Barbara v. American Surety
Filed 11/14/13 County of Santa Barbara v. American Surety CA2/6
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
COUNTY OF SANTA
BARBARA,
Plaintiff and
Respondent,
v.
AMERICAN SURETY COMPANY,
Defendant and
Appellant.
2d Civil No.
B238601
(Super. Ct. No.
1363847)
(Santa
Barbara County)
American Surety Company
(American) appeals from an order denying its motion to vacate a $1 million bail
forfeiture and exonerate two $500,000 bail bonds that were posted on
behalf of Randall Rudy Quaid and Evegenia Helena Quaid (Randy and Evi,
respectively) after they fled to Canada.
(Pen. Code, § 1305.)
name="_ftnref1" title="">[1] American claims that the bail bonds are void
released from "custody" in exchange for the posted bond amount.
We reverse and remand
with directions to enter a new order to vacate Randy's bail forfeiture and
exonerate his $500,000 bail bond. Bail
was forfeited nunc pro tunc in violation of section 1305, subdivision (a). The order denying American's motion to vacate
Evi's bail forfeiture and exonerate her $500,000 bail bond is affirmed.
FACTS
On September 18, 2010,
the Quaids were arrested for felony vandalism (§ 594, subd. (b)(1)) after
they allegedly entered a private residence and destroyed property in excess of
$5,000 in value. American's agent, Biker
Bail Bonds, posted $50,000 bail each for the Quaids' release on September 19,
2010.
Failure to Appear: Bench Warrant
When the Quaids failed
to appear at the October 18, 2010 arraignment, the trial court issued $50,000
Quaids' attorney, Robert Sanger, requested a continuance. Granting that request, the trial court
continued the arraignment to October 26, 2010. Although the minute order states that the
September 19, 2010 bail was "forfeited," the court did not declare the
forfeiture in open court (§1305, subd. (a)).
Several days later, it
was learned that the Quaids were in Canada and detained by Canadian immigration
officials. On October 22, 2010, based on
their nonappearance and flight risk, the trial court granted the prosecution's
motion to increase their bail to $500,000 each.
$500,000 Bail Bonds
On October 26, 2010, attorney
Sanger appeared and stated that he had spoken to the Quaids. At counsel's request, the trial court
continued the arraignment to November 2, 2010, and ordered the $50,000 bench
warrants to remain outstanding. After
the hearing, American's agent, Santa Barbara Bail Bonds, posted a $500,000 bail
bond on each bench warrant.
On November 2, 2010, the
Quaids failed to appear. The trial court
ordered Evi's $500,000 bail forfeited. It
recalled Randy's bench warrant and ordered it held to November 16, 2010. (§ 1305.1.) On November 5, 2010, the trial court
reconsidered its ruling, found there was no good cause for Randy's nonappearance,
and ordered Randy's bail forfeited nunc pro tunc as of November 2, 2010.
On June 20, 2011, the
trial court granted American's motion to extend the time to return the Quaids
to custody (§ 1305.4) based on the prosecution's representation that it was
seeking their extradition. After the
United States Department of Justice declined to process the extradition
request, the trial court denied American's motion to vacate the bail forfeiture
and to exonerate the $500,000 bail bonds.
DISCUSSION
Because the facts are
not in dispute and the issue involves contract and statutory interpretation,
our review of the trial court's order is de novo. (People v. International Fidelity Ins. Co.
(2012) 204 Cal.App.4th 558, 592.)
American argues that the $500,000 bail bonds were void at their
inception because the Quaids were not in custody when the bonds were posted.
A bail bond is a
contract between the government and the surety in which the surety acts as a
guarantor of the defendant's appearance under risk of forfeiture of the
bond. (People v. Amwest Surety Ins.
Co. (2001) 87 Cal.App.4th 69, 71.)
"'. . . "In general the state and surety agree that if the
state will release the defendant from custody, the surety will undertake that
the defendant will appear personally and at a specified time and place . . .
. If the defendant fails to appear at
the proper time and place, the surety becomes the absolute debtor of the state
for the amount of the bond." [Citation.]' [Citation.]" (Ibid.)
American claims that
Quaids' fugitive status rendered the October 22, 2010 $500,000 bail order
void ab initio because the Quaids
were not in "custody." If that
was the law, every bail bond posted on a failure to appear bench warrant would
be void. It would repeal section 979 which
provides: "If the defendant has
been discharged on bail . . . , and does not appear to be arraigned
when his personal presence is necessary, the court, in addition to the
forfeiture of the undertaking of bail . . . , may order the issue of a bench
warrant for his arrest." Here the
Quaids did not appear at the October 18, 2010 arraignment and $50,000 bench
warrants issued pursuant to section 979.
Bail was increased to
$500,000 on October 22, 2010 after the trial court learned that the Quaids fled
to Canada. American complains that the
Quaids were not in the court's custody when their bond amounts were set and
posted.
The Quaids, however,
were already out on bail and in American's custody. "'When bail is given, the principal is
regarded as delivered to the custody of his sureties. Their dominion is a continuance of the
original imprisonment.' [Citations.]"
(People v. Lexington Nat. Ins. Co. (2007)
147 Cal.App.4th 1192, 1198.) The two
$50,000 bail bonds which were posted to get the Quaids out of jail were not
declared forfeited "in open court." (§ 1305, subd. (a)(1); Lexington, at fn. 2.) The court increased their bail pursuant to
section 985 which provides: "When
the information or indictment is for a felony, and the defendant, before the
filing thereof, has given bail for his appearance to answer the charge, the
Court to which the indictment or information is presented, or in which it is
pending, may order the defendant to be committed to actual custody, unless he
gives bail in an increased amount, to be specified in the order." Section 986 provides that if the defendant is
not present when the order is made, "a bench-warrant must be issued. . . ."
American acknowledges
that the trial court had authority to increase bail but argues that the court
could not "admit" the Quaids to bail until the court had custody of
the Quaids. Admission to bail is defined
as "the order of a competent Court or magistrate that the defendant be
discharged from actual custody upon bail."
(§ 1268.) But that occurred on
September 19, 2010, when American's agent, Biker Bail Bonds, posted bail for
the Quaids' release.
American bases its
appeal on the false premise that it has no surety obligation on the $500,000
bonds unless the Quaids were released from custody when bail was posted on October
22, 2010. Such a construction of the law
renders sections 985 and 986 null. It is
contrary to American's prior claim that the $500,000 bail bonds relieved it of
liability on the first bonds. That was
the ground for American's June 21, 2011 motion to exonerate the $50,000 bail
bonds which were posted to get the Quaids out of jail.
American assumed custody
of the Quaids on September 19, 2010, when they were released from jail. (See People v. McReynolds (1894) 102
Cal. 308, 311-312 ["responsibility of the sureties is based upon their
custody of the person bailed"]; People v. Amwest Surety Ins. Co. (1986)
180 Cal.App.3d 444, 447-448 [liability or surety ceases when defendant is
remanded to custody of sheriff]; People v. United Bonding Ins. Co. (1969)
274 Cal.App.2d 898, 902-904 [court released defendant on day after it ordered
bail forfeited without placing defendant in custody; bond surety remained
liable for defendant's nonappearance].) The
fact that the Quaids fled the state or were arrested in other proceedings
(i.e., the Canadian immigration proceeding) does not exonerate the bond
obligation. (County of Los Angeles v.
Maga (1929) 97 Cal.App. 688, 691.)
"[W]hen the People attempt to obtain extradition as they did in
this case, they have done all they can to bring the defendant before the court
and it is not unjust for the surety which has assumed the risk of the
defendant's nonappearance to bear the consequences." (People v. Ranger Ins. Co. (1998) 61
Cal.App.4th 812, 819.)
Nunc Pro Tunc
Forfeiture of Randy's Bail
American
argues that the nunc pro tunc forfeiture of Randy's $500,000 bail bond on
November 5 was void. We agree. Had the forfeiture been declared on November
2, as it was with Evi's bond, or on November 16 (§ 1305.1), it would have
been valid. Randy, however, was not
required to be present at the November 5 hearing. Therefore, the trial court could not "as
a matter of law validly declare a forfeiture under section 1305 based on [Randy's]
nonappearance at a hearing he was not 'lawfully required' to attend . . . .'" (People
v National Auto. & Casualty Ins. Co. (2004) 121 Cal.App.4th 1441,
1451.) The trial court's effort to
correct the matter as of November 2 by a nunc pro tunc order was equally
unavailing.
A
court cannot revive lapsed jurisdiction by the simple expedient of issuing an
order nunc pro tunc. (
5 Cal.3d 898, 904.) The court is
required to declare a forfeiture of bail "in open court" if a
defendant fails to appear at a "lawfully required" court proceeding. (§ 1305; 4 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 118, pp. 358-359; People
v. Allegheny Cas. Co. (2007) 41 Cal.4th 704, 706.) The failure to comply
with this statutory requirement results in the loss of jurisdiction to later
declare a forfeiture. (People v.
Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 550, 554.)
DISPOSITION
We reverse and remand
with directions to enter a new order to vacate Randy's bail forfeiture and to
exonerate his $500,000 bail bond. The
order denying American's motion to vacate Evi's bail forfeiture and exonerate
her bail bond is affirmed.
The
parties shall bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278 (a)(5).)
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Frank
J. Ochoa, Judge
Superior
Court County of Santa Barbara
______________________________
Law Offices of Brendan
Pegg, Brendan Pegg for Defendant and Appellant.
Dennis A. Marshall,
County Counsel, Sarah A. McElhinney, Deputy Counsel for Plaintiff and
Respondent.
name="_ftn1" title=""> [1]
All statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title=""> [2]
On June 20, 2011, the trial court granted American's motion to vacate the
forfeiture and exonerate the $50,000 bail bonds because the forfeiture was not
declared in open court as required by section 1305, subdivision (a)(1).
