County of Tulare vs. Bail Hotline Bail Bonds

The Notice Was Presumed Received Pursuant to Evid. Code Sec. 641

"A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail." (Evid. Code Sec. 641.) Here, the Notice of Order Forfeiting Bail was correctly addressed to Bail Hotline Bail Bonds and Financial Casualty and Surety, Inc., at the addresses listed on the bond pursuant to Pen. Code Sec. 1305, subd. (b) and properly mailed by the clerk. Consequently, the Notice of Order Forfeiting Bail was presumed to have been received in the ordinary course of mail.

The Presumption Created By Evid. Code Sec. 641 Was Properly Rebutted Pursuant to Evid. Code Sec. 604

Evid. Code Sec. 604 states, The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.

In Bonzer v. City of Huntington Park (1993) 20 Cal. App. 4th 1474, 1476, the Court reversed the trial court's denial of the City's Cal. Civ. Pro. Code Sec. 473 motion. There, Bonzer filed a petition for a writ of mandate and properly served the respondents. (Id. at 1477.) Bonzer then filed a "Notice of Motion and Motion to Apply for Preemptory Writ of Mandate" and served it by mail. (Id.) On the date of the hearing, none of the respondents appeared and the trial court granted the motion. (Id.) The City then filed a Civ. Pro. Code Sec. 473 motion. (Id.) In support of the City's motion, it provided six declarations declaring that none of the defendants received the mailed notice of the motion. (Id. at 1479.) The trial court denied the motion and the City appealed. (Id. at 1477.)

The Court reversed the trial court's decision reasoning, "[u]pon presentation of appellant's detailed, credible, and unimpeached evidence of no actual notice -the presumption of such notice ceased to exist. The only remaining effect of the 'Proof of Service' declaration was to enable the trial court to draw 'any inference that may be appropriate.'" (Id. at 1481.) The Court also noted that besides the proof of service, the six declarations declaring that there was no actual notice, "was neither impeached or contradicted." (Id. at 1480.)

Here, Financial Casualty & Surety, Inc., put forth a declaration from Christopher Ramos, an employee of Bail Hotline Bail Bonds. He declared that he is the one who handles the bond forfeitures received by the trial court. He further declared that when a notice of forfeiture is received, it is inputted into their system and processes them to assign a fugitive recovery agent to start the investigation process. If the investigator is unable to locate the defendant within the 180-day period, a motion to extend time is filed. After receiving the notice of summary judgment from the trial court, he checked their records and verified that the Bail Hotline did not receive the forfeiture notice and did not have a notice of forfeiture on file. Consequently, the process laid out above did not take place.

Christopher Ramos' declaration is detailed and credible evidence that no actual notice took place. Due to there being no impeachment evidence presented by the county, the presumption of actual notice created by Evid. Code Sec. 641 ceased to exist. However, unlike in Bonzer, where the Court only could draw a mere inference from the proof of service declaration made pursuant to Cal. Civ. Pro. Code Sec. 1013a, subd. (3) because it did not attest to actually mailing the notices or to having personal knowledge they were mailed, the court clerk did attest that she placed the Notice of Order Forfeiting Bail for collection and mailing on the date shown, so as to cause it to be mailed in a sealed envelope with postage fully prepaid on that date following standard court practices to the persons and addresses shown.

Weighing the inference of actual notice drawn from the court clerk's declaration pursuant to Evid. Code Sec. 604 against Christopher Ramos' declaration, the Court finds that there was actual notice because if the Notice of Bail Forfeiture was deposited in the mail, it was sent. If it was sent, then it should have been delivered or received back by the court as undeliverable. The Court cannot surmise why Bail Hotline Bail Bonds did not process it pursuant to its normal course of business. However, it was delivered.

Between both copies being sent to two different addresses, one of them must have received it. Further, Bernal had two different cases with two different bonds. A Notice of Bail Forfeiture was sent for each of these bonds and cases to both the bail agency and surety. Between these four mailings, the bail agency or surety would have had to receive at least one of them. What they did with it after receiving it, is beyond the scope of this hearing.

Further, Christopher Ramos' declaration does not demonstrate a specific reason they would not have received actual notice. For example, it does not state that the clerk sent the notice to the wrong address, the post office removed their mailbox, the post office prevented them from accessing their P.O. box, etc. Instead, the Court is expected to accept that the post office must have lost the notice without any evidence to support this contention and that Bail Hotline Bail Bonds always follows their mail intake procedure with no error. In the alternative, the Court would have to believe the court clerk did not actually mail the notice, which is improbable.

The Court also notes that the Notice of Entry of Summary Judgment was sent to the exact same addresses that the Notice of Forfeiture was sent to. There is no explanation as to why Financial Casualty & Surety, Inc. received the notice of summary judgment but not the notice of forfeiture. Lastly, as the County points out, the declaration of Adrian Auilera, an employee of Financial Casualty & Surety, Inc. declared that Financial Casualty & Surety, Inc.'s address is located at 2500 City West Blvd. Suite 1150, Houston, Texas. The address the notices were mailed to was 3131 EASTSIDE ST STE 250 HOUSTON, TX 77098. There is no explanation for the difference of address, much less that the Court was notified of an address change.

Therefore, the Court denies the motion. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Midland Credit Management Inc. vs. Vasquez, Fatima