California Court of Appeals, First District, First Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Sonoma County Superior Court, No. SCR-611964 Honorable Jamie E. Thistlethwaite.
[Copyrighted Material Omitted]
E. Alan Nunez for Defendants and Appellants.
Bruce D. Goldstein, County Counsel, and Joshua A. Myers, Deputy County Counsel for Plaintiff and Respondent.
American Contractors Indemnity Company and El Primo Bail Bonds (the “bond companies”) appeal from an order denying relief from a bail forfeiture and the summary judgment that ensued. The bond companies advance two arguments—first, the superior court’s notice of forfeiture was deficient because it failed to explain the “underlying statutory scheme” to obtain a discharge of forfeiture, and second, the requirements for forfeiture were not met because the trial court did not expressly order defendant to appear at the hearing at which he failed to appear. We reject both assertions, and affirm. In rejecting the second, we are called on to decide an issue as to which there has been some disagreement among the courts of appeal—whether Penal Code section 977, subdivision (b)(1), requiring felony defendants to personally appear absent a written waiver of appearance, supplies the legal compulsion to make a defendant’s presence in court “lawfully required” under the bail forfeiture statute, Penal Code section 1305, subdivision (a)(4). We conclude section 977 suffices in this regard.
A $30, 000 bail bond was posted in January 2012 to secure the appearance of defendant Jose Abraham Maldonado, who was charged with felony transportation or sale of marijuana (Health & Saf. Code, § 11360, subd. (a)).
Maldonado appeared for a settlement conference on February 21. At defense counsel’s request, and after confirming with Maldonado that he continued to waive time, the trial court continued the conference to March 2. The court did not, however, expressly order Maldonado to appear. When Maldonado failed to appear on March 2, the court ordered bail forfeited and issued a warrant.
On March 5, the clerk issued and served the bond companies with a “Notice of Bail Forfeiture.” This notice stated: “Please be advised that Bail Bond #A302124405 in the amount of $30000 which was posted by you on behalf of the above defendant has been ordered forfeited by the Court for failure to appear on March 2, 2012.”
Six months later, on September 12, the trial court entered summary judgment pursuant to the forfeiture. The clerk served the bond companies with file endorsed copies of both the “Summary Judgment” and “Notice of Entry of Judgment.”
American Contractors moved to set aside the summary judgment and to discharge the forfeiture and exonerate the bond. It asserted the notice of forfeiture was legally deficient in that it did not “inform the recipient of the underlying statutory procedural scheme to obtain a discharge of forfeiture.” Several weeks later, American filed a supplemental memorandum of points and authorities asserting the trial court improperly declared bail forfeited at the March 2 hearing because it had not expressly ordered Maldonado to appear at the hearing. Specifically, American contended Maldonado had not failed to appear at a hearing at which his presence was “lawfully required” as required by the bail forfeiture statute, section 1305, subdivision (a)(4). The People filed opposition, and the trial court denied American’s motion by minute order on March 6, 2013.
Sufficiency of Notice of Forfeiture
The bond companies continue to maintain the clerk’s notice of forfeiture was legally deficient, citing People v. Swink (1984) 150 Cal.App.3d 1076 [198 Cal.Rptr. 290] (Swink) and Minor v. Municipal Court (1990) 219 Cal.App.3d 1541 [268 Cal.Rptr. 919] (Minor). We disagree for the reasons set forth in the recent opinion by Division Three of this appellate district in People v. Accredited Surety & Casualty Co., Inc. (2013) 220 Cal.App.4th 1137 [163 Cal.Rptr.3d 722] (Accredited Surety).
In Accredited Surety, the surety maintained as the bond companies do here, that the notice of forfeiture sent by the court was constitutionally inadequate under Swink and Minor because it: (1) failed to cite the statutory provisions under which the forfeiture was being declared, (2) failed to cite what relief from forfeiture was available to the company, and (3) failed to state the time limits for seeking relief from the forfeiture. (Accredited Surety, supra, 220 Cal.App.4th at pp. 1141–1142.)
Accredited Surety did not take issue with Swink or Minor, which held similar notices insufficient, or with Memphis Light, Gas & Water Div. v. Craft
(1978) 436 U.S. 1 [56 L.Ed.2d 30, 98 S.Ct. 1554], on which those cases relied. Rather, the Court of Appeal pointed out all three cases turned on the fact the forfeiture notices in those cases were sent to laypersons, not to business entities engaged in the bail bond business. “These cases, on which [Accredited] Surety relies, all involved the sufficiency of notice to laypersons, who presumably were unaware of the statutory procedures for obtaining relief. These same cases recognize that the ultimate question in determining whether a given notice satisfies due process is whether, under the particular circumstances, the notice is reasonably calculated to inform the recipient of the process by which the recipient may challenge the governmental action in question.” (Accredited Surety, supra, 220 Cal.App.4th at pp. 1143–1144.)
Accredited Surety, in contrast, was a licensed insurer and professional surety which routinely worked within the framework of section 1305 in issuing and enforcing bail bonds. Accordingly, the court concluded Swink and Minor provided no basis to deem the forfeiture notice sent to it ...