Admitted Surety Insurer California
In Chodos v. Insurance Co. of North America (1981), the Second District construed former Code of Civil Procedure section 1056 (repealed; restated in Code Civ. Proc., 995.120, 995.310, 995.610, 995.630) and former Code of Civil Procedure section 1057b (repealed; restated in Code Civ. Proc., 995.650).
Former section 1057b reads as follows:
"A corporate surety, as provided in Section 1057a, shall not be required to justify unless the person excepting to the sufficiency of the surety serves and files:
(1) the county clerk's certificate provided for in Section 1057a stating that the surety has not been certified to him by the Insurance Commissioner as an admitted surety insurer or that the certificate of the surety has been surrendered, revoked, canceled, annulled or suspended and not thereafter renewed;
(2) An affidavit stating facts which establish the insufficiency of the bond or surety."
Because the plaintiff in Chodos had not timely objected to the bond filed to stay the enforcement of the underlying judgment ( Code Civ. Proc., 917.1), the court held that plaintiff had waived his right to except to the insufficiency of the bond. ( Chodos v. Insurance Co. of North America, supra, 126 Cal. App. 3d 81, 84-85.)
Former section 1057b is restated in Code of Civil Procedure section 995.650 as follows: "If an objection is made to the sufficiency of an admitted surety insurer, the person making the objection shall attach to and incorporate in the objection one or both of the following:
(a) the certificate of the county clerk of the county in which the court is located stating that the insurer has not been certified to the county clerk by the Insurance Commissioner as an admitted surety insurer or that the certificate of authority of the insurer has been surrendered, revoked, canceled, annulled, or suspended and has not been renewed.
(b) An affidavit stating facts that establish the insufficiency of the insurer."
Significantly, section 995.650 is similar to the former statute in all material respects except that it omits the first sentence of former section 1057b that "a corporate surety . . . shall not be required to justify unless the person excepting to the sufficiency of the surety serves and files" certain documents.
Because we must presume the Legislature was aware of the Chodos opinion when it repealed the former statute and omitted the phrase from Code of Civil Procedure section 995.650 (see White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 572, 981 P.2d 944 "when the Legislature amends a statute, we presume it was fully aware of the prior judicial construction"), we view that omission as an intent by the Legislature to no longer require a person to except to the sufficiency of the surety before a corporate surety will be held accountable.