Jeffrey Capra et al vs Kevin Witherell et al

Case Number

23CV02161

Case Type

Hearing Date / Time

Fri, 07/18/2025 - 10:00

Nature of Proceedings

CMC; Motion for Entry of a Single Judgment

Tentative Ruling

(1) Plaintiff Jeffrey Capra’s motion for an order that the judgment in case number 24CV07083 (People v. Witherell) be consolidated into a single judgment with case number 23CV02161 (Capra v. Witherell) is denied.  

(2) The Court’s earlier order, dated February 24, 2025, consolidating case numbers 23CV02161 and 24CV07083 is vacated. The two cases, however, shall be deemed related.

Background:

Plaintiff Jeffrey Capra filed his personal injury action (Capra v. Witherell, case number 23CV02161) (the personal injury action) on May 18, 2023. He asserts claims for assault, battery, intentional infliction of emotional distress, and negligence against defendant Kevin Witherell. Plaintiff’s summary of facts, as set forth in his instant motion seeking a single judgment, states that on May 19, 2022, defendant entered the gas station and convenience store where plaintiff worked and demanded beer. Plaintiff was in the process of closing the store and could not re-open the cash register. Defendant then became agitated and knocked plaintiff to the ground, causing plaintiff to suffer a hip fracture. Plaintiff underwent emergency surgery and later received a bone-growth drug to which he had an adverse reaction. This caused plaintiff to suffer damage to his kidneys, resulting in further hospitalizations and ultimately a kidney transplant. (Motion, p. 5.)

In the related criminal case (People v. Witherell, case number 22CR03641) (the criminal action), defendant pled guilty to violating Penal Code section 243, subdivision (d) (battery with serious bodily injury) and was ordered to pay $831,944.72 in restitution. (Ex. A to Motion [Restitution Order, dated Mar. 21, 2024].)

Upon receiving the restitution order, plaintiff petitioned the Court in the personal injury action to convert the criminal restitution order to a civil judgment. The petition was denied without prejudice, the Court finding:

“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.” (Ex. E to Motion [Order after Hearing, dated Oct. 14, 2024].)

Thereafter, an abstract of judgment, bearing both the case number in the criminal action and a new case number relating to a third action involving the same parties and events and bearing case number 24CV07083 (the enforcement of judgment [EOJ] action) was issued. (Ex. F to Motion [Abstract of Judgment--Restitution].) The Court, based upon the parties’ stipulation, subsequently ordered the personal injury and EOJ actions consolidated for all purposes on February 24, 2025.  (Ex. F to Motion [Stipulation to Consolidate the Two Related Civil Actions].)

Plaintiff now requests that the Court “order the judgment in [the EOJ action] be consolidated into a single judgment with [the personal injury action].” (Motion, p. 10.)

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

Analysis:

(1)       Plaintiff’s Request for Judicial Notice

Plaintiff requests that the Court take judicial of (1) the Order for Victim Restitution, filed December 9, 2024, which bears both the criminal and EOJ case numbers, and (2) the Abstract of Judgment—Restitution, issued on December 17, 2024, which also bears both the criminal and EOJ case numbers.   

The Court finds that the items are proper subjects for judicial notice and relevant to the issues raised in plaintiff’s motion. The Court therefore grants the request. (Ev. Code, § 452, subd. (d)(1); Malek Media Group LLC v. AXQG Corporation (2020) 58 Cal.App.4th 817, 825 [any matter to be judicially noticed must be relevant to a material issue].)

(2)       Plaintiff’s Motion for a Single Judgment

Plaintiff brings his motion pursuant to Code of Civil Procedure section 1048, subdivision (a), and Penal Code section 1214, subdivision (b). The former provides: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

Meanwhile, subdivision (b) of Penal Code section 1214 states, in pertinent part:

“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.”

Neither provision warrants the type of an order which plaintiff seeks here. Plaintiff does not cite, and the Court is unaware of, any authority which allows for a separate and existing judgment in one case to be consolidated with or merged into a single judgment with a judgment in another case. In addition, while pending cases may be consolidated for all purposes such that there will be single judgment (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147), an abstract of judgment, based upon the restitution order from the criminal action, already exists in the EOJ action. The EOJ case may therefore not be deemed as pending any more, and therefore not properly consolidated with the personal injury action. (Code Civ. Proc., § 1049 [“action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed”].)

Further, where cases are ordered consolidated for all purposes, the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment. (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.) The actions are viewed as if the same plaintiff or plaintiffs had filed a single complaint on joined causes of action against the same defendant or defendants. (Ibid.) Thus, if the Court were to grant plaintiff’s instant motion, and order that the judgment in the EOJ action be consolidated into a single judgment in the personal injury action, this would likely signal the end of the personal injury action with plaintiff foregoing the right to seek additional remedies available to him which are not available under the restitution order and abstract of judgment.

Indeed, an order of restitution pursuant to Penal Code section 1202.4 does not preclude the crime victim from pursing a separate civil action based on the same facts from which the criminal conviction arose. (Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438, 442—443.) A restitution order is also enforceable as if it were a civil judgment, but it is not a civil judgment since it does not resolve civil liability. (Id., at pp. 444—445.) A restitution order reimburses the crime victim only for economic losses, not noneconomic losses such as pain and suffering, which are recoverable in a civil action. (Id. at p. 445.)

 

A restitution order therefore does not fully replicate a civil judgment. Nor does the judgment obtained in a civil action completely satisfy the purpose of an order of restitution entered in a criminal case. In addition to compensating the victim, a restitution order is intended to rehabilitate the defendant and to deter the defendant and others from future crimes. (People v. Crow (1993) 6 Cal.4th 952, 957.) “A victim’s right to sue a defendant for tortious conduct amounting to a crime and the state’s right to impose a restitution order on a criminally convicted defendant are independent of one another.” (Vigilant Ins. Co. v. Chiu, supra, 175 Cal.App.4th at p. 445.)

There can, however, be no duplicate recovery. Any restitution “shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted.” (Pen. Code, § 1202.4, subd. (j).) Similarly, any payments made on the civil judgment must be credited against the restitution order, except to the extent that it includes post-judgment interest, pre-judgment interest accruing between the date of the restitution order and the judgment, and costs. (Vigilant Insurance Co., supra, 175 Cal.App.3d at p. 446.) In order to avoid unlawful duplicative recovery, a court can offset payments made on a civil judgment against the restitution order. (See People v. Short (2008) 160 Cal.App.4th 899, 903.)

In this case, plaintiff’s rights and remedies as they relate to the restitution order and abstract of judgment in the criminal and EOJ actions are independent of any civil judgment which plaintiff might obtain in his personal injury action and complete consolidation does not appear to be appropriate. As such, the Court hereby vacates its earlier order consolidating the personal injury and EOJ actions for all purposes.  (Paul Blanco’s Good Car Co. Auto Group v Superior Court (2020) 56 Cal.App.5th 86, 97 [courts have inherent authority to reconsider, vacate, or modify their interim rulings].) The two cases shall, however, be deemed related. This will allow plaintiff to continue to pursue his personal injury action while also being able to seek relief pursuant to the restitution order and abstract of judgment in the criminal and EOJ actions.