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:

1. A plaintiff, who is over the age of 70 and whose health is such that a preference is necessary.
2. A plaintiff, who is under 14 years old.
3. 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.