Can you sue while the criminal case is still pending?
Yes. California has said so since 1872. When one wrong gives rise to both a civil and a criminal remedy, “the right to prosecute the one is not merged in the other.” (Code Civ. Proc., § 32.) The Penal Code adds that it does not wipe out anyone’s right to recover damages. (Pen. Code, § 9.)
The district attorney prosecutes on behalf of “the People” to punish and protect the public. Your civil lawsuit is filed in your name to compensate you for what you lost.
The most common example is a DUI crash. If you were hit by a drunk driver, read more about drunk driver victims and whether a bar can be held responsible.
Does the criminal case pause the statute of limitations?
Usually not. This is the most dangerous misunderstanding in this area. A statute of limitations is the deadline to file a lawsuit. A criminal case can take longer than that deadline. Waiting for the verdict can cost you the claim.
There is one important extension. Under Code of Civil Procedure section 340.3, if the defendant is convicted of a felony, the victim can get extra time to sue that defendant, measured from the judgment, unless a longer period already applies. The clock is tolled (paused) if the sentence or judgment is stayed. An appeal or a grant of probation does not count as a stay. (§ 340.3, subd. (c).)
Courts have applied section 340.3 even when the defendant pleaded no contest to the felony, and even when it gave victims more time than another statute would have. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963.)
Do not plan around it. Section 340.3 helps only if there is a felony conviction, and only against the convicted person. Charges get dropped. Felonies get pleaded down to misdemeanors. Employers, bars and other responsible parties are not covered by the extension. If a city, county or state employee was involved, a government claim has a much shorter deadline. (See our page on government entity claims.) File on the ordinary deadline.
Will the civil case be put on hold?
Not automatically. Either side can ask the judge for a stay, meaning a pause, until the criminal case ends. Judges weigh the injured person’s interest in moving forward, the burden on the defendant, court efficiency, the interests of non-parties and the public interest. (Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324–325.)
The defendant’s real concern is the Fifth Amendment, the right not to incriminate oneself. A defendant can refuse to answer questions in the civil case. That choice has consequences, and they differ by court:
- Federal court: the jury may be allowed to draw an adverse inference, meaning it can assume the silence hides bad facts. (Baxter v. Palmigiano (1976) 425 U.S. 308, 318.)
- California state court: no comment and no inference is allowed from the exercise of a privilege. (Evid. Code, § 913, subd. (a).) But a defendant who refuses to answer in discovery can be barred from testifying about those same subjects at trial. (A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554.)
Can the criminal record be used in your civil case?
Often, yes. How much it helps depends on how the criminal case ended.
- Guilty plea: admissible as an admission. It is strong evidence, but the defendant can still try to explain it. (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 605–606.)
- Felony conviction: a final felony judgment may be offered to prove facts essential to it, even after a no contest plea. (Evid. Code, § 1300.) A conviction after a full trial can also bar the defendant from relitigating the same issue, if the Lucido requirements are met. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
- No contest plea to a misdemeanor: generally cannot be used against the defendant in a civil case arising from the same act. (Pen. Code, § 1016, subd. 3.)
- Acquittal: does not end your case. A criminal jury must find guilt beyond a reasonable doubt. A civil jury decides what is more likely true than not. (In re Anderson (1951) 107 Cal.App.2d 670, 672.)
Is restitution the same as a civil recovery?
No. The California Constitution requires courts to order restitution when a crime victim suffers an economic loss. (Cal. Const., art. I, § 28, subd. (b)(13).) Restitution covers items such as medical bills, counseling costs, lost wages and property damage. (Pen. Code, § 1202.4, subd. (f)(3).) Except for certain child sexual abuse crimes, it does not cover pain and suffering. That comes only from a civil case.
Restitution can also include attorney’s fees you paid to pursue the civil claim. (§ 1202.4, subd. (f)(3)(H).) Courts have disagreed on how to measure them. One court required an hourly “lodestar” review. (People v. Millard (2009) 175 Cal.App.4th 7.) Another approved a standard one-third contingency fee as reasonable. (People v. Taylor (2011) 197 Cal.App.4th 757.)
A civil release does not wipe out restitution. The restitution debt runs to the State, and a victim cannot waive it. (People v. Bernal (2002) 101 Cal.App.4th 155; People v. Grundfor (2019) 39 Cal.App.5th 22, 28.) Money paid in the civil case is credited against the restitution order, so there is no double recovery.
Will insurance pay if the act was intentional?
This is where the criminal label can hurt you. California law says an insurer is not liable for a loss caused by the insured’s “wilful act.” (Ins. Code, § 533; J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009.) The same statute says the insured’s negligence does not excuse the insurer. So how the claim is framed matters. Careless conduct, even very careless conduct, is usually treated differently from a deliberate attack.
Punitive damages can be awarded against a drunk driver. (Taylor v. Superior Court (1979) 24 Cal.3d 890.) But California public policy bars insurance from paying punitive damages. (PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310.) Those come from the defendant’s own assets. For assaults at businesses, look at the property owner’s duties too. See negligent security.
What’s new since 2024
- Settlements cannot replace restitution (2024). In People v. Plains All American Pipeline, L.P. (May 2, 2024, B315256), arising from the 2015 Santa Barbara oil spill, the Court of Appeal held that restitution cannot be denied because victims accepted mediated settlements or were part of a class action. Some had settled for between 3.5% and 18.6% of their restitution claims. The court said civil settlements serve as an offset, not a substitute.
- Victims get paid first (2025). Assembly Bill 1213 (Stats. 2025, ch. 184), signed October 1, 2025, amended Penal Code section 1202.4. Victim restitution must now be paid before fines, restitution fines, penalty assessments and other fees in the criminal case.
Further reading: Reza Torkzadeh, “Parallel proceedings, conflicting rules: Managing civil and criminal exposure” Daily Journal (Aug. 21, 2025).
What to do if the person who hurt you was charged
- Find out your filing deadline now. Do not wait for the verdict.
- Give a claim notice early if a public employee or agency is involved. Those deadlines are much shorter.
- Register as a victim with the prosecutor’s office so you get notice of hearings, including restitution.
- Keep every bill, pay stub and receipt. Restitution requires proof of each loss.
- Look beyond the defendant. Employers, vehicle owners, bars and property owners may share responsibility.
If a loved one was killed, see our wrongful death page.
Frequently asked questions
Do I have to wait for the criminal case to end before suing?
No. You can file while charges are pending. The criminal case generally does not stop the filing deadline, so waiting can make your claim too late.
If the defendant is found not guilty, can I still win a civil case?
Yes. A civil case uses a lower standard of proof. An acquittal means the prosecution did not prove guilt beyond a reasonable doubt. It does not decide whether the defendant is liable to you.
Does restitution cover pain and suffering?
In most cases, no. Restitution covers economic losses like medical bills and lost wages. Pain, suffering and emotional harm are recovered in a civil lawsuit.
If I settle with the insurance company, do I lose restitution?
No. California courts hold that a civil release does not cancel a restitution order. What you received in the settlement is credited against the restitution amount.