Opinion
A155069
09-27-2019
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. ASHLEY CUEVAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-684497)
Defendant Ashley Cuevas pleaded no contest to driving a vehicle under the influence of alcohol causing injury and driving with a blood alcohol content of 0.08 percent or more causing injury. Her actions resulted in significant injury to Richard Smith. Smith filed a separate civil case against Cuevas, which settled for $500,000. The trial court granted Smith's restitution request for attorney's fees in the amount of $166,666.67. Cuevas appeals that restitution order, claiming that the court failed to limit the attorney's fees to Smith's economic losses. We affirm.
BACKGROUND
I. Facts and Procedural History
In August 2016, Cuevas seriously injured Smith when the car she was driving collided with Smith's car. The police took breath samples from Cuevas, measured her blood alcohol content at 0.16 percent at the scene of the accident, and placed her under arrest. She eventually pleaded no contest to driving under the influence, causing bodily injury, and driving with a 0.08 percent blood alcohol content causing bodily injury. In June 2017, the trial court sentenced Cuevas to six months of jail time and four years of probation, reserving the issue of restitution subject to presentation of any claims by the victim. While the criminal case was pending, Smith brought a civil action against Cuevas seeking recovery for his various losses.
In November 2017, the parties notified the trial court that a settlement had been reached in the civil case. According to a letter from Smith's attorney (which was submitted to the court in support of Smith's later restitution request), the parties settled the civil suit for $500,000. The letter from Smith's attorney included a settlement breakdown, which noted that the settlement included payments for, among other things, $1,724 for a chiropractic lien and $42,604.13 for a Medicare medical lien. Smith's attorney also deducted $166,666.67 from the settlement proceeds for his attorney's fees, which represented a 33? percent contingency fee on the total settlement.
In April 2018, Smith submitted a restitution request for $166,666.67 related to the attorney's fees stemming from the civil settlement. Cuevas requested a restitution hearing at which she argued that the $166,666.67 request for attorney's fees should be limited to $14,761.27. Cuevas derived that reduced dollar amount by applying the attorney's contingency fee percentage (33? percent) to $44,328.13—the sum of the $1,724 chiropractic lien and the $42,604.13 medical lien. Cuevas claimed that the two liens were Smith's only economic losses.
II. The Trial Court's Restitution Ruling
The trial court granted the victim's restitution request in the amount of $166.666.67, finding that "there [was] no reasonable way" for it to allocate attorney's fees between the economic and non-economic losses suffered by Smith. Due to the lack of evidence, the court stated it was impossible to determine the value of the attorney's work spent collecting economic losses from Cuevas.
This appeal followed.
DISCUSSION
Cuevas asserts that the court erred when it granted the victim's restitution request of $166,666.67 because the victim should not have been allowed to receive restitution for attorney's fees related to non-economic losses. She further argues that the court should have awarded attorney's fees by multiplying the victim's attorney contingency fee percentage by the economic losses explicitly listed in the settlement breakdown instead of by the total settlement amount. We disagree.
I. Standard of Review
We review a trial court's restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The trial court possesses broad latitude to calculate the amount of restitution, but the method must be "rationally designed" to determine a victim's economic loss. (Id. at pp. 663-664.) No abuse of discretion occurs if a factual and rational basis exists for the amount of restitution ordered. (People v. Grundfor (2019) 39 Cal.App.5th 22, 27.) But if a restitution order is based on a demonstrable error of law, the trial court will have abused its discretion. (People v. Woods (2008) 161 Cal.App.4th 1045, 1049.)
II. Legal Principles Relating to Penal Code Section 1202.4 and Attorney's Fees
California has a strong public policy of providing crime victims with direct restitution for all the losses suffered and to ensure that the crime victims are fully reimbursed. (Cal. Const. art. I, § 28, subd. (b); Pen. Code, § 1202.4, subd. (f)(3).) Notwithstanding this broad policy, Cuevas correctly argues that victims may only recover attorney's fees incurred to collect economic losses. Section 1202.4 governs a trial court's authority to order a criminal defendant to pay restitution directly to a crime victim. Section 1202.4, subdivision (f)(3) provides in relevant part that the restitution order "shall . . . fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including . . . [¶] (H) actual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim." (§ 1202.4, subd. (f)(3)(H).) The statute prohibits victims from receiving restitution for non-economic losses. (People v. Fulton (2003) 109 Cal.App.4th 876, 884 (Fulton).) In addition, "actual and reasonable attorney's fees" are economic losses viewed as costs of collecting restitution. (§ 1202.4, subd. (f)(3)(H); Fulton, at pp. 883-884.) Thus, because restitution is only permitted for economic losses, attorney's fees are recoverable only to the extent they were incurred in collecting economic losses. (Fulton, at pp. 883-885; In re Imran Q. (2008) 158 Cal.App.4th 1316, 1321.)
All further statutory references are to the Penal Code unless otherwise specified.
Once the victim offers prima facie evidence that reasonable attorney's fees were incurred to recover economic losses, the burden shifts to the defendant to demonstrate that a portion of those fees are non-recoverable because "those fees can be attributed solely to a nonrecoverable category of noneconomic losses." (Fulton, supra, 109 Cal.App.4th at p. 886, italics added; see also People v. Taylor (2011) 197 Cal.App.4th 757, 761.) However, a trial court must order restitution for the full amount of attorney's fees if there is no principled and reasonable method of apportioning the fees between those associated with collecting economic versus noneconomic losses. (In re Imran Q., supra, 158 Cal.App.4th at p. 1322; Fulton, at p. 887.) As the Fulton court explained, "It would be improper to reduce the attorney fees incurred to obtain economic damages merely because those same attorney fees also led to the recovery of nonrecoverable damages." (Fulton, at p. 885.) Thus, even if attorney's fees were incurred in collecting both economic and non-economic losses, the full amount of attorney's fees must be awarded if the defendant cannot establish a reasonable means of apportioning the fees between economic versus noneconomic losses in a way that avoids undercompensating the victim. (Id. at pp. 887-888.)
III. Analysis
The trial court properly exercised its discretion in finding that Cuevas failed to meet her burden to demonstrate that a portion of the attorney's fees could be attributed solely to collecting non-economic losses. The court found that apportioning attorney's fees based only on the economic damages explicitly listed in the settlement breakdown was not a "reasonable allocation." As the Fulton court held, "it is not reasonable . . . to assume the value of the attorney's work can be reasonably divided to reflect a percentage of the economic damages and a percentage of the noneconomic damages." (Fulton, supra, 109 Cal.App.4th at p. 887.) The record contains no evidence specifying the amount of time the victim's lawyer spent negotiating economic versus non-economic losses. Additionally, while the settlement breakdown does list certain economic losses suffered by Smith, Cuevas failed to meet her burden by offering evidence demonstrating that all remaining dollar amounts could be attributed to only non-economic losses, such as pain and suffering. Indeed, the breakdown does not list other types of reasonably expected economic losses—such as future medical bills or lost wages—that the trial court could reasonably infer comprised a portion of the remaining dollar amounts in the settlement. (See People v. Grundfor, supra, 39 Cal.App.5th at p. 30 [finding that defendant failed to meet his burden of demonstrating that a portion of the attorney's fees awarded in restitution was incurred solely for recovering noneconomic losses because the proffered apportionment failed to account for future medical expenses and lost earnings].)
In addition, the court in In re Imran Q. held that even if a settlement breakdown "expressly allocates the victim's monetary recovery from the defendant between economic losses and general damages[,] . . . calculating the fees the victim incurred in collecting restitution for economic losses becomes a factual and evidentiary matter assigned to the trial court's discretion." (In re Imran Q., supra, 158 Cal.App.4th at p. 1321.) Here, the trial court properly exercised its discretion in examining the limited evidence before it and determined that "[t]he mere fact that the economic damages [were] X amount ha[d] almost nothing to do with how much work the attorney put in to get X amount."
Cuevas cites In re Imran Q. for the proposition that the court had a duty to attempt apportionment of damages and contends that the court abrogated this duty. But a duty to attempt apportionment only arises when there is a "principled way to make such an allocation." (In re Imran Q., supra, 158 Cal.App.4th at p. 1322; see also Fulton, supra, 109 Cal.App.4th at p. 885.) The trial court satisfied its duty by reviewing the evidence and determining that there was no reasonable or principled method of apportioning the attorney's fees that would have required the trial court to attempt apportionment.
There is likewise no merit to Cuevas's argument that the trial court was required to adopt her proposed method of apportionment because the amount of economic losses was largely undisputed. Although the court in In re Imran Q. suggested that an attorney's fee allocation "might be possible" where the economic losses are undisputed, the court did not hold that a trial court must award attorney's fees based on the same ratio as reflected in the breakdown of economic losses versus non-economic losses. (In re Imran Q., supra, 158 Cal.App.4th at pp. 1321-1322.) Instead, the court held that in calculating the fees associated with collecting economic losses, "the court should not unduly rely on the ratio of general damages to economic losses." (Id. at p. 1322.) Similarly, in Fulton, the court awarded the full amount of attorney's fees in a contingency case in part because the victim's damages were "vigorously disputed," which "increased the attorney resources required to establish [the victim's] economic losses." (Fulton, supra, 109 Cal.App.4th at pp. 887-888.) Here, contrary to Cuevas's assertions, there is evidence from which the trial court could reasonably infer that the civil action had been vigorously disputed. Specifically, a bad faith claim had to be brought against Cuevas's insurer before the parties were able to reach a settlement. On this record, it was reasonable for the trial court to award the victim the full amount of attorney's fees.
Because the trial court's rejection of apportionment of attorney's fees was supported by the record—including the lack of evidence offered by Cuevas—we decline Cuevas's request to remand the matter to the trial court.
We also do not address the contention that the restitution order was unreasonable as a condition of probation under section 1203.1, as Cuevas failed to raise this argument in her opening brief. (In re Ricky H. (1992) 10 Cal.App.4th 552, 562.) --------
DISPOSITION
The restitution order is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.