Breaking Barriers to Justice
That rule did not arrive through reasoned policymaking. Legislative history shows that when the Legislature enacted survival damages provisions in 1961, the insurance industry lobbied to insert the language extinguishing pain and suffering. The Legislature wanted to preserve those damages. Industry pressure prevailed. The same defendants who benefit from court delays today have benefited from that language for more than 60 years. SB 447 was the first serious correction in California in a generation. It was structured as a four-year pilot, with mandatory Judicial Council reporting, because the Legislature wanted to measure the effect rather than make a permanent change in the dark. The pilot ran. The data came in showing no significant impact to defendants. And then the law expired before the Legislature acted to extend it. SB 29, as amended in 2026, would extend the recovery of pre-death pain, suffering, and disfigurement in survival actions through January 1, 2030. It preserves the reporting framework, extends the Judicial Council’s deadline to report back to the Legislature, and gives the state another four-year window to evaluate the law’s effect. For plaintiffs’ attorneys, the stakes of that extension are not theoretical. In the practice we handle every day, the survival damages rule can impact what cases get filed at all. Consider an elderly plaintiff in a nursing home neglect case. The injury is real. The suffering is documented. The defendant’s exposure under any honest accounting includes the months or years the plaintiff endured before death. Under the rule California has now returned to, that exposure disappears the moment the plaintiff dies, leaving only
the medical bills and whatever economic losses can be proven. Defendants understand this. So do their insurers. The settlement value of these cases is calculated against the probability that the plaintiff will survive to verdict, not against the wrong that was done. The same dynamic plays out in prolonged-injury cases more broadly: catastrophic injury cases where the plaintiff lingers, toxic exposure cases where the disease progresses slowly, and cases involving medically vulnerable plaintiffs whose mortality is part of the defense’s strategy. Without pre-death pain and suffering on the table, the math favors delay. The longer the case takes, the more likely the defendant is to win it through attrition. That dynamic is not hypothetical. Once again, defendants routinely refuse to agree to bench trials, object to virtual proceedings, and resist preference motions filed under Code of Civil Procedure section 36, the statute meant to give dying and elderly plaintiffs a faster path to trial. SB 447 was a partial corrective. SB 29 is the chance to keep that correction in place long enough to know what it does. The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) preserves pain and suffering damages for qualifying claims involving elder or dependent adult abuse, even after SB 447’s sunset. That is meaningful, but it is also narrow. It does not reach the universe of cases that SB 447 covered. The protections under Welfare and Institutions Code section 15657 require proof of recklessness, oppression, fraud, or malice, a substantially higher standard than ordinary negligence. For the broader category of personal injury, products liability, medical malpractice, and
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Consumer Attorneys of California
FORUM July/August 2026
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