Damages and Mitigation Worksheet

Purpose#

A factual record of economic losses, benefits lost, out-of-pocket costs, and efforts to find replacement work or care, with documents, for counsel to use in any forum.

The six-way records key#

Mark every document with one letter:

• H — you have it lawfully now.
• R — possibly requestable if the applicant, record, custodian and governing procedure qualify. Personnel/payroll requests, access to one’s own medical information, and EDD benefit or wage records arise under distinct statutes, authorization, confidentiality limits and exceptions; neither Health & Saf. Code §123110 nor Unemp. Ins. Code §1094 creates general access to another person’s medical or an employer’s tax/payroll filings.
• D — obtainable only through discovery or subpoena once a case is filed (Roadmap 038).
• P — potentially protected by privilege or privacy (peer review, Evid. Code § 1157; other patients' records; attorney communications).
• K — must be preserved by someone else but need not be produced to you voluntarily (Roadmap 007).
• X — you must not access, copy or remove it (employer systems, patient charts, jail management systems, peer-review files).

Economic losses#

Mitigation#

Efforts to locate, evaluate, accept or retain replacement work, and treatment access efforts, without deciding legal reasonableness. Preserve job comparability, licensing, location, schedule, functional restrictions, availability and actual earnings; separate an offered position from a position that was realistically obtainable.

Non-economic facts#

Chronology of health effects, care, functional limitations, family support and daily activities; no self-diagnosed causation, jury values or privileged provider records. Each remedy is pathway-specific: FEHA/Title VII emotional harm, tort pain and suffering, wrongful-death survivors’ loss, and survival claims are not interchangeable.

Instructions and cautions#

Roadmap 037 addresses employment damages and mitigation; source-A 096.2 is a noncanonical, held remedies-matrix reference requiring identity confirmation before external linking. Record documented actuals separately from estimates, assumptions and professionally supported projections. Never invent a number; retain applications, responses, metadata and lawfully held offers or earnings records.

Build a loss inventory without assigning legal value#

The worksheet may record pay received, hours not worked, benefit premiums paid, travel costs, replacement services or documented out-of-pocket expenditures. Those numbers describe transactions; they do not establish whether a legal remedy exists or whether any amount can be recovered. Keep gross wages, net pay, employer contributions and employee-paid costs in separate columns. State the source and period for every figure, including whether a payroll entry is an estimate, statement, deposit or corrected payment.

Avoid double counting. A bank deposit and a payroll statement can describe the same payment; a benefit premium deducted from wages may already be included in a net-pay calculation. Record these relationships rather than summing every figure that appears. If employer and employee records disagree, list both and identify the exact period and category being compared. A promise of future compensation is a different entry from wages already earned and reflected on a pay statement.

Mitigation-related facts may include applications, interviews, other employment, medical restrictions, training, or efforts to resume work. Record dates and the actual document; do not label an effort “reasonable” or “inadequate.” Likewise, a refusal or separation may have multiple contemporaneous explanations. Record what the relevant records say, including responses and obstacles, without treating the worksheet as a damages model.

No health details, Social Security numbers, financial account numbers or tax return contents should be pasted into a public worksheet. Personal financial records may be handled privately by counsel or lawful representatives under appropriate safeguards. The goal is a source-based record of money and time, not a forecast, settlement demand or claim valuation.

Quantities without unsupported forecasts. For hours, distinguish scheduled shifts, hours actually worked, paid time and time later corrected on payroll. For expenses, distinguish a receipt from an unfulfilled estimate. Keep original currencies and units visible where applicable. If a person receives a refund, replacement wage payment or insurer reimbursement, record its date and category separately rather than silently deleting the earlier loss entry. The worksheet should never convert these records into an amount a reader should demand or expect in settlement.

Where a figure is derived from multiple statements, show source arithmetic privately, state the assumptions and preserve the original numbers. A projection is permissible as a clearly labeled scenario for counsel, never as an already incurred loss, recoverable award, fixed settlement value or demand.

Claim-and-remedy separation gate — required before using any figure#

One event can implicate several distinct theories without making all their remedies cumulative. No amount below is presumptively recoverable. Identify: (1) claimant and lawful representative; (2) entity that may be liable; (3) claim and forum; (4) liability elements and defenses; (5) injury caused by that particular violation; (6) evidentiary source; (7) permitted remedy, time period, cap or immunity; and (8) any payment, duplication or collateral-source issue. A claim about a pay statement is not a claim for the same sum as a constitutional injury. A family member’s wrongful-death claim does not belong to the decedent’s estate merely because death triggered both.

Source-specific chronology test. For each theory maintain separate event date, notice/claim date, administrative charge date, complaint-filing date, date of death if any, date defendant learned of evidence, relevant statutory effective date, judgment/settlement date and actual payment date. Never treat any single date as the controlling date for every remedy.

California wrongful death versus survival: a mandatory two-track worksheet#

A wrongful-death claim generally seeks eligible heirs’ own losses caused by the death. A survival claim continues a legally surviving claim belonging to the decedent, typically through a personal representative or properly supported successor. They may arise from the same event, but a single medical invoice, lost-earnings component, funeral bill or noneconomic description must not silently be placed in both recoveries [L1–L5]. State law can govern survivor eligibility even when a federal claim has a different remedial measure.

Important October 2026 temporal correction: Code of Civil Procedure §377.34

Section 377.34(a) generally excludes decedent’s pain, suffering and disfigurement damages from California survival actions while permitting qualifying predeath losses and certain other damages. Subdivision (b)’s limited exception applies where statutory preference was granted before January 1, 2022, or the survival action was filed on or after January 1, 2022, but before January 1, 2026. Thus a state-law survival action newly filed in 2026 ordinarily cannot invoke the expired filing window merely because the injury or death occurred earlier. Conversely, counsel should not strip those damages from a qualifying pre-2026-filed action just because trial or settlement occurs in 2026 or later. The statutory elder-abuse and medical-negligence cross-references also require independent treatment. Verify any later enacted amendment before filing [L3].

**2025 adverse/clarifying authority — Ng v. Superior Court. In a malpractice complaint filed in 2023, the California Court of Appeal held a wrongful-death claim and a survival claim could support distinct MICRA non-economic caps. Its February 20, 2025 modified opinion** clarified the survival damages were available under §377.34(b) but capped, if applicable, under Civil Code §3333.2. Ng does not extend the §377.34(b) filing window through 2026, does not convert an ordinary §1983 claim into a MICRA action, and does not support treating every provider/organization as three separately recoverable cap categories. Identify statutory defendant category and distinct legally compensable injury [L5, L16].

2026 MICRA statutory schedule — conditional, not a worksheet valuation. For an action genuinely arising from professional negligence within Civil Code §3333.2, the statutory 2026 non-economic schedule includes an injury amount of $470,000 and a wrongful-death amount of $650,000 per qualifying collective statutory category, subject to the section’s conditions and timing rule. These amounts do not cap all economic damages and should not be inserted as an automatic claim value. Verify the applicable date of judgment/award/settlement, medical-negligence classification, available defendant categories, and any later statutory amendment before use. Nonmedical civil-rights claims have a separate statutory basis; simply receiving medical care in jail does not prove MICRA applies [L14, L16].

Federal §1983 is distinct: Robertson and Chaudhry

Under 42 U.S.C. §1988(a), state survival law may supply a rule of decision for §1983 only to the extent it is consistent with federal law. In Robertson v. Wegmann, the Supreme Court did not deem every state survival restriction inconsistent with §1983. In Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014), the Ninth Circuit held California’s predeath pain-and-suffering prohibition was incompatible with §1983 where death was caused by a violation of federal law. A worksheet must therefore track the underlying constitutional wrong, cause of death, estate capacity and federal claim—not announce that all decedents receive such damages under §1983 [L6, L17].

Defendant and punitive-damages correction. The Supreme Court’s City of Newport decision precludes §1983 punitive damages against a municipality; Smith v. Wade permits them against a culpable individual under specified conditions. Whether a particular private contractor is a state actor, a corporation treated differently from a municipality for remedial purposes, or shielded by another doctrine must be analyzed independently. Neither employer branding nor a county contract makes all defendants’ liability and remedies identical [L18, L19].

Incarceration-specific defense. 42 U.S.C. §1997e(e) limits certain federal suits for mental/emotional injury sustained while confined absent the stated physical-injury or sexual-act showing, with applicability depending on claimant and timing. Section 1997e(d) can limit recoverable fees. This is not a blanket rule nullifying all constitutional relief, not a reason to conceal physical harm, and not a substitute for separate exhaustion analysis [L21].

Employment compensation and mitigation: opposing-burden protocol#

Documented wages, work capacity and benefits

Record the legally relevant interval without assuming termination was proved. A cleared employee who received no shifts, an employee formally discharged, a worker on unpaid protected leave, and someone who left voluntarily can have different facts and defenses. For each payroll period record hours scheduled, hours actually worked, hours paid, applicable salary/contract, employer-paid benefits, unpaid premiums, plan contributions and corrected payments. Identify the exact employer or plan entity on each source rather than treating a management-company payroll identifier as conclusive evidence of who was liable. Preserve W-2 and wage-statement differences as contradictions for investigation, not a self-certified legal conclusion.

An asserted deferred-compensation balance must be recorded separately from earned current wages, employee-funded amounts, benefit-plan administration, and any bankruptcy distribution. Mark whether the amount is vested, contingent, forfeitable, unsecured, already recovered, or disputed. Do not double-enter one deferred benefit as back pay, contract debt and plan recovery simultaneously. Track legal title/plan rights and which entity owed the benefit, without treating a payroll or benefit-screen snapshot as proof of a trust corpus.

Keep six evidence classes separate: (a) compensation promised; (b) earned amounts; (c) payroll entries and taxation; (d) actual deposits; (e) benefit liabilities and coverage; and (f) independently recoverable remedies. A mismatch is an evidentiary lead, not proof that all entries must be added together.

Employment mitigation doctrine: prevent two opposite errors

Under California Parker v. Twentieth Century-Fox Film Corp., an employer asserting failure to seek alternative work normally must demonstrate a substantially similar available position and reasonably obtainable earnings. The 2026 California CACI 3963 instruction identifies availability, reasonable efforts and the proven amount as distinct proof matters. A hypothetical job board posting is not the same as an offer to that claimant, and a position with different license, pay, hours, responsibilities or locality may not be comparable. A genuine disability-related restriction or unresolved clearance dispute is a factual constraint—not an automatic excuse, finding of permanent incapacity or concession against the claimant [L11, L12].

However, do not tell readers to ignore all wages actually earned from inferior or different substitute work. Villacorta v. Cemex Cement and Martinez v. Rite Aid disagree about deducting actual earned wages from inferior employment; the 2026 CACI 3963 source note expressly preserves that conflict. Record all actual earnings and job characteristics; do not mechanically choose either appellate approach without controlling-case and forum review. Distinguish imputed obtainable income from actual earnings [L12, L13].

For federal Title VII back pay, 42 U.S.C. §2000e-5(g)(1) expressly accounts for interim earnings and amounts earnable with reasonable diligence. The statute also has a two-year charge-related back-pay accrual limit under its terms. These provisions do not alone decide the original claim accrual, the ADA’s applicability, or the correct front-pay period. Track administration, capacity, job market, unsuccessful applications and offers without assuming a fixed mitigated total [L7, L8].

After-acquired evidence — credible adverse defense. In McKennon v. Nashville Banner Publishing Co., the Supreme Court rejected an absolute bar to employment relief based on after-discovered misconduct, but also held that proven conduct serious enough to have independently caused termination can restrict reinstatement, front pay, and back-pay timing. Ask for the actual later discovery date, written employer policy, contemporaneous enforcement practice, actual decisionmaker and evidence showing that termination would have followed—not merely that the employer now alleges misconduct [L9]. This does not prove the defense succeeds in an ADA, FEHA or contract case without a specific application analysis.

Remedy limitation and the misleading universal-cap claim

Federal 42 U.S.C. §1981a supplies employer-size limits on specified compensatory and punitive damages for particular federal employment discrimination claims; it does not turn those numbers into a cap on every component of back pay, front pay, interest or allowable past out-of-pocket pecuniary losses. Punitive relief against governmental entities has separate limitations. Conversely, do not import California FEHA remedies or fee rules into a federal claim simply because the same conduct supports both theories. The same salary interval may be pleaded under different theories but collected only within applicable rules against double recovery [L7–L10].

Injury, causation and alternatives for custody-related losses#

Separate the following clocks: last-known well time; reported symptoms; triage; clinician notice; decision and order; medication or referral; transfer; deterioration; emergency response; death (if any); death certification; and subsequent family losses. A medical expense paid at one point does not establish that a defendant caused the condition or was legally responsible for the invoice. A later bad outcome alone does not show constitutionally deficient care, causation or the value of a claim.

Use an affirmative causation challenge register, not advocacy-only chronology. For each claimed delay or omission preserve what timely action should have occurred, who had authority to take it, available resources, risks known at the time, likely clinical counterfactual, other disease processes, later treatment, contradictory expert views and the condition of source access. If imaging, medication administration, hospital notes, or certified death records are missing, classify the gap as UNPRODUCED; never fill a gap with inference.

Governmental defenses must not disappear from a damages table. California Government Code §§844.6 and 845.6 distinguish broad prisoner-injury governmental immunity from the narrower duty to reasonably summon immediate medical care when statutory conditions apply, as well as provisions concerning medical malpractice and employer payment obligations. These state-law defenses are different from §1983 qualified immunity, Monell causation and remedies. Neither the public entity nor a private corporation should be labeled liable from shared branding alone [L20].

Economic-loss taxonomy. Keep current medical costs, life-care projections, lost earnings/capacity, support, funeral/burial, transportation, assistive equipment, out-of-pocket caregiving, paid insurer balances and liens as separate categories. A hospital billed charge may not equal an amount paid, legally owed or recoverable; medical expenses, lien rights and collateral-source doctrine are forum-specific and potentially disputed. Never automatically deduct disability payments, UI, Medi-Cal, private insurance or an unrelated settlement from every theory; document them as separate receipts and refer offset allocation to counsel.

Source custody, auditability and non-duplication#

Preserve the primary evidence trail

Source class key: P1 public statute/opinion/docket/official record; P2 reliable public secondary; C1 confidential agency/benefit record; C2 confidential employer and financial document; C3 contemporaneous private communication; C4 litigation/health records subject to protections; D derivative research; A inference. An old AI-generated summary is D, not primary evidence. A bank transaction proves a transfer recorded by that bank but not, without more, its legal character; a paystub proves what payroll reported but not necessarily what an employee actually received; a diagnosis alone does not establish causation by an employer or jail.

No authorization by inclusion. Neither this worksheet nor any attorney-deliverable archive authorizes downloading protected charts, patient names, peer-review materials, third-party payroll, employee personnel files, confidential government files or counsel strategy. Use approved record requests, protective procedures and available counsel channels. Never put Social Security numbers, medical identifiers, account numbers, private addresses, minors’ identifiers, tax returns, patient narratives or protected correspondence in website source code, public Markdown, Git history, hosted ZIPs, local analytics or Claude handoff files.

Duplication and allocation worksheet

A single receipt cannot prove two independent losses just because used twice as an exhibit. Keep separate jurisdiction-specific accounts for settlements, statutory offsets, liens, collateral-source disputes, workers’ compensation interplay, insurance, bankruptcy recoveries and ERISA payments. A claim is not a judgment; a judgment is not necessarily an actual payment; a collection from one obligor is not a second independent loss against an affiliate.

Devil’s-eye adversarial checks before any case valuation#

A credible private draft must retain contradictions. The strongest response to a defense is verifiable source material and correct burden allocation, not an unsupported assertion that the defense is false.

Targeted authority notes (October 19, 2026; NOT comprehensive citator clearance)#

The authority identifiers below are specific, targeted proposition support, not guarantees that every subsequent opinion, legislative amendment or factual exception has been checked. Original legislative and court documents are preferred for final legal signoff. Source-access grades: A = primary statute/opinion text directly readable; B = judicially issued instruction or opinion reproduced with identifiable origin; C = current statute in a reputable third-party reproduction but official current California consolidated text not independently accessible; D = secondary interpretation or known conflict requiring review. Currentness for the whole manuscript remains PARTIAL.

Conflict register and matters not assumed

Do not declare closed: the 2025 Ng opinion’s later history; 2026 Californian legislative-session changes after the reproduced §377.34 text; actual vs imputed earnings under Martinez and Villacorta; the 2026 CACI supplement; §1983 Chaudhry remoteness; Medicaid/provider offsets and settlement liens; employer identity; actual position availability; any case-specific medical causation; statutory claimant qualifications; substitute defendant remoteness; recoverability of plan balances in bankruptcy; and external independent counsel/clinical/editorial signoff.

What this worksheet does not do#

It does not tell you whether a claim exists, the correct employer or other defendant, whom to name, where to file, whether §377.34 or MICRA applies, or when any deadline expires. It does not price pain, disability, wrongful death, legal fees or future income, and it never certifies an insurer lien or offset. Those questions require claim-specific evidence and qualified counsel; the worksheet preserves facts and recognized legal holds for that process.

Related roadmaps#

Source-A 037 (employment damages), 076 (custody injury damages), 111 (death in custody), 026 (wage claims), 027 (deferred compensation), 027.2 (benefits/UI), and source-A 096.2 HOLD (remedies matrix; alternate source-B namespace unresolved). Do not generate canonical URLs or silently map source-B 079–099, 100–124 or 125–150.