BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2159


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          ASSEMBLY THIRD READING


          AB  
          2159 (Gonzalez and Bonta)


          As Amended  March 31, 2016


          Majority vote


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          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Judiciary       |8-1  |Mark Stone, Alejo,    |Gallagher           |
          |                |     |Chau, Chiu, Cristina  |                    |
          |                |     |Garcia, Holden,       |                    |
          |                |     |Maienschein, Ting     |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
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          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.










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          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)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).)


          2)Pursuant to case law, provides 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 country of his or her lawful  
            citizenship.  (Rodriguez v. Kline (1986) 186 Cal.App.3d 1146.)


          FISCAL EFFECT:  None


          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  








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          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 proponents, "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."


          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.


          According to proponents of this bill, the laws recently 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  








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          Mexico, the income he could expect to receive there would be  
          markedly less than a figure derived from his earnings during his  
          sojourn here."  (Id. at 1148.)  


          This bill seeks to address the impact that the Rodriguez v.  
          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.  Proponents also argue that  
          the bill is needed to combat the inequity that arises from the  
          observation that inquiry into immigration status is  
          strategically applied by defendants only when the undocumented  
          person is from a country whose wages are lower than the U.S.   
          They contend that the defense never argues that immigration  
          status is relevant when the injured party is from a country like  
          Sweden, where calculation of the injured party's expected wages  
          would be greater than in this country.


          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.  Proponents provided the Judiciary  
          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:









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               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.  


          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 expressly limited to personal injury and wrongful  
          death cases, and does not apply in employment law cases.  Recent  
          amendments clarify that the bill does not affect the standards  
          of relevance, admissibility, or discovery under specified  
          sections of state law, in order to ensure that the bill does not  
          impact the analysis of federal preemption law in the employment  
          context.


          Finally, it should be noted that this bill would not allow  








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          either party in a personal injury or wrongful death case to use  
          immigration status as a tool of unfair advantage.  Under this  
          bill, neither the plaintiff nor the defendant would be able 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.




          Analysis Prepared by:                                             
          Anthony Lew / JUD. / (916) 319-2334  FN: 0002681