WRONGFUL

DEATH CLAIMS IN CALIFORNIA

An Overview of Wrongful Death in California, Who Can File a Wrongful Death Claim, and What Types of Damages Can Be Collected

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The death of a loved one brings grief and pain to the family under any set

of circumstances. When that death was not of natural causes but was

caused by the negligent or intentional acts or omissions of another, the

death is even more tragic for the survivors. As a surviving family member

you may be entitled to file as a claimant in a California wrongful death

lawsuit. No amount of compensation can turn back the clock and prevent

the loss of your loved one; however, a wrongful death lawsuit can provide

much needed financial support for you and your family as well as hold the

wrongdoer legally responsible for the acts or omissions that contributed to

the death of your family member. Only an experienced California wrongful

death attorney can review the unique circumstances surrounding the death

of your loved one and advise you of your legal options; however, a basic

understanding of California wrongful death claims may be a good place to

start.

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WHAT IS A WRONGFUL DEATH?

When a loved one dies under suspect circumstances it is very easy to look

for someone to blame for the untimely death. Sometimes, the death was

truly the result of an accident that could not have been prevented. In many

cases, however, the death was the result of the wrongful conduct of

another person. If the negligent or intentional conduct of another person

caused, or contributed to, the death of your loved one it may qualify as a

wrongful death under the laws of California.

Both acts and omissions may

form the basis of a claim of

wrongful death. For example, a

driver who chooses to drive

while intoxicated causing the

death of another motorist could

be held legally responsible in a

wrongful death lawsuit for the

act of driving under the influence. Conversely, a physician who fails to

diagnose an illness causing the death of the patient could also be held

legally responsible for the omission.

Both negligent and intentional conduct can form the basis of a wrongful

death lawsuit. As the name implies, an intentional act is one that is done

on purpose. A domestic battery, for instance, resulting in the death of the

victim is an example of intentional conduct that could qualify as a wrongful

death. Though the perpetrator would likely be charged criminally as well, a

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civil wrongful death lawsuit could also be filed. Negligent conduct is more

difficult to explain. In essence, negligence

requires that the defendant had a duty of

care to the victim which was breached,

causing the death of the victim in the case

of a wrongful death claim.By way of

illustration, a motorist has a duty of care

to others on the roadway. If the motorist

chooses to get behind the wheel when

intoxicated, the duty of care has been

breached. If that breach causes the death

of another motorist, a negligent wrongful death may have occurred.

WHAT IS THE DIFFERENCE BETWEEN A SURVIVAL

ACTION AND A WRONGFUL DEATH ACTION?

California law allows two types of actions to be brought against a

wrongdoer who contributed to the death of an individual – a wrongful

death lawsuit under California Code of Civil Procedure Section 377.60-

377.62 and a survival action brought under California Code of Civil

Procedure Section 377.30-377.35. Understanding the difference between

the two is important. A survival action can only be initiated if the decedent

was not killed instantly by the „accident” because a survival action is a

claim that the decedent would be entitled to bring had he lived. The claim

now belongs to the decedent‟s estate. For this reason, only the decedent‟s

personal representative (the person probating the decedent‟s estate) may

Only the decedent‟s

personal

representative (the

person probating the

decedent‟s estate)

may bring a survival

action against the

wrongdoer.

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bring a survival action against the wrongdoer. Under the survival action

statute, the estate of a decedent can recover damages for “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.”

Note that punitive damages are

available in a survival action.

WHO MAY FILE A WRONGFUL DEATH LAWSUIT?

The law limits who may file as a claimant in a wrongful death lawsuit in

California. Only the following individuals may potentially be eligible to

initiate a wrongful death lawsuit:

The decedent‟s surviving spouse and children

The domestic partner of the decedent

A putative spouse and/or children of the decedent

A minor who resided for the previous 180 days in the decedent's

household and was dependent on the decedent for one-half or more

of the minor's support.

Grandchildren of the decedent

Anyone who would be entitled to inherit from the decedent through

intestate succession

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WHAT DAMAGES ARE AVAILABLE IN A WRONGFUL

DEATH LAWSUIT?

A wrongful death lawsuit is a type of personal injury lawsuit. Therefore, the

damages that a claimant can potentially recover include both economic and

non-economic damages. Economic damages are direct, out of pocket

expenses such as:

Funeral and burial expenses

Loss of financial support – this refers to the financial support the

decedent would have contributed to the claimant had the decedent

survived. This includes the value of future earnings.

Loss of gifts and benefits – this figure represents the value of

gifts and benefits, such as the payment of college expenses the

claimant would have received had the decedent survived. This can

also apply to the loss of a non-working spouse who provided benefits

in the form of raising the children and performing household duties

that allowed the working spouse to work. The law considers the

value of these benefits when calculating economic damages.

Non-economic damages are intended to compensate the claimant for the

loss of the decedent‟s:

Love

Companionship

Comfort

Care

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Assistance

Protection

Affection

Society

Moral support

Loss of the enjoyment of sexual relations

Loss of decedent‟s training and guidance

Calculating the value of the non-economic portion of a wrongful death

claim is complicated because of the subjective value of the factors

involved. A jury may look closely at the nature of the relationship between

the decedent and the claimant as well as the apparent strength of the

relationship at the time of death. An estranged spouse, for example, while

still legally entitled to file a claim, would have a harder time convincing a

jury that he has suffered a great loss than would a minor child of the

decedent who lived with the decedent at the time of the death.

STATUTE OF LIMITATIONS

A statute of limitations is the time frame established by law within which a

victim or survivor must file a lawsuit. In most cases, a survivor must file a

wrongful death claim within two years of the date of the accident that

caused the death. Failing to file before the statute of limitations runs out

generally means that you lose your right to compensation.

If you have recently lost a loved one under what you believe to be

questionable circumstances, contact an experienced California wrongful

death attorney as soon as possible. Although it may be difficult to consider

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legal action at a time when you are grieving a loss, the longer you wait the

higher the risk that crucial evidence of wrongdoing will be lost or

destroyed.

California Code of Civil Procedure, Section 377.60-377.62

California Code of Civil Procedure, Section 377.30-377.35

California Civil Jury Instructions, 3921. Wrongful Death

NOLO, Wrongful Death Lawsuits in California

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About Martinez & Schill LLP

Martinez & Schill LLP is a full service civil law firm located in San

Diego and serving Southern California.

Our accomplished team of lawyers includes founders Jennifer Martinez

and Michelle Schill and Of Counsel attorney, Kent Thaeler. Together,

we provide our clients with more than 35 years of legal experience. Through skillful negotiation,

mediation, and tenacious litigation, we are committed to obtaining the best results for our clients.

When you hire Martinez & Schill LLP you are hiring a team of lawyers assigned to your

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Conditional and Neighborhood Use Permits Business Formation

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