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People v. Financial Casualty & Surety, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Dec 10, 2019
No. E071350 (Cal. Ct. App. Dec. 10, 2019)

Opinion

E071350

12-10-2019

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

Law Office of John Rorabaugh and John M. Rorabaugh, for Defendant and Appellant. Gregory P. Priamos, County Counsel, Tiffany North and Eric L. Stopher, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1812870) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Law Office of John Rorabaugh and John M. Rorabaugh, for Defendant and Appellant. Gregory P. Priamos, County Counsel, Tiffany North and Eric L. Stopher, Deputy County Counsel, for Plaintiff and Respondent.

I.


INTRODUCTION

Defendant and appellant, Financial Casualty & Surety, Inc. (Surety), through its agent, Bail Hotline Bail Bonds (Agent), posted a $25,000 bond for defendant, Tammy Marks. When defendant failed to appear, the trial court forfeited the bond. The clerk of the court certified that she mailed notice of the forfeiture to Surety and Agent under Penal Code section 1305, subdivision (b)(1) (section 1305). After more than 180 days had elapsed, neither Surety nor Agent had responded to the forfeiture notice, so the trial court entered summary judgment on the forfeiture against Surety as required by section 1306. Surety moved to set aside the judgment on the ground that neither Surety nor Agent received notice of the forfeiture. The trial court denied the motion.

Unless otherwise stated, all statutory references are to the Penal Code.

On appeal, Surety asserts the trial court erred for two reasons: (1) it lacked jurisdiction because Surety and Agent did not receive notice of the bond forfeiture and; (2) the bail-setting procedures the trial court used to set bail were unconstitutional because the trial court failed to consider defendant's ability to pay the $25,000 bond. We find no error and affirm.

II.


FACTUAL AND PROCEDURAL BACKGROUND

In June 2013, defendant was charged with one misdemeanor count of being under the influence of a controlled substance. (Health & Safety Code, § 11550.) After defendant repeatedly failed to appear, the trial court issued a $25,000.00 bench warrant for her arrest. Defendant was arrested and Agent posted a $25,000 bond for defendant as an agent for Surety. Defendant, however, failed to appear for arraignment, and the trial court forfeited the bond.

The clerk of the court certified that she mailed notice of the forfeiture to Surety and Agent. The notice indicated that Surety and Agent were "entitled to a hearing as to the setting aside of the forfeiture" within 180 days of receiving the notice upon a properly noticed motion. After more than 180 days had elapsed, neither Surety nor Agent had filed any motion, so the trial court entered summary judgment against Surety on the bond forfeiture as mandated by section 1306.

Surety then moved under Code of Civil Procedure section 473, subdivision (b) to set aside the summary judgment, discharge the bond forfeiture, and exonerate bail. Surety argued the trial court lacked jurisdiction to forfeit the bond because the clerk of the court failed to mail notice of the forfeiture under section 1305. Surety submitted a declaration from one of its employees stating that Surety had no records of receiving notice of the forfeiture, and another declaration from one of Agent's employees stating Agent likewise had no such records. The trial court denied Surety's motion, and Surety timely appealed.

The record is silent as to the trial court's reasoning for denying the motion. Although the trial court heard argument on the motion, the record does not contain a transcript of the hearing. Instead, the record contains only the trial court's minute order stating only that Surety's "Motion to set aside Summary Judgment is Denied."

III.


DISCUSSION

A. Standard of Review

Surety argues we should apply a de novo standard of review because this appeal presents "purely statutory and legal" issues. We disagree in part. As explained below, the trial court's decision to deny Surety's motion to set aside the judgment for lack of jurisdiction does not involve a pure issue of law, but rather rests on its factual finding that the clerk of the court mailed notice of the forfeiture to Surety and Agent. We therefore review that aspect of the trial court's decision for an abuse of discretion and its factual findings for substantial evidence. (See People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 973 ["The trial court made a specific factual finding that the surety 'was notified of bail bond forfeiture.' This was supported by substantial evidence; the trial court did not abuse its discretion in so finding."].) But we review Surety's argument that the trial court unconstitutionally set defendant's bail under the de novo standard of review. (In re Taylor (2015) 60 Cal.4th 1019, 1035.)

Under the substantial evidence standard of review, we "look at the evidence in support of the successful party, disregarding any contrary showing, and we resolve all conflicts in favor of the respondent." (Canister v. Emergency Ambulance Services (2008) 160 Cal.App.4th 388, 394.) "When two or more inferences can reasonably be deduced from the facts, we do not substitute our deductions for those of the finder of fact." (Ibid.) "If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) Under the de novo standard of review, "we undertake our own interpretation . . . and assess any claims raised by the parties completely anew." (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)

B. Substantial Evidence Supports the Trial Court's Order Denying Surety's Motion

1. The trial court had jurisdiction to enter summary judgment against Surety

"[T]he surety and bail agent are entitled to separate notice under [section 1305] every time a [bond] forfeiture is declared." (People v. American Contractors Indemnity Co. (2001) 91 Cal.App.4th 799, 808.) Section 1305's requirements "are subject to precise and strict construction." (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62.) If the clerk of the court does not mail notice of a bond forfeiture to the surety and its bail agent as section 1305 requires, the trial court lacks jurisdiction over the bond and any summary judgment on it is void. (County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 16.) But if the clerk of the court mails notice of the forfeiture, "[t]he surety that posted the bond then has a statutory 'appearance' period [of 180 days] in which either to produce the accused in court and have the forfeiture set aside, or to demonstrate other circumstances requiring the court to vacate the forfeiture. If the forfeiture is not set aside by the end of the appearance period, the court is required to enter summary judgment against the surety. (§ 1306, subd. (a).)" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.)

Evidence Code section 641 creates a presumption "that adequate proof of mailing is presumptive evidence of receipt." (Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 403.) If there is evidence that a document was properly mailed, the trier of fact must presume the document was received. (Evid. Code, § 604.) That presumption, however, may be rebutted by contradictory evidence. (Seibert Security Services, Inc. v. Superior Court, supra, at p. 403.) But even when "presumption disappears where, as here, it is met with contradictory evidence, inferences may nevertheless be drawn from the same circumstances that gave rise to the presumption in the first place." (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.)

Here, the clerk of the court certified that she mailed a notice of the bond forfeiture to Surety and Agent. This was sufficient to trigger the presumption under Evidence Code section 641 that Surety received the notice. (Craig v. Brown & Root, Inc., supra, 84 Cal.App.4th at p. 421.) Surety, however, rebutted that presumption by submitting declarations stating that neither Surety nor Agent received the notice. (Ibid.) Surety therefore contends the trial court lacked jurisdiction to enter summary judgment because its declarations established that the clerk of the court failed to mail Surety and Agent notice of the bond forfeiture, as section 1305 requires.

We disagree because substantial evidence supports the trial court's implied factual finding that the clerk of the court mailed the notice of the bond forfeiture. Although the record is silent as to the trial court's reasons for denying Surety's motion to set aside the judgment, we must "presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record; i.e., the necessary findings of ultimate fact will be implied, and the only issue on appeal is whether the implied findings are supported by substantial evidence. [Citation.]" (McMillan Companies, LLC v. American Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 532 fn.21.) Section 1305 does not require the trial court to ensure that the surety and bond agent receive notice of a bond forfeiture. Section 1305 requires only that the clerk of the court mail the notice of the forfeiture. (§ 1305, subd. (b)(1) [". . . [T]he clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety or the depositor of money posted instead of bail," italics added].)

Substantial evidence supports the trial court's implied factual finding that the clerk of the court had complied with that requirement. The clerk of the court's certificate of mailing the notice of the bond forfeiture stated that she served the notice on Surety and Agent under section 1305 by depositing the notice in the court's outgoing mail. This is substantial evidence that the clerk of the court had mailed the notice of forfeiture to Surety and Agent in accordance with section 1305. (See People v. Safety National Casualty Corp., supra, 186 Cal.App.4th at pp. 968-969 [holding that a clerk of the court's certificate of mailing was substantial evidence that notice of a bond forfeiture was mailed to surety in accordance with section 1305].)

Despite Surety's contradictory evidence that it and Agent had not received the notice, the trial court properly weighed the conflicting evidence and reasonably determined that Surety did not meet its burden of proving that the clerk of the court had failed to mail the notice, which is all that section 1305 requires. Nothing in section 1305 indicates that a court may enter judgment on a forfeited bond only if the surety and agent have received mailed notice of the forfeiture. That Surety and Agent have no records of the certificate or having received it does not mean that the clerk of the court did not mail it. (See People v. Safety National Casualty Corp., supra, 186 Cal.App.4th at p. 592 ["At most, [the surety's attorney's] declaration established that the surety had no record it received the notice, but the surety's failure to keep adequate records is not a ground for vacating the forfeiture."].)

We therefore conclude the trial court reasonably determined that Surety did not meet its burden of proving that the forfeiture notice was not mailed to Surety or Agent given the clerk of the court's certificate stating otherwise. The trial court is the "sole arbiter of the facts," and we may not "weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or the reasonable inferences that may be drawn from the evidence." (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.) Because substantial evidence supports the inference that the clerk of the court properly mailed the notice of the bond forfeiture to Surety and Agent, we conclude the trial court had jurisdiction to enter summary judgment against Surety on the bond forfeiture. (See ibid.)

2. Surety's Argument that Defendant's Bail-Setting Procedures Were Unconstitutional Is Waived and Meritless

Relying on In re Humphrey (2018) 19 Cal.App.5th 1006, review granted May 23, 2018, S247278, Surety argues for the first time on appeal that the trial court unconstitutionally set defendant's bail at $25,000 without considering her ability to pay that amount. The People contend Surety lacks standing to assert the argument on defendant's behalf, forfeited the argument by failing to raise it in the trial court, and the argument fails on the merits.

Our colleagues in the Third Appellate District recently addressed the People's arguments in People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891 (Accredited). The court first concluded the surety had standing to argue that the trial court unconstitutionally set defendant's bond. (Id. at pp. 896-897.) The court reasoned that, as a party to the bond contract, the surety had standing to raise objections to its invalidity, such as its theory that "the constitutional violation rendered the contract itself void." (Ibid.) Here, Surety likewise asserts defendant's bond is "invalid and void" because her bail was set unconstitutionally. Following Accredited, we conclude Surety has standing to make that argument as a party to the bond contract. (Ibid.)

We also conclude Surety did not forfeit the argument. In Accredited, the surety argued for the first time on appeal that the trial court's failure to consider the defendant's ability to pay the bond amount was unconstitutional under Humphrey. (Accredited, supra, 34 Cal.App.5th at p. 896.) The People argued the surety forfeited the argument because the surety failed to make it in the trial court. (Ibid.) The Accredited court disagreed. (Ibid.) The court reasoned that Humphrey reflected an unanticipated change in the law, so the surety had "no reason" to object on constitutional grounds at the defendant's bail-setting hearing, and "did not forfeit the right to appeal the procedure based on subsequent changes in the law." (Accredited, supra, at p. 897.)

So too here. Defendant's bond-setting hearing was held in December 2017, and Humphrey issued a month later. Surety did not forfeit its argument that defendant's bond was set unconstitutionally because that argument was not cognizable at the time of the hearing. (Accredited, supra, 34 Cal.App.5th at p. 897.)

But, as the Accredited court explained, even if a trial court unconstitutionally sets a defendant's bond, that constitutional "violation does not void the underlying bail bond" for two reasons. (Accredited, supra, 34 Cal.App.5th at p. 897.) First, a surety waives any objection to "procedural irregularities in the bail setting hearing when it 'assumes its obligations . . . at the time of the execution of the bond.'" (Id. at p. 898.) Second, a trial court's purported failure to constitutionally set a defendant's bail has "'no legal effect on the forfeiture of bail upon defendant's failure to appear for sentencing.' [Citation.]" (Ibid.)

Under Accredited, we conclude Surety waived its argument that the trial court set defendant's bond unconstitutionally and, even if the trial court erred in doing so, any resulting error does not render the bond void. (Accredited, supra, 34 Cal.App.5th at p. 897-898.) Thus, even if the trial court set defendant's bond unconstitutionally, the trial court did not err in entering summary judgment against Surety and denying its motion under Code of Civil Procedure section 473, subdivision (b) to set aside the judgment.

IV.


DISPOSITION

The judgment is affirmed. The People shall recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J. We concur: McKINSTER

Acting P. J. SLOUGH

J.


Summaries of

People v. Financial Casualty & Surety, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Dec 10, 2019
No. E071350 (Cal. Ct. App. Dec. 10, 2019)
Case details for

People v. Financial Casualty & Surety, Inc.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FINANCIAL CASUALTY & SURETY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Dec 10, 2019

Citations

No. E071350 (Cal. Ct. App. Dec. 10, 2019)