BBBB Bonding Corp. v. Caldwell ( 2021 )

Filed 12/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BBBB BONDING CORPORATION,
Plaintiff, Cross-defendant and
Appellant, A162453
v. (Alameda County
KIARA CALDWELL, Super. Ct. No. RG19041553)
Defendant, Cross-complainant
and Respondent.
This appeal requires us to interpret a long-standing consumer
protection statute in a novel context: whether the requirement under Civil
Code section 1799.91 that notice be afforded to cosigners of consumer credit
contracts about the risks of guaranteeing such an agreement applies to bail
bond premium financing agreements.1 We conclude that it does.
In this putative class action, the trial court enjoined appellant BBBB
Bonding Corporation, doing business as Bad Boys Bail Bonds (BBBB), from
enforcing bail bond premium financing agreements entered into by
respondent Kiara Caldwell and other similarly situated persons who had
cosigned on behalf of an arrestee without having first been provided with this
statutory notice. BBBB asserts that this consumer protection law has never
applied to bail bond agents or to bail bond premium contracts before. BBBB
1 All further undesignated statutory references are to the Civil Code.
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raises many substantive and procedural challenges to the trial court’s
preliminary injunction, arguing primarily that because the Legislature
adopted a comprehensive scheme to regulate the conduct of bail bond
licensees, it intended to exclude from such transactions the consumer
protections applicable to consumer credit contracts.
We hold that a bail bond premium financing agreement between a
cosigner and the bail bond agent is a consumer credit contract subject to the
notice provision of section 1799.91 and related statutory protections. No
statute or regulatory provision supports BBBB’s claim that the legal regime
governing bail bond licensees was intended to operate as the exclusive source
of law for the bail bond industry. Nor is BBBB able to identify any licensee
provision that stands in conflict with the cosigner notice requirement. While
we appreciate that this decision may upend business expectations for bail
bond agents, we cannot accept BBBB’s urging that the injunction should
apply only on a prospective basis. To do so would deprive respondent and
other cosigners who never received statutory warning of the risks of cosigning
a bail bond premium financing agreement of the protections the consumer
credit laws were designed to address. We reject BBBB’s other challenges to
the issuance of the preliminary injunction and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2018, Caldwell was contacted by BBBB and informed that
her friend D.C. had been arrested and was being held in the City of San
Leandro jail. To bail her friend out, Caldwell was asked to sign several
documents and provide a bail bond premium. Caldwell signed
an “Unpaid Premium Agreement” (Premium Agreement) in which she
became legally responsible for the bail bond premium of $5,000, representing
10 percent of D.C.’s bail. Pursuant to the Premium Agreement, Caldwell
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agreed to make a downpayment of $500 and pay the balance due of $4,500 in
$450 monthly installments until paid in full.
Caldwell was also required to sign an “Indemnity Agreement for Surety
Bail Bond” (Indemnity Agreement) with the North River Insurance Company
(North River). That contract provided that the bail bond premium payment
would be “fully earned” upon D.C.’s release from jail, and would be renewed
annually until the surety was legally discharged from all liability on the bond
posted. Finally, Caldwell signed an “Indemnitor/ Guarantor Check List,”
which contained a series of acknowledgements, including an acknowledgment
that she was responsible for making payments on the premium. Caldwell
was told that D.C. would separately sign her own copies of the same
contracts. Caldwell asserts that she was not informed of the financial risks
associated with cosigning for D.C.’s bail bond, and maintains that she would
not have cosigned for the bail bond premium if she had been provided with
the section 1799.91 notice.
Caldwell was unable to make the installment payments beyond the
initial $500 deposit. BBBB attempted to collect from her, repeatedly calling
her phone, her mother, and her place of employment in an effort to persuade
her to resume payments. BBBB representatives reportedly threatened
litigation and claimed she could lose her job if she did not make payments.
Eventually, Caldwell changed her cell phone number to avoid the repeated
phone calls. Other cosigners attested to similar aggressive collection efforts
by BBBB, including highly embarrassing calls to employers, calls made to
homes very early in the morning or late at night, and calls in which BBBB
representatives stated it could have the cosigner arrested if payment was not
made.
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In October 2019, BBBB initiated a collection action by filing a
complaint for breach of contract and common counts against Caldwell. BBBB
alleged she had breached the Premium Agreement by failing to pay the
$4,500 owing on the bail bond premium.
In October 2020, Caldwell filed a class action cross-complaint against
BBBB alleging causes of action for violation of the unfair competition law
(Bus. & Prof. Code § 17200 et seq.; UCL) and declaratory judgment. Caldwell
alleged that BBBB had engaged in an unfair and unlawful business practice
in violation of the UCL by failing to provide statutory notice of the risks of
cosigning a consumer credit contract under section 1799.91. She sought
restitution of the money she and other putative class members had paid for
bail bond premiums, a declaratory judgment that the Premium Agreements
are unenforceable, and an injunction prohibiting BBBB from enforcing these
agreements and requiring it to provide notice to cosigners in compliance with
section 1799.91. She also requested costs and attorney fees.
Caldwell then filed a motion for a preliminary injunction seeking to
enjoin BBBB from enforcing or attempting to collect on Premium Agreements
signed by cosigners who were not provided with the notice required by
section 1799.91. In her moving papers, Caldwell alleged that BBBB
commenced at least 150 lawsuits against similarly situated cosigners in the
18-month period from July 1, 2019 through December 31, 2020. Her motion
was supported by declarations from several individuals who had cosigned
identical or nearly identical Premium Agreements without such notice and
had been subjected to BBBB’s aggressive collection efforts.
On April 8, 2021, the trial court granted Caldwell’s motion for a
preliminary injunction. In reviewing the collections complaints filed by
BBBB in the other actions, the trial court found that the premium
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agreements were “typically signed by both the arrestee and the family or
friend who acts as an indemnitor.” The trial court determined that Caldwell
had shown a substantial likelihood of success on the merits of her UCL claim
under the UCL’s unlawful prong. The court found that the premium
financing agreements are consumer credit contracts subject to the notice
requirements of section 1799.91, and it rejected BBBB’s argument that
compliance with bail bond licensing regulations exempted it from complying
with consumer protection statutes.
The court further found that the balance of hardships tipped decidedly
towards Caldwell because she had demonstrated that she and others like her
had been victimized by BBBB’s failure to provide section 1799.91 notice. On
the other hand, the injunction would not interfere with BBBB’s ability to
conduct business in California, provided it complied with state consumer
protection laws.
The court enjoined BBBB from filing any actions to enforce or collect on
bail bond premium agreements against cosigners who were not provided with
section 1799.91 notice, or from otherwise attempting to collect on such
agreements. BBBB was also enjoined from prosecuting any actions already
filed, or seeking to enforce, execute, or collect on any judgments against such
cosigners. The court also waived any bond requirement based on undisputed
evidence that the cost of posting an injunction bond would be well beyond
Caldwell’s reach.
The trial court’s ruling was stayed for 15 days. Shortly before that stay
expired, BBBB petitioned this court for a writ of supersedeas. We stayed the
trial court’s ruling and ordered expedited briefing.
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II. RELEVANT STATUTORY SCHEMES
At the center of this appeal are two statutory schemes: consumer credit
protections under the Civil Code (§ 1799.90 et seq.), and the Bail Bond
Regulatory Act (Ins. Code, § 1800 et seq.). Before setting forth the parties’
arguments, we describe these overlapping statutes.
A. California Consumer Credit Protection Laws
In 1975, the Legislature enacted a series of laws commencing with
section 1799.90 designed to inform unsuspecting consumers of the
consequences of cosigning consumer credit contracts for friends and family
members. (See Stats. 1975, ch. 847, §§ 1, 2, pp. 1912–1914, operative April 1,
1976.) Prior to the enactment of these statutes, there were no provisions
requiring creditors to notify such cosigners that they could be held liable for
the financial obligation on the contract even when they do not receive any of
the goods or services that are the subject of the contract. (See Legis. Counsel’s
Dig., Sen. Bill No. 560 (1975–1976 Reg. Sess.) Stats. 1975, Summary Dig.,
p. 214.)
Under the notice provision, if a creditor obtains the signature of more
than one person on a consumer credit contract, and the signatories are not
married, the creditor must provide the cosigner with a specified cosigner
notice. Section 1799.91, subdivision (a) provides in relevant part:
“Unless the persons are married to each other, each
creditor who obtains the signature of more than one
person on a consumer credit contract shall deliver to
each person who does not in fact receive any of the
money, property, or services which are the subject
matter of the consumer credit contract, prior to that
person’s becoming obligated on the consumer credit
contract, a notice in English and Spanish in at least
10-point type as follows:
“NOTICE TO COSIGNER . . .
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“You are being asked to guarantee this debt. Think
carefully before you do. If the borrower doesn’t pay the
debt, you will have to. Be sure you can afford to pay if
you have to, and that you want to accept this
responsibility.
“You may have to pay up to the full amount of the debt
if the borrower does not pay. You may also have to pay
late fees or collection costs, which increase this
amount.
“The creditor can collect this debt from you without
first trying to collect from the borrower. The creditor
can use the same collection methods against you that
can be used against the borrower, such as suing you,
garnishing your wages, etc. If this debt is ever in
default, that fact may become a part of your credit
record.
“This notice is not the contract that makes you liable
for the debt.”
If the required cosigner notice is not given, the creditor may not enforce
any resulting security interest against the cosigner. (§ 1799.95 [“No action
shall be brought, nor shall any security interest be enforced, by any creditor
or any assignee of a creditor on any consumer credit contract which fails to
comply with this title against any person, however designated, who is
entitled to notice under Section 1799.91 and who does not in fact receive any
of the money, property or services which are the subject matter of the
consumer credit contract.”].)
The cosigner provisions apply to any “ ‘Consumer credit contract,’ ”
defined in the statute as an “obligation[] to pay money on a deferred payment
basis, where the money, property, services or other consideration which is the
subject matter of the contract is primarily for personal, family or household
purposes” and the obligation falls within any of six broad categories: (1) retail
installment contracts; (2) retail installment accounts; (3) conditional sales
7
contracts; (4) loans or extensions of credit secured by other than real property
or unsecured; (5) loans or extensions of credit that are subject to certain
Business and Professions Code provisions related to real property loans; and
(6) lease contracts. (§ 1799.90, subd. (a).) California’s cosigner notice
protections apply across a wide array of consumer credit contracts and
“should be liberally construed to promote that protection, if such a
construction does not contradict the plain language of the statute or lead to
absurd results.” (Garver v. Brace (1996) 47 Cal.App.4th 995, 1002; see also
Maldonado v. Fast Auto Loans, Inc. (2021) 60 Cal.App.5th 710, 721
[“California’s consumer protection laws must be liberally, not narrowly,
applied.”].)
B. Bail Bond Contracts and Statutory Scheme
“While bail bond proceedings occur in connection with criminal
prosecutions, they are independent from and collateral to the prosecutions
and are civil in nature. [Citation.] ‘The object of bail and its forfeiture is to
insure the attendance of the accused and his [or her] obedience to the orders
and judgment of the court.’ ” (People v. American Contractors Indemnity Co.
(2004) 33 Cal.4th 653, 657.)
The bail bond transaction “is a function of ‘two different contracts
between three different parties’—namely, (1) a contract between a criminal
defendant and a surety under which the surety posts a bail bond in exchange
for the defendant’s payment of a premium and his [or her] promise to pay the
full amount of the bond in the event of his [or her] nonappearance, and (2) a
contract between the surety and the People under which the surety ‘ “ ‘ “act[s]
as a guarantor of the defendant’s appearance in court under risk of forfeiture
of the bond.” ’ ” ’ ” (People v. The North River Ins. Co. (2020) 48 Cal.App.5th
226, 235.) If the defendant fails to appear, the surety becomes the state’s
8
absolute debtor for the full amount of the bond. (People v. Financial Casualty
& Surety, Inc. (2019) 39 Cal.App.5th 1213, 1225; see also People v. Ranger
Ins. Co. (1994) 31 Cal.App.4th 13, 22.)
This appeal raises questions about a third contract not previously
addressed by the above authorities—bond premium financing agreements
between an arrestee (or cosigner) and the bail bond agent to finance the
payment of the premium. A bail bond is generally arranged by a bail agent
who acts on behalf of the surety company. The client (the arrestee and/or a
friend or family member) utilizes the services of the bail agent to secure the
undertaking of bail and the arrestee’s release from detention. The bail agent
charges the client the bail premium, which is normally set at 10 percent of
the cash bail amount. This bail premium is typically nonrefundable.2 If the
client cannot afford to pay the full bail premium amount, the bail agent may
offer to arrange for installment payments to be made over time until the debt
is paid off.
The bail bond industry is regulated under the Bail Bond Regulatory Act
(Ins. Code, § 1800 et seq.). The law regulates the licensing and conduct of
bail bond agents and surety insurers. (See McDonough v. Goodcell (1939)
13 Cal.2d 741, 743–744.) “Surety insurers are required by law to execute bail
undertakings through licensed bail agents (bail bondsmen), and only such
licensees may post bail.” (Taylor v. Financial Casualty & Surety, Inc. (2021)
67 Cal.App.5th 966, 989–990.)
Insurance Code section 1812 authorizes the Insurance Commissioner to
promulgate reasonable rules for the “administration and enforcement” of the
2Because sureties are “at risk for paying the entire posted bail if [a
defendant] abscond[s] at any time, the law permit[s] [sureties] to make the
premium nonrefundable.” (Indiana Lumbermens Mutual Ins. Co. v.
Alexander (2008) 167 Cal.App.4th 1544, 1547.)
9
statutory scheme. The Department of Insurance (Department) issues
regulations that supplement the statutory scheme. (See Cal. Code Regs.,
tit. 10, § 2053 et seq.) These regulations address bail licensing requirements
(id., §§ 2055–2059), the conduct of bail licensees (id., §§ 2064–2092), and the
filings, statements, and records that bail licensees must maintain in
connection with bail transactions (id., §§ 2094–2104).
III. DISCUSSION
A. Standard of Review
“ ‘Pursuant to long-standing Supreme Court case law, “trial courts
should evaluate two interrelated factors when deciding whether or not to
issue a preliminary injunction. The first is the likelihood that the plaintiff
will prevail on the merits at trial. The second is the interim harm that the
plaintiff is likely to sustain if the injunction were denied as compared to the
harm that the defendant is likely to suffer if the preliminary injunction were
issued.” [Citation.] We review a trial court’s application of these factors for
abuse of discretion.’ ” (Urgent Care Medical Services v. City of Pasadena
(2018) 21 Cal.App.5th 1086, 1092.) The party challenging the injunction has
the burden to make a clear showing of an abuse of discretion, and “[a] trial
court will be found to have abused its discretion only when it has ‘ “exceeded
the bounds of reason or contravened the uncontradicted evidence.” ’ ” (IT
Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.)
“[Q]uestions underlying the preliminary injunction are reviewed under
the appropriate standard of review. Thus, for example, issues of fact are
subject to review under the substantial evidence standard; issues of pure law
are subject to independent review.” (People ex rel. Gallo v. Acuna (1997)
14 Cal.4th 1090, 1136–1137 (Gallo).)
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B. Likelihood of Success on the Merits
BBBB raises numerous challenges to the trial court’s determination
that Caldwell was likely to succeed on the merits of her UCL claims. Because
many of these contentions turn on questions of statutory interpretation or
other questions of law, we review such claims de novo. (Millennium Rock
Mortgage, Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804, 808–809.)
Where other standards of review are applicable to our analysis, we discuss
our review of those matters below.
i. The Bail Bond Industry Is Not Categorically Exempt From
Consumer Protection Statutes
BBBB first contends that consumer protection laws, such as the
cosigner notice provision, have no application to bail bond transactions
because the bail bond industry is governed by its own statutory scheme—the
Bail Bond Regulatory Act and its licensee regulations. BBBB maintains that
it has not violated any provision of the Insurance Code or any of the
Department’s administrative regulations. It observes that these provisions
do not refer to any aspect of a bail bond transaction with the terms “credit” or
“loan,” nor do they characterize unpaid bail bond premiums as involving
“having a borrower or involving credit.” BBBB in effect argues that because
the Legislature created a comprehensive scheme to regulate the conduct of
bail bond licensees, it intended to exclude from such transactions the
consumer protections applicable to other kinds of contracts.
BBBB fails to support this argument by reference to any statutory text,
legislative history, or court precedent. Nothing within the text of California’s
consumer credit laws offers any indication that the Legislature intended to
exclude bail bond transactions that otherwise qualify as a “ ‘Consumer credit
contract’ ” within the meaning of section 1799.90, subdivision (a). On the
contrary, we must construe consumer protection statutes liberally so as to
11
accomplish their remedial purpose. (Pitney-Bowes, Inc. v. State of California
(1980) 108 Cal.App.3d 307, 324.) As noted above, the Legislature intended to
protect cosigners from unwittingly tying themselves to onerous consumer
credit agreements by requiring that notice be given of the financial obligation
cosigners were about to enter. Because consumer credit contracts arise
across many different industries and circumstances, the Legislature broadly
defined six categories of “consumer credit contracts” that qualify for
protection. (§ 1799.90, subd. (a).)
Nor does BBBB point to any provision of the Bail Bond Regulatory Act
or its regulations to support its argument that this legal regime was intended
to operate as the exclusive source of law for the bail bond industry. That is
not surprising because California law generally does not operate this way.
Commercial enterprises are aware that they will be subject to many laws and
regulations touching on different aspects of legislative interest. The
Insurance Code governs the licensing of persons and companies engaged in
the bail bond business and the conduct of such licensees in certain areas. But
BBBB cannot plausibly suggest that compliance with its licensing obligations
somehow exempts it from compliance with other statutes such as the UCL
(Bus. & Prof. Code § 17200 et seq.), the Rosenthal Fair Debt Collection
Practices Act (Civ. Code, § 1788 et seq.), or other legal requirements.
Finally, BBBB has failed to identify any conflict between the notice
requirement of section 1799.91 and any provision of the Insurance Code. As
Caldwell correctly observes, the Insurance Code and the Civil Code are not
mutually exclusive, and compliance with one statutory regime does not in
any way inhibit its ability to comply with the other.
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ii. The Bail Premium Financing Agreement Qualifies As a
Consumer Credit Contract
BBBB next asserts that the consumer credit contract laws have no
application here because the Premium Agreement “is not a consumer credit
transaction within any plain understanding of that term.” This contention
requires us to construe the meaning of these statutory provisions and
whether they apply to the premium financing agreements at issue in this
appeal.
“The rules governing statutory construction are well settled. We begin
with the fundamental premise that the objective of statutory interpretation is
to ascertain and effectuate legislative intent. [Citations.] ‘In determining
intent, we look first to the language of the statute, giving effect to its “plain
meaning.” ’ [Citations.] . . . Where the words of the statute are clear, we may
not add to or alter them to accomplish a purpose that does not appear on the
face of the statute or from its legislative history.” (Burden v. Snowden (1992)
2 Cal.4th 556, 562.) “[I]f the statutory language permits more than one
reasonable interpretation, courts may consider various extrinsic aids,
including the purpose of the statute, the evils to be remedied, the legislative
history, public policy, and the statutory scheme encompassing the statute.
[Citation.] In the end, we ‘ “must select the construction that comports most
closely with the apparent intent of the Legislature, with a view to promoting
rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.” ’ ” (Torres v.
Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.)
Section 1799.90, subdivision (a) defines a “ ‘Consumer credit contract’ ”
as an obligation “to pay money on a deferred payment basis” where the
subject matter of the contract is “primarily for personal, family or household
purposes” and the obligation falls within any of six general categories. (See
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ante, at p. 7.) We are concerned here with the fourth type of consumer credit
obligation: “Loans or extensions of credit secured by other than real
property, or unsecured, for use primarily for personal, family or household
purposes.” (§ 1799.90, subd. (a)(4).)
We conclude the Premium Agreement qualifies as an “extension of
credit” under section 1799.90, subdivision (a)(4). Section 1799.90,
subdivision (a)(4) does not define the term “extension of credit,” but its
meaning can be readily discerned by a commonsense understanding of its
component words. Black’s Law Dictionary defines “credit” as “[t]he time that
a seller gives the buyer to make the payment that is due.” (Black’s Law
Dictionary (11th ed. 2019) at p. 463.) To “extend” means “to make available.”
(Merriam-Webster’s Collegiate Dictionary (11th ed. 2009) p. 442.) Under a
plain reading of section 1799.90, subdivision (a)(4), a bail premium financing
agreement is an “extension of credit” because it is an agreement by which the
bail agent makes available to the consumer the ability to satisfy his or her
obligation to pay the bail bond premium amount over a series of monthly
installments.
As amici curiae the Attorney General observes, “[t]his plain language
interpretation is consistent with definitions in other statutes governing
consumer transactions.” For example, the Credit Services Act of 1984
(§ 1789.10 et seq.) defines an extension of credit as “the right to defer
payment of debt or to incur debt and defer its payment, offered or granted
primarily for personal, family, or household purposes.” (§ 1789.12, subd. (d).)
Similarly, the Truth in Lending Act (TILA; 15 U.S.C. § 1601 et seq.) was
enacted by Congress to regulate credit disclosures among “various financial
institutions and other firms engaged in the extension of consumer credit.’ ”
(Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 965, quoting
14
15 U.S.C. § 1601(a).) TILA defines “ ‘credit’ ” as “the right granted by a
creditor to a debtor to defer payment of debt or to incur debt and defer its
payment.” (15 U.S.C. § 1602(f).)3
Thus, Caldwell’s Premium Agreement with BBBB qualifies as a
consumer credit contract because Caldwell signed an agreement (1) “to pay
money on a deferred payment basis”; (2) the subject matter of the contract
was “primarily for personal, family or household purposes”; (3) the obligation
involved an “extension[] of credit” because Caldwell was allowed to satisfy
her bail premium obligation over a series of monthly payments; and (4)
Caldwell’s obligation was “secured by other than real property, or unsecured.”
(§ 1799.90, subd. (a)(4).)
BBBB does not dispute that the contracts signed by Caldwell and her
declarants were primarily for personal, family, or household purposes.
Rather, BBBB contends that Caldwell was not a party to a “consumer credit
3 BBBB directs our attention to an Eleventh Circuit decision which held
that TILA did not apply to the execution of a contingent promissory note and
mortgage put up as collateral in a bail bond indemnity agreement. (Buckman
v. American Bankers Ins. Co. of Florida (11th Cir. 1997) 115 F.3d 892.) The
court concluded that the promissory note was not an “ ‘extension of credit’ ”
under the federal statute because it was a contingent obligation. Under the
promissory note, no debt was owed unless and until the bond was forfeited
and thus “[t]o the extent Plaintiff became liable for a ‘debt,’ it was not as a
result of [the surety’s] extension of a line of credit to Plaintiff, but arose by
court order when the bond was breached.” (Id. at p. 894.) Buckman is
distinguishable in several respects. The case does not concern a bail
premium financing agreement as the plaintiff had paid the entire premium
up front. (Id. at p. 893.) Caldwell’s allegations here involve an agreement to
pay the bail premium over a series of installments, and the obligation was not
contingent but was fully payable and nonrefundable the moment the arrestee
was released from detention. (See Sharp v. Memphis Bonding Co., Inc.
(W.D.Tenn. Mar. 21, 2019, No. 18-2143) 2019 WL 1301993, at p. *11
[distinguishing Buckman and concluding agreement to defer payment of a
bail bond premium constitutes an “extension of credit” under TILA].)
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contract” but was instead “the indemnifier of the surety issuing the bond.”
BBBB reasons that in bail bond transactions, “the bail agent pays no money
to the court that imposed the bond on behalf of the person requesting the
bond.” Instead, “the agent collects a premium from the person requesting a
bond, and in return secures the promise of a surety company . . . to pay the
bail amount in the future” if the arrestee fails to appear and the court
declares the bond to be forfeited. BBBB adds that the terms used in the
section 1799.91 notice provision are “incompatible with bail-bond
agreements” because the notice refers to a “ ‘cosigner’ who is being asked to
‘guarantee’ a debt ‘[i]f the borrower doesn’t pay.’ ” Such terms have no
application here, BBB contends, because “a bail-bond agreement consists of a
promise to pay by the bail agent acting as a surety. In exchange, the arrestee
has no obligation to pay the bail or debt, but only to appear in court.”
BBBB’s arguments confuse the contract at issue in this appeal. While
an arrestee or indemnitor may contract with the surety to guarantee the full
amount of the bail if the defendant fails to appear in court as ordered (see
People v. The North River Ins. Co., supra, 48 Cal.App.5th at p. 235), the
contract we are concerned with here is a different one. A bail premium
financing agreement extends credit to cosigners who are unable to afford the
bail bond premium by accepting an initial downpayment and allowing them
to pay the balance of the premium in monthly installments. This financing
agreement is ancillary to the bail bond transaction. Defendants who have
financial means will have no occasion to execute such an agreement when
obtaining a bail bond because they can pay the full premium outright. And,
unlike the indemnity agreement between a defendant and the surety
16
company (here North River), the premium financing agreement is between
the arrestee (or cosigner) and the bail bond agent, here BBBB.4
In short, the premium financing agreement does not “indemnify the
surety issuing the bond,” as BBBB contends. Rather, the subject Premium
Agreements allowed the cosigner to satisfy his or her obligation to pay the
bail bond premium over a series of monthly payments. Thus, the transaction
comports with the ordinary understanding of a consumer credit contract
involving an “extension[] of credit” under section 1799.90, subdivision (a)(4).
In its reply brief, BBBB argues that the Premium Agreement cannot be
an “extension of credit” because “a construction of the statute that includes
installment contracts within ‘loans’ or ‘extensions of credit’ would necessarily
render the California Legislature’s decision to specifically and separately
include the term ‘retail installment contracts’ in [section 1799.90,]
subdivision (a)(1) completely superfluous.” We disagree.
BBBB fails to explain how it would construe the phrase “extensions of
credit” under section 1799.90, subdivision (a)(4). In any event, while an
extension of credit overlaps to some degree with certain retail installment
contracts, the two subdivisions also address distinct consumer credit
situations. For example, an extension of credit secured by real property
would be excluded from section 1799.90, subdivision (a)(4), but a retail
installment contract may be secured by real property. (See, e.g., § 1803.2,
subd. (b)(3) [detailing requirements for “[a]ny contract for goods or services
that provides for a security interest in real property”].) In addition, a
financing agreement that involved four or fewer installment payments would
4 The “Indemnitor/Guarantor Checklist” signed by Caldwell expressly
states that the “insurance company [(North River)] is not a party to any
premium financing. Any financial agreement is strictly between the bail
agent/agency [(BBBB)] and indemnitor.” (Italics added.)
17
not qualify as a retail installment contract under subdivision (a)(1) of
section 1799.90 (see § 1802.6 [defining retail installment contracts]), but may
qualify as an extension of credit under subdivision (a)(4). Even if some
overlap between terms is unavoidable, “the presence of some duplication in a
multiprong statutory test does not automatically render it meaningless.”
(People v. Davis (1997) 15 Cal.4th 1096, 1102.) While “ ‘[a] construction
making some words surplusage is to be avoided’ ” (Grupe Development Co. v.
Superior Court (1993) 4 Cal.4th 911, 921), there is no “rule of statutory
construction requiring courts ‘to assume that the Legislature has used the
most economical means of expression in drafting a statute . . . .’ ” (River
Garden Retirement Home v. Franchise Tax Bd. (2010) 186 Cal.App.4th 922,
942.)5
iii. Caldwell Is a Cosigner Entitled to Statutory Notice
Because we conclude that the bail premium financing agreement at
issue here is a consumer credit contract within the meaning of
section 1799.90, such contract is subject to the consumer protections provided
by statute, including the notice provision to cosigners of a consumer credit
contract. Unless the signers are married to each other, “each creditor who
obtains the signature of more than one person on a consumer credit contract
shall deliver to each person who does not in fact receive any of the money,
property, or services which are the subject matter of the consumer credit
contract” the statutorily prescribed written notice. (§1799.91, subd. (a).)
Such notice must be given to the cosigner “prior to that person’s becoming
obligated on the consumer credit contract.” (Ibid.)
Because we conclude that the Premium Agreement qualifies as a
5
consumer credit contract under section 1799.90, subdivision (a)(4) as an
extension of credit, we need not resolve the question whether such agreement
also qualifies as a retail installment contract under subdivision (a)(1).
18
In determining that Caldwell was likely to succeed on the merits of her
claims, the trial court found that Caldwell, her declarants, and the other
cosigners of the 150 enforcement actions filed by BBBB, had not received
section 1799.91 notices prior to signing BBBB’s Premium Agreements.
Therefore, BBBB was prohibited under section 1799.95 from filing actions or
attempting to collect on these contracts with the cosigners.
BBBB raises two specific challenges to the applicability of
section 1799.91. First, it argues that the statute does not apply to contracts
like Caldwell’s that do not contain “the signature of more than one person.”
BBBB notes that the Premium Agreement bears only Caldwell’s signature,
and the record shows that BBBB did not obtain the signature of more than
one person on other bail bond premium financing agreements either. As the
trial court pointed out, BBBB does not “explicitly dispute that the arrestee
signs similar, if not identical documents, a fact that is confirmed by the
attachments of numerous actions to enforce the agreements.”6 BBBB
essentially argues that because its practice is to have a cosigner and the
arrestee each sign separate bail agreements that are essentially identical,
section 1799.91 should not be enforced because these documents do not bear
“the signature of more than one person.”
6 The record indeed confirms that in the collection actions filed by
BBBB against other cosigners, the various bail bond agreements, including
Premium Agreements, were signed by the arrestees and cosigners on
separate, essentially identical contracts. BBBB’s representative also filed a
declaration below verifying that arrestees sign agreements and forms by
which they become liable to BBBB after they are released on bail. Moreover,
Caldwell stated that she was told that D.C. would separately sign her own
copies of the same contracts. Thus, to the extent BBBB challenges whether
Caldwell and D.C. each signed the same or similar bail bond agreements, we
conclude there is substantial evidence in the record to support the trial
court’s finding that Caldwell was a cosignatory to the Premium Agreement.
19
The trial court appropriately rejected this argument, asking, “Can
section 1799.91 be so easily circumvented by simply having the arrestee and
co-signer sign different although identical documents?” Relying on basic
contract principles, the court concluded that the arrestee and his or her
signer are engaged in one overall transaction, reasoning that several writings
that pertain to the same matter may be treated as a single contract. (See
Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1322 [“Where, as
here, the written instruments are all part of the same transaction, they may
be considered together even when the counterparties to each instrument are
different.”].) On appeal, BBBB makes no effort to explain why the trial
court’s reasoning was unsound. We conclude that when an arrestee and
cosigner each sign substantially similar or identical bond premium financing
agreements which bear the name of the person arrested or other indicia that
the writings are linked, the trial court may construe these written
instruments as a single contract in order to effectuate the purpose of
section 1799.91, which is to inform cosigners of the consequences of signing a
consumer credit contract.
Second, BBBB asserts that section 1799.91 does not apply to non-
arrestees like Caldwell who sign Premium Agreements because these
individuals are not “cosigners.” Instead, they have received the “services”
that are the subject of the contract by deriving a “personal benefit” from
getting their family member or friend out of jail. We are not persuaded.
Section 1799.91’s notice provision applies to an individual who “does
not in fact receive any of the money, property, or services which are the
subject matter of the consumer credit contract.” (§ 1799.91, subd. (a).) The
statute does not contain an exception for signatories who receive a “personal”
or “intangible” benefit. In the procurement of a bail bond, the “services” are
20
received by the person who is released from detention as a result of the
posting of a bail bond. BBBB’s argument would write the statutory notice
provision out of existence because any cosigner might derive a “personal” or
psychic benefit by helping to guarantee a consumer credit contract on behalf
of a friend or loved one. We do not believe the Legislature intended such a
strained and self-defeating reading of this provision.
BBBB suggests another unworkable construction of the statute when it
argues that Caldwell was not a “cosigner” because she received “the unique
service” under the Premium Agreement of “the ability to pay part of the
agreed premium over time rather than upfront.” But this feature is true of
all consumer credit contracts, which involve “obligations to pay money on a
deferred payment basis.” (§ 1799.90, subd. (a).) If the ability to repay over
time itself constituted a “service,” no one would be entitled to cosigner notice
because all signatories to credit contracts receive the benefit of making
payments over time. Accordingly, we uphold the trial court’s finding that
Caldwell and the putative class members who signed BBBB’s Premium
Agreements on behalf of other arrestees are cosigners entitled to statutory
notice under section 1799.91.
iv. BBBB’s Additional Contentions
BBBB raises several additional arguments in its briefing, some
addressing the propriety of the trial court’s issuance of the preliminary
injunction, and other arguments challenging the scope of the relief ordered.
Because we find no merit to these contentions, we group them together here
and address each argument in turn.
a. Effect of Failed Amendment to Civil Code
BBBB argues the trial court’s interpretation of section 1799.91 was
rejected by the Legislature in 2019, when it declined to adopt proposed
21
amendments that would have expanded the definition of “consumer credit
contract” in section 1799.91 (and three other consumer credit protection
statutes) to expressly apply to “ ‘bail agreements.”’ Senate Bill No. 318
(2019–2020 Reg. Sess.) (Senate Bill 318) would have clarified that consumer
credit notice provisions apply to bail bonds and immigration bonds. The bill
was reportedly not intended to change existing law, but to “restate[]” that
these consumer protections “apply to bail bond and immigration bonds,”
purportedly in response to legal arguments being advanced by immigration
bond and bail bond companies. (Sen. Com. on Judiciary, com. on Senate Bill
318, as amended Mar. 25, 2019, Executive Summary, p. 1.)
The trial court rejected BBBB’s argument, reasoning that the failure to
pass the amendment did not “establish a legislative intent to exclude such
transactions from that section’s reach.” We agree. As our Supreme Court
explains: “In most cases there are a number of possible reasons why the
Legislature might have failed to enact a proposed provision. One reason
might have been, of course, that the Legislature rejected the proposal on its
merits. But the Legislature might equally well have been motivated instead
by considerations unrelated to the merits, not the least of which is that it
might have believed the provision unnecessary because the law already so
provided . . . . Indeed, when . . . a provision is dropped from a bill during the
enactment process, the cause may not even be a legislative decision at all; it
may simply be that its proponents decided to withdraw the provision on
tactical grounds. [¶] Because these reasons apply equally to a failure to enact
a new statute and to a failure to amend an existing statute, we decline to
draw any such distinction: both cases are governed by our often stated rule
that ‘Unpassed bills, as evidences of legislative intent, have little value.’ ”
(Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 28–29.) Under these principles, we
22
decline BBBB’s invitation to draw any inference over the Legislature’s failure
to pass Senate Bill No. 318.
b. Primary Jurisdiction Doctrine
BBBB contends the trial court’s injunction runs afoul of the primary
jurisdiction doctrine, arguing that the Department has primary jurisdiction
over this matter because its bail bond regulations set forth extensive
disclosure requirements and “there is no indication that the [Department]
has ever included the section 1799.91 disclosure as an obligation in the
course of [unpaid bail bond premium transactions] or any other bail
transactions.”
Primary jurisdiction “ ‘applies where a claim is originally cognizable in
the courts, and comes into play whenever enforcement of the claim requires
the resolution of issues which, under a regulatory scheme, have been placed
within the special competence of an administrative body; in such a case the
judicial process is suspended pending referral of such issues to the
administrative body for its views.’ ” (Farmers Ins. Exchange v. Superior
Court (1992) 2 Cal.4th 377, 390 (Farmers), italics omitted; accord, Jonathan
Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 931–932.) The primary
jurisdiction doctrine advances two policies: “it enhances court decisionmaking
and efficiency by allowing courts to take advantage of administrative
expertise, and it helps assure uniform application of regulatory laws.”
(Farmers, at p. 391.) “No rigid formula exists for applying the primary
jurisdiction doctrine [citation]. Instead, resolution generally hinges on a
court’s determination of the extent to which the policies noted above are
implicated in a given case. [Citations.] This discretionary approach leaves
courts with considerable flexibility to avoid application of the doctrine in
23
appropriate situations, as required by the interests of justice.” (Id. at
pp. 391–392, fns. omitted.)
The trial court below properly rejected the doctrine of primary
jurisdiction on the ground that “the question [at issue] is one of interpretation
of applicable statutes,” which is “ ‘an inherently judicial function.’ ” It is clear
that “[t]his case involves neither disputed facts of a technical nature nor a
voluminous record of conflicting evidence.” (Southern Cal. Ch. of Associated
Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422,
454.) The pivotal issue in this appeal involves a question of statutory
interpretation, a matter with which courts have considerable experience and
which does not necessitate deferral to an administrative agency. (Ibid.)
Accordingly, the doctrine of primary jurisdiction does not apply.7
c. Exclusive Concurrent Jurisdiction
BBBB next contends that the preliminary injunction violates the
doctrine of exclusive concurrent jurisdiction, asserting that the trial court
lacked the power to enjoin the enforcement of hundreds of other actions that
BBBB claims were pending before Caldwell filed her cross-complaint. The
contention lacks merit.
The doctrine of “ ‘exclusive concurrent jurisdiction’ ” provides that when
two or more courts have subject matter jurisdiction over a dispute, the court
that first asserts jurisdiction assumes it to the exclusion of the others.
(Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000)
85 Cal.App.4th 1168, 1175; see also Levine v. Smith (2006) 145 Cal.App.4th
1131, 1135 [“Under the doctrine of priority of jurisdiction, the first superior
court to assume and exercise jurisdiction in the case acquires exclusive
7 In its amicus curiae brief, the Department agrees that “[t]here is no
basis for the Court to stay this case under the primary jurisdiction doctrine.”
24
jurisdiction until the matter is disposed of.”].) The rule is “a judicial rule of
priority or preference and is not jurisdictional in the traditional sense of the
word,” in that it “does not divest a court, which otherwise has jurisdiction of
an action, of jurisdiction.” (People ex rel. Garamendi v. American Autoplan,
Inc. (1993) 20 Cal.App.4th 760, 764–765, 769 (Garamendi).) The purpose of
this rule “is to avoid unseemly conflict between courts that might arise if they
were free to make contradictory decisions or awards at the same time or
relating to the same controversy” and “to protect litigants from the expense
and harassment of multiple litigation.” (Scott v. Industrial Acci. Com. (1956)
46 Cal.2d 76, 81–82.) Because it is a policy rule, the application of the rule in
a given case depends upon the balancing of countervailing policies. (Childs v.
Eltinge (1973) 29 Cal.App.3d 843, 854.)
Importantly, “[t]he rule of exclusive concurrent jurisdiction is not a
defense to a request for a preliminary injunction. Exclusive concurrent
jurisdiction is a judicial rule of policy which mandates that the second action
be stayed upon the filing of an appropriate pleading. Prior to the filing of
such an appropriate pleading, the trial court in the second action retains
jurisdiction to act. Opposition to a request for a preliminary injunction is not
such an appropriate pleading. A trial court may not stay or dismiss an action
in connection with a hearing on a preliminary injunction; it is without power
to grant such relief.” (Garamendi, supra, 20 Cal.App.4th at p. 774.)
As Caldwell points out, BBBB has never sought to obtain a stay in this
matter in deference to some earlier-filed case. Further, there are no active
earlier-filed cases in which a cosigner has cross-claimed on the grounds that
BBBB is legally barred from enforcing a premium financing agreement under
sections 1799.91 and 1799.95, and no prior case that involves a putative class
action asserting these claims. Thus, it appears doubtful that BBBB has
25
established grounds to dismiss or stay this action under the doctrine of
exclusive concurrent jurisdiction. However, even if BBBB had properly
invoked this rule, the trial court was without any power to grant a stay or
dismissal of the pending action in connection with a hearing on the
preliminary injunction. (Garamendi, supra, 20 Cal.App.4th at p. 774.)
BBBB also contends that the preliminary injunction improperly
“overturns” or “ ‘nullif[ies]’ ” the entry of judgement in prior collection actions,
particularly in several default judgments. We disagree. The trial court
enjoins BBBB, on an interim basis, from “seeking to enforce, execute, or
collect on any judgments against such cosigners.” In both language and
effect, the order does not disturb any prior judgment or reopen any prior case.
As Caldwell notes, the preliminary injunction ensures that, while this case
proceeds to an adjudication of the putative class members’ claims, BBBB “is
prohibited from taking any new actions that would expose defaulting
cosigners to particularly severe forms of irreparable harm—wage
garnishments, credit injury, the imposition of judgment liens, or the seizure
of securities.”8
d. Due Process
BBBB asserts that the superior court’s “ ‘retroactive application’ ” of an
“entirely new” interpretation of section 1799.91 violates its due process
rights. BBBB is mistaken. “In general, judicial decisions apply retroactively.
[Citations.] This rule applies to decisions interpreting statutes, for ‘ “[a]
judicial construction of a statute is an authoritative statement of what the
statute meant before as well as after the decision of the case giving rise to
8 BBBB also advances an overbreadth argument that is limited to a
single sentence. Because BBBB does not support its claim with reasoned
analysis, we deem the issue forfeited. (See Sviridov v. City of San Diego
(2017) 14 Cal.App.5th 514, 521.)
26
that construction.” ’ ” (Ferra v. Loews Hollywood Hotel, LLC (2021)
11 Cal.5th 858, 878; see also Woosley v. State of California (1992) 3 Cal.4th
758, 794 [“ ‘Whenever a decision undertakes to vindicate the original
meaning of an enactment . . . retroactive application is essential to
accomplish that aim.’ ”].)
BBBB’s reliance on Moss v. Superior Court (1998) 17 Cal.4th 396(Moss) is misplaced. In Moss, the Supreme Court concluded that it could not
retroactively apply “criminal contempt sanctions” to conduct that was
authorized by settled case law in effect at the time the acts were committed.
(Id. at p. 429.) Doing so would have posed an evident due process problem
because the parties had legitimately relied on existing law. (Ibid.) Here,
BBBB cannot claim reasonable reliance on settled law. No prior precedent
authorized the conduct addressed by the preliminary injunction. Moreover,
the purpose of the preliminary injunction is not to criminally sanction BBBB,
but to protect the statutory rights of cosigners.
Relying on Claxton v. Waters (2004) 34 Cal.4th 367 and Williams &
Fickett v. County of Fresno (2017) 2 Cal.5th 1258, BBBB argues that “[g]iven
the long-standing rules by which bail agents have conducted themselves for
decades, the imposition now of a sweeping new application of section 1799.91
to their transactions should be applied, if at all, prospectively only.” Both
cases, like Moss, involved settled prior legal precedent upon which the
defendants had reasonably relied. (See Claxton, at pp. 378–379; Williams, at
p. 1282.) Again, BBBB does not cite any precedent that would have caused it
to believe it was exempt from complying with cosigner consumer notice
protections.
Nor do we perceive any unfairness in enforcing the consumer protection
laws at this juncture. To apply the injunction prospectively, as BBBB urges,
27
would exclude scores of unsuspecting cosigners who never received statutory
warning of the risks of cosigning a bail bond premium agreement and became
liable for the full amount of the premium and subject to enforcement actions,
garnishment of wages, damage to their credit, and other serious financial and
legal consequences. Caldwell and other putative class members contend they
would not have agreed to cosign bail bond premium financing agreements
had they be given proper warning of the consequences of their decision. As
discussed above, the preliminary injunction merely ensures that no injury
will befall the putative class members as the case reaches the merits of their
claims. We see nothing unfair about the order, and certainly nothing
violative of BBBB’s due process rights.
e. Violation of the UCL
BBBB contends that even if we conclude that the Premium Agreement
is subject to section 1799.91, Caldwell is unlikely to prevail on the merits
because BBBB has not violated the UCL. BBBB asserts that it did not
violate the unlawful prong of the UCL because its conduct fell within the
“safe harbor” provided by the Department’s regulations. The trial court
below disagreed, reasoning that “only the Legislature can create a ‘safe
harbor’ ” and that courts cannot “rely on insurance regulations as support for
a safe harbor finding.” BBBB contests this finding.9
9 Because it found that BBBB’s conduct violated the unlawful prong of
the UCL, the trial court declined to address whether BBBB’s conduct also
violated the unfairness prong. BBBB asserts that the trial court abused its
discretion by failing to reach this question. Not so. (See, e.g., Troyk v.
Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1337–1338, fn. 23
[“Because we conclude Troyk met his burden to show Farmers committed an
unlawful business practice under the UCL, we need not, and do not, address
the two alternative bases for unfair competition under the UCL (i.e., whether
Farmers also engaged in fraudulent or unfair business practices).”].)
28
The Supreme Court has explained the “safe harbor” doctrine in this
way: “Although the unfair competition law’s scope is sweeping, it is not
unlimited. . . . Specific legislation may limit the judiciary’s power to declare
conduct unfair. If the Legislature has permitted certain conduct or
considered a situation and concluded no action should lie, courts may not
override that determination. When specific legislation provides a ‘safe
harbor,’ plaintiffs may not use the general unfair competition law to assault
that harbor.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163, 182.) Under the safe harbor doctrine,
“[t]o forestall an action under the unfair competition law, another provision
must actually ‘bar’ the action or clearly permit the conduct.” (Id. at p. 183.)
While an express statutory provision permitting specific conduct would be
sufficient to create a safe harbor, “the Legislature’s mere failure to prohibit
an activity does not prevent a court from finding it unfair.” (Id. at p. 184.)
Subsequent cases applying Cel-Tech have explained that to “qualify for the
‘safe harbor’ rule, the defendant must show that a statute ‘explicitly
prohibit[s] liability for the defendant’s acts or omissions [citation] or
‘expressly precludes an action based on the conduct.’ ” (Klein v. Chevron
U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1379 (Klein).)
Even if the trial court were incorrect in concluding that administrative
regulations cannot create a safe harbor under the UCL, an issue we need not
decide, BBBB does not cite any Department regulation that “expressly” or
“explicitly” bars the relief sought by Caldwell under the consumer credit
protection statutes or “clearly permits” BBBB’s conduct here. Instead, BBBB
repeats its general point that the Department has adopted regulations
governing all aspects of bail transactions, and reiterates its view that it is in
compliance with its obligations under the Insurance Code.
29
Such showing is insufficient to support a safe harbor claim as a matter
of law. If a statute does not “explicitly prohibit liability” for a defendant’s
specific acts or omissions, the court may not create an “implied safe harbor.”
(Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924, 940 & fn. 5; see
also Klein, supra, 202 Cal.App.4th at p. 1379 [declining to infer safe harbor
where Legislature regulated similar conduct but did not expressly permit
challenged conduct].)
C. Balance of Hardships
As previously discussed, to demonstrate entitlement to preliminary
injunctive relief, a plaintiff must show both a probability that he or she will
prevail at trial, and that the “ ‘ “interim harm that the plaintiff is likely to
sustain if the injunction were denied [(favored the plaintiff)] as compared to
the harm the defendant is likely to suffer if the preliminary injunction were
issued.” ’ ” ” (Gallo, supra, 14 Cal.4th at p. 1109.)
The trial court weighed the relative harms to both parties and
concluded that the balance of hardships tipped decidedly towards Caldwell
because she had demonstrated that she and others like her had been
victimized by BBBB’s failure to provide section 1799.91 notice. While BBBB
asserted it might lose bail premiums worth millions of dollars if
section 1799.91 were enforced against it, the court found that BBBB “ma[de]
no showing it cannot provide the notice and comply with the statute” and,
“ ‘[i]n any event, the injunction does not prevent [BBBB] from conducting
business in California. Rather, it merely conditions their continued activity
on compliance with California’s consumer protection laws.’ ” We conclude the
trial court did not abuse its discretion in finding that the balance of
hardships favors Caldwell.
30
On appeal, BBBB seeks to minimize Caldwell’s harm by suggesting
that the only wrong she suffered was the failure to receive notice “in exactly
the language proscribed by section 1799.91.” However, the actual harm
presented stems from the fact that she and other putative class members are
being held to contracts they would not otherwise have entered had they been
provided with the required notice. As the trial court found, that harm is
significant.
On the other side of the equation, the trial court concluded that
compliance with the notice requirement is not burdensome. BBBB disagrees,
asserting the court “did not come to grips with the enormous harm that
would inure to BBBB from being deprived of its contractual rights.” BBBB
argues that it cannot go back and provide section 1799.91 notices to fully
executed transactions, and protests that the injunction bars it from trying to
collect on “valid” judgments already obtained. BBBB does not explain why it
cannot enforce Premium Agreements against the arrestees themselves, or
against persons (such as spouses) who were not entitled to cosigner notice.
Further, as a matter of law, the cost of ceasing illegal conduct is not a
cognizable injury. (See People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th
866, 882 [“Defendants, of course, cannot claim harm from any restrictions in
the activities that constitute the public nuisance.”].) We find no abuse of the
trial court’s discretion on this record.
BBBB finally contends that the trial court incorrectly excused Caldwell
of the obligation to post an appeal bond. BBBB claims that Caldwell was
required to show that each or all members of the class are unable to afford a
bond to protect BBBB from the harm it will experience from having to comply
with the preliminary injunction in the event it ultimately prevails on the
merits. BBBB claimed below that a bond of at least $3 million was required.
31
Caldwell, citing to Code of Civil Procedure section 995.240, argued that the
bond should be waived due to her limited financial resources.
In entering a preliminary injunction, the trial court ordinarily must
require the posting of an appropriate bond. (Code Civ. Proc., § 529; ABBA
Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10.) The court has the
discretion, however, to waive the undertaking if the plaintiff is indigent.
(Code Civ. Proc., § 995.240.) “Judicial authority to facilitate meaningful
access to indigent litigants extends . . . to excusing statutorily imposed
expenses that are intended to protect third parties (e.g., injunction or damage
bonds) and to devising alternative procedures (e.g., additional methods of
service or meaningful access) so that indigent litigants are not, as a practical
matter, denied their day in court.” (Jameson v. Desta (2018) 5 Cal.5th 594,
605–606.)
The trial court did not abuse its discretion in excusing Caldwell from
any bond requirement. The court noted that BBBB cited no authority in
support of its claim that the court was required to take into account the
financial resources of putative class members. On appeal, BBBB does not
provide us with any such authority. We find no error.
III. DISPOSITION
The order is affirmed.
32
SANCHEZ, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A162453
BBBB Bonding Corporation v. Caldwell
33
Trial Court: Alameda County
Trial Judge: Hon. Brad Seligman
Counsel:
Law Offices of Jeffrey M. Cohon, APC, Jeffrey M. Cohon; Weintraub Tobin
Law Corporation, Brendan J. Begley, Charles L. Post, James Kachmar and
Audrey A. Millemann for Plaintiff, Cross-defendant and Appellant.
Keker, Van Nest & Peters LLP, Laurie Carr Mims, Jay Rapaport, Niall
Mackay Roberts, and Donna Zamora-Stevens; Lawyers’ Committee for Civil
Rights of the San Francisco Bay Area, Elisa Della-Piana, Zal K. Shroff and
Rio Scharf for Defendant, Cross-complainant and Respondent.
Mitchell Silberberg & Knupp LLP, Mark C. Humphrey, Elaine K. Kim and
Alexandra Anfuso for Public Counsel, Community Legal Services in East Palo
Alto, National Consumer Law Center, The Debt Collective, The Public Law
Center, Watsonville Law Center, and East Bay Community Law Center as
Amicus Curiae on behalf of Defendant, Cross-complainant and Respondent.
Rob Bonta, Attorney General, Nicklas A. Akers, Assistant Attorney General,
Michele Van Gelderen, Michael Gowe, and Alicia K. Hancock, Deputy
Attorneys General for the Attorney General of the State of California and the
California Department of Insurance as Amicus Curiae on behalf of
Defendant, Cross-complainant and Respondent.
Willkie, Farr & Gallagher LLP, Eduardo E. Santacana and Joshua D.
Anderson; Chesa Boudin, District Attorney (San Francisco) and Alex Feigen
Fasteau, Deputy District Attorney for Prosecutors Alliance of California and
District Attorney of the City and County of San Francisco as Amicus Curiae
on behalf of Defendant, Cross-complainant and Respondent.
34