California Raises the Price of Survival Actions – Will Allow Recovery of Decedent’s Pain, Suffering, or Disfigurement

By: Kathryn K. Schultz

Long-standing California law explicitly precluded recovery of damages for a decedent’s pain, suffering, or disfigurement in a survival action (i.e. a cause of action that survives the death of a plaintiff and passes to decedent’s successor in interest per Cal. Code of Civil Procedure [“C.C.P.”] § 377.30). On October 1, 2021, California Governor Gavin Newsom approved Senate Bill Number 447 amending C.C.P. Section 337.34 to permit recovery of such damages.  The new law takes effect on January 1, 2022 and will increase the price to resolve survival actions in California.

The new law applies to (1) new cases filed on or after January 1, 2022, and before January 1, 2026, and (2) to an action or proceeding that was granted trial preference pursuant to C.C.P. Sec. 36 before January 1, 2022.  Plaintiffs who recover damages pursuant to this new law are required to report to the Judicial Council, who will in turn report to the Legislature for evaluation of whether to extend or further amend the law in 2026.

Senate Bill 447 was co-sponsored by the Consumer Attorneys of California and Consumer Federation of California.  The main three arguments in support of the bill were: (1) California was one of only five states that prohibits recovery of a decedent’s pain and suffering in a survival action; (2) the prior law provided a “death discount” to defendants – creating an incentive to act in bad faith and delay trials hoping the plaintiffs will die in order to receive this discount; and (3) the incentive to delay trials created a burden on the court system.

The main arguments in opposition to the bill were:  (1) pain and suffering are personal to the plaintiff and are intended to provide some measure of comfort in the form of compensation to a person who experienced them; (2) damages for pain, suffering, and disfigurement are not meant to punish the defendant, but compensate the plaintiff and make them whole; (3) other options exist, like accelerating the trial date for ill or elderly plaintiffs (i.e. trial preference); and (4) if a plaintiff dies, their loved ones and representatives have another cause of action available that would not have been if the plaintiff were alive—i.e., a wrongful death action.  Opponents of the bill also voiced concerns regarding the scope of the bill, arguing that interest groups are taking advantage of the COVID-19 pandemic to pass their agenda, and that the bill should be amended only to include cases that were actually affected by the pandemic.

Now that Senate Bill 447 has been approved, settlement demands for survival actions are expected to increase.  Although currently limited to cases filed prior to January 1, 2026, it remains to be seen whether this change in law will become permanent.

Here is a comparison of the old and new law: 

OLD CCP 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.

NEW CCP 377.34: 

(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 judgements, consent judgements, 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.