Continental Cas. Co. v. State of California

California Court of Appeal Aug 22, 1974 No. Civ. 33770Published

Before: Brown (h.C.)

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Holding. The court held that bail bondsmen are not entitled to recover penalty assessments previously forfeited under the unconstitutional Penal Code section 13521, as such recovery would result in the unjust enrichment of the sureties.

Issues

Whether bail bondsmen may recover penalty assessments forfeited under Penal Code section 13521 following the Supreme Court's ruling that the statute is unconstitutional as applied to bail.
Whether the waiver and estoppel doctrine established in McDermott v. Superior Court regarding bailees applies to the claims of sureties.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court anticipated a claim for recovery of past penalty assessments and concluded that such claims would be foreclosed by application of a waiver and estoppel doctrine.”

“Allowing restitution of a portion of the money forfeited would result in unjust enrichment of the surety.”

“The bondsmen should not be unjustly enriched at the expense of the Peace Officers’ Training Fund, the recipient of the forfeited penalties”

Opinion

BROWN (H. C.), J.

This is an appeal from the judgment following the sustaining of a demurrer without leave to amend.

Appellant Continental Casualty Company filed its complaint on behalf of those who have paid to the state bail bond forfeitures in which a penalty assessment was included pursuant to Penal Code section 13521.

Penal Code section 13521 provides inter alia for the levy of a penalty assessment of $5.00 for every $20 or fraction thereof of forfeitures collected by the courts for criminal offenses with certain exceptions, and further provides: “When any deposit of bail is made for an offense to which this section applies, the person making such deposit shall also deposit a sufficient amount to include the assessment prescribed in

[261]

this section for forfeited bail.” The penalty assessment is forfeited, if bail is forfeited, and returned, if bail is returned.

The California Supreme Court in

McDermott

Superior Court

(1972) 6 Cal.3d 693 [100 Cal.Rptr. 297, 493 P.2d 1161], held Penal Code section 13521 unconstitutional as applied to bail. The court reasoned that Penal Code section 1275 requires the setting of bail in an amount determined to be reasonable in light of the factors enumerated in that statute. The addition of the statutory penalty to such amount would result in excessive bail, the imposition of which is prohibited by article I, section 6, of the California Constitution and the Eighth Amendment to the United States Constitution.

In this class action, bondsmen who have already forfeited this penalty assessment upon the nonappearance of their bailees, seek to recover the amount of the penalty. The decision in

McDermott

involved the resolution of a petition for writ of mandate by persons awaiting trial and resulted in an order to respondent courts to reset petitioners’ bail so as to eliminate any penalty assessments. (6 Cal.3d at p. 698.) The court anticipated a claim for recovery of past penalty assessments and concluded that such claims would be foreclosed by application of a waiver and estoppel doctrine.

Continental Cas. Co. v. State of California

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BROWN (H. C.), J.

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