County of Los Angeles v. Surety Insurance

Opinion

KINGSLEY, J.

Defendant appeals from a summary judgment based on a forfeiture of a bail bond. We affirm.

On April 23, 1983, defendant Surety Insurance Company posted a $5,000 bond to secure the release of Dennis L. Justice. On August 8, 1983, the date set for his appearance at a pretrial conference, Mr. Justice failed to appear. The trial court did not declare a forfeiture of the bond, but continued the case until August 17, 1983, and issued a bench warrant to be held until the later date. When Mr. Justice did not appear on August 17th, the trial court did declare a forfeiture and ordered the bench warrant served. Summary judgment on the forfeiture was entered on April 11, 1984. On May 1, 1984, defendant Surety moved to vacate the summary judgment and set aside the forfeiture. The motion was denied; defendant has appealed. We affirm.

[950]

In the trial court and here, the surety relies on

People

v.

United Bonding Ins. Co.

(1971) 5 Cal.3d 898 [98 Cal.Rptr. 57, 489 P.2d 1385]. That reliance is misplaced.

United Bonding,

although decided in 1971, concerned a nonappearance of a defendant that had occurred in 1968. As both briefs here agree, the decision in that case takes no account of a 1969 amendment of the governing statute—section 1305 of the Penal Code. The

United Bonding

decision held that,

under the statute as it read in 1968,

a trial court was required to declare a forfeiture immediately on a nonappearance unless the minutes expressly showed the existence of a valid excuse for the nonappearance. Absent such a minute entry and the existence of a valid excuse, a trial court that did not declare a forfeiture lost jurisdiction to declare a forfeiture at a later date and the failure immediately to declare a forfeiture exonerated the bond. That reliance, in 1971, on a 1968 statute was understandable. The nondeclaration of forfeiture created, as of 1968, a vested right in a surety which the Supreme Court was required to recognize, whenever the issue arose.