The Attacker Cannot Pay: Who Else Can?

Our assault and battery practice page explains that a civil claim against the attacker is separate from the criminal case. The practical problem is that the attacker may have no assets, and the attacker's own insurance generally will not cover a deliberate act. A judgment against someone who cannot pay protects you on paper only, so the real work is finding every other source the law makes available.

This guide walks through those sources in the order they are usually checked, what each can cover, and the rules that limit them.

How do you find other sources of payment, step by step?

Check the attacker's insurance, knowing its limit. An insurer is not liable for a loss caused by the wilful act of its insured (Insurance Code 533), so a homeowner's or renter's policy generally will not pay for a deliberate attack.
Look at where it happened. A business open to the public or a landlord must use reasonable care to protect patrons, guests and tenants from crime it can reasonably anticipate (CACI 1005).
Ask whether the attacker was working. An employer is responsible for an employee's wrongful acts committed as part of its business (Civil Code 2338), and the jury instructions explain when an attack falls within the scope of employment (CACI 3720 and 3722).
Ask whether a public employee or public place was involved. A public entity is liable for injuries caused by its employees acting within the scope of employment (Government Code 815.2), but a written claim is due within six months (Government Code 911.2).
Follow the criminal case. If the attacker is convicted, the court must order restitution for every determined economic loss (Penal Code 1202.4(f)).
Apply to the Victim Compensation Board. CalVCB pays crime-related expenses after other sources are used, and the application is due within seven years of the crime in most cases (Government Code 13953).
Use your own coverage. Health insurance, disability insurance and, if you were working, workers' compensation can pay while the other claims are pending.

What can each source cover?

Source	What it can cover	Main condition	Rule
Property owner or business	Full damages, including pain and suffering	The attack was reasonably foreseeable and the precautions were not reasonable	CACI 1005; Civil Code 1714
Attacker's employer	Full damages	The attack was within the scope of employment, or the employer was negligent in hiring, supervising or keeping the employee	Civil Code 2338; CACI 3720, 3722, 426
Public entity	Damages, but no punitive damages	Employee acting within the scope of employment; six-month written claim	Government Code 815.2, 818, 911.2
Criminal restitution	Economic losses only: medical bills, counseling, lost wages and similar costs	A conviction; enforceable like a civil judgment	Penal Code 1202.4(f), (i)
Victim Compensation Board	Listed crime-related expenses, within the Board's rates and limits	A qualifying crime, cooperation with police, and other sources used first	Government Code 13953, 13955; CalVCB
The attacker personally	Full damages, including punitive damages	A judgment, which still has to be collected	Civil Code 3294

Why won't the attacker's insurance pay?

Insurance Code 533 says an insurer "is not liable for a loss caused by the wilful act of the insured," though it is not excused by the insured's negligence. A deliberate punch, stabbing or beating is a wilful act, so the attacker's homeowner's, renter's or umbrella policy generally does not cover it, whatever the policy says.

That rule is about the attacker's own policy. It does not stop a negligent property owner's or employer's insurer from paying for that business's own negligence, which is one reason the next questions matter so much. Our guide on when a business is responsible for an assault on its property explains the foreseeability rules in detail.

How does criminal restitution work?

The Legislature has said that a crime victim who suffers an economic loss "shall receive restitution directly from a defendant convicted of that crime" (Penal Code 1202.4(a)(1)). When the defendant is sentenced, the court must order restitution in an amount that fully reimburses every determined economic loss, including medical expenses, mental health counseling, lost wages, relocation costs verified as necessary for safety, and, after certain violent crimes, residential security costs (Penal Code 1202.4(f)(3)).

A restitution order is enforceable as if it were a civil judgment (Penal Code 1202.4(i)). If the Victim Compensation Board has already paid you, that amount is included in the restitution order (Penal Code 1202.4(f)(4)), and restitution actually collected is credited against any civil judgment for the same losses (Penal Code 1202.4(j)).

In Sonoma County, the District Attorney's office says its restitution staff assists victims in obtaining restitution from convicted defendants, and asks victims to keep copies of crime-related bills and receipts and to have the crime report number and the offender's name. Restitution covers economic losses only; pain and suffering belongs in a civil claim.

What can the Victim Compensation Board pay?

The California Victim Compensation Board describes itself as "the payor of last resort": it pays after other reimbursement sources are used, including medical insurance, disability insurance, employer benefits and civil suits. Its listed categories include medical and dental treatment, mental health services, income loss, relocation, residential security, home or vehicle modifications for a victim who became disabled, and funeral and burial costs, each subject to the Board's rates and limits. It cannot pay for lost, stolen or damaged property.

To be eligible, the Board says victims must cooperate with police and court officials, cooperate with Board staff, and not have been involved in the events that led to the crime. The application must be filed within seven years of the crime, seven years after the victim turns 21, or seven years from when the injury could have been discovered, whichever is later (Government Code 13953). Applications can take about 90 days to process, according to the Board.

The Sonoma County District Attorney's Victim Services Division has advocates who help fill out CalVCB applications, and Spanish-speaking advocates are available. If you later file a lawsuit about the crime, the Board says you or your lawyer must notify it within 30 days of filing, because it has a right to be repaid from a recovery for the same expenses. Our guide on what comes out of a personal injury settlement explains how repayment claims like this are handled.

What changes the answer?

The attacker was an employee on the job. A bouncer, guard, clerk or caregiver who attacks someone can make the employer responsible (CACI 3722); see when an employer is responsible for its employee's attack.

You were working when you were attacked. Workers' compensation from your employer is usually the only remedy against the employer, but claims against an outside attacker or a negligent property owner stay open (Labor Code 3852); see assaults at work and workers' comp.

A public employee or public place was involved. A public entity can be a source of payment, but not of punitive damages (Government Code 818); see assaults by a public employee or at a public facility.

The attacker is a spouse. If a divorce or legal separation is pending, a court may enforce a domestic violence judgment against the abusive spouse's share of community property (Family Code 2603.5); see suing for domestic violence in California.

The attacker was convicted of a felony. A lawsuit based on that felony can be filed within one year after judgment is pronounced, unless a longer period applies (Code of Civil Procedure 340.3), which can help when the criminal case takes a long time.

What could this look like? An example

For example, imagine a woman who is punched and knocked down by a stranger in the poorly lit garage of her Rohnert Park apartment complex. The attacker is arrested, pleads guilty to battery, and has no job, no property and only a renter's policy.

The renter's policy will not pay for his deliberate attack (Insurance Code 533). The criminal court orders restitution for her medical bills and lost wages, but collection is slow. She applies to CalVCB through a Victim Services advocate, and the Board pays some of her counseling costs that her health plan does not. Her lawyer then looks at the landlord: tenants had reported a broken garage gate and two car break-ins in the months before, which bears on whether the landlord could reasonably anticipate crime in that garage (CACI 1005). If she recovers from the landlord's insurer, CalVCB is repaid for what it paid. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do people make when the attacker cannot pay?

Giving up on a civil claim because the attacker is broke, without asking who controlled the property.
Assuming the attacker's homeowner's policy will pay for an intentional attack.
Not giving bills and receipts to the District Attorney before sentencing, when restitution is ordered.
Missing the six-month claim deadline when a public entity may share responsibility.
Filing a lawsuit without notifying CalVCB within 30 days after it has paid expenses.

What should I do this week?

Get the police report number and the name of the deputy district attorney or victim advocate assigned to the case.
Keep every medical bill, receipt and pay stub that shows a loss from the attack.
Write down where the attack happened, who owned or ran the place, and whether the attacker was working.
Ask the business or landlord, in writing, to keep its video and incident reports; our guide on what to do in the first week after an assault has the full checklist.
Apply to CalVCB, online or with an advocate's help.
Mark the deadlines using our guide to California personal injury deadlines.
If cost is a worry, see our guide on legal services for low-income families in California.

Frequently asked questions

Is it worth suing someone who has no money?

A judgment can be enforced later, and restitution orders can be collected after sentencing, but the more important question is whether anyone else shares responsibility. A negligent owner or employer may carry liability insurance.

Does CalVCB require a conviction?

The Board's eligibility rules require cooperation with police and court officials to arrest and prosecute the offender, with exceptions for some crimes such as domestic violence, human trafficking and sexual assault. The rules it lists do not require a conviction.

Will I have to pay CalVCB back?

If you later recover money for the same expenses from a lawsuit, insurance or workers' compensation, the Board has a right to be repaid, but not more than it paid you.

Does restitution cover pain and suffering?

Generally no. Restitution covers economic losses (Penal Code 1202.4(f)); pain and suffering is recovered in a civil claim. Our guide on how pain and suffering is valued explains that part.

Can I get punitive damages from the attacker?

Yes, if malice, oppression or fraud is proven by clear and convincing evidence (Civil Code 3294). They are not available against a public entity (Government Code 818).

Who helps with this in Sonoma County?

The District Attorney's Victim Services Division helps with CalVCB applications and restitution. Our Sonoma County page lists the local courts and agencies.

If the person who attacked you cannot pay for what they did, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation about who else may be responsible.

The person who attacked me cannot pay: who else can?