P. v. Lexington Nat. Ins.
Corp.
Filed 1/28/14 P. v. Lexington Nat. Ins. Corp. CA/4
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent,
v.
LEXINGTON NATIONAL INSURANCE CORPORATION,
Real Party in
Interest and Appellant.
A136832 & A137178
(San
Mateo County
Super. Ct. Nos.
CIV517513 &
SC070207C)
I.
Introduction
Real party in interest Lexington
National Insurance Corporation (Lexington) appeals from the denial
of its petition for relief from bond forfeiture (Pen. Code,
from summary judgment entered in favor of respondent. Lexington had posted a bail bond in the amount of $120,000 for the defendant in
a criminal case pending against him in the San
Mateo County Superior Court. When the defendant failed
to appear for trial, the trial court ordered the bond posted by Lexington
forfeited. Summary judgment was later
entered in favor of the forfeiture.
Lexington appeals
from both rulings, claiming that the notice
it received of the forfeiture was constitutionally defective. We disagree, and conclude that the recent
opinion by Division Three of this appellate district in People v. Accredited Surety & Casualty Co., Inc. (2013) 220
Cal.App.4th 1137 (Accredited Surety)
is dispositive of Lexington’s claims here.
Accordingly, we affirm the trial
court’s orders and resulting judgment.
II.
Factual and Procedural Backgrounds
On or about February 4, 2011, Lexington posted a bail bond in the amount of $120,000 for Xi Jin Huang in a
criminal case pending against Huang in San Mateo
SC070207C. Apparently, Huang had been
charged in that case with violations of Health and Safety Code sections 11358
and 11359 (cultivation and possession of marijuana), and section 498,
subdivision (d) (theft of utility services). The bond was to secure Huang’s appearance in
court on July 11,
2011.
Huang failed to appear on July 11, 2011, and the trial court declared Lexington’s bond
forfeited, issued a bench warrant for Huang, and increased his bail to
$200,000. A “Notice of Order Forfeiting
Bail†was sent to Lexington on August
2, 2011, that read as follows: “You are hereby notified that Bail Bond No.
ZZ8007, in the sum of $120,000.00 was forfeited on 07/11/11. Defendant having failed to appear for Jury
Trial.â€
On January 31, 2012, Lexington filed a motion to extend the time for bail forfeiture, which was
granted by the trial court, extending the time to August 14, 2012. Thereafter, Lexington filed a
motion to vacate forfeiture and to
was opposed by respondent. The motion
was heard and denied on September 28, 2012. Lexington filed a notice of appeal from that order on October 15, 2012. That appeal was later
assigned case number A136832 by this court.
A civil action number was then
assigned to the matter of the bail forfeiture in San Mateo County Superior
Court Case No. CIV517513, and summary judgment concerning the forfeiture was entered
on October
23, 2012, by order granted on October 17, 2012. Notice of this summary
judgment was served on Lexington on October 23, 2012. Lexington filed a notice of appeal from the summary judgment on November 26, 2012, which was later assigned case number A137178 by this court. At Lexington’s request,
these two appeals were ordered consolidated by order dated January 23, 2013 (Ruvolo, P. J.).
Briefing on appeal was completed
with the filing of Lexington’s reply brief on August 16, 2013. However, on October 28, 2013, Division Three of this court filed and published its opinion in
By letter dated November 19, 2013, we invited the
parties to file supplemental briefs “addressing the applicability of the
recently published opinion by Division Three of this court in
raised by this appeal.†Supplemental
briefing was completed on December 19, 2013. The remittitur in Accredited Surety issued on January 3, 2014.
III.
Discussion
Lexington’s claim on appeal is that
the notice of forfeiture sent to it by the San Mateo County Superior Court on
August 2, 2012, did not comply with section 1305 because that notice did not
notify Lexington of its right to seek relief from the forfeiture and the time
limits applicable to seeking such relief, citing People v. Swink (1984) 150 Cal.App.3d 1076, 1081 (
the trial court lacked jurisdiction to order the forfeiture.
The identical issue raised by Lexington in this
appeal was similarly raised and rejected in Accredited
Surety.
title="">[2] In that case, Accredited Surety posted a bail
bond for one Ji Liang Cheng who subsequently failed to appear for sentencing,
causing the bond to be forfeited.
name="_ftnref3" title="">[3] On appeal, Accredited Surety claimed that the
notice it received from the superior court, which was identical to the notice
issued in this case to Lexington, was constitutionally inadequate under
under which the forfeiture was being declared, (2) to cite what relief
from forfeiture was available to Accredited Surety, and (3) to state the
time limits for seeking relief from the forfeiture. (Accredited Surety, supra,
either Swink or Minor, or the United
States Supreme Court case of Memphis
Light, Gas & Water Div. v. Craft (1978) 436 U.S. 1, underpinning those
holdings. However, Division Three
distinguished all three cases on the important fact that each involved notices
to laypersons and not to business entities engaged in the bail bond business: “These cases, on which [Accredited] Surety
relies, all involved the sufficiency of notice to laypersons, who presumably
were unaware of the statutory procedures for obtaining relief. These same cases recognize that the ultimate
question in determining whether a given notice satisfies due process is
whether, under the particular circumstances, the notice is reasonably
calculated to inform the recipient of the process by which the recipient may
challenge the governmental action in question. [Citation.]†(Accredited
Surety, supra,
The court went on to note that Accredited
Surety was a licensed insurer and professional surety which routinely worked
within framework of section 1305 in issuing and enforcing bail bonds, and thus,
was presumably familiar with the timing and methodology for seeking relief from
forfeitures. For this reason, the cases
relied on by Accredited Surety to attack the sufficiency of the notice it
received were distinguishable, and the notice was adequate to meet due process
standards. (Accredited Surety, supra,
220 Cal.App.4th at pp. 1144-1145.)
In its supplemental briefs in this
case, Lexington essentially concedes that if we accept the analysis in
and we should not adhere to a legal rationale that does not do justice “to the
notions [of] fairness and due process,†later referring to the factual distinction
found so important by the court in Accredited
Surety between laypersons and professional surety companies as “a fallacy
or judicial fiction.†Essentially, it
argues that bail bond agencies are not a collective, cohesive entity, but an
amalgam of bail agents some of whom are quite educated and experienced while
others are “novices†who cannot be fairly charged with knowing what recourse is
available to their respective companies in the event of a default by a criminal
defendant.
The court in Accredited Surety at least implicitly rejected this very same
argument. It noted that Accredited Surety
was a professional surety company that routinely worked with the bond
forfeiture statute (section 1305), as evidenced by the very language of the
bond itself: “Indeed, the bond which [Accredited]
Surety issued in this case explicitly provides, ‘If the forfeiture of this bond
be ordered by the court, judgment may be summarily made and entered forthwith
against the said ACCREDITED SURETY AND CASUALTY COMPANY, INC., a Florida
Corporation, for the amount of its undertaking herein as provided by Sections 1305 and 1306 of the Penal Code.’ (Italics added.)†(Accredited
Surety, supra, 220 Cal.App.4th
This is the same, identical language
that appears in the bond issued by Lexington in this
case. Moreover, the bond agent here was
not simply Lexington, but its attorney in fact, Desoto-Liberty Bail Bonds, a company
with offices in Healdsburg and San
Francisco, and a licensed bail
bond agency.
title="">[4] Indeed, at no time, either in connection with
the motion to extend the time for bail forfeiture, or to vacate the forfeiture
and exonerate the bond, did Lexington or Desoto-Liberty personnel state that
they were unfamiliar with remedies available to them to seek relief from the
forfeiture, or the time within which such remedies must be invoked. In fact, the motion to extend the time for
bail forfeiture made by Lexington, was filed by Desoto-Liberty itself through its bail agent, Terry
Fowler. The points and authorities
submitted by Fowler and Desoto-Liberty in support of that motion specifically
reference both the remedy of setting aside a bond forfeiture and the time
within which such relief may be sought.
In light of all of the foregoing, we
agree with the rationale of our colleagues in Division Three in
distinction noted in the case law between laypersons posting bail for others,
and professional bail bond issuers such as Lexington and Surety. (See also
Swink, supra, 150 Cal.App.3d at
p. 1082; Minor,
arguments to the contrary, and conclude that the notice it received regarding
the bond forfeiture was not constitutionally defective. Therefore, the trial court acted within its
jurisdiction in ordering Lexington’s bond in the sum of $120,000 forfeited, and in granting summary
judgment to respondent.
IV.
Disposition
The order declaring Lexington’s bond in
the sum of $120,000 forfeited is affirmed, as is the summary judgment resulting
from that order. Costs on appeal are
awarded to respondent.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
Penal Code unless otherwise indicated.
Accredited Surety’s argument that the summary judgment order was void because
it was entered after the time allowed by section 1306. Division Three concluded that, although
untimely, the order was voidable and not void, and Accredited Surety’s actions
in contesting the summary judgment on the merits estopped it from raising an
objection to the timeliness of the order.
(Accredited Surety,
