In re IMRAN Q.

Filed 1/15/08; opinion following rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the order of the Superior Court of Los Angeles County. Daniel S. Lopez, Judge. Reversed and remanded.

Anne E. Fragasso, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, Kenneth N. Sokoler and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

Imran Q. appeals from the juvenile courts order that he pay $17,958.13 in restitution to Joseph Iaquinto. We remand this matter to the juvenile court for it to recalculate the restitution amount.

FACTS AND PROCEDURAL HISTORY

In April 2003, then 16-year-old appellant Imran Q. fled from a car accident in which he injured Joseph Iaquinto. Appellant later admitted in juvenile court to one count of hit and run with an injury and one count of hit and run with property damage. The court declared appellant a ward of the court and sentenced him to home on probation. It also ordered him to pay $57,499.74 in restitution to Iaquinto for his economic losses, consisting of medical expenses, property damage, and lost income.[1]

Appellant eventually settled Iaquintos personal injury lawsuit against him for $100,000, the policy limit of appellants insurance coverage.[2] Iaquintos attorney received $29,229.13 in fees and costs off the top of the settlement, meaning Iaquinto netted $70,770.87 from his lawsuit. Iaquinto thereafter moved to recover as further restitution the fees and costs he paid to his attorney to achieve the settlement. In addition, Iaquinto asked the court to award him the $2,000 he owed to the attorney handling his motion for additional restitution.

The court concluded Iaquintos total economic losses from the car accident were $88,728.87, an amount the court apparently reached by adding the $29,229.13 in fees and costs from the settlement and the $2,000 for the restitution hearing plus Iaquintos initial economic losses of $57,499.74. Noting that Iaquintos net recovery from his settlement with appellant was $70,770.87, the court found Iaquinto had not been compensated for the $17,958 difference between his $88,728.87 in economic losses and $70,770.87 in net settlement proceeds. The court therefore ordered appellant to pay Iaquinto $17,958.13[3]in additional restitution. This appeal followed.

DISCUSSION

The Legislature intends that crime victims receive full restitution for their economic loss[es]. (Welf. & Inst. Code,  730.6, subd. (a) [juvenile offenders]; Pen. Code,  1202.4 [adult criminals].) From the car accident and its immediate aftermath, Iaquinto suffered $57,499.74 in economic losses for his medical bills, property damage, and lost earnings. Appellant does not dispute Iaquintos right to restitution of those losses. After suing appellant, Iaquinto received $100,000 in settlement from which he paid his attorneys $31,299.13[4]in legal fees and costs, for which the court also ordered restitution. Appellant contends Iaquinto may not receive restitution for those fees and costs. We disagree.

Welfare and Institutions Code section 730.6 ( 730.6) authorizes a court to order a juvenile to pay restitution to compensate a victim in:

. . . a dollar amount sufficient to fully reimburse the victim . . . for all determined economic losses incurred as the result of the minors conduct . . . includingall of the following: [] (1) . . . value of stolen or damaged property. . . . [] (2) Medical expenses. [] (3) Wages . . . lost due to injury . . . . ( 730.6, subd. (h) Italics added.)

Appellant contends Iaquintos attorneys fees and costs were not recoverable for two reasons. First, according to appellant, section 730.6 does not include legal fees and costs in its list of compensable economic losses. Second, even if fees and costs counted as economic losses, appellants $100,000 settlement payment more than satisfied Iaquintos economic losses of $88,728.87.

In In re Johnny M. (2002) 100 Cal.App.4th 1128, we held that section 730.6s definition of economic losses is expansive. Specifically, In re Johnny M. noted that the italicized statutory language quoted above including all of the following is a phrase of enlargement, meaning the categories of economic losses explicitly identified in the statute are not exhaustive. (Id. at pp. 1135-1136.) For guidance in interpreting economic losses in section 730.6, In re Johnny M. looked to the parallel adult restitution statute, Penal Code section 1202.4. (Id. at p. 1132; see also People v. Birkett (1999) 21 Cal.4th 226, 240 fn. 15 [adult restitution statute reflects parallel restitutionary requirements for juvenile offenders].)

Penal Code section 1202.4 permits a court to order restitution of legal fees and costs that a victim incurred to collect restitution. (Pen. Code,  1202.4, subd. (f)(3)(H) [actual and reasonable attorneys fees and other costs of collection].) We see no reason to distinguish between an adults and juveniles duty to provide full restitution to their victims. (People v. Martinez (2005) 36 Cal.4th 384, 394, fn. 2 citing with approval In re Johnny M., supra, 100 Cal.App4th 1128 [Section 730.6, which is applicable to juvenile offenders, parallels Penal Code section 1202.4, which governs adult restitution.) We thus find section 730.6s silence on attorneys fees and costs a mere legislative oversight. (Accord In re Johnny M., supra, [Legislatures failure to amend juvenile restitution statutes list of economic losses from including all of the following to including, but not limited to, all of the following when it so amended adult restitution statute was merely legislative oversight].) Consequently, in order to ensure Iaquinto receives full restitution for his economic losses from the accident, the juvenile court did not abuse its discretion when it ordered appellant to pay additional restitution for the legal fees and costs Iaquinto incurred to collect restitution. (In re Johnny M., supra, at p. 1132 [restitution order reviewed for abuse of discretion].)

In calculating Iaquintos total economic losses, the court determined he could recover all of his legal fees and costs as restitution. The courts unstated premise in awarding the entire amount was that Iaquinto incurred those fees and costs solely to collect restitution. That premise ignores that some portion of Iaquintos $100,000 settlement was likely for his pain and suffering. The restitution statutes do not authorize restitution for legal fees incurred to recover general damages, only those incurred for collection of economic loss. (Pen. Code,  1202.4, subds. (f)(3), (f)(3)(H).) The record does not show the parties or court attempted to allocate the settlement between economic damages supporting restitution medical expenses, property damage, and lost income and pain and suffering, which do not support restitution. The failure to do so does not waive the allocation issue because until this appeal no published decision determined whether attorneys fees for collecting restitution were recoverable in a juvenile proceeding.

We remand to the trial court to determine first the allocation, if any, of the settlement between economic losses and general damages. Iaquinto is entitled to recover all the attorneys fees he actually and reasonably incurred to collect restitution for his economic losses; he is not entitled, however, to recover fees incurred exclusively for collecting general damages. (People v. Fulton (2003) 109 Cal.App.4th 876, 885-886; Pen. Code,  1202.4, subd. (a)(1).) We envision two scenarios that victims such as Iaquinto face in recovering attorneys fees after a jury verdict or settlement in their favor. In the first scenario, the settlement or verdict expressly allocates the victims monetary recovery from the defendant between economic losses and general damages. Under those circumstances, calculating the fees the victim incurred in collecting restitution for economic losses becomes a factual and evidentiary matter assigned to the trial courts discretion. (People v. Boudames (2006) 146 Cal.App.4th 45, 53.) In determining those fees, the trial court should recall the practice of many legal and insurance professionals to link general damages to a formula or rule-of-thumb involving proven economic losses. Accordingly, the lions share of the victims legal fees often comes from proving economic losses, with general damages an arithmetical add-on. Hence, the court should not unduly rely on the ratio of general damages to economic losses in calculating attorneys fees that were incurred to collect restitution for economic losses.

The second scenario we envision victims face arises when a verdict or settlement does not allocate the victims recovery between economic losses and general damages. To vindicate the victims right to recover attorneys fees incurred in collecting restitution for economic damages, the court should attempt allocation of the verdict or settlement. If there is no principled way to make such an allocation, the courts duty ends there, and the court should include all of the attorneys fees as part of its restitution order. (See Fulton, supra, 109 Cal.App.4th at p. 886.) On the other hand, allocation might be possible, particularly following a settlement or verdict where the amount of economic losses was largely undisputed or unchallenged and the monetary award exceeded those losses. Evidence as to how a case was argued to the trier of fact, or, in the case of a settlement, the negotiation process, would generally be admissible.

If an allocation between economic and general damages is feasible, the trial court is to utilize the procedure established in People v. Fulton, supra, 109 Cal.App.4th 876, for allocating fees under the adult restitution statute. Because we hold no principled reason exists for distinguishing between an adults or juveniles duty to provide full restitution to victims, we apply Fulton here. If on remand appellant contends Iaquinto seeks attorneys fees he incurred solely in collecting general damages, it will be appellants burden to prove his contention by a preponderance of the evidence. (Id. at p. 886 [discussing allocation of fees and costs between recoverable restitution and general damages under adult restitution statute Pen. Code,  1202.4].) Appellant carries the risk of failing to meet his evidentiary burden. Thus, if appellant does not, or cannot, allocate fees and costs incurred in recovering economic losses and non-recoverable general damages, Iaquinto may recoup the actual and reasonable attorneys fees and costs he expended in collecting restitution even if some undetermined portion of those fees and costs were spent in recovering general damages. (Fulton, supra, at p. 885 [when fees cannot be reasonably divided between the pursuit of economic losses as opposed to noneconomic losses, the victim is entitled to be fully reimbursed for all actual and reasonable attorney fees].) The reasonableness of any such fee award will rest in the trial courts discretion. (People v. Boudames, supra, 146 Cal.App.4th at p. 53.)

DISPOSITION

The restitution order of December 28, 2005, is reversed and the matter is remanded to the trial court to recalculate attorneys fees and costs for which appellant must provide restitution.

CERTIFIED FOR PUBLICATION

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

[1] Some confusion exists about the amount of the restitution order, which is not in the record. The probation report states it was $58,649.73. At the end of the hearing at issue in this appeal, the juvenile court stated the amount was $58,704.78. We conclude it was in fact $57,499.74 because that number makes the trial courts later mathematical calculations work.

[2] A second defendant also settled with Iaquinto for $15,000, but payment from sources independent of appellant do not affect his restitution obligations. (People v. Hamilton (2003) 114 Cal.App.4th 932, 941-942.) Accordingly, the juvenile court correctly disregarded this second settlement in analyzing appellants restitution obligations.

[3] During the hearing, the parties sometimes discussed amounts of money in round figures, and sometimes to the exact penny. From those discussions, we cannot immediately discern the courts reason for adding 13 cents, but we accept that addition because the court incorporated it into its final order.

[4] Of that amount, $29,299.13 went to the personal injury attorney and $2,000 went to the attorney handling the restitution request.