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Wrongful Death

Who is permitted to sue for Wrongful Death? (Standing to sue)

In California only certain persons can file a wrongful death suit on behalf of the decedent. Since an action for wrongful death is governed solely by statute, the right to bring the action is limited only to those persons described by the Legislature in Code Civ. Proc., § 377.60, which provides:

             "A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:

              (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
              (b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents.  As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.
             (c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent's death, the minor 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.....
           [ ....(f)(1) For the purpose of this section, “domestic * * * partner” means a person who, at the time of the decedent's death, was the domestic partner of the decedent in a registered domestic partnership established in accordance with subdivision (b) of Section 297 of the Family Code .]

So, example, if the decedent was a minor, his or her parents would have the right to sue for their child's Wrongful Death, as they would be heirs under intestate succession.  Similarly if the decedent was an unmarried adult with no children, a surviving parent would have standing to sue for Wrongful Death.    

          The order of Intestate Succession is spelled out at California Probate Code section 6402, and goes like this:

  • If there is no surviving spouse, then the intestate estate passes to the surviving children,
  • If there is no surviving spouse or children, then to the decedent's surviving parents equally,
  • If there is no surviving spouse, children, or parents, then the estate passes to the surviving siblings,
  • If there is no surviving spouse, children, parents, or siblings, then to the surviving grandparents of decedent, or the children of those grandparents. 
  • If there is none of the above (now it is getting complicated) then to the surviving children of a predeceased spouse, who are not the children of the decedent.                          
 

Under this statutory scheme, for example, if the decedent is your very best friend, since childhood, and your friend dies as a result of someone's carelessness or bad conduct, you would have no standing to sue for his or her Wrongful Death, assuming no family was left behind.  

   CALIFORNIA'S JURY INSTRUCTIONS FOR WRONGFUL DEATH CASES:

In California civil trials for Wrongful Death, specific jury instructions would be given. The jury instructions approved by the Judicial Counsel of California and used in jury trials are referred to as "CACI"  meaning "California Approved Civil Instructions"   In a wrongful death case, either CACI 3921 (Wrongful Death of an Adult) and CACI 3922 (Wrongful Death of Minor) is given. 

      The CACI 3921 instruction form must be adjusted and edited for the specifics of each case, but the format reads as follows:   

" If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of decedent], you also must decide how much money will reasonably compensate [name of plaintiff] for the death of [name of decedent]. This compensation is called “damages.”
 
[Name of plaintiff] does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages.
 
The damages claimed by [name of plaintiff] fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.
 
[Name of plaintiff] claims the following economic damages:
 
1. The financial support, if any, that [name of decedent] would have contributed to the family during either the life expectancy that [name of decedent] had before [his/her] death or the life
expectancy of [name of plaintiff], whichever is shorter;
 
2. The loss of gifts or benefit that [name of plaintiff] would have expected to receive from [name of decedent];
 
3. Funeral and burial expenses; and
 
4. The reasonable value of household services that [name of decedent] would have provided.
 
Your award of any future economic damages must be reduced to present cash value.
 
[Name of plaintiff] also claims the following noneconomic damages:
 
1. The loss of [name of decedent]'s love, companionship, comfort, care, assistance, protection, affection, society, moral support[; [and]/.]
[2. (if a spouse is bringing the action then.. The loss of the enjoyment of sexual relations[; [and]/.]]
[3. The loss of [name of decedent]'s training and guidance.]
 
No fixed standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.
[For these noneconomic damages, determine the amount in current dollars paid at the time of judgment that will compensate [name of plaintiff] for those damages. This amount of noneconomic damages should not be further reduced to present cash value because that reduction should only be performed with respect to future economic damages.]
 
In determining [name of plaintiff]'s loss, do not consider:
 
1. [Name of plaintiff]'s grief, sorrow, or mental anguish;
2. [Name of decedent]'s pain and suffering; or
3. The poverty or wealth of [name of plaintiff].
 
In deciding a person's life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person's health, habits, activities, lifestyle, and occupation. According to [insert source of information], the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years, and the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years. This published information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner.
 
[In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount [among/between] the plaintiffs]"
 
 
 

            CACI 3922 would be the instruction given to the jury when parents are seeking to recover for the death of their child.  The form reads as follows:

" If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of minor], you also must decide how much money will reasonably compensate [name of plaintiff] for the death of [name of minor]. This compensation is called “damages.”

[Name of plaintiff] does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages. The damages claimed by [name of plaintiff] fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.
 
[Name of plaintiff] claims the following economic damages:
 
1. The value of the financia support, if any, that [name of minor] would have contributed to the family during either the life expectancy that [name of minor] had before [his/her] death or the life expectancy of [name of plaintiff], whichever is shorter;
 
2. The loss of gifts or benefit that [name of plaintiff] could have expected to receive from [name of minor];
 
3. Funeral and burial expenses; and
 
4. The reasonable value of household services that [name of minor] would have provided.
 
Your award of any future economic damages must be reduced to present cash value.
 
[Name of plaintiff] also claims the following noneconomic damages: The loss of [name of minor]'s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.
No fixe standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.
[For these noneconomic damages, determine the amount in current dollars paid at the time of judgment that will compensate [name of plaintiff] for those damages. This amount of noneconomic damages should not be further reduced to present cash value because that reduction should only be performed with respect to future economic damages.]
 
Do not include in your award any compensation for the following:
 
1. [Name of plaintiff's] grief, sorrow, or mental anguish; or
 
2. [Name of minor]'s pain and suffering.In computing these damages, you should deduct the present cash value of the probable costs of [name of minor]'s support and education.In deciding a person's life expectancy, consider, among other factors, that person's health, habits, activities, lifestyle, and occupation. Life expectancy tables are evidence of a person's life expectancy but are not
conclusive. [In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount [among/between] the plaintiffs.]
 

STATUTE OF LIMITATIONS: 

In all matters involving wrongful death it is essential that measures be taken promptly to preserve evidence, investigate the facts and witnesses, and to file a lawsuit prior to the deadline imposed by the statute of limitations.  That statute of limitations depends on who is being sued and for what. In a general negligence action there is a 2 year statute of limitations from the date of death.  But in a medical malpractice action, it would be 1-year from the date of death.  Also you need to watch out for Government/Public entity claims (for example: State, County, County Hospital, state facility, Police, Fire Department, etc.) In these types of cases, a written government claim must be served on the public entity within 6 months of decedent's death. 

So the clock is ticking and you need to know when time will run out on bringing your Wrongful death claim forward.  If a loved one has been a victim of wrongful death, call Law Offices of Robert Dourian now at 800-790-8856 or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don't delay, because an action must be filed before the statute of limitations expires.

The advice and recommendations posted herein, may not be specific to your case, and is not intended to be conclusive to your particular case. No Attorney / Client relationship with our firm or attorneys is hereby formed by providing this information to you via the internet, nor is this page intended to constitute formal legal advice. See Terms of Use.

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