Litigation often lasts three to five years and even an arbitration can take over a year. What happens if one of the parties dies? Is the case automatically ended? Does it automatically stop (become stayed?) How is the case altered, both legally and practically? Those are the questions for this article.
A pending action does not abate by reason of the death of a party if the cause of action survives. California Code of Civil Procedure (CCP) Section 377.21.
All causes of action survive death except as otherwise provided by statute CCP Sect. 377.20.
Automatic stays can occur only when an action in another jurisdiction would so provide, such as the filing of bankruptcy or a filing in Federal Court. In the case of a death, in California, according to statute, death is not listed as one of the grounds for an automatic stay.
From the point of view of the Court, the case will continue even though the party is deceased. It is up to the executor of the estate of the decedent to bring the relevant motion before the Court to substitute into the action. See our article on Probate in California-The Basics.
EFFECT OF DEATH OF DAMAGES FOR THE DECEASED PARTY
As discussed, all causes of action survive death except as otherwise provided by statute. CCP Sect.377.20. However, the damages that may be awarded can be radically altered. Elder abuse cases are the only cases where damages are still recoverable for decedent’s pain and suffering. CCP Sect. 377.34. In other cases, the damages for pain and suffering are barred.
Further, no punitive or exemplary damages are recoverable against a decedent’s estate. CCP Sect. 377.42
ORDER FOR SUBSTITUTION
The court may make orders substituting the decedent’s personal representative or successor in interest as plaintiff on claims belonging to the decedent. Or it may appoint the successor in interest as a special administrator or guardian ad litem on such claims. CCP Sect. 377.33.
On claims against the decedent, the court may order the decedent’s personal representative substituted as defendant or, to the extent, provided by statute, the decedent’s successor in interest.
Procedure- an order substituting decedent’s personal representative or successor in interest may be obtained on motion. CCP Sect. 377.31. (If the person seeking to be a personal representative is a successor in interest, they must execute and file a declaration in statutory form. CCP Sect. 377.32.)
CONTINUANCE OF TRIAL DATE
Death of a party should under normal circumstances be good cause for granting a continuance of a trial date. CRC 3.1332.
Most cases depend on testimony of the parties to establish the facts. Assuming videotaped depositions were taken, a deceased party may still have his or her day in court to “testify” but most depositions are not full presentation of the evidence but merely a party being cross examined by the opposing party. See our article on the American System of Litigation. The deceased party’s case will probably have to be proven by other means of evidence and in cases in which credibility of a party is important, the lack of the party to put the facts before a judge or jury can alter the chances for winning significantly.
Thus, the case may be harder to prove and the damages may be limited as described above. While sympathy for the deceased party’s family may be possible, just as often the jury will feel that the family members should not benefit from the injuries personally suffered by a deceased party. Each case must be carefully analyzed based on its unique facts.
If a party is ill or very elderly, many lawyers will take proactive steps to assure that the testimony will be available. They may video tape the full testimony, making sure a judge and jury will be able to see the personality of the party fully. They may alter the estate plan or the Trustee appointed so as to allow effective and prompt transition to the surviving heirs to proceed with the case. Or, knowing the chances of death, they may elect to seek settlement before the other side realizes the changes occurring.
Additionally, a trial date may be advanced if the court is convinced that it is warranted due to the health or life expectancy of a party. This is termed a motion for priority. This should be seriously considered by any party worried about survival.
Death of a party does not result in an automatic stay of the proceedings. Local rules in some courts, require additional filing requirements to retain the action as active. But to assume that the case terminates or is stayed simply because there is a death of a party is an error. Prompt affirmative action must be taken by the representative of the decedent.