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People v. Financial Casualty & Surety, Inc.

California Court of Appeals, Fourth District, First Division

September 17, 2019

THE PEOPLE, Plaintiff and Respondent,
FINANCIAL CASUALTY & SURETY, INC., Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2018-00011275- CU-EN-CTL Maureen F. Hallahan and Lorna Alksne, Judges.

          Law Office of John Rorabaugh, John Mark Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant.

          Thomas E. Montgomery, County Counsel and Walter J. de Lorrell, III, Senior Deputy, for Plaintiff and Respondent.

          IRION, J.

         Financial Casualty & Surety, Inc. (Surety), which posted a bail bond on behalf of criminal defendant Abdul Karim Juma, appeals following the trial court's denial of its motion to vacate the trial court's forfeiture of the bail bond and to exonerate the bail bond following Juma's failure to appear. Surety contends that the trial court lacked jurisdiction to forfeit the bond because (1) it failed to enter an order forfeiting the bond at an earlier hearing at which Juma may not have been present; and (2) on several grounds, the bail agreement was rendered void and was exonerated when the trial court required that Juma waive his Fourth Amendment right against warrantless searches. We conclude that Surety's arguments lack merit, and we accordingly affirm the judgment.



         On June 23, 2016, Juma was arraigned on charges of mayhem (Pen. Code, § 203), [1] assault with a deadly weapon (§ 245, subd. (a)(1)), and assault likely to produce great bodily injury (§ 245, subd. (a)(4)). Bail was set in the amount of $100, 000. On June 26, 2016, Surety posted a $100, 000 bail bond for Juma's release from custody. The bond set forth an undertaking from Surety that Juma would appear in court on a specific date, 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." The bond provided that if Juma failed to perform the conditions, the court could enter summary judgment against Surety in the amount of $100, 000.

         After Juma was released on bail, the trial court twice identified specific additional conditions of bail. First, a minute order from July 15, 2016, states that the court ordered that Juma have no contact with the victim of the crime. Second, the minute order for the August 24, 2016 hearing stated that a "previously ordered" condition of bail requiring Juma to waive his Fourth Amendment rights against warrantless searches (the Fourth Waiver) "continues."[2]

         According to the minute orders in the appellate record, Juma appeared for hearings on July 1 and 15 and August 24, 2016. However, for a hearing held on August 5, 2016, the clerk who filled out the minute order neglected to check the box indicating whether Juma was present, and no reporter's transcript exists for that hearing. The only indication that Juma may, in fact, have been present in court on August 5, 2016, is the minute order's statement that "distribution" of the order to defense counsel and Juma took place on the date of the hearing.

         After having appeared on August 24, 2016, Juma failed to appear for a September 29, 2016 hearing, and the trial court entered an order forfeiting bail. The notice to Surety of the order stated that the forfeiture would become final in 180 days unless Surety obtained a court order setting aside the forfeiture or tolling the forfeiture statute. (§ 1305).[3] The trial court subsequently entered an order extending Surety's deadline to appear to set aside the forfeiture to November 6, 2017.

         On September 26, 2017, Surety filed a motion to set aside the forfeiture and exonerate the bail bond, or in the alternative to further extend the period to seek such relief based on the fact that Surety's investigator had located Juma in Kenya and the District Attorney was in the process of deciding whether to extradite Juma. The District Attorney filed an opposition, in which it argued that Surety had not fulfilled all of the requirements for exonerating bail by merely locating Juma in Kenya. Among other things, the applicable statute authorizes exoneration of the forfeiture only if the prosecuting agency has already made an election not to extradite the defendant. (§ 1305, subd. (g).)[4] On October 23, 2017, the trial court denied the motion without prejudice.

         On November 6, 2017, Surety filed a second motion to vacate the forfeiture and to exonerate the bond, or in the alternative to toll the period for it to seek to vacate the forfeiture. The motion was based on substantially the same facts as the previous motion, but it updated the facts concerning the District Attorney's continued consideration of whether to seek extradition of Juma and Surety's efforts to provide information to the District Attorney relating to that issue. The District Attorney opposed the motion on the same grounds as earlier and also pointed out that an order tolling Surety's period to vacate the forfeiture was not available because the District Attorney would not agree to it.[5]

         On January 9, 2018, prior to the hearing on the motion (but after the appearance period expired on November 6, 2017) Surety filed a "Supplemental Memorandum of Points and Authorities" in support of its motion. The supplemental briefing argued (1) the trial court lost jurisdiction over the bail bond because a minute order indicates that Juma may have failed to appear at an August 5, 2016 hearing, but the trial court did not order bail forfeited for the nonappearance; and (2) the trial court materially and unconstitutionally altered the terms of the bail contract when it imposed the Fourth Waiver as a condition of bail and failed to notify Surety of the additional condition, which had the effect of voiding the bail agreement. The District Attorney filed a supplemental opposition, in which it argued, among other things, that Surety was barred from raising additional grounds for its motion after the expiration of the appearance period.

         At a hearing held on February 21, 2018, the trial court denied the motion to vacate the forfeiture and to exonerate the bond. The trial court considered and rejected the two arguments set forth in Surety's supplement briefing. On the first issue, the trial court explained that Surety, which had the burden to set forth competent evidence in support of its motion, had not established that Juma failed to appear on August 5, 2016, and thus had not established that the trial court lost jurisdiction over the bail bond by failing to order bail forfeited on that date. On the second issue, the trial court stated that the addition of the Fourth Waiver as a condition of bail did not materially affect the bail contract with Surety and did not "in any way further expose[] [Surety]."

         On March 5, 2018, the trial court ordered summary judgment on the bail bond forfeiture, ordering that Surety pay $100, 000, along with costs and interest. Surety appeals from the judgment.



         A. Surety Did Not Establish That the Trial Court Lost Jurisdiction by Improperly Failing to Order Bail Forfeited on August 5, 2016

         We first consider Surety's argument that the trial court lost jurisdiction over the bail bond when it failed to order bail forfeited on August 5, 2016.[6]

         1. Stand ...

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