Survival Action v. Wrongful Death Action – What is the Difference?

Death Certificate
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Losing your loved one will be a tragic experience for your entire family. But when a careless person’s negligence kills your loved one, you will experience a range of emotions, including grief, sadness, angering even the most peaceful person (Read more). If you act on your dark desire for vengeance, you and your family will face even more severe legal, emotional and financial tolls. Bereaved, justice-seeking survivors and heirs will be restricted to pursuing civil money damages from the killer or their estate. The state decides the killer’s physical punishments, assessments, and penalties.

When someone’s negligent conduct kills a close family member, the survivors can file two types of California Superior Court civil law claims against the person or persons wrongfully causing the death.

Survivors seeking money damages reimbursement compensation will file a (1) Wrongful Death Action, and the decedent’s authorized personal representative can bring a (2) Survival Action.

Both lawsuits allow survivors to pursue claims, but each has significant differences, purposes, and financial recovery mechanisms. You must understand the differences between a wrongful death claim and a survival action. But your decision-making process will be difficult, your judgment clouded with grief from mourning. Your life will become tough. And your negative feelings will be magnified knowing your loved one died by the hand of a negligent party or parties.

Michael Ehline, Los Angeles wrongful death attorney, will discuss these California state law causes of actions, which are statutory creatures, interpreted by judge-made stare decisis, and included in the California Survival and Death Jury Instruction below.

Table of Contents:

  1. The Two California Statutes At Play In A Nutshell

  2. Differences And Similarities Survival Action And Wrongful Death Actions?

  3. Wrongful Death Action Under California Law

  4. What Is A Wrongful Death?

  5. More About Wrongful Death Actions

  6. Who Can Maintain A Wrongful Death Lawsuit?

  7. What Losses Are Included As Recoverable Wrongful Death Damages?

  8. What Is A California Survival Action?

  9. Who Can File A California Survival Action?

  10. What Damages Are Allowed Under The California Survival Laws?

  11. What Is The Standard Of Proof For Wrongful Death Lawsuit and Survival Action Damages?

  12. Contrast The Criminal Case Evidence Standard For A Conviction

  13. Claims That Survive Death – What Parties Can Sue A Survivor’s Estate?

  14. What Were The Common-Law Rights Of Wrongful Death – Or Survivor’s Action Recovery?

  15. What Are Some Common Causes Of Death And Negligent or Accidental Killings?

  16. Car accidents Are Major Causes Of Wrongful Death Lawsuits?

  17. What Is The Statute Of Limitations For Bringing A Wrongful Death Claim Or Survival Civil Action?

  18. Possible Exceptions to The Above Statute of Limitations (SOL)?

The Two California Statutes At Play In A Nutshell:

  1. Wrongful death statutes allow survivors or beneficiaries of the dead person’s estate to receive a money damages award for their own losses (i.e., people who suffered financially and their OWN losses (See Code Civ. Proc. Sec. 377.60 et seq.)
  2. Survival statutes will allow the decedent’s personal representative or, if none, the decedent’s successor in interest, to recover enumerated damages decedent sustained or incurred before dying, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived.” The estate will be barred from damages recovery for the lifeless person’s own suffering, pain, bodily disfigurement, or emotional trauma. General damages such as this will expire with a living plaintiff’s unanticipated death. (Information found in a Coroner’s report or official death certificate). (Code Civ. Proc. Sec. 377.30-377.34 et seq.)

Can You Show Me Some Differences And Similarities Survival Action And Wrongful Death Actions?

The primary distinctions are:

  • The decedent’s estate will seek survival action damages distinct and mutually exclusive from those paid for wrongful death and vice versa. (expired person’s pain, and suffering damages, including punitive damages, are recoverable in survival actions).
  • The people entitled to receive these damages may seek different theories of recovery.
  • The dead person’s personal representative must commence survival action litigation.
  • The dead’s closest living relatives may commence wrongful death litigation. 
  • The statute of limitations to sue a defendant may expire for differing parties at differing time periods.

Now you know some CCP 377.60 wrongful death action distinctions when comparing an estate’s survival claim filed utilizing section 377.30. Here is everything researchers and victims must understand about these actions.

Do I Have A Wrongful Death Action Under California Law?

You, as the dead victim’s survivor, may have wrongful death claims, determined on a case by case basis!

*A wrongful death action is a process a plaintiff will follow to invoke the wrongful death statute as a basis for this plaintiff recovering an award of monetary damages.

What Is A Wrongful Death?

The three “elements of the cause of action for wrongful death are [1] the tort (negligence or other wrongful act), [2] the resulting death, and [3] the damages, consisting of the pecuniary loss suffered by the heirs.” [Emphasis] (See e.g., Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968).

  • Death claims are typically brought by the survivor filing an insurance claim with the defendant’s liability insurer. 
  • A wrongful death lawsuit will normally be filed in a local California Superior Court if parties fail to make a good faith settlement resolution or accord.
  • Wrongful death law is a subspecies of tort law. This statute allows a living dependent or beneficiary to receive a compensation award for a close family member’s negligent killing.
    The wrongdoer must pay the survivors for their losses arising from the negligently caused homicide.
  • This will be the outcome of a successful, winning wrongful death claim. 
  • A winning negligent killing lawsuit will require a preponderance of proof, including fault and fair award payment amount evidence. (CACI and BAJI Instructions will help you understand).

More About Wrongful Death Actions

California wrongful death law presents several common questions, such as:

  • Who can file a wrongful death lawsuit?
  • What people can be wrongful death plaintiffs?
  • What types of damages will pay a wrongful death plaintiff?

What Persons Can Maintain A Wrongful Death Lawsuit?

The chosen personal representative of the decedent’s estate must file the lawsuit. Their closest surviving relative will normally file a wrongful death action, with a wrongful death lawyer acting as the personal representative’s proxy. But larger families will take a vote determining who the family’s personal representative should be, assuming the deceased left no testamentary documents, excluding an estranged family member. 

In any case, surviving family members argue over or fail to select a personal representative; courts will use a common-sense lead litigant selection process while applying the statute.

Many potential wrongful death plaintiffs are mentioned under Code of Civil Procedure Section 377.60 and described below.

  • Surviving spouse 
    • But NOT A former spouse: A former spouse will be disallowed from presenting a wrongful death claim, even when the departed was paying court-ordered spousal support. (Villacampa v. Russell (1986) 178 Cal.App.3d 906).
    • Unmarried Couples: With exceptions, cohabitating people and those who fail to establish a legal marriage or registered domestic partnership will be barred. (Garcia v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 893; Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 158 [Meretricious spouses will never be entitled heirs. They are barred from recovering damages unless they can prove their marriage valid, or tender some testamentary document not sexual in nature.] (See also Nieto v. City of Los Angeles (1982) 138 Cal. App.3d 464, 470 [fiancée was denied recovery]).
    • Putative spouse: A putative spouse is a surviving spouse “found by the court to have [objectively] believed in good faith that the marriage to the decedent was valid.” (Code of Civil Procedure Section 377.60(b); Welch v. State of California (2000) 83 Cal.App.4th 1374, 1377-1379). A putative spouse” who depended on financial support from the now lifeless victim may present a death claim. (Code of Civil Procedure Section 377.60(b)).
    • SPECIAL Problem – Common law and foreign law unions: California upholds foreign marriages contracted in another jurisdiction, state, or country. Hence, “A common law marriage contracted in a state of the United States that recognizes common-law marriages is just as valid as a ceremonial marriage.” (Code of Civil Procedure Section 377.60(a); (Rosales v. Battle (2003) 113 Cal.App.4th 1178, 1183-1184). However, California refuses to recognize California initiated common-law marriages.
    • Domestic partner – Homosexuals may be domestic partners holding the same rights as a legally, traditionally married person.
  • Children and their issue (aka lineal descendants) have wrongful death action lawsuit rights. (See Code of Civil Procedure Section 377.60(a)).
    • Adopted children:  Decedent’s adopted children may also present a wrongful death claim. (See Arizmendi v. System Leasing Corp. (1971) 15 Cal.App.3d 730).
    • But adopted children remain barred from suing for their biological parent’s death. (See Phraner v. Cote Mart, Inc. (1997) 55 Cal.App.4th 166, 169-171).
  • Special Problem – if the decedent had no surviving spouse, domestic partner, issue, or a person identified during testamentary succession, other people may inherit lawsuit rights, including:
    • Dependants not qualified under subdivision (a) could file a wrongful death lawsuit if they depended on the lost one.
    • What is a dependant? “Dependence refers to financial support.” A dependant is a person “actually dependent, to some extent, upon the late person for the necessaries of life.” (i.e., financial upkeep) “which aids them in obtaining the things, such as shelter, clothing, food, and medical treatment, which one cannot and should not do without.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1445, 1447; Hazelwood v. Hazelwood (1976) 57 Cal.App.3d 693, 697-698).
    • Putative spouse (discussed above).
    • Children of a putative spouse.
      • Children born out of wedlock are “illegitimate” children. But these offspring may present a wrongful death claim upon paternity having been court-ordered upon certification by clear and convincing evidence. (See Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal.App.4th 855, 866-877).
      • Foster children:  A foster child, or other minor having lived with the departed, may bring a wrongful death claim, but only if they were “dependent” on them as defined by Code of Civil Procedure Section 377.60(b).
      • Other Minors dependent on the decedent will be eligible if, “at the time of decedent’s death, the minor resided for the previous 180 days in decedent’s household and, further, was dependent on decedent for at least one-half of his or her support.” (See Code of Civil Procedure Section 377.60(c)).
    • Stepchildren of the legitimate or putative spouse (defined above) are eligible wrongful death claimants, but only if they too were dependent on the departed one. (See Code of Civil Procedure Section 377.60(b)).  
    • Parents: Generally, parents can recover wrongful death damages when the deceased person left no surviving children or if decedents parents depended on them. (See Code of Civil Procedure Section 377.60(a) and  § 377.60(b); Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1440-1444; Probate Code § 6402(b); Lozano v. Scalier (1996) 51 Cal.App.4th 843, 845-849).
    • Putative parents will not be considered the deceased’s natural parents. These individuals will maintain no wrongful death lawsuit rights from an unadopted child’s homicide, “even if an adoption process was in progress,” absent some testamentary document (Reynolds v. City of Los Angeles (1986) 176 Cal.App.3d 1044, 1052-1053).

What Losses Are Included As Recoverable Wrongful Death Damages?

Damages allowed in a wrongful death case will largely depend upon the age and social status of the dead and the surviving victim. For example, Vanessa Bryant filed a California civil lawsuit, and she is currently litigating over Kobe’s death. (See CACI No. 3921 – Wrongful Death of an Adult; [CACI pain and suffering]). Also, Vanessa seeks to recover damages from her loss of Gianna Bryant, her minor child. (See also CACI 3922 – Damages for Wrongful Death of a Child). 

Your financial or pecuniary loss will be included as wrongful death payments. (See McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, 1231-1232). The damages … fall into two categories called: 

  1. Economic damages, and 
  2. Non-economic damages.

1. Economic Damages: 

  • The financial support, if any, the dead person would have contributed to the family during either the life expectancy that decedent had before [his/her] death or the life expectancy of the plaintiff, whichever is shorter;
  • The loss of gifts or benefit that plaintiff would have expected to receive from the departed;
  • Funeral and burial expenses; and
  • The reasonable value of household services that the departed would have provided.

2. Non-economic Damages:

1. The loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support;

2. The loss of the enjoyment of sexual relations;

3. The loss of decedent’s training and guidance.

In determining plaintiff’s loss, the jury must NOT consider PAIN AND SUFFERING:

 1. …plaintiff’s grief, sorrow, or mental anguish;

 2. …decedent’s pain and suffering; or

 3. The poverty or wealth of plaintiff.

General emotional trauma is not a loss for which a defendant must pay a plaintiff compensation, and the trial judge will admonish jurors to ignore plaintiff or decedent’s pain, suffering, grief, or sorrow.

  • SPECIAL PROBLEM – An unborn child’s death is not a compensable loss under California. A fetus is not a person within the meaning of California’s wrongful death statute until there has been a live birth.” (Justus v. Atchison (1977) 9 Cal. 3d 564, at 579-580). No “wrongful death” action exists to compensate an unborn fetus’ death. (However, the mother may file her own lawsuit. She can sue the killer. But her action will lie for medical negligence damages. Her damages will stem from losing her baby and related emotional distress). (Zavala v. Arce (1997) 58 Cal.App.4th 915, 927-933). (CACI No. 3921 – DAMAGES).
  • SPECIAL PROBLEM Proposition 213 (No General Damages Awarded to Uninsured Vehicle Owners/Drivers) Although non-economic damages generally may be recovered in wrongful death actions, Civil Code § 3333.4 denies non-economic damages for uninsured vehicle owners, including drivers, and some others. 
  • Civil Code § 3333.4 will not prevent the plaintiff from recovering non-economic wrongful death damages, but only heirs of the uninsured vehicle owner or operator killed while driving the uninsured vehicle may recover.
    • Rationale:  Proposition 213 was created to punish uninsured motorists, not to punish their innocent heirs. (Horwich v. Superior Court (1999) 21 Cal.4th 272, 280). *However, if the heir seeking wrongful death damages was the uninsured vehicle’s owner/operator, noneconomic damages may not be recovered by that “particular” heir. (Horwich, supra, 278).
  • The wrongful death damages primarily sought by survivors will be for loss of future support to dependent family members, included as plaintiff’s economic damages award.
    How Do I Prove My Wrongful Death Support Damages?
    For survivors to be awarded damages for loss of support, these family members must prove:
    • The deceased supported him/her financially.
    • The amount of the support. 
    • Minor children will receive loss of support through age 18 and generally for college if they can prove that the deceased would have contributed to the child’s college education. 
    • A widow would have received loss of support until the deceased’s presumed retirement age (usually 65). A widower would have received loss of support, and he can prove it. Parents or other relatives can also receive damages for loss of support if they can prove the departed had supported them.

    Expert witnesses, including financial planners, will regularly valuate these damages.

    • Wrongful Death Loss of Consortium?
      Depending on the state, the deceased’s spouse may be entitled to receive damages for loss of consortium and a separate award of damages for loss of the deceased’s services around the house. 
    • How Do I Receive Damages for Loss of Decedent’s Guidance?

    The deceased’s children might be entitled to wrongful death damages for loss of guidance and nurture (this is exactly what it sounds like). The survivors may recover the dead person’s funeral, memorial/burial expenses *(Some jurisdictions may consider these “survival damages“). 

    What Is A California Survival Action?

    • Survival Claims Belonged to The Dead Victim!

    A survival action is a process a decedent’s estate or official representative will follow to invoke the survival statute as a basis for recovering an award of specific monetary damages either in or out of court. 

    The dead person’s personal injury and related survival action claims will pass to their [decedent’s] estate, and their beneficiaries will typically receive net amounts after creditors like hospitals, secured and unsecured debt like funeral home contracts are paid off from estate proceeds. 

    Several common questions present themselves under California survival action law, such as:

    • Who can file a survival action lawsuit?
    • What types of damages are available to pay a survivor’s estate?
    • Who can sue a survivor’s estate?
    • What are the time limits to sue?

    Who Can File A California Survival Action?

    Only the Probate Court can appoint a personal representative after filing a Petition for Probate and notice to the interested persons. A survivor’s lawsuit will normally be filed in a local California Superior Court if parties fail to make a good faith settlement resolution or accord. A cause of action that survives the person’s death will pass to the decedent’s successor in interest, enforceable by the “decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code of Civil Procedure Section 377.30).

    Wrongful death distinguished: Only people mentioned in the statute will be entitled to recover wrongful death damages under section 377.60. Any person capable of receiving an inheritance, mentioned in a will or trust may be a survivor. This person might be entitled to portions of the decedent’s estate. (See, e.g., California Code of Civil Procedure Section 377.30 (claims passed to the dead one’s successors in interest.)).

    What Damages Are Allowed Under The California Survival Laws?

    California’s survival laws will generally allow the estate to receive money damages the deceased incurred from their injury until their death. (See also CALIFORNIA LAW REVISION COMMISSION PDF (1960)).

    In the typical survivor’s 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.” (California Code of Civil Procedure Section 377.34).

    In particular, job-related fringe benefits the dead person would have provided are a major component of survival actions. These are called economic, or special damages. General damages are typically barred as losses.

    But their estate can recover medical expenses and lost earnings incurred by the deceased before death. Sometimes the estate’s representative will seek and win an award of exemplary or “punitive damages.”

    • Accumulations v. Investment Calculations

    These statutes can increase confusion, especially when you seek special damages elements referred to as “loss of accumulations to an estate” and “investment accumulations.” 

    1. “Loss of accumulations to an estate”: Loss of accumulation damages are designed to pay the estate, covering lost assumed estate value increases that would have kept growing had decedent lived. (Ex: Kobe Bryant lost many commercial sponsors upon his death. Bryant’s estate value is now decreased in value).
    2. “Investment accumulations” are the decedent’s expected annual investment accumulations. For example, the departed’s lost stock market gains are considered damages because these investments would have grown if the defendant had not killed the deceased.

    Decedent’s estate under all cases will be entitled to recover all damages listed in California Code of Civil Procedure Section 377.61.

    1. Pain and Suffering Exception: Decedent’s pain and suffering are recoverable in a survival action filed under the Elder and Dependent Adult Abuse Civil Protection Act (EDACPA), assuming conditions precedent are satisfied. (See Welfare & Institutions Code Section 15657(a) & (b)).

    What Is The Standard Of Proof For Wrongful Death Lawsuit and Survival Action Damages?

    The general negligence standard of proof for both actions will be based upon the:

    • Civil preponderance of evidence standard.

    But if plaintiff filed mixed bag claims for fraud or punitive damages, 

    • The plaintiff must present Clear and Convincing Evidence. 

    So if you were to look at a scale, the civil case preponderance of proof standard would be a slight tilt of the scale in your favor. But a punitive damages claim will require the presentation of clear and convincing evidence, mandating a greater tip of the justice scale.

    Contrast The Criminal Case Evidence Standard For A Conviction

    For crimes, you can be locked away in city, county, state, or federal prison. Because you risk jail-time, courts will employ a higher standard of evidence called “beyond a reasonable doubt standard.” Of note, O.J. Simpson won his criminal murder trial. But another jury held O.J. accountable. The civil jury saw evidence that criminal judge Lance Ito had excluded. This evidence clearly established that O.J. Simpson had killed Ronald Goldman.

    NOTE: Plaintiffs must follow the civil rules requiring clear and convincing evidence to seek extraordinary damages award amounts. Judges often say this burden is higher than the civil preponderance of evidence standard, with CACI indicating it falls underneath the heightened criminal guilt “beyond a reasonable doubt standard.”

    Claims That Survive Death – What Parties Can Sue A Survivor’s Estate?

    Your wrongful death award is normally yours, but many people suffering an accidental death will leave behind unpaid debts. You are not always responsible for paying the dead one’s creditors unless you secured a community debt. Generally, creditors seeking monies owed will file claims against the decedent’s estate.

    • Examples Of Claims Surviving A Death

    A person who dies will have their assets, including bank accounts, possessions, and real property, transferred into their “estate” as a matter of probate law. A creditor’s lawsuit to set aside fraudulent, unduly influenced property transfer, property recovery, elder abuse case, Title 42 U.S.C. § 1983 civil rights claim, post-judgment marital dissolution, including property rights, spousal or child support, court fees, and other costs are examples of creditor claims surviving death.

    • Examples of Claims Expiring Upon Death

     Decedent’s pain and suffering damages are an example of damages that will not survive death. Other claims not surviving a death will include decedent’s marital dissolution claim during the pre-judgment phase, invasion of the right to privacy claims, punitive damages claims, emotional distress claims. (See also CACI No.’s 3940, 3945, 3947, 3948).

    • Understanding Probate and Survival Actions

    Upon a person’s death, a court will use a legal process to pay your creditors. This is the probate process used to distribute your estate’s remaining assets. The legislature has authorized statutory time periods for creditors seeking to file claims against your estate, ranging from a few months to several years.

    However, decedent’s funeral expenses will normally be priority payment items. Next, your estate’s administration fees, followed by taxes owed, will be covered. Hospital and medical bills will be included as priority payment items in California State. Still, as noted, not all assets will be counted as part of a dead person’s estate.

    • We will address the historical distinctions with a wrongful death lawsuit next. 

    What Were The Common-Law Rights Of Wrongful Death – Or Survivor’s Action Recovery?

    Historically, no lawsuit existed allowing survivors or personal representative of the estate to obtain compensation for an accidental mortality claim under our English “common law” system. Instead, early courts adhered to the maxim: “actio personalis moritur cum persona,” meaning torts expired with the victim’s death or tortfeasor.  (Survival of Actions Brought under Federal Statutes. (1963). Columbia Law Review, 63(2), 290-305. doi:10.2307/1120813). 

    Early legal scholars explained that death claims died with the decedent(s). A personal injury claim only held the wrongdoer monetarily accountable for a live victim, so killing the victim made more sense to avoid financial repercussions. But these negligent killings prompted generations of families to seek revenge.

    However, ex contractu claims, including certain torts like conversion, survived death, meaning that estates could enforce and be enforced upon in certain cases involving an injury. Undoubtedly, Scottish jurisprudence influenced modern North American damage action claims on behalf of the deceased who died during the performance of a contract. (See James v. Christy (1853) 18 Mo. 162, distinguished here).

    • English Common Law and “Pound of Flesh” Revenge

    Early America adopted the no monetary recovery for death English common law rules. After all, we were an English colony. The early American Hatfields and McCoys blood feuds are included as examples where the evil-doer facing criminal confinement or punishment also escaped civil court justice.

    • Enactment of Wrongful Death And Survival Statutes to Avoid Revenge Killings

    More progressive states realized that eye for an eye was not working. Ultimately, most American states condemned this unfair, dangerous legal loophole allowing wrongdoers to escape financial repercussions. Many legislatures enacted “wrongful death” and “survival” statutes intending to prevent revenge killings. Modernly, most states offer some form of wrongful death recovery. These sovereigns will follow general tort law guidelines, each state passing its own exclusive “wrongful death” claim or “survival” action statute.

    What Are Some Common Causes Of Death And Negligent or Accidental Killings?

    Death is an inevitable process that will eventually occur in all human organisms, and since the early 21st century, at least 150,000 humans have died every day worldwide.

    Some phenomena commonly causing or leading to natural death will include: 

    • Aging, 
    • Genetic diseases including cancer, 
    • Physiological or organ failure.

    But sometimes, another person’s inattentiveness or outright murderous conduct will lead to death caused by:

    • Predation, 
    • Food, or chemical poisoning, 
    • Malnutrition, 
    • Starvation, 
    • Dehydration (like cases of elder abuse), 
    • Disease, 
    • Suicide (constant harassment by a person or being released by a drug rehab center too early, etc.), 
    • Homicide, 
    • Asphyxia, 
    • Drowning, 
    • Serious burns, 
    • Drug overdose or intoxication, 
    • Electrocution, 
    • Intense heat or cold, 
    • Radiation toxicity (a known cause of cancer), 
    • Warfare, 
    • Terrorist attacks, including bombings, as well as explosions, 

    Car accidents Are Major Causes Of Wrongful Death Lawsuits?

    Yes, they are!  Car accidents on freeways and roads can cause significant trauma, resulting in fatal injuries. As you already know, when someone wrongfully kills someone on a motorcycle or runs over a person walking in a crosswalk, the negligent motorist, or a person negligently entrusting the vehicle, can be held criminally responsible and civilly liable in a court of competent jurisdiction.

    What Is The Statute Of Limitations For Bringing A Wrongful Death Claim Or Survival Civil Action?

    Date of Death: The SOL cannot commence until death. (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 289-295; Larcher v. Wanless (1976) 18 Cal.3d 646, 659).

    • Generally, wrongful death claims made under Code of Civil Procedure Section 377.60 will be afforded a two-year statute of limitations under Code of Civil Procedure Section 335.1 for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” (See, e.g., Code of Civil Procedure Section 335.1). (Witkin, 6 Summary of California L., Torts Sec.1198 (9th ed.)). However, special circumstances will exist where a different SOL time limit will be utilized for your legal action.

    Your wrongful death action SOL clock will begin its two-year countdown as soon as your loved one passes away (not from the act or injury causing death): “For it is only on the date of death that a wrongful death cause of action becomes complete with all of its elements.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 80-81). The death statute will only authorize a lawsuit if there is a death. Sometimes an expiration date later than actual death may be authorized to join a claim. (See below).

    • Survival Claims under Code of Civil Procedure Section 335.1 will generally be governed by the traditional two-year limitations period. Generally, survival action claims will begin when death arises, decreasing or lengthening in time, case by case. (See, e.g., Witkin, 12 Summary of California L., Wills, and Probate Sec. 491 (9th ed.); see also Code of Civil Procedure Section 366.1). (which provides the time limits for the action).

    What About Other Wrongful Death Suits?

    • Medical Malpractice Wrongful Death SOL: For example, Code of Civil Procedure Section 340.5 established by the Medical Injury Compensation Reform Act of 1975 (MICRA) states among other things:
    • “In an action for injury or death against a health care provider based upon…professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” The word “injury” here means and refers to “both the negligent cause and the damaging effect of the alleged wrongful act.” (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46,54.
    • State Government SOL: Wrongful death claims seeking damages from government defendants, including California, or Los Angeles agencies or agents, will afford parties merely six months from or “relating to … injury to person or to personal property.” (See California Government Code §911.2; DeVore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 454).

    Times To Sue Remaining Unique to Survival Actions?

    If the plaintiff dies before the applicable limitations period is extinguished, an action may be commenced before later of the following times expire:

    (a) Six months after the person dies.

    (b) The standard time limitations period that would have applied if no one had died. (Code of Civil Procedure Section 366.1).


    Because SOL issues will be complicated, including local and state court rules, and cases interpreting these rules could be misunderstood, causing your to blow the statute unless another exception can extend it. But don’t just rely on this article, do your research.

    Possible Exceptions to The Above Statute of Limitations (SOL)?

    • The SOL period applies to each person making claims separately under Code of Civil Procedure Section 377.60, and if the SOL has run, any new claimant will be time-barred from filing suit. (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1551-1553; Andersen v. Barton Memorial Hospital, lnc. (1985) 166 Cal.App.3d 678, 681, 684). 
    • But if the estate’s administrator listed the wrong claimants (heirs), they have the authority to amend the complaint, “relating them back” as the proper plaintiffs named in the original lawsuit. (See Mayo v. White (1986) 178 Cal.App.3d 1083, 1091–1092).


    For humans, death will always remain a sad or unpleasant occasion. 

    If you lose someone’s affection after the termination of social and familial bonds, you will experience:

    • Anxiety,
    • Grief,
    • Sorrow,
    • Emotional pain,
    • Depression and more.

    If you are with the deceased person on their death’s bed, you will feel sympathy, compassion, solitude, or Saudade. And the dying person’s feelings will be magnified when they come from a religious culture that seeks an afterlife. These are people who believe they will either be judged or rewarded for their good deeds, or they will receive punishment for their sins, potentially increasing their fear of death, known scientifically as “necrophobia.”

    A Los Angeles wrongful death attorney such as Ehline Law’s charismatic lead counsel, Michael Ehline, will help you better understand your case. You deserve to know what damages can and cannot be compensated, as well as protect your rights.

    Get A Free Personal Injury Case Consultation Today!

    You must immediately seek a free initial consultation and legal advice from a top-notch California lawyer. Don’t do this by yourself. When big companies and the government defend against wrongful death claims, these practitioners will file motions to strike, demurrers, and other pleadings to try and dispose of your financial compensation claims. And these litigators will mail you targeted discovery questions and depose you to undermine your remaining claims in these types of cases and types of claims.

    We hope you enjoyed this article describing the similarities and differences between wrongful death actions and survival claims. We invite you or the estate’s representative to learn about our law firm’s impressive track record. Let’s see if we are fit for an attorney-client relationship today. Click our below contact form, or call our Los Angeles personal injury attorney at (213) 596-9642.

    Do you need to schedule an appointment for legal advice in a city near you? Reach out to a California personal injury lawyer specialist near you at another location as follows: Torrance wrongful death lawyer, Torrance car accident lawyer, Best Torrance motorcycle accident lawyer

Ehline Law Firm - Personal Injury Attorneys, APLC
Attorney at Law

Michael P. Ehline Esq,

Downtown Los Angeles Corporate Offices

Downtown Los Angeles Office
633 West 5th Street #2890
Los Angeles, CA 90071

Ehline Law Firm - Personal Injury Attorneys, APLC
Attorney at Law

Michael P. Ehline Esq,

Other Los Angeles County Meeting Places

Long Beach Office

5001 Airport Plaza Dr Ste 210
Long Beach, CA 90815
(562) 731-0668

West Hollywood Office

8752 Holloway Drive Ste 304
West Hollywood, CA 90069
(424) 666-3944

Santa Monica Office

201 Wilshire Blvd. Fl 2
Santa Monica, CA 90404
(310) 237-6218

Torrance Office

3961 CA-1
Torrance, CA 90505
(424) 999-7246

Marina Del Rey Office

4640 Admiralty Way Ste 500
Marina del Rey, CA 90292
(310) 331-8775

Hermosa Beach Office

633 West 5th Street #2890
Los Angeles, CA 90071
(213) 596-9642

Beverly Hills Office

509 S Beverly Dr
Beverly Hills, CA 90212
(424) 666-3967

Glendale Office

655 N Central Avenue
Glendale, CA 91203
(818) 485-2311

Inland Empire Meeting Places

Rancho Cucamonga Office

8333 Foothill Blvd #200
Rancho Cucamonga, CA 91730
(909) 963-0709

Riverside Office

11801 Pierce St, Ste 200
Riverside, CA 92505
(951) 777-2877

San Bernardino Office

198 North Arrowhead Ave. #20
San Bernardino, CA 92408
(909) 693-5417

Orange County Meeting Places

Costa Mesa Office

600 Anton Boulevard #11
Costa Mesa, CA 92626
(949) 891-0357

Laguna Niguel Office

23046 Avenida de la Carlota, Ste 600
Laguna Beach, CA 92651
(949) 371-8350

Irvine Office

9180 Irvine Center Drive
Irvine, CA 92612
(949) 207-7193

Newport Beach Office

5160 Birch St #110
Newport Beach, CA 92660
(949) 891-0127

Orange Office

333 City Blvd. #17
Orange, CA 92868

Other California Meeting Places

Rancho Cucamonga Office

1999 S Bascom Ave, Ste 700
Campbell, CA 95008
(408) 940-3996

San Francisco Office

50 Francisco Street #460
San Francisco, CA 94133
(415) 684-7688

Carlsbad Office

1902 Wright Pl, Ste 200
Carlsbad, CA 95008
(760) 517-9022

Ehline Law Firm - Personal Injury Attorneys, APLC
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Ehline Law Firm Personal Injury Attorneys, APLC