California Tort Damages

We updated all of the citations in the book and reviewed developments for relevant changes. Among the changes we found were the following.

Bodily Injury

Civil Code §3333.2(b) has been amended to increase the amount of noneconomic damages recoverable in actions based on the malpractice of health care providers. Such damages are now limited to $350,000 in 2023, and increase annually by $40,000 until they reach $750,000. See §1.5.

Wrongful Death

As long as they meet the statutory requirements for intervention under CCP §387, a surviving spouse, as heir, is entitled to intervene in a wrongful death action brought by decedent’s personal representative. See King v Pacific Gas & Elec. Co. (2022) 82 CA5th 440, 452 (wrongful death statute does not set any limitation on intervention on action for wrongful death filed by personal representative). See §§3.11, 3.15.

Civil Code §3333.2(c) has been amended to increase the amount of noneconomic damages recoverable in wrongful death actions based on the malpractice of health care providers. Such damages are now limited to $500,000 in 2023, and increase annually by $50,000 until they reach $1 million. See §3.13.

Defamation

In Woodhill Ventures, LLC v Yang (2021) 68 CA5th 624, a defendant’s comments about a bakery order did not involve the public interest and could not support an anti-SLAPP motion to strike. See §8.22A.

Malicious Prosecution

If the prior-suit defendant prevailed unequivocally on all claims in the lawsuit and at least one claim was disposed of substantively in the defendant’s favor, there has been a “termination [that] reflect[s] on the merits of the underlying action.” Maleti v Wickers (2022) 82 CA5th 181. See §10.17.

Restrictions on Recovery

Lopez v Ledesma; Koire (2022) 12 C5th 848 held that CC §3333.2, limiting the amount recoverable for noneconomic damages in medical malpractice cases, applies to physician assistant who has agency relationship with supervising physician, even when physician assistant failed to seek guidance from supervising physician. See §15.41.

Under the Medical Injury Compensation Reform Act of 1975 (MICRA), CC §3333.2 caps the maximum damages that may be awarded to an injured plaintiff suing a healthcare provider for professional negligence for noneconomic losses such as pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages. Since 1975, these noneconomic damages had been capped at $250,000, but for cases filed on or after January 1, 2023, plaintiffs will be limited to a maximum of $350,000. That cap will increase by $40,000 annually for 10 years until it reaches $750,000. CC §3333.2(g). See §15.42.

Noneconomic damages in wrongful death cases alleging medical malpractice were previously limited to $250,000; effective January 1, 2023, this limit is raised to $500,000 under CC §3333.2(c). This limit will increase annually by $50,000 until the limit reaches $1 million. CC §3333.2(g). See §15.44.

In Divino Plastic Surgery, Inc. v Superior Court (2022) 78 CA5th 972, the plaintiffs were not allowed to amend their medical malpractice complaint to allege punitive damages 7 months after the initial trial date. See §§15.53, 15.54.

Effective January 1, 2023, the cap for attorney fees in medical malpractice cases was changed to 25 percent for settlements executed prior to the filing of a civil complaint or demand for arbitration, and 33 percent for recovery under settlement, arbitration, or judgment after a complaint or demand for arbitration has been filed. See §15.56.

About the Second Edition Authors

PAUL PEYRAT, legal writer and educator, was the author of the predecessor of this current volume. For CEB, he has also authored California Tort Guide, now in its third edition, California Workers’ Damages Practice, now in its second, and chapters and parts of other CEB books. Based in Sonoma, he is a managing editor and 40-year contributor to the monthly publication California Workers’ Compensation Reporter. He received his B.A. in 1955 and his J.D. in 1958 from the University of Minnesota.

HON. MARY E. WISS currently has a civil assignment at the San Francisco Superior Court. Before her appointment to the bench, Judge Wiss was a sole practitioner in San Francisco, specializing in personal injury, wrongful death, medical negligence, and product liability law. She is a past president of the San Francisco Trial Lawyers Association and of Queen’s Bench. Judge Wiss frequently lectures for CEB on torts, evidence, and trial practice topics. She received her B.A. in 1972 from the University of San Francisco, her M.S. in 1976 from Lone Mountain College, and her J.D. in 1981 from the University of San Francisco School of Law.