CACI No. 3919. Survival Damages (Code Civ. Proc., § 377.34)

Judicial Council of California Civil Jury Instructions (2023 edition)

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3919.Survival Damages (Code Civ. Proc., § 377.34)
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant] for the death of [name of
decedent], you must also decide the amount of damages that [name of
decedent] sustained before death and that [he/she/nonbinary pronoun]
would have been entitled to recover because of [name of defendant]’s
conduct[, including any [penalties/ [or] punitive damages] as explained in
the other instructions that I will give you].
[Name of plaintiff] may recover the following damages:
[1. The reasonable cost of reasonably necessary medical care that
[name of decedent] received;]
[2. The amount of [income/earnings/salary/wages] that
[he/she/nonbinary pronoun] lost before death;]
[3. The reasonable cost of health care services that [name of decedent]
would have provided to [name of family member] before [name of
decedent]’s death;]
[4. [Specify other recoverable economic damage.];]
[5. The [pain/ [,/or] suffering/ [,/or] disfigurement] [name of decedent]
suffered before [his/her/nonbinary pronoun] death.]
You may not award damages for any loss for [name of decedent]’s
shortened life span attributable to [his/her/nonbinary pronoun] death.
New May 2019; Revised November 2019, May 2020; Revised and Renumbered from
CACI No. 3903Q May 2022
Directions for Use
Give this instruction if a deceased person’s estate claims survival damages for harm
that the decedent incurred in the decedent’s lifetime. This instruction addresses
survival damages in a claim against a defendant who is alleged to have caused the
decedent’s death. However, survival damages are available for any claim incurred
while alive, not just a claim based on the decedent’s death. (See County of Los
Angeles v. Superior Court (1999) 21 Cal.4th 292, 294 [87 Cal.Rptr.2d 441, 981 P.2d
68].) In a case that does not involve conduct that caused the decedent’s death,
modify the instruction to include the damages recoverable under the particular claim
rather than the damages attributable to the death.
Survival damages can include punitive damages and penalties. (See Code Civ. Proc.,
§ 377.34.) Include the bracketed language in the last sentence of the opening
paragraph if either or both are sought. If punitive damages are claimed, give the
appropriate instruction from CACI Nos. 3940-3949.
If items 1 and 2 are given, do not also give CACI No. 3903A, Medical
Expenses - Past and Future (Economic Damages), and CACI No. 3903C, Past and
Future Lost Earnings (Economic Damages), as the future damages parts of those
instructions are not applicable. Other 3903 group instructions may be omitted if
their items of damages are included under item 3 and must not be given if they
include future damages.
Though damages for pain, suffering, or disfigurement are generally not recoverable
in a survival action (except at times in an elder abuse case), Code of Civil
Procedure section 337.34(b) permits the recovery of these noneconomic damages by
the decedent’s personal representative or successor in interest for those actions or
proceedings filed on or after January 1, 2022, and before January 1, 2026 (or if
granted a preference under Code of Civil Procedure section 36 before January 1,
2022). (Code Civ. Proc., § 377.34; see Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256, 1265 [45 Cal.Rptr.3d 222]; see also instructions in the 3100
Series, Elder Abuse and Dependent Adult Civil Protection Act.)
For actions or proceedings covered by section 337.34(b), and depending on the case,
include item 5 (an item of noneconomic damages) and give CACI No. 3905, Items
of Noneconomic Damage, with a version of CACI No. 3905A, Physical Pain,
Mental Suffering, and Emotional Distress (Noneconomic Damage), that includes
only pain, suffering, or disfigurement. Note that many Sources and Authority below
do not recognize the availability of noneconomic damages as a result of this
temporary change in law. (Sen. Bill 447; Stats. 2021, ch. 448.)
Sources and Authority
Survival Damages. Code of Civil Procedure section 377.34.
Term-Limited Exception for Survival Damages. Code of Civil Procedure section
“In California, ‘a cause of action for or against a person is not lost by reason of
the person’s death’ and no ‘pending action . . . abate[s] by the death of a party
. . .’ In a survival action by the deceased plaintiff’s estate, the damages
recoverable expressly exclude ‘damages for pain, suffering, or disfigurement.’
They do, however, include all ‘loss or damage that the decedent sustained or
incurred before death, including any penalties or punitive or exemplary
damages.’ Thus, under California’s survival law, an estate can recover not only
the deceased plaintiff’s lost wages, medical expenses, and any other pecuniary
losses incurred before death, but also punitive or exemplary damages.” (County
of Los Angeles, supra, 21 Cal.4th at pp. 303-304, internal citations omitted.)
“The first category consists of the reasonable value of nursing and other services
that Decedent would have provided to his wife prior to his death, but was unable
to provide due to his illness (replacement care). Again, [defendant] does not
contest the recoverability of such damages here. Nor did it below. Such damages
are recoverable. (See . . . CACI No. 3903E [“Loss of Ability to Provide
Household Services (Economic Damage)”].)” (Williams v. The Pep Boys Manny
Moe & Jack of California (2018) 27 Cal.App.5th 225, 238 [238 Cal.Rptr.3d
809], internal citations omitted.)
“The second category requires more discussion. That consists of the reasonable
value of 24-hour nursing care that Decedent would have provided to his wife
after his death and before she passed away in 2014, nearly four years later. As
appellants explain this claim, ‘to the extent his children were forced to provide
gratuitous home health care and other household services to [wife] up to the
time of her death, [Decedent’s] estate is also entitled to recover those costs as
damages since he had been providing those services for his wife before he died.’
. . . The parties disagree as to whether such damages are recoverable.
Appellants contend that they are properly recovered as “lost years” damages,’
representing economic losses the decedent incurred during the period by which
his life expectancy was shortened; [defendant], in contrast, contends that they are
not recoverable because they were not ‘sustained or incurred before death,’ as
required by section 377.34. We conclude that [defendant] has the better
argument.” (Williams, supra, 27 Cal.App.5th at p. 238, original italics.)
“By expressly authorizing recovery of only penalties or punitive damages that
the decedent would have been entitled to recover had the decedent lived, the
Legislature necessarily implied that other categories of damages that the
decedent would have been entitled to recover had the decedent lived would not
be recoverable in a survival action.” (Williams, supra, 27 Cal.App.5th at p. 239,
original italics.)
“In survival actions, . . . damages are narrowly limited to ‘the loss or damage
that the decedent sustained or incurred before death’, which by definition
excludes future damages. For a trial court to award “lost years” damages’ in a
survival action - that is, damages for ‘loss of future economic benefits that [a
decedent] would have earned during the period by which his life expectancy was
shortened’ - would collapse this fundamental distinction and render the plain
language of 377.34 meaningless.” (Williams, supra, 27 Cal.App.5th at p. 240,
original italics, internal citations omitted.)
“The same conclusion [that they are not recoverable in a survival action] would
seem to follow as to the trial court’s award of damages for the value of
Decedent’s lost pension benefits and Social Security benefits.” (Williams, supra,
27 Cal.App.5th at p. 240, fn. 21.)
“[T]here is at least one exception to the rule that damages for the decedent’s
predeath pain and suffering are not recoverable in a survivor action. Such
damages are expressly recoverable in a survivor action under the Elder Abuse
Act if certain conditions are met.” (Quiroz, supra, 140 Cal.App.4th at p. 1265.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 27
4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, § 55.21
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 181, Death and Survival Actions,
§ 181.45 (Matthew Bender)
6 California Points and Authorities, Ch. 66, Death and Survival Actions, § 66.63 et
seq. (Matthew Bender)

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