New California law threatens to dramatically increase pain-and-suffering damages in survival actions

California Governor Gavin Newsom has signed into law SB 447, which expands the scope of recoverable damages in survival actions.  The amended statute, signed into law on October 1, 2021, permits damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative or successor in interest.

Background

Under the prior version of Code of Civil Procedure section 377.34, an action brought on behalf of someone who sustains a bodily injury (ie, the estate) could recover pain-and-suffering damages, but an action brought by a decedent’s survivors could not.   With respect to the scope of damages available to the successors in interest, the statute was previously “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 has the decedent lived.”  (Civ. Proc. Code, § 377.34.)

The new version of code of Civil Procedure section 377.34

As a result of SB 447, section 377.34 now states that “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.” (Emphasis added).

A plaintiff who recovers damages for pain, suffering, or disfigurement between these new specified dates must provide the Judicial Council with a copy of the judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages and a cover sheet detailing the date the action was filed, the date of the final disposition of the action, and the amount and type of damages awarded, including economic damages and damages for pain, suffering, or disfigurement.  On or before January 1, 2025, the Judicial Council must submit a report to the legislature detailing the information received for all judgments, consent judgments, or court-approved settlement agreements rendered from January 1, 2022, to July 31, 2024.

Impact

These changes threaten to dramatically increase the amount of damages awarded in survival actions in California.  The Consumer Attorneys of California, an organization of plaintiff’s lawyers, introduced SB 447 with the aid of Senator John Laird (D-Santa Cruz). 

According to Senator Laird, “[w]hen it comes to giving families a chance to recover non-economic damages, California is one of only five states in the entire nation that rewards defendants for prolonging court procedures – leaving victims unable to obtain justice.” He further noted that “SB 447 will end a decades-old injustice in California by finally extending a victim’s right, and the right of their loved ones, to pursue accountability for human suffering – even if they die prior to case resolution.”

Opponents have argued, in vain, that California already allows for punitive damages to be recovered in survival actions, and so allowing pain-and-suffering damages in survival actions would function as a double recovery.  Now that the legislation has been signed into law, practitioners should be cautious in approaching their case valuations and risk assessments in survival actions brought in California.

Learn more about the implications of the newly amended version of Code of Civil Procedure section 377.34 and survival actions in California by contacting the authors or your usual DLA Piper attorney.