Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SJ003355, Edmund W. Clarke, Jr., Judge.
Office of the County Counsel, Ralph L. Rosato, Assistant County Counsel, and Joanne Nielsen, Principal Deputy County Counsel, for Plaintiff and Appellant.
Nunez & Bernstein and E. Alan Nunez for Defendant and Respondent.
KRIEGLER, J.
After a defendant failed to appear as ordered for a hearing, the trial court orally revoked bail, issued a bench warrant, and ordered bail forfeited. The clerk’s minute order contained an error—instead of reflecting the forfeiture of bail, it stated that bail had been exonerated. The bail agent received notice of forfeiture, but after examining the minute order, it relied on the entry that bail had been exonerated and made no attempt to surrender the absconding defendant within the 180-day period of Penal Code section 1305, subdivision (c)(1). We hold the trial court did not abuse its discretion in ruling that the burden for this mistake falls upon the county and, therefore, affirm the order setting aside summary judgment on the bond.
Background
Indiana Lumbermens Mutual Insurance Company (Lumbermens) posted bail bond No. US-789734 in the amount of $120,000 on behalf of Jonathan Branch on April 4, 2008. The Bail Hotline Bail Bonds, located in San Bernardino, was the bail agent.
Branch appeared in court for arraignment on April 23, 2008. After several subsequent hearings, Branch failed to appear as ordered on September 10, 2008. The trial court orally revoked bail, ordered bail forfeited, and issued a bench warrant. The minute order indicated Branch had failed to appear and a bench warrant had issued, but it erroneously stated that bail was exonerated.
A “Clerk’s Notice of Forfeiture of Surety Bond” was mailed to Lumbermens and The Bail “Holtline” on October 10, 2008. The notice stated that on September 10, 2008, bail in the amount of $120,000 had been forfeited. The bond number was incorrectly shown as “US78974.” The notice advised that the obligation to pay the bond would become absolute on the 186th day after mailing the notice, or on the 191st day if the notice were mailed out of state.
On April 22, 2009, after expiration of the 186- and 191- day periods, the minute order of the hearing on September 10, 2008, was corrected nunc pro tunc. The corrected minute order stated that bail was forfeited and deleted the entry that bail had been exonerated.
On April 23, 2009, the clerk of the court sent a written demand on the bond indicating 180 days had elapsed since forfeiture and the mailing of notice of forfeiture. Payment was demanded within 30 days or summary judgment would be entered. On May 28, 2009, the clerk served notice on Lumbermens and The Bail Hotline that summary judgment had been entered and payment was due within 30 days of the mailing of the notice.
The Surety’s Motion to Set Aside Summary Judgment
Lumbermens filed a motion to set aside summary judgment on July 14, 2009, arguing the trial court lacked jurisdiction to enter summary judgment. Lumbermens first argued the trial court had lost jurisdiction over the bond when the clerk of the court failed to mail the bail agent a copy of the notice of forfeiture. According to Lumbermens, the notice of forfeiture had the wrong bond number and the bail agent had no record of receiving the notice. Lumbermens was eventually able to identify the correct defendant and notify the bail agent, but this was after the 30-day period of notice. Sending notice of the wrong bond number did not satisfy the Penal Code section 1305 jurisdictional requirement.
Lumbermens’ second argument was that the bondsman had the right to rely on the trial court record showing the bond was exonerated. The bail agent sent an employee to the court to review the records, who obtained a copy of the minute order which confirmed that bail had been exonerated. Relying on the minute order showing that bail had been exonerated, the bail agent took no steps to locate Branch. The nunc pro tunc correction of the minute order did not occur until April 22, 2009, which was more than 180 days from the mailing of notice of forfeiture. Neither Lumbermens nor The Bail Hotline were given notice of the nunc pro tunc order.
The County’s Opposition to the Motion to Set Aside Summary Judgment
The County’s opposition to the motion to set aside the summary judgment was filed on August 10, 2009. The County argued that notice was sent on October 10, 2008—the 30th day after forfeiture—as required by Penal Code section 1305, subdivision (b). Although the bail agent denied receiving the notice, the County relied on the presumption in Evidence Code section 641 that a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.
The County further argued the trial court’s clerical error did not exonerate the bond, relying on People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192. Finally, the County argued the bail agent’s reliance on the trial court record was unreasonable, as there was one clerical error in the minute order and one missing digit in the notice of forfeiture. The bail agent should have realized the minute order contained a clerical error, as it had notice of the forfeiture at an early date and the interpretation of the bail agent of the document as a whole was unreasonable.
The Trial Court’s Ruling on the Motion
The trial court entertained lengthy oral argument on August 21, 2009. The trial court did not consider the error in the bond number on the notice of forfeiture to be dispositive, but instead focused on the bail agent’s reliance on the trial court record indicating bail had been exonerated. The trial court noted that if the clerk’s records were inconsistent, the bail agent could reasonably rely on the portion that was favorable. The bail agent could not take Branch into custody by ignoring the minute order entry that bail had been exonerated without running the risk of criminal liability if it turned out the bail had been exonerated. The County argued the bail agent did not act quickly to verify the clerk’s minute order, but the trial court pointed out that was of no significance since the order had not been corrected on the date the bail agent inspected the trial court’s records.
The clerk need not state the bond number in the notice of forfeiture. (People v. Legion Ins. Co., supra, 102 Cal.App.4th at p. 1197.)
The trial court ruled that the equities favor the surety and it was reasonable for the bail agent to rely on the trial court’s mistaken entry of exoneration rather than running the risk of attempting to surrender Branch on an exonerated bond. The motion to vacate summary judgment was granted, forfeiture was set aside, and bail was exonerated.
On September 21, 2009, the County filed a notice of appeal from the order granting the motion to set aside the summary judgment.
DISCUSSION
The County contends the trial court satisfied Penal Code section 1305 when it ordered bail forfeited in open court and sent notice of the forfeiture within 30 days. The issues presented are whether the bail agent had a duty to inquire about the accuracy of the minute order when faced with ambiguous information within the minute order which conflicted with the notice of forfeiture, and whether the trial court correctly placed equitable concerns over the statutory requirements of Penal Code section 1305.
Bail Forfeiture
We review an order on a motion to set aside a bail forfeiture under the deferential abuse of discretion standard. (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542; People v. Legion Ins. Co., supra, 102 Cal.App.4th at p. 1195; People v. American Contractors Indemnity (1999) 74 Cal.App.4th 1037, 1043 [“A determination on a motion to set aside a bail forfeiture is discretionary and will not be disturbed on appeal unless an abuse of discretion appears in the record.”].) As the law disfavors forfeitures, the standard of review compels us to protect the surety in order to avoid the harsh result of forfeiture. (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1492; People v. Legion Ins. Co., supra, 102 Cal.App.4th at p. 1195.)
Analysis
We agree with the trial court that statutory notice of forfeiture is not the determinative issue in this case. It is true that the trial court complied with its obligation to declare the forfeiture in open court when Branch failed to appear. (Pen. Code, § 1305, subd. (a).) Notice of forfeiture was mailed to the surety and bail agent on the 30th day after the declaration of forfeiture. (Id., subd. (b).) More than 180 days lapsed from the date of forfeiture until summary judgment was entered. (Id., subd. (c).) Thus, the dispositive issue is not statutory compliance, but whether there are equitable considerations that justified the trial court, in the exercise of its discretion, to set aside the forfeiture.
It has been said that when a statute requires the court to follow a particular procedure or act in a certain way, an act beyond those directives is in excess of jurisdiction. (County of Los Angeles v. Fairmont Specialty Group, supra, 173 Cal.App.4th at p. 542.) This principle rings true in cases in which the surety seeks relief from forfeiture on a statutory basis. (See People v. Lexington National Ins. Co. (2010) 189 Cal.App.4th 1242, 1246-1249 [relief from forfeiture granted under Pen. Code, § 1305, subd. (f), was in excess of jurisdiction as the subdivision was facially inapplicable]; County of Los Angeles v. Fairmont Specialty Group, supra, at p. 544.)
However, there are cases in which statutory requirements for bail forfeiture are satisfied, but equitable considerations compel relief to the surety. For example, in People v. Far West Ins. Co. (2001) 93 Cal.App.4th 791 (Far West), the defendant forfeited bail and was located by an agent of the surety in Georgia. The local police department in California confirmed the existence of a warrant and willingness to extradite, without consulting the local district attorney. The defendant was taken into custody on the warrant in Georgia based on the police department’s assurance, but soon thereafter, the police department advised the Georgia authorities to release the defendant. The trial court denied the surety’s motion to vacate the forfeiture and exonerate bail because Penal Code section 1305, subdivision (g), gives the prosecuting agency (in this instance the local district attorney), not the local police department, the power to elect to extradite. (Far West, supra, 93 Cal.App.4th at pp. 792–794.)
The Court of Appeal in Far West reversed. “Thus, to decide whether the trial court was correct in denying the motion to vacate forfeiture and exonerate the bond, the only question we must resolve is the one on which the trial court rested its ruling—whether the fact that the ‘prosecuting authority, ’... was never advised by the surety, Georgia officers, or the warrants section of the [local police department], that [the fugitive defendant] was in custody and subject to extradition on the California warrant, is fatal to the surety’s motion for relief from the order of forfeiture.” (Far West, supra, 93 Cal.App.4th at p. 796.)
The Far West court held that “the result reached by the trial court on these facts is at odds with the purposes underlying the statutory bail scheme and contrary to the ancient equitable principle that forfeitures are abhorrent.” Instead, “it is preferable to rest the outcome on principles of equity rather than to embrace a result that can fairly be termed ‘absurd.’ [Citation.]” (Far West, supra, 93 Cal.App.4th at p. 796.) The appellate court held that the equities favored the surety, as it was an error “that led to the release of a dangerous felon wanted by [California] authorities on armed robbery charges and the surety having done everything required of it under the statute and bond....” (Id. at pp. 797-798.) The appellate court saw “no need to formulate a broad legal rule illustrated by the facts of this case. It is enough to conclude that under the circumstances shown here—a California fugitive admitted to bail, apprehended and held in custody in another state, is released as a result of errors committed solely by officials of the demanding county government and the surety has done all that is required of it under the terms of the bond—bail is exonerated. [Citations.]” (Id. at p. 798.)
The County argues that the ambiguity in the minute order—including indications Branch had failed to appear and a bench warrant had issued, while also stating bail was exonerated—placed the surety on notice that something was amiss and created a duty to inquire further. This position is contrary to case law holding that the burden of clerical errors is not borne by the surety where there is reasonable reliance. (County of Orange v. Allied Fidelity Ins. Co. (1984) 161 Cal.App.3d 510, 512-513 [surety could rely on clerk’s representation that bond had been exonerated because clerical and ministerial errors were committed by county personnel who mislead the surety as to the status of the bail]; People v. Surety Ins. Co. (1973) 34 Cal.App.3d 444, 447 [“The surety should be able to rely on the entries in the clerk’s minutes... to conclude that it need no longer be concerned to locate and produce its bailee.”].)
Resolution of the issue presented here also turns on the deferential abuse of discretion standard of review. The trial court carefully examined the circumstances in this case and determined the bail agent had been mislead and reliance on the minute order indicating bail had been exonerated was reasonable. The determinations are supported by substantial evidence.
As the trial court reasoned, once the bail agent confirmed that the minute order showed bail had been exonerated, the bail agent was not in a position to arrest and surrender Branch, for doing so could prove to be an unlawful act. The bail agent was entitled to rely on the clerk’s minute order. That the bail agent did, in fact, rely on the minute order is demonstrated by evidence that the bail agent made no attempt to locate and surrender Branch within the 180-day statutory period of Penal Code section 1305.
The nunc pro tunc correction of the error in the minute order was not made until April 22, 2009, after the 180-day period in which the bail agent could have surrendered Branch and avoided summary judgment. Had the trial court corrected the erroneous minute order within 180 days, the surety could have obtained an extension for surrender of up to 180 days. (Pen. Code, § 1305.4.) Under these circumstances, the trial court did not abuse its discretion in setting aside the summary judgment on the bond.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Indiana Lumbermens Mutual Insurance Company.
We concur: TURNER, P. J.ARMSTRONG, J.