Defamation and the Deceased Plaintiff - California

I am not an expert on California law, nor can I give you specific legal advice, but I can tell you that most states do not recognize a defamation claim for the deceased. Many states will, however, allow a cause of action to survive if filed before the plaintiff's death. Whether an action for defamation of a living person survives his death depends upon the survival statute of the particular state. See Restatement (Second) of Torts: Defamation of Deceased Persons § 560.

California generally permits ongoing defamation suits to continue after the death of a plaintiff. California's survival statute provides that no cause of action shall be lost by reason of the person's death.  See Cal. Civ. Proc. Code § 377.20(a). In furtherance of that right, the court will allow a pending action to be continued on motion by the decedent's personal representative or successor in interest. See Cal. Civ. Proc. Code § 377.31. Therefore, a deceased plaintiff's defamation claim could be continued by his estate or surviving spouse. Damages recoverable in such actions are limited to the loss or damage that the decedent sustained or incurred before death. See Cal. Civ. Proc. Code § 377.34.

It is difficult to predict how a deceased plaintiff may affect the aspects of a case without more information. Obviously, failure to depose the plaintiff before his death poses some potential problems. However, like all other cases, the outcome of a defamation suit under these circumstances depends on several factors, including the facts, the nature and extent of the claims, and the defenses asserted.

For more information concerning defamation law in California or other states, see the State Law: Defamation section of the CMLP's Legal Guide.