relief if a motion was not filed within the appearance period. The Court justified its decision by stating, “Thus, although the defendant was in custody in the underlying case within the statutory period, we cannot ignore the plain language of the statute. If the Legislature finds the failure to vacate the forfeiture and exonerate the bond unjust in such cases, it can amend the statute.”

In People v. International Fidelity Insurance Co., 2007 WL 4499080 (Cal.App. December 24, 2007) the defendant failed to appear for sentencing and judgment was entered against the surety. A recovery agent located the defendant in another state and sought help from local law enforcement officials in apprehending him. The local law enforcement personnel reported that the warrant in the NCIC said “no extradition outside of California” but they did not refuse to help the recovery agent. In the meantime, however, the recovery agent lost track of the defendant, who was driving with the recovery agent following him. The surety sought relief under Cal. Penal Code §980, which provides that the court shall exonerate the bond if the appropriate agency fails to enter the warrant in the NCIC system and the court finds that failure prevented the surety from recovering the defendant. The surety argued that the “no extradition” condition was tantamount to not entering the warrant into the system. The Court did not reach this “creative argument” because it held that the record did not show the alleged defect in the warrant prevented arrest of the fugitive. The Court interpreted the record, an affidavit from the recovery agent, as establishing that the local law enforcement officials were willing to help in spite of the no extradition condition on the warrant.

People v. Bankers Insurance Co., 2008 WL 458669 (Cal.App. February 21, 2008) reversed a judgment against the surety. The defendant failed to appear and the clerk noted in the minute entries that the bail bond was forfeited, but the transcript showed that the court did not actually declare the forfeiture. The surety twice located the defendant outside of California, but the prosecutor did not seek extradition. The surety moved to set aside the forfeiture and exonerate the bond and appealed the trial court’s denial of its motion. The Court of Appeal held that the trial court lost jurisdiction to forfeit the bond when it failed to order the forfeiture upon the defendant’s initial failure to appear. The forfeiture has to be declared in open court, not by the clerk later noting a forfeiture in the minutes. The Court vacated the judgment and exonerated the bond and, therefore, did not reach the surety’s alternative argument based on failure to extradite the defendant after the surety located him. [Not Published].

In People v. Lexington National Insurance Co., 2008 WL 542171 (Cal.App. February 29, 2008) the defendant was in custody in another county well within the 180 day appearance period, but the Court nevertheless affirmed summary judgment against the surety. The trial court clerk mailed notice of forfeiture to the surety and bail agent at the addresses stated on the bonds. The surety, however, had moved some four months prior to issuance of the bonds. Although not completely clear, it appeared that the surety gave the court notice of its new address, and after the original notices were returned, the clerk mailed another notice of at least one of the forfeitures to the surety at the new address shown on the returned envelope. The bail agent also moved, and he claimed he never received the clerk’s notice, but the surety notified him of the forfeitures.

The Court held that the original notices complied with the statutory requirements. The Court distinguished cases involving a court ignoring a change of address sent after the bond was issued. Here the bond itself contained the surety’s old address, and there was no obligation for the court to look at change of address records that pre-dated the bond. The bail agent received actual notice of the forfeitures, and could not complain that the notice was not sent to his new address. Since the original notices complied with the statute, they started appearance period. The surety filed its motion to vacate the forfeitures shortly after the appearance period expired (and within 185 days of the second notice). The Court followed its own precedent and held that the motion had to be filed within the appearance period in spite of the contrary decision of the Second District Court of Appeal in People v. Ranger Insurance Co. Since the motion was untimely, it was properly denied. [Not Published].

In County of Los Angeles v. Ranger Insurance Co., 2008 WL 2068068 (CalApp. May 16, 2008) the defendant fled to Mexico. The surety’s agent, along with the Mexican police, located him there, but the agent did not obtain an affidavit from a Mexican law enforcement officer. When the agent in Mexico located the defendant, the surety’s agent in California called the District Attorney’s office and asked for an extradition request. The District Attorney’s office refused. The surety moved to set aside summary judgment and exonerate the bond. The trial court denied the surety’s motion, and the surety appealed. The Court of Appeal affirmed the trial court because Penal Code §1305(g) requires that the defendant be detained in the presence of a local law enforcement officer and identified in an affidavit made by that officer. Here, there was no affidavit from a Mexican law enforcement officer, and it was not clear that the defendant had ever been detained in the presence of the Mexican authorities. [Not published].

In People v. Accredited Surety and Casualty Co., Inc., 2008 WL 2266141 (Cal.App. June 4, 2008) the defendant failed to appear and her bond was forfeited. The bail agent found evidence that she was in Costa Rica, and the prosecutor, bail agent and federal authorities were working to extradite her. The trial court granted one extension of the 185 day appearance period. The surety applied for another extension or in the alternative to toll the running of the period. The trial court denied the surety’s request, and the Court of Appeal affirmed. The Court held that only one extension of the appearance period can be granted. Penal Code §1305(e) permits tolling of the appearance period because of temporary disability of the defendant, but here the defendant was alleged to be at liberty in Costa Rica. There was no evidence she was prevented from appearing by illness, insanity or incarceration, therefore there was no basis for tolling the running of the appearance period. [Not Published].

In County of Los Angeles v. Fairmont Specialty Group, 2008 WL 2440442 (Cal.App. June 18, 2008) the defendant posted bail on February 25, and the bond stated on its face that he was to appear on March 3. The Complaint, however, was not filed until March 7, and the court records were silent as to any proceedings on March 3. The defendant appeared for arraignment and throughout the proceedings up to sentencing. When he failed to appear the court declared a forfeiture, and proper notice was given the surety. The trial court denied the surety’s timely motion for extension of the 180 day appearance period, and the surety raised two issues on appeal. First, the surety argued that the bond should have been forfeited when the defendant failed to appear on March 3, and that having failed to declare a forfeiture then the trial court lost the ability to declare one later. The Court rejected the argument because on March 3 the complaint had not been filed so the defendant was not required to appear. The Court also held that the trial court did not abuse its discretion in denying an extension of the appearance period because the surety did not demonstrate either sufficient diligence during the initial period or a sufficient likelihood of success if it was granted an extension.

In People v. Lincoln General Insurance Co., 2008 WL 2690761 (CalApp. July 10, 2008) the defendant failed to appear for his trial readiness conference. His attorney was present but could not explain the defendant’s absence. Nevertheless, at the attorney’s request the court agreed to hold the bench warrant until the preliminary hearing date and did not forfeit the bond. When the defendant failed to appear for the preliminary hearing, the court forfeited the bond. The surety moved for relief because there was no good cause for the defendant’s first failure to appear, and the court had to forfeit the bond at that time. The Court of Appeals agreed and held that the fact that the defense attorney had spoken with the defendant by telephone in the previous week was not good cause for the defendant’s failure to appear. Since the court did not forfeit the bond when the defendant failed to appear for the trial readiness conference, it lost the ability to declare a forfeiture at a later date. [Not published].

In County of Los Angeles v. Fairmont Specialty Group, 2008 WL 2806088 (Cal.App. July 22, 2008) the defendant appeared for a preliminary hearing and pled nolo contendere. The court indicated what his sentence would be, agreed to delay commencement of his jail term and ordered him to appear on a future date. He did not appear, and the court forfeited the bond. The trial court denied the surety’s motion to vacate the forfeiture, and the surety appealed. The issue was whether the defendant had been sentenced or placed on probation at the preliminary hearing, which would have exonerated the bond. The Court reviewed the record of proceedings and concluded, “Where, as here, the court merely indicates its intention regarding sentencing and probation but does not actually pronounce sentencing or grant probation, bail is not exonerated.”

In People v. American Surety Co., 2008 WL 2807228 (Cal.App. July 22, 2008) the defendant was arrested and bond posted. He was directed by the jailor to appear in court on February 19, 2004. There was no record of anything transpiring on February 19, but on February 24 a criminal complaint was filed and he was arraigned on March 4. He appeared as required but at an evidence suppression hearing on April 24, 2006, a representative of the surety attempted to surrender the defendant to the court. The record was not clear what was said or what documents the representative had, but the court continued the matter to April 25 at which time the defendant did not appear. A summary judgment was eventually entered, and the surety appealed.

The surety made three arguments to set aside the judgment. First, the surety claimed that the bond should have been forfeited when the defendant failed to appear on February 19. The Court found that the surety had not carried its burden of showing what happened on February 19, but in any event since the complaint had not yet been filed the bond could not have been forfeited. The case was subject to the 15 day rule of Penal Code §1305, and the complaint was filed within the 15 day period. Second, the surety argued that the bond should have exonerated on April 24 when the bail agent tried to surrender the defendant. The trial court, however, had stated that the representative who appeared had no proof of authority and no certified copy of the bond or surrender certificate and did not express a concern that the defendant was a flight risk. The Court rejected the surety’s argument based on the surety’s failure to comply with the statutory requirements to surrender the defendant. Third, the surety argued that the summary judgment was void because when it was entered there was a pending motion to vacate the forfeiture. The trial court, however, had already denied two motions to vacate the forfeiture. The motion pending when the summary judgment was entered was just an attempt to re-litigate something the court had already decided. Even if it had been an error, however, it would not make the summary judgment void, only voidable, and the summary judgment was properly not set aside because the surety did not follow the rules for surrendering the defendant and exonerating the bond.

County of Los Angeles v. Akseralyan, 2008 WL 2895962 (Cal.App. July 29, 2008) held that the judge’s statement on the record that “bail will be forfeited” met the requirements of Penal Code §1305. The defendant failed to appear, and the judge stated, “He posted a $40,000 bond on the arrest warrant, so bond will be forfeited and a bench warrant will be issued. . . .” The bail agent argued that the statement the bond “will” be forfeited was an indication it would be forfeited at some time in the future not an immediate forfeiture as required by the statute. The Court found that no magic words were necessary and that taken as a whole the statement unequivocally declared the bond forfeited.

In People v. American Contractors Indemnity Co., 2008 WL 2897292 (Cal.App. July 29, 2008) the defendant failed to appear, the court first declared a forfeiture then vacated its order and continued the case. The defendant again failed to appear but the case was continued without any indication in the record that his failure to appear was excused. He appeared on several more court dates but ultimately failed to appear and the bond was forfeited. After one extension of the appearance period, the court denied a further extension and entered summary judgment. On the surety’s appeal, the court did not reach the surety’s claims based on lack of notice after the first, vacated forfeiture or refusal to extend the appearance period because it reversed the judgment and exonerated the bond based on the trial court’s failure to forfeit the bond on the occasion of the second failure to appear. There was no finding of sufficient excuse and nothing in the record to indicate why the defendant failed to appear, therefore the court had to declare a forfeiture in open court or lose jurisdiction to do so at a later date. Since no forfeiture was declared at that time, the later forfeiture was void. [Not Published].

In Amwest Surety Insurance Co. v. Billingslea, 2008 WL 4352599 (Cal.App. September 25, 2008) the defendant failed to appear and a summary judgment was entered against the surety on July 12, 1999. When the surety was placed into liquidation on June 7, 2001, the judgment was still unpaid. The County filed a proof of loss in the Amwest liquidation proceeding, and Amwest demanded indemnity from the bail agent who wrote the bond. There was an arbitration clause in the agreement between Amwest and the agent, and the arbitrator awarded Amwest the amount of the County’s allowed claim plus attorneys fees and costs. Amwest sought to confirm the award, and the agent sought to vacate it. The agent argued that the County’s claim was barred by the two year limitation provision of Penal Code §1306(f) because the proof of claim in the liquidation proceeding was filed more than two years after entry of the summary judgment. The arbitrator disagreed because commencement of the liquidation proceeding within the two year period stayed any enforcement of the judgment and tolled the running of the two year period. The Court of Appeals held that the bail agent had not established any legal basis to set aside the arbitration award, affirmed the judgment for Amwest, and remanded the case to determine the amount of additional appellate attorneys fees to which Amwest was entitled.

In County of Los Angeles v. American Contractors Indemnity Co., 2008 WL 4605908 (Cal.App. October 17, 2008) the defendant failed to appear for a pretrial conference, but the bond apparently had not yet been filed. The court noted in the record that the bond would be forfeited when it was received. The surety’s agent filed the bond almost two months later, and the court entered a minute order forfeiting the bond. Only then did the clerk mail notice of forfeiture to the surety and agent. The court denied the agent’s motion to set aside the forfeiture, and the surety appealed. The County did not contest the appeal, and the Court of Appeals reversed denial of the motion to set aside the forfeiture. The trial court had to declare the bond forfeited in open court as soon as the defendant failed to appear without sufficient excuse. From the record, it appeared that the court failed to make such a declaration, and thus lost jurisdiction to declare a forfeiture later. The record was not entirely clear, however, and the Court noted that in the alternative, if forfeiture was declared in open court at the time of the scheduled pretrial conference, the notice of forfeiture was not mailed within 30 days. That was a separate, independent basis to set aside the forfeiture. In either case, the surety was entitled to relief from the forfeiture. [Not Published].

In People v. International Fidelity Insurance Co., 2008 WL 4681370 (Cal.App. October 23, 2008) the defendant failed to appear on July 27, 2005, because he was home in Naples, Italy with a broken his leg. The court found this to be good cause and continued the hearing to September 20, 2005. He did not appear at the continued hearing, and the court forfeited the bond. Notice was mailed the following day. The surety filed a timely motion to extend the original 185 day appearance period, and the court granted an extension of less than the maximum upon the surety’s representation that it had located the defendant in Naples and was working with an Italian investigator to coordinate his detention. Before the extended appearance period expired, the surety moved to toll the appearance period or extend it because extradition proceedings were under way. The appearance period was extended to September 25, 2006. On September 21 the surety moved to discharge the forfeiture and exonerate the bond because the defendant’s original failure to appear had been without good cause or, in the alternative, to toll the running of the appearance period. The court denied the discharge but agreed to a 180 day tolling. The defendant was not returned to custody, and the court entered summary judgment on May 25, 2007. The surety appealed.

The Court held that the district attorney’s office did not hinder or interfere with the surety’s attempts to recover the defendant. It is the surety’s task, not the prosecutor’s, to return the defendant. The government is not required to take affirmative steps to help the surety, only to refrain from affirmative actions that prevent the surety from performing its obligations. The record did not show any action by the district attorney that hindered the surety. The various delays and failures were attributed to the surety. The Court also rejected the surety’s argument that the appearance period expired on September 21, 2006, and so the extension to September 25 was outside of the court’s jurisdiction and discharged the bond. The Court noted the 5 days because the original notice was mailed and the fact that the first appearance period ended on a Saturday resulted in the next Monday becoming the end date and calculated the end of the extended appearance period as September 25. The surety’s motion filed on September 21 was timely heard and the period extended. The summary judgment was entered well within the permitted 90 days from the end of the adjusted appearance period.

In People v. Fairmont Specialty Group, 2008 WL 4697084 (Cal.App. October 27, 2008) the defendant was released with a notice to appear on October 27. The court clerk rescheduled the appearance to October 31. The defendant failed to appear on October 31, and the court forfeited the bond. The surety obtained one 90 day extension of the appearance period, but the court refused to consider the merits of the surety’s motion for another extension. The Court of Appeals held that the court clerk had the power to reschedule the hearing, the defendant’s appearance was not required on October 27, and the court did not lose jurisdiction by not forfeiting the bond on that date. The trial court’s denial of the surety’s second motion to extend the appearance period, however, was an abuse of discretion because the court did not consider the merits of the request or the facts put forward by the surety to justify the additional extension. The trial court seemed to think that there was time left in the appearance period and that the best way to gain a quick recovery of the defendant was to deny any further extension. The surety’s counsel explained that if the appearance period were not extended there was no reason for the surety to continue looking for the defendant, but the court did not want to hear the facts. The Court of Appeals reversed the judgment and remanded the case for reconsideration of the surety’s motion to extend the appearance period.

In People v. Fairmont Specialty Group, 2008 WL 4907503 (Cal.App. November 17, 2008) the surety obtained a 180 day extension of the appearance period. Before the extended period expired, the surety located the defendant incarcerated in Arizona under his brother’s name. The surety verified by photographs, social security number and date of birth that the person in jail in Arizona was in fact the defendant. The surety moved to toll the running of the extended appearance period based on a “disability” under Penal Code §1305(e) or in the alternative to exonerate the bond because the prosecutor did not seek extradition of the defendant. The trial court denied relief, and the surety appealed. The Court of Appeal rejected the Government’s primary argument that an extension of the appearance period and tolling were mutually exclusive. Given the facts presented and the lower burden of proof to establish a right to tolling, the trial court erred in refusing to toll the period based on the defendant’s continued incarceration during the extended appearance period. The Court affirmed denial of the surety’s alternative exoneration argument because the defendant was not “temporarily detained” by the surety’s agents and, even if incarceration met the temporary detention requirement, the record did not establish that the prosecutor elected not to seek extradition. The Court vacated the summary judgment and remanded the case for further proceedings. [Not Published]. County of Los Angeles v. Fairmont Specialty Group, 2008 WL 4926873 (Cal.App. November 19, 2008) held that a criminal complaint with several different charges all related to the defendant’s arrest for the sale or transportation of marijuana did not increase the surety’s risk and discharge the surety. The Court noted that the bond was conditioned on appearance to answer “any charge” based upon the acts supporting the complaint and that the bond was actually filed after the complaint. The Court also was doubtful of the existence of a common law discharge defense based on acts that increased the surety’s risk. The Court stated, “Fairmont suggests that it has a common law defense to the forfeiture of the bond because the risk was materially increased. We reject this argument. There is no common law defense, and the risk was not increased.” [Not Published].

In People v. Lexington National Insurance Co., 2008 WL 5244275 (Cal.App. December 16, 2008) the defendant failed to appear, the bond was forfeited, and notice mailed to the surety. Seven days later, the defendant appeared before the same judge in another case involving separate facts and charges. The court did not take him into custody on its outstanding bench warrant from the first case. The surety moved to vacate the forfeiture. The trial court denied the motion and entered judgment on the bond. The surety appealed denial of its motion. The Court of Appeals held that Penal Code §1305(c)(1) required the court to vacate forfeiture of the bond if the defendant appeared in court “on the case in which the forfeiture was entered,” but here the appearance was in another case. Therefore, the statute did not require the court to vacate the forfeiture. The Court also found that it was not inequitable to forfeit the bond, and given the volume of criminal cases it would be unrealistic to expect the judge to connect the case before him and the bench warrant issued a week earlier in a separate case. [Not published]. In People v. Fairmont Specialty Group, 2009 WL 33653 (Cal.App. January 7, 2009) the defendant failed to appear without sufficient excuse, and according to the transcript the trial court stated in open court, “Bench warrant forfeited – no. Bench warrant issue. No bail. You can do a letter of reassumption.” The clerk’s minutes said the bond was forfeited, and two days later a notice of forfeiture was mailed to the surety. The trial court refused to set the forfeiture aside, and the surety appealed. The Court of Appeals held that Penal Code §1305(a) required the court to declare the forfeiture in open court so that the surety or agent in attendance would know to commence recovery efforts as promptly as possible. In this case there was a transcript, so the presumption that the court followed proper procedures did not apply, and entering the forfeiture later in the clerk’s minutes was not compliance with the statutory requirement. The trial court’s statement was not equivalent to “bail is forfeited” and did not comply with the statute. Therefore, the court lost jurisdiction to forfeit the bond. The Court of Appeals reversed the trial court and ordered exoneration of the bond. [Not Published].

In People v. American Surety Co., 2009 WL 131995 (Cal.App. January 21, 2009) the defendant failed to appear and the trial court declared the bond forfeited. Later that day, the defendant appeared and the court reinstated the bond. No notices of the forfeiture or the reinstatement were sent to the surety or agent. Several months later, the defendant failed to appear for sentencing, and the court again forfeited the bond and the notices were sent. The court denied the surety’s motion to set aside the forfeiture and exonerate the bond, and the surety appealed. The Court of Appeals held that the failure to give the surety and agent notice of the original forfeiture and reinstatement deprived the court of jurisdiction to forfeit the bond months later. The surety and agent are entitled to notice within 30 days of forfeiture so they can determine how to proceed with respect to the bond. The failure to give notice pursuant to Penal Code §1305(a) deprived them of the opportunity to consider any possible increased risk. [Not Published].

In County of Los Angeles v. International Fidelity Insurance Co., 2009 WL 215147 (Cal.App. January 30, 2009) the defendant failed to appear and the court Commissioner declared the bond forfeited. Summary judgment was eventually entered against the surety, and the surety moved to vacate it and exonerate the bond. The trial court denied the motion, and the surety appealed. The Court rejected the surety’s argument that “court” in Penal Code §1305(a) meant a judge not a commissioner and affirmed denial of the motion. The Court held that bail forfeiture was an ex parte proceeding that commissioners were authorized to perform. The Court noted that Court of Appeals precedent from 1971 had so held, and the Legislature had not seen fit to amend the statute to change that result. [Not Published].

In People v. Bankers Insurance Co., 2009 WL 354200 (Cal.App. February 11, 2009) the defendant failed to appear, and the judge said “we’ll keep the bail bond and issue a warrant.” The clerk’s minutes indicated that the bond was forfeited, and notice was mailed to the surety. The surety eventually moved to set aside the forfeiture because the court lost jurisdiction when it failed to forfeit the bond in open court. The trial court denied the motion, and the surety appealed. The Court of Appeal noted that the statutory procedure had to be strictly followed and that all the statute required was for the judge to say, in open court, “the bond is forfeited.” While other words can be used, an ambiguous statement is insufficient. The majority of the Court of Appeals held that “we’ll keep the bail bond” was not close enough to “the bond is forfeited” and reversed the trial court. The dissenting Justice would have affirmed because “we’ll keep the bail bond” was, in context, not subject to any interpretation other than that the bond was forfeited. [Not published].

In County of Los Angeles v. Lexington National Insurance Co., 2009 WL 446135 (Cal.App. February 24, 2009) the agent located the defendant in Mexico and brought him to a police station to be identified. The surety contacted the prosecutor’s office, but no decision was made to seek, or not to seek, extradition. The 180 day appearance period was extended, but at the end of the extension the court entered judgment against the surety, and the surety appealed, but the surety did not obtain a reporter’s transcript of the court hearing. The Court of Appeal held that without a transcript it could not determine what took place or the basis for the trial court’s ruling, and accordingly could not hold that the trial court erred. The Court affirmed the judgment. [Not published].

In People v. Fairmont Specialty Group, 2009 WL 961525 (Cal.App. April 9, 2009) the surety and agent did not receive notice of the bond’s forfeiture. The clerk certified that the notices had been mailed. Penal Code §1305(b) required that the notices be mailed to the agent and surety at the addresses shown on the bond. The Court held that the evidence was consistent with the clerk mailing the notices and the Postal Service failing to deliver them, and therefore the trail court did not abuse its discretion in denying relief. The Court affirmed the trial court’s denial of the surety’s motion to vacate the forfeiture. [Not Published].

In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., 2009 WL 1039580 (Cal.App. April 20, 2009) the surety’s recovery agent filed a motion to extend the appearance period on the last possible day, but he did not include a declaration or affidavit showing good cause for the extension. He filed such a declaration 24 days later after the defendant had been located in jail in another county. The defendant, however, had been arrested after expiration of the initial appearance period. The Court held that a declaration showing good cause for the extension is a statutorily required part of a motion to extend the appearance period and that the motion in this case was untimely because the declaration was filed after the initial period expired. Since the period was not extended and the defendant was not recovered during the initial period, the Court affirmed the summary judgment against the surety.