A Decedent's Personal Representative or Successor In Interest Can Now Recover the Decedent's Pain and Suffering in a Survival Action
October 8, 2021
On October 1, 2021, Governor Gavin Newsom approved an amendment to § 377.34 of the Code of Civil Procedure, which authorizes a decedent’s personal representative or successor in interest to recover damages for a decedent’s pain, suffering, or disfigurement in an action or proceeding on the decedent’s cause of action.
Before this amendment, § 377.34 specifically excluded any damages for pain, suffering, or disfigurement as recoverable damages in a survival action. However, according to the amendment's sponsors, the amendment removes the restriction on recovering pain, suffering, and disfigurement damages in a survival action and aligns it with a majority of the states in this country.
Therefore, now damages for pain, suffering, or disfigurement may be recovered if: (1) the action or proceeding was granted a trial preference pursuant to Code of Civil Procedure § 36 before January 1, 2022; or (2) was filed on or after January 1, 2022, and before January 1, 2026.
The following plaintiffs qualify for trial preference under Code of Civil Procedure § 36, i.e., having trial set not more than 120 days from the date the motion for trial preference is granted:
- A plaintiff, who is over the age of 70 and whose health is such that a preference is necessary.
- A plaintiff, who is under 14 years old.
- Any plaintiff, who suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months.
This means that any plaintiff, who has a survival action and was granted trial preference before January 1, 2022, can recover pain, suffering, or disfigurement damages.
Moreover, a plaintiff in any survival action filed on or after January 1, 2022 and before January 1, 2026 will be entitled to recover pain, suffering, or disfigurement damages.