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Wrongful Death Lawyers

Under California Code of Civil Procedure §377.60, a wrongful death lawsuit may be filed by the personal representative of the deceased’s estate, or by the decedent’s surviving spouse, children or other dependent family members. The damages that are recoverable according to statute are, “under all the circumstances of the case, [such damages as] may be just, but may not include damages recoverable under Section 377.35 [the Survival Statute].” The Courts have interpreted the wrongful death statute to mean that the family can ask for compensation due to loss of support, loss of services, funeral and burial expenses, loss of companionship and sexual cohabitation. However, it is important to note that punitive damages are not recoverable under the wrongful death statute.

Survival Action Under California Law

A survival cause of action can be filed by the estate’s personal representative, or if none has been appointed, by the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Under California Code of Civil Procedure §377.30, a cause of action that survives the death of a person passes to the decedent’s successor in interest and is enforceable by the decedent’s personal representative or, if none, by the decedent’s successor in interest. In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent’s cause of action are limited by statute.

California’s Wrongful Death Law (For A Child)

There are special laws in place that govern this type of legal claim. California law recognizes that parents are entitled to certain damages when a child has died. There are some people who believe the thought of a parent requesting monetary compensation for the loss of their child is offensive. It is clear that no amount of monetary compensation will make of for the tragedy of losing a child. However, California law, under the Code of Civil Procedure Section 377.60 (b), does recognize the basis for this type of legal claim and gives a parent of a child the legal right to pursue the responsible party who caused the death of their child in court. The legal action plays an important part in having the negligent party take responsibility for the tragic harm, and it may also aid in preventing any similar harms from happening to others in the future. The legal action may also serve parents in the grieving process by helping them bring closure to the sad events.

Statute Of Limitation To Bring The Action

Claims made under Code Civ. Proc.Sec. 377.60 have a two-year statute of limitations as provided under Code Civ. Proc. Sec. 335.1, which begins to run on the date of death. (Witkin, 6 Summary of California L., Torts Sec.1198 (9th ed.).) But in a survival action, the statute of limitations starts running on the date the claim actually arose to the deceased, and is sometimes lengthened. (See e.g., Witkin, 12 Summary of California L., Wills and Probate Sec. 491 (9th ed.); see also Code Civ. Proc. Sec. 366.1 (which provides the time limits for the action.)

Who Can File A California Wrongful Death Case?

Only certain people are allowed to file a wrongful death lawsuit in California. The relevant statute specifically allows the following parties to bring a wrongful death claim:

  • The deceased person’s surviving spouse
  • The deceased person’s domestic partner
  • The deceased person’ s surviving children
  • If there is no surviving person in the deceased person’s line of descent, then a wrongful death lawsuit may be brought by anyone “who would be entitled to the property of the decedent by intestate succession”; that can include the deceased person’s parents, or the deceased person’s siblings, depending on who is living at the time of the deceased person’s death,

And, if they can show they were financially dependent on the deceased person, the following people can also bring a wrongful death lawsuit in California:

  • The deceased person’s “putative spouse” and children of the putative spouse
  • The deceased person’s stepchildren, and
  • The deceased person’s parents.

Standard Of Proof In A California Wrongful Death Case

The standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. Because proving a case beyond a preponderance of the evidence (slight tipping of scales) is usually easier than a criminal prosecution (beyond a reasonable doubt), most wrongful death cases are handled in the civil court system.

Recovery Of Economic Damages

There is no cap on economic damages in California. Accordingly, in the example above where the woman supports two children, the children would be entitled to recover for the loss of the comforts, education, and position in society which they would have enjoyed if their mother/wife had lived and retained her income and they had continued to form part of the family.

Practically, this means they are also entitled to;

  • Her lost wages from the time of the accident and her death; and
  • Future lost wages.

A future lost earnings award is allowed for earnings “reasonably certain” to result from the injury and are awarded by the jury in a lump sum. The amount of lost earnings awarded must be based upon present value and not upon speculation about inflation or other unknown factors impacting earning potential. But, obviously, the computation of future lost earnings is not exact and to some degree it invariably requires speculation about the decedent’s life expectancy and expected work experience.

Recovery Of Non-Economic Damages For Death Of An Adult

​​When there is a death of an adult caused by the negligence of another, there are certain non-economic damages that the spouse of the decedent may seek to recovery:

These damages include the following:

  • The loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support, and;
  • The loss of the enjoyment of sexual relations;
  • The loss of Decedent’s training and guidance.

You might be thinking, how is it that a number can be placed on these items and many times it comes down to how much of the above were provided by the Decedent. The better the quality of the relationship between the two, it is likely that the jury will award more for the items that the decedent’s spouse will never be privy to again.

Recovery Of Damages By Parent For Death Of A Minor Child

​Recovery for a minor child is similar but varies just a little.  The following are items both Economic and Non-Economic that are recoverable by the parent for the death of a minor child.  Recovery of Economic Damages include:

  • The value of the financial support, if any, that the minor child would have contributed to the family during either the life expectancy that the minor child had before his/her death or the life expectancy of the parent whichever is shorter;
  • The loss of gifts or benefits that the parent could have expected to receive from the minor child;
  • Funeral and burial expenses; and
  • The reasonable value of household services that the minor child would have provided. ​​​

Non-Economic Damages that a parent may recover for the death of a minor child include the following: The loss of the minor child’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.​


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