Filed 4/21/17; pub. order 5/2/17 (see end of opn.) 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

INTERNATIONAL FIDELITY 

INSURANCE CO.,

Defendant and Appellant.

D070060

(Super. Ct. No. 37-2015-00028283-

 CU-EN-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Lisa 

Schall, Judge. Affirmed.

Law Office of John Rorabaugh, John M. Rorabaugh and Robert Tomlin White for 

Defendant and Appellant.

Thomas E. Montgomery, County Counsel, and Ayriel A. Bland, Deputy County 

Counsel, for Plaintiff and Respondent.

Appellant International Fidelity Insurance Co. (Fidelity), acting through its agent 

King Stahlman Bail Bonds, posted a $100,000 bail bond on behalf of Catalin Gabriel 
2

Vaja (defendant) who later failed to make a required appearance. The trial court forfeited 

the bond under Penal Code1 section 1305 and later entered summary judgment against 

Fidelity. Fidelity appeals from an order denying its motion to set aside the judgment 

entered on the forfeited bail bond. Fidelity contends that, without its knowledge or 

consent, the trial court added conditions to defendant's bail that materially increased its

risk under the bond. Thus, Fidelity claims the bond should be exonerated. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Police arrested defendant on charges of driving under the influence (DUI) (Veh. 

Code, § 23152, subd. (a)), obtaining a subsequent DUI charge within 10 years of previous 

DUI conviction (Veh. Code, § 23550.5, subd. (a)), and driving when privilege is 

suspended or revoked. (Veh. Code, § 14601.1, subd. (a).) Fidelity, though its bail agent,

posted a bail bond for defendant's release from custody. The following month, defendant 

appeared in court for arraignment. The trial court ordered defendant released on bail with 

conditions to: (1) not drive during the pendency of the case; (2) attend three Alcoholics

Anonymous (AA) meetings per week; and (3) abstain from alcohol. Defendant later 

appeared for his preliminary hearing. At the hearing, the trial court noted that defendant 

was facing arraignment on a misdemeanor driving case and heard argument from counsel 

about a "SCRAM" monitoring system which monitors alcohol consumption 

transdermally and immediately sends a report to the court should defendant consume any 

alcohol. Instead of raising bail, as an additional condition of the defendant's continued 

 

1 Undesignated statutory references are to the Penal Code.
3

release on the posted bail amount, the court required that defendant enroll in the SCRAM 

monitoring system within 48 hours.

Defendant failed to appear for trial. The trial court ordered a bench warrant and 

forfeited the bail bond. The court sent notice of forfeiture to Fidelity. The court later 

granted an extension of time for defendant to appear. Ultimately, the trial court granted 

summary judgment on the bond and entered a judgment on the defaulted bond against 

Fidelity. The court later denied Fidelity's motion to set aside the summary judgment, 

ruling that "the Defendant in this matter was lawfully required to appear because the 

Court expressly ordered the Defendant to appear," that "[t]he public safety conditions 

imposed by the Court did not materially alter the chances of the Defendant's flight risk,"

and therefore Fidelity "failed to meet its burden." Fidelity timely appealed.

DISCUSSION

I. LEGAL PRINCIPLES 

A bail bond is a contract between the government and the surety. Under this 

contract, the surety acts as guarantor of the criminal defendant's appearance in court and 

risks forfeiture of the bond if the defendant fails to appear. (People v. American 

Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) "When a defendant who posts 

bail fails to appear at a scheduled hearing, the forfeiture of bail implicates not just the 

defendant's required presence, but constitutes a 'breach of this contract' between the 

surety and the government. [Citation.] Ultimately, if the defendant's nonappearance is 

without sufficient excuse, it is the surety who 'must suffer the consequences.' " (People v. 

Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709.)
4

Statutes govern the forfeiture and exoneration of bail. (§ 1305 et seq.) When a 

defendant who has been released on bail fails to appear in court as required without a 

sufficient excuse, the trial court is required to declare bail forfeited. (§ 1305, subd. 

(a)(1).) Within 30 days of the forfeiture, the court clerk must serve notice of the 

forfeiture on the surety and its bail agent, and, if the bond amount exceeds $400, the 

notice of forfeiture must be served by mail. (§ 1305, subd. (b)(1).) The surety 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 on any of the grounds set forth in section 

1305. (§ 1305, subd. (b)(1); People v. United States Fire Ins. Co. (2015) 242 

Cal.App.4th 991, 999.) The 185-day period is known as either the "exoneration period"

or the "appearance period." (People v. United States Fire Ins. Co., at p. 1000.) The trial 

court may extend the original 185-day appearance period up to 180 additional days, on 

motion supported by a showing of good cause. (§ 1305.4.) If the surety fails to obtain 

relief from the forfeiture within the appearance period, including extensions, the court 

shall enter summary judgment against the surety on the bond, plus costs. (§ 1306, subd. 

(a).)

An order denying a motion to set aside the forfeiture of a bail bond is appealable. 

(People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1382.) We normally review an 

order denying a motion to set aside the forfeiture of a bail bond for abuse of discretion. 

(County of Los Angeles v. American Contractors Indemnity Co. (2011) 198 Cal.App.4th 

175, 178.) When, however, the issue is one of statutory construction or contract 

interpretation, and the evidence is undisputed, we review the order de novo. (Ibid.) 
5

II. ANALYSIS

Fidelity argues it did not enter into a bail bond contract that included conditioning 

defendant's release upon defendant's attendance at three AA meetings per week and his 

adherence to the restrictions of a SCRAM device. Fidelity asserts that the court's act of 

placing additional conditions and government control upon defendant's release materially 

altered the bail bond contract to increase its risks. Additionally, it asserts that the court's 

failure to provide notice of the additional conditions voided the bail bond contract 

between it and the court. Accordingly, it claims that the subsequent bail forfeiture and 

summary judgment are void and must be set aside. 

Section 1305 sets forth the statutory grounds for vacating forfeiture and 

exonerating a bond. (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 5.) Section 

1305, however, does not set forth the exclusive bases for vacating a forfeiture. (People v. 

Bankers Ins. Co. (2016) 247 Cal.App.4th 1004, 1011.) Rather, courts must consider the 

bonding language and "whether the government's actions materially increased the risk 

that the surety had accepted." (Ibid.) "[I]f the government materially increases the risk to 

the surety beyond the express terms of the bond without notice to the surety or the 

surety's consent, the government violates its contract with the surety, and the surety is 

entitled to vacation of the forfeiture and exoneration of the bond." (Ibid.) The surety has 

the burden of showing, with competent evidence, that a forfeiture of its bail should be set 

aside. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 725.) 

Accordingly, the surety has the burden of showing that the bail conditions materially 

increased its risks. 
6

In determining the limits of the surety's risk, we look to the provisions of the bond 

itself, along with applicable statutes. (People v. North Beach Bonding Co. (1974) 36 

Cal.App.3d 663, 668, disapproved on other grounds in People v. Safety National 

Casualty Corp., supra, 62 Cal.4th at p. 716, fn. 5.) We apply the de novo standard of 

review because the issues turn on the terms of the bail contract and the relevant evidence 

is not in dispute. (County of Los Angeles v. American Contractors Indemnity Co., supra, 

198 Cal.App.4th at p. 178.) The bond issued by Fidelity provides in relevant part:

"Now, the INTERNATIONAL FIDELITY INSURANCE 

COMPANY, a New Jersey corporation, hereby undertakes that the 

above-named defendant will appear in the above-named court on the 

date set forth to answer any charge in any accusatory pleading based 

upon the acts supporting the complaint filed against him/her and all

duly authorized amendments thereof, in whatever court may be 

prosecuted, and will at all times hold him/herself amenable to the 

orders and process of the court, and if convicted, will appear for 

pronouncement of judgment or grant of probation; or if he/she fails 

to perform either of these conditions, that the INTERNATIONAL 

FIDELITY INSURANCE COMPANY, a New Jersey corporation, 

will pay the People of the State of California, the sum of

[$100,000]." (Italics added.)

The trial court has discretion to "set bail on the terms and conditions [it] deems 

appropriate." (§ 1269c.) Specifically, the trial court has the power to impose reasonable 

bail conditions intended to ensure public safety. (Gray v. Superior Court (2005) 125 

Cal.App.4th 629, 642.) The question presented is whether the court's act of conditioning 

bail on defendant not driving during the pendency of the case, attending three AA 

meetings per week, abstaining from alcohol, and adhering to the restrictions of a SCRAM 

device materially increased the risk to Fidelity beyond that contemplated by the express 
7

language of the bond. As we shall explain, Fidelity has not established that these

conditions materially increased its risk.

As a preliminary matter, we reject Fidelity's argument that the trial court was 

required to provide it notice before imposing any bail conditions and that the failure to 

provide notice rendered the bail contract void. Fidelity cited no California authority to 

support its argument that it was entitled to such notice and nothing in any of the bail 

statutes (§§ 1268-1320) required the court or the People provide a surety notice of bail 

conditions. Rather, Fidelity relied on inapposite out-of-state authority, namely: State v. 

Sedam (2005) 34 Kan.App.2d 624 [122 P.3d 829] (Kansas); United States v. King (7th 

Cir. 2003) 349 F.3d 964 (King) and United States v. Gambino (1992) 809 F.Supp. 1048

(Gambino).

In Kansas, the court vacated a judgment against the surety finding that the trial 

court's order subjecting defendant to supervision while on bail, including urinalysis and 

weekly check-ins, without notice to the surety amounted to a material change to the bond. 

(Kansas, supra, 122 P.3d at p. 831.) There, however, the bond expressly provided: "If 

the amount of the bond required for the person's appearance or the other conditions are 

modified from the above amount or conditions, then this bond is null and void, and a new 

bond in the required amount and/or with the modified other conditions must be posted at 

the time." (Id. at p. 830.) In contrast, the bond at issue does not contain an express 

modification clause; rather, it acknowledged and agreed that defendant would be 

amenable to the trial court's orders and contained no requirement that the surety be given 
8

notice of those orders. If Fidelity desired notice of the imposition of bail conditions, it 

could have negotiated such a provision in the bail contract. 

Fidelity cites King, supra, 349 F.3d 964 and Gambino, supra, 809 F.Supp. 1048

for the proposition that a surety is entitled to notice of changes made to a defendant's 

conditions of bail. In both cases, the court held that a surety is entitled to notice of a 

material change to the conditions of a bond, but ultimately found that the respective 

change in condition had not materially increased the surety's risk. (King, at pp. 966, 968 

[defendant's travel to Nigeria and then return to United States, where defendant vanished, 

did not materially increase risk of flight]; Gambino, at pp. 1055, 1056 [removal of 

electronic monitoring bracelets, under circumstances of case, did not significantly 

increase defendants' risk of flight.].) When the recognizance of bail is accepted, an 

implied covenant on the part of the government exists that it will not "take any 

proceedings with the principal which will increase the risks of the sureties or affect their 

remedy against him." (Reese v. United States (1869) 76 U.S. 13, 22 (Reese); People v. 

Western Ins. Co. (2013) 213 Cal.App.4th 316, 322 (Western) [same, quoting Reese].) 

"Accordingly, a surety is discharged from its liability under the bail bond agreement if 

the government, without the surety's consent or knowledge, materially increases the 

surety's risks." (Western, at p. 322.) Here, even assuming Fidelity was entitled to notice 

of the change in bail conditions, Fidelity should not be discharged from its liability as it 

has not established the changed conditions significantly increased defendant's risk of 

flight.
9

Under the bail bond, Fidelity accepted responsibility for ensuring that defendant 

would appear on a number of DUI related charges, including driving with a suspended or 

revoked license. The bail bond reflected that defendant was charged with driving under 

the influence with a suspended or revoked license; thus, Fidelity necessarily knew 

defendant could not legally drive regardless of conditioning bail on defendant not driving 

during the pendency of the case. Accordingly, the no driving condition did not materially 

increase Fidelity's risk.

Fidelity has not presented any evidence showing how the conditions requiring 

defendant to attend three AA meetings per week, abstain from alcohol, or adhere to the 

restrictions of a SCRAM device materially increased defendant's flight risk. " 'The object 

of bail and its forfeiture is to insure the attendance of the accused and his obedience to 

the orders and judgment of the court.' " (People v. Safety National Casualty Corp. (2016) 

62 Cal.4th 703, 709.) Here, the conditions imposed by the trial court are unrelated to 

future court appearances. (Contra, Reese, supra, 76 U.S. at p. 22 [allowing a defendant to 

leave country without notice to the surety materially increased risks on a surety relating 

to defendant's future court appearances]; Western, supra, 213 Cal.App.4th at pp. 323-324 

[same].) Fidelity has not presented any evidence (or persuasive argument) showing how 

these conditions undermined the primary object of bail—defendant's continuing 

appearance. Nothing in the record compels a finding that these conditions increased 

Fidelity's risk to the extent that the bail contract was void as a matter of law. Thus, the 
10

court did not err by denying Fidelity's motion to set aside the summary judgment.2 As 

another court noted, Fidelity could have monitored defendant's case and surrendered him 

to custody if it believed that the bail conditions increased defendant's risk of flight. 

(People v. Bankers Ins. Co., supra, 181 Cal.App.4th at p. 6.)

DISPOSITION

The order denying Fidelity's motion to vacate the forfeiture and exonerate the 

bond and the summary judgment on the bond are affirmed. The People shall recover 

their costs on appeal. (Cal. Rules of Court, rule 8.278.)

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

 

2 For the first time in its reply brief, Fidelity argues that the bail conditions were 

unauthorized by law as they waived defendant's constitutional rights. Waiting until the 

reply brief to make an argument forfeits the argument. (People v. Bonilla (2007) 41 

Cal.4th 313, 349-350.) Accordingly, we deem the argument forfeited and decline to 

address it. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [" 'points raised in the 

reply brief for the first time will not be considered, unless good reason is shown for 

failure to present them before' "].)
Filed 5/2/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

INTERNATIONAL FIDELITY 

INSURANCE CO.,

Defendant and Appellant.

 D070060

 (Super. Ct. No. 37-2015-00028283-

 CU-EN-CTL)

 ORDER CERTIFYING OPINION

 FOR PUBLICATION

THE COURT:

The opinion in this case filed April 21, 2017, was not certified for publication. It 

appearing the opinion meets the standards for publication specified in California Rules of 

Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a) 

for publication is GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c), AND
2

ORDERED that the words "Not to Be Published in the Official Reports" appearing 

on page 1 of said opinion be deleted and the opinion herein be published in the Official 

Reports.

HUFFMAN, Acting P. J.

Copies to: All parties