Opinion
F087759 F087760
12-16-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHELLE KAY DE LOS SANTOS, Defendant and Appellant.
MacDonald & Cody, D. Amy Akiyama, and Megan K. Hawkins for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Eric L. Christoffersen, and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF188102A, David E. Wolf, Judge.
MacDonald & Cody, D. Amy Akiyama, and Megan K. Hawkins for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Eric L. Christoffersen, and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Pursuant to a plea bargain, defendant Michelle Kay De Los Santos (defendant) pled no contest to driving under the influence causing bodily injury (Pen. Code, § 23153, subd. (a)) and agreed to pay restitution to the victim, "S.E." The court later denied defendant's motion for an offset based on an insurance payment made to S.E. by defendant's insurer. On appeal, defendant contends that: (1) the trial court erred by not granting her motion for an offset, and; (2) she is entitled to a complete offset of the ordered restitution. The People concede error and agree that defendant is entitled to at least a partial offset, if not a complete offset. We reverse but conclude defendant is entitled to only a partial offset.
Unless otherwise noted, all further statutory references are to the Penal Code.
BACKGROUND
On October 28, 2021, defendant was involved in an automobile accident ("the accident") with S.E. S.E. was injured during the accident.
In January 2022, S.E. entered into a prelitigation settlement agreement ("the settlement") with defendant. S.E. received $100,000 from defendant's insurance company and $3,000 from defendant herself, for a total settlement amount of $103,000. Under the "Recitals" section of the Settlement, recital 3 ("recital 3") provided: "In return for the consideration set forth below, [S.E.] agrees to release [appellant] from any and all claims, demands, and causes of action she may have against [appellant] and for each side to bear their own costs." Under a section entitled "Terms and Conditions," the settlement explained at paragraph 2 ("paragraph 2") that S.E. agreed to release and discharge defendant from:
"Any and all liability, claims, demands, actions, causes of action, damages .., liens, costs, expenses, fees, compensations, controversies, judgments, and rights for claims that [S.E.] may have against [Defendant], whether actual or asserted, present or prospective, .. which have existed or may have existed, or which do exist, or which hereafter can, shall or may exist relating to [the Accident]. [S.E.]'s release, as set forth in this AGREEMENT, is for all transactions and occurrences between the PARTIES relating to [S.E.]'s claims only, as well as other losses, liabilities, claims, charges, demands and causes of action, including a loss of consortium claim, known or unknown, suspected or unsuspected, arising directly or indirectly out of or in any way connected with this AGREEMENT and/or these transactions or occurrences (hereinafter collectively referred to as "RELEASED CLAIMS"). RELEASED CLAIMS include, without limitation, any claim based in tort, loss of consortium, contract, common law, the state or federal Constitution, state or federal statutes, local ordinances and any and all claims for attorney[] fees, costs and expenses."
The "Terms and Conditions" section ended with paragraph 8 ("paragraph 8"), which read: "The PARTIES agree to bear their own costs and attorney[] fees."
On July 8, 2022, defendant signed a plea bargain and pled no contest to driving under the influence causing bodily injury (§ 23153, subd. (a)) and to two enhancements, personal infliction of great bodily injury (§ 12022.7, subd. (a)) and driving with blood-alcohol content of 0.15 percent or more (Veh. Code, § 23578, subd. (a)). Part of the plea bargain required defendant to pay restitution to the victim.
On August 18, 2022, the trial court imposed sentence and ordered defendant to pay restitution under section 1202.4, subdivision (f).
While the timing of the probation department's restitution determination is unclear, by September 8, 2022, the probation department had set the amount of restitution at $56,447.38. The restitution consisted of attorney fees, medical expenses and liens, loss of income, and home modifications.
On January 1, 2024, defendant filed a motion to offset the restitution based on the $103,000 paid by defendant and her insurer to S.E.
On January 8, 2024, a hearing was held on defendant's motion for offset. The trial court held that it was not bound by the civil settlement and that defendant was required to pay the victim's attorney fees pursuant to criminal law. The court also rejected defendant's argument that the 25 percent contingency fee paid by S.E. from the settlement was unreasonably high. Accordingly, the court denied the offset request and ordered defendant to pay S.E. $56,447.38 in restitution.
On February 15, 2024, defendant filed a motion for reconsideration of the restitution order. The trial court denied reconsideration on March 5, 2024.
On March 13, 2024, defendant appealed the denial of her motion to offset and her motion to reconsider.
PARTIES' ARGUMENTS
Defendant argues that her insurance company and S.E. agreed to resolve all claims, including attorney fees, that S.E. may have had against defendant that arose out of the accident. Defendant avers that all items of restitution identified in the restitution order are included within the settlement and that the $103,000 paid to S.E. completely fulfills the restitution order. Therefore, defendant argues that the trial court erred by not granting her a full offset. Additionally, in response to an order for supplemental briefing, defendant argues that the settlement at issue in People v. Grundfor (2019) 39 Cal.App.5th 22 (Grundfor) was materially different from the settlement. Specifically, the settlement in Grundfor did not clearly show the parties' intent to release attorney fees as a claim because attorney fees were not specifically identified as a released matter. Also, the amount of the Grundfor settlement was insufficient to cover the victim's identified damages, but in this case, S.E. actually used the settlement amount to fully pay her attorney fees. With respect to paragraph 8, defendant argues that to the extent that there is ambiguity, the ambiguity should be resolved in favor giving effect to the mutual intent of the parties, which as shown by paragraph 2, was to release all claims of attorney fees in exchange for $103,000.
We ordered the parties to submit simultaneous briefing on two issues: (1) the effect on this case of Grundfor's interpretation of a settlement clause similar to paragraph 8; and (2) the appropriate interpretation of paragraph 8 in light of Grundfor and the settlement as a whole. Both parties timely submitted the requested briefing.
The People agree that the trial court should have granted a full offset because the $103,000 paid to S.E. by defendant and defendant's insurer encompassed all items of restitution identified by the probation office. In supplemental briefing, the People argue that Grundfor is factually distinguishable because it involved a settlement that did not cover all of the victim's losses, was entered into by the victim and the insurance company but not the defendant and did not require the defendant to pay any portion of the settlement amount. Alternatively, the People argue that even if Grundfor is not sufficiently distinguishable, defendant is entitled to a partial offset.
LEGAL STANDARD
The California Constitution provides that victims of crime have a right to restitution from the criminals who caused a loss. (See Cal. Const., art. I, § 28, subd. (b)(13).) Similarly, by statute, "a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (§ 1202.4, subd. (a)(1); see also id., subd. (f).)" 'A victim's restitution right is to be broadly and liberally construed.'" (People v. Baudoin (2022) 85 Cal.App.5th 1184, 1191.) Nevertheless, the purpose of restitution is not to provide the victim with a windfall that exceeds her actual losses. (People v. LaRoche (2023) 96 Cal.App.5th 1020, 1026 (LaRoche); People v. Valle (2023) 93 Cal.App.5th 1329, 1332 (Valle).) Rather, restitution is intended to make the victim whole, as well as to punish, deter, and rehabilitate the defendant. (People v. Cookson (1991) 54 Cal.3d 1091, 1097; People v. Plains All American Pipeline, L.P. (2024) 101 Cal.App.5th 872, 892.) A victim's right to restitution cannot be bargained away, and a prosecutor may not waive the victim's right to restitution. (Plains All American Pipeline, at p. 892.)
For purposes of restitution, payments by an insurance company insuring the defendant constitute payments" 'directly from'" a defendant. (People v. Bernal (2002) 101 Cal.App.4th 155, 158 (Bernal); see also People v. Jennings (2005) 128 Cal.App.4th 42, 53 (Jennings) [holding that a court must determine whether the defendant seeking an offset from an insurance settlement payment was an insured on whose behalf the settlement was made].) Because a restitution order seeks both to recoup a victim's economic losses and to deter and rehabilitate a defendant from future criminal behavior, a civil settlement between a victim and a defendant's insurer will not relieve the defendant of her obligation to the state. (People v. Nonaka (2022) 83 Cal.App.5th 998, 1002 (Nonaka); Bernal, at pp. 161-162.) "However, settlement payments made to a victim on the defendant's behalf must be used to offset the restitution award 'to the extent that those payments are for items of loss included in the restitution order.'" (Nonaka, at p. 1002; see Bernal, at p. 168.) Therefore, if items in a restitution order are not covered by a settlement payment, then the defendant will not be awarded an offset as to those uncovered items. (Grundfor, supra, 39 Cal.App.5th at p. 28; People v. Vasquez (2010) 190 Cal.App.4th 1126, 1137-1138 (Vasquez).)
Restitution awards are reviewed for an abuse of discretion, by which we ask" 'whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts.'" (People v. Giordano (2007) 42 Cal.4th 644, 663.) Therefore, if there is a factual and rational basis for the amount of restitution ordered by the trial court, then there will not be an abuse of discretion. (LaRoche, supra, 96 Cal.App.5th at p. 1026; Valle, supra, 93 Cal.App.5th at p. 1332.) However, if the lower court applies an incorrect legal standard or misunderstands the applicable legal standard, or an order is otherwise based on a demonstrable error of law, an abuse of discretion will be found. (See People v. Baudoin, supra, 85 Cal.App.5th at p. 1191; People v. Moine (2021) 62 Cal.App.5th 440, 448; People v. Millard (2009) 175 Cal.App.4th 7, 32.)
ANALYSIS
I. Offset for Losses Other Than Attorney Fees
Initially, there is no dispute that defendant was an insured on whose behalf the insurer made a payment of $100,000. Therefore, the entire settlement amount of $103,000 is considered a payment to S.E. "made directly by the defendant" for purposes of restitution. (Jennings, supra, 128 Cal.App.4th at p. 53; Bernal, supra, 101 Cal.App.4th at p. 158.) The question becomes whether all items of restitution fall within the coverage of the settlement. (Nonaka, supra, 83 Cal.App.5th at p. 1002; Grundfor, supra, 39 Cal.App.5th at p. 28; Bernal, at p. 168.)
We agree with the parties that most of the items identified by the probation office as items of restitution are subject to an offset. The settlement's inclusion of a release for liens, damages, liabilities, costs, and compensations would capture the following elements of restitution: (1) $23,432.21 in medical liens; (2) $2,270.37 in out of pocket medical expenses; (3) $1,235 in loss of income; and (4) $3,759.50 in home modification expenses. Given the nature of the expenses described and the language of the settlement, we can detect no appropriate reason to deny defendant an offset for these amounts from the $103,000 settlement payment. (See Nonaka, supra, 83 Cal.App.5th at p. 1002; Bernal, supra, 101 Cal.App.4th at p. 168.) Therefore, the trial court's contrary conclusion was an abuse of discretion.
II. Offset of Attorney Fees
The more difficult question is the $25,750 in attorney fees. This amount represents a 25 percent contingency fee by S.E.'s attorneys. Reasonable legal expenses incurred by a victim to recover her economic damages from the defendant and/or the defendant's insurance carrier constitute economic loss for purposes of restitution. (§ 1202.4, subd. (f)(3)(H); Grundfor, supra, 39 Cal.App.5th at p. 25; People v. Fulton (2003) 109 Cal.App.4th 876, 889 (Fulton); People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406 (Pinedo).)
Defendant's opening brief contends that the broad language of the release and the express identification of attorney fees as a type of claim released mean that the $25,750 in attorney fees is a loss covered by the settlement. We would be inclined to agree with this analysis but for the fact that it focuses entirely on paragraph 2. Defendant makes no mention of paragraph 8, which expressly states that the parties are to bear their own attorney fees, or recital 3, which similarly states that the parties are to bear their own costs. If we were to read paragraph 2 in the manner urged by the parties, that is as encompassing the attorney fees incurred to obtain the settlement, we would be adopting an interpretation that renders paragraph 8 entirely redundant and meaningless. We decline to adopt such an interpretation. (Yahoo Inc. v. National Union Fire Ins. Co. (2022) 14 Cal.5th 58, 69 ["Courts will favor an interpretation that gives meaning to each word in a contract over an interpretation that makes part of the writing redundant"]; In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 688 [" '[a] contract term should not be construed to render some of its provisions meaningless or irrelevant' "].)
Instead, paragraph 8 can be read as resolving a specific subset of general claims for attorney fees, specifically the attorney fees incurred to procure the settlement. The parties resolved this specific subset of attorney fees by agreeing that each side would bear their own fees without compensation. That is, S.E. and defendant agreed that S.E. would not be compensated through the settlement for the attorney fees and costs she incurred to obtain it, but would instead bear those fees on her own. (Cf. Grundfor, supra, 39 Cal.App.5th at p. 29 ["Here, the terms were that each side would bear its own attorney fees. Because the terms unambiguously show that the parties did not intend to include all of N.M.'s losses - including her attorney fees - in the settlement, they could not have intended to resolve all restitution issues in it"].) On the other hand, paragraph 2 can be read as resolving general claims for attorney fees that could be alleged against defendant, except for those incurred to obtain the settlement. Those general fees could be in the form of items of damage that may attach to a cause of action that S.E. may have been able to pursue against defendant. Such claims were resolved through payment of $103,000 to S.E. This interpretation of the relationship between paragraphs 2 and paragraph 8 is also consistent with recital 3. The parties agreed to release "any and all claims, demands, and causes of action," but "for each side to bear their own costs. That is, the parties recognized that some expenses and claims were resolved by a release in exchange for money, while others were resolved by an agreement for the parties to bear the expense themselves and forgo a claim.
As noted above, the parties were ordered in part to brief the issue of the proper interpretation of paragraph 8 in light of the settlement as a whole and Grundfor. The parties did not do so. Neither defendant nor the People explained what paragraph 8 means, how it relates to paragraph 2, or what purpose paragraph 8 serves in the settlement. We take the parties' briefing as a tacit admission that they are urging an interpretation that makes paragraph 8 entirely redundant of paragraph 2.
Defendant's supplemental briefing argues that the settlement "explicitly and repeatedly" identifies attorney fees and costs as items of damage that were released. However, defendant again highlights only paragraph 2, and paragraph 2 "explicitly" uses the term "attorney[] fees" once. On the other hand, recital 3 and paragraph 8 together twice explicitly indicate that there are claims and expenses for which the parties will not be compensated.
It has been held that, for purposes of restitution, if a settlement agreement provides for the victim to bear her own attorney fees, then there will be no offset because the victim has incurred an economic loss in obtaining the recovery and that loss was expressly not covered by the agreement. (Grundfor, supra, 39 Cal.App.5th at p. 28 ["Such [attorney] fees are recoverable unless they are offset in a civil settlement. [Citation.] Here, they were not; the settlement required each side to bear its own attorney fees. The court was thus required to order Grundfor to pay full restitution for the fees"]; see also Nonaka, supra, 83 Cal.App.5th at p. 1002; Pinedo, supra, 60 Cal.App.4th at p. 1406.) In this case, S.E. received a settlement of $103,000, "which presumably compensated [her] for damages actually arising from the [accident]." (Pinedo, at p. 1406.) Although defendant points out that the amount of the settlement was the insurer's policy limits plus $3,000 from defendant, the mere fact that the settlement was 103 percent of the insurance policy limit alone tells us nothing about the nature of the losses compensated by the settlement. While it appears defendant wishes us to infer that this amount was increased to cover attorney fees, (cf. ibid. [noting that no evidence was introduced to demonstrate the amount of the settlement was increased to cover the contingent attorney fees]), such a conclusion is too speculative. By way of example only, the reason for the $103,000 amount could have just as easily been to address foreseeable future medical expenses, future home modification expenditures, or significant pain and suffering. We simply do not detect a sufficient indication from the amount of the settlement, or from the fact that the settlement exceeds the amount of attorney fees at issue, that the settlement "was increased to cover attorney[] fees." (Ibid.) As a result, S.E. "suffered a loss to the extent [she] had to pay part of [her] settlement to [her] attorney." (Ibid.) Therefore, because paragraph 8 operates to require S.E. to bear the economic expense of the attorney fees incurred to obtain the settlement, and there is an insufficient indication that the settlement amount was increased to cover S.E.'s attorney fees, the $25,750 restitution award for attorney fees is outside the scope of the settlement and not subject to offset. (Nonaka, supra, 83 Cal.App.5th at p. 1002; Grundfor, supra, 39 Cal.App.5th at pp. 28-29; see also; Pinedo, at p. 1406.)
We recognize that the release in paragraph 2 is extensive and at one point expressly mentions "attorney[] fees." In contrast, Grundfor's release was much simpler: the victim agreed to" 'waive[] any [and] all claims [she had] against [Grundfor] and Allstate.'" (Grundfor, supra, 39 Cal.App.5th at p. 26.) Grundfor's settlement also clarified that it was" 'meant to resolve all matters between [the] parties so that neither [side would] face a claim from the other at any time in the future.'" (Ibid.) Although not as verbose and detailed, these two aspects of the Grundfor settlement are consistent with the settlement. Both the settlement and the Grundfor settlement were an attempt to settle all matters, including future matters, relating to a car accident by an inebriated driver. Instead of going into minute (and arguably unnecessary) detail to describe each conceivable type of claim released like the settlement does, the Grundfor settlement used simple broad language. "Any and all claims" is sufficient to encompass a "claim" for attorney fees. Moreover, like the settlement in this case, the Grundfor settlement stated that "each side [was] to bear its own attorney[] fees." (Id. at p. 28.) Grundfor therefore recognized that, despite a broad release that was intended to in part address future claims arising from the accident, the attorney fees incurred to obtain the settlement were expressly excluded from the settlement amount and thus, subject to restitution without offset. (Id. at pp. 30-31.) Given the purpose and broad language of the Grundfor release, we cannot hold that the settlement and the settlement in Grundfor are so different that the settlement should be read to mandate an offset for attorney fees from the $103,000 paid to S.E.
We also recognize that the facts in Grundfor are not identical to the facts in this case. However, we are not convinced that the factual differences identified by the parties are persuasive. First, the fact that the settlement is between is S.E. and defendant, while the settlement in Grundfor was between the insurer and the victim, appears irrelevant. Mr. Grundfor was an insured under an automobile policy. (Grundfor, supra, 39 Cal.App.5th at pp. 25-26.) The insurer negotiated a settlement pursuant to its policy in an attempt to resolve the victim's claims against both the insurer and Mr. Grundfor. (Id. at p. 26.) There was no indication that the policy did not grant the insurer the right to negotiate a settlement in the manner that it did, and a settlement through the insurance policy was apparently desired by Mr. Grundfor based on his statement to the trial court that he had $500,000 in insurance that would pay the victim's damages. (Id. at p. 25.) Under Bernal and Jennings, the settlement payment from the insurer constitutes a "direct payment by the defendant" for purposes of section 1202.4 (Jennings, supra, 128 Cal.App.4th at p. 53; Bernal, supra, 101 Cal.App.4th at p. 168), irrespective of the fact that Mr. Grundfor did not sign the settlement agreement.
Second, the fact that defendant contributed $3,000 to the settlement demonstrates nothing other than S.E. was unwilling to settle for defendant's $100,000 policy limit. Further, the fact that defendant directly paid $3,000 does not show that the restitution objectives of deterrence and rehabilitation were satisfied. The objectives of deterrence and rehabilitation are furthered by orders requiring a defendant to pay all of a victim's economic losses because such orders create a precise deterrent effect that directly corresponds to the victim's actual economic harm and require a defendant to concretely confront the harm she caused. (Grundfor, supra, 39 Cal.App.5th at p. 29.) Paragraph 8 and recital 3 operate in such a way as to exclude the attorney fees and costs from the settlement, which means that S.E. incurred $25,750 in order to obtain her $103,000. Permitting the payment of $3,000 to satisfy a $25,750 economic loss (as argued by the People) would result in $22,750 of uncompensated economic loss to S.E. and thus, would not correspond to S.E.'s actual losses. Such a result would create a windfall to defendant and would be contrary to the goals of deterrence and rehabilitation.
Finally, the parties are correct that the amount of damages obtained by the victim in Grundfor was insufficient to cover all of the victim's economic losses, whereas the settlement exceeds the identified amounts of economic loss sustained by S.E. However, the distinction misses the mark. In order to determine whether a defendant is entitled to an offset from an insurance payment, the inquiry is not simply how much did the victim receive. (Vasquez, supra, 190 Cal.App.4th at p. 1137 [explaining that the fact that a settlement "was for a sum greater than the restitution order does not mean ... [the defendant] is entitled to a credit for the full amount paid through [a] homeowners policy."]) The correct inquiry is whether the insurance" 'payments are for items of loss included in the restitution order.'" (Nonaka, supra, 83 Cal.App.5th at p. 1002; see Bernal, supra, 101 Cal.App.4th at p. 168.) As in Grundfor, paragraph 8 of the settlement states that the parties are to bear their own fees and costs that were expended to obtain the settlement. The effect of paragraph 8 is to exclude these fees from scope of the $103,000 settlement amount. That is, irrespective of the fact that $103,000 exceeds $25,750 in attorney fees and $56,447 in total identified economic loss, the settlement excluded the $25,750 in fees. (Cf. Vasquez, at p. 1137.) Therefore, under the correct inquiry, defendant is not entitled to an offset, and S.E. does not receive a windfall, because the attorney fees and costs expended to obtain the settlement are explicitly excluded from the $103,000 amount. (See Nonaka, at p. 1002; Grundfor, 39 Cal.App.5th at p. 28; Vasquez, at pp. 1137-1138; Bernal, at pp. 168, 170-171; see also Pinedo, supra, 60 Cal.App.4th at p. 1406.)
In sum, the attorney fees and costs expended by S.E. to obtain the settlement are excluded from the scope of the $103,000 settlement amount. Therefore, the trial court correctly concluded that the entire $25,750 in attorney fees was not subject to offset.
III. Reasonableness of Attorney Fees
Again, actual and reasonable attorney fees that a victim incurs to recover damages from a defendant constitute an economic loss that is recoverable through a restitution award. (§ 1202.4, subd. (f)(3)(H); Grundfor, supra, 39 Cal.App.5th at p. 25.) Contingency fees are often the method by which a victim of criminal conduct pays her attorneys to obtain compensation for her losses. (People v. Taylor (2011) 197 Cal.App.4th 757, 761; Fulton, supra, 109 Cal.App.4th at p. 889.) The typical contingency fee is 33 1/3 percent. (Nonaka, supra, 83 Cal.App.5th at p. 1003.) A contingency fee of 25 percent is considered "well within the acceptable range of contingency fees." (Fulton, at p. 889; see also Nonaka, at p. 1003.) Nevertheless, a contingency fee award may be unreasonable in light of the work actually performed. (Pinedo, supra, 60 Cal.App.4th at p. 1406; see also People v. Millard, supra, 175 Cal.App.4th at pp. 30-32.) Once evidence is presented that demonstrates costs have been incurred by the victim, the burden shifts to the defendant to challenge the appropriateness of restitution. (Nonaka, at p. 1003; Pinedo, at p. 1406.)
Here, defendant's counsel argued that the $25,750 in attorney fees was excessive in light of the work actually performed by counsel, which allegedly consisted of one email, one letter, and one facsimile transmission. The trial court disagreed with this objection based on the rationale that merely because one professional charged more for a service than another professional may have charged does not mean that the fee was unreasonable.
We cannot agree with the trial court's analysis. Simply because S.E.'s attorneys charged her a particular amount does not mean that the amount was reasonable per se and thus, subject to complete restitution. (People v. Millard, supra, 175 Cal.App.4th at p. 33.) In the face of defendant's opposition, the court must assess and calculate a reasonable fee through any rational method, such as the lodestar method, or through specific considerations appropriate to the particular case (such as other economic damages incurred by the victim, the amount of time spent by the attorney on the matter, the attorney's reputation, and the likelihood of successful litigation), or perhaps through a combination of the lodestar method and case specific considerations. (See People v. Marrero (2021) 60 Cal.App.5th 896, 909; Grundfor, supra, 39 Cal.App.5th at pp. 30-31; Millard, at pp. 22, 26, 31-32). Because the record shows that, in the face of defendant's objections and arguments, the court awarded attorney fees on the sole basis that the fees were actually incurred, which is the incorrect standard, we must reverse the trial court's determination that the full $25,750 of attorney fees was subject to restitution. (Millard, at p. 33.) We will remand the matter for the trial court to hold further proceedings to determine the amount of reasonable attorney fees incurred utilizing the correct legal standard. (Id. at pp. 33, 44.) While the contingency fee in this case may ultimately be determined to be reasonable, that determination must be made on a basis other than the mere fact the fee was charged and paid. (Id. at p. 33.)
We express no opinion as to what amount of attorney fees would or could constitute a reasonable fee.
DISPOSITION
The orders of the trial court denying defendant's motion for offset and defendant's motion for reconsideration are reversed. This matter is remanded for the trial court to grant defendant's motion for offset with following items being fully offset by the $103,000 settlement payment: (1) $23,432.21 in medical liens; (2) $2,270.37 in out of pocket medical expenses; (3) $1,235 in loss of income; and (4) $3,759.50 in home modification expenses. The trial court shall also conduct further proceedings consistent with this opinion to determine the amount of attorney fees to which S.E. is entitled as restitution.
[*] Before Detjen, Acting P. J., Snauffer, J. and De Santos, J.