Victims of crime: When can a lawsuit be filed?

The law allows victims of crimes several ways to recover compensation for their losses. As a victim, you (or in some cases, your family members) may:

• file a civil lawsuit for money damages against the perpetrator;
• seek payment from the California Victim Compensation Board (“CalVCP”) (for violent crime victims and their families),
• obtain domestic violence victims leave from work, and/or
• apply for restitution from the California criminal court (if the perpetrator is found or pleads guilty).

You do not need to choose one approach over the other. You can pursue any or all of these remedies.

Of the three, CalVCP payments are the most limited. We deal with them in a separate article, linked to above.

As between a civil lawsuit and victim restitution, however, each has its advantages and disadvantages. They are indicated in the following chart (and discussed in detail below):

CIVIL LAWSUIT	VICTIM RESTITUTION
Criminal conviction not necessary	Criminal conviction or plea required
You control the case	Case is brought by the prosecutor
You pay own attorneys	No cost to you for restitution
9 or 12 jurors can find liability	All 12 jurors must agree on guilt
Lower burden of proof	Very high burden of proof
Perpetrator must testify if called as witness	Perpetrator not required to testify
Non-economic damages recoverable	Pain & suffering covered only if you are treated
Punitive damages available	No punitive damages possible
Other parties may also be liable	The defendant must be convicted
Family members may be able to sue	Limited to you except when you are killed

Note that any crime can serve as a basis for restitution or a civil lawsuit. In theory, restitution is a quicker remedy because the court orders it when the defendant is sentenced. Though it requires a criminal conviction.

Do civil lawsuits require a criminal conviction?

A civil lawsuit does not require a conviction. Nor does it even require that the defendant is charged with a crime. Also, there may be other parties besides the defendant who can be named in the lawsuit. For instance:

• A ride-sharing company failed to conduct a legally required background check;
• A building owner failed to provide adequate lighting in its parking garage;
• A nightclub failed to provide security;
• A security company failed to properly train its guards how to de-escalate a confrontation
• A hospital is held liable for a sexual assault by one of its physicians
• A university is held liable under Title 9 for failing to prevent sexual assaults on campus.

Common civil lawsuits filed by victims of crime include (but are not limited to):

• Assault and battery lawsuits,
• Sexual assault and abuse lawsuits,
• Lawsuits when an employee is assaulted by a coworker,
• Nursing home abuse lawsuits,
• Stalking lawsuits, and
• Domestic violence lawsuits.

To help you better understand how you can obtain compensation, our California personal injury lawyers discuss, below:

• 1. What is the difference between a civil lawsuit and a criminal trial?
• 2. What is the difference between civil damages and restitution?
• 3. Who pays for a civil lawsuit or restitution?
• 4. Does the perpetrator need to be found guilty in a criminal trial for me to sue?
• 5. What is the standard of proof in a civil lawsuit?
• 6. What kinds of crime can I sue for?
• 7. What other parties can be held civilly liable for a crime?
• 8. Who can sue for the commission of a crime?
• 9. How long do I have to file a civil suit?
  • 9.1. General statute of limitations for personal injury lawsuits
  • 9.2. Childhood sexual assault or abuse
  • 9.3. Domestic violence
  • 9.4. False imprisonment
  • 9.5. Theft
  • 9.6. Felonies for which the defendant was convicted
  • 9.7. Claims against the government
• 10. What is the civil court process?
• 11. What if the defendant does not pay the judgment?

1. What is the difference between a civil lawsuit and a criminal trial?

The purpose of a criminal trial is:

• To determine the guilt of the accused and,
• If the accused is convicted, to impose an appropriate punishment.

As the victim, you are not a party in a criminal trial. While your wishes may be taken into account, you have no right to control the prosecution. It is the district attorney who decides whether to bring charges or accept a plea bargain.

A civil lawsuit, on the other hand, exists to make you (or sometimes your family) as whole as possible. It compensates you and/or your family for losses such as:

• Medical bills,
• Lost wages,
• Lost earning capacity,
• Pain and suffering,
• Loss of consortium, and/or
• Wrongful death.

2. What is the difference between civil damages and restitution?

The major difference between restitution and the damages obtained in a civil lawsuit is the process for obtaining them.

Victim restitution in criminal cases

In a criminal prosecution, you submit bills to the prosecution. The prosecutor then presents the figures to the defense and the court.

The judge ultimately decides how much victim restitution to award.

Money damages in civil lawsuits

In a civil suit, on the other hand, you must bring the case and prove liability and damages by a preponderance of the evidence.

This can often be a lengthy process. It can sometimes take years to reach a final resolution if a trial is required or the defendant appeals.

Criminal victim restitution, on the other hand, is typically ordered at the time of — or soon after — a defendant’s sentencing.

Defendants have a constitutional right to a speedy trial. This means restitution, at least in theory, can be obtained more quickly than damages from a California civil lawsuit.

3. Is there a cost to seek restitution or file a civil lawsuit?

There is no fee to apply for victim restitution in a criminal case. Bills are submitted through the prosecutor, who is paid by the government.

In a civil lawsuit, by contrast, you must almost always hire an attorney. Civil attorneys usually charge a contingency fee. Their fee is typically between 30 and 40% of the total amount recovered in the lawsuit.

A civil suit may still result in a larger award than restitution, however. Civil courts can award

• pain and suffering and
• punitive damages.

Additionally, many lawyers (including us) take no money unless you win at trial or settle out of court.

Note that in either case, you may need to hire a private attorney to help collect a civil judgment or criminal restitution order (as discussed in section 10, below).

In civil cases, you are entitled to interest on any unpaid portion of the judgment. You may also be able to amend the judgment.

In the case of restitution, costs of collection may be added to the restitution amount.

Your California injury lawyer can help you

• discover a defendant’s assets and
• assess the best means of collection.

4. Does the perpetrator need to be found guilty in a criminal trial for me to sue?

No. A defendant can be held liable in a civil lawsuit even though they were found “not guilty” of the crime. A notable example is O.J. Simpson who was acquitted in the 1994 murder of his wife, Nicole Brown, and her friend, Ronald Goldman.

The families of the victims later brought a wrongful death suit against Simpson. The jury found Simpson liable for $8 million in compensatory damages. The judge later added another $25 million in punitive damages.

Simpson was ordered to pay the $33 million in damages even though he had been found “not guilty” at trial. In fact, the families could have brought suit even if Simpson had never been charged.

However, it still makes sense in most cases for you to report a crime to the police. A police investigation may turn up evidence that can be used in a civil trial.

In the case of certain serious felony crimes, if a prosecutor does secure a conviction, the conviction can be used as the basis for a lawsuit.¹

5. What is the standard of proof in a civil lawsuit?

A key difference between civil and criminal proceedings is the “burden of proof.” In a criminal trial, the accused must be found guilty “beyond a reasonable doubt.”

In a civil trial, the standard for liability is a “preponderance of the evidence.” This simply means that the jury believes it is more likely than not that the defendant did what you claim.

In addition, all 12 jurors must agree on a defendant’s guilt in a criminal trial. In a civil lawsuit, only nine of 12 jurors need to find the defendant liable in order for you to be awarded damages.

6. What kinds of crime can I sue for?

Almost any type of crime can serve as the basis for a lawsuit. The keys to a successful lawsuit for a criminal act are whether:

1. You suffered damages, and
2. The defendant (or another liable party) has enough assets to compensate you.

That said, certain types of crimes are particularly suited to civil actions. They include (but are by no means limited to):

• Arson,
• Assault and battery,
• Assault with a deadly weapon,
• Child abuse or neglect,
• Criminal threats,
• Domestic violence,
• DUI with injury,
• Elder abuse,
• False imprisonment,
• Fraud,
• Hate crimes,
• Human trafficking,
• Incest,
• Nursing home abuse,
• Rape,
• Robbery,
• Sex trafficking,
• Sexual Assault,
• Stalking,
• Terrorism,
• Vehicular manslaughter or homicide, and
• White-collar crimes.

7. Who can sue for the commission of a crime?

Generally, only you can sue the defendant for a crime.

Sometimes, however, your family members can also bring a lawsuit. Family members most likely to prevail are spouses, registered domestic partners and children of the victim. To bring suit, the family members must have suffered harm such as:

• Negligent infliction of emotional distress,
• Loss of consortium (moral support, sex, companionship, etc.),
• Loss of financial support,
• Wrongful death,
• A survival action by the victim’s estate.

Families of violent crime survivors who need help with expenses may also be able to obtain them through the CalVCP program, even if they do not have a basis to sue.

8. What other parties can be held civilly liable for a crime?

Anyone who violates a duty of care In California is liable for damages caused by their negligence. As a result, sometimes someone other than the perpetrator may be legally liable for damages to you.

Suing an employer for the acts if its employees

Employers, for instance, may be legally required to conduct a background check on a potential hire. Or they may be on notice about complaints about sexual harassment.

In such a case, if the employer fails to take appropriate action, the employer can be held liable under California’s law on negligent hiring, retention or supervision of an employee.

Suing a business for allowing an unsafe condition

In other cases, a company, such as a hotel or a restaurant, may have violated a duty of care to keep property safe under California’s premises liability laws. If you become a victim of a crime due to broken doors or cameras or similar hazards, the company may be liable.

Examples of situations in which someone other than the perpetrator may be liable include (but are not limited to):

• Someone is sexually assaulted in an office parking lot that has inadequate lighting;
• A bouncer at a concert physically assaults someone they think was trying to sneak in;
• A ride-sharing driver with a recent DUI conviction drives drunk and kills someone;
• A school district ignores complaints about a teacher who then abuses a child.

9. How long do I have to file a civil suit?

9.1. General statute of limitations for personal injury lawsuits

California’s statute of limitations in most personal injury cases is two years. This two-year period applies to claims such as

• assault,
• battery and
• wrongful death.²

Though you often have a shorter or longer period in which to sue. A partial list of crimes with different statutes of limitations is set forth below.

Because the issue of the statute of limitations is such a critical and complicated one, we advise you to contact an experienced personal injury lawyer as soon as possible after the crime.

9.2. Childhood sexual assault or abuse

California’s “statute of limitations” for childhood sexual abuse allows you to bring suit for the abuse at any time before your 26th birthday.

Though California also has a “delayed discovery” rule in childhood sexual assault and abuse cases that can give you a longer time period in which to file suit.

California’s “delayed discovery” rule for childhood sexual abuse

Under the delayed discovery rule, you can sue for childhood sexual abuse for up to three years after:

• You discover that a psychological injury or illness that started in adulthood was, in fact, caused by childhood sexual abuse, or
• You reasonably should have discovered that such an injury or illness was caused by childhood sexual abuse.³

Example: When she goes off to college at age 18, Janine begins having terrible nightmares. She suffers all through college and grad school. At age 28, Janine’s insomnia becomes unbearable and she starts therapy.

Eventually Janine’s therapist discovers that Janine was molested by an older teenage neighbor when she was a child. Living in a co-ed dorm caused Janine to suffer from delayed post traumatic stress disorder and anxiety. Janine has three years to sue from when she discovers her symptoms were caused by the childhood sexual abuse.

“Certificates of merit” required if you are 26 years old or older at the time of filing the lawsuit

If you wish to take advantage of California’s “delayed discovery” rule, you must provide “certificates of merit” from

• a mental health professional and
• a lawyer.

The mental health professional must be someone who has not previously treated you. This means you cannot use your own therapist.

The mental health professional must examine you and provide a certificate stating that there is a valid reason why you could not have discovered the harm sooner. For instance, in the case set forth above, a psychologist might state that Janine’s symptoms did not start until Janine lived in a dorm with many older teenage boys.

Your lawyer will then review the case, including, to the extent available::

• Your statement,
• The police report (if any), and
• The mental health professional’s findings.

The lawyer will then sign a certificate stating that in their opinion, the case has merit.

Because the mental health professional must examine you and the lawyer must review that person’s findings, it may take some time to get the required certification.

If you are age 26 and older, you must, therefore, act without delay. As soon as you think California’s “delayed discovery” rule might apply, you should contact an experienced California injury lawyer.

9.3. Domestic violence

The statute of limitations for civil domestic violence lawsuits in California is three years from:

• The last act of domestic violence against you by the defendant, or
• The date on which you discover — or reasonably should have discovered — that an injury or illness resulted from an act of domestic violence.⁴

9.4. False imprisonment

In California, false imprisonment is both a crime and a civil tort. It occurs when someone deprives you of liberty without moving you to another location — for instance, by locking you in a room and denying you the right to leave.

False imprisonment often (but not always) occurs in conjunction with domestic violence cases. However, it has a much shorter statute of limitations — just one year from when the false imprisonment took place.⁵

9.5. Theft

Civil claims for theft generally have a statute of limitations of three years in California. It increases to six years, however, if the claim is against a

• museum,
• gallery or
• auction house

for the theft of fine art.⁶

9.6. Felonies for which the defendant was convicted

If you are a victim of a felony crime, you may have a longer period in which to sue if the DA files criminal charges and the defendant is convicted.

You (or your family) are given one year following pronouncement of the conviction to bring a lawsuit or – in cases of serious felonies (such as rape or murder) – 10 years from when the defendant is discharged from parole.⁷

Wait for the criminal case to finish or file a lawsuit now?

Because it is not possible to predict whether or when there will be a conviction, you may wish to bring a suit within the two-year or other applicable civil statute of limitations.

Though if your case would otherwise be time-barred, you can use the felony rule to get more time to bring a suit.

An experienced California injury attorney can help you decide whether you still have the right to sue. Your lawyer can also help you decide whether

• to wait for a criminal trial to conclude or
• to bring suit without a conviction.

9.7. Claims against the government

Claims for negligence against the government have a short limitations period and very specific administrative procedures that must be followed before you can file suit.

These include “presentment of a claim” (written notice) which must usually be given within six months of the wrongful act – though in some cases you may have as much as one year.⁸

If you wish to hold government agencies accountable, you are advised to speak to a lawyer promptly to avoid your claim becoming time-barred.

10. What is the civil court process?

The first step of bringing a civil lawsuit is to find a personal injury lawyer who will take your case.

Having a personal injury lawyer with a background in criminal defense or prosecution can be a huge advantage, but is not required.

The lawyer will usually begin by

• taking your statement and
• reviewing police records and criminal court proceedings (if any).

Assuming there is a basis to file charges, the case will usually move through the following steps:

• 1. The complaint is filed with the court.
• 2. The parties conduct discovery, such as:

• • Requesting documents from the other side;
  • Interrogatories (in which the other side must answer questions); and
  • Deposing the perpetrator and other witnesses.
• 3. The attorneys file pre-trial motions (such as motions to compel discovery).
• 4. The jury is selected.
• 5. Trial.
• 6. Damages phase (if conducted separately).
• 7. The court issues a judgment.
• 8. You try to collect the debt if the defendant has been found liable.

11. What if the defendant does not pay the judgment?

If the defendant does not pay the judgment, you might need to go back to court to get help. Ways the court can help you collect on a judgment include (but are not limited to):

• Garnishing the defendant’s wages;
• Putting a lien on the defendant’s bank account;
• Forcing a sale of the defendant’s real estate; or
• Imposing “sanctions” (such as suspension of a professional license) that may encourage the defendant to pay up.

Note that judgments in California are

• enforceable for 10 years and
• renewable in 10-year periods after that.

They must be renewed for each new 10-year period before the current period expires.

You may wish to read the Judicial Branch of California’s tips on collecting judgments to learn more about your options.

(For cases in Colorado, please see our page on how to file a lawsuit as a victim of crime in Colorado).

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