California Court of Appeals, First District, Third Division
Superior Court County No. CIV513412, of San Mateo Hon. Joseph E. Bergeron, Judge.
Counsel for Appellant: Accredited Surety and Casualty Company, Inc. E. Alan Nunez
Counsel for Respondent: County of San Mateo John C. Beiers, County Counsel Peter K. Finck, Deputy County Counsel
Appellant Accredited Surety and Casualty Company, Inc. (Surety) appeals from the denial of its motion to set aside summary judgment, discharge forfeiture and exonerate bail. Surety posted a bail bond for the release from custody of one Ji Liang Cheng who failed to appear for sentencing, causing bail to be forfeited. When Cheng was not produced within the extended statutory time period within which Surety could move for relief from the forfeiture, the court entered summary judgment against Surety. Surety then moved to set aside the summary judgment, discharge the forfeiture and exonerate the bail, which the court denied. Surety’s appeal from that order challenges the sufficiency of the notice of forfeiture served upon it, and the timeliness of the summary judgment. We conclude that the notice to Surety, a professional surety, although easily capable of improvement, satisfied due process requirements, and that although the summary judgment was entered beyond the statutory deadline, Surety is estopped to complain because it acquiesced in the scheduling error leading to the late entry of the summary judgment.
On January 13, 2010, through a bail bond agent Surety posted a $100, 000 bail bond for the release of Cheng, who was facing drug and drug-related charges. Following his conviction upon a plea of nolo contendere, Cheng failed to appear for sentencing on January 11, 2011, as had been ordered, and his bail was declared forfeited. On January 18, the court clerk mailed to Surety and to its agent a “Notice of Order Forfeiting Bail” which read in full: “You are hereby notified that Bail Bond No. A100-00449105, in the sum of $100, 000 was forfeited on 1/11/11. Defendant having failed to appear for Probation Report & Sentencing.”
On July 22, 2011, the 185th day after the notice of forfeiture was mailed, Surety filed a motion pursuant to Penal Code section 1305.4 to extend the time period within which it could move for relief from the forfeiture pursuant to section 1305. The People filed a non-opposition to this motion which stated in part: “The People believe that the moving party in this case has complied with Penal Code § 1305.4 by showing good cause for granting the extension. It is respectfully suggested that the statutory deadline should be extended in this matter for 180 days from the date of the hearing on this motion, i.e., until January 31, 2012.” On August 5 the court entered an order purporting to extend the deadline to January 31, 2012.
On April 26, 2012, Cheng not having appeared and no motion for relief from the forfeiture having been sought or granted, summary judgment was entered on the forfeiture and notice of its entry was mailed to Surety the following day. On June 22, 2012, Surety filed a motion to set aside the summary judgment, discharge the forfeiture and exonerate bail on the ground that the summary judgment was filed beyond the period authorized by section 1306, subdivision (c) and therefore was void. The trial court denied this motion and Surety thereafter timely filed its notice of appeal.
I. The Notice of Forfeiture Was Not Constitutionally Inadequate
Although Surety did not make this contention in the trial court, it argues on appeal that the court lost jurisdiction to enter the summary judgment because the notice of forfeiture was inadequate to satisfy due process standards.
Section 1305, subdivision (b) provides in part: “If the amount of the bond... exceeds four hundred dollars ($400), the clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety....” Proper notice in compliance with this provision is a necessary predicate to collection on the bond. The subdivision goes on to provide that the surety shall be released of all obligations under the bond if “[t]he clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture” or mails the notice to the wrong address. (§ 1305, subd. (b)(1)-(3).)
Surety does not dispute that the notice mailed to it on January 18, 2011 complied with the literal terms of the statute. However, it contends that the notice was ineffective because it failed to recite the statutory provisions under which it was issued and under which relief from forfeiture may be obtained, including the time limitation for seeking such relief. Based on principles established by the United States Supreme Court (e.g., Memphis Light, Gas & Water Division v. Craft (1978) 436 U.S. 1 (Craft)), and two California Court of Appeal bail bond forfeiture decisions (People v. Swink (1984) 150 Cal.App.3d 1076 (Swink); Minor v. Municipal Court (1990) 219 Cal.App.3d 1541 (Minor)), Surety argues that due process ...