Dominguez v. City of Alhambra

In Dominguez v. City of Alhambra (1981) 118 Cal. App. 3d 237, the Court held that a plaintiff who had timely asserted a claim for wrongful death could not amend her pleadings to assert, as the administrator of his estate, a new cause of action for the decedent's injuries. "The survival, pursuant to Probate Code section 573 now Code of Civil Procedure section 377.20, subd. (a) , of the cause of action the decedent could have maintained during his lifetime, is wholly distinct from a cause of action by the decedent's heirs for wrongful death pursuant to Code of Civil Procedure section 377 now Code of Civil Procedure section 377.60. Code of Civil Procedure section 377.20, subdivision (a) provides: "(a) Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." Code of Civil Procedure section 377.60, subdivision (a) provides that a cause of action for wrongful death may be asserted by "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." The action under Probate Code section 573 is by the estate and is for the injuries suffered by the decedent prior to his death. The action under Code of Civil Procedure section 377 is by the heirs, not the estate, and is for the loss of support, comfort and society suffered independently by the heirs as a result of the death itself. Section 377 expressly excludes damages recoverable under Probate Code section 573." (Dominguez v. City of Alhambra, supra, 118 Cal. App. 3d at p. 243.) Section 377.34 of the Code of Civil Procedure now provides: "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 are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." Section 377.61 of the Code of Civil Procedure provides that in an action for wrongful death, "damages may be awarded that, under all the circumstances of the case, may be just, but may not include damages recoverable under Section 377.34."