Filed 4/21/16 P. v. United States Fire Ins. Co. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063514

v.                                                                       (Super.Ct.No. RIC1500199)

UNITED STATES FIRE INSURANCE                                             OPINION
COMPANY,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.

Affirmed.

         Law Office of John Rorabaugh and John M. Rorabaugh for Defendant and

Appellant.

         Gregory P. Priamos, County Counsel, and Anita Willis, Karin Watts-Bazan, and

Lisa Traczyk, Deputy County Counsel, for Plaintiff and Respondent.




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                                    I. INTRODUCTION

       Defendant and appellant, United States Fire Insurance Company (Surety), appeals

the denial of its motion to vacate the summary judgment on a $25,000 bail bond. Surety

claimed that its bail agent, John Garcia, doing business as John Garcia Bail Bonds

(Garcia), did not receive the clerk of court’s notice of forfeiture of the bail bond in the

mail. (Pen. Code, § 1305, subd. (b)(1) [bail bond must be exonerated if clerk of court

fails to mail notice of forfeiture to both the surety and the bail agent within 30 days of the

order forfeiting the bail bond].)1 The clerk’s certificate of mailing showed that the notice

was timely mailed to both Surety and Garcia, and Surety did not claim that Surety did not

receive the notice of forfeiture.

       On appeal, Surety claims that its motion to vacate the summary judgment was

erroneously denied because, at the hearing on the motion, the court conclusively

presumed, based on Evidence Code sections 641 and 664, that the court clerk mailed the

notice of forfeiture and that Garcia received it. Surety argues the court erroneously failed

to consider Garcia’s sworn statements that he did not receive the notice and the resulting

inference that the clerk did not mail the notice to Garcia.

       We reject this claim. As we explain, it is based on a misinterpretation of the

court’s comments at the hearing on Surety’s motion. The court’s comments as a whole

show that it properly considered Garcia’s claim that he did not receive the notice, and

properly applied Evidence Code sections 641 and 664. Surety also claims its motion

       1   All further statutory references are to the Penal Code unless otherwise indicated.


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should have been granted based on the equitable doctrine of extrinsic mistake—the

extrinsic mistake being that the mailman did not deliver the notice to Garcia. We also

reject this claim.

          II. STATUTORY BACKGROUND AND STANDARD OF REVIEW

A. The Applicable Bail Statutes

       Section 1305 governs the forfeiture of a bail bond and sets forth the grounds upon

which the forfeiture may be set aside and the bail exonerated. First, when the defendant

released on the bail fails to appear in court as lawfully required and without sufficient

excuse, the trial court must declare the bail bond forfeited in open court. (§ 1305, subd.

(a); People v. Granite State Insurance Co. (2003) 114 Cal.App.4th 758, 762.) If, as here,

the bail bond amount exceeds $400, the court clerk must serve notice of the forfeiture on

the surety and its bail agent within 30 days of the forfeiture. (§ 1305, subd. (b).) The

surety must be “released of all obligations under the bond” if the clerk does not mail the

notice of forfeiture in accordance with section 1305. (§ 1305, subd. (b)(1).)

       The surety then has 185 days from the date the notice of forfeiture is mailed (180

days plus five days for service by mail), to obtain relief from the forfeiture. (People v.

United States Fire Ins. Co. (2015) 242 Cal.App.4th 991, 999-1000.) The 185-day period

is known as the exoneration period or the appearance period (People v. Bankers Ins. Co.

(2010) 182 Cal.App.4th 1377, 1380), and may be extended by 180 days (§ 1305.4). If the

surety fails to obtain relief from the forfeiture within the appearance period, including

extensions, the trial court is required to enter summary judgment against the surety and in



                                              3
favor of the People on the bond, plus costs, within 90 days of the expiration of the

appearance period. (§ 1306, subds. (a), (c).)

       A summary judgment on a bail bond is appealable when it was not entered in

accordance with the consent given in the undertaking or bail bond, or when it was not

entered in accordance with sections 1305 and 1306. (See People v. American

Contractors Indemnity Co. (2004) 33 Cal.4th 653, 662-664; People v. American

Contractors Indemnity Co. (2015) 238 Cal.App.4th 1041, 1047 [“The only issue in a

challenge to the summary judgment [on a bail bond] is whether it was entered pursuant to

the terms of the consent, which requires compliance with Penal Code sections 1305 and

1306.”].)

B. Standard of Review

       “‘“Certain fixed legal principles guide us in the construction of bail statutes. The

law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail.

[Citation.] Thus, [Penal Code] sections 1305 and 1306 must be strictly construed in favor

of the surety to avoid the harsh results of a forfeiture. [Citation.]”’ [Citation.] ‘The

standard of review, therefore, compels us to protect the surety, and more importantly the

individual citizens who pledge to the surety their property on behalf of persons seeking

release from custody, in order to obtain the corporate bond.’ [Citation.]” (People v.

American Contractors Indemnity Co., supra, 238 Cal.App.4th at p. 1044.)

       “The resolution of a motion to set aside a bail forfeiture is within the trial court’s

discretion and should not be disturbed on appeal unless an abuse of discretion appears in



                                                4
the record.” (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.) The trial

court must carefully follow the requirements of sections 1305 and 1306 in declaring a

bail bond forfeited and in entering summary judgment on the bail bond, or its acts will be

considered in excess of its jurisdiction. (People v. American Contractors Indemnity Co.,

supra, 238 Cal.App.4th at p. 1044.) Due to the harsh results of a forfeiture and the

jurisdictional nature of statutory compliance, appellate courts carefully review the record

of a bail to ensure strict statutory compliance. (People v. Bankers Ins. Co. (2009) 171

Cal.App.4th 1529, 1532-1533.)

                   III. FACTS AND PROCEDURAL BACKGROUND

       On March 8, 2014, Surety, through its bail agent, Garcia, issued and filed bail

bond No. U25-20491367 in the amount of $25,000 to secure the appearance in court of

William James Patterson. Patterson appeared in court for his May 2, 2014, arraignment,

and he also appeared on June 2, 2014, when the court determined he had violated his

probation and scheduled a sentencing hearing on July 1, 2014. Patterson then failed to

appear in court on July 1, 2014, and a bench warrant was issued for his arrest.

       On July 1, 2014, the bail was ordered forfeited and the clerk of court issued and

filed a notice of forfeiture of the bail bond. (§ 1305, subds. (a), (b).) The notice of

forfeiture included the clerk’s “certificate of mailing,” affirming that, on July 1, 2014, the

clerk deposited the notice of forfeiture in the court’s “outgoing mail,” addressed to Surety

and Garcia at the addresses listed on both the notice and the bond. (§ 1305, subd. (b).)




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        The 185-day appearance period for moving to discharge the forfeiture expired on

January 2, 2015. (§ 1305, subds. (b), (c).) On January 6, 2015, the court entered

summary judgment on the bail bond in the amount of $25,395, plus court costs. (§ 1306.)

And on January 8, 2015, the court clerk mailed a notice of summary judgment to the

parties. The copy mailed to Garcia from the Office of County Counsel for the County of

Riverside was returned as undeliverable. On February 19, 2015, Surety paid the bond in

full.

        On February 20, 2015, Surety filed a motion to set aside the summary judgment,

discharge the forfeiture, and exonerate the bail bond. The motion was based on Garcia’s

declaration that he never received the notice of forfeiture in the mail and he did not know

the bail bond had been forfeited until Surety notified him that “a summary judgment had

been received by them.” At that point, Garcia contacted Patterson’s father, the

indemnitor on the bail bond who had had been making $100 monthly premium payments

on the bond. Garcia had been in regular contact with Patterson’s father since the bond

was posted in March 2014. Patterson’s father told Garcia that Patterson was “currently

with” him. Garcia then spoke with Patterson. Patterson told Garcia that his attorney had

“resolved” his case, but Patterson agreed to contact his attorney “to arrange to make an

appearance in court” on the case. Had Garcia received notice of the forfeiture, Garcia

would have “immediately taken steps to return [Patterson] to Court.”

        The People opposed Surety’s motion based on the clerk’s certificate of mailing,

which showed that the clerk deposited the notice of forfeiture in the court’s outgoing mail



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on July 1, 2014. The People argued that “[e]ven if the court were to set aside both the

evidentiary presumption that a document mailed is received [Evid. Code, § 641] and the

additional evidentiary presumption . . . that a government employee such as a deputy

court clerk has performed her official duties [Evid. Code, § 664], the testimony of the

unbiased deputy court clerk outweighs the declaration of a biased bail agent which stands

to gain financially.” The People also pointed out that section 1305, subdivision (b)

requires that notice of forfeiture be mailed, but does not require that “receipt be

guaranteed.”

       At an April, 3, 2015, hearing, the court denied the motion.2 At the outset of the

hearing, the court explained that sections 1305 and 1306 require the surety to be

“released of all obligations under the bond if, among other things, the clerk fails to mail

the notice of forfeiture . . . within 30 days after the entry of the forfeiture. . . . [I]f proper

mailing occurs, the Court may, within 90 days, enter summary judgment . . . in the

amount of the bond plus costs. [¶] In this case, we have a declaration from the clerk that

the notice was mailed. Evidence Code section 641 creates a rebuttable presumption that


       2   In its opening brief on appeal, Surety represents that, “[o]n March 24, 2015 the
bail agent [Garcia] brought the defendant [Patterson] to court and surrendered him.” The
record does not support this assertion. Surety cites a March 24, 2015, reporter’s
transcript, but the record does not contain any such transcript. Further, the reporter’s
transcript from the April 3, 2015, hearing on Surety’s motion indicates that Patterson was
still out of custody at that time, and that counsel for Surety expected him to show up in
court at “any moment.” The register of actions also showed that Patterson was arrested
on April 6, 2015, appeared in court on April 7, 2015, and his bail was set at $100,000.
On April 15, 2015, Patterson admitted he had violated the terms of his probation and was
sentenced to 16 months in jail.


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a properly addressed letter has been received. The Court notes that Penal Code section

1305 [subdivision (b)] requires mailing, not actual receipt.” The court also observed that

“there is a presumption that government employees are performing their duty. [Evid.

Code, § 664].”

       The court then heard argument from Surety and the People. Surety’s counsel

represented that Garcia had been conducting his bail bond business at the address listed

on the bond until December 2014, when he began working from his home because his

“landlord did not give him his mail.” Garcia was sworn and briefly testified. He did not

address whether his landlord had not been delivering his mail, but he reaffirmed that he

did not receive the notice of forfeiture; he did not learn of the forfeiture until the Surety

notified him of the summary judgment; and had he known of the forfeiture he would have

contacted Patterson and immediately returned him to court. He had been conducting

business in the same location for 24 years, and he had never failed to return a defendant

to court. He did not have a “tickler system” to track and he did not track when a

defendant has failed to appear, but he explained: “Basically we keep in contact about bail

payments . . . [b]ut . . . unless I receive a notice of forfeiture, I consider them to be a

reliable defendant.”

       At the conclusion of the hearing, the court said: “Unfortunately, you know, it does

come down to a question of credibility. How do we know that perhaps the mail service—

the mailman screwed up and sent the notice someplace else. That’s a possibility. But

under the statute, the presumption is that the clerk mailed it, you received it. So I’m



                                                8
going to have to stand with my tentative and deny the motion.” (Italics added.) Surety

appealed from the April 3, 2015, order denying its motion to set aside the summary

judgment on the bail bond, discharge the forfeiture, and exonerate the bail.

                                    IV. DISCUSSION

A. Surety’s Motion to Vacate the Summary Judgment Was Properly Denied

       Surety claims its motion to vacate the summary judgment was erroneously denied

because the court conclusively presumed, based on Evidence Code sections 641 and 664,

that the clerk mailed the notice of forfeiture to Garcia and that Garcia received it. Thus,

Surety argues, the court “completely disregarded” Garcia’s declaration and testimony at

the hearing that he did not receive the notice, and erroneously failed to consider the

inference, arising from Garcia’s statements, that the clerk did not mail the notice to

Garcia. (Pen. Code, § 1305, subd. (b).) As indicated, this claim is based on a

misinterpretation of the court’s comments at the April 3 hearing on Surety’s motion. The

court’s comments as a whole show that the court did not misapply Evidence Code

sections 641 and 664, and did not fail to consider Garcia’s claim that he did not receive

the notice and the inference it supported—that the clerk did not mail the notice to Garcia.

       First, and as the trial court noted at the outset of the hearing, Penal Code section

1305, subdivision (b) requires the clerk to mail the notice of forfeiture, but nothing in

Penal Code sections 1305 or 1306 requires the People to show the notice was received as

a condition to obtaining summary judgment on the bond. The certificate of mailing was




                                              9
evidence that the notice of forfeiture was mailed.3 The certificate of mailing also gave

rise to two evidentiary presumptions: a presumption affecting the burden of producing

evidence that the notice was received (Evid. Code, § 641 [“A letter correctly addressed

and properly mailed is presumed to have been received in the ordinary course of mail.”]);

and a presumption affecting the burden of proof that the notice was mailed (Evid. Code,

§ 664 [“It is presumed that official duty has been regularly performed.”]).4

       The effect of a rebuttable presumption affecting the burden of producing evidence,

like the presumption that a letter correctly addressed and properly mailed has been

received (Evid. Code, § 641), “is to require the trier of fact to assume the existence of the

presumed fact [that the letter has been received] unless and until evidence is introduced

which would support a finding of its nonexistence [that the letter has not been received],


       3 A clerk’s certificate of mailing under Penal Code section 1305, subdivision (b),
“‘has the same force and effect as [the clerk’s] affidavit’” and, as such, has “the same
evidential status as a testimonial statement sworn under oath.” (People v. Safety National
Casualty Corp. (2010) 186 Cal.App.4th 959, 968-969 (Safety National), quoting Code
Civ. Proc., § 2015.3.)

       4   Evidence Code section 641 is part of article 3 of chapter 3 of the Evidence
Code, which, beginning at Evidence Code section 630, lists “[p]resumptions affecting the
burden of producing evidence.” Evidence Code section 630 states: “The presumptions
established by this article . . . are presumptions affecting the burden of producing
evidence.” Evidence Code section 664, by contrast, creates a presumption affecting the
burden of proof. It is part of article 4 of chapter 3 of the Evidence Code, which,
beginning at section 660, lists presumptions affecting the burden of proof. Evidence
Code section 660 states: “The presumptions established by this article . . . are
presumptions affecting the burden of proof.” (Evid. Code, § 601 states: “A presumption
is either conclusive or rebuttable. Every rebuttable presumption is either (a) a
presumption affecting the burden of producing evidence or (b) a presumption affecting
the burden of proof.”)


                                             10
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.” (Evid. Code,

§ 604, italics added.)

       Thus, and as Surety correctly points out, the rebuttable presumption that a letter

correctly addressed and properly mailed has been received (Evid. Code, § 641)

“disappears” and “has no further effect,” once there is evidence sufficient to support a

finding that the letter was not mailed. (Evid. Code, § 604; Coffey v. Shiomoto (2015) 60

Cal.4th 1198, 1209-1210.) At that point, the trier of fact must “‘weigh the denial of

receipt against the inference of receipt arising from proof of mailing and decide whether

or not the letter was received.’” (Coffey v. Shiomoto, supra, at p. 1210, quoting Assem.

Com. on Judiciary com., reprinted at 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll.

§ 604, p. 59.)

       By contrast, the effect of a rebuttable presumption affecting the burden of proof,

including the presumption that an official duty has been performed (Evid. Code, § 664),

is to “impose upon the party against whom it operates the burden of proof as to the

nonexistence of the presumed fact.” (Gee v. California State Personnel Bd. (1970) 5

Cal.App.3d 713, 718.) Thus, Evidence Code section 664 shifted the burden of proof to

Surety to show that the clerk did not mail the letter.

       Surety’s claim that the court misapplied Evidence Code sections 641 and 664 by

conclusively presuming that the clerk mailed the notice of forfeiture (Evid. Code, § 664)

and that Garcia received the notice in the mail (Evid. Code, § 641) is based on the court’s



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comments at the conclusion of the hearing. The court said: “[U]nder the statute, the

presumption is that the clerk mailed it, you received it. So I’m going to have to stand

with my tentative and deny the motion.” But at the outset of the hearing the court said:

“Evidence Code section 641 creates a rebuttable presumption that a properly addressed

letter has been received”; that “Penal Code section 1305 requires mailing, not actual

receipt”; and “there is a presumption that government employees are performing their

duty,” that is, it was Surety’s burden to prove that the clerk did not mail the notice.

(Italics added.) (Evid. Code, § 664.) The court’s comments at the outset of the hearing

show that it did not conclusively presume that the clerk mailed the notice.

       Additionally, at the conclusion of the hearing, the court observed that:

“Unfortunately, . . . it does come down to a question of credibility. How do we know that

perhaps . . . the mailman screwed up and sent the notice someplace else[?] That’s a

possibility.” These comments plainly show that the court did not disregard Garcia’s

sworn statements that he did not receive the notice.

       In sum, the record shows that the court properly weighed the conflicting evidence

on the question of whether the clerk mailed the notice, and properly concluded, based on

substantial evidence, including the certificate of mailing, that the clerk mailed the notice.

That is, the court reasonably concluded that Garcia’s sworn statements that he did not

receive the notice were insufficient to meet Surety’s burden of proof, under Evidence

Code section 664, that the clerk did not mail the notice—even if Garcia’s sworn




                                             12
statements met Surety’s burden of producing evidence, under Evidence Code section 641,

that Garcia did not receive the notice in the mail.

       This court’s decision in Safety National, supra, 186 Cal.App.4th at pages 972 and

973 is closely analogous. There, we rejected the surety’s claim that the trial court

erroneously denied the surety’s motion to vacate the forfeiture and exonerate the bond.

Similar to Surety’s claim here, the surety in Safety National claimed it “produced

evidence that it had not received the notice of forfeiture, which in turn rebutted any

presumption that the notice had in fact been mailed.” (Id. at p. 972.) In rejecting this

claim, we explained: “The clerk issued a certificate of mailing that substantially

complied with the requirements of Penal Code section 1305, subdivision (b) . . . . There is

a presumption that an official duty has been regularly performed. (Evid. Code, § 664.)

The surety’s evidence was insufficient to overcome this presumption. In its original

motion to vacate the forfeiture and exonerate the bond, the only contrary evidence

presented by the surety was the affidavit of its attorney in fact, that the surety ‘through

normal business operations, has not, to our knowledge, received a forfeiture for [the]

above referenced defendant/bond.’ As county counsel pointed out in response, the

evidence of nonreceipt was ‘minimal,’ and did not demonstrate the clerk’s failure to mail

the notice. . . . At most, the declaration established that the surety had no record it

received the notice, but the surety’s failure to keep adequate records is not a ground for

vacating the forfeiture. In addition, the county counsel had itself received a copy of the

notice of forfeiture in a timely manner. The trial court made a specific factual finding



                                              13
that the surety ‘was notified of bail bond forfeiture.’ This was supported by substantial

evidence; the trial court did not abuse its discretion in so finding.” (Id. at pp. 972-973,

fns. omitted.)

       Here, as in Safety National, the certificate of mailing showed that the clerk mailed

the notice of forfeiture to the surety and the bail agent, that is, to Surety and Garcia.

(§ 1305, subd. (b).) Surety did not claim that it did not receive the notice; it only claimed

that Garcia did not receive the notice. This indicated that the notice was probably mailed

to both Surety and Garcia as the certificate of mailing showed. Further, Surety, through

its counsel, represented at the April 3 hearing that Garcia’s landlord had not been

delivering his mail. Thus, as in Safety National, the trial court did not abuse its discretion

in finding, and substantial evidence shows, that the clerk mailed the notice to Garcia.

(Safety National, supra, 186 Cal.App.4th at p. 973.) The court reasonably determined

that Surety did not meet its burden of proving, or of persuading the court, that the notice

was not mailed to Garcia in the face of the certificate of mailing and the other evidence

that the notice was mailed to Garcia.

       We disagree with Surety’s argument that Safety National is distinguishable

because the surety relied on its attorney’s “hearsay affidavit” to support its claim that it

did not receive the notice of forfeiture. Garcia’s sworn statements that he did not receive

the notice, though based on his personal knowledge, were no more persuasive that the

attorney’s affidavit in Safety National that the surety had no record of having received the

notice. (Safety National, supra, 186 Cal.App.4th at p. 973.) Further, this court treated



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the attorney’s affidavit in Safety National as a competent, sworn statement, but it made a

weak or “minimal” showing. (Id. at p. 973 & fn. 6.)

B. The Trial Court Properly Declined to Vacate the Summary Judgment Based on the

“Extrinsic Mistake” That the Notice of Forfeiture Was Not Delivered to Garcia

       Lastly, Surety argues the trial court should have granted its alternative request to

grant Surety equitable relief and vacate the summary judgment based on the “extrinsic

mistake” that the notice of forfeiture was not delivered to Garcia. This claim bears little

discussion. Plainly, the doctrine of extrinsic mistake does not apply.

       The doctrine of extrinsic mistake was aptly summarized in Lee v. An (2008) 168

Cal.App.4th 558 at page 566: “[A] trial court retains discretion to vacate a default on

equitable grounds, even if statutory relief is unavailable. (Rappleyea v. Campbell (1994)

8 Cal.4th 975, 981 . . . .) ‘One ground for equitable relief is extrinsic mistake—a term

broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a

hearing on the merits.’ (Ibid.) But for a party to qualify for such equitable relief on this

basis, courts have developed a three-part test: first, the defaulted party must demonstrate

it has a meritorious case; second, it must articulate a satisfactory excuse for not

presenting a defense to the original action; and third, the moving party must demonstrate

diligence in seeking to set aside the default once it was discovered. [Citation.]” (Italics

added.) Here, Surety’s motion to vacate the summary judgment was heard on its merits,

and Surety did not demonstrate that it had a meritorious case. There was no “default” or

default judgment to set aside on the basis of extrinsic mistake.



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       Nonetheless, Surety claims the “extrinsic mistake” was that Garcia did not receive

the notice of forfeiture because it may have been lost in the mail or delivered to the

wrong address. But Surety was not entitled to vacate the summary judgment on the

ground that Garcia did not receive the notice. (§ 1305, subd. (b).) Thus, it is of no

moment whether the notice was lost in the mail, or why Garcia did not receive the notice,

if, in fact, Garcia did not receive the notice. Garcia’s claim that he never received the

notice was only relevant to show that the clerk did not mail the notice.

                                        V. DISPOSITION

       The order denying Surety’s motion to vacate the summary judgment on bail bond

No. U25-20491367 is affirmed. The People shall recover their costs on appeal. (Cal.

Rules of Court, rule 8.278.)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                RAMIREZ
                                                                                            P. J.


We concur:

HOLLENHORST
                           J.

SLOUGH
                           J.




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