Opinion
A157510
04-24-2020
THE PEOPLE, Plaintiff and Respondent, v. BANKERS INSURANCE CO., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. 19-CIV-00928, 17-NF-001463-A)
Bankers Insurance Co. (Bankers), the surety on a bail bond posted by its agent All Pro Bail Bonds (All Pro), appeals an order denying its motion to set aside a forfeiture of the bond. Bankers contends that the court lost jurisdiction under the statutory requirement that the court clerk mail notice of the forfeiture to both the surety and the bail agent, and execute a confirming certificate of mailing. (Pen. Code, § 1305.) The statute provides explicitly that if the clerk fails to mail the notice to the surety, it "shall be released of all obligations under the bond." (§ 1305, subd. (b)(3).) A certificate of mailing appears in the record, but it is unsigned. Bankers submitted evidence that it did not receive the notice, which the People conceded for purposes of the set-aside motion. The trial court, however, denied the motion after, sua sponte, taking judicial notice of a prior motion filed in Bankers's name by its agent, All Pro. The court misread the prior motion as admitting that the clerk had mailed a copy of the notice to Bankers, and that Bankers had received it. Because the prior motion in fact contains no such admission, we will reverse and remand for further proceedings.
All undesignated statutory citations are to the Penal Code.
Statutory Framework
In California, "[a]n insurer shall not execute an undertaking of bail except by and through a person holding a bail license . . . ." (Ins. Code, § 1800.) Thus, "the surety does its business through a licensed [bail] agent." (People v. Ranger Ins. Co. (2003) 110 Cal.App.4th 729, 734.)
The court must declare a bond forfeited if a defendant fails to appear for certain proceedings. (§ 1305, subd. (a).) The statute mandates precise steps for giving notice of such a forfeiture: "(1) . . . the clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety . . . . At the same time, the court shall mail a copy of the forfeiture notice to the bail agent whose name appears on the bond. The clerk shall also execute a certificate of mailing of the forfeiture notice and shall place the certificate in the court's file. . . . [¶] (2) If the surety is an authorized corporate surety, and if the bond plainly displays the mailing address of the corporate surety and the bail agent, then notice of the forfeiture shall be mailed to the surety at that address and to the bail agent, and mailing alone to the surety or the bail agent shall not constitute compliance with this section." (§ 1305, subd. (b), italics added.)
If a clerk fails to satisfy the mailing requirements, the statute dictates the consequences: "(3) The surety . . . shall be released of all obligations under the bond if any of the following conditions apply: [¶] (A) The clerk fails to mail the notice of forfeiture . . . within 30 days after the entry of the forfeiture. [¶] (B) The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond. [¶] (C) The clerk fails to mail a copy of the notice . . . to the bail agent at the address shown on the bond." (§ 1305, subd. (b), italics added.) If the clerk satisfies the mailing requirements, the agent and surety have 180 days to secure the defendant's appearance. If they do so, the court must vacate the forfeiture and exonerate the bond. (§ 1305, subd. (c)(1).)
Factual and Procedural History
In November 2017, All Pro, as Bankers's bail agent, posted a bond of $100,000 on defendant's behalf. The bond identifies Bankers as surety and lists its address in Florida. The bond also bears a stamp showing All Pro's name, address (in Gilroy, California), and license number.
In January 2018, defendant failed to appear and the court ordered the bail forfeited. On January 29, 2018, the clerk filed a Notice of Order Forfeiting Bail, a copy of which is attached to this opinion as Appendix A. It is addressed to Bankers as "Surety Company" and to All Pro as "Bail Agent," at their respective addresses shown on the bond. A printed signature block on the notice reads "Rodina M. Catalano, Court Executive Officer/Clerk [¶] [blank line] [¶] By LAVINIA PREMA [¶] Deputy Court Clerk." This signature block is not signed or initialed.
In the bottom quarter of the page, a clerk's certificate of mailing is printed in smaller type. It states that the person executing the certificate served the notice by placing copies in "envelopes addressed respectively to the persons and addresses as shown in the foregoing [notice], and by placing the envelope[s] for collection and mailing on the date indicated below at Redwood City, California[,] following standard court practices." The next sentence summarizes those practices. Below this text is printed, "DATED: 01/29/2018," and a signature block identical to the one under the notice. This signature block also is not signed or initialed. All Pro admittedly received a copy of the notice of forfeiture. Bankers denies having received a copy.
In July 2018, attorney Mark Vaughn filed a motion pursuant to section 1305.4, which allows the court to extend the 180-day deadline for securing a fugitive defendant's appearance. The caption of the moving papers identifies Vaughn as "Attorney for Moving Party/Real Party in Interest [¶] Bankers Insurance Company." The notice of motion states that "Surety and Real Party in Interest, Bankers Insurance Company, by and through its agent, All-Pro Bail Bonds, will move this Court for an order . . . ." (Italics added.) The signature block identifies Vaughn as "Attorney-in-Fact for Moving Party/Real Party In Interest Bankers Insurance Company."
The memorandum of points and authorities for the extension motion states that "The Notice of Forfeiture was mailed on January 29, 2018. (See Notice of Forfeiture, Attached as Exhibit 'A.')" The memorandum says nothing more about the mailing of the notice; it does not state to whom the motion was mailed or who received it.
The copy of the notice of forfeiture attached as an exhibit to the extension motion bears a "RECEIVED" stamp. The stamp consists solely of the word "RECEIVED"; it does not indicate who placed the stamp on that copy of the notice or where, when, or on behalf of what entity they did so. A copy of this exhibit is attached to this opinion as Appendix B.
After the forfeiture of the bond, the memorandum of points and authorities states, "the case was assigned to the Pre-investigations unit (See Declaration of Pre Investigator Annie Fite, attached as Exhibit 'B'). When this investigation [failed], the Surety employed the services of Investigator Darrell Matos, a duly licensed Bail Enforcement Agent, authorized to conduct investigations in . . . California." Ms. Fite's declaration apparently states that she works for All Pro's Pre-Investigations/Claims Department in California. The memorandum next cites a declaration by Matos, which is on pleading paper captioned "All-Pro Bail Bonds [¶] [Address] [¶] Vista, CA . . . ." Matos identifies himself as "the Investigator contracted by All Pro Bail Bonds," states that he "received this Case from All Pro Bail Bonds PreInvestigations/Claims Department," and refers to the use of information from "All Pro Bail Bonds" in his investigation. Matos never refers to having interacted with any employee of Bankers. Summarizing Matos's declaration, the memorandum states that he has "diligently pursued" defendant and is confident that, "given an extension of time . . . , he will be able to locate defendant and surrender him to . . . the court." On that basis, the motion requested a 180-day extension of time to allow him to do so. The motion was granted, extending the deadline to February 6, 2019.
The actual declaration is missing from the record on appeal.
The next item in the record is a notice to Bankers and All Pro that summary judgment was entered on the bond on February 15, 2019.
In April 2019, attorneys John and Crystal Rorabaugh filed a motion on behalf of Bankers to set aside the summary judgment, discharge the forfeiture, and exonerate the bail. The caption and signature blocks identify them as "Attorney for Defendant Bankers Insurance Co." The memorandum in support of the motion includes this paragraph: "The court file contains a notice of forfeiture with a certificate of mailing signed by the clerk of the court on January 29, 2018 [sic ]. However, the surety [named] in this notice never actually received the Notice of Forfeiture purportedly mailed." Attached as an exhibit was another copy of the notice of forfeiture with its unexecuted certificate of mailing. A copy of this exhibit is attached hereto as Appendix C.
This description is mistaken; the certificate is in fact unsigned. (See Appen. A.)
Unlike the copy of the notice of forfeiture attached to the extension motion filed some eight months earlier by Mr. Vaughn (Appen. B), the copy of the notice attached to the set-aside motion filed by Mr. and Ms. Rorabaugh bears no "RECEIVED" stamp (Appen. C.). (It thus appears that the Rorabaughs obtained the copy attached to the set-aside motion from the court file.)
The set-aside motion does not include a declaration authenticating the exhibits and describing their provenance.
The set-aside motion contends that the court lost jurisdiction of the bond when the clerk failed to mail a copy of the notice of forfeiture to the surety. The moving papers include a declaration by Bridgett Pace, "the Bail Supervisor of Bankers Insurance Company, Surety division, located in St. Petersburg, Florida." She states that her division is "responsible for receiving and opening mail . . . from California Courts"; explains the division's procedures for date-stamping, filing, and making computer records of notices of forfeiture; and adds that they send a monthly list of forfeitures to Bankers's bail agents. Ms. Pace "thoroughly checked [her] files for a notice of forfeiture for [the bond at issue]" and determined that "no notice of forfeiture was received by Bankers," adding that the bond "was not listed as forfeited in our computer records or on our agent reports."
The People opposed the set-aside motion. The opposition accepted for purposes of the motion that Bankers never received the notice of forfeiture, but argued that the certificate of mailing nonetheless established that the clerk mailed the notice to Bankers, and that it did not matter whether Bankers in fact received the notice.
Neither of the Rorabaughs attended the hearing on the motion; attorney Arash Moussavian represented Bankers. At the hearing, the court raised a point it thought "both counsel . . . missed": while the set-aside motion states that Bankers never received the notice of forfeiture, Bankers had previously "filed a motion to toll time by Mark Vaughn, a different attorney, specifically attaching the notice of [forfeiture] saying that they received it." (Italics added.) "I now have a different attorney telling me that Bankers never received it, which is 180 degrees different than [what was said in] getting the extension of time . . . ." (Italics added.)
Asked to explain the perceived discrepancy, Moussavian (who did not have a copy of the extension motion with him) said that he could not, but correctly pointed out that the issue was not raised in the papers. The court then stated that the assertion that Bankers did not receive the notice was "not only . . . wrong [but], until I hear otherwise, I'm going to find that was actually false." After rejecting a second, unrelated argument, the court denied the set-aside motion. Bankers timely filed a notice of appeal.
Later in the hearing, the court issued an oral "OSC" for Mr. Rorabaugh to appear in person "to explain why he and/or [Ms. Pace], who executed the declaration on behalf of Bankers . . . saying [that] they never received a notice of forfeiture, should not be held in contempt pursuant to Code of Civil Procedure section 1209(a)(4) and (a)(9)." Rorabaugh later appeared and pointed out that the court had not followed the procedure to initiate a contempt proceeding based on an alleged indirect contempt, which the court acknowledged. (See Code Civ. Proc., § 1211.) The court apparently did not pursue the "contempt" inquiry further.
Discussion
While the parties have submitted lengthy briefs raising many issues, most need not be addressed. As set forth above, section 1305 makes plain that the court clerk must mail copies of the notice to both the surety and the bail agent, and that failure to mail the notice to either entity triggers an exoneration. Moreover, a long line of precedent requires the court to construe the statute to avoid a forfeiture. (People v. Accredited Surety & Casualty Co. (2018) 26 Cal.App.5th 913, 917 [" ' " 'Certain fixed legal principles guide us in the construction of bail statutes. The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citation.] Thus, [bail statutes] must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture.' " ' "].)
Here, the certificate of mailing appended to the notice of forfeiture is not signed or initialed. (Appen. A.) To satisfy the statutory directive to "execute a certificate of mailing" (§ 1305, subd. (a)(1)), the clerk must comply with Code of Civil Procedure section 1013a, which defines such a certificate. (American Contractors Indemnity Co. v. County of Orange (2005) 130 Cal.App.4th 579, 583.) That section describes acts to performed by "the clerk or deputy clerk signing the certificate." (Code Civ. Proc., § 1013a, subd. (4), italics added.) The People do not suggest that the clerk may validly "execute a certificate of mailing" without signing or initialing it.
The People's only argument in this regard is that, while the clerk "may not have properly executed the certificate of mailing," Bankers forfeited the issue by not raising it below. We could disregard this argument, which appears only in a footnote. However, in all events, "entry of summary judgment based on a void forfeiture order is a jurisdictional defect that may be raised for the first time on appeal." (People v. Safety National Casualty Corp. (2007) 150 Cal.App.4th 11, 17, and authorities cited.) Also, we may consider questions of law raised for the first time on appeal on undisputed facts. (People v. Lexington National Ins. Corp. (2010) 181 Cal.App.4th 1485, 1491-1492.) The fact that the certificate of mailing is unsigned is undisputed.
Other than the unexecuted certificate, the record contains no evidence that the clerk mailed the notice to Bankers, as distinct from All Pro. Contrary to the trial court's assumption, which neither party suggested, nothing in the extension motion acknowledges that Bankers received a copy of the notice. While the moving papers for that motion refer at times to "the Surety" and to acts performed by "the Surety," it is clear in context that these references are to acts, like the filing of the motion itself, performed on behalf of the Florida-based surety by its California agent All Pro—not acts performed by Bankers's employees. For example, while the memorandum states that "the Surety employed the services of Investigator Darrell Matos," the California-based Matos states unequivocally in his declaration that All Pro hired him. Nothing in the extension motion can be read to imply that Bankers actually received or knew of the forfeiture notice, or that a Bankers employee directed the filing of the motion.
The caption also identifies Mark Vaughn as "Attorney for Moving Party/Real Party in Interest Bankers," and the signature block identifies him as "Attorney-in-Fact for Moving Party/Real Party In Interest Bankers." While use of the terms "attorney-in-fact" and "real party in interest" is questionable, the terms do imply, in light of the notice of motion, that Vaughn was an attorney for All Pro, which, as an agent of Bankers, caused the motion to be filed in the name of Bankers as a so-called "real party in interest," that is, the party whose rights are ultimately at issue. --------
In a fallback argument, the People suggest that we can disregard the plain language of section 1305 if Bankers had "actual notice" of the forfeiture. The premise of the argument fails because there is no evidence that the surety, as distinguished from its agent, had actual knowledge or notice of the forfeiture notice. Moreover, the case cited by the People, and the prior case on which that cited decision relies, are clearly distinguishable and do not stand for the proposition that the failure to send the forfeiture notice to the surety can be disregarded. In People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1381, 1385, a clerk sent a notice of forfeiture to the surety at an obsolete address, but the notice was promptly forwarded to the surety at its current address. In People v. American Bankers Ins. Co. (1991) 227 Cal.App.3d 1289, 1292, overruled on another ground in People v. National Automobile & Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 126, a clerk had inadvertently put a bail agent's copy of a forfeiture notice in an envelope addressed to a different bail agent. The second bail agent also represented the same surety and promptly forwarded the notice to the first, who admittedly received it. (Ibid.) Neither these nor any other case brought to our attention stands for the proposition that failure to mail notice to the surety itself can be disregarded when there is no evidence that the surety received actual notice of the forfeiture.
The record before us therefore does not support the summary judgment entered against Bankers. However, the absence of a signature on the clerk's certificate of mailing apparently was not observed in the trial court and was not the basis for the court's decision. It may well be that other evidence can be presented that the clerk did mail the notice of forfeiture to the surety despite her failure to sign the certificate of mailing. At this juncture, we neither assume the sufficiency of any such evidence the People may present, nor prejudge the People's contention that a surety's failure to receive a notice that was in fact mailed does not require exoneration of the bond.
Disposition
The order denying Bankers Insurance Co.'s motion to set aside the summary judgment, discharge the forfeiture, and exonerate the bond is reversed, and the matter is remanded for further proceedings. Bankers shall recover its costs on appeal.
POLLAK, P. J. WE CONCUR: STREETER, J.
TUCHER, J.
Appendix A
(Notice of Forfeiture from Court file)
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Appendix B
(Exhibit A to Extension Motion)
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Appendix C
(Exhibit E to Set-Aside Motion)
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