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Pain and Suffering Damages Allowed In California Survival Actions

Posted by Renée Yvonne Gardner | Oct 11, 2021

On October 1, 2021, Governor Gavin Newsom signed Senate Bill No. 447 which lets a deceased person's personal representative or successor-in-interest to recover damages for the decedent's “pain, suffering, or disfigurement.”

Prior to this law, which takes effect on January 1, 2022, people who sued on behalf of a deceased person were limited to damages for the decedent's injuries and punitive (exemplary) damages, if applicable. They could not previously due for the decedent's pain, suffering or disfigurement in a survival lawsuit.

A survival action is a lawsuit allowed by California law permitting certain family members of someone killed in an accident to bring claims that their now deceased family member had before death, from the moment of the negligent act that caused the death, and the death itself.

This new law dramatically raises the amount of damages awarded to surviving family members in California survival actions. This increases the potential to demand accountability of wrongdoers, and helps balance the scales of justice for those whose loved ones get killed in accidents.

SB447 amends Code of Civil Procedure § 377.34. This new law applies to lawsuits that were granted a preference under § 60, before January 1, 2022, and those filed on or after January 1, 2022 but before January 1, 2026. It is unknown what the law will allow after January 1, 2026.

If a claimant recovers damages for a decedent's pain, suffering, or disfigurement, they must give a copy of the judgment, or settlement, to the Judicial Council of California within 60 days of obtaining that judgment or settlement. This is a reporting requirement.

The claimant must also submit a cover sheet with three important pieces of information: the date the action (lawsuit) was filed, the date the lawsuit resolved, and the amount and type of damages awarded, including economic damages and damages for pain, suffering and disfigurement. The Judicial Council will transmit this info to the Legislature.

The Legislature will presumably analyze the above cover sheets and their information, to decide whether they should enact further legislation to allow pain and suffering damages beyond the January 1, 2026 deadline.

This new law means that California has joined the 45 other states that let a personal representatives recover damages for a decedent's pain and suffering. 

If your loved one died because of an accident, please reach out to me at (408) 214-5555.

I am Renée Yvonne Gardner. I am an attorney who fights for families when their loved ones pass away due to accidents.

I want to be your voice during this most difficult time in your life.

Hiring me allows you to focus on your grief, freeing you up to address all the unexpected and necessary things you have to attend to during this most unprecedentedly trying and painful time in your life.

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About the Author

Renée Yvonne Gardner

Gardner Law's attorney Renée Yvonne Gardner represents auto accident wrongful death cases, serious personal injuries from auto accidents, slip and falls and dog bites, and assists consumers with disputes (small claims court assistance $12,500 or less claims for goods or services).

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