Case Law
Right of time extension in bail forfeiture PDF Print E-mail
In People v. Fairmont Specialty Group , 2008 WL 4697084 (Cal.App. October 27, 2008) the defendant was released with a notice to appear on October 27.  The court clerk rescheduled the appearance to October 31.  The defendant failed to appear on October 31, and the court forfeited the bond.  The surety obtained one 90 day extension of the appearance period, but the court refused to consider the merits of the surety's motion for another extension.  The Court of Appeals held that the court clerk had the power to reschedule the hearing, the defendant's appearance was not required on October 27, and the court did not lose jurisdiction by not forfeiting the bond on that date.  The trial court's denial of the surety's second motion to extend the appearance period, however, was an abuse of discretion because the court did not consider the merits of the request or the facts put forward by the surety to justify the additional extension.  The trial court seemed to think that there was time left in the appearance period and that the best way to gain a quick recovery of the defendant was to deny any further extension.  The surety's counsel explained that if the appearance period were not extended there was no reason for the surety to continue looking for the defendant, but the court did not want to hear the facts.  The Court of Appeals reversed the judgment and remanded the case for reconsideration of the surety's motion to extend the appearance period.
 
Surrender of Defendant & Return of Premium PDF Print E-mail

This week the Second Appellate District Court of California overturned a lower court's decision and ruled in favor of Indiana Lumbermens Mutual Insurance Company in the matter of ILMIC v. Alexander.  The lower court ruled Alexander was entitled to the return of premium after ILMIC, through its agent Montana Bail Bonds, surrendered Alexander after he had been taken into custody in Los Angeles County on outstanding warrants from Texas.  The Court of Appeals rejected the lower court's ruling saying because the surety surrendered the bond after the court remanded the defendant to custody the premium could not and should not be refunded.  This is a published decision and one very favorable to commercial bail.  The court's decision can be found below in its entirety.

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

 

 

INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY et al.,

 

            Plaintiffs and Appellants.

             v.

 ANAND JON ALEXANDER,

                         Defendant and Respondent,

 

      B200551

 

      (Los Angeles County

      Super. Ct. No. SA063332)

 

 

            APPEAL from an order of the Superior Court of Los Angeles County.  Elden S. Fox, Judge.  Reversed.

            Nunez & Bernstein and E. Alan Nunez, for Plaintiffs and Appellants.

             Marks & Brooklier, Donald B. Marks and Elizabeth M. Roos, for Defendant and Respondent.
__________________________

Indiana Lumbermens Mutual Insurance Company and Montana Bail Bonds appeal from the trial court's order compelling them to refund the premium they received to post a bail bond for Anand Jon Alexander.  We reverse the court's order.

 FACTS AND PROCEEDINGS

              Respondent Anand Jon Alexander was arrested in March 2007 and charged with four counts of rape, lewd acts against a child, and contributing to the delinquency of a minor.  On April 3, 2007, appellants Indiana Lumbermens Mutual Insurance Company and Montana Bail Bonds (collectively Indiana Lumbermens) posted a bail bond in the amount of $1,365,000 to secure Alexander's release from custody.  Alexander's family paid $139,210 for the bond.  The bail agreement stated appellants "fully earned" the $139,210 premium upon Alexander's release from jail.  Additionally, the family members who paid the premium signed a document attesting they "understand that the premium owing and/or paid on this bond is fully earned upon release of the defendant from custody."

            While Alexander was free on bail, the People filed 40 new counts against him, involving rape, forcible oral copulation, sexual battery, and lewd acts against minors.  In addition, the trial court received from Texas a warrant for Alexander's arrest.  The court denied the People's motion to raise Alexander's bail based on the 40 new charges.  The court did, however, remand Alexander into custody for the Texas warrant.  The day after Alexander's return to custody, Indiana Lumbermens instructed its general agent in California to surrender the bail bond it had posted on Alexander's behalf, and within two days the agent did so.  The court thereafter exonerated the bond.  (People v. McReynolds (1894) 102 Cal. 308, 311-312 [defendant's return to custody exonerates bond]; People v. Lexington National Ins. Co. (2007)147 Cal.App.4th 1192, 1198-1199.)

            Following his remand into custody, Alexander moved for a court order compelling appellants to refund the premium his family had paid for his bail bond.  The court set a hearing to show cause why it should not grant Alexander's motion.  In setting the hearing, the court told Alexander, "I've done this before, and based on your motion, I would intend to order a full and complete refund of any premium if it has not been reinstated, so I would advise you that's what I would do."

            At the hearing to show cause, appellants argued the court should not order a refund of the premium because they earned it upon Alexander's release from custody.  They noted Alexander had been returned to jail at the court's initiative, not theirs, following the court's receipt of the Texas arrest warrant; only after the court had remanded Alexander into custody did they surrender the bail bond which had secured his freedom during the previous two months.  The court rejected appellants' argument and ordered them to refund the entire premium.  This appeal followed.

 DISCUSSION

             The bail bond here was a contract under which appellants guaranteed to the trial court that Alexander would appear for his court dates.  (People v. Ranger Ins. Co. (1994)31 Cal.App.4th 13, 22.)  Because appellants were at risk for paying the entire posted bail if Alexander absconded at any time, the law permitted appellants to make the premium nonrefundable.  (Kiperman v. Klenshetyn (2005)133 Cal.App.4th 934, 939 (Kiperman).)   Exercising their prerogative, appellants' bail agreement with Alexander stated appellants earned their premium immediately upon his release from custody. 

            Although a bail bond may secure a defendant's freedom, a bonding company has the statutory right to surrender its bond at any time to return a defendant to the court's custody.  (Pen. Code, § 1300, subd. (a).)  Whenever a bonding company exercises that right without good cause, however, Penal Code section 1300, subdivision (b) (section 1300(b)) permits the court to order the bonding company to refund the defendant's premium.  Section 1300(b) states:

            "[I]f the court determines that good cause does not exist for the surrender of a defendant who has not failed to appear or has not violated any order of the court, it may, in its discretion, order the bail or the depositor to return to the defendant or other person who has paid the premium or any part of it, all of the money so paid or any part of it."

Section 1300(b)'s purpose is to temper the bonding company's virtually unlimited power over the defendant's freedom.  (Kiperman, supra, 133 Cal.App.4th at p. 939.)  By constraining the bonding company, the statute prevents the inequity of a bonding company's pocketing a defendant's premium, only to turn around and hand the defendant back to the authorities.  (See People v. Smith (1986)182 Cal.App.3d 1212, 1217.)

            Alexander asserts the court found appellants lacked good cause to surrender his bond.  Thus, Alexander concludes, the court properly exercised its discretion under section 1300(b) to order a refund of his bond premium.  Appellants contend, on the other hand, that the court abused its discretion in relying on section 1300(b) because appellants did not surrender Alexander into custody since he was already in custody on the Texas warrant when they surrendered the bond.

Kiperman, supra,133 Cal.App.4th 934 shows appellants are correct.  In Kiperman, the trial court remanded into custody a defendant previously free on bail when the court increased the defendant's bail after the People filed new charges against him.  (Id. at p. 936.)  Following the defendant's return to custody, the trial court ordered the bonding company to refund the premium the defendant had paid for his bail bond.  (Id. at pp. 936, 939.)  On review, the appellate court found the trial court lacked authority to order a refund because the trial court, not the bonding company, had returned the defendant to custody.  Kiperman explained:

            "[The bonding company] did not actually surrender the defendant . . . .  Rather, it was the trial court that caused the defendant to return to custody due to the new stalking charge and the consequent increase in bail . . .  It was no fault of the [bonding company] that the defendant was back in custody . . . .  The authority in section 1300 for the court to consider return of the premium applies only where the [bonding company] has surrendered the defendant to custody without adequate good cause."  (Kiperman , at p. 940.)

Because section 1300(b) did not apply, the Kiperman trial court abused its discretion in ordering a refund of the bond premium.  Kiperman stated:

             "Where, as here, there was no surrender by the [bonding company] since the defendant was returned to custody by the court's action in raising the bail and remanding the defendant, the court had no statutory authority to exercise any discretion regarding the premium.  Accordingly, the trial court abused its discretion by . . . ordering return of the premium paid by the defendant on that bond."  (Kiperman, at p. 940.)

            The Kiperman defendant eventually resecured his release by posting a second bond.  (Kiperman, 133 Cal.App.4th at pp. 936, 940.)  The bonding company later surrendered the defendant and the second bond when it learned of the defendant's plans to flee California.  (Id. at pp. 937, 940.)  Seizing on that twist in the case, Alexander attempts to distinguish Kiperman because  no evidence exists here that Alexander was preparing to flee.  Alexander's distinction fails, however, because it ignores the Kiperman court's conclusion that the trial court erred in ordering a refund of the first bond premium after the trial court remanded the Kiperman defendant into custody.  Alexander's similarity with the defendant in Kiperman rests on each of them having been returned to custody at the initiative of their respective trial courts; the bonding company's later surrender of the defendant in Kiperman-whether for good cause or not-has no bearing here because appellants did not surrender Alexander. [1]

 DISPOSITION

             The court is directed to reverse and vacate its order compelling Indiana Lumbermen's Insurance Company and Montana Bail Bonds to refund the premium they received for posting a bail bond on behalf of Anand Jon Alexander.  The court is directed to enter a new and different order denying Anand Jon Alexander's motion for a refund.  Appellants to recover their costs on appeal.

CERTIFIED FOR PUBLICATION

                                                                            

[1]           Alexander's respondent's brief asks that we remand this matter to the trial court for an evidentiary hearing on the bail bond's validity if we reverse the trial court's order refunding his premium.  He appears to reason that an alternative ground for ordering a refund is the bond's purported voidness.  Alexander has not, however, supported his request with a cogent argument supported by citations to the record and legal authority.  We therefore pass on his request without further consideration and without deciding whether the trial court may decide the point at this juncture.  (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)


 
 
Excessive Bail? PDF Print E-mail
In Hernandez v. Carbone, 2008 WL 2900932 (D.Conn. July 29, 2008) an indigent defendant, against whom charges were ultimately dropped, spent a year in jail because he could not post a $100,000 bond.  He sued, among others, the Executive Director of the Connecticut Court Support Services Division (CSSD) arguing that requiring cash or surety bonds from an indigent defendant was unconstitutional.  The court granted the Executive Director's motion to dismiss.  The trial court, not CSSD, set the $100,000 bail and refused to reduce it.  No act of the Executive Director, therefore, caused the alleged harm to the plaintiff for purposes of his federal civil rights claims.  The court declined to exercise jurisdiction over any state law claims or to interfere with the administration of bail by the Connecticut courts because the state court system provided more than adequate opportunities for a defendant to challenge his bail.  The court was careful, however, to say that it was not deciding the merits of the plaintiff's claims and he was free to assert them in a state court suit.
 
Forfeiture Voided Because Client Was Without Excuse PDF Print E-mail
In People v. American Contractors Indemnity Co., 2008 WL 2897292 (Cal.App. July 29, 2008) the defendant failed to appear, the court first declared a forfeiture, then vacated its order and continued the case.  The defendant again failed to appear but the case was continued without any indication in the record that his failure to appear was excused.  He appeared on several more court dates but ultimately failed to appear and the bond was forfeited.  After one extension of the appearance period, the court denied a further extension and entered summary judgment.  On the surety's appeal, the court did not reach the surety's claims based on lack of notice after the first, vacated forfeiture or refusal to extend the appearance period because it reversed the judgment and exonerated the bond based on the trial court's failure to forfeit the bond on the occasion of the second failure to appear.  There was no finding of sufficient excuse and nothing in the record to indicate why the defendant failed to appear, therefore the court had to declare a forfeiture in open court or lose jurisdiction to do so at a later date.  Since no forfeiture was declared at that time, the later forfeiture was void.  [Not Published].
 
Forfeiture Remission When Client Is Found In Mexico PDF Print E-mail
In re Forfeiture in the Amount of $10,000, 2007 WL 5369150 (Ariz.App. July 10, 2007) affirmed the trial court's exercise of its discretion not to remit any portion of a bond forfeiture.  The defendant failed to appear and the court issued a bench warrant.  Several months later, the court held a hearing on the state's application for a rule to show cause why the bond should not be forfeited.  The defendant had fled to Mexico, but the surety located him there and brought him to the U.S. border.  While the defendant was at U.S. Customs, they called the local police who did not locate the warrant and did not arrest the defendant.  The court held that the bond was properly forfeited because forfeiture is based on the defendant's actions, not the surety's, and here the defendant willfully fled to Mexico.  On the issue of remitting all or any part of the forfeiture, the trial court has discretion.  The trial court considered the surety's unsuccessful efforts to return the defendant to custody and the other factors required, and thus did not abuse its discretion in refusing to remit any of the forfeiture.
 
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