People v. American Surety Company ( 2020 )

Filed 10/1/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157154
v.
AMERICAN SURETY COMPANY, (Alameda County
Super. Ct. No. 17CR034479)
Defendant and Appellant.
A trial court set bail for a criminal defendant at $220,000. Due to a
miscommunication, jail authorities had the figure at $120,000. American
Surety Company (American) posted a bond for $120,000. The defendant
failed to appear at a scheduled appearance, whereupon the trial court
ordered the bond forfeited. Invoking venerable authority that a bail bond in
an amount not set by the court is void (e.g., County of Merced v. Shaffer
(1919) 40 Cal. App. 163 (Shaffer); cf. Kiperman v. Klenshetyn (2005) 133
Cal. App. 4th 934, 939 [“a person may not be released on bond for an amount
less than the amount of the bail ordered by the court”]), American moved to
set aside the forfeiture. The trial court denied American’s motion, and
entered summary judgment against American in accordance with Penal Code
section 1306.
Having perfected this timely and authorized (Pen. Code, § 1305.5)
appeal, American insists the bond was void from the outset. American
advances two contentions: (1) “the posting of a bond in an amount different
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from that ordered by the court did not create a valid contract” because a bond
in such circumstances “does not confirm to the order of the court” and thus “is
void for lack of mutual assent”; (2) the bond was void because the bail level
was fixed without sufficient constitutional process, specifically, without
consideration of the defendant’s ability to pay.
There being no factual dispute, American’s contentions receive our
independent review. (People v. Accredited Surety & Casualty Co. (2018)
26 Cal. App. 5th 913, 917; People v. Bankers Ins. Co. (2016) 247 Cal. App. 4th
1004, 1007.)
American’s first argument is predicated on the proposition that a bail
bond is only a contract between the government and the surety who
guarantees the defendant’s appearance in court. (E.g., County of Los Angeles
v. Financial Casualty & Surety, Inc. (2018) 5 Cal. 5th 309, 314.) And the most
elemental principle of the law of contracts is that there can be no contract
unless the contracting parties reach a meeting of minds as to the material
terms of the contract. (Civ. Code, §§ 1550, 1565, 1580, 1636; Donovan v. RRL
Corp. (2001) 26 Cal. 4th 261, 270.)
From this American reasons: “the amount of a bail bond (the
acceptance) must conform to the order of the court (the offer) or the bond is
void and the court is without jurisdiction to forfeit the bond or enter a
summary judgment. This principle was recognized a hundred years ago in
County of Merced v. Shaffer (1919) 40 Cal. App. 163, where the court found
that a bond posted for the wrong amount was void. ‘[T]he bond in a criminal
proceeding is purely statutory and must conform to the statute and order of
the court. If it fails to do so it is not good even as a common law
obligation.’ . . . [¶] The cases relied upon by Shaffer [Roberts v. State (Kan.
1885) 8 P.246; San Francisco v. Hartnett (1905) 1 Cal. App. 652, 656] stand for
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the broader proposition that a bond that does not comply with the order of
the court is void.”
We think otherwise. Authorities at the jail told American that the
defendant could be released if a $120,000 bond was posted. American posted
its bond in that amount, and the defendant was indeed released. Thus, it
appears that minds did meet.
Nor do we believe Shaffer warrants the categorical reading American
gives to it. Shaffer involved a motion to reform the bond actually accepted
and filed, by which the two defendants and the two sureties undertook that
“ ‘if he, or they, fail to perform any of these conditions, then he, or they, will
pay’ ” the amount of the bond. (Shaffer, supra, 40 Cal.App. at p. 165.)
Following San Luis Obispo v. Ryal (1917) 175 Cal. 34, the Court of Appeal
held that the bond was ineffective because it did not comply with statutory
provisions mandating that sureties be unambiguously responsible for an
accused’s failure to appear. (Shaffer, at p. 167.) “The bond executed by the
defendants herein was . . . not only not binding upon them because they did
not agree to pay anything themselves . . . .” (Id. at p. 168.) The bond in
Shaffer was void in the sense it was a nudem pactum, worthless for its
ostensible purpose, because the surety did not unambiguously commit itself
to pay the sum of the bond. By contrast, the bond filed by American
unambiguously obligated American to answer for the defendant’s failure to
appear, as required by Penal Code section 1459.
But there was a second ground for the decision in Shaffer: the bond
was for an amount greater than that set by the court. And it was on this
point that the Shaffer court spoke of the bond as “absolutely void” and “void
upon its face.” (Shaffer, supra, 40 Cal.App. at pp. 167 [“a bond in a sum
greater than the order of the court is absolutely void”], 168 [“The bond
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executed by the defendants herein . . . was absolutely void because it was in
an amount in excess of the order of the court”].) The court’s discussion of the
second ground was unnecessary to its decision and in any event is authority
only for the proposition that a bond issued in an amount more than the bail
set by the court is void. Here, of course, the bond was for an amount less
than the bail set by the court, an error that mostly likely redounded to
American’s benefit. To the extent some of the language in Shaffer is broader
than necessary to support its holding, we do not find it persuasive.
In any event, Shaffer is not controlling. Neither are its cited
authorities.
Roberts v. State is distinguishable because it too involved a bond in an
amount greater than that set by the court. (Roberts v. State (1885) 8 P. 246.)
There is even older precedent holding that a bail bond for a sum less than
court-ordered is not void (Chumasero v. State (1857) 18 Ill. 405) but agreeing
that a bond in an amount greater than fixed by a court is (Waugh v. State
(1856) 17 Ill. 561).
Upon reflection, San Francisco v. Hartnett gives only momentary
pause. There, a bond was successfully defended against forfeiture because
the amount was set by a court clerk, not a judicial officer. (1 Cal. App. 652,
653–654.) Clearly, that is not what happened here. It may be speculated
that it was the court clerk who may have misinformed jail authorities of the
amount of bail set by the court. If this surmise is correct, the communication
error was nothing like the usurpation seen in Hartnett.
We do note that, if this surmise is correct, there is reason to believe
such a mix-up is infrequent, but not unknown. In the course of our research
we encountered—but cannot mention by name—a number of unpublished
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Court of Appeal decisions rejecting American’s argument and distinguishing
Shaffer.
Nor are we persuaded by more modern decisions cited by American,
because none confronted the situation here.
Kiperman v. Klenshetyn, supra, 133 Cal.App.4th at page 939, which
does cite Shaffer for the proposition that “a person may not be released on
bond for an amount less than the amount of the bail ordered by the court,” is
distinguishable because it involved a dispute over whether the surety could
retain the premium for a bond that was not forfeited.
People v. International Fidelity Ins. Co. (2012) 204 Cal. App. 4th 588 did
cite Shaffer in a footnote (International Fidelity Ins. Co., at p. 595, fn. 4) but
not for the principle that a bond that does not comply with the order of the
court is void. There, the trial court erroneously included a forfeited bond
when setting new bail. The defendant was released for less than the full
amount of bail ordered, but the error was clearly judicial. (Ibid.
[distinguishing Shaffer on the ground that “The present case is slightly
different because the bail order (not the bond) failed to conform to the
applicable rules of law”]; accord, People v. Lexington National Ins. Co. (2015)
242 Cal. App. 4th 1098.)
People v. Accredited Surety & Casualty Co. (2012) 209 Cal. App. 4th 617,
disapproved on another ground in County of Los Angeles v. Financial
Casualty & Surety, Inc., supra, 5 Cal.5th at page 318, fn. 5, did not mention
Shaffer, involved multiple bails and multiple bonds which were for more than
the figure set by the court.
Although in the authorities cited by American there are scattered
references to a bond being “void,” we cannot conclude they establish
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American’s contractual theory. Indeed, they only suggest what might be the
obvious contractual approach.
Without actually using the words, American intimates that there was a
mutual mistake, which might be a basis for reforming the agreement
(Civ. Code, § 3399) or rescinding it (id., §§ 1577, 1689, subd. (b)(1)). We elect
not to address this issue, which is ordinarily one of fact (Harris v. Rudin,
Richman & Appel (2002) 95 Cal. App. 4th 1332, 1338–1340; Miller v. St. Andre
(1959) 175 Cal. App. 2d 259, 262), because it was not made to the trial court,
and thus is to be rejected according to the fundamental principle that
“ ‘issues not raised in the trial court cannot be raised for the first time on
appeal.’ ” (Johnson v. Greenelsh (2009) 47 Cal. 4th 598, 603; see 9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 400, p. 458, and authorities cited.)
Moreover, the point is made glancingly for the first time in American’s reply
brief and in an unauthorized manner. (Cal. Rules of Court,
rule 8.204(a)(1)(B) [“Each brief must . . . [¶] State each point under a separate
heading or subheading summarizing the point, and support each point by
argument, and . . . citation of authority”]; People v. Tully (2012) 54 Cal. 4th
952, 1075 [“It is axiomatic that arguments made for the first time in a reply
brief will not be entertained . . .”].)
As for American’s second argument, that the bond is invalid because
the trial court set bail without considering the criminal defendant’s ability to
pay when it set the amount of the bail, it too was not made in the trial court.
Had the point been properly preserved for review, we would reject the
argument on its belated merits.
American’s reliance on Arevalo v. Hennessy (9th Cir. 2018) 882 F.3d
763 and our recent decision in In re Humphrey (2018) 19 Cal. App. 5th 1006,
rev. granted, May 23, 2018, S247278, is misplaced. Both of those decisions
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are inapposite because each involved a petition for habeas corpus by a
pretrial detainee alleging due process issues in the amount of bail set.
Moreover, the sole issue addressed in Arevalo was whether the district court
was correct in invoking the abstention doctrine as a basis for dismissing the
habeas petition.
In any event, and even assuming that American had standing to
protest an asserted violation of a third party’s constitutional right, it is well
established that “ ‘[d]efects and irregularities . . . in the proceedings
preliminary to the taking of bail are considered as waived by the surety when
it assumes its obligations as such at the time of the execution of the bond,’ ”
and any “noncompliance with the procedural requirements for setting bail
‘[has] no legal effect on the forfeiture of bail upon defendant’s failure to
appear . . . .’ ” (People v. Accredited Surety & Casualty Co. (2019) 34
Cal. App. 5th 891, 898.) “Nothing in Humphrey or the statutory rules
regarding the setting of bail relieves the surety of its obligations under the
bond once it has been executed,” nor does it “render the subsequently issued
bond void.” (Id. at pp. 898, 899.) As another Court of Appeal put it, “any
noncompliance with Humphrey would, at best, render the bail order voidable
as to the defendant, not as to the surety.” (People v. North River Ins. Co.
(2020) 48 Cal. App. 5th 226, 235.) There is contrary authority (People v.
Financial Casualty & Surety, Inc. (2019) 39 Cal. App. 5th 1213), but we do not
find it persuasive.
Further, even assuming that American had raised the issue in a timely
fashion and had standing to raise it, American still would not prevail,
because we would simply note the obvious: “Although the trial court did not
specifically inquire into or make findings regarding [the] defendant’s ability
to post bail, [the] defendant was undeniably able to do so, and we may
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reasonably infer his ability to post bail from the fact that he did.” (People v.
North River Ins. Co., supra, 48 Cal.App.5th at p. 237.)
No one disputes the statutory directive that “the bail shall be in the
amount fixed by the judge.” (Pen. Code, § 1269b. subd. (b).) We have no
reason to doubt that all involved acted conscientiously and that compliance
occurs in the overwhelming number of instances where release on bail is
allowed. The Legislature has made provision for a defendant being released
other than as ordered by the court—to do so is a misdemeanor (id., § 1269a),
but no civil liability attaches (Gov. Code, § 845.8, subd. (a); Thompson v.
County of Alameda (1980) 27 Cal. 3d 741). What appears to have occurred
here may amount to clerical error, which is not included on the statutory
grounds for avoiding forfeiture. (See Pen. Code, §§ 980, subd. (b), 1000.2,
subd. (b), 1116, 1188, 1296, 1305, 1371, 1384.) Finally, we would be loath to
sustain American’s argument because it would produce the anomalous result
that American would reap a windfall, keeping the bond premium without
running any risk of being held to account on the bond.
The summary judgment is affirmed.
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_________________________
STEWART, J.
WE CONCUR:
_________________________
KLINE, P. J.
_________________________
RICHMAN, J.
People v. American Surety Company (A157154)
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Trial Court: Alameda County Superior Court
Trial Judge: Hon. Paul A. Delucchi
Counsel for Appellant: Law Office of John Rorabaugh; John Mark
Rorabaugh and Crystal L. Rorabaugh
Counsel for Respondent: Donna R. Ziegler, Alameda County Counsel;
Scott J. Feudale, Deputy County Counsel
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