American Contractors Indemnity Co. v. County of Orange

In American Contractors Indemnity Co. v. County of Orange (2005) 130 Cal.App.4th 579, a surety moved to set aside a forfeiture and exonerate a bail bond, arguing that the notice of forfeiture did not comply with the requirements of Penal Code section 1305, subdivision (b). The surety argued that the notices were defective because neither the notice of forfeiture nor the clerk's certificate of mailing included the addresses of the surety and the bail agent. (The address requirements are requirements of Pen. Code, 1305, subd. (b), not Code Civ. Proc., 2015.5.) The appellate court agreed that the notices were defective under Penal Code section 1305, subdivision (b): "Here, the Notice of Forfeiture included four pages, the Notice of Forfeiture, the bail bond, and the bail receipt. The Notice of Forfeiture was addressed to Pacific and American, but it does not include their addresses. More importantly, the court clerk's declaration of service by mail does not include their addresses as required by section 1013a, subdivision (4). The court clerk's declaration of service by mail must include the surety's and bail agent's addresses. ( 1013a, subd. (4) ... .) Although the bail bond includes American's and Pacific's addresses, it is not part of the certificate of mailing and does not satisfy section 1013a, subdivision (4)'s requirements because the bail bond was not prepared by the clerk under penalty of perjury." (American Contractors, at p. 583.) Note, the court did not hold that the certificate of mailing was required to be prepared under penalty of perjury. Rather, it held that the bail bond--a separate document that did not originate with the court--in contrast with the notice of forfeiture, could not be incorporated into the clerk's certificate of mailing; the bail bond had not been prepared by the clerk under penalty of perjury. However, even though the notices were defective under Penal Code section 1305, subdivision (b), the defects did not require that the bond be exonerated, because other evidence showed that the surety had received actual notice of the forfeiture. (American Contractors, at p. 584.)