BILL ANALYSIS Ó
AB 560
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CONCURRENCE IN SENATE AMENDMENTS
AB
560 (Gomez)
As Amended June 23, 2015
Majority vote
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|ASSEMBLY: | | (April 27, |SENATE: |30-4 |(July 13, 2015) |
| |54-22 |2015) | | | |
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Original Committee Reference: JUD.
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 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
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comply with federal immigration law.
3)Provides that the express application of this act is not
intended to imply that adults are not likewise protected by
existing law in the same circumstances.
The Senate amendments make a technical change and add
co-authors.
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 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
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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.
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
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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 this 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 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:
0001073
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