§ 377.34.Damages Recoverable

Section 377.34 is the damages rule for the decedent's own cause of action -- the survival action commenced or continued under this article, as distinct from a wrongful death action the decedent's heirs bring for their own losses under § 377.60. In a survival action, recoverable damages are limited to the loss or damage the decedent sustained or incurred before death, plus any penalty or punitive or exemplary damages the decedent would have been entitled to recover had the decedent lived. Damages for pain, suffering, or disfigurement are not recoverable in a survival action under the general rule of subdivision (a).

Subdivision (b) creates a temporary exception to that pain-and-suffering bar. Pain, suffering, or disfigurement damages become recoverable if the action was granted a trial preference under § 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. A plaintiff who recovered such damages between January 1, 2022, and January 1, 2025, had to report the judgment or settlement to the Judicial Council within 60 days, detailing the filing date, disposition date, and amount and type of damages awarded, feeding into a Judicial Council report to the Legislature due by January 1, 2025, with that reporting subdivision becoming inoperative on January 1, 2029.

Nothing in § 377.34 alters the separate damages cap on noneconomic loss in Civil Code § 3333.2 (the medical malpractice statute), and the section does not affect elder or dependent adult abuse claims brought under Welfare and Institutions Code § 15600 et seq.