Senator Laird introduced the California Senate Bill 447 – Laird (SB 447) on February 16, 2021.ⁱ This bill revisits the issue if the California survival statute should include the survivor’s right to recover decedent’s pain and suffering or disfigurement. It has raised old arguments and resulted in a statute which both preserves the long-standing law and policy considerations and allows a survival action to include decedent’s pain and suffering accrued before January 1, 2026.

In 1961, Senator James Cobey introduced SB 202. The California Law Revision Commission drafted the bill following its report, “Recommendation and Study Relation to Survival of Actions.”ⁱⁱ The Commission sought three changes: (1) expanding the survival statute to include other personal torts such as invasion of privacy, defamation, and malicious prosecution, (2) allowing the survival statute to include damages for punitive damages, and (3) allowing the recovery of deceased plaintiff’s disfigurement, and pain and suffering. The legislature ultimately amended SB 202, preserving then existing law a survival action could not include decedent’s pain and suffering or disfigurement.

The relevant statutes were later re-enacted in Code of Civil Procedure §§ 377.20 – 336.34. Currently, Code of Civil Procedure § 337.34 allows for survival actions as follows:

In an action or proceeding by a decedent’s personal representative or successor in interest on the decedents’ cause of action, the damages recoverable are limited to the loss or damage that the decedent sustain 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.ⁱⁱⁱ

SB 447 seeks to implement the one remaining recommendation of the California Law Revision Commission. The current SB 447 language states:

337.34 (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 cause of action accrued before January 1, 2026.^iv

The argument’s pros and cons were revisited.

The California Law Revision Commission contended the fortuitous death should not preclude the recovery of damages for pain and suffering. Such damages are recoverable and could have been enforced by decedent. If they do not survive, defendant obtains a windfall. The California Law Revision Commission contends proof of pain and suffering can be proved by means other than through decedent.^v

The Civil Justice Association of California (CJAC) presented their arguments against SB 447 on April 14, 2021 to the Senate Judiciary Committee.^vi The SJAC contended the abolishment of long-established law stating such damages are personal to the party injured violates multiple longstanding policy considerations. Also, juries would unjustly enrich the survivor plaintiff if plaintiff were entitled to recover damages only incurred by decedent. Moreover, the judicial system already provides adequate avenues to expedite a case should plaintiff’s health deteriorate.

In addition, the CJAC also requested the amendment be limited to “those personal injury cases impacted by the court backlog resulting from the pandemic” as a fair effort to “rectify the delayed redress of claims, while maintaining California’s longstanding and well justified public policy surrounding pain and suffering.”

Takeaway

The longstanding policy disallowing plaintiff in a survival action to recover decedent’s pain and suffering or disfigurement is preserved in form. The arguments for and against such recovery have been well debated. The question remains what statutory changes to Civil Code § 337.34 will occur once this sunset deadline expires five years from now.

Keep Reading

Cannabis Workers Allege Quota to Trim 4 Pounds a Day Violates the California Labor Code The Ninth Circuit Reminds Us: Every Word Matters NO WAY, PRO SE! The Consequences of Abusing the Judicial System as a Pro Se Litigant in Colorado Victim of Financial Mismanagement or Unlawful Retaliation? New Jersey City University Program Founder Claims School Retaliated After Reporting Alleged Sexual Harassment “Real Housewives” Gets a Reality Check Missing a Chapter: Insufficiency of Expert Deposition Testimony in Medical Malpractice Litigation Crash Course: Why Summary Judgment Misses the Mark in Illinois Multi-Cause Limousine Crash Collision Bitter Truths: Lead, Cadmium, and Defective Pleadings in California Chocolate Class Action The Law of Unintended Consequences: Including Insurance Brokers in Litigation Strategy Communication May Waive the Attorney-Client Privilege

More by this author

Do You Know Your Nuclear Risk Score? Don’t Make The Mistake of Being Vague – Review Your § 998 Offers Proposed California Bill Would Make Pain and Suffering Damages Available in Survival Actions $15 Million Punitive Damages Award Vacated in Asbestos Injury Case A Preservation of Evidence Letter is Not Enough to Protect an Attorney or Their Client From Consequences for Spoliation of Evidence Contractor’s Claiming Workers Compensation Exemption Can Lose Much More