Opinion
C042340.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. ALISTAR INSURANCE COMPANY, Defendant and Appellant.
Defendant Alistar Insurance Company appeals from an order refusing to discharge an order of forfeiture and set aside the summary judgment. Defendant contends the undertaking on bail was void because the single bond was posted for three separate criminal cases and bond was exonerated when there was no actual notice of forfeiture to the surety and bail agent. We disagree and affirm.
STATEMENT OF FACTS
On September 19, 2001, Aladdin Bail Bonds (Aladdin), acting as an agent for Alistar Insurance Company (Alistar), posted a $60,000 bond to secure the release of Cuong Duy Phan (Phan) on three separate criminal cases. The three cases were coordinated and set for hearing on the same date. Phan failed to appear at the scheduled October 15, 2001, hearing, and the bond was forfeited. Notice of forfeiture was sent to Alistar and Aladdin on October 16, 2001. On April 29, 2002, a summary judgment was entered.
DISCUSSION
I.
Alistar contends the undertaking on the bail was void because a single bond was posted for three separate criminal cases. We do not disagree with Alistars basic premise that "the bond in a criminal proceeding is purely statutory and must conform to the statute and the order of the court." (Merced County v. Shaffer (1919) 40 Cal.App. 163, 167.) There is no statute which prohibits combining a defendants multiple criminal cases under a single bond. However, in this case, there were separate court orders admitting defendant to bail, not one of which was in the amount of $60,000.[] Accordingly, the single bail bond did not conform to the order of the court setting bail. That determination does not end our inquiry or resolve this dispute.
Here, the surety is attempting to prevent the entry of summary judgment on the bond by arguing it was of no force because a single bond was issued, rather than three separate bonds, for three separate criminal cases. This is a similar type of argument to that made and rejected in Western Surety Co. v. Municipal Court (1937) 20 Cal.App.2d 442 and County of Los Angeles v. Surety Ins. Co. (1985) 164 Cal.App.3d 1221.
"Defects and irregularities, if any, in the proceedings preliminary to the taking of bail are considered as waived by the surety when it assumes its obligations as such at the time of the execution of the bond." (Western Surety, supra, 20 Cal.App.2d 442, 443; County of Los Angeles v. Surety Ins. Co., supra, 164 Cal.App.3d 1221, 1225.) Similarly, here, we find the surety waived the irregularity of having the three bonds combined into a single bond when it "assume[d] its obligations . . . at the time of execution of the bond."
Furthermore, even if we were to find that the issue was not waived, defendant would not be entitled to relief. "[G]enerally speaking, `a contract made in violation of a regulatory statute is void, . . . [however,] `"the rule is not an inflexible one to be applied in its fullest rigor under any and all circumstances."" (Arya Group, Inc. v. Cher (2000) 77 Cal.App.4th 610, 614, citing Asdourian v. Araj (1985) 38 Cal.3d 276, 291.) Here, the alleged illegality does not stem from the violation of a regulatory statute but from failing to comply precisely with the specific terms of a court order. Given the nature of the "violation" in this case, we find the cases addressing whether to enforce an allegedly illegal contract persuasive.
"In compelling cases, illegal contracts will be enforced in order to `avoid unjust enrichment and a disproportionately harsh penalty upon the plaintiff. [Citation.]" (Asdourian v. Araj, supra, 38 Cal.3d 276, 292.) "Where the public cannot be protected because the transaction has already been completed, no serious moral turpitude is involved, defendant is the one guilty of the `greatest moral fault, and defendant would be unjustly enriched at the expense of plaintiff if the rule were applied, the general rule should not be applied. [Citation.]" (Southfield v. Barrett (1970) 13 Cal.App.3d 290, 294.)
In this case, to the extent there was a violation of the law, it was a technical requirement of the formation of a bond, not one which involves serious moral turpitude. The policy of protecting the public from the future consequences of the contract will not be furthered because the transaction has been completed; that is, the County released defendant from custody in accordance with the terms of the bond. Neither party has any greater moral fault than the other, the County has a policy requiring the bonds to be combined and the surety acquiesced in the policy and accepted it. Finally, Alistar would be unjustly enriched at the expense of the County were it not required to fulfill its obligations under the contract. (See Southfield v. Barrett, supra, 13 Cal.App.3d 290, 294; Asdourian v. Araj, supra, 38 Cal.3d 276, 292-294.)
II.
Alistar next contends the bond was exonerated when there was no actual notice of forfeiture to the surety and the bail agent. This issue was raised before the trial court in Alistars motion to set aside the summary judgment and exonerate the bail. The trial court denied the motion, apparently finding actual notice was given.
In support of its claim, Alistar submitted the declarations of Albert Garibaldi, the officer manager for Aladdin and J. Patrick Beaty, the claims manager for Alistar. Each averred that neither Aladdin nor Alistar had received actual notice of the forfeiture. The County proffered the proofs of service which were attached to the notices, as well as the declaration of Gladys Varela, the superior court clerk who mailed the notices and her computer entries that notice was sent. Defendants argument revolves around the relative weight of the evidence presented to the trial court on the issue of actual notice.
However, as a reviewing court, we do not have the power to reweigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable inferences which may be drawn therefrom. (Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1294.) "[W]e presume in favor of the judgment, considering the evidence in the light most favorable to respondent, giving respondent the benefit of every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
The proofs of service, the clerks detailed declaration of having mailed the notices and the computer printouts reflecting that she mailed the notices created a presumption that defendant received the notices. (Evid. Code, § 641; Code of Civ. Proc., § 1013a, subd. (4).) Defendant met this presumption with contradictory evidence. Accordingly, the presumption disappeared. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.) But, "[t]he disappearance of the presumption does not mean there is insufficient evidence to support the trial courts finding." (Ibid.)
Once the presumption is gone from the case, "`"[t]he trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the [notice] was received."" (Craig v. Brown & Root, supra, 84 Cal.App.4th 416, 422.) The same circumstances and evidence which gave rise to the presumption may appropriately lead the court to conclude that notice was received. (Ibid.) Thus, the proofs of service, the clerks declaration, and the computer printouts were substantial evidence supporting the trial courts determination that notice was received by the surety and the bail agent.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J. and KOLKEY, J. --------------- Notes: The record on appeal contains evidence that in case No. SM213471A, bail was set at $20,000. There is no evidence as to what amounts the bail was set in the other two cases.