If you have lost a family member because of the wrongdoing of another, you should consider filing either a wrongful death or survival action lawsuit or both if the circumstances permit. I handle probate matters, including wrongful death and survival lawsuits by personal representatives. To file a lawsuit you may need a probate representative which is a term that includes both “executors” and “administrators.” An “executor” is the person designated in a Will to administer a decedent’s estate. An “administrator” is appointed to administer an estate either when there is no Will, when an executor has not been named in a Will, or when the person named in the Will as executor is unable to act. A probate representative must be appointed by a probate judge in a proceeding filed in the appropriate probate court.

If the lawsuit has been or needs to be filed in another state (for example, the deceased is a resident of California and the wrongdoer has no presence in California and California courts have no jurisdiction over the wrongdoer), you may still need to open a probate estate in California to be appointed as personal representative in order to maintain the action or actions in the other state and/or conduct settlement, etc. As a probate attorney, I can be of assistance should a probate need to be opened to appoint a personal representative.

Distinction Between and Survival Action and Wrongful Death Action

When a loved one dies because of the negligence of another, California law provides for two different types of lawsuits that can be brought against the wrongdoer. One type of lawsuit is known as a “wrongful death” lawsuit and is brought under California Code of Civil Procedure §377.60. The other is known as a “survival action” and is brought under California Code of Civil Procedure §377.30. If you are considering your legal rights because of the untimely death of a family member, it is important to know the difference between the two types of lawsuits and what you are entitled to under each one.

Wrongful Death

Under California Code of Civil Procedure §377.60, a wrongful death lawsuit may be filed by the personal representative of the deceased’s estate, or by the decedent’s surviving spouse, children or other dependent family members. The damages that are recoverable according to statute are, “under all the circumstances of the case, [such damages as] may be just, but may not include damages recoverable under Section 377.35 [the Survival Statute].” The Courts have interpreted the wrongful death statute to mean that the family can ask for compensation due to loss of support, loss of services, funeral and burial expenses, loss of companionship and sexual cohabitation. However, it is important to note that punitive damages are not recoverable under the wrongful death statute.

Survival Action

A survival cause of action can be filed by the estate’s personal representative, or if none has been appointed, by the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate.  Under California Code of Civil Procedure §377.30, a cause of action that survives the death of a person passes to the decedent’s successor in interest and is enforceable by the decedent’s personal representative or, if none, by the decedent’s successor in interest.

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.

Under the prior version of Code of Civil Procedure section 377.34, an action brought on behalf of someone who sustains a bodily injury 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.)

Civil Procedure § 377.34, effective January 1, 2022, 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.

Elder Abuse Act

Notwithstanding California Code of Civil Procedure §377.34, under California Welfare and Institutions Code §15657, decedent’s pre-death pain and suffering are expressly recoverable in a survivor action under the Elder Abuse Act if certain conditions are met. Specifically, the statute provides for heightened remedies, including recovery for the decedent’s pre-death pain, suffering, and disfigurement, to a successor in interest to a decedent’s cause of action “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse . . . in addition to all other remedies provided by law.” (See California Welfare and Institutions Code §15657, subds. (a) & (b).) But it is also expressly subject to the dollar amount limitation of California Civil Code § 3333.2 – a maximum of $250,000 for noneconomic losses in an action for injury against a health care provider based on professional negligence.

Thus, under the Elder Abuse Act, where neglect or abuse of an elder or dependent adult is reckless or done with oppression, fraud, or malice such that the statutory prerequisites are satisfied, damages for the victim’s pre-death pain, suffering, or disfigurement are recoverable in a survivor action pursued by the victim’s personal representative or successor in interest, notwithstanding the usual prohibition on such recovery under Code of Civil Procedure section 377.34. This statutory rule of law does not affect or expand the type of damages recoverable by a decedent’s heir in a wrongful death action in which that plaintiff seeks compensation for his or her own injuries, which are separate and distinct from the decedent’s pre-death injuries for which compensation is sought in a survivor action.

When Successor in Interest May Commence Action

The successor in interest may bring or continue the action directly only if there is no personal representative, either because no probate administration has been opened or because the probate administration has been closed and distribution made. “Successor in interest” means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of property that is subject to a cause of action. Additionally, a decedent’s successor in interest may bring an action if the personal representative cannot be expected to do so. Procedurally, the successor in interest must file a declaration under California Code of Civil Procedure §377.32 that establishes that the decedent died, that no proceeding is pending for the administration of the estate, and that the declarant is the successor in interest or authorized to act on behalf of the successor in interest.

Conclusion

If you have lost a family member because of the wrongdoing of another, you should consider filing either a wrongful death or survival action lawsuit or both if the circumstances permit. To file you may need the appointment of a probate representative. I also handle probate matters and can be of assistance should a probate need to be opened to appoint a personal representative.

If the lawsuit has been or needs to be filed in another state you may still need to open a probate estate in California to be appointed as personal representative in order to maintain the action or actions in the other state and/or conduct settlement, etc. As a probate attorney, I can be of assistance should a probate need to be opened to appoint a personal representative.

While no amount of money will bring back a loved one, strong and competent legal representation may help to offer closure and to ease the financial stress involved after such a loss. I have successfully represented both plaintiffs in wrongful death actions from automobile accidents, etc. To speak with me during a free initial consultation, call me, William K. Sweeney, toll free at 800-575-9610 or locally at 760-989-4820. You can also send me an email by completing an online contact form. As a probate and wrongful death attorney, I represent clients throughout Riverside County, the state of California and others who reside outside the state who require counsel for interests in California.

Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.

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