California Joins the Majority of States in Modifying Its Survival Action Statute To Now Permit Recovery for Pain, Suffering And Disfigurement

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On January 1, 2022, California Code of Civil Procedure (“CCP”)Section 377.30 et seq., as amended by Senate Bill 447, otherwise known as the “survival action” statute1, goes into effect. On that date, all plaintiffs filing new civil cases filed on or after January 1, 2022, and before January 1, 2026, and plaintiffs in any action or proceeding granted trial preference pursuant to CCP Section 36 before January 1, 2022, will be expressly allowed to recover damages for a decedent’s pain, suffering, or disfigurement in a survival action.2 This is a significant change in California law. In that regard, California is now the 46th state to permit this form of recovery.

As reported in the Legislative Counsel’s Digest3, Consumer Attorneys of California and Consumer Federation of California, which co-sponsored Senate Bill 447, opined to the Legislature that the prior law provided a “death discount” to defendants which incentivized bad faith delays in resolution, and caused unnecessary congestion of the already overburdened court system. These argued issues will be vetted by the Legislature using the four-year reporting requirement that is also part of the amendment to the statute, requiring plaintiffs who recover this newly permitted category of damages to report the valuation and details of the case to the Judicial Council within 60 days of the judgment or other operative court document being entered in the court’s docket.4 The amendment will be evaluated by the Legislature for amendment or extension on or before January 1, 2026.

The former law and the amended law are presented below for ease of comparison:

Former text of CCP Section 377.34:

In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.

Modified CCP Section 377.34 in effect as of January 1, 2022:

(a) In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.

(b) Notwithstanding subdivision (a), in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.

(c) A plaintiff who recovers damages pursuant to subdivision (b) between January 1, 2022, and January 1, 2025, inclusive, shall, within 60 days after obtaining a judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages, submit to the Judicial Council a copy of the judgment, consent judgment, or court-approved settlement agreement, along with a cover sheet detailing all of the following information:

(1)       The date the action was filed.
(2)       The date of the final disposition of the action.
(3)       The amount and type of damages awarded, including economic damages and damages for pain, suffering, or disfigurement.

(d) (1) On or before January 1, 2025, the Judicial Council shall transmit to the Legislature a report detailing the information received pursuant to subdivision (c) for all judgments, consent judgments, or court-approved settlement agreements rendered from January 1, 2022, to July 31, 2024, inclusive, in which damages were recovered pursuant to subdivision (b). The report shall comply with Section 9795 of the Government Code.

(2) This subdivision shall become inoperative on January 1, 2029, pursuant to Section 10231.5 of the Government Code.

(e) Nothing in this section alters Section 3333.2 of the Civil Code.

(f) Nothing in this section affects claims brought pursuant to Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of the Welfare and Institutions Code.
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Footnotes:

(1)  To clarify, a survival action is a statutorily permitted action permitting the legally designated successors in interest to bring claims that a related decedent would have had before death, from the time of a negligent act or omission that allegedly caused the death and the death itself.

(2)  On October 1, 2021, California Governor Gavin Newsom approved Senate Bill Number 447 amending C.C.P. Section 337.34 to permit recovery of damages for pain, suffering and disfigurement

(3)  For further reading on the underpinnings of this amendment, please find here a link to a copy of the Senate Floor Analyses relevant to the statute.

(4)  Any damages recovered pursuant to this new law triggers a reporting requirement. Plaintiffs must, within 60 days, serve the Judicial Council with a cover sheet with details of the post-verdict judgment, consent judgment, or judicially enforceable settlement, along with a file-endorsed copy. The Judicial Council will then report to the Legislature. This reporting requirement continues through January 1, 2025, so that the Legislature may evaluate whether to extend or further amend the law in 2026.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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