California is on the cusp of a significant shift in the landscape of survival litigation. For decades, Code of Civil Procedure section 377.34 barred recovery of a decedent's pain, suffering, or disfigurement in survival actions, limiting those claims to economic damages the decedent sustained before death. This framework placed California among the minority of jurisdictions that prohibited noneconomic survival damages.
That landscape abruptly changed in 2022. Senate Bill 447 (SB 447) introduced a temporary four-year window during which estates could recover noneconomic damages for a decedent's pre-death pain, suffering, or disfigurement. For plaintiffs, that expansion was transformative. It increased case valuations, fortified emotional narratives, and created substantial leverage - particularly in claims involving prolonged medical treatment, severe injury, elder abuse, nursing home litigation and catastrophic wrongful death scenarios.
The Legislature, however, never intended this expansion to be permanent. SB 447 was enacted as a pilot program, coupled with mandatory reporting to the Judicial Council so lawmakers could evaluate its impact. With no legislative extension enacted, the pilot period is now scheduled to expire.
On January 1, 2026, California will revert to its long-standing rule: no recovery of pain, suffering, or disfigurement in survival actions. The countdown is underway, and the implications for defense counsel, insurers, public entities, and businesses are considerable.
Understanding the Distinction: Wrongful Death and Survival Actions
California law recognizes two distinct claims arising from a fatal incident: wrongful death actions and survival actions. They serve different purposes and belong to different parties.
Wrongful death actions brought under Code of Civil Procedure section 377.60, belong to the decedent's heirs and compensate them for losses they personally suffered. These include loss of financial support, household services, and companionship. Noneconomic damages in wrongful death actions do not include the decedent's own pain and suffering.
Survival actions, governed by Code of Civil Procedure sections 377.30 and 377.34, belong to the decedent's estate. They allow recovery of damages the decedent incurred before death, such as medical expenses, lost earnings, and property losses. Historically, and again beginning in 2026, these actions exclude damages for pain, suffering, or disfigurement.
SB 447 temporarily carved out an exception to that rule. The exception is now nearing its end.
SB 447: A Temporary Expansion of Noneconomic Survival Damages
SB 447 permitted estates to recover a decedent's noneconomic damages - pain, suffering, and disfigurement - for survival actions filed between January 1, 2022, and January 1, 2026. It also applied to cases that had received trial preference before January 1, 2022.
This temporary expansion was groundbreaking. It created a new category of high-exposure damages that had been unavailable in California for decades, altering settlement strategies and dramatically increasing valuation in certain classes of litigation. The requirement that outcomes be reported to the Judicial Council signaled the Legislature's intent to study the effect rather than adopt a permanent shift.
The Failed Extension: SB 29
In 2023, lawmakers introduced SB 29, a bill that would have extended SB 447's noneconomic survival damages through January 1, 2027. SB 29 drew strong support from the plaintiffs' bar, which argued that SB 447 corrected an unjust gap in California law.
But it also met significant resistance from the medical industry and insurers. Opponents argued that SB 29 undermined the balance struck in the 2022 revisions to the Medical Injury Compensation Reform Act (MICRA), potentially increasing malpractice insurance costs and destabilizing the medical liability system.
SB 29 stalled, resurfaced briefly in committee, and ultimately died at the close of the legislative session. With no further extension introduced, SB 447 will lapse automatically.
What Happens When the Sunset Arrives on January 1, 2026?
Beginning in 2026, California will once again prohibit recovery of pain, suffering, and disfigurement in survival actions. Only economic damages will remain recoverable, along with punitive damages in the rare cases where they are authorized.
Crucially, eligibility for the expanded noneconomic damages is determined entirely by the filing date of the survival action, not by the date of injury or death. A suit filed on December 31, 2025, preserves access to noneconomic survival damages. A suit filed days later, on January 2, 2026, does not. A surge of filings is expected as the deadline approaches.
What This Means for Defense Lawyers, Insurers, and California Businesses
A Meaningful Reduction in Litigation Exposure
Noneconomic survival damages introduced significant volatility into litigation, often dwarfing economic losses. Their removal reduces the risk of runaway verdicts, particularly in claims involving long hospitalizations, elder abuse allegations, or injuries involving substantial pre-death suffering. Defendants can anticipate more predictable exposure, and reduced pressure to settle during early phases of litigation.
A Shift in Plaintiff Leverage
The ability to pursue pain and suffering damages in survival claims gave plaintiffs a powerful negotiation tool, enabling higher demands and more emotionally compelling presentations to juries. With the expiration of SB 447, plaintiffs lose one of their most influential leverage points. Settlement ranges will narrow, and emotional appeal will presumably play a reduced role in valuation.
More Predictable Valuation and Settlement Dynamics
When noneconomic survival damages disappear, survival actions will once again focus on quantifiable economic losses. This restores predictability and helps align both sides on valuation early. Defendants can expect clearer exposure modeling and fewer outlier scenarios.
Strategic Behavior Before the Deadline
The approaching sunset will likely prompt accelerated filing activity throughout 2025, including rushed complaints, increased requests for trial preference, compressed discovery schedules, and attempts to position claims within the expiring window. Defense teams should prepare for heightened early litigation activity and potential pressure to move cases quickly.
New Opportunities for Creative Resolution
Once pain and suffering damages are no longer available, defendants may find that plaintiffs become more receptive to early resolution, narrower valuation ranges and decreased emotional volatility can create opportunities for efficient mediation and more realistic demand structures.
Conclusion: A Return to Predictability and a Shift in Litigation Culture
California's four-year experiment with noneconomic survival damages is ending. Beginning, January 1, 2026, state law will once again bar estates from recovering a decedent's pain, suffering, or disfigurement in survival actions. For defense counsel, insurers, businesses, the shift offers substantial benefits: reduced exposure, greater predictability, fewer emotional wild cards at trial, and more disciplined settlement dynamics.
For plaintiffs, the sunset marks the end of a rare window of expanded recovery. The filing deadline will drive strategy for the remainder of 2025, and cases filed just before the cutoff may carry heightened stakes.
The litigation landscape in California is about to reset. Understanding the significance of this change and preparing for the strategic ripple effects now, will be crucial for anyone defending or evaluating wrongful death and survival claims in the year ahead.
