Code of Civil Procedure section 377.34 limits damages in the case of actions by a decedent’s personal representative to “the loss or damage that the decedent incurred before death.” So what to do if you’re widowed days after a jury verdict awards your husband millions in damages for prospective loss but before judgment is entered?
You ask the court to invoke the judicial equivalent of time travel: the entry of an order nunc pro tunc to a date before your husband died. In Cadlo v. Metalclad Insulation Corp., case no. A111353 (June 11, 2007), the First District Court of Appeal holds that a valid exercise of the court’s power to antedate the judgment makes the earlier date the one relevant for section 337.34 purposes. Since the Cadlo decedent was alive on the date of entry nunc pro tunc, section 337.34 does not apply.
The Court of Appeal finds that the trial court validly exercised its power here. The date of nunc pro tunc entry was a date on which judgment could have been entered, the delay in entry was not due to plaintiff’s inaction, and the trial court was within its discretion to decide that antedating the judgment was necessary to avoid injustice because the defendants would have earned a large windfall (relief from millions of dollars in liability) without it.
UPDATE (6/13/07): Professor Martin has some commentary on what this case says about our desire for “finality” and whether we might desire it just a little too much.