CACI 3903Q Survival Damages (Economic Damage) (Code Civ. Proc., § 377.34)

New May 2019; Revised November 2019, May 2020

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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.

Damages for pain, suffering, or disfigurement are not recoverable in a survival action except at times in an elder abuse case. (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.)

•Survival Damages. Code of Civil Procedure section 377.34.

•“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.)