Part 1 of 2

While civil litigators in California may be prepared for a myriad of obstacles that could arise during the course of litigation, one complication they may not anticipate is the death of a party. What happens when a party to a pending litigation matter suddenly passes away?

The answer lies within the statutory schemes of the California Code of Civil Procedure[1] and the California Probate Code. But determining how to proceed under the ambit of these rules can be daunting – even for the seasoned legal practitioner. The following is a useful framework for a general step-by-step analysis on how to proceed with a survival claim following the death of a litigant. This article, Part 1, will discuss what to do when a plaintiff dies. Part 2 discusses what to do when a defendant dies during litigation.






Verlan Kwan, Partner at Keystone Law Group, summarizes five scenarios and what to do when the plaintiff in a lawsuit dies. Read the complete article below for more details. Click the YouTube Channel subscribe button to be notified when new videos are published.


Step 1: Is the Decedent a Plaintiff or Defendant?

The analysis on what to do when a party to litigation dies first depends on whether the deceased individual is a plaintiff or a defendant. California Code of Civil Procedure, Part 2, Title 3, Article 3 governs when the decedent is a plaintiff, whereas Article 4 governs when the decedent is a defendant. The relevant sections apply to actions commenced or maintained on or after January 1, 1993, regardless of whether the decedent died on or before January 1, 1993.[2]

Step 2: Does the Claim Survive Death?

The next step is to determine whether the claim survives death. In 1949, the Legislature provided classifications of specific survivable and non-survivable causes of action, which were then eliminated in 1961.[3] The survivability of claims were further modernized in 1992 when the current statutes were enacted.

Currently, the California Code of Civil Procedure provides that a pending action does not abate by reason of the death of a party if the cause of action survives,[4] and a cause of action for or against a person survives subject to the applicable limitations period unless otherwise provided by statute.[5] In others words, just because a plaintiff passes away does not mean his or her case ends there. Depending on the cause of action, certain claims may be brought by a representative of the plaintiff-decedent subject to statutory time limitations.

Examples of claims that survive death include, without limitation, setting aside property transfers obtained from a decedent by fraud or undue influence;[6] creditor’s claims; actions for recovery of property belonging to decedent;[7] elder abuse claims;[8] civil rights claims under 42 U.S.C. § 1983;[9] and collateral issues in post-judgment marital dissolutions (i.e., property rights, spousal and child support, fees and costs).[10]

Examples of claims that do not survive death include, without limitation, pre-judgment marital dissolutions;[11] invasion of right of privacy;[12] and claims that seek punitive damages, pain and suffering damages, and emotional distress damages on behalf of a decedent.[13]

Finally, it is important to note that a wrongful death claim is not a “survival claim.” A survival claim, governed by C.C.P. §§ 377.30, et seq., is a claim that belonged to the decedent and may be commenced by the decedent’s personal representative or successor in interest, meaning that the cause of action existed while the decedent was alive and survived the decedent.[14]

On the other hand, a wrongful death claim belongs to the dependents of the decedent and not to the decedent himself or herself. It is to provide compensation to these dependents for the loss they suffered as a result of decedent’s death.[15]

Step 3: Who Has Legal Standing to Litigate in Place of the Plaintiff-Decedent?

For plaintiff-decedents, a cause of action that survives death passes to the decedent’s legal successor in interest, and an action may be commenced by the decedent’s personal representative (who is appointed by the probate court), or, if none, by the decedent’s successor in interest.[16] This is subject to the California Probate Code providing that a decedent’s property is subject to the rights of beneficiaries and creditors, among others, pursuant to devise in the decedent’s estate plans, or to intestate succession in the absence of a devise.[17]

For the purposes of these code sections, a successor in interest means either a “beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of property that is the subject of a cause of action.”[18] A beneficiary may include those expressly named in a decedent’s estate plans, or, where decedent died intestate, then those entitled to inherit through intestacy.[19]

Where a personal representative has been or can be appointed, best practice dictates that an action should be brought by the decedent’s personal representative instead of the decedent’s successor in interest.

Step 4: How Does Someone Commence or Maintain an Action Where the Plaintiff Has Died?

The next step is to determine how another person steps into a pending civil action on behalf of a decedent. Where an action is pending, a cause of action may be maintained on behalf of a decedent by motion. For plaintiff-decedents, “[o]n motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”[20]

Once a Petition for Probate has been filed and interested persons have been notified, only the probate court can appoint a personal representatives. Such a motion must be filed with a corresponding affidavit or declaration under penalty of perjury containing the requisite information from decedent’s successor in interest.[21]

For causes of action that survive death, a representative for a plaintiff-decedent must bring an action on behalf of the decedent at any time before the expiration of the later of six months after the plaintiff-decedent’s death or within the limitations period that would have been applicable (for the underlying action) had the plaintiff not died.[22] A court may order whatever is appropriate to ensure proper administration of justice, including appointment of decedent’s successor in interest as special administrator of the estate or a guardian ad litem.[23]

The decision of whether it is more advantageous to seek the appointment of a personal representative, or to proceed with the decedent’s successor in interest, involves various concerns, which can be best addressed in consultation with a professional in this field – Keystone’s probate attorneys can help litigators determine their best option.

Step 5: What Damages are Recoverable by a Plaintiff-Decedent?

For plaintiff-decedents, “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.”[24]

* * * * *

In sum, time is of the essence to ensure that a party’s rights and claims are not barred from recovery. The death of a litigant does not have to mean the end of the action. But given the complex interplay that must occur between the probate and civil courts, it is essential to engage a practitioner well-versed in both arenas.

For information on what to do when a defendant-decedent passes away, read Part 2 of this article, which will be included in the next edition of our newsletter: Keystone Quarterly.

[1] Cal. Code Civ. Proc. §§ 377.10, et seq.

[2] Cal. Code Civ. Proc. §§ 377.35, 377.43.

[3] 3 Witkin, Cal. Proc. 5th Actions § 15 (2008).

[4] Cal. Code Civ. Proc. § 377.21.

[5] Cal. Code Civ. Proc. § 377.20, subd. (a).

[6] See Estate of Denton (1971) 17 Cal.App.3d 1070.

[7] See King v. Wilson (1950) 96 Cal.App.2d 212.

[8] Cal. Welf. & Inst. C. § 15657.3.

[9] See Cotta v. County of Kings (E.D. Cal. 2015) 79 F.Supp.3d 1148.

[10] See In re Marriage of Drake (1997) 53 Cal.App.4th 1139.

[11] See id.

[12] See Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59.

[13] Cal. Code Civ. Proc. § 377.34.

[14] Cal. Code Civ. Proc. § 377.60, et seq.; see also Russell v. Lorillard, Inc. (9th Cir. 2005) 144 Fed. Appx. 583; see also Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78-79.

[15] Cal. Code Civ. Proc. § 377.60; see also Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76.

[16] Cal. Code Civ. Proc. § 377.30.

[17] Cal. Prob. C. §§ 7000-7001.

[18] Cal. Code Civ. Proc. § 377.11.

[19] Cal. Code Civ. Proc. § 377.10.

[20] Cal. Code Civ. Proc. § 377.31.

[21] Cal. Code Civ. Proc. § 377.32.

[22] Cal. Code Civ. Proc. § 366.1.

[23] Cal. Code Civ. Proc. § 377.33.

[24] Cal. Code Civ. Proc. § 377.34.