Criminal Courts Must Address Restitution in Mass Victim Crimes

Antonio R. Sarabia II Feb. 1, 2023

Both class actions and large catastrophes have increased in recent years. Although global warming is linked to the increase in events such as storms and huge fires, responsible parties have also been identified. For example, Pacific Gas & Electric has been criminally charged in the 56,000 acre Zogg fire which occurred in September 2020. The most common tool to place financial responsibility for the harm caused by major catastrophes has been the civil class action. But there is a new route in California, victim restitution.

The case which broke the ice and brought restitution into mass events was Crump v. Appellate Division of Superior Court (2019) 37 Cal. App. 5th 222. Crump was based on the natural gas leak at Aliso Canyon, near Porter Ranch, in 2015. That leak affected thousands of people. The gas leak continued for months, causing damage to thousands of residents and led to a great deal of litigation. In addition to civil lawsuits, a misdemeanor criminal case was filed. Defendant Southern California Gas Company pleaded no contest to a charge of failure to immediately report the release of a hazardous material. No restitution was ordered. More than 7,000 petitioners sought to set aside the plea agreement and obtain restitution. These requests were rejected by the trial court and, at the first appellate level, by the Appellate Division of the Superior Court.

The case was appealed to the Court of Appeal. That court reached a different conclusion as to restitution. It remanded for a determination as to whether restitution based on the crime, a three-day delay in reporting the leak, was warranted. From one perspective the decision was very surprising. It was a misdemeanor case and the possible harm to the victims was very narrow. Because there was no probation, restitution could only be based upon the crime of which the Gas Company was convicted - a three-day delay in reporting. In other words, nearby residents who may have been harmed by months of toxic gas exposure, could not get restitution for that harm.

While the scope of the crime was narrow, the remand for a new restitution hearing was extremely significant. This holding established that, even in cases involving thousands of victims, criminal courts cannot defer restitution to civil actions - even when it is likely that restitution will be very low. This was the first reported California case to establish that the facts of parallel civil actions and a huge number of victims do not allow criminal courts to avoid victim restitution. The Court recognized that there may be many more of these large scale restitution cases ahead: “this was not the first environmental crime to be prosecuted by the district attorney, nor is it likely to be the last.” 37 Cal. App.5th 222, 250.

When Crump is considered from a broader perspective, its holding is not surprising. First, restitution has a central role in the criminal justice system. “[A] a restitution order is the consequence of a criminal conviction and therefore serves the state's interest in D:\CR\mass art.docx.doc 2 rehabilitating and deterring criminals.” Vigilant Ins. Co. v. Chiu (2009) 175 Cal. App.4th 438, 445. A civil award in the same amount to the same victims does not achieve this key purpose.

Second, there is a state policy of not giving a civil right priority over a criminal right. “When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other". Code of Civil Procedure §32. Purposes of a criminal action cannot be subsumed because of an alternate civil remedy.

Third, crime victims have a California Constitutional right to victim restitution. Cal. Const. Art. I, §28(b)(13). This is a powerful right. A waiver of this right, because of the participation of a victim in a civil case, cannot be implied.

Fourth, a sentence without victim restitution is invalid. People v Rowland (1997) 51 Cal App.4th 1745, 1751. If a victim is eligible for restitution, it must be ordered.

Now that Crump has opened the door to mass victim restitution, civil class action counsel should consider the major impact this may have on case strategy. While a victim may not recover twice for the same loss, civil damages and restitution are not the same. For example, a plaintiff in a civil suit can recover damages for emotional distress, but a crime victim many not receive restitution for emotional distress. But the recovery in the different courts may be complimentary. If a plaintiff, or class of plaintiffs, must pay a contingent fee in connection with a civil settlement or judgment, it may be possible for the plaintiff or class to recover that contingent fee as restitution. This may dramatically increase the value of the case for a class.