Walker v. Appellate Division of the Superior Court etc. ( 2017 )


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  •  Filed 8/22/17
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    MICHAEL KERR WALKER,                   No. B280100
    Petitioner,                     (App. Div. No. BR052772 &
    Super. Ct. No. 5WA25326)
    v.
    APPELLATE DIVISION OF THE
    SUPERIOR COURT OF LOS
    ANGELES COUNTY,
    Respondent;
    THE PEOPLE,
    Real Party in Interest.
    ORIGINAL PROCEEDINGS; petition for writ of
    mandate. Patti Jo McKay, Alex A. Ricciardulli, and Barbara
    R. Johnson, Judges. Petition granted in part and denied in
    part.
    Kelly G. Emling, Chief Deputy Public Defender, Albert
    J. Menaster, Nick Stewart-Oaten, Deputy Public Defenders,
    for Petitioner.
    No appearance for Respondent.
    Joseph Lawrence, Interim City Attorney, Yibin Shen,
    Chief Deputy City Attorney, Melanie Skehar, Deputy City
    Attorney, for Real Party in Interest.
    _________________________
    Petitioner Michael Kerr Walker entered a plea of no
    contest to a misdemeanor count of contracting without a
    license. (Bus. & Prof. Code, § 7028, subd. (a).)1 As a
    condition of probation, the trial court ordered Walker to pay
    restitution for the actual economic loss suffered by the
    victim, but denied the People’s request to require Walker to
    make full restitution of all payments he received for his
    construction services and attorney fees incurred by the
    victim. On appeal by the People, the Appellate Division of
    the Superior Court of Los Angeles County reversed in a
    published opinion, holding that the victim was entitled to
    restitution for the full amount she paid to Walker, plus
    interest, as well as her attorney fees. In his petition for writ
    of mandate, Walker contends the Appellate Division erred in
    requiring criminal restitution in a manner intended to apply
    to civil actions, and by ordering restitution of attorney fees
    in an amount not proven by substantial evidence. We
    1Undesignated statutory references are to the
    Business and Professions Code.
    2
    conclude that the civil disgorgement statute relied on by the
    Appellate Division does not control the amount of restitution
    in a criminal action. We further conclude that the Appellate
    Division did not err in ordering restitution of Curto’s
    attorney fees. We therefore grant the mandate petition in
    part and deny in part.
    FACTUAL AND PROCEDURAL HISTORY
    In August 2013, Sharon Curto entered into a written
    construction contract with Walker, an unlicensed contractor,
    to paint her home and to install 10 new windows. The
    original contract price was for $49,860. As the work
    progressed, additional work was added to the project and
    additional invoices were issued by Walker. On November
    30, 2013, Walker sent Curto a demand letter stating she
    owed him $9,851. At that point, Curto had paid Walker a
    total of $61,428. Curto subsequently paid Walker $2,000
    against the $9,851 balance. Walker initiated a lawsuit
    against Curto for nonpayment of the full amount due. Curto
    hired an attorney to defend her in the lawsuit.2 Curto filed a
    complaint against Walker with the California Department of
    Consumer Affairs Contractors State License Board (Board).
    During the investigation, the Board discovered Walker was
    not a licensed contractor and referred the matter to the
    Santa Monica City Attorney for criminal prosecution.
    2 Walker’s complaint and the related proceedings are
    not provided in the record.
    3
    On November 4, 2015, Walker entered his plea of no
    contest to a violation of section 7028, subdivision (a). The
    court suspended imposition of sentence, and placed Walker
    on summary probation for two years. The court set a
    hearing to determine the amount of restitution Walker
    would be ordered to pay Curto as a condition of his
    probation.
    The trial court conducted an extensive restitution
    hearing over the course of four days, which included briefing
    by both parties. The People’s brief requested the court order
    Walker to pay Curto the entire amount she had paid him for
    his work, plus interest, and attorney fees incurred in the
    civil action. Later, the People increased the restitution
    request to include the cost for Curto to install one and a half
    windows that were not installed by Walker, and to repair
    and repaint her house.
    The trial court denied the People’s request for a full
    refund of Curto’s payments to Walker. The court further
    denied Curto attorney fees incurred in the civil action.
    However, the court allowed the People to establish the actual
    economic loss suffered by Curto. Curto testified that
    Walker’s work was substandard because the paint was
    fading, chipping, bubbling, and peeling. In December 2015,
    Curto obtained an estimate of $15,800 to repair and repaint
    her house. Curto further testified that Walker did not
    complete the window installation, as he only replaced eight
    and a half out of the ten windows. Curto obtained an
    estimate from the Board suggesting that it will cost at least
    4
    $625 to complete the window installation. Sylvester Egan, a
    licensed contractor and expert witness for the defense,
    testified that constant maintenance is required on all paint
    jobs due to a house’s natural weathering.
    The trial court ordered Walker to pay restitution in the
    amount of $1,299. This figure consisted of $1,250 for the
    installation of the one and a half windows, covering the cost
    of labor and materials. The court accepted as reasonable
    Curto’s $15,800 repair and repainting estimate, but found a
    substantial portion was necessitated by normal weathering
    rather than Walker’s substandard performance. Therefore,
    the court discounted this amount by one-half ($7,900). The
    court then subtracted $9,150 ($7,900 for the paint repair
    plus $1,250 for the windows) from the amount that was
    unpaid to Walker ($9,150 minus $7,851), which left a
    balance of $1,299 in economic loss.
    The People filed a Notice of Appeal from the trial
    court’s restitution order. On November 16, 2016, the
    Appellate Division reversed the restitution order in a
    published decision. (People v. Walker (2016) 6 Cal.App.5th
    Supp. 38.) The Appellate Division held the trial court
    abused its discretion in not ordering full restitution for all
    compensation Curto paid to Walker, plus interest, as well as
    not ordering attorney fees incurred in the civil action. (Id. at
    pp. 43-46.) In reaching its decision, the Appellate Division
    relied on section 7031, which provides that an unlicensed
    contractor cannot not sue for payment of his unlicensed
    work, and the homeowner has the right to bring a civil
    5
    action to recover all sums paid to him. (Id. at p. 43.) The
    Appellate Division recognized that section 7031 is not
    directly applicable in a criminal case, however, “the impact
    of the statute means, in practical terms, that the homeowner
    parted with her money in a situation where she did not have
    to do so. Thus, even if the work performed by [Walker]
    bestowed a benefit to the homeowner, she nonetheless
    incurred an economic loss for purposes of her constitutional
    and statutory right to restitution (see Cal. Const. art. I, § 28,
    subd. (a), Pen. Code, § 1202.4, subd. (a)(1)) in the amount of
    all monies paid to him for his unlicensed work. In addition,
    [Curto] was entitled to restitution of attorney fees incurred
    in defending against [Walker’s] civil action for unpaid
    compensation and in prosecuting her counterclaim to recover
    the money she paid [Walker] under the contract. (See Pen.
    Code, § 1202.4, subd. (f)(3)(H).)” (Id. at p. 40.) On December
    5, 2016, Walker’s petition for rehearing was denied.
    On December 20, 2016, this court declined to exercise
    its authority to transfer jurisdiction of the matter to this
    court. On February 3, 2017, we summarily denied Walker’s
    petition for writ of mandate. On March 29, 2017, the
    California Supreme Court granted Walker’s petition for
    review and transferred the matter back to this court, with
    directions to vacate our February 3, 2017 order and direct
    the respondent to show cause why relief sought in the
    petition should not be granted. We complied with the orders
    from the Supreme Court by vacating our order denying the
    petition for writ of mandate and issuing the order to show
    6
    cause as directed. We now proceed to consider the merits of
    the petition.
    DISCUSSION
    “Restitution is constitutionally and statutorily
    mandated in California.” (People v. Keichler (2005) 
    129 Cal. App. 4th 1039
    , 1045 (Keichler); see Cal. Const., art. 1,
    § 28; Pen. Code, § 1202.4.) Penal Code section 1202.4,
    subdivision (f) provides for a direct restitution order “in
    every case in which a victim has suffered economic loss as a
    result of the defendant’s conduct.” “The order is to be for an
    amount ‘sufficient to fully reimburse the victim or victims for
    every determined economic loss incurred as the result of the
    defendant’s criminal conduct.’ (Id., § 1202.4, subd. (f)(3).)”
    (People v. Brasure (2008) 
    42 Cal. 4th 1037
    , 1074-1075.) A
    person who utilizes the services of a convicted unlicensed
    contractor is eligible for restitution for economic losses (Pen.
    Code, § 1202.4, subd. (f)), regardless of whether he or she
    had knowledge that the contractor was unlicensed. (§ 7028,
    subd. (h).)
    “‘The standard of review of a restitution order is abuse
    of discretion. “A victim’s restitution right is to be broadly
    and liberally construed.” [Citation.] “‘When there is a
    factual and rational basis for the amount of restitution
    ordered by the trial court, no abuse of discretion will be
    found by the reviewing court.’” [Citations.]’ [Citation.]”
    (People v. Baker (2005) 
    126 Cal. App. 4th 463
    , 467.) “In
    7
    reviewing the sufficiency of the evidence, the ‘“power of the
    appellate court begins and ends with a determination as to
    whether there is any substantial evidence, contradicted or
    uncontradicted,” to support the trial court’s findings.’
    [Citations.] Further, the standard of proof at a restitution
    hearing is by a preponderance of the evidence, not proof
    beyond a reasonable doubt. [Citation.]” (Id. at pp. 468-469.)
    The trial court “‘“must use a rational method that could
    reasonably be said to make the victim whole, and may not
    make an order which is arbitrary or capricious.”’ [Citation.]”
    
    (Keichler, supra
    , 129 Cal.App.4th at p. 1045.)
    The Appellate Division erred in holding that the trial
    court abused its discretion, as there was a factual and
    rational basis for the restitution order. The plain language
    of Penal Code section 1202.4 limits the trial court’s
    restitution order to actual economic losses suffered by the
    victim in the circumstances of this case. (Pen. Code,
    § 1202.4, subd. (f)(3)(A) [restitution order should be “the
    actual cost of repairing the property when repair is
    possible”].) The restitution order is not intended to provide
    the victim with a windfall; instead, a victim is entitled to
    reimbursement only for his or her actual loss. (People v.
    Millard (2009) 
    175 Cal. App. 4th 7
    , 28; People v. Fortune
    (2005) 
    129 Cal. App. 4th 790
    , 794-795.) There is no
    requirement the restitution order “reflect the amount of
    damages that might be recoverable in a civil action.” (People
    v. Carbajal (1995) 
    10 Cal. 4th 1114
    , 1121; see People v.
    Chappelone (2010) 
    183 Cal. App. 4th 1159
    , 1173.) Here, the
    8
    trial court’s restitution order provided for Curto’s actual
    economic loss, which was determined to be the cost of
    installing the remaining windows and repainting her house,
    adjusted by the full amount she still owed to Walker for his
    services. Under the plain language and meaning of Penal
    Code section 1202.4, subdivision (f), a restitution order
    limiting recovery to the victim’s actual economic losses was
    well within the discretion of the trial court.
    The Appellate Division’s reliance on section 7031 to
    support full recovery was misplaced. As the Appellate
    Division acknowledged, the plain language of Business and
    Professions section 7031 restricts the statute to civil
    proceedings. (§ 7031, subd. (b) [“a person who utilizes the
    services of an unlicensed contractor may bring an action in
    any court of competent jurisdiction in this state to recover all
    compensation paid to the unlicensed contractor for
    performance of any act or contract”].)
    Contrary to the Appellate Division’s analysis, the
    Legislature did not intend section 7031 to define the amount
    of criminal restitution under section 7028. In 2009, the
    Legislature passed Assembly Bill No. 370, which added
    subdivision (h) to section 7028. (Stats. 2009, ch. 319, § 1.)
    Subdivision (h) currently provides: “For any conviction
    under this section, a person who utilized the services of the
    unlicensed person is a victim of a crime and is eligible,
    pursuant to subdivision (f) of Section 1202.4 of the Penal
    Code, for restitution for economic losses, regardless of
    whether he or she had knowledge that the person was
    9
    unlicensed.” Assembly Bill No. 370 does not indicate that
    the Legislature contemplated that section 7031 would apply
    to fix the amount of restitution in criminal cases. To the
    contrary, the Legislature declared that “[c]urrent law states
    that a person who uses an unlicensed contractor may bring a
    civil action to recover all compensation paid to the
    unlicensed contractor. However, no statute specifically
    addresses the issue of criminal restitution for victims of
    unlicensed contractors.” (Assem. Com. on Bus. and Prof.,
    Analysis of Assem. Bill No. 370 (2009-2010 Reg. Sess.) Mar.
    31, 2009, p. 2.) “Consumers who intentionally hire an
    unlicensed contractor can already receive all the payments
    made to the unlicensed contractor through the civil courts
    (Business and Professions Code Section 7031(b)). This bill is
    mainly targeted at helping consumers who have few
    resources and little understanding of the process (filing civil
    cases, checking whether a contractor is licensed or not, etc.)
    and making it easier for [consumers] to receive
    compensation for only their economic losses. This bill would
    also make gaining restitution from an unlicensed contractor
    in criminal courts more consistent with existing law
    regarding restitution in civil courts.” (Dept. Consumer
    Affairs, Enrolled Bill Rep. on Assem. Bill No. 370 (2009-2010
    Reg. Sess.) June 29, 2009, p. 4, italics added.) The sponsor of
    Assembly Bill No. 370, Los Angeles City Attorney Rocky
    Delgadillo, specifically stated that section 7031 only applies
    to a civil action and emphasized the need for a criminal
    counterpart. (Sen. Com. on Business, Professions and
    10
    Economic Development, Analysis of Assem. Bill No. 370
    (2009-2010 Reg. Sess.) June 8, 2009, p. 3 [“Business and
    Professions Code 7031(b) states that a person who uses an
    unlicensed contractor may bring a civil action to recover all
    compensation paid to the unlicensed contractor. However,
    no statute specifically addresses the issue of criminal
    restitution for victims of unlicensed contractors”].)
    Delgadillo’s successor, Carmen A. Trutanich, wrote a letter
    to Governor Arnold Schwarzenegger on September 23, 2009,
    urging him to sign Assembly Bill No. 370. Trutanich stated,
    “Presently, our civil laws (§ 7031(b)) specifically mandate
    that unlicensed contractors disgorge all monies paid by their
    victims (more than just economic loss) . . . . However, our
    current criminal laws do not clearly require unlicensed
    contractors to pay restitution for even the economic loss.”
    (City Attorney Carmen A. Trutanich, letter to Governor
    Arnold Schwarzenegger re Assem. Bill No. 370 (2009-2010
    Reg. Sess.) Sept. 23, 2009, Governor’s chaptered bill files, ch.
    319.) City Attorney Trutanich concluded, “This bill provides
    victims with restitution, limited to economic loss, should
    they hire an unscrupulous unlicensed contractor who
    performs poor shoddy workmanship.” (Ibid.)
    Under the statutory scheme, the civil remedy of
    refunding “all compensation paid” is intended to deter
    unlicensed contractors by depriving them of all monetary
    benefit (§ 7031, subd.(b)). The restitution statute, in
    contrast, serves primarily to compensate victims for actual
    economic losses. Unlike section 7031, section 1202.4 of the
    11
    Penal Code does not provide for a full refund of all payments
    to an unlicensed contractor. A victim who is made whole for
    economic losses under Penal Code section 1202.4 remains
    able to pursue the civil law remedy of a full refund. (People
    v. Vasquez (2010) 
    190 Cal. App. 4th 1126
    , 1132 [“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”].) We conclude that the trial court acted
    within its discretion in ordering restitution for the actual
    economic loss suffered by Curto. Therefore, the decision in
    People v. Walker (2016) 6 Cal.App.5th Supp. 38, is
    disapproved to the extent it relied on the civil disgorgement
    statute to impose criminal restitution.
    Attorney Fees
    Contrary to Walker’s contention, the Appellate
    Division did not err in holding the trial court abused its
    discretion in failing to order Curto attorney fees. At trial,
    the People sought restitution for Curto’s attorney fees
    incurred in the civil action, totaling to $6,526.63. The People
    argued Curto had to hire an attorney to recover her economic
    loss and prevent further economic losses “stemming from
    [Walker’s] unlicensed and unlawful activities.” The People
    attached to their brief what appears to be an email from
    Curto’s counsel stating the amount of attorney fees expended
    in the civil case. (People v. 
    Millard, supra
    , 
    175 Cal. App. 4th 12
    at p. 26 [“a prima facie case for restitution is made by the
    People based in part on a victim’s testimony on, or other
    claim or statement of, the amount of his or her economic
    loss”]; People v. Gemelli (2008) 
    161 Cal. App. 4th 1539
    ,
    1542-1543 [Penal Code “[s]ection 1202.4 does not, by its
    terms, require any particular kind of proof].)
    Penal Code section 1202.4, subdivision (f)(3)(H)
    provides that economic loss for the purposes of victim
    restitution includes “[a]ctual and reasonable attorney’s fees
    and other costs of collection accrued by a private entity on
    behalf of the victim.” Reasonable attorney fees incurred by
    the victim are recoverable as an item of restitution only to
    the extent that they were incurred in efforts to recover
    economic damages sustained by the victim as a result of the
    criminal conduct. (People v. Fulton (2003) 
    109 Cal. App. 4th 876
    , 879, 884-885.) Walker initiated the civil action,
    erroneously because he was not a licensed contractor, to
    recover the remaining balance on the contract. Curto
    retained counsel for the purpose of recovering her economic
    loss and prevent further economic loss “stemming from
    [Walker’s] unlicensed and unlawful activities.” The evidence
    is undisputed Curto incurred attorney fees due to Walker’s
    ill-conceived action. Therefore, the Appellate Division did
    not err in holding that the trial court abused its discretion in
    failing to award Curto restitution for attorney fees incurred
    in efforts to recover her economic damages as a result of
    Walker’s work as an unlicensed contractor.
    13
    DISPOSITION
    Let a peremptory writ of mandate issue directing the
    Appellate Division of the Superior Court of Los Angeles
    County to vacate its prior opinion and issue a new opinion
    affirming the trial court’s restitution order as to the victim’s
    actual economic losses, but reversing the trial court’s
    restitution order as to the victim’s attorney fees.
    KRIEGLER, Acting P. J.
    I concur:
    DUNNING, J.3
     Judge of the Orange Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the
    California Constitution.
    14
    Michael Kerr Walker v. The Appellate Division of the
    Superior Court of Los Angeles County
    B280100
    BAKER, J., Concurring in Part and Dissenting in Part
    Business and Professions Code section 7028 provides
    that a victim who uses the services of a person convicted of
    operating as an unlicensed contractor “is eligible, pursuant
    to subdivision (f) of Section 1202.4 of the Penal Code, for
    restitution for economic losses, regardless of whether he or
    she had knowledge that the person was unlicensed.” (Bus. &
    Prof. Code, § 7028, subd. (h), emphasis added.) Another
    provision of the Business and Professions Code, section 7031,
    states that “a person who utilizes the services of an
    unlicensed contractor may bring an action in any court of
    competent jurisdiction in this state to recover all
    compensation paid to the unlicensed contractor for
    performance of any act or contract.” (Bus. & Prof. Code,
    § 7031, subd. (b), emphasis added.) Defendant Michael
    Walker (defendant) sustained a conviction for acting in the
    capacity of a contractor without a license, and the People
    attempted to recover the full amount his victim, Sharon
    Curto (Curto), paid him as restitution under Business and
    Professions Code section 7028—Curto did not then bring a
    separate civil action as authorized by Business and
    Professions Code section 7031. For reasons I will explain, I
    believe the issue of whether the trial court’s restitution
    award was proper turns less on a question of statutory
    interpretation and more on the question of whether the trial
    court’s restitution calculation was an abuse of its discretion.
    Although the Legislature’s statutory scheme invites
    needless civil litigation, I agree with the majority that
    Business and Professions Code section 7031 cannot be used
    to interpret the applicable criminal restitution statutes so as
    to require an unlicensed contractor to make restitution in
    the amount of all payments the contractor received.1 But
    concluding Business and Professions Code section 7031 is
    not a reliable interpretive guide still leaves another
    1  I do concede, though, that there are elements in the
    legislative history of Business and Professions Code section
    7028, subdivision (h) that can be read to point to a contrary
    conclusion. The Enrolled Bill Report cited by the majority,
    for instance, states: “This bill . . . defines people who use
    unlicensed contractors, knowingly or not, as victims in order
    to allow these people to receive restitution for their losses
    through the criminal courts rather than having to spend
    their own time and money to file their own case in the civil
    courts against the unlicensed contractor.” (Dept. of
    Consumer Affairs, Enrolled Bill Rep. on Assem. Bill No. 370
    (2009-2010 Reg. Sess.) June 29, 2009, p. 1.) The same report
    also states: “This bill would also make gaining restitution
    from an unlicensed contractor in criminal courts more
    consistent with existing law regarding restitution in civil
    courts.” (Id. at p. 4.)
    2
    question—I submit, the key question—unresolved: what is
    the “loss” that is appropriately compensable by restitution?
    Defendant argues the issue by repeatedly treating
    Business and Professions Code section 7028, and the cross-
    referenced provision of the Penal Code, as if they authorize
    restitution for only “actual losses.” Of course, that
    disregards the term the statutes actually use: “economic
    loss(es).” (Bus. & Prof. Code, § 7028, subd. (h); Pen. Code,
    § 1202.4, subd. (f).) The distinction is important. A
    reference to actual loss would more strongly suggest that, in
    an unlicensed contracting case, the pertinent “loss” should
    be calculated as the difference between the quality and value
    of work performed by an unlicensed contractor as compared
    to the quality and value of the work if it were done by a
    contractor with a license.2 The references to economic loss
    that appear in the statute, however, are best read as a
    qualifier to distinguish monetary or financial losses (which
    are compensable) from compensation for psychological or
    other noneconomic harm (which, with exceptions, are not).
    (Compare, e.g., Pen. Code, § 1202.4, subd. (f) [“[I]n every case
    in which a victim has suffered economic loss as a result of
    the defendant’s conduct, the court shall require that the
    2  I do not believe this is a case of “stolen or damaged
    property,” which would trigger the Penal Code section 1202.4
    provision that limits restitution to “the replacement cost of
    like property, or the actual cost of repairing the property
    when repair is possible.” (Pen. Code, § 1202.4, subd.
    (f)(3)(A).)
    3
    defendant make restitution to the victim or victims in an
    amount established by court order, based on the amount of
    loss claimed by the victim or victims or any other showing to
    the court”] with Pen. Code, § 1202.4, subd. (f)(3)(F) [for
    felony violations of Penal Code section 288, a court should
    order restitution for “[n]oneconomic losses, including, but not
    limited to, psychological harm”].)3
    By using the malleable term “economic loss,” I believe
    the statutes give trial courts significant discretion to
    determine what in fact constitutes the “loss” in an
    unlicensed contractor case. (People v. Giordano (2007) 
    42 Cal. 4th 644
    , 663 [trial courts have broad discretion to choose
    a method for calculating the amount of restitution].) On a
    strong enough record, likely necessitating expert testimony,
    I believe a trial court could order restitution of nearly all (or
    perhaps even all) payments made to a convicted unlicensed
    contractor without transgressing the limits of that
    discretion. We have no such record in this case, and that is
    partly why I conclude the result reached by the appellate
    division cannot stand. Having said that, I am nevertheless
    of the view that the manner in which the trial court
    3    I leave for another day the task of unraveling how
    Penal Code section 1202.4 can authorize restitution for
    “every determined economic loss incurred as the result of the
    defendant’s criminal conduct, including, but not limited
    to . . . [¶] . . . [¶] Noneconomic losses . . . .” (Pen. Code,
    § 1202.4, subd. (f)(3).)
    4
    calculated the restitution award here was an abuse of the
    court’s discretion.
    The trial court’s restitution award was partly founded
    on the price of the contract victim Curto entered into with
    defendant. Specifically, the court took the remaining
    balance Curto had not paid on that contract ($7,851) and
    subtracted that amount from the court’s estimate of what it
    would cost to fix the house renovation defects attributable to
    defendant’s work ($9,150). The court ruled the resulting
    figure ($1,299) would be the restitution award.
    The problem, of course, is the decision to use the
    contract price in calculating the restitution owed. At the
    time Curto agreed to the contract, she believed (based on
    defendant’s misrepresentations) that he was a licensed
    contractor. Had she known before entering into the contract
    that defendant in fact had no license, there is no reason to
    believe she would have agreed to pay such a high amount.
    Indeed, there is good reason to conclude otherwise: in
    addition to plain common sense, which tells us, for instance,
    that a buyer will pay less for a chair built by IKEA than one
    built by Charles and Ray Eames, Curto’s testimony during
    the restitution hearing indicated she relied on the belief that
    defendant was licensed in selecting him for the renovation
    job. By treating the license-based contract price as a given,
    rather than reducing it to account for defendant’s
    subsequently discovered unlicensed status, the trial court
    gave defendant a windfall—and failed to make Curto fully
    whole. I would accordingly remand the matter to the trial
    5
    court to recalculate the restitution award consistent with the
    views I have expressed.4
    BAKER, J.
    4  I agree with the majority that the appellate division
    did not err in ordering Curto’s attorney fees to be included as
    part of the restitution award. (See Rancho Mirage Country
    Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th
    252, 263-264.)
    6
    

Document Info

Docket Number: B280100

Filed Date: 8/22/2017

Precedential Status: Precedential

Modified Date: 8/22/2017