Tuesday, April 10, 2007
Order for Payment of Legal Fees as Restitution Reversed
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday overturned an order requiring a juvenile involved in a hit-and-run accident to pay legal fees incurred by the victim in his civil action, but said the victim may recover such fees in a reduced amount.
Justice Laurence Rubin of Div. Eight said the victim, Joseph Iaquinto, was entitled to legal fees that he incurred in seeking to recover amounts recoverable as restitution under the Penal Code. But because he also sought general damages not recoverable as criminal restitution, the court should have made an allocation between recoverable and non-recoverable attorney fees, Rubin explained.
The appellant, identified as Imran Q., admitted that he left the scene of an accident involving personal injury and property damages in April 2003, when he was 16 years old. Los Angeles Superior Court Judge Daniel S. Lopez placed him on probation and ordered him to pay more than $57,000 in restitution, covering the victim’s medical expenses, property damage, and lost income.
Iaquinto’s civil action was settled for $100,000 by Imran’s insurance carrier, after which his attorney filed a motion in juvenile court requesting that attorney fees and costs of more than $29,000 for the civil suit plus $2,000 in fees for the motion itself be added to the restitution award.
Lopez granted the motion in part, awarding nearly $18,000. The amount was arrived at by adding the fees and costs requested in the motion to the previously ordered restitution—for a total of $88,728.87—then subtracting $70,770.87, the amount remaining after fees and costs were deducted from the insurance settlement.
In rejecting the contention that the fees and costs were not recoverable at all, Rubin cited Penal Code Sec. 1202.4, which defines restitution as including “actual and reasonable attorney’s fees and other costs of collection.”
There is “no reason to distinguish between an adult’s and juvenile’s duty to provide full restitution to their victims,” Rubin wrote. The lack of a specific provision on the subject in the juvenile restitution statute, Welfare and Institutions Code Sec. 730.6, is “a mere legislative oversight,” the justice concluded.
The statute does not, however, permit the victim to recover attorney fees incurred in collecting pain-and-suffering damages that are not “economic losses” and thus cannot be awarded as restitution in criminal or juvenile court, Rubin said. On remand, he explained, the court must make an allocation—assuming that some portion of the settlement was for pain and suffering—and revise the award accordingly.
“For example, if 70 percent of the settlement reflected payment of economic damages then, in the absence of any other facts, it would be appropriate to allocate 70 percent of the fees and costs to economic damages, which amount could be subject to restitution,” he explained. “We recognize that many settlements do not formally identify the economic and non-economic components of the parties’ agreement. That is beside the point, as trial courts enjoy significant discretion in setting the amount of restitution...and frequently have to make judgment calls in this area in the absence of a complete record.”
The case is In re Imran Q., B188613.
Copyright 2007, Metropolitan News Company