MBE Rules · Remedies
Survival Damages
Cal. Civ. Proc. Code § 377.34
The rule
A decedent's cause of action survives, but recoverable damages historically excluded pain and suffering; California temporarily allows pain-and-suffering recovery in survival actions filed within the statutory window (2022-2025 legislation).
In plain English
Survival damages refer to the compensation that can be claimed for a deceased person's cause of action, which continues even after their death. Traditionally, damages for pain and suffering were not recoverable, but California has temporarily allowed these claims for survival actions filed between 2022 and 2025.
Worked example
A man is injured in a car accident and later dies from his injuries. His family files a survival action within the allowed timeframe, seeking damages for his pain and suffering before he passed away. Under the temporary California legislation, they are able to recover those damages, resulting in a favorable outcome for the family.
Memory hook
Survival of the fittest: in California, pain and suffering can survive too—at least until 2025!
The trap
Exams may confuse students by including survival actions that fall outside the temporary legislation window, leading to incorrect assumptions about recoverable damages. Be careful to note the dates and specific conditions for pain and suffering claims.
How examiners test it
Questions often present a scenario involving a decedent's injury and test your knowledge of the applicable damages, particularly focusing on the time limits for pain and suffering claims under California law.
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