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
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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., 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.)
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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