BILL ANALYSIS Ó AB 2159 Page 1 Date of Hearing: March 29, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 2159 (Gonzalez) - As Introduced February 17, 2016 As Proposed to be Amended SUBJECT: EVIDENCE: IMMIGRATION STATUS KEY ISSUE: IN ORDER TO ENSURE THAT AN INJURED PERSON IS FAIRLY COMPENSATED FOR FUTURE LOST INCOME AND MEDICAL COSTS, REGARDLESS OF HIS OR HER IMMIGRATION STATUS, shoulD THE RULES OF EVIDENCE BE CHANGED TO forbid discovery INTO a person's immigration status AND PROHIBIT the admission of evidence about a person's immigration status IN A CIVIL ACTION FOR PERSONAL INJURY OR WRONGFUL DEATH? SYNOPSIS In recent years, the Legislature has taken steps to ensure 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. California labor laws, civil rights laws, and worker's compensation laws, among others, currently work to protect undocumented residents in this state without regard to their immigration status. According to the author, however, undocumented plaintiffs in injury cases are AB 2159 Page 2 being unfairly prevented from recovering full compensation for their injuries because their immigration status is discoverable and used against them in court. This can be directly attributed to a 1986 Court of Appeal decision, Rodriguez v. Kline (1986) 186 Cal.App.3d 1147, in which the court held that an undocumented worker injured in the U.S. is not entitled to be compensated based upon his or her projected earning capacity in the U.S., but rather may recover future lost wages based on projected earning capacity in the worker's country of lawful citizenship. Proponents report that defendants in personal injury and wrongful death cases rely on the Rodriguez decision to leverage fear of deportation against undocumented plaintiffs in order to reduce or even eliminate claims for future lost income and, increasingly, to limit future medical damages to what the injured person would expect to pay for medical care in his or her country of origin, rather than in the U.S. where the person lives but where medical costs are typically much higher. To address the inequities caused by the Rodriguez case and to ensure that injured persons are fairly compensated for their injuries and medical costs, regardless of their immigration status, this bill seeks to prohibit discovery of a person's immigration status in a civil action for personal injury or wrongful death case, and further provides that evidence of a person's immigration status - because it is considered irrelevant to liability - shall not be admitted into evidence. Proposed author's amendments further clarify that the bill applies only in wrongful death and personal injury cases, and is not intended to apply in the employment law context or impact the analysis of federal preemption law in that area. The bill is co-sponsored by the Consumer Attorneys and the Mexican-American Legal Defense and Educational Fund, and supported by a broad coalition of civil rights groups, organized labor, and immigrant advocates. Although one might anticipate that defense lawyers would have concerns with the bill's broad prohibition on admissibility and discoverability of immigration status in injury cases, at the time of this analysis there is no AB 2159 Page 3 known opposition to this bill. SUMMARY: Prohibits a person's immigration status from being admitted into evidence or being subject to discovery in certain civil cases. Specifically, this bill: 1)Provides that in a civil action for personal injury or wrongful death, evidence of a person's immigration status shall not be admitted into evidence, nor shall discovery into a person's immigration status be permitted. 2)Clarifies that the above provision does not affect the relevance, admissibility, and discoverability standards under other laws that contain protections for people based on immigration status, namely Civil Code Section 3339, Government Code Section 7285, Health and Safety Code Section 24000, and Labor Code Section 1171.5. 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); Labor Code Section 1171.5 (a); Government Code Section 7285 (a); Health & Safety Code Section 24000 (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 AB 2159 Page 4 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); Government Code Section 7285 (b).) 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. (Labor Code Section 1171.5 (b); Health & Safety Code Section 24000 (b).) 4)Provides that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to the issues of liability or remedy, except for employment-related prospective injunctive relief that would directly violate federal law. (Civil Code 3339.5 (a).) 5)Prohibits discovery or other inquiry in a civil action or proceeding relating to a minor child's immigration status except where the minor child's claims place the minor child's immigration status directly in contention or 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. (Civil Code 3339.5 (b).) 6)Pursuant to case law, provides that an undocumented worker injured in the United States is not entitled to be compensated AB 2159 Page 5 based upon his or her projected earning capacity in the United States, but rather may recover future lost wages based on projected earning capacity in the country of his or her lawful citizenship. (Rodriguez v. Kline (1986) 186 Cal.App.3d 1146.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: In order to ensure that injured persons are fairly compensated for their injuries and medical costs regardless of their immigration status, this bill seeks to prohibit discovery of a person's immigration status in a civil action for personal injury or wrongful death case, and further provides that evidence of a person's immigration status is inadmissible in such cases. This important change increases consistency with other laws that recognize that immigration status is not relevant to issues of liability and closes off one controversial exception to that general rule created by a single Court of Appeal decision from 1986. According to the author: The California Legislature has clearly indicated the importance of protecting the rights of undocumented people not only in the employment setting, but in many other respects. The Labor Code, Civil Code, and Government Codes all include language expressing protections for all individuals regardless of immigration status. However, under Rodriguez v. Kline (1986) 186 Cal.App.3d 1147, some Californians are at a disadvantage because their immigration status is used against them during the process of determining damages related to future income loss . . . (and) is being unjustly applied to cases involving recovery of future medical costs. Greater protections are therefore needed for AB 2159 Page 6 individuals seeking recovery of fair compensation for their injuries through our civil justice system. AB 2159 will ensure an injured person in California receives fair and just compensation for future income loss and future medical costs, regardless of immigration status. The co-sponsors of the bill, Consumer Attorneys of California (CAOC) and the Mexican American Legal Defense and Educational Fund (MALDEF), further state: AB 2159 seeks to end the legal argument that immigration status is relevant to determine the recovery an injured undocumented person should receive in California. No individual should have to face having immigration status raised in discovery for the sole purpose of intimidating or undervaluing his or her claims for future loss. Background on immigration status with respect to liability issues under existing law. Existing state law generally establishes that a person's immigration status is irrelevant to issues of civil liability, with few exceptions. For example, Civil Code Section 3339 establishes 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. Furthermore, in proceedings or discovery undertaken to enforce this broad range of state laws, Section 3339 permits no inquiry into a person's immigration status, except where the inquiry has been shown by clear and convincing evidence to be necessary in order to comply with federal immigration law. As enacted by SB 1818 (2002), these provisions are also mirrored elsewhere in the Government, Health and Safety, and Labor Codes. In addition, Civil Code Section 3339.5, enacted by AB 560 (2015), provides that a child's immigration statue is irrelevant to issues of liability or AB 2159 Page 7 remedy and prohibits discovery or inquiry of the child's immigration status in a civil action or proceeding, with specified exceptions allowed to ensure compliance with federal law. As state laws have continued to evolve in this area, some courts have furthered this public policy by holding that immigration status is irrelevant to liability issues. (See, e.g., Hernández v. Paicius (2003) 109 Cal.App.4th 452, 460, holding that, in a medical malpractice action, trial court erred in not granting plaintiff's motion to exclude reference to his immigration status because evidence of such status was entirely irrelevant to liability, particularly where plaintiff was not claiming loss of future earnings.) Rodriguez v. Kline: a notable and controversial exception to the inadmissibility rule. According to proponents of this bill, recent laws enacted by the Legislature to protect all Californians regardless of their immigration status are "substantially undermined" by a single Court of Appeal decision from three decades ago. In that case, Rodriguez v. Kline (1986) 186 Cal.App.3d 1147, the court held that an undocumented worker injured in the United States is not entitled to be compensated based upon his or her projected earning capacity in the United States, but rather may recover future lost wages based on projected earning capacity in the worker's country of lawful citizenship. The court explained: When an individual enters this country in violation of our immigration laws . . . he is subject to deportation. As a consequence, [Plaintiff's] status unquestionably bore upon the amount of his anticipated future earnings. That is to say, if [Plaintiff] were to return, voluntarily or involuntarily to Mexico, the income he could expect to receive there would be markedly less than a figure derived from his earnings during his sojourn here. To date the California courts that have considered this proposition at all have recognized its soundness." (Id. at 1148.) AB 2159 Page 8 Recognizing even then that evidence of the plaintiff's immigration status could potentially be quite prejudicial to the plaintiff, the court devised a burden-shifting solution to try to balance competing concerns. The court wrote: [W]henever a plaintiff whose citizenship is challenged seeks to recover for loss of future earnings, his status in this country shall be decided by the trial court as a preliminary question of law. (See Evid. Code, Sec.310.) At the hearing conducted thereon, the defendant will have the initial burden of producing proof that the plaintiff is an alien who is subject to deportation. If this effort is successful, then the burden will shift to the plaintiff to demonstrate to the court's satisfaction that he has taken steps which will correct his deportable condition. A contrary rule, of course, would allow someone who is not lawfully available for future work in the United States to receive compensation to which he is not entitled. [Emphasis added] (Id. at 1149, citing Alonso v. State of California (1975) 50 Cal.App.3d 242.) The court did not, however, explain how the plaintiff may "demonstrate to the court's satisfaction" that he has taken steps to "correct his deportable condition." However, short of obtaining citizenship or some other change in immigration status that makes the plaintiff no longer subject to deportation, it stands to reason that most plaintiffs will fail to meet this burden under this test. In such cases where the defendant prevails, the court held that "evidence of the plaintiff's future earnings must be limited to those he could anticipate receiving in his country of lawful citizenship." (Id. at 1149.) This bill seeks to address the unfair impact that the Rodriguez AB 2159 Page 9 vs. Kline decision has had upon injured undocumented persons. According to proponents, the Rodriguez decision unfairly allows defendants to inquire about the plaintiff's immigration status when that undocumented person, injured through no fault of their own, brings a personal injury action to recover for injuries (or the family brings a wrongful death suit if the person was killed.) Proponents contend it is inequitable and contrary to longstanding policy in California that an undocumented person's claim is devalued solely because of immigration status-a result directly attributable to Rodriguez. Practitioners in the field report that defendants in injury cases use Rodriguez to leverage the fear of deportation against undocumented plaintiffs in order to reduce or even eliminate claims for future lost income and, increasingly, to limit future medical damages to what the injured person would expect to pay for medical care in the plaintiff's country of origin, rather than in the U.S. where he or she lives but where medical costs are typically much higher. According to a recent article: As an example in real world dollars with respect to future loss of income, assume that an undocumented worker earns $10 per hour (minimum wage in California as of Jan. 1, 2016) in a fulltime manual labor job. Conversely, that same manual labor job in Mexico currently pays $4.19 per day. That is a difference of $75.81 per day, $379 per week, or $1,630 a month. On an annual basis, that's $19,708. If you are representing an undocumented worker who has suffered a catastrophic injury and will never be able to return to work, this means a $200,000 difference in 10 years. Our firm is currently handling a number of cases in which defendants have invoked Rodriguez to limit future economic damages. What we must appreciate (from a practitioner's standpoint) is the level of fear AB 2159 Page 10 engendered in our undocumented clients. Every time this issue arises, the undocumented client immediately wants to avoid deportation, even if it means including waiving all claims for future economic damages. (Bale, "Preserving Future Economic Damages for Undocumented Plaintiffs in Light of Rodriguez v. Kline." The Litigator, Vol 10, No.1 (Spring 2016).) CAOC has provided the Committee with the accounts of several actual examples of injured California residents where, because of their immigration status, the inequitable impact of Rodriguez is quite stark. For example, CAOC writes: A 29-year old father of two was catastrophically injured when his Nissan vehicle suddenly accelerated and crashed into a big rig truck. He was rendered a quadriplegic as a result and brought an action against Nissan to recover for his lost wages and future medical costs since he was unable to continue his work in construction and could not afford to cover his extensive medical costs. Due to his Spanish surname, the Defendant decided to investigate into his immigration status. When the Defendant discovered he was indeed undocumented, they argued that his future recovery should be reduced to what his wages and medical costs would have been if he was injured in Mexico, in pesos. That could mean a substantial reduction in his recovery, even though he was living and would continue to live in the U.S. Veronica, a food seller in her early 60s, suffered significant orthopedic and head injuries when she was struck by a vehicle while walking. Because she is undocumented, she decided to waive her loss of earnings claim due to Rodriguez in fear that her status would be disclosed and she would be deported and separated from her family. AB 2159 Page 11 In order to eliminate these inequities attributable to Rodriguez and to ensure that injured persons are fairly compensated for their injuries and medical costs regardless of their immigration status, this bill prohibits discovery of a person's immigration status in a civil action for personal injury or wrongful death case, and further provides that evidence of a person's immigration status (because it is considered irrelevant to liability) shall not be admitted into evidence. This bill is limited to personal injury and wrongful death cases, and does not apply in employment law cases. On its face and according to the author, the bill's provisions on discovery and admissibility of immigration status apply only in personal injury and wrongful death cases, and not in employment law cases or cases of any other kind. In Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, the California Supreme Court considered whether federal law preempted SB 1818 (Ch. 1071, Stats. 2002) which, among other things, prohibited discovery into the immigration status of employees who have sued their employers for violations of labor and employment laws unless the employer can show by clear and convincing evidence that the discovery is necessary to comply with federal immigration law. The Court held that federal law only limits SB 1818 in one very limited way-namely that an employee whose unauthorized status is discovered by the employer only after being fired or not rehired may not recover lost pay for the period after the discovery, because under federal law, an employer may not knowingly continue to employ an undocumented immigrant. In every other respect, the Court affirmed that all rights, remedies and protections against discovery of immigration status are available to California workers under SB 1818. AB 2159 Page 12 As currently in print, the bill specifically finds and declares that it "does not affect the rights or obligations of a person" under Civil Code Section 3339 and various other sections of law, discussed previously, enacted by SB 1818. In order to better ensure that the bill does not impact the analysis of federal preemption law in the employment context, as decided in Salas, the author proposes to make the following technical and clarifying amendments: On page 1, delete lines 1 to 5. On page 2, line 1 delete "SEC. 2" and replace with "SECTION 1" On page 2, line 5, after the period, insert "This section shall not affect the relevance, admissibility and discoverability standards under Section 3339 of the Civil Code, Section 7285 of the Government Code, Section 24000 of the Health and Safety Code, or Section 1171.5 of the Labor Code." ARGUMENTS IN SUPPORT: The bill is supported by a coalition of civil rights groups, organized labor, and immigrant advocates. Proponents contend that the bill is needed to combat the inequity that arises from the observation that inquiry into immigration status is strategically applied only when the undocumented person is from a country whose wages are lower than the U.S. For example, Equality California states: [The] defense will raise immigration status in a case brought by an immigrant from Mexico, arguing that she should receive only what she would earn in her same profession if she still lived in Mexico and the wage rate should be based on wages in Mexico, not U.S. wages. AB 2159 Page 13 However, the defense will not argue that immigration status is relevant when the injured party is from Sweden because her wages would be greater there. . . This sends the wrong message to an intentional or unintentional tortfeasor that some lives are worth less than others. All immigrants contribute greatly to the economic and cultural fabric of California and it is unconscionable to allow for some lives to be worth less than others." The Committee notes that under this bill, neither a party in a personal injury or wrongful death case would be able to use immigration status as a tool of unfair advantage. Under this bill, neither the plaintiff nor the defendant would be to argue for more or less compensation than would be expected in this country, because immigration status would be irrelevant and inadmissible, and not subject to discovery by either party. REGISTERED SUPPORT / OPPOSITION: Support Consumer Attorneys of California (co-sponsor) Mexican-American Legal Defense and Educational Fund (MALDEF) (co-sponsor) American Civil Liberties Union (ACLU) Asian Americans Advancing Justice AB 2159 Page 14 California Catholic Conference California Conference Board of the Amalgamated Transit Union California Conference of Machinists California Immigrant Policy Center CHIRLA Consumer Federation of CA Engineer & Scientists of CA, Local 20, IFPTE Local 20, AFL-CIO Equality California Immigrant Legal Resource Center International Longshore and Warehouse Union Our Family Coalition Policy Link Professional & Technical Engineers, IFPTE Local 21, AFL-CIO AB 2159 Page 15 Teamsters UNITE HERE, AFL-CIO Opposition None on file Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334