COUNTY OF LOS ANGELES v. SURETY INSURANCE COMPANY OF CALIFORNIA (1985)

Surety Insurance Company of California (Surety) appeals the granting of a “summary judgment on bail bond forfeiture” by the Los Angeles County Superior Court.

Because the trial court properly interpreted the applicable statutory scheme and recent apposite cases, the judgment is affirmed.

PROCEDURAL AND FACTUAL BACKGROUND

On May 21, 1982, a Surety bail bond in the amount of $50,000 was posted for the release of one Orlando Ortiz (Ortiz), who was charged with a felony violation of Health and Safety Code section 11352 and was to appear for a preliminary hearing in the municipal court on a date certain.   The bond was posted with the Los Angeles Municipal Court on May 24, 1982.

On July 9, 1982, the date set for the preliminary hearing, Ortiz failed to appear, and the court minutes indicated:

“B/W issued and held to 7/16/82 ․ for defendant Ortiz who reportedly had dates mixed up.   Defendant nonappearance is excused.”

On July 16, 1982, Ortiz appeared, and was thereafter held to answer and ordered to appear in the superior court, with the same bail bond to stand.

On October 14, 1982, Ortiz failed to appear for arraignment in the superior court.   A bench warrant was issued and ordered held until October 19, 1982.

On October 19, 1982, Ortiz appeared and the matter was continued to December 6, 1982.   On December 6, 1982, when Ortiz again failed to appear, the bail bond was ordered forfeited.

Notice of forfeiture was mailed to Surety on December 13, 1982.   Summary judgment on the bail bond forfeiture was entered against Surety on September 14, 1983.   Surety's motion to vacate the forfeiture was denied, and Surety filed its notice of appeal on September 21, 1983.

CONTENTIONS

Surety contends the judgment should be reversed because:  (1) written approval of a bail bond is required to obligate the surety;  (2) failure of the courts to expressly excuse the nonappearances foreclosed the right to thereafter declare a forfeiture;  and (3) failure of the court to timely enter the summary judgment exonerated the bail bond.

DISCUSSION

1. Written approval by a court not a condition precedent to the validity of a bail bond.

a. Statutory scheme.

Surety contends that because forfeitures are generally disfavored in the law, statutes must be strictly construed so as to avoid a forfeiture.   As a general proposition, this contention is supported by case law.  (Burtnett v. King (1949) 33 Cal.2d 805, 807, 205 P.2d 657.)

Relying on this maxim and Penal Code section 1269a, Surety argues that section requires written approval by the court to obligate the bond.   Its argument fails to consider subsequently adopted law.¹

Although section 1269a adopted in 1929 and amended in 1933, uses language to the effect that no defendant shall be discharged from custody on bail except on a written order of a court approving the undertaking, the section is limited by its opening phrase, “[e]xcept as otherwise provided by law.”   Section 1269b was added in 1945 and amended as recently as 1980, and expands on the concept set forth in section 1269a.

Surety recognizes section 1269b was added many years later, but presses its argument that its provisions do not alter the requirement of a written approval by the court.

To the contrary, section 1269b, including subdivisions (a) through (f), sets forth an up-to-date bail release scheme which takes into consideration the tremendous increase in arrestees and the limited personnel available to deal with their speedy release on bail.

Section 1269b, subdivision (a) allows an officer or other employee of a custodial facility, or a court, to approve and accept bail in an amount fixed by the arrest warrant or bail schedule, to issue and sign a release order, and to set an appearance date.²

Section 1269b, subdivision (b), indicates that if a defendant appears before a judge, the bail shall be in the amount fixed by said judge, but if no appearance has been made, the bail shall be in the amount fixed in the arrest warrant, or if none was issued, in the amount set forth in the uniform countywide bail schedule.

Section 1269b, subdivision (c), mandates the superior, municipal and justice court judges of a county “to prepare, adopt, and from time to time revise” an uniform countywide schedule of bail for all bailable felony offenses.   Section 1269b, subdivision (d), requires similar action be taken for misdemeanors and infractions.

Section 1269b, subdivision (e), directs that each such bail schedule shall contain a list of offenses and the amounts of bail applicable, and a copy sent to the officers in charge of the custodial facilities, and to the Judicial Council.   Section 1269b, subdivision (f) states that upon posting such bail, the arrestee shall be discharged from custody.   Section 1269b, subdivision (g) refers to the Penal Code sections that apply if there is a failure to appear.

 These provisions make it clear that the Legislature was authorizing countywide court adoption and approval of bail amounts and release procedures, in lieu of the cumbersome and slow individualized written court approval in each case, which Surety claims is still contemplated by section 1269a.   The procedures of section 1269b are eminently reasonable, and withstand the strict construction analysis in forfeiture cases requested by Surety and required by case law.  (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 904–906, 98 Cal.Rptr. 57, 489 P.2d 1385.)

2. Failure of the court to expressly excuse Ortiz's nonappearances does not foreclose the right thereafter to declare a forfeiture.

In making its contention that the failure of the minutes of the municipal court, and later those of the superior court, to reflect the courts' expressly excusing Ortiz's nonappearance precludes any right thereafter in the court to declare a forfeiture, Surety relies on superceded section 1305, subdivision (a), an inapposite case, and a tenuous argument.

In accordance with the statutory scheme discussed above, section 1269b, subdivision (g) states that if an arrested person fails to appear as ordered, the provisions of sections 1305 and 1306 shall apply.³

Prior to a 1970 amendment, section 1305, subdivision (a), provided that if without sufficient excuse, the defendant neglects to appear, the court must enter that fact in its minutes, and the bail bond must thereupon be declared forfeited.

In the case relied on by Surety, People v. United Bonding Ins. Co., supra, 5 Cal.3d at p. 907, 98 Cal.Rptr. 57, 489 P.2d 1385, the court was dealing with a 1968 order of forfeiture to which section 1305, subdivision (a), was applicable, when it held:  “Court minutes which fail to disclose that the court has expressly excused a nonappearance on a record which is silent as to defendant's reasons therefor, will require a reviewing court to conclude that a nonappearance was without sufficient excuse and that the right to declare a forfeiture not having been exercised was foreclosed.   An excused nonappearance, accordingly, should be expressly reflected in the minutes.”

However, in 1969, section 1305 was amended by the addition of subdivision (b), giving the court more leeway when a defendant failed to appear.   The new subdivision set forth that if without sufficient excuse the defendant neglects to appear, but the court has reason to believe a sufficient excuse may exist, the court may continue the case for a reasonable period to enable the defendant to appear without ordering a bail forfeiture or issuing a bench warrant.

Nothing in the language of the amendment speaks to continuing to require that the “excuse” be expressly reflected in the court minutes.   Further, there is no reason to graft the United Bonding Ins. Co. rationale to the new section, as suggested by Surety.   The clear language thereof indicates a legislative intent to allow the courts more discretion in dealing with nonappearing defendants and bail bond forfeitures.

 Whether a given court has “reason to believe” as now provided by section 1305, subdivision (b), must be evaluated in each instance, in order to protect the rights of the bail bond about which Surety rightfully expresses concern.

The effect of section 1305, subdivision (b) was analyzed in People v. Wilshire Ins. Co. (1975) 53 Cal.App.3d 256, 261, 125 Cal.Rptr. 529:  “By its terms, the amendment allows the court to continue the hearing without declaring a forfeiture if it ‘has reason to believe that sufficient excuse may exist for his neglect to appear․’  It does not require the court to make an immediate determination as to whether sufficient excuse exists.   This specific authorization to continue the hearing reflects a vital change from the pre-existing law which the Supreme Court interpreted in United Bonding.   By conspicuously deleting from subdivision (b) the express provisions retained in subdivision (a) to the effect that ‘the court shall direct the fact [of failure to appear] to be entered upon its minutes, ․’ the Legislature intended the very simple alternative of a reasonable continuance without any specific minute order.   Since the court is thus specifically authorized by the amendment to postpone its decision, it certainly retains jurisdiction to declare a forfeiture at a later time.”

Also, in People v. National Auto. & Cas. Ins. Co. (1977) 77 Cal.App.3d Supp. 7, 8–9, 143 Cal.Rptr. 540, the court, in determining that the date the court sets for a defendant to appear controls over the date on a bond for subsequent forfeiture purposes, stated that either the sufficient excuse must appear in the minutes, or be reasonably believed by the court to exist under section 1305, subdivision (b).

Applying the statutory and case law to the fact situation here, the record discloses no error.   On July 9, 1982, when Ortiz failed to appear in municipal court, the minutes reflect that Ortiz “reportedly had dates mixed up” and the “nonappearance is excused.”   When Ortiz failed to appear for arraignment in the superior court on October 14, 1982, a bench warrant was issued and ordered held until October 19, 1982.

 Granted, on July 9, Ortiz was not in court personally to report a mix-up in dates.   However, some credible representation must have been made on his behalf on which the court relied.   The record provided for this court's review is silent as to what occurred on October 14, to cause the court to hold the warrant and continue the matter.   However, it is presumed the lower court regularly performed its official duty, and therefore the judgment of the lower court is presumed correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent.   Error must be affirmatively shown.  (Evid.Code, § 664;  People v. Justice (1954) 125 Cal.App.2d 572, 574, 270 P.2d 859;  see Walling v. Kimball (1941) 17 Cal.2d 364, 373, 110 P.2d 58;  Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.)

 Therefore, we assume the superior court likewise had evidence that a sufficient excuse may exist for Ortiz's neglect to appear when it granted the continuance.  (People v. Wilshire Ins. Co., supra, 53 Cal.App.3d 256, 125 Cal.Rptr. 529.)

3. The court timely entered the summary judgment.

The statutory scheme also provides for the forfeiture of the bail bond.  (§§ 1305, 1306.)   Section 1305, subdivision (a) requires that if, without sufficient excuse, the defendant fails to appear, the bail bond must be forfeited, and that fact entered in the minutes and notice thereof mailed to the surety.   The surety has 180 days after such entry in the minutes or after the mailing of such notice, to present the defendant, or make a showing, to satisfactorily excuse the failure to appear, and to request the forfeiture be discharged.

This section also provides that no order discharging the bail bond shall be made without an opportunity for the prosecuting attorney to be heard on notice given by the surety pursuant to Code of Civil Procedure section 1010 within the 180 days.⁴  Code of Civil Procedure section 1010 requires notices to be in writing, and the written notice of a motion must include the date, grounds, and papers, if any.

Section 1306 provides for the enforcement of the forfeiture by summary judgment.   Section 1306, subdivision (a) sets forth that when a bail bond is forfeited and not thereafter set aside, the court shall enter a summary judgment against the bondsperson.   Section 1306, subdivision (b) warns that if the court does not enter the summary judgment “within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated.”

The issue presented here is whether the trial court was correct in ruling that a court also has five extra days to enter judgment because a surety gets an extra five days in which to file a motion to vacate a forfeiture, under Code of Civil Procedure section 1013.⁵  Code of Civil Procedure section 1013 provides for an extension of time by five days for exercising a right of performing an act in case of service by mail in California.

In People v. National Auto. & Cas. Ins. Co. (1979) 92 Cal.App.3d 907, 155 Cal.Rptr. 602, the court held that the five-day extension provided for in Code of Civil Procedure section 1013 worked to add five additional days to the 180 days within which the surety must make a motion to vacate an order forfeiting a bail bond.   Therefore, the court affirmed a ruling granting the motion of the defendant insurance company made on the 181st day, which insurance company received notice of entry of forfeiture by mail, to vacate the order forfeiting the bail bond and allowing exoneration thereof.  (Id., at p. 912, 155 Cal.Rptr. 602.)

The National Auto. & Cas. Ins. Co. court analyzed the statutory scheme and agreed the time limits for setting aside a bail forfeiture are jurisdictional, citing People v. Black (1961) 55 Cal.2d 275, 277, 10 Cal.Rptr. 459, 358 P.2d 915 and People v. Wilshire Ins. Co. (1975) 45 Cal.App.3d 814, 817, 119 Cal.Rptr. 702, but indicated the crucial question presented was what jurisdictional time limit applied.   It then reasoned, “[b]y virtue of the five-day extension provision of Code of Civil Procedure section 1013, the time here was 185 days.   Through the reference to Code of Civil Procedure section 1010 in Penal Code section 1305, the five-day extension is applicable to these proceedings.”  (People v. National Auto. & Cas. Ins. Co., supra, 92 Cal.App.3d at p. 911, 155 Cal.Rptr. 602.)

The result reached in National Auto. & Cas. Ins. Co. is logical.   It observed that Code of Civil Procedure section 1010 is referred to in section 1305, subdivision (a), and that while Code of Civil Procedure section 1013 is not referred to in section 1305, subdivision (a), it is contained in the same chapter as Code of Civil Procedure section 1010, and is applicable likewise.  (People v. National Auto. & Cas. Ins. Co., supra, 92 Cal.App.3d at p. 910, 155 Cal.Rptr. 602.)   Therefore, the court held the surety in National Auto. & Cas. Ins. Co. had an additional five days to act when the notice of forfeiture was served on it by mail.  (Id., at p. 912, 155 Cal.Rptr. 602.)

 The court's rationale is equally applicable to enlarge the time a court has to enter summary judgment.   If the 180 days for discharging a forfeiture does not start until after the five days added by Code of Civil Procedure section 1013, it reasonably follows that the 90-day period for entry of summary judgment is simply to be added to the 185 days.

In this case, the bail was forfeited on December 6, 1982, but the notice of forfeiture was not mailed until December 13, 1982.   The summary judgment was entered on September 14, 1983.   Figuring from the date of December 13, 1982, the 180 days ran on June 11, 1983.   The subsequent 90-day period ended on September 9, 1983.

 Because the notice was given by mail, the period within which Surety had to move to discharge the forfeiture, and the court had to enter the summary judgment, was automatically extended by the five days provided for in Code of Civil Procedure section 1013.   Thus, the 185 days ended June 16, 1983 and the 90 days thereafter expired September 14, 1983, making the entry of the summary judgment on September 14, 1983 exactly timely.

Therefore, pursuant to the above discussion, we affirm the trial court's finding that the entry was timely.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Penal Code section 1269a, states in pertinent part:  “Except as otherwise provided by law, no defendant ․ shall be discharged from custody upon bail except ․ where an undertaking is furnished, upon a written order of [a] 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.”Hereinafter, all code references are to the Penal Code, unless otherwise indicated.

2.   Section 1269b sets forth in pertinent part:  “(a) The officer in charge of a jail ․, an officer of a sheriff's department or police department ․ in charge of a jail ․, an employee [thereof] ․ assigned ․ to collect bail, the clerk of the justice or municipal court ․ [or] the superior court ․ shall have the authority to approve and accept bail in such amount as fixed by the warrant of arrest or schedule of bail ․ in cash or surety bond ․, 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․  [¶] (b) If a defendant has appeared before a judge of the court ․ the bail shall be in the amount fixed by such judge at the time of such appearance;  if no such appearance has been made, the bail shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail for the county in which the defendant must appear, ․  [¶] (c) It is the duty of the superior, municipal and justice court judges in each county to prepare, adopt, and from time to time revise, ․, a uniform countywide schedule of bail for all bailable felony offenses.  [¶] (d) It is the duty of the municipal and justice court judges in each county to prepare, adopt, and from time to time revise, ․, a uniform countywide schedule of bail for all misdemeanor and infraction offenses.  [¶] (e) Each countywide bail scheduled shall contain a list of such offenses and the amounts of bail applicable thereto․  If the schedules do not list all offenses specifically, they shall contain a general clause for designated amounts of bail․  A copy ․ shall be sent to the officer in charge of the county jail, ․ each city jail within the county, to each superior, municipal and justice court judge and commissioner ․, and to the Judicial Council.  [¶] (f) Upon posting such bail the defendant or arrested person shall be discharged from custody․  [¶] (g) If a defendant or arrested person so released fails to appear ․, the provisions of Sections 1305 and 1306 shall apply.”

3.   Section 1305 states in pertinent part:  “(a) If, without sufficient excuse, the defendant neglects to appear ․, the court must direct the fact to be entered upon its minutes, and the undertaking ․, must thereupon be declared forfeited, and, if the amount of the forfeiture exceeds one hundred dollars ($100), the clerk of the court shall, promptly upon entering the fact of such failure to appear in the minutes, mail notice of the forfeiture to the surety ․, and shall execute a certificate of such mailing and place it in the court's file in the case․  If the clerk fails to mail such notice within 30 days after such entry, the surety ․ shall be released from all obligations under the bond.  [¶] But if at any time within 180 days after such entry in the minutes or, if mailing of notice of forfeiture is required, within 180 days after mailing ․, the defendant and his bail appear, and satisfactorily excuse the defendant's neglect ․, the court shall direct the forfeiture of the undertaking ․ to be discharged upon such terms as may be just, [and] may order the bail reinstated and the defendant released again on the same bond.   If ․, the bail should surrender the defendant to the court or to custody, the court shall direct the forfeiture of the undertaking ․ to be discharged upon such terms as may be just.  [¶] ․  [¶] Unless waived by the district attorney or other prosecuting attorney, no order discharging the forfeiture of the undertaking ․ shall be made without opportunity for hearing and the filing of a notice of motion for such order setting forth the basis for relief, with proof of service upon the district attorney or other prosecuting attorney at least 10 days prior to the time set for hearing of the motion and otherwise in compliance with the provisions of Section 1010 of the Code of Civil Procedure․  Such notice of motion must be filed within 180 days after such entry in the minutes or mailing as the case may be, and must be heard and determined within 30 days after the expiration of such 180 days, unless the court for good cause shown, shall extend the time for hearing and determination.  [¶] (b) If, without sufficient excuse, the defendant neglects to appear ․, but the court has reason to believe that sufficient excuse may exist for his neglect to appear ․, the court may continue the case for such period as it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant.”  (Second emphasis added.)Section 1306 states in pertinent part:  “(a) When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture, regardless of the amount of the bail, shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound․  [¶] (b) If, because of the failure of any court to promptly perform the duties enjoined upon it pursuant to this section, summary judgment is not entered within 90 days after the date upon which it may first be entered, the right to do so expires and the bail is exonerated.”

4.   Code of Civil Procedure section 1010 sets forth in part:  “Notices must be in writing, and the notice of a motion, ․ must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”

5.   Code of Civil Procedure section 1013 provides in application:  “(a) In case of service by mail, ․ The service is complete at the time of the deposit, but any prescribed period of notice and any right or duty to do any act or make any response within any prescribed period or on a date certain after the service of such document served by mail shall be extended five days if the place of address is within the State of California, ․”

KLEIN, Presiding Justice.

LUI and DANIELSON, JJ., concur.