COUNTY OF ORANGE v. SURETY INSURANCE COMPANY (1984)

OPINION

Defendant, Surety Insurance Company (Surety), appeals from a summary judgment entered on forfeiture of a bail bond and from an order denying its motion to vacate the forfeiture.

FACTS

On March 14, 1981, Surety posted its bail bond No. 10–52170 in the amount of $100,000 for the release of defendant Manuel Villafane Barrios, who was charged with a felony violation of Health and Safety Code section 11352 in Orange County Superior Court Case No. C–46553.

On November 12, 1982, the bail was ordered forfeited when the defendant failed to appear for pronouncement of judgment.   Notice of forfeiture was mailed to Surety and the bail agent on November 16, 1982.

On May 17, 1983, a summary judgment based on the forfeiture was entered in favor of respondent, County of Orange, and against Surety in the amount of $100,000.   Notice of entry of judgment was mailed to Surety on May 26, 1983.

In the meantime, Surety had filed a motion to vacate forfeiture and exonerate bail on May 17, 1983.   Hearing was had on Surety's motion on June 14, 1983.   In support of its motion, Surety argued that the bond in this case was void, and, as a result, the trial court was powerless to order its forfeiture.   Surety contended the bond was void because it had never been approved in writing by a person authorized to do so as required under the provisions of Penal Code sections 1269a and 1269b.¹

In denying Surety's motion, the trial court held Surety's failure to file its motion to vacate within 180 days of mailing notice of forfeiture, as required under section 1305, subdivision (a), precluded the court from considering the motion.

 On this appeal, Surety contends failure to comply with the requirement of section 1269a, that an undertaking be approved in a written order of a court or magistrate before a defendant is released from custody, renders the undertaking void.   We disagree.

Section 1269a provides as follows:

“Except as otherwise provided by law, no defendant charged in a warrant of arrest with any public offense shall be discharged from custody upon bail except upon a written order of a competent court or magistrate admitting the defendant to bail in the amount specified in the indorsement referred to in Section 815a, and where an undertaking is furnished, upon a written order of such court or magistrate approving the undertaking.   All such orders must be signed by such court or magistrate and delivered to the officer having custody of the defendant before the defendant is released.   Any officer releasing any defendant upon bail otherwise than as herein provided shall be guilty of a misdemeanor.”

Section 1269a does not relate to the effectiveness of a bail bond, but rather to the procedure to be followed before a defendant may be released from custody.   The section does not require written approval by the court before a bond is effective.   Rather, it requires a written order of court admitting the defendant to bail before he may be released from custody.   Section 1269 defines the “taking of bail” as “the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the people of this State a specified sum.”   The only writing required under section 1269 is upon filing of the undertaking, at which time the clerk is required to enter in the register of actions “the date and amounts of such bond and the name or names of the surety or sureties thereon.” ²

Section 1269b provides, in pertinent part, as follows:

“(a) The officer in charge of a jail where an arrested person is held in custody, an officer of a sheriff's department or police department of a city who is in charge of a jail or employed at a fixed police or sheriff's facility and is acting under an agreement with the agency which keeps the jail wherein an arrested person is held in custody, an employee of a sheriff's department or police department of a city who is assigned by such department to collect bail, the clerk of the justice or municipal court of the judicial district in which the offense was alleged to have been committed, and the clerk of the superior court in which the case against the defendant is pending shall have authority to approve and accept bail in such amount as fixed by the warrant of arrest or schedule of bail or order admitting to bail in cash or surety bond executed by a certified, admitted surety insurer as provided in the Insurance Code, to issue and sign an order for the release of the arrested person, and to set a time and place for the appearance of the arrested person before the appropriate court and give notice thereof.”

Contrary to Surety's assertions on appeal, section 1269b imposes no requirement for written acceptance of a bond before it is valid.   The section merely designates numerous officials who have authority to perform the ministerial function of approving and accepting bail as properly set in accordance with law.

Surety cites no authority for its contention that section 1269a must be interpreted to require written acceptance and approval of a bond by a magistrate, judge or other authorized person before the surety is obligated on the bond, and we find no support for that contention in the wording of the various sections upon which Surety relies.

The essence of the surety's obligation on a bail bond is contractual.   Here the defendant was, in fact, released on bail.   That the undertaking was not approved in writing before the defendant was released, does not absolve the surety from its contractual obligation to the People of the State of California.   In People v. Lepori (1917) 35 Cal.App. 60, 169 P. 692, a surety on a bail bond argued that the bond was void because it had not been acknowledged as provided for in section 1287.³  The surety relied on the fact the record contained no “certificate of acknowledgement.”   The court noted the Penal Code required only that the undertaking be “acknowledged before the court,” and then stated (Id., 35 Cal.App. at p. 62, 169 P. 692), “But even if the statute did require a certificate of acknowledgement, a plea of its absence would not, we think, avail appellant.   The code provides that bail must in all cases justify by affidavit (Pen.Code, secs. 1280, 1288), and yet it has been held that the justification forms no part of the contract, and its absence will not permit a bondsman to escape his liability.  [Citations.]  A parity of reasoning compels the conclusion that an acknowledgement is not part of the contract.”  (See, People v. Shirley (1861) 18 Cal. 121.)   Similarly, in the case before us, a written order approving the undertaking is not part of the contract which binds the surety and its absence will not permit the surety to escape his liability.

 The trial court properly found it had no jurisdiction to consider appellant's motion to vacate forfeiture and exonerate bail.   The provisions of section 1305 requiring that a motion to vacate bail forfeiture be filed within 180 days after entry of notice of forfeiture in the minutes or after mailing, if required, are jurisdictional.  (People v. Black (1961) 55 Cal.2d 275, 277, 10 Cal.Rptr. 459, 358 P.2d 915;  People v. Ramirez (1976) 64 Cal.App.3d 391, 398, 134 Cal.Rptr. 511.)

As noted, notice of forfeiture in this case was filed and mailed November 16, 1982.   The motion forming the basis of this appeal was filed May 17, 1982, 182 days after notice of forfeiture was filed and mailed.

As was so aptly stated by the court in People v. Wilshire Ins. Co. (1975) 45 Cal.App.3d 814, at page 818, 119 Cal.Rptr. 702:

“Appellants rely upon the general equitable principle that the law abhors forfeitures.   That basic principle has not been violated in the instant case.   The statute with which we are here dealing requires a forfeiture under specific conditions, and also provides for relief from the forfeiture under certain conditions.   The opportunity for relief provided for in section 1305 of the Penal Code has, in fact, been specifically equated by the courts to the equitable principle referred to, and the statute has been strictly construed to require the trial court to quickly issue its forfeiture order, and to notify the bondsman promptly upon the failure of the defendant to appear in order to afford the bondsman full use of the 180-day prescribed period to cure the forfeiture.  (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906 [98 Cal.Rptr. 57, 489 P.2d 1385].) ․  No miscarriage of justice has resulted.”

The summary judgment and the order denying appellant's motion to vacate forfeiture are affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise specifically indicated.

2.   The purpose of the clerk's entry is made clear from the following language from section 1269.  “In the event of the loss or destruction of such bond, such entries so made shall be prima facie evidence of the due execution of such bond as required by law.”

3.   Section 1287 provides in part as follows:“The bail must be put in by a written undertaking, executed by two sufficient sureties (with or without the defendant, in the discretion of the court or magistrate), and acknowledged before the court or magistrate, in substantially the following form:”  Thereafter follows a suggested form for the undertaking.

TROTTER, Presiding Justice.

WALLIN and SONENSHINE, JJ., concur.