People v. Fin. Cas. & Sur., Inc.

222 Cal. Rptr. 3d 180, 14 Cal. App. 5th 127, 2017 WL 3404765, 2017 Cal. App. LEXIS 690
California Court of Appeal, 5th District·Decided August 8, 2017·No. A147808·Published·Cited by 21 cases

Opinion

RUVOLO, P.J.

*130I. INTRODUCTION

Appellant Financial Casualty & Surety Inc. (Financial Casualty) appeals from an order denying its motion to vacate forfeiture and exonerate a bail bond. Financial Casualty contends that, pursuant to Penal Code 1 section 1305, the trial court lost its jurisdiction over the bail bond by failing to declare a bail forfeiture when defendant *184failed to appear at his first hearing. Second, pursuant to section 1305, subdivision (d), it argues that performance of the bail contract was rendered impossible because defendant was permanently unable to appear in court after he was deported from the United States.

We disagree that the trial court had no jurisdiction to declare a forfeiture, and conclude Financial Casualty failed to meet its burden of proving defendant had been deported. We find no abuse of the trial court's discretion.

*131In addition, Financial Casualty contends the court's decision to deny its motion to set aside the People's summary judgment order was error. In support of its claim Financial Casualty argues the trial court erred by ordering summary judgment prematurely before it first ruled on appellant's renewed motion to vacate the bail forfeiture. We conclude the lower court properly entered summary judgment, and that Financial Casualty is not entitled to relief under Code of Civil Procedure section 473. Therefore, we affirm the trial court's rulings on all orders.

II. FACTUAL AND PROCEDURAL BACKGROUND

On February 10, 2015, defendant Lesman Cruz (Cruz) was charged with various crimes, including a felony and two misdemeanors. The following day, on February 11, 2015, Cruz was denied release on his own recognizance and bail was set at $30,000. He was also ordered to appear on February 18, 2015, for supervised pretrial release (S.P.R.) eligibility report, and on February 26, 2015, for a preliminary hearing. Also on February 11, 2015, Financial Casualty posted a bail bond securing Cruz's release from custody.

On February 18, 2015, Cruz failed to appear in court. At the hearing, Cruz's lawyer explained that he believed "Mr. Cruz got a little bit confused procedurally because his case was referred for S.P.R. and then he bailed out," and two separate court dates had been set. The court decided that in light of the possible confusing circumstances, it would give Cruz the benefit of the doubt and did not forfeit the posted bail.

However, when Cruz again failed to appear in court on February 26, 2015, the court forfeited his posted bail. A notice of forfeiture was mailed to Financial Casualty and the bail agent on March 25, 2015. The notice indicated the end of the appearance period was on September 26, 2015.

On September 24, 2015, Financial Casualty filed a motion to vacate the forfeiture and exonerate bail pursuant to section 1305, subdivision (d), arguing that Cruz was deported to Honduras and thus performance of the bail contract was rendered impossible. At the October 15, 2015 motion hearing, Financial Casualty presented 12 exhibits, identified as Exhibits A through L. However, the court determined that the only admissible evidence was Exhibits F, G, and L, and these exhibits did not prove defendant had been deported.

Exhibit G was the declaration of a legal assistant stating she requested confirmation of Cruz's deportation from the Department of Homeland Security (DHS), and referred to Exhibit F as its response. Exhibit F from DHS stated: "This is in response to your letter dated August 5, 2015, in which you seek *132information about the deportation status of Lesman Orlando Benegas-Cruz. [¶] The subject departed from the U.S. to Honduras on June 18, 2015." (Italics added.) The trial court concluded these exhibits did not establish that Cruz had been deported as of that date.

Lastly, Exhibit L was a booking sheet from Salt Lake County, Utah, showing that Lesman Venegas-Cruz had been arrested *185in that county on March 12, 2015, for drug offenses. Also on that booking sheet were probation conditions stating: "Violate no laws. [¶] Defendant to be released to Immigration and Customs Enforcement (ICE). [¶] Defendant may be released early for deportation into the custody of Immigration and Customs Enforcement (ICE); or leave the country voluntarily within 10 days of release. [¶] Do not re-enter the country illegally. [¶] Bench warrant will be issued within 60 days to ensure Defendant does not return or remain in this county or state illegally." As to this exhibit, the court found the "permissive language" in the probation conditions did not allow the court to conclude that Cruz, in fact, had been deported; it only supported the conclusion that Cruz had left the country.

Ultimately, the trial court denied the motion, without prejudice, on the ground that Financial Casualty did not provide sufficient competent evidence to establish that Cruz had been deported. On October 19, 2015, the People were granted summary judgment against Financial Casualty.

On November 23, 2015, Financial Casualty filed a motion to set aside the summary judgment order, vacate the bail forfeiture, and exonerate the bail bond, pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d). In the motion, Financial Casualty asserted that on October 16, 2015, it sent a renewed motion to vacate to the court for filing, which the court clerk mistakenly returned to Financial Casualty's attorney, unfiled, with notification that it would not accept the filing because summary judgment had been entered.

On December 28, 2015, the court denied Financial Casualty's motion to set aside summary judgment because Financial Casualty failed to demonstrate that it was entitled to relief under either subdivision of Code of Civil Procedure section 473.

On January 19, 2016, Financial Casualty filed a timely notice of appeal from the lower court's denial of its motion to vacate the forfeiture and exonerate bail on October 15, 2015, and motion to set aside summary judgment on December 28, 2015.

*133III. DISCUSSION

A. Motion to Vacate Bail Forfeiture

Bail forfeitures are governed by section 1305 et seq. The trial court must carefully follow these provisions or its acts may be found to be without, or in excess of, its jurisdiction. ( People v. The North River Ins. Co . (2011) 200 Cal.App.4th 712, 717, 132 Cal.Rptr.3d 789 ( North River ).) In addition, the law traditionally disfavors forfeitures of bail. ( People v. United Bonding Ins. Co . (1971) 5 Cal.3d 898, 906,

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People v. Fin. Cas. & Sur., Inc., 222 Cal. Rptr. 3d 180, 14 Cal. App. 5th 127, 2017 WL 3404765, 2017 Cal. App. LEXIS 690 (Cal. Ct. App. 2017).

222 Cal. Rptr. 3d 180 (People v. Fin. Cas. & Sur., Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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