APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. Affirmed. (Super. Ct. No. SWF018750).
The opinion of the court was delivered by: McKINSTER J.
CERTIFIED FOR PUBLICATION
Defendant and appellant Safety National Casualty Corporation (the surety) appeals the trial court's denial of its motion to set aside forfeiture of a bail bond and to exonerate bail. The surety contends that the trial court lost jurisdiction to declare the forfeiture because it contends that the clerk failed to give notice of the forfeiture as required. For the reasons that follow, we reject the surety's contention and affirm the court's order.
FACTS AND PROCEDURAL HISTORY
On November 2, 2006, The surety posted a $100,000 bond for the release of defendant Herminio Barba. Barba made a number of court appearances after his release on bail. On November 9, 2007, Barba failed to appear in court and the court declared the bond forfeited. A notice of forfeiture was mailed on November 13, 2007, well within 30 days after the declaration of forfeiture.
On May 8, 2008, the surety filed a notice of motion to vacate the order of forfeiture, on the ground that it did not receive notice of the forfeiture. In support of its motion, the surety presented an affidavit of Bill Martin, as the surety's attorney in fact (and notarized by J.A. Jasperson), that "Safety National Casualty Corporation, through normal business operations, has not, to our knowledge, received a forfeiture for [the] defendant/bond." County counsel opposed the motion, noting that it had received notice of the forfeiture in a timely manner, and that the surety's showing of non-receipt was "minimal." The court made a factual finding that the surety was notified of the forfeiture, and denied the motion. The court granted additional time (to November 17, 2008) to produce the defendant, pursuant to Penal Code section 1305.4, and noted that the bench warrant for Barba remained outstanding.
On September 4, 2008, the surety moved for reconsideration of its motion to vacate the forfeiture and exonerate the bail. Included in the reconsideration motion was the surety's request for judicial notice, including the bail bond, the minute order reciting Barba's failure to appear and the court's declaration of forfeiture, and the notice of forfeiture: "On November 13, 2007, the clerk mailed a notice of forfeiture to the parties. The certificate of mailing was not signed under penalty of perjury." The surety argued that, because the certificate of mailing included on the notice of forfeiture was not signed under penalty of perjury, the certificate was of no evidentiary value, and could not be used to substantiate or raise a presumption that the notice of forfeiture had in fact been mailed. In the absence of timely mailing a proper notice of forfeiture, the court lost jurisdiction to declare the bond forfeit. In addition, the surety now had its bond technician, Jacki Jasperson, prepare a new declaration of non-receipt, describing the office procedures for all mail received from California courts, including verification and entry of all California bail forfeiture notices into the surety's computer system, but the nonexistence of any such computer entry for Barba's bond. Therefore, averred Jasperson, the surety "never received notice of forfeiture for [the Barba] bail bond . . . ."
The county opposed the motion for reconsideration, noting that Code of Civil Procedure section 1008*fn1 permits a motion for reconsideration only upon a showing of new or different facts, circumstances or law. The county urged that the surety "fails to offer any new or different facts, circumstances or law to support its Motion to Reconsider. The surety argued in its First Motion that it did not receive the Notice and therefore the court should vacate the forfeiture of bail." In support of its motion for reconsideration, the surety "offers the same failed argument and a declaration in support thereof . . . . Contrary to the surety's assertion, the fact that the declaration in support of the Motion to Reconsider is from a bond technician whereas the affidavit in support of the First Motion is from a different individual is not tantamount to a new or different fact, circumstance, or law in violation of § 1008."
The surety responded that the trial court should reconsider its earlier decision because the alleged deficiencies in the clerk's certificate of mailing created a jurisdictional defect, which may be raised at any time.
The trial court denied the motion to reconsider, and the surety has filed the present appeal.
"'An order denying a motion to set aside a forfeiture is appealable. [Citations.]' [Citation.] 'The determination of a motion to set aside a bail forfeiture is in the discretion of the trial court and should not be disturbed on appeal unless an abuse of discretion appears in the record. [Citation.]' [Citation.]" ...