BILL ANALYSIS Ó
AB 560
Page 1
ASSEMBLY THIRD READING
AB
560 (Gomez)
As Amended April 20, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+---------------------+---------------------|
|Judiciary |8-2 |Mark Stone, Alejo, |Wagner, Gallagher |
| | |Chau, Chiu, Cristina | |
| | |Garcia, Holden, | |
| | |Maienschein, | |
| | |O'Donnell | |
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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.
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
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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.
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.
3)Provides that for purposes of enforcing state labor and
employment 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 the inquiry is necessary in order to
comply with federal immigration law.
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FISCAL EFFECT: None
COMMENTS: A lawsuit by more than 80 elementary school children
against the Los Angeles Unified School District (LAUSD) 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 LAUSD requested that the court deny the plaintiffs' motion
based on the holding in Hernández v. Paicius (2003) 109 Cal. App.
4th 425, 460, 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.
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 that the inquiry
is necessary to comply with federal immigration law. 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. This bill
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
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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.
This bill clearly states that its provision are not intended to
address that adults are not likewise protected by existing law in
the same circumstances.
Future loss of earnings as damages. According to an article by
Ken LaMance, Future Loss of Earnings or Wages (Legal Match
www.legalmatch.com/law-library ), 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. 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 LAUSD, 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 United States
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.
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In Rodriguez v. Kline (1986) 186 Cal. App. 3rd 1145, 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
LAUSD sought to keep the issue of immigration status relevant in
the case before it ultimately settled. In all fairness to the
defendant, the LAUSD did move to strike that defense during
litigation of the case.
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. 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.
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. This 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.
This 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
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protected, regardless of that child's country of citizenship.
This bill includes language to ensure that although its provisions
are specific to children, adults deserve the same protections in
the same situations.
Analysis Prepared by:
Khadijah Hargett / JUD. / (916) 319-2334 FN:
0000173