BILL ANALYSIS Ó AB 2159 Page 1 ASSEMBLY THIRD READING AB 2159 (Gonzalez and Bonta) As Amended March 31, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Judiciary |8-1 |Mark Stone, Alejo, |Gallagher | | | |Chau, Chiu, Cristina | | | | |Garcia, Holden, | | | | |Maienschein, Ting | | | | | | | | | | | | ------------------------------------------------------------------ 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. AB 2159 Page 2 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 AB 2159 Page 3 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 AB 2159 Page 4 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: AB 2159 Page 5 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 AB 2159 Page 6 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