RESTITUTION AND PERSONAL INJURIES – CLIENTS MIGHT BE LEAVING MONEY ON THE TABLE

Some tort cases involve a defendant who is also charged with a crime. The defendant in some of these cases has assets. Many personal injury attorneys are not aware that a civil settlement with a wealthy defendant who has been convicted may substantially under compensate their clients - without regard to the reasonableness of the settlement. In other words, the client may be able to greatly increase his or her net receipts.

If the civil defendant is convicted of a crime - be it an infraction, misdemeanor or felony - and that crime caused the injuries that were a subject of the civil suit, victim restitution comes into play. As a victim, the plaintiff is entitled to restitution. While it is true the victim/plaintiff cannot recover twice for the same injury, restitution can still make a huge difference in the take home for the plaintiff. The reason: a victim may recover restitution for the attorneys' fees incurred in his or her civil case against the defendant. People v. Pinedo (1998) 60 Cal. App. 4th 1403, 1406, 71 Cal. Rptr. 2d 151. An example will make the financial impact of this right clear.

Assume your client, the female plaintiff, was injured in a car crash and she hires your firm on a 40% contingency fee. The defendant pleads guilty to driving under the influence. There is a $300,000 civil settlement, comprised half of economic (medical bills, therapy, lost wages) and non-economic (emotional distress) damages. Your firm will receive about $120,000 as its fee. After receiving the civil settlement, the plaintiff can go to criminal court and seek a restitution order for one-half of the contingent fee, $60,000. This amount is sought because one-half of the civil settlement was for economic losses. The victim had to pay your fees to get that part of the civil settlement and is therefore entitled to recoup them from the defendant as restitution. The criminal court can order $60,000 restitution. That means your client's net civil recovery of $180,000 ($300,000 less the $120,000 contingency fee) will increase by 33% to $240,000. That is a huge increase for the client.

To get a $60,000 restitution order will certainly take multiple appearances in criminal court. The defendant is entitled to, and will, oppose the restitution. There will be briefing in addition to hearings. A natural question is who pays for this excursion into criminal court. The answer is in a statute: Penal Code allows recovery by victims (as part of restitution) of their "actual and reasonable" attorneys' fees. So the victim may recover, from the defendant, any fees expended in criminal court to get fees in the civil case.

Although it may take several appearances to get to the restitution hearing, that hearing stands in stark contrast to a civil trial and its antecedents: no discovery, no depositions, proof may be made by declaration and live witnesses are not required. A restitution hearing can be put on calendar within weeks in most criminal courts. Most hearings take less than an hour, if appropriate preparation and briefing has been done. Often criminal defense counsel file little or no written opposition and call no witnesses. One reason that the defense rarely calls a witness is that the defense witness with the most information is usually the criminal defendant - and defense counsel are loathe to put the newly convicted defendant on the stand. Finally, since restitution is part of sentencing, the rules of evidence do not apply.

Some defendants will raise the specter of the civil release, especially one with a broad "bullet proof" Civil Code section 1542 provision. This issue, whether a broad release in a civil can eliminate the right to restitution, has been repeatedly litigated and with consistently the same result. "[T]he settlement of a civil action and release of the defendant by the crime victim does not discharge the defendant's responsibility to satisfy the restitution order." People v. Vasquez (2010)190 Cal. App. 4th 1126, 1133. There are several reasons for this. First, one of the oldest laws on the books instructs: "When the violation of a right admits of both a civil and criminal remedy the right to prosecute the one is not merged in the other." Code of Civil Procedure §32 (1872), entitled "Civil and Criminal Remedies not Merged."

Another reason is that the parties are not the same in a civil case and a criminal case. A victim is not a party to a criminal prosecution. The only parties are the People and the defendant. A third reason the civil settlement release cannot spill over into a criminal case is because restitution has a unique criminal law purpose: rehabilitation. Making criminal pay restitution to the victim is part of the learning experience for a defendant, a learning experience intended to direct the defendant away from illegal activity.

Once restitution has been ordered, additional tools are available to enforce payment. The criminal system has its own garnishment procedures. If the trial court determines that the defendant has the ability to pay restitution, it must enter a separate order for income deduction once restitution has been determined. Penal Code § 1202.42.

Many defendants are on probation. Probation is a powerful tool for collecting restitution. When the court grants probation and orders the defendant to make restitution, timely payment is a condition of probation. Penal Code §1202.4(m). Wilful failure to pay restitution can result in revocation of probation and imprisonment. People v Lawson (1999) 69 Cal. App. 4th 29, 39, 81 Cal. Rptr. 2d 283. This remedy makes all the civil sanctions in the world look timid. It is the rare deep pocket defendant who would elect to go to prison rather than pay restitution.

Many civil attorneys who learn of the power of restitution may wish that they had learned of it some time ago, when, for example, a specific case had settled. This leads to an amazing aspect of victim restitution. Victim restitution rights cannot be lost by the passage of time. The criminal court must retain jurisdiction to hear a victim's claim for restitution. Penal Code §§1202.4(f),1202.46. This means that even cases which settled earlier, which meet the requirements of a criminal conviction and a deep pocket defendant, may merit re-examination. It is the rare client who feels that the attorneys' fees paid - whether hourly or contingent - were trivial. This remarkable feature of restitution, that it can be pursued years later, means that attorneys who did not know about and did not advise their clients of the possible great increase in net recovery can still help their client.

Antonio R. Sarabia II is an attorney in Southern California who specializes in victim restitution. He represents victims and consults with other attorneys about restitution cases. He may be reached at asarabia@cox.net.