Now that the 2021 legislative session has closed, personal injury lawyers should be aware of new statutory changes taking effect on January 1, 2022.

Survival statute allows claims for pain and suffering

If a personal injury plaintiff dies during the litigation, the plaintiff’s estate may pursue the action under Code of Civil Procedure section 377.34, California’s “survival statute”—except that traditionally all claims for pain and suffering damages were extinguished at death. California was an outlier in this regard, and now this exception has been removed for actions filed during a 4-year window from January 1, 2022 to January 1, 2026.

SB 447 (Stats. 2021, ch. 545) amends Code of Civil Procedure section 377.34 to provide that in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement in the following circumstances:

  • The action or proceeding is filed on or after January 1, 2022, and before January 1, 2026; or the action or proceeding was granted a Code of Civil Procedure section 36 preference before January 1, 2022.
  • The $250,000 MICRA cap on noneconomic damages in actions against a health care provider still applies (see Civ. Code, § 3333.2), including the cap in elder abuse cases (see Welf. & Inst. Code, § 15657).
  • The plaintiff must send a copy of the judgment to the Judicial Council within 60 days after judgment.

The plaintiffs’ bar lobbied for this bill in light of the pandemic-related backlog in the courts, as well as their long-standing objection to rewarding defendants for tactical delays. The defense bar succeeded in narrowing the window to actions filed, not accrued, before the 2026 sunset date and clarifying that the MICRA damage cap applies.

For discussion of survival actions, see California Tort Damages (2d ed. Cal. CEB) chapter 4. On damage caps in medical negligence suits, see California Tort Guide §§9.85-9.89 (3d ed. Cal. CEB). On damage caps in elder abuse cases, see California Elder Law Litigation: An Advocate’s Guide §§3.41-3.43 (Cal. CEB).

Government claim presentation requirements

Before suing a public entity or employee, a personal injury claimant must first file a claim with the relevant department or agency (see Gov. Code § 945.4), generally within 6 months of the date the cause of action accrued.  (See Gov. Code, § 911.2(a).)

1. Expanded late claim relief when personal injury claimant was incapacitated or a minor during claim period.

Under previous law, late claim relief was available if the prospective plaintiff was either a minor, or was physically or mentally incapacitated, during the entire 6-month claim period, and the late claim was presented within “a reasonable time” not more than 1 year after the cause of action accrued. (See Gov. Code, § 911.6.)

SB 501 (Stats. 2021, ch. 218) eases these requirements. Amended Government Code section 911.6 allows a late claim if:

  • The plaintiff was a minor during any of the 6-month claim period; or
  • The plaintiff was physically or mentally incapacitated during any of the 6-month claim period and for that reason failed to make a timely claim.

The late claim must be presented within a reasonable time within 6 months of the plaintiff no longer being physically or mentally incapacitated, or 1 year after the claim accrues, whichever occurs first. (Gov. Code, § 911.6(b)(4),(5).) In the case of a minor, the claim must be presented within a reasonable time within 6 months of the claimant turning 18 years of age, or 1 year after the claim accrues, whichever occurs first. (Gov. Code, §§ 911.4(b), 911.6(b)(3).)

Note: Attorneys should also be aware that COVID-19-related Executive Orders—which remained in effect until June 30, 2021—may independently extend the 1-year period to present a late claim. These orders generally extended the time to present a claim under the Tort Claims Act claims by 120 days. (See Executive Order N-35-20.)

2. No claim requirement in cases of sexual assault by police officer.

New Government Code section 945.9, added by AB 1455 (Stats.2021, ch. 595) to eliminate the government claim presentation requirement if the claim arises out of a sexual assault by an on-duty law enforcement officer.  (Govt. Code, section 945.9(a).)

The new statute also extends the statute of limitations in these cases. The action must be filed within 10 years after the defendant is no longer employed by the law enforcement agency; or within 10 years of the last date the defendant is convicted of sexual assault, whichever is later. (Govt. Code, section 945.9(c).) The statute also revives otherwise time-barred claims in pending cases. (See Govt. Code, section 945.9(c).)

Note:  The legislature, as part of a larger national effort to address the issue of sexual assault and sexual harassment in the military, also passed SB 352 (Stats. 2021, ch. 183). It clarifies that California National Guard members, though generally immune from civil or criminal liability for acts done in the performance of their duty, are liable for acts of sexual harassment and sexual assault. (See Mil. & Vet. Code § 392.)

For in-depth discussion of government claim presentation requirements and procedures, including late claim proceedings, see California Government Tort Liability Practice (4th ed. Cal. CEB).

Bills that fell short

Notable bills that never made it out of committee this year include:

  • Proposed Civil Code section 1714.27 (AB 1313) would have exempted businesses from tort liability for COVID-19 claims if the business “substantially complied” with all applicable state and local health laws and regulation, absent gross negligence, willful or wanton misconduct, or unlawful discrimination.
  • Proposed Civil Code section 1714.46 (AB 1182) would have imposed strict liability on certain online platforms for unsafe products sold by third party sellers, to the same extent a retailer would be liable. The lawsuits that inspired this legislation are discussed in Amazon and the Burning Hoverboard (Loomis v. LLC, (2021) 63 Cal.App.5th 466) and Amazon and the Exploding Laptop (Bolger v. LLC, (2020) 53 Cal.App.5th 431).

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