When representing claimants seeking damages for wrongful death pursuant to California’s statutory scheme (Code Civ. Proc. § 377.60), counsel for a decedent’s heirs must consider as well whether to seek compensation for the damages that, prior to his death, belonged to the decedent.

While economic and non-economic damages sustained as a result of decedent’s death are recoverable by the statutory heirs in a wrongful death action, that statute provides no recovery for the decedent’s potential claims against the defendants — for punitive damages, property damage, or losses and damages that the decedent sustained or incurred before death. (Code Civ. Proc. § 377.61.)

Unlike wrongful death claims (which belong to the affected heirs), such claims for property damage, punitive damages, medical bills or lost earnings incurred by the decedent before death belong to the decedent, and must be pursued on her behalf separately, by either a personal representative or successor in interest via a “survivor cause of action.” (Code Civ. Proc. § 377.30; see also, Quiroz v. Seventh Ave. Center (2006)140 Cal.App.4th 1256, 1264: “Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event.”)

To pursue such claims when there is no pending estate (and thus, no executor or administrator), Code Civ. Proc. § 377.32 permits the filing of a declaration by one or more successors in interest to decedent, wherein they set forth their entitlement to proceed on the decedent’s behalf. This declaration should be filed along with the Complaint, attaching as an exhibit a copy of the death certificate. (Code Civ. Proc. § 377.32.)

In such circumstances, if (hypothetically) the successor in interest is also individually pursuing a wrongful death claim, the case might be captioned as Plaintiff “Carl Claimant, individually and as successor in interest of Decedent John Smith.” In a typical auto accident scenario, at least two causes of action would then be set out in the Complaint: one negligence claim that seeks damages for Carl, individually, for the wrongful death of the decedent; and one negligence claim that seeks damages recoverable by the decedent, as pursued by Carl in his separate capacity as decedent’s successor in interest.

Until 2022, California was among the minority of states that did not permit (except in elder abuse cases) decedent’s personal representative or successor in interest to recover for the decedent’s pain and suffering sustained before death. See discussion in Garcia v. Superior Court (1996) 42 Cal.App.4th 177, 186, noting the rationale of the law prior to these recent amendments: “Code of Civil Procedure section 377.34 represents the Legislature’s reasonable
judgment that, once deceased, the decedent cannot in any practical way be compensated for his injuries or pain and suffering, or be made whole.”
 
On October 1, 2021, Governor Newsom approved Senate Bill Number 447 (“SB 447”) amending that statute to permit 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. So that prior rule has changed with the legislative amendments to Code of Civil Procedure

Section 377.34(b), effective as to actions filed after January 1, 2022; those changes remain in effect for the next four years, after which the statute will “twilight” unless extended after legislative study.

This statutory change gives significant potential advantage to Plaintiff’s counsel. Up to now, a seriously injured plaintiff awaiting trial for his personal injury case, whose survival (whether due to incident-related injuries or unrelated health conditions) is questionable was in a race to trial. If he died before the case went to trial and judgment, his claim for general damages (pain and suffering) would die with him.

That will no longer be the case. Under Section 377.34(b) as amended, should plaintiff die before final judgment, his claims for pre-death pain and suffering survive, and may be recoverable by his personal representative or successor in interest even after his death.

If that death was incident-related, those claims may be joined with a wrongful death claim brought by the statutory heirs, individually; if it was not, those claims remain recoverable through either the substitution, after motion, of the successor in interest in decedent’s existing personal injury lawsuit (as described in Code Civ. Proc. § 377.31), or by filing a new lawsuit so seeking.

There remain instances when heirs of a decedent, for whose death they are pursuing a
statutory claim for wrongful death, might not seek to avail themselves of this expanded remedy.
At least two variables might sway the heirs in that direction. First, perhaps the wrongful death
was instantaneous, or nearly so, such that any provable pain and suffering is speculative or
minimal. Heirs, through their counsel, might determine that a claim for pain and suffering is a
distraction that adds little to their existing wrongful death claim.

Second, under circumstances where decedent had substantial incident-related medical
care before her death, resulting in a large, otherwise uncollectible lien claim from medical
providers (i.e., decedent had little or no assets in her estate), heirs might determine to pursue only
the wrongful death claim, so that a cause of action seeking reimbursement for decedent’s
medical bills (subject to the providers’ liens) and pain and suffering does not swallow up the
limited available insurance funds available from defendants.

In such cases, the decision is a significant one. Where wrongful death claimants do not
set out a cause of action alleging survival that would permit compensation for decedent’s claims,
they bear no legal responsibility to pay for a decedent’s pre-death medical expenses; but, if there
is such a claim, the decedent’s personal representative or successor in interest would have to deal
with these medical claims from the recovered sums.

The leading case so stating is Fitch v. Select Products Co., (2005) 36 Cal.4th 812, 819.
There, Medi-Cal sought the recovery of a lien (for health care services rendered to the deceased),
after trial, and after a judgment was entered in favor of certain wrongful death claimants. In
Fitch, there was no cause of action presented on behalf of, or judgment entered in favor of, the
decedent’s personal representative or successor in interest. The California Supreme Court held
that the Department of Health Services was not authorized to assert a Medi–Cal lien against
this wrongful death recovery: “Because the damages awarded in a wrongful death action are for

the harm done to the survivors, not to the deceased, medical expenses for treating the final illness
or injury are not recoverable.” Fitch, 36 Cal.4th at 819.

Subject to an exception in such situations, where heirs might choose not to avail
themselves of these newly available claims, the amendment to Code of Civil Procedure Section
377.34 fills a significant gap in California’s system of tort compensation for wrongful death. The
amendment provides four years for this change to be in force and effect, and calls for mandatory
reporting when there is recovery under the statute, so that the legislature can later evaluate if this
change should become permanent. Time will tell, but the potential impact of this legislative
change will likely be significant.

the harm done to the survivors, not to the deceased, medical expenses for treating the final illness
or injury are not recoverable.” Fitch, 36 Cal.4th at 819.

Subject to an exception in such situations, where heirs might choose not to avail
themselves of these newly available claims, the amendment to Code of Civil Procedure Section
377.34 fills a significant gap in California’s system of tort compensation for wrongful death. The
amendment provides four years for this change to be in force and effect, and calls for mandatory
reporting when there is recovery under the statute, so that the legislature can later evaluate if this
change should become permanent. Time will tell, but the potential impact of this legislative
change will likely be significant.

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Ralph L. Jacobson

Ralph Jacobson received his law degree from Stanford University in 1969. His concentration has been in personal injury for over 30 years. He has written numerous articles for the CEB Civil Litigation Reporter, a leading professional journal for attorneys.