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Court of Appeal, Second District, California.

COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. AMERICAN CONTRACTORS INDEMNITY COMPANY, Defendant and Appellant.


Decided: February 24, 2011

Nunez & Bernstein and E. Alan Nunez for Appellant. Office of the County Counsel, and Takin Khorram, Deputy County Counsel, for Respondent.


The trial court entered summary judgment against surety on forfeited bail bond.   Later, the court denied the bail bond company's motion to set aside summary judgment, vacate the bail forfeiture and exonerate bail.   The bail bond company appeals the order denying its motion to set aside summary judgment.   We affirm.


Milton Castillo was taken into custody for the possession of materials depicting a minor engaging in actual or simulated sexual conduct, knowing the person was a minor.  (Pen.Code, § 311.11, subd. (a).) 1  On October 11, 2007, American Contractors Indemnity Company issued a $20,000 bail bond, undertaking that Castillo would appear in court on November 1, 2007.   On October 12, 2007, American posted the bail bond.   Castillo was released.

On June 5, August 21, and October 2, 2008, Castillo appeared in the trial court at regularly scheduled hearings.   At the hearing on October 2, 2008, the court set a pretrial conference for December 4, 2008, and ordered Castillo to appear.

On December 4, 2008, Castillo's counsel appeared in court, but Castillo did not.   The trial court acknowledged Castillo's prior appearances, and continued the matter to December 11, 2008.

On December 11, 2008, Castillo appeared in court.   At that time, the court granted a motion for a continuance, and reset the pretrial conference for January 15, 2009.

On January 15, 2009, Castillo failed to appear.   The trial court ordered his bail forfeited, and issued a bench warrant.   On January 20, 2009, notice of bail forfeiture was served on American.   The notice provided:  “Your contractual obligation to pay this bond will become absolute on the 186[th] day following the date of the mailing of this notice unless the court shall order the forfeiture set aside and the bond reinstated.   You may within 185 days from the date of the mailing of this notice surrender the defendant to the court or to custody or appear in court to make a motion to set the forfeiture․”

On August 31, 2009 (more than 220 days after the date of the notice of forfeiture was served), the clerk of the trial filed an application for entry of summary judgment on forfeited bail, and the trial court entered summary judgment against surety on forfeited bail bond.   On September 1, 2009, the clerk of the trial court served Notice of Entry of Judgment and Demand for Payment on American.

On October 6, 2009, American filed a motion to set aside summary judgment, discharge forfeiture and exonerate bail.   American's motion argued the trial court lacked jurisdiction to enter summary judgment.   On November 25, 2009, the trial court denied American's motion.


American contends the trial court had a duty to declare a forfeiture of bail upon Castillo's failure to appear on December 4, 2008, because his failure to appear was without sufficient excuse.   American claims that the trial court's failure to do so deprived it of jurisdiction to declare a forfeiture of bail at a later date and that it was therefore required to exonerate bail.   We reject American's contention because its premise is wrong.   The record does not show, as a matter of law, that the trial court was under a duty to declare a bail forfeiture on December 4, 2008.

The law provides that a trial court “shall” declare a forfeiture of bail when the defendant fails to appear for a proceeding at which he or she is legally required to appear, “without sufficient excuse.” (§ 1305, subd. (a).)  At the same time, however, when a trial court “has reason to believe that sufficient excuse may exist for the failure to appear,” it may continue the case to enable the defendant to appear. (§ 1305.1.) The test to justify a continuance is not whether it is conclusively established that the defendant has a valid excuse for failing to appear;  the statute only requires the court to have a reason to believe that sufficient excuse may exist for the defendant's failure to appear.  (People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 953 (Ranger ).)   And, the published cases teach that a trial court is given wide discretion to “cooperate” with defense counsel's request to continue, and that a trial court may “liberally rely” on defense counsel's representations.   (People v. National Automobile & Cas. Ins. Co. (1977) 75 Cal.App.3d 302, 306.)   Each case presents its own unique set of circumstances, and the issue of whether a defendant has sufficient excuse must be decided on a case-by-case basis.  (People v. Harco National Ins. Co. (2005) 135 Cal.App.4th 931, 934.)

In the present case, Castillo appeared at every court hearing prior to the hearing on December 4, 2008, and the reporter's transcript of the December 4th hearing, in our view, shows that Castillo's counsel was surprised by Castillo's absence.   In light of this history, the trial court rationally could have had “reason to believe” that Castillo “may” have had a sufficient excuse for not appearing in court.

We agree with Respondent that the current case is similar to Ranger, supra, 108 Cal.App.4th 945, in which a trial court agreed to a continuance without a forfeiture of bail.   In Ranger, as in the current case, the defendant had regularly appeared for a number of court hearings before failing to appear.   On appeal, Division Seven of our court explained that the defendant's behavior over a several month period “provided [the trial court with] a ‘rational basis' for believing there might be a sufficient excuse for the defendant's absence.”  (Id. at p. 953, fn. omitted.)   We find the same rational basis for the trial court's decision on December 4, 2008, continuing the pretrial conference in the Castillo matter.   American's effort to distinguish Ranger does not persuade us to reach a different result.   Although it is true that defense counsel in Ranger had stated, “I'm afraid something may have happened to him,” (id. at p. 949) and that no similar expression of concern came from the mouth of Castillo's defense counsel (he was, however, surprised), we find this factual difference immaterial.   The dispositive factor, in our view, is that Castillo made regular court appearances before he missed a court appearance.   Upon Castillo's first miss, the court reasonably could have believed that he may have had a valid excuse.


The trial court's order of October 6, 2009, denying American's motion to set aside summary judgment entered August 31, 2009, and to exonerate bail, is affirmed.


We concur:




FN1. All further section references are to the Penal Code..  FN1. All further section references are to the Penal Code.

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