There are four issues to evaluate before deciding whenther to represent a client in a wrongful death case in California.

  1. Does your client have a relationship necessary to pursue a claim?
  2. What other parties have a claiim
  3. Exactly what damages can be sought by whom;
  4. When it comes to the Complaint, what are the causes of action to plead?

Wrongful death actions are strictly statutory in nature. Code Civ. Proc. § 377.60. In a wrongful death action, both economic and non-economic damages are recoverable. But under this statute there is no recovery for punitive damages, and there are no recovery for damages the decedent may have sustained or incurred before death. Code Civ. Proc. § 377.61.

Dependent parents, the surviving spouse, children, and dependent stepchildren (as well as dependent minors residing in the household for at least six months) can always state a wrongful death claim. Code Civ. Proc. § 377.60 permits recovery for these categories of relationship in all circumstances, notwithstanding any intestacy laws. In the event that the deceased has none of these heirs, the law of intestate succession governs. Code Civ. Proc. § 377.60(a); and Probate Code § 6402.

A wrongful death action may be brought by either a statutory claimant or by the personal representative of the decedent. In the event there are numerous persons with statutory entitlement to a potential recovery for wrongful death, not all of whom you can represent without conflict, one should consider the alternative of creating an estate and filing an action in the name of the personal representative as plaintiff. Code Civ. Proc. § 377.60. When proceeds are eventually obtained, laws of succession state that they may be distributed to persons not necessarily sharing in the estate. SeeEstate of Waits(1944) 23 Cal.2d 676, 680. The courts allocation or a settlement can determine the appropriate distribution of any verdict among various heirs. Code Civ. Proc. § 377.61.

Establishing a personal representative as plaintiff can sidestep problems. EG-- one need not then name, as a defendant, any heirs who do not desire your representation. Cf., Code Civ. Proc. § 382. This also simplifies representation by eliminating the potential need to consolidate various legal actions of separate entities, who, when the action is brought in the name of a personal representative, can be brought separately.

Always remember to consider claims for damages beyond potential statutory recovery for decedent’s wrongful death. The decedent’s personal representative (or successor in interest) should please a separate cost of action seeking compensation for punitive damages, lost earnings, property damage, medical bills, or other losses incurred by the decedent before death. Code Civ. Proc. § 377.30; andQuiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.

Prior to 1992 legislation, pursuing such an action necessitated establishing a probate estate in order to have a personal representative appointed. According to Code Civ. Proc. § 377.32, the filing of a declaration by one or more successors in interest, setting forth their entitlement to proceed on the decedent’s behalf is permitted (where the estate is not the named plaintiff). File this declaration with the Complaint, with a copy of the death certificate attached.

Damages for the decedent’s pain and suffering are ordinarily not recoverable at all. See Code Civ. Proc. § 377.34. However the Elder Abuse Act expressly states that such damages are recoverable in a survivor action. Quiroz, 140 Cal.App.4th at p. 1265.

Whether punitive damages can be recoverable in the surviving cause of action is determined by a separate distinction. Under Probate Code § 573 andCode Civ. Proc., § 377.34, punitive damage claims can survive the death of the injured party: but, in most situations, that is true only if the decedent survived the accident, however briefly, or if property of the decedent was damaged or lost before death.Grimshaw v. Ford Motor Co.(1981) 119 Cal.App.3d 757, 829. So it is a good idea to allege, affirmatively, that the decedent survived for an interval of time, and/or that he sustained a loss of property before his death. Otherwise, the Complaint may be subject to demurrer for failure to plead a necessary element of the cause of action.

Considering these issues as you decide whether to accept representation will maximize the possibility of success, and help achieve a successful relationship with your clients.

Andy Gillin is the Managing Partner at GJEL Accident Attorneys in the Bay Area