Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Ct. No. 0SJ1203, Terry A. Bork, Judge.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Office of the County Counsel, Ralph H. Rosato, Assistant County Counsel and Joanne Nielsen, Deputy County Counsel for Plaintiff and Respondent.
CHAVEZ J.
Financial Casualty & Surety, Inc. (appellant) appeals from an order denying its motion to vacate forfeiture, reinstate bond, and exonerate bond pursuant to Penal Code section 1305, subdivisions (c)(3) and (f). Appellant argues that it is entitled to exoneration of the bond as a matter of equity, due to a miscommunication between the clerk of the court and the bail agent. We find that, on the record before us, the trial court did not abuse its discretion in denying appellant’s motion to set aside the forfeiture. Therefore we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
On January 29, 2009, Twin Towers Bail Bonds (Twin Towers), bail agent for appellant, posted bail bond No. FCS25-372290 for the release of defendant David Oliver (Oliver) from custody. This bond was applied in Los Angeles Superior Court case No. MA044715 (the current action). The defendant had also been charged in another case, No. MA044967 (the second action), in the same court. Oliver appeared in court three times on the current action, but on April 30, 2009, he failed to appear and bail was forfeited. The notice of forfeiture was mailed to appellant and its agent.
On July 1, 2009, a motion to vacate the forfeiture of the bond and exonerate bail was filed in the second action. The motion was granted and the bond in the second action was exonerated on July 22, 2009.
Blain Carbo (Carbo), the bail agent in the current action, learned in August 2009, that Oliver had been arrested in Idaho. He notified fellow agent Robert Herman (Herman), who said he would check on the status of the bond. Herman called the clerk and inquired about the status of the bond in “the David Oliver case.” He was informed that the bond had been exonerated on July 22, 2009. Therefore, Carbo closed his investigation.
On April 30, 2009, the court mailed a notice of forfeiture, indicating payment would be due on the 186th day following the date of the mailing of the notice. On January 8, 2010, the court entered summary judgment on the forfeited bond and mailed the notice to appellant and its agent.
On February 10, 2010, Twin Towers, as bail agent and indemnitor of appellant, filed a motion to set aside the forfeiture, arguing that Oliver had been arrested in Idaho in June 2009. Relying on section 1305, subdivisions (c)(3) and (f), Twin Towers argued that it was entitled to exoneration.
Section 1305, subdivision (c)(3) reads: “If, outside the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, the court shall vacate the forfeiture and exonerate the bail.” Section 1305, subdivision (f) reads: “In all cases where a defendant is in custody beyond the jurisdiction of the court that ordered the bail forfeited, and the prosecuting agency elects not to seek extradition after being informed of the location of the defendant, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release.”
The motion was supported by two requests for judicial notice. The first was a copy of the notice of forfeiture in the current action. The second was a docket entry from the second action dated July 22, 2009, showing that a motion to vacate forfeiture, reinstate bond, and exonerate bond had been granted in that matter. The motion referenced an exhibit C, but there was no exhibit C attached to the motion.
The County of Los Angeles (County) filed an opposition to the motion. It argued that Twin Towers had no standing to bring the motion because the defendant in the summary judgment proceeding was appellant. The County also argued that, even if the court were to consider the motion, the moving party had presented nothing that would enable the court to grant the relief requested. There was no declaration attesting to the authenticity of the documents attached to the motion. Further, the two documents attached to the motion did not support Twin Towers’s argument. The fact that an order of forfeiture had been issued in the current action was not at issue, and the docket entry showing exoneration of a bond in the second action did not include the defendant’s name and did not support a showing that the judgment in the current action should be set aside. Finally, the County argued, there was no mention in the motion as to whether Oliver -- even if he was arrested and held in custody out-of-state during the appearance period -- was being held on the underlying case as required by section 1305, subdivision (c)(3).
The matter was to be heard on March 19, 2010. On March 15, 2010, appellant filed two supplemental declarations, as well as supplemental points and authorities. The two declarations, filed by Carbo and Herman, explained their position more fully. Carbo stated that he learned from an informant that Oliver was in custody. Carbo passed on this information to Herman, who indicated that he would check with the court as to the status of the bond. Herman later informed Carbo that the bond had been exonerated, so Carbo closed his investigation.
Herman attested that he called the clerk of the Antelope Valley Superior Court on August 5, 2009. He informed the clerk that he was the bail agent “on the David Oliver case” and asked the clerk for the status of the bond. The clerk informed him that the bond had been exonerated on July 22, 2009. Herman then informed Carbo of the information he had received from the clerk. Herman did not proceed with any investigation or file any motion for exoneration because he was informed that the bond was exonerated.
In the supplemental points and authorities filed by appellant, appellant argued that the surety had a right to rely on court records and court personnel. Appellant argued that, if the clerk had given the bondsman accurate information, they could have easily filed a motion and obtained the exoneration they were entitled to. Appellant cited cases in which court clerks had misrepresented information, resulting in relief based on the equitable doctrine of extrinsic mistake.
The hearing on the motion to set aside summary judgment took place on March 19, 2010. The requests for judicial notice were addressed first. The court granted judicial notice as to the notice of forfeiture, because the court found the document within its own file. However, the court denied the request for judicial notice as to the docket entry dated July 22, 2009, in the second action, finding that “authentication doesn’t rise to the level where judicial notice is appropriate.”
Appellant argued that this was a case of unfortunate mistake, which could be blamed on the clerk. However, counsel acknowledged that the agent used only Oliver’s name when speaking with the clerk, and that the agent was unaware that Oliver had forfeited another bond.
County counsel argued that appellant had presented insufficient evidence that the bond should be exonerated. The court had denied judicial notice of the docket entry showing exoneration of the bond in the second action. Even if it had not denied judicial notice of that document, counsel argued, exoneration of a bond in a different matter did not dictate that exoneration of the bond in the current matter was appropriate. The County further argued that the agent did not act as diligently as he should have. Specifically, “[i]f he chose to have a conversation with the clerk, who is nameless, and use only a defendant’s name and not confirm the forfeiture date or the bond number or the case number, that certainly wasn’t diligent. It is more careless.” Finally, County counsel argued that appellant had presented “nothing... to show that [Oliver] actually was in custody out of state, or that if he was in custody, that he was arrested on the underlying case which is a requirement of section 1305.”
The court denied the motion to set aside summary judgment, concluding “On the record before me, the motion to set aside summary judgment and reinstate and exonerate the bail is denied.”
On April 16, 2010, appellant filed a timely notice of appeal.
DISCUSSION
I. Standard of review
“The resolution of a motion to set aside a bail forfeiture is within the trial court’s discretion and should not be disturbed on appeal unless a patent abuse appears on the record. [Citation.]” (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195; People v. Wilcox (1960) 53 Cal.2d 651, 656.)
II. General principles governing bail forfeiture
Generally, the law disfavors forfeitures, and statutes imposing them are to be strictly construed. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906.) “The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court.” (People v. Wilcox, supra, 53 Cal.2d at pp. 656-657.) Therefore, in determining matters of bail forfeiture, “there should be no element of revenue to the state nor punishment of the surety.” (Id. at p. 657.)
III. No abuse of discretion occurred
Appellant argues that it is entitled to exoneration as a matter of equity, given the misinformation that the clerk of the court supplied to its agent. Appellant’s position is that but for the clerk’s erroneous statement that the bond had already been exonerated, appellant would have filed a motion for relief from forfeiture before the summary judgment was entered. Appellant insists that there is something inherently reprehensible about allowing a clerk to make representations that cause a party to refrain, to its detriment, from action it would have otherwise taken.
This argument is not supported by the facts of the case. Appellant has failed to show that the clerk made any specific misrepresentation to the bail agent. It is apparent that Oliver had two cases pending simultaneously. The bail agent in the second action filed a motion to vacate the forfeiture, and the motion was granted. Thus, when appellant’s agent called to check on the status of the bond in “the David Oliver case, ” the clerk gave him accurate information as to the status of the bond in the second action. Appellant’s agent did not provide the case number, the bond number, or the amount of the bond. The clerk had no way of knowing that appellant’s agent was referring to a different matter involving the same defendant. To characterize this conduct as “fraud and misrepresentation” on the part of the clerk is inaccurate. Appellant’s agent had a responsibility to at least provide the relevant case number so that the clerk could give him information specific to the current action.
Appellant cites several cases to support its position, all of which are factually distinguishable. First, appellant cites County of Orange v. Allied Fidelity Ins. Co. (1984) 161 Cal.App.3d 510 (Allied). In Allied, a sentencing date was set by the judge, then continued. The defendant failed to appear on the initial date and bail was forfeited. However, the defendant appeared on the continued date. The court granted defense counsel’s request to exonerate the bond, without specifically uttering the words setting aside the previous forfeiture. The county thereafter obtained summary judgment on the forfeited bond, and the surety’s motion to set aside the summary judgment was denied. (Id. at pp. 511-512.) The Court of Appeal reversed, determining that although the record was silent, it was presumed that the court discharged the forfeiture. (Id. at p. 513.) Here, in contrast, there was no order exonerating the bond and thus no presumption that the forfeiture had been vacated.
Appellant makes much of the court’s statement that “[t]he county was entitled to [the defendant’s] person or the bond, not both.” (Allied, supra, 161 Cal.App.3d at p. 513.) However, in Allied, the defendant actually appeared in court during the appearance period. The county was provided with the defendant, thus it was not entitled to the bond. Here, the defendant did not appear -- nor was any evidence presented to the court showing that the defendant was in custody -- during the appearance period. Under the circumstances, the court’s determination that the county was entitled to the bond was proper.
Appellant relies on County of Los Angeles v. Resolute Ins. Co. (1972) 22 Cal.App.3d 961 for the proposition that, where the surety has no knowledge of the requirement to seek relief from forfeiture, it is not subject to any time constraint for seeking relief. In Resolute, the clerk failed to mail notice of forfeiture of the bond in question to the surety’s principal office, the address of which was printed on the bail bonds. (Id. at p. 962.) Given that it had no notice of the forfeiture, the court determined that the surety’s motion to vacate summary judgment on the bond should have been granted. In this matter, there is no question that appellant had full knowledge of the forfeiture and that all the statutory notice requirements were fulfilled. Resolute does not support appellant’s argument that, on the facts before us, the motion to set aside the summary judgment should have been granted.
Appellant next points to cases which, appellant claims, hold that “a mistake by the clerk of the court invokes the application of the doctrine of relief in equity.” Neither case supports appellant’s position under the facts of this case.
In Rappleyea v. Campbell (1994) 8 Cal.4th 975 (Rappleyea), out-of-state defendants were misinformed of the correct filing fee. Based on this misinformation, they enclosed the wrong fee with their answer to a complaint, which resulted in a default judgment against them of $200,240.39. This situation led the court to ultimately conclude that the default should have been set aside on the basis of extrinsic mistake -- “a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. [Citations.]” (Id. at p. 981.)
As explained above, the statement by the clerk in this matter does not amount to the type of direct misinformation provided by the clerk in Rappleyea. Given the information provided to the clerk by appellant’s agent, the clerk cannot be blamed for the outcome in this case. Appellant cannot invoke equitable relief where its agent’s own error caused appellant to forego the timely filing of a motion for relief from forfeiture.
Mirvis v. Crowder (1995) 32 Cal.App.4th 1684 (Mirvis), also cited by appellant, is factually similar to Rappleyea. In Mirvis, the filing fee had gone up, unbeknownst to the plaintiff’s attorney. Upon receiving the complaint with the insufficient fee, the clerk had assured plaintiff’s counsel that despite the incorrect filing fee, the complaint would be deemed filed on that date. However, the complaint was not filed until several days later, rendering it subject to dismissal under the relevant statute of limitations. Under the circumstances, the Court of Appeal felt that the plaintiff was entitled to equitable relief, and that his complaint should be deemed filed on the date it was received, as the clerk indicated. As in Rappleyea, the clerk made a specific representation regarding that particular case which unfairly caused a party to compromise its rights. The circumstances of this case are different. The clerk was given insufficient information, and appellant’s agent made the mistake of failing to clarify the relevant case number or bond number. Appellant has cited no authority indicating that it is entitled to equitable relief under these circumstances.
Finally, appellant claims that it qualifies for equitable relief under the three elements of that doctrine: (1) the defaulted party must demonstrate that it has a meritorious case; (2) the party seeking to set aside default must articulate a satisfactory excuse for not presenting a defense to the original action; and (3) the moving party must demonstrate diligence in seeking to set aside the default once discovered. (Rappleyea, supra, 8 Cal.4th at p. 982.) We disagree, and find that appellant cannot satisfy these elements on the record before us. Appellant has provided no direct evidence of Oliver’s arrest or incarceration, other than Carbo’s declaration that he was notified by an informant that the incarceration had taken place. Further, appellant’s agent’s nonspecific conversation with the clerk, without mention of case number or bond number, does not amount to a satisfactory excuse for failing to make a timely motion to exonerate the bond.
The trial court did not abuse its discretion in determining that, on the record before it, relief from the summary judgment and forfeiture of bond was not warranted.
DISPOSITION
The order is affirmed. Each side to bear their own costs on appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.