Filed 11/18/20 P. v. United States Fire Ins. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B292975
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SJ3947)
v.
UNITED STATES FIRE
INSURANCE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Christopher K. Lui, Judge. Affirmed.
Law Office of John Rorabaugh, John Mark Rorabaugh and
Crystal L. Rorabaugh for Defendant and Appellant.
Mary C. Wickham, County Counsel, Adrian G. Gragas,
Assistant County Counsel, for Plaintiff and Respondent.
________________________
United States Fire Insurance (US Fire) appeals the
superior court’s order denying its motion to set aside summary
judgment, discharge forfeiture and exonerate the bond forfeited
when the criminal defendant for whom it had been posted failed
to appear in court as required. US Fire argues on appeal, as it
did in its motion to set aside, that setting bail in the amount of
$100,000 was unconstitutional, making the forfeiture provision in
the bail contract void and unenforceable. An identical argument
was rejected earlier this year by our colleagues in Division Two of
this court in People v. The North River Ins. Co. (2020)
48 Cal.App.5th 226 (North River) and a year earlier by a panel of
the Third District in People v. Accredited Surety & Casualty Co.
(2019) 34 Cal.App.5th 891 (Accredited). We agree with the
reasoning of those two cases and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Nuvia A. Yousef Bail Bond, as agent for US Fire, posted a
$100,000 bail bond on October 9, 2013 to secure the release of
Mario Carreno from custody. Carreno’s bail had been set at
$100,000 on October 1, 2013 during a hearing on a bench warrant
issued when Carreno had failed to appear for trial the preceding
August. Carreno’s counsel did not object to the amount of bail,
but the record does not reflect any inquiry was made into
Carreno’s ability to pay or the existence of conditions that might
secure his appearance in court without bail. The court scheduled
a pretrial hearing for October 28, 2013.
1. The First Motion To Set Aside
Carreno failed to appear at the pretrial hearing on
October 28, 2013. The trial court issued a bench warrant and
ordered the bond forfeited. The clerk mailed a notice of forfeiture
on October 30, 2013. On July 2, 2014 the court entered summary
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judgment against US Fire in the amount of the bond plus court
costs on the grounds the bond had been ordered forfeited and the
time for filing a motion to set aside the forfeiture had elapsed.
The clerk sent US Fire notice of entry of judgment and a demand
for payment.
US Fire moved to set aside the summary judgment,
discharge the forfeiture and exonerate bail on August 18, 2014,
arguing the court lacked jurisdiction to enter summary judgment
because Carreno had not been ordered to appear at the
October 28, 2013 pretrial hearing. The County opposed the
motion.
The trial court agreed with US Fire, explaining the bail
bond was “more of a contractual relationship in terms of
[Carreno] having to come [to court], as opposed to a court order
and [there] was no court order in this case.” It granted the
motion to set aside summary judgment, vacated the bail
forfeiture and ordered the bail exonerated.
We reversed the order granting the motion to set aside
based on the Supreme Court’s then-recent decision in People v.
Safety National Casualty Corp. (2016) 62 Cal.4th 703 (Safety
National), which analyzed the statutes requiring a defendant’s
presence in court in felony cases (Pen. Code, § 977, subd. (b))1 and
forfeiture of bail upon a defendant’s nonappearance (§ 1305) and
held, “for purposes of section 1305, a defendant’s presence at an
‘other proceeding[ ]’ under section 977(b)(1) constitutes a ‘lawfully
required’ appearance for which his or her unexcused absence may
justify the forfeiture of bail.” (Safety National, at p. 716.)
Applying Safety National we explained, “Carreno failed to appear
1 Statutory references are to this code unless otherwise
stated.
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at the October 28, 2013 pretrial hearing; there is nothing in the
record to indicate that he executed a written waiver of his right
to be present; and he provided no sufficient excuse for his
absence. Further, he had actual notice of the October 28 hearing,
as he was physically present in court when that pretrial hearing
was set. The court hearing his case therefore had a basis and
jurisdiction to declare a bail forfeiture.” (County of Los Angeles v.
United States Fire Ins. Co. (Jan. 13, 2017, B260173 [nonpub.
opn.].)
2. The Second Motion To Set Aside
Following issuance of the remittitur the trial court entered
summary judgment in favor of the County. US Fire moved a
second time to set aside summary judgment, discharge forfeiture
and exonerate bond, arguing, based on the court of appeal’s
decision in In re Humphrey (2018) 19 Cal.App.5th 1006, review
granted May 23, 2018, S247278, that the order setting Carreno’s
bail at $100,000 was unconstitutional and, therefore, its bail
contract was unenforceable. The court denied the motion, and
US Fire filed a timely notice of appeal.
DISCUSSION
1. In re Humphrey
In January 2018, more than four years after the court set
Carreno’s bail at $100,000, our colleagues in the First District in
In re Humphrey, supra, 19 Cal.App.5th 1006, considered the
petition for writ of habeas corpus filed by an individual detained
prior to trial due to his financial inability to post bail of $350,000.
Asserting bail had been set by the trial court without inquiry or
findings concerning either his financial resources or the
availability of a less restrictive nonmonetary alternative
condition or combination of conditions of release, the petitioner
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argued his continued detention violated rights guaranteed by the
Fourteenth Amendment. (Id. at p. 1015.)
The Humphrey court agreed, relying on one line of case
authority holding a defendant may not be imprisoned as a result
of his or her financial inability to pay a fine or restitution and a
second establishing the right to bail cannot be abridged except
through a judicial process that safeguards the due process rights
of the presumptively innocent arrestee and results in a finding
that no less restrictive combination of conditions can adequately
assure the arrestee’s appearance in court and/or protect public
safety. (In re Humphrey, supra, 19 Cal.App.5th at pp. 1025-
1026.) “[T]he principles underlying these cases,” the court of
appeal held, “dictate that a court may not order pretrial detention
unless it finds either that the defendant has the financial ability
but failed to pay the amount of bail the court finds reasonably
necessary to ensure his or her appearance at future court
proceedings; or that the defendant is unable to pay that amount
and no less restrictive conditions of release would be sufficient to
reasonably assure such appearance; or that no less restrictive
nonfinancial conditions of release would be sufficient to protect
the victim and the community.” (Id. at p. 1026.) A court setting
a bail amount, the Humphrey court continued, must “consider [a]
defendant’s ability to pay and refrain from setting an amount so
beyond the defendant’s means as to result in detention.” (Id. at
p. 1037.)2
2 In granting review on May 23, 2018, the Supreme Court
directed the parties in In re Humphrey to brief and argue the
following issues: “(1) Did the Court of Appeal err in holding that
principles of constitutional due process and equal protection
require consideration of a criminal defendant’s ability to pay in
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2. North River and Accredited
In North River, supra, 48 Cal.App.5th 226, decided during
the pendency of US Fire’s appeal, Division Two of this court
rejected the surety’s argument summary judgment on a forfeited
bail bond should be set aside because of the trial court’s failure,
several years before the decision in In re Humphrey, to inquire
into the defendant’s ability to pay when setting bail rendered the
bond (and, therefore, the summary judgment) void. (Id. at
p. 230.)
The court gave several reasons for its decision, including
the untimely filing of the motion; but for our purposes most
significant are the court’s holding the judgment was not void and
its conclusion that, even if voidable, the bail order was voidable
only as to the defendant, not North River. The court explained,
“A judgment is ‘void’ only when the court entering that judgment
‘lack[ed] jurisdiction in a fundamental sense’ due to the ‘“entire
setting or reviewing the amount of monetary bail? (2) In setting
the amount of monetary bail, may a trial court consider public
and victim safety? Must it do so? (3) Under what circumstances
does the California Constitution permit bail to be denied in
noncapital cases? Included is the question of what constitutional
provision governs the denial of bail in noncapital cases—article I,
section 12, subdivisions (b) and (c), or article I, section 28,
subdivision (f)(3), of the California Constitution—or, in the
alternative, whether these provisions may be reconciled.”
On August 26, 2020 the Supreme Court, pursuant to
California Rules of Court rule 8.1115(e)(3), ordered that part III
of the court of appeal’s decision—the court’s holding that bail
determinations must be based upon consideration of
individualized criteria—continues to have precedential effect.
(In re Humphrey, S247278, 2020 Cal. Lexis 5543.)
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absence of power to hear or determine the case”’ resulting from
the ‘“absence of authority over the subject matter or the
parties.’’’” “‘. . . A court can lack fundamental authority over the
subject matter, question presented, or party, making its
judgment void, or it can merely act in excess of its jurisdiction or
defined power, rendering the judgment voidable.’ [Citation.]
Only void judgments and orders may be set aside under
section 473, subdivision (d); voidable judgments and orders may
not.” (North River, supra, 48 Cal.App.5th at pp. 233-234.)
Applying these definitions the North River court held the
trial court’s summary judgment on the bond was not void
“because the trial court at all times had fundamental jurisdiction
over the subject matter and the parties. The court had the
jurisdiction over the subject matter when it followed the
statutory procedures then in effect when setting the bail amount
for defendant [citations], releasing defendant on bail once the
surety posted a bond in the bail amount [citations], declaring the
bond forfeited in open court when defendant did not appear as
ordered and had no sufficient excuse for his nonappearance
[citation], and entering summary judgment once defendant was
not returned to custody by the expiration of the appearance
period [citation]. [Citation.] The court also had jurisdiction over
the surety once the surety posted its bond.” (North River, supra,
48 Cal.App.5th at pp. 233-234.)
Continuing, the North River court held, “[A]ny
noncompliance with Humphrey would, at best, render the bail
order voidable as to the defendant, not as to the surety.” (North
River, supra, 48 Cal.App.5th at p. 235.) The bail forfeiture
proceedings arose from the contract between the surety and the
People under which the surety acts as the guarantor of the
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defendant’s appearance in court. That contract, the court
explained, while related to the underlying criminal prosecution of
the defendant, is independent of, and collateral to, the criminal
case. (Id. at p. 235, citing People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 657.) “The independence of
bail proceedings from the underlying criminal prosecution is why
any noncompliance with Humphrey during the prosecution does
not affect—let alone eviscerate—the trial court’s jurisdiction over
the collateral bail proceedings. Time and again, courts have
ruled that errors in a trial court’s setting of bail during the
criminal prosecution do not let the surety off the hook in the
collateral bail proceedings.” (North River, at p. 235; see People v.
Financial Casualty & Surety, Inc. (2019) 39 Cal.App.5th 1213,
1217, 1225-1227 [assuming the trial court violated the
defendant’s constitutional rights by conditioning bail on the
defendant waiving his Fourth Amendment rights against
warrantless searches, the violation did not “vitiate the surety’s
obligation to comply with the terms of the undertaking”]; People
v. Accredited Surety & Casualty Co., Inc. (2004) 125 Cal.App.4th
1, 4, 6-8 [trial court’s failure to comply with section 1275 when
setting bail did “not operate to exonerate a surety’s liability” on
the bond].)
Accredited, supra, 34 Cal.App.5th 891 reached a similar
conclusion the year before North River. In Accredited a panel of
the Third District first noted that “Humphrey did not discuss the
validity of a bail bond contract issued following a constitutionally
inadequate hearing.” (Id. at p. 898.) The court then explained,
“The rights addressed in Humphrey, and the procedural
requirements announced by the court, are intended to guard
defendants’ liberty interests. [Citation.] Nothing in Humphrey
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or the statutory rules regarding the setting of bail relieves the
surety of its obligations under the bond once it has been
executed.” (Id. at p. 898.) Citing the same case law relied upon
by North River, the court held, “Failure to comply with the
procedural requirements of Humphrey, requirements intended to
safeguard the defendant’s constitutional rights, did not render
the subsequently issued bond void.” (Id. p. 899.)
3. US Fire’s 2013 Bail Contract Was Not Unenforceable
Without addressing essential questions concerning the
constitutionality of the bail setting order in this case—that is,
whether the Supreme Court will ultimately agree with the court
of appeal’s result in In re Humphrey and hold, either as a matter
of federal or state constitutional law, that bail determinations
must be based upon consideration of individualized criteria
including the defendant’s financial status; if it does, whether the
ruling will apply retroactively to bail orders made, as here, years
before the First District’s decision; and whether, even assuming
the constitutional analysis of In re Humphrey were to apply to
the bail order in this case, any error would be harmless because
Carreno, unlike Humphrey, was able to post bail and was not
subject to prolonged pretrial detention—US Fire urges us to
disregard North River’s and Accredited’s analysis and conclude
the bail order in this case was void and, as a consequence, its
surety contract unenforceable.
Central to US Fire’s argument is its contention that the
courts in North River and Accredited “fundamentally misconstrue
the nature of the bail contract.” Rather than a straightforward
contract between the state and the bonding company, US Fire
asserts, “[t]he contract is instead one of suretyship, and the rules
of surety law apply.” Under that law, US Fire continues, the
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liability of a surety is generally commensurate with that of the
principal; where the principal is not liable on the obligation,
neither is the guarantor. (See Civ. Code, § 2810 [“[a] surety is
liable, notwithstanding any mere personal disability of the
principal, though the disability be such as to make the contract
void against the principal; but he is not liable if for any other
reason there is no liability upon the part of the principal at the
time of the execution of the contract, or the liability of the
principal thereafter ceases, unless the surety has assumed
liability with knowledge of the existence of the defense”].)
Accordingly, it argues, neither the defendant nor the surety that
guaranteed the defendant’s contract with the state is liable for a
bail debt that was not fixed by a valid method.
US Fire ignores that the holding in North River is founded
on the Supreme Court’s analysis of bail proceedings as
“independent from and collateral to” the underlying criminal
prosecution. (People v. American Contractors Indemnity Co.,
supra, 33 Cal.4th at p. 657; see Safety National, supra, 62 Cal.4th
at p. 709.) As discussed, because of that independence, while a
Humphrey violation may affect the validity of the state’s
detention of a criminal defendant, the North River court held any
noncompliance with In re Humphrey does not impair the trial
court’s jurisdiction over the collateral bail proceedings and render
void, or even voidable, the surety’s bail contract. (North River,
supra, 48 Cal.App.5th at p. 235.)
We agree. A claimed violation of Carreno’s rights in setting
bail does not permit US Fire to void the bond—a contract
between it and the state. Even if the trial court failed to state its
reasons for the bail amount or failed to consider relevant factors,
it fundamentally had jurisdiction over the criminal case and
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Carreno, so the court’s bail order was not void. At most, the bail
order was voidable by Carreno had he chosen to challenge it by
writ petition or otherwise.3
DISPOSITION
The order denying the motion to set aside is affirmed. The
People are to recover their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
3 US Fire’s related argument it would be unconscionable to
enforce the bail contract also improperly focuses on the bail
setting process, rather than the bail contract itself, which has
none of the elements of procedural and substantive unfairness
required to invalidate an agreement as unconscionable.
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