This unpublished opinion illustrates a rule of California punitive damages law that sometimes gets overlooked.

In a survival action, where the plaintiff is asserting claims for injuries to a decedent, the plaintiff cannot recover punitive damages unless the defendant caused some actual economic loss to the decedent or the decedent’s estate.  This rule derives from two other rules: (1) actual damages are a prerequisite for punitive damages (see Kizer v. County of San Mateo), and (2) noneconomic damages are not recoverable in survival actions (see Civil Code section 377.34).  Thus, because economic damages are the only recoverable form of compensatory damages in a survival action, the plaintiff must prove economic damages in order to recover punitive damages.

Here, the trial granted a motion for nonsuit on the plaintiff’s punitive damages claim after the plaintiff conceded that the decedent and his estate suffered no economic loss. On appeal, the plaintiff argued that punitive damages could be based on statutory remedies available on the plaintiff’s claim for elder abuse.  That argument, however, has already been rejected in a published opinion.  See Berkley v. Dowds.  The Court of Appeal in this case (the Second Appellate District, Division One), followed Berkley and affirmed the nonsuit.