BILL ANALYSIS Ó
AB 560
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 560
(Gomez) - As Introduced February 23, 2015
As Proposed to be Amended
SUBJECT: CIVIL ACTIONS: IMMIGRATION STATUS OF CHILDREN
KEY ISSUE: SHOULD THE IMMIGRATION STATUS OF A CHILD SEEKING
RECOVERY UNDER ANY APPLICABLE LAW BE BARRED FROM CONSIDERATION,
IN A CIVIL ACTION WHEN COMPLIANCE WITH FEDERAL IMMIGRATION LAW
IS NOT AT ISSUE?
SYNOPSIS
As proposed to be amended, this bill establishes that in actions
involving minor children who are seeking recovery under any
applicable law, the child's immigration status is irrelevant and
that inquiry into the minor's immigration status in discovery
or similar inquiries is prohibited. The bill limits such
inquiry to claims where the child has placed his or her
immigration status directly in contention and where the person
seeking the inquiry can show by clear and convincing evidence
that the inquiry is necessary to comply with federal immigration
law. This bill arises out of a recent disturbing case in which
a teacher employed by the Los Angeles Unified School District
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engaged in egregious sexual misconduct with elementary school
students at Miramonte Elementary School located in South Los
Angeles. According to news reports, more than 80 students sued
the school district for negligence and personal injury as a
result of the teacher's conduct. During the litigation of the
plaintiffs' claims, the issue of future loss of earnings was
raised by the plaintiffs in a motion in limine, seeking an order
that the immigration status of the plaintiffs was irrelevant to
the issue of damages in the case. The defendant initially
fought the motion, stating that the immigration status of the
children was relevant to the calculation of their future loss of
earnings or loss of wages. Current case law allows an award of
damages to be based on the projected earning capacity of a
plaintiff based on the premise that he or she will be deported
from the U.S. and returned to his or her country of origin. So
although all of the children in the Miramonte case suffered
similar harms, those who are U. S. citizens can be awarded
future earnings based on wages in the United States, while the
undocumented children's award would be based upon wages in
Mexico or another country outside of the United States, which
tend to be much lower. This bill makes it clear that
immigration status of children under any applicable law is
irrelevant, that inquiry into immigration status of a child in
discovery or similar inquiries is prohibited unless either the
plaintiff places his or her status at issue, or the inquiry is
proven to be necessary to comply with federal immigration law.
This bill is supported by MALDEF and several other
organizations. It has no known opposition.
SUMMARY: Adds a section to the Code of Civil Procedure that bars
the consideration of a child's immigration status in civil
actions involving liability or remedy. Specifically, this bill:
1)Provides that in actions involving a minor child seeking
recovery under any applicable law, the child's immigration
status is irrelevant.
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2)Provides that discovery or any similar inquiry in a civil
action or proceeding relating to a minor child's immigration
status is impermissible, except where the minor child's claims
have placed his or her immigration status directly in
contention, or the person seeking such discovery shows by
clear and convincing evidence that the inquiry is necessary to
comply with federal immigration law.
3)Provides that the express application of this act is not
intended to address in any way that adults are not likewise
protected by existing law in the same circumstances.
EXISTING LAW:
1)Provides that all protections, rights, and remedies available
under state law, except any reinstatement remedy prohibited by
federal law, are available to all individuals regardless of
immigration status who have applied for employment, or who are
or who have been employed, in this state. (Civil Code Section
3339(a) and Labor Code Section 1171.5(a).)
2)Provides that for purposes of enforcing state labor,
employment, civil rights, and employee housing laws, a
person's immigration status is irrelevant to the issue of
liability, and in proceedings or discovery undertaken to
enforce those state laws no inquiry shall be permitted into a
person's immigration status except where the person seeking to
make this inquiry has shown by clear and convincing evidence
that this inquiry is necessary in order to comply with federal
immigration law. (Civil Code Section 3339 (b).)
3)Provides that for purposes of enforcing state labor and
employment laws, a person's immigration status is irrelevant
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to the issue of liability, and in proceedings or discovery
undertaken to enforce those state laws no inquiry shall be
permitted into a person's immigration status except where the
person seeking to make this inquiry has shown by clear and
convincing evidence that the inquiry is necessary in order to
comply with federal immigration law. (Labor Code Section
117.5(b).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: A lawsuit by more than 80 elementary school children
against the Los Angeles Unified School District for alleged
sexual misconduct by one of the district's former teachers was
recently settled. The plaintiffs attended Miramonte Elementary
School, which is located in a community in South Los Angeles.
Many of the victims in the lawsuit are undocumented. During the
litigation phase of the case, attorneys for the plaintiffs filed
motions to preclude inquiry into the immigration status of the
plaintiffs in the case. In response, the attorneys for the Los
Angeles Unified School District requested that the court deny
the plaintiffs' motion based on the holding in Hernández v.
Paicius which held that if a plaintiff is seeking damages for
loss of earnings or lost wages, the plaintiff's immigration
status is relevant to the determination of the plaintiff's
potential for earning money in the future. The defendants
argued that evidence of the students' immigration status was
directly relevant to the determination of their potential future
earning capacity, and should therefore be considered for
determination of damages in the case. (Hernández v. Paicius
(2003) 109 Cal. App. 4th 425, 460)
Current law provides that immigration status is irrelevant for
the purposes of liability in enforcing state labor, employment,
civil rights, and employee housing laws, unless the person
making the inquiry can show by clear and convincing evidence
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that the inquiry is necessary to comply with federal immigration
law (Civil Code Section 3339, Labor Code Section 1171.5).
While, existing law specifies a number of situations where
immigration status is not to be considered, it does not address
protections for minor children or personal injury matters. AB
560 establishes that the immigration status of a minor child,
under any applicable law, is irrelevant to the issues of
liability or remedy, unless the status is necessary to comply
with federal immigration law. This bill prohibits discovery or
other inquiry in a civil action or proceeding about a child's
immigration status, except in situations where the child places
his or her immigration status directly in contention, or the
person seeking to make the inquiry shows by clear and convincing
evidence that the inquiry is necessary to comply with federal
immigration law. As proposed to be amended, the bill will
clearly state that its provision are not intended to address
that adults are not likewise protected by existing law in the
same circumstances.
According to the author:
Undocumented children who seek recovery are disadvantaged
by their immigration status. More often a child does not
have the ability to determine their immigration status
and are put in a position to be treated unfairly when the
suffer some of the most egregious acts.
California continues to be a leader in protecting
undocumented children and families. AB 560 seeks to end
the legal argument that immigrant children deserve less,
when seeking recovery under the law, simply because they
are undocumented. Undocumented children deserve the same
protections as any other child that suffers intentional
or negligent harm. The financial discounting of any
child because of their immigration status is
unacceptable.
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Future loss of earnings as damages. According to an article by
Ken LaMance, Future Loss of Earnings or Wages, future loss of
earnings are damages awarded in personal injury cases when the
injury has permanently limited the plaintiff's ability to earn
wages. The plaintiff is then entitled to recover the reduction
in value of his or her future earning capacity. (Ken LaMance,
Future Loss of Earnings or Wages Legal Match
www.legalmatch.com/law-library .) Awards of loss of future
earnings are based on the person's potential to make money, even
if that person has never exercised earning potential. For the
child plaintiffs in the lawsuit against the Los Angeles Unified
School District, an award for future loss of earnings would be
calculated based on each child's ability to earn money.
The nexus between future loss of earnings and citizenship. The
problem with determining future loss of earnings for
undocumented children is that current case law allows an award
of damages to be based on a person's projected earning capacity,
but also assumes that an undocumented plaintiff will be deported
to his or her country of lawful citizenship. So although the
children in the Miramonte case suffered similar harms, those who
are U. S. citizens are awarded future earnings based on wages in
the United States, while the undocumented children are awarded
future earnings based upon wages in Mexico or another country
outside of the United States, which tend to be much lower. This
result is unfair, especially because it involves children who
all reside in the United States, attend school in the United
States, and suffered harm in the United States.
In Rodriguez v. Kline, the California Court of Appeals found
that damages for loss of earnings to a defendant who is
undocumented should be awarded based upon his projected earning
capacity after deportation to the country of his lawful
citizenship. This is the reason why the Los Angeles Unified
School District sought to keep the issue of immigration status
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relevant in the case before it ultimately settled. In all
fairness to the defendant, the Los Angeles Unified School
District did move to strike that defense during litigation of
the case. (Rodriguez v. Kline, (1986) 186 Cal. App. 3rd 1145.)
Necessity of the Bill. Existing law prohibits inquiry into a
person's immigration status for specific purposes, namely for
purposes of enforcing state labor, employment, civil rights, and
employee housing laws. (Civil Code Section 3339(a).) Existing
law also provides that a person's immigration status is
irrelevant to specific inquiries--the issue of liability, and in
proceedings or discovery undertaken to enforce state labor,
employment, civil rights, and employee housing laws-and that no
inquiry shall be permitted into a person's immigration status in
those contexts. (Civil Code Section 3339(b).)
These existing laws protect adults from inquiry into their
immigration status when they are fighting for their civil and
other legal rights, but there is nothing that specifically
addresses children. The bill provides a slightly more broad
protection to children, prohibiting all discovery or any similar
inquiry in a civil action or proceeding relating to a minor
child's immigration status, except where the minor child's
claims have placed his or her immigration status directly in
contention, or the person seeking such discovery shows by clear
and convincing evidence that the inquiry is necessary to comply
with federal immigration law. This broader protection is
appropriate and necessary to ensure that children are protected
and that bad actors cannot commit egregious acts against
children and later hide behind the child's immigration status to
reduce liability. The bill will settle the issue, as least in
regard to children, providing that the life of one child is as
valuable as the life of another child, and that the life and
well-being of a child must be protected, regardless of that
child's country of citizenship. The bill includes language to
ensure that although its provisions are specific to children,
adults deserve the same protections in the same situations.
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Author's Amendments. In an effort to avoid any confusion
regarding the legislative intent about the bill's provisions and
how adults in similar circumstances may be treated, the author
has agreed to the following amendments to the bill:
On page 2, line 7 after "discovery" insert: or other inquiry
in a civil action or proceeding
On page 2, line 15 insert: (d) The express application of this
act to minors is not intended to address in any way that
adults are not likewise protected by existing law in the same
circumstances.
ARGUMENTS IN SUPPORT: This bill enjoys support from a wide
range of groups, including human rights organizations, social
workers, immigrant advocacy groups, labor and religious groups.
According to the sponsor, the Mexican American Legal Defense and
Educational Fund (MALDEF):
No child victim of a serious tort, intentional or
negligent, should have their recovery limited because of
immigration status or ever be required to have their
status discussed or debated in court. No wrongdoer,
particularly an abuser, should face reduced consequences
because the child victim was undocumented. Immigrant
children deserve equal treatment. Their lives are worth
the same as other children, and that fact must be
reflected in the law.
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REGISTERED SUPPORT / OPPOSITION:
Support
California Immigrant Policy Center
California Labor Federation
California Catholic Conference, Inc.
National Association of Social Workers-California Chapter
California Communities United Institute
35 Individuals
Opposition
None on file
Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334
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