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Civil Compromises Promote Justice

As a civil attorney, much of your practice involves privately resolving disputes. So when you receive a call for a misdemeanor, explore a dismissal through a Civil Compromise Motion under Penal Code §§ 1377 and 1378. (Caveat: By its own terms, this section doesn't apply if an offense was committed with intent to commit a felony.)

Penal Code §1377 states in relevant part: "when the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offer may be compromised..."

For example, if your client is charged with battery, petty theft, trespassing, or even hit-and-run per California Vehicle Code §20002(a), you should consider such a motion. So long as the offense meets the misdemeanor threshold, courts use a three part test to determine whether a dismissal via civil compromise is appropriate. The three critical questions are:

  1. Is the civil injury coextensive with the criminal violation?
  2. Does the private settlement vindicate the injury to the public?
  3. Is the victim's settlement agreement a completely voluntary one?

Civil Injury Coextensive with Criminal Violation

The first part of the test requires that the civil injury be coextensive with the criminal violation. In other words, the injury at issue must be particular to the victim, and not a "public offense." Certain crimes are viewed as wrongs against the state, or society at large.

This requirement has its roots in the common law felony merger doctrine. When a criminal offense overlapped with a civil wrong, the crown "stood in the shoes" of the victims and the criminal prosecution took priority over a civil cause of action. In modern law, the theory that "the public" is the victim of certain crimes persists. Though a criminal prosecution no longer precludes a civil settlement, an injured victim cannot simply settle away a criminal prosecution when the crime is seen as a threat to public safety, trust, or morals.

One court in People v. O'Rear (1963) 220 Cal. App. Supp. 2d 927 applied this principle to a hit-and-run case, reaching the conclusion that this requirement was not satisfied because "the gravamen of the offense…is the failure to stop," not the collision itself. The O'Rear court reviewed the history of the public offense doctrine, finding a number of examples of crimes "against public justice and dangerous to society." One example cited was bank embezzlement, in which the depositors at large were victims.

But there is a difference of opinion among California courts of appeals on this issue. People v. Tischman (1995) 35 Cal. App. 4th 174 focused on the legislative history, purpose, and policy of the hit-and-run statute. That court found that the purpose of the statute was to protect property and ensure that people were compensated for injuries.

Settlement Must Vindicate the Public Injury

The question of whether the settlement vindicates the public injury depends on whether the injury is primarily viewed as public or private. Sticking with the hit-and-run example, prosecutors will argue that the public was injured in two ways: (1) by the use of law enforcement resources to track down the defendant, and (2) the risk imposed on the public by these actions. They will argue that these harms cannot be compensated by a civil settlement.

On the other hand, under the view that the primary injury is to the actual victim, it is easy to see how a settlement is an adequate remedy.

Voluntary Settlement

The final prerequisite to a dismissal is that the settlement be voluntary on the part of the victim. This requires that the injured person appears before the court in which the action is pending at any time before trial, and acknowledges he received satisfaction for the injury. By requesting the personal presence of the victim in lieu of other evidence, the court is afforded the opportunity to assure itself that the settlement is complete and voluntary. People v. Moulton (1982) 131 Cal. App. 3rd Supp. 10, 23 .

If necessary, you should subpoena evidence or custodians to court to meet this element.

Recent Case Study

There is some evidence that the California courts are beginning to move away from the "public offense" paradigm and more towards encouraging the settlement of civil wrongs.

By way of a case study, I recently obtained a civil compromise dismissal in a California Vehicle Code §20002(a) hit-and-run "property damage" case. It was alleged the defendant hit a tow truck and fled. Upon investigation, it was discovered there was no proof of damage to the tow truck, which had since been salvaged. The custodian was subpoenaed into court to prove there was no damage. So, he was fully satisfied since the truck was ultimately salvaged due to age. The case was dismissed. This saved my client two DMV "points," a conviction, and a probation period, including criminal sanctions.

In that case, the court exercised its discretion and followed the reasoning of Tischman rather than O'Rear. Since a civil cause of action shared a common element with the criminal case. In other words, the court focused on the civil injury (the "hit), despite the claim of a criminal violation (the "run").

In balance, the court determined that law enforcement and court resources were best served by a dismissal. This in effect, served the need for efficient administration of justice by resolving relatively minor disputes without criminal prosecution.

Proposition 47 is another factor in this trend. Since its passage, the courts have seen an increase in low level felonies being filed as misdemeanors. Combined with "minor" dispute cases and its increasing caseload, the "public interest" is served in granting these motions.

Attorney tip: Investigate the facts and damages in advance of filing your motion. Only after the court approves the motion, pay the "victim" in order to avoid legal and ethical issues

----Richard L. Duquette, Esq.

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Author: Richard Duquette