Legal Service Bureau etc. v. Orange County Bail Bonds CA4/3 ( 2021 )

Filed 4/5/21 Legal Service Bureau etc. v. Orange County Bail Bonds CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
LEGAL SERVICE BUREAU, INC. dba
GLOBAL FUGITIVE RECOVERY,
G057149
Plaintiff and Respondent,
(Super. Ct. Nos. 30-2015-00816859
v. 30-2017-00914190)
ORANGE COUNTY BAIL BONDS, OPINION
INC.,
Defendant, Cross-complainant and
Appellant;
v.
PARWIN SADDOZAI, et al.,
Cross-defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Sheila
Fell, Judge. Affirmed as modified.
Magarian & Dimercurio, Mark D. Magarian, and Krista L. Dimercurio for
Defendant, Cross-complainant and Appellant.
Rutan & Tucker and Robert O. Owen for Plaintiff and Respondent.
No appearance for Cross-defendants and Respondents.
* * *
Defendant Orange County Bail Bonds, Inc. (OC Bail Bonds) contracted
with plaintiff Legal Service Bureau, Inc., doing business as Global Fugitive Recovery
(Global Fugitive Recovery), to secure the return of a fugitive who had skipped bail.
Under the contract, Global Fugitive Recovery was to be paid $300,000 if it contributed,
even in part, to the fugitive’s return. Global Fugitive Recovery thoroughly investigated
the matter and determined the fugitive had fled to the Philippines. Global Fugitive
Recovery then secured the involvement of the United States Marshal Service (U.S.
Marshal), who ultimately captured and returned the fugitive in time to exonerate the
bond, saving OC Bail Bonds $1 million. OC Bail Bonds, however, refused to pay the
bounty. After a bench trial, the court determined OC Bail Bonds had breached the
contract and awarded Global Fugitive Recovery $327,750 against OC Bail Bonds. OC
Bail bonds also cross-complained against Parwin Saddozai (the fugitive’s mother) and
Imron Saddozai (the fugitive’s brother). The court awarded OC Bail Bonds $326,000
against Parwin Saddozai and Imron Saddozai, jointly and severally. OC Bail Bonds
appealed.
This appeal presents a substantial evidence challenge. Under longstanding
rules of appellate procedure, an appellant is obligated to set forth all the evidence
supporting the judgment—especially the unfavorable evidence. Here, OC Bail Bonds
summarized the testimony of the principal of Global Fugitive Recovery—who described
the extensive investigation leading to the discovery of the fugitive’s location, as well as
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the efforts Global Fugitive Recovery made to secure the involvement of the U.S.
Marshal—panning it as self-serving and uncorroborated by written records. What OC
Bail Bonds never mentioned, however, was that, on three different occasions, the
principal of OC Bail Bonds acknowledged—in writing—that Global Fugitive Recovery
significantly contributed to the fugitive’s return. In other words, OC Bail Bonds’
principal had directly corroborated the “self-serving” and uncorroborated testimony. We
learned about that for the first time in the respondent’s brief. As a result, OC Bail Bonds
has waived its argument on appeal.
OC Bail Bonds also contends that, in an award against the fugitive’s mother
and brother, the indemnitors on the bail bond, the court failed to award certain costs
under the contract. We agree in part and will modify the judgment to include some of
those costs. As modified, we will affirm the judgment.
FACTS
In 2014, Shikeb Saddozai was accused of forcible sex acts with a minor
(Pen. Code, § 289, subd. (A)(1)(c)), kidnapping (Pen. Code, § 207, subd. (A)), false
imprisonment (Pen. Code, § 236), and sexual battery (Pen. Code, § 243.4, subd. (E)(1)).
To secure his release pending trial, cross-defendants Parwin Saddozai and Imron
Saddozai (Shikeb’s mother and brother) entered into a surety bail bond agreement (Bail
Bond Agreement) with OC Bail Bonds to furnish a $1 million bond. The bond was
secured by a deed of trust on Parwin’s home.1
1 We refer to the Saddozais by their first names to avoid confusion.
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Prior to furnishing the bond, OC Bail Bonds retained Global Fugitive
Recovery to interview Shikeb and perform a flight risk assessment, as well as to obtain
his signature. Daniel Escamilla, the president and chief fugitive recovery agent for
Global Fugitive Recovery, determined that Shikeb was, indeed, a flight risk.
Nonetheless, OC Bail Bonds furnished the bond on August 14, 2014.
Almost immediately, Shikeb went into hiding. By missing a court hearing
on August 26, 2014, he officially skipped bail. OC Bail Bonds then entered into a second
agreement with Global Fugitive Recovery, which we refer to as the Recovery Contract, to
capture the fugitive. Under the Recovery Contract: “This contract will be deemed
successfully completed and [OC Bail Bonds’] Payment Obligations will become due if
there is reinstatement of the bail bond(s) or exoneration of bail bond(s) provided that such
reinstatement or exoneration is attributable in full or part to the efforts undertaken by
[Global Fugitive Recovery].” (Italics added.) The relevant payment obligation was as
follows: “Upon complete performance of this contract and if Defendant is apprehended
from a location outside the continental United States . . . , and within the initial 180 day
period, [OC Bail Bonds] agrees to pay [Global Fugitive Recovery] a fee of 30% of the
total amount of the bail bond(s) less credit for any initial advance paid by [OC Bail
Bonds].” The total amount of the bail bond was $1 million.
Global Fugitive Recovery began the process of locating Shikeb by traveling
to Daly City, where Shikeb lived, and surveilling his residence and his girlfriend for
several days, around the clock. It also conducted round-the-clock surveillance of
Shikeb’s brother, Imron, in Irvine.
Early on in the recovery operation, in September 2014, Escamilla
persuaded the U.S. Marshal Service to involve itself in the case. Escamilla described the
process of convincing the U.S. Marshal as follows: “[O]n some cases, we package them
to try to convince the U.S. Marshal to adopt them. The U.S. Marshal has very strict
guidelines set forth in a directive which only allows them to get involved in cases
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involving violent career criminals, rape, armed robbery, kidnapping, things like that.
Usually they only handle career criminals. [¶] But the way that I was able to package
this case . . . to convince them to adopt it was that I explained to them that there had been
several failed prosecutions of a similar nature and that we were dealing with a career
criminal even though he only had . . . one conviction. And I think that that was the
convincing point that . . . got the U.S. Marshals to adopt this case and to collaborate with
us on it to assist us in the fugitive recovery operations.” “[T]hey wouldn’t have touched
it had I not . . . packaged it in a manner that convinced them that it fit within their
directives because it’s not a case that on its [f]ace appears to fit into the directives that
they have.”
Global Fugitive Recovery, in conjunction with the U.S. Marshal, raided the
home of Shikeb’s girlfriend, who was from the Philippines. Afterward, Escamilla
interviewed the girlfriend and learned that her family was in Cebu, Philippines. From
this conversation, Escamilla formed the opinion that Shikeb was, in fact, hiding in Cebu.
Although the girlfriend did not say so directly, Escamilla inferred it from her body
language and the way she was speaking. After the interview, Escamilla contacted a U.S.
Marshal who had been involved in the raid of the girlfriend’s house, conveying his
opinion that “there was a 95 percent chance that [Shikeb] was hiding in Cebu.”
Sometime later Escamilla performed a consensual search of Imron and
Parwin’s home (who lived together). During the course of that search, Escamilla
photographed certain credit card statements showing that Parwin had rented a satellite
phone. The U.S. Marshal used that information to further confirm that Shikeb was in the
Philippines. Based on the satellite phone, and Escamilla’s inferences from Parwin’s
mannerisms and statements, Escamilla formed the opinion that Parwin was helping to
conceal Shikeb.
Once the search in the Philippines began, Escamilla reached out to a contact
in the Philippines who was a general in the military. He did this to secure additional local
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resources and to try ensuring Shikeb’s safety. His safety was a concern due to a rash of
extra-judicial killings of alleged criminals in the Philippines. Escamilla also created and
circulated a wanted poster in the Philippines that ultimately made it into a popular local
newspaper.
Shikeb was arrested on January 29, 2015, in Dehli, Philippines, 156 days
after the recovery mission had begun, and delivered to the custody of the San Bernardino
County Sheriff’s Department on February 6, 2015. The recovery included contributions
from at least 15 different individuals working at the behest of Global Fugitive Recovery
and spanned thousands of man hours. Because Shikeb was returned to custody within
180 days after the bond was forfeited, the bond was ultimately exonerated, saving OC
Bail Bonds from having to pay the full $1 million.
Afterward, OC Bail Bonds attempted to collect various charges from
Parwin, including Global Fugitive Recovery’s $300,000 bounty. On May 26, 2015,
Robert Miller, the president and co-owner of OC Bail Bonds, wrote a letter to Parwin
(Shikeb’s mother) informing her she would have been liable for the entire $1 million.
“However, Global Fugitive Recovery was able, through extensive contacts, perseverance,
and efforts[,] to locate Mr. Saddozai in Indonesia and expedite his arrest and extradition
to the San Mateo Jail.”
In response, Parwin field a complaint with the California Department of
Insurance. Miller replied with a letter to the insurance compliance officer justifying the
charges. In the letter, Miller wrote, “Mr. Escamilla and his team, and associates in the
Philippines, embarked on a 156 day fugitive recovery operation which included close
collaboration with the U.S. Marshal and investigations in Daly City, San Francisco, Los
Angeles, Irvine, Costa Mesa and in the Philippines the cities of Manila, Angeles City and
Cebu. Thousands of man-hours were expended in this operation by Mr. Escamilla and
his associates in connection with the fugitive recovery operation in this matter.”
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Although at trial, Miller would claim he had no personal knowledge of that information,
he agreed that he “strongly believed” it was true and had no reason to doubt Escamilla.
On October 7, 2015, Miller wrote an e-mail to HCC Surety Group (it is
unclear what role they played in the process) describing the contribution Global Fugitive
Recovery made to recapturing Shikeb: “It was [Global Fugitive Recovery] who
identified the defendant’s location In Cebu, Philippines and passed that information on to
the investigating officers in San Mateo and further informing the US Marshall [sic]
Service as to his whereabouts (including the defendant’s address). It was through [Global
Fugitive Recovery’s] Cebu connections, information and persistence that the US
Marshalls [sic] in the Philippines finally made the arrest. The entire story reads like a
crime novel including; a Typhoon, the Pope’s visit to Cebu and other obstacles.”
The consolidated matters in this appeal were initiated by Parwin (Shikeb’s
mother) in October 2015, who filed a complaint for an injunction and declaratory relief
against, inter alia, OC Bail Bonds. The complaint sought an injunction against
foreclosure on Parwin’s home and a declaration that she did not owe the $300,000 charge
attributable to Global Fugitive Recovery under her contract with OC Bail Bonds.
In a separate complaint in April 2017, Global Fugitive Recovery filed suit
against OC Bail Bonds for breach of contract and common counts, seeking its bounty of
$300,000 (minus certain expenses OC Bail Bonds had paid) under the Recovery Contract.
OC Bail Bonds then cross-complained in the same action against Parwin and Imron,
seeking indemnity under the Bail Bond Agreement. The court subsequently consolidated
the three complaints.
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A bench trial was held in April 2018, after which the court entered
judgment in favor of Global Fugitive Recovery and against OC Bail Bonds, finding, “As
to the claims of [Global Fugitive Recovery], the Court finds that [Global Fugitive
Recovery] had significant involvement in the capture of the fugitive, Shikeb
Saddozai . . . .” The court further found OC Bail Bonds was liable to Global Fugitive
Recovery for penalties under the contract in the amount of $42,750, plus interest. The
court ultimately entered judgment in Global Fugitive Recovery’s favor in the amount of
$327,750. The court found in favor of OC Bail Bonds against Parwin and Imron,
concluding that “the contract [Parwin] signed specifically obligated her to pay for the
expenses involved in the recovery of her son who had jumped bail,” including the
$300,000 charge to Global Fugitive Recovery. The court found Imron, “as Indemnitor, is
jointly obligated as such to [OC Bail Bonds].” It entered judgment against Parwin and
Imron and in favor of OC Bail Bonds in the amount of $326,000. OC Bail Bonds timely
appealed from the judgment.
DISCUSSION
OC Bail Bonds raises two contentions on appeal: that substantial evidence
did not support a finding that it breached the Recovery Agreement, and that substantial
evidence does not support the court’s award in favor of OC Bail Bonds and against
Parwin and Imron.
I.
“‘When a finding of fact is attacked on the ground that there is not any
substantial evidence to sustain it, the power of an appellate court begins and ends with the
determination as to whether there is any substantial evidence contradicted or
uncontradicted which will support the finding of fact.’” (Foreman & Clark Corp. v.
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Fallon (1971) 3 Cal.3d 875, 881.) “‘It is well established that a reviewing court starts
with the presumption that the record contains evidence to sustain every finding of fact.’
[Citations.] [OC Bail Bonds’] contention herein ‘requires [OC Bail Bonds] to
demonstrate that there is no substantial evidence to support the challenged findings.’ . . .
[Citations.] A recitation of only defendants’ evidence is not the ‘demonstration’
contemplated under the above rule. [Citation.] Accordingly, if, as [OC Bail Bonds] here
contend[s], ‘some particular issue of fact is not sustained, they are required to set forth in
their brief all the material evidence on the point and not merely their own evidence.
Unless this is done the error is deemed to be waived.’” (Ibid.) “The reason for this is
that ‘if the appellants fail to present us with all the relevant evidence, then the
appellants cannot carry their burden of showing the evidence was insufficient to support
the agency’s decision because support for that decision may lie in the evidence the
appellants ignore.’” (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014,
1072.)
In light of OC Bail Bonds’ approach to this case, we wish to expound upon
the rule requiring a complete statement of facts. In requiring an appellant to set forth all
evidence supporting the judgment, we realize the appellant does not think the judgment is
supported at all. The burden, therefore, is not to set forth all evidence the appellant
thinks supports the judgment. That would be pointless. Instead, the burden is to set forth
all evidence that arguably supports the judgment. In other words, the appellant must put
itself in the respondent’s shoes, and describe all the evidence the respondent would likely
assert. This is important because the purpose of a brief is to aid the court in deciding a
case. By arguing a substantial evidence case without acknowledging all the evidence, the
appellant is essentially arguing a different case. That is no help to us at all.
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As to OC Bail Bonds’ first contention that substantial evidence did not
support the finding that it breached the Recovery Agreement, it has failed to fulfill its
obligation to set forth all material evidence supporting the judgment and thus has waived
the substantial evidence claim. Some of the most powerful evidence supporting the
judgment were the three letters written by Miller on behalf of OC Bail Bonds, asserting
that Global Fugitive Recovery had, in fact, made significant contributions toward
recovering Shekib. The fact that Miller had made such admissions in writing was not
mentioned at all in OC Bail Bonds’ opening brief. What it did instead, in an apparent
attempt to avoid mentioning the evidence but still somehow avoid a waiver, was to
mention the exhibit numbers, generically describe what it was, and editorialize about why
the exhibit does not matter.
Thus, for example, OC Bail Bonds discussed exhibit No. 112 as follows:
“Exhibit 112 [citation] is an email that Mr. Miller sent to ACIC relating to the [Global
Fugitive Recovery] Agreement and [Global Fugitive Recovery]’s contingency fee. It in
no way establishes what role [Global Fugitive Recovery] did or did not play in the
recapture of Shikeb. Again, Mr. Miller (the author of the email) had no personal
knowledge of [Global Fugitive Recovery]’s role.” Now, here is what exhibit 112 actually
says: “It was [Global Fugitive Recovery] who identified the defendant’s location In
Cebu, Philippines and passed that information on to the investigating officers in San
Mateo and further informing the US Marshall [sic] Service as to his whereabouts
(including the defendant’s address). It was through [Global Fugitive Recovery]’s Cebu
connections, information and persistence that the US Marshalls [sic] in the Philippines
finally made the arrest. The entire story reads like a crime novel including; a Typhoon,
the Pope’s visit to Cebu and other obstacles.” OC Bail Bonds took a nearly identical
dismissive and uninformative approach to exhibits Nos. 109 and 110, which contain
similar admissions.
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OC Bail Bonds’ approach did not fulfill its duty to set forth the material
evidence. Not only did OC Bail Bonds fail to apprise us of the content of exhibit No.
112, it actively misled us as to what the exhibit contained when it said it “in no way
establishes what role [Global Fugitive Recovery] did or did not play in the recapture of
Shikeb.” Perhaps there is an argument for why this admission should not be credited, but
before we ever get to that argument, we must be told what the evidence is. Having failed
to do that, OC Bail Bonds has waived the issue on appeal.
II.
As to OC Bail Bonds’ second contention, we agree that the evidence
supports an additional award of $271.45 in expenses against Parwin and Imron. In the
Bail Bond Agreement Parwin and Imron agreed, “To reimburse [OC Bail Bonds] and
Surety for actual expenses incurred and caused by a breach by the Principal of any of the
terms for which the application and Bail Bond were written . . . including all expenses or
liabilities incurred as a result of searching for, recapturing or returning Principal to
custody [and] including legal fees incurred by [OC Bail Bonds] or Surety in making
application to a court for an order to vacate or to set aside the order of forfeiture or
Summary Judgment entered thereon.”
In the judgment, the court awarded OC Bail Bonds $326,000, which
includes $300,000 for the cost of paying Global Fugitive Recovery. It is not entirely
clear how the court arrived at the additional amount of $26,000. The parties stipulated
that Parwin and Imron had failed to pay $25,500 in premiums on the bond as well as a
$130 exoneration fee paid to the court in San Mateo. That brings us to $25,630. In
addition, OC Bail Bonds presented evidence that they incurred attorney fees to exonerate
the bond in the amount of $641.45. That brings us to $26,271.45.
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We reject the remainder of the costs asserted by OC Bail Bonds.
First, OC Bail Bonds contends it is entitled to attorney fees in the amount
of $1,870.78, which were incurred to institute foreclosure proceedings on Parwin’s home
(which were ultimately called off). The Bail Bond Agreement contains the following
agreement: “To pay [OC Bail Bonds] or Surety, in the event that it is necessary for them
to institute a suit or collection, for breach of this agreement, a reasonable attorney’s fee
or collection fees . . . .” (Italics added.) However, the invoice evidencing those fees was
billed by “Special Default Services” to “American Contractors Indemnity Co.” American
Contractors Indemnity Company is not a party to this appeal and OC Bail Bonds has not
shown it has standing to assert that claim.
Second, OC Bail Bonds contends Parwin and Imron are liable for $42,750
in penalties that OC Bail Bonds incurred to Global Fugitive Recovery for its failure to
pay the $300,000 bounty. The Recovery Agreement contained the following penalty
provision: “Any unpaid balance . . . carried beyond the seven (7) calendar days shall be
subject to a single 15% penalty and interest at the annual compounded rate of 10% per
year, until paid . . . .” Under this provision, the court awarded $42,750 to Global Fugitive
Recovery against OC Bail Bonds. This penalty was properly not awarded against Parwin
and Imron, however, because they are only on the hook for costs “caused by” Shekib’s
skipping bail. The penalty was caused not by Shikeb’s conduct, but instead by OC Bail
Bonds’ failure to honor its contractual obligation to Global Fugitive Recovery.
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DISPOSITION
The judgment is modified by awarding an additional $271.45 in favor of
OC Bail Bonds against Parwin and Imron Saddozai, bringing the total award in favor of
OC Bail Bonds against Parwin and Imron Saddozai to $326,271.45. As modified, the
judgment is affirmed. Global Fugitive Recovery shall recover costs incurred on appeal as
against OC Bail Bonds. In the interest of justice, OC Bail Bonds shall bear its own costs
on appeal as against Parwin and Imron Saddozai.
IKOLA, J.
WE CONCUR:
FYBEL, ACTING P. J.
THOMPSON, J.
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