Citations
- 51 Cal. App. 4th 1379
Full opinion text
Opinion
WUNDERLICH, J.
Ranger Insurance Company, the surety on a bail bond, appeals from the trial court’s order granting summary judgment and denying its motion to set aside a forfeiture. On appeal the surety contends that because of certain procedural irregularities in the giving of notice, it should have been released from all its obligations under the bond. (Pen. Code, § 1305.) We agree and reverse.
Statement of Facts
On March 10, 1994, Ranger Insurance Company (Ranger) posted a bail bond for the release of defendant Ignacio Salazar. Ranger is a Delaware Corporation. Ranger’s address on the bail bond was that of its managing agent, Spencer Douglass, in San Diego.
On April 21, 1994, Ranger obtained a restraining order against Spencer Douglass and Ranger served each California county with a copy of the order and a notice that Ranger was no longer writing bail in California and requesting that forfeiture notices be sent to its post office box in Houston, Texas. On August 3, 1994, Ranger wrote the Santa Clara County Clerk that it was resuming bail bond operations in California and reminding the clerk of its new address in Houston, Texas.
Less than three weeks later, on August 22, 1994, defendant Ignacio Salazar failed to appear and the bail was declared forfeited. The court clerk sent notice of forfeiture to the local bail bondsman and to Douglass in San Diego, despite Ranger’s notices. Douglass forwarded this notice to Ranger. On August 24, 1994, defendant apparently appeared and the court ordered the forfeiture set aside and ordered reassumption of bond obligations by Frontier Pacific Insurance Company (not Ranger). On September 7, 1994, the court accepted reassumption and purported to reinstate Ranger’s liability on the bond.
Notice of court costs regarding setting aside the forfeiture was sent to Spencer Douglass, at his old San Diego address. This was returned to the court, which mailed a second notice to Douglass at his new address in Carlsbad, California, in January of 1995. The court continued to ignore Ranger’s notice that it was no longer associated with Douglass and it did not mail this notice of costs to Ranger.
On November 23, 1994, defendant pleaded no contest to the charges and the sentencing was set for March 17, 1995. On March 17, 1995, defendant failed to appear for sentencing. The court ordered the bail forfeited. Evidently defense counsel offered the excuse that defendant was told to appear on the 31st not the 17th, and the forfeiture order was stayed by the court and the matter continued until March 31st. On March 31, 1995, defendant again failed to appear. The bail forfeiture order was ordered to execute. Notice of bail forfeiture was again sent by the court clerk to Douglass’s old address. That notice was returned to the court since the forwarding order had expired. Sometime later an amended notice (undated) was sent to Douglass’s new address in Carlsbad, not to Ranger in Houston. Ranger never received the notice.
On October 11, 1995, summary judgment was entered on the forfeiture. Notice of entry of judgment was sent to Ranger at its Houston, Texas address. Ranger moved to discharge the forfeiture and to set aside the summary judgment and exonerate bail on December 13, 1995. Although a hearing was held, the reporter’s transcript is not included in the record on appeal. The trial court denied the motion.
Contentions on Appeal
Appellant Ranger contends: 1) failure to give notice of forfeiture to the surety deprives the court of jurisdiction and exonerates the bond; 2) there was no valid reassumption of liability on the part of Ranger upon defendant’s reappearance in court; 3) the trial court lost jurisdiction and the bond was exonerated for failure of the trial court to declare forfeiture immediately on the March 17th failure to appear; and 4) failure to give the surety notice of the March 31, 1995, forfeiture deprived the court of jurisdiction and exonerated the bond. The People contend: 1) the trial court properly denied appellant’s motion because notice of the August 22, 1994, forfeiture was mailed in accordance with section 1305, subdivision (b); 2) appellant may not, for the first time on appeal, assert that the September 7, 1994, bond reinstatement was defective; 3) the trial court properly denied appellant’s motion because there was sufficient excuse for Salazar’s nonappearance on March 17, 1995, to stay the forfeiture until March 31, 1995; and 4) the trial court properly denied appellant’s motion because notice of the March 31, 1995, forfeiture was mailed in accordance with section 1305.
Discussion
An order denying a motion to set aside a forfeiture is appealable. (§ 1308; People v. Rolley (1963) 223 Cal.App.2d 639 [35 Cal.Rptr. 803]; County of Los Angeles v. Resolute Ins. Co. (1972) 22 Cal.App.3d 961 [99 Cal.Rptr. 743].) Also, a summary judgment not entered in accordance with the consent given in the bond is appealable. (People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216 [119 Cal.Rptr. 917].)
We restate the issues as we see them. May the trial court discharge its statutory duty by sending notice of forfeiture to the surety at its agent’s address shown on the bond, when the court has in hand the surety’s notices that it severed relations with that agent and that it moved to a new address? Further, is a reinstatement of a bond effective against a surety if the wrong insurance company is named, and is that a jurisdictional defect that can be challenged at any time?
As a preliminary matter we note the standard of review on appeal. The determination of a motion to set aside a bail forfeiture is in the discretion of the trial court and should not be disturbed on appeal unless an abuse of discretion appears in the record. (People v. United Bonding Ins. Co. (1970) 12 Cal.App.3d 349, 353 [90 Cal.Rptr. 714].)
The statutes applicable to this case are sections 1305 and 1306. Section 1305 provides in pertinent part: “(a) A court shall declare forfeited the undertaking of bail... if, without sufficient excuse, a defendant fails to appear for any of the following: [