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People v. Fulton6/12/2003
e result in terms of public policy in the absence of proof of the particular fact . . . ." (Cal. Law Revision Com. com., 29B West's Ann. Evid. Code (1995 ed.) foll. § 500, p. 554; Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1193.) Here, public policy supports a conclusion that the burden of apportionment must be on the defendant. The policy of fully reimbursing the victim would be defeated if the victim could lose an attorney fees award because the nature of the case precludes application of a reasonable formula for apportionment between the two types of losses. Accordingly, once evidence is presented showing reasonable fees were incurred seeking recovery for economic losses, the burden of apportionment is properly placed on the defendant.
Applying these principles here, it is undisputed Overton suffered economic losses (i.e., property damage, past medical expenses, lost wages, and anticipated future medical expenses and wage losses) as a result of Fulton's criminal conduct and that he incurred attorney fees to recover these losses. In connection with the restitution hearing, Overton presented evidence showing he suffered economic damages of at least $25,898, and that his attorney expended time, the reasonable value of which was $26,125, in negotiating the settlement of his case. This was a sufficient prima facie showing of reasonable fees incurred to recover economic losses, thus shifting the burden to show apportionment.
In the trial court and on appeal, Fulton has suggested only one possible method for apportioning the attorney fees. He submits that the restitution should be limited to 25 percent of $13,307.35, the amount of the economic damages and related litigation costs that Fulton claims Overton suffered. However, as discussed above, the evidence supports that Overton's economic damages were much greater than this amount. Further, as the trial court recognized, it is not reasonable in this case 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 non-economic damages. Rather, as is typical in automobile accident cases, an attorney's efforts necessarily focus on proving liability and the nature and extent of the plaintiff's economic damages, with the amount of non-economic damages dependent on substantiating these issues. Although liability was not an issue, Overton's damages were vigorously disputed, a reality which increased the attorney resources required to establish Overton's economic losses. Also, it is common for attorney services expended in obtaining the two types of damages to overlap and for the recovery of the non-economic damages to be dependent on the attorney's time and effort proving the victim's economic damages. Such was the case here.
Further, it is unnecessary to remand this case to determine whether there is any possible basis for apportionment. Although the trial court erroneously concluded the statute does not permit an apportionment, we are satisfied the court also rejected Fulton's apportionment argument on a factual basis. This implied finding is supported by substantial evidence.
The record shows that the trial judge was aware of the nature and extent of Overton's economic losses, understood the civil case would not settle until Savaglio convinced Wawanesa of these losses, and knew that the non-economic damages would be easily established once the parties agreed upon the economic damages. The court further recognized that the attorney fees reflected Savaglio's efforts primarily in proving the validity of Overton's economic damages, which were so inextricably associated with his non-economic damages that it would be impossible to attribu
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