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The People v. Western Insurance Company

January 30, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
WESTERN INSURANCE COMPANY, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Lia R. Martin, Judge. (Los Angeles County Super. Ct. No. SJ3700)

The opinion of the court was delivered by: Manella, J.

CERTIFIED FOR PUBLICATION

Reversed, with instructions.

INTRODUCTION

Western Insurance Company (Western), the corporate surety on a $200,000 bail bond, appeals from an order denying its motion to vacate forfeiture and exonerate bail. Western contends the bail bond should be exonerated because the trial court materially increased the surety's risk beyond the terms of the bond agreement when the court permitted the defendant and principal, Chester Vidal Dizon, to leave the United States for the Philippines without Western's knowledge or consent. We agree, and accordingly, reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On August 10, 2010, the Los Angeles County District Attorney filed a felony complaint charging Dizon with two counts of committing a lewd act upon a child, in violation of Penal Code section 288, subdivision (a).*fn1 Dizon was ordered held to answer, and bail was set at $200,000.

On August 11, 2010, Western, through its agent, Two Jinn, Inc., doing business as Aladdin Bail Bonds, posted the $200,000 bond. The bond agreement between Western and Dizon provided:

"Now the Western Insurance Company, a Nevada Corporation, hereby undertakes that the above-named defendant [Dizon] will appear in the above-named court on the date above set forth to answer any charges in any accusatory pleading based upon the acts supporting the complaint filed against him/her and as duly authorized amendments thereof, in whatever court it may be filed and prosecuted, and will at all times hold him/herself amenable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment or grant of probation; or if he/she fails to perform either of these conditions, that the Western Insurance Company, a Nevada Corporation, will pay the people of the said State the sum of ***Two Hundred Thousand Dollars And No Cents***."*fn2

On November 19, 2010, Dizon requested permission to travel to the Philippines to attend his mother's funeral. The prosecutor did not oppose the request. The court granted Dizon permission to leave the country on November 21 and return November 29; it further ordered Dizon to appear for trial on November 30. Western was not informed that Dizon had requested permission to travel to the Philippines, or that the trial court had granted him permission to leave the United States.

On November 30, 2010, Dizon failed to appear for trial. Dizon's counsel represented that Dizon was ill and hospitalized in the Philippines. The trial court issued a bench warrant, and ordered the bail forfeited. Notice of forfeiture of the bail bond was mailed to Western, informing it that unless the order of forfeiture was set aside within 185 days, summary judgment would be entered pursuant to section 1306.

On June 1, 2011, Western moved to extend the 185-day bail bond forfeiture period to allow Western more time to locate and apprehend Dizon. The motion was granted, and the forfeiture period was extended to December 20, 2011.

On December 20, 2011, Western filed a motion to vacate forfeiture and exonerate the bail bond. Western contended, among other grounds, that the trial court had substantially increased Western's risk by not informing it of Dizon's request to travel to the Philippines, or of the court order granting him permission to travel outside the United States. Western noted that it was not provided an opportunity to surrender Dizon before he travelled to the Philippines, and that the trial court had made it practically impossible for Western to perform its contractual obligations under the bond agreement.

In support of its motion, Western attached a declaration of Douglas Creer, an investigator retained by Western. Creer stated he was a retired Department of Homeland Security special agent, with over 28 years of experience in law enforcement. Creer stated he had retained a local private investigator in the Philippines to assist him in locating Dizon. However, the two men had been unsuccessful, because (1) "[u]nlike similar fugitives [who] have fled to the Philippines and who generally lacked a support system, [Dizon] has considerable family ties and friends that have been providing support to [him]"; (2) the investigation had been significantly hindered due to bad weather and poor roads in areas the defendant had been known to frequent; and (3) the local enforcement officers in those areas ...


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