Contact Us for a Free Consultation 818-394-7835


Survival Action Claims in California

Posted by Inna Gorin | Oct 28, 2022

Wrongful death lawsuits arise from a death that occurred due to another person or entity's negligent, reckless, or intentional behavior. The purpose is to compensate those who lost a loved one and suffered an injury due to that loss.

In other words, when somebody in California is killed due to negligence, recklessness, or an intentional wrongful act, two types of lawsuits may be filed against the responsible party.

Survival Actions Claims in California
California Code of Civil Procedure 377.30 allows survival actions for families after a wrongful death.

First, a “wrongful death” lawsuit primarily compensates the survivors for their losses.  Next, a “survival action” is to compensate the estate for losses the deceased person (decedent) suffered before death. In other words, a survival action is the lawsuit that the deceased person would have been able to bring had they lived.

California Code of Civil Procedure 377.30 authorizes survival actions. Under this law, the right to sue for damages survives the decedent's death, but it does not compensate the family members for their losses.

A survival action is based on the idea that an individual's death should not bar a lawsuit. If a person who suffered injury instead of death could file a lawsuit, an estate should not be banned from filing a similar action.

The damages recoverable in a survival action typically include medical bills, lost wages, and personal property damage.

These are damages sustained after the wrongful act but before the resulting death. It means that a survival action is not possible in situations in which the wrongful act caused instant death.

Suppose the victim survived long enough to suffer some economic damage.  In that case, a survival action claim would be allowed.

Beginning in 2022, California amended its survival action statute. This change could affect how people file wrongful death and survival action lawsuits.

What is the Difference Between Wrongful Death and Survival Action?

Although the two statutes sound similar and share the same inciting event – an individual's death – they vary in purpose.

A wrongful death lawsuit is for the losses a deceased person's family suffers. In contrast, the heirs or representatives of the deceased person's estate file a survival action on behalf of the estate.

Difference Between Wrongful Death and Survival Action
A wrongful death lawsuit is primarily for the losses a deceased person's family suffers.

Another difference between the two is that punitive damages may be awarded in survival actions but never, with one exception, in wrongful death lawsuits.

Remember that wrongful death and survival actions are designed to compensate for losses by different parties. The survival action pays the estate for losses the decedent sustained before death.

On the other hand, a wrongful death lawsuit compensates family members for their own losses sustained as a result of the death.

Thus, the decedent's personal representative must bring a survival cause of action under Code of Civil Procedure 377.30. Suppose the estate does not have a personal representative.  In that case, the decedent's successor could bring the action in interest.

Often, the estate's personal representative will be a member of the decedent's family, but that is not required. Some decedents' estates are represented by a lawyer, a friend, or someone else in their trust or will.

What are the 2022 Changes?

On January 1, 2022, an amendment under Code of Civil Procedure 377.34 to California's survival action statute went into force. This new section allows survivors and representatives to sue for pain and suffering, and disfigurement suffered by the deceased.

This new section is scheduled to be effective for a limited period. It began for actions filed on or after January 1, 2022, ending on January 1, 2026.

Cases filed before this period but have been granted trial preference may also use this new law. Trial preference is granted to those over 70 years of age or who suffer from poor health. Wrongful death and survival actions can be filed separately or combined into a single lawsuit.

Still, regardless of whether they are alleged in one lawsuit, it's essential to remember that they are separate causes of action. They have different requirements, including who can bring each cause of action and the time limit, called the “statute of limitations” for a lawsuit.

Who Can File a Wrongful Death Lawsuit?

Only people with certain relationships with the deceased may file a wrongful death lawsuit. The people most likely to file are:

  • A spouse;
  • Domestic partner;
  • Surviving children;
  • Surviving grandchildren if the children are deceased;
  • Parents or guardians.

If the deceased did have any of the above relatives, the person who can file the lawsuit is who would inherit under intestate succession, which is the legal term for dying without a will. In addition, any person who was financially dependent on the deceased individual may file a wrongful death lawsuit.

Proving Liability 

Similar to other negligence lawsuits, the plaintiff must show that the defendant:

  • Had a duty of care;
  • Failed in that duty of care, whether by action or inaction; and
  • That failure was the proximate cause of the decedent's death

What Damages Can Be Recovered in a Survival Action?

Once a plaintiff proves the defendant's actions caused the death, the question becomes what damages will be awarded. As stated above, punitive damages are seldom awarded in wrongful death lawsuits.

Both economic and non-economic losses may be considered when determining damages. Economic losses may include the decedent's lost income or burial expenses.

Non-economic damages cannot include the plaintiff's pain and suffering caused by the decedent's death. What non-economic damages do cover:

  • Society and companionship;
  • Protection;
  • Affection;
  • Moral support;
  • Training and guidance;
  • Sexual relations.

In other words, what the relationship with the deceased individual provided to a plaintiff. The typical economic damages in a survival cause of action include:

  • Medical expenses the deceased incurred due to wrongful act;
  • Damage to the decedent's property during the wrongful act;
  • Lost wages for descendant between wrongful act and death.

Notably, a wrongful death claim and a survival cause of action both allow recovery for pain and suffering and disfigurement. Punitive damages can be recovered in a survival cause of action.

What About Criminal Charges?

In some situations, wrongful death will also result in criminal charges. A criminal conviction is not required to win a wrongful death lawsuit because of the different standards of proof between criminal and civil law.

Criminal law requires the highest level of proof, which is beyond a reasonable doubt. In comparison, Civil law involves a preponderance of the evidence, which means more likely than not. An individual acquitted of criminal charges may still be found guilty in a civil wrongful death action.

One situation when a criminal conviction matters is when a felony homicide caused the wrongful death. The one exception to the bar on punitive damages is when the defendant in a wrongful death action is convicted of felony homicide. If convicted, a jury may decide to award punitive damages to the plaintiff.

What Are the Time Requirements for Filing?

When filing a wrongful death lawsuit, you generally have two years from the day of your loved one's death. The law creates an exception for the following:

  • Three years for medical malpractice;
  • Six months if the defendant is a public or government entity;
  • If the plaintiff is a minor and the decedent was their parent, the statute of limitations does not begin until the day the child turns 18.

Survivor causes of action begin running at the time of the wrongful act, which is a bit different than a wrongful death action that does not start until the decedent's death.

Contact our Los Angeles personal injury attorneys to help you determine all your legal options against the responsible party to get the maximum compensation you are entitled to. The Injury Justice Law Firm offers a free case consultation and works on a contingency basis, meaning you don't pay any fees unless we win your case.

Related Content:

About the Author

Inna Gorin

Inna Gorin, the founding Partner of Injury Justice Law Firm modeled the Firm after her ideals and principles of what skilled, aggressive and tenacious representation of individual clients should embody. Ms. Gorin's mission is to level the playing field, and provide her clients with the same level...


If you have been injured in an accident, our experienced Los Angeles personal injury attorneys will protect your legal rights and help you recover compensation for your injuries. We are available 24/7 for your risk free initial consultation in Beverly Hills, Encino, Glendale, Hermosa Beach, Lancaster, Long Beach, Los Angeles, Marina Del Rey, Redondo Beach, Torrance, Santa Monica, San Fernando Valley, Valencia and Ventura County areas.