Friday, January 4, 2019
By a MetNews Staff Writer
The Third District Court of Appeal has modified a restitution order by excising a requirement that the defendant pay for the lost profits on two recreational vehicles he destroyed because his insurer had paid the wholesale value and any injury beyond that was speculative.
The opinion, filed Wednesday and not certified for publication, was written by Acting Presiding Justice Harry E. Hull Jr.
The defendant in the case, Joel F. Bumgarner, was arrested by Placer County sheriff’s deputies in 2014 after his girlfriend reported that he had driven off, “possibly under the influence after taking several prescription pills.”
In the course of the man’s joyride, he made a detour through a car dealership which sold RVs, four of which he smashed into before being apprehended.
Bumgarner pled no contest to no contest to evading an officer, a felony, and two misdemeanors. He was placed on formal probation, a condition of which was that he pay restitution to the dealership.
Retired Placer Superior Court Judge James D. Garbolino, sitting on assignment, agreed with both parties that an order to pay the full value of the damaged RVs would be inappropriate, given that Bumgarner’s insurance company had already reimbursed the victim’s insurance company for, among other things, the wholesale value of two of the RVs which had been totaled.
The judge instead ordered the defendant to pay the dealership for the difference between the wholesale price of the RVs and their retail prices. He also ordered him to pay $2,000, the amount of wages spent by the dealership to pay its workers for two days of clean-up, the length of its closure after the incident.
“What was sought and awarded here was restitution for the lost profits on the two totaled RVs, the difference between their wholesale and retail values. The trial court did not specifically state that it was awarding restitution based on lost profits for the two totaled RVs, but the nature of the award indicates this purpose….
“While the prosecution in this case presented evidence that the dealership lost profits on the two damaged but repairable RVs, there was no evidence of any lost sale or any evidence of lost profits on the two totaled RVs.”
He cited the First District Court of Appeal’s 2010 opinion in People v. Chappelone, where that court had accepted the defendant’s contention that awarding lost profits as restitution to a retailer would be an inappropriate windfall to the victim.
Explaining the court’s modification of the order to exclude such potential profits, Hull wrote:
“As in Chappelone, the trial court here could not award restitution for lost profits in the absence of any evidence of such loss. The restitution award for lost profits on the two totaled RVs was erroneous.”
The Third District affirmed the order as modified, deducting $2,943 from the restitution award, leaving a balance of $10,107.
The case is People v. Bumgarner, C085296.
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