On October 1, 2021 Governor Newsom approved Senate Bill Number 447 (“SB 447”) amending the California Code of Civil Procedure to permit 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. Like many States, in California a cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest. As previously reported by the Defense Litigation Insider in September 2021 here, prior to the enactment of SB 447, California law limited the damages recoverable in such an action or proceeding 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 recover had the decedent lived. Specifically, California law prohibited the recovery of damages for the decedent’s pain, suffering, or disfigurement in that action or proceeding.

SB 447, now codified as California Code of Civil Procedure (“CCP”) Section 377.34 as amended, 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 if the action or proceeding was granted a specified preference under CCP Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. The amendment requires plaintiffs recovering under this statute to report their awards to the Judicial Council and the Judicial Council will provide this information to the Legislature. We anticipate that after a period of collecting this data the Legislature will revisit whether to maintain CCP Section 337.34 in its current iteration or consider amendments to same.

The new law goes into effect in January 2022 and reads, as amended, in full as follows:

(a) 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 are 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 recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.
(b) Notwithstanding subdivision (a), 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.
(c) A plaintiff who recovers damages pursuant to subdivision (b) between January 1, 2022, and January 1, 2025, inclusive, shall, within 60 days after obtaining a judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages, submit to the Judicial Council a copy of the judgment, consent judgment, or court-approved settlement agreement, along with a cover sheet detailing all of the following information:
(1) The date the action was filed.
(2) The date of the final disposition of the action.
(3) The amount and type of damages awarded, including economic damages and damages for pain, suffering, or disfigurement.
(d) (1) On or before January 1, 2025, the Judicial Council shall transmit to the Legislature a report detailing the information received pursuant to subdivision (c) for all judgements, consent judgements, or court-approved settlement agreements rendered from January 1, 2022, to July 31, 2024, inclusive, in which damages were recovered pursuant to subdivision (b). The report shall comply with Section 9795 of the Government Code.
(2) This subdivision shall become inoperative on January 1, 2029, pursuant to Section 10231.5 of the Government Code.
(e) Nothing in this section alters Section 3333.2 of the Civil Code.
(f) Nothing in this section affects claims brought pursuant to Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of the Welfare and Institutions Code.

Code Civ. Proc., § 377.34 (amendments emphasized).