Senate Bill 447 (“S.B. 447”), which proposes a change to the current California law to allow recovery of noneconomic damages, such as pain and suffering, after a plaintiff dies is headed to the governor’s desk after the state Senate approved amendments by the Assembly.[1] Currently, California Code of Civil Procedure Section 377.34 limits damages solely to economic damages if a plaintiff dies before judgment enters.[2] As amended, the bill attempts to alter Section 377.34 and would no longer exclude noneconomic damages if the cause of action or proceeding was granted a preferential trial date before 2022, or if it was filed between January 1, 2022, and January 1, 2026. The call for change in procedure comes after lobbying from interest groups primarily consisting of plaintiff attorneys, who stand to benefit if this proposed legislation is enacted.

After passing in the state Senate, the Assembly revised the bill to further limit the scope of S.B. 447 and added a reporting requirement for plaintiffs who received noneconomic damages between January 1, 2022, and January 1, 2025. In such cases, the plaintiff must submit to the Judicial Council, the policymaking body of the California courts, the amount and type of damages received. The Judicial Council will, in turn, create a report detailing the information for the state Legislature. On September 3, 2021, the Senate voted in concurrence with the Assembly’s amendments and ordered the bill to be proofread and prepared for Governor Gavin Newsom to either veto or approve.

DISCUSSION

Introduced by California State Senator John Laird (D), S.B. 447 has some compelling arguments in its favor and has received enough votes to advance.  The bill, however, also has dozens of registered opponents with several arguments against it. Proponents of the bill note that most states allow a decedent’s personal representative or successor in interest to collect damages currently barred by Section 377.34, and claim that defendants take advantage of the present law, which contributes to the influx of cases awaiting trial in California. Opponents cite the longstanding rules in California and argue that such changes in legislation are unnecessary, as there are alternative means to recoup noneconomic damages.

While proponents attempt to refute economic concerns that may materialize if the bill is enacted by arguing that similar legislation exists in a majority of states, California, having the fifth largest economy globally, has a complex economic system that may not necessarily be comparable to most states. According to the fiscal impact report by the Assembly Appropriations Committee, the bill could cost state agencies, including Cal Fire and CalTrans, hundreds of thousands, if not millions, of dollars. Additionally, concerns over the impact the bill may have in driving businesses out [3] of California, while not formally addressed by registered opponents, certainly are valid considerations.[4]

Arguments in Support of S.B. 447

There are essentially three arguments made in support of S.B. 447: (1) that California is among the minority of states in the country that prohibit recovery for intangible damages or damages not economic in nature; (2) the current legislation provides a “death discount” that incentivizes defendants to delay trials in bad faith; and (3) the current law creates a burden on the court through these delays.

The first argument presented by the co-sponsors of this bill, Consumer Attorneys of California (“CAOC”) and Consumer Federation of California (“CFC”), states that California is one of only five states that prohibits a decedent’s personal representative or successor in interest from recovering intangible damages. The sponsors argue that this minority status suggests that California’s current legislation is unjust and claim that drawing a line to limit the amount of damages a plaintiff may recover is unfair.  While the proponents of S.B. 447 provided statutes from other states regarding survival damages, the Senate Bill Policy Committee Analysis of S.B. 447 notes that they did not reveal any information regarding how these states’ laws differ from California’s laws in other aspects of survival damages, such as limits to punitive damages which California does not impose.[5] The Committee further describes this prohibition as arbitrary. If a plaintiff dies one day before judgment, pain and suffering damages are not awarded to the plaintiff’s estate, but if a plaintiff dies a day after receiving a judgment, the plaintiff’s estate receives these damages.

The second argument, also made by CAOC and CFC, states that the legislation as it now stands provides a “death discount” to defendants and rewards them when a plaintiff dies. This, they claim, creates an incentive to act in bad faith and delay trials in order to receive such a discount. The co-sponsors add that “unscrupulous defendants take every advantage of these delays, refusing to agree to bench trials and then objecting to virtual trials, in the hopes that the plaintiffs will die before trial.” This appears to be the interests groups’ most compelling argument, as it lays the foundation for their third—that this incentive to delay trials creates a burden on the court system. CFC writes that the existing law serves to protect bad actors, specifically, corporate defendants and insurers who have “despicably . . . sought to exploit the law by purposely delaying court cases in the hopes that the victim will die.” [6] The Senate Bill Policy Committee Analysis addresses these assumptions concerning defendants’ motives, and concludes that the committee “is not privy to, and need not judge, the motives of defense counsel and defendants.” [7] The Committee finds that it is difficult to know the intention behind requests and if a litigation strategy is based on legitimate concerns or purposefully designed to delay trial until a plaintiff dies.[8]

Arguments in Opposition to S.B. 447

There are several arguments made in opposition to S.B. 447, including the economic impact on California should the legislation be enacted, but the most prominent arguments are: (1) intangible damages such as pain and suffering are personal to the plaintiff; (2) intangible damages are not meant to punish the defendant, but compensate the plaintiff and make them whole; (3) other options exist, like accelerating the trial date for ill or elderly plaintiffs; and (4) another cause of action arises that is not available unless the plaintiff dies.

The first argument, made by the California Defense Council (“CDC”), contends that pain and suffering rewards are intended to provide some measure of comfort in the form of compensation to a person who experienced them. The CDC states that, while it makes sense for a decedent’s estate and heirs to collect economic damages on the behalf of the decedent, it does not make sense to do so for intangible damages that are personal to the plaintiff. This argument is noted in the Committee’s analysis to align with the California Supreme Court decision that finds it represents the “Legislature’s reasonable judgment that, once deceased, the decedent cannot in any practical way be compensated for his injuries or pain and suffering, or be made whole.” [9]

The second argument the CDC makes is that damages for pain and suffering are not intended to punish the defendant, but rather to compensate the plaintiff, except in “exceptional cases of willful, despicable conduct.” The CDC argues that even then, California allows a decedent’s estate and heirs to collect punitive damages. The opponents claim that because damages come in essentially two forms, to make a plaintiff whole and to punish defendants for their conduct, compensatory damages in this situation should be limited as it would otherwise be repetitive.

Third, the CDC offers that there are alternative methods in California law to ensure plaintiffs have their day in court. The CDC argues that these methods, such as trial preferences for ill and elderly plaintiffs, make it not only unnecessary, but also unwise to introduce additional recovery by a third party for a plaintiff’s noneconomic harm. Additionally, court involvement to expedite a trial date is preferable, as a defendant would be less likely to arbitrarily delay a trial and plaintiffs may have their day in court.

The fourth and final argument, not made by interest groups but referred to in the Senate Bill Policy Committee’s Analysis of S.B. 447, is that if a plaintiff dies, their loved ones and representatives would have another cause of action available that would not have been if the plaintiff were alive—i.e., a wrongful death action. Although the Committee’s analysis did not fully explore this argument, it purports that it would be unfair to allow a decedent’s estate, heirs, and representatives to recover for pain and suffering because they may now also bring another claim once the plaintiff dies. The damages recoverable in a wrongful death claim may also include pain and suffering personal to these individuals due to the death of the plaintiff. Due to the fact that this cause of action only arises from the plaintiff’s death, allowing for compensation on the plaintiff’s behalf for their personal intangible damages would essentially double the damages recovered should the plaintiff die prior to the entry of judgment.

Other opponents of the bill, such as the Cooperative of American Physicians (“CAP”) and forty other organizations have concerns regarding the scope of the bill. Their arguments are based on a belief that interest groups are taking advantage of the pandemic to pass their agenda, and that the bill should be amended only to include cases that were actually affected by the pandemic. [10]

CONCLUSION

Although S.B. 447 has garnered enough support to advance in both houses, the bill has many registered opponents with several valid arguments against the bill. While the Legislature appeared to be moved by the argument that a prohibition on the recovery of noneconomic damages after a plaintiff dies is arbitrary and not in step with the majority of states, it seems to have failed to consider  how California’s laws differ from other states, and that passage of this bill may allow plaintiffs and their estates a windfall by doubling their recovery.

Governor Newsom has until October 10, 2021 to sign or veto S.B. 447.  In the meantime, it is likely that these same interest groups on both sides of this issue will continue to lobby in an effort to convince Governor Newsom of the wisdom of their position.  It remains to be seen, even if Governor Newsom signs the bill into law, how S.B. 447 may impact case valuation and litigation going forward.

[1] “Bill Text – SB-447 Civil Actions: Decedent’s Cause of Action.” California Legislative Information, 2021, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB447.

[2] “Code of Civil Procedure. Article 3.” California Legislative Information, 2021, https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=&title=3.&part=2.&chapter=4.&article=3.

[3]Schoolov, Katie. “Why Some Tech Companies and Billionaires Are Leaving California.” CNBC, 23 Jan. 2021, www.cnbc.com/2021/01/23/why-companies-are-fleeing-california.html.

[4] “California Proposed Trial Damages Change Threatens Businesses.” The National Law Review, 10 June 2021, www.natlawreview.com/article/california-proposed-trial-damages-change-threatens-businesses.

[5] “Bill Status.” California Legislative Information, 2021, https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=202120220SB447.

[6]Clark, Thomas. “Bill Analysis.” California Legislative Information, 22 Apr. 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

[7]Clark, Thomas. “Bill Analysis.” California Legislative Information, 22 Apr. 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

[8] “Bill Analysis.” California Legislative Information, 25 June 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

[9] “Bill Analysis.” California Legislative Information, 25 June 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

[10] “Bill Analysis.” California Legislative Information, 25 June 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.