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People v. Fulton6/12/2003
a personal injury action against Fulton on behalf of the Overtons. The case settled in May 2000 for $100,000, Fulton's policy limits. At that time, Overton's economic losses were estimated to be approximately $25,898. The Overtons signed a Release of All Claims which specifically excluded their right to pursue further criminal proceedings against Fulton, including a restitution order.
The documents submitted at the restitution hearing further established that during the course of the initial, unsuccessful settlement negotiations, Wawanesa had agreed to pay Overton his property damages, but disputed the value of his other claimed damages. Wawanesa was particularly skeptical of Overton's claim that his shoulder injury would require further surgery. Echoing a similar view, Fulton's counsel opined that "it is doubtful that Wawanesa will pay $100,000 to resolve Mr. Overton's claim." Thereafter, Wawanesa offered $70,000 to settle the matter, but Overton rejected the offer. Unable to convince Wawanesa of the extent and nature of Overton's physical injuries, Savaglio filed the lawsuit against Fulton. Following initial discovery, the production of additional medical records and a defense independent medical examination confirming the need for future shoulder surgery, Savaglio successfully settled the case at the $100,000 policy limits. In doing so, Savaglio spent in excess of 135 hours of her time (at $175 per hour), and more than 50 hours of her legal assistant's time (at $50 per hour). Under the contingency fee agreement, Savaglio received 25 percent of the $100,000 settlement ($25,000) and litigation costs.
In opposition to Overton's claim that he was entitled to $25,000, Fulton argued that the restitution for attorney fees should be limited to the portion of the contingency fee attributable solely to recovering Overton's economic damages which Fulton claimed were $12,500. According to Fulton, the 25 percent contingency fee should be applied solely to the economic damages, not to the total recovery of $100,000, which reflected both economic and non-economic damages. In the alternative, Fulton argued the $25,000 fee was unreasonable.
At the outset of the restitution hearing, the trial court stated it had tentatively concluded that the entire attorney fees were recoverable, regardless of how much of the attorney services were incurred to obtain economic, as opposed to non-economic, damages. The court later stated it "remain unconvinced that there is any workable . . . practical formula that would allow a court to take attorneys fees and divide them up between economic and non-economic damages. [ ] I'm already and absolutely convinced you can't do it by the ratio of the recovery, and I also find it entirely unworkable that you would do it by a full-blown factual analysis of the attorney time spent. [ ] [Based on] the language of the statute, I remain convinced that the entire attorney fee contingency or otherwise is an economic cost that is attributable - that can be awarded by a judge in a criminal case."
The trial court thus found the entire attorney fees qualified as an economic loss within the meaning of section 1202.4, subdivision (f)(3), and that the 25 percent contingency fee was reasonable. Accordingly, the trial court ordered Fulton to pay restitution of $25,000 for attorney fees to Overton.
DISCUSSION
I. Recoverable Attorney Fees Under Section 1202.4
Fulton contends the court erred in awarding $25,000 in restitution reflecting Overton's attorney fees because a portion of those fees was incurred to recover Overton's non-economic damages.
Section 1202.4 governs a trial court's authority to order a criminal defe
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