Wood v. McGovern

• Citation: 167 Cal.App.3d 772,213 Cal.Rptr. 498
• Parties: Bonnie L. WOOD, as Administratrix, etc., Plaintiff and Appellant, v. Andrew Kris McGOVERN, Defendant and Respondent. D001410.
• Decision Date: 01 May 1985
• Court: California Court of Appeals

Page 498

213 Cal.Rptr. 498

167 Cal.App.3d 772

Bonnie L. WOOD, as Administratrix, etc., Plaintiff and Appellant, v. Andrew Kris McGOVERN, Defendant and Respondent.

D001410.

Court of Appeal, Fourth District, Division 1, California.

May 1, 1985.

Luce, Forward, Hamilton & Scripps, Gerald S. Davee and Sallie A. Estep, San Diego, for plaintiff and appellant.

Demler & Armstrong, Edison J. Demler, Robert Armstrong and Emmet Thornton, Long Beach, for defendant and respondent.

BUTLER, Acting Presiding Justice.

Bonnie L. Wood, administratrix of the estate of her deceased son, Ronald David Wood, and her husband David Wood, ¹ Ronald's father (collectively the Woods) appeal an order denying them attorney's fees under Code of Civil Procedure section 1021.4. ² That section authorizes a court to award attorney's fees to a plaintiff who prevails in an action for damages against a defendant based upon that defendant's commission of a felony.

Andrew Kris McGovern was the drinking driver of a car in which his friend Ronald Wood was a passenger. The car went off the road, overturned and Ronald died of injuries sustained in the accident. Andrew pleaded guilty to a violation of Penal Code section 192.3, subdivision (a), ³ vehicular manslaughter, a felony. The parents then sued Andrew and recovered damages.

The accident happened before the effective dates of Proposition 8 and section 1021.4. The trial commenced after those effective dates. We shall hold section 1021.4 authorizes an award of attorney's fees in cases arising prior to its effective date, conclude the court failed to exercise its discretion under that section and reverse.

I

Proposition 8, the Victims' Bill of Rights, adopted by the people at the June 8, 1982 primary election, was effective the following day and added section 28 to article I of the California Constitution. Section 28, subdivision (b) ( § 28(b)) reads:

"Restitution. It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.

"Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section."

Responsive to the initiative, the Crime Victim Restitution Program of 1983 ⁴ called for legislative enactment of various measures to implement section 28(b). Section 1021.4 was added to the Code of Civil Procedure as a part of the Crime Victim Restitution Program to assist crime victims in obtaining restitution through civil actions:

"In an action for damages against a defendant based upon that defendant's commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney's fees to a prevailing plaintiff against the defendant who has been convicted of the felony." ⁵

Section 28, subdivision (a) of the California Constitution declares the intent of the people the enactment of comprehensive provisions and laws "ensuring a bill of rights for victims of crime" is a matter of grave statewide concern and then states in the second paragraph:

"The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance." (Emphasis added.)

Proposition 8 was designed to strengthen procedural and substantive safeguards for victims "in our criminal justice system." (Brosnahan v. Brown (1982) 32 Cal.3d 236, 247, 186 Cal.Rptr. 30, 651 P.2d 274.) The Woods contend section 1021.4 providing an award of attorney's fees is procedural and has retroactive application.

II

In the context of civil matters, statutory enactments providing for awards of attorney's fees made after the occurrence of an event and during the pendency of legal proceedings and appeals have been held to be applicable on various theories. Olson v. Hickman (1972) 25 Cal.App.3d 920, 922, 102 Cal.Rptr. 248, held Government Code section 800, effective March 4, 1972, authorizing attorney fee awards to a prevailing party appealing administrative determinations found to be arbitrary or capricious, applicable to proceedings initiated prior to March 4, 1972 and pending an appeal as of that date. The court characterized section 800 "as an ancillary provision, creating no new cause of action. It is procedural only. A lawsuit is governed by a change in procedural rules made during its pendency, and the suit is pending until its final determination on appeal." (Ibid.) Kievlan v. Dahlberg Electronics, Inc. (1978) 78 Cal.App.3d 951, 144 Cal.Rptr. 585, held section 1021.5 authorizing an award of attorney's fees in cases involving enforcement of important rights affecting the public interest, effective January 1, 1978, applicable to proceedings tried in August 1975. The court cited and quoted Olson and held section 1021.5 did not create a new cause of action, "it is ancillary to the underlying cause." (Id., at 959, 144 Cal.Rptr. 585.) Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 932, 154 Cal.Rptr. 503, 593 P.2d 200, refers to Olson and Kievlan as being within an established line of authority ⁶ and held section 1021.5 enacted after the trial in the case, applicable to proceedings then pending on appeal. The rule with respect to entitlement to attorney's fees in a wholly civil setting is clear. Attorney's fees in such setting may be awarded pursuant to entitling enactments so long as the enabling legislation was effective pending the finality of the proceedings.

III

We consider whether that rule is applicable in the circumstances here presented. People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, holds Proposition 8 applies only to prosecutions for crimes committed on or after its effective date. (Id., at p. 258, 193 Cal.Rptr. 692, 667 P.2d 149.) As Proposition 8 refers only to a single subject (Brosnahan v. Brown, supra, 32 Cal.3d 236 at p. 253, 186 Cal.Rptr. 30, 651 P.2d 274) and the section 28(a) legislative declarations of intent speak for the proposition as a whole (People v. Smith, supra, 34 Cal.3d 251 at p. 258, 193 Cal.Rptr. 692, 667 P.2d 149). Andrew contends provisions adopted by the Legislature responsive to section 28(b) mandate to implement that section are likewise prospective and may not be applied to causes of action arising before their effective dates.

A.

Proposition 8 is a composite of substantive and procedural provisions. (People v. Smith, supra, 34 Cal.3d 251 at p. 260, 193 Cal.Rptr. 692, 667 P.2d 149.) Smith held Proposition 8 applicable to prosecutions for crimes committed on or after its effective date for three reasons. First, as the electorate declared the purpose of Proposition 8 to be the deterrence of crime, the voters must have intended the measure to apply only to offenses that could be deterred (id., at pp. 258-259, 193 Cal.Rptr. 692, 667 P.2d 149). Second, if Proposition 8 were enacted to apply to crimes committed before its adoption, it might be ex post facto and violative of the California Constitution (art. I, § 9). (Id., at p. 259, 193 Cal.Rptr. 692, 667 P.2d 149.) Finally, so to construe Proposition 8 as prospective only avoids a number of "practical consequences adverse to the administration of justice and the right of fair trial." (Id., at p. 262, 193 Cal.Rptr. 692, 667 P.2d 149.)

Smith's ex post facto exposition (Id., at pp. 259-262, 193 Cal.Rptr. 692, 667 P.2d 149) illuminates difficulties perceived by the court in the characterization of Proposition 8 provisions as being "procedural" or "substantive." If the latter, ex post facto prohibitions are involved. If the former, the questioned provision would apply as to crimes committed prior to the effective date.

Referring to Brosnahan, the Smith exposition notes provisions which are clearly substantive and those which are clearly procedural:

"At the other end of the spectrum are provisions that are clearly procedural both in form and effect, and would not be ex post facto as to prior crimes. These include the clauses giving victims of crime a right to restitution ( § 3) and to appear at sentencing and parole hearings ( § 6), guaranteeing the 'right to safe schools' ( § 3), and requiring a prior felony conviction to be proved in open court when it is an element of a charged felony [citation]." (Smith, supra, at p. 261, 193 Cal.Rptr. 692, 667 P.2d 149.)

We do not end our inquiry with the pronouncement the clauses giving victims of crime a right to restitution are procedural and look further into Proposition 8.

B.

The Proposition 8 restitution rights afforded victims for the losses they suffer from the person convicted of crimes is the first of the two pillars upon which rests the Victims' Bill of Rights.

The preamble (Cal.Const., art. I, § 28, subd. (a)) recites the rights of victims pervade the criminal justice system. The first pillar encompasses: "... not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts" and the second pillar describes "... but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance."

Restitution rights are...