Jeffrey Capra vs Kevin Witherell

Case Number

23CV02161

Case Type

Hearing Date / Time

Fri, 10/11/2024 - 10:00

Nature of Proceedings

Petition to Covert Criminal Restitution to a Civil Judgment

Tentative Ruling

The petition of plaintiff to convert the criminal restitution order to a civil judgment is denied without prejudice.

Background:

This action commenced on May 18, 2023, by the filing of the complaint by plaintiff Jeffrey Capra against defendant Kevin Witherell for assault, battery, intentional infliction of emotional distress, and negligence.

As alleged in the complaint: On May 19, 2022, at 20 Winchester Canyon Road, Goleta, plaintiff was approached by defendant, who is taller and heavier than plaintiff, wherein an argument ensued, and defendant picked plaintiff up and dropped him to the floor causing injuries. (Complaint, ¶ 4.)

Defendant was served with the summons and complaint on July 7, 2023.

Defendant was served with a statement of damages on July 28, 2023.

Having received no answer to the complaint, plaintiff moved for default which was entered on August 29, 2023.

Defendant moved to set aside the default and default judgment, which was granted.

Defendant filed his answer to the complaint on April 12, 2024, asserting a general denial and several affirmative defenses.

On February 27, 2023, in Criminal Case No. 22CR03641, defendant pled guilty to violation of Penal Code section 243, subdivision (d), battery with serious bodily injury. (Pulverman Decl., ¶ 2 & Exh. A.)

On February 7, 2024, a restitution hearing was held in the criminal case which resulted in a criminal restitution order in the amount of $831,944.72. (Pulverman Decl., ¶¶ 6, 7 & Exhs. E, F.)

Plaintiff now petitions the court to convert the criminal restitution order to a civil judgment. The petition was timely served on defendant July 5, 2024.

Defendant has not filed opposition or any other responsive document to the petition.

Analysis:

“In any case in which a defendant is ordered to pay restitution, the order to pay restitution (1) is deemed a money judgment if the defendant was informed of his or her right to have a judicial determination of the amount and was provided with a hearing, waived a hearing, or stipulated to the amount of the restitution ordered, and (2) shall be fully enforceable by a victim as if the restitution order were a civil judgment, and enforceable in the same manner as is provided for the enforcement of any other money judgment. . . . A victim shall have access to all resources available under the law to enforce the restitution order, including, but not limited to, access to the defendant’s financial records, use of wage garnishment and lien procedures, information regarding the defendant’s assets, and the ability to apply for restitution from any fund established for the purpose of compensating victims in civil cases. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation, parole, postrelease community supervision under Section 3451, or mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 or after a term in custody pursuant to subparagraph (A) of paragraph (5) of subdivision (h) of Section 1170 is enforceable by the victim pursuant to this section. . . .” (Pen. Code, § 1214, subd. (b).)

“[S]ection 1214, subdivision (b) means what it says - a restitution order is equated to a civil money judgment as it relates to enforcement, including after a defendant’s probationary period ends.” (Nationwide Ins. Co. of America v. Tipton (2023) 91 Cal.App.5th 1355, 1361 (Nationwide).)

Nationwide unequivocally held that a criminal restitution order may be converted to a civil judgment.

However:

“A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) “A judgment constitutes the final determination of the parties’ rights “ ‘ “where no issue is left for future consideration except the fact of compliance or noncompliance with [its] terms. . . .’ ” [Citation.]’ [Citation.]” ” [Citation.]” (Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 384.)

“There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it was instituted, and finally determines the rights of the parties in relation to the matter in controversy.” (Vallera v. Vallera (1944) 64 Cal.App.2d 266, 270.)

“There may be, in some circumstances, judgments for or against one or more of several plaintiffs or defendants in a single case . . ., but there is always one judgment that determines the rights of any one particular party or parties [] vis a vis another party on the other side of the pleadings [].” (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 136.)

While Nationwide does not make clear the procedural history of that case, a review of the Respondent’s Brief on Appeal (2022 WL 16948582) shows that the plaintiff in Nationwide filed their petition to convert the restitution order into a civil judgment in a separate proceeding. (see “Procedural History,” subd. (A).)

While plaintiff may convert the criminal restitution order to a civil judgment, if he were to do so in this action it would result in more than one judgment, as between plaintiff and defendant, in the same case. Based on the authority above, and others, it would be impermissible to enter two separate judgments in the present action, as between plaintiff and defendant. Plaintiff will need to initiate a separate action and file the petition in that action in order to comply with the requirement that each action only result in one final judgment as between the parties.