BILL ANALYSIS                                                                                                                                                                                                    ”



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          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  








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          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  








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          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  








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            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  








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            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  








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               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  








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          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., HernŠndez 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.)  








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          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  








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          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  








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               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.








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          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. 










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          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.   








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               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 









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          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









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          Teamsters


          UNITE HERE, AFL-CIO




          Opposition


          None on file




          Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334